[00:00:00] Speaker 03:
24-2048, A-plus communications versus same-tone electronics.

[00:00:07] Speaker 03:
Okay, Mr. Lambrianikos.

[00:00:09] Speaker 03:
Good afternoon, Your Honors.

[00:00:11] Speaker 03:
May it please the Court.

[00:00:13] Speaker 03:
The Board violated G-plus's procedural rights when it found that the 130 patent was anticipated by quark based on an argument that was raised at the first time at the oral hearing.

[00:00:26] Speaker 03:
G-plus argued below that elements 1C and 1D were not disclosed in the Allegiance.

[00:00:32] Speaker 02:
Let me ask you.

[00:00:34] Speaker 02:
There's two arguments on the field.

[00:00:36] Speaker 02:
One, the due process contention, and then basically I'll call it substantial evidence contention.

[00:00:42] Speaker 02:
Leaving aside for the moment the due process argument, assume that wasn't in the case.

[00:00:47] Speaker 02:
Does the case on the evidence before the board simply come down to the question of whether Figure 40-40 – Figure 40-4 in QAP represents a comb structure, or is it comb structure?

[00:01:02] Speaker 02:
That's the whole case.

[00:01:03] Speaker 02:
Is it not leaving aside the due process issue?

[00:01:07] Speaker 03:
Well, it is a crucial part of the case, except for the following issues.

[00:01:12] Speaker 03:
Number one, the board didn't resolve

[00:01:14] Speaker 03:
the effect of the cone structure and whether or not that rebutted anticipation.

[00:01:20] Speaker 03:
And secondly, very importantly, for the

[00:01:26] Speaker 03:
the substantial evidence issue, the record is incomplete on whether or not there is a comb structure, because the new argument which was raised at the hearing is one which affects whether there can be anticipation with respect to other elements as well.

[00:01:40] Speaker 03:
I'm confused.

[00:01:41] Speaker 03:
Was there not testimony about whether Figure 44 shows a comb structure?

[00:01:46] Speaker 03:
There was testimony, yes, in both directions on that.

[00:01:50] Speaker 03:
Yes.

[00:01:51] Speaker 03:
But there was – but the issue with the new argument, Your Honors, is when Samsung comes to the hearing and says, may, means that a feature connoted by the word may is optional.

[00:02:02] Speaker 03:
What Samsung did is it undermined the remainder of its anticipation arguments.

[00:02:07] Speaker 03:
Because as we pointed out in our opening brief, Figure 1 – excuse me, Element 1A, for example, is relied on by Samsung as being presented by

[00:02:17] Speaker 03:
supported by evidence which the specification says may be present.

[00:02:21] Speaker 00:
But I mean, I think I understand your argument, but candidly speaking only for myself, I'm not buying it.

[00:02:27] Speaker 00:
I mean, the substantial evidence argument that you have to use may both the same way, nothing in our cases supports there.

[00:02:36] Speaker 00:
And we have plenty of cases.

[00:02:37] Speaker 00:
I don't know the names off my top of my head.

[00:02:40] Speaker 00:
But yeah, may can

[00:02:42] Speaker 00:
establish an anticipation if it may do it at some point.

[00:02:47] Speaker 00:
And you're trying to use May in another context as being inconsistent with that.

[00:02:53] Speaker 00:
It just doesn't make any sense.

[00:02:56] Speaker 03:
Well, I believe that the issue of May

[00:02:59] Speaker 03:
was litigated inconsistently by Samsung.

[00:03:02] Speaker 03:
Samsung indicated that features disclosed with may are optional when it comes to a cone structure which would negate their anticipation argument.

[00:03:11] Speaker 03:
They say, well, it's may.

[00:03:12] Speaker 03:
That means it's optional.

[00:03:14] Speaker 00:
And then they say, well, OK, but is there something wrong with that?

[00:03:18] Speaker 00:
May means that may not.

[00:03:22] Speaker 00:
and therefore you're not defeated by 44, even if it may use cone structure.

[00:03:26] Speaker 00:
In some regards, it doesn't need to.

[00:03:28] Speaker 00:
Is that analysis not solid?

[00:03:32] Speaker 03:
Well, just may in its use in that one period could be read either way.

[00:03:38] Speaker 03:
It could be read that there's an optional feature and it's either present or it's not present.

[00:03:43] Speaker 03:
But remember, the specification says that Figure 34 may include the structure of Figure 33.

[00:03:50] Speaker 03:
Figure 33 has a comb structure in it, and it has 12 sub-carriers in it as well.

[00:03:55] Speaker 00:
But it may not.

[00:03:57] Speaker 00:
May means may does not have to.

[00:03:59] Speaker 00:
You've got a double may here.

[00:04:01] Speaker 03:
The specification uses the word may twice, both with respect to Figure 43 and with respect to Figure 44.

[00:04:10] Speaker 03:
And with respect to 43, it says it may include the comb structure of Figure 38.

[00:04:16] Speaker 03:
when it gets to 44, it says you may use the structure 43.

[00:04:20] Speaker 03:
Right?

[00:04:22] Speaker 03:
It does say may.

[00:04:23] Speaker 03:
There is, as counsel said at the hearing, a daisy-chaining of mays, which he said for the first time, you know, at the hearing.

[00:04:29] Speaker 03:
That was never presented before, and that's where our due process argument comes into play.

[00:04:34] Speaker 03:
If this was an argument of Samsung's, it should have been in the papers.

[00:04:38] Speaker 03:
In the papers, they said there's no comb structure in Figure 44.

[00:04:41] Speaker 03:
They said there's no comb structure in Figure 43.

[00:04:45] Speaker 03:
They said their experts said because there's no cone structure shown in the figure, that means it's not there.

[00:04:51] Speaker 03:
They came to the hearing and said it may be there.

[00:04:54] Speaker 03:
They said that figure 43.

[00:04:57] Speaker 03:
No, no, no, that's not I think what they said.

[00:04:59] Speaker 03:
It's not that maybe in figure 44, it may be that even though figure 44 doesn't show a cone structure, there may be, you may use a cone structure of 43.

[00:05:11] Speaker 03:
No, Your Honor, that's not correct.

[00:05:13] Speaker 03:
They said that Figure 34 may include the structure of Figure 43.

[00:05:19] Speaker 03:
And that is straight out of the specification.

[00:05:21] Speaker 03:
They said Figure 33 may use the comb structure of Figure 38.

[00:05:26] Speaker 03:
Now, Figure 33 shows a comb structure.

[00:05:28] Speaker 03:
So Figure 33 uses a comb structure.

[00:05:32] Speaker 03:
And then they relied on Figure 43 in discussing the features of Figure 44 throughout their petition.

[00:05:40] Speaker 03:
They said that Figure 34 has 12 subcarriers.

[00:05:43] Speaker 03:
They found those subcarriers in the structure of Figure 33.

[00:05:46] Speaker 03:
So Samsung agreed that Figure 34 includes some structure from Figure 33, but they say, well, only the structure that helps us.

[00:05:56] Speaker 03:
So we'll take the 12 subcarriers, but we'll review the cone structure.

[00:06:00] Speaker 03:
So Samsung, at the hearing,

[00:06:03] Speaker 03:
Introduce this.

[00:06:04] Speaker 03:
Did your witness say that the depiction of figure 44 showed a column structure?

[00:06:09] Speaker 03:
No.

[00:06:10] Speaker 03:
I didn't think so.

[00:06:12] Speaker 03:
It doesn't.

[00:06:14] Speaker 03:
No, it doesn't.

[00:06:15] Speaker 03:
It also doesn't show 12 soap carriers, which Samsung says are present.

[00:06:19] Speaker 03:
So you don't read the figure.

[00:06:20] Speaker 03:
The figure itself is probably just disclosing

[00:06:23] Speaker 03:
The new elements that Figure 44 is depicting – the CS indexes, for example, are additional structure that Figure 44 has been in.

[00:06:33] Speaker 03:
It may not show everything that's in all of the prior structures which are incorporated therein.

[00:06:40] Speaker 03:
And so the fact that it's not disclosed or shown there doesn't mean it's not part of the embodiment.

[00:06:46] Speaker 00:
Well, back to the APA allegations you're making.

[00:06:49] Speaker 00:
At Red Bottom of 32, they cite to the trial, what's it called, the guidance, the PTED has validated trial practice guidance.

[00:07:01] Speaker 00:
And it says, the quote is, a party may request authorization for further merits reasons, such as a surrey by, to address the merits of any newly raised arguments or evidence.

[00:07:14] Speaker 00:
Doesn't that note that the expectation is, if it's just a new argument, you have the opportunity to ask for a certify?

[00:07:24] Speaker 00:
I think in the exchange and the record that we have, your counsel did jump up and say, hey, this is a new argument.

[00:07:32] Speaker 00:
But then one, he responded to it.

[00:07:34] Speaker 00:
And two, if you had more to say on it, why wouldn't the normal course be that you'd ask

[00:07:42] Speaker 00:
to submit you evidence, to file a surrey fly.

[00:07:46] Speaker 00:
That's the way this stuff is supposed to work.

[00:07:48] Speaker 00:
This quote from the guidance suggests that there's nothing wrong with a new argument, but you have the chance to ask for a surrey fly.

[00:07:56] Speaker 00:
So why is that not what happened?

[00:07:58] Speaker 00:
You could have relied on a lot of briefing for the appellate court if you had done that right.

[00:08:03] Speaker 03:
Well, Your Honor, this section here refers to a situation before so replies were the norm.

[00:08:10] Speaker 03:
And it refers to a situation where there's a new argument raised on the apply, and then you could ask for a so reply at that time before the hearing.

[00:08:18] Speaker 03:
This is a situation where the argument came up at the hearing, and under the Dell case, this court said that it is not necessary to request another paper when there's been a new argument raised at the hearing.

[00:08:30] Speaker 03:
As well, in the Dell versus Acceleron case,

[00:08:34] Speaker 03:
Precisely this situation took place.

[00:08:36] Speaker 03:
This very thing happened.

[00:08:38] Speaker 03:
Dell showed up and said, I've got an anticipation argument based on a portion of the prior art which had not been cited before for that purpose.

[00:08:47] Speaker 03:
Dell had cited to other portions of it.

[00:08:50] Speaker 03:
There was an objection on the record during the hearing, just as it was here, that this is a new argument.

[00:08:55] Speaker 03:
And this court, Judge Carranza's opinion said that it is not necessary to seek another paper in order to be able to appeal this issue.

[00:09:04] Speaker 03:
And so what we've done is followed the same process, which was considered appropriate in the Dell case.

[00:09:14] Speaker 03:
Now, there can't be any doubt here that what happened wasn't the submission of cumulative evidence or the clarification of an argument.

[00:09:25] Speaker 03:
There's no question here that... You doubt about that?

[00:09:28] Speaker 01:
Sorry?

[00:09:29] Speaker 03:
Why isn't there some doubt about that?

[00:09:31] Speaker 03:
There shouldn't be any doubt about that, except there have been issues raised in the opposition brief.

[00:09:40] Speaker 03:
I mean, it all seems closely related, right?

[00:09:43] Speaker 03:
And what was being argued?

[00:09:45] Speaker 03:
It wasn't as though this was some new figure that was being brought up.

[00:09:48] Speaker 03:
It was – the focus was on figures 43 and 44 and how to interpret them, right?

[00:09:54] Speaker 03:
That's right.

[00:09:55] Speaker 03:
And in the Dell case, it was all the same figure as well, and it was just different numbered features

[00:10:00] Speaker 03:
in the same figure.

[00:10:02] Speaker 00:
And here, there's discussions that something new was brought up.

[00:10:06] Speaker 00:
It was

[00:10:07] Speaker 00:
a new issue based on something that had not been focused on before.

[00:10:12] Speaker 00:
Whereas the figures 43 and 44 were the focus of everything going on here.

[00:10:16] Speaker 00:
And the spec language was presumably in front of everybody there to read, which includes the May language.

[00:10:22] Speaker 03:
That's right.

[00:10:22] Speaker 03:
And it was in front of Samsung when it filed its reply.

[00:10:26] Speaker 03:
And in its reply, it didn't focus on this daisy chain of Mays or possibilities.

[00:10:32] Speaker 03:
It took the position

[00:10:33] Speaker 03:
that these features were not in the figures.

[00:10:37] Speaker 03:
What did their – you say your witness didn't testify that Figure 44 was a cub structure.

[00:10:43] Speaker 03:
What did their witness say about Figure 44?

[00:10:47] Speaker 03:
Their witness said that there is no shading in the figure as shown in other figures which have comb structures and not a comb structure.

[00:10:58] Speaker 03:
And therefore, a person of ordinary skill in the artwork would understand that the embodiment doesn't have a comb structure.

[00:11:03] Speaker 03:
So that testimony's not rebutted?

[00:11:06] Speaker 03:
Oh, it's rebutted.

[00:11:06] Speaker 03:
Our witness said that in order for the embodiment of figure four to four to function properly, it must use a comb structure.

[00:11:18] Speaker 03:
And who else would a witness say that?

[00:11:20] Speaker 03:
I'm sorry?

[00:11:20] Speaker 03:
Leah.

[00:11:53] Speaker 03:
At appendix 2203, paragraph 102, the DMRS is 102.

[00:12:19] Speaker 03:
The DMRS, which are the sub-carriers that carry the information that makes the symbol a comb structure, he writes, the DMRS is required in QUOC.

[00:12:32] Speaker 03:
As I explained above, the DMRS helps to enhance signal quality by providing a known reference signal to assist the receiver in distinguishing the desired signal from noise and interference.

[00:12:42] Speaker 03:
There's not any dispute in the record that our – our witness – You're saying the DMRS is a reference to the comb structure?

[00:12:50] Speaker 03:
Yes.

[00:12:51] Speaker 03:
The DMRS is – if you looked on the prior page in the appendix, which is 2189, you see that figure 38 of clock has DMRS and data.

[00:13:05] Speaker 03:
And, therefore, this is a comb structure.

[00:13:07] Speaker 03:
It kind of looks like a comb, I assume.

[00:13:10] Speaker 03:
But he doesn't focus on Figure 44 in particular, right?

[00:13:16] Speaker 03:
Well, he says it's required in clock, which is the invention.

[00:13:19] Speaker 01:
But he does not.

[00:13:21] Speaker 03:
No, I'm correct.

[00:13:21] Speaker 03:
He doesn't focus on Figure 44.

[00:13:24] Speaker 03:
He doesn't specifically say that Figure 44 doesn't come.

[00:13:29] Speaker 03:
Well, he's discussing a limitation of the claim that they're supporting the figure 44.

[00:13:36] Speaker 03:
He doesn't say specifically the figure 44 in terms of cum structure, right?

[00:13:42] Speaker 03:
He doesn't.

[00:13:42] Speaker 03:
Not in that paragraph, he doesn't.

[00:13:44] Speaker 03:
Or in the other paragraph.

[00:13:46] Speaker 03:
Well, I don't.

[00:13:47] Speaker 03:
I could take a look and see.

[00:13:48] Speaker 03:
Mr. Murdock, there's something he has to say.

[00:13:51] Speaker 03:
Just hold on one second.

[00:13:53] Speaker 03:
Right?

[00:13:53] Speaker 03:
There's no other paragraph where he says that.

[00:13:57] Speaker 03:
He doesn't mention figure 44, but when he says it's required in clock, clock is the reference.

[00:14:04] Speaker 03:
Therefore, it is required in the reference in order for the reference to function.

[00:14:09] Speaker 02:
You've directed our attention to, I guess, Dr. Ackles' testimony.

[00:14:13] Speaker 02:
But then when you look at the testimony of Dr. Dean, I guess it's appendix 203 to 204 and paragraph 16 and 17,

[00:14:26] Speaker 02:
planning what you say about the testimony you just directed it to, and then looking at Dr. Ding's testimony, the board was certainly free, was it not, to credit and favor the testimony of Dr. Ding.

[00:14:41] Speaker 02:
And that's just, I'm not going to call it credibility.

[00:14:44] Speaker 02:
Well, there's a credibility determination, in a sense.

[00:14:47] Speaker 03:
The report was free to make a finding on whether or not a comb structure is present, but it didn't get there.

[00:14:53] Speaker 03:
And rather than take on the thorny issue and deal with the evidence on both sides of that issue, it just decided, well, there's no comb structure here based on this new argument.

[00:15:04] Speaker 03:
I need not reach the technical aspects of what's required in a comb structure.

[00:15:08] Speaker 03:
What we had before, Dr. Dean's statements,

[00:15:12] Speaker 03:
It certainly had the whole record before it, Your Honor, but it didn't address it.

[00:15:16] Speaker 03:
It cut off that issue and instead decided that there's no code structure present based on the new argument raised for the first time at the hearing.

[00:15:24] Speaker 03:
That's the issue here.

[00:15:25] Speaker 00:
Can I follow up on that?

[00:15:26] Speaker 00:
Because in Gray, the first page of Gray, you twice say that this oral argument argument was the sole basis for the disposition.

[00:15:38] Speaker 00:
You say it twice.

[00:15:39] Speaker 00:
I mean, I've read these pages several times.

[00:15:42] Speaker 00:
The operative discussion is at 32 and 33.

[00:15:45] Speaker 00:
And the only thing that comes up that could be relevant to what you're saying is the very last kind of last paragraph on 33 of this discussion.

[00:15:56] Speaker 00:
It's we also find

[00:15:59] Speaker 00:
and it doesn't cite to the or I don't think it cites to the testimony, it cites to the spec.

[00:16:04] Speaker 00:
Correct.

[00:16:05] Speaker 00:
So I'm not seeing how you can fairly read these two pages in the analysis preceding by paragraphs that say patent petitioner correctly does this and.

[00:16:17] Speaker 03:
Yeah, but only it's recognizing

[00:16:19] Speaker 03:
32 petitioner correctly notes that nothing in this description establishes figure 34 as a comm structure.

[00:16:27] Speaker 00:
And he cites this stuff in the record, so I'm not clear how you can derive from this analysis that the sole basis, you say it twice, relies solely

[00:16:36] Speaker 00:
the sole basis.

[00:16:38] Speaker 00:
Yes, Your Honor.

[00:16:39] Speaker 03:
I believe that's correct, and let me explain why.

[00:16:41] Speaker 03:
The board made two findings with respect to limitations on C. The first finding began at the bottom of page 32.

[00:16:49] Speaker 03:
It says, applying the end transmission term construction from section 3B1 above.

[00:16:54] Speaker 03:
We found that that exposes the end transmission term.

[00:16:58] Speaker 03:
That's finding one that's not relevant.

[00:17:00] Speaker 00:
Well, what about the paragraph before that?

[00:17:03] Speaker 03:
Well, if I could just get, I would promise I would deal with that.

[00:17:06] Speaker 03:
The next paragraph says, we also find, which is the second finding of, on 1C, that Figure 34 may be a cone structure, but is not necessarily one.

[00:17:17] Speaker 03:
Now, you noted, Your Honor, correctly, the only thing cited here is the specification.

[00:17:22] Speaker 03:
But of course the board didn't cite the argument.

[00:17:24] Speaker 03:
The argument was improper.

[00:17:26] Speaker 03:
It was late.

[00:17:28] Speaker 03:
So no, that's not cited, and the board doesn't cite any of the papers either.

[00:17:32] Speaker 03:
The board doesn't say, well, we like Samson's argument in his papers, and cite that those arguments support this finding.

[00:17:39] Speaker 03:
And the reason is they don't.

[00:17:41] Speaker 03:
Nothing in Samson's papers supported this finding.

[00:17:45] Speaker 03:
Now, you have to – These things are – these findings by the board are perfectly consistent.

[00:17:50] Speaker 03:
They say – Petitioner correctly notes that nothing in description of clock establishes Figure 44 as a comb structure.

[00:17:58] Speaker 03:
And you have to accept that, that they made a finding that figure 44 is not as far as a comb structure.

[00:18:05] Speaker 03:
It's the main language in the specification that suggests that 44 could be used together with a comb structure.

[00:18:12] Speaker 03:
And that's the burden of what they found in appendix 33.

[00:18:15] Speaker 03:
So I don't see those as being inconsistent.

[00:18:20] Speaker 03:
I think they're saying 33 is not a comb structure, but the language and the spec says it could be.

[00:18:26] Speaker 03:
That's right.

[00:18:27] Speaker 03:
So it's not correct.

[00:18:28] Speaker 03:
If you changed it, you could make it into a cone structure.

[00:18:38] Speaker 03:
Your Honours, this language regarding

[00:18:42] Speaker 03:
the finding here is repeating the language that Samsung had in its papers.

[00:18:47] Speaker 03:
When it took the position that Figure 44 is never a comb structure, when it took the position that nothing describes Figure 43 as a comb structure, they are citing and

[00:19:01] Speaker 03:
They are summarizing the factual arguments that were made, and they do say that it is correct that nothing discloses that Figure 34 is a comb structure.

[00:19:11] Speaker 03:
The finding that Figure 34, on the next page, may be a comb structure, contradicts that finding.

[00:19:18] Speaker 03:
Figure – I'll wait for Tuesday.

[00:19:19] Speaker 03:
I'm not sure that's true, because it can be reconciled the way I articulated it a moment ago.

[00:19:25] Speaker 03:
I don't believe that that's a reconciliation, Your Honor.

[00:19:29] Speaker 03:
The board used the figure and the embodiment interchangeably.

[00:19:35] Speaker 03:
It didn't distinguish whether there's an embodiment of figure 34 and there's a figure that describes it.

[00:19:40] Speaker 03:
It used them as if the figure and the description are wrong.

[00:19:44] Speaker 03:
And the language in Samsung's argument that

[00:19:51] Speaker 03:
that is summarized here excluded the language that they admitted at the hearing, which is that Figure 43 may include the cone structure of Figure 38.

[00:20:02] Speaker 03:
They argued in their papers that nothing establishes that Figure 43 is a cone structure and that the patent owner merely presumed it.

[00:20:11] Speaker 03:
This was their position.

[00:20:12] Speaker 03:
They actually ignore the sentence in the specification that showed that Figure 43 uses a comb structure of Figure 38.

[00:20:21] Speaker 03:
So that was what was being quoted here.

[00:20:24] Speaker 03:
They showed up to the argument, and not only did they no longer say that Figure 43 couldn't be a comb structure, he admitted in the argument that he's not disputing that anymore.

[00:20:36] Speaker 03:
He said in the argument,

[00:20:41] Speaker 03:
So, Your Honor, he says on Appendix 564, Line 8.

[00:20:43] Speaker 03:
So, Your Honor, Figure 33, as it's shown, does show a comb structure.

[00:20:49] Speaker 03:
I'm not disputing that.

[00:20:51] Speaker 03:
Okay.

[00:20:52] Speaker 03:
We'll give you two minutes for a bottle.

[00:20:55] Speaker 03:
Thank you, Your Honor.

[00:21:03] Speaker 03:
Mr. Boncell?

[00:21:09] Speaker 03:
Good afternoon, Your Honours, may peace the court.

[00:21:12] Speaker 03:
G plus offered a single argument below that there is no anticipation because quarks figure 44 must be a comb structure.

[00:21:20] Speaker 03:
The board rejected that argument, making factual findings grounded in the evidence presented to it.

[00:21:27] Speaker 00:
Substantial evidence supports those findings.

[00:21:29] Speaker 00:
Let me explain.

[00:21:30] Speaker 00:
It's essentially what we're talking about here, this whole debate about the May language.

[00:21:35] Speaker 00:
That's right in the specification that's talking about figure 44 and figure 43, right?

[00:21:40] Speaker 00:
Absolutely, Your Honor.

[00:21:42] Speaker 03:
And the passages that we're talking about here, QAC 74, 9 through 12, QAC column 73, those are passages that were cited by G plus in its patent owner's response,

[00:21:57] Speaker 03:
in its reply to the board.

[00:21:59] Speaker 03:
The board simply looked at those passages and said, G+, we do not agree that figure 44 must be a con structure.

[00:22:07] Speaker 03:
So yes, this is simply an issue of substantial evidence, Your Honor.

[00:22:10] Speaker 03:
There is no APA violation here.

[00:22:13] Speaker 00:
What about the Dell case?

[00:22:14] Speaker 00:
Because your friend cites that repeatedly.

[00:22:16] Speaker 03:
So Your Honor, Dell presents a very, very different factual scenario.

[00:22:20] Speaker 03:
That's a brand new mapping that was at issue in Dell.

[00:22:24] Speaker 03:
Here the mapping has not changed.

[00:22:26] Speaker 03:
Samson still is relying on figure 34, which is precise for anticipation, which is what Samson relied upon in his petition.

[00:22:32] Speaker 03:
So Dell is not applicable.

[00:22:34] Speaker 03:
And then, Your Honor, I do want to address some of the testimonies that were cited by the Board.

[00:22:40] Speaker 03:
So if we can look at Appendix Page 32 of the final decision, which is something the panel brought up.

[00:22:49] Speaker 03:
The board, Your Honor, let me know when you're there, Appendix Page 32.

[00:22:53] Speaker 03:
The board looked at the testimony of Senator and State Chair, Dr. Ding, and citing that testimony, the board said, petitioner correctly notes that nothing in this description or in quote establishes Figure 44 as a cone structure.

[00:23:09] Speaker 03:
That is a factual finding that's supported by substantial evidence, and that is the end of this case, Your Honor.

[00:23:15] Speaker 03:
I do want to quickly just make one more note.

[00:23:18] Speaker 03:
Actually, two more things.

[00:23:21] Speaker 03:
Judge, first... Your opposing counsel refers to 33 and says that contradicts that.

[00:23:27] Speaker 03:
No, Your Honor.

[00:23:28] Speaker 03:
It certainly does not contradict.

[00:23:31] Speaker 03:
So on 32, the board is saying nothing in CLOP establishes figure 44 as a comb structure.

[00:23:41] Speaker 03:
And then simply on 33 the board is saying yes, and you know, we're going to look at what quark actually says that quark uses name and that implies that again nothing in quark establishes 44 as a home structure.

[00:23:56] Speaker 03:
Those two findings are entirely consistent with each other because at bottom they are rejecting the argument that g plus made below.

[00:24:06] Speaker 03:
G Plus said 34 must be a claim structure.

[00:24:10] Speaker 03:
The board is saying no.

[00:24:12] Speaker 03:
And, Your Honor, if there was this big issue about Samsung saying something, you know, at the oral hearing that created this massive issue, it was incumbent upon G Plus to seek further authorization.

[00:24:27] Speaker 03:
The board, in fact, here, soon responded after oral hearing, ordered supplemental briefing on claim construction.

[00:24:34] Speaker 03:
if they thought this issue was truly sort of novel, truly that, you know, it was a game changer, it was incumbent upon them to request something in the briefing.

[00:24:42] Speaker 03:
They cannot now... What was the supplemental briefing at that board order?

[00:24:45] Speaker 03:
You know, that was on a claim construction term.

[00:24:48] Speaker 03:
A different issue.

[00:24:49] Speaker 03:
A different issue.

[00:24:50] Speaker 03:
But it shows that this panel and that the Board of Judes allow for parties to resolve any issues such as the one that they're complaining about here.

[00:25:01] Speaker 03:
Unless Your Honors have any other questions for me or would like me to address any issues, I am happy to seek my time back to this Court.

[00:25:11] Speaker 03:
Okay, thank you.

[00:25:22] Speaker 03:
You have two minutes.

[00:25:24] Speaker 03:
Thank you, Your Honor.

[00:25:27] Speaker 03:
The first point I'd like to make, I think, is reiterating the point that the fact that we are discussing the text of the specification does not mean that if there was a new argument raised at a hearing that involves a specification, that we should have known about it or that it otherwise is not new.

[00:25:46] Speaker 03:
There was never an argument regarding the May language until it took place at the hearing.

[00:25:50] Speaker 03:
Now, attempting to reconcile the arguments that were made below, which were allegedly approved by the board, and the board's decision is not possible.

[00:26:02] Speaker 03:
If we look at appendix 415,

[00:26:06] Speaker 03:
we see where Samsung made the argument that figure 43 does not include a cone structure.

[00:26:12] Speaker 03:
And as you recall at the hearing, Samsung agreed that it does show a cone structure.

[00:26:17] Speaker 03:
At appendix 415, the bottom of the last paragraph, it says, Quark never states that the structure of figure 43 is a cone structure.

[00:26:26] Speaker 03:
So what's the point?

[00:26:27] Speaker 03:
I don't understand the point.

[00:26:28] Speaker 03:
We're talking about figure 44 and what it shows.

[00:26:31] Speaker 03:
What's the point about figure 43?

[00:26:33] Speaker 03:
Because figure 44

[00:26:35] Speaker 03:
may include the structure of Figure 33.

[00:26:38] Speaker 03:
And the point that we accept that Figure 33 shows a cone structure, we still have the same argument.

[00:26:48] Speaker 03:
The argument is simply that Samsung changed its argument at the hearing without notice and without an opportunity for us to respond meaningfully.

[00:26:58] Speaker 03:
That is a due process APA violation.

[00:27:01] Speaker 03:
And we should be entitled to revisit

[00:27:05] Speaker 03:
Whether there is even a single anticipating embodiment in Samsung's petition, given that Samsung has relied on similar May language all across different limitations, they have to show that there is a single embodiment in the specification arranged as the claims in order to have anticipation.

[00:27:27] Speaker 03:
They always took the position in their petition that May means that the limitation is present.

[00:27:34] Speaker 03:
Only at the hearing did they raise a question about whether a limitation is present if it's introduced by the May language.