[00:00:00] Speaker 00:
appeal we just heard, this proceeding should at minimum be remanded to the board for consideration of four separate grounds that were set forth in Google's petition.

[00:00:10] Speaker 01:
Well, can I ask you just a detail about that?

[00:00:13] Speaker 01:
If we were to affirm on this case, and it deals with Sony, or Sony, however you pronounce this reference, that was one of the grounds not instituted on, an anticipatory reference of Sony.

[00:00:27] Speaker 01:
That's not really needed for a do-over, right?

[00:00:29] Speaker 01:
The other grounds might be, but that particular one would be kind of redundant, would it not?

[00:00:35] Speaker 00:
Correct.

[00:00:36] Speaker 00:
But I think, to your question, if you find obviousness based on Sonne alone or in combination with Roy, then there is no need for remand because it fully addresses claims 45 and 46.

[00:00:49] Speaker 00:
No, that's right.

[00:00:50] Speaker 01:
I'm talking about in the event that we would affirm the current decision and remand it based on SAS, right?

[00:00:57] Speaker 00:
I can see the efficiency point.

[00:01:03] Speaker 00:
Frankly, I'm not sure whether under this court's precedent there's discretion to remand for less than all the instituted grounds.

[00:01:09] Speaker 01:
And there are three grounds that were not instituted on?

[00:01:12] Speaker 01:
There were four grounds.

[00:01:13] Speaker 01:
Four grounds that were not instituted.

[00:01:15] Speaker 01:
Correct, Your Honor.

[00:01:16] Speaker 01:
And three of the four involve references other than some?

[00:01:19] Speaker 00:
Exactly right, Your Honor.

[00:01:21] Speaker 00:
So also, like the companion appeal, I think the question here, the central question becomes whether a remand

[00:01:28] Speaker 00:
is even necessary because under a proper application of the board's construction of the term image vector entities, the record evidence uniformly and decisively demonstrates that SONY's congestion datasets, whether with SONY alone or the SONY reference in combination with ROI, render, disclose the term image vector entities and render claims 45 and 46

[00:01:56] Speaker 00:
unpatentable under section 103.

[00:01:59] Speaker 00:
Now, in its institution decision, the board construed the term image vector entities and the board maintained that construction in its final written decision.

[00:02:08] Speaker 00:
Specifically, the board construed image vector entities to mean a format of information representing an image to be displayed that includes a shape designating statement and a position designating statement used to draw the shape of a real entity.

[00:02:25] Speaker 00:
However, the board erred as a matter of law when it fundamentally misapplied that construction to Sony's congestion data sets by requiring more from the congestion data sets.

[00:02:36] Speaker 01:
I understand your argument.

[00:02:37] Speaker 01:
From my point of view, I mean, we hear these arguments a lot.

[00:02:40] Speaker 01:
I appreciate your trying to get this under a de novo standard of review.

[00:02:46] Speaker 01:
But let's assume for a moment.

[00:02:48] Speaker 01:
that we don't buy that.

[00:02:49] Speaker 01:
So you're under the umbrella of substantial evidence.

[00:02:53] Speaker 01:
Why don't you talk to us a little bit about, under that umbrella, how you need to reveal?

[00:02:57] Speaker 00:
Absolutely.

[00:02:58] Speaker 00:
So if you apply the construction appropriately, even under substantial evidence, I think a reversal is appropriate.

[00:03:07] Speaker 00:
Because as the Supreme Court makes clear in Dickinson v. Zirka, when they instituted or applied the substantial evidence standard to PTO review, they made clear that it's not a rubber stamp

[00:03:18] Speaker 00:
Review it requires a searching review a meaningful review of the entire record with evidence that both supports and attracts from board's finding here The record evidence is uniform and one-sided that Sony's congestion data sets under a proper construction disclosed image vector entities and the same applies with respect to the obviousness analysis under section 103 with Sony alone and

[00:03:45] Speaker 00:
or Sonya in combination with Roy.

[00:03:47] Speaker 00:
There was no evidence submitted by the patent owner that challenged whether, under this construction, that challenged whether Sonya discloses image vector entities.

[00:03:59] Speaker 00:
Likewise, there was no factual argument from the patent owner that the combination, that a person of ordinary skill in the art would have not made the combination of Roy applying Roy's vector-based data to Sonya.

[00:04:12] Speaker 00:
There was one argument that their expert raised

[00:04:14] Speaker 00:
which was that a person of ordinary skill and art wouldn't have not made the combination because our expert, like Michaelson, did not identify any specific defect.

[00:04:25] Speaker 00:
But that opinion is wrong as a matter of law, because as KSR makes clear, any need will support a basis for combining two references.

[00:04:37] Speaker 00:
Now, specifically with, I guess, the threshold question of under a proper construction, whether

[00:04:43] Speaker 00:
SONYA discloses congestion data sets.

[00:04:46] Speaker 00:
The board's construction required information representing an image to be displayed.

[00:04:51] Speaker 00:
Dr. Michelson's testimony explained through the view of how a person of ordinary skill and the art would understand SONYA that SONYA does expressly that.

[00:04:59] Speaker 00:
SONYA provides information about the location, the shape, the degree of traffic congestion, the direction of traffic congestion, and the location of traffic congestion.

[00:05:10] Speaker 01:
And that's precisely what's required by the board's construction, which is information representing... Did Sonya, just to clear, I'm getting all this confused, but did they disclose only the shape designating statement as being a straight line?

[00:05:27] Speaker 00:
Yes, Sonya does.

[00:05:28] Speaker 01:
Isn't it correct that the claims aren't limited to the shape being a straight line?

[00:05:34] Speaker 00:
Certainly, the claims are not limited to the shape being a straight line, but they certainly encompass the shape being a straight line.

[00:05:41] Speaker 00:
the 518 patent is broad enough to cover other shapes, but a line, the shape being a line, the 518 patent says, is even the most common shape designating statement.

[00:05:51] Speaker 00:
But not the only.

[00:05:52] Speaker 00:
Not the only, but the claims, I think we only need one shape, like a line, to be within the scope of the claims.

[00:06:02] Speaker 00:
And I would point in terms of substantial evidence here, the Sony reference itself at column

[00:06:10] Speaker 00:
two lines 40 through 45 discloses precisely what's required by the board's construction of an image vector entity.

[00:06:19] Speaker 00:
Again, the board said it's information representing an image to be displayed, and at column two, lines 40 to 45, SONE at page 700 of the appendix explains that each congestion data set includes, quote, a data item representing the position of the leading end of a congested road section,

[00:06:38] Speaker 00:
It also explains that the data sets includes, quote, a data item representing the direction of congestive traffic and a data item representing the length of congestion.

[00:06:48] Speaker 00:
That's precisely what's required by the board's construction.

[00:06:52] Speaker 00:
Now, the board's construction also sets forth a position designating statement and a shape designating statement.

[00:06:58] Speaker 00:
And we're happy to rest on the briefs on that issue unless there's any questions.

[00:07:02] Speaker 00:
So what I'd like to briefly just address is the 103 issue with SONE itself.

[00:07:08] Speaker 00:
and SONYA plus ROI.

[00:07:12] Speaker 00:
So SONYA, while not using the label vector format or vector data, discloses in substance precisely vector based data.

[00:07:21] Speaker 00:
In particular, the 518 patent itself states that a vector entity can be represented as a line between two position coordinates.

[00:07:29] Speaker 00:
And that's precisely what SONYA discloses, because it makes clear that the congestion data sets include two

[00:07:37] Speaker 00:
coordinate pairs based on a map coordinate system.

[00:07:40] Speaker 00:
And that's at A700, appendix 700, column 249, column 2, lines 49 to 56.

[00:07:48] Speaker 00:
Further, it was an uncontroverted testimony from Dr. Michelson that skilled artisans would have recognized that the coordinate pairs from Sone's congestion data set are nearly identical to the 518 patents discussion of an image vector entity.

[00:08:03] Speaker 00:
That's paragraph 30 of Dr. Michelson's

[00:08:07] Speaker 00:
declaration at appendix 520.

[00:08:11] Speaker 00:
Further, patent owner's own expert testified that SONE's coordinate pairs are vector information that would be used in a vector system.

[00:08:19] Speaker 00:
I think this case on SONE alone is precisely what the court explained in scanner technologies, which is that there's a relatively small logical gap between a prior art and a claim.

[00:08:29] Speaker 00:
In this case, it is disclosed by skilled artisans pursuing known options within her technical grasp.

[00:08:35] Speaker 00:
That's precisely the case here.

[00:08:36] Speaker 00:
And we'll add, because there's no dispute that at the relevant time period, there was two primary forms of formats for transmitting data, roster-based and vector-based.

[00:08:48] Speaker 00:
And finally, with respect to SONY and ROI, without citing any evidence, the board concluded that Google did not establish why skilled artisans would have converted SONY's congestion data sets into a vector-based format before transmitting them to a vehicle display.

[00:09:06] Speaker 00:
There was no evidence cited in the board's opinion for the simple reason that there was no evidence proffered by Pat Noner to challenge Dr. Michelson's testimony.

[00:09:15] Speaker 00:
And importantly, Dr. Michelson's unchallenged testimony addresses the very point that the board identified in explicit detail.

[00:09:23] Speaker 00:
First, Dr. Michelson explained that given Roy's teaching that using vector-based data would improve the speed and efficiency of transmitting data, Dr. Michelson explained

[00:09:34] Speaker 00:
that a person of ordinary schooling art would have known and would have been motivated to apply vector-based data to Sony's congestion data sets.

[00:09:42] Speaker 00:
Specifically, Your Honors, that's at paragraph 77 of Dr. Michelson's declaration at appendix pages 551 to 552 and paragraph 33 of his declaration at appendix page 1533.

[00:09:56] Speaker 00:
And finally,

[00:09:57] Speaker 00:
Given that Roy expressly teaches that improved resolution, faster image generation, and better zooming capabilities are possible because a map is generated with vector-based format that has already been downloaded, that's Roy's words, Dr. Michelson again explained that a person of ordinary skill reading that reference would understand it would be desirable to apply a vector-based format to Sony's teachings and transmit and receive the congestion data sets.

[00:10:26] Speaker 00:
using vector-based format.

[00:10:28] Speaker 00:
Unless there's any further questions, I'd like to save my time for rebuttal.

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

[00:10:38] Speaker 02:
Your Honors, I'd like to start again with the claims, just to refresh.

[00:10:42] Speaker 01:
Just to get it out of the way, on the SAS point.

[00:10:45] Speaker 01:
Yeah.

[00:10:45] Speaker 01:
I mean, because here, even if we were firm, it seems to me clear that we would have to

[00:10:52] Speaker 01:
based on SAS for the non-instituted grounds.

[00:10:55] Speaker 01:
And I'll just mention, I mean, there have been a couple cases that came out after you filed your brief, Adidas and bio-delivery sciences, where we essentially said that.

[00:11:04] Speaker 01:
So what is the basis for our not reviewing, not reverse, vague remanding on non-instituted grounds if we were to affirm?

[00:11:12] Speaker 02:
There are two.

[00:11:13] Speaker 02:
I will talk about those cases that you just cited, or actually cases on orders, because those actually, in those cases,

[00:11:21] Speaker 02:
those orders were made on a motion to remand before the appeal was heard.

[00:11:25] Speaker 02:
And I believe in the Adidas case, which at the very end Judge Moore says, in the opinion, we were doing this because there was a timely request for remand.

[00:11:36] Speaker 02:
And again, look at the PGS, which says, we don't want these piecemeal appeals.

[00:11:42] Speaker 02:
So the procedural posture of those cases was very, very different in that.

[00:11:47] Speaker 02:
The procedural postulate there was, with the exception of the PGS case, which was totally different for other reasons, a motion was filed before the appeal was heard.

[00:11:57] Speaker 02:
Here, the appeal has been heard, so there's no motion to remand.

[00:12:01] Speaker 02:
Now, should you remand?

[00:12:04] Speaker 02:
You should not, because under the appeal that's taken, which is under Section 706 of the Administrative Procedure Act,

[00:12:11] Speaker 02:
The analysis is not just whether there was an error by the board below.

[00:12:15] Speaker 02:
I will concede to you that under... Well, I'm not going to concede to you.

[00:12:19] Speaker 02:
Let's just for the sake of this argument for a second.

[00:12:22] Speaker 02:
Let's say you disagree with me that the board made an error.

[00:12:27] Speaker 02:
I actually don't think the board made an error under SAS for reasons I discussed in my brief.

[00:12:31] Speaker 02:
But let's say you say I disagree with you on that and that SAS is controlling.

[00:12:35] Speaker 02:
You still have the issue of is this error harmless?

[00:12:38] Speaker 02:
And I would say that this error would be harmless because the board has already made a finding below on these alternative grounds.

[00:12:44] Speaker 02:
There was no reasonable likelihood of success on the merits.

[00:12:48] Speaker 02:
So what's going to be the point of remanding this case?

[00:12:50] Speaker 02:
It's only going to serve to delay things.

[00:12:52] Speaker 02:
So that's number one.

[00:12:54] Speaker 01:
That is... I just don't understand how we do that.

[00:12:58] Speaker 01:
I mean, leaving aside your first argument about the timing of this, assuming we don't agree with you on that.

[00:13:04] Speaker 01:
In order to remand on SAS, if the board didn't institute on certain grounds or on certain claims, we're not in a position to decide those issues on the merits in order to determine whether or not it would be a waste of time to send it back to the board.

[00:13:22] Speaker 01:
That's just something we are not in a position to be doing.

[00:13:27] Speaker 02:
In an appeal under 706, it is the appellant's burden to show that there was not a harmless error below.

[00:13:34] Speaker 02:
So if you look at PGS, for example, in Judge Taranto's opinion, he said, look, okay, granted, there was no request for SAS relief there, but he made it clear that it's discretionary whether or not to remand.

[00:13:46] Speaker 02:
And one of the reasons he cited for that was the fact that 706 appeal is under harmless error standard, okay?

[00:13:53] Speaker 02:
So here there not only is this clearly harmless error.

[00:13:55] Speaker 01:
I'm just suggesting to you as a matter of law, I don't understand if we're to apply the harmless error standard

[00:14:01] Speaker 01:
That means that we have to go underneath and we have to look at all of those non-instituted grounds to conclude that there's no harmless error because the arguments had no merit.

[00:14:14] Speaker 01:
So you're putting a burden on us, which the statute does not envision we would have in the first instance.

[00:14:21] Speaker 01:
It's the board's job in the first instance to make those determinations.

[00:14:26] Speaker 01:
You didn't have an argument from Google challenging the merits of those decisions.

[00:14:30] Speaker 01:
Well, because they're not properly before us, because the board didn't institute.

[00:14:34] Speaker 01:
We've clearly said that those aren't reviewable if they're non-instituted.

[00:14:38] Speaker 01:
And until now, we've said that.

[00:14:39] Speaker 01:
You've said this year.

[00:14:41] Speaker 01:
How could they have challenged the non-instituted grounds where the board didn't institute and didn't decide those, right?

[00:14:49] Speaker 01:
Could you say that again, Your Honor, please?

[00:14:51] Speaker 01:
How could they have challenged on the merits, the pros and cons of the grounds that weren't instituted?

[00:14:57] Speaker 02:
They could have done it in their briefing because they took the appeal under 706 and instead of moving for a remand and saying, let's send this back to the patent office first for them to determine what with the right procedure would be with respect to the non instituted grounds.

[00:15:10] Speaker 02:
Instead, they said, Hey, we're going to treat this thing as a final judgment.

[00:15:14] Speaker 02:
We're going to let the appeal go and then do it that way.

[00:15:17] Speaker 02:
And so the whole appeal has gone and instead of moving in the beginning to allow the patent office to say, here, this is what should happen with these grounds.

[00:15:24] Speaker 02:
We're just going to do the same thing.

[00:15:26] Speaker 02:
which would have actually ended up being a non-reviewable decision.

[00:15:29] Speaker 02:
Instead, they elected to bring it up on the appeal as a substantive matter, which means the whole judgment below went final, which should make it non-reviewable.

[00:15:39] Speaker 02:
But then what you've done is you've taken it into Judge Toronto's territory, where at the best, you get it to be discretionary.

[00:15:45] Speaker 02:
So not only is it harmless, it shouldn't be done.

[00:15:48] Speaker 02:
And I also submit to you, yes, there is case law in these orders that says we're going to treat grounds the same as claims.

[00:15:54] Speaker 02:
It's very important to note here

[00:15:56] Speaker 02:
All institution was made on all claims here.

[00:15:59] Speaker 01:
The only instance- I know, but the case law is clear.

[00:16:01] Speaker 01:
The PTO has said it, and we have said it too, that grounds and claims under SAS are treated the same, right?

[00:16:08] Speaker 02:
There are two opinions that say that.

[00:16:10] Speaker 01:
One is- Well, that's enough for us, right?

[00:16:13] Speaker 02:
Let me explain why it's not.

[00:16:14] Speaker 02:
Okay, for the first is an order.

[00:16:16] Speaker 02:
It was not actually an opinion on the merits.

[00:16:18] Speaker 02:
Is it a presidential order?

[00:16:19] Speaker 02:
I don't know if orders are technically presidential, but even if they are- You'll know if you look at the top of your head.

[00:16:24] Speaker 01:
They either say nothing, which means they're presidential, or they say they're non-presidential.

[00:16:30] Speaker 02:
Okay, well, if it's an order, even if it's presidential, I would tell you that it's not binding on this case, because we haven't had a chance to... The argument, the specific argument that we have made has not been raised in the courts before, and I think it's fair to have it considered, which is that if you take Chevron... Okay, Chevron has a two-step analysis, and that two-step analysis says first you look and see whether the statute controls the case.

[00:16:54] Speaker 02:
And then the second one, if the statute is ambiguous or is silent, then the administrative agency has some discretion as long as they have a reasonable interpretation of the statute.

[00:17:06] Speaker 02:
Now, what SAS said is it interpreted the IPR statute, which specifically the claim language.

[00:17:13] Speaker 02:
So the only thing that SAS has a holding on is the issue of the claims.

[00:17:18] Speaker 02:
SAS is not a holding on the issue of grounds.

[00:17:23] Speaker 02:
And it's true that there is the one order, again, that was not on the merits.

[00:17:28] Speaker 01:
If you're trying to bring us into Chevron land, or our, or whatever we're talking about, then didn't the PTO issue something right after SAS?

[00:17:35] Speaker 01:
Maybe I'm misremembering.

[00:17:37] Speaker 01:
But I thought the PTO said it was going to, because they're reading of SAS.

[00:17:41] Speaker 02:
For future cases.

[00:17:42] Speaker 02:
So the question is, is this case retroactive to that?

[00:17:46] Speaker 02:
And the answer is, it should not be retroactive, because first, it shouldn't even apply.

[00:17:51] Speaker 01:
And second of all, it's not retroactivity.

[00:17:52] Speaker 01:
It's still open, right?

[00:17:53] Speaker 01:
Yes.

[00:17:54] Speaker 01:
Under the... Under the Reynolds... That SAS only applies to cases that are filed after a decision issue?

[00:18:02] Speaker 02:
Reynoldsville retro... There's two elements of retroactivity law.

[00:18:07] Speaker 02:
One is for cases that have already gone final.

[00:18:09] Speaker 02:
There's no question in the cases that have already gone final, there's no retroactivity.

[00:18:14] Speaker 02:
There is a presumption of retroactivity for a case that's still pending.

[00:18:19] Speaker 02:
Okay?

[00:18:19] Speaker 02:
And I would admit that that presumption would apply in this case.

[00:18:23] Speaker 02:
However, it is rebutted for the reasons we stated in our brief.

[00:18:25] Speaker 02:
There are four considerations where you do not, in fact, apply retroactive decision to a pending case.

[00:18:33] Speaker 02:
And one of those is the same as what you get under 706, which is the harmless error.

[00:18:37] Speaker 02:
Okay?

[00:18:38] Speaker 02:
Now, again, if the PTAB has found, and this would ordinarily be, we've already heard from the Federal Circuit before SAS, that it's reasonable for the PTAB to have said,

[00:18:47] Speaker 02:
there's no reasonable likelihood of success on the merits here.

[00:18:50] Speaker 02:
What is how, what, what purpose is it going to accomplish to remand back to the PTAB to do the same, to have a trial on something where it said there's no reasonable likelihood of success on the merits and for which we've had no proof whatsoever that there was any, any merits based decision that was wrong by the PTAB.

[00:19:10] Speaker 02:
If they thought something was wrong by the PTAB, what they should have done,

[00:19:13] Speaker 02:
is they should have filed a motion before this appeal was heard so we won't have piecemeal appeals.

[00:19:18] Speaker 02:
Because really what's going on here, what this is, is an attempt by Google to get those piecemeal appeals in order to delay the resolution of this case.

[00:19:25] Speaker 02:
That's not fair to my client.

[00:19:27] Speaker 02:
And I respectfully submit under the PGS case, and even under Judge Moore's opinion in the Adidas case, which specifically said that that holding was limited to the case where a prompt request for remand was made.

[00:19:44] Speaker 02:
That doesn't apply here.

[00:19:45] Speaker 02:
There was no prompt request for remand.

[00:19:48] Speaker 02:
So I think that takes care of the SAS issue.

[00:19:53] Speaker 02:
I want to talk briefly in my remaining time about the actual merits of the appeal.

[00:19:59] Speaker 02:
Mostly we stand on our brief.

[00:20:01] Speaker 02:
But again, Sony is very much like all the other prior art we talked about.

[00:20:05] Speaker 02:
What it's about is you take some information, traffic data, you send it to some sort of processor, which already has a locally stored map

[00:20:13] Speaker 02:
and you superimpose some image on it.

[00:20:14] Speaker 02:
There is no disclosure whatsoever of superimposing two maps on each other.

[00:20:20] Speaker 02:
There's not even a disclosure of a time variant map.

[00:20:23] Speaker 02:
And again, that's something that was found.

[00:20:25] Speaker 02:
Now, the PTAB's holding was squarely predicated first on this issue of no shape designating statement.

[00:20:34] Speaker 02:
And you'll recall that what the PTAB found was

[00:20:38] Speaker 02:
The shape is locally designated.

[00:20:40] Speaker 02:
It's not something received as required by the claims.

[00:20:42] Speaker 02:
Remember, the claims require that these attribute designated, shape designation, position designated statements must be received.

[00:20:49] Speaker 02:
And it says, we know in SONE that's not the case because the arrows are locally generated.

[00:20:54] Speaker 02:
There is nothing in these congestion data sets that tells you what is going to be displayed.

[00:21:01] Speaker 02:
That by itself is a fact and it's subject to substantial evidence review.

[00:21:07] Speaker 02:
But I think there's something else here that I want to make clear because it's a fundamental flaw in the arguments that you heard for reversing that decision.

[00:21:16] Speaker 02:
You heard that what Sonya provides is not just position, but shape.

[00:21:21] Speaker 02:
What it says is what the argument is in their brief, and you heard it again here in oral argument, is that if you have coordinates P1, P2, and a second set of coordinates P3, P4, that

[00:21:34] Speaker 02:
That is not only position coordinates, that is the shape because the shape is a line.

[00:21:39] Speaker 02:
That is false.

[00:21:41] Speaker 02:
If you look in the patent, figure 11C, 11C is very clear about this.

[00:21:47] Speaker 02:
In figure 11C, you'll see here is this is the compressed traffic state map.

[00:21:52] Speaker 02:
This is what you're sending to the receiver.

[00:21:56] Speaker 02:
It has first an attribute designating statement, then it has the shape, S1.

[00:22:01] Speaker 02:
That is a line.

[00:22:04] Speaker 02:
And it must tell you that shape is a line because having P1 and P2 by itself does not tell you that you're gonna connect P1, P2 with a line.

[00:22:15] Speaker 02:
I can make P1, P2 an arc.

[00:22:19] Speaker 02:
What if P1, P2 is the diameter of a circle?

[00:22:22] Speaker 02:
So what's missing from Sony is not only, forget about the precise shape that they argue, there is no designation whatsoever of the shape of anything that's in Sony.

[00:22:34] Speaker 02:
And again, the board's finding is subject to substantial evidence review that, in fact, insonate the shape of what is displayed, which is the arrows, is dictated locally.

[00:22:47] Speaker 02:
So to me, there's just, I don't see what else could be said about that.

[00:22:52] Speaker 02:
Another thing you heard here is that this is a case where there's a small logical gap between the invention and the prior art.

[00:22:59] Speaker 02:
For the reasons I've already explained, Your Honor, that is not true.

[00:23:02] Speaker 02:
This is not just a case where it's what color do you put on the roads.

[00:23:07] Speaker 02:
This is how do you create the whole structure.

[00:23:10] Speaker 02:
Here in the patent we have, and this is explicit in claims 45 and 46, you create the traffic, excuse me, you create the traffic state map, which has time-variant information, and you superimpose it on another map.

[00:23:23] Speaker 02:
That's two separate maps of two different kinds.

[00:23:26] Speaker 02:
Sony doesn't, all it has is one map.

[00:23:29] Speaker 02:
And it's not traffic, and it's not even a time-variant information map.

[00:23:34] Speaker 02:
Because the only time-variant information is the data, and the map itself is just a basic map, and you're just taking individual images and putting them on there.

[00:23:43] Speaker 02:
Every time you move the map, you have to erase the image.

[00:23:46] Speaker 02:
There's no two separate maps.

[00:23:48] Speaker 02:
So this isn't a small logical gap.

[00:23:50] Speaker 02:
This is a huge difference between the prior.

[00:23:52] Speaker 02:
And that's why these claims, in both

[00:23:56] Speaker 02:
then both sets of patents are very important claims.

[00:24:00] Speaker 02:
Finally, in the two minutes, I want to talk also about the arguments with respect to the suggestion to combine because as was pointed out previously, there is not just a finding that SONE failed to disclose the shape designating statement.

[00:24:15] Speaker 02:
The board also found that there was not a sufficient suggestion to combine.

[00:24:20] Speaker 02:
And what we heard from in the previous argument was, is that their experts said,

[00:24:26] Speaker 02:
that a person would know to take Roy, and it would improve the speed of transmission to add this extra data to it in the way of vectors.

[00:24:37] Speaker 02:
The board did not credit that.

[00:24:38] Speaker 02:
And regardless, again, it doesn't matter what was in our expert report, because what this court is reviewing is the board's decision.

[00:24:46] Speaker 02:
And the board logically ignored that, because what Michelson said makes no sense.

[00:24:51] Speaker 02:
He was sort of what?

[00:24:52] Speaker 02:
You said the board logically ignored that.

[00:24:56] Speaker 02:
The board logically concluded that that that Michelson's testimony was not helpful on the suggestion in the issue because what Michelson is saying, well first of all he's talking about Roy.

[00:25:07] Speaker 02:
Roy is about again how you create vector-based maps.

[00:25:11] Speaker 02:
It's about the static maps.

[00:25:12] Speaker 02:
It has nothing to do with time-variant maps at all, okay?

[00:25:17] Speaker 02:
And what Michelson said, well if you're sending this traffic data

[00:25:21] Speaker 02:
It would be more efficient to also send vector information.

[00:25:25] Speaker 02:
So he's saying it would be more efficient in the transmission to send this additional information.

[00:25:30] Speaker 02:
That makes no sense.

[00:25:31] Speaker 02:
The efficiency that Roy was talking about has nothing to do with the information that you're sending.

[00:25:35] Speaker 02:
It has to do with the information that you're using in the processor to build the map that's already stored in the first place.

[00:25:41] Speaker 02:
So what they were talking about there was apples and oranges.

[00:25:44] Speaker 02:
The board didn't buy it.

[00:25:45] Speaker 02:
That's subject to substantial evidence review.

[00:25:48] Speaker 02:
And with that, I am out of time.

[00:26:00] Speaker 00:
Your Honor, if I may briefly start where Mr. Huffman felt ended, which is the obviousness argument.

[00:26:06] Speaker 00:
As this court has made clear, even under substantial evidence standard, when it has not hesitated to overturn a board's findings, when those findings are not supported by any evidence.

[00:26:16] Speaker 00:
Here, the board does not cite any evidence as to why a person of ordinary skill in the art would not have made the modification.

[00:26:22] Speaker 00:
Dr. Michelson's expert declaration, paragraph 77 and 81,

[00:26:27] Speaker 00:
and 78 speak directly to why a person of ordinary skill in the art would have used a vector-based format for transmitting Sony's congestion data sets.

[00:26:37] Speaker 00:
That testimony is unchallenged and uncontroverted, Your Honors.

[00:26:40] Speaker 00:
Also, Mr. Hopenfeld made a comment about the board, that the board found that the images in Sony are generated locally.

[00:26:50] Speaker 00:
The board did find that, and that underscores the board's error, because the very point of having a vector-based data

[00:26:57] Speaker 00:
is that you generate images locally.

[00:27:00] Speaker 00:
As I mentioned earlier, and there's no dispute in this on a record, and I think in a red brief, pages five and six make this clear, there were two types of data formats, raster-based formats and vector-based formats.

[00:27:13] Speaker 00:
Raster-based formats took little pieces of the images themselves, pixels or bitmaps, and transmitted them, whereas vector-based formats would transmit information rather than the image so that you could generate the image locally.

[00:27:26] Speaker 00:
The fact that SONY generates images locally only confirms that it's a vector-based data format.

[00:27:35] Speaker 01:
Can I go back to the SAS briefly before you conclude?

[00:27:38] Speaker 01:
Is your friend right that you should have filed a motion here in the first instance before this case or while before this case this panel or argued to seek SAS review and you were required to do that?

[00:27:53] Speaker 00:
No, he's not for at least two reasons.

[00:27:55] Speaker 00:
One, and it relates to piecemeal.

[00:27:57] Speaker 00:
We have an appeal here where it's not final, so there's no retroactivity.

[00:28:01] Speaker 00:
But we believe, as we said forth in our brief, you don't need to remand, because you can find that claims 45 and 46 are unpatentable in view of Sone or in view of Sone and Roy.

[00:28:13] Speaker 00:
Second, to the extent the argument is based on timing, I believe the SAS decision came down about a week before.

[00:28:24] Speaker 00:
our brief was due.

[00:28:25] Speaker 00:
So I think we entirely preserved our ability to raise this issue by raising it timely in the brief.

[00:28:32] Speaker 00:
And I would further add that while Adidas suggests or states that you can file a motion, it doesn't make it a requirement to preserve that argument.

[00:28:40] Speaker 00:
I think the argument's fully preserved, Your Honor.

[00:28:45] Speaker 00:
Two last points, Your Honor.

[00:28:48] Speaker 00:
Mr. Hopenfeld also argues that there's nothing in the congestion data sets that will tell you what will be displayed.

[00:28:54] Speaker 00:
Again, that's attorney argument that was not argued down below.

[00:28:58] Speaker 00:
There's no expert testimony for that.

[00:29:00] Speaker 00:
Sony expressly refutes that because it makes clear that what's transmitted is the location, position, and the direction of the traffic that will be shown.

[00:29:13] Speaker 00:
And it also tells you how many congestion marks you can have based on the degree of traffic.

[00:29:18] Speaker 00:
That's the whole point of Sony.

[00:29:20] Speaker 00:
It conveys information.

[00:29:21] Speaker 00:
for displaying a traffic image on a map.

[00:29:25] Speaker 00:
And then the final point, Your Honors.

[00:29:28] Speaker 00:
I believe Mr. Hopenfeld argued that simply having two positions, P1, P2, is not enough because it doesn't provide a shape.

[00:29:36] Speaker 00:
A couple of points on that.

[00:29:37] Speaker 00:
Again, that argument was not raised below by Pat Noehner.

[00:29:40] Speaker 00:
There's no evidence to support that argument.

[00:29:42] Speaker 00:
That's simply attorney argument now.

[00:29:45] Speaker 00:
So many refutes that Dr. Michelson explains that

[00:29:49] Speaker 00:
The position coordinates corresponding to a map coordinate system in SONY are essentially identical to the shape designating statement in a 508 path.

[00:30:03] Speaker 00:
That evidence is uncontroverted, unchallenged.

[00:30:06] Speaker 00:
Further, SONY itself explains that the two position coordinates provide an interval.

[00:30:12] Speaker 00:
They're not just two coordinates in the ether.

[00:30:15] Speaker 00:
They're tied to a map-based coordinate system.

[00:30:18] Speaker 00:
So if I have two coordinates, I know it's going to be a line.

[00:30:20] Speaker 00:
I know the shape based on the positions of those coordinates with respect to a map coordinate system.

[00:30:28] Speaker 00:
And finally, Your Honors, in SONE, for example, column three, lines 26 to 28, that's at page 701 of the appendix.

[00:30:38] Speaker 00:
At columns four, lines 31 to 33 at page 701 of the appendix, and also claims one and four of SONE itself.

[00:30:47] Speaker 00:
explicitly state that the congestion marks will be arranged in a line or a linear fashion based on the interval between the two coordinate positions.

[00:30:57] Speaker 00:
Your Honor, we respectfully ask that this case be reversed with respect to claims 45 and 46 based on SONE or in the alternative remanded.

[00:31:06] Speaker 01:
Thank you very much.