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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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`BRAEMAR MANUFACTURING, LLC,
`Patent Owner.
`__________
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`Before PHILLIP J. KAUFFMAN, KEVIN W. CHERRY,
`MICHAEL L. WOODS, Administrative Patent Judges.
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`
`
`INFOBIONIC, INC.,
`Petitioner,
`
`v.
`
`Case IPR2017-00796
`Patent RE43767 E
` __________
`
`Record of Oral Hearing
` Held: May 1, 2018
`__________
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`JONATHAN M. STRANG, ESQ.
`Latham & Watkins, LLP
`555 11th Street, N.W.
`Suite 1000
`Washington, D.C. 20004-1304
`(202) 637-2200
`jonathan.strang@tw.com
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`
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`
`ON BEHALF OF THE PATENT OWNER:
`
`
`THOMAS A. BROUGHAN, III, ESQ.
`Sidley Austin, LLP
`1501 K Street, N.W.
`Washington, D.C. 20005
`(202) 736-8314
`tbroughan@sidley.com
`
`CHING-LEE FUKUDA, ESQ.
`Sidley Austin, LLP
`787 Seventh Avenue
`New York, New York 10019
`(212) 839-7364
`clfukuda@sidley.com
`
`
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday,
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`May 1, 2018, commencing at 2:00 p.m. at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`1:58 p.m.
`JUDGE CHERRY: Good afternoon. I'm Judge Cherry.
`Remotely will be Judges Woods and Kauffman. Will the parties please
`make their appearances?
`MR. STRANG: For Petitioner, Your Honor, Jonathan Strang,
`representing InfoBionic. With me, I have Joseph Grochowski.
`JUDGE CHERRY: Welcome.
`MR. BROUGHAN: For Patent Owner, Tom Broughan, from
`Sidley Austin. With me is lead counsel, Ching-Lee Fukuda.
`MS. FUKUDA: Good afternoon, Your Honors.
`JUDGE WOODS: Thank you. Good afternoon, and welcome
`to the Board. You're here for oral argument in connection with
`IPR2017-00796, which involves U.S. Patent No. RE43,767. I am Judge
`Woods. I am joined on the Panel by Judges Cherry and Kauffman. As
`you can see, Judge Kauffman and I are participating remotely, so we
`appreciate if you could refer to demonstratives by page numbers and the
`record by page numbers.
`We have copies of those documents in front of us. Before we
`begin our hearing, as we explained in an email communication last
`Thursday, the Supreme Court's recent decision in SAS affects this
`proceeding. Although we instituted review of all claims, we declined
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`to institute review of grounds 4 and 5 in the petition, as explained in
`our decision to institute. At that time, we were not persuaded that the
`petition demonstrated a reasonable likelihood of prevailing with
`respect to those two grounds. In light of SAS, we intend to issue an
`order to supplement our original decision to institute to include
`grounds 4 and 5. Patent Owner, if we supplement our institution
`decision to include those two grounds, do you intend to supplement
`your Patent Owner response and conduct additional discovery to
`address those additional grounds?
`MR. BROUGHAN: Yes, Your Honor, we would like to have
`an opportunity to supplement our response to address the new
`grounds.
`JUDGE WOODS: Okay, thank you. Petitioner, assuming
`Patent Owner files a supplementary response, we would anticipate
`that you would also intend to file a supplemental reply to address
`whatever might be in that response and possibly submit additional
`discovery. Is this your expectation or understanding?
`MR. STRANG: Your Honor, if they do, we would like to
`have that option, but we're content to rest on the petition. We
`recognize that the Board has already found that we didn't meet our
`burden in the first instance, with the Walker grounds, and that the
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`Board can essentially adopt the same reasoning in the final written
`decision. We see no reason for further briefing, Your Honor.
`JUDGE WOODS: Okay, thank you. Patent Owner, would
`you be interested in conducting a supplemental hearing and/or
`extending this proceeding by up to six additional months, in the
`event -- due to the supplemental decision to institute?
`MR. BROUGHAN: Sorry; one moment, Your Honor.
`JUDGE WOODS: Thank you.
`MR. BROUGHAN: If we were to go forward on the
`grounds, we would want the hearing. But, Your Honor, I think what
`I just heard was that Petitioner would be willing to have the Board
`adopt the same rationale that it advanced in its institution decision to
`deny the grounds. If Petitioner consents to that, then we don't think
`we would need to conduct additional briefing or discovery, since the
`issue would essentially be moot.
`JUDGE WOODS: Okay, thank you. Just curious.
`Yesterday, there was, I believe, a webcast involving the chief judge,
`where he addressed SAS. Patent Petitioner, were you able to
`participate in that?
`MR. STRANG: Your Honor, I observed the webcast on my
`computer, at my desk, but as far as interactive participation, no, Your
`Honor.
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`MR. BROUGHAN: I did not have the opportunity to do it,
`Your Honor.
`JUDGE WOODS: Okay. SAS is still new. We're still
`trying to get our arms around it. I think there was mention of
`possibly, maybe parties agreeing. I think that the term used was
`withdrawn, but I think if the parties would stipulate that those grounds
`which we addressed the decision to institute, if there could be some
`sort of agreement between the parties that even if -- for example, even
`if we include them in the supplemental decision to institute, if the
`parties can come to some agreement that they would be withdrawn, or
`we just simply rely on the findings and conclusions that we relied on
`in our decision to institute, that may keep us on our current track,
`regardless of SAS. Just something to keep in mind. We don't,
`certainly, need a decision right at this moment. On a related note, we
`actually have a Board meeting at 4:00 Eastern Time, right after this
`hearing, to discuss this and other issues. Rather than provide any
`guidance to the parties, please be prepared to -- stand by for an order
`from us in the coming days to address SAS in this case. Patent
`Owner, do you have anything else to add before we move on to the
`hearing?
`MR. BROUGHAN: No, Your Honor.
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`JUDGE WOODS: Thank you. Petitioner, do you have
`anything else to add before we move on to the hearing?
`MR. STRANG: No, Your Honor.
`JUDGE WOODS: Great. Thank you for your cooperation
`in helping us contend with this issue that we're still just learning how
`to deal with. Now moving on to the hearing, as we indicated in the
`hearing order, each side has 45 minutes of argument time. We also
`explained in our hearing order the Petitioner bears the burden of proof
`that the challenged claims are unpatentable, and the Patent Owner
`bears the burden on its motion to exclude.
`Petitioner will present its arguments first and may reserve
`rebuttal time. Patent Owner will then argue its opposition to
`Petitioner's case and may argue its motion to exclude, if it so chooses.
`Following Patent Owner's argument, Petitioner may use any time
`that's reserved for rebuttal. Patent Owner may also reserve rebuttal
`time, but only to reply to Petitioner's opposition to Patent Owner's
`motion to exclude. Counsel for Petitioner, do you understand that?
`MR. STRANG: Yes, Your Honor.
`JUDGE WOODS: Thank you. Patent Owner's Counsel, do
`you have any questions, or did that make sense?
`MR. BROUGHAN: We have no questions. That made
`sense, Your Honor.
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`JUDGE WOODS: Okay, terrific. With that said, Petitioner's
`Counsel, would you like to reserve rebuttal time?
`MR. STRANG: Yes, Your Honor, I'd like to reserve 15
`minutes for rebuttal, please.
`JUDGE WOODS: Fifteen minutes, got it. Okay, please
`proceed when you are ready.
`MR. STRANG: Judge Cherry, if I may approach the bench, I
`have a copy of the -- since two of you aren't here, I have two extra
`copies, if anybody would like. Thank you, Your Honor.
`JUDGE CHERRY: Thank you.
`MR. STRANG: Thank you, Your Honor. Your Honors,
`Jonathan Strang for Petitioner, InfoBionic. I said earlier, with me,
`I've got Joseph Grochowski. Go ahead and go to Slide 2, please. In
`our limited amount of time here today, I'd like to cover three topics.
`The first two, a brief overview of the 767 patent and the instituted
`grounds, and then we'll drive right into the disputed issues. I think
`the parties are pretty much of one mind that these are the three issues
`that we need to talk about today. Can we go to Slide 8, please?
`Going right to the 767 patent, right to the claims, Claim 1 is mostly
`representative. There are some differences that are relevant today
`that I'll get to later. The key points of Claim 1 I'd like to point out to
`start with are -- and all the independent claims are method claims.
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`Claim 1, like the rest of the method claims, starts off with providing
`an apparatus.
`That apparatus has three components. Of the three
`components, the first one's a remote monitoring unit, which I'll refer
`to as an RMU, a central unit, which I'll refer to as a CU, and a
`communications device, which I will not call CD, but will just call a
`communications device. I would like to point that communications
`device isn't required or forbidden from being part of the RMU or the
`CU. It's just three separate elements.
`The communications device may be in one or the other, both,
`or neither of the CU and the RMU. After providing the apparatus,
`the claim recites several method steps or several steps that are
`performed. Very briefly, as an overview, what happens in the claim
`is that the remote monitoring unit obtains some raw data from the
`patient. The RMU then analyzes that data and comes up with derived
`data.
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`The simplest to understand example, I think, is the monitor
`data could be EKG data, and the derived data would then be heart
`rate, which is derived from the raw EKG data. The remote unit then
`determines from the derived dataset -- in this example, the heart
`rate -- that communication with the central unit is required. It does
`so, for example, by comparing the heart rate to a heart rate threshold.
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`If the heart rate exceeds or falls below certain thresholds, and there
`could be other algorithms, it would then decide that the
`communication with the CU, with the central unit, is required. The
`next thing that happens is a communication link is established with
`the central unit, and then the RMU transmits an initially transmitted
`dataset to the central unit.
`The central unit analyzes that data to determine whether it
`needs some more data. There's been something detected at the RMU.
`It sends it to the CU, and it says tell me more or I don't need to know
`more. Then the last step is the central unit, if it decides it needs the
`data, it tells it when it wants the data. Dependent Claims 4 and 5 give
`us two examples of that, and they recite, essentially, give it to me now
`or give it to me later. Can we go to Slide 9, please?
`As I mentioned, all of the independent claims roughly follow
`that same pattern. For our purposes here -- and I'll discuss this in
`more detail when we get to Claim 17 -- Claim 17 recites condition
`sensed, pardon me, based on a condition sensed. If we go to Slide 5,
`please.
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`The purported improvement for the alleged invention is that it
`reduces the amount of data and the timing of the data that's sent, in
`order to reduce the data transfer time, and also the associated data
`transfer charges that you might get for requiring a bandwidth over the
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`telephone line. Slide 10, please. Having covered the patent, I'd like
`to move rather quickly through the instituted ground. The instituted
`ground, the ground that I'm going to focus on primarily, deals with the
`combination of Ferguson and Kehr, so I'm going to talk about
`Ferguson and Kehr. Can we go to Slide 13, please? Very briefly,
`Ferguson discloses sensors attached to a human patient, a base station,
`and a remote monitoring station. The terminology here is very
`confusing, so I will typically call the base station of Ferguson, I'll call
`that the RMU because that corresponds to the RMU.
`The remote monitoring station, it has that word remote in it
`that always confuses me. I'm going to call that the CU, so that I can
`keep them straight, but I'll try to disambiguate the terminology every
`time I talk about them. What's key here is that the RMU is the base
`station in the sensors, and the CU is that computer that is central, as in
`away from the patient and remote, as opposed to being remote with
`the patient. Slide 15, please.
`Similarly, Kehr, the secondary reference here, has an RMU
`with its sensors, and it obtains data. It derives data, such as heart
`rate, what have you, and then it analyzes the data; its CU analyzes the
`data and decides if it needs more information. The art is very close.
`Can we go to Slide 17, please?
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`I think that's a very important point on the combination, as we
`pointed out in the petition, and we have that here on Slide 17.
`Ferguson, the primary reference, teaches nearly every claim element,
`not all but one, and, in fact, you'll see, all but two, at most. Ferguson
`and Kehr are closely analogous art. As we promised in our petition,
`we will point out where Kehr has elements that correspond to the
`elements of the claim. Can we go to Slide 18? But we are primarily
`relying on Ferguson. As a matter of fact, it was clear in the petition,
`there were only two times that we said Ferguson could possibly need a
`modification or some sort of combination. That first time was in the
`derived dataset feature. We said, but even if Ferguson did not teach
`or suggest that well-known capability, it would have been an obvious
`modification.
`For example, Kehr teaches, and then we also pointed to some
`other teachings. Then for the transmit an hour later element, the last
`claim element, we said Ferguson, alone, and also as modified by
`Kehr, teaches this step, and then explained why that combination and
`modification would happen. Those are the instituted grounds.
`Subject to your questions, I'll go ahead and dive right into the
`disputed issues. Can we go to Slide 21, please? As I mentioned
`earlier, there are three disputed issues. The first one, the motivation
`to combine Ferguson and Kehr, is primarily focused on the
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`combination of the teachings dealing with that last claim step, that
`transmit now or later claim step. Next slide, please, Slide 22.
`We propose several different reasons to combine, but today,
`I'd like to focus on two. The first of the two is avoid interfering with
`normal telephone usage. I want to point out, at this point, as we kind
`of just give an overview, there were never any new arguments on this
`proposed motivation to combine. We said in the petition that if it
`was urgent, you'd want to send it right away, but if it was routine,
`you'd want to send it when you're not going to interfere with normal
`telephone usage. Of course, normal telephone usage includes
`telephone calls that come in and telephone calls that go out.
`JUDGE WOODS: If I may please interrupt to ask a question.
`I hope you don't mind my asking this, but I've looked at the file, so I
`had a couple questions I was hoping to get answered today, so I
`appreciate that. I see Ferguson's -- if we could refer to Ferguson's
`column 13, lines 24 to 27.
`MR. STRANG: Ferguson 24 through --
`JUDGE WOODS: Twenty-seven.
`MR. STRANG: Where it says voice communications will
`take precedence over data communications, i.e., the patient will
`interrupt a data download if he needs to make an urgent telephone
`call?
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`JUDGE WOODS: Yes. So my question is, in looking at
`your Slide 22, I understand that one of your motivations to combine
`the first one is to avoid interfering with normal telephone usage. I
`see that, and I understand the Patent Owner has argued that Ferguson
`actually discloses that voice communications won't be -- or I
`understand it or read it to possibly mean that voice communications
`will not be interfered with because a patient will be able to interrupt
`the data download if he or she needs to make an urgent telephone call.
`That's where I struggle with this first particular motivation to
`combine. Can you address my misunderstanding?
`MR. STRANG: Yes, Your Honor, two points. First, for the
`outgoing phone calls, the issue with the outgoing phone calls is you
`think back to the day when we had modems, you're going to pick up
`the phone and the data connection's going to be established. It can't
`read your mind and know that you're going to pick up the phone. It's
`going to detect that you're there. You're going to hear the squawking.
`You're going to have to hang up the phone, wait for it to drop the line,
`and then make the call. That's an inconvenience.
`The other direction is, of course, the incoming telephone calls.
`Incoming telephone calls, it's not going to know that you're trying
`to -- that someone's trying to call, unless it has, as we'll address later,
`an issue that was not brought up until the sur-reply, which was a call
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`waiting modem. The problem with the call waiting modem -- I think
`that was Slide 24, please.
`The problems with the incoming calls and the call waiting
`modem is -- and we have this on Slide 24, our slides. The top
`excerpts from Exhibit 2018, which is Patent Owner's exhibit. It
`explains that the call waiting modem requires the operator to sit there
`and wait for -- and be on a computer and wait for a popup window to
`popup and, when the popup window pops up, decide whether or not to
`accept the call or not accept the call.
`If they decide to accept the call, the data download is
`interrupted, which is also a problem with the outgoing calls. Every
`time you interrupt the outgoing data, there's no guarantee -- in fact, at
`the time, you usually dumped everything you just did, so you'd have
`to start over. Both of those are a problem, Your Honor, from the
`tying up telephone line issue.
`JUDGE WOODS: That's your understanding as to how
`Ferguson works. I read that particular disclosure and it doesn't really
`say much. I'll read it again because -- voice communications will
`take precedence over data communications. I don't know if that
`means that it already has, embedded within its system, a way of
`preventing those conflicting data transfers, as well as voice calls, or
`not.
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`MR. STRANG: We don't see that it has any way of knowing
`that you're going to pick up the phone, Your Honor. At the relevant
`time, a typical modem, if it was the land line, a typical modem doesn't
`know you're making the call. It gets interrupted. It now senses that
`it's been interrupted, and then it dumps it. Hopefully, it drops the line
`soon, but you're still going to have to hang up the line, pause, and
`wait. That's an issue, Your Honor.
`JUDGE WOODS: Okay, thank you.
`JUDGE CHERRY: Couldn't this also be seen as a suggestion
`for improvement of Ferguson, as a problem that it recognizes, that it
`tries to solve, but that there could be other solutions for?
`MR. STRANG: That's exactly right, Your Honor. You
`raised two points there. One is a modification to combine doesn't
`have to be the most obvious or the best alternative to fix a problem.
`There is a problem here, and this is an obvious solution, which is just
`call at night, when no one's using the phone. Just send the data at
`night, when no one's using the phone.
`JUDGE WOODS: Okay, thank you.
`MR. STRANG: I think we've covered the first -- can we go
`back to Slide 22, please? I think we've covered the first motivation to
`combine I wanted to discuss, which is avoid interfering with the
`normal telephone usage. I wanted to be clear that we don't need both
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`of these. Any one of these motivations to combine would be
`sufficient.
`That would move us, now, to the second motivation to
`combine, which is send the data when it's cheaper or cheaper off-peak
`bandwidth. Again, there were no new arguments presented here.
`Everything was in our petition. I lined them up right here. We
`never argued that there was any sort of dichotomy between analog and
`cellular data.
`When you're a cellular telephone customer, back at the
`relevant time, you had what was available where you were. If you
`had a major provider, any one of the household names, you may have
`had digital service, if you lived in the city, but if you lived in the
`country, you had analog service, same provider. You had dual mode
`phones, at the time. The plans were the same.
`As we pointed out with evidence in our reply brief, they were
`the same business unit, the rates were the same, so there was really no
`distinguishing between the two. As a matter of fact, one of ordinary
`skill in the art would just pick the right modem that he needed for
`where he was going to be. We'll discuss that further and show that
`modems were available that provided the flexibility that one skilled in
`the art would need to provide the flexibility a patient would need.
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`JUDGE WOODS: Thank you. If I could interrupt to ask
`one more question.
`MR. STRANG: Please, Your Honor.
`JUDGE WOODS: I appreciate that. I understand that Patent
`Owner devotes a great deal of argument to focus on this analog
`cellular or digital dichotomy you pointed out. Is there something that
`you could cite to in the original petition or doctor Stone’s original
`declaration that you could point to, to support an argument that the
`reasoning relied on in the original petition didn't rely on digital
`networks, but also relied on analog networks, or otherwise to -- that
`would be helpful.
`MR. STRANG: I think right here, on the summary sheet, we
`have a couple where we say sending a large amount of data over
`cellular connections would be expensive, especially during peak
`hours. We didn't say over digital or over analog. We said over
`cellular. Even though we cited to Cingular, which happens to have
`had some digital service, at least some digital service -- and that's out
`of Dr. Stone's declaration.
`He stated illustrating differences in rates charged by providers
`during peak and off-peak times. He wasn't saying that this was only
`digital or only cellular. He was just pointing to a provider. Again,
`Stone Declaration 113, he says or off-peak cellular connection. He
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`doesn't say off-peak analog or off-peak digital. Also, if we turn to
`Slide 25 -- and this is, granted, in the reply declaration, but it's
`pointing to what we were talking about in the original petition. Dr.
`Stone, at Paragraph 35, quotes Ferguson, at column 18, lines 63
`through 65, and states that off-the-shelf wireless technology options
`may be used for wireless transmission. One skilled in the art
`understood that you bought the modem for where you happened to be.
`You had a cellular connection. You took what was available to you,
`and that was why it was important to be flexible.
`JUDGE CHERRY: Excuse me; I have two questions. First,
`what is the level of skill in the art with this case?
`MR. STRANG: I'll need to look it up exactly, but it's not a
`modem specialist, but is, in fact, somebody who puts together medical
`monitoring devices.
`JUDGE CHERRY: In terms of the -- that was what I was
`interested in. The second thing I had wondered was does Ferguson
`give any kind of description of what kind of equipment it's using for
`this aspect?
`MR. STRANG: I don't remember if it says exactly. I have
`that quote I just said, where he uses off-the-shelf wireless. I could --
`JUDGE CHERRY: So he's using off-the-shelf technology,
`though?
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`MR. STRANG: For the wireless communication, that makes
`the most sense, yes, Your Honor.
`JUDGE CHERRY: He wasn't purporting to invent some
`special application for one kind of wireless network versus another?
`MR. STRANG: No, Your Honor. This was just you take
`your patient as you find him. If he lives in the city and has digital,
`you buy a digital modem. If all he has is a land line and no cellular,
`you're stuck with a land line, Your Honor.
`JUDGE CHERRY: Thank you.
`MR. STRANG: Now, as far as the rates, we didn't expect this
`to turn into a trial over what the rates were. We provided an
`example, as I pointed to earlier, that illustrated common rates. As a
`matter of fact, it was admitted in the patent, itself, although we didn't
`point to that and wave it around, on the petition, we did cite to it
`twice, the relevant section.
`I also would like to note that on Slide 27 of Petitioner's slides,
`Dr. Fernald, Patent Owner's expert, admitted that at the time of the
`invention, you could send data across an appropriate cellular channel
`on appropriate equipment, which covers what we just did. Then he
`further stated that it's my understanding that data, at least in cases
`we've looked at, for instance, from Cingular, would be subject to peak
`or off-peak billing rules.
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`When we were pressed on that issue, in our reply declaration,
`to show that, in fact, the Cingular data we had was representative, we
`went and found what could be found on the web archives, showing
`what was being advertised at the time. So what would one skilled in
`the art know would be the typical rates? Our Slide 28 is just some of
`the examples we found on web archive, that was archived at the
`relevant time, showing nights and weekends were, in fact, quite
`common at the time. I would also like to mention --
`JUDGE CHERRY: Yes, my plan was that way. My plan at
`nighttime was that way.
`MR. STRANG: Mine, too, Your Honor. It seemed to be a
`non-event to us. In fact, Patent Owner's Wired article, which is
`Exhibit 2014, its big complaint, it's about, quote, daytime, quote,
`cellular rates being expensive, and that's driving the cost. I don't
`think there's really any real dispute here about what happened with
`daytime rates.
`Subject to questions, I'd like to move on to the next dispute,
`the derived data element. Can we go ahead and jump ahead to Slide
`33, please? Looking at the element in the context of the claim, again,
`Claim 1 is a representative claim. The first part of the claim is
`providing the apparatus, and then we go into the steps. The easiest
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`example for me to understand and to explain is the remote monitoring
`unit obtains monitored dataset, i.e. an EKG.
`Then the remote monitoring unit calculates the heart rate from
`that and derives the heart rate. That would be the drive data. Then,
`now, we're to the point of contention, the step of contention. The
`remote monitoring unit determines from the derived dataset that
`communication with the central unit is required. I'd like to point out
`that this claim step is not when the data is transmitted, but if. The
`when the data is transmitted element is the last element, which we'll
`talk about later, or which we just got done talking about, pardon me.
`That one's different data. This is for whether or not the remote
`monitoring unit, whether or not the RMU is going to -- whether it
`determines that it needs to transmit that it found, for example, heart
`rate threshold was exceeded. Could we go to Slide 34, please?
`Quickly, to give it a flavor of the type of derived data that we pointed
`to and that Ferguson teaches, it's Slide 34, from petition page 22, we
`point to Ferguson's RMU calculating heart rate and respiration rate
`and pointed that to the derived data.
`Temperature is actually derived data. It looks up thermistor
`values. There can be other ECG analysis. If we could go to Slide
`35, please? Again, it's using the derived data to determine if
`communications are required, and it's looking at various -- it's
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`comparing the heart rate and temperature against various
`pre-programmed thresholds. Slide 36, please.
`It's a quote from Ferguson. The reason I bring out this quote
`is Ferguson's talking about these threshold violations and giving the
`examples, but those words, threshold violations, is kind of important
`because when Ferguson talks about threshold violations, it's generally
`talking about what's going on at the RMU. If we go to Slide 37,
`there's more examples of threshold violations.
`These are the type of threshold violations that can be set up.
`If we go to Patent Owner Slide 44. Sorry, Joseph, to make you
`switch. That's the very next-to-last slide in Patent Owner slides.
`They make a big deal on what's going on with this threshold violation.
`In the petition, we took the position that we know that the RMU in
`Ferguson has the ability to initiate the dialup on its own, and we saw
`that there was a threshold violation -- that there could be a threshold
`violation detected out at the CU, so we thought it was not a big leap to
`infer that it could initiate the dialup. It would say, you exceeded your
`heart rate. We're worried about you. It initiates the dialup, and then
`the physiological monitoring software detects the threshold violation
`at the CU and alerts the operator. The Patent Owner took issue with
`that argument, but that's okay because we also argued that we didn't
`rely on that.
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`Could we go to Slide 38 of our own slides, please? Pardon
`me, Slide 39, I apologize. We also stated that even if Ferguson
`doesn't teach or suggest actually deciding it needs to communicate,
`which, whether it does so now or later isn't really the issue, but even if
`it -- when it decides it needs to communicate, that well-known
`capability would be an obvious modification.
`I'm quoting from the petition. That well-known capability
`would be an obvious modification. Then we point, for example,
`Kehr's RMU analyzes the derived data by comparing it to target data,
`to determine whether to communicate.
`Then we also pointed to some background cited in Ferguson,
`at the various places, there at column 3 and column 4, and concluded
`that it would have been obvious to -- pardon
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