[00:00:00] Speaker 04:
is 171652, in-ray life watch technologies.

[00:00:39] Speaker 04:
Good morning.

[00:00:40] Speaker 00:
Good morning, Your Honor.

[00:00:42] Speaker 00:
This case involves just one issue, whether the written description of the 136 priority application.

[00:00:47] Speaker 03:
At page six of the blue brief, you produce a family tree of the relevant patents.

[00:00:53] Speaker 03:
Where's that in the record?

[00:00:58] Speaker 00:
The family tree is not in the record.

[00:01:00] Speaker 00:
We provided that just for the convenience of the court.

[00:01:04] Speaker 00:
The history of these patents is very complicated, so this was generated using public payer.

[00:01:10] Speaker 03:
In the blue brief at 30, you say that the PTAB correctly recited this court's precedent, but it then applied its own inventor recognition standard.

[00:01:22] Speaker 03:
But it appears to me that the PTAB merely determined whether life watch

[00:01:25] Speaker 03:
had, quote, possession of the claimed invention as required by our precedent.

[00:01:32] Speaker 03:
Can you show me specifically where the PTAB required more than our precedent demands?

[00:01:37] Speaker 00:
Yeah, the PTAB's decision begins by reciting the correct standard.

[00:01:42] Speaker 00:
But then as you move through the decision, so he started pages, I think it's maybe three and four of the decision.

[00:01:47] Speaker 00:
The laws recited correctly about possession and the binding precedent there.

[00:01:52] Speaker 00:
I think the most clear statement is on page 11

[00:01:55] Speaker 00:
of the QTAS decision, and it's italicized there.

[00:01:59] Speaker 00:
What the board says is the patent owner did not demonstrate the inventors knew and recognized, and this part's in italics, as part of their invention that the monitoring apparatus could be used by the patient as a general purpose phone for making phone calls to any desired party.

[00:02:15] Speaker 00:
That's probably the most clear articulation of that, but there's some other places where inventor recognition is referenced.

[00:02:21] Speaker 00:
Appendix 13 is one.

[00:02:24] Speaker 00:
And then also appendix 12, where there's a discussion of whether the inventors possessed the concept.

[00:02:32] Speaker 00:
That seems to refer not to whether or not the POSA would recognize that a multipurpose personal data accessory was disclosed, but rather whether the inventors had this concept in mind.

[00:02:45] Speaker 03:
Did Dr. Vims ever say that the inventors were in possession or something like that?

[00:02:52] Speaker 03:
of the 136 applications non-health monitoring function.

[00:02:58] Speaker 00:
So what he says is that the person of ordinary skill would recognize that the inventors were in possession of a device that was capable of performing the non-health monitoring function.

[00:03:09] Speaker 00:
So yes, I believe that starts at paragraph 52 of his declaration.

[00:03:13] Speaker 03:
52?

[00:03:15] Speaker 00:
Right, correct.

[00:03:17] Speaker 00:
51 and 52.

[00:03:20] Speaker 00:
His declaration starts at appendix page 1746.

[00:03:22] Speaker 00:
Yeah.

[00:03:26] Speaker 00:
And then the paragraphs in question where I think this is most clear is.

[00:03:40] Speaker 03:
I'm looking at 52.

[00:03:46] Speaker 00:
It says, a person of ordinary skill in the art would have understood that the cellular monitor 12, which communicates with the monitoring station over the public telephone network, could have likewise communicated over the public telephone network with other cellular landline phones.

[00:04:05] Speaker 00:
And then it goes on to paragraph 54, where he states, for at least the foregoing reason is my opinion that the POSA in March 1999

[00:04:14] Speaker 00:
would have understood that the JIVA patent described a cellular health monitor that could be used for health monitoring as well as a general purpose cellular telephone.

[00:04:21] Speaker 00:
The cellular telephone circuitry components of the cellular health monitor allow it to receive cellular telephone calls from any cellular phone or landline phone over the public telephone network.

[00:04:33] Speaker 04:
And what the board says about that is it recognizes he stated that it could be used

[00:04:40] Speaker 04:
as a cellular phone, but does not state that it was used for this purpose, nor that the inventors recognized it as such.

[00:04:47] Speaker 00:
That's correct, Your Honor.

[00:04:48] Speaker 00:
The board draws a would-be-could distinction.

[00:04:51] Speaker 00:
That does not apply here in the context of this claim, which is for a multipurpose personal data accessory, that the claim construction simply requires to have functionalities.

[00:05:00] Speaker 00:
It's a functional claim limitation, in other words.

[00:05:02] Speaker 00:
So the device doesn't actually have to be spelled out in the specification that it was used for each particular purpose,

[00:05:10] Speaker 00:
It simply has to have that functionality.

[00:05:11] Speaker 03:
So you're saying it's inherent.

[00:05:13] Speaker 03:
But how do you reconcile your inherency arguments with our precedent that says the specification must disclose the invention?

[00:05:22] Speaker 00:
Well, that's one of the places where inherency can fill a gap.

[00:05:26] Speaker 00:
In a situation like this, because the specification discloses a device that is capable of performing these functions and that a person of ordinary skill would necessarily know would be capable of performing these functions.

[00:05:37] Speaker 00:
And that's what Dr. Rims testifies to.

[00:05:40] Speaker 03:
Well, I'm looking at Autotext VBMW.

[00:05:44] Speaker 03:
It is the specification, not the knowledge of a person's skill in the art, that must supply the novel aspects of the invention.

[00:05:54] Speaker 00:
Autotext VBMW?

[00:05:56] Speaker 03:
Yeah, us in 2007.

[00:06:01] Speaker 00:
There's another case law stating that the relevant test is what the person of ordinary skill would know about what's disclosed in the specification.

[00:06:08] Speaker 00:
And so in a situation like this,

[00:06:09] Speaker 00:
or the component that the board says is not spelled out and disclosed expressly was something that was known to a person of ordinary skill in the art.

[00:06:18] Speaker 00:
This is not the novel aspect of the invention here, the non-health monitoring calls.

[00:06:23] Speaker 00:
The novel aspect was using this general purpose device for making health monitoring type communications.

[00:06:31] Speaker 00:
And the person of ordinary skill would have known that that general purpose device was capable of those other types of communications.

[00:06:37] Speaker 00:
And so in that situation, you don't need to spell out in the text of the specification those conventional known functionalities that the person of ordinary skill is already going to know about.

[00:06:46] Speaker 00:
That's the same issue with the Godel v. Sugana, which is the case that the board relies on.

[00:06:50] Speaker 00:
In that case, it's a 166 amino acid pre-sequence for this human fibroblast interferon.

[00:06:58] Speaker 00:
And what the court said in that case is that using that pre-sequence, the person of ordinary skill might have found it obvious to get to the mature sequence

[00:07:06] Speaker 00:
But there were deficiencies in the knowledge base of the person of ordinary skill in the art.

[00:07:10] Speaker 00:
It was not a known, that mature sequence.

[00:07:12] Speaker 00:
Yes, the person of ordinary skill could have figured it out.

[00:07:14] Speaker 00:
They could have gotten there, but they didn't know it.

[00:07:16] Speaker 00:
Here it's a bit different, because a wireless circuitry for a cellular phone, the person of ordinary skill, like Mr. Bims, looking at that, is going to know, just looking at it, I can use this for a general purpose cellular telephone call.

[00:07:30] Speaker 00:
What was novel was using that device for the specific health monitoring type functionalities.

[00:07:36] Speaker 00:
And there's no dispute that that latter point, that using it for the health monitoring, was in fact disclosed in the specification.

[00:07:44] Speaker 00:
So it's sort of an unusual situation where the component that was known to oppose it was what the board found was not adequately disclosed in this case.

[00:07:55] Speaker 00:
I'd like to turn to the express fact lines of the board.

[00:07:59] Speaker 00:
On pages five and six of the board's decision,

[00:08:06] Speaker 00:
The board adopts the testimony of Dr. Bims, stating that LifeWatch's expert Dr. Bims testified in his declaration that the cellular monitor 12 described in the 136 application had the cellular and wireless circuitry that enabled it to be used as a cellular telephone.

[00:08:22] Speaker 00:
Dr. Bims' testimony is supported by sound scientific reasoning and factual evidence.

[00:08:27] Speaker 00:
And the board goes on to the next page to state that we find Dr. Bims' testimony to credibly establish that the monitoring apparatus of the 136 application

[00:08:35] Speaker 00:
could be used to make and receive cellular phone calls for other non-health monitoring purposes.

[00:08:41] Speaker 00:
Those fact findings by themselves should have been enough under this court's standard for written description, which requires that the description adequately describe the invention such that it reasonably conveys to those of skills in the art that the inventor has possession of the claim subject matter as of the filing date.

[00:08:58] Speaker 00:
And because of those fact findings, there's no factual dispute here that's needed to be resolved in order

[00:09:04] Speaker 00:
find in favor of life watch that this application should have been allowed over these rejections.

[00:09:10] Speaker 00:
I want to talk about the argument the Patent Office makes in its brief, which pertains to a passage on page 13 of the board's decision.

[00:09:17] Speaker 00:
And the Patent Office says that instead of a legal issue about the standards of the written description requirement, this case instead turns on this fact finding on page 13.

[00:09:26] Speaker 04:
Well, written description is a fact question.

[00:09:32] Speaker 00:
It is.

[00:09:33] Speaker 00:
But when there's an error in the legal standard that the tribunal below applies, then that would be a legal error.

[00:09:40] Speaker 00:
So our position is that the fact findings are established here, that establish the correct legal standard that life watches application, not the party date, but there was an error in the law.

[00:09:53] Speaker 00:
The case is access data is the case for that holding.

[00:09:59] Speaker 00:
The sentence that the board relies on, first of all,

[00:10:02] Speaker 00:
or the director relies on, excuse me, on page 13, is not actually a fact finding.

[00:10:08] Speaker 00:
It states instead that the 878 patents mentioned of the 136 application, the discussion of the 878 invention, is consistent with the conclusion that the 136 application does not describe a, quote, general purpose cellular telephone, end quote.

[00:10:25] Speaker 00:
So the board states there that this disclosure and the

[00:10:30] Speaker 00:
actual patent would be consistent with such a conclusion, but doesn't go the next step to actually draw the conclusion that the 136 application does not disclose a cellular phone.

[00:10:39] Speaker 00:
And also, in the context of that page, what the board is talking about is the general purpose component, which is, once again, the non-health monitoring functionality, not the cell phone itself.

[00:10:50] Speaker 00:
So I think it's a bit of a stretch to say this is a fact finding.

[00:10:53] Speaker 00:
But even if the court agrees with the director that it is a fact finding, it does not matter, because the claim is directed to a multipurpose

[00:11:00] Speaker 00:
personal data accessory, which the claim construction from the board, which is undisputed and which the patent specification spells out, is not limited to a cellular phone.

[00:11:09] Speaker 00:
It's any device that can general purpose device a PDA or the patent specification a column five says or the like.

[00:11:17] Speaker 00:
It could be some other general purpose device.

[00:11:19] Speaker 00:
It's not limited to a cellular phone.

[00:11:20] Speaker 00:
So even if this is found to be a fact finding, the earlier fact findings which state the opposite and are sufficient and it's

[00:11:29] Speaker 00:
in fact, development, because all that's needed is the wireless circuitry for which there's no dispute.

[00:11:34] Speaker 00:
There's disclosure in the earlier application.

[00:11:42] Speaker 00:
If there are no questions, I'll reserve my own time.

[00:11:52] Speaker 01:
Thank you.

[00:11:52] Speaker 01:
May I please report?

[00:11:54] Speaker 01:
As my opposing counsel said, there's only one issue, whether the disclosure from the 99 application

[00:11:59] Speaker 01:
sufficiently shows that the inventors had possession of the invention, which was later claimed in a 2004 continuation part application.

[00:12:11] Speaker 01:
A continuation part application is a patent filing that claims priority, but also adds a certain amount of new matter.

[00:12:18] Speaker 04:
I think this is really about the legal standard we're using.

[00:12:24] Speaker 04:
And your friend cited page five.

[00:12:26] Speaker 04:
and the board's finding that Dr. Vims testified.

[00:12:30] Speaker 04:
He described the 136 application as cellular and wireless circuitry that enabled it to be used as a cellular telephone.

[00:12:40] Speaker 04:
So the board makes a finding that there was enough disclosure in the specification for the 136 for a person skilled in the art or anyone to understand

[00:12:51] Speaker 04:
or said another way that the inventor had possession of something that could be used as a cellular phone.

[00:12:58] Speaker 04:
Is that wrong?

[00:13:00] Speaker 04:
And if so, why isn't that sufficient?

[00:13:04] Speaker 01:
It's not wrong that the board and Dr. Bim said that the innards of a cell phone communication was there.

[00:13:14] Speaker 01:
But the only thing that was disclosed was using those innards to communicate with a central health monitoring station.

[00:13:21] Speaker 01:
So there is only, there was only disclosure of health monitoring functions.

[00:13:27] Speaker 01:
The claim

[00:13:29] Speaker 01:
is to a multipurpose device.

[00:13:31] Speaker 01:
And specifically, when you read the specification and context, the claim is to what we would think of as a more advanced cell phone, like a smartphone-type device, where you're loading software onto that device, as opposed to a very specific hardware device for health monitoring.

[00:13:50] Speaker 02:
But it doesn't have to be a smartphone, right?

[00:13:52] Speaker 01:
It does not, no.

[00:13:53] Speaker 02:
It could just be one that makes a call outside.

[00:13:58] Speaker 02:
to location other than, let's say, a hospital or a clinic.

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

[00:14:01] Speaker 01:
There needs to be some disclosure of some function other than health monitoring.

[00:14:07] Speaker 02:
Why isn't this finding enough, then?

[00:14:10] Speaker 01:
Because it doesn't show that the inventors had possession of any idea beyond that of using it for health monitoring.

[00:14:24] Speaker 04:
So it's not about what's disclosed in terms of structure.

[00:14:28] Speaker 04:
It's a question of what's disclosed in terms of function.

[00:14:33] Speaker 01:
I mean, I think the multipurpose device is seen as a functional thing.

[00:14:38] Speaker 01:
But I think, I mean, even if we want to look at the structure, there's not structure disclosed that would indicate that the inventor

[00:14:51] Speaker 01:
was thinking about making a phone call to somebody else.

[00:14:54] Speaker 01:
I mean, if we look at the disclosure.

[00:14:57] Speaker 02:
But that's not the question.

[00:14:59] Speaker 02:
That's whether the inventor had possession.

[00:15:04] Speaker 01:
Right.

[00:15:04] Speaker 01:
Whether the inventor had possession and actually invented the claimed invention.

[00:15:09] Speaker 01:
And the claimed invention is to a multipurpose device.

[00:15:14] Speaker 02:
And if there's a finding that the device could make a phone call,

[00:15:19] Speaker 02:
Why isn't that sufficient to show possession?

[00:15:22] Speaker 02:
I guess the question is one of the relationship between function and possession.

[00:15:32] Speaker 01:
Right.

[00:15:32] Speaker 01:
So the finding was that you would, because the law also says that if you are taking something and you have to make it obvious, that's not enough.

[00:15:42] Speaker 01:
It has to be something that is actually disclosed in the specification by the inventor.

[00:15:46] Speaker 04:
But it is disclosed under this finding made based on Dr. Brin's testimony.

[00:15:51] Speaker 04:
You seem to put a different analysis, not whether something is disclosed, but whether the inventor understood the use, the possible use,

[00:16:01] Speaker 04:
of what has been disclosed.

[00:16:05] Speaker 04:
I just want to understand the issue.

[00:16:07] Speaker 04:
That doesn't say how... Sure.

[00:16:08] Speaker 01:
I mean, what is disclosed is what is actually disclosed in the 1999 application is the innards of communication device in which you can call a clinician.

[00:16:21] Speaker 01:
Like if we look at, for example,

[00:16:24] Speaker 01:
you know, figure four on 1581 or, you know.

[00:16:29] Speaker 04:
Well, but they accepted Dr. Bin's testimony that, and maybe I'm misunderstanding what his testimony was, that the application had the cellular and wireless circuitry that enabled it to be used as a cellular phone.

[00:16:46] Speaker 04:
What does that mean?

[00:16:47] Speaker 01:
Right, but it doesn't mean that it was actually ever used in that way or that it would.

[00:16:51] Speaker 04:
Was it capable of being used in that way?

[00:16:54] Speaker 04:
well is what was disclosed in the spec capable of being used as a cellular phone?

[00:17:03] Speaker 01:
I mean it depends on I guess what you are talking about as a cellular phone.

[00:17:07] Speaker 01:
Is it capable of being used as a general purpose phone where you could make calls to any person that you wanted freely?

[00:17:14] Speaker 01:
We don't know that.

[00:17:15] Speaker 02:
Just a cell phone, just to make a call.

[00:17:18] Speaker 01:
You know what we see, what they show in the

[00:17:23] Speaker 04:
Well, the board makes a finding that he credibly established that.

[00:17:33] Speaker 04:
So the monitoring apparatus of the 136 application could be used to make and receive cellular phone calls for other non-health monitoring purposes.

[00:17:46] Speaker 04:
So if the board found that, it must have concluded that the legal test

[00:17:52] Speaker 04:
is not whether you've disclosed something that could be used, but rather what, that you disclosed its actual use for that purpose?

[00:18:03] Speaker 04:
What more is needed?

[00:18:05] Speaker 04:
Somebody keeps talking about what the inventor knew.

[00:18:09] Speaker 04:
I don't know how we evaluate that.

[00:18:11] Speaker 01:
Right, so what was actually disclosed.

[00:18:15] Speaker 01:
So what was disclosed in the application, the only thing that the application disclosed

[00:18:20] Speaker 01:
was that you would have this very specific monitoring device and that it would have the ability to call a health monitoring center.

[00:18:30] Speaker 01:
It does not disclose the ability to make calls.

[00:18:34] Speaker 01:
It doesn't say that that's what you'd use it for.

[00:18:37] Speaker 01:
It only discloses that you would be using it for health monitoring functions.

[00:18:43] Speaker 04:
So is that leading us to an inherency argument where it would

[00:18:50] Speaker 04:
It could be used.

[00:18:51] Speaker 04:
You just didn't state that it would be used.

[00:18:53] Speaker 04:
I mean, it could be used for numerous things, maybe.

[00:18:57] Speaker 04:
And are you saying the standard then is it could be used to do the following six things, but since he only disclosed one use, then we're limited to that?

[00:19:09] Speaker 01:
I don't think we're going to an inherently argument, because the device that was disclosed, a specific hardware device

[00:19:18] Speaker 01:
for health monitoring is not inherently a general purpose cell phone.

[00:19:23] Speaker 01:
The claims require a multipurpose device which is dedicated to something other than health monitoring.

[00:19:31] Speaker 01:
So the health monitoring device of the 99 application would not inherently become a general purpose device.

[00:19:41] Speaker 04:
Well again, I'm just trying to understand your position.

[00:19:43] Speaker 04:
You're saying that

[00:19:45] Speaker 04:
If it could be used to receive cell phone calls for other things, but he didn't disclose that it was going to be used for that purpose, then the disclosure is not sufficient.

[00:19:58] Speaker 01:
Yes, I agree.

[00:19:58] Speaker 04:
I mean, that's the only way I can reconcile what the board is saying.

[00:20:02] Speaker 01:
Right.

[00:20:02] Speaker 01:
I agree, because they think the possession requirement is

[00:20:06] Speaker 01:
higher than that, because it says it's not something that would be obvious, or it's not something that you would need a person of ordinary skill and the art to understand.

[00:20:15] Speaker 01:
It's something that is disclosed in the specification that the inventor had possession.

[00:20:19] Speaker 02:
But reading this, wouldn't a proceder look at this and say, I can use that device to make a telephone call?

[00:20:26] Speaker 01:
I don't think the person of ordinary skill and the art would think that the inventor invented a device that could make a telephone call.

[00:20:35] Speaker 02:
That's not what I'm asking.

[00:20:36] Speaker 02:
I'm asking a procedure reading the specification.

[00:20:42] Speaker 01:
A person of ordinary skill and the art reading the specification, seeing that there might be some communication parts, might recognize that, yes, it's possible that a call could be made, but there's no disclosure of how.

[00:20:55] Speaker 02:
But then why isn't that possession?

[00:20:57] Speaker 01:
Because that's not what the inventor had thought of.

[00:21:00] Speaker 01:
That's not what the inventor actually invented.

[00:21:02] Speaker 02:
Isn't there what the board is saying on page 5?

[00:21:06] Speaker 02:
It's sound.

[00:21:07] Speaker 02:
His testimony is supported by sound scientific reasoning and factual evidence that the application had a cellular and wireless circuitry that enabled it to be used as a cellular telephone.

[00:21:20] Speaker 02:
I mean, that's evidence.

[00:21:21] Speaker 01:
That's... Right.

[00:21:26] Speaker 01:
So, but then the board later says on page seven,

[00:21:29] Speaker 01:
that the inquiry is not whether it could be used as a general purpose phone.

[00:21:34] Speaker 01:
The question is whether the inventor had possession of that concept.

[00:21:38] Speaker 02:
But if a placido looks at the invention and sees it there, what else is needed?

[00:21:44] Speaker 01:
I don't think that's what they would see.

[00:21:46] Speaker 01:
When you read the 99 application,

[00:21:49] Speaker 01:
you see that it's a dedicated health monitoring device.

[00:21:54] Speaker 01:
And I mean, if you look at the later 2004, that was a stark departure from what was disclosed in the 99 application.

[00:22:03] Speaker 01:
The 2004 application talks about the previous ones.

[00:22:09] Speaker 01:
Like if we look at APPX 30 on column 3, starting at lines 44, it talks about various methods

[00:22:18] Speaker 01:
and devices for monitoring the health of a person we're known that use special hardware.

[00:22:24] Speaker 01:
And here, now, we're harnessing a cell phone to put software on a cell phone, which is different than these specialized health monitors.

[00:22:35] Speaker 01:
And it specifically mentions the previous 99 application.

[00:22:40] Speaker 01:
on line 64 as one of the previous methods.

[00:22:45] Speaker 01:
So there is a stark departure here from what the 2004 application is disclosing and claiming as opposed to what was done in 99.

[00:22:59] Speaker 01:
Other further questions?

[00:23:00] Speaker 01:
No.

[00:23:00] Speaker 01:
Thank you.

[00:23:01] Speaker 01:
Thank you.

[00:23:13] Speaker 02:
So the disclosure only discusses using the device in terms of contacting a health provider, a clinic.

[00:23:24] Speaker 02:
And that's the only thing that the disclosure deals with.

[00:23:28] Speaker 00:
That's the only thing that's expressly spelled out in the disclosure, correct?

[00:23:31] Speaker 02:
Right.

[00:23:32] Speaker 02:
But the evidence in the record shows that the device can also be used to make a cell call.

[00:23:40] Speaker 00:
That's correct.

[00:23:41] Speaker 00:
That's what Dr. Bimbs testified to and what the board adopted.

[00:23:43] Speaker 00:
Correct.

[00:23:45] Speaker 02:
If we find in this case that capability or the function indicates possession, to what extent is that contrary to our existing case law?

[00:24:00] Speaker 00:
I don't think it is because it's unique to the claim construction and the limitation here because of the functional limitation.

[00:24:08] Speaker 00:
It's consistent with in Ray Reynolds and cases that deal with these kind of functional limitations.

[00:24:12] Speaker 00:
So it's not inconsistent with the case law.

[00:24:14] Speaker 00:
In fact, it's consistent with it to find that a functional claim limitation like this is inherently more.

[00:24:21] Speaker 00:
When a person understands that that functionality exists.

[00:24:24] Speaker 02:
Would that make any difference?

[00:24:26] Speaker 02:
Would it make a difference in your argument if we didn't have Dr. Bean's declaration?

[00:24:33] Speaker 00:
I think so because that's what the board relied on and adopted.

[00:24:36] Speaker 00:
So if that had not been a fact finding here, I think this case would be a bit different.

[00:24:40] Speaker 00:
That's correct.

[00:24:42] Speaker 00:
I haven't gone through that entire analysis, but certainly that was adopted by the board and is one of the reasons why the board's decision should be reversed under the correct standard.

[00:24:53] Speaker 00:
I'd like to just briefly point to, you had asked a question about where was Dr. Bims' testimony about what the inventors possessed.

[00:25:00] Speaker 00:
And my colleague pointed to me.

[00:25:00] Speaker 00:
There's actually two more explicit statements, one at a 1760 paragraph 56, where he states that the inventors would have, that a person wearing a skull would have understood that the inventors possessed the non-health monitoring function.

[00:25:13] Speaker 00:
And there's another one in his second declaration as well, which is at a 1949 paragraph 4, similar statement.

[00:25:25] Speaker 04:
Thank both parties.

[00:25:32] Speaker 04:
The case is submitted.

[00:25:33] Speaker 04:
That concludes our proceedings.