[00:00:00] Speaker 04:
I do have a motion.

[00:00:03] Speaker 04:
Chief, I move the admission of Ji Hong Lo.

[00:00:08] Speaker 04:
She is a member of the Bar and is in good standing with the highest courts of the United States Supreme Court, California, and the District of Columbia.

[00:00:17] Speaker 04:
I have knowledge of her credentials and am satisfied that she possesses the necessary qualifications.

[00:00:25] Speaker 04:
Now it is failing

[00:00:29] Speaker 04:
common when a judge moves the admission of his or her law clerk to the power of our court to say good things and how the law clerk has performed so well and is so bright.

[00:00:45] Speaker 04:
But I have further back up to my belief.

[00:00:53] Speaker 04:
I wouldn't let Ji Hong go after her two-year term ended.

[00:00:58] Speaker 04:
I asked her to become a career law clerk, and happily, she agreed.

[00:01:03] Speaker 04:
So I think with all of that, it's clear that the motion should be granted, and I ask the panel to grant the motion.

[00:01:13] Speaker 03:
Well, I'm delighted.

[00:01:14] Speaker 03:
We're long-term neighbors now, so we're very happy at your permanent presence.

[00:01:18] Speaker 03:
And welcome to the bar.

[00:01:21] Speaker 03:
This morning.

[00:01:23] Speaker 02:
Please raise your right hand.

[00:01:25] Speaker 02:
Do you solemnly swear or affirm that you will appoint yourself as an attorney and counsel of this court, uprightly and according to law, and that you will support the Constitution of the United States of America?

[00:01:34] Speaker 00:
I do.

[00:01:35] Speaker 02:
Welcome to the bottom of the United States Court of Appeals.

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

[00:01:40] Speaker 03:
OK.

[00:01:41] Speaker 03:
Now, the first case for argument this morning is 15-1925, Cooper v. Square, Inc.

[00:01:47] Speaker 03:
Mr. Greenspoon, now we're ready.

[00:01:51] Speaker 01:
Yes, thank you, and good morning, Your Honors.

[00:01:53] Speaker 01:
Today, I would like to call out two grounds for non-anticipation on the 005 and 207 patents, and one ground for non-anticipation on the 875 patent.

[00:02:07] Speaker 01:
And of course, I remain available for questions on any other issues that are raised in the briefing.

[00:02:14] Speaker 01:
Your Honors, even on substantial evidence review, this Court has been quick to reverse

[00:02:20] Speaker 01:
in situations where it's found that no reasonable mind could take the evidence supplied to argue anticipation and come to that conclusion.

[00:02:32] Speaker 01:
And here, no reasonable mind could.

[00:02:35] Speaker 01:
A prior art reference does not disclose the claim or the claim limitation in this case.

[00:02:41] Speaker 01:
When the proponents expert concedes, and I quote, it's not specified in the prior art.

[00:02:48] Speaker 01:
And that quote is taken from A1229.

[00:02:51] Speaker 05:
But which is the element as to which that statement was made?

[00:02:57] Speaker 01:
That is the emitter element with different phrasings, but it's an emitter that must transmit credit card-related information.

[00:03:06] Speaker 01:
So the disclosure that needed to be in the prior art to satisfy this limitation was the wireless transmission of credit card-related information

[00:03:17] Speaker 01:
So Your Honors, I took that deposition and I directed the expert to exactly where he had stated in his declaration that that element is contained, walked him through it, and he impeached himself because he had to answer under oath and truthfully.

[00:03:36] Speaker 01:
And he explained that it's not specified in the document that that's there.

[00:03:40] Speaker 05:
I'm sorry.

[00:03:40] Speaker 05:
Let's just say again, what was the page in the Joint Appendix where that quote occurs?

[00:03:45] Speaker 01:
Sure.

[00:03:45] Speaker 01:
That was A1229.

[00:03:50] Speaker 01:
Just under, I think, the middle of the page, you'll see a standalone answer.

[00:03:54] Speaker 01:
It's not specified.

[00:03:59] Speaker 01:
So that was the wireless credit card account information transmission limitation of 005 and 207.

[00:04:07] Speaker 01:
And what was astonishing, and we called it that in our blue brief, is though we had raised this in our briefing before the Patent Trial and Appeal Board, the PTAP,

[00:04:15] Speaker 01:
The final written decision never acknowledges the existence of this testimony.

[00:04:21] Speaker 01:
It just blows right by it.

[00:04:23] Speaker 01:
And we contend that the PTAB actually invented on top of Petroda itself in its ultimate finding that it found the claim limitation to be present.

[00:04:35] Speaker 01:
Its entire analysis comes in a single sentence.

[00:04:38] Speaker 01:
And allow me to read that.

[00:04:39] Speaker 01:
Petroda's IRRF option.

[00:04:43] Speaker 03:
Where are you reading from?

[00:04:44] Speaker 01:
Yes, now I'm reading from A37.

[00:04:46] Speaker 01:
And just as an aside, two of the three final written decisions here are virtually identical.

[00:04:57] Speaker 01:
So you'll find this quote in another of the decisions.

[00:05:01] Speaker 01:
But, quote, Petroda's IRRF option is provided.

[00:05:06] Speaker 05:
It's right smack in the middle of the page.

[00:05:08] Speaker 01:
Correct.

[00:05:09] Speaker 01:
as an alternative means of communication of the information required to be communicated by the UET card to the CIU.

[00:05:19] Speaker 01:
That's the PTABS analysis.

[00:05:21] Speaker 01:
But in reality, as we briefed and as Square's expert admitted, this level of detail just isn't present in the reference.

[00:05:28] Speaker 01:
The record supports that.

[00:05:29] Speaker 01:
Something else is doing something similar.

[00:05:33] Speaker 01:
It's the pin contacts.

[00:05:35] Speaker 01:
These are mechanical conductive pins.

[00:05:37] Speaker 01:
not the IRRF option.

[00:05:40] Speaker 01:
And that's how Petroda, the reference we're talking about, gets the credit card related information off of its card.

[00:05:48] Speaker 01:
So for the support that it's in contacts that do this, it would be in the Petroda document itself at column 16, lines 35 through 41.

[00:05:59] Speaker 01:
And lest there be any doubt, this is the section of the patent where I would commend your honor's attention to

[00:06:07] Speaker 01:
column 15, line 65, this is the part of the patent that starts to finally get into what happens during a transaction.

[00:06:17] Speaker 01:
So the only place in the prior art patent where it starts talking about what's happening in a transaction, it talks about the mechanical pin contacts.

[00:06:25] Speaker 01:
So there's no wireless transmission of that kind of information, and that would have been required for a sound anticipation holding.

[00:06:32] Speaker 04:
These patents have all expired, right?

[00:06:34] Speaker 01:
That is correct, Judge.

[00:06:36] Speaker 01:
Yes, Your Honor.

[00:06:37] Speaker 04:
And the prior art is really contemporaneous.

[00:06:42] Speaker 04:
In other words, this art was developing at the same time, and a lot of patents were filed on the same very closely related technology.

[00:06:54] Speaker 04:
And the Petroda and the Katinas references just beat yours.

[00:07:02] Speaker 04:
The patent office decided substantial evidence.

[00:07:05] Speaker 01:
You're jerking my art chains, but yes, Judge Laurie, we acknowledge their prior art, though.

[00:07:11] Speaker 01:
We don't try to overcome that.

[00:07:14] Speaker 01:
And that's actually commonplace, as Your Honor is aware, for a lot of development in a field to go on and a lot of more or less simultaneous patents to be cropping up at about the same time.

[00:07:25] Speaker 04:
There probably weren't interferences here, were there?

[00:07:29] Speaker 01:
No.

[00:07:30] Speaker 01:
There's no record of that, and I'm not aware of that, Judge.

[00:07:33] Speaker 01:
Moving on to the second gap in Petroda,

[00:07:36] Speaker 01:
That's that it never has the card microcontroller, the UET card microcontroller actually perform the memory writing of credit card related information.

[00:07:49] Speaker 01:
And again, the clear disclosure is that something else does it.

[00:07:53] Speaker 01:
There's this, what we call the CIU, that's an outside device that mechanically couples to the pin contacts.

[00:08:00] Speaker 01:
And then, I'm using a hand gesture, but it bypasses the microcontroller

[00:08:05] Speaker 01:
to drop that kind of information into the non-volatile ramp.

[00:08:08] Speaker 05:
Where's the description of the bypassing?

[00:08:12] Speaker 05:
If I remember right, the figure shows a little line.

[00:08:16] Speaker 05:
This is the non-volatile memory off to the right side of the figure, and then there's a little line connecting it to the

[00:08:25] Speaker 05:
controller, but you say that there's some outside device that's actually controlling that.

[00:08:32] Speaker 01:
Correct.

[00:08:32] Speaker 05:
So where are the words?

[00:08:33] Speaker 05:
Because the picture would not suggest that.

[00:08:36] Speaker 05:
So where are the words?

[00:08:37] Speaker 01:
That's a fair reading of the picture.

[00:08:39] Speaker 01:
But of course, the pictures have to be understood in light of the disclosure.

[00:08:42] Speaker 01:
So I would commend your honor's attention to column 11.

[00:08:47] Speaker 01:
And it's a column 11.

[00:08:50] Speaker 01:
Petroda.

[00:08:51] Speaker 01:
In Petroda, it's A398.

[00:09:00] Speaker 01:
Yeah.

[00:09:02] Speaker 01:
And it's near the bottom of the paragraph that starts at line 12.

[00:09:08] Speaker 01:
So what I'm going to direct Your Honor's attention to is line 24.

[00:09:11] Speaker 01:
Right.

[00:09:12] Speaker 01:
Pin contacts 38 to connect to the memory.

[00:09:18] Speaker 01:
And then.

[00:09:20] Speaker 05:
It says with direct contact.

[00:09:21] Speaker 01:
Right.

[00:09:22] Speaker 01:
And then just.

[00:09:22] Speaker 05:
Connect to the CIE.

[00:09:23] Speaker 01:
Correct.

[00:09:24] Speaker 01:
And then just prior to that, there's.

[00:09:26] Speaker 05:
I guess it seems to me it would be stronger if the words to connect

[00:09:30] Speaker 05:
weren't there.

[00:09:32] Speaker 01:
Well, in full judge, it says, touch memories with direct contact to connect to the CIU, direct contact.

[00:09:39] Speaker 01:
And there's actually no dispute among the parties that that is a disclosure of an embodiment that does this kind of bypass that I'm mentioning.

[00:09:48] Speaker 01:
At page 34, note 12 in the red brief, even Square acknowledges that there is a disclosure of what I'm describing.

[00:09:57] Speaker 01:
the CIU drops the credit card information into the memory, bypassing the microcontroller.

[00:10:02] Speaker 01:
So if you compare the panel's analysis to what Petroda actually discloses, you'll see that none of the Petroda excerpts cited by the panel actually gives a role to the microcontroller to do this job.

[00:10:18] Speaker 01:
If that were disclosed, we would see the panel siting to a place in Petroda which says, oh, by the way, the microcontroller drops credit card related information into the memory.

[00:10:29] Speaker 01:
But it just never says that.

[00:10:31] Speaker 01:
We characterize it in our blue brief as a so-called thin device.

[00:10:34] Speaker 01:
It's thin in the sense, this is our verbiage at the appellate court level, but it's thin in the sense that it doesn't have the full range of functionality that, for example, Mr. Cooper's card did.

[00:10:47] Speaker 01:
So now moving on to the 875 patent.

[00:10:51] Speaker 01:
Here we have another clear expert admission, in our view, preventing the existence of substantial evidence.

[00:10:57] Speaker 01:
And in this particular case, to meet the claim, keekiness, which is the prior art we're talking about, would have to disclose the display of credit card-related information.

[00:11:11] Speaker 01:
But here, Your Honors, I direct your attention to A1155 to 56.

[00:11:16] Speaker 01:
This is where Square's expert admitted that it's not there.

[00:11:19] Speaker 01:
I mean, if I had to rank them, I would say that this is an even more clear admission than the prior one I discussed.

[00:11:26] Speaker 01:
And again, Your Honors, I submit there cannot be substantial evidence of anticipation, evidence on which a reasonable mind can depend if the proponent's expert says it's not there.

[00:11:37] Speaker 01:
And we show in our brief that the PTAB did make an effort to get around this testimony.

[00:11:45] Speaker 01:
But what they did is they built what I'm going to characterize today as a firewall.

[00:11:49] Speaker 01:
They put a firewall around two particular sentences in keekiness.

[00:11:53] Speaker 01:
And they made an assertion that effectively that Mr. Dreyfus didn't include those two sentences within the scope of his admission.

[00:12:05] Speaker 01:
But the record just did not support that.

[00:12:07] Speaker 01:
And we demonstrate that at pages 21 to 23 of our reply brief.

[00:12:12] Speaker 01:
Square's expert made his admission about the entirety of the relevant kickiness disclosure.

[00:12:17] Speaker 01:
He did not put in any provisos or caveats, and the content backs this up.

[00:12:23] Speaker 01:
Your honors, I see I'm into my rebuttal time.

[00:12:25] Speaker 03:
Yes, why don't we hear from the other side?

[00:12:27] Speaker 03:
Thank you, sir.

[00:12:38] Speaker ?:
Thank you.

[00:12:39] Speaker 00:
Good morning.

[00:12:39] Speaker 00:
Good morning, your honors.

[00:12:40] Speaker 00:
May it please the court?

[00:12:41] Speaker 00:
All the evidence, all the issues that Mr. Cooper raises today are issues that take issue with the board's findings of fact.

[00:12:48] Speaker 00:
And of course, those are reviewed for substantial evidence.

[00:12:50] Speaker 00:
And the only thing that this court looks at is whether any reasonable person could have reached the same conclusion that the board did.

[00:12:56] Speaker 00:
And all of the board's findings survive that level of scrutiny.

[00:12:59] Speaker 03:
So are you saying with respect to the comments that he challenges that your expert made that the board read those differently?

[00:13:06] Speaker 03:
Or are you saying that their right was just discounted and the board had a right to do that?

[00:13:10] Speaker 00:
Well, I was saying both, Your Honor.

[00:13:11] Speaker 00:
Both the board read it differently and had a right as a finding of fact to read the evidence in a different way.

[00:13:16] Speaker 00:
And also the board independently relied on the evidence from the patents themselves.

[00:13:20] Speaker 00:
And I'll show that with respect to each of these limitations, which is itself substantial evidence independent of what the expert testified.

[00:13:27] Speaker 00:
So with respect to the emitter limitation, the requirement is there is for wireless transmission of account information.

[00:13:34] Speaker 00:
And it's undisputed that the UET card of Petroda transmits account information.

[00:13:38] Speaker 00:
That's in column 16.

[00:13:40] Speaker 00:
But it's a combination of column 16 and the disclosures in column 9 that lead to the wireless transmission of account data.

[00:13:48] Speaker 00:
And what the board found was that there are

[00:13:52] Speaker 00:
It's an either or scenario.

[00:13:54] Speaker 00:
There are two embodiments disclosed.

[00:13:56] Speaker 00:
And I'm going to quote here from column nine.

[00:13:58] Speaker 00:
The UET card communicates, quote, either through physical metal metallic contact preferred for the touch memory devices.

[00:14:06] Speaker 00:
That's the wired embodiment.

[00:14:08] Speaker 00:
I'm quoting again.

[00:14:10] Speaker 00:
Or infrared or radio frequency based wireless transmit and receive units.

[00:14:15] Speaker 00:
That's the wireless embodiment.

[00:14:16] Speaker 00:
And which of these alternative communication paths the UET card uses

[00:14:22] Speaker 00:
It depends on the particular embodiment, whether it's wired or wireless.

[00:14:25] Speaker 00:
And now I'm quoting now from the second excerpt that the board relied on, where it says the CIU includes means for receiving data.

[00:14:31] Speaker 05:
I'm sorry.

[00:14:32] Speaker 05:
What are you reading from?

[00:14:33] Speaker 00:
I'm sorry.

[00:14:33] Speaker 00:
I'm reading from column nine, lines 59 to 63.

[00:14:36] Speaker 00:
That's A397.

[00:14:38] Speaker 00:
And I'm also reading from A13.

[00:14:42] Speaker 00:
And as Mr. Greenspoon pointed out, there are nearly identical final written decisions here for the two.

[00:14:48] Speaker 00:
So I'm quoting from the 005 final written decision.

[00:14:52] Speaker 00:
And this is the language that the board specifically relied upon to support its conclusion that there's wireless communication of account information.

[00:15:03] Speaker 00:
And again, what I was just about to quote was, it says, depending upon the system used by the UET card, and that's again, 59 to 63.

[00:15:14] Speaker 00:
So what the board found is that these are alternative means for providing information.

[00:15:18] Speaker 00:
It's an either or situation according to the board.

[00:15:21] Speaker 00:
So when it's a touch memory device, it communicates the account information via the pin contacts.

[00:15:27] Speaker 00:
That's correct.

[00:15:27] Speaker 00:
And that's what's disclosed.

[00:15:29] Speaker 00:
But when it's a wireless embodiment, it transmits wirelessly through the infrared or radio frequency, which is item 39 of figure 3.

[00:15:39] Speaker 00:
Now, Mr. Greenspoon said that the column 16 disclosure refers to the metallic pins.

[00:15:46] Speaker 00:
Now, that's not correct.

[00:15:47] Speaker 00:
All that the disclosure in 16 talks about is that there is a connection

[00:15:51] Speaker 00:
So there's a connection between.

[00:15:53] Speaker 05:
I may be mixing things up, but I'm hoping not.

[00:15:57] Speaker 05:
So Mr. Greenspoon, I think, called our attention to Mr. Dreyfus's statement at A1229, which is about column nine.

[00:16:09] Speaker 05:
Would you agree that there's no disclosure of exactly?

[00:16:12] Speaker 05:
What is to be transmitted via RF or infrared?

[00:16:15] Speaker 05:
It's not specified.

[00:16:17] Speaker 00:
I agree that that is Mr. Dreyfus's testimony that in column nine.

[00:16:21] Speaker 05:
So why is, what do you make of that or more importantly what did the board make of that?

[00:16:25] Speaker 00:
So the board relied on the combination of both column nine and column 16 as did Mr. Dreyfus because it is the disclosure of the either or functionality in column nine that says

[00:16:37] Speaker 00:
If the UET card is a wired embodiment, the information goes over the PIN contacts.

[00:16:41] Speaker 00:
If it's a wireless embodiment, the information goes over the IRRF.

[00:16:44] Speaker 05:
So he was giving one of those common deposition answers that was focused just like this.

[00:16:50] Speaker 05:
You asked about column 9.

[00:16:51] Speaker 05:
I'm going to give you an answer about column 9.

[00:16:54] Speaker 00:
That's right, Your Honor.

[00:16:55] Speaker 00:
And although it's not in the joint appendix, though, if you read on in the testimony from 1229 to 1236, Mr. Dreyfus explains his combination of columns 9 and 16.

[00:17:05] Speaker 00:
It's just that part just isn't

[00:17:06] Speaker 00:
And we're happy to provide that.

[00:17:07] Speaker 00:
We just didn't put that in the joint appendix.

[00:17:09] Speaker 00:
But his declaration testimony and his deposition testimony are perfectly harmonious.

[00:17:13] Speaker 05:
And the board did or did not rely on those portions of Mr. Dreyfus's testimony?

[00:17:20] Speaker 00:
The board did rely on those.

[00:17:22] Speaker 00:
But as an independent basis for its conclusion, it independently also relied on, if you look at A13, where the board is talking about its conclusion, it's relying on those columns, on column 9 disclosures that I just quoted to this court.

[00:17:35] Speaker 00:
Forgive me.

[00:17:37] Speaker 00:
The board, Mr. Greenspoon also said that the board did not consider Mr. Dreyfus' testimony at all, and that's just not correct.

[00:17:44] Speaker 00:
What the board did is consider the argument that was based on Mr. Dreyfus' testimony.

[00:17:49] Speaker 00:
It cited in particular a three and a half page portion of the patent owner response.

[00:17:55] Speaker 00:
Most of those three and a half pages are a block quote of Mr. Dreyfus' testimony that's at issue here.

[00:18:00] Speaker 00:
So the board referred to those pages, referred to the argument,

[00:18:05] Speaker 00:
This is at A 1039 to 1042 is the relevant portion of the patent owner response that the board referred to.

[00:18:15] Speaker 00:
And as the court can see, Mr. Dreifuss's testimony is the vast majority of that.

[00:18:20] Speaker 00:
So the board specifically referring to those pages and addressing that argument is, in fact, addressing Mr. Dreifuss's testimony and whether it's in any way inconsistent with his declaration.

[00:18:31] Speaker 00:
So moving to the control circuit limitation, which is the second issue,

[00:18:34] Speaker 00:
from the 005 and the 207 patent.

[00:18:38] Speaker 00:
So here what Mr. Cooper argues is that the only thing that performs the memory storage function from the UET card is this external device called the communication interface unit, the CIU.

[00:18:51] Speaker 00:
But the board said

[00:18:52] Speaker 00:
the board concluded to the contrary, and there's substantial evidence, in fact, extensive evidence supporting the board's conclusion.

[00:18:58] Speaker 05:
By the way, I mean, do you agree with, I think, what Mr. Greenspoon said, that you read that passage that he read from in whatever the column was, I don't remember, that refers to a direct contact to connect to the CIU means a direct contact to the CIU rather than

[00:19:20] Speaker 05:
a direct contact to some intermediate thing like the controller?

[00:19:24] Speaker 00:
Well, the testimony from Mr. Dreyfus was that the direct contact didn't require bypassing the microcontroller.

[00:19:30] Speaker 00:
And we've never agreed that there's bypassing the microcontroller.

[00:19:33] Speaker 00:
All we've said is that the CIU can write in our footnote.

[00:19:35] Speaker 00:
The CIU can write to memory.

[00:19:37] Speaker 05:
And that was footnote what?

[00:19:39] Speaker 00:
I can't recall offhand.

[00:19:41] Speaker 05:
Was that 3412?

[00:19:42] Speaker 00:
I believe so, Your Honor.

[00:19:43] Speaker 00:
That's right.

[00:19:44] Speaker 00:
But let's look at the disclosures that are actually there and that the board relied on.

[00:19:48] Speaker 00:
So Petroda discloses, first of all, as Judge Taranto pointed out, there is a line from the microcontroller to the memory.

[00:19:55] Speaker 00:
Memory 34 and memory 33 is directly within the microcontroller box.

[00:20:00] Speaker 00:
So there's a direct connection between those.

[00:20:02] Speaker 00:
And then Petroda discloses in four separate places that it's the UET card and not the CIU that performs the memory storage function.

[00:20:11] Speaker 00:
And I just want to focus on one of those, which is at page 394 of the appendix, column three.

[00:20:19] Speaker 00:
Lines 11 to 14.

[00:20:22] Speaker 00:
And what it says is, Petroda discloses that the information stored, transmitted, or received by the UET card may include, and I have ellipses here, account information for each service institution.

[00:20:35] Speaker 00:
So stored, transmitted, or received by the UET card.

[00:20:39] Speaker 00:
So if information is transmitted by the UET card, the UET card is doing the transmitting.

[00:20:45] Speaker 00:
If information is received by the UET card,

[00:20:48] Speaker 00:
the UET card is doing the receiving.

[00:20:50] Speaker 00:
Likewise, if information is stored by the UET card, the UET card is doing the storing.

[00:20:56] Speaker 00:
And so there's no passive, so this isn't used in the passive sense here.

[00:20:59] Speaker 00:
That sentence shows that the UET card is what is doing the storing.

[00:21:03] Speaker 00:
And there are three other excerpts we rely on in our brief.

[00:21:06] Speaker 00:
I won't read them into the record, but they're on pages 32 and 33 of the red brief, where each one of those excerpts that the board relied on to find substantial evidence that it's the

[00:21:17] Speaker 00:
UET card that's doing the writing to memory here.

[00:21:20] Speaker 00:
And the board relied on something more.

[00:21:22] Speaker 00:
The board relied on the disclosure, this is in columns, columns 11 to 12, 11 to 40 to 12, six, of the software blocks for the UET card.

[00:21:32] Speaker 00:
Now this isn't software that's external to the UET card.

[00:21:35] Speaker 00:
This isn't a thin device.

[00:21:36] Speaker 00:
This is a device with a microcontroller, a database on it, and software.

[00:21:41] Speaker 00:
And the board relied on the fact that it has software on it, and the software has database management,

[00:21:47] Speaker 00:
and memory management functions.

[00:21:50] Speaker 00:
And relying on Square's expert, Mr. Dryfus, and also relying on disclosures within Petroda, the board concluded that it is the microcontroller of the UET that performs this database and memory management, which includes not just reading, but writing to memory.

[00:22:07] Speaker 00:
It has storage that is disclosed.

[00:22:09] Speaker 00:
So storage is disclosed as being performed by the UET card generally, and also being done by the microcontroller.

[00:22:16] Speaker 00:
based on these software blocks and the fact that the microcontroller runs the software, that's undisputed, and the software's database management and memory management, and relying on Mr. Dreyfus's testimony, and on the disclosures, especially column 18, lines 18 to 20, the board found that the microcontroller is what performs the storage and memory.

[00:22:40] Speaker 00:
And that's at pages A, it's A15 to 16, which the board adopted on A17.

[00:22:47] Speaker 00:
Now, finally, the board relied on one more thing, and that was that there's memory within the microcontroller block.

[00:22:52] Speaker 00:
That's memory 33.

[00:22:53] Speaker 00:
And when that memory, and relying on Mr. Dreyfus, Square's expert, the board found that when memory is stored, when account information is stored to that memory, it's simply impossible for the CIU to store anything to that memory.

[00:23:08] Speaker 05:
By the way, I don't remember the answer maybe it was given, but what is the B plus box in that picture, in figure three?

[00:23:17] Speaker 05:
Off to the left.

[00:23:19] Speaker 05:
Let's see.

[00:23:24] Speaker 05:
301.

[00:23:24] Speaker 05:
I think it's the battery, Your Honor.

[00:23:26] Speaker 05:
That's the battery.

[00:23:26] Speaker 05:
I believe so.

[00:23:27] Speaker 05:
I should have figured that out.

[00:23:30] Speaker 00:
No problem.

[00:23:32] Speaker 00:
So the CIU cannot write to memory 33.

[00:23:35] Speaker 00:
And there seems to be no dispute about that.

[00:23:37] Speaker 00:
So when account information, as Mr. Dreyfus testified, is written to RAM 33, that is performed by the microcontroller of the UET card.

[00:23:47] Speaker 00:
So finally, turning to the display limitation of the 875 patent, this requires, you honors will recall, a display that's configured to display some amount of credit card information.

[00:24:00] Speaker 00:
And the board here relied on a 4064, so 4064, the appendix, column 14, and a disclosure that it identified as the disclosure at one, bracketed one, to distinguish it from a later disclosure, which is a disclosure of bracketed two.

[00:24:18] Speaker 00:
And they're introduced by different language.

[00:24:20] Speaker 00:
One of them is this aspect, and one of them is in one aspect.

[00:24:23] Speaker 00:
It refers to a subset, a telephone call aspect.

[00:24:27] Speaker 00:
And what the board found is that the language in that disclosure, the unique control routines and display configurations, and I'm paraphrasing here, but this is 14 and 36 to 41, those display configurations in conjunction with credit card numbers,

[00:24:44] Speaker 00:
ensure that the information stored in the device, the Keekiness device, is readily available and may be quickly and conveniently accessed and used.

[00:24:53] Speaker 00:
And from that, the board concluded, as a matter of fact, that this disclosure reflects the action of displaying credit card account information.

[00:25:01] Speaker 00:
And I'm reading there from A63.

[00:25:04] Speaker 00:
And this finding, the board based its finding on the direct disclosure in Petroda, excuse me, in Keekiness.

[00:25:10] Speaker 00:
I said Petroda, I meant Keekiness.

[00:25:12] Speaker 00:
And that itself is substantial evidence.

[00:25:14] Speaker 00:
Now, what Mr. Cooper argues is that, well, your expert said something different in his deposition.

[00:25:20] Speaker 00:
But that's not correct.

[00:25:21] Speaker 00:
The board looked specifically at that issue and looked at what the expert testified.

[00:25:26] Speaker 00:
And what happened was that, and the key testimony on this is on 4642 of the appendix.

[00:25:33] Speaker 00:
At the top of that page, what Mr. Greenspoon did is direct the expert to the disclosure at two, the one aspect information.

[00:25:43] Speaker 00:
read it aloud into the record, and then asked a series of questions about that disclosure at 2.

[00:25:49] Speaker 00:
The expert answered those questions.

[00:25:51] Speaker 00:
And the board looked at that testimony and said, in context, the expert was answering about the disclosure at 2.

[00:25:56] Speaker 00:
So at worst for Square, this is ambiguous testimony.

[00:26:03] Speaker 00:
I don't think it's ambiguous.

[00:26:04] Speaker 00:
Square wasn't confused.

[00:26:05] Speaker 00:
The board wasn't confused.

[00:26:06] Speaker 00:
The only one confused here is Mr. Greenspoon.

[00:26:08] Speaker 00:
And he could have clarified this.

[00:26:09] Speaker 00:
He could have asked the expert, are you repudiating your prior testimony?

[00:26:13] Speaker 00:
What do you make of the disclosure at one?

[00:26:15] Speaker 00:
Are you saying, what do you say about the disclosure?

[00:26:17] Speaker 05:
Do you take depositions?

[00:26:18] Speaker 05:
I do, Your Honor.

[00:26:20] Speaker 00:
But this is the risk of relying on an ambiguity, is the fact finder may disagree with you.

[00:26:25] Speaker 00:
If you rely on ambiguity and the fact finder disagrees with you, you're stuck.

[00:26:29] Speaker 00:
Ambiguity is resolved in favor of the board under substantial evidence review.

[00:26:34] Speaker 00:
And the board was well within its rights to decide that this testimony is ambiguous.

[00:26:39] Speaker 00:
Now, Mr. Cooper makes a couple of arguments in his reply brief that he didn't mention here today, but I want to respond to those.

[00:26:44] Speaker 00:
One of them is that we should read out of existence the words display configuration, because the words control routines also appear.

[00:26:52] Speaker 00:
But control routines and display configurations are explicitly linked in the Keeganist disclosure.

[00:26:57] Speaker 00:
And I just would refer the court to column 7, lines 27 to 29, which says that the thumb wheel controls the configuration of display according to control routines.

[00:27:09] Speaker 00:
and column two, lines 30 to 32 that says, control routines operate in conjunction with the display.

[00:27:16] Speaker 00:
So there's no separability between the control routines and the display configurations.

[00:27:20] Speaker 00:
They're part and parcel of one another.

[00:27:23] Speaker 00:
And then finally, Mr. Cooper argues that the board couldn't have interpreted the disclosure at one any differently than the disclosure at two, because the disclosure at two is just a straight elaboration of the disclosure at one.

[00:27:35] Speaker 00:
And that's not correct.

[00:27:36] Speaker 00:
The disclosure at two is a subset

[00:27:38] Speaker 00:
It's a species, if you will, of the genus from the disclosure one.

[00:27:42] Speaker 00:
It's a particular telephone conversation that occurs.

[00:27:46] Speaker 00:
So for these reasons, I respectfully ask the court to affirm the claim.

[00:27:54] Speaker 01:
Thank you.

[00:27:55] Speaker 01:
Starting with the last thing first, let me read to your honors the testimony showing why it wasn't a tunnel vision Q&A examination with Mr. Dreyfus.

[00:28:05] Speaker 01:
I did direct him to the exact text starting on line 41 of the reference about the things that are displayed in Keekiness.

[00:28:15] Speaker 01:
And then moving on, I asked, there's no other aspect disclosed besides that.

[00:28:20] Speaker 01:
That's really the only aspect.

[00:28:22] Speaker 05:
I'm sorry, you're reading from A4642?

[00:28:24] Speaker 01:
I'm reading from, actually, it might be a second place in the record where the deposition exists.

[00:28:30] Speaker 01:
It's between A1153 and A1155.

[00:28:35] Speaker 01:
But I get him to these Q&A's.

[00:28:38] Speaker 01:
There's no other aspect disclosed besides that.

[00:28:41] Speaker 01:
That's really the only aspect that's described.

[00:28:43] Speaker 01:
Right?

[00:28:44] Speaker 01:
Answer.

[00:28:44] Speaker 01:
That's the example he uses to teach.

[00:28:47] Speaker 01:
Yes.

[00:28:48] Speaker 01:
There's no other disclosure than that of what is shown on the display for the cellular telephone interface functionality.

[00:28:56] Speaker 01:
Answer.

[00:28:56] Speaker 01:
In the patent body, that is what is explained.

[00:28:59] Speaker 01:
Yes.

[00:29:00] Speaker 01:
That was not tunnel vision question and answer.

[00:29:04] Speaker 01:
I asked him for everything.

[00:29:05] Speaker 01:
Give me all you got.

[00:29:07] Speaker 01:
And when we got to the four things that are displayed, it didn't include credit card-related information.

[00:29:13] Speaker 01:
Going back, again, the middle issue, if you will.

[00:29:18] Speaker 01:
Your Honor, you directed a question about the B-plus in Figure 3 of Petroda.

[00:29:24] Speaker 01:
It's a battery?

[00:29:25] Speaker 01:
It is a battery.

[00:29:26] Speaker 01:
But what's interesting to note is this just demonstrates that you can't really trust these figures to be representative of how the device is built.

[00:29:34] Speaker 01:
Because if you look at B+, it has an unconnected arrow pointing in the direction of the rest of the circuitry.

[00:29:42] Speaker 01:
And I think it just goes without saying that if it's a battery, in reality, it's going to be connected.

[00:29:48] Speaker 01:
So then the figure is really very stylized, as we explained in our own brief about the very same type of stylization.

[00:29:58] Speaker 01:
We heard Mr. Angeles direct the court to

[00:30:04] Speaker 01:
certain columns and lines in Petroda where it says there's storage, transmission, and something else, quote, by the UET card.

[00:30:13] Speaker 01:
As we explained in our briefing, there are really two senses of store, the word store going on here.

[00:30:20] Speaker 01:
The precise sense that needs to be shown in the reference to meet the anticipation requirement is writing.

[00:30:27] Speaker 01:
There has to be a microcontroller that writes to memory.

[00:30:31] Speaker 01:
the more sort of broad or imprecise sense is what we call the passive sense of storing, which is the card as a whole can store a particular kind of information even if it's something external to the card that's done the writing slash storage of that information to the memory.

[00:30:49] Speaker 01:
So when you actually look at all of the places in the reference describing the UET card storing something, it's always in the sense and in the context of

[00:30:59] Speaker 01:
It's a part of holding it.

[00:31:01] Speaker 01:
Holding is an excellent way of describing that sense, yes.

[00:31:06] Speaker 01:
And finally, back to the first issue that Mr. Angelus started with, I raised my eyebrows.

[00:31:15] Speaker 01:
I heard when he started his talk, he said that what the board did is create a combination of column 16 and column 7 that led to the conclusion that

[00:31:27] Speaker 01:
There's something from column A and something from column B, and you combine them, and there you have the claim limitation.

[00:31:33] Speaker 01:
We know from the net money in case and cases like that that you can't take the independent disclosures of a reference and combine them to come up with an anticipation theory.

[00:31:45] Speaker 01:
If there's an issue to be raised there on their behalf, it's going to be one of obviousness if you're going to go to combinations.

[00:31:53] Speaker 01:
And finally,

[00:31:54] Speaker 01:
Back to the tunnel vision deposition style issue that Mr. Angelus brought up.

[00:32:00] Speaker 01:
Let me direct your honor's attention to when I asked Mr. Dreyfus questions about Petroda.

[00:32:08] Speaker 01:
And this is from a range 1228 to A1230.

[00:32:12] Speaker 01:
I can't pinpoint exactly where in that.

[00:32:15] Speaker 01:
But here's my question.

[00:32:16] Speaker 01:
Now I'm going to ask you to confirm that those are the only places

[00:32:21] Speaker 01:
where radio frequency or infrared are discussed at all in the entirety of the Petroda patent?

[00:32:26] Speaker 01:
That is, column 9, lines 59 to 62, and column 11, lines 25 and 26.

[00:32:32] Speaker 01:
Answer OK.

[00:32:33] Speaker 01:
And then I have a follow-up question, making sure that he actually took that as a question.

[00:32:37] Speaker 01:
Then his answer was, I believe so.

[00:32:39] Speaker 01:
That is the demonstration that in neither case were these tunnel vision Q&As that allowed the type of judicial

[00:32:49] Speaker 01:
allowances that we see in the PTAP decision.

[00:32:52] Speaker 01:
For all these reasons, I would respectfully ask that the court reverse the decision of the patent trial and appeal board.

[00:32:58] Speaker 03:
Thank you.

[00:32:58] Speaker 03:
We thank both counsel and the cases.