[00:00:15] Speaker 02:
Mr. Bloomberg, you reserve three minutes of your time for rebuttal, correct?

[00:00:20] Speaker 02:
That is correct.

[00:00:20] Speaker 02:
OK, you may proceed.

[00:00:22] Speaker 03:
Thank you, Your Honor.

[00:00:24] Speaker 03:
Mark Bloomberg for Appellant AAMP.

[00:00:28] Speaker 03:
The issue before the court is actually a very well-defined issue.

[00:00:32] Speaker 03:
And the claims have been found to be obvious over a reference called Daly.

[00:00:38] Speaker 03:
And there's no issue about that.

[00:00:39] Speaker 03:
The issue is, is Daly prior art or is Daly not prior art?

[00:00:43] Speaker 03:
And AMP's patent was the result of a number of applications, two of which are relevant here, both of which predate daily.

[00:00:52] Speaker 03:
So if the disclosure in those applications is adequate, daily is no longer a reference.

[00:01:00] Speaker 03:
The issue that is relevant here is something called hardwired.

[00:01:07] Speaker 04:
And I think it's- We're very familiar with the facts.

[00:01:10] Speaker 04:
So if you want to jump right into the issue, thank you.

[00:01:13] Speaker 03:
I think that the key issue here is that both of the applications have certain disclosures that are in common.

[00:01:25] Speaker 03:
And when you take those applications that are in common, they show disclosure of hardwired.

[00:01:32] Speaker 03:
The first is they say that most of the radios are hardwired to begin with.

[00:01:42] Speaker 03:
And then they say that they are connected by a wire between the steering wheel and the stereo.

[00:01:54] Speaker 03:
And intervening that, for the purposes of this invention, is the interface device which converts the signal.

[00:02:01] Speaker 03:
What comes out of that interface device is a wire which is cable 112, which is located proximate to the

[00:02:10] Speaker 04:
stereo so the only piece that is really missing of this whole part is that you take the wire and you plug the wire into the radio which is intended as your wire could try to understand what your argument is that there wasn't substantial evidence to support the board's finding that the specification didn't disclose hardwired because I guess suppose it would understand that that the inventor had this

[00:02:40] Speaker 04:
within his understanding because it's so basic?

[00:02:45] Speaker 03:
Is it something like that?

[00:02:46] Speaker 03:
That's right.

[00:02:47] Speaker 03:
It's not complex, and it's ultimately predictable that one would plug a wire into the radio, which is exactly how these things work and were designed to happen.

[00:02:58] Speaker 03:
And it doesn't specifically say that in the specification, at least in the first specification.

[00:03:06] Speaker 03:
that would be a predictable thing to do.

[00:03:09] Speaker 01:
So predictable, your use of the word predictable, I guess, makes me think of the standard line that what's obvious is not necessarily described.

[00:03:19] Speaker 01:
How do you get onto the described side of the line by saying it was predictable?

[00:03:25] Speaker 03:
Because in this particular instance, what the patent does talk about is that you hardwire the existing radios.

[00:03:35] Speaker 03:
The only thing that is not happening here is it doesn't specifically say to stick the plug in.

[00:03:40] Speaker 03:
That's the only piece that's missing for one of the applications.

[00:03:46] Speaker 03:
And I might add that of the two applications, the second one, which is the 449 application, which was later the two applications, it is specifically described.

[00:03:55] Speaker 04:
How do you respond to the argument that you had to waive that, your reliance on the 449 application,

[00:04:03] Speaker 04:
because that was something that was presented to the examiner, but it was never presented to the board.

[00:04:09] Speaker 04:
It makes it difficult for us to pass on it now.

[00:04:13] Speaker 03:
Sure.

[00:04:14] Speaker 03:
The pieces that were before... Well, 449 was in front of the board because

[00:04:22] Speaker 03:
as I just described, is the commonality in large part description.

[00:04:25] Speaker 03:
But now you're talking about the additional.

[00:04:27] Speaker 04:
I mean, whether they had the 449 specification in front of them, of course they did, because it's the same specification as the patent suit.

[00:04:34] Speaker 04:
That's not the question.

[00:04:35] Speaker 04:
The question is whether you argued that the specification supported

[00:04:42] Speaker 04:
the claims, provided written description support for the claims as a separate argument from the other argument you were making where you were relying on the application.

[00:04:52] Speaker 04:
I think it was the 952 patent specification, which is the 627 application.

[00:04:59] Speaker 03:
Yes, right, the 952.

[00:05:01] Speaker 03:
Yes, there was the commonality that was argued, but there was not a specific discussion of the later application to the board.

[00:05:11] Speaker 03:
But the other reason that there's not, so it was common, but you are correct that it wasn't.

[00:05:19] Speaker 03:
But the other reason why waiver does not apply here is if you look at the waiver cases, what they deal with is they deal with a new argument.

[00:05:27] Speaker 03:
They don't deal with additional evidence to support an argument that was made.

[00:05:31] Speaker 03:
And the whole argument that was in front of the board was that was the disclosure

[00:05:37] Speaker 03:
within the specification.

[00:05:39] Speaker 03:
And although this particular part of the specification may not have been discussed then, it's just additional evidence.

[00:05:47] Speaker 03:
There should be sufficient evidence that I can dispute.

[00:05:51] Speaker 04:
I understand your position.

[00:05:52] Speaker 04:
Your position is that it's additional evidence as part of an overall argument that you should be able to predate.

[00:05:59] Speaker 04:
And another way to look at it is it's a separate issue, because one question is whether

[00:06:05] Speaker 04:
The 627 application provided written description support.

[00:06:09] Speaker 04:
And the other question is whether the 449 application provided written description support.

[00:06:14] Speaker 04:
But I understand your position.

[00:06:16] Speaker 03:
Exactly.

[00:06:17] Speaker 03:
It's distinct, for example, if all of a sudden we were now saying, oh, well, it's not obvious over daily.

[00:06:24] Speaker 03:
That would be a new argument.

[00:06:26] Speaker 03:
Yeah, waiver would have applied that.

[00:06:29] Speaker 03:
And so with respect to the part that's missing,

[00:06:32] Speaker 03:
as we discussed before which is the the fact that the There's not direct wire to a aftermarket radio that is specifically disclosed in the later 449 pattern and in particular figure 9 Shows where is it disclosed in the 449 pattern sure if you look at in the 449 pattern?

[00:06:58] Speaker 03:
There's figure 9

[00:07:00] Speaker 03:
and there's an element in Figure 9.

[00:07:02] Speaker 03:
Where are we at?

[00:07:04] Speaker 03:
I'm sorry, I've got the wrong number.

[00:07:22] Speaker 03:
The 449 application becomes the 510 patent, which

[00:07:31] Speaker 03:
I'm sorry, the 570 patent, which is at the appendix starting at... Show me the 449 application.

[00:07:39] Speaker 03:
449 application.

[00:07:43] Speaker 03:
Okay.

[00:07:47] Speaker 03:
Let's see, that's at 3833 is the start.

[00:08:07] Speaker 02:
OK.

[00:08:16] Speaker 03:
Let's see.

[00:08:25] Speaker 03:
It's figure nine.

[00:08:36] Speaker 01:
Do we have to look at the patent to find the figures?

[00:08:39] Speaker 03:
That may be.

[00:08:40] Speaker 03:
That would be easier.

[00:08:41] Speaker 03:
So the patent that we're talking about now is going to be the 570 patent, which is going to be at 5120.

[00:08:50] Speaker 03:
And so at 5133.

[00:09:04] Speaker 03:
Sorry for the delay.

[00:09:05] Speaker 03:
That's the page that we want to look at.

[00:09:11] Speaker 03:
And the important item there is going to be 406A, which is on the top right.

[00:09:21] Speaker 03:
And that can be different things, but one of the things that the patent says is that can be an aftermarket radio.

[00:09:29] Speaker 03:
Another thing that the patent says is that it can be

[00:09:35] Speaker 02:
hardwired So you're you're claiming that the figure on 5133 is a disclosure of a wired connection between the interface device and a replacement radio.

[00:09:48] Speaker 02:
That's correct that in connection with the description of 406a Does a description of this figure support that?

[00:09:58] Speaker 03:
Yes Okay, so

[00:10:03] Speaker 03:
If you look at column 18, line 3.

[00:10:14] Speaker 01:
We're still in the 570 pattern.

[00:10:17] Speaker 03:
Yes.

[00:10:22] Speaker 03:
Column 18, line 3 to 4 says, therefore, the first entertainment component, 4068, may comprise the aftermarket

[00:10:33] Speaker 03:
Stereo system 104 so that tells you that that 406 a is aftermarket and then if you turn to column 21 the 66 to the top of column 22

[00:11:02] Speaker 03:
it says moreover the scope and functionality of the control output signals including hardwired and wireless control signals are applied to the microcontroller 142 the first entertainment component 406A so that is telling you that a hardwired signal can be applied to the entertainment component after going to the interface

[00:11:27] Speaker 03:
It's your view that that language including hardwired and wireless control signals means you could have one or the other you get that's correct Because in this patent the preferred environment is wireless Which is not what we're talking about now, but but it's not limited to that preferred environment, okay?

[00:11:48] Speaker 03:
And so what this tells us is if you look at the that application which predates daily that

[00:11:58] Speaker 04:
Does it now in terms of PTO responds that these disclosures come from two separate embodiments, right?

[00:12:05] Speaker 03:
That's what they say, but the only place the one and only place in the patent where that work of point 406 a is disclosed is figure 9 it's it's it's just that that is the embodiment and

[00:12:20] Speaker 03:
And it can be put together in different ways, but that's basically the embodiment structure.

[00:12:24] Speaker 03:
And there's alternative ways that that can be put together, but it's the same embodiment.

[00:12:27] Speaker 03:
So it tells you that when you have the 406A component, could be aftermarket, could be wired, hardwired.

[00:12:47] Speaker 03:
There are other combinations that could also be as well, but it could be that one, which is what's important here.

[00:12:52] Speaker 02:
OK.

[00:12:52] Speaker 02:
You're in your rebuttal time.

[00:12:53] Speaker 02:
You want to save your time?

[00:12:58] Speaker 03:
Yes.

[00:12:59] Speaker 03:
Why don't I do that?

[00:13:00] Speaker 03:
Thank you very much, Your Honor.

[00:13:10] Speaker 02:
Attorney Lateef.

[00:13:12] Speaker 00:
Good morning, Your Honors.

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

[00:13:15] Speaker 00:
There's only one issue in this appeal, and that is whether the 627 application has written descriptive support for the wired limitation that is in the 825 patent, such that Daly qualifies as prior art.

[00:13:31] Speaker 00:
I understand that my counsel over here, Appellant, would like to argue that the 449 patent is still in play.

[00:13:38] Speaker 00:
But it is not, because the whole point was that Daley was found to be, the examiner used Daley as a rejection, a 102 and 103 rejection.

[00:13:47] Speaker 00:
And in arguing that Daley is not prior art, they appealed to the board under the 627 application.

[00:13:54] Speaker 00:
You can have this argument that it was a continuation.

[00:13:57] Speaker 00:
The 825 is a continuation from the 449 patent, so they share the same spec.

[00:14:02] Speaker 00:
But there was never any argument saying,

[00:14:04] Speaker 00:
Oh, look, the 449 application is where we should also look for a wired... That was presented to the examiner, but not to the board.

[00:14:13] Speaker 00:
Correct.

[00:14:13] Speaker 00:
The examiner made a finding and said, we see certain language here in the 449 application that may allude to something.

[00:14:20] Speaker 00:
But actually, if you look at 46A, 46A in one embodiment is in factory stereo, and in another embodiment is in aftermarket stereo.

[00:14:32] Speaker 00:
And appellate never

[00:14:34] Speaker 00:
traversed that rejection, never went to the board to try to defend itself against the examiner's rejection.

[00:14:40] Speaker 00:
And so when the board got this case, all the board did was look to whether or not the 627 application, which is what they argued, had a wired limitation or not.

[00:14:49] Speaker 00:
So that is what is before this court, and that is what this court needs to figure out.

[00:14:54] Speaker 00:
We obviously, the PTO, argue that the inventor did not have possession of a wired output connection when

[00:15:02] Speaker 00:
the filing date of the 627 application.

[00:15:05] Speaker 00:
If you look at the 627 application, it talks about interface circuit 110 sending output signals to the replacement stereo 104 through the transmission cable 112.

[00:15:18] Speaker 00:
And at the end of this transmission cable is a transmitter 154.

[00:15:22] Speaker 00:
And that transmitter is an infrared diode.

[00:15:26] Speaker 00:
This idea that you can just plug this cable into a replacement stereo

[00:15:30] Speaker 00:
doesn't make any sense when you have an infrared diode at the end of it to send wireless signals.

[00:15:36] Speaker 00:
And figure 3 and figure 4a of the 627 application make this clear.

[00:15:41] Speaker 00:
And the board found, if you look at figure 3, there are these little squiggly lines to show the wireless output that's happening.

[00:15:47] Speaker 00:
You can't simply plug this in.

[00:15:50] Speaker 00:
Appellant made arguments that it's possible that this transmitter is somehow optional.

[00:15:56] Speaker 00:
But there's nothing in the 627 to suggest that it's optional.

[00:16:00] Speaker 00:
And there's nothing to suggest that the inventor, at the time of filing the 67 application, possessed some way to take that transmitter off and plug this cable in.

[00:16:11] Speaker 00:
So given all of that, taking the 449 off of the table and looking strictly at the 67, there's no wired connection here.

[00:16:22] Speaker 00:
There's nowhere in descriptive support.

[00:16:23] Speaker 04:
What about the argument that this is pretty simple technology?

[00:16:30] Speaker 04:
you know, a POSA would immediately know that you could have this alternative.

[00:16:34] Speaker 00:
I understand that argument, and it is simple technology.

[00:16:37] Speaker 00:
You have wired or you have wireless.

[00:16:39] Speaker 00:
But the standard for written descriptive support is whether or not, looking at the four corners of the specification, whether a person of ordinary school in the art would be able to understand that the inventor had possession of whatever it is you're seeking.

[00:16:52] Speaker 00:
And in this case, that is a wired output transmission.

[00:16:57] Speaker 00:
And just because

[00:16:59] Speaker 00:
Wired and wireless are not complex ideas.

[00:17:01] Speaker 00:
If you look at the 67 application, everything about it shows that the inventor had possession of something wireless.

[00:17:08] Speaker 00:
There is no way for anything to reach the replacement stereo.

[00:17:12] Speaker 00:
I don't know if that answered your question.

[00:17:17] Speaker 00:
So if there are no further questions, I'll yield my time.

[00:17:20] Speaker 00:
Thank you.

[00:17:25] Speaker 02:
Mr. Bloomberg, I asked you some questions that had you going back into the record quite extensively, and I used up your time.

[00:17:31] Speaker 02:
So I'm going to short you four minutes, to be fair, OK?

[00:17:34] Speaker 03:
Thank you, Your Honor.

[00:17:37] Speaker 03:
I think that we've discussed the 449, so let's not get into that at all.

[00:17:42] Speaker 03:
But I think that there's some issues with the 627, which is that, yes, it is true that there is not a specific disclosure of plugging the wire into the

[00:17:55] Speaker 03:
the radio.

[00:17:56] Speaker 03:
But as I said before, it's predictable.

[00:17:59] Speaker 03:
That's the way it is.

[00:18:00] Speaker 03:
Now, it's true that there's a description of putting a diode at the end of the wire.

[00:18:08] Speaker 03:
Well, you need to do that because one of the things that you do in the preferred embodiment is for that embodiment, you would have to do that because it has to be able to communicate wirelessly.

[00:18:18] Speaker 03:
That is not to say that a wire has to have that component at the end of it.

[00:18:22] Speaker 03:
It does

[00:18:23] Speaker 03:
It's just a wire, and you just plug the wire in.

[00:18:26] Speaker 03:
But if you did want to use that for wireless, you would have to modify it in order for it to work.

[00:18:31] Speaker 03:
So the fact that that embodiment talks about putting that additional piece in does not diminish from the fact that you do have a wire, cable 112, that goes to the stereo.

[00:18:41] Speaker 03:
and that that wire would be plugged into the stereo just as the stereo is intended to receive the wire and that's the way the wire works.

[00:18:49] Speaker 02:
The question here is whether the inventor in the 627 application had possession of an invention that included or was based on the interface being hardwired to a non-aftermarket radio and that's not

[00:19:09] Speaker 02:
And you're arguing that you could look at that and say that the inventor had possession.

[00:19:15] Speaker 02:
How can that be if there's no mention?

[00:19:20] Speaker 03:
It is because it is there.

[00:19:22] Speaker 03:
That specific detail, which is a predictable, non-complex detail, is not exactly spelled out because the way that these devices worked is there was a wire that goes from the stereo, I'm sorry, from the steering wheel to the stereo.

[00:19:36] Speaker 03:
And the stereos have

[00:19:38] Speaker 03:
input for the wire to be, and all that's really happening here is that in between the steering wheel and the radio.

[00:19:46] Speaker 02:
So that worked, but then when you came out and replaced the radio with a aftermarket replacement, then you had a problem.

[00:19:54] Speaker 02:
You couldn't just hard wire it the way it was wired before.

[00:19:57] Speaker 03:
Well, that much you can do because there really is no difference between a regional radio and aftermarket radio.

[00:20:04] Speaker 03:
It's just that whether it came with the car or it was put in the car afterwards.

[00:20:07] Speaker 03:
The problem that we have, the only reason it's a problem for the two, is that the signals might have to be changed.

[00:20:13] Speaker 03:
That's why you have the translation.

[00:20:14] Speaker 03:
But in terms of how it's connected up, that there's a path from the steering wheel to the stereo, that is no different.

[00:20:23] Speaker 03:
And that's really not part of the invention, although that is in the claim, yes.

[00:20:26] Speaker 03:
But that connection is not there now.

[00:20:30] Speaker 03:
If you wanted to go into the wireless, which were really not an issue now that we're we're dealing with Additional things have to disclose for that as they were for the wired one all that happened is you were just going to connect these stereos up the way they always had been using the intended way and it's just a question of putting wire into the receptacle for receiving a wire Okay All right.

[00:20:54] Speaker 03:
Thank you for your okay Thank you.

[00:20:57] Speaker 02:
Yes

[00:21:04] Speaker 02:
Our next case is Shandon Ronson versus the United