[00:00:00] Speaker 03:
Our next case is Jisoo Lee versus Google, 2021, 1576.

[00:00:06] Speaker 03:
Good morning, Mr. Invesco.

[00:00:12] Speaker 01:
Good morning, Your Honors.

[00:00:15] Speaker 01:
May it please the court?

[00:00:19] Speaker 01:
My name is Ben Maskell, and we are here on an appeal from the Pat Trowell Appeals Board that the board found that claims 45 and 46 of the 5-1 in the patent are unpatentable over two references, and that is Yamada and Rosenquist.

[00:00:33] Speaker 01:
The 518 patent at issue here relates to a method for transmitting, receiving, and ultimately displaying traffic state maps.

[00:00:39] Speaker 01:
And under the world of this patent that it lives in, you start with a basic map and add to that a received traffic state map.

[00:00:46] Speaker 01:
And both maps are made of a term called

[00:00:49] Speaker 01:
image vector entities.

[00:00:51] Speaker 01:
And this is a coined term.

[00:00:52] Speaker 01:
And this term is the subject of the only construction in this matter.

[00:00:56] Speaker 01:
And luckily, at least on appeal here, the construction is not in dispute.

[00:00:59] Speaker 04:
Council, can I just ask you kind of a threshold issue, which for me seems to be an elephant in the room, which is your blue brief, at least.

[00:01:07] Speaker 04:
I mean, you appealed the board's final written decision, but also the rehearing decision, right?

[00:01:12] Speaker 04:
That was part and parcel of your appeal.

[00:01:15] Speaker 04:
And the rehearing decision

[00:01:17] Speaker 04:
essentially, with maybe one exception, consists of the arguments you're making here on appeal.

[00:01:25] Speaker 04:
You can correct me if I'm wrong, but I think I'm right.

[00:01:28] Speaker 04:
And they said you would waive them below.

[00:01:31] Speaker 04:
In blue, you raise the arguments again, not even referencing the decision that's on appeal, which is the rehearing, and challenging the fact that the board said you would waive them below and not made these

[00:01:47] Speaker 04:
I'm sure you haven't even referenced that as being something that's relevant to the appeal, which I certainly think it is.

[00:01:54] Speaker 04:
What am I missing?

[00:01:56] Speaker 01:
Sure, Your Honors.

[00:01:57] Speaker 01:
And let me address that issue head on, at least as to the issue of waiver.

[00:02:05] Speaker 01:
The patentee could not have anticipated the type of errors that the board would have made.

[00:02:10] Speaker 04:
Well, I want to know more.

[00:02:11] Speaker 04:
So why don't you start with the process?

[00:02:13] Speaker 04:
Your counsel, you've got an appeal here that includes a decision denying your request for rehearing based on waiver.

[00:02:23] Speaker 04:
And in your appeal brief, you don't even mention it, let alone try to dispute the conclusions of the board that you hadn't raised these arguments sufficiently below.

[00:02:36] Speaker 04:
Isn't that the starting point for us?

[00:02:38] Speaker 04:
And how are we supposed to start at the point we should be starting if blue never even talks about it?

[00:02:46] Speaker 01:
Your Honor, you raise a very good point.

[00:02:47] Speaker 01:
And at least in the blue, in our opening brief, the patentee addressed the issues that were stated in the final written decision.

[00:02:57] Speaker 01:
And then, of course, the patent.

[00:02:58] Speaker 01:
But you disagree.

[00:02:59] Speaker 04:
The petition for rehearing, the denial of rehearing was before you too.

[00:03:02] Speaker 04:
That's on appeal as well.

[00:03:05] Speaker 04:
How could that happen?

[00:03:06] Speaker 04:
I mean, was that an oversight?

[00:03:08] Speaker 04:
Was that something that you think it's OK or correct?

[00:03:12] Speaker 04:
to not even reference it and challenge it, since that's the matter.

[00:03:16] Speaker 04:
That seems to be a threshold hurdle that we would have to get by.

[00:03:20] Speaker 04:
Would it not be?

[00:03:22] Speaker 01:
Your Honor, it's an extraordinarily important issue, and we will agree that it's a good argument.

[00:03:27] Speaker 01:
And it's important, and I think that we do have arguments, ultimately, why there has not been waiver, or if there's waiver, that there's gray areas that the court should never list.

[00:03:35] Speaker 04:
Well, is it too late for you to make those arguments now, or even to the extent you may have made something ungray?

[00:03:41] Speaker 01:
Your Honor, at the threshold, we don't believe that there has been a waiver.

[00:03:45] Speaker 01:
And I can certainly explain why we believe there has been.

[00:03:47] Speaker 04:
Well, we're talking about two waivers here.

[00:03:49] Speaker 04:
So be specific.

[00:03:49] Speaker 04:
We're talking about the waiver that the board concluded you did below.

[00:03:54] Speaker 04:
And then we're talking about kind of a waiver thing of you're not raising that on appeal.

[00:03:59] Speaker 04:
So which waiver are you talking about?

[00:04:01] Speaker 01:
So, Ron, first we'd like to talk about the waiver below at the board.

[00:04:06] Speaker 01:
And we certainly don't believe that there's a waiver there.

[00:04:08] Speaker 01:
There's a number of issues here.

[00:04:09] Speaker 01:
And I think the strongest issue is whether or not, and against waiver, the strongest matter against waiver is what happened at the Pat Trowell Appeals Board with respect to the very first limitation of claims 45 and 46.

[00:04:22] Speaker 01:
And that's displaying a traffic state map of time variant image vector entities.

[00:04:27] Speaker 01:
And the arguments that the patentee presented, both in the response and then on the request for rehearing, are essentially rooted in the exact same issue that was raised all along.

[00:04:43] Speaker 04:
And you're making these arguments now, but you didn't make them in the blue brief.

[00:04:49] Speaker 04:
Or am I wrong?

[00:04:50] Speaker 01:
No, Your Honor, if you are correct, Your Honor, they were not raised in the blue brief.

[00:04:56] Speaker 04:
So we should entertain them now in argument in the first instance?

[00:05:00] Speaker 01:
Well, I think that there's two issues of appeal.

[00:05:01] Speaker 01:
One is the final written decision.

[00:05:03] Speaker 01:
And the final written decision can be reviewed on this standard for substantial evidence.

[00:05:09] Speaker 01:
And then there is also the motion for reconsideration, which there's deemed a waiver.

[00:05:15] Speaker 01:
And that can be reviewed under an abusive discretion.

[00:05:17] Speaker 01:
So I think it matters what you want to look at.

[00:05:20] Speaker 01:
And so if we consider this as an appeal from the final written decision, then we don't touch the waiver.

[00:05:30] Speaker 01:
If the appellee wants to.

[00:05:31] Speaker 04:
Well, how do we not touch the waiver?

[00:05:33] Speaker 04:
Even if we would agree with you from A to Z on your challenges to the final written decision, if there are new arguments that were not made before the board, then that matters nothing in terms of how we come out.

[00:05:47] Speaker 01:
And Your Honor, we disagree that there are new arguments.

[00:05:49] Speaker 01:
And so we can certainly point to parts, portions of the patent owner's response that identifies what these arguments are.

[00:05:57] Speaker 01:
And we will acknowledge that they could have been made in greater detail, but they are there.

[00:06:03] Speaker 04:
They are there in blue.

[00:06:04] Speaker 04:
I thought you had told me they weren't in blue.

[00:06:05] Speaker 01:
They are there.

[00:06:06] Speaker 01:
And I'm talking about the board, what happened in front of the board.

[00:06:11] Speaker 01:
So at least in front of the board, there's numerous statements by the patentee that the combination of these two references, Yamada and Rosenquist, doesn't teach each and every limitation of the claims.

[00:06:22] Speaker 01:
Now, I think it's important to appreciate the arguments that the patent team made, given the procedural posture of this case.

[00:06:31] Speaker 01:
This case is a little bit unique in that the petition was originally filed in 2015.

[00:06:38] Speaker 01:
The Patent, Trials, and Appeals Board decided that four of the grounds didn't have any merit, but ground two could actually go forward for a full hearing.

[00:06:52] Speaker 01:
This case ended up the petition.

[00:06:55] Speaker 04:
I agree with you.

[00:06:56] Speaker 04:
It's unique, and it's SAS-based.

[00:06:59] Speaker 04:
But at the end of the day, it is what it is.

[00:07:01] Speaker 04:
The fact that it's unique doesn't help you.

[00:07:04] Speaker 01:
And I asked when the court considers waiver, I asked the court to consider what the patentee was facing when it had to file the patent owner's response on remand.

[00:07:14] Speaker 01:
And what it's looking at is it's looking at the argument that it made before the board back in 2016.

[00:07:19] Speaker 01:
And the board said, you're right, there's no question, there's no substantial question of patentability here, and we're not going to institute on round three.

[00:07:27] Speaker 01:
The patent owner's response brief almost verbatim copied the original patent owner's response because it worked.

[00:07:35] Speaker 01:
It was a prevailing argument.

[00:07:37] Speaker 01:
And in the interest of judicial efficiency and not burying the PTAB in paper, going down every possible argument in a rabbit hole, the patentee restated the argument that the board found compelling in the first place.

[00:07:50] Speaker 01:
And you must imagine our surprise that when the board came back and said, we've actually changed our mind on this.

[00:07:56] Speaker 00:
also the benefit of seeing the petitioner's reply to your patent owner response on remand.

[00:08:02] Speaker 00:
And the petitioner's reply was highlighting how the institution decision overlooked the reliance by the petitioner on the Rosenquist reference.

[00:08:12] Speaker 00:
And the institution decision incorrectly and overly narrowly focused its analysis on just the Yamada reference.

[00:08:21] Speaker 00:
And I think, at a minimum, that put your side on high alert

[00:08:27] Speaker 00:
that to at least go back and consult the original petition and confirm whether or not Rosenquist was being discussed and relied upon.

[00:08:35] Speaker 00:
And in fact, it was.

[00:08:36] Speaker 00:
We can all look at the petition today and see that.

[00:08:39] Speaker 00:
And so in that sense, you did have the notice there.

[00:08:44] Speaker 00:
And it was incumbent upon you, if you wanted to, to file a cert reply in that time to have your opportunity to join the issue.

[00:08:55] Speaker 00:
The problem we have here is...

[00:08:57] Speaker 00:
You didn't exercise that opportunity, and then you didn't raise your more Rosenquist-based arguments until your request for rehearing after the final written decision.

[00:09:08] Speaker 00:
So in that sense, while I have some sympathy for you as to how to construct a patent-owner response on remand from this court, you had everything that you needed to know about what could possibly come in a final written decision as you looked at the petitioner's reply.

[00:09:25] Speaker 00:
So could you please respond to that?

[00:09:26] Speaker 01:
Yes, and Your Honor, you're absolutely correct.

[00:09:29] Speaker 01:
And there are some other facts that are in the record, although I would say implicitly in the record, and that exactly the time after the patent owner's initial response was filed and after the petitioner's reply brief was filed, the Patent Owner's Council made a

[00:09:46] Speaker 01:
request to withdraw from the case, and for the reasons that attorneys normally withdraw from cases.

[00:09:51] Speaker 01:
And this really disrupted the patentee's opportunity to prepare and submit a surreply.

[00:09:56] Speaker 01:
And ultimately, that's not this court's problem.

[00:10:00] Speaker 01:
But that should be something that is considered in considering the grand equities of getting to the right decision, which is this court's ultimate charge is to get to the right decision.

[00:10:12] Speaker 01:
The patentee filed a response.

[00:10:13] Speaker 01:
And their counsel would draw before they could file us a reply.

[00:10:17] Speaker 01:
The patentee in this case, his name is Jisoo Lee.

[00:10:20] Speaker 01:
He's an individual.

[00:10:20] Speaker 01:
He lives in Korea.

[00:10:22] Speaker 01:
And this matter has been going on since 2015.

[00:10:26] Speaker 01:
And so seven years for an individual paying for attorneys who nearly at the finish line

[00:10:33] Speaker 01:
his attorneys withdraw from the case.

[00:10:35] Speaker 01:
And it's extraordinarily difficult for him.

[00:10:37] Speaker 01:
And at least the decision at that point was, well, we can't reasonably hire more counsel, and we're going to have to submit on the briefs.

[00:10:43] Speaker 01:
And that's what they did.

[00:10:44] Speaker 01:
But then when we get the opinion, and Your Honor, you're absolutely right, that there were

[00:10:49] Speaker 01:
important issues that were raised in the petitioners' reply that were unresponsive to.

[00:10:54] Speaker 01:
But we don't think that that creates a waiver, at least as to the fundamental argument that we have, which is that these two references do not teach or disclose the limitations at issue here.

[00:11:05] Speaker 00:
You could have identified those issues and limitations in your Pat Nohner response, though, right?

[00:11:14] Speaker 00:
I guess that's kind of the challenge.

[00:11:16] Speaker 00:
I mean, you narrowly selected two issues in your Pat Nohner response, motivation to combine your Mata and Rosenquist, and then issue number two, your Mata doesn't teach an attribute designating statement.

[00:11:32] Speaker 00:
That's how I understand the Pat Nohner response.

[00:11:36] Speaker 00:
And now I understand you want to identify several other things that you don't think either Yamato or Rosenquist teach, but the opportunity was

[00:11:45] Speaker 00:
right there before you in the patent owner response to identify that.

[00:11:49] Speaker 00:
There wasn't anything further you needed to be educated about throughout the proceeding subsequent to your patent owner response.

[00:11:58] Speaker 00:
Do you have really known about those possible defects in a Yamada-Rosenquist combination?

[00:12:04] Speaker 00:
Is that right?

[00:12:06] Speaker 01:
Your Honor, the Yamada-Rosenquist

[00:12:10] Speaker 01:
combination, at least as proposed by the petitioner.

[00:12:13] Speaker 01:
And in the reply brief, which we'll acknowledge was not responded to, they did raise a number of points that at least they allege in the patent office, except it is true, that Rosenquist teaches the three types of designating statements.

[00:12:25] Speaker 01:
But what we saw from the board on the opinion was a jump beyond what was asked for by the petitioner here.

[00:12:34] Speaker 01:
And that specifically relates to the construction of this image vector entity, which is kind of the core of the dispute here.

[00:12:41] Speaker 01:
And the image vector entity, the last 10 words of the construction of that are that these designating statements are used to display the shape of a real entity at the specified position.

[00:12:51] Speaker 03:
Counsel, you're well into your rebuttal time.

[00:12:53] Speaker 03:
You can continue.

[00:12:54] Speaker 03:
We'll save it.

[00:12:57] Speaker 01:
Your Honor, we will save it.

[00:12:58] Speaker 01:
Thank you, Judge.

[00:13:01] Speaker 03:
Ms.

[00:13:01] Speaker 03:
Simmons.

[00:13:02] Speaker 02:
Good morning, Your Honors.

[00:13:03] Speaker 02:
May it please the court?

[00:13:04] Speaker 02:
Luanne Simmons for Appellee Google.

[00:13:08] Speaker 02:
The questioning that Your Honors raised with my esteemed colleague on the other side of the aisle really hits right on the threshold issue

[00:13:16] Speaker 02:
that is before the court today, which is the issue of waiver.

[00:13:20] Speaker 02:
And as Judge Proce noted, it's actually a double waiver, or sort of a waiver within a waiver.

[00:13:25] Speaker 02:
We think this threshold issue is straightforward and is dispositive of this entire appeal.

[00:13:32] Speaker 02:
To be clear, we believe that should the court decide to excuse the waivers and entertain the merits, the board's decision is fully supported by substantial evidence, the board's final written decision.

[00:13:46] Speaker 02:
finding that claims 45 and 46 of the 518 patent are invalid.

[00:13:52] Speaker 02:
And we've laid that out, I think, pretty clearly in our briefing.

[00:13:55] Speaker 02:
Obviously, I'm happy to answer any questions about the merits.

[00:13:59] Speaker 02:
But just to begin.

[00:14:01] Speaker 04:
If we were to go down that route, would we have to, as a threshold matter, reverse or vacate the board's decision on reconsideration, which is also before us on appeal?

[00:14:13] Speaker 02:
Your Honor, I don't believe that this court, I think remand to the board, if that's, maybe I'm not understanding the question, but if the court were to consider the merits and decide that the waiver does not dispose of the appeal in its entirety,

[00:14:30] Speaker 02:
We don't believe, or we submit, that there would be no need to remand the issue back to the board so that it considered the new arguments that Mr. Lee is raising on appeal.

[00:14:38] Speaker 04:
No, no.

[00:14:39] Speaker 04:
That wasn't my question.

[00:14:40] Speaker 04:
My question was just more of a process question, which is we've got the final board decision, and we've got this rehearing decision.

[00:14:47] Speaker 04:
The rehearing decision says you waived it.

[00:14:50] Speaker 04:
If we were to reject that, I mean, if we get to the merits, it means we've rejected the board's decision on rehearing.

[00:14:57] Speaker 04:
So we would have to.

[00:15:00] Speaker 04:
reject it, i.e.

[00:15:02] Speaker 04:
vacate it or something, and then get to the merits and say they were wrong.

[00:15:05] Speaker 04:
And that would be under an abuse of discretion?

[00:15:08] Speaker 02:
Yes, Your Honor.

[00:15:08] Speaker 02:
There is no dispute that the standard of review for the board's finding of waiver is abuse of discretion.

[00:15:15] Speaker 02:
And we submit that not only did petitioner, or I'm sorry, the appellant,

[00:15:22] Speaker 02:
failed to address this issue at all in the blue brief, but that there wouldn't have been anything they could have shown in any event that would be evidence sufficient to show abusive discretion.

[00:15:31] Speaker 02:
The board clearly laid out in its denial of the request for rehearing where it went through each of the arguments that Mr. Lee made in its request for rehearing and indicated that such arguments were not found in the patent owner's response on remand.

[00:15:50] Speaker 02:
And there was, in fact, one instance where the patent owner cited to a particular page in the patent owner response.

[00:16:00] Speaker 02:
And the board took a look at that and said, no, that's actually not the argument that was made.

[00:16:05] Speaker 02:
And that's at, I can't, let me just give you the site for that.

[00:16:13] Speaker 02:
I believe it's at appendix 25.

[00:16:14] Speaker 02:
The board fully considered.

[00:16:19] Speaker 02:
Mr. Lee's attempt to indicate where previous arguments, the arguments he was making on rehearing, had been made in the patent owner's response and determined that no such arguments had been made and that, therefore, they had been waived.

[00:16:32] Speaker 04:
Well, arguably, there is an issue that hasn't been waived.

[00:16:35] Speaker 04:
And that's the motivation to combine.

[00:16:37] Speaker 04:
So why don't you spend a minute on that or two?

[00:16:39] Speaker 02:
So it is a slightly different calculus when it comes to the motivation to combine, agreed on that.

[00:16:46] Speaker 02:
But there is still a double waiver.

[00:16:48] Speaker 02:
And that is because in their blue brief before this court, Mr. Lee did not raise the issue of motivation to combine.

[00:16:57] Speaker 02:
There's a section header that refers to motivation to combine, but the actual arguments in that section do not address the board's findings on motivation to combine.

[00:17:08] Speaker 02:
And so the first or most recent in time waiver

[00:17:12] Speaker 02:
was before this court, because Mr. Lee did not.

[00:17:15] Speaker 04:
Let's assume we don't categorize that as a waiver.

[00:17:17] Speaker 04:
We just say, well, they didn't make the right arguments.

[00:17:21] Speaker 04:
And it's more of a merits dispute.

[00:17:23] Speaker 04:
So why don't you address that as if it were a merits argument?

[00:17:27] Speaker 02:
Sure.

[00:17:28] Speaker 02:
The second waiver, I absolutely am happy to talk about the substance.

[00:17:32] Speaker 02:
I did want to point out that there was also a waiver under this court's finding in Polycom versus Fullview.

[00:17:39] Speaker 02:
at 767 Federal Appendix 970 because Mr. Lee did not raise the motivation to combine challenges in his request for rehearing before the board.

[00:17:52] Speaker 02:
So while the request for rehearing is optional.

[00:17:55] Speaker 00:
So I don't understand if Mr. Lee raises it in the proceeding itself.

[00:18:03] Speaker 00:
He needs to also raise it again in the request for rehearing in order to preserve the issue for appeal at the Federal Circuit.

[00:18:10] Speaker 00:
Yes, Your Honor.

[00:18:11] Speaker 00:
He can't just target specific issues in the request for a rehearing?

[00:18:17] Speaker 02:
He cannot, Your Honor, under this.

[00:18:18] Speaker 00:
While still preserving other issues that were decided against him in the final written suit?

[00:18:24] Speaker 02:
Your Honor, this court found differently and said no to answer that question.

[00:18:29] Speaker 02:
And what did we say?

[00:18:30] Speaker 02:
What was that?

[00:18:31] Speaker 02:
In the Polycom versus Fullview case.

[00:18:33] Speaker 02:
This is a non-correct opinion, right?

[00:18:35] Speaker 02:
I'm sorry?

[00:18:35] Speaker 00:
Yes, correct.

[00:18:36] Speaker 00:
This is a non-precedential opinion.

[00:18:37] Speaker 02:
That's correct.

[00:18:38] Speaker 02:
That is correct.

[00:18:39] Speaker 02:
In the Polycom versus Fullview case, this court found that while the request for a rehearing procedure is an optional procedure, once a party elects to go down that route,

[00:18:53] Speaker 02:
that party must raise all arguments that it wishes to make or preserve for appeal to this court so that the board may consider it.

[00:19:01] Speaker 02:
It follows with the rationale behind.

[00:19:04] Speaker 02:
all of this court's waiver decisions for issues that have arisen in the Patent Office, because this court wants to do it.

[00:19:12] Speaker 02:
Why?

[00:19:12] Speaker 04:
If there's something special about a rehearing that necessitates a rehearing, like you've got something procedural wrong, or you considered this.

[00:19:20] Speaker 04:
So you're saying that under our case law, non-precedential, of course, so it's not binding on this panel, but that

[00:19:27] Speaker 04:
Even if there's one sort of mundane question that you think is procedural, you've got to put every other issue in that you have, every other debate point in with respect to the final written decision, or else you've waived it?

[00:19:41] Speaker 04:
That is what this court held in Polycom, Your Honor.

[00:19:45] Speaker 02:
OK.

[00:19:45] Speaker 04:
Let's assume we don't feel compelled to follow that decision.

[00:19:48] Speaker 02:
OK.

[00:19:49] Speaker 02:
Absolutely.

[00:19:50] Speaker 02:
The board's decision finding that there was adequate evidence to support a motivation to combine

[00:19:57] Speaker 02:
is supported by substantial evidence.

[00:20:00] Speaker 02:
And that is clear from the record.

[00:20:01] Speaker 02:
The board went through in detail and relied on the unrebutted expert testimony of Dr. Michelson, Google's expert during the IPR, and showed what the motivations were to combine were based on that unrebutted testimony and based on the disclosures in Yamada and Rosenquist.

[00:20:21] Speaker 02:
And in particular, the board's discussion of this is that appendix

[00:20:27] Speaker 02:
19 through 20, preliminarily, and then at appendix 25 through 27, which is in the final written decision, the board explained that Dr. Michelson had shown that a person of skill in the art would have seen that adding the information disclosed in the TMC messages from Rosenquist to Yamada's traffic display system would improve Yamada's system by making the information easier to see, more user-friendly,

[00:20:57] Speaker 02:
by having a more efficient mechanism for delivering the information and by formatting the information that was delivered to the system for display in a better, more efficient, and ultimately more user-friendly way.

[00:21:12] Speaker 02:
Dr. Michelson also explained that a person would have been skilled

[00:21:16] Speaker 02:
a person skilled in the art would have been motivated to combine the references because the combination would end up with a system that was safer for the users to use.

[00:21:25] Speaker 02:
Because it would have been easier to quickly look at the map, see what a traffic situation was based on the colors and the shapes described in Rosenquist without having to spend a lot of time trying to figure out what was going on.

[00:21:40] Speaker 02:
So safer system, more user-friendly system, better and more efficient

[00:21:46] Speaker 02:
transmittal of the traffic information itself.

[00:21:50] Speaker 02:
Those are the reasons that Dr. Michelson laid out and that the board relied on

[00:21:57] Speaker 02:
in the final written decision at appendix 25 through 27.

[00:22:00] Speaker 02:
So substantial evidence.

[00:22:02] Speaker 04:
I'm not obsessing over this polygon thing, but I just have to ask you, because I just tried to check the table of contents in red, and you didn't cite it in red.

[00:22:12] Speaker 04:
Is that because it issued after you filed the brief?

[00:22:14] Speaker 02:
No, Your Honor.

[00:22:15] Speaker 02:
It was simply an oversight, and I apologize for that.

[00:22:17] Speaker 04:
But did you make the argument in red that you're making today?

[00:22:20] Speaker 04:
We did not.

[00:22:21] Speaker 04:
Oh, another waiver issue.

[00:22:23] Speaker 04:
Triple waiver.

[00:22:26] Speaker 02:
Fair enough.

[00:22:27] Speaker 02:
I take that.

[00:22:28] Speaker 02:
That's my responsibility.

[00:22:29] Speaker 02:
I was honestly a bit surprised about the Polycom decision.

[00:22:34] Speaker 02:
I was surprised to find it.

[00:22:35] Speaker 02:
So I apologize that we didn't cite it in our brief.

[00:22:41] Speaker 02:
If your honors had no further questions about either the merits or the waiver arguments, I'll submit on the briefs.

[00:22:48] Speaker 03:
Thank you, counsel.

[00:22:49] Speaker 02:
Thank you.

[00:22:51] Speaker 03:
Mr. Maskell has a little rebuttal time.

[00:22:55] Speaker 01:
Thank you, Your Honors.

[00:22:58] Speaker 01:
It's one issue on the merits, and that is what we believe to be our strongest argument on appeal.

[00:23:04] Speaker 01:
And that is whether there was substantial evidence to find that Rosenquist teaches the claimed image factor entities.

[00:23:10] Speaker 01:
And what we believe to be kind of the most important thing here and the prime reason that we're on appeal

[00:23:15] Speaker 01:
is that the patent trial on Galesburg failed to properly apply its own construction in finding these image vector entities in Rosenquist.

[00:23:23] Speaker 01:
And the key part of this construction is that the designating statements are used to draw the shape of real entities at the specified position.

[00:23:34] Speaker 01:
And if the court wanted to find some extraordinarily clear error, and this is the reason that we believe this case should be reversed, it's in appendix page 25.

[00:23:45] Speaker 01:
If you look at a page of page 25, and it says, based on the foregoing, we find that Rosenquist teaches, and then they recite the definition of image vector entity, because Rosenquist's TMC messages include information representing images to be displayed in a particular format as discussed above.

[00:24:01] Speaker 01:
And so what is discussed above, you don't actually have to go off page 25.

[00:24:06] Speaker 01:
You can just go up to the very first line of 25.

[00:24:08] Speaker 01:
And it says, Rosenquist discloses, displaying the contents of the messages

[00:24:12] Speaker 01:
And the symbols that are displayed are illustrated in figure four as various shapes.

[00:24:17] Speaker 01:
And so I want to juxtapose what the claim construction requires, which is the shape of real entities at the specified location.

[00:24:24] Speaker 01:
The shape of a real entity, that's a road, that's a building, that's a mountain.

[00:24:29] Speaker 01:
But Rosenquist displays symbols.

[00:24:31] Speaker 01:
And if you look at what figure four of Rosenquist is, it's a star.

[00:24:34] Speaker 01:
There is an arrow.

[00:24:36] Speaker 01:
That's not the shape of a real entity.

[00:24:39] Speaker 01:
The claim construction that the PTAB came to is that it must be the shape of the real entity.

[00:24:45] Speaker 01:
It says Rosenquist teaches this, but Rosenquist doesn't.

[00:24:49] Speaker 01:
Rosenquist teaches showing symbols.

[00:24:52] Speaker 01:
For this reason, which we believe is the strongest argument that we have,

[00:24:56] Speaker 01:
This court must be the relief valve to help the patentee to correct the actions of the patent trial on field court.

[00:25:03] Speaker 01:
We want to dissuade the court from taking a hyper-technical application of the rules of waiver and finding that these arguments were waived.

[00:25:11] Speaker 01:
The patentee did below argue that the references didn't disclose each and every limitation of the claims at issue.

[00:25:19] Speaker 01:
And so, but it's most important to reach the right decision.

[00:25:22] Speaker 01:
And where there is manifest error, as there is here, and as you can see it completely neatly circumscribed on page 25, we ask this court reverse.

[00:25:30] Speaker 00:
Footnote 1, 836, 837, this is the rehearing decision.

[00:25:36] Speaker 00:
The board points out that Mr. Lee's counsel below did not seek to withdraw until after the sole reply period was over.

[00:25:44] Speaker 00:
Is that right?

[00:25:45] Speaker 00:
Your Honor.

[00:25:46] Speaker 00:
Is that an accurate statement

[00:25:47] Speaker 00:
What happened?

[00:25:48] Speaker 01:
Your Honor, to the best of my knowledge, yes.

[00:25:50] Speaker 01:
And I must admit that I was retained on this very recently.

[00:25:54] Speaker 01:
OK, very good.

[00:25:56] Speaker 03:
Thank you, counsel.

[00:25:58] Speaker 03:
The case is submitted.

[00:25:59] Speaker 01:
Your Honor, Judge Kinn, if I may respond to that, I did remember something.

[00:26:03] Speaker 01:
The PTAB would not allow them to withdraw until after the briefing was completed.

[00:26:07] Speaker 00:
Right, but the motion to withdraw was not filed until after the time period for a potential surreply had expired.

[00:26:16] Speaker 00:
Yes.

[00:26:17] Speaker 01:
And they had refused to file it.

[00:26:20] Speaker 00:
I'm sorry?

[00:26:21] Speaker 01:
The previous council had refused to file a surreply.