[00:00:21] Speaker 03: Okay, the next case is number 15, 1832, NRA CSB System International, Incorporated. [00:00:29] Speaker 03: Mr. Koch. [00:00:34] Speaker 00: Good morning. [00:00:35] Speaker 00: May it please the court? [00:00:36] Speaker 00: My name is Bruce Cook on behalf of Appellant CSB System International. [00:00:40] Speaker 00: This is an appeal from a re-examination where they found the, affirmed the ability findings. [00:00:47] Speaker 00: We believe that there are at least three main legal errors committed by the PTO [00:00:51] Speaker 00: in its 102-103 invalidity analysis. [00:00:54] Speaker 00: First, we believe they failed to consider that this is a system claim to a specific type of architecture. [00:01:02] Speaker 00: Two, their claim constructions are not supported by evidence and, in fact, contradicted by the contemporaneous evidence of the prior art itself. [00:01:12] Speaker 00: And three, the use of the broadest reasonable interpretation standard instead of the Phillips standard [00:01:18] Speaker 00: since the underlying patent expired during the re-examination. [00:01:23] Speaker 00: Now turning to the first main legal error, this claim won what's a specific system claim to integrate an EDP and telephone system to allow the customer service representative to receive the customer information at his computer [00:01:44] Speaker 00: by when the call arrives. [00:01:46] Speaker 00: Now, this is a specific architecture listed in claim one of the patent. [00:01:52] Speaker 00: It has a server and a client. [00:01:55] Speaker 00: And a person of ordinary skill in the art viewing this would see that this is clearly a client-server architecture. [00:02:03] Speaker 00: So the relevant question for 102 and 103 is, does the prior art references alone or in combination teach this specific architecture [00:02:14] Speaker 00: set forth in claim one, the specific client server architecture. [00:02:18] Speaker 00: Now, looking at the prior references, Gersahani and the coordinator, they have a host to a terminal system. [00:02:29] Speaker 00: A person with ordinary skill in the art in 1993 would clearly see this as a host terminal architecture, a different and discreet architecture than described in claim one of the patent. [00:02:42] Speaker 02: What is it that you think in claim one limits this to a client's server architecture? [00:02:49] Speaker 00: Sure. [00:02:49] Speaker 00: It's a good question. [00:02:50] Speaker 00: The fact that there's a server and personal computers receiving and sending data records, as this court recently reiterated in the Apple versus Samsung case, that the mention of a server to a person of ordinary skill in the art [00:03:08] Speaker 00: would signal a client-server relationship. [00:03:12] Speaker 00: It was citing the Apple versus Motorola case, 757, Fed 3rd, 304. [00:03:20] Speaker 00: So to a person of ordinary skill in the art scene, claim one, they would see a client-server architecture. [00:03:27] Speaker 00: Now, when you're looking at the prior art of Gersahani and Cole Courtney, as I said, it's a host terminal architecture. [00:03:36] Speaker 00: And how do we know that? [00:03:37] Speaker 00: The prior art itself states that. [00:03:40] Speaker 00: Gursahani clearly has many passages stating that in this invention is a host computer communicating through screen images to a terminal, a functioning terminal. [00:03:55] Speaker 02: But what evidence did you present that the terminals in the prior art reference can't be considered personal computers? [00:04:06] Speaker 00: Because if you look at Gersahani itself, the prior author himself refers to these workstations converted into terminals as terminals. [00:04:17] Speaker 00: He states that the flow information is to the terminal, from the terminal. [00:04:23] Speaker 00: And he states that in the invention, the host computer must interface with a terminal, with a 3270 or 5280 terminal. [00:04:34] Speaker 00: So in his mind, [00:04:36] Speaker 00: And he states it explicitly, this is a host terminal architecture. [00:04:42] Speaker 00: It shows that he does not believe that he was in possession of a client server architecture for this integrated EDP and telephone system. [00:04:54] Speaker 00: So I think that's the best evidence. [00:04:56] Speaker 02: This claim articulates personal computers, and then it articulates a LAN server. [00:05:03] Speaker 02: If the terminals in the prior art reference perform all the functions that the claim requires of personal computers, and the host performs all the functions as the LAN server as only limited in the claims, because of course we're not going to import functions or objectives from the specification into the claim. [00:05:22] Speaker 02: So if the disclosure in the prior art reference has a terminal computer that can, for example, send and receive and all of that other stuff, [00:05:31] Speaker 02: that is required by this claim, then why is it not anticipatory? [00:05:35] Speaker 02: Why does the simple context of host versus client server matter if all of the elements of the claim are identically performed by the structures disclosed in the prior art reference? [00:05:49] Speaker 00: I'm glad you asked that question. [00:05:51] Speaker 00: I believe the answer is one, a person of ordinary skill in the art in 1993 [00:05:56] Speaker 00: would believe that these are not the same architecture. [00:05:59] Speaker 02: You say that, but I can't find any evidence in the record that you submitted that would have made it implausible, improper, or even worse. [00:06:09] Speaker 02: I've got to give substantial evidence to the board's findings. [00:06:11] Speaker 02: So what evidence of record is there other than your personal statement as attorney argument to establish that? [00:06:18] Speaker 00: Sure. [00:06:18] Speaker 00: As I said, the statements by Mr. Gersahani himself in his patent, where he refers to these terminals as terminals, [00:06:26] Speaker 02: And also if you look... He just refers from his terminals, but he also discusses later on that they're capable of sending and receiving. [00:06:31] Speaker 03: He also has at column 16, he says they have a multitasking operating system. [00:06:37] Speaker 00: That's true. [00:06:38] Speaker 00: But when you look at the relevant legal question is, in the system, what is the nature of that component? [00:06:45] Speaker 02: No, I don't think it's what's the nature of that component. [00:06:47] Speaker 02: I think the question is, does that component meet all of the elements of the claim? [00:06:52] Speaker 02: We don't do some general analysis, right? [00:06:56] Speaker 02: We've got a claim. [00:06:57] Speaker 02: The claim articulates certain functions a personal computer must perform, certain structures it must have, whatever. [00:07:05] Speaker 02: And I don't think that what I'm having trouble seeing is how the prior art doesn't actually meet each of these limitations, even though it calls itself a terminal, rather than a personal computer. [00:07:17] Speaker 02: And your answer, as I understand it, is, well, what of skill in the art? [00:07:19] Speaker 02: We understand these things to be different. [00:07:21] Speaker 02: But the fact that they have differences that are irrelevant to the claim limitations doesn't seem to me to be fair. [00:07:30] Speaker 00: If you look at the glossary of the call coordinator, if you look at 4962 and 4963, you'll see that that has discrete definitions for host computer versus server. [00:07:43] Speaker 00: So at that time, a person would not believe that a host computer was equivalent to a server. [00:07:50] Speaker 00: And the other thing I would like to point out, I don't believe that there is a doctrine of equivalence in validity analysis, which I believe is what it's kind of morphing into. [00:07:59] Speaker 00: It's what a person with ordinary skill in the art would believe this to be. [00:08:03] Speaker 00: And there's a different flow of logic in a client-server versus a host-terminal relationship. [00:08:08] Speaker 02: But that's not in this record. [00:08:10] Speaker 02: You're saying these things, and I know that they're true, because I'm an electrical engineer at heart. [00:08:14] Speaker 02: But none of that is in this record. [00:08:15] Speaker 02: There is no expert that said this in this case. [00:08:18] Speaker 02: There are no documents that you can point me to in this record that can establish, beyond the substantial evidence standard that I've got to give deference to the board for, that the arguments you're making as an attorney are factually, unequivocally correct, and that no conclusion to the contrary would be supported by substantial evidence. [00:08:37] Speaker 00: That's my problem with this case. [00:08:39] Speaker 00: First, I would like to point out that the board itself [00:08:42] Speaker 00: has no evidence at all about that a person with ordinary skill in the art would believe that a host computer is equivalent to a LAN server, and that a term functioning terminal is the same as a personal computer in the system. [00:08:54] Speaker 02: Time out. [00:08:55] Speaker 02: As Judge Stoll pointed out, the prior art reference discloses what this terminal contains in the way of architecture, and the prior art reference discloses what this structure is capable of doing in the way of functionality, sending and receiving. [00:09:11] Speaker 02: At that point in time, the terminal, as disclosed in the prior art reference, doesn't seem to me to be distinguishable from a personal computer in any meaningful sense. [00:09:21] Speaker 02: So why is there no substantial evidence for that board conclusion? [00:09:24] Speaker 00: Well, I believe it's back to what the prior art author says. [00:09:28] Speaker 00: He refers to these as terminals. [00:09:30] Speaker 00: And I think you can safely say that if it was just a plain terminal and not a personal computer converted to a terminal, [00:09:37] Speaker 00: it would definitely be different in the eyes of a person of ordinary skill in the art. [00:09:40] Speaker 02: But what's missing is, for example, evidence on your part that people of skill in the art understood terminals to differ from personal computers. [00:09:50] Speaker 02: You're just pointing at the fact that two different words happen to be used. [00:09:53] Speaker 02: But the evidentiary link that's missing is that those two different words would convey to one of skill in the art the idea of very different, non-equivalent structures. [00:10:02] Speaker 00: Sure. [00:10:03] Speaker 00: But I don't think the board itself has connected that structure [00:10:07] Speaker 00: it either. [00:10:08] Speaker 00: It hasn't provided any evidence either. [00:10:10] Speaker 00: And they had the initial burden of production and the burden of persuasion on that issue. [00:10:14] Speaker 00: And I think as a threshold matter, they didn't prove it either. [00:10:18] Speaker 00: And I, contrary, I respectfully disagree. [00:10:22] Speaker 00: I believe that the fact that the prior art glossaries themselves have distinct definitions, discrete definitions, [00:10:31] Speaker 00: show it. [00:10:32] Speaker 00: And also, I think to a person of ordinary skill in the art, this is inherent. [00:10:35] Speaker 00: This is inherently different architecture that a person of ordinary skill in the art would readily understand. [00:10:42] Speaker 02: I know, but you can't just say it. [00:10:44] Speaker 00: You can't say it. [00:10:44] Speaker 02: There isn't a record for it. [00:10:46] Speaker 00: And I come back to what the prior author himself. [00:10:50] Speaker 00: In fact, in the Gersahani, there's no mention of server at all. [00:10:56] Speaker 00: Host is mentioned 613 times, and server is never mentioned. [00:11:01] Speaker 00: And when he talks about the invention, he says the invention is a host computer that must interface with a terminal. [00:11:11] Speaker 00: And you've got to realize at this time, the historical time, there was all these host terminal legacy systems, but the manufacturers had stopped making the hardware terminals. [00:11:21] Speaker 00: So they needed to create a terminal out of something so that they could keep these hosts [00:11:26] Speaker 00: terminal legacy systems operating. [00:11:29] Speaker 00: So that's why they had a terminal emulation. [00:11:32] Speaker 00: And further, I think... Well, you look at the definition of terminal emulation that's in the record. [00:11:38] Speaker 02: It states... Sure. [00:12:07] Speaker 02: It's probably around 49, 59, or somewhere thereabouts, I think. [00:12:13] Speaker 02: I haven't found it yet. [00:12:14] Speaker 00: Sure. [00:12:33] Speaker 03: Well, perhaps you can find that. [00:12:35] Speaker 00: Yeah, I'll find that on rebuttal, I believe. [00:12:37] Speaker 00: But I just want to point out, I think, just as a threshold matter, I know you, Your Honor, has said that we haven't had the linking information. [00:12:46] Speaker 00: But I don't think, as a threshold matter, the board has presented any evidence to conclude on these claim constructions that a person with ordinary skill in the art in 1993 would believe that the system described in those two prior references [00:13:01] Speaker 00: read on client server architecture of the system. [00:13:04] Speaker 00: And I just want to point out that the relevant issue for 102103 is the claim system in the prior art. [00:13:11] Speaker 00: That is the threshold thing. [00:13:13] Speaker 00: Thank you. [00:13:14] Speaker 03: OK. [00:13:14] Speaker 03: Thank you, Mr. Cook. [00:13:18] Speaker 03: Mr. Helm. [00:13:19] Speaker 01: Thank you very much, Your Honor. [00:13:20] Speaker 01: It may please the court. [00:13:22] Speaker 01: The board correctly construed the terms personal computer and land server in claim one. [00:13:27] Speaker 01: With respect to personal computer, [00:13:29] Speaker 01: The board came to the common sense conclusion that a personal computer is defined by the hardware it contains and not by the program that's running at the time. [00:13:38] Speaker 01: And the board held that the prior art, which explicitly disclosed a personal computer or disclosed something that had all the hallmarks of a personal computer, fulfilled that limitation. [00:13:49] Speaker 03: Well, this is a reexamination. [00:13:51] Speaker 03: That's correct. [00:13:52] Speaker 03: So the burden is on the office, not on the petitioner for reexamination. [00:13:57] Speaker 03: So isn't there more of a burden not to just say, well, it is because I say it is, but to provide the foundation for the position on which the previously allowed claim now presented for reexamination is no longer allowable? [00:14:16] Speaker 01: Well, Your Honor, I think the burden is exactly the same as the first time around. [00:14:21] Speaker 01: Exactly. [00:14:21] Speaker 01: Exactly. [00:14:22] Speaker 01: And that's my question. [00:14:24] Speaker 01: And I think that the board certainly came forward with, [00:14:27] Speaker 01: More than enough, I'm not exactly clear why the term personal computer requires a construction. [00:14:33] Speaker 01: I think it has a plain meaning that's very well known in the art. [00:14:37] Speaker 01: I think we interact with personal computers on a daily basis and certainly even in 1983. [00:14:41] Speaker 03: Unless the applicant, now the patentee, raises the issue and says that you construe it one way and I'm home free in another way and there's an obstacle. [00:14:53] Speaker 01: That's correct, Your Honor. [00:14:55] Speaker 01: And so the argument that was presented was that when the personal computer starts running a program, the program is called Terminal Emulation Program, it's a way for the personal computer to communicate with another computer on a network, which incidentally is exactly what's claimed. [00:15:09] Speaker 01: So when it starts running that program, does it suddenly transform from something other than a personal computer? [00:15:16] Speaker 01: Does it suddenly transform fundamentally into a different device? [00:15:20] Speaker 01: And the answer is no. [00:15:22] Speaker 01: The priority is clear that it clearly calls, for example, the IBM guides. [00:15:28] Speaker 01: It says, we use personal computers in the system. [00:15:31] Speaker 01: They run a terminal emulation program in order to affect this communication. [00:15:36] Speaker 01: So I think that's pretty good evidence that one skill in the art would understand that a personal computer running a program doesn't change its status as a personal computer. [00:15:47] Speaker 01: So I'm not sure, I hope that's addressing your question or addressing what you're asking. [00:15:52] Speaker 03: Well, what I'm trying to explore and really what I'm trying to think about is that here we have the action in the office. [00:15:57] Speaker 03: It's not before a district court. [00:15:58] Speaker 03: So we have experts on each side. [00:16:01] Speaker 03: And to understand at which point additional support for the rejection is required because the inventor himself is an expert, says no, this means something. [00:16:13] Speaker 01: I understand what you're saying. [00:16:16] Speaker 01: Now, I see what you're saying. [00:16:17] Speaker 01: And actually, I believe the testimony, there was testimony given by Mr. Gersahaney, if I may be pronouncing that incorrectly. [00:16:25] Speaker 01: But there was testimony from him. [00:16:26] Speaker 01: And his testimony was, this is exactly the type of architecture that we understood to be claimed. [00:16:33] Speaker 01: This reads on those claims. [00:16:35] Speaker 01: So his testimony was in both the IBM guides and in his own patent. [00:16:44] Speaker 01: his testimony was this is what we understood at the time to be involved in that type of architecture, the type of claimed architecture. [00:16:52] Speaker 03: Yes, it was 20 years ago. [00:16:54] Speaker 01: It was quite a long, more than 20 years ago. [00:16:56] Speaker 01: I think the relevant date was 93, so it's more than 20 years ago. [00:17:00] Speaker 01: And at the time, [00:17:01] Speaker 01: We use computers for an amazing amount of things now, and our interaction with things over network is fundamentally different than it was in 1993. [00:17:07] Speaker 01: 1993 was at the very beginning of web browsers, so really before that time, we were dialing up into AOL, but the type of terminal communication systems that were described in the prior art and used in the prior art, those were how computers communicated with each other at that point in time. [00:17:24] Speaker 01: That was how people [00:17:27] Speaker 01: could get access from one computer to another. [00:17:29] Speaker 01: Now, I believe, like I said, if this is something that was so special, the specific architecture, the client server architecture, if it was so special to distinguish this piece of this pattern from the prior art, which otherwise discloses a system that is essentially identical in arrangement, you would expect the pattern to mention a client or to claim a client [00:17:56] Speaker 01: as opposed to just claiming a piece of hardware, which is what a server is. [00:18:01] Speaker 01: So in 1993, you would not go on the internet. [00:18:04] Speaker 01: You would go to your catalog. [00:18:05] Speaker 01: You'd look it up. [00:18:06] Speaker 01: You would order a server from IBM. [00:18:08] Speaker 01: And it would come in a box. [00:18:10] Speaker 01: And you'd take it out, and you'd set it up with your personal computers and your local area network. [00:18:14] Speaker 01: And that's what you would do at the time. [00:18:16] Speaker 01: And I believe that's what's claimed. [00:18:18] Speaker 01: And I think that's what the board concluded. [00:18:21] Speaker 02: Well, one of the arguments presented in this case has to do with what the proper standard that ought to have been applied to this patent is. [00:18:30] Speaker 02: Namely, the examiner applied BRI, which looks like the correct standard because, well, I don't think it's the correct standard. [00:18:37] Speaker 02: But the law, it appears to be the correct standard. [00:18:39] Speaker 02: Yes, Your Honor. [00:18:41] Speaker 02: Because the patent had not expired at the time the examiner was reviewing it. [00:18:45] Speaker 02: That's correct, Your Honor. [00:18:46] Speaker 02: Then by the time it got to the board, the patent was expired. [00:18:50] Speaker 02: So at that point, shouldn't the standard have morphed into Phillips, since the patent was still within the PTO under the executive office adjudication process? [00:19:01] Speaker 02: I realize it's odd to say the board is reviewing the examiner, but at that point, is it really entitled to review the examiner using the wrong standard, given that the patent expired? [00:19:13] Speaker 01: Well, under our rules, the examiner carries out the re-examination. [00:19:19] Speaker 01: And then there's an appeal to the board. [00:19:20] Speaker 01: And the board reviews, again, under our rules, reviews. [00:19:23] Speaker 02: But this is all just part of the executive branch's resolution of this issue. [00:19:28] Speaker 02: And what we held in Rambas is that if a patent expires, you all have to use Phillips. [00:19:32] Speaker 02: You don't get to use. [00:19:33] Speaker 02: And isn't it true that in Rambas, the exact same facts were present? [00:19:37] Speaker 02: In Rambas, as I read the exact same facts, the patent had not expired while it was in front of the examiner. [00:19:41] Speaker 02: It wasn't until it was before the board. [00:19:43] Speaker 02: And nonetheless, we held nope. [00:19:46] Speaker 02: You should have used the Phillips name. [00:19:47] Speaker 01: So I think there's one very, very important distinction between Rambas and this case. [00:19:50] Speaker 01: And that's that in Rambas, the board issued a new grounds of rejection, which reopened the prosecution. [00:19:56] Speaker 01: So if the board had done that in this case, then absolutely, they should have used Phillips in their attendant claim construction. [00:20:03] Speaker 01: Whereas in Rambas, what happened was the board got the examiner's rejection, considered it, did not like it, issued a new grounds of rejection. [00:20:11] Speaker 01: And so in that case, under our rules- Did he go back to the examiner? [00:20:14] Speaker 01: But that was essentially a reopening of prosecution. [00:20:18] Speaker 01: Under our rules, that gives the opportunity to reopen prosecution. [00:20:21] Speaker 01: They could have gone back to the examiner. [00:20:24] Speaker 01: Well, they couldn't because the patent was expired, which is why they had to apply Phillips. [00:20:29] Speaker 01: So at that point, if in this case there had been new grounds of rejection, absolutely, then Phillips would apply. [00:20:36] Speaker 01: But that's because the board was not, in Rambas, the board was not actually reviewing the examiner's rejection. [00:20:42] Speaker 01: At that point, they were stepping into the shoes of the examiner and acting as a sort of super examiner, in that case, and making their own rejection. [00:20:51] Speaker 01: And under those circumstances, absolutely, Phillips would apply. [00:20:54] Speaker 01: And that's what the court correctly held. [00:20:56] Speaker 03: In Rambas, what standard did the board apply for the claim construction? [00:21:03] Speaker 01: I don't recall that the board. [00:21:06] Speaker 01: explicitly said whether they were applying BRI or Phillips. [00:21:09] Speaker 01: I don't recall. [00:21:10] Speaker 01: They may have said that. [00:21:11] Speaker 01: I just don't recall. [00:21:12] Speaker 01: But certainly this court applied Phillips in their review of it. [00:21:17] Speaker 01: I'm unaware of any case where the patent expired and without a new grounds of rejection, this court has held that the board should have [00:21:31] Speaker 01: The board should have had the affirmative obligation to then enter a new grounds of rejection. [00:21:38] Speaker 01: So essentially, that would be what the board would have to do in this case. [00:21:40] Speaker 01: They can't review the examiner's decision. [00:21:43] Speaker 01: They would have to enter in a new grounds. [00:21:45] Speaker 01: Why not? [00:21:45] Speaker 02: Why can't they review it and say, under either standard, the result would be the same? [00:21:50] Speaker 02: Does that constitute a new ground of rejection? [00:21:54] Speaker 01: Possibly. [00:21:55] Speaker 01: I mean, it may. [00:21:57] Speaker 01: because they're going to make a factual finding based upon a narrow construction. [00:22:00] Speaker 02: No, you're assuming it's a narrow construction. [00:22:04] Speaker 01: That was an assumption, yes. [00:22:05] Speaker 02: Not every BRI and claim construction under Phillips would be different. [00:22:10] Speaker 02: Sometimes they would be identical. [00:22:12] Speaker 02: Absolutely. [00:22:14] Speaker 02: And I think that may actually be the case here. [00:22:18] Speaker 02: So why then couldn't the board have said, well, since the patent's expired, we're now in a Phillips world. [00:22:25] Speaker 02: But since the construction is identical, it changes nothing. [00:22:29] Speaker 02: And that's as a matter of law. [00:22:31] Speaker 02: There's no facts that need to be taken into account to reach that conclusion. [00:22:34] Speaker 02: And so there's sort of no harm, no foul. [00:22:38] Speaker 01: I think if there's no new factual finding that the board undertakes, I think they could do that. [00:22:44] Speaker 01: And I actually think that they did something along those lines here. [00:22:47] Speaker 01: I think the examiner did as well, or the board considering when the examiner's rejection, the examiner's fact-finding, because what the board did was they said, [00:22:57] Speaker 01: You know, we agree with what the examiner said for their claim constructions. [00:23:00] Speaker 01: We're also going to look at what the district court did. [00:23:02] Speaker 01: They considered what the district court did when they construed the claims, which is always nice when the board does that, right? [00:23:08] Speaker 02: Something they may have been counseled to do in the past. [00:23:11] Speaker 01: Well, unfortunately, that counsel may have come after this board opinion, but they maybe anticipated. [00:23:16] Speaker 01: But it's something that is good to do. [00:23:19] Speaker 01: And they made the factual fine. [00:23:21] Speaker 01: They said, for example, with respect to the land server, they said, [00:23:25] Speaker 01: Well, let's look and see what the hallmarks are in the claim construction that the district court gave. [00:23:32] Speaker 01: And it looked and it found that these systems, the systems of exclusion of priority, had those hallmarks. [00:23:36] Speaker 01: Did they respond to requests? [00:23:39] Speaker 01: Did they meet these limitations in the claim construction? [00:23:42] Speaker 01: It said yes. [00:23:43] Speaker 03: So if, when this came to the board on appeal and it looked to the board as if with further amendment, [00:23:54] Speaker 03: core of what had been invented could be handled. [00:23:57] Speaker 03: What would the board do? [00:23:59] Speaker 03: Would you remand back to the examiner for further examination? [00:24:03] Speaker 01: If the board disagreed with what the examiner did, then it would be they could either enter new grounds or they could reverse the rejection. [00:24:11] Speaker 03: Reverse the rejection rather than send it for further examination? [00:24:18] Speaker 01: Your Honor, I'm not exactly sure what would happen in this case because since it's [00:24:23] Speaker 01: Since the patent was expired at the time, I'm not sure that it makes any difference to send it back to the examiner. [00:24:31] Speaker 01: Maybe they could have sent it back to the examiner. [00:24:33] Speaker 03: That's the issue that I really wanted to raise, because it did expire. [00:24:38] Speaker 03: And we know that the rule is that when it's expired so that amendment is no longer available, neither is BRI to be applied. [00:24:48] Speaker 03: But they go together. [00:24:48] Speaker 03: And if BRI continues to be applied on appeal, [00:24:53] Speaker 03: Even though the patent is expired, one would think that amendment would still be available in order to, again, bring out what was actually invented in the interest of the inventor. [00:25:07] Speaker 03: So now it gets more and more complicated. [00:25:10] Speaker 01: Yes, I think I see your point. [00:25:12] Speaker 01: And my response, Your Honor, is that. [00:25:14] Speaker 01: The patentee had every opportunity when they were before the examiner to make the amendments necessary to convey patentability over these what appear to be very strong prior references. [00:25:27] Speaker 01: I think there may have been problems putting in the type of limitations that they're arguing are somehow inherently present or should be inserted into the claim. [00:25:36] Speaker 01: There may be written description problems with making those amendments, because I don't see any description for those in the specification of claims. [00:25:44] Speaker 01: setting aside those issues of why they chose not to put that language into their claims. [00:25:51] Speaker 01: Once it gets to the board and the patent's expired, if the board says, we disagree with the examiner, after that point, whatever further prosecution takes place or whatever further rejections take place, because it's no longer a review of the examiner's decision, that will have to be conducted under Phillips. [00:26:11] Speaker 02: Can I ask you a technical question to go back to the technology? [00:26:16] Speaker 02: So the prior are Gershani? [00:26:19] Speaker 02: Yes, Your Honor. [00:26:21] Speaker 02: Is it your view that it discloses, in fact, a personal computer? [00:26:26] Speaker 02: It's just that that meaning all of the structure that anyone would think of as encapsulating a personal computer, a microprocessor, a screen, a hard drive, a keyboard, a mouse, whatever the structures are that meet the definition of personal computer, is it that off this position that all of those structures were present [00:26:48] Speaker 02: in what is being referred to as a terminal in Gershahani, it's just that it was running a particular program that had it function for that purpose as a terminal. [00:26:58] Speaker 02: But nonetheless, it had all of the structural elements of a personal computer. [00:27:02] Speaker 01: Yes, Your Honor, that's correct. [00:27:03] Speaker 01: And just to be clear, I think that in addition to referring to the system, talking about terminals, it also refers to these as workstations. [00:27:13] Speaker 01: And at the time, maybe we [00:27:16] Speaker 01: don't use that term as much now, but at the time, these computers that were attached to local area networks, at least I fear I'm using my own recollection here. [00:27:27] Speaker 01: We often call this workstation. [00:27:28] Speaker 02: Well, yeah, I was going to ask you if you agree with the same thing that I thought he was doing, which is even if you're correct and I were to agree with your recollection, it probably isn't. [00:27:36] Speaker 02: I don't think that's in the record. [00:27:37] Speaker 01: Yes, you're absolutely right, Your Honor. [00:27:40] Speaker 01: And as I said, that's just [00:27:44] Speaker 01: But absolutely, they certainly do disclose what they call a workstation. [00:27:51] Speaker 01: They disclose that those workstations have all of the hallmarks of what we would expect a personal computer, including the fact that they are IBM PS2s, which was IBM's personal computer at the time. [00:28:02] Speaker 01: So let me see. [00:28:06] Speaker 02: Figure 53-27, Figure 1 of Gershahani. [00:28:11] Speaker 01: Yes, all the figures of Gershahani show that. [00:28:13] Speaker 01: And then also in the text at 53-55, column 15 lines, let me see, 28 to 29. [00:28:23] Speaker 01: So that says the workstation 100. [00:28:28] Speaker 01: can be an IBM PS2 model 80, for example. [00:28:30] Speaker 02: And that is, in fact, a personal computer. [00:28:33] Speaker 01: Yes, that is the personal computer that IBM sold at the time, or one of the personal computers that IBM sold at the time. [00:28:38] Speaker 01: And then they go on after that to discuss very specific aspects. [00:28:43] Speaker 02: What exact column line number was that? [00:28:46] Speaker 01: That was at 15, line 28, 29. [00:28:49] Speaker 01: And then at column 16, lines 6 to 8, [00:28:55] Speaker 01: They talk about that it has memory in the workstation. [00:28:58] Speaker 01: It has a multitasking operating system, which is the OS2 Extended Edition by IBM. [00:29:04] Speaker 01: And they go on. [00:29:05] Speaker 01: And so to talk further about the workstations. [00:29:09] Speaker 01: And again, when they're talking about terminals, they suppose that this reference maybe discloses more than just the type of system that's claimed. [00:29:20] Speaker 01: Because when they're talking about terminals, there's an alternative, and this is what [00:29:23] Speaker 01: Mr. Gersahani said in the district court litigation, he said, there's more than just, there's more than just, I'm sorry, I'm over my time, if I could just, is it over? [00:29:36] Speaker 01: There's more than just terminal, there's terminals interacting with mainframes, and then we also have this type of system which is personal computers interacting with the server. [00:29:44] Speaker 01: And so he was saying that that type of personal computer interacting with a server, that's the type of architecture that they were going for, especially the IBM guides. [00:29:53] Speaker 03: Do you think we have more questions? [00:29:55] Speaker 03: No, thank you. [00:29:56] Speaker 03: OK. [00:29:56] Speaker 03: And thank you, Mr. Helm. [00:29:59] Speaker 00: Mr. Cook? [00:29:59] Speaker 00: Thank you. [00:30:00] Speaker 00: Just a few points, and I'll be brief. [00:30:03] Speaker 00: First of all, what he said about Mr. Gersahani and saying that in his patent, there's a server communicating with a PC, that's not the contemporaneous evidence, which is his own patent. [00:30:14] Speaker 00: totally contradicts him. [00:30:15] Speaker 00: Server is never mentioned in his patent. [00:30:19] Speaker 00: There's nothing, indeed, where personal computers are sending and receiving any type of information as personal computers. [00:30:27] Speaker 00: It is undisputed that in the system of Gersahani, host computers exchange menu images with workstations functioning as terminals. [00:30:36] Speaker 00: And when you take a look at what the analysis has to be in 102, 103, you have to find the system [00:30:43] Speaker 00: in the system of Claim One in Mr. Garzahani. [00:30:46] Speaker 00: The system of Claim One has a server and personal computers. [00:30:50] Speaker 00: And personal computers are not just sitting doing nothing. [00:30:52] Speaker 00: They're sending and receiving data records as personal computers. [00:30:56] Speaker 00: And in Garzahani, he refers them to him as terminals. [00:31:02] Speaker 00: And to say that Mr. Garzahani conceived and enabled the invention of Claim One doesn't seem to be supported by any evidence [00:31:10] Speaker 00: And you heard them. [00:31:10] Speaker 00: They haven't been able to point to any evidence, even in his argument, he hasn't pointed to any evidence. [00:31:15] Speaker 00: Now, on the flip side, as you say, Mr. Gersahani's own patent, he himself refers to these workstations as terminals. [00:31:23] Speaker 00: And information is sent to the terminal and from the terminal. [00:31:28] Speaker 00: And then you look at the definition of terminal emulation at A911A. [00:31:32] Speaker 02: It talks about the terminal emulation makes- Well, he refers to them as terminals, but doesn't he also refer to them as workstations? [00:31:39] Speaker 00: Workstations, but if you look at the, this is not a record, but if you look at the IBM, it might be in one of the glossaries, but if you look at the definition of workstation is a terminal with a human in the IBM references. [00:31:52] Speaker 02: But no, but he defines it. [00:31:54] Speaker 02: Gerstahane defines it in the reference. [00:31:55] Speaker 02: He doesn't define it as a human. [00:31:57] Speaker 02: He defines it as the workstation 100 can be an IBM PS-2 model 80, for example. [00:32:02] Speaker 00: Yes, it can start out as a personal computer. [00:32:04] Speaker 00: Not a personal computer. [00:32:05] Speaker 00: It starts out as a personal computer, but when you look at it from the perspective of the system, [00:32:09] Speaker 00: It is a terminal. [00:32:11] Speaker 00: It's been converted into a terminal in the system. [00:32:14] Speaker 00: And that is the relevant legal question. [00:32:16] Speaker 00: In the system, what is the nature of that component? [00:32:20] Speaker 00: And in this system, Mr. Kursahani clearly says his are terminals. [00:32:25] Speaker 00: And their function is terminals. [00:32:26] Speaker 00: And they receive and send screen images as terminals. [00:32:30] Speaker 00: Whereas in contrast, claim one, the personal computers are sending and receiving data records as personal computers. [00:32:38] Speaker 00: And even if you take a look at just not the personal computer terminal issue, there's the LAN server issue and the host computer. [00:32:45] Speaker 00: If you look at the IBM glossaries, there's discrete definitions of these things and even the IBM definition. [00:32:52] Speaker 00: Host computer is the controlling or main computer in an architecture where the definition of a server says it serves other components in the system, which are clients, in this case, the personal computer. [00:33:06] Speaker 00: So when you take a look at, [00:33:07] Speaker 00: system as a whole and not just parsing individual components, it's clear that Gersahani and the co-coordinator does not show the system of claim one. [00:33:18] Speaker 00: And as I said, we can point to the evidence of record is Mr. Gersahani himself referring to these as terminals, the IBM glossary, for instance, 4962 and 4963, with discrete definitions of host, computer, and server, and the definition of terminal emulation. [00:33:35] Speaker 00: And you can look at the call coordinator 4306, where it says the host computer communicates via sending screen images via terminal emulation. [00:33:46] Speaker 00: And we believe that the terminal emulation turns a personal computer into a terminal in the system. [00:33:53] Speaker 00: Now, going back to BRI, I think their distinction about the Rambas case, the distinction without a distinction, the court did not make a distinction saying it was because it was sent back. [00:34:04] Speaker 00: In fact, I think that actually cuts against them. [00:34:06] Speaker 00: The fact that they were given an additional opportunity to amend the claims, and they still said Phillips had to apply actually cuts against them. [00:34:13] Speaker 00: I believe that in this case, Phillips should have been used because the patent had expired. [00:34:20] Speaker 00: And I just think a person of ordinary skill in the art looking at the prior art and the claim one would not believe that Mr. Kersahani was in possession of the client server system of claim one. [00:34:34] Speaker 00: And we know the claim one is a client-server. [00:34:37] Speaker 00: I mean, a person with ordinary skill in the art, it's inherent. [00:34:40] Speaker 00: When they see a server, they see a client-server relationship. [00:34:42] Speaker 00: And I think this court reiterated that in the Apple Samsung case a couple of weeks ago. [00:34:48] Speaker 00: And that's all I had. [00:34:49] Speaker 00: Thank you. [00:34:50] Speaker 03: Any more questions? [00:34:51] Speaker 03: Any more questions? [00:34:52] Speaker 03: OK, thank you. [00:34:53] Speaker 03: Thank you both. [00:34:54] Speaker 03: The case is taken under submission.