[00:00:00] Speaker 01: Our next case this morning is number 21-12-59, Figure Fun LLC versus Lego Systems. [00:00:09] Speaker 00: Mr. Weinblatt. [00:00:12] Speaker 00: Would you prefer me to stay on or off while we're speaking? [00:00:15] Speaker 01: Off please. [00:00:16] Speaker 01: I'm too hard to hear. [00:00:26] Speaker 00: Good morning, Your Honors. [00:00:27] Speaker 00: May it please the Court? [00:00:28] Speaker 00: Claim 9 of the 276 patent is explicit. [00:00:32] Speaker 00: The information reader has an upward-facing recess, such that the token with built-in IC chip is fitted into the recess. [00:00:38] Speaker 00: Yet, the PTAB interpreted this claim element to mean the figure with built-in IC chip is fitted into the recess. [00:00:46] Speaker 00: That's an APPX 49. [00:00:47] Speaker 00: The PTAB was wrong. [00:00:49] Speaker 00: Claim 9 also recites, quote, a token with built-in IC chip, quote, [00:00:54] Speaker 00: And, quote, an action figure is attached to the token with built-in IC chip in a detachable manner, end quote. [00:00:59] Speaker 00: Token and IC chip are separate plane elements as are token and action figure. [00:01:04] Speaker 00: They cannot mean the same thing. [00:01:06] Speaker 00: Indeed, the PTAB rule, the term token does not include an action figure, and that's at APPX 12. [00:01:12] Speaker 04: So how do you define token? [00:01:14] Speaker 00: We define token. [00:01:23] Speaker 00: as a disc-like shaped item required to begin play of the game. [00:01:27] Speaker 04: Play it again. [00:01:28] Speaker 00: A disc-like shaped item required to begin play of the game. [00:01:33] Speaker 00: I can give you numerous citations for that, but it's also found in the briefing. [00:01:40] Speaker 04: So what is it about the claim language that would exclude a base fitting into the recess along with the token? [00:01:54] Speaker 00: So the claim language says the token with built-in IC chip is fitted into the recess. [00:02:01] Speaker 00: That's an APPX 79 at column 28, lines 12 to 15. [00:02:07] Speaker 00: Neither the figure nor the base of the figure is in the recess. [00:02:14] Speaker 00: In other words, the recess is sized to fit the token. [00:02:17] Speaker 00: Also, when looking at the specification, there is no disclosure in the 276 patent that describes anything other than the token with built-in IC chip fitting into the recess. [00:02:31] Speaker 00: It is wrong to broaden the claims beyond the specifications description. [00:02:34] Speaker 00: That's the Federal Circuit's own case in TF3 Limited versus Trey Milano. [00:02:40] Speaker 04: If you look at... So let's go back to my question. [00:02:44] Speaker 04: So you're saying that just because it refers to the token [00:02:47] Speaker 04: that that is enough to exclude anything along with the token? [00:02:53] Speaker 00: Because it says, is fitted into the recess and fitted in the plain and ordinary meaning is shaped for a precise fit? [00:03:09] Speaker 00: Yes, it's only the token with both an IC chip that is fitted into the recess, or that is engaged in the recess. [00:03:23] Speaker 00: Petitioner argued that White discloses an upward-facing recess such that the figure with built-in IC chip is fitted into the recess. [00:03:32] Speaker 00: That's at APPX 358 to 359. [00:03:33] Speaker 00: Then Lee is used by the T-tab to make White's tag detachable, which means there is a detachable IC chip incorporated into a portion of the base of White's figure. [00:03:44] Speaker 00: There is no token. [00:03:46] Speaker 00: But even though the combination of White and Lee fails to disclose a token with built-in IC chip, [00:03:52] Speaker 00: An information reader including an upward-facing recess that decides to fit the token with built-in IC chip and an action figure is attached to the token with built-in IC chip in a detachable manner, the PTAB still invalidated claim nine based on the combination. [00:04:07] Speaker 00: The PTAB erred and should be reversed. [00:04:18] Speaker 00: Now, the petitioner, or can I just refer to them as Lego in this appeal, because it's Lego and Warner Brothers, they argued that looking at figure 3B, that according to them, it shows that the base of the figure is inserted into the recess. [00:04:32] Speaker 00: That is a misreading of the specification. [00:04:36] Speaker 00: If you were to look at APPX 72, a column 14, lines 38 to 45, [00:04:44] Speaker 00: It says, in addition, a protrusion 19B for token positioning is provided at a portion of the peripheral rim of each recess 19. [00:04:52] Speaker 00: The token with built-in IC chip is placed in the recess so that this protrusion 19B is engaged with the notch 30A provided in the token with built-in IC chip. [00:05:04] Speaker 00: The language is unambiguous. [00:05:06] Speaker 00: The protrusion 19B is engaged with the notch in the token, not with the base of the action figure as LEGO postures. [00:05:16] Speaker 04: But don't, so essentially there are three elements and why are they not disclosed by the combination that the board relied on, White and Lee? [00:05:27] Speaker 00: So for White there is a tag that even Lego identifies the tag is an IC chip. [00:05:36] Speaker 00: The claims require a token [00:05:40] Speaker 00: and an IC chip. [00:05:42] Speaker 00: They're two separate elements, and you can see that in figure 2A. [00:05:49] Speaker 00: And if you turn to figure 2A, representative 31 is the IC chip, and in the figure, it's rectangular. [00:05:58] Speaker 00: If that rectangle were a circle, that would be Lee transducer 64. [00:06:04] Speaker 00: Even Lee doesn't have a token, and the PTAB expressly found [00:06:09] Speaker 00: that Lego never argued that Lee discloses a token. [00:06:14] Speaker 00: That's at APPX 35. [00:06:20] Speaker 00: So if you were to combine White and Lee, you have a figure. [00:06:24] Speaker 00: Now that you have this tag in the base of the figure, that becomes removable. [00:06:29] Speaker 00: But it's only in a portion of the figure. [00:06:33] Speaker 00: And if you look at figure one, at APPX 206, [00:06:38] Speaker 00: You'll see that the recess portion holds the entire figure. [00:06:43] Speaker 00: Six is the reader for the tag five. [00:06:47] Speaker 00: So White has an entire base going into a recess. [00:06:52] Speaker 00: Lee says make the tag removable, but that doesn't change that it's only White's base that goes into the recess. [00:07:00] Speaker 00: It is not just a token with an IC chip. [00:07:03] Speaker 00: In fact, there is no token. [00:07:04] Speaker 00: All you have when you combine White and Lee is a removable IC chip. [00:07:09] Speaker 00: is missing an element. [00:07:20] Speaker 00: So if you look at what the p-tab rules, when the p-tab held that a token cannot be an action figure, and you turn to white, you have this character or figure, you have a figure four, and you have a base, which is 4a. [00:07:39] Speaker 00: there is no token. [00:07:40] Speaker 00: So if you were to say that the tag. [00:07:42] Speaker 04: But the board didn't simply say you combined the two prior art figures, and that's the end of the day. [00:07:51] Speaker 04: I mean, they actually said you would modify the tag in light of Lee, right? [00:07:58] Speaker 00: So the problem with that is there is nothing, there's no record evidence that says making whites tag five. [00:08:06] Speaker 00: turns into a token because there's a whole separate step. [00:08:09] Speaker 00: You have to take that IC chip and you have to put it into a separate piece of plastic which is a token that's then fitted into a base of the figure. [00:08:22] Speaker 00: So if you were to [00:08:25] Speaker 00: Look at what the PTAB did. [00:08:26] Speaker 00: They said all of a sudden you have an IC chip that comes off. [00:08:29] Speaker 00: It miraculously turns into a token. [00:08:31] Speaker 00: But that's not true. [00:08:32] Speaker 00: Think of a RAM chip that's in memory. [00:08:34] Speaker 00: You can pop that RAM chip off of the board. [00:08:37] Speaker 00: That's not a token. [00:08:38] Speaker 00: That's just a RAM chip. [00:08:39] Speaker 00: That's what white's tag is. [00:08:41] Speaker 00: It's a chip. [00:08:42] Speaker 00: It's not a token. [00:08:44] Speaker 00: It's not a game piece. [00:08:45] Speaker 00: It's just a chip. [00:08:46] Speaker 00: And then if you use [00:08:48] Speaker 00: LEGO's construction of a token being a game piece, you still have a problem because you only have an IC chip. [00:08:54] Speaker 00: And according to the claim with LEGO's construction, you have a game piece including an IC chip. [00:09:00] Speaker 00: So again, it's two separate elements, token and IC chip. [00:09:04] Speaker 00: The whole record in front of the T-tab just tells you that. [00:09:09] Speaker 00: It doesn't say anything about how White and Lee can be combined to make a token. [00:09:37] Speaker 00: As the Court is aware, in the NRA Magnum Oil Tools International, 829 F3, 1364, the Court ruled the Board must base its decision on arguments that were advanced by a party in which the opposing party was given a chance to respond. [00:09:57] Speaker 00: nothing in the record before the PTAB that evidences or that even argues that the tag of white, when becoming removable, like Lee's Transducer, would then be put into a token. [00:10:14] Speaker 00: It's not there. [00:10:15] Speaker 00: The PTAB on its own made that argument, and that was wrong. [00:10:19] Speaker 00: The PTAB should be reversed. [00:10:21] Speaker 00: And if your honors have no further questions right now, I'd like to reserve the rest of my time for rebuttal. [00:10:26] Speaker 01: Thank you, Mr. Serretta. [00:10:37] Speaker 03: Thank you, Your Honors, and may it please the Court. [00:10:40] Speaker 03: On the 276 patent, it's really you have two aspects that are combined. [00:10:54] Speaker 03: which has a base figure 4A, and then a tag that's in the 4A fitted into the recess. [00:11:08] Speaker 03: That almost gets all the way there in terms of the obvious disappointing, but then it has to be combined with Lee. [00:11:15] Speaker 03: And Lee brings in the detachability of the transducer. [00:11:18] Speaker 03: So what the board held was that White combined with Lee [00:11:24] Speaker 03: renders the claim obvious because you would take white, detachability in light of Lee, and that is the finding. [00:11:33] Speaker 04: Is your friend on the other side right when he argues that the board expressly said that the token wouldn't include an action figure, but then based its obviousness analysis on the fact that it could include an action figure? [00:11:50] Speaker 03: I don't think that's quite right. [00:11:52] Speaker 03: The board did say that token in its claim construction said that token and action figure would not be included within token. [00:12:00] Speaker 03: But what it held was that white, which has the figure and then the tag 5 that fits into the recess. [00:12:07] Speaker 03: And then when you take Lee's detachability element and combine those two things together, well then you have, as modified by Lee, the token, the detachable token. [00:12:19] Speaker 03: is a fairly straightforward analysis we submit. [00:12:22] Speaker 03: It's also not the case on the claim construction argument. [00:12:26] Speaker 02: Where's the token in White or Lee? [00:12:30] Speaker 03: The token would be tag five of White [00:12:35] Speaker 03: isn't that five a chip that's not merely a chip it's it's a tag uh... and when it's but it's attached to the base figure which is then attached to the figure that five includes the ship but is not only that's it's not merely a chip it's it's a tag and it's reduced certainly only a chip which the transducer only is not [00:12:59] Speaker 03: I don't think it's merely a chip, but just to be very clear, Your Honor, it's the transducer for the 276. [00:13:06] Speaker 02: it's we're only relying on that for that i understand that i'm just trying to get it it seems to me your friend is arguing that there are three things and white only has two it has a chip and a figure but it has no token and i take your position is that the tag is the token that includes the chip exactly right the tag as the tag as modified when it's detachable in light of the becomes the token and that is what the board held but the tag [00:13:35] Speaker 04: is just a chip. [00:13:37] Speaker 04: You agree with that, right? [00:13:39] Speaker 04: You keep using that term tag, but there's nothing else to it, right? [00:13:43] Speaker 03: Well, it also has the base figure with it, and those elements are all there once the... Well, the base figure is attached to the tag. [00:13:57] Speaker 04: Right, the base figure is... The tag is just an IC chip, right? [00:14:01] Speaker 03: The tag consists of an IC chip. [00:14:03] Speaker 03: I don't think it's merely an IC chip. [00:14:05] Speaker 04: So what else is it? [00:14:07] Speaker 01: If you look at page 18 of the board's decision, and appendix 18, there's figure one of a white, right? [00:14:20] Speaker 01: Right. [00:14:21] Speaker 01: So five is the chip, and 4A is the tag? [00:14:27] Speaker 03: Right. [00:14:28] Speaker 03: Five is the tag. [00:14:31] Speaker 03: 4A is the base. [00:14:36] Speaker 01: And the base is the token? [00:14:40] Speaker 03: Well, the base includes the token. [00:14:43] Speaker 02: is the base the token with chip tag attached? [00:14:49] Speaker 03: I think you could certainly see the base as a token. [00:14:52] Speaker 03: The entire thing, once attached, becomes a token. [00:14:55] Speaker 03: We've focused on tag five as the token because we just don't see any significant difference. [00:15:01] Speaker 02: I mean, isn't it significant if tag five is only a chip? [00:15:06] Speaker 02: Like an actual chip that you plug in because the patent requires a chip that goes inside of a token. [00:15:13] Speaker 03: Right. [00:15:14] Speaker 03: We just think that all of the elements are there as the board found. [00:15:17] Speaker 03: You have the base, you have the tag. [00:15:21] Speaker 03: It would have been obvious in light of White and Lee to have the token. [00:15:24] Speaker 03: Once the figure is removed, that is the token. [00:15:28] Speaker 03: The tag 5 is the token. [00:15:30] Speaker 03: It consists mostly of an IC chip that may be true. [00:15:35] Speaker 03: but it also serves as a token. [00:15:38] Speaker 03: Another way of looking at this is the claim construction. [00:15:42] Speaker 02: You seem to want to brush over the fact that token and chip are defined differently in the patent, but it seems to me that there might be some reasons for having a chip embedded in a token, particularly if it's going to be detachable. [00:15:57] Speaker 02: so that it won't get damaged or the like if you're moving it from game piece to game piece. [00:16:06] Speaker 02: So why, again, where's the token in any of this prior art? [00:16:11] Speaker 03: Well, I do think that the tag five, when it's detachable, is a token. [00:16:15] Speaker 03: I recognize, Your Honor, is concerned about that only being the IC chip. [00:16:19] Speaker 02: We should know what it is or it isn't. [00:16:21] Speaker 02: Is the teaching in white that tag five is just the chip, or is it something beyond a chip? [00:16:29] Speaker 03: uh... know that the that's why it goes on to the information reader that's the and is an icy chip i recognize that what i'm saying is that the it that is a to think it would have been obvious to transform a chip into a token no i think i'm saying something slightly different it would have been obvious to transform a chip into a token but it's also as modified in light of lee it is a token uh... what it eighteen [00:16:58] Speaker 03: that shows figure one from from white this recess uh... receives not just chip or eight correct you know so why isn't the base i think the basic it easily fits within the concept of the of the token the board in the field in the in to uh... construct token other than to say that it's not limited to a disk like shaped and certainly the base portion could could [00:17:28] Speaker 02: could be conceived as a token once the figure is removed in light of the token is not the figure the token is not the figure that the figure becomes detached and now we have it is the problem it seems to me that uh... i'm a little curious as to why you're dancing around this argument that the base [00:17:44] Speaker 02: is, which includes the chip, is the token here. [00:17:48] Speaker 02: But is that not the argument you made to the board and not the argument the board relied on? [00:17:52] Speaker 03: Oh, no. [00:17:53] Speaker 03: I think the board, as I say, the board didn't define, didn't feel it was necessary to get into the construction of token other than to say that it doesn't include the action figure. [00:18:05] Speaker 03: It is not limited to the disk-like shape. [00:18:09] Speaker 03: So certainly, I don't think the board went into a lot of detail. [00:18:13] Speaker 03: But I think our briefs, we mostly say tag five becomes the token. [00:18:19] Speaker 03: But certainly, you could say the base portion also becomes the token. [00:18:22] Speaker 03: It seems like that's two completely different arguments. [00:18:24] Speaker 03: Not two completely different arguments, I don't think. [00:18:26] Speaker 02: Can you point me to where the base portion was identified as the token once the chip was attached, or where you argue that to the board? [00:18:37] Speaker 03: Well, certainly the argument to the board is that... Well, I don't think I can give you an explicit reference to base portion being the token in so many words. [00:18:49] Speaker 03: I do think that the general argument made is that you have the detachability element of Lee, and then the tag five with the base portion [00:19:00] Speaker 03: which is on the base portion becomes the token. [00:19:02] Speaker 03: I do think tag five can be the token, that's how the board conceived of it, and I think that's certainly supported by substantial evidence. [00:19:12] Speaker 03: I do want to focus briefly on the claim construction, because I think it is related. [00:19:20] Speaker 03: The token, [00:19:28] Speaker 03: My colleague's argument regarding claim construction suggests that there's an exclusivity to that in the claim, only a token can be fitted into the recess and not anything else, not including the base portion. [00:19:47] Speaker 03: And that, I don't think, is the broadest reasonable construction of this claim. [00:19:52] Speaker 03: You can have both the base portion and the tag [00:19:59] Speaker 03: And nothing is excluded in the claim construction in that regard. [00:20:05] Speaker 03: I also want to spend a few minutes talking about the motivation to combine. [00:20:19] Speaker 03: Because once you have the motivation to combine, [00:20:28] Speaker 01: Claim 8 of the 377, unless my colleagues have further questions about the 276. [00:20:34] Speaker 03: Sure, I'd be happy to move over to Claim 8. [00:20:37] Speaker 03: On the cross appeal, we think the board got almost everything right on the 377 patent. [00:20:44] Speaker 03: The board found that Claim 1, the independent claim, was obvious in view of Cotoli and other prior art [00:20:55] Speaker 03: Its sole error, we submit, was on claim eight. [00:21:00] Speaker 01: But it's true on claim eight, isn't it, that the chip identifies the figure rather than the token? [00:21:12] Speaker 01: I'm sorry, could you repeat that? [00:21:13] Speaker 01: I didn't hear you. [00:21:14] Speaker 01: That in Lee, I mean in White, the chip identifies the figure rather than the token, right? [00:21:26] Speaker 03: In Coteau, there is not merely a reference to just the figure. [00:21:40] Speaker 03: But you have to also add in Lee. [00:21:45] Speaker 03: And Lee is very important in this regard, because contrary to what the board found, [00:21:49] Speaker 03: saying that it identifies a figure, not a token, it also expressly identifies the identity of the transducer. [00:21:58] Speaker 03: And when you take the transducer element, combined with the identity from Coteau, those two elements combine to render it obvious, Your Honor. [00:22:14] Speaker 01: So the identification feature [00:22:16] Speaker 01: is coming from Lee and not Coteau? [00:22:23] Speaker 03: Both, Your Honor. [00:22:23] Speaker 03: Lee discloses the elements of claim eight because Lee expressly discloses the transducers create a signal that indicates the identity of the transducer. [00:22:37] Speaker 03: And then Coteau similarly discloses that a computer may use the signal to identify a figure. [00:22:44] Speaker 03: And then Lee, together with Coteau, [00:22:46] Speaker 03: establishes that the identification code. [00:22:49] Speaker 01: Did the board discuss whether the identification of the token can be found in Lee? [00:22:56] Speaker 03: It held that it could not. [00:22:57] Speaker 03: It said that it identifies a figure, not a token. [00:23:00] Speaker 03: But the basic error on that was failing to recognize that Lee also has the identity of the transducer. [00:23:07] Speaker 03: Also has? [00:23:09] Speaker 03: expressly states that it identifies the transducer. [00:23:14] Speaker 03: And then once you recognize that it identifies the transducer, it follows that it identifies the token. [00:23:20] Speaker 02: Because the traducer is the key part of the touchable token, right? [00:23:26] Speaker 02: Do you argue that to the board? [00:23:28] Speaker 03: Yes, Your Honor, that was preserved. [00:23:30] Speaker 03: And I think that the forfeiture argument is just too technical under this court's precedence. [00:23:38] Speaker 03: It's true that if you looked at the point heading under claim eight, you would not find there the specific reliance on this, fortunately. [00:23:46] Speaker 03: But it's in claim one, which is the independent claim. [00:23:50] Speaker 03: It's recognized and argued by all sides. [00:23:53] Speaker 03: And it's then [00:23:55] Speaker 03: It's been fully briefed and Coteau and Lee are addressed by the board. [00:23:59] Speaker 03: So I think that would be a too rigid approach to forfeiture under this court's cases. [00:24:05] Speaker 01: So where is it that you argue to the board that Lee has the token identification featured? [00:24:15] Speaker 03: So it's in claim one. [00:24:16] Speaker 03: I can get you an express reference. [00:24:25] Speaker 03: So the petition itself expressly discusses the portions of the lead that describes the transducers creating a signal that indicates the identity of the transducer. [00:24:36] Speaker 03: And I think we have references on page 7. [00:24:38] Speaker 04: The petition doesn't address that in connection with claim 8 of the 377, does it? [00:24:42] Speaker 03: It's true that it's addressing that in connection with claim 1. [00:24:46] Speaker 03: But we think that's enough to put the board on notice, particularly since it was fully briefed by all sides. [00:24:51] Speaker 03: Claim 1 is the independent claim. [00:24:53] Speaker 02: Did claim one require an ID code? [00:24:58] Speaker 02: I'm sorry, say that again. [00:24:59] Speaker 02: Did claim one require the ID code? [00:25:02] Speaker 03: Claim one was the independent claim regarding the [00:25:06] Speaker 03: the token itself with IC chip. [00:25:11] Speaker 03: It is claim 8 that is about the ID code, but it's also in the expert reports we have numerous references, and I recognize that these are not under a separate point heading under claim 8, but we have numerous references to the expert declarations, to the petition itself, and we think that's [00:25:29] Speaker 03: enough to preserve the point. [00:25:30] Speaker 01: Look at pages 52 and 53 of the board decision here, 25, 40, and 41 at the bottom where we talk about claim eight. [00:25:42] Speaker 01: And at first it talks about Coteau only, but then on the following page it says disclosure in Coteau and Lee. [00:25:57] Speaker 03: That is exactly right, Your Honor. [00:25:59] Speaker 01: What are these three figures here? [00:26:02] Speaker 01: Are they from Patel or Lee on page 2541? [00:26:14] Speaker 03: I don't have 2541 in front of me, but... You don't have the joint appendix in front of you? [00:26:19] Speaker 03: I do have it right here. [00:26:20] Speaker 03: I can grab it. [00:26:23] Speaker 02: Might be helpful. [00:26:41] Speaker 03: So you want 2541 you're on? [00:26:44] Speaker 01: Yeah. [00:26:45] Speaker 01: This is related to claim eight and it discusses three figures there. [00:26:50] Speaker 01: 3A, 3B, and 6. [00:26:52] Speaker 01: And my question is, are those figures from Coteau or Lee or both? [00:26:59] Speaker 03: These are from Coteau here. [00:27:02] Speaker 01: These three figures are from Coteau. [00:27:05] Speaker 03: On 2541 itself, I believe those are from Coteau. [00:27:09] Speaker 01: And as I say, the specific problem is that she didn't really indicate here that you were relying on Lee for this feature. [00:27:20] Speaker 03: as i say it's true that in the section that specifically is arguing claim eight it's not there but i but given that claim one is independent given that there are numerous references to this argument throughout the papers we do think the board was on notice of this i see him into my bottle time i just thought i don't understand this point about claim one because the element the board specifically found lacking is not in claim one and you didn't mention lee with regard to that and connection to the claim [00:27:48] Speaker 02: it did require. [00:27:49] Speaker 02: So how can the board be on notice of something that may have been mentioned on a claim that it wasn't relevant to? [00:27:56] Speaker 02: I mean, you're asking them to do your work for you, and haven't we said repeatedly? [00:28:00] Speaker 02: I mean, I think you're right. [00:28:02] Speaker 02: Lee shows this, but if you didn't argue it and the board found otherwise, why should we save you on this point? [00:28:09] Speaker 03: Well, it's a question of preservation. [00:28:11] Speaker 03: And I think, as I say, we've cited numerous references, albeit in different sections of the petition, also in the expert declarations. [00:28:20] Speaker 03: And I do think it was recognized certainly by the parties that this was an issue and that it was properly preserved. [00:28:26] Speaker 01: Well, where did the patentee recognize that it was an issue? [00:28:31] Speaker 01: as to whether Lee showed this? [00:28:34] Speaker 03: Well, certainly the broad claim of Coteau and Lee and claimate was preserved. [00:28:38] Speaker 03: But did the patentees say they're arguing that Lee shows this feature? [00:28:44] Speaker 03: I think there was recognition on all sides. [00:28:46] Speaker 03: As I say, on claimate itself, I don't think it was squarely joined. [00:28:52] Speaker 03: OK. [00:28:52] Speaker 03: But I do think it was properly preserved, given the many references to the argument throughout the papers. [00:28:58] Speaker 03: Thank you very much. [00:28:59] Speaker 03: OK. [00:29:00] Speaker 03: Thank you. [00:29:02] Speaker 01: Do you agree that Lee shows this feature in the 377? [00:29:22] Speaker 00: I do not agree that Lee shows what is claimed in claim eight and the reason why is [00:29:31] Speaker 00: In Lee, while there is a code identifying the transducer, that same code is used to identify the figure as well. [00:29:43] Speaker 00: And in claim eight, you have game initial data that includes two pieces of information. [00:29:50] Speaker 00: One is character information, and then in claim eight, it also includes an ID code that only identifies the token. [00:30:00] Speaker 00: And that's a big difference. [00:30:01] Speaker 02: Can I just ask you though, and I don't want to get into an argument about whether the transducer is a token or not, because that's what we talked about. [00:30:09] Speaker 02: Let's just assume that the transducer is a token. [00:30:11] Speaker 02: If it's detachable, doesn't it, by definition, identify the transducer? [00:30:19] Speaker 02: Otherwise, how would you know when you detach it? [00:30:21] Speaker 02: attach it to a new character, what information it is. [00:30:26] Speaker 00: It's not identifying an ID code of the token. [00:30:30] Speaker 00: Think of the ID code of a token like a serial number. [00:30:33] Speaker 00: So in the situation of Lee, when that transducer is put into a figure, it reads the transducer in the computer, and the computer says, based on that [00:30:44] Speaker 00: signal this is the character, which is different than saying this is the serial number for the token and I have this other information that's stored within the chip itself telling you the character information. [00:30:57] Speaker 02: Okay. [00:30:57] Speaker 00: Now, since we're talking about the 370. [00:30:59] Speaker 02: That's not really what the board said though, right? [00:31:02] Speaker 02: The board just said Coteau doesn't show this and they didn't address this further argument about what Lee shows because it wasn't properly raised. [00:31:12] Speaker 00: So Your Honor, that is true, but that's also not an argument that the petitioner ever made to the TTAB. [00:31:18] Speaker 00: If you look at LEGO's reply to the patent owner's response, the APPX 3137 to 3138, LEGO's argument isn't there. [00:31:26] Speaker 00: And at the oral argument, Figure Fun made the argument about Claim 8 requiring both the token ID code, in other words, the ID code that identifies just the token, as well as that being separate from the character information. [00:31:41] Speaker 00: And that's at APPX 738, line 15 to APPX 741, line 11, and APPX 744, line 15 to 16. [00:31:50] Speaker 00: And most importantly, the panel then asked LEGO to rebut the patent owner's arguments at APPX 763, lines 1 to 6, and LEGO didn't. [00:32:02] Speaker 00: So the arguments that you're hearing in this appeal were not made or preserved at the PTAB. [00:32:09] Speaker 00: I'd like to quickly turn back to the 276 patent for a minute. [00:32:13] Speaker 00: What you heard opposing counsel state is, quote, you have the base. [00:32:18] Speaker 00: You have the tag. [00:32:21] Speaker 00: Sorry. [00:32:22] Speaker 00: So you have the token. [00:32:22] Speaker 00: So you have the base. [00:32:24] Speaker 01: So before we go on here, on 43 in the oral argument, this is 739 of the appendix. [00:32:37] Speaker 01: under Line 7, it says they state, this is your argument, I guess, right? [00:32:42] Speaker 01: Levy, and I suppose that's a typo for Lee, right? [00:32:49] Speaker 00: You're on ABVX 738? [00:32:50] Speaker 00: 739. [00:33:04] Speaker 00: Let me look at that. [00:33:05] Speaker 01: Is Levy a typo for Lee? [00:33:06] Speaker 00: Probably not because they relied on multiple references at that point. [00:33:10] Speaker 00: Was Levy one of them? [00:33:11] Speaker 01: Yes. [00:33:16] Speaker 01: They weren't relying on Levy for the identification code, were they? [00:33:20] Speaker 00: No, they were not. [00:33:22] Speaker 00: It's an APX 740, line eight. [00:33:26] Speaker 00: So you're right. [00:33:27] Speaker 00: It may have been a misspeak of the person pretending at the key tab because on the next page, APX 740, [00:33:32] Speaker 00: lines 8 through 12. [00:33:34] Speaker 01: This seems to be addressing the argument that we've just been talking about. [00:34:03] Speaker 00: Well, that's the same argument that's being made right now, is that having a code identify the figure is not the same as a code identifying the token, as in claim eight. [00:34:14] Speaker 02: Are you? [00:34:15] Speaker 02: I'm a little unclear, because Levy has talked about two in this. [00:34:19] Speaker 02: And at the bottom of page 740, it references Levy and Lee in the same sentence, and says, I've already talked about Lee. [00:34:27] Speaker 02: It's about identifying a baseball player. [00:34:30] Speaker 02: And in Lee, there's no identification of a character at all. [00:34:35] Speaker 00: So what happened was Lego tried to combine multiple pieces of prior. [00:34:39] Speaker 02: No, I understand. [00:34:40] Speaker 02: But does that clarify whether the Levy reference on 739 was a mistake for Lee or these are being discussed? [00:34:51] Speaker 00: No. [00:34:51] Speaker 00: It wasn't a mistake. [00:34:52] Speaker 00: So it was not a mistake because it identifies the baseball player. [00:34:55] Speaker 00: So that's different. [00:34:56] Speaker 01: Well, they weren't relying. [00:34:57] Speaker 01: You just said they weren't relying on Levy for the identification. [00:35:01] Speaker 00: Well, so we have to realize this. [00:35:03] Speaker 00: In the PTAB, there was multiple pieces of prior that LEGO used. [00:35:06] Speaker 00: The PTAB rejected them. [00:35:07] Speaker 00: On this appeal, LEGO is only challenging Coteau and Levy. [00:35:10] Speaker 01: Please answer my question. [00:35:12] Speaker 01: You said a minute ago they weren't relying on Levy for the identification cup. [00:35:17] Speaker 00: That was incorrect. [00:35:18] Speaker 00: I was referring to, in this appeal, they're not relying on Levy. [00:35:22] Speaker 00: At the PTAB, they did. [00:35:26] Speaker 01: All right, go ahead. [00:35:32] Speaker 00: So going to the 276 patent for a moment. [00:35:37] Speaker 02: Can I just ask you, if we just assume that the board has looked at this and determined that the combination of white and the Lee show that the tag in white combined with Lee's detachable stuff is enough to teach a detachable token, why isn't there substantial evidence supporting that as disclosing all the elements of your claim? [00:36:02] Speaker 02: Is it just because your view is that the tag is only a chip and not a token containing a chip? [00:36:10] Speaker 00: Well, first of all, LEGO did argue that the tag is only an IC chip. [00:36:14] Speaker 00: That's at APX 358 to 359. [00:36:19] Speaker 00: They did not argue that it was anything other than an IC chip. [00:36:22] Speaker 00: For Lee's transducer, Lego just argued it's a transducer. [00:36:26] Speaker 00: It didn't argue that it was anything more. [00:36:28] Speaker 00: And if you look at Lee, there's a figure showing the circuitry of the transducer, which is it's a chip. [00:36:34] Speaker 04: So what circuitry is in the token? [00:36:38] Speaker 00: So the thing about the token is it's a piece of plastic. [00:36:42] Speaker 00: in a shape, it's a three-dimensional shape, and embedded inside of it is the chip. [00:36:49] Speaker 00: So if you want to say that that chip is Lee's transducer, that's fine, but you still need the plastic that the transducer is embedded in. [00:36:56] Speaker 00: You still need the token. [00:36:58] Speaker 01: So their problem is they didn't mention that it was composed of plastic. [00:37:02] Speaker 00: Well, that is a problem. [00:37:04] Speaker 00: The elements claim it's explicit. [00:37:07] Speaker 00: You can't read out a claim and just say, well, here's a chip. [00:37:09] Speaker 00: If I take this chip and stick it in a base of a figure, it now becomes a token. [00:37:13] Speaker 00: You still have to do a separate step, even in manufacturing. [00:37:16] Speaker 01: White in the base and white isn't the chip in plastic? [00:37:20] Speaker 00: So in white, that base is part of the figure. [00:37:24] Speaker 00: You can't remove it. [00:37:25] Speaker 01: So that's why if you look at... That's where they looked to Lee to find the detachability. [00:37:31] Speaker 01: But again... I'm saying in the base in white, the chip is enclosed in plastic, isn't it? [00:37:41] Speaker 00: The chip is enclosed in plastic. [00:37:43] Speaker 00: But in that instance, you have a problem because you have to have a detachable token. [00:37:50] Speaker 01: So if you look at white... But that's not the issue we were talking about. [00:37:53] Speaker 01: Detachability comes from a leak. [00:37:56] Speaker 00: But you're just removing a chip. [00:37:57] Speaker 00: You'd have to reconstruct white and make that entire, you'd have to have the base be detachable. [00:38:05] Speaker 00: And not only would that base have to be detachable, you would then need it so that when it's fitted into the recess. [00:38:10] Speaker 01: Is taking the chip out of the plastic and combining it? [00:38:16] Speaker 00: If you're taking the chip out of the plastic, it's still a chip. [00:38:18] Speaker 00: So I'm gonna go along with your hypothetical, where you have this chip that takes up a portion of the base in white, and you make that detachable. [00:38:28] Speaker 00: And in your honor's view, let's say that that chip is now a token. [00:38:32] Speaker 00: You still have a problem with the claim because the entire figure's base is put into a recess. [00:38:38] Speaker 00: It is not just the token, and that element's also missing. [00:38:44] Speaker 00: And I also disagree that just removing a chip miraculously becomes a token. [00:38:48] Speaker 00: In manufacturing, if you're making an IC chip, you just don't suddenly say this chip is a token. [00:38:53] Speaker 00: It's a separate manufacturing process to then embed it in a piece of plastic. [00:38:56] Speaker 04: In white, the whole base goes into the recess. [00:38:59] Speaker 04: That's correct. [00:39:01] Speaker 00: The whole base does. [00:39:05] Speaker 00: The recess is not sized to only fit the tag. [00:39:12] Speaker 01: Yeah, but your argument before the board was that the figure was going into the base. [00:39:16] Speaker 01: You weren't arguing that there was a difference between the chip portion and the base portion and white. [00:39:24] Speaker 00: Because that base is part of the figure. [00:39:25] Speaker 00: It's the same thing. [00:39:27] Speaker 00: It's connected. [00:39:28] Speaker 00: It's sort of like saying when you're standing up and you're a person, are your feet separate from you? [00:39:31] Speaker 00: No, they're part of you. [00:39:33] Speaker 00: It's the same thing here. [00:39:35] Speaker 00: The base of the figure, it's the figure. [00:39:38] Speaker 00: Just like if you look at the figure... I think we're out of time. [00:39:42] Speaker 01: Thank you. [00:39:46] Speaker 01: Thank both counsel. [00:39:47] Speaker 01: The case is submitted. [00:39:49] Speaker 01: Was that your honor? [00:39:50] Speaker 01: The case is submitted. [00:39:51] Speaker 01: Thank you, your honor. [00:39:58] Speaker 01: We're done. [00:40:00] Speaker 01: Thank you.