[00:00:44] Speaker 03:
The next case is Valmont Industries versus Lindsay Corporation, 2017, 1235 and 1288.

[00:00:51] Speaker 03:
Mr. Bonilla.

[00:00:52] Speaker 03:
Assume it's Bonilla.

[00:00:54] Speaker 03:
Yes, Your Honor.

[00:01:01] Speaker 01:
You're the first person to get it right today.

[00:01:03] Speaker 01:
Thank you.

[00:01:05] Speaker 01:
Good morning, Your Honors.

[00:01:06] Speaker 01:
May it please the Court.

[00:01:08] Speaker 01:
This Court should reverse the Board's decision with respect to claims 1 through 10

[00:01:13] Speaker 01:
12 through 15, 17, and 18 of the 357 patent for two reasons.

[00:01:20] Speaker 01:
First, the board improperly considered supplemental information submitted after the petition and coming to its decision with respect to these claims.

[00:01:30] Speaker 01:
And second, specifically with respect to claims 4, 5, and 17, the board's decision did not have sufficient information in the record to substantiate it.

[00:01:40] Speaker 01:
So as to the first point,

[00:01:42] Speaker 01:
the board improperly considered supplemental information that was provided by Lindsay outside of its petition.

[00:01:51] Speaker 01:
How is your argument consistent with Belden?

[00:01:53] Speaker 01:
So Belden helps us and also kind of frames the issue for us.

[00:01:58] Speaker 01:
So one thing from Belden was that we knew that if there is supplemental information that's provided, one of the proper vehicles for addressing that would be a motion to exclude, which is what Belmont filed in this case.

[00:02:11] Speaker 01:
but then was told at the final hearing that that was improper.

[00:02:15] Speaker 01:
Now, in Belden, there was the opportunity.

[00:02:17] Speaker 02:
That means that you can respond to the patent holder's arguments and produce new evidence to respond to that, which seems to be inconsistent with what you're arguing.

[00:02:30] Speaker 01:
And that would be the case, Your Honor, if we were talking about Valmont saying that the petition was incorrect in some instances or that it had failed to make certain

[00:02:41] Speaker 01:
points with respect to the information that was in the actual petition.

[00:02:44] Speaker 01:
What Valmont said here was, well, let's take this sheet of paper.

[00:02:47] Speaker 01:
And in the sheet of paper is your petition.

[00:02:49] Speaker 01:
It'd be one thing if Valmont had poked holes in it.

[00:02:52] Speaker 01:
Then Lindsay, of course, can come back and respond and say, no, this is what was in the petition.

[00:02:57] Speaker 01:
What was in the petition was sufficient for a prima facie case.

[00:03:00] Speaker 01:
We've established the unpatentability of the claims.

[00:03:03] Speaker 01:
That's not what happened here.

[00:03:04] Speaker 01:
What happened here was Lindsay presented a paper, a petition, that already had holes in it.

[00:03:09] Speaker 01:
And Valmont simply said,

[00:03:10] Speaker 01:
You're missing something here.

[00:03:11] Speaker 01:
You're missing a motivation to combine.

[00:03:13] Speaker 01:
You're missing the reasonable expectation of success that a person of ordinary skill in the art would have on combining these references.

[00:03:22] Speaker 01:
Then Lindsay comes back in its response and does not say, oh, no, it's not missing that.

[00:03:26] Speaker 01:
It's in the petition.

[00:03:27] Speaker 01:
Here is where it is.

[00:03:28] Speaker 01:
Instead, they say, here is some more information that fits what you say is missing.

[00:03:35] Speaker 01:
So for example, with respect to Scott and Piozzi,

[00:03:40] Speaker 01:
So those two references, the motivation to combine the two of them.

[00:03:44] Speaker 01:
All that Lindsay said in his petition is it would have been obvious to combine these.

[00:03:49] Speaker 01:
A person of ordinary skill in the art would have been motivated to combine these to get enhanced portability and mobility.

[00:03:58] Speaker 01:
They rely on Dr. Rosenberg's declaration for that statement.

[00:04:02] Speaker 01:
The only thing it says in Dr. Rosenberg's declaration, his initial declaration, is it would have been easy for a person of ordinary skill in the art

[00:04:10] Speaker 01:
to combine the complex system of Scott with the mobile terminal of Piozia to arrive at the claim one, for example, the 357 patent.

[00:04:19] Speaker 01:
There's nothing to support that statement in his initial declaration.

[00:04:23] Speaker 01:
And we can see that from the fact that after Valmont filed his patent owner response and said, you don't have enough information in here.

[00:04:32] Speaker 01:
You have not established a motivation to combine.

[00:04:36] Speaker 01:
Lindsay then served a supplemental declaration, which wasn't initially filed.

[00:04:40] Speaker 01:
but served a supplemental declaration that was almost an admission that there were some things missing from that original petition.

[00:04:48] Speaker 01:
What they could have done is said, no, here is how the petition establishes the motivation to combine.

[00:04:55] Speaker 01:
Here is how the petition establishes the information that we needed for a prima facie case.

[00:05:02] Speaker 01:
They didn't do that.

[00:05:03] Speaker 01:
Instead, they added supplemental information.

[00:05:05] Speaker 01:
They added Dr. Rosenberg's supplemental declaration

[00:05:09] Speaker 01:
And then his declaration with their reply, where he provides more evidence as to why a person of ordinary skill in the art would be motivated to combine these references.

[00:05:18] Speaker 01:
And it's important to remember that what the references are that we're talking about.

[00:05:22] Speaker 01:
In Scott, you have a complex system for irrigation of golf courses.

[00:05:28] Speaker 01:
And this system is using CAD software that requires certain processing capabilities, certain display capabilities to show that information.

[00:05:37] Speaker 01:
Piozia has a mobile terminal that, I mean, it goes just almost as far as to say it's a dumb terminal.

[00:05:42] Speaker 01:
All we've got is showing a display with certain pieces of information, but it requires a control system to be somewhere else, an intermediary that the mobile terminal can send signals to, excuse me, send commands to, and then the control system processes those commands and applies them to the irrigation system that we're talking about.

[00:06:04] Speaker 01:
And in fact, the mobile terminal would require, it couldn't even handle standard HTML.

[00:06:08] Speaker 01:
It would need to use the WAP protocol to reformulate standard HTML for that terminal to even be useful.

[00:06:15] Speaker 01:
So now, with those two references, Lindsay has to show in its petition a motivation to combine those two to practice the claimed invention of these particular claims.

[00:06:26] Speaker 01:
And Valmont's response to what Lindsay did was, you haven't done that.

[00:06:30] Speaker 01:
You haven't shown us these specific grounds

[00:06:34] Speaker 01:
for why a person of ordinary skill in the art would be motivated to combine these references.

[00:06:40] Speaker 01:
And then tried, under Beldon, served objections, filed a motion to exclude

[00:06:47] Speaker 01:
deposed Dr. Rosenberg and filed a motion for observation.

[00:06:50] Speaker 03:
Isn't the motivation there to improve the functioning of the device?

[00:06:55] Speaker 03:
If you've got something that works and then the possibility of a remote comes along, why isn't there sufficient motivation to put them together?

[00:07:06] Speaker 01:
That's not sufficient motivation to put them together, Your Honor, because we have to think about what is actually being taught by these two references.

[00:07:13] Speaker 01:
We don't just have any mobile device in Piozio.

[00:07:16] Speaker 01:
We don't just have

[00:07:17] Speaker 01:
any smartphone like what somebody may have in their pocket today.

[00:07:21] Speaker 01:
It's the mobile terminal that's in Piochia that requires this intermediary, this control system that's off away from the mobile terminal that would then allow this basically dumb terminal to send data to the control system to then control the irrigation equipment.

[00:07:38] Speaker 01:
That device would not, a person of ordinary skill in the art would, at the time of the invention,

[00:07:44] Speaker 01:
would not have been motivated to combine that device with this CAD software from Scott that has all of these particular GUIs, it has all of this information, this processing power, a person of ordinary skill in the art wouldn't be motivated to combine those two.

[00:07:57] Speaker 01:
And it's Lindsay's burden, we know this from Magnum World, that it's Lindsay's burden to establish that motivation to combine in its petition.

[00:08:07] Speaker 01:
And it didn't do so.

[00:08:08] Speaker 01:
So when Valmont says, hey, you have failed to show

[00:08:12] Speaker 01:
in your petition, a prima facie case of obviousness, the correct response from Lindsay would have been, no, we have, and here's why, instead of what they did, which was to provide this supplemental information without seeking leave from the court.

[00:08:26] Speaker 01:
Now, with respect to the second issue, specifically claims four, five, and 17, there isn't sufficient evidence in the record for the board to have made the decision that it made, because with respect to claims four and five, the petition does not include any information

[00:08:41] Speaker 01:
about a motion, motivation to combine Scott, Piotr, and APPS.

[00:08:45] Speaker 01:
And then with Claim 17, the only statement that's in the petition is Lindsay saying, well, Claim 17 is a method analog of Claim 1.

[00:08:54] Speaker 01:
Now that's not true.

[00:08:55] Speaker 01:
We saw that Lindsay and Dr. Rosenberg both conceded that Claim 17 is different from Claim 1, at least because Claim 17 requires directly controlling from whatever the handheld device is, the irrigation system.

[00:09:10] Speaker 01:
there can't be any kind of intermediary.

[00:09:12] Speaker 01:
So there isn't any explanation in the petition as to why a person of ordinary skill in the art at this time would have taken the mobile terminal from Piozzi, which teaches the need for a control system for an intermediary to directly control the kind of system that's in Scott.

[00:09:29] Speaker 01:
So using that kind of dumb terminal, taking that information and transmitting that information to the system and applying it in that way.

[00:09:37] Speaker 01:
The only statement that we have in the petition is,

[00:09:40] Speaker 01:
that 17 is a method analog of claim one.

[00:09:43] Speaker 01:
We've already established claim one and therefore claim 17 is invalid for the same reasons as claim one.

[00:09:48] Speaker 01:
That's not sufficient.

[00:09:49] Speaker 01:
There should have been, but wasn't, a specific articulation of the grounds for why 17 was invalid or would have been obvious in light of these two references and for a motivation to combine these two references to practice specifically claim 17.

[00:10:07] Speaker 01:
The same goes for claims four and claim five.

[00:10:10] Speaker 01:
there needs to have been specific articulation of the grounds for these two claims, and there wasn't.

[00:10:16] Speaker 01:
Lindsay obviously was constrained by the page limitations or word limitations in this petition and tried to use some incorporation by reference, but it never actually incorporates by reference any discussion about these three claims in particular.

[00:10:30] Speaker 01:
And so for these reasons, Your Honor, we ask this court to reverse the board's decision with respect to claims 1 through 10, 12 through 15,

[00:10:38] Speaker 01:
and claim 17 and 18.

[00:10:40] Speaker 02:
How about claim 11, where they held it was not unpatentable?

[00:10:44] Speaker 02:
Isn't it correct that a change in shape would be manifested by a change in the shading of a pattern?

[00:10:55] Speaker 02:
And doesn't the specification talk about change in shading suggesting that that's a change in shape?

[00:11:05] Speaker 01:
Well, the specification doesn't talk about the shading changing, the shape specifically.

[00:11:11] Speaker 02:
It says there are lots of places in there that it talks about a change in shading.

[00:11:18] Speaker 02:
It said different colors or patterns can be used to shade each wedge.

[00:11:23] Speaker 02:
It says the user can customize the screens to show the actual portion of the field that's under

[00:11:32] Speaker 02:
It's controlled.

[00:11:34] Speaker 02:
I mean, there's a lot of references in the specification to changing shape and by changing shape.

[00:11:43] Speaker 01:
And those references, Your Honor, go to not specifically the invention that's claimed in claim 11.

[00:11:49] Speaker 01:
Because claim 11, we're talking about shape showing the type of equipment, the pattern, and the status of the equipment.

[00:11:57] Speaker 01:
And there's two different ways that that could happen.

[00:11:59] Speaker 03:
What about whatever?

[00:12:01] Speaker 01:
Go ahead.

[00:12:01] Speaker 03:
What about the statement in the prosecution history page, appendix 178?

[00:12:06] Speaker 03:
Similarly, with regard to claim 11, the applicants specifically claim that the software changes the shape of the gooies in response to a change in the status of mitigation.

[00:12:17] Speaker 03:
178, appendix.

[00:12:27] Speaker 01:
So the changing of the shape of the GUI in response to a change of the status is the shape of the actual GUI, the border or the outline of the GUI itself.

[00:12:36] Speaker 01:
And we know that because there's two different kinds of GUIs that are referenced in the patent.

[00:12:41] Speaker 01:
Under columns three and four, you can see that there's textual GUI.

[00:12:45] Speaker 01:
So changing the words would be changing the outer borders of the shape.

[00:12:50] Speaker 01:
Or there's pictorial group GUIs.

[00:12:51] Speaker 01:
So it could be a circle with a line through it, or it could be

[00:12:56] Speaker 01:
a circle that has a wedge cut out of it, or a triangle, or something like that.

[00:13:00] Speaker 01:
So it's two different kinds.

[00:13:01] Speaker 01:
It's different kinds of shapes that would show the status, the pattern, and the type of equipment.

[00:13:08] Speaker 01:
But in all those instances, it has to be a GUI that does all three of those things for Claim 11.

[00:13:13] Speaker 01:
And the board stated that Lindsay had not shown sufficient evidence to establish the unpatentability of that claim.

[00:13:21] Speaker 01:
Your Honor, I'll reserve the rest of my time.

[00:13:23] Speaker 03:
You will do that, Mr. Brown.

[00:13:38] Speaker 00:
May it please the Court, this is a mill-run case where Petitioner brought forth substantial evidence and argument in its petition.

[00:13:47] Speaker 00:
Paten owner replied with evidence from an expert, and Petitioner submitted reply evidence rebutting the evidence submitted in Paten owner's response.

[00:13:59] Speaker 00:
And the Board found that all of that was proper under this Court's precedent.

[00:14:03] Speaker 00:
This just followed the ordinary pattern of trial and the rules that are provided

[00:14:08] Speaker 00:
for by the Patent Office.

[00:14:10] Speaker 00:
So there's nothing unusual in anything that occurred here.

[00:14:13] Speaker 00:
Turning to the first combination, the board found that Scott and Paezia together invalidated all but four of the claims.

[00:14:23] Speaker 00:
The board, if you read carefully the final written decision, based its opinions on the prima facie case entirely out of the evidence and argument that was submitted with the petition.

[00:14:35] Speaker 00:
Specifically, the board found that it was undeniable that Scott had all of the limitations of those claims except for a handheld device.

[00:14:45] Speaker 00:
Scott had a laptop that had GUI control, GUI interaction and control of irrigation equipment, and that the only thing that was missing was the handheld, and that PIOZIA supplied the handheld device.

[00:14:57] Speaker 00:
And the board found it was proper to combine PIOZIA, which is from the same field of endeavor,

[00:15:04] Speaker 00:
remotely controlling equipment in the field.

[00:15:08] Speaker 00:
With Scott, the board found in its final written decision that the motivation to combine could be found in the petition.

[00:15:15] Speaker 00:
It's specifically cited to page 31 in the petition for the motivation to combine.

[00:15:20] Speaker 00:
It's specifically cited to the original Rosenberg Declaration at paragraphs 56 to 61 to find that they were same field of endeavor, that the motivation to combine was

[00:15:32] Speaker 00:
that one of ordinary skill would have desired the increased portability and mobility found in Piozzi's handheld device with the other functionality found in Scott's laptop, but it would be more portable, and that would be the reason to make the improvement.

[00:15:48] Speaker 00:
All of that was supported by substantial evidence.

[00:15:52] Speaker 00:
The board found, based on the original petition, that there was a reasonable expectation to combine, based upon the Rosenberg Declaration and specifically citing the paragraphs 57 to 61,

[00:16:02] Speaker 00:
in the Rosenberg declaration.

[00:16:04] Speaker 00:
It also found not only did it credit Rosenberg's testimony that it would be easy for one of ordinary skill to utilize the monitor and control functions of Scott on the handheld device of Peotsia, but the board also referred to the specific teachings of Peotsia itself and also to the Ames reference and found that all of those teachings carried the prima facie case of obviousness.

[00:16:31] Speaker 00:
All of that is substantial evidence.

[00:16:33] Speaker 00:
The board followed this Court's precedents and did not engage in improper hindsight.

[00:16:38] Speaker 00:
The board did rely on the Rosenberg reply declaration, but only to address the arguments raised by their expert, Dr. Mercer, from patent owner's response.

[00:16:51] Speaker 00:
Specifically, Mercer had argued below that you wouldn't be able to port the CAD software found on Scott's laptop

[00:17:00] Speaker 00:
on to Piozzi's mobile phone.

[00:17:03] Speaker 00:
The board accepted the Rosenberg reply declaration to address that argument, and first noted that the standard was all wrong that was being argued.

[00:17:13] Speaker 00:
You do not have to prove that one can bodily modify or put together two references and graft one on top of the other.

[00:17:22] Speaker 00:
Each reference is good for what it teaches under In Re Mu Tet.

[00:17:26] Speaker 00:
Rosenberg pointed out in his reply declaration that he had not argued that you would try and port the CAD software from Scott onto the PIOZIA.

[00:17:35] Speaker 00:
He pointed out that he had argued that the monitor and control functions were able to be performed on PIOZIA, and that that was the thrust of his original declaration.

[00:17:47] Speaker 00:
And Rosenberg provided in his reply declaration showed how Dr. Mercer himself had introduced evidence

[00:17:56] Speaker 00:
that showed that the cell phones and PDAs of the day prior to the application date of the patent were fully capable of performing the monitor and control functions.

[00:18:08] Speaker 00:
So that evidence came in to rebut the position taken by patent owner that it isn't possible to bodily move Scott onto Piozia.

[00:18:17] Speaker 00:
And that's what was being responded to in the reply.

[00:18:19] Speaker 00:
It was proper reply evidence.

[00:18:21] Speaker 00:
The board heard

[00:18:23] Speaker 00:
patent owner on the issue of whether the reply was proper.

[00:18:27] Speaker 00:
Patent owner filed a motion to exclude, and the board determined that under its own regulations, specifically Section 4223B, that it was entitled to receive reply evidence so long as that evidence was true reply to what patent owner had submitted.

[00:18:45] Speaker 00:
And the board made a careful determination that that is exactly what was in the Rosenberg Declaration.

[00:18:50] Speaker 00:
Patent owner in their principal brief did not even address the board's finding that Rosenberg's reply declaration was proper under 4223b, and that should dispose of this issue entirely.

[00:19:04] Speaker 00:
Nor did patent owner attack the ability of the PTO to issue 4223b as a regulation under the Patent Act.

[00:19:11] Speaker 00:
And this Court has found in its Belden and Gemzein cases that it is entirely proper

[00:19:17] Speaker 00:
petitioner to come in with a reply declaration that has new evidence and has observed that it would not be unusual for the reply evidence to support a prima facie case but that does not answer the question of whether the reply evidence was necessary to the prima facie case and the board here found that the reply evidence was not necessary to the prima facie case because when you read the decision the prima facie case is made out entirely out of the petition in the original Rosenberg declaration.

[00:19:47] Speaker 00:
Although there's argument by patent owner about the supplemental Rosenberg declaration, that was never relied upon by the board.

[00:19:54] Speaker 00:
The board only notes in its final written decision that it has renumbered it as 1021, and then never again in the entire final written decision is Exhibit 1021 referred to.

[00:20:05] Speaker 00:
So the supplemental Rosenberg declaration is a non-issue in this case.

[00:20:10] Speaker 00:
Turning to whether patent owner had adequate notice to respond to

[00:20:17] Speaker 00:
the grounds asserted against Claims 4, 5, and 17.

[00:20:22] Speaker 03:
First, the Board heard... Let me interrupt you, counsel.

[00:20:26] Speaker 03:
I want to make sure you have time to deal with the cross appeal.

[00:20:29] Speaker 00:
Okay.

[00:20:29] Speaker 00:
I'll turn to the cross appeal then, Your Honor.

[00:20:36] Speaker 00:
Claim 11 depends from Claims 10 and 6 back to Claim 1.

[00:20:41] Speaker 00:
Claim 11 requires the following things that the Board found and construed.

[00:20:46] Speaker 00:
First, it requires GUIs that are shaped to identify particular types of irrigation equipment.

[00:20:52] Speaker 00:
It requires GUIs that are shaped to show an operating irrigation pattern.

[00:20:58] Speaker 00:
And in the key phrase, it requires a change in response to the shape, to a change in status of the irrigation equipment.

[00:21:07] Speaker 00:
So if the status of the irrigation equipment changes, there has to be a change in shape.

[00:21:13] Speaker 00:
Based upon what the board found to be the facts below,

[00:21:16] Speaker 00:
This court has to end its claim construction.

[00:21:19] Speaker 00:
This court has to reverse the board on the cross appeal based upon a matter of law.

[00:21:26] Speaker 00:
First, the board construed, and it's not contested, that claim 11 does not require the irrigation patterns to change.

[00:21:34] Speaker 00:
It just requires a change in the shape of a GUI to reflect a change in operating irrigation status.

[00:21:41] Speaker 00:
It's undisputed that Scott shows the following, and the board found this.

[00:21:46] Speaker 00:
Irrigation-equipped, irrigation-equipment-shaped GUIs, irrigation-patterned-shaped GUIs, and changing the shape of a GUI to reflect a change in status.

[00:21:59] Speaker 00:
So, Scott, we say expressly discloses the limitations found in Claim One, Claim Eleven, under the board's construction of Claim Eleven, based upon the findings by the board itself.

[00:22:12] Speaker 00:
Those facts put together

[00:22:14] Speaker 00:
coupled with the board's proper finding that Piozia and Scott were combinable, mean that this claim should have been found to be obvious.

[00:22:23] Speaker 00:
Secondly, during the original prosecution, patent owner argued that claim 11 distinguished over the APPS reference because APPS did not show changing shape.

[00:22:37] Speaker 00:
And in that process, they said, look in the spec of the 357 patent and pointed to

[00:22:44] Speaker 00:
First, an end-gun GUI, and then an end-gun GUI with a circle slash put over the top of it as showing a change in the shape that satisfied Claim 11.

[00:22:55] Speaker 00:
So that is not showing a change in an irrigation pattern GUI.

[00:22:59] Speaker 00:
That is showing a change in irrigation equipment GUI.

[00:23:03] Speaker 00:
And patent owner argued during the original prosecution that supported Claim 11.

[00:23:08] Speaker 00:
Well, if that type of disclosure supports Claim 11 in the specification,

[00:23:13] Speaker 00:
that same type of disclosure in the Scott reference, which unquestionably shows irrigation equipment-shaped GUI and the change in the irrigation equipment-shaped GUI with a change of status, if it was support in the spec, it has to be disclosure in the prior art.

[00:23:32] Speaker 00:
And this Court, on that basis alone, should reverse the Board's finding that Claim 11 is not obvious.

[00:23:41] Speaker 00:
Finally,

[00:23:42] Speaker 00:
If the Court were to find that claim that Scott and Peozzi together don't show claim 11, then we submit that the addition of APPS would.

[00:23:54] Speaker 00:
And APPS shows circle-shaped GUIs which are meant to represent center-pivot irrigation systems.

[00:24:01] Speaker 00:
Center-pivot irrigation systems, by their nature, have circles for their irrigation pattern.

[00:24:07] Speaker 00:
That's just the way they all operate.

[00:24:09] Speaker 00:
They're all circles.

[00:24:11] Speaker 00:
The APPS reference shows

[00:24:12] Speaker 00:
placing an X on a circle to indicate a change in status.

[00:24:19] Speaker 00:
All of that is admitted.

[00:24:21] Speaker 00:
The board then said that even though it's known to put an X on a circle to show a change in status, it was inventive, apparently.

[00:24:31] Speaker 02:
Kennedy But what APH shows also is a change in shading to show a change in the irrigation pattern.

[00:24:38] Speaker 02:
I thought your opposing counsel at the oral argument before the board admitted

[00:24:42] Speaker 02:
Change in shading was a change in shape.

[00:24:46] Speaker 00:
I believe that that's correct, Your Honor, and we pointed that out in our principal brief.

[00:24:52] Speaker 00:
Changing shade would change a shape, and APPS shows putting cross-hatches.

[00:25:00] Speaker 00:
And if I can look at the figures real quick.

[00:25:16] Speaker 02:
For example, it's on 1088, I think.

[00:25:31] Speaker 00:
That's correct, Your Honor.

[00:25:33] Speaker 00:
In the lower half of that figure, on wet.

[00:25:36] Speaker 00:
And then also, for instance, on dry shows shading only on one side of the semicircle of the whole circle.

[00:25:46] Speaker 00:
Given what Valmont admitted during oral argument before the PTAB, that also shows a change of shape in an irrigation pattern.

[00:25:58] Speaker 00:
So we would submit that the board was correct in most of its findings, but erred when it failed to find that claim 11 was obvious.

[00:26:09] Speaker 00:
Unless there are other questions, I'll reserve the rest of my time.

[00:26:14] Speaker 03:
Fine.

[00:26:15] Speaker 03:
Mr. Blanier?

[00:26:27] Speaker 01:
Your Honor, first, I want to clarify my response to Judge Deek's question from earlier about the shading versus changing the shape.

[00:26:36] Speaker 01:
The shading is what's claimed in Claim 12.

[00:26:38] Speaker 01:
So Claim 12 talks about a change in color to reflect status.

[00:26:43] Speaker 02:
And that's- Well, there's a distinction between color and shading, which the specification makes.

[00:26:50] Speaker 01:
Well, the Claim 11 is still talking about the shape and changing the lining.

[00:26:55] Speaker 02:
Aren't shape and shading

[00:26:58] Speaker 02:
uh, the same thing.

[00:26:59] Speaker 02:
Change in shape, change in shading.

[00:27:01] Speaker 02:
Doesn't a change in shading cause a change in shape?

[00:27:04] Speaker 01:
Well, no, Your Honor.

[00:27:05] Speaker 01:
The board stated that changing, merely changing the lines within the border of a GUI isn't sufficient to change its shape.

[00:27:11] Speaker 02:
Well, I know what they say, but I'm looking at the, at the concession that you made in the oral argument and looking at the specification here, which constantly talks about change in shading, suggesting that that's a change in shape, though.

[00:27:25] Speaker 02:
It doesn't use those words, right?

[00:27:27] Speaker 01:
Well, the discussion in the oral argument was there could be a circle with a line through it, which would not be just changing lines within the border, or a triangle with a checkerboard pattern over it, which would also potentially be outside the border of the triangle.

[00:27:42] Speaker 01:
And that's something that Lindsay conceded at page 11 of its reply brief, that merely changing or changing lines within the border of a GUI is not changing the shape of the GUI.

[00:27:54] Speaker 02:
It says this is on 2386.

[00:27:58] Speaker 02:
One thing to keep in mind is line 15.

[00:28:01] Speaker 02:
So when it says the shape or the status information of the GUI, the shape doesn't necessarily have to be that it's a circle or just it's a triangle.

[00:28:10] Speaker 02:
It could potentially be that it's a circle that's got lines through it or a triangle that has a checkerboard pattern across it, which seems to suggest or suggests to me that a change in shading is a change in shape.

[00:28:24] Speaker 01:
And it could have been said better, Your Honor, in front of the P tab.

[00:28:27] Speaker 01:
When I said a line through it, I meant actually a line through it as in extending past the border, or a checkerboard pattern across it.

[00:28:35] Speaker 01:
I meant across the actual triangle, such that it affects the outer border of the GUI.

[00:28:40] Speaker 01:
So just changing the shading within the lines, as the board stated, as Lindsay has conceded, is not sufficient to change the shape of the GUI itself, because it's the border, the outer border of each GUI they were most concerned with.

[00:28:55] Speaker 01:
And for these reasons, Your Honor, we ask this Court

[00:28:58] Speaker 01:
to reverse the court's decision with respect to all claims except claim 11.

[00:29:01] Speaker 02:
Why would you put the shading outside of the irrigation pattern?

[00:29:05] Speaker 02:
The circle is the irrigation area, right?

[00:29:09] Speaker 02:
So why would you put a shading outside that area when you're trying to define what's happening within the circle, which is the irrigation area?

[00:29:20] Speaker 01:
Your Honor, see, I'm out of time to answer the question.

[00:29:23] Speaker 01:
It depends on what the farmer or the individual running the system wants to know from this information.

[00:29:29] Speaker 01:
Because the pattern of the irrigation, it could be that you have a circle, for example, that might extend past the normal place where you might put that circle.

[00:29:38] Speaker 01:
For example, if you want to change the irrigation pattern because you want the pivot to end up next to a service road that's on one end of the circle that extends beyond that.

[00:29:49] Speaker 01:
If there's a particular section of the circle that

[00:29:52] Speaker 01:
You want a path that has such a more opportunity to irrigate that particular path.

[00:29:59] Speaker 01:
There's a lot of reasons why you might have a pattern that extends beyond the outer border of the shape, because it doesn't necessarily mean that just because it's a circle, that's the circular pattern.

[00:30:11] Speaker 01:
That's what we think of immediately.

[00:30:13] Speaker 01:
But it could be any shape that would show the type, the pattern, and the status.

[00:30:18] Speaker 01:
And that includes, for example, text GUIs that might just have them written.

[00:30:22] Speaker 01:
which is what's referenced in the patent.

[00:30:24] Speaker 03:
Thank you, counsel.

[00:30:27] Speaker 03:
Mr. Brown has a couple of minutes for a bottle in the process.

[00:30:38] Speaker 00:
Thank you, your honor.

[00:30:39] Speaker 00:
I think I really just want to address one issue, which is the board is according

[00:30:46] Speaker 00:
no creativity, no ordinary creativity to want an ordinary skill when they reach the conclusions they've reached.

[00:30:53] Speaker 00:
Scott unquestionably shows that you can have irrigation-shaped, equipment-shaped GUIs, that you can have irrigation-patterned-shaped GUIs, and that you can change the shape of a GUI to indicate to the user a change in status of the equipment.

[00:31:15] Speaker 00:
Those three things together to say that one of ordinary skill in the arc, reading Scott alone, wouldn't arrive at the ability to extend an X beyond a circle instead of keeping an X within a circle accords no creativity whatsoever to one of ordinary skill.

[00:31:34] Speaker 00:
It turns one of ordinary skill into an automaton who can only take exactly what's shown to him and do no more.

[00:31:42] Speaker 00:
And here the general teaching that you can change shape

[00:31:45] Speaker 00:
of a GUI to reflect a change in status is generally applicable to any one of the GUIs that's disclosed in SCOT.

[00:31:54] Speaker 00:
And that general applicability would mean that one of ordinary skill would understand if I have an irrigation pattern shaped GUI and I want to indicate some sort of change in status to the user, I could do it with that one too.

[00:32:07] Speaker 00:
And the board's unwillingness to record even that minimal ordinary creativity, one of ordinary skill, we think is legal error.

[00:32:16] Speaker 03:
Thank you, counsel.

[00:32:17] Speaker 03:
We'll take the case on your advisement.