[00:00:00] Speaker 01: this morning the first is number 23 2121 Samson electronics versus power to be Mr. Haber. [00:00:17] Speaker 03: Good morning, Your Honors. [00:00:18] Speaker 03: May it please the Court. [00:00:20] Speaker 03: Benjamin Haber for Appellant Samsung. [00:00:22] Speaker 03: We're going to be talking about the 070 and 369 patents today. [00:00:25] Speaker 03: Here the Board's decision is based on a fundamental error that infected all of its conclusions below. [00:00:31] Speaker 03: The Board refused to actually consider the combination that was presented to it. [00:00:35] Speaker 03: The combination here is simple. [00:00:37] Speaker 03: The main priority, Keeley, is a device with an intuitive user interface software using a pen-based stylus with a notebook computer. [00:00:45] Speaker 03: And GIVA, the secondary reference, is brought in for its specific teachings about light-based stylus digitizing hardware. [00:00:52] Speaker 03: So today I'm going to discuss the board's three major errors. [00:00:55] Speaker 03: First, I'll discuss the board's refusal to consider Samsung's arguments. [00:01:00] Speaker 03: Second, I will discuss the board's errors when addressing certain claim elements. [00:01:03] Speaker 03: And third, I will discuss errors as they relate to motivations to combine. [00:01:07] Speaker 00: So the board interpreted the petition as saying that there was an intent to incorporate parts of Keighley. [00:01:18] Speaker 00: but not all parts of Keeley, right? [00:01:23] Speaker 00: How do we review that? [00:01:25] Speaker 00: Is that reviewed for an abuse of discretion? [00:01:27] Speaker 00: Is it reviewed for substantial evidence? [00:01:30] Speaker 00: That is, whether a reasonable person could read it that way. [00:01:33] Speaker 00: What's the standard? [00:01:34] Speaker 03: So the standard of review here, Your Honors, and I wanted to make a small correction, but the court [00:01:41] Speaker 03: interpreted the petition as incorporating parts of GIVA and not other parts of GIVA, the secondary reference. [00:01:47] Speaker 03: And the standard of review here is a compliance with the APA is reviewed under an arbitrary and capricious standard. [00:01:58] Speaker 03: The factual issues in interpreting the patent, for example, are substantial evidence. [00:02:04] Speaker 03: And the board's interpretation. [00:02:06] Speaker 00: What about the specific standard of review that applies to when we look at the board's determination that the reply raised a new issue? [00:02:15] Speaker 00: Isn't that reviewed for abuse of discretion? [00:02:19] Speaker 03: Yes. [00:02:20] Speaker 03: So it's reviewed, at least in part, for an abuse of discretion. [00:02:23] Speaker 03: I think the applicable case is the core photonics of the Apple case. [00:02:27] Speaker 03: That's 84 F fourth 990. [00:02:30] Speaker 03: And there are actually two parts of the standard of review there for this issue on reply. [00:02:35] Speaker 03: The question of whether or not the argument is new is actually reviewed under a de novo standard. [00:02:40] Speaker 03: And the question of whether or not the arguments are responsive is reviewed under an arbitrary and capriciousness standard. [00:02:47] Speaker 04: And that's that. [00:02:48] Speaker 04: That's when looking at the reply, correct? [00:02:51] Speaker 04: Correct. [00:02:51] Speaker 04: When looking at the reply. [00:02:52] Speaker 04: What about the board's reading of the petition? [00:02:55] Speaker 04: Didn't we say in core photonics that we also review the board's reading of the petition for abuse of discretion? [00:03:04] Speaker 04: I'm at page 1002 of four photonics. [00:03:08] Speaker 04: It is for the board to determine what grounds are being articulated in a petition and what arguments and evidence are being referred to in the responses and any replies. [00:03:19] Speaker 04: And then I think we go on to say we review those assessments for abuse of discretion. [00:03:23] Speaker 04: Is that correct? [00:03:23] Speaker 04: That is correct. [00:03:25] Speaker 04: Your argument that the board misunderstood what you were trying to say in the petition, we review that for abuse of discretion? [00:03:33] Speaker 04: Yes, that is correct. [00:03:35] Speaker 01: So help me, because I'm a little confused here. [00:03:39] Speaker 01: You rely on the combination of Heva and Healy to satisfy the claim limitations. [00:03:46] Speaker 01: And the particular focus here is on the touch-sensitive aspect of this, right? [00:03:53] Speaker 01: Yes, that's correct. [00:03:54] Speaker 01: And in your reply, you say, well, we're not relying on the digitizer and magnetic [00:03:59] Speaker 01: coils of keely so there's no problem with the incorporation of that right so but I'm still confused because Giva does not teach touch sensitivity right? [00:04:17] Speaker 01: I don't think that is correct your honor. [00:04:19] Speaker 01: Giva does teach touch sensitivity. [00:04:22] Speaker 01: I'm not sure that I understand how that's the case because it you certainly can [00:04:29] Speaker 01: use Givet to measure the z-axis and touching the screen would give you a zero rate for the z-axis. [00:04:46] Speaker 01: But I don't understand how [00:04:49] Speaker 01: in terms of touch sensitivity as described in the specification, GIVA is doing what's described. [00:04:57] Speaker 01: I mean, it's not, for example, touching an icon or something like that, which would provide information. [00:05:05] Speaker 01: It's just not, GIVA's not capable of doing that. [00:05:10] Speaker 03: GIVA is not a system that does physical contact, physical touch. [00:05:14] Speaker 03: And if you look at the patent, I'm at Appendix [00:05:17] Speaker 03: 114 the way the patent is just talking about touch sensitivity is light based So it's a light based stylist and so when the patent is talking about touch and user interaction. [00:05:27] Speaker 01: They're not actually talking about Physical contact they're talking about so if I were to conclude that you were wrong about that and that touch Sensitivity is talking about physical contact like touching an icon Then your combination wouldn't show what was required, right? [00:05:45] Speaker 03: Respectfully, Your Honor, no, that's not correct. [00:05:47] Speaker 03: It actually does include teachings related to touching, that the stylus coming into physical contact with the touch sensor. [00:05:54] Speaker 03: So one, it's not accurate that the claims require physical contact. [00:05:59] Speaker 01: No, no, I understand. [00:05:59] Speaker 03: But even if they did, I don't want to direct your understanding. [00:06:02] Speaker 01: Wait, it's not a question of physical contact. [00:06:04] Speaker 01: It's a question of whether the physical contact is identifying, as the specification describes, [00:06:13] Speaker 01: you know, touching an icon that does a particular thing. [00:06:17] Speaker 01: In other words, the very fact of touching doesn't make it touch sensitive. [00:06:24] Speaker 01: It seems to me those are two different things. [00:06:30] Speaker 03: The act of physical contact is certainly different than an interaction without physical contact. [00:06:37] Speaker 03: That is true. [00:06:38] Speaker 03: But I do want to direct Your Honor's attention to Appendix 1363, where Giva specifically talks about the light emitting cursor device 10 touching planar element 14 and emitting a beam of light. [00:06:49] Speaker 03: So even the idea of physical contact is contained in Giva. [00:06:53] Speaker 03: Giva does teach that requirement to the extent it is part of the claims. [00:06:58] Speaker 01: Well, it teaches physical contact, perhaps, but not physical contact that records the result and accomplishes the transmittal of information within the display. [00:07:14] Speaker 03: So the back end side of that is really a software aspect. [00:07:18] Speaker 03: And that software aspect comes from Healy. [00:07:21] Speaker 03: Healy takes the output of the digitizer and then associates it with an icon on the display [00:07:27] Speaker 03: to show that the user is interacting, for example, with a right icon or is taking some other contact. [00:07:33] Speaker 03: So the output of Giva is going to be a point or a motion or tracking the stylus. [00:07:41] Speaker 03: That output is sent to the software Keely. [00:07:44] Speaker 03: And then Keely interprets it and determines that a user is, for example, interacting with a certain icon. [00:07:49] Speaker 03: And that's the combination that we presented. [00:07:51] Speaker 03: All of that kind of back-end hardware functionality. [00:07:54] Speaker 01: Where is that description in the petition or the reply that you just gave? [00:08:00] Speaker 03: Right. [00:08:00] Speaker 03: So if you look at the petition at appendix page 278, this is where we set forth the combination. [00:08:15] Speaker 03: And it's fairly plain here. [00:08:20] Speaker 03: what is happening. [00:08:21] Speaker 03: So Keely's tool icons from Figure 6 have been superimposed to show the display screen outlined in red. [00:08:26] Speaker 03: So you can see the display screen on the next page that shows the icons. [00:08:31] Speaker 03: It forms a touch-sensitive plane, which is compatible with Gibus Painter Element 14, also outlined in red. [00:08:37] Speaker 03: And so what we're depicting here is that [00:08:39] Speaker 03: The planner element is positioned over Keely's display, which displays the icons. [00:08:44] Speaker 03: The user uses the stylus to interact with the icons. [00:08:46] Speaker 03: Keely then interprets that and takes the appropriate action it needs to take. [00:08:51] Speaker 03: You can see that as we march through the claim elements, there are claim elements, for example, [00:09:02] Speaker 03: At appendix 284, we describe the term. [00:09:07] Speaker 01: Where does this describe? [00:09:08] Speaker 01: I mean, the way you described it a moment ago, using the software of Keeley and the stylus of Giva to create, but I don't see that description here on 278. [00:09:21] Speaker 01: So that was... It talks about Keeley's tool [00:09:28] Speaker 01: icons being superimposed, et cetera, et cetera. [00:09:31] Speaker 01: And it talks about getting the touch sensitive from Keely. [00:09:36] Speaker 01: But the explanation that you gave doesn't seem to me to appear on page 278. [00:09:41] Speaker 03: So page 278 is the combination. [00:09:43] Speaker 03: And then if you look at the claim elements that actually have the interaction components that are later in the claim. [00:09:49] Speaker 03: And so you can see, for example, at appendix 284, we're determining the 3D position. [00:09:57] Speaker 03: And then you can see at Appendix 285 and 286, this is done with Giva. [00:10:03] Speaker 03: Giva's Figure 7 is displayed there. [00:10:05] Speaker 00: And then the next step... What particular language are you relying on on 284 and 285? [00:10:12] Speaker 00: I just want to make sure that I... [00:10:14] Speaker 00: understand what you're pointing to on these pages. [00:10:17] Speaker 03: Yeah, so if you look at 284, it states there, PASIDA would have combined Keely's display plane with the sensor array and processor of GIVA in order to collect the positional input. [00:10:27] Speaker 03: So the GIVA's processor and hardware is collecting the positional input. [00:10:32] Speaker 03: So those are the coordinates that you can see in GIVA's figure 7 on the next page, appendix 26. [00:10:39] Speaker 03: And then [00:10:40] Speaker 03: The following claim element says that you have to basically take that information and use it to select a selectable icon. [00:10:47] Speaker 03: And you can see the description there at 286 and 287 is describing the software of Giva. [00:10:53] Speaker 01: And you can see the software of Giva. [00:10:55] Speaker 03: I thought you were using the software of Healy. [00:10:58] Speaker 03: That's correct. [00:10:58] Speaker 03: I misspoke. [00:10:59] Speaker 03: The software of Healy. [00:11:00] Speaker 01: Where does it show that? [00:11:01] Speaker 03: Appendix 287, you can see Figure 9. [00:11:04] Speaker 03: Figure 9 is, it's a flowchart, it's a flowchart describing how the software works. [00:11:09] Speaker 03: And you can see superimposed next to Figure 9, Figure 6, the resulting output that's shown on Keely's display, write icons, type icons, select icons. [00:11:18] Speaker 03: And so those are the things that Geva's pen is interacting with. [00:11:22] Speaker 03: When you raise it or lower it, and you're selecting various icons. [00:11:26] Speaker 00: To be clear, the figures, Figure 9 and Figure 6, shown at page 287, is from Keighley, right? [00:11:32] Speaker 03: Yes, that is correct. [00:11:34] Speaker 00: What about the board? [00:11:38] Speaker 00: You referred us to page 278. [00:11:42] Speaker 00: and a particular sentence there. [00:11:44] Speaker 00: And that particular sentence that you cited refers to the expert's declaration, Dr. Peterson, I think. [00:11:52] Speaker 00: And his language, that is the one thing that's cited to support the sentence, and his language to me seems to be probably the most [00:12:01] Speaker 00: challenging sentence for you of all, everything in the record. [00:12:07] Speaker 00: And that's where he says, you know, I've shown how Healy's touch sensitive plane can be used as Jeeva's planar element, suggesting that the touch sensitive plane is being used instead of Jeeva's planar element. [00:12:23] Speaker 00: What's your response to that? [00:12:24] Speaker 03: That is the way that [00:12:26] Speaker 03: opponent counsel has interpreted that claim language and and the board and the board that is correct on reply we put in a reply declaration from from Mr. Peterson to specifically make plain that that was not his opinion and to clarify that you know his opinion was instead of saying [00:12:43] Speaker 03: as you could have said with, you could have explained things more clearly. [00:12:45] Speaker 01: I understand that, but where does the reply articulate the theory that you've been presenting here this morning of using the software of Neely and a plainer element from Eva to produce a touch-sensitive display? [00:13:02] Speaker 03: If you look at appendix 3888, that's in the reply, we specifically spell out what the combination is. [00:13:10] Speaker 03: The combination advanced by petitioner does not change Keely's generic LCD and does not rely on any aspect of Keely 2's alternative digitizer approaches. [00:13:20] Speaker 03: We've made very, very clear. [00:13:21] Speaker 01: But where does it say it's the software from Keely and the planar element from Diva? [00:13:28] Speaker 03: You can see that if you look back one [00:13:30] Speaker 03: page, appendix 3887. [00:13:34] Speaker 03: They failed to consider a particular specific combination of GIVO's input functionality, that's the hardware, and Keeley's user interface features, that's the software. [00:13:43] Speaker 03: That was the combination that was presented below. [00:13:45] Speaker 03: And that was not what the board addressed. [00:13:48] Speaker 03: At every opportunity, they addressed a combination that specifically included, for example, Healy 2's electromagnetic digitizer and other components that weren't actually part of the combination. [00:13:59] Speaker 00: The phrase is input functionality and user interface features are pretty broad. [00:14:06] Speaker 00: Aren't they? [00:14:06] Speaker 00: I mean, it's hard. [00:14:07] Speaker 00: For me, looking at this to know what that means with respect to what you're including from each system, you can explain why I'm wrong. [00:14:18] Speaker 00: That was my initial reaction to this. [00:14:20] Speaker 03: And I think when you look at the way that we march through the claim elements, you can see the input functionality is the hardware. [00:14:28] Speaker 03: It's the stylus. [00:14:29] Speaker 03: It's all of the features of GIVA that describe how that input is collected. [00:14:33] Speaker 03: And the user interface functions is the software. [00:14:35] Speaker 03: That's all of the flow charts from Keely. [00:14:37] Speaker 03: And those are all of the things that are set out in the petition. [00:14:40] Speaker 04: At 3889, the next page of the reply, reply three, you go on to say, petitioner's combination is that Giva's sensor arrays and planar element would simply be placed on top of Keely's conventional LCD, right? [00:14:56] Speaker 04: That's correct. [00:14:56] Speaker 04: Is that theory articulated in the petition? [00:14:59] Speaker 04: And if so, where? [00:15:00] Speaker 03: Yes, and I would again direct, Your Honors, to 287. [00:15:05] Speaker 03: That shows Keely's LCD. [00:15:11] Speaker 04: Does it show it being placed on top? [00:15:18] Speaker 04: The Geva sensor arrays being placed on top of Keely's conventional LCD. [00:15:22] Speaker 03: That was what we intended when we made this figure. [00:15:25] Speaker 03: It does not superimpose this rectangle onto this rectangle. [00:15:29] Speaker 03: We do make that. [00:15:30] Speaker 03: superposition in the reply, but that was the intent of what's shown on page 279. [00:15:34] Speaker 04: And isn't it clear that the board goes on at A35 to go to actually consider, even though it thinks that you've failed to make this argument in the petition, it nonetheless goes on to consider [00:15:46] Speaker 04: and reject ultimately this combination that you set out at 3889. [00:15:51] Speaker 03: So it purports to consider it, but they didn't actually consider it. [00:15:55] Speaker 03: What you'll see is that about halfway through the board's final written decisions, they say, OK, now we're going to consider the combination. [00:16:01] Speaker 03: But at every opportunity where they do that, the combination that they're considering is not the combination that we presented on the reply. [00:16:07] Speaker 03: And I want to direct them. [00:16:08] Speaker 01: You're saying the combination that they considered included the digitizer and that other aspect of kneeling? [00:16:18] Speaker 03: Correct. [00:16:19] Speaker 03: And if you look at appendix 36, you can see they call this a redundant combination. [00:16:23] Speaker 03: This is the combination that they considered when they were purporting to consider a combination. [00:16:28] Speaker 03: It is a combination that includes keeling. [00:16:30] Speaker 03: Keely-2 and its electromagnetic digitizer and Giva's light sensor. [00:16:36] Speaker 03: And they call this a redundant combination. [00:16:37] Speaker 03: And they say one of Skittle and the Yacht would not have been motivated to make this redundant combination. [00:16:41] Speaker 03: The problem is that isn't the combination. [00:16:44] Speaker 03: We never argued that Keely-2 would be included in our combination. [00:16:48] Speaker 03: Giva specifically replaces Keely-2. [00:16:52] Speaker 03: And that's what Giva says. [00:16:53] Speaker 03: Giva says that there are these electromagnetic digitizers out there. [00:16:57] Speaker 03: But GIVA's combination is better. [00:17:00] Speaker 03: You should remove your electromagnetic digitizer and use GIVA as an improved alternative. [00:17:04] Speaker 03: And that's what we argued. [00:17:06] Speaker 03: And that's what the board should have considered. [00:17:08] Speaker 03: But they just didn't, despite them saying what they did. [00:17:11] Speaker 00: Can I ask you? [00:17:12] Speaker 00: You, I think, pointed us to page A287 and the figures there, figure 9 and figure 6 from Keighley, to show us that the combination that was being proposed was to put GIVA's [00:17:28] Speaker 00: I guess, surface on top of the display in Keighley. [00:17:34] Speaker 00: But how can I read that from this figure when there's nothing shown in these figures that combine figures from Eva? [00:17:40] Speaker 00: I'm just having a hard time. [00:17:42] Speaker 03: So the intent when we created this figure was this red aspect, the planar element that's outlined in red, would be positioned in Keighley's figure one, which is also outlined in red. [00:17:53] Speaker 03: That was the intent of this figure, to show that these things correspond to the same. [00:17:57] Speaker 00: And this is the figure on page A287. [00:18:00] Speaker 03: Correct. [00:18:00] Speaker 00: Which doesn't show anything from GIVA, right? [00:18:04] Speaker 03: So GIVA is figure 6. [00:18:07] Speaker 03: So this entire position-determining input device of GIVA is shown in figure 6. [00:18:13] Speaker 03: And that's the entire thing, except for the stylus. [00:18:16] Speaker 03: It's the sensors, it's the planar element, it's a processor. [00:18:20] Speaker 03: And what's outlined in red is planar element 14. [00:18:23] Speaker 03: What's outlined in red in Keely's figure one is where that would be positioned on top of Keely. [00:18:30] Speaker 00: Given the standard of review, I understand that your expert said, hey, I see what you said in my declaration, but that's not what I meant. [00:18:42] Speaker 00: How much credit do we give that, given that the standard of review is abuse of discretion, and we look at what the board did was reasonable or not, and how they interpreted the petition was reasonable or not? [00:18:54] Speaker 00: So the issue of point is the petition sets the stage, right? [00:19:00] Speaker 03: The petition sets the stage. [00:19:01] Speaker 03: And so I think there's two things that you have to ask when you review this. [00:19:05] Speaker 03: One is the combination that we presented new. [00:19:08] Speaker 03: And that's something that you have to look at on a de novo standard. [00:19:13] Speaker 03: And two, you have to ask yourself whether or not what is in the reply is responsive to patent owner's arguments. [00:19:19] Speaker 03: Because a reply is allowed to respond to patent owner's arguments. [00:19:23] Speaker 03: And the patent owner here looked at the combination and said, we don't understand what you're doing. [00:19:27] Speaker 03: We think you're doing this. [00:19:29] Speaker 03: And our expert came back and said, that isn't what I was doing. [00:19:33] Speaker 03: He goes through in the reply declaration at appendix 4134 exactly what his combination was that he believed he was setting forth. [00:19:42] Speaker 03: And then he said, I understand that patent owner seems to have an erroneous view of my combination. [00:19:47] Speaker 03: And let me just say what it is. [00:19:48] Speaker 03: This is what it is. [00:19:49] Speaker 03: And that, I think, is permissible because it's entirely responsive to what patent owners said. [00:19:55] Speaker 03: And if patent owner believed that that was not his original combination, they could have deposed our expert. [00:20:00] Speaker 03: But they didn't. [00:20:01] Speaker 03: They did not ask him. [00:20:02] Speaker 03: They make this argument that the expert intended to do something. [00:20:07] Speaker 03: And the expert didn't. [00:20:08] Speaker 03: And the only evidence in the record of what the expert intended to do, what combination he intended to present, is the reply declaration. [00:20:15] Speaker 03: The reply declaration says specifically, this is the combination that I intended to present. [00:20:20] Speaker 03: And here it is in plainer terms. [00:20:22] Speaker 03: to respond directly to what patent owner's argument is. [00:20:25] Speaker 03: And so that question of responsiveness, that's really the abuse of discretion standard. [00:20:33] Speaker 03: And so you have to ask yourselves, was it an abuse of discretion to not consider what the expert said on reply when the expert is responding directly to what the patent owner's argument was? [00:20:43] Speaker 00: Is it really fair to say they didn't consider it? [00:20:46] Speaker 00: Or you're saying it's not fair to credit it. [00:20:48] Speaker 00: That's very different than did they consider it, right? [00:20:53] Speaker 00: I mean, it might be a technicality, but I do think they addressed it. [00:20:58] Speaker 00: And what they said was that they thought we're reading the petition differently. [00:21:02] Speaker 03: So what they said, when they purport to apply the reply evidence, they go through and they purport to apply the reply evidence, what they said is that they compare what the expert said to a combination that includes Keely-2 that isn't what the expert presented. [00:21:20] Speaker 03: They kept the digitizer and the magnetic coils. [00:21:23] Speaker 03: They kept the digitizer and the magnetic coils. [00:21:24] Speaker 03: And the expert said, that's not my combination. [00:21:27] Speaker 03: That was never my combination. [00:21:29] Speaker 03: when the board considered that combination, they couldn't have considered what the expert said, because the expert said that wasn't the combination that he was presenting. [00:21:40] Speaker 01: OK. [00:21:40] Speaker 01: Unless there are further questions, then we're out of time. [00:21:42] Speaker 01: Mr. Hever, we'll give you two minutes for our model. [00:21:44] Speaker 01: Thank you, Your Honors. [00:21:46] Speaker 01: OK. [00:21:46] Speaker 01: Thank you. [00:21:48] Speaker 01: Mr. Deming? [00:22:06] Speaker 01: uh... good morning from uh... mark them on behalf of the appellee power to be made it please the court the board correctly found that that sounds so just help help me here for a month was put aside the question of what they are you and whether uh... this morning's argument was reflected in the petition reply [00:22:25] Speaker 01: They're arguing that combining the planar element from Giva and the software from Keeley gives you the claimed invention. [00:22:36] Speaker 01: What's your view of that? [00:22:38] Speaker 01: Is that correct that that combination would give you the claimed invention or not? [00:22:43] Speaker 02: No, Your Honor, I would disagree. [00:22:44] Speaker 02: And I don't believe we've ever heard about the software of Keeley being incorporated anywhere in the papers up until this morning. [00:22:51] Speaker 02: I think the original combination that was in the petition [00:22:55] Speaker 02: was very clearly. [00:22:56] Speaker 01: No, no, but you're addressing the exact argument I want to put aside. [00:23:01] Speaker 01: OK. [00:23:01] Speaker 01: The question is, put aside the question of whether it was properly argued. [00:23:06] Speaker 01: I understand that's a significant issue here. [00:23:09] Speaker 01: But does the combination of the Geva planer element and the Neely software give you the invention? [00:23:18] Speaker 02: No, Your Honor. [00:23:18] Speaker 02: What the board found, and I think if I understand what you're saying, is that if you had Keeley without the digitizer, you just had the software, whatever that is. [00:23:26] Speaker 01: Yeah. [00:23:26] Speaker 02: And you had the planar element with that digitization. [00:23:29] Speaker 01: The board said no, because once- The board didn't seem to consider that, because they kept the digitizer in the magnetic coil. [00:23:37] Speaker 02: The board did not keep the digitizer in the new combination. [00:23:41] Speaker 02: The board said repeatedly that the [00:23:45] Speaker 02: Samsung was removing the digitizer, Samsung responding to our argument about redundant sensors and extra complexity and resource usage. [00:23:53] Speaker 02: Samsung said in the reply, we did not mean to include the digitizer. [00:23:57] Speaker 01: Where does the board say that they're considering a combination that doesn't include the digitizer and the magnetic thought? [00:24:07] Speaker 02: Can you find it, Your Honor? [00:24:11] Speaker 02: So for example, at appendix 32 to 33, one of the points that we made was that without the digitizer, Keeley's LCD display would no longer be a touch sensitive display. [00:24:24] Speaker 02: And the board at 32, 33, [00:24:27] Speaker 02: essentially summarize our argument of that Keeley requires a digitizer to provide a touch-sensitive display and that the new combination eliminates Keeley's digitizer and thus cannot satisfy the claim display screen forming a touch-sensitive display plane. [00:24:41] Speaker 02: Where exactly is that on 32 and 33? [00:24:44] Speaker 02: It's on 33. [00:24:53] Speaker 02: At the very first paragraph, Your Honor, [00:24:56] Speaker 02: The board summarizes patent owner's argument, which is power to be. [00:24:59] Speaker 02: And then the very last sentence, they say, we agree with patent owner. [00:25:04] Speaker 02: And so to answer your question, Judge, the board is saying that once you remove the digitizer from Keely, Keely no longer teaches the functionality of touch. [00:25:13] Speaker 02: And so even if Keely has some software that was never specifically identified by Samsung, once you remove the digitizer, Keely doesn't teach that anymore. [00:25:21] Speaker 02: Samson would have to find that teaching in GIVA, and that teaching does not exist in the embodiment that they were relying on. [00:25:27] Speaker 02: I did want to discuss all of the things that the board considered in reaching its conclusion that the original combination did not include the planar element. [00:25:44] Speaker 02: There's a statement in the papers that suggests that this all hinges on [00:25:48] Speaker 02: the one sentence by the expert that says the display is used as planar element. [00:25:54] Speaker 02: But the board actually considered numerous statements that Samson made in the petition, where it was very clear it was relying on Healy's display and only the display as the touch-sensitive display plane. [00:26:05] Speaker 02: So for example, in discussing element 1B, which is the element at issue here, at page 278, Samson said, Healy's notebook or notepad computer includes a liquid crystal display. [00:26:17] Speaker 02: They go on later in the paragraph to say, the display screen outlined in red forms a touch-sensitive plane. [00:26:24] Speaker 02: It's the display that forms the touch-sensitive plane. [00:26:27] Speaker 02: It's not the display in anything else. [00:26:29] Speaker 02: And they make numerous more statements in discussing other elements, referring back consistent with that. [00:26:35] Speaker 02: So at appendix 279 to 280, they say, Healy provides a touch-sensitive display plane, contrasting that with Giva, which provides light sensors. [00:26:45] Speaker 02: They never say Giva provides a planar element. [00:26:47] Speaker 02: on page 283 of the appendix, discussing element 1F. [00:26:53] Speaker 02: They say, as explained above, a postita would have combined Healy's display plane with the sensor array of GIVA. [00:27:00] Speaker 00: At page 280, they say GIVA provides light sensor arrays disposed first and second edges of the planar element 14. [00:27:08] Speaker 00: What is your response to that? [00:27:10] Speaker 02: Your Honor, that's just a general description of GIVA. [00:27:13] Speaker 02: They were not incorporating the planar element. [00:27:21] Speaker 02: I mean, immediately above that is where they say, the previous paragraph I was referring to, where they say Keely provides a touch-sensitive display plane. [00:27:37] Speaker 02: A procedure would have been to say that Keeley's display plane thus includes a sensor array. [00:27:41] Speaker 02: They talk about, this is another question that they say in their reply, that they didn't mean to incorporate the hardware of Keeley 2, that they were just using Keeley as this agnostic black box that you could plug any input device into. [00:27:53] Speaker 01: No, well, that's not quite right. [00:27:54] Speaker 01: They're saying they're relying on Keeley for the software. [00:27:59] Speaker 02: Well, Your Honor, Keeley incorporates by reference Keeley 2. [00:28:02] Speaker 02: And they, in their petition, specifically rely on Keeley 2 and specifically rely on the hardware of Keeley. [00:28:09] Speaker 02: So on 279, the last sentence, they say, the housing would have been understood to include the notebook computer, which includes all of the components, the display, the processors, the memory, the sensors. [00:28:20] Speaker 02: And the sensors of Keeley are described in Keeley 2, which is incorporated by reference, which is the digitizer. [00:28:27] Speaker 04: There's multiple places where the petition says that Keely and Geva are compatible with one another, for instance, at 278. [00:28:36] Speaker 04: Isn't that clearly making the argument as to the combination that includes the Planner element 14? [00:28:42] Speaker 02: No, I disagree. [00:28:45] Speaker 02: The board looked. [00:28:46] Speaker 02: It said it counted them. [00:28:47] Speaker 02: It looked at 10 times that the petition allegedly discussed the Planner element. [00:28:51] Speaker 02: And the board said at appendix 29, [00:28:54] Speaker 02: Upon consideration of all the discussion of Geva's planar element in the petition, we find that nothing in the petition indicates petitioner's proposed combination was placing Geva's planar element on top of Keely's display. [00:29:07] Speaker 02: So the planar element was mentioned at times. [00:29:10] Speaker 02: But these were in general descriptions of DIVA or in other elements. [00:29:14] Speaker 02: There was never any point that the board considered all of them. [00:29:16] Speaker 04: This is why I have- Is it your contention that the petition is ambiguous and maybe a little bit inconsistent on how it's using planar element, whether it's using it or replacing it? [00:29:26] Speaker 04: Or is it totally unambiguous and they just never make the argument that they're contending they intended to make? [00:29:34] Speaker 02: I mean, our position is they were clear that it was Keely's display that forms a touch-sensitive display plane. [00:29:40] Speaker 02: That was it. [00:29:41] Speaker 02: It was Keely's display. [00:29:43] Speaker 00: And they also incorporate. [00:29:43] Speaker 04: I'm sorry. [00:29:44] Speaker 04: What if we see it as ambiguous? [00:29:46] Speaker 04: That sometimes they seem to be saying what you're suggesting. [00:29:50] Speaker 04: Other times it seems like, of course, the only operable combination would be what they're telling us and clearly set on reply they meant. [00:29:59] Speaker 04: If we see it as that sort of jumble, what do we do? [00:30:03] Speaker 02: Your Honor, if the court were to see it as ambiguous, I don't know how it could overrule the board on an abusive discretion standard. [00:30:09] Speaker 01: because it was ambiguous than the board's determination would ultimately be a reasonable one how can it be that the reply isn't responsive to your audience it seems to be very odd under apple and other cases [00:30:25] Speaker 01: The Board has a history of reading the reply requirements too restrictively, and we've said that you can't read it that restrictively, and you have to allow response and elaboration to arguments that have been made before. [00:30:40] Speaker 01: And doesn't this seem like a pretty clear response in the reply to the arguments that you are making? [00:30:47] Speaker 02: Your honor, the petition is what defines the grounds of the petition. [00:30:51] Speaker 01: No, you're not answering my question. [00:30:52] Speaker 02: I'm getting there. [00:30:52] Speaker 02: I'm sorry. [00:30:53] Speaker 02: I'm saying that the petition kind of sets the framework for how you measure whether or not something's responsive. [00:30:57] Speaker 02: And so the petition sets the grounds. [00:31:00] Speaker 02: The patent owner made the responsive arguments. [00:31:02] Speaker 02: And then on reply, if they were simply res- You're not answering my question. [00:31:05] Speaker 01: that the reply responded to the arguments that you were making, right? [00:31:10] Speaker 02: I did not merely respond to our arguments that introduced an entire new theory. [00:31:15] Speaker 00: Is it your view that you can't respond by introducing a new theory? [00:31:19] Speaker 04: Yes. [00:31:20] Speaker 04: And do you need us to say that what was [00:31:23] Speaker 04: stated in the reply is new because you concede what was stated in the reply is responsive. [00:31:31] Speaker 02: I don't know that I can see this responsive to the original argument that the petitioner made and that we were responding to just introducing a new argument because the did you concede that their reply theory whether it's a clarification or it's new [00:31:46] Speaker 04: it was responsive to the argument you were making in your patent order response. [00:31:50] Speaker 04: Isn't that clear? [00:31:52] Speaker 02: I mean, I think what they did is they saw that the original combination was so clearly inoperable, they had no way to defend it, and so they pivoted to an entirely new argument. [00:32:01] Speaker 02: If you want to call that responsive, I don't know that I would agree that that's responsive. [00:32:05] Speaker 02: I think that's shifting gears completely. [00:32:07] Speaker 04: Even if it is responsive, if we were to say de novo, it's new because it wasn't in the petition, [00:32:14] Speaker 04: Would that lead us, in your view, to affirm? [00:32:17] Speaker 02: If you were to say it was new, then I think yes, you'd affirm. [00:32:22] Speaker 02: And so ultimately, that's what we want. [00:32:24] Speaker 02: We want the board to be affirmed here. [00:32:26] Speaker 01: There's nothing in the petition where they say they're relying on the digitizer and magnetic coil of keeling, right? [00:32:35] Speaker 02: Well, they say they're relying on Keely's sensors. [00:32:37] Speaker 02: And Keely's sensors is the electromagnetic digitizer. [00:32:41] Speaker 02: I quoted that earlier. [00:32:42] Speaker 01: I think it was at page 280, where they talk about the- Well, I guess it depends what you mean by sensors as to whether that [00:32:50] Speaker 01: is the hardware or the software? [00:32:52] Speaker 02: Well, they are reciting the components of the notepad computer at 279-280. [00:32:59] Speaker 02: And they say these are all hardware components, the display, the processors, the memory, the sensors. [00:33:04] Speaker 02: The only sensors that are in Keely are described in Keely-2 is the electromagnetic digitizer. [00:33:10] Speaker 00: Can I ask you, I mean, like the page you cited us to on page A-280, when it says it would have been obvious to OPCIDA to include the sensor arrays [00:33:20] Speaker 00: approximate to the display screen of Healy. [00:33:25] Speaker 00: They're talking about the sensor arrays of Jiva, right? [00:33:27] Speaker 02: Where are you looking at? [00:33:29] Speaker 00: At the bottom paragraph, first sentence under the figure, at page A to 80. [00:33:36] Speaker 00: I don't know how it could be Jiva's sensor arrays, because they're referenced above, in the sentence immediately above, the figure. [00:33:47] Speaker 02: But immediately above that is where I was referring to them relying on Keeley sensors. [00:33:51] Speaker 02: And if you look at this. [00:33:52] Speaker 00: No, they're saying GIVA provides light sensor arrays. [00:33:55] Speaker 02: Yes. [00:33:56] Speaker 02: We're all on the same page. [00:33:57] Speaker 02: If you look specifically at the paragraph that you're talking about, they say the sensor arrays in GIVA are configured to detect at least a portion of the beam of electromagnetic radiation incident on the display. [00:34:07] Speaker 02: So if they were relying on GIVA sensors and GIVA's planar element, they would have said there that GIVA sensors are configured to detect [00:34:15] Speaker 02: radiation incident on the planar element. [00:34:17] Speaker 00: I'm with you. [00:34:18] Speaker 00: I just got lost when you were saying, it sounded like you were saying they were using Keeley sensors, but they're using Jeeva sensors. [00:34:24] Speaker 00: But the issue is whether they included the planar element, which is required for operability. [00:34:30] Speaker 02: Ultimately, whether or not the original combination was inoperable or whether it was different from the reply combination is whether or not it includes the planar element. [00:34:39] Speaker 02: But our position is that in the original combination, they did not include the planar element. [00:34:44] Speaker 02: They were including Keeley's digitizer and DIVA sensors, but the DIVA sensors wouldn't detect anything. [00:34:51] Speaker 02: If light shines on the display, the whole way the function of the planar element is that it redirects the light to these sensors on the side. [00:35:01] Speaker 02: The Keeley's display doesn't do that. [00:35:03] Speaker 02: It would just shine right on it, and there'd be nothing detected by DIVA sensors. [00:35:07] Speaker 02: And so it would just be inoperable, and that's why they abandoned that combination. [00:35:12] Speaker 04: Samsung points out you had the opportunity to depose their witness. [00:35:16] Speaker 04: I think it's Dr. Peterson, and you chose not to. [00:35:19] Speaker 04: Shouldn't we be concerned about what kind of incentives we're creating? [00:35:23] Speaker 04: If you're genuinely confused by why they're seeming to be pushing an inoperable embodiment, [00:35:32] Speaker 04: but there's some lack of clarity about what they mean, that they could clear up if you just ask them. [00:35:38] Speaker 04: Shouldn't we be concerned about creating an incentive not to pursue that avenue of clarification? [00:35:44] Speaker 02: I mean, ultimately, we didn't think there was any ambiguity. [00:35:46] Speaker 02: We thought they were crystal clear in what their combination was. [00:35:48] Speaker 02: We just thought they were wrong. [00:35:50] Speaker 02: And so we didn't need to depose their expert to try and have him change his theory. [00:35:55] Speaker 02: We knew exactly what his theory was. [00:35:57] Speaker 04: What about if we see the petition as ambiguous? [00:35:59] Speaker 04: Shouldn't we say, [00:36:01] Speaker 04: when you're faced with a petition that's ambiguous, you have an obligation to try to understand what it is rather than go through to the end of an IPR and then an appeal saying we don't really understand what they mean? [00:36:15] Speaker 02: I don't think we ever said we don't understand what they mean. [00:36:17] Speaker 02: I think we always were very confident in what they meant. [00:36:20] Speaker 02: It was just an inoperable combination. [00:36:22] Speaker 01: An inoperable combination which included Geva's stylist and a digitizer at the same time. [00:36:29] Speaker 01: That's the idea? [00:36:30] Speaker 02: Well, the reason it was inoperable in the original combination. [00:36:33] Speaker 01: So my question is, is that the reason it's inoperable? [00:36:36] Speaker 02: No. [00:36:36] Speaker 02: It was the fact that it didn't include the planar elements. [00:36:39] Speaker 02: So Giva stylus shining light onto the LCD display would not get any light to the sensors. [00:36:46] Speaker 01: Part of the question here is whether in the original combination they were including the digitizer and magnetic coils from Keely. [00:36:53] Speaker 01: And I'm just not understanding [00:36:56] Speaker 01: why it is that you would read what they were proposing is including those two things together with the stylus. [00:37:04] Speaker 01: That seems a very odd thing to be arguing. [00:37:08] Speaker 02: Well, if they didn't include the digitizer, then the LCD panel that they repeatedly say constitutes the touch sensitive display plane would not have been touch sensitive. [00:37:21] Speaker 02: And so that would have been an additional reason why it was inoperable. [00:37:25] Speaker 04: I asked you just one question about something that hasn't even come up, but this tracking movement limitation, which is just in, I think, the 369 patent. [00:37:36] Speaker 04: Can you just help me understand how could the board be correct when it says GIVA's indication of a position is not sufficient to satisfy that limitation of tracking movement? [00:37:48] Speaker 02: So GIVA gives two mutually exclusive embodiments. [00:37:51] Speaker 02: One, which does three-dimensional z-axis approximation. [00:37:55] Speaker 02: This is identifying a position. [00:37:57] Speaker 02: But even GIVA concedes that it's not particularly accurate. [00:38:00] Speaker 02: There's a second embodiment that it says it's more accurate, but only identifies when there's touch. [00:38:05] Speaker 02: The pen only emits light when it's touching the planar element. [00:38:09] Speaker 02: And so it has zero three-dimensional tracking ability. [00:38:12] Speaker 04: And so in that first embodiment, if it even just roughly approximates the location at multiple points over time, isn't that essentially tracking movement? [00:38:23] Speaker 02: But GIVA doesn't teach that. [00:38:24] Speaker 02: And there was expert testimony on both sides on this, which the board ultimately did not credit their expert, Peterson, and did credit our expert, Karens, who said that it is very resource intensive. [00:38:38] Speaker 02: It's not something that would have necessarily been done. [00:38:40] Speaker 02: There was no motivation in GIVA. [00:38:42] Speaker 02: talking about this. [00:38:43] Speaker 02: And so ultimately, that's an evidence wing where the board credited our expert, not their expert. [00:38:48] Speaker 02: And I think that's also viewed on the official discretion. [00:38:52] Speaker 01: So we have two separate issues here. [00:38:54] Speaker 01: One is the movement issue, which is only for the 369. [00:38:58] Speaker 01: And the other one is the touch sensitive, which is only the 070, right? [00:39:02] Speaker 02: Well, I think there's ultimately three different independent grounds on which you ought to affirm. [00:39:08] Speaker 02: One is the question of whether or not there was this new combination. [00:39:11] Speaker 01: No, no, wait. [00:39:11] Speaker 01: I'm trying to understand whether we have two separate issues for two separate patents or whether the... So the abuse of discretion question covers both patents? [00:39:20] Speaker 01: No, no, no, no. [00:39:24] Speaker 01: The touch-sensitive display issue concerns only the 070 patent, right? [00:39:29] Speaker 02: Yes, as far as element 1B. [00:39:30] Speaker 01: Right. [00:39:31] Speaker 01: And the movement issue only concerns the 369 patent, right? [00:39:35] Speaker 02: Yes. [00:39:36] Speaker 02: And the court only reaches out if it finds an abuse of discretion. [00:39:40] Speaker 02: And there's also an addition. [00:39:41] Speaker 02: We didn't talk about it, but there's the motivation to combine, which if the court were to uphold that on a substantial evidence basis, that would also be a basis for affirming. [00:39:49] Speaker 02: So for Samson to obtain reversal here, I mean, it essentially needs to win three or four different legs of this uphold battle, Your Honor. [00:39:57] Speaker 01: OK. [00:39:58] Speaker 01: All right. [00:39:58] Speaker 01: Thank you. [00:39:59] Speaker 01: Thank you. [00:40:02] Speaker 01: Mr. Habe, we have two minutes. [00:40:06] Speaker 03: I wanted to address just a couple points. [00:40:10] Speaker 03: Keely 2, the reference that they say that we incorporated into the original combination, is cited one time in the petition. [00:40:16] Speaker 03: It's cited on appendix page 282. [00:40:19] Speaker 03: And you'll note that it is cited for the basic proposition that an opal computer includes a memory and a display at [00:40:30] Speaker 03: The one time we cited Keely-2, we did not reference Keely-2's sensors. [00:40:34] Speaker 03: We did not try to incorporate them into the combination at all. [00:40:37] Speaker 03: And so it is not correct to say that we actually incorporated Keely-2 into the combination, other than to say that it was well known to use processors in memory. [00:40:48] Speaker 03: And the question of whether or not GIVA would be placed on top of an LCD panel is actually taught specifically by GIVA at Appendix 1356. [00:40:59] Speaker 03: What GIVA says is that it should be positioned on top of an LCD in order to protect the LCD electronics, protect the surface, [00:41:11] Speaker 03: and simulate the sense of pen and paper. [00:41:14] Speaker 03: So GIVA teaches that you should take the planar element and put it on top of an LCD. [00:41:19] Speaker 04: And where do you say that in the petition or call out 1356 from GIVA itself in your petition? [00:41:25] Speaker 03: So we call out 1356, which is exhibit 111, exhibit 1011 in the petition. [00:41:37] Speaker 03: You can see that. [00:41:42] Speaker 03: And where we define the combination, we need to... So when we talk about, at appendix 277, GIVA is an improved alternative to well-known digitizing technologies. [00:42:08] Speaker 03: That's the electromagnetic radiation. [00:42:10] Speaker 03: We cite to exhibit 1011 here, talk about the benefits. [00:42:14] Speaker 03: This is where we cite to the general background to teaching of GIVA. [00:42:19] Speaker 03: Now, I wanted to direct your honor's attention to one other thing. [00:42:22] Speaker 00: You're saying that column two, lines 19 through 21, that's exactly what you just talked about? [00:42:27] Speaker 00: Is that what you're saying? [00:42:29] Speaker 03: Let me just double check to make sure. [00:42:37] Speaker 03: Column 2, line 19 to 21, is talking about the disadvantages of an electromagnetic digitizer and using the improved alternative. [00:42:47] Speaker 03: And the way that this is all implemented is part of this discussion, this background discussion. [00:42:53] Speaker 03: I'm not sure that this particular passage is what I just cited to you, but that is the point that we were making in the petition. [00:43:01] Speaker 01: Which is sort of inconsistent with the notion that you are keeping the digitizer and the magnetic coil in combination. [00:43:08] Speaker 01: What's that? [00:43:09] Speaker 01: Which is sort of inconsistent with the idea that you're keeping the digitizer and magnetic coil in the combination. [00:43:15] Speaker 03: Exactly. [00:43:15] Speaker 03: And that's what this entire first section of GIVA is telling you. [00:43:19] Speaker 03: There are these known technologies, resistive, capacitive, electromagnetic, and you should replace it. [00:43:24] Speaker 03: Replace it with this improved alternative. [00:43:25] Speaker 04: Do you agree with Judge Dyke that you're being inconsistent? [00:43:28] Speaker 03: No. [00:43:29] Speaker 03: This statement in GIVA is inconsistent with what the board said. [00:43:33] Speaker 03: What the board said is that we were trying to bring in QLE 2. [00:43:36] Speaker 03: And that's just inconsistent with GIVA in the way that we applied it. [00:43:40] Speaker 03: And I did want to direct your attention to one bit of the patent in response to your question, Judge Stark. [00:43:49] Speaker 03: And that is Appendix 2. [00:43:54] Speaker 03: 115, column six, line 22. [00:43:59] Speaker 03: The patent describes how motion is being detected, and what it says is, repetitive calculation of the stylus position several times a second, as the stylus is moved, allows for a stylus trajectory to be recorded. [00:44:13] Speaker 03: And that is what GIVA is doing. [00:44:14] Speaker 03: GIVA is detecting position, it is simulating the sense of pen and paper, a user is writing and moving the stylus, and it's calculating position over and over again, [00:44:24] Speaker 03: And that is the motion that is being detected by Giva. [00:44:27] Speaker 03: And that is the functionality that is incorporated into Keeley. [00:44:30] Speaker 03: Because they're both intended to simulate the sense of pen and paper. [00:44:34] Speaker 03: And Giva is just an alternative way to do it. [00:44:37] Speaker 03: And that's what we said. [00:44:38] Speaker 03: Take out the electromagnetic digitizer, what Giva tells you to do, and put in the light-based digitizer. [00:44:45] Speaker 03: And to the extent that there was any sort of ambiguity there, the reply made it very, very clear what we were trying to do. [00:44:54] Speaker 03: The expert didn't think he was being ambiguous, but to the extent there was ambiguity, he clarified it in reply and that the board did not meaningfully consider it. [00:45:04] Speaker 01: Okay. [00:45:05] Speaker 01: Thank you. [00:45:06] Speaker 01: Thank both counsels. [00:45:06] Speaker 01: The case is submitted.