[00:00:00] Speaker 00:
Our next case for argument is 24-2119, Google v. Sonos. Mr. Tucker, please proceed.

[00:00:16] Speaker 02:
It's good to be back, Your Honor. Thank you. And may it please the Court, Dan Tucker on behalf of Google.

[00:00:23] Speaker 02:
No evidence supports the board's finding that Rosenberger discloses exchanging its weighted signals in the low-power listening mode. Not Rosenberger and not Dr. Johnson's testimony. Appendix 40 shows the clearest example of where the board got its anticipation analysis wrong.

[00:00:43] Speaker 03:
The board relied on column 8, isn't that right?

[00:00:47] Speaker 02:
Correct, Your Honor. The board relied on column 8 of Rosenberger.

[00:00:52] Speaker 03:
Why was it wrong?

[00:00:54] Speaker 02:
Because column 8 never discloses exchanging weighted signals at all, let alone doing it in low power mode. Instead, column 8 expressly points to other parts of Rosenberger. It says, see device coordination discussion below. But in those device coordination methods, which are shown in connection with figures four through six of Rosenberger, Rosenberger's device always exits its low-power mode before exchanging the weighted signals.

[00:01:28] Speaker 00:
I think, did the board, is it fair to say the board understood when Columate was talking about how there's a change in the status light, that maybe that was an indication of it being triggered?

[00:01:43] Speaker 02:
I don't think the board was entirely clear on that point. I do think it interpreted the phrase wake up to indicate exiting a low power mode in Rosenberger. And there are numerous problems with that analysis. The first is that this wake up phrase is does not relate to the device coordination at all. In column 8 of Rosenberger, there are three different alternatives for getting the device to interact with the user.

[00:02:20] Speaker 02:
The first is you receive a trigger phrase and you do device coordination.

[00:02:26] Speaker 00:
Well, I think what you just said is there's three different ways we could interpret what is being meant by wake up in column 8. But the board interpreted it as...

[00:02:37] Speaker 00:
Exiting low power mode and becoming active and engaged, how is that not supported by substantial evidence? Why can't I look at this expression and say, okay, that's a fair reading by the board. Yes, it could have meant other things, but their conclusion that in this instance it meant exiting low power mode, waking up, doesn't seem clearly erroneous to me. I realize substantial evidence is the standard, but I'm saying it doesn't seem like a crazy outcome by the board.

[00:03:08] Speaker 02:
There's no other way to read Column 8 of Rosenberger except to divide those into alternatives.

[00:03:17] Speaker 02:
They're separated by the word or. If we go to Column 8 of Rosenberger...

[00:03:23] Speaker 02:
They're separated by the word or. So the first option is receive and recognize a speech trigger phrase and determine that it is in a better position to handle subsequent interaction. It continues to column 24 or when the user presses the push to talk button or in the event that the device is instructed to wake up.

[00:03:47] Speaker 02:
Those are three different alternatives. The wake up does not entail the device coordination methods. And Sonos needs the device coordination methods in order to get the messages that are being transmitted in low power mode in the claims.

[00:04:05] Speaker 00:
But after all three of those things, it changes its status life.

[00:04:11] Speaker 00:
Correct. The point I was getting back to. Sure. So why isn't it fair...

[00:04:17] Speaker 00:
for the board to not read them disjunctively despite the or because those three things change the status light.

[00:04:25] Speaker 02:
Because Rosenberger does not disclose that that status light is to indicate transitioning out of its low power listening mode. Instead, it expressly says that the status light is, this is on line 30, to prompt the user to say one of the speech commands.

[00:04:46] Speaker 02:
It is not to indicate exiting the low power mode.

[00:04:49] Speaker 00:
So it changes its status light or plays a pre-recorded message to prompt the user to say one of the words. So are you saying to me you think the change in the status light is what prompts the user to say one of the words?

[00:05:05] Speaker 00:
I thought the pre-recorded message was what prompted the user to say one of the words. And I assumed, I understood the board. to be saying the change in status light is the signal is coming out of low power mode.

[00:05:17] Speaker 02:
So I do think that's implied in the board's analysis, and I think that's wrong if you read this sentence. It gives the three alternatives that we talked about, and then it says the device beeps, changes its status light, or plays a prerecorded or synthesized audio message through a speaker. to prompt the user to say one or more speech commands. All three of those are different options to prompt the user to say one or more speech commands.

[00:05:48] Speaker 00:
And all three of those change the status line. any of those three would change the status line.

[00:05:54] Speaker 02:
I just want to make sure I understand your question.

[00:05:56] Speaker 00:
Any of the three... You're saying I should read the first three things as alternatives. Yes. That wake up is not tethered to receiving and recognizing speech trigger phrase, correct?

[00:06:06] Speaker 02:
That's correct.

[00:06:07] Speaker 00:
So if any of those three are alternatives, any of those three then result in changing of the status line.

[00:06:13] Speaker 02:
That's correct.

[00:06:14] Speaker 00:
I'm just trying to understand your construction.

[00:06:16] Speaker 04:
Does column A disclose exchanging waiting signals?

[00:06:20] Speaker 02:
It does not at all.

[00:06:22] Speaker 02:
The only time Colimate makes any fair reference to weighted signal exchange is in this parenthetical on line 24 where it says, see device coordination discussion below.

[00:06:37] Speaker 02:
And that is the main point of our argument, is that they are relying on a strict anticipation theory. Columate itself does not disclose it. Instead, it points you to later embodiments. It says, see device coordination discussion below. And when you go to those other embodiments, there are four of them described in figures 4, 5A, and 6.

[00:07:00] Speaker 02:
Every single one of them discloses that the device exits the low-power listening mode, which is what the board read on the claimed low-power mode, before device coordination.

[00:07:15] Speaker 02:
And so even if we take Sonos' theory that you have to...

[00:07:22] Speaker 02:
mix and match embodiments, it still fails because even the disclosures with regard to figures four through six do not disclose exchanging messages in the low-power mode.

[00:07:36] Speaker 04:
What is determining that it is in a better position to handle subsequent user interaction? Isn't that a waiting signal?

[00:07:46] Speaker 02:
So...

[00:07:50] Speaker 02:
Yes, Your Honor, I agree that this is all in that first option, determining that it's in a better position to handle subsequent user interaction than any other device that simultaneously recognized the same speech trigger phrase. See device coordination discussion below. That whole phrase is discussing the coordination methods. Nothing in there expressly talks about exchanging messages or exchanging weighted signals. In order to get that disclosure, which is part of the claims, you have to go to the other parts of Rosenberger.

[00:08:28] Speaker 02:
And even Sonos' expert did that in his analysis. He pointed multiple times to the coordination methods in Rosenberger's disclosure.

[00:08:43] Speaker 00:
So what is it you understand in this sentence is causing the wake-up? And do you believe the wake-up does correspond to exiting low power mode?

[00:08:55] Speaker 02:
I'll answer the second question first. No, in Rosenberger, I do not believe that waking up corresponds to exiting the low power mode.

[00:09:03] Speaker 00:
Okay, well then I'm going to ask you what, if anything, in this specification should lead me to understand that?

[00:09:09] Speaker 02:
Sure. There are three times that Rosenberger uses the word wake up.

[00:09:15] Speaker 02:
One in the part that we're talking about, which is 8.26 through 32. So just our position is it's not low power mode, exiting low power mode. It is describing the beginning of interaction with the user. And in all three of the instances where Rosenberger discusses wake up, it all uses it synonymously with interacting with the user. At 8, the column 8, the one that we're talking about now, wake up and expect a subsequent speech command.

[00:09:45] Speaker 02:
Column 10, lines 31 through 33, wake up, interact with person P1.

[00:09:52] Speaker 02:
The only other one is in column 2, lines 6 through 9, which is describing background prior art.

[00:09:59] Speaker 03:
And that was the last one?

[00:10:01] Speaker 02:
The last one that I just started on is column 2, lines 6 through 9. It's discussing background prior art, but it also says wakes up and prompts the user to say one or more commands.

[00:10:13] Speaker 00:
It says when a trigger phrase is detected, the system wakes up. Doesn't that mean exit low power mode?

[00:10:19] Speaker 02:
So, again, this is discussing...

[00:10:22] Speaker 02:
Prior art that is not related to the patent, or is not the patent. It's discussing the Zigbee prior art.

[00:10:28] Speaker 00:
And in that prior art, because I will certainly look at it, in that prior art, does wake up correspond to exiting no car mode?

[00:10:47] Speaker 02:
I can't remember, to be honest with you, Your Honor.

[00:10:49] Speaker 00:
Okay, but suppose it does. Suppose it does. It's a play on worst-case scenario, isn't it? Yes. Suppose in the Zigbee reference it's pretty clear to all of us that when the system, you know, air quotes, wakes up, it's exiting low-power mode. Then wouldn't I have, in this disclosure, one use of the word wake up that corresponds to low-power mode, and whether ultimately you're right or wrong in my eyes about how column H should be interpreted, I have to give deference because the question is that.

[00:11:15] Speaker 02:
Yeah, I mean, the board never made that finding.

[00:11:18] Speaker 02:
And so I think if we look at the record as a whole, the board, to my recollection, never made that finding below. And so I think the courts could still reverse on this determination.

[00:11:31] Speaker 00:
Well, that would be remand now.

[00:11:32] Speaker 02:
Remand, sorry.

[00:11:38] Speaker 00:
All right, there was a second part to my question, which I think that we skipped over because you said there were three places, so I wanted to know the three places. The second part was, what do you understand in column eight is the wake-up? That implies an action, right? Yes. So what is the action? What does it mean to the system to wake up?

[00:12:01] Speaker 02:
You interact with the user.

[00:12:04] Speaker 02:
You interact with the user. You begin the user interaction. Prompt the user to say one or more speech commands.

[00:12:13] Speaker 04:
So when column A says determining that it is in a better position to handle subsequent user interaction, is that... That's describing the coordination.

[00:12:28] Speaker 02:
process in figures four through six. That is a precursor to a precursor to waking up. So in the device coordination discussion, the way that Rosenberger works is the device receives a trigger phrase, It is triggered, according to Rosenberger, which Rosenberger says trigger, i.e., switch from a low-power mode to an active mode. Then it does the coordination, which is what's important for them to read on the claims. It exchanges the messages.

[00:12:59] Speaker 02:
It's doing all of that in active mode. Then it determines which one is in a better place to handle the subsequent user interaction. That's what CallMate is talking about. Then, only then, does the device wake up.

[00:13:14] Speaker 02:
That is the way to read column 8, taking into account all the words, all of the alternatives, the commas, and the structure of that paragraph.

[00:13:24] Speaker 04:
What's the impact of the instruction in column 8, up around line 24, that says, see device coordination discussion below? Doesn't that get a broader description than what you're referring to?

[00:13:42] Speaker 02:
The only device coordination discussion below are the four embodiments that Rosenberger describes in figures four through six.

[00:13:54] Speaker 02:
Again, it's like a chicken and an egg problem. In order to get anticipation, Sonos needs to show the exchange of these messages. To show the exchange of these messages, it has to point to some of these coordination controller methods. But the problem is, in all four of them, the device always gets triggered, which means in Rosenberger, it exits the low power mode, it gets triggered, and exits the low power mode before coordination begins, before the message exchange.

[00:14:27] Speaker 00:
Okay, why don't we take some of your time for a bottle.

[00:14:29] Speaker 02:
Thank you.

[00:14:40] Speaker 01:
May it please the court.

[00:14:43] Speaker 01:
The substantial evidence standard compels affirmance. The board reasonably found that column eight of Rosenberger discloses its own embodiment where the devices remain in a self-described low power mode while exchanging coordination signals and exit that mode only after determining which device should respond. And that's evidenced by the winning device changing its status light, beeping or playing a message to indicate waking up to a more power-intensive mode.

[00:15:14] Speaker 01:
Now, there's no obviousness or Kenna metal type theory here. Both parties agree that the cross-reference C coordination discussion below incorporates the later discussion. And the only question is the scope of that incorporation. And the board reasonably found the incorporation to just be about how to determine which device should respond, not the timing of when the device exits its low power mode. And that is a reasonable reading of column eight.

[00:15:45] Speaker 01:
If you look at column eight, and this is reflected most clearly, I think, in the board's decision at appendix 25, but also appendix 94. If you look at column eight, the board parsed it reasonably to disclose three steps.

[00:16:00] Speaker 01:
Starting in a low power mode, a self-described low power mode, which is undisputedly satisfies the claimed low power mode. The second step is these exit methods. And the one that's relevant here is hearing a trigger phrase and determining that that device is in the best position to respond. So it requires both, hearing the trigger phrase and determining. And then and only then does it get to the third step of exiting, which is the device beeping, changing its status light, applying a pre-recorded message to indicate waking up.

[00:16:35] Speaker 01:
Now, a few points on this waking up issue, which is sort of, there's questions about that. First, I point this court to, just before the paragraph in column eight, lines 14 to 16.

[00:16:49] Speaker 01:
Rosenberger explains that the status light is for visually indicating various device states and modes. It's clearly just stating that it changes status, that it indicates a change in status, just like you would expect something called a status light to indicate. The board reasonably read this. You're starting in low power mode, self-described, and then there's a change in the status light. A reasonable reading of that is that's the exit of low power mode.

[00:17:17] Speaker 00:
Why? How does the change, where in perspective is changing the status light trigger exiting low power mode?

[00:17:27] Speaker 01:
Well, so in lines 14 to 16, it explains that the status light is for visually indicating various device states and modes. The next sentence is explaining the relevance mode that the device starts in. It's the self-described low power mode. And then at the very end of the third step, which is lines 28 to 33, when it's indicating changing its status light, a reasonable reading of that is, okay, you've started in low power mode, and then at the end of this process, after hearing the trigger phrase and determining you're in the best place to respond, you're changing the status light because you're exiting that mode.

[00:18:02] Speaker 01:
That is a reasonable interpretation of this disclosure. There was a suggestion from Google that waking up refers only to responding to the user. But there's no need to read waking up as somehow mutually exclusive. It can only refer to responding to the user and can't also indicate exiting the low power mode at the same time. And that's precisely how the board read the passage. And that makes sense. When we're looking at step two, the different ways to determine which device should respond, there's three ways.

[00:18:33] Speaker 01:
There's hearing the trigger phrase and making the coordination.

[00:18:37] Speaker 01:
there's pressing a button, and there's also getting the system controller to send a message instructing you to wake up. Well, those are all treated equivalently. Even if they are disjunctive, it's all equivalent to doing the same thing. And so waking up refers to a device that has started in a low-power status mode and then wakes up and exits it by the change in the status light. And I would also point out something that Google's own theory of its own patent is using the same usage of wake up.

[00:19:07] Speaker 01:
If you look at Appendix 19, Note 10, the board explains how the ITC has found these claims indefinite for the usage of low power mode. And the board also notes that the way that Google defended its support for that claim is its patent's reference to waking up. Waking up is supposed to refer to exiting the low power mode and also interacting with the user. This is clear from their brief at 2 and 6 to 7 of their opening brief. They explain this waking up sleeping terminology in their patent and how they're mapping it on to exiting the low power mode.

[00:19:43] Speaker 00:
And can I just ask a housekeeping question? If we were to disagree that the board's fact findings are supported by substantial evidence here, is it your position that that would still require us to remand because – the board did not address your alternative theory that Rosenberger discloses another low-power mode different from the self-described low-power listing mode?

[00:20:07] Speaker 01:
We think this court should affirm on that alternative.

[00:20:09] Speaker 00:
I got that. That was why I started the question with if I were to find there was no substantial evidence.

[00:20:14] Speaker 01:
No, I understand. If you were to disagree with the board's reasoning and its finding on column 8... We think on our alternative ground, you should still affirm even though the board didn't reach it is the point I'm trying to make. Because as a matter of law, the evidence only permits that conclusion. At the bare minimum, you need to remand. But I'm saying more aggressively, you should affirm, as we've explained in our response brief.

[00:20:34] Speaker 00:
We don't make fact-finding.

[00:20:37] Speaker 01:
I understand, Your Honor. Fact-finding.

[00:20:39] Speaker 01:
I understand, Your Honor, but the point is you do determine that certain things can only be decided one way as a matter of law. When you reverse, for example, when you reverse a tribunal below, sometimes you determine that the evidence is so one-sided that the court or agency below could not have reached a contrary determination.

[00:20:56] Speaker 04:
How do you reach this issue?

[00:20:59] Speaker 04:
I agree, Judge Raina. Should we remand in order for the board to reach that issue?

[00:21:07] Speaker 01:
I think, again, at the bare minimum, you should remand. If you disagree with me that you can find as a matter of law, certainly remand. But I'm pressing that you should affirm, and if I can just explain why that is the case.

[00:21:19] Speaker 01:
The only evidence on this is evidence that the devices remain in the claimed low power mode even if they exit upon this self-described power mode upon doing the coordination exchange process. Our expert testified at 806, paragraph 93, Aposita would have readily understood from Rosenberger's disclosure that an operating mode in which Rosenberger's control device does not interact with the user and process voice commands would require a lower amount of power than an operating mode in which Rosenberger's control device does interact with the user and process voice commands.

[00:22:00] Speaker 01:
That is the only, beyond what's in Rosenberger itself, which supports that testimony, they have submitted no evidence otherwise that it does not operate in a lower power. And that's for a good reason. As I just mentioned, in the ITC, they're trying to defend their waking up disclosure as exiting a low power mode. So they do exactly what Rosenberg is saying here about responding to a user based on winning a coordination method. And so that's what they map exiting the low power mode to.

[00:22:32] Speaker 01:
So they could hardly say otherwise. So they actually haven't put any evidence in rebutting our expert. And it makes sense, intuitively, looking at Rosenberg. Once you win device coordination, you send a control signal. You start responding to the user, doing all sorts of things in response to the user to carry out its commands. You beep, you change your status light.

[00:22:48] Speaker 03:
You talked about column 8. What does column 11 contribute to the issue here?

[00:22:55] Speaker 01:
So what column 11 contributes is that it shows the mechanism by which the determination is made of which device is meant to respond. It's the signal exchange process, these exchange of weighted signals, and the board read column 11, the cross-reference of C device coordination discussion in column 8, to refer to column 11's processes exchanging signals, but not import its use of the word trigger, which is imminently reasonable because column 8 makes its own use of the word trigger.

[00:23:30] Speaker 01:
It talks about triggering before it even gets to this cross-reference, then it talks about determining, and with regard to determining, it makes the cross-reference.

[00:23:40] Speaker 01:
And so that, I think it was argued on the other side that column 8 doesn't disclose exchange of coordination signals. It does, as the board read it. It does because it's incorporating that aspect of column 11.

[00:23:57] Speaker 01:
And if I can just get back to this alternative ground, I mean, the claim construction here that controls is an operating mode or state in which power is conserved, not the lowest power mode, not the only operating mode or state in which power is conserved. So it doesn't matter if Rosenberger's listening mode is a low power state. There's at least another low power state, which is... During coordination, the device is not interacting with the user, and that's clearly a mode or state. Why do we know it's a mode or state? Because at column 8, lines 14 to 16, we've talked about how the LED status light indicates various device modes or state, and we know that when it wakes up, it's changing a state.

[00:24:38] Speaker 01:
So we have all the pieces here. We've got low power based on our evidence. They've submitted no rebuttal evidence on that. The only thing they've said is that Our expert's testimony is conclusory. It's not conclusory. He's testifying from his perspective as a skilled artisan, and it's corroborated by Rosenberger itself and how Google's litigated its own indefinite defense in the ITC.

[00:25:02] Speaker 04:
So how many pieces are you relying on? Four?

[00:25:06] Speaker 01:
For which part?

[00:25:07] Speaker 04:
It seems to me if one of them doesn't fall in your favor, there's no anticipation.

[00:25:15] Speaker 01:
I want to make sure I'm responding precisely. So as to the substantial evidence finding that the board made, the board's finding, we're just relying on their reading of column 8.

[00:25:26] Speaker 01:
But as to this independent ground of affirmance, we are relying on our experts' testimony and Rosenberg are corroborating it. I mean, I think either one is sufficient, but it all shows that the evidence is one side on that. They have nothing on the other side. Okay.

[00:25:46] Speaker 01:
So I'm happy to discuss either ground further if there are questions, but otherwise we would ask for the support to affirm for either or both reasons.

[00:25:54] Speaker 00:
Okay, thank you, Mr. Bay. I mean, thank you, Mr. Mendoza.

[00:26:06] Speaker 02:
Thank you, Your Honors. I hope to address two points quickly. One is...

[00:26:12] Speaker 02:
The housekeeping issue of what to do on the alternative grounds, we think that the court would have to remand. There are disputes of fact. First of all, the board did not reach the alternative theory in the first place. Second of all, there are several disputed facts. We argued below that Rosenberger only discloses a single low power mode. The board suggested even during the oral hearing that it agreed with our argument. We also refuted the position that other low-power modes exist simply because Rosenberger's device beeps and lights up.

[00:26:45] Speaker 02:
We also, at Appendix 599, took on Sonos' argument that Rosenberger conserves power during the coordination as being unsupported by the record. So there are factual disputes that I think would preclude affirmance on that alternative ground. The other point that I wanted to get to, unless the Court has other questions, is just the discussion – that my colleague had with Judge Lurie about the import of column 11. I believe Mr. Manos said that column 11 is important because it's the mechanism for exchanging signals.

[00:27:20] Speaker 02:
That's the whole point. We agree. That is the mechanism for changing signals in Rosenberger. It's Rosenberger's only disclosure of exchanging the weighted signals, and they need that part to read on the claims. Now, here's what Sonos is trying to do. They're taking the weighted signal exchange from that part of column 11 and saying, ignore the part about triggering. Ignore the part that in every single one of those instances, Rosenberger's device is triggered and in the low power mode.

[00:27:50] Speaker 02:
Instead, go to this other part of what they say is a separate embodiment and combine that part. That is not anticipation. That is obviousness. And Sonos is trying to defend the board's theory here with obviousness, not the anticipation ground that it presented in its petition. Thank you.