[00:00:15] Speaker 01:
Next case is repairs ventures LLC versus Cisco systems ink 15 1675 that case is consolidated for purposes of argument with repairs ventures LLC versus Cisco systems ink 15 1757 And we have mr.. Foster correct Okay, we've

[00:00:45] Speaker 01:
You're the only person arguing today, and we're giving you 20 minutes.

[00:00:50] Speaker 01:
I don't know if you would need all that time, but you've got 20 minutes.

[00:00:55] Speaker 02:
Thank you, Your Honor, and I will try to be brief.

[00:00:59] Speaker 02:
Good morning, and may it please the court.

[00:01:01] Speaker 02:
The two cases here involve the reexamination of two patents that the patent office has concluded are obvious, and substantial evidence supports that conclusion.

[00:01:11] Speaker 02:
I'd like to highlight some of that since the other side is not here to discuss the case today.

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I'd like to highlight just some of the evidence that does support the office's judgment of obviousness.

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The common issue between these two cases and the only issue in the appeal regarding the 481 patent is whether the claims distinguish over devices that are built using components taken from a quote, standard telephone, unquote.

[00:01:38] Speaker 02:
The appeal concerning the 371 patent also has issues relating to a written description rejection and to the Patent Office's use of representative claims in deciding cases on appeal before the patent.

[00:01:51] Speaker 03:
You can assume we've read the record and the briefs.

[00:01:56] Speaker 02:
Thank you, Your Honor.

[00:01:57] Speaker 02:
Turning to the first issue, Ryperius has argued that claims require a unique and specialized device.

[00:02:04] Speaker 00:
Don't they also, in their preferred embodiment,

[00:02:07] Speaker 00:
specifically describe one embodiment in which they actually just modify a plain old telephone, a conventional telephone, and then they describe another embodiment in which they say it has an echo problem.

[00:02:19] Speaker 00:
Then they say, you can avoid this echo problem by having this whole new device.

[00:02:24] Speaker 00:
So it doesn't sound like much of a disclaimer, right?

[00:02:27] Speaker 00:
Because they've actually, while they sit there and they say that you don't want to have a plain old telephone, they go ahead then and they have a particular

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embodiment that they even describe as being part of their invention that uses a plain old conventional telephone.

[00:02:41] Speaker 00:
So how can that be a disclaimer?

[00:02:43] Speaker 00:
I realize I'm just throwing a softball at you.

[00:02:46] Speaker 02:
Thank you, Judge Stoll.

[00:02:46] Speaker 02:
Yes, I would agree with the general premise of your question.

[00:02:50] Speaker 02:
There is the description in column six of each patent of an embodiment of the invention that uses a slightly modified standard telephone circuit.

[00:03:01] Speaker 02:
And I believe because of that description, it would appear that there was not an intention to disclaim devices built using standard telephone circuits.

[00:03:11] Speaker 02:
There's also a description in these patents of using standard 900 megahertz radios to enable the wireless communication between the handset and the base.

[00:03:20] Speaker 02:
And on that basis also, I believe that there's no disclaimer of standard telephone components.

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And then also in the proceedings below before the patent trial and appeal board and before the examiner, there were arguments raised regarding an actual reduction to practice and the evidence put forward there by the patent owner related to modifying commercially available cordless telephones.

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So I think with all of that evidence, the board was certainly within, was correct.

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to conclude that the claims are obvious over the art, which is similar and is using some components from standard telephones.

[00:04:00] Speaker 00:
I would say that we agree with you on that.

[00:04:03] Speaker 00:
But what if I have a concern just about claim seven in the 1757 appeal?

[00:04:11] Speaker 00:
That's the one where the board said that claim seven was not argued separately.

[00:04:17] Speaker 00:
How do you respond to that?

[00:04:19] Speaker 00:
I mean, do we need to remand this?

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for the board to consider Claim 7, or how would you point out to me that that has in fact been, where would you point to to show why that has not been considered or why the board was correct?

[00:04:36] Speaker 00:
And in particular, I look at pages like A4228 and A4229, which I believe is the brief that was before the board,

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in which Claim 7 is identified separately from Claim 1?

[00:04:49] Speaker 02:
Well, I would point first to the statement of the issue that the Patent Owner put before the board.

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And in the statement of the issue, they grouped Claim 7 with Claim 1.

[00:05:00] Speaker 00:
Where is that in the record?

[00:05:02] Speaker 02:
I do not have the direct citation with me on that.

[00:05:07] Speaker 02:
But in their statement of the issue before the board, they grouped the claims together.

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We noted that in our respondent brief,

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And we suggested that claim one, therefore, was an appropriate representative claim.

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And they did not contest that suggestion.

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And they did not mention claim seven in any way in their rebuttal brief.

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I would also point to the board's rules, such as 37 CFR 41.67 C1, which, among other things, the board's rules in handling appellate cases

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requires appellants to identify any claims in a heading that are argued separately.

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And the patent owner in this case did not do that.

[00:05:53] Speaker 02:
There was no heading in their appeal brief highlighting a separate argument with respect to Claim 7.

[00:05:58] Speaker 03:
Well, there really wasn't anything more than a passing reference.

[00:06:02] Speaker 02:
That is correct.

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Claim 7 was only mentioned.

[00:06:05] Speaker 03:
I mean, if there was a full argument and

[00:06:09] Speaker 03:
The first sentence could have been read as a heading, but it wasn't in boldface.

[00:06:13] Speaker 03:
I might have some problems with your argument.

[00:06:19] Speaker 02:
Well, I don't think that an argument was specifically developed for Claim 7 in their appeal brief.

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And so I don't think the Board was wrong to understand that they were not arguing Claim 7 separately.

[00:06:30] Speaker 03:
All I'm saying is I think the Board's citation of the reg was fair under the circumstances,

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will leave for another day, whether it ever gets anywhere else.

[00:06:42] Speaker 02:
Yes, and the patent owner has not directly challenged whether the board's rules regarding representative claims are themselves unfair.

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Because I understand their position, that they feel that they were applied unfairly in this case.

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But the patent owner had their appeal.

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They got to choose their issues.

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They presented their arguments.

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They were not successful.

[00:07:04] Speaker 02:
I don't think that they get.

[00:07:06] Speaker 02:
A remand is necessary for them to come up with new arguments and to have a second appeal to the board.

[00:07:14] Speaker 02:
I don't think that's appropriate.

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And certainly, it's not an efficient use of the board's time or this court's time to rehash arguments over and over and to always get another chance when the first set of arguments are not successful.

[00:07:31] Speaker 02:
There was also an issue raised specifically in the case involving the 371 patent regarding written description rejection.

[00:07:40] Speaker 02:
That rejection was not appealed by the patent owner.

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They appealed instead in enablement rejection, which they had actually overcome.

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So because they did not address the written description rejection of claim 22,

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in their appeal brief, I believe that is way before this court.

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And they also did not appeal an obvious misrejection regarding Claim 22, which stands rejected under Section 103 for obviousness.

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Because they didn't address that rejection, there's another uncontested ground of rejection for Claim 22, which basically moots the appeal of that claim.

[00:08:21] Speaker 02:
So I think a general affirmance is appropriate.

[00:08:27] Speaker 02:
That then is essentially all the issues in these cases, if there are no further questions.

[00:08:31] Speaker 01:
There's no further questions.

[00:08:33] Speaker 01:
Thank you very much.

[00:08:34] Speaker 01:
Thank you.