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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States in this honorable court.

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We have four arguments this morning, and the first of them is number 18-1338, Neology versus International Trade Commission.

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Good morning, Your Honor.

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May it please the Court.

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On page two of our opening brief, we have laid out three issues that are before you today.

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The first issue has to do with whether

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We, the appellant, waived our rights to a 2012 priority date for the patents in suit.

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And the third issue is about a prior art of snotgrass and whether the claims, the asserted claims are valid over snotgrass.

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We believe that the first and the third issues are the most straightforward and warrant a reversal.

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The second issue is a bit more complicated, and we have briefed that in our opening brief on pages 30 to 51.

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When you say waived the right to a 2012 priority date, do you mean waived a particular objection to the written description ground?

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I thought part of your argument was or the issue here was that priority date and written description, though intertwined, were actually separate grounds.

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That is correct, Your Honor.

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The court below conflated sections 120 and 112.

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And everybody's on the same page that the originally filed claims of the 2012 patent applications, which matured into the patents in suit, provide not just written description support, but provide verbatim written description support.

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At the ITC, the focus was on whether or not we can get the 2003 date, because there was a prior- That's from the 026 application.

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That's from the 026 application, because there was

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a prior art called the 6C protocol, which is dated 2006.

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If you take a look at page three of our reply brief, there is a quote from OUII's counsel, his opening statement at the ITC, where he acknowledges that if we're talking about 2012, then we have the written description support, because the original file claims issued

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with the patent.

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And so there is not only written description support, but a verbatim written description support.

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So everybody has been on the same page.

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But that issue was not discussed much.

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First of all, there's not much to discuss because the two sets of claims are mirror images of each other.

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But more importantly, there was another prior art before.

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Is there some place during your, before the ALJ, where you pointed out

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Look, we believe we have full written description support for these claims regarding the transmission of security keys dating all the way back to our very, very first non-provisional application, 2002, 2003.

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But in any event, at a minimum, we have written description support for these claims as of the filing dates in 2012.

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Is there some place where you have that?

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Yes, yes, Your Honor, we have actually briefed that in our opening brief at pages... Because obviously the ITC found that you waived that particular argument for that more limited form of written description... Yes.

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...or written description as of 2012 as opposed to 2002-2003.

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Yes, we disagree with the ITC, Your Honor, and we have briefed that on pages 27 through 29 of our opening brief.

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And also, if I may draw your attention to APPX0176, or rather, APPX0175, which is the initial determination by the ALJ, there is a sentence there which says, thus, the priority dates of the 044 and 436 patents are May 4, 2012, and January 1, 2012, respectively.

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Right.

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I guess what I'm trying to figure out is there was

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If we agree with the ITC and the ALJ that written description, the invalidity challenge was in play in front of the ALJ, and if the whole argument as to validity on written description grounds was purely devoted to whether the 026 application satisfied the written description requirement for these claims now in your two patents,

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then it doesn't sound like, at least in the context of that invalidity challenge, there was any argument raised on your side that, well, even if we lose on written description for purposes of what the 026 discloses, we most certainly have written description support for as of the 2012 filing dates, so therefore you cannot invalidate

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our claims for lack of written description.

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Okay, so even if you were to disagree with what we have said in our opening brief and the evidence that we provided that we did bring back to the ALJ's attention, we have cited cases about the discretionary aspect of the waiver.

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So, for example, in our reply brief on page 9, we have cited the Harris case, Long Island case, and the interactive gift case.

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And also, we have mentioned the Inray-Alton case, which says they have the burden of proof and persuasion.

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There is a presumption of validity of our patents.

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They have never made a prima facie case with any specificity that the original claims of the 2012 patent application do not provide written description support for the issued claims.

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They generally mentioned 112.

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But most of the time, they discussed 120.

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which 112 is a component of 120, as the Rifin case teaches us.

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But they never made a prima facie case.

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So even if you were to disagree with us, that we were not specific enough in telling the ALJ that the originally filed claims and the issued claims are identical.

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And therefore, we have written description support.

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And we believe we said enough.

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And as the court on page two of our reply brief from OUII's attorney,

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OUI eyes attorney.

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I was wondering if you could point me to something where Sure as to why?

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ALJ should not rule to invalidate their claims for lack of written description because These claims were always present when the continuation applications were filed in 2012 and

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Right, so on page 27, for example, we mentioned... Is there something in the joint appendix?

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So if we go to APPX0765...

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So, for example, on 765, there is a sentence in our pre-hearing brief where you say, except for the claims... Except about a third of the way down the page, starting in the middle.

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Yes, my apologies, but, except for the claims, the ASS file specification of the 026 patent is nearly identical to the respective applications

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that issued as the later member patents in the same family, including 568, 044, and 436.

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So that's one.

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And then we go to APPX 4775.

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Yes.

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This is your post-hearing brief?

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Yeah, this is post-hearing brief.

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And also, Your Honor, if I may, while I'm finding this, one thing I would like to point out is the Commission overruled the ALJ with respect to the 6C protocol.

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And the Commission then came back and said,

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asked Council to brief, to provide briefing on whether or not the ALJ conflated and confused 120 and 112 issues.

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The Commission reviewed the ALJ de novo.

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The Commission reversed the ALJ on some issues, modified on the other issues, and there was no prejudice caused to the other side by the fact that the issue of the 2012 priority dates surfaced now.

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They found all the prior art

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The SNOT grass goes way back to 1994-96.

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The 6C protocol goes back to 2006.

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And at that time, the commission was well within its rights to find priority date in 2012 because the review was de novo.

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And this whole issue surfaced because the 6C was invalidated as prior art.

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And so the commission actually asked for the briefing on 112 versus 120.

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So we don't understand why the commission found that the issue was waived.

[00:11:14] Speaker 01:
Mr. Joshua, you are into your rebuttal time.

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If you want to take a minute and say something about the merits of the written description question, I'll give you a little bit of extra time on rebuttal.

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OK.

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On the merits of the... So... About whether the written description supports or does not support

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require the claim requirements for the security key?

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So the written description in 2012, with respect to the 026, we have laid out all the claim limitations and why we believe there is support.

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Even in the 026 patent, with respect to the 026 patent application, what the commission and the ALJ found is that the elements of the claim, the reader, the transponder, the antenna,

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and all the other components of the claim are all in the 026 specification.

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The point of contention is the communication protocol.

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Is one security key sent the first time, a response received, and a second security key sent, and a response received, or are both security keys sent at the same time?

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And the court below found that that is not clear enough in the 026 patent application.

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However, this is not a situation where there are a million different possibilities.

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Everybody acknowledges that security keys and multiple exchange security keys are disclosed in the O2 specification.

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So the only possibility is you send one, and then you send the second, or you send both at the same time.

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So given just those two possibilities, blaze marks are not needed, as one of the cases mentioned, because this is not a situation where you have a million chemical compounds and a million possibilities of putting the formula together.

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There are only two possibilities.

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And so we believe that the communication protocol is disclosed for one of ordinary scaling DR. OK.

[00:13:16] Speaker 01:
Why don't we hear next from the government?

[00:13:20] Speaker 01:
OK.

[00:13:20] Speaker 01:
And we'll re-store your original five minutes for redouble.

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Thank you, Your Honor.

[00:13:38] Speaker 04:
May I please support?

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Neology's reply does not challenge the substantial evidence supporting the Commission's determination that five claim limitations, three of which appear in all of the asserted claims, lack written description support in the common specification.

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That substantial evidence can be found in the Commission's brief and is discussed at pages 8 to 12 and 30 to 40.

[00:14:00] Speaker 01:
Can you address what we spend virtually all of our time just discussing, which is the question of whether

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Neology waved, as the commission said it did, an argument that written description here was provided by the claims filed in 2012 in the two applications that led to these two patents, never mind the 026.

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Right, so the commission did not abuse its discretion in finding that Neology simply did not raise its original claims argument before the ALJ.

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and in his petition for a commission review.

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And in here, original claims is a squirrely term here.

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Let's call them the 2012 claims, because the original claims were filed as part of the 026, and the law is very different about those two things.

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I completely agree, Your Honor.

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So let's call them the 2012 claims.

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So Neology's counsel points to two pages in the appendix.

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None of those pages actually

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clearly state that Neology was relying on its claim language for written description support for 2012 filing date.

[00:15:16] Speaker 01:
Also, Neology's reply... Right, in the reply, I think Mr. Joshi says that the lawyer for the commission staff acknowledged that this argument was being made.

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Can you address that?

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Right, so Neology's reply on page three quotes from OUII's attorney at the hearing and also quotes from CAPTCHA's expert testimony.

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Neither of those passages actually state that Neology was relying on the claim language for a 2012 filing date.

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Those statements were simply to state that, well, if we're looking at written description, claims could be part of the written description support.

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But neither one of them, OUI or CAPTCHA's expert, admitted that there is written description support from the claim language itself.

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And, you know, the commission gave neology an opportunity.

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That's true, but I'm not sure that's responsive to the ground on which the commission decided this particular matter, which was wavered, namely that neology simply never

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argued to the ALJ that the 2012 claims fall into that category, maybe not a large category, but not an empty category, where claims can provide their own written description of support.

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Well, the statements that Neology quotes on its reply brief on page three simply does not support a lack of waiver.

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Those statements simply state that, well,

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claims could be considered part of the specification, but they do not go as far as Neology's counsel asserts that these are statements that there is actually, Neology adequately raised an argument that claim language itself provides adequate written search and support for 2012 filing date.

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And Neology's briefs marshal no evidence to support this argument.

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Its briefs cite no statement that it has made to clearly

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say that it's presented such an argument before the ALJ.

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And I'd like to point out that even after the ALJ found these claims invalid for lack of written description and that Neology could not claim a 2003 priority date in its Commission's petition for review, it never raised an original claim or a 2012 claims argument at that time, too.

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It was only after the Commission requested

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the parties to brief, based on the record evidence and arguments made before the ALJ, whether the ALJ had conflated the two issues, that neology then presented arguments that, you know, the ALJ should have looked at the claim language and other underlying disclosures.

[00:18:18] Speaker 01:
Can I ask you a merits question?

[00:18:22] Speaker 01:
Some of the references to keys that appear in the

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include the word exchange keys.

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If nothing's being transmitted back and forth, what does that word mean?

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So the evidence that was presented, the spec uses credit and debit exchange keys, exchange encrypted keys, security keys, cryptographic keys.

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It even uses encryption keys.

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All of these keys are disclosed at one

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part of the specification or another.

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There's no evidence that these exchange keys are the security keys as Neology claims.

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In the very paragraphs, the three paragraphs that recite security keys that are stored in the cryptographic block, that very paragraph also states that cryptographic keys reside in the cryptographic block.

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And it's telling that Neology's briefs mention nothing about cryptographic keys, yet that was one of the basis for it.

[00:19:24] Speaker 01:
But I ask you, I think specifically that the one that at least caught my attention, maybe incorrectly, is that there's either one or two uses of exchange keys.

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And exchange sounds like something is being passed back and forth.

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So at one time at the hearing, Neology's expert testified that

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inherent in the concept of exchange is that there's transmission.

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But the commission found that that testimony was not credible because prior to the hearing and his deposition, he had said these very same exchange keys do not mean that he did not know whether those were actually exchanged between a reader and a transponder.

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And so given this conflicting testimony, the commission and the ALJ determined that his testimony was just simply not credible.

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and on the face of all of the other record evidence, including intervenors' expert testimony and the inventor's testimony, and looking at the specification itself.

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What did the testimonies supporting the written description challenge say the word exchange meant when used in reference to exchange keys if it didn't mean that those keys were moving back and forth?

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It's kind of a striking word.

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It is.

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And the ALJ, if I could refer to the ID at appendix 162, the ALJ explained, well, a person of ordinary skill would not know whether exchange refers to transmitting keys between a reader and a tag.

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There's nothing that describes to one of ordinary skill this exchange is actually between the reader and the tag as required by the claims.

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but also that this could be an exchange of data between the reader and tag and not really an exchange of the actual keys, the security keys as the claims require.

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So just using the word exchange keys and exchange encrypted keys, one of ordinary scale in the art looking at this disclosure does not know whether there's exchange of data, who's being exchanged, what is being exchanged between what two entities are being changed.

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I can't recall, did the ITC or the ALJ explain

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You're telling us why it's reasonable to conclude exchange key doesn't necessarily mandate the transmission of these keys or passing keys back and forth between the transponder and reader.

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So then is there some alternative reasonable reading of what an exchange key is for?

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So what the Commission found was that there's substantial evidence supporting because the cryptographic block has both security keys and cryptographic keys.

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that there's substantial evidence supporting that these exchange keys are in fact cryptographic keys and not security keys.

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There's no dispute between the parties' experts that cryptographic keys and security keys are two different things and that this specification distinguishes between the two.

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And this is Goldberg's testimony.

[00:22:38] Speaker 02:
Stay with exchange keys.

[00:22:40] Speaker 02:
You're now talking about cryptographic keys and security keys.

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I'm just trying to understand what are these various references to exchange keys and the specification about.

[00:22:49] Speaker 02:
What are they really about, if they're not about swapping keys back and forth?

[00:22:54] Speaker 04:
There's testimony from the adventure that these, at one point in the spec, it's for exchange keys, for exchanging.

[00:23:03] Speaker 04:
Let me see what the exact wording is.

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with four exchange encrypted keys, that these are encryption keys.

[00:23:14] Speaker 02:
And encryption keys are, for purposes of this investigation before the experts, they agree that... So these are additional cryptographic keys beyond the cryptographic keys already discussed and contemplated in the specification?

[00:23:29] Speaker 04:
Right.

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This is why it supports the Commission's determination that these exchange encrypted keys are the cryptographic keys, which are the same thing as these encryption keys that are also discussed in

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in the specification.

[00:23:40] Speaker 02:
You're telling me the patent is using three different terms to describe the same thing?

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Cryptographic keys, encryption keys, exchange keys, they really all mean the same thing?

[00:23:49] Speaker 02:
That is what the evidence is.

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That can't be right.

[00:23:51] Speaker 04:
Well, if you look at the prosecution history for the 026 application, where the applicant added the claim language security keys for the very first time, and for support, this is at appendix 4227,

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For support of this newly added security key limitation, the applicant stated that the present application teaches a security management unit that checks and validates cryptographic keys that are sent to a cryptographic block.

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The cryptographic block stores the keys and these keys are checked and validated to grant or deny access to the memory chip.

[00:24:28] Speaker 02:
Well, that's possibly equating security keys with cryptographic keys.

[00:24:32] Speaker 02:
I'm trying to figure out what are the exchange keys as disclosed and what are they actually doing.

[00:24:37] Speaker 04:
And nowhere in this response did applicants rely on exchange keys for disclosure of these security keys.

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For all of the evidence, the commission even asked the parties to brief during review of the ALJ's ID all of these different uses of the keys in the disclosure.

[00:24:58] Speaker 04:
What does it mean?

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What is the relationship between all of these keys?

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And do any of these keys actually mean the claimed security keys?

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And in none of the briefings before the commission, were the parties able to provide any additional evidence beyond this.

[00:25:17] Speaker 01:
Thank you.

[00:25:17] Speaker 01:
I think we should hear from Mr. Mammon now.

[00:25:41] Speaker 03:
Good morning, Your Honors.

[00:25:42] Speaker 03:
Nathan Mammon on behalf of the intervenors, CAPS, Traficom, and STAR systems.

[00:25:48] Speaker 03:
If I may start with, Judge Frauner, your last question, and Judge Chen on the exchange of what exchange keys mean.

[00:25:55] Speaker 03:
I think you'll find that the inventor at appendix 1705 and 1706 admitted that exchange keys are not actually sent, that they're keys used for encryption, but they would not be keys that were sent.

[00:26:07] Speaker 03:
And there is reference to the inventor's deposition testimony in that

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those passages as well, where he acknowledged it during his deposition.

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He was asked point blank, are these exchanged?

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And he said no.

[00:26:18] Speaker 03:
The neology's expert, Mr. Goldberg, at 3058 and 3060 and 3061 acknowledged that exchange keys are used for encryption and may not be exchanged between a reader and tag.

[00:26:31] Speaker 03:
And that's neology's witnesses.

[00:26:33] Speaker 03:
Dr. Durgan, the intervener's witness, testified in an exchange.

[00:26:36] Speaker 02:
Didn't Goldberg also say that

[00:26:39] Speaker 02:
Well, you said a few different things, didn't you?

[00:26:41] Speaker 02:
And that goes to your honor.

[00:26:42] Speaker 02:
You're skipping over something.

[00:26:44] Speaker 02:
You did at one point say it means that exchange keys are transmitted.

[00:26:48] Speaker 03:
He did on his direct testify that.

[00:26:50] Speaker 03:
When confronted on cross-examination about contrary testimony, both at deposition and his expert report, he admitted on cross-examination that actually he had had a different opinion and stated that.

[00:27:01] Speaker 03:
And the commission was entirely in the ALJ, entirely in the right to weigh that conflicting testimony and figure out

[00:27:07] Speaker 03:
which time was Mr. Goldberg telling the truth, and combined with the other evidence, including an intervener's expert, which one to believe.

[00:27:18] Speaker 03:
And so if I didn't mention it, Dr. Juergens' testimony is at appendix 2433.

[00:27:22] Speaker 03:
Now, if I may go back to the waiver question, and Judge Chen, your question of whether this was ever raised of the original claims,

[00:27:29] Speaker 03:
Neology pointed to today to two... Can we just... I'm sorry.

[00:27:34] Speaker 01:
Can we keep calling them the 2012 claims?

[00:27:36] Speaker 01:
2012, yes, Your Honor.

[00:27:38] Speaker 03:
We fully agree with that description.

[00:27:42] Speaker 03:
Neology referred, Your Honors, to Appendix 765 and Appendix 4775.

[00:27:47] Speaker 03:
If, Your Honors, when you look at that, though, it's very clear in the context what they're saying is we're relying on 026 application.

[00:27:55] Speaker 03:
And even the language of except for the claims.

[00:27:57] Speaker 03:
What they're referencing in that passage on 765, except for the claims, our 044 patent and 436 patent are exactly the same as our 026 application.

[00:28:07] Speaker 01:
That was the argument.

[00:28:08] Speaker 01:
What about the statement of the office staff quoted on page 3 of the Gray brief?

[00:28:15] Speaker 01:
I think it's from 1391 at the appendix.

[00:28:18] Speaker 03:
The statement that OUII staff attorney made in the opening was,

[00:28:23] Speaker 03:
I think acknowledgment that, look, certainly it's possible to have original claims provide support.

[00:28:32] Speaker 03:
But that was never relied on here.

[00:28:34] Speaker 03:
And the levels of waiver, Your Honor, are multitude.

[00:28:37] Speaker 03:
There's at least six levels of waiver where neology has waived this argument.

[00:28:41] Speaker 03:
Starting first with the notice of priority date that was acquired by the ALJ's ground rule

[00:28:47] Speaker 03:
On March 2nd, they submitted a notice of priority date asserting priority to 2012, never raising the 2012 claims.

[00:28:56] Speaker 03:
And the ground rules required them to add- 2002 to the provisional, the original provisional.

[00:29:02] Speaker 03:
Never raising the 2012 claims, and the ground rules required them to show good cause, never change that date.

[00:29:08] Speaker 03:
Going to responses to the intervenors' contention and derogatories, which you'll find in Appendix 6240 through 6248,

[00:29:16] Speaker 03:
They were asked in a response like, look, we think your claims don't have written scriptural support.

[00:29:21] Speaker 03:
Identify for us where you think they are.

[00:29:24] Speaker 03:
Even in those passages where they talked through the 044 and 436 patents, they never mentioned the claims.

[00:29:31] Speaker 03:
They identified portions of the specification from those applications as filed in 2012, and not, did not include the claims.

[00:29:39] Speaker 03:
They, they omitted those.

[00:29:40] Speaker 03:
In the pre-hearing brief at Appendix 42, as the Commission opinion references, they never argued reliance on original claims.

[00:29:48] Speaker 03:
Their opening statement, defined in Appendix 1323, Neology's counsel at the time acknowledged that the respondents argued the claims lack written description and that they also contend, quote, they also contend that they're not supported by the disclosures and therefore lack priority.

[00:30:06] Speaker 03:
Neology's counsel said that the

[00:30:09] Speaker 03:
Basically, the two questions become one.

[00:30:11] Speaker 03:
The crux of the arguments is that the disclosure of the 036 application does not provide adequate written description for the asserted claims of the security key patents, never relying on original claims.

[00:30:22] Speaker 01:
Can I ask you this question?

[00:30:27] Speaker 01:
Suppose, just for purposes of this question, that this issue had not been waived.

[00:30:34] Speaker 01:
What is the argument that you would make for why

[00:30:39] Speaker 01:
that 2012 claims are not sufficient written description support for the ultimately issued claims in these two patents, 436 and 044.

[00:30:51] Speaker 03:
Well, certainly the argument, I mean, this court has acknowledged in Gentry Gallery and other cases in Ariad that original claims don't always provide support.

[00:31:01] Speaker 01:
Right.

[00:31:02] Speaker 01:
Your Honor.

[00:31:02] Speaker 01:
Not always.

[00:31:03] Speaker 01:
And the kind of claims that were featured in Ariad were claims, essentially, where

[00:31:09] Speaker 01:
the originally filed claim that's being talked about as the possible basis is very general and very functional and that wasn't going to be enough.

[00:31:20] Speaker 01:
This doesn't seem to be that kind of claim basis for a written description argument.

[00:31:27] Speaker 01:
This seems rather specific.

[00:31:31] Speaker 03:
To answer your question, if you look at Gentry Gallery and other cases, there could be such a disconnect, and there is such a disconnect between these claims and what the patent talks about, that there would be a written description issue there.

[00:31:43] Speaker 03:
But to your honest point, this was because this was waived six times over and only got to four of those waivers, it was never, there was never any expert testimony by their side or anyone to address these original claims.

[00:31:56] Speaker 03:
It was not at issue during the hearing because they

[00:31:59] Speaker 03:
were clearly relying on the 026 application.

[00:32:01] Speaker 03:
And they had to.

[00:32:02] Speaker 03:
They had to, because they omit what Mr. Josie called a prior arc, was the sixth standard that they were accused of infringing.

[00:32:10] Speaker 03:
Under this court's precedent, several cases, if the thing that you're accused of infringing would post a predate, your claims, you're invalid over those claims.

[00:32:20] Speaker 03:
And so it was an oversight that they

[00:32:23] Speaker 03:
had to claim priority back to 3026 application, because if they didn't, as their own witnesses admitted, the claims would have been invalid.

[00:32:38] Speaker 03:
Unless your honors have any questions, I think the

[00:32:46] Speaker 03:
This is only one of the grounds.

[00:32:47] Speaker 03:
So, you know, we think it's sufficient, but certainly there are other ground, prior ground that the Commission found the patent invalid would be independent sufficient.

[00:32:56] Speaker 03:
Thank you.

[00:32:58] Speaker 01:
Mr. Joshi.

[00:33:02] Speaker 00:
Thank you, Your Honor.

[00:33:03] Speaker 00:
So a couple of things I'd like to point out.

[00:33:06] Speaker 00:
First, I'd like to give you, Your Honor, a reference to APPX 4775.

[00:33:13] Speaker 00:
This is our

[00:33:16] Speaker 00:
first post-hearing brief, initial post-hearing brief where it states at the bottom.

[00:33:24] Speaker 00:
First claims based on the specification that has been used throughout the security key patent family beginning with the 026 application and continuing through the applications that have been filed after the 044 and 436 patents have never received even a first rejection on the basis of

[00:33:45] Speaker 00:
lack of written descriptions, so there at least we implicitly invoke the original e-file claims.

[00:33:51] Speaker 00:
I'd like to mention that enable, enablement has never, the enablement of the patents have never been challenged.

[00:33:59] Speaker 01:
And the, the, the time... Can you say, just address one point that I think I'm remembering from the government's brief.

[00:34:06] Speaker 01:
The government defends the, the commission's finding of waiver and then goes on to make a couple of, maybe really one,

[00:34:15] Speaker 01:
point on the merits of this 2012 claim issue and the point that I think is sticking in my mind is you said repeatedly these are continuation applications not continuation in part applications so you're not really well positioned to say something was in the 2012 claims that wasn't already in the 026 application and in order for this

[00:34:43] Speaker 01:
concentration on the 2012 claims to make any difference, there would have to be a difference between those two things, and then it wouldn't be a continuation.

[00:34:52] Speaker 01:
Can you address that?

[00:34:53] Speaker 00:
Well, Your Honor, continuation applications are filed all the time.

[00:34:57] Speaker 00:
Where the originally filed claims of the continuations are different from the preceding case, but they're still called continuations.

[00:35:05] Speaker 00:
And the originally filed claims are still considered part of the specification.

[00:35:11] Speaker 00:
OK.

[00:35:13] Speaker 00:
With respect to contention interrogatories that they brought up, well, in contention interrogatories, we would answer based on what's being contended.

[00:35:26] Speaker 00:
And they have never made any kind of a prima facie case, and they still couldn't make it now when you gave them a chance to say why, in this case, they originally filed claims which everybody agrees are identical to the issued claims.

[00:35:38] Speaker 02:
Can you just say 2012 claims?

[00:35:40] Speaker 00:
My apologies.

[00:35:41] Speaker 00:
Why the 2012 claims, which are identical, there are situations where cases talk about Guinness species, what is actually mentioned in the originally filed claims versus what they mature into at the end.

[00:35:55] Speaker 00:
And if there is a difference, then sometimes there might not be support.

[00:35:58] Speaker 00:
But this is a textbook case where there is 100% support.

[00:36:01] Speaker 00:
The 2012 claims are identical to the issued claims.

[00:36:08] Speaker 00:
One more thing I would like to mention is that the Commission's and the ALJ's approach to analyzing the SNOTgrass prior art reference versus analyzing the 026 specification is very different and inconsistent.

[00:36:25] Speaker 00:
With respect to SNOTgrass, they stretch every maybe into all the possibilities.

[00:36:31] Speaker 00:
For example, with Capital TAG,

[00:36:34] Speaker 00:
There are only five mentions of that term as compared to 46 mentions of arbitration number in that specification.

[00:36:40] Speaker 00:
But the PTAP got it exactly right, that there is no where there is disclosure in the SNOTGRAPH specification as to what the capital THG does in the reader-transponder interaction.

[00:36:53] Speaker 00:
But there, they say, well, this is possible.

[00:36:55] Speaker 00:
That is possible.

[00:36:56] Speaker 00:
The experts said this.

[00:36:57] Speaker 00:
But the specification doesn't say anything.

[00:37:00] Speaker 00:
Now take a look at the old two.

[00:37:01] Speaker 02:
But did the experts agree?

[00:37:03] Speaker 02:
In this case, I mean, maybe there weren't the same expert testimony in those IPR petitions.

[00:37:10] Speaker 02:
But in this particular case, did both experts agree that there's a received tag that's compared to a stored tag?

[00:37:19] Speaker 00:
No, no.

[00:37:20] Speaker 02:
No, they didn't.

[00:37:21] Speaker 02:
No.

[00:37:21] Speaker 02:
There wasn't anything like that.

[00:37:23] Speaker 00:
No, no.

[00:37:24] Speaker 00:
In fact, the SNARTgrass specification teaches a way

[00:37:29] Speaker 02:
No, I'm talking about what the experts agreed to.

[00:37:32] Speaker 02:
I know you want to go on and talk about something else.

[00:37:35] Speaker 00:
No, no, I apologize.

[00:37:36] Speaker 02:
Other references in snotgrass itself that you think teach a way, but I'm more trying to understand what the experts testified to.

[00:37:45] Speaker 00:
No, the experts, their expert obviously said that the capital tag

[00:37:49] Speaker 00:
could be used as a security key, but our expert never agreed to it.

[00:37:52] Speaker 02:
No, I'm not talking about the buzzword security key.

[00:37:55] Speaker 02:
I'm just talking about a received tag being compared against the stored tag.

[00:38:00] Speaker 02:
Did your expert agree that something like that happens in Snodgrass?

[00:38:04] Speaker 02:
No, we did not.

[00:38:05] Speaker 02:
OK.

[00:38:06] Speaker 00:
We did not.

[00:38:07] Speaker 00:
And even if they did, they would be wrong, because the specification doesn't

[00:38:12] Speaker 01:
Your time has actually run out.

[00:38:15] Speaker 01:
Thank you.

[00:38:16] Speaker 01:
Thank you.

[00:38:18] Speaker 00:
Thank you, Your Honor.