[00:00:01] Speaker 00:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:06] Speaker 00:
God save the United States and this honorable court.

[00:00:10] Speaker 04:
All right.

[00:00:20] Speaker 04:
The first argued case is number 20-1425, Core Photonics Limited against Apple Incorporated.

[00:00:27] Speaker 04:
Mr. Gaiassa, proceed.

[00:00:31] Speaker 02:
Thank you, Your Honor.

[00:00:31] Speaker 02:
Good morning.

[00:00:32] Speaker 02:
May it please the Court.

[00:00:34] Speaker 02:
My name is Robert Gallardo from Ross Augustine Cabot appearing on behalf of Appellate Court Plotonics.

[00:00:41] Speaker 02:
There are two primary issues presented in this appeal.

[00:00:44] Speaker 02:
First, whether this Court's opinion in Artrex had a constitutionally curative effect on the appointment of APJs immediately upon issuance, and therefore before the Board's final written decision here,

[00:00:56] Speaker 02:
or whether that curative effect occurred when this court issued its mandate in Arthrex and therefore after the board's final written decision here.

[00:01:05] Speaker 03:
Counselor, this is Judge Grayna.

[00:01:07] Speaker 03:
I'm interested in this part of your argument that has to deal with the mandate having not yet issued at the time of the final written decision.

[00:01:14] Speaker 03:
Can you address that part of your argument?

[00:01:17] Speaker 03:
Happy to, Your Honor.

[00:01:19] Speaker 02:
So in the simplest terms, I think the question boils down to whether

[00:01:25] Speaker 02:
Immediately upon issuance of the Arthrex opinion on October 31, 2019, was the secretary immediately empowered to constitute PTAP boards with APJs that could be removed without cause in the protections of Title V as is court held in Arthrex?

[00:01:42] Speaker 02:
And only if that were true could the final written decision here on December 2 be potentially constitutional.

[00:01:49] Speaker 02:
And the answer to that question, we believe, is no for two reasons.

[00:01:54] Speaker 02:
There does not appear to be any dispute that only this court's mandate ends in appeal, including in the Arthrex case, and returns jurisdiction to the agency to carry out the mandate in the court of this court's opinion.

[00:02:07] Speaker 02:
That fairly means that the secretary or director could not reconstitute a board of properly appointed APJs in Arthrex until the mandate issued.

[00:02:17] Speaker 02:
And there's no reason to believe that they could do so in any other case until they're required to do so

[00:02:22] Speaker 02:
either by that mandate in artifacts or mandate in another case.

[00:02:26] Speaker 03:
Why does that render our decision ineffective?

[00:02:29] Speaker 03:
Now, I realize the purpose and the objective of the mandate and how that fits into your argument.

[00:02:37] Speaker 03:
But why would our decision not take effect?

[00:02:42] Speaker 02:
So there's two aspects of that, Your Honor.

[00:02:44] Speaker 02:
The first is what the mandate does.

[00:02:46] Speaker 02:
And what the mandate does is it returns jurisdiction to the agency to carry out

[00:02:51] Speaker 02:
what the court said in its opinion and its judgment.

[00:02:55] Speaker 02:
And because of that, only when that's actually issued could the agency, a party here, do that.

[00:03:00] Speaker 02:
And indeed, there's no reason for a co-equal branch of government to be afforded fewer procedural rights than a private party would have under FRAP 35 and 40 and 41 to seek rehearing of the court's opinion before it had binding effect.

[00:03:14] Speaker 02:
Put simply another way

[00:03:16] Speaker 01:
But that's in the particular case.

[00:03:18] Speaker 01:
I thought the point of our decision is in Caterpillar was that whatever the director could have done in the Arthrex case itself,

[00:03:32] Speaker 01:
As soon as Arthrex came down, it had a precedential effect and that meant that if the director felt like firing one of the board judges the next day, he would have had the legal authority under the precedent to do that.

[00:03:47] Speaker 01:
The mandate has only to do, doesn't it, with what happens in the particular case you're talking about, not the precedential effect.

[00:03:56] Speaker 02:
In the particular case, yes, Your Honor.

[00:03:57] Speaker 02:
I believe what the mandate does is it empowers the director, the secretary, to carry out what the court said in its opinion and judgment in ArcDirects.

[00:04:06] Speaker 02:
But the sorry, decisive point, that precedent, that is indeed the main premise of Apple's and PTS theory for the immediate binding, excuse me, curative effect of ArcDirects on the agency.

[00:04:19] Speaker 02:
But there's several issues with that theory.

[00:04:22] Speaker 01:
First of all, are you making an argument that you agree is contrary to our governing precedent or do you think we don't actually have a governing precedent on this?

[00:04:36] Speaker 02:
Well, to be clear, our reading of Caterpillar, we think a fair reading of Caterpillar is that this particular question has not been decided because in Caterpillar the argument was

[00:04:46] Speaker 02:
whether or not issuing the final written decision after arch directs, it doesn't cure a year's worth of constitutional violations.

[00:04:53] Speaker 02:
And what this court did is it said the motion vacate was denied on that basis of that argument.

[00:04:59] Speaker 02:
So I don't believe the argument that we're making today was fairly presented in Caterpillar.

[00:05:04] Speaker 02:
If the court decides otherwise, that Caterpillar is binding precedent, we would ask it to take it up on bond.

[00:05:09] Speaker 02:
But I do believe that the answer to your question, your previous question, Your Honor,

[00:05:14] Speaker 02:
There is a difference between presidential effect and the mandate.

[00:05:18] Speaker 02:
Precedential effect has immediate stare decisis effect.

[00:05:22] Speaker 02:
That's a different question with different interests at play.

[00:05:26] Speaker 02:
Indeed, it goes to the relationship between tribunals, inferior tribunals, and reviewing appellate courts.

[00:05:34] Speaker 02:
And there's a strong interest there for adherence to opinion itself.

[00:05:39] Speaker 02:
But here, the question is to the binding effect of an opinion on an agency in a case that's a party to that case.

[00:05:45] Speaker 02:
And that agency, because of the co-equal branch of government, should not be afforded fewer procedural rights than a party would have under the rules.

[00:05:56] Speaker 02:
In other words, put simply, the Arthrex opinion could not by itself.

[00:05:59] Speaker 01:
I'm sorry.

[00:06:01] Speaker 01:
Maybe I'm confused about the following.

[00:06:04] Speaker 01:
You talk about somehow the agency having fewer rights.

[00:06:08] Speaker 01:
The remedy portion of the Arthrex decision gave the agency more rights

[00:06:15] Speaker 01:
That's not fewer rights.

[00:06:17] Speaker 01:
What it said was, from this day forward, the director has a new power over the board members.

[00:06:27] Speaker 02:
That is true, Your Honor.

[00:06:29] Speaker 02:
And as a matter of precedent, that would kind of go to the second point I had.

[00:06:33] Speaker 02:
It is a very interesting question what that remedy actually did, if you're talking about the precedent giving that power to the agency.

[00:06:40] Speaker 02:
Because I'm not sure that's actually true.

[00:06:43] Speaker 02:
Because as precedent alone, without effect of the mandate authorizing that action, returning to kind of my initial hypothetical and the question that was raised before, if the APJ were removed without cause, was that permissible under the precedent of this court?

[00:06:59] Speaker 02:
And I think the answer is, we don't know.

[00:07:02] Speaker 02:
And we don't know that for one particular reason.

[00:07:05] Speaker 01:
If an APJ were removed, and then the... I'm sorry, presumably by the secretary, not by the director, but go on.

[00:07:13] Speaker 02:
Correct, yes.

[00:07:15] Speaker 02:
Excuse me if I misspoke.

[00:07:16] Speaker 01:
No, no, I misspoke, sorry.

[00:07:19] Speaker 02:
If an APJ were removed after the Arthrex opinion issued based on the precedent of Arthrex, if that APJ wished to challenge that removal and were seeking relief purely under the CSRA, this court's Arthrex opinion would likely be binding on the MSPB, apart from not Fort, and the MSPB would likely have to dismiss for lack of jurisdiction.

[00:07:42] Speaker 02:
But if that cause were brought by the APJ as a mixed case under Perry, even that jurisdictional dismissal would end up being appealed to a district court and then a regional circuit.

[00:07:51] Speaker 02:
Those courts would not be bound by Arthrex and would have to decide the Appointments Clause issue and Title V severance remedy issue again and did not have to agree necessarily with this court's precedent.

[00:08:02] Speaker 02:
The only point that would change that outcome could be the mandate in Arthrex.

[00:08:08] Speaker 02:
That mandate in Arthrex ordered compliance by the agency with the court's opinion.

[00:08:13] Speaker 02:
So in that instance, the way the construct would work, I believe, is that the mandate would allow the agency to appoint APJs to that or form a board of APJs that it could remove under this court's precedent.

[00:08:30] Speaker 02:
But again, if those APJs challenged that removal and raised a claim of discrimination, it would be a mixed case.

[00:08:38] Speaker 02:
It would go to the regional circuits.

[00:08:39] Speaker 02:
And those regional circuits would not have to abide by this court's precedent.

[00:08:43] Speaker 02:
And that's why the president itself would not necessarily bind and empower the agency, besides the mandate, to then remove APJs without cause.

[00:08:54] Speaker 03:
The only next... Councilor, I'm not clear on your use of third decisive in your reference to that.

[00:09:02] Speaker 03:
If the doctrine has application at all here, it would be in a strict application or decision in Caterpillar, wouldn't it?

[00:09:12] Speaker 03:
I mean, stare decisis goes to judicial opinions, not agency actions.

[00:09:19] Speaker 02:
Yes, Your Honor, that's true.

[00:09:21] Speaker 02:
So that's another reason why stare decisis wouldn't necessarily bind the agency.

[00:09:26] Speaker 03:
But Caterpillar certainly... But it binds this court, right?

[00:09:31] Speaker 03:
I mean, we did issue Caterpillar, and that's pretty clear.

[00:09:34] Speaker 03:
And it seems to encompass your case, except for the timing.

[00:09:38] Speaker 03:
But if we look at the timing now,

[00:09:41] Speaker 03:
Why don't we just say apply star decisis, as you're urging us to do, and find the Caterpillar controls?

[00:09:49] Speaker 02:
Caterpillar, Your Honor, we believe, is not binding because the argument we raised here was not raised in Caterpillar fully.

[00:09:57] Speaker 03:
Caterpillar is decided based on the issue of having the... But the holding of Caterpillar is what applies here.

[00:10:07] Speaker 02:
Yes, Your Honor.

[00:10:08] Speaker 02:
The holding of the Caterpillar, though, was simply to vacate and remand, or sorry, the motion to vacate and remand was denied.

[00:10:16] Speaker 02:
The court did not explain why it was being denied.

[00:10:18] Speaker 02:
What it did was it said, unlike prior cases, and then it talked about the arguments between the parties, and then it denied it.

[00:10:25] Speaker 02:
It didn't necessarily give any of the reasoning underlying that itself.

[00:10:30] Speaker 02:
There was a citation to one of the concurrences and denial of re-hearing, but it did not expressly adopt that.

[00:10:37] Speaker 02:
And if it did, Your Honor, if the panel does feel that Caterpillar is binding precedent on it, then we would ask that it take the issue in bonk.

[00:10:46] Speaker 02:
Because the precedent effect, sorry, decisive effect could not apply to the agency immediately because it's an agency.

[00:10:54] Speaker 02:
It's not an inferior tribunal that would necessarily have to follow this court's precedent in removal proceedings for APJs.

[00:11:02] Speaker 02:
And the clearest example I could find of that, Your Honor, is the mixed case.

[00:11:06] Speaker 02:
If an APJ raised a mixed case, that precedent would not be binding on a removal.

[00:11:11] Speaker 02:
Indeed, it could go to the Fourth Circuit, one of the other circuits.

[00:11:14] Speaker 02:
They could disagree about the severance remedy.

[00:11:16] Speaker 02:
They could disagree about the unconstitutionality of the appointments of APJs.

[00:11:21] Speaker 02:
And they could say that they had remedy under the CSRA and removal protections of Title V, which would directly conflict.

[00:11:29] Speaker 02:
And in that way, the only other possibility would be one of the options that Judge Dyke suggested in his dissent

[00:11:35] Speaker 02:
the denial of resumption in Arthrex, which was discussing the difficulty of identifying at what point in time the appointments become effective.

[00:11:45] Speaker 02:
And I think at that point, the next one would be the Supreme Court affirmation.

[00:11:48] Speaker 02:
Only that Supreme Court opinion would necessarily resolve the issue for all the circuits and determine whether or not finally, as a matter of precedent and stare decisis, that in any case, mixed case or otherwise,

[00:12:02] Speaker 02:
APJ did not have the rights afforded to them by statute under the CSRA.

[00:12:08] Speaker 02:
If there's no further questions, I see them in my rebuttal time.

[00:12:11] Speaker 04:
Well, I think we'd like to hear some of your argument on the merits of the appeal as well.

[00:12:18] Speaker 04:
So let's, Mila, how about restarting the clock for 10 minutes in addition for Mr. Garza and let's turn to the merits of the appeal.

[00:12:29] Speaker 02:
Certainly.

[00:12:30] Speaker 02:
Thank you, Your Honor.

[00:12:32] Speaker 02:
So the dispute on the merits is a very straightforward dispute.

[00:12:35] Speaker 02:
It's whether border discloses, the border prior reference discloses outputting a composite image with the claimed quote point of view of the first camera.

[00:12:46] Speaker 02:
And that boils down to the meaning of point of view in the claims.

[00:12:50] Speaker 01:
Yeah, I don't see in your blue brief a claim construction challenge.

[00:12:57] Speaker 02:
So we raised it in, I believe it's fairly raised on pages 28 to 34 of the blue brief, Your Honor.

[00:13:03] Speaker 02:
And specifically what we said on page 28, we said border discloses this, and then we continued on and said that as core photonics argued before the board, the term point of view should be construed as camera angle.

[00:13:17] Speaker 02:
We then explained why

[00:13:19] Speaker 02:
under our reading of camera angle and I'm happy to talk about that.

[00:13:23] Speaker 01:
Right, so on page 20 you say as we argued and then it says, however, regardless of whether point of view is expressly construed and now it's back to border.

[00:13:31] Speaker 01:
I don't think for a claim construction issue that is not self-evident on its face and I think this definitely falls into that category.

[00:13:45] Speaker 01:
Let's see how that's a preservation of an actual claim construction argument under a BRI standard, looking at the spec, looking at all the stuff you would do in claim construction.

[00:13:54] Speaker 01:
The reason I focus on this is that it seems to me while you have at least taking the board's opinion with one possible exception,

[00:14:02] Speaker 01:
as a given.

[00:14:07] Speaker 01:
You have an argument about when the angle of the camera shifts, you may actually see something from one angle that you don't see from the other, at which point if you're just taking the two images, they can't possibly be from the same camera angle.

[00:14:25] Speaker 01:
But on the other hand, if the two images are from

[00:14:29] Speaker 01:
the same camera angle, at least materially the same camera angle, then the flat triangle circle rectangle diagram of border would seem to do it.

[00:14:47] Speaker 02:
So two responses, Your Honor.

[00:14:48] Speaker 02:
I just want to unpack your question.

[00:14:50] Speaker 02:
The first point about the potential not raising it in the open brief.

[00:14:54] Speaker 02:
On page 28, the sentence that starts,

[00:14:57] Speaker 02:
I think the best read of that is saying that it's a plain meaning because it's so simple.

[00:15:03] Speaker 02:
And that's exactly what we're talking about.

[00:15:06] Speaker 01:
I suppose I disagree that it's a plain meaning because quite a lot of the spec seems to be about something different from that and the one piece of the spec that is this phrase EG camera angle or just parenthesis camera angle which certainly works in your favor but I don't see

[00:15:33] Speaker 01:
that under a broadest reasonable interpretation, that it would be unreasonable to say that the spec when it talks about point of view includes something other than different camera angles, in which case all this business about parallax and tilt wouldn't actually be included in the required claim element.

[00:15:59] Speaker 02:
So I think the answer to your question, Your Honor, is very straightforward based on the claim construction that we proposed.

[00:16:07] Speaker 02:
And that can be found at pages 871 to 72 of the appendix.

[00:16:13] Speaker 02:
And mainly, under a BRI standard, it has to be the broadest.

[00:16:17] Speaker 02:
And the broadest interpretation of point of view fairly would be that point of view has multiple aspects, position, and also perspective.

[00:16:27] Speaker 02:
And that's exactly what we said to the board in our claim construction argument for point of view.

[00:16:32] Speaker 02:
If you turn to page 872.

[00:16:36] Speaker 01:
I'm not sure that's right about what the broadest the broadest coverage.

[00:16:41] Speaker 01:
of the claim would be that two different cameras or two different lenses have different point of views even if they don't have different camera angles.

[00:16:53] Speaker 01:
That's broader than saying for there to be different point of view between camera one and camera two, they have to be from different camera angles.

[00:17:04] Speaker 02:
I think that the dispute here would be about the meaning of the term point of view.

[00:17:08] Speaker 02:
So the broadest interpretation of point of view is that it encompasses all aspects of point of view itself.

[00:17:14] Speaker 02:
As we argued on page 872, Tua Posita would understand that because there are two cameras and images with different angles, a given object will be shifted and have a different perspective, that shape, and also the position, the shift of the object.

[00:17:32] Speaker 02:
So those different shapes, including the potential occlusion and the shapes, are what the claims invention is addressing.

[00:17:37] Speaker 02:
But admittedly, Boulder does not address the different shapes.

[00:17:41] Speaker 03:
I think, counsel, that this argument lands right on the decision point of the merits.

[00:17:51] Speaker 03:
It's because you're arguing that Boulder doesn't teach that an output image from a point of view of the first camera as required by the claim.

[00:17:59] Speaker 03:
That's your argument.

[00:18:01] Speaker 03:
And yet, when the experts got around to testifying, your expert could not testify about stitching.

[00:18:10] Speaker 03:
And that leads to this point where we're at.

[00:18:15] Speaker 03:
And he said he wasn't an expert in the case, so the board did not give your expert as much weight.

[00:18:25] Speaker 03:
Am I viewing this correctly?

[00:18:27] Speaker 02:
That is true, Your Honor.

[00:18:28] Speaker 02:
The board did not give our expert as much weight.

[00:18:31] Speaker 02:
The fundamental issue is whether Apple's expert applied the correct claim construction and the meaning of point of view to border, and we suggested did not.

[00:18:40] Speaker 03:
Because what border does, as we discussed... Well, that aside, your argument, regardless of the claim construction, is that border does not teach providing an output image from the point of view of the first camera.

[00:18:54] Speaker 03:
That's your argument, but yet your evidence doesn't back up your argument.

[00:19:00] Speaker 02:
Well, respectfully, Your Honor, we do believe that it does if the correct construction of point of view is adopted.

[00:19:06] Speaker 02:
Because the correct construction of point of view is that point of view requires perspective and position.

[00:19:12] Speaker 02:
And what border does is it just does scaling.

[00:19:15] Speaker 02:
And through that stitching and homography, it changes the position of x, y coordinates of the objects in the secondary image to match the position in the primary image.

[00:19:24] Speaker 03:
Correct.

[00:19:25] Speaker 03:
But your expert wasn't able to testify as to the stitching part of that argument you just made.

[00:19:33] Speaker 02:
Even if our expert were not able to do that, Your Honor, Apple's expert would still have to apply the correct construction and say that border, and the board would also have to conclude that border did disclose both position and perspective.

[00:19:45] Speaker 02:
And so that construction of point of view that is both position and perspective is important.

[00:19:50] Speaker 02:
And I think on page 872 of the record,

[00:19:53] Speaker 02:
We made that very clear to the board, that a point of view to a posita is not just position, as in border and prior art references.

[00:20:03] Speaker 02:
It's also perspective.

[00:20:06] Speaker 02:
And in the 152 patent, there is a disclosure of a detailed algorithm on columns seven to nine of the patent that uses demosaic ink, registration of luminance on images to avoid color artifacts,

[00:20:20] Speaker 02:
and other correspondence metrics all executed on a pixel by pixel basis.

[00:20:25] Speaker 03:
Were these claim construction arguments made before the board?

[00:20:29] Speaker 02:
Yes, they were, Your Honor.

[00:20:32] Speaker 02:
Why were they not made in your opening brief?

[00:20:35] Speaker 02:
I think they were fairly made in the opening brief because what we're talking about in the opening brief, Your Honor, on pages 28 to 34 is how border does not disclose adapting towards and

[00:20:47] Speaker 02:
accommodating perspective.

[00:20:48] Speaker 03:
That's the point I was taking.

[00:20:50] Speaker 03:
That's the point I was making.

[00:20:51] Speaker 03:
That's the main argument where the border discloses and now put image from a point of view of the first camera or not.

[00:20:58] Speaker 02:
Yes, that's premised.

[00:20:59] Speaker 02:
And that's your argument.

[00:21:02] Speaker 02:
That's correct, Your Honor.

[00:21:02] Speaker 02:
It's premised on the meaning, though, of point of view as to whether the point of view is position alone as Apple assumed in its argument and as the board assumed by rejecting on pages seven to eight of the appendix our claim construction

[00:21:17] Speaker 02:
and saying it wouldn't have any effect.

[00:21:20] Speaker 03:
Just setting aside claim construction, when you argue the point of view of the first camera with respect to the point of view of the second camera, your argument is on the stitching position.

[00:21:35] Speaker 03:
But you weren't able to provide evidence to support your stitching argument.

[00:21:39] Speaker 03:
And I think that's central to what you're saying now.

[00:21:44] Speaker 03:
You can help me out with this and let me know if I'm correct with that or not.

[00:21:48] Speaker 02:
Certainly, Your Honor.

[00:21:49] Speaker 02:
I don't believe there's any dispute that what Border teaches in the portions of Border that was relied on by the Board.

[00:21:55] Speaker 02:
Border teaches stitching and homography as put in the petition, Apple's petition, at pages 149 to 50 of the appendix and page 28 of Apple's red brief.

[00:22:05] Speaker 03:
Does Border teach an output image from the point of view of the first camera?

[00:22:10] Speaker 02:
not a point of view as correctly construed under 152 pattern, because border only changes position.

[00:22:16] Speaker 02:
It does not account for perspective, the shape of the objects themselves.

[00:22:20] Speaker 02:
And what border does, if you look at Bluebrief on page 30, what border does is it uses these matrices and that algorithm to simply shift by one kind of factor, shift the position of the first image into the second image.

[00:22:39] Speaker 04:
Please continue your thought.

[00:22:42] Speaker 02:
Thank you, Your Honor.

[00:22:43] Speaker 02:
It shifts the position of one image to the other.

[00:22:46] Speaker 02:
But I don't believe there's any dispute here that on the portions of the border reference that were relied on by the board, that it does not accommodate changes in perspective.

[00:22:56] Speaker 02:
And as we said to the board, very clearly on 872, point of view in the patent requires not just position, but also perspective.

[00:23:06] Speaker 02:
And that perspective is a change in shape

[00:23:08] Speaker 02:
As you see in the picture that we put up of the buildings on page 29, the circled portions of the decorations on the posts, there are different shapes in two of the pictures.

[00:23:20] Speaker 02:
And that is essentially exactly what a proceder would understand point of view to be in this patent, that it's not just position like Bordert did.

[00:23:30] Speaker 02:
but it's also perspective, and perspective is necessary, and that's the inventive aspect of this invention, as shown by the algorithm that's disclosed in detail in columns seven to nine of the pattern.

[00:23:43] Speaker 02:
Unless there's any further questions, I'm happy to address any further ones on rebuttal.

[00:23:49] Speaker 04:
Okay, anything else from Mr. Gray-Archer at the moment?

[00:23:53] Speaker 02:
No, thanks.

[00:23:54] Speaker 03:
No, thank you.

[00:23:55] Speaker 04:
Good.

[00:23:55] Speaker 04:
All right, thank you.

[00:23:56] Speaker 04:
Then we'll hear from the other side.

[00:23:59] Speaker 04:
Council for APPLE, Ms.

[00:24:01] Speaker 00:
Oliver.

[00:24:03] Speaker 00:
Thank you, Your Honor.

[00:24:05] Speaker 00:
And may it please the Court.

[00:24:06] Speaker 00:
This is Angela Oliver on behalf of APPLE.

[00:24:09] Speaker 00:
The Court should affirm the Board's decision because this appeal is not eligible for an ARTHREX remand and the Board's obviousness and determination is fully supported in the record.

[00:24:21] Speaker 00:
As to the first issue regarding ARTHREX,

[00:24:23] Speaker 00:
This appeal is not eligible for a remand because the final written decision issued after our threats.

[00:24:29] Speaker 00:
As this court has already alluded to this morning, this court's decision in Caterpillar fully resolves this issue.

[00:24:35] Speaker 00:
The facts of that case cannot be materially distinguished from the facts of this case.

[00:24:40] Speaker 01:
I think Mr. Guyarza's position is that I don't think he said the facts were any different, he just said that the arguments were different.

[00:24:51] Speaker 01:
I took him to be saying that there was no argument specifically about mandate or some other aspect of the argument he's making was not, he may have said something like as fully developed or not developed at all, not that there was actually any difference in the scenarios, the relevant facts.

[00:25:12] Speaker 00:
Yes, that's correct, Your Honor.

[00:25:13] Speaker 00:
We simply emphasize that the holding in Caterpillar is what should govern here.

[00:25:17] Speaker 00:
And the reasoning cited in Caterpillar, although it did not address this mandate argument, it did cite Judge Moore's concurrence in the denial of rehearing, which explained that APJs were constitutionally appointed as of the implementation of the severance.

[00:25:32] Speaker 01:
What do you make of Mr. Gaiars argument?

[00:25:36] Speaker 01:
Obviously this is not for the panel if we think Caterpillar decides it, but his point that conceivably even as to the Arthrex petitioner

[00:25:48] Speaker 01:
itself, I'm not entirely sure, but as do others because of the mixed case division of reviewing authority.

[00:26:02] Speaker 01:
If authority by way of the remedy in Arthrex

[00:26:09] Speaker 01:
to fire a board member got challenged and the challenge included a discrimination claim that wouldn't come within this court's jurisdiction but go to a regional circuit.

[00:26:23] Speaker 00:
Sure.

[00:26:24] Speaker 00:
Your Honor, with two responses to that argument.

[00:26:27] Speaker 00:
First, what matters is how the court's Arthrex opinion affects the procedural issues, the IPRs that this court has jurisdiction over.

[00:26:35] Speaker 00:
And with respect to those, this court's opinion in Arthrex is absolutely binding as of the day it issued.

[00:26:40] Speaker 00:
With respect to the mixed case scenario where a removal case from the MSPB could end up at another regional circuit, the fact of the mandate eventually issuing in Arthrex would not resolve that problem either.

[00:26:53] Speaker 00:
This court in Arthrex provided an interpretation of a statute held that the removal protections do not apply in this particular context.

[00:27:02] Speaker 00:
That's an interpretation of a statute.

[00:27:04] Speaker 00:
And that governs this court's precedent going forward.

[00:27:07] Speaker 00:
And as with any interpretation of a statute, another regional circuit is not going to be bound by this court's interpretation of the statute, regardless of the timing of the mandate.

[00:27:17] Speaker 00:
And so this court should not delay implementation of Arthrex just because of the practical reality that, as in every case, regional circuits may differ from this circuit with respect to a matter of statutory interpretation.

[00:27:30] Speaker 00:
And ultimately that would be an issue if there is a circuit split.

[00:27:33] Speaker 00:
for the Supreme Court to resolve.

[00:27:35] Speaker 01:
But what we do know... Perhaps in an employment case, which this isn't.

[00:27:40] Speaker 00:
Exactly, Your Honor, that's correct.

[00:27:42] Speaker 00:
What we do know is that the holding in Caterpillar addresses this issue based on the timing of the final written decision in this case, and this court has addressed the mandate argument in other contexts, in non-precedential decisions.

[00:27:54] Speaker 00:
For example, of course, in document security systems versus Nichea, and in a later case, another non-precedential case in Infinium,

[00:28:01] Speaker 00:
And that analysis is consistent with how other circuit courts have treated this as well.

[00:28:07] Speaker 00:
And particularly, I'd like to highlight the Ninth Circuit's opinion in Reza Menno Gomez, because that, I believe, addresses the other point that Mr. Garza has made today, which is that the fact that the government is a party in the Arthrex proceeding seeking further review of that opinion does not change the outcome.

[00:28:26] Speaker 00:
In the Ninth Circuit's case,

[00:28:29] Speaker 00:
a similar set of facts was in play.

[00:28:31] Speaker 00:
Now, of course, it was a criminal case, but the government was a party in that case, and the government disagreed with an opinion from the Ninth Circuit, and so the government sought further review of that Ninth Circuit opinion.

[00:28:43] Speaker 00:
But yet, despite the fact the government was a party still seeking further review, the Ninth Circuit still held in Germano Gomez that

[00:28:51] Speaker 00:
the opinion that was on further review was still binding as to cases going forward and as to the government in cases going forward in that circuit.

[00:29:01] Speaker 00:
And so this court's reasoning in its non-precedential decisions rejecting the mandate argument is consistent with those cases as well.

[00:29:08] Speaker 01:
So in short... Can I ask you a merits question?

[00:29:13] Speaker 01:
I don't want to stop the discussion if others want to continue on the Arthrex, but...

[00:29:18] Speaker 00:
Of course, Joanna.

[00:29:20] Speaker 01:
So on the merits, rather a lot, maybe even this morning, everything in Mr. Geier's argument turns on accepting the claim construction that Core Photonics did argue below that for the two lenses have different points of view only if they are shooting from different camera angles.

[00:29:48] Speaker 01:
Explain to me what your view of that is, including whether the blue brief fairly raises that claim construction challenge, because the board said we don't actually have to decide that, right?

[00:30:06] Speaker 00:
That's correct, Your Honor.

[00:30:07] Speaker 00:
So at appendix pages seven and eight of the board's opinion, the board addressed this claim construction argument.

[00:30:13] Speaker 00:
But to be clear, what that claim construction argument looked like before the board was not the occlusion type argument that we're seeing now, and that we saw addressed before the board in the factual application context.

[00:30:27] Speaker 00:
Excuse me.

[00:30:29] Speaker 00:
So the board declined to construe the term, whether it be camera angle or viewpoint, were the parties two views before the board, because the board correctly acknowledged that it would make no difference as to the issues presented in the case.

[00:30:43] Speaker 00:
Now, of course, corporatonics raised the occlusion argument later before the Board with respect to factual application of that.

[00:30:50] Speaker 00:
So, of course, occlusion would make a difference to the case in the overall analysis, but yet the Board's reasoning shows us that the Board was never presented with this occlusion issue as a matter of claim construction.

[00:31:05] Speaker 00:
And turning specifically to Your Honor's question regarding whether this was sufficiently raised in the blue brief,

[00:31:09] Speaker 00:
I think we see the exact same issue again.

[00:31:14] Speaker 00:
Corporatronics suggests that there was a claim construction dispute generally, but never ties that to the occlusion-based arguments it's making.

[00:31:25] Speaker 00:
Even on page one of the blue brief, when corporatronics introduces this issue, it's framed as a substantial evidence question.

[00:31:33] Speaker 00:
And it is our position that that is all this is.

[00:31:36] Speaker 00:
This was never raised as a claim construction matter

[00:31:39] Speaker 00:
before the board or on appeal in the blue brief, and it was only discussed in the context of factual application of the prior art.

[00:31:50] Speaker 00:
But regardless, Your Honor, whether this court were to treat that issue as a matter of claim construction or not, there's still no merit to corporatronics' argument that occlusion should be read into the crime limitations.

[00:32:02] Speaker 01:
At appendix 23 of the board... I don't think I understand the words.

[00:32:08] Speaker 01:
Occlusion should be read into the claim limitation.

[00:32:12] Speaker 01:
I take it, I guess I'm not even sure what the distinction is.

[00:32:17] Speaker 01:
I take it, if you just look at those two pictures of the Georgian facade of

[00:32:24] Speaker 01:
of a building.

[00:32:25] Speaker 01:
They're taken from different angles, self-evidently, because you can see the side of the building in one and you can't see the side of the building in the other.

[00:32:33] Speaker 01:
And that means that if you take in one of them, you can easily have something that is simply not visible, is occluded, is blocked from the other camera angle.

[00:32:49] Speaker 01:
I don't understand why you think those are two different matters.

[00:32:53] Speaker 00:
Sure, of course, Johnna.

[00:32:55] Speaker 00:
Well, looking at the evidence in this case, through one of skill in the art, one would understand that the process of transforming the point of view of an image to the point of view of another image does not always include addressing these sorts of occlusions.

[00:33:11] Speaker 00:
There's different levels of complexity in how this is done, but one of skill in the art would still understand that it is a transformation in point of view, whether or not those particular types of issues are addressed.

[00:33:24] Speaker 00:
So for example, I think one example of this is if your honors would turn to the red brief, page 30.

[00:33:33] Speaker 00:
And this we've included an illustration that Apple's expert provided from a textbook showing the knowledge of a pussy at the time.

[00:33:45] Speaker 00:
And this is describing how homography works.

[00:33:48] Speaker 00:
Homography is a type of registration.

[00:33:50] Speaker 00:
Registration as a concept generally is what refers to this transforming one point of view to another.

[00:33:55] Speaker 00:
And homography is one example of a registration.

[00:33:59] Speaker 00:
And so as seen in this image at the top of page 30 of the red brief, towards the right you can see that a homography is occurring here.

[00:34:06] Speaker 00:
And it's transforming from one point of view, just kind of on the left, and then a homography called H10.

[00:34:14] Speaker 00:
It's a type of registration.

[00:34:17] Speaker 00:
is performed and then you can see a different point of view is attained on the right side of that image.

[00:34:24] Speaker 00:
And you can see this is more than just moving a picture to a different location.

[00:34:30] Speaker 00:
It changes the perspective of the image to a different point of view.

[00:34:37] Speaker 01:
So let's assume, which I take it your argument is now assuming, just by assumption, you're not conceding, just by assumption, that point of view means that two

[00:34:56] Speaker 01:
Two cameras have different points of view only if they have different camera angles.

[00:35:03] Speaker 01:
And if that's true, then the question is, does border teach how when you take a picture from camera angle number two,

[00:35:14] Speaker 01:
and insert it into a background made up of a picture from camera angle one, how the resulting composite has throughout it the camera angle of the background.

[00:35:33] Speaker 01:
I don't understand that.

[00:35:34] Speaker 01:
I don't understand how border teaches that with the possible exception

[00:35:38] Speaker 01:
of the couple of passing references to tilt and parallax in, what is it, paragraphs 41, maybe 48 and 70, which as Mr. Garrister was careful to note, the board did not in fact rely on.

[00:35:56] Speaker 00:
Yes, Your Honor.

[00:35:57] Speaker 00:
So, border teaches this transformation in three separate ways and with different degrees of complexity involved in each of those.

[00:36:06] Speaker 00:
So the first type of registration, all three of these are referred to as registration generally as a broader concept.

[00:36:12] Speaker 00:
The first is this homography that we see here on page 30 of the Red Grace.

[00:36:17] Speaker 00:
This is just an example of what one of skill in the art would have understood it to mean.

[00:36:21] Speaker 01:
But not in fact from border, right?

[00:36:23] Speaker 00:
No, this is not from BORDER.

[00:36:25] Speaker 01:
But BORDER refers, tell me if you disagree with this, its matrix transformations are pure, and it says this a couple of times I think, pure scale and translation.

[00:36:40] Speaker 00:
Yes, that is correct, Your Honor.

[00:36:42] Speaker 00:
It does say that.

[00:36:42] Speaker 00:
However, it also, looking at BORDER and looking at what one of skill and the art would have understood, a scale and translation is not simply

[00:36:52] Speaker 00:
increasing the size of something and moving it over as Core Photonics suggests in its gray brief.

[00:36:58] Speaker 00:
This is a more complicated scale that can occur in multiple dimensions.

[00:37:02] Speaker 00:
And so you can somewhat see this in the illustration provided in the textbook that Dr. Casart relied on.

[00:37:11] Speaker 00:
You can see that when these two kind of green small rectangles are being transformed to the separate point of view,

[00:37:20] Speaker 00:
You can actually see that there's somewhat of a scale that goes beyond the two dimensions.

[00:37:26] Speaker 01:
There's some curvature change.

[00:37:28] Speaker 00:
Yes, Your Honor, exactly.

[00:37:29] Speaker 00:
And so that's what, from the perspective of one, of skill in the art, that's what Dr. Passar explained.

[00:37:36] Speaker 00:
Even with a homography, that transformation occurs.

[00:37:40] Speaker 00:
It is not simply a scale and translation that means size and move the image.

[00:37:46] Speaker 00:
It's a more complicated scale and translation because it occurs in multiple planes.

[00:37:50] Speaker 01:
But is that saying anything other than the word homography covers a lot of territory, not all of it is limited to scale and translation?

[00:37:58] Speaker 01:
I took it, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um, um,

[00:38:16] Speaker 01:
limited to scale and translation.

[00:38:19] Speaker 01:
Again, putting aside the tilt and parallax references which the board did not address.

[00:38:24] Speaker 00:
Sure.

[00:38:25] Speaker 00:
So in paragraph 38, which the board did rely on, paragraph 38 of border, this is appendix page 694, below the text that says the transformation is simply a translation and scale, below that, below this table, border provides

[00:38:41] Speaker 00:
a more complicated aspect when it says the registration can also be stored in the form of the homography that transforms the coordinates of the telephoto to the wide image.

[00:38:52] Speaker 00:
And then you can see that in paragraph 39 there's more description of that.

[00:38:56] Speaker 00:
And then in paragraph 40 you can see there's a three by three matrix here in the homography that represents how this would be occurring on multiple planes.

[00:39:10] Speaker 00:
Essentially, the paragraph 38 is more than just this transition.

[00:39:15] Speaker 01:
Is this something that Dr. Cosair testified about, what you're now talking about?

[00:39:21] Speaker 00:
Yes, Your Honor, and the board specifically relied on this as well in its opinion.

[00:39:25] Speaker 00:
On page, I believe it's page 19 of the board's opinion, they specifically quote this language about the transformation from one point of view to another.

[00:39:37] Speaker 00:
Yes, so it's in the middle of page 19, appendix page 19 of the board's opinion.

[00:39:41] Speaker 00:
They cite this paragraph 38 and 39, of course, and this particular language is what they cite in the form of homography that transforms the coordinates of the telephoto image to the wide image.

[00:39:54] Speaker 00:
And so that is the more complicated concept of homography that the board actually relied on here.

[00:40:01] Speaker 00:
Now, in addition, your honor, I do want to point out that even aside from homography,

[00:40:06] Speaker 00:
Border discloses two other types of registration.

[00:40:09] Speaker 01:
And can I just double check?

[00:40:12] Speaker 01:
I think I just double checked.

[00:40:13] Speaker 01:
But if you just continue on in that paragraph, it ends with a citation to paragraph 114 of the Corsair Declaration, which I think is by a long shot the best thing you have.

[00:40:22] Speaker 01:
And that actually includes your little picture with the green in it.

[00:40:27] Speaker 00:
Yes, Your Honor, that's correct.

[00:40:28] Speaker 00:
And again, that picture explains what one of skill in the art would have understood those terms to mean when reading the border reference.

[00:40:36] Speaker 00:
So Border expressly discloses it.

[00:40:38] Speaker 00:
It's explained by our expert testimony, which the Board specifically credited.

[00:40:42] Speaker 00:
And that expert testimony, you don't have to take his word for it.

[00:40:46] Speaker 00:
He provides additional evidence of what one of Skill in the Art would have understood.

[00:40:50] Speaker 00:
And Your Honor, just to briefly go back to your question earlier, there are two additional types of registration that Border discloses that are even more complex than this homography.

[00:41:01] Speaker 00:
So in paragraphs 42 and 48 of Border,

[00:41:05] Speaker 00:
border discloses feature-based registration and in paragraph... Right, but the board didn't rely on 48 or 42, did it?

[00:41:15] Speaker 00:
That's correct, Your Honor.

[00:41:16] Speaker 00:
The board citations to paragraph 38 are sufficient to affirm the board's decision here because homography is sufficiently complex to perform this point of view transformation.

[00:41:27] Speaker 00:
But to the extent that, you know, for example, occlusions

[00:41:32] Speaker 00:
should be addressed more thoroughly or the court views paragraph 38 as insufficient, there are additional pieces of evidence that Apple cited in its petition at appendix page 136 and Dr. Cassart discussed in his opening declaration in paragraph 112 which of course Apple cited in its petition and those would be additional options for disclosing this point of view transformation.

[00:41:58] Speaker 04:
Any more questions for Ms.

[00:42:00] Speaker 04:
Oliver?

[00:42:01] Speaker 04:
This is a good opportunity to explore these complex aspects.

[00:42:08] Speaker 01:
Nothing more for me.

[00:42:10] Speaker 01:
Thank you.

[00:42:12] Speaker 01:
Okay.

[00:42:12] Speaker 01:
I'm fine, Judge Newman.

[00:42:13] Speaker 04:
All right.

[00:42:14] Speaker 04:
Good.

[00:42:14] Speaker 04:
Okay.

[00:42:16] Speaker 04:
Ms.

[00:42:16] Speaker 04:
Oliver, do you need a last word?

[00:42:17] Speaker 00:
Your Honor, we'll just say that in sum, the obviousness determination from the board is well supported by express disclosures and border

[00:42:25] Speaker 00:
as well as expert testimony that the board specifically credited.

[00:42:29] Speaker 00:
This is enough to affirm based on substantial evidence review, and we respectfully request that the court affirm the board's decision in this case.

[00:42:37] Speaker 00:
Thank you.

[00:42:37] Speaker 04:
Okay.

[00:42:38] Speaker 04:
Thank you.

[00:42:38] Speaker 04:
All right.

[00:42:39] Speaker 04:
Mr. Gray, I see you have your rebuttal time.

[00:42:43] Speaker 02:
Thank you, Your Honor.

[00:42:43] Speaker 02:
So I would like to address just a few points in the time that I have.

[00:42:48] Speaker 02:
First, on the Arthrex issue, what I did hear Ms.

[00:42:51] Speaker 02:
Oliver say is that

[00:42:55] Speaker 02:
If there were removal of an APJ, then the regional circuits reviewing the mixed case would not be bound by this court's opinion in Arthrex.

[00:43:05] Speaker 02:
And I think, Judge Taranto, you may have brought up that it's not an employment case, but the interesting point here is that Arthrex remedy is one of employment law, whether or not they have the protections of Title V. And so what the court essentially did

[00:43:24] Speaker 02:
in that remedy was severed Title V and therefore its jurisdiction to kind of hear those employment remedies again.

[00:43:30] Speaker 02:
And it doesn't change the case that if it's a mixed case, that employment law remedy would go to the regional circuit.

[00:43:38] Speaker 02:
So we don't know necessarily what the precedent would be.

[00:43:42] Speaker 02:
And as Ms.

[00:43:42] Speaker 02:
Oliver said, the Supreme Court might be the only one to answer.

[00:43:45] Speaker 02:
And maybe that is the right answer here as to what the effect of Arthrex is on these very particular facts which are

[00:43:52] Speaker 02:
a bit odd in the way that it's an appointment remedy, and some of the claims might come to this court, some might go to regional circuits, because only the Supreme Court would be able, as a definitive matter, as it will likely in a couple of months, decide this issue as to whether or not APJs are constitutionally appointed, and more importantly, what the proper remedy is, and whether that remedy would be carried out, and how it should be carried out.

[00:44:18] Speaker 02:
Turning to border, I would like to make a few quick points

[00:44:23] Speaker 02:
So the board did say that they agreed that construction did not change the analysis in this case.

[00:44:29] Speaker 02:
And that's at Apex 8.

[00:44:32] Speaker 02:
But when they got to that point, and the first kind of appearance it seems to be is on Apex 22, what the board said wasn't a factual finding as to why the claim construction didn't matter.

[00:44:44] Speaker 02:
They didn't say it doesn't matter because of these facts.

[00:44:47] Speaker 02:
What they said is it doesn't matter because we do not agree with the approach of construing

[00:44:52] Speaker 02:
the point of view limitation.

[00:44:54] Speaker 02:
And so essentially what the board was saying is we don't think that claim construction is an issue here because we don't agree with the claim construction.

[00:45:02] Speaker 02:
And I think that kind of puts the cart before the horse.

[00:45:04] Speaker 02:
If the claim construction is proper and point of view is adopted as Court of Photonics argued on 872 of the record, point of view has two aspects, at least two aspects, the position and the perspective.

[00:45:18] Speaker 02:
And I think turning to page 30 of that

[00:45:20] Speaker 02:
that part of analysis.

[00:45:23] Speaker 03:
Councilor, at the end of the day, aren't we in an area that's decided by substantial evidence?

[00:45:29] Speaker 02:
It would be, Your Honor, if it were purely an evidentiary matter, but we believe that at its heart is a quantum destruction matter, as it was kind of presented fairly in the blue region, our opinion, that we talked about the shape.

[00:45:40] Speaker 02:
And the reason why border didn't disclose it is because it didn't disclose the shapes and occlusions.

[00:45:45] Speaker 02:
Occlusions are just one of those perspective aspects of POV.

[00:45:48] Speaker 02:
the POV, the point of view construction should be camera angle, and that camera angle accounts for position and also perspective.

[00:45:56] Speaker 02:
And if we turn to Apple's expert's declaration of paragraph 114 that Judge Sharonto described as potentially their most powerful evidence, that image that's on APEX 652 is the same one that appears in the red brief at page 30.

[00:46:13] Speaker 02:
If you look at the image labeled B,

[00:46:17] Speaker 02:
where it has the X0 and the X1, in those little frames, if you're looking at that, those dots are what they're moving.

[00:46:25] Speaker 02:
That's the scale and transformation that they're talking about.

[00:46:28] Speaker 02:
Those dots are in a different position in each of those elements.

[00:46:33] Speaker 02:
And that position is the only factual finding that's in the board's record here on either border or doctor, or

[00:46:44] Speaker 02:
Apple Jackbird's opinion here on paragraph 114, which Apple does say in its red brief at page 29, it's, quote, not necessary.

[00:46:53] Speaker 02:
But again, the point here is that it's position only, and the proper construction should be position and perspective.

[00:46:59] Speaker 02:
I see my time has expired, so we'll rest on the briefs unless there's any other questions.

[00:47:03] Speaker 04:
All right, any more questions for Mr. Garza?

[00:47:06] Speaker 01:
No, not for me.

[00:47:09] Speaker 04:
Okay, thanks.

[00:47:10] Speaker 04:
Thanks to both counsel.

[00:47:11] Speaker 04:
The case was well presented.

[00:47:13] Speaker 04:
It's taken under submission.