INTEL CORPORATION v. PACT XPP SCHWEIZ AG
Oral Argument — 12/07/2022 · Case 22-1037 · 38:10
0:00
Judge Newman
The next target case is number 22, 1037, Intel Corporation against PACT, XBP, Schweitzer AG.
0:08
Mr. Appleby.
0:10
Judge Prost
Could I ask a question before the clock starts running?
0:14
Yes, okay.
0:15
Okay, I don't know if the other side has it.
0:17
I'm just curious, are there a lot of other IPRs involving these parties and related patents still going on?
0:24
We've got three.
0:25
We know there's a fourth.
0:26
Are there just a lot more cases in the pipeline?
0:30
Appellant Attorney (Robert Alan Appleby)
I do not believe so.
0:31
There were a total at one time of 12, but I believe all but, if somebody can correct me if I'm wrong,
0:41
but all but four, including these three, have been resolved.
0:44
That's good news.
0:45
There is a rehearing pending on a fourth that's not at issue here today that's pending at the PTAB,
0:54
and then there is a fifth patent that's under ex parte re-exam,
0:59
but I believe the other proceedings.
1:01
The other proceedings have been resolved.
1:03
That's my understanding, anyway.
1:05
Sorry.
1:06
Judge Newman
Okay.
1:07
All right, thank you.
1:08
Let's start the clock.
1:09
I think we're already in the strap.
1:11
Appellant Attorney (Robert Alan Appleby)
Thank you, Your Honor.
1:13
Good morning.
1:13
Robert Appleby on behalf of Appellant Intel.
1:16
May it please the Court.
1:18
In our briefing, Intel raised two errors that occurred below,
1:22
and that led to the Board to find that claim five, the only challenge claim,
1:26
was not unpatentable over the combination of Kabamoto and Bauman.
1:31
In finding that the combination,
1:32
that it did not render claim five unpatentable,
1:34
the Board went astray in two ways.
1:36
First, the Board found that Intel had not shown that one aspect of the interconnect system,
1:44
claim limitation of claim five,
1:45
was met by crediting an argument that PACT now admits it never made below,
1:50
which led the Board to ignore the evidence that Intel introduced on the issue.
1:54
Second, in assessing Intel's argument and evidence that the combination of Kabamoto and Bauman
2:01
represented known techniques,
2:02
to improve similar devices in the same way,
2:06
the Board, in our view,
2:07
did not follow the flexible and expansive analysis that's outlined in KSR,
2:12
but instead improperly cabined the inquiry to whether either reference expressly taught
2:17
that the combination would be an improvement over the prior art.
2:21
Judge Prost
Can I ask you, this permeates the other cases,
2:25
and if I start talking about the wrong patents in the wrong case,
2:27
please stop me right away.
2:29
But the question I have is, hypothetically,
2:32
if we agree with your APA stuff,
2:34
what do we do with a case like this?
2:36
Is a remand necessary,
2:38
or are we free, or required, or not allowed to then look at the merits argument ourselves?
2:46
Or do we have to give the Board another chance to say,
2:49
you looked at the wrong argument,
2:51
you were mistaken in terms of what PACT was arguing,
2:53
you came up with some new stuff, do it over.
2:56
Or, given the state of the record at this stage,
3:00
do we just review it,
3:02
and say, yeah, as a matter of law,
3:03
or as a matter of substantial evidence,
3:06
they didn't have enough on this record,
3:08
and review it on this record?
3:11
Appellant Attorney (Robert Alan Appleby)
So, in our view,
3:13
with respect to the interconnect subsystem limitation,
3:17
in our view that the evidence was uncontested below,
3:22
that that limitation was met,
3:24
and so we believe that this Court could find that limitation met
3:28
and send, and remand back to the Board,
3:32
for consideration of the obviousness issues.
3:34
With respect to the obviousness issues,
3:36
and the motivation to combine the Board,
3:38
in our view, never did the appropriate analysis,
3:41
under KSR, the flexible and expansive analysis
3:45
that would be required.
3:47
Judge Prost
But, so you're not saying that on this record,
3:49
there's sufficient basis to conclude that the Board erred
3:52
in its arguments regarding motivation to combine?
3:56
I mean, you point out all these errors.
3:58
Appellant Attorney (Robert Alan Appleby)
No, so maybe I misunderstood your question, Your Honor.
4:00
So,
4:01
I do believe that the evidence on motivation to combine
4:05
only points in one direction,
4:06
that the use of a known alternative of a shared segmented cache,
4:11
a second level cache,
4:13
in place of an individual second level caches,
4:16
that under KSR,
4:18
the evidence only points to one conclusion,
4:22
that there is obviousness in this case,
4:24
and I believe the Court could reach that conclusion.
4:26
Judge Prost
Okay, so when you say to send it back for some other obviousness things,
4:29
are there other obviousness things?
4:31
Like secondary considerations or stuff?
4:33
Appellant Attorney (Robert Alan Appleby)
There are not, in this case, Jim.
4:36
Judge Hughes
So, do you, I think,
4:40
what I'm still a little confused about your answer is,
4:43
is if we find that the Board just erred as a matter of law,
4:47
looking at their reasons for rejecting the combination,
4:51
and their reasons, assuming, I think,
4:54
that, you know, their reasoning of,
4:57
you wouldn't show how you would attach the,
5:00
I guess, the Bowman,
5:02
Global SLC to the Kappa Moto Snoop bus,
5:05
and that it didn't show improvements,
5:07
that we think both of those are just legally incorrect reasonings
5:10
on the known technique,
5:12
and given everything else in the record,
5:14
do we still have to send it back to the Board
5:17
for them to determine whether there's still a motivation to combine,
5:20
or is it that on the record,
5:23
when you have two references in the same field,
5:25
and it's a known technique to improve a device,
5:28
that there's enough to just reverse
5:30
and find a motivation to combine?
5:32
Appellant Attorney (Robert Alan Appleby)
So, in our view, given this record,
5:37
this court could find that as a matter of law,
5:43
that the substitution of a segmented second level cache
5:48
as a known alternative for individual second level caches
5:52
was obvious as a matter of law,
5:54
and could just reverse the Board at that point.
5:56
Okay.
5:57
If that answers your question.
5:58
Right.
5:59
Judge Hughes
I have a similar question on the interconnected issue.
6:02
Because I see there that the Board is,
6:06
even though there was no real construction,
6:08
they seem to have implicitly required
6:10
that somehow the interconnect system,
6:14
which you, and tell me if I've got the Board's theory
6:19
of your theory of the case incorrect,
6:21
because I have a feeling that the Board may have
6:22
done something that you don't agree with.
6:25
But it seems like the Board thinks that
6:27
you pointed to the Snoop bus from Kabamoto.
6:31
Snoop bus is a great example.
6:32
It's a great term, by the way.
6:34
I hate these computer things I hate,
6:36
but I love Snoop bus.
6:37
That you pointed to that as the interconnect system,
6:42
and that that doesn't show where the segmented caches
6:46
are interconnected, because that's in Bowman
6:49
and not in the Kabamoto Snoop bus.
6:52
And so, if we, and so it sounds to me
6:56
like the Board is saying the interconnect system
7:01
itself has to connect,
7:03
the segmented cache parts,
7:05
and that Kabamoto Snoop bus clearly doesn't,
7:09
because the Snoop bus is that one line,
7:12
and then the connections between the segments
7:15
in Bowman are done on something that's not the Snoop bus.
7:19
I'm sorry if that doesn't make any sense,
7:21
but it seems to me that essentially the Board's saying
7:23
the Snoop bus itself has to make direct connections
7:26
between the segmented global cache.
7:30
I mean, it's clear to me at least that Bowman
7:32
has connections between all the segmented stuff,
7:35
and when you connect it to the Snoop bus,
7:38
it's all connected.
7:39
But if the Board's construction of interconnect
7:42
requires direct interconnections by the interconnect system,
7:46
and Kabamoto's, the only interconnect system
7:50
is the Snoop bus,
7:51
then that doesn't necessarily show it.
7:53
If we disagree with the way the Board has construed
7:55
what interconnect system means,
7:58
or interconnectedness means,
8:00
and think it can be proven,
8:02
or broader, do we have to send that back?
8:04
Or is there any argument for the Board to make new findings
8:07
under kind of a more correct interpretation?
8:09
Appellant Attorney (Robert Alan Appleby)
So, and we outlined this in our brief,
8:12
we do believe that the evidence below was uncontested,
8:17
that through the combination using the Snoop bus
8:21
as an interconnect system,
8:22
it would meet the three relationships
8:27
that are required by the interconnect system of Claim 5.
8:31
To be quite candid,
8:32
I'm not exactly sure what the Board envisioned
8:37
was the difficulty here,
8:39
because it simply states in the final written decision
8:43
that it found the explanation inadequate.
8:47
But its reasoning is based on the belief
8:50
that the interconnect system was challenged by PAC below,
8:55
and that we had not responded to that argument,
8:58
which PAC now admits was not the case.
9:00
The combination of Kabamoto,
9:02
and Bauman,
9:03
the Snoop bus itself is a shared bus
9:06
that interconnects everything that's attached to it.
9:11
And in Kabamoto itself,
9:13
it interconnected processors to processors,
9:17
processors to caches, secondary caches,
9:20
and secondary caches to secondary caches.
9:23
In our proposed combination below,
9:26
we were just simply replacing those secondary caches
9:30
with the cache segments of Bauman,
9:32
and with everything being connected to the Snoop bus.
9:37
And that's made clear in our expert's declaration
9:42
at Appendix 935, Paragraph 135,
9:45
where the expert outlines that each of those segments
9:48
would be connected to the Snoop bus.
9:50
Judge Prost
I have the same concerns,
9:52
and I'm not sure you're really directly answering Judge Hughes.
9:56
I apologize if I missed every other question.
10:00
It's hard to get through a lot of questions,
10:02
and there are a lot of pieces of this case.
10:03
It's not just the technology.
10:05
It's kind of the arguments.
10:06
But I think maybe my analysis was like Judge Hughes.
10:11
The only way I could figure out
10:13
or try to make sense out of what the board said
10:16
with regard to Snoop bus
10:17
was to assume that it was requiring direct connection
10:21
and was not allowing for indirect connection.
10:25
So if that is the case,
10:28
and do we here say,
10:30
that's wrong, if that's what we believe,
10:33
that indirect connection was okay,
10:35
and if we reach that portion of it,
10:38
is there a reason to send it back to the board again,
10:42
or do we just say,
10:43
we agree with Intel.
10:45
The Snoop bus was what was connecting it.
10:48
We don't think that direct connection was required.
10:51
Full stop, end of story.
10:53
Appellant Attorney (Robert Alan Appleby)
So I would agree with that, Your Honor.
10:54
If this court would include that connection,
10:57
direct or indirect,
10:59
meets the interconnection system,
11:01
the three relationships of the system,
11:03
that's clearly shown in the two references,
11:06
because Kabamoto has the three relationships
11:09
if we look at cash to cash,
11:11
and Bauman expressly,
11:14
and there was no dispute about this below,
11:15
expressly shows cash segment to cash segment interconnection.
11:19
Judge Hughes
Well, here's where I think,
11:20
and maybe I'm just misreading the board decision,
11:23
and there's not going to be a disagreement
11:25
on the other side of this,
11:26
but what I'm reading the board's decision is saying,
11:29
the Snoop bus connects,
11:31
it has one line to the Bauman global SLC.
11:36
It doesn't have multiple lines from the Snoop bus
11:38
to each specific segmented cash,
11:41
and that's what the board required
11:43
for an interconnect system,
11:45
that it connects,
11:46
the system connects,
11:49
you know, piece to piece between the caches
11:51
by the Snoop bus,
11:54
and not just the Snoop bus
11:56
connected generally to the GL,
11:59
to the SLC,
11:59
and then within the SLC itself,
12:03
they're connected segment to segment.
12:04
Does that make sense?
12:06
I mean, that's my reading of the board's thing.
12:09
To me, that's what,
12:10
when I say I thought they required a direct connection
12:14
between the Snoop bus and each segmented cash,
12:16
that's how I read their opinion.
12:17
Clearly, the global SLC is connected segment to segment,
12:22
and once you connect it to the Snoop bus,
12:24
it's all interconnected.
12:25
That's the way data flow or whatever this is works,
12:28
I assume.
12:29
But if the board's reading of that
12:32
is what they meant by interconnect,
12:35
I mean, I assume you think that's wrong,
12:38
and if we think that's wrong,
12:40
and that indirect connections,
12:44
which is what this would be,
12:46
is good enough,
12:47
then I take,
12:49
I'm just trying to clarify again,
12:51
your answer is that if
12:52
you would not have a connection,
12:53
there's no dispute that this combination does it,
12:57
assuming we also find a motivation combined.
12:59
There would be no dispute that the combination...
13:01
Judge Newman
There's no dispute that the Snoop bus
13:03
is an interconnecting system.
13:06
It's just what kind of direct or indirect?
13:11
Appellant Attorney (Robert Alan Appleby)
There would be no dispute.
13:12
If indirect and direct connections satisfy,
13:15
there's no dispute that those three relationships
13:17
are satisfied through the combination
13:19
of Kauffman, Bono, and Bauman.
13:21
I believe that's answering your question.
13:24
So I believe if you find that indirect connections are okay,
13:28
then you do not need to...
13:30
Right.
13:30
If direct connections are required,
13:32
Judge Hughes
then there may be a problem.
13:34
You may have arguments on that,
13:36
but let's just assume that that's direct connections.
13:39
I don't think that's right,
13:40
but if it was,
13:41
there is a little bit more of a problem
13:43
about the Snoop bus providing a direct connection
13:46
to each segment.
13:49
Appellant Attorney (Robert Alan Appleby)
So let me preface that by saying,
13:51
if indirect connections are okay,
13:53
then there's absolutely no dispute
13:55
that everything's interconnected
13:57
in the way it needs to be in the claim.
13:59
Judge Prost
Did the other,
14:00
on this discussion,
14:01
just on this point,
14:02
staying on this point,
14:03
was PACT making the argument,
14:05
or was this something that the board,
14:06
on the Snoop bus stuff
14:08
and the interconnected stuff?
14:09
Was this an argument they adopted
14:11
the patent owner's argument,
14:13
or was this something they did on their own?
14:15
Appellant Attorney (Robert Alan Appleby)
So this was not an argument
14:16
that was raised by PACT below.
14:19
PACT never challenged
14:21
that the combination as we proposed it
14:25
would meet the interconnect system limitation.
14:28
Where the board, in my view,
14:30
was led astray is PACT below
14:33
on the issue of motivation to combine
14:36
posited two alternative combinations
14:39
under the argument that we believe,
14:42
this is PACT speaking,
14:44
that if one of ordinary skill in the art
14:47
combined these,
14:48
they would not combine them
14:49
in the way Intel had proposed,
14:51
but would combine in the way that,
14:55
in another way,
14:56
and there was two other ways.
14:57
For those two other ways,
14:59
PACT contested that the interconnect system
15:02
wouldn't be met.
15:03
That was why those alternative ways failed.
15:06
But PACT never made the argument
15:07
on our proposed combination
15:10
that it didn't meet
15:10
the interconnect system limitation,
15:13
and therefore also never made
15:15
this collective versus individual connection argument
15:18
that we've been discussing here.
15:20
Judge Newman
Okay.
15:21
Let's hear from the other side.
15:22
We'll save you a little time.
15:25
Mr. Weisburst.
15:26
Appellee Attorney (Sanford Ian Weisburst)
May it please the court,
15:27
Sanford Weisburst for appellee.
15:29
Thank you, Mr. Chairman.
15:30
I'd like to begin with this direct versus indirect question
15:32
because I think respectfully we're getting
15:34
a little bit ahead of ourselves
15:35
when we ask that question
15:36
because I think the question is whether the petition
15:38
articulated an indirect theory.
15:40
I think that's the first question
15:42
that this court should ask.
15:43
And the board found that it did not.
15:45
And at Appendix 797,
15:47
one of the judges,
15:48
Judge Barrett,
15:49
said in response to Intel raising this
15:53
so-called indirect theory,
15:54
I don't remember seeing that in your petition counsel.
15:57
And in fact,
15:59
if one looks at the petition,
16:00
at Appendix 216 to 217,
16:03
a couple of important points.
16:05
The only interconnect system that Intel pointed to
16:07
was the SNOOP bus.
16:09
Judge Prost
So is it your view that the board decided that issue
16:11
and said direct is necessary
16:14
and they didn't allege direct?
16:15
Did the board deal with that?
16:17
Appellee Attorney (Sanford Ian Weisburst)
Mr. What the board decided
16:18
was that the only theory in the petition
16:20
is one of connection to the SNOOP bus
16:24
and the internal data paths.
16:27
And this can be seen
16:28
on Appendix 216
16:29
and that there was never an articulation
16:31
of a theory of indirectness.
16:33
This sort of direct versus indirect
16:35
is perhaps shorthand
16:37
now that we're at oral argument
16:38
in the Federal Circuit.
16:39
But it was not something
16:41
that was argued in the petition.
16:42
What the petition argued is
16:44
let's take the SNOOP bus
16:45
and let's take,
16:46
there has to be under the claim
16:48
cash segment to cash segment.
16:50
Cabemotor doesn't have cash segments.
16:52
They're getting that entirely from Bauman.
16:53
And yet the petition did not say
16:56
that the SNOOP bus
16:57
somehow reaches up
16:59
and connects one segment
17:00
within the global SLC
17:01
to a neighboring segment.
17:02
Judge Prost
So can you point us
17:03
to where the board discussed
17:04
the SNOOP bus
17:05
and where they,
17:06
did they identify the deficiency
17:09
in the petition?
17:10
Mr. Yes.
17:11
Appellee Attorney (Sanford Ian Weisburst)
The relevant parts
17:12
of the final written decision
17:13
are in Appendix 19 through 21.
17:15
And specifically on 19
17:17
it starts with the first full paragraph
17:18
that the word petitioner next argues.
17:21
And it goes through 21.
17:23
And I think there's been some discussion,
17:24
well, PAC didn't make this argument.
17:26
And in all candor,
17:27
PAC did not make this precise argument.
17:29
PAC addressed a different combination
17:31
than Intel had proposed.
17:33
However, at these pages, 19 through 21
17:36
of the Appendix,
17:37
the board does not refer to
17:39
patent owners, PAC's arguments.
17:41
It addresses the petition
17:42
on its own merits
17:43
under this court's decision in FanDuel
17:46
that was within the board's power to do.
17:48
It can judge the petition
17:49
within its four corners
17:50
regardless of what the patent owner argues.
17:52
And, you know,
17:54
even though the board was not required
17:56
to give Intel even an opportunity
17:58
to address this deficiency,
18:00
the board did that at the hearing.
18:01
And that is at pages 774 and 797,
18:05
which I referred to earlier.
18:06
The board said,
18:07
look, I only see the SNOOP bus.
18:09
I don't see how that's connecting
18:10
cash segments to cash segments.
18:12
Please help me out, Intel.
18:13
And Intel then came up with this theory.
18:16
By the way,
18:16
it didn't refer to it
18:17
as expert's declaration,
18:18
which they talk about on appeal.
18:19
They only said,
18:20
well, there's this,
18:22
all of the cash segments
18:24
are somehow interconnected
18:25
with the SNOOP bus.
18:26
That's what they said
18:26
at the hearing at 797.
18:28
And Judge Barrett said...
18:29
Judge Hughes
Well, is there any dispute
18:30
that in Bulma
18:31
the segmented cash segments
18:34
are interconnected to each other?
18:36
Appellee Attorney (Sanford Ian Weisburst)
There is not.
18:36
But the key question is
18:38
what is doing that interconnection?
18:39
And in Appendix 216,
18:41
as we also explained in our brief,
18:42
it's internal data paths
18:44
that are highlighted in gold on 216.
18:46
That is what is accomplishing
18:47
the interconnection.
18:48
The SNOOP bus
18:49
and the proposed combination
18:50
is entirely outside of that.
18:53
It doesn't somehow sneak its way up
18:55
and do interconnections.
18:56
It connects to the whole global
18:58
second-level cash, certainly.
18:59
Judge Newman
I'm looking to see
19:00
where in the claim
19:02
that distinction is drawn,
19:04
and I don't see it.
19:06
Appellee Attorney (Sanford Ian Weisburst)
The distinction of cash segment
19:07
to cash segment?
19:08
Judge Newman
The direct and indirect.
19:12
Appellee Attorney (Sanford Ian Weisburst)
The claim language does not refer
19:14
to direct versus indirect,
19:15
but it does...
19:15
Judge Newman
Then why are we arguing about it?
19:17
Appellee Attorney (Sanford Ian Weisburst)
Because the claim language
19:19
does say an interconnect system
19:21
that connects, among other things,
19:23
a cash segment
19:24
to a neighboring cash segment.
19:25
That's the language
19:26
of the claim,
19:26
pages 108 to 109.
19:28
The question is...
19:30
Judge Hughes
Is the dispute here simply
19:31
that they didn't say
19:32
the interconnect system
19:33
is the SNOOP bus
19:35
attaching to Bowman,
19:37
which itself has interconnected
19:39
data segments?
19:40
Appellee Attorney (Sanford Ian Weisburst)
We might have a different case
19:42
if their petition...
19:43
Again, it has to be
19:44
on the petition.
19:45
The petition said,
19:46
we're not going to point
19:47
just to the...
19:47
Judge Hughes
Let's just assume
19:48
that I read the...
19:50
That's what the argument is.
19:51
What's wrong with that argument?
19:53
Because if the board
19:54
read that argument,
19:55
that way,
19:56
and still rejected it,
19:58
it would have to be
19:59
because there was
20:00
no direct connections,
20:01
because there's certainly
20:02
indirect connections.
20:07
Appellee Attorney (Sanford Ian Weisburst)
The...
20:09
Again, I don't believe...
20:11
I want to answer
20:12
your honest question.
20:13
Okay, I understand
20:13
Judge Hughes
you don't believe
20:14
that that's the argument
20:15
that their petition made.
20:16
Let's assume
20:17
that the interconnect system
20:19
is...
20:20
That disposes
20:21
all these elements
20:24
is a combination
20:25
of Kabamoto and Bowman
20:27
and Kabamoto has basically
20:29
everything except
20:31
the global SLC
20:32
and that Bowman has
20:35
segmented data caches
20:37
that are connected
20:38
to each other.
20:39
And by attaching that
20:41
to Kabamoto
20:42
or through the Snoop bus,
20:44
it has everything.
20:45
Right.
20:46
If that's their theory,
20:47
what's wrong with that?
20:48
Appellee Attorney (Sanford Ian Weisburst)
So, what's wrong
20:49
with that theory
20:50
is that we don't have
20:52
a motivation to combine.
20:53
And if I could turn to that...
20:53
Okay, no, but I...
20:54
That's a different issue.
20:55
Okay, sure.
20:56
Judge Hughes
I'm talking about
20:57
whether there's
20:57
substantial...
20:58
Assuming that...
21:00
Because I really do,
21:02
I don't see any other reason
21:04
the board could have
21:05
to reject this combination
21:09
and have an interconnect system
21:11
unless it's requiring
21:13
that there be
21:14
a direct connection
21:15
between the Snoop bus
21:17
and each of the segments.
21:19
And so, if indirect
21:22
can be good enough,
21:23
then there's no
21:24
substantial evidence
21:25
for the notion
21:27
that this combination
21:29
doesn't disclose everything.
21:31
Appellee Attorney (Sanford Ian Weisburst)
I would concede that
21:32
with the caveat
21:33
that we don't believe
21:34
the petition alleged
21:35
in indirect theory.
21:36
Judge Hughes
But I understand
21:37
you have arguments
21:38
about why you wouldn't
21:39
combine that.
21:39
Appellee Attorney (Sanford Ian Weisburst)
If I could turn
21:40
to the motivation to combine.
21:41
Now, the board,
21:42
after finding this deficiency
21:43
that we've been discussing,
21:45
went on to say,
21:46
even if Judge Hughes's
21:48
formulation is correct
21:49
with the petition,
21:50
here's why there's
21:51
no motivation to combine.
21:52
I'd like to address that point.
21:53
So, Kabamoto,
21:55
you've got these several
21:56
processor elements
21:57
in sequence.
21:58
Okay?
21:58
And you've got a cache
21:59
that's not a segmented cache.
22:01
It's just a cache.
22:02
So they need to go to Bauman
22:03
to get the cache segments.
22:06
And they rely mostly
22:09
on appeal
22:09
on this known technique idea.
22:11
And they throw in an argument
22:11
about KSR.
22:12
But really,
22:13
the question I'd like
22:14
the court to focus on
22:15
is what is the known technique?
22:17
They talk about, well,
22:18
segmenting a cache
22:19
into cache segments
22:20
instead of just
22:21
an unsegmented cache.
22:22
That's a known technique.
22:24
Everyone does it.
22:24
It's in Bauman.
22:25
It's well known in the art.
22:27
And so,
22:27
the problem is that
22:28
that doesn't get you
22:29
to the combination.
22:30
We'll grant Intel
22:32
that segmentation
22:33
is a known technique.
22:34
But what are they doing here?
22:36
They are taking
22:36
these three or four
22:38
processor elements
22:39
from Kabamoto.
22:40
They're taking the cache
22:41
outside of the processor element.
22:44
Okay?
22:44
It's 14-1 in the diagram.
22:46
They take it outside
22:47
the element.
22:48
Then they segment it.
22:50
And then,
22:50
on top of all that,
22:52
they connect it
22:52
to the snoot bus.
22:53
So all of those things
22:55
are part of the combination
22:56
that they are proposing.
22:57
And I don't think
22:58
there's a dispute
22:58
that that's what
22:59
they're proposing.
22:59
It's at Appendix 217.
23:01
The board quoted their petition.
23:02
So,
23:03
it's not enough
23:04
just to say,
23:05
well,
23:06
it's a known technique
23:07
to segment a cache.
23:08
Because this idea of...
23:09
Yeah,
23:09
Judge Prost
but can you look at what...
23:10
I'm looking at
23:11
what the board said
23:12
about that argument
23:13
on known technique.
23:15
And what the board said,
23:17
which I think
23:17
is not correct
23:19
under the law,
23:20
which is that
23:21
if this petitioner
23:22
argues
23:23
Kabamoto
23:24
already addresses
23:25
its problem
23:26
through the use
23:27
of a known technique
23:28
similar to that
23:29
of Bauman's,
23:30
we fail to see
23:31
why one of ordinary
23:32
skill in the art
23:33
would regard
23:34
Bauman's technique
23:34
as an obvious improvement
23:36
to Kabamoto.
23:37
Is that right?
23:38
Is that legally
23:39
sustainable?
23:40
Appellee Attorney (Sanford Ian Weisburst)
That is right
23:41
in response
23:42
to the specific
23:43
supposed known technique
23:44
of segmentation.
23:45
I think that was
23:46
what the board
23:47
was addressing.
23:47
And that's at Appendix 28.
23:48
So the board was saying,
23:49
look,
23:50
if the known technique
23:51
is let's segment the cache,
23:53
you could do that
23:54
within Kabamoto's structure.
23:55
You don't have to
23:56
do that.
23:56
It doesn't require
23:57
you to combine
23:58
this global second level cache.
23:59
You could just,
24:00
and in fact,
24:00
Intel suggests,
24:01
well,
24:01
Kabamoto has sublines
24:03
which sort of suggest
24:04
that you could segment.
24:05
Yes,
24:05
you could segment,
24:06
but you would do it
24:07
within Kabamoto's structure.
24:08
You wouldn't pull the cache
24:09
outside the processor elements
24:11
and you wouldn't connect it
24:12
to this new bus.
24:13
Now in Bauman...
24:14
Why?
24:14
Judge Prost
I mean,
24:14
I guess I'm trying
24:16
to understand
24:16
under KSR
24:17
and under our law,
24:18
the board admits
24:19
that the two address
24:20
the same problem.
24:22
Why isn't that
24:26
only two different references?
24:27
So they don't,
24:28
it's not an anticipation,
24:29
this is an anticipation case.
24:31
So because Kabamoto
24:33
addresses the same problem
24:35
differently,
24:35
why is that evidence
24:37
that there's no motivation
24:38
to combine?
24:39
Sure.
24:39
Appellee Attorney (Sanford Ian Weisburst)
So,
24:41
Bauman is not,
24:42
Bauman does involve,
24:43
does involve segmentation,
24:45
but it's focused on,
24:46
and the board found this,
24:48
focused on a different question,
24:49
which is separating
24:50
the cache segments
24:51
into instruction
24:51
and operand.
24:52
Instruction is sort of
24:53
the formula
24:54
and the operand
24:56
is the data
24:56
that you apply that to.
24:57
That is the focus
24:58
of Bauman.
24:59
But even more important
25:00
than that,
25:00
if you look at Bauman,
25:02
how is the global...
25:03
Judge Hughes
Are you saying
25:04
that Bauman
25:04
also doesn't show
25:06
that a global SLC
25:09
is a known technique
25:10
for maintaining
25:11
cache coherence?
25:13
Appellee Attorney (Sanford Ian Weisburst)
Yes.
25:14
Certainly,
25:15
certainly not
25:15
in connection
25:16
with a snoot bus
25:17
because there is
25:18
no snoot bus...
25:19
Judge Hughes
No, no, no, no, no.
25:19
That's not what they're,
25:20
they don't need
25:21
to get to Bauman
25:22
for the snoot bus.
25:23
The snoot bus
25:24
is in Kabamoto.
25:25
The question,
25:26
as I understand it,
25:27
is the issue here
25:29
is maintaining cache coherence
25:31
in multiprocessor systems.
25:33
Kabamoto does it one way.
25:35
Bauman's global SLC
25:37
is a different way
25:38
of maintaining
25:39
cache coherence.
25:40
If that's what they're
25:41
trying to get,
25:42
why isn't Bauman's technique
25:43
just another technique
25:45
of maintaining
25:45
cache coherence?
25:46
Appellee Attorney (Sanford Ian Weisburst)
Respectfully,
25:47
it is in part
25:48
cache coherence,
25:49
but it's not entirely
25:50
cache coherence.
25:50
There's another aspect
25:51
of this which is how...
25:52
Well, who cares
25:52
Judge Hughes
that there's other aspects?
25:55
There's a way
25:55
to maintain
25:56
cache coherence
25:57
by having a global SLC
26:00
versus separate caches.
26:02
Appellee Attorney (Sanford Ian Weisburst)
Here's the issue,
26:03
is that in order
26:04
for the cache
26:05
to have value
26:05
in the system,
26:06
the processors
26:07
need to be able
26:08
to get to it,
26:09
not just for cache coherence,
26:10
but actually to access
26:11
the data
26:12
and work on the data.
26:13
In Bauman,
26:15
the connection,
26:15
each processor
26:16
has its own connection.
26:18
There's no connection
26:19
between processors.
26:20
The processor
26:21
directly connects
26:22
to the second level cache.
26:23
In Kabamoto,
26:24
the processors
26:25
are all connected
26:26
to each other
26:27
via the snoop bus.
26:27
Judge Hughes
Are you saying
26:28
this shows it's inoperable,
26:29
this combination
26:30
would be inoperable?
26:32
Appellee Attorney (Sanford Ian Weisburst)
No, we're not...
26:32
Judge Hughes
So you're not making that...
26:34
Appellee Attorney (Sanford Ian Weisburst)
We're not making
26:34
that argument,
26:35
but what I think
26:35
the board was getting at
26:37
at Appendix 28
26:38
was the only known technique
26:40
that's been identified
26:41
is segment the cache.
26:43
But there's a lot more
26:44
to this combination
26:45
than that.
26:46
You're not only segmenting,
26:47
but you're also pulling
26:48
the cache
26:48
outside the processor
26:49
and then you're connecting
26:50
it to the snoop bus.
26:51
And Bauman does not
26:52
use a snoop bus.
26:53
When you introduce
26:54
a snoop bus to Bauman,
26:55
you introduce a question
26:57
of competition
26:58
among the processors
26:59
for access
27:00
to the global
27:01
second level cache.
27:02
Judge Hughes
But you're not saying
27:02
it won't work.
27:03
That's the problem.
27:04
I mean,
27:05
if it's inoperable,
27:07
there's no motivation
27:07
to combine.
27:08
But if it can accomplish
27:10
the goal,
27:11
even if it may be
27:12
not as efficient,
27:13
that doesn't mean
27:14
there's no motivation
27:15
to combine it, does it?
27:16
Haven't we said
27:17
that you don't have to show
27:18
that it's the best way
27:20
of doing it,
27:20
that it's just
27:21
a way of doing it?
27:22
Appellee Attorney (Sanford Ian Weisburst)
It doesn't have to be
27:23
the best way.
27:24
They did articulate
27:25
a theory that has...
27:26
I mean,
27:27
Judge Hughes
to show no motivation
27:28
to combine
27:29
on this argument,
27:29
don't you have to show
27:30
that it would be inoperable?
27:32
Appellee Attorney (Sanford Ian Weisburst)
No, I don't believe
27:33
that's our burden.
27:34
I think in terms
27:35
of a motivation
27:36
to combine,
27:37
we're not trying
27:38
to show it's inoperable.
27:39
What we're trying to show
27:39
is based on the evidence
27:41
in the record,
27:42
was there substantial evidence
27:43
to find that the benefits
27:44
of that combination
27:45
were outweighed
27:46
by the cost
27:47
of that combination?
27:48
And would a skilled
27:49
artisan come to that?
27:50
I believe
27:51
that's our burden,
27:52
and the word found
27:53
looking at all this,
27:54
it said, look...
27:55
Judge Prost
But you're saying
27:55
that their burden
27:56
for motivation
27:57
is to show
27:58
that the benefits
27:59
outweigh the cost?
28:00
I mean,
28:00
it doesn't have to be better,
28:02
right, under KSI?
28:03
No, it has to be something
28:04
that a skilled...
28:05
It doesn't have to be
28:05
the best.
28:06
Appellee Attorney (Sanford Ian Weisburst)
It has to be something
28:07
that a skilled artisan
28:07
would be motivated to do,
28:09
and I'd refer the court
28:10
to the Henny Penny decision,
28:12
which...
28:12
Judge Prost
So you're saying
28:13
that because it was costly
28:14
or it was difficult
28:15
or challenging,
28:18
then that destroys
28:19
the motivation
28:20
to combine?
28:21
What we're...
28:23
I mean,
28:23
we see motivation
28:24
to combine
28:25
different references
28:26
and different fields
28:27
of technology and stuff.
28:28
These all seem
28:29
very close
28:30
and very related
28:31
under the same umbrella, right?
28:33
It doesn't seem
28:34
a stretch
28:34
to be picking
28:35
and choosing
28:36
between Bowman
28:36
and Kawamoto, right?
28:38
Appellee Attorney (Sanford Ian Weisburst)
Well, again,
28:39
I think,
28:40
to the extent
28:40
reasonable people
28:41
could disagree,
28:42
which we think
28:42
is the case here,
28:43
that a skilled artisan
28:44
would be motivated,
28:46
taking into account
28:46
all of the circumstances
28:47
that the board
28:48
had substantial evidence
28:49
to make that finding.
28:53
I mean,
28:53
it's a similar field,
28:53
perhaps,
28:54
but Bowman
28:55
is using
28:56
an entirely different approach.
28:57
Okay?
28:58
It's got a global
28:59
second-level cash...
29:00
Judge Hughes
I mean,
29:00
here's the problem,
29:01
is if you look
29:02
at the board's decision
29:03
for rejecting it,
29:04
it rejects it
29:05
on what seems
29:05
to be improper grounds.
29:07
On 27,
29:08
it says,
29:09
well,
29:09
it doesn't actually
29:10
improve the thing.
29:11
And then on the bottom
29:12
of 27,
29:13
in 28,
29:14
it goes on
29:15
and describes
29:16
exactly
29:17
what I said
29:19
was the...
29:23
Subbing in
29:23
a global segment
29:25
in an SLC
29:26
for Kabamoto's
29:27
is just subbing
29:28
in a different
29:29
technique
29:30
to maintain
29:30
cash coherence.
29:31
And then on 28,
29:33
it says,
29:33
well,
29:34
Kabamoto already does that,
29:35
so you wouldn't need
29:36
to go to Bowman
29:37
for that.
29:37
But that's legally incorrect
29:39
under KSR 2.
29:40
So,
29:41
the problem is,
29:42
I understand
29:42
your argument,
29:43
but the arguments
29:44
that the board
29:45
has articulated here
29:46
don't seem to me
29:48
to be legally correct.
29:49
It's not a question
29:50
of substantial evidence.
29:51
They seem to be incorrect
29:52
under KSR
29:53
as requiring them
29:55
to show an improvement
29:56
or them to...
29:58
Or that the art...
30:01
The reference
30:01
they're teaching
30:02
already does this,
30:03
so why would you
30:03
go to another one?
30:05
We've rejected it,
30:06
particularly
30:06
that latter one
30:07
we've rejected
30:09
other times,
30:10
I'm pretty sure.
30:12
Appellee Attorney (Sanford Ian Weisburst)
So,
30:12
KSR does not
30:14
require an improvement.
30:15
I agree with that.
30:16
However,
30:16
if the petitioner
30:17
itself attempts
30:18
to allege
30:19
an improvement,
30:19
this court
30:20
and the ARctic Cat
30:21
decision
30:21
will not
30:21
support
30:21
that we cite
30:22
in our brief
30:22
says that it can hold
30:24
the petitioner
30:24
to that burden.
30:25
But the point
30:26
I'd like to end with here
30:28
is just that
30:28
it's not just
30:30
about segmentation.
30:31
It's about segmentation,
30:32
removing the cash
30:34
from the processor
30:34
and connecting it
30:35
to a SNOOP bus.
30:36
There's no SNOOP bus
30:37
in Bauman.
30:38
And because of
30:39
the obstacles there,
30:40
not that they're
30:41
physically inoperable,
30:42
but they are enough
30:43
that a skilled artisan
30:44
might hesitate
30:45
and not think
30:46
of that way
30:46
of achieving
30:47
the benefit of segmentation.
30:51
Judge Hughes
But the court
30:51
say that.
30:53
Appellee Attorney (Sanford Ian Weisburst)
The board
30:53
on
30:54
You're giving
30:54
Judge Hughes
a pretty good
30:56
articulation of
30:56
a basis.
30:57
I'm not sure
30:58
I agree with it,
30:59
but I didn't read
30:59
the board's opinion
31:00
anywhere saying that.
31:01
Appellee Attorney (Sanford Ian Weisburst)
So I read the board
31:02
in 27 to 28
31:03
to say that
31:04
it's not
31:05
That's what we just
31:05
looked at.
31:06
Yes.
31:06
Judge Hughes
It didn't say that though.
31:08
Appellee Attorney (Sanford Ian Weisburst)
I think
31:09
the board says
31:11
segmentation
31:11
is not all
31:12
that's going on here
31:13
and the board says
31:13
if you wanted
31:14
segmentation you would do in Kawamoto the board had other evidence and respectfully if the court
31:18
thinks that well the board didn't explain those other aspects enough I think the remedy would be
31:23
a remand as opposed to a reversal although again we would encourage the board to find that the
31:28
board had substantial evidence to find that the petition had a deficiency in its theory before
31:32
Judge Prost
you sit down I just have one more process sort of APA question I understood you as not contesting
31:38
one of their main arguments this is just on the process APA stuff which is that the board credited
31:45
your argument this is on the interconnected stuff as being your argument and they're adopting your
31:51
argument and it is that is incorrect in other words you didn't make the argument the board
31:57
came up with this argument and therefore at a minimum uh they didn't have an opportunity to
32:04
respond am I is that correct we agree that the board came up with the argument
32:08
Appellee Attorney (Sanford Ian Weisburst)
and did so without referring to the patent owner's filings that's at 19 to 21. we disagree
32:13
we disagree on two points one that the board had to provide an opportunity to respond but
32:17
in any event the board did provide an opportunity to respond at the hearing
32:21
Judge Prost
appendix 774 and 797 and intel but didn't the board give you credit for making the argument
32:29
that you did not make and that the board came up with I disagree with that um I think at appendix
32:34
Appellee Attorney (Sanford Ian Weisburst)
19 through 21 the board sets this argument out without any reference to the patent
32:38
Judge Newman
owner's filings thank you anything else for this council yeah thank you Mr. West first Mr. Appleby
32:50
Judge Hughes
thank you your honor can you go straight to the motivation and come on because I'm still
32:55
struggling a little bit about what we do with this case if we agree that the board's findings
33:01
at 27 and 28 are legally incorrect as a basis for finding no motivation to go by then
33:12
normally I would think that we would have to remand it for the board to make a determination
33:16
under the correct legal standard but I don't I mean once you get these two references in the
33:25
same field using very similar techniques and everything is there any substantial evidence
33:32
that would still support a finding of no motivation to combine I'm not aware of any your honor if we
33:39
Appellant Attorney (Robert Alan Appleby)
look at these references
33:42
both references directed to improving coherence mechanisms for caching their very similar
33:50
systems that use multi processors with private first level caches and secondary are second level
33:58
caches and the and the motivation combined here is drawn directly from that tight interrelationship
34:05
between these references in that a person of ordinary skill in the art would recognize that a
34:12
Unknown
あります
34:12
Appellant Attorney (Robert Alan Appleby)
shared, segmented second-level cash was a known alternative.
34:17
Judge Hughes
So then, I'm sorry to cut you off, but I get your argument on that.
34:21
It's helpful.
34:22
Can you address what your friend said about,
34:27
because I think he was reading the board's opinion at 27 and 28.
34:32
I mean, he was rewriting it to me in a way that made more sense.
34:36
But can you address that, that the problem here is not just subbing in
34:40
a Bauman's Global SLC for Kabamoto's separated caches,
34:47
but rather that it requires not just the subbing in of those two things,
34:52
but also using the Snoop bus, and because of the distance between the two,
34:57
that a skilled artisan would not combine them in this particular arrangement?
35:04
Appellant Attorney (Robert Alan Appleby)
Right.
35:05
So we would disagree with that.
35:07
A Snoop bus is simply a shared bus,
35:10
and it's called a Snoop bus because it snoops on caches.
35:14
It looks at transactions that move between caches and caches.
35:18
So a Snoop bus, which mutually interconnects everything that's connected to it,
35:24
would be the most natural place to place any caching mechanism.
35:28
So a person of ordinary skill in the art looking at Bauman with its shared second-level cache
35:35
and looking at Kabamoto that already interfaces its caches through,
35:40
a Snoop bus would have been naturally motivated to place that second-level cache on the Snoop bus.
35:45
I think the issue that in Bauman there's a particular one-to-one connection with the processors
35:51
is not material to that question because one of us skilled in the art would understand
35:56
that a shared bus makes those interconnections as well.
36:00
So this is really just a classic case of a known alternative, a shared second-level cache,
36:08
being a substitute for individual...
36:10
individual second-level caches, and this is a straight under the flexible and expansive analysis of KSR.
36:18
Judge Hughes
I mean, you would agree that if they had shown subbing in Bauman's SLC made Kabamoto inoperative,
36:26
that that would be a motivation not to combine.
36:31
I mean, I think he said that they weren't making that argument.
36:35
They weren't making that argument, and certainly...
36:36
But if combining two references would make it inoperable,
36:41
not that...
36:41
Not that it doesn't work better, but that it's just inoperable,
36:44
that's a finding against a motivation.
36:46
Appellant Attorney (Robert Alan Appleby)
Well, KSR itself says that if we're just rearranging known elements to yield predictable results,
36:52
that's obvious unless that's beyond the skill of one skilled in the art.
36:57
So I think if it was inoperable, you might put that in that basket.
37:01
Judge Prost
We've got cases that say that, that if it's inoperable, that could be a basis for rejecting motivation.
37:05
Appellant Attorney (Robert Alan Appleby)
Right, and I think that that's what KSR implies if you have...
37:09
You're just rearranging known elements.
37:13
That are doing the same function that they're already performing to yield predictable results.
37:18
It's obvious unless that was something that was beyond the skill of a person of ordinary skill in the art,
37:23
which inoperableness would, I think, would fall into that basket.
37:26
That is not the analysis that the board did.
37:28
The analysis the board did clearly looked for a teaching of an improvement
37:37
and looked for a requirement that the combination was actually improvement,
37:41
over known systems, which just contravenes many cases from this court's precedent,
37:49
including Intel versus Qualcomm, which simply says that the combination just needs to be a suitable alternative.
37:58
And with that, if the rest of the court has any other questions, I will...
38:02
Judge Newman
Anything else for counsel?
38:04
Anything else for counsel?
38:05
Thank you.
38:06
Thanks to both counsels.
38:07
This case is taken under submission.