[00:00:00] Speaker 04:
We have four arguments on the calendar this morning, and the first one is number 168.

[00:00:05] Speaker 04:
161839 in the Honeywell International.

[00:00:11] Speaker 04:
Mr. Molotov.

[00:00:17] Speaker 00:
Please.

[00:00:19] Speaker 00:
Thank you, Your Honor.

[00:00:20] Speaker 00:
May it please the Court, I am Robert Molotov representing Appellant Honeywell International.

[00:00:26] Speaker 00:
Honeywell believes that the Patent Office has violated the law and its own rules when it improperly held an oral hearing and that the board also misunderstood and misconstrued claim terms leading to the decision that the prior art teaches what is claimed in the 948 Patent.

[00:00:44] Speaker 04:
Can I ask you on the oral hearing question?

[00:00:49] Speaker 04:
Suppose that the

[00:00:54] Speaker 04:
or should not have had a hearing.

[00:00:57] Speaker 04:
Where's the prejudice?

[00:00:59] Speaker 00:
The prejudice is the oral hearing really centered around the meaning of the word inform.

[00:01:07] Speaker 00:
And the third party requester talked about this is the crux of the case and actually had an example of informing can be inferential.

[00:01:20] Speaker 00:
And in fact used the example of if I came in from out of the ring

[00:01:25] Speaker 00:
I could tell you it was raining outside, and you would know that.

[00:01:28] Speaker 00:
Or if I came in and I had an umbrella and it was wet, I could also infer that.

[00:01:35] Speaker 00:
And that's fine.

[00:01:36] Speaker 00:
But I'd like to hypothesize, does that tell you that there was a thunderstorm that day?

[00:01:41] Speaker 00:
I don't know if it was lightning.

[00:01:45] Speaker 00:
in the same kind of way one of the... Let me ask the question this way.

[00:01:52] Speaker 04:
If there had been no oral hearing or oral argument and the board had said in its opinion exactly what it did say, would you have had some procedural unfairness, objection

[00:02:13] Speaker 04:
We never heard of this claim construction before or something.

[00:02:17] Speaker 04:
And either, it seems to me, either you would or you wouldn't, but it wouldn't be in any way dependent on whether there had been people standing up at lecterns talking to the board face to face.

[00:02:33] Speaker 00:
Good point.

[00:02:35] Speaker 00:
I believe that while we don't know what all the judges were thinking that day,

[00:02:40] Speaker 00:
You've got to assume that the argument put forth in terms of that claim construction during the argument did have something to do with their decision.

[00:02:52] Speaker 00:
And in that manner, yes, I believe there was harm.

[00:02:57] Speaker 00:
There was indeed a different outcome.

[00:03:01] Speaker 03:
But they had sought that claim construction before the hearing, right?

[00:03:07] Speaker 03:
I mean, before the time of the hearing,

[00:03:09] Speaker 03:
that was the position that they were going to take with respect to the construction of the form.

[00:03:15] Speaker 00:
From the board's standpoint?

[00:03:17] Speaker 00:
Not the board.

[00:03:18] Speaker 00:
Okay, excuse me.

[00:03:20] Speaker 00:
From the other side.

[00:03:21] Speaker 00:
Yes, absolutely, Your Honor.

[00:03:24] Speaker 00:
I agree.

[00:03:25] Speaker 00:
Because they took that position, I think it's a very superficial kind of position.

[00:03:31] Speaker 00:
because if you look at claim seven that the board talked about a lot it was regards to an over controlling set point which says that I have a temperature and let's say it's 66 degrees and I set the thermostat to be 69 degrees and so I want it to get warmer faster so I'm going to go and set it up to 75 and

[00:04:00] Speaker 00:
What the Patent Office and third party request were trying to say is, well, if the time on the display does not change, that that infers the outcome, I won't get hotter and faster.

[00:04:13] Speaker 00:
And that's wrong.

[00:04:14] Speaker 03:
Now, the board had an alternative ground for

[00:04:18] Speaker 03:
obviousness as well, didn't it?

[00:04:20] Speaker 03:
It said that because the prior art recognized the same problem, one of ordinary scaling art would have been motivated to inform even under the way you have construed inform.

[00:04:35] Speaker 03:
Is that right?

[00:04:36] Speaker 00:
Not totally.

[00:04:38] Speaker 00:
What that construction said is that, again, the prior art talks about time to temperature.

[00:04:48] Speaker 00:
And that's what Nipon Denso talked about.

[00:04:51] Speaker 00:
It's a time to temperature.

[00:04:52] Speaker 00:
How long will it take to get there?

[00:04:55] Speaker 00:
And again, I think we've got to go a little further that says I have to, in my claim, I am not informing the user just about any time to temperature.

[00:05:08] Speaker 00:
but I'm informing the user that if I do an over-controlling set point, I definitely will not change how fast I'll get there.

[00:05:20] Speaker 00:
And I guess my point is that as an example, let me do an example that might clarify this.

[00:05:28] Speaker 00:
If I have a heat pump at home, which we probably do, and again I do this over-controlling set point and I want it to get faster, hotter,

[00:05:39] Speaker 00:
What the board is saying is that, again, I won't get there any faster if I set it up to a real high temperature.

[00:05:45] Speaker 00:
That's not true.

[00:05:46] Speaker 00:
It's not true in all cases.

[00:05:50] Speaker 00:
My system at home, if you do that, the heat pump comes on, and then if it's a high enough set point, it actually kicks in the electric heaters in addition to the heat pump.

[00:06:02] Speaker 00:
And guess what?

[00:06:03] Speaker 00:
I get to that intermediate set point faster.

[00:06:08] Speaker 00:
And that's the kind of difference, that you can't just have an inferring that says, one thing, you have to have a message.

[00:06:17] Speaker 00:
And that's what all of the claims talk about, is not just informing the user, but informing the user with a message of a specific action.

[00:06:26] Speaker 04:
Does any of the prior art that the board relied on make the point which, at

[00:06:36] Speaker 04:
least to a complete lay person in particular perhaps when standing in front of.

[00:06:42] Speaker 04:
Are they still round?

[00:06:45] Speaker 00:
They have squares, too.

[00:06:47] Speaker 04:
The thermostat would not find it self-evident that if I want to get to, what were we trying to get, 69?

[00:06:56] Speaker 04:
69.72, yes.

[00:06:58] Speaker 04:
You said at 82, I won't get to 69 any faster.

[00:07:02] Speaker 04:
Right.

[00:07:03] Speaker 04:
I don't know.

[00:07:04] Speaker 04:
Correct.

[00:07:05] Speaker 04:
Maybe there's a slowdown at the end or something, the way if you want to get to arrive at a certain point,

[00:07:11] Speaker 04:
Two, you may want to aim for point three so you're still going at 60 miles an hour and you get to point two or something like that.

[00:07:20] Speaker 04:
So it doesn't seem to me self-evident to at least this lay person.

[00:07:24] Speaker 04:
Is there any art that specifically says this?

[00:07:29] Speaker 00:
No, all of the art again talks only about this time to temperature

[00:07:34] Speaker 00:
component and that was fairly well known.

[00:07:38] Speaker 00:
I have a set point and I will get there in

[00:07:43] Speaker 04:
However many minutes, but the example that you've just talked about no the art does not go there The examiner did say is that right that it was inherent in a longer time to get to the unduly High let's say set point a longer time to get to the intermediate actual desire one that it was inherent and

[00:08:09] Speaker 04:
And although, and I will say, I think that the page on which the examiner said that is not in the joint appendix.

[00:08:16] Speaker 04:
We all experienced some frustration at the thinness of the joint appendix, not finding materials that we wanted to look at, including a complete copy of Nippon Densha, which made it a little bit hard to read Nippon Densha because the figures weren't there.

[00:08:31] Speaker 04:
But the board quoted the examiner, right?

[00:08:35] Speaker 04:
in the right of appeal notice as saying something about inherent.

[00:08:42] Speaker 00:
Yes, but it also relied on the fact that the system, one of the quotes was, the system is only an on-off type HVAC system.

[00:08:56] Speaker 00:
That I either am cooling or I'm not.

[00:09:00] Speaker 04:
Right, but when the examiner said,

[00:09:02] Speaker 04:
that this no change in amount of time to get to the intermediate desire point that that's inherent in I forget which piece of art he was talking about maybe Nippon Dessert.

[00:09:15] Speaker 04:
I think it was Nippon Dessert.

[00:09:18] Speaker 04:
Did you then and if so where in the joint appendix argue to the board that that inherency finding was incorrect and on what factual basis?

[00:09:32] Speaker 00:
I will get the exact page number.

[00:09:38] Speaker 00:
I don't have that here in front of me, but yes, I agree with you.

[00:09:48] Speaker 00:
Okay, that is correct.

[00:09:59] Speaker 04:
Are there particular claims you want to say, a word about, to highlight?

[00:10:02] Speaker 04:
There are a lot of claims, and you don't have time to do everything.

[00:10:05] Speaker 00:
Correct.

[00:10:07] Speaker 00:
Again, I think the prior art, again, talks about this time-to-temperature concept, whereas in claim seven, as we've talked about, there's this informing the user that the third over-controlling point will not decrease the amount of time needed to achieve the second desired set point.

[00:10:24] Speaker 00:
We've talked about that.

[00:10:25] Speaker 00:
I believe that is a very clear differentiator from all of the art

[00:10:29] Speaker 00:
We also talk about providing the message during an amount of time.

[00:10:33] Speaker 00:
Talking about at a first initial set point over to a second set point during that amount of time is when we inform the user that is absent in the yards.

[00:10:44] Speaker 00:
And also talk about a first set point, which is one of a plurality of scheduled set points.

[00:10:49] Speaker 00:
So we're talking about some of the art talks about an ambient temperature.

[00:10:55] Speaker 00:
And the board argues that an ambient temperature could be a first set point.

[00:10:59] Speaker 00:
It is not.

[00:11:00] Speaker 00:
The claim talks about specific starting from a set point.

[00:11:04] Speaker 00:
and displaying that kind of information along with the message.

[00:11:08] Speaker 00:
So there are a number of points.

[00:11:10] Speaker 00:
And as you can see, Your Honor, there are a lot of claims here.

[00:11:13] Speaker 04:
And you are into your rebuttal now.

[00:11:16] Speaker 04:
So if you want to save the rest, OK.

[00:11:18] Speaker 00:
We'll see you in a few minutes.

[00:11:19] Speaker 00:
Thank you very much.

[00:11:27] Speaker 04:
Ms.

[00:11:27] Speaker 04:
Schoenfeld?

[00:11:31] Speaker 01:
I'm going to respond first to their oral argument.

[00:11:39] Speaker 01:
The first point that I wanted to make is that the board, if we look at A9 of the board's decision, the board specifically says that any arguments not included in the briefs will be refused consideration by the board.

[00:12:00] Speaker 01:
So the board is clearly saying that they did not rely on anything outside of the briefing.

[00:12:04] Speaker 01:
So there is no reason to say that there was something brought up at the hearing that wasn't part of the record.

[00:12:14] Speaker 01:
And as was pointed out, the discussion of the hearing was about the claim construction that was already brought forth.

[00:12:21] Speaker 01:
I mean, the second point I also wanted to make about the oral hearing is that Honeywell received the notice

[00:12:29] Speaker 01:
of hearing and they also received Ness' response to that.

[00:12:35] Speaker 01:
So they should have known that the hearing was going to take place on that date because they knew that Ness had responded.

[00:12:42] Speaker 01:
And then the third point I wanted to make about the oral hearing is that it's not against the board rules to have

[00:12:52] Speaker 01:
the parties, you know, to have the third party respond.

[00:12:57] Speaker 01:
You know, the 4173D allows a party to respond and say that they want to participate.

[00:13:04] Speaker 01:
And actually the MPEP section that they cite to, 1209, which says that a hearing will be canceled,

[00:13:15] Speaker 01:
if an appellant waives is not relevant to interparties re-exam.

[00:13:20] Speaker 03:
Actually... What is the MPEP section that relates to interparties re-exam?

[00:13:24] Speaker 03:
That section relates to ex-party waives.

[00:13:26] Speaker 01:
Right.

[00:13:26] Speaker 01:
So it's 2680, oral hearing, and that section, 2680 of the MPEP, does not mention this waiver.

[00:13:35] Speaker 01:
It just gives the rule, and it doesn't say anything about that inter-appellant waives.

[00:13:41] Speaker 01:
It doesn't have that statement that they relied on.

[00:13:43] Speaker 01:
in their reading.

[00:13:45] Speaker 01:
So yeah, again, that's MPP 2680.

[00:13:49] Speaker 01:
So there's no indication at all that the hearing was against the rules.

[00:13:55] Speaker 03:
So they just waived their hearing attendance.

[00:13:58] Speaker 03:
Is that right?

[00:13:58] Speaker 03:
They didn't cancel the hearing.

[00:14:00] Speaker 03:
They just waived their attendance.

[00:14:02] Speaker 01:
Right.

[00:14:02] Speaker 03:
They just waived their attendance.

[00:14:03] Speaker 03:
That's correct.

[00:14:04] Speaker 02:
Yeah.

[00:14:04] Speaker 02:
Michelle, if I have one question.

[00:14:06] Speaker 02:
You said what happened here is Honeywell requests a hearing.

[00:14:09] Speaker 02:
Then they say, no, we don't want it.

[00:14:11] Speaker 02:
We're not going to appear to hearing.

[00:14:12] Speaker 02:
Right.

[00:14:12] Speaker 02:
And the other side comes in and says, we want to appear.

[00:14:16] Speaker 02:
Correct.

[00:14:17] Speaker 02:
At that point, could Honeywell have changed its mind and said, oh, well, since the other side, the requester is coming in, we want to, or the petitioner is coming in, we want to be heard?

[00:14:27] Speaker 02:
Could they have come back and changed their mind?

[00:14:29] Speaker 01:
I believe so.

[00:14:30] Speaker 01:
I mean, they had already paid the fee, and they had already filed the notice requesting.

[00:14:35] Speaker 01:
And as long as the hearing was proceeding, I don't see any reason, or I

[00:14:41] Speaker 01:
or in the rules, or anything why they couldn't then attend the hearing.

[00:14:45] Speaker 04:
Can I ask you, I guess, to talk to me about what was indicated in my first question to Mr. Mollitorz about prejudices?

[00:14:53] Speaker 04:
It seems that I'm having a little trouble getting my mind around the idea that a little bit more process would somehow be harmful.

[00:15:02] Speaker 04:
And so unless there are some new, otherwise unnoticed

[00:15:10] Speaker 04:
basis for decision that came out of it, which is not being urged.

[00:15:15] Speaker 04:
So all this effort that's gone into parsing the rules and the MPEP about whether a hearing had to be held, it seems, I guess, a little hard for me to understand what the point of this all is.

[00:15:28] Speaker 01:
I do agree with you.

[00:15:29] Speaker 01:
I think it's hard.

[00:15:30] Speaker 01:
It's a hard argument to make.

[00:15:31] Speaker 01:
that due process is being denied to them by another side being heard.

[00:15:36] Speaker 01:
I don't think that's a due process violation.

[00:15:38] Speaker 01:
I guess we are just responding to the arguments that they made, but I agree with your point.

[00:15:46] Speaker 04:
Can you address Nippon Dense?

[00:15:51] Speaker 04:
I guess two things.

[00:15:52] Speaker 04:
Sure.

[00:15:53] Speaker 04:
I, at least on the basis of my attempt to read Nippon Dense, the portion of it that's in the Joint Appendix,

[00:16:02] Speaker 04:
was not seeing that it said what the, I guess the board says it said at appendix 13, namely that it showed

[00:16:22] Speaker 04:
these two different set points, one the desired one, the other the overshot, overshooting one, and that it's somehow communicated, if only by some kind of static display, that you don't get to the desired one by overshooting it.

[00:16:44] Speaker 01:
Right.

[00:16:44] Speaker 01:
I agree with you that there's no explicit disclosure about, you know, because for Nipondenso, you have

[00:16:52] Speaker 01:
You put in the set point.

[00:16:54] Speaker 01:
The Nippon Densho does recognize the same problem.

[00:16:57] Speaker 01:
It talks about how you don't.

[00:17:00] Speaker 04:
Your principle, your primary, as your first argument in your green brief on this, it recognizes the problem.

[00:17:08] Speaker 04:
And once you recognize the problem, any idiot knows what you do about it.

[00:17:12] Speaker 04:
Tell people that they're being stupid by thinking it's going to get to their desired point faster.

[00:17:18] Speaker 04:
But then you kind of back into what I think is a sentence in your brief that says, the abundance of means of informing the user is to display the time that it will take to reach the second actually desired set temperature and allow the user to infer that because this time has not changed,

[00:17:37] Speaker 04:
over controlling to a third set temperature, the overshooting one, does not accelerate system operation.

[00:17:42] Speaker 04:
And you cite page 569, which I think is page 54 of ENSO column one.

[00:17:50] Speaker 04:
Can you show me where on that column it says what your sentence describing it says it says?

[00:17:57] Speaker 01:
I agree.

[00:17:58] Speaker 01:
The sentence describing it does require an inference.

[00:18:01] Speaker 01:
So I think what happens

[00:18:04] Speaker 01:
with Nippon Denso is you'll put in the new temperature and it will tell you and the new temperature because it is an on-off feature the new temperature will be you know above what the old I mean sorry the new time would be above what the old time was prior

[00:18:25] Speaker 01:
So there is this inference that you would make.

[00:18:27] Speaker 01:
So you would know.

[00:18:28] Speaker 04:
I don't know if you can.

[00:18:30] Speaker 04:
If you can't, that's fine, I think.

[00:18:32] Speaker 04:
But where is there anything here about one set temperature and a time and another set temperature and a time?

[00:18:43] Speaker 04:
I don't see more than one set temperature and a time.

[00:18:45] Speaker 04:
I don't see two of them.

[00:18:47] Speaker 04:
and it really could be me.

[00:18:49] Speaker 04:
That's what I'm trying to understand.

[00:18:50] Speaker 01:
Right.

[00:18:51] Speaker 01:
No, I mean, I agree with your reading.

[00:18:53] Speaker 01:
Like, Nippon Dento says, you know, it generates the time data and it, you know, calculates the time until the cabin is going to reach that pressure, I mean, that temperature.

[00:19:03] Speaker 01:
You know, it doesn't

[00:19:07] Speaker 01:
It gives you the new time to temperature when you put in the new temperature.

[00:19:12] Speaker 04:
So I think I do agree with your reading, but I think the board... But the reason I guess it felt a little significant is that the big claim construction dispute was about whether the claim language covered the situation where you have a displayed time to get to set point number one, which is the second set point in a little bit.

[00:19:35] Speaker 04:
the first one you actually put in.

[00:19:37] Speaker 04:
And then you put in a second one, and that display doesn't change.

[00:19:42] Speaker 04:
So it tells you by silence that even though you've now said, I want to actually get to 84 degrees if we're going up, and I really, really want to get only to 69 degrees, that it still has a 69 degree time on the display.

[00:19:57] Speaker 04:
And that's enough to tell you you haven't changed the time.

[00:20:00] Speaker 04:
But I don't see that that has anything to do with what's going on in Nippon Dense.

[00:20:05] Speaker 01:
Well, the time would automatically be larger.

[00:20:09] Speaker 01:
So when you put in the 84, it would tell you, let's say to get to 69, it would say, oh, it's going to take 10 minutes.

[00:20:15] Speaker 01:
When you put in 84, it would tell you, oh, now it'll take 22 minutes.

[00:20:20] Speaker 01:
So that's where the inference comes in.

[00:20:22] Speaker 01:
Then you're inferring, well, OK, it's now going to take much longer.

[00:20:25] Speaker 04:
But that doesn't have anything to do with this claim construction dispute.

[00:20:28] Speaker 04:
which I thought was about what happens when you simply leave the old time displayed.

[00:20:34] Speaker 04:
That tells you that the action you took to overshoot hasn't changed the old time to get to the actually desired.

[00:20:41] Speaker 01:
I mean, I think it does, because the claim dispute, you know, the examiner found, well, A, that informing a user doesn't have to require a specific method, and that also, you know, there's a statement that the time not decreasing

[00:20:57] Speaker 01:
you know, leads to an inference that the amount of time, so like I guess if we go to 12, appendix 12, as Requestor pointed out, informing a user of an ordinary intelligence that a time to temperature will increase where a third over controlling set point would also inform the user that the third over controlling set point will not decrease the amount of time needed to achieve a previous set point.

[00:21:23] Speaker 01:
That's what the board found, and that's where the inference comes in.

[00:21:27] Speaker 04:
Well, what's the basis for that?

[00:21:28] Speaker 04:
Now I think we're coming either to or near to this examiner statement about inherency.

[00:21:36] Speaker 04:
Why should any normal layperson know that that's true?

[00:21:43] Speaker 04:
What's the basis for that?

[00:21:44] Speaker 01:
I mean, the third party did submit a declaration of an expert who made that conclusion.

[00:21:54] Speaker 01:
because Nipondento does recognize the same problem, you would say that, you know, it would be, you know, that's what they're trying to get at as well.

[00:22:06] Speaker 03:
Are you referring to the PEPFER declaration?

[00:22:08] Speaker 03:
Yes.

[00:22:09] Speaker 03:
Is there a particular page that we should look at?

[00:22:22] Speaker 03:
That's not in the joint appendix.

[00:22:24] Speaker 01:
Right.

[00:22:25] Speaker 01:
I recognize that.

[00:22:35] Speaker 01:
I know the board had pointed to the declaration as well.

[00:23:01] Speaker 01:
Okay, yeah, so I think the declaration paragraph 32 What pages?

[00:23:13] Speaker 03:
It's not in the appendix.

[00:23:14] Speaker 03:
Right, it's not in the appendix.

[00:23:18] Speaker 04:
But that paragraph was cited at the top of the appendix.

[00:23:22] Speaker 01:
Right.

[00:23:24] Speaker 01:
The board cited it when they found that

[00:23:28] Speaker 04:
And it cites it as being cited by the third party requestor's response brief at four or five.

[00:23:34] Speaker 04:
Is that in the Joint Appendix?

[00:23:37] Speaker 01:
It's not, I believe.

[00:23:46] Speaker 01:
But I think, I guess this also relates to the board's alternative finding that it would be obvious to

[00:23:58] Speaker 01:
have an explicit message once Nipondenso recognized that the problem, it is an obvious misrejection.

[00:24:08] Speaker 04:
If people don't know something, tell them.

[00:24:10] Speaker 01:
Right, yeah.

[00:24:19] Speaker 01:
If there are no further questions, I'll re-address them.

[00:24:22] Speaker 04:
Thank you.

[00:24:42] Speaker 04:
Oh, please go.

[00:24:43] Speaker 04:
Yes, I'm sorry.

[00:24:45] Speaker 00:
Back to your honor's question about inherency.

[00:24:47] Speaker 00:
I believe we should look at the intervener's brief at page 23, where they talked about, once the problem of over-controlling is identified and defined, and it is by Nipon Denso, it becomes blazingly obvious to solve the problem.

[00:25:04] Speaker 00:
The blazingly obvious theorem I'm not quite familiar with.

[00:25:10] Speaker 00:
The Nippon Denzo's solution to this is a time to temperature.

[00:25:14] Speaker 00:
Back to it is simply a time to temperature.

[00:25:18] Speaker 00:
And that is not, especially what claim seven is talking about, that Your Honor talked about.

[00:25:23] Speaker 00:
I'm talking about two different settings.

[00:25:25] Speaker 04:
But put aside the originality of the term blazing, at least relatively speaking, in this court.

[00:25:35] Speaker 04:
Why isn't it lazily obvious?

[00:25:37] Speaker 04:
Once the prior art says, there are a lot of people out there that are over-controlling of a simply false assumption, because how would they know that you don't get to where you want to get to any faster.

[00:25:51] Speaker 04:
So why isn't it lazily obvious?

[00:25:53] Speaker 04:
Tell them to stop it.

[00:25:55] Speaker 00:
It isn't lazily obvious because it depends upon the system.

[00:25:59] Speaker 00:
and back to my heat pump example.

[00:26:01] Speaker 04:
Okay, so where it's not, where it is false, why isn't it, this is obviously not going to lie to them, so this is for systems in which, that are set up in such a way that you really don't get to where you want to go by overshooting the mark.

[00:26:18] Speaker 04:
And you want to tell the users, you may think that you do, but you're wrong, don't, so tell them.

[00:26:25] Speaker 04:
Right, so tell them.

[00:26:26] Speaker 04:
What's the,

[00:26:27] Speaker 04:
But once you recognize that people are operating under a frequently false assumption, what's not blazingly obvious about the solution?

[00:26:37] Speaker 04:
Tell them that the assumption is wrong.

[00:26:39] Speaker 00:
Well, in NEPA and DENSO, instead of saying that message of you're wrong, you're not going to get there any faster, it simply gives a time.

[00:26:49] Speaker 04:
Right, but this is at least the not terribly featured point of the board, but now featured defense of the board by the director that says, once you recognize the problem, there is just no work left to do in identifying this solution, even if Nitpam Denso doesn't identify that solution.

[00:27:14] Speaker 00:
If I understand your point correctly, again,

[00:27:19] Speaker 00:
Recognizing the problem, I think, goes back to, again, what kind of a system you have and what that solution is.

[00:27:33] Speaker 00:
But I indeed see your point.

[00:27:38] Speaker 00:
I guess if I can, I'd like to, I only have a minute left, touch upon the 37 CFR 4173B and D.

[00:27:48] Speaker 00:
4173B talks about first requiring that the appellant or respondent request the oral hearing.

[00:27:57] Speaker 00:
Yes, that's what Honeywell did.

[00:28:00] Speaker 00:
And then we got the notice of hearing, which states that you must, if you're no longer interested in participating in the oral hearing, you must file a waiver.

[00:28:11] Speaker 00:
And this allows the panel to promptly act

[00:28:14] Speaker 00:
on the appeal without waiting for the oral hearing date.

[00:28:21] Speaker 00:
So that says, like we did when we sent in the waiver and said cancel the oral hearing, that the board can therefore promptly act on the appeal without waiting.

[00:28:33] Speaker 03:
What did you think when you received

[00:28:35] Speaker 03:
the opposing party's paper saying that they wanted to have a hearing and they submitted the fee and they gave you notice of that paper.

[00:28:44] Speaker 00:
Well that was actually the day after that we canceled so I assumed it was ship's crossing in the night kind of thing that they just somebody filed it and you know.

[00:28:58] Speaker 03:
But what about the fact that you didn't cancel it?

[00:29:01] Speaker 03:
I mean if you look at the box that you checked it says that you

[00:29:04] Speaker 03:
Hearing attendance waived.

[00:29:06] Speaker 03:
It doesn't say hearing canceled.

[00:29:09] Speaker 03:
I do my cancel the hearing.

[00:29:11] Speaker 00:
That's the only box that is available to select.

[00:29:15] Speaker 03:
I understand.

[00:29:16] Speaker 03:
But what I mean by that is what I would have understood from that is that I'm waiving my right to be present at a hearing, not that I have the right to cancel.

[00:29:23] Speaker 03:
Particularly when the opposing party then says that we want to have a hearing and face the required fee.

[00:29:29] Speaker 00:
But initially, when within two months after the examiner's answer to request an oral hearing, we requested it, NEST did not.

[00:29:41] Speaker 00:
So it wasn't a matter of a cross-appeal.

[00:29:43] Speaker 00:
And I guess that's where I think MPP 1209 is not exactly on point, but it's analogous in the sense of... It makes sense that it would be written that way in an ex parte appeal because there is nobody else who would be present to be insecure.

[00:30:00] Speaker 00:
Except the examiner in both cases.

[00:30:02] Speaker 00:
The examiner could testify under 1209 ex parte.

[00:30:07] Speaker 00:
for the Patent Office.

[00:30:09] Speaker 00:
And in much the same way here, since Ness did not do a cross appeal, it tends to be or look like an ex parte in the sense of they wanted to participate in the oral hearing.

[00:30:22] Speaker 00:
They didn't request it.

[00:30:24] Speaker 00:
And reading that, I guess, any other way doesn't make sense with the notice of hearing that says the panel will promptly act on the appeal without waiting.

[00:30:36] Speaker 03:
I wonder about Section 37 CFR 41.73D, which specifically says that after the notice is sent, then you can make a request for oral hearing.

[00:30:49] Speaker 00:
At that point, you can pay the fee to participate.

[00:30:51] Speaker 00:
To participate.

[00:30:52] Speaker 00:
But if the hearing has been waived by appellant without a cross appeal, there's nothing to participate in.

[00:31:01] Speaker 00:
Thank you very much.

[00:31:01] Speaker 04:
Thank you.

[00:31:02] Speaker 04:
Thank you.

[00:31:03] Speaker 04:
The case is submitted.