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`IPR2015-01866, Paper No. 33
`IPR2015-01867, Paper No. 39
`IPR2015-01868, Paper No. 39
`February 17, 2017
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`trials@uspto.gov
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`571-272-7822
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`--- --- ---
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`--- --- ---
`K.J. PRETECH CO., LTD.,
`Petitioner,
`V.
`INNOVATIVE DISPLAY TECHNOLOGIES LLC,
`Patent Owner.
`--- --- ---
`
`
`
`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
`
`Oral Hearing held on Tuesday, January 10, 2017
`
`
`
`Before: THOMAS L. GIANNETTI, MIRIAM L. QUINN, and
`
`BEVERLY M. BUNTING, Administrative Patent Judges.
`
`
`
`The above-entitled matter came on for hearing on Tuesday,
`January 10, 2017 at 1:37 p.m. in Hearing Room G, taken at the U.S. Patent
`and Trademark Office, 300 River Place, Detroit, Michigan.
`
`
`
`APPEARANCES:
`
`JEFFREY R. BRAGALONE
`JUSTIN B. KIMBLE
`Bragalone Conroy PC
`2200 Ross Avenue, Suite 4500 W
`Dallas, Texas 75201-7924
`(214) 785-6671
`Jbragalone@bcpc-law.com
`Jkimble@bcpc-law.com
`
`ROBERT G. PLUTA
`SAQIB J. SIDDIQUI
`Mayer Brown LLP
`71 South Wacker Drive
`Chicago, Illinois 60606-4637
`(312) 701-8641
`Rpluta@mayerbrown.com
`Siddiqui@mayerbrown.com
`
`ALSO PRESENT:
`Blair Silver, Gibson Dunn
`Jason C. Lo, Gibson Dunn
`Eric Klein, Vinson & Elkins
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`P R O C E E D I N G S
`
`(1:37 p.m.)
`JUDGE BUNTING: Good afternoon. This is
`the final hearing in IPR2015- 01868, 1867 and 1866. The
`petitioner is K.J. Pretech, and VIZIO versus patent owner
`Innovative Display Technologies. Case Numbers 2016-910
`and 2016-914 have been joined with these proceedings.
`The patents involved are 8,215,816, 7,537,370 and
`7,434,974 respectively.
`I'm Judge Bunting and I will be presiding
`today. Appearing remotely from Alexandria is Judge
`Giannetti on the left of the screen and from Dallas is
`Judge Quinn on the right of the screen. Judge Giannetti
`and Judge Quinn, are you able to hear?
`JUDGE GIANNETTI: I am.
`JUDGE QUINN: Yes, I can hear you too.
`JUDGE BUNTING: Thank you. Let's begin
`with the appearance of counsel beginning with petitioner.
`Please approach the microphone and state your names.
`MR. PLUTA: Good afternoon, Your Honors.
`Robert Pluta on behalf of petitioner, K.J. Pretech. With
`me is my colleague Saqib Siddiqui on behalf of K.J.
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`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`Pretech. Also in the courtroom is Jason Lo appearing on
`behalf of VIZIO and Eric Klein on behalf Lenovo. Both
`Lenovo and VIZIO have trials that are imminent on two of
`these three patents within the next month or so. So they're
`here for these purposes today.
`JUDGE BUNTING: Thank you. And let me
`ask, is there someone on the line for petitioner also?
`Identify yourself, please.
`MR. SILVER: Yes, your Honor. This is Blair
`Silver from Gibson and Dunn on behalf of petitioner
`VIZIO.
`
`JUDGE BUNTING: All right, and is that all
`we have for petitioner?
`MR. SILVER: Jason Lo should be in the room
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`as well.
`
`JUDGE BUNTING: All right. Thank you. And
`who will be making the presentations for petitioner?
`MR. PLUTA: Your Honor, I will be making
`the presentation for the 974 Patent and Mr. Saddiqui will
`be making the presentation for the 816.
`JUDGE BUNTING: I'm sorry. What was Mr.--
`MR. PLUTA: Siddiqui.
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`JUDGE BUNTING: Thank you. Okay. Patent
`owner, please, who is the appearing for patent owner
`today?
`
`MR. BRAGALONE: Jeff Bragalone, Bragalone
`Conroy, and also my colleague, Justine Kimble
`representing patent owner, Innovative Display
`Technologies. I will be making the presentation on the
`974 Patent and Mr. Kimble will be making the presentation
`on the remaining two patents.
`JUDGE BUNTING: All right. Thank you. I'd
`like to just go over how we're going to be proceeding
`today. Per the December 13, 2016 Order, each party will
`have 45 minutes of total time to present its argument. It
`will be up to the party how much time is accorded to the
`proceeding within the allotted 45 minutes.
`Petitioner, you have the burden so you will
`proceed first. Then patent owner will argue its opposition
`to the petitioner's case. Petitioner, you may reserve
`rebuttal time to respond to patent owner's presentation.
`Please remember that the remote judges are unable to hear
`you unless you do step up to the microphone. And I
`understand one party requested use of the ELMO. In order
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`to assist Judges Giannetti and Quinn with whatever is
`shown on the ELMO, please be sure to indicate what page
`you are referring to in the proceeding.
`In reviewing the papers today it looks like both
`parties have motions objecting to the demonstratives of the
`other party. Please, for the time being, in reviewing these
`we understand that the parties, both sides, have taken
`liberties with the rules on demonstratives. Therefore, we
`will not make any ruling on the demonstratives and they
`will not be part of the record at this point in time.
`Petitioner, you're going to begin. Do you want
`to reserve any rebuttal time?
`MR. PLUTA: Yes, your Honor. We'd like to
`reserve 15 minutes for rebuttal time.
`JUDGE BUNTING: Okay. If you observed we
`don't have a clock in the hearing room here so I will be
`using my clock to take time. According to my computer
`it's 1:43. So you may approach the podium and get
`started.
`
`MR. PLUTA: Thank you, your Honor. Your
`Honor, I also have hard copies of our presentations if you
`would like to have a copy.
`
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`JUDGE BUNTING: Thank you. I'd appreciate
`that. You may begin whenever you're ready.
`MR. PLUTA: Thank you. Good afternoon.
`May it please the Court. I'm on Slide 2. This IPR was
`instituted on all challenged claims -- I'm sorry. Let me
`start over here. I'm going to start with the 974 Patent and
`then Mr. Siddiqui will handle the 370 Patent and we may
`or may not have any remaining arguments on the 816
`Patent depending on if the Court has questions.
`So the 974 Patent, IPR, was instituted on all
`challenge claims based on all grounds directed at eight
`claims of the 974 Patent. The issues in the foreground are
`fairly straightforward. The patent owner only challenges a
`few limitations for Ground 1 and obviously Grounds 2
`through 4.
`
`Moving to the first ground on Slide 3,
`anticipation by Kisou. Patent owner does not dispute that
`Kisou discloses many of the elements of the claim. In the
`first disputed limitation it relates to a pattern of
`deformities. Now the Board’s construction of deformities
`requires two things in order for an element to meet that
`construction. One, any change in shape of the surface; and
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`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`two, that change in shape causes a portion of the light to
`be emitted.
`Kisou's Light Paths 31 are changes in shape of
`the surface of the Light Conductor 30, which is Kisou's
`panel. I'm on Slide 4. How do we know this? The Light
`Paths 31 are formed on the rear side of the light conductor
`30. That's Kisou at Paragraphs 26 and 27 in the petition at
`20. Recessed, this is from Kisou Paragraph 31, recessed
`light paths are formed in the rear surface thereof; thereby
`allowing light from the lamp units to be distributed to all
`parts of the entire effective light-emitting surface by the
`light paths.
`I'm on Slide 5. Patent owner's expert, Mr.
`Werner, agrees. Exhibit 1026 at Pages 53 and 58. Slide 6;
`Kisou emphasizes that the recessed Paths 31 impart the
`light conductor with a corrugated shape, and Kisou
`discloses that the Light Paths 31 have a triangular cross-
`section. In the patent owner's argument nor the Board’s
`construction of deformities can rest on a false premise that
`the Light Paths 31 are only the spaces between the Light
`Conductor 30 and Reflector 40 and not the surface of the
`light conductor. But the Board already considered patent
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`owner's gap argument and the institution found that
`petitioner argued persuasively that the triangular cross
`section of the Light Path 31 of the conductor forming a
`corrugated shape in the bottom surface of the light
`conductor is a deformity that extracts light toward the
`light manager of the light conductor.
`Slide 7; again, Mr. Werner, patent owner's
`expert, agreed that the light paths created on the rear
`surface of the light conductor result in a change in shape
`of the rear surface of the light conductor leading the first
`part of the deformities definition; that's Exhibit 1026 Page
`58, 59 and Page 63.
`Moving on to Slide 8, the Light Paths 31 also
`caused at least a portion of the light to be emitted. The
`light paths scatter the light in all directions. They split
`and diffuse the light.
`JUDGE BUNTING: Counsel, can we go back
`to that slide. I'd like to take a look. So looking at this
`slide –
`
`MR. PLUTA: Slide 8?
`JUDGE BUNTING: Slide 8, let me catch up
`with you here. Okay. Slide 8. We see all those arrows.
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`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`Those arrows presumably are the light paths?
`MR. PLUTA: That's our understanding.
`JUDGE BUNTING: Okay. And can you
`explain how the light travels -- it looks like some of the
`arrows are on top of the corrugated portions and some of
`the arrows are going through the tunnel.
`MR. PLUTA: Sure, your Honor. My
`interpretation is a little different than yours with respect
`to what Figure 8, I think you were referring to, --
`JUDGE BUNTING: Okay.
`MR. PLUTA: -- to what it shows. So if you're
`going to refer to that Figure 9, there are no light paths
`shown, I guess, through the bottom triangles. All the light
`that's shown in Figure 9 is within the Light Conductor 30
`and it's bouncing around after it hits the Light Paths 31. If
`you look on Figure 8, what that is, if you turn the Figure 9
`90 degrees you're looking at the face, a slanted face, of the
`triangular section. So while it may look like it's going
`through, it's actually going on the side.
`We're not -- our position is, we're not
`contending that no light, or absolutely no light, would get
`in under in those gaps. But the light will go into the light
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`conductor and hit the Light Paths 31, just as it says in
`Kisou, and go towards the light surface; and, as Kisou says
`exactly, thanks to those Light Paths 31.
`And again, there's no actual evidence in the
`record that shows it gets under but it's reasonable to think
`that it may. The light is going to certainly go directly into
`the light monitor. And Mr. Werner agreed at page 60 -- I'm
`sorry -- if I go forward to Slide 10. He agreed that some
`light enters the light guide directly and as the light path
`splits, Light Path 31 splits and diffuses the light. He also
`--
`
`JUDGE BUNTING: Okay. Let me interrupt
`you a second because I want to make sure that I understand
`you correctly. So going back to Figure 8, that arrow -- if
`you look at like reference numeral 40, you see some
`horizontally pointed arrows. So you're saying that those
`are not inside -- those arrows are on the outside of a
`corrugated portion?
`MR. PLUTA: That's correct. So if you look at
`Figure 8, we're looking at the slanted face of one of those
`corrugated sections, what's happening on those reflected --
`it’s hitting kind of the point at which those two shapes
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`meet and hitting off the Reflective 40. So it's not actually
`in the triangular shape.
`JUDGE BUNTING: It's not in there. Okay I
`understand.
`MR. PLUTA: So there's actually no depiction
`really of 10, and it makes sense if you look at Figure 9,
`there's no light rays depicted going through those tunnels;
`if you want to call them tunnels or gaps -- Kisou calls
`them gaps -- on 8 or 9. So that's why.
`JUDGE QUINN: Counsel, but it is irrelevant
`that light may go through the tunnels, or in the wells, if
`you will, if it goes straight through, I guess, into the page
`on Figure 9. Does it matter when the claims require that
`the deformities cause the light to be emitted and those rays
`are going straight through?
`MR. PLUTA: Your Honor, the light, if -- some
`may get under and it will deliver it to a further part of the
`light conductor, but a lot of it is going to go directly into
`the light conductor and hit the Light Path 31 just as Kisou
`says in Paragraphs 26 and 27. So, in some sense the fact
`that some light may get under and go through those so-
`called tunnels or gaps is somewhat irrelevant, it is
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`IPR2015-01867 (Patent 7,537,370)
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`irrelevant, to the meeting of the deformity claim and
`causing light, a portion of the light, to be emitted, of the
`light hitting the surface.
`JUDGE QUINN: Is there any testimony as to
`the amount of light that gets to be directed to the
`deformities and the portion of the area where the light is
`going out to the diffusing layer versus the stuff that goes
`straight through?
`MR. PLUTA: There is, your Honor, although
`not parsing it as you just ended your question. But Mr.
`Werner agreed that light does and -- Mr. Werner, patent
`owner’s expert, agreed that some of the light enters the
`light guide directly, and that Light Path 31 splits and
`diffuses the light. Mr. Werner also was asked, and this is
`on Page 65 and 66 of Exhibit 1026. So, this is the
`question, so “many of the light rays that are split are
`diffused by the Light Paths 31 will be emitted from the
`Conductor 30; correct? Answer, ultimately yes.”
`So, the claim language which requires a change
`in shape of the light conductor, which I don't think patent
`owner's going to disagree with the corrugated shape,
`causes change in shape of the light emitter, only a portion
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`IPR2015-01867 (Patent 7,537,370)
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`of light has to be caused to exit the device by the
`deformities. That testimony along with the testimony from
`Mr. Credelle and his declaration at Exhibit 1004 and the
`petition certainly sets forth that that light is going to,
`according to the claim language, at least a portion of that
`light is going to exit the light emitting surface as a result
`of the deformities -- as result of the Light Path 31.
`And Kisou in Paragraph 27, this is Slide 9,
`discloses that the light from the light source reaches all
`parts of the entire effective light emitting surface, again,
`thanks to the recessed light paths. The Light Path 31
`causes at least some of the light to be emitted; therefore,
`Kisou discloses the claim deformities as construed by the
`Board and agreed by the parties. Unless there's any
`further questions on the deformities limitation, I'd like to
`move on to the next one.
`JUDGE BUNTING: Just to clarify the point
`you made, so you agree with our claim construction from
`the DI?
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`MR. PLUTA: We do.
`JUDGE BUNTING: Okay. Thank you.
`MR. PLUTA: And I might add so does the
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`patent owner.
`JUDGE BUNTING: Okay. And is that the
`same claim construction that has been offered by the
`Board?
`
`MR. PLUTA: It was.
`Mr. Pluta: Thank you. So the next claim
`element in the 974 Patent in Claims 1 and 7 is that Kisou
`discloses a tray with inside walls that act as end and side
`edge reflectors reflecting light towards the deformities.
`And just to orient everybody, Petitioner's position is that
`the tray is the Reflector 60 of Kisou along with the lamp
`units which include light reflecting plates, rear reflecting
`plates, side reflecting plates. And there's no dispute that
`Kisou discloses a reflective tray with the lamp units with
`the rear, lower, upper and side reflective plates. The only
`dispute I have is whether the light is reflected back
`towards the deformities.
`If we look at Slide 11, Kisou discloses that the
`light reflecting plates reflect light, progressing forward
`and downward into the light guide. This is also toward the
`Light Paths 31, which is the deformities; this was at the
`Petition at Page 21 and Kisou at Paragraph 23. Kisou also
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`discloses that Reflector 60 has a light reflecting function
`in this -- and it's on Slide 11. Kisou notes that in this
`example the Reflector 60 has not only a light reflector
`function but also a function of containing the Light
`Conductor 30 and the lamp Unit L.
`If we move on to Slide 12, Mr. Werner agreed,
`and this is Exhibit 1026 at Pages 74 and 75 and 76. Kisou
`discloses end and edge reflectors for reflecting light
`towards the -- for causing additional light to be emitted.
`I'd like to move on to the next limitation at
`issue in Kisou. Kisou discloses a tray or housing with
`post tabs or other structural features that provide a mount
`for structural support according to Patents 1 and 7. I'm on
`Slide 14. The dispute with respect to this limitation really
`is only created by patent owner's reading of the claim in
`these issues. Claim Element 1G only requires that post
`tabs or other structural features provide a mount for
`mounting of the assembly into a larger device or assembly.
`There's no additional requirement to provide structural
`support with respect to the post tabs, or other structural
`features. And Mr. Werner, patent owner's expert, at
`Exhibit 1026 Page 34 testified that mounting is just the
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`fastening of two parts where assembling is going on. In
`Claim 7F, which is very similar to Claim 1, it only
`requires that structural features provide, in the alternative,
`a mount or structural support.
`Moving on to Slide 15 in Kisou, the mounting
`holes 62 are the features for mounting or features that
`provide a mount. Kisou explains that the mounting holes
`62 are used in conjunction with lead wires 22, 23 of the
`lamp units and solder to mount the back lights in Light 1
`to a larger device for assembly; and that was set forth in
`the petition at Page 15.
`The next set of claims are Claims 5, 10 and 11.
`We have an anticipation, if you have Kisou, and the
`obviousness while arguing a Kisou issue, in the interest of
`time I'm just going to refer the Board to our papers unless
`there's any specific questions on Claims 5, 10, 11. So, for
`the record, I'd like to reference the petition at Pages 17
`and 18, Page 22, Page 24 and 25 and will apply at Pages
`10, 11 and 12.
`JUDGE BUNTING: The only question we have
`here is, I believe, you're relying on the prior art to show
`the diffuser sheet. Is that correct or does Kisou teach
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`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`this?
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`MR. PLUTA: Kisou doesn’t teach this and the
`scatterer of 32 can be the film from the claim, but we also
`look at what Kisou discloses in Paragraph 3, which notes
`that there can be a diffuser. So the alternative ground,
`Ground 2, of the obviousness for those claims would be to
`the extent the Board does not accept our argument that the
`scatterer of 32 is the separate film by the claims, one of
`the skills in the art terms looked to Kisou's description of
`Paragraph 3 of the diffuser sheet that can be set above the
`light conductor.
`JUDGE BUNTING: Thank you.
`MR. PLUTA: I'm going to, again, do a similar
`approach to Ground 3, which are Claims 3 and 4 that are
`obvious over the combination of Kisou and Yagi. I'm
`going to refer the Board to our papers on this ground
`petition at Pages 26 through 30 and the reply at Pages 12
`through 14 unless the Board has any specific questions on
`this ground.
`JUDGE BUNTING: No questions.
`MR. PLUTA: Then I'm going to move on to
`Ground 4, and that is Claims 1, 3 through 5, 7, 8, 10 and
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`11 are obvious over the combination of Furuya and
`Niizuma. The only dispute for this ground is whether it
`would have been obvious to combine the two embodiments
`in Furuya as i nstructed by Niizuma.
`So this really is a simple combination of the
`two embodiments enclosed within the same patent. In its
`response, patent owner simply repeated the arguments
`rejected at the institution decision when the Board found
`that patent owner has not pointed to anything in the
`references that criticize, discredit or discourage the
`proposed combination.
`The Board also recognized that both Furuya
`and Niizuma are drawn specifically from the same field of
`Liquid Crystal Displays, and as quoted in the decision,
`institution decision, it's not necessary for the prior art to
`serve the same purposes, or disclose the exact method or
`structure as that in the 974 patent in order to support the
`conclusion that the claim subject matter would have been
`obvious.
`
`I'm going to Slide 21. Contrary to patent
`owner's arguments, a person of ordinary skill in the art
`would combine the light guide plate with the reflectors of
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`Furuya. Niizuma explicitly discloses benefits of placing a
`light guide plate in a reflective holder. And that's the
`Petition at 4748 and Exhibit 1007 at Paragraphs 12, 19,
`and 20. Also, Mr. Credelle has some statements on this at
`Exhibit 1004 Paragraphs 134 and 141.
`And moving on to Slide 23, Furuya expressly
`recognizes that the structural features disclosed are the
`same throughout all of its embodiment. Furuya notes at
`Paragraph 18, “with this structure as in the foregoing
`embodiment it is impossible to obtain uniform glare and
`illumination with high brightness.” In Slide 24 you can see
`in Figures 2 and 8 of Furuya there's a similar structure
`with deformities between the embodiment of Furuya and
`both illustrate light being reflected out of the device in
`both embodiments.
`In Slide 25 Mr. Werner, patent owner's expert,
`described and agreed that such a light guide would have
`advantages. He also agreed that having a light guide
`match the shape of the holder as it does in Furuya Figures
`2 and 8 would be a simpler structure.
`Slide 26, both Furuya and Niizuma disclose a
`similar design of embedding light sources in the light
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`guide. So unless there's any further questions, I'd like to
`reserve the rest of my time for rebuttal, but we would
`reiterate with respect to 974, I request that the Board find
`them patentable on all construed claims.
`MR. SIDDIQUI: Good afternoon, Your
`Honors. I will be addressing the 370 and the 816 patents.
`So I'm going to start with the 370. And with respect to
`370 I'm going to go to Slide 4, and we have two grounds
`here. One is Claim 29 obviousness in view of Suzuki and
`the second ground is Claim 47 obviousness in view of
`Suzuki and Pristash.
`So for Claim 29 the dispute is centered on
`limitation 29E, which requires that the light extracting
`deformities vary in a different way or manner on one side
`of the patent number as compared to the other.
`With respect to the second ground, I'm going to
`address later, one of the disputed features is limitation for
`47E, which is the same as 29E and 47F which requires that
`there be a transition unit.
`Starting with the first ground, Suzuki
`explicitly teaches multiple examples of embossed patterns
`that have various shapes which are angled in direction.
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`Specifically, at 52, Paragraph 52 Suzuki, specifically it
`says, “embossed patterns having different pitches may be
`formed on the front and back surfaces of the light guide.”
`Now, having spoken with Mr. Werner during
`his deposition he agreed that a pitch of one millimeter
`versus two millimeter means that the optical element
`where the pitch is one millimeter is more densely packed
`on that side with the light guide. In addition --
`JUDGE GIANNETTI: Counsel, let me stop you
`there. I have a question about these claims. I think there
`may be a difference of opinion here between you and the
`patent owner as to how this claim should be interpreted.
`Let me see if I can get to the bottom of that. The claim
`talks about -- let me get the language of the claim out.
`Okay. I've got the claim up. According to the claim , the
`light extracting deformities on or in one of the sides must
`vary in a different way or manner. So would you say that
`that was met by a panel that had constant pitch on both
`sides even if that pitch differs? In other words, there's no
`variation in pitch on either side. Would you say that that
`claim element is met by that?
`MR. SIDDIQUI: So your Honor, I believe it
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`would be met if there was -- the pitch was constant on one
`side but varied on the other.
`JUDGE GIANNETTI: Well, why is that,
`because this says it has to vary in different ways. Doesn't
`that suggest it has to vary on both sides?
`MR. SIDDIQUI: So on one side it would vary
`in the way that the pitch would be a certain distance from
`the deformities and the other would be different. In
`addition, I think what was going to be my next slide
`basically is I think what we need to see is we need to look
`at the disclosure in Suzuki as a whole. And not only does
`Suzuki discloses using the deformities of different pitches,
`but it also discloses using the deformities of many kinds.
`So Figures 2 through 20 essentially disclose
`you have deformities of different shapes. For example, in
`Figure 20 you will see there's the deformity that's a
`square. Within that deformity you have a square, a
`pyramid and different sizes. Mr. Credelle in his
`declaration on Paragraph -- Exhibit 1004 Paragraph 151 to
`160C and 134 to 139 goes to at length explaining how not
`only does Suzuki disclose that you have deformities with
`different pitches on either side, but you can have also
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`different types of deformities.
`JUDGE GIANNETTI: I want to come back to
`the example that you put forward here on Page 5, Slide 5,
`and I believe that was the subject matter of my question.
`You have a situation where you have an embossed pattern
`with one pitch on one side and a different pitch on the
`other side. And is it your contention that that would meet
`this claim element?
`MR. SIDDIQUI: If the pitches are different on
`either side then that's -- there's a variance on both sides.
`JUDGE GIANNETTI: So your interpretation of
`this claim does not require the pitch to vary on either side
`in order for this element to be met; is that correct?
`MR. SIDDIQUI: That's correct. It needs to
`vary in a different way or manner.
`JUDGE GIANNETTI: We may be hearing from
`the patent owner. I don't think they agree with that so I
`think we may have a claim construction issue here but at
`least I have your position on that. You can continue.
`MR. SIDDIQUI: Thank you, Your Honor. So,
`even if we went under the patent owner's interpretation, if
`we're saying that on one side the pitch needs to be, for
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`example, gradient pitch but on the other side it needs to be
`a different type of variance; whether it's a different shape
`or different size or different angle, we need to look at the
`various disclosures from Figure 2 through 20 of Suzuki.
`At the end of all these disclosures in Suzuki it explicitly
`says that all or some of the examples may be used in
`combination.
`Now, there's a dispute in that, that this
`statement -- I believe Mr. Werner at some point had stated
`that this statement is only for examples given in the
`disclosure of Suzuki or the Table 1 example which is not
`to be combined with the table example of Suzuki. But
`really what we know is that Suzuki explicitly teaches that
`all or some examples may be used in combination.
`In fact, Mr. Werner during his deposition gave
`different positions on this statement. So, it may be
`ambiguous. It may only apply to the tables in Example 2.
`It may only apply to certain figures, and all of these are
`stated in Slide 8, but what is important is that we also
`agree that it is possible that in this statement all or some
`examples may be used in combination applied to examples
`of both Tables 1 and 2.
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`IPR2015-01866 (Patent 8,215,816)
`IPR2015-01867 (Patent 7,537,370)
`IPR2015-01868 (Patent 7,434,974)
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`So taking Suzuki as a whole, I believe -- we
`believe that it does disclose having different deformities
`or different embossed patterns varying in both sides.
`JUDGE GIANNETTI: Do you agree with me,
`Counsel, that the examples that are explicitly set forth in
`Table 1 would not meet this requirement?
`MR. SIDDIQUI: Let me just take a look at
`Table 1 real quick, Your Honor.
`JUDGE GIANNETTI: It's Page 9 of Suzuki.
`MR. SIDDIQUI: Is that the table that only
`discloses deformities that says there's only deformities on
`one side?
`
`JUDGE GIANNETTI: No. One of the
`examples has deformities on both sides but they appear to
`be at the same pitch and the same shape.
`MR. SIDDIQUI: I believe it is the same. Both
`sides have the same pitch and same shape; then I agree
`with Your Honor.
`JUD
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