[00:00:04] Speaker 01: We have five cases on the calendar this morning. [00:00:09] Speaker 01: Three patent cases, one from the Patent Office, two from the District Court, one of which is being submitted on the briefs and not be argued. [00:00:21] Speaker 01: Two cases from the Claims Court, both of which are being submitted only on the briefs. [00:00:28] Speaker 01: Our first case is Wavetronics versus Smart Microwave Centers, 2017-23-28. [00:00:37] Speaker 01: Mr. Lorimer. [00:00:39] Speaker 01: Thank you, Your Honor. [00:00:46] Speaker 03: May it please the Court, this case, like many cases before this Court, turns primarily on claim construction. [00:00:53] Speaker 03: The PTAB in this case was tasked with determining the broadest reasonable interpretation of the claim terms. [00:01:00] Speaker 03: The principal one in dispute here is the term traffic data. [00:01:04] Speaker 02: Mr. Larmor? [00:01:05] Speaker 03: Yes, sir. [00:01:05] Speaker 02: Before the PTAB, I'm at 3401 of the appendix. [00:01:22] Speaker 02: Regarding whether a single vehicle could be traffic data, you said if there was one car on the road and an ellipsis, you got data from that car from one of these sensors, ellipsis. [00:01:36] Speaker 02: Yeah, you could say that is traffic data. [00:01:39] Speaker 02: Are you walking away from that? [00:01:40] Speaker 02: Is that not a concession? [00:01:42] Speaker 03: Your Honor, if that is the only car on the road, it is all the cars on the road. [00:01:47] Speaker 03: And so our definition still fits. [00:01:51] Speaker 00: So is that the primary dispute? [00:01:54] Speaker 00: I mean, I get your argument that the vehicles would seem to, especially if you're under the broadest reasonable construction, would seem to contemplate all vehicles. [00:02:04] Speaker 00: But what is it about the term traffic? [00:02:09] Speaker 00: I understand that you put in some dictionary definitions. [00:02:12] Speaker 00: So what do you want us to say that traffic means? [00:02:17] Speaker 03: Well, that's a very good question, Your Honor. [00:02:19] Speaker 03: And I think, if I might, [00:02:21] Speaker 01: All questions from the bench are presumed to be very good questions. [00:02:24] Speaker 03: They are, Your Honor. [00:02:25] Speaker 03: I agree with that. [00:02:27] Speaker 03: If I might start a little further back than that to answer the question. [00:02:32] Speaker 03: The question here is whether the, for purposes of affirming or reversing, is whether the PTAB's construction was correct. [00:02:42] Speaker 03: If it's incorrect, then there has to be a remat. [00:02:45] Speaker 03: It's not whether ours was correct or not, it's whether theirs was incorrect. [00:02:49] Speaker 03: Now, going back to the question you actually asked, the answer is this. [00:02:53] Speaker 03: Traffic data is not any data. [00:02:56] Speaker 03: It's like saying that if you have a process that defines all integers, identifies all integers, and then generates prime numbers from those integers, and you delete prime and say that claim term means all integers or any integer, that's what the b-tab did. [00:03:17] Speaker 03: It said traffic data is the same as any data. [00:03:19] Speaker 00: Well, I understand that. [00:03:20] Speaker 00: And I see your definition both in your standard dictionary definition as well as the technical document that you put in that contemplates detecting the movement of vehicles. [00:03:37] Speaker 00: Yes. [00:03:38] Speaker 00: But yet in connection with your description of the field of the invention, [00:03:45] Speaker 00: It seems to talk about more than just movement. [00:03:49] Speaker 03: Well, if you look at the field of the invention, what the court just referred to, it talks about presence, location, speed, direction of traffic, volume, and occupancy of vehicular traffic. [00:03:59] Speaker 03: And then if you go to the relevant technology, which is just below that, it says that the field, that the relevant technology is for urban planning, public safety, traffic control, science and engineering of traffic planning and control, collection of traffic flow data. [00:04:14] Speaker 03: All of those are traffic engineering, which is the flow of vehicles on a particular section of roadway. [00:04:20] Speaker 03: That's what traffic is in this context. [00:04:23] Speaker 03: And if you look throughout the specification, all through column one and column two, and again in column 10, it talks about the traffic data or the subject matter of this patent being about traffic flow. [00:04:38] Speaker 03: And it has to be on all or substantially all of the vehicles or it's not traffic. [00:04:42] Speaker 03: It's not useful. [00:04:43] Speaker 03: Yes, sir. [00:04:44] Speaker 02: So, Mr. Lerner, if there's only one vehicle, and an hour later there's another vehicle, is that then traffic and data? [00:04:55] Speaker 03: If you get both of those? [00:04:56] Speaker 02: Yeah. [00:04:57] Speaker 03: Yeah, that is all the traffic on the road for a particular period of time. [00:05:00] Speaker 03: Yes. [00:05:02] Speaker 01: Counsel, you want a premise patentability on the distinction between one vehicle and several vehicles? [00:05:09] Speaker 01: The title [00:05:12] Speaker 01: The claims here are to a sensor, traffic sensor. [00:05:15] Speaker 01: That's the title of the patent. [00:05:17] Speaker 01: The BOLS patent is entitled Sensor for Intelligent Vehicle Highway Systems. [00:05:25] Speaker 01: It's basically the same field of invention. [00:05:30] Speaker 01: In BOLS in column eight, there's a reference to all vehicles and [00:05:40] Speaker 01: That's a pretty small distinction from the premise patentability on it. [00:05:45] Speaker 03: Your Honor, I think in this patent, as in all patents, what you have to do is look at the claim language and look at the art in view of that claim language. [00:05:53] Speaker 03: Here, traffic data means something different than what's in the art, and therefore, yes, as part of the entire universe of what's in the claim, we believe that they're patentable, for the reasons we've stated in the briefs and below. [00:06:06] Speaker 01: I'm puzzled by the fact that you've got seven [00:06:09] Speaker 01: all of whom presumably knew what the field was going on in the field, and none of these references were cited to the patent examiner. [00:06:20] Speaker 01: There is a duty of disclosure. [00:06:24] Speaker 01: Why were these not cited? [00:06:25] Speaker 01: They were certainly in the same field of the invention. [00:06:29] Speaker 01: They have almost the same titles. [00:06:32] Speaker 03: Well, Your Honor, first of all, I'm not sure that I agreed that they're in the same field of invention, but in order to [00:06:39] Speaker 01: Well, if you look at the classifications, they're all 340s and 342s. [00:06:45] Speaker 03: Well, the art that has been cited in the PTAB is all about vehicle-centric sensors. [00:06:51] Speaker 03: That is, it determines what's going on in the immediate vicinity of the host vehicle that has the sensor in it. [00:06:56] Speaker 03: This is a bigger picture. [00:06:57] Speaker 03: This is for traffic planning and engineering. [00:07:00] Speaker 03: And the short answer to your question, however, is that we didn't know about them. [00:07:04] Speaker 03: If we had known about them, then that would have been a different question, but we didn't. [00:07:10] Speaker 00: Surprising. [00:07:13] Speaker 00: Did you make a plain meaning argument to the board? [00:07:18] Speaker 03: We did, Your Honor. [00:07:18] Speaker 03: We used a definition from a dictionary that was very similar to the one that the petitioner relied upon. [00:07:26] Speaker 03: That definition was found in the Appendix 9. [00:07:39] Speaker 03: that it's quoted in the PTAP decision, all the vehicles driving along a certain road or in a certain area. [00:07:47] Speaker 03: We believe, however, that there is plenty of information in the specification, for instance, in column 10 that talks about what this is, and so we don't really need extrinsic evidence based on what's in the specification. [00:08:02] Speaker 03: In column 10, it refers to [00:08:05] Speaker 03: The digitized output signal 674, that's in figure eight of the patent. [00:08:11] Speaker 03: Figure eight of the patent says that you get all these signals from the roadway, and then you convert them back from analog to digital. [00:08:20] Speaker 03: And then at the bottom of figure eight, it shows that what comes out of 676, which is the detection algorithm, is traffic data. [00:08:31] Speaker 03: And then if you go to column 10 of the patent, [00:08:34] Speaker 03: It says that that output signal is the digitized, it performs spectral analysis on the digitized signal and generates the desired traffic statistics for use in traffic analysis, control, and forecasting. [00:08:54] Speaker 03: That is a crisp definition of what traffic data is. [00:08:57] Speaker 03: What we tried to do was to flesh that out a little bit [00:09:01] Speaker 03: by looking at it from the point of view of a person of ordinary skill in the art. [00:09:05] Speaker 03: He said that to make that useful, as it says here for traffic analysis, control, and forecasting, you have to have all or substantially all the vehicles, and you have to have it pertain to a particular location on the roadway. [00:09:19] Speaker 02: You make an argument for traffic engineering. [00:09:22] Speaker 02: The patent never says traffic engineering. [00:09:24] Speaker 03: Actually, forgive me. [00:09:27] Speaker 02: At one point in T-Tom 1 and around line 24, it uses the word engineering. [00:09:33] Speaker 02: But it never says traffic engineering. [00:09:36] Speaker 02: And how does a single use of engineering support the assertion that traffic data must be understood and construed in terms of traffic engineering? [00:09:49] Speaker 03: Well, Your Honor, if you look, for example, at the Abbott case that we cite in our brief, in that case, [00:09:56] Speaker 03: It said the limitation in question was an electrical chemical sensor. [00:10:07] Speaker 03: And the question was whether it had to be wired or wireless. [00:10:11] Speaker 03: And it didn't say wireless in the claim. [00:10:14] Speaker 03: But throughout the specification, it talked about that application. [00:10:18] Speaker 03: Everything in this application that we've referred to talks about traffic engineering. [00:10:23] Speaker 03: It doesn't use those two words side by side. [00:10:27] Speaker 03: I agree. [00:10:28] Speaker 02: It says the science and engineering of traffic planning and control. [00:10:33] Speaker 02: Right. [00:10:34] Speaker 02: Okay. [00:10:35] Speaker 02: Now, you know, Judge Lee, I thought raised a very good point, talking about the stay at home mom or dad who cares deeply about one vehicle, not running over their kid, playing in the street. [00:10:54] Speaker 02: Isn't that traffic safety and control? [00:10:57] Speaker 02: when you see a sign that says children at play because the traffic engineers decided that they'd put it there? [00:11:04] Speaker 03: Well, I don't think that's traffic control in the sense of this pattern because this is talking about a sensor generating traffic data for traffic control, urban planning, forecasting. [00:11:16] Speaker 00: In a smart city. [00:11:17] Speaker 00: In a smart city. [00:11:18] Speaker 00: And that same section refers to the collection of traffic flow data. [00:11:22] Speaker 02: Correct. [00:11:23] Speaker 02: It does. [00:11:24] Speaker 02: And in a smart city, [00:11:27] Speaker 02: You would know everything that's happening on every street, right? [00:11:31] Speaker 02: And it would be used for exactly that purpose, right? [00:11:35] Speaker 03: Well, if you had all the information, if you had the information about the flow of all the vehicles on a particular section, yeah, it would. [00:11:47] Speaker 00: Your friend on the other side is going to argue that all this is interesting, but that even if we agree with you that the plain meaning of traffic is [00:11:56] Speaker 00: broader than or different than what the board adopted, that we should still find the patent to be obvious. [00:12:06] Speaker 00: What's your response to that? [00:12:07] Speaker 03: Your Honor, I see that I'm into my rebuttal time. [00:12:09] Speaker 01: You can answer the question. [00:12:11] Speaker 03: Thank you. [00:12:13] Speaker 03: I think the answer to that question, Your Honor, is that under the Chenery Doctrine, this court cannot affirm an administrative body [00:12:24] Speaker 03: on grounds not adopted by the administrative body, unless it is a pure question of law. [00:12:30] Speaker 03: And here, the question of anticipation is clearly a question of fact, and the question of obviousness relies on underlying issues of fact. [00:12:38] Speaker 03: I don't think it would be appropriate to affirm on grounds not adopted by the PTAP. [00:12:47] Speaker 01: We will save the rest of your rebuttal time. [00:12:50] Speaker 03: Thank you. [00:12:52] Speaker 01: Mr. Calderon. [00:12:54] Speaker 04: morning. [00:13:07] Speaker 04: May it please the court. [00:13:09] Speaker 04: Today we're here to discuss traffic data and we believe SMS that is [00:13:13] Speaker 04: believes that traffic data has been properly interpreted by the board and by its broadest reasonable interpretation, looking at both the intrinsic evidence as well as the extrinsic evidence at hand. [00:13:24] Speaker 00: My problem is that you seem to read the word traffic right out of the construction. [00:13:31] Speaker 00: I mean, your friend on the other side cited a common dictionary. [00:13:36] Speaker 00: I went and looked at every single dictionary. [00:13:39] Speaker 00: Every single dictionary out there defines traffic as [00:13:43] Speaker 00: the flow or movement of vehicles along a roadway. [00:13:48] Speaker 00: How is any data, which you argue could be even from a stationary vehicle that happens to be somewhere on the road, how is that consistent with the concept of traffic, of traffic flow, of traffic movement? [00:14:05] Speaker 04: I certainly don't want to conflate any facts here. [00:14:08] Speaker 04: The board has interpreted [00:14:10] Speaker 04: the traffic data to be any data generated or produced from a signal reflected off vehicles on a roadway. [00:14:18] Speaker 00: Right, so whether they're moving or not, right? [00:14:21] Speaker 04: Yes. [00:14:22] Speaker 00: And yet that seems to be inconsistent with every single common dictionary definition of traffic. [00:14:29] Speaker 04: There are vehicles. [00:14:30] Speaker 04: Unless flow means lack of flow. [00:14:33] Speaker 04: Flow means vehicles, well, [00:14:35] Speaker 04: Float, first of all, is something that the board didn't interpret. [00:14:39] Speaker 02: That is to say that the traffic engineers might be interested when all the traffic on a freeway is stopped. [00:14:44] Speaker 04: They very well might be interested. [00:14:46] Speaker 04: Again, you had mentioned traffic engineering. [00:14:48] Speaker 04: First and foremost is that the specification never mentions traffic engineering itself. [00:14:54] Speaker 04: That is something that's being interpreted into the specification. [00:14:58] Speaker 04: But secondly, the traffic specifically in this definition are the vehicles on a roadway. [00:15:04] Speaker 04: And then the data is something that's being generated or produced from a signal reflected off of that traffic, which is the vehicles on the roadway. [00:15:13] Speaker 04: And our contention, our belief is that that is the broadest reasonable interpretation of the claim term traffic data in view of both the intrinsic evidence and the extrinsic evidence. [00:15:25] Speaker 00: So for example, your argument is that it's [00:15:30] Speaker 00: broad and reasonable to say that one vehicle, even if it's in the midst of multiple vehicles, would constitute traffic? [00:15:41] Speaker 04: We're saying that it can be one or it can be multiple. [00:15:44] Speaker 00: Well, of course it can be one if one and all are one in the same. [00:15:49] Speaker 00: But if it is one out of 20, then how is that monitoring traffic? [00:15:56] Speaker 04: It's looking at traffic for the purposes of whether it's traffic control, whether it's for collision control. [00:16:02] Speaker 00: No, it's looking at a vehicle. [00:16:02] Speaker 00: It's not looking at the traffic if it's only monitoring one out of multiple. [00:16:06] Speaker 04: There may be only that one vehicle on there. [00:16:08] Speaker 04: But again, our point is that the broadest reasonable definition does not exclude the use of many vehicles. [00:16:17] Speaker 04: I'm looking at many vehicles on the roadway. [00:16:19] Speaker 00: That doesn't make sense to me. [00:16:20] Speaker 00: If you have the phrase the vehicles, all right, [00:16:23] Speaker 00: You could say, well, that could mean one, but it doesn't say one. [00:16:27] Speaker 00: It could mean some, or it could mean all. [00:16:29] Speaker 00: The broadest definition of that is all vehicles. [00:16:34] Speaker 00: The broadest reasonable... Broadest doesn't mean whichever is the thing that makes the patent invalid. [00:16:41] Speaker 00: It means broadest. [00:16:43] Speaker 04: Yes, it's the broadest reasonable interpretation. [00:16:45] Speaker 00: So how is the broadest definition of the vehicles on a roadway not all vehicles on a roadway? [00:16:51] Speaker 04: Because we're trying to define traffic data, and when you're looking at not only the specification, but you're looking at the corroborating evidence, the extrinsic evidence at hand. [00:16:59] Speaker 04: For example, you're looking at the detection technology for IVHS, which is a document provided by a patent owner themselves. [00:17:06] Speaker 04: They specifically have three distinct definitions of traffic data. [00:17:11] Speaker 04: Some of those definitions include a single vehicle. [00:17:14] Speaker 04: They look for a single vehicle, whether it's the type of vehicle. [00:17:17] Speaker 04: And you might need to look at the type of vehicle, because you might have certain loads that are required on a road. [00:17:22] Speaker 04: But they look at the type of vehicle. [00:17:23] Speaker 04: They look at the speed of the vehicle, the length of the vehicle, the motion of the vehicle, as well as multiple vehicles, as well as occupancy, as well as all these other features. [00:17:32] Speaker 04: And so when you're looking at the broadest reasonable interpretation, it must encompass all of these things, not some of these things. [00:17:39] Speaker 04: And so when you're looking at the extrinsic evidence and you're looking at this particular reference itself, it says that traffic data, which it specifically mentions traffic data, unlike the specification of the 557, which only mentions it in the figures and never describes or provides a definition of traffic data, which is admitted by Hawkins himself. [00:18:00] Speaker 00: But more than once, it refers to the flow of traffic, right? [00:18:05] Speaker 04: The specification. [00:18:07] Speaker 04: has a flow of track, but they don't mention that in the claims. [00:18:09] Speaker 04: And you have to look at this also in the context of the claims. [00:18:12] Speaker 04: You also have to look at this in we've mentioned. [00:18:15] Speaker 00: My problem is that this is just common sense. [00:18:19] Speaker 00: Traffic is the flow of vehicles along a roadway, the movement of vehicles along a roadway. [00:18:28] Speaker 00: Every definition says that. [00:18:30] Speaker 00: Common sense says that. [00:18:32] Speaker 00: Why are we parsing this so much? [00:18:34] Speaker 00: that we're taking out the common-sense definition from the term. [00:18:39] Speaker 04: With all due respect, I don't believe that we're taking the common-sense definition out of the term. [00:18:43] Speaker 04: We are looking at the plain meaning of the term. [00:18:45] Speaker 04: But when you look at this in light of the claims themselves, the claims are mentioning the flow of the traffic in the claims themselves. [00:18:53] Speaker 04: They specifically say here that you have a receiver portion for claim the Murnon, for example. [00:18:58] Speaker 00: We've said repeatedly, you don't need to define a term that everybody knows what it means. [00:19:03] Speaker 00: So that if you use a term, we had a case where we used the term telephone. [00:19:09] Speaker 00: And we said, you don't have to define that any further than that. [00:19:12] Speaker 00: People know what a telephone is. [00:19:14] Speaker 00: People know what traffic is. [00:19:16] Speaker 04: I would agree with you that people know what traffic is, but it's the traffic data. [00:19:20] Speaker 04: It's that term itself. [00:19:22] Speaker 04: And one needs to define that term. [00:19:24] Speaker 04: The board thought that it was important as well to define that term in order to proceed further in the proceedings. [00:19:31] Speaker 04: And when you're looking at the broadest reasonable interpretation, not only are they looking at the specification, which does not define the traffic data itself, but you also have to look at the extrinsic evidence which helps you interpret that. [00:19:43] Speaker 04: And they provide then the broadest reasonable interpretation based on that. [00:19:47] Speaker 04: And the detection technology for IBHS in particular specifically mentions traffic data by three different entities, autoscope, traffic analysis systems, and IDET 100. [00:19:59] Speaker 04: And each one of them provide you with a definition. [00:20:03] Speaker 04: And the definition includes both singular as well as plural vehicles. [00:20:08] Speaker 04: And so when you look at the definition, you have to look at the broadest reasonable interpretation. [00:20:12] Speaker 04: And it needs to encompass all of these things that are provided from a common sense standpoint. [00:20:19] Speaker 02: And also- Well, let's look at traffic from a common understanding of the phrase. [00:20:26] Speaker 02: We'll do it like lawyers do. [00:20:28] Speaker 02: one end and the other end and see if we can agree on it. [00:20:31] Speaker 02: At one end, you're watching a particular section of the roadway and all you see, all you sense is a vehicle which is not moving on a heavily trafficked road. [00:20:43] Speaker 02: It seems to me that that's data about traffic which is to say the traffic isn't moving. [00:20:48] Speaker 02: On the other hand, on that particular section of road for a statistically significant period of time, [00:20:57] Speaker 02: There is no reflection. [00:20:59] Speaker 02: There is no vehicle there. [00:21:01] Speaker 02: That seems to me as well to be traffic data for the person interpreting it, because it says somewhere up the road, there's a blockage which isn't permitting vehicles to go by. [00:21:13] Speaker 02: So even if they're not getting any data feed from that particular section of road, that's telling them something. [00:21:20] Speaker 02: So on both those extremes, I think everybody agrees that's still traffic. [00:21:26] Speaker 04: Traffic could be one, some, multiple, or none. [00:21:30] Speaker 04: Absolutely can be. [00:21:32] Speaker 00: But as long as none is equivalent to all. [00:21:35] Speaker 00: In other words, it can be one if there's no one else on the roadway. [00:21:39] Speaker 00: It can be none if there's no one on the roadway. [00:21:41] Speaker 00: That's the whole point. [00:21:42] Speaker 00: We're trying to keep track of the whole flow of the whole movement of these vehicles. [00:21:48] Speaker 04: Yes. [00:21:49] Speaker 04: In the context of the claims, though, what we're trying to do is define again the traffic data and the traffic data [00:21:55] Speaker 04: and defined in the context of the claims, and defined in the specification, where the specification also mentions a specific target that can be obtained. [00:22:03] Speaker 04: Again, one has to look at the totality of the circumstances, and one has to look at what the traffic might be. [00:22:10] Speaker 04: And again, it can't be limited to all. [00:22:13] Speaker 04: It has to be limited, perhaps, to one, because there are many different applications for this particular specification. [00:22:23] Speaker 04: And in fact, [00:22:24] Speaker 04: When we refer to column number 10, column number 10 specifically mentions that the present invention may be embodied in other specific forms without departing from its spirit or essential characteristics. [00:22:36] Speaker 04: And importantly, the described embodiments are to be considered in all respects only as illustrative and not restrictive. [00:22:42] Speaker 01: Well, that's standard boilerplate that's in every patent. [00:22:45] Speaker 01: It really doesn't tell you much. [00:22:48] Speaker 04: What it does tell us, though, is that there's a broad implication to that, and there's a broad interpretation of the specification, and that it was the inventor's intent when he's describing this, or it's consistent with the inventor's description and the specification itself, that the claim construction be looked at more broadly and interpreted more broadly because of that language. [00:23:10] Speaker 04: It's very similar to the Ignite USA, the Camelback Products case. [00:23:15] Speaker 04: which again had very similar language in what it was interpreted by the court was, then we have to interpret the claims in book order. [00:23:22] Speaker 01: Don't you want to tell us how solid a reference Bowles is with respect to these claims and traffic? [00:23:31] Speaker 04: Bowles is very, very pertinent to that. [00:23:34] Speaker 04: Bowles particularly mentions [00:23:36] Speaker 04: that it's for the goals of the US Department of Transportation for IBHS, which is the Intelligent Vehicle Highway System, which is very similar to what not only that the 557 patent is, but also very similar to what the patent owner has provided us with their article for the detection. [00:23:56] Speaker 02: What's your best evidence to [00:23:58] Speaker 02: to support your interpretation of why a person's skill would be motivated to combine Bowles with the other prior references? [00:24:07] Speaker 04: So as far as the obviousness is concerned with Bowles, we would have to look to that was the Bowles in view of the Herman and the Farmer reference. [00:24:18] Speaker 04: And basically what we have in that particular case is that Bowles specifically mentions [00:24:24] Speaker 04: that they have a transmit and they have a receive portion, but they don't say how they're putting that together. [00:24:32] Speaker 04: And we have here that Pare itself, as well as Herman, both say that it's cost effective to put a single board into the system itself. [00:24:41] Speaker 04: Both of them explicitly mentioned that. [00:24:44] Speaker 04: And in addition to that, although the board did address this issue where, although you could provide a particular advantage [00:24:52] Speaker 04: or benefit to a particular reference, the primary reference, that you don't have to show all, maybe other advantages and disadvantages. [00:25:00] Speaker 04: But interestingly enough, Pare itself mentions that there is a leakage issue, and that their single board that they're using has solved this leakage issue. [00:25:10] Speaker 04: And Bowles also has that leakage issue. [00:25:13] Speaker 04: So they are certainly solving a problem that's in the Bowles reference. [00:25:21] Speaker 02: that Wavetronics appears, and I'll let Mr. Lerner correct me, appears to predicate its obviousness arguments on claim construction, on its claim construction argument. [00:25:33] Speaker 02: If we agree with TTAB on claim construction, do we even have to get to obviousness? [00:25:40] Speaker 04: Well, as far as an anticipation rejection, no, you wouldn't need to get into obviousness. [00:25:44] Speaker 04: But we have many different references that are part of our rejection that were sustained. [00:25:50] Speaker 04: And one of them happened to have been with regards to the obviousness of combining bowls with either Herman or with Farmer. [00:25:59] Speaker 04: And that is to put a single circuit board on or use a single circuit board in bowls. [00:26:04] Speaker 04: And we're not looking for a bodily incorporation here. [00:26:06] Speaker 04: We're looking just to say that we have a single circuit board and we're using that single circuit board for the transmit as well as the receive antennas. [00:26:15] Speaker 00: Do the boys' obviousness conclusions depend on their time construction? [00:26:19] Speaker 04: I don't believe that they do, actually. [00:26:21] Speaker 00: I would submit to this Court, and as we've already briefed here... Didn't the Court base its obvious misconclusion on its plan construction? [00:26:32] Speaker 00: In other words, if we disagree, how do you respond to the argument on the other side that we can't just adopt your alternative grounds for affirming because that would be a chennery problem? [00:26:44] Speaker 04: That would not, because that was already argued in the lower proceedings. [00:26:49] Speaker 00: But that's different. [00:26:51] Speaker 00: This isn't a district court proceeding. [00:26:53] Speaker 00: This is an agency proceeding. [00:26:54] Speaker 00: And we can only base a decision on the same grounds that the agency based their decision. [00:26:59] Speaker 04: And they based their decision on their interpretation. [00:27:02] Speaker 04: But they also, in their interpretation and throughout their brief, have gone back and forth between looking at their own interpretation [00:27:12] Speaker 04: as well as the patent owner's interpretation. [00:27:16] Speaker 00: Where in the board's opinions would the board say, even if we accept the patent owner's definition, it's still obvious? [00:27:26] Speaker 04: I don't believe that I have that on hand, but I do know that it would be somewhere in the appendix 41, 42, 43 area, perhaps, [00:27:38] Speaker 04: And what they're doing in the particular decision, I have the decision here, if I may, they specifically mention in here that they've looked to the patent owner's interpretation. [00:27:54] Speaker 04: They looked at the petition's interpretation. [00:27:57] Speaker 04: They've adopted their own interpretation. [00:27:58] Speaker 04: And with the adoption of their own interpretation, they've settled this. [00:28:02] Speaker 04: But they've also looked at the other ones. [00:28:04] Speaker 04: And according to the practice rules. [00:28:05] Speaker 00: I don't see them saying. [00:28:07] Speaker 00: that even if we accept an alternative claim construction, that we would still find it to be obvious. [00:28:15] Speaker 04: My time is up. [00:28:16] Speaker 01: No, you can finish and answer the question. [00:28:20] Speaker 04: They didn't specifically mention that in the alternative, that if we adopted their grounds, that it would still be found obvious. [00:28:27] Speaker 04: No, they did not. [00:28:27] Speaker 04: I'm sorry if you misinterpreted. [00:28:29] Speaker 04: If I misspoke on that or there was a misinterpretation, [00:28:33] Speaker 04: What I am saying is that they were briefed on that. [00:28:35] Speaker 04: It was part of the arguments in the lower tribunal with regards to Bowles and with regards to Farmer. [00:28:45] Speaker 04: And we briefed that at page 31, 46, 47 of our own brief. [00:28:50] Speaker 04: And with regards to the Bowles reference itself, they are now bringing that up in this tribunal and this proceedings itself. [00:28:58] Speaker 04: And it was briefed here with regards to the Bowles reference. [00:29:04] Speaker 01: Thank you, Council. [00:29:06] Speaker 03: I think it's an interesting exercise, Your Honors, if you would look at Claim 9 and substitute the PTAB's definition for traffic data, it would read like this. [00:29:31] Speaker 03: a receiver portion that detects a reflected signal from the vehicles traveling on the roadway and that generates a data signal that represents any data generated or produced from a signal reflected off vehicles on a roadway from the reflected signal. [00:29:48] Speaker 03: Adopting that interpretation, the second half of that claim element is the same as the first. [00:29:56] Speaker 03: They're saying any data generated or produced from a signal [00:30:00] Speaker 03: is traffic data, but that is already required by the first part of the claim element. [00:30:05] Speaker 03: The first part of the claim element requires a reflected signal from the vehicles traveling on the roadway. [00:30:15] Speaker 03: They just eviscerate any meaning for traffic data when they add that, when they use that interpretation. [00:30:23] Speaker 03: Now, I'd like to respond if I could briefly to [00:30:27] Speaker 03: Judge Wallach's question about bowls. [00:30:32] Speaker 03: The question there about the combination of bowls for obviousness purposes. [00:30:39] Speaker 03: The bowls reference, in our view, is not about traffic data. [00:30:43] Speaker 03: The only one they talk about in bowls they rely on, PTAB, was the passive mode. [00:30:49] Speaker 03: And both the text of bowls and the testimony from Mr. Alland about bowls, he's their expert, [00:30:56] Speaker 03: about Bowles was that the only thing that thing does is determine whether there is one vehicle traveling much faster than the general traffic on the road. [00:31:05] Speaker 03: That's not traffic data. [00:31:08] Speaker 03: He said, in fact, that if all the vehicles were going by at 100 miles an hour, he said the same speed, it wouldn't detect any of them. [00:31:15] Speaker 03: And he said that, and Bowles itself says there's 65 feet resolution. [00:31:20] Speaker 03: You can't detect individual vehicles at 65 feet because [00:31:24] Speaker 03: it gloms everything within the 65 feet into one reflection. [00:31:28] Speaker 03: That is not about traffic data. [00:31:30] Speaker 03: It just isn't. [00:31:31] Speaker 03: Now, with respect to the combination, they try to combine bowls and parrot, parrot and or Herman. [00:31:39] Speaker 03: And they say that Herman teaches the circuit board, and so does parrot. [00:31:44] Speaker 03: And therefore, it would have been smart to put bowls. [00:31:47] Speaker 03: A person of ordinary skill would have been motivated to put bowls on a circuit board like Herman's or Parrott's. [00:31:53] Speaker 03: Well, with Herman, [00:31:54] Speaker 03: Bowles talks about this need to have their receiver and their transmitter six feet apart to deal with the leakage problem. [00:32:03] Speaker 03: I've never seen a circuit board that's six feet big to deal with that. [00:32:07] Speaker 03: Herman does not. [00:32:09] Speaker 03: That just doesn't work. [00:32:10] Speaker 03: Now Parrott has this complicated lattice work to deal with the leakage problem. [00:32:16] Speaker 03: It has the lattice and has a lid on the lattice. [00:32:20] Speaker 03: I'm over. [00:32:20] Speaker 03: May I finish? [00:32:21] Speaker 01: Finish your answer. [00:32:24] Speaker 03: It has a lid on the lattice, and Mr. Alland testified that it would be A, more complex, more parts, and B, more expensive than what was already being done. [00:32:35] Speaker 03: Now, if you look at motivation from a common sense point of view, it is, what would somebody out there working in the trenches do? [00:32:42] Speaker 03: Well, he would look at all these things, cost, effectiveness, and it just doesn't work with parrot for that reason. [00:32:50] Speaker 03: I thank you for your time this morning. [00:32:52] Speaker 01: Thank you, counsel. [00:32:54] Speaker 01: We'll take the case under advisement.