Trials@uspto.gov
`571-272-7822
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`Paper # 23
`Entered: December 3, 2020
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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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`MARVELL SEMICONDUCTOR, INC.,
`Petitioner,
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`v.
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`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`IPR2019-01349 and IPR2019-01350
`Patent 7,016,676 B2
`____________
`
`Record of Oral Hearing
`Held: November 12, 2020
`____________
`
`Before JAMESON LEE, KEVIN F. TURNER, and MICHELLE N.
`WORMMEESTER, Administrative Patent Judges.
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`571-272-7822
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`Paper # 23
`Entered: December 3, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MARVELL SEMICONDUCTOR, INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`IPR2019-01349 and IPR2019-01350
`Patent 7,016,676 B2
`____________
`
`Record of Oral Hearing
`Held: November 12, 2020
`____________
`
`Before JAMESON LEE, KEVIN F. TURNER, and MICHELLE N.
`WORMMEESTER, Administrative Patent Judges.
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`IPR2019-01349 and IPR2019-01350
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`HARPER BATTS, ESQUIRE
`JEFFREY LIANG, ESQUIRE
`Sheppard, Mullin, Richter & Hampton LLP
`379 Lytton Avenue
`Palo Alto, California 94301
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JAMES ETHERIDGE, ESQUIRE
`JEFFREY STEVENS, ESQUIRE
`Etheridge Law Group
`1100 Queensborough Boulevard, Suite 200
`Mt. Pleasant, South Carolina 29464
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`
`
`
`The above-entitled matter came on for hearing on Thursday,
`November 12, 2020, commencing at 1:00 p.m. EDT, by video/by telephone.
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`P R O C E E D I N G S
`- - - - -
`OPERATOR: This is the IPR hearing. IPR 2019-01349 and 01350.
`You may begin.
`JUDGE LEE: Yeah, Alex, I only see one counsel. Should I be
`seeing both sides?
`ALEX: Since it is on active speaker, as they speak they will pop up. I
`see both counsels on the Webex portion. And they will appear as they
`speak.
`JUDGE LEE: Okay, thank you. Good afternoon everyone. This is
`the consolidated oral hearing for IPR2019-01349 and IPR2019-01350. The
`Petitioner is Marvel Semiconductor Inc. and the Patent Owner is Uniloc
`2017 LLC. The involved patent is Patent 7,016,676 B2. The involved
`claims are claims 1 to 3 and 5 to 9.
`I am Judge Jameson Lee joined by Judges Kevin Turner and Michelle
`Wormmeester. Before we begin I would like to thank you all for your
`flexibility in conducting this hearing via video today. Given this is a
`departure from our normal practice, we start by clarifying a few items.
`First, our primary concern is your right to be heard. If at any time
`during the proceeding you encounter technical difficulties that
`fundamentally undermine your ability to adequately represent your client,
`please let us know immediately, for example, by contacting the team
`member who provided you with connection information.
`Second, for the benefit of the judges and opposing counsel, as well as
`the court reporter, please identify yourself when you begin your argument,
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`and speak clearly into your microphone. Please do not speak when others,
`such as the judges are speaking.
`Third, we have the entire record including demonstratives. When
`referring to demonstratives, papers, or exhibits, please do so clearly and
`explicitly by slide or paper number. Please also pause a few seconds after
`identifying it to provide us time to find it. This helps the preparation of an
`accurate transcript of the hearing.
`Finally, please mute yourself were not speaking. Please bear in mind
`the purpose of the oral hearing is to present your case based on the
`arguments and evidence of record. You may not introduce new evidence or
`arguments. Each party will have 75 minutes of total argument time.
`Petitioner and Patent Owner may each reserve time for rebuttal.
`Petitioner will go first and present its case. Thereafter, Patent Owner
`will argue its opposition to Petitioner's case. And if there is any rebuttal
`from Petitioner, we will hear it after Patent Owner's opposition. Finally, we
`will hear Patent Owner’s sur-rebuttal if requested.
`I will endeavor to provide each party with a five minute warning
`during opening arguments, and a two-minute warning during rebuttal and
`sur-rerebuttal. Please also note that the arguments raised during rebuttal and
`sur-rerebuttal must be in response to the arguments raised by the opposing
`party. Neither period should be used to initiate new arguments.
`Before we begin, let me ask counsel to stay online after we complete
`the oral hearing, because the court reporter may have some questions that he
`or she will like to clarify with counsel. So don't hang up immediately when
`we adjourn.
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`Let's get the parties’ appearances now. Who is appearing on behalf of
`Petitioner?
`MR. LIANG: Good morning, Your Honor. This is Jeffrey Liang with
`Sheppard Mullin, and with me in the same room, socially distanced, is lead
`counsel Harper Bats.
`MR. BATS: Thank you.
`JUDGE LEE: And who is here for Patent Owner?
`MR. STEVENS: This is Jeffrey Stevens appearing on behalf of
`Uniloc 2017, LLC. I'm with Etheridge Law Group. I'm lead counsel and
`will be presenting today.
`JUDGE LEE: Thank you. Petitioner, would you like to reserve some
`time for rebuttal?
`MR. LIANG: Yes, Your Honor. I would like to reserve 30 minutes.
`JUDGE LEE: 30 minutes. So you have a total of 75. So you can go
`for 45 minutes and then you will start to eat into your rebuttal time.
`MR. LIANG: Yes, that's correct.
`JUDGE LEE: Patent Owner, do you want to reserve any time for sur-
`rebuttal?
`MR. STEVENS: Yes. I would like to reserve 30 minutes also.
`JUDGE LEE: Okay. Are there any other preliminary questions
`before the arguments actually begin?
`MR. STEVENS: Yes.
`JUDGE LEE: Go ahead.
`MR. STEVENS: Yes. This is Jeff Stevens for Patent Owner. I notice
`we have a phone user. And earlier there was some noise coming from the
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`phone user. I don't know if it's possible to mute that or who that is.
`Anyway, just an issue I guess to be aware of if it comes up. There we go.
`JUDGE LEE: Oh yeah, the parties should know we do have the audio
`public line. I think you already know that. There is nothing that I can see
`that is confidential in this case, but I don't think anyone on the public line
`can actually say anything or make any noise that would come through. They
`should all be muted. Okay. If there is any problem we'll see.
`You can begin Mr. Liang anytime you're ready. It's 1:07 right now.
`MR. LIANG: Thank you, Your Honors. I would like to start with our
`slides which are Exhibit 1017 in the 1349 proceeding, slide 2 in particular.
`We are dealing with two proceedings in this hearing, that is the 1349
`proceeding and the 1350 proceeding. In both, one obvious ground is based
`on Sherman and another ground is based on Shellhammer. There's no
`dispute that the prior art in these proceedings teaches radio interfaces
`standards. Sherman teaches the same two standards that the ’676 patent uses
`in its embodiments. And Shellhammer teaches the same two standards that
`Uniloc is accused in District Court.
`Slide 3. The parties’ disputes have largely focused on the second step
`of the wherein clause in claim 1.
`Slide 4. There are only a few remaining disputes. Other than step
`two, Uniloc disputes whether claims 6 and 7 are satisfied. Both of those are
`challenged in the 1350 proceeding. Uniloc doesn't dispute whether any
`other claim limitations are met.
`Slide 5. The institution decision found that Shellhammer teaches step
`two based on the record of that time. The factual record has not changed.
`Uniloc has not submitted any evidence on obviousness. It did not submit an
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`expert declaration. It made the strategic decision not to cross-examine Dr.
`Roy, and it didn't submit any exhibits regarding obviousness; its one exhibit
`relates to priority date.
`And so therefore, I would like to start with Shellhammer today and
`discuss Shellhammer. And then afterwards I will turn and explain why
`Sherman provides an independent basis for defining the claims obvious.
`JUDGE LEE: Mr. Liang, I -- you can go in whatever order you like,
`but before you actually go down that route, I would like to note that it
`appears that Sherman might not be applicable prior art under Dynamic
`Drinkware because I understand under that case, in order for Sherman to get
`the provisional date, the Petitioner would have to establish that at least one
`claim of the Sherman reference is supported by the Sherman provisional. I
`didn't find anything of that sort in the petition. So I just wanted to let you
`know what's in my mind. But you can go ahead and talk about things in
`whichever way -- order you like.
`MR. LIANG: Yes, Your Honor. Yeah, I -- let me think about that. I
`don't believe that issue was briefed by the parties. But I will try to address
`that in this hearing. But I would like to go ahead and start with
`Shellhammer then if that's all right with you.
`JUDGE LEE: Sure. Sure.
`MR. LIANG: So if we go to slide 38, Shellhammer teaches a wireless
`coexistence technique for 802.11 and Bluetooth. In particular it teaches that
`an access point controls alternating access for 802.11 and Bluetooth devices
`so that they can interoperate while they are in close proximity with each
`other. And as I stated before, Patent Owner has not disputed that 802.11 and
`Bluetooth are radio interface standards.
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`Slide 39. In Shellhammer, the access point divides every 802.11
`beacon time period into three intervals. We've illustrated that in the
`annotated figure shown in slide 39. On the left slide in the red, the first
`interval is for 802.11 PSP transmissions. And PSP here stands for power
`savings mode. The second interval called the NAV period is for Bluetooth
`transmissions. It's highlighted here in the annotations in blue. There is also
`an optional third interval for 802.11 communications in continuously aware
`mode, also called CAM or CAM.
`Slide 40. The petition relies on an embodiment without that optional
`third interval. Shellhammer teaches that we can eliminate the third interval
`if mobile units do not operate in continuously aware mode. And Dr. Roy
`explained the motivation to apply this teaching and his citations are at the
`bottom of this slide.
`Slide 42.
`JUDGE LEE: Can I interrupt you?
`MR. LIANG: Sure.
`JUDGE LEE: You don't just rely on this embodiment, right: I think
`you probably talked about the other one as well. So when you say you relied
`on this, it's not like exclusively on this; is that correct?
`MR. LIANG: That's correct, Your Honor.
`JUDGE LEE: So that means if for some reason the other embodiment
`with the CAM session doesn't work, I mean, you're falling back on this. It's
`not like your petition only presented this embodiment for consideration; am I
`correct?
`MR. LIANG: That's correct, Your Honor.
`JUDGE LEE: Okay.
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`MR. LIANG: Slide 42 --
`JUDGE LEE: Will you be able to -- this is Judge Lee again. Will you
`be able to explain something about the embodiment with the CAM session
`because obviously there may be some issues there and that's why you want
`to fall back on this one. But I'm more interested now in whether there is
`sufficient showing if you rely on the other embodiment.
`MR. LIANG: Right. So if we go to slide 39, you're referring to the
`embodiment where there is a continuously aware mode third interval.
`JUDGE LEE: Yeah, and what is the issue with this embodiment?
`MR. LIANG: We don't believe there is an issue. So as explained in
`the petition, this embodiment does meet -- it does meet the claims. There is
`a third interval after the Bluetooth interval, but the claims don't actually say
`what happens after the -- and so for example, if you actually jump to the
`claim slide 42, Uniloc disputes whether step two is met here. And step two
`for this ground and slide 42 Shellhammer balance would require that the
`control station renders the frequency band available for access by stations
`working in accordance with the second radio interval standard, which here
`would be Bluetooth, as stations working in accordance with the first
`standard do not request access of the frequency band. That first standard
`here would be 802.11.
`So Shellhammer teaches this and the claim doesn't require or preclude
`or say anything about what happens after the Bluetooth stations get their
`turn. So we included the reliance on the -- in the explanation why a
`POSITA would have been motivated to follow Shellhammer's teaching that
`you don't need the third interval. But the claims are satisfied either way
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`regardless of whether there is a next -- an additional interval after this claim
`step is performed.
`JUDGE LEE: Yeah, I wasn't quite sure I understood Patent Owner’s
`argument. The CAM stands for continuous aware mode. Is it possible that
`they meant if it's continuously aware it can't be turned off and therefore there
`is something with your -- some problem with your addition? Because the
`CAM means the 802.11s can never be turned off.
`MR. LIANG: I don't believe there is -- I don't believe there is
`evidence in the record supporting the fact that those -- that CAM devices
`cannot be turned off. They definitely are not transmitting during the other
`phases. Now whether they are listening is a different matter. But again, the
`claim doesn't preclude other devices from listening or being on but not
`transmitting.
`I think Shellhammer teaches that you have these three intervals and in
`the first interval, only the PSP devices are transmitting. In the second
`interval only the Bluetooth devices are transmitting. So I wouldn't assume --
`JUDGE LEE: What does continuously aware mode actually mean?
`MR. LIANG: So my understanding of it --
`JUDGE LEE: I'm just trying to figure out -- I'm just trying to figure
`out what they are arguing. I'm sorry, but you are here so I'm asking you.
`Could that mean it has to be continuously aware and therefore it cannot be
`turned off?
`MR. LIANG: Yeah, my understanding of it is that those devices are
`continuously listening. All right. So they are not -- my understanding of it
`is they are continuously listening. That doesn't mean they are continuously
`transmitting.
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`JUDGE LEE: I see.
`MR. LIANG: So they are on, but they're not speaking. They are just
`aware. So they're listening. And I think that is one of the reasons that Dr.
`Roy explained why a POSITA would have been motivated to not use it, to
`follow Shellhammer's teaching that yeah, you can eliminate this third
`interval because the other two standards, and this is explained in his
`declaration, that the other two standards more naturally fit together because
`they are both directed towards low powered devices, low powered mobile
`units. So you have 802.11 power savings mode and you are trying to save
`some power here, and you have Bluetooth which is also a low-power radio
`interface standard. So those two naturally go together.
`So it was a motivation that a POSITA would have had to follow
`Shellhammer's teaching and not use the continuously aware mode. But that
`being said, even if a POSITA did use that mode, I don't think that is
`precluded by the claims. And we had included in the petition, this
`explanation that you don't need that third mode because it definitely
`simplifies the analysis, and lets you focus just on the mechanisms of PSP
`and Bluetooth that are at issue for step two.
`JUDGE LEE: Thank you. I understand now. Thanks. Go ahead.
`Thank you.
`MR. LIANG: Okay. Thank you. So if we continue that to slide 43,
`Shellhammer begins with an 802.11 PSP interval and that --
`JUDGE TURNER: Everyone, this is Judge Turner. I'm not seeing --
`MR. LIANG: I'm sorry --
`MALE VOICE: I'm not seeing Judge Wormmeester's side.
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`TECH: We don't, yeah. I was working on that. But she shows as
`connected. Judge Wormmeester, can we --
`JUDGE TURNER: Oh, there she is.
`TECH: Your video just turned. Were you able to hear everything
`Judge Wormmeester?
`You're still muted. You are still muted, Judge.
`JUDGE WORMMEESTER: I was able to hear. Thank you.
`TECH: Thank you.
`JUDGE TURNER: Okay. Sorry about that.
`MR. LIANG: Okay then, if we are all online, then I will proceed.
`Slide 43. Shellhammer and this begins with 802.11 PSP and that's
`shown in the red. And if you look on the right side, the quotation that we
`have here, the highlighted portion, Shellhammer explains that once all the
`PSP mobile units receive their packets, that AP may optionally send a global
`CTS signal that shuts down all the 802.11 communications for a NAV
`period.
`Bluetooth devices then transmit during the NAV period that's shown
`in the blue here. And therefore, Shellhammer here is teaching that the band
`is made available for Bluetooth during the NAV period once there are no
`longer any pending transmissions from 802.11 PSP devices.
`Slide 44. Shellhammer also teaches that the duration of its time
`intervals, including the 802.11 PSP and Bluetooth intervals depends on the
`traffic characteristics application needs. As Dr. Roy explained, if no 802.11
`PSP devices request access and there are no 802.11 transmissions, then
`based on Shellhammer's teachings, it would've been obvious for the AP to
`send the CTS signals based on these traffic characteristics.
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`The CPS signal in turn ends the 802.11 interval and renders the
`frequency band available for access by Bluetooth stations. This is explained
`in Dr. Roy's unrebutted expert testimony including for example in the 1349
`proceeding, his declaration paragraphs 262 to 264. And the institution
`decision held on the same record that is before the Board today that
`Shellhammer gives strong support for the Petitioner's obviousness
`contentions. And therefore, Shellhammer renders step two obvious.
`JUDGE LEE: I have a question. It's Judge Lee. To what extent do
`you really need obviousness here? Because on your slide 43, what you
`highlight is when the PSP MU's receive their packets, you're going to shut it
`all down. So why is that not already disclosing when there is no more you
`relinquish control to the other one. I'm just wondering what caused you to
`have to resort to obviousness.
`MR. LIANG: We definitely agree, Your Honor, that the teaching is
`strong. As you are aware, we have very limited space considerations. So
`just to be safe we presented it as an obviousness ground and supported this
`with additional explanation and testimony from Dr. Roy.
`JUDGE LEE: I know. You don't say that it's already there. But I'm
`just reading this and it could arguably say, well, it's already disclosed
`because what you highlight says when all the PSP MU's finish, i.e. there is
`no more, then you shut it all down and give it to the other side. So that --
`MR. LIANG: Yes, I agree.
`JUDGE LEE: So you mean it could be there. It's just you didn't
`develop that avenue. You just went straight to obviousness.
`MR. LIANG: Yeah, I definitely -- I think you are correct, Your
`Honor. And yeah, we -- yes, that's correct.
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`JUDGE LEE: Okay, thank you.
`MR. LIANG: Okay. In slide 45, Uniloc offers seven unsupported
`attorney arguments in response to Shellhammer. These are addressed in the
`reply. I don't believe that Uniloc really argued these in its surreply. But if
`there is any particular arguments the Board would like to discuss, I would be
`happy to do that. If not, we could just hit a few examples of starting with
`slide 47.
`MR. LIANG: So slide 47, it highlights an underlying problem with
`several of Uniloc's arguments and that Uniloc is applying an improper legal
`standard. Here Uniloc speculates there may be an alternative design to
`Shellhammer's express teachings. But under Federal Circuit case law
`including Novartis and Mouttet it would be improper to require proof that a
`POSITA would have selected Shellhammer's teachings over these
`hypothetical alternatives because in this proceeding we have Shellhammer's
`expressed teachings the interval directions are not preset and we have Dr.
`Roy's unrequited testimony about why a POSITA would have found it
`obvious to apply these teachings. And whether there are hypothetical
`alternatives that might exist is simply irrelevant to obviousness.
`JUDGE LEE: Yeah. Maybe I can suggest this. We've read all the
`papers. We understand the seven arguments. But more in our mind are the
`issues surrounding claims 6 and 7. So if you want to continue down
`Shellhammer's path, can you focus your time discussing claims 6 and 7?
`MR. LIANG: Certainly, Your Honor. In Shellhammer, for claim 7 --
`or claim 6, we presented a challenge based on Sherman and claim 7 the
`challenge is based on Shellhammer. So since we were already talking about
`Shellhammer, I will start with claim 7.
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`So going to slide 54, Uniloc disputes whether limitation 7B is met.
`That's highlighted here in this slide. In particular, the part of limitation that's
`of interest is the part that discusses that duration -- so halfway through this
`wherein clause -- that duration and type of control of the radio interface in
`accordance with the second radio interface standard is determined by a
`further station and transmitted to the control station. Well, how does this
`work?
`Slide 55. These ’676 patent provides minimal explanation. The
`onlydescription is in nine lines at the top of column 6 and those are shown
`here in slide 55. (Inaudible) says is it possible for the function of the access
`point and the function of the alternating control of the access of the common
`frequency band by the first wireless network and the second wireless
`network, you realize the separate stations. In that case, with respect to the
`duration in which the frequency band can be utilized by the first or second
`radio interface standard, a data exchange is necessary between the separate
`stations. So all this says is that a separate station can provide duration
`information to the access point.
`It's not surprising that there is minimal disclosure here because
`overall, the specification of the ’676 patent is bare-bones. It's less than six
`columns long. The first column describes a prior art. The next 2-1/2
`columns mostly just follow the plain language. And only the last two
`columns provide details on how the alleged invention is supposed to work.
`Slide 56.
`JUDGE LEE: It's Judge Lee again. I'm a little confused because you
`just pointed out disclosure saying the access point function and the control
`of alternate use can be realized in separate stations.
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`MR. LIANG: Right.
`JUDGE LEE: That's what I heard. But if you look at claim 7, it is not
`talking about those two different functions. It doesn't talk about access point
`functions. The only action talked about on claim 7 is the controlling the
`alternate use. It's not talking about any access point functions.
`MR. LIANG: Right. This is the closest disclosure in the specification
`that discusses the idea of a separate station and providing information from a
`separate station. So --
`JUDGE LEE: So there seems to -- you are correct. There is a
`mismatch then because claim 7 doesn't talk about two different functions. It
`only talks about controlling alternate access. And yet it's splitting that into
`two places, one in the control station and the other one in a further station.
`MR. LIANG: I think that's correct, Your Honor. There may be a
`little bit of a mismatch then between the specification and the claim. This is
`the closest support we could find in the claim or in the spec to describe what
`the claim means.
`JUDGE LEE: What I found in the spec in a different spot and you
`talked about it, it -- I'm not sure where it is. It's somewhere in there where it
`talked about a further station. I did a word search and further station came
`up only -- no, in the Shellhammer. I did a word search for coordinator and it
`came up only in a couple of places. So can you explain how the coordinator
`and Shellhammer would satisfy claim 7?
`MR. LIANG: Well, Your Honor, we read the institution decision and
`your analysis of the coordinator there. And we aren't disputing that analysis
`from the institution decision. And we -- and as explained in the reply
`briefing, we are no longer relying on that citation to the coordinator. But we
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`believe that the rest of the analysis and the briefing is sufficient to render
`claim 7 obvious, particularly given the limited support in the specification
`for the ’676 patent which therefore relies on the knowledge of a person of
`ordinary skill on the art.
`JUDGE LEE: Oh, yeah. I didn't understand that. I read in your
`reply, you say something like -- although you gave some general things in
`the petition, but what you are now really relying on, are paragraphs in the
`declaration. Is that what you're talking about? You're kind of saying, forget
`the coordinator argument, but look at the other stuff that's in Mr. Roy's
`declaration?
`MR. LIANG: Yes, Your Honor.
`JUDGE LEE: But how is that fair? If you never elevated those other
`testimony of Dr. Roy into your petition, you can't just resurrect it now in the
`reply and say, well, let's take a look now. How is that okay?
`MR. LIANG: Well, Your Honor, I believe the petition was trying to
`raise just the -- a pretty high level obviousness argument. And this claim is
`recited and described in the patents at a very high level without any details.
`So correspondingly, we were presenting -- we are attempting to present a
`very high level obviousness argument in the same manner as the patent
`based primarily on Shellhammer figure 1 and the CPU 12 teachings there.
`Which -- and those teachings were pointed to in the petition. So figure 1
`was identified in the petition and Dr. Roy's explanation of it provides
`additional explanation.
`And it's really a fairly -- it's a pretty straightforward argument. It's
`just that when you look, for example, at 57, Shellhammer figure 1, you see
`that Shellhammer is teaching a similar configuration to the ’676 patent, a
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`separate station CPU 12 that's connected to the access points. So then in
`slide 58, it would've been obvious for CPU 12 to coordinate the access point
`as Dr. Roy explained because of its central connectivity in the network. The
`CPU 12 is connected to the all the APs, is communicating with them, and so
`it's naturally and optimally suited to coordinate the timing of the intervals
`between these different access pause.
`And this is the type of knowledge that was known in the art and that
`the ’676 patent relies on to enable its alleged invention because it doesn't
`provide any details beyond these high-level --
`JUDGE LEE: You are still relying on the coordinator teaching from
`Shellhammer, right?
`MR. LIANG: So, Your Honor, we -- as I was explaing, I believe
`the -- we aren't disputing your -- the analysis from the institution decision
`regarding the coordinator. So we are actually just trying to step back and
`just point to the other teachers that were cited in the briefing and in the
`petition, basically, Shellhammer figure 1, and Dr. Roy's explanation about
`how a POSITA would've understood that in the context of his teachings.
`JUDGE LEE: Oh, so you don't think you would change it for us?
`Because if you had an argument, I would've addressed it in the DI. And the
`fact that I didn't address it probably means that I didn't see such an argument
`because it's my normal practice to address every single argument a petitioner
`makes. And I don't recall any such argument other than the one we talked
`about. And you're saying you took a step back and kind of reconstructing
`something. I'm just saying I don't recall anything of this sort.
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`And you can tell me I'm wrong. You can definitely make that
`argument. Or you can be honest and say well, perhaps it didn't come
`through clearly, but you're making it clear in the reply. Which one is it?
`MR. LIANG: I --
`JUDGE LEE: Or you can show us the part of your petition where you
`made the argument.
`MR. LIANG: Your Honor, it's the latter. We cite to figure 1 in the
`petition. That's on page 63 of the petition. But much of the analysis and the
`petition itself was focused on the coordinator functionality that we are no
`longer rely on. So you are correct, Your Honor. We have the basic citation
`in the petition. Perhaps it was not articulated as clearly as it could have
`been. And so we've tried to clarify that with -- in the reply to the brief
`with -- and pointed to the parts of the record, the existing record, that
`support the argument.
`JUDGE LEE: All right. So if we find that to be not the same thrust of
`the argument, then we wouldn't consider it. We would have to say, well, in
`all fairness, you didn't make that argument. Then we would consider it.
`Would that be fair to say?
`MR. LIANG: Yes, Your Honor. We have -- we've tried to -- yes,
`Your Honor. If you find that it wasn't in the petition and that's a new
`argument, then that is a new argument. I think we did our best to clarify our
`position in the reply. And hopefully that's enough.
`JUDGE LEE: Okay, thank you.
`MR. LIANG: Okay. Moving on then, moving on to Sherman. If
`there are no more questions about Shellhammer, we can proceed to
`Sherman.
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`JUDGE LEE: Go ahead.
`MR. LIANG: Okay.
`JUDGE LEE: First and foremost, you talked about Dynamic
`Drinkware and the fact that you didn't make the showing that Sherman
`provisional supports the Sherman claim, why doesn't that render your
`Sherman grounds inadequate?
`MR. LIANG: Yes, Your Honor. If we could go to the 1349
`proceeding. In the 1349 proceeding if we could go to Dr. Roy's declaration,
`paragraph 120. Paragraph 120 discusses Sherman's provisional supporting
`Sherman being eligible as prior art. And for example, paragraph 120, if we
`go through it, it explains in different portions that are relied -- the different
`disclosures of Sherman that are relied on in these proceedings by the petition
`and by Dr. Roy and where those are located in the -- where those are located
`in the Sherman provisional, including for example the hybri
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