[00:00:00] Speaker 03:
2021-1561 Hoyt Augustus Fleming versus Citrus Design Corporation.

[00:00:12] Speaker 03:
Mr. Dowler, please proceed.

[00:00:16] Speaker 04:
Good morning, Judge Lurie, Judge Hughes, and Judge Stoll.

[00:00:19] Speaker 04:
My name is Mike Dowler, and I represent Hoyt Fleming, the appellant in the case.

[00:00:25] Speaker 04:
Your honors, my time is short today, so frankly,

[00:00:29] Speaker 04:
I prefer to just answer questions that you have, but barring that, I'm going to go through the issues.

[00:00:36] Speaker 04:
There are two primary issues, separate issues that are on appeal.

[00:00:41] Speaker 04:
The first one is the Fleming's revised motion to amend certain claims in the patent.

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And the second issue is the validity of claims 137 through 139 in the same patent.

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Addressing first the revised motion to amend, the real issue here is regarding claim construction.

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And I know your honors are familiar with the process.

[00:01:09] Speaker 04:
There's the revised motion to amend.

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There's an opposition to the motion to amend.

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There's a reply.

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And there's a third reply.

[00:01:17] Speaker 04:
In none of that briefing did any of the parties, you know, address an issue of claim construction.

[00:01:23] Speaker 04:
It seems basically based on all the briefings that both parties were taking what would otherwise be called the plain and ordinary meaning of the claim language.

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If you read the claim language, it seems apparent from its face that it just means what it means and there wasn't any difference among the parties in terms of what any of those terms meant.

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And so no issue of claim construction came up in any of the briefings or during the hearing of the latter.

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That's the Council.

[00:01:56] Speaker 01:
This is Judge Stoll.

[00:01:57] Speaker 01:
And the board did find this claim indefinite, right?

[00:02:01] Speaker 01:
This claim language that we're looking at, found it indefinite.

[00:02:05] Speaker 01:
So that's kind of a claim construction.

[00:02:07] Speaker 01:
We use claim construction that when you're trying to construe a claim and if you can't construe the claim, then you might say it's indefinite.

[00:02:14] Speaker 01:
Here, the reason for it being indefinite is the lack of a

[00:02:18] Speaker 01:
additional claim element identifying when you would choose the first procedure or the second procedure, as I understand it.

[00:02:26] Speaker 01:
But isn't that, isn't typically when somebody makes a, a court makes a determination on indefiniteness, they're trying to construe the claim, right?

[00:02:36] Speaker 01:
But they say it's so indefinite, I can't figure out what this means.

[00:02:41] Speaker 04:
You're right, Your Honor.

[00:02:42] Speaker 04:
The Board did come up with claim construction, and you'll see that at

[00:02:48] Speaker 04:
APPX 39.

[00:02:49] Speaker 04:
And that's where I was headed with this.

[00:02:52] Speaker 04:
You know, there was no issue of claim construction that arose between the parties.

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There was no issue of claim construction that arose during the hearing.

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And yet, when the final written decision was issued, the board did announce a claim construction.

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And again, that's at APPX 39.

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Now, and that forms what we concerned are

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four primary points of error with respect to the revised motion till then.

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Number one, the board didn't perform any claim construction analysis.

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It simply announced what the claim construction was.

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So in this regard, the case precedent saying that a claim construction is necessary and the board's requirement to give reasons for why this claim construction is what it is are simply not present

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in the board's decision.

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Number two, the board's claim construction is inconsistent with the claim language itself, the specification, the prosecution history, and it's contrary to the only expert testimony that was offered with respect to these claims.

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And you won't find any analysis or argument in Sears's appellate brief disputing that.

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We went through, in a lot of detail, showing why the board's claim construction was wrong in light of the claim lines, the specification, the prosecution history, and the expert testimony.

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And none of that is really challenged in Sears's briefing.

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The third point there is, you know, the board based its decision on indefinite, like you mentioned,

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And it also based its decision on written description based on its claim construction.

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So our position is, if you start out with an incorrect claim construction, it's only natural and probably expected that you're going to find issues with specification support.

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And perhaps even indefiniteness in this case, we will see from the board's decision

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that in every instance where it decided against Mr. Fleming on these claims and analyzing the specification support for the new claims and the indefiniteness of the new claims, it specifically referenced and quoted what we would contend is incorrect claim construction.

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Finally, there's what we would contend is a violation of the APA on this issue to announce a brand new construction.

[00:05:40] Speaker 01:
Could you go into that written description argument and go into detail on why you think substantial evidence doesn't support the board's finding on written description?

[00:05:53] Speaker 04:
Yes.

[00:05:55] Speaker 04:
So the board's finding is not supported on the written description because the claim construction that it was looking for in the written description is wrong, for example.

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We went through in our briefing and showed that there are two primary errors in the board's claim construction.

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Number one, the board required that the two procedures be selected when an airspeed is above a certain speed.

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And that simply is incorrect in terms of the claim language itself, the fact of prosecution history, and the expert testimony.

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Because that's wrong, it's really not surprising that the board didn't find that in the specification, right?

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So, I mean, if you start out wrong, it's going to end up wrong when it comes to claim construction and specification support.

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And there's a case that is really directly on point in this regard to the sharing case where that's exactly what happened.

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The claims were misconstrued, and therefore there was an incorrect finding of lack of written description or Section 112 support.

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And you'll find those, you know, the board's quotations of its own claim construction in every finding that it made on the 112 issue and the indefiniteness issue.

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I hope that answers your question, Your Honor.

[00:07:33] Speaker 03:
Anything further, Mr. Taller?

[00:07:35] Speaker 04:
Yes.

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So on the eighth, we'd also contend that the board's new claim construction violated Mr. Fleming's rights under the APA, which requires that he be given notice of the issues that are going to be presented against him.

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And because this is an issue that was first announced in the final written decision, he wasn't given an opportunity to litigate that issue at all.

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we would contend that that's the fourth point of error with respect to the revised motion to amend.

[00:08:06] Speaker 04:
Moving to the validity of claims 137 through 139 in Mr. Fleming's patent, there's a briefing contends that Mr. Fleming asked simply asking this court to reweigh the evidence.

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And that is just simply not true, Your Honors.

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What we're pointing out is that the evidence wasn't considered and the board infamously cherry picked among the limited evidence that it did consider.

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For example, in the party's briefings, they agreed that there were seven references that established the state of the art.

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And if you look at the, and each reference was thoroughly briefed and argued before the board at the hearing.

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If you look though at the final written decision, the board ignored five of those references in favor of only two.

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And under Graham versus John Deere, Arctic Cat, Kansas Jack, Randall Manufacturing, InRay Hedges, InRay Fine, all of these cases say that it's error for the board or court to ignore the state of the art references

[00:09:20] Speaker 04:
and to cherry pick among the prior art when it makes its validity decision.

[00:09:28] Speaker 04:
There's another group or set of evidence that the board also ignored in its decision, and that is the board relied on what we call PLH reference and the James reference to combine them to come up with what they'd consider to disclose the invention.

[00:09:49] Speaker 04:
there was essentially a simultaneous or in the same time frame evidence of what in the real world would be a combination of those two references.

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And those documents came from Sears' own files.

[00:10:04] Speaker 04:
And what it showed is that when you combine the teachings of those two references, you do not arrive at what Mr. Fleming claimed.

[00:10:12] Speaker 04:
Instead, you arrive at an aircraft where you can use an autopilot to

[00:10:18] Speaker 04:
control its flight functions, but then if you want to deploy the parachute, you pull a handle and the parachute comes out.

[00:10:25] Speaker 04:
What you don't do is what Mr. Fleming claimed, and that is if you are in an emergency situation, you pull a parachute deployment handle, it turns control of the plane over to an autopilot.

[00:10:39] Speaker 04:
The autopilot then tries to control the plane and eventually deploys the parachutes.

[00:10:44] Speaker 04:
But what Clearance did,

[00:10:46] Speaker 04:
in the same time frame of Mr. Fleming's invention and this prior art was exactly the opposite.

[00:10:53] Speaker 04:
They used an autopilot to control the flight of the aircraft, but then they did not use the autopilot once they tried to activate the parachute.

[00:11:05] Speaker 04:
And we presented this evidence as a real-world combination of what these references would teach, and it was thoroughly briefed, it was thoroughly argued, and none of that appears in

[00:11:17] Speaker 04:
the final written decision, it was simply ignored.

[00:11:19] Speaker 04:
So again, I mean, this is a, with respect to the board, this is a cherry picking of the evidence that we think is inconsistent with this court's precedent.

[00:11:31] Speaker 04:
I see that my time is up.

[00:11:32] Speaker 04:
Your honors, I'll reserve the rest for rebuttal.

[00:11:35] Speaker 03:
We will hold it for you, Mr. Darlow.

[00:11:37] Speaker 03:
Mr. Wagner.

[00:11:40] Speaker 02:
May it please the court, Kevin Wagner on behalf of the Appellee Serious Design Corporation.

[00:11:45] Speaker 02:
And our position on appeal is that both of the board's findings that the original claims were invalid and rejecting the proposed amendments should be affirmed as supported by substantial evidence.

[00:11:55] Speaker 02:
I'm going to start with the proposed substitute claims.

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And with respect to those proposed amendments, Mr. Fleming's only challenge on appeal is based on claim construction.

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And the fundamental problem with that appeal is that he failed to establish that the board's rejections of his proposed claims were each dependent on claim construction.

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And in fact, they weren't.

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What we did in challenging those amendments was to challenge them under any construction.

[00:12:19] Speaker 02:
And if you look at the board's findings, both on written description and on indefiniteness, you'll see that they are invalid under any construction.

[00:12:27] Speaker 02:
First, the board found that the manual selection of the intelligence override interface, which is the only feature that Mr. Fleming points to for support, disqualifies it as support for the procedure selection limitation because that limitation requires

[00:12:42] Speaker 02:
a processor-based selection by the aircraft.

[00:12:45] Speaker 02:
The board found a lack of support for an aircraft configuration for a processor-based selection.

[00:12:50] Speaker 01:
I just wanted to ask, do you think that finding about manual override or not, whether that's disputed in any way in this client construction argument being made by Fleming?

[00:13:08] Speaker 02:
No, I don't.

[00:13:09] Speaker 02:
I don't think he's made any argument about manual versus processor based selection.

[00:13:13] Speaker 02:
His claim construction arguments are about what the procedures do.

[00:13:18] Speaker 02:
And not really, he does make an argument about whether airspeed needs to be considered.

[00:13:25] Speaker 02:
And I don't think the board made any error with respect to that.

[00:13:27] Speaker 02:
But he doesn't make any claim construction arguments that would in any way impact the manual selection component of the written description finding.

[00:13:35] Speaker 02:
And the board was really clear at Appendix 48 saying it is not evident why the manual action of an occupant to pull a handle a second time constitutes selection using part of the distributing processing system.

[00:13:47] Speaker 02:
So when you read the final rate decision as a whole, it's just super clear that the board considered this whole intelligence override really irrelevant to this feature because that was a manually selected feature.

[00:13:58] Speaker 02:
It's not a processor-based selection.

[00:14:00] Speaker 02:
And if Fleming had drafted his proposed amendments to claim an aircraft configured to allow an occupant to select, it might be a different story, but he claimed that the aircraft itself has to do the selection and there's just no written description support for that as the board found.

[00:14:13] Speaker 02:
The board also found that this intelligence override feature didn't actually use the processor at all.

[00:14:21] Speaker 02:
At appendix 39 and again at 40 and 41,

[00:14:25] Speaker 02:
They found there's no disclosure of the aircraft being configured to activate via the processing system a selected procedure but not an unselected procedure based on a pull of the handle.

[00:14:35] Speaker 02:
This finding isn't even disputed.

[00:14:37] Speaker 02:
All that Mr. Fleming said about it in his reply brief was that that is what the board decided for Fleming's first three citations.

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And those are the only three citations that touch on this override feature.

[00:14:49] Speaker 02:
And that finding is again supported by substantial evidence because the specification

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only states that the intelligence override interface disregards the processor determinations.

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It never says that the processor is in any way involved with the override feature.

[00:15:05] Speaker 02:
Third, the board found that the intelligence override its immediate deployment of the parachute could not support Fleming's attempt to claim all procedures that do not make use of the autopilot to increase altitude.

[00:15:17] Speaker 02:
That's at appendix 42 and a few other places as well.

[00:15:21] Speaker 02:
This is the point where Fleming's appeal, in my view, gets really strange because there's no dispute that there is no disclosure of that feature.

[00:15:29] Speaker 02:
He's not saying that the override actually does increase altitude without using the autopilot.

[00:15:34] Speaker 02:
Instead, he's trying to make a claim construction argument that would expand the claims even further beyond the subject matter that the board found was not supported.

[00:15:43] Speaker 02:
And of course, under area, do you need to have written description support for the full scope of your claims?

[00:15:48] Speaker 02:
So you can't avoid a written description issue by expanding the claims.

[00:15:52] Speaker 02:
If you wanted to avoid the written description problem through claim construction, what he should be doing is attempting to construe the claims as limited to an intelligence override that immediately deploys the parachute based on two handle pulls.

[00:16:04] Speaker 02:
And it appears he's not doing that.

[00:16:07] Speaker 02:
So his claim construction argument really just has no impact on the board's written description findings, each of which are supported by substantial evidence.

[00:16:16] Speaker 02:
The same is true with respect to indefiniteness.

[00:16:20] Speaker 02:
The board found the claims indefinite because they failed to specify any criteria for the processor to use in selecting between procedures.

[00:16:28] Speaker 02:
Again, that finding is unrelated.

[00:16:30] Speaker 01:
Yes?

[00:16:31] Speaker 01:
Why do you think that's necessary?

[00:16:34] Speaker 01:
Why can't the claim just be interpreted to be, hey, any number of criteria, if it was found to be, you know, infringed or invalid,

[00:16:43] Speaker 01:
any number of criteria to be used to make that choice between alternative one and alternative two.

[00:16:49] Speaker 01:
But it doesn't make the claim indefinite.

[00:16:51] Speaker 01:
It just makes it broad.

[00:16:54] Speaker 02:
Yes.

[00:16:55] Speaker 02:
Two things I would say in response to that, Your Honor.

[00:16:57] Speaker 02:
First is that Fleming has not appealed that as part of his appeal.

[00:17:01] Speaker 02:
His only appeal is based on claim construction.

[00:17:03] Speaker 02:
And of course, that issue is not related to claim construction.

[00:17:06] Speaker 01:
Second.

[00:17:08] Speaker 01:
If claim construction is indefiniteness,

[00:17:11] Speaker 01:
We have been asked to review indefiniteness.

[00:17:13] Speaker 01:
You agree with that, right?

[00:17:15] Speaker 01:
It's a legal issue, right?

[00:17:17] Speaker 02:
Indefiniteness is a legal issue and he's asked you to review the indefiniteness on the basis of two purported claim construction errors, neither of which touches on selection criteria.

[00:17:31] Speaker 02:
Because the board expressly found that

[00:17:33] Speaker 02:
that this issue of whether airspeed is involved with selection, he found that it's not.

[00:17:38] Speaker 02:
And it found a complete absence of criteria.

[00:17:40] Speaker 02:
And the point we're making in this argument is that the claim needs to provide some definition around what either of these procedures are and how they're selected in order for it to be understandable, for there to be, you know, as Mr. Fleming is arguing that these are structural limitations, there needs to be some structure that describes what either of these procedures are or how they're selected, and the board found none.

[00:18:03] Speaker 02:
So without that, the claims are completely vague as to how this would ever be implemented.

[00:18:10] Speaker 02:
There's no description of what the procedures are or how you could select between them.

[00:18:16] Speaker 02:
So again, that finding is supported by substantial evidence.

[00:18:20] Speaker 02:
Fleming's own expert admits that there's no criteria in the claim.

[00:18:24] Speaker 02:
And Fleming hasn't otherwise.

[00:18:26] Speaker 01:
Not a finding, it's a legal conclusion, right?

[00:18:30] Speaker 02:
As part of claim construction, that's correct.

[00:18:34] Speaker 02:
Indefinite is the legal conclusion.

[00:18:36] Speaker 01:
Okay.

[00:18:37] Speaker 01:
And so I understand your position, I think, primarily is that they have waived their appeal of the indefiniteness argument or that they've limited it just to the specific claim construction points that they've made.

[00:18:51] Speaker 01:
They argue indefinite and written description together, but I'm on the merits.

[00:18:56] Speaker 01:
I'm having a hard time understanding why it would be indefinite

[00:18:59] Speaker 01:
What if, for example, the first procedure were operated if the aircraft altitude were above 5,000 feet and the second procedure was operated if it was below 5,000 feet?

[00:19:12] Speaker 01:
I mean, it would be pretty clear.

[00:19:13] Speaker 01:
I'm having a hard time.

[00:19:14] Speaker 01:
I think of indefinite instances as, for example, helping.

[00:19:18] Speaker 01:
The question is whether a person with ordinary scaling art looking at the claims would know what they can and cannot do to infringe this claim.

[00:19:26] Speaker 01:
And the absence of a limitation telling you

[00:19:29] Speaker 01:
when you pick criteria, you know, the first procedure or the second procedure, I don't see where that makes the claim not, the scope of the claim not understood.

[00:19:38] Speaker 01:
It's just that the criteria, you don't know it from the claim.

[00:19:41] Speaker 01:
That's more of a written description problem or something or an enablement problem than an indefinite problem.

[00:19:47] Speaker 01:
Do you want to address that issue or would you rather just say that they waived it?

[00:19:52] Speaker 02:
Well, I do think that they waived it, but just to address it briefly,

[00:19:56] Speaker 02:
This is supposed to be a selection that's carried out by a processor.

[00:20:00] Speaker 02:
And so there needs to be some definition around how the processor does that.

[00:20:04] Speaker 01:
And if you're there.

[00:20:06] Speaker 01:
Wait a minute.

[00:20:07] Speaker 01:
Let's say for a minute there's something in the specification that gives you that criteria.

[00:20:11] Speaker 01:
Because you're not arguing written description like a written description.

[00:20:14] Speaker 01:
So let's say hypothetically that there is.

[00:20:17] Speaker 01:
And it's the example I gave.

[00:20:20] Speaker 01:
You know, at a certain altitude.

[00:20:22] Speaker 01:
you will perform the first procedure at a certain altitude, you will perform the second procedure.

[00:20:27] Speaker 01:
Why does that have to be so specified in the claim?

[00:20:31] Speaker 01:
So indefinitely, whether a person of ordinary family art would understand the scope of the claim to know whether they could infringe or not.

[00:20:40] Speaker 02:
Yeah, two points in response to that, Your Honor.

[00:20:43] Speaker 02:
The first is that they're arguing this is a structural limitation, so you would expect there to be sufficient structure in the claim.

[00:20:49] Speaker 02:
to perform that function of selecting.

[00:20:53] Speaker 02:
And then second, the board in this case actually did examine the specification as well to look and see if there was any of that criteria.

[00:20:59] Speaker 02:
Like you said, if you're above a particular altitude, that could be an example of criteria.

[00:21:03] Speaker 02:
But there was no criteria in the specification either.

[00:21:06] Speaker 02:
So they examined both the claims and the specification and found no criteria.

[00:21:09] Speaker 01:
So that's written description.

[00:21:11] Speaker 01:
Do you agree with me that whether it's written description is a written description issue, not a claim?

[00:21:18] Speaker 01:
indefiniteness issue or not?

[00:21:21] Speaker 02:
Well, I think if you're following through the indefiniteness analysis, you would first say, is there sufficient structure in the claim to carry out this such that it's understandable?

[00:21:29] Speaker 02:
If it's not, then you would go to the specification and say, is there some structure there that could fill that hole?

[00:21:34] Speaker 02:
And here the board found neither.

[00:21:36] Speaker 02:
But regardless, I think the board's finding of lack of written description as well as indefiniteness are supported by substantial evidence.

[00:21:46] Speaker 02:
And if any one of those

[00:21:48] Speaker 02:
is correct and not affected by claim construction, then the board's rejection of the amended claims needs to be upheld as supported by substantial evidence.

[00:21:56] Speaker 02:
So even if you were to disagree with the legal underpinnings of the indefiniteness finding, first of all, I don't think that's been preserved, but it really is irrelevant here because there are multiple alternative grounds to affirm as well.

[00:22:12] Speaker 01:
Okay.

[00:22:13] Speaker 01:
Thank you.

[00:22:14] Speaker 02:
Yes.

[00:22:14] Speaker 02:
Just to briefly touch on claim construction,

[00:22:17] Speaker 02:
As I understand Mr. Fleming's argument now, he's trying to say that these procedure selection limitations are really apparatus limitations.

[00:22:29] Speaker 02:
But we're dealing with claim 140 here, which is a method claim that requires increasing altitude.

[00:22:36] Speaker 02:
That's one of the method steps.

[00:22:38] Speaker 02:
And so there's a fundamental problem with the argument he's making in trying to divorce these structural limitations in the preamble, which he's adding through amendments.

[00:22:46] Speaker 02:
and the method steps.

[00:22:47] Speaker 02:
And I'd just like to direct the court's attention to one case on this issue, which is the Schumer v. Laboratory Computer Systems case at 3304 at 1310, Federal Circuit 2002, which addressed a similar argument and found that with the method limitations set out to complete invention, if there's not some linkage between structure set forth in the preamble,

[00:23:10] Speaker 02:
and the actual method steps that renders those structural limitations superfluous and meaningless.

[00:23:15] Speaker 02:
They just don't breathe life into the claim.

[00:23:17] Speaker 02:
And so I think what the board did in understanding the claims here is requiring some increase in altitude is the only reading of these claims that makes sense in the context of an IPR amendment where these amendments were proposed specifically to try to overcome a prior rejection.

[00:23:32] Speaker 02:
If those amendments are not effective and they're basically superfluous, then

[00:23:39] Speaker 02:
they can't accomplish that purpose.

[00:23:40] Speaker 02:
And so the board's understanding of these amendments was perfectly consistent with the claims as a whole.

[00:23:45] Speaker 02:
Also, just to reemphasize that Fleming's argument here would really, his claim construction argument would only exacerbate the lack of description finding because it would include only, not only would what the board found lacks written description, that would still be true, but he's arguing that the claim would include even more material because

[00:24:05] Speaker 02:
The second procedure could basically be anything under the sun, which is like facially lacking of written description support.

[00:24:15] Speaker 02:
Finally, in my last few minutes, I just want to touch on the original claims, claims 137 through 139.

[00:24:21] Speaker 02:
Again, the board's finding with respect to those claims was supported by substantial evidence.

[00:24:26] Speaker 02:
We do think this is a classic case of a losing party asking the court to reweigh the evidence on appeal, which is inappropriate under the substantial evidence review standard.

[00:24:35] Speaker 02:
And I think the perfect example of that is what we just heard from my counterpart with respect to the background references where he said, well, there's five that support our position and two that support Cirrus's.

[00:24:46] Speaker 02:
Without getting into the details of that, that's exactly what substantial evidence means.

[00:24:50] Speaker 02:
If there's two that support our position, that's enough.

[00:24:52] Speaker 02:
And here, we presented a compelling case of obviousness where James taught a switch that uses an autopilot to perform flight maneuvers and deploy a parachute.

[00:25:02] Speaker 02:
And the POH taught the specific flight maneuvers that should be performed to prepare for parachute deployment.

[00:25:08] Speaker 02:
So when you combine those teachings as our expert applying should be done in a detailed and thorough expert opinion, which the board repeatedly credited as credible and compelling, that is substantial evidence.

[00:25:20] Speaker 02:
And Fleming's, you know, picking and choosing of individual pieces of evidence that he thinks counsel towards a different outcome simply is not how the substantial evidence review is conducted.

[00:25:32] Speaker 02:
Unless the board has any further questions on that, I would cede the rest of my time.

[00:25:38] Speaker 03:
Thank you, Mr. Wagner.

[00:25:40] Speaker 03:
Mr. Dollar has some rebuttal time.

[00:25:43] Speaker 04:
Yes, thank you, Your Honors.

[00:25:47] Speaker 04:
Let me address first the idea that the board did not rely on its claim construction with respect to findings on written description support and indefiniteness.

[00:26:02] Speaker 04:
That is simply unsupportable.

[00:26:04] Speaker 04:
The board made efforts to announce a claim construction.

[00:26:09] Speaker 04:
We didn't explain it, but it certainly came out with one.

[00:26:13] Speaker 04:
And then if you look at the board's decision, it specifically quotes its claim construction on every finding that it made with respect to written description and indefiniteness.

[00:26:24] Speaker 04:
So the idea that somehow the board didn't rely on its claim construction I think is simply insupportable in light of the express

[00:26:31] Speaker 04:
language of the final written decision itself.

[00:26:35] Speaker 04:
On a second point, Judge Stahl, I think you are exactly right.

[00:26:43] Speaker 04:
There's no reason why the claim has to claim a specific detail from the specification in terms of how the selection is made.

[00:26:54] Speaker 04:
The claim certainly says the claim is configured to select between two procedures.

[00:26:59] Speaker 04:
It couldn't be any simpler really than that.

[00:27:02] Speaker 04:
If an accused device has some mechanism for selecting between two procedures, then it's covered.

[00:27:09] Speaker 04:
If it doesn't, then it's not covered.

[00:27:11] Speaker 04:
But the idea that Cirrus requires and the board, frankly, required that Fleming write something into its claim to specify the exact selection procedure that its claim would be limited to is simply not a requirement, a claiming requirement,

[00:27:29] Speaker 04:
and certainly not an issue that rises to the level of indefiniteness.

[00:27:35] Speaker 04:
The specification explains exactly a scenario in how a selection is made.

[00:27:41] Speaker 04:
The system stores the pull count of the deployment handle.

[00:27:46] Speaker 04:
If the count is one, it does one procedure.

[00:27:48] Speaker 04:
If the count is two, it does a second procedure.

[00:27:50] Speaker 04:
Now, that pull count concept was not specifically claimed.

[00:27:54] Speaker 04:
The claim was claimed more broadly.

[00:27:57] Speaker 04:
But again, I think Judge Stoller, you hit the nail on the head in recognizing that that's an issue of claim breadth, not an issue of claim indefiniteness.

[00:28:10] Speaker 04:
On the validity of claims 137 through 139, it's simply our position that there can't be substantial evidence when the board ignored evidence.

[00:28:24] Speaker 04:
Mr. Wagner made the point.

[00:28:26] Speaker 04:
We said that we concede that the two references are against this.

[00:28:29] Speaker 04:
We don't concede that.

[00:28:31] Speaker 04:
But what the issue is is there were seven references, all of which are important to the validity analysis, five of which were ignored completely.

[00:28:41] Speaker 04:
And again, I cited the cases to you that that is simply just an incorrect application of the

[00:28:50] Speaker 04:
reasoned analysis and adventure support requirement set forth in KSR, Orendi, and DSS, and a litany of other cases.

[00:29:00] Speaker 04:
Finally, another error in the board's analysis was the reason that it gave for being able to combine these references, PLH and James, when neither reference disclosed the missing claim limitation, the gap in the art,

[00:29:19] Speaker 04:
The way that the theorists and the board filled that gap is through their expert saying that, well, you know, we would arrive at the claim limitation, you know, not through reference to the, not through explicit disclosure and the references themselves, but because it would have been, quote, safe and logical to do that.

[00:29:39] Speaker 04:
Well, this court has held that safe and logical and active video is the generic concept that does not support

[00:29:48] Speaker 04:
a combination of references.

[00:29:50] Speaker 04:
I see my time is up, Your Honors.

[00:29:52] Speaker 04:
Thank you very much.

[00:29:52] Speaker 04:
I appreciate you listening to us.

[00:29:55] Speaker 03:
Thank you, Mr. Dahle.

[00:29:56] Speaker 03:
The case is submitted.

[00:29:57] Speaker 03:
That concludes today's arguments.

[00:30:03] Speaker 01:
The Honorable Court is adjourned from day to day.