[00:00:04] Speaker 04: Our first case today is 2017-1355, Elbit versus Dales. [00:00:12] Speaker 04: Is it Sudarshan? [00:00:14] Speaker 04: Sudarshan? [00:00:14] Speaker 04: Am I saying it right? [00:00:15] Speaker 03: Yes, Your Honor. [00:00:16] Speaker 04: OK, please proceed. [00:00:16] Speaker 03: Thank you, Your Honor, and may it please the Court. [00:00:21] Speaker 03: Under KSR, the claims before the Court today are at best predictable variations of the prior art and are therefore obvious. [00:00:29] Speaker 03: The prior art describes navigation systems [00:00:32] Speaker 03: using the very same inertial sensors. [00:00:35] Speaker 05: I'm going to ask some questions to clarify for myself, both you and your opposing counsel. [00:00:42] Speaker 05: I just want to establish some parameters. [00:00:46] Speaker 05: First, the parties dispute whether the relative angular rate signal would have been obvious to a Posita in light of McFarland and Velger, right? [00:00:56] Speaker 05: Yes, sir. [00:00:57] Speaker 05: Second, the parties never requested that the PTAB [00:01:01] Speaker 05: construe relative angular rate signal, and now disagree on the meaning of the limitation. [00:01:07] Speaker 05: Isn't that right? [00:01:09] Speaker 03: I agree, Your Honor. [00:01:10] Speaker 03: The parties never ask for constructions, but I don't think there's a meaningful dispute as to the meaning of that limitation. [00:01:18] Speaker 05: OK. [00:01:18] Speaker 05: Third, Thales argues that MacFarlane and Velger calculate relative orientation via the old way, which is a three-step process described by their expert [00:01:30] Speaker 05: And Elbit argues that McFarland and Velger merely integrate, then subtract. [00:01:38] Speaker 05: Am I correct? [00:01:39] Speaker 03: Yes, Your Honor. [00:01:40] Speaker 05: Okay. [00:01:40] Speaker 05: Fourth, Thales argues that claim three calculates the relative angular rate signal via the new way, which is a two-step process described by their expert. [00:01:52] Speaker 05: And Elbit argues that claim three merely subtracts, then integrates. [00:02:00] Speaker 03: That's right, your honor. [00:02:01] Speaker 05: Okay, and fifth, the parties dispute whether it would have been obvious to a posita to replace the old way or integrating then subtracting calculation in the prior art with a new way, i.e. [00:02:13] Speaker 05: subtracting then integrating calculation. [00:02:16] Speaker 05: Is that correct? [00:02:17] Speaker 03: It's correct insofar as the premise we do reject the notion that there's anything such as a new way or an old way. [00:02:23] Speaker 03: We believe it's just one way. [00:02:24] Speaker 03: It's all mathematics. [00:02:25] Speaker 05: Yeah, if it all adds up to the same result, you say it's the same thing. [00:02:28] Speaker 03: Yes, your honor. [00:02:29] Speaker 05: Okay, thank you. [00:02:33] Speaker 03: Let me start, Your Honors, by addressing, I think, the basic topography of the claims at issue in this case, which I think proves that the only difference between the prior art and the claims is a mathematical ordering of steps. [00:02:47] Speaker 03: And we think one of the things that the Board here missed is the importance of Talas essentially conceding that [00:02:56] Speaker 03: the reverse order of steps as represented by claim six is obvious over the prior art and they have not appealed that finding to the court. [00:03:04] Speaker 03: So claim six is addressed, claim six is the same system, the same inertial sensors with the same inputs and it provides actually the same output. [00:03:16] Speaker 05: The only place I can find the use of the word substantial evidence in your blue brief is in the opening standard of review section nowhere else. [00:03:25] Speaker 05: Do you [00:03:26] Speaker 05: challenge whether substantial evidence supports the PTAP's findings? [00:03:30] Speaker 03: Your Honor, we do. [00:03:32] Speaker 03: We do. [00:03:32] Speaker 03: At our blue group at page 19, we challenged the crux of the PTAP's conclusion here, which was that our expert had somehow conceded that he had not shown the applicability of the sum of intervals principle to the claims at issue. [00:03:48] Speaker 03: At our blue group at page 19, we showed indeed he had proven that the sum of intervals principle applies to inertial navigation. [00:03:55] Speaker 03: What we believe happened here is that the board unfairly cherry picked one snippet from Dr. Graywall, that was our expert, his testimony. [00:04:04] Speaker 03: At Appendix 17 of the board's analysis, they rely on one. [00:04:09] Speaker 05: That's not the same thing. [00:04:10] Speaker 05: I didn't ask you whether you thought you had evidence which could support a decision the other way. [00:04:18] Speaker 05: I'm asking you whether you challenge that substantial evidence exists [00:04:24] Speaker 05: to support the PTEP's findings, and page 19 doesn't do that. [00:04:28] Speaker 03: Your Honor, you're correct that we have not framed this case as substantial evidence review. [00:04:32] Speaker 03: You're certainly right. [00:04:33] Speaker 03: Thank you. [00:04:36] Speaker 03: If I may, I would like to address the crux of the board's analysis in this case. [00:04:42] Speaker 03: The board concluded that Dr. Graywall had made a concession here. [00:04:47] Speaker 03: And the board looked at testimony where Dr. Graywall was asked, have you shown the proof of the [00:04:54] Speaker 03: sum of integrals principle to the navigation equations here, and his testimony was that he had not. [00:05:00] Speaker 03: But I think the board extrapolated the importance of that testimony to a conclusion that's unsupported. [00:05:06] Speaker 03: There are four critical pieces of evidence that the board ignored in reaching its erroneous findings. [00:05:12] Speaker 03: One, at appendix 839, Dr. Graywall showed, using the Velga reference that's admitted prior art, that the Velga reference teaches the very same systems that we're talking about here. [00:05:23] Speaker 03: And the Velger system uses the reverse ordering of steps. [00:05:26] Speaker 03: And Dr. Graywell explained that in the context of this invention, that ordering of steps is immaterial as a matter of calculus. [00:05:33] Speaker 03: And neither side has come forward with that. [00:05:36] Speaker 03: Neither side or the board has ever said there's an exception to calculus that applies here. [00:05:41] Speaker 03: Talos has conceded that as a matter of calculus, the sum or difference of two integrals is equal to the integral of the sum or difference. [00:05:49] Speaker 03: That's an established fact, and it's not conceded. [00:05:52] Speaker 03: We frame this case, Your Honor, as a legal error, because under KSR, what we have is a predictable variation of the prior art. [00:06:00] Speaker 03: We've also pointed in our briefs to the in-ray handful. [00:06:02] Speaker 05: Which, according to their expert, works better. [00:06:06] Speaker 03: Your Honor, that's correct. [00:06:07] Speaker 03: That's correct. [00:06:08] Speaker 03: But the board, we think it's critical. [00:06:10] Speaker 03: The board did not rely on that testimony from the expert. [00:06:13] Speaker 03: There's nothing in the board's decision crediting that opinion of the expert. [00:06:18] Speaker 03: The board's decision does not come out and say, [00:06:20] Speaker 03: that this ordering of steps results in some improvement over the prior art. [00:06:25] Speaker 03: And as the court is well aware under administrative law principles, this court can only affirm the board's decision on the basis of how the board reached its conclusion under in Ray Lee. [00:06:38] Speaker 04: Well, is this the same basis, or is it just looking at different evidence that is in the record that supports the board's decision? [00:06:45] Speaker 04: I'm not sure this is a chennery problem, because the board did decide [00:06:48] Speaker 04: this issue, they just didn't cite that particular evidence in support of their resolution. [00:06:55] Speaker 03: Your Honor, I think you're correct. [00:06:56] Speaker 03: But I think it's really important here to really zoom in on the board's analysis. [00:07:01] Speaker 03: It's very brief. [00:07:02] Speaker 03: We think it's unusually brief. [00:07:04] Speaker 03: The conclusion that the board reached was that our experts' testimony on motivation essentially was unsupported. [00:07:13] Speaker 03: But it would be, in our view, respectfully improper for this court [00:07:17] Speaker 03: to rely on anything that Tala's expert opined on about improvements over the prior art, because the board didn't rely on that. [00:07:26] Speaker 05: Let me get to something that really bothers me a bit. [00:07:30] Speaker 05: And that is, as Tala's explained in the red brief, 17 through 22, and you're well aware, your opening brief discusses numerous materials that are not in the record that you attempted [00:07:46] Speaker 05: to supplement, we denied that. [00:07:49] Speaker 03: Yes, Your Honor. [00:07:49] Speaker 05: And you have it in the record. [00:07:52] Speaker 05: Why shouldn't we award sanctions when you deliberately relied upon material outside the record? [00:08:00] Speaker 03: Your Honor, we believed in good faith that the statements that TALAS made to the European, that TALAS predecessor made to the European Patent Office were so contradictory to the arguments they've made here that it was appropriate to bring a motion to supplement [00:08:15] Speaker 03: or to bring a motion for judicial... That's fine. [00:08:18] Speaker 03: You can bring a motion to supplement it. [00:08:19] Speaker 05: It was denied. [00:08:20] Speaker 03: Yes, Your Honor. [00:08:21] Speaker 05: Well, we believe... So how's it in the blue brief? [00:08:25] Speaker 03: Your Honor, we understand the court's order here to strike it, but we think, again, the matter of attorney's fees was certainly not a frivolous motion on our part. [00:08:38] Speaker 03: Tallis literally told the European office that [00:08:41] Speaker 03: There's essentially no difference between these two. [00:08:43] Speaker 03: No, no. [00:08:44] Speaker 05: I didn't say your motion was frivolous. [00:08:46] Speaker 05: I said you're including material outside the record, knowing it's outside the record is improper. [00:08:54] Speaker 05: How is it not improper? [00:08:55] Speaker 03: Your Honor, respectfully, we believe it's not improper because the motion to supplement relies, as we've argued, that Tallis had a duty of candor to the PTAB to bring this forward. [00:09:06] Speaker 03: It was a contradictory statement. [00:09:08] Speaker 03: And so at least for that basis, [00:09:10] Speaker 03: We have a good faith basis to have argued that the motion should be supplemented. [00:09:14] Speaker 03: We in good faith did not discover... I didn't. [00:09:16] Speaker 05: We're talking Apples and Oranges Council. [00:09:18] Speaker 05: I'm not saying you don't have a good faith basis for filing the motion. [00:09:22] Speaker 05: You may very well have a good faith basis. [00:09:24] Speaker 05: I'm saying that including that material in the record when you know that you've filed a motion to supplement and it has not yet been granted is improper. [00:09:33] Speaker 05: How is it not improper? [00:09:37] Speaker 03: Your Honor, looking back on it, we probably should have waited to supplement, waited to file a new brief. [00:09:44] Speaker 05: So that's, in effect, a concession that opposing councils should get their fees on those aspects of the case. [00:09:50] Speaker 03: No, Your Honor, respectfully, I think the statement is so outrageously contradictory that it was proper for us, having discovered it, to put it in our opening brief. [00:09:58] Speaker 03: We thought there was really nothing they could do to hide from that statement. [00:10:02] Speaker 05: You were sure we would grant the motion, which we didn't. [00:10:05] Speaker 03: We got that wrong, Your Honor. [00:10:06] Speaker 05: That's sort of where I come from, where I practice law, that's sort of rolling the dice, isn't it? [00:10:14] Speaker 03: Your Honor, we were certainly confident in our position that the statement was improper and that we were disappointed that the court did not take interest in it. [00:10:21] Speaker 03: You threw snake eyes. [00:10:24] Speaker 03: One plus one. [00:10:27] Speaker 03: Your Honor, I understand where the court's coming from. [00:10:31] Speaker 04: Do you want to save the rest of your time for rebuttal? [00:10:33] Speaker 04: Yes, Your Honor. [00:10:34] Speaker 04: Okay, very good. [00:10:34] Speaker 04: Let's hear from the other side. [00:10:35] Speaker 04: Okay, you've got to tell me how to pronounce your name. [00:10:41] Speaker 04: His was actually easier than yours. [00:10:44] Speaker 04: Go ahead. [00:10:45] Speaker 01: Good morning, Your Honors. [00:10:46] Speaker 01: Dana Konechny on behalf of... Konechky? [00:10:48] Speaker 01: Konechny. [00:10:49] Speaker 04: Konechny, got it. [00:10:51] Speaker 01: On behalf of the athlete... Please, proceed. [00:10:58] Speaker 02: Contrary to Elbit's position, the board didn't require Elbit to prove that math generally applies to motion tracking. [00:11:06] Speaker 02: Rather, the board found that Elbit failed to prove its contention that the claimed invention can be obtained by applying elementary math to the prior art. [00:11:16] Speaker 05: What about my five questions I asked? [00:11:20] Speaker 02: And Your Honor, I tried to write down the questions at the same time, but if you could restate them, it would be easiest. [00:11:26] Speaker 05: The parties dispute whether the relative angular rate signal would have been obvious to have preceded Enlightenment, Farland and Velger. [00:11:32] Speaker 05: That is correct. [00:11:34] Speaker 05: The second one is the parties never requested that the PTAP construe relative angular rate signal and now disagree on the meaning of that. [00:11:44] Speaker 02: That is also correct, Your Honor. [00:11:45] Speaker 05: Your opposing counsel thinks you don't disagree on that, so he said. [00:11:49] Speaker 05: seem to say? [00:11:51] Speaker 02: Well, I suppose it depends on, my position is that we do disagree on what that element is. [00:12:00] Speaker 05: OK. [00:12:00] Speaker 05: Third, Dallas argues that MacFarlane and Velger calculate relative orientation by the old way, i.e. [00:12:08] Speaker 05: a three-step process. [00:12:10] Speaker 05: And Elbit argues that MacFarlane and Velger merely integrate, then subtract. [00:12:19] Speaker 02: That's correct. [00:12:20] Speaker 02: That's at the level of abstraction that those statements were made in the briefing. [00:12:25] Speaker 02: But I would only add. [00:12:27] Speaker 02: Yes, please. [00:12:28] Speaker 05: I want an explanation of all this background stuff. [00:12:30] Speaker 02: Sure. [00:12:33] Speaker 02: Because I think it's important to a number of the arguments that were made that we strongly disagree that the difference between the old way and the new way is simply a reordering of steps. [00:12:46] Speaker 02: We think that the record is clear that [00:12:48] Speaker 02: In fact, there are different steps associated with the old way and the new way. [00:12:53] Speaker 02: And in particular, the new way omits, enables a person who practices this to omit steps which are critical to the advantages of the new way. [00:13:05] Speaker 05: Fourth, Thales argues that claim three calculates the relative angular rate signal via the new way, i.e. [00:13:11] Speaker 05: a two-step. [00:13:13] Speaker 05: And Elbit argues that claim three simply subtracts and then integrates. [00:13:19] Speaker 02: That's an accurate statement of the arguments, Your Honor. [00:13:24] Speaker 02: Same. [00:13:24] Speaker 05: You're going to make the same. [00:13:25] Speaker 02: I know. [00:13:26] Speaker 02: The details are more complicated in terms of just the steps. [00:13:31] Speaker 02: It's not a simple changing of the order of the steps. [00:13:36] Speaker 05: And fifth, the parties dispute whether it would have been obvious to a posita to replace the old way with the new way. [00:13:46] Speaker 02: That's correct, with the caveats I mentioned before. [00:13:50] Speaker 05: Yeah. [00:13:51] Speaker 05: OK. [00:13:51] Speaker 05: Thank you. [00:13:53] Speaker 05: Where do you argue that the old way and the new way use different navigation equations below? [00:14:01] Speaker 02: So that argument is throughout the brief and also in the... Below. [00:14:11] Speaker 02: Would the court like a red brief reference to that? [00:14:15] Speaker 05: Or where'd you argue it below, not in front of us? [00:14:20] Speaker 02: Sure. [00:14:21] Speaker 02: The argument that there were different steps is really the fundamental part of the entire argument that we were making. [00:14:29] Speaker 02: The new way allows us to amend. [00:14:32] Speaker 05: In quotes, old way, new way. [00:14:34] Speaker 05: Where'd you argue it below? [00:14:37] Speaker 05: I can use different navigation equations. [00:14:44] Speaker 05: Old way uses one, new way uses a different navigational equation. [00:14:48] Speaker 05: Where'd you argue that in the record? [00:14:50] Speaker 02: Sure. [00:14:51] Speaker 02: I would point the court, for example, to Dr. Welch's affidavit or his declaration that we filed in support of our patent owner's response [00:15:12] Speaker 02: At appendix 2117 through 21120, I believe, will be one reference to this, where Dr. Welch explains, for example, on appendix 2118 [00:15:47] Speaker 02: At the top of paragraph 54. [00:15:49] Speaker 02: I'm sorry, Your Honor. [00:15:58] Speaker 04: 2118. [00:15:59] Speaker 02: 2118. [00:16:02] Speaker 02: It's page 33 of the Dr. Welch's declaration. [00:16:09] Speaker 02: The section that this paragraph appears in is titled, Petition and Misunderstands the Breakthrough of the 159 Patent. [00:16:17] Speaker 02: and the new functionality it enables. [00:16:19] Speaker 02: And there is an express reference to our response to Dr. Graywall's arguments. [00:16:27] Speaker 02: And it expressly references equation 10 of the 159 patent. [00:16:32] Speaker 02: So we do address the equations of the patent. [00:16:37] Speaker 02: The equations of the patent, by the way, appear in the description of the patent. [00:16:41] Speaker 02: They are not incorporated into the claims. [00:16:44] Speaker 02: we specifically describe the new way as being related to equation 10 of the pattern here, and it goes on. [00:17:09] Speaker 02: So we also, in addition to that, just in case there's [00:17:14] Speaker 02: Any question about it? [00:17:16] Speaker 02: Page A-19, in the oral hearing, we discuss the McFarland patent in detail. [00:17:24] Speaker 02: And the argument that the McFarland patent could have disclosed the new way is another area where all this was addressed below. [00:17:37] Speaker 02: The argument was, initially, that Albert [00:17:43] Speaker 02: made the point that the new way might be part of the McFarland patent. [00:17:49] Speaker 02: That was something that at the point of the oral argument below, Elbit conceded, quote, that the relative rate signal was not explicitly disclosed in the prior art. [00:18:03] Speaker 02: That's at A468. [00:18:05] Speaker 02: The board nevertheless heard our arguments with respect to [00:18:10] Speaker 02: the McFarland patent and independently concluded, based on the process that was involved in the McFarland patent, that it practiced only the old way and not the new way. [00:18:26] Speaker 05: So in the grade break at page 17, Elbit [00:18:41] Speaker 05: Elbit says that you omitted a key word, other, to distort Dr. Graywall's testimony. [00:18:49] Speaker 05: I want you to discuss that. [00:18:51] Speaker 02: Sure. [00:18:53] Speaker 02: So first, we certainly did not intend to distort anyone's testimony on the record. [00:19:00] Speaker 02: And I'd like to make the point that this case really didn't hinge on any particular thing that Dr. Graywall said during his deposition. [00:19:09] Speaker 02: Dr. Graywall's admissions during his deposition make the point most clearly, but the real problem is that there is no evidence or support in the record for Dr. Graywall's opinion that the old way is mathematically equivalent to the new way. [00:19:27] Speaker 05: Does the admission of other change his testimony? [00:19:33] Speaker 02: No, it does not. [00:19:35] Speaker 02: My understanding of the term other in the context of his deposition is other than his declaration and other than the calculus textbook upon which he relied, which is calculus by Anton. [00:19:52] Speaker 02: That's my understanding of what other meant when that question was asked and answered. [00:19:57] Speaker 05: One other question I want for cleanup. [00:20:00] Speaker 05: And that is, you've asked for sanctions. [00:20:03] Speaker 05: And I raised that question when you were opposing counsel. [00:20:05] Speaker 05: What number are you seeking? [00:20:08] Speaker 05: You sort of have to unplug the inclusion of that language. [00:20:13] Speaker 05: What did it cost you? [00:20:15] Speaker 02: Your Honor, in terms of just that language, I don't have a number here today. [00:20:21] Speaker 02: We're happy to provide a substantiation in terms of not just a number, but our records to support what number we would provide if the court wishes. [00:20:34] Speaker 02: The reason that we included that in our brief was twofold. [00:20:42] Speaker 02: First, all of it could have been avoided had Elbit simply withdrawn its motion. [00:20:48] Speaker 02: The document in question was a document that Elbit actually had. [00:20:53] Speaker 05: Well, they didn't have to withdraw their motion. [00:20:56] Speaker 05: The problem I have is that they included the information in the blue brief when they had a pending motion, which eventually was denied. [00:21:05] Speaker 02: Fair enough, Your Honor. [00:21:06] Speaker 02: The only other reason that we included it was because, although I understand that Elbit argues that they made their arguments in good faith, their arguments are fundamentally based on our alleged bad faith activity. [00:21:19] Speaker 02: And we found no support for that in the record. [00:21:23] Speaker 02: And that was the reason for why we included that sentence in our brief. [00:21:33] Speaker 02: I want to get back to Judge Wallach's question regarding other, because I want to make clear that regardless of what Dr. Graywall meant by the term other, the fact remains that nowhere does Dr. Graywall show that the equations for the new way, for example, described in the patent at equations 10, 11, and 12, that's at A37, could be obtained [00:22:02] Speaker 02: from the prior art equations, any prior art equations that are the navigation equations. [00:22:09] Speaker 02: For example, the equations in the Velga reference at A727. [00:22:13] Speaker 02: What Dr. Graywall did was offer an elementary calculus textbook that shows the sum of integrals property in one dimension. [00:22:26] Speaker 02: Dr. Graywall admitted that the calculus by Anton textbook did not teach. [00:22:31] Speaker 02: how to solve navigation equations in three dimensions. [00:22:36] Speaker 02: He also admitted that, quote, attitude information in three dimensions can no longer be obtained by simple integration of the measured turn rate. [00:22:44] Speaker 02: And of course, this elementary calculus textbook is all about simple integration. [00:22:50] Speaker 02: He also testified that he did not reference any publications that, quote, actually show the application of the sum and difference property of integrals [00:23:00] Speaker 02: to the navigation equation of the old way. [00:23:03] Speaker 02: That's A2755, and I believe that that reference does not include the term other in either the question or the answer. [00:23:16] Speaker 02: As the board stated, the petitioner, Elbit here, quote, fails to establish beyond the preponderance of the evidence that it would have been obvious to one of ordinary skill in the art [00:23:28] Speaker 02: to apply the sum of integrals principle to obtain claim three. [00:23:33] Speaker 02: Claim three is a new way claim. [00:23:35] Speaker 02: So what the board rested its decision on was not the lack of evidence of general applicability of math to this problem, but rather the lack of support for applying this basic mathematical equation to the prior art [00:23:57] Speaker 02: and arriving at the claimed indictment. [00:24:03] Speaker 02: Because substantial evidence supports those findings, this court should affirm. [00:24:10] Speaker 04: Sorry, I thought you were done. [00:24:12] Speaker 04: Are you done? [00:24:13] Speaker 02: If there are no further questions, I am happy to withdraw. [00:24:18] Speaker 04: Thank you. [00:24:18] Speaker 04: All right, let's have Verbunnel, Mr. Sudershen. [00:24:31] Speaker 03: Thank you, Your Honors. [00:24:34] Speaker 03: We strongly disagree with the notion that Elbit's experts simply did not prove that the navigation principle here, that the sum of integrals principle applies to the claims at issue. [00:24:45] Speaker 03: I think it's important to go to Appendix 2036, where Dr. Graywall showed the applicability of this principle to the claims at issue here. [00:24:57] Speaker 03: What he showed was, he showed that the inertial sensors in this case, which are measuring angles, they're basically gyroscopes that are taking measurements over discrete periods of time, say every tenth of a second. [00:25:10] Speaker 03: They're taking those angles in, and then they're summing up those changes in angles over time. [00:25:15] Speaker 00: What paragraph are you referring to here? [00:25:17] Speaker 00: Did you say page 2036? [00:25:19] Speaker 03: Yes, Your Honor. [00:25:20] Speaker 03: The top of 2036 back to 2035. [00:25:22] Speaker 03: It's paragraph 18. [00:25:25] Speaker 03: And he shows, using the [00:25:27] Speaker 03: the actual navigation equations that issue in this case, that the so-called old way is equivalent to the so-called new way. [00:25:37] Speaker 03: And that's because as you're summing up these differences in angles between the one sensor on the tracked object and the one sensor on the moving reference, you can either take the difference between the two sensors as you go and then sum them up at the end, or you can [00:25:53] Speaker 03: do the incremental differences on one sensor and the incremental differences on the other sensor, and relate them at the end, and then they're exactly the same. [00:26:01] Speaker 03: The critical point here, Your Honors, is the board's decision just does not account for the one-sided nature of testimony in this case. [00:26:12] Speaker 03: Dr. Welch. [00:26:13] Speaker 04: But your problem, and I think that Judge Wallach summed it up for you in the direct, isn't [00:26:20] Speaker 04: whether or not there is substantial evidence in this record to have supported the opposite factual conclusion about Dr. Graywall. [00:26:27] Speaker 04: The question is, was there substantial evidence in the record to support the one the board actually reached? [00:26:31] Speaker 04: And what you're pointing to is absolutely the evidence that could have supported an alternative fact finding, but that's not the one the board made. [00:26:38] Speaker 04: And so what you have to contest, you can't show us where he said something that would have helped you if they found for you. [00:26:44] Speaker 04: You have to show us [00:26:45] Speaker 04: why they were wrong, for example, when he admitted the new way eliminates drift error that isn't somehow manifesting a difference between the two calculations such that their fact finding is wrong. [00:27:00] Speaker 04: So basically what you have to do is prove that they got wrong all of the things they rejected that caused them to reject the Great Wall testimony. [00:27:07] Speaker 04: You can't just randomly point to something he said that helps you. [00:27:10] Speaker 04: And he was your expert. [00:27:11] Speaker 04: Of course he said something that helps you. [00:27:13] Speaker 04: What you have to deal with is the things he said that the board found hurt you. [00:27:17] Speaker 03: I appreciate that, Your Honor. [00:27:19] Speaker 03: I still think that under a substantial evidence standard of review, substantial evidence does not support the board's finding because... You conceded that you didn't argue that in your blue brief. [00:27:30] Speaker 03: Your Honor, we did not make that as a legal argument, but we did argue that the one piece of evidence that they hang Dr. Graywall on was unsupported. [00:27:37] Speaker 03: Because what he testified was what he hadn't shown in the context of navigation equations. [00:27:41] Speaker 03: And the claims are not limited to those navigation equations. [00:27:45] Speaker 03: Your honor, I think at a minimum, we would propose one alternative here, if the court is concerned about the state of the record, because there's no mention of the testimony from Dr. Welch on the benefits of this other way. [00:28:00] Speaker 03: is a remand to consider whether there's actually any improvements over the prior art. [00:28:04] Speaker 03: I don't think we're concerned about the state of the record. [00:28:06] Speaker 03: We're concerned about the state of the briefs. [00:28:09] Speaker 00: If the only issue on appeal is the ultimate conclusion of obviousness, then we can't look behind the board's fact findings, right? [00:28:20] Speaker 03: That's correct, Your Honor. [00:28:21] Speaker 03: That's correct. [00:28:21] Speaker 03: But we do think that one of the underlying grand factors here [00:28:25] Speaker 03: is incorrect. [00:28:26] Speaker 03: And that's all that the board relied on here, was a supposed concession by Dr. Graywall, which is not really the admission of anything. [00:28:33] Speaker 03: Dr. Graywall did not conceive that he did not show the applicability of this principle to the claims. [00:28:39] Speaker 03: And if I could just kind of give this one final cell, Dr. Graywall showed the applicability of the sum of integrals principle to the claim systems. [00:28:47] Speaker 03: There is one cherry pick testimony here that the board relied on, that he didn't show the applicability to the navigation equations in the patent [00:28:55] Speaker 03: But the navigation equations in the patent are not the claimed systems. [00:28:59] Speaker 03: And so that, we think, is an unfair leap. [00:29:03] Speaker 03: And again, going back to the first principles of ASR, what we have here is that the very same system is in the prior art. [00:29:10] Speaker 03: All you've changed is in order of steps. [00:29:12] Speaker 03: According to calculus that no one's disputing, that ordering is material. [00:29:16] Speaker 03: And so we think this is a textbook case of obviousness. [00:29:20] Speaker 03: And it seems I'm running out of time. [00:29:23] Speaker 03: I'll rest my argument. [00:29:24] Speaker 04: I thank both counsel for their argument. [00:29:26] Speaker 04: The case is taken under submission.