[00:00:02] Speaker 00:
The first case for argument this morning is 171578, Allure Energy v. Yanko.

[00:00:08] Speaker 00:
Mr. Art, is anybody ready?

[00:00:20] Speaker 03:
Good morning, Your Honor.

[00:00:21] Speaker 03:
May it please the Court.

[00:00:22] Speaker 03:
We're here on an appeal from two separate IPR board decisions involving claims of a single patent, the 344 patent.

[00:00:31] Speaker 03:
The 344 patent claims relate to a system and method of controlling devices at a house by tracking the locations of the household members by using their mobile devices to provide the location information.

[00:00:45] Speaker 03:
The claims accomplish this by determining the relative locations of each user with respect to the site, and then comparing those locations, and then based on the comparison deciding what action should be taken to control the device at the site.

[00:01:00] Speaker 03:
The claims also require, claims 1 and 16 in particular, taking into account individual preferences that each user might have as to how the device at the site would be altered, such that the home can be conditioned appropriately to the user that's closest to the site.

[00:01:19] Speaker 03:
It was this combination that differed over the prior art in the prosecution history, the combination of the comparison and the combination of the individual user preferences.

[00:01:31] Speaker 03:
The board here committed legal error with respect to the claim terms comparison and profile, as well as claims 11 and 13.

[00:01:41] Speaker 03:
There is also insufficient evidence to support the board's findings as to other terms, including proximity selector.

[00:01:49] Speaker 03:
I'd like to turn first to the comparison issue.

[00:01:52] Speaker 03:
The board here committed legal error.

[00:01:56] Speaker 03:
First, it determined the meaning of the term comparison.

[00:01:59] Speaker 00:
They accepted your claim constructions.

[00:02:01] Speaker 03:
Accepted both parties' claim constructions, correct.

[00:02:04] Speaker 03:
It determined that a comparison requires an examination of two or more items to establish similarities and dissimilarities.

[00:02:13] Speaker 03:
And the claim tells us what those two or more items that are being compared or examined are is the location of the relative distances of both mobile devices to the site.

[00:02:23] Speaker 03:
So you cobble that together, and the BRI says, I need to take the location of each individual

[00:02:29] Speaker 03:
with respect to the site, examine it, and determine similarities and dissimilarities.

[00:02:36] Speaker 03:
But the court in its opinion, I'm sorry, the board in its opinion, while saying and acknowledging that that's the BRI, says in its analysis of the prior art, well, the BRI doesn't really require establishing similarities and dissimilarities in all instances.

[00:02:54] Speaker 03:
We agree.

[00:02:55] Speaker 03:
But it has to be able to establish similarities and dissimilarities in some instances.

[00:03:01] Speaker 03:
And it is that feature that's missing from the Yamashita reference.

[00:03:05] Speaker 04:
And I don't know if this question makes any sense, but if the single variable or single piece of information that's being looked at is location, what's the difference between similarities and dissimilarities?

[00:03:20] Speaker 03:
The difference is, well, first of all, the Yamashita doesn't compare location.

[00:03:23] Speaker 03:
But when you're comparing locations, you have to be able to determine where are they?

[00:03:28] Speaker 03:
Where are they with respect to one another?

[00:03:30] Speaker 03:
Namely, is one closer to the site?

[00:03:32] Speaker 04:
You're focused, as I understand it, in arguing against not so much the board's announced claim construction as its application of the construction when looking at the prior art.

[00:03:46] Speaker 04:
As I understand it, you're saying the board dropped

[00:03:50] Speaker 04:
either similarities or dissimilarities, it needed to consider both of them.

[00:03:56] Speaker 04:
And I just want to understand concretely, what does it mean to consider both when you're talking about location?

[00:04:03] Speaker 03:
Well, it means when you're talking about location.

[00:04:06] Speaker 03:
And I guess when we're emphasizing the fact that Yamashita, the reference, can't establish similarities and dissimilarities, our point is the fact that they can't determine where a user is.

[00:04:16] Speaker 03:
and can't determine where one is with respect to one another means that you can't compare their actual locations.

[00:04:24] Speaker 03:
So when we talk about Yamashita and the board says that

[00:04:28] Speaker 03:
They have messages.

[00:04:30] Speaker 04:
But isn't that a different point that is, I think maybe, at least I had understood it to be a different point to say, Yamashita, I think by everybody's concession, does not pinpoint latitude and longitude coordinates for each person.

[00:04:48] Speaker 04:
But that's not what is necessary to make the comparison.

[00:04:53] Speaker 04:
I had understood you to me being a different argument about this claim construction that having used similarities and dissimilarities in the institution, I guess, announcing to the claim construction, the board then later dropped one of them.

[00:05:10] Speaker 04:
And I'm trying to understand what that means.

[00:05:13] Speaker 03:
Yes, there's two prongs to the argument.

[00:05:16] Speaker 03:
The first is that Yamashita doesn't have the ability to compare

[00:05:21] Speaker 03:
uh... to make a full comparison to be able to establish likes and dislikes namely are they are the users in the same location or the users in different locations that similarities and dissimilarities namely the processor is looking at various point at the same time it's doing comparisons of where each user is with respect to the site and are they in the same place similarities

[00:05:47] Speaker 04:
or are they in different places dissimilarities?

[00:06:04] Speaker 03:
But that goes to the second point, which is because Yamashita doesn't, and it doesn't, we are not contending that the claims require actual latitude or longitude information, but there has to be sufficient information

[00:06:19] Speaker 03:
indicative of where a user is, because the claims require location or location information.

[00:06:25] Speaker 03:
There needs to be sufficient information about the user's location transmitted to the processor, or transmitted to the system, which is the function or the structure that performs the function of the comparison.

[00:06:39] Speaker 03:
And with that location information, the processor can then determine, are the users in the same place?

[00:06:46] Speaker 03:
or the users in a different place.

[00:06:48] Speaker 03:
So they look at where they are, and the focus of, and the reason this is important, Your Honor, is the focus of the 344 patent specification is, with respect to the two user embodiment is, let's take a look at where each user is.

[00:07:03] Speaker 03:
And let's determine which is closer to the site.

[00:07:06] Speaker 03:
And depending upon which user is closer to the site, as an example, it could be a user being further away from the site.

[00:07:12] Speaker 03:
That's the schedule

[00:07:14] Speaker 03:
or the preferences that we're going to implement to condition the site for that user.

[00:07:20] Speaker 03:
And Yamashita doesn't transmit any of that information.

[00:07:23] Speaker 03:
It transmits a message, which conceivably can be based on where a user is.

[00:07:31] Speaker 02:
Whether the user is within 300 meters or not, right?

[00:07:36] Speaker 03:
Yes.

[00:07:36] Speaker 03:
And as their expert, what the board relied on

[00:07:40] Speaker 03:
to say that Yamashita teaches.

[00:07:42] Speaker 02:
And then Yamashita shows an embodiment where you can have a requirement that both of the individuals be transmitting a message to do something.

[00:07:54] Speaker 02:
So it determines whether both of those individuals are within 300 meters, right?

[00:08:00] Speaker 03:
The system does not, Your Honor.

[00:08:02] Speaker 03:
The location information where the user is, there's rules that are embodied solely on the mobile devices.

[00:08:09] Speaker 03:
So the example that you gave where when a user is within 300 yards, that's programmed on each individual mobile device.

[00:08:17] Speaker 03:
And as their expert acknowledged in an appendix paragraph 1917, the mobile devices don't communicate with one another.

[00:08:25] Speaker 03:
And their location information remains solely on the mobile device.

[00:08:31] Speaker 03:
In his declaration, he said that location, this is Dr. Selker in paragraph 24, or I'm sorry, paragraph 214 of his declaration, which the board relied on, he said location information was transmitted with the messages.

[00:08:45] Speaker 03:
And that's what the board cited to as their basis for why that Yamashita taught that limitation of the claim.

[00:08:52] Speaker 03:
But that declaration was given before his deposition in the case.

[00:08:55] Speaker 03:
And in his deposition, he clarified, is the term I'll use, or conceded,

[00:09:00] Speaker 03:
that the messages are only sent and the messages do not include any location or any location information.

[00:09:07] Speaker 03:
And that's at the appendix, page 1917, with the, I'm sorry, I gave you the prior one, the user's location relative to the site being only on the mobile device is appendix 1930 to 31.

[00:09:19] Speaker 02:
I'm not sure that I understand.

[00:09:22] Speaker 02:
If you look at 543, which is Yamashita, I think, in paragraph, in column 10,

[00:09:29] Speaker 02:
beginning around line 22.

[00:09:32] Speaker 02:
It talks about imposing a requirement that you have a message from a plurality of mobile terminals, right?

[00:09:45] Speaker 02:
So in other words, they both have to be within the 300 meters.

[00:09:51] Speaker 03:
I agree, but that information remains solely on the mobile device.

[00:09:56] Speaker 03:
The messages are sent

[00:09:58] Speaker 03:
from the mobile devices to the control terminal based on the satisfaction of the requirements you just read.

[00:10:04] Speaker 03:
And one mobile device could send that message at one time.

[00:10:10] Speaker 03:
It would sit resident in the control terminal until the other mobile device at some other point in time sends its message.

[00:10:18] Speaker 03:
The lookup table says we have a match.

[00:10:20] Speaker 03:
Take action.

[00:10:21] Speaker 03:
But the system never knows.

[00:10:24] Speaker 03:
never knows where each individual is to compare the location, because all of that information remains solely on the mobile device.

[00:10:32] Speaker 03:
The only thing that's sent from the mobile device to the control terminal is a message.

[00:10:39] Speaker 03:
Now, the message is based, or can be based, on location.

[00:10:43] Speaker 03:
But it can also be based on other things.

[00:10:46] Speaker 03:
And because of that, because no information is sent, the control terminal not only doesn't know

[00:10:51] Speaker 03:
what triggered the message.

[00:10:53] Speaker 03:
It could have been distance.

[00:10:55] Speaker 03:
It could have been time.

[00:10:56] Speaker 03:
It could have been a variety of other things.

[00:10:57] Speaker 02:
But the terminal is deciding, is knowing, whether the mobile device is within 300 meters or not, right?

[00:11:04] Speaker 03:
No, it's not.

[00:11:05] Speaker 02:
Because it can't receive the signal if it's not.

[00:11:09] Speaker 03:
It receives the message.

[00:11:10] Speaker 03:
But the mobile terminal doesn't ever get those control requirements.

[00:11:15] Speaker 03:
And the passages that they send talk about the control requirements being resident.

[00:11:20] Speaker 03:
on the mobile device.

[00:11:21] Speaker 03:
And the user can set up those control requirements to whatever message requirements that you want.

[00:11:28] Speaker 03:
Those are not transferred to the control terminal.

[00:11:33] Speaker 03:
A control terminal doesn't ever know where the user's location is.

[00:11:37] Speaker 04:
Let me see if I understand this.

[00:11:39] Speaker 04:
The set of rules that govern when the mobile device sends the message

[00:11:45] Speaker 04:
I think you're saying is not a set of rules that the receiving terminal understands.

[00:11:51] Speaker 04:
So when it gets a message, it doesn't know why it's gotten the message.

[00:11:56] Speaker 03:
It's exactly right.

[00:11:58] Speaker 03:
Okay.

[00:11:58] Speaker 02:
Because all of it was within 300 meters.

[00:12:01] Speaker 03:
No, all it gets is a message that says approaching or late or whatever message.

[00:12:07] Speaker 02:
Okay.

[00:12:07] Speaker 02:
But it doesn't get the approaching message unless it's within 300 meters, right?

[00:12:13] Speaker 03:
whatever the user's programmed, if he's programmed it within 300 meters, they would not get it.

[00:12:19] Speaker 03:
The control terminal wouldn't receive it.

[00:12:21] Speaker 03:
But it is a distinction.

[00:12:24] Speaker 03:
But the reason that that's important is because the claim requires there to be a comparison of location.

[00:12:31] Speaker 03:
And then based on that comparison, it takes some action.

[00:12:35] Speaker 03:
And if the mobile terminal never, I'm sorry, the control terminal never knows where the users are,

[00:12:41] Speaker 03:
How can it compare their locations, particularly when the messages are not sent at the same time?

[00:12:48] Speaker 03:
They sit resident.

[00:12:49] Speaker 03:
Those messages just wait and satisfy a test, and then some action is taken.

[00:12:54] Speaker 03:
They're not looking at where the users are.

[00:12:57] Speaker 03:
And so it would, to me, be inconsistent with the specification to say that we're looking only for a match when the users arguably would be in the same place.

[00:13:08] Speaker 03:
When the entirety of the patent specification

[00:13:10] Speaker 03:
with respect to the mobile device embodiment is focused on, let's find out when the users are in different places to be able to take unique action for the profiles of claim one or the proximity selector of claim six based on differentiation of the user's locations.

[00:13:30] Speaker 03:
And I've been going to reserve the remainder of my time for rebuttal.

[00:13:43] Speaker 01:
Good morning, Your Honors.

[00:13:44] Speaker 01:
May it please the Court?

[00:13:46] Speaker 01:
Judge Dyke already mentioned Figure 2 of the Yamashita patent.

[00:13:52] Speaker 01:
And just to round out the discussion of that, I think it's also helpful to look at Figure 12, which is on page 547 of the appendix.

[00:14:01] Speaker 01:
And Figure 12 is just another illustration of what's going on in Figure 2.

[00:14:07] Speaker 01:
And we have two mobile devices.

[00:14:12] Speaker 00:
Can I just make sure we're looking at the same thing?

[00:14:13] Speaker 00:
You're not talking about 547 of the appendix, right?

[00:14:16] Speaker 00:
You're talking about?

[00:14:17] Speaker 01:
I'm sorry, Your Honor.

[00:14:19] Speaker 01:
Page 530 of the appendix.

[00:14:29] Speaker 01:
And in Figure 12, Rule B in this table shows us that the system

[00:14:37] Speaker 01:
does not turn off the air conditioning until both Terminal A and Terminal B are going away, or in other words, until they are both more than 300 meters away from the house.

[00:14:47] Speaker 01:
And so there we have an illustration of both similarities and differences.

[00:14:51] Speaker 01:
If there is a difference in the status of Terminal A and Terminal B, in other words, if one has already gone away but one is still in the house, the air conditioner remains on,

[00:15:03] Speaker 01:
If they're both the same, if we have a similarity, and they've both gone more than 300 meters away from the house, then the air conditioner turns off.

[00:15:13] Speaker 01:
So under the board's claim construction, figure 12 presents a good illustration of how that works in Yamashita.

[00:15:19] Speaker 01:
Dr. Selker also emphasized that a person of ordinary skill in the yard would view the systems that we're dealing here from the perspective of the system as a whole.

[00:15:32] Speaker 01:
claims that we're talking about right now.

[00:15:34] Speaker 01:
And so it's not just about whether one processor would do this or one processor would know, but we have to look at the whole system.

[00:15:45] Speaker 01:
Finally, I would just point out that in the three, I'm sorry.

[00:15:49] Speaker 04:
The question that I asked before, does the receiving terminal understand anything about, anything about location from the message it gets?

[00:16:09] Speaker 04:
I don't think the... I asked that question in the form of whether

[00:16:13] Speaker 04:
the rules that are on the mobile device that say, here's when you send a message, whether any aspect of those rules are on the receiving device.

[00:16:23] Speaker 04:
So the receiving device says, oh, I got this message.

[00:16:26] Speaker 04:
I look at what the rules are that say, here's why you're getting the message.

[00:16:31] Speaker 04:
And it tells me something about location.

[00:16:34] Speaker 01:
I agree that the processor on the control terminal does not

[00:16:39] Speaker 01:
probably does not know precisely that, for instance, Terminal A is 500 meters away from the house or even that it's 300 meters or 250 meters away.

[00:16:48] Speaker 04:
I don't think I care about that.

[00:16:50] Speaker 04:
That's why I used anything about location.

[00:16:53] Speaker 02:
It does know whether it's within 300 meters or not because it wouldn't get the tripping signal or the

[00:17:00] Speaker 02:
signal that it needs to pay attention to if it's not within 300 meters, right?

[00:17:04] Speaker 01:
Yes, I think that's the way to describe it.

[00:17:06] Speaker 01:
And I think that's why Dr. Selker was saying that we have to look at what's going on, that interaction between both the control terminal and the mobile devices.

[00:17:17] Speaker 01:
But as Judge Dyke said, nothing actually happens.

[00:17:20] Speaker 01:
The control terminal doesn't know to do anything until both, until the rules have been satisfied.

[00:17:28] Speaker 04:
I'm sorry, but maybe I can, let me see if I can create an example.

[00:17:33] Speaker 04:
Does Yamashita ever say that it's always or

[00:17:39] Speaker 04:
meter rule, or that, or might it be a planning to come home in two hours rule that the mobile phone sets, or the mobile phone uses something completely unrelated to distance to, to send, send a message.

[00:18:01] Speaker 01:
Yamashita does say that users can, can set up, can do custom settings.

[00:18:07] Speaker 04:
But communicate the settings to the recipient.

[00:18:12] Speaker 01:
I don't think there's that much detail in Yamashita, but there is not that much detail in the 344 specification either.

[00:18:20] Speaker 01:
And as we noted in our brief, for instance, there are many examples in the 344 specification where the system is doing no more than what Yamashita is doing.

[00:18:31] Speaker 01:
For instance, there is a scenario where the

[00:18:37] Speaker 01:
the temperature isn't adjusted until all users go more than three miles away from the house.

[00:18:44] Speaker 01:
There's another scenario where the users participate in a demand-driven energy program.

[00:18:54] Speaker 01:
So the settings of the appliances in the house are configured based on the price of energy.

[00:19:01] Speaker 01:
And in those situations, the base unit doesn't

[00:19:05] Speaker 01:
know anything about the exact location of those mobile devices.

[00:19:10] Speaker 01:
It doesn't know any particulars.

[00:19:12] Speaker 02:
There's... Yeah, but it does know that it's within 300 meters, because it doesn't fall into the approaching category in the standard rule here, unless it's within 300 meters, right?

[00:19:28] Speaker 01:
That's absolutely true.

[00:19:29] Speaker 01:
And the board pointed out that

[00:19:32] Speaker 01:
You know, there is... At least it knows whether it's within 300 meters or not within 300 meters.

[00:19:38] Speaker 01:
Right.

[00:19:38] Speaker 01:
I mean, there's nothing deficient about the fact that Yamashita uses rules.

[00:19:44] Speaker 01:
We can see even in the 344 pattern that there are rules-based schemes that the claim to mention uses as well.

[00:19:56] Speaker 01:
Unless there are any further questions, I would ask that the court affirm.

[00:20:02] Speaker 03:
Thank you.

[00:20:14] Speaker 03:
Your Honor, in response to the question, and I know I've answered this before, but I want to reiterate it.

[00:20:20] Speaker 03:
The control terminal only receives a message.

[00:20:23] Speaker 03:
And as Dr. Selker conceded, the message doesn't include anything about location.

[00:20:29] Speaker 02:
But it doesn't get the message if it's not within 300 meters.

[00:20:33] Speaker 03:
I agree with that, but claim one as an example requires that the processor is the thing that performs the comparison.

[00:20:40] Speaker 03:
And what the processor compares is the location of each device relative to the site.

[00:20:47] Speaker 03:
And the processor that they claim exists in Yamashita that performs this quote unquote comparison is on the control terminal.

[00:20:55] Speaker 03:
If the control terminal in Yamashita never receives where each user is relative to the site, the processor can't compare that information, which is why, as you heard counsel say, Dr. Selker says, well, the system knows where everyone is.

[00:21:12] Speaker 03:
What does he mean?

[00:21:13] Speaker 03:
And we quoted this in our brief.

[00:21:14] Speaker 03:
He means the people, because the mobile devices which have the location information don't communicate with one another.

[00:21:21] Speaker 03:
And the mobile devices which have the location information don't send that to the control terminal.

[00:21:26] Speaker 03:
So as he acknowledged, the control terminal never knows which user is closer to the site.

[00:21:34] Speaker 03:
And if you can't determine which user is closer to the site, you don't know where they are.

[00:21:39] Speaker 03:
So while they receive a message that can be indicative of a person crossing a geofence of 300 meters,

[00:21:49] Speaker 03:
As Your Honor indicated also, there are other control requirements, and they're with reference to Figure 10 of Yamashita in Column 16.

[00:21:57] Speaker 03:
It talks about it can be linear distance.

[00:22:00] Speaker 03:
It can be time.

[00:22:01] Speaker 03:
There can be a variety of other things that trigger the messages from the mobile devices to the control terminal.

[00:22:08] Speaker 03:
That the control terminal has no insight as to why it's receiving a message.

[00:22:13] Speaker 03:
It's simply a simple lookup table that says, I have a message that says this.

[00:22:17] Speaker 03:
I have a message that says this.

[00:22:19] Speaker 03:
And that's in the multiple mobile terminal.

[00:22:22] Speaker 03:
For the single terminal, it just looks for one.

[00:22:24] Speaker 03:
And it has no idea where the other user is.

[00:22:26] Speaker 03:
But for the two, if it receives both, it only waits for two matching messages.

[00:22:33] Speaker 03:
It has no idea where they are.

[00:22:35] Speaker 03:
It has no idea what triggered the messages.

[00:22:38] Speaker 03:
It just takes action.

[00:22:39] Speaker 03:
And that simply can't be the comparison set forth in the claim, because the specification

[00:22:46] Speaker 03:
This is an unreasonable application of the BRI to say it can be met by a simple matching, particularly when in view of the fact that comparison and profiles were the portion with respect to claim one that were added and what the examiner indicated were allowable in the notice of allowance.

[00:23:04] Speaker 03:
I see my time is up unless there's any further questions.