[00:00:00] Speaker 02:
Next case is Innovative Global Systems versus Motive Technologies, 2021-22-89.

[00:00:08] Speaker 02:
Mr. Redwoods, we're ready when you are.

[00:00:14] Speaker 03:
Thank you, Your Honor.

[00:00:15] Speaker 03:
May it please the court?

[00:00:16] Speaker 03:
The board committed two errors in its final written decision that we want to talk about today.

[00:00:20] Speaker 03:
First, the board committed a reversible error when it found that Scheme discloses the claim compliance signal found in element

[00:00:28] Speaker 03:
claim elements 1 and 14D of the 384 patent.

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Second, the board also erred when it found that a skilled artisan would have been motivated to combine Skeen and Warkinton to render the claim invention obvious.

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I want to turn first to the discussion of the reversible error, that is, that Skeen discloses the claim compliance signal

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Skeen's indicator lights capable only of signaling the presence of communication between a recorder or the skeen device and the engine data bus.

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That's fundamentally different from the compliance signal disclosed in the 384 patent in two ways.

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Most fundamentally, it does not indicate that the device is recording the data needed to generate a compliant hours of service log or to check a driver's compliance with the hours of service regulations.

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And perhaps more importantly, it does not indicate that the device is functioning to record all of the specific data that's needed to generate a compliant hours of service log.

[00:01:28] Speaker 02:
It's not a 102 reference.

[00:01:30] Speaker 02:
That's correct.

[00:01:31] Speaker 02:
We're talking about obviousness here.

[00:01:35] Speaker 03:
That's correct.

[00:01:36] Speaker 03:
It's just a 102 reference.

[00:01:37] Speaker 03:
I apologize.

[00:01:39] Speaker 01:
But SCENE itself, its characterization of the indicator by this is pretty broad.

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It says you can perform any number of selected functions.

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Why isn't that enough to indicate that SCENE is not limited to a very narrow set of functions?

[00:01:58] Speaker 03:
So SCENE itself does say that, but the evidence presented to the board and the way that the case was argued by Keep Trucking or by Motive Technologies in its petition

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limits Scheme and if you look at page 137 through 139 of the appendix what you see is that the case is framed such that Scheme's ability to indicate the presence of communication is the sole reference relied upon to generate the claim compliance signal.

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So it's easy to understand, it's easiest I think to understand this problem using a hypothetical.

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So

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If you assume that there's a data bus, there's a recorder attached to a data bus that's recording 10 distinct elements that are needed to generate a compliant hours of service lock, among them would be vehicle speed.

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If vehicle speed is no longer being recorded, then the compliance signal is going to indicate to the driver that he is out of compliance, that the recorder is no longer functioning to record all of the data needed to generate a compliant hours of service lock.

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Skeen, on the other hand, is going to do something different.

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It's not going to tell the driver anything, because the communication is still there.

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There's still communication and data being transmitted across the data bus.

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You can take that a step further, and if the recorder stops recording everything but vehicle speak, in that instance, the same result would ensue where

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Skeen is going to indicate there's the presence of communication between the data bus and the reporter, but the compliance signal is going to signal to the driver that he's out of compliance with transportation regulations.

[00:03:46] Speaker 01:
It just seems to me, and again, picking up on Judge Lurie's allusion to anticipation, it seems to me that's an argument that might well have legs if this were purely an anticipation case.

[00:03:58] Speaker 01:
Scheme stands for, it seems to me, more than just the specific, or at least for purpose of obviousness, it can be understood to stand for something other than the specific utility that is called out in the Scheme embodiments.

[00:04:18] Speaker 01:
I'm having a hard time seeing why one could not say, OK, given Scheme saying that you've got an indicator light that can be used for multiple purposes, that doesn't lead one

[00:04:28] Speaker 01:
down the path of saying, well, we can use it to indicate the recording is going on.

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That's one of the purposes that it could serve.

[00:04:35] Speaker 01:
That doesn't seem to me to be a paradigm breaking type of change.

[00:04:41] Speaker 03:
Again, your honor, I think it's because of the way that motive presented this in its petition.

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It focused exclusively on the communicative aspect of Scheme.

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It never cited that second clause, Scheme's ability to do other functions.

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There's no evidence in the record, there's no testimony from Motive's expert, Mr. Andrews, that would indicate what those other selected functions could be.

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If the court would look at page 270 of the appendix, paragraph 149 of Mr. Andrews' declaration, that's the exclusive source of the board's finding that Scheme discloses the claim compliance signal.

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And there, the sole focus of Mr. Andrew's testimony, of his expert opinion, is that communication means recording.

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There are two sentences actually in paragraph 149, the first we don't take issue with.

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And that is that if there is no communication, there is no recording.

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The way that we understand this, communication is the basic function, and then you have the issue of recording layered on top of that, and then recording compliance data, which is what the 384 patent does at the very top of the pyramid, so to speak.

[00:05:59] Speaker 03:
So, SCENE is indicating communication between the data bus of the vehicle and

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the recording device, but the 384's compliance signal is indicating that the device is recording every piece of data that's needed to comply with a regulation, whatever that might be.

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To use Keep Trucking's reference, it would be the transportation regulations, which include things like vehicle speed and time driving and time idling.

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And so, again, if vehicle speed stops being recorded,

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But everything else is being recorded, or even more, everything else is being communicated across the data bus.

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Even if there's a recorder malfunction, Scheme is going to indicate the presence of communication, whereas the 384 pattern is going to indicate that the recorder has stopped working for a specific purpose.

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Again, going back to Mr. Andrew's opinion, in the second sentence of paragraph 149, that's kind of the exclusive basis for the board's erroneous conflation of recording and communication.

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And that is, if the light is on, I would understand it to be communicating, and therefore recording.

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That's not substantial evidence to support the board's decision.

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He fails to connect that to anything in his experience.

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He fails to connect it to anything in the scheme patent or anything else in the record to indicate that communication and reporting are the same thing.

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So Mr. Andrews has just an ipsa dixit opinion that under this court's decision in TQ Delta is not sufficient to constitute substantial evidence of record and therefore cannot support the board's final written decision.

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I want to turn to the second issue, and that is the motivation to combine issue.

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The board applied this general motivation to combine analysis.

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It concluded that because Washington specifically referenced the desirability of a connection with the vehicle's data bus, that scheme would, of course, be a desirable combination.

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But in so doing, the board failed to

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consider the specific proposed combination and instead relied on a more general theory of a motivation to combine.

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Patent owner's undisputed testimony before the board from its experts, Mr. Brown and Mr. Smith, is that this would not have been a desirable combination.

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And that is a critical piece of the motivation to combine analysis.

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And so the board's failure to consider

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Patent owner's evidence of a motivation to combine or lack thereof, given the lack of desirability of the proposed combination, is sufficient grounds to remand the board's final written decision for additional findings of fact, at a minimum.

[00:09:02] Speaker 03:
The court has no further questions.

[00:09:04] Speaker 02:
We will save your time, Mr. Edwards and Mr. Lindenbaum.

[00:09:10] Speaker 00:
Good morning, Your Honors.

[00:09:11] Speaker 00:
My name is David Lindenbaum for Appellee Motive Technologies Inc., formerly known as Keep Truckin' Inc.

[00:09:17] Speaker 00:
May it please the court?

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This appeal concerns two findings of the board, both of which are supported by substantial evidence.

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First is the board's finding that the light on Skeen's recorder indicates the recorder is functioning to record.

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Now, the issue is not whether the recorder is recording.

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The issue is whether or not the light indicates the recorder is functioning to record.

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It's undisputed that Scheme's device is a recorder.

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Appellants briefed at 3, 6, and 14 to refer to the device as a recorder or a recording device.

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There's no dispute that the indicator light at least indicates the presence of communication.

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In the combination proposed by Motive, the data recorded needs to be the data that would be transmitted to Workington to create the hours of service log.

[00:10:09] Speaker 00:
These facts, in view of Motive's expert opinion, show a person with skill in the art would understand that Scheme's light indicates whether the recorder is functioning to record.

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IGS offered no rebuttal expert opinion on this issue, and so the PTAB properly found

[00:10:27] Speaker 00:
that there is substantial evidence to find that Scheme's light indicates that the recorder is functioning to record.

[00:10:34] Speaker 00:
Now, on appeal, IGS seeks a new construction for the term functioning to record as recording, as you just heard opposing counsel state.

[00:10:42] Speaker 00:
But that construction is not properly before you.

[00:10:45] Speaker 00:
Neither party asked the board to construe the term functioning to record.

[00:10:49] Speaker 00:
IGS's response to the petition in the IPR didn't even address really that term at all.

[00:10:55] Speaker 00:
They addressed whether or not the data was the type of data that would be recorded as needed for an hours of service log.

[00:11:03] Speaker 00:
The board did not construe the term functioning to record, so there was no construction to appeal.

[00:11:09] Speaker 00:
And IGS doesn't even propose a construction that's appeal brief.

[00:11:13] Speaker 00:
We see for the first time ever in their reply a new proposed construction of function to record as recording complete with new extrinsic evidence, which.

[00:11:23] Speaker 01:
So your view of what functioning to record means, if it doesn't mean recording, is what?

[00:11:32] Speaker 01:
recording function of the machine.

[00:11:37] Speaker 01:
has not been disabled or broken, even though it may not be recording at the moment.

[00:11:43] Speaker 01:
Is that a fair characterization of what your position on functioning to record is?

[00:11:48] Speaker 00:
Almost, Sean.

[00:11:48] Speaker 00:
I'd like to offer maybe a different hypothetical than a pellet offered, which is that if you think of a cell phone and you see those signal bars on your phone, it indicates a number of things.

[00:11:57] Speaker 00:
It indicates at least that the phone is on, that it's connected to the network, that it's communicating with the network, and that it's functioning to receive a call.

[00:12:06] Speaker 00:
And in that regard, skeen is very similar.

[00:12:08] Speaker 00:
The light indicates that the device is on, the recorder is on, that it's connected to the vehicle, that it's communicating within the vehicle, and that it's functioning to record the data that's communicated.

[00:12:20] Speaker 01:
Even though it may not at that moment be actually recording?

[00:12:24] Speaker 01:
Correct.

[00:12:24] Speaker 01:
The truck may be stopped at a rest stop or something, and the light is still on because as soon as the truck starts on, it starts recording.

[00:12:32] Speaker 00:
correct you are, and that a driver would feel confident that the data that's needed is being recorded because that light is on, and it's indicating that the recorder is functioning.

[00:12:44] Speaker 00:
I also know that... It's functional, I guess.

[00:12:47] Speaker 01:
It's not functioning in the sense that it is operating.

[00:12:51] Speaker 00:
Correct, Your Honor.

[00:12:53] Speaker 00:
And I also note that IDS's construction reads the term functioning out of the claim.

[00:12:58] Speaker 00:
They just want to replace function to record with just recording.

[00:13:01] Speaker 00:
In addition to their new evidence, which also is from the wrong time period, if you consider it, this new extrinsic evidence is from 2022 instead of 2005.

[00:13:12] Speaker 00:
And it relates to terms to function and function instead of functioning to do

[00:13:19] Speaker 00:
some verb.

[00:13:21] Speaker 00:
I also note that opposing counsel mentioned a number of times and they mentioned this issue of specific data that needs to be recorded, Your Honor.

[00:13:30] Speaker 00:
First of all, the board addressed this issue and found that in the combination that is proposed for the obvious analysis where you're combining Scheme with Warkington, you would

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you would necessarily have the reporter record the data that would be needed and requested by Warkington to create the hours of service log.

[00:13:52] Speaker 00:
And the board, and that was never contradicted by IGS, the board also noted that in Scheme itself, it talks about that the versatility of the technology allows the particular vehicle data monitor to be selected.

[00:14:09] Speaker 00:
Also, we note, Your Honor,

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In the claim language itself, it talks about the data is comprised.

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And so there is no set of data that's required by the claim, Your Honor.

[00:14:19] Speaker 00:
It says the vehicle data monitored comprises, and then there's a list of data.

[00:14:24] Speaker 00:
And then in the compliance signal limitation, it never says all the data needed or

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the data needed, it just says data needed for the hours of service log.

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And so there's nothing in the claim itself even, Your Honor, that requires any specific set of data to be recorded by the recorder.

[00:14:44] Speaker 00:
If no other questions about the first issue, Your Honor, I'd like to move on to the second issue about motivation to combine, which is also supported by substantial evidence.

[00:14:54] Speaker 00:
The board found motivation to combine here, Your Honor, is based on three independent undisputed grounds.

[00:15:01] Speaker 00:
The first was to improve the reliability of the generated hours of service log.

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In fact, a panel admits that could be a correct finding at page 29 of its reply.

[00:15:12] Speaker 00:
Another grounds for motivation combined was that a person of skill in the art would be motivated based on the teachings and suggestions and motivations in the art itself, Your Honor.

[00:15:21] Speaker 00:
Skeen has disclosed a recorder that records data from a vehicle and then transmits it to a portable device.

[00:15:28] Speaker 00:
Workington discloses a portable device that takes data from a vehicle to generate an hours of service log.

[00:15:34] Speaker 00:
So the two essentially go hand in glove.

[00:15:37] Speaker 00:
And finally,

[00:15:38] Speaker 00:
The board found that the combination of references is an arrangement of known elements performing the same functions as disclosed in the references.

[00:15:47] Speaker 00:
Appellant argues that the board did not address their expert opinions.

[00:15:51] Speaker 00:
However, the board did, in fact, cite to their expert declarations, at least that Appendix 17 and 37, and address the opinions in those declarations.

[00:16:01] Speaker 00:
For example, IGES's experts assume that the field of art is limited to compliance with US Federal Department of Transportation regulations.

[00:16:10] Speaker 00:
The board considered this assumption and found that is directly contrary to what the 384 patent teaches.

[00:16:17] Speaker 00:
That's in Appendix 17, and that finding was never challenged by IGS.

[00:16:22] Speaker 00:
IGS experts also opine that skein would not be considered because it is not directed to heavy trucks.

[00:16:29] Speaker 00:
That opinion contradicts the undisputed finding that skein is analogous art and therefore could be considered by a person of skill in the art.

[00:16:38] Speaker 00:
Appellant cites the Winner versus Wang case

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But that case doesn't hold, as Appellate argues, that analogous art could be entirely disregarded if some aspect of the opinion is undesirable.

[00:16:52] Speaker 00:
Under EWP, which the board cites, it explains that a reference must be considered for everything it teaches.

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And the board found that, in fact, Skeen teaches that onboard recorders were known to a person of skill in the art to be used to obtain vehicle data and generate records of vehicle and driver operation.

[00:17:13] Speaker 00:
And that's specifically what is being cited here in the 103 analysis.

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And Pat Nohner does not even dispute that fact.

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Finally, appellant argues that their opinions were unrebutted.

[00:17:28] Speaker 00:
But in fact, they are contradicted by the record, Your Honor.

[00:17:31] Speaker 00:
For example, they claim that the field here is just limited to the US Department of Transportation regulations, which only apply to passenger vehicles.

[00:17:45] Speaker 00:
just wrong.

[00:17:47] Speaker 00:
They only applied to heavy trucks.

[00:17:51] Speaker 00:
That's wrong.

[00:17:51] Speaker 00:
They also applied to passenger vehicles, which was ultimately admitted by ITS and their experts on CROSS.

[00:17:58] Speaker 00:
And that can be found at APPX 2212 and APPX 2384.

[00:18:03] Speaker 00:
In fact, we submitted evidence of a major manufacturer, Chevrolet, who was manufacturing a passenger van in 2005 in the relevant time period that would have been subject to these regulations that IGES claims are limited to heavy trucks.

[00:18:20] Speaker 00:
And commercial vehicles in general, I take it.

[00:18:24] Speaker 00:
In fact, yes, the regulations talk about defining it as commercial motor vehicles.

[00:18:28] Speaker 00:
But the definition of commercial motor vehicles is not limited to heavy trucks, as a penalty argues, Your Honor.

[00:18:33] Speaker 00:
Yes, Your Honor.

[00:18:36] Speaker 00:
And also, the 384 patent is not even limited to the US Federal Department of Transportation regulations generally.

[00:18:43] Speaker 00:
It also discusses that the inventions therein can be used for local regulations or foreign regulations, like in Mexico and Canada.

[00:18:51] Speaker 00:
IGS ignores all this evidence.

[00:18:53] Speaker 00:
And so therefore, it has no grounds on which to state that there is no substantial evidence here to support the board's decision.

[00:18:59] Speaker 00:
Nothing further, Your Honor.

[00:19:00] Speaker 02:
If we have nothing else, then we will be happy with that.

[00:19:05] Speaker 02:
And Mr. Edwards has a little rebuttal time.

[00:19:09] Speaker 02:
Thank you, Your Honor.

[00:19:11] Speaker 03:
Thank you, Your Honor.

[00:19:11] Speaker 03:
I've got three points on rebuttal.

[00:19:14] Speaker 03:
The first is about

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The first is about the difference between data collection and signaling compliance.

[00:19:21] Speaker 03:
I feel like Mr. Lindemann and I are talking past each other.

[00:19:24] Speaker 03:
I feel like our briefs talk past each other, and so I want to drill in on that point.

[00:19:29] Speaker 03:
Claim element 1D recites that a compliance signal emitted by a transmitter and indicating whether the onboard recorder is functioning to record vehicle operation data needed to generate the driver's hours of service lock.

[00:19:42] Speaker 03:
We're not disputing that

[00:19:45] Speaker 03:
We're not disputing the element of 1C that maybe Skeen and Warkington in combination would record hours of service data.

[00:19:54] Speaker 03:
What we're saying is this indicator light, its specific function is to tell the driver that it is recording every single piece of data that is necessary

[00:20:06] Speaker 03:
to generate that hours of service lock, whatever that may be, whether that may be compliance with state regulation, federal regulation, local regulation.

[00:20:15] Speaker 03:
In the context of federal regulations, which is what we've talked about the most here, if the recorder is not recording a specific piece of data required to comply with 395.8D, for example, engine speed or vehicle, engine RPMs or vehicle speed, the compliance signal

[00:20:36] Speaker 03:
is going to alert the driver to the out of compliance condition.

[00:20:40] Speaker 03:
Scheme's not going to do that.

[00:20:42] Speaker 03:
I think the hypothetical my friend on the other side proposed is illustrative of that.

[00:20:46] Speaker 03:
Scheme has that indicator light and there's no testimony, there's no evidence that it can be used for any purpose other than signaling communication.

[00:20:56] Speaker 03:
In the context of a cell phone

[00:20:59] Speaker 03:
He separated out the ability to communicate and the ability to receive a call, that it's communicating with the cellular network on the one hand and then the ability to receive a call on the other.

[00:21:09] Speaker 03:
Here, the express and only function of Scheme's indicator light is signaling the presence of communication.

[00:21:16] Speaker 03:
This isn't a new claim construction argument.

[00:21:18] Speaker 03:
We did not belatedly raise it.

[00:21:20] Speaker 03:
If you look at appendix page 47 through 49,

[00:21:24] Speaker 03:
That's the board's final written decision, where the board itself uses the plain and ordinary meaning of functioning to record, which is record.

[00:21:32] Speaker 03:
I would submit, even though the dictionaries are from after the time of the claimed invention, I would submit the definition of the verb to function probably has not changed that much in the last.

[00:21:43] Speaker 01:
Since Boswell, probably.

[00:21:45] Speaker 03:
I think that's probably right.

[00:21:49] Speaker 03:
Judge Bryson, I want to address something that you and I were talking about.

[00:21:52] Speaker 03:
I don't think I did a very good job of it earlier.

[00:21:54] Speaker 03:
And it relates back to Skeen's second clause saying it could adapt other functions.

[00:22:00] Speaker 03:
There are potentially other functions.

[00:22:03] Speaker 03:
Motiv didn't make an obvious to modify argument.

[00:22:07] Speaker 03:
They never said that a skilled artisan would have used any of these other functions and that it would have been obvious to change it in light of the disclosures of the transportation regulation or Scheme.

[00:22:19] Speaker 03:
The only thing relied on in that section of their petition is, very specifically, Scheme's ability to communicate.

[00:22:28] Speaker 03:
Under 37 CFR 42104, their failure to cite that should be dispositive of the issue, that that was not properly before the board.

[00:22:39] Speaker 03:
Finally, I want to address the motivation to combine point.

[00:22:43] Speaker 03:
Whether or not there's substantial evidence, the board's failure to consider all the evidence for the reason it was put forward is sufficient to vacate and remand this issue back to the board for further findings.

[00:22:57] Speaker 03:
Maybe the board does find that there is a motivation to combine.

[00:23:01] Speaker 03:
But what it did when it determined that there was a motivation to combine in its final written decision, as it is currently constituted, the board disregarded patent owner's evidence of desirability.

[00:23:12] Speaker 03:
And again, we're not arguing about limiting the field of analogous art.

[00:23:17] Speaker 03:
What we're saying is, Skeen may have disclosed an onboard recorder, but Skeen's onboard recorder

[00:23:23] Speaker 03:
was not functional with the largest piece of the market, the animating piece of the market at the time of the claimed invention.

[00:23:32] Speaker 03:
So because it was not functional with heavy trucks, because it was not compatible with heavy trucks, a skilled artisan would not have been motivated to use that specific reference and instead would have opted to find another reference.

[00:23:44] Speaker 01:
You say that Du Bois failed to consider the evidence that you presented.

[00:23:49] Speaker 01:
What's the basis for your conclusion that they failed to consider it other than they didn't talk about it?

[00:23:57] Speaker 03:
Your Honor, I think the fact that they did not talk about it is pretty good evidence they failed to consider it.

[00:24:01] Speaker 01:
Well, we probably have, I would guess, twice a month anyway, people that come up here and say, well, the agency failed to consider my evidence.

[00:24:14] Speaker 01:
Agencies don't necessarily, in fact, frequently don't talk about every piece of evidence that was in a case.

[00:24:21] Speaker 01:
But that doesn't mean they didn't consider it.

[00:24:23] Speaker 01:
In fact, we typically assume that the agency, in the absence of an indication to the contrary, such as that the agency says we're disregarding this evidence, we assume that they considered all the evidence that was before them.

[00:24:37] Speaker 01:
That argument, which we see frequently and does not succeed very frequently,

[00:24:42] Speaker 01:
seems to me to need something more than just failure to advert to the evidence.

[00:24:49] Speaker 03:
Let me put a finer point on that argument.

[00:24:51] Speaker 03:
It's not just that the agency failed to consider the evidence.

[00:24:54] Speaker 03:
I guess that is the high level issue.

[00:24:57] Speaker 03:
But drilling down, the agency failed to consider the evidence for the specific purpose it was offered.

[00:25:03] Speaker 03:
The agency said, this is analogous art, and we can put these two things together.

[00:25:07] Speaker 03:
It's physically possible to combine them.

[00:25:09] Speaker 03:
But the agency failed to consider

[00:25:12] Speaker 03:
the desirability of the combination.

[00:25:14] Speaker 03:
And that's the issue.

[00:25:15] Speaker 03:
Whether or not that Scheme could have been combined with Warkington, I see I'm out of time.

[00:25:21] Speaker 03:
May I respond?

[00:25:23] Speaker 03:
Whether or not Scheme could be combined with Warkington is one issue.

[00:25:28] Speaker 03:
But the central issue here is whether the proposed combination would have been desirable.

[00:25:33] Speaker 03:
And that's what the agency didn't consider.

[00:25:36] Speaker 02:
Thank you, Carl.