[00:00:09] Speaker ?:
Thank you.

[00:01:02] Speaker 03:
Okay.

[00:01:03] Speaker 03:
The next argued case is number 16, 18, 18.

[00:01:07] Speaker 03:
Think Computer Corporation against Square, Incorporated.

[00:01:11] Speaker 03:
Mr. Rabikoff.

[00:01:22] Speaker 05:
Morning, Your Honors.

[00:01:28] Speaker 05:
May I please support?

[00:01:30] Speaker 05:
I have four points.

[00:01:31] Speaker 05:
My first point is that the board misconstrued the plain meaning of the claims to include user selection.

[00:01:38] Speaker 05:
In its final written decision, it understood this claim language as follows.

[00:01:43] Speaker 05:
Quote, a user is permitted expressly to select which account mode is desired at the appropriate point in time.

[00:01:50] Speaker 05:
But a human user cannot be the subject that carries out these elements of the claims.

[00:01:56] Speaker 05:
It's physically impossible for a human user to, quote, obtain a user ID token

[00:02:01] Speaker 05:
from the merchant terminal, or quote, communicate identity confirmation information associated with the user ID token to the merchant terminal.

[00:02:10] Speaker 05:
Most importantly, a user cannot flexibly assign account roles within a payment system that are adapted to selectively function as either a merchant or purchaser account during any particular transaction.

[00:02:23] Speaker 05:
A human user cannot physically or computationally execute these tasks.

[00:02:28] Speaker 05:
Instead, the only input

[00:02:31] Speaker 05:
provided by the human user is whether to buy or sell an item.

[00:02:35] Speaker 05:
And it's the claim system that carries out these claim elements in order to effectuate that user's input.

[00:02:42] Speaker 01:
You rely a lot on this disclaimer argument as it relates to user selection.

[00:02:50] Speaker 01:
But yet, I don't see anywhere that the examiner referred to any such disclaimer

[00:02:59] Speaker 01:
in connection with the allowance?

[00:03:06] Speaker 05:
Yes, Your Honor.

[00:03:06] Speaker 05:
So it is Square's position that we raise this disclaimer in the principal response brief.

[00:03:14] Speaker 05:
And let me see.

[00:03:16] Speaker 01:
I mean, putting aside the waiver as it relates to this proceeding, even if we're looking at the merits, I don't see that the examiner actually relied on it for purposes of the allowance or disallowance.

[00:03:30] Speaker 05:
Oh, with respect to Examiner.

[00:03:32] Speaker 05:
Yes, so the Examiner did rely on it because if you look at the notice of allowance, and it points to two elements.

[00:03:42] Speaker 00:
What page in the record are you relying on?

[00:03:43] Speaker 05:
Yeah, let me look at that.

[00:03:44] Speaker 05:
That is 1597, 1598.

[00:03:48] Speaker 05:
And let me cite the applicant's argument.

[00:03:57] Speaker 05:
The applicant specifically stated that the prior only showed that, quote, a person can assume these different rules, but this does not teach that an account within a payment system can selectively take on these rules.

[00:04:09] Speaker 05:
Now, so when the examiner responded with an allowance, there were two out.

[00:04:14] Speaker 05:
There was Wong et al.

[00:04:17] Speaker 05:
that allegedly the examiner had found disclosed the bidirectional account element.

[00:04:23] Speaker 05:
So that was precisely a bidirectional account element and another element that ultimately the examiner decided, no, as it turns out, this prior art does not disclose the bidirectional account element.

[00:04:39] Speaker 05:
But I think another important point is that even if this court does not accept this as a clear and unmistakable disclaimer, the prosecution history still

[00:04:51] Speaker 05:
positively confirms the plain meaning of the claims, which clearly excludes user selection of account roles.

[00:04:59] Speaker 05:
And so straight path and its progeny would require this plain meaning of the claims.

[00:05:05] Speaker 05:
So again, it is the applicant specifically referred to the fact that the prior art only describes a person that can assume account roles of buying and selling in an online marketplace.

[00:05:18] Speaker 05:
And that's fundamentally different.

[00:05:20] Speaker 05:
different than the specific infrastructure and the inventive concept disclosed in the bi-directional account element.

[00:05:29] Speaker 05:
So turning back to my point with respect to plain meaning, the specification further reinforces the claims plain meaning.

[00:05:38] Speaker 05:
It states that, quote, the accounts of the payment system are preferably designed so that an account may selectively function as either a merchant or purchaser during any particular transaction.

[00:05:50] Speaker 05:
Designed in this context must mean that the payment system is programmed to select the appropriate account mode for each transaction.

[00:05:58] Speaker 05:
This is because it is impossible to design the future actions of a human user.

[00:06:03] Speaker 05:
And this is precisely the section of the specification cited by the board to support its construction that a user may, quote, expressly select which account mode is desired.

[00:06:14] Speaker 05:
And that's at appendix page 14.

[00:06:16] Speaker 05:
That's the only citation to specification found

[00:06:19] Speaker 05:
when discussing reading on the bidirectional account element in its final written decision.

[00:06:26] Speaker 05:
Turning to my second point, Think timely raised its argument against the board's improper claim construction.

[00:06:33] Speaker 05:
Think never challenged and expressly agreed with Square's original construction that excluded user selection of account rules.

[00:06:42] Speaker 05:
In the claim construction section of its own petition, Square stated, quote, the claims say

[00:06:49] Speaker 05:
that these roles are assigned by the claimed system, end quote.

[00:06:53] Speaker 05:
That's in appendix 97.

[00:06:55] Speaker 05:
Both parties cited that same prosecution history passage that reveals a clear disclaimer of user selection and Square used that same prosecution history passage to support its point about what the claims say.

[00:07:07] Speaker 05:
Think also timely raised its construction of user selection in its principal response brief before the board.

[00:07:14] Speaker 05:
Specifically, Think stated that the prior art only teaches a user

[00:07:18] Speaker 05:
assuming the role of a seller or buyer in an online marketplace and fails to disclose, quote, selective functionality.

[00:07:26] Speaker 05:
That's appendix 1808, 1809.

[00:07:29] Speaker 05:
In that same passage, Think uses the term selective functionality limitation in showing that this limitation is not met when you have user selection.

[00:07:38] Speaker 01:
To be clear... I still don't understand.

[00:07:41] Speaker 01:
Your argument is, I'm assuming it's not waived, and there's a strong waiver argument I

[00:07:47] Speaker 01:
that the other side, I'm sure, is going to make.

[00:07:49] Speaker 01:
But assuming it's not waived, you say that that specification language that you cite to shows that you're talking about the functionality of the system so that it can either function as a merchant or a purchaser selectively, but it doesn't say that the system controls the selection.

[00:08:11] Speaker 05:
Your Honor, I actually, it does, that has, basically, linguistically speaking, who is, what is the subject carrying out these claim elements?

[00:08:22] Speaker 05:
And so, well, to the point of waiver, that Square did say it's a claim system that selects the account rules.

[00:08:31] Speaker 05:
But just linguistically speaking, if you're talking about a system that obtaining a user ID token,

[00:08:40] Speaker 05:
or communicating identity confirmation information.

[00:08:44] Speaker 05:
And being adapted, who's adapting what?

[00:08:47] Speaker 05:
Adapted to selectively function.

[00:08:49] Speaker 01:
Well, I mean, you can have a system where it can work as either the purchaser or the merchant, but still have the one who's doing it do the selection.

[00:09:04] Speaker 01:
I mean, I'm having a hard time understanding how that specification language

[00:09:09] Speaker 01:
actually says, we're not going to have a system in which the user can decide whether they're going to be the merchant or not.

[00:09:17] Speaker 05:
So the important area to distinguish is the user's activity and input versus how the system responds to that, and whether the user has to turn some type of switch and go to a purchasing page, turn another switch, and go to a selling page.

[00:09:34] Speaker 05:
And that was the state of the art.

[00:09:36] Speaker 05:
That's what the examiner found.

[00:09:38] Speaker 05:
That was the state of the art.

[00:09:39] Speaker 05:
before the appellant's invention, before the appellant's patent.

[00:09:47] Speaker 05:
So again, this idea of selectively adapting account roles that's sitting within the payment system.

[00:09:55] Speaker 05:
And that's really important to see that it's happening within the payment system.

[00:09:59] Speaker 05:
That's sort of flexible.

[00:10:00] Speaker 05:
And the other important point is the idea of flexible account roles as opposed to fixed account roles.

[00:10:06] Speaker 05:
This sort of flexibility, this design can only be done

[00:10:09] Speaker 05:
by a programmer.

[00:10:12] Speaker 05:
And I want to pivot to how this plays out in looking at Dalzell, which is the only prior art that the board looked at and that Square cited to support that there was a teaching of the bidirectional account element in the prior art.

[00:10:26] Speaker 05:
So the board never found that Dalzell disclosed the bidirectional account limitation properly construed.

[00:10:33] Speaker 05:
The board never found that Dalzell disclosed a payment system that selected account roles.

[00:10:38] Speaker 05:
Instead, the board only found that, quote, a buyer from a particular account can add a seller feature to that particular account without the need of creating a whole new account.

[00:10:50] Speaker 05:
But the board at best found that Dalzell disclosed user creation of fixed account roles, followed by user selection of those account roles for buying and selling.

[00:11:00] Speaker 05:
The bi-directional account element requires flexible account roles selected by the payment system.

[00:11:07] Speaker 05:
So the board's misconstruction that the claims allow user selection of fixed account roles led it to make insufficient factual findings to support its obviousness ruling.

[00:11:18] Speaker 05:
So again, there's a difference between fixed roles and flexible roles.

[00:11:23] Speaker 05:
And one aspect, one important feature that's found only in the avalanche

[00:11:31] Speaker 05:
invention is the idea of having a unified payment system, a unified database, everything being within the same package, infrastructurally.

[00:11:41] Speaker 05:
And that cannot be done if you're having a user separately creating accounts, a user separately selecting which account am I going to be logging into, which am I going to be selecting.

[00:11:50] Speaker 05:
It's fundamentally different.

[00:11:51] Speaker 05:
It's a path-dependent difference.

[00:11:53] Speaker 05:
It's a coding difference.

[00:11:55] Speaker 05:
It's in the design, words like design, words like

[00:12:02] Speaker 05:
where the subject really can only be the payment system.

[00:12:06] Speaker 05:
Linguistically speaking, why would you have a list of actions?

[00:12:13] Speaker 05:
And some of those actions were saying the payment system carries out.

[00:12:17] Speaker 05:
Some of the actions were saying the user pays out.

[00:12:19] Speaker 05:
Linguistically, I mean, true.

[00:12:21] Speaker 05:
In patent claims, you have passive voice.

[00:12:24] Speaker 05:
But is it linguistically possible?

[00:12:26] Speaker 01:
I'm sorry.

[00:12:29] Speaker 01:
I'm having such a hard time.

[00:12:31] Speaker 01:
So the system is going to randomly just assign someone to be the purchaser or the seller?

[00:12:36] Speaker 01:
Not at all.

[00:12:36] Speaker 01:
What if you don't want to be the purchaser or the seller in a given circumstance?

[00:12:41] Speaker 01:
Right.

[00:12:41] Speaker 01:
So the system's just going to make you with that?

[00:12:44] Speaker 05:
Absolutely not, Your Honor.

[00:12:45] Speaker 05:
The system is going to effectuate the user's input.

[00:12:49] Speaker 05:
And so the user's input would be making selections about what to do, about what to buy or sell in an online marketplace.

[00:12:57] Speaker 05:
But that's different than selecting the account rules

[00:13:00] Speaker 05:
and everything that goes along with it because there's a lot of other infrastructure that's carried through all of that.

[00:13:06] Speaker 05:
It's different for a user to select an account role compared to making a decision whether to buy or sell an item.

[00:13:15] Speaker 05:
It's fundamentally different and it's literally the reason what the issue that the argument that the applicant raised and the examiner

[00:13:25] Speaker 05:
accepted, you know, allowed the claims after that point, and specifically removed the prior art which the examiner did find disclosed a bidirectional account element.

[00:13:39] Speaker 03:
Okay, let's hear from the director, and we'll save you rebuttal time, Mr. Rubikoff.

[00:13:53] Speaker 03:
Okay, Ms.

[00:13:54] Speaker 03:
Schenberg.

[00:13:55] Speaker 02:
Good morning.

[00:13:56] Speaker 02:
I'm actually counsel for Square, the petitioner in the matter.

[00:14:01] Speaker 02:
May it please the court?

[00:14:03] Speaker 02:
The board's decision should be affirmed for three separate reasons, all of which were alluded to in counsel for the computer's opening remarks.

[00:14:12] Speaker 02:
First, the only claim construction dispute that's raised in the appeal

[00:14:17] Speaker 02:
was waived.

[00:14:18] Speaker 02:
It wasn't raised below.

[00:14:19] Speaker 02:
This can be seen, and I can walk through the references to the record below that were mentioned just now, but this can be seen on page 19 of Think Computer's brief, where it puts forth a construction with no citation to the underlying record.

[00:14:33] Speaker 02:
And the reason that there's no citation is because this construction, for which Think Computer is now advocating, was not raised in the underlying proceedings.

[00:14:43] Speaker 02:
I think Computer's counsel pointed to two different places in the underlying record where it claims to have argued this construction, neither of which make any sense.

[00:14:56] Speaker 02:
And I'll walk through them, but I want to back up and just make one point, which is that in its briefing before this court at pages 16 and 17 of its opening, I think Computer admits that it's raising a different issue than the one that was before the board.

[00:15:10] Speaker 02:
It says, in its decision on request for rehearing, the board, addressing only a different issue, found that simultaneous merchant and purchaser account functionality was not required for the same transaction.

[00:15:21] Speaker 01:
Nowhere did the board address... Well, he's saying the board addressed a different issue, but he's not necessarily conceding that he didn't raise this issue with the board below.

[00:15:30] Speaker 01:
He's just saying that the board's finding is problematic because it addressed a different question.

[00:15:38] Speaker 02:
Good point.

[00:15:39] Speaker 02:
He did point to two places where he alleges that he raised this issue below.

[00:15:42] Speaker 02:
So let's walk through those two.

[00:15:44] Speaker 02:
The first is in the patent owner response in 1808 and 1809.

[00:15:48] Speaker 02:
And what was going on in the patent owner response in 1808 and 1809 is that the patent owner was making a misguided argument to the board that they shouldn't institute CBM proceedings because the prior art that Square had presented was similar to the prior art that had been before the exam.

[00:16:07] Speaker 02:
So they're making a 325D argument in that section.

[00:16:10] Speaker 02:
And later on, they go on to talk in a great amount of detail about claim construction disputes and never raise bidirectional accounts in that context.

[00:16:20] Speaker 02:
And they go on to talk about the elements that are missing from the prior art, and again, never mention the bidirectional accounts in that context.

[00:16:28] Speaker 02:
So it was only in the context of this 325D discussion, and the board both

[00:16:35] Speaker 02:
rejected that 325D argument on its merits at Appendix 28.

[00:16:39] Speaker 02:
And also, at Appendix 45, which is the decision on the request for rehearing at footnote one, the board said that that was not a claim construction argument, that rather that argument was merely a compare and contrast between prior references that really wasn't relevant in the context it was waived.

[00:16:58] Speaker 02:
The board goes on in a fair amount of detail

[00:17:00] Speaker 02:
about this bidirectional accounts claim construction argument that it reviewed and says that that one wasn't raised in the earlier proceedings, but nonetheless goes on to look at the merits.

[00:17:13] Speaker 02:
And then the board didn't have the argument that's currently in front of this panel before it at all.

[00:17:19] Speaker 02:
The other citation to the earlier record that the computer references

[00:17:25] Speaker 02:
is this out-of-context suggestion that Square agreed with its construction, which just couldn't be further from the truth.

[00:17:33] Speaker 02:
Square cited the passage that we're all talking about now from the final history for the uncontroversial fact that there's this feature, that the account has to have a feature of being bidirectional, not to talk in any way shape or form about how that feature's put into place,

[00:17:52] Speaker 02:
Square even said, the specification does not define what constitutes assigning or prescribe in any particular method of assigning a role.

[00:18:01] Speaker 02:
Given the disclosure of the 808 patent, assigning is best understood as allowing a single user account to take on the role of recipient of payment or remitter of payment, depending on the transaction.

[00:18:12] Speaker 02:
So this idea that Square at some point agreed with what the computer is now advancing in the construction is

[00:18:20] Speaker 02:
not supported by the record.

[00:18:22] Speaker 01:
Let's talk about some of the merits.

[00:18:25] Speaker 01:
Assuming that we get past waiver, their argument is that in the prior art, you had this type of selection process and what they wanted to do was to come up with a better system so that when I go searching for a product, I automatically am treated

[00:18:50] Speaker 01:
as the purchaser versus when I'm responding to someone's search, then I'm automatically treated as the seller.

[00:18:59] Speaker 01:
So why isn't that a novel development over the prior art and something that reasonably could be within the context of this claim?

[00:19:07] Speaker 02:
Well, because it's a mischaracterization of what happened in the underlying record and in the file history.

[00:19:13] Speaker 02:
The Jane reference over which the alleged prosecution disclaimer was made

[00:19:19] Speaker 02:
It's a reference related to an eBay system, and it doesn't say anything about accounts.

[00:19:25] Speaker 02:
What it basically says is that a single user of the system can both buy things and sell things, and it can receive feedback.

[00:19:34] Speaker 02:
So it's about a method of providing feedback to somebody where you can see their feedback as a user

[00:19:43] Speaker 02:
as a purchaser and you can see their feedback as a seller in one place.

[00:19:48] Speaker 02:
It doesn't say anything about that user actually purchasing or selling.

[00:19:52] Speaker 02:
It essentially just says a person is a seller and a purchaser.

[00:19:58] Speaker 02:
And so the difference here, the difference in the Dalzell reference is that it is actually talking about a single account that both purchases and sells product.

[00:20:09] Speaker 02:
And that's detailed in

[00:20:13] Speaker 02:
the board's decision at 28 and 29, where they cite to nine different paragraphs of Dalzell.

[00:20:18] Speaker 02:
And then they actually cite to 17 different paragraphs from our expert witness, Dr. Saadhead, that talks about how Dalzell performs this bi-directional accounts limitation.

[00:20:28] Speaker 02:
And it's utterly different than the prior art that is supposedly distinguished in the prosecution history.

[00:20:35] Speaker 02:
It's also largely unrebutted because

[00:20:41] Speaker 02:
In looking at Delzal's disclosures of the bidirectional accounts limitation and of this assigning step, the board found that Dr. Sade's testimony was credible and persuasive.

[00:20:53] Speaker 02:
And the only thing that Think Computer submitted in response to that was a declaration from the inventor on the 808 patent and the CEO of Think Computer that the board found lacking corroboration and entitled to very little weight.

[00:21:07] Speaker 02:
So, you know, what the record shows with regard to the Delzel reference is that it absolutely discloses at the same level of detail as disclosed in the 808 patent.

[00:21:17] Speaker 03:
Well, you agree that Delzel is not identical.

[00:21:21] Speaker 03:
Is that right?

[00:21:22] Speaker 03:
Not identical to what, Your Honor?

[00:21:24] Speaker 03:
Not identical to what they're claiming.

[00:21:26] Speaker 02:
Well, I know what I was actually distinguishing just now is the reference that they claim to have disclaimed over.

[00:21:34] Speaker 02:
I actually think that the level of detail disclosed regarding the assigning step in the 808 patent is precisely the same as the level of detail disclosed regarding the assigning step in Dalzell.

[00:21:48] Speaker 03:
So you say it is identical to what they're claiming?

[00:21:53] Speaker 03:
Or as an alternative, all they would need would be details to distinguish Dalzell because it isn't identical.

[00:22:02] Speaker 02:
I do believe that to the extent that the element is disclosed in the AOA patent, it is identically disclosed in Dalzell.

[00:22:13] Speaker 02:
Does that answer your question?

[00:22:15] Speaker 03:
I don't think that's, the board did not find that it was the same, as I recall.

[00:22:22] Speaker 02:
The board did find that Dalzell, at appendix 28 and 29, the board did find that Dalzell

[00:22:32] Speaker 02:
contained, I mean, I don't think they use the word identical, but contained the bi-directional accounts limitation of the 808 patent.

[00:22:43] Speaker 03:
The general concept, but their claims go beyond the general concept.

[00:22:47] Speaker 03:
Is the question how far beyond they would need to go in order to distinguish Dalzell?

[00:22:53] Speaker 02:
So first of all, I don't believe that this element that we're talking about today, the assigning element, goes much beyond the general concept.

[00:23:02] Speaker 02:
The claim language is quite straightforward.

[00:23:06] Speaker 02:
The claim language talks about a feature of the account, not in any detail as to how it's put into place.

[00:23:12] Speaker 02:
Specification does the same thing, and DELZL does the same thing.

[00:23:16] Speaker 02:
So the board did find that these

[00:23:21] Speaker 02:
The claim one and its bidirectional accounts limitation, including its assigning step, were met by Dalzell and didn't distinguish the Dalzell reference from what's disclosed in the claims in any manner.

[00:23:35] Speaker 02:
The last point I'd like to talk about, unless Your Honors have more questions about the Dalzell reference, is just the merits of the claim construction position that's now before this court.

[00:23:47] Speaker 02:
The board's construction of the bidirectional accounts limitation

[00:23:51] Speaker 02:
is absolutely consistent with the disclosures in the 808 patent specification, in the claims, and in the file history.

[00:23:59] Speaker 02:
And as for this file history disclaimer argument, Judge O'Malley is absolutely right that the Notice of Allowance does not mention the bidirectional accounts limitation.

[00:24:12] Speaker 02:
It only mentions a different limitation, which is the product catalog.

[00:24:20] Speaker 02:
found that this claim language didn't require any detailed or expressed construction because it was straightforward.

[00:24:27] Speaker 02:
I mean, this assigning limitation is not the crux of the 808 patent.

[00:24:31] Speaker 02:
It's a, you know, essentially 11th hour argument that council for the computer came up with when the other arguments upon which it had been relying that are more central to the patent had failed.

[00:24:42] Speaker 02:
So there isn't a lot in the record in the 808 patent or otherwise in the record regarding this element.

[00:24:48] Speaker 02:
But the board did look at,

[00:24:50] Speaker 02:
ThinkComputers late raised bidirectional accounts limitation argument and it found that the argument fails because there is no file history disclaimer.

[00:25:01] Speaker 02:
It looked at the file history and it said that it found the reference unpersuasive and that it didn't alter its original understanding of the construction, which makes sense given that everything in the record talks about the feature of the account and not how the feature is put into place.

[00:25:18] Speaker 02:
That actually brings me to something that you heard from counsel for the computer to which I wanted to respond, which is that there's this discussion as to how the system assigns the account role.

[00:25:28] Speaker 02:
There's no disclosure in 808 patent in that level of detail.

[00:25:32] Speaker 02:
This is essentially an incidental step relating to a feature of the claim system.

[00:25:38] Speaker 02:
And all the disclosures are consistent with the idea that the user is going to make this selection, and then the account is essentially going to go into this particular mode.

[00:25:48] Speaker 02:
I don't really think there's much dispute that the user plays a role and then the system plays a role.

[00:25:54] Speaker 02:
And for that reason, I think the computer's argument fails for an additional reason, which is that they really haven't explained how this distinction and this claim construction for which they're currently arguing would change the result in this case.

[00:26:08] Speaker 02:
Dalzell has detailed disclosures regarding a single account, bidirectional account, and it has disclosures that are... Well, Dalzell really does, though, make it clear that it's a user preference.

[00:26:21] Speaker 02:
So, I think one thing that's really important in Dalzell is paragraph 49, where it describes, it defines user as user account.

[00:26:29] Speaker 02:
And throughout, as it talks about user, you can tell that what it's talking about is not just the human being, but the account.

[00:26:36] Speaker 02:
The account can be used for both purposes.

[00:26:39] Speaker 00:
And Dr. Sade has paragraphs in his declaration, I believe it's 147 to 164, where he goes into- Does it actually say, I'm sorry to interrupt you, but the term user refers to an individual or set of individuals associated with the user account.

[00:26:55] Speaker 00:
It doesn't say that it refers to a user account.

[00:26:59] Speaker 00:
Are you looking at paragraph 49?

[00:27:01] Speaker 00:
I'm looking at paragraph 49 on appendix 873.

[00:27:04] Speaker 02:
Our expert wrote this and interpreted it as a suggestion in context that the entire reference when talking about users is talking about user accounts.

[00:27:26] Speaker 00:
I'm just asking about the language that's in paragraph 49.

[00:27:31] Speaker 02:
So I think it's the associated with a particular user account language that's particularly important, because it's showing that it talks about how a user could also be a group of users.

[00:27:41] Speaker 02:
It could be a group of people who are selling something.

[00:27:43] Speaker 02:
But they're always going to be associated with this particular user account.

[00:27:47] Speaker 02:
And throughout the patent, user and user account are used interchangeably, but they're always used to refer to a single account, which is a bidirectional account.

[00:27:57] Speaker 01:
Does that answer your question?

[00:27:58] Speaker 01:
Well, but that's very different from a circumstance, whether you agree with him or not, but from a circumstance where you're not involving the user in the selection process.

[00:28:12] Speaker 01:
This actually expressly talks about the user being involved in the selection process.

[00:28:17] Speaker 02:
I don't think there's a disagreement whatsoever that a user is involved in this process.

[00:28:25] Speaker 01:
Well, yeah, involved in the process.

[00:28:28] Speaker 01:
But say I am manufacturing something that I like to sell, but I need to buy the ingredients.

[00:28:37] Speaker 01:
Say I'm baking something.

[00:28:38] Speaker 01:
I need to buy the ingredients and I need to sell the end product.

[00:28:42] Speaker 01:
And so the question is, do I have to make a selection as to which role I'm playing or is the mere fact that

[00:28:51] Speaker 01:
that there is an order going out automatically change that role.

[00:28:56] Speaker 02:
Correct.

[00:28:56] Speaker 02:
That's what I believe does all the discloses.

[00:28:58] Speaker 02:
Because in figures 1A and 1B, you can click sell yours here if you want to sell something.

[00:29:03] Speaker 02:
You can click buy yours here if you want to buy something.

[00:29:05] Speaker 02:
But there's no disclosure that you have to switch to a different account or anything like that.

[00:29:09] Speaker 02:
Everything is utterly consistent with the notion that the user is using a single account and that account will then reactively switch into the appropriate mode.

[00:29:18] Speaker 02:
which is identical to the level of detail disclosed about this element.

[00:29:22] Speaker 00:
But your argument is that even if we were to adopt the claim construction that's proposed by Fink, Delzel satisfies the claim limitation.

[00:29:34] Speaker 00:
But it seems as if right now you're now agreeing that there's some user selection that's required about whether you're going to be the buyer or the seller.

[00:29:44] Speaker 00:
And in fact, their claim construction, which might have been waived,

[00:29:47] Speaker 00:
is talking about there's no user selection.

[00:29:50] Speaker 00:
So I'm confused.

[00:29:52] Speaker 02:
I don't completely understand their claim construction, to be straight with you.

[00:29:57] Speaker 02:
That said, I know that on page nine of their reply brief, they say the user must choose what to buy or sell.

[00:30:03] Speaker 02:
The claim payment system makes this process easier than ever by responsibly assigning account roles.

[00:30:09] Speaker 02:
That's on page nine of their reply brief.

[00:30:11] Speaker 02:
That's exactly what I believe that Dozall does.

[00:30:13] Speaker 02:
So assuming that the representation at patronite of their account brief, of their reply brief, is consistent with their claim construction, I absolutely believe we need their claim.

[00:30:22] Speaker 01:
Where in Dalzell, point to me what figure were you referring to where you say that it automatically does that once the user identifies itself as a purchaser just by making a purchase?

[00:30:36] Speaker 02:
It's figures 1a and b, where it shows a sell yours here and add to shopping cart button

[00:30:43] Speaker 02:
And our expert's declaration discusses figures 1A and 1B and how a person of ordinary skill in the art would understand that to trigger the reflexive assignment of count rolls in his declaration at paragraph, let's see, well there's a number of paragraphs on it, bit 148 is the most

[00:31:08] Speaker 02:
critically relevant on Appendix 194, and the board relied upon that testimony finding it credible and persuasive to determine that the entire five-directional accounts limitation of the 808 patent was met by Dalzell.

[00:31:23] Speaker 04:
Any more questions?

[00:31:25] Speaker 04:
Any more questions, Square?

[00:31:27] Speaker 04:
Thank you, Ms.

[00:31:27] Speaker 04:
Schenberg.

[00:31:38] Speaker 03:
Mr. Rabikoff.

[00:31:40] Speaker 05:
Yeah, please, the court.

[00:31:42] Speaker 05:
So I want to get three points.

[00:31:46] Speaker 05:
First point is just to address the waiver argument.

[00:31:48] Speaker 05:
It's interesting that Square appears not to dispute the meaning of what I had read before.

[00:31:56] Speaker 05:
But again, I'm going to refer to Appendix 97 in Square's petition.

[00:32:01] Speaker 05:
Quote, notably, the claims say that these rules are assigned by the claim system

[00:32:07] Speaker 05:
The specification does not define what constitutes assigning or prescribes any particular method of assigning a role.

[00:32:14] Speaker 05:
That's different.

[00:32:14] Speaker 05:
Talking about the fact that the claim system selects the account roles, that's one thing.

[00:32:21] Speaker 05:
Another thing is, how does it go about this specific detail by detail?

[00:32:26] Speaker 05:
How does it select those roles?

[00:32:28] Speaker 05:
That's not disclosed.

[00:32:29] Speaker 05:
What is disclosed is that the payment system selects the account roles.

[00:32:34] Speaker 05:
So we have to distinguish between,

[00:32:37] Speaker 05:
this concept of selection where the payment system is selecting the account rules and the human user is selecting what to buy or sell.

[00:32:48] Speaker 01:
So we're supposed to do a claim construction and analysis of your specification that would, if we send it back, would require the board to find that it's, or require a court to find that it's not enabled?

[00:33:01] Speaker 01:
I mean, I don't understand your point.

[00:33:03] Speaker 05:
So Your Honor, this is the point that the board

[00:33:06] Speaker 05:
made a misconstruction with respect.

[00:33:08] Speaker 01:
But the construction you're describing now, you're essentially conceding that if we adopt that construction, that if you go back and look at the specification, there's nothing in the spec that enables that construction.

[00:33:19] Speaker 05:
No, Your Honor, that's not what I'm saying.

[00:33:21] Speaker 05:
I'm saying that the specification specifically says that the claim system selects the accountants.

[00:33:28] Speaker 01:
And where in the spec does it describe how that works then?

[00:33:31] Speaker 05:
How it does that?

[00:33:32] Speaker 05:
In fact, the board itself actually

[00:33:35] Speaker 05:
points to, I would say, one example of where that would be, which is Appendix 64 at 3, column 3, 15 to 22.

[00:33:45] Speaker 05:
I mean, that's where the reference of how the payment system is designed so that it can selectively function as either a merchant or purchaser during any particular transaction.

[00:33:55] Speaker 05:
But the critical part is that this process of selecting the user account when that's appropriate has to be carried out automatically.

[00:34:04] Speaker 05:
after the user input elicits this process, the rest has to be carried out automatically.

[00:34:10] Speaker 03:
But it isn't the problem for both the reference and the spec, is that once you get to the finer tuning of how it works, that is carrying it out automatically, that there isn't sufficient detail in the spec to distinguish from Dollazelle that may not do it automatically.

[00:34:30] Speaker 03:
All it says is it's automatic.

[00:34:33] Speaker 05:
Well, Your Honor, it goes beyond automatic.

[00:34:35] Speaker 05:
It's that for every single transaction, it has to be selected appropriately.

[00:34:41] Speaker 05:
And of course, there's other pieces to that.

[00:34:44] Speaker 05:
But the key part is that there is a selected, it adaptively selects the proper account rule.

[00:34:50] Speaker 05:
And the key word is within a payment system, within a unified payment system, unlike the prior art, where you have to put in separate payment methods.

[00:35:00] Speaker 05:
You have to have separate databases.

[00:35:01] Speaker 05:
All that is separate, and the user is turning the switch.

[00:35:05] Speaker 05:
I'm now going to go to the buying screen.

[00:35:07] Speaker 05:
Turn the switch.

[00:35:08] Speaker 05:
Now I'm going to go to the selling screen.

[00:35:09] Speaker 05:
It's a fundamental difference, and it's fleshed out completely in the specification where it discusses how it has to be designed.

[00:35:17] Speaker 03:
But not sufficiently in the claims is, I think, what we need to decide to distinguish Dell Cell.

[00:35:25] Speaker 05:
Right.

[00:35:26] Speaker 05:
And I think that the concept, the claims have to that

[00:35:30] Speaker 05:
The account roles have to be adapted to selectively function as either a merchant or purchaser during any particular transaction.

[00:35:36] Speaker 05:
These have to be flexible account roles.

[00:35:38] Speaker 05:
And I believe that it fleshes out the contours sufficiently to understand within the scope of the claims that you must have the payment account selecting these roles.

[00:35:50] Speaker 05:
And specifically, the one thing we know for certain is that it's not simply the user that has to navigate this and choose which account role.

[00:35:58] Speaker 05:
I think that's a fun role.

[00:36:00] Speaker 05:
And again, with respect to waiver, Square has explicitly raised the idea that the claim system is what has to select the roles.

[00:36:08] Speaker 05:
So this is really both.

[00:36:10] Speaker 05:
And to look a little more at waiver, Think had, first of all, never opposed that construction and thereby accepted it.

[00:36:17] Speaker 05:
But beyond that, did explicitly.

[00:36:19] Speaker 05:
And the fact that the heading of the section where this construction was discussed involved analysis of alleged prior art.

[00:36:28] Speaker 05:
It still very explicitly chose that prosecution history section where, hey, the prior art only discloses a user assuming these different account roles, but not in accounts within a payment system being adapted to selectively choose these roles in response to user input.

[00:36:46] Speaker 05:
And that's a fundamental difference.

[00:36:47] Speaker 05:
The automation is what is fundamental.

[00:36:50] Speaker 05:
It's what allows all of the elements of the claim to work in harmony and, again, allow a single database

[00:36:57] Speaker 05:
allow a single payment system, everything being unified, right?

[00:37:01] Speaker 05:
Instead of going to separate pages and having a user have to navigate choosing, you know, now I'm in my selling account, I have to operate these things, now I'm in my buying account, I have to carry out these operations.

[00:37:13] Speaker 05:
It's all unified.

[00:37:14] Speaker 05:
And that was just simply not in the prior art.

[00:37:16] Speaker 05:
And one quick point about what I want to make on Dalzell is that the board never found that Dalzell specifically disclosed a bidirectional account limitation.

[00:37:26] Speaker 05:
I want to read exactly what.

[00:37:28] Speaker 05:
So the board only found that, quote, a buyer from a particular account can add a seller feature to that particular account without the need to create a whole new account.

[00:37:37] Speaker 05:
Now, I point this out because this is the only finding that the board made with respect to the bi-directional account limitation.

[00:37:43] Speaker 05:
It did not make any other finding.

[00:37:45] Speaker 05:
And this was also the only place where the board referenced the expert testimony, not with respect to any of the other expert's findings, but only with respect

[00:37:54] Speaker 05:
to the quote that I just provided, the fact that you have allegedly a single account where you can add a seller feature and have fixed account roles.

[00:38:03] Speaker 05:
So that's a far cry from saying that you have flexible selection of account roles by a payment system.

[00:38:09] Speaker 05:
Those are two fundamentally different things.

[00:38:11] Speaker 05:
And as Ben discussed, Delzel explicitly says that it's the user that's selecting whether there's a

[00:38:19] Speaker 05:
whether you're buying or selling within the account of whether you're taking on the role of a buyer account or a seller account.

[00:38:27] Speaker 05:
So the board had only disclosed user creation of fixed account rules, followed by user selection of account rules for buying or selling.

[00:38:41] Speaker 05:
Are there any further questions?

[00:38:42] Speaker 03:
Please try and wrap it up.

[00:38:43] Speaker 03:
I think we have the arguments on both sides.

[00:38:48] Speaker 03:
Okay.

[00:38:48] Speaker 03:
Thank you.

[00:38:49] Speaker 03:
Thank you both.

[00:38:50] Speaker 03:
The case is taken under submission.