[00:00:15] Speaker ?: I'm sorry. [00:00:46] Speaker 02: All rise. [00:00:53] Speaker 01: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:59] Speaker 01: God save the United States and this honorable court. [00:01:02] Speaker 02: Thank you. [00:01:03] Speaker 02: Be seated. [00:01:03] Speaker 02: OK. [00:01:09] Speaker 02: The first argued case this morning is number 1614 [00:01:14] Speaker 02: 13, Lunari Incorporated against Mattel. [00:01:18] Speaker 02: Mr. Abbott. [00:01:22] Speaker 00: Good morning, Your Honor. [00:01:23] Speaker 00: Good morning. [00:01:42] Speaker 00: Your Honor, an extraordinary amount of diligence has gone into confirming the patentability of the 035 patent. [00:01:48] Speaker 00: Two years of prosecution and its original prosecution, two years of next-party re-examination in which the three original claims were confirmed and 21 new claims were added. [00:02:01] Speaker 00: In addition to that, there has been almost 10 years' worth of litigation in the Eastern District of Texas on this patent. [00:02:07] Speaker 00: In connection with that litigation, there's been two claim construction hearings [00:02:10] Speaker 00: There's been one claim construction ruling, and my client, Lunar Eyes, overcome one summary judgment on indefiniteness. [00:02:18] Speaker 00: So there's been an extraordinary amount of time by the PTO and the district court with respect to this patent. [00:02:26] Speaker 00: Until we get to the PTAB, when we get in front of the board, Your Honors, we are facing something where we've come full circle. [00:02:36] Speaker 00: And what we have now in the briefings today and the written decisions by the board is exactly what Lunari's been arguing all along, that the seminal references in this case, Encore and Lewis, do not in fact explicitly disclose what we've characterized as the data selecting and the data reordering elements. [00:02:57] Speaker 00: And so there was no evidence presented by the petitioner on that. [00:03:04] Speaker 00: The petitioner in their petition raised that very issue. [00:03:08] Speaker 00: Both Mohan and Lewis explicitly disclosed those limitations. [00:03:14] Speaker 00: And what the board ultimately concluded in both IPRs was something that was never briefed, argued, discovered, or tried before the PTAT, and that was both Lewis and Encore [00:03:29] Speaker 00: would reasonably suggest, would teach or reasonably suggest to a person of an ordinary skill in the art that they could be modified to achieve the claim data selecting and data rewording elements. [00:03:40] Speaker 04: Now, does all of this though turn on your prevailing on the claim construction argument? [00:03:46] Speaker 00: In part, Your Honor, and I have three or four main arguments, one of which, the first of which is claim construction. [00:03:54] Speaker 00: We believe that the board misconstrued at least the data selecting element, the data selecting device, the term reorders. [00:04:05] Speaker 00: And they also ignored two separate terms interrelated to that, one being produce, produces or producing, depending upon the independent claim language we're looking at, and what a location signal is. [00:04:19] Speaker 00: And so by those two terms, those produce, [00:04:21] Speaker 00: And location signal weren't directly before the board. [00:04:24] Speaker 00: They were certainly relevant to these constructions of data selecting device and reorders. [00:04:29] Speaker 00: So in addition to claim construction, Your Honor, and a very, very significant important error that they committed was that they misunderstood or misinterpreted the basic GPS technologies and science behind this, which is resided in Encore itself. [00:04:49] Speaker 00: So they ignored that. [00:04:50] Speaker 00: The third point, Your Honors, they misread Encore and they misread Lewis. [00:04:55] Speaker 00: And fourthly, to wrap everything up, they rendered these conclusory opinions with respect to these ultimate conclusions on Encore and Lewis, and that they would teach or reasonably suggest to one or more new school in the art that they could be modified. [00:05:09] Speaker 00: And these conclusions that I'll point out to you today, I'm sure you may have some questions on it. [00:05:15] Speaker 00: Again, they weren't in the four corners of the petitions. [00:05:18] Speaker 00: They weren't discovered. [00:05:20] Speaker 00: They weren't tried before the PTAB. [00:05:22] Speaker 00: And these are all, after the fact, hindsight arguments that were essentially created out of whole cloth and completely contradict, in some instances, both parties' experts. [00:05:34] Speaker 04: Well, do you have to win on every single one of those arguments? [00:05:38] Speaker 00: No, Your Honor. [00:05:39] Speaker 00: I don't believe that's the case. [00:05:40] Speaker 00: I don't believe that's the case. [00:05:41] Speaker 00: I think that any one of those arguments will put us where we want to be, and that that [00:05:47] Speaker 00: that this matter should be reversed and rendered, not remanded, but rendered in this instance. [00:05:52] Speaker 00: Because if you were to remand, there's no evidence, there's no grounds for what the board ultimately held with respect to this combination, or this teaching, or reasonable suggestion. [00:06:04] Speaker 00: So it's not even part of the grounds, and there's no evidence on it before the board. [00:06:08] Speaker 04: So we need, with respect to, let's go to data selector. [00:06:15] Speaker 04: Yes. [00:06:15] Speaker 04: Do you have to? [00:06:17] Speaker 04: Do we have to find disclaimer in order for you to prevail on that? [00:06:22] Speaker 00: Yes, Your Honor. [00:06:23] Speaker 00: I believe that's the case. [00:06:24] Speaker 04: But how do I do that when you're actually asking us to find an implicit disclaimer? [00:06:30] Speaker 04: And there are all kinds of places in the specification where you refer to examples and preferably, and you even refer to alternative embodiments. [00:06:40] Speaker 04: How do I find a disclaimer? [00:06:42] Speaker 00: Your Honor, I think the language of the specification itself and what [00:06:47] Speaker 00: when read in view of the claims. [00:06:48] Speaker 00: I mean, if you look as a representative claim, claim three, paragraph one talks about the location signal generating device. [00:06:55] Speaker 00: In other words, a GPS receiver, which Encore is. [00:06:59] Speaker 00: Your Honor, the GPS receiver in Encore, that is limitation one, paragraph one. [00:07:07] Speaker 00: We don't dispute that. [00:07:08] Speaker 00: What we do dispute is what is not in the Encore and the data selecting device there, because [00:07:17] Speaker 00: As the appendix points out, at 931, we have a separate system controller that's outside of Enfor. [00:07:24] Speaker 03: Do I understand your disclaimer argument to be relying on, it's a specification disclaimer argument, relying on column 7, lines 4 through 20? [00:07:32] Speaker 00: Yes, yes. [00:07:33] Speaker 03: How does that language in column 7, lines 4 through 20 constitute a disclaimer? [00:07:37] Speaker 00: Well, it tells you what the GPS receiver does. [00:07:40] Speaker 00: It outputs the signal. [00:07:42] Speaker 00: And we make no bones about it. [00:07:44] Speaker 00: The invention says that you can use a commercially available off-the-shelf GPS receiver like the Motorola Encore, which interestingly enough is the same family of GPS receivers that's in the Encore reference. [00:08:01] Speaker 00: And so we can use that. [00:08:03] Speaker 00: We can use any other commercially available. [00:08:05] Speaker 03: But how does that say, don't use that as the selection means? [00:08:10] Speaker 03: I mean, that's what I think your disclaimer argument is. [00:08:13] Speaker 03: Right. [00:08:13] Speaker 03: And I don't see that in the plain text. [00:08:16] Speaker 00: Well, and that may just be a difference of opinion on our part. [00:08:20] Speaker 00: We see that the signal is output. [00:08:22] Speaker 00: And it's produced by virtue of claim one of, I'm sorry, claim three, paragraph one. [00:08:28] Speaker 00: The location signal generating device produces the signal. [00:08:32] Speaker 00: So it's output. [00:08:35] Speaker 00: the column you're referring to, the excerpt you're referring to, says it outputs the signal. [00:08:39] Speaker 00: And then right after the discussion of GPS receivers, it talks about selecting less than all and reordering. [00:08:45] Speaker 03: I guess maybe the question is, because it says, for example, it could work this way, or here is an example, and it doesn't have this part of the specification, does not include the kind of language that we would ordinarily see in a disclaimer case where it says, in this invention, [00:09:03] Speaker 03: the selection cannot be by the Motorola Encore product, for example. [00:09:10] Speaker 00: Right. [00:09:10] Speaker 00: It is not a bright line express disclaimer. [00:09:13] Speaker 00: But I think that if you look at it in view of the other figures, say, for example, figures two, figures five, and figures nine, where we show the output of the GPS receiver going to a separate controller and then modifying that sentence and then a separate signal comes out after it's been parsed and reordered, that further buttresses the argument [00:09:33] Speaker 00: that what we're talking about here is simply commercially available GPS receivers that may be used for the GPS receiver limitations, not so much the data selecting limitations. [00:09:45] Speaker 00: And there's good reason for that, as one ordinary skill in the art would understand, as well as what the inventor understood, is that the GPS receiver, the Encore receiver, or any other GPS receiver at the time, does not recycle NMEA messages such that it takes the data [00:10:02] Speaker 00: that it produces to the outside world or is intended to produce to the outside world for further processing, as we claim. [00:10:11] Speaker 00: It does not take that data and recycle it or reprocess it to come up with a separate data. [00:10:17] Speaker 04: So are you saying that the embodiments shown in the specification, even if it's not listed as the present invention or you don't have any of that language, [00:10:29] Speaker 04: that just because those are the embodiments shown that that constitutes a disclaimer? [00:10:34] Speaker 00: Well, Your Honor, I think when you look at the specification in view of the claims themselves, that that's where we get the disclaimer. [00:10:42] Speaker 00: And I will agree, it's not an express disclaimer. [00:10:45] Speaker 00: It does not say, this is not a data-selecting device. [00:10:49] Speaker 04: And part of your problem is that the standard that we're looking at here, it might be true that if we were under Phillips, that [00:10:59] Speaker 04: You could say, well, the most reasonable reading of this is to say that these embodiments are really what they're talking about. [00:11:07] Speaker 04: But when you're talking about the broadest reasonable interpretation, you've got a different animal. [00:11:13] Speaker 00: Understood, Your Honor. [00:11:14] Speaker 00: But I think that the broadest reasonable interpretation must still be reasonable in view of both the intrinsic evidence as well as the extrinsic evidence. [00:11:22] Speaker 00: And the evidence that we do have on this [00:11:25] Speaker 00: is from Gordon Howard, the petitioner's own expert, our expert, and the board. [00:11:30] Speaker 00: And that is that the Encore reference, the GPS receiver reference we're talking about, did not, in fact, further process a NMEA sentence once it was originally ordered. [00:11:40] Speaker 00: It did not recycle those students. [00:11:42] Speaker 03: That's a different argument, as I understand it. [00:11:44] Speaker 03: Now you're talking about a substantial evidence question, whether the prior art meets the limitation, not a claim construction issue. [00:11:52] Speaker 00: Well, I think [00:11:54] Speaker 00: To some extent, I certainly agree with that. [00:11:57] Speaker 00: But I do think that the way that the court has construed reorders, or I'm sorry, the board has construed reorders, brings us right back into claim construction. [00:12:06] Speaker 00: They gave short shrift to our proposal that there must be an original order of data before it's reordered as the claims require. [00:12:15] Speaker 00: And so they just did a passing glance. [00:12:17] Speaker 00: We don't even need to address that. [00:12:18] Speaker 00: And that's what we've asked this court for is to say, [00:12:21] Speaker 00: we need an original order here so that it can be read against this prior art, whether it be Encore or Lewis, to establish that there was no original order that was subsequently parsed by the data selector and then reordered. [00:12:35] Speaker 00: So I think it dovetails both issues, both the claim construction issue as well as the few characterizations of St. [00:12:44] Speaker 00: Joe Leavitt's issue. [00:12:46] Speaker 00: And so in addition to that, I think that it's imperative for [00:12:51] Speaker 00: court to understand, to look at this on-floor reference and what it does to you. [00:12:56] Speaker 00: And at 931, it talks about, of the on-floor manual, it talks about that this is in fact a device that is part of an overall system. [00:13:08] Speaker 00: It is merely a GPS receiver. [00:13:10] Speaker 00: It receives signals, it reports those signals. [00:13:13] Speaker 00: It talks about the RS-232 that transmit the processed, not the mainstream, that's processed in its first instance. [00:13:20] Speaker 00: to the outside world to a separate system controller, which is what Encore calls it. [00:13:26] Speaker 00: And that system controller falls right into where our second paragraph of claim three is. [00:13:32] Speaker 00: That is our data selector. [00:13:34] Speaker 00: What is not described in Encore is what processing occurs. [00:13:38] Speaker 04: So are you saying that this reordering means that in order for [00:13:47] Speaker 04: Encore to teach any of this, that Encore has to order the data in exactly the same way? [00:13:53] Speaker 00: No, it doesn't have to order it in exactly the same way. [00:13:56] Speaker 00: It could be any one of the NMEA strings that we've talked about. [00:13:59] Speaker 00: It's just that it doesn't reprocess those signals again as the board implies or suggests or expressly states in its order. [00:14:09] Speaker 00: It just doesn't do that. [00:14:11] Speaker 00: And there's really good reasons not to in the record, and that is time. [00:14:16] Speaker 00: time, time, time, we're talking about moving this data as fast as possible to get a triangulated location of the vehicle or the processor itself. [00:14:26] Speaker 00: And so the longer we take by going back and reprocessing a signal, it essentially renders the product inoperable because it's inaccurate. [00:14:36] Speaker 00: Your data is old and stale by the time it reprocesses that. [00:14:40] Speaker 04: So you're really not disputing the claim construction on reorder [00:14:45] Speaker 04: Because, I mean, they adopted yours. [00:14:47] Speaker 04: You're just saying that when they applied that to Encore? [00:14:51] Speaker 00: Well, Your Honor, they did impart with respect to their definition, but they neglected the second component of that, and that is it applies original order before the reordering element, which I think is from the plain language of the word reorder. [00:15:12] Speaker 00: There has to be an order before it's reordered. [00:15:14] Speaker 02: Let's hear from the director and we'll save you rebuttal time. [00:15:31] Speaker 02: Thank you very much. [00:15:34] Speaker 04: Can you start where he left off because it took him a long time to get there, but the reordering part is one of the things that I had some difficulty with here. [00:15:44] Speaker 04: How do you reorder something if there isn't an original order from which to reorder? [00:15:49] Speaker 01: Well, I think, Your Honor, the board, there was a fight below just putting some context to it. [00:15:55] Speaker 01: In the initial petition, George Gordon argued that Encore and Lewis must reorder, must select and reorder, because you do have the two output data streams with two different amounts and orders of location data. [00:16:11] Speaker 01: So you have one with more. [00:16:12] Speaker 01: the GA, and the one with us, the LL. [00:16:14] Speaker 01: And so because it has that output, it must have been doing it. [00:16:18] Speaker 01: They also, by the way, argued that that was within the skill and the art. [00:16:21] Speaker 01: And I'd like to point this for the record to Appendix 217, where the petitioner said in the initial first petition, it is clear that the data selecting and data reordering elements are nothing more than standard formatting capabilities that were well known at the time of the recorded invention. [00:16:42] Speaker 01: I'll let you go to that. [00:16:44] Speaker 01: Now, admittedly, that was not, they spent much more time on it must be reordering, but they did have that in their first petition. [00:16:52] Speaker 01: Let me go to that so that you can... So, did you say J.A. [00:16:57] Speaker 01: 217? [00:16:58] Speaker 03: Yeah, 217. [00:17:00] Speaker 03: Okay. [00:17:00] Speaker 03: Thank you. [00:17:02] Speaker 03: So, it's at the top. [00:17:04] Speaker 04: At the top. [00:17:05] Speaker 04: Okay. [00:17:05] Speaker 04: But this is just a statement in a petition. [00:17:08] Speaker 04: So, how is that? [00:17:10] Speaker 01: And this was more to address that this is part of the argument the whole time was that more than the express teachings of Encore and Lewis were at issue. [00:17:22] Speaker 01: The issue was how to read the fact that these output sentences have these different amounts of data. [00:17:29] Speaker 01: They must be getting them some way. [00:17:33] Speaker 04: But what testimony was there to support this proposition that this would be [00:17:39] Speaker 04: Yeah, you know, something within the ordinary skill in the art for someone to understand that something that's not expressly taught is somehow taught. [00:17:49] Speaker 01: It depends on the book. [00:17:50] Speaker 01: On the second IPR, there was the admission of Lunari's own expert, McAlexander, that said that data reordering and data selection are within the skill in the art. [00:18:00] Speaker 01: There are innumerable ways to do it. [00:18:02] Speaker 01: It's really, you could cut and paste it. [00:18:04] Speaker 01: You could do it from scratch where, as Lunari suggests, that each [00:18:09] Speaker 01: messages independently generated without any initial ordering. [00:18:12] Speaker 01: And I'll point you to, I think the reply in the second IPAIR has the best summary of the evidence and the discussion on this. [00:18:23] Speaker 01: GH argued that, and I don't think it's disputed, that when the location data is calculated by the GPS, it calculates latitude, longitude, et cetera, then it [00:18:36] Speaker 01: outputs it and NMEA messages, the two different NMEA messages. [00:18:40] Speaker 01: It's stored beforehand. [00:18:41] Speaker 01: Now the question is, what kind of order is it stored in? [00:18:46] Speaker 01: Lunari argued that it needs to be stored in a specific order for that to count as ordering. [00:18:51] Speaker 01: And GH argued it's got to be in an order. [00:18:54] Speaker 01: It's stored in an order. [00:18:55] Speaker 01: Everything has an order. [00:18:56] Speaker 01: If it's stored, it's ordered. [00:18:58] Speaker 01: The messy papers on one's desk may not look like they're in an order, but they're in an order. [00:19:04] Speaker 01: I'm not on my desk. [00:19:08] Speaker 01: So that was the dispute on what does that initial ordering have to be. [00:19:16] Speaker 04: So you're saying that the initial ordering could just be something haphazard? [00:19:21] Speaker 01: Well, it's a question. [00:19:24] Speaker 01: I think that it could be. [00:19:25] Speaker 01: I mean, right now, these papers are in an order. [00:19:27] Speaker 01: It's one, two, three, four, five. [00:19:29] Speaker 01: It's in an order. [00:19:30] Speaker 01: It may not be alphabetical or chronological, but there is an order to them. [00:19:35] Speaker 03: Is your point that there's first the argument that this limitation is necessarily met by the prior art and then alternatively it would have been obvious to one of ordinary skill in the art anywhere as well within the one of ordinary skill in the art to change the order from an original order? [00:19:51] Speaker 01: I think you only need to get to the first part because I think the line between what a reference teaches and suggests [00:19:59] Speaker 01: versus obviousness is a fine line. [00:20:02] Speaker 01: So maybe you have to get across that to obviousness, but I think here you don't. [00:20:06] Speaker 01: I think here, like some of the old CCPA cases when they're discussing whether a range is taught where mixing to fibers is disclosed, there's no express disclosure of mixing of what the range needs to be, but there's a disclosure of mixing the fibers. [00:20:25] Speaker 01: That wasn't treated as necessarily you need to get to [00:20:29] Speaker 01: it more than obvious, that it's obvious. [00:20:32] Speaker 01: It's an implicit teaching within the reference. [00:20:35] Speaker 01: I feel like here the table, like in my example, analogy would be if you have a prior reference directed to a pool table, a novel kind of pool table, and they say that the legs are fixed to the pool table, but they don't say exactly how. [00:20:49] Speaker 02: So is the board's concern that on the broadest reasonable construction, [00:20:56] Speaker 02: as opposed to, let's say, the correct construction, as was presented in the district court. [00:21:02] Speaker 02: In that space, that was the space that justifies the board's decision? [00:21:08] Speaker 01: Well, Your Honor, the petitioner below, and the board could have gone this far too, argued that even under the district court's decision, the reference would have both been a reference. [00:21:19] Speaker 02: How does the board treat the district court's decision when it's a prior decision on the record? [00:21:25] Speaker 02: that then is presented as background. [00:21:29] Speaker 02: Apparently, it's ignored completely. [00:21:31] Speaker 02: Is that correct? [00:21:32] Speaker 01: No, Your Honor. [00:21:33] Speaker 01: They did address it. [00:21:34] Speaker 01: They discussed the decision. [00:21:37] Speaker 01: And in the final decision, it's not an institution decision. [00:21:41] Speaker 01: There was a bit more briefing on it. [00:21:43] Speaker 01: But in the briefing for the final decision, it was just not much at all by Lunari. [00:21:47] Speaker 01: So given that it was not much by Lunari, the board addressed the argument. [00:21:52] Speaker 01: And this was a decision, Your Honor, on indefiniteness, which addressed, you know, did not have the same arguments, the same briefing before it. [00:22:02] Speaker 02: And the... Do I hear you saying that the board completely ignores what's happened in the courts if they think that some other conclusion suits them better? [00:22:14] Speaker 01: I don't think that's what happened here, Your Honor. [00:22:16] Speaker 02: Well, they came out differently. [00:22:18] Speaker 01: They did come out differently, but they... So they had to have... [00:22:21] Speaker 02: Ignored it. [00:22:22] Speaker 02: It's there. [00:22:23] Speaker 02: It's supported. [00:22:23] Speaker 02: It hasn't been reversed. [00:22:25] Speaker 01: They addressed it and found that it was not applicable and found that there is other portions of the specification and the claims that were relevant that the district court did not address because it was addressing a different question. [00:22:40] Speaker 01: It was indefiniteness. [00:22:42] Speaker 01: And even if it weren't addressing the same question, we're not in that space right now. [00:22:48] Speaker 01: But if they were addressing the same question, [00:22:51] Speaker 01: There are different arguments in different parties here. [00:22:53] Speaker 01: That district court case wasn't even the same petitioner. [00:22:56] Speaker 01: It was a different petitioner. [00:22:56] Speaker 02: It's the same patent? [00:22:58] Speaker 02: The same prior art? [00:23:00] Speaker 01: It was, no, no, because it was indefiniteness, so they didn't reach the prior art, Your Honor. [00:23:04] Speaker 02: Well, it was the prior art that was chosen by the court, was fully litigated, whether it was identical or not, or you're saying that unless or if [00:23:17] Speaker 02: the prior art is identical in the court and in the board, then the board would be bound by what the court has decided. [00:23:24] Speaker 01: I'm not going that far, Your Honor, but that wasn't the case here because it wasn't in depth. [00:23:28] Speaker 01: They weren't considering the prior art at all at that point. [00:23:32] Speaker 02: So you're saying that the board's position, as well as I can tell, and it's pretty clearly stated in your brief, is that never mind, we ignore it. [00:23:42] Speaker 02: And I just want to be sure that that's [00:23:44] Speaker 02: The board's position, you're here representing the director and the board. [00:23:48] Speaker 02: Are you not? [00:23:49] Speaker 01: Yes, Your Honor. [00:23:51] Speaker 02: So this is a significant aspect of the statute and of policy. [00:23:55] Speaker 02: I want to be sure I understand the office's policy when there is a prior judicial decision. [00:24:03] Speaker 01: The board's policy would be to look at the case presented and look at the arguments presented. [00:24:09] Speaker 01: If there is a district court decision that is brought to its attention, [00:24:13] Speaker 01: it should consider it, including all the evidence that's brought before it, and should give it the weight, the persuasive weight, because it's not binding on the board. [00:24:25] Speaker 01: Give it the persuasive weight that it's due, like a sister court would give another sister court. [00:24:32] Speaker 04: Your answers here are far more reasonable than your statements in the brief. [00:24:36] Speaker 04: And that's one of the things that's concerning, I think. [00:24:38] Speaker 04: You actually say in the brief, [00:24:41] Speaker 04: that IPRs are not even adversary proceedings and that in IPRs, it's a public interest proceeding in which your obligation is to get rid of bad patents. [00:24:52] Speaker 04: And now you cite Quozo for that, which does not say that, but I mean, that is, it's one thing to say we have different standards, different burdens, but quite another to say that an IPR is not an adversary proceeding. [00:25:06] Speaker 04: I mean, that's exactly what Congress created. [00:25:08] Speaker 01: If I said that, Your Honor, I think that must have flown by inappropriately. [00:25:12] Speaker 01: I mean, certainly there are adversary proceedings. [00:25:14] Speaker 01: So if that is, I'll go back and look, but that is something that was not intended. [00:25:19] Speaker 01: They certainly are adversary proceedings. [00:25:22] Speaker 01: But the language, they're not intended to get rid of bad patents. [00:25:28] Speaker 01: COSA doesn't say that. [00:25:29] Speaker 01: But COSA does say that they do have that as a salutatory effect of those proceedings. [00:25:33] Speaker 04: And also to strengthen good patents. [00:25:35] Speaker 01: And to strengthen good patents. [00:25:38] Speaker 04: It's not a public interest in getting rid of patents. [00:25:44] Speaker 01: Over time, the Supreme Court has had cases where they have said that. [00:25:48] Speaker 01: And the Supreme Court jurisprudence has shifted, right? [00:25:50] Speaker 01: So you have the 40s. [00:25:52] Speaker 01: I think there were some cases in the 40s that were pretty strong with some language on that. [00:25:57] Speaker 04: But the AIA didn't exist in the 40s. [00:26:00] Speaker 04: This is an adversary proceeding that was specifically drafted by Congress to actually [00:26:08] Speaker 04: perform the function in certain narrow areas of an alternative adversary proceeding where the board is not an advocate. [00:26:15] Speaker 04: The board is acting like, as you say, a sister court. [00:26:20] Speaker 04: Right? [00:26:20] Speaker 01: Right. [00:26:21] Speaker 01: And again, if part of the statements of the brief went beyond, if the language of that paragraph sounds like it went beyond that, I think that we [00:26:34] Speaker 01: What I'm saying today is what we're trying to say, which is you don't ignore it. [00:26:38] Speaker 01: I mean, the district court that looked at evidence is important. [00:26:41] Speaker 01: And in every case that I've seen in my limited universe, where the district court opinion has been brought to the attention of the board, they have at least considered it. [00:26:53] Speaker 01: And they may not have reached the same ultimate result, but they did not ignore it. [00:26:59] Speaker 01: They did not view it as something that was something they didn't even look at. [00:27:03] Speaker 02: Do you foresee any obligation on the office when they decide that they're going to reach a conclusion contrary to what's been reached in the court to explain why? [00:27:16] Speaker 01: I think that they should, and I think that if it is briefed, I think that if the issue... As what, as an appellate tribunal from the district court? [00:27:27] Speaker 02: Is that the role that you see for the PTAP? [00:27:30] Speaker 01: Not as a public tribunal, but as a sister court that would find a different claim construction or a different conclusion on a different set of facts from another court. [00:27:42] Speaker 01: I think that that is entitled District Court Judges Analysis is entitled to respect. [00:27:47] Speaker 01: It might be a different issue. [00:27:50] Speaker 01: And in that case, the analysis may be less applicable. [00:27:54] Speaker 02: Well, let's just say it's the same issue. [00:27:56] Speaker 02: It's certainly the ultimate question is the same, of liberty or not, claim construction. [00:28:04] Speaker 02: One is slightly broader than the other. [00:28:06] Speaker 02: And I didn't want to pin you down on this point, but I think I heard you say that the difference turned on the different standards. [00:28:15] Speaker 02: Is that a fair statement? [00:28:17] Speaker 01: I don't think it does. [00:28:19] Speaker 01: This was something that I think maybe one of the previous, that Mellie was addressing, I found here. [00:28:25] Speaker 01: I think that under... I mean, it is a different standard. [00:28:29] Speaker 01: I think that that is one... It isn't very different. [00:28:32] Speaker 02: They're both supposed to reach the correct result on a matter of law. [00:28:36] Speaker 02: Claim construction is a matter of law. [00:28:38] Speaker 02: So it's only how the underlying facts, if it turns on the underlying facts, are viewed. [00:28:46] Speaker 02: Isn't that right? [00:28:47] Speaker 01: Well, Your Honor, isn't it for indefiniteness, and correct me if I'm wrong, isn't that still considered beyond [00:28:54] Speaker 01: that it's the clear and convincing standard of proof and that the claims were intended to preserve validity. [00:29:00] Speaker 01: I know that the district court said that in its opinion and those are two differences with the proceeding here because we do not, there is not a clear and convincing standard of proof for an IPR and given it's the agency re-examining its own patent [00:29:19] Speaker 01: It's a question. [00:29:20] Speaker 01: It's an open question, I think, at least, whether the presumption of validity should apply. [00:29:27] Speaker 01: And there's legislation pending that would address those questions. [00:29:31] Speaker 01: I don't think it turns here on that. [00:29:32] Speaker 01: There is a difference. [00:29:33] Speaker 01: And that is one reason to consider the district court's opinion to be not binding on the board. [00:29:46] Speaker 01: But I don't think that it turns on the difference here. [00:29:48] Speaker 01: Also, just to make the point on these facts, even if you were to adopt the claim construction and the board didn't say this, but GH said this below, you still win. [00:29:57] Speaker 01: Because even if a location signal is output by the GPS device and then a second signal is output, the data is still getting cut down. [00:30:08] Speaker 01: And that is at [00:30:11] Speaker 04: And when you say cut down, so you think that just cutting, limiting the data is the same as reordering it? [00:30:17] Speaker 01: And reordered. [00:30:18] Speaker 04: And reordered. [00:30:19] Speaker 04: Both. [00:30:19] Speaker 01: I don't think so. [00:30:20] Speaker 01: But I think reordering is the limitation that seems to be the one that maybe there could be some dispute about. [00:30:30] Speaker 01: Because selecting clearly must happen. [00:30:32] Speaker 01: And to go back to my table example, if the reference says that the legs are attached to the new pool table with all these new features, [00:30:40] Speaker 01: It doesn't explicitly say if you use nails or screws. [00:30:44] Speaker 01: If somebody comes along and says, no, no, you need to use the screws, the first reference, because it's within the ordinary skill in the art to use the nails or screws, I mean, it teaches it, teaches or suggests. [00:30:55] Speaker 01: It may not be explicit, but there's a long line of cases saying that it goes beyond, that teaching or suggestion goes beyond the explicit teachings and references. [00:31:04] Speaker 01: This is like a design choice within the range of KSR. [00:31:08] Speaker 01: But even if it's not, even if it's not, there is the evidence that was presented, especially from Mr. McAlexander, the Lunari's own expert, so there's no due process on it. [00:31:20] Speaker 04: Now, if that's only in the second IPR and you don't have that in the first IPR, how do we go outside the record of an individual IPR for purposes of saying that there's substantial evidence in the record of that IPR? [00:31:35] Speaker 01: Then we would be only relying on the references [00:31:38] Speaker 01: and the testimony on the level of skill in the art, that there's a high level of skill in the art. [00:31:43] Speaker 01: Both the experts agreed. [00:31:44] Speaker 01: So for the first IPR, it would be the teaching of the reference itself. [00:31:50] Speaker 01: And I think this is not a complicated question. [00:31:54] Speaker 01: It's cutting and pasting data. [00:31:56] Speaker 01: It's already done all the complicated things. [00:31:58] Speaker 03: Now, isn't it right, though, that the board, you're talking about your inherency, maybe, or that it necessarily is taught by the reference [00:32:06] Speaker 03: But the board, in its opinion, I'm looking at JA 14, which I think is the right site, says, furthermore, we conclude that the record as a whole indicates that one of the board members would have found it obvious and might have on-court changed the order of the data field and goes on and explains, for example, changing the order of time and latitude and so on. [00:32:26] Speaker 03: I mean, so it seems to me as if at least there you've got the board relying on obviousness [00:32:34] Speaker 01: uh... maybe as an alternative for additional ground [00:32:45] Speaker 01: the cusp between teaching and obviousness. [00:32:49] Speaker 01: But I think it still falls on the teaching, because 814, it says sufficiently that we conclude sufficiently that... I see what you're saying. [00:32:57] Speaker 03: I think your better answer on this, though, is at first they said it was necessarily taught, and then they said furthermore, because that's exactly what's said. [00:33:05] Speaker 01: That might be a better way of reading. [00:33:06] Speaker 03: We conclude that the record as a whole indicates that it would have been obvious. [00:33:09] Speaker 03: That might be a better way. [00:33:10] Speaker 03: you know, belt and suspenders approach, perhaps. [00:33:12] Speaker 01: I think that's probably a better way of reading it. [00:33:14] Speaker 01: And then the conclusion on A-16 still says, considering the ordinary scale and evidence of record, we find that Ankur would have taught or suggested to an ordinary artisan changing it. [00:33:25] Speaker 04: Yeah, and I guess that's what I'm, there is that, the question is which [00:33:30] Speaker 04: What are they saying? [00:33:31] Speaker 04: Are they saying that it really does teach? [00:33:33] Speaker 04: I mean, they actually don't say it expressly teaches it, because it's hard to find it expressly teaching it. [00:33:38] Speaker 01: I don't think they said it expressly teaches it, because I can't find where that is. [00:33:43] Speaker 01: On the order of such a small, non-expressed teaching, sometimes the most obvious things are the hardest to point to within a reference, because why would you say in a one of skill and the art, something that's so basic, you wouldn't say to put the nail or the screw, because you would just say a fix. [00:33:58] Speaker 01: So it's within the teachings of, these references are written for people of skill and the art, rather than putting every sub-detail of what someone might know, rather than having the recipe saying, okay, find a spoon, the spoon should be, [00:34:11] Speaker 01: of this size and it must be mixed, can be mixed forward or backward, when you start getting to that level of detail in a claim that's allegedly novel, it becomes hard to find art that says that amount of detail. [00:34:26] Speaker 01: And here, if there must be one NMEA output message and another NMEA output message with different orders. [00:34:36] Speaker 04: Usually, when you have a gap, [00:34:40] Speaker 04: You know, you say it's hard to find a reference, but it wouldn't be so hard necessarily to find someone of skill in the art to testify that in fact, from that reference, that logical conclusion would follow. [00:34:53] Speaker 04: And in this particular instance, Gordon Howard never offered that testimony. [00:34:58] Speaker 04: I don't know why, if it's so obvious or so easy to do, but they didn't. [00:35:03] Speaker 01: Well, initially in their petition, I think it would have been a better thing. [00:35:08] Speaker 01: It would have been a better thing if they initially, in their petition, instead of having their experts say, look, it must be doing it, if they had their experts say, it's within the ordinary scale of the art. [00:35:20] Speaker 01: They did say that. [00:35:21] Speaker 01: The attorney argument in the petition did say that. [00:35:24] Speaker 01: The attorney argument. [00:35:25] Speaker 01: The attorney argument. [00:35:25] Speaker 01: But they did say it. [00:35:27] Speaker 01: It's the attorney argument, but they said it. [00:35:28] Speaker 01: It would have been nicer in their initial petition if they said that. [00:35:31] Speaker 01: By the time of the depositions and the replies, they did end up with Dr. Jenke saying that it's, let's see, where is that? [00:35:46] Speaker 01: The replies, well actually they still were relying primarily on the, well it must be doing it and look at that it's saving, that there must be an initial order and then they're saving. [00:35:58] Speaker 01: They pointed in their reply, [00:36:00] Speaker 01: I don't think they needed to point in the reply, because by the reply in the second IPR, they had Dr. Alexander, which is even better when your opponent is admitting it. [00:36:08] Speaker 01: But that's in the second IPR. [00:36:09] Speaker 01: That's in the second IPR. [00:36:10] Speaker 01: In the first IPR, we have the reference, and we have the level of skill in the art. [00:36:18] Speaker 02: OK. [00:36:19] Speaker 02: OK. [00:36:19] Speaker 02: Any more questions? [00:36:20] Speaker 02: OK. [00:36:23] Speaker 02: Thank you, Ms. [00:36:24] Speaker 02: Un. [00:36:24] Speaker 02: Mr. Abbott, let's see. [00:36:26] Speaker 02: We've run over. [00:36:26] Speaker 02: Let's make it eight minutes. [00:36:30] Speaker 02: If it pleases the court. [00:36:50] Speaker 00: I would like to address three main points that Ms. [00:36:53] Speaker 00: Unk raised with you. [00:36:54] Speaker 00: And the first is, and I'm going to go out on a limb here. [00:36:58] Speaker 00: I would ask that you or your clerks run a search on suggest in the record, in particular Gordon Howard's petitioners' pleadings at the PTAT. [00:37:10] Speaker 00: And I don't believe you'll find it. [00:37:13] Speaker 00: And the reason's clear, because they said that Encore and Lewis explicitly recite or disclose the data selecting and data reordering element. [00:37:26] Speaker 00: They may have said that it would be within the skill. [00:37:29] Speaker 00: They don't say modification would be within the skill. [00:37:34] Speaker 00: And so my client is behind the eight ball here. [00:37:37] Speaker 04: Well, they're not saying, I mean, the board's not arguing. [00:37:41] Speaker 04: I didn't understand your friend on the other side to say that those references had to be modified. [00:37:48] Speaker 04: I thought her point was that you can logically conclude that it is teaching it. [00:37:55] Speaker 04: even if it doesn't say so in so many words. [00:37:58] Speaker 00: Well, with respect to the point that you raised in your questions, there's good reason why Gordon Howard didn't raise that, because that would render the Encore device inoperable. [00:38:07] Speaker 00: We're talking about what's going on in 1998, selective availability, GPS turned off and on for military concerns. [00:38:17] Speaker 00: We're talking about the advent of commercial marketing of GPS products, and we're talking about interoperability. [00:38:25] Speaker 00: We're talking about being able to communicate with other devices directly off the shelf. [00:38:29] Speaker 00: That's what the NMEA standards are directed to. [00:38:32] Speaker 00: And that's why the experts, uniformly, both Gordon Howard's expert, our expert, as we understood it, the petitioner, as well as arguments that we made, is that the NMEA is not subsequently reordered. [00:38:48] Speaker 04: What about your expert's admission in the second? [00:38:53] Speaker 00: Newvasive just came out, and it reached my hot hands just this morning, and I just stumbled on it. [00:38:58] Speaker 00: Newvasive, as I read it, was essentially that you can't take an expert's, the board can't take an expert's testimony or declaration out of context for purposes of claim construction, which it didn't go as far to say, which ultimately rendered it obvious. [00:39:16] Speaker 00: I think that was an issue that the court didn't decide in that opinion, but it remanded back [00:39:22] Speaker 00: in consideration of that. [00:39:23] Speaker 00: But the point being is that Mr. McAlexander's testimony, I think, was taken out of context. [00:39:29] Speaker 00: And that is, yes, and we don't quibble or dispute that in the world of software development and software computer science, that one of skill and art couldn't select less than all reward. [00:39:43] Speaker 00: There's a number of ways to do that. [00:39:45] Speaker 00: But not in the context of GPS receiver technology. [00:39:50] Speaker 00: And that is what we're talking about. [00:39:52] Speaker 00: Not just some one-off, we're going to program some other consumer electronics device. [00:39:58] Speaker 00: We're talking about a GPS receiver that practices a standard for interoperability purposes. [00:40:06] Speaker 00: Not to mention, as I discussed earlier, the timing considerations. [00:40:10] Speaker 00: And Mr. McAlexander talked about the timing considerations at great length, and I believe his deposition and maybe his declaration as well. [00:40:19] Speaker 00: The data that's received, and we all have GPS. [00:40:22] Speaker 00: We know how fast that is. [00:40:24] Speaker 00: And delay on it creates additional propagation, delays that have to have additional calculations and slows things down and would essentially render it inoperable, which I think, it's either Black and Decker or Cutsworth talks about that. [00:40:39] Speaker 00: You don't want to modify something that renders it. [00:40:43] Speaker 00: I mean, you can't have a modification of the art to read on the claims if it renders it inoperable. [00:40:50] Speaker 04: I still don't think you've addressed the issue of the admission, because I hear what you're saying. [00:40:59] Speaker 04: You can't take it out of context. [00:41:01] Speaker 04: And so I get that. [00:41:03] Speaker 04: But your expert was saying, we don't need to say certain things in the patent in order to render it [00:41:12] Speaker 04: enabled or not indefinite because everybody would know how to do it or a person of skill in the art would know how to do it. [00:41:18] Speaker 04: How is that not a mission that couldn't be translated to what someone would have read in the prior art? [00:41:26] Speaker 00: In fairness, I can see how it could be read that way, but I truly believe that the way Mr. McAleazander was addressing this was in the context of computer science generally. [00:41:38] Speaker 00: And what we've seen, and again, [00:41:41] Speaker 00: When we look at the big picture of this thing, the big picture of the art, it's not something you want to do. [00:41:48] Speaker 00: It's not something that would be done. [00:41:50] Speaker 00: It's something that would have rendered the devices either inoperable or ineffective for their intended purposes. [00:41:57] Speaker 00: And so have I answered your question, Your Honor? [00:42:00] Speaker 04: Now, why would it render it inoperable? [00:42:03] Speaker 00: Well, because one, if the GPS receiver itself started modifying [00:42:10] Speaker 00: NMEAs, it's to be compliant with a standard. [00:42:16] Speaker 00: And so you have to have a recipient on the other end of the GPS receiver that receives that process signal that can pick it up. [00:42:25] Speaker 00: And so you could go mix and match your various devices that operate on a NMEA standard that they can communicate with one another. [00:42:32] Speaker 00: So that's one aspect. [00:42:34] Speaker 00: And then the timing aspect is another. [00:42:36] Speaker 00: that the delays would render the GPS device effectively useless. [00:42:45] Speaker 03: Wasn't the board relying on the fact that Namia has different protocols, so that's still compliant? [00:42:50] Speaker 03: Even if there's two different protocols, they still would be compliant, right? [00:42:54] Speaker 03: That there's different message options that contain different data that is in a different order. [00:43:03] Speaker 00: Correct. [00:43:03] Speaker 00: Namia has approximately seven different messages. [00:43:06] Speaker 00: that have varying amounts of data that can be constructed. [00:43:10] Speaker 00: And so for whatever your intended purpose, you may select one over the other. [00:43:15] Speaker 00: And so your devices are going to be compliant maybe with GGA, GLL, I think RNC is another one. [00:43:23] Speaker 00: There's, I think, approximately seven of them. [00:43:26] Speaker 00: But that's constructed in the Encore MPU, which you'll find in Appendix 895, the block diagram. [00:43:33] Speaker 00: That's constructed in the MPU. [00:43:35] Speaker 00: And this brings me to the second issue that I'd like to address in rebuttal. [00:43:39] Speaker 00: And that is there is no order of the location data in the first instance until it's placed on a signal. [00:43:46] Speaker 00: The signals coming down from the satellites are simply pseudo-random signals, ones and zeros that are picked up by the antenna, the GPS receiver, go through some filtering process where you get to the digital signal processor, which is described in encore. [00:44:05] Speaker 00: And in the DSP is where it goes through a correlation process. [00:44:09] Speaker 00: And it takes these ones and zeros and puts slivers of information on different channels. [00:44:14] Speaker 00: OK? [00:44:15] Speaker 00: Individually, that means nothing to determine your current position or a triangulated position of where you are. [00:44:23] Speaker 00: It's nothing. [00:44:24] Speaker 00: It's really just a bit of information that has to be transmitted with all of the other information to the MPU after it's been converted to a digital signal. [00:44:35] Speaker 00: And then mathematical equations are run on it. [00:44:38] Speaker 00: A lot of math are run on it in a very quick amount of time to come up with your location. [00:44:43] Speaker 00: And then that location is spelled out in an amina in the MPU. [00:44:47] Speaker 00: And it's transmitted across the RS-232 to a separate controller, which I think, as I mentioned earlier, assists with our disclaimer argument. [00:44:58] Speaker 02: OK. [00:44:59] Speaker 02: How about wrapping it up in a few sentences? [00:45:01] Speaker 00: Yes, Your Honor. [00:45:02] Speaker 00: And the last point I'd like to make, I'm very aware of this loggerheads between the judicial and executive branch with respect. [00:45:09] Speaker 02: We will have to figure that out. [00:45:11] Speaker 00: Right, right. [00:45:12] Speaker 00: But the point being is that there is nothing in the specification, there's no record evidence that would allow the board to deviate from Judge Clark's reasoned opinion with respect to location signal. [00:45:24] Speaker 00: So there's nothing in there that would [00:45:27] Speaker 00: that would allow them to do what they did, one, and there's nothing in there to suggest that what he found, even though we're talking pre-nodalists, was not compliant with the BRI. [00:45:39] Speaker 00: And we believe that if you adopt Judge Clark's rationale and reasoning with respect to two location signals, that this court should reverse and render. [00:45:48] Speaker 02: I thank you for your time. [00:45:51] Speaker 02: Thank you. [00:45:51] Speaker 02: Thank you both. [00:45:53] Speaker 02: Well presented. [00:45:54] Speaker 02: Interesting case.