[00:00:00] Speaker 01: 20-1439 Aegis Software Development LLC versus Google LLC. [00:00:06] Speaker 01: Again, Mr. Rubino. [00:00:11] Speaker 04: Good morning, Your Honors. [00:00:11] Speaker 04: Vincent Rubino for Aegis. [00:00:14] Speaker 04: May it please the court? [00:00:17] Speaker 04: Go ahead. [00:00:21] Speaker 04: Your Honors, this next appeal is regarding another final written decision from the Patent Office [00:00:31] Speaker 04: It involves a finding of obviousness that is reviewed for substantial evidence. [00:00:39] Speaker 04: More specifically, one of the main issues on appeal is with regard to the combination of two references, Fumarolo, along with the reference Shiha. [00:01:00] Speaker 04: and whether those two references together disclose all the limitations of the claims. [00:01:09] Speaker 04: Essentially, the arguments on appeal boil down to whether these references together teach sending location information from a first device to second devices, second devices back to first devices. [00:01:24] Speaker 04: There are a whole host of other limitations for these claims. [00:01:28] Speaker 04: But that is really the main issue on appeal is whether the limitation that requires a first device to send this location information is disclosed in the combination of these two references. [00:01:39] Speaker 04: Now, the claims relate to potentially mobile devices. [00:01:43] Speaker 04: They can read on things that are not mobile, but at least the independent claims can. [00:01:48] Speaker 04: But you have to have a device that is capable [00:01:52] Speaker 04: sending and receiving location information to other devices so that you can see it on a display and interact with it. [00:01:59] Speaker 04: Now, sending and receiving location information is not taught by the primary reference here, the Pumaromo reference. [00:02:08] Speaker 04: That reference is essentially a dispatcher terminal, which one of the skill in the art reading that reference and understanding that reference knows what a dispatcher terminal is. [00:02:19] Speaker 04: And generally speaking, they're a fairly large machine. [00:02:22] Speaker 04: And in the context that Fumarola would describe, that you could have a foot pedal and a microphone and all sorts of large apparatus. [00:02:29] Speaker 04: Generally speaking, they are in a fixed location. [00:02:33] Speaker 04: And Fumarola describes a fixed location as one of the embodied. [00:02:39] Speaker 04: A petitioner attempts to combine a reference sheehaw with that disclosure to get [00:02:48] Speaker 04: sending location information. [00:02:49] Speaker 04: Why do they do that? [00:02:50] Speaker 03: Because in the context... But what about the remote... I'm sorry, but what about the remote terminal? [00:02:54] Speaker 03: You're ignoring the remote terminal 201. [00:02:57] Speaker 03: I mean, that is a display-based terminal, correct? [00:03:01] Speaker 04: Your Honor, I was not ignoring that. [00:03:04] Speaker 04: Apologies. [00:03:05] Speaker 04: I was trying to get there. [00:03:07] Speaker 04: But in the context of the remote terminal, if you look at what the board's finding was, the board found that [00:03:14] Speaker 04: it wasn't relying on the remote terminal of a separate embodiment. [00:03:17] Speaker 04: Google says it wasn't a separate embodiment. [00:03:19] Speaker 04: We dispute that, but even if you were to take that as a single embodiment with, you know, common components, the critical feature here is why do you get to combine that remote terminal with sharing location in two directions? [00:03:32] Speaker 04: That remote terminal still does not have location sharing. [00:03:36] Speaker 04: And why is that critical? [00:03:37] Speaker 04: Well, there is a system in Fumarolo that describes location sharing, the AVL system. [00:03:43] Speaker 04: The AVL system [00:03:45] Speaker 04: is a known system, it's a known protocol, and it receives information from vehicles. [00:03:50] Speaker 04: And it receives location information. [00:03:52] Speaker 04: It's not two-way, it's not bi-directional. [00:03:55] Speaker 04: And so how do we combine that with SHIHA? [00:03:57] Speaker 04: Well, if we were to combine that with SHIHA, which admittedly does disclose sharing location information, how would we put that into the Fumarolo reference? [00:04:07] Speaker 04: How do we get to the combination? [00:04:08] Speaker 04: Well, the only way to do that, there are two ways really to do that. [00:04:11] Speaker 04: probably unacceptable, and it's not really what Petitioner is going with, which would be you'd have both types of location information. [00:04:18] Speaker 04: That doesn't make a lot of sense. [00:04:19] Speaker 04: You would have SheHas location sharing and the AVL system. [00:04:23] Speaker 04: So the only thing that makes sense would be to swap the AVL system with the location sharing of SheHas, because that's the hook they get to in their effort to integrate. [00:04:33] Speaker 03: But doesn't the AVL system in Fumarilla, isn't it indirectly integrated with the remote terminal? [00:04:41] Speaker 04: Yes, Your Honor, and that's the issue, the indirect connection. [00:04:45] Speaker 03: What is the significance of the difference between indirect coupling versus the direct coupling in a fixed terminal? [00:04:55] Speaker 04: That is exactly the point, and that is exactly the critical difference, which is that if you look at the figures that were excerpted by the board, the AVL system, which is the hook for location sharing, [00:05:05] Speaker 04: is not directly connected to the remote terminal. [00:05:07] Speaker 03: Right. [00:05:08] Speaker 03: My question is, what's the significance of that? [00:05:10] Speaker 03: Because you say that repeatedly in your brief, but you never really clarify why that matters. [00:05:16] Speaker 04: Your Honor, if you are going to get location information from that remote terminal through that AVL system, you're only going to be getting the location of the fixed unit. [00:05:27] Speaker 04: Because the way that Fumarola describes the remote terminal is, with some components remote, [00:05:33] Speaker 04: still talking to a home base, there's disclosure of this dummy terminal X window session, which would mean that the location would still be the location of the fixed terminal. [00:05:44] Speaker 04: There's a fixed terminal running all of the components, running the ADL system. [00:05:48] Speaker 04: If we swap location sharing for that ADL system, we are still getting the location of the fixed terminal, not of the remote van driving around with the remote component. [00:06:01] Speaker 04: It just doesn't get you the two-way location sharing of that unit where you have your display. [00:06:06] Speaker 04: And also, it wouldn't make sense. [00:06:07] Speaker 03: What about column five? [00:06:10] Speaker 03: I think it's around 13 to 21, and it talks about the remote terminal receiving communication unit location updates from the AVL system. [00:06:20] Speaker 04: Yes, Your Honor. [00:06:21] Speaker 04: So that is still receiving the location updates from the AVL system. [00:06:25] Speaker 04: But if we are turning the AVL system into a two-way bidirectional system, [00:06:30] Speaker 04: That system is still only connected in the box in the figure to the base unit. [00:06:37] Speaker 04: There's a fixed unit. [00:06:38] Speaker 04: It is not connected to the remote unit. [00:06:40] Speaker 04: There may be some information sharing that goes over a separate wireless link to the remote terminal, but there is nothing in the record that would explain why you would take an ADL system and then make it two directional and then add yet another component which would [00:06:57] Speaker 04: get location of another remote unit, send that back to the AVL unit. [00:07:01] Speaker 04: And that's the disconnect, is that the AVL unit isn't connected directly. [00:07:07] Speaker 04: It may have a wireless communication to it, but it's not directly connected to that remote terminal. [00:07:13] Speaker 04: And therefore, there's no motivation to get the location of that remote terminal. [00:07:16] Speaker 04: But we're still stuck with location information of a fixed terminal. [00:07:22] Speaker 03: And maybe I'm just sick here, but if [00:07:25] Speaker 03: a remote terminal can receive location information, why couldn't one of Skill in the Art modify the remote terminal to send location information? [00:07:38] Speaker 04: Your Honor, the location, the information being received by that remote terminal in the context of Fumarolo is in the context of primarily the dummy terminal embodiment, which is that it's going to be receiving [00:07:55] Speaker 04: screen information, and then the processing and the computations are all going to be done remotely at the fixed location. [00:08:03] Speaker 04: Additionally, there's just nothing in that remote terminal that would be able to generate your location information. [00:08:10] Speaker 04: If all of the hardware itself, other than the GUI, is located back at the base terminal, where is the hook to get the location information? [00:08:19] Speaker 04: We'd have to add a GPS or something. [00:08:21] Speaker 04: There's just no disclosure of that type of integration [00:08:25] Speaker 04: into the remote terminal. [00:08:28] Speaker 03: And if we look back at the AVL systems... Does Figure 2 show that the remote terminal has a processor component? [00:08:37] Speaker 04: Figure 2 does show it has a processor component as a dummy terminal would be. [00:08:41] Speaker 04: It would need user input device, transceiver, some memory, and a GUI. [00:08:46] Speaker 04: But it still discloses that [00:08:56] Speaker 04: that it has an X window session linked back to a base terminal. [00:09:04] Speaker 04: And if it was merely the case that the AVL system was in communication with the processor of the remote terminal, the figure would be drawn with the AVL system hooked into the remote terminal. [00:09:19] Speaker 04: And that's just not taught by the reference. [00:09:21] Speaker 04: There is disclosure of the wireless embodiment. [00:09:23] Speaker 04: but it is not taught by the reference that the AVL system is present in the remote terminal. [00:09:34] Speaker 04: Okay. [00:09:40] Speaker 04: If I may proceed on to one other point from our brief, if the panel does not have any additional questions on that limitation. [00:09:54] Speaker 04: Go ahead. [00:09:59] Speaker 04: So for the remainder of the petition, there is one additional argument that we raised, which is that limitation 1.7, that there's just no argument by the board about how you would get to that obviousness determination other than conclusory statements about a design choice [00:10:24] Speaker 04: And that is a very simple question of law, which is, is it possible to have a design choice for something that is functional? [00:10:34] Speaker 04: So design choice is generally limited to things like, could I have a blue or a yellow or a red? [00:10:42] Speaker 04: Those are the choices. [00:10:43] Speaker 04: Well, picking blue would be a design choice. [00:10:46] Speaker 03: Did you actually argue below that there's no motivation to combine with CHIHA? [00:10:54] Speaker 04: Your Honor, we did argue below at great length about the disclosure of SHIHA with regard to, at least in the context of the second device and the first device, and the limitation following this limitation, which is based on the user input adding the user specified symbol. [00:11:15] Speaker 04: There is no user specified symbol in the context of those two references. [00:11:19] Speaker 04: Did we need to say no user specified symbol and then cite to in the breakdown that the board had of 1.7 versus 1.8? [00:11:27] Speaker 04: I don't think the forfeiture rules are that strict. [00:11:32] Speaker 04: The argument was made that the two references should not be combined. [00:11:36] Speaker 04: And that was on page, I believe it was on page 12 of our responsive brief, of our, sorry, of our pattern of response, which I can get the record cite for during my rebuttal time. [00:11:49] Speaker 04: But yes, we did make the argument that the user-specified symbol was not taught in the combination, at least in the context of the next limitation. [00:12:01] Speaker 04: And that was clearly an issue in the response. [00:12:05] Speaker 04: And the board still had the duty of making that determination for petitioner and showing that motivation to make those changes in the context of the two references. [00:12:16] Speaker 04: And there's just not, there's nothing in the record [00:12:19] Speaker 04: to support that, to support the combination for a design choice. [00:12:24] Speaker 04: And the reason why, if I may just continue for 15 more seconds. [00:12:31] Speaker 04: Go ahead. [00:12:33] Speaker 04: The reason why that's important is because this limitation is about choosing a symbol, selecting a symbol. [00:12:40] Speaker 04: The function of a choice is not a design choice. [00:12:45] Speaker 04: That is functional, that is part of the program, [00:12:48] Speaker 04: That is not whether to make it pink, red, or blue, or whether to make the symbol a car, a vehicle, or a fire hydrant, or a fire station. [00:12:57] Speaker 04: That is to have the actual functionality in the claims. [00:13:01] Speaker 04: There's just nothing in the case law for design choice that would support the decision to add new functionality as a design choice. [00:13:09] Speaker 04: And there's nothing in the expert declaration to explain why that would happen either. [00:13:13] Speaker 04: Nothing in the petition. [00:13:14] Speaker 04: Nothing more than the bare conclusion and the final written decision. [00:13:17] Speaker 04: And for that reason, Your Honors, [00:13:19] Speaker 04: Agents would submit that there is no substantial evidence of that limitation. [00:13:24] Speaker 01: Okay. [00:13:25] Speaker 01: Thank you, Mr. Rubino. [00:13:26] Speaker 01: Mr. Garcia. [00:13:31] Speaker 00: Thank you, and may it please the court. [00:13:34] Speaker 00: In this appeal, Your Honors, the board's fundamental finding is that both of the terminals in Fumarolo perform the same functions and share every relevant component that's on pages 29 and 30 [00:13:49] Speaker 00: That finding is supported by the reference's figures, which show that they share every relevant component and the explicit statements in the specification, columns five and six, as well as expert testimony, showing that they, in fact, perform the same communication and mapping functions. [00:14:07] Speaker 00: The contrary argument has never had any answer for the actual figures themselves for the statements in column five, and as the board held, [00:14:19] Speaker 00: The only distinction is that the 201 terminal gathers the AVL information through wirelessly instead of with a wire. [00:14:30] Speaker 00: So that is supported by fundamental substantial evidence and essentially all of Aegis's arguments fall with that finding. [00:14:40] Speaker 00: Today Aegis addressed primarily to other arguments that it had abandoned in the reply brief [00:14:49] Speaker 00: I'm happy to address any questions about those issues. [00:14:54] Speaker 02: I don't know that a failure to address arguments in a reply brief necessarily means they've abandoned them. [00:15:04] Speaker 02: So why don't you address the merits of the other arguments? [00:15:09] Speaker 00: Sure. [00:15:10] Speaker 00: And I'll take them in reverse order, Your Honor. [00:15:12] Speaker 00: So the limitation 1.7 where agencies counsel ended, that is [00:15:17] Speaker 00: unequivocally waived, they did not address limitation 1.7 below for Google's arguments on that limitation. [00:15:28] Speaker 00: As for the motivation to combine Fumarolo with Shiha, the fundamental point on that is essentially where I started. [00:15:39] Speaker 00: The premise of their argument is that there's some vast distinction between the [00:15:45] Speaker 00: Display-based terminal 101 and display-based terminal 201. [00:15:49] Speaker 00: And that's simply contrary to the explicit statements in the reference. [00:15:54] Speaker 00: And when you have the remote terminal that is capable of performing the mapping and communication functions and is mobile, that is just further support for the board's finding [00:16:11] Speaker 00: on pages 65 to 68 that there would be a motivation to combine Fumarolo and Sheeha to achieve the two-way location sharing. [00:16:22] Speaker 03: Can you answer the question that I asked Mr. Rubino, Mrs. Judge O'Malley? [00:16:27] Speaker 03: Is there a significance to the direct coupling versus indirect coupling? [00:16:36] Speaker 00: No, Your Honor. [00:16:37] Speaker 00: That is entirely just about the manner [00:16:40] Speaker 00: in which the terminal gets the AVL location, whether it's with a wire or wirelessly. [00:16:48] Speaker 00: That's the only distinction and has no functional impact. [00:16:51] Speaker 00: And that's what the board held and what we believe is not just supported, it's unambiguous that the terminal itself in both figures one and figures two perform every function in exactly the same way. [00:17:08] Speaker 03: So one of skill in the art would not have understood, for instance, that GUI or GUI, as Mr. Rubino calls it, to perform certain functions in the fixed terminal and different functions in the remote terminal? [00:17:23] Speaker 00: That's correct, Your Honor, and I think that's clear both from figures one and figure two, which both refer to GUI 119. [00:17:31] Speaker 00: There's no indication there's a difference. [00:17:34] Speaker 00: And then when we turn to column five, column five makes clear [00:17:38] Speaker 00: that in figures three and four, which is illustrating the maps, the interactive maps, that they apply to both terminal 101 and 201. [00:17:49] Speaker 00: That's lines 23 and 24 in column five. [00:17:55] Speaker 00: And there's simply no basis for the suggestion that anything that the terminals do about processing information [00:18:02] Speaker 00: displaying information and facilitating communications with the communication units is different at all. [00:18:09] Speaker 00: And again, in column five, it explicitly shows that the mapping functions are the same. [00:18:17] Speaker 00: A little bit higher up in the column, it states that the both terminals communicate with the communication units in a similar way. [00:18:24] Speaker 00: And there's simply, at the very least, there is substantial evidence for the board's finding that the only distinction [00:18:32] Speaker 00: between the two terminals is the wired versus wireless connection, and that that has no relevance in terms of the obvious analysis that Google put forth. [00:18:44] Speaker 01: OK, anything further? [00:18:52] Speaker 00: I would be happy to rest on our briefs and the argument today if the panel does not have further questions. [00:18:59] Speaker 01: Okay, hearing no further questions. [00:19:01] Speaker 01: Thank you, Mr. Garcia. [00:19:02] Speaker 01: Mr. Robino, you have a couple of minutes. [00:19:05] Speaker 04: Thank you, Your Honors. [00:19:07] Speaker 04: As indicated in my opening session, with regard to support for the limitation of user-specified symbol, there is support for discussion of that symbol. [00:19:22] Speaker 04: And as Google admits, [00:19:24] Speaker 04: It is within the context of the second device that we do have that discussion, but it is essentially the same limitation with antecedent bases in limitation 1.7 as it is in 1.8. [00:19:35] Speaker 04: Whether it's in the second device or the first device, it's the same combination that Google is trying to make. [00:19:40] Speaker 04: And we have that discussion about no motivation to combine and a lack of that feature. [00:19:45] Speaker 04: It's on appendix 368 and 369, at least at those pages. [00:19:52] Speaker 04: With regard to the AVL system, [00:19:54] Speaker 04: and the fixed versus non-fixed terminal and the direct versus indirect connection. [00:19:59] Speaker 04: The point isn't about whether there could be communication between systems wirelessly, about whether one of the skill in the art could communicate between the remote terminal and then the base terminal in a remote embodiment. [00:20:14] Speaker 04: The issue is, where do you put the location sharing capability? [00:20:23] Speaker 04: It can go in one of two places. [00:20:24] Speaker 04: Either it can go in the remote terminal itself, we are getting location of that remote terminal, or it will be back in the home base. [00:20:32] Speaker 04: And so what does Humorolo teach? [00:20:34] Speaker 04: Humorolo teaches an AVL system. [00:20:37] Speaker 04: Google's motivation to combine is to change that AVL system into a different kind of system. [00:20:43] Speaker 04: The box for AVL always resides in a fixed location. [00:20:49] Speaker 04: So if we're taking that system and turning it into a two-way system, [00:20:52] Speaker 04: we are still getting locations of that box. [00:20:55] Speaker 04: That box is with the fixed terminal, one embodiment, and then not with the remote terminal, a second embodiment. [00:21:01] Speaker 04: Sure, it can communicate, but where are you getting the GPS location? [00:21:07] Speaker 01: Okay. [00:21:08] Speaker 01: Thank you, Mr. Rubin. [00:21:09] Speaker 01: Unless there are further questions. [00:21:12] Speaker 01: Hearing none, thank both counsel, the case is submitted.