[00:00:00] Speaker 01:
Our final case this morning is number 18-1412, Transport Technologies LLC versus LA County Metro.

[00:00:38] Speaker 01:
Okay, Mr. Weinberg.

[00:00:59] Speaker 04:
Thank you, Your Honors.

[00:01:01] Speaker 04:
Good morning.

[00:01:01] Speaker 04:
Happy New Year.

[00:01:03] Speaker 04:
May it please the Court

[00:01:04] Speaker 04:
We are here today on an appeal from a decision from the Patent Office in validating or finding unpatentable the 101 patent.

[00:01:16] Speaker 04:
And what we have here to borrow, I was inspired by the puns related to the doorknob, so what I would do is say we're going to drive at two issues that we have with respect to the decision of the board.

[00:01:30] Speaker 04:
The first is in the final decision,

[00:01:34] Speaker 04:
And this is at Appendix 24.

[00:01:36] Speaker 04:
The board found that the code that uniquely identifies the registrant with the program administrator is not disclosed in the HACCET 183 prior art reference.

[00:01:48] Speaker 04:
And that's the sole reference that was the subject of the ground for the independent claims 1 and 6.

[00:01:56] Speaker 01:
And not only... But HACCET 183 does disclose using a VIN number.

[00:02:03] Speaker 04:
It does, Your Honor, it discloses a VIN number.

[00:02:06] Speaker 04:
We don't take issue with that.

[00:02:08] Speaker 04:
What we take issue with, with respect to the VIN number, is both the construction of program administrator, which we think is beyond the broadest reasonable interpretation of program administrator, because that gives an opportunity, the broad construction, created the opportunity for the board to point to the VIN number, which is not a

[00:02:34] Speaker 04:
an identifier with respect to a program administrator of the program claimed in the 101 patent.

[00:02:42] Speaker 04:
And so both the broad construction of that as well as the standard that was applied for the obviousness analysis, we think both of those are wrong.

[00:02:54] Speaker 04:
And what the board found is it's not disclosed in the 183, the HACET 183 prior reference.

[00:03:02] Speaker 04:
And it further said, and this is appendix 24.

[00:03:04] Speaker 01:
But the claim still works under the board's interpretation of the claim language, doesn't it?

[00:03:10] Speaker 04:
So we don't think so.

[00:03:12] Speaker 04:
We think under the broader construction, there's still a problem.

[00:03:15] Speaker 04:
And that problem lies in the fact that the board found the code that identifies the union.

[00:03:21] Speaker 00:
Let me interrupt you for just a second.

[00:03:24] Speaker 00:
Are you talking about the broad construction of registrant or the broad construction of program administrator?

[00:03:30] Speaker 00:
on program administrator?

[00:03:33] Speaker 04:
The way I view it is both are overly broad.

[00:03:36] Speaker 04:
I understand, but what are you talking about now?

[00:03:37] Speaker 04:
I think the more important one is program administrator.

[00:03:40] Speaker 04:
And the reason why I say that is because the program of the 101 patent is a program for making claims as to vehicle occupancy.

[00:03:51] Speaker 04:
The board construed it as any old program.

[00:03:54] Speaker 04:
And the board construed registrant as any registrant.

[00:03:57] Speaker 04:
In some ways, I think that's fine.

[00:03:59] Speaker 04:
any registrant is okay, so long as program administrators properly construe with the limitation that it's a program for making vehicle occupancy claims.

[00:04:10] Speaker 04:
The idea that the VIN number discloses the code that identifies the registrant is off because a licensing authority, which is what the board points to, albeit a licensing authority that's not disclosed, and that's part of the problem with respect to the obviousness analysis.

[00:04:28] Speaker 04:
But the licensing authority is not a program for making or handling claims of vehicle occupancy.

[00:04:35] Speaker 00:
But a VIN number that is transmitted is a code that associates the vehicle with a registrant, right?

[00:04:46] Speaker 04:
It is a code that associates a vehicle with one who registers a vehicle.

[00:04:51] Speaker 04:
In fact, it uniquely identifies the vehicle and the registrant.

[00:04:56] Speaker 04:
It does, it can be used to uniquely identify the vehicle and the registrant.

[00:05:00] Speaker 04:
We agree with that.

[00:05:01] Speaker 00:
So that does seem to satisfy the portion of the claim that deals with the identifier.

[00:05:09] Speaker 04:
And Judge Bryson, I agree with you.

[00:05:10] Speaker 04:
That's why I say that the key one is program administrator.

[00:05:13] Speaker 04:
All right.

[00:05:14] Speaker 03:
And the program administrator... Could I just cut to the chase and explain my understanding of what the board is doing here?

[00:05:22] Speaker 03:
The board looked at Passive 183 and saw that

[00:05:26] Speaker 03:
It was a system created for monitoring a lot of different things that are going on in the middle of traffic, including the number of occupants that are located in a given vehicle.

[00:05:39] Speaker 03:
And each vehicle has a transponder, and the transponder is sending out an identifying signal, identifying that particular car, and then providing all kinds of information about that car.

[00:05:51] Speaker 03:
The type of car it is could be a truck, number of people in the car,

[00:05:54] Speaker 03:
and the identity of the car itself.

[00:05:58] Speaker 03:
And then Hassett goes on and says, all of this can be used in electronic tolling system.

[00:06:04] Speaker 03:
So the board was using all of that and saying, okay, we have an electronic tolling system.

[00:06:09] Speaker 03:
It was known.

[00:06:10] Speaker 03:
It was known to monitor all kinds of information, including the number of vehicles that are occupying in a given car.

[00:06:17] Speaker 03:
And we know from all these background references that electronic tolling systems

[00:06:22] Speaker 03:
are something that are like a program that people have to register to become a member of, and so therefore you necessarily are going to have an administrator administrating all of this, and you're going to be sending your information to the program administrator with some kind of identifying signal that identifies you in particular, and given that state of the background art, given what we know that HACCP tells us, it's obvious,

[00:06:50] Speaker 03:
that it renders all of these claims obvious.

[00:06:53] Speaker 03:
So where in all of that do things run afoul?

[00:06:58] Speaker 04:
So Judge Chen, the error we find in all of that, and I agree that accurately describes what the board found, there are two parts of that that you said that we take fault with.

[00:07:09] Speaker 04:
The first is what the board found was the identifier of the individual, of the driver.

[00:07:14] Speaker 04:
The vehicle driver is the individual identified in the HACET 183 reference,

[00:07:20] Speaker 04:
that is the registrant in the 101 patent.

[00:07:25] Speaker 04:
That driver is not, that identifier of that driver is not disclosed expressly or inherently.

[00:07:32] Speaker 04:
That's in Appendix 24.

[00:07:34] Speaker 03:
And the way that the board dealt with that issue is to say Appendix 22 and 27 is, it's in- Before you go further, is it your understanding that the claim term registrant is referring to the driver of the car?

[00:07:49] Speaker 04:
The registrant is not necessarily the driver.

[00:07:53] Speaker 04:
The registrant is the one who registers with the program.

[00:07:56] Speaker 04:
The program is one that allows the registrant.

[00:08:00] Speaker 04:
In claim six, it has to be the registrant that makes the claims as the vehicle occupancy.

[00:08:05] Speaker 04:
That limitation is not clear in claim one.

[00:08:09] Speaker 04:
But the registrant is that individual who's registered with this program.

[00:08:15] Speaker 04:
And this program must allow at minimum

[00:08:19] Speaker 04:
claims as to vehicle occupancy.

[00:08:22] Speaker 03:
And I guess what I'm wondering is that even if we accept your claim constructions, why isn't the board's theory of asset 183 in light of the state of the background art with how electronic tolling systems operate good enough?

[00:08:42] Speaker 04:
So the problem there, even if you accept our constructions, and I hope you do, is that the disclosed

[00:08:49] Speaker 04:
program administrators in the in the HACET 183.

[00:08:53] Speaker 04:
There are two of them and what the board said about that is that they're implicitly disclosed.

[00:08:58] Speaker 04:
They're not disclosed expressly or inherently.

[00:09:00] Speaker 04:
They're implicitly disclosed and we think that's a problem with respect to single reference obviousness because implicitly disclosed is not one of the types of disclosure that the case law provides for.

[00:09:12] Speaker 01:
I must say I'm having difficulty following this.

[00:09:17] Speaker 01:
If someone

[00:09:20] Speaker 01:
registers a motor vehicle with a VIN number and then sends that VIN number together with the number of people in the vehicle through a transponder to some, let's say, program administrator.

[00:09:39] Speaker 01:
That would be within the claims, right?

[00:09:43] Speaker 04:
It would be if the program administrator under our construction, as Judge Chen suggested

[00:09:49] Speaker 04:
could adopt, if the program that the program administrator administers is one that allows claims as to vehicle occupancy to be made.

[00:10:01] Speaker 04:
And what is identified by the board as being implicitly disclosed is a licensing authority, which is not a program, knowing the art or common sense.

[00:10:14] Speaker 01:
But there was testimony before the board that it was common to use VIN numbers

[00:10:18] Speaker 01:
with respect to sending tolling information.

[00:10:23] Speaker 01:
I mean, EPAS, for example.

[00:10:26] Speaker 04:
Very common, right?

[00:10:28] Speaker 04:
That's correct, but the reason why the HACCP 183 reference, which doesn't disclose paid tolling, but rather describes collecting information for setting tolls.

[00:10:40] Speaker 04:
That aside, the HACCP 183 reference is used because it's the only one

[00:10:45] Speaker 04:
where there's this identification of vehicle occupancy.

[00:10:49] Speaker 04:
The other references in the background art, they don't describe or disclose making claims as to vehicle occupancy.

[00:10:57] Speaker 01:
I think there's a huge difference between sending information about vehicle occupancy to a toll authority and to a authority which is monitoring hub lanes.

[00:11:09] Speaker 04:
I'm not suggesting that there is a big difference, but what I'm suggesting is that the disclosure in HACCP 183 doesn't do it on its own, and that the background art that's described as involving tolling, that is an element that's being added under a doctrine of implicit disclosure, which is not a doctrine that I have been able to find in the law.

[00:11:36] Speaker 04:
And I think what the board was attempting to do

[00:11:39] Speaker 04:
is use the ordinary single reference obviousness standard described in the Arandi v. Apple case, the 2016 decision from this court that says there's a motivation to modify the prior reference.

[00:11:53] Speaker 04:
But that's not what the board did.

[00:11:55] Speaker 04:
And that's not what the appellee, the petitioner, argued below.

[00:12:02] Speaker 00:
You went back to the beginning of your argument after Judge Chin laid out

[00:12:08] Speaker 00:
position that the board had taken with respect to this case.

[00:12:11] Speaker 00:
You said there were two problems with it.

[00:12:12] Speaker 00:
We've been discussing one, unless the second one has been part of your discussion.

[00:12:17] Speaker 04:
It's been revealed, but perhaps not so clearly.

[00:12:20] Speaker 00:
Why don't you tell us what it is, and then we can see.

[00:12:22] Speaker 04:
Implicit, right.

[00:12:23] Speaker 04:
Exactly.

[00:12:24] Speaker 04:
It's implicitly been revealed.

[00:12:26] Speaker 04:
So go ahead.

[00:12:26] Speaker 04:
I want to hear your second point.

[00:12:28] Speaker 04:
The problem is that in a single reference obviousness case like this one.

[00:12:31] Speaker 04:
OK, so this is the second.

[00:12:33] Speaker 00:
This is the second.

[00:12:33] Speaker 00:
It's the implicit.

[00:12:34] Speaker 04:
We have the claim construction issue and then the implicit disclosure.

[00:12:37] Speaker 04:
Thank you.

[00:12:37] Speaker 04:
The board found that it's not expressly or inherently disclosed.

[00:12:42] Speaker 04:
Instead, it said it's implicitly disclosed.

[00:12:45] Speaker 04:
I am aware of no case law that supports an implicit disclosure.

[00:12:48] Speaker 03:
Well, what if we just translated that to mean, in light of the well-known state of the prior art with how electronic tolling systems work, it'd be obvious to make whatever adjustments that need to be made to the ACID 183 system

[00:13:05] Speaker 03:
which we know is for determining tolls, among other things, to make sure that we have a program administrator that the cars are registered with through the identifying signal that HACCP 183 itself describes.

[00:13:20] Speaker 04:
So what we would need then is evidence of a motivation to make that modification to HACCP 183.

[00:13:27] Speaker 04:
And we would frankly need analysis from the board finding sufficient evidence on appeal.

[00:13:35] Speaker 04:
to make that modification to HACCP 183.

[00:13:37] Speaker 04:
HACCP 183 doesn't have that disclosure.

[00:13:39] Speaker 04:
Now, I think, Judge Chen, you're right.

[00:13:42] Speaker 04:
That implicit disclosure is code for it's in the background art.

[00:13:47] Speaker 04:
But Arandi v. Apple makes clear that in the background art isn't good enough to supply the missing limitation on its own.

[00:13:55] Speaker 04:
There must be a motivation there to add it to the HACCP 183 reference, or any reference for that matter.

[00:14:02] Speaker 03:
I guess, what if it's obvious

[00:14:05] Speaker 03:
to use HACET in the context of an electronic tolling system for highway usage.

[00:14:12] Speaker 03:
And then once you arrive at that, what comes with that is necessarily a car registration system with the electronic tolling system.

[00:14:23] Speaker 03:
And an electronic tolling system necessarily has a program administrator.

[00:14:28] Speaker 03:
So that's where the, I guess, gap, if there's a gap, is.

[00:14:34] Speaker 03:
that it would be obvious to use HACET 183 in the context of an electronic tolling system, given that it talks, itself talks about using all of the information collected for determining tolls on a highway for a given car.

[00:14:49] Speaker 04:
That's right.

[00:14:50] Speaker 04:
And it does talk about setting tolls.

[00:14:55] Speaker 04:
That's in the HACET 183 reference.

[00:14:58] Speaker 04:
I don't know.

[00:14:58] Speaker 04:
The disclosure of determining tolls is ambiguous at best because there's a specific reference to setting tolls, gathering the information to set tolls.

[00:15:07] Speaker 04:
I'm not sure that it's fair to describe HACCP 183 as an electronic tolling system.

[00:15:13] Speaker 04:
Its title is different from that.

[00:15:16] Speaker 04:
There's the HACCP 389, which is

[00:15:19] Speaker 04:
another HACCP.

[00:15:21] Speaker 03:
Which is incorporated by reference in the HACCP 183.

[00:15:23] Speaker 04:
It is and the board instituted on two of the dependent claims a combination of the two and it found that one describes an electronic tolling system and then it describes HACCP as being one that gathers information for the management of traffic networks.

[00:15:40] Speaker 04:
So I think the board has stretched to find that the HACCP 183 reference is itself an electronic tolling system.

[00:15:49] Speaker 04:
And that's why I think there's a disconnect between just saying it would have been obvious to add this identifier for a registrant based on the VIN or the transponder identifier, because it's not disclosed in the HACET 183 reference.

[00:16:11] Speaker 04:
And HACET, as we read it and as I think the board confirms by having to rely on the HACET 389,

[00:16:18] Speaker 04:
for the combinations necessary to address the two dependent claims that HACCP 183 is not electronic tolling reference or patent, rather it is a traffic monitoring patent.

[00:16:35] Speaker 04:
Okay.

[00:16:35] Speaker 04:
And with that, we yield my turn.

[00:16:38] Speaker 01:
We'll give you two minutes for a bottle.

[00:16:41] Speaker 01:
Mr. Pouchter.

[00:16:47] Speaker 02:
May it please the court.

[00:16:52] Speaker 02:
The board correctly construed the claims and the board correctly determined with substantial evidence that the claims of the 101 patent, the asserted claims of the 101 patent, were invalid as obvious over Hassett 183 or in the case of dependent claims 5 and 10 over the combination of Hassett 183 and Hassett 389.

[00:17:13] Speaker 02:
The board also correctly determined that

[00:17:17] Speaker 02:
the registrant was disclosed and we would contend that the registrant either as construed as the board did or as the patent owner would request is still disclosed and has it 183.

[00:17:32] Speaker 02:
We would also contend that the program administrator is also disclosed and has it 103 either with the board's construction or with the proposed construction by the patent owner.

[00:17:45] Speaker 02:
That is because a person of ordinary skill in the art would have understood that a registrant with the knowledge of how automatic vehicle identification systems work would have been the person or one of the persons that had the transponder that went to the program that was used to receive the information as to the number of occupants and the vehicle identification information.

[00:18:06] Speaker 03:
So is this a 102 or a 103?

[00:18:09] Speaker 03:
As I understand it,

[00:18:10] Speaker 03:
It was set up as a 103 and the board, in fact, that institution rejected a 102 theory.

[00:18:16] Speaker 03:
What I'm hearing from you is that the board converted the 103 to a 102.

[00:18:23] Speaker 03:
Is that right?

[00:18:24] Speaker 02:
No, Your Honor, the board determined... And where's the 103 aspect come in?

[00:18:29] Speaker 02:
We believe incorrectly, but because we originally advocated that a little 102 that was anticipated as well as 103.

[00:18:36] Speaker 03:
Regardless of what you think, I'm trying to understand what the board thinks.

[00:18:41] Speaker 03:
What does the board think?

[00:18:42] Speaker 03:
Is this a 103 in the board's view or 102 in the board's view?

[00:18:45] Speaker 02:
The board determined that it is a 103, Your Honor.

[00:18:47] Speaker 02:
The board determined it is a 103 because this will be a case that like one of the cases cited was within a hair's breadth of anticipation.

[00:18:54] Speaker 02:
in the sense that it didn't necessarily disclose those features.

[00:18:59] Speaker 02:
While a person of ordinary skill in the art would have understood, based on the knowledge of the background art, that those features were present, the law of anticipation requires that it necessarily be disclosed.

[00:19:10] Speaker 02:
And they recognized that it was possible that they may not be necessarily disclosed, and therefore an anticipation finding was inappropriate, and that is why they made an obviousness finding.

[00:19:24] Speaker 03:
Okay, what part is not necessarily disclosed?

[00:19:29] Speaker 02:
The board's determination as to what was not necessarily disclosed was, I believe, Your Honor, that the program administrator as such was not necessarily disclosed, nor necessarily a registrant with the program administrator.

[00:19:43] Speaker 02:
We believe that, in fact, the registrant was disclosed, both with VIN and also because the person of ordinary skill in the art would understand

[00:19:51] Speaker 02:
that if you have an automatic.

[00:19:53] Speaker 03:
So you're saying that the board found that those two pieces, program administrator and registrant, weren't necessarily disclosed.

[00:20:01] Speaker 02:
That is correct.

[00:20:01] Speaker 03:
Nevertheless, the board used language that said those two limitations are disclosed implicitly.

[00:20:08] Speaker 02:
Yes, Your Honor.

[00:20:09] Speaker 02:
That a person's skill in the art would have understood them to be disclosed.

[00:20:13] Speaker 03:
So what am I supposed to, how am I supposed to translate what

[00:20:18] Speaker 03:
Implicit disclosure means?

[00:20:19] Speaker 03:
It doesn't mean necessarily disclosed?

[00:20:22] Speaker 02:
No, Your Honor, it does not mean necessarily disclosed.

[00:20:25] Speaker 02:
It means that there's a possibility that some other system might exist, so therefore the requirements of anticipation that necessarily be disclosed are not necessarily met, but nevertheless it is probable, and in fact under the substantial evidence standard, is appropriate to determine that they would have been found in Passive 183

[00:20:46] Speaker 02:
as understood by a person of ordinary skill in the art at the time of the filing of the patent.

[00:20:53] Speaker 03:
So I guess I'm a little bit lost.

[00:20:56] Speaker 03:
Is there some need to make a finding that it would be somehow obvious to make the adjustment to whatever is in asset 103 so that we necessarily arrive at the claimed invention?

[00:21:12] Speaker 02:
Asset 183 does not need to be modified.

[00:21:16] Speaker 02:
to include that feature.

[00:21:17] Speaker 02:
What it does not do is it does not explicitly say that this is a program.

[00:21:22] Speaker 02:
What it does say is that we have transponders, we have a network computer, we have a system of transceivers, and we have information that would be communicated from those transponders to those receivers and then sent back to a network computer system as shown in Figure 1.

[00:21:36] Speaker 02:
And that information can be used for

[00:21:39] Speaker 02:
tolling purposes, for traffic management purposes, or various other purposes.

[00:21:42] Speaker 02:
In essence, that that's the program.

[00:21:44] Speaker 02:
There is a program that exists.

[00:21:46] Speaker 02:
And in order to have a transponder with an identification number, as is known in the art when you're using automatic vehicle identification systems, there would have been registration.

[00:21:56] Speaker 02:
And that was demonstrated by the testimony of Mr. Andrews.

[00:22:02] Speaker 01:
Are these claims limited to

[00:22:05] Speaker 01:
monitoring or managing a hub system or would it include a tolling system whereby the tolls were increased or decreased depending on the number of vehicle occupants?

[00:22:20] Speaker 02:
The claims don't really address what is done with the data at all, Your Honor.

[00:22:25] Speaker 02:
The claims simply say that the data is collected.

[00:22:28] Speaker 02:
They don't even necessarily require that the data be received.

[00:22:31] Speaker 02:
If you look at claim one, it just says that it has to be transmitted.

[00:22:35] Speaker 02:
There's no indication as to how the program will, well, only claim one has a program administrator.

[00:22:42] Speaker 02:
Claim six.

[00:22:43] Speaker 02:
Claim six requires it to be received, Your Honor.

[00:22:45] Speaker 02:
Yes, but claim one does not.

[00:22:47] Speaker 01:
But none of the claims is limited to a hub system.

[00:22:50] Speaker 02:
No, Your Honor, they don't say at all what you have to do with the data or what you're going to do with the information.

[00:22:57] Speaker 02:
Including tolling.

[00:22:59] Speaker 02:
Including tolling, Your Honor.

[00:23:00] Speaker 02:
That's correct.

[00:23:02] Speaker 03:
What about claim six, which talks about the registrant transmitting the number of occupants in the vehicle?

[00:23:15] Speaker 03:
Claim one is somewhat ambiguous as to whether a particular person is transmitting that vehicle occupancy number.

[00:23:28] Speaker 03:
Claim six seems to suggest being done by

[00:23:32] Speaker 03:
the registrant.

[00:23:35] Speaker 03:
How do you understand that?

[00:23:37] Speaker 03:
Do you understand that to be, we should think of the registrant as someone who is identified by some unique identifying signal or, you know, and so therefore the car is the registrant or the

[00:24:00] Speaker 03:
The registrant is, I guess, the owner of the car or the member of the program that cares about this car being part of this system, but who is actually in the car and turning the dials on to transmit the information doesn't really matter.

[00:24:23] Speaker 02:
Well, based on the specification, Your Honor, it doesn't really matter.

[00:24:25] Speaker 02:
The specification very clearly says that a claim can be sent by the occupant.

[00:24:29] Speaker 02:
It's in specifically.

[00:24:43] Speaker 01:
Does the specification contemplate that the VIN number, for example, would be entered by the occupant or is that done automatically by the vehicle?

[00:24:54] Speaker 02:
Well, the specification of HACCP 183 contemplates that the VIN number, like the number of occupants, could be part of the information that was entered in using the keypad.

[00:25:06] Speaker 02:
The specification of the 101 patent does not discuss VIN numbers.

[00:25:16] Speaker 00:
It doesn't suggest that the specification of HACCP doesn't suggest that you'd have to enter the VIN number every time you got in the car.

[00:25:24] Speaker 00:
You do it once and you're done.

[00:25:26] Speaker 02:
It does not, Your Honor.

[00:25:27] Speaker 02:
In fact, it specifically discloses a memory in the transponder.

[00:25:34] Speaker 02:
In the specification of the 101 patent, it discusses that a device would also allow the user to designate a claim passenger occupancy level.

[00:25:43] Speaker 02:
That would be at column one, line 64 to 65.

[00:25:47] Speaker 02:
It does not require that the registrant

[00:25:51] Speaker 02:
be the person who actually enters the occupancy level in the specification.

[00:25:55] Speaker 03:
And then also in the 101... But the claim six says buy a registrant, so that's the part where I'm trying to think through what does it mean to be a registrant.

[00:26:07] Speaker 02:
In the context of claim six, Your Honor, the registrant would be either the person under the construction by the board who registered the vehicle or

[00:26:20] Speaker 02:
the person who registered the transponder with the system.

[00:26:23] Speaker 00:
But it could, as a practical matter, it would seem they could also be an agent of the registrant, somebody who is driving the car, who hasn't done neither of the other two.

[00:26:34] Speaker 02:
That's correct, Your Honor, and that's what disclosed in the specification of the 101 patent, that it doesn't need to be the actual registrant of the transponder.

[00:26:41] Speaker 03:
A person that's doing it, perhaps, on behalf of the registrant.

[00:26:43] Speaker 02:
Yes, Your Honor.

[00:26:48] Speaker 02:
Okay, anything further?

[00:26:49] Speaker 02:
If there are no further questions, thank you very much.

[00:26:52] Speaker 04:
I'd like to pick up where Judge Chen I think left off, which is that Claim 6 doesn't leave this sort of ambiguity as to who makes the claim as to vehicle occupancy.

[00:27:13] Speaker 04:
It does say, consistent with the preamble of both independent claims, that it's by the registrant

[00:27:18] Speaker 04:
It's not leaving, at least in view of the construction of registrant adopted by the board or even the one that we've advocated, that it is an agent of the registrant.

[00:27:32] Speaker 04:
The registrant has been construed as a person who registers.

[00:27:36] Speaker 03:
Just from the program's perspective, the program administrator's perspective, when it receives this information about the number of documents in the vehicle, the program administrator is seeing a claim by the

[00:27:49] Speaker 03:
registrant, right?

[00:27:51] Speaker 04:
That's correct.

[00:27:52] Speaker 03:
And it is totally agnostic as to who is actually sitting in the car entering in the number of occupants to be transmitted to the program administrator.

[00:28:04] Speaker 04:
That's right.

[00:28:04] Speaker 03:
So in that sense, the claim is coming from the registrant, from the program administrator's point of view.

[00:28:11] Speaker 04:
It is coming from the registrant.

[00:28:12] Speaker 04:
It's a claim made by the registrant.

[00:28:17] Speaker 04:
from the perspective of the 101 patent that need not be the driver.

[00:28:23] Speaker 04:
What the board said though, and this is part of its Inherency Light analysis, it says the driver, which is the only disclosed individual in the HACCP patent that could make the claim as to vehicle occupancy, it said the driver is the registrant and

[00:28:46] Speaker 04:
Though it's not necessarily always the case, which is why the board couldn't do inherency, it's not necessarily always the case that the driver is the registered owner.

[00:28:56] Speaker 04:
It is sometimes the case that the driver will be the registered owner.

[00:29:00] Speaker 04:
Now when I drive, that is the case.

[00:29:03] Speaker 04:
But when my father borrows my car to take my kids somewhere, he's the driver and he's not the registered owner.

[00:29:11] Speaker 04:
So that's why inherency doesn't work.

[00:29:13] Speaker 04:
It's not necessarily always the case.

[00:29:15] Speaker 00:
So what you're saying, it seems to me, and correct me if this is wrong, is that a claim such as claim six, perhaps as a result of somewhat sloppy drafting, doesn't cover as much real estate as it could have, or perhaps should have, in light of essentially the object of the invention.

[00:29:37] Speaker 00:
So if someone were careful to make sure that the person who actually registered either with the

[00:29:44] Speaker 00:
the DMV or with the program was not driving and was not the one that was entering the number of occupants, then they'd avoid infringement.

[00:29:51] Speaker 00:
Lucky them.

[00:29:52] Speaker 00:
But you're just saying that this is a narrower claim than it could have been written.

[00:29:57] Speaker 00:
But nonetheless, it covers ground, it seems to me, that would be covered by the two HACCP patents, does it not?

[00:30:05] Speaker 00:
Or at least 183.

[00:30:07] Speaker 04:
I don't think it does because, again, depending on how you're construing the registrant, if it's one who registers with a program that permits or allows for claims of vehicle occupancy, your reliance on a VIN number is inadequate because that's a registration with a licensing authority, and the licensing authority is not one that allows claims as to vehicle occupancy.

[00:30:32] Speaker 03:
So what if the understanding of the registrant

[00:30:35] Speaker 03:
person who enrolls in a system that is identified by the unique code transmitted by the transponder in the vehicle?

[00:30:53] Speaker 04:
That code, if the code for the transponder is unique to the registrant, then it's a registrant code.

[00:31:05] Speaker 04:
whether we call it a transponder code or a registrant code, if it's the only one and it identifies the registrant, it would be an identifier of the registrant and uniquely so.

[00:31:15] Speaker 03:
It finds the registrant by the code issued by the transponder.

[00:31:21] Speaker 03:
Well, issued by the program or issued by the... By the transponder in the car that communicates all the information about the number of occupants in the car and anything else to the program administrator.

[00:31:35] Speaker 04:
If you have a program administrator that administers a program for making occupancy claims and you have a unique identifier that is of, associated with a registrant, a single registrant, then you have what's required by claim one and claim six.

[00:31:58] Speaker 01:
Okay.

[00:31:58] Speaker 01:
Thank you, Mr. Lembert.

[00:31:58] Speaker 01:
Thank both counsel and cases submitted.

[00:32:00] Speaker 01:
That concludes our session for this morning.

[00:32:12] Speaker ?:
The honor record is adjourned until tomorrow morning at 10.