UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`HTC CORPORATION, HTC AMERICA, INC., and
`SAMSUNG ELECTRONICS AMERICA, INC.,
`Petitioner,
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`v.
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`UNILOC 2017 LLC,
`Patent Owner
`____________
`
`Case IPR2018-015891
`Patent 7,653,508 B1
`____________
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`Record of Oral Hearing
`Held: December 11, 2019
`
`Before SALLY C. MEDLEY, JOHN F. HORVATH, and
`SEAN P. O’HANLON, Administrative Patent Judges.
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`1 Samsung Electronics America, Inc., which filed a petition in IPR2019-
`00889, has been joined as a petitioner in this proceeding.
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`
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`HTC CORPORATION, HTC AMERICA, INC., and
`SAMSUNG ELECTRONICS AMERICA, INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner
`____________
`
`Case IPR2018-015891
`Patent 7,653,508 B1
`____________
`
`Record of Oral Hearing
`Held: December 11, 2019
`
`Before SALLY C. MEDLEY, JOHN F. HORVATH, and
`SEAN P. O’HANLON, Administrative Patent Judges.
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`1 Samsung Electronics America, Inc., which filed a petition in IPR2019-
`00889, has been joined as a petitioner in this proceeding.
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`Case IPR2018-01589
`Patent 7,653,508 B1
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`TODD E. LANDIS, ESQUIRE
`JEFFERY R. SWIGART, ESQUIRE
`VINSON & ELKINS LLP
`2200 Pennsylvania Avenue NW
`Suite 500 West
`Washington, DC 20037
`202-639-6500
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`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`BRIAN KOIDE, ESQUIRE
`ETHERIDGE LAW GROUP
`1100 Queensborough Blvd.
`Suite 200
`Mount Pleasant, SC 29464
`843-614-0007
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`The above-entitled matter came on for hearing on December 11,
`2019, commencing at 1:30 p.m., at the United States Patent and
`Trademark Office, USPTO Madison Building, 600 Dulany Street,
`Alexandria, VA 22314.
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`Case IPR2018-01589
`Patent 7,653,508 B1
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` (Proceedings begin at 1:30 p.m.)
` JUDGE O'HANLON: Please be seated. Good afternoon,
`everyone. This is a hearing in Case No. IPR2018-01589,
`HTC Corporation and HTC America, Inc., versus Uniloc 2017 LLC;
`formerly Uniloc Luxembourg S.A. Samsung Electronics America,
`Inc. has also been joined as a Petitioner in an understudy
`role. This proceeding involves U.S. Patent No. 7,653,508.
` I'd like to start by having counsel
`for the parties introduce yourselves for the record, starting
`with HTC Petitioner.
` MR. LANDIS: Good afternoon. Todd Landis and Jeff
`Swigart for HTC.
` JUDGE O'HANLON: Is there anyone here for the
`Samsung Petitioner?
` MR. VALENTE: Yes, Your Honor. David Valente for
`Samsung.
` JUDGE O'HANLON: Okay. Thank you. For Patent
`Owner?
` MR. KOIDE: Good afternoon, Your Honor. Brian M.
`Koide for Uniloc 2017 LLC.
` JUDGE O'HANLON: Thank you. I'm Judge O'Hanlon.
`I'm joined here in the Alexandria hearing room by Judge
`Medley, and we're joined remotely by Judge Horvath. The
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`camera for Judge Horvath is located behind the
`bench, so there's no need to look at the screen when
`addressing him.
` Judge Horvath will only be able to hear what the
`microphones pick up, so I ask counsel to keep that in mind
`when making your presentations today. And I'd also ask
`counsel when referencing demonstratives to please state the
`slide number so that Judge Horvath, as well as Judge Medley
`and myself, can follow along more easily.
` Per our order dated November 6th, each side will
`have 30 minutes of total time to argue. Petitioner will go
`first, followed by Patent Owner. Each side may reserve time
`for rebuttal. If you run over during your argument in chief,
`I will let you continue arguing using the time you have
`reserved for rebuttal. I'll endeavor to let you know when
`this happens, but please be mindful of the timer and the
`lamps. And as usual, speaking objections are not allowed. You
`may note anything you care during your time to argue.
` And with that, I invite Mr. Landis to begin. Mr.
`Landis, do you wish to reserve any time for rebuttal?
` MR. LANDIS: Yes, Your Honor. I'd like to reserve
`ten minutes for rebuttal, please?
` JUDGE O'HANLON: Ten minutes. All right. So I'll
`set the timer for 20 minutes. Okay. Begin when you're ready.
` MR. LANDIS: Thank you, Your Honor. Mr. Swigart,
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`could we go to Slide 2, please?
` Your Honors, we're here today really, in some ways,
`from two different types of cases. We have the positions that
`Uniloc took during their preliminary response and their
`response, and now the positions that they've taken in their
`sur-reply in this case. I think under either position that you
`look at, this claim, Claim 20, the only claim we're here to
`talk about, should be found unpatentable.
` In the first instance, because as we see on the
`slide, this Board has already found many of the claims in the
`'508 unpatentable, including Claims 3, 13, 15, and 19. Claim
`15 being the independent claim from which Claim 20 depends.
`The Board has also found in its institution decision that
`there's no dissimilarities between Claim 13, Claim 3, and
`Claim 20. They found those claims to be similar.
` And so for the same reasons the Board found Claims
`13 and 3 to be unpatentable, they should find Claim 20 to be
`unpatentable in favor of Fabio -- the Fabio reference.
`There's no distinction. And when Patent Owner made their
`preliminary response and made their actual response in this
`case, they made the exact same arguments they made, and that
`this Board heard from -- during the Apple IPR where they found
`Claims 3, 13, 15, and 19 to be unpatentable. They're the
`exact same arguments.
` And for the reasons the Board didn't find those
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`arguments persuasive there, they shouldn't find them
`persuasive here because as the Board found in the institution
`decision, Claim 20 is not dissimilar from those other claims.
`Faced with this, I think, inevitable conclusion, Patent Owner
`decided to switch the game, and in their sur-reply, they now
`try to make new arguments that were never before made, not in
`their response. New arguments about patentability. And to do
`so, what they have done is they've taken some claim language
`and what appears to me to be is they're now trying to construe
`that claim language. In particular, the word cadence.
` They've made two arguments, as far as I can tell, in
`their sur-reply. One is that the fact that the word window is
`plural in Claim 20 lends to some distinct patentability for
`Claim 20. The problem is cadence windows was in Claim 19,
`too. And the Board found Claim 19 to be unpatentable over
`Fabio. So the argument that they're making now really doesn't
`have any merit, and has already been decided by this Board
`that Fabio teaches cadence windows.
` JUDGE O'HANLON: Mr. Landis, what about Patent
`Owner's argument that measured cadence, which that exact
`phrase is not in the prior claims, but the arguments of that
`phrase means you must consider more than one previous step?
` MR. LANDIS: Two points to that, Your Honor. First,
`the argument that they're making is a claim construction
`argument. And the support for that claim construction
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`argument when you look into the patent, actually comes from a
`preferred embodiment. It doesn't say it's in every
`embodiment. They're reading a limitation into the claim.
`They're doing something that the Federal Circuit has told us
`time and time again, and which patent owners routinely argue
`about during claim construction, you shouldn't do. You
`shouldn't read limitations from preferred embodiments in the
`claims. That's point one.
` Point two, Your Honor, is I believe they're
`conflating two concepts here. They're conflating validation
`with cadence. Cadence is, just by its own definition, is a
`rhythmic series of something; in this case, steps. Fabio
`teaches this exact concept. In Column 3 -- I'll get you the
`exact cite, Your Honor. In Column 3, Lines 22 through 29 of
`the Fabio reference, it teaches looking at a sequence of steps
`in order to get a predetermined condition of regularity for
`the gait of the person. The gait of the person being the
`cadence of that person's steps.
` This is exactly what Fabio teaches. It teaches that
`you're going to look at cadence, you're going to measure the
`cadence in terms of steps and come up with some baseline. And
`then when the person starts walking, you're going to determine
`whether they're in the baseline or not. And that's how Fabio
`works. So Fabio doesn't teach anything different, and I don't
`think it matters whether you accept -- whether the Board
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`accepts the definition of cadence or of measured cadence that
`they have now put forth -- Patent Owner has now put forth,
`because Fabio teaches a measured cadence as part of the
`system.
` So even if the Board were to accept these new
`arguments, I think you still have to come to the conclusion
`that it's taught in Fabio.
` JUDGE O'HANLON: And does Fabio consider a measured
`cadence, as you've discussed, simply by looking at one prior
`step?
` MR. LANDIS: I don't believe so, Your Honor. I
`think the one prior step -- this is, again, is where I think
`the conflation comes in. The one prior step is the validation
`part, and it -- they don't validate based on the prior step,
`as the Board has found in the past; it's really the current
`step. But the one step, that process is used for the
`validation part.
` When we're talking about the cadence part, the
`measured cadence, that is done with a sequence of steps, as is
`said in column -- well, it's in more than one place, but in
`Column 3, for example, Lines 22 through 29, and in Column 5,
`Lines 40 through 45. They're talking about the gait. And the
`gait of the person is the cadence, the measured cadence of the
`walk. You get a window, you get a threshold, and then you
`look when they start to walk whether they're within that
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`threshold. And if they are, then they -- then Fabio says you
`start to count. You start to count the steps if you're in
`that window.
` So I think Fabio is not talking about measuring
`cadence on a single step, and frankly, that would -- kind of
`wouldn't make any sense. I mean, a cadence somewhat requires
`more than one step in the end.
` JUDGE O'HANLON: But Claim 20 says adjusting the
`cadence window is based on a measured cadence. And I believe,
`in your petition, you rely on the validation interval of Fabio
`to be the cadence window, and isn't that adjusted based on one
`measured step?
` MR. LANDIS: So it's -- I think the window is
`validated based on one measured step. I'm not sure it -- I'm
`not sure you're determining the cadence based on one measured
`step.
` JUDGE O'HANLON: But it's the cadence window that is
`based on a measured cadence. And you've identified in your
`petition Fabio's validation interval TV to be the cadence
`window. And doesn't Fabio adjust that for each new step based
`on the timing of the most recent previous step?
` MR. LANDIS: So, Your Honor, the window I think that
`we're talking about here is what I believe I'm referring to
`when I'm talking about measuring the sequence of steps in
`Fabio. So the sequence of steps -- by measuring the sequence
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`of steps and getting the cadence, you can determine the window
`for the cadence; the cadence window itself.
` Then, once you want to validate whether or not
`that's in -- when something's within that window, you're
`looking at a step. But the window itself, according to Fabio
`and the teachings of Fabio, is done -- is determined by
`looking at a sequence of steps. And that's, again, Column 3
`and Column 5. So, Your Honor, I mean, again, the --
` JUDGE HORVATH: Let me ask you a question, Mr.
`Landis.
` MR. LANDIS: Sure.
` JUDGE HORVATH: But isn't -- I mean, in Fabio
`there's a formula for what the value of TV is. You would
`agree that TV is the cadence window in Fabio, correct?
` MR. LANDIS: Yes, Your Honor.
` JUDGE HORVATH: And so TV has a -- let me see if I
`can get to Fabio. I think it's in Column 5 --
` MR. LANDIS: I think the Column 4, Line 40, Your
`Honor?
` JUDGE HORVATH: Line 40, yes. So it depends on
`several times and a difference between times. It depends on
`the time of the previous step K-1, right?
` MR. LANDIS: Yes, sir.
` JUDGE HORVATH: And it also depends on a difference
`in time between step K-1 and K-2, right?
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` MR. LANDIS: Yes, Your Honor.
` JUDGE HORVATH: That's what -- Delta K-1, or Delta
`TK-1, I should say, is the difference in time between steps K-1
`and K-2. So this -- in Fabio, you would agree then that
`this cadence window TV is determined based on, really, two
`times. The time of the step K-1, and the time of step K-2.
`Wouldn't you agree with that?
` MR. LANDIS: Your Honor, I believe that's correct.
`I think what Your Honor's saying is there's two times -- and
`I'm just looking at them to make sure, but I believe you're
`correct, Your Honor.
` JUDGE HORVATH: Okay. Thank you.
` MR. LANDIS: So, Your Honors, again, these arguments
`that we're hearing now from Patent Owner are wholly new
`arguments. I think that the Board could rightly not consider
`them, but even if we do consider them, I don't think they do
`anything to prevent Claim 20 from being found unpatentable
`based on Fabio. I think Fabio still teaches all of the
`elements and anything that's new from Claim 20.
` And again, I would also say that the only way Patent
`Owner gets here is by putting forth a construction that we've
`seen for the first time now, and that construction is based on
`preferred embodiments out of the patent. It's not a
`construction, it's not a definitional construction. There was
`no lexicography, nor have they argued it. In fact, they
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`didn't really formally argue that it needed construction, but
`they did put forth many definitional statements within their
`response.
` So for those reasons, Your Honor, I think that Claim
`20 should be found unpatentable and I'm going to yield my time
`now, unless Your Honors have any more questions for me?
` JUDGE HORVATH: I do have one more question for you.
` MR. LANDIS: Sure.
` JUDGE HORVATH: So Claim 20 depends from Claim 19,
`which, itself, depends from Claim 15, correct?
` MR. LANDIS: Yes, Your Honor.
` JUDGE HORVATH: So in Claim 15, that's where we
`first are introduced with this concept of cadence windows.
`And in particular, in Claim 15, which is, sort of, Column 16,
`line -- let's say, 35 or so, to 37, it says -- or let's take
`it a little bit earlier; 34 roughly to 38. There's a mode
`logic that switches the device from non-active to active mode
`after a number of periodic human motions are detected within
`appropriate cadence windows.
` So I guess the question I have for you is one, what
`are the -- do the cadence windows -- would you agree that
`the cadence windows refer to the windows within which the
`periodic human motions are detected?
` MR. LANDIS: If Your Honor could give me one second.
`I think they're the windows in which periodic human motions
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`are looked to be detected. I'm not certain that they will
`necessarily be detected, but it's the windows in which you
`will look to detect them.
` JUDGE HORVATH: Okay. Fair enough. My next
`question then is, is there anything in Claim 15 that prevents
`-- or that would preclude each periodic human motion -- let's
`assume for the sake of this hypothetical that the steps are
`all detected and validated?
` MR. LANDIS: Yes, Your Honor.
` JUDGE HORVATH: So is there anything within Claim 15
`that would preclude each step from having its own appropriate
`cadence window?
` MR. LANDIS: Well, Your Honor, I think there would
`because it's simply by the fact that you're looking for a
`cadence. And I think that cadence -- it would be hard to have
`a cadence with just one step. You need to know what the
`cadence is. And so I think this is the same reason why Fabio
`teaches what it teaches, which is to -- in order to have a
`cadence, I think you probably need at least two steps so that
`you know that the cadence is.
` JUDGE HORVATH: Well, but earlier we had discussed
`what -- TV being the cadence window, correct?
` MR. LANDIS: Yes.
` JUDGE HORVATH: And you agree that TV is based on
`the timing of two previous steps, K-1 and K-2, correct?
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` MR. LANDIS: Yes. That's correct.
` JUDGE HORVATH: So from those two previous steps, I
`could determine TV in Fabio.
` MR. LANDIS: Yes.
` JUDGE HORVATH: And we -- and that -- your position
`is that is a cadence window, correct?
` MR. LANDIS: Yes, Your Honor.
` JUDGE HORVATH: That I can use to validate a step,
`correct?
` MR. LANDIS: Yes.
` JUDGE HORVATH: And if I validate a step using that
`cadence window, then I will proceed to look for and
`potentially validate a next step. So then, the question is
`does that next step, can that have a different cadence window?
` MR. LANDIS: Your Honor, I think that you can have
`different cadence windows for different cadences, but if you
`have a cadence from which the cadence window is determined,
`then you're going to be within that cadence window, so your
`step would be within that -- well, it would either get
`validated for that window or not for that window.
` I hope I'm understanding Your Honor’s question, but I
`think that once you have determined the cadence window, now
`you're going to determine whether you fall within that cadence
`of that window. Can there be other cadence windows at some
`other time that have been determined? I would say, yes, there
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`can be. But once you've determined the window, I think you're
`looking then to decide whether you're in the window or not.
` JUDGE HORVATH: Well, let me try to rephrase the
`question. I'm really trying to get an answer to a question
`which is that if I look at Claim 15, it says that a
`number of periodic human motions are detected within
`appropriate cadence windows, and the question I'm trying to
`ask is, is there anything in Claim 15 that precludes a
`one-to-one correspondence between a human periodic motion and
`a cadence window?
` In other words, can you have one, two, three
`periodic motions, and one, two, three cadence windows within
`which those motions are detected? Or do you have to have one,
`two, three periodic motions within a first cadence window, and
`then four, five, six periodic human motions within a second
`cadence window?
` I mean, is Claim 15 broad enough to accommodate both
`those scenarios or only one of those scenarios? And if so,
`which one?
` MR. LANDIS: The way I read Claim 15, Your Honor --
`and I think I understand Your Honor's question now. The way I
`read Claim 15 is that the periodic motions that you're
`detecting must be tied to the appropriate cadence window. So
`if you're looking at steps one, two, three, you need to
`determine whether they are within an appropriate window for
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`steps one, two, three. Not whether they are appropriate for a
`different window.
` So the time -- the way I read the claim is between
`the periodic motion and a particular -- and I know that's not
`the word in the claim, it's appropriate, but the way I read it
`is a particular cadence window. So I hope that answers Your
`Honor's question. I think I understood Your Honor's question,
`and I hope I just answered it.
` JUDGE HORVATH: All right. Thank you.
` MR. LANDIS: All right. Thank you. I have nothing
`further, unless you have more questions? For this time.
` JUDGE O'HANLON: None from me. Thank you.
` MR. LANDIS: Thank you.
` JUDGE O'HANLON: Mr. Koide, we'll now hear from you.
`Do you wish to reserve any time for rebuttal – sur-rebuttal?
` MR. KOIDE: Sure. I'll be reserving 15 minutes,
`Your Honor.
` JUDGE O'HANLON: Fifteen?
` MR. KOIDE: Yeah. And if I go over, I'll -- well, I
`might go over, but. And I apologize, Your Honor. Actually, I
`didn't have a printout of my notes page, so I'm going to use
`my demonstratives somewhat, but I'm going to have to go
`offline to kind of look at my notes page. And just as Judge
`Horvath, I'll refer to the demonstrative slide number for the
`judges in the room. I apologize for that.
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` JUDGE O'HANLON: You may begin when you're ready.
` MR. KOIDE: Okay. Your Honor, let me just start by
`saying I just want to briefly address three kind of
`overarching issues. I want to address what Counsel had
`discussed with you. But the overarching issues and for time
`management, I want to make sure I cover them, but I'll be very
`brief.
` The first two are issues I believe that the Panel
`probably does not want to address. I'm largely doing them to
`preserve issues on appeal, so I'm not going to go into much
`detail here. And after those three issues, I'll go into more
`of the patentable distinctions and some of the issues that
`Counsel had addressed earlier.
` First, with respect to the constitutional issue, I
`want to raise that and make it clear that it's been preserved
`in Paper 8 at 32 and 33 and Paper 11 at 18 to 19. I
`understand the Panel declined to consider that issue given the
`fact they've cited law saying administrative agencies do not
`have jurisdiction to review (indiscernible), but for purposes
`of appeal, I just want to preserve that.
` The Board institution decision was made at the time
`when -- before the Arthrex decision, so that decision should be
`set aside, respectfully. There is -- we would also take the
`position that Arthrex didn't go far enough --
` JUDGE O'HANLON: Are you making arguments
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`regarding this proceeding or a separate proceeding?
` MR. KOIDE: This proceeding, Your Honor.
` JUDGE O'HANLON: But we haven't reached a final
`decision in this proceeding yet.
` MR. KOIDE: I understand.
` JUDGE O'HANLON: How can it be --
` MR. KOIDE: I understand. I'm talking about the
`institution decision. The institution decision was made at
`the time when the Panel, pre-Arthrex --
` JUDGE O'HANLON: Do you think Arthrex addresses
`institution decisions?
` MR. KOIDE: I -- it's just our position, Your Honor.
`I understand, but -- even the final written decision in this
`case, I -- it would be our position that Arthrex didn't do
`enough to fix the issue. The fix should've been a -- just
`setting decisions aside and on congressional fix. There's no
`mechanism for meaning for you -- before the PTAB decisions,
`the Arthrex Panel, the Fed Circuit Panel that really come up
`-- we -- it's really unclear to us whether we have the
`authority to do that.
` So it raises serious questions whether the Federal
`Circuit has authority to rewrite the statute, and again, the
`only fix is to declare the statute unconstitutional.
` JUDGE O'HANLON: I don't believe these arguments are
`presented in your briefs. You seem to be expanding greatly on
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`what's contained in your briefs.
` MR. KOIDE: Well, they are, Your Honor, but in
`fairness, there's been a lot of changes, as you're aware, in
`the different panels. So I'm just making our position clear.
`I don't want to be approached by opposing counsel down the
`road saying you didn't raise it or you didn't -- so I'm just
`trying to make our position clear right now.
` Second -- the second issue is I think -- again, I
`think it's clear, but the Panel directed the parties to only
`address Claim 20. I want to make it clear, and of course, the
`Apple final written decision came out in between the time of
`the Patent Owner response and the reply. Certain arguments we
`made were predicated on the Apple final written decision not
`being finally resolved, and of course, it was.
` So I just want to make it clear that today we're not
`disputing the underlying points before this Board, but of
`course, we reserve the right to pursue any disputes of that
`decision on appeal. And so I'm not going to address any of
`those in any detail, but I just wanted to say that for the
`record.
` Third, and this is an issue that somewhat relates to
`the merits of the claim language, but Petitioner has raised a
`waiver or sometimes phrased as a collateral estoppel argument.
`That's at Paper 12 at 3 to 4. And again, this was after the
`final written decision in the Apple case. They cite --
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`they've continually said there's substantial similarity that
`was in their original petition. Again, we've made arguments
`that they didn't really flesh it out in any detail. It's not
`addressed by their expert.
` If you read the petition, Claim 20 really comes
`across as an afterthought. It's kind of tagged on, which
`it's acknowledged it was kind of tagged on to add on to that.
`They also cite Ohio Willow, which is a collateral estoppel
`case for a different test, and that's the differences between
`the (indiscernible) claims, and adjudicated patent claims do
`not materially alter the question of validity. We don't see
`them moving from collateral estoppel, they just kind of threw
`that in. So we don't think they've established or proved
`that; we don't think it should apply.
` As the Panel noted in its institution decision
`citing the Carlin Tech decision and the Panel noted at Page 8
`to 9 of its institution decision, the claim language differs
`between these claims, meaning Claim 20, which is at issue here
`and Claim 3 and 13 of the earlier Apple final written
`decision, indicating that there was a presumption that claims
`are different scope. We -- again, this has been a common
`theme, but they have never really explained the difference in
`scope, and they fault us in saying, Okay, we waive something
`supposedly.
` But they didn't prove it, they didn't rebut that
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`presumption, so it's not our duty to then point it out. So I
`don't think there's been any waiver. We note some of the
`differences in our papers. Claims 3 and 13 relate to a
`cadence and a dynamic cadence window. Claim 20 is cadence
`windows, which is previously discussed. And also, adjusting
`based on a measured cadence associated with a period human
`motion.
` And this is addressed to, again, their argument that
`there are -- we have two stories. That we somehow came up
`with one story initially and came up with another one, and we
`dispute that. I would -- I'm new to this case, I joined my
`firm recently, and so I had -- I've read these papers several
`times to get up to speed as lead counsel. And so I think the
`issue that they're trying to do is they're trying to take
`arguments -- we had multiple arguments in one statement in
`something like the Patent Owner response, and saying, Okay,
`well, it's all tied to retroactivity.
` We did not do that. We aren't making only the
`retroactivity argument, and we're also making the arguments
`related to this. And we've outlined in our papers why we
`think that's been preserved.
` JUDGE HORVATH: Could you identify where in your
`Patent Owner response that you made these arguments about
`cadence windows being plural and measured cadence requiring
`multiple cadence periods to do a -- to find a measured cadence
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`window? Where in your Patent Owner response is that argument
`made?
` MR. KOIDE: Sure. That would be at our -- Your
`Honor, Patent Owner response Pages 17 to 18. We do not state
`the word -- we don't spell it out as plural, but we are
`focusing on the single aspect. What we state there is, Fabio
`does not disclose -- this is quoting them -- I'm sorry. Fabio
`does not disclose adjusting a cadence window based on a
`measured cadence, as required by the claim language. And it's
`not spelled out expressly there, but that was the point we
`were trying to make.
` It goes on to say, Petitioner does not dispute that
`Fabio Exhibit 1006, (indiscernible) only look at the single
`prior step, and uses the current step to validate the single
`prior step. That gets into a debate about current or the
`retroactivity. Again, that wasn't the only point we were
`making, we were particularly pointing out the single step
`there.
` It goes on to say, Petitioner does not explain how
`Fabio's use of a single prior step can approximate a measured
`cadence, again, as required by the claim language. So could
`it have been more expressed? Could we have spelled it out
`more expressly? Yes, but I think it was identified there.
`And I think patent attorneys sometimes tend to convey things
`in a very compact fashion, and that was what was being
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`conveyed at that point.
` JUDGE HORVATH: If I could ask you a question about
`Claim 15?
` MR. KOIDE: Yes.
` JUDGE HORVATH: Which I asked, also, of Petitioner.
`I’d like to give you the opportunity to address that as well.
` So -- and I would like to sort of, maybe, ask it the
`way I asked it the last time to Petitioner. So I'm
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