[00:00:52] Speaker 03: Our next case is number 18-1663, QFO Labs Inc. [00:00:59] Speaker 03: versus Parrott SA. [00:01:02] Speaker 03: Mr. Pedersen. [00:01:06] Speaker 02: Thank you, Your Honor, and good morning. [00:01:08] Speaker 02: May it please the Court. [00:01:10] Speaker 02: I want to start with why this Court should vacate the denials and the motions to amend, and because the Board erred as a matter of law in its claim construction and its legal conclusions of obviousness. [00:01:23] Speaker 02: The board aired because it equated motion with orientation in the claim, construction, and in the legal analysis. [00:01:33] Speaker 02: Although motion and orientation are mathematically related, they're not equivalent. [00:01:42] Speaker 02: Mimicking motion does not mimic orientation. [00:01:48] Speaker 02: And if I could show you, this is kind of a tough concept to get across [00:01:53] Speaker 02: So let me walk you through the primary reference and the secondary references, the arguments that Parrott was making and what the board ruled on. [00:02:00] Speaker 02: Primary reference is a joystick controller, Louisville. [00:02:04] Speaker 02: When you move the joystick on the handle, the craft moves in response to the motion and position of that joystick. [00:02:12] Speaker 02: But if I take Louisville's entire controller and I turn it sideways, the craft stays in the same position. [00:02:21] Speaker 02: Why? [00:02:22] Speaker 02: Because the joystick handle, relative to the base, didn't change. [00:02:27] Speaker 02: The position didn't change. [00:02:29] Speaker 02: That's why Louisville is a position-based control. [00:02:32] Speaker 02: Well, that's not the only thing they relied on. [00:02:34] Speaker 02: Exactly. [00:02:35] Speaker 02: So they went to a series of three secondary references, all of which are early 1990s air mice, where you have a controller and you move it around in the air to move a cursor on the screen. [00:02:53] Speaker 02: So I'm moving this cursor on the screen by moving my air mouse, okay? [00:02:59] Speaker 02: But what both Parrot and the board admit is that Louisville, if you have no action on the controller, returns the craft to a flat or normal attitude. [00:03:14] Speaker 02: It makes the craft go still, okay? [00:03:18] Speaker 02: Likewise, for all of these air mice, [00:03:20] Speaker 02: I'm moving my cursor around, I'm moving my soft robot around on the screen. [00:03:25] Speaker 02: But if I stop moving, the cursor stops. [00:03:30] Speaker 02: The robot stops. [00:03:34] Speaker 02: That's mimicking motion. [00:03:37] Speaker 02: All right? [00:03:38] Speaker 01: Now, substitute... You're saying that the real problem is that they just factually didn't understand the references. [00:03:48] Speaker 02: And if you look at substitute claim 25, in their broadest reasonable interpretation for claiming, they construed orientation very broadly. [00:03:57] Speaker 02: So we were faced with a choice. [00:03:58] Speaker 02: What do we do? [00:03:59] Speaker 02: Do we argue the BRI construction? [00:04:02] Speaker 02: Do we try and cancel these claims, which would invoke 42.73? [00:04:05] Speaker 02: Or do we move to amend as is our right under 316D? [00:04:11] Speaker 02: We chose the latter because we thought we could clarify the BRI construction. [00:04:16] Speaker 02: to make clear with the added language that's in substitute claim 25 that the actual orientation of the RC flying hovercraft mimics the sensed orientation of the RC controller. [00:04:31] Speaker 02: Now. [00:04:32] Speaker 01: But you conceded that movement and orientation are derivatives of one another, right? [00:04:37] Speaker 02: I admit that they are derivatives of one another, but let me explain to you why they're different, why they are not equivalent to each other. [00:04:46] Speaker 02: In an orientation-based control system, if I orient the motion controller tilted forward, the craft mimics that motion. [00:05:01] Speaker 02: If I hold that controller still, the craft is still in this motion. [00:05:08] Speaker 02: It keeps moving because the orientation of the craft is mimicking [00:05:15] Speaker 02: The orientation of the controller. [00:05:17] Speaker 01: Is your focus on the second prong of the gravitational reference, sensing the tilt? [00:05:24] Speaker 02: Yes. [00:05:25] Speaker 01: OK, so your real position is that it doesn't sense the tilt with respect to the gravitational reference. [00:05:31] Speaker 01: Correct. [00:05:32] Speaker 01: It senses the tilt with respect to a different frame of reference. [00:05:36] Speaker 02: In Nagamitsu, for example, it may sense inclination with respect to a magnetic reference. [00:05:42] Speaker 02: But what it is doing with that is [00:05:44] Speaker 02: It's taking that inclination in the soft robot, and it's using it to move the robot. [00:05:50] Speaker 03: This sounds like an oral argument for the board. [00:05:53] Speaker 03: I mean, you know, that's not our job. [00:05:55] Speaker 03: They find the facts. [00:05:57] Speaker 03: If there's substantial evidence, we affirm. [00:05:59] Speaker 02: This is the legal conclusion, Your Honor, and I would argue that this panel needs to review this de novo. [00:06:05] Speaker 02: De novo? [00:06:06] Speaker 02: Because of the claim construction. [00:06:09] Speaker 02: On page 129 of the appendix. [00:06:10] Speaker 01: So you're saying that the board didn't really construe [00:06:14] Speaker 01: the second aspect, the sensing the tilt aspect. [00:06:17] Speaker 02: Correct. [00:06:17] Speaker 02: On page 129. [00:06:18] Speaker 01: So as I understand your argument is that you at least want us to send it back for the board to assess whether or not assessing the tilt with respect to the magnetic field is the same as assessing the tilt with respect to the gravitational reference. [00:06:34] Speaker 02: At a minimum, Your Honor, that's what should go back. [00:06:37] Speaker 02: The other thing that needs to go back is post SAS, the board had to evaluate SATO. [00:06:44] Speaker 02: as a reference. [00:06:44] Speaker 02: That was one of the grounds raised by Parrott. [00:06:49] Speaker 02: The board dispensed with that. [00:06:52] Speaker 01: Parrott argues... How is that a harm to you when the board didn't assess one of their challenges? [00:06:58] Speaker 02: Because our position was, Sado teaches away. [00:07:02] Speaker 02: Out of the three references of the air mice, Sado is the only one that addressed the problem of what happens when you hold the controller still. [00:07:11] Speaker 03: Well, you were barred from arguing that Sado teaches away, right? [00:07:14] Speaker 03: That's what I'm arguing. [00:07:15] Speaker 03: Yes. [00:07:15] Speaker 03: Well, no, but did you argue that to the board? [00:07:17] Speaker 03: Absolutely. [00:07:18] Speaker 02: We argued it to the board. [00:07:19] Speaker 02: They rejected it, right? [00:07:20] Speaker 02: No. [00:07:21] Speaker 02: In the 5-8-0 patent IPR, the board accepted that argument. [00:07:27] Speaker 02: The board said that the combination of Louisville and Sado. [00:07:31] Speaker 02: We're on the 5-3-2 and the 5-9-0. [00:07:33] Speaker 02: Yes, Your Honor. [00:07:34] Speaker 01: Right. [00:07:34] Speaker 01: Are you saying the board refused to even engage with Sado? [00:07:39] Speaker 02: Yes. [00:07:40] Speaker 02: only with respect to original claim eight if you look in the appendix on pages one twenty six one twenty nine the board did not dress sado and what sado did sado in our opinion is very critical to this because it's the only reference with a motion for leave to amend are you saying that you address sado yes we did your honor in fact sado was raised by parrot as one of the grounds of response to the motion forget about what they raised i'm asking you did you raise yes we did your where did you raise [00:08:10] Speaker 02: We've raised SADO in both of the briefs. [00:08:15] Speaker 02: You'll see the raising there of that argument. [00:08:19] Speaker 02: SADO teaches a motion-based controller. [00:08:22] Speaker 02: It is on page 12 of the motion of the brief. [00:08:28] Speaker 01: If you take a look at... Does this have to do with their saying they weren't allowed to look at your patent owner response? [00:08:38] Speaker 01: Is that where you primarily raised SADO? [00:08:41] Speaker 01: When you said one of your complaints here is that the board said you can't incorporate by reference, so therefore we refuse to look at the rest of the record. [00:08:51] Speaker 02: Yes. [00:08:52] Speaker 02: On 42.6A3. [00:08:53] Speaker 03: So it shows where you argued Sado in connection with the motion for leave to amend. [00:09:03] Speaker 02: If I could do that on rebuttal, I'll look up and tell you exactly where it is, Your Honor, because it is argued throughout there. [00:09:10] Speaker 02: If you look at, for example, [00:09:12] Speaker 03: No, I just want to see where you did it. [00:09:14] Speaker 03: Because you're complaining they didn't address it. [00:09:16] Speaker 03: And there's no reason for them to address it if you didn't argue. [00:09:20] Speaker 03: We did argue it, Your Honors. [00:09:25] Speaker 02: And I'm trying to find the table in the yellow brief that laid out the arguments. [00:09:31] Speaker 02: And what you'll see in there is that those arguments actually specifically addressed. [00:09:36] Speaker 03: If you come before us to argue that the Commission failed to address an argument you made, you should be prepared to show us where you made the argument. [00:09:47] Speaker 02: It is Appendix, page 82, the blue brief, page 43. [00:09:52] Speaker 02: We discuss where we made this argument. [00:09:55] Speaker 02: The argument is represented in the [00:09:59] Speaker 02: decision by the board where they went through our argument. [00:10:02] Speaker 03: I forget about the decision by the board. [00:10:04] Speaker 03: I'm just asking you first, where in connection with the motion to amend did you make this argument? [00:10:09] Speaker 03: Just show me. [00:10:10] Speaker 03: Is it on page 82? [00:10:11] Speaker 03: That's an IPR decision. [00:10:13] Speaker 03: That's not your argument. [00:10:15] Speaker 02: That says what the patent owner argued. [00:10:18] Speaker 03: Is this on the motion for leave to amend? [00:10:20] Speaker 03: Yes. [00:10:24] Speaker 01: Parrott's position is that you didn't argue that Sato teaches away anything in relating to the combination with Nagamitsu. [00:10:33] Speaker 01: You only argued it when Sato was part of a combination. [00:10:37] Speaker 02: And, Your Honor, the Board acknowledged that the motion-based controllers were equivalent. [00:10:44] Speaker 02: And we argued... The Board did not address Sato with respect to the substitute claims. [00:10:54] Speaker 02: It only addressed SEDA with respect to the original claims. [00:10:58] Speaker 03: Okay, but where did you argue that SEDA was helpful to you in connection with the substitute claims? [00:11:09] Speaker 02: Your honor, I will get to you on rebuttal. [00:11:11] Speaker 02: I apologize for not having that citation at my hand here. [00:11:16] Speaker 02: But what I would like to do is, if I could, explain why SEDA was relevant. [00:11:22] Speaker 02: SEDA, as we argued to the board below, [00:11:25] Speaker 02: teaches of floating detection means. [00:11:28] Speaker 02: Why does it teach of floating detection means? [00:11:32] Speaker 02: Because if a user is holding a controller at a slight angle and holding it still, the accelerometer will sense some aspect of gravity. [00:11:47] Speaker 02: And Sado realized and expressly teaches that that means that [00:11:53] Speaker 02: The controller might be thinking that it's moving because there's some sensation on the accelerometer, but it's not. [00:11:59] Speaker 02: The controller's being held still. [00:12:01] Speaker 02: It's detecting the force of gravity a little bit. [00:12:06] Speaker 02: And in order not to confuse that with a motion signal, Sado says, put those accelerometers in a floating detection structure so that they never have to worry about not being oriented with respect to gravity. [00:12:23] Speaker 02: And as a result, Sado teaches in what we argue, it teaches away because it teaches ignoring gravity. [00:12:32] Speaker 02: And that's what was argued to the board below. [00:12:35] Speaker 02: That was addressed by the board with respect to original claim aid. [00:12:39] Speaker 02: It was never addressed by the board with respect to substitute claim 25. [00:12:42] Speaker 01: Well, that's really part of the important question here is you argued it with respect to original claim eight. [00:12:48] Speaker 01: Did you ever really argue it with respect to the amended claim? [00:12:52] Speaker 02: Yes, we did, Your Honor. [00:12:53] Speaker 02: We argued that. [00:12:54] Speaker 01: Well, you cite back to your prior patent owner response, and assuming it was error for the board not to consider it, even if you go back to that prior patent owner response, I don't see anything where you discuss it other than with respect to original claim eight. [00:13:14] Speaker 02: We did discuss the fact that that teaching away caught against the combination of those references, because you would not look to a motion-based controller to find a gravitational reference. [00:13:28] Speaker 02: So in the context of the gravitational reference, we taught that with respect to the amended claim language in substitute claim 25. [00:13:37] Speaker 03: You're in your rebuttal. [00:13:39] Speaker 03: Do you want to save it? [00:13:40] Speaker 03: Thank you. [00:13:49] Speaker 00: Mr. Trotman. [00:13:50] Speaker 00: Good morning. [00:13:51] Speaker 00: May it please the court? [00:13:52] Speaker 00: I'd like to begin by addressing this discussion of Sado and hopefully clarifying the record for your honors. [00:13:58] Speaker 01: Let me ask you, and this is, you know, hypothetically, because I don't know where the court would come out on this, but it seems to me that using this incorporation by reference to say we're not going to consider the patent owner response is inappropriate. [00:14:12] Speaker 01: I mean, that regulation on incorporation by reference relates to [00:14:17] Speaker 01: expert affidavits and exhibits. [00:14:20] Speaker 01: It's very specific about what you're not supposed to incorporate by reference. [00:14:24] Speaker 01: And it would seem that refusing to look at the rest of the record is totally inconsistent, not only with Aqua products, but with the APA. [00:14:33] Speaker 01: So assuming that it would have been error not to look at the patent owner response, can you address whether or not you think even looking at the patent owner response, there was [00:14:45] Speaker 01: was an actual harmful error? [00:14:47] Speaker 00: Sure, I'd be happy to. [00:14:48] Speaker 00: Let me just briefly address your points, Judge O'Malley. [00:14:51] Speaker 00: So I don't think we agree, I don't think I agree that it's inconsistent with aqua products, the incorporation by reference, and for simple reason, because the instituted claims our prior art combination was a different set of prior art. [00:15:05] Speaker 00: So what's happening with the incorporation by reference and what [00:15:08] Speaker 01: Right, but the APA specifically says you have to consider the entirety of the record as a whole. [00:15:13] Speaker 00: I understand. [00:15:14] Speaker 00: My point, though, is those arguments are specific to a combination of three pieces of prior art for the institute claims that are different prior art than what's presented for the substitute claims. [00:15:24] Speaker 00: But they didn't say, we're looking at this, we don't find it relevant. [00:15:27] Speaker 00: They just said, we're not going to even look at it. [00:15:29] Speaker 00: Well, that's not exactly true either, because that's my second point, Your Honor. [00:15:32] Speaker 00: And that is, they said we find this procedurally improper. [00:15:35] Speaker 00: And then if you look at the board's decisions, they then [00:15:38] Speaker 00: make substantive determinations in any event. [00:15:41] Speaker 00: So the point is, even if you find that it was procedurally improper, you still have the board's substantive rationale that you can review for substantial evidence and hopefully affirm. [00:15:54] Speaker 00: So that's where it would come out on the corporation by reference. [00:15:57] Speaker 00: But I also just really want to make clear what's happening here with CEDAW, because it really does feed into both the points I just made, Your Honor. [00:16:04] Speaker 00: So they move to amend. [00:16:07] Speaker 00: we filed an opposition brief. [00:16:09] Speaker 00: Then they file a reply brief in response to our opposition brief. [00:16:15] Speaker 00: And in our opposition brief, we raised two distinct grounds why the substitute claims were invalid. [00:16:21] Speaker 00: We had one ground involving Sato as a secondary reference and a second ground involving Nagamitsu as a secondary reference. [00:16:28] Speaker 00: Now, in appendix pages 667 through 676, that's their reply brief where they deal with the Sato combination. [00:16:37] Speaker 00: Teaching away is explicitly raised there with respect to the Sato combination. [00:16:41] Speaker 00: But then you move to appendix 677 to 680. [00:16:45] Speaker 00: That's the part of their reply brief that deals with the Nagamitsu reference. [00:16:49] Speaker 00: There's not a mention made of teaching away. [00:16:52] Speaker 00: We pointed that out in our red brief on page 29. [00:16:54] Speaker 00: Then in their reply brief here before this court, they then cite to pages 681 to 682, which has been section E of their reply brief as no, yes, we actually did raise [00:17:07] Speaker 00: Sato. [00:17:08] Speaker 00: But all, there's one line, it's the second line of page 682 on the appendix where teaching away is made as part of a laundry list of incorporation by reference to the patent owner's response. [00:17:21] Speaker 00: But the board explicitly addressed all of those arguments with respect to the instituted claims and specifically on appendix page 38 and 39 rejected the teaching away arguments with respect to Sato. [00:17:34] Speaker 00: the exact same arguments, because all they did in their reply brief on the motion to amend is incorporate, by reference, their earlier arguments. [00:17:41] Speaker 01: So those arguments are... So you're saying the earlier arguments only related to instituted claimate? [00:17:47] Speaker 00: If you look at page 682 of the record, that's their reply brief on the motion to amend. [00:17:53] Speaker 00: All they did in that page is say, look at our earlier arguments with respect to the instituted claims. [00:17:59] Speaker 00: That's the only substance of their argument on that page. [00:18:02] Speaker 01: And my point is... [00:18:04] Speaker 01: Sado teaches a way. [00:18:07] Speaker 01: Does that impact the Nagamitsu reference or not? [00:18:12] Speaker 00: We would say, first of all, the board said it doesn't, found as a matter of fact that it doesn't teach a way, and that the second point, Your Honor, is also correct, that it doesn't affect Nagamitsu because it's a completely different prior art reference. [00:18:24] Speaker 00: And let me just be clear as to what the board found as a matter of fact with respect to the Sado reference. [00:18:31] Speaker 00: Sado discloses a number of different embodiments, one of [00:18:34] Speaker 00: one embodiment of SATO has this floating detection means. [00:18:38] Speaker 00: That's just one of a number of options. [00:18:40] Speaker 00: And the board found that at most, SATO would teach away from using these floating detection means. [00:18:46] Speaker 00: But of course, these floating detection means are not part of our proposed combination. [00:18:50] Speaker 00: They're not what Nagamitsu teaches. [00:18:52] Speaker 00: To the contrary, Nagamitsu teaches the exact same sensor system as what's disclosed in the QFL patents. [00:19:03] Speaker 00: specifically, and this is figure four of Nagamitsu, that's appendix page 1941, shows it very clearly. [00:19:11] Speaker 00: It shows three accelerometers arranged in an X, Y, Z arrangement, so ethagonally, and it has a little G with an arrow pointing down on it. [00:19:22] Speaker 00: It's in bubble number 36 on figure four of Nagamitsu. [00:19:26] Speaker 00: That X, Y, Z sensor arrangement with accelerometers is the exact sensor arrangement [00:19:32] Speaker 00: that's disclosed in the QFL patents and the board found as a matter of fact that Nagamitsu teaches sensing a gravitational reference. [00:19:41] Speaker 00: It explicitly shows the gravitational reference in that figure. [00:19:44] Speaker 01: But did they address the second prong of the gravitational reference? [00:19:48] Speaker 01: In other words, that they sense the tilt with respect to the gravitational reference as opposed to sensing the tilt with respect to the magnetic field. [00:19:57] Speaker 00: Well, let me, let me, let me clarify. [00:19:59] Speaker 01: Those are two different things, right? [00:20:00] Speaker 00: They did. [00:20:01] Speaker 00: And the difference, the difference here is, your honor, that actually the Nagamitsu controller is more functional, has more functionality than what's disclosed in the QFO pad. [00:20:10] Speaker 00: So if you look again at figure four, this is very, very telling. [00:20:14] Speaker 00: So Nagamitsu, figure four talks about [00:20:16] Speaker 00: Inclined sensing the sensor with inclining to the left or right and forward and back. [00:20:21] Speaker 00: That's what the accelerometers do. [00:20:23] Speaker 00: The Nagamitsu controller also just rotating. [00:20:27] Speaker 00: You can not change the tilt at all. [00:20:28] Speaker 00: And by the way, we certainly think the board was right in finding that tilt and inclination are synonymous with one another. [00:20:34] Speaker 00: But the Nagamitsu sensor has the additional ability to just rotate it without tilting it. [00:20:41] Speaker 00: That's where the magnetism function comes in. [00:20:43] Speaker 01: Because you're essentially changing the count. [00:20:47] Speaker 01: discuss whether there's any difference in the claim, from the claim that says sensing the tilt with respect to the gravitational reference versus the Nagamisutishi that says sensing the tilt with respect to the magnetic field. [00:21:03] Speaker 00: The board found as a matter of fact that it's not sensing the tilt with respect to the magnetic field. [00:21:07] Speaker 00: That's not what the board found. [00:21:08] Speaker 00: The board found as a matter of fact, and that is at appendix page [00:21:17] Speaker 00: 56 and 127, the board found as a matter of fact that Nagamitsu was sensing the tilt with respect to gravity. [00:21:23] Speaker 00: And again, it cited figure four and the associated text. [00:21:27] Speaker 01: The fact that there's this- I'm sorry, what page were you on? [00:21:29] Speaker 00: It's appendix page 56, Your Honor. [00:21:32] Speaker 00: Okay, got it. [00:21:49] Speaker 00: Sorry. [00:21:51] Speaker 00: Bear with me. [00:21:52] Speaker 00: Sorry, Your Honor. [00:21:55] Speaker 00: Were the reasons discussed above? [00:21:57] Speaker 00: Well, let me find. [00:21:59] Speaker 00: There's a distinguished, especially the deal with this magnetism point. [00:22:03] Speaker 00: I think it's an important point for me to discuss, Your Honor. [00:22:16] Speaker 03: On 56, they say, [00:22:18] Speaker 03: Petitioner Patanon argues that Nagamitsu teaches a motion-based controller with a magnetic reference, not a gravitational frame of reference. [00:22:25] Speaker 03: And then they find that that's not the case. [00:22:28] Speaker 00: Thank you. [00:22:28] Speaker 00: I'm sorry. [00:22:29] Speaker 00: I missed it. [00:22:29] Speaker 00: I had it right in my notes. [00:22:31] Speaker 00: That's exactly right. [00:22:32] Speaker 00: So the board is finding, as a matter of fact, that the tilt feature, the inclination feature of Nagamitsu is based on gravity. [00:22:39] Speaker 00: And again, there's very clear, substantial evidence for that. [00:22:42] Speaker 00: You need to look no farther than figure four, where in the bubble showing the accelerometers, [00:22:48] Speaker 00: there's a little label G pointing down. [00:22:50] Speaker 00: A person with skill in the art would understand that to be referring to gravity. [00:22:56] Speaker 00: And in fact, the board also cited the testimony of QFO's expert, and this is at appendix 53 and 57. [00:23:08] Speaker 00: He testified, gravitational reference means the use of the gravity vector as a component of the reference [00:23:15] Speaker 00: the term would be understood as the downward direction of Earth. [00:23:19] Speaker 00: And again, appendix page 1941, when you have the little G written right next to the accelerometers, that's the gravitational reference. [00:23:26] Speaker 00: And that's what the board found as a matter of fact. [00:23:31] Speaker 00: My opposing counsel also characterized Nagamitsu as a motion-based [00:23:40] Speaker 00: controller that is using for a mouse. [00:23:43] Speaker 00: But that's not what Nagamitsu is. [00:23:45] Speaker 00: Nagamitsu is controlling a soft robot. [00:23:48] Speaker 00: And that is not only moving when you're moving the sensor. [00:23:52] Speaker 00: And column 15 of Nagamitsu, the board relied on a portion of column 15. [00:23:59] Speaker 00: It's appendix page 1971. [00:24:01] Speaker 00: That is also, as a matter of fact, legally very illustrative. [00:24:05] Speaker 00: It says the user can manipulate the simulator. [00:24:07] Speaker 00: That's the soft robot. [00:24:08] Speaker 00: naturally as if you were using a joystick of a TV game or a control stick of a helicopter. [00:24:14] Speaker 00: And when you use a control stick of a helicopter or a joystick on a TV game, as long as you're pushing the joystick to the right, whatever you're controlling is going to move to the right. [00:24:26] Speaker 00: And similarly, just like it says, it's sensing tilt or inclination, as long as you're tilting it to the right, you're going to be moving the controlled object to the right. [00:24:35] Speaker 00: The board found that as a matter of fact, relying on this portion of Nagamitsu. [00:24:41] Speaker 00: And then in addition to that, the board also repeatedly cited the testimony of QFO's expert that motion and orientation are mathematically related to one another. [00:24:53] Speaker 00: They're derivatives. [00:24:54] Speaker 00: If you know one, you know the other. [00:24:56] Speaker 00: So this is all based on an artificial distinction between motion and orientation. [00:25:03] Speaker 00: They are linked mathematically to one another. [00:25:04] Speaker 00: The board found that as a matter of fact, and it's well supported by the record where Nagamitsu talks about sensing inclination. [00:25:11] Speaker 01: Well, he conceives that they're derivatives of each other, but he goes back to this question of how does the tilt get sensed? [00:25:21] Speaker 00: Right. [00:25:21] Speaker 00: Well, so we're mixing two different claim limitations here. [00:25:24] Speaker 00: They added one limitation talking about mimicking the sensed orientation of the controller versus the sensed orientation [00:25:32] Speaker 00: aircraft. [00:25:34] Speaker 00: And then I believe now you're going back to the other limitation, which is the gravitational reference limitation. [00:25:39] Speaker 00: So I want to make sure they're distinct because the board made two separate factual findings, both of which are well supported. [00:25:46] Speaker 00: And with respect to the, again, going back to your question, Judge O'Malley, on the gravitational reference point, that is where the board again relied on the disclosure in figure one of the three axis accelerometers with the gravitational reference explicitly noted next to them. [00:26:02] Speaker 00: and relied on also the testimony of QFO's expert that gravitational reference, that's what's referred to in the claim, is the use of a gravity vector as a component of the reference frame. [00:26:26] Speaker 00: And that's exactly what the board found, as a matter of fact, is disclosed by Nagamitsu. [00:26:32] Speaker 01: And there was no request for further construction of that term. [00:26:36] Speaker 00: That's exactly right. [00:26:37] Speaker 00: As a matter of fact, QFL made no request for further construction of any terms that it proposed, neither the orientation terms nor the gravitational reference terms. [00:26:48] Speaker 00: So unless the court has any additional questions, I'll reserve the rest of my time. [00:26:56] Speaker 03: OK, thank you, Mr. Trout. [00:27:01] Speaker 01: Well, you can reserve it, but I don't know what you're going to do with it. [00:27:04] Speaker 00: I will waive it. [00:27:05] Speaker 00: Thank you, Your Honor. [00:27:11] Speaker 02: Your Honor, in answer to your question, Judge Dyke, section E, as counsel indicated, is entitled, neither seto nor nagamitsu could be combined with lovo. [00:27:23] Speaker 02: And we made that argument at page 10 of our reply to their opposition to the motion to amend. [00:27:29] Speaker 03: So that was with respect to... Okay, but that's addressing combining SATO, not saying that SATO teaches something that relates to negligence. [00:27:37] Speaker 02: That you would not combine SATO with the reference because it teaches the way. [00:27:44] Speaker 02: Okay. [00:27:44] Speaker 02: Okay. [00:27:44] Speaker 01: So, counsel... Why did you put this whole patent owner estoppel thing in your brief? [00:27:51] Speaker 01: I mean, you can't possibly think that it's right for our consideration right now. [00:27:56] Speaker 02: I believe that it is, Your Honor. [00:27:57] Speaker 02: We would have canceled the claims. [00:28:00] Speaker 02: But for the fact, the patent owner estoppel would then implicate any future IPRs and any future continuations of our case. [00:28:08] Speaker 01: Well, that's not ripe until we actually find out if it implicates it, right? [00:28:13] Speaker 02: We couldn't cancel the claims. [00:28:15] Speaker 02: So in this IPR, we didn't have a chance to do that. [00:28:19] Speaker 02: In fact, actually, as Your Honor's opinion in Aqua Products points out, it's impermissible to shift the burden. [00:28:27] Speaker 02: And yet, 4273D3 shifts the burden. [00:28:30] Speaker 02: The question that has never been asked. [00:28:32] Speaker 01: But it's impermissible to shift the burden in connection with assessing the validity of the substitute claims. [00:28:42] Speaker 01: And the board didn't do that here. [00:28:44] Speaker 02: The board recited the words that it was not doing it. [00:28:48] Speaker 02: And yet the reality is, because they found claim on 8, unpatentable, rule 4273D3 theoretically could apply to original claim 8. [00:29:01] Speaker 02: and turn that into prior art. [00:29:05] Speaker 02: But I would point to Judge Dyke's comment in the last hearing that merely because you could combine the two references doesn't mean that you get to the claimed invention. [00:29:18] Speaker 02: We didn't ask for further claim construction because we made expressly clear that the motion of the craft mimics the motion of the orientation, excuse me, of the craft [00:29:31] Speaker 02: mimics the orientation of the controller. [00:29:34] Speaker 02: We made that expressly clear by the motion to amend. [00:29:38] Speaker 02: The combinations that are proposed do not yield that invention.