[00:00:00] Speaker 03:
The next case for argument is 15-1327, enraged court.

[00:00:51] Speaker 03:
Whenever you're ready.

[00:01:07] Speaker 01:
Good morning.

[00:01:08] Speaker 01:
My name is Charles Rogers with the firm of Connelly Rose and I represent the appellants.

[00:01:15] Speaker 01:
The inventions at issue in this case relate to payment schedule enforcement methods.

[00:01:19] Speaker 01:
The best example being

[00:01:21] Speaker 01:
the enforcement of payment schedules, which is periodic payment due dates for vehicles purchased on credit.

[00:01:29] Speaker 01:
And the particular claims at issue, the independent claims 17, 25, and 35, recite several improvements, including starting with claims 17, or refer to that as future contingent disablement, which is the instruction to disable the product at a specified time

[00:01:50] Speaker 01:
unless an additional message is received.

[00:01:53] Speaker 01:
And the best example of that additional message would be a message confirming that payment has been made, which would then stop or defer disablement of a vehicle.

[00:02:03] Speaker 01:
The next claim 25 is disablement

[00:02:06] Speaker 03:
Well, let me short circuit this.

[00:02:08] Speaker 03:
We've all read the briefs in their entirety.

[00:02:10] Speaker 03:
We've all read the claims.

[00:02:11] Speaker 03:
So you've got several claims that are being challenged here on the anticipatory finding.

[00:02:16] Speaker 03:
Why don't you give us your best argument with respect to why the board was wrong with respect to each of those claims?

[00:02:23] Speaker 01:
Yes.

[00:02:23] Speaker 01:
So I'll go straight to claim 17.

[00:02:25] Speaker 01:
I'll go in numerical order.

[00:02:28] Speaker 01:
So claim 17 is what I referred to as future contingent disablement.

[00:02:34] Speaker 01:
and the claims recite a message that instructs the device to disable the product at a specified time in the event no additional messages are received by the device.

[00:02:46] Speaker 01:
And that's the important language at issue here.

[00:02:49] Speaker 01:
The claim requires the capability to not disable if an additional message is received.

[00:02:55] Speaker 01:
So another way to say this is disable unless another message is received.

[00:03:03] Speaker 01:
And the best example, of course, is payment.

[00:03:06] Speaker 01:
If there's a payment confirmation message that's received, then that either stops or defers that disablement that otherwise would occur at a specified time.

[00:03:19] Speaker 01:
And what we have here is the examiner in the rejections, the board on appeal, and now the board in affirming the rejections, and now the director on appeal.

[00:03:30] Speaker 01:
They completely ignore this additional messages limitation.

[00:03:35] Speaker 01:
They point to Bishop.

[00:03:37] Speaker 01:
This is a 102.

[00:03:38] Speaker 01:
Okay.

[00:03:39] Speaker 03:
I misunderstood that.

[00:03:41] Speaker 03:
I mean, my understanding was the dispute here was on the term, the construction of the term at a specified time and the board.

[00:03:48] Speaker 01:
No.

[00:03:48] Speaker 03:
Okay.

[00:03:48] Speaker 03:
It's not.

[00:03:49] Speaker 01:
No.

[00:03:49] Speaker 03:
Okay.

[00:03:49] Speaker 03:
What is the, what specific language in claim 17 is the dispute over?

[00:03:54] Speaker 01:
Everything after specified time.

[00:03:58] Speaker 01:
And the reason why that's a dispute.

[00:04:01] Speaker 03:
So the dispute is the construction of in the event no additional messages are received by the device?

[00:04:07] Speaker 01:
Well, I don't know if I'd call it a claim construction issue.

[00:04:11] Speaker 01:
I know in previous appeals there's a question of what's claim construction versus what's applying the construction.

[00:04:17] Speaker 01:
But in this case, what we have here is really just ignoring the claim altogether.

[00:04:23] Speaker 01:
I don't see any interpretation of this claim language.

[00:04:27] Speaker 01:
I don't see any

[00:04:28] Speaker 01:
application of this claim language to the prior art is just ignored.

[00:04:32] Speaker 01:
And the way that it is ignored by the examiner and the board is when they refer to Bishop as 102 invalidating anticipation reference, they refer to the language, the disclosure in Bishop that has a disablement at a predetermined time of day.

[00:04:51] Speaker 01:
It also says, or after expiration of a predetermined time of day, but I view that all as the same, it's a predetermined time.

[00:04:58] Speaker 01:
And while one could consider that to be a disclosure of disablement at a specified time, there is nothing in the disclosure that has the rest of this critical language, which is not just a message instructing disablement at a specified time, but it is a message instructing for disablement at a specified time, unless another message is received.

[00:05:25] Speaker 01:
And it's the language that says, in the event

[00:05:28] Speaker 01:
no additional messages are received by the device.

[00:05:31] Speaker 01:
And once again, the best example of this in the spec is an additional message confirming that a payment has been made, which makes sense because if there's an instruction to disable, for example, a vehicle at a specified time.

[00:05:46] Speaker 04:
Does your position at the PTAP completely ignore that limitation?

[00:05:50] Speaker 01:
Absolutely, completely ignored it.

[00:05:52] Speaker 01:
And if you look at the language where the examiner makes the rejection and then the board

[00:05:58] Speaker 01:
affirms it, once again, what they refer to is the disclosure in Bishop that refers to, now it's actually referring to a warning, but let's just assume for the purpose of argument that it's also talking about an instruction to disable.

[00:06:16] Speaker 01:
The main point is, even if it's an instruction to disable, it's at a predetermined time.

[00:06:22] Speaker 01:
And there's nothing, absolutely nothing in the entire disclosure of Bishop that says,

[00:06:28] Speaker 01:
that it's instruction to disable at a predetermined or specified time unless an additional message is received.

[00:06:38] Speaker 01:
And the way this works in the real world, and as described, that's the example once again as a vehicle.

[00:06:46] Speaker 01:
The instruction message goes out to the device that's connected to the product, the vehicle, that says,

[00:06:57] Speaker 01:
disable at a specified time.

[00:06:59] Speaker 01:
Best example would be when the payment's due or maybe the day after the payment's due so that if a payment is missed, it's going to disable.

[00:07:09] Speaker 01:
In fact, it's going to disable even if a payment is made if there's not an additional message confirming that payment was made.

[00:07:16] Speaker 01:
And so that's why when you look at the way that this claim was rejected and the way that was affirmed by the board,

[00:07:26] Speaker 01:
There is just a complete glossing over, complete ignoring of this language, like it's read out of the claim.

[00:07:32] Speaker 01:
And it's a critical limitation in the claim, and it can't be ignored.

[00:07:36] Speaker 01:
It has to be addressed.

[00:07:37] Speaker 01:
And so while this court would affirm fact findings when they're supported by substantial evidence, this is a case where there's absolutely no fact finding to affirm at all.

[00:07:50] Speaker 01:
It's an absence of a fact finding on a critical issue.

[00:07:56] Speaker 03:
I want to move on to claim 25.

[00:07:59] Speaker 01:
Okay, so claim 25.

[00:08:01] Speaker 01:
Claim 25, this is another example of claim limitations being ignored.

[00:08:07] Speaker 01:
You have disablement and then re-enablement after payment is made, payment by way of a credit card reader coupled to the product.

[00:08:16] Speaker 04:
I have a question for you about the credit card reader now.

[00:08:18] Speaker 04:
You don't contend that that's a novel concept.

[00:08:21] Speaker 04:
Credit card readers were known, right?

[00:08:23] Speaker 04:
Because in your PAC classification you just say,

[00:08:26] Speaker 04:
you refer to the vehicle could be equipped with a credit card reader not shown to take payments.

[00:08:31] Speaker 04:
So it's not like you think that that's something that people weren't aware of, it wasn't in existence at the time, or you weren't showing it, right?

[00:08:39] Speaker 01:
Correct.

[00:08:39] Speaker 01:
And of course, people were aware of credit card readers.

[00:08:43] Speaker 01:
One organized skill in the art understands what a credit card reader is.

[00:08:46] Speaker 01:
The key is that this is a new innovation in this line of products where you have a credit card reader

[00:08:53] Speaker 01:
coupled to the product, which gives you two, it has two aspects to it.

[00:08:58] Speaker 01:
It's, and I'll refer to that as cytos of payment and the means of payment.

[00:09:03] Speaker 01:
And the credit card reader is coupled to the product, which is the cytos of the payment.

[00:09:08] Speaker 01:
So you know payment is made at the product as opposed to what you see in Palmer.

[00:09:14] Speaker 01:
You don't see any payment in Bishop, but it's understood what happened back then.

[00:09:17] Speaker 01:
In Palmer, there's payment at the store or mailing to the store.

[00:09:23] Speaker 01:
The device coupled to the product doesn't receive payment.

[00:09:27] Speaker 01:
It's just like a key.

[00:09:29] Speaker 01:
Once you pay, you get a key that you go unlock the door.

[00:09:33] Speaker 01:
You're still paying at the store, either in person or by mail.

[00:09:37] Speaker 01:
And so this is an example, once again, where the way the rejection was made and the way it was affirmed by the board is they take the Palmer optical card reader, which is not

[00:09:52] Speaker 04:
It's like a store credit, right?

[00:09:56] Speaker 04:
So therefore it's a credit card reader because what in effect is on that card is a store credit.

[00:10:02] Speaker 04:
So they say that reads broadest reasonable construction of credit card reader would cover something with a store credit on the card.

[00:10:09] Speaker 01:
Right.

[00:10:09] Speaker 01:
And the reason why that's incorrect fact findings not supported by substantial evidence is because the payment in that case is made at the store.

[00:10:19] Speaker 01:
It's or by mailing to the store.

[00:10:22] Speaker 01:
what the examiner refers to as the convenience of paying at the device.

[00:10:28] Speaker 01:
And so when you look at the way the rejection was made, it's an obviousness rejection.

[00:10:33] Speaker 01:
So there was some mention of motivation.

[00:10:35] Speaker 01:
And the examiner refers to the convenience that's provided.

[00:10:41] Speaker 01:
There's a primary reference that's Bishop and there's nothing about payment in there, not my credit card, really not by any way.

[00:10:48] Speaker 01:
And so that's,

[00:10:50] Speaker 01:
There's a defect in Bishop.

[00:10:51] Speaker 01:
They bring in now Palmer to cure that defect.

[00:10:55] Speaker 01:
And so supposedly, there's this motivation to combine for convenience.

[00:11:00] Speaker 01:
And the convenience would be paying at the device by credit card.

[00:11:03] Speaker 01:
But when you look to Palmer, it actually teaches away from that.

[00:11:06] Speaker 01:
Palmer doesn't have payment at the device.

[00:11:08] Speaker 01:
It doesn't have the convenience that's provided by this invention by paying at the device.

[00:11:12] Speaker 01:
In Palmer, you go to the store to pay, or you mail payment to the store.

[00:11:17] Speaker 01:
So Palmer actually teaches away.

[00:11:18] Speaker 01:
It doesn't cure this defect.

[00:11:20] Speaker 01:
in Bishop, and so by the examiner finding, they didn't even find that there was a credit card reader.

[00:11:27] Speaker 01:
They just said the optical card in Palmer teaches a credit card.

[00:11:32] Speaker 01:
They missed the point completely of the convenience of paying at the device, and the specific, it's like they read out the claim language of payment by way of credit card reader coupled to the device.

[00:11:45] Speaker 04:
Your point is that even if you interpret the word credit card reader as broadly as they do,

[00:11:50] Speaker 04:
to include reading in something that's a store credit or a debit card or something like that, that it's still there's no motivation to combine because the secondary reference with its alleged credit card reader, nobody would turn to that to make it more convenient.

[00:12:06] Speaker 01:
Right.

[00:12:06] Speaker 01:
If it was so obvious to have this convenience of paying for the device, you wouldn't have Palmer talking about

[00:12:12] Speaker 01:
Go to the store and make your payment there, or even more inconvenient, mail your payment to the store and then wait to be mailed back or go pick up at the store this key that you then go use to unlock the device.

[00:12:25] Speaker 01:
What we have in this claim is true convenience, is paying at the device by credit card.

[00:12:31] Speaker 01:
And once again, it's like they completely read out the two aspects of this claim language, payment by way of credit card reader coupled to the device.

[00:12:42] Speaker 01:
the site of the payment and the means of the payment, neither one of those are in Bishop, that's admitted, and when you turn to Palmer, neither one of them are there either.

[00:12:52] Speaker 01:
It's just simply not what it's represented to be by the examiner and as affirmed by the board.

[00:12:58] Speaker 03:
You're into your rebuttal time.

[00:13:00] Speaker 03:
You want to spend a minute talking about claim 35?

[00:13:02] Speaker 01:
I'll go ahead and use up a minute or two of my rebuttal time so I can at least close this out.

[00:13:07] Speaker 01:
Claim 35, this is not disablement, re-enablement, any of this.

[00:13:11] Speaker 01:
This is something completely separate.

[00:13:12] Speaker 01:
This is a second message.

[00:13:14] Speaker 01:
And the second message is a very specific Marquish group of four selected particular types of notifications and instructions.

[00:13:23] Speaker 01:
And once again, these limitations are ignored.

[00:13:26] Speaker 01:
There is a rejection based upon language in Bishop where they're referring to warnings and notifications, advertisements.

[00:13:38] Speaker 01:
The notifications and advertisements

[00:13:40] Speaker 01:
are not linked to the payment schedule.

[00:13:42] Speaker 01:
That's the key because the first message is linked to a payment schedule.

[00:13:45] Speaker 01:
The second message is responsive to the first message.

[00:13:48] Speaker 01:
So you're talking about these notifications and instructions that are sent responsive to a payment schedule.

[00:13:56] Speaker 01:
And in the real world, one example would be payments come and do.

[00:14:01] Speaker 01:
So now you have a method where you can say, all right, this is for when you're coming into the store to pay.

[00:14:07] Speaker 01:
You know you're coming into the store to pay.

[00:14:08] Speaker 01:
The customer's coming in.

[00:14:09] Speaker 01:
so let's send them some advertisements, some notifications, instructions.

[00:14:13] Speaker 01:
Very innovative, not done before.

[00:14:15] Speaker 01:
Everything they point to in Bishop is not tied to the payment schedule, and that's the key.

[00:14:20] Speaker 01:
There's an acknowledgement signal.

[00:14:22] Speaker 01:
That's internal, that's the device acknowledging parts to itself that signals are received or functions performed.

[00:14:29] Speaker 01:
It's internal, it's not an output message to a user, which is what these particular output messages are, notifications and instructions.

[00:14:36] Speaker 01:
And then finally,

[00:14:38] Speaker 01:
Acknowledgement signals are certainly not in this Marcoosh group.

[00:14:41] Speaker 01:
They're not notifications or instructions.

[00:14:43] Speaker 01:
They're just internal acknowledgements of signals within the device.

[00:14:47] Speaker 01:
And I'll reserve, hopefully, the rest of my time that I have.

[00:14:49] Speaker 01:
Thank you.

[00:15:00] Speaker 02:
May I please the court?

[00:15:03] Speaker 02:
The board's decision to affirm the rejections of claims 17, 25, and 35 should be affirmed.

[00:15:08] Speaker 02:
The board's finding of facts for each of the claims is supported by relevant evidence that a reasonable mind would find adequate.

[00:15:15] Speaker 02:
And that's the standard of review here.

[00:15:16] Speaker 02:
This is court held in N. Ray Jolly.

[00:15:19] Speaker 04:
Can you jump right into claim 17 and where it is that Bishop teaches limitation that in the event no additional messages are received by the device?

[00:15:32] Speaker 02:
Well, I will, Your Honor, although I have to say that it's a little bit confusing for the office here today to hear Schwartz say that the claim, limitation, and dispute is what follows the language at a specified time.

[00:15:47] Speaker 02:
I mean, we understand that obviously that's part of it, but our understanding was that they were specifically, and I believe they say this repeatedly in their blueberries, that their interpretation of Bishop is that when methods

[00:16:00] Speaker 02:
messages are sent that they're implemented immediately.

[00:16:03] Speaker 02:
And so the director spent some time talking about the fact that at a specified time and predetermined times for Todd and Bishop, which I think is relatively clear.

[00:16:14] Speaker 02:
I also think it's clear in Bishop that the fact that in the event an additional message isn't received is clear because we're talking about a real world application that council was referring to.

[00:16:29] Speaker 02:
And Bishop, it specifically says over and over again about disablement and enablement that you receive warnings.

[00:16:37] Speaker 02:
So you're driving your car, you haven't paid, warning, you need to pay.

[00:16:42] Speaker 02:
Warning, you need to pay.

[00:16:44] Speaker 02:
Warning, you need to pay.

[00:16:45] Speaker 02:
If you don't pay, your device is going to be disabled.

[00:16:49] Speaker 02:
And that's precisely what claim 17 says.

[00:16:53] Speaker 02:
In the absence of some additional message, for example, that payment's been received, the device

[00:16:59] Speaker 02:
will be disabled.

[00:17:00] Speaker 04:
Does Bishop expressly say that there could be another message sent saying that payment has been made and therefore this process will be interrupted?

[00:17:11] Speaker 02:
Well, I guess what the claim is saying is in the event a message isn't received, it's going to be disabled and I think Bishop does teach that.

[00:17:25] Speaker 02:
But I think to the extent there's any ambiguity in some of the teachings that the examiner and the board pointed to in Bishop, I would point the court to column 18, which I think provides the kind of clarity that you're looking for.

[00:17:40] Speaker 02:
And column 18, and I'm reading at approximately line 40, and this is on A1107, it says, for example, prior to disabling the starter power mechanism in a piece of equipment,

[00:17:55] Speaker 02:
The warning device can provide audio warnings to the user of the equipment that the starter power supply mechanism of the equipment will be disabled unless the operator performs certain actions, e.g.

[00:18:07] Speaker 02:
required maintenance.

[00:18:09] Speaker 02:
And that lines up very nicely with what claim 17 is saying.

[00:18:14] Speaker 02:
There was also some discussion in the brief that the starter mechanism or different aspects of Bishop

[00:18:22] Speaker 02:
doesn't teach, doesn't have a timer or a processor.

[00:18:26] Speaker 02:
So because there's no timer or processor, it can't be a predetermined time or can't be a time disabled message that would permit some message in between being sent to stop disablement.

[00:18:40] Speaker 02:
But I think if you read Bishop, it discusses processes and timers being taught throughout and it's certainly not limited to the warning system.

[00:18:50] Speaker 02:
Turning to claim 25, which is the obviousness rejection with the combination of Bishop and Palmer, the examiner and the board, clearly we're looking to Palmer because Palmer is an example where you have a reader attached to a device.

[00:19:14] Speaker 02:
I mean, if you look at the claim,

[00:19:17] Speaker 02:
And I suppose they say this has never been done before in terms of having this reader combined to the device.

[00:19:24] Speaker 02:
I mean, here you have the examiner looking for analogous art, finding a rent-to-own situation, finding a device with a card reader attached to it, reading a card, enabling use of the product.

[00:19:35] Speaker 02:
I mean, it's right on point down the line.

[00:19:38] Speaker 02:
And then in the blue brief, they say, well, but that's an optical card reader.

[00:19:43] Speaker 02:
That's not a credit card reader.

[00:19:47] Speaker 02:
You know, this is during examination.

[00:19:49] Speaker 02:
This is an application, not an issued patent.

[00:19:52] Speaker 02:
So they can clarify.

[00:19:53] Speaker 02:
I mean, not only did they not clarify, I think they've been ever backwards to not show any information about the credit card reader.

[00:20:02] Speaker 03:
Well, how are they supposed to clarify?

[00:20:04] Speaker 03:
An optical reader is different than a credit card reader, right?

[00:20:09] Speaker 03:
So they're clarified by calling it a credit card reader.

[00:20:13] Speaker 02:
I think to you and me, a credit card reader has a plain meaning, but to a person of ordinary skill in the art in this field, I think it would be more broad.

[00:20:24] Speaker 03:
They could have overcome this rejection by simply saying by way of a credit card reader that does not include an optical reader?

[00:20:37] Speaker 02:
For example, and I understand this is an example from today, not at the time the application was filed, but now we're using our cell phones to take pictures of credit cards to process credit card transaction.

[00:20:48] Speaker 02:
And that's, in effect, our phone is an optical card reader.

[00:20:52] Speaker 02:
And back in the day, also used as manual flatbed sliders, which were credit card readers that would slide over the phone and take an embossed impression.

[00:21:02] Speaker 04:
Is that the key to station credit card versus other kinds of cards?

[00:21:05] Speaker 04:
Not necessarily what kind of reader it is.

[00:21:07] Speaker 04:
Because all these mechanisms you're talking about are different technologies, but nonetheless, they all are reading a credit card.

[00:21:15] Speaker 02:
Well, I think it's two sides of the same coin, because the claim says credit card reader, and then you're asking, well, what does it read?

[00:21:24] Speaker 02:
I mean, what it reads informs the meaning of credit card reader, but we all know that credit card readers can read more than credit cards.

[00:21:32] Speaker 02:
They can read

[00:21:33] Speaker 02:
Secured credit cards, I mean, the position of appellant is credit card reader has to read a card that includes a promise of future payment.

[00:21:42] Speaker 02:
This is a very narrow reading that is not supported in the specification.

[00:21:47] Speaker 02:
Credit card readers, as a person of ordinary skill in the art would understand, can read more than a credit card.

[00:21:53] Speaker 02:
It can read a gift card, it can read a debit card, it can read a security card.

[00:21:57] Speaker 04:
What evidence are you relying on that understanding from one of ordinary skill in the art?

[00:22:03] Speaker 02:
I'm, we're grasping because there is no discussion either way in the specification.

[00:22:09] Speaker 02:
So we're trying to conceive of what the broadest reasonable interpretation would be.

[00:22:14] Speaker 02:
And their opening position in their blue brief was that a credit card reader means reading a card that has a promise of future payments.

[00:22:24] Speaker 02:
And I think in rebuttal to that, what the office is saying, that a credit card reader can read a lot of different things.

[00:22:31] Speaker 02:
not just a card with a promise of future payment, that's too narrow.

[00:22:35] Speaker 02:
And as we said, it would have been- Can I go back to my question?

[00:22:42] Speaker 03:
Sure.

[00:22:42] Speaker 03:
How could they have narrowed it to make it clear?

[00:22:45] Speaker 02:
I think they could have, there's one line in the specification discussing this, and what it goes on to say is a different embodiment than what's actually claimed.

[00:22:54] Speaker 02:
So they could have very easily said the kinds of cards I suppose that payment was taken for,

[00:23:01] Speaker 02:
or could distinguish a credit card reader that the inner workings of it.

[00:23:06] Speaker 02:
I mean, there are different kinds of credit card readers and how they operate.

[00:23:09] Speaker 02:
But I think what the examiner was saying, which the office's position was reasonable under the circumstances with no express definition, is that when you have a reader coupled to the product that's reading a card that represents that payment has been made,

[00:23:27] Speaker 02:
to allow access to the device, to enable use of the device, that is a proper basis for an obviousness rejection of this particular claim.

[00:23:37] Speaker 02:
And as we said, the applicant could have clarified the exact way its product works to get around that broad teaching.

[00:23:48] Speaker 02:
I also think the examiner was looking to Palmer because he wanted to show that this idea of

[00:23:57] Speaker 02:
Enabling access to a product by way of a card reader is an old idea.

[00:24:01] Speaker 02:
Palmer's from 1987, and it's a very tiny leap to go from a card reader attached to a television to, as I think you said, Judge Dole, credit card.

[00:24:14] Speaker 02:
A credit card reader, there's nothing new or inventive about that.

[00:24:19] Speaker 03:
That's right, but the analysis would be a different one than we have here, right?

[00:24:23] Speaker 03:
You would say, okay, this is different, but the differences between an optical reader and a credit card reader are so slight that one would have easily, one skilled in the art would have easily been able to substitute one for the other.

[00:24:38] Speaker 03:
That's kind of a fair analysis, right?

[00:24:40] Speaker 03:
But that's not the analysis we have here.

[00:24:41] Speaker 02:
That would be a better analysis.

[00:24:44] Speaker 02:
So the question is, was the analysis that happened here sufficient to sustain

[00:24:49] Speaker 02:
the rejection and we think it's not as good as the analysis that you just made, but we think it's sufficient.

[00:24:55] Speaker 02:
I also wanted to respond that when appellant talked about there's a motivation to combine lacking, we don't read the appellant's brief to challenge the motivation to combine.

[00:25:04] Speaker 02:
I think really what it was challenging was is it a credit card reader, is it not a credit card reader?

[00:25:11] Speaker 02:
Is it using a credit card, is it not using a credit card?

[00:25:13] Speaker 02:
That's the argument we thought that they were making.

[00:25:16] Speaker 02:
Now turning to Claim 35, this is the claim about sending a responsive message.

[00:25:24] Speaker 02:
The director's position is that providing the message, providing this responsive message is taught in bishops.

[00:25:36] Speaker 02:
And the examiner and the board said it was taught in two specific ways.

[00:25:42] Speaker 02:
First, they pointed to the teaching in column five that

[00:25:46] Speaker 02:
specifically talks about messages being sent and identifies notifications, instructions, and advertisements, which is virtually identical to the language used in Claim 35.

[00:25:59] Speaker 02:
Then, when appellants said, well, it's not perfectly clear here that these messages are responsive to a first message, then the office said, well,

[00:26:12] Speaker 02:
Throughout Bishop, there's discussion of acknowledgement signals and messages being sent in response.

[00:26:18] Speaker 02:
And then they said, well, true, there are messages sent in response, but then those messages don't have the content we want, which is an advertisement or an instruction.

[00:26:29] Speaker 02:
And I think the teaching of Bishop as a whole clearly teaches what Claim 35 is talking about.

[00:26:36] Speaker 02:
It's talking about responsive messages, and it also includes the content

[00:26:42] Speaker 02:
that one could argue is or is not required by the claim.

[00:26:48] Speaker 02:
And council for appellant said, well, this is something that's just very unique.

[00:26:51] Speaker 02:
It's never been done before.

[00:26:53] Speaker 02:
You get an advertisement or instruction when you pay for something.

[00:26:57] Speaker 02:
And I think that's just overreaching.

[00:27:00] Speaker 02:
I mean, we've all made purchases and when you make a purchase, you know, you get a flurry of advertisements.

[00:27:06] Speaker 02:
I think of myself buying something at CVS and the receipt keeps printing and printing and printing.

[00:27:11] Speaker 02:
And I think the idea that we're trying to stretch these claims to include old and obvious ideas such as receiving information is going too far here.

[00:27:24] Speaker 03:
What was the date of the application here?

[00:27:29] Speaker 03:
Because we're looking at it as of that time frame, correct?

[00:27:32] Speaker 02:
Yes.

[00:27:33] Speaker 02:
So I think it was 2004.

[00:27:39] Speaker 02:
I'm not sure, Your Honor, what the priority date is, but there's no dispute that Bishop and Palmer proceed it.

[00:27:52] Speaker 02:
If Your Honors don't have any other questions, the office will conclude this argument.

[00:27:56] Speaker 02:
Thank you.

[00:28:03] Speaker 01:
The priority date is 2006.

[00:28:05] Speaker 01:
This is the time period we're looking at, February 7, 2006.

[00:28:09] Speaker 00:
Mr. Rogers, I just want to say for the record, and it's not really relevant to your argument, but if you did get a patent on this and if somebody did license it, I hope they carry a lot of insurance for the first time that they shut down an automobile by mistake.

[00:28:26] Speaker 00:
There's a computer error in payment, and the person rushes out to drive to the emergency room.

[00:28:31] Speaker 01:
Yes, and that's actually a good point.

[00:28:34] Speaker 01:
And I recognize that when I was first retained on this case,

[00:28:37] Speaker 01:
And there are mechanisms in there and actually described in the patent that talk about several free uses, emergency uses.

[00:28:47] Speaker 01:
So that issue has been addressed and I'm glad that it has.

[00:28:51] Speaker 01:
Quickly, claim 17.

[00:28:53] Speaker 01:
When you hear the director talk about, when you ask him to point to the portion of Bishop which has the disabled at a specified time unless additional messages are received,

[00:29:05] Speaker 01:
they point to warnings, and they say, warning, warning, if you don't pay, warning, if you don't pay, the device will be disabled, then an instruction sent.

[00:29:13] Speaker 01:
That's completely distinct from what's in the claim, which is an instruction already sent, and there will be disablement unless a message is received, such as confirming payment.

[00:29:25] Speaker 01:
So there are two separate different things.

[00:29:27] Speaker 01:
They're referring to warnings, warnings to the user.

[00:29:29] Speaker 01:
What the claim refers to and requires is instructions to the device.

[00:29:34] Speaker 01:
totally separate things.

[00:29:36] Speaker 01:
Another issue is this reference to column 18.

[00:29:39] Speaker 01:
I'd ask that you recognize that as the new argument was not raised below and the NRA IMES should be not considered.

[00:29:46] Speaker 01:
But once again, if you're gonna look at it, look at it and see that is what they're referring to as column 18 is not instructions to the device to disable.

[00:29:55] Speaker 01:
Once again, it's warnings, completely different.

[00:29:58] Speaker 01:
Another issue is

[00:30:00] Speaker 01:
On Palmer, they keep talking about optical card reader.

[00:30:02] Speaker 03:
We're going to take a couple new thoughts because your time has run out.

[00:30:05] Speaker 03:
So give us a final thought on Palmer.

[00:30:07] Speaker 01:
Final thought is claim 35, look at the requirement that the messages, the Marquish Group claims need to be sent responsive to a trigger event associated with the payment schedule.

[00:30:22] Speaker 01:
So think about the example where we know you're coming in for a payment, so we're going to send you these notifications.

[00:30:28] Speaker 01:
That is not anywhere mentioned in Bishop.

[00:30:31] Speaker 01:
And so to close, we'd ask that you reverse.

[00:30:37] Speaker 01:
And that's it.

[00:30:40] Speaker 01:
Thank you.

[00:30:40] Speaker 03:
Thank you.

[00:30:41] Speaker 03:
We thank both parties for the case that concludes our proceedings.

[00:30:45] Speaker 00:
All rise.

[00:30:48] Speaker 00:
The Honorable Court is adjourned until tomorrow morning.

[00:30:50] Speaker 00:
It's an o'clock a.m.