[00:00:00] Speaker 02: 2723, Queen's University of Kingston versus Samsung Electronics. [00:00:06] Speaker 02: Mr. Blackburn. [00:00:09] Speaker 04: Thank you, Your Honor. [00:00:10] Speaker 04: May it please the court? [00:00:11] Speaker 04: My name is Sean Blackburn. [00:00:12] Speaker 04: I represent Queen's University of Kingston. [00:00:16] Speaker 04: Queen's asked the court to reverse the ruling of the patent trial on the pill board, ruling that certain claims of our patents were invalid in view of the Goldstein reference. [00:00:25] Speaker 04: We do so both on the merits and based on a procedural violation that occurred before the board [00:00:29] Speaker 04: which violated our due process rights under the Administrative Procedure Act. [00:00:34] Speaker 04: I'd like to focus my argument today on three points. [00:00:38] Speaker 01: Let me ask you, just as a housekeeping matter, I'm correct that you're only appealing two dependent claims that relate to cellular phones, 11 and 14, and not the respective independent claims one. [00:00:51] Speaker 01: That's correct, Your Honor. [00:00:52] Speaker 01: Thank you. [00:00:53] Speaker 04: And that's because of the enablement issue. [00:00:55] Speaker 04: Oh, you have to tell me why. [00:00:56] Speaker 04: I just wanted to know. [00:00:58] Speaker 04: But it feeds into our argument. [00:01:00] Speaker 04: First, the standard review. [00:01:01] Speaker 04: We believe it's de novo. [00:01:03] Speaker 04: Nubasive says it's de novo. [00:01:05] Speaker 04: What happened in Nubasive is exactly what happened here. [00:01:09] Speaker 04: New evidence was raised in reply. [00:01:12] Speaker 04: Nubasive objected, said, please either strike or allow us to file. [00:01:16] Speaker 02: That depends on how you look at it. [00:01:18] Speaker 02: I mean, there is some confusion here about the use of terminology of eye tracker and eye contact. [00:01:26] Speaker 02: But the concept that was described in the petition [00:01:30] Speaker 02: in relation to Goldstein and the way the board treated the argument was that Goldstein disclosed what is now used to describe eye contact, right? [00:01:47] Speaker 02: Which would be in terms of whether the user is looking at the screen or not looking at the screen. [00:01:54] Speaker 04: Right, whereas we believe eye contact is eye contact with the sensor, but to step back a minute from that, [00:02:00] Speaker 04: It's a de novo review, not simply because there's new evidence, but because we challenge it under the APA as opposed to the board's rules. [00:02:06] Speaker 04: This court's precedent says under the board's, if you're challenging the board's rules, kind of compliance with those, that's an abuse and discretion standard. [00:02:13] Speaker 04: We have not done that. [00:02:14] Speaker 04: We are challenging it under the APA. [00:02:16] Speaker 04: Now to get where you were going Judge Dite, I think it's more complicated than that. [00:02:21] Speaker 04: And it's, if you look at what Goldstein says, it says eye tracking sensor. [00:02:27] Speaker 04: I understand the term. [00:02:28] Speaker 04: But also if you look at what they argued in their brief, they didn't just say it's an eye tracking sensor and say, oh, well, it merely detects eye contact, or it does that. [00:02:36] Speaker 04: What they say is, and I want to get this exactly correct. [00:02:41] Speaker 01: Goldstein disclosed sensing eye contact by determining whether the focus of the user's pupils was on the screen's device, correct? [00:02:55] Speaker 04: They detected [00:02:56] Speaker 04: eye contact on the screen's device, not eye contact with the sensor. [00:03:00] Speaker 04: All eye tracking, 100% of all eye... It's basically the same thing, isn't it? [00:03:04] Speaker 04: It is. [00:03:05] Speaker 04: Absolutely not. [00:03:06] Speaker 04: And I will explain why. [00:03:08] Speaker 01: And I can do that using our... Well, first I'd like you to back up and answer my question. [00:03:12] Speaker 01: Sure. [00:03:12] Speaker 01: If you could help me. [00:03:13] Speaker 01: Does it disclose... Disclose sensing eye contact by determining whether the focus of the user's pupils was on the screen's device. [00:03:22] Speaker 04: Right. [00:03:22] Speaker 04: And so the question is, what are you sensing eye contact with? [00:03:26] Speaker 01: No, no, no. [00:03:26] Speaker 04: The answer is right. [00:03:29] Speaker 01: You did say right. [00:03:30] Speaker 01: I assume you meant correct. [00:03:33] Speaker 04: I actually don't. [00:03:34] Speaker 04: And because an eye contact sensor doesn't do that. [00:03:39] Speaker 04: And the thing is, all eye tracking sensors, even the ones that they long since disclaimed, would do that. [00:03:45] Speaker 04: The way eye tracking in its most complicated fashion happens is if you look at the screen, it does an XY coordinate. [00:03:53] Speaker 04: And then you track the eyes movement. [00:03:55] Speaker 04: And so I could take a mouse and scroll around the screen. [00:03:57] Speaker 04: And at every point along the way, is eye contact being sensed? [00:04:01] Speaker 04: Absolutely. [00:04:02] Speaker 04: So in that sense, yes. [00:04:04] Speaker 04: But that was certainly not enabled. [00:04:06] Speaker 01: Why didn't Queens dispute the sensing eye contact issue at its first chance in the patent owner response? [00:04:14] Speaker 04: In the patent owner response? [00:04:16] Speaker 04: The reason why we didn't raise it in the response is one, [00:04:24] Speaker 04: Typically when you're raising an issue in response to the patent owner response, you're attempting to show why they failed kind of on a legalistic basis or a very clean way, like you've not met these elements of the claims. [00:04:35] Speaker 04: If we were to raise an enablement issue in the patent owner response, what would the board do? [00:04:39] Speaker 04: I have never seen a denial of an institution based on an enablement argument. [00:04:45] Speaker 04: Because what would the board do? [00:04:46] Speaker 04: We would raise the argument Samsung wouldn't have any opportunity to respond. [00:04:51] Speaker 04: There wouldn't be [00:04:52] Speaker 04: kind of this fulsome development of enablement. [00:04:55] Speaker 04: So I've never seen an institution decision denied on those grounds. [00:04:58] Speaker 04: So what we chose to do in the patent owner response was to make other arguments that we believe they hadn't met their burden on prima facie case with respect to some obviousness to show that there were certain elements here that were just simply not met as opposed to enablement. [00:05:16] Speaker 04: And we also knew that we were gonna get different arguments in our response after institution [00:05:22] Speaker 04: which is, you know, that's just the way it's set up. [00:05:24] Speaker 04: So you don't want to make the exact same arguments in those two briefs, or you're probably going to be in trouble. [00:05:29] Speaker 02: Well, once you made the argument, they were entitled to respond to her, right? [00:05:32] Speaker 02: I absolutely agree. [00:05:33] Speaker 02: They were entitled to respond. [00:05:35] Speaker 02: And what the board ultimately found was that Goldstein described eye contact, that is, contact looking at the screen or not looking at the screen, and that that was enabled by various other references. [00:05:50] Speaker 02: For example, if you look [00:05:51] Speaker 02: At page 34 of the board's 665 decision, they talk about the smart Belondo prototype disclosing flow based on gaze detection, i.e. [00:06:07] Speaker 02: sensing the attention of a user specifically toward the device. [00:06:12] Speaker 02: I agree. [00:06:12] Speaker 04: That's what the board found. [00:06:13] Speaker 04: I also would submit that they did that on a record in which contained only references submitted by Samsung on the eye contact [00:06:21] Speaker 04: sensing issue. [00:06:24] Speaker 04: Right. [00:06:24] Speaker 04: We were not allowed to do anything other than argue against these references. [00:06:28] Speaker 04: We were not allowed to submit an expert declaration explaining why. [00:06:31] Speaker 02: I'm not understanding what's wrong here. [00:06:32] Speaker 02: I mean, Goldstein describes eye contact, whether people looking at the screen or not looking at the screen, and here the board finds that that's enabled. [00:06:41] Speaker 02: So what's the problem? [00:06:45] Speaker 04: We don't think it is enabled, and we should have been able to explain why it wasn't enabled. [00:06:49] Speaker 04: You don't think this Belondo enables it? [00:06:53] Speaker 04: I don't think it enables it. [00:06:54] Speaker 04: One, I don't think that the Belondo, one, the only reference that shows that it works is there's the thesis that we contend shows that it doesn't work. [00:07:03] Speaker 04: There's a undated paper, perhaps from years later, perhaps done by people who are super skilled in the art in a lab, I think they're somewhere over in Europe. [00:07:15] Speaker 04: I don't understand how that could enable somebody looking at the patent to do it. [00:07:19] Speaker 04: It would be one thing if it said, go to the smart Belinda prototype. [00:07:25] Speaker 04: It was published here. [00:07:26] Speaker 04: It was done this. [00:07:28] Speaker 04: I don't think that that's can suitably make an enablement argument based on something where there's not even a date. [00:07:37] Speaker 04: It's not even clear that it was available to one of ordinary skill in the art. [00:07:42] Speaker 04: I also am not convinced that it did enable it because, for one, the board dismisses this [00:07:48] Speaker 04: But the processing wasn't happening on that prototype. [00:07:51] Speaker 04: And that prototype was not a cellular phone. [00:07:55] Speaker 04: It was a PDA. [00:07:55] Speaker 02: Well, this seemed to be different arguments than the one you started out with, where you suggested that all they found enabled was eye tracking. [00:08:07] Speaker 02: But here they are specifically saying that Goldstein describes eye contact and that that's enabled by Londo. [00:08:15] Speaker 04: See, in the underlying arguments there is that they call that eye contact. [00:08:20] Speaker 04: We would consider that to actually be eye tracking and not enabled by Bilando for several reasons. [00:08:25] Speaker 04: And we specifically asked the board to be able to address this undated Goldstein reference, as well as this kind of hybrid device that they used to say would get you the cellular phone because the Bilando prototype doesn't get you there. [00:08:40] Speaker 04: And we were not allowed to do it. [00:08:42] Speaker 04: So I'm sitting here. [00:08:43] Speaker 04: I'm arguing with you, Judge Zeich, based on an incomplete record. [00:08:46] Speaker 04: I didn't go back to my expert, you know, I didn't spend $100,000 having him draft a expert declaration so that I would know coming up here to Theta Surgery on stuff that's out of the record. [00:08:57] Speaker 04: I don't have a record to argue this. [00:09:00] Speaker 04: I'm left arguing only what is in our patents. [00:09:03] Speaker 01: Well, let me ask you this. [00:09:05] Speaker 01: Despite 665's distinction between eye contact sensors and eye trackers, claim one doesn't limit how [00:09:15] Speaker 01: quote, the device determines where the user is looking. [00:09:21] Speaker 01: My reading of the asserted claims on appeal for purposes of whether Goldstein anticipates leads me to conclude that the distinction between eye contact sensors and eye trackers could be irrelevant to our analysis because both are covered by claim one and claim one isn't challenged on appeal. [00:09:40] Speaker 04: They both would be covered by claim one, but eye tracker, like true eye tracking, [00:09:45] Speaker 04: is not enabled on a cellular phone. [00:09:47] Speaker 04: In fact, Samsung totally disclaimed that before the board. [00:09:50] Speaker 04: They, in fact, said, no, no, we never even argued that it was eye tracking, because eye tracking requires more computational power than you would have had on a cellular phone of that generation. [00:09:59] Speaker 04: And that's the distinction. [00:10:00] Speaker 04: The distinction is not in the claim that the hardware sensor is the enablement issue. [00:10:06] Speaker 04: You couldn't do eye tracking in or on a cellular phone at that time, which is why, in reply, they switched to eye contact sensing, because it requires less power. [00:10:25] Speaker 04: And I see that I am now into my rebuttal time. [00:10:28] Speaker 04: If there are no further questions. [00:10:30] Speaker 01: Well, I'm troubled by the argument that Queens makes regarding what it says is the effective denial of Queens' motion to strike or in the alternative file a surreply with evidence. [00:10:46] Speaker 01: You were permitted to file a surreply. [00:10:48] Speaker 01: And quite outside the norm, you got the last bite at the Apple in argument. [00:10:54] Speaker 04: We were denied the ability to file a surreply with evidence. [00:11:02] Speaker 01: I know that. [00:11:03] Speaker 04: And that's the key. [00:11:04] Speaker 04: That's Nuvasive. [00:11:05] Speaker 04: Nuvasive says, so they were denied both the ability to file a surreply and evidence in Nuvasive. [00:11:12] Speaker 04: If you read Nuvasive, it only talks about surreply. [00:11:13] Speaker 04: I've gone back to the record. [00:11:14] Speaker 04: I've gone back to the briefing. [00:11:16] Speaker 04: Their argument was surreply and evidence. [00:11:20] Speaker 04: Uh, and if you look at judge Toronto's opinion in there, he says over and over again that they were denied that one of the keys that they were like these observations that he talks about, they do not substitute for the ability to supply argument and evidence, including expert declarations. [00:11:37] Speaker 04: And the reason for that is if I'm able to argue as an attorney against a 68 page declaration with 65 new pieces of evidence, I can argue against it all day, but that can be dismissed as simply attorney argumentation. [00:11:49] Speaker 04: And you're in the position where I've been in today that I'm simply arguing from our patent attempting to explain why we think this was wrong because we were not able to put any of this evidence in the record. [00:12:04] Speaker 02: Okay, do you want to say the rest of your name? [00:12:15] Speaker 03: Mr. Countryman. [00:12:17] Speaker 03: May it please the court, Craig Gunchman for Samsung. [00:12:20] Speaker 03: The board was correct to permit Queens from submitting additional expert testimony. [00:12:26] Speaker 03: Samsung's petition put Queens on notice of the relevant issues, and Queens could have submitted evidence on them with its patent owner response. [00:12:34] Speaker 03: But instead, Queens avoided those topics, probably because it was worried about undermining the enablement of its own patents, which use the same IBM eye-sensing technology [00:12:46] Speaker 03: to sense eye contact that Goldstein uses. [00:12:50] Speaker 03: Queen's experts also admitted other facts from their initial expert declarations that hurt Queen's case, and so having passed on that initial opportunity to submit evidence on those issues, the board correctly denied Queen's a second chance to do so. [00:13:05] Speaker 03: I'd like to spend most of my time showing that they did have notice of the relevant issues pending, of course, other questions from the court. [00:13:12] Speaker 03: But before I do that, I do think it's worth noting what the board did give Queens. [00:13:17] Speaker 03: As the court pointed out, Queens got us a reply where they could make whatever arguments they wanted. [00:13:22] Speaker 03: They were allowed to cross-examine our reply expert for seven hours. [00:13:26] Speaker 03: And during that time, they could have introduced whatever impeachment materials that they thought might support their case. [00:13:32] Speaker 03: They were permitted to file observations. [00:13:35] Speaker 03: And ultimately, they did get the last word on enablement at oral argument. [00:13:38] Speaker 03: So the question now is, in addition to all of those other things, [00:13:42] Speaker 03: did the board nevertheless err in denying them the ability to submit evidence, and we submit that it did not. [00:13:49] Speaker 03: The key issue here seems to be whether they were on notice, that it was our theory that Goldstein disclosed sensing eye contact, and our petition absolutely put them on notice. [00:14:00] Speaker 03: In the discussion of claim one in the petition, at appendix 193 and 194, we set out clearly that Goldstein disclosed... What about their argument that [00:14:10] Speaker 01: Samson changed its theory of anticipation from eye tracking sensors to sense attention. [00:14:18] Speaker 03: So we absolutely didn't do that. [00:14:20] Speaker 03: The petition was clear that our theory was sensing eye contact. [00:14:25] Speaker 03: And yes, these Goldstein sensors, we say they're eye tracking sensors, 20. [00:14:29] Speaker 03: But the way they worked to implement the feature that was alleged to anticipate the pause and resume feature, we said was sensing eye contact. [00:14:37] Speaker 03: And we made that clear first by saying that there's this two-state detection. [00:14:41] Speaker 03: Are you looking at the device or not looking at the device? [00:14:44] Speaker 03: And that, as their own patent says, is eye contact. [00:14:48] Speaker 03: Eye tracking, by contrast, is when you're looking at the movement of the eyes and the trajectory, or the eyes moving up and down. [00:14:54] Speaker 03: Whereas eye contact is just this instantaneous determination. [00:14:57] Speaker 03: Are you looking there or not? [00:14:59] Speaker 03: And so we certainly laid that out in the petition, and certainly [00:15:03] Speaker 03: given that that's the same way their own patent characterizes it, they were absolutely on notice. [00:15:08] Speaker 03: But then, as the court alluded to, so claim one includes both eye tracking and eye contact. [00:15:15] Speaker 03: And so we laid out this theory explaining the sensing eye contact. [00:15:21] Speaker 03: But then some of Queens' dependent claims actually do narrow down and require certain types of sensing. [00:15:27] Speaker 03: And so, for example, with respect to their claim four of the 665 patent, [00:15:32] Speaker 03: at Appendix 201 in the petition, we flatly said Goldstein discloses sensing eye contact. [00:15:38] Speaker 03: And we used to support that the same parts of Goldstein that we had cited in connection with Claim 1. [00:15:45] Speaker 03: And then even further, there are more dependent claims, Claims 5 and 6 of the 665 patent. [00:15:51] Speaker 03: And so Claim 4 actually is a long list. [00:15:53] Speaker 03: It says sensing a number of things, eye contact, eye movement, [00:15:58] Speaker 03: And incidentally, so eye movement is their patent equates it to eye tracking. [00:16:03] Speaker 03: And in connection with claim four, we didn't say Goldstein disclosed sensing eye movement in connection with claim four. [00:16:09] Speaker 03: And so that's another clue to them, right, that our theory is eye contact, not eye tracking. [00:16:15] Speaker 03: But then there's some additional dependent claims in their patent that are narrow specifically to just eye contact. [00:16:22] Speaker 03: And so we said Goldstein disclosed [00:16:24] Speaker 03: And so the onus would have been on them in the patent owner response to challenge that disclosure in Goldstein, and they didn't do it. [00:16:33] Speaker 03: And so now, and you know, there was a strategic reason for them to do it. [00:16:38] Speaker 03: I mean, whatever the reason, they were on notice, and so that's enough under the APA to comply with due process, but there was a strategic reason. [00:16:46] Speaker 00: You say they were on notice, but what about this enablement issue which they raised [00:16:52] Speaker 00: And in response in your reply, you introduced a new expert that was not an expert you'd relied on before. [00:16:57] Speaker 00: He filed either a 65 or 68 page declaration. [00:17:03] Speaker 00: I can't remember which. [00:17:04] Speaker 00: And then he also attached or you attached 65 new pieces of prior art. [00:17:13] Speaker 00: That's a lot. [00:17:14] Speaker 00: That's a lot of new evidence in a reply brief. [00:17:17] Speaker 00: A whole new declaration by a whole new expert, not using the expert you'd used before. [00:17:22] Speaker 00: And then 65 or 68 new pieces of prior art for the board to look at, they were given a cert applied, but they were given no opportunity to introduce any competing evidence. [00:17:35] Speaker 00: Should they have been? [00:17:36] Speaker 00: And if not, why not? [00:17:38] Speaker 03: So no, or I would say the board has discretion not to allow them to put in new evidence. [00:17:43] Speaker 03: I think the reason is because their experts could have addressed all those points [00:17:48] Speaker 03: with the patent owner response. [00:17:49] Speaker 00: How could they have addressed them with the patent owner response? [00:17:51] Speaker 00: You introduced 65 new pieces of prior art. [00:17:54] Speaker 00: How could they address those pieces of prior art or have an expert opine on them when they weren't part of the IPR until you introduced them in the reply? [00:18:03] Speaker 03: So a couple things. [00:18:03] Speaker 03: So there were a couple different issues that prior art went to. [00:18:06] Speaker 03: The first was kind of further discussion that Goldstein discloses sensing eye contact. [00:18:12] Speaker 03: And that was something they certainly could have addressed because we put that in the petition. [00:18:16] Speaker 03: And yes, we put in a new expert to kind of elaborate on that, but it was the same theory that was in the petition. [00:18:20] Speaker 03: And they, I think, made a strategic decision not to have their experts address it because they were worried about calling the enablement of their own patent into question. [00:18:30] Speaker 03: Most of the other evidence... When was the enablement issue first raised by them? [00:18:35] Speaker 03: In their patent owner response, after institution. [00:18:39] Speaker 02: So was your reply was the first opportunity you had to address the enablement question? [00:18:44] Speaker 02: Yes, that's correct. [00:18:46] Speaker 02: That's correct. [00:18:47] Speaker 03: And so to the rest of the evidence. [00:18:50] Speaker 03: So the other evidence. [00:18:51] Speaker 00: So if that's your first opportunity to address the question, then how could they have been expected prior to you having addressed the question? [00:18:59] Speaker 00: How could they have anticipated what you would say and put in all the evidence responsive to the 65 prior art references and the new expert declaration when you had never previously addressed the question and they had no idea what your response would be? [00:19:15] Speaker 03: So I think you have to look at their three specific complaints, which are 37 and 38 of the blue briefs. [00:19:20] Speaker 03: So the first thing is they say there was a shift in theory about whether Goldstein disclosed sensing eye contact. [00:19:25] Speaker 03: We didn't shift theories. [00:19:26] Speaker 03: As I explained, it was in the petition. [00:19:28] Speaker 03: We said explicitly, sensing eye contact. [00:19:30] Speaker 03: But the other stuff, these were issues that their experts actually injected in the proceeding about the state of the prior art, for example, and what the capabilities of cellular devices were at the time. [00:19:43] Speaker 03: And for that, we were putting in new evidence, but it was really to correct understatements by their experts. [00:19:49] Speaker 03: I mean, their experts took the position that cellular devices at the time, for example, I think they said the state-of-the-art device only had 206 megahertz in processing. [00:20:01] Speaker 03: And so we put in reply evidence to say, well, no, no, no. [00:20:03] Speaker 03: Actually, there's all these other public sources that say, [00:20:06] Speaker 03: For example, the Takit 83 device had 300 megahertz. [00:20:10] Speaker 03: There were some others that had 400 megahertz. [00:20:13] Speaker 03: And so these were the types of things that they could have anticipated because they injected the issue into the proceeding. [00:20:19] Speaker 03: And if they were going to do that, their experts had a responsibility to address all the prior art that was out there. [00:20:25] Speaker 00: Instead, there was a decision... All the prior art that was out there, but it wasn't part of the proceeding. [00:20:30] Speaker 00: Yes. [00:20:30] Speaker 00: Wait, you're telling me... Let me get this straight. [00:20:32] Speaker 00: You're telling me that their expert had an obligation [00:20:35] Speaker 00: to go through all prior art in existence and address all of it even though you hadn't relied on any of it yet? [00:20:45] Speaker 00: I think their expert... Doesn't that seem like that might be a slightly onerous burden to place on someone? [00:20:52] Speaker 03: Sure, so let me put a finer point on it. [00:20:55] Speaker 01: Are you actually saying that their expert had an obligation to be accurate? [00:20:59] Speaker 03: Exactly. [00:21:00] Speaker 03: Having made a representation about the state of the prior art and saying 206 megahertz [00:21:05] Speaker 03: is the best. [00:21:06] Speaker 03: They had an obligation to look and see, well, is there anything else out there that would contradict that? [00:21:10] Speaker 02: They raised the enablement question for the first time in their response, and they put in expert testimony about that, right? [00:21:16] Speaker 02: Correct. [00:21:17] Speaker 02: And you were responding to that, right? [00:21:18] Speaker 02: Correct. [00:21:18] Speaker 02: The question is whether they should get a reply to that since they had the opportunity to address the enablement question when they raised it for the first time in their response. [00:21:28] Speaker 02: Correct. [00:21:29] Speaker 02: Exactly. [00:21:30] Speaker 03: Um, on that point, I mean, it's common for the party here, we had the burden of proof and the common practices for the party with the burden of proof to get the last word. [00:21:40] Speaker 00: And the only- It's not what you argued in your brief. [00:21:42] Speaker 00: You argued they had the burden of production on the enablement question, right? [00:21:46] Speaker 03: That's true. [00:21:47] Speaker 03: They had the burden of production, but we ultimately had the burden of proof. [00:21:50] Speaker 00: So wait, so they had the burden of production on the enablement question. [00:21:54] Speaker 00: So they introduced it. [00:21:55] Speaker 00: You responded. [00:21:58] Speaker 00: did they get what someone would normally get in the form of a reply? [00:22:02] Speaker 00: Were they given all the same protection someone else with a reply would be given? [00:22:07] Speaker 03: I think so. [00:22:07] Speaker 00: Let me give you a hypothetical example. [00:22:10] Speaker 00: Suppose this is obviousness. [00:22:12] Speaker 00: You have the burden on obviousness if you are the person challenging the patent. [00:22:17] Speaker 00: You put out your prima facie case on obviousness. [00:22:20] Speaker 00: Now suppose the patentee comes along and introduces [00:22:25] Speaker 00: responsive evidence. [00:22:27] Speaker 00: In your reply, are you allowed to introduce new evidence? [00:22:30] Speaker 03: I think so, Your Honor. [00:22:32] Speaker 03: I think we could respond to their evidence. [00:22:35] Speaker 03: And if there were other, so for example, if the patentee put in evidence of commercial success, say, I think we could come in with specific evidence and say, actually, no, the product wasn't commercially successful. [00:22:46] Speaker 03: And if you said the sales were 200 million, actually they were 50 million. [00:22:50] Speaker 03: I think there's an ability to call them [00:22:53] Speaker 03: on some of the representations they make and reply. [00:22:56] Speaker 03: And I think they have an obligation to be accurate and wholesome in their submission so that if we call them on it, the board has discretion to say, well, they don't get a second bite at the apple. [00:23:07] Speaker 03: And that's what happened here. [00:23:08] Speaker 03: They made representations about the state of the prior art. [00:23:11] Speaker 00: I guess I think that you're misunderstanding because my point was [00:23:15] Speaker 00: The person who has the burden of going forward initially is them on this enablement issue. [00:23:21] Speaker 00: So they really stand like in the same shoes you would on obviousness, theoretically. [00:23:27] Speaker 00: So if on obviousness you present all of your arguments, but they present opposition, if you then in reply get a chance to respond with new evidence responsive to their opposition, then why shouldn't they get a chance in reply to respond with new evidence [00:23:43] Speaker 00: responsive to your opposition on enablement. [00:23:48] Speaker 00: It's like you want one standard for you, but a different standard for them when they have the burden on the issue. [00:23:54] Speaker 00: I mean, throughout your brief, you made it clear to me they have the burden on this issue. [00:23:57] Speaker 03: No, I mean, we have the burden of proof. [00:23:59] Speaker 00: On enablement, the burden of production, they have the burden of doing it. [00:24:02] Speaker 03: They have the burden of production, but we ultimately have the burden of proof. [00:24:05] Speaker 03: And so I think as in the obviousness context, the party with the burden of proof is the party that typically gets the last word. [00:24:13] Speaker 03: I think the board would have discretion to say looking at the particular facts that yes or no will give you expert testimony, but here I don't think the board would use that discretion because ultimately all we did in reply was just put in evidence that was responsive to them and that corrected some of the misstatements by their experts that had their experts done a more thorough job initially, they would have addressed all the relevant evidence about the state of the technology at the time [00:24:43] Speaker 03: and the state of this Baleando prototype. [00:24:47] Speaker 01: I take issue with your use of the word thorough. [00:24:50] Speaker 01: I think it should be accurate. [00:24:53] Speaker 03: I accept that. [00:24:54] Speaker 03: I agree with that. [00:24:56] Speaker 03: So that's our view on the procedural issue. [00:24:58] Speaker 02: Did they address the Baleando prototype in their response to which you were responding? [00:25:04] Speaker 02: I'm sorry. [00:25:04] Speaker 02: What was I touching? [00:25:06] Speaker 02: Did they address the Baleando prototype [00:25:10] Speaker 02: in their response. [00:25:11] Speaker 03: Yes. [00:25:12] Speaker 03: So they were the ones that raised it. [00:25:13] Speaker 03: They raised it and you were responding to it. [00:25:15] Speaker 03: We were responding to it and we said, so they cited one paper on it and we cited another paper on it that actually told a different story about it. [00:25:23] Speaker 03: And they didn't object to the province of that paper. [00:25:26] Speaker 03: You know, they now say, oh, it's unpublished. [00:25:28] Speaker 03: We don't know where it was from. [00:25:29] Speaker 03: They never objected to the authenticity below. [00:25:32] Speaker 03: And actually, if they were interested in that, they could have cross-examined our expert on it, who was the one who discovered the paper and actually [00:25:39] Speaker 03: If you Google the paper, it shows it's from the relevant time. [00:25:43] Speaker 03: It's publicly available. [00:25:44] Speaker 03: But yes, again, this was an issue they raised, and we were responding. [00:25:48] Speaker 03: So there was no notice problem, and ultimately the board had discretion, we believe, especially having given them the cert reply, having given them seven hours to cross-examine, having given them the last worded argument, had discretion to draw the line there and not permit them to put in additional evidence. [00:26:08] Speaker 01: When you say they didn't object to authenticity, they raised no foundational objections. [00:26:12] Speaker 03: That's right, Your Honor. [00:26:13] Speaker 03: In their motion to exclude, they had relevancy objections, but there was no foundation authenticity or anything like that. [00:26:22] Speaker 03: So in loss there are further questions on the procedure. [00:26:25] Speaker 03: I could speak briefly to the merits. [00:26:27] Speaker 03: And there we just think it's really a substantial evidence question on both issues. [00:26:32] Speaker 03: I mean, there's two issues, whether Goldstein actually discloses all the limitations and the enablement. [00:26:38] Speaker 03: On the disclosure of the limitations, figure one of Goldstein shows the sensor on the device, and our expert explained it's in a known positional relationship with the device. [00:26:47] Speaker 03: The board credited his testimony. [00:26:49] Speaker 03: Substantial evidence supports that finding. [00:26:51] Speaker 03: And then on the enablement, the board credited all our experts' explanation of the state of the art, the sensors that were available, the processing capabilities of cell phones that were available, the fact that Baleando was a success and not a failure. [00:27:06] Speaker 03: And so given to those underlying factual findings, the board correctly found Goldstein enabled. [00:27:11] Speaker 03: If there are no questions. [00:27:14] Speaker 03: Thank you. [00:27:32] Speaker 04: I'd like to make two quick points in reply. [00:27:35] Speaker 04: We've heard a lot about how we couldn't attack enablement because our patents wouldn't be enabled. [00:27:41] Speaker 04: False. [00:27:42] Speaker 04: Our patents actually disclose something Goldstein doesn't, something that's completely different. [00:27:47] Speaker 04: As you honors are aware, you detect a pupil and you detect a glint. [00:27:50] Speaker 04: This is this underlying Morimoto technique. [00:27:52] Speaker 04: That's not eye tracking. [00:27:53] Speaker 04: That's just the first step, detecting. [00:27:55] Speaker 04: When you're doing eye tracking or eye gaze detection, which is what Goldstein is, looking at a point on the screen, you then have to do a geometric computation [00:28:03] Speaker 04: to see exactly where the glint in the eyes is and then figure out based on the shape of that glint where I am looking, right? [00:28:10] Speaker 04: So if I'm looking over here, the glint looks different over there. [00:28:12] Speaker 04: It's a geometric computation, requires calibration, requires a fixed environment. [00:28:17] Speaker 04: What our inventor realized, his eureka moment was that if I'm looking at you Judge Dyke, you can see my pupils and you can see the glint in my eye is inside the pupils because it's a direct line. [00:28:30] Speaker 04: and you eliminate the need for all of that geometric computation. [00:28:33] Speaker 04: We disclose that in our patent. [00:28:34] Speaker 04: It's in Figure 2. [00:28:35] Speaker 04: It's also at Column 7 on Appendix 163 from Line 30 until about Line 35. [00:28:41] Speaker 04: For example, when the user is looking at the camera, the glint inside the pupil, the glint in the camera are all aligned on the axis, indicating that the user is looking at the camera and hence eye contact is detected. [00:28:57] Speaker 04: That's something very different. [00:28:58] Speaker 04: Goldstein does not disclose that. [00:29:00] Speaker 04: So we didn't rise and fall with Goldstein. [00:29:02] Speaker 04: Now to the notice issue. [00:29:04] Speaker 04: We heard a lot of argument about there were clues. [00:29:09] Speaker 04: I submit that more than clues are required as to whether or not they're looking at eye contact sensing. [00:29:13] Speaker 01: No, no, no. [00:29:14] Speaker 01: You're misstating your opposing counsel's argument. [00:29:16] Speaker 01: He said clues and he said also direct information. [00:29:20] Speaker 04: But that is absolutely incorrect. [00:29:23] Speaker 04: And I will explain why. [00:29:23] Speaker 04: That was claim four. [00:29:25] Speaker 04: It was not one of these claims. [00:29:27] Speaker 04: They said that it was an eye tracking sensor. [00:29:29] Speaker 04: They said that it was performing eye contact. [00:29:32] Speaker 04: There was performing eye tracking to sense the attention. [00:29:34] Speaker 04: And one of the things it did in doing that sensing attention was detecting was sensing eye contact as part of eye tracking. [00:29:42] Speaker 04: They just claimed all of it. [00:29:43] Speaker 04: That wasn't what the board relied on. [00:29:44] Speaker 04: That wasn't in the file. [00:29:48] Speaker 04: The other point is that because it's in claim six, that's not putting us on notice of this hardware sensor limitation. [00:29:53] Speaker 04: That's the Americam case that we cite. [00:29:55] Speaker 04: In that case, it was an obviousness case. [00:29:57] Speaker 04: They say Stiles renders all the claims obvious. [00:30:01] Speaker 04: Then they put together a chart with 20 claims. [00:30:04] Speaker 04: Three of them don't cite to Stiles. [00:30:07] Speaker 04: In the reply, they then rely on Stiles for those three. [00:30:10] Speaker 04: This court in the AmeriCamp case that came out, I think about eight or nine months ago, said, that's not enough. [00:30:16] Speaker 04: You've got to raise this specifically with these claims. [00:30:20] Speaker 04: They said this is an eye tracking sensor performing eye tracking. [00:30:24] Speaker 02: We were entitled to believe them. [00:30:26] Speaker 02: If you look at page 194 of the appendix and 202, they specifically describe in the petition monitoring attention toward the screen. [00:30:36] Speaker 04: I agree, but we believe that that is eye-tracking. [00:30:40] Speaker 04: This is about procedural argument. [00:30:41] Speaker 04: In our view... Attention toward the screen is eye-tracking? [00:30:46] Speaker 04: It's not simply attention toward the screen. [00:30:47] Speaker 04: It's the point on the screen. [00:30:49] Speaker 04: It's what Goldstein discloses. [00:30:52] Speaker 04: Because they say it's an eye-tracking sensor. [00:30:54] Speaker 02: Well, I mean, if you look at 194, in the middle of the pages, Goldstein disposes a hardware sensor in and on the device, sensing attention of the user specifically toward the device. [00:31:07] Speaker 02: That sounds like eye contact. [00:31:09] Speaker 02: And then 102, 202, it's even more, or 201, it's even more specific. [00:31:15] Speaker 04: And they said it was being done by an eye-tracking sensor that actually tracks the eyes. [00:31:21] Speaker 04: Looking beyond that, on the evidentiary points, there's no conceivable way that we could have responded to this evidence. [00:31:27] Speaker 04: In fact, even if we could have found the thousands of evidence, the thousand piece of evidence out there, the board also relied on Dr. S's self-described work with Dr. Myron Flickner. [00:31:39] Speaker 04: We could not possibly, and we relied heavily on that. [00:31:41] Speaker 04: We could not possibly have responded to that. [00:31:44] Speaker 04: It was fundamentally unfair for the board to have relied on that evidence and not give us any chance to rebut it. [00:31:50] Speaker 04: I see that I'm out of time, so if there are no further questions. [00:31:53] Speaker 04: Okay, thank you. [00:31:54] Speaker 04: Thank both counsels. [00:31:55] Speaker 04: The case is submitted.