[00:00:22] Speaker 01: Next case is Mobileye Vision Technologies versus Iron Road, 2017, 1984. [00:00:29] Speaker 01: Mr. Giron? [00:00:30] Speaker 01: Thank you, Your Honor. [00:00:43] Speaker 04: May it please the Court? [00:00:45] Speaker 04: I'd like to focus on two issues that are central to the appeal. [00:00:47] Speaker 04: The first issue is claim construction. [00:00:50] Speaker 04: and the board's incorrect interpretation of Claim 6 improperly reads out the term uniformly. [00:00:56] Speaker 04: This is especially problematic because that term is the key to how the likelihood of collision determination of that claim is made. [00:01:02] Speaker 04: The second issue is the board's application of the Goodrich reference to Claim 6. [00:01:08] Speaker 04: Goodrich doesn't describe a uniformly test as the basis for collision prediction. [00:01:13] Speaker 04: In fact, the only reason Goodrich is being discussed is because the board read the term uniformly out of the claims. [00:01:20] Speaker 04: When that term is properly considered, the rejection of claim six based on Goodrich fails. [00:01:25] Speaker 04: And because there's no evidence in the record describing the uniformity test of claim six, the court should reverse the board's unpatentability decision relative to claim six rather than remand. [00:01:36] Speaker 04: Turning to claim construction. [00:01:38] Speaker 04: Claim six specifies a particular way of predicting a likelihood of collision between an object and a vehicle. [00:01:45] Speaker 04: The test claim six uses depends on a lateral displacement between the object and the vehicle [00:01:50] Speaker 04: and how this lateral displacement changes. [00:01:53] Speaker 04: For example, if the lateral displacement uniformly approaches zero, then the system will predict a collision. [00:01:59] Speaker 04: On the other hand, if the lateral displacement is deemed to not uniformly approach zero, then no collision will be predicted. [00:02:07] Speaker 04: The problem with the board's adopted construction, however, is that it reads the uniformly test out of the claim. [00:02:13] Speaker 04: The board stated that the phrase, quote, lateral displacement substantially uniformly approaches zero, merely means [00:02:20] Speaker 04: that the obstacle is closing in on the vehicle and they will intersect. [00:02:24] Speaker 04: Which is like saying the likelihood of collision prediction is made based on whether the object in the vehicle will collide. [00:02:31] Speaker 04: The board's construction is wrong because it lacks any reference to how the likelihood of collision determination is made. [00:02:38] Speaker 04: There's no reference in the construction to lateral displacement or to making the collision prediction dependent upon whether or not the lateral displacement uniformly approaches zero. [00:02:50] Speaker 04: Because the board's construction reads uniformly out of claim six, the court should at least vacate the board's unpatentability finding that was based on that erroneous construction. [00:02:59] Speaker 03: Did the parties ever ask for construction of the claim phrase, the lateral displacement substantially uniformly approaches zero? [00:03:08] Speaker 03: Yes, Your Honor. [00:03:09] Speaker 03: You asked for claim construction on that? [00:03:11] Speaker 04: The MOBI did not ask for claim construction. [00:03:13] Speaker 04: What MOBI urged was that all terms of the claim be given their meaning. [00:03:17] Speaker 04: However, Ion Road did. [00:03:19] Speaker 04: offer a proposal of construction to the board, and that in fact was the construction the board adopted. [00:03:26] Speaker 02: And that's still your preferred interpretation is just the ordinary meaning of the terms? [00:03:31] Speaker 04: That's correct, Your Honor, yes. [00:03:38] Speaker 02: What do we make of the response of Ms. [00:03:41] Speaker 02: Tully to Justice Bowmeiser? [00:03:44] Speaker 02: when he said, if I see a drunk driver swerving between the legs and it's approaching me, nothing about how they're measuring lateral displacement. [00:03:54] Speaker 02: And the system says there's a likelihood of a collision. [00:03:57] Speaker 02: Would your claim read on that? [00:03:58] Speaker 02: If it's in your lane, it will substantially uniformly approach you. [00:04:02] Speaker 02: That's what she says, without regard to lateral movement. [00:04:09] Speaker 04: Right, she was basically referring, I believe, to the example that's shown. [00:04:13] Speaker 02: Why isn't that consistent with the interpretation that you're challenging? [00:04:18] Speaker 02: Well, so the interpretation... Shouldn't it have a collision that it has uniformly substantially approached zero? [00:04:27] Speaker 04: Really, it's encapsulated in figures 2a and 2b. [00:04:31] Speaker 04: Figures 2a and 2b show an example where there are three cars approaching in three different lanes. [00:04:38] Speaker 04: Figure 2B plots the horizontal projection of the coordinates as it progresses over time. [00:04:44] Speaker 04: And as you can see from Figure 2B, the center lane, which is 21C, exhibits a lateral displacement that uniformly approaches zero. [00:04:54] Speaker 04: However, the lanes on either right or the left exhibit lateral displacements that don't uniformly approach zero. [00:05:00] Speaker 04: And as a result, the system can predict that the cars in the lanes on the right and left are not going to intersect with the host vehicle. [00:05:08] Speaker 04: in the council's response to the court was merely going along with that example and was saying, for example, if a drunk driver swerves into your lane, the system will predict if, for example, looking in terms of figure 2A, if the drunk driver is in the left lane, the system will see that it's following a path that is not of concern because its lateral displacement is not uniformly approaching zero at that time. [00:05:37] Speaker 04: However, if the drunk driver swerves into the lane and now is following the path of lane 21C, that would be one where it was judging the lateral displacement over time to be uniformly approaching zero, and then it would give an indication. [00:05:51] Speaker 04: It's also possible that the drunk driver could then swerve out of the lane and into another area, and it would then see no collision risk. [00:05:59] Speaker 02: And Gallagher, rather than using distance using velocity, [00:06:04] Speaker 04: I'm sorry? [00:06:04] Speaker 02: Gallagher, rather than measuring distances or relative distances the way the patent does, they measure velocity. [00:06:11] Speaker 02: Correct. [00:06:12] Speaker 02: They're saying if your velocity, if you take a look, and if the person is moving into your lane at a consistent, fixed velocity, and it's measuring that predicting to where you are, then they predict the collision. [00:06:26] Speaker 04: That's right. [00:06:27] Speaker 04: The reference is actually Goodrich. [00:06:29] Speaker 04: And what Goodrich does, [00:06:30] Speaker 04: is it finds a particular location of the vehicle and what the current velocity is at that time. [00:06:35] Speaker 04: And rather monitoring any change in lateral displacement over time, it just assumes that that current velocity will remain fixed over time. [00:06:44] Speaker 02: And it extrapolates it. [00:06:45] Speaker 02: So the lateral velocity, the speed at which the car is coming into your lane. [00:06:52] Speaker 02: So the whether it's. [00:06:54] Speaker 02: It speaks of lateral, right? [00:06:58] Speaker 04: I believe that... Goodrich. [00:07:13] Speaker 04: Yes, it says current lateral velocity. [00:07:15] Speaker 02: That's right. [00:07:16] Speaker 02: So Goodrich is doing what you're doing. [00:07:18] Speaker 02: It's doing it with velocity instead of measuring distances. [00:07:21] Speaker 02: Right. [00:07:22] Speaker 04: So it's as simple as that, right? [00:07:26] Speaker 02: The whole question is whether or not this one limitation in the claim is taught in the prior art anywhere. [00:07:33] Speaker 02: All the other limitations are taught in the prior art. [00:07:37] Speaker 04: The answer is no, it's not. [00:07:39] Speaker 04: And the reason why is because first, Goodrich doesn't do any test of lateral displacement as it changes over time. [00:07:46] Speaker 04: All it does is it locks in an assumption that current lateral velocity will remain the same. [00:07:50] Speaker 02: What's wrong with that? [00:07:51] Speaker 02: It's saying what it does is that you're coming at this speed and it's assuming that you're coming at that constant velocity. [00:07:58] Speaker 02: At that fixed velocity, you will substantially zero very zero. [00:08:03] Speaker 04: What's wrong with that is that it doesn't monitor over time, and so it has no way of knowing. [00:08:08] Speaker 04: And as an example, to look at figure 2a, let's just assume that all three cars have [00:08:14] Speaker 04: constant lateral velocity according to Goodrich. [00:08:18] Speaker 04: As they approach, all three cars having constant lateral velocity, still it's true that only one is the one that exhibits the lateral displacement uniformly approaching zero. [00:08:30] Speaker 04: The two in the other lanes won't, even with the constant lateral velocity. [00:08:35] Speaker 04: So Goodrich, if he's looking at the situation of figure 2a, might come up with completely different collision predictions than [00:08:43] Speaker 04: the system of the 8667 patent wood. [00:08:50] Speaker 04: It's also illustrative to look at Figure 2A and 2B with respect to the board's construction to see why and how the critical test of the Claim 6 has been left out. [00:09:05] Speaker 04: The board's construction was that [00:09:09] Speaker 04: Lattle displacement substantially uniformly approaches zero merely means that the obstacle is closing in on the vehicle and will intersect. [00:09:16] Speaker 04: So if we look, if we apply the claim six test to the situation of figure 2A, we're asking, I'm looking at the situation where three cars are approaching three different lanes and I'm trying to make a likelihood of collision determination based on whether [00:09:35] Speaker 04: obstacles closing in on the vehicle, so I see all three obstacles are closing in on the vehicle, and whether they will intersect. [00:09:43] Speaker 04: I have no way of knowing at that point how they will intersect, because what I'm lacking is the test of claim six, and the test of claim six tells me that how I know whether they're going to intersect is by monitoring the lateral displacement as it progresses over time, and if the changes are the same, if they're uniform, then they're uniformly approaching zero, and that's how I make the collision prediction. [00:10:04] Speaker 04: So the board's construction that it adopted eliminates that test and essentially guts claim six and the meaning that it provides. [00:10:16] Speaker 04: So reversal rather than remand is appropriate here because the court has all the relevant evidence before it and is in just as good of a position as the board would be to decide the patentability with respect to claim six. [00:10:29] Speaker 04: There's no depositions. [00:10:30] Speaker 04: There's no expert testimony. [00:10:31] Speaker 04: And in fact, the evidence, all the evidence on the record that the parties have relied upon and the PTO has relied upon are just a few lines in Goodrich. [00:10:41] Speaker 04: And what they say are just what you conveyed was that it focuses on current lateral velocity, assumes that remains constant, and then makes a prediction. [00:10:50] Speaker 04: And that doesn't have the test of claim six. [00:10:53] Speaker 02: So... Wouldn't the examiner say that one of our mayor's killings would know to recognize [00:10:58] Speaker 02: the difference between Goodrich, which is doing this job by velocity, and your patent, which is doing it by distance, and would easily be able to make the conversions in its own mind so that it would have no trouble at all seeing how one could read Goodrich and understand and apply it to this case. [00:11:20] Speaker 02: I didn't see the board relying on that argument. [00:11:23] Speaker 02: But it seemed to me that that argument would be pertinent on a remand. [00:11:29] Speaker 04: Yeah, I don't see that the board relied upon that argument. [00:11:32] Speaker 02: I know, but it's an examiner. [00:11:34] Speaker 02: It's obviously in the heart of the examiner's thinking. [00:11:38] Speaker 04: And actually, to respond to that. [00:11:40] Speaker 02: Because you have these two different sciences that are trying to deal with a similar type problem, right? [00:11:44] Speaker 04: Right. [00:11:45] Speaker 04: And we all are familiar with distance equals rate times time. [00:11:49] Speaker 04: So we all have an intrinsic understanding of velocity and distance. [00:11:52] Speaker 04: And that's why we feel like it. [00:11:54] Speaker 04: And I would urge that looking at figure 2a and 2b is actually counterintuitive. [00:11:59] Speaker 04: because as the lateral displacement changing over time isn't directly related to velocity in our normal, ordinary sense of how it's viewed. [00:12:07] Speaker 04: Rather, when you go and look at the images and the projections of the cars as they approach, you can imagine if cars are approaching in your lane, they continuously get closer and closer and closer to you until you intersect. [00:12:18] Speaker 04: On the other hand, the cars on the left and right lanes, for example, as they approach on their path, they will look like they're approaching you, but then at some point, they actually expand and move away from you. [00:12:28] Speaker 04: And that's why the lateral displacement isn't tied directly to current velocity. [00:12:34] Speaker 01: You are into your rebuttal time. [00:12:36] Speaker 01: You can continue or save it. [00:12:38] Speaker 04: One more point, Your Honor. [00:12:39] Speaker 04: So where the record lacks evidence to support an explanation other than the erroneous reasoning the board already provided, the court's recent decision in DSS Technology versus Apple at 885, Fed 3rd, 1367, suggests that reversal rather than remand would be appropriate. [00:12:58] Speaker 04: Thank you, Your Honor. [00:13:01] Speaker 01: Mr. Schoenhart, is it? [00:13:07] Speaker 01: Good morning. [00:13:08] Speaker 00: Thank you, Judge Laurie. [00:13:09] Speaker 00: May it please the Court, I represent ION Road today, and we respectfully request that this Court affirm the judgment of the Board with respect to Claim 6. [00:13:19] Speaker 00: There is something that Mr. Jerome pointed out to this Court on several occasions that I find troubling, and I would like to focus some time there. [00:13:27] Speaker 00: Mr. Jerome referred to what he called a uniformly test. [00:13:32] Speaker 00: He also referred to a test of lateral displacement over time and he referred to monitoring lateral displacement over time. [00:13:40] Speaker 00: If we look to the language of Claim 6 itself, Claim 6 says a system according to Claim 5 wherein the processor determines a likelihood of confusion responsive to whether or not the lateral displacement substantially uniformly approaches zero. [00:13:56] Speaker 00: There is no [00:13:57] Speaker 00: test of whether the lateral displacement substantially uniformly approaches zero in that claim. [00:14:02] Speaker 00: There's no statement that the processor determines whether lateral displacement substantially uniformly approaches zero. [00:14:09] Speaker 00: The determination in claim six, rather, is as to a likelihood of collision based on lateral displacement substantially uniformly approaching zero. [00:14:20] Speaker 00: The determination is likely to compute of collision, not a determination about the lateral displacement. [00:14:27] Speaker 00: This makes a big difference. [00:14:31] Speaker 03: But it does tell you, it says, in terms of likelihood of collision. [00:14:36] Speaker 03: So that's the determination that claim six is making. [00:14:41] Speaker 03: But it goes on and says responsive to whether or not. [00:14:44] Speaker 03: So it tells you how it makes that determination. [00:14:46] Speaker 03: So I'm not sure you can read out the remaining part of that claim. [00:14:52] Speaker 00: Well, Your Honor, I'm not looking to read out the remainder of the claim. [00:14:55] Speaker 00: I was first looking to highlight [00:14:57] Speaker 00: where the determination is made and what the determination is made regarding. [00:15:01] Speaker 00: That there is no express test of uniformity here or test of lateral displacement. [00:15:06] Speaker 00: Rather, the uniformity of lateral displacement is a factor taken into account in determining a likelihood of collision. [00:15:15] Speaker 00: If we look then into the specification of the 867 patent, the 867 patent teaches us to do the same thing that the Goodrich patent teaches us to do in very much the same way. [00:15:26] Speaker 00: If we look, for instance, to column five of the 867 patent, this is in the appendix of page 34, and I would direct your honors to lines 39 through 42. [00:15:37] Speaker 00: The patent reads, if there is no change in relative motion between the vehicle and the obstacle, the distance C to the obstacle will be closed in the time period T, that is the time to contact is T. Similarly, in column six of the patent, beginning at line seven, [00:15:56] Speaker 00: The patent reads, in addition, assuming that there is no change in motion as between the vehicle and the obstacle, comma, and the passage goes on to explain how ultimately it will reach a point of collision. [00:16:09] Speaker 00: The 867 patent, just like Goodrich, is making an assumption that your lateral translation is going to continue uniformly. [00:16:20] Speaker 00: And based on that assumption of uniformity, is determining if uniform [00:16:25] Speaker 00: Will we collide? [00:16:26] Speaker 00: So let's assume it is uniform. [00:16:28] Speaker 00: Then if that uniformity would put us in a point of collision, we say here's the time to contact. [00:16:35] Speaker 00: Yes, we will collide. [00:16:37] Speaker 00: That's consistent between the 867 pendant and Goodrich. [00:16:41] Speaker 00: I see no difference there, and there is no test of uniformly. [00:16:46] Speaker 00: The other major point I would like to address that Mr. Truong made was the notion of reversal rather than remand here. [00:16:53] Speaker 00: First, I don't see any reason why we should need to get to that point. [00:16:57] Speaker 00: But if this court were inclined to decide that there was error in the board's decision, reversal would not be appropriate. [00:17:04] Speaker 00: As Judge Clevenger pointed out, the board here focused on what Goodrich teaches. [00:17:11] Speaker 00: The board did not feel the need to go to the extent, as had the examiner, of explaining in further detail what would have been obvious. [00:17:19] Speaker 00: The ultimate conclusion reached by the board [00:17:22] Speaker 00: was one of obviousness based on a combination of Matthews, Lee, and Goodrich. [00:17:27] Speaker 00: So we are faced with an obviousness determination. [00:17:30] Speaker 00: But as to the particular limitation of claim six disclosed by Goodrich, the finding of the board was one of teaching. [00:17:38] Speaker 00: The board did not pass in the first instance before reaching this court on whether that would be obvious. [00:17:44] Speaker 02: I saw the case the same way in that it seemed to me that what was at stake was what Goodrich teaches. [00:17:52] Speaker 02: That's a fact question. [00:17:54] Speaker 02: So even if Goodrich might teach what your adversary says, if what you say Goodrich teaches is not unreasonable, you prevail on the standard of review. [00:18:08] Speaker 00: Yes, Your Honor. [00:18:09] Speaker 00: On the substantial evidence standard, we believe we prevail regardless. [00:18:13] Speaker 02: For me, it boils down if you're looking at it and say, well, if I'm trying to decide if the case turns on what Goodrich teaches, then so long as I decide that the board's interpretation of Goodrich, which was that assuming the velocity stays the same, the lateral displacement is substantially approaching zero, then the case is over because the standard of review protects the board. [00:18:38] Speaker 00: Correct, Your Honor. [00:18:40] Speaker 00: Judge Raina, earlier you raised the question of waiver. [00:18:45] Speaker 00: We take the view that claim construction was not specifically at issue or brought at issue by mobileye in the proceedings below, nor did anything transpire in the proceedings below that would properly otherwise preserve such an argument to mobileye at this time. [00:19:01] Speaker 02: Would you request support for a specific construction? [00:19:03] Speaker 00: In my view, what occurred below was not in fact a request for a construction of the term, but rather [00:19:09] Speaker 00: an explanation of how the language of Claim 6 reads in light of Goodrich. [00:19:14] Speaker 00: The language means was used, I don't dispute that, but it's in the context of a paragraph and a discussion of how to compare the claim language to the Goodrich reference. [00:19:27] Speaker 00: It's not a specialized time for claim construction. [00:19:33] Speaker 00: The one further note I would make on the claim construction point is that [00:19:37] Speaker 00: Mobileye has repeatedly asked for a clean and ordinary meaning construction without giving us any real guidance as to what that would be other than read the words. [00:19:49] Speaker 00: Clearly, I believe the board did read the words of the claim, appears to have recognized the words that were in the claim. [00:19:55] Speaker 00: And so simply a read the words construction would not get us any further than we already are. [00:20:00] Speaker 00: I'm happy to entertain any questions the panel may have. [00:20:04] Speaker 00: Otherwise, I would see the remainder of my time. [00:20:07] Speaker 01: Thank you, counsel. [00:20:08] Speaker 01: Mr. Giron has a little rebuttal time left. [00:20:11] Speaker 01: He needs it. [00:20:15] Speaker 04: Thank you, your honor. [00:20:21] Speaker 04: So one point that counsel brought up was that the 867 patent and Goodrich are both making assumptions of uniformity. [00:20:30] Speaker 04: And if that was the case, then there would be no need for the claim six determination of looking [00:20:35] Speaker 04: to be responsive to whether or not lateral displacement changes uniformly or not. [00:20:41] Speaker 04: The next point with respect to claim construction below, as counsel recognized, the word means was used. [00:20:52] Speaker 04: In fact, it was done so in the context of X means Y. So claim term means Y. And I know of no better way to convey a proposed construction [00:21:02] Speaker 04: It's one that Mobileye actually had a chance to respond to, and did, and identified the issues with the proposed construction, and it's the construction that the board adopted. [00:21:13] Speaker 04: So it's clear that the claim construction was at issue below, and that's the central focus of the appeal today. [00:21:24] Speaker 04: With respect to Mobileye's asking for a plain, ordinary meeting below, that's true. [00:21:32] Speaker 04: MOBI has been consistently asking for is for the word uniformly to be given weight. [00:21:37] Speaker 04: And that was raised to the examiner in the response to the ACP, the Second Office Action Response. [00:21:43] Speaker 04: It was effectively argued every step of the way. [00:21:47] Speaker 04: And what's really most important is that the uniformly language be given some meaning, other than what the board's adopted construction did. [00:22:01] Speaker 04: Thank you, Your Honor. [00:22:02] Speaker 01: Thank you.