[00:00:01] Speaker 03:
We have four argued cases today.

[00:00:03] Speaker 03:
The first one is Inray Rivera.

[00:00:07] Speaker 03:
Council ready to proceed?

[00:00:08] Speaker 01:
Yes, Your Honor.

[00:00:14] Speaker 01:
Good morning, Your Honors.

[00:00:15] Speaker 03:
Mr. Cundu?

[00:00:15] Speaker 01:
Yes.

[00:00:18] Speaker 01:
Your Honors, in invalidating Claim 23 of Patent 8291812, the board below relied on an extrinsic definition of the word compressed to construe a claim term tamper.

[00:00:32] Speaker 01:
This extrinsic definition was not in the evidentiary record.

[00:00:36] Speaker 01:
And by relying on this definition, the Patent Office exceeded its authority provided by Congress, which mandated that unpatentability be proven by the petitioner with a preponderance of evidence.

[00:00:48] Speaker 02:
So when you said it was not in the evidentiary record, I guess maybe I'm misremembering.

[00:00:53] Speaker 02:
I thought it was introduced with the reply filing by the challenger.

[00:00:58] Speaker 01:
Yes, Your Honor.

[00:00:59] Speaker 02:
Does that not make it part of the evidentiary record?

[00:01:02] Speaker 01:
No, Your Honor, because in our position is what an attorney says a claim term means is not evidence.

[00:01:09] Speaker 01:
So for it to have been in the record, we would have had a dictionary definition that would have been labeled as an exhibit.

[00:01:16] Speaker 01:
As an example, the definition that we offered below.

[00:01:19] Speaker 02:
I'm sorry.

[00:01:20] Speaker 02:
I thought, again, I may be just confusing the details.

[00:01:23] Speaker 02:
I thought that was a Merriam-Webster dictionary definition.

[00:01:29] Speaker 01:
So the definition was it was written in the reply brief and then at the end of the sentence they had a site to a Merriam-Webster's 2011.

[00:01:38] Speaker 02:
So when you say not in the evidentiary record, do you mean that there wasn't a single page photocopy of what was accurately inserted into the record of what was accurately quoted from that page of Merriam-Webster?

[00:01:54] Speaker 01:
Whether it was accurate, we don't know because that page is not in the record.

[00:01:57] Speaker 01:
all we have to rely on is the attorney who stated the definition.

[00:02:03] Speaker 01:
And so I think one of the issues here is the board's position is, well, we think this definition is reasonable, and we're allowed to conclude what the broadest reasonable interpretation is.

[00:02:17] Speaker 01:
That's a separate issue from the Chevron Doctrine.

[00:02:19] Speaker 01:
The Chevron Doctrine is, did the board even have authority to consider and rely on this definition?

[00:02:25] Speaker 01:
And the answer is no, because Congress

[00:02:27] Speaker 01:
gave its unambiguous intent that unpatentability must be proven by the petitioner with the preponderance of evidence.

[00:02:36] Speaker 01:
And so because the definition that they relied on was not in evidence, it's not evidence, they exceeded their authority by relying on it and then using it to invalidate Claim 23.

[00:02:48] Speaker 03:
Didn't the board expressly state that it wasn't relying on the definition?

[00:02:56] Speaker 01:
brief on this appeal, they said that they're not relying on it.

[00:03:01] Speaker 01:
In our reply to that, we pointed out where in the final written decision, which is in the joint appendix, page seven.

[00:03:11] Speaker 01:
That can be quoted here.

[00:03:12] Speaker 01:
Our position as the board very clearly relied on it.

[00:03:16] Speaker 01:
And from that appendix, page seven, the board said in the final written decision, a dictionary definition provided by petitioner

[00:03:25] Speaker 01:
for the word compress, i.e.

[00:03:27] Speaker 01:
to press or squeeze together is reasonable and consistent with use of the term tamper in the specification.

[00:03:33] Speaker 01:
We interpret tamper to refer to an element that compresses, i.e.

[00:03:37] Speaker 01:
presses or squeezes together coffee inside the claimed coffee holder.

[00:03:42] Speaker 01:
So they introduced the definition provided in that reply and then used that to base their ultimate definition of tamper.

[00:03:49] Speaker 03:
Not from what you read.

[00:03:50] Speaker 03:
They said they articulated what

[00:03:55] Speaker 03:
a party had done, but then they articulated their own definition.

[00:04:00] Speaker 01:
And so, Your Honor, our position is that the pressing or squeezing connecting that phrase to tamping, the only place that that exists in the record is from that reply brief.

[00:04:17] Speaker 01:
So in our reply brief, we also pointed out in the Patent Office's response, they also make a causal connection between

[00:04:25] Speaker 01:
the introduction of this definition in a reply to the ultimate conclusion of what tamper means.

[00:04:31] Speaker 01:
And I'll pull that out from our reply brief, where that is in the patent owner's brief.

[00:04:39] Speaker 01:
Secondly, so our principal point on the Chevron doctrine is what I've just articulated.

[00:04:44] Speaker 01:
But there are other patent office rules that weren't followed when the patent office relied on this definition.

[00:04:54] Speaker 01:
So one of those rules is that claim constructions have to be in the petition.

[00:05:01] Speaker 01:
So that's part of the content of a petition, is that the petitioner puts in their claim construction, they also put in their evidence supporting their challenges of unpatentability.

[00:05:14] Speaker 01:
And so that's 37 CFR 42.104b5 and 37 CFR 42.104b3.

[00:05:25] Speaker 01:
And we submit, Your Honor, that these rules were not followed because the definition associating tamping with a press or squeeze was in the reply.

[00:05:37] Speaker 01:
It was not in the petition.

[00:05:40] Speaker 01:
And that also brings up a case that the parties had talked about in their briefs, the Ariosa case, where a reference at issue there was in the petition.

[00:05:53] Speaker 01:
And it wasn't exhibited.

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this court found that the patent office erred in not considering it.

[00:06:03] Speaker 01:
That case is very similar to our position in that we have a definition that wasn't in exhibit, it wasn't in the petition, and so it should not have been considered because of the rules of claim constructions being in the petition, having your evidence in the petition.

[00:06:24] Speaker 02:
Isn't it right that at least as to maybe even only, I don't know, as to non-technical terms, and I would consider tampering as sort of a non-technical term, that it's not unusual, for example, for this court in construing a claim by ordinary language where there's no meaningful factual dispute to rely on

[00:06:54] Speaker 02:
dictionaries for ordinary language terms, because other people have thought about the right formulation of words to capture what we kind of intuitively know.

[00:07:06] Speaker 02:
And you may as well use that form of words rather than have to think of it yourself.

[00:07:13] Speaker 02:
Why is this different from that?

[00:07:16] Speaker 02:
Assuming I'm remembering right in general about maybe not a frequent practice, but a not

[00:07:24] Speaker 02:
unusual practice.

[00:07:26] Speaker 01:
So, Your Honor, I think the difference comes with agency law.

[00:07:32] Speaker 01:
And it goes back to this issue that I think the board's position is, well, we got it right.

[00:07:40] Speaker 01:
We construed the term correctly.

[00:07:42] Speaker 01:
We take issue with that.

[00:07:42] Speaker 01:
We don't think they got it right.

[00:07:43] Speaker 01:
But they got it right, and we're allowed to construe terms, so there's no problem.

[00:07:49] Speaker 01:
The issue comes with the Chevron

[00:07:52] Speaker 01:
It's not an issue of whether they think they got it right.

[00:07:54] Speaker 01:
It's an issue of did they have the authority to even consider it.

[00:07:57] Speaker 01:
So I understand in other instances before the patent office where the federal rules or evidence aren't part of a proceeding, there's some leeway there to say, okay, well, this is non-technical.

[00:08:14] Speaker 01:
I can look at a dictionary definition and I can understand this, so I'll go there.

[00:08:18] Speaker 02:
But in cases coming from district courts, ordinary, old-fashioned infringement litigation, the rules of evidence apply and so does the general rule that an appellate court is not supposed to go outside the record.

[00:08:34] Speaker 02:
Nevertheless, on legal questions, and to a very large extent, claim construction is a legal question, at least again where non-technical terms are used, don't we

[00:08:48] Speaker 02:
I mean, look outside the record in the sense that we can look to publicly available, you know, ordinary English definitions.

[00:08:56] Speaker 01:
I think, again, Your Honor, it's an issue of district court versus an administrative agency.

[00:09:04] Speaker 01:
It also has to do with whether Congress has unambiguously spoken on the issue.

[00:09:09] Speaker 01:
So Congress gives the patent office the authority to conduct these IPRs.

[00:09:14] Speaker 01:
And then they also have additional statutes governing what they do.

[00:09:18] Speaker 01:
So when Congress speaks unambiguously, and here they have requiring unpatentability to be proven by evidence, then the patent office doesn't have that leeway.

[00:09:27] Speaker 01:
They don't have room to interpret a statute that is unambiguous and written by Congress.

[00:09:34] Speaker 01:
So I think it's really an issue of admin law.

[00:09:40] Speaker 01:
It's a matter of, could I do this?

[00:09:43] Speaker 01:
Did Congress give me the right to do this?

[00:09:45] Speaker 01:
And the answer is no.

[00:09:49] Speaker 01:
So that's our position on that.

[00:09:56] Speaker 01:
I would also add that some of what we were talking about, our principal position is the Chevron Doctrine, the role of an admin agency with respect to what Congress has, the authority Congress has given, the patent office.

[00:10:11] Speaker 01:
But secondly and substantively, I think in the patent office's reply brief,

[00:10:19] Speaker 01:
Actually, I'm in my rebuttal time, so I can stop now if anyone has any other questions.

[00:10:27] Speaker 01:
I'll just reserve my time for rebuttal.

[00:10:36] Speaker 02:
Ms.

[00:10:36] Speaker 02:
Lateef?

[00:10:38] Speaker 00:
May it please the court, in construing the claim term tamper, the board did not commit any procedural errors as alleged by the patent owner, Rivera.

[00:10:48] Speaker 00:
And to Judge Wallach's question earlier, the board did explicitly state that it did not rely on the dictionary definition for the word compress when it construed the term tamper.

[00:11:01] Speaker 00:
And that can be found on page A30 of the appendix.

[00:11:06] Speaker 00:
And if I could just direct you there, the board specifically says,

[00:11:13] Speaker 00:
And the last paragraph, we did not rely on petitioner's definition of compress when declining to limit tamper as patent owner and expert suggested.

[00:11:22] Speaker 00:
Rather, we gave the term tamper its broadest reasonable interpretation in view of the claim language.

[00:11:27] Speaker 00:
So that's the first issue.

[00:11:28] Speaker 00:
To the extent that the court disagrees and finds that the board did rely on this dictionary definition, the patent office is well within its rights to do so.

[00:11:40] Speaker 00:
Going off on what Judge Toronto said.

[00:11:42] Speaker 02:
Can I just ask you, I guess I'm a little puzzled.

[00:11:48] Speaker 02:
The board got this phrase, didn't they?

[00:11:55] Speaker 02:
What is it?

[00:11:58] Speaker 02:
Press or squeeze or something?

[00:12:00] Speaker 02:
Press or squeeze together from the dictionary.

[00:12:03] Speaker 02:
I mean, right?

[00:12:05] Speaker 02:
So in what sense did it not rely on it?

[00:12:08] Speaker 00:
Well, it's the ordinary meaning of a very common and ordinary word, right?

[00:12:11] Speaker 00:
Compress.

[00:12:12] Speaker 00:
What does compress mean?

[00:12:13] Speaker 00:
And the board didn't rely on the petitioner's dictionary definition.

[00:12:18] Speaker 00:
It just went with the common meaning of compress.

[00:12:20] Speaker 00:
And if the board had looked at a dictionary definition, judges have a right to look at dictionary definitions to define technical terms or to construe claim language.

[00:12:31] Speaker 00:
So long as that construction or that definition

[00:12:34] Speaker 00:
doesn't contradict what's in the patent application.

[00:12:37] Speaker 02:
So it's more like it had an intuition about what the term meant by an intuition, didn't quite have the words for it.

[00:12:47] Speaker 02:
When it saw those words in the dictionary definition, it wasn't adopting those words

[00:12:52] Speaker 02:
cause a dictionary informed it of something it didn't already know and into it but rather found words to capture an intuition it it already had he's got the sense in which it didn't rely i think that's i don't mean to sound i understand you're not negative about that formulation but it's a little subtle well i think i think it's right though if you look at what the board said it's a good impression they were saying we already know that right well because they had an intuition they think and it's an ordinary word we know what compressed means in fact in the deck in the definition they say

[00:13:22] Speaker 00:
A tamper is a device that compresses, i.e.

[00:13:26] Speaker 00:
press and squeeze, sort of that is.

[00:13:27] Speaker 00:
They're just saying people know what that means.

[00:13:29] Speaker 00:
I'm sorry, yeah, I think they said i.e.

[00:13:31] Speaker 00:
press and squeeze.

[00:13:32] Speaker 00:
People know what compress means.

[00:13:33] Speaker 00:
It's not a complicated word.

[00:13:36] Speaker 00:
And the board's saying, OK, well, we see this dictionary.

[00:13:40] Speaker 00:
Great.

[00:13:40] Speaker 00:
We don't need to look at it to know what that means.

[00:13:45] Speaker 00:
And so again, the board didn't rely on it.

[00:13:48] Speaker 00:
But even if they had, they would not have committed any procedural errors.

[00:13:52] Speaker 00:
Because the dictionary definition wasn't being offered to handle a fact in dispute.

[00:13:59] Speaker 00:
It was just being offered to show this is an ordinary word, and this is a plain and ordinary meaning.

[00:14:07] Speaker 00:
And so as we said in our brief, it's akin to deciding case law.

[00:14:11] Speaker 00:
OK, here we have a dictionary definition.

[00:14:13] Speaker 00:
Everybody knows what it means.

[00:14:14] Speaker 00:
Let me just give you this definition.

[00:14:16] Speaker 00:
It didn't need to be provided in an exhibit.

[00:14:18] Speaker 00:
And this argument that it had to be in the petition

[00:14:22] Speaker 00:
also isn't accurate because the court's decision in Belden talks about rebuttal evidence is allowed to be considered by the board if it's responding to something in the patent owner response, for example.

[00:14:36] Speaker 00:
And so here it was put in the reply in response to something that the patent owner said about what a tamper does.

[00:14:44] Speaker 00:
And just lastly, regardless of whether the board adopted

[00:14:50] Speaker 00:
press and squeeze as a definition for compress, or Rivera's definition of compress, which I think in their briefs they explained was compact, thou, the prior art that we're talking about, still teaches a tamper that compresses coffee.

[00:15:06] Speaker 00:
So based on the board's construction, we believe it was proper.

[00:15:09] Speaker 00:
The dictionary definition wasn't relied on.

[00:15:11] Speaker 00:
Even if it was relied on, we believe that was also proper.

[00:15:14] Speaker 00:
And regardless of which construction you take for the word compress,

[00:15:20] Speaker 00:
thou anticipates in disclosure of the tamper.

[00:15:23] Speaker 00:
And I respectfully ask that the court uphold the board's final written decision as a result.

[00:15:43] Speaker 01:
So in terms of the issue of whether the board relied on the definition, I

[00:15:49] Speaker 01:
talked about what was in the written decision, and then also in the board's brief on this appeal at page 13 states, the board found that Guangdong's dictionary definition for the word compress was reasonable and consistent with the use of the term tamper in the specification.

[00:16:10] Speaker 01:
Thus, the board interpreted the term tamper to refer to an element that compresses, i.e.

[00:16:17] Speaker 01:
presses or squeezes together

[00:16:19] Speaker 01:
coffee inside the claimed coffee holder.

[00:16:22] Speaker 01:
So that's what I was alluding to earlier about this causal connection, that the petitioner introduces a definition, the board says, that's reasonable, I'm going to go with it.

[00:16:32] Speaker 02:
And in my understanding, remembering the Zhao prior art right, the tamper there is a net that keeps the grounds, or I guess

[00:16:47] Speaker 02:
Can you use grounds before it's percolated?

[00:16:51] Speaker 02:
Anyway, the dry stuff from floating up in the water.

[00:16:56] Speaker 01:
That's correct.

[00:16:57] Speaker 01:
That's correct.

[00:16:58] Speaker 01:
And so in terms of the substance, Your Honor, the issue is, OK, so Zhao has a separation that prevents coffee powder from floating.

[00:17:08] Speaker 01:
And one thing that seems pretty consistent below and on appeal is that drippelators don't use tamp coffee.

[00:17:17] Speaker 01:
And so why is that significant?

[00:17:18] Speaker 01:
It's significant because claim 23 talks about a coffee holder that tamps coffee and it's engageable with a coffee maker.

[00:17:27] Speaker 01:
The evidence below was very consistent that a drippelator doesn't use tamp coffee.

[00:17:33] Speaker 01:
Tamp coffee is used with pressurized water systems like espresso brewing.

[00:17:37] Speaker 01:
But drippelators use loose ground coffee.

[00:17:40] Speaker 01:
So Zhao doesn't identify any component as a tamper.

[00:17:45] Speaker 01:
And it also says that it can be used with a dripplator, which doesn't use tamp coffee.

[00:17:50] Speaker 01:
And there is no other coffee maker identified whether in Zhao or any piece of prior art below.

[00:17:56] Speaker 01:
So separately, our position is that there were procedural errors, that the patent office exceeded its authority.

[00:18:06] Speaker 01:
But as background, they didn't get it right either in terms of concluding that Zhao

[00:18:14] Speaker 01:
preventing coffee from floating, being used in a drip later, anticipates a patent that has to do with tamping coffee and engaging that with a coffee maker.

[00:18:27] Speaker 02:
It's out of the limit to the drip later, so did he.

[00:18:31] Speaker 02:
He said it could be used independently as well.

[00:18:34] Speaker 01:
That's correct, Your Honor.

[00:18:35] Speaker 01:
Claim 23 requires a coffee maker.

[00:18:37] Speaker 01:
So the coffee maker is claimed in Claim 23.

[00:18:44] Speaker 01:
And I think that's also one of the issues that was going on below, which was an analysis of Zhao independent of a dripulator, whereas claim 23 encompasses the copy maker as well, not just the holder.

[00:19:01] Speaker 01:
And if there are no other questions, you're all right.

[00:19:06] Speaker 01:
Thank you.