[00:00:04] Speaker 06:
The first two cases this morning, 15-1342 and 15-1343, are combined.

[00:00:10] Speaker 06:
We appreciate the party's cooperation in that regard.

[00:00:14] Speaker 06:
And we'll hear from Mr. Countryman first, please.

[00:00:25] Speaker 03:
Thank you, Your Honor.

[00:00:26] Speaker 03:
May it please the Court?

[00:00:27] Speaker 03:
There are several issues in these appeals, so I'd like to focus on just a couple in my time here today.

[00:00:33] Speaker 03:
First, I'd like to deal with two errors with respect to the 003 patent, one of claim construction and the other with respect to the board's analysis of the Asahi reference.

[00:00:42] Speaker 03:
I'd then like to move to the Joinder issue, and I'll plan to rest on the briefs for the other issues unless the court has questions about those.

[00:00:50] Speaker 03:
So starting first with claim construction on the 003 patent, the board's error here was that it ignored an explicit definition in the specification.

[00:00:59] Speaker 03:
All the 003 claims require a stereoscopic

[00:01:02] Speaker 03:
panoramic mosaic image pair, the specification of the 003 patent.

[00:01:08] Speaker 02:
Can I ask you this?

[00:01:09] Speaker 02:
Yes.

[00:01:11] Speaker 02:
Suppose, for purposes of this question, that I agreed with you that the board's claim construction was wrong, not even necessarily because that sentence is a definition, but because it very strongly informs the proper reading of the claim language.

[00:01:28] Speaker 02:
Nevertheless,

[00:01:30] Speaker 02:
Why didn't the board, in fact, make findings under the correct construction that lead to support its ruling?

[00:01:41] Speaker 03:
So there's one issue in particular in that regard, Your Honor, with respect to the Asahi reference.

[00:01:46] Speaker 03:
So Asahi was the only reference that was used to invalidate dependent claim three.

[00:01:52] Speaker 03:
And there, the board made no finding that under our construction,

[00:01:57] Speaker 03:
that the images were recorded from slightly displaced positions in Asahi.

[00:02:02] Speaker 02:
But that's the one piece that I'm not sure that unless you get a definitional characterization out of that sentence, that would otherwise be supported.

[00:02:14] Speaker 05:
Well, that's a different claim construction, right?

[00:02:17] Speaker 05:
Slightly different, right?

[00:02:19] Speaker 03:
I would say it's part of this, Your Honor, because it's part of the definition of stereoscopic images.

[00:02:23] Speaker 03:
So stereoscopic images have to have two characteristics.

[00:02:26] Speaker 03:
They have to be recorded from slightly displaced positions.

[00:02:29] Speaker 05:
And you say that it has to be the distance between the human eyes, right?

[00:02:32] Speaker 05:
That's correct.

[00:02:33] Speaker 05:
Suppose we reject that.

[00:02:34] Speaker 05:
Where are we then on the alternative construction?

[00:02:37] Speaker 03:
So then the issue would be with respect to Asahi, where the board's findings that it provided a perception of depth supported by substantial evidence, and then likewise with respect to the other references.

[00:02:49] Speaker 03:
And then with respect to the Kawakita reference, the issue would be did the board make findings to support the idea that it was provided a sense of depth for the entire scene.

[00:03:02] Speaker 03:
And in that regard, I think the problem was that the board really engaged in a 103-type analysis when the rejections here, or the basis for institution here was 102 anticipation.

[00:03:15] Speaker 03:
So with respect to the Asahi reference,

[00:03:19] Speaker 03:
didn't identify any express disclosure in Asahi, where it showed images that provided the sense of depth to the human.

[00:03:28] Speaker 03:
Asahi or color?

[00:03:30] Speaker 03:
Asahi.

[00:03:31] Speaker 03:
And so what the board did was it looked to Sony's expert testimony that well, adjustments could be made to the images.

[00:03:36] Speaker 03:
And if you adjusted them, then you would supposedly get a perception of depth.

[00:03:42] Speaker 05:
So the issue is whether adjustments are precluded.

[00:03:46] Speaker 03:
That's correct, Your Honor.

[00:03:47] Speaker 05:
And we're talking about adjustments that aren't done by the processor, right?

[00:03:51] Speaker 05:
That's correct, yeah.

[00:03:53] Speaker 03:
And Kawakita is actually a good example of that, because Kawakita in particular talks about making adjustments with humans.

[00:03:59] Speaker 03:
You know, 10 research personnel there were needed to adjust the images in order to give a sense of depth for the entire scene.

[00:04:07] Speaker 05:
But doesn't your construction depend on

[00:04:10] Speaker 05:
the word such that so that you read the display step in the 264 as requiring that this be done by the processor?

[00:04:24] Speaker 03:
So there's a couple things on that.

[00:04:26] Speaker 03:
That's one of our arguments on the 284 patent, Your Honor.

[00:04:28] Speaker 03:
The other argument is that the claim language itself links the mosaics of the scene together in those two elements.

[00:04:34] Speaker 03:
So the processor talks about generating a plurality of mosaics.

[00:04:38] Speaker 03:
And then the display element talks about displaying the mosaics.

[00:04:42] Speaker 03:
And so our point would be that when the claim says displaying the mosaics, it has to be referring to the same mosaics that were generated by the processor.

[00:04:50] Speaker 06:
Well, it says, and displays them so as to provide a sense of depth of the scene.

[00:04:55] Speaker 06:
That's where the depth of the scene comes in, under the display limitation, not under the processing limitation, correct?

[00:05:02] Speaker 03:
I don't agree with that, Your Honor, because the images themselves have to be able to provide that sense of depth.

[00:05:07] Speaker 03:
All the display is doing is it's taking the images that the processor's already generated and it's just displaying them so that they have a sense of depth.

[00:05:16] Speaker 03:
But you still have to have images that are capable of being displayed, capable of providing a sense of depth when they're displayed.

[00:05:24] Speaker 03:
And the problem with this prior art is that it doesn't disclose images that are capable of providing that sense of depth because it's not for showing stereo.

[00:05:33] Speaker 03:
It's for calculating these types of three-dimensional maps.

[00:05:36] Speaker 03:
further adjustments to the images.

[00:05:38] Speaker 02:
But is that really true of Kawakita?

[00:05:40] Speaker 02:
I mean, I thought that the board's description of Kawakita reflecting what it said was that it pointed to the need for adjustment in certain instances, but that in other instances, images created by the Kawakita system would, in fact, meet that kind of common sense definition that they are capable of providing a sense of depth to the scene as a whole.

[00:06:06] Speaker 03:
Yes, so the board did distinguish those two cases in Kawakita with respect to a latter one.

[00:06:11] Speaker 03:
The issue was that it was talking about instances in which the camera was far away from the scene.

[00:06:16] Speaker 03:
And so there wouldn't be any sense of depth to perceive, because the objects would be so far away that when you're looking at the image.

[00:06:24] Speaker 02:
Here's what I guess I'm remembering, and I don't have it in front of me.

[00:06:26] Speaker 02:
I thought, roughly speaking, there were three things Kawakita was describing.

[00:06:31] Speaker 02:
one, a set of images for which nothing would need to be done.

[00:06:35] Speaker 02:
And then it says, and then there are two instances in which you might need to do something.

[00:06:40] Speaker 02:
And I thought the distance one was one of the two things for which you might need to do something, but that the first group, Kawakita,

[00:06:51] Speaker 02:
is described by the board as disclosing images that you don't have to do anything for and still a viewer when viewing would get a sense of depth of the scene as a whole.

[00:07:01] Speaker 03:
And so our view on that particular part of Kawakita is that the viewer wouldn't get a sense of depth because the camera is so far away from the images that there wouldn't be any depth to perceive.

[00:07:12] Speaker 03:
So that was the problem.

[00:07:13] Speaker 03:
What Kawakita was saying was, well, I don't need to adjust in that situation because there's

[00:07:19] Speaker 03:
No need to make the adjustment, because no one can see depth anyway.

[00:07:23] Speaker 03:
There's no depth to proceed.

[00:07:25] Speaker 05:
How do we know that?

[00:07:27] Speaker 05:
I mean, that's your interpretation of the reference, or did you put in a declaration?

[00:07:32] Speaker 03:
That's our interpretation of the reference, Your Honor.

[00:07:35] Speaker 05:
But the reference doesn't say what you just said, right?

[00:07:39] Speaker 03:
I think it does, Your Honor, because it's talking about

[00:07:43] Speaker 03:
these two situations and I think in that it's contrasting the situation in which the camera's relatively close and in that case it talks about needing to make the adjustments as opposed to the other situation in which you don't need to make the adjustments.

[00:07:58] Speaker 03:
We would say it's implicit in the reference that that's talking about the situation in which the camera's far away and Sony's expert had admitted that there are these situations in which you have this degenerative sense of depth because the camera's so far away that you can't

[00:08:13] Speaker 03:
perceive any depth, and Soni's expert in particular talked about that situation just generally about this degenerative sense of depth in his declaration, his second declaration at A 1575, and then he again mentioned it in his deposition testimony at A 1806-07.

[00:08:38] Speaker 03:
uh... that that's our view your honor is that if the court goes with our claim construction on the old three patent and in particular uh... the slightly displaced uh... that that is an instance in which the board did not make any findings under our construction uh... and that at least with respect to claim three uh... the anticipation money would have to be set aside on the flight and even even on the slightly displaced your view

[00:09:03] Speaker 02:
Even if we were to accept that as part of the claim instruction your view then would be that the board could not read or apply slightly displaced to the helicopter motion where You know the hundred foot or something distance between shots is pretty slight compared to the distance To the object being photographed.

[00:09:31] Speaker 03:
That's right your honor

[00:09:32] Speaker 03:
I would characterize it more as an issue of construction in the first instance, as opposed to application of the construction.

[00:09:40] Speaker 03:
Because, of course, if it's an issue of construction, it's a question of law.

[00:09:43] Speaker 03:
And really, the question is, what's the scope of these patent claims?

[00:09:47] Speaker 03:
No one is disputing the content of Asahi.

[00:09:51] Speaker 03:
It's really a question of what does slightly displaced mean in that definition.

[00:09:55] Speaker 03:
And we would say that that's an issue of claim construction.

[00:09:58] Speaker 03:
It's reviewed de novo.

[00:10:00] Speaker 03:
And the patent repeatedly talks about

[00:10:02] Speaker 03:
displacements that are approximately the distance of the human eyes.

[00:10:06] Speaker 03:
Figures 1A and 1B show that.

[00:10:08] Speaker 03:
There's a couple instances in the specification which talk about that.

[00:10:12] Speaker 03:
The board's only basis in the patent for going elsewhere was there's a sentence that talks about exaggerated stereo at column seven.

[00:10:22] Speaker 03:
But even in that instance, you're talking about, okay, maybe something that's a little broader than the human eyes.

[00:10:29] Speaker 03:
So the human eyes are about two and a half inches apart.

[00:10:32] Speaker 03:
In Asahi, we're talking about distances when these images are being recorded from this helicopter that are tens or hundreds of feet apart.

[00:10:40] Speaker 03:
And so you're talking about a three-order of magnitude difference.

[00:10:44] Speaker 03:
In our view, that's not slightly displaced, either under just the ordinary sense of the word slightly, or how it's used in this patent.

[00:10:54] Speaker 03:
And the board's error was that it went to Sony's expert

[00:10:57] Speaker 03:
and to some of his extrinsic evidence to look and come up with a different definition of slightly displaced.

[00:11:03] Speaker 03:
But as a legal matter, the court and the board have to start with the intrinsic evidence.

[00:11:08] Speaker 03:
And here, where the intrinsic evidence is clear and shows that it's just approximately the displacement between the human eyes, it was improper for the board to go to Sony's extrinsic.

[00:11:19] Speaker 02:
Isn't there something in the specification, and maybe I'm misremembering this, where in the description of the

[00:11:27] Speaker 02:
I don't know, the radius of the visual circle, is that the term?

[00:11:32] Speaker 02:
Yes.

[00:11:32] Speaker 02:
Yes.

[00:11:33] Speaker 02:
Where it says, ordinarily, that's about the distance between human eyes.

[00:11:38] Speaker 02:
But then there's a sentence that says, but in fact, it can be larger.

[00:11:42] Speaker 03:
Yes, Your Honor.

[00:11:43] Speaker 03:
That's the sentence of column seven.

[00:11:45] Speaker 03:
But what it says is, if you want exaggerated stereo, you can make it larger.

[00:11:51] Speaker 03:
But in the context of that,

[00:11:53] Speaker 03:
paragraph what it's saying is that okay you can make it a little bit larger than the human eyes but you can't make it there's nothing in the pattern to suggest that you would make it many many many orders of magnitude larger but I think the suggestion is that it is slightly displaced relates to the distance that's right and I think we would say that just the ordinary meaning of slightly means that it's got to be

[00:12:22] Speaker 03:
in the context of this patent, approximately the distance between the human eyes.

[00:12:26] Speaker 02:
Can I switch topic and ask you some things about the jointer?

[00:12:31] Speaker 02:
Sure.

[00:12:32] Speaker 02:
So do I understand correctly that when the petitions that resulted in the 326 and 327 IPRs, I guess the follow-on petitions, were filed,

[00:12:49] Speaker 02:
In your opposition to those, you did not say, these are untimely under 315B, and therefore they should not be instituted.

[00:13:01] Speaker 02:
I couldn't find that.

[00:13:03] Speaker 02:
What you did was oppose Joinder, but you didn't oppose institutions.

[00:13:08] Speaker 03:
That's correct, Your Honor.

[00:13:09] Speaker 03:
We didn't oppose joined or we didn't oppose institution.

[00:13:14] Speaker 02:
I'm trying to figure out how several things fit together here.

[00:13:21] Speaker 02:
If institution is

[00:13:24] Speaker 02:
unopposed, and is unreviewable, is unreversible, if only because it was unopposed, then why could not the board have gotten to exactly where it got to here by simply consolidating the proceedings, consolidating them under 315D, never mind 315C?

[00:13:44] Speaker 02:
I don't understand why there's any need to discuss in this particular case, putting aside

[00:13:52] Speaker 02:
other waiver arguments, which I know exist, the scope of 315C.

[00:13:58] Speaker 02:
Consolidation of an unreviewable institution proceeding gets to the same place, doesn't it?

[00:14:06] Speaker 03:
Well, consolidation isn't part of the exception to the one-year bar, so I think

[00:14:12] Speaker 03:
That's what I would say.

[00:14:13] Speaker 03:
The board would be acting ultra V-rays if it would have tried to consolidate the proceedings and then institute the 326 and 327 petitions.

[00:14:21] Speaker 02:
I assume you only consolidate after you institute, but I'm taking as a premise now that the 326 and 327 were instituted, and we can't reverse that for a variety of reasons, unreviewability, the fact that you didn't oppose institution 326 and 327.

[00:14:36] Speaker 02:
So taking that as a given for purposes of this question, why

[00:14:41] Speaker 02:
isn't what, at a bottom line, the board did here was to consolidate these two proceedings.

[00:14:48] Speaker 02:
I realize it didn't talk in those terms.

[00:14:49] Speaker 02:
It's not argued in those terms.

[00:14:51] Speaker 02:
But I'm puzzled about why that isn't what the net result is here, wholly apart from any implicit or explicit limitation in 315C about Joinder.

[00:15:03] Speaker 03:
Right.

[00:15:03] Speaker 03:
So I mean, I guess two things.

[00:15:04] Speaker 03:
One, as you noted, I mean, the board didn't say it was consolidating.

[00:15:07] Speaker 03:
It said it was using Joinder.

[00:15:09] Speaker 03:
Two, I would say, even in the situation in which if the board were to say it was consolidating, we could have sought mandamus at a minimum.

[00:15:17] Speaker 03:
And so I would say that the court would be able to review that under its mandamus jurisdiction for many of the same reasons that we've explained here.

[00:15:26] Speaker 03:
If you have IPR petitions that are clearly filed after the one year time bar, there's no dispute about that.

[00:15:33] Speaker 03:
It would seem like the conditions for mandamus would be satisfied.

[00:15:36] Speaker 03:
The right to the writ would be clear and indisputable.

[00:15:39] Speaker 03:
There would be no alternative remedies because, of course, there wasn't a direct appeal available.

[00:15:44] Speaker 03:
And it would be appropriate under the circumstances because the board would just be flouting.

[00:15:48] Speaker 03:
a statutory command.

[00:15:53] Speaker 06:
But I think in close, did we not leave open the door that this would ultimately be unreviewable, leaving open the door for possibility of mandamus in certain circumstances?

[00:16:06] Speaker 06:
But we haven't yet decided that mandamus would necessarily yield, right?

[00:16:11] Speaker 03:
That's right, Chief Judge Prost.

[00:16:12] Speaker 03:
And I would say that this is the case.

[00:16:14] Speaker 03:
So the mandamus would be appropriate.

[00:16:15] Speaker 05:
Well, does that suggest that you're giving up on the appealability argument in light of a Chades?

[00:16:21] Speaker 03:
It doesn't, Your Honor.

[00:16:22] Speaker 03:
We believe that a Chades is distinguishable for a couple reasons.

[00:16:26] Speaker 03:
The main one being that the interpretation of the Joinder statute is generally applicable.

[00:16:32] Speaker 03:
You know, we're not making something that's applicable to just a particular petition.

[00:16:35] Speaker 05:
Yeah, but this is just like closed-door cheaties in the sense that if the thing had been timely filed, there wouldn't be any problem.

[00:16:42] Speaker 05:
And those cases suggest that at a minimum, the appealability bar applies where you could have if you'd filed earlier, you would have been properly there.

[00:16:52] Speaker 05:
So this is just like that, isn't it?

[00:16:54] Speaker 03:
I disagree, Your Honor, because the challenge here is not to the institution or to the one-year bar.

[00:16:59] Speaker 03:
It's to the joiner statute.

[00:17:01] Speaker 03:
And here, we're making a generally applicable point about the joiner statute, that you're not allowed to join claims, that the joiner statute just permits joiner a party.

[00:17:10] Speaker 06:
So how is that different than the FKD's one-year bar statute?

[00:17:15] Speaker 06:
What makes that different?

[00:17:17] Speaker 03:
Because it goes to the board's power to act in the manner in which it did in this case.

[00:17:22] Speaker 03:
So the board could not have put in 326 and 327 petitions if it hadn't joined them to this proceeding.

[00:17:31] Speaker 03:
the Joinder statute was a necessary decision underlying what the board did to get to its final written decision.

[00:17:37] Speaker 05:
Well, what the Joinder statute does is it says you don't have to worry about timeliness if there's a Joinder.

[00:17:43] Speaker 05:
And we said timeliness is an institution decision which we're not going to review.

[00:17:49] Speaker 03:
But what we would say that this court should do, Your Honor, is just decide that the board didn't have the power to join and then remand for the board to look at institution

[00:17:59] Speaker 03:
in light of, again, in light of the fact that it doesn't have the power to join these proceedings.

[00:18:04] Speaker 03:
And then it would ultimately be the board.

[00:18:05] Speaker 06:
And your argument about jointer is based on the fact that this was the same person and not a different person?

[00:18:12] Speaker 03:
Two things, Your Honor.

[00:18:13] Speaker 03:
Yes, one is that.

[00:18:14] Speaker 03:
And then the other is that the statute doesn't specifically provide for the jointer claims.

[00:18:18] Speaker 03:
It just provides for jointer or party.

[00:18:20] Speaker 03:
And so there's no statutory authorization for what the board did.

[00:18:24] Speaker 03:
with respect to Joinder here.

[00:18:25] Speaker 02:
If it were a different party, could the different party be joined along with different claims?

[00:18:31] Speaker 03:
No, Your Honor.

[00:18:32] Speaker 03:
Because Section 315C only speaks to Joinder of claims.

[00:18:36] Speaker 03:
And so in that respect, it's language parallel federal rules of Civil Procedure 19, which talks about Joinder of parties.

[00:18:42] Speaker 03:
There's a different federal rule of Civil Procedure that talks about Joinder of claims.

[00:18:46] Speaker 03:
There's no statutory authorization for the board to join claims.

[00:18:51] Speaker 02:
I think I know the answer to this.

[00:18:53] Speaker 02:
This is one of those fairly infrequent cases in which what we'll call the board in one or another proceeding arrived at a policy position through what might be considered panel stacking.

[00:19:11] Speaker 02:
You haven't challenged that, right, under either APA or statutory or due process grounds of the sort that were talked about a bit in the dissent in Alipak.

[00:19:22] Speaker 03:
Right, we've not in this case, mainly because it wasn't presented in our case below.

[00:19:27] Speaker 03:
But I would say when you're thinking about what kind of deference, if any, to give to the PTO, I think it speaks to the fact that the court needs to look at the statute de novo and not give any deference, Chevron or otherwise, to the PTO, because the PTO is bouncing from position to position.

[00:19:42] Speaker 03:
There's not really a reasoned agency approach to this.

[00:19:46] Speaker 03:
I see I'm running out of time.

[00:19:47] Speaker 06:
No, that's fine.

[00:19:48] Speaker 06:
Save that, and we'll restrict to additional minutes for rebuttal.

[00:19:51] Speaker 03:
Thank you.

[00:19:56] Speaker 00:
Okay, Mr. Hanley.

[00:19:58] Speaker 00:
Good morning, Your Honors.

[00:20:00] Speaker 00:
May it please the Court.

[00:20:02] Speaker 00:
As it turns out, the priorities that I set for the limited time I have turn out to be about the same as the priorities that Mr. Countryman set out, which is basically to address

[00:20:15] Speaker 00:
a couple of claim construction issues.

[00:20:18] Speaker 00:
The first one, of course, being the board's final construction of stereoscopic image pair, and also to address the construction of slightly displaced positions in the board's preliminary construction, which I should point out, I think as the board has noted,

[00:20:36] Speaker 00:
The board made findings of unpackability under both the broader construction in the final decision and also the narrower construction in the preliminary decision.

[00:20:48] Speaker 00:
And so even if the court were to determine that the board erred in construing stereoscopic image pair in the final construction, the board's alternative findings are certainly supported by substantial evidence and the board should be affirmed nevertheless.

[00:21:04] Speaker 00:
The third priority I have, of course, is to address Joinder.

[00:21:09] Speaker 00:
So going first to the issue of stereoscopic image peer, what happened was the parties basically agreed on a construction.

[00:21:18] Speaker 00:
The board made a determination in the institution decision that that construction was consistent with the ordinary meaning.

[00:21:26] Speaker 00:
The board looked at a couple of dictionary definitions.

[00:21:30] Speaker 00:
When time came for the evidence to be presented and for the oral hearing to occur, the board was confronted with a different ordinary meaning that, in fact, was advocated by Yism.

[00:21:41] Speaker 00:
Yism argued the broader construction of stereoscopic image.

[00:21:46] Speaker 00:
And the experts for each side supported that.

[00:21:50] Speaker 00:
So the board confronted with that and said, OK, that is the proper construction.

[00:21:57] Speaker 02:
I may not be remembering the details.

[00:21:59] Speaker 02:
I thought that the gist of the disagreement here is that the board adopted a construction that would allow images to be stereoscopic if they would not, in fact, be seen as having depth perception by human eyes, by a human being with two eyes in the normal place, but might be viewed that way, whatever viewing means in this sentence, by a computer, and that the gist of the argument

[00:22:29] Speaker 02:
on the other side, is that both the sentence that they want to call a definition, but in any event, the whole spec as a whole tells you, in the context of this patent, that's ridiculous.

[00:22:41] Speaker 02:
This is about what human beings will see.

[00:22:44] Speaker 00:
That is their position.

[00:22:46] Speaker 02:
Why is that not right?

[00:22:50] Speaker 00:
Well, certainly the backdrop is that

[00:22:53] Speaker 00:
Start from the first premises.

[00:22:55] Speaker 00:
The interpretation of a term is from the viewpoint of a person of ordinary skill in the art.

[00:23:02] Speaker 02:
So the person of ordinary skill in this art... In the context provided by the whole document, and the whole document is about what human eyes will see.

[00:23:10] Speaker 00:
Well, let's...

[00:23:14] Speaker 00:
Certainly the embodiment that's discussed, and the only embodiment that's discussed, is an embodiment in which two images are going to be generated that are for human viewing.

[00:23:24] Speaker 00:
No question about that.

[00:23:26] Speaker 00:
The board did note that at the tail end of the specification, where typically patent owners are talking about an enlarged perspective.

[00:23:36] Speaker 02:
That this would be useful for computer games.

[00:23:38] Speaker 00:
Or in robots.

[00:23:40] Speaker 00:
Robots.

[00:23:41] Speaker 00:
And robotics, the only example the board had of robotics was the party's presentations related to Ishiguro, which has to do with robot navigation.

[00:23:52] Speaker 00:
And so in that context, the primary function is for the robot to measure distances.

[00:24:00] Speaker 00:
And the board, I think, properly viewed that as an example of a broader usage of the term that goes beyond what's appropriate for human viewing.

[00:24:11] Speaker 05:
But this is only under this alternative construction, right?

[00:24:15] Speaker 05:
Well, this is under, right, the board... In other words, the board did address the claims under the assumption that it requires human depth perception and concluded that that was satisfied by one, under some circumstances you would get it anyway,

[00:24:40] Speaker 05:
in the prior art, and two, because in the prior art, you get it as a result of human manipulation, and that that is permissible under the claims.

[00:24:54] Speaker 05:
Correct.

[00:24:55] Speaker 00:
And we spent most of our brief addressing that very issue and pointing that out.

[00:25:00] Speaker 00:
If I could just make one more point on the board's final construction in support of it.

[00:25:05] Speaker 00:
Basically, the board looked at the claim, claim one, which is the only one about which there was argument, and identified as a system claim that has two elements, and it has a strip generator and a mosaic image generator.

[00:25:20] Speaker 00:
And within the mosaic image generator element, it basically says you get two mosaics, and those mosaics comprise the stereoscopic image pair

[00:25:30] Speaker 00:
providing a stereoscopic image of the scene as recorded over the path.

[00:25:34] Speaker 00:
So the claim itself speaks to a broader construction of stereoscopic image pair.

[00:25:41] Speaker 00:
Particularly, stereoscopic image pair is the outcome of the functioning of these two elements that comprise the system.

[00:25:51] Speaker 00:
So the claim is certainly consistent with the broader interpretation.

[00:25:56] Speaker 00:
It's only if one goes to the specification and one makes a determination that there's a special definition that departs from the agreed upon ordinary meaning that you get to this notion that you have to have images for human viewing and so on.

[00:26:11] Speaker 00:
So, if I could now go to the second part of the claim construction, which is this slightly displaced.

[00:26:19] Speaker 00:
Slightly displaced positions is part of the board's preliminary construction.

[00:26:26] Speaker 00:
Two things as a threshold matter.

[00:26:29] Speaker 00:
First, as I said, it's the meaning that that term would have to a person skilled in the art, knowing what they know and what they bring with them into the analysis and their reading of the patent.

[00:26:41] Speaker 00:
And secondly, it's the broadest reasonable interpretation of that.

[00:26:46] Speaker 00:
So here we have the board looking at the patent specification and noting that the patent itself says that

[00:26:56] Speaker 00:
the diameter of the viewing circle, which is basically the displacement of the two viewing positions, can be enlarged for exaggerated stereo.

[00:27:07] Speaker 00:
It doesn't place any limitation on that.

[00:27:09] Speaker 00:
It doesn't say, as Mr. Contraman suggests, it can only be enlarged a little bit.

[00:27:15] Speaker 02:
But it also doesn't say it can be enlarged for purposes of unexaggerated stereoscopic viewing, does it?

[00:27:23] Speaker 00:
I'm not sure what unexaggerated

[00:27:26] Speaker 02:
Well, what do you think exaggerated means?

[00:27:28] Speaker 00:
Well, the board heard evidence about that.

[00:27:32] Speaker 00:
And this goes to my point that this is the viewpoint of someone skilled in the art.

[00:27:36] Speaker 00:
The board received evidence about what someone skilled in the art knows about how to create stereoscopic images that are viewable and will provide a sense of depth to the human.

[00:27:48] Speaker 00:
In particular, the board learned about the concept of disparity

[00:27:53] Speaker 00:
which basically is the relationship between the distance between the photographing positions and the distance of objects.

[00:28:01] Speaker 00:
And that disparity, therefore, a proper disparity can exist for humans to view a stereoscopic image pair with photographing positions that are widely displaced because that displacement is appropriate for the distance of the objects being photographed.

[00:28:19] Speaker 05:
Which doesn't have anything to do with the exaggeration?

[00:28:22] Speaker 00:
Well, exaggerated, what it has to do with is this.

[00:28:27] Speaker 00:
The patent uses the term normal stereo.

[00:28:30] Speaker 00:
Normal stereo is the stereo that mimics the experience that a viewer would have in looking at a scene natively.

[00:28:40] Speaker 05:
Well, what I'm trying to understand is whether the exaggeration point is the same as the distance from the object point that you just made, or it's a different point in the specification.

[00:28:51] Speaker 00:
Well, what I'm trying to do is explain what exaggerated means.

[00:28:55] Speaker 05:
So in the context of... Just tell me first, are we talking about a single point in the spec or two different points?

[00:29:02] Speaker 00:
Well, we're talking about a single point in the spec where that concept is mentioned.

[00:29:09] Speaker 05:
But it's a single concept.

[00:29:10] Speaker 05:
And it's that the distance is related to the displacement.

[00:29:19] Speaker 00:
Yes.

[00:29:19] Speaker 00:
It refers to the ability to spread the displacement between the photographing positions for exaggerated stereo.

[00:29:28] Speaker 00:
And just to round out what that means, Mr. Barton, the photographer who testified, as an exemplar of that, he showed or testified about an image of two distant mountain peaks captured using cameras

[00:29:43] Speaker 00:
100 feet apart, much wider than the distance between human eyes.

[00:29:48] Speaker 00:
And if one looks at that using red cyan glasses, one will see a separation between the two peaks.

[00:29:56] Speaker 00:
And the separation that one sees in looking at those images is not what one would see in looking at the scene natively.

[00:30:04] Speaker 00:
One sees a separation that one would not see looking at the scene natively because one's eyes aren't 100 feet apart.

[00:30:11] Speaker 00:
So it creates a stereoscopic image that does not mimic the direct experience a viewer would have in looking at the scene.

[00:30:22] Speaker 00:
That's what exaggerated stereo means, and that's what Dr. Garrow testified about.

[00:30:31] Speaker 00:
So that reference to exaggerated stereo is consistent with the evidence the board received about what people skilled in the art know about

[00:30:40] Speaker 00:
technology creating these images.

[00:30:44] Speaker 00:
About Asahi.

[00:30:46] Speaker 00:
Asahi does, in fact, teach, disclose stereoscopic images that when viewed would provide a perception of depth.

[00:30:56] Speaker 00:
Asahi says that under certain flight conditions, you generate mosaics.

[00:31:04] Speaker 00:
And the mosaics, stereoscopic viewing is possible using the mosaics.

[00:31:09] Speaker 00:
And that's all that's required in the 003-PAT.

[00:31:12] Speaker 00:
I think, as Mr. Countryman said, it's about the capability of the captured images, if properly displayed, to produce this perception of depth.

[00:31:23] Speaker 00:
Assai says stereoscopic viewing is possible.

[00:31:27] Speaker 00:
Dr. Darrell testified that one skilled in the art would understand viewing, to refer to human viewing.

[00:31:34] Speaker 00:
And therefore, Assai does disclose images that provide a perception of depth.

[00:31:39] Speaker 00:
If the board doesn't have any questions about that, I'd like to go on to the joiner.

[00:31:46] Speaker 05:
You're at a higher level now.

[00:31:49] Speaker 05:
Pardon, Ron?

[00:31:50] Speaker 05:
You said the board.

[00:31:51] Speaker 00:
Oh, the board, the court.

[00:31:56] Speaker 00:
Thank you, Robert, for correcting me.

[00:31:58] Speaker 00:
About the joiner question, I agree with you, Judge Taranto, that there was no below at the board level.

[00:32:09] Speaker 00:
there was no challenge to the institution decision with respect to the second petitions.

[00:32:15] Speaker 00:
There was a challenge to joining them with the first petitions on the basis that the director should not exercise his discretion because they would prolong the proceeding and so on.

[00:32:27] Speaker 00:
There were these factors relating to the appropriateness.

[00:32:30] Speaker 02:
Well, can I just ask you, do you see any difference between what

[00:32:38] Speaker 02:
The board ended up doing here.

[00:32:41] Speaker 02:
And what the board would have done had it simply said, we interpret 315B, the timing rule, a particular way.

[00:32:52] Speaker 02:
We now consolidate.

[00:32:58] Speaker 00:
I don't see any difference.

[00:32:59] Speaker 00:
I think the viewpoint that Your Honor has expressed about what happened

[00:33:08] Speaker 00:
is an appropriate analysis.

[00:33:16] Speaker 02:
I hope it's evident that one reason I'm asking is that it seems to me there's quite a lot of force to their joiner argument.

[00:33:25] Speaker 02:
Every lawyer who's passed the sixth week of first term civil procedure knows the difference between joining parties and joining claims.

[00:33:33] Speaker 02:
And this says joining parties.

[00:33:35] Speaker 00:
Yeah, but can I address that?

[00:33:38] Speaker 00:
Please.

[00:33:38] Speaker 00:
Yeah, OK.

[00:33:39] Speaker 00:
So what I think is missing there is the following.

[00:33:43] Speaker 00:
The Joinder Statute talks about Joinder of party, uses those language, and says, any person who appropriately files a petition under 311.

[00:33:53] Speaker 00:
OK, so under 3 itself.

[00:33:57] Speaker 00:
Mr. Countryman is suggesting that a second party, let's say Apple, as a for instance,

[00:34:05] Speaker 00:
piggybacked on the Sony's initial petitions, and they attacked additional claims.

[00:34:14] Speaker 00:
Mr. Countryman's point of view is that, albeit they are a different party, they could not do that, because the Joinder statute doesn't allow Joinder claims.

[00:34:23] Speaker 00:
However, if you look at the requirement of the Joinder statute, and specifically that it requires that the petition satisfy the requirements of 311,

[00:34:35] Speaker 00:
311 is a preliminary examination of the merits of the petition.

[00:34:39] Speaker 00:
It requires a finding that there is a reasonable likelihood that at least one claim will be established to be unpatently.

[00:34:48] Speaker 00:
So if you have an ongoing proceeding where the board is instituted and therefore has already made that decision with regard to the subject matter of the petition that precipitated it, then what is the utility

[00:35:04] Speaker 00:
of the board looking at joining an additional party and examining whether or not they had met the threshold of showing at least one claim is unpatible, unless what's contemplated is that additional claims, therefore additional issues, can be added.

[00:35:21] Speaker 02:
Well, maybe I'm going to try to get at this a different way.

[00:35:27] Speaker 02:
If I'm right in my current working hypothesis that

[00:35:32] Speaker 02:
The consolidation provision allows the board to put together two proceedings that it thinks are sufficiently closely related that they should be litigated together.

[00:35:45] Speaker 02:
What is the role of 315C?

[00:35:49] Speaker 02:
What does it add to that authority?

[00:35:54] Speaker 00:
Well, one thing clearly it adds is that a party who is within 315C

[00:36:02] Speaker 00:
can be one for whom the time bar has already expired.

[00:36:08] Speaker 02:
How would that fit under the 315C says something like the only parties that can join are ones that properly filed petitions?

[00:36:19] Speaker 00:
Correct.

[00:36:20] Speaker 02:
Why doesn't that preclude the out of time petitioner?

[00:36:27] Speaker 00:
Because 315B says that

[00:36:29] Speaker 00:
The party's joining under 315C.

[00:36:34] Speaker 02:
I see the properly filed is only properly under the other provisions, not under 315B.

[00:36:40] Speaker 00:
It's properly filed under, it says under 311.

[00:36:43] Speaker 00:
Okay.

[00:36:46] Speaker 00:
Yeah.

[00:36:46] Speaker 00:
Which is my point as to why joined with issues.

[00:36:50] Speaker 02:
So the out of time petitioner can be joined even though you wouldn't have a consolidatable

[00:36:58] Speaker 02:
pair of timely proceedings, timely brought proceedings?

[00:37:03] Speaker 00:
Correct.

[00:37:04] Speaker 00:
Out of time, the district can be joined, well, it's another way of saying it can be joined, notwithstanding the time bar, which is what's clearly.

[00:37:12] Speaker 00:
If I can say one more thing about, I'm sorry, I think, what's going on with that.

[00:37:17] Speaker 00:
No, it's a missed one.

[00:37:18] Speaker 00:
It seems to me, Akades is dispositive, that the challenge here really is to the time bar,

[00:37:27] Speaker 00:
They're saying these petitions were time barred.

[00:37:29] Speaker 00:
Cades addresses the time bar, says that the fact that the board made a determination that the time bar didn't apply, that's not reviewable because that's part of the institution decision.

[00:37:43] Speaker 00:
And moreover, just looking at the other statute, 319, 319 allows appeals

[00:37:51] Speaker 00:
of final written decisions, which in 318A are final written decisions that relate to patentability.

[00:37:56] Speaker 00:
So it seems to me this is not a patentability challenge when they're challenging joined or institution.

[00:38:03] Speaker 06:
Thank you.

[00:38:11] Speaker 01:
Thank you, Your Honor, and may it please the Court.

[00:38:14] Speaker 01:
I agree with my friend from Sony that this Court does not have jurisdiction to review the

[00:38:19] Speaker 01:
the agency's decision to institute the later filed IPRs.

[00:38:24] Speaker 01:
Yesum tries to get around Katie's case by saying that what is really being reviewed here is the final written decision as to claims that were not in the proceeding until the second petitions were instituted and the proceedings were joined.

[00:38:38] Speaker 06:
And I'm just very basic.

[00:38:40] Speaker 06:
Is the office's position that may join a party two questions?

[00:38:45] Speaker 06:
That may join a party can be the same party that's already instituted.

[00:38:48] Speaker 06:
And is the office's position that may join a party necessarily or at least allows that additional claims will be asserted by that party?

[00:38:58] Speaker 01:
Yes, Your Honor, to both questions.

[00:38:59] Speaker 01:
On the first question, it says may join as a party any person who properly files a petition.

[00:39:04] Speaker 01:
And well, join as a party would suggest ordinarily

[00:39:08] Speaker 01:
It's party joiner that's allowed, but it does, the statute goes on and tells the director to evaluate the propriety of the petition that's filed.

[00:39:16] Speaker 01:
Look at it and decide whether or not it's something that could be instituted, and if so, the director can join the proceedings.

[00:39:23] Speaker 02:
And so it's... Can I just... I'm trying to... I think I may be beginning to understand this.

[00:39:29] Speaker 02:
It seems to me

[00:39:30] Speaker 02:
And tell me why this is wrong.

[00:39:32] Speaker 02:
That 315C is about joinder of parties to instituted review number one without instituting review number two.

[00:39:42] Speaker 02:
Because if you instituted review number two, there'd be no role for the joinder provision.

[00:39:47] Speaker 02:
Everything could be consolidated.

[00:39:49] Speaker 02:
So the only function of 315C is to allow a party whose second, whose

[00:39:58] Speaker 02:
request to institute proceeding number two, could be different party, could be same party, not my point here, does not in fact have that second one instituted.

[00:40:09] Speaker 02:
Otherwise it would all just be consolidating two perfectly properly instituted proceedings.

[00:40:13] Speaker 01:
I think that 315 is a little bit circular in that B says only if you join under 315C and 315C says you can, it

[00:40:25] Speaker 02:
It doesn't apply if... C does not require the second proceeding to be instituted, only that it be one that the director determines meet the non-timing requirements for institution.

[00:40:41] Speaker 01:
Right, but it says that the purpose of 315C is to let someone who is otherwise time-barred under 315B get into the proceeding.

[00:40:49] Speaker 01:
And the director looks at that petition and decides whether or not it's institutable,

[00:40:53] Speaker 02:
And although your honor is correct... So the jointer here maybe even should not have been coupled with the institution of the 326 and 327 proceedings.

[00:41:05] Speaker 02:
What role is played by the institution of the 326 and 327 here as opposed to simply joining Sony

[00:41:13] Speaker 02:
to the 218 and 219.

[00:41:19] Speaker 01:
The institution of the second petition allowed Sony to bring forward different arguments about different claims.

[00:41:28] Speaker 01:
That would otherwise have been time barred.

[00:41:31] Speaker 05:
It strikes me as odd that the statute would have done that.

[00:41:35] Speaker 05:
I can understand joining a party

[00:41:39] Speaker 05:
who delayed in instituting, who's challenging the same claims.

[00:41:44] Speaker 05:
But why would Congress have wanted to frame this in a way that somebody could bring in new claims that would otherwise have been time barred?

[00:41:54] Speaker 01:
The reason for that is that the patent owner is in an IPR proceeding.

[00:41:58] Speaker 01:
And it knows its patent is in jeopardy.

[00:42:02] Speaker 01:
And it allows either the same party, if new claims are asserted against it, or other parties to get involved in the proceeding.

[00:42:08] Speaker 01:
and bring their claims against the same patent into the single proceeding that moves forward.

[00:42:14] Speaker 01:
So the patent owner has all of the challenges that all parties have against its patent resolved in the single proceeding.

[00:42:21] Speaker 01:
And the reason that we think that Sony can join into its own proceeding is because the statute just says any person who properly files a petition, and the way we read it, that allows other parties, and the way Senator Kyle in the legislative history says,

[00:42:36] Speaker 01:
It allows other parties to bring in new issues.

[00:42:39] Speaker 01:
And if other parties can bring in new issues, the statute is ambiguous as to whether or not the same party can.

[00:42:45] Speaker 01:
And we've interpreted it in a way that allows... Who's the we that's been doing this interpreting?

[00:42:51] Speaker 01:
It's been interpretation through the board by the agency.

[00:42:55] Speaker 02:
Where does the board give an interpretive authority?

[00:43:01] Speaker 02:
And by the board here, I mean the eight million possible three-judge panels, plus how many other five-judge panels that result after the director or her delegate decides she doesn't like the result of the original panel.

[00:43:17] Speaker 01:
Right.

[00:43:17] Speaker 01:
So the director has delegated the authority to decide institution decisions to the board.

[00:43:22] Speaker 01:
And to get to Your Honor's earlier question about Alipat, it's especially appropriate in this situation that the director be able

[00:43:31] Speaker 01:
to make sure that her policy judgments are enforced by the board.

[00:43:36] Speaker 01:
And so it's particularly appropriate in a situation like this where the director has the ultimate authority to expand it.

[00:43:42] Speaker 06:
Well, what happens if another board tomorrow or yesterday decides in a different way?

[00:43:46] Speaker 01:
If another panel were to decide it.

[00:43:48] Speaker 06:
They're not bound by the interpretation given by the particular panel that decided this case, right?

[00:43:54] Speaker 01:
No.

[00:43:54] Speaker 01:
None of these decisions has been made presidential at this point.

[00:43:57] Speaker 02:
Do you know of it?

[00:43:59] Speaker 02:
Because I don't at this point.

[00:44:01] Speaker 02:
know of any other individual adjudicatory multi-member panel board decisions outside the PTO context where non-precedential decisions have been given Chevron or other kind of deference?

[00:44:16] Speaker 01:
I'm not aware of any cases where non-precedential decisions have been given Chevron deference.

[00:44:21] Speaker 05:
There are cases where non-precedential decisions have been given Chevron deference, but I think Judge Torano's point is

[00:44:29] Speaker 05:
None of those cases involve multiple entities that could make the decisions.

[00:44:36] Speaker 02:
It seems a little bit peculiar given the sheer number of permutations of free judge panel opinions that Congress meant to delegate to each one of those the ability to interpret its statutes and particularly where it hasn't done so through a process that makes it binding on the agency.

[00:45:00] Speaker 01:
I think that Mead suggests that whether or not a particular decision is made presidential does not matter in the Chevron inquiry, as long as the agency does, in certain circumstances, consider its decisions binding.

[00:45:15] Speaker 01:
And there are presidential decisions.

[00:45:17] Speaker 01:
The board is.

[00:45:19] Speaker 06:
But here, there's no dispute.

[00:45:20] Speaker 06:
These aren't binding on anyone, right?

[00:45:21] Speaker 01:
That's correct.

[00:45:23] Speaker 01:
This decision is not.

[00:45:24] Speaker 06:
OK, so what kind of deference are you advocating that we give to these individual, non-precedential board decisions?

[00:45:30] Speaker 01:
Well, first of all, I'd say that our position is that this court lacks jurisdiction to review the decision at all.

[00:45:36] Speaker 01:
So there's no question of the level of deference it should give.

[00:45:39] Speaker 01:
But I think the agency is showing that it is, in fact, using its best efforts to speak with one voice and to have aberrant decisions.

[00:45:52] Speaker 02:
But Congress sort of said how the director is supposed to speak with one voice, but through a

[00:45:59] Speaker 02:
delegation of initial decision making authority to any number of possible three member panels of APJs, none of whose decisions is binding on anybody else without notice and comment rule making or any other formal process.

[00:46:20] Speaker 02:
That's a little odd.

[00:46:22] Speaker 01:
It may be a little odd, Your Honor, and I would point to Microsoft E-ProxyCon, which says that even if it is, in fact, a little odd, it is an appropriate thing for the agency to do, is for case-by-case adjudication reach the result it wants to reach.

[00:46:36] Speaker 06:
Yeah, but we're talking here about the level of deference of the office, the position of the government with respect to what deference is owed to this particular board decision, assuming we can review, assuming it's reviewable.

[00:46:50] Speaker 06:
is owed to this particular panel's decision with respect to what Joinder means?

[00:46:55] Speaker 01:
Well, I understand Yism's argument as conceding that Chevron deference would apply unless, in its view, the agency has been acting very inconsistently.

[00:47:05] Speaker 01:
And my response to that argument is that we agree that Chevron deference should apply, and we think that the agency is doing its very best to speak with one voice.

[00:47:13] Speaker 01:
And there's really only one outlier decision, the Skyhawk decision, and there

[00:47:18] Speaker 01:
over 20 decisions in Malving Joinder.

[00:47:20] Speaker 02:
And anytime there has been a seeming other outlier, you've engaged the power to reconfigure the panel so as to get the result you want.

[00:47:31] Speaker 01:
Yes, Your Honor.

[00:47:33] Speaker 02:
And you don't see a problem with that.

[00:47:35] Speaker 01:
Your Honor, the director is trying to ensure that her policy position is being enforced by the... The director is not given adjudicatory authority, right, under Section 6 of

[00:47:48] Speaker 02:
of the statute that gives it to the board.

[00:47:51] Speaker 02:
Right.

[00:47:52] Speaker 01:
To clarify, the director is a member of the board, but your honor is correct.

[00:47:56] Speaker 02:
But after the panel is chosen, I'm not sure I see the authority there to engage in case-specific re-adjudication from the director after the panel has been selected.

[00:48:12] Speaker 01:
That's correct.

[00:48:13] Speaker 02:
Once a panel has been set, it has the adjudicatory authority, and the director has to be... Until, in your view, it's reset by adding a few members who will come out the other way.

[00:48:22] Speaker 02:
That's correct, Erin.

[00:48:23] Speaker 06:
We believe that's what all that holds.

[00:48:25] Speaker 06:
Who determines whether a decision is... I mean, if a decision were designated as presidential, then all other board panels would be bombed by it, right?

[00:48:33] Speaker 06:
Yes, Your Honor.

[00:48:34] Speaker 06:
Who makes that determination?

[00:48:36] Speaker 01:
It is a somewhat complicated process.

[00:48:39] Speaker 01:
where the board holds a vote and someone has to bring it to the board's attention.

[00:48:45] Speaker 01:
It can be the board itself or someone from the outside requests that a decision be made presidential.

[00:48:50] Speaker 05:
Why wouldn't the PTL make some of these decisions presidential, which seem to rest on broadly applicable issues such as Joinder?

[00:49:01] Speaker 05:
Why are we faced with non-precedential decisions on that kind of issue?

[00:49:07] Speaker 01:
I think that the agency is considering making more decisions presidential.

[00:49:13] Speaker 01:
It's a slow process.

[00:49:14] Speaker 06:
Well, does the director have authority to do that?

[00:49:16] Speaker 06:
Does the chief administrative law judge?

[00:49:18] Speaker 06:
You mentioned a vote to 250 more judges get to vote on what's presidential.

[00:49:23] Speaker 01:
Yes, Your Honor.

[00:49:24] Speaker 01:
And that's a complicated process.

[00:49:26] Speaker 01:
And the majority of the judges have to vote to make the decision presidential.

[00:49:32] Speaker 01:
Then the chief administrative patent judge decides whether or not to forward

[00:49:36] Speaker 01:
the decision to the director, and the director has the ultimate authority to decide whether a decision is made precedential.

[00:49:42] Speaker 01:
And I think that- It sounds somewhat cumbersome.

[00:49:46] Speaker 01:
It does seem somewhat cumbersome.

[00:49:48] Speaker 06:
But in the absence of a precedential opinion, then if a board comes up anywhere they go, you're saying one board decides to join to one way, another board panel decides it another way, and we're supposed to give Chevron deference to every one of them?

[00:50:03] Speaker 06:
if that's the way it works out.

[00:50:05] Speaker 06:
I mean, either Chevron deference applies in this circumstance or it doesn't.

[00:50:09] Speaker 06:
So if there are two different opinions, two coming out different ways on Joinder, we're supposed to give Chevron deference to each of those?

[00:50:19] Speaker 01:
Your Honor, it's a... The answer is no.

[00:50:22] Speaker 01:
It's particularly complicated in this case because the one, the agency's position is that the statute is ambiguous.

[00:50:31] Speaker 01:
Judges who come out the other way say the statute is unambiguous and said Chevron wouldn't apply.

[00:50:35] Speaker 01:
But I don't mean to challenge Your Honor's question.

[00:50:39] Speaker 06:
We've got a lot more panels going on.

[00:50:41] Speaker 06:
We may get one that says it's ambiguous and we go the other way too.

[00:50:45] Speaker 01:
That's possible, Your Honor.

[00:50:47] Speaker 01:
And what the agency would do in that case would be to exercise its authority to try to bring that panel's decision in line with the agency's view.

[00:50:58] Speaker 02:
Can I ask you one other question?

[00:50:59] Speaker 02:
I think I know the answer.

[00:51:00] Speaker 02:
This is about 315B.

[00:51:03] Speaker 02:
Has the director or any board panel said, this has to do with claim filing versus patent filing.

[00:51:10] Speaker 02:
So if an IPR challenges a particular claim, whether the one year period can be measured from when that claim was alleged to be infringed in court, even if infringement of the patent was more than a year ago?

[00:51:25] Speaker 01:
Yes, Your Honor, the 315B goes to the entire patent.

[00:51:30] Speaker 01:
And so if any claim in the patent has been asserted against the partner.

[00:51:33] Speaker 02:
And neither the director nor panels one way or the other have said, well, actually, it makes more sense to construe that timing rule to run from the time that the challenged claims were asserted in litigation.

[00:51:48] Speaker 01:
No, Your Honor.

[00:51:49] Speaker 01:
The board has consistently held that it is required, that it affects the entire patent rather than claim by claim.

[00:51:55] Speaker 02:
And so under that view, the fact that in the Delaware litigation filed by Yissam, there was no identification of claims is completely irrelevant to whether the 315 bar applies.

[00:52:10] Speaker 02:
In fact, the 315B bar did, in fact, bar the 326,

[00:52:18] Speaker 02:
Yeah, 326 and 327.

[00:52:19] Speaker 02:
326 and 327.

[00:52:20] Speaker 02:
They were simply out of time.

[00:52:22] Speaker 01:
Well, under the first sentence, Your Honor is correct, that the petitions were barred, but the second sentence takes that away when a joint decision is made.

[00:52:31] Speaker 01:
So it says the bar no longer applies when a joint decision is made.

[00:52:38] Speaker 01:
If there are no further questions, I'll pass my time.

[00:52:40] Speaker 01:
Thank you.

[00:52:42] Speaker 06:
All right.

[00:52:42] Speaker 06:
We went over for the other side, so let's give you six minutes if you need it.

[00:52:49] Speaker 03:
Thank you, Your Honor.

[00:52:51] Speaker 03:
Just a few points.

[00:52:52] Speaker 03:
First, on claim construction.

[00:52:54] Speaker 03:
So to start back with a slightly displaced.

[00:52:58] Speaker 03:
Everything in the patent is consistent with slightly displaced being approximately the distance between the human eyes.

[00:53:04] Speaker 03:
The only thing that Sony pointed to was the one sentence in the specification that refers to exaggerated stereo.

[00:53:12] Speaker 03:
But that, in the context of the rest of this patent, is just talking about exaggerated

[00:53:18] Speaker 03:
and being a little bit larger than the space of the human eyes.

[00:53:22] Speaker 03:
So there's nothing in the patent that would suggest it could be many orders of magnitude larger than the human eyes.

[00:53:29] Speaker 03:
And so therefore, the court should adopt our construction on that point.

[00:53:34] Speaker 03:
If the court were to adopt our construction of slightly displaced, the board did not make any finding that Asahi would anticipate under that construction.

[00:53:43] Speaker 03:
And so claim three of the 003 patent would be valid under our construction.

[00:53:48] Speaker 03:
And there's a similar circumstance with respect to claims 20 and 37 of the 284 patent.

[00:53:55] Speaker 03:
Again, under our construction, Asahi was the only basis for rejecting those claims.

[00:53:59] Speaker 03:
And so if our construction is accepted, those claims would be valid.

[00:54:03] Speaker 02:
What about the threshold issue?

[00:54:07] Speaker 02:
Talk to me about the robot reference.

[00:54:09] Speaker 02:
First, pinpoint to me where that is.

[00:54:12] Speaker 02:
Ishiguro?

[00:54:13] Speaker 02:
No, there's some line at the end of your patent, I think, that refers to computers and robots.

[00:54:20] Speaker 03:
Right.

[00:54:20] Speaker 03:
So it's column 14, I believe.

[00:54:24] Speaker 03:
Oh, the other patent.

[00:54:28] Speaker 03:
Yeah, in the LO3 patent, yeah, in the 1343 appeal.

[00:54:32] Speaker 03:
The column 14, starting at line 14, it's that paragraph.

[00:54:43] Speaker 03:
And so what this is talking about is it says it will be appreciated that systems constructed in accordance with the invention.

[00:54:50] Speaker 03:
So what that tells us is, OK, these examples are going to be consistent with everything we've said previously in the patent.

[00:54:56] Speaker 03:
It says, OK.

[00:54:57] Speaker 03:
The invention can find utility in a number of applications.

[00:55:01] Speaker 03:
And then it lists the applications.

[00:55:03] Speaker 03:
Many of the applications.

[00:55:04] Speaker 03:
I think I know what you do with computer video games.

[00:55:07] Speaker 03:
What do you do with robotics?

[00:55:08] Speaker 03:
So I would say it's if you have a robot where you've got a camera on the robot

[00:55:12] Speaker 03:
And an operator is operating the robot, but wants to see, wants to look at what the camera is displaying.

[00:55:19] Speaker 03:
So you can think of the Mars rover, for example.

[00:55:21] Speaker 03:
That's a robot that's going around the surface of Mars.

[00:55:26] Speaker 03:
And using the technology in this patent, you could display images.

[00:55:30] Speaker 02:
So you're contemplating that the robot controller at his computer screen has the red and green glasses on?

[00:55:40] Speaker 03:
Yep.

[00:55:41] Speaker 03:
That's right.

[00:55:43] Speaker 02:
Is that, that seems implausible.

[00:55:47] Speaker 02:
Is that, I mean, is there some reason to think that's plausible?

[00:55:50] Speaker 02:
I would say in the context of- As opposed to the robot with single camera or two is doing this and getting depth perception out of it.

[00:56:01] Speaker 03:
I would say that in the context of the rest of this patent that's plausible because the rest of the patent is all talking about human vision and so, you know,

[00:56:09] Speaker 03:
when the sentence is preceded with in accordance with the invention, you want to try and read these examples to the extent possible to be consistent with the rest of the patent.

[00:56:16] Speaker 03:
The rest of the patent's talking about human vision.

[00:56:19] Speaker 03:
Moving to the Joinder issues, just following up on the point you had raised initially, Judge Toronto, about consolidation, I would say, again, the board didn't reference consolidation as the basis for what it was doing here.

[00:56:32] Speaker 03:
And so the Channery Doctrine would really kick in.

[00:56:36] Speaker 03:
and prevent this court from trying to reconstruct.

[00:56:38] Speaker 02:
Well, no, because Chenery doesn't prevent upholding a decision unless upholding it would require the court to make some judgment committed to the agency, some factual or discretionary judgment.

[00:56:50] Speaker 02:
If it's perfectly clear, and I think you concede that you didn't challenge the institution, or you didn't challenge the institution,

[00:57:00] Speaker 02:
you concede, I think, at some place that they could have consolidated them, then I don't see what act of discretion of the board or PTO, the director, whoever, over there would be interfered with by saying what they did here was an unreviewable institution together with consolidation.

[00:57:23] Speaker 02:
So we don't need to get to the jointer issue.

[00:57:26] Speaker 03:
I think that's incorrect, Your Honor, because

[00:57:29] Speaker 03:
The board, so the reason we didn't challenge institution, frankly, is because if the board wasn't able to join these proceedings, it couldn't have instituted the second set of IPRs.

[00:57:38] Speaker 03:
So if the board's basis for instituting the IPRs was to say, oh, well, we have authority under this Joinder provision, if this court disagrees with the interpretation of the Joinder provision, I would say it has to send it back to the agency to read, decide the institution question under the proper law.

[00:57:54] Speaker 05:
What was your objection to Joinder before the agency

[00:57:58] Speaker 03:
It was a discretionary type of objection.

[00:58:01] Speaker 03:
So we basically said it would prejudice us because Sony's petition was too late.

[00:58:06] Speaker 03:
And there was the copending district court litigation.

[00:58:09] Speaker 03:
So it was an appeal to the director's discretionary ability not to join the proceedings based on the facts of this case.

[00:58:18] Speaker 03:
Another point to Toronto that you had made just about institution and Joinder.

[00:58:23] Speaker 03:
So the Joinder statute does talk about joining a party to that.

[00:58:28] Speaker 03:
inter-parties review.

[00:58:29] Speaker 03:
And so I would suggest that that's consistent with the idea that the Joinder statute doesn't really contemplate a second institution at all.

[00:58:38] Speaker 03:
It just contemplates adding a party to the existing.

[00:58:41] Speaker 02:
Can I ask, either under the statute or the regulations, if a party is joined, or even, I guess, if a party is not joined, I'm not sure

[00:58:50] Speaker 02:
Tell me if it makes any difference.

[00:58:52] Speaker 02:
Can claims that were not specified in the institution decision be added to the review itself, the trial as it's called?

[00:59:03] Speaker 02:
No, Judge Toronto.

[00:59:04] Speaker 02:
Is there a statute or a regulation or both that says the institution decision fixes exactly those claims that will be and can be the subject of the final written decision?

[00:59:17] Speaker 03:
I don't know that off the top of my head.

[00:59:19] Speaker 03:
My guess would be looking at the statute.

[00:59:21] Speaker 03:
These petitions address these things claim by claim.

[00:59:24] Speaker 03:
And so the board and its institution decisions looks at things claim by claim.

[00:59:27] Speaker 03:
And so I suspect we would have a statutory argument that

[00:59:30] Speaker 02:
You know, it's a claim, validity is assessed claim by claim generally, and so the board... Right, and the question is whether, put aside the jointer situation, whether if I file an IPR and the director says, right, I'm going to institute it on claim two, and then as we go along, he says, oh, we're going to add claim three.

[00:59:48] Speaker 02:
Right.

[00:59:49] Speaker 03:
I don't know, I would say, you know, if the director didn't do that in this case, and so, you know, this case would not implicate that question.

[00:59:57] Speaker 03:
Finally, if I could just say on jurisdiction, I'd just stress that this court has mandamus authority to review what the board did here.

[01:00:04] Speaker 03:
And I think all the questions raised about the fluctuating board positions and the various non-precedential decisions and expanded panels, et cetera, really show why this court needs to review this issue.

[01:00:14] Speaker 03:
It's a pure question of law.

[01:00:16] Speaker 03:
There should be a determinative construction of the statute, and the court can use its mandamus authority to do that.

[01:00:23] Speaker 05:
Thank you very much.

[01:00:25] Speaker 05:
How common is this kind of joint?

[01:00:26] Speaker 05:
Do you have any idea?

[01:00:27] Speaker 03:
I don't have that much of a sense to check.

[01:00:30] Speaker 03:
I mean, I would say, you know, there's been four or five decisions now out of the board on this issue fluctuating various ways.

[01:00:38] Speaker 03:
So, you know, it does come up.

[01:00:41] Speaker 03:
It does appear to come up a fair amount.

[01:00:43] Speaker 03:
But, you know, I suppose there are thousands of IPRs as well.

[01:00:46] Speaker 03:
So, you know, those would be the numbers.

[01:00:51] Speaker 06:
We thank all parties and the cases are submitted.

[01:00:54] Speaker 03:
Thank you.