[00:00:00] Speaker 01:
The next case before the court is docket number 201-261.

[00:00:06] Speaker 01:
It's Caterpillar Paving Products versus Borg and America, Inc.

[00:00:10] Speaker 01:
Mr. Goldberg, you were served three minutes for rebuttal.

[00:00:13] Speaker 01:
Is that correct?

[00:00:15] Speaker 02:
Yes, Your Honor.

[00:00:17] Speaker 01:
Okay.

[00:00:17] Speaker 01:
If you're prepared to begin, you may do so.

[00:00:21] Speaker 02:
Good morning, Your Honors.

[00:00:22] Speaker 02:
May it please the court?

[00:00:24] Speaker 02:
Independent claims 21 and 31.

[00:00:26] Speaker 02:
each specify two requirements for the claimed recall command.

[00:00:31] Speaker 02:
The recall command is entered by an operator, and the recall command includes the respective first or second unique identifier.

[00:00:39] Speaker 02:
The board erred in finding the claims obvious because it mapped the claim recall command only to Panasek, and that reference contains no such recall command.

[00:00:48] Speaker 02:
Following Vertkin's lead, the board mapped the claimed recall command to Panasek's operator input 52 signals and commands.

[00:00:56] Speaker 03:
Mr. Goldberg, can I just double-check something?

[00:00:59] Speaker 03:
As I read Wirtgen's brief, in this court, it makes no argument that if the recall command is what comes out of the operator interface and not what comes out of the controller, it makes no argument that Panoschek teaches that on appeal.

[00:01:22] Speaker 03:
Is that right?

[00:01:23] Speaker 03:
Is that your understanding too?

[00:01:24] Speaker 02:
That is my understanding of Virgen's arguments that they have essentially conceded that if the command needs to come from the operator that it's not in the reference.

[00:01:38] Speaker 02:
Okay, thanks.

[00:01:41] Speaker 02:
So moving on, the board mapped the unique identifiers in the claim to the work set one

[00:01:52] Speaker 02:
and Workset2 in Panachuk.

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Now the problem with these mappings is that the operator input 52 signals or commands don't include Workset1 or Workset2.

[00:02:06] Speaker 02:
So they can't be the claimed recall command.

[00:02:11] Speaker 02:
And again, as you're unrecognized, Fritken doesn't seem to dispute this.

[00:02:17] Speaker 02:
Again, the operator input 52 signals or commands can't be the claimed recall command because they don't include what vert can and the board map to the claimed identifiers works at one and works at two.

[00:02:27] Speaker 02:
The board thus erred when it relied on Panacek for the claimed recall command and found the claims obvious.

[00:02:33] Speaker 02:
For this reason, the court should reverse.

[00:02:35] Speaker 01:
Yes.

[00:02:37] Speaker 01:
I understand that the board found that there was written description support.

[00:02:44] Speaker 01:
I'm just having trouble finding where there's any embodiment disclosed that doesn't leave it to the controller.

[00:02:58] Speaker 02:
Yes, Your Honor.

[00:03:00] Speaker 02:
Let me draw your attention to column 8 of the patent at page 145.

[00:03:10] Speaker 01:
Okay, go ahead.

[00:03:15] Speaker 02:
If we look starting at around line 23, first it's addressing the save.

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So it says, as with the saving of the parameters, the operator may recall and apply the saved set of parameters by entering the recall command, for example, via an input device provided at one of the user interfaces.

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And then in the very next sentence, the extent more than one set of parameters has been saved,

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The operator may recall the desired set of parameters using the assigned identifier.

[00:03:46] Speaker 01:
Okay, can you tell me exactly where you are, column and line?

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What page?

[00:03:50] Speaker 02:
Column.

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Appendix page 145.

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Yes.

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Column 8, beginning at line 23.

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I'll give your honors a moment to get there.

[00:04:10] Speaker 02:
We can see the first sentence in this paragraph talking about how the operator may recall and apply the saved set of parameters by entering the recall command, for example, via an input device provided at one of the user interfaces 68.

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And then in the very next sentence, further explaining that, to the extent more than one set of parameters has been saved, the operator may recall the desired set of parameters using the assigned identifier.

[00:04:37] Speaker 02:
So right there is an example of

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written description support in the patent itself.

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And this same discussion also exists in the application and in the two provisional applications that led to the patent.

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In addition, I think, as your Honor noted, the Board already found that there is written description support for this.

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And in fact, that was after Ritkin's counsel at the hearing

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for the first time had brought this up.

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So the board was well aware that this was something that Virkin was concerned about.

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And again, in the final written decision, the board found that there was written description support.

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Now, on appeal here, it seems that Virkin's main argument is that somehow it is sufficient for the controller in Panishack to be what uses the identifiers.

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And one of their big arguments for that is that they claim the board found that the recall command is something that is on the controller side and using the controller instructions.

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For that, what they point to is the board's claim construction discussion that was actually addressing the original claims, not the amended claims.

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The dispute about those original claims was whether the recall command itself

[00:06:07] Speaker 02:
required the use of an identifier.

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And what the board found is that there was discussion in the patent of the identifiers in the context of the controller, but they also noted that there was, similar to what we just looked at in column eight, discussion in the patent of the operators using the identifiers.

[00:06:31] Speaker 02:
And the board found in that claim construction for the original claims

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that the identifiers weren't required to be in the recall command because these discussions about the operators using the identifiers in the patent were permissive.

[00:06:47] Speaker 02:
They were not enough to constitute disavowal.

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But we're now in a very different situation because Caterpillar amended the claims and in the amended claims they expressly require that the recall command include the identifiers.

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And they also expressly require that the recall command be entered by the operator.

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So what we need to have is a situation where the recall command again is entered by the operator and also includes the first or second unique identifier.

[00:07:23] Speaker 02:
The problem Vertgen has is that everything that it's pointed to does not meet those requirements.

[00:07:32] Speaker 02:
If we talk about the

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Operator input, 52 signals and commands, those don't include the alleged unique identifiers, work set 1 and work set 2.

[00:07:43] Speaker 03:
Can I just say again, whatever Workin said below, I think it remains true, and they can correct me if I'm wrong, that in this court, Workin makes zero argument

[00:07:59] Speaker 03:
that if the recall command is what comes out of the operator interface, not what comes out of the controller, that Panacheck meets it.

[00:08:09] Speaker 03:
That is, this is, as far as I can tell, a simple forfeiture at this point of any argument at all if the requirement of these claims is that the recall command comes out of the operator interface.

[00:08:24] Speaker 03:
I believe that's the case, Your Honor.

[00:08:26] Speaker 03:
I think they may actually have had

[00:08:28] Speaker 03:
an argument in the board about this, but they don't make it here.

[00:08:34] Speaker 02:
I agree, Your Honor, and the argument that they do make here where they point solely to the controller instructions, just to reiterate the point one more time, the controller instructions are not something that's entered by the operator.

[00:08:48] Speaker 03:
Just to avoid an ambiguity.

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By controller instructions, everybody here means instructions coming out of the controller, not instructions going to the controller.

[00:09:02] Speaker 03:
Yes.

[00:09:03] Speaker 03:
Okay.

[00:09:04] Speaker 03:
The ambiguity is not inconsiderable.

[00:09:09] Speaker 02:
Yes, Your Honor.

[00:09:12] Speaker 02:
So, again, because Vertgen has identified nothing that both is entered by the operator and includes

[00:09:22] Speaker 02:
the alleged identifiers, work set one and work set two, or even the other alleged identifiers that it's now noted, the memory addresses and pointers, those also aren't anything that is in any recall command coming from the operator.

[00:09:41] Speaker 02:
For those reasons, there's no evidence.

[00:09:43] Speaker 01:
That if the board had considered CVER, that you would have a totally more difficult argument to make

[00:09:55] Speaker 02:
Yeah, and I think if the board considered SEVER, it might be a different argument.

[00:10:01] Speaker 02:
I don't know that I would characterize it as more difficult.

[00:10:05] Speaker 02:
You know, as you note, the board did not consider SEVER.

[00:10:08] Speaker 02:
There's, I think, two reasons for that.

[00:10:10] Speaker 02:
First, in the initial raising of SEVER by Rick and they premised the whole point of SEVER being, we're going to look at this.

[00:10:21] Speaker 02:
if the board finds that there's no written description support for unique identifier.

[00:10:26] Speaker 02:
The board didn't find that way, so there was never a contingency in place for the board to look at CVER in that regard.

[00:10:35] Speaker 02:
Berkkin then completely changed its arguments about CVER in its self-reply, and there again, that's simply too late for Berkkin to be making new arguments, so it was entirely appropriate for

[00:10:50] Speaker 02:
the board to have not reached those arguments.

[00:10:52] Speaker 02:
And indeed, on remand, there would be no reason for the board to necessarily reach those arguments.

[00:10:58] Speaker 02:
It would be completely within their discretion to decide that Virkken raised those arguments too late.

[00:11:04] Speaker 02:
And therefore, there was no need to address them.

[00:11:05] Speaker 01:
And that's a good point.

[00:11:06] Speaker 01:
So why do you want us to tell them what they can and can't review on remand?

[00:11:11] Speaker 02:
Oh, we don't, actually.

[00:11:12] Speaker 02:
Our only reason for discussing this in our gray brief was that Virkken

[00:11:19] Speaker 02:
put in a litany of different things that it thought the board would have to address on remand.

[00:11:25] Speaker 02:
And our point in our gray brief was simply that you, the court, do not have to tell the board to do all of those things because it is within the board's discretion to choose for various different reasons, including that Berkman's arguments were too late, that it doesn't need to address those issues.

[00:11:43] Speaker 02:
Instead, we think given what has transpired here,

[00:11:47] Speaker 02:
that the appropriate remedy is for the court to reverse the board's obviousness findings and remand for the board to do whatever further proceedings it sees fit to do in view of the court's decision.

[00:12:01] Speaker 03:
Including obviousness on preserved grounds other than simply based on panacea.

[00:12:13] Speaker 02:
To the extent that those were not

[00:12:16] Speaker 02:
raised too late or may have contingent in some way than the board would have the ability.

[00:12:22] Speaker 03:
Right.

[00:12:22] Speaker 03:
It wouldn't just be, you know, remand for consideration of 101.

[00:12:26] Speaker 03:
There are other obviousness arguments that at least Workin says it has preserved, maybe in fact is, something for the board to decide that we wouldn't be disposing of.

[00:12:41] Speaker 02:
Yes, Your Honor.

[00:12:41] Speaker 02:
Our position would be that the board would have the ability

[00:12:44] Speaker 02:
to address those arguments, if it shows to do so, but that it would not be necessarily required to do so because there may be reasons within its discretion that it doesn't need to, for example, avert in having waited too long to raise the arguments.

[00:12:59] Speaker 02:
And if there's no other questions, I'll reserve the remainder of my time.

[00:13:05] Speaker 01:
Okay.

[00:13:05] Speaker 01:
Thank you, Counsel.

[00:13:09] Speaker 01:
Let's hear from Worskin.

[00:13:12] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:13:15] Speaker 04:
Caterpillar can't have it both ways.

[00:13:18] Speaker 04:
Either Peck's disclosure is sufficient under obviousness, or the 871 patent has no written description support for including an identifier in the recall command.

[00:13:28] Speaker 04:
In the motion to amend, Caterpillar argued that the 871 patent's discussion of using an identifier provided the written description support for a recall command that includes an identifier.

[00:13:40] Speaker 04:
This is that Appendix 446.

[00:13:45] Speaker 04:
And despite saying that using an identifier was sufficient under 112, Caterpillar argued that the same disclosure in Panishak was insufficient under obviousness.

[00:13:54] Speaker 03:
Can I just ask you, this is just Toronto, I mean it seems to me there are kind of two claim construction kinds of issues here.

[00:14:00] Speaker 03:
One of them is who has to send the recall command, the operator interface or the controller.

[00:14:08] Speaker 03:
A second separate issue is whether using

[00:14:12] Speaker 03:
identifier is the same as including identifier.

[00:14:16] Speaker 03:
If it were correct that under the claim language and indeed the specification that the recall command is only what comes out of the operator interface, not what comes out of the controller, what is the relevance of whatever your, of the, I don't know, asserted can't have it both ways kind of problem about what was said on written description?

[00:14:42] Speaker 03:
which seems to depend on this use includes distinction.

[00:14:48] Speaker 04:
Right, Your Honor.

[00:14:49] Speaker 04:
If it is only the signal sent between the user interface and the controller, Verkan had an argument below that Panishak discloses the recall command that includes identifiers under this narrow construction.

[00:15:06] Speaker 03:
And that's, for example... Right, but you didn't make that argument in your red brief in this court.

[00:15:11] Speaker 04:
Right, because the board didn't reach that decision.

[00:15:15] Speaker 04:
So that would be another decision that was... I don't think so.

[00:15:20] Speaker 03:
Why would that not be absolutely part of your argument for the defense of what the board did, which was to rely on what comes out of the controller?

[00:15:35] Speaker 03:
How is it that you were not obliged to say,

[00:15:41] Speaker 03:
that even if, as the blue brief argues, the only thing that matters is what comes out of the operator interface, we have that.

[00:15:57] Speaker 04:
So the board made its finding out appendices.

[00:15:59] Speaker 04:
56, where it explicitly relied on the work set one and work set two identifiers.

[00:16:06] Speaker 04:
And the only argument that we raised below regarding those identifiers, which is what the board relied on, is where the recall command is at the controller level.

[00:16:16] Speaker 04:
And so that's why this appeal was limited to what is at the controller level versus what is in the signal.

[00:16:24] Speaker 04:
We also had the CBER argument, which was referenced earlier today,

[00:16:27] Speaker 04:
in combination with Panasek's touch screen interface, that that would have also been obvious to do.

[00:16:37] Speaker 04:
And the fact that it was well known to include unique identifiers in recall commands sent from a touch screen interface to a controller, that was also established below where Caterpillar's expert testified that he had

[00:16:53] Speaker 04:
as a graduate student implemented a system where you could save and recall over 400 positions.

[00:16:59] Speaker 04:
But I do also want to respond to Caterpillar's argument about the word enter in the claims, because as Judge Toronto, you mentioned, that is also an issue in the claims that Caterpillar is raising again.

[00:17:15] Speaker 04:
And Caterpillar is trying to make it so that the operator must enter the recall command into the operator input device.

[00:17:24] Speaker 04:
But the claims don't say this.

[00:17:25] Speaker 04:
The claims recite an operator input device configured to allow an operator of the paving machine to enter a recall command.

[00:17:34] Speaker 04:
It doesn't say where the recall command is or where it must be entered.

[00:17:38] Speaker 04:
And so the claim language here actually supports the board's conclusion about PANISHEC that a signal from the second operator input enters the controller's recall command.

[00:17:48] Speaker 04:
It's entirely consistent and, you know, this interpretation is supported by substantial evidence.

[00:17:53] Speaker 03:
What do you do with both the claim language and I think the consistent usage throughout the specification that what the controller does is in response to a recall command.

[00:18:06] Speaker 03:
It sends various signals to actuators and whatnot.

[00:18:11] Speaker 03:
But I don't remember seeing anything anywhere in the spec that ever says that what comes out of the controller is a recall command.

[00:18:20] Speaker 03:
It seems uniformly to say that the

[00:18:23] Speaker 03:
controller acts in response to a recall command?

[00:18:29] Speaker 04:
So in Panashak, what the recall command is, is actually at the controller.

[00:18:34] Speaker 04:
It's not the signal sent out of the controller.

[00:18:37] Speaker 04:
The signal that's sent out of the controller is retrieving the work set parameters in response to the controller instructions that are executed at the controller.

[00:18:48] Speaker 03:
Well, I guess maybe I've been thinking about this wrong.

[00:18:53] Speaker 03:
I thought there are only two possible commands from the operator interface to their controller and from the controller to somewhere else.

[00:18:59] Speaker 03:
Are you suggesting that there is inside the controller a command that is neither received by the controller or goes out of the controller?

[00:19:07] Speaker 03:
Is it talking to itself or what?

[00:19:11] Speaker 04:
It's executing the instructions, yes.

[00:19:14] Speaker 04:
The instructions at the controller is

[00:19:16] Speaker 04:
is causing the work set parameters to be mapped to the identifiers, work set one and work set two.

[00:19:26] Speaker 04:
And this can be seen at figure three of PANISHAC at appendix 1647.

[00:19:34] Speaker 04:
In steps 76 and 80, those steps are the controller instructions that are then mapping the identifiers to the corresponding set of

[00:19:46] Speaker 04:
It's mapping the identifiers to the corresponding set of parameters.

[00:19:51] Speaker 01:
What appendix page are you on?

[00:19:54] Speaker 04:
1647.

[00:19:56] Speaker 01:
Thank you.

[00:20:02] Speaker 04:
And you said which box?

[00:20:05] Speaker 04:
So box 76 and box 80 are the different operations that the controller executes

[00:20:16] Speaker 04:
And then after that is when the machine will configure the different settings on the machine to the corresponding parameters.

[00:20:37] Speaker 03:
So I think as I'm understanding, you think that there are actually three stages at which a command

[00:20:45] Speaker 03:
could issue.

[00:20:46] Speaker 03:
One is from the operator interface to the controller.

[00:20:49] Speaker 03:
The third is from the controller to whatever the controller wants to control, like the actuators.

[00:20:54] Speaker 03:
But that there's this second one in the middle where the controller talks to another component of the controller, like memory or something, in the controller.

[00:21:05] Speaker 03:
And you're saying that the recall command is

[00:21:12] Speaker 03:
is something there in the middle, where one piece of the controller is talking to another piece of the controller before it talks to an outsider.

[00:21:22] Speaker 04:
That's correct, Your Honor.

[00:21:23] Speaker 04:
And both experts agreed that Panashak would use memory addresses and pointers.

[00:21:28] Speaker 04:
And this is along the lines of what they're talking about here.

[00:21:33] Speaker 04:
the controller would look to, for example, a configuration file to know what settings it then would need to configure the actuators of the machine to match.

[00:21:46] Speaker 04:
And it's those controller instructions that form the recall command.

[00:21:50] Speaker 04:
And, Your Honor, this is entirely consistent with the 871 patent, because if you look closely at the language that Caterpillar cited earlier today, and as we showed at

[00:22:03] Speaker 04:
page 32 of the blue brief, of the red brief, the controller is what assigns the identifiers to the corresponding set of parameters.

[00:22:14] Speaker 04:
And it is then using, the controller would be using those identifiers to recall the parameters.

[00:22:21] Speaker 04:
And thereafter, it would set the actuators of the machine to match those parameters.

[00:22:26] Speaker 03:
Where in the spec of the patent that's at issue, the 871,

[00:22:31] Speaker 03:
would I find some support for this notion that a recall command, a phrase the spec uses five or six times or something, is something that the controller is sending to another portion of the controller?

[00:22:51] Speaker 04:
So column seven, line 39 through 42, for example,

[00:22:58] Speaker 04:
says that the controller is the element that is assigning the identifiers.

[00:23:03] Speaker 03:
Right.

[00:23:04] Speaker 03:
That's the assignment.

[00:23:06] Speaker 03:
That's not the recalling.

[00:23:08] Speaker 04:
Right.

[00:23:08] Speaker 04:
But it's, I think, important to keep that context in mind that it is the controller that is assigning the identifiers.

[00:23:17] Speaker 04:
This isn't a system where the user interface allows the user to type in the identifiers.

[00:23:25] Speaker 04:
There's no support and specification for that.

[00:23:27] Speaker 04:
It's not like, you know, an operator can open up a, you know, MS-DOS and type in a command line to the controller.

[00:23:37] Speaker 04:
The controller is assigning the identifiers.

[00:23:39] Speaker 04:
And then in column 8, column 8 lines 26 to 20.

[00:23:51] Speaker 03:
Let's just go back to what I at least think my question was.

[00:23:56] Speaker 03:
What in the specs says that this phrase recall command applies to a instruction the controller sends to something else inside the controller, like a memory?

[00:24:16] Speaker 04:
So at column seven lines 42 through 47,

[00:24:26] Speaker 04:
identifiers are being used in reference to storing the sets of configuration parameters with access to memory or secondary storage devices.

[00:24:38] Speaker 04:
And it's that memory or secondary storage devices that would have the corresponding set of parameters that the controller would then reference to recall.

[00:24:50] Speaker 03:
None of that language uses the term recall command.

[00:24:57] Speaker 03:
That is, immediately starting at line 48, it says the controller gets a recall command and in response does a bunch of things like goes and gets some information and uses that information to then tell the actuators what to do.

[00:25:18] Speaker 04:
Right, Your Honor.

[00:25:19] Speaker 04:
I think some of the

[00:25:20] Speaker 04:
confusion here with the specification is the addition of this including language in the claim language.

[00:25:27] Speaker 04:
And the only part that arguably supports that for under 112 support, under 112, is using identifiers, simply using identifiers for the recall.

[00:25:43] Speaker 04:
And Caterpillar's expert at appendix 4299

[00:25:48] Speaker 04:
That's what they relied on for this recall command, is just using identifiers.

[00:25:54] Speaker 04:
And I think the point here is whether a reasonable mind could have reached the same conclusion as the board that, you know, if you're looking at this broad disclosure in the 871 patent, does Panacek disclose similar scope of disclosure?

[00:26:13] Speaker 04:
And it surely does, because Panacek uses identifiers to recall parameters.

[00:26:18] Speaker 04:
I don't think there's a dispute of whether the instructions at the controller is a command that recalls parameters.

[00:26:26] Speaker 04:
So under the broadest reasonable interpretation, which is what we're under, the controller instructions are a recall command.

[00:26:34] Speaker 04:
And then the issue comes back to what was discussed earlier about what entering in the claims mean.

[00:26:40] Speaker 04:
And there, there's definitely substantial evidence to support the board's

[00:26:46] Speaker 04:
conclusion about Pan-Check here as well, because the claims do not recite that you have to enter their recall command into the operator input device.

[00:26:55] Speaker 04:
There's nothing in the claims that limits them in the way that Caterpillar is arguing.

[00:27:05] Speaker 04:
So Pan-Check's disclosure is enough under the substantial evidence standard.

[00:27:14] Speaker 04:
And then I also want to make one point in the record straight about the claim mapping for the recall command.

[00:27:22] Speaker 04:
Verkan has argued time and time again that it is the controller that executes the recall command.

[00:27:29] Speaker 04:
The recall command is at the controller level and the signal from the operator input device merely enters the controller's recall command.

[00:27:36] Speaker 04:
Caterpillar is trying to argue that Verkan has only relied on the signal sent from the

[00:27:43] Speaker 04:
operator input device to the controller, but that's not Verkin's argument, and it has never been Verkin's argument.

[00:27:50] Speaker 04:
And this is not the board's finding at Appendix 56.

[00:27:54] Speaker 04:
The board found that the identifiers are workset 1 and workset 2, and those identifiers are used in the recall command.

[00:28:02] Speaker 04:
That's what the board found at Appendix 56.

[00:28:03] Speaker 01:
So what do we do, counsel, with the fact that the claim language, the whole

[00:28:10] Speaker 01:
point of the claim language is to significantly narrow what the specification might otherwise cover.

[00:28:19] Speaker 04:
Well, it would be improper to narrow to cover an embodiment that is not covered under the specification.

[00:28:29] Speaker 01:
Can we review the board's determination that there is written support since it made that determination as part of its

[00:28:40] Speaker 01:
a threshold conclusion that they satisfied the rules, the board's own rules?

[00:28:47] Speaker 04:
So two points on that, and I understand my time is up, but if you give me just a moment to answer that question.

[00:28:54] Speaker 04:
Okay.

[00:28:54] Speaker 04:
So first, the board would have to revisit that finding under 112, because under their obviousness, it was clear, obviousness finding, it was clear that they determined that Panishak had similar scope, and so

[00:29:10] Speaker 04:
you know, if that same scope is sufficient for 112, you know, then it was sufficient under obviousness.

[00:29:19] Speaker 04:
But if this court finds that the recall command has to be limited to this narrow reading under broadest reasonable interpretation even, then, you know, the board would have to reconsider that.

[00:29:33] Speaker 04:
And, you know, because, you know,

[00:29:37] Speaker 04:
You don't want the board to write an internally inconsistent decision.

[00:29:40] Speaker 04:
That is essentially the definition of an arbitrary and capricious standard violation.

[00:29:47] Speaker 04:
And so either the claims are either Panestract's disclosure is sufficient under obviousness or the 871 patent has no written description support.

[00:29:56] Speaker 04:
And unless there are any other questions, I'll... I appreciate the time today.

[00:30:04] Speaker 01:
No, thank you.

[00:30:04] Speaker 01:
Okay.

[00:30:05] Speaker 01:
Mr. Goldberg, your rebuttal.

[00:30:08] Speaker 02:
Yes, Your Honor.

[00:30:09] Speaker 02:
I'll just have a couple of quick points.

[00:30:11] Speaker 02:
I want to first just direct Your Honor's attention to Appendix page 476, just to point out how clear the claims are about where the recall command is coming from.

[00:30:25] Speaker 02:
At the top of Appendix page 476, we can see that some things are happening, starting at the second line.

[00:30:34] Speaker 02:
In response to a first recall command,

[00:30:37] Speaker 02:
entered by an operator of the paving machine.

[00:30:41] Speaker 02:
So I really don't think there can be any dispute that the claimed recall commands are coming from the operator.

[00:30:47] Speaker 02:
With respect to Fritken's council's point about there not being disclosure of some DOS or some machine or something like that for entering what's going to be the identifiers, I would point your owners to

[00:31:06] Speaker 02:
Appendix page 144 at column 5, starting at line 40, there is a description of the user interface 68.

[00:31:17] Speaker 02:
And it indicates that the input device may be any type of input apparatus, including keypads, touchscreens, tiles, knobs, switches, wheels, et cetera.

[00:31:27] Speaker 02:
So there is definitely a way for the user, the operator, to be entering in those unique identifiers.

[00:31:35] Speaker 02:
And finally, they keep on asserting that both Caterpillar and Virtken's expert pointed to the controller's use of the identifiers as support for the limitation.

[00:31:49] Speaker 02:
That's not accurate.

[00:31:52] Speaker 02:
If you actually look at any of the pages or paragraphs that they have noted, you'll see that they end up pointing to the same type of support that we discussed earlier in column 8.

[00:32:05] Speaker 02:
where it makes it clear that it is the operator, not just the controller that is using the identifiers.

[00:32:12] Speaker 02:
Unless there's any questions, we'll stop there.

[00:32:15] Speaker 03:
This is Judge Sereno.

[00:32:16] Speaker 03:
Can I just ask, because this was, I guess, may well be my fault, but certainly a new thought to me when I heard it from Wordkins Council, that there is such a thing under this specification

[00:32:33] Speaker 03:
as a command internal to, a recall command internal to the controller where one part of the controller gives a command to another part of the controller.

[00:32:45] Speaker 03:
Is that, can you address that including whether that is how things were understood in the lead up to this argument?

[00:32:57] Speaker 03:
Including in the board?

[00:33:00] Speaker 02:
Yeah, I am not aware your honor of any

[00:33:03] Speaker 02:
description in the 871 patent that would create that third command that Vertkin was talking about.

[00:33:11] Speaker 02:
If you look at the, in our blue brief, we actually have a section that describes how it is that we know the board was pointing to the operator input, 52 signals and commands as the recall command, and that will trace through all the way from the final written decision back to Vertkin's petition.

[00:33:32] Speaker 02:
where they were abundantly clear that what they were pointing to for the recall command was the operator input 52 signals and commands.

[00:33:41] Speaker 03:
Okay, one final question for me.

[00:33:45] Speaker 03:
If we were to be remanding this, would the remand appropriately or not appropriately include the opportunity for the board to reconsider its written description conclusion?

[00:33:59] Speaker 03:
as part of its amendment decision?

[00:34:08] Speaker 02:
I don't think that there would be a need for the board to do that.

[00:34:13] Speaker 02:
The board, as we discussed earlier, did in its final written decision find that there was written description support despite working on raising this issue at the last minute in the oral hearing.

[00:34:26] Speaker 02:
And I'm not aware of any

[00:34:29] Speaker 02:
reason that they would have to revisit that or legal authority that would support them revisiting that.

[00:34:36] Speaker 02:
Okay, thanks at this point.

[00:34:39] Speaker 02:
I think my time's up, so I thank you, Your Honors.

[00:34:43] Speaker 01:
All right, thank you, Counsel.

[00:34:45] Speaker 01:
I thank both Counsel.

[00:34:46] Speaker 01:
The case will be submitted.