[00:00:00] Speaker 01:
one one seven zero in rey ronald cat you afternoon your honors and they please court this case presents a straightforward issue means the function

[00:00:17] Speaker 02:
claim instruction for me to ask a question about the 551 patent which is the case the patent in front of us correct?

[00:00:26] Speaker 02:
that's correct your honor in looking at your statement of related cases I realize that certainly these cases are totally concluded I'm trying to find out if there is a case alive today in which the 551 is being asserted

[00:00:44] Speaker 01:
There is one case alive today in which the patent is being asserted.

[00:00:48] Speaker 01:
That's the case site of the third bullet point here on page one of the blue brief.

[00:00:59] Speaker 02:
Is that the Eastern District of Texas case?

[00:01:02] Speaker 01:
That's the correct case.

[00:01:03] Speaker 01:
The case has actually been transferred now following remand from the multi-district allegation channel.

[00:01:08] Speaker 02:
What is the schedule for trial?

[00:01:11] Speaker 02:
in 2016.

[00:01:15] Speaker 02:
And I'm looking at the scheduling order that was actually proposed by your client.

[00:01:21] Speaker 02:
And it says that you're only asserting two claims in the 547 patent.

[00:01:28] Speaker 02:
And I traced back and according to what I can find in the file, there was in the California proceeding in the multi-district litigation, the 551 dropped out.

[00:01:42] Speaker 01:
The 551 patent is still asserted in that litigation.

[00:01:48] Speaker 01:
Upon the entry of the board's decision, as it stands now, which is on appeal now, finding the claims invalid, the claim is not currently asserted in the litigation because we don't dispute that if the board's decision stands, this collateral estoppel applies effectively, bonded tongue collateral estoppel, and the claim will no longer be asserted.

[00:02:11] Speaker 01:
However, the claim is here on appeal hasn't been withdrawn from the FedEx lawsuit.

[00:02:17] Speaker 01:
The patent is still asserted.

[00:02:19] Speaker 01:
The claim is in the case.

[00:02:20] Speaker 01:
It's not currently asserted because of the board decision that currently stands and binds, but subject to this appeal.

[00:02:29] Speaker 02:
What I'm looking now at a document that was filed by FedEx in the proceedings that noted that over in California, what happened was all but the

[00:02:42] Speaker 02:
all the claims are eliminated except for the other case and then there is an argument here that the 551 could be reasserted, right, if we were to reverse on this case?

[00:02:57] Speaker 01:
Essentially reasserted or whatever the correct legal terminology might be, it's not currently asserted because of the currently

[00:03:07] Speaker 02:
You know, the board decision is... Because of the board decision is the reason why the trial order contemplates only trying the number of the other patent.

[00:03:22] Speaker 01:
6292547 is the other patent.

[00:03:24] Speaker 02:
Yeah, it claims 11 and 18 and 547.

[00:03:27] Speaker 01:
Correct, or I believe it may just be claim 18, but that's the patent.

[00:03:31] Speaker 01:
And so this patent is not out of that case, has not been withdrawn from that case.

[00:03:36] Speaker 01:
When I say this patent, I mean the 551 patent, 5815, 551, currently subject to this appeal.

[00:03:43] Speaker 02:
As I say, it looks as if the 551 came out of the case when the case was in California, before the case ever gets transferred back to Texas and then over to Tennessee.

[00:03:56] Speaker 01:
So the document you're reading from is obviously not part of the record here.

[00:04:01] Speaker 01:
I don't have that in front of me.

[00:04:03] Speaker 01:
If that's a representation made by FedEx,

[00:04:06] Speaker 01:
incorrect to the extent that it would suggest that that patent has been in any way

[00:04:12] Speaker 01:
withdrawn or that the claim will never be asserted.

[00:04:16] Speaker 01:
Currently, there's a board decision in the patent owner's respect.

[00:04:20] Speaker 02:
No, I mean, I'll be perfectly honest with you.

[00:04:21] Speaker 02:
In a FedEx filing, FedEx says, most recently claimed 19 out of the 551, 19 depends from 18, was invalidated by the PTO.

[00:04:32] Speaker 02:
That decision is currently on the field of the Federal Circuit.

[00:04:35] Speaker 02:
It's not a factor in this case unless the Federal Circuit reverses the PTO cancellation.

[00:04:39] Speaker 01:
That's what you're saying.

[00:04:41] Speaker 01:
What you just read sounds consistent with our position, unless and until of this appeal, right?

[00:04:49] Speaker 02:
In the event that this appeal were to resolve in your favor, then you would need to amend the scheduling order if you're going to bring the 551 back into the trial, correct?

[00:05:01] Speaker 01:
Perhaps amend in some regard, the trial date is not actually until May of 2016, which was at the FedEx, which was an accommodation exit to FedEx and its counsel, we had the patent owner had requested an earlier trial date because the case has been pending actually about 10 years now.

[00:05:16] Speaker 01:
So, you know, I can't say exactly what the effect would be depending on

[00:05:20] Speaker 01:
the decision of any or the timing of any decision from this court and what still needs to be done before trial in that case.

[00:05:27] Speaker 01:
So presumably some type of amendment, although I do know the trial is not until May of next year.

[00:05:35] Speaker 02:
I was concerned because it would have been a little bit helpful to us if you might have been able to update your statement on related cases so we could have followed the case over to Tennessee.

[00:05:45] Speaker 01:
I apologize for that, Your Honor.

[00:05:49] Speaker 02:
So turning to the... Should that time come off the clock?

[00:05:54] Speaker 02:
We'll be generous if we need it.

[00:05:58] Speaker 02:
thank you no problem your honor uh... and it you're going to be the only case in which that's going to be in the case that's going to be in the case that's going to be in the case that's going to be in the case that's going to be in the case that's going to be in the case that's going to be in the case that's going to be in the case that's going to be in the case that's going to be in the

[00:06:29] Speaker 01:
correct in that regard that absolutely your honor.

[00:06:32] Speaker 02:
But for the footnote that the fact that the 551 is potentially revivable for trial in the Tennessee case, we'd dismiss this case for mootness.

[00:06:48] Speaker 01:
Makes sense.

[00:06:49] Speaker 02:
We'd be moving to have the case just as an officer in the court, and we'd be moving to have the case dismissed, I believe.

[00:06:54] Speaker 01:
That absolutely makes sense, your honor, and that's why we have it, and I apologize for the

[00:06:59] Speaker 01:
So the issue here is means plus function claim construction issue.

[00:07:08] Speaker 01:
The function is undisputed, it's never been disputed, to control processing formats of the analysis structure in accordance with DENIS.

[00:07:16] Speaker 01:
In the proceedings below, in a multi-year re-examination proceeding, the examiner correctly construed the corresponding structure.

[00:07:24] Speaker 01:
The examiner did a means plus function analysis, looked at the specification,

[00:07:28] Speaker 01:
concluded that the social structure is quote readily apparent unquote from the specification this is that J.A.

[00:07:34] Speaker 01:
2277 corresponding structure that the examiner determined.

[00:07:39] Speaker 02:
When you say the function, the function is agreed by everybody?

[00:07:42] Speaker 01:
That's right your honor.

[00:07:45] Speaker 02:
Well, if you look at claim 18, claim 18 is adding something to claim 14, right?

[00:07:51] Speaker 02:
Correct.

[00:07:52] Speaker 02:
14 is the invalid error.

[00:07:54] Speaker 02:
And so for us to identify exactly what the function is, we say, well, what is added?

[00:08:00] Speaker 02:
What is the means limitation is what's added?

[00:08:03] Speaker 02:
Something to narrow claim 14, right?

[00:08:06] Speaker 01:
Correct.

[00:08:06] Speaker 02:
And isn't it DNIS?

[00:08:09] Speaker 02:
And DNIS is simply the ability to identify a phone number.

[00:08:14] Speaker 02:
and then to understand what it is that phone number is trying to do.

[00:08:20] Speaker 02:
For example, if there's a number 1-800-9999999 is the number you dial if you want to get an American Airlines reservation.

[00:08:33] Speaker 02:
What this means is that when I dial that number, it identifies the number and then it knows that that wants to go to American Airlines reservation.

[00:08:45] Speaker 01:
So I'm very glad your honor asked that question.

[00:08:50] Speaker 01:
Part of the function relates to DINAS.

[00:08:53] Speaker 01:
That's why it's critical as the court is repeatedly cautioned, we have to look at precisely what the recited function is.

[00:09:00] Speaker 01:
Here, recited function is to control processing formats of the analysis structure in accordance with the DINAS signals that your honor just described.

[00:09:12] Speaker 01:
It's not merely to

[00:09:14] Speaker 01:
Identify a format based on a DINA signal.

[00:09:17] Speaker 01:
It's not merely to select a format based on a DINA signal.

[00:09:21] Speaker 01:
It's a more encompassing term to control processing formats of the analysis structure.

[00:09:28] Speaker 01:
And it's set forth in the papers.

[00:09:29] Speaker 01:
There's an analysis structure.

[00:09:31] Speaker 01:
There are processing structures that implement formats which are essentially interactive call processing.

[00:09:42] Speaker 01:
it's to control the formats.

[00:09:44] Speaker 01:
I don't believe there's been any dispute obviously.

[00:09:46] Speaker 02:
First the language.

[00:09:49] Speaker 02:
Control the formats of.

[00:09:53] Speaker 02:
Right?

[00:09:55] Speaker 02:
Control the processing formats of the analysis structure.

[00:09:58] Speaker 02:
The analysis structure is in the last clause of Claim 14, isn't it?

[00:10:02] Speaker 02:
Correct.

[00:10:04] Speaker 02:
So what you're doing is that all that is is just an analysis structure.

[00:10:09] Speaker 02:
So what

[00:10:10] Speaker 02:
18 is doing is narrowing the analysis structure to whatever they're talking about here, which is DNIS, right?

[00:10:19] Speaker 02:
And so the signal provided by the communication facility is just the telephone call number.

[00:10:24] Speaker 02:
And all that is is indicative of one in many numbers.

[00:10:27] Speaker 02:
So it's what it's doing is it's giving some control to that number.

[00:10:32] Speaker 02:
And isn't that control only saying, well, when you dialed that number, you're trying to get American Airlines?

[00:10:41] Speaker 02:
Preservation service.

[00:10:43] Speaker 01:
As I tried to just articulate, the function is not simply that.

[00:10:48] Speaker 01:
Certainly, the identification of the format based on DIN is encompassed within the recited function.

[00:10:55] Speaker 01:
But it's something broader.

[00:10:57] Speaker 01:
It's controlling the format.

[00:10:59] Speaker 01:
It's controlling the operation.

[00:11:01] Speaker 01:
in accordance with DNS.

[00:11:02] Speaker 02:
It's not simply... DNS, for example, has got nothing to do with voice interface, does it?

[00:11:15] Speaker 02:
DNS doesn't have anything to do with voice recognition or anything having to do with voice over the call.

[00:11:20] Speaker 01:
Not per se.

[00:11:21] Speaker 01:
That's correct insofar as it goes.

[00:11:23] Speaker 01:
The interface structure, which is what controls the processing formats and is the means here,

[00:11:29] Speaker 01:
happens to include various functionalities, including voice interrater structure.

[00:11:33] Speaker 01:
So it's, in that sense, has something to do with it in terms of being in the same unitary structure.

[00:11:38] Speaker 02:
Well, I was trying to get the reason why I stopped you on what the function is, is it seems to me you've got a real claim construction issue.

[00:11:44] Speaker 02:
You should be saying exactly what is 18 doing?

[00:11:47] Speaker 02:
And 18 clearly is doing DNS, right?

[00:11:51] Speaker 02:
Tying it to that.

[00:11:53] Speaker 01:
Venus is clearly involved, it's expressly involved there.

[00:11:56] Speaker 02:
Which is not involved in the final limitation in Claim 14 is broad, could be anything.

[00:12:01] Speaker 01:
That would correct the feeling.

[00:12:02] Speaker 02:
He's narrowing it all to Venus.

[00:12:06] Speaker 02:
Venus has got nothing to do with voice recognition.

[00:12:10] Speaker 02:
With voice recognition.

[00:12:11] Speaker 01:
Voice recognition itself is not how Venus is used in the past.

[00:12:16] Speaker 02:
No, Venus is just saying, I know what the number was.

[00:12:21] Speaker 02:
And the fact that the number I gave went to American Airlines reservation is something that is, that's what the control function is, is to know that number goes there.

[00:12:33] Speaker 01:
Isn't it?

[00:12:34] Speaker 01:
So the control function, which as they explain in the papers, is the interface 20 device including the call data analyzer.

[00:12:41] Speaker 01:
The call data analyzer, there's no description whatsoever in the specification of what it does other than its name indicating

[00:12:49] Speaker 01:
The call data analyzer, just as the name indicates, it only analyzes.

[00:12:53] Speaker 01:
So there's an incoming data stream of call data, which includes various information which needs to be analyzed and interpreted.

[00:12:59] Speaker 01:
The call data analyzer analyzes that information, makes available the DNIS, the dialed number digits, to the interface 20, which it's a part of.

[00:13:11] Speaker 01:
And then the specification repeatedly describes in the passages we could look at, as cited in our brief as well,

[00:13:19] Speaker 02:
it's the interface twenty that's that's the description of the unitary device that is well but doesn't that doesn't the spec at line at column four and down to line sixty-three or four say the control for this ANI DNS capacity is provided through the call data analyzer the specification says that and there are two reasons that passage does not

[00:13:45] Speaker 01:
sufficiently linked the call data analyzer by itself to perform the function as recited in the claim.

[00:13:51] Speaker 02:
First is... Where does it say that the interface provides the control for this DNS capacity?

[00:13:59] Speaker 02:
DNS capacity?

[00:14:00] Speaker 01:
So, to finish the answer to your previous question first, the call data analyzer, there's no description in that cited passage, which is the only thing the patent office relies on of controlling formats of the analysis structure.

[00:14:13] Speaker 01:
So that passage does not link the call data analyzer by itself.

[00:14:17] Speaker 02:
And then to answer your honor's question about where and what doesn't link to the call data analyzer.

[00:14:22] Speaker 02:
I mean, what I'm talking, you know, maybe I'm stippling on it, but the way I understood the way 1.12.16 goes is that once you identify the function that is associated with the means, means for doing a function, right, then you go looking for what is the clear

[00:14:42] Speaker 02:
indication of the spec that what we're talking about is the structure that performs the function, right?

[00:14:50] Speaker 02:
So I've got DNS mentioned in the main communication and what I'm trying to do is to control DNS

[00:15:00] Speaker 02:
is what I read the claim to say, and what I believe the PTO, the board read the claim to say.

[00:15:06] Speaker 02:
So I'm now looking in the spec to say, is there anything in there where the patentee said to control DNS, you use X structure.

[00:15:16] Speaker 02:
And the point, what I pointed to, you said they looked to 28.

[00:15:21] Speaker 02:
We know that 28 is a subset of 20, it's like, you know, like a box.

[00:15:27] Speaker 02:
And maybe voice recognition takes place someplace else in 20, but not in 28.

[00:15:33] Speaker 02:
Because we know voice recognition doesn't work in 28.

[00:15:37] Speaker 01:
So there's no description whatsoever in the specification of the call data analyzer by itself, controlling processing formats of the analysis structure.

[00:15:46] Speaker 01:
That's the recited function here.

[00:15:48] Speaker 01:
That's the yardstick.

[00:15:49] Speaker 01:
It must be used to determine it.

[00:15:51] Speaker 01:
The call data analyzer

[00:15:53] Speaker 02:
absolutely is part of you know where is the description where is the clear description in this pack that says well if it isn't twenty eight twenty uh... and uh... section twenty is the structure for all the motions give you several citations column eighteen line sixty one through sixty five eighteen one how much uh... line sixty one through sixty five

[00:16:21] Speaker 01:
which is what that says among other after we can look at is

[00:16:34] Speaker 02:
By DINUS, you have basically describing an embodiment we have different... What is it talking about DINUS and starting at line 51?

[00:16:42] Speaker 01:
Line 61.

[00:16:43] Speaker 01:
For line 61, each of several telephone stations or television stations would solicit calls for different numbers as a result, either by DNIS or call channeling.

[00:16:53] Speaker 01:
Select processors, i.e., and the i.e.

[00:16:56] Speaker 01:
is my commentary, the processors are what implement the formats.

[00:17:01] Speaker 01:
as described elsewhere and as we presented in the paper, and I think there's no dispute on that.

[00:17:05] Speaker 01:
Those processors implement formats, different ones are reached by DENIS, and then returning to quote the specification, select processors would be reached through the interface units, e.g.

[00:17:16] Speaker 01:
Interface 20, Figure 1.

[00:17:19] Speaker 01:
That's a clear link between Interface 20 and the identification of format and the control of the formats in accordance with DENIS.

[00:17:28] Speaker 01:
There's no description whatsoever

[00:17:31] Speaker 01:
linking the call data analyzer by itself with controlling the processing formats of the analysis structure.

[00:17:40] Speaker 02:
Why does column four, the thing I put in, tell us that the control is provided through the call data analyzer?

[00:17:49] Speaker 02:
But how do I square those two?

[00:17:51] Speaker 01:
Because what is provided in column four, it does not say the control of

[00:17:57] Speaker 01:
processing formats of the analysis structure.

[00:17:59] Speaker 01:
This is just a generic structural description that says Venus is available, ANI, which is calling number, capability is available.

[00:18:08] Speaker 01:
Both capabilities are available for use with equipment as the interface 20, so that those are associated with interface 20 itself and to provide control through the call data analyzer.

[00:18:19] Speaker 01:
Our function here is to control the processing formats of the analysis structure

[00:18:25] Speaker 01:
That's not described here.

[00:18:26] Speaker 01:
And furthermore, there's no description that the call data analyzer itself, by itself, is the structure that controls.

[00:18:34] Speaker 02:
When I asked you the question of where, when we find something in respect to support item 20, you pointed to column 18.

[00:18:42] Speaker 02:
You said there were others?

[00:18:44] Speaker 01:
Another one, and this is the one that the examiner correctly recognized as being readily apparent and teaching precisely what was undisputed below until the final board decision.

[00:18:54] Speaker 01:
Column 6, lines 32 through 46.

[00:18:58] Speaker 01:
And that's a fair amount of text.

[00:19:01] Speaker 01:
I'll point to the latter part of that.

[00:19:06] Speaker 01:
And where the specification says the ACD associates the called number rendered available using standard telephone DINUS techniques through the interface 20 and then the switch to obtain connection with a specific processor, e.g.

[00:19:21] Speaker 01:
the processor PR1 formatting

[00:19:24] Speaker 01:
the health-related program.

[00:19:26] Speaker 01:
Accordingly, the processor PR1 cooperates with the Interface 20 to cue the Interface 20 to operate as a voice generator.

[00:19:33] Speaker 01:
This tells us multiple things that are critical here.

[00:19:37] Speaker 01:
There's no mention whatsoever of this call data analyzer 20A.

[00:19:40] Speaker 01:
It's the Interface 20, and they're describing how this actually works in practice.

[00:19:45] Speaker 01:
The Interface 20 is the only linked structure there as a unitary structure that provides a connection to a particular

[00:19:53] Speaker 01:
processors implementing different formats.

[00:19:57] Speaker 04:
And I know we're well over time here.

[00:20:14] Speaker 04:
Mr. McBride.

[00:20:16] Speaker 05:
Yes, good afternoon and may it please the court.

[00:20:18] Speaker 05:
I'd like to follow up on a few points that Judge Plotkin has raised.

[00:20:24] Speaker 05:
Appellant's counsel argues that the call data analyzer does not perform the claim function by itself.

[00:20:30] Speaker 05:
But the words by itself are not part of the claim language.

[00:20:33] Speaker 05:
And furthermore, the case law concerning the function doesn't require the corresponding function to actually perform the claim function by itself.

[00:20:43] Speaker 05:
The fact that it requires a connection to another component, in this case the interface and the switch, and if you look at page, figure 1 at page 25 of the joint appendix, it shows that the interface 20 and the call data analyzer are connected to switch 21.

[00:21:12] Speaker 05:
I'm sorry, page 25 of the joint appendix.

[00:21:16] Speaker 05:
And we're looking at figure one here.

[00:21:17] Speaker 05:
And you'll see that the interface 20 and the call data analyzer 20A are connected to switch 21.

[00:21:25] Speaker 05:
And then switch 21 is connected to the processors, which is the analysis structure.

[00:21:32] Speaker 02:
So they're both connected to the switch.

[00:21:34] Speaker 05:
Exactly.

[00:21:35] Speaker 02:
Exactly.

[00:21:36] Speaker 02:
And the interface is a two-way switch called data analyzer one-way, right?

[00:21:43] Speaker 05:
That's what it appears from the figure one.

[00:21:46] Speaker 02:
What's the difference in electronics?

[00:21:50] Speaker 02:
If the call data analyzer is a one-way switch, right, so it's just all it is is sending something to the switch.

[00:21:58] Speaker 02:
Right, it's connected to the switch.

[00:21:59] Speaker 02:
Then there's no capacity to confirm back, right?

[00:22:03] Speaker 05:
I believe that's correct.

[00:22:05] Speaker 02:
So let's say that, in my hypothetical, you dial a certain number to get American Airlines Reservation Service, and the last four digits were 00040s in the telephone book.

[00:22:22] Speaker 02:
But American Airlines actually changed that number to 0001 for its real number.

[00:22:28] Speaker 02:
But I don't know that.

[00:22:30] Speaker 02:
But a processor knows it.

[00:22:32] Speaker 02:
And so when I dial 0000, right, that number would come into the call data analyzer and would go over to the switch, right?

[00:22:43] Speaker 02:
Correct.

[00:22:44] Speaker 02:
But the number had been changed to 001 inside the processor, wouldn't there need to be a confirmed number back somehow?

[00:22:52] Speaker 05:
Under that circumstance, you'd probably have to somehow reprogram the call data analyzer to understand what the number is.

[00:23:00] Speaker 02:
So the electronics would have to come back the other way.

[00:23:03] Speaker 02:
I suggest you need a two-way communication from that.

[00:23:08] Speaker 02:
I'm looking at the line between the call data analyzer and the switch to show the electricity going only one way.

[00:23:13] Speaker 05:
Yep, I see that arrow.

[00:23:19] Speaker 02:
But come back and take your adversary's argument on its face.

[00:23:24] Speaker 02:
If you look at column six, right, he points to?

[00:23:29] Speaker 03:
Yes.

[00:23:29] Speaker 02:
He's saying you get the call signal which is 33333, right?

[00:23:34] Speaker 02:
Right.

[00:23:34] Speaker 02:
And then what it does is to hook that number up to the correct processor.

[00:23:40] Speaker 02:
Now in my hypothetical, the correct processor is American Airlines Reservation Circles, right?

[00:23:46] Speaker 02:
Correct.

[00:23:47] Speaker 02:
Right.

[00:23:47] Speaker 02:
So what it's saying is that the DNIS capacity is both to recognize the number, i.e.

[00:23:55] Speaker 02:
that was number dial, and then to associate it with American Express Reservations instead of United Airlines.

[00:24:02] Speaker 02:
So isn't, the language has just been quoted to me in column 6, isn't that talking about what the function of claim 18 is?

[00:24:13] Speaker 05:
I think what column 6 and what this disclosure is talking about is it says you do have to go through the interface to connect to the processors.

[00:24:20] Speaker 05:
You also have to connect

[00:24:22] Speaker 05:
from the interface to the switch.

[00:24:24] Speaker 05:
So the interface doesn't actually perform the claim function by itself.

[00:24:28] Speaker 05:
And the Appellant's Council said that was the main reason why the call data analyzer could not be the corresponding structure, because it does not perform the claim function by itself.

[00:24:38] Speaker 05:
But the case law is clear, just because a connection is required to enable the corresponding structure to perform the claim function doesn't make the connection part of the corresponding structure.

[00:24:54] Speaker 02:
Exactly, column four.

[00:24:56] Speaker 02:
And to provide control to the call data analyzer.

[00:24:59] Speaker 05:
Yes, it states that the DNIS capability, quote, provides control through the call data analyzer.

[00:25:05] Speaker 02:
Okay, so let's assume for purposes of argument that those words weren't in the spec and to provide control through the call data analyzer 28 wasn't in the spec.

[00:25:16] Speaker 02:
Okay.

[00:25:16] Speaker 02:
Then what would your argument be against what we see in the disclosure in column six?

[00:25:22] Speaker 05:
The disclosure in Column 6... That needs to be substantially weak, correct?

[00:25:27] Speaker 05:
It would be, because you do have to look to the specification to identify the corresponding structure that actually performs the claim function, and only the corresponding structure that performs the claim function.

[00:25:40] Speaker 02:
If you look at Column 5... What do you do with your adversary's argument that the word to provide control is just generic, it's kind of a general description, provides some kind of control?

[00:25:49] Speaker 02:
whereas column 6 talks about specific control, i.e.

[00:25:53] Speaker 02:
identifying the processor.

[00:26:01] Speaker 02:
So I mean, you have competing disclosures here.

[00:26:05] Speaker 02:
Would you agree with that?

[00:26:07] Speaker 05:
Well, I would argue that under his argument that the corresponding structure must perform the claim function by itself, if that were true, you would actually need to include not only the interface, but you'd have to have the switch.

[00:26:20] Speaker 05:
And you can't connect to the processor.

[00:26:23] Speaker 02:
I think your adversary has agreed that the 20A structure doesn't have anything to do with voice routing issues.

[00:26:31] Speaker 05:
That's exactly right.

[00:26:32] Speaker 05:
The voice functionality provided by the interfacing cat.

[00:26:35] Speaker 02:
That's in a processor someplace else, right?

[00:26:40] Speaker 05:
That has a separate component that has nothing to do with the claim function.

[00:26:44] Speaker 05:
But he had his way.

[00:26:46] Speaker 02:
structure associated with voice recognition would be included within this particular means by function claim, correct?

[00:26:55] Speaker 05:
correct is part of the corresponding structure.

[00:26:57] Speaker 05:
It could arguably be part of the corresponding structure, but when determining whether a prior art structure is equivalent, it's actually impermissible to consider subcomponents that aren't clearly linked to the claim function.

[00:27:13] Speaker 02:
Can you explain to me what the language in column 6 to which your adversary points, what that means?

[00:27:18] Speaker 02:
What's that all about?

[00:27:20] Speaker 05:
This is actually just describing how the call is routed, and if you again look at Figure 1 on page 25 of the Joint Dependence, it's saying that the automatic call... Once the call signal comes in, right?

[00:27:35] Speaker 05:
The call signal comes in, right?

[00:27:37] Speaker 05:
The automatic call distributor, AC1, okay?

[00:27:40] Speaker 02:
The DNS technique, which is what the claim limitation is talking about, right?

[00:27:46] Speaker 05:
And that's rendered available by the call data analyzer.

[00:27:50] Speaker 05:
And it's just describing how this call is routed.

[00:27:53] Speaker 05:
It goes from the call distributor to the interface and the switch.

[00:28:01] Speaker 05:
So then it goes to the switch.

[00:28:03] Speaker 05:
And then it connects to the processors.

[00:28:05] Speaker 05:
It's just describing how the call is routed.

[00:28:08] Speaker 05:
It's not describing what's the corresponding structure of the means plus function limitation.

[00:28:18] Speaker 02:
What isn't the million dollar question here?

[00:28:21] Speaker 02:
What structure in this patent actually identifies that 3333, that telephone number, goes to a particular processor?

[00:28:34] Speaker 05:
That is the key.

[00:28:35] Speaker 05:
Isn't that the element in the room?

[00:28:37] Speaker 05:
Yes.

[00:28:37] Speaker 05:
The key is identifying the dialed number, which is done by DNIS.

[00:28:43] Speaker 02:
Identifying the dialed number to associate with a particular... As I say, frequently companies will change their menus.

[00:28:51] Speaker 02:
You know what I mean?

[00:28:52] Speaker 02:
I don't know that, but a processor knows that.

[00:28:55] Speaker 02:
Right.

[00:28:55] Speaker 05:
But even if you reprogram the menu, as long as the phone number is the

[00:28:59] Speaker 05:
same, it's going to go to the correct routine.

[00:29:02] Speaker 02:
It goes to the correct routine because there is a processor that recognizes that number when it comes in and knows that it goes here instead of there.

[00:29:13] Speaker 05:
Right.

[00:29:13] Speaker 05:
Well, the processor is just designed to carry out a particular format.

[00:29:17] Speaker 05:
Processor 1 could be American Airlines, processor 2 could be a health survey.

[00:29:21] Speaker 05:
The call data analyzer just needs to know where to route 3333 to American Airlines.

[00:29:26] Speaker 05:
And if you change that number, you just need to somehow reprogram the call data analyzer to understand that processor 1 is now 3331.

[00:29:34] Speaker 02:
Is there any description anywhere in the spec?

[00:29:40] Speaker 02:
talking about how it is that the patent knows which processor to send a particular telephone number to once it receives the number.

[00:29:53] Speaker 02:
Other than at the bottom of column four where they say 20A provides control.

[00:30:00] Speaker 05:
It does not go into detail about how the DNIS is implemented.

[00:30:04] Speaker 05:
All it does in column 6, it refers to DNIS technology as a standard technology.

[00:30:10] Speaker 05:
So they don't go into detail about how the call data analyzer is programmed or what type of algorithm it has.

[00:30:16] Speaker 05:
It just says it's a standard technique.

[00:30:19] Speaker 05:
And when you look at the interface and how it describes what the interface actually does.

[00:30:23] Speaker 02:
Why couldn't I mean the switch could perform that function?

[00:30:26] Speaker 02:
Do you look at the electronics here?

[00:30:28] Speaker 02:
Your call data analyzer and your interface can simply take the numbers being dialed in and ship the number right into the switch.

[00:30:37] Speaker 02:
And the switch could be programmed, couldn't it, to know which processor to send the call to.

[00:30:43] Speaker 05:
That's possible.

[00:30:45] Speaker 05:
The specification doesn't say anything about the switch actually doing that.

[00:30:49] Speaker 05:
We have to rely on what the specification discloses here.

[00:30:52] Speaker 02:
What I'm trying to get at is that the only footprint I can find in the spec at all that tells me how the system knows to which processor to send a call to.

[00:31:05] Speaker 02:
Let's assume that it wants to go to American Airlines instead of United.

[00:31:10] Speaker 02:
So the only thing I could find was this 20A reference to provide control, which supports your case.

[00:31:16] Speaker 02:
Exactly.

[00:31:16] Speaker 02:
But I couldn't find anything else anywhere in the patent that is actually describing the precise function of making certain that the telephone call gets to the right piece of input through a processor to the right place.

[00:31:30] Speaker 05:
Yeah, and the specification does not provide great detail in how that programming, how the algorithms work.

[00:31:37] Speaker 02:
The only disclosure of control, you're correct, is in column four where it says... Our law requires clearly delineating the structure and the spec associated with the function.

[00:31:48] Speaker 02:
This is a real bare case, isn't it?

[00:31:52] Speaker 05:
It is a fairly bare case, but I think there's enough here to show that the call data... But you didn't have any indefinite rejections.

[00:31:59] Speaker 05:
There was no indefinite rejection, you're right.

[00:32:01] Speaker 05:
I think on its face, if you're looking at this for the first time, there could be some issue with indefiniteness, but that's not an issue that we're dealing with.

[00:32:11] Speaker 02:
And so why is it that the PTO said if we were to agree with your adversary that either the board got the function wrong or they got the structure associated with the function wrong, you say we have to remand the case?

[00:32:27] Speaker 05:
Because their argument for a reversal, they cite to Henry Donaldson.

[00:32:32] Speaker 05:
And in that case, the board made a factual finding that the prior reference to Swift disclosed a hopper having sloped sides that were rigid.

[00:32:41] Speaker 05:
And the Fed Circuit, when it construed the Means Plus Function Claim, found... So your problem here is that the board didn't give you an alternative grant.

[00:32:49] Speaker 05:
Here the board did not make any factual finding.

[00:32:53] Speaker 02:
They didn't back up behind the examiner and say, regardless of what it is you want to pick between the structures that are disclosed, this is obvious.

[00:33:07] Speaker 02:
The prior, I mean, I thought the examiner's ruling was that even on Katz's take on the case, the examiner said then that you're still, like, the prior said, he could work your claim.

[00:33:22] Speaker 02:
That's correct, yes.

[00:33:23] Speaker 02:
But I mean, what I'm saying is the board didn't, the board could have wanted to, given an alternative holding.

[00:33:29] Speaker 05:
They didn't give an express alternative holding.

[00:33:31] Speaker 05:
What they did say, if you look at page six,

[00:33:34] Speaker 05:
of the joint appendix, the first page of the board's analysis, the second paragraph, and the second full sentence.

[00:33:42] Speaker 05:
They talked about what the examiner did.

[00:33:44] Speaker 05:
The examiner interpreted the language, means to control process informants of the analysis structure as a means plus function limitation, and they identified the corresponding structure as either an interface processor, a Centrum 9000, or an interface unit.

[00:33:59] Speaker 05:
The examiner further found that the DID trunk interface of Moose Miller performs the function specified in the claim.

[00:34:06] Speaker 05:
And it is the same structure or an equivalent structure to the means plus function limitation.

[00:34:12] Speaker 05:
And the board said it agreed with the examiner.

[00:34:15] Speaker 05:
And then it went on to say, we actually find that the means plus function limitation should be consumed differently.

[00:34:22] Speaker 05:
But they did agree with it.

[00:34:23] Speaker 05:
You're not arguing.

[00:34:24] Speaker 05:
You're not trying to say that's an alternative.

[00:34:27] Speaker 05:
They didn't, it's kind of confusing because they didn't expressly say that under both claims instructions, it's an alternative, you know, ground of rejection.

[00:34:36] Speaker 02:
Didn't have the extra sentence that said, and therefore we have an alternative holding.

[00:34:42] Speaker 02:
They didn't say anything about... What I'm trying to get at is that because of your what I call concession in your brief, we've got to send this case back.

[00:34:51] Speaker 02:
I would feel obligated to send it back if we were to agree with Kat's own merits of the initial appeal.

[00:34:58] Speaker 02:
It just seemed to me like a waste of time.

[00:35:00] Speaker 05:
Yeah, I don't think you necessarily have to send it back.

[00:35:02] Speaker 05:
I think there's enough support in the record here in what we just discussed in the board decision, what the examiner did, that if you feel confident that the board would affirm the rejection even under Katz's proposed construction, which the examiner actually used,

[00:35:18] Speaker 05:
If you feel confident that the board would make the same rejection and affirm it, you can actually use your discretion to affirm the board's decision.

[00:35:26] Speaker 05:
If you're not confident, you also have discretion to remit.

[00:35:29] Speaker 05:
I see I'm out of time here.

[00:35:31] Speaker 05:
Thank you.

[00:35:39] Speaker 01:
Your Honor, several points.

[00:35:42] Speaker 01:
critically, critically important to correctly identify and construe and understand the recited function.

[00:35:48] Speaker 01:
It's means to control processing formats.

[00:35:51] Speaker 01:
And this was emphasized by the examiner, JA 2277, underlined, what is controlled are the processing formats.

[00:35:59] Speaker 01:
It's not controlling Venus.

[00:36:00] Speaker 01:
It's controlling the processing formats as a matter of grammar, logic, and the description and the specification.

[00:36:07] Speaker 01:
Secondly, the call data.

[00:36:08] Speaker 02:
What does it mean to be controlling the process?

[00:36:11] Speaker 01:
Processing formats so the processor implements processors implement different formats which are essentially interactive applications This interface 20 is the structure that controls those as in the passages We looked at zero description whatsoever anywhere in the record that the call data analyzer itself is All it does is exactly as its name indicates there's no further description and

[00:36:36] Speaker 01:
analyzes call data and incoming call data stream comes in.

[00:36:40] Speaker 01:
That needs to be recognized and interpreted.

[00:36:42] Speaker 01:
It may be digital, analog.

[00:36:44] Speaker 01:
It's information comes in, needs to be analyzed, and that's all it does.

[00:36:48] Speaker 01:
It analyzes it to provide that BNAS... Analyze it for what purpose?

[00:36:54] Speaker 02:
To pull out... Analyze it to answer what question?

[00:36:56] Speaker 01:
To pull out the DINAS.

[00:36:58] Speaker 01:
To tell the interface processor, the interface 20, what's the DINAS?

[00:37:03] Speaker 01:
The interface device, that's how it learns what the DNS is, is from the call data analyzer.

[00:37:08] Speaker 01:
It analyzes call data.

[00:37:10] Speaker 01:
It interfaces the device that uses and controls using that information as expressly described throughout the specification.

[00:37:17] Speaker 01:
There's a zero description.

[00:37:18] Speaker 01:
There's some reference by council that call data analyzer could be programmed.

[00:37:22] Speaker 01:
Or it makes routing decisions.

[00:37:30] Speaker 01:
What provides control is the interface 20, including the call data analyzer.

[00:37:37] Speaker 01:
The text of this pattern says control is provided through the call data analyzer is the text of the patent is provided by something else, namely the interface 20 as a whole.

[00:37:52] Speaker 01:
provided through the call data analyzer using call data analyzer.

[00:37:56] Speaker 01:
It's certainly part of the function, or part of the structure, but it's not the complete statistic.

[00:38:00] Speaker 02:
I still understand why we have 20A and what 20A is simply recognizing that the number dial was the number dial or it was analog number as opposed to digital number?

[00:38:12] Speaker 01:
The system receives call data.

[00:38:14] Speaker 01:
It's an incoming data stream.

[00:38:15] Speaker 01:
It needs to be interpreted.

[00:38:17] Speaker 02:
The call data analyzer.

[00:38:20] Speaker 01:
It takes various forms, digital or analog.

[00:38:22] Speaker 01:
It needs to recognize what's in that data and provide that information, analyze it.

[00:38:27] Speaker 01:
That's all it does.

[00:38:29] Speaker 01:
There's no description that it controls.

[00:38:31] Speaker 02:
It provides the data when it analyzes what the analytic reports say.

[00:38:37] Speaker 01:
That's not described and that's not the claim function.

[00:38:39] Speaker 01:
The claim function is what's performed by the interface 20.

[00:38:44] Speaker 01:
The connection, which has the processing capability that the Caldian analyzer does not have.

[00:38:50] Speaker 01:
And very quickly, if I could just have a few more seconds on the point of if the court were to agree with our claim construction, there is no basis to remand.

[00:39:01] Speaker 01:
There's nothing in the record below.

[00:39:02] Speaker 01:
This is a multi-year re-examination.

[00:39:03] Speaker 01:
Never once did the examiner in any office action or the answer or the board ever rely on the Yoshizawa reference as having any structural input into this means plus function claim element.

[00:39:15] Speaker 01:
Zero.

[00:39:15] Speaker 01:
There's nothing in the record whatsoever.

[00:39:18] Speaker 01:
it's been conceded by the board in the briefing although it may be walked back from that in the argument that if the clink construction is correct moose miller does not disclose uh... this uh... claim element under the patent owner's proposed construction uh... thank you your honor

[00:39:57] Speaker 03:
Yeah, we're going to turn it to tomorrow morning at 10.