[00:00:00] Speaker 02:
We have four argued cases this morning.

[00:00:02] Speaker 02:
The first is number 24, 1584, Tesla Inc.

[00:00:06] Speaker 02:
versus Charge Fusion Technology, Mr. Mark Whaley.

[00:00:12] Speaker 03:
Good morning.

[00:00:13] Speaker 03:
Paul Margulies on behalf of Tesla.

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

[00:00:17] Speaker 03:
There are two main issues for the court to consider in this appeal.

[00:00:20] Speaker 03:
First, did the PTEP construe the two claim limitations at issue, the charging schedule limitation and the charging control limitation?

[00:00:28] Speaker 03:
We think it's clear from the final written decision that the board did establish the boundaries and meaning of the claims in its analysis of these terms and thereby construe them.

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The second issue, were the PTAB's constructions erroneous?

[00:00:39] Speaker 03:
The answer here is also yes.

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The board impermissibly imported limitations from the specification that come from different embodiments that are claimed and deviate from the plain meaning of the claim terms without lexicography or disclaimer.

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Turning to the first issue, did claim construction occur?

[00:00:54] Speaker 03:
The board implicitly construed the claim terms, so even without an explicit construction, there are explicit statements in the final written decision that illustrate that it occurred.

[00:01:04] Speaker 04:
On appendix page... Is following the plain and ordinary meaning of a claim term a claim construction, even an implicit claim construction in your view?

[00:01:16] Speaker 04:
I mean, both sides said we're very comfortable with plain and ordinary meaning.

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So there's no need for a formal claim construction.

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And then I'm just wondering what if the board, in fact, did apply the plain and ordinary meaning of the relevant claim terms?

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Then could it be said that there was actually an implicit claim construction as you would pose it?

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I think, Your Honor, if the board had applied the plain and ordinary meaning,

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then we probably wouldn't be here.

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We don't believe that the board did apply the Plainton Ordinary Meeting.

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Even though they said they were, we believe that the final written decision illustrates that specific requirements were read into the claims from the specification in violation of that meeting.

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On page 20, appendix page 20 of the final written decision, the board says petitioner, quote, does nothing to address the requirement that it's the instructions executed by the processor

[00:02:15] Speaker 03:
that control charging and not simply the user manually initiating the charging.

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The board explicitly interprets the claim this way to exclude the user manually initiating the charging.

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But that exclusion is nowhere in the claims.

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The view that the board expressed here informed its conclusion overall in the charging schedule limitation.

[00:02:36] Speaker 04:
On page two.

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I thought the board was essentially relying on this

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discussion in the claim about instructions when executed by the processing devices result in the increasing of the charge.

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And so therefore, the board necessarily is saying it's the execution of the instructions that's causing the increase in the charge.

[00:03:01] Speaker 03:
Your Honor, respectfully, what the Board says is that it's the execution of instructions that control vehicle charging in accordance with the charging schedule.

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We don't dispute that it has to be instruction.

[00:03:12] Speaker 04:
We're all calling it the charging control limitation, right?

[00:03:16] Speaker 03:
We are because the Board did, Your Honor.

[00:03:17] Speaker 04:
Well, then that's what's happening here about increasing the charge.

[00:03:21] Speaker 04:
So what is wrong with the view of the claim that

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there are these instructions.

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They're stored in a non-transitory memory device.

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And then the processor is going to execute those instructions.

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And when the processor does execute the instructions, a whole bunch of different actions occur.

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And they're recited in this claim, receiving information, computing a charging schedule, displaying the charging status of the electric vehicle, and also increasing the level of charge of the battery.

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I mean, that's pretty standard computer processing type claim where you execute the instructions, lots of things occur.

[00:04:05] Speaker 03:
Right.

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And that is explicit claim language.

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And that is not what we're disputing.

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What we're disputing is when the board read in a requirement that in that particular claim step that there'd be control of the charging and that the charging be initiated by that control.

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Initiating and control are not in the claim.

[00:04:23] Speaker 02:
If I understand, I mean there's a fine line between claim construction and applying a plain and ordinary meeting sometimes.

[00:04:31] Speaker 02:
But as I understand it, your contention is that Cato, prior art Cato, creates a charging schedule.

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And that the creation of that charging schedule satisfies both of the limitations that we're talking about here now, correct?

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the creation and the use of the charging schedule.

[00:04:53] Speaker 02:
Yeah.

[00:04:55] Speaker 02:
Correct.

[00:04:55] Speaker 02:
Right.

[00:04:56] Speaker 02:
So you're saying that to construe the second limitation that is increasing the charge level, which happens any time you start charging, that that is done in Cato because it sets a schedule

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And as soon as the processor starts the schedule, the instructions start the schedule, create the schedule.

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And if you follow the schedule, you increase the charge.

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Is that a fair statement of what you're arguing?

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So there is one nuance, Your Honor.

[00:05:35] Speaker 03:
In general, yes.

[00:05:35] Speaker 03:
But I just want to be clear that in CATA, our position is that it is increasing the charge once the user plugs in the charger.

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And increasing doesn't require initiating.

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It doesn't require controlling.

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And we're talking about electric vehicles here, not pumping gas.

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So the claim has an electrical charging system.

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I confess I'm confused by what you're saying.

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It seems to me that the claim requires instructions.

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And the instructions are, as I understood your argument, is creating the charging schedule.

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And following this charging schedule charges the battery, and that satisfies the limitation.

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Correct.

[00:06:18] Speaker 03:
That I agree with, yes.

[00:06:20] Speaker 02:
And is your theory that somehow the board is saying that there has to be a direct instruction to start charging as opposed to creating a schedule?

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Is that the claim limitation difference that you see there?

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We do, Your Honor, that the board is requiring

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not just some sort of use of the schedule, but actually initiating the charge via the schedule.

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That is the fundamental difference.

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The board took the position that the claims require charging.

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We started only after the vehicle is plugged in, based on some examples in the specification.

[00:07:02] Speaker 02:
It's sort of like a direct versus indirect issue, right?

[00:07:06] Speaker 02:
whether the instructions have to directly start the charge or they can indirectly start the charge by creating a schedule which, if followed, grades the charge.

[00:07:17] Speaker 03:
Even more so, Your Honor, I would say that the claim doesn't actually speak to this point, that as long as the charging is occurring, increasing charging, occurs under the auspices of the

[00:07:30] Speaker 03:
claimed instructions, then that fulfills the claim limitation.

[00:07:32] Speaker 04:
Yeah, but it's still defined by executing instructions that result in the increasing of the charge.

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So you can't delink those two passages in the claim like you want to.

[00:07:46] Speaker 04:
So, I mean, it seems like you're saying that this increasing step

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can be a human actor that plugs in the car into the charging station and that'll satisfy this claim.

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And it's just unclear to me from the claim if it's really structured in that way that

[00:08:16] Speaker 04:
It's based on that this claim is simply calling for a processor with instructions to compute a charging schedule and then a human being to go run off with that charging schedule and then go to a charging station and then follow the recipe of the charging schedule by plugging in the car at the time that the charging schedule on a piece of paper says it's time to charge the car.

[00:08:46] Speaker 04:
So a few points, Your Honor, in response.

[00:08:49] Speaker 04:
The whole patent specification is about something called intelligent charging.

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It's all about a computerized means of trying to choose, based on computer instructions, exactly when is the right time to begin charging and have the charging occur.

[00:09:11] Speaker 04:
And in other time windows, not have any charging happening.

[00:09:15] Speaker 04:
even though the whole time the car is literally plugged into a charging station.

[00:09:20] Speaker 03:
Well, Your Honor, first I'd point out there's a bit of a delta between the specification and the claims.

[00:09:25] Speaker 03:
I think the specification... Maybe.

[00:09:26] Speaker 03:
...goes back to 2009.

[00:09:27] Speaker 03:
Maybe.

[00:09:27] Speaker 04:
That depends.

[00:09:28] Speaker 04:
That's your conclusion.

[00:09:31] Speaker 03:
Well, at least different in time, 2009 versus 2021 when the patent issued.

[00:09:35] Speaker 03:
But in any event, we are not disagreeing that it has to be instructions that are involved in increasing.

[00:09:46] Speaker 04:
What we're saying is, do you ever provide a claim construction for the term result in?

[00:09:53] Speaker 04:
I don't think in your petition or in your reply or during your hearing before the board or your briefs to us, you ever say, oh, result in can actually be something quite indirect where something happens, instructions executed, and then

[00:10:15] Speaker 04:
through a chain of events after the execution of those instructions, eventually there will be a result and that eventual ultimate result will be an increase in charge of a battery.

[00:10:27] Speaker 04:
I don't think I've seen you make that argument at any point along the way, but there are different definitions for result in that just pretty clearly say it's the same thing as cause, cause and effect.

[00:10:41] Speaker 04:
You know, you do execute instructions, and that causes an increase in charge.

[00:10:47] Speaker 03:
So, Your Honor, again, we don't disagree with that read of the claim, but I do think the claim is structured differently than your view, respectfully, in terms of this is a claim that is directed to a driver who is on a road trip, essentially, going from stop to stop charger to charger between an origin and a destination.

[00:11:09] Speaker 03:
That is different than the example in the specification that the board relied on where a car is parked for eight hours and the schedule chooses which intervals charge will occur.

[00:11:21] Speaker 03:
The charging schedule is a plan time when the car arrives at the charging station.

[00:11:25] Speaker 03:
It's not an actual trigger to initiate charging.

[00:11:28] Speaker 03:
And the word initiate is simply not in the claims.

[00:11:31] Speaker 03:
We agree that the processor has to be involved in increasing

[00:11:36] Speaker 03:
in accordance with the charging schedule, a level of charge.

[00:11:38] Speaker 02:
What you're saying is that the processor sets the schedule and following the schedule increases the charge.

[00:11:45] Speaker 03:
I'm sorry, say that again, Your Honor.

[00:11:47] Speaker 02:
You're saying that the processor creates the schedule and that following the schedule results in charging, increasing the charge.

[00:11:55] Speaker 03:
Yes.

[00:11:56] Speaker 02:
Right?

[00:11:56] Speaker 02:
And the question is whether that satisfies the claim limitation.

[00:12:01] Speaker 03:
That is the question, Your Honor, but I think it's also a question of whether the board applied

[00:12:05] Speaker 03:
a claim construction here.

[00:12:07] Speaker 04:
Right.

[00:12:07] Speaker 04:
And you're saying it's the human actor that would be following the charging schedule.

[00:12:15] Speaker 04:
It would be a human being saying, oh, I have a charging schedule print out here.

[00:12:21] Speaker 04:
And it says, I need to begin charging at 2 PM.

[00:12:24] Speaker 04:
So I'm going to sit here and wait until 2 PM.

[00:12:27] Speaker 04:
And then I'm going to plug in my car into this charging station.

[00:12:30] Speaker 04:
And then I see my charging schedule print out says,

[00:12:34] Speaker 04:
stop charging at 3.30 p.m.

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So I'll wait here until 3.30 p.m.

[00:12:39] Speaker 04:
and then I'll de-plug my car.

[00:12:41] Speaker 04:
That seems to be the way you understand this claim.

[00:12:45] Speaker 03:
So, Your Honor, I disagree with that because all our view is is that increasing in accordance with the charging schedule is a minimum requirement.

[00:12:54] Speaker 03:
The claim is broad and the specification talks about an electrical charging system being

[00:12:59] Speaker 03:
operative to conduct, manage, schedule, and or otherwise facilitate the charging of one or more vehicles.

[00:13:05] Speaker 03:
When you plug in your car into an electric charger, there is a processor doing that.

[00:13:09] Speaker 04:
It says conduct right there.

[00:13:10] Speaker 04:
So it's the instructions that are conducting the project.

[00:13:15] Speaker 03:
They are, but why can't a human plug in?

[00:13:16] Speaker 03:
That is the issue.

[00:13:19] Speaker 03:
Following the instruction.

[00:13:21] Speaker 03:
Following the instruction.

[00:13:22] Speaker 03:
Well, does the human have to follow the instruction?

[00:13:24] Speaker 03:
I would submit he does not.

[00:13:25] Speaker 02:
But in any event, I believe, Your Honor, I have to follow the instruction.

[00:13:29] Speaker 02:
I thought the whole idea here was that the processor creates an instruction, that is a schedule, and the human being follows the instruction, the charging starts, and that is an instruction that results in increasing the charge.

[00:13:45] Speaker 02:
No?

[00:13:46] Speaker 03:
I believe the processor has to follow the schedule.

[00:13:49] Speaker 03:
Yes?

[00:13:51] Speaker 03:
Correct, Your Honor, but the processor is the one that has to follow the schedule, according to the claim language.

[00:13:56] Speaker 03:
The processor has to follow instructions that increase in accordance with the charging schedule.

[00:14:01] Speaker 03:
Whether a human can be involved, we can look to the college network.

[00:14:04] Speaker 04:
What does that mean, the processor has to follow the charging schedule?

[00:14:06] Speaker 04:
I mean, I agree with you, but now I'm confused with how that fits with your theory of the case.

[00:14:16] Speaker 03:
So we read the claim, I think as you do, Your Honor, that the

[00:14:22] Speaker 03:
non-transitory memory storing instructions that are executed result in increasing.

[00:14:27] Speaker 03:
So why can't a human be involved?

[00:14:29] Speaker 03:
Yes, the processor has to be involved, but also a human can be involved.

[00:14:32] Speaker 03:
And we cite to the CollegeNet case in our brief, a human can be involved in a comprising claim without undermining the term automatically.

[00:14:39] Speaker 04:
How is the processor involved?

[00:14:41] Speaker 04:
I mean, you're saying we both agree that the processor is involved.

[00:14:45] Speaker 04:
I certainly believe that, but I don't understand your conception of how the processor is involved.

[00:14:50] Speaker 03:
So in the disclosure of Cato, the machine... No, no, no, not Cato, I mean the claim.

[00:14:57] Speaker 03:
In the claim, the processor runs software that increases in accordance with the charging... Can the processor take into account time of day rates?

[00:15:07] Speaker 03:
It can, and that is discussed in the specification.

[00:15:11] Speaker 01:
So that's suggesting a scheduled start time?

[00:15:15] Speaker 01:
I'm sorry, say that again, Your Honor?

[00:15:16] Speaker 01:
It suggests a scheduled start time, doesn't it?

[00:15:20] Speaker 01:
If the processor's taken into account time of day rates, isn't that suggesting they scheduled start time?

[00:15:28] Speaker 03:
I believe that's right.

[00:15:30] Speaker 01:
So the processor does more than just sit there, right?

[00:15:34] Speaker 03:
Absolutely, Your Honor.

[00:15:38] Speaker 03:
I see I'm way past my time.

[00:15:40] Speaker 03:
So unless there are any further questions, I will cede.

[00:15:42] Speaker 02:
All right, we'll give you two minutes for a minute.

[00:15:56] Speaker 00:
May it please the court, counsel.

[00:15:59] Speaker 00:
I'd like to go right to some of the questions.

[00:16:02] Speaker 00:
First of all, what the claim requires is that there's a non-transitory memory and processors that execute on that memory and do something.

[00:16:13] Speaker 00:
And as your honor picked up on, one of the things it does is that it increases the level of charge in the battery.

[00:16:20] Speaker 02:
If you look at the claim on 123, the formatting in the back and the inside, it seems to me incorrect.

[00:16:33] Speaker 02:
But if you look at the actual claim, there's a computing step, right?

[00:16:40] Speaker 02:
And this increasing the charge is not part of the computing step.

[00:16:44] Speaker 02:
It doesn't have to compute to increase the charge.

[00:16:48] Speaker 00:
But it has to issue, I'm sorry.

[00:16:51] Speaker 02:
Correct.

[00:16:52] Speaker 02:
So we're not dealing with the computing step, we're dealing with the step of instructions that result in increasing the charge, right?

[00:17:03] Speaker 02:
Correct, Your Honor.

[00:17:05] Speaker 02:
Okay, so why doesn't the creation of the processor creating a set of instructions under CATO satisfy that?

[00:17:15] Speaker 00:
Well, for a couple of reasons.

[00:17:16] Speaker 00:
First of all, CATO doesn't really

[00:17:18] Speaker 00:
create a charging schedule.

[00:17:19] Speaker 00:
CATO is a travel system.

[00:17:23] Speaker 00:
It plans stops and starts, and as the board found, it provides an available window for charging.

[00:17:29] Speaker 00:
And I think one of the most critical sentences in CATO, and the board actually picked up on it in their decision at page 15 of the appendix, is that CATO further explains when the time which can be spent at the planned charging point is shorter than the time required for charging, although the battery may

[00:17:48] Speaker 00:
Remaining amount SOC does not reach 100 percent.

[00:17:51] Speaker 00:
The vehicle goes to the next destination.

[00:17:53] Speaker 00:
That's a plan.

[00:17:54] Speaker 00:
That's a route planning.

[00:17:55] Speaker 00:
That's not, that's not creative.

[00:17:57] Speaker 04:
It does talk about an arrival time and a departure time.

[00:18:00] Speaker 04:
It does.

[00:18:01] Speaker 04:
And it seems to line up the idea that that's when you would begin your charge and that's when you would end your charge.

[00:18:08] Speaker 04:
And you're absolutely correct, Your Honor.

[00:18:11] Speaker 04:
follow back to Judge Dyke's more specific question.

[00:18:15] Speaker 04:
And that question just isolated down to the so-called charging control limitation, not the charging schedule limitation, which is what you're talking about now.

[00:18:23] Speaker 00:
Correct.

[00:18:23] Speaker 00:
Yeah, sure.

[00:18:24] Speaker 04:
Let's assume, for purposes of Judge Dyke's question, that the board was wrong about the charging schedule limitation.

[00:18:31] Speaker 04:
So that's your first argument why Cato doesn't have a charging control limitation.

[00:18:37] Speaker 04:
It's based on your view that it

[00:18:39] Speaker 04:
Cato, likewise, doesn't have a charging schedule limitation.

[00:18:44] Speaker 04:
But put that to the side.

[00:18:45] Speaker 04:
Let's assume that Cato does have a charging schedule.

[00:18:50] Speaker 04:
All right.

[00:18:51] Speaker 04:
Now why is it, in your view, that somehow Cato still lacks the charging control limitation?

[00:19:01] Speaker 04:
Because the claim about executing instructions that result in the increase of charge of the battery in accordance with the charging schedule

[00:19:09] Speaker 00:
Correct, because the claim requires, I think it's 1M as set out by Tesla, that the battery level increases as a result of instructions from the processor.

[00:19:22] Speaker 00:
Let's not, Tesla has this argument that somehow it requires that you plug in first.

[00:19:30] Speaker 00:
First of all, it's an electrical charging system.

[00:19:33] Speaker 00:
So there has to be access to electricity first.

[00:19:35] Speaker 02:
I don't understand.

[00:19:37] Speaker 00:
Under the preamble, this is an electric charging system.

[00:19:39] Speaker 02:
The theory is pretty simple.

[00:19:41] Speaker 02:
There's a charging schedule in CATO.

[00:19:45] Speaker 02:
And if you follow the charging schedule, you charge the car.

[00:19:48] Speaker 02:
And if you charge the car, you increase the charge.

[00:19:53] Speaker 00:
Well, that's a little bit, I think, to put a little bit of a finer point on it, Your Honor.

[00:19:58] Speaker 00:
What CATO says is that you're going to go to a series of stops.

[00:20:01] Speaker 00:
OK?

[00:20:02] Speaker 00:
And it doesn't set a scheduled start time.

[00:20:04] Speaker 00:
It just says once this trip starts, you're going to go to the first stop.

[00:20:07] Speaker 02:
You're back to the issue that Judge Chen asked you to assume that you lose on.

[00:20:13] Speaker 02:
And I want to be... There is a charging schedule created in Cato.

[00:20:23] Speaker 00:
There is a charging schedule, but it doesn't, the board found that it didn't include a scheduled start time.

[00:20:30] Speaker 02:
We're not talking about start time now.

[00:20:31] Speaker 02:
We're talking about increasing.

[00:20:33] Speaker 00:
But the claim requires that the charges.

[00:20:36] Speaker 00:
We're trying to take that away from you.

[00:20:38] Speaker 00:
I know.

[00:20:38] Speaker 00:
I understand that.

[00:20:40] Speaker 04:
I probably should just move off.

[00:20:41] Speaker 04:
Charging schedule, Cato has it.

[00:20:44] Speaker 04:
Start time, Cato has it.

[00:20:46] Speaker 04:
Stop time, Cato has it.

[00:20:47] Speaker 04:
So put that to the side.

[00:20:49] Speaker 04:
Now we're reducing the case down.

[00:20:51] Speaker 04:
Actually, the increasing the charge in accordance with the charging schedule.

[00:20:55] Speaker 04:
I'm going to hit one point and then I'll go to the question that you use your time how you want.

[00:21:00] Speaker 04:
I understand.

[00:21:00] Speaker 04:
That's the only thing on my mind.

[00:21:02] Speaker 04:
That's the only thing I can think about.

[00:21:04] Speaker 04:
Anything else you say will just go off into the air.

[00:21:07] Speaker 00:
Understood.

[00:21:08] Speaker 00:
History of my life.

[00:21:10] Speaker 00:
Cato doesn't have a scheduled stop time.

[00:21:12] Speaker 00:
It sets a duration of charge, which ultimately became a scheduled time.

[00:21:17] Speaker 00:
But let's talk about

[00:21:18] Speaker 00:
the control limitation.

[00:21:19] Speaker 00:
Let's talk about what we want to talk about.

[00:21:21] Speaker 00:
I'm trying to answer, I think that's what you're asking about, right?

[00:21:23] Speaker 02:
That is on the assumption that Judge Chen has asked you to follow, that there is a charging schedule set in CATA.

[00:21:32] Speaker 02:
Why doesn't following the charging schedule result in increasing the charge?

[00:21:38] Speaker 00:
Because it reads out the limitation that requires the processor to increase the charge, issue commands to issue increase.

[00:21:44] Speaker 00:
It takes that element out.

[00:21:46] Speaker 02:
Why?

[00:21:47] Speaker 02:
I mean, the processor sets the schedule.

[00:21:49] Speaker 02:
Following the schedule increases the charge.

[00:21:52] Speaker 02:
What's the matter with that?

[00:21:56] Speaker 00:
But Kato doesn't instruct to increase the charge.

[00:22:00] Speaker 00:
The only thing that happens in Kato is that the car gets plugged in.

[00:22:03] Speaker 00:
And the patent at page 109 in element one says that this is to overcome the prior art systems where plugging and unplugging would overcome the resistance of users

[00:22:15] Speaker 00:
plugging and unplugging a car.

[00:22:17] Speaker 00:
It's an intelligent system.

[00:22:20] Speaker 00:
And so once electricity is available, they say, one of the arguments is that this excludes charging that begins immediately when a user plugs in the vehicle.

[00:22:29] Speaker 01:
What is it that's missing from Cato that if it contained it would disclose the limitation?

[00:22:39] Speaker 00:
What's missing is what the board described at paragraph 15.

[00:22:44] Speaker 00:
or F15 is that the processor executes instructions to control vehicle charging in accordance with that schedule.

[00:22:53] Speaker 00:
That's what's missing.

[00:22:54] Speaker 00:
That's the plain language that the board used.

[00:22:56] Speaker 01:
And if Cato had that, then it would read on the limitation.

[00:22:59] Speaker 00:
If Cato had it, it would read all the limitations.

[00:23:01] Speaker 00:
I mean, we wouldn't be here, right?

[00:23:02] Speaker 00:
If Cato had, I mean, you could, I guess, I mean, I filed motions to change the facts.

[00:23:07] Speaker 00:
I've never won one because that's not in Cato.

[00:23:10] Speaker 00:
And this notion that somehow,

[00:23:12] Speaker 00:
That the boards engage in some super secret claim construction that precludes charging beginning immediately upon getting to the charge station.

[00:23:21] Speaker 00:
That's not accurate.

[00:23:22] Speaker 00:
If the microprocessor is executing instructions that say begin to charge immediately, then the claim limitations met.

[00:23:29] Speaker 00:
If the microprocessor says once you've plugged in, wait until the price of electricity comes down or wait until something else happens.

[00:23:36] Speaker 02:
We're not talking about that.

[00:23:38] Speaker 02:
That's not part of the claim here is waiting, is charging at a particular time when the cost of electricity might be less.

[00:23:47] Speaker 02:
That's not part of this claim, right?

[00:23:50] Speaker 00:
It's not.

[00:23:51] Speaker 00:
It's not part.

[00:23:52] Speaker 00:
Well, but it is, Your Honor.

[00:23:54] Speaker 00:
The processor has to increase

[00:23:57] Speaker 00:
the level of charge in the body in accordance with charge.

[00:23:59] Speaker 02:
You increase the level of charge any time you start charging, right?

[00:24:04] Speaker 00:
But that's not the processor doing it.

[00:24:06] Speaker 00:
No, I disagree with that.

[00:24:07] Speaker 00:
That's not a processor doing it.

[00:24:08] Speaker 00:
That's just somebody plugging in the car.

[00:24:11] Speaker 00:
And that's what the board had a problem with.

[00:24:13] Speaker 00:
What if the user gets to the next stop and decides not to plug the car in?

[00:24:21] Speaker 00:
And there's nothing in Cato that instructs that the CPU

[00:24:26] Speaker 00:
Does anything to issue instructions that when executed by the result in it.

[00:24:31] Speaker 02:
You in Cato tells you to create a charging schedule and tells you to follow it.

[00:24:38] Speaker 02:
If you follow it, you increase the charge.

[00:24:40] Speaker 00:
No, no, no.

[00:24:40] Speaker 00:
That's not what Cato does.

[00:24:41] Speaker 00:
And that's what the board found with Cato under the substantial evidence test.

[00:24:45] Speaker 00:
It's not what the board found.

[00:24:47] Speaker 00:
The board found that Cato taught a window or an availability for the opportunity to charge.

[00:24:56] Speaker 00:
It also taught the CPU did say that the go from 0 to 100 will take 10 minutes, 2 minutes, some amount of time.

[00:25:07] Speaker 00:
And so under KDOM, what the board found is that it wasn't the microprocessor that was computing, well, it would compute the duration, but it wouldn't compute the scheduled start time.

[00:25:18] Speaker 00:
Because the scheduled start time would be when you got there.

[00:25:21] Speaker 00:
And it doesn't compute an indication of a scheduled stop time.

[00:25:25] Speaker 00:
Cato didn't teach any of that stuff.

[00:25:27] Speaker 00:
And the board looked at paragraphs 53 through 55, which were the paragraphs upon which Tesla relied and found that there was nothing in there that taught the processor increasing the level of charge in the battery.

[00:25:43] Speaker 00:
And the board found, and I think correctly so, that simply plugging it in isn't enough.

[00:25:48] Speaker 00:
It doesn't preclude plugging it in and having it start immediately.

[00:25:51] Speaker 00:
But this notion that somehow the board engaged in a claim construction

[00:25:55] Speaker 00:
that eliminated charging immediately.

[00:25:58] Speaker 00:
It did no such thing.

[00:26:00] Speaker 00:
It read all the claim limitations, including one C and the other elements, and indicated that in order for the charge to increase, it had to be done so as a result of an instruction from the processor.

[00:26:11] Speaker 00:
And just plugging it in didn't meet that claim limitation.

[00:26:20] Speaker 00:
I mean, we're up here on two issues.

[00:26:21] Speaker 00:
And one was whether or not the board engaged in proper claim construction.

[00:26:25] Speaker 00:
The board's plan and ordinary meaning is set forth in paragraph 11 at page 15.

[00:26:31] Speaker 00:
They followed the right law.

[00:26:33] Speaker 00:
There was no dispute below between the parties about the ordinary meaning of these claim terms, none.

[00:26:40] Speaker 00:
And so the board following the law of this circuit indicated that they were only to construe terms that are in dispute and only to the extent necessary to resolve the controversy.

[00:26:52] Speaker 00:
And the board did do that.

[00:26:54] Speaker 00:
The Planned and Ordinary meeting is in there.

[00:26:56] Speaker 00:
And then the board made findings, a fact, that were straightforward.

[00:27:03] Speaker 00:
They indicated that at page 19, absent pervasive explanation and evidence from petitioner, the proponents of the evidence before us does not support petitioner's assertion that the beginning of an available time window for charging is a scheduled start time

[00:27:22] Speaker 00:
Or that the end of that window is a scheduled stop time for charging.

[00:27:27] Speaker 00:
We note again the petitioner relies on the express teachings of Cato.

[00:27:31] Speaker 00:
The petition does not assert it would have been obvious to employ a scheduled start time based on any modification to Cato's teachings.

[00:27:38] Speaker 00:
Our decision is limited to the particular basis for the challenge advanced by the petitioner.

[00:27:42] Speaker 00:
They made findings of fact on the review of Cato.

[00:27:46] Speaker 00:
They executed and used the proper claim for charging.

[00:27:50] Speaker 00:
With respect to the charging control limitation, we see no explanation or even allegation.

[00:27:55] Speaker 00:
Niketo teaches instructions that when executed by one or more processing devices results in increasing, in accordance with the charging schedule, a level of charge of the battery.

[00:28:04] Speaker 00:
Because remember, your honor, it's not just arriving at the charging station that goes into this intelligent system.

[00:28:11] Speaker 00:
It are other user parameters that are provided.

[00:28:14] Speaker 00:
They're talked about in the specification.

[00:28:16] Speaker 00:
And get to one of the ones that they talked about.

[00:28:19] Speaker 00:
if when they get to the scheduled start time as calculated by the processor, it may or may not start charging at that point under the intelligence system as claimed.

[00:28:30] Speaker 00:
There's nothing in Cato at all that teaches anything whatsoever about starting to charge the minute you get to a charging station.

[00:28:40] Speaker 00:
And so, Your Honor, I respectfully disagree that Cato teaches a charging schedule that's been mapped out.

[00:28:46] Speaker 00:
Cato says you go from A to B.

[00:28:49] Speaker 01:
Does Cato teach a schedule start time?

[00:28:53] Speaker 00:
If you ask Judge Dyke, he'd say yes.

[00:28:54] Speaker 00:
But if you ask me, I think I don't think so.

[00:28:56] Speaker 00:
I don't think I don't think it does.

[00:28:58] Speaker 00:
I know how Judge Dyke is.

[00:29:00] Speaker 00:
I know.

[00:29:00] Speaker 00:
I know.

[00:29:02] Speaker 00:
No, I don't think it does teach a schedule start time.

[00:29:04] Speaker 00:
Cato provides a trip planning software that says when you get to these places, because you're going to go to the movies, you're going to go to the museum, you're going to go.

[00:29:13] Speaker 00:
You're going to go to any one of a number of places that when you get there, you can begin to charge.

[00:29:19] Speaker 00:
And so there's no scheduled start time.

[00:29:23] Speaker 00:
A scheduled start time would be you got to drive to 2 o'clock, 2.15, and then start to charge.

[00:29:31] Speaker 00:
So Cato, I understand what Judge Blake is saying.

[00:29:34] Speaker 00:
It says go to these places, and you understand that you're going to start charging when you get to those places.

[00:29:39] Speaker 00:
And that's a charging schedule.

[00:29:41] Speaker 00:
And when you charge, you've done both claim elements.

[00:29:44] Speaker 00:
But I disagree, I think it's an overly broad reading of Cato and I think the board recognized that Cato didn't teach that.

[00:29:52] Speaker 00:
It just didn't teach that.

[00:29:54] Speaker 00:
So no.

[00:29:57] Speaker 00:
Anything else?

[00:30:01] Speaker 00:
Okay, thank you.

[00:30:02] Speaker 00:
I actually, I'm sorry, I do want to go through, they claim that they're, I've got 54 seconds.

[00:30:07] Speaker 00:
They claim that there are four things wrong with the court's claim construction.

[00:30:10] Speaker 00:
One, that it required charging to be started after the vehicle's plugged in.

[00:30:13] Speaker 00:
That's not true.

[00:30:14] Speaker 00:
It requires charging to start increasing the battery in accordance with the instructions.

[00:30:20] Speaker 00:
They claim it excludes charging that begins immediately when the user plugs in the vehicle.

[00:30:25] Speaker 00:
It does no such thing.

[00:30:27] Speaker 00:
It requires initiating vehicle charging to be actively controlled.

[00:30:31] Speaker 00:
And that's just, it's a passive system.

[00:30:34] Speaker 00:
It doesn't do that.

[00:30:35] Speaker 00:
And it excludes the user manually starting and stopping the charge, which is nothing more than the prior art over which we distinguished.

[00:30:41] Speaker 00:
and has nothing to do with the execution of the processor to meet that claim element.

[00:30:46] Speaker 00:
And the last thing is that they provided a claim instruction for both of the limitations, but neither one of them solves their problem for the first time on appeal because neither one of them addressed the fact that it's a processor issuing instructions that results in the indicated elements.

[00:31:01] Speaker 00:
Thank you.

[00:31:01] Speaker 00:
Okay, we're out of time.

[00:31:02] Speaker 00:
Thank you.

[00:31:04] Speaker 02:
Mr. Morgan-Willis, you have two minutes.

[00:31:10] Speaker 03:
Thank you, Your Honor.

[00:31:11] Speaker 03:
First, I'll just say if we're at the point in here where we're disputing what Cato discloses, a remand would be appropriate for the board to consider that in the first instance.

[00:31:21] Speaker 03:
Moving back to the charging control limitation, we said in our reply brief that it was never disputed by charge fusion until the final written decision came out.

[00:31:33] Speaker 03:
In other words, there was no dispute that Cato disclosed that.

[00:31:35] Speaker 03:
I didn't hear any disagreement, but that was something that came out in the board's final written decision only.

[00:31:44] Speaker 03:
Looking back at the processor resulting in increasing in accordance with the charging schedule, again, just to clarify, our position is the claim language does not preclude human involvement to plug in.

[00:31:57] Speaker 03:
Nothing in the claim says that a human can't be involved in plugging and physically connecting or electrically connecting.

[00:32:03] Speaker 03:
from being involved in that part of the charging process.

[00:32:08] Speaker 02:
Under the specification, there has to be some plug-in.

[00:32:11] Speaker 02:
I mean, it's not an automatic plug-in.

[00:32:14] Speaker 03:
Right.

[00:32:15] Speaker 03:
Either physical or wireless, but there has to be an electrical connection of some sort.

[00:32:19] Speaker 03:
And it's the board's construction, their implicit construction, but their construction that has read in that limitation into the claim where increasing just means the charging has to occur, not that it has to start.

[00:32:33] Speaker 04:
What if I wanted to bake a cake and then I go to ChatGPT and I say, can you give me a recipe for a carrot cake?

[00:32:45] Speaker 04:
And then ChatGPT gives me the recipe.

[00:32:48] Speaker 04:
And then I look at that recipe and then I go make the carrot cake based on that recipe.

[00:32:55] Speaker 04:
Is it fair to say that ChatGPT caused the creation of that cake?

[00:33:01] Speaker 03:
I think ChatGPT put out a recipe of the cake, but I'm not sure I'm following your analogy.

[00:33:08] Speaker 04:
Well, who caused the creation of the cake?

[00:33:12] Speaker 04:
Me or ChatGPT?

[00:33:15] Speaker 03:
You prompted ChatGPT.

[00:33:16] Speaker 03:
In the case of the claim, I would say that the charging schedule is computed by the processor and the charge, even if physically connected by the human, is controlled by the processor as well.

[00:33:32] Speaker 04:
How is it controlled by the processor?

[00:33:36] Speaker 03:
Again, Your Honor, this sounds like a question about Cato itself, but we're talking about... We're talking about the claim, or at least this example.

[00:33:44] Speaker 03:
That the processor requires, executes instructions that increase the charge.

[00:33:51] Speaker 03:
Not that they have to start the increasing the charge, they just have to be involved in the increasing the charge.

[00:33:55] Speaker 02:
It doesn't say control the charge.

[00:33:56] Speaker 03:
It does not say control, it does not say initiate, and that is our position.

[00:34:01] Speaker 03:
I see I'm over my time again.

[00:34:02] Speaker 03:
If there's no other questions, I will.