[00:00:09] Speaker 00:
Is there a pronunciation near the pieja?

[00:00:14] Speaker 01:
PJ, your honor.

[00:00:14] Speaker 00:
PJ.

[00:00:16] Speaker 01:
I will happily answer to either of them.

[00:00:18] Speaker 00:
PJ?

[00:00:19] Speaker 01:
PJ.

[00:00:19] Speaker 01:
Yes, sir.

[00:00:19] Speaker 00:
PJ.

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

[00:00:26] Speaker 00:
I gave you a Spanish pronunciation.

[00:00:30] Speaker 01:
I've had that before, your honor.

[00:00:31] Speaker 01:
I telemarketed it.

[00:00:33] Speaker 00:
It would give you a different pronunciation.

[00:00:35] Speaker 00:
Pieja.

[00:00:38] Speaker 00:
Okay, you reserve three minutes of your time to resolve, correct?

[00:00:43] Speaker 01:
Yes, Your Honor.

[00:00:43] Speaker 01:
You may proceed.

[00:00:44] Speaker 01:
Thank you.

[00:00:45] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:47] Speaker 01:
I'm Michael Peeja on behalf of the appellant today, Apple.

[00:00:50] Speaker 01:
I want to focus this morning on two key reasons why the Board's decision and the claim construction that underlied it were wrong and the decision should be reversed.

[00:00:59] Speaker 01:
First, the Board wrongly concluded

[00:01:02] Speaker 01:
that the broadest reasonable interpretation of a predetermined amount of time required the time to be unchanging but dynamically adapted and updated, and second, the board wrongly concluded that the broadest reasonable interpretation of a predetermined maximum amount of time categorically excluded all times that do not begin in the present.

[00:01:23] Speaker 01:
To the first of those errors, the board rewrote a disputed claim here, predetermined, maximum amount of time.

[00:01:30] Speaker 01:
They rewrote the word predetermined to require a period of time that is an unchanging amount of time.

[00:01:36] Speaker 01:
That's at appendix 45.

[00:01:37] Speaker 01:
And that the start or end time will change dynamically as time passes.

[00:01:42] Speaker 01:
That's at appendix 46 and 47.

[00:01:45] Speaker 01:
The key problem with that is that those limitations are completely divorced both from the intrinsic record

[00:01:52] Speaker 01:
and from the plain and ordinary meanings of the terms.

[00:01:54] Speaker 01:
So to win here, to a secure reversal, Apple need only show that it would have been reasonable for the board to adopt the plain and ordinary meaning of the term predetermined.

[00:02:05] Speaker 01:
What is that plain and ordinary meaning?

[00:02:07] Speaker 01:
This court has repeatedly explicated that the plain and ordinary meaning of predetermined is simply determined or chosen in advance or beforehand.

[00:02:16] Speaker 01:
That was the court's holding in the IGT versus Valley Gaming case.

[00:02:19] Speaker 01:
It was the court's holding in the Ferguson Beauregard case, both of which are cited in our briefs.

[00:02:24] Speaker 01:
And further supporting the fact that predetermined simply means determined in advance is conventional English usage.

[00:02:30] Speaker 01:
The board found that predetermined had to mean unchanging, but there are plenty of times when we refer in common parlance to something as predetermined that is not unchanging.

[00:02:40] Speaker 01:
The number of days in the month of February, for instance.

[00:02:42] Speaker 01:
Predetermined, but every four years or so it changes.

[00:02:45] Speaker 01:
The amount of time between now and 5 p.m.

[00:02:48] Speaker 01:
It's a predetermined amount of time, it's known in advance, but it changes as the day wears along.

[00:02:55] Speaker 04:
What was wrong with the board understanding predetermined maximum amount of time to be a preset quantum of time starting from the present, I guess, is the way they did it.

[00:03:09] Speaker 04:
So for example, if it's one hour, the idea behind the invention is you've predetermined that the length of time, the amount of time is one hour.

[00:03:24] Speaker 04:
it's calling for doing a prediction of trying to figure out whether a person is going to be somewhere within the next hour.

[00:03:33] Speaker 04:
That seems like a straightforward reading of the claim that's entirely consistent with what's being disclosed as examples in the specification, as well as references to current time, to future time, et cetera, in the specification.

[00:03:50] Speaker 01:
So where the board urge, Your Honor, is in limiting the claim to that embodiment and to that specific example.

[00:03:55] Speaker 01:
We don't dispute that the specification discusses.

[00:03:58] Speaker 05:
But what if that's what the invention is, and every single embodiment does that?

[00:04:02] Speaker 05:
It tracks the data in my phone, and it tracks my location, and it does whatever algorithm it does.

[00:04:09] Speaker 05:
And it says, well, at 2 o'clock on Wednesday, it knows that I'm going to be at the Trader Joe's within the next two hours.

[00:04:16] Speaker 05:
Or 4 o'clock on Thursday, I'm going to be at my gym.

[00:04:20] Speaker 05:
That's what they invented.

[00:04:21] Speaker 05:
They didn't invent something that said in this one, on Friday from six to eight, he's going to be wherever.

[00:04:30] Speaker 05:
I mean, isn't this how they would describe it?

[00:04:32] Speaker 05:
And isn't that the embodiments in their patent?

[00:04:36] Speaker 01:
To the first question, that's not how they described it.

[00:04:39] Speaker 01:
I would agree that there are embodiments in the specification that discuss examples exactly like you proposed Judge Chen.

[00:04:46] Speaker 01:
What's lacking is anything in the intrinsic record that limits the claims to something narrower than their ordinary and plain meaning.

[00:04:54] Speaker 01:
The term predetermined does not mean unchanging.

[00:04:58] Speaker 01:
The court has held that in the past.

[00:05:00] Speaker 01:
And the plain English usage of the term is not consonant with that.

[00:05:04] Speaker 04:
So the board in order to read claims in the context of the patent that it's a part of, right?

[00:05:10] Speaker 01:
Exactly.

[00:05:10] Speaker 04:
It's an integrated legal document.

[00:05:12] Speaker 04:
It's not like we can just pluck words from other sources and then use

[00:05:17] Speaker 04:
those meanings of that word in other contexts and just plug it right into this patent necessarily.

[00:05:26] Speaker 01:
So we do need to read the claims in light of the intrinsic record and when we look at the board's decision, the board doesn't cite anything in the intrinsic record or in the extrinsic record for the proposition that the period of the length of the period of time has to be unchanging.

[00:05:40] Speaker 01:
When you look at that part of the board's decision, which comes in at pages 45 and 46 of the decision, same pages in the appendix, there's no site to anything in the specification, nothing in the file history.

[00:05:53] Speaker 01:
In fact, the spec and file history don't use the word unchanging.

[00:05:56] Speaker 01:
They don't say unchanging or static, anything of that kind.

[00:06:00] Speaker 01:
The board imported that limitation solely because it itself believed that that was the plain and ordinary meaning of the term

[00:06:08] Speaker 01:
writ large.

[00:06:09] Speaker 01:
And that's where the examples that I gave come in.

[00:06:13] Speaker 01:
Because the board wasn't saying that if you look at the invention here, you've got a statement that says this predetermined amount of time here is unchanging.

[00:06:21] Speaker 01:
It didn't say that.

[00:06:22] Speaker 01:
And it couldn't, because that's not actually in the patent anywhere.

[00:06:25] Speaker 04:
So can you say one more time what's your conception of predetermined?

[00:06:29] Speaker 04:
Because to me right now, and let's just assume I'm with the board, predetermined amount of time means

[00:06:34] Speaker 04:
You're trying to do a real-time prediction where someone is going to go next within the next hour.

[00:06:42] Speaker 04:
And so the system is predetermined one hour as being the predetermined maximum amount of time.

[00:06:50] Speaker 01:
So predetermined means determined in advance.

[00:06:53] Speaker 01:
That's what this court has repeatedly held it to mean.

[00:06:55] Speaker 01:
That's the plain meaning, as given by the examples in English that I was referring to before.

[00:07:00] Speaker 01:
And that's, there's nothing.

[00:07:02] Speaker 04:
That lines up with what I just explained, doesn't it?

[00:07:05] Speaker 01:
It includes what you just explained, Your Honor, but it is broader than that.

[00:07:10] Speaker 01:
And the key difference is that there's no requirement that something that's decided in advance be unchanging for all time.

[00:07:16] Speaker 01:
Again, the number of days in February changes every fourth year.

[00:07:20] Speaker 01:
It's still predetermined.

[00:07:22] Speaker 01:
To give an example in the context of this pattern, if I said that the time period is from now until 5 p.m., that's predetermined.

[00:07:30] Speaker 01:
I know right now how I'm going to define that time period, but it's not unchanging because as I get closer to 5 p.m.,

[00:07:38] Speaker 01:
and I get closer to the end of that, the duration of that period lessens.

[00:07:42] Speaker 01:
And to your point, Judge Hughes, that actually aligns exactly with the purpose of the invention.

[00:07:47] Speaker 01:
The inventor repeatedly said that what I want to be able to do is I want to be able to deliver predictions at a time when I can influence the behavior of the user.

[00:07:56] Speaker 01:
That's column one, so the very beginning of the pattern.

[00:07:59] Speaker 01:
And in order to be able to do that,

[00:08:01] Speaker 01:
Take some of the examples they have.

[00:08:03] Speaker 01:
They have an example at column 5 about making a prediction about a special offer at lunchtime.

[00:08:10] Speaker 01:
Lunchtime only goes from, say, 12 to 1.

[00:08:12] Speaker 01:
If you want to be able to make an offer in that context, your period of time is fixed by, not by a number from the present, but by the duration of lunchtime, 12 to 1.

[00:08:23] Speaker 01:
And as I get closer to the end of that period, as it's almost the end of the lunch hour, I can't just say, well, I'm still going to predict where the person's going to be an hour from now.

[00:08:31] Speaker 01:
That doesn't make any sense.

[00:08:32] Speaker 01:
That contravenes the purpose of the invention, because you can't influence the behavior of the individual anymore.

[00:08:39] Speaker 01:
Where I think the board really got wrong here, and they say it explicitly on page 45 of the appendix of their decision, is they said, well, we know that the predetermined time has to be unchanging because it has to be the same each time the method is run.

[00:08:54] Speaker 01:
Well, there's no requirement anywhere in the claim that says the method has to be run more than once.

[00:09:00] Speaker 01:
And it doesn't make sense to talk about something being unchanging if it only exists once.

[00:09:06] Speaker 01:
In fact, the board ignored two examples in the specification that show that the method need not be performed once.

[00:09:14] Speaker 01:
One of them is Figure 7, Appendix 61, which shows a flowchart in which the prediction goes through only once for each criteria.

[00:09:21] Speaker 01:
And the second is Column 5, Line 25, Appendix 66, in which the specification talks about

[00:09:28] Speaker 01:
A projection or prediction being performed at 12 o'clock doesn't talk about it being performed again.

[00:09:34] Speaker 01:
So the board's underlying belief that the predetermined period had to be unchanging because the prediction was performed more than once is not supported by the intrinsic record and at a minimum.

[00:09:45] Speaker 01:
At a minimum, it is reasonable for Apple to urge that the broader construction, the same one this court adopted in the other cases, is applicable.

[00:09:53] Speaker 01:
And that's particularly true because the board was not relying on anything in the intrinsic record to come to a different conclusion.

[00:10:00] Speaker 01:
And the board compounded this error by pairing the unchanging requirement with another requirement that the claims be adjusted dynamically

[00:10:08] Speaker 01:
As they put it, dynamic adjustment of both the start and end time is necessary so the period would adjust to a continuously changing present time.

[00:10:15] Speaker 01:
That's at appendix 47.

[00:10:17] Speaker 01:
And again, there's no intrinsic support for that.

[00:10:19] Speaker 01:
The word dynamic isn't anywhere in the intrinsic record.

[00:10:23] Speaker 01:
Not the claim, specification, file history.

[00:10:25] Speaker 01:
And there's no extrinsic evidence either that supports these particular additions.

[00:10:30] Speaker 01:
And so that's the first reason.

[00:10:32] Speaker 01:
We submit that the board erred in concluding that it was unreasonable for a predetermined amount of time to include something that was not unchanging for all time and that was not necessarily dynamically adjustable.

[00:10:45] Speaker 01:
Second, the board erred in a similar way by concluding that the maximum amount of time categorically must start in the present and that any other period of time was excluded.

[00:10:54] Speaker 01:
To affirm, again, the court would have to conclude that it was unreasonable

[00:11:01] Speaker 01:
for the predetermined maximum amount of time to include something that was not starting at this very minute.

[00:11:06] Speaker 01:
And I think the key problem here is that the board never grappled with the proper standard.

[00:11:11] Speaker 01:
They never addressed whether Apple's construction was reasonable.

[00:11:15] Speaker 01:
They were focused on a Phillips-type analysis and showing that, well, their construction is reasonable and that it's supported by some examples in the spec.

[00:11:23] Speaker 01:
Under this court's decision in Google versus Network One Technologies,

[00:11:27] Speaker 01:
I'll cite it in the briefs.

[00:11:29] Speaker 01:
That's not the standard.

[00:11:30] Speaker 01:
If there's more than one construction that's reasonable, the broader governance.

[00:11:34] Speaker 01:
And here, Apple's construction, under which the predetermined amount of time can start in the present or the future, is a reasonable one.

[00:11:42] Speaker 01:
And how do we know?

[00:11:44] Speaker 01:
It's common usage.

[00:11:45] Speaker 01:
There it's reasonable to interpret the starting point as something other than the present time based on how people normally talk.

[00:11:51] Speaker 01:
Say, if I said I predict that Usain Bolt will finish his race within 10 seconds, the time, the beginning of those 10 seconds is not the prediction, it's the beginning of the race.

[00:12:02] Speaker 01:
Here, in parallel,

[00:12:04] Speaker 01:
When the claim says predicting whether the device will be in a location within the predetermined amount of time, the starting point isn't the predicting step.

[00:12:13] Speaker 01:
It's the beginning of the amount of time.

[00:12:15] Speaker 01:
And that may line up with the prediction.

[00:12:17] Speaker 01:
We don't dispute that.

[00:12:18] Speaker 01:
It certainly might.

[00:12:19] Speaker 01:
But it doesn't need to.

[00:12:21] Speaker 01:
And we know that because the period of time can, as the board itself found, be specified by a beginning time and an ending time.

[00:12:29] Speaker 01:
For example, by 3 o'clock and 4.30 PM.

[00:12:32] Speaker 01:
And so the board, in its institution decision, in finding that it never retracted, never stepped back from, said that a quantity or number of times, such as three to four thirty p.m., is equivalent and convertible to, based on common knowledge and basic math.

[00:12:47] Speaker 01:
Those are the board's words.

[00:12:49] Speaker 01:
a quantity or amount of time, like 1.5 hours.

[00:12:52] Speaker 01:
It said that at Appendix 750, page 21, and therefore necessarily implied that the amount of time could be expressed with a beginning and an ending time, not just a number.

[00:13:01] Speaker 01:
And once you get there, and we submit that the board's initial finding was reasonable, and this court has in the past held that findings in an institution decision are evidence that the physician advocated is reasonable if the board adopts them at that point,

[00:13:14] Speaker 01:
Given that, it is at least reasonable to conclude that a predetermined amount of time does not categorically exclude any time that does not start in the present.

[00:13:24] Speaker 01:
Unless your honors have any further questions, immediately I will reserve my remaining time for questions.

[00:13:28] Speaker 01:
Okay, thank you.

[00:13:34] Speaker 00:
Councilor Coady.

[00:13:36] Speaker 02:
Thank you, Your Honor.

[00:13:38] Speaker 02:
May it please the Court, Brian Coyote, and after you, Laloc.

[00:13:41] Speaker 02:
As Apple has noted in its briefs, our position largely tracks the board's decision.

[00:13:46] Speaker 02:
And as you know, it spends about 16 pages just on one term alone.

[00:13:49] Speaker 02:
So I have no intention to delve into the details of it.

[00:13:52] Speaker 02:
I want to instead address kind of broader thematic legal issues and also just what counsel said.

[00:13:59] Speaker 02:
in his argument.

[00:14:01] Speaker 02:
First, I want to address the suggestion that Apple makes that the board somehow went down the errant path of applying a Phillips-type analysis.

[00:14:09] Speaker 02:
That's not what happened.

[00:14:11] Speaker 02:
Second, I want to address specific legal flaws.

[00:14:13] Speaker 02:
And third, I want to address the unchanging dynamic aspect that council addressed.

[00:14:20] Speaker 02:
On the point of the... Sorry, hang on.

[00:14:27] Speaker 02:
On the point of

[00:14:30] Speaker 02:
The legal standard, Apple and several points in their brief refers to the correct, meaning the correct Phillips standard versus the reasonable standard.

[00:14:40] Speaker 02:
And they make it sound like they're night and day like you go down different paths.

[00:14:45] Speaker 02:
First, just in the facts here, the board made it clear that they applied BRI not Phillips.

[00:14:50] Speaker 02:
They noted that the rule change was around this time period.

[00:14:53] Speaker 02:
They specifically stated that BRI was being applied.

[00:14:56] Speaker 02:
Moreover, it makes no sense that the board, a body that is hired and trained initially to only apply BRI, would somehow bring in Phillips' notions.

[00:15:08] Speaker 02:
If anything, Your Honor, I think kind of as a practical matter, you might see this in the future, the reverse.

[00:15:13] Speaker 02:
You might see the future where now that the rule change has been changed to Phillips, the board might say, okay, well, I think this is how it should apply, and you might have to correct them.

[00:15:22] Speaker 02:
But it makes no sense that they would do that.

[00:15:24] Speaker 02:
In fact, Apple has not cited a single case where this court has reversed the board based on its application of Phillips.

[00:15:32] Speaker 02:
So that's tellings.

[00:15:33] Speaker 02:
I mean, it's kind of just threshold.

[00:15:34] Speaker 02:
That's where we are.

[00:15:36] Speaker 02:
Second, if you look, and I think this is an interesting academic issue, but it's also really relevant here.

[00:15:41] Speaker 02:
If you look what Apple's arguing, the gist of their complaint isn't the broadest reasonable.

[00:15:45] Speaker 02:
They give lip service to the word reasonable, but they're really coming up with the broadest possible construction.

[00:15:51] Speaker 02:
What they do, and we point this out on pages 31 and 32 of their brief, they kind of do a word-by-word parsing of the claim language.

[00:16:01] Speaker 02:
Amount in time, predetermined so they've already talked about from other patents in a different context, within.

[00:16:07] Speaker 02:
And then they kind of piece that together from the specification.

[00:16:11] Speaker 02:
What they're lacking and what they do, which I'll address later, is they don't really look at the claim language.

[00:16:16] Speaker 02:
They kind of give short shrift of it.

[00:16:17] Speaker 02:
They look at just kind of these words without context.

[00:16:20] Speaker 02:
Now, what Apple is doing is rejected by the patent off itself.

[00:16:24] Speaker 02:
I know the MPEP is not dispositive authority.

[00:16:28] Speaker 02:
But it's still telling.

[00:16:29] Speaker 02:
The MPEP in section 2111 says BRI does, quote, does not mean broadest possible interpretation, then goes to acknowledge that they typically look at claims, spec, or near meeting to oppose it up.

[00:16:42] Speaker 02:
Microsoft BT Proxycom, which is cited in the briefs, 789 Fed 3rd at 1298,

[00:16:49] Speaker 02:
notes that IPR claim construction must not be, quote, unreasonable under general claim construction principles, and goes on to acknowledge, again, spec, prosecution history, ordinary meaning.

[00:17:01] Speaker 02:
Chief Judge Michel, in a Quasso amicus after he had retired, and I'm not saying this would be necessarily responsive, he gave a very enlightened address to this issue very much.

[00:17:14] Speaker 02:
And he said, in theory, and he kind of

[00:17:16] Speaker 02:
established the cases, in theory, the Phillips standard for claim construction should seldom depart from the BRI standard, and then goes on to discuss a narrow exception, which would be disclaimer, either disclaimer in the spec or prosecution history.

[00:17:30] Speaker 02:
So I kind of challenge their initial assumption that even if the board did apply Phillips, that it would really deviate.

[00:17:37] Speaker 02:
Now, they did note

[00:17:38] Speaker 02:
This one case, PPC 1.

[00:17:41] Speaker 02:
And when I first read it, I thought I had heard that case before.

[00:17:44] Speaker 02:
PPC 1 is 815-734.

[00:17:49] Speaker 02:
In that case, the court, a panel of Moore, O'Malley, and Wallach, did note a situation where BRI would result in a different instance than Phillips.

[00:18:01] Speaker 02:
In that one, the BRI, they looked at the claims and spec, which was a broader interpretation.

[00:18:07] Speaker 02:
Then there was also this interpretation that they speculated could also exist.

[00:18:11] Speaker 02:
We took the claims and spec in a dictionary, and that would make it narrower.

[00:18:16] Speaker 02:
But they found that both of those were not in conflict with the spec and the claims.

[00:18:20] Speaker 02:
So then they said, okay, we're going to choose this broader one.

[00:18:24] Speaker 02:
similar to the canon of construction for preserving validity, which I know is not always in favor, but kind of when you have two co-equal interpretations, you go for the problem.

[00:18:34] Speaker 02:
Can I ask you a question?

[00:18:34] Speaker 03:
Sure, yeah.

[00:18:37] Speaker 03:
I don't know if you're prepared or thought about this,

[00:18:41] Speaker 03:
Do you have any thoughts on what makes this method of delivering information patent eligible under section 101?

[00:18:49] Speaker 02:
I have not considered that, Your Honor.

[00:18:50] Speaker 02:
I was brought into this case.

[00:18:52] Speaker 03:
We're going to shut this colloquy down.

[00:18:54] Speaker 02:
Yeah, yeah.

[00:18:55] Speaker 02:
I'm sorry.

[00:18:55] Speaker 05:
Can I follow up on that, though?

[00:18:58] Speaker 02:
Sure.

[00:18:58] Speaker 05:
There's a district court proceeding, right?

[00:19:00] Speaker 05:
There is.

[00:19:02] Speaker 05:
And it stayed?

[00:19:03] Speaker 02:
It is stayed.

[00:19:04] Speaker 02:
I am not counseled with that.

[00:19:05] Speaker 02:
I'm only counseled at this level.

[00:19:07] Speaker 05:
Is there a 101 motion yet in that case?

[00:19:09] Speaker 02:
I believe from reading what's in the record, there is a 101 motion.

[00:19:12] Speaker 02:
So that is true.

[00:19:13] Speaker 02:
I have not looked at that issue at all, Your Honors.

[00:19:16] Speaker 02:
I apologize.

[00:19:20] Speaker 05:
I suspect somebody's going to be looking at that issue.

[00:19:22] Speaker 02:
It wouldn't surprise me, Your Honor.

[00:19:24] Speaker 02:
But I've only really studied what's before me now as appellate counsel.

[00:19:31] Speaker 02:
The other issue, again, in PPC 1, the main thing to take away from that is it found that the reasonable construction was something consistent with the claims and the spec.

[00:19:43] Speaker 05:
Here, what- I think we understand our case law and the difference between BRRI and Phillips.

[00:19:48] Speaker 05:
What you need to convince us is that your specification supports the board's construction read with these claim language, because I do see some wiggle room.

[00:19:57] Speaker 05:
in just the language of the claims themselves for Apple's broader interpretation, what you have to convince me is, based on the specification, that's not... I can address that, Your Honor.

[00:20:08] Speaker 02:
Thank you for pointing me in that direction.

[00:20:12] Speaker 02:
That was one of the points I was going to tend to cover.

[00:20:15] Speaker 02:
The specification...

[00:20:21] Speaker 02:
Examples that Apple hangs their hat on is the two examples, the restaurant and the department store example.

[00:20:27] Speaker 02:
And if you look at that section, which is column 1, 6061, there's very precise usage of the predetermined amount of time being linked to the one hour.

[00:20:39] Speaker 02:
Then, immediately after that, it says, in what the board has called the additional feature, the manager can also specify days and times which the actions are applicable.

[00:20:51] Speaker 02:
So what Apple's done is said, OK, well, that must be something that applies the pre-determined amount of time.

[00:20:57] Speaker 02:
But as we've noted in our briefs, and I think as the board noted,

[00:21:01] Speaker 02:
Where the actions is applicable is in a different step than where the predetermined amount of time is used.

[00:21:08] Speaker 02:
The predetermined amount of time is used in the retrieving step and the predicting step.

[00:21:12] Speaker 02:
So that is clearly something, it's a disclosed and unclaimed embodiment.

[00:21:16] Speaker 02:
And Apple makes

[00:21:18] Speaker 02:
They make it sound like a horrible, horrible as they call it the Bigfoot argument.

[00:21:23] Speaker 02:
They say, well, there must be something wrong because it's never claimed and not described.

[00:21:27] Speaker 02:
But Your Honor, I think you all know that happens all the time.

[00:21:31] Speaker 02:
I mean, I started my career as a patent prosecutor.

[00:21:33] Speaker 02:
I wish I had such precision that everything that I claimed has a one-to-one correspondence.

[00:21:38] Speaker 02:
There's nothing extra.

[00:21:39] Speaker 02:
You always have extra disclosures in your spec.

[00:21:41] Speaker 02:
So that's just something that was there.

[00:21:42] Speaker 02:
There's nothing sinister about it.

[00:21:44] Speaker 02:
And in fact, I think if the court were to examine other patents, it's very common.

[00:21:50] Speaker 02:
So I think that's the only way they could get that.

[00:21:53] Speaker 02:
I think if you also look at their analysis, they really don't look at the claims.

[00:21:57] Speaker 02:
The claims really lock it in.

[00:21:59] Speaker 02:
If you look at the claim language, the predicting step is locked in

[00:22:03] Speaker 02:
to the time period.

[00:22:06] Speaker 02:
Half the time period has to start at the predicting step.

[00:22:10] Speaker 02:
That's just the way the language is written.

[00:22:12] Speaker 02:
That relates to the other issue that Council was raising about the so-called boards changing its construction from the start to the end of its decision.

[00:22:22] Speaker 02:
It makes it sound like there is some rogue board envision applying

[00:22:25] Speaker 02:
BRI and Philips, then it goes in and adds in something that starts changing at midstream.

[00:22:31] Speaker 02:
That's not what happened.

[00:22:32] Speaker 02:
And I can walk the court through it.

[00:22:33] Speaker 02:
It's in our briefs.

[00:22:34] Speaker 02:
I don't want to be too repetitive.

[00:22:36] Speaker 02:
But first of all, let me address the unchanging requirement.

[00:22:40] Speaker 02:
As we noted, and this is on page, I believe, 30 of our red brief, that

[00:22:48] Speaker 02:
reference to unchanging was merely showing that the phrase in the retrieving step is the same thing that you're pulling, the same amount of information you're pulling from the predicting step.

[00:23:01] Speaker 02:
It was saying on an antecedent basis, it's saying that's an unchanging amount, it's the same thing.

[00:23:05] Speaker 02:
It wasn't saying that predetermined amount is unchanging.

[00:23:08] Speaker 02:
And I think it's very clear.

[00:23:09] Speaker 02:
I don't want to go down to the details, but that's one first point to notice.

[00:23:13] Speaker 02:
Second point about this dynamic being something that was added, again, that's like a red herring.

[00:23:20] Speaker 02:
I'm kind of a mechanical guy, so I see everything mechanical.

[00:23:25] Speaker 02:
What the board was trying to say is Giles has kind of a start time and end time, so 1 o'clock and 2 o'clock.

[00:23:36] Speaker 02:
You have the predicting, you don't know when the predicting is gonna start with these fixed start and end times.

[00:23:41] Speaker 02:
So you can go along and the predicting come along and it can start at maybe one o'clock, okay, then you'd have one hour.

[00:23:46] Speaker 02:
OK, let's try it again.

[00:23:47] Speaker 02:
OK, now I'm going to start predicting at 1.30.

[00:23:49] Speaker 02:
Then you would only have half an hour left.

[00:23:52] Speaker 02:
That's not a predetermined amount of time.

[00:23:54] Speaker 02:
Versus in the patent, the predetermined amount of time is, for example, being an hour.

[00:24:00] Speaker 02:
It's a fixed amount of time.

[00:24:01] Speaker 02:
And then as the predicting starts, it's always that one hour.

[00:24:05] Speaker 02:
So that's the only reference to dynamic versus static.

[00:24:08] Speaker 02:
It was not any way an additional requirement.

[00:24:11] Speaker 02:
It doesn't add anything more to the claim terms.

[00:24:13] Speaker 02:
It was not intended to be more than

[00:24:15] Speaker 02:
what they already did.

[00:24:18] Speaker 02:
I think the board, if anything, was just trying to point out of its way to try to explain the impact of its interpretation.

[00:24:25] Speaker 02:
Finally, let me briefly address the standard of review

[00:24:30] Speaker 02:
They beat us up a little bit saying, look, you're arguing that it's not de novo.

[00:24:36] Speaker 02:
But we acknowledge, of course, that claim constriction ultimately is a de novo issue.

[00:24:42] Speaker 02:
But here, the board did address extrinsic evidence.

[00:24:46] Speaker 02:
And some of the statements in Apple's brief really conflict with what even they're arguing today.

[00:24:50] Speaker 02:
The board found that the dictionary definition partially confirms the court's construction.

[00:24:55] Speaker 02:
They looked at the different definitions.

[00:24:57] Speaker 02:
The board did find expert testimony is not consistent with the 199 patent disclosure.

[00:25:02] Speaker 02:
That's APPX 18 and 19.

[00:25:04] Speaker 02:
The one for the dictionary is APPX 20.

[00:25:08] Speaker 02:
And Apple continues today to assert that the expert testimony is relevant.

[00:25:12] Speaker 02:
That said, blue brief 34 and 35.

[00:25:15] Speaker 02:
So it seems to us that there were factual determinations based on extrinsic evidence.

[00:25:21] Speaker 02:
It wasn't the type of factual determination saying, I find these facts.

[00:25:25] Speaker 02:
But the court did look at what the expert, the board did look at what the experts said and did look at what the dictionary definition.

[00:25:31] Speaker 02:
And Apple continues to assert that today that the expert testimony is relevant.

[00:25:35] Speaker 02:
So we think it's still justified to say that the substantial findings need to be reviewed for substantial evidence.

[00:25:40] Speaker 02:
That's all I have today, Your Honor, unless there's any other questions.

[00:25:44] Speaker 02:
OK.

[00:25:45] Speaker 02:
Thank you.

[00:25:45] Speaker 02:
Thank you.

[00:25:52] Speaker 01:
Your Honor, if I may just address a few points that counsel made in his argument.

[00:25:57] Speaker 01:
First, counsel says that Apple gives short shrift to the claim.

[00:26:00] Speaker 01:
And I think the opposite is true.

[00:26:02] Speaker 01:
If you actually look at claim one, none of these limitations that Unilock is trying to read in there, multiple runs through the prediction, dynamic, unchanging, are in there.

[00:26:10] Speaker 01:
None of that's in the claim.

[00:26:11] Speaker 01:
So the claim itself supports Apple's position.

[00:26:14] Speaker 01:
Second, I heard counsel to say that the predicting step, that the unchanging issue,

[00:26:20] Speaker 01:
is that that's just between the predicting step and the retrieving step.

[00:26:23] Speaker 01:
We don't dispute that the same period of time is used in those two steps, but that has nothing to do with the word predetermined.

[00:26:30] Speaker 01:
That's simply because the claim has an antecedent basis in it.

[00:26:33] Speaker 01:
It says a predetermined amount of time and set.

[00:26:35] Speaker 01:
So that would be the same whether it was a predetermined amount of time or any other amount of time.

[00:26:41] Speaker 01:
I also heard my counsel opposite to say that, I believe he said, Unalak is not saying that the amount of time is unchanging.

[00:26:49] Speaker 01:
If that is true, if, in fact, counsel is conceding that, he has conceded that these claims are obvious over Gillies.

[00:26:55] Speaker 01:
The sole reason the board found that Gillies did not render obvious in combination with the other reference of the issue of Charleboix, the sole reason that the board found that Gillies did not render obvious the claims was that the board found that Gillies' disclosure

[00:27:10] Speaker 01:
of predicting whether a device will be in a time period that, quote, may be in the past, present, or future.

[00:27:15] Speaker 01:
That's what Gilley said.

[00:27:16] Speaker 01:
The time period of the prediction may be in the present.

[00:27:19] Speaker 01:
The board's sole reason for rejecting that was that that time period changed if you ran the prediction more than once.

[00:27:25] Speaker 01:
And that's at appendix 45.

[00:27:26] Speaker 01:
If Uniloc is now saying that that's not the time period, it doesn't have to be unchanging.

[00:27:31] Speaker 01:
They have conceded the obviousness of the claim over Gilley's.

[00:27:34] Speaker 01:
To address Judge, Your Honor Judge Chen and Your Honor Judge Hughes, both asked about patent eligibility.

[00:27:40] Speaker 01:
I am trial counsel below.

[00:27:41] Speaker 01:
We have filed a 101 motion.

[00:27:43] Speaker 01:
It is fully briefed and awaits the court's decision if and when the stay pending this IPR is lifted.

[00:27:48] Speaker 01:
Unilock made reference to Apple's examples.

[00:27:51] Speaker 01:
They said we hang our hat on the restaurant and department store examples.

[00:27:54] Speaker 01:
It's not entirely true.

[00:27:55] Speaker 01:
There is a disclosure at column four, lines 44 to 47, appendix 65 that we also cite that says it refers explicitly to

[00:28:04] Speaker 01:
a prediction of whether a device is likely to be in any of a number of locations, quote, within a predetermined amount of time in the future.

[00:28:14] Speaker 01:
Apple submits that it's at least reasonable to read that as referring to a time that is completely in the future.

[00:28:18] Speaker 01:
Finally, in order to affirm, this court must find it is unreasonable to define an amount of time as a window or period of time.

[00:28:25] Speaker 01:
If 5 to 6 p.m.

[00:28:27] Speaker 01:
is a window or period of time or an amount of time, Apple wins.

[00:28:31] Speaker 01:
If an hour until 2 p.m.

[00:28:33] Speaker 01:
or from 2 p.m.

[00:28:34] Speaker 01:
is an amount of time, Apple wins.

[00:28:36] Speaker 01:
And with thanks for your time, Your Honor, Apple respectfully submits.

[00:28:40] Speaker 01:
Thank you.

[00:28:46] Speaker 00:
Our next case is Consumer 2.0, Inc.

[00:28:49] Speaker 00:
versus Tenden, Turner, Inc., 19-8, 1846.