[00:00:13] Speaker ?: Okay. [00:00:37] Speaker 02: The next argued case is number 172112, Vivint, Incorporated, against Alarm.com, Incorporated. [00:00:47] Speaker 02: Mr. Stern. [00:00:56] Speaker 03: Good morning, Your Honors. [00:00:58] Speaker 03: And may it please the Court, Robert Stern, for Patnone of Vivint. [00:01:02] Speaker 03: There is no substantial evidence to support the Board's finding [00:01:07] Speaker 03: that the challenge claims are anticipated by Osmond. [00:01:11] Speaker 03: Osmond is silent for the claim limitation displaying a map. [00:01:16] Speaker 03: Petitioner had their expert opine that a Peseta reading Osmond would interpret the silence as an explicit disclosure that the displaying a map limitation occurs at step S12 or later. [00:01:29] Speaker 03: But express anticipation cannot be met unless all claim limitations are explicitly disclosed [00:01:37] Speaker 03: In a single reference, silence is not disclosure. [00:01:41] Speaker 03: Silence does not allow for gap-filling using testimony from an expert or from speculation for the board. [00:01:48] Speaker 03: For this reason, the anticipation rejection of all of the challenge claims should be reversed. [00:01:55] Speaker 03: Moreover, claims 18 and its counterparts, claims 36 and 54, were also found anticipated by Osmond [00:02:05] Speaker 03: based on a claim construction first articulated by the board in the final written decision that was contrary to the claim construction used by both parties throughout the trial. [00:02:17] Speaker 03: This is a violation of Section 554 of the APA by the board because neither party had notice or opportunity to address this new claim construction. [00:02:28] Speaker 03: This APA violation is not harmless [00:02:31] Speaker 03: Because the new claim construction read out the processing operation from the requirement of modification in the claims, allowing the board to ignore the silence in Osmond that the modifications to the boundary limitation was not disclosed. [00:02:49] Speaker 03: But again, Osmond is silent about any modification of a boundary on a map displayed by a user. [00:02:58] Speaker 03: For this additional reason, claims 1836 and 54 are patentable, and the board's anticipation finding should be reversed. [00:03:10] Speaker 03: So, Your Honors, this is very similar to the NIDAC decision from this Court and others, where we have expressed anticipation, and the reference does not show [00:03:26] Speaker 03: does not disclose the missing element. [00:03:29] Speaker 03: The missing element here is displaying a map to a user. [00:03:33] Speaker 03: It's in all the claims, and that is never, ever disclosed in the Osmond patent. [00:03:42] Speaker 01: Why isn't 8A a map? [00:03:46] Speaker 01: Why is 8A and 8B a map? [00:03:48] Speaker 03: The board assumed, Your Honor, that it is a map under their definition, but it's never displayed to the user. [00:03:55] Speaker 03: So for purposes of argument, let's assume it isn't that. [00:03:58] Speaker 01: How can we see it if it's not displayed? [00:04:00] Speaker 03: Because it could be a spatial representation, as the patent explains, of how the boundary point and the reminder profile, as it's called, is set forth in terms of spatial relationship or temporal relationship. [00:04:21] Speaker 03: But it doesn't say ever in the patent that [00:04:25] Speaker 03: what is shown in 8A or 8B is ever displayed. [00:04:29] Speaker 03: And we don't know if any information, any information whatsoever in any form is displayed to the user. [00:04:36] Speaker 03: All we know is that the profile editor allows the user to define the reminder profile and to modify the reminder profile. [00:04:47] Speaker 01: This is an anticipation projection, not obviousness. [00:04:51] Speaker 03: Correct. [00:04:52] Speaker 03: And if we go with the board's decision, [00:04:55] Speaker 03: We have entered the slippery slope, we submit, Your Honor, of obviousness, because this is express anticipation. [00:05:03] Speaker 03: And under express anticipation, there is no disclosure. [00:05:08] Speaker 03: And if there is no disclosure, the board perhaps should have gone to obviousness, but they did not. [00:05:14] Speaker 03: So we submit that the express anticipation rejection should be reversed. [00:05:22] Speaker 02: Was it instituted only on anticipation? [00:05:24] Speaker 03: Yes, your honor, only on express anticipation. [00:05:30] Speaker 03: And I think it's illuminating if we look at exactly what the board said. [00:05:35] Speaker 04: So if you're right, then this seems to me raises a SAS problem because while it was instituted only on anticipation, obvious this was a separate alleged ground, which the board didn't institute on. [00:05:51] Speaker 04: and under our precedent following SAS, it seems like if we agree with you, then we vacate a remand, and they have to address obviousness. [00:06:01] Speaker 04: I don't see how you could possibly prevail on obviousness given figure 8A and 8B. [00:06:06] Speaker 04: So what's the point? [00:06:08] Speaker 03: Oh, the point, Your Honor, is that they shouldn't get a second bite at the apple, to use that colloquial phrase. [00:06:13] Speaker 04: Well, they do, because of SAS. [00:06:14] Speaker 04: The PTO messed up and didn't institute on the whole thing. [00:06:18] Speaker 04: like they were supposed to, unless they're prepared to stand up and waive their SAS argument, which I doubt after what I've just said. [00:06:25] Speaker 04: But so the PTO messed up. [00:06:29] Speaker 04: They didn't properly institute on their entire petition, as SAS requires them to do. [00:06:34] Speaker 04: So it's not about they shouldn't get a second bite. [00:06:36] Speaker 04: The PTO messed up. [00:06:37] Speaker 04: They never got their first bite, because the PTO didn't review their entire petition, which the Supreme Court says it was required to do. [00:06:45] Speaker 03: I have two answers for Your Honor, and thank you for asking about SAS. [00:06:49] Speaker 03: This proceeding should not be remanded under SAS because the petitioner forfeited the issue by not raising it until now. [00:06:57] Speaker 03: It's been 78 days since SAS. [00:06:59] Speaker 03: It was handed down. [00:07:01] Speaker 03: No notice or opportunity to address this issue occurred until today. [00:07:05] Speaker 03: The SAS issue is not jurisdictional, as stated by the court in its PGS decision. [00:07:12] Speaker 03: So it's been forfeited. [00:07:13] Speaker 03: And going to your other point, Judge Moore, if I may. [00:07:16] Speaker 04: So you think in the 78 days since SAS issued, they should have made a SAS motion at that point in time? [00:07:24] Speaker 03: Yes, Your Honor. [00:07:25] Speaker 03: I'm not ready to deal with the SAS motion other than I anticipated, if you will, that it would come up. [00:07:34] Speaker 03: and going to your other point about obviousness. [00:07:37] Speaker 03: We're not conceding that this invention is obvious. [00:07:39] Speaker 04: Well, I don't know what you mean by saying you're not ready to deal with it. [00:07:41] Speaker 04: There's really nothing to deal with. [00:07:42] Speaker 04: Our precedent is quite clear. [00:07:44] Speaker 04: I mean, the only argument you could make is that 78 days, which you've made, ought to be the bright line rule. [00:07:49] Speaker 04: And we say, if you haven't done it by now, nobody else gets to do it. [00:07:53] Speaker 04: I mean, that's the only argument you have, because the rest has been clearly resolved by our court and the two presidential decisions we've issued. [00:08:00] Speaker 03: Well, Your Honor, I think it would be opportunistic, if you will, [00:08:03] Speaker 03: and unfair to us if this was remanded, because the petitioner had ample opportunity to raise SAS. [00:08:10] Speaker 03: But since they won below on anticipation, they're going to wait until their argument. [00:08:15] Speaker 03: And if they sense that you are going to reverse on anticipation, of course they'll raise SAS as the basis for remand. [00:08:23] Speaker 03: But that's unfair to us. [00:08:25] Speaker 03: If they really wanted to do this, [00:08:29] Speaker 03: They should have done it by now so that we could have addressed this in terms of briefing before today's oral argument. [00:08:37] Speaker 01: You would say that they have a lot of sass. [00:08:40] Speaker 03: They have a lot of sass, Your Honor. [00:08:44] Speaker 03: And going back to Judge Moore's point, should they have done it sooner? [00:08:51] Speaker 03: Well, in Nike versus Adidas, they did exactly what I'm asking for, should have been done. [00:08:59] Speaker 03: And going to the obviousness point that Judge Moore raised, we're not conceding that they can meet the missing element requirement under obviousness, even if this case is remanded to the board, because frankly, they can't. [00:09:13] Speaker 03: Because the point is, the missing element is not in the primary reference. [00:09:19] Speaker 03: And we would argue that anything else that they would combine it with would not be permissible to supply the missing element. [00:09:26] Speaker 03: If displaying the information [00:09:29] Speaker 03: was what Osmond was about, they would have stated it. [00:09:31] Speaker 03: And to allow an expert under the rubric of construing a term or interpreting a specification to supply the missing element converts this case from express anticipation to obviousness. [00:09:47] Speaker 03: So Your Honors, I will reserve the rest of my time. [00:09:52] Speaker 02: Thank you. [00:09:59] Speaker 02: Good morning, Your Honor. [00:10:12] Speaker 00: May it please the Court. [00:10:13] Speaker 00: My name is Tina Shinkwerka on behalf of FLAalarm.com to take the issues in order that Viven raised with regard to express disclosure and the display of a map [00:10:28] Speaker 00: Osmond is not silent as to that point. [00:10:31] Speaker 00: Osmond is not ambiguous. [00:10:32] Speaker 00: There are express disclosures in Osmond that teach the display of a map. [00:10:37] Speaker 00: For instance, in paragraph 31, appendix 734, a profile editor is activated. [00:10:42] Speaker 00: The profile editor enables the user to edit his reminder profile later in paragraph 31. [00:10:49] Speaker 00: The editing can occur via a man-machine interface, such as a display and keyboard, [00:10:54] Speaker 00: or any other suitable input-output mechanism, such as a mouse or stylus with touchscreen display. [00:11:01] Speaker 00: In paragraph 33, there's a reference to figures 8A and B, Judge Lourde, you had talked about, that this is subsequently explained in greater detail with reference to figures 8A and 8B, which the board found were maps and which Vivint does not contest are maps. [00:11:16] Speaker 00: Osment includes references to a display, a man-machine interface, such as a display in paragraph 31, [00:11:23] Speaker 00: on Appendix 734, and a touch screen display also in that same paragraph in Appendix 734. [00:11:30] Speaker 01: In other words, the word display is actually used. [00:11:33] Speaker 00: The word display is actually used. [00:11:35] Speaker 00: Furthermore, in Paragraph 34, there are references to highly complex geometric boundaries, such as ellipsoid shapes, spline shapes, polygonal shapes, or any combination thereof. [00:11:46] Speaker 00: And those kinds of shapes [00:11:48] Speaker 00: as both experts testified, are not ones that can typically be drawn with equations, but rather are ones that would typically be done with a display. [00:11:56] Speaker 00: So for all of these reasons, including the fact that Dr. Ryan, which the board credited his testimony, was not inferring or adding a limitation, but rather he read the limitations of Osmond, and he said that what a faceta would understand reading Osmond is that there was a display of a map. [00:12:15] Speaker 00: There was no inference. [00:12:16] Speaker 00: There was no addition of limitations. [00:12:17] Speaker 00: This is not, Your Honors, like the NIDAC case, in which, if I recall correctly, it involved a stationary and a rotating rotor. [00:12:27] Speaker 00: And in that situation, there were signals that were used to invalidate the rotating rotor using stationary signals, using the reference currents IU, I sub V, and IW. [00:12:40] Speaker 00: But those were not found in the rotating reference. [00:12:42] Speaker 00: So those were supplied and added to [00:12:45] Speaker 00: the rotating reference in order to invalidate that patent. [00:12:49] Speaker 00: That's not the case here. [00:12:50] Speaker 00: In this case, Dr. Ryan didn't say something was missing. [00:12:53] Speaker 00: He didn't add a limitation. [00:12:55] Speaker 00: He said, reading the express disclosures in Osmond, a faceta would understand them to teach the display of a map. [00:13:02] Speaker 00: And that's not the same thing. [00:13:03] Speaker 00: What's actually happening here is not the addition of a limitation, but rather disagreement with Dr. Ryan's conclusion. [00:13:10] Speaker 00: And Dr. Ryan's conclusion is that taken together, Osmond displays a map. [00:13:13] Speaker 00: And that's what the board found. [00:13:15] Speaker 00: is a display of a map. [00:13:18] Speaker 00: With regard to an additional argument they make, which is that there is no display because the profile editor is active at step S12 before the information is necessary to generate figures 8A and 8B as available. [00:13:34] Speaker 00: Well, nothing in figure 1, located at appendix 724, states that a display does not occur. [00:13:40] Speaker 00: It could still occur. [00:13:41] Speaker 00: And frankly, looking at Figure 1 and Step S12 in isolation divorces it from the specification of Osmond, which, as I mentioned before, talks about editing. [00:13:52] Speaker 00: It talks about a stylus. [00:13:53] Speaker 00: It talks about a display. [00:13:54] Speaker 00: It talks about a keyboard. [00:13:56] Speaker 00: It talks about Figures 8A and B, which are not contested to be maps. [00:14:00] Speaker 00: And it talks about complex geometric shapes. [00:14:02] Speaker 00: So read altogether what Dr. Ryan said was a facet would understand those disclosures to mean the display of a map. [00:14:10] Speaker 00: Moreover, there is no temporal requirement for when a map is to be displayed. [00:14:14] Speaker 00: So whether or not the map was displayed before S-12 in Figure 1, taken together, the display of a map is clear from Osment. [00:14:25] Speaker 00: Second, on the issue of, on the SAS issue, just to address that briefly, Judge Moore, our position is that we did not need to raise it before and if [00:14:38] Speaker 00: If the board does not find that there is substantial evidence to support the board's finding, then the proper recourse is to remand the issue to the board to address the uninstituted grounds, including, for example, I believe- You haven't requested such a remand, is that right? [00:14:53] Speaker 00: That is correct. [00:14:54] Speaker 00: We had not, before this point, asked for that. [00:14:57] Speaker 00: That is correct, Your Honor. [00:14:59] Speaker 00: I do not believe, however, that there was a requirement that we needed to do so by now, but you are correct. [00:15:04] Speaker 00: In answer to your question, we had not yet requested it. [00:15:07] Speaker 00: with respect to the second issue, which is the... Did you say we haven't done so until now? [00:15:13] Speaker 04: Or do you say we haven't done so? [00:15:15] Speaker 04: And by the way, requesting remand doesn't mean we don't necessarily address this issue. [00:15:20] Speaker 04: And if it potentially resolves the case, there's no need for a remand. [00:15:24] Speaker 04: It's an in the alternative argument. [00:15:26] Speaker 04: So I'm trying to understand what you're saying. [00:15:27] Speaker 00: What I'm saying is if your honors do not find that there is substantial evidence that we would request that the issue be remanded to the PTAB [00:15:36] Speaker 00: to, in light of SAS, to consider the other grounds. [00:15:39] Speaker 01: Well, if there isn't substantial evidence, you lose. [00:15:44] Speaker 01: You don't get a second bite of the apple. [00:15:46] Speaker 00: However, on that ground, Your Honor, yes. [00:15:50] Speaker 00: However, because there are uninstituted grounds, our position would be that we're entitled to a remand for the board to consider alternate grounds. [00:15:57] Speaker 01: Well, you didn't ask earlier. [00:15:59] Speaker 01: You waived it. [00:16:02] Speaker 00: You're correct that we did not ask earlier. [00:16:05] Speaker 00: I did not read SAS as raising the argument at a certain point. [00:16:11] Speaker 00: But you are correct that we have not yet. [00:16:13] Speaker 00: We did not yet raise it. [00:16:15] Speaker 00: That is correct. [00:16:16] Speaker 01: What in the judicial process would seem to require parties to timely raise an issue if and when it arises? [00:16:27] Speaker 02: You can't just bring this on the other side without any sort of notice. [00:16:33] Speaker 02: To make a formal request now for a significant procedural change? [00:16:41] Speaker 00: Well, respectfully, we don't read SAS that way. [00:16:46] Speaker 00: That is a fair point. [00:16:46] Speaker 00: However, our position is that there is substantial evidence, that the record is clear, that there is no need to reach the SAS issue, because Osmond [00:16:54] Speaker 00: teaches the display of a map. [00:16:56] Speaker 00: And that's what the board found. [00:16:57] Speaker 00: And Dr. Ryan did not. [00:16:58] Speaker 00: It's not ambiguous. [00:16:59] Speaker 00: Dr. Ryan did not supply any limitations. [00:17:02] Speaker 00: Osmond is not contradictory. [00:17:03] Speaker 00: Taken together the disclosures in Osmond when a faceta reads them teach the display of a map. [00:17:09] Speaker 00: So our position is that there is substantial evidence to support the board's position. [00:17:16] Speaker 00: On the second issue, which is whether or not the board, in purportedly construing the term, [00:17:24] Speaker 00: receiving modifications violated the APA. [00:17:28] Speaker 00: Our position first is that there was no construction. [00:17:30] Speaker 00: The board simply said that they were proceeding under the plan of ordinary meaning. [00:17:33] Speaker 00: However, even if there were a construction that is not sufficient to create an APA violation, we need at least two other things. [00:17:42] Speaker 00: We needed a change in course, a midstream change in course, and that the parties were not on notice and did not have an opportunity to be heard. [00:17:50] Speaker 00: Neither is the case here. [00:17:51] Speaker 00: In the institution decision, the board did not construe the term, which means that the board was proceeding under the plain and ordinary meaning. [00:17:59] Speaker 00: In the final written decision, if you take their view that they were proceeding under the plain and ordinary meaning as a construction, that's exactly the same position. [00:18:08] Speaker 00: There was no midstream change. [00:18:10] Speaker 00: It's identical. [00:18:11] Speaker 00: Secondly, Vivint was on notice. [00:18:13] Speaker 00: A party who does not request claim construction is on notice that plain meaning of a term applies. [00:18:21] Speaker 00: They actually go on to say that they have consistently argued that modifications to the claim boundary were received and processed. [00:18:28] Speaker 00: And if that is their position, they took that position prior to the institution decision. [00:18:33] Speaker 00: The institution came out. [00:18:34] Speaker 00: They knew the term wasn't construed. [00:18:37] Speaker 00: They made whatever arguments they made. [00:18:39] Speaker 00: They were not surprised that the board hadn't construed it previously, so they cannot claim surprise. [00:18:44] Speaker 00: And the fact that the board potentially, according to their argument, [00:18:48] Speaker 00: construed the term for the first time in the final written decision is not impermissible. [00:18:54] Speaker 00: The issue is whether there's a midstream change and whether or not they had the opportunity to be heard. [00:18:58] Speaker 00: And on both those scores, the answers are not in their favor. [00:19:03] Speaker 00: But even if there was an APA violation, the error was harmless because the board's construction is the correct construction. [00:19:10] Speaker 00: What they said was that receiving modifications means receiving and it does not include processing. [00:19:15] Speaker 00: And that meets the broadest reasonable interpretation standard. [00:19:19] Speaker 00: The claim language does not require that receiving includes processing, reading the claims. [00:19:26] Speaker 00: Furthermore, the specification has multiple embodiments, which distinguish between receiving and processing. [00:19:33] Speaker 00: So if I can direct you to Appendix 62, column 5 of the 713 patent at lines 8 through 11, [00:19:41] Speaker 00: It says, for example, a map may be displayed with the current location indicated by a marker, and a drag event dragging the marker to an adjusted location may be received. [00:19:53] Speaker 00: Right after that, in another example, a boundary of a region within which the alert may trigger may be displayed, and modifications such as dragging the boundary may be received and processed. [00:20:04] Speaker 00: So the specification draws a distinction between receive and process, and that's exactly what the board found. [00:20:10] Speaker 00: Furthermore, there was no disavowal of claim scope, and limitations from the specification can't be imported to limit the claims. [00:20:17] Speaker 00: Here, the patent order specifically said, receiving modifications to the boundary, which the board interpreted to mean receiving. [00:20:23] Speaker 00: Now, in the reply, Vivint makes an argument that, respectfully, they didn't make before, which is that that interpretation is inconsistent with claims one and claim 18, where Vivint's position is that it would make no sense if receipt [00:20:40] Speaker 00: of receipt only met receipt and didn't require processing. [00:20:43] Speaker 00: But claim one simply says receiving a specification of a first location. [00:20:48] Speaker 00: That could simply mean receiving coordinates. [00:20:50] Speaker 00: That has nothing necessarily to do with processing. [00:20:52] Speaker 00: And similarly in claim 18, which is one issue, the claim says receiving a specification which includes both displaying a map and receiving modifications. [00:21:03] Speaker 00: So there's no requirement that processing occurs even under the claim language. [00:21:08] Speaker 00: So the correct construction, as the board found, assuming it's a construction, is receiving modifications without processing. [00:21:18] Speaker 00: But even if Vivian is correct, that the construction should include processing, then alarm.com should still prevail. [00:21:28] Speaker 00: Because Osmond's disclosures, there's substantial evidence of support also processing under Osmond. [00:21:37] Speaker 00: For instance, [00:21:38] Speaker 00: Osmond talks about enabling a user to edit his reminder profile via a man-machine interface, such as a display and keyboard, or any other suitable input-output mechanism, such as a mouse or stylus. [00:21:51] Speaker 00: And Dr. Rhine speaks to this issue, where he's answering questions from counsel. [00:21:56] Speaker 00: No, but that's one of the common usages of a mouse or a stylus with a touchscreen. [00:22:01] Speaker 00: I don't think they, they being Osmond, ever use the word drag. [00:22:05] Speaker 00: But I think that's what one of ordinary skill in the art would understand you would do with a suitable input-output mechanism, such as a mouse or stylus, or with a touchscreen as well. [00:22:15] Speaker 00: And so Dr. Ryan's testimony confirms that a facet or reading Osmond would understand not only the receiving of modifications, but the processing of modifications. [00:22:23] Speaker 00: So even if there was a construction, and even if there was an APA violation, the error here is harmless, even under Vivint's own construction. [00:22:31] Speaker 00: So under no scenario, [00:22:33] Speaker 00: could prevent prevail on claim 18 either. [00:22:36] Speaker 00: So for those reasons, we would respectfully request that the board's decision be affirmed. [00:22:42] Speaker 00: However, with regard to the claim 18 issue in particular, if the court does not find that there is substantial evidence in the event that the construction was incorrect and that the parties didn't have a chance to be heard, we would request that the issue be remanded to the board for consideration [00:23:02] Speaker 00: because neither party actually addressed the issue as set forth in our underlying papers. [00:23:08] Speaker 00: So the proper recourse is remand for the board to consider the issue. [00:23:12] Speaker 00: And on the point of waiver, Vivint makes the point in its papers that Alarm.com waived the argument of remand on the Claim 18 issue. [00:23:22] Speaker 00: We would respectfully suggest that either both parties waived the issue or neither party waived the issue because below, no party addressed the issue of claim construction. [00:23:31] Speaker 00: We don't think there's an error here, but if there is an error and you cannot find that there's substantial evidence in the record, then we would request again, as we did in our papers, that the issue be remanded to the board for consideration. [00:23:44] Speaker 00: But for all of those reasons, we respectfully request that the board's decision be affirmed with respect to claim 17 claims as well as the claim 18 claims. [00:23:53] Speaker 02: OK. [00:23:55] Speaker 02: Any questions? [00:23:56] Speaker 02: Any questions? [00:23:56] Speaker 02: Thank you. [00:24:06] Speaker 03: Your honors, my calculation is I have six minutes left, which is not normal for me to have on rebuttal. [00:24:13] Speaker 03: So let me address four points that I made. [00:24:16] Speaker 03: First of all, a display. [00:24:18] Speaker 03: That's the display over there, your honors. [00:24:21] Speaker 03: We don't know what's being displayed. [00:24:22] Speaker 03: It could be a blank screen. [00:24:24] Speaker 03: Just because you have a computer display doesn't mean you're displaying any information to the user, which is required by the claims. [00:24:32] Speaker 03: You could have a blank screen or you could be watching the World Cup. [00:24:36] Speaker 03: But there's nothing in Osmond that discloses a map, that uses the word map. [00:24:43] Speaker 03: There's nothing in Osmond that states that you display anything to the user when you use the profile editor. [00:24:51] Speaker 03: You could imagine, and we're speculating now, so we're now in obviousness land as my [00:24:56] Speaker 03: Collie kept taking us to throughout her oral argument, I submit. [00:25:01] Speaker 03: You could speculate all kinds of things by picking and choosing from the Osmond disclosure. [00:25:08] Speaker 03: But the reality is that the claims lay out a protected method. [00:25:14] Speaker 03: And that method is not laid out. [00:25:17] Speaker 03: It is not disclosed in Osmond. [00:25:20] Speaker 03: So we have no idea if any information is being provided [00:25:24] Speaker 03: to the user. [00:25:24] Speaker 03: The user may be able to input information, maybe in the form of equations, data. [00:25:31] Speaker 01: Who knows? [00:25:32] Speaker 01: What are we to make of paragraph 31 in Osmond that refers to a display, and then about eight lines later, with a little paragraph intervening, states this is essentially explained in greater detail with reference to figures A and B, 8A and B. [00:25:53] Speaker 01: That's not a display. [00:25:55] Speaker 01: 8A and B on the display of a map. [00:25:58] Speaker 03: Now, which paragraph are you in again, Your Honor? [00:26:00] Speaker 01: 31. [00:26:00] Speaker 01: 31. [00:26:01] Speaker 01: 33. [00:26:02] Speaker 03: Right. [00:26:03] Speaker 03: And it says, and I read, the profile editor enables a user to edit his reminder profile, or even multiple reminder profiles, via man-machine interface, such as a display and keyboard, typical computer, or any suitable input-output mechanism [00:26:22] Speaker 03: such as a mouse or stylus with a touch screen display or the like. [00:26:26] Speaker 03: Again, nothing, nothing. [00:26:29] Speaker 03: And Osmond talks about displaying information to the user in the form of a map. [00:26:36] Speaker 03: Nothing. [00:26:38] Speaker 03: It's completely silent. [00:26:39] Speaker 03: And what we're doing is filling the gap. [00:26:40] Speaker 03: This is a classic anticipation missing element case. [00:26:45] Speaker 03: And we've heard from counsel that they go through this over and over and over again, that Dr. Ryan says, [00:26:52] Speaker 03: Well, Dr. Ryan is a professional expert who's in many of these proceedings. [00:26:56] Speaker 03: And he essentially laid out an obviousness argument in the record. [00:27:00] Speaker 03: But that's not what's here. [00:27:01] Speaker 03: What is here is expressed anticipation. [00:27:05] Speaker 03: And therefore, we submit that the case should be reversed. [00:27:08] Speaker 04: You never answered Judge Laurie's question. [00:27:10] Speaker 04: He said that line 31, which includes the display and keyboard, combined with paragraph 33, [00:27:18] Speaker 04: which says this is subsequently explained in greater detail with reference to figure 8A and 8B and if I misunderstand his question I'm sure he'll correct me but I thought that I was understanding him to ask you why shouldn't we assume given that and the board's fact finding which we review for substantial evidence in the expert's testimony that when paragraph 33 says this is explained in subsequent [00:27:44] Speaker 04: explained in greater detail with reference to 8A and 8B that 8A and 8B are exactly what the profile editor is in fact displaying and what you can then use a keyboard or stylus or mouse to modify or a touchscreen display to modify. [00:27:59] Speaker 04: Your problem is the expert said that was the case and we reviewed this for substantial evidence because it's a fact finding. [00:28:08] Speaker 04: So I thought I understood Judge Laurie's question to involve [00:28:11] Speaker 04: Paragraph 33, which links figures 8A and 8B into the Paragraph 31 disclosure of the display keyboard, stylus, or other means of modification. [00:28:22] Speaker 03: Well, first of all, Your Honor, let me take it apart, if I may. [00:28:27] Speaker 03: Figures 8A and 8B are internal representations of the parameters of the reminder profile. [00:28:36] Speaker 04: Well, that's what you believe to be true, but that's not what their experts said. [00:28:39] Speaker 04: And this is a question of fact. [00:28:41] Speaker 04: And the board found in favor of their expert. [00:28:44] Speaker 03: We're talking about the disclosure in the patent. [00:28:48] Speaker 04: What in this patent says those are only internal representations not displayed? [00:28:54] Speaker 03: Well, the patent is silent on that point. [00:28:58] Speaker 04: But you just said they're only internal representations. [00:29:01] Speaker 04: Those were your words. [00:29:02] Speaker 03: Your Honor. [00:29:03] Speaker 04: What in this patent tells me that? [00:29:06] Speaker 03: Because the patent doesn't state that 8A and 8B are ever provided to the user. [00:29:11] Speaker 04: So then if it doesn't state it, then you also can't say they're only internal representations. [00:29:17] Speaker 04: You don't know. [00:29:18] Speaker 04: At best, you don't know whether they're displayed or not. [00:29:21] Speaker 03: We do not know if they're displayed or not, Your Honor. [00:29:25] Speaker 03: That's the whole point. [00:29:26] Speaker 04: But their experts said that they were. [00:29:27] Speaker 04: And they talk about, in paragraph 31, a display and keyboard for the profile, which is going to be activated and enabled to be edited by the user. [00:29:37] Speaker 04: And then it points to paragraph 33, which [00:29:41] Speaker 04: links in or sucks in figures 8a and 8b, I don't understand why there isn't substantial evidence for their expert's testimony and therefore the board's fact-finding that figure 8a and 8b are what is displayed and what paragraph 31 describes as the user being able to manipulate with these various mechanisms. [00:30:00] Speaker 03: The expert is saying that you would assume that this is being displayed. [00:30:05] Speaker 04: He never said assume. [00:30:06] Speaker 04: He said it is displayed. [00:30:07] Speaker 04: His testimony was strong and clear. [00:30:10] Speaker 04: It wasn't ambivalent or equivocal. [00:30:13] Speaker 03: Well, if that is the rule... Show me where he was equivocal. [00:30:16] Speaker 03: Well, no, I didn't say it was equivocal, Your Honor. [00:30:18] Speaker 03: If that is the rule that the expert is allowed to fill the gap through testimony like we have here, then anticipation law has just been eviscerated. [00:30:27] Speaker 04: He didn't fill the gap. [00:30:28] Speaker 04: He said this should be interpreted as these items being displayed, that that's what he understands to be disclosed from this reference, [00:30:36] Speaker 04: by the combinations of paragraph 31 and 33. [00:30:40] Speaker 03: Your honor, there's no textual hook for what he's saying. [00:30:43] Speaker 03: He's speculating. [00:30:45] Speaker 03: The whole point about this case is it's all based on speculation that a map is displayed to a user. [00:30:51] Speaker 03: It's never found. [00:30:52] Speaker 03: It's never disclosed in Osmond. [00:30:55] Speaker 03: If we can put an expert on to say, well, okay, I read this and I'm going to tell you what a person of ordinary skill in the art would say reading this, [00:31:05] Speaker 03: And I'm going to tell you that it's displayed to the user, even though it's never said that it's displayed to the user. [00:31:10] Speaker 03: I mean, the user hypothetically could input numerical values, could input equations, but none of that is ever displayed to the user in the form of a map as required by the claims. [00:31:22] Speaker 03: We're making, we're piecing all this together under express anticipation. [00:31:27] Speaker 03: If that's what was intended by the board, it should have been instituted under obviousness. [00:31:33] Speaker 03: And therefore, this case should be reversed. [00:31:37] Speaker 03: And they have forfeited their SAS argument, as we've said. [00:31:41] Speaker 03: And therefore, we submit that this case is over. [00:31:46] Speaker 03: It should be reversed. [00:31:48] Speaker 03: I mean, otherwise, I don't understand how anticipation law under the express anticipation case law works when you have a reference that is silent. [00:31:59] Speaker 03: Thank you, Your Honor. [00:32:03] Speaker 02: The case is taken under submission.