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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KINGSTON TECHNOLOGY COMPANY, INC.,
`Petitioner,
`
`v.
`
`POLARIS INNOVATIONS LTD.,
`Patent Owner.
`____________
`
`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`____________
`
`Record of Oral Hearing
`Held: November 14, 2017
`____________
`
`
`
`Before SALLY C. MEDLEY, JEAN R. HOMERE, and KEN B.
`BARRETT, Administrative Patent Judges.
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`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`DAVID M. HOFFMAN, ESQUIRE
`KENNETH J. HOOVER, ESQUIRE
`Fish & Richardson
`One Congress Plaza
`111 Congress Avenue, Suite 810
`Austin, Texas 78701
`
`ON BEHALF OF PATENT OWNER:
`KENNETH WEATHERWAX, ESQUIRE
`NATHAN LOWENSTEIN, ESQUIRE
`Lowenstein & Weatherwax, LLP
`1880 Century Park East
`Suite 815
`Los Angeles, California 90067
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday,
`November 14, 2017, commencing at 1:00 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE BARRETT: Good afternoon everyone. We are on
`the record. We have today a final hearing in three cases,
`IPR2016-01621, IPR2016-01622, and IPR2016-01623, Kingston
`Technology Company v. Polaris Innovations. I am Judge Barrett. Next
`to me are Judges Medley and Homere. Let's start with the parties'
`appearances. Who do we have from petitioner?
`MR. HOFFMAN: Your Honor, David Hoffman. With me are
`my colleagues, Liz Ranks, Ken Hoover and Martha Hopkins.
`JUDGE BARRETT: Thank you. And for patent owner?
`MR. WEATHERWAX: Hello, Your Honor. Ken
`Weatherwax for patent owner with my colleagues, Nathan Lowenstein
`and Shawn Chi, and also a representative of the patent owner, Polaris
`Innovations, Brian Richardson.
`JUDGE BARRETT: Thank you. All right. The tentative plan
`today is to take these cases serially, one at a time in case number order.
`MR. LOWENSTEIN: If I may, Your Honor, Nathan
`Lowenstein. I talked to Mr. Hoffman before the proceedings and we've
`agreed to do 1623 second. I have a plane to catch. If we could do that,
`that would be most appreciated.
`JUDGE BARRETT: That's fine. So 1621 first, 1623 second,
`and then 1622 last.
`MR. LOWENSTEIN: Thank you.
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`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`
`
`JUDGE BARRETT: So we set forth the procedure in our trial
`order, but just to remind everybody how this is going to work, for each
`case each party will have 30 minutes total. For clarity of the transcript,
`please be sure to identify demonstrative pages or pages from the record
`verbally so that gets into the transcript. For all three cases, petitioner
`will go first and may reserve time for rebuttal. Patent owner will then
`have an opportunity to present its response, and petitioner can present
`its rebuttal arguments with whatever time it has remaining.
`In case 1622, that's the case with the motion to amend, patent
`owner has indicated that it feels it still may bear some burden after the
`Aqua Products decision, so I will give you whatever remaining time you
`have at the end but only to address petitioner's arguments regarding the
`motion to amend.
`I will be watching the clock and I will give counsel a warning
`when you are reaching the end of your time. As another reminder, no
`new evidence or arguments should be introduced today. Anything that
`is not already in the papers will not be considered.
`Any questions or concerns?
`MR. HOFFMAN: No, Your Honor.
`MR. WEATHERWAX: No, Your Honor.
`JUDGE BARRETT: With that, let us begin with the 1621
`case and petitioner.
`MR. HOFFMAN: Thank you, Your Honors. I would like to
`reserve ten minutes or whatever time I don't use for my rebuttal.
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`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`
`
`A brief overview of the slides, hopefully I will cover them all,
`but if I don't, this is what I intended to cover. A brief introduction to the
`'057 technology, a discussion of the Atkinson and Broadwater prior art
`patents, a discussion of the reasons to combine, then why it's obvious to
`use a diode to detect temperature with Atkinson, and then how Atkinson
`shows the refresh unit and the refresh timing unit of claims 6 and 7, and
`then lastly potentially a discussion of the patent owner's expert's use of
`what we believe was the wrong standard in evaluating the evidence.
`The '057 patent is about adjusting the DRAM refresh rate
`using the temperature of the DRAM array. In order for a DRAM
`memory to keep its contents, it has to be periodically refreshed. That
`process, how often it has to be refreshed, is related to power. The more
`you refresh, the more power you use.
`Similarly, as the temperature goes up or down, how often you
`have to refresh changes. So while at a cooler temperature, you may
`only have to refresh every once in a while. At a higher temperature, you
`have got to refresh more often or you'll lose the contents of your
`memory. And you can see that in the little exhibit from the abstract. It's
`about adjusting the refresh rate.
`What I think is most instructional about the '057 patent is what
`you see on this is slide 5. It's Figure 2 from the '057 patent. And there
`you see a chart which shows that at a lower temperature, there's a lower
`refresh rate. And then at a higher temperature, there is a higher refresh
`rate. Similarly, as you can see, there's a section of the '057 patent on
`slide 5 that shows the same thing. In one embodiment you detect that
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`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
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`temperature using a diode. Notably, while the diode is introduced as an
`embodiment, it is not described in the patent as being anything
`particularly advantageous. In fact, the patent says you could use various
`other temperature sensing devices such as a thermocouple or a
`thermistor.
`So if we look at the claims, claim 1, really it's a fairly
`straightforward claim. We have a semiconductor package including at
`least one connection pin. Pretty much every semiconductor package has
`at least one pin. You have a dynamic random access memory within the
`package. Then the two limitations really set forth what the patent is
`about, the third and fourth one. I'll jump first to the fourth one. It
`requires that the DRAM in that package be refreshed at a rate that
`decreases as the temperature of the DRAM decreases and increases as
`the DRAM temperature increases. This is the chart we saw. This is
`Figure 2. As the temperature goes up, the refresh rate goes up.
`And then secondly, the claim requires that there be a
`temperature sensor and that it be operable to produce a signal indicative
`of the temperature. Obviously needed so you can adjust the refresh rate
`up and down. And then it needs to be coupled to at least one connection
`pin such that the signal may be provided to external circuitry. Note the
`use of the “may be” there. You could choose to provide it. It just needs
`to be the pin.
`The grounds instituted are Atkinson and Broadwater for
`claim 1 and its dependents, 13 and 16. Then Atkinson, Broadwater and
`Miller for the dependent claims that use a diode. Claims 13 and 16 are
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`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
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`appreciably similar to 1. They are the other independent claims. No
`one has asserted that there's a difference in the arguments as they apply
`to claims 1, 13 or 16.
`So I would like to talk a little bit about the patents themselves.
`I think it's instructive starting with Atkinson and the old-school
`document camera. I think this is a very important figure from Atkinson.
`This is Figure 6 of Atkinson. As you can see, Atkinson identically to
`the '057 patent provides a chart which shows that as the temperature
`increases, you also increase the refresh rate. It's a little more of, I think
`they call it, an isotonic curve as opposed to a straight line. But it's the
`same general idea as the '057 patent that as the temperature memory
`goes up, so does your minimum refresh rate go up.
`And I think we are going to hear a little bit about that
`somehow the '057 solution, as I think patent owner will call it, to
`increase the refresh rate as temperature goes up was somehow a novel
`concept or a game-changing concept or against the conventional
`wisdom. But the conventional wisdom is here in Atkinson. This was
`already the prior art. And this idea of increasing the refresh rate,
`consuming more power to keep the memory going at a higher
`temperature, was already very clearly in the prior art, in the references.
`And we can, in fact, see that sort of undeniably in the
`description as cited in our brief. This is on column 7, lines 40
`through 45 of Atkinson. And it expressly describes that accordingly, it
`provided and continuously decreases as the memory temperature
`decreases and continuously increases as the temperature increases.
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`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`
`Resulting refresh signal is immediately responsive to changes in the
`memory temperature. So the idea of changing a temperature using more
`power to keep the memory refreshed at higher temperatures was very
`clearly in the prior art.
`And then when we look at Broadwater, I'll just do this briefly,
`but Broadwater adds the idea of having the external pin, provided in
`column 2 -- this is just the summary -- as a general object of the present
`invention to provide a new and improved circuit which having a thermal
`stress-sensing circuit which uses the inherent variance of the
`temperature of a transistor to produce a temperature indicative of output
`signal. And then if you look at the embodiment we cited to, this is in
`column 4, lines 31 through 33, there is an embodiment in which this
`temperature-sensing signal, much the same as the '057 patent, is
`provided to external circuitry.
`Moving back to the slides, slide 10, please, the real question
`is, is there a reason to combine the two references, because the features,
`I believe, are clearly shown in the two. And we believe that the
`evidence shows that there are very solid reasons, in fact, even
`motivations why one of ordinary skill in the art would combine
`Atkinson and Broadwater. And it's fairly straightforward. As we say,
`Broadwater is designed to prevent your chip from, in some sense the
`patent owner's expert's words, blowing up, that if it gets too hot, this
`curve eventually reaches the point where the chip melts down. One of
`skill in the art would appreciate that detecting that temperature point
`and much as Broadwater teaches turning it off before you reach that
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`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
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`thermal runaway where the chip starts to melt or catch on fire would be
`a desirable, in fact, motivational thing to do.
`And supporting this is the idea that, look, Atkinson and
`Broadwater are in the same field. It's not really even disputed. Patent
`owner's expert said in deposition that Atkinson and Broadwater are
`related, are not remote from each other. When asked under deposition
`about whether they both relate to at least reliability and power
`consumption issues, their expert said yes several times. We don't want
`the device to blow up. The '057 also deals with saving power but then
`says, yes, they are both concerned with power and reliability.
`There are reasons not just from what the experts read of the
`references being related in the same field, but also teachings in
`Broadwater explicitly that teach, as you can see in slide 11, that thermal
`stress may prevent reliable operation of chips. Thermal stress is
`overheating. That teaching that it is unwise to have your chips overheat
`and become unreliable is applicable generally to chips. There's nothing
`in Broadwater which would counsel a person of ordinary skill in the art
`away from that teaching being applicable to applying DRAMs. And in
`fact, Broadwater expressly says that it's applicable to high aircraft, used
`in aircraft with their critical systems. We cite in our brief and I believe I
`have a slide too that there's no denial that DRAM memory such as those
`you see in Atkinson would be used in aircraft and those type of
`computers. So right there is an additional reason beyond the express
`teachings of Broadwater where you find motivation to teach them.
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`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`
`
`JUDGE HOMERE: Counselor, one argument against the
`proposed combination is that the two patents, they operate in different
`states. Atkinson operates in a passive state whereas, Broadwater
`operates in an active state. What is your --
`MR. HOFFMAN: I'm happy to address that. The next slide is
`where I am. I don't think that that characterization is proper. The
`teachings of Atkinson, if I showed you, are not limited to operation in a
`suspense state. While that is the embodiment described in Atkinson, the
`teachings are generally applicable to the increasing and decreasing of
`temperature. But I think as we can see in the section of deposition cited
`in slide 11, that sleep state is not a passive state. The whole point of
`Atkinson is to -- your sleep state, you need to maintain the contents of
`your memory. Your computer is not off. It's constantly being required,
`just as it is in an active state, to refresh your memory. And if the
`temperature of your laptop begins to increase in this laptop embodiment
`although it's not limiting in that way, then the same exact process -- you
`see that it describes explicitly that it will begin to increase the
`temperature -- I mean, the frequency which increases the temperature of
`the memory. And if you have ever left a laptop in your car, which is a
`very common thing to leave electronics in one's car, applying the
`teachings of Broadwater to Atkinson prevents your computer essentially
`from catching on fire, burning itself out because Broadwater would
`advantageously shut off your computer before the continual increase in
`temperature that's being caused by heat. And then the repetitive cycle
`of continuing to up the frequency in order to keep the refresh going
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`Case IPR2016-01621 (Patent 6,438,057 B1)
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`Case IPR2016-01623 (Patent 7,315,454 B2)
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`would eventually get hotter and hotter and hotter so to damage the
`components.
`So there's nothing at all that's inconsistent between the
`embodiment of Atkinson which describes in that one embodiment a
`suspense state and the teachings of a need to protect against thermal
`runaway. But again, the more high level, Atkinson is not limited in its
`application to only -- the teachings are only applicable to a suspense
`state. In fact, it describes, as we point -- the embodiment it describes
`using technology generally and does not say that it's only applicable to a
`suspense state. That's just one embodiment.
`JUDGE HOMERE: Is there any embodiment in the reference
`that suggests that it could be used in the suspense state?
`MR. HOFFMAN: An explicit embodiment that describes it,
`there's general teachings that regard the teaching of increasing the
`temperature as -- being used generally. But do they describe an
`embodiment specifically? No. Again, embodiments are designed for
`that reason, is that we don't limit inventions to embodiments. They are
`examples. But again, either way, whether you limit it to the
`embodiment or not, the teachings of Broadwater are generally
`applicable to Atkinson and vice versa. Thermal runaway is a problem,
`as admitted by both experts potentially in either case, whether you are in
`suspend mode or you're in an actively using your computer mode
`because suspend mode is not really suspend. The computer is running.
`The computer is keeping your contents of your memory refreshed and
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`Case IPR2016-01621 (Patent 6,438,057 B1)
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`Case IPR2016-01623 (Patent 7,315,454 B2)
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`alive so that all you need to do is turn your screen back on. So it's not
`an off state.
`There's also been an argument made with regard to adding a
`pin to the device and that it's difficult to add a pin. I think it's important
`to clarify the position a bit here. No one is denying that if I took an
`actual manufactured chip sitting in my hand and tried to add a pin to it
`with a soldering iron and a pair of pliers, well, that's a difficult endeavor
`and really nobody can do that. But that's not the obviousness inquiry.
`Obviousness is about teachings, whether or not they combine the two
`teachings. And it's a design phase.
`The question is whether or not when one of skill in the art is
`designing a chip whether or not they would have it within their skill
`level to add a pin at the design phase not when everything is complete.
`And I think there really is -- and modern chips have 200-some-odd pins.
`In fact, most modern chips have extra pins that are auxiliary pins that
`aren't even used that could easily be purposed for this task. I think we
`can see on slide 14 that even patent owner's expert admitted that if you
`want to, adding a pin is not a daunting design task, something that one
`of skill in the art can easily do. It's within the skill of art of a person of
`ordinary skill.
`Slide 15, I'll move through quickly, but again, it just shows
`some of the highlights from the prior art in the deposition that show that
`applications for memory with an aircraft like Broadwater are common.
`Next moving on to the use of a diode with Atkinson --
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`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
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`
`JUDGE HOMERE: Counsel, before we move to the diode
`embodiment, would you care to address the argument regarding
`Atkinson being a single chip that has both the DRAM and the refresher
`in there. What would cause someone to go to Broadwater if you already
`have a circuit that has everything in there if you already have it in that
`one DRAM, in that one memory?
`MR. HOFFMAN: The reason to go to Broadwater is the
`additional functionality. Atkinson doesn't teach having this external pin
`to bring the temperature off so that you can shut down the circuitry in
`the event of overheating. And so what you are adding, again, Atkinson
`is a self-containing system that has what it needs. It's obviously enabled
`and everything else you would need. But this additional functionality to
`prevent thermal stress isn't there. So one of skill in the art, having
`known Broadwater, because it's a hypothetical person, who would be
`aware of this teaching and the teaching that it is desirable to avoid
`thermal events, thermal runaway, would be motivated to combine that
`feature, again, for safety, for operational ability to prevent this
`overheating.
`So first of all, just quickly, ground 2 included Miller. Miller is
`expressly identified. The Board recognized that on the institution
`decision. A POSITA would use a diode. As I said earlier, the '057
`notes no particular difference between using a diode and using other
`features. A diode is in one of their embodiments, but it describes other
`embodiments that would include a thermocouple and a thermistor as
`well.
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`Even Atkinson provides an express motivation to go off
`looking for other possibilities. It says in Atkinson expressly that there
`are numerous other devices and methods for determining the
`temperature of a main memory. That alone is a very powerful
`suggestion that you can go off and look for known things, providing a
`thermocouple and a temperature sensing integrated circuit as an
`example.
`The patent owner's expert identified a thermocouple and diode
`essentially in the same sentence. And then Broadwater even expressly
`mentions that diodes can be used to detect temperature.
`The next slide --
`JUDGE BARRETT: Counsel, you have been going almost
`20 minutes.
`MR. HOFFMAN: Yes, Your Honor. I will wrap it up very
`quickly. Petitioner's expert even identified diode as a type of
`temperature-sensing circuit. And then patent owner's expert admitted
`that diodes would have been known to Miller. The fact that they didn't
`include them is not a teaching away. It just is a -- they didn't include
`that particular example but said you could have other types of
`temperature sensors.
`And then refresh unit, I'll just sort of jump to quick, this is on
`slide 25. Atkinson expressly teaches a refresh unit. This refresh unit
`receives a signal from a thermistor. That's a temperature indicative
`signal. That thermistor -- that refresh generator then refreshes at a rate
`that is 1/RC, which is the thermistor resistance times the capacitance, as
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`the claims require. It is operable to refresh the DRAM at a rate that
`varies in response to the temperature-indicative signal from the
`thermistor. And as we saw, the refresh unit has a timing unit operable
`to do that.
`Then I'll just go through this. I'm not going to talk much. I
`don't think that the decision here rises or falls on the credibility of the
`experts. I think that the prior art is very clear. I think that there's
`enough admitted between the two experts that a decision on
`combinability is very easy. But if you are going to rely on credibility, I
`would encourage you to look at the testimony of their expert. I don't
`think he really truly understood the POSITA analysis. I think he
`thought it had to be a person that he knew, one of his students. I'd also
`encourage you generally to read the deposition. I think it wasn't enough
`room in the page limits to properly capture the basis of the expert's
`opinions, but I think it can be educational on his basis. His credibility
`does become an issue.
`With that, I'll reserve the remainder of my time for rebuttal,
`Your Honor, unless there are further questions.
`JUDGE BARRETT: You still have your ten minutes
`remaining.
`Whenever you are ready, counsel.
`MR. WEATHERWAX: Thank you, Your Honors. Good
`morning. And I would also encourage you to read the testimony of both
`experts and compare them side by side, and you can see what the
`difference is between the two experts.
`
`
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`

`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`
`
`Indeed, Judge Homere, I would like to point out, already asked
`exactly the right question at least twice. First he asked, do any
`embodiments of Atkinson at all involve anything but sleep mode? And
`the answer is undisputed. The answer was not found in the petition.
`And the answer is no. Only about sleep mode Atkinson has many,
`many embodiments, each and every one of which is confined to sleep
`mode when the system is sleeping and frozen and the system clock is
`off. So when Mr. Hoffman says that Atkinson is about a sleep mode
`that is an active mode, that's not true. The only thing that's running is
`Atkinson's self-refresh, and it's doing everything it can to reduce power
`usage. But everything else is off.
`The other question that Judge Homere asked which is another
`excellent question is why would you combine, why would you add to
`Atkinson? And their answer was for safety, to keep the DRAM in the
`laptop from catching fire. I want to point out to you, though, what
`Broadwater says, as we'll get to. He says today that if the DRAM got
`too hot, Broadwater would shut it down. You know what happens when
`you shut down DRAM? You lose all the data that you had. And
`Atkinson is not conducive to that combination and neither is any
`computer that anybody has here. That was the technology at the time.
`I was given 30 minutes. I can't cover everything in the briefs,
`but I urge you to read them. If the Court has any other questions now or
`later, please interrupt me. I'm very happy to answer them first. I would
`like to apologize also for naming a different panel. We named Judge
`Clements instead of Judge Barrett. We apologize for that.
`
`
`
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`

`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`
`
`We would like to hand the slides to the Board so they can
`follow along.
`JUDGE BARRETT: We are fine. We have them pulled up.
`MR. WEATHERWAX: So Your Honors, petitioners came at
`you with their best art and they had their ground modified by you
`sua sponte for the diode claims to add Miller. Now, we briefed that.
`We won't cover that, but we think that that was giving them a helping
`hand that they shouldn't have received.
`Now, they concede that the invention is novel. We think their
`case is an exercise in playing pretend. They pretend that most of the
`teachings that are in both Atkinson and Broadwater aren't actually there.
`They pretend Atkinson is about operating computers instead of just
`sleep mode with everything shut down. They pretend Broadwater is
`about efficient DRAM instead of keeping planes from failing in the air.
`They pretend that Atkinson needs only one small modification instead
`of many large ones in order to do the combination that they propose.
`And they pretend they have good independent expert testimony that just
`repeats word for word exactly what the attorneys say. And they also
`pretend that the unconventional results and use of the invention don't
`matter for obviousness. But they also pretend, even though they
`mentioned Miller only once in the entire petition, that they meant to
`include it all along in their combination.
`So as we'll see, we have two grounds now, 17 claims. First
`we'll address the non-diode claims very quickly. Just to quickly
`compare expert evidence, we have a 50-page detailed declaration.
`
`
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`

`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`
`There's no rebuttal testimony to it. We have petitioner who has pretty
`much abandoned his declaration. They didn't cite him today. They only
`cited him once in the reply. And if you read his declaration, you know
`why. It doesn't add anything to the conclusory argument in the petition.
`Now, I don't need to tell this to the Board. If any of Your Honors were
`listening on August 31st to Chief Judge Ruschke's Boardside chat as I
`was, you know that his number one piece of advice he gives to people
`practicing before the PTAB is don't rely on expert testimony that parrots
`the attorney's arguments because it's not persuasive. That's exactly what
`petitioner filed.
`It doesn't get better if you dig into it. He didn't apply the
`correct test. He applied the pre Arendi test where you can add anything
`routinely from common sense even at the heart of the invention, which
`is what they are doing here, we would submit. And he also has this
`strange complaint about the level of ordinary skill. As far as we can
`tell, since he's quoting a law review article, this is not the record, he
`thinks that the proper use of the person of ordinary skill when you are
`looking at the combination is to assume that he can remember all 10
`million pieces of prior art that are in the art while he's looking at the
`combination. That's not the way it works. As the Board knows, it's the
`basic skill set once you are looking at the combination. It's what the
`hypothetical person with such skill would have known and known how
`to do. And you are looking at the combination applying that level of
`skill. That's exactly what Professor Bernstein did, as he says
`specifically.
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`

`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`
`
`Now, what is their rebuttal declaration? This is their rebuttal
`declaration. It's a ghost town. It's empty. Tumbleweeds. And they
`don't get any help from that. And they have the burden of proof. It's
`not a patent owner problem. It's a petitioner problem. And they have a
`hole in their petition because the petition does not even state the level of
`ordinary skill. So it's strange for them to complain about our use of it.
`Now, the Atkinson/Broadwater combination indeed is missing
`limitations. Not only is it missing this pin to provide the
`temperature-indicative signal to external circuitry, as we said in our
`patent owner response, it's missing the signal that you can provide to
`external circuitry. We have undisputed testimony that if you wanted to
`modify Atkinson to generate that signal to provide over the pin would
`require wholesale modification of the control circuit.
`What Atkinson is generating is a pulse, a refresh pulse. That's
`not the signal indicative of temperature. That pulse goes hundreds of
`thousands of times a second. Now, even if you could provide it over a
`pin, Atkinson's generating it with an onboard circuit, its oscillating
`onboard circuit, kind of rudimentary, so that it saves power. But as just
`to go quickly, if you want to know what you need for that signal, you
`can look at claim 6. Let's go to it right now because claim 6 says that
`the refresh unit is operable to refresh the DRAM array at a rate that
`varies in response to the signal. That's the signal indicative of
`temperature being provided on the pin.
`Now, the institution decision didn't have much guidance on
`this because it was very vague in the petition. But they theorize, slide
`
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`

`Case IPR2016-01621 (Patent 6,438,057 B1)
`Case IPR2016-01622 (Patent 6,850,414 B2)
`Case IPR2016-01623 (Patent 7,315,454 B2)
`
`20, that the refresh signal in Atkinson could be that signal. That's
`because you said it closely f

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