Page 16
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` Entered: February 27, 2014
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`RECORD OF ORAL HEARING
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
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`ABB, INC.,
`
`Petitioner
`
`V.
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`ROY-G-BIV CORP.,
`
`Patent Owner
`
`____________
`
`Case IPR2013-00062 and IPR2013-00282
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`Patent U.S. 6,516,236
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` Case IPR2013-00074 and IPR2013-00286
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`
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`Patent U.S. 8,073,557
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`___________________
`
`Oral Hearing Held January 23, 2014
`
`____________
`
`Before THOMAS L. GIANNETTI, JENNIFER S. BISK, and JEREMY M.
`PLENZLER (VIA VIDEO HOOKUP), Administrative Patent Judges.
`
`
`
`
` Entered: February 27, 2014
`
`RECORD OF ORAL HEARING
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
`
`ABB, INC.,
`
`Petitioner
`
`V.
`
`ROY-G-BIV CORP.,
`
`Patent Owner
`
`____________
`
`Case IPR2013-00062 and IPR2013-00282
`
`Patent U.S. 6,516,236
`
` Case IPR2013-00074 and IPR2013-00286
`
`
`
`Patent U.S. 8,073,557
`
`___________________
`
`Oral Hearing Held January 23, 2014
`
`____________
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`Before THOMAS L. GIANNETTI, JENNIFER S. BISK, and JEREMY M.
`PLENZLER (VIA VIDEO HOOKUP), Administrative Patent Judges.
`
`
`
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
`Patents 6,516,236 & 8,073,557
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`RICK MC LEOD
`Klarquist Sparkman, LLP
`One World Trade Center
`121 S.W. Salmon Street, Suite 1600
`Portland, OR 97204-2988
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`
`
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`ON BEHALF OF THE PATENT OWNER:
`RICHARD BLACK
`ROY-G-BIV Corporation
`154 E Bingen Point Way
`Bingen, Washington 98605
`
`
`
`
`The above-entitled matter came on for hearing on Thursday, January
`23, 2014 commencing at 1:00 p.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
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`JUDGE GIANNETTI: So we are here for our final hearing in
`two IPR matters, Inter Partes Reviews, IPR 2013-00062 and IPR
`2013-00074.
`I'm Judge Giannetti. This is Judge Bisk. And Judge Plenzler
`is appearing remotely from Detroit on the screen. This is the first hearing I
`have had with a remote judge. I understand our equipment has been
`working very well, and let's keep our fingers crossed that it continues to do
`that.
`
`All right. So may I have appearances of counsel first for the
`
`Petitioner?
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
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`MR. MCLEOD: Rick McLeod, Your Honor. I have with me
`Robert Nupp, the in-house counsel for ABB.
`JUDGE GIANNETTI: I'm sorry, the second name was?
`MR. MCLEOD: Robert Nupp.
`MR. NUPP: Robert Nupp.
`JUDGE GIANNETTI: Welcome. And for the Patent Owner?
`MR. BLACK: Thank you. Good afternoon,
`Your Honors. This is Richard Black on behalf of Patent
`Owner ROY-G-BIV. I have with me backup counsel Richard Meyer and
`backup counsel Doug Wilson and also (indiscernible) Dave Brown.
`JUDGE GIANNETTI: Welcome. All right. So the ground
`rules are here that each side has one hour to present argument. You may
`divide argument as you wish. The Petitioner may -- will go first and may
`reserve rebuttal time. Let me know at the beginning of the argument how
`much time you are reserving.
`Okay. Any questions before we begin?
`(No response.)
`JUDGE GIANNETTI: Okay. Mr. McLeod, you may proceed
`when you're ready.
`MR. MCLEOD: Thank you, Your Honor. I'd like to reserve
`25 minutes for rebuttal if I may?
`JUDGE GIANNETTI: Okay. So that's 1:35. You have until
`1:35. And I'll try to give you five minutes notice towards the end.
`MR. MCLEOD: Thank you. I have (indiscernible) slides for
`the panel, if they would like them.
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
`Patents 6,516,236 & 8,073,557
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`JUDGE GIANNETTI: Please.
`MR. MCLEOD: Judge Plenzler, I apologize. I haven't quite
`technologically figured out how to deliver those to Detroit yet.
`JUDGE GIANNETTI: We've got your demonstratives in
`advance, so I believe Judge Plenzler has access to them.
`MR. MCLEOD: May it please the Board, the claims of the
`'236 and '557 Patents are unpatentable for the reasons that have been given
`in our petition. If you'll turn to page 2 of our slides, we've summarized the
`grounds for trial for which the Board has instituted this proceeding.
`One thing is clear, the Gertz thesis, the Stewart thesis and the
`Morrow paper are the central basis for each of the grounds of rejection.
`Some additional references address a few items of independent claims from
`the merged '282 and '286 Patents.
`Slide 3, we summarize what we believe to be RGB's central
`arguments in their response. As to specific claim terms, component
`functions, component code, driver functions, they tend to argue that
`functions must mean executable code, although executable code does not
`appear in any claim construction.
`They asserted that primitive operations are not taught by Gertz,
`however we note that they didn't challenge that Morrow taught trajectory
`primitives, which the Board found in its order instituting trial, that the
`combination of the trajectory primitives and Morrow with the teachings of
`Gertz would disclose primitive operation.
`They had some arguments in their response regarding the
`function pointer table, which we took directly from their infringement
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
`Patents 6,516,236 & 8,073,557
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`contentions and pointed how that was contained in a prior reference. And
`then there is a brief argument about the -- not being able to write control
`commands to a file in the UNIX system and they have this argument that
`Gertz and Morrow are not prior art, which we explain that's just not true.
`And then there are some arguments that it’s somehow impossible to combine
`the prior art.
`Looking at page four, the disputed claim terms that are
`generally listed in their responses are listed. The first place I would like to
`start with this is claim construction, Slide 5.
`Now as we know, this is an IPR. We use the broadest
`reasonable interpretation standard. In our petition, or actually in the order
`instituting trial, the Board adopted our proposed constructions with the
`exception of two. And RGB's response, they argue that, well, there’s a --
`these should be construed more narrowly. They should be construed more
`narrowly because in the joint claim construction statement submitted in
`district court, ABB supposedly agreed to certain narrower constructions.
`And that is not a canon of claim construction, certainly not for the broadest
`reasonable interpretation.
`They didn't cite any legal authority for this narrowing. They
`didn't cite any intrinsic evidence, and Dr. Stewart, in fact, didn't give any
`basis for taking a narrow interpretation. In fact, his declaration often says,
`"I've read the definition in the patent or I adopted the definition from the
`joint claim construction statement." When asked if he was a patent law
`expert, he said no. He simply adopted what was selected for him.
`Turning to page 6, we look at primitive operations. In the
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
`Patents 6,516,236 & 8,073,557
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`institution decision, the Board held that the Patent Owner had been his own
`lexicographer and had defined this term specially in the patents. The district
`court disagreed. The District court had not just the benefit of the Board's
`decision, but the Board's briefing, a declaration from Mr. Brown, a -- I don't
`know how many hours long claim construction hearing, and found that that
`was simply not the case, and adopted a broader definition than the Board has
`adopted herein.
`Now as we state -- as we cite White v. Dunbar from 1886, this
`leads to a conundrum. The Patent Owner -- if the Board were to stick with
`its construction, the Board would be giving the benefit of the -- to the Patent
`Owner of a narrower construction for the purposes of invalidity or
`unpatentability than would be used in the district court.
`JUDGE GIANNETTI: Counsel, isn't the standard broadest
`reasonable interpretation in light of the specification?
`MR. MCLEOD: It is, Your Honor.
`JUDGE GIANNETTI: And doesn't the specification say,
`column 7, "Primitive operations are operations that are necessary for motion
`control and cannot be simulated using a combination of other motion control
`operations." Isn't that definition of what primitive operation is?
`MR. MCLEOD: Your Honor, as we stated in our motion for
`reconsideration, there are inconsistent areas in the specification. At the time,
`Judge Bisk wrote an opinion saying that we hadn't shown that that was -- the
`portions that we cited to, that is the recitation of MoveAbsolute being a
`primitive operation and MoveRelative being a non-primitive operation if you
`will, or being simulatable by other things, we haven't proven that was a
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
`Patents 6,516,236 & 8,073,557
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`typographical error. At the time, we did not have access that is when I say
`"we" I refer to myself, of this WOSA/XMC specification, that the Patent
`Owner submitted claiming prior invention. If you look at this WOSA/XMC
`specification, specifically pages 18 to 20, he has a two-page recitation on
`why MoveAbsolute can't be decomposed and why MoveRelative can be
`emulated using other functions.
`JUDGE BISK: Excuse me. Isn't that extrinsic evidence?
`Why would we use that to override the explicit definition in the patent?
`MR. MCLEOD: Well, again, Your Honor, this is a
`disagreement between the Board and the district court. The Board views it
`as an express definition. The court found that it was not.
`I think the biggest problem is that if the Board holds to its
`position, we will run into a case similar to what occurred in Soverain v.
`Newegg, Soverain Software v. Amazon.com. In that case, the Board, you
`know, adopted a broad construction of claim terms.
`The Patent Office, in re-examination, adopted a narrow
`construction and affirmed the claims. Soverain went on to sue other entities
`until in Soverain v. Newegg the Federal Circuit held as a matter of law that
`under that broad construction the claims were invalid. During that time,
`Soverain collected a great deal of royalties. They obtained a couple of jury
`verdicts, I believe. That's the conundrum that concerns me the most. That is
`the thing that would be violated in terms of White v. Dunbar.
`JUDGE GIANNETTI: You still haven't told us how we get
`around the statement in the specification.
`MR. MCLEOD: Your Honor, the inconsistent -- well, the
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
`Patents 6,516,236 & 8,073,557
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`first -- the statement isn't definitional. If we assume that it's definitional, it
`would lead to an indefiniteness problem.
`Judge Hawthorne, he recognized this when -- during the
`Markman hearing. He recognized it in saying, well, you're saying something
`is necessary for motion control. How could I possibly know what that is? I
`don't understand what that is.
`He also noted that the subsequent statement, if you will, that
`MoveRelative is an example of a primitive operation, he said that can't be
`right. When I say can't be right, I believe his expressed words were, "I'm not
`convinced that some clever engineer could not implement a MoveRelative
`operation using other operations."
`Why would he say that? Well, for one thing, in the HP86
`reference which we cited, there is a section that says -- it has throughout it
`both absolute and relative versions of the command.
`JUDGE GIANNETTI: Just to go back. So your answer would
`be that the reason we cannot accept that definition is because it would make
`the claim indefinite?
`MR. MCLEOD: That's one reason. The other reason is that
`there is, in this Appendix A, which we've pointed to in our request for
`reconsideration, this classification of MoveAbsolute as being core, that it
`can't be broken down, emulated, and MoveRelative being non-core or
`extended. We cited that in our motion for reconsideration.
`JUDGE BISK: What about the independent claim in the -- in
`the '236 Patent that actually uses those words in the claim? So even if we
`did go --
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
`Patents 6,516,236 & 8,073,557
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`MR. MCLEOD: Well, if you were to define primitive
`operation to mean that, then those words become superfluous.
`JUDGE BISK: Right, but what if we went with your
`definition? What happens to those words in that claim?
`MR. MCLEOD: If you went with my definition, then you
`would give meaning to any words saying that it's necessary for motion
`control in the claim, but you wouldn't tie that to primitive operation per se.
`JUDGE BISK: But those words still have meaning in the
`claim? Or are you saying we wouldn't read those out of that claim, as well?
`MR. MCLEOD: No, you wouldn't read those words out of the
`claim, no, but you would read them out of the definition of primitive
`operation.
`
`JUDGE GIANNETTI: As I recall the district court decision,
`it said the term has an ordinary meaning, therefore there was no need for --
`to look to what the specification said. In other words, because they had an
`ordinary meaning, we didn't need a definition from the -- from the inventor
`as to what it means, something like that. I believe that was the rationale.
`Do you have any case law that might support that theory?
`MR. MCLEOD: The claim is to be given its ordinary
`meaning unless expressly defined?
`JUDGE GIANNETTI: No, that because the claim has its
`ordinary meaning, there's no need to look to what the inventor defines as the
`meaning.
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`MR. MCLEOD: I don't off the top my head, Your Honor.
`JUDGE GIANNETTI: I don't recall the district court citing
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
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`any authority for that either. It was the magistrate's decision, if I'm not
`mistaken. It was the magistrate's decision that was later affirmed by the
`District court judge.
`MR. MCLEOD: And if I -- I should point out,
`Your Honor, RGB -- ABB specifically sought reconsideration to get the
`court to adopt the Board's construction so there wouldn't be this
`inconsistency. The district court held no, that's not correct. RGB opposed.
`They filed a motion saying you can't do that. They literally said, you can't
`provide this broader construction in the district court just because the Board
`adopted it.
`
`JUDGE GIANNETTI: Maybe somebody can point us to
`some authority that would support the district court's theory as to why the
`definition that I pointed to in the specification shouldn't be valid. I'll invite
`you to do that during this argument.
`MR. MCLEOD: I'll see if I can come up with something.
`JUDGE GIANNETTI: That would be helpful.
`MR. MCLEOD: Part of the district court's reasoning was also
`to -- when it said remove this area of indefiniteness, if you will, was to make
`it clear that any given motion control operation under his construction would
`easily fall within one of the two bins, if you will. It would either be a
`primitive operation or a non-primitive operation. You would simply look to
`the operation saying is it decomposable into other operations that are
`present? Mr. Corish, RGB's counsel, agreed. Under your construction, we
`agree that all motion control operations would fall into one of the two bins
`and thus the court adopted its definition for primitive and non-primitive.
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
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`When it comes to component code, Slide 8, the PTAB --
`Board adopted a construction of computer code, which associates the district
`court used software code in the motion control component. The district
`court added additional limitations that are not present in the Board's
`construction.
`Dr. Stewart, I believe, used the software code in his
`declaration. He did not refer to the PTAB's construction in his declaration,
`and that's one of the problems we have with him. Component function of
`Slide 9, comparing the --
`JUDGE BISK: Can I ask a quick question on the last one?
`MR. MCLEOD: Yes, Your Honor.
`JUDGE BISK: Is there a difference between computer code
`and software code?
`MR. MCLEOD: I believe there is, Your Honor.
`JUDGE BISK: And what is that?
`MR. MCLEOD: Computer code could generally refer to any
`-- for example, if I may, the Microsoft registry. The registry itself stores
`data. If we look into the '236 Patent, they talk about using Microsoft Excel
`to store data in its cells. That is not executable code. It's configuration data.
`One of our disputes here is whether component code can be
`data as computer code -- anything that actually encodes information is
`computer code. Software can be viewed broadly by some persons to include
`all of that information as well as, it's often used, anything that isn't hardware
`is software. But there are others who often say that software refers to either
`source code or object code.
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
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`JUDGE BISK: All right.
`MR. MCLEOD: Some people say that software includes not
`just the code, but also databases.
`JUDGE BISK: I would say that they are both kind of
`amorphous words.
`JUDGE GIANNETTI: Let me suggest something. Computer
`code is broader because it encompasses coding that may be hardwired,
`whereas software is something that is not hardwired.
`MR. MCLEOD: Yes, Your Honor, I agree with you. It could
`include firmware or something that's hardcoded into a PROM or a ROM,
`and that is also potential distinction. But as we get deeper into this, we'll see
`that their major distinction appears to be this idea of what is executable and
`what is not.
`
`And their contention is that executable in its narrowest
`definition refers to machine language instructions that would be executable
`in a processor. That can't be what the patent is referring to, because it says
`these are hardware independent.
`There is one thing that I'm certain of is that machine language
`is not hardware independent. By definition, machine language is dependent
`on the CPU that it is executing upon.
`JUDGE GIANNETTI: Just focus for a minute on the -- on the
`term that both of these definitions have in common, which is the word code.
`Would you agree with me that code suggests a set of instructions, whether
`it's object code or some other type of code. It's still a set of instructions to a
`machine?
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`MR. MCLEOD: It certainly encompasses a set of instructions
`to a machine.
`JUDGE GIANNETTI: What else does it encompass?
`MR. MCLEOD: Well, for instance, a UNIX script is not a set
`of instructions as it would be understood as machine language instruction. It
`might be a set of commands, UNIX commands, or other references but they
`are not executable in the sense that they are not executed in the processor.
`JUDGE GIANNETTI: Well, they would be translated and
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`executed.
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`MR. MCLEOD: They can be interpreted.
`JUDGE GIANNETTI: Interpreted.
`MR. MCLEOD: Absolutely. And our position is that that's
`what's included. Our position is that Gertz teaches an iconic programming
`language that produces a program that is actually interpreted and executed
`on that machine.
`JUDGE GIANNETTI: So let me just interrupt you again. So
`when someone, one of the high-tech companies out on the West Coast is
`writing a computer program in some high level language, you said that that's
`not code because it's not executable?
`MR. MCLEOD: No, Your Honor. That's not my position. I
`believe that is their position.
`JUDGE GIANNETTI: We'll come back to it then.
`MR. MCLEOD: Turning to Slide 10, the present invention as
`relates to motion control systems, particularly the part that I want to focus on
`is hardware independent motion control software. Hardware independent is
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`perhaps fundamental to what -- what is going on in the Gertz and Stewart
`and other references.
`The patent also states the WOSA model has no relation to
`motion control devices. This was something that was raised earlier in the
`proceeding prior to RGB coming out with this document entitled
`"WOSA/XMC." If it indeed had no relationship to motion control devices, I
`don't see how a document titled "WOSA/XMC" could be related to the
`claims.
`
`Page 11 contains Figure 1 of the Gertz thesis. This is more or
`less the core framework of Onika and Chimera. Just below "user,” the thing
`that you see is an iconic programming language. Dr. Stewart disputed the
`fact that there was any programming. There was any -- I'm sorry. I don't
`want to say programming. He said it was a programming environment and
`that was it. Despite the fact that on page -- pages 29 and 30, Gertz says it's a
`programming simulation and execution environment. He refused to
`acknowledge that.
`At the very top, we have the hardware independent iconic --
`JUDGE GIANNETTI: Is the cite page 36 of the Gertz?
`MR. MCLEOD: 29. Begins at 29 and continues through 30.
`A hardware -- I'm sorry. I believe from what I've been able to gather from
`my opponents, there is an assertion that there is no actual language. There is
`no programming language in Gertz. Dr. Stewart said that Gertz doesn't
`teach programming lines of code.
`On page 21 of the Gertz thesis, he states that he provides an
`iconic programming language that is complete, syntactically complete, with
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`respect to a conventional textual robotic programming language.
`JUDGE BISK: Can you say what page of Gertz?
`MR. MCLEOD: It’s 21, I believe. He also describes the
`programming language. I believe it's page 52. But I think that -- 21, I'm
`sorry. 51 -- 22, it's page 22. He also discusses this again at page 51, the idea
`that this is an actual programming language and that the language is
`composed, that is the major components of the language are these actions.
`These are the functions that people can call. And it has syntactical
`connectors that provide conditional execution, iteration, basically everything
`that constitutes an executable program. And it actually executes this on the
`processor where the Onika software is running.
`Below that, we have the actions. The actions are the things
`that we have identified as component function. We have a configuration
`controller that connects to these configurations. And the configurations can
`be individual or collections of the driver functions that are the next claim
`element that we met.
`Importantly, Gertz discloses this as a hardware
`implementation all the way down to the device driver level. And that's
`going to be important when we try and compare this with the actual claim
`constructions that have been given.
`This framework, this Gertz/Chimera framework, all came out
`of the Carnegie Mellon Advanced Manipulators Lab. The research was all
`coordinated by a single researcher, Dr. Pradeep Khosla. It had a specific
`targeted reason. It was to reduce cost of developing reusable reconfigurable
`code, and its solution is essentially the same as what's taught in the patent.
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`That is, provide a middleware-ware.
`Middleware was not a new concept in 1990. Middleware was
`pretty common. The Apple toolkit was an example of middleware.
`Microsoft's Graphic Device Interface was an example of middleware. Other
`companies developed middleware that would allow people at the application
`level to write an application once and allow people to change the underlying
`hardware that it was connected to overtime. That was a cost-saving
`maneuver.
`
`I only want to touch on the -- pardon me. The prior invention
`argument briefly because there's one overriding point that nothing in RGB's
`papers has ever addressed.
`Independent corroboration. They cite the case law saying
`there is every element, every piece of evidence doesn't have to be
`independently corroborated. I note, however, I could not find a single case
`in which corroboration was an issue, in which it was accepted without there
`being at least one independent corroborating witness, at least one, and in
`many cases more. There are cases where there were third-party independent
`witnesses testifying, and they did not find that the testimony was adequately
`corroborated.
`The core issue here, and it's a long-standing case law, is that
`the inventor cannot prove prior conception or diligence by reference to his
`own testimony and his own documents. That is the only thing that has been
`offered by RGB. They offered a time record -- allegedly a time record.
`Again it's not witnessed by any third party.
`They've offered specifications. Again, no evidence that they
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`were communicated to another person at a specific date and a specific form
`with specific information in them. The Board has already addressed their
`reading of the law. That is the Mahurkar and the Price cases in the Garmin
`decision and said -- pardon me. Mahurkar goes to the content of the
`document. It doesn't concern itself with that the document existed in a
`specific form on a specific date. Their proof is certainly lacking on that and
`their citation to the NTP case is perhaps one of the worst cases for them
`because if the Board recalls there were something like 40 or more exhibits. I
`believe there were at least 43. There was trial testimony. There were
`declarations from the named inventors. There was no, to my knowledge,
`independent third-party corroboration as to the core central fact as to
`whether they could get the date of that earliest document, and as a result they
`lost that patent.
`As we've noted in our reply brief, the time records themselves,
`they don't conform with the case law. They're not the kind of thing that
`would not be necessarily incapable of modification. I'm not asserting
`necessarily that they did modify it. I don't have any evidence on my side. I
`don't have any discovery to know what other documents that they had that
`might indicate that these are not authentic or that there were changes, but I
`don't think that's my problem.
`On further investigation in this area, I believe the case law
`states at least in interference practice that it would be the person claiming
`prior invention. It would be their burden of proof to actually prove that
`concept. And we see in the cases that they've cited, at least one of the cases
`they cited I put in my slides here, that burden of proof is assigned to the
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`prior inventor.
`I'm not aware of any specific case law in IPR that says where
`this burden should be, but I can tell you it should probably fall on the
`interference side, because I don't have free discovery. I don't have the
`ability to demand all their documents, go through them and identify
`specifically what might be inconsistent.
`Thus, this is more like the limited discovery interference
`proceeding. I believe that burden should fall to them. I believe the case law
`supports that.
`Another problem with their antedate argument, which they
`don't address at all, we stated in our brief "conception requires proof that
`every element of the claims was known to the inventor."
`Every element of the claims. That comes from Coleman v
`Dines, 754 F.2d 353, Federal Circuit 1985. The exact statement is, "It is
`settled that in establishing conception, every feature recited in the count
`must be accounted for. Every limitations of the count must have been
`known to the inventor at the time of the alleged conception."
`Now in Interrogatory responses, I believe
`Mr. Brown signed a verified response saying that Claim 10 of the '236
`Patent was entitled to a February -- or a 1996 date. Well, that's not every
`element of the claims of the patent. But moreover, we already know that
`they didn't cover the claim -- any of the claims that were in the joint
`proceedings. His declarations don't go into those at all. In short, they didn't
`account for every element of the claims. Under the applicable law then, they
`failed. They failed at the outset. They don't have enough proof. They don't
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`IPR2013-00062; IPR 2013-00282; IPR2013-00074; & IPR2013-00286
`Patents 6,516,236 & 8,073,557
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`have enough -- they didn't provide enough evidence at the outset. They
`didn't provide corroboration, legally sufficient corroboration. And I believe
`on our slide, page 17, which I mentioned earlier, "Corroborating evidence
`must be independent of anything originating from the inventor." The exact
`quote.
`
`"The inventor, however, must provide independent
`corroborating evidence in addition to his own statements and documents."
`And I'll ask the Board which of the documents that have been presented that
`they've relied upon in their existing response or surreply meets that
`definition?
`
`JUDGE GIANNETTI: Mr. McLeod, in that -- in some of
`your papers you refer to gaps --
`MR. MCLEOD: Yes, Your Honor.
`JUDGE GIANNETTI: -- in the chain of diligence. Are you
`still asserting that?
`MR. MCLEOD: Absolutely, Your Honor.
`JUDGE BISK: And can you be specific about what gaps you
`see and where -- where they take place?
`MR. MCLEOD: We identified specific gaps. There were a
`number of specific gaps. We identified one gap as being the alleged
`vacation period where Mr. Brown claimed in his declaration -- and this is
`important because during this period from the 20th of December to the 3rd
`of December, which he now claims as vacation period --
`JUDGE GIANNETTI: 21st of December to the 3rd of
`
`January?
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`MR. MCLEOD: I believe that's correct, Your Honor. In
`his time records, he lists -- he has two entries
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