[00:00:00] Speaker 00:
Case for argument is 20-1662, Visa versus Universal Secure Registry.

[00:00:07] Speaker 00:
This is Mr. Argenti, whenever you're ready.

[00:00:11] Speaker 01:
May it please the court, Matt Argenti on behalf of Appellants Visa and Apple.

[00:00:16] Speaker 01:
The board's rejection of our IPR obviousness challenge rests on a single limitation of the claims, what we call element 1.6, which requires the account identifying information is not sent to the provider, such as a merchant,

[00:00:30] Speaker 01:
but is sent to a third party to enable or deny the transaction.

[00:00:34] Speaker 01:
We showed that the Brenner Prior Art Reference discloses this in two ways.

[00:00:38] Speaker 01:
The same two ways disclosed and claimed in the 539 patent.

[00:00:42] Speaker 01:
First, Brenner describes sending account identifying information to a third party shipper to allow delivery without disclosing.

[00:00:50] Speaker 01:
I'll continue.

[00:00:52] Speaker 00:
All right.

[00:00:52] Speaker 01:
Thank you.

[00:00:54] Speaker 01:
First, Brenner describes sending account identifying information to a third party shipper to allow delivery without disclosing the customer's address to the merchant.

[00:01:03] Speaker 01:
Second, Brenner discloses sending account identifying information to a third party bank to verify the customer has sufficient funds for the purchase without providing account information to the merchant.

[00:01:14] Speaker 01:
Either one of those on its own satisfies the claim.

[00:01:18] Speaker 01:
The board was only able to reject both showings by committing numerous errors.

[00:01:23] Speaker 01:
With respect to the shipping aspect of Brenner, the Board erred in construing the claims to exclude third-party shippers and narrowly require financial approval as the claimed enabling of the transaction.

[00:01:35] Speaker 01:
That's completely at odds with dependent claims 4 and 25 that recite that the transaction includes delivery,

[00:01:43] Speaker 00:
Can you clarify, at least from my thinking, this shipper theory that we're talking about?

[00:01:49] Speaker 00:
I mean, the language was whether the shipper could enable or deny the transaction, right?

[00:01:54] Speaker 00:
That's what the query is?

[00:01:57] Speaker 00:
Correct.

[00:01:58] Speaker 00:
And maybe I agree with you that a shipper can refuse to ship something, but it's not clear to me why it necessarily follows that their refusal to ship something equates with denying the transaction.

[00:02:14] Speaker 00:
Is there any evidence that the entity and the provider just give up their approved transaction merely because one shipping company decides not to provide shipping services?

[00:02:24] Speaker 00:
Can't they just find another shipper?

[00:02:27] Speaker 01:
Well, first it's important to note that our position is denial of the transaction is not a required aspect of the claims provided the third party enables the transaction.

[00:02:39] Speaker 01:
The terms are presented in the alternative and as long as the third party

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provides one or the other of those aspects of the claim, the enabling or the denying, then the claim is satisfied.

[00:02:50] Speaker 01:
So a shipper doesn't have to deny the transaction.

[00:02:54] Speaker 00:
Okay.

[00:02:54] Speaker 00:
I appreciate that.

[00:02:55] Speaker 00:
But let's assume we disagree with you on that.

[00:02:58] Speaker 00:
So is there a response to the denial portion of this?

[00:03:02] Speaker 01:
Sure.

[00:03:02] Speaker 01:
Yeah.

[00:03:03] Speaker 01:
The denial is satisfied by a shipper refusing to provide the shipment service that would complete the transaction.

[00:03:13] Speaker 01:
And whether the merchant could turn to an alternative source of shipment is no different than whether a customer could turn to an alternative source of funds if a bank says, oh, you don't have enough funds in this account.

[00:03:30] Speaker 01:
That's really outside the scope of the claims and what's described in the specification where both describe

[00:03:37] Speaker 01:
that there's just one bank involved, there's just one shipper involved in these transactions.

[00:03:46] Speaker 03:
Where in the spec are you referring to about the one shipper?

[00:03:51] Speaker 01:
Well, it's in the embodiments.

[00:03:54] Speaker 03:
Is this column 14, the figure 11 embodiment?

[00:03:58] Speaker 01:
That's correct.

[00:04:00] Speaker 01:
Figure 10 and Figure 11 both describe the anonymous shipping aspect.

[00:04:06] Speaker 01:
Figure 10 is in conjunction with a purchase, whereas Figure 11 is just more generally referring to anonymous shipping.

[00:04:14] Speaker 01:
And neither one of those describes multiple shippers or turning to an alternative, just like the Figure 7 embodiment doesn't describe turning to an alternative bank for another source of funds.

[00:04:28] Speaker 01:
So I want to get back to the board's error with respect to enabling the transaction.

[00:04:34] Speaker 01:
As I mentioned, that's at odds with dependent claims four and 25, where claim four recites that the secure registry system obtains the customer's address for delivery of the item by the third party.

[00:04:48] Speaker 01:
So in view of this, the board's determination that a shipping carrier cannot be the third party recited in the claims is indefensible.

[00:04:55] Speaker 01:
And then similarly at odds with the specification, as I just referred, figure 10 and the corresponding written description describe a method of conducting a transaction with a merchant without requiring the user to provide to the merchant the user's name, address, or other identifying information while enabling the merchant to ship the goods to the user.

[00:05:15] Speaker 01:
So that's exactly what we see in Brenner.

[00:05:17] Speaker 01:
And I would also point out that in column three of the 539 patent at A57,

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The 539 patent describes that its purported invention facilitates multiple new forms of transactions, including enabling anonymous identification that will enable the person to receive mail and other items without providing the recipient's address information to the sender.

[00:05:45] Speaker 01:
And that's, you know,

[00:05:46] Speaker 01:
separate and apart from any financial approval purchase transaction.

[00:05:52] Speaker 01:
That's simply about the shipping and the 539 patent makes it clear that that's one of the disclosed and contemplated embodiments is the anonymous shipping that's the same as what's in Brenner.

[00:06:04] Speaker 01:
So there was simply no basis for the board to conclude that the independent claims are limited to financial approval and exclude a third party shipper.

[00:06:13] Speaker 01:
Once you get past that, even patent owner's own expert had to agree that a shipping carrier enables a transaction if the term enable is not limited to financial approval.

[00:06:22] Speaker 01:
And that's at A2796 where he testified that the shipping carrier received account identifying information in order to enable the shipping of the merchandise to the purchaser.

[00:06:34] Speaker 03:
Now, as I mentioned... I don't have that testimony in front of me.

[00:06:39] Speaker 03:
Those words are somewhat different.

[00:06:41] Speaker 03:
Enabling the shipping might not

[00:06:43] Speaker 03:
be a concession that that's enabling the transaction with the merchants?

[00:06:49] Speaker 01:
Well, but claim four clears that up because the shipping is part of the transaction.

[00:06:54] Speaker 01:
The shipping is a service that is provided as part of the transaction and the delivery is achieved by a third party shipper.

[00:07:07] Speaker 01:
So we see that from the dependent claims.

[00:07:09] Speaker 01:
So once we have the understanding

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that the shipment is part of the transaction.

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The claims require that, at least the dependent claims.

[00:07:18] Speaker 01:
So the independent claims have to encompass that scope.

[00:07:22] Speaker 01:
Then there's really no way to distinguish from what Brenner's talking about with its anonymous shipment.

[00:07:28] Speaker 01:
Now I want to briefly touch on the board's other error in construing the enable or deny term where they interpreted the terms to require a binary choice to enable or deny the transaction.

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rather than finding the claim satisfied by simply performing one or the other.

[00:07:45] Speaker 01:
This perhaps flowed from the board's interpretation that mistakenly equated enabling with approving.

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But in truth, nothing in the claim recites making such a choice.

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And the claim is satisfied by performing either alternative.

[00:07:59] Speaker 01:
And then even if the court finds no fault in that aspect of the board's decision, it's still aired in finding Brenner Schipper cannot deny the transaction because as we discussed,

[00:08:09] Speaker 01:
USR's own expert testified that, of course, a shipper can refuse to complete a shipment.

[00:08:15] Speaker 01:
And the board's finding that it was speculative whether that could happen in Brenner ignores that evidence, unrebutted evidence, by patent owner's own expert that that's how a person of ordinary skill in the art would understand that shippers operate.

[00:08:31] Speaker 01:
So that was error.

[00:08:32] Speaker 01:
So for these reasons, numerous reasons, the board aired in concluding

[00:08:36] Speaker 01:
that Brenner's shipping disclosure cannot satisfy claim element 1.6.

[00:08:42] Speaker 01:
Now, turning to the banking disclosure in Brenner, here the board erred both by misinterpreting the reference and by refusing to consider an alternative obviousness theory that was properly raised during the IPR.

[00:08:55] Speaker 01:
First, we showed that Brenner discloses sending account identifying information to a bank

[00:09:00] Speaker 01:
in the form of linking information, which provides the ability to determine the customer identity and account number.

[00:09:07] Speaker 01:
The board didn't take issue with the mapping of the linking information to the claimed account identifying information, but rather found a purported inconsistency between our mappings to limitations 1.3 and 1.6.

[00:09:22] Speaker 01:
In doing so, the board concluded on its own that it doesn't make sense for both the secure provider and the bank to use the linking information in Brenner.

[00:09:33] Speaker 01:
That wasn't an issue that USR had raised.

[00:09:35] Speaker 01:
The board reached its conclusion on its own in the final written decision.

[00:09:39] Speaker 01:
But it's refuted by the reference itself.

[00:09:42] Speaker 01:
It makes perfect sense for the secure provider to use the linking information to look up, for example, shipping information to provide to a shipper.

[00:09:51] Speaker 01:
and for the bank to also use the linking information after receiving it from the secure provider to look up the customer's account number.

[00:10:00] Speaker 01:
And that's exactly what Brenner discloses, for example, at A2503 through A2505.

[00:10:08] Speaker 01:
We cited that in the petition, for example, at A31.

[00:10:12] Speaker 01:
The board's conclusion, to the contrary, has no evidentiary support.

[00:10:19] Speaker 01:
Finally, we presented an alternative

[00:10:20] Speaker 01:
theory that the bank in Brenner satisfies element 1.6 when it receives the customer's actual account number from the secure provider as opposed to the linking information.

[00:10:32] Speaker 01:
The board abused its discretion in refusing to consider this argument.

[00:10:37] Speaker 01:
The board faulted us for not raising the argument in the petition, but that was incorrect.

[00:10:42] Speaker 01:
In the petition for limitation 1.6,

[00:10:46] Speaker 01:
we asserted that Brenner's secure provider sends customer information to the bank, such as a name or address.

[00:10:54] Speaker 01:
That's at A109.

[00:10:57] Speaker 01:
Moreover, we provided the exact mapping at issue with respect to, for example, claims 16 and 18, dependent claims that require that the account identifying information recited in claim one is an account number.

[00:11:13] Speaker 01:
That's found in our petition at A109.

[00:11:15] Speaker 01:
123 through A125, citing Brenner 1028 through 1110, which is A2511 through A2512, as teaching that the secure provider stores the account number to provide to the bank computer.

[00:11:32] Speaker 01:
The argument and evidence were there in the petition from day one.

[00:11:36] Speaker 00:
I'm sorry.

[00:11:39] Speaker 00:
Finish your sentence.

[00:11:40] Speaker 00:
I apologize.

[00:11:40] Speaker 00:
This is Judge Proust.

[00:11:42] Speaker 00:
Finish what you were going to say.

[00:11:43] Speaker 01:
I was just going to say, moreover, even if this is somehow considered new argument, decisions of this court, such as Apple v. Andrea Electronics, show that it was error for the board to refuse to consider it when we raised it, when it was in response to arguments that came up during the IPR and they didn't rely on any new evidence.

[00:12:03] Speaker 01:
The evidence was cited in the petition.

[00:12:06] Speaker 00:
This is Judge Proust.

[00:12:07] Speaker 00:
I don't want to cut in too much into your rebuttal, but I don't know if you were listening to the Apple case that preceded this, the argument in that case.

[00:12:15] Speaker 01:
Yes, Your Honor.

[00:12:16] Speaker 00:
But we asked about the relationship between this case and the 101 district court appeal that was heard earlier this week.

[00:12:26] Speaker 00:
Do you have a view on that?

[00:12:28] Speaker 00:
Is your view contrary to what the other side, the parties in the other case seem to agree?

[00:12:33] Speaker 00:
that potentially is hypothetical, but go ahead.

[00:12:37] Speaker 01:
I do not have a contrary view.

[00:12:38] Speaker 01:
I would agree that if the District Court 101 decision is affirmed and becomes a final judgment, then that would moot our IPR appeal.

[00:12:48] Speaker 00:
Thank you.

[00:12:50] Speaker 00:
We'll restore your rebuttal time and let's turn to Mr. Matthews again.

[00:12:55] Speaker 00:
Mr. Matthews?

[00:12:58] Speaker 02:
That's not the second time I've done that.

[00:12:59] Speaker 02:
I'm sorry, your honor.

[00:13:00] Speaker 02:
May it please the court, I had forgotten to take my mute off.

[00:13:04] Speaker 02:
We all do that.

[00:13:07] Speaker 02:
The board's determination that appellants failed to prove unpatentability of any of the claims based on the combination of Brenner, Weiss, and Desai is supported by substantial evidence and not contrary to law.

[00:13:20] Speaker 02:
The dispute involves essentially two imitations, claim 1.3 and limitation 1.6.

[00:13:27] Speaker 02:
which also appear in some form in the other three independent claims, 22, 37, and 38.

[00:13:33] Speaker 02:
And 1.6 requires that account identifying information, which is the customer's personal information, must be provided to a third party to enable or deny the transaction with the provider in connection with the question that Judge Prost raised about refusal to ship and whether that was equivalent or could be equivalent to denying the transaction.

[00:13:54] Speaker 02:
We, of course, take the position, as the board did,

[00:13:57] Speaker 02:
that deciding to not ship is not the same as denying the transaction with the provider.

[00:14:03] Speaker 02:
The claim is directed to a transaction with the provider, and the board determined correctly that a couple of things.

[00:14:12] Speaker 02:
Number one, that there's no disclosure of Brenner's shipping carrier denying the transaction.

[00:14:18] Speaker 02:
The board found that the appellant's argument that Brenner's shipping carrier could refuse to provide shipping were speculative and not based on Brenner's disclosure.

[00:14:27] Speaker 02:
But in addition... Well, Mr. Matthews, this is Judge Crouse.

[00:14:31] Speaker 00:
Let me just ask you about that because the difficulty I'm having is that the way the use of the terms enable and deny are not used in the specification, right, in the way you'd have us use it here.

[00:14:47] Speaker 00:
You say enable means approve and denial means terminate.

[00:14:54] Speaker 00:
But why didn't the claim use those words then?

[00:14:59] Speaker 02:
Yeah, I can't speak to why the patent attorney used the particular words in the claim.

[00:15:04] Speaker 02:
I can speak to the fact that, you know, figures 8, 9, and 10 discuss the transaction of the 839, I'm sorry, the 539 patent at appendix 49 through 51, disclose the steps of the transaction where a merchant

[00:15:23] Speaker 02:
a provider and a USR and a third party credit card company are all included.

[00:15:30] Speaker 02:
And there it talks about, as you can see, for example, in Figure 10, you notify the USR, the credit card company notifies the USR as a result of the transaction and it's either declined or accepted.

[00:15:43] Speaker 02:
And that is how it was disclosed and discussed in the patent.

[00:15:50] Speaker 02:
I can't speak to why enable or deny

[00:15:53] Speaker 02:
was used to the claim.

[00:15:55] Speaker 02:
I can say that the board didn't have any difficulty understanding that enabling or denying the transaction means that the third party is presented with the binary choice of enabling or denying the transaction and that the board also concluded that Brenner did not disclose a shipper who had the power

[00:16:16] Speaker 02:
to deny the transaction.

[00:16:18] Speaker 02:
Certainly you could imagine, one could imagine, that a shipper could be given that power.

[00:16:24] Speaker 02:
For example, if the credit card company were making a decision as to whether or not to ship a new credit card and needed to evaluate the account identifying information that was sent to the credit card company, they would be the shipper and the third party.

[00:16:42] Speaker 02:
to the extent that, you know, Figure 11 doesn't disclose a transaction that independent claims of the 539 is meant to cover or that anybody has argued is meant to read on.

[00:16:54] Speaker 02:
And if you look at Figure 10, you can see where the board's conclusion comes from that the shipper, when the shipper is involved, is only involved after the conclusion of the transaction, in other words,

[00:17:08] Speaker 02:
the shipper only becomes involved after the credit card company has decided to approve the transaction.

[00:17:14] Speaker 02:
And that's the third party in that transaction, the credit card company, not the shipper.

[00:17:21] Speaker 02:
With respect to the arguments about claims four, somehow redefining the claims such that a shipper would be the controlling party and moreover that renter shipper would anticipate the claim.

[00:17:36] Speaker 02:
First, it's important to note that

[00:17:38] Speaker 02:
Appellants never relied on dependent claim four, but rather only discussed dependent claim 25 in view of their claim differentiation argument.

[00:17:47] Speaker 02:
That's in Appendix 356.

[00:17:49] Speaker 02:
Second, the dependent claims four and 25 simply specify an optional additional delivery component to a service provided by the provider.

[00:17:57] Speaker 02:
Again, this is the transaction with the provider.

[00:18:03] Speaker 02:
These claims do not, as appellants attempt to argue,

[00:18:05] Speaker 02:
require that the third party residing in claim one be the shipper, or require that the actual shipping entity be the shipper to enable or deny the transaction with the provider and third, even if the claims third party were defined as the shipper in claim four.

[00:18:21] Speaker 02:
And we don't believe that to be the case.

[00:18:23] Speaker 02:
That just means that the shipper might be able to enable or deny the transaction in addition to shipping the item.

[00:18:30] Speaker 02:
Brenner's third-party shipping carrier has no capacity to enable or deny the transaction with the provider because it is not involved until after the transaction.

[00:18:38] Speaker 02:
That's shown in Appendix 2511 at Column 10, Lines 3 through 4, which reads, once a purchase by the customer has been approved, the vendor arranges for the package to be picked up by the third-party carrier.

[00:18:52] Speaker 02:
And again, in Appendix 2515, that's Column 14, Lines 20 through 22 of Brenner,

[00:18:58] Speaker 02:
which reads, upon approval of the transaction, the vendor readies the goods for anonymous shipment.

[00:19:05] Speaker 02:
In addition, Dr. Jacobson did not admit that shippers could refuse to provide service.

[00:19:11] Speaker 02:
He explained that shippers could theoretically refuse to provide shipping for a number of reasons, but not in a way that would satisfy limitation 1.6.

[00:19:20] Speaker 02:
If you look at appendix 2796, which is page 67 of his testimony, he says,

[00:19:26] Speaker 02:
So it's their job to send it.

[00:19:28] Speaker 02:
UPS or U.S.

[00:19:29] Speaker 02:
Postal Service would not determine whether this should be done or not.

[00:19:32] Speaker 02:
Of course, they could refuse to provide service or lose the package or whatever.

[00:19:36] Speaker 02:
But that is a failure for them to carry out their part of it.

[00:19:40] Speaker 02:
That is not an aspect of approving or denying the transaction.

[00:19:43] Speaker 02:
And then again, at appendix 2797 to 2798, he says he might not be able that the shipper might not be able to legally ship wine, for example, to certain countries, but Brenner doesn't disclose this.

[00:19:54] Speaker 02:
And critically, Dr. Jacobson also testified that the approving or denying is performed before the shipper gets involved.

[00:20:02] Speaker 02:
That's an appendix 2796.

[00:20:04] Speaker 02:
And that is in fact what the board found here.

[00:20:08] Speaker 03:
Can I just ask you, and I don't know if this makes any sense, are we talking about something akin to creating a contract, namely the transaction between merchant and customer?

[00:20:24] Speaker 03:
The transaction and the enabling or denying of it is the positive or negative decision about entry into the contract, whereas whatever the shipper is doing,

[00:20:37] Speaker 03:
might be part of the fulfillment of the contract, but not into the entry or nonentry.

[00:20:45] Speaker 02:
Yeah, I think your honors, I don't know if I would word it exactly that way, but with regards to a contract, but it certainly has to do with, you know, there are separate parties, the provider, the shipper, and the third party.

[00:20:59] Speaker 02:
The shipper is not mentioned in the claim, of course.

[00:21:01] Speaker 02:
And here, the third party has to be able to enable or deny the transaction with the provider.

[00:21:08] Speaker 02:
So yes, in some sense, when I go to Target and try to buy something, at some level the third party credit card company has to approve or deny that transaction.

[00:21:22] Speaker 02:
And that is the transaction that I'm trying to conduct with Target, right?

[00:21:28] Speaker 02:
So is that a contractual arrangement?

[00:21:29] Speaker 02:
I wouldn't make it that narrow, but it's certainly a transaction that is between me as the entity and the merchant and not specifically me and the third party.

[00:21:44] Speaker 02:
I don't know if that addresses your question.

[00:21:46] Speaker 03:
No, I was just trying to think of, I mean, there's something intuitively distinct

[00:21:51] Speaker 03:
about the entry into an agreement and the actions that a variety of people might have to take in order for the agreement to be fulfilled.

[00:22:01] Speaker 03:
And some of those might involve people other than the merchant and the customer.

[00:22:06] Speaker 03:
But the claim, I kind of take the board's view and your view to be that the claim about enabling or denying the transaction is enabling or denying

[00:22:16] Speaker 03:
the creation of a binding relationship between the merchant and the customer.

[00:22:24] Speaker 03:
Things that might be necessary for both sides of that agreement to do what they need to do under it are not part of the enabling or denying of the transaction.

[00:22:36] Speaker 02:
I think that's right.

[00:22:37] Speaker 02:
And to the extent that, you know, fulfillment after the transaction has been approved, you know, fulfillment, it may be subsequent steps that need to be carried out.

[00:22:48] Speaker 02:
to make sure that the transaction is completed is separate from enabling or denying sort of the institution of that or the approval of that transaction.

[00:22:59] Speaker 02:
Remember, there are a few steps that we haven't talked about today that claim one, for example, requires, which is making sure at first that

[00:23:11] Speaker 02:
that the provider has the ability, has the rights to access the secure data that's stored at the registry that is necessary to complete the transaction.

[00:23:21] Speaker 02:
So there's a few steps that need to be handled carefully with respect to this claim to make sure that that transaction is handled appropriately.

[00:23:31] Speaker 02:
And so I think Your Honor is correct in that point.

[00:23:35] Speaker 02:
With the time I have left, I'd like to discuss the third party bank disclosure, move from the shipping carrier disclosure.

[00:23:42] Speaker 02:
The board found, you know, the board did find that there was inconsistencies.

[00:23:47] Speaker 02:
And the first time this became apparent was not when the final written decision was issued, but was actually at the hearing.

[00:23:54] Speaker 02:
at appendix 668 to 670, the board asked the appellants at the hearing, if you're relying on a Brenner embodiment where the linking table is stored at the secure provider so it can satisfy the mapping requirement for limitation 1.3, the judge asked, why would the secure provider send the linking information to the bank?

[00:24:14] Speaker 02:
The board told appellants that their mapping of Brenner mixed two different embodiments of Brenner.

[00:24:19] Speaker 02:
And at the hearing, the appellants agreed that Brenner didn't explicitly disclose

[00:24:23] Speaker 02:
this particular combination but argued that it didn't exclude the possibility.

[00:24:28] Speaker 02:
Now, it's an understatement to say that Brenner doesn't disclose that combination.

[00:24:34] Speaker 02:
In fact, it goes out of its way at appendix 2511 and 2512 and again at 2509 to say that you store it one place as a secure registry, the linking information, or you store it at another place.

[00:24:47] Speaker 02:
Let's recall that the linking information, let me take another step back, let's recall

[00:24:52] Speaker 02:
that in Brenner, a customer sets up with the secure provider a customer object.

[00:24:58] Speaker 02:
This is an anonymous object that they can use then online to interact with vendors.

[00:25:04] Speaker 02:
And so I don't have to give any of my personal information.

[00:25:06] Speaker 02:
I just give them the customer object.

[00:25:08] Speaker 02:
And the vendor knows the customer object but doesn't know any of the personal information.

[00:25:12] Speaker 02:
The Brenner discloses, well, when the vendor wants to complete that transaction, they can either

[00:25:18] Speaker 02:
contact the secure provider, give them the customer object, and the secure provider can look up the personal information.

[00:25:26] Speaker 02:
Or you can send that customer object directly to the bank, and the bank will have the linking information in that instance.

[00:25:34] Speaker 02:
And what the board determined was it doesn't make any sense to have it in both places.

[00:25:39] Speaker 02:
It's inefficient, and Brenner doesn't disclose that at all.

[00:25:43] Speaker 02:
Brenner leaves no doubt that the linking operation is performed only once, either at the secure provider or at the bank computer, but not at both locations.

[00:25:52] Speaker 02:
And on that basis, the board found that appellants failed to support their mapping.

[00:25:55] Speaker 02:
There was no explicit disclosure in Brenner of an embodiment where the linking information is stored at both places.

[00:26:01] Speaker 02:
And there's an explicit disclosure not to do that.

[00:26:04] Speaker 02:
And the board found that using it at both places would not make sense.

[00:26:07] Speaker 02:
That's at Appendix 12.

[00:26:09] Speaker 02:
And there's no objective evidence or explanation to support this modification

[00:26:13] Speaker 02:
of Brenner's teaching, so the boards concluded correctly that this creates a significant inconsistency between the mappings of limitation 1.3 and 1.6, and that conclusion is supported by substantial evidence.

[00:26:28] Speaker 02:
And then with respect to the alternate mapping, it is true, our view is that the appellants raised this mapping at the hearing, and the board

[00:26:42] Speaker 02:
would be justified in disregarding it for that reason alone.

[00:26:45] Speaker 02:
The appellants did not explicitly, the petition, name this mapping or include this mapping for any independent claims.

[00:26:54] Speaker 02:
They admitted, well, we didn't do it for any of the independent claims, but we did it for three dependent claims.

[00:26:59] Speaker 02:
They claimed 5, 16, and 26.

[00:27:02] Speaker 02:
And the court looked at those disclosures and said, you know what, this doesn't put anyone on notice that, in fact, you were intending to rely on that particular disclosure that Brenner would send account information directly to the bank, how the secure providers send it directly to the bank.

[00:27:21] Speaker 02:
And, in fact, when we look at

[00:27:24] Speaker 02:
your discussion that looks like you're still relying on it, an embodiment where the linking table is at both locations.

[00:27:33] Speaker 02:
Your reply confirmed that.

[00:27:35] Speaker 02:
Your general discussion of the petition at Appendix 18, they discussed the petition, talks about

[00:27:42] Speaker 02:
the secure provider mapping the customer object to the account identifying information, but doesn't discuss the secure providers sending the information to the third party bank.

[00:27:50] Speaker 02:
And so in the end, they felt that while I didn't exclude it as being necessarily new, what they said was, it's just not there.

[00:28:00] Speaker 02:
It's not in the petition at all.

[00:28:03] Speaker 02:
And so they correctly declined to find the petition adequately raised in this alternative mapping.

[00:28:09] Speaker 02:
We asked that the

[00:28:12] Speaker 02:
court determine and affirm the board's determination that appellants fail to prove unpatentability of any of the claims based on the associated combination.

[00:28:21] Speaker 02:
Thank you.

[00:28:22] Speaker 02:
Thank you.

[00:28:24] Speaker 02:
Council, rebuttal.

[00:28:26] Speaker 01:
Thank you, Your Honor.

[00:28:27] Speaker 01:
It's important to remember with respect to the shipping embodiment of Brenner

[00:28:32] Speaker 01:
that broadest reasonable interpretation is the claim construction standard that applies here.

[00:28:38] Speaker 01:
So there was a question to Mr. Matthews about whether enable means approve and whether deny means terminate.

[00:28:45] Speaker 01:
There's no support in the specification for those interpretations, nor is it the broadest reasonable interpretation of the terms enable or deny.

[00:28:56] Speaker 01:
USR urges the court to ignore the plain language of the dependent claims and interpret the third party as limited to a financial entity such as a bank, but they can't point to any disclosure in their patent of a bank that provides financial approval and also provides the delivery recited in the dependent claims, nor would that make any sense.

[00:29:17] Speaker 01:
With respect to the linking aspect of Brenner, the banking embodiment,

[00:29:23] Speaker 01:
We made no such concession that Mr. Matthews asserted at the oral argument in front of the board that the secure provider and bank are not both disclosed as using the linking embodiment in a single, sorry, the linking information in a single embodiment.

[00:29:41] Speaker 01:
It's important to remember that this issue was not disputed by the parties nor was it argued in the briefing.

[00:29:47] Speaker 01:
At the hearing,

[00:29:48] Speaker 01:
We understood the board line of questioning to refer to using the linking information to look up the customer's account number specifically.

[00:29:56] Speaker 01:
And I would refer the court to A668 through A669 for that.

[00:30:01] Speaker 01:
Nothing in our responses to the board conceded that the secure provider and bank would not both use the linking information for separate purposes.

[00:30:09] Speaker 01:
And in fact, it was undisputed until the final written decision that the secure provider uses the linking information to obtain the customer's address to send to the shipper and also send the linking information to the bank to look up the customer's bank account information as described, for example, in Brenner at 219 through 42.

[00:30:29] Speaker 01:
That's A2503 through 2505 cited, for example, in our petition with respect to limitation 1.3.

[00:30:38] Speaker 01:
Thank you.

[00:30:39] Speaker 01:
Thank you.

[00:30:40] Speaker 01:
We thank both sides and the case is submitted.