[00:00:00] Speaker 01:
Mr. Wilson, whenever you're ready.

[00:00:09] Speaker 03:
Thank you, Your Honor.

[00:00:10] Speaker 03:
May it please the Court?

[00:00:12] Speaker 03:
There are two primary issues in this appeal.

[00:00:14] Speaker 03:
The first issue is claim construction, and the second issue is whether substantial evidence supports the Board's obviousness determination.

[00:00:23] Speaker 03:
Either of these issues will require reversal of the board's entire obvious determination for all claims.

[00:00:28] Speaker 03:
But I'm going to start with claim construction.

[00:00:31] Speaker 03:
The board refused to adopt appellant's construction of non-contention reserved access identifier.

[00:00:40] Speaker 03:
And I want to start first by pointing out that everyone agreed before the board and no one disputes it before this court that a non-contention reserved access identifier is a pre-allocated code.

[00:00:51] Speaker 03:
as discussed in the 320 patent.

[00:00:54] Speaker 03:
The second point I want to make is that in the 320 patent, the 320 patent uniformly distinguishes between pre-allocated codes and randomly selected codes.

[00:01:06] Speaker 03:
One way to think about that is if you were in a concert theater and you had a set of general admission seats and a set of reserved seats.

[00:01:15] Speaker 03:
The general admission seats are open.

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and whoever comes in with a general admission ticket can randomly select a seat.

[00:01:22] Speaker 03:
In the reserve section, seats are pre-assigned or pre-allocated to specific people.

[00:01:28] Speaker 03:
And so when I look at a reserve seat, I can see someone who is, I can see the seat, I can see that it's occupied and I know who occupies it because I have pre-allocated that seat to a specific person.

[00:01:43] Speaker 03:
Now, the board rejects

[00:01:45] Speaker 00:
Excuse me.

[00:01:46] Speaker 00:
This is, this is Judge Stoll.

[00:01:48] Speaker 00:
I have a question for you.

[00:01:49] Speaker 00:
Taking your analogy a little further, would you agree that what the board held essentially is that pre-allocated could be slightly different?

[00:02:00] Speaker 00:
That is that there could be pre-allocated seats that are maybe in the front section around the stage.

[00:02:07] Speaker 00:
There's still

[00:02:09] Speaker 00:
not individually pre-allocated.

[00:02:11] Speaker 00:
They're not pre-allocated to individuals, but they're pre-allocated to anybody who may be paid extra to sit right in front of the stage, but it's still first come, first served, randomly assigned.

[00:02:25] Speaker 00:
On the other hand, there are seats that are in a section further back that are not pre-allocated that way.

[00:02:32] Speaker 00:
Would that be a fair reading of what the board said?

[00:02:35] Speaker 00:
It didn't have to be pre-allocated

[00:02:38] Speaker 00:
in the sense of being pre-assigned to individual mobile stations, but rather pre-allocated in the sense of used for a particular purpose.

[00:02:51] Speaker 03:
So I think what Your Honor is addressing is the Board's characterization of songs codes as being sort of reserved for handover or reserved for initial ranging, as the Board put it.

[00:03:05] Speaker 03:
To that extent, I think, Your Honor, is correct.

[00:03:09] Speaker 03:
That's, of course, not what the 320 patent is disclosing.

[00:03:13] Speaker 03:
The 320 patent uniformly teaches that pre-allocated codes are assigned to a specific mobile station.

[00:03:22] Speaker 03:
And therefore, when I receive a pre-allocated code as a base station, when I look at someone a seat in the reserve section, I know who's sitting in that seat.

[00:03:32] Speaker 03:
By contrast, if I look at the general admissions

[00:03:35] Speaker 00:
What do you think, I just wanted to ask you, I understand your position, what do you think is the best, what do you think is the claim language that supports your more narrow interpretation of the claims, of the board's broader interpretation?

[00:03:54] Speaker 03:
I believe that the claim language is non-contention reserved access identifier and I believe that that claim language was chosen because it captures each aspect

[00:04:04] Speaker 03:
of pre-allocated codes as they're described in the specification.

[00:04:08] Speaker 03:
That was an attempt to capture those things.

[00:04:11] Speaker 00:
Is there a particular word there?

[00:04:12] Speaker 00:
Is it reserved?

[00:04:14] Speaker 00:
Identifier?

[00:04:15] Speaker 00:
Which word?

[00:04:17] Speaker 00:
I mean, or do you think it's all of them?

[00:04:20] Speaker 03:
I think it's all of them together.

[00:04:21] Speaker 03:
The idea of non-contention, people are not contending for these feats.

[00:04:26] Speaker 03:
The idea that they are reserved, they're set aside, not available for random selection.

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and their access identifiers.

[00:04:33] Speaker 03:
They identify a mobile device to a base station.

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That's what those words were meant to capture.

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And I believe that's what they do capture, especially you've read in the view of the specification.

[00:04:46] Speaker 04:
The board rejected that.

[00:04:50] Speaker 04:
This is Judge Wallach.

[00:04:56] Speaker 04:
On page 30 of the grain brief, the PTO

[00:05:01] Speaker 04:
asserts that regarding YLAN's argument that the specification describes pre-allocated codes and randomly selected codes as mutually exclusive alternatives based on the use of OR as well as language was never raised before the PTAB and is waived.

[00:05:22] Speaker 04:
Where'd you raise that argument before the PTAB?

[00:05:26] Speaker 03:
So, Your Honor, we addressed that in our, you referred to the

[00:05:31] Speaker 03:
the gray brief, I think.

[00:05:34] Speaker 03:
But we raised, we addressed that issue, and I will point you to specifically where we point this out.

[00:05:47] Speaker 04:
Now remember, I'm not asking about the gray brief.

[00:05:49] Speaker 04:
I'm asking about the green brief and we're in the record.

[00:05:53] Speaker 03:
Right, right.

[00:05:55] Speaker 03:
Yeah.

[00:05:56] Speaker 03:
So the passage that we pointed the court to, and I'm actually

[00:06:01] Speaker 03:
referencing the Gray brief at page 10, but it cites to the appendix page 325.

[00:06:11] Speaker 03:
And it also cites some expert testimony at appendix page 325.

[00:06:18] Speaker 03:
I'll take a look.

[00:06:21] Speaker 03:
But I can go there and specifically reference it if your honor would like.

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But that's where it is.

[00:06:27] Speaker 03:
We use the exact same example.

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And we said the specification distinguishes so-called open codes from the claims reserved or pre-allocated codes.

[00:06:36] Speaker 03:
And we cite the exact same passage of the specification in column 15 that we're relying on there.

[00:06:44] Speaker 03:
Okay.

[00:06:44] Speaker 03:
So, Your Honor, and as an additional point, unless we were raising an entirely new claim construction position, the Federal Circuit case law is that you haven't waived the claim construction argument anyway.

[00:07:00] Speaker 03:
So I think that argument is without merit.

[00:07:03] Speaker 03:
But pushing on, the linchpin of the board's claim construction analysis was column 14, where it concluded that it thought it found an embodiment in which the pre-allocated codes were randomly selected.

[00:07:21] Speaker 03:
There are two problems with the board's analysis there.

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First, the petitioner conceded

[00:07:30] Speaker 03:
both parties agreed at the oral hearing that the 320 patent contains no such disclosure of randomly selecting a pre-allocated code.

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So the board departed from the party's agreement and went its own way with its construction and its interpretation of claims of column 14, which is improper.

[00:07:50] Speaker 03:
That's just legally improper.

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The board is not permitted to go its own way on invalidity.

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The second problem with the

[00:07:59] Speaker 03:
board's interpretation of column 14 is it's just wrong.

[00:08:03] Speaker 03:
Column 14 is describing a situation in which the mobile station has a set of pre-allocated codes that it has run through, but none of them apply to its situation.

[00:08:17] Speaker 03:
Think of it like I've got a reserved seat in the pit in front of the orchestra, but I want to sit in the balcony.

[00:08:23] Speaker 03:
And I don't have a reserved seat in the balcony.

[00:08:26] Speaker 03:
So I've got to

[00:08:29] Speaker 03:
go get a general admission ticket and randomly pick a seat up in the balcony if I want to sit in the balcony.

[00:08:33] Speaker 03:
That's what's being described in column 14.

[00:08:36] Speaker 03:
You don't have a pre-allocated code that fits your situation, so you have to go back to random selection of codes just like everybody else.

[00:08:45] Speaker 00:
Council?

[00:08:45] Speaker 03:
It's very straight.

[00:08:47] Speaker 00:
Mr. Stowell, is this where you're pointing out that the board erred in its opinion

[00:08:55] Speaker 00:
at page 13 where it inserted the bracket pre-allocated before the word code in column 14 of the patent.

[00:09:07] Speaker 03:
That's correct, your honor.

[00:09:09] Speaker 01:
And that went to the board's argument that they'd excluded a preferred, that your construction would exclude a preferred embodiment?

[00:09:19] Speaker 03:
That's correct, your honor.

[00:09:20] Speaker 03:
In fact, they relied on it over and over and over again.

[00:09:24] Speaker 03:
in their final decision to reject our argument?

[00:09:28] Speaker 01:
Well, that may be sort of correct, but this is Judge Proust, I'm sorry.

[00:09:32] Speaker 01:
But as I think is pointed out in green in the Patent Office's brief, the board kind of had an alternative conclusion, right, to support its claim construction decision.

[00:09:43] Speaker 01:
And that was its reliance on this permissive language in the specification.

[00:09:48] Speaker 01:
So even if we don't rest on the board's argument that you've cited with regard to column 14,

[00:09:54] Speaker 01:
There's still, I hate to call it an alternative basis, but the board, there's still an analysis with regard to the specification and the permissive language that led the board to conclude as it did in the claim construction.

[00:10:08] Speaker 01:
So isn't that sufficient to affirm without getting involved in your column 14 debate?

[00:10:16] Speaker 03:
It would be if it were true, Your Honor.

[00:10:18] Speaker 03:
The problem is it's not true.

[00:10:20] Speaker 03:
The specification... What's not true?

[00:10:23] Speaker 03:
It is not true that the specification uses permissive language with respect to whether or not pre-allocated codes can be randomly selected.

[00:10:33] Speaker 03:
We cited numerous examples in the brief of a clear distinction between the two.

[00:10:38] Speaker 03:
There are numerous other examples.

[00:10:41] Speaker 03:
But the point is, the director, neither the director nor the board, pointed to a specific example.

[00:10:48] Speaker 03:
The most contentious example, the best example that the board can muster is the bottom column 12 where it says the reserve codes are not to be randomly selected.

[00:10:59] Speaker 03:
And the board says, the board crossed that quote in its opinion and said, well, but look at this can presume earlier in the passage.

[00:11:07] Speaker 03:
What that passage is actually describing is a situation in which we're telling mobile stations which section is the general admission section and which section is the reserve section.

[00:11:18] Speaker 03:
And what it says is, all we have to do is tell a mobile station, here's the general admission section.

[00:11:24] Speaker 03:
Here's what you can randomly select from.

[00:11:27] Speaker 03:
And you can assume that whatever's not in this section is pre-allocated.

[00:11:31] Speaker 03:
It's reserved.

[00:11:33] Speaker 03:
And so pre-allocated codes are not to be randomly selected.

[00:11:37] Speaker 03:
You don't go randomly choosing a seat in the reserve section.

[00:11:40] Speaker 03:
That's what that passage says.

[00:11:42] Speaker 03:
The alternative is we can explicitly tell the mobile station.

[00:11:46] Speaker 03:
Here's the general admission section.

[00:11:48] Speaker 03:
Here's the randomly selected section.

[00:11:50] Speaker 03:
And here's the reserved section.

[00:11:53] Speaker 03:
It's reserved.

[00:11:54] Speaker 03:
Don't go randomly selecting in there.

[00:11:56] Speaker 03:
So the only permissiveness there is either we let you assume which section you're not supposed to be randomly selecting in, or we can explicitly tell you what's reserved for pre-allocation.

[00:12:09] Speaker 03:
That is not permissive with respect to randomly selecting a pre-allocated code.

[00:12:14] Speaker 03:
And I'll reserve the rest of my time if there are no further questions.

[00:12:18] Speaker 04:
Well, actually, I have a further.

[00:12:19] Speaker 04:
This is Judge Wallach.

[00:12:21] Speaker 03:
OK.

[00:12:21] Speaker 04:
I'm looking at Appendix 325.

[00:12:25] Speaker 04:
And I don't see the answer to my question about mutually exclusive alternatives based on the use of or as well as.

[00:12:34] Speaker 04:
Where was that argument raised?

[00:12:39] Speaker 03:
So, Your Honor, I'm looking at 325.

[00:12:44] Speaker 03:
And we say the specification distinguishes so-called open codes from the claimed reserved or pre-allocated codes.

[00:12:57] Speaker 03:
In contrast to the claimed codes, the specification explains that an open code refers to a code that will not be assigned to any particular subscriber station.

[00:13:04] Speaker 03:
It can be randomly selected by subscriber stations for use in a random access channel message.

[00:13:10] Speaker 03:
So what it's saying there in that passage with citation to the exact same passage, actually two of the same passages that we rely on, column seven and column 15, it's saying the patent is drawing a clear distinction between pre-allocated codes and randomly selected codes.

[00:13:25] Speaker 03:
And that's the same argument we're making now.

[00:13:32] Speaker 04:
Well, thanks.

[00:13:34] Speaker 03:
Thank you, Your Honor.

[00:13:36] Speaker 03:
And again, even if it were not the same argument,

[00:13:39] Speaker 03:
We haven't changed our claim construction position, and therefore, it's not waived.

[00:13:45] Speaker 03:
Thank you, Your Honors.

[00:13:46] Speaker 03:
I'll reserve the rest of my time.

[00:13:53] Speaker 01:
Okay.

[00:13:55] Speaker 01:
We serve the remainder of your time for rebuttal, and let's hear from Mr. Resilla.

[00:14:00] Speaker 02:
Thank you, Your Honor.

[00:14:03] Speaker 02:
The broad language, the broad claim language and permissive disclosure of the 320 patent do not support Weiland's position here.

[00:14:11] Speaker 02:
And I think we agree with your honor Judge Prost that you could affirm the board's claim construction on one of two alternatives.

[00:14:21] Speaker 02:
The first being that it's improper to import a negative limitation into the claim language and that negative limitation here is whether or not the reserve code is randomly selected by

[00:14:32] Speaker 02:
the mobile station, and we pointed out in, I think, great detail in the green brief all of the language throughout the specification.

[00:14:43] Speaker 02:
I think we did that in the footnotes 13 through 15, including those broad permissive statements in the code pre-allocation and subscriber station sections of the brief that would

[00:14:58] Speaker 02:
prevent this court and the board from importing such a negative limitation into the claims because there's no clear disavowal, there's no clear definition there.

[00:15:09] Speaker 02:
I think moving to column 12, I think that's what Council for Weiland discussed a little bit and they pointed to that as further evidence that the spec teaches there is

[00:15:28] Speaker 02:
the claim language requires the importation of the non-random selection by the mobile station into the claim.

[00:15:37] Speaker 02:
And I think when you look at the actual language, it supports the board here, because in that language, it says that the code assignment module can presume that those codes absent from the usage type map represent codes reserved for pre-allocation.

[00:15:53] Speaker 02:
And then here's where the fight is.

[00:15:57] Speaker 02:
what does that next phrase mean?

[00:15:59] Speaker 02:
And it says, and that the reserve codes are not to be randomly selected.

[00:16:03] Speaker 02:
And I think the board was correct here.

[00:16:05] Speaker 02:
And I think even the district court, when they looked at this in the companion case, found that that language, that can presume language from the first part of that sentence needs to be imported and read into that phrase so that the assignment module is presuming, can presume both that the usage type map

[00:16:26] Speaker 02:
represent codes reserved for pre-allocation and can presume that the reserve codes are not to be randomly selected.

[00:16:32] Speaker 02:
This is not a definition.

[00:16:33] Speaker 02:
This is not something that rises to the level to allow the court or the board to import that limitation into the claim language.

[00:16:44] Speaker 02:
And I think Your Honor was correct in recognizing that this is one of two different grounds that the board relied upon

[00:16:54] Speaker 02:
in support of its claim construction.

[00:16:57] Speaker 02:
The second one is that it would be improper to exclude the preferred embodiment that was set out in column 14.

[00:17:11] Speaker 02:
And to, I guess, extend the analogy that Council for Wylan provided in its opening argument,

[00:17:21] Speaker 02:
What the board looking at column 14 recognized that there would be a user or there would be a contact goer who would have four reserved seats, but they were not told how, which one of those four seats they had to sit in.

[00:17:38] Speaker 02:
And so they could randomly select among that group of four seats that's been reserved for them and decide where they could sit in each one of those four seats.

[00:17:45] Speaker 02:
And that's what the board said.

[00:17:47] Speaker 02:
that the language at the bottom of Column 14 really means.

[00:17:53] Speaker 02:
And that one of Ordinary School in the Art, looking at that, would read the embodiment to allow the mobile station when it has a set of codes that are stored in its memory that have the proper usage type, but

[00:18:15] Speaker 02:
do not have the specific semantic or something without a semantic attached to it, then it would be able to randomly select among those codes because those codes are available codes of the desired usage type.

[00:18:34] Speaker 02:
And that's what the language in column 14 teaches how you select those codes.

[00:18:45] Speaker 02:
And so I think on either one of those theories, this court can affirm the board's claim construction.

[00:18:53] Speaker 01:
And then addressing, oh, I'm sorry.

[00:19:03] Speaker 01:
No, go ahead.

[00:19:04] Speaker 01:
I just said anything further.

[00:19:06] Speaker 01:
So you were about to do that.

[00:19:09] Speaker 02:
And I think looking at the,

[00:19:14] Speaker 02:
Appendix 325 where Judge Wallach was asking counsel for the citation for where they argued that the language was mutually exclusive.

[00:19:29] Speaker 02:
Again, that language is not there.

[00:19:31] Speaker 02:
We believe that they waived that argument and we agree with Judge Wallach that that passage does not show that they have

[00:19:41] Speaker 02:
preserved that argument, that claim construction argument.

[00:19:44] Speaker 04:
So this is Judge Wallach.

[00:19:46] Speaker 04:
You can't agree with me.

[00:19:47] Speaker 04:
I didn't say that.

[00:19:49] Speaker 04:
I just said, well, thank you.

[00:19:53] Speaker 02:
Well, my apologies, Your Honor.

[00:19:55] Speaker 02:
We agree that the court should look to that disclosure.

[00:20:01] Speaker 02:
And I believe that the court, in looking at that, would recognize that they did not preserve that claim construction argument.

[00:20:16] Speaker 01:
Anything further?

[00:20:18] Speaker 02:
And with respect to the second issue that he, that they referred to, I'm sorry, that Council for Weiland referred to in the opening statement, we believe that substantial evidence does exist for, to support the board's finding that song teaches the non-contention reserve access identifier and we would submit those arguments on the papers.

[00:20:42] Speaker 02:
Thank you.

[00:20:43] Speaker 02:
If there are no further questions, I yield my time.

[00:20:45] Speaker 01:
Thank you.

[00:20:46] Speaker 01:
Mr. Wilson, you have a few minutes remaining.

[00:20:50] Speaker 03:
Thank you, Your Honor.

[00:20:52] Speaker 03:
Just very quickly, column 14 does not describe the scenario that Council just articulated where there are four pre-allocated seats in which the attendee wants to sit.

[00:21:03] Speaker 03:
What it describes is a situation where there are four seats where the, or potentially four seats where the attendee wants to sit, but the, or where the attendee does not want to sit, the attendee wants to sit somewhere else.

[00:21:16] Speaker 03:
where it doesn't have a seat.

[00:21:19] Speaker 03:
So it has to go out and randomly select.

[00:21:21] Speaker 03:
That is very clearly articulated in our briefs.

[00:21:23] Speaker 03:
But to the point about the permissiveness of the specification, at the top of column three, lines one through five, the specification says the use of pre-allocated codes avoids the collision probability associated with random subscribed or selected access codes.

[00:21:40] Speaker 03:
That's not permissive in any way.

[00:21:43] Speaker 03:
There's nothing permissive about it.

[00:21:46] Speaker 03:
Column 7, lines 19 through 24, describes two different types of code, a distinct second portion of codes as open codes, where an open code refers to a code that can be randomly selected.

[00:22:00] Speaker 03:
That's not permissive.

[00:22:03] Speaker 03:
Thank you.

[00:22:04] Speaker 03:
Finish your thought.

[00:22:06] Speaker 03:
So there is passage after passage in 320 specification that describes a clear delineation between pre-allocated codes

[00:22:15] Speaker 03:
and randomly selected codes, they do not point to any ambiguity, any permissiveness in any of those passages.

[00:22:25] Speaker 03:
So we believe... Thank you, Your Honor.

[00:22:29] Speaker 01:
Thank you.

[00:22:29] Speaker 01:
We thank both sides in the cases submitted.