UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
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`NVIDIA CORPORATION,
`Petitioner,
`
`v.
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` POLARIS INNOVATIONS LIMITED,
`Patent Owner.
`_________________
`
`IPR2017-01346 (Patent 8,161,344)
`IPR2017-01781 (Patent 8,161,344)
`_________________
`
`Record of Oral Hearing
`HELD: August 17, 2018
`_________________
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`
`
`Before MINN CHUNG, DANIEL J. GALLIGAN, JOHN A. HUDALLA,
`Administrative Patent Judges.
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`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`NVIDIA CORPORATION,
`Petitioner,
`
`v.
`
` POLARIS INNOVATIONS LIMITED,
`Patent Owner.
`_________________
`
`IPR2017-01346 (Patent 8,161,344)
`IPR2017-01781 (Patent 8,161,344)
`_________________
`
`Record of Oral Hearing
`HELD: August 17, 2018
`_________________
`
`
`
`Before MINN CHUNG, DANIEL J. GALLIGAN, JOHN A. HUDALLA,
`Administrative Patent Judges.
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`
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`IPR2017-01346 (Patent 8,161,344)
`IPR2017-01781 (Patent 8,161,344)
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`APPEARANCES:
`
`ON BEHALF OF THE PATENT OWNER:
` MATTHEW C. PHILLIPS, ESQ.
` KEVIN. B. LAURENCE, ESQ.
` DEREK MEEKER, ESQ.
` LAURENCE & PHILLIPS
` 1940 Duke Street, Suite 200
` Alexandria, Virginia 22314
`
`ON BEHALF OF THE PETITIONER:
` DAVID HOFFMAN, ESQ.
` JEREMY MONALDO, ESQ.
` BEN DAMSTEDT, ESQ.
` OLIVER RICHARDS, ESQ.
` DREW GOLDBERG, ESQ.
`
` FISH & RICHARDSON
`
` 1425 K Street, 11th Floor
` Washington, D.C. 20005
`
`
`The above-entitled matter came on for hearing on August 17, 2018,
`commencing at 1:10 p.m., at the U.S. Patent and Trademark Office,
`Texas Regional Office, 207 S. Houston Street, Suite 159, Dallas,
`Texas 75202.
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`IPR2017-01346 (Patent 8,161,344)
`IPR2017-01781 (Patent 8,161,344)
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` P R O C E E D I N G S
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`
` JUDGE GALLIGAN: Good afternoon. This is an oral
`argument in IPR2017-01346 and 2017-01781. The patent at issue is
`8,161,344. Petitioner is NVIDIA Corporation. The Patent Owner is
`Polaris Innovations Limited.
` I'm Administrative Patent Judge Galligan. With me by
`video are Judges Chung and Hudalla.
` Can I please have appearances of counsel, starting with
`Petitioner. Thank you.
` MR. MONALDO: Yes, Your Honor. For Petitioner, this is
`Jeremy Monaldo representing NVIDIA Corporation. I'm joined today
`by my colleagues, Andrew Goldberg, David Hoffman, and Oliver
`Richards, as well as Ben Damstedt from NVIDIA.
` MR. LAURENCE: Your Honor, Kevin Laurence. I'm joined
`by my colleagues Derek Meeker and Matt Phillips.
` JUDGE GALLIGAN: Thank you. Okay. And according to the
`oral hearing order in these cases, we are doing a combined oral hearing
`for these two cases. Each party will have one hour of time to
`address its arguments. Petitioner may proceed first and you may
`reserve time for rebuttal not to exceed half the time.
` Would you like to reserve any time?
` MR. MONALDO: Yes, Your Honor. I would like to reserve
`at least 15 minutes.
` JUDGE GALLIGAN: 15 minutes. Okay. So I'll give you a
`warning at 40 minutes.
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` And after Petitioner presents its case, Patent Owner,
`you may present your case, and you may argue your motion to
`exclude as well and the Petitioner may reply. You may save
`rebuttal time to respond to anything in Patent Owner's
`opposition to your motion to exclude.
` And as you're going through the presentations, please
`identify particular slide numbers, pages of the record, pages of
`the evidence and such so we can all follow along. And Judges
`Chung and Hudalla have everything, but they just need you to
`identify the slides and whatnot so they can follow along and the
`record will be clear that way.
` If there are no questions, Petitioner, you may begin.
` ARGUMENT ON BEHALF OF THE PETITIONER
` MR. MONALDO: May it please the Board. Today, we're
`scheduled to discuss two IPR proceedings involving the '344
`patent: The 1346 proceeding and the 1781 proceeding. My plan is
`to start with the brief discussion of the '344 patent using our
`slides in the 1346 proceeding and then move to the grounds on the
`1781 proceeding and then transition back to the grounds in the
`1346 proceeding.
` So, with that, I'd like to move to slide 6 in our slides
`in the 1346 proceeding. You can see here on the screen Figure 1-A
`of the '344 patent. So what's this patent about? It's about
`error coding. You can see error coders here highlighted in blue.
`It's also about data arrangement alteration. You can see data
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`arrangement alteration devices highlighted in yellow. But error
`coding is well-known; it's been around forever. And rearranging
`data to improve error coding, also well-known by the '344 patent.
` So what's this -- what's supposed to be novel about the
`'344 patent? It's the fact that you have two paths with different
`error coding and this switch to select between the two paths. You
`can see this on our slide here with the green highlighting,
`showing first path, and the red highlighting showing the second
`path. That's it. Two paths in the switch. This is a very simple
`patent, very simple claims. Just adding a little bit of flexible
`to known error coding technology.
` And as our petitions demonstrate, that flexibility was
`well-known in the prior art between the (indiscernible) that show
`clearly two paths and a clear selection between them. And we have
`a combination of Raz and Wickeraad that explains why adding a
`switch between two paths would have been a trivial and obvious
`solution.
` So with that background, I'd like to jump over to our
`slides in the 1381 proceeding, starting with slide 3. But I'd
`like to take this moment just to pause and recognize that we do
`have a substantial record before us, a lot of issues. So if Your
`Honors have any questions, please feel free to let me know. I
`just want to make sure those are addressed before running out of
`time.
` JUDGE GALLIGAN: I will. Just proceed. Thanks.
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` MR. MONALDO: Okay. Excellent, Your Honor.
` So as shown on slide 6 (indiscernible), first, whether
`Yoon's data bus inversion meets the claimed data arrangement
`alteration; second, whether Polaris has proven conception prior to
`Yoon, and third, whether Polaris has proven diligence.
` As to the first issue, notably, Polaris never argues
`that DBI fails to involve data arrangement alteration.
` JUDGE GALLIGAN: Counsel, on that, what is your best
`argument and evidence that inverting a bus -- inverting data
`rearranges the data or changes the alteration of the data? What
`is the best argument Petitioner has for that?
` MR. MONALDO: Yes, we have several arguments here, and
`you'll see in our slides that all of the evidence tells you that's
`what's happening, that's what an interpretation of DBI is, a
`rearrangement of data. And you'll see -- and I'll point out --
`and I'll invite Your Honors --
` JUDGE GALLIGAN: Just for clarity, DBI -- data bus
`inversion is you take data and you flip the bits; right? A zero
`becomes a one and a one becomes a zero.
` MR. MONALDO: That's right. It's not as simple as that.
`There's some logic that goes in behind which bits you select and
`what arrangements you ultimately arrive at.
` JUDGE GALLIGAN: Okay.
` MR. MONALDO: And so I'd have you -- with that process,
`you're moving from a regular arrangement of data to an inverted
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`arrangement of data. And I'll invite Your Honors to ask opposing
`counsel about this as well. In our review of the briefing, they
`never take a definitive position on this, and they never tell you
`that DBI fails for some reason.
` And, importantly, you'll see that their experts actually
`already opined on this issue. He tells you that DBI is
`sufficient. You can see this in our slides, and I'll start with
`slide 8. This is the evidence we have on DBI. We have Yoon.
`Yoon is telling you there's DBI and explaining it's an inversion
`of data, switching from a normal arrangement to an inverted
`arrangement.
` Moving to slide 9, we have Dr. Tredennick's declaration.
`So Dr. Tredennick looked at Yoon, he looked at the disclosure in
`Yoon, the data bus inversion, and he came and he spent four pages
`in his declaration explaining why a person of ordinary skill in
`the art would have understood this data bus inversion, Yoon's DBI,
`to be a data arrangement alteration.
` Moving to slide 10, you'll also see evidence from
`Polaris's own expert, Dr. Przybylski. Consider the lower
`highlighted portion of the testimony, quote, "Selected inversion
`of data could be viewed as a data arrangement."
` Moving to slide 11, you'll see that Dr. Przybylski
`provided testimony in the 1346 proceeding, quote, "Inversion in a
`structured way where the output bits are in an inverted form of
`input bits can be viewed as a rearrangement."
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` So with this testimony, both experts agree. And Polaris
`doesn't even argue, much less bring forward competing evidence to
`explain why data bus inversion wouldn't be a rearrangement.
` JUDGE GALLIGAN: What in the intrinsic record, though,
`says that flipping bits rearranges data or I should say alters the
`arrangement of data?
` MR. MONALDO: So in the intrinsic record, there's not a
`set-forth definition of data arrangement alteration, but it is
`broadly described. There's a paragraph at Figure 4 -- we were
`discussing Figure 4 -- where he talks about any changes in the
`arrangement of data could be viewed as data arrangement
`alteration. Any change.
` JUDGE GALLIGAN: But how is altering data the same as
`altering the arrangement of data?
` MR. MONALDO: So, Your Honor, that's a great question.
`There's a lot of ways to alter an arrangement. Right? So if I
`have a bit string and I have a one, a zero, a one, and a zero, I
`could take the zero and I can move it over here and I can take the
`one and move it over here. I could achieve the same thing by
`flipping the bits. I could flip the one bit to a zero, flip the
`one bit to a one. And that's the same thing --
` JUDGE GALLIGAN: And that's fine if you have got even
`numbers of zeros and ones; right? Because then you are
`rearranging technically. But if you have got all ones and you
`change them to all zeros, that's hard to believe how that becomes
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`rearranging the data.
` MR. MONALDO: It's how -- I would contend first that
`that is a rearranging of data because you're moving from -- you
`have the same data. Everyone in the system understands it's the
`same data. You're never changing the data; you're changing how
`it's represented or how it's arranged. So if it's all zeros, it
`means one thing. If it's all ones, it means something else. And
`that's not what DBI's intended to do. It will take a string of
`all zeros and make some zeros some ones. It will just give you a
`different arrangement. So you're starting from the regular data
`and you're moving to an inverted form of the data.
` JUDGE GALLIGAN: But I'm going to point you to your
`petition in the 1781 case.
` MR. MONALDO: Yes.
` JUDGE GALLIGAN: Petition page 33.
` MR. MONALDO: Okay.
` JUDGE GALLIGAN: And on the very top of 33, the first
`sentence says, "Thus, Yoon uses DBI" -- data bus inversion -- "to
`alter data during read/write operations."
` MR. MONALDO: That's right. So when we're saying here,
`we're saying is it's altering the data. It's altering
`arrangement of the data. Alteration is part of the claim term.
` JUDGE GALLIGAN: Right. But it's data arrangement
`alteration; right?
` MR. MONALDO: That's right. It doesn't mean that the
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`data itself can't have a little bit of change. And in this
`sentence, when we're saying altering the data, we're meaning
`alterating its representation. It's --
` JUDGE GALLIGAN: Where was that argument made that it's
`altering the representation?
` MR. MONALDO: Well, so it's saying Yoon's DBI technique
`is a type for inverting or rearranging the bits of the data --
`rearranging right there. That's where the argument is made.
`We're not -- DBI wouldn't work if you're changing the data, if
`you're actually altering what the data is. That's not the intent
`of this in any way.
` JUDGE GALLIGAN: Well, but in the ADSL reference, you
`could have a reversible change of data and that would still work;
`right? Isn't that the contention of scrambling?
` MR. MONALDO: That is the contention on scrambling but I
`think that fully meets the claim limitation.
` JUDGE GALLIGAN: But that's an alteration of data.
` MR. MONALDO: Well, it's an alteration of the
`arrangement or representation of the data for sure. It's not
`changing the data. It's taking it -- it's converting it to a
`different form in a way that's understandable, in a way that can
`be brought back. Simple as that. That's what data arrangement
`alteration is. We have no --
` JUDGE GALLIGAN: So encryption could be data arrangement
`alteration even though it's changing the data and you would have
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`to have an encryption code to get it back under that particular --
`under that construction.
` MR. MONALDO: Perhaps. I haven't thought much about
`encryption. That's not before us.
` JUDGE GALLIGAN: That seems unreasonable.
` MR. MONALDO: That seems unreasonable?
` JUDGE GALLIGAN: That seems unreasonable to just change
`the data and say you can change it back and, therefore, it's a --
`you're altering the arrangement.
` MR. MONALDO: Well, I think, Your Honor -- and I
`think -- you know, I'm not sure actually an encryption -- that's
`not really before us, and I'm thinking here on the fly on that,
`but I think we're not really changing the meaning of the data.
`We're taking it and we're saying, Well, there's a different form
`of the data. It's arrangement. In one case, it's not inverted.
`In another case, it is inverted. And there's certainly
`circumstances in Yoon, as with any data, you're going to get a
`data stream that's going to have the exact same number ones and
`zeros that's coming out with the exact same ones and zeros in a
`different order, different arrangement. That's clear. That's not
`even disputed.
` And you'll see, Patent Owner hasn't argued this.
`There's no argument that DBI fails this. There's no evidence of
`record. If you look at the record, it says that Dr. Tredennick is
`telling you it's a rearrangement. Dr. Przybylski is telling you
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`it's a rearrangement. The Patent Owner statements --
` JUDGE GALLIGAN: And the concern I have is that's
`extrinsic evidence and we have to look at the patent. And I'm
`going to look at column 9 of the patent
`at line 32 talking about Figure 4. And it says that it --
`there's an output to the second data block, which comprises the
`same data.
` And I know that's not recited in the claim, but that
`might inform us as to what it means to rearrange data, and it's
`not just changing it. There's a -- there's a -- and in the claim
`itself, and it says it's the second arrangement. The claim itself
`says data arrangement alteration.
` MR. MONALDO: That's right, Your Honor. And we have the
`same data coming through DBI. It's the same. It has the same
`meaning. It is the same data, and as I mention, there's examples
`where you're going to have the same number of bits and zeros.
`We're talking about how you're changing that arrangement, whether
`you're flipping bits or you're moving around. You know, there's
`no distinction of that in the patent. It's always the same data.
`And whether you're changing it by flipping bits or moving things
`around, we see that as the same. We don't see any distinction
`drawn in the '344 patent in that in any way.
` There's also some description here. Let me find it for
`you. We presented in our slides about the data arrangement
`alteration, a broad definition that's provided whether it's
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`talking about any change in the implementation or change in the
`arrangement of data. It doesn't necessarily talk about the same
`data. It's talking about --
` JUDGE GALLIGAN: Column 10, 34?
` MR. MONALDO: Yeah, that's right, Your Honor.
` And so you can see any implementation what was made to
`change an arrangement of data such that these data will be processed
`in on optimum manner for subsequent error detraction or
`correction, that's what we have. That's DBI.
` JUDGE GALLIGAN: I understand your position. And just
`so you know, I'm focusing on the arrangement of data, altering the
`arrangement, but I understand the petitioner's position.
` MR. MONALDO: Thank you, Your Honor. And I'll just say,
`we have to look at the record that's developed here, and there's
`just no evidence to support an interpretation. Patent Owner has
`never taken that position, and their expert has taken contrary
`position in deposition.
` And so moving on, I'd like to transition to issue --
` JUDGE CHUNG: Can I --
` MR. MONALDO: Yes, Your Honor.
` JUDGE CHUNG: Counsel, . . . .
` JUDGE HUDALLA: Judge Chung, go ahead.
` JUDGE CHUNG: So, you know, you mentioned representation
`of data and the -- you know, the arrangement of data as being
`synonymous. And so let me give you an example. If -- and you
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`mention that as long as the meaning of the data stays the same,
`changing ones and zeros in the data is just changing
`representation of data or the format of the data.
` So it sounds to me that what you are arguing is that,
`given a set of ones and zeros in a block of data, let's say, you
`are meaning that, even if the composition of ones and zeros
`changed through the process, that process is just arrange --
`rearrangement of data as long as the meaning of data doesn't
`change.
` MR. MONALDO: Yes, Your Honor. And I think that is one
`interpretation that we have taken here, that the change is an
`understandable change. And if you look at the 1346 proceeding, we
`cite testimony from Dr. Przybylski himself telling you that what
`does it mean to alter arrangement of data? It's a change in
`understandable way.
` So I think, yes, that does meet the claim term under
`broadest reasonable interpretation standard, but I also say that
`our prior art in this proceeding unequivocally will have
`situations where you have the same number of ones and zeros and
`the same number -- at the input and the same number of zeros --
`ones and zeros coming out at the output. It's right there.
`That's a direct change in the arrangement of data that we're
`talking about.
` Does that answer your question, Your Honor?
` JUDGE CHUNG: Yes.
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` MR. MONALDO: Okay. Thank you.
` Any other questions at issue before I move on? I just
`want to make sure.
` JUDGE HUDALLA: Yes, Counsel, I have a question.
` MR. MONALDO: Yes, Your Honor.
` JUDGE HUDALLA: Just a moment ago, you said something
`about -- again, we're talking about data rearrangement. You said
`something to the effect that it's okay, some data can be changed
`as long as there's some rearrangement. I mean, I wanted to know
`where you got that from and where that's coming from out of the
`intrinsic record.
` MR. MONALDO: Yeah, it's just from the claim language
`itself, Your Honor. In that pass as I read it, column 10, about
`any change in the arrangement of data. And in my -- and sorry,
`I'm, you know, trying to answer the questions here to the best of
`my ability, but let me just clarify things a little bit. When I'm
`saying change in data, there's been no change in the data. The
`underlying data has always been the same in all of these processes
`we're talking about, whether it's DBI, whether it's scrambling,
`whether it's interleaving. There's no change in the underlying
`data whatsoever. Sometimes you change how it's represented, yes.
`And so maybe there's a different number of ones and zeros in the
`output as there is in the input. That doesn't matter. Your data
`hasn't changed. It's just arrangement has changed, how the
`computer sees the data. There is no change in the data itself and
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`so its arrangement has been altered.
` And like I said, we have instances in all of these cases
`where you're going to get the same number of zeros at the input
`and the output, and in that case, I think there can be no question
`that there's a rearrangement.
` Does that answer your question, Your Honor?
` JUDGE HUDALLA: I guess at this point, I understand your
`position. I'd like to hear more as we go through your evidence
`here how -- you know, I'd like you to pay attention. I think
`Judge Galligan just mentioned that a minute ago. We'd like to
`see, you know, where we're kind of departing from the original
`data and why that would still be the arrangement and rearrangement
`aspect.
` MR. MONALDO: Yeah, and, you know, I think, just to that
`point, I don't think we're ever departing from the original data.
`We have the original data. We have an inverted form of it or a
`scrambled form of it or some other form of it, but we still have
`the same data. And that's what is happening in the '344 patent,
`and it's broadly described there. They're talking about data
`arrangement, alteration on different types of data, data blocks,
`and there is mention, as Judge Galligan pointed out, that you have
`the same data, but there's also mention where you're doing this on
`just a few bits or multiple blocks.
` And so our position is that you have some input, you
`have some output. That output, the arrangement, has been changed
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`in how the computer is representing that data and how the computer
`seeing the data. The data itself has not changed; its arrangement
`has been changed.
` JUDGE HUDALLA: Okay. Thank you.
` MR. MONALDO: Thank you, Your Honor.
` So I'd like to transition to our second issue on our
`slides, and it's on slide 13 of the 1381 or 1781 proceeding. So
`as the briefing makes clear, all evidence that Polaris has that's
`alleged to pre-date Yoon is just unauthenticated here, so that
`should be excluded. Polaris submits conception evidence from
`Qimonda, but it has no testimony from the inventor or anyone at
`Qimonda.
` Now, Polaris does provide testimony from an attorney at
`the Schoppe law firm but does not provide conception evidence from
`the Schoppe law firm's file. This mismatch between the evidence
`that's been given and the testimony that's been provided is fatal.
`Remember: Polaris and their swear-behind attempt is attempting to
`seek a benefit of a swear-behind defense. To receive this
`benefit, Polaris needs and bears the burden to bring forward the
`correct evidence and make a finding that that correct evidence is
`sufficient. Here, without the correct testimony, Polaris just
`can't meet its burden.
` So if we look at the evidence -- and I'm moving to slide
`16 -- briefly, we have internal (indiscernible) and Qimonda. But
`as I mention, no one from Qimonda provided any testimony. There's
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`nothing to authenticate these emails --
` JUDGE GALLIGAN: Counsel, just one -- I didn't mean to
`interrupt.
` MR. MONALDO: Yes.
` JUDGE GALLIGAN: I know there's -- this is the subject
`of -- some of this stuff is the subject of a motion to seal, but
`you guys are just presenting stuff that's in public -- that's in
`the redacted documents?
` MR. MONALDO: That was our understanding.
` JUDGE GALLIGAN: Okay. I just wanted to be clear of
`that. Thanks. And I'll try to be cognizant of that too. Thank
`you.
` MR. MONALDO: Yes. No problem, Your Honor.
` So no one is providing testimony. There's nothing to
`establish that these emails are what Polaris claims they are.
` So moving to slide 18, we have an invention disclosure
`form from the inventor, Aaron Nygren. Mr. Nygren
`doesn't provide testimony in this proceeding either. So
`accordingly, we have another unauthenticated document. The date
`listed on the document is unproven hearsay. Polaris has no
`testimony or evidence to establish that that date is correct at
`that time and that the IDF submitted is actually in this form at
`the relevant time that's listed on the document.
` As mentioned, Mr. Stockeler, Polaris's own witness, but
`he testified that he cannot confirm the authenticity or date of
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`this document. And his testimony shown on 19 -- what's shown at
`the upper part of this slide, Mr. Stockeler confirms he cannot --
`he, quote, "cannot recall" if he saw the IDF in the 2006-2007 time
`frame. Mr. Stockeler's testimony at the lower part of this slide
`confirms that he has, quote, "no idea when it was last edited."
` With this testimony, Mr. Stockeler can't prove that this
`IDF -- the one submitted in this proceeding, the one from
`Qimonda's file actually existed in this form prior to Yoon.
` Moving to slide 20 are the final piece of evidence that
`Polaris has here that's alleged to pre-date Yoon as an instruction
`letter. Again, this is from Qimonda's files, and Polaris has no
`one from Qimonda testifying in this proceeding, no one to confirm
`that the instruction letter is what Polaris claims it is, and no
`one to testify that the date listed on the instruction letter.
` Let's take a look at the testimony that Polaris does
`have. And you can see here, paragraph 8 from Mr. Stockeler's
`declaration -- and I'm on slide 21 of our demonstratives --
`importantly, you can see that Polaris relies on the date that this
`instruction letter was sent, the date that Qimonda sent the
`letter. Mr. Stockeler can't confirm this. He didn't write the
`date. He didn't send the letter. For these reasons, this date is
`hearsay, it should be excluded, and Polaris cannot prove that the
`letter is actually sent on this date.
` And you can see that Mr. Stockeler confirmed this during
`deposition. Moving to slide 22, we have questions here. We asked
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`Mr. Stockeler where this version of instruction letter came from.
`His answer, quote, "No idea."
` Slide 23 shows similar testimony. And when I move to
`slide 24, Mr. Stockeler testified here that he does not recall
`when he was provided with the instruction letter; quote, "I cannot
`give any date about it."
` He also testified he didn't know if it was received
`prior to the holidays or after the holidays. He doesn't know if
`he saw the instruction letter before or after Yoon's filing date.
` So with this testimony, Mr. Stockeler cannot confirm the
`instruction letter, cannot prove its date, and that's hearsay and
`this all should be excluded, and it definitely doesn't meet
`Polaris's burden to prove conception.
` If there are any questions on conception,
`(indiscernible) we can move to slide 26. And so then on slide 26
`here -- I'm moving to the third issue on Yoon, and this is
`diligence. There's activities of three actors that are relevant.
`First is Qimonda; second the Mr. Nygren, the inventor; and third
`are the attorneys at the Schoppe law firm, including
`Mr. Stockeler, whose testimony we have been discussing, who was
`supervising attorney for this patent application.
` So as we'll discuss on the next few slides is the
`evidence is clear, Qimonda did nothing, the inventor did nothing,
`and that leaves only the work from Schoppe. And as we'll discuss,
`this evidence shows only six days out of a seventy-five day
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`critical period that work was done. And so with that little
`evidence, it's not surprising that Polaris has left large gaps of
`unexplained activity, completely unexplained with no evidence,
`including a gap that's at least 36 days long where there's just no
`evidence and no explanation provided at all. This lack of
`evidence -- this gap alone defeats diligence, and when you view
`that in combination with what we have several other unexplained
`gaps of work and no work from the inventor or the original Patent
`Owner, a finding of diligence simply cannot be made.
` So turning to the first of Qimonda, we have slide 27.
`This is the only evidence from Qimonda, and it's a single email.
`On this slide at the top you can see that Schoppe sent a reminder
`to Qimonda on March 9th. That's to review and to provide comments
`on the application. In response to that, at the bottom of the
`slide, you can see Qimonda's response. It was provided on March
`12th, the day the patent was filed. One email on the very last
`day, merely requesting the application be filed because it might
`have been published. That's it for Qimonda.
` If we turn to Mr. Nygren, the evidence is even worse.
`I'd like to move to slide 29. On slide 29, you see testimony from
`Mr. Stockeler confirming that Schoppe did not receive approval
`from Mr. Nygren until after they already filed the application.
`After they filed. Polaris has no evidence that Mr. Nygren took
`any action during the critical period -- nothing during the entire
`critical period.
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` So that brings me to Schoppe. And on slide 30, we have
`a timeline of activities. I'd like to walk through this timeline
`just to make sure the record is clear on this
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