This Thursday the Appeal live hearing was conducted, covering all four cases:
22-2134 Neonode Smartphone LLC v. Samsung Electronics Co., Ltd. [993 IPR]
23-2304 Neonode Smartphone LLC v. Samsung Electronics Co., Ltd. [879 District Court]
23-1464 Samsung Electronics Co., Ltd. v. Neonode Smartphone LLC [879 IPR by Samsung]
23-1638 Google LLC v. Neonode Smartphone LLC [879 IPR by Google]
The audio files can be found here: https://cafc.uscourts.gov/home/oral-argument/listen-to-oral-arguments/

U.S. Court of Appeals for the Federal Circuit Live Stream Courtroom 402
Judges: Alan Lourie, Sharon Prost, Leonard Stark
Comment: A vigilant panel of judges. Asked tough question to both sides throughout the hearing.

Summary, what I think

1) [993 IPR] 50/50, could go both ways.
2) [879 District Court] Small advantage Neonode
3) [879 IPR-Samsung] Clear advantage Neonode
4) [879 IPR-Google] Advantage Neonode.

Below I present some more detailed info.

BEAR WITH ME, THIS WILL BE A LONG POST
[my comments below in square brackets]

Cases

1st case (993 IPR)

Neonode’s counsel (Mr Graves) main argument was that the (IPR) board presented a weak analysis (i.e consisting of only two sentences).

However, Judge Prost was not impressed by this argument. She said that 2 or 10 sentences doesn’t matter. What more would you want them to say?

Graves responded that the board did not consider Neonode’s teaching away from cited documents.

Judge Prost expressed clear scepticism.

Judge Start continued; Don’t we have reason to combine? (as board discussed). Board did analyse. Why is that unfair?
Graves: Court speculates…(what board did)
Prost: Does it have to repeat petitioners argument?
Graves: No. But we want to see an analysis.
Judge Lourie: We review the judgement, not opinions.

[Uphill battle for Neonode here]

Then Panikowski (Apple/Samsung counsel) just repeats the board basis, that substantial evidence shows reason to combine. And alleged that board did a substantive analysis.
Panikowski continues with some implicit evidence, that the court doesn’t seem to appreciate.
Judge Start asks if there are any room for harmless error here? if they don’t agree with Panikowski.
Panikowski: Yes, the board showed proper analytical path.
Judge Start: So we could remand, if not enough?
Panikowski: yes…

Graves (rebuttal): Talks about “findings of the board”. There are no such findings, only acknowledgement of the petitioners request. Only two sentences that rejects Neonode’s teaching away argument. Nothing on motivation to combine!

[Pretty good arguments here from Mr Grace. Initial disadvantage for Neonode, but strong arguments presented that evens it out]

2nd case (879 District Court)

Neonode repeated its arguments from their last written brief; erroneous “Three Meanings” conclusion and definition of gliding.

Then there is a discussion around Hirshberg.

Graves: Keys (in Hirshberg) always offered capability to active more than one function.
Judge Stark: But how about key 108 (in Hirshberg)?
Graves: Only by touch. Neonode has touch and glide!
Judge Prost: At the Google IPR hearing, you seem to make conflicting statements…
Graves: I think that is nitpicking. We are trying to explain the case.
Judge Prost: I do agree this is a challenging case with many statements out there (IPR, PTAB, DC, etc). But you mentioning “nitpicking”. That’s a hard word for me….

Then its Panikowski’s turn, but he ends up pretty quick on the defence, after Judge Stark questions him. He is trying to show evidence, but Judges seems/sounds somewhat sceptic.

[Panikowski gets under real pressure here]

Judge Prost then says; “Your side did argue like Neonode”
Panikowski again goes on defence.
Judge Prost questions him several times, and Panikowski goes on defence…

[This is a complex case, but, I believe this finally lands in favour of Neonode]

3rd case (879 IPR by Samsung)

Samsung’s counsel (Lauren?): Limitation 1d is obvious, a POSITA would have realised this.
Judge Stark questions this, and Lauren goes on defence.
Judge Prost again; Your arguments doesn’t reason with decision. There has already been a “battle of experts”. Why is that not sufficient?
Judge Prost: Its your burden to prove otherwise.
Lauren: yes, but….

Judge Lourie: But there was industry praise (for the invention). Would you say it was to a particular claim limitation? And Samsung also took a licence!
Lauren completely loses herself trying to evade “industry praise”
Judge Lourie goes on: How about the license?
Lauren: Samsung had interest in the intuitive swipe gestures.
Judge Lourie: So Samsung was taking a license because they liked one claim limitation over another…?
Lauren under heavy pressure here! (And can’t really answer that question)

[The license is one super heavy argument here]. This was pretty bad for Samsung! Clear advantage for Neonode]

4th case (879 IPR by Google)

Mr Tucker (Googles counsel): Board did not analyse the specification, but went into prosecution history instead. Gliding away cannot be construed so narrowly.
Judge Prost: What is the relevance? What is the ambiguity? Is there other prior-art you would use? How about Hirshberg?
Tucker: We use Robertson.
Tucker: Prosecution is ambiguous. Claim was amended 9 times. A total re-write of claim 1.

[That’s a weak argument, because that how prosecution works, you amend claims to overcome prior-art, in discussion with examiner.]

Judge Stark: Do you think there is a plain ordinary meaning of “gliding” to the POSITA?
Tucker: Yes, its movement along the screen.
Judge Stark: What’s your support of that?
Tucker: The abstract of patent 879

Then Tucker speculates what happened (between) 2002 and 2008 and alleges that “Neonode tried to catch (with the claim) our products released then” (by amending the claims).
[Which is completely legit, as long as you stay within the embodiments of the specification]

Graves (rebuttal): Figure 2 is a perfect example of gliding. Gliding is a subset of moving. I.e more narrowly than disclosed in specification. You are allowed to narrow down claims during prosecution.
[Good arguments]

Judge Prost: Does Hirshberg disclose gliding?
Graves: A type of gliding, though Hirshberg is not at issued in this IPR.

[Hard to tell favour. Googles counsel made a much better job that Samsung’s. Though narrow amendment is part of the patent process, so I give advantage to Neonode here.]

Conclusion

Considering the summary provided above, the situation remains entirely open and could develop in either direction. Nonetheless, there has been no further deterioration for Neonode. In fact, the situation may even be somewhat improved, as they have the opportunity for both 993 and 879 to proceed to district court.

Historically, the Federal Circuit has affirmed the Patent Trial and Appeal Board (PTAB) on all issues in approximately 74% of Inter Partes Review (IPR) appeals. So statistically, all above IPR decisions would stand. That would leave us with the [879 District Court] indefinite case. For which I note a small advantage for Neonode.
But that’s just statistics…

Now we can only wait and see…