[00:01:01] Speaker 02:
please repeat it don't work great great great you must get mispronounced i've heard from the right one ever pretty well maybe next time you're here i'll get it right maybe okay please thank you thank you jimmy to write for uh... apparently

[00:01:23] Speaker 00:
So I think that the issue today is, at least I believe, pretty simple, or at least I hope it is.

[00:01:30] Speaker 00:
I mean, the issue being, does the prior reference disclose a point of sale terminal that's configured to receive data indicative of gratuity?

[00:01:38] Speaker 00:
And I think along this path, one of the issues that I confront when I start to think about it is based on the way that under Patent Trial and Appeals Board, the PTAB went, and then it's looking at whether it's reasonable

[00:01:50] Speaker 00:
for the PTAB to characterize a prior art device which receives confirmation of a total charge amount as such a device simply because the amount can be utilized or compared to a subtotal, that total can be compared to a subtotal to determine imputuity even though that's never actually done in the prior art.

[00:02:13] Speaker 00:
Now when I started to think about this, as I do with many of the legal issues, sometimes it starts to get rather abstract for me.

[00:02:20] Speaker 00:
So if you're trying to make it a little more concrete, I took a trip to a fine dining establishment, you may be familiar with Chili's.

[00:02:27] Speaker 00:
And the reason I went to Chili's, aside from the bottom of those chips, was that they have devices on the table that are very similar to the prior devices.

[00:02:35] Speaker 00:
And these devices let you at your table order food, afterwards you can pay, you can slide your card, you can specify your duty percentage.

[00:02:42] Speaker 00:
So the other day I went to Chili's, had a meal, afterwards split my card, interacted with the UI, ended up with a total amount that was charged for my card of $18.19.

[00:02:52] Speaker 00:
And so kind of the question that I ask myself from that is, you know, that total amount that's charged for my card and that, you know, in accordance with the method of freighter would be kind of communicated back to that point of sale terminal.

[00:03:03] Speaker 03:
Did you enter a tip before you slid your card?

[00:03:07] Speaker 00:
Well, you slide your card, actually, and then you confess by a tip.

[00:03:10] Speaker 00:
In this case, I actually, because I had this in mind, I went ahead and entered a table of zero and then left the $20 on the table.

[00:03:16] Speaker 02:
And that's not... You left $20 on the table for an $18 lunch?

[00:03:20] Speaker 00:
Yeah, I was trying to try it.

[00:03:21] Speaker 00:
I felt like... Keep going.

[00:03:23] Speaker 02:
The only reason I did... Questioning your economics.

[00:03:26] Speaker 00:
The economics, it was a terrible decision.

[00:03:28] Speaker 00:
Logically, my only thinking was that it was actually bigger than the bill itself, which means that the charge total doesn't even necessarily indicate that the gratuity is less than the total amount.

[00:03:40] Speaker 03:
I mean, it doesn't really tell you anything about it, but I mean... You've given us an example where you don't enter the gratuity.

[00:03:48] Speaker 03:
How about if you had entered the $2 or the difference in...

[00:03:53] Speaker 00:
I think that it's still not going to be and I kind of use that as a jumping off point.

[00:03:58] Speaker 00:
It's not going to be wild.

[00:03:59] Speaker 00:
I still think that it's not indicative.

[00:04:02] Speaker 00:
And the reason I think it's not indicative, so you have this.

[00:04:04] Speaker 00:
Let's imagine that I had entered $2 or $5 instead as a tip.

[00:04:07] Speaker 00:
I don't think I'm going to sell some cheap.

[00:04:10] Speaker 00:
So I had entered $5 as a tip.

[00:04:11] Speaker 00:
And so that $18.19 is going to be $13.19 plus a $5 tip.

[00:04:15] Speaker 00:
I still don't think that just that total, that total charge amount, is going to be indicative of the gratuity as it's construed.

[00:04:25] Speaker 03:
Because I think that when you're simply using the total amount,

[00:04:29] Speaker 03:
Just using an example, it's the charge for the food plus your tip, right?

[00:04:35] Speaker 03:
So now you get the total amount back.

[00:04:37] Speaker 03:
You're saying that that contains no data indicative of the gratuity?

[00:04:42] Speaker 00:
I don't think the data itself, just in terms of that magnitude of the charge amount, is indicative of the gratuity.

[00:04:48] Speaker 00:
The reason that I don't think so is because I think that the reason that the PTAB used to arrive at that result is simply because it can be combined with other information or other data to determine the gratuity.

[00:04:59] Speaker 00:
If you accept that, I think it leads to absurd results.

[00:05:03] Speaker 00:
The reason I think it leads to absurd results is let's look at the component pieces of what's going on there.

[00:05:10] Speaker 00:
subtotal, in the simplest example, you've got the subtotal before gratuity, and then you've got the total after the gratuity.

[00:05:16] Speaker 00:
So in the example that the PTAB dealt with, you're getting back the data that is the total, and they're saying that that's indicative of gratuity.

[00:05:25] Speaker 00:
What about the subtotal itself?

[00:05:26] Speaker 00:
What if instead you were looking at the subtotal?

[00:05:28] Speaker 00:
Can you say the subtotal is indicative of the gratuity?

[00:05:31] Speaker 00:
Because it's the same thing, right?

[00:05:32] Speaker 00:
You can compare it to the total,

[00:05:34] Speaker 00:
to determine the gratuity.

[00:05:35] Speaker 00:
So as a result, under the same logic and argument that the PTAB used, you could say that the subtotal itself was indicative of the gratuity.

[00:05:43] Speaker 00:
Well, you can go a step further too.

[00:05:44] Speaker 00:
So that subtotal includes, say I got a cheeseburger and fries and a milkshake.

[00:05:49] Speaker 00:
Well, you could say that, you know, that component bill, that charge, includes the price of a cheeseburger.

[00:05:55] Speaker 00:
So you could say that, you know, it is the price of a cheeseburger if you combine it with the price of the fries.

[00:06:00] Speaker 03:
Can you state your argument in terms of what we're looking at here in terms of the prior art reference?

[00:06:09] Speaker 03:
Yes.

[00:06:09] Speaker 03:
And I appreciate your examples, but

[00:06:11] Speaker 00:
I'm really interested in seeing how you relate those examples to the facts of this case.

[00:06:30] Speaker 00:
is receiving back the total charge amount.

[00:06:32] Speaker 00:
And the argument that the PCAV made was that's indicative of maturity because it can be compared to other information at the device.

[00:06:41] Speaker 00:
I think the problem with that conclusion is that, like I said, it leads to absurd results if you use that as the entire basis.

[00:06:48] Speaker 00:
If you accept their definition,

[00:06:50] Speaker 00:
that something is indicative of gratuity simply because it can be compared to other pieces of information that are known there to determine the gratuity, then I think that you can look at any component part of the bill as being indicative of gratuity under the same logic.

[00:07:04] Speaker 00:
You can look at the subtotal as being indicative of gratuity because you can compare it to the grand total that you know and as a result you can arrive at the gratuity.

[00:07:12] Speaker 00:
You can take, like I said, you can take the price of any individual item

[00:07:16] Speaker 00:
within a meal and compare it to or combine it with your knowledge of what the other component parts of that bill are and determine the security.

[00:07:23] Speaker 00:
Basically the gratuity is just one piece or one part of this total, this resulting total and that you can't say that it indicates that any more than it indicates what you had for lunch.

[00:07:36] Speaker 00:
It doesn't indicate that you had a cheeseburger for lunch.

[00:07:39] Speaker 00:
It doesn't indicate what the price of any individual item you ordered is.

[00:07:42] Speaker 00:
It's just a grand total, and it doesn't really apply.

[00:07:46] Speaker 03:
So here if we look at the Fratter card reference, and it's a touch screen.

[00:07:53] Speaker 03:
If you look at Figure 4, it displays an itemized charges.

[00:07:56] Speaker 03:
So you have itemized charges, including the gratuity and the total amount charged.

[00:08:01] Speaker 03:
Are you saying that that display does not contain data indicative of gratuity?

[00:08:07] Speaker 00:
Oh, it totally does.

[00:08:08] Speaker 00:
That exactly, but the thing is, so the claimant side is receiving data indicative of gratuity from a card issuer.

[00:08:15] Speaker 00:
And so that's not coming from the card issuer, that's from the patient in the restaurant.

[00:08:18] Speaker 00:
That's like, you know, when you're sitting in the restaurant inputting a gratuity percentage, it's coming from the patient.

[00:08:23] Speaker 00:
It's interesting because that was actually the original rejection the examiner made.

[00:08:26] Speaker 00:
was saying that the data indicative of the gratuity was received at the terminal.

[00:08:32] Speaker 00:
And I pointed out that it was in fact received from not the card issuer, it was actually received from the patron in the restaurant.

[00:08:39] Speaker 03:
That data indicative of the gratuity, in fact, and this is why... Does a creditor, does a bank, for example, does it authorize that charge, a complete charge?

[00:08:49] Speaker 00:
I believe it does, I mean it would authorize the complete total.

[00:08:52] Speaker 03:
If I go to Chili's and have a bowl of Chili, I pay for my meal, I add $3 tip on there, and then it goes to the bank, the credit card processing, and the bank authorizes a charge, and let's say it authorizes $18,

[00:09:11] Speaker 03:
Does that $18, does it contain data indicative of the gratuity?

[00:09:16] Speaker 00:
I would say not, because for instance the solicitor offered the definition of something being indicative of a signed symptom or index.

[00:09:24] Speaker 00:
And I would say that it's hard to say that that amount right there indicates anything or is a signed symptom of index of the gratuity in any way.

[00:09:33] Speaker 00:
In other words, I don't see how it points to, tells you anything instructive about, or in any way indicates anything.

[00:09:41] Speaker 00:
And I'm not saying that it has to tell you exactly, in order to be indicative, it would have to tell you exactly what the gratuity value is.

[00:09:47] Speaker 00:
I'm just saying that it needs to, at a base point, tell you something, anything.

[00:09:52] Speaker 00:
As it is, it can't even tell you whether a gratuity exists in that amorphous block.

[00:09:56] Speaker 00:
I mean, it can't even tell you whether that total includes a gratuity amount.

[00:09:59] Speaker 00:
So I don't think that there's any way to say, I mean, under the Solicitor's own definition, that it's really indicative of, because I don't think it's offering a signed symptom or index that there's even a gratuity included in that total charge information.

[00:10:13] Speaker 00:
The only reason you might know there's a gratuity included in that charge information

[00:10:16] Speaker 00:
is because you already know outside information, for example, at that terminal that the customer reported their gratuity.

[00:10:22] Speaker 00:
And in point of fact, the terminal actually already knows what the gratuity amount is.

[00:10:26] Speaker 00:
So the comparison that the PTAB proposed doesn't even make any sense because it already knows that gratuity amount.

[00:10:32] Speaker 00:
There's no reason for it ever to use the total amount to compare to the sub-total of the terminal gratuity.

[00:10:37] Speaker 00:
It already knows the gratuity at the outset.

[00:10:41] Speaker 00:
So I think returning kind of to what I was saying, I think that the

[00:10:45] Speaker 00:
That's where the PTAB errors.

[00:10:47] Speaker 00:
I mean, I think that's the contention that I have issue with.

[00:10:51] Speaker 03:
What kind of interpretation did the PTAB give here?

[00:10:53] Speaker 03:
Was it just a reasonable interpretation or the broadest reasonable interpretation?

[00:11:01] Speaker 00:
The PTAB said, it based its conclusion and it didn't

[00:11:05] Speaker 00:
The basic conclusion on the idea that because the data can be compared, and it's possible to be compared, and I'm assuming it's using a broadest reasonable interpretation.

[00:11:18] Speaker 03:
Is that a correct interpretation?

[00:11:21] Speaker 00:
I think its interpretation is incorrect, and the reason why I think it's incorrect... It's not the interpretation.

[00:11:27] Speaker 03:
the standard they use for the interpretation.

[00:11:30] Speaker 00:
I think that a broadest reasonable interpretation still has to be within the context of specification or still has to be informed by specification and I think that's where they failed.

[00:11:39] Speaker 00:
Or at least that's one place where they failed.

[00:11:41] Speaker 00:
But I think the largest thing they failed at was

[00:11:45] Speaker 00:
They basically, they didn't just say that it's possible for something to be indicative of a gratuity even if it doesn't tell you it by itself.

[00:11:51] Speaker 00:
They said that because it can be combined with something else to determine it, it automatically is indicative of a gratuity.

[00:11:58] Speaker 00:
And that's where I'm trying to make my argument by absurdity that

[00:12:01] Speaker 00:
you can take any piece of information or any component piece in that bill and say that it's indicative of gratuity under that framework.

[00:12:09] Speaker 00:
And because that's the premise they base their argument on, because it leads to the absurd result by considering the price of a cheeseburger or sales tax or something like that as being indicative of gratuity, I think that the fact that it leads to an absurd result means it's simply not a reasonable conclusion, it's not a reasonable premise, and they base their conclusion on that.

[00:12:29] Speaker 02:
Okay, do you want to take the rest of your time for rebuttal?

[00:12:31] Speaker 02:
Yes, please.

[00:12:33] Speaker 02:
Okay, we'll hear from the government.

[00:12:40] Speaker 01:
Your Honor, may it please the Court?

[00:12:42] Speaker 01:
Dictionaries in case law define the term indicate as meaning a sign or symptom or to imply or suggest a fact.

[00:12:49] Speaker 01:
These sources confirm that the term has a broad compass and can include providing information indirectly, such as when other information also must be considered in combination in order to reveal a fact.

[00:13:00] Speaker 01:
It is undisputed that Freighter describes transmitting the total amount of a bill, which includes the gratuity.

[00:13:07] Speaker 01:
Because a customer using the invention would already know the original amount of this bill, that customer could then apply the total amount and, using simple subtraction, readily identify the amount of the gratuity.

[00:13:19] Speaker 01:
Because Freighter therefore discloses providing information that would allow a customer to readily, though indirectly, identify the amount of a gratuity,

[00:13:28] Speaker 01:
freighter discloses providing information that is indicative of a gratuity as that term was broadly though reasonably defined by the board.

[00:13:38] Speaker 01:
This concludes my plan presentation unless the court has any questions for me.

[00:13:42] Speaker 02:
I don't understand why this is indicative of a gratuity.

[00:13:46] Speaker 01:
Because it allows you to readily identify the amount of a gratuity.

[00:13:49] Speaker 02:
Only if you're the same customer that inputted the amount.

[00:13:53] Speaker 01:
There's no reason it envisions one customer using the

[00:13:57] Speaker 01:
The same customer who got the original bill would be the one applying the gratuity.

[00:14:01] Speaker 02:
I don't understand how data that is the total is indicative of a gratuity.

[00:14:07] Speaker 02:
It doesn't even tell you whether a gratuity is or is not present.

[00:14:10] Speaker 02:
It certainly doesn't give you any indication of the amount of gratuity.

[00:14:13] Speaker 02:
Nothing.

[00:14:15] Speaker 01:
For the customer using the invention who would know the original amount of the bill.

[00:14:19] Speaker 02:
That's the problem.

[00:14:20] Speaker 02:
I don't see how you can require and import that into your claim limitation.

[00:14:29] Speaker 02:
I mean, that's like saying, you know, no.

[00:14:32] Speaker 01:
It's reading the claim in light of the specification, Your Honor.

[00:14:34] Speaker 01:
The specification contemplates a customer using this invention.

[00:14:38] Speaker 01:
That customer would already know the original amount of his bill.

[00:14:42] Speaker 01:
I'll concede that that amount is not the same thing as the gratuity, but the claims don't require disclosing the amount of the gratuity or the actual amount.

[00:14:52] Speaker 01:
They just, they add the term indicative.

[00:14:54] Speaker 02:
Indicative broadens the term, and it allows it to... Yeah, but I assume it means like 15% rather than $3.

[00:15:00] Speaker 02:
Or, you know, it gives you data that is indicative of the gratuity.

[00:15:08] Speaker 02:
I don't know how to say it other than to use the word, because it just seems like this work with such clear meaning to me.

[00:15:14] Speaker 02:
You don't understand... Why did the PTO not reject this claim?

[00:15:17] Speaker 02:
It's obvious.

[00:15:18] Speaker 02:
you sure wish they did, don't you?

[00:15:22] Speaker 01:
Your Honor, I'm very happy to defend the rejection that's before you.

[00:15:27] Speaker 01:
The examiner concluded all of the limitations of the claim, including indicative of her truity, are within Frater.

[00:15:33] Speaker 01:
And I would refer the court to Frater itself at page A40 in the record.

[00:15:38] Speaker 01:
At figure four, for example, Frater describes a practical example where

[00:15:43] Speaker 01:
The original amount is given, the total of five dollars for the hamburger and iced tea.

[00:15:50] Speaker 01:
And then the grand total is given, six dollars.

[00:15:52] Speaker 01:
The customer using this invention in the context of these claims, once he was told that the total was six dollars, through simple subtraction, immediately identified that the tip, the gratuity, must have been one dollar.

[00:16:05] Speaker 01:
It's as simple as that, Your Honor.

[00:16:11] Speaker 03:
the invention and under Freighter, somebody's got to enter the gratuity amount, correct?

[00:16:17] Speaker 01:
Yes.

[00:16:19] Speaker 03:
And normally is that person who owns the credit card?

[00:16:23] Speaker 01:
Yes, your honor, yes.

[00:16:25] Speaker 01:
Freighter discloses suggesting typical gratuities, for example, for a type of establishment, and then adjusting that gratuity through arrow keys, so there is some assistance to it.

[00:16:36] Speaker 01:
But yes, in all of these, in both the claim dimension and the prior art,

[00:16:41] Speaker 01:
customer who ultimately has some control obviously over the gratuity.

[00:16:45] Speaker 02:
So just out of curiosity, does freighter only transmit back the total?

[00:16:54] Speaker 02:
That should be indicative of the gratuity.

[00:16:56] Speaker 02:
Does freighter print the amount owed and the gratuity as required by the claim?

[00:17:04] Speaker 01:
Frater does disclose printing a receipt that shows both the gratuity and the amount.

[00:17:08] Speaker 01:
This is at page 50 or paragraph 54 of Frater.

[00:17:13] Speaker 02:
How could it not electronically transmit the gratuity but have the gratuity nonetheless printed?

[00:17:24] Speaker 01:
appears to have found that the transmitting back from the card issuer occurs as part of the credit confirmation process and the board concluded that that process or frankly just simply whatever was transmitted back from the card issuer is simply the total amount.

[00:17:39] Speaker 01:
I say the word apparently because these issues haven't developed because frankly the teachings and findings of Frater have not been disputed either in Appellant's opening brief or in his reply brief.

[00:17:50] Speaker 01:
The board's finding that Frater discloses transmitting the total amount has not been part of this appeal.

[00:17:59] Speaker 01:
The only issue before this court is claim construction.

[00:18:02] Speaker 01:
Is the term indicative, broadly but reasonably construed, to indicate indirectly indicating to you the amount of the gratuity.

[00:18:12] Speaker 02:
But how does it indicate the amount of the gratuity?

[00:18:15] Speaker 01:
because if you know the original amount, for example freighters figure four, if you know that the original amount was five dollars and you're told the total with the tip is six dollars, you know the gratuity must have been one dollar.

[00:18:34] Speaker 02:
Okay, did you have anything further?

[00:18:48] Speaker 02:
I think... Does it print both the amount owed and the utility separately?

[00:18:55] Speaker 00:
Are you talking about the prior reference?

[00:18:59] Speaker 00:
I believe that it does print both the amount owed and the gratuity separately.

[00:19:03] Speaker 02:
So if it prints the number that constitutes the gratuity separately, how is it not electronically transmitting or electronically received through the second interface from the particular card issuer data indicative of the gratuity?

[00:19:16] Speaker 02:
How is that not happening?

[00:19:17] Speaker 00:
I would say because it actually gets the data indicative of the gratuity from the patient

[00:19:23] Speaker 00:
In other words, it's that language from the card issuer.

[00:19:26] Speaker 00:
The question is, where is it getting that data indicative of gratuity?

[00:19:30] Speaker 00:
How is it determining the gratuity?

[00:19:32] Speaker 00:
I think that's really a good question because that's the crux of the difference between the prior art invention and the invention here.

[00:19:42] Speaker 00:
The claim here is receiving gratuity data, data indicative of gratuity, somewhere remotely from a server.

[00:19:49] Speaker 00:
That's what's walked through the entire specification.

[00:19:51] Speaker 00:
in the freighter, the prior art reference, that data is being input by a patron the same as it is conventionally with an index.

[00:19:58] Speaker 02:
Even if we were to agree with your interpretation of an indicative of a gratuity and conclude that in light of that interpretation there isn't actually anticipation, this is like the tiniest variation from a prior art.

[00:20:14] Speaker 02:
Why are we here?

[00:20:15] Speaker 02:
Why wouldn't this

[00:20:16] Speaker 00:
Unfortunately, I have to answer that we're here because we have tried, we have three different cases with the PTO and we have tried to engage in dialogue with the examiner to get a reasonable rejection and we're simply unable to do so.

[00:20:31] Speaker 00:
As a result, we can't engage and continue the process of mending and working with them and discovering the prior that we need to actually be cognizant of when we're faced with this rejection, which we think is

[00:20:42] Speaker 00:
absurd on its face and isn't the same thing as what we're dealing with.

[00:20:45] Speaker 02:
But even if you're right on anticipation, I don't see how this claim isn't obvious in light of this exact reference.

[00:20:52] Speaker 02:
So how does it help you to go back and just have this claim rejected under obviousness?

[00:20:59] Speaker 00:
I think that at that point we would take a look at it and I would say we probably would have amended it.

[00:21:06] Speaker 00:
Could we have amended it or maybe should we have amended this claim already?

[00:21:10] Speaker 00:
I think that there's a very good chance we maybe should have, that we should have amended it knowing that there's a good chance that an obvious rejection would just be entered.

[00:21:17] Speaker 00:
Obviously that's not the issue before at the moment but I can't say that I disagree.

[00:21:23] Speaker 00:
I mean I can't say that I look at this claim and think that it's

[00:21:25] Speaker 00:
the most novel thing I've ever seen, I can only tell you that when I look at this claim and I look at the prior art reference, I don't think there's a valid anticipation projection here and I don't think the board anticipation projection was proper.

[00:21:36] Speaker 03:
Does this case depend on what standard of review we adopt?

[00:21:40] Speaker 00:
Well, I actually tried not to make it do that.

[00:21:45] Speaker 00:
I tried to give the most friendly standard for the other side and I did that by not arguing this is mainly a claim construction thing and instead just basically focusing on the fact that I think the factual determinations of the conclusions of the PTAB panel are just clearly erroneous, are not reasonable.

[00:22:04] Speaker 00:
And I think they're not reasonable because they lead to absurd results.

[00:22:07] Speaker 00:
And I think that it's really hard to outline it because, as Your Honor was saying, it's just a question of when you look at what indicative means, it just seems strange to think that a total is indicative of a gratuity when, you know, what's indicative of a gratuity in the prior reference and the data indicative of a gratuity is actually being received from the patron, not from the card issuer.

[00:22:32] Speaker 02:
Thank you.