[00:00:00] Speaker 01:
Incorporated versus Tile, Incorporated, 2021, 1982, and 2050.

[00:00:07] Speaker 01:
Mr. Schoenhart.

[00:00:12] Speaker 00:
Thank you, Judge Lurie.

[00:00:13] Speaker 00:
Good morning, Your Honors.

[00:00:14] Speaker 00:
May it please the court, Paul Schoenhart, today appearing on behalf of the appellant, Selwich, Inc.

[00:00:20] Speaker 00:
Selwich respectfully requests that this court reverse the board's decision that claims 1 and 12 of the 655 patent

[00:00:29] Speaker 00:
were obvious in view of the references Ritter and Duncan.

[00:00:33] Speaker 00:
Simply put, Ritter does not teach further configuring a buddy terminal to monitor a device associated with someone else.

[00:00:43] Speaker 00:
Neither party argued that Ritter includes such a disclosure at any point earlier in the proceedings, and the only way the board could have reached that decision is through an incorrect implicit construction

[00:00:58] Speaker 00:
of the term monitor.

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And so this court is seen briefing on the distinction between to monitor and to detect as a claim construction dispute that previously below was represented as an argument over whether Ritter or Duncan performed the buddy monitoring functions.

[00:01:22] Speaker 02:
My understanding of the briefing is there's an argument between the parties on whether you waived this claim construction argument about monitoring.

[00:01:32] Speaker 02:
Is there some place in your patent owner response that we could look at where we can see that you broke out in a claim construction argument your understanding of what monitoring must entail?

[00:01:48] Speaker 00:
At no point was monitoring presented as an issue of specific claim construction.

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Both parties treated monitoring as a plain and ordinary meaning.

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And in fact, as there was no argument that Ritter disclosed monitoring someone else's tags to satisfy the buddy limitation, there was no reason for Selwich to believe that any special construction of monitoring would be required.

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That said, from the start of the proceedings below,

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Selwich was consistent throughout that there was a distinction between monitoring and detecting.

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That can be found in the appendix at 660.

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That was in the patent owner response.

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Again, the patent owner brought this up again in its cert reply.

[00:02:38] Speaker 00:
I believe that is the appendix 1146.

[00:02:43] Speaker 00:
The board clearly recognized this and stated in the board's decision in the appendix of 43 that patent owner's assertion that finding another's tag is a very different thing than monitoring another's tag is unavailing.

[00:02:58] Speaker 00:
The board thus clearly recognized that Selwitz was drawing a distinction between monitoring and detecting, had done so throughout the proceedings.

[00:03:07] Speaker 00:
Tile had every opportunity to respond to that argument.

[00:03:12] Speaker 00:
And yet, throughout the proceedings, Tile never argued that Ritter disclosed monitoring someone else's tag.

[00:03:21] Speaker 00:
That first came out in the board's final written decision, and that is what now prompts the appeal as to the implicit claim construction that could possibly yield that result.

[00:03:33] Speaker 00:
Put more specifically, in the petition, both Tile and its expert, Mr. Schmant,

[00:03:42] Speaker 00:
explained that Ritter would need to be modified to satisfy the buddy limitations, stated that the modification Ritter would need, if any, to disclose this limitation is to allow the mobile device to use the same proximity monitoring it was already using for its own associated tags to act as a buddy by monitoring the proximity of another tag

[00:04:05] Speaker 00:
that it was already communicating with, if nearby.

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In other words, Tile and its expert recognized that Ritter would need to be modified so as to permit such further configuration, so as to monitor someone else's tag.

[00:04:21] Speaker 00:
In the final written decision, this is the first time we actually saw anyone, and it turned out to be the board itself, state that the disclosure of Ritter

[00:04:34] Speaker 00:
somehow accomplishes such monitoring.

[00:04:39] Speaker 02:
Didn't the board say something about how your expert admitted that Ritter's searching continuously or periodically for tags operates in the same way as the polling technique disclosed in your patent?

[00:04:55] Speaker 00:
It did, your honor.

[00:04:56] Speaker 00:
And this actually helps highlight the board's misunderstanding of what it means to monitor.

[00:05:01] Speaker 00:
To monitor a tag,

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under its plenary meaning, in fact means to track a particular tag.

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Not to be searching generally for what tags out there, but in fact to track the particular thing being monitored.

[00:05:16] Speaker 00:
That is actually how both parties presented monitoring throughout the proceedings up through recently finally of the board's final written decision.

[00:05:25] Speaker 00:
The board mistakenly understood the polling mechanism, which is only a portion of the process as itself being monitoring.

[00:05:34] Speaker 00:
The patent is quite clear about what a process to monitor would be.

[00:05:39] Speaker 00:
With reference to figure six in the patent, the patent explains that monitoring involves polling for nearby tags.

[00:05:48] Speaker 00:
That is the process or the portion of the process that is the same both for detecting and for monitoring.

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Whatever tags are detected as a result of the polling,

[00:06:01] Speaker 00:
Their identifications are compared against the information stored in the wireless terminal as to which tags is it supposed to be monitoring?

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Not just what can it detect, but which tags is it supposed to be monitoring?

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If there is a mismatch, if a tag in the list of tags that are supposed to be monitored, if that identity is not among those that are detected, then an alert will be sent out.

[00:06:30] Speaker 00:
That's a recognition that what I am trying to monitor has not been detected.

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Both monitoring and detecting result on polling or rely on polling in the first instance so as to determine what can be detected.

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But monitoring requires something more.

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Monitoring requires that there in fact be a reconciliation between what has been detected and what was supposed to be monitored.

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This was acknowledged by Tile even during the hearing before the board.

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This is how the patent describes monitoring in connection with Figure 6.

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And Tile's argument now that the patent uses detection and monitoring interchangeably is really an argument in the first instance that was not made previously below, and also is belied by the specification.

[00:07:26] Speaker 00:
We direct the court, beyond the general teachings of the specification, including of Figure 6, also to Claim 23.

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Where in claim 23, it is claimed that a wireless terminal can be configured to detect tags that it has not been configured to monitor.

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Further confirming that the patentee understood that those terms were different as they have been used differently in connection with figure 6, figures 10, and figures 11.

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If a proper construction of monitoring is recognized, there can be no substantial evidence that Ritter does not disclose monitoring of someone else's tag.

[00:08:13] Speaker 00:
The evidence to which the board points is exclusively the teachings of Ritter's third party that can detect any tags that are out in the field, including those that might be registered to other folks.

[00:08:26] Speaker 00:
That again is simply detection.

[00:08:29] Speaker 00:
There is no disclosure in Ritter that such third party actually monitors such tags.

[00:08:37] Speaker 00:
It is searching for tags, it can detect tags, but it is not monitoring any tag associated with someone else.

[00:08:46] Speaker 00:
I realize I'm eating into my rebuttal time, but I do want to get to that point of association because Tyle's backstop argument is that the reference Duncan

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can supply what Ritter is missing in this regard.

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Duncan is missing any concept of association.

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And association is quite important to the claims of the 655Pent.

[00:09:11] Speaker 00:
In the 655Pent claims... What about storing the ID number of the tag?

[00:09:18] Speaker 00:
The story and idea of the number of attack, that is configuration.

[00:09:21] Speaker 00:
That is deciding what I am authorized to monitor.

[00:09:24] Speaker 00:
That is not an association.

[00:09:27] Speaker 00:
If that were association, there would be no reason in the claims to identify association and then say, and is configured to monitor.

[00:09:35] Speaker 00:
And it would also render the buddy limitation superfluous.

[00:09:39] Speaker 00:
Because if every tag that you are configured to monitor, you are necessarily associated with, the first element of claim one and the first step of claim 12 would accomplish this entire concept.

[00:09:55] Speaker 00:
What is really special about these 655 patents is this buddy notion that there can be terminals that are associated with tags, but then there can also be terminals that are not associated with those tags, but are nonetheless further configured to monitor them.

[00:10:15] Speaker 00:
That is the type of authorization to monitor.

[00:10:17] Speaker 00:
that Duncan discloses, but that is authorization to monitor, the configuration to monitor, not association as between a particular terminal and a particular tag, such that a body that is associated with its own tags, because it needs to be one of the terminals of the first element, and is further configured to monitor someone else's, in other words, a tag that is associated with someone else,

[00:10:45] Speaker 00:
That buddy needs to be able to monitor things at two different levels.

[00:10:50] Speaker 00:
It needs to be able to monitor things that are associated with it and that it's its.

[00:10:56] Speaker 00:
There's some notion of a pervasive logical connection or possession.

[00:11:01] Speaker 00:
It's configured to monitor its tags and configured to monitor tags that are not its.

[00:11:09] Speaker 00:
Duncan does not suggest any notion of which ones belong to or are logically connected to, beyond just authorization to monitor.

[00:11:20] Speaker 00:
I am significantly into my rebuttal time, and I recognize there is a cross appeal here.

[00:11:26] Speaker 00:
So as to the issue of the base station, I would leave that on the papers and commend those to the court's consideration, unless there are further questions for me now.

[00:11:37] Speaker 01:
We will save the rebuttal time.

[00:11:41] Speaker 03:
Good morning.

[00:11:42] Speaker 03:
May it please the court?

[00:11:44] Speaker 03:
I want to start with one issue that Cellwitch's counsel just brought up as a predicate to its arguments regarding monitoring and Judge Chen's question regarding the waiver issue.

[00:12:01] Speaker 03:
So which just represented that tile hadn't represented below that Ritter disclosed the monitoring functionality of claims one and 12.

[00:12:13] Speaker 03:
That's just wrong.

[00:12:14] Speaker 03:
In the petition at appendix 155 through 156, Ritter and its disclosures relating to its polling, receiving of responses, receiving and processing of

[00:12:29] Speaker 03:
the identifications and so forth is part of the petition.

[00:12:35] Speaker 03:
There's just simply no basis to say that this wasn't before the PTAB and there was no notice.

[00:12:49] Speaker 03:
The other issue that sort of gets lost in the opening statements is that

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Duncan was also relied on by the P tab in its final written decision as disclosing the monitoring steps.

[00:13:07] Speaker 03:
That's not something with respect to monitoring that is challenged by Selwitch on appeal.

[00:13:12] Speaker 03:
So even if you were to credit the arguments regarding monitoring, there's already a basis to affirm on the unchallenged Duncan theories.

[00:13:23] Speaker 03:
And I would point you to appendix 46 and 47, which is the final written decision where the board made findings that Duncan also met those limitations.

[00:13:38] Speaker 03:
Turning back to the request for an interpretation of monitoring and associated with that Selwich makes on appeal, the issue before this court is sort of muddled, I think, from what Selwich actually requests in its opening brief.

[00:14:03] Speaker 03:
If you look at their blue brief at page 32,

[00:14:08] Speaker 03:
They actually state that at least with respect to monitoring, they don't think that this court has to construe what monitoring means.

[00:14:16] Speaker 03:
So then that devolves into a substantial evidence issue, which is not something that they actually contest on appeal, that under the board's interpretation of monitoring, there is substantial evidence for both the monitoring and the associated with limitations.

[00:14:35] Speaker 03:
Even still, for monitoring,

[00:14:38] Speaker 03:
the plain and ordinary meaning for the terms would need to be consistent with what's disclosed in the specification and the disclosed embodiments.

[00:14:46] Speaker 03:
Tile agrees that Figure 6 is an example embodiment of monitoring.

[00:14:52] Speaker 03:
And what figure 6 and its related disclosure state is that it's a polling and response process.

[00:15:00] Speaker 03:
It doesn't give any special meaning or process for what's done with identifications.

[00:15:05] Speaker 03:
It's just that the identifications are ascertained.

[00:15:08] Speaker 02:
What about the correlating the identities to the stored identities?

[00:15:12] Speaker 02:
I'm sorry, can... The step in figure 6 of correlate identities to stored identities.

[00:15:19] Speaker 03:
Understood, Your Honor.

[00:15:20] Speaker 03:
I think that's not described in any great detail in the patent what that actually would entail.

[00:15:27] Speaker 03:
And the board properly... Is that part of monitoring?

[00:15:31] Speaker 03:
I think it, yes.

[00:15:32] Speaker 03:
It can be part of the monitoring process is to collect and process the identifications.

[00:15:40] Speaker 03:
Which is what Ritter disclosed and what the board found.

[00:15:43] Speaker 02:
But Ritter does that correlation to stored identities?

[00:15:47] Speaker 03:
Ritter receives and processes the identities to affect its system of alerting at least the first device's user and relay that information back.

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So I think that that's a reasonable reading of Ritter.

[00:16:04] Speaker 03:
But I don't think that you need to do that analysis here because the board also relied on Duncan, and Duncan's not challenged.

[00:16:24] Speaker 03:
Turning to associated with, the issue is a little bit muddled on the appeal.

[00:16:35] Speaker 03:
Associated with is a broad term that has a readily understood plain and ordinary meaning.

[00:16:42] Speaker 03:
And it's actually used three different times in the claims.

[00:16:47] Speaker 03:
It's used in the first couple of limitations, including the preamble, and notably

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below, Selwich didn't challenge those limitations at all that they were found in the combination of Ritter and Duncan, and didn't challenge whether Associated With had some special meaning with respect to those limitations.

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So what we have here is really a dispute on Associated With that appears only in the buddy limitations of claims 1 and 12.

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And it's really just referring back to an association with respect to the first monitoring terminal and its associated tag, which is, again, not something that was challenged under either Ritter or Duncan below.

[00:17:34] Speaker 03:
There's nothing in the plain language of the claims that requires a special relationship for the buddy with the tag.

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For instance, there's no language that would weigh in favor of importing a negative construction with respect to the buddy terminal device that it can't be associated as well with the same monitored device or tag.

[00:18:04] Speaker 03:
what references language you're relying on.

[00:18:08] Speaker 03:
So in that respect for Duncan, it's totally fair for the PTAB to have considered that Duncan disclose the appropriate associations because there is undoubtedly an association between the first parent device and the child and the tag on the child.

[00:18:31] Speaker 03:
And there was a second device that's able to perform all of the same monitoring steps with respect to that same tag.

[00:18:39] Speaker 03:
There is no reason to import, like I said, there's no reason to import that negative limitation that would, in effect, require the buddy to not have an association.

[00:18:52] Speaker 02:
Are you going to speak to your cross-appeal?

[00:18:54] Speaker 03:
Yes, I am, Your Honor.

[00:18:55] Speaker 03:
And I'll turn to that now if there's no further questions on the cellulose appeal.

[00:19:02] Speaker 03:
For title's cross appeal on claims four and 16 and their dependence, there's two fundamental issues I want to address today.

[00:19:10] Speaker 03:
The first is the PTAB engaged in improper claim construction below.

[00:19:14] Speaker 03:
The second, the board applied the wrong law for obviousness.

[00:19:19] Speaker 03:
Each constitutes reversible error as a matter of law.

[00:19:25] Speaker 03:
Turning first to the first issue regarding claim construction,

[00:19:29] Speaker 03:
What the PTAB did was do an end run around well-established law, seized on an interpretation based on a statement of an expert that was of questionable context to avoid altogether looking at the intrinsic evidence and especially the claim language.

[00:19:50] Speaker 03:
to determine if the understanding that it applied of claims four and 16 was appropriate under the claim language.

[00:20:03] Speaker 03:
It was incumbent on the piece.

[00:20:05] Speaker 02:
The claim limitation says something like the database collects and stores data.

[00:20:10] Speaker 02:
That's claim one, right?

[00:20:13] Speaker 03:
In claim one, there's a recitation of the database collecting and storing data that relates to the wireless terminals or the devices.

[00:20:25] Speaker 02:
When a database collects data, what does a database do with that data that it collects other than storing that same data?

[00:20:38] Speaker 03:
I understand your comment.

[00:20:41] Speaker 02:
It kind of feels like

[00:20:43] Speaker 02:
One goes with the other, especially in the context of a database.

[00:20:49] Speaker 02:
A database is catching the data, collecting it, and then putting it in storage.

[00:20:58] Speaker 02:
That's what databases do.

[00:21:02] Speaker 03:
I understand, Your Honor.

[00:21:03] Speaker 02:
First thing that I'll point out is... Or is there something in the patent that suggests there's a subset of the data that is collected by the database that it does not store?

[00:21:12] Speaker 02:
It throws it away or does something else with it?

[00:21:16] Speaker 03:
Two responses to that, Your Honor.

[00:21:18] Speaker 03:
Claim 12 doesn't actually recite anything about a database.

[00:21:21] Speaker 03:
It really is just the processing system that is recited as collecting and storing.

[00:21:26] Speaker 03:
So there's no database requirement at all in Claim 12.

[00:21:30] Speaker 02:
Did you argue that separately from claim one?

[00:21:33] Speaker 03:
Yes, that is noted a few different times in both the red brief and the gray brief.

[00:21:40] Speaker 01:
Counsel, you wanted to talk about your cross appeal, which is claim four.

[00:21:46] Speaker 01:
And claim four adds time of day and location, right?

[00:21:51] Speaker 01:
Correct.

[00:21:51] Speaker 01:
That's what distinguishes the claims involved in the cross appeal.

[00:21:57] Speaker 03:
It distinguishes those claims on the cross-appeal with respect to the collected data that's recited in claims 1 and 12.

[00:22:09] Speaker 03:
Judge Chen, going back to your question about whether the specification contemplates a situation where a database may collect but not necessarily store, there is disclosure in claims 7,

[00:22:27] Speaker 03:
Sorry, columns.

[00:22:29] Speaker 03:
Let me see if I've got that correct.

[00:22:35] Speaker 03:
Yes.

[00:22:36] Speaker 03:
At appendix 112, columns 7 and 8, there's a discussion of a few different examples of a situation where the 655 system

[00:22:48] Speaker 03:
might collect information, for instance, signal strength, or sorry, information from the tags about signal strength and other things and then make a calculation to do some other determination.

[00:23:00] Speaker 03:
That's an instance where the processing system or even a database, for instance, may ingest data but then not store it.

[00:23:09] Speaker 01:
Counsel, you wanted to save some time on the cross appeal if there's something to respond to.

[00:23:16] Speaker 03:
I do, Your Honor, but I do want to briefly address the second issue in the cross-appeal of the misapplication of the obviousness standard.

[00:23:30] Speaker 01:
The grounds for claims... You don't think the Board understands the law of obviousness?

[00:23:37] Speaker 03:
I think the majority got it wrong.

[00:23:39] Speaker 03:
The dissent, which is a rare PTAB case where there's a dissent, got it correctly and applied the appropriate analysis and looked at what the references suggest and looked at them for all that they teach.

[00:23:53] Speaker 03:
The majority, on the other hand, despite it being an obviousness ground,

[00:23:59] Speaker 03:
expressly refused to consider obviousness in footnote five of the final written decision at appendix 84.

[00:24:09] Speaker 02:
Just to clarify, when I read the dissent, the dissenting part, I don't read that board judge as somehow doing some kind of modification to the teachings of Ritter that would make it obvious to store the data in the database of Ritter.

[00:24:29] Speaker 02:
My understanding of that descent is instead saying, when you read that reference for all that it teaches, the most logical inference to take away from Ritter, and one of ordinary scale in the art would read this, is that the collected data is being stored in that database.

[00:24:49] Speaker 02:
So I do not read her as saying that she's going to independently engage in some kind of obviousness type analysis as to whether the Ritter reference somehow would be obvious to modify it so that it stores data.

[00:25:04] Speaker 02:
So I feel like this is a misreading on your part to suggest that, number one, that's what the dissent did.

[00:25:11] Speaker 02:
and in addition, relying on cases that I don't think stand for what you say they stand for, which is that when you say that in a 103 context, reference number one discloses limitation X, and then reference number two discloses limitation Y, and then it'd be obvious to combine those two references,

[00:25:31] Speaker 02:
that now the board is charged with not only looking at whether those references teach what you say that they teach, but that they also have to independently on their own expand their mind and try to imagine whether it would likewise also be obvious to modify the teachings of those references to satisfy those limitations.

[00:25:49] Speaker 02:
I don't know of any case that actually says that, that we've charged the board to try to expand on the petition in that way and on its own volition, try to imagine other things that the petition could have said but did not say.

[00:26:04] Speaker 03:
Understood, Your Honor, and I'll very briefly, so I have 10 seconds left for rebuttal, state that if we are to assume that your understanding is true of the dissent,

[00:26:16] Speaker 03:
those cases, and I'll point you to the N. Ray Prada case, also applies and requires a review of the references for all that they teach, and that one would at once envisage in that reference, even if you're applying a single reference analysis under anticipation.

[00:26:37] Speaker 01:
And with that, I'll... We'll give you two minutes for rebuttal on the cross appeal if there's something to rebut.

[00:26:47] Speaker 01:
Mr. Schoenhart.

[00:27:00] Speaker 00:
Thank you again, Your Honor.

[00:27:02] Speaker 00:
To begin with a brief reply on the substantive appeal, it was represented that Duncan is left unchallenged

[00:27:13] Speaker 00:
I believe the briefing makes quite clear that in fact Selwich does challenge whether Duncan teaches the buddy feature, the monitoring of both its own tag and a tag associated with another.

[00:27:30] Speaker 02:
And I know you challenged the part about the associated with, but what about the monitoring?

[00:27:37] Speaker 00:
Your Honor, that's exactly what we're challenging.

[00:27:40] Speaker 00:
Associating.

[00:27:41] Speaker 00:
So we do not challenge whether.

[00:27:42] Speaker 02:
Oh, I see.

[00:27:43] Speaker 02:
There's kind of smushed together in that sense.

[00:27:46] Speaker 00:
There necessarily is.

[00:27:49] Speaker 00:
Duncan does teach monitoring of tags.

[00:27:53] Speaker 00:
That is not disputed.

[00:27:55] Speaker 00:
Duncan does not teach monitoring a tag

[00:27:58] Speaker 00:
with which a terminal is associated, and also further configured to monitor a tag associated with someone else, because there is no concept of association.

[00:28:08] Speaker 00:
So what is being monitored from the perspective of association is not disclosed in Duncan.

[00:28:15] Speaker 00:
But we acknowledge that Duncan does teach generally the concept of monitoring, which is why the first element of claim one, the first step of claim 12, remains unchallenged to that degree.

[00:28:28] Speaker 00:
The question was put as to what we're doing here, whether there's a substantial evidence question as to how the board addressed this.

[00:28:37] Speaker 00:
This is something this court has grappled with somewhat frequently when dealing with implicit claim constructions from the board and at times implicit claim constructions from district courts.

[00:28:48] Speaker 00:
Here, on the face of the plain language, substantial evidence does not support

[00:28:55] Speaker 00:
Ritter's disclosure of the monitoring of someone else's tag.

[00:29:02] Speaker 00:
There is no substantial evidence for such a finding.

[00:29:06] Speaker 00:
That is under a plain language reading of claims one and 12.

[00:29:12] Speaker 00:
The board did not make any special construction of claims one or 12, such that it ultimately, to some degree, is to this court's discretion in the language of its ultimate opinion

[00:29:25] Speaker 00:
whether it is reversing on substantial evidence grounds based on the plain language alone, or whether it is reversing an implicit construction and then on the basis of that.

[00:29:37] Speaker 02:
Can we get to the cross appeals?

[00:29:39] Speaker 00:
Yes, your honor.

[00:29:40] Speaker 02:
Why doesn't Ritter's database store this location data?

[00:29:47] Speaker 00:
There's no disclosure anywhere in Ritter that location of loss information is ever conveyed onward to Ritter.

[00:29:55] Speaker 02:
There is a disclosure at paragraph 58 of Ritter that at the time of registration... Just to step back and understand how Ritter works, it's similar to the claimed invention in the sense that we've got tags out there and we've got a

[00:30:17] Speaker 02:
a phone or something like a phone that's trying to stay in connection with those tags and then at a certain point they break the connection because the tag has moved too far away from wherever the phone is and then there's a signal that's sent to the phone about that and then there's a broadcast to a geographic area surrounding that location where the tag got lost

[00:30:44] Speaker 02:
to all available mobile phones in that area to let them know about this lost tag.

[00:30:51] Speaker 02:
So, uh, why wouldn't that server, uh, not only learn about that information about the location of where the tag was lost, but also why wouldn't they also store that information?

[00:31:05] Speaker 00:
Your honor, I believe you're making an incorrect assumption about, uh, that broadcast message in a limited geographic area.

[00:31:13] Speaker 00:
There is no statement in Ritter that such broadcast is in the limited geographic area where it was reported that the tag was lost.

[00:31:21] Speaker 00:
The only location information that is disclosed in Ritter as being stored in the database is at the time of registration.

[00:31:28] Speaker 00:
That's disclosed in paragraph 58 of Ritter.

[00:31:31] Speaker 00:
At the time of registration, the owner of the tag stores in the database the location where the tag is.

[00:31:39] Speaker 00:
Imagine, for instance, I were to register a tag

[00:31:42] Speaker 00:
here at the courthouse.

[00:31:43] Speaker 00:
Ultimately, if there is to be a loss, it would be very sensible, consistent with the teaching of Ritter, to send out a blast in the limited geographic area of the Washington D.C.

[00:31:54] Speaker 00:
metro area.

[00:31:55] Speaker 00:
But there is nothing in Ritter that says that that blast is based on any communicated data regarding where the tag was last seen or where the tag was lost.

[00:32:06] Speaker 00:
There's no disclosure at all that location of loss information or time of loss information is ever communicated from the owner's device upward.

[00:32:15] Speaker 00:
There is only a communication that a loss has occurred.

[00:32:20] Speaker 00:
Now on appeal, tile points to paragraph 58, time of loss information.

[00:32:26] Speaker 00:
Notably, that paragraph was not cited in the petition, and for good reason, because that paragraph relates to registration.

[00:32:34] Speaker 00:
and the recordation of information at time of registration, not at time of loss.

[00:32:40] Speaker 01:
Thank you, counsel.

[00:32:42] Speaker 00:
Thank you.

[00:32:43] Speaker 01:
Please, Dusty has a couple of minutes for rebuttal on the cross appeal.

[00:32:49] Speaker 03:
Thank you, your honor.

[00:32:51] Speaker 03:
I wanted to touch on, I think it was Judge Chen's question to Selwich's counsel regarding what Ritter actually discloses with respect to the database and collecting and storing.

[00:33:04] Speaker 03:
I think there's no dispute that Ritter has a database, database six.

[00:33:09] Speaker 03:
There's no dispute that Ritter discloses, at least in general, that it collects location of the tag or patch when the tag exceeds the communication range.

[00:33:21] Speaker 03:
And we point that out in our red brief at page 61, pointing... Is this on the cross appeal?

[00:33:27] Speaker 03:
Yes.

[00:33:30] Speaker 03:
Appendix, citing Appendix 620, which is Ritter paragraph 62.

[00:33:36] Speaker 03:
And there's no dispute that lost notifications

[00:33:39] Speaker 03:
can be sent by the database.

[00:33:41] Speaker 03:
And specifically, there's no dispute that Ritter's database six communicates notification of loss in the area of the location of the tag.

[00:33:52] Speaker 03:
And I can provide you, let's see, petition that's argued at appendix 164, relying on the expert declaration at appendix 578 through 79, citing to Ritter paragraph 61.

[00:34:09] Speaker 03:
And for the exact proposition that also relates to the in Ray Prado case that I discussed previously, that was exactly what the expert looked at.

[00:34:21] Speaker 03:
That disclosure of the database being able to send that notification in the area of loss was obvious to somebody or suggested to somebody of ordinary skill in the art that that meant

[00:34:36] Speaker 03:
that the Ritter database 6 would have had to have received the location information of the loss.

[00:34:46] Speaker 03:
And on that record, under the appropriate case law and legal application, that was error for the court to not credit.

[00:34:55] Speaker 03:
Thank you.

[00:34:56] Speaker 01:
Thank you, counsel.

[00:34:58] Speaker 01:
The case is submitted.