[00:00:00] Speaker 04:
20-1699, Unilock the Apple.

[00:00:05] Speaker 04:
Before the clock starts running, I just want to give counsel a heads up.

[00:00:10] Speaker 04:
Mr. Quiddy, you've asked for six minutes.

[00:00:13] Speaker 04:
So at nine minutes, the tone is going to chime.

[00:00:18] Speaker 04:
And I'll let you know, in case you're deep into answering a question, don't notice it.

[00:00:24] Speaker 04:
But any time after that, you're going to be eating up your rebuttal time.

[00:00:30] Speaker 04:
Ms.

[00:00:31] Speaker 04:
Coelho and Mr. Sauert, you know, you've got that 15 minutes.

[00:00:37] Speaker 04:
You can do with it as you please, but at the end of the 15, when that tone chimes, somebody's going to have to wrap up, okay?

[00:00:48] Speaker 04:
Everybody understand?

[00:00:52] Speaker 02:
Yes, Your Honor.

[00:00:52] Speaker 02:
This is Mr. Coeddie.

[00:00:53] Speaker 02:
Thank you for the clarification.

[00:00:55] Speaker 04:
Okay.

[00:00:56] Speaker 04:
Ms.

[00:00:56] Speaker 04:
Coelho and Mr. Sauert.

[00:00:59] Speaker 00:
Yes, I understand.

[00:01:00] Speaker 00:
Thank you, Your Honor.

[00:01:02] Speaker 01:
Okay.

[00:01:02] Speaker 01:
This is Mr. Sallward.

[00:01:03] Speaker 01:
I understand as well.

[00:01:05] Speaker 04:
Okay, thanks.

[00:01:06] Speaker 04:
Let's get the clock running and get going.

[00:01:09] Speaker 02:
May it please the court?

[00:01:11] Speaker 02:
Good morning.

[00:01:12] Speaker 02:
Brian Coyote for the Ethnic Law Group on behalf of Uniloc.

[00:01:16] Speaker 02:
The board erred in construing the term glitches to encompass the errors described in McMahon, and I want to raise three brief points.

[00:01:23] Speaker 02:
I'm first talking about the 1699 case.

[00:01:26] Speaker 04:
Mr. Coyote.

[00:01:28] Speaker 04:
Yes?

[00:01:28] Speaker 04:
Judge Wallach.

[00:01:30] Speaker 04:
You're going to need to listen for when the judges talk, okay?

[00:01:34] Speaker 02:
Okay.

[00:01:35] Speaker 04:
Okay.

[00:01:36] Speaker 04:
I have a few questions given the short amount of time that you've allotted yourself.

[00:01:42] Speaker 04:
I want to get going on them.

[00:01:44] Speaker 04:
On page 17 of the red brief, Apple says, quote, there's no implicit or explicit requirement that glitches be limited to accurate motion sensor data.

[00:01:55] Speaker 04:
Do you agree?

[00:01:56] Speaker 04:
This is a yes or no.

[00:01:57] Speaker 04:
Do you agree with that assertion?

[00:02:01] Speaker 02:
Let me turn to that, Your Honor.

[00:02:11] Speaker 02:
No, Your Honor.

[00:02:12] Speaker 02:
I mean, this is where they're talking about the indicative could be... I think the patentee was very clear.

[00:02:17] Speaker 02:
The motion that is... You're going to need to listen.

[00:02:22] Speaker 04:
Okay, that was a no.

[00:02:24] Speaker 04:
So since you said no, where in the patent does it explicitly or implicitly require

[00:02:31] Speaker 04:
the glitches be limited to accurate motion sensor data.

[00:02:34] Speaker 04:
Give me the language.

[00:02:36] Speaker 02:
It doesn't explicitly say, but as your honor is probably aware, the CAFE law doesn't require an explicit redefinition.

[00:02:44] Speaker 02:
Lexography doesn't call it something explicit.

[00:02:46] Speaker 02:
That's in something like the trustees of Columbia University, which is a site 80.

[00:02:51] Speaker 04:
Give me the language.

[00:02:53] Speaker 04:
Give me the implicit language in the patent.

[00:02:58] Speaker 02:
OK.

[00:02:58] Speaker 02:
The claim language itself first talks about

[00:03:02] Speaker 02:
motion data, that is obviously motion data, the first instance.

[00:03:07] Speaker 02:
The motion data includes one or more glitches, removing the glitches.

[00:03:11] Speaker 02:
So syntactically, if the clang language is motion data, it must be something motion.

[00:03:16] Speaker 02:
To address your specific point about whether it's accurate, that's addressed in

[00:03:24] Speaker 02:
column one, line 61 to 63.

[00:03:27] Speaker 02:
It talks about whether the device is woken up from the state if the motion data loss points to the motion being real as opposed to mere jostles or glitch.

[00:03:38] Speaker 02:
Again, the qualification real is showing that everything that's being discussed in that is relating to motion.

[00:03:45] Speaker 02:
So it's things that are accurate.

[00:03:47] Speaker 02:
It's things that they're thinking that are actually there.

[00:03:50] Speaker 02:
that as opposed to something that's beyond the range of the operational range of the sensor.

[00:03:58] Speaker 04:
On pages 13 to 17 of the blue brief, without citing any legal authority in those pages, you argue that the board erred in construing a glitch to encompass McMahon's error.

[00:04:18] Speaker 04:
Do you have any legal authority for that?

[00:04:20] Speaker 04:
It seems to me it's just pure attorney argument.

[00:04:24] Speaker 02:
I think the legal error is what I referred to earlier.

[00:04:26] Speaker 02:
This is, what the board said, I think we're referring to is, this is on Appendix 8, none of the passages of the patent owner's sites actually refers, they use that word, to jostle bump motion data as a glitch.

[00:04:41] Speaker 02:
The legal error, Your Honor, is that they were looking for an explicit

[00:04:46] Speaker 02:
statement saying, you know, a glitch is that.

[00:04:50] Speaker 02:
But again, the trustees of Columbia University case, which I referred to, which further records not cited in our brief, but I think it's on point, talks about a patent applicant need not expressly state, my invention does not include X to indicate his exclusion of X because the patent piece choice of preferred embodiments can shed light on the intended scope of the claim.

[00:05:10] Speaker 02:
And that's what we're arguing here.

[00:05:12] Speaker 02:
You can look at the preferred embodiments

[00:05:14] Speaker 02:
which are discussed in column 161 to 63 and column 461 to 62, to understand that the glitch is in the context of real motion.

[00:05:28] Speaker 02:
I mean, it's something that's in contrast to real motion and that jostle, bump, and glitch are all interchangeable.

[00:05:36] Speaker 02:
Kind of it's the currency of motion that's describing that.

[00:05:43] Speaker 04:
I want to move you along.

[00:05:44] Speaker 04:
On page 17 of the blue brief, again without providing a legal standard, you assert, the board misconstrued the scope of substitute claim 23, however, in finding that Pasolini and Fabio teach a power logic to move the device from the inactive state to inactive state upon detection of change in the dominant axis, which is the axis experiencing the largest effect of gravity.

[00:06:11] Speaker 04:
Isn't that a claim construction argument?

[00:06:17] Speaker 02:
It is, Your Honor, and that's what we're saying.

[00:06:18] Speaker 02:
We're saying there's a claim construction argument in error in both of the 1699 and the 1801 matter.

[00:06:27] Speaker 04:
Decline to make a claim construction argument before the PTAB.

[00:06:32] Speaker 02:
I'm sorry, Your Honor.

[00:06:34] Speaker 02:
I think maybe I might have been in my line, but I didn't hear your full question.

[00:06:36] Speaker 02:
Would you repeat that one more time?

[00:06:38] Speaker 04:
You bet.

[00:06:38] Speaker 04:
Did you not decline?

[00:06:40] Speaker 04:
to make a claim construction argument before the PTAB?

[00:06:45] Speaker 02:
We did, Your Honor.

[00:06:46] Speaker 02:
We took a plain and ordinary meeting.

[00:06:48] Speaker 02:
But as Your Honor is probably aware, that often the board, nevertheless, in application of its analysis, implies a construction.

[00:06:59] Speaker 02:
And that's what happened here.

[00:07:00] Speaker 02:
So we did take that position.

[00:07:03] Speaker 02:
But in the application, they ended up doing construction, which we are now disputing.

[00:07:11] Speaker 04:
Okay, let me just try one shot at that.

[00:07:15] Speaker 04:
In the green brief on page 47, the PTO says that your, quote, claim construction argument for a change in the dominant axis was not clearly articulated before the board.

[00:07:29] Speaker 04:
Show me in the record where you clearly and specifically argued it.

[00:07:35] Speaker 02:
Okay, at Appendix 2584, we stated

[00:07:41] Speaker 02:
Petitioner leaves undisputed unilux reasoning as to why merely detecting a change along the vertical axis does not disclose what the original claim language explicitly requires.

[00:07:52] Speaker 02:
Also in 2530 to 31, I'm sorry, of the appendix, we also said merely detecting a change along the vertical axis does not disclose what the claim language explicitly requires, i.e.

[00:08:07] Speaker 02:
detection of a change in the dominant axis itself.

[00:08:10] Speaker 02:
as expressly defined in the claim language.

[00:08:13] Speaker 02:
I mean, part of this issue arose because we made certain arguments, and as we laid out in our brief, the board kind of just gave short-term, they kind of mischaracterized what our arguments are, and then we're left with, you know, we were pointing to where we tried to preserve them, and we think we did.

[00:08:31] Speaker 04:
Okay, go ahead.

[00:08:35] Speaker 02:
Okay.

[00:08:35] Speaker 03:
Well, Mr. Coyne, this is Judge Chen.

[00:08:39] Speaker 03:
You know, how would you define the ordinary meaning of glitch?

[00:08:46] Speaker 02:
Well, as you're probably aware, the parties below agreed that there's actually a special meaning, like psychography here.

[00:08:55] Speaker 03:
Well, let's start with what do you think is the ordinary, regular meaning of glitch?

[00:09:02] Speaker 03:
A malfunction in the system.

[00:09:06] Speaker 02:
but uh... i you know that i don't know what i thought it really part of that your honor because you know i hear you could make trick the movie the matrix i i think you have a picture of a part of that and i really like in the matrix that right

[00:09:18] Speaker 02:
Right, but actually, if we're going to talk about plain order and meaning, and I will engage your honor, you know, there must be something, you know, that's why, if glitch were just to mean error, then why would they choose such an unusual word as glitch?

[00:09:32] Speaker 02:
I mean, they're really, the scrivener here was really trying to capture what we're saying as this particular motion that's outside the range of normal human operation.

[00:09:45] Speaker 02:
Errors are very common.

[00:09:47] Speaker 03:
What about column 3, line 36?

[00:09:49] Speaker 03:
The glitches generally are indicative that the accelerometer or sensor is malfunctioning.

[00:09:56] Speaker 02:
Hang on, Your Honor.

[00:10:00] Speaker 03:
That's column 3, line 36.

[00:10:03] Speaker 03:
Then there's column 3, line 28.

[00:10:06] Speaker 03:
In one embodiment, the glitch correcting logic 235 discards any abnormal accelerometer readings.

[00:10:14] Speaker 03:
Okay, Your Honor, let me just address... And then, you know, there's another one at line 23 of the same column 3.

[00:10:20] Speaker 03:
In one embodiment, glitch correcting logic 235 further may be used to discard non-human motions.

[00:10:27] Speaker 03:
Okay.

[00:10:28] Speaker 03:
So this all feels really right in line with the ordinary meaning of glitch.

[00:10:37] Speaker 02:
Your Honor, if I could respond, I'll try to just briefly respond, but the...

[00:10:43] Speaker 02:
In all of those instances your honor referred to, they're talking about a special circumstance where there are multiple glitches, multiple sensing of movement being outside the normal range.

[00:10:58] Speaker 02:
And then, for instance, if you were to have one sense of it being outside the normal range, like the device gets dropped from a desk

[00:11:07] Speaker 02:
and it goes something outside the normal range of a human picking it up, that would be something that's just one glitch.

[00:11:13] Speaker 02:
What they're talking about here is multiple glitches.

[00:11:15] Speaker 02:
You get like 20 glitches in one second, 20 instances where you're thinking the thing is being dropped, then it might be indicative of a sensory malfunction.

[00:11:25] Speaker 03:
But that does no way... You point me to something that says that?

[00:11:27] Speaker 03:
I don't read that.

[00:11:29] Speaker 03:
I mean... I read that in... Read the word malfunctioning.

[00:11:32] Speaker 02:
No, I read that if you look at, if you look at, respectfully, if you look at the paragraph that you're referring to, such as like column 3, lines 28 to 36, is talking about where there are multiple glitches.

[00:11:51] Speaker 02:
I'm sorry, I'm sorry, this is a column starting at 15, the prior paragraph, column 3, 13 to 26, is talking about multiple glitches

[00:12:02] Speaker 02:
and then having that then create an issue where it might be a malfunction.

[00:12:06] Speaker 02:
It's not talking about one glitch.

[00:12:08] Speaker 02:
So that's a special circumstance where there are multiple glitches.

[00:12:13] Speaker 02:
For the remainder, I will try to preserve the remainder of my time for rebuttal at this point.

[00:12:20] Speaker 04:
Go ahead.

[00:12:22] Speaker 04:
Let me hear from the Apple East.

[00:12:28] Speaker 00:
Your Honor, may it please the court.

[00:12:30] Speaker 00:
Abby Colella on behalf of Apple.

[00:12:33] Speaker 00:
As the board correctly recognized, the claim term glitch must at least encompass the erroneous sensor reading.

[00:12:39] Speaker 00:
As noted, the specification consistently equates glitches with erroneous readings.

[00:12:43] Speaker 00:
It provides, for instance, that glitches are abnormal data, that glitches indicate a sensor malfunction, and that glitches occur when a sensor reading is unlikely, if not impossible, to be correct.

[00:12:54] Speaker 00:
And that's not just something that occurs when there's multiple glitches.

[00:12:59] Speaker 00:
If glitches are accurate sensor readings of things like jostles and bumps, as Unilux construction would require, then there's no amount of glitches that would signal a problem with the sensor.

[00:13:09] Speaker 00:
It would just accurately indicate that the user is jostling their phone a lot.

[00:13:14] Speaker 00:
In light of those disclosures, Unilux narrow construction is not viable.

[00:13:18] Speaker 00:
To be clear, glitches may include accurate measurements.

[00:13:22] Speaker 00:
The board's construction allows for that, but there's nothing in the specification that could possibly limit glitches to that category, as Unalak suggests.

[00:13:30] Speaker 00:
Unless your honors have any questions, we ask that this court affirm the decision of the board.

[00:13:35] Speaker 00:
Thank you.

[00:13:37] Speaker 04:
Thank you.

[00:13:38] Speaker 04:
Let me hear from the government.

[00:13:42] Speaker 01:
Good morning.

[00:13:42] Speaker 01:
May it please the court?

[00:13:44] Speaker 01:
Peter Sallert on behalf of the USPTO Director.

[00:13:49] Speaker 01:
In each of these appeals, Unilock's request to vacate the board's findings of obviousness turns on the construction of a single claim term that is subject to de novo review by this court.

[00:14:00] Speaker 01:
The sole issue in the 1699 appeal is the construction of the term glitches as found in the second limitation of representative claim one of the 646 patent.

[00:14:11] Speaker 01:
The key passages that both define

[00:14:15] Speaker 01:
The term glitches in the specification consistent with the board's construction are at column 3, lines 13 to 16, and column 6, lines 35 to 38.

[00:14:28] Speaker 01:
And other multiple passages, as has already been pointed out by Judge Chen and by Council for Apple, support that construction.

[00:14:38] Speaker 01:
And there's simply nothing in the claim language

[00:14:42] Speaker 01:
that contains the term glitches to limit that term to something less than was fully described and disclosed in the specification.

[00:14:53] Speaker 01:
The sole issue in the 1801 appeal is the construction of the claim limitation, a change in the dominant axis, as found in proposed amended Claim 23, as has already been raised in questioning by Judge Wallach

[00:15:08] Speaker 01:
We do not, the government does not believe that this argument was adequately raised or preserved before the board.

[00:15:16] Speaker 01:
And even if it were, it's simply directly counter to the disclosure of the specification.

[00:15:23] Speaker 01:
At appendix page 74, column 4, starting at line 12 and going to line 24, is the passage that directly contradicts the construction that Uniloc advocates here.

[00:15:37] Speaker 01:
In the preceding portion at the bottom of column 3 starting at line 38 and going to the top of column 4, the 646 patent describes a number of different ways that accelerations may be tracked and used to assign a dominant axis.

[00:15:56] Speaker 01:
Then moving to the passage I referred to beginning at column 4 line 12, the 646 patent discloses that

[00:16:06] Speaker 01:
If the prior and current dominant axes are the same, the computation logic 255 determines if the long average has changed by more than a predetermined threshold.

[00:16:18] Speaker 01:
One embodiment, when the change in the dominant axis, there we have the very precise limitation as that issue here, is larger than the threshold value, the computation logic 255 communicates with the power logic 265

[00:16:36] Speaker 01:
and the device state logic 270 to power up the device and restore the last active state.

[00:16:43] Speaker 01:
If the change in the dominant axis, that's the same claim limitation again, it is not larger than the threshold value the device is maintained in the idle state.

[00:16:53] Speaker 01:
Again, that entire portion of the specification is premised on the fact that the current and prior dominant axes are identical.

[00:17:01] Speaker 01:
And with that condition in place, it describes a change in the magnitude of acceleration along the same dominant axis as a change in the dominant axis as claimed.

[00:17:14] Speaker 01:
This is also consistent with the discussion of Figure 5 and the specification.

[00:17:18] Speaker 01:
Figure 5 is a flow chart for determining whether to wake up a device from an idle state.

[00:17:24] Speaker 01:
Figure 5 is described on Appendix 75 and Figure 5 itself appears on Appendix page 70.

[00:17:32] Speaker 01:
Figure 5 shows that if either the direction of the dominant axis has changed at Block 535 or if the axis remains the same and the magnitude of acceleration along that axis exceeds a threshold at Block 540, then the device will be woken up from the idle state at Block 545.

[00:17:55] Speaker 01:
Once again, there's nothing in the written description of the 646 patent or the claim language itself to support importing a negative limitation to a claim term that has been described more broadly in the specification.

[00:18:06] Speaker 01:
The board correctly construed a change in the dominant axis to allow a change in magnitude of acceleration along the same dominant axis or a change to the direction of the dominant axis.

[00:18:20] Speaker 01:
Because Unilock's only arguments for overturning the board's decisions turn on improper claim construction arguments, we respectfully request that the court affirm the board's decisions.

[00:18:33] Speaker 01:
If there are no questions from the panel, I would yield the remainder of my time.

[00:18:39] Speaker 04:
Well, thank you very much.

[00:18:42] Speaker 04:
I believe, Mr. Coyne, that you have some rebuttal time.

[00:18:49] Speaker 02:
Thank you, Your Honor.

[00:18:50] Speaker 02:
I want to turn to the 1801 case.

[00:18:55] Speaker 02:
The claim language of 23 recites detection of a change.

[00:18:59] Speaker 03:
Mr. Coyote, before I forget, the Arthrex challenges, those are gone now, right, in light of your letter from a couple weeks ago?

[00:19:11] Speaker 03:
Yes, Your Honor.

[00:19:12] Speaker 03:
We're just focused on the claim construction issues of

[00:19:16] Speaker 03:
change in dominant axis and glitch.

[00:19:19] Speaker 03:
Is that right?

[00:19:20] Speaker 02:
That's correct, Your Honor.

[00:19:21] Speaker 02:
We are no longer seeking remand under Arthrex.

[00:19:24] Speaker 02:
Okay.

[00:19:25] Speaker 02:
Thanks.

[00:19:25] Speaker 02:
Please continue.

[00:19:27] Speaker 02:
Okay.

[00:19:27] Speaker 02:
Thank you.

[00:19:29] Speaker 02:
So turning to the 1801 appeal, the claim recites detection of a change in the dominant axis, which is the axis experiencing the largest effect of gravity.

[00:19:39] Speaker 02:
An axis itself doesn't have any value.

[00:19:41] Speaker 02:
It's just an orientation.

[00:19:42] Speaker 02:
Moreover, claim 23 doesn't recite change in the magnitude or change in the value, but the dominant axis.

[00:19:49] Speaker 02:
It's reciting change in the dominant axis itself.

[00:19:52] Speaker 02:
And there's no doubt that the claim language itself means a change in the axis because the claim language starts out starting with the which language, which is the axis experiencing largest effective gravity, is telling you what that change means.

[00:20:06] Speaker 02:
This comports with the written description, which distinguishes between two things.

[00:20:11] Speaker 02:
First, a change in the dominant axis of the device and the level of acceleration beyond a threshold.

[00:20:18] Speaker 02:
That's discussed at the blue brief at page 17 where we cite the appendix.

[00:20:23] Speaker 03:
Mr. Coyle, before you run out of time, I think you need to answer for claim seven.

[00:20:28] Speaker 03:
Because if we just assume for the moment that we need to construe this term, a change in the dominant axis,

[00:20:34] Speaker 03:
consistently throughout all of the claims, and we see a dependent claim defining a change in dominant access in a particular way to include a change in acceleration along the dominant access.

[00:20:51] Speaker 03:
Why doesn't that require an affirmance of the board's decision here?

[00:20:58] Speaker 02:
Yeah, thank you, Your Honor, for that question.

[00:21:00] Speaker 02:
I wasn't planning to hit that.

[00:21:01] Speaker 02:
I think the difference is the director is arguing that claim seven is reciting a genus species relationship.

[00:21:09] Speaker 02:
So they're arguing that wherein the change in the dominant axis comprises and then therefore the change in acceleration along dominant axis is kind of a subset of that.

[00:21:20] Speaker 02:
We think properly what Red is saying, not saying that, it's saying wherein the change in the dominant axis comprises, so you already have a change in the axis itself,

[00:21:30] Speaker 02:
And then there's also, coincident with that, a change in the acceleration along the dominant axis.

[00:21:36] Speaker 02:
It's not saying, okay, one subset of the change in the axis language comprises, okay, it has to be the subset of change in the acceleration of the dominant axis acceleration.

[00:21:48] Speaker 02:
So that's our, I think that probably puts a finer point on where the dispute is there.

[00:21:56] Speaker 02:
Okay.

[00:21:58] Speaker 02:
Let me just turn to,

[00:22:00] Speaker 02:
So again, there are two different concepts.

[00:22:04] Speaker 02:
I think that's beyond dispute.

[00:22:05] Speaker 02:
There's a change in the dominant axis of the device and the change in the level of acceleration beyond a threshold.

[00:22:12] Speaker 02:
The detailed description goes into discussing, we noted in our blue brief at 17 and 18, the change in the dominant axis itself.

[00:22:20] Speaker 02:
We talked about a new axis.

[00:22:24] Speaker 02:
And there's ample description of that, a new axis being selected.

[00:22:29] Speaker 02:
The portion that the director just referenced, this is in their brief at page 31.

[00:22:37] Speaker 02:
They cited it to a block quote of columns 412, line 12 to 24.

[00:22:43] Speaker 02:
That part, I'll just finish up.

[00:22:45] Speaker 02:
Yep.

[00:22:45] Speaker 02:
That part actually supports the second embodiment.

[00:22:49] Speaker 02:
And so it actually helps us.

[00:22:52] Speaker 02:
It's a disclosed but unclaimed embodiment with respect to claim 23.

[00:22:55] Speaker 02:
Thank you, Your Honor.

[00:22:56] Speaker 02:
We appreciate consideration of our appeal.

[00:23:00] Speaker 04:
Thank you.

[00:23:00] Speaker 04:
The matter will stand submitted.