[00:00:00] Speaker 01: The United States Court of Appeals to the Federal Circuit is now open and in session. [00:00:05] Speaker 01: God save the United States in this honorable court. [00:00:09] Speaker 03: Good morning. [00:00:10] Speaker 03: Please have a seat. [00:00:12] Speaker 03: We have five cases before the court this morning. [00:00:17] Speaker 03: Four of the cases are argument which we're going to hear this morning. [00:00:22] Speaker 03: And one case has been submitted on the briefs. [00:00:25] Speaker 03: Our first case is Netlist Inc. [00:00:28] Speaker 03: versus Samson Electronics Company, LTD. [00:00:33] Speaker 03: Counselor, that's number 24-1707. [00:00:38] Speaker 03: Counselor Fischel? [00:00:40] Speaker 03: Yes. [00:00:42] Speaker 03: You have reserved four minutes of time for rebuttal, correct? [00:00:45] Speaker 03: Okay, you may proceed. [00:00:49] Speaker 01: Good morning. [00:00:49] Speaker 01: May it please the court? [00:00:50] Speaker 01: The Netlist 339 patent claims a novel memory module structure that reduces load and noise, improves signal quality and integrity, and increases speed. [00:01:01] Speaker 01: It uses a latency parameter to control the timing of data paths through a data buffer, and it uses tri-state buffers to actively drive that data so that memory devices get the data at the right moment to act on it. [00:01:14] Speaker 01: The prior art references that the petition relied on, Ellsbury and Halbert, do not teach any of that or make it obvious. [00:01:20] Speaker 01: I would like to start with the board's errors in using posted CAS N from Ellsbury as the latency parameter within Ellsbury's switches. [00:01:30] Speaker 01: Nothing in Ellsbury teaches that [00:01:33] Speaker 01: Posted CASN is being used to control data paths, let alone to control the timing of when they are enabled or disabled. [00:01:40] Speaker 01: And also, then the board tried to fill that gap by using a reference not cited in petition, the 537 patent, in violation of this court's ruling in core photonics and section 312. [00:01:51] Speaker 02: Of course, the argument is that they are not using that reference as an additional reference. [00:01:58] Speaker 02: It's evidence of general knowledge. [00:02:03] Speaker 02: Tell me why that's wrong. [00:02:05] Speaker 01: Even if it were evidence of general knowledge, which it is not, there was no evidence that it was widely known in the general knowledge. [00:02:12] Speaker 01: Conning Clicka actually says that you need to show both that it's in the prior art and that it's within general knowledge. [00:02:19] Speaker 01: There was no evidence of that because this is attorney argument Samsung raised on reply. [00:02:23] Speaker 01: Even if there were some evidence of that, which again there is not and it's actually not how the board was using it, [00:02:29] Speaker 01: it still would need to be in the petition because it's being used to fulfill a critical structural limitation in the claims, which is the latest parameter. [00:02:36] Speaker 02: You'll agree with me that you can rely on general knowledge of what is commonly known, widely known, without having to cite a specific reference [00:02:50] Speaker 02: is that we have some cases that outline exactly what the parameters might be to do that. [00:02:57] Speaker 02: But I suppose the argument here is that the 537 patent might disclose something. [00:03:07] Speaker 02: And that's true for every patent. [00:03:10] Speaker 02: Every patent discloses the knowledge of whatever it is that it recites. [00:03:16] Speaker 02: But that doesn't necessarily mean that that's general knowledge. [00:03:20] Speaker 02: And I think that's the issue, is whether just the recitation in paragraph 21 of that reference may reflect the understanding of whoever reads that paragraph. [00:03:33] Speaker 02: It doesn't necessarily reflect what is generally known. [00:03:38] Speaker 01: A few answers to that question, Your Honor. [00:03:40] Speaker 01: You're absolutely right. [00:03:42] Speaker 01: Just citing a prior art reference does not show that it's generally known. [00:03:45] Speaker 01: That's what Conning Clicka says. [00:03:47] Speaker 01: It says you have to show both that it was in the prior art and that it was generally known. [00:03:50] Speaker 01: Those are separate requirements, evidentiary requirements. [00:03:53] Speaker 02: Because if that is not the case, if that's not the rule, then anybody in an IPR following the other side's response can come back and cite whatever references they want. [00:04:07] Speaker 02: and say, well, those references reflect the knowledge of what's contained in those references. [00:04:13] Speaker 02: I'm not using it as a prior art reference. [00:04:16] Speaker 02: That's not my basis for the petition. [00:04:19] Speaker 02: So I'm not running afoul of that rule. [00:04:22] Speaker 02: I'm just citing it for general knowledge. [00:04:25] Speaker 02: But that can't be the case. [00:04:27] Speaker 02: There has to be more. [00:04:28] Speaker 01: Yes, Your Honor, it would create a massive loophole in core platonics and Section 312, which require you to include everything in your prima facie obviousness case in your petition. [00:04:38] Speaker 01: And here the petition didn't even talk about the concept that the board used the 537 patent to satisfy. [00:04:43] Speaker 01: It didn't talk about using buffer latency in the context of what is a latency parameter at all. [00:04:50] Speaker 01: The petition is completely silent on that. [00:04:52] Speaker 04: But the 537 is attached to the petition as an exhibit and incorporated by reference in your patent that they're challenging. [00:05:00] Speaker 04: And I think it was the subject of at least deposition testimony. [00:05:05] Speaker 04: Doesn't all of that make this at worst? [00:05:09] Speaker 04: I don't know, harmless error. [00:05:10] Speaker 01: No, Your Honor, a few reasons. [00:05:12] Speaker 01: One is, if you actually look at the deposition testimony that Samsung cites, it's deposition testimony of our expert. [00:05:17] Speaker 01: And he refuses to say that this was known. [00:05:19] Speaker 01: He says a skilled artist could look at it and understand it. [00:05:22] Speaker 01: That goes to what Judge Lynn just said. [00:05:25] Speaker 01: It's not something that was generally known. [00:05:27] Speaker 01: And when you look at, if you're talking about it being incorporated by reference into the spec, this court's precedents are very clear. [00:05:34] Speaker 01: You cannot use the specification as a roadmap to identifying obviousness or identity. [00:05:40] Speaker 01: teaching the claim, which is what that would do. [00:05:43] Speaker 04: But here we have, and I recognize the board said a number of different things about the 537, but at least some of the things they said, I think, are consistent with our law. [00:05:52] Speaker 04: So at 46, for example, they say, considering the knowledge of a person of ordinary skill and the art as evidenced by the teachings of the 537 patent, the board is permitted, I think, to make findings of fact [00:06:06] Speaker 04: as to what the general knowledge of one of skill in the art would be and to say that sort of reflected in certain prior art that maybe wasn't cited in the petition. [00:06:17] Speaker 04: That concept is acceptable, correct? [00:06:20] Speaker 01: In order to make those findings, Your Honor, it would have to have evidence. [00:06:23] Speaker 01: The board is not entitled to make a declaration [00:06:26] Speaker 01: I think this patent, this one patent I'm pulling out of the stack, is general knowledge. [00:06:30] Speaker 01: And that's especially true in this case, because one of the inventors on the 537 patent is actually the same inventor that was on the 339 patent. [00:06:39] Speaker 04: Don't they have their own expert? [00:06:41] Speaker 04: I think it's Subramanian who talks about whether Ellsbury would be understood as adding one clock cycle. [00:06:49] Speaker 01: So that discussion, Your Honor, goes to Figure 8B. [00:06:53] Speaker 01: Subramanian actually conceded multiple times that Figure 8B is not relevant here. [00:07:00] Speaker 01: He said, and the specification of Ellsbury also shows that. [00:07:04] Speaker 01: Ellsbury says that Figure 8B only applies when all ports are active. [00:07:12] Speaker 01: So that's not the supposed one-port disabled embodiment. [00:07:15] Speaker 01: That's in paragraph [00:07:16] Speaker 01: 19, it applies to multiple banks concurrently. [00:07:19] Speaker 01: And Subramanian actually conceded that what figure 8B is doing there only applies to read operations. [00:07:26] Speaker 01: Our claims cover write operations. [00:07:28] Speaker 01: That's at appendix 9204, lines 8 to 12. [00:07:32] Speaker 01: It's also undisputed that 8B shows controlling devices and not data pass. [00:07:37] Speaker 01: At appendix 9203, line 18, Subramanian agrees that what is happening there is, quote, what's sent to the memory device. [00:07:44] Speaker 01: So that's not evidence of it enabling or disabling data paths. [00:07:47] Speaker 01: It would also be inconsistent with what the board did say. [00:07:50] Speaker 01: The board relied on posted CASN. [00:07:52] Speaker 03: Wasn't the 537 an exhibit to the petition? [00:07:57] Speaker 01: It was attached as an exhibit, Your Honor, but that is not sufficient under Core Photonics and Section 312, which requires the grounds and the evidence being set forth in the petition. [00:08:07] Speaker 03: Well, there was no surprise here to anybody, was there? [00:08:10] Speaker 01: This is not a question of surprise, Your Honor. [00:08:12] Speaker 01: It's a question about statutory compliance with the bounds that Congress has set on the board's authority in Section 312. [00:08:19] Speaker 03: Isn't the patent also admitted prior art? [00:08:22] Speaker 01: It is not admitted prior art, Your Honor. [00:08:23] Speaker 01: In this court's decision in Riverwood, it said very clearly that when an inventor cites his own, [00:08:28] Speaker 01: Work it is not admitted prior heart when and that is exactly what happened here the specification in our case cited With the same inventor cited that inventors prior work in the five three seven patent so that does not qualify as applicant admitted prior I Want to focus a little bit on why what the board said about posted CASN by itself is also inadequate It said that posted CASN was used for some purpose it never explained [00:08:59] Speaker 01: why or how Posted Cassette is actually used by the switch in Ellsbury. [00:09:04] Speaker 01: It's cited to two things, and I want to just take the court to those two figures. [00:09:08] Speaker 01: So starting with Figure 9, which is at Appendix 1845. [00:09:11] Speaker 01: So at the bottom of this figure, you can see it says, note, all other bits pass through as received from the host. [00:09:22] Speaker 01: All other bits refers to any bit that it does not have an arrow pointing down from the top of the page. [00:09:28] Speaker 01: So one of those bits that does not have any arrow pointing down, you can see in the top, it says posted CASN. [00:09:35] Speaker 01: So that shows that posted CASN is not being used by the switch. [00:09:38] Speaker 01: It's not being modified by the switch in any way. [00:09:40] Speaker 01: It's being passed through as received by the host. [00:09:44] Speaker 01: And then the next reference that the board relies on, the only other place it points to is paragraph 44. [00:09:52] Speaker 01: Paragraph 44 describes what is happening in Figure 9. [00:09:56] Speaker 01: It doesn't say anything about using anything in Figure 9 to enable or disable the switch, to time the enablement or disablement of data paths. [00:10:04] Speaker 01: What it says is that the command that's shown in Figure 9 is used to configure the memory devices. [00:10:11] Speaker 01: And some of those [00:10:12] Speaker 01: pieces, the parts with the arrows pointing down, are squelched or modified by the switch. [00:10:18] Speaker 01: That doesn't say anything about using post-CASN in the way that the claims require the latency parameter to be used. [00:10:26] Speaker 01: Samsung's own expert actually conceded that that's it. [00:10:29] Speaker 01: At Appendix 9130, he said that this is the only reference, this paragraph, paragraph 44, is the only thing that talks about the way that this is being used by the switch. [00:10:38] Speaker 01: That is not sufficient evidence to sustain the board's decision finding that the latency parameter limitation is top. [00:10:46] Speaker 01: What is going on here, Your Honor, this is a counterintuitive invention. [00:10:51] Speaker 01: What Netlist did was it added delay in order to speed up its devices. [00:10:56] Speaker 01: Everyone wanted more capacity, but that increased its load, reduced speed. [00:11:00] Speaker 01: Ellsbury solved that problem by rejecting delays. [00:11:02] Speaker 01: It said, I want a device that acts in real time. [00:11:05] Speaker 01: That's what Ellsbury said. [00:11:06] Speaker 01: What Netlist did was it solved the problem by introducing more delay. [00:11:09] Speaker 01: It added power hungry tri-state drivers [00:11:12] Speaker 01: that would tri-state buffers that would switch on and off with every write operation. [00:11:17] Speaker 01: Netlist figured that out, figured it out, figured out that it was worth it by testing and developing its groundbreaking hypercloud product. [00:11:25] Speaker 01: It actually tested this and it worked. [00:11:27] Speaker 01: And that went into the 339 patent. [00:11:29] Speaker 01: No one else had put all these pieces together, enabling, disabling, latency parameters, tri-state buffers, actively driving data to restore weight forms. [00:11:35] Speaker 01: That was the invention here. [00:11:37] Speaker 01: And with that, I would reserve the remainder of my time for rebuttal. [00:11:50] Speaker 00: Good morning, Your Honor. [00:11:51] Speaker 00: May I please support my clause for Sam's law? [00:11:54] Speaker 00: Obviously, I'll start where the judges did and look at this issue of using latency, the question of the 537. [00:12:00] Speaker 00: And what I'd ask you to do is look at the actual board decision. [00:12:03] Speaker 00: Because I think the board decision here is very instructive. [00:12:07] Speaker 00: And really, what it comes down to is the board looking at expert testimony and agreeing that Sam Teng's expert had provided a basis that was then also [00:12:18] Speaker 00: also supported by the 537 patent. [00:12:22] Speaker 00: So if you'll turn with me to page 46, which is right there where the conclusion is that, concerning the knowledge of a person of ordinary skill, that they would have understood that LS varies posted CAS latency would have been useful to account for propagation delay. [00:12:38] Speaker 00: That's right at the bottom of that page. [00:12:40] Speaker 00: In the paragraph above, [00:12:42] Speaker 00: where you see that they talk about both the 537 patent, but also the testimony of Samsung's expert. [00:12:49] Speaker 00: And they specifically find that that expert understood elsewhere to teach to a person of ordinary skill in the art that one cycle can be added to account for propagation delay. [00:13:02] Speaker 00: Now, you heard a lot of arguments on this one. [00:13:05] Speaker 02: But that teaching doesn't establish that it was generally known. [00:13:11] Speaker 00: Your Honor, this is in Ellsbury itself. [00:13:12] Speaker 00: This is not the 537 patent. [00:13:14] Speaker 00: So this is part of the person of ordinary skill in the art. [00:13:18] Speaker 00: Reading Ellsbury would have understood. [00:13:21] Speaker 00: So it's not going to the ordinary skill issue. [00:13:26] Speaker 00: Understand your concern on the 537. [00:13:28] Speaker 00: This is actually something different. [00:13:30] Speaker 00: So the board didn't rely only on the 537 patent. [00:13:34] Speaker 00: If this court considers the board's interpretation of the expert testimony, [00:13:38] Speaker 00: to be substantial evidence, which under this court's law is often substantial evidence. [00:13:44] Speaker 00: That's enough right there. [00:13:46] Speaker 00: Now, we did hear- Is that true? [00:13:47] Speaker 04: Yes, John. [00:13:48] Speaker 04: Even if we say there was error in what it did on the 537, can we just ignore that error if there's also substantial evidence from the expert? [00:13:57] Speaker 00: Well, I think, Your Honor, if you find that the 537 was not adequate evidence by itself, [00:14:03] Speaker 04: of, as the board said, that... The error I think we would find is that the board used the 537 as at least part of the evidence of what made a limitation in the challenge claims obvious, but yet that was not part of your petitioned grounds for finding anything unpatentable. [00:14:27] Speaker 04: If we think the board committed that error, but at the same time maybe think that you're right, that the expert would have been sufficient on its own, what do we do at that point? [00:14:37] Speaker 00: Well, first of all, the court would have to find that using this in reply was inappropriate. [00:14:43] Speaker 00: The court would have to ignore that we attached it to the petition. [00:14:47] Speaker 00: The court would have to ignore that it was published more than a year before the application had issued here. [00:14:52] Speaker 00: All of those things being taken into account, if you find a legal error, [00:14:56] Speaker 00: I would agree with you, there would need to be remand. [00:14:59] Speaker 02: What is the effect of attaching it to the petition when it is not listed as one of the grounds? [00:15:07] Speaker 00: It means that it's evidence available only for general knowledge. [00:15:11] Speaker 00: It's not evidence for, as my colleague said, a structural limitation. [00:15:16] Speaker 02: It could be evidence of general knowledge, even if it wasn't listed in the petition. [00:15:21] Speaker 00: There are two levels to it, Your Honor. [00:15:23] Speaker 00: If we put it in the petition, we can raise it in reply no matter what. [00:15:27] Speaker 00: If we don't put it in the petition, we have to show in reply that we're responding to something in the patent owner's response in order to justify that. [00:15:35] Speaker 00: We have both. [00:15:37] Speaker 03: It's not enough that it's just in the petition. [00:15:40] Speaker 03: If you reply, in the reply, it has to be a logical connection back to the petition. [00:15:47] Speaker 03: But if you just have it attached there, what's the purpose of it being an attachment? [00:15:53] Speaker 00: It was attached as art that was available. [00:15:58] Speaker 00: So to put the other side on notice is what you think the scope of the art is, which of course is one of the grand [00:16:04] Speaker 00: underline factual contentions for obviousness. [00:16:07] Speaker 00: So having it in the petition is just giving the other side fair notice as to what you think is part of the scope of the art. [00:16:14] Speaker 02: But let me put it this way. [00:16:16] Speaker 02: Having it attached to the petition doesn't lessen your burden to show that it's general knowledge. [00:16:22] Speaker 00: On the general knowledge point, I would agree, Your Honor. [00:16:24] Speaker 00: We have a finding as to that. [00:16:26] Speaker 00: So standing here, all I need to show is substantial evidence. [00:16:30] Speaker 00: that something that had been published years before was substantial evidence for the board to make a factual finding. [00:16:36] Speaker 00: So that is a substantial evidence test. [00:16:39] Speaker 04: And what was the substantial evidence for the board finding that this would be within the general knowledge of one of the skill and the art, other than the 537 itself? [00:16:49] Speaker 00: I would say that the timing of the 537, but I would also say, Your Honor, that you should look at the agreed undisputed level of ordinary skill. [00:16:57] Speaker 00: Now, that's at appendixes page 10 and 11. [00:17:01] Speaker 00: Of course, in RAM, this is at equal status as the scope of the ARC. [00:17:07] Speaker 00: And that included how the memory modules interact with memory controllers and also the JEDEC industry standards and the design and operation of standardized DRAM and SRAM memory devices. [00:17:21] Speaker 00: So we're talking about, in the 537, a patent [00:17:25] Speaker 00: that had been out there for years and is squarely in the scope of what the ordinary skill in the art is. [00:17:30] Speaker 00: I think both of those support as substantial evidence a finding of general knowledge with regard to the 537. [00:17:39] Speaker 00: Ford is very clear in saying, and this going back to the appendix page 46, as Your Honor pointed out, this is being used as evidence of general knowledge. [00:17:50] Speaker 00: So as long as we have substantial evidence, which the testimony of the expert is substantial evidence, that's enough. [00:17:58] Speaker 04: But they do also say, as I'm sure you know earlier in that page, primed with this teaching that is the 537 teaching, which sounds a lot more like they're saying that one of ordinary skill in the art wouldn't bring to the 537 this general knowledge. [00:18:14] Speaker 04: they need to get that knowledge from the 537, which sounds like it therefore needs to be part of your combination in order to be a grounds that the board can rely on to find the claims on patentable. [00:18:29] Speaker 00: I mean, respectfully, Your Honor, primed with sounds like the level of skill one brings, the general knowledge of what one brings. [00:18:36] Speaker 00: That's how the person is primed when they're reading elsewhere. [00:18:40] Speaker 00: And keep in mind, that's a separate [00:18:42] Speaker 00: finding that's a separate piece of evidence the board points to in addition to Samsung's expert. [00:18:48] Speaker 00: These are both just identifications of evidence supporting the eventual finding made at the bottom of page 46. [00:18:55] Speaker 04: Do you have anything specific to say about Koni Klika? [00:18:58] Speaker 04: I always get that name wrong, but we heard it pronounced, I think, correctly several times by your friend. [00:19:05] Speaker 00: OK. [00:19:05] Speaker 00: A couple of things I'll say about that. [00:19:06] Speaker 00: First of all, and we heard this from my colleague, [00:19:09] Speaker 00: Structural limitations was what was at issue here, and this is certainly not a structural limitation. [00:19:16] Speaker 00: This is a question of whether a latency parameter has a particular one-cycle change with respect to a buffer. [00:19:24] Speaker 00: All the structure is in Ellsbury, and there's no contention that there's not. [00:19:28] Speaker 00: How they get from structural limitation to this teaching of the person of ordinary skill in the art, who knows the standards of the industry, which include, I'll point out in its [00:19:38] Speaker 00: You know, the JEDEC reference that is undisputedly known to everyone lays out the timing. [00:19:44] Speaker 00: And that's very clear in the record in the JEDEC standard. [00:19:48] Speaker 00: If you look at, for example, appendix page 2135, it shows the exact timing for how you do one of these right operations. [00:19:59] Speaker 00: and explains that you can have additive latency, which is what you add to deal with what the module is doing. [00:20:06] Speaker 00: So I think we've got there the ordinary understanding this is not a structural limitation. [00:20:12] Speaker 00: We're nowhere close to the case that's cited by the other side. [00:20:18] Speaker 00: With regard to some of the criticisms that were made, I would like to go to that testimony from the deposition that my colleague pointed out. [00:20:28] Speaker 00: Because it is definitely something that, first of all, the board has the prerogative to decide that the testimony the board cited was more relevant than the testimony from the deposition. [00:20:39] Speaker 00: That's a starting point when we're looking at factual findings. [00:20:43] Speaker 00: But if you just look at that particular testimony, there is, assume, an assumption in that testimony. [00:20:49] Speaker 00: And I'll note my colleague didn't read the actual testimony. [00:20:52] Speaker 00: Where are you? [00:20:53] Speaker 00: I'm sorry. [00:20:54] Speaker 00: This is on Appendix page 9204. [00:20:57] Speaker 00: So this is the deposition testimony that my colleague quoted or cited. [00:21:03] Speaker 00: What's the volume? [00:21:05] Speaker 00: That's volume two, Your Honor. [00:21:06] Speaker ?: Volume two. [00:21:10] Speaker 00: I know it's voluminous. [00:21:11] Speaker ?: Sorry about that. [00:21:12] Speaker 00: Is the citation again? [00:21:14] Speaker 00: 9204. [00:21:16] Speaker 00: I just say the board looked at the law stuff. [00:21:25] Speaker 00: Is everybody there? [00:21:27] Speaker 00: So the particular lines that were cited by my colleague are lines 8 to 12. [00:21:33] Speaker 00: And you'll just see that he assumes that the latency is unchanged. [00:21:38] Speaker 00: So that assumption actually wipes out this whole issue, right? [00:21:41] Speaker 00: Because the testimony that the board pointed to is testimony about changing the latency. [00:21:48] Speaker 00: That's the whole point. [00:21:49] Speaker 00: He found a teaching of changing the latency. [00:21:52] Speaker 00: He's saying, well, if you assume that the latency is unchanged, yes, that's the answer. [00:21:57] Speaker 00: So this is not relevant. [00:21:58] Speaker 00: It doesn't contradict what the board relied on. [00:22:01] Speaker 04: What pages did the board rely on then? [00:22:04] Speaker 00: So the board, so going again to the board, page 46, they, I believe, relied on, so the board cites, of course, they cite to an exhibit, but I've got it. [00:22:18] Speaker 00: That would be 9181. [00:22:22] Speaker 00: So again, in this deposition in volume two. [00:22:33] Speaker 00: So this is the answer at lines 12 to 22. [00:22:37] Speaker 00: And in the second paragraph of the answer, specifically in lines 19 and 20, he talks about that you reduce the latency specified in the DDRs by one to account for the fact that there is a one cycle delay that's been added in. [00:22:51] Speaker 00: So that's that one cycle for the buffer that they're referring to in their briefing. [00:22:56] Speaker 00: The board was justified. [00:22:57] Speaker 00: We had substantial evidence to rely on that to make its conclusions. [00:23:02] Speaker 00: My colleague did not address their second argument, which has to do with whether ports are actually memory banks in Ellsbury. [00:23:10] Speaker 00: If the panel has questions, I'd be happy to address them. [00:23:14] Speaker 00: I think we're strong on the briefing and the figures that the ports and the banks are [00:23:18] Speaker 00: and the board had substantial evidence of that. [00:23:20] Speaker 04: Can you just quickly address, is there anything I can see in Ellsbury itself about how the posted CASN is used? [00:23:30] Speaker 00: I would say that if you ignore the person that's still in the art knowing about JEDEC, then they wouldn't know what posted CASN is, and it doesn't explain what they already know from JEDEC. [00:23:43] Speaker 00: But they do know about posted cast-in. [00:23:45] Speaker 00: The JEDEC reference talks about it throughout all the pages. [00:23:48] Speaker 00: Personal ordinary skill in the art reading that posted cast-in is provided knows what it's for, because JEDEC provides that. [00:23:55] Speaker 00: And the board relied on that. [00:23:57] Speaker 00: And that is substantial evidence for the board. [00:24:00] Speaker 00: Yes, Your Honor. [00:24:00] Speaker 03: Do we assume that a person of ordinary skill is aware of the standards? [00:24:07] Speaker 00: Your Honor, you might not in every case, but in this case, it's expressed. [00:24:11] Speaker 00: So in appendix 10 and 11, right at the bottom of appendix 10, you'll see it says, petitioner contends such person would have been familiar with various standards of the day, including JEDEC industry standards. [00:24:25] Speaker 00: And then the board goes on to say, we, this is on page 11, second full paragraph, on this record, we accept petitioner's statement of the level of ordinary skill in the art [00:24:36] Speaker 00: except that we omit the qualifier at least before the years of experience. [00:24:39] Speaker 00: But the JEDEC knowledge was accepted and it's undisputed on appeal. [00:24:44] Speaker 02: Where does Ellsbury explain how it uses posted CASN to control buffer data paths? [00:24:55] Speaker 00: As I answered Judge Stark, I would agree that if the reader doesn't know about JEDEC, [00:25:01] Speaker 00: the reader would not understand what posted CAS is for. [00:25:04] Speaker 00: But the reader does know about JEDEC, and JEDEC explains in lots of detail why posted CAS is provided. [00:25:12] Speaker 00: So the reader looking at, oh, you're providing posted CAS? [00:25:15] Speaker 00: I know what that's for. [00:25:17] Speaker 00: It's for all these reasons that JEDEC lays out. [00:25:20] Speaker 04: So is the board a little sloppy maybe when it says it must be used for this? [00:25:26] Speaker 04: It must be used for something. [00:25:27] Speaker 04: What they really mean, I guess you would say, is one of the skill in the art knows it must be used from this because they're familiar with JEDEC and the other things that they'd be familiar with. [00:25:37] Speaker 00: I don't think I would characterize the board as sloppy, Your Honor, but they don't mention JEDEC at that point, but they've mentioned JEDEC in their discussion of it in the pages previous. [00:25:47] Speaker 00: So I don't think it comes out of nowhere in any way. [00:25:50] Speaker 00: I think it's clear. [00:25:51] Speaker 00: I think this court can understand the path the board took to get to that conclusion. [00:25:57] Speaker 02: I mean, I know the argument was made that JEDEC [00:26:04] Speaker 02: in combination with Ellsbury teaches and shows that technology. [00:26:09] Speaker 02: But I'm not sure there's any explanation on your part as to or on the board's part as to why JEDEC fills that gap and explains how Ellsbury uses [00:26:25] Speaker 02: posted CAS and the control buffer data paths. [00:26:28] Speaker 02: Just to say, well, JEDEC shows you timing and shows you all of these things doesn't necessarily answer the question, it seems to me. [00:26:38] Speaker 00: Well, I'd point you to the petition itself. [00:26:41] Speaker 00: I mean, if we want to walk through, we did walk through and showed with the timing diagrams. [00:26:46] Speaker 02: And the board agreed with your analysis. [00:26:50] Speaker 02: But I'm not sure the board explained why it agreed. [00:26:56] Speaker 00: I think the board didn't have to explain when JEDEC has agreed to be part of the skill. [00:27:03] Speaker 00: There was no dispute as to that. [00:27:05] Speaker 00: And we pointed out how JEDEC teaches the specific timing diagrams. [00:27:10] Speaker 00: Now, my colleague pointed out, hey, but what about this buffer? [00:27:13] Speaker 00: But again, our expert explained how Ellsbury itself teaches adding that one cycle because of the buffer. [00:27:21] Speaker 00: That's what the board relied upon. [00:27:22] Speaker 00: The deposition testimony is not contrary. [00:27:26] Speaker 00: The evidence is all there for the board's conclusion. [00:27:28] Speaker 00: And the board specifies it's taking into account JEDEC. [00:27:32] Speaker 00: It's taking into account the expert's testimony. [00:27:34] Speaker 00: That's the substantial evidence that the board relied upon in reaching a factual conclusion. [00:27:42] Speaker 03: OK, we're out of time. [00:27:44] Speaker 00: Do you have another question? [00:27:48] Speaker 00: No. [00:27:49] Speaker 00: OK, thank you, Your Honor. [00:27:54] Speaker 03: Counsel Fischel, you have four minutes. [00:27:59] Speaker 01: Thank you, Your Honor. [00:28:00] Speaker 01: I want to start with saying the board absolutely here did rely on the 537 patent to supply an important structural limitation. [00:28:08] Speaker 01: It's talking about the 537 patent in its conversation about how the latency parameter is taught. [00:28:14] Speaker 01: It cites it 20 times. [00:28:16] Speaker 01: It refers to its teaching 10 times. [00:28:19] Speaker 01: And it's doing that because it thinks that this is a big deal. [00:28:22] Speaker 01: It thinks the 537 patents teachings are extremely important. [00:28:25] Speaker 01: But as we just heard, there's no dispute here. [00:28:28] Speaker 01: It was not in the petition. [00:28:29] Speaker 01: It was not discussed in the petition. [00:28:31] Speaker 01: Creating a loophole that allows petitioners to attach 7890 [00:28:36] Speaker 01: 100 exhibits to their petition and just include any prior art reference there and say that's enough to satisfy Section 312 in core fruitonics is not appropriate. [00:28:45] Speaker 01: The skilled artisan also does not need to be primed with a teaching that is already in the general knowledge. [00:28:51] Speaker 01: That's the reason that you have general knowledge. [00:28:52] Speaker 01: It's general knowledge that already exists in the field. [00:28:54] Speaker 01: That's what Conning Klika says. [00:28:56] Speaker 01: And there was no finding in the board's decision that the 537 patent rose to that level of knowledge. [00:29:04] Speaker 01: And this is very different from JEDEC for exactly that reason. [00:29:07] Speaker 01: As my colleague pointed out, the JEDEC standards were within the general knowledge. [00:29:11] Speaker 01: That was actually included in the petition. [00:29:13] Speaker 01: The board made a finding that JEDEC is within the knowledge of the skilled artisan. [00:29:17] Speaker 01: The board made no similar findings. [00:29:18] Speaker 01: There was no similar allegation. [00:29:20] Speaker 01: And there was no similar proof that the 537 patent did the same thing. [00:29:24] Speaker 01: My friend on the other side also relied again on Figure 8B, which we discussed earlier. [00:29:29] Speaker 01: I would just also note that also was not in the petition, and it was not the basis for the board's decision. [00:29:35] Speaker 01: If you look at the discussion of the boards that the board has there, the topic sentence of that paragraph, it's on Appendix 45, [00:29:44] Speaker 01: The board is talking about the 537 patent. [00:29:46] Speaker 01: And the next topic sentence of the paragraph that follows it on 46 is also talking about the 537 patent. [00:29:52] Speaker 01: That is the context in which the board was talking about figure 8B. [00:29:57] Speaker 01: Otherwise, I would just say the reason that none of this is in the evidence is because Samsung waited until reply to bring it up. [00:30:04] Speaker 01: They didn't even have their own expert talk about the 537 patent. [00:30:07] Speaker 01: My friend pointed to expert testimony at 9,204. [00:30:12] Speaker 01: He admitted the board did not rely on that testimony under Chenery and Stanford. [00:30:16] Speaker 01: This court may not rely on evidence that the board didn't rely on in order to affirm. [00:30:22] Speaker 01: And even if [00:30:24] Speaker 01: And JEDEC also, to answer Judge Lynn's question from earlier, which was, where in JEDEC does it say that PostCASN is used to enable and disable data pass? [00:30:34] Speaker 01: It doesn't, Your Honor. [00:30:35] Speaker 01: And we didn't hear any evidence to the contrary from my friend on the other side. [00:30:39] Speaker 01: It talks about the timing used in DRAM devices. [00:30:42] Speaker 01: It does not talk about the timing used in data buffers. [00:30:45] Speaker 01: These are different components. [00:30:46] Speaker 01: with different timing requirements, the board viewed it as absolutely critical that the latency parameter in the claims, which is a latency parameter for controlling data buffers, account for the time it takes to get through a data buffer. [00:31:01] Speaker 01: The board thought that was important. [00:31:02] Speaker 01: It was important. [00:31:03] Speaker 01: The board looked to an impermissible reference to teach that limitation. [00:31:07] Speaker 01: And with that, we would ask the court to vacate and remand. [00:31:13] Speaker 03: Thank you. [00:31:13] Speaker 03: We thank the parties for their arguments.