[00:00:00] Speaker 04: OK, we have two arguments this morning. [00:00:06] Speaker 04: We'll hear the first one now. [00:00:08] Speaker 04: This is appeal number 22-1211, in Ray Yu. [00:00:14] Speaker 04: So Mr. Yu, whenever you're ready. [00:00:18] Speaker 03: Good morning. [00:00:18] Speaker 03: My name is Stephen Yu. [00:00:19] Speaker 04: OK, Mr. Yu, can you please come to the lectern? [00:00:26] Speaker 04: And before you begin, are you reserving any time for rebuttal? [00:00:31] Speaker 04: Five minutes. [00:00:32] Speaker 04: Five minutes. [00:00:33] Speaker 04: OK, very good. [00:00:35] Speaker 04: OK, please begin. [00:00:36] Speaker 03: This case is not about the complexities of what the prior art says. [00:00:39] Speaker 03: There's no dispute about that. [00:00:41] Speaker 03: This case is about, what is the claim scope? [00:00:44] Speaker 03: Well, I say it's [00:00:50] Speaker 03: I addressed everything I wanted to say in my written briefs. [00:00:53] Speaker 03: I only have two more comments to bring to this oral argument. [00:00:56] Speaker 03: The first is, how does the Patent Office want applicants to write claims for standalone machine invention? [00:01:03] Speaker 03: For example, a car comprising an engine, four wheels, a drive shaft, a gearbox. [00:01:11] Speaker 03: You could just say that, just list the elements. [00:01:15] Speaker 03: But do I now have to say, [00:01:18] Speaker 03: The engine is physically part of the car. [00:01:22] Speaker 03: What else? [00:01:23] Speaker 03: Also, the wheels are physically part of the car. [00:01:26] Speaker 03: Oh, and also, the drive shaft is physically part of the car. [00:01:30] Speaker 00: Oh, and also- Why didn't you amend claim three to expressly require the control system to be physically on board the vehicle? [00:01:38] Speaker 03: The examiner wouldn't allow it. [00:01:42] Speaker 03: You tried to make the amendment? [00:01:44] Speaker 03: Well, I asked her, and I already examined her amendment. [00:01:46] Speaker 03: Would you allow? [00:01:47] Speaker 03: I'll just write it on board if that's what you want. [00:01:50] Speaker 03: She said it's not part of the disclosure. [00:01:54] Speaker 03: OK. [00:01:54] Speaker 03: Is that? [00:01:54] Speaker 03: So I'm just talking with this. [00:01:56] Speaker 03: It's a machine claim. [00:01:58] Speaker 04: Is that somewhere in the record, this dialogue with you and the exam? [00:02:03] Speaker 03: I think it's part of the appeal briefing, one of the appeal briefs. [00:02:08] Speaker 03: Oh, gosh. [00:02:11] Speaker 00: Do you have a page citation? [00:02:13] Speaker 03: I don't have the appeal. [00:02:14] Speaker 03: Well, the PPAP briefs with me. [00:02:17] Speaker 03: But the word on board is in there somewhere. [00:02:21] Speaker 03: I think I suggested it or she suggested it. [00:02:25] Speaker 03: But the result outcome was that you can't put that in there because it's not explicitly written in the specification. [00:02:35] Speaker 03: I'd love to. [00:02:37] Speaker 04: OK. [00:02:37] Speaker 04: The PTO brief, I believe, comes up with a different analogy, one with a television, and a television that comes with a remote control. [00:02:52] Speaker 04: I didn't see a response to that in your gray brief. [00:02:59] Speaker 04: Can we say that a remote control is part of a television, even though the remote control is not physically integrated with the actual television console? [00:03:11] Speaker 03: That's a system claim. [00:03:13] Speaker 03: If you have a television, standalone television, which is a machine, and a standalone remote control, which you can [00:03:19] Speaker 03: Claim separately if that's a novel invention. [00:03:22] Speaker 03: But that's an article of manufacture. [00:03:24] Speaker 03: a system comprising a television and a remote control and wireless communication with the television for controlling the television. [00:03:33] Speaker 04: What if the remote control was connected with a wire to the television? [00:03:40] Speaker 04: So you have the television set, right? [00:03:42] Speaker 04: And then you have a wire, and then you're holding the remote control. [00:03:45] Speaker 04: Would that be, in your view, OK to regard the remote control as part of the television in that scenario? [00:03:54] Speaker 03: Yes. [00:03:54] Speaker 04: OK, because of the wire. [00:03:56] Speaker 03: Well, it's physically. [00:03:58] Speaker 04: Right. [00:03:59] Speaker 04: So I guess that's the distinction you're making. [00:04:02] Speaker 04: A wired connection is OK, but a wireless connection is not OK. [00:04:11] Speaker 03: Yes. [00:04:11] Speaker 03: OK. [00:04:11] Speaker 03: Well, it's not a machine. [00:04:13] Speaker 03: Well, it's not part of a standalone machine. [00:04:21] Speaker 04: Your specification talks about [00:04:25] Speaker 04: and operations hub. [00:04:27] Speaker 04: that is remote from the vehicle and how there's a radio communications equipment that is physically a part of that vehicle that is in communications with the operations hub. [00:04:46] Speaker 04: And then the operations hub is described as having the ability to do certain kinds of control functions, including monitoring the vehicle [00:04:58] Speaker 04: Is that a way to regard perhaps, is that perhaps a disclosure that shows that perhaps through a wireless connection through radio communications equipment, the vehicle is, the operations hub is in a way serving the control system element of the claimed vehicle. [00:05:22] Speaker 03: It is, but I call it a system claim. [00:05:25] Speaker 03: I say in the specification, in the summary, a system comprising, not a machine, a system comprising, or some kind of controls, a system comprising an operations hub. [00:05:37] Speaker 03: That's one thing. [00:05:38] Speaker 03: The remote from that is the vehicle machine. [00:05:42] Speaker 03: So that's a system claim, which is an article in my literature. [00:05:46] Speaker 01: Your claim reads a vehicle comprising a system. [00:05:59] Speaker 01: Why can't it, under your argument, have an external function? [00:06:07] Speaker 01: The control system that you are talking about is programmed for autonomous driving. [00:06:13] Speaker 03: It can't be external if it's wired, but if it's remote, that's not a machine under the logical analysis. [00:06:21] Speaker 01: I know, but it's a system that's part of a machine. [00:06:25] Speaker 01: The machine of the autonomous vehicle is the machine, correct, in the claim? [00:06:30] Speaker 03: That is the machine. [00:06:31] Speaker 03: The rest of it, a system is an article of manufacture, which is one remote component and another remote component. [00:06:41] Speaker 01: My point is that your argument seems to be that the only circumstance in which we can consider an element that's external to the structure is if it's in a system, not in a machine claim. [00:06:55] Speaker 03: That's what the precedent says. [00:06:57] Speaker 01: But you're very clean as claiming a control system. [00:07:01] Speaker 01: Well, that is part of what it is. [00:07:04] Speaker 03: That's part of a machine. [00:07:05] Speaker 03: Well, I can call it something. [00:07:10] Speaker 03: That doesn't make it a system. [00:07:12] Speaker 03: One element being a computer system having computer chips. [00:07:17] Speaker 03: A control system is computer chip, radio wireless communication, memory. [00:07:23] Speaker 01: What you're saying is that any [00:07:26] Speaker 01: machine that has a control system in it converts the machine from a system. [00:07:34] Speaker 03: That's what the patent office is saying. [00:07:36] Speaker 03: I'm not saying that. [00:07:40] Speaker 01: Well, perhaps I'm simple-minded, but I'm confused, because you're claiming a vehicle. [00:07:45] Speaker 03: Yeah. [00:07:46] Speaker 01: Yes. [00:07:47] Speaker 01: And the vehicle has within it a number of things. [00:07:50] Speaker 01: That's what a comprising language means. [00:07:54] Speaker 01: So among the things that the vehicle has in it, the vehicle has a cargo compartment, power source, keypad, all these things. [00:08:04] Speaker 01: It also has into the system. [00:08:07] Speaker 03: Yes, but it does. [00:08:08] Speaker 03: But it doesn't make that one element [00:08:11] Speaker 03: does not make the whole claim a system. [00:08:14] Speaker 03: For example, a car can have a radio system. [00:08:18] Speaker 03: A car can have a GPS system. [00:08:22] Speaker 03: But that doesn't make the car itself a car or still a machine, not an article of manufacture. [00:08:34] Speaker 01: But the system that exists within the vehicle [00:08:39] Speaker 01: The system can have external components. [00:08:42] Speaker 01: Well, in this case, it's only the machine that can't have, in your theory, that can't have external components. [00:08:54] Speaker 03: Well, if the machine constrains everything, the whole body of the claim, then the control system cannot have any remote components. [00:09:01] Speaker 03: I mean, it's a vehicle which is a machine which is constrained to stand alone. [00:09:05] Speaker 03: And my reasoning is anything that [00:09:08] Speaker 03: is part of any subsequent element is also self-contained because it's part of the machine. [00:09:18] Speaker 03: Otherwise, it should have said a vehicle system. [00:09:23] Speaker 03: But I didn't say that. [00:09:24] Speaker 03: I said it's just a vehicle, a standalone vehicle. [00:09:29] Speaker 03: So just by that, it constrains the control system from not having remote elements. [00:09:36] Speaker 00: Do you agree that the in connection with language signals remote control? [00:09:41] Speaker 00: Do you agree with that statement? [00:09:44] Speaker 03: Please say again. [00:09:45] Speaker 00: Do you agree with the statement that in connection with could signal a possibility of remote control? [00:09:50] Speaker 00: Do you agree with that? [00:09:51] Speaker 03: Yes. [00:09:52] Speaker 00: You do? [00:09:53] Speaker 03: In connection with? [00:09:55] Speaker 03: Yeah. [00:09:56] Speaker 04: Would you like to save the rest of your time for the bottle? [00:10:00] Speaker 03: Yes. [00:10:01] Speaker 03: Or is it, I have five minutes? [00:10:03] Speaker 04: Yeah, you still have five and a half minutes, roughly. [00:10:07] Speaker 04: But that includes your five minute rebuttal time that you want to reserve. [00:10:12] Speaker 03: I'll just finish it here. [00:10:13] Speaker 03: I'll just leave no rebuttal time. [00:10:17] Speaker 03: Now, Patent Office says this is a BRI issue. [00:10:21] Speaker 03: And for the patent office, BI is a flex of fallback when it has no other counter argument. [00:10:28] Speaker 03: There's a much more fundamental problem in their analysis. [00:10:32] Speaker 03: But even if we look at this from a BI perspective, if you read a claim to crossover into a different statutory category, that's kind of unreasonable. [00:10:45] Speaker 03: That's unreasonable when you claim crosses a statutory boundary. [00:10:51] Speaker 03: For example, if a BRI turns a composition claim into a machine claim, that is unreasonable. [00:11:03] Speaker 03: I'll save the rest if I need to. [00:11:06] Speaker 02: OK, thank you. [00:11:07] Speaker 02: If he's quoting a William O'Marca for the PTO. [00:11:11] Speaker 02: I guess I have one comment in response to Appellant's position, Your Honor, on the claim construction. [00:11:17] Speaker 02: If we look at claim three. [00:11:18] Speaker 04: Before we get into that, can I just ask about, I don't know how familiar you are with the prosecution history for this examination, but is it true that the examiner somehow objected to Mr. Yu's attempt to amend the claims to add an onboard [00:11:34] Speaker 04: limitation to the control system? [00:11:37] Speaker 02: Yeah, I wasn't aware of that, Your Honor. [00:11:39] Speaker 02: It wasn't, as far as I know, it wasn't argued in any of the briefs here and I don't remember seeing it in the prosecution history. [00:11:43] Speaker 02: I'm not saying that didn't happen. [00:11:46] Speaker 02: I think it sounds like what he's saying is maybe the examiner said there might not have been written description support for that feature and I really can't speak to that because [00:11:57] Speaker 02: When you do read the specification, it talks about both onboard and off-board control. [00:12:03] Speaker 02: It doesn't talk about exclusive onboard control, which I think is what he's trying to claim. [00:12:07] Speaker 02: He wants it to be only an onboard control system, and no controls can come from anywhere else. [00:12:12] Speaker 02: But if you read his own disclosure, [00:12:15] Speaker 02: His disclosure says that the controls can be on board, but they can also be off board. [00:12:20] Speaker 04: As I understand his argument is that there is this remote control thing called an operations hub. [00:12:29] Speaker 04: But in addition to that, there's a vehicle that's out there in the field. [00:12:34] Speaker 04: And the vehicle itself has a control system that can autonomously drive the vehicle, but can also autonomously monitor things about the vehicle's condition. [00:12:45] Speaker 04: That doesn't take away from the fact that there's also a supplemental control system at the operations hub that could override the vehicle's control system if there's some kind of emergency. [00:12:57] Speaker 04: But nevertheless, the vehicle itself also has its own control system. [00:13:01] Speaker 04: And so what I'm wondering is, why isn't there written description support for that based on what is described here about the vehicle having its own control system? [00:13:11] Speaker 02: It doesn't sound like there is to me, but I mean, I wasn't [00:13:15] Speaker 02: Pretty to the conversation that he had with the examiner, and I don't know specifically What the examiner referring to however? [00:13:21] Speaker 02: I just like to point out the prior art has exactly what you just described The prior art I think the zini reference does have onboard control for autonomous control the vehicle and it also has a remote host for intervening when there's a problem and [00:13:35] Speaker 04: But the rejection here is not based on any kind of onboard control system from Zini's teachings. [00:13:43] Speaker 04: It's purely based on the idea that Zini has something called a remote host. [00:13:48] Speaker 04: And that's the control system. [00:13:50] Speaker 02: That's correct, Your Honor. [00:13:51] Speaker 02: And I think I know the reason for that. [00:13:52] Speaker 02: I kind of studied that over the weekend in my spare time. [00:13:57] Speaker 02: And if you look at the claim, let's first look at the claim, claim three. [00:14:02] Speaker 02: If you look at the inside cover of a red brief, we've got it reproduced there. [00:14:06] Speaker 02: It says the autonomous vehicle, claim one, further comprising a control system that is programmed for autonomous driving, number one, [00:14:14] Speaker 02: of the vehicle on a roadway and to monitor condition of the vehicle and to assess technical problems. [00:14:19] Speaker 02: If you look at the Zini reference, what you'll find is indeed Zini speaks all over the place about autonomous control. [00:14:27] Speaker 02: It has an onboard processor. [00:14:29] Speaker 02: It has an onboard controller for autonomous driving. [00:14:32] Speaker 02: However, when it assesses technical problems, that aspect it does remotely. [00:14:37] Speaker 02: So I think maybe that's why the examiner focused on that. [00:14:41] Speaker 04: Aspect of zini where there's the remote host that could pick up data when there's a problem Assess the problem do analysis and then step in if necessary So I think that could be the reason why it's written that way so the control system in zini is dedicated purely to the self-driving function has nothing to do with monitoring conditions of the vehicle itself and [00:15:06] Speaker 04: And that's why the rejection is based on the line on the remark post. [00:15:12] Speaker 02: I think that's correct, Your Honor. [00:15:13] Speaker 02: Yeah. [00:15:13] Speaker 02: And I think that's why it's written the way it is. [00:15:15] Speaker 02: So however, when you go look at [00:15:20] Speaker 02: uh... appellants own specification at page thirty-three of the appendix for example you'll see when they talk about the technical problems which is the phrase we're referring to in the claim of claim three assessing technical problems look at page thirty-three of the appendix between lines twenty nineteen and twenty-five and if you read that little this is a thirty-two yeah eight appendix thirty-two it says I'll take you there right now and I'm writing around line nineteen [00:15:49] Speaker 02: And it says, detection and or response to the problem, and if you look at the heading, technical problems, that's what they're talking about, may be performed autonomously or semi-autonomously. [00:16:00] Speaker 02: For example, the vehicle may detect and assess the technical problem on its own and find a safe parking on its own, or the problem may be assessed at the operations hub and the operations hub commands or guides the vehicle to a safe parking area, which means the claim language in claim three [00:16:17] Speaker 02: reasonably encompasses both self-control as well as external control. [00:16:23] Speaker 02: And I think the spec itself supports that reading. [00:16:26] Speaker 02: So I think the board's reading that the claim has got reasonable breadth to encompass both independent autonomous onboard control as well as external controls. [00:16:38] Speaker 02: That's a reasonable reading, and that encompasses the prior Artzini reference. [00:16:42] Speaker 02: And I think that's where the agency really is on this point. [00:16:47] Speaker 02: And I think Mr. Yu is correct. [00:16:50] Speaker 02: The case kind of boils down to claim construction here. [00:16:52] Speaker 02: That's really what our dispute is about. [00:16:57] Speaker 04: So given the board's reasoning here, is there any difference between a machine claim and a system claim? [00:17:09] Speaker 02: I don't think the differences that Mr. Yu has pointed out really exist. [00:17:13] Speaker 02: I think if you go back and look at, for example, the old, I think, 1890 Robinson treatise that he cited, I went and actually pulled that off the shelf. [00:17:22] Speaker 02: Luckily, we had a copy. [00:17:23] Speaker 02: And I read the exact quote that he cited to. [00:17:26] Speaker 02: And that quote is not about external components. [00:17:30] Speaker 02: That quote's more about an eligibility issue, if you go read it. [00:17:35] Speaker 02: So I don't think this distinction between it necessarily being a strict system claim or a machine claim is really an issue here. [00:17:44] Speaker 02: Here, clearly, we have a machine. [00:17:46] Speaker 02: We have an autonomous vehicle. [00:17:47] Speaker 02: But within the claim, claim three, there's a control system. [00:17:51] Speaker 02: And the control system controls that vehicle. [00:17:54] Speaker 02: But nothing in that claim limits it to the location of the control system. [00:17:58] Speaker 02: And I think that's his argument here. [00:18:05] Speaker 04: spaceship that went off to the moon. [00:18:10] Speaker 04: And it's being controlled by a station on Earth. [00:18:18] Speaker 04: Houston. [00:18:19] Speaker 02: At Houston. [00:18:20] Speaker 02: Yeah, base, yeah. [00:18:24] Speaker 04: Is that base station in Houston part of the spaceship? [00:18:32] Speaker 02: I would say it's part of the spaceship's control system, but not part of the spaceship itself. [00:18:37] Speaker 02: For example. [00:18:38] Speaker 04: OK, so then that's an example where it would be unreasonable to extend out the meaning of a spaceship to encompass the Houston base station. [00:18:51] Speaker 02: Agreed. [00:18:52] Speaker 02: But keep in mind what the claim says. [00:18:54] Speaker 02: If the claim would have said a controller on the autonomous vehicle, it doesn't say that. [00:19:01] Speaker 02: It says a control system that controls the vehicle. [00:19:04] Speaker 02: That's what it says. [00:19:05] Speaker 02: It doesn't say on the vehicle there's a controller, like a physical device. [00:19:09] Speaker 02: That would have been a little bit different, I think. [00:19:11] Speaker 02: It would have been structurally something that was on the device. [00:19:14] Speaker 02: Here, what it says, there's a control system that can be programmed. [00:19:18] Speaker 02: And yeah, part of that may be sitting on the autonomous vehicle. [00:19:23] Speaker 02: You can program it, and it's going to help the vehicle autonomously drive, and it's also going to help [00:19:28] Speaker 02: the vehicle assess technical problems and it's going to also help monitor the condition of the vehicle. [00:19:34] Speaker 02: And the specification itself says that that monitoring and that assessing can take place either on the vehicle or at the remote base station, I guess the hub, the operations hub. [00:19:45] Speaker 02: So I think a reasonable reading of the way this claim is written, it encompasses both. [00:19:51] Speaker 02: It's not limited to one. [00:19:53] Speaker 02: So I agree with your spaceship example. [00:19:56] Speaker 02: The spaceship's the spaceship. [00:19:58] Speaker 02: But the control system could include controls that are onboard as well as remote controls. [00:20:03] Speaker 02: And you gave a good example, I guess, with a TV. [00:20:06] Speaker 02: If it were wired, the controller could still be remote. [00:20:09] Speaker 02: You could still sit in your recliner and switch the channels with a wired controller. [00:20:14] Speaker 02: And that would be physically connected. [00:20:15] Speaker 02: But now we make it wireless. [00:20:17] Speaker 02: And you have the same controller in your hand, wirelessly transmitting data to the TV to control it. [00:20:23] Speaker 02: I don't see us. [00:20:23] Speaker 01: Why is it remote? [00:20:24] Speaker 01: Yeah. [00:20:25] Speaker 01: It's connected to the TV with a wire. [00:20:27] Speaker 01: Why is it remote? [00:20:28] Speaker 02: Yeah, I mean, because you're able to sit away from the TV and make your controls. [00:20:33] Speaker 02: Let's go back to like the 1960s when they didn't have wireless remote controls. [00:20:38] Speaker 02: But you could have had a wire for power, for on and off, a power, an extension essentially to allow you to control the TV. [00:20:45] Speaker 02: It would be part of the control system. [00:20:47] Speaker 02: I don't think the fact that there's a wire or that it's wireless changes the way we are going to evaluate that claim, Your Honor. [00:20:56] Speaker 02: And I think Mr. Yu's view is that it should change the way we evaluate the claim. [00:21:00] Speaker 02: And I just don't think that that's the agency's view here on claim construction. [00:21:08] Speaker 02: And it's true. [00:21:09] Speaker 02: There are things that we call system claims, which are, for example, a network of computers. [00:21:15] Speaker 02: They're networked together. [00:21:16] Speaker 02: They could be networked wired together. [00:21:18] Speaker 02: We could have five computers connected by hard wires, or they could be wirelessly linked. [00:21:23] Speaker 02: It's still a network of computers. [00:21:25] Speaker 02: It's still a system. [00:21:28] Speaker 02: We just don't make the hardcore distinction that Mr. Yu is making here on claim construction. [00:21:33] Speaker 02: We don't read this claim more narrowly or more broadly based on whether it's deemed a system or not. [00:21:43] Speaker 00: So the focus has been on Claim 3. [00:21:45] Speaker 00: Do you contend this court needs to take any action with respect to any of the other claims besides Claim 3? [00:21:50] Speaker 02: Yeah, I guess our view on that is that he hasn't argued those rejections of those other claims. [00:21:57] Speaker 02: And because they haven't been argued, the claims are still rejected. [00:22:01] Speaker 02: So even if the court weren't to say anything about them, when we went back to the agency, they would still be rejected claims. [00:22:06] Speaker 02: They wouldn't be reversed. [00:22:08] Speaker 01: Well, isn't the question argued? [00:22:10] Speaker 01: I mean, Rule 15. [00:22:13] Speaker 01: FRAP says that the notice of appeal specifies the order or part thereof to be reviewed. [00:22:21] Speaker 01: Right? [00:22:21] Speaker 02: Right. [00:22:22] Speaker 01: And I mean, at least rule three, which is the analog for appeals, notice of appeal from district courts, it's a jurisdictional structure. [00:22:33] Speaker 01: And so I was reading rule 15 AC, specify the order or part thereof to be reviewed, is [00:22:42] Speaker 01: limits what's in front of us. [00:22:46] Speaker 01: And if you look at his notice of appeal, he doesn't specify that he only wants claim three to be reviewed. [00:22:57] Speaker 01: And so it seems to me that the entirety of the order from which he's appealed is in front of us. [00:23:03] Speaker 01: And then the normal waiver arguments kick in when somebody simply doesn't make an argument. [00:23:09] Speaker 02: And that's what we put in our brief, that he didn't make arguments with respect to those claims, and he therefore forfeited. [00:23:17] Speaker 01: Well, you didn't tie it in your brief to, in essence, rule 15. [00:23:21] Speaker 01: We did not. [00:23:23] Speaker 01: Essentially going to a jurisdictional issue. [00:23:25] Speaker 02: What we did was just make our standard [00:23:29] Speaker 02: argument that we typically make when an appellant doesn't argue a particular set of claims and we basically say that argument's either been waived... Do we have jurisdiction to reach the other claims? [00:23:44] Speaker 02: I guess that's a tougher question. [00:23:45] Speaker 02: It sounds like what you're telling me from the rule, Your Honor, and I don't want to speak where I'm not 100% sure. [00:23:51] Speaker 02: But it sounds like you're saying the whole case is in front of you because of the rule. [00:23:55] Speaker 02: And because he didn't distinguish that in the notice of appeal, they are in front of you. [00:23:58] Speaker 02: But then because they weren't argued in the blue brief, you can then rule out them. [00:24:03] Speaker 01: So they're in front of us. [00:24:05] Speaker 01: And then the question is, well, for whatever reason, I don't quite understand why Mr. Yu deals this way. [00:24:13] Speaker 01: If we don't pass on, say, claim one, for example, the patent office has rejected it, and that's binding on him. [00:24:21] Speaker 01: So he's cooked with regard to that claim. [00:24:24] Speaker 01: He's not going to get another chance to come back. [00:24:27] Speaker 01: So I don't know what the real world effect is. [00:24:31] Speaker 01: But it seems to me that if we have jurisdiction, if it's in front of us, and we decide, oh, well, because Mr. Yu wants us to discard our normal rules, [00:24:43] Speaker 01: which would be that we would say he's waived any opposition, and you prevail, and we affirm on the merits. [00:24:50] Speaker 01: If we decide to waver him, what's the standard we use in the next case? [00:24:55] Speaker 01: How do we decide who to give the card to, the pass? [00:25:01] Speaker 01: And I don't know the answer to that. [00:25:02] Speaker 02: And I have to admit, I didn't give that level of sophistication to this. [00:25:07] Speaker 02: Because the way I saw it when I picked up the case is, here are some claims that were not argued. [00:25:11] Speaker 02: Here are rejections that weren't argued. [00:25:13] Speaker 02: Waiver slash forfeiture, that's what I was doing. [00:25:17] Speaker 01: The reason I got concerned about it is that rule three on appeals from district courts [00:25:22] Speaker 01: used to read exactly the same as Rule 15 does now. [00:25:26] Speaker 01: But two or three years ago, it was amended because it was a trap for the unwary. [00:25:30] Speaker 01: People didn't know exactly what they had to do to specify a piece of the appeal and non-specify. [00:25:37] Speaker 01: And so that rule was changed to make it quite clear that basically the entire case is in front of an appellate court, unless there is a very specific [00:25:50] Speaker 01: delineation of the piece that's taken out. [00:25:53] Speaker 01: Now that very specific delineation requirement that's now in Rule 3 is not in Rule 15. [00:25:59] Speaker 01: So Rule 15 goes back to the earlier stages. [00:26:02] Speaker 02: I think from a practical standpoint, the point you're making to me is that when we first saw the Notice of Appeal, we assumed everything was on appeal. [00:26:11] Speaker 02: But then when the blue brief came in, that's the first time we realized certain rejections were being argued. [00:26:17] Speaker 01: To be accurate, when the Notice of Appeal was filed, the Notice of Appeal cites [00:26:20] Speaker 01: The entirety says the decision. [00:26:24] Speaker 01: And the first docking statement made by Mr. Yu repeated that. [00:26:30] Speaker 01: His docking statement was rejected because it failed in the name of second party. [00:26:35] Speaker 01: You then came in with your document statement, and you said specifically you want clear review of claims 1 to 1820 and the rest. [00:26:43] Speaker 01: So he was on notice that you were inestimating the entire record in front of us. [00:26:48] Speaker 01: He then filed an amended declaration that went back saying he wants the whole case. [00:26:54] Speaker 02: And then we didn't think of waiver or forfeiture until the blue brief came in. [00:26:58] Speaker 02: That's the first time [00:27:00] Speaker 02: We, myself, I was the lawyer working on it. [00:27:03] Speaker 02: That's the first time that ever came into my mind was at the time of the blue brief. [00:27:06] Speaker 02: Prior to that, we believed everything was in front of the court. [00:27:10] Speaker 02: And that's not uncommon for it to happen that way. [00:27:12] Speaker 02: I mean, that's kind of very common where an appellant [00:27:17] Speaker 02: just says I'm seeking review of the board's decision of all the rejected claims. [00:27:22] Speaker 02: And then when the brief comes in, they choose to just limit their arguments to a certain portion. [00:27:27] Speaker 02: And we then point out the rest of those things have been waived or forfeited. [00:27:31] Speaker 02: So that's very typical to the way it works from our perspective. [00:27:35] Speaker 02: It's just you've asked me a question that's really beyond my knowledge level. [00:27:39] Speaker 02: And I don't really want to answer because I don't want to be inaccurate. [00:27:48] Speaker 04: Mr. Yu, you still have some time remaining. [00:27:55] Speaker 04: Could you just pick up on the dialogue we were having with Mr. Lamarca on which rejected claims are before us today on appeal? [00:28:05] Speaker 04: Claim three. [00:28:06] Speaker 03: Just claim three. [00:28:07] Speaker 04: Just claim three, and I suppose the claims that depend from claim three? [00:28:12] Speaker 03: There may be. [00:28:13] Speaker 03: I don't remember. [00:28:19] Speaker 04: Your docking statement didn't specify which rejected claims you were seeking to appeal. [00:28:26] Speaker 04: Your docking statement, when you filed your notice of appeal, just indicated that you wish to appeal the decision by the patent board. [00:28:36] Speaker 04: So there's one reasonable reading of that is that you're appealing [00:28:43] Speaker 04: all of the board decision that was adverse to you as to each and every single one of the rejected claims. [00:28:53] Speaker 03: That would have been a big brief and a lot of reading. [00:28:57] Speaker 03: I avoided that, my decision. [00:29:01] Speaker 01: Well, the reason why I had a concern for you is that the rule which governs [00:29:08] Speaker 01: issue, the rule states that the petition for review shall specify the order or part thereof to be reviewed. [00:29:21] Speaker 01: That's the law. [00:29:22] Speaker 01: And so I would assume that if you only wanted claim free to be reviewed, your notice of appeal would have identified [00:29:33] Speaker 01: Claim 3 as a part of the order that you want to review. [00:29:38] Speaker 01: So in fairness to these other side as well, our rules [00:29:50] Speaker 01: provide a form for you for a notice of appeal. [00:29:53] Speaker 01: And the form doesn't provide an option for how you can designate a part. [00:29:59] Speaker 01: And so I can understand why, in this notice of appeal, you, in essence, copied our form by identifying the decision that's available. [00:30:09] Speaker 00: And Mr. Yu, if you want, you're allowed to take your mask off during argument. [00:30:12] Speaker 00: You don't have to. [00:30:13] Speaker 00: No pressure, but it's up to you. [00:30:15] Speaker 03: I have two minutes. [00:30:16] Speaker 03: I did want to. [00:30:17] Speaker 03: Yeah, please, go ahead. [00:30:18] Speaker 03: I disagree that, again, disagree that this is a claim construction issue. [00:30:21] Speaker 03: There's a more fundamental problem here that's not recognizing distinct classes with inventions in statute 101. [00:30:31] Speaker 03: This is not claim construction. [00:30:33] Speaker 03: This is the 21st century. [00:30:34] Speaker 03: I know maybe old-fashioned machine claims aren't a commercial thing anymore. [00:30:40] Speaker 03: But patent applicants still need to have some way of claiming a standalone machine without this mess of accessory words having to say physically part of, physically part of, repeatedly physically part of. [00:30:53] Speaker 03: And the statutory classes provided a way to do that simply. [00:31:02] Speaker 03: Now the patent office wants to take away, combine those two classes, statutory classes, [00:31:09] Speaker 03: So now it's taking away one of the statutory classes. [00:31:19] Speaker 03: I have nothing further. [00:31:20] Speaker 04: OK. [00:31:21] Speaker 04: Thank you. [00:31:22] Speaker 04: Thank you, Mr. Yu. [00:31:23] Speaker 04: The case is submitted.