[00:00:00] Speaker 02:
Okay, now our first case for argument is 24-1488, Eagle View Technology versus NIRMAP.

[00:00:08] Speaker 02:
Ms.

[00:00:09] Speaker 02:
Vu, please proceed.

[00:00:11] Speaker 01:
Good morning and may it please the court.

[00:00:13] Speaker 01:
I'm Laura Vu on behalf of Eagle View.

[00:00:15] Speaker 01:
This appeal addresses errors in the board's analysis of the calculating or determining a pitch limitation and motivation to combine.

[00:00:25] Speaker 01:
Starting with calculating a pitch,

[00:00:28] Speaker 01:
The board found Littleworth teaches that limitation.

[00:00:31] Speaker 01:
But Littleworth has no calculation or numbers.

[00:00:34] Speaker 01:
It only has a drawing.

[00:00:36] Speaker 01:
And so in order for the board to find that Littleworth teaches the calculation limitation, it had to either read in a calculation teaching into Littleworth through an improper inherency analysis, or it had to read the calculation requirement out of the same.

[00:00:52] Speaker 01:
Either way, the board erred.

[00:00:54] Speaker 01:
Starting first with the inherency

[00:00:58] Speaker 01:
analysis, the board improperly found Littleworth discloses calculating a pitch using inherency without applying the proper inherency standard.

[00:01:10] Speaker 01:
The board substantively relied on an inherency theory by finding that a single statement in Littleworth, a statement saying roof detail was digitized indicating their pitch teaches calculation.

[00:01:26] Speaker 04:
rejected your understanding of Nearmap's theory when you said that Nearmap relied on an inherency argument and the board said, no, that's not how they read the petition nor how they read the expert's declaration.

[00:01:45] Speaker 04:
And we give the board quite a bit of discretion in how it chooses to read and understand a petitioner's theory, isn't that right?

[00:01:55] Speaker 01:
That is true, but the court has found previously that the court can just look at the board's analysis and determine the board was relying on here and see even when the board doesn't explicitly say so and that's exactly.

[00:02:09] Speaker 01:
what happened in LBT and personal life.

[00:02:11] Speaker 04:
Right, but here the board specifically said we reject Eagle View's belief that the petitioner relied on an inherency theory.

[00:02:21] Speaker 04:
Is that right?

[00:02:22] Speaker 01:
That is right.

[00:02:24] Speaker 04:
So we have to review that conclusion by the board for abusive discretion.

[00:02:29] Speaker 04:
Is that right?

[00:02:31] Speaker 01:
In this case, it would be a legal error because the board improperly applied

[00:02:37] Speaker 01:
the inherency analysis and that's, I think that's how the court analyzed the board's analysis in LBT and personal web.

[00:02:45] Speaker 01:
They looked at the board's analysis and in both those cases the board did not say it was relying on inherency, but the court looking at the board's analysis determined that it was substantively relying on inherency.

[00:02:59] Speaker 01:
And that's exactly the case here.

[00:03:01] Speaker 04:
So you're asking us to review the board's analysis here and reach a legal conclusion that the board itself was relying on an inherency theory?

[00:03:14] Speaker 01:
Yes, because again, personal love and LPT allow the court to do that.

[00:03:20] Speaker 01:
The court can examine the board's analysis and determine

[00:03:25] Speaker 01:
that the board was substantively relying on inherency, even though the board doesn't explicitly say so.

[00:03:33] Speaker 04:
Okay, so the board seemed to find that both Littleworth and Middlebrook disclose determining slash calculating pitch and pointed to specific statements within those two references.

[00:03:48] Speaker 04:
One saying, you know, I think Littleworth saying it's literally indicating a pitch and then the other one saying you can make all kinds of measurements of different kinds of dimensions, which the boards said would include a pitch.

[00:04:01] Speaker 04:
So what's wrong with what the board did there and relying on specific statements from those two references?

[00:04:12] Speaker 01:
Our position is that the board only relied on little worth for teaching calculating a pitch and that is at the board's decision at Appendix 67.

[00:04:23] Speaker 01:
In this part of the board's decision, the board is actually rejecting

[00:04:29] Speaker 01:
Eagle View's arguments in the patent owner response that Middlebrook does not teach calculating a pitch.

[00:04:36] Speaker 01:
The pages cited of the patent owner response, pages 68 to 71, I believe that corresponds to appendix 575 to 577, those pages are Eagle View's arguments arguing that Middlebrook does not teach calculating a pitch and the board rejected those arguments

[00:04:56] Speaker 01:
and said petitioner does not rely on Middlebrook to teach those claim elements.

[00:05:00] Speaker 01:
And so in light of this statement by the board, our position is that the board viewed Middlebrook, or sorry, viewed Littleworth as teaching calculating a pitch.

[00:05:13] Speaker 01:
And so the disclosures that the board relied on in Littleworth

[00:05:20] Speaker 01:
do not teach calculating a pitch on its face, and so the board had to read an inherent teaching into Littleworth.

[00:05:31] Speaker 03:
My understanding is that the board instead said that instead of relying on inherency, they were just simply making a finding as to what a person of ordinary skill and the art would understand to be disclosed or obvious from Littleworth.

[00:05:46] Speaker 03:
How would you have us draw the line between a simple

[00:05:50] Speaker 03:
sort of fact-finding about what one SWR would read into something as opposed to applying the doctrine of inherency.

[00:06:00] Speaker 01:
So I think, again, LBT is quite instructive on that question.

[00:06:05] Speaker 01:
And so what the board did here was it found that a statement, you know, roof detail was digitized indicating a pitch teaches calculation.

[00:06:14] Speaker 01:
That statement does not say calculate.

[00:06:18] Speaker 01:
And so the board used the expert testimony to fill the gap and testify that this statement teaches calculating a pitch.

[00:06:30] Speaker 01:
They didn't say it would be obvious.

[00:06:31] Speaker 01:
They said this statement teaches calculating a pitch.

[00:06:34] Speaker 01:
However, if you look at the deposition testimony from the expert, the expert concedes that

[00:06:44] Speaker 01:
there is not necessarily a calculation of a pitch.

[00:06:48] Speaker 01:
The deposition testimony at appendix 4474 and 4525 all say there is a calculation of a pitch somewhere in there.

[00:07:00] Speaker 01:
And the system is not necessarily calculating a pitch.

[00:07:03] Speaker 04:
And so that... Just to follow up on Judge Stark's question in terms of where is the line

[00:07:09] Speaker 04:
between understanding whether a theory is based on inherency versus a theory of reading something expressed in a prior art reference and interpreting that expressed statement as carrying with it some particularized meaning.

[00:07:28] Speaker 04:
That's my understanding of what would be the distinction between an example.

[00:07:35] Speaker 04:
What if Littleworth never said anything about pitch?

[00:07:39] Speaker 04:
And then Dr. Forsythe had to come forward and say, OK, this reference doesn't say anything about pitch, but I can tell when it, given that it's talking about generating a 3D model of all these buildings using these aerial images, the only way you can reliably form a 3D model is not only getting the area of the roof, but also the pitch of the roof.

[00:08:03] Speaker 04:
That's the only way you can do it.

[00:08:05] Speaker 04:
That would be an inherency theory.

[00:08:07] Speaker 04:
But here we have,

[00:08:08] Speaker 04:
expressly from Littleworth a statement saying we're going to have a 3D model and it's going to indicate the pitch of any roof.

[00:08:18] Speaker 04:
Now it feels like that seems fair game for an expert to say a person of ordinary skill in the art reading that statement in Littleworth would understand indicating a pitch in your generated 3D model would mean that you were actually

[00:08:35] Speaker 04:
making a determination slash calculation of said pitch.

[00:08:40] Speaker 04:
And I think if that's the understanding that the petitioner pushed forward, why wouldn't that be an appropriate way of explaining what the reference discloses without relying on an inherency theory?

[00:08:55] Speaker 01:
So I'm going to try to take that question in pieces.

[00:08:59] Speaker 01:
Just to start, so the statement indicating a pitch does not say calculating.

[00:09:04] Speaker 01:
And so I think we have to start from that question.

[00:09:08] Speaker 01:
What does indicating a pitch mean?

[00:09:10] Speaker 01:
So there's clearly a gap between what does indicating mean and what the claim requires, which is calculating a pitch.

[00:09:18] Speaker 01:
And there's evidence in the record showing that there are other ways to indicate a pitch besides calculating a pitch.

[00:09:26] Speaker 01:
What Littleworth was directed to was just taking images and generating a model.

[00:09:31] Speaker 01:
You could generate a model without doing actual measurements and without doing calculations.

[00:09:36] Speaker 01:
You could simply just look at something and draw it, even on paper.

[00:09:42] Speaker 01:
But in this case, it would be a 3D model, perhaps in CAD.

[00:09:46] Speaker 01:
And so there's not necessarily a calculation of a pitch, which is, I think, why our position is that there is an improper inherency analysis where the board didn't apply the correct standard.

[00:10:04] Speaker 02:
Do you want to take a few minutes and touch upon your accuracy argument?

[00:10:08] Speaker 01:
Is that the claim construction argument you're referring to?

[00:10:10] Speaker 02:
Yeah, the estimation versus accuracy argument.

[00:10:14] Speaker 01:
So our position on the claim construction issue is that claim construction and herency are really just two sides of the same coin.

[00:10:23] Speaker 01:
And so by the board interpreting, calculating a pitch to be met by something that is less than an actual calculation, there

[00:10:33] Speaker 01:
interpreting the plain meaning of the word calculating out of the claim.

[00:10:37] Speaker 01:
We believe the claim requires an actual calculation and so an estimate or drawing would not be sufficient.

[00:10:45] Speaker 01:
I think that's all we would like to say on that.

[00:10:49] Speaker 01:
If the court has any further questions, I can move on.

[00:10:52] Speaker 04:
Okay, you had a motivation to combine argument.

[00:10:57] Speaker 01:
Yes.

[00:10:58] Speaker 01:
So our motivation to combine argument is that the board erred by failing

[00:11:02] Speaker 01:
to consider Eagleview's arguments as to motivation to combine, because it found that Eagleview's arguments were directed to a limitation that was not present in the claims.

[00:11:13] Speaker 01:
And the board was wrong for two reasons.

[00:11:17] Speaker 01:
Just to set the stage a little bit, the argument by Eagleview was that you couldn't combine Littleworth's images, which refer to like a top down and a side,

[00:11:29] Speaker 01:
image with Linder's teachings, which referred to two images from the same perspective, like what you would see from your eyes.

[00:11:37] Speaker 01:
You could not combine those two.

[00:11:38] Speaker 01:
And the board dismissed Eagleview's arguments because it believed that the claims did not require any perspectives.

[00:11:49] Speaker 01:
That is wrong because claims that

[00:11:53] Speaker 01:
There are claims that require this concept of different perspectives.

[00:11:58] Speaker 01:
In the 436 patent, that's claims 1 and 18, they explicitly require that the images are not a stereoscopic pair.

[00:12:06] Speaker 01:
That is the technical term for the different perspectives that we're talking about.

[00:12:12] Speaker 04:
Yeah, but during the re-exam prosecution history, it seems like your side came up with a very particular

[00:12:21] Speaker 04:
definition of what it means to be not a stereoscopic pair to overcome a prior art reference, i.e.

[00:12:27] Speaker 04:
you basically said, well, we're going to add this limitation, not a stereoscopic pair.

[00:12:33] Speaker 04:
And what that phrase means is it's something that's not that whatever that prior art reference is.

[00:12:41] Speaker 01:
So I believe what the claim requires is, you know, it explicitly requires a top down and a side view image.

[00:12:49] Speaker 01:
And those images are not a stereoscopic pair.

[00:12:52] Speaker 01:
And so by saying not a stereoscopic pair,

[00:12:58] Speaker 01:
EagleView is trying to differentiate using these images from different perspectives, again, top down and side, with the similar perspectives.

[00:13:06] Speaker 04:
I guess the bottom line question I have on this motivation issue is this.

[00:13:11] Speaker 04:
You start with Littleworth.

[00:13:12] Speaker 04:
Littleworth already says that it's generating a suitable 3D model from these aerial images.

[00:13:19] Speaker 04:
Could be a top down view and as well as an oblique view.

[00:13:23] Speaker 04:
And then it also talks about how you would use control points across the images.

[00:13:27] Speaker 04:
But it doesn't give you any details about exactly how you would use control points across two images.

[00:13:32] Speaker 04:
Well, that's where Linder comes in, because Linder talks about just the kind of elemental understanding of when you use control points, the same control points across multiple images, you're going to do some correlation of the images.

[00:13:47] Speaker 04:
And that's really all that is needed from Linder

[00:13:51] Speaker 04:
to add to Littleworth's teaching.

[00:13:54] Speaker 04:
So it seems besides the point, whether we're talking about stereoscopic or non-stereoscopic images, all that is really needed here is to flesh out the meaning of how you would use Littleworth's control points.

[00:14:08] Speaker 04:
And so I don't understand why we need to go any further than that in thinking about the motivation issue.

[00:14:16] Speaker 01:
So we believe our position is that the motivation issue is core to the combination, the proposed combination of Littleworth and Linder because again, Littleworth does not explicitly disclose how you do this correlation aspect.

[00:14:35] Speaker 01:
And I think that ties into our substantial evidence argument.

[00:14:39] Speaker 01:
The board relied on a half sentence in Linder to support its finding that

[00:14:45] Speaker 01:
Linder could apply to non-stereoscopic images.

[00:14:52] Speaker 01:
And when you look at that full sentence in Linder, that sentence says that it is applying to stereoscopic images.

[00:15:00] Speaker 01:
And so because of that statement and the foundational teaching that the board is relying on in Linder,

[00:15:09] Speaker 01:
Like that, there is an incompatibility with the proposed combination.

[00:15:13] Speaker 02:
Council, you've used all your time and all your rebuttal time.

[00:15:16] Speaker 02:
I will restore a little bit of rebuttal time, but we need to hear from this.

[00:15:19] Speaker 02:
Thank you.

[00:15:32] Speaker 00:
Good morning, Your Honors.

[00:15:32] Speaker 00:
May it please the Court?

[00:15:33] Speaker 00:
My name is Megan Raymond on behalf of NEARMAP.

[00:15:37] Speaker 00:
Given the questions on inherency,

[00:15:40] Speaker 00:
Perhaps I will start there.

[00:15:42] Speaker 00:
NIRMAP, of course, didn't argue Inherency below.

[00:15:46] Speaker 00:
And indeed, what NIRMAP was doing was interpreting what Littleworth meant, the words of Littleworth itself.

[00:15:53] Speaker 02:
Didn't the board expressly disavow that it was relying on Inherency?

[00:15:57] Speaker 02:
Indeed.

[00:15:57] Speaker 02:
The board did.

[00:15:58] Speaker 02:
So what other arguments do you have?

[00:16:00] Speaker 04:
Certainly, Your Honor.

[00:16:02] Speaker 04:
Just before we walk away from Inherency, I guess the concern is when

[00:16:12] Speaker 04:
the board sees a word in a reference and then decides, oh, we're going to ladle a lot of meaning into that word because a skilled person in the art would see in that one word, I don't know, 150 words of detail.

[00:16:33] Speaker 04:
Once, say, an expert or a board fact-finding does that,

[00:16:40] Speaker 04:
At what point does that kind of translation of a single word into 150 words of detailed meaning start to look a lot like inherency?

[00:16:50] Speaker 00:
I think it's when there's an actual gap rather than an interpretation.

[00:16:55] Speaker 00:
Here, I think what I heard Eagleview argue is that the issue, at least one of the issues was that what the reference says is indicating a pitch rather than calculating a pitch.

[00:17:09] Speaker 00:
And so here,

[00:17:10] Speaker 00:
the expert hasn't made a very big leap to say indicating a pitch would be understood to mean calculating a pitch in this context, particularly in the context of the figures that are also in Littleworth.

[00:17:24] Speaker 04:
But you agree if the reference had never said the word pitch, and then Dr. Forsythe comes in and says, well, when I read this Littleworth reference, a skilled artisan would understand that

[00:17:40] Speaker 04:
what's going on here includes calculating a pitch.

[00:17:46] Speaker 04:
That would be an inherency theory?

[00:17:47] Speaker 00:
I think that would be closer, particularly without the figures.

[00:17:50] Speaker 00:
If there was something that said the figures show a building, then we wouldn't really know anything about pitch.

[00:17:56] Speaker 00:
But we do also have the figures here.

[00:18:00] Speaker 00:
So then turning on to Middleworth, perhaps, I heard

[00:18:08] Speaker 00:
I think the Middleworth issue is not impacted by the inherency arguments.

[00:18:13] Speaker 00:
The board clearly relied on Middlebrook for pitch itself.

[00:18:17] Speaker 00:
The issue that I believe was raised by Eagleview this morning is actually an argument about whether Middleworth teaches calculating a pitch based on the images.

[00:18:28] Speaker 00:
And the based on the images portion of that limitation is what we rely on Littleworth for, indeed the combination of Littleworth and Middlebrook.

[00:18:37] Speaker 00:
What Eagle View was ignoring is the context of obviousness.

[00:18:41] Speaker 00:
And indeed, the board specifically, this argument was made below.

[00:18:44] Speaker 00:
The board specifically found that this was not petitioner's argument.

[00:18:48] Speaker 00:
The board said, petitioner does not rely on Middlebrook to teach those claim elements referring to the based on the images aspect of the combination.

[00:18:57] Speaker 00:
And this is supported by substantial evidence

[00:18:59] Speaker 00:
that the board cited, including at Appendix 2778, which is Exhibit 1028, Paragraph 49.

[00:19:04] Speaker 00:
And that's the first thing.

[00:19:04] Speaker 02:
So I understand.

[00:19:05] Speaker 02:
So is this your argument that we don't even actually have to accept the inherency position that there was an alternative theory, which was the combination of Middlebrook and Littleworth teaching this, and that the board alternatively credited that as well?

[00:19:22] Speaker 00:
That's exactly correct, Your Honor.

[00:19:24] Speaker 00:
And that issue also isn't impacted by the claim construction issue.

[00:19:27] Speaker 00:
And I can address claim construction if you'd like, but otherwise I can turn to motivation to combine.

[00:19:31] Speaker 03:
I would like you to address it.

[00:19:32] Speaker 03:
I just want to make sure I understand.

[00:19:33] Speaker 03:
Is your position that the board did not implicitly construe this term or that it did implicitly construe it to not have any accuracy limitation and that that is correct?

[00:19:49] Speaker 00:
I think the board certainly made a statement about what the claim

[00:19:53] Speaker 00:
doesn't require.

[00:19:54] Speaker 00:
And I don't think that raises to the level of claim construction per se.

[00:20:00] Speaker 00:
I think what the board was saying was that Littleworth doesn't meet the plain language of the claims, which is consistent, in fact, with what EGLE view said in its opening brief, which is the claims do not require a precise level of accuracy in the reference pitch calculation slash determination.

[00:20:15] Speaker 03:
Do we have to figure out if that's an exercise in claim construction or just decide whether that's a correct understanding of the claims?

[00:20:23] Speaker 00:
I think you could just decide that it's a correct understanding of the application of the art to the claims here.

[00:20:30] Speaker 00:
And indeed, in any case, that issue was waived.

[00:20:33] Speaker 00:
In fact, this very same phrasing that Eagleview is now sort of glomming onto in the final written decision was in the institution decision itself too, at page 40 to 41.

[00:20:43] Speaker 00:
That's not in the appendix, unfortunately.

[00:20:46] Speaker 00:
But there too, in fact, the board made the same statement

[00:20:49] Speaker 00:
about Littleworth regarding the accuracy of sort of a particular measurement in Littleworth.

[00:20:56] Speaker 00:
And in fact, too, it's worth probably mentioning that with respect to Littleworth, that the place where this accuracy question arose was a disclosure in Littleworth about one of the particular models.

[00:21:08] Speaker 00:
And that model, they said, they determined that the appropriate sort of accuracy limitations within that model would be 150 millimeters for certain types of

[00:21:18] Speaker 00:
of aspects of the model and 30 millimeters for other aspects of the model.

[00:21:23] Speaker 00:
And then, in fact, what they did was they relied on the 30 millimeter accuracy sort of limitation rather than 150 millimeter.

[00:21:33] Speaker 00:
So the 150 millimeter issue, which was why this whole issue about accuracy arose in the first place, was never actually used in a model for Littleworth anyway.

[00:21:45] Speaker 00:
Thank you, Your Honor.

[00:21:47] Speaker 00:
The board here considered and rejected Eagleview's arguments about the applicability of Linder to Littleworth.

[00:21:53] Speaker 00:
Eagleview argues that it wouldn't have been motivated to combine because of these expected inaccuracies from combining Littleworth and Linder, but the teachings of Linder were found to be applicable to Littleworth regardless of whether one is limited to stereoscopic and regardless of, and that's supported by substantial evidence and is what the board found.

[00:22:13] Speaker 00:
The disclosures in Linder, which described the images used in its correlation and 3D model generation process, are required to use two or more photos from the same object, but taken from different positions.

[00:22:29] Speaker 00:
That's applicable to Littleworth, and indeed, that's what the board found.

[00:22:34] Speaker 00:
So regardless of whether Linder is limited to stereoscopic images or not, what the board found and what the expert said,

[00:22:42] Speaker 00:
was that that doesn't matter.

[00:22:44] Speaker 00:
All that's required is that you have two images with sufficient overlap and you have that here.

[00:22:50] Speaker 03:
Does it matter if some of the claims that are challenged say the pair of images are not stereoscopic?

[00:22:59] Speaker 03:
Is the analysis the same either way?

[00:23:01] Speaker 00:
The analysis is the same either way because it doesn't require, there's no requirement that the image pairs be stereoscopic image pairs in order to do the combination.

[00:23:10] Speaker 00:
That's indeed what the board found.

[00:23:12] Speaker 04:
Dr. Bajaj said the contrary, right?

[00:23:15] Speaker 00:
He did, but that was a factual determination.

[00:23:18] Speaker 00:
Our expert indeed said that you would look at these, you would look at Linder, you would understand Linder to simply require with respect to stereoscopic images that there is sufficient overlap between the two images, but that there is enough, also that there's enough offset between the two images so that you can get the 3D modeling.

[00:23:37] Speaker 00:
If you don't have any offset between the two images, you wouldn't be able to get the 3D modeling.

[00:23:41] Speaker 00:
So when we're talking about being able to see from your eyes, that's because the eyes are coming from two different places in space.

[00:23:49] Speaker 04:
I guess it would work if you have two completely disparate images.

[00:23:54] Speaker 04:
One top view, one oblique view.

[00:23:56] Speaker 00:
If you had two images with no overlap, then you wouldn't have the control points.

[00:24:01] Speaker 00:
And no, it wouldn't work.

[00:24:01] Speaker 00:
But that's not what we're talking about here.

[00:24:03] Speaker 00:
There's no dispute as to the images in Littleworth being overlapping.

[00:24:07] Speaker 00:
The question is simply whether they are stereoscopic or not.

[00:24:11] Speaker 04:
Is there co-pending litigation going on?

[00:24:14] Speaker 00:
There is co-pending litigation.

[00:24:16] Speaker 04:
What's the status of that?

[00:24:18] Speaker 00:
I believe it's currently stayed, Your Honor.

[00:24:22] Speaker 00:
Unless there are other questions, I'll give the time back.

[00:24:24] Speaker 02:
Okay, thank you, Counsel.

[00:24:26] Speaker 02:
We sue.

[00:24:26] Speaker 02:
I'll restore two minutes of rebuttal.

[00:24:32] Speaker 01:
I just want to make one point, Your Honor.

[00:24:35] Speaker 01:
So, Counsel read out a part of

[00:24:39] Speaker 01:
Linder at appendix 2029, it is the last sentence in Linder that says, if we have two or more photos from the same object but taken at different positions, we may easily calculate 3D coordinates.

[00:24:53] Speaker 01:
The very beginning of that sentence, the same sentence says that Linder is referring to a principle called stereoscopic viewing.

[00:25:01] Speaker 01:
And again, that's the vision from your two eyes.

[00:25:04] Speaker 01:
So that same sentence is saying the two different positions that Linder is talking about is stereoscopic pairs or similar perspectives.

[00:25:12] Speaker 01:
And Linder clarifies that even in the immediately preceding paragraph, Linder is saying that the different positions are the left and right eye.

[00:25:23] Speaker 01:
And so Linder, I mean this finding by the board that is supported by this part of Linder only refers to stereoscopic pairs.

[00:25:34] Speaker 01:
And so for that reason, there is no motivation to combine and there's no substantial evidence supporting the board's decision.

[00:25:41] Speaker 01:
Equal View respectfully ask the court to reverse or vacate and remand if there are no further questions.

[00:25:47] Speaker 02:
Okay, thank you, counsel.

[00:25:48] Speaker 02:
This case is taken under submission.

[00:25:50] Speaker 02:
I thank both the counsel.