Paper 50
` Entered: March 4, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`XILINX, INC.
`Petitioner,
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`v.
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`INTELLECTUAL VENTURES I, LLC
`Patent Owner.
`____________
`
`Case No. IPR2013-00112
`Patent 5,779,334
`____________
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`Held: January 28, 2014
`____________
`
`Before SALLY C. MEDLEY, KARL D. EASTHOM, and JUSTIN T.
`ARBES, Administrative Patent Judges.
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DAVID L. McCOMBS, ESQUIRE
`
`
`THOMAS KING, ESQUIRE
`
`
`Haynes and Boone, LLP
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`2323 Victory Avenue, LLP
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`Suite 700
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`Dallas, TX 75219
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` Entered: March 4, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`XILINX, INC.
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES I, LLC
`Patent Owner.
`____________
`
`Case No. IPR2013-00112
`Patent 5,779,334
`____________
`
`Held: January 28, 2014
`____________
`
`Before SALLY C. MEDLEY, KARL D. EASTHOM, and JUSTIN T.
`ARBES, Administrative Patent Judges.
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DAVID L. McCOMBS, ESQUIRE
`
`
`THOMAS KING, ESQUIRE
`
`
`Haynes and Boone, LLP
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`
`2323 Victory Avenue, LLP
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`
`Suite 700
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`Dallas, TX 75219
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`
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`
`
`
`
`
`
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`Case Nos. IPR2013-00112
`Patent 5,779,334
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`ON BEHALF OF THE PATENT OWNER:
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`
`GEORGE E. QUILLIN, ESQUIRE
`
`
`PAUL S. HUNTER, ESQUIRE
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`
`Foley & Lardner, LLP
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`
`3000 K Street, N.W.
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`Suite 600
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`Washington, DC 20007
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`
`
`
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`The above-entitled matter came on for hearing on Thursday,
`January 28, 2014, commencing at 2:01 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 MEDLEY: Good afternoon. This is the
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`trial hearing for IPR 2013 -00112 between Petitioner Xilinx
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`and Patent Owner Intellectual Ventures. At this time we'd
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`like the parties to please introduce co unsel starting with the
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`Petitioner.
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`MR. McCOMBS: Your Honor, I'm David McCombs
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`here on behalf of the Petitioner Xilinx, and with me is Tom
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`King and Tom will be presenting the argument today.
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`JUDGE MEDLEY: Okay. Thank you. And for
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`Patent Owner?
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`MR. QUILLIN: George Quillin, Your Honor, lead
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`counsel for the Patent Owner Intellectual Ventures. I have
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`with me at the table my partner and backup counsel, Paul
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`Hunter, who will be presenting the argument today, and
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`behind us Chris Kalafut, a colleague fr om Foley & Lardner,
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`and a representative from the client, Mr. Don Coulman.
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`JUDGE MEDLEY: Okay. Thank you very much.
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`Per the January 7th hearing order, each party will
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`have 60 minutes total time to present arguments. Petitioner,
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`you will begin with a p resentation of your case with regard
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`to the challenged claims on which bases the Board instituted
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`trial.
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`Then, Patent Owner, you will have an opportunity
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`to respond to Petitioner's case and at that time you would
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`also present your own case with respect t o your motion to
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`amend claims, and then, Petitioner, you may take the rest of
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`your time to respond to Patent Owner's presentation on all
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`issues. And then, lastly, Patent Owner, you may present
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`rebuttal, but only on those issues with respect to your
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`motion to amend.
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`So, Petitioner, you may begin, and how much time
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`would you like to reserve for rebuttal?
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`MR. KING: Your Honor, we'd like to reserve 20
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`minutes for rebuttal.
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`JUDGE MEDLEY: 20 minutes. Okay. Thank you.
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`You may begin.
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`MR. KING: Thank you and good afternoon. Your
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`Honor, we'd like to begin -- Your Honors, we'd like to begin
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`today with a technical summary of the '334 patent and of the
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`prior art at issue here, the Takanashi reference and the Lee
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`reference.
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`This is a relatively straightf orward set of claims.
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`There are two independent claims and there is a number of
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`dependent claims that are being challenged. All of these
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`claims are invalid for the same reasons. The dependent
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`claims and the independent claims all rise and fall together
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`and there are -- the petition and the response and the reply
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`briefing have narrowed the issues down to three disputed
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`technical issues.
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`First, it's whether Takanashi discloses a
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`light-shutter matrix system. The second is whether
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`Takanashi discloses equi valent switching matrices and then,
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`finally, there are issues concerning the Lee video controller.
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`I'm going to address these three issues a little bit out of
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`order. I'm going to address the Takanashi light -shutter
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`matrix first and then the issues regard ing the Lee video
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`controller second and, finally, we'll get to the equivalent
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`switching matrices.
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`So with that as a preface, I'd like to direct your
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`attention to the foam board. This is showing Claim 1 of the
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`'334 patent. Claim 1 is exemplary of the ot her claims. It's
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`exemplary of the other independent claim, at least with
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`respect to the issues that are being argued here today.
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`There are four main elements. There's a source
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`projecting parallel beams of light of different colors. That
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`element is marked in yellow. That element is -- there are no
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`disputes about that element today.
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`The next element is Element B, a light -shutter
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`matrix system comprising a number of equivalent switching
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`matrices. There are two disputes on that term. That term is
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`marked in purple. You can see roughly where that lives in
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`Figure 1 of the '334 patent and you can see the light from the
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`light sources shines through the light -shutter matrices.
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`The video controller is marked in green as Element
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`C. There's some disputes on that element. And the last
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`element, Element D, an optical combination system. That
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`takes those three light beams and recombines them into a
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`beam that's suitable for projection for humans.
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`There are no elements that are -- there are no
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`disputes about Element D. So, really, there are two disputes
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`on Element B and a third dispute on Element C, and those
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`are the only issues in the case today.
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`Mr. McCombs, would you mind switching to the
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`next foam board? This foam board shows Takanashi, Figure
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`17, and Lee, an excerpt from the Lee reference, and it shows
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`how these two references in combination render the claims --
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`in this case Claim 1, but it applies to all claims -- render the
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`claims of the '334 patent obvious.
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`And you can see, there is a light source. There's a
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`tri-color that's marked with A. You can see the light source
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`goes through a tri-color separation optical system. That's
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`what separates the light into three different light beams.
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`You can see where the light -shutter matrix system is marked
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`in purple.
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`And then in Takanashi, you can see that it has an
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`optical combination system that's marked in red, and
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`Takanashi does not discuss video controllers, but as we'll get
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`to in a few minutes, they're well -known in the art and Lee
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`discloses a video co ntroller, and that's what is cited down at
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`the bottom as Lee at 3:45 to 48.
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`So with that as a short technical summary of what
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`we're talking about today, I want to get to the issues. The
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`first issue is light -shutter matrix system, and I want to start
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`with the claim construction. This is just a convenient copy
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`of the claim construction from the record.
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`The Board's preliminary construction of
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`light-shutter matrices was a set of matrices, such as
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`monochrome LCD arrays or cells in the monochrome LCD
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`array, where each matrix comprises a rectangular
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`arrangement of elements capable of limiting the passage of
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`light.
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`The Board considered and rejected a construction
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`from IV, which was a two -dimensional array of elements
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`that selectively emit a block light. I d on't believe IV is
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`advocating for that construction in this IPR. I think there
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`were issues in the 545 IPR where they were advocating for
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`that construction, but here, if you read their response -- not
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`their preliminary response, but their actual response, they're
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`not advocating for that construction, because it doesn't --
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`this construction doesn't really make a -- which construction
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`the Board goes with, I'm not sure it makes a difference for
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`this IPR and so that's why they haven't advocated for it.
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`And from Xilinx's perspective, the Board's
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`preliminary construction is acceptable for the issues that are
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`involved in this case, and the issues here are really whether
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`Takanashi -- whether a person of ordinary skill in the art
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`would understand Takanashi to discl ose a light-shutter
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`matrix.
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`Now, before we get to Takanashi, though, I would
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`like to direct the Court's attention to what the '334 patent
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`says about light shutters and, in particular, I want to direct
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`their attention to column 4, column 4, lines 20 and 2 1, where
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`it says, there are many ways to implement light -shutter
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`devices besides LCDs.
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`Now, the '334 patent just talks about a certain type
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`of LCD. It talks about active matrix LCDs. It talks about
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`color-active matrix LCDs. It talks about monochrome -active
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`matrix LCDs, and then at the end -- but the claims don't --
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`the independent claims do not claim LCDs. They claim
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`light-shutter devices.
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`And the reason they did that was that light -shutter
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`devices are -- and light-shutter matrices are broader than
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`what is just -- than the active matrix LCDs that are disclosed
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`in the patent. They encompass more than simply what's
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`disclosed.
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`Now, Takanashi actually does disclose a liquid
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`crystal display. It's one -- so even though the patent says
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`that light-shutter devices are broader than just LCDs, we
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`don't have to get to that issue here, because Takanashi
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`actually discloses liquid crystal elements. And I want to
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`spend a few minutes looking at Takanashi Figure 8.
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`We went over a little bit -- we went over this at the
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`last hearing to some extent, but we didn't use a figure.
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`Takanashi Figure 8 shows how the light -shutter matrix
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`system in Takanashi works. The key element here is marked
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`SLM. That stands for spatial light modulator. The spatial
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`light modulator is what actually transfers image information
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`onto the light to get displayed.
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`The way that works is, this WL, the write light, it's
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`transmitted -- the write light actually has information on it,
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`but the light is not in a suitable format to be displayed up on
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`a screen, like we see here on your left -hand side, but that
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`write light has pixelated -- it's pixelated. It's arranged in
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`rows and columns.
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`JUDGE ARBES: Counsel, how do we know that
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`from the patent itself?
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`MR. KING: The patent i tself doesn't teach that, but
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`there's no dispute about that, Your Honor. As
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`Mr. Smith-Gillespie said in his responsive -- in his
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`responsive declaration, a person of ordinary skill in the art
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`would understand that write light comes from a CRT. That's
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`one example of where write light can come from.
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`CRTs are well known to work in a raster scanning
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`method and they -- they'll write out one row at a time and
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`then within that row, you have -- within that row, you'll have
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`pixels that are generated. I'm going to get to that in a few
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`moments, but that's how we know and I'm planning to walk
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`through all that evidence.
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`So the write light comes in. It strikes the spatial
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`light modulator. The spatial light modulator has two
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`elements to it. It has a photosensitiv e layer. That layer
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`receives the write light and converts that write light into a
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`charge, a charge image essentially. It's going to be here,
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`that side of the spatial light modulator.
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`The spatial light modulator also contains a liquid
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`crystal element. That liquid crystal element responds to the
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`charge, and so it arranges itself into either -- because the
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`write light is pixelated, the liquid crystal takes on a
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`pixelated shape. It responds to -- if I can just illustrate here.
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`If you had write light that was coming in with just four
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`pixels, if the write light had this shape to it with boxes
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`drawn in on the top left and on the bottom right, then the
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`liquid crystal element of the spatial light modulator would
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`take on an arrangement of elements that corresponded to that
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`image information that was be being conveyed by the write
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`light.
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`The red light is -- start the red light I, the rea d light
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`in, is just a light source. It's essentially a uniform light
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`source. It comes in. It's processed by polarizers and by
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`other elements. When it comes to the spatial light
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`modulator, light that -- if the light encounters a pixel that
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`has been -- that has been activated or a region of the liquid
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`crystal that's been activated as a pixel, then that light w ill
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`get stopped. It will not be reflected. It will just -- the light
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`will be absorbed essentially or scattered or not transmitted.
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`However, for the liquid crystal locations where
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`light has not -- or for the liquid crystal locations that are
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`transparent, the read light will come into the liquid crystal,
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`bounce off of a reflective layer behind it and then come out
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`of the system as the RLo or the output read light. That
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`output read light will then have this same shape or this same
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`image configuration that was driven by the write light.
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`Now, systems like this, like Takanashi, were known in the
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`art. They were -- Takanashi is just one example.
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`Another example that we found in response to the
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`questions that IV raised comes from the U.S. Navy. This is
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`an actual system that was described in a reference that we
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`attached to our reply brief. You can see that it has a vertical
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`resolution, a horizontal resolution and you can see that it's
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`running at 30 hertz, which means it's running at video
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`speeds. This is on e --
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`If I can zoom in. It's a little hard to read. The
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`write light in these cases is coming from, you know, a blue
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`CRT, a green CRT and a red CRT.
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`JUDGE EASTHOM: This is a system that's similar
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`to Takanashi?
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`MR. KING: This system is similar to Tak anashi,
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`that's right.
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`JUDGE EASTHOM: It seems to be the point the
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`is different because it has -- the way I understand it, maybe
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`they have an overlaid electrical grid over the same sort of
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`material, the LCD material, so I have kind of two questions.
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`Is their material one solid layer of LCD material and is the
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`reason that they're saying it's a matrix and yours isn't is
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`because theirs is sort of always a matrix because it has an
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`electrical grid laid over it, or is the electrical grid laid
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`within their system? I guess there are several questions, I'm
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`sorry.
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`If you could just tell us why theirs is maybe
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`different or the same in your contention as a matrix system.
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`MR. KING: Sure. Let me tell y ou how they're
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`different and then I'll tell you how they're the same. In the
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`system described in the patent, the active matrix LCD, there
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`are several layers that make up the entire system. One layer
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`is what I'll call the addressing layer. It's circuitry
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`essentially that is arranged in rows and columns. It's
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`typically a set of transistors and capacitors and then row and
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`column lines, and those row and column lines and transistors
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`and capacitors are what's referred to as an
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`electrically-addressed spatial light modulator. Those -- so
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`that's different than what's in Takanashi.
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`JUDGE EASTHOM: Is that overlaying the LCD
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`material itself? How does that --
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`MR. KING: So the liquid crystal material itself,
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`that goes to where they're similar. The liquid crys tal
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`material itself in both systems is continuous. It's just a very
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`thin layer of liquid crystal with no -- there's no wiring in
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`there. At least in a typical system, there's no wiring in
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`there. It's just a layer of liquid crystal.
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`JUDGE EASTHOM: And this circuitry that you
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`spoke of, how does it contact the different portions of the
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`LCD material or how does it turn on different --
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`MR. KING: So the circuitry, those capacitors,
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`when they're turned on, they take on an electric charge and
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`they create an electric field.
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`JUDGE EASTHOM: So they're just overlaying this
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`LCD material; is that right?
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`MR. KING: They're just overlaying.
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`JUDGE EASTHOM: It's another layer on top of the
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`LCD material, if you will.
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`MR. KING: Yes.
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`JUDGE ARBES: And the lig ht-shutter matrix is the
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`combination of the two then, right?
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`MR. KING: Well, no. The light -shutter matrix
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`exists as a result of the combination of the two, but the
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`light-shutter matrix -- the thing that actually is the light
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`shutter is what's in the li quid crystal, right? The addressing
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`matrix in an active matrix LCD is not a light shutter. It
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`doesn't shut light. It's typically mostly transparent, but the
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`shutter aspect is what's created in the liquid crystal.
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`JUDGE ARBES: So if I have a liquid cr ystal layer
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`by itself, that's not a matrix then. I need something else to
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`make it a matrix.
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`MR. KING: Yes.
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`We just talked about this a moment ago, but I
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`wanted to highlight this again. This I think is an important
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`admission from IV's expert,
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`Mr. Smith-Gillespie. Is the liquid crystal layer in the '334
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`and the '545 patents a continuous layer? Answer, yes, it is.
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`So the point that liquid crystal layers are continuous is not
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`disputed.
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`And one last point, if the Board is just -- one last
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`point about similarities between EASLMs,
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`electrically-addressed SLMs, and what you have in the '334
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`patent and optically-addressed SLMs, which is what you
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`have in Takanashi, I just want to direct the Board's attention
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`to page 9 of the Buckman declaration, which explai ns that in
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`practical applications both the EASLMs and OASLMs are
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`similar in that they create images out of rows and columns.
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`This is for the point that goes to Judge Easthom's question
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`or this is the record cite that goes to Judge Easthom's
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`question just a moment ago.
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`JUDGE ARBES: Counsel, how do you address the
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`Patent Owner's contention that there's a difference between
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`the system disclosed in the challenged patent which has a
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`physical nature to it? There is the liquid crystal layer and
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`something else physical that makes a matrix, and that's
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`different from Takanashi where you have the same -- maybe
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`the same liquid crystal layer, but there's nothing physically.
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`You need the write light to turn it into a matrix. How do
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`you address that argument?
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`MR. KING: Well, Your Honor, in either case there
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`is no light-shutter matrix in either an optically -addressed or
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`an electrically-addressed system. There is no light -shutter
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`matrix at all when they're turned off. Even if you have an
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`addressing matrix, that ad dressing matrix is not a
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`light-shutter matrix. If it's turned off, if you took this video
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`projector right here, which is presumably an
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`electrically-addressed system, if you took that and turned it
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`off, you would have no light -shutter matrix.
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`JUDGE ARBES: Why not? The circuitry is in rows
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`and columns just as the matrix would be.
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`MR. KING: You would have a matrix, but it would
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`be an addressing matrix, not a light -shutter matrix. If you
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`were to look at that system when it was turned off and
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`looked at the liquid crystal with a very powerful microscope,
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`the liquid crystal would not be arranged in a matrix. It
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`would be a continuous essentially random arrangement.
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`JUDGE EASTHOM: I think Judge Arbes is saying
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`that the circuit itself is arranged in a matri x, the circuit that
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`overlays the LCD material.
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`MR. KING: Yeah, there's no dispute that the circuit
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`that overlays the LCD material is arranged in a matrix. The
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`issue is, is that a light -shutter matrix or not?
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`JUDGE EASTHOM: Well, the claim calls for a
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`light-shutter matrix system, Claim 1 I guess, so the question
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`is, is that a distinction because you have a matrix overlaying
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`the LCD, so you have a matrix system, because you have
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`matrices or an array I guess, and then the light system,
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`where is the arra y, unless you turn it on? I guess you don't
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`have an array.
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`MR. KING: But once you turn it on, you do have
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`an array and from our perspective that's the light -shutter
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`matrix system. It exists when you turn it on.
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`JUDGE EASTHOM: Now, does this light act ually
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`move back and forth across the LCD in your system?
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`MR. KING: That's not entirely in the record, Your
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`Honor, but what happens is -- and I think you'll see this in
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`one of the slides that the Patent Owner is going to use.
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`What happens is the CRT lig ht beam raster scans across a
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`layer of phosphor and as the CRT touches those locations on
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`the layer of phosphor, it causes the phosphor to emit
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`photons. It's those photons emitted from the phosphor that
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`are actually striking the --
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`JUDGE EASTHOM: So the re's no question that
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`there's no matrix, unless the light is turned on. Is that what
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`you're saying?
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`MR. KING: That is what we're saying, but what
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`we're saying is there's no light -shutter matrix in any liquid
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`crystal system until it's turned on, whether it's electrically
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`addressed like the '334 patent or optically addressed like
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`Takanashi.
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`JUDGE EASTHOM: I think what we're struggling
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`with is it seems like you still have a matrix if you have a
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`circuit that's laid out in a matrix pattern. Whether or no t it's
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`on or off, it's still in a matrix pattern.
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`MR. KING: It isn't a matrix pattern, but that matrix
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`pattern isn't a light -shutter matrix. You can have something
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`in a matrix pattern that's not a light -shutter matrix.
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`JUDGE EASTHOM: And why is that, because it's
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`not turned on and that's just --
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`MR. KING: Because that circuitry, even if it's
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`arranged in rows and columns, doesn't satisfy the Court's
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`construction, which is being an arrangement of elements
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`capable of limiting the passage of light. Tha t circuitry is not
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`by itself capable of limiting the passage of light.
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`JUDGE EASTHOM: Wait, you're saying that their
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`own patent doesn't satisfy our definition?
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`MR. KING: No. What I'm saying is that their own
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`patent doesn't satisfy that definition unti l it's turned on.
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`Once it's turned on, it does satisfy that definition.
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`JUDGE EASTHOM: Oh, I see. So you're focusing
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`on the fact that it doesn't block light or it does block light.
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`MR. KING: When it's turned off, the liquid crystal
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`elements aren't arranged in the matrix and the addressing
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`elements can't block light. So neither one of them by
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`themselves when it's turned off is a light -shutter matrix.
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`JUDGE ARBES: But, counsel, the specification of
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`the '334 patent doesn't speak about this device bec oming a
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`light-shutter matrix when it's turned on. It either is or it
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`isn't, right?
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`MR. KING: I actually don't think the specification
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`-- the specification of the '334 patent uses the word
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`"light-shutter matrix" as a broadening term. I don't think the
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`'334 patent addresses that issue, Your Honor. The question
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`is how would a person skilled in the art read the term
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`"light-shutter matrix" in the context of -- in the context of
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`what's in the specification, and that issue has been decided
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`and I don't think it's being seriously contested, right? That's
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`the claim construction that we have.
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`And you're right, the '334 patent does not disclose
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`specifically what type of light shutter -- you know, where
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`the metes and bounds of a light -shutter matrix is that it
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`includes art, but it does suggest that it's supposed to -- it's
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`intended to be a broad term.
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`JUDGE ARBES: But wouldn't a person of ordinary
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`skill in the art reading this patent interpret light -shutter
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`matrix system to be something physical, a physical stru cture
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`that exists? It's either -- that structure is either a
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`light-shutter matrix system or it's not. It doesn't depend on
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`some other signal coming in or out. The structure is a
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`light-shutter matrix or not.
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`MR. KING: I think in the context of -- I mean,
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`that's a very sensible discussion for mechanical devices, but
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`this isn't a mechanical device, right? This is liquid crystal.
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`It's almost a unique type of material, and a person of
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`ordinary skill in the art I think would understand what liquid
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`crystal is. They would understand that liquid crystal takes
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`on -- has properties that are very different from other
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`materials that people work with in the chemical arts, and
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`they would understand that liquid crystal has to have an
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`electrical field applied to it to either emit or block light.
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`And I think they would understand that it's not like
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`you have a mechanical shutter that opens or closes with
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`liquid crystal that -- you know, if you have a camera shutter
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`that's turned off, you have a shutter there. You kn ow what I
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`mean? There's a shutter. If you have a camera that's turned
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`off, that shutter is there. If it's turned on, you still have a
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`shutter there. That's not true. That's not the case with
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`liquid crystal, right?
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`Liquid crystal doesn't take on a sh utter, certainly a
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`shutter matrix aspect until some kind of matrix electric field
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`is applied to it. But once it does, once it does, there is a
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`physical matrix in the liquid crystal. Once it's turned on,
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`there's a physical matrix and that's true of either the
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`optically-addressed or the electrically -addressed systems.
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`JUDGE ARBES: One of the questions, if we can go
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`back to the disclosure of Takanashi for a second. Is it
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`possible in Takanashi because it doesn't explicitly disclose
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`pixelation, as you say, is it possible to have a non pixelated
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`write light coming in? Is that within the scope of the
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`disclosure of Takanashi?
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`MR. KING: Yes, that would be within the scope of
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`disclosure of Takanashi.
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`JUDGE ARBES: Okay. How do we know tha t
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`that's not really what Takanashi is, would teach to a person
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`of ordinary skill in the art?
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`MR. KING: I think Takanashi would teach that to a
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`person of ordinary skill in the art, but the reason why
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`Takanashi still renders the patent obvious is because
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`Takanashi indisputably teaches the CRT to a person -- or
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`suggests the CRT arrangement to a person of ordinary skill
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`in the art. So even if Takanashi is compatible with the --
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`with what I'll call a more continuous image, it also suggests
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`to a person of ordinary skill in the art that it would normally
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`be used with a CRT.
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`So unless there's any further questions on that issue,
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`I'm going to move on to the Lee video controller. So the
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`issue here, of course, is that Dr. Buckman corrected his
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`testimony regardin g the Lee video controller. I want to
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`show you where that is. That is in Exhibit 2010, page 38,
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`lines 8 through 15. He said there is a -- he's discussing Lee.
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`He says, There is a controller for the light modulator part of
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`the system and instead of item 19, it's items 20 and 21. That
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`is where that testimony was corrected. I'll put that back up.
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`The fact that Lee items 20 and 21 are a video controller, I
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`don't think that -- that's not contested at this point, right?
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`The issues here are whether Dr. Bu ckman --
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`whether it's fair for Dr. Buckman to correct his testimony.
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`And I want to show you a timeline of what happened in this
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`case that explains that IV had the opportunity to rebut this
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`testimony and chose not to.
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`So you can see from this timeline th at the petition
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`was filed in January of last year. The Institution decision
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`was issued in June and then
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`Dr. Buckman was deposed in August, and that's where he
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`gave that testimony I just showed you, changing where he
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`corrected his testimony to identify Le e 20 and 21 as being a
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`video controller. That was almost two weeks be fore Patent
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`Owner filed their response, and Patent Owner did not
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`address that testimony. He did not contest whether Lee 20
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`and 21 were a video controller or not.
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`JUDGE ARBES: But, coun sel, what the Patent
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`Owner is responding to in that response is the petition and
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`the Board's decision to institute a trial, not necessarily the
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`deposition testimony later, right?
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`MR. KING: Well, no. I think the Patent Owner's
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`response has to respond to the deposition testimony they
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`took. That's why they take the deposition testimony is so
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`that they can test the issues in the case as put forward by the
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`expert.
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`JUDGE ARBES: What if they had not deposed
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`Dr. Buckman?
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`MR. KING: If they had not depose d Dr. Buckman,
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`then we wouldn't be in this situation, but I think it would be
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`-- you know, the issues would -- it would be a different
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`analysis.
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`JUDGE ARBES: But in that case they would be
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`responding to what was in --
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`MR. KING: In that case they would only be
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`responding to what's in the petition. They would be doing
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`that at their own risk, right? That would be a decision that
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`they made.
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`And so if we were in a situation here, like we have
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`here, where an expert realized that there was a mistake in
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`their testimony and corrected it in a reply declaration, where
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`there had been no opportunity or where the Patent Owner
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