[00:00:02] Speaker 01:
Good morning, ladies and gentlemen.

[00:00:05] Speaker 01:
Welcome to a session of the Federal Circuit.

[00:00:09] Speaker 01:
We originally had four argued cases for today.

[00:00:11] Speaker 01:
One has gone submitted and the other

[00:00:16] Speaker 01:
settled at the last minute.

[00:00:17] Speaker 01:
So you are down to two cases, but there's a lot to talk about.

[00:00:21] Speaker 01:
So the first case before the court is Grand Eye Limited versus Google Inc.

[00:00:28] Speaker 01:
It is an appeal from the Patent Trial and Appeal Board.

[00:00:31] Speaker 01:
The claims of three separate patents were deemed to be unpatentable or deemed to be anticipated and or obvious over certain prior art references.

[00:00:43] Speaker 01:
And the appellee challenges that finding.

[00:00:46] Speaker 01:
So Mr. Chow, I understand that you want to save five minutes for rebuttal?

[00:00:50] Speaker 01:
Yes, Your Honor.

[00:00:51] Speaker 01:
OK.

[00:00:52] Speaker 01:
You may begin.

[00:00:56] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:59] Speaker 03:
I just wanted to follow up on the two technologies at stake here and put in context both the two substantive issues and the procedural issues here.

[00:01:10] Speaker 03:
The first is the OXO patents.

[00:01:13] Speaker 03:
And the OXO patents really are directed towards the visualization of what he called false around image data, which we'll call FSID.

[00:01:25] Speaker 03:
And the false around image data that he disclosed was a fish eye image, hemispherical image.

[00:01:33] Speaker 03:
Mr. Cho.

[00:01:34] Speaker 02:
Yes.

[00:01:35] Speaker 02:
I view this as an opportunity to

[00:01:37] Speaker 02:
get some questions answered, some specifics.

[00:01:40] Speaker 02:
In the red brief at 35, Google says, I'm going to quote for you, Grand Eye now suggests in passing that it raised the issue of whether ray casting is texture mapping of FSID in its response.

[00:01:56] Speaker 02:
But the cited pages, A339, 340, reveal no such thing.

[00:02:01] Speaker 02:
I looked at

[00:02:02] Speaker 02:
339 to 340 in the appendix and I couldn't find it.

[00:02:07] Speaker 02:
What specific language there shows the issue was raised?

[00:02:11] Speaker 03:
Well the issue was raised in that

[00:02:18] Speaker 03:
Let me say that it's not clear that's the particular issue.

[00:02:22] Speaker 03:
The issue that's raised in the response had been that there was no texture mapping by projection of full surround image data.

[00:02:33] Speaker 03:
So the issue here was really that

[00:02:38] Speaker 03:
As I was going to explain, the photo VR doesn't actually... I understand the issue.

[00:02:44] Speaker 02:
Listen again to my question.

[00:02:46] Speaker 02:
You cite 339 to 3400.

[00:02:48] Speaker 02:
Where did you raise it there?

[00:03:00] Speaker 03:
It says specifically we argued that we did not, the photo VR did not texture map FSID onto a piece of a substantial equivalent to projecting the image data.

[00:03:12] Speaker 03:
And in that sense, basically Google has raised the argument that this was, Google has never actually said where the texture mapping happens.

[00:03:26] Speaker 01:
Well, but you never raised that as an issue.

[00:03:29] Speaker 01:
Your issue was what was the construction for full surround image data.

[00:03:34] Speaker 01:
You didn't address when texture matching occurs in terms of the structure of the technology.

[00:03:44] Speaker 01:
So you never said before the hearing that, oh, by the way, even if this is full surround image data, the texture matching has to occur at a particular point in time.

[00:03:56] Speaker 03:
What we argued there based upon the FSID was that there was no FSID being projected, if that's the version of texture mapping.

[00:04:10] Speaker 01:
Let's talk about your claim construction argument.

[00:04:14] Speaker 01:
You say that you don't like the board's claim construction because it's too vague.

[00:04:19] Speaker 01:
The board says that it took its construction straight out of the spec.

[00:04:23] Speaker 01:
This is one of those unusual cases where the board felt that there was an explicit definition in your written description.

[00:04:30] Speaker 01:
So what claim construction are you actually asking us to substitute?

[00:04:35] Speaker 03:
Your Honor, I think that at this point, if we could rewrite things, that's one thing.

[00:04:41] Speaker 03:
But the board basically shut down our arguments that either or.

[00:04:47] Speaker 03:
The argument is basically.

[00:04:48] Speaker 01:
Just give me a response.

[00:04:50] Speaker 01:
So what claim construction is appropriate?

[00:04:54] Speaker 03:
It would be appropriate to say that the sampling that's described in the first sentence of definition four

[00:05:03] Speaker 03:
has to be modified somehow.

[00:05:05] Speaker 03:
It just can't be any sampling.

[00:05:07] Speaker 01:
Well, the board did modify its construction to put the word single in there.

[00:05:12] Speaker 03:
No, but that's not what determines what is sample.

[00:05:17] Speaker 03:
In other words, for example, a sample could be one flat image.

[00:05:23] Speaker 03:
And we all agree that that's not FSID.

[00:05:25] Speaker 01:
OK, but I actually have to say, I don't think I've ever seen an appeal where there's an objection to claim construction

[00:05:31] Speaker 01:
where an alternative construction is not proposed.

[00:05:34] Speaker 03:
Your Honor, we did propose one.

[00:05:36] Speaker 03:
And basically, the board did not allow us to proceed with it because.

[00:05:42] Speaker 05:
Well, is that the one you're saying now should have been the correct one?

[00:05:47] Speaker 03:
I'm saying that a modified version of that should have been.

[00:05:50] Speaker 05:
Well, what's the modification?

[00:05:52] Speaker 03:
Modification is to take out the reference to definition 11, which was

[00:06:01] Speaker 03:
standard 3G computer, a 3G computer.

[00:06:05] Speaker 03:
Let me answer the question.

[00:06:06] Speaker 05:
I don't follow that at all.

[00:06:07] Speaker 05:
I mean this is the problem with most of your brief.

[00:06:11] Speaker 05:
It refers to a lot of things like...

[00:06:14] Speaker 05:
Definition 3 or definition 11.

[00:06:16] Speaker 03:
If I may address the issue.

[00:06:18] Speaker 05:
You were talking previously about sampling.

[00:06:21] Speaker 05:
Yes.

[00:06:21] Speaker 05:
And you think that has to be modified somehow.

[00:06:23] Speaker 05:
How does that have to be modified?

[00:06:25] Speaker 05:
It has to be modified with the last sentence of the... No, don't tell me, don't tell me it has to be modified with the last sentence of something that's not open.

[00:06:34] Speaker 05:
Tell me what you think it should say.

[00:06:37] Speaker 03:
It has to be sampling that enables the use of an independent interactive system.

[00:06:46] Speaker 03:
enables, not requiring the use of one, but enables the use.

[00:06:50] Speaker 03:
The use of one has to allow two things.

[00:06:53] Speaker 03:
One, it has to allow simultaneous viewing of the full surround image data that's been texture mapped onto this intermediate software object called the P surface, texture map P surface.

[00:07:10] Speaker 03:
And two, it has to be enough to make someone think

[00:07:14] Speaker 03:
that they're there, so they can pan around.

[00:07:16] Speaker 03:
What's enough?

[00:07:18] Speaker 03:
Enough is that it's the perspective correct, and there's no discontinuities.

[00:07:23] Speaker 05:
It sounds pretty indefinite to me.

[00:07:25] Speaker 03:
Well, what we're left with is that sampling, left as it is, has no limitation.

[00:07:33] Speaker 01:
Any sample.

[00:07:36] Speaker 01:
This is not the one that you originally proposed, right?

[00:07:41] Speaker 01:
This is something different.

[00:07:42] Speaker 01:
I'm not quite sure what it is, but it's different than what you originally proposed.

[00:07:46] Speaker 03:
No, it's essentially the same thing.

[00:07:48] Speaker 03:
There's a paraphrase from definition 10 and definition 11.

[00:07:53] Speaker 01:
So you were incorporating other definitions into this definition?

[00:07:59] Speaker 03:
Because definition four says it enables

[00:08:06] Speaker 03:
what's in definition 11.

[00:08:09] Speaker 01:
Okay, so what can we do with the language from the hearing transcript where the board asked you if you were walking away from that construction and you said that you were?

[00:08:21] Speaker 03:
Because the judge wouldn't, the board would not let me maintain definition 10 and had to say it was either or, I couldn't do one or the other.

[00:08:33] Speaker 03:
And the board later on suggested that it consider this.

[00:08:37] Speaker 03:
But the reality is that it considered one part of definition 10 and spent about six pages with Google, but never asked me about the same thing.

[00:08:50] Speaker 03:
I would have given a different answer, of course.

[00:08:52] Speaker 03:
But I also have talked about the importance of perspective correctness.

[00:08:57] Speaker 01:
It never asked you about application 10?

[00:09:01] Speaker 01:
No.

[00:09:01] Speaker 01:
I've got the transcript right here.

[00:09:03] Speaker 01:
And so the board said, I don't see how you get around it.

[00:09:08] Speaker 01:
It says you're trying to carve it out.

[00:09:10] Speaker 01:
That's your construction of full surround image data, and there are problems with it.

[00:09:14] Speaker 01:
And you say, OK, I guess, well, then the application's still of what the first two sentences.

[00:09:19] Speaker 01:
And he said the first two sentences is what the board had.

[00:09:22] Speaker 01:
And they come around to saying, so he said, so you drop your proposed interpretation, and you said yes.

[00:09:29] Speaker 03:
Yes, I was forced to, yes.

[00:09:31] Speaker 03:
You were forced to?

[00:09:33] Speaker 03:
Because he said that I couldn't maintain the, I couldn't give an intermediate one.

[00:09:38] Speaker 01:
All right, so what in the, show me in the spec, anything that supports your, I'm not even sure what the construction is, but the addition of these.

[00:09:47] Speaker 03:
As I said, hold up, the second,

[00:09:59] Speaker 03:
let's take what's going to mean is, if I look at A136 so on the left hand column, column 5

[00:10:31] Speaker 03:
This says full surround image data.

[00:10:35] Speaker 03:
Line 42.

[00:10:40] Speaker 03:
So it's testing full surround image data.

[00:10:44] Speaker 03:
It said that this full surround image data

[00:10:49] Speaker 05:
Isn't that exactly the construction the board adopted?

[00:10:54] Speaker 03:
No, it isn't.

[00:10:56] Speaker 05:
This data encodes explicitly or implicitly the association of a color value with a given direction, finishing that.

[00:11:04] Speaker 05:
That sentence is what the board's construction is.

[00:11:07] Speaker 03:
Right.

[00:11:08] Speaker 03:
But what that leaves open is what kind of sample we're talking about.

[00:11:14] Speaker 03:
You know, a sample of three rays in one direction, a single image, which doesn't really, isn't a force amount image, a single linear image.

[00:11:28] Speaker 05:
I mean, so you're relying on the next sentence in that that says full surround image data is useful in fields of entertainment.

[00:11:36] Speaker 05:
But that kind of exemplary stuff, we almost never take as a limiting construction, do we?

[00:11:41] Speaker 03:
No, but I'm not saying that that's limiting.

[00:11:44] Speaker 03:
It says it's useful because it enables.

[00:11:49] Speaker 03:
And almost enables is a qualification for de-sampling.

[00:11:57] Speaker 03:
And that's mainly an argument.

[00:11:59] Speaker 03:
That was something I was never able to argue because I was cut off.

[00:12:04] Speaker 03:
Is that part of your due process argument?

[00:12:06] Speaker 03:
Do you want to touch on that before you?

[00:12:09] Speaker 03:
Yes.

[00:12:10] Speaker 03:
The two parts of the due process argument, in a sense, I was cut off there.

[00:12:16] Speaker 03:
Actually, at the beginning of the hearing, it was said that the board's construction was still open.

[00:12:25] Speaker 03:
And then at this point, I was given either or.

[00:12:30] Speaker 05:
Let me back up a little bit, because I'm not sure I completely understand what your due process argument is.

[00:12:36] Speaker 05:
But when the board instituted, it put its claim construction forward, right?

[00:12:41] Speaker 05:
And you had a chance to respond in writing, didn't you?

[00:12:45] Speaker 05:
Yes.

[00:12:47] Speaker 05:
And you did.

[00:12:48] Speaker 05:
And then you had an opportunity to be heard.

[00:12:53] Speaker 03:
I think that what the hearing process is a combination of notice and fairness of hearing.

[00:13:01] Speaker 05:
Right, so you agree you had notice of the board's claim construction.

[00:13:05] Speaker 03:
That's correct.

[00:13:06] Speaker 05:
And you had an opportunity to respond in writing to that.

[00:13:10] Speaker 03:
Yes, once.

[00:13:12] Speaker 05:
Does due process require more than one opportunity to respond?

[00:13:16] Speaker 03:
No.

[00:13:16] Speaker 05:
So your objection then is on the hearing, but does the hearing have to allow you to make a further response or just to be heard on your arguments?

[00:13:28] Speaker 05:
I think there's a fairness issue there, and the question is how the questions are set out, because the board itself on its rehearing... Why is it unfair for the board to require you to put your objections to its claim of instruction in writing before the hearing?

[00:13:45] Speaker 03:
Well, we did object to it by saying that that sampling had to be qualified.

[00:13:51] Speaker 02:
Basically, the core of your two-page due process argument is that you disagree with a ruling by the board.

[00:13:58] Speaker 03:
No, Your Honor.

[00:13:59] Speaker 03:
The other aspect of it is the refusal to allow us on the so-called intermediate result.

[00:14:12] Speaker 05:
Google... Why didn't you put that intermediate result into your

[00:14:16] Speaker 05:
response to the board's proposed claim construction in the first place.

[00:14:18] Speaker 03:
Because it wasn't raised to that issue.

[00:14:20] Speaker 05:
Well, it's your obligation to respond to the board's proposed claim construction with what you think is the proper claim construction.

[00:14:27] Speaker 05:
You did.

[00:14:28] Speaker 05:
They disagreed with it.

[00:14:29] Speaker 05:
And then you waved any further challenge.

[00:14:31] Speaker 03:
Excuse me.

[00:14:31] Speaker 03:
I'm sorry.

[00:14:32] Speaker 03:
I'm mistaken.

[00:14:34] Speaker 03:
This intermediate business is another factor, not just the intermediate construction.

[00:14:43] Speaker 03:
I was speaking about the idea of where is the FSID and Google made its reply which is after we can make any other evidentiary connection.

[00:14:57] Speaker 03:
made an argument that it was maintained somehow.

[00:15:03] Speaker 03:
If actually one looks at the photo of the artist, nothing indicates it's maintained.

[00:15:08] Speaker 02:
Your approach seems to be codified or kernelized by page 15 of your library.

[00:15:21] Speaker 02:
on where you submit something called supplementation argument.

[00:15:25] Speaker 02:
Our rules don't provide for that.

[00:15:27] Speaker 02:
And yet, do you think it's a violation of due process for us not to consider it?

[00:15:33] Speaker 03:
The supplementation argument is the reply, isn't it?

[00:15:37] Speaker 02:
No, a reply is a reply to an opposition.

[00:15:42] Speaker 02:
You have a break, an opening break.

[00:15:45] Speaker 02:
You have a response.

[00:15:48] Speaker 02:
And then you have a reply to the response.

[00:15:51] Speaker 03:
You know, and I suppose I mislabeled it, it's the reply.

[00:15:55] Speaker 02:
And that's, I... You had a separate section of your reply break in which you raised new matters.

[00:16:06] Speaker 01:
I don't believe I do, but... Well, your time is completely up.

[00:16:12] Speaker 01:
We'll restore your five minutes for rebuttal and we'll give an extra five minutes.

[00:16:18] Speaker 01:
How do you want to divide that up?

[00:16:21] Speaker 01:
OK, we'll give it to Mr. Schott.

[00:16:26] Speaker 01:
Mr. Helm is happy not to stand up for too long.

[00:16:34] Speaker 00:
May it please the court, Pratik Shah for Apple eGoogle Inc.

[00:16:37] Speaker 00:
Grandi's argument against the board's construction of full surround image data and its argument against the board's finding that photo VR discloses texture mapping of full surround image data both come too late.

[00:16:50] Speaker 00:
Under established principles, Grandi was not permitted to change its claim construction or advance new distinctions of the prior art at the IPR hearing for the first time after

[00:17:02] Speaker 01:
I'm interested in the fact that we've got about three claim constructions here, maybe more, if Mr. Chiles has more than one.

[00:17:11] Speaker 01:
But Google didn't think that the board's claim construction was the correct claim construction, at least not initially, right?

[00:17:17] Speaker 00:
Your Honor, that's true in the sense that Google also provided other language that the board rejected.

[00:17:24] Speaker 00:
Google does not press those on appeal, because we win on both anticipation and obviousness grounds.

[00:17:32] Speaker 00:
the construction that the board adopted, and we agree with the construction that the board adopted to the extent it incorporated verbatim, essentially, it added the word single, but otherwise incorporated verbatim the definition from the specification.

[00:17:46] Speaker 01:
But why is it that Google initially thought that additional language was necessary to clarify the construction?

[00:17:52] Speaker 00:
It was just out of clarification to give some content to full surround image data.

[00:17:56] Speaker 00:
We don't think it actually would have materially changed the scope of the claims.

[00:17:59] Speaker 00:
Our anticipation arguments, for example, remain identical under both the language that we proffered, the omnidirectional language that we originally proffered.

[00:18:09] Speaker 00:
and the current construction.

[00:18:11] Speaker 00:
It was more out of full surround image data to give some context to what that is.

[00:18:16] Speaker 00:
We suggested the omnidirectional language initially.

[00:18:19] Speaker 00:
The board said, no, we're going to go with the verbatim definition from the specification.

[00:18:23] Speaker 00:
We agree with that.

[00:18:24] Speaker 00:
We don't think that that materially changes anything.

[00:18:27] Speaker 00:
We're happy to go with the board's definition.

[00:18:29] Speaker 00:
And we made our anticipation argument.

[00:18:31] Speaker 00:
Of course, the board offered its initial construction in its institution decision.

[00:18:35] Speaker 00:
We then made our anticipation arguments based upon the board's construction.

[00:18:40] Speaker 00:
And we made alternative arguments, but we don't need to press those.

[00:18:45] Speaker 00:
We're happy to stick with the board's construction.

[00:18:47] Speaker 00:
And that construction, Your Honor, even putting aside the waiver arguments, the fact that it was changed midstream during the hearing, and in fact,

[00:18:55] Speaker 00:
One, that Grand I's counsel, one, both conceded that the proposed construction that he had at the hearing was incorrect, and two, that he would ultimately give up any different construction when pressed by the board.

[00:19:07] Speaker 00:
Even putting all of that aside, the board went above and beyond any sort of due process that it owed to Grand I and still addressed the third modified construction that Grand I had offered

[00:19:19] Speaker 00:
on the merits in its decision and said, no, that's asking us to engraft what's essentially an embodiment, a preferred embodiment, this independent viewing system limitation that he's talked about today, that that's essentially an embodiment and under well-established precedent of this court, you don't read preferred embodiments into the claim limitations.

[00:19:40] Speaker 00:
And we think even if you got to the merits, which we don't think you need to, that the board was completely correct in that under well-established circuit precedent and that that construction should not be disturbed.

[00:19:53] Speaker 01:
respond to the argument made by the other side, at least appears to be made in the briefs, that the board's construction, which is a little hard for me, frankly, to wrap my head around completely, but the board's construction is vague and the way the board actually applied it is to adopt your whole view omni-directional

[00:20:15] Speaker 01:
language, but without explicitly saying so.

[00:20:19] Speaker 00:
Sure.

[00:20:19] Speaker 00:
So a couple responses there, and I'll get to the merits, but first of all, the vague argument, the vagueness argument, that's doubly waived.

[00:20:28] Speaker 00:
It was not only raised in their briefs, it was not raised in the hearing, it was not raised, as the board noted, that argument was not even raised until the rehearing stage.

[00:20:39] Speaker 00:
So that's doubly waived.

[00:20:41] Speaker 00:
But even if we get past the waiver on the merits, Your Honor, the claim construction tracks the exact language from Grandi's own patent.

[00:20:50] Speaker 00:
And that language itself, we think, is self-contained.

[00:20:54] Speaker 00:
It's fine.

[00:20:55] Speaker 00:
Now, the way in which they would help... What does it mean exactly, though?

[00:20:58] Speaker 01:
That's my problem.

[00:20:59] Speaker 01:
I've seen a lot of written descriptions that don't make a lot of sense until you parse it all out.

[00:21:04] Speaker 00:
So I think what it means is you sample enough of the real world images.

[00:21:09] Speaker 00:
Essentially what's happening here is you're taking a camera, you're taking images of any scene, like this room.

[00:21:15] Speaker 00:
You have a camera that pans 360 degrees, takes enough images so that when you render the image on a computer, that you can get a 3D visual model.

[00:21:27] Speaker 00:
And that's the texture mapping.

[00:21:29] Speaker 00:
You take these two dimensional images, which are taken from the camera, let's say it takes

[00:21:33] Speaker 00:
you know, 25 separate photos as it pans around.

[00:21:38] Speaker 00:
You then map those 25 two-dimensional images onto a three-dimensional spherical type object in the computer.

[00:21:45] Speaker 05:
So that's the second time you've used the word 3D and that you think that it's used to make this 3D

[00:21:52] Speaker 05:
projection, but that's exactly the part of the claim construction your friend wanted to add in, and the board refused to add in the part that it's sufficient to make a 3D representation.

[00:22:04] Speaker 05:
So aren't you defining the claim in the same way your colleague wants to?

[00:22:08] Speaker 00:
No, Your Honor.

[00:22:09] Speaker 00:
I don't want to speak for Mr. Child, but as he himself said, the 3D graphics system, he himself called that a flawed interpretation.

[00:22:20] Speaker 00:
That's why he tried to change

[00:22:22] Speaker 00:
the interpretation at the hearing.

[00:22:24] Speaker 00:
He said that's from a different case.

[00:22:25] Speaker 00:
They had a different case.

[00:22:26] Speaker 00:
That's not an issue here where they had that.

[00:22:29] Speaker 00:
He submitted that that actually was a preferred embodiment, and that is not part of it.

[00:22:33] Speaker 00:
So everyone here agrees that you add the standard 3D graphics viewing system.

[00:22:38] Speaker 00:
I'm just trying to describe in a practical sense how this invention works.

[00:22:43] Speaker 00:
So the sampling question is... That's what the full surround image data is for.

[00:22:49] Speaker 05:
That's not what it is.

[00:22:50] Speaker 00:
That's right.

[00:22:51] Speaker 00:
So the fools around image data are those pictures that are then mapped onto this visual model that you see on the computer screen.

[00:23:00] Speaker 00:
Now, their argument, as I understand it, again, it wasn't made below, so I'm trying to gather it from their briefs on their vagueness point is, well, you don't know

[00:23:08] Speaker 00:
how many pictures you need to take to do that.

[00:23:13] Speaker 00:
But we would think it's implicit in the definition of full surround image data that the user takes enough photos so that you can accomplish the objective of the invention, which is actually to map

[00:23:25] Speaker 00:
the images onto a real world to create a real world image.

[00:23:30] Speaker 05:
Presumably, a person of ordinary skill would either understand that it's enough pictures to accomplish this, or if no person of ordinary skill would understand that, it would be indefinite.

[00:23:40] Speaker 00:
Yes, Your Honor.

[00:23:41] Speaker 00:
I think that's exactly right.

[00:23:42] Speaker 00:
A person of ordinary skill would understand you have to take enough images to actually render the image in the real world.

[00:23:48] Speaker 00:
Anything more than that simply goes to resolution.

[00:23:51] Speaker 00:
If you take more pictures, more samples, you're going to get better resolution.

[00:23:54] Speaker 00:
And so we think it's completely implicit in the claims, and the claims are in no way vague.

[00:23:59] Speaker 01:
So the prior art, and I know you're going to argue waiver, so let's put that aside.

[00:24:04] Speaker 01:
So the question is, is the prior art taking full surround image data and texture mapping that, or does the prior art actually texture map slices

[00:24:19] Speaker 01:
and then overlay them, which would be different than full surround image data.

[00:24:23] Speaker 00:
Your Honor, the photo VR does disclose texture mapping of full surround image data.

[00:24:29] Speaker 00:
Again, I'm going to put aside all the waiver arguments and just address the merits here.

[00:24:33] Speaker 00:
And so the way

[00:24:35] Speaker 00:
that PhotoVR describes it.

[00:24:37] Speaker 00:
It describes the texture mapping as part and parcel of an approach called a modified ray casting.

[00:24:43] Speaker 00:
Now the modified ray casting approach at PhotoVR essentially has two steps.

[00:24:48] Speaker 00:
The first step is you select a color from the image that is then texture mapped

[00:24:54] Speaker 00:
into the rendering, right?

[00:24:57] Speaker 00:
That color selection step in a traditional ray casting is easy.

[00:25:02] Speaker 00:
You just have a single image, you use that color, and then you map it onto the rendered image.

[00:25:08] Speaker 00:
In photo VR, they say to the extent some images might be overlapping,

[00:25:13] Speaker 00:
To pick that single color, you have to average the two colors of the overlapped image.

[00:25:18] Speaker 00:
So if you have two overlapped images and they have slightly different coloration, it averages those colors.

[00:25:23] Speaker 00:
So that's the modified of the modified ray casting.

[00:25:26] Speaker 00:
So you average the color, and then you project that average color.

[00:25:30] Speaker 00:
onto the polygon.

[00:25:31] Speaker 00:
That's the texture mapping.

[00:25:33] Speaker 00:
So it's two steps.

[00:25:34] Speaker 00:
Modified raycasting is really two steps.

[00:25:36] Speaker 00:
You do color averaging to the extent you have overlapping images.

[00:25:40] Speaker 00:
And then you map that color average onto the real world polygon.

[00:25:44] Speaker 00:
Now, at the time that the color is averaged, you have full surround image data.

[00:25:52] Speaker 00:
And all you're then doing is applying the image onto the polygon, which is what texture mapping is.

[00:25:57] Speaker 00:
So even if you took it on their merits, their argument that you're not texture mapping.

[00:26:02] Speaker 05:
Is full surround image data a term of art in the field, or is it an invented term in this patent?

[00:26:08] Speaker 00:
Your Honor, it's a term of art in the sense that this technology was known before this patent.

[00:26:16] Speaker 00:
I think this patent provides a coined definition of full surround image data, but I think experts in the field would know what you're getting at if they read the prior argument.

[00:26:26] Speaker 00:
Full surround has been used for an awfully long time, hasn't it?

[00:26:29] Speaker 02:
I'm sorry, Your Honor.

[00:26:29] Speaker 02:
I said full surround has been used for an awfully long time.

[00:26:32] Speaker 00:
Yes, Your Honor.

[00:26:34] Speaker 00:
Both the QuickTime VR, Photo VR, all predate the patents here.

[00:26:38] Speaker 00:
And just, Judge O'Malley, to close the loop on that,

[00:26:44] Speaker 00:
the texture mapping of full surround image data, the color averaging.

[00:26:48] Speaker 00:
If there's any doubt about substantial evidence, Grandi argues, oh, well, this was just Google's counsel coming up with that this was a pre-processing step that you had the color averaging first.

[00:26:59] Speaker 00:
Well, you don't have to look any further than Grandi's own expert declaration, which appears at JA 1888, paragraph 47, where he calls photo VRs

[00:27:10] Speaker 00:
Ray casting a quote pre-processing step.

[00:27:13] Speaker 00:
So Google's counsel during that hearing didn't just make that up out of thin air.

[00:27:17] Speaker 00:
The exact phrase comes from a grand eyes experts declaration.

[00:27:23] Speaker 00:
And of course as the board found it's a fair reading of photo VR that you read modified ray casting to happen the two steps there are.

[00:27:31] Speaker 00:
There's certainly substantial evidence to support the board's finding particularly under the circumstances here when the argument wasn't even raised until

[00:27:40] Speaker 00:
the oral argument.

[00:27:41] Speaker 00:
So the fact that Google's expert may not have specifically addressed this only comes from the fact that the argument wasn't made until the hearing itself.

[00:27:51] Speaker 01:
I want to address one thing before you sit down.

[00:27:56] Speaker 01:
But I was troubled by the fact that in response to the argument that the board didn't consider certain arguments or didn't expressly consider certain arguments,

[00:28:08] Speaker 01:
You fell back on the presumption of regularity that generally attaches to agency actions.

[00:28:16] Speaker 01:
I'm putting aside the fact that we've got an adjudicative body here.

[00:28:21] Speaker 01:
The presumption of regularity, it doesn't have anything to do with a substantive consideration of things.

[00:28:26] Speaker 01:
It has to do with mailings and those kinds of technical.

[00:28:30] Speaker 01:
I mean, those cases that you cite don't stand.

[00:28:32] Speaker 00:
It was only meant to be an analogy that

[00:28:35] Speaker 00:
We should take the board at its word that it actually applied the claim construction that it found.

[00:28:40] Speaker 00:
There is nothing.

[00:28:41] Speaker 00:
There is nothing in the opinions at all to suggest that the board was offering one claim construction, but sub-solentio applying a claim construction that it expressly rejected.

[00:28:54] Speaker 00:
I mean, there's simply no basis in any of the opinions that they cite to suggest that that's what the board was doing.

[00:29:02] Speaker 00:
I've never seen a court say that we're going to assume that a board or an adjudicative body was doing something other than what it says in the words and its opinions.

[00:29:13] Speaker 00:
There's nothing in the words of its opinions that suggests it's applying anything other than the claim construction that it adopted.

[00:29:20] Speaker 01:
And so you can see that this has nothing to do with the

[00:29:24] Speaker 01:
with the ad law concept of presumption of irregularity.

[00:29:27] Speaker 00:
Right, Your Honor.

[00:29:27] Speaker 00:
It was just a very loose analogy.

[00:29:30] Speaker 00:
We shouldn't assume that the board is doing something nefarious beyond what it says in its opinion, or improper beyond what it says in its opinion.

[00:29:38] Speaker 00:
So I think that's all the limited point was.

[00:29:41] Speaker 02:
Well, the record is the record.

[00:29:42] Speaker 00:
Exactly.

[00:29:43] Speaker 00:
The record is the record.

[00:29:44] Speaker 00:
It did what it said in its opinion.

[00:29:46] Speaker 00:
It's clearly applied its claim construction.

[00:29:48] Speaker 00:
It rejected Google's proffered claim construction in the institution decision.

[00:29:53] Speaker 00:
It then applied the claim construction that it did.

[00:29:56] Speaker 00:
It found it anticipated per Google's arguments.

[00:30:00] Speaker 00:
And I just don't think that... I know we're not...

[00:30:02] Speaker 01:
supposed to really care about the allegedly infringing technology.

[00:30:07] Speaker 01:
But what applications does this technology have?

[00:30:11] Speaker 00:
There is another, for example, another district court litigation right now, which alleges infringement to certain Google features, such as the Street View feature, which some in this room may have used.

[00:30:25] Speaker 00:
where you can pan around and see, for example, look at your house and your block.

[00:30:31] Speaker 00:
So I think that's the type of technology that would be at issue, for example, in that separate district court infringement litigation.

[00:30:41] Speaker 01:
Is that a parallel litigation to this?

[00:30:43] Speaker 01:
In other words, it's the same patents?

[00:30:44] Speaker 00:
It's the same patents.

[00:30:47] Speaker 00:
My understanding is there are also other patents and claims involved in that litigation.

[00:30:50] Speaker 00:
So the invalidity determination, if it's affirmed in this case, will substantially, at a minimum, substantially narrow that district court litigation because there is a significant overlap in the claims in both cases.

[00:31:05] Speaker 00:
Okay.

[00:31:05] Speaker 00:
Self-driving card?

[00:31:08] Speaker 00:
Not that I know of.

[00:31:09] Speaker 00:
I don't think that would be implicated by these patents.

[00:31:12] Speaker 00:
Okay.

[00:31:12] Speaker 00:
There are no further questions, right?

[00:31:20] Speaker 04:
Thank you, your honor, and may it please the court.

[00:31:22] Speaker 04:
I think the bounds of the due process argument have been pretty well laid out.

[00:31:26] Speaker 04:
I'd just like to point out once again that the issues were first crystallized in the petition when the board issued its institution decision that gave clear notice of what was going on in the case.

[00:31:43] Speaker 04:
There were a number of opportunities for Grand Eye to respond.

[00:31:47] Speaker 04:
Some of them it took, some of them it didn't.

[00:31:50] Speaker 04:
For example, it did not give a preliminary response.

[00:31:54] Speaker 04:
It did not address claim construction.

[00:31:56] Speaker 04:
It declined to do so.

[00:31:58] Speaker 01:
You argue that one of the opportunities to sort of make your claim construction argument more fulsome would be at the hearing.

[00:32:07] Speaker 01:
But the board takes a pretty strict view, does it not, of whether you can offer anything new at the hearing?

[00:32:14] Speaker 04:
Well, I think the board was skeptical of whether or not it could be raised at that point.

[00:32:19] Speaker 04:
Because at that point, if it's raised without notice, it prejudices the other side.

[00:32:23] Speaker 04:
It prejudices Google, is I think what the board was saying.

[00:32:27] Speaker 01:
Well, they're not skeptical.

[00:32:28] Speaker 01:
I mean, they take a policy position across the board that you can't raise anything new at the hearing, right?

[00:32:33] Speaker 04:
One of the judges took a fairly strong view, or at least pushed back fairly strongly, that it shouldn't be raised at that point in time.

[00:32:43] Speaker 04:
That doesn't mean that you can't.

[00:32:46] Speaker 04:
Maybe it's futile to do so.

[00:32:48] Speaker 04:
But you can maintain your position.

[00:32:50] Speaker 04:
You don't have to give it up at that point.

[00:32:52] Speaker 04:
And if the judge is wrong, the judge is wrong.

[00:32:54] Speaker 04:
That's an issue that you could appeal.

[00:32:55] Speaker 04:
But when you say, OK, I'm just going to waive my position, I'm not going to pursue that any longer,

[00:33:01] Speaker 04:
That's a different issue.

[00:33:03] Speaker 01:
But I'm not talking about these judges.

[00:33:06] Speaker 01:
This is not the first rodeo.

[00:33:10] Speaker 01:
We've seen a lot of cases coming out of the P-TECH.

[00:33:12] Speaker 01:
And they're more.

[00:33:13] Speaker 01:
Yes, and a lot more are coming.

[00:33:15] Speaker 01:
And they all take the position that you can't raise anything new at the hearing.

[00:33:19] Speaker 01:
strict requirements.

[00:33:20] Speaker 01:
Is that not right?

[00:33:21] Speaker 04:
That's correct.

[00:33:22] Speaker 04:
Actually that's in line with the rules.

[00:33:23] Speaker 04:
The rules allow the submission of evidence.

[00:33:26] Speaker 04:
So the evidence comes in during the initial phases and by the time you get to the hearing it's supposed to be pretty much closed.

[00:33:33] Speaker 04:
And so when you start taking new positions that means the problem with that is that we have a one-year time period that we're supposed to complete this in and if you're starting to raise new issues all of a sudden at the hearing at the very end it makes it very difficult.

[00:33:45] Speaker 04:
Yeah, the real question seems to be

[00:33:47] Speaker 04:
What we're seeing is whether it was new.

[00:33:50] Speaker 04:
If it's new, it's pretty clear.

[00:33:53] Speaker 04:
That's correct.

[00:33:53] Speaker 04:
So it was, I mean, definitely it was a new argument because the initial construction that was proffered had to do with folding in two different, it read in two different subsidiary definitions, what they call subsidiary definitions, I believe.

[00:34:07] Speaker 04:
And then at the hearing, the judge said, this is, I believe the quote was something along the lines of, this isn't even close to what it says in the specification.

[00:34:14] Speaker 04:
The specification gives us a definition for that term.

[00:34:17] Speaker 04:
Why don't we just use that?

[00:34:18] Speaker 04:
And when they tried to walk that back, the judge said,

[00:34:21] Speaker 04:
well, you can't pick and choose between your initial construction.

[00:34:26] Speaker 04:
You should have done it then.

[00:34:27] Speaker 04:
And I think that's fair.

[00:34:29] Speaker 04:
You get more chance.

[00:34:29] Speaker 01:
Right.

[00:34:29] Speaker 01:
They tried to walk it back to only incorporating one other limitation rather than two.

[00:34:34] Speaker 04:
That's right.

[00:34:35] Speaker 04:
And so I think the judges, as was mentioned, I think the judges did actually consider whether or not that was proper to further incorporate other things based upon

[00:34:49] Speaker 04:
as in the definition there's a definition and then there's a here's what you can use it for based upon the here's what you can use it for section of that of that portion of the specification and they said no we don't think we think that's just an example of what the types of things you can use it for.

[00:35:04] Speaker 01:
Argument is that he was essentially forced to give up on his claim construction.

[00:35:10] Speaker 01:
I mean, you would agree, wouldn't you, that at some point a judicial officer could be so aggressive with respect to not allowing a development of an argument that there might be a due process violation.

[00:35:23] Speaker 04:
I think that's not the case here, but absolutely there are situations you can imagine.

[00:35:29] Speaker 04:
I think we could think of hypotheticals where you could have a due process problem, but that's not this case.

[00:35:35] Speaker 02:
But that's where you make an offer for the record.

[00:35:37] Speaker 04:
That's correct.

[00:35:37] Speaker 04:
That's correct.

[00:35:39] Speaker 04:
That's absolutely right.

[00:35:40] Speaker 04:
Due process just like anything else.

[00:35:42] Speaker 04:
Due process can be waived.

[00:35:42] Speaker 04:
This type of due process can be waived.

[00:35:44] Speaker 04:
And so if you waive it, then you've waived it.

[00:35:46] Speaker 04:
And certainly I think that's what happened in this case.

[00:35:50] Speaker 04:
I don't think that the judges did anything incorrect in this case, but I certainly think that in this case it was waived as follows.

[00:35:56] Speaker 01:
Do you have a view of exactly what that language from the specification means with respect to the claim construction?

[00:36:03] Speaker 04:
We did not offer any view on that.

[00:36:06] Speaker 04:
I will just simply note that it appears that the specification has a definition and the claim language is the claim language.

[00:36:14] Speaker 04:
We, of course, think the board did it correctly, but beyond that, we don't offer any opinion in this case.

[00:36:20] Speaker 04:
Thank you very much, Your Honor.

[00:36:21] Speaker 01:
Mr. Chau, you have five minutes for rebuttal.

[00:36:25] Speaker 03:
Yes, I'd like to say that with respect to the faux surround, there's no argument that it was a term of art.

[00:36:33] Speaker 03:
And in fact, if one thinks about faux surround, you hear about it in OmniMax or other things like that.

[00:36:40] Speaker 03:
It's not necessarily 360 by 360.

[00:36:43] Speaker 03:
There's something in between.

[00:36:45] Speaker 03:
So the question is, if you take that view, it remains what would constitute full surrender.

[00:36:53] Speaker 01:
Well, the patents themselves describe a method of using two pictures with fisheye lenses, right?

[00:37:02] Speaker 03:
Yes.

[00:37:03] Speaker 01:
And how is that different?

[00:37:06] Speaker 01:
I mean, I don't understand how that's different from what the prior art discloses.

[00:37:09] Speaker 03:
No.

[00:37:12] Speaker 03:
The board made a determination that because we said that what OXO carefully determined was a way to combine two full surround image data to make one full surround image data.

[00:37:26] Speaker 03:
that because I admitted there always will be some tolerance, but the tolerance doesn't make any difference.

[00:37:34] Speaker 03:
Whereas in photo VR, it says explicitly, if you look at the whole document starting at A1249, which I commend to reading because this is the only evidence that is really given by

[00:37:54] Speaker 03:
by Google.

[00:37:56] Speaker 01:
Well, the prior art.

[00:37:58] Speaker 01:
I mean, what more evidence do they have to give?

[00:38:01] Speaker 03:
We can read the prior art.

[00:38:02] Speaker 03:
Yes, but the reading of this is that they focus on the assumptions on page 1250, and they say that because it's

[00:38:15] Speaker 03:
they consider, the photo VR consider these viewpoints to all be in one place, even though they know they are not.

[00:38:24] Speaker 03:
The collection is not in one place.

[00:38:26] Speaker 03:
Now, if it's somewhat true for the two fish eyes,

[00:38:32] Speaker 03:
Each fish eye will always have the same focal point or viewpoint.

[00:38:37] Speaker 03:
And then combining the two is relatively easy.

[00:38:40] Speaker 03:
Just make sure that it's a distinct view of the world.

[00:38:44] Speaker 03:
What happens in photo VR is you're looking at 94 different worlds at different times.

[00:38:49] Speaker 03:
And the overlap means that you're even looking at the same object from a different angle, so it's actually a different view.

[00:38:56] Speaker 03:
That doesn't happen.

[00:38:57] Speaker 03:
in the Oxlopan.

[00:38:59] Speaker 03:
But the report simply said that because there's tolerance, therefore, these were not meaningfully different.

[00:39:09] Speaker 03:
And there's tons of argument that goes to this.

[00:39:14] Speaker 03:
My argument due process, which actually addresses some of what Kuhu's council says, is that they were the ones who introduced the idea that there was some intermediate

[00:39:28] Speaker 03:
averaging that would constitute the full surround image data.

[00:39:34] Speaker 03:
And they raised that for the first time in a reply saying that this information might be maintained.

[00:39:40] Speaker 03:
There's nothing that shows it's maintained anywhere.

[00:39:44] Speaker 03:
Our expert testified that there is no such maintenance.

[00:39:48] Speaker 03:
Yet.

[00:39:49] Speaker 01:
But that's not raising the argument.

[00:39:53] Speaker 01:
I mean, I don't read that reply

[00:39:58] Speaker 01:
to contain the argument that you say was made.

[00:40:03] Speaker 01:
I mean, I see it for the first time raised by you at the hearing.

[00:40:07] Speaker 03:
No, the board asked me about intermediate data.

[00:40:15] Speaker 03:
So in a sense, they raised that.

[00:40:17] Speaker 03:
They took Google's idea of averaging as being the first round image data.

[00:40:23] Speaker 03:
and then asked me about it, and I said it wasn't.

[00:40:27] Speaker 03:
Then they said that, well, if the final result, can it be considered for image data?

[00:40:34] Speaker 03:
I said yes, but for the fact that it was not acquired from the same viewpoint.

[00:40:39] Speaker 03:
So basically, what happens is that at the

[00:40:46] Speaker 05:
Just before you go on, let me clarify.

[00:40:49] Speaker 05:
So you're no longer talking about a due process violation with regard to the claim construction.

[00:40:54] Speaker 05:
You're talking with the due process violation about how somehow the way they got to the substantial evidence to support that there is texture mapping relied on a new argument that you didn't have a chance to respond to.

[00:41:08] Speaker 03:
It goes beyond.

[00:41:09] Speaker 03:
It's the conduct of the hearing.

[00:41:10] Speaker 05:
What I'm really trying to figure out is whether you're giving up on the claim construction due process argument.

[00:41:17] Speaker 03:
Yes, I will do that.

[00:41:21] Speaker 03:
And the construction is actually saying that the construction... Now do you feel like I bullied you into doing that?

[00:41:28] Speaker 03:
No, no, not another one.

[00:41:32] Speaker 03:
I would say that just to simplify this, our argument on the plane construction is purely as a matter of law saying that sample without something else

[00:41:42] Speaker 03:
is not adequate to be a construction.

[00:41:46] Speaker 03:
It needs some other kind of qualification.

[00:41:49] Speaker 03:
And I think the board's substantial use the whole room thing or the whole view thing.

[00:41:58] Speaker 01:
So why does the other due process argument, though, really matter if the board didn't even rely on that alternative

[00:42:06] Speaker 01:
view of the world in reaching its conclusion.

[00:42:09] Speaker 03:
No, I think that the other two-process argument is that Google raises intermediate results, and then the board

[00:42:22] Speaker 03:
question me about it, and then question, actually help Google decide that, well, is this texture mapped?

[00:42:30] Speaker 03:
Is this not texture mapped?

[00:42:31] Speaker 03:
And if you read Google's rebuttal, this is all attorney testimony.

[00:42:37] Speaker 03:
So we're, and if you look at this- Well, they cite to your own expert.

[00:42:42] Speaker 03:
They cite to me, if we read the rest of it, our expert actually vehemently says that there's no texture mapping of the intermediate image.

[00:42:53] Speaker 05:
I don't see how this is a due process argument.

[00:42:55] Speaker 05:
It seems to me you're quibbling with whether the board's reading of the evidence constitutes substantial evidence.

[00:43:02] Speaker 05:
But it doesn't sound to me like it's a due process argument.

[00:43:05] Speaker 03:
It did prevent us from rebutting.

[00:43:08] Speaker 03:
So we said that this is part of the re-hearing.

[00:43:12] Speaker 03:
They raised the issue and then said that we were the first one to raise the issue.

[00:43:17] Speaker 03:
And Google was privileged to argue that there was some texture mapping after this intermediate result.

[00:43:25] Speaker 05:
Based upon the art that was already in the record, there were just new arguments about stuff that was in the record.

[00:43:32] Speaker 05:
They didn't try to inject new evidence or anything like that.

[00:43:37] Speaker 03:
Well, I think they did, but it's not because he's testifying.

[00:43:44] Speaker 03:
If you look at the Google's counsel.

[00:43:48] Speaker 05:
Is the Google's counsel just arguing based upon what the record evidence shows?

[00:43:52] Speaker 03:
I didn't see anything in the record evidence.

[00:43:55] Speaker 05:
But again, that results down to a disagreement over whether the record shows what you think it does.

[00:44:00] Speaker 05:
And that would review for substantial evidence.

[00:44:02] Speaker 03:
I think if you read the record, it doesn't talk about the record.

[00:44:08] Speaker 03:
It talks about, you know, is there such a texture mapping?

[00:44:13] Speaker 01:
Okay.

[00:44:13] Speaker 01:
I think you've passed your time.

[00:44:14] Speaker 01:
Thank you.

[00:44:16] Speaker 01:
The case will be submitted.