[00:00:00] Speaker 05:
Our first case is Zell Spinsoft versus Cannon and Darman by 2020-1947.

[00:00:07] Speaker 05:
Mr. Gottheisen, please proceed.

[00:00:13] Speaker 00:
Thank you, Your Honor.

[00:00:21] Speaker 00:
May it please the court.

[00:00:25] Speaker 00:
I'm here on behalf of Self-Spend to reverse the decision of the board.

[00:00:31] Speaker 00:
And this appeal 20-1947 is also related to a companion appeal 20-1948.

[00:00:48] Speaker 00:
And with that, I just want to start by saying that I know I don't have time to address all the issues, and in particular, some of the constitutional law issues.

[00:00:58] Speaker 00:
So in light of Arthur X2 and New Vision Gaming recently from the court, we're going to rest on our papers with respect to the constitutional law issues.

[00:01:08] Speaker 00:
What we do want to focus on here today, though, is claims five and eight and the disputed term paired wireless connection with respect to

[00:01:18] Speaker 00:
the term paired wireless connection.

[00:01:21] Speaker 00:
In essence, the board didn't construe it correctly.

[00:01:25] Speaker 00:
And the reason why is they kind of have a circular argument about Bluetooth.

[00:01:32] Speaker 00:
They seem to understand that the specification relies heavily on Bluetooth to enable what was known in the art at the time.

[00:01:40] Speaker 00:
This situation happened in 2007 when this application was filed.

[00:01:47] Speaker 00:
And in 2007, there was no app store.

[00:01:50] Speaker 00:
There was no Android store.

[00:01:55] Speaker 00:
And you still had flip phones, flip phones with screens, not GUIs.

[00:02:01] Speaker 00:
And that's important because, as you'll see, the board eventually doesn't address all the issues.

[00:02:14] Speaker 00:
With respect to the definition of pairing, what we have is a situation where they need to define what pairing is in a way that doesn't include everything that's a wireless connection.

[00:02:28] Speaker 00:
So they basically read out the word pairing.

[00:02:31] Speaker 04:
Can I ask you, is it possible for there to be a wireless connection without an advance agreement?

[00:02:43] Speaker 04:
Yes.

[00:02:44] Speaker 04:
Without a mutual agreement.

[00:02:45] Speaker 04:
Yes.

[00:02:46] Speaker 00:
Yes.

[00:02:47] Speaker 04:
So that mutual agreement is part of the claim construction.

[00:02:50] Speaker 04:
Am I remembering that right?

[00:02:54] Speaker 00:
It is.

[00:02:54] Speaker 04:
So why doesn't that run counter to your suggestion that the board read pairing out of the claim?

[00:03:06] Speaker 04:
Because it's not just any connection.

[00:03:09] Speaker 04:
It's one in which there's mutual agreement, which you said doesn't have to be the case for there to be a connection.

[00:03:15] Speaker 00:
Thank you, Judge Taranto, for that question.

[00:03:18] Speaker 00:
And it's an excellent one.

[00:03:20] Speaker 00:
And with pairing, you have to be able to connect and reconnect.

[00:03:24] Speaker 00:
And that's the problem with the court's construction.

[00:03:27] Speaker 00:
They act like that's an additional limitation.

[00:03:31] Speaker 00:
And under BRI, they say, well, we don't want to read that additional limitation that has to be able to connect and reconnect into the definition of pairing, because the specification doesn't support it.

[00:03:42] Speaker 00:
But this specification was written for a person of ordinary skill in the art.

[00:03:52] Speaker 00:
And it was done in 2007.

[00:03:55] Speaker 00:
And we have the honor to have the Bluetooth CEO of the standard that was over the Bluetooth standard during this period.

[00:04:06] Speaker 00:
And he explained that pairing was optional.

[00:04:10] Speaker 00:
And to your initial question, can you have a wireless connection?

[00:04:13] Speaker 00:
Yes.

[00:04:14] Speaker 00:
And there's other ways to send out

[00:04:17] Speaker 00:
without it being paired via Bluetooth, like the beacon, as we mentioned in our papers.

[00:04:22] Speaker 02:
I just want to make sure I understand your answer to Judge Taranto's question.

[00:04:26] Speaker 02:
As I understand it, you argue the board's construction reads the word paired out of the claim term.

[00:04:32] Speaker 00:
Yes.

[00:04:33] Speaker 02:
But you've conceded that the board's requirement requires mutual agreement between the two things that are talking to each other.

[00:04:41] Speaker 00:
That's step one.

[00:04:42] Speaker 02:
OK, but why is that not at least responsive fully to your contention that paired is read out of the term by the board?

[00:04:53] Speaker 00:
Because as examples we give out in our table,

[00:05:00] Speaker 00:
It would include way too many communications.

[00:05:04] Speaker 00:
It's so broad that it encompasses everything.

[00:05:06] Speaker 00:
Therefore, it's just a wireless connection.

[00:05:09] Speaker 00:
The connection itself is between two devices that want to talk.

[00:05:12] Speaker 02:
OK, but it doesn't include when two devices haven't previously agreed that they want to talk, right?

[00:05:21] Speaker 02:
I think that was your answer.

[00:05:23] Speaker 02:
There has to be mutual agreement.

[00:05:25] Speaker 00:
No, there doesn't have to be mutual agreement.

[00:05:28] Speaker 02:
Well, under the board's construction, there does, right?

[00:05:30] Speaker 02:
Isn't that part of the board's construction?

[00:05:32] Speaker 00:
It's part of the board's construction.

[00:05:33] Speaker 00:
But again, being able to store information, to be able to connect and reconnect, and even in that, to be able to identify who it is, you need to have something stored already.

[00:05:45] Speaker 00:
So whether you want to address it the back way, but you still have to know something about that device to be able to connect with it again.

[00:05:52] Speaker 00:
And that was very common in the art.

[00:05:55] Speaker 00:
And real quick on that, our proposed construction says it has to provide for encrypted data exchange.

[00:06:02] Speaker 00:
It doesn't mean that it has to do it, but it has to be able to do it.

[00:06:06] Speaker 00:
And that goes back to connections that are secure and unsecure, but they're both paired.

[00:06:11] Speaker 00:
Paired, authentication, cryptographic, they're all separate meanings, all terms have different meanings.

[00:06:20] Speaker 00:
without being able to reconnect, without establishing the node, then you just basically can't get back to the device.

[00:06:34] Speaker 02:
The board was supposed to give us the broadest reasonable interpretation of this term, right?

[00:06:41] Speaker 02:
Correct, under BRI.

[00:06:43] Speaker 02:
And I think we'll all agree it was broad, but what makes it unreasonable?

[00:06:48] Speaker 00:
is that it includes too much.

[00:06:51] Speaker 00:
It reads out the word pairing.

[00:06:53] Speaker 00:
And for pairing, I think it's best addressed when we talk about

[00:07:01] Speaker 00:
how you need to store some information so that you can reconnect again.

[00:07:06] Speaker 00:
So the ability to connect and reconnect, whether it's your nowadays, you know, in hindsight it seems very obvious, but at the time, you know, your headphones set or even your car is syncing up to your phone, it has to be able to remember that.

[00:07:21] Speaker 00:
And that's only because it has stored a certain pin or certain additional information about that note.

[00:07:28] Speaker 00:
Before I run out of time, I want to get to the other

[00:07:32] Speaker 00:
So the term we just talked about, that impacts all the claims.

[00:07:37] Speaker 00:
But claims five and eight, we have a real problem here.

[00:07:41] Speaker 00:
And it's been already addressed.

[00:07:42] Speaker 00:
So what I mean by that is it's been addressed in NRA VARMA.

[00:07:48] Speaker 00:
So claims five and eight need to be found valid.

[00:07:54] Speaker 00:
And the board needs to be reversed on the basis of NRA VARMA.

[00:07:59] Speaker 00:
And what we have here is a mobile software application.

[00:08:03] Speaker 00:
And we appreciate the opportunity to be heard today on this issue by an Article III panel.

[00:08:12] Speaker 00:
And basically, after SAS, the Supreme Court mentioned or indicated that the PTAB board has to deal with the petition that they get.

[00:08:32] Speaker 00:
create the petition they want to address.

[00:08:34] Speaker 00:
So they have to address all the claims, and they have to address all the arguments that are made in that IPR.

[00:08:40] Speaker 00:
Here we're dealing with two IPRs, one with Panasonic, one with Canon.

[00:08:44] Speaker 00:
But with respect to Canon, the board starts to kind of shift the arguments.

[00:08:52] Speaker 00:
And we explain this as we go through.

[00:08:56] Speaker 00:
And what I mean by that is they don't address

[00:09:02] Speaker 00:
clear dispute on whether a mobile software application involves one or more or just one mobile software application.

[00:09:12] Speaker 00:
If you look at the claim language in context, as Judge Toronto pinned in Ray Varma, you'll see that... That's the one about the dog and the tricks?

[00:09:26] Speaker 00:
That's right, yes.

[00:09:29] Speaker 00:
And the dog's

[00:09:30] Speaker 00:
got to be able to do more than one, let's say, task.

[00:09:34] Speaker 00:
Yes.

[00:09:34] Speaker 00:
And so here, one single mobile application has to do all six tasks.

[00:09:40] Speaker 00:
And that's not what we have here in the prior art.

[00:09:47] Speaker 00:
So the prior art can't be used to then invalidate this

[00:09:54] Speaker 00:
Claims five and eight.

[00:09:56] Speaker 04:
Did the board find that even under your view that a single application has to do all of the listed things that the prior art taught that?

[00:10:15] Speaker 00:
The board found that, but it's unclear how they could find that because they mentioned Hirashi

[00:10:24] Speaker 00:
being able to do all the different elements, but they leave out Takahashi.

[00:10:32] Speaker 00:
And they also, if you look at the opposition at page 42, or the response of Cannon at page 42, they have a quote at the bottom.

[00:10:47] Speaker 03:
This is in the Red Bridge?

[00:10:50] Speaker 00:
Yes.

[00:10:51] Speaker 00:
And it's appendix 241 that they're citing.

[00:10:55] Speaker 00:
And basically, they're citing the claim language of claim five.

[00:10:57] Speaker 00:
The problem is it's not complete.

[00:11:00] Speaker 00:
And that's where it all kind of goes awry.

[00:11:02] Speaker 00:
But ultimately, the board doesn't address the GUI to delete.

[00:11:12] Speaker 00:
And earlier, I got ahead of myself, and I was talking about how in 2007, again, there's no app store.

[00:11:19] Speaker 00:
You have a flip phone that has a screen.

[00:11:21] Speaker 00:
A GUI is a phone that you can interact with.

[00:11:25] Speaker 00:
And you touch it, and GUI to delete means that you interact with the graphical user interface to make the files that you now uploaded, deleted, not on the phone, but on the actual camera.

[00:11:47] Speaker 00:
And stepping back from all this, there was no

[00:11:51] Speaker 00:
You know, teaching to really combine these things at the time was very novel.

[00:11:55] Speaker 00:
And adding an additional step of instead of just going straight from the camera, you go to a phone first and then to the internet was very novel.

[00:12:05] Speaker 05:
Counsel, you're well into your rebuttal time.

[00:12:07] Speaker 05:
You can use it or continue.

[00:12:10] Speaker 05:
Save it or continue as you wish.

[00:12:14] Speaker 00:
Thank you, Your Honor.

[00:12:15] Speaker 00:
One last point I want to make.

[00:12:18] Speaker 00:
The board's decision fails to even mention or discuss the sixth element, this GUI to delete.

[00:12:24] Speaker 00:
And that's reversible.

[00:12:26] Speaker 00:
That's what I wanted to point out.

[00:12:29] Speaker 00:
And I believe that because at the bottom of page 42, it's truncated when Cannon cites the appendix 241.

[00:12:41] Speaker 00:
So looking at table A, it's clear that they relied on more than just

[00:12:46] Speaker 00:
this one piece of prior art.

[00:12:50] Speaker 00:
And in closing, I just want to say that I appreciate the opportunity to be here.

[00:12:59] Speaker 00:
And Judge Laurie, I had the honor to not clerk with you a long time ago, but interview.

[00:13:05] Speaker 00:
And it meant a lot.

[00:13:08] Speaker 00:
So it's nice to be here 20-something years later.

[00:13:11] Speaker 00:
Thank you.

[00:13:12] Speaker 05:
Thank you, Mr. Godheiser.

[00:13:15] Speaker 05:
Mr. Newton.

[00:13:17] Speaker 05:
Please proceed.

[00:13:18] Speaker 06:
Thank you.

[00:13:19] Speaker 06:
My name's Jared Newton.

[00:13:20] Speaker 06:
May it please the court?

[00:13:21] Speaker 06:
I'm here for the appellees.

[00:13:23] Speaker 06:
I've divvied up time with counsel for the intervener, and so I'm going to have 10 minutes in my argument.

[00:13:29] Speaker 06:
I'll start with the first issue that was discussed, which is the board's construction of paired wireless connection.

[00:13:35] Speaker 06:
I think it's important to understand the two things that the board did here first.

[00:13:39] Speaker 06:
They rejected Selston's construction.

[00:13:41] Speaker 06:
They correctly rejected it because it was trying to violate a basic principle of claim construction law, which is we don't read limitations.

[00:13:48] Speaker 06:
We don't go pick them out of the law.

[00:13:51] Speaker 06:
specification itself or out of extrinsic evidence, which Cellspin did here, and then read them into the claim language absent a clear lexicography disavowal of their definitional language that requires you to do that.

[00:14:04] Speaker 06:
There is none of that in the specification or in the extrinsic evidence here, as the board correctly found.

[00:14:09] Speaker 06:
First, they explained that Cellspin's construction, these two features that they were trying to read into the claims and the specification, are taken directly from the Bluetooth standard.

[00:14:19] Speaker 06:
But the specification very clearly says the claims and this pairing process is not limited to Bluetooth.

[00:14:25] Speaker 06:
So that was strike one.

[00:14:26] Speaker 06:
Strike two, the board looked at this idea of, well, is there some basis to read in the requirement of providing for encrypted data exchange?

[00:14:35] Speaker 06:
They looked at the claims.

[00:14:36] Speaker 06:
There's nothing about encryption of data.

[00:14:37] Speaker 06:
It talks about the data that's transmitted between the phone and the camera.

[00:14:41] Speaker 06:
But it doesn't ever say that data needs to be encrypted.

[00:14:43] Speaker 06:
And the specification is the same thing.

[00:14:45] Speaker 06:
It mentions encryption once, but that's a completely different discussion.

[00:14:48] Speaker 06:
It's unrelated to pairing.

[00:14:51] Speaker 06:
And for reference, that's in column 10, line 60.

[00:14:55] Speaker 06:
And then the third strike is that the board did the same thing with respect to Selspin's argument that you need to build in this requirement of connection and reconnection.

[00:15:03] Speaker 06:
They again looked at the claims, said they focus on the initial pairing process.

[00:15:07] Speaker 06:
They're not concerned with connecting and reconnecting over and over again.

[00:15:11] Speaker 06:
So we're not going to read that limitation into the claims.

[00:15:14] Speaker 06:
So the board was correct in rejecting cell spends construction.

[00:15:17] Speaker 06:
And even if we can look beyond the intrinsic record, we can see that the extrinsic evidence doesn't support cell spends construction either.

[00:15:24] Speaker 06:
They pointed to the Bluetooth standard.

[00:15:26] Speaker 06:
And again, that's improper because the specification says it's not limited to Bluetooth.

[00:15:31] Speaker 06:
But even the two features they pulled out of that standard are not mandatory features within Bluetooth.

[00:15:37] Speaker 04:
Can I just ask this?

[00:15:42] Speaker 04:
The term pairing, at least to this reader, doesn't have a self-evident meaning about what that means other than communicate with.

[00:15:54] Speaker 04:
It suggests it means something more than communicate with.

[00:15:58] Speaker 04:
So we're not in the realm

[00:16:01] Speaker 04:
of a needing lexicography or clear disclaimer, we would look at the spec to tell us something about what the understood meaning of the term pairing is, unless, you know, there were, you know,

[00:16:19] Speaker 04:
clear extrinsic evidence about the usage of that term in the field, and I don't think we've been presented with evidence about that.

[00:16:26] Speaker 04:
So you would look at the spec, and the spec maybe focuses on Bluetooth.

[00:16:30] Speaker 04:
Even if it's not limited to Bluetooth, what it says about Bluetooth might actually be the most informative thing about what the more general term pairing meant.

[00:16:41] Speaker 06:
So I don't disagree with that as a general matter.

[00:16:45] Speaker 06:
The specification certainly describes implementation of the invention in Bluetooth and then goes on to say, hey, you can use these other technologies.

[00:16:52] Speaker 06:
But the way I think about it and the way the board thought about it is that the Bluetooth is the how.

[00:16:59] Speaker 06:
How do you do pairing in Bluetooth?

[00:17:02] Speaker 06:
But the what is what is pairing?

[00:17:04] Speaker 06:
And that's where the board pointed to that passage in the specification.

[00:17:06] Speaker 06:
It's column three, line 60 through 63, and they said,

[00:17:10] Speaker 06:
pairing, the baseline of pairing is this mutual agreement between the two devices that want to communicate.

[00:17:16] Speaker 06:
That support is taken directly out of the spec, so it's consistent with the spec.

[00:17:20] Speaker 06:
It's consistent with Bluetooth, to your point, which is Bluetooth is informative for understanding what pairing means.

[00:17:26] Speaker 06:
It's just not

[00:17:28] Speaker 06:
XYZ features that I find in the Bluetooth standard necessarily have to be incorporated into pairing.

[00:17:33] Speaker 04:
And that's what the board... I guess the thought that was in my mind is that the crucial thing is what the spec either does or doesn't do by way of support for the board's mutual agreement.

[00:17:44] Speaker 04:
understanding and the idea that that mutual agreement understanding does give some meaning to the term.

[00:17:52] Speaker 04:
It's not so much that the various proposals that the patent owner suggested were wrong.

[00:18:02] Speaker 04:
You can't limit the inquiry, the challenge to the claim construction, to the reasons that the board

[00:18:12] Speaker 04:
Rejected the patent owner's proposal.

[00:18:15] Speaker 06:
I understand and that's why I started with kind of there were two things they did they rejected sell spins construction Which is was very clear they weren't going to import those two requirements But then they provided extensive support for their mutual agreement construction They pointed to column three of the specification was described it in the context of Bluetooth.

[00:18:32] Speaker 06:
They also went on to say that

[00:18:34] Speaker 06:
Bluetooth has various ways you can pair.

[00:18:37] Speaker 06:
Bluetooth, one of them is a passkey, for example.

[00:18:39] Speaker 06:
At appendix 14, the board said, OK, if you're using a passkey, yes, that's one way you've established pairing, if you have the exchange.

[00:18:46] Speaker 06:
But it also said, we're not going to do what Stealthspin's asking us to do and read in these additional requirements, because the baseline of pairing

[00:18:53] Speaker 06:
is this mutual agreement.

[00:18:56] Speaker 04:
What's the concrete technical thing that mutual agreement does?

[00:19:03] Speaker 06:
So there's very helpful extrinsic evidence to explain this.

[00:19:07] Speaker 06:
It's an appendix 2746.

[00:19:09] Speaker 06:
It's the Zigbee standard, which is one of the standards that the specification specifically covers for this pair to establish this paired arrangement.

[00:19:18] Speaker 06:
What the Zigbee standard does is it first provides a pretty clear statement that pairing is the process by which devices establish bidirectional communication links with other devices and then it goes on to talk about this concept of mutual agreement where you have one device saying, hey, I want to talk to you and the other device responding and saying, okay, yeah, you can communicate with me, we'll exchange information.

[00:19:38] Speaker 06:
And the technical importance of that mutual agreement is that I'm communicating with who I want to communicate with and I don't have outsiders coming in and just trying to interrupt our conversation or send me something, information or data that I don't want.

[00:19:54] Speaker 06:
And the Zigbee standard talks about it in the context of pairing a television with a remote control.

[00:19:59] Speaker 06:
If I'm at my house and I have the television on, I know my remote control is going to, because it's paired with my television, it's going to allow me to change the channel.

[00:20:08] Speaker 06:
But a friend can't come over with their own remote control and try to take over my TV and change the channel because they're not paired.

[00:20:14] Speaker 06:
That's the mutual agreement that I have with the TV that my friend does not.

[00:20:20] Speaker 03:
Did the board cite this as exhibit 2003?

[00:20:23] Speaker 06:
Yes, the board cited it at appendix 16.

[00:20:28] Speaker 06:
So in summary, we think the board's construction of paired wireless connection is correct.

[00:20:36] Speaker 06:
There's no argument in the briefing from Selsman that the prior RART does not meet the board's construction, does not disclose a paired wireless connection under the board's construction.

[00:20:46] Speaker 06:
In any event, it's a substantial evidence standard.

[00:20:48] Speaker 06:
The board cited extensive evidence to explain why both references we relied on as primary references, Hiroshi and Holstrom, disclose a paired wireless connection.

[00:20:58] Speaker 02:
Did the board analyze whether there was substantial evidence for obviousness if one were to adopt the construction of the patent owner?

[00:21:06] Speaker 06:
The board did not get into that.

[00:21:09] Speaker 06:
So I think, fairly, if the panel were to adopt Sellspin's construction, remand would probably be the appropriate.

[00:21:17] Speaker 06:
I do think there's enough evidence in the record here.

[00:21:19] Speaker 06:
We had a reply brief where we did address Sellspin's construction, and it's basically

[00:21:24] Speaker 06:
It's obvious to use Bluetooth.

[00:21:25] Speaker 06:
We have expert testimony documents to support that.

[00:21:28] Speaker 06:
So I think there's plenty of evidence in the record.

[00:21:30] Speaker 06:
But understand if a remand would be the appropriate course.

[00:21:34] Speaker 06:
Turning to claims five and eight.

[00:21:36] Speaker 06:
This argument was limited to the legal question of the claim construction about whether A should be interpreted as one or more consistent with the general rule that we see in the KCJ case and Baldwin graphics.

[00:21:50] Speaker 06:
Before getting to that, I want to explain that in this case, you really don't need to get there.

[00:21:56] Speaker 06:
And there's two reasons why.

[00:21:57] Speaker 06:
As I mentioned, we had two primary references that we relied on in the proceeding below.

[00:22:02] Speaker 06:
We had Hiroshi, Grounds 1 through 4, Holstrom, Grounds 5 through 6.

[00:22:07] Speaker 06:
Our petition said, for both references, they meet all the limitations of claims 5 and 8.

[00:22:12] Speaker 06:
We provided expert testimony on the point.

[00:22:14] Speaker 06:
We cited passages.

[00:22:16] Speaker 06:
And we said that they meet it under the plain language of the plain, so under this concept that Salspin wants to advance that A should be limited to singular.

[00:22:27] Speaker 06:
With respect to Holstrom, Holstrom has almost the exact same figure that we see in the 698 patent.

[00:22:35] Speaker 04:
Did the board make a finding to the effect that Holstrom teaches this limitation even under self-spends construction?

[00:22:48] Speaker 06:
It made a finding that it was undisputed under Sellspin's construction, because Sellspin never challenged the Holstrom reference.

[00:22:55] Speaker 06:
They couldn't, because figure two of Holstrom, it's at appendix 1363, has the same client application with submodules inside of it that's in figure two of the 698 patent.

[00:23:07] Speaker 06:
And Selsman had the opportunity to address that in their patent owner response and in their reply brief, they didn't.

[00:23:14] Speaker 04:
Right.

[00:23:15] Speaker 04:
Ordinarily, to what the board said, it is undisputed that Hallstrom

[00:23:22] Speaker 04:
teaches a single, what's the word, program application?

[00:23:27] Speaker 06:
Software application.

[00:23:28] Speaker 04:
Application that performs all of the listed functions.

[00:23:33] Speaker 06:
I think they said it in the context of claims five and eight.

[00:23:35] Speaker 06:
They didn't go to each limitation by limitation.

[00:23:40] Speaker 06:
But they said, here are the limitations that are not disputed.

[00:23:43] Speaker 06:
That is how the section of their final written decision was to basically say, here's where the disputes are.

[00:23:49] Speaker 06:
We're resolving them.

[00:23:50] Speaker 06:
Here's what's not disputed.

[00:23:55] Speaker 06:
in the site to the waiver, which is appendix

[00:24:04] Speaker 06:
It's appendix 598 through 599.

[00:24:08] Speaker 06:
Basically, I think it was because Holstrom was our second reference.

[00:24:11] Speaker 06:
Self-spend didn't spend as much time on it.

[00:24:13] Speaker 06:
So they provided two pages of analysis in their page.

[00:24:16] Speaker 04:
What pages of the board's opinion should I be looking at to see what you're saying the board said?

[00:24:24] Speaker 06:
Sure.

[00:24:29] Speaker 06:
It's appendix 55 through 56, where they identified the waiver on the part of self-spent.

[00:24:36] Speaker 06:
And they say patent owner's argument does not differentiate between the independent claims.

[00:24:42] Speaker 06:
So they didn't present any claims that were different or any arguments that were different for claims five and eight that they hadn't presented for claim one.

[00:24:52] Speaker 05:
Council, as you see, your time is up.

[00:24:56] Speaker 05:
And we'll hear from the government now.

[00:24:59] Speaker 06:
Thank you, Your Honors.

[00:25:07] Speaker 01:
Good morning, Your Honors.

[00:25:08] Speaker 01:
May it please the court, Josh Handel on behalf of intervenor Kathy Vidal.

[00:25:12] Speaker 01:
For the reasons set out in our briefs and our two recent 28-J letters, the limited issues on which the government is participating in this litigation are either squarely foreclosed by recent circuit precedent, administratively forfeited, or otherwise meritless.

[00:25:27] Speaker 01:
I'm happy to address any questions that the court may have about the constitutional or APA issues.

[00:25:33] Speaker 04:
Which issues, if any, are not covered by our most recent Arthrex Plus mobility works?

[00:25:40] Speaker 01:
Absolutely, Your Honor.

[00:25:42] Speaker 01:
So I believe the outstanding issues are the APA issues relating to the proceedings on remand, specifically the promulgation of guidance for seeking director rehearing.

[00:25:56] Speaker 04:
The argument that there had to be a formal regulation.

[00:26:00] Speaker 04:
for that process to occur?

[00:26:01] Speaker 01:
Correct, Your Honor.

[00:26:02] Speaker 01:
That argument, the director's use of an advisory committee to solicit advice from subordinates with respect to rehearing requests, and then the absence of a standalone statement of reasons accompanying the denial of director rehearing.

[00:26:18] Speaker 04:
The argument about using advisors to resolve particular petitions for rehearing or advisors to determine what the process should be.

[00:26:28] Speaker 01:
using advisors to resolve particular petitions for a year.

[00:26:33] Speaker 01:
I'm happy to address any of those in greater depth if the panel has questions.

[00:26:38] Speaker 01:
Otherwise, we'll rest on our submissions and respectfully request that you deny Salspin's challenges to the PTO's procedures.

[00:26:44] Speaker 01:
Thank you.

[00:26:45] Speaker 05:
Thank you, counsel.

[00:26:46] Speaker 05:
And Mr. Newton, since your joint time has not been exhausted as appellee, do you have anything further you wish to say?

[00:27:00] Speaker 06:
Thank you, Judge Lori.

[00:27:01] Speaker 06:
I will make just two more quick points on the Claim 5 and 8 argument.

[00:27:06] Speaker 06:
With respect to Hiroshi, which was the second reference, so Seltsman waived his arguments with respect to Holstrom.

[00:27:13] Speaker 06:
With respect to Hiroshi, the second reference, they did make an argument under Claims 5 and 8.

[00:27:19] Speaker 06:
But the board found that there was substantial evidence that Hiroshi discloses a mobile software application.

[00:27:26] Speaker 06:
to the same extent that the 698 patent discloses it.

[00:27:29] Speaker 06:
And so that's a substantial evidence finding under Selsman's proposed interpretation of the claims.

[00:27:35] Speaker 04:
It's a finding that we review for substantial evidence support.

[00:27:38] Speaker 04:
The board doesn't make it under a substantial evidence standard.

[00:27:41] Speaker 04:
It makes it under a boundaries standard.

[00:27:43] Speaker 06:
Yes, Judge Toronto, I apologize if I misspoke.

[00:27:45] Speaker 06:
But the standard of review for that finding is a substantial evidence standard.

[00:27:49] Speaker 06:
We believe that because the board pointed to the relevant passages of Hiroshi, including paragraph.

[00:27:53] Speaker 04:
And you think that that finding resolves the issue without regard to whether A means one or more, or only if it means one or more?

[00:28:07] Speaker 06:
I believe it resolves the issue under either proposed construction, because what the board did was they said Hiroshi teaches the same type of setup that we see in the 698 patch.

[00:28:18] Speaker 06:
And then briefly, I'll just turn to the legal question or the claim construction question about whether A means one or more.

[00:28:24] Speaker 06:
There was reference to the Varma opinion, which I understand you depend on, Judge Toronto.

[00:28:29] Speaker 04:
This case is entirely different from Varma, because there, there was the... Is there something in the spec of this patent that says when we use the word A, we mean one or more?

[00:28:40] Speaker 06:
No, there's not.

[00:28:41] Speaker 06:
And that's precisely the point.

[00:28:43] Speaker 06:
In Varma, you had the claim language, which tied this statistical analysis formula to two or more investments specifically.

[00:28:52] Speaker 06:
And then in the specification of Varma, you had a distinction that the court pointed to between

[00:28:59] Speaker 06:
doing the statistical analysis on a single investment versus two investments.

[00:29:03] Speaker 06:
And the opinion said that distinction is important.

[00:29:06] Speaker 06:
There's nothing like that in the 698 patent, where they draw some distinction and say, oh, one software application is different somehow, or more inventive, or more important than multiple software applications.

[00:29:19] Speaker 06:
And then the other thing you had in VARMA was the prosecution history, where the applicant specifically relied on the claim language and the idea that you had one

[00:29:28] Speaker 06:
you had a correspondence to two or more investments, they relied on that to distinguish the prior art.

[00:29:34] Speaker 06:
There's nothing like that here in the prosecution history of the 698 patent, where they said,

[00:29:40] Speaker 04:
I'm sorry, can I just interrupt?

[00:29:41] Speaker 04:
So in column 10, lines 19 and following, and then lines 31 and following, for example, the 31 and the following says, a processor means any one or more microprocessors.

[00:29:57] Speaker 04:
Why isn't that actually a specification statement that the singular here we mean to include one or more?

[00:30:06] Speaker 06:
Well, first, it's talking about processor specifically, not the claim term software application.

[00:30:13] Speaker 04:
And so I don't think it's a... Necessarily carries over.

[00:30:16] Speaker 06:
Right.

[00:30:16] Speaker 06:
And it's not a broad statement one way or the other that... It would be helpful to you if it did, right?

[00:30:21] Speaker 06:
Well, if there was, of course, a blanket statement that said every time we say, hey, we mean one or more, that would be great.

[00:30:26] Speaker 06:
And so they set it with respect to processor.

[00:30:30] Speaker 06:
Processor is computer technology close to software application.

[00:30:34] Speaker 06:
And we see that in the case law, like the 01 Communique case, where we're talking about this type of computer technology.

[00:30:41] Speaker 06:
We're often drawing boxes.

[00:30:42] Speaker 06:
And that's really what they did here.

[00:30:44] Speaker 06:
You look at figure two, it's a big box with a bunch of smaller boxes inside.

[00:30:48] Speaker 05:
Thank you, Tom.

[00:30:48] Speaker 05:
Thank you, Your Honor.

[00:30:50] Speaker 05:
Mr. Karheiser has some little time left.

[00:30:54] Speaker 00:
Thank you, Your Honor.

[00:30:56] Speaker 00:
At the last there, one or more is used in some claim languages, some claims, just not five and eight.

[00:31:03] Speaker 00:
So when they want to use one or more or more than one, they know how to do it.

[00:31:08] Speaker 00:
And as the court just pointed out in the specification, it also appears in the claim language.

[00:31:13] Speaker 00:
We have that in our brief.

[00:31:15] Speaker 00:
With respect to pairing, the example that Cannon provided is a good one.

[00:31:22] Speaker 00:
because your TV remote works with your TV because it's already, they know each other, as he said.

[00:31:29] Speaker 00:
There's a mutual agreement.

[00:31:31] Speaker 00:
And when you turn off your TV and then you come back tomorrow, it remembers your remote, the TV, because they have stored something about that other node that allows them to connect.

[00:31:47] Speaker 00:
That's why they're paired.

[00:31:48] Speaker 00:
And without something being stored to help you identify who you are speaking to through this wireless connection, you're not going to remember who you were speaking to.

[00:31:59] Speaker 00:
And so you've got to store something.

[00:32:01] Speaker 00:
And Dr. Foley does a great job of explaining that.

[00:32:07] Speaker 00:
And going back to, real quick,

[00:32:12] Speaker 00:
the whole patent talks about the need for one application to do all six things.

[00:32:18] Speaker 00:
And those are laid out completely.

[00:32:21] Speaker 00:
And your clerks will respect page nine of the opening brief.

[00:32:27] Speaker 00:
There's a great diagram there that talks about the flow of information.

[00:32:30] Speaker 00:
And the bottom part of that whole chart is missing because the board failed to even address the GUI to delete function.

[00:32:39] Speaker 00:
There was a lot of talk.

[00:32:41] Speaker 00:
by Cannon about, well, the board just says that it does it all.

[00:32:44] Speaker 00:
And that's why we have, thankfully, an Article III review of this administrative decision.

[00:32:50] Speaker 00:
It's conclusory.

[00:32:51] Speaker 00:
It's wrong.

[00:32:52] Speaker 00:
And you can't say it does it when you don't even address how it does the gooey-to-delete.

[00:32:59] Speaker 00:
And to the extent that there is an argument that sales spin waived its right, they cited a lot of prior art.

[00:33:10] Speaker 00:
There's eight pieces all together, but with respect to Hiroshi, we explain that in detail at pages 41 to 43 of our opening brief about how Hiroshi does not do all, how they never even said Hiroshi did all the steps, or Hiroshihashi, sorry.

[00:33:34] Speaker 00:
So there's just, again,

[00:33:37] Speaker 00:
On page 43, we talk about how the application is configured to do all six steps.

[00:33:42] Speaker 00:
And the board just ignores what the GUI has to do.

[00:33:48] Speaker 00:
And again, I think that might be related to how that quote was truncated.

[00:33:53] Speaker 00:
I didn't get the honor to clerk with Judge Laurie, but I did clerk for Judge Ware and Judge McKelvey.

[00:34:00] Speaker 00:
And when you can't get the quote right, that's always a good sign that something's not in your favor.

[00:34:06] Speaker 05:
Thank you, Mr. Gatheiser.

[00:34:08] Speaker 05:
We'll hear from you in a moment when we change counsel.

[00:34:13] Speaker 05:
This case is submitted.