[00:00:00] Speaker 04:
Our first case is ST Case 1 Tech, Tequilla versus Squires, 23-2388.

[00:00:07] Speaker 04:
Mr. DiMarco, you have reserved four minutes of time for rebuttal, correct?

[00:00:19] Speaker 03:
Yes, Your Honor.

[00:00:19] Speaker 04:
All right, you may start.

[00:00:22] Speaker 03:
May it please the Court, my name is Andrew DiMarco, an associate at Devlin Law Firm on behalf of Appellant.

[00:00:28] Speaker 03:
The terms adjusting and adjusts in the 244 patent at issue today have already been construed by Judge Gilstrap at the Eastern District of Texas in the manner sought by appellant.

[00:00:37] Speaker 03:
We are here today because the board departed from those constructions in favor of construction supported by neither the specification nor pertinent law, and in some cases with little to no explanation.

[00:00:48] Speaker 03:
Appellant, however, has provided unrebutted expert testimony and support in the specification for the construction adopted in the Eastern District of Texas.

[00:00:56] Speaker 02:
I didn't remember there being anything that we would consider

[00:01:03] Speaker 02:
the kind of extrinsic evidence in the form of expert testimony that would raise an issue of fact.

[00:01:10] Speaker 02:
When an expert says, nothing more than, let me walk you through the specification, we've said repeatedly, that does not create a matter of fact.

[00:01:20] Speaker 02:
So, and I don't remember that the expert did anything like that, right?

[00:01:25] Speaker 02:
No extra patent usage.

[00:01:26] Speaker 02:
These terms out in the world of adjustment under, et cetera.

[00:01:33] Speaker 02:
So this is all an intrinsic evidence case.

[00:01:36] Speaker 03:
Yes, Your Honor.

[00:01:37] Speaker 03:
When it comes to the testimony of Mr. Kleinschmidt, he's referring to what a procedure would understand regarding the term adjustment in the context of the patent itself.

[00:01:46] Speaker 03:
And he cites to the specification.

[00:01:48] Speaker 02:
So can I ask you this question?

[00:01:50] Speaker 02:
And I know that this is kind of starting at the back end.

[00:01:54] Speaker 02:
On appendix page 19, right at the bottom of the page, you'll know the sentence I mean.

[00:01:59] Speaker 02:
The board says, even if your client's claim construction was right, Rosenberg sufficiently teaches that.

[00:02:13] Speaker 02:
Why would we not say, that's supported by substantial evidence, we need not decide the claim construction question?

[00:02:25] Speaker 03:
So Your Honor, there's several different reasons for why Your Honor should not find in that particular regard.

[00:02:34] Speaker 03:
So the Board, for starters, provides no explanation of any motivation to alter Rosenberg's continuous loop.

[00:02:43] Speaker 03:
So what we have here, the statement from the Board about

[00:02:46] Speaker 02:
Rosenberg, I'm sorry, why would one need a motivation?

[00:02:50] Speaker 02:
The board says in that admittedly one sentence, but then followed by several paragraphs that I think address an argument you made in your patent owner response about paragraphs 50 and 51 of Rosenberg.

[00:03:04] Speaker 02:
In the sense that issue here, the board cites paragraph 44 in which Rosenberg says, looking at our little figure, I forget, figure two or whatever, was it figure two?

[00:03:17] Speaker 02:
Yes, sir.

[00:03:17] Speaker 02:
Figure two.

[00:03:20] Speaker 02:
The steps can be performed in a variety of orders.

[00:03:23] Speaker 02:
It doesn't get more specific than that, but the board says in what reads like a fact-finding on a matter of the interpretation of a piece of prior art, which is a matter of fact, that we think that this teaches an order in which a timer is set before the adjustment occurs.

[00:03:49] Speaker 03:
Well, Your Honor, the issue with the board statement here is that it doesn't actually state why a person of ordinary skill in the art would be motivated to make those changes, assuming that this is the sort of obviousness argument that the petitioner relies on.

[00:04:04] Speaker 02:
I'm just going to repeat myself.

[00:04:06] Speaker 02:
If the prior art

[00:04:08] Speaker 02:
is read to teach that change.

[00:04:13] Speaker 02:
Who cares whether an ordinary skilled artisan would be motivated to make the change?

[00:04:23] Speaker 03:
So I mean, who cares in a very informal sense.

[00:04:27] Speaker 03:
In an informal sense, Your Honor, yes.

[00:04:28] Speaker 03:
Well, it's just that this finding of could be arranged has been found under therisense to be an insufficient legal basis for anticipation, if that's what Your Honor is stating, this idea that the board has found that it's sort of inherently disclosed here in this single sentence.

[00:04:44] Speaker 03:
The fact that, I think it was Mr. Polish, Samsung's expert, states that you could have arranged Rosenberg

[00:04:52] Speaker 03:
through this continuous loop in which the steps could be taken at any different point, that you might be able to find a scenario where you could configure something that reaches the steps of the 244 patent.

[00:05:03] Speaker 03:
That's all it simply states, but under Therasense v. Beckton, that's 593, F3rd, 1325, could have been arranged as insufficient for 102, which is why, Your Honor, I was jumping to 103.

[00:05:14] Speaker 03:
the assumption that if we could construe the board statement as being sort of an obviousness finding, then perhaps there might be something there.

[00:05:22] Speaker 03:
But even then the board's opinion, as you note, doesn't really go on to describe why a person of ordinary skill in the art would make the necessary alterations to reach the 244th patent.

[00:05:34] Speaker 04:
So what's your argument that Rosenberg does not

[00:05:37] Speaker 04:
render the pen obvious?

[00:05:39] Speaker 04:
Is that your argument, or are you arguing that the board never fully examined or explained itself with respect to Rosenberg?

[00:05:48] Speaker 03:
Well, certainly the latter there, Your Honor.

[00:05:49] Speaker 03:
I don't think that the board has gone into that great detail.

[00:05:52] Speaker 03:
There's some additional and new arguments.

[00:05:55] Speaker 04:
But you can see that if we do apply, if Rosenberg applies, then the pen is obvious, is rendered obvious.

[00:06:03] Speaker 03:
No, Your Honor, I don't necessarily concede that point.

[00:06:06] Speaker 03:
We haven't seen any evidence to that effect in the record here before us, which is why we state in our briefs that the new citations that have been supported or brought to the fore by Intervenor, which don't appear in the board's decision, that sort of evidence would need to be addressed on remand.

[00:06:29] Speaker 03:
And that's why we argue that there in our papers.

[00:06:31] Speaker 03:
There's simply not enough evidence there, at least not on this record, to render that decision.

[00:06:37] Speaker 02:
So on the claim construction question, what are your best points for your position that the timer has to start before adjustment occurs?

[00:06:52] Speaker 03:
I think the best point we have in our favor is the plain language itself.

[00:06:56] Speaker 02:
Plain is an overused word, right?

[00:06:59] Speaker 02:
This is close to a familiar situation where there's a modifier at the end and there are two possible earlier

[00:07:11] Speaker 02:
Reference for the modifier either the adjusting or the delivered Might not be the perfect example of that but Plain I think is an overstatement.

[00:07:25] Speaker 02:
Why do you think?

[00:07:27] Speaker 02:
either textually or from the spec or by the basic mechanics of how this operates that you really have to have that timer started before the adjusting of this is of the the music game, right?

[00:07:43] Speaker 03:
Yes.

[00:07:44] Speaker 03:
So let's just start with the very stated purpose of the invention itself, which is to make it easier for an individual who's wearing earphones to be aware of

[00:07:52] Speaker 03:
the ambient sound around them while listening to a podcast or music or something to that effect.

[00:07:57] Speaker 03:
So the very purpose is so that we can, upon the identification of hearing this ambient noise or a voice in this particular case, that ambient sound is increased while the media is decreased for that general purpose.

[00:08:10] Speaker 03:
If we were to apply the board's construction to say that during applies to when the

[00:08:18] Speaker 03:
when the sound is delivered rather than the adjusting point itself, we wind up with a curious scenario where you are adjusting a mixing gain of an audio content signal.

[00:08:30] Speaker 03:
that is delivered to the earphone with the ambient sound passed through during a voice timer pending voice activity.

[00:08:36] Speaker 03:
So what's occurring during the voice timer is, according to the Boyd's construction, the delivery of the audio to the earphone.

[00:08:43] Speaker 03:
But this creates a confusing issue because you're adjusting the mixing gain of an audio content signal that is delivered during that voice timer.

[00:08:51] Speaker 03:
So we wind up with a scenario where the adjustment is to the audio content signal is occurring still during the voice timer, not before the voice timer.

[00:09:02] Speaker 03:
So the board's construction is sort of erroneous in that regard.

[00:09:06] Speaker 03:
But also, if we take a look at it, you're adjusting the mixing gain of an audio content signal that is, per the board, delivered to the earphone with the ambient sound pass through.

[00:09:16] Speaker 03:
So what you're adjusting is the mixing gain of a single thing.

[00:09:20] Speaker 03:
What is being mixed?

[00:09:22] Speaker 03:
according to this interpretation, it's only the audio content.

[00:09:25] Speaker 02:
Was there a claim construction or otherwise clarity of what it means to adjust a mixing gain?

[00:09:30] Speaker 02:
I mean, I can imagine that it could mean either of possibly two different things, namely adjusting the gain of each of the two things in the mix.

[00:09:42] Speaker 02:
I don't think it means that here because

[00:09:44] Speaker 02:
I'm just going to keep calling it music, because it's simpler to keep.

[00:09:50] Speaker 02:
You're adjusting the game, which is the amplification of the music before it gets to the speaker, to be mixed with the other thing, which is the spoken voice from outside the user's head.

[00:10:07] Speaker 02:
And some of the other claims talk about adjusting the gain for that, right?

[00:10:15] Speaker 02:
Two separate things.

[00:10:17] Speaker 02:
So that could mean that you're adjusting the gain of the music to be mixed with the other source of sound.

[00:10:27] Speaker 02:
Why is this odd?

[00:10:31] Speaker 02:
I think that if I remember the government's brief, it contemplates the possibility that the adjusting is done outside the earphone before the music is then delivered to the earphone.

[00:10:49] Speaker 02:
quite sure what to make of that suggestion, but that at least would allow this to be read as adjusting the music game to be

[00:11:03] Speaker 02:
delivered to the earphones.

[00:11:09] Speaker 03:
Well Your Honor, I would suggest that under the board's reading the adjustment itself is occurring during the voice timer itself because there you're adjusting a mixing gain of an audio content signal delivered to the earphone with the ambient sound passenger during the voice timer.

[00:11:24] Speaker 03:
So even there wouldn't be happening before

[00:11:26] Speaker 03:
transmission or for preparation for future mixing, which, respectfully, I don't necessarily see supported in that language.

[00:11:32] Speaker 03:
But if we were to say that the adjusting is occurring for future mixing, I don't think that's what's recited here.

[00:11:40] Speaker 03:
Instead, actually, if we turn to Apix 54 at column 8, lines 39 through 41,

[00:11:48] Speaker 03:
We do have a discussion in the specification about what the step of adjusting the mixing gain is.

[00:11:53] Speaker 03:
And this was to your honor's earlier point.

[00:11:56] Speaker 03:
And I'll just read it here, because I think it's important.

[00:11:58] Speaker 03:
The step of adjusting the mixing- I'm sorry, line, column 8 line what?

[00:12:01] Speaker 03:
I apologize, your honor.

[00:12:02] Speaker 03:
It is column 8, lines 39 through 41.

[00:12:05] Speaker 03:
OK.

[00:12:05] Speaker 03:
And it says, the step of adjusting the mixing gain of an audio content signal includes decreasing the volume of the audio content signal delivered to the internal speaker when the voice activity is detected above a threshold

[00:12:17] Speaker 03:
and or increases the volume of the audio content signal delivered to the internal speaker when the voice activity is detected below a threshold.

[00:12:24] Speaker 03:
So here we have the adjustments of the mixing gain of the two separate things, and that's directly here in the screen.

[00:12:31] Speaker 02:
That connector was and or.

[00:12:33] Speaker 02:
So the or situation means that it covers decreasing the volume of the music and just letting the voice pass through without any adjustment of

[00:12:46] Speaker 02:
increase of the amplification of the voice.

[00:12:52] Speaker 03:
Yes, Your Honor, that would be supported in the spec, but that's, I would argue, not what's here in Exempt to Reclaim 1.

[00:12:58] Speaker 01:
Council, one question.

[00:13:00] Speaker 01:
Why would a person of ordinary felony art not understand maintaining

[00:13:03] Speaker 01:
to be a subset of adjusting here, particularly when it seems your expert agreed to that very point, 1334 to 1335.

[00:13:12] Speaker 03:
Well, Your Honor, I'll answer this question.

[00:13:16] Speaker 03:
I would like to reserve a little time for rebuttal.

[00:13:18] Speaker 04:
You can take your time to answer, Judge Sartsridge.

[00:13:21] Speaker 03:
Yes, Your Honor.

[00:13:21] Speaker 03:
Thank you.

[00:13:23] Speaker 03:
Well, Your Honor, I would like to address that very point because I don't think that's actually what Mr. Kleinschmidt is stating here.

[00:13:28] Speaker 03:
If we do look at 1335 through 1336, what Mr. Kleinschmidt is stating when he says that

[00:13:38] Speaker 03:
The adjusting step is satisfied when the gain is changed and that gain is maintained during a period in which the voice timer is active.

[00:13:47] Speaker 03:
That's not equating maintaining with adjusting, rather when he's... I'm not equating.

[00:13:52] Speaker 01:
Why isn't maintaining an example of adjustment to a person of ordinary skill in the art?

[00:13:58] Speaker 03:
Because what it is is maintaining a prior adjustment.

[00:14:01] Speaker 03:
And I think that's the key point there.

[00:14:03] Speaker 03:
In order for something to be maintained, it must first exist.

[00:14:05] Speaker 03:
The adjustment must have happened at a prior point.

[00:14:08] Speaker 03:
And that's why I think it's not merely a subset.

[00:14:11] Speaker 03:
It is the continuation of an adjustment.

[00:14:14] Speaker 01:
Is it within the scope of your claims as properly construed or not, maintaining a prior adjustment once the voice timer is activated?

[00:14:21] Speaker 03:
Maintaining is in this is within the scope.

[00:14:25] Speaker 03:
Yes, your honor.

[00:14:27] Speaker 03:
That's fine.

[00:14:27] Speaker 04:
Thank you Okay, thank you.

[00:14:30] Speaker 04:
We'll be sure you rebuttal time at the right time That's what I mean Thank You Judge Verna may please the court

[00:14:46] Speaker 00:
If I could start with the alternative basis for affirming the board's decision first.

[00:14:52] Speaker 00:
The board left no doubt, I think, on Appendix 19.

[00:14:56] Speaker 00:
But even if the claim had been construed the way appellant urges it to be construed, that is the order of steps that they urge.

[00:15:02] Speaker 00:
The board would have reached the same result, and that was based on disclosure in paragraph 44.

[00:15:09] Speaker 00:
It clearly states that although the steps of figure two of Rosenberg are shown in a particular order, they could have been reordered in a number of different ways.

[00:15:20] Speaker 00:
I think it's clear from the board's finding what the board is saying is that you could have flipped those two steps, the start of the time delay and the adjustment of the volume.

[00:15:28] Speaker 01:
And so you think it's clear, but in your brief, you go on for many pages.

[00:15:32] Speaker 01:
You cite certain evidence.

[00:15:34] Speaker 01:
All we have is one sentence from the board.

[00:15:36] Speaker 01:
Can we really, in a review of an administrative agency, credit all the thoughts that you've put into it that just simply aren't there in what the board wrote?

[00:15:48] Speaker 00:
Sure.

[00:15:48] Speaker 00:
And so I think the expert testimony that we cited might be relevant if the court wanted to engage in a harmless error review.

[00:15:55] Speaker 00:
But I think that we don't really even need to get there, because I think that the amount that the board really needs to say on this score depends on the delta between what's recited in the claims and what's in the prior art.

[00:16:05] Speaker 00:
And here, the delta is very small.

[00:16:06] Speaker 00:
The delta is just the order of steps.

[00:16:08] Speaker 00:
And so I don't know that much more was needed here.

[00:16:11] Speaker 00:
I disagree with my friend on the other side that motivation was actually needed.

[00:16:15] Speaker 00:
One, because the reference actually discloses changing the order of the steps.

[00:16:18] Speaker 02:
Well, it says there can be change of steps.

[00:16:21] Speaker 02:
It doesn't say change these two steps.

[00:16:25] Speaker 00:
Of course.

[00:16:26] Speaker 00:
But I mean, there's only like five steps recited there.

[00:16:29] Speaker 00:
And so I think that a natural way of reading is also to encompass those two steps.

[00:16:34] Speaker 00:
But even if that disclosure is not necessarily sufficiently specific, I think that when you have a situation where there's only, you have a known problem, that is, you're trying to figure out how to span gaps in a conversation without changing the volume too quickly.

[00:16:52] Speaker 00:
There's only two possible solutions here.

[00:16:53] Speaker 00:
You either start the timer before, or you start the timer after.

[00:16:56] Speaker 00:
In that situation, I don't know that you need a separate motivation.

[00:17:00] Speaker 00:
I think KSR teaches us that one of ordinary skill in the art has good reason to try both of those alternatives.

[00:17:04] Speaker 00:
And both of those alternatives would be obvious, the one of ordinary skill.

[00:17:07] Speaker 01:
I'm just more concerned, I think, about the standard of review from an administrative agency.

[00:17:13] Speaker 01:
The KSR point, I'm just not sure we can affirm on that when I'm not sure that was even argued to the board, but certainly the board doesn't say it.

[00:17:23] Speaker 01:
So that's just one example of things that you're reading into the board may be perfectly plausible that may be what the board thought, but since they didn't tell us that, is it really fair for us to affirm on that ground?

[00:17:35] Speaker 00:
Well, I think so.

[00:17:36] Speaker 00:
Of course, I agree that the board's discussion here is brief.

[00:17:39] Speaker 00:
But I don't think there's a Chenery type situation here, because the board left no doubt as to how they would have ruled.

[00:17:45] Speaker 00:
So the ground that the board ruled on here was obviousness.

[00:17:49] Speaker 00:
And the board left no doubt here that the board would have found the claim obvious, even if the claim construction had been as appellant or just.

[00:17:57] Speaker 02:
So putting aside

[00:18:00] Speaker 02:
harmless error I think that's what was mentioned and there at least I can think of two kinds of administrative law issues that can be faced with a extremely abbreviated finding by the word finding about what Rosenberg teaches that very specifically that one is is there a

[00:18:24] Speaker 02:
Important evidence that the board didn't discuss that needs to be discussed.

[00:18:28] Speaker 02:
Second is is there some significant argument that the patent owner made that wasn't addressed?

[00:18:38] Speaker 02:
Are either of those two things missing from the board's discussion?

[00:18:42] Speaker 00:
I'm not aware of any.

[00:18:44] Speaker 00:
So there is certainly, as Judge Stark alluded to, there is additional evidence that might have supported an obvious conclusion.

[00:18:49] Speaker 00:
We cited that in our brief.

[00:18:50] Speaker 02:
What was the additional evidence?

[00:18:52] Speaker 00:
The Polish testimony.

[00:18:54] Speaker 02:
The Polish testimony.

[00:18:54] Speaker 00:
Exactly.

[00:18:55] Speaker 00:
So that would have further supported an obvious conclusion, because it further shows that the order of steps is not important.

[00:19:01] Speaker 00:
But I'm not aware of any argument or evidence that would have gone the other way that the board didn't address on this point.

[00:19:06] Speaker 02:
So maybe you can explain this.

[00:19:08] Speaker 02:
I took it that from the patent owner response around page 29, 30, so on, there was an argument about how Rosenberg doesn't really support this flipped order finding or conclusion.

[00:19:30] Speaker 02:
This is in the patent owner response below, not the patent owner response center, right?

[00:19:35] Speaker 02:
And it had to do with what paragraph 50 and paragraph 51 of Rosenberg teaches and the board right after this page 19 sentence immediately has two long paragraphs discussing paragraph 50 and paragraph 51.

[00:19:49] Speaker 02:
Is there any chance you can quickly clarify what that's all about?

[00:19:54] Speaker 00:
I think I'd have to go back and look at it.

[00:19:57] Speaker 00:
I don't recall Pan owner reerging that on appeal.

[00:19:59] Speaker 00:
So I'm I'm not I'd have to I can take a quick look at it.

[00:20:02] Speaker 00:
It's okay Okay, my apologies your honor

[00:20:09] Speaker 00:
So I think that even if the construction had been as appellant urges, the board would have found the same.

[00:20:16] Speaker 00:
And I think that that's fully supported in the Rosenberg reference.

[00:20:18] Speaker 00:
And it's supported in the board's own findings, which when discussing the claim dimension, the board's reason that the order of activating the timer and adjusting the game was not important to the claim dimension.

[00:20:29] Speaker 00:
That's a point that, as far as I'm aware, has not been disputed on appeal.

[00:20:35] Speaker 02:
So what are your arguments on the claim construction point, textual or specification, I guess, of the only two sources that have been meaningfully put before us?

[00:20:51] Speaker 00:
Yeah, absolutely.

[00:20:52] Speaker 00:
So in our view, the most natural reading of the adjusting limitation is to have the during clause modified to delivered.

[00:21:02] Speaker 00:
And I think that, so I think the board was confronted with this limitation that kind of pulls from two processes that are both described in the 244 patent.

[00:21:11] Speaker 00:
So one, you have this process described in figure 1B, where you have this continuous operation.

[00:21:18] Speaker 00:
You have, so on figure 1B, you have incoming audio and incoming ambient sound.

[00:21:27] Speaker 00:
So the two streams of data, and as my friend argues, and I completely agree, there's no memory disclosed here.

[00:21:34] Speaker 00:
So everything that comes in the top has to come out the bottom.

[00:21:37] Speaker 00:
And all those different steps are constantly working.

[00:21:41] Speaker 00:
And then on the other hand, you have what's shown in figures 2B and 2D, which is a series of steps, a series of discrete sequential steps that are used to determine the gains at 183 and 184.

[00:21:54] Speaker 00:
So when confrontable limitation that pulls from both of these kind of different processes that are described in the 2-4-4 pattern, and with the background idea that the whole point of the voice timer is not to have the gain be adjusted up and down during these conversations abruptly,

[00:22:11] Speaker 00:
I do more reasonably reason that adjusting in this context, in this limitation, is an umbrella term that covers both the initial adjustment followed by a period during which that adjustment is maintained at a level that's adjusted relative to when you were listening to music.

[00:22:29] Speaker 02:
Does your argument depend on our agreeing with you that the word adjustment here, the word adjusting, to use the active form,

[00:22:40] Speaker 02:
includes maintaining.

[00:22:45] Speaker 02:
Can you win on the claim construction point if I were to disagree with you about that?

[00:22:53] Speaker 00:
I think we could still win based on our kind of textual reading of the claim that is that the DURING clause modifies the DELIVERED.

[00:22:59] Speaker 00:
And I think that even apart from this idea, apart from the patent, whether adjusting includes maintaining, our point is narrower than that.

[00:23:07] Speaker 00:
It's that in the context of this limitation, when the patent uses this kind of phraseology, adjusting followed by delivering, mixing these two kind of processes that are happening in the 244 patent, in that circumstance, adjusting includes maintaining.

[00:23:21] Speaker 00:
I'm not sure if I answered your honest question, but I think that even if in the abstract, adjusting is understood as not necessarily including maintaining, I think that our argument is narrower than that.

[00:23:30] Speaker 00:
And even if that argument is not accepted, I think that based on the plain text of the claim, I think the most natural reading is to have the during modified to delivered.

[00:23:38] Speaker 02:
So how, in light of the specification, would or what in the specification

[00:23:47] Speaker 02:
indicates that you can have the adjusting first and the timer start later.

[00:23:57] Speaker 00:
So our point in the specification.

[00:24:01] Speaker 00:
So I guess two points there, Your Honor.

[00:24:03] Speaker 00:
First, there's no dispute, I think.

[00:24:05] Speaker 00:
In figure 2B, you do have the adjustment first.

[00:24:08] Speaker 00:
Sorry, you have, yeah, the adjustment happened first and the timer start later.

[00:24:12] Speaker 00:
You have 253 and 254 happened before the timer started and 255.

[00:24:18] Speaker 02:
Well, so if I remember right, you may have said something unduly strong, adverse to your position.

[00:24:32] Speaker 02:
The column, I think it's column five, is it?

[00:24:36] Speaker 02:
Yes.

[00:24:37] Speaker 02:
That says a timer starts before 2.55, precedes.

[00:24:41] Speaker 02:
That doesn't say how much before 2.55.

[00:24:44] Speaker 02:
It might be all the way up before 2.52, which would make some sense.

[00:24:50] Speaker 02:
because if the answer to the 252 question is the user, the one wearing the headphones speaking, is no, the next question is, was there a recent user?

[00:25:02] Speaker 02:
You can't have a question about what's recent without a timer.

[00:25:08] Speaker 02:
So I'm not sure

[00:25:11] Speaker 02:
I mean, the column five thing doesn't really say where in this process, except north of 255, the timer starts.

[00:25:23] Speaker 00:
So I think two responses to that.

[00:25:25] Speaker 00:
One, I think that that passage in column five refers to when user voice activity ceases, which to me suggests that in 252, the answer was yes.

[00:25:35] Speaker 00:
And I think that the whole point of the timer is to maintain

[00:25:40] Speaker 00:
to ensure, I guess not to use the word maintain, to ensure that the change volumes last as long as the conversation goes.

[00:25:48] Speaker 00:
So I think that the more natural reading of it is to have the volumes change and then use the timer to determine on the next go around whether there was still recent user activity or not.

[00:25:57] Speaker 00:
I think that's what's described in column six at about, the paragraph that starts about line 14.

[00:26:02] Speaker 00:
So I think that while I agree with Your Honor's point that it doesn't say exactly when fire to 255 the timer starts, I think the most natural reading of it is that the timer starts after 253 and 255.

[00:26:13] Speaker 04:
What happens when there is no sound?

[00:26:17] Speaker 04:
There's no sound at all.

[00:26:18] Speaker 00:
So in figure 2B, if there is no sound, if there's no outside sound.

[00:26:25] Speaker 04:
And nothing's happening.

[00:26:27] Speaker 00:
Then the music continues to play at the regular volume.

[00:26:28] Speaker 04:
And then what starts the entire process?

[00:26:30] Speaker 04:
Sound.

[00:26:31] Speaker 04:
Sound comes in.

[00:26:33] Speaker 00:
The user's voice, yes.

[00:26:34] Speaker 04:
The user's voice comes in, and then the voice timer turns on?

[00:26:40] Speaker 00:
So first, in figure 2B, first you change the two gains.

[00:26:44] Speaker 04:
Yeah, I think a person of ordinary skill would look at this and say, well,

[00:26:48] Speaker 04:
If there's no sound, nothing's happening.

[00:26:51] Speaker 04:
Suddenly there's sound.

[00:26:53] Speaker 04:
And then it activates a voice timer.

[00:26:59] Speaker 04:
Correct?

[00:27:00] Speaker 04:
Sure, absolutely.

[00:27:01] Speaker 04:
Okay, before that happens, is there any reason to adjust, to make any type of an adjustment to the ambient sound?

[00:27:08] Speaker 00:
before there's a voice?

[00:27:10] Speaker 00:
Yes.

[00:27:10] Speaker 00:
No, there's no reason to change the game before there's a sound from the user.

[00:27:15] Speaker 00:
The sound from the user is the trigger for changing the volume.

[00:27:19] Speaker 00:
That's what tells the system, I need to lower the volume of the music so that I can hear this person talking to somebody else.

[00:27:24] Speaker 04:
And when that happens, it's that the system has encountered sound and it's saying, no,

[00:27:31] Speaker 04:
we need some sort of adjustment, like the game.

[00:27:34] Speaker 04:
Elimination of static or leveling out the different sound levels.

[00:27:39] Speaker 00:
And in this situation, you have the game being changed before the timer starts.

[00:27:46] Speaker 04:
Why is that not an example of that the steps are required to be in order?

[00:27:51] Speaker 00:
So in this context, this part of figure 2b that we're starting, what we're discussing, the order would be actually contrary to what Appellant's urging.

[00:28:00] Speaker 00:
So in this situation, it would encompass a change in volume that happens before the timer starts, which is exactly how Rosenberg shows in figure 2b.

[00:28:11] Speaker 02:
So for you, I think I probably misspoke before.

[00:28:14] Speaker 02:
2b is a failure to specify

[00:28:19] Speaker 02:
that the timer starts above 252 and allowing the timer to start anywhere above 255 is an example of your construction.

[00:28:33] Speaker 00:
I think it supports our constructs.

[00:28:35] Speaker 00:
So I guess, taking a step back, the legal standard that we're confronted here with is either as a matter of logic or grammar, on the one hand, or does the specification compel a reading of the claims such that there's an order.

[00:28:46] Speaker 00:
And so I use figure 2b in that second bucket.

[00:28:49] Speaker 00:
Is the specification compelling an order?

[00:28:51] Speaker 00:
And here, since it doesn't, like your honor said, since it doesn't say that it's got to start before 255, it's not compelling a particular order of the claims.

[00:28:59] Speaker 04:
What should we do with respect to Judge Payne's opinion on assist construction?

[00:29:04] Speaker 04:
Should we give it any type of consideration in our view?

[00:29:09] Speaker 00:
Since it's a pure question of law, I think that, of course, it should be given due consideration.

[00:29:13] Speaker 00:
But I don't think it's controlling on the score.

[00:29:15] Speaker 00:
It wasn't controlling on the board.

[00:29:16] Speaker 00:
I don't think it's controlling on the score.

[00:29:19] Speaker 04:
OK.

[00:29:19] Speaker 04:
Any questions?

[00:29:20] Speaker 04:
All right.

[00:29:20] Speaker 04:
Thank you, counselor.

[00:30:22] Speaker 04:
You got everything set up?

[00:30:24] Speaker 04:
Yes, Your Honor.

[00:30:25] Speaker 04:
You got three minutes left now.

[00:30:26] Speaker 03:
Oh, I didn't take the time.

[00:30:32] Speaker 03:
Well, Your Honor, so I wanted to start very quickly by following up on my departing remark to start.

[00:30:39] Speaker 03:
I just wanted to clarify that maintenance within the scope

[00:30:42] Speaker 03:
of the claim so long as the adjustment is occurring during the timer.

[00:30:45] Speaker 03:
I wanted to clarify that point before I moved on.

[00:30:47] Speaker 03:
I also wanted to touch on a couple of things that my friend mentioned while he was up here.

[00:30:52] Speaker 03:
Specifically, my friend admitted that the Rosenberg analysis is occurring under 103.

[00:30:56] Speaker 03:
So this means that Rosenberg doesn't disclose any particular order directly, even with the continuous loop.

[00:31:02] Speaker 03:
And there's no statement from the board, as I mentioned, in that single sentence, which supports a finding

[00:31:08] Speaker 03:
under 103.

[00:31:09] Speaker 03:
So this is a Channery issue.

[00:31:11] Speaker 03:
The 103 argument is built up by Appellate Council and remand is required to address those arguments insofar as they were in fact made in the petition.

[00:31:19] Speaker 03:
I also want to note that my friend had mentioned that one maintains the adjustment in question, which of course goes to

[00:31:28] Speaker 03:
appellant's argument here.

[00:31:30] Speaker 03:
And also this occurs on page 19 of the brief.

[00:31:32] Speaker 03:
This is just normal language.

[00:31:34] Speaker 03:
That's why the plain language of this claim supports appellant's position.

[00:31:43] Speaker 03:
So I wanted then to turn to

[00:31:45] Speaker 03:
another particular issue, which is just, again, I want to focus on this idea that even under intervenors in the board's construction, if we look at during a voice timer pending voice activity, and if that only addresses when the audio content signal is delivered to the earphone, the adjusting of the mixing gain must still be occurring

[00:32:05] Speaker 03:
during that voice timer.

[00:32:06] Speaker 03:
That timer must exist and appear and be in use at the time of the adjustment.

[00:32:12] Speaker 03:
So again, it creates these ambiguities which are cleaner when we apply the claim construction that was adopted by Judge Gilstrap in the Eastern District of Texas.

[00:32:28] Speaker 03:
So I'll take this opportunity then to turn to a couple of statements

[00:32:34] Speaker 03:
There were some arguments that Mr. Kleinschmidt may have stated that maintaining the current gain is an adjustment, but I wanted to note that

[00:32:46] Speaker 03:
Rather, what Mr. Kleinschmidt is saying, and actually, if you take a look at Appendix 1334, it's page 35, line 17 through 20, Mr. Kleinschmidt offers a clear, explicit statement that adjusting refers to changing the game of the ambient sound pass-through, and that further backs up the specification support that we cited earlier here today at column 8.

[00:33:08] Speaker 02:
Can I ask a textual question?

[00:33:11] Speaker 02:
I'm not sure what significance the answer has.

[00:33:13] Speaker 02:
Sorry about that.

[00:33:15] Speaker 02:
Yes, Your Honor.

[00:33:15] Speaker 02:
When it says the signal delivered to the earpiece, does that cover both to be delivered and has been delivered?

[00:33:27] Speaker 03:
Under the board's construction, Your Honor, or under your view?

[00:33:30] Speaker 03:
In my view.

[00:33:37] Speaker 03:
My understanding of the term, Your Honor, is that it does not necessarily cover to be delivered.

[00:33:44] Speaker 03:
It says, adjusting a mixing gain of an audio content signal delivered to the earphone with the ambient sound passed through.

[00:33:50] Speaker 03:
So I do not think that this is a matter of the gain necessarily being adjusted and then sent.

[00:33:56] Speaker 02:
So what do you make of what I understood to be there to be several passages in the spec?

[00:34:04] Speaker 02:
that talk about divvying up some of these tasks between the earpiece and, say, a smartphone, so that maybe the adjustment occurs on the smartphone that's then delivered

[00:34:21] Speaker 02:
to the earpiece where a microphone at the earpiece picks up the ambient sound and they mix them and send them in?

[00:34:31] Speaker 03:
Well, yes, Your Honor.

[00:34:32] Speaker 03:
I think that those passages can certainly exist in harmony with our understanding of claim one.

[00:34:38] Speaker 03:
The specification can certainly be broader than what is claimed in claim one here.

[00:34:41] Speaker 03:
And other claims in the patent, I think, cover the scenario that Your Honor has just referenced.

[00:34:47] Speaker 03:
I believe that I am out of time unless Your Honors have

[00:34:50] Speaker 03:
There's no question I'd be happy to entertain.

[00:34:54] Speaker 04:
Okay, thank you very much.