[00:00:01] Speaker 02:
Our next case is in-depth, geophysical versus conical Phillips, 2021, 1013.

[00:00:09] Speaker 02:
Mr. Jensen, we're ready when you are.

[00:00:17] Speaker ?:
Thank you.

[00:00:19] Speaker 03:
May it please the court.

[00:00:28] Speaker 03:
Although in-depth claim charts comply with the board's guidelines, the board declared the claim charts effective because it erroneously believed that the petition referred to an overview of Zortes under Section 8A2 rather than the claim chart containing the Zortes disclosures.

[00:00:44] Speaker 04:
Can I clarify something up front?

[00:00:46] Speaker 04:
Yes, you are.

[00:00:48] Speaker 04:
The claim chart that you're referring to that you thought the board shouldn't have ignored only relates to claims 1 through 9, right?

[00:00:54] Speaker 04:
Correct.

[00:00:55] Speaker 04:
There's nothing in that chart about 10 through 17.

[00:00:58] Speaker 04:
Correct.

[00:01:01] Speaker 03:
Although I will clarify that the claim charts for grounds two and three refer back to the claim chart for claim one with respect to the limitations that are the same within the last step of each claim, independent claim, 110 and 14 that call for reconstructing the way field.

[00:01:19] Speaker 03:
So basically claim

[00:01:21] Speaker 03:
9, I'm sorry, claim 1, the last step refers to reconstructing the weight field from the recovered seismic data.

[00:01:30] Speaker 03:
Independent claims 10 and 14 refer back to the claim chart in claim 1 that has the same last step limitations.

[00:01:39] Speaker 04:
So that's a double leap that you're asking the board to take.

[00:01:42] Speaker 04:
In other words, even if we accept the proposition that the board didn't properly consider the claim chart,

[00:01:47] Speaker 04:
You're then saying, and not only should they have considered the claim chart, but then they should have read whatever was said in the claim chart and figured out how it applies to claims that aren't even discussed.

[00:01:58] Speaker 03:
Well, claim one is the same between the three rounds.

[00:02:02] Speaker 03:
Claims 10 and 14 both have identical last steps as claim one.

[00:02:07] Speaker 03:
And neither the board nor Conoco had any difficulties in cross-referencing where these disclosures were found between the claim tracks.

[00:02:18] Speaker 03:
There was never any difficulty as far as finding the limitations.

[00:02:22] Speaker 03:
The only difficulty expressed was the board's finding these orthosis.

[00:02:25] Speaker 03:
But it's still not in the petition, right?

[00:02:29] Speaker 04:
Pardon?

[00:02:29] Speaker 04:
It's still not in the petition, right?

[00:02:32] Speaker 04:
What's not?

[00:02:32] Speaker 04:
Anything discussing 10 through 14 in the claim

[00:02:37] Speaker 04:
10 through 17 in the claim chart.

[00:02:40] Speaker 03:
Well, the claims, entry claims 10 and 14 refer back to claim one in the same claim chart.

[00:02:48] Speaker 03:
I get it.

[00:02:48] Speaker 04:
But we started out with you admitting that there's nothing in the claim chart that references 10 through 17.

[00:02:56] Speaker 04:
For ground one, correct.

[00:02:57] Speaker 03:
OK.

[00:03:00] Speaker 03:
Based on this undisputed error, the board concluded that the claim charts do not identify where any element of claims 1, 10, or 14.

[00:03:08] Speaker 03:
are found in Zortes citing 37 CFR section 42.104 B4 at appendix 32.

[00:03:14] Speaker 01:
It seemed to me that the board considered not only the claim charts in your petition, but also your narrative section, which presented a motivation to combine theory.

[00:03:27] Speaker 01:
The rationale.

[00:03:28] Speaker 01:
The rationale.

[00:03:29] Speaker 01:
Yes, under the section.

[00:03:30] Speaker 01:
So considered all of that and concluded that this is

[00:03:37] Speaker 01:
This was just too confusing to really provide adequate notice to the other side and really to the board to understand exactly what is the roadmap of your proposed rejection of the claims.

[00:03:52] Speaker 01:
So I guess to be, I just want to underscore it's not just the claim chart.

[00:03:57] Speaker 01:
It's the claim chart combined with your rationale section.

[00:04:01] Speaker 03:
Exactly.

[00:04:01] Speaker 03:
And I will address that, Your Honor.

[00:04:03] Speaker 03:
That's a good point, because although this error is referred to in the board's analysis for both grounds two and three, the most straightforward basis for reversing and remanding for further analysis is the board's reliance solely on this error for ground three.

[00:04:21] Speaker 03:
The board concluded at appendix 33 through 34 that the rationale for ground three fails to remedy the defects and ambiguities in the claim charts because the petition would still fail to identify where any element of the claim is found in Zortes.

[00:04:37] Speaker 02:
The board thus concluded that- Council has a very famous quote and opinion from the Seventh Circuit.

[00:04:47] Speaker 02:
It reads, judges are not like pigs.

[00:04:50] Speaker 02:
hunting for truffles buried in briefs.

[00:04:54] Speaker 02:
That applies to the TTAB judges, too.

[00:04:58] Speaker 02:
And they have rules which require petitioners to lay out in detail where, in a particular reference, it applies to a particular part of the claim.

[00:05:12] Speaker 03:
And In-depth did exactly that, but it didn't use the claim charts as far as identifying how it intended to rely on each reference.

[00:05:22] Speaker 03:
It used the rationale both for intending and identifying for the statute how it intended to rely on each reference and the reasons for combining the references.

[00:05:34] Speaker 04:
Well, as you say, you don't have to have a claim chart if you are discussing

[00:05:42] Speaker 04:
includes a description of how the claims would be found.

[00:05:47] Speaker 04:
So I can accept the proposition that in your discussion section, there is a fair amount on the question of motivation to combine.

[00:05:56] Speaker 04:
But the board still said, even with considering that, that you didn't do enough to really explain how you were going to read on all of those claims.

[00:06:08] Speaker 03:
Well, the board essentially referred to two

[00:06:12] Speaker 03:
two issues that it had with the rationale.

[00:06:15] Speaker 03:
First, it generally kind of referred to it had a lack of specificity.

[00:06:19] Speaker 03:
And then in the same sentence, same breath, it said, well, it also fails to remedy the defects and ambiguities in the claim charts.

[00:06:29] Speaker 03:
But it never explained why the rationale lacked specificity or fails to remedy this nonexistent defect in the claim chart, other than the erroneous belief that the Zortes disclosures were missing.

[00:06:42] Speaker 03:
And it even went one step further and assumed that the rationale would provide notice of how in-depth intended to rely on each reference.

[00:06:53] Speaker 03:
And that's at appendix 33-34.

[00:06:54] Speaker 01:
I guess for ground two, your petition was offering multiple rationales and combinations, right?

[00:07:05] Speaker 01:
The board pointed that out and said it found that to be a little confusing as to deciphering what your intentions really were.

[00:07:16] Speaker 03:
The analysis there is a little less straightforward than ground three, Your Honor.

[00:07:20] Speaker 03:
The only explanation for ground two, though, is that the rationales contradict each other.

[00:07:27] Speaker 03:
It never explained why.

[00:07:29] Speaker 03:
And as we pointed out in our brief, the rationales are alternative rationales, but they don't contradict each other to the extent that they each require on the same elements in the same references.

[00:07:40] Speaker 03:
And it was very difficult to understand what the board meant by contradictory.

[00:07:45] Speaker 03:
But as far as in-depth reliance on the particular elements from each reference, there's no contradiction there.

[00:07:52] Speaker 04:
But the board's citation to the wrong section in the petition would be

[00:07:59] Speaker 04:
irrelevant if it had an alternative grounds as it was in ground two.

[00:08:03] Speaker 03:
As far as ground two, that error would not be harmful error as it is in ground three, where it relied solely on this missing element, missing Zortes disclosures.

[00:08:15] Speaker 04:
But part of the problem here is that the board's error stemmed from trying to fix your error, right?

[00:08:23] Speaker 03:
No, no.

[00:08:24] Speaker 03:
It completely confused a section of the petition.

[00:08:29] Speaker 03:
It had the right section number, 8A2.

[00:08:34] Speaker 03:
But it thought that that was the overview of Zortes, not the claim chart that it was directed to.

[00:08:39] Speaker 03:
Because if you go to 8A2, it's the claim chart.

[00:08:42] Speaker 03:
It kept referring to the overview, though, which would be understandable as to why it thought there was a lack of specificity and there were no Zortes disclosures.

[00:08:50] Speaker 03:
Because it was thinking the right section, but looking at the wrong section, which is the overview.

[00:09:00] Speaker 04:
So what do you want?

[00:09:02] Speaker 04:
You would say we should remand, vacate and remand so the board can look back at it?

[00:09:07] Speaker 03:
Well, based on that error alone, I think that ground three should be reversed and remanded for the board to consider the disorder test disclosures in the claim chart that it overlooked.

[00:09:19] Speaker 03:
But the board's error doesn't stop there.

[00:09:22] Speaker 03:
Conoco dismisses this error as harmless and argues that for ground three, the rationale conflicts with the claim chart.

[00:09:30] Speaker 03:
regarding Hortson's reconstruction disclosure and doesn't suggest Ortiz was known as a superior method.

[00:09:37] Speaker 03:
Conoco's arguments on this.

[00:09:38] Speaker 04:
But you still have district court proceedings in which you can attack these patents, correct?

[00:09:43] Speaker 04:
You can make these same arguments there, right?

[00:09:47] Speaker 04:
Not based on the estoppel, Your Honor.

[00:09:50] Speaker 04:
But with respect to the issues that the board said were not raised,

[00:09:58] Speaker 03:
I don't believe that we could raise that based on the estoppel.

[00:10:03] Speaker 01:
Maybe because it could have been raised.

[00:10:05] Speaker 03:
Correct.

[00:10:06] Speaker 03:
That's what we'd be facing, I'm sure.

[00:10:10] Speaker 03:
Conoco's arguments on both points are wrong and they were never adopted by the board.

[00:10:14] Speaker 03:
The petition at Appendix 111 does in fact suggest Zortes was known to be a superior reconstruction method because the reconstruction result improves with increasingly less uniform sampling.

[00:10:26] Speaker 03:
Courtson's disclosure in the claim chart at appendix 117 for reconstructing the wave field refers to imaging the data, but does not disclose that it improves with less uniform sampling.

[00:10:37] Speaker 03:
The board refers to the rationale at appendix 33, but ignored the reason supporting the rationale as to why a skilled artisan would have applied Zortez's reconstruction techniques to Courtson, which is stated in appendix 112 as for improving the reconstruction of the wave field in Courtson.

[00:10:55] Speaker 03:
from the recovered seismic data.

[00:10:57] Speaker 03:
The board didn't find any conflict because there is none.

[00:11:00] Speaker 03:
The board did, however, abuse its discretion because it relied on erroneous facts.

[00:11:05] Speaker 03:
It ignored the reason supporting the rationale.

[00:11:07] Speaker 01:
I'm sorry.

[00:11:09] Speaker 01:
Before I lose you, you're at A112.

[00:11:12] Speaker 01:
You're discussing the motivation to combine section of your petition for Coitzen and Suertes.

[00:11:22] Speaker 01:
Is that right?

[00:11:23] Speaker 01:
Is that where you are?

[00:11:24] Speaker 03:
Correct.

[00:11:24] Speaker 03:
It's appendix 112.

[00:11:25] Speaker 01:
Yeah.

[00:11:27] Speaker 01:
And so your rationale to combine these two references comes from the first sentence of that paragraph.

[00:11:37] Speaker 01:
A posita would have been motivated by Courtson to consider known techniques for constructing the wave field in areas where seismic data is acquired using an irregular and non-uniform sampling pattern.

[00:11:48] Speaker 01:
Right?

[00:11:49] Speaker 01:
That's your motivation.

[00:11:51] Speaker 03:
That's part of the motivation.

[00:11:55] Speaker 03:
But what I'd like to direct you to is the appendix in connection with this, appendix 33.

[00:12:01] Speaker 03:
The board refers to this abridged reference of the same appendix 112.

[00:12:17] Speaker 03:
conspicuously missing is what's in the bracket portion at the end of the sentence at the bottom of appendix 33, which is the reason underlying the rationale for combining Zortez's reconstruction techniques with Kortsen's non-uniform sampling.

[00:12:41] Speaker 01:
If that doesn't answer your question, then... Yeah, I'm trying to figure out whether your rationale for combining Coardson and Suárez was just too conclusory that it failed to establish

[00:12:57] Speaker 01:
that these two references would have been combined by it.

[00:13:01] Speaker 03:
Well, we believe it's fairly straightforward that Zortes provides an improved approach for reconstruction that would have improved the reconstruction in Courtson.

[00:13:13] Speaker 03:
But the board never got there.

[00:13:15] Speaker 03:
It omitted the reason, the most significant aspect of the rationale.

[00:13:19] Speaker 01:
Well, what did it omit?

[00:13:24] Speaker 03:
On Appendix 112, the part that was omitted is successfully improving the reconstruction of the wave field from the recovered seismic data.

[00:13:34] Speaker 01:
Where's that in this?

[00:13:38] Speaker 03:
That's at Appendix 112?

[00:13:39] Speaker 01:
Yeah, where on?

[00:13:40] Speaker 03:
The very end of the middle paragraph.

[00:13:46] Speaker 04:
But that just seems to state the conclusion, not why.

[00:13:52] Speaker 03:
Well, the board in appendix 33, the board states correctly that a skilled arson would have reason to apply.

[00:14:12] Speaker 03:
The reason, though, is what's missing.

[00:14:14] Speaker 03:
It's to improve the reconstruction in courts.

[00:14:19] Speaker 04:
Well, all they're doing there is citing your contention.

[00:14:25] Speaker 04:
It's not saying they agree with it.

[00:14:29] Speaker 04:
Pardon me?

[00:14:30] Speaker 04:
All the board's doing at 833 is citing your contention.

[00:14:35] Speaker 04:
There's no statement afterwards like, we agree.

[00:14:39] Speaker 03:
No, there is not.

[00:14:41] Speaker 03:
Their only analysis, their only statement, was back to the error that they overlooked the Zortes disclosures.

[00:14:47] Speaker 03:
They never analyzed those disclosures that they overlooked in the claim chart.

[00:14:52] Speaker 03:
But in response to your question, the why is for improving the reconstruction in Courtson.

[00:15:02] Speaker 03:
So the board here erred in three ways.

[00:15:04] Speaker 01:
Why would a reading of Courtson

[00:15:09] Speaker 01:
reveal a need to do any kind of improvement to reconstruction of a way field?

[00:15:20] Speaker 03:
Well, the courts, it's not cited in the appendix, but our expert testified that it's inherent as far as the disclosure is concerned in the reconstruction technique that courts provides.

[00:15:38] Speaker 03:
However,

[00:15:40] Speaker 03:
There is no requirement that Courtson has to call out a deficiency or need, as stated in Jazz Pharmaceuticals versus Emile Pharmaceuticals at 895 at 1347 at 1336.

[00:15:56] Speaker 03:
The desire to improve what is known is an acceptable motivation.

[00:16:01] Speaker 02:
Counsel, as you may have noted, your red light is on.

[00:16:05] Speaker 02:
We will give you three minutes of the bottle back, but let's hear from Mr. Peterson.

[00:16:10] Speaker 03:
Thank you, Your Honor.

[00:16:33] Speaker 00:
Thank you, Your Honor.

[00:16:33] Speaker 00:
May it please the Court.

[00:16:34] Speaker 00:
It's a true privilege to be back here again in person.

[00:16:39] Speaker 00:
In the appeal, the board did not abuse its discretion in concluding that grounds two and three were insufficiently stated.

[00:16:46] Speaker 00:
And let me start where my friend left off, discussing ground three in the petition.

[00:16:52] Speaker 00:
Because I'd like to call attention to two things.

[00:16:54] Speaker 00:
So first, my friend talked about the need to use the Zuarches reference to improve the reconstruction techniques.

[00:17:02] Speaker 00:
But if you look at the claims, the claims don't require any particular type of reconstruction technique.

[00:17:09] Speaker 00:
The claims simply require reconstructing the wave field using any technique.

[00:17:15] Speaker 00:
And if you look at the claim chart on appendix page 117, my friend's claim chart says that Cordeson already discloses reconstructing the wave field.

[00:17:26] Speaker 00:
So with respect to obviousness.

[00:17:28] Speaker 04:
What about the argument that

[00:17:30] Speaker 04:
Now, if the motivation is there to improve what it is that the prior art is doing or the alternative art is doing, why isn't that good enough?

[00:17:43] Speaker 04:
They certainly, at 872 and 873, have expert testimony or expert declarations saying it would improve that process.

[00:17:52] Speaker 00:
Judge Amali, so first, whether it improves the process or uses an existing technique for reconstructing the waveform,

[00:17:59] Speaker 00:
is simply irrelevant to the challenge to the claims.

[00:18:02] Speaker 00:
Any technique for reconstructing the waveforms is what the claims require.

[00:18:06] Speaker 00:
So that's one confusing point for us about this motivation combined, is we seem to be talking about improving a piece of one prior art that, according to my friend, is already disclosed in the prior art in a way that renders the claim obvious.

[00:18:23] Speaker 00:
And second, I'll point out, as I think the court noted, what's missing here

[00:18:28] Speaker 00:
in the first full paragraph on appendix page 112 is the why.

[00:18:33] Speaker 00:
You have the statement that a person of ordinary skill in the art would have been motivated by Cordeson to consider known techniques for reconstructing the wave field, but what you don't see is any identification of the Cordeson reference.

[00:18:44] Speaker 00:
that explains what would have created this motivation for one to do so.

[00:18:49] Speaker 00:
Maybe it is simply one of skill in the art would have read Cordeson and generally been interested in improving its reconstruction techniques.

[00:18:57] Speaker 00:
Maybe there's some expressed statement in the Cordeson reference.

[00:18:59] Speaker 00:
What we can't tell and what the board couldn't tell from this petition was what was being relied upon.

[00:19:05] Speaker 00:
I think it's also important to look at the carryover paragraph.

[00:19:08] Speaker 00:
from appendix page 111 to 112.

[00:19:12] Speaker 00:
Now, this is discussing the Zvartjez reference.

[00:19:15] Speaker 00:
And what I heard my friend tell you is the only thing that Zvartjez is being relied on is for improving the way of field reconstruction.

[00:19:24] Speaker 00:
But if you look at the top of appendix page 112, the petition is telling us about how the Zvartjez reference

[00:19:31] Speaker 00:
is disclosing that source points could be perturbed in the same manner with a reasonable expectation of successfully improving reconstruction of the wayfield.

[00:19:42] Speaker 00:
So, just again, reading this, the board is looking at it, trying to say, well, hold on, are we relying on Zvartjes for perturbing the source points?

[00:19:51] Speaker 00:
Are we relying on Zvartjes for perturbing the receiver points?

[00:19:56] Speaker 00:
Or are we relying on Zvartjes

[00:19:59] Speaker 00:
for no particular reason for improving a piece of prior art, this reconstruction, that Cordeson already, according to the petition, discloses in a way that would render the claims obvious.

[00:20:10] Speaker 00:
Judge Lori, you talked about hunting for truffles.

[00:20:14] Speaker 00:
And I think that's an excellent analogy here.

[00:20:16] Speaker 00:
And that's why the review is abuse of discretion, because the board receives a lot of petitions.

[00:20:22] Speaker 00:
And I think the board is entrusted to exercise its discretion to decide exactly how much specificity it wants to require of a petitioner.

[00:20:33] Speaker 00:
It's up to the board to decide how much time it wants to spend trying to discern exactly what contribution is relied upon

[00:20:40] Speaker 00:
in the petition and how much clarity it's going to require from petitioners.

[00:20:45] Speaker 00:
Just two additional points before I turn to the cross appeal, unless the court has questions, of course.

[00:20:51] Speaker 01:
Well, I guess my question is, do you think there is a rule or should be a rule that it is impermissible for a petitioner to cite to more than one reference in a claim chart for matching up with a particular claim on the petition?

[00:21:09] Speaker 01:
The board here seemed to criticize this particular petition and the claim charts therein because the petitioner cited to more than one reference as matching up with a given claim limitation.

[00:21:24] Speaker 01:
And so that's making me wonder, should that really be a rule?

[00:21:29] Speaker 01:
Sometimes you will cite, and I've seen plenty of petitions, claim charts

[00:21:35] Speaker 01:
that do cite to more than one reference for matching up with a claim limitation.

[00:21:40] Speaker 01:
And to me, that simply illustrates how closely related the prior art references are and how much the cited prior art references overlap with the claim convention.

[00:21:51] Speaker 01:
So why would it be that there's some, why would it be wrong to cite to more than one reference in a claim chart for a given limitation?

[00:22:04] Speaker 00:
Well, Judge Chen, so first let me say I don't think the board applied that rule in this case to say that you may never cite to more than one reference for a particular limitation in a petition.

[00:22:16] Speaker 00:
I think what you see the board applying is what it stated on appendix page 27, which is that a petition has to provide notice of the specific ground of invalidity

[00:22:28] Speaker 00:
in the petition itself.

[00:22:30] Speaker 00:
Granted, the easiest way of doing that is going to be through a claim chart.

[00:22:33] Speaker 00:
But I don't think the board said, uniformly, you can never have more than one reference listed for a particular limitation, for a particular ground.

[00:22:42] Speaker 00:
I think what the board is saying is simply, you need to provide notice in your petition of exactly what the grounds of invalidity are.

[00:22:50] Speaker 04:
But why weren't those alternative grounds as opposed to contradictory grounds?

[00:22:55] Speaker 04:
That's what your friends are doing.

[00:22:56] Speaker 00:
Well, Judge Amali, we think they were alternative grounds.

[00:22:59] Speaker 00:
The problem is we think there were so many different alternative grounds that neither Conoco nor the board knew which combination that in-depth was actually asserting.

[00:23:09] Speaker 00:
And in fact, if you look at their expert testimony, at his first deposition, you'll see this on appendix page 1878, we asked him, were you actually relying on all three of these references for this limitation?

[00:23:23] Speaker 00:
He said,

[00:23:23] Speaker 00:
Yes, I am.

[00:23:24] Speaker 00:
And we went through each of the limitations in the claim chart.

[00:23:26] Speaker 00:
And every time he said, I'm relying on all three of these references.

[00:23:30] Speaker 00:
And then finally, on appendix page 1892, he admitted, well, look, some of these are actually redundant.

[00:23:37] Speaker 01:
But if you just do an objective reading of the petition itself, and then you look at the motivation to combine rationale section, you can start piecing things together.

[00:23:48] Speaker 01:
Maybe there's an argument that ground two is still confusing.

[00:23:53] Speaker 01:
But ground three seems to be saying, Kordsen has everything except the step of reconstructing the wave field.

[00:24:04] Speaker 01:
That's in Zuartas.

[00:24:06] Speaker 01:
What's wrong with that for purposes of ground three?

[00:24:10] Speaker 01:
Would you agree, at least, that when a claim chart

[00:24:14] Speaker 01:
has multiple references citing as matching up with various claim limitations.

[00:24:22] Speaker 01:
The motivation to combine rationales section of a petition can provide you adequate notice as to what the real proposed combination is.

[00:24:31] Speaker 00:
Yes, Your Honor, I certainly do.

[00:24:33] Speaker 00:
I acknowledge that in the abstract.

[00:24:35] Speaker 00:
I disagree, of course, that that was done here.

[00:24:38] Speaker 00:
And in fact, again, I think this is where their expert's testimony

[00:24:42] Speaker 00:
And their arguments to the board are helpful.

[00:24:45] Speaker 00:
Because when we asked their expert, and he told us, yes, I actually relied on all of these.

[00:24:49] Speaker 01:
That's at the deposition.

[00:24:50] Speaker 01:
That's at the deposition.

[00:24:51] Speaker 01:
That's after the petition has been filed and the institution has been ordered.

[00:24:56] Speaker 01:
I'm just talking about an objective read of the petition itself for ground three, Courtson plus Zuartas.

[00:25:04] Speaker 01:
What's confusing there?

[00:25:05] Speaker 01:
in the Motivation to Combine Rationale paragraph and the proposed combination that I think I can discern pretty reasonably.

[00:25:17] Speaker 00:
Well, Your Honor, I think I explained what confuses me about it.

[00:25:20] Speaker 00:
First, we're reciting aspects of Swartjez in the Motivation to Combine section.

[00:25:24] Speaker 00:
about perturbing source points, about potentially perturbing receiver points that my friend now says are just completely irrelevant and not relied upon.

[00:25:33] Speaker 00:
If that's the case, those shouldn't be in the motivation to combine section.

[00:25:36] Speaker 00:
And second, with appendix page 112, you don't need to rely on a particular technique for reconstructing the waveform to show that these claims are obvious or anticipated.

[00:25:48] Speaker 00:
the technique used to reconstruct the waveform is irrelevant.

[00:25:52] Speaker 00:
Claim 1, if you look at E, simply requires reconstructing the wave field from the recovered data.

[00:25:59] Speaker 01:
There's been no... That answer doesn't help me, though, because we're not trying to shoot for the claimed invention.

[00:26:09] Speaker 01:
We're just trying to ask ourselves, what would a skilled artisan do back in the day at the time of this invention

[00:26:15] Speaker 01:
and the skilled artisan was aware of both Courtson and Zuortes.

[00:26:19] Speaker 01:
The petition is asserting that a skilled artisan would borrow the algorithm from Zuortes to do the way field reconstruction of the collected data that you get from Courtson.

[00:26:34] Speaker 01:
voila, that would be the obvious combination to do.

[00:26:37] Speaker 01:
It just so happens to line up with your claim limitation elements.

[00:26:41] Speaker 01:
So pointing to the claim here doesn't really answer the question of what's wrong with the clarity of the proposed combination of references here from ground three.

[00:26:53] Speaker 00:
Respectfully, Your Honor, I think the claim helps us understand

[00:26:58] Speaker 00:
the grounds, because if Cordeson already teaches Reconstructing the Wave Form, there's no need to bring in the Zvartze's reference at all.

[00:27:08] Speaker 00:
Now maybe, I'm not suggesting the petitioner can't do that.

[00:27:11] Speaker 00:
It's entirely possible that Cordeson anticipated these grounds and that just, or rendered them obvious as a single reference obviousness challenge, but it's at the very least unusual when you say one piece of prior art

[00:27:26] Speaker 00:
discloses everything by itself.

[00:27:28] Speaker 02:
Nonetheless, my ground is... I'd like to hear you address the cross appeal.

[00:27:33] Speaker 00:
Thank you, your honor.

[00:27:34] Speaker 00:
I appreciate that.

[00:27:35] Speaker 00:
With respect to the cross-appeal, there are two separate grounds, two independent errors that we think the board made with respect to ground one.

[00:27:43] Speaker 00:
The first, and we think the most straightforward, is crediting the testimony of Dr. Yilmaz that the Zvartchez reference discloses that the source points must be located within the survey area.

[00:27:56] Speaker 00:
There's only one piece of evidence on this.

[00:27:58] Speaker 00:
That's the declaration of Dr. Yilmaz.

[00:28:00] Speaker 01:
Let's assume for the moment that

[00:28:03] Speaker 01:
There's substantial evidence to support that finding.

[00:28:05] Speaker 01:
Or alternatively, you raised that particular issue too late in time, that the multiple source points have to be in the surveyor.

[00:28:15] Speaker 01:
What about the other argument, which is this more performance of real world steps, particularly directing energy into the ground?

[00:28:27] Speaker 01:
Can you focus on that for me?

[00:28:29] Speaker 00:
Absolutely, Your Honor.

[00:28:30] Speaker 00:
If you look at the Zvartzez reference, Zvartzez is teaching a mathematical reconstruction technique.

[00:28:36] Speaker 00:
In the reference, it illustrates how that reconstruction technique could be applied to synthetic sample computer-generated data.

[00:28:44] Speaker 00:
It's undisputed that in generating this sample survey in Figure 9C, Zorges did not actually direct seismic energy into physical ground, didn't actually place it.

[00:28:54] Speaker 01:
Let's assume that we read the reference as, even though it provides an example using simulated data,

[00:29:01] Speaker 01:
The reference is really devoted to real world applications, i.e.

[00:29:07] Speaker 01:
real world seismic surveys.

[00:29:11] Speaker 01:
And then, why isn't it true that

[00:29:16] Speaker 01:
for Zuartes to have any meaning or value in that context, you actually have to perform a seismic survey to generate the data that you need to apply Zuartes' invented algorithm for reconstructing a wave field.

[00:29:33] Speaker 00:
Your Honor, we don't dispute that.

[00:29:35] Speaker 00:
If the claims simply require, say, using Zvartjez's reconstruction technique and performing a real-world seismic survey of any type, I think there would be very strong arguments that Zvartjez anticipates the claims.

[00:29:48] Speaker 00:
The problem here is that the claims don't simply require performing any real-world seismic survey.

[00:29:55] Speaker 00:
doesn't the board say but what's the point of all of this if that's not what you're going to ultimately do at the end of the day your honor I'm not talking about performing seismic surveys in the abstract what the claim to acquire is a very particular seismic survey with very particular receiver placement and

[00:30:12] Speaker 00:
very particular location of the source points.

[00:30:15] Speaker 00:
So the question is not, does Zvartjes disclose that someone might want to go forth and perform a real-world seismic survey?

[00:30:21] Speaker 00:
There's no question.

[00:30:21] Speaker 00:
The question is, does Zvartjes disclose performing the specific limitations of the 248 patent involving going out into the real world, lining up receivers in a specific pattern, putting source points into a specific pattern?

[00:30:35] Speaker 00:
And Zvartjes never says, you won't find an express disclosure that says,

[00:30:39] Speaker 00:
you, one that's still in the yard, should go forth, look at this sample data that we have, zoom in on it, measure it, and conduct a real-world seismic survey in accordance with this pattern.

[00:30:49] Speaker 01:
My understanding of SWORDES is that it does disclose figures showing you a pattern of receivers that are both non-aligned and non-uniform.

[00:31:00] Speaker 01:
I mean, I suppose we can debate that, but let's assume that it does.

[00:31:05] Speaker 01:
And let's also assume there's substantial evidence for the board's finding that to generate the data that

[00:31:15] Speaker 01:
Zuartas was disclosed as using, it would necessarily have to have originated from multiple source points, not a single source point.

[00:31:24] Speaker 01:
So therefore, all of those limitations that are recited in the claim are actually captured in the Zuartes document.

[00:31:35] Speaker 01:
And so if you've already agreed that Zuartes is absolutely for real world seismic surveys, then why doesn't that end the question?

[00:31:49] Speaker 01:
given that I might conclude that it does teach the arrangement of the receivers and it does teach the use of multiple source points.

[00:31:59] Speaker 00:
Well, I think the source points might actually be the greatest vulnerability with this because to be clear, you don't see an express teaching on the source points.

[00:32:07] Speaker 00:
The only way they make the argument about the multiple source points and their location is by performing some calculations and essentially relying on inherent disclosure.

[00:32:16] Speaker 00:
that the source, Zvartjez necessarily simulated multiple source points.

[00:32:22] Speaker 00:
And Your Honor, the point with anticipation, of course, is that it's not enough to say you could go forth and use Zvartjez in the real world.

[00:32:31] Speaker 00:
Anticipation requires identity.

[00:32:34] Speaker 00:
It requires the metaclan.

[00:32:36] Speaker 04:
So is it your concern that Zvartjez doesn't actually say directing energy

[00:32:44] Speaker 04:
into the ground, or is your concern that it doesn't say exactly where to direct it into the ground?

[00:32:50] Speaker 00:
Much more where, Your Honor.

[00:32:51] Speaker 00:
This is really about the figure 9C arrangement of receivers and then these arrangement of source points that were inherently used in figure 9C.

[00:33:00] Speaker 00:
That's one of what we think of as the flaws in the board's anticipation analysis, is you don't actually see the board going limitation by limitation with these real-world limitations, saying

[00:33:09] Speaker 00:
We think Zorges expressly or inherently discloses deploying physical receivers in a physical survey area where the receivers have this particular lateral spacing, we claim.

[00:33:21] Speaker 01:
Okay, so let me make sure I have in my head what your position is.

[00:33:26] Speaker 01:
You don't take issue with the fact that SWART can reasonably be read as doing mathematical calculations on data collected from a real-world survey.

[00:33:41] Speaker 01:
But your question is, does it disclose the very real-world survey recited in these claims?

[00:33:48] Speaker 01:
But at the same time, any real-world seismic survey would necessarily require you to direct energy into the ground.

[00:33:58] Speaker 00:
That's right, Your Honor.

[00:33:59] Speaker 00:
This isn't about generally at a high level directing energy into the ground.

[00:34:02] Speaker 00:
This is about actually performing a survey modeled on the figure 9C.

[00:34:07] Speaker 04:
So you're saying it's not good enough to disclose non-alignment, for instance, but you have to disclose the precise non-alignment.

[00:34:17] Speaker 00:
Well, that's right.

[00:34:18] Speaker 00:
And that's what the claims cover, is precise non-alignment, particularly the dependent claims, which go into more detail.

[00:34:24] Speaker 04:
So are you walking away from issue one in your cross appeal?

[00:34:27] Speaker 00:
No, Your Honor, I'm not, because the board looked at this at a high level, generally with respect to disclosing.

[00:34:33] Speaker 00:
Our argument really is, with anticipation, you needed to look closely at, is the board teaching directing energy into the ground when you conduct this figure 9C survey?

[00:34:46] Speaker 00:
Again, this is sample data used to illustrate a mathematical algorithm.

[00:34:51] Speaker 00:
The suggestion is that one of skill in the art is going to pour through that sample data

[00:34:54] Speaker 00:
blow it up and without any suggestion in the art say, I think I will just go forth into the real world and conduct a survey that matches this sample data.

[00:35:04] Speaker 04:
There was no ground that relied on Swartje's alone for obviousness, right?

[00:35:10] Speaker 00:
No, there's not.

[00:35:11] Speaker 00:
And I think, look, if this were a single reference obviousness argument, this would be very different.

[00:35:17] Speaker 00:
If the board had found one of skill in the art would have, in light of Figure 9C, found it obvious to arrange in the real world receivers in that pattern,

[00:35:25] Speaker 00:
we'd be making a very different argument here.

[00:35:28] Speaker 00:
This is anticipation.

[00:35:29] Speaker 00:
Anticipation is a high bar.

[00:35:31] Speaker 00:
And I think if you look at the test for anticipation with each of these limitations, you will not find Zorges either expressly or inherently disclosing, performing this 9C survey.

[00:35:42] Speaker 02:
Thank you, counsel.

[00:35:43] Speaker 02:
You have well exceeded your allotted time.

[00:35:46] Speaker 02:
And even though you have a cross appeal, I have no indication here that you wish to save time to rebut

[00:35:54] Speaker 02:
on the cross appeal.

[00:35:56] Speaker 02:
But we'll give Mr. Jensen three minutes.

[00:36:01] Speaker 02:
And if he addresses the cross appeal, then we'll give you two minutes of rebuttal time on the cross appeal.

[00:36:08] Speaker 00:
Thank you, Your Honor.

[00:36:12] Speaker 03:
Thank you, Your Honor.

[00:36:14] Speaker 03:
I just have a couple of points to bring up in regards to the cross appeal.

[00:36:19] Speaker 03:
I think that my friend's argument can be condensed into one

[00:36:23] Speaker 03:
specific issue.

[00:36:24] Speaker 03:
And that's the removal of the perception of the person of ordinary skill in the art from the anticipation test.

[00:36:32] Speaker 03:
What he's asking is a broad ruling that computer simulations cannot anticipate a real world claim, regardless of what one of ordinary skill in the art would understand from a simulation.

[00:36:43] Speaker 03:
But not all.

[00:36:43] Speaker 04:
Didn't he just say that's not what he's arguing?

[00:36:48] Speaker 03:
But if you look at the briefing in this context, in its great brief 10, this is what they're arguing for.

[00:36:56] Speaker 03:
It's a disassociation of what one of ordinary skill and the art would perceive from the simulation to say that all simulations, they can't anticipate a real world client.

[00:37:07] Speaker 03:
But they're not all alike, as demonstrated here.

[00:37:11] Speaker 03:
If you took a flight simulator, for example, and a pilot in training is a person of ordinary skill and the art,

[00:37:17] Speaker 03:
If the claim required the steps for landing a real plane and the simulation required the same steps, wouldn't the pilot understand from the simulation as disclosing how to land a real plane according to the claimed steps?

[00:37:30] Speaker 03:
The fact that a simulation may not have been performed in the real world doesn't detract from what the simulation teaches a person of ordinary skill in the art as suggested by the board at appendix 19 through 20.

[00:37:42] Speaker 03:
And I'll also reiterate that Duertes does

[00:37:45] Speaker 03:
contemplate, actually tested, its reconstruction techniques on field data, meaning that a real survey had to take place to obtain the field data.

[00:37:56] Speaker 03:
That's in appendix 175 and 184.

[00:38:00] Speaker 03:
So even without the evidence of the field data used to test these reconstruction techniques, substantial evidence supports the board's conclusion that one of ordinary skill in the art would have understood Zortes to disclose the survey parameters and reconstruction techniques for an actual survey.

[00:38:16] Speaker 03:
Thank you.

[00:38:18] Speaker 02:
Thank you, Mr. Jensen, Mr. Peterson.

[00:38:21] Speaker 02:
Two minutes on your cross appeal.

[00:38:30] Speaker 00:
I think the difference with my friend's hypothetical is that a pilot landing a plane is actually performing steps, albeit on a computer simulation, that one of skill in the art may recognize would be performed in the real world.

[00:38:43] Speaker 00:
Zvartjez is not listing out, here is how you perform steps for a survey, either on a simulation or on the computer.

[00:38:50] Speaker 00:
It's just providing sample data used to illustrate a mathematical algorithm.

[00:38:54] Speaker 00:
And on this point, particularly with the source placement, I point you to appendix page 2588, that is the deposition of in-depth expert.

[00:39:03] Speaker 00:
We asked him about source placement for Zvartjez, and he said, well, you would need to use the same sources as Zvartjez, but only if you were trying to recreate the same data as Zvartjez.

[00:39:14] Speaker 00:
And why on earth would I ever want to recreate the same data as Zvartjes?

[00:39:17] Speaker 00:
I'm not actually going to get the same response as Zvartjes, so I wouldn't have any incentive to use the same source placement that Zvartjes does.

[00:39:26] Speaker 00:
You see this again, appendix page 2588.

[00:39:29] Speaker 00:
That's their expert's testimony.

[00:39:31] Speaker 00:
Zvartjes simply doesn't say to one of skill in the yard,

[00:39:34] Speaker 00:
It may suggest, generally, you should conduct some type of real-world survey, but what it doesn't say is, one of Still in the Art, you should take our sample data at Figure 9C, and that's the gold standard model for conducting surveys in the real world.

[00:39:48] Speaker 00:
So Art just says, here's some data that we use to apply our algorithm to.

[00:39:52] Speaker 00:
Maybe that data renders it obvious.

[00:39:55] Speaker 00:
to conduct these method steps in the real world, but Zorces doesn't expressly disclose, follow these method steps in the real world, nor does it inherently require doing so.

[00:40:05] Speaker 00:
And also, not only does it inherently require doing so, the Zorces reference itself didn't perform these method steps in the real world.

[00:40:14] Speaker 00:
Unless the panel has further questions.

[00:40:17] Speaker 02:
Thank you.

[00:40:18] Speaker 02:
Thank you, counsel.

[00:40:18] Speaker 02:
We will drill down into this case and take it under submission.