[00:00:00] Speaker 01:
The first argued case this morning is number 21-1745, Advanced Voice Recognition against Apple, Incorporated.

[00:00:11] Speaker 01:
Mr. Beuther.

[00:00:15] Speaker 04:
May it please the court.

[00:00:16] Speaker 04:
Eric Beuther on behalf of the Appellant AVRS.

[00:00:19] Speaker 04:
There are two issues before this court.

[00:00:22] Speaker 04:
One is the dispositive nature of lexicography when it comes to claim construction.

[00:00:27] Speaker 04:
And the second is what I would call PTAB procedure.

[00:00:31] Speaker 04:
In the SAS era in particular, how should the PTAB handle itself if it decides to do an about face and change its view on the grounds for unpatentability?

[00:00:45] Speaker 04:
And how should it treat the parties when it decides to change its view on that?

[00:00:49] Speaker 04:
So those are the two issues.

[00:00:51] Speaker 04:
If I could address the lexicography issue first.

[00:00:55] Speaker 04:
The error that the PTAP committed here was that it disregarded the rule of construction, giving lexicography pretty much dispositive effect as controlling.

[00:01:08] Speaker 04:
And that was error because clean construction is essentially a search for the intent of the patentee.

[00:01:16] Speaker 03:
Council, in this situation, I understand you're arguing lexicography.

[00:01:20] Speaker 03:
But what do we do with this scenario?

[00:01:22] Speaker 03:
Let's assume for a minute that the first time

[00:01:25] Speaker 03:
I think it's in column three, lines 44 through 48.

[00:01:29] Speaker 03:
It has a parenthetical where it defines speech.

[00:01:33] Speaker 03:
And it says, which includes, which is an open-ended phrase, spoken text and spoken and embedded commands.

[00:01:40] Speaker 03:
So let's assume you're right.

[00:01:42] Speaker 03:
That is a definition.

[00:01:44] Speaker 03:
But what about the fact that

[00:01:47] Speaker 03:
later in the patent it says several times that the speech typically it says it includes spoken text and typically includes formatted speech embedded commands or may include formatted speech embedded commands doesn't that either

[00:02:05] Speaker 03:
influence the definition that's provided in the parenthetical you're relying on, or alternatively, it certainly changes it and makes it so your definition is no longer one that should be attributed as the exclusive definition provided by the inventors in the application.

[00:02:23] Speaker 04:
Certainly, Your Honor, that those permissive words should be considered by the PTAB or any court in evaluating what was the true intent of the patentee when he or she used those terms in a claim.

[00:02:38] Speaker 04:
But here, those

[00:02:41] Speaker 04:
permissive examples that the PTAB did rely on were not irreconcilably inconsistent with the clear definition.

[00:02:49] Speaker 04:
The definition that was provided was clearly a definition.

[00:02:52] Speaker 03:
It wasn't... It was your view that it's a requirement, right?

[00:02:56] Speaker 03:
That the speech include not only spoken text, but also spoken inventories.

[00:03:01] Speaker 04:
Yes, that's a clear edict of the definition, and the PTAB never said it was ambiguous or less than clear.

[00:03:09] Speaker 04:
It just found these instances of permissive language as something that you should consider.

[00:03:16] Speaker 04:
But in the court's view of things, the lexicography controls and is almost always dispositive, unless there's other passages in the specification that undermine the clarity.

[00:03:29] Speaker 03:
Why isn't this one of those scenarios?

[00:03:31] Speaker 03:
That statement, I mean, assuming your interpretation of the parenthetical is correct, which I'm not sure it is.

[00:03:37] Speaker 03:
But assuming it is, why won't those leader statements undermine the lexicography you're relying on?

[00:03:43] Speaker 04:
Well, as I say, I don't think they undermine because lexicography is the best and clearest example of what is the inventor's intent.

[00:03:49] Speaker 04:
And when you couple that with the fact that there's no finding of ambiguity, that this was in the system nomenclature section of the specification where all the other definitions, which everyone agreed was a definition in binding,

[00:04:02] Speaker 04:
existed and so to kind of yank this one out and treat it separately and not give it the same respect as the other definitions where the lexicography controls was inappropriate.

[00:04:15] Speaker 04:
In addition, there were seven other instances where the lexicography definition was repeated as controlling.

[00:04:24] Speaker 03:
Why should I, just going to this, I'm going to go to the details on this now, which is why should the word includes be interpreted to mean require?

[00:04:32] Speaker 04:
Well, it shouldn't.

[00:04:34] Speaker 04:
And if there weren't a section of lexicography in the specification, and if it didn't say this is the definition of speech, I would say it would be an interesting argument, and probably the better of the argument would be that it's permissive and not mandatory.

[00:04:52] Speaker 03:
But when you have a clear mandatory definition in... But that definition says, which includes spoken text.

[00:04:59] Speaker 04:
That's not a definition.

[00:05:00] Speaker 04:
That was simply an example or an embodiment

[00:05:02] Speaker 04:
of the mentioned in the patent.

[00:05:06] Speaker 04:
And this court in Braintree made it clear that even with an embodiment or preferred embodiment, when there's a clear lexicography, that trumps the embodiment language that is at least not irreconcilably inconsistent with the definition.

[00:05:22] Speaker 04:
This is not irreconcilably inconsistent at all.

[00:05:25] Speaker 04:
It is simply permissive.

[00:05:27] Speaker 03:
I want to ask you another question.

[00:05:28] Speaker 03:
Sure.

[00:05:28] Speaker 03:
Because I'm really having a hard time understanding

[00:05:33] Speaker 03:
why this claim construction, why you're not seeking that advisory opinion on this claim construction.

[00:05:39] Speaker 03:
Exactly what issue does this go to?

[00:05:43] Speaker 03:
that's actually properly before us.

[00:05:45] Speaker 04:
The harmful error issue, yes.

[00:05:47] Speaker 04:
Well, as we pointed out, as AVRS pointed out in its preliminary response, Apple did not allege or submit any evidence showing that any of the prior art that it was relying upon satisfied the lexicography definition of speech.

[00:06:02] Speaker 04:
It never made any allegation that any of the prior art

[00:06:06] Speaker 04:
when the word speech was used in the claims, met the lexicography definition.

[00:06:11] Speaker 04:
It only met the alternative one or the other.

[00:06:15] Speaker 04:
It didn't meet the both.

[00:06:16] Speaker 02:
And so therefore, the word speech.

[00:06:18] Speaker 02:
Oh, you go ahead.

[00:06:19] Speaker 03:
Oh, go ahead, please.

[00:06:20] Speaker 02:
I was going to say, isn't the language, though, in the claims speech information request?

[00:06:25] Speaker 02:
Is that the part again?

[00:06:26] Speaker 04:
That's true.

[00:06:26] Speaker 04:
Speech is only one part of the phrase.

[00:06:29] Speaker 04:
But speech is a claim term that was defined in the specification

[00:06:35] Speaker 04:
as recurring both spoken text and embedded text.

[00:06:41] Speaker 02:
So therefore... If you just turn with me to like Claim 15, for example.

[00:06:44] Speaker 04:
Yes.

[00:06:45] Speaker 02:
And when you look at that, it talks about speech information requests and they use the word respectively.

[00:06:51] Speaker 02:
And it mentions formatted spoken text is what I'm seeing here.

[00:06:56] Speaker 02:
And then it has responses, which the way I'm reading that could be related to the formatted transcriptions of the formatted spoken text.

[00:07:04] Speaker 02:
Is that how you interpret it, or are you giving me some different interpretations?

[00:07:09] Speaker 04:
No, well the interpretation is that a speech information request has to be speech in the two ways specified by the definition.

[00:07:18] Speaker 04:
It can't be just one of those ways.

[00:07:20] Speaker 04:
And believe me, if Apple had prior art that disclosed the second formatted text or embedded text example, they would have

[00:07:30] Speaker 04:
said here it is, we wouldn't be here today if that were the case.

[00:07:35] Speaker 04:
So this is an important, there's not just an advisory opinion, there's harmful error because if the PTAP had gotten it right and said yes, speech requires both, it would have then looked at Apple's petition and determined Apple doesn't allege

[00:07:53] Speaker 04:
that any of the prior art that it's citing meets that limitation.

[00:07:58] Speaker 04:
So game over.

[00:07:59] Speaker 04:
We would have been over at the institution phase.

[00:08:02] Speaker 02:
Isn't the plain language, though, here?

[00:08:04] Speaker 02:
And tell me if I'm misreading this.

[00:08:06] Speaker 02:
Isn't the plain language saying speech information requests comprising, and it's using the word respectively, would be the formatted spoken text?

[00:08:14] Speaker 02:
And then it has something different that could correspond to this formatted transcriptions of the formatted spoken text.

[00:08:19] Speaker 02:
Do you see how I'm at least reading that?

[00:08:25] Speaker 04:
Well, the definition applies.

[00:08:28] Speaker 04:
So speech information request means speech means both of those elements, the spoken text and the embedded or formatted.

[00:08:35] Speaker 04:
So this language in the claim is not inconsiderate with the definition.

[00:08:40] Speaker 04:
And you have to read the claim language in view of what the specification teaches.

[00:08:46] Speaker 04:
And the specification clearly teaches that speech

[00:08:49] Speaker 04:
as used in claim 15, requires both spoken text and the formatted text.

[00:08:56] Speaker 04:
So the claim language doesn't trump the definition.

[00:09:00] Speaker 04:
The definition clarifies and straightens out what that language means.

[00:09:06] Speaker 04:
So I don't think this

[00:09:08] Speaker 04:
renders the specification a nuggatory, or you would disregard the definition, you have to read this clean language in light of the definition.

[00:09:17] Speaker 04:
And the definition requires both clearly.

[00:09:19] Speaker 04:
There's no question about that at all.

[00:09:23] Speaker 04:
I hope I answered your question.

[00:09:24] Speaker 04:
Oh.

[00:09:26] Speaker 02:
You're deferring back to her.

[00:09:27] Speaker 02:
Let her finish her question.

[00:09:29] Speaker 02:
I didn't mean to interrupt her.

[00:09:30] Speaker 04:
Yes, Judge Stoller.

[00:09:30] Speaker 04:
Oh, no.

[00:09:31] Speaker 03:
I believe that I had the exact same question.

[00:09:33] Speaker 04:
OK.

[00:09:34] Speaker 04:
All right.

[00:09:34] Speaker 04:
So this is not an advisory opinion.

[00:09:36] Speaker 04:
Because if Pete Tabbott construed the claim properly, it would have had to determine that the petition doesn't allege prior art that discloses this critical element or limitation of the claim.

[00:09:49] Speaker 04:
And so this is not, we're not here for academics.

[00:09:52] Speaker 03:
I do argue this below.

[00:09:53] Speaker 04:
Yes, oh yes, in the preliminary response, Your Honor.

[00:09:58] Speaker 03:
But you know that arguments that are made in the preliminary response, if not carried forward in the institution,

[00:10:07] Speaker 03:
are waived.

[00:10:08] Speaker 04:
That is a statement that the PTAT says about, quote, patentability, close quote, not claim construction.

[00:10:14] Speaker 04:
And this court... Is it claim construction?

[00:10:16] Speaker 03:
Claim construction doesn't stand on its own.

[00:10:18] Speaker 03:
It has to stand for patentability, otherwise it is an advisory at this point.

[00:10:22] Speaker 04:
It's irrelevant to patentability, but this court has been very clear in the area of claim construction, which is a question of law, that if it's been fully briefed by... You do understand that we don't affirm claim construction.

[00:10:34] Speaker 03:
We don't reverse claim construction.

[00:10:37] Speaker 03:
We consider claim construction and we might adopt a lower tribunal's claim construction so that we can decide whether to affirm or reverse patentability determinations, for example.

[00:10:48] Speaker 03:
So I disagree with you on that.

[00:10:52] Speaker 03:
you could not just appeal a claim construction issue without having a patentability issue to go along with it.

[00:10:58] Speaker 03:
Otherwise, it becomes an advisory opinion.

[00:11:00] Speaker 03:
So you run right into my question.

[00:11:02] Speaker 04:
Well, that's true.

[00:11:03] Speaker 04:
The patentability issue is there.

[00:11:05] Speaker 04:
But did you raise it during institution?

[00:11:10] Speaker 04:
Well, yes.

[00:11:11] Speaker 04:
In fact, you'll note, Your Honor, that the PTAB, in its final decision, repeated and doubled down

[00:11:20] Speaker 04:
on its ruling that AVRS's construction and the lexicography, it rejected.

[00:11:25] Speaker 04:
So if it was not an issue before the court and not relevant to the final decision, it wouldn't have been mentioned by the federal or the PTAB in that ruling.

[00:11:35] Speaker 03:
Your view is that even though the claim construction was raised pre-institution, because the board addressed it in its petition in response to a petition for a hearing, that shows that you preserved it.

[00:11:48] Speaker 04:
Well, it addressed it in the final decision as well.

[00:11:52] Speaker 04:
It doubled down, as I call it, on that issue.

[00:11:55] Speaker 04:
It repeated that, yes, we are disregarding the lexicography, and we are holding that it's permissive or alternative and not mandatory.

[00:12:03] Speaker 04:
It said that because it saw the issue was live.

[00:12:06] Speaker 04:
It issued a full opinion on this point.

[00:12:08] Speaker 04:
in the institution decision.

[00:12:11] Speaker 04:
And then again, double down on that.

[00:12:13] Speaker 04:
And this court, it was clear, in Erickson versus TCL, it made it clear that when you have a legal issue like claim construction.

[00:12:21] Speaker 03:
But what about did you make an ability argument post-institution about relying on more narrow interpretation of speech, the one that you're presenting to us today?

[00:12:38] Speaker 04:
Well, we still made the point.

[00:12:40] Speaker 04:
We understood that the court had ruled, or the PTA had ruled against us.

[00:12:44] Speaker 04:
And so this court is- When did it rule against you?

[00:12:47] Speaker 04:
In the institution decision.

[00:12:49] Speaker 03:
OK.

[00:12:49] Speaker 03:
And so when, where did you make it during?

[00:12:54] Speaker 03:
Can you show me, give me a page?

[00:12:58] Speaker 04:
I know that we talked about Cohen and the speech definition.

[00:13:02] Speaker 04:
It's mentioned in there.

[00:13:03] Speaker 04:
But this court, I want to be very clear, this court has not required, in a patent infringement case, in just a court, the party that makes a claim construction argument and where the court has been appraised of it and ruled on it doesn't have to keep raising that issue to make it a preservation of error.

[00:13:22] Speaker 03:
I'm not asking you that question.

[00:13:23] Speaker 03:
I want to make sure you understand my question.

[00:13:25] Speaker 03:
My question is whether you raised a patentability argument that relied on your construction

[00:13:32] Speaker 03:
of speech post-institution?

[00:13:38] Speaker 04:
I do believe we did.

[00:13:39] Speaker 04:
There were two instances where we mentioned the speech construction issue.

[00:13:44] Speaker 04:
It was not argued extensively, obviously, because we had lost on that issue.

[00:13:50] Speaker 04:
And again, this court does not require you to engage in a- Do you have the record sites that we can look at?

[00:13:58] Speaker 04:
I do have my computer.

[00:14:00] Speaker 04:
I don't have it right in front of me, Your Honor.

[00:14:02] Speaker 04:
But there is one or two passages in the response.

[00:14:05] Speaker 04:
Are you going to give them to us on rebuttal?

[00:14:09] Speaker 04:
OK.

[00:14:09] Speaker 04:
I'll do my best to find it right away for you.

[00:14:11] Speaker 04:
Yes, Your Honor.

[00:14:12] Speaker 04:
Yes, Your Honor.

[00:14:12] Speaker 04:
I will do that.

[00:14:13] Speaker 04:
So is my 12 minutes up?

[00:14:19] Speaker 04:
OK.

[00:14:20] Speaker 04:
All right.

[00:14:20] Speaker 01:
Thank you, Your Honor.

[00:14:21] Speaker 01:
I think that's fine.

[00:14:22] Speaker 01:
And we'll take it up in your rebuttal time.

[00:14:24] Speaker 01:
Thank you very much, Your Honor.

[00:14:25] Speaker 01:
OK.

[00:14:27] Speaker 01:
We're OK.

[00:14:32] Speaker 01:
Mr. Matsui.

[00:14:45] Speaker 00:
Thank you, Your Honor, and may it please the court, Brian Matsui for Apple.

[00:14:49] Speaker 00:
The board's decision should be affirmed.

[00:14:51] Speaker 00:
First, I'd like to address why AVRS isn't entitled to relief.

[00:14:54] Speaker 00:
on its claim construction argument, regardless of whether or not this court actually needs to address it.

[00:15:00] Speaker 00:
And then second, to the extent the court has any questions, I would be happy to address the procedural argument, which I understand my friend on the other side didn't actually get to.

[00:15:10] Speaker 02:
Can you address the advisory opinion question that Judge Sol previously raised to opposing counsel?

[00:15:15] Speaker 00:
Certainly, Your Honor, this would be just a pure advisory opinion that AVRS is asking the court to provide.

[00:15:24] Speaker 00:
The board, after institution, warned AVRS that it needed to present any arguments of patentability.

[00:15:33] Speaker 00:
in its patented response at Appendix 360, or else it would be waived.

[00:15:38] Speaker 00:
And that's the identical language this court held in its Broadcom decision from two days ago, where the court said that an issue was waived.

[00:15:47] Speaker 00:
And then AVRS failed to waive any arguments in its patented response.

[00:15:51] Speaker 03:
And the reason- Did they challenge the claim construction and just do that?

[00:15:55] Speaker 03:
Or did they not make any argument as to patentability

[00:16:02] Speaker 03:
in light of their proffered claim construction.

[00:16:05] Speaker 00:
They did challenge the claim construction.

[00:16:07] Speaker 00:
We're not arguing that they waived a claim construction argument.

[00:16:11] Speaker 00:
But as Judge Stoll, as you mentioned, you can't just have an abstract claim construction argument.

[00:16:16] Speaker 00:
This court, from district court cases or cases from the board, it won't address an abstract claim construction argument unless somebody shows that it actually goes to an issue that affects the judgment, such as patentability or in the district court patentability or infringement.

[00:16:30] Speaker 00:
But we know

[00:16:31] Speaker 00:
in this case, that the board did not have any arguments going to patentability with respect to the claim construction issue that they're presenting now because the board expressly said so.

[00:16:42] Speaker 00:
If we look at Appendix 31 for its final written decision, there's a heading that says, Handling Speech Information Requests.

[00:16:52] Speaker 00:
And the first line under that is, For Claimed Speech Information Requests

[00:16:57] Speaker 00:
petitioner asserts that a voicemail message at voicemail 50 server includes spoken text.

[00:17:03] Speaker 00:
And then when you go down to the bottom of that page, it says, patent owner makes no arguments specific to this aspect of the system transaction manager limitation, which is what this is talking about right here.

[00:17:15] Speaker 00:
And then if we go to appendix 28, the board was very clear that it found

[00:17:20] Speaker 00:
At footnote four, any arguments Petner has not raised in its response are waived, and it cites this court's decision in novasive.

[00:17:29] Speaker 00:
And the novasive case is incredibly instructive here, because in that case, there was a public accessibility issue that was raised in the preliminary response.

[00:17:38] Speaker 00:
And then it was not at all raised in the patent owner response, and this court held that that was waived, that that was something that couldn't be addressed by the court.

[00:17:47] Speaker 00:
So that's on all fours with what we have here.

[00:17:50] Speaker 00:
On the precise issue of whether or not the prior art discloses

[00:17:55] Speaker 00:
the claim limitations here, there was no argument that was made that went to the claim construction at all.

[00:18:01] Speaker 00:
And in fact, they didn't present any argument in their opening brief either.

[00:18:05] Speaker 00:
All they did is they said there was a speech limitation.

[00:18:07] Speaker 00:
But they never pointed to what limitation this went to in the claim.

[00:18:11] Speaker 00:
So not only did they forfeit or waive the issue before the board, but they also did so before this court.

[00:18:17] Speaker 00:
Because it wasn't until the reply brief that they finally said, no, this is going to the term speech information request.

[00:18:24] Speaker 00:
in the claims themselves.

[00:18:25] Speaker 00:
But that's too late.

[00:18:26] Speaker 00:
Just as a matter of appellate procedure, it can't be that an appellant can raise the issue in their reply brief after the issue has fully been presented in the opening brief and say, no, this is the argument that we're really trying to present.

[00:18:40] Speaker 02:
And again, if we look at the reply brief... What about the argument that opposing counsel made about speech as a part of the speech information request limitation?

[00:18:50] Speaker 02:
What is your response to that in particular?

[00:18:52] Speaker 00:
Well, I think that that sort of just highlights the problem.

[00:18:55] Speaker 00:
Right now, at oral argument, AVRS is explaining how this speech term relates to the claims themselves.

[00:19:04] Speaker 00:
And that's just too late.

[00:19:05] Speaker 00:
Again, we have a board finding here that they made no argument with respect to speech information requests with respect to the prior art.

[00:19:13] Speaker 00:
And so it's just simply too late to do that.

[00:19:15] Speaker 00:
And the problem with doing it

[00:19:18] Speaker 00:
on appeal, not having done it before the board, is it deprives the petitioner the opportunity to actually respond to the arguments that might be made in the patent owner response.

[00:19:29] Speaker 00:
There was no ability for us to explain why these claims would be unpatentable because they would even under AVRS's construction.

[00:19:37] Speaker 01:
Do you have an answer to the merits?

[00:19:41] Speaker 01:
of this argument that's before us.

[00:19:45] Speaker 00:
Certainly, Your Honor.

[00:19:46] Speaker 00:
I mean, I think that the important thing to look at is we're not fighting that there is a definition in the specification, but the question is what that definition means.

[00:19:54] Speaker 00:
The board at Appendix 17 was very clear that the specification has a definition of speech, that it's spoken text and spoken and embedded commands, but that's not the answer to the question.

[00:20:06] Speaker 00:
The question is what does that definition mean?

[00:20:09] Speaker 00:
And the board said, when it looked at the intrinsic record, what that definition means is that speech encompasses spoken text and spoken and embedded commands.

[00:20:21] Speaker 00:
And when we look at claim 15, as Judge Cunningham, you pointed out, it's very clear that speech information request doesn't have to include spoken and embedded commands.

[00:20:32] Speaker 00:
Because again, if we look at claim 15, it says a system transaction manager, the system transaction manager,

[00:20:39] Speaker 00:
utilizing a uniform system protocol for handling speech information requests and responses to speech information requests.

[00:20:47] Speaker 00:
the speech information requests and responses comprising, respectively, formatted spoken text and formatted transcriptions of the formatted spoken text.

[00:20:57] Speaker 00:
That right there.

[00:20:58] Speaker 03:
So is it all that comprising language is superfluous if the claim, the phrase, speech already includes that information?

[00:21:07] Speaker 00:
It certainly would.

[00:21:08] Speaker 00:
And if we looked at claim one, for example,

[00:21:11] Speaker 00:
You will see at claim one in column 25 at around line 60, it says there's a uniform system protocol adapted to receive a speech information request.

[00:21:22] Speaker 00:
And it doesn't specify which of the three possibilities it is.

[00:21:27] Speaker 00:
And then in claim four, a dependent claim, it says the system of claim one wherein the speech information request comprises formatted spoken text.

[00:21:36] Speaker 00:
Claim four would be entirely superfluous.

[00:21:39] Speaker 00:
if you accepted AVRS's construction, because it would always have to have all three of spoken text and spoken and embedded commands.

[00:21:50] Speaker 00:
And there just would be no reason at all to have that claim language.

[00:21:58] Speaker 00:
In addition, just to briefly note on columns nine and 10 and... Let's talk about the merits.

[00:22:04] Speaker 01:
What difference does it make if they did or don't need claim four?

[00:22:09] Speaker 01:
We really want to be sure that we understand the substantive issues that are properly before us on appeal.

[00:22:19] Speaker 00:
I'm sorry.

[00:22:20] Speaker 00:
Could you repeat the question?

[00:22:21] Speaker 01:
I wanted to encourage you to discuss the substance of the issues that are before us, not whether they did or didn't need claim for.

[00:22:36] Speaker 00:
Certainly, Your Honor.

[00:22:38] Speaker 00:
And I think I was just using that as an illustration.

[00:22:41] Speaker 00:
But on claims 15 and claims 17, I think that on the claim construction issue, if that's what we're talking about here, it's very clear from those claim terms that if you assume that speech information request is what they're talking about, it doesn't have to include spoken text and spoken and embedded commands.

[00:23:01] Speaker 00:
I think that if we look at claims 15 and the next element,

[00:23:07] Speaker 00:
it's talking about at around line 25, the first user application service adapter configured to generate speech information requests from spoken text produced by at least one of the users.

[00:23:22] Speaker 00:
And so again, that's just reinforcing the fact that speech information requests, the speech, doesn't require all three of spoken text and spoken and embedded commands because again, that would be

[00:23:35] Speaker 00:
superfluous about that.

[00:23:38] Speaker 00:
And again, Claim 17 has basically the same type of language.

[00:23:43] Speaker 03:
I do agree that while there is that section in the beginning of the patent that defines speech, there are later sections in the patent that have more language like may include, typically includes, that suggest that that definition doesn't

[00:24:04] Speaker 03:
is that speech may include those three elements, but it doesn't have to have all of them.

[00:24:10] Speaker 03:
I mean, how does that, I think you described it as an interpretation of the interpretation or interpretation of the lexicography and what those words mean.

[00:24:20] Speaker 03:
Is it that situation or is this situation where there is no lexicography because the rest of the specification undermines that definition?

[00:24:30] Speaker 00:
I mean, I think to the extent there is a clear lexicography here, it's the lexicography that the board adopted.

[00:24:37] Speaker 00:
That what you're talking about is that speech basically means that it's spoken text and spoken and embedded commands.

[00:24:44] Speaker 00:
It encompasses that, but doesn't require all of them.

[00:24:47] Speaker 00:
I think if you think of a word like produced, colon, fruits and vegetables.

[00:24:54] Speaker 00:
That right there is defining what produce is, but it doesn't mean that you have to have fruits and vegetables in order to have produce.

[00:25:03] Speaker 00:
Fruits are produce and vegetables are produce.

[00:25:06] Speaker 00:
And so it's the same type of thing.

[00:25:08] Speaker 00:
And so to your point, Judge Stoll, yes, there is plenty of language in the specification

[00:25:13] Speaker 00:
such as in column 17 at line 40 where it says speech information requests, which includes formatted spoken text and perhaps formatted spoken and embedded commands, it's showing that it doesn't have to include all three.

[00:25:27] Speaker 00:
What you won't find anywhere in the specification is any indication that there is a requirement that you have all three of spoken text and spoken and embedded commands.

[00:25:40] Speaker 00:
That's just nowhere to be found.

[00:25:42] Speaker 00:
anywhere in the patent itself, making all three of these mandatory.

[00:25:52] Speaker 00:
If the court has no questions about the procedural issue, we would ask the court to affirm.

[00:26:03] Speaker 01:
Any more questions?

[00:26:04] Speaker 01:
Thank you, Mr. Masuri.

[00:26:14] Speaker 04:
Yes, I was able to find that, fortunately, thanks to the iPhone.

[00:26:21] Speaker 04:
In paper 20, which is the patent owner's response, at page 17, the patent owner argued that Cohen... What appendix page are you on?

[00:26:29] Speaker 04:
I don't have the appendix number, just the paper number, sorry.

[00:26:32] Speaker 04:
It's in the patent owner's response.

[00:26:34] Speaker 04:
at page 17, I don't have that appendix number handy, I apologize.

[00:26:41] Speaker 04:
It says, nor does Cohn contemplate the creation of speech information requests, which of course we had previously argued unsuccessfully that speech means all three.

[00:26:53] Speaker 04:
And by the way, the

[00:26:55] Speaker 04:
Council for Apple is just simply wrong.

[00:26:57] Speaker 04:
The definition of speech in the lexicography says it means spoken text and spoken and embedded commands.

[00:27:07] Speaker 03:
What is your response to his analogy to produce and vegetables and fruit?

[00:27:11] Speaker 04:
Well, it's rotten vegetables, because this is the clear language.

[00:27:16] Speaker 04:
When he said that there is no language in the specification that mandates all three, I would just point to the actual lexicography that we rely on, which says all three, and, and.

[00:27:29] Speaker 04:
It doesn't say or, or may, or include, or tends to be.

[00:27:33] Speaker 02:
What about all the other passages that Judge Stoll walked you through where it said, like, perhaps, or typically, or may?

[00:27:38] Speaker 04:
Yes, but they don't.

[00:27:41] Speaker 04:
They're not irreconcilably inconsiderate with this.

[00:27:43] Speaker 04:
They talk about it may include, it doesn't say mandatory, but there are seven passages that say and, and, and all the way through.

[00:27:51] Speaker 04:
It says the present invention involves or includes the speech as mandatorily specified in the lexicography.

[00:27:59] Speaker 04:
So when the patent says the present invention, this court generally gives that some pretty important weight in the claim construction

[00:28:08] Speaker 04:
uh... analysis you first start out with the lexicography which is clear nobody questions that is is clear unambiguous and it specifies all three so that's an important uh... distinction between what what council has told you that's just not true secondly uh...

[00:28:27] Speaker 04:
Broad, calm, and invasive are distinguishable easily because there, the appellant never even made the argument in the court below.

[00:28:34] Speaker 04:
They didn't even raise the issue.

[00:28:35] Speaker 04:
Here, it was raised, fully briefed, fully decided by the PTAB.

[00:28:41] Speaker 04:
And therefore, this court has the full benefit of the PTAB's analysis of the issue and has to claim for

[00:28:48] Speaker 04:
or their spin on claim 15, no one addressed claim 15 based upon the clear lexicography.

[00:28:56] Speaker 04:
So when they try to say that it doesn't matter whether you apply the lexicography or not, well we don't know because that was never addressed because the court, the PTAM, ruled very early on in the institution decision that the lexicography didn't apply.

[00:29:13] Speaker 04:
So that is just speculation on Apple's part.

[00:29:16] Speaker 04:
And furthermore, the argument that we didn't raise this issue about harm until the reply brief is, again, wrong.

[00:29:24] Speaker 04:
If you look at page 18 of our opening brief, in bold letters we say, because Apple did not contend or submit any evidence showing that the asserted prior art discloses speech limitation in the claims

[00:29:37] Speaker 04:
in dispute, the court should reverse the P tab to judgment.

[00:29:40] Speaker 02:
So we said in our very opening brief... How do you respond to Apple's argument that the comprising clause would be superfluous if we accept your interpretation here of speech?

[00:29:55] Speaker 04:
You know, it could be, and I guess my answer is so what when the patent clearly says this is what this term means.

[00:30:06] Speaker 04:
definition that lexicography should be applied.

[00:30:09] Speaker 04:
And if it does render some clean language superfluous, it doesn't render it superfluous as if it cuts it out.

[00:30:16] Speaker 04:
So it isn't rendering it nugatory.

[00:30:19] Speaker 04:
It's just saying, yeah, that is redundant of the lexicography.

[00:30:26] Speaker 04:
But that, so what?

[00:30:27] Speaker 04:
I mean, the lexicography trumps

[00:30:31] Speaker 04:
and should govern, and it's not inconsistent with it.

[00:30:34] Speaker 04:
If it was inconsistent, that would be a problem.

[00:30:37] Speaker 03:
I have a question for you.

[00:30:38] Speaker 03:
I found your site.

[00:30:39] Speaker 03:
It's JA413 is the page.

[00:30:44] Speaker 03:
But I'm having a little bit of a trouble because that page doesn't relate to the grounds on which the PTAB found the claims unpatentable.

[00:30:54] Speaker 03:
And I don't see where it makes an argument based on the definition of speech.

[00:30:58] Speaker 04:
Well, Your Honor, I guess I go back to the fundamental point that when you're dealing with a claim construction issue, when it's been fully briefed and fully decided by the lower court, you are not required to repeat that argument every time it could appear down the road.

[00:31:16] Speaker 04:
In the patent infringement case, we don't ask parties to repeat their claim.

[00:31:21] Speaker 03:
There's a specific rule in the PTAB that says if you're going to make a patentability argument,

[00:31:27] Speaker 03:
institution.

[00:31:29] Speaker 03:
If you don't make it post institution, you've waived it.

[00:31:33] Speaker 04:
But that's in cases where there's not a question of law that's already been firmly decided.

[00:31:37] Speaker 04:
And again, if it was a debt issue or if the PTAB thought that didn't apply anymore, it wouldn't have, again, doubled down.

[00:31:45] Speaker 03:
You understand.

[00:31:45] Speaker 03:
You've got a claim construction argument.

[00:31:46] Speaker 03:
Nobody is saying that you waived your claim construction argument.

[00:31:49] Speaker 03:
The only argument or assertion, and it was found by the board, is that you didn't make a patentability argument based on that claim construction.

[00:31:58] Speaker 03:
during institution.

[00:32:00] Speaker 04:
And that statement by Apple is wrong.

[00:32:02] Speaker 04:
It is incorrect.

[00:32:03] Speaker 04:
That finding by the board is incorrect.

[00:32:10] Speaker 04:
They tried to argue that the board found that we didn't make any argument based upon speech.

[00:32:15] Speaker 04:
That's not true.

[00:32:16] Speaker 04:
The handling issue was, it said, as to this specific issue, it clearly said that this specific issue, AVRS, the patent owner, did not make a patentability argument.

[00:32:29] Speaker 04:
That was as to that specific issue, handling of speech information requests.

[00:32:35] Speaker 04:
And so the PTAB was very clear when it said that.

[00:32:38] Speaker 04:
It was talking about this specific issue.

[00:32:43] Speaker 03:
It says patent owner makes no arguments specific to this aspect of the system transaction manager.

[00:32:49] Speaker 03:
Yes.

[00:32:49] Speaker 03:
And it's handling speech information.

[00:32:51] Speaker 04:
But it was about the handling aspect of it, not the speech aspect of it.

[00:32:55] Speaker 04:
So we didn't make an argument about handling.

[00:32:56] Speaker 04:
We made an argument about speech.

[00:32:58] Speaker 04:
And that was separate.

[00:32:59] Speaker 04:
So that citation by Apple is incorrect, in my view, with all due respect to learned counsel.

[00:33:05] Speaker 04:
I think I've exceeded my time by a good bit, unless the court has anything else.

[00:33:10] Speaker 04:
But OK, thank you very much.

[00:33:14] Speaker 01:
Thank you.

[00:33:15] Speaker 01:
Thanks to both counsel.

[00:33:18] Speaker 01:
The case is taken under submission.