[00:00:00] Speaker 04:
for argument is 20-1419, Work in America versus Caterpillar.

[00:00:06] Speaker 04:
Mr. Ogden, whenever you're ready.

[00:00:10] Speaker 05:
Thank you, Your Honor.

[00:00:11] Speaker 05:
Seth Ogden on behalf of Work in America.

[00:00:14] Speaker 05:
May it please the court.

[00:00:16] Speaker 05:
The claims of the 395 patent require switch over without any erratic alteration.

[00:00:23] Speaker 05:
And that is accomplished by switching over from control to control.

[00:00:29] Speaker 05:
In other words, the claims require continuous control throughout the switching process.

[00:00:35] Speaker 05:
They also require that the second selected subset be functional to avoid any erratic alteration.

[00:00:42] Speaker 05:
These are critical differences between Brabeck's concrete screen, which Caterpillar relies upon to teach a switching system, and the roadmilling machines of the claims and of Davis that make Brabeck's teachings inapplicable to establish obviousness.

[00:00:58] Speaker 05:
The combination of Davis and Braybeck only detects a signal loss, in other words, a loss of control, and then attempts to reinstate control by switching to a new sensor.

[00:01:10] Speaker 05:
This results in an erratic alteration.

[00:01:13] Speaker 05:
It is undisputed.

[00:01:15] Speaker 04:
This is Judge Prost.

[00:01:16] Speaker 04:
If I could just interrupt you with a question in light of the limited time we have.

[00:01:21] Speaker 04:
I guess reading the brief, I must tell you I was a little confused because you present this case

[00:01:27] Speaker 04:
is an application of claim construction, not about claim construction itself.

[00:01:33] Speaker 04:
And it seems like you've probably got to do that because you didn't request particular claim construction.

[00:01:40] Speaker 04:
But it seems to me that what you're advocating here about choosing centers and application-related reasons aren't the claim meeting of the claims.

[00:01:53] Speaker 04:
So they're read in from discussion about the specification and some expert testimony.

[00:01:59] Speaker 04:
So if I'm right about that, shouldn't you have requested this claim construction if those, how you're construing the claims here on appeal doesn't necessarily correspond to the plain meaning of the claim?

[00:02:14] Speaker 05:
Well, Your Honor, I would disagree.

[00:02:21] Speaker 05:
Yes, claim construction would need to be requested, and I believe that claim construction was requested because the board issued in its final written decision for the first time a claim construction with respect to the second selected subset, as opposed to it did issue a claim construction in its institution decision for during the milling operation.

[00:02:46] Speaker 05:
So there was a claim construction given.

[00:02:49] Speaker 05:
And I think the argument that we're making is after seeing what that claim construction was and how it was applied for the first time in the final written decision, that claim construction needs a claim construction.

[00:03:03] Speaker 03:
And that is what we're... Here's my problem with that is that, you know, you say it's really kind of a question of grammar.

[00:03:13] Speaker 03:
The real question is what does during milling relate to?

[00:03:18] Speaker 03:
I mean, does during milling say that that's when the sets are chosen, or does it say that's when the chosen signals make a difference?

[00:03:33] Speaker 05:
I agree that there is a grammar question, and that is why a skilled artisan would have looked to the remainder of the claim.

[00:03:40] Speaker 05:
And what they would have seen is the without any erratic alteration of the at least one adjustment value.

[00:03:47] Speaker 05:
And they would understand that in a situation such as Brabeck, where you are selecting based on a pre-determined priority that occurs before, in Brabeck's case, screening has begun, that that's going to allow for a situation where you will have an erratic alteration.

[00:04:06] Speaker 05:
And another thing that a skilled artisan would have understood is looking to column two,

[00:04:14] Speaker 05:
It explains that the switchover device enables a pre-selection of the other sensor and the pre-setting of operating parameters, set values, and actual values of the other pre-selected sensor.

[00:04:26] Speaker 05:
And then it goes on to say, and this is column two at line 19, in this way, a machine operator can already prepare the switchover of the sensors during the milling operation.

[00:04:38] Speaker 05:
And so it explains, and a skilled artist would have recognized that teaching,

[00:04:42] Speaker 05:
as well as looking to all of the embodiments that are disclosed, which all involve a device that permits indication and setting devices that permit selection of the second selected subset during the milling operation.

[00:04:58] Speaker 03:
So you want us to say that even if the claim language doesn't expressly require that the selections occur during the milling operation, that we should

[00:05:11] Speaker 03:
take all the embodiments and say because there's no embodiments in the patent that that's what we should assume is happening?

[00:05:21] Speaker 05:
No, Your Honor.

[00:05:22] Speaker 05:
What we want to be examined is that the board did not give any scope to be without any erratic alteration of the at least one adjustment value because they chose to ignore that in BRABAC, this selection based on a predetermined priority

[00:05:42] Speaker 05:
cannot meet the without any erratic alteration of the at least one adjustment value.

[00:05:47] Speaker 05:
And that a skilled artist in reading the entire.

[00:05:50] Speaker 04:
This is Judge Proce.

[00:05:51] Speaker 04:
What is an erratic alteration of the adjustment value?

[00:05:55] Speaker 04:
Your briefing and the specification don't make it very clear what this even is.

[00:05:59] Speaker 04:
And yet you've argued that it's a matter of law, erratic alteration happens during the sensor switchover in this prior art combination.

[00:06:08] Speaker 04:
And I don't understand what that means.

[00:06:12] Speaker 05:
Yes, Your Honor.

[00:06:13] Speaker 05:
So there are two portions of the specification that, when read together, explain what an erratic alteration is.

[00:06:19] Speaker 05:
So in column one, looking to the background, at line about 44, it explains that false 46, faults in the work result could occur because no control is affected during that time.

[00:06:35] Speaker 05:
And then if you move over to column two, and it's in the paragraph that starts at line 58,

[00:06:41] Speaker 05:
It explains that if the alteration of the adjustment value is not affected in an erratic fashion, then the evenness of the milled road surface is not adversely affected.

[00:06:53] Speaker 05:
So an erratic alteration is an alteration that occurs in the controller that results in an uneven milled road surface, or also to describe as a fault in the work result.

[00:07:03] Speaker 03:
Where did you argue this before the board?

[00:07:09] Speaker 05:
OK.

[00:07:11] Speaker 05:
This was discussed before the board, in Appendix 389, there's a section discussing why Caterpillar has failed to meet their burden to show that the elements of Claim 1 and 11 are found in the prior art.

[00:07:26] Speaker 05:
And there, through the talus, we use work and emphasize the importance of control, switching from control to control, and the importance of the selected subsets.

[00:07:37] Speaker 05:
And that goes part and parcel with the requirement that there be no erratic alteration.

[00:07:43] Speaker 05:
At appendix 364, BRAVEC is discussed.

[00:07:45] Speaker 03:
But you say it goes part and parcel.

[00:07:47] Speaker 03:
But did you expressly say that?

[00:07:53] Speaker 05:
Your Honor, I think we described several situations.

[00:07:58] Speaker 05:
I'm not sure that the words I just used were expressly written into the briefing.

[00:08:03] Speaker 05:
But we described several situations

[00:08:06] Speaker 05:
in which erratic alteration results because the selection is a predetermined priority in BRAC.

[00:08:15] Speaker 05:
And we explained that wouldn't meet the selected subset limitation because it will cause an erratic alteration.

[00:08:23] Speaker 05:
And so with respect to that, you can take a look at Appendix 386 where we explained, work and explained it would be undesirable

[00:08:35] Speaker 05:
to automatically switch the sensors because it would risk adversely affecting the work product.

[00:08:40] Speaker 05:
Rather, the operator would want to stop the milling operation because there are too many conditions where specific sensors are relied upon for proper road milling.

[00:08:49] Speaker 05:
And Caterpillar's expert actually acknowledged that's also, that's an appendix 3227.

[00:08:54] Speaker 03:
Yeah, and the board rejected that, made a factual finding that that is not.

[00:09:00] Speaker 01:
Judge Plager?

[00:09:01] Speaker 02:
Hello?

[00:09:01] Speaker 02:
Can you hear me now?

[00:09:03] Speaker 01:
I can hear you.

[00:09:03] Speaker 01:
Can you hear me?

[00:09:05] Speaker 02:
I can hear you.

[00:09:06] Speaker 02:
Am I back on?

[00:09:07] Speaker 01:
Yes.

[00:09:07] Speaker 01:
And you can be heard by everyone.

[00:09:09] Speaker 01:
Chief Judge, can you hear Judge Plager?

[00:09:12] Speaker 01:
Yes, I can.

[00:09:14] Speaker 01:
And Mr. Ogden, can you hear Judge Plager?

[00:09:17] Speaker 05:
Yes, I can.

[00:09:18] Speaker 01:
Judge Plager, can you hear everybody?

[00:09:20] Speaker 02:
I can hear everybody, and I thank AT&T for getting itself straightened out.

[00:09:26] Speaker 01:
So, Malley, I think you had the floor.

[00:09:29] Speaker 01:
I need to restart the audio recording, and then we can proceed after the message is complete.

[00:09:37] Speaker 04:
Judge O'Malley.

[00:09:38] Speaker 03:
OK.

[00:09:39] Speaker 03:
Now we're going back.

[00:09:41] Speaker 03:
And I asked where you had made the argument below to the board about this erratic alteration of the at least one adjustment value and why that would make combining Brabeck and Davis inappropriate.

[00:10:07] Speaker 03:
I don't see the erratic adjustment discussion.

[00:10:12] Speaker 03:
And you conceded that you didn't use those exact words.

[00:10:17] Speaker 03:
But so I don't see it in any of the pages that you're citing me to.

[00:10:23] Speaker 05:
So, Your Honor, what we discussed was that

[00:10:30] Speaker 05:
with respect to the second selected subset.

[00:10:33] Speaker 05:
And so that's getting back to the claim construction argument.

[00:10:36] Speaker 05:
So first, let me back up.

[00:10:38] Speaker 05:
I think before we were cut off, you had said that the board rejected that argument.

[00:10:43] Speaker 05:
So the board rejected the factual argument with respect to Orkin's motivation to combine.

[00:10:52] Speaker 05:
The board found that there would be trade-offs and that replacing an unused sensor

[00:10:58] Speaker 05:
I'm replacing a failing sensor would be a trade off that that one might take and there are issues that with that that I will address in a minute and but with respect to the second portion they they did reject the motivation to combine but they they never addressed the argument that selecting a second selected subset based on a predetermined priority.

[00:11:21] Speaker 05:
would result in the potential to select a sensor that would not be functional to avoid an erratic alteration.

[00:11:29] Speaker 05:
And that was throughout the arguments that were made with respect to the switching based on Braybeck.

[00:11:38] Speaker 05:
And so that goes to why we argue that this claim construction for second selected subset is incorrect because

[00:11:49] Speaker 05:
in order to have a claim construction that would be or an application of their claim construction that would be correct, it would have to be applied in a way that the second selected subset avoids any erratic alteration of the at least one adjustment value.

[00:12:02] Speaker 04:
And so that's where the... But I didn't understand you to be challenging claim construction on appeal, Mr. Ogden.

[00:12:11] Speaker 05:
We're challenging the application of the claim construction first issued by the board in its final written decision.

[00:12:19] Speaker 05:
And what we're saying is, in the way that they applied the construction, they didn't give it a proper scope as it should be given under a skilled artisan's view of the plain language.

[00:12:34] Speaker 02:
Council, can I ask a question?

[00:12:36] Speaker 02:
Where in the board's 78-page opinion should we find a discussion of this very point?

[00:12:49] Speaker 05:
of the erratic alteration point, Your Honor?

[00:12:51] Speaker 02:
Yes.

[00:12:53] Speaker 02:
Assuming you raised it in some intelligible way, it's not discussed in the board's 78 pages?

[00:13:05] Speaker 05:
Your Honor, it is discussed.

[00:13:07] Speaker 05:
And so first, if we take a look at Appendix 14, there the board recognizes the emphasis

[00:13:18] Speaker 05:
on the importance of the erratic alteration.

[00:13:22] Speaker 05:
And what we see there is that they note that claim one also emphasizes that the sensor swap occurs.

[00:13:30] Speaker 05:
Is that my phone, Your Honor?

[00:13:32] Speaker 04:
I've got appendix 14.

[00:13:34] Speaker 04:
We're on appendix 14.

[00:13:35] Speaker 05:
Are you reading from?

[00:13:40] Speaker 05:
quoting where it says at the very bottom.

[00:13:43] Speaker 05:
And did I hear my time, Your Honor?

[00:13:45] Speaker 05:
I couldn't tell.

[00:13:46] Speaker 04:
Yeah, but you can answer Judge Blake's question.

[00:13:49] Speaker 05:
Cool.

[00:13:51] Speaker 05:
Yes, Your Honor.

[00:13:51] Speaker 05:
So claim one at the bottom there, claim one also emphasizes that the sensor swap occurs not only without interruption of the milling operation, but also without any erratic alteration of the at least one adjustment value, which is a concern when swapping sensors during the act of milling.

[00:14:09] Speaker 05:
And then when we return to Appendix 23, the only thing the board ever discusses is that petitioner contends that BRAVEc discloses an automatic switchover to Sensor 42 without interrupting the machine operation or any erratic interruption or abrupt change in the adjustment value.

[00:14:29] Speaker 05:
And that's the entirety of what the board ends up saying about the erratic interruption.

[00:14:34] Speaker 05:
So they understood

[00:14:36] Speaker 05:
that there was an argument over this erratic interruption.

[00:14:40] Speaker 05:
It was also discussed at the oral argument at Appendix 740.

[00:14:44] Speaker 05:
So they addressed it, but they just glossed over it after recognizing the importance of that claim limitation.

[00:14:50] Speaker 03:
Well, because you put the whole discussion of erratic alteration as going hand in hand with whether it occurs during the switchover, occurs during the milling operation or not.

[00:15:03] Speaker 03:
I mean, that's the only way you argued it.

[00:15:08] Speaker 05:
Your Honor, no, we argued that the second selected subset must be selected during the milling operation.

[00:15:15] Speaker 05:
That a skilled artisan would understand, yes.

[00:15:18] Speaker 03:
And that's what the board rejected, right?

[00:15:22] Speaker 05:
The board rejected that, but in rejecting that, they failed to recognize that BRAVEX system would cause an erratic alteration and that a skilled artisan would understand that the scope of, based on the intrinsic evidence,

[00:15:38] Speaker 03:
that the scope of second-selected subset requires that it be selected during the milling operation, otherwise... But Ford recognized that argument and said that the point is that choosing Brabeck, you don't have to choose Brabeck or be motivated to choose Brabeck because it would solve some other problem that you're recognizing, but they said that there was a motivation to choose Brabeck because of the

[00:16:08] Speaker 03:
ability to use the sensors, right?

[00:16:13] Speaker 05:
Yes, they did.

[00:16:14] Speaker 05:
Go ahead.

[00:16:16] Speaker 03:
I mean, your motivation doesn't come from anywhere.

[00:16:20] Speaker 05:
Yes, Your Honor, and at this point, we're not arguing the motivation to combine and their rejection of that.

[00:16:26] Speaker 05:
What we're arguing is that their final construction of second selected subset that only was given in their final written decision

[00:16:35] Speaker 05:
The scope of that construction is not consistent with what a skilled artisan would have understood reading the claims in their entirety, including the without any erratic alteration language.

[00:16:48] Speaker 02:
There's a lengthy discussion council in the appendix on pages 24 and 25 of the switchover issue.

[00:17:00] Speaker 02:
which is really the underlying problem in this erratic operation.

[00:17:06] Speaker 02:
Apparently, you had to stop the milling in the old system, and you're claiming that your system now works better because it's automatic.

[00:17:18] Speaker 02:
That is, you don't... the sensors shift themselves.

[00:17:21] Speaker 02:
You don't have to stop and shift them.

[00:17:24] Speaker 02:
And that is a lengthy discussion, and that part of the opinion

[00:17:30] Speaker 02:
in which they find that the prior art dealt with it in a way that makes your claim obvious.

[00:17:41] Speaker 02:
What is it you're saying?

[00:17:42] Speaker 02:
Are you saying something different from that discussion?

[00:17:48] Speaker 05:
With respect to that discussion, what we're saying is that they're wrong as a matter of law.

[00:17:58] Speaker 05:
that a skilled artisan would have looked at this claim and thought that switching over, they're correct that the switchover occurs during the milling operation.

[00:18:08] Speaker 05:
They're wrong about when the selection has to occur to avoid any erratic alteration and that a skilled artisan would have understood that selection must occur during the milling operation.

[00:18:18] Speaker 05:
And that's because Braebec is a stationary device.

[00:18:20] Speaker 05:
So Braebec is a different

[00:18:22] Speaker 05:
is a different device and the screen just moves around on a boom.

[00:18:26] Speaker 05:
So in Brabeck that solution works because the operator can look around before he starts screening and he can say, what might I run into that I need to avoid?

[00:18:35] Speaker 05:
I can set this priority.

[00:18:37] Speaker 05:
A milling machine is a 50,000 pound device, many times larger, that's traveling down the roadway with a 20,000 pound drum attached.

[00:18:47] Speaker 05:
And because it's propelling down the roadway, it's a different situation because you don't know what you're going to encounter that would require the switchover.

[00:18:53] Speaker 02:
And so your argument is not that you didn't get heard and you didn't get considered.

[00:19:03] Speaker 02:
Your argument is simply you disagree with the way the board resolved the question.

[00:19:09] Speaker 02:
Is that correct?

[00:19:11] Speaker 05:
We disagree with the scope of the board's claim construction in its final written decision.

[00:19:16] Speaker 05:
That was the first time that we received that claim construction.

[00:19:21] Speaker 05:
And we characterize that as its application, because it's the scope of how it described it.

[00:19:27] Speaker 05:
A subset that it's chosen could be right if you gave it the correct scope.

[00:19:32] Speaker 05:
But they didn't.

[00:19:32] Speaker 05:
They made the scope too broad.

[00:19:34] Speaker 03:
Counsel, I just have one last question, because I know your time is up.

[00:19:37] Speaker 03:
But I'm just very confused.

[00:19:40] Speaker 03:
Are you saying that the board should have considered Brabeck's operation in deciding what the appropriate claim construction would be?

[00:19:52] Speaker 05:
No, not at all, Your Honor.

[00:19:54] Speaker 05:
What I'm saying is that the board should have considered how a skilled artisan would have read this entire limitation.

[00:20:01] Speaker 05:
I think it's, I don't remember what they call it, 1G.

[00:20:05] Speaker 05:
It starts at about line 32 of column 7.

[00:20:10] Speaker 05:
and understood that a skilled artisan would have viewed the selection to avoid any erratic alteration as requiring a selection during the milling.

[00:20:19] Speaker 05:
It was also supported by the specification, which a skilled artisan also would have looked to to understand this.

[00:20:25] Speaker 05:
No, we are not saying that a skilled artisan would have necessarily looked to Braybeck to construe the claims in the 395 patent.

[00:20:34] Speaker 04:
Okay, thank you.

[00:20:36] Speaker 04:
We'll reserve, we'll restore a little of your rebuttal time, which has been entirely used, and let's hear from Mr. Goldberg.

[00:20:43] Speaker 04:
Thank you.

[00:20:48] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:20:52] Speaker 00:
I think that Your Honors have sort of gotten to the crux of it here.

[00:20:57] Speaker 00:
They didn't make these claim construction arguments to the Board, and

[00:21:04] Speaker 00:
Now what we have here is essentially just a substantial evidence case.

[00:21:10] Speaker 00:
Does substantial evidence support the board's findings on these obviousness issues?

[00:21:15] Speaker 00:
And it does in appendix pages 23, 24, 25, up into the 35 to 40 area with respect to the selected subset issue that

[00:21:32] Speaker 00:
Council is arguing about right now.

[00:21:34] Speaker 00:
Um, playback is what the board pointed to for the different selected subsets.

[00:21:42] Speaker 00:
It's specifically identified the various sensors, 20, 22, and alternate sensor 42.

[00:21:50] Speaker 03:
Is it true that initially at the initiation stage,

[00:22:02] Speaker 03:
The board said that the selection has to occur during the milling operation or did they simply say the switchover occurs during the milling operation?

[00:22:14] Speaker 00:
They did not say that the selection has to occur during the milling operation anywhere in the record that I'm aware of.

[00:22:21] Speaker 03:
So you disfused the fact that the councils claim that somehow the board changed its construction and its final written decision.

[00:22:32] Speaker 00:
Yes.

[00:22:34] Speaker 00:
And I think you'll find, Your Honor, that a lot of times the statements that council has been making about what is on various pages of the record in different places don't always jive with what's actually on those pages when you look at them.

[00:22:48] Speaker 00:
As we thought earlier in the discussion of the, where they supposedly made the argument about the erratic alterations, but it's not on those pages.

[00:22:57] Speaker 03:
All right.

[00:22:57] Speaker 03:
When I asked your friend on the other side, I said that when I read this phrase,

[00:23:02] Speaker 03:
to switch over from, then it goes on, and then it says during the milling operation.

[00:23:07] Speaker 03:
I read that phrase to say that during the milling operation without interruption, modify switchover, not the selection process.

[00:23:18] Speaker 03:
And he said that no, it has to modify both because there is no other embodiment disclosed in the specification other than

[00:23:30] Speaker 03:
the selection occurring during the switchover process or during the milling operation.

[00:23:39] Speaker 03:
Do you agree with that?

[00:23:42] Speaker 00:
No, Your Honor.

[00:23:42] Speaker 00:
In fact, our view is that there is actually no embodiment, no discussion anywhere in the specification of the 395 patents or in the claims of the 395 patents or in the prosecution history of the 395 patents that Ivers says

[00:23:59] Speaker 00:
that the selection would occur during the milling operation.

[00:24:04] Speaker 00:
If we look at the column two area that Brickton's Council is pointing to specifically, this is on appendix page 91 at line 19, they pointed to the sentence where it says, a machine operator can already prepare the switchover of the sensors during the milling operation.

[00:24:27] Speaker 00:
so that the switchover of the sensors is possible at the push of a button.

[00:24:31] Speaker 03:
Okay, what line are we on again?

[00:24:32] Speaker 03:
What line are we on again?

[00:24:33] Speaker 00:
We're starting at line 19, column 2, line 19.

[00:24:37] Speaker 00:
Okay.

[00:24:39] Speaker 00:
And the point is they refer to this line about preparation and they say that that means that you have to select the sensors during operation.

[00:24:52] Speaker 00:
But if we look

[00:24:53] Speaker 00:
up toward the top of column two, actually starting at the very last line of column one, where it first introduces what this preparation is that's going on.

[00:25:02] Speaker 00:
It says, providing a further indication and setting unit offers the advantage that the new sensor, which is to be exchanged for the sensor currently in use, can be prepared for the time to switch over in terms of its actual and set values while the operation continues.

[00:25:21] Speaker 00:
But the only thing

[00:25:22] Speaker 00:
in the preparation that has to be occurring during the milling is just the setting of the actual and set values.

[00:25:31] Speaker 00:
And the specification in several places actually recognizes that the sensors don't have to all be selected during milling or any be selected during milling.

[00:25:42] Speaker 00:
For example, in column two at line 16, it refers to pre-selection of the other sensor.

[00:25:51] Speaker 00:
In column five,

[00:25:52] Speaker 00:
it again refers to a preselected sensor B in line 11, in line 15, in line 19.

[00:26:01] Speaker 00:
In column 6, at line 45, it actually says that all embodiments indicate that the set values and the actual values of the preselected sensor B. So they are actually quite often disclosing that it's just going to be a preselected sensor.

[00:26:18] Speaker 00:
It doesn't have to be selected during milling.

[00:26:21] Speaker 00:
And in fact, this shows up in the claims as well.

[00:26:23] Speaker 00:
In Claim 5, this is at Column 7 on Appendix Page 94, it talks about around Line 64-65, a human operator may manually preselect the replacement sensor.

[00:26:40] Speaker 00:
So all over the place, the embodiments disclosing the specification are actually disclosing exactly the opposite of what victims' counsel argues.

[00:26:48] Speaker 00:
These sensors can

[00:26:50] Speaker 00:
be pre-selected, there is no requirement that they ever be selected during operations.

[00:26:55] Speaker 00:
And as far as the application-related reasons that council erected premises essentially everything on, they want to make this argument that the machine operators have to be able to see what's happening down the road and then look at it and then make the switch during milling.

[00:27:16] Speaker 00:
The board already rejected that argument.

[00:27:19] Speaker 00:
and has substantial evidence supporting its position, but the application-related reasons can actually be exactly what's happening in BRABAC, that you have a sensor where you lose communication, it's a failed sensor, it's something like that, and then you just automatically do the switchover.

[00:27:37] Speaker 00:
And with respect to the erratic alteration that council complains the board somehow did not address, well, the board did address that at

[00:27:48] Speaker 00:
Appendix page 23, in about halfway down the page, they say that petitioner contends that Brabeck discloses an automatic switch over to sensor 42 without interrupting the machine operation for any erratic interruption or abrupt change in the adjustment value because Brabeck uses the last one value of sensor 22 for alternate sensor 42 to keep the right side in the same position.

[00:28:18] Speaker 00:
And if we look to Brebeck and specifically at paragraph 36, we can see exactly this language.

[00:28:28] Speaker 00:
The whole point of Brebeck is that they want to be avoiding having uncontrolled operation.

[00:28:36] Speaker 00:
And in paragraph 36, this is on appendix page 981, it says starting at the bottom of the left column,

[00:28:46] Speaker 00:
The last signal output by the alternate sensor 42 prior to the right sensor 22 becoming unavailable is used as a set point for the right channel of the controller 28.

[00:28:57] Speaker 00:
And if you go a few more lines down, in other words, the alternate sensor 42 is used to keep the right side in the same position or attitude as it was in when the primary sensor 22 became blocked.

[00:29:10] Speaker 00:
So there's no uncontrolled operation here.

[00:29:12] Speaker 00:
There's no gap between

[00:29:15] Speaker 00:
control based on the original sensors and control based on the new sensors.

[00:29:19] Speaker 00:
That's the whole point of BRABEC.

[00:29:21] Speaker 00:
They want to be able to use it to keep the right side in the same position.

[00:29:25] Speaker 00:
And turning for a moment back to the board's decision with Appendix Page 23, it also cites for this our expert Dr. Beveley's testimony in Exhibit 1002.

[00:29:38] Speaker 00:
Within that paragraph it goes through

[00:29:40] Speaker 00:
Paragraphs 154 and 155, also paragraphs 149 to 164.

[00:29:45] Speaker 00:
These are the paragraphs where our expert actually explained exactly how you take this teaching from Brabeck, put it into Davis, and with colored illustrations articulated exactly how there ends up being no erratic alteration anywhere.

[00:30:07] Speaker 04:
Any further questions from the panel?

[00:30:10] Speaker 02:
No questions.

[00:30:13] Speaker 00:
Are you resting, Mr. Goldberg?

[00:30:17] Speaker 00:
I will stop there, Your Honors.

[00:30:18] Speaker 00:
Thank you.

[00:30:19] Speaker 04:
Thank you.

[00:30:20] Speaker 04:
Mr. Ogden, will we store three minutes of rebuttal that were used

[00:30:28] Speaker 05:
Thank you, Your Honors.

[00:30:29] Speaker 05:
I just want to make a couple points here.

[00:30:31] Speaker 05:
First, I want to clarify, we aren't arguing that the board changed its construction.

[00:30:35] Speaker 05:
It only issued a construction early on with respect to what during the milling operation that phrase itself meant.

[00:30:43] Speaker 05:
The first time it issued a construction about selected subset was in the written decision.

[00:30:48] Speaker 05:
Also, we're not relying on reading in the embodiments from the specification.

[00:30:54] Speaker 05:
We're only

[00:30:55] Speaker 05:
relying on those, is demonstrating the lens through which a skilled artist would have viewed the claim language.

[00:31:01] Speaker 05:
And the main thing I want to discuss here is, and Mr. Goldberg made a good point about this, well I think he missed the point on this, he's talking about switching sensors, but this patent is not about switching sensors, it's about switching control.

[00:31:14] Speaker 05:
And again, the problem here is that the switch of control

[00:31:20] Speaker 05:
is what is required from control to control.

[00:31:23] Speaker 05:
And that's the only way that you can avoid an erratic alteration.

[00:31:28] Speaker 05:
And so the board's construction of selected subset does not ensure that you're going to switch to control because this moving vehicle, you will have a switch to a sensor that may or may not be functional.

[00:31:41] Speaker 05:
And in fact, you could have a catastrophic loss of control and deviation in the adjustment value if you switch to a sensor that's not going to work for that condition.

[00:31:50] Speaker 05:
And so I think that's one of the issues of control.

[00:31:55] Speaker 05:
And then it's undisputed that there is a loss of control before the switchover occurs.

[00:32:02] Speaker 05:
And so there is no switchover from control to control.

[00:32:06] Speaker 05:
Caterpillar's expert admitted that the switchover only occurs after a sensor blackout or after a degradation of the signal.

[00:32:14] Speaker 05:
And so this combination can't meet the claims

[00:32:17] Speaker 05:
And then in addition, the scope of second selected subset as it was construed by the board is improper because it allows for without any erratic alteration.

[00:32:28] Speaker 05:
And Skilled Arson would have understood, based on that addition to that particular claim, that was there regarding the selection of the second selected subset.

[00:32:39] Speaker 05:
And let's see.

[00:32:45] Speaker 05:
In addition to that, we would just

[00:32:47] Speaker 05:
request that this be sent back down to the board so we can get a true application of the proper scope of the second selected subset in view of the without any erratic alteration requirement and considering that Brabeck switch and that there's no dispute as to the fact that switching to a sensor that's not functional to control would result in any erratic alteration.

[00:33:15] Speaker 05:
But that aspect was not discussed in the board's decision.

[00:33:19] Speaker 05:
Thank you, Your Honors.

[00:33:20] Speaker 04:
Thank you.

[00:33:21] Speaker 04:
We thank both sides in the case of submission.