[00:00:19] Speaker 03:
Okay.

[00:00:21] Speaker 03:
Mr. Al-Salam?

[00:00:22] Speaker 03:
Yes.

[00:00:24] Speaker 00:
Thank you, Your Honor.

[00:00:28] Speaker 00:
Ramsey Al-Salam for Zillow.

[00:00:29] Speaker 00:
Zillow requests that the court vacate or reverse the board's decision finding the 674 patent, or those specific claims of the 674 patent, invalid.

[00:00:39] Speaker 00:
What the 674 patent discloses is a computer system that can automatically generate an estimated value for a property or house.

[00:00:49] Speaker 00:
It does it without having to have manual selection of comparables or manual selection or adjustment of those comparables.

[00:00:57] Speaker 00:
The computer system itself generates automatically an estimated value for the house.

[00:01:03] Speaker 03:
What can you tell us about the patent that gives us some information about automatic valuation?

[00:01:09] Speaker 03:
Because the language in the claims is not the construction that you want, right?

[00:01:15] Speaker 00:
The automatic valuation is described in this manner.

[00:01:20] Speaker 00:
In column one, the patent disparages appraiser involved valuations, and it does it on four grounds.

[00:01:29] Speaker 00:
It says they require an inspection of the property, they are subjective,

[00:01:34] Speaker 00:
They're expensive and they're time consuming.

[00:01:38] Speaker 00:
So that's how it characterizes one type of valuation, these appraiser valuations.

[00:01:44] Speaker 00:
Then it goes on to say, you can have an automatic valuation, but it would generally work on a public database and you get no input from the owner of the house.

[00:01:55] Speaker 00:
Then in column four, lines 21 to 24, after it has described the... The way the claim itself says you get input from the owner of the property, right?

[00:02:07] Speaker 00:
Well, I'm sorry.

[00:02:07] Speaker 00:
Let me just explain that so the court understands it.

[00:02:11] Speaker 00:
There is an automatic valuation.

[00:02:13] Speaker 00:
What the patent contemplates is there's an automatic valuation without any input from the homeowner.

[00:02:20] Speaker 00:
And then the homeowner puts in additional input to get a refined valuation.

[00:02:27] Speaker 00:
Let's talk about it in practice.

[00:02:29] Speaker 02:
So the automatic evaluation, I mean, this is the key, right?

[00:02:31] Speaker 02:
Correct, that initial.

[00:02:33] Speaker 02:
You're saying there's some kind of computer program that creates this automatic evaluation.

[00:02:38] Speaker 02:
Now, there's no algorithm that describes the computer program.

[00:02:43] Speaker 02:
You're now wanting us to read into this claim a limitation that describes what the program is, right?

[00:02:50] Speaker 00:
No, Your Honor.

[00:02:51] Speaker 00:
The patent describes the algorithm.

[00:02:55] Speaker 00:
There is a forest tree type of algorithm that takes comparable sales and then automatically determines a value for a house.

[00:03:04] Speaker 00:
That's the initial valuation, initial automatic valuation.

[00:03:08] Speaker 00:
Then what the customer does, or the user, the homeowner, is can then revise the assumptions associated in the database to get a refined valuation.

[00:03:20] Speaker 02:
But why isn't that the precise construction that was used?

[00:03:25] Speaker 00:
Well, the construction that was used was related to a calculation.

[00:03:30] Speaker 00:
Let me, again, so there's at least three problems with the board's construction.

[00:03:37] Speaker 00:
The patent, again, disparages appraiser-based valuations as being subjective, slow, expensive, and requiring inspection.

[00:03:46] Speaker 00:
And then it characterizes an automatic valuation as being the very opposite.

[00:03:51] Speaker 00:
In column four, lines 21 to 24, after explaining its algorithm for an automatic valuation, it says, because there's no appraiser involved, it's quick, it's inexpensive, and it's objective.

[00:04:07] Speaker 00:
Those are the way it characterizes the automatic valuation in the patent, which is directly opposite of the appraiser-based valuation that it just disparaged.

[00:04:18] Speaker 00:
Then it goes on to explain, after you get this automatic valuation, you allow the homeowner to get a refined valuation, essentially correcting problems in the database.

[00:04:30] Speaker 00:
Because that automatic valuation just worked on what was in the database.

[00:04:34] Speaker 00:
There was no human intervention other than putting in the address.

[00:04:39] Speaker 00:
The figures in the patent disclose.

[00:04:41] Speaker 02:
So I thought that your debate with the claim construction was that you wanted us to read automatic valuation to be the same as use of automated valuation model.

[00:04:53] Speaker 00:
And it is an automatic valuation model.

[00:04:56] Speaker 00:
It's a mathematical model that does an automatic valuation.

[00:05:00] Speaker 00:
AVMs, which is the acronym for automatic valuation models,

[00:05:03] Speaker 00:
have certain characteristics.

[00:05:05] Speaker 00:
One of their characteristics is there's no human being that has to pick the comparables.

[00:05:10] Speaker 00:
All of these valuations involve looking at comparable sales and then creating a valuation for the subject property based on comparable sales.

[00:05:19] Speaker 03:
I mean, I guess besides you telling us all of this, this is nowhere in the patent, right?

[00:05:23] Speaker 03:
I mean, you're telling us that in the art, something called an automatic valuation model is a very explicit thing.

[00:05:31] Speaker 03:
and not referred to in the claims.

[00:05:34] Speaker 03:
It's not even named in the claims, let alone explained.

[00:05:38] Speaker 03:
There's one reference in the spec in terms of one embodiment, right?

[00:05:41] Speaker 03:
That's it, right?

[00:05:43] Speaker 03:
So where do we get that when you use the term automatic valuation, there's the public notice, the public is on notice that we were dealing with a very explicit technical model.

[00:05:57] Speaker 00:
It doesn't have to be an explicit technical model, but the patent tells us the characteristics of an automatic valuation, that it's fast, it's cheap, it's objective, and there's no appraiser involved.

[00:06:08] Speaker 00:
That's what the patent describes as the features of an automatic valuation.

[00:06:13] Speaker 00:
Now it does itself say there's only one problem with that automatic valuation and that is it's not always accurate.

[00:06:21] Speaker 02:
So you don't really want the automatic valuation model put into the claim?

[00:06:26] Speaker 02:
What you want is the presence of an appraiser excluded from the claim?

[00:06:33] Speaker 00:
Yes, but more specifically, this is what I want.

[00:06:36] Speaker 00:
All I want is the actual definition to follow the language of the valuation being automatic.

[00:06:44] Speaker 00:
Not a calculation associated with the valuation.

[00:06:47] Speaker 00:
The valuation is automatic.

[00:06:50] Speaker 00:
This is what the board did.

[00:06:52] Speaker 00:
The board said, because we can't find an expressed definition, or they say not an implicit definition, though I would argue the definition is implicit because the criteria are described,

[00:07:02] Speaker 00:
They said, we're going to turn to the dictionary.

[00:07:05] Speaker 00:
And in the dictionary, they looked at two definitions for automatic and valuation.

[00:07:12] Speaker 00:
And the automatic valuation is fine with us.

[00:07:15] Speaker 00:
It's no human involvement.

[00:07:16] Speaker 00:
That's what automatic is.

[00:07:18] Speaker 00:
We don't dispute that.

[00:07:19] Speaker 00:
What they did is they aired when they construed valuation, because they called it a calculation.

[00:07:24] Speaker 00:
This is on A7 and A8, where they let set forth the definitions.

[00:07:29] Speaker 00:
that the definition of valuation didn't include the word calculation.

[00:07:34] Speaker 00:
But what they did then is conflated it to say, if you have any calculation that's automatic, that's part of a valuation, then you have an automatic valuation.

[00:07:44] Speaker 00:
Under their construction, and it's really the way they applied it.

[00:07:47] Speaker 03:
And what are you telling us it should be construed?

[00:07:49] Speaker 03:
I guess I'm a little, because I did have the same concern that Judge O'Malley had.

[00:07:53] Speaker 03:
I thought in your briefs before the board you were advocating.

[00:07:57] Speaker 03:
automatic valuation model, which is something very explicit, right?

[00:08:01] Speaker 00:
Well, I don't know if it's explicit.

[00:08:04] Speaker 00:
I mean, that's where we've sort of gone off track.

[00:08:07] Speaker 03:
The problem I'm having is that we've got a public notice function here, and we've got automatic valuation, and you're criticizing the PTAB for using the normal ordinary meaning of those terms.

[00:08:19] Speaker 03:
And then you're advocating something else, which is automatic valuation model, and we've got to discern what that means, too.

[00:08:26] Speaker 03:
How on earth are we supposed to be able to conclude that this is a definite pattern, definite claim?

[00:08:32] Speaker 00:
Well, first of all, I'm going to be clear.

[00:08:34] Speaker 00:
I don't think they adopted the ordinary meaning.

[00:08:36] Speaker 00:
And they certainly didn't adopt the ordinary meaning within how the patent describes an automatic valuation.

[00:08:41] Speaker 00:
And perhaps, I'm fine if we don't adopt the term automatic valuation model.

[00:08:48] Speaker 00:
But what I am not fine with is adopting automatic valuation to encompass valuations that are not automatic.

[00:08:56] Speaker 03:
So how would you, if you had to redefine, if you had to amend your claims to redefine them, to take care, to address the concerns that have been raised, how would you redraft the claim?

[00:09:06] Speaker 00:
The claim doesn't need to be redrafted.

[00:09:08] Speaker 00:
By the way, some of the claims say model.

[00:09:10] Speaker 00:
Some of the dependent claims say the automatic valuation is a geographically specific model.

[00:09:16] Speaker 00:
And the only embodiment, as their expert admitted, the only embodiment disclosed is an automatic valuation model.

[00:09:24] Speaker 00:
Model here only means it's a computer program.

[00:09:27] Speaker 00:
It's a computer program that works on a database.

[00:09:31] Speaker 00:
Now this is in stark contrast to the two primary references.

[00:09:36] Speaker 00:
Dugan and Kim both involve appraiser tools, both involve human involvement in the valuation.

[00:09:44] Speaker 00:
In the Dugan valuation, the human has to select the comparables.

[00:09:49] Speaker 00:
And perhaps it's easier to think about all of these valuations have three primary steps.

[00:09:55] Speaker 00:
To do these types of valuations, you have to select comparables, you have to adjust comparables, and then you have to generate a value.

[00:10:03] Speaker 00:
in the automatic valuation of the patent, all those three steps are done automatically.

[00:10:08] Speaker 00:
Those are all part of the valuation.

[00:10:10] Speaker 00:
The only thing the user has to do is put in the address his or her address.

[00:10:14] Speaker 03:
Well, I think the Patent Office will tell you, and we'll find out if we're right about that in a few minutes, that Dugan and Kim don't require the user to be involved in adjusting the valuation methodology.

[00:10:26] Speaker 03:
Oh, no, they do.

[00:10:27] Speaker 03:
There were disclosures.

[00:10:28] Speaker 03:
There were at least embodiments that don't require user intervention in the valuation itself.

[00:10:33] Speaker 00:
Well, the valuation is only the final calculation.

[00:10:36] Speaker 00:
The board itself admitted, for example, that they did not, for example, in A28.

[00:10:43] Speaker 00:
What do you mean the evaluation is the, I'm sorry, what did you say?

[00:10:48] Speaker 00:
All the board relied upon is the final calculation in the valuation was automatic.

[00:10:54] Speaker 00:
The entire, the board has never taken the position.

[00:10:57] Speaker 00:
that the Dugan and Kim patents have the entire valuation being automatic.

[00:11:01] Speaker 00:
The valuation includes selecting comparables and adjusting comparables.

[00:11:06] Speaker 00:
For example, Dugan expressly requires the appraiser, the only expressly disclosed user, when I say manually, to click on which comparables are to be used in the valuation process.

[00:11:21] Speaker 00:
So that part of the valuation process involves human involvement.

[00:11:26] Speaker 00:
Both Dugan and Kim, I mean Dugan has the users, the buyers themselves filling out forms.

[00:11:33] Speaker 00:
Those are forms 6A through I that have all kinds of fields that are paper forms.

[00:11:40] Speaker 00:
That's part of the valuation process.

[00:11:41] Speaker 00:
It's not automatic.

[00:11:43] Speaker 03:
So tell me, you say you don't have to redraft the claims because automatic valuation means what you say.

[00:11:51] Speaker 03:
So if you had to define automatic valuation in the specification, how would you do it?

[00:11:57] Speaker 00:
I would do it as it was done, which is that automatic valuation is done without appraiser involvement.

[00:12:03] Speaker 00:
It's cheap, objective, and fast.

[00:12:06] Speaker 03:
Those are all completely subjective terms.

[00:12:12] Speaker 02:
You know, there has to be a database.

[00:12:14] Speaker 00:
There has to be a database.

[00:12:15] Speaker 02:
All right.

[00:12:16] Speaker 02:
And so where do the comparables come from?

[00:12:19] Speaker 00:
The comparables are, well, as the patent explains, the comparables are based on public tax databases or MLS databases that show sales.

[00:12:27] Speaker 00:
They show sales and attributes of properties.

[00:12:30] Speaker 00:
So what you have is you have a database of sales that show the attributes of properties and what they sold for.

[00:12:37] Speaker 00:
Now, what an appraiser does is sort through those sales

[00:12:40] Speaker 00:
manually and figures out which are the most closest comparables and then the appraiser adjusts the sale price of those comparables to find then to estimate a value for the subject property.

[00:12:53] Speaker 00:
In the patent, all of that's done automatically.

[00:12:56] Speaker 00:
All the user does is put in his or her address, and this is on Destinments on Zillow as the figures show, and you just get generated an automatic valuation.

[00:13:07] Speaker 00:
The problem really comes down to the board having substituted calculation for valuation.

[00:13:15] Speaker 00:
And then by saying if any part of the valuation is an automatic calculation,

[00:13:20] Speaker 00:
It's automatic valuation.

[00:13:22] Speaker 02:
They wouldn't do that.

[00:13:22] Speaker 02:
But even if we accept your proposition, how is this patent not indefinite then?

[00:13:27] Speaker 00:
I'm not sure what you mean.

[00:13:28] Speaker 00:
Which part would be indefinite?

[00:13:30] Speaker 00:
There's a clear embodiment that shows what automatic valuation is.

[00:13:34] Speaker 00:
And it's distinguished from appraiser-based valuation where there has to be human involvement in selecting comparables and inspecting the property.

[00:13:43] Speaker 03:
Why don't we hear from the other person?

[00:13:46] Speaker 03:
Thank you.

[00:13:57] Speaker 01:
Good afternoon, Your Honors, and may it please the Court.

[00:14:00] Speaker 01:
The Board correctly applied the broadest reasonable interpretation in construing the phrase automatic valuation.

[00:14:08] Speaker 01:
And that standard was recently approved by this Court for inter-parties review in a case called in-rate closed-ose speed technology, which was just issued last month.

[00:14:18] Speaker 01:
And under that standard, the Board looked to the specification and found that it broadly describes

[00:14:26] Speaker 01:
a computer system for performing home valuations.

[00:14:30] Speaker 01:
Specifically, at figure one and the description thereof, it talks about just a generic sort of computer that performs home valuations.

[00:14:38] Speaker 03:
Do you need broadest reasonable interpretation here?

[00:14:40] Speaker 03:
I mean, everything with the board's analysis and so forth didn't struck me as what the, you don't need to have that loose standard, that more generous standard to get a firm tape, do you?

[00:14:52] Speaker 03:
Is that your view?

[00:14:54] Speaker 03:
I mean, as opposed to that the board could give it its ordinary meaning and still come out the way the board did.

[00:15:01] Speaker 01:
Well, I think possibly, yes.

[00:15:04] Speaker 01:
But the board basically looked at both, and both were consistent.

[00:15:07] Speaker 01:
I mean, it looked at the specification and what was taught in the specification, which is a broad disclosure.

[00:15:13] Speaker 01:
It describes the invention as a software facility for automatically determining a current value of a home, and that's it.

[00:15:19] Speaker 02:
It doesn't repeatedly say without appraisers.

[00:15:23] Speaker 02:
I mean, there can't be much doubt that throughout the patent talks about appraisers not being involved.

[00:15:32] Speaker 01:
And the board dealt not with this term, but actually when it construed another term in the claim, which is the claim relevant to the user of the system, it specifically excluded appraiser from that definition so that the term

[00:15:48] Speaker 01:
user knowledgeable about the distinguished home, which is the one that's providing input, specifically excluded an appraiser.

[00:15:54] Speaker 02:
Right, but that's a different part of the patent.

[00:15:59] Speaker 02:
That had to do with who's inputting new information for purposes of amending the automatic valuation.

[00:16:06] Speaker 02:
When we're talking about the automatic valuation, how can the patent repeatedly say

[00:16:12] Speaker 02:
There's no appraiser involved in inputting anything into the relevant database for purposes of calculating this automatic evaluation, and yet the board construed the claim in a way that encompasses appraisers.

[00:16:27] Speaker 01:
What the patent does, which is actually very similar to what Dugan does, is it describes in the beginning of the patent at Column 1, it talks about prior art

[00:16:41] Speaker 01:
ways of appraising properties.

[00:16:42] Speaker 01:
And first it talks about appraiser methods, which were simply non-automatic methods where appraiser was manually sort of appraising properties.

[00:16:51] Speaker 01:
And then it talks about fully automated systems, starting at line 45.

[00:16:57] Speaker 01:
And then it distinguishes and says, you know, basically this is kind of a hybrid.

[00:17:00] Speaker 01:
This is something that is essentially an automated system but allows some minimum input.

[00:17:06] Speaker 01:
And interestingly, Dugan does essentially the same thing if you look at the beginning

[00:17:11] Speaker 01:
Dugan at Columns 1 to 2, it's just talking about appraiser-based approaches, then talks about beginning in the middle of Column 2, going on to Column 3, it talks about completely computer-based systems.

[00:17:32] Speaker 01:
And then goes on when it talks about, summarizes the invention, their system is one, particularly when you look at the bottom of column four going to column five, it says, you know, our system is different.

[00:17:44] Speaker 01:
In fact, it describes the same problems with automated systems and with appraiser-based systems.

[00:17:50] Speaker 01:
It says appraiser-based systems are subjective in nature, wholly computer-implemented systems are efficient time-wise.

[00:17:58] Speaker 01:
but aren't so accurate and so what it does is again the same sort of thing.

[00:18:02] Speaker 01:
It allows a limited amount of input from the user and the user, whether it be an appraiser, a buyer or seller, in fact it contemplates all of those types of users.

[00:18:15] Speaker 01:
At line 67 it talks about a buyer implementing these points.

[00:18:23] Speaker 01:
And then on column 5, over on column 5 at line 8, it talks about a seller.

[00:18:29] Speaker 01:
So there's really no difference here in terms of what these systems are doing.

[00:18:35] Speaker 01:
They're basically allowing a limited amount of input to what is otherwise a fully automated system.

[00:18:42] Speaker 02:
The point we're trying to figure out is where the automated valuation comes from.

[00:18:49] Speaker 02:
Do you see a difference between a calculation and a valuation?

[00:18:54] Speaker 01:
Well, the board's construction was not just simply a calculation.

[00:18:57] Speaker 01:
It's just calculating a value.

[00:19:00] Speaker 01:
So it's basically calculating the value of a home, which is essentially the same thing as evaluating or valuing a home.

[00:19:08] Speaker 01:
So you see no difference between a calculation and a valuation?

[00:19:13] Speaker 01:
I don't see any difference in the board's construction from what is taught in the 674 patent.

[00:19:29] Speaker 01:
Notably, there's no recitation of automated valuation model.

[00:19:34] Speaker 01:
There's no recitation of AVM in the specification.

[00:19:38] Speaker 01:
There's no, the patent owner did not act as a lexicographer.

[00:19:43] Speaker 01:
It didn't attempt to define automatic valuation, to be expressly or implicitly limited to AVM.

[00:19:51] Speaker 01:
So there's simply nothing to suggest that this should be so limited.

[00:19:58] Speaker 01:
And that is, as Judge Prost indicated, it's fully consistent with the ordinary meaning for the term, and there's really just no basis for the board to

[00:20:07] Speaker 01:
construe this more narrowly.

[00:20:13] Speaker 01:
Are there any additional questions?

[00:20:23] Speaker 00:
Thank you.

[00:20:24] Speaker 00:
The board set a calculation of a value.

[00:20:27] Speaker 00:
That's how it interpreted it.

[00:20:28] Speaker 00:
How it applied it was that if there's any part of the valuation calculation that's automatic, then it's an automatic valuation.

[00:20:35] Speaker 00:
There's no question Dugan has much significant human involvement in the valuation process.

[00:20:41] Speaker 00:
Admittedly, Dugan and Kim criticize automatic valuation models.

[00:20:46] Speaker 00:
They both criticize computerized models that do automatic valuations.

[00:20:52] Speaker 00:
And they both criticize them for being too objective.

[00:20:55] Speaker 00:
So both Dugan and Kim say, we're going to make it more subjective.

[00:20:58] Speaker 03:
How does that help your case?

[00:20:59] Speaker 03:
I mean, if they came beforehand and they're distinguishing prior art and saying, we're different, you say the automatic valuation model was in the prior art?

[00:21:08] Speaker 00:
Oh, we didn't invent automatic valuation models.

[00:21:11] Speaker 00:
They're well known in the prior art.

[00:21:12] Speaker 00:
Both experts said it.

[00:21:14] Speaker 00:
It's clear.

[00:21:14] Speaker 00:
Every one of these references acknowledges... What is your invention?

[00:21:19] Speaker 00:
This is what the invention is.

[00:21:20] Speaker 00:
It's giving the user of the home access directly to an automatic valuation model and letting him or her adjust the results.

[00:21:28] Speaker 00:
to then change the results to get a more refined evaluation.

[00:21:33] Speaker 00:
To be clear, Dugan and Kim never have an initial automatic valuation.

[00:21:37] Speaker 03:
So this invention is something exists in the prior art and you're letting a user go in and make adjustments?

[00:21:45] Speaker 00:
Yes, a homeowner.

[00:21:46] Speaker 00:
to adjust it to get quick, inexpensive.

[00:21:49] Speaker 00:
If you know Zillow, Zillow was the first company that ever allowed the homeowner to have access to a computer system on the internet where they could get an automatic calculation of the value of their property and then refine it because it's based on a database that might have errors.

[00:22:04] Speaker 00:
then they could refine it to get a refined valuation.

[00:22:08] Speaker 00:
That is the invention that's disclosed and claimed.

[00:22:11] Speaker 00:
Neither Dugan nor Kim have any initial automatic valuation.

[00:22:15] Speaker 00:
They start out, they create a database and they play around with things, but their whole goal is to get a very subjective evaluation generated.

[00:22:24] Speaker 00:
There's not an objective immediate initial automatic valuation.

[00:22:28] Speaker 00:
And this is just like, Your Honor, it's just like the Abbott diabetes case.

[00:22:32] Speaker 00:
In that case, the court found that the board had gone beyond the broadest reasonable interpretation for the electro-mechanical sensor because the specification disparaged sensors that had cables and wires and the only embodiment had no cables and wires.

[00:22:52] Speaker 00:
The patent disparages valuations that require appraisers and require substantial input or slow.

[00:22:58] Speaker 00:
And then it says the one embodiment it has is purely automatic, the entire valuation.

[00:23:06] Speaker 00:
Thank you.

[00:23:07] Speaker 03:
Thank you.

[00:23:08] Speaker 03:
Thank both counsel and the case is submitted.

[00:23:10] Speaker 03:
And that concludes our proceedings.