[00:00:02] Speaker 04:
The first case for argument this morning is 17-2169, Vedanti Licensing versus Google.

[00:00:09] Speaker 04:
Mr. Asher?

[00:00:13] Speaker 04:
Are you the appellant?

[00:00:14] Speaker 03:
Appellant, yeah.

[00:00:15] Speaker 04:
So you're in the wrong seats.

[00:00:17] Speaker 04:
Aren't you in the wrong seats?

[00:00:19] Speaker 03:
Yes.

[00:00:20] Speaker 03:
We had a case yesterday, and I can't believe we got to sweep you in.

[00:00:25] Speaker 04:
Oh, OK.

[00:00:25] Speaker 04:
All right.

[00:00:26] Speaker 04:
Well, we've got to.

[00:00:27] Speaker 04:
We'll keep our hands on straight then, because this is confusing for us.

[00:00:30] Speaker 04:
So all right, you're the appellant.

[00:00:32] Speaker 04:
No, I mean, I'm going to stay here for now.

[00:00:34] Speaker 04:
We'll just try to focus on.

[00:00:36] Speaker 04:
So you go first, Mr. Asher?

[00:00:38] Speaker 04:
Yes, please proceed.

[00:00:47] Speaker 03:
The PTAB failed to properly construe the 339 patent claims as a two-stage computer-implemented processing system.

[00:00:55] Speaker 03:
Computer processes the framed data was critical.

[00:00:58] Speaker 03:
A computer process in a first stage generates data defining a region or, in claim seven, an optimized matrix that will ultimately be transmitted to a receiving system for generating a display.

[00:01:11] Speaker 03:
And before transmission, a second stage process has received that region defining data and selects pixel data.

[00:01:20] Speaker 03:
The specification describes the advantages.

[00:01:22] Speaker 03:
System 100 determines the optimal data for transmission based on the end use of data.

[00:01:29] Speaker 03:
Further, the number of pixels to transmit can be decided on a region by region basis within the frame or frame to frame.

[00:01:37] Speaker 03:
The pixel selection system can be adjusted in any number of ways.

[00:01:42] Speaker 03:
Whereas in SPRIGS, the prior art, as described in Google's petition, SPRIGS discloses a coding process that outputs

[00:01:52] Speaker 03:
region data, and pixel data.

[00:01:55] Speaker 03:
But Strigs teaches, it's that one coding process that produces both.

[00:02:00] Speaker 04:
Can I just step back for a minute to put this all in context?

[00:02:02] Speaker 04:
So I want to make sure I understand.

[00:02:04] Speaker 04:
The context in the dispute here is that the board said it's not required that the analysis system be a separately identifiable component from the pixel selection system.

[00:02:17] Speaker 03:
Correct.

[00:02:18] Speaker 04:
So that's the issue we're talking about.

[00:02:19] Speaker 04:
So why don't you point us specifically

[00:02:22] Speaker 04:
to the best you have, I guess, in the specification or whatever to why the board here in its conclusion.

[00:02:31] Speaker 03:
Well, and the claims?

[00:02:32] Speaker 03:
Yes.

[00:02:32] Speaker 03:
The claims are separate.

[00:02:33] Speaker 03:
There's a separate element for the analysis system.

[00:02:36] Speaker 03:
There's a separate element for the pixel selection system.

[00:02:39] Speaker 02:
Yes.

[00:02:40] Speaker 02:
And the specification?

[00:02:41] Speaker 03:
You can look at the drawings.

[00:02:43] Speaker 03:
In the first figure one, there's a pixel selection system and a frame analysis system.

[00:02:52] Speaker 03:
And they are separately described in figure two is the frame analysis system.

[00:02:56] Speaker 03:
Figure three is the pixel selection system.

[00:02:59] Speaker 03:
There are two separate systems.

[00:03:01] Speaker 03:
In the specification, there's reference to that the pixel selection system selects pixels from a predefined matrix or region.

[00:03:18] Speaker 03:
There's no, it's the whole,

[00:03:21] Speaker 03:
gist of the patent.

[00:03:32] Speaker 03:
And it's confirmed by the claims.

[00:03:34] Speaker 03:
And the claims specify that there's a separate element for each.

[00:03:38] Speaker 04:
Yes.

[00:03:38] Speaker 04:
Well, there's no dispute, I don't think, that they have to be separately identifiable processes.

[00:03:47] Speaker 04:
I'm not telling you.

[00:03:48] Speaker 04:
I'm asking you if I'm correct.

[00:03:51] Speaker 04:
that the dispute lies in whether they must be separately identifiable components or structures?

[00:03:58] Speaker 04:
Am I right in my understanding?

[00:04:00] Speaker 04:
I'm just trying to figure out if I'm correctly seeing what the dispute is between you and your friend on the other side.

[00:04:08] Speaker 03:
I have a dispute with the decision.

[00:04:10] Speaker 03:
The decision did not treat the pixel selection system and the analysis system as separate identifiable components.

[00:04:20] Speaker 03:
I'm not sure if Google has a problem with that at all.

[00:04:22] Speaker 03:
Their brief seemed to say that there was nothing preventing the two systems from being in the same computer, which we all accept.

[00:04:32] Speaker 04:
But what did the board say?

[00:04:34] Speaker 03:
The board took that further.

[00:04:37] Speaker 03:
When I indicated in oral hearing before the PTAB court that they could both be in the same computer,

[00:04:48] Speaker 03:
I followed up by saying, but they have to be separately identifiable processes within that computer.

[00:04:55] Speaker 03:
And they took that as a concession that separateness wasn't required.

[00:05:04] Speaker 01:
But didn't the board consider those two separate functions in its analysis?

[00:05:13] Speaker 03:
They did talk about the separate functions.

[00:05:14] Speaker 03:
And it's not clear to me how

[00:05:19] Speaker 03:
But it's not clear that they identified a separate pixel selection process that corresponds to the claims.

[00:05:27] Speaker 03:
They seem to be satisfied that everything was there, that pixel data came out at the end, that region data came out at the end, but they didn't look to the process and how you get there.

[00:05:37] Speaker 03:
This is a new process.

[00:05:39] Speaker 03:
And the process was a two-stage one, which produced the regions first, the region data, and then selected pixels from

[00:05:48] Speaker 03:
each region.

[00:05:50] Speaker 03:
And they were not diligent about finding a selection process that performed as claimed.

[00:06:00] Speaker 01:
So, I mean, is your argument that they failed to recognize some sort of a timing requirement that one needs to be performed before the other?

[00:06:14] Speaker 03:
I don't know if I returned it.

[00:06:16] Speaker 03:
One before the other certainly is required, yes.

[00:06:19] Speaker 03:
And that was not clear from here.

[00:06:21] Speaker 03:
It was not clear that one identified a region, that defined a region from which one was selecting pixels.

[00:06:29] Speaker 03:
So understand that this is a data reduction process.

[00:06:32] Speaker 03:
We're trying to reduce the amount of data that's being sent.

[00:06:36] Speaker 03:
So the pixel selection process involves picking individual pixels from a choice of multiple pixel data.

[00:06:43] Speaker 01:
But it seems to me that they were certainly aware of both of these functions.

[00:06:49] Speaker 01:
And their analysis includes a discussion about both of these functions.

[00:06:55] Speaker 01:
And the conclusion was that the references sustained the rejection.

[00:07:02] Speaker 01:
Why is that wrong?

[00:07:04] Speaker 03:
It's wrong because all they said was that selection happened somewhere in the coding process.

[00:07:10] Speaker 03:
They talk about their expert who said,

[00:07:13] Speaker 03:
There are certain steps that do region generation and additional steps that do pixel selection.

[00:07:21] Speaker 03:
But I don't even know what they're pointing to.

[00:07:24] Speaker 03:
They pointed to different things at different times.

[00:07:27] Speaker 03:
So in certain places, they've taken on this new approach that's not present in the petition in which a pixel, which is a coordinate and its values,

[00:07:43] Speaker 03:
And they've dissected it.

[00:07:45] Speaker 03:
And they say identifying the coordinates for the pixel is region data.

[00:07:53] Speaker 03:
And then retrieving the value for the pixel data for the pixel is selecting pixel data.

[00:08:03] Speaker 03:
There's no selection there.

[00:08:05] Speaker 03:
The address is pointing to a pixel.

[00:08:08] Speaker 03:
And it's retrieving the pixel's value.

[00:08:13] Speaker 03:
So there's no selection.

[00:08:15] Speaker 03:
And moreover, so that's the difference.

[00:08:28] Speaker 04:
So why don't you spend a couple minutes, if you don't mind, on your final argument, which is your due process rights and the failure to allow you an opportunity.

[00:08:39] Speaker 04:
Because it seems here there were several steps

[00:08:41] Speaker 04:
including that you filed a surreply and that this came up at various points allowing you an opportunity to give your view.

[00:08:52] Speaker 03:
It did not come up until the reply.

[00:08:53] Speaker 03:
The petition was all in terms of the coding process of SPRIGs producing coordinates and values.

[00:09:02] Speaker 03:
In the petition, they refer to the end result as producing region data.

[00:09:11] Speaker 03:
the blocks defined by the coordinates and the values.

[00:09:16] Speaker 03:
They refer to the same thing for the pixel selection.

[00:09:19] Speaker 03:
The coded output, these values are the values in the middle, S, A, B, C, and D, indicate pixel coordinates and values.

[00:09:29] Speaker 03:
These values are the pixel data.

[00:09:36] Speaker 03:
When it came to the reply, after we had demonstrated

[00:09:40] Speaker 03:
that they had failed to show a separate process for generating region and one that followed that received the region data to produce selected pixel data, they had to recast their arguments.

[00:10:00] Speaker 03:
And they did this.

[00:10:01] Speaker 04:
Exactly.

[00:10:02] Speaker 04:
Can you kind of summarize to me?

[00:10:03] Speaker 04:
Because it looks to me like the final,

[00:10:07] Speaker 04:
final written decision by the board pretty much mirrors the institution decisions.

[00:10:12] Speaker 04:
So where's the gap?

[00:10:13] Speaker 04:
I mean, your argument?

[00:10:15] Speaker 03:
Not at all.

[00:10:15] Speaker 03:
It cites throughout the petitioner's reply and the second supplemental declaration from the expert who completely changed the approach that they were taking.

[00:10:29] Speaker 03:
So in the reply,

[00:10:35] Speaker 03:
all of a sudden they're separating out a pixel into a coordinate and its value.

[00:10:40] Speaker 03:
So the way Spriggs works is that it looks at the corner pixels of a block and it has to determine whether that's going to be a region.

[00:10:54] Speaker 03:
It does an interpolation based on the corner pixel values and compares that with the actual values and determines if those corner pixels are going to be representative

[00:11:06] Speaker 03:
If it is, it's defined a region, moves on to the next.

[00:11:12] Speaker 03:
So it's not until it's defined a region that you can go on to pixel selection, but there is no pixel selection following defining the region because no other pixels can be selected.

[00:11:25] Speaker 03:
Only the corner pixels have been approved for being representative of the block.

[00:11:32] Speaker 02:
Your due process argument, as I understand it, is predicated on the PTO having violated CFR 42.123b when it relied on a supplemental declaration.

[00:11:43] Speaker 02:
I know that you raise other issues as well, but that seems to be the crux of your issue.

[00:11:47] Speaker 02:
As I understand it, your opponent explains that you never made this argument below and that it's therefore waived.

[00:11:55] Speaker 02:
Do you have any response to that?

[00:11:57] Speaker 03:
Yes, there was a teleconference before the board.

[00:12:01] Speaker 03:
We asked for the opportunity to motion to move to strike the declaration and they refused us any opportunity to file such a motion.

[00:12:10] Speaker 03:
So we had no opportunity to submit any reasons.

[00:12:15] Speaker 03:
We asked for the opportunity to submit a declaration in response to the 125 paragraph declaration of their expert.

[00:12:21] Speaker 02:
In that telephone conference, you made a number of objections, including one based on 42.23b, but you never mentioned 42.123.

[00:12:33] Speaker 02:
Why is that not waiver?

[00:12:37] Speaker 02:
In the telephone conference, you requested to make a bunch of

[00:12:43] Speaker 02:
objections and they rejected your ability to file paper, but you never mentioned it, did you?

[00:12:51] Speaker 03:
I don't have a transcript of the call.

[00:12:55] Speaker 02:
And then you have paper objections at page 402 of the appendix and 403, you wrote paper objections as well, correct?

[00:13:03] Speaker 02:
Am I correct about that?

[00:13:04] Speaker 03:
Yes, there were some, those were evidentiary rejections.

[00:13:07] Speaker 02:
Yeah, but you didn't, this one wasn't included in it.

[00:13:11] Speaker 03:
Yes, this is a different issue.

[00:13:13] Speaker 03:
One is evidentiary, that you're allowed to object on evidentiary, like hearsay and things like that, whether the 42123 goes to the motion to strike.

[00:13:23] Speaker 03:
It should have been excluded.

[00:13:25] Speaker 03:
It shouldn't have been admitted because they didn't follow the rules of the board.

[00:13:31] Speaker 02:
I'm sorry, I'm confused.

[00:13:32] Speaker 02:
Why couldn't you have mentioned it in those same objections that you filed that are listed in the appendix at 402 and 403?

[00:13:37] Speaker 03:
Because those objections are designed

[00:13:39] Speaker 03:
it's clear in the PTAB rules and practice that those objections deal with evidentiary issues.

[00:13:47] Speaker 03:
42123 is a procedural issue that they fail to follow.

[00:13:52] Speaker 04:
You're into your rebuttals, so why don't we hear from the other side?

[00:14:08] Speaker 00:
You're the appellee, right?

[00:14:11] Speaker 00:
We will switch the signs after our two arguments so that everybody else is forewarned, and it will help you through the rest of the day, I hope.

[00:14:19] Speaker 04:
You have no idea how set we are in our ways.

[00:14:23] Speaker 00:
So to be clear, Your Honor, good morning, and may it please the Court, the judgment should be affirmed, even though we're on this side of the table.

[00:14:32] Speaker 00:
And the judgment should be affirmed, Your Honor, for three basic reasons.

[00:14:37] Speaker 00:
First, the board.

[00:14:38] Speaker 00:
construed the claims properly under the broadest reasonable interpretation standard, a term I note which my friend didn't even attempt to deal with in talking about his claim construction argument.

[00:14:50] Speaker 00:
Secondly, the board's decision is supported by substantial evidence.

[00:14:54] Speaker 00:
And thirdly, whether or not there was waiver, there wasn't a due process violation here in this case.

[00:15:01] Speaker 00:
Let me start with the claim construction argument that my friend raised.

[00:15:06] Speaker 00:
Spregs is actually relatively simple to explain.

[00:15:09] Speaker 00:
In column two, it refers to operations one, two, and three.

[00:15:16] Speaker 00:
Operation one defines a region and it says that if that region is satisfactory, then we're done and we can transmit that.

[00:15:24] Speaker 00:
And if not, we move to operation three and we might repeat operation three until the frame is subdivided to the point where it's ready for transmission.

[00:15:34] Speaker 00:
And that takes place in operation two.

[00:15:37] Speaker 00:
So what my friend says is the analysis system can be found in operation one working with operation three.

[00:15:45] Speaker 00:
And what my friend says is the pixel selection system can be found in operation two.

[00:15:49] Speaker 00:
That's effectively what the board found both in its initial determination to grant review of this IPR and in its final decision.

[00:15:58] Speaker 00:
And Chief Judge Prost, I think you pointed out that there was no

[00:16:03] Speaker 00:
You didn't see a distinction between the initial, the institution decision, excuse me, I need to get my ID correct here.

[00:16:12] Speaker 00:
The institution decision at page appendix 99 tracks exactly, and it even says here at page 99 that Google maps a spread selection of quarter pixel values for transmission to the pixel selection of claim one.

[00:16:28] Speaker 00:
So any notion that the quarter pixel values weren't in play at that point

[00:16:33] Speaker 00:
is belied by the record in this case.

[00:16:35] Speaker 00:
The case law in this area, by the way, is very clear, and it's established predominantly by the legion of cases that we've cited in our brief, led by the applied medical research case.

[00:16:47] Speaker 00:
Just because there are separate limitations, that doesn't create a presumption that there are separate components in either an accused device or in an invalidating reference, as we have here.

[00:16:59] Speaker 00:
And the fact that this is obvious

[00:17:01] Speaker 00:
takes us even farther afield from that.

[00:17:05] Speaker 00:
My friend said that his best argument from specification was the claims as well as figures 1, 2, and 3.

[00:17:13] Speaker 00:
I note that figures 1, 2, and 3, as described in column 2, lines 1 to 11, are all described as exemplary.

[00:17:20] Speaker 00:
They are not as described in the Gauss invention, the Gauss case on which my friend relies so heavily.

[00:17:28] Speaker 00:
They are not described in the specification in any way as, quote, the invention, or this is the point of the invention, not at all.

[00:17:37] Speaker 00:
I think one last observation is that my friend moves back and forth between calling this a system or a process.

[00:17:45] Speaker 00:
This is a system claim.

[00:17:47] Speaker 00:
It's not a method claim.

[00:17:49] Speaker 00:
And with regard to what the analysis system and the pixel selection system do,

[00:17:56] Speaker 00:
that set forth in Operations 1, 2, and 3 of the reference.

[00:18:03] Speaker 00:
With regard to the due process objection, I think that the argument I've just given with regard to showing you where the argument was made, where it's been maintained, should satisfy the courts in response to what my friend has said.

[00:18:16] Speaker 00:
But to the extent my friend is saying that there was new evidence offered or a new theory offered in the reply declaration, that simply isn't true.

[00:18:26] Speaker 00:
Dr. Grindon, in most places where my friend sites, refers back to and cross-references his first declaration.

[00:18:37] Speaker 00:
This was just an elaboration on what he had already said.

[00:18:40] Speaker 04:
Was that an elaboration based on a response to what the PEP know?

[00:18:44] Speaker 00:
Absolutely, and that's exactly why a reply declaration is needed and why it's allowed by the rules.

[00:18:51] Speaker 00:
Now, I'd add furthermore that the argument here is a constitutional dimension objection here.

[00:18:57] Speaker 00:
And the argument is that they had no opportunity to be heard.

[00:19:01] Speaker 00:
They clearly had notice, but they claim they didn't have an opportunity to be heard.

[00:19:05] Speaker 00:
And I want to point out to the court that at page A122, the board assured them that if there were improper arguments and evidence presented with petitioners' reply, the board would only consider arguments, quote, properly rooted in the petition.

[00:19:21] Speaker 00:
And where the board made its decision, it did exactly that.

[00:19:25] Speaker 04:
So did it rely on the supplemental declaration?

[00:19:27] Speaker 00:
Absolutely.

[00:19:28] Speaker 00:
Absolutely it did, as was its right.

[00:19:30] Speaker 00:
And remember that although they didn't get to put in an additional declaration, they did get to put in objections.

[00:19:38] Speaker 00:
Yes, my friend, my friend Vedanti.

[00:19:40] Speaker 00:
They got to put in objections.

[00:19:42] Speaker 00:
They got to take a second deposition of the expert.

[00:19:47] Speaker 00:
They got to put in a sir reply.

[00:19:48] Speaker 00:
They got to make written objections.

[00:19:50] Speaker 00:
and they got to give oral argument.

[00:19:51] Speaker 00:
All of those were adequate in the Belden v. Burkett case from this court to avoid a due process problem.

[00:19:59] Speaker 00:
There's no due process problem here.

[00:20:01] Speaker 00:
And if you look at page Appendix 26, where the board has the guts of its decision on this issue, you'll see that everything is rooted in either the patent or the original Grimdon report in addition to the supplemental one.

[00:20:16] Speaker 00:
So unless the court has further questions, we're perfectly happy to rest on our briefs at this point.

[00:20:22] Speaker 00:
Thank you.

[00:20:22] Speaker 00:
Thank you, Your Honor.

[00:20:28] Speaker 03:
After Operation 1 is determined that the block can be in the region, the Operation 2 states the addresses and values of the points A, B, C, and D are transmitted.

[00:20:41] Speaker 03:
That's what it says in the patent.

[00:20:43] Speaker 03:
And that's all that happens is transmitted.

[00:20:44] Speaker 03:
There's no selection.

[00:20:46] Speaker 03:
pixels had already been approved in determining the region.

[00:20:51] Speaker 03:
So that was not a selection process.

[00:20:54] Speaker 03:
Claim seven is another claim that's written a little differently and it deals with an optimized matrix data.

[00:21:01] Speaker 03:
One has to optimize the matrix data before selecting pixel data.

[00:21:08] Speaker 03:
Optimize is in the past tense, it had to have happened.

[00:21:11] Speaker 03:
In order to pick the, in order to be able

[00:21:16] Speaker 03:
go to the next step of doing pixel selection based on optimized matrix data, unless that's been optimized and determined to be a region, the claim's not satisfied.

[00:21:29] Speaker 03:
So their attempt to look at pulling out the corner coordinates as region data before selecting or retrieving the corners pixel data is simply not commensurate with claim seven.

[00:21:46] Speaker 03:
Because there's no optimization of those region data.

[00:21:48] Speaker 03:
Those are just proposed corner coordinates for a new block.

[00:21:54] Speaker 03:
And they're merely retrieving the pixel data for those four proposed corner pixels.

[00:22:03] Speaker 03:
And so that's not a region.

[00:22:06] Speaker 03:
It hasn't been determined to be optimized on a region.

[00:22:10] Speaker 03:
And it certainly is not an optimized matrix.

[00:22:14] Speaker 03:
is it has not yet passed the interpolation test.

[00:22:23] Speaker 04:
Any questions?