RFCYBER CORP. v. SQUIRES
Oral Argument — 11/06/2025 · Case 24-1614 · 11:41
0:00
Judge Lourie
Our next case is RF Cyber Corporation versus the Undersecretary of Commerce, 2024-16-14.
0:10
Mr. Cowell.
0:11
Appellant Attorney (Richard Matthew Cowell)
May it please the Court, Richard Cowell for Appellant RF Cyber.
0:15
The issue before the Court today is whether the Board erred in PTAB proceedings below
0:20
in allowing Petitioner Apple to change its petition in its reply
0:25
to point to a different structure as satisfying a claim element.
0:29
In this petition, Apple pointed to the operating system of the Buho reference
0:35
as satisfying the emulator device limitation.
0:39
There was an agreed-upon disruption that Apple proposed
0:42
that an emulator device is a hardware device alone or containing software
0:46
that pretends to be another device or program that other components expect to interact with.
0:53
Judge Stoll
I have a question for you.
0:55
On page A131, I think that's the petition,
1:00
under the figure it says,
1:02
a PASIDA would have understood that Operating System 314 running on Processor 400
1:08
is an emulator device because it is a hardware device or program that executes NFC applications.
1:17
Why isn't that sufficient for the Board's conclusion here
1:22
that the petition didn't just point to the Operating System 314,
1:27
it was pointing to the Operating System.
1:33
Appellant Attorney (Richard Matthew Cowell)
There's a few reasons for that, Your Honor.
1:35
First, that statement itself, I think, illustrates the issue here.
1:40
The statement says,
1:41
the operating system running on Processor is an emulator device
1:45
because it is a hardware device or program that executes NFC applications.
1:49
That or program broadens the agreed-upon construction beyond just hardware device.
1:56
Appellant Attorney (Richard Matthew Cowell)
But it does say running on Processor 400 before that.
1:59
Appellant Attorney (Richard Matthew Cowell)
It does say running on Processor.
2:00
It does not, it never says that the processor, however, is the emulator device.
2:09
It's the operating system.
2:10
That's what they point to.
2:12
Judge Stoll
What standard of review do we apply to determine whether the Board erred in its reading of a petition?
2:20
Appellant Attorney (Richard Matthew Cowell)
Whether the ground is new is the no, though.
2:23
Whether the Board erred in understanding the petition, I believe, is abusive discretion.
2:29
Appellant Attorney (Richard Matthew Cowell)
Would a skilled artisan know that operating systems,
2:32
whether the software runs on a processor?
2:35
Yes.
2:35
Appellant Attorney (Richard Matthew Cowell)
The issue, however, so our cyber sought to dispel any confusion
2:51
and, in fact, deposed Petitioner's expert
2:55
and asked him flat out what was the emulator device.
2:59
And he stated it was the operating system.
3:02
And the question was, is there anything else?
3:05
I'm not quoting exactly, but the question was essentially,
3:07
is there anything else you're identifying as an emulator device?
3:10
And he said no.
3:12
Judge Stoll
Didn't you say, without reading my data,
3:14
that there was no declaration in detail?
3:15
I think that's what it is.
3:17
Appellant Attorney (Richard Matthew Cowell)
He said something to that effect.
3:19
He had the declaration in front of him.
3:21
He was pointed to the exact paragraph which was being discussed.
3:25
You can see that in Appendix 3092.
3:28
And I don't think the expert's lack of familiarity with his own testimony
3:35
renders his cross-examination testimony irrelevant.
3:39
He should have known.
3:40
Judge Stoll
It might not be irrelevant, but it's hard to say it's a full admission, maybe.
3:44
I mean, or not.
3:44
Or at least the board could.
3:46
The question would be whether the board abused its discretion by reading it that way.
3:53
Appellant Attorney (Richard Matthew Cowell)
I don't even recall if the board relied on that deposition testimony.
3:57
I believe the director does in his brief.
4:00
Judge Stoll
What about the next page in the appendix where he says,
4:03
an operating system, as I understand it, is a program that runs on a processor?
4:09
Appellant Attorney (Richard Matthew Cowell)
That's not in dispute that an operating system runs on a processor.
4:13
However, they didn't, again, Apple didn't point to the processor as the emulator,
4:17
they didn't explain how the processor was emulating anything.
4:22
It was the operating system, and indeed the operating system,
4:26
after it loaded certain applications, they said was emulating.
4:31
Judge Stoll
Did the expert in his declaration refer to both the software and the hardware,
4:38
that is, the operating system running on the processor 400 as the emulator?
4:42
Appellant Attorney (Richard Matthew Cowell)
I believe the expert parroted the exact statements from the petitioner.
4:46
So he does say,
4:48
an operating system running on a processor.
5:01
Judge Stoll
What about, I think, page 1647, paragraph 86, it says,
5:08
I think this is his declaration,
5:10
a Positas would have understood that processor 400 executing operating system 314
5:15
facilitates the emulation functionality discussed above,
5:21
and then thus a Positas would have understood that operating system 314
5:26
storing the memory of processor 400 is an emulator device.
5:31
Why isn't that identifying both of them?
5:36
Appellant Attorney (Richard Matthew Cowell)
Because, again, the object of that sentence is the operating system.
5:40
It's saying, okay, it's stored in this particular area.
5:44
And, in fact, it doesn't even explain...
5:46
Judge Stoll
What about the first sentence of paragraph 86?
5:48
Appellant Attorney (Richard Matthew Cowell)
Right, it says, and there it doesn't even explain that,
5:55
it doesn't even explain how the processor in that case is pretending to be another device.
6:07
It says...
6:08
In fact, it says it facilitates the emulation functionality.
6:11
Facilitates is a very broad statement.
6:15
It just means helps or makes it possible.
6:17
It's not actually performing that functionality.
6:26
When the board allowed Apple to repair its petition on its reply,
6:31
it puts our cyber into a bind, as any patent owner is in this case.
6:38
The patent owner should be allowed to rely on what's in the petition
6:41
to craft its arguments.
6:43
When, on reply, Apple or any petitioner
6:46
is able to change the structure to which it's pointing for for an element,
6:51
suddenly, first of all, it's crafted its reply
6:53
to avoid the arguments in the patent owner response.
6:56
And then the patent owner is left only with the sur-reply to respond,
7:00
which is usually under a much shorter deadline
7:03
and is not, as a matter of the rules,
7:05
allowed to include further evidence
7:08
other than a deposition transcript of the expert.
7:10
Appellant Attorney (Richard Matthew Cowell)
Well, the intervener responds to that
7:14
by saying that there's authority that allows...
7:17
the board to permit patent owners
7:19
to submit expert declarations with their sur-replies
7:21
when a reply allegedly raises a new question.
7:24
And they cite Apple versus Messina for that,
7:27
and they say that you didn't seek leave to file a declaration,
7:30
and not having done so,
7:32
you can't now complain that you were denied that opportunity.
7:35
How do you respond to that?
7:36
Appellant Attorney (Richard Matthew Cowell)
I think, in that case,
7:38
asking the board to suspend its own rules
7:40
has to be considered as an extraordinary relief.
7:42
It's certainly not the ordinary course.
7:44
And by requiring a patent owner to do that,
7:47
in every case,
7:47
you're elevating what should be extraordinary relief
7:49
to the ordinary course of business.
7:52
And it does not deal with the fact
7:54
that the time limit is now severely shorter.
7:59
In this case, it was down to 14 days.
8:01
And it does not also address the problem
8:04
with the lack of crystallization
8:07
of petitioner's theory and its petition.
8:12
In other words, petitioner can still,
8:14
even if we're allowed to put in a declaration later,
8:17
petitioner can still shift
8:18
its arguments to avoid the patent owner response,
8:21
leaving the patent owner to try to address it
8:23
in the first place in the survey reply
8:24
under a shortened timeline.
8:27
Appellant Attorney (Richard Matthew Cowell)
So are you saying that if you are genuinely surprised
8:33
by what is said in the reply,
8:35
that there really is no procedural safeguard for you?
8:39
Appellant Attorney (Richard Matthew Cowell)
I don't believe there's an effective procedural safeguard.
8:42
I think that's a problem at the initial of this,
8:44
is that by being vague in its petition,
8:48
the petitioner is allowed, then,
8:50
to subtly shift its arguments over
8:53
to avoid the patent owner response.
8:54
In this case, by identifying a new structure
8:56
to meet a claim limitation.
9:07
Judge Stoll
And just to be clear, that new structure,
9:09
as you call it, is Processor 400?
9:12
Appellant Attorney (Richard Matthew Cowell)
Correct.
9:13
Judge Stoll
With the operating system 314?
9:15
Appellant Attorney (Richard Matthew Cowell)
Correct.
9:16
The court has no other questions.
9:21
Judge Lourie
We will save you a little time.
9:24
Appellant Attorney (Richard Matthew Cowell)
Yes, sir. Thank you, Your Honor.
9:27
Judge Lourie
Mr. Amin.
9:28
Intervenor Attorney (Omar Farooq Amin)
Good morning, Your Honors.
9:40
I may please the court.
9:41
In our view, the petition clearly identifies
9:44
operating system 314 running on Processor 400
9:48
at Appendix 131 as being the emulator device.
9:52
RF Cyber acknowledged as much in its preliminary response
9:55
when it quoted that contention as characterizing
9:58
what Apple was contending was the emulator device.
10:01
And the board's final written decision
10:03
directly tracks that contention
10:05
in describing its finding as to the emulator device.
10:08
So we see no basis in this record to contend,
10:11
unfair surprise, nor any reason to think
10:13
that there was any sort of,
10:14
procedural error in terms of how the board
10:17
resolved the emulator device limitation.
10:25
Unless the court has any further questions for me,
10:28
we would ask that the court confirm.
10:30
I'm happy to see the rest of my time.
10:32
Judge Lourie
No one ever loses points by giving up time.
10:37
Appellant Attorney (Richard Matthew Cowell)
Thank you, Your Honor.
10:38
Judge Lourie
We rely on your briefs.
10:40
Mr. Cowell.
10:42
Appellant Attorney (Richard Matthew Cowell)
You're welcome.
10:46
To address the one point that counsel made,
10:53
the POPR, which he's speaking of,
10:55
there's no discussion saying,
10:57
oh, they're saying the processor is the emulator device.
11:02
Here's why the processor can't meet that.
11:04
What it is is a block quote of the petition.
11:07
Nobody's denying that the language operating system
11:10
running on the processor 400 is in the petition.
11:13
But the POPR addresses the petition,
11:16
quotes it, and then presents a different argument,
11:19
not based on whether it's a hardware device or not.
11:21
So I don't think the POPR is relevant
11:24
to any issue before this court.
11:29
That being the only argument,
11:31
if the court doesn't have anything,
11:32
I would ask that the court reverse,
11:34
as there's no dispute that an operating system alone
11:36
cannot meet this limitation.
11:38
Judge Lourie
Thank you to both counsel and cases submitted.