Trials@uspto.gov
`571-272-7822
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`Paper # 71
`Entered: December 28, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`FITBIT, INC.,
`Petitioner
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`v.
`
`VALENCELL, INC.,
`Patent Owner.
`
`__________
`
`IPR2017-00319
`Patent 8,923,941B2
`
`__________
`Record of Oral Hearing
`Held: December 11, 2020
`__________
`
`
`Before BRIAN J. MCNAMARA, JAMES B. ARPIN, and
`SHEILA F. MCSHANE, Administrative Patent Judges.
`
`
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`571-272-7822
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`
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`Paper # 71
`Entered: December 28, 2020
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`FITBIT, INC.,
`Petitioner
`
`v.
`
`VALENCELL, INC.,
`Patent Owner.
`
`__________
`
`IPR2017-00319
`Patent 8,923,941B2
`
`__________
`Record of Oral Hearing
`Held: December 11, 2020
`__________
`
`
`Before BRIAN J. MCNAMARA, JAMES B. ARPIN, and
`SHEILA F. MCSHANE, Administrative Patent Judges.
`
`
`
`
`
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`
`
`
`
`IPR2017-00319
`Patent 8,923,941B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`
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`SAM STAKE, ESQ.
`Quinn Emanuel Urquart & Sullivan, LLP
`50 California Street
`22nd Floor
`San Francisco, California 94111
`415-875-6600
`samstake@quinnemanuel.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JEFFREY R. BRAGALONE, ESQ.
`Bragalone Conroy, PC
`2200 Ross Avenue
`Suite 4500 W
`Dallas, Texas 75201
`214-785-6671
`jbragalone@bcpc-law.com
`
`
`
`The above-entitled matter came on for hearing on Friday,
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`December 11, 2020, commencing at 11:02 a.m. EST, via Teleconference.
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`IPR2017-00319
`Patent 8,923,941B2
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`P-R-O-C-E-E-D-I-N-G-S
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`11:02 a.m.
`JUDGE ARPIN: Good morning. This is a telephonic hearing for
`the remand of IPR 2017 00319. I am Judge Arpin. I am joined today by
`Judge McNamara and Judge McShane. We have a court reporter on the
`line.
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`And I'd like to address the court reporter first. This will be a
`relatively brief hearing. Please do not interrupt the presenters to ask
`questions, unless the questions are essential to the clarity and integrity of the
`record. At the end of the hearing I will try to remember to ask you if you
`require any clarification from the presenters. Please save any non-essential
`questions until then.
`Is that clear, Court Reporter?
`COURT REPORTER: Your Honor, it is.
`JUDGE ARPIN: Second, I would like to ask the parties for a roll
`call. I'd like to ask you to please state the name of any presenter at today's
`hearing. Spell that person's name, and give your firm's name and address.
`Petitioner?
`MR. STAKE: Good morning, Your Honor. This is Sam Stake
`from Quinn Emanuel, for the Petitioner Fitbit, Inc. And this is Quinn
`Emanuel at 50 California Street.
`JUDGE ARPIN: Please spell your name, Mr. Stake.
`MR. STAKE: It's S-A-M, and then, S-T-A-K-E, and we're at 50
`California Street in San Francisco.
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`IPR2017-00319
`Patent 8,923,941B2
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`
`JUDGE ARPIN: Thank you very much. Sorry to get you up so
`early this morning.
`Patent owner, would you please identify your presenters for today's
`hearing?
`MR. BRAGALONE: Good morning, Judge Arpin. This is Jeff
`Bragalone, that's B-R-A-G-A-L-O-N-E, and I'm with Bragalone Conroy.
`And we are located at 2200 Ross, Suite 4500 West, Dallas, Texas. Zip
`code is 75201.
`JUDGE ARPIN: Thank you, Mr. Bragalone.
`Each party will have 15 minutes to present its case at today's hearing.
`Because Petitioner bears the burden, Petitioner will go first. Petitioner may
`reserve time for rebuttal. Patent owner will then follow. If Petitioner
`reserves time for rebuttal, Petitioner's rebuttal will follow, followed by
`Patent Owner's rebuttal.
`If Petitioner does not reserve time for rebuttal, each party will simply
`have 15 minutes to present its case. I will try to advise you when you are
`about ten minutes into your time, and when you are entering whatever time
`you have reserved for rebuttal. If the panel asks many questions, we will
`take that into account in enforcing the clock. That said, you should keep
`aware of the clock yourselves.
`Now, some instructions specific to this hearing. The Patent Owner
`has raised objections to Petitioner's briefing, and has submitted a one-page
`factual listing of those objections. Petitioner has submitted a one-page
`factual response. We have taken those objections under advisement, and
`will not be ruling on those objections today.
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`IPR2017-00319
`Patent 8,923,941B2
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`For the benefit of the Court Reporter, each presenter should identify
`himself the first time he speaks. The judges will try to identify themselves
`when they ask a question. Please speak clearly and into your telephone
`receiver. Please ensure that you are in a quiet environment. Please mute
`your phone when you are not presenting. And please, do not interrupt the
`other presenter for any reason.
`If you have an objection, save it for when it's your turn to present.
`If you do not have a turn to present, then please make sure that we are aware
`that you wish to make an objection before we adjourn the hearing.
`Next, a special instruction with respect to the abbreviation API,
`when you mean Application Programming Interface, please use that term.
`When you mean Application Specific Interface, please use that term. If it's
`necessary to use the abbreviation API, please make sure you're clear of the
`context in which you're using it. The judges will try mightily to do the
`same.
`
`Are there any questions? Petitioner?
`MR. STAKE: No, Your Honor, thank you.
`JUDGE ARPIN: Patent Owner?
`MR. BRAGALONE: No, Your Honor. Thank you
`JUDGE ARPIN: Okay, Petitioner, you have 15 minutes. Would
`you like to reserve any time for rebuttal?
`MR. STAKE: Yes, please. Could I, please, reserve three
`minutes?
`JUDGE ARPIN: Three minutes. If you will give me one second
`to set my timer, I'll let you know exactly when you can begin.
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`IPR2017-00319
`Patent 8,923,941B2
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`
`You may begin, Petitioner.
`MR. STAKE: Thank you, Your Honor. Sam Stake from Quinn
`Emanuel for the Petitioner, Fitbit, Inc. Thank you for this opportunity to be
`heard today.
`I'd like to leave time for Your Honor's questions, but first I'd like to
`jump right into the heart of the matter by looking at the questions from the
`Federal Circuit to the Board on remand. Then I'd like to go to the crux of
`Fitbit's response to those questions. And along the way, I plan to address
`the balance of those arguments throughout their briefing, that Fitbit has done
`something wrong in addressing these questions. I'd like to start by turning
`to slide 11 of petitioner's demonstratives.
`Do Your Honors have that in front of you?
`JUDGE ARPIN: Yes, Counsel. This is Judge Arpin.
`MR. STAKE: Thank you, Judge Arpin. Here we see the scope of
`this Federal Circuit remand, that the Federal Circuit affirmed the Board's
`explained construction of application specific interface, vacated the Board's
`decision that Claim 3 is not unpatentable, and remanded for determination
`the patentability in light of the cited references.
`And the scope of the remand on Claims 4 and 5 is very similar.
`The Federal Circuit also vacated before its decision that Claims 4 and 5 were
`not unpatentable, and remanded for determination of patentability,
`correcting the dependency that Claim 4 should be dependent upon Claim 3.
`And the Federal Circuit gave additional guidance.
`And on slide 8 of Petitioner's demonstratives, we see that the Federal
`Circuit observes that the board's narrowing construction of application
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`IPR2017-00319
`Patent 8,923,941B2
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`specific interface, as compared to Fitbit's proposed construction, they have
`no significance. Whereas, here, the claim's application specific interface
`performs the same function as an application programming interface, i.e.,
`enabling a particular application to utilize data and from hardware. On
`remand, the Board may consider this aspect.
`And on September 4th, I appeared before Your Honors, along with
`Mr. Bragalone, and presented Fitbit's position that this should be the scope
`of the remand. Mr. Bragalone advocated for a narrower scope.
`And when we turn to slide 12, we see that the Board directed Fitbit,
`along the same line of the Federal Circuit agreement. We see that the
`Board directed Fitbit to address the patentability of claims -- this is on slide
`12. We see that the Board directed Fitbit to address the patentability of
`Claims 3 to 5 on the grounds presented in the petition.
`Namely, the obviousness of Claims 3 to 5 under two different
`combinations, Luo, Craw and Wolf; and Mault, Al-Ali and Behar. And we
`also see the specific question that the Board authorized Fitbit to address,
`whether the narrowing construction of application specific interface has any
`significance.
`JUDGE ARPIN: Counselor.
`MR. STAKE: And right here --
`JUDGE ARPIN: I'm sorry, this is Judge Arpin.
`Quick question. In our instructions for briefing, we asked you to, if
`you were pursuing the rejection of Claims 4 and 5 under the combination
`Mault, Al-Ali and Behar, if you were pursuing that, we asked you in your
`briefing to explain how you were dealing with the inconsistency between the
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`IPR2017-00319
`Patent 8,923,941B2
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`rejection of Claim 3 over the combination, including Lee, and of claims 4
`and 5 over the combination, including Behar. I saw nothing in your
`briefing.
`Are you dropping any challenge based on that last combination?
`MR. STAKE: We are, Your Honor. Yes, we are.
`JUDGE ARPIN: Thank you. This is Judge Arpin. Please
`proceed.
`MR. STAKE: Okay. And right here, in this second question, we
`have the answer to that question I posed of whether Fitbit did anything
`improper in its briefing. Because we answered this question head-on, of
`whether the Board's narrowing construction has any significance, as well,
`and in doing so, address the patentability of Claims 3 to 5, under the petition
`draft.
`
`And turning to the merits, I'd like to turn to Slide 6. Here we see
`Claim 3, and that says Claim 1, we're in a serial data output, it's parsed out,
`such as an application specific interface, API, and utilized the physiological
`information and motion-related information for an application. And we
`see, I believe, the sole disclosure description of the application specific
`interface in the specification.
`An application specific interface can utilize the data as required for a
`particular application. And on slide 7, when we turn to the constructions,
`what's striking is that they're extremely similar. And the Federal Circuit
`was correct that they address and they require the same function, which is
`that the Board construed application specific interface to require an
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`IPR2017-00319
`Patent 8,923,941B2
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`interface, which enabled a particular application utilized data obtained from
`hardware.
`Fitbit had proposed that the construction of application specific
`interface should include at least an application interface that's specified how
`some software components should interact with each other. It's the same
`function.
`When we look at the context of the claims, what we're talking about
`here is the hardware generating a serial data output, the interface receiving
`that serial data output, and then processing it to enable the application on
`that device to utilize the data.
`Now, Fitbit posed this function as specifying how the software
`components should interact with each other, such as the applications on the
`device.
`JUDGE ARPIN: Counselor.
`MR. STAKE: How it interacts with the --
`JUDGE ARPIN: Counselor, this is Judge Arpin again. In Apple's
`petition, Paper 2 at page 14, Apple stated API's meaning Application
`Programming Interfaces, are thus characterized by their broad applicability
`to different applications, and not quote-unquote "application specific as
`such."
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`How do we reconcile that language from Apple's petition with the
`arguments you're making here today?
`MR. STAKE: Good question. And the answer is twofold.
`First, we have the constructions here that Apple similarly proposed,
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`and that, I believe, is where the focus should be. But second, there is no
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`IPR2017-00319
`Patent 8,923,941B2
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`contradiction, as we'll see in Craw, between an interface that is both
`application-specific, in that it enables particular applications to utilize data in
`from hardware. And, one that can broadly interface with different
`applications.
`And here, a critical observation of the Board's construction is that it
`has no negative limitation. It requires only an interface which enables a
`particular application to utilize data, which is not specified that no other
`applications may be enabled.
`JUDGE ARPIN: Counselor, this is Judge Arpin again.
`Is it then your position that an application programming interface is
`broader and encompasses an application-specific interface, or that an
`application programming interface is different, but overlapping with an
`application specific interface?
`MR. STAKE: I believe it's closer to the latter, but turning to -- I
`think this will become clear. I believe it's the latter.
`That application programming interfaces can be, and often are, as we
`see in Craw, application specific. And critically, on slide 9, Valencell's
`own expert, from the Federal Circuit's opinion, Valencell's own expert
`collapsed the difference between these two software components.
`Dr. Pollonini testified that his understanding that the term
`application specific interface, as used in the 941 patent, is the same as a
`commonly understood application programming interface, that's known in
`the art. Yes, it's basically the same.
`And he testified, addressing exactly that portion of the specification I
`showed Your Honors, which is on slide 10, but his interpretation of this
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`IPR2017-00319
`Patent 8,923,941B2
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`section is that it essentially defers to an API, even if it's used as application
`specific interface.
`JUDGE ARPIN: Counselor, this is Judge Arpin again.
`But didn't the Federal Circuit say that that was incorrect? Didn't the
`Federal Circuit say that the construction that Apple had proposed in its
`petition was not correct, and that the Board's construction was correct?
`And that those two constructions are different.
`MR. STAKE: That is correct, Your Honor. And the Federal
`Circuit did point out that application specific interface is narrower. And
`the critical thing here is that an API can be application specific. And that's
`what we see in the Craw reference.
`And I really want to keep the focus on the Craw reference, because
`it's dynamite. It's on slide --
`JUDGE ARPIN: Counselor, you're at ten minutes now, so please
`proceed.
`MR. STAKE: I only have a couple more minutes.
`Slide 13, we see exactly what Fitbit has cited from Craw, which is
`that data dictionary in Craw based outside of --
`MR. EASTON: I'm sorry to interrupt, Judges, and Counsel, looks
`like Judge McNamara disconnected. Stand by, let me get the judge back.
`JUDGE ARPIN: Counselor, I have paused your time.
`MR. STAKE: Thank you, Your Honor.
`(Whereupon, the above-entitled matter went off the record at 11:19
`a.m. and resumed at 11:19 a.m.).
`JUDGE MCNAMARA: This is Judge McNamara.
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`IPR2017-00319
`Patent 8,923,941B2
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`
`JUDGE ARPIN: Thank you, Judge McNamara. We paused the
`time while you were off the phone, so we're going to resume. If Counselor
`for petitioner is still ready, this is Judge Arpin, you may proceed.
`JUDGE MCNAMARA: Did you hear my question? Let me ask
`you that?
`JUDGE ARPIN: I don't think he did, Judge McNamara. Why
`don't you go ahead and ask the question before I start the time.
`JUDGE MCNAMARA: Okay, great.
`The question was, had to do with the fact that the Federal Circuit has
`construed the term application specific interface. It doesn't strike me as
`particularly helpful to be looking to distinguish application programming
`interface from application specific interface. The Federal Circuit has told
`us what construction we're going to use.
`And so I'm just suggesting that for efficiency, Petitioner direct his
`arguments to that specific issue.
`MR. STAKE: Will do, Your Honor. And that's where I'm going
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`next.
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`JUDGE MCNAMARA: Okay, thank you.
`MR. STAKE: That's well taken.
`Turning to slide --
`JUDGE ARPIN: Please proceed.
`MR. STAKE: Okay, thank you, Judge Arpin.
`Turning to slide 13, I'm going to address exactly how the Craw
`reference meets that construction by the Board. And it's the data
`dictionary.
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`IPR2017-00319
`Patent 8,923,941B2
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`The data dictionary interface in Craw in paragraph 256. The data
`dictionary, the active interface for managing, extracting and displaying
`information from binary information streams. This paralleled exactly
`what's in the '941 patent. We have the receipt of binary information
`streams from the health monitoring device. We have the processing of that
`data, and the managing, extracting, and displaying of information critically.
`And where is that displaying? It's in the particular applications that
`are disclosed in Craw, namely this other key, Figure 9(a), we see displayed
`health parameters, like blood pressure and heart rate. This is all in the
`petition. This is all in the petition for Claim 3.
`And that's enough to demonstrate obviousness. But even if it
`wasn't, on slide 14, we have in paragraph 48, we have the teaching that, to
`me, reads just like that portion of the specification that we saw in the '941
`patent, that the data dictionary may act on the received information,
`depending on the goal of the application. So even if we required more of
`the Federal Circuit's constructions—require some tailoring—it's in there.
`It's in paragraph 48, which was in the petition for Claim 3.
`And finally, on slide 16, this panel, this honorable panel, reached the
`same conclusion in reviewing Craw. This is a companion IPR on Claims
`14 to 21, on substitute claims that included an application specific interface.
`And this panel rejected those claims in light of Craw. That was in light of
`other paragraphs of Craw, but those paragraphs mirror exactly what's in
`paragraph 48.
`JUDGE ARPIN: Counselor, this is Judge Arpin. You're into your
`rebuttal time. I'm going to allow you to wrap up now because we had that
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`Patent 8,923,941B2
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`delay and you will get your full rebuttal time of three minutes. So if you'd
`like to wrap up now.
`MR. STAKE: Yeah, I'll just take 15 more seconds.
`Which is to say, that, here we have the fact that the design of the
`software -- this is in paragraph 5 of Craw -- the design of the software
`residing on the medical devices, is also dependent on the subset or subsets of
`physiological data or clinical outcomes that the medical device processes
`and communicates.
`And it's that communicating, which depends on the goals of the
`application. So we have parallel language and parallel reasoning. At a
`minimum, this is persuasive evidence that the Board came to exactly the
`right conclusion about Craw, as did the Federal Circuit, as did Fitbit.
`Thank you, that's all I have.
`JUDGE ARPIN: Counselor, your time is up now.
`I will ask my colleagues whether they have any additional questions
`at this time.
`JUDGE MCSHANE: No.
`JUDGE MCNAMARA: No, from Judge McNamara.
`JUDGE ARPIN: Thank you very much.
`Petitioner, you will have the three minutes of rebuttal time.
`Patent Owner, are you ready to proceed?
`MR. BRAGALONE: Yes, Your Honor. This is Jeff Bragalone.
`JUDGE ARPIN: All right. You will have 15 minutes to present
`your case.
`Would you like to reserve any rebuttal time?
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`Patent 8,923,941B2
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`MR. BRAGALONE: Your Honor, if possible, I'd like to reserve a
`minute of rebuttal time.
`JUDGE ARPIN: Certainly. I have my timer ready.
`You may begin whenever you are ready.
`MR. BRAGALONE: Thank you. Apple's petition as to the
`construction of Claim 3 relied entirely on its argument that Claim 3 had a
`typographical error. Realizing that the petition itself doesn't present any
`arguments under the correct construction, Fitbit is now attempting to offer
`new arguments, but that's not appropriate on remand.
`Turning to slide 2, the Federal Circuit affirmed this Board's
`construction of application specific interface, and agreed with your
`reasoning that an application specific interface, API, is directed to a
`particular application, rather than broadly to different applications.
`JUDGE ARPIN: Counselor, this is Judge Arpin.
`Just for clarification, we're talking about slide 2 of Patent Owner's
`demonstratives. Correct?
`MR. BRAGALONE: Thank you, that's correct, yes.
`Because that petition did not include arguments that these claims
`were unpatentable under what we now know is the correct construction, this
`Board found that it was quote, "not persuaded that Petitioner has shown by a
`preponderance of the evidence that Claim 3 is rendered obvious." But the
`Federal Circuit disagreed that this was enough, and essentially faulted the
`Board for doing what I used to do in high school algebra. I solved a
`problem in my head, wrote down the correct answer, but didn't show my
`work.
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`Patent 8,923,941B2
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`However, this isn't the case where the Federal Circuit said that the
`Petitioner was deprived of its due process or APA rights, whereby Fitbit
`might be permitted to make additional arguments. Instead, this remand is
`an opportunity for the Board to explain in more detail why Apple's petition
`fails to demonstrate that Claim 3, under the proper construction, is
`unpatentable on quote, "the grounds presented in the petition." It's not a
`remand to direct the Board to change its answer or to evaluate arguments
`that the petition simply didn't make, as to the application specific interface
`of Claim 3.
`Turning to slide 3, Apple's petition never contends that the prior art
`discloses an application specific interface. Instead, the petition asserts that
`the prior art discloses generic application programming interfaces, which
`Petitioner's expert testified are, quote, "characterized by their broad
`applicability to different applications," and, Your Honor, references in his
`question to Petitioner, and not application specific, as such.
`The example that the petition gives, one is Lee, which discloses the
`use of the Bluetooth application programming interface. Now, as we all
`know, and as slide 4 illustrates, Bluetooth is the very antithesis of an
`application specific interface. It is a generic application programming
`interface that allows connections in data-sharing between an infinite variety
`of applications and devices, and we've illustrated some on slide 4. In
`contrast, you might look at AirDrop, which is an example of a more
`application specific interface, as it is restricted to permitting data-sharing
`only between two Apple devices.
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`IPR2017-00319
`Patent 8,923,941B2
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`
`Now slide 4, going on to slide 5, shows how the Petitioner asserts
`that, like Lee, Craw is a generic application programming interface.
`Petitioner's expert testified that Craw's dictionary provides interfaces to
`access all types of definitions, and provides the developer with a generic
`mechanism to handle definitions that might come from connected devices,
`such that Craw's stream tables provide a generic interface that is used by any
`software project. Again, this is the antithesis of an application specific
`interface.
`Turning to --
`JUDGE ARPIN: Counselor.
`MR. BRAGALONE: Yes?
`JUDGE ARPIN: Counselor, this is Judge Arpin. I asked a similar
`question to Petitioner's counsel.
`Do you see an application programming interface as encompassing
`application specific interfaces, overlapping, or having shared application
`programming interfaces and application specific interfaces? Or are these
`two totally different things?
`MR. BRAGALONE: Your Honor, we believe they're different
`things, entirely. An application programming interface is generic, and it is
`designed so that anyone with that application programming interface, can
`also code an application that will interface with the device.
`The perfect example is Bluetooth. It is not specific to any
`particular application. In contrast, as this specification discloses,
`application specific interface is not generic. It doesn't accept all comers.
`It is specific to a particular application.
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`IPR2017-00319
`Patent 8,923,941B2
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`
`And so we believe that's the distinction. It is the distinction that
`this Board made in its reasoning for the claim construction, and it's exactly
`what the Federal Circuit affirmed.
`JUDGE ARPIN: Counselor, this is Judge Arpin again.
`Then how are we to read the Federal Circuit's instruction that it may
`not be significant that our construction was correct, but that the art shows an
`application programming interface? How are we supposed to address that?
`MR. BRAGALONE: Well, first of all, the Federal Circuit did not,
`and could not find as a matter of fact, that an application specific interface
`performs the same function as an application programming interface,
`because those factual findings in an IPR were committed exclusively to this
`Board when we decided the many cases for that opposition. Instead, the
`Federal Circuit remanded the case to this Board, to determine whether the
`arguments in the petition demonstrate that an application programming
`interface performs the same function as an application specific interface.
`And even if you were to infer that the Federal Circuit's factual
`assumption was premised on a comment from Valencell's expert, you have
`to recall that at the time that Dr. Pollonini testified, Claim 3 was not even
`instituted. He was not offering a construction on that term. And as the
`Board correctly already found, that should not be given any weight.
`In fact, the Board declined to give any weight to the testimony of
`either expert, as to the commonality of a generic application programming
`interface, and that that would be the same as an application specific
`interface, because it found that that was contrary to the intrinsic record,
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`IPR2017-00319
`Patent 8,923,941B2
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`which is the case here. So we don't believe that there was a basis for that
`assumption that the Federal Circuit made.
`Turning to slide 6 --
`JUDGE MCNAMARA: Counsel, this is Judge McNamara.
`I have a question here, because the Federal Circuit was pretty clear
`on what application specific interfaces, as used in the claim, is supposed to
`mean. And whether it was called an application programming interface in
`the petition, or the evidence was directed to what was believed to be an
`application programming interface in the petition, the fact of the matter is,
`an application specific interface is as construed by the Federal Circuit, and
`the question is whether or not -- and the Federal Circuit was specific about
`this -- whether or not our construction has any significance at all.
`And so, I don't really care whether it's an API, or whether it had
`application programming interface, or an application specific interface. We
`have a construction, and the question is has this -- the question for me is
`whether or not the Petitioner has shown that the references perform that
`function.
`MR. BRAGALONE: Yes, Your Honor. I understand and I agree
`that that is the focus here. And we believe, and we presented in our papers,
`that the petition does not disclose or explain how a generic API would
`perform the same function as an application specific interface.
`JUDGE MCNAMARA: We heard the Petitioner talk about Craw.
`We heard the Petitioner talk about the data dictionary, and how the data
`dictionary can be specific to various things. So my question is, why isn't
`that good enough? All it has to do is to meet the Federal Circuit's
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`IPR2017-00319
`Patent 8,923,941B2
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`construction, which is enable an application to utilize data obtained from
`hardware. That's a pretty broad construction.
`MR. BRAGALONE: So, first of all, Judge McNamara, Petitioner
`misstated and misrepresented what Craw actually says, and what the Petition
`relies on. The Petitioner relies on the data dictionary, and only the data
`dictionary as articulated in paragraph 256 of Craw.
`It does not include the interpreter, which is different and separate.
`And they misstated when they said that the dictionary actually extracts this
`information. Instead, it's the interpreter that is referred to as doing that.
`The Petitioner cannot identify only the data dictionary as being the generic
`application programming interface, and then come back for the first time on
`remand, and say, “Oh, it's the interpreter,” or, it's, as we noted in slide 8, the
`new references to Figure 9(a) and paragraphs 203 and 208 of Craw. Or the
`interpreter, as I mentioned, which is disclosed only in paragraph 48 of Craw.
`The interpreter is not the data dictionary.
`So this argument is different from before, and Craw, the petition,
`does not articulate how Craw would perform the functions of an application
`specific interface.
`JUDGE ARPIN: Counselor, this is Judge Arpin. You're about 11
`minutes into your time.
`MR. BRAGALONE: Thank you, Your Honor. May I have just --
`I'll go ahead --
`JUDGE ARPIN: You have another three minutes.
`MR. BRAGALONE: Thank you.
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`IPR2017-00319
`Patent 8,923,941B2
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`So we've seen in slide 8 how the references to Craw that are new,
`that are now cited as supporting this, actually contradict what was stated in
`the petition. Because in the petition it said that Craw was not application
`specific, as such. That's a quote from the only expert evidence the
`Petitioner presented on this point.
`And if you turn now to slide 9, they still, even if you were to look at
`this evidence, those challenges don't actually satisfy Fitbit's burden of
`showing that they do not give unexpected results, this combination. Fitbit
`never asserts, much less proves with evidence, that the substitution of an
`application specific interface for an application programming interface,
`would yield predictable results.
`Which is not surprising since you couldn't substitute any application specific
`interface with Bluetooth, and still have Bluetooth work. That is a generic
`application programming interface.
`Instead, what Fitbit does, is they argue that the burden of proof
`somehow moved to Valencell, to show unexpected results. But Fitbit's
`only support for this argument is an overlapping range case, and that case
`deals with a presumption of obviousness, and a burden-shifting frame.
`This case is clearly not an overlapping range case, so Fitbit always
`had the burden of showing unexpected -- no unexpected result, and it fails to
`meet that burden.
`Now briefly, slide 10 shows why they never explained how -- why
`(audio interference) the skilled artisan, made this combination. Similarly,
`there's no supporting evidence for the combination, because none is in the
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`IPR2017-00319
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`petition. These were not articulated as ever showing an application speci
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