[00:00:00] Speaker 02: OK, the next large case in this series is number 212128, Universal Electronics Incorporated against Roku Incorporated. [00:00:12] Speaker 02: Mr. Nicodema. [00:00:14] Speaker 00: Nice to see you again, Your Honor. [00:00:15] Speaker 00: So in this case, the challenge patents relate to a universal controlling device with a dual touch sensitive surface that has various features described by the challenge claims. [00:00:27] Speaker 00: And we contend that the board committed reversible error in finding that the HERS reference teaches what we call the second data limitations. [00:00:34] Speaker 00: The parties agreed to the construction of the second data limitations. [00:00:38] Speaker 00: And according to this construction, second data transmitted from the universal controlling device must be representative of the continuous contact from the first location to the second location on the touch sensitive surface. [00:00:53] Speaker 00: That was the agreed upon construction. [00:00:56] Speaker 00: Now, to satisfy the second data limitations, the second data must represent at least the starting location, which is the first location of the user's contact, and the end location, that's the second location of the user's contact on the touch-sensitive surface, and that there was not a break or discontinuity in the contact between the two locations. [00:01:18] Speaker 00: Now, this was confirmed by Roku's expert, Dr. Polish, [00:01:22] Speaker 00: And I refer, Your Honors, to appendix pages 7625 to 7627, paragraphs 20 to 24. [00:01:29] Speaker 03: Can I ask you, this is claim construction now, right? [00:01:33] Speaker 03: So the board has its claim construction, which is the party's agreed upon construction. [00:01:41] Speaker 03: Yes. [00:01:41] Speaker 03: And as I understand it, you're relying on the language representing [00:01:46] Speaker 00: Representative of. [00:01:48] Speaker 03: Well, I think you're interpreting the interpretation. [00:01:51] Speaker 03: Am I wrong? [00:01:53] Speaker 03: Because it doesn't really matter, but the interpretation is representative. [00:01:58] Speaker 03: So it doesn't really matter anyway. [00:01:59] Speaker 03: I don't want to dispute that with you necessarily. [00:02:02] Speaker 03: But I just want to make sure I understand. [00:02:04] Speaker 03: I think your view is that the only way data can represent [00:02:12] Speaker 03: the continuous contact from a first location to a second location is that it has to actually be that data. [00:02:20] Speaker 03: It can't be like my finger was here, then I dragged a window over here. [00:02:25] Speaker 03: It can't be like the end location of the window to represent the continuous contact. [00:02:29] Speaker 00: It has to represent. [00:02:30] Speaker 03: It has to actually be [00:02:32] Speaker 03: I'm just trying to understand your argument. [00:02:33] Speaker 00: Sure. [00:02:34] Speaker 03: It has to actually be like the finger moved from point x, y, 1, 2 to point, you know, just give all that continuous, all that data showing where the finger went. [00:02:46] Speaker 00: If you're talking about the dragging action, that's a different step. [00:02:50] Speaker 00: Now, if we look at a different step. [00:02:51] Speaker 03: I'm just trying to understand what you're saying, data representing continuous contact from the first location to the second location is. [00:02:57] Speaker 03: And let me tell you why, because I think representing is a pretty broad word. [00:03:01] Speaker 00: Well. [00:03:03] Speaker 00: Data being representative depends on the content of the data. [00:03:07] Speaker 00: Right. [00:03:08] Speaker 00: And I think what Your Honor is getting at is a dragging motion. [00:03:14] Speaker 00: But a dragging motion is the previous claim element, and I can show you where in the claims. [00:03:18] Speaker 03: I'm just trying to understand what your argument is. [00:03:20] Speaker 00: My argument is. [00:03:21] Speaker 03: Nobody agreed what the claim destruction is, that it has to be second data representing continuous contact from the first location to the second location. [00:03:28] Speaker 03: And there's no doubt that something is being sent [00:03:32] Speaker 03: But in the primary reference, having its data that causes the second display to move in the same way that the first display moves. [00:03:43] Speaker 03: So I'm trying to understand what your argument is and how you're reading representing to be so narrow. [00:03:49] Speaker 00: Well, I'm not reading it to be so narrow. [00:03:51] Speaker 00: I'm reading it now if you look at [00:03:54] Speaker 00: There's one disclosure from Hearst that the board relied on. [00:03:58] Speaker 03: But how are you interpreting? [00:03:59] Speaker 03: It's the content of the data. [00:04:01] Speaker 00: Let me apologize. [00:04:02] Speaker 03: I'm not doing a good job asking my question. [00:04:04] Speaker 03: What exactly is your interpretation of the board's interpretation? [00:04:09] Speaker 00: OK. [00:04:10] Speaker 00: You have to show data indicating where the user commenced the continuous contact. [00:04:18] Speaker 00: You have to show data. [00:04:21] Speaker 00: where the user terminated the continuous contact. [00:04:26] Speaker 00: And you have to show data giving an indication that there was continuous contact from the first location to the second location. [00:04:34] Speaker 00: And that's exactly what their experts said. [00:04:35] Speaker 00: Here's how you can satisfy this claim. [00:04:37] Speaker 03: Well, that's one way to satisfy it. [00:04:39] Speaker 03: But I understand that. [00:04:40] Speaker 03: But I mean, did the experts say the only way? [00:04:44] Speaker 03: And this is claim construction. [00:04:45] Speaker 03: So where is that? [00:04:48] Speaker 03: Why didn't you offer that as your claim construction? [00:04:52] Speaker 00: Well, I think implicit and data representative is that it has to be data. [00:04:57] Speaker 00: It has to be an indication in the data. [00:04:59] Speaker 00: It's not just somebody's motion across a touch-sensitive surface, because that's a previous claim element. [00:05:06] Speaker 00: It has to actually be the data. [00:05:09] Speaker 00: And their expert agreed with that. [00:05:13] Speaker 00: Pretty much every possible location. [00:05:16] Speaker 03: What other evidence for that claim destruction do you have besides this expert, the other side's expert? [00:05:23] Speaker 03: We can talk about that in a minute, but I just want to know what you're relying on. [00:05:27] Speaker 00: We're relying on their expert's testimony as to what that means. [00:05:33] Speaker 03: And where is that? [00:05:34] Speaker 00: And if you look at paragraphs 20 to 24 of Dr. Polish this time. [00:05:40] Speaker 03: Do you have an appendix page? [00:05:41] Speaker 00: Sure. [00:05:42] Speaker 00: 7625 through 7627. [00:06:02] Speaker 03: Paragraph 20. [00:06:05] Speaker 00: Beginning at paragraph 20 and going all the way. [00:06:07] Speaker 03: Where is the part where he admits that your construction is correct? [00:06:12] Speaker 00: Well, it's an agreed upon construction. [00:06:14] Speaker 00: Oh, I see. [00:06:16] Speaker 00: Well, he's talking about how our expert, Mr. Baer, says how the second data limitations can be satisfied. [00:06:24] Speaker 00: And then he gives his opinion beginning of paragraph 20 about how he thinks it can be satisfied. [00:06:33] Speaker 00: So my point here is, Your Honor, in each one of Dr. Polish's examples, [00:06:39] Speaker 00: He says that the second data has to include the location where the user commences the continuous contact, and he represents that by coordinates x and y. And what is he discussing in paragraph 20? [00:06:51] Speaker 03: Is he discussing the prior art, or is he discussing the patent and suit? [00:06:53] Speaker 00: No, no. [00:06:53] Speaker 03: He's discussing how the patent and suit works. [00:06:57] Speaker 00: Yes. [00:06:58] Speaker 00: How that second data limitations claim works. [00:07:01] Speaker 00: And in each and every one of his paragraphs, in each of his examples, [00:07:07] Speaker 00: He says that to come within the second data limitations, the location where the user commenced the continuous contact, that has to be part of the data. [00:07:15] Speaker 00: And he represents that as x1, y1. [00:07:18] Speaker 00: The location where the user terminates the continuous contact, he represents that by x2, y2. [00:07:24] Speaker 00: And an indication that there was continuous contact from the first location to the second location. [00:07:29] Speaker 00: So based on that, the disclosure from the HRSA reference that the board relied upon could not [00:07:37] Speaker 00: read on the second data limitations, because this is exactly the disclosure that's being relied upon. [00:07:43] Speaker 00: And if we look at appendix page 51, we see it. [00:07:46] Speaker 00: And I'll quote, talking about Hertz, the remote control issues the corresponding repositioning signals to the television set by transmitting the new location and or size of the PIP window as entered by the user. [00:08:02] Speaker 00: End quote. [00:08:04] Speaker 00: So what Hertz is disclosing is, [00:08:08] Speaker 00: Data representing one static location is being transmitted. [00:08:12] Speaker 00: It's not sending data representing the starting location, where the user commences continuous contact, or data representative of continuous contact from the first to the second location. [00:08:23] Speaker 00: Now, if we look at Dr. Polish's paragraph 26 of his declaration, that's appendix page 7628, I think it's really significant. [00:08:37] Speaker 00: His last sentence talking about Hearst, he says, thus, in response to the user stylus movement, Opposito would have understood the remote control to transmit at least an indication to the appliance, e.g. [00:08:57] Speaker 00: the television, to move the PIP window. [00:09:01] Speaker 00: And the position to which the PIP window is to be moved, e.g. [00:09:04] Speaker 00: an x, y coordinate. [00:09:07] Speaker 00: So he's not saying that there's any indication in the data of the first position by virtue of an xy-coordinate. [00:09:15] Speaker 00: He doesn't even mention the first position. [00:09:17] Speaker 00: Or that Hertz transmits data concerning, or that's representative continuous contact. [00:09:22] Speaker 00: He's saying what happens is data concerning the endpoint, where the user's engagement with the touch-sensitive surface ends. [00:09:36] Speaker 00: And that's it. [00:09:38] Speaker 00: And Roku's counsel made the same concession during the hearing before the PTAB. [00:09:43] Speaker 00: And that would be appendix page 7854 and 7859. [00:09:49] Speaker 00: So if the data that Hertz is transmitting is only the one static endpoint location, it doesn't meet the second data limitations. [00:10:05] Speaker 00: And I think what the board did here. [00:10:06] Speaker 03: The real dispute here is whether, just providing, if there's continuous movement, and then what's provided is the result of the continuous movement, not the continuous movement itself. [00:10:19] Speaker 03: I just want to make sure I understand your question. [00:10:21] Speaker 00: Sure, Your Honor. [00:10:21] Speaker 00: Please don't interrupt me, please. [00:10:23] Speaker 00: I'm not done yet. [00:10:24] Speaker 00: Oh, I'm sorry. [00:10:24] Speaker 03: Thank you. [00:10:26] Speaker 03: I think what you're saying is that, [00:10:28] Speaker 03: If, I'm not even going to ask. [00:10:30] Speaker 03: At this point, I've lost track of what I was saying. [00:10:33] Speaker 03: But I would really prefer that you not interrupt in the future. [00:10:36] Speaker 00: I appreciate it. [00:10:37] Speaker 00: I'm sorry. [00:10:41] Speaker 00: OK. [00:10:44] Speaker 00: I think what the board did is came up with a construction that was not the parties agreed upon construction, to read Hertz. [00:10:55] Speaker 03: What about if what the board did [00:10:57] Speaker 03: What they did was said that what the priority does by sending the end result of the continuous movement is data representative of that continuous movement. [00:11:08] Speaker 03: Why is that unreasonable given the breadth of the claim construction? [00:11:14] Speaker 00: Well, they didn't say that. [00:11:16] Speaker 03: Maybe they did. [00:11:17] Speaker 03: I thought they did. [00:11:18] Speaker 03: That's how I read it. [00:11:20] Speaker 00: They didn't say that. [00:11:21] Speaker 03: They didn't. [00:11:22] Speaker 03: You're challenging their factual findings by reinterpreting the claim. [00:11:28] Speaker 00: Well, I mean, these are the same positions that were taken before the PTAP. [00:11:35] Speaker 03: I understand, and it's a factual question, right? [00:11:38] Speaker 03: Substantial evidence. [00:11:39] Speaker 03: Because if you look at the claim construction, the claim construction is that the [00:11:45] Speaker 03: There's on the remote control device, there's movement taken, and then data representing that movement has to be sent, right? [00:11:57] Speaker 03: And your view is that the data representing the movement has to have three elements, the starting point, the ending point, and that it was continuous. [00:12:05] Speaker 03: But there's nothing about that in the proposed construction and represented by is much broader than that. [00:12:13] Speaker 00: Well, respectfully, Your Honor, I'd have to disagree because the party's experts [00:12:19] Speaker 00: both took a position on what that means. [00:12:24] Speaker 03: Respectfully, I'm not sure if Roku's expert did agree with that, Dr. Polish, because he, of course, is the one who said that the priority that teaches only providing the endpoint satisfies the claim limitation. [00:12:39] Speaker 03: I think that the parts you're relying on in his declaration are discussing just an embodiment in the patent. [00:12:46] Speaker 03: and not saying what the claim construction is. [00:12:48] Speaker 03: But you could tell me why I'm wrong. [00:12:50] Speaker 03: I just want to make sure you understand my concerns so you can address them here at oral argument. [00:12:54] Speaker 00: I do, Your Honor. [00:12:55] Speaker 00: I do understand your concerns. [00:12:56] Speaker 00: And I think he was just doing more than talking about an embodiment. [00:13:00] Speaker 00: If you look at his paragraphs 20 to 24, he's talking about every situation he could think of where the second data limitations could be satisfied. [00:13:13] Speaker 00: And each and every one of them [00:13:15] Speaker 00: He talks about sending data representing the beginning, the starting point, every one of them. [00:13:26] Speaker 00: I don't believe he's just talking. [00:13:27] Speaker 03: What about paragraph 24? [00:13:28] Speaker 03: There's a fourth example. [00:13:33] Speaker 00: OK. [00:13:37] Speaker 03: It says the fourth example would be providing the changing of first position to a second location. [00:13:44] Speaker 00: Yeah, and he has coordinates for both positions. [00:13:52] Speaker 03: Why does the first display, why does the, I hear what you're saying, but as a technical matter, doesn't the device that's receiving the information already know what the first location is? [00:14:04] Speaker 00: I'm sorry, Your Honor. [00:14:05] Speaker 03: Doesn't the device that's receiving the information already know what the first location is? [00:14:12] Speaker 03: Why would you need to send it? [00:14:14] Speaker 00: Because the claim talks about the second data limitation. [00:14:19] Speaker 03: It talks about sending data representative of the user's movement on the remote control device. [00:14:28] Speaker 00: Our position is that it's three conditions have to be satisfied. [00:14:32] Speaker ?: OK. [00:14:34] Speaker 00: I will save the rest of my time for rebuttal. [00:14:48] Speaker 01: May it please the court. [00:14:51] Speaker 01: I'll jump right to the section of the declaration. [00:14:55] Speaker 01: It's the reply declaration that counsel was relying on. [00:14:59] Speaker 01: And if you read paragraph 19, which is the paragraph ahead of what was quoted by counsel, it's very clear that Dr. Polish is responding there. [00:15:08] Speaker 01: to the Dr. Baer's arguments. [00:15:11] Speaker 01: And he qualifies what he's saying. [00:15:13] Speaker 01: He says he's responding to the particular embodiment, as Judge Stoll pointed out. [00:15:18] Speaker 01: And he's making very clear that I don't think my analysis can be limited to this embodiment. [00:15:24] Speaker 01: Even under this embodiment, there would be a lot of options. [00:15:27] Speaker 01: And he goes through a lot of ways this could be applied, because as you pointed out, representative of is a broad term. [00:15:34] Speaker 01: The other thing I think UEI's counsel gets hung up on, and I really do think this is just a really classic case of substantial evidence, because what UEI has argued in its briefs is really just looking at its case with the blinders on and kind of ignoring the rest of the evidence that goes against it. [00:15:54] Speaker 01: But here, if you look at what the court was construing, [00:15:59] Speaker 01: The second data being representative of what was being construed, the original language was moving touch, made across the touch-sensitive surface. [00:16:10] Speaker 01: Our evidence was focused at all times on showing that that second data was representative of a motion. [00:16:18] Speaker 01: And that's all that's required by this claim. [00:16:21] Speaker 01: And if you look at Dr. Polish's testimony, not citing just to the reply, which is what UEI cited you to, but if you look from the very beginning, it's very, very clear that our position is consistent, that there is motion being conveyed here. [00:16:38] Speaker 01: And that's all that's required. [00:16:40] Speaker 01: And Dr. Polish is very detailed. [00:16:42] Speaker 01: If you look at it in its simplest form, all we're talking about is in [00:16:48] Speaker 01: hers, it's a stylus, right? [00:16:50] Speaker 01: And the stylus goes across a tablet, and that sends a message to you, moving a PIP window, and that sends a message to your television or other device and says, do the same thing. [00:17:02] Speaker 01: You can't do that. [00:17:03] Speaker 01: What Dr. Polish says, it's not possible to accomplish that. [00:17:08] Speaker 01: without sending a message as to the motion that's occurring. [00:17:12] Speaker 01: That second data, that movement, and that second data and the conveyance of that to your television must include representation of the motion. [00:17:24] Speaker 01: And he goes in detail in explaining how that's disclosed in the context here. [00:17:29] Speaker 01: So I think it's a little bit of a moot point, because to the extent the motion has to include some of the details they're arguing, I would suggest Dr. Polish says that would be inclusive. [00:17:39] Speaker 01: But I don't think we have to go that far. [00:17:40] Speaker 01: What Dr. Polish says is, Episceto would have understood that hers is touchscreen display must use some form of data in order to make adjustments to what is displayed on the screen, as well as to be reproduced on the television screen. [00:17:54] Speaker 01: That's an appendix 2622 through 2623. [00:18:00] Speaker 01: What UEI is arguing here today is consistent with what the board rejected below. [00:18:06] Speaker 01: And it was the issue that was debated as to what representative that really meant. [00:18:13] Speaker 01: And what the board adopted was our argument. [00:18:17] Speaker 01: that you can't read all these added limitations into theirs to what the specific data would be. [00:18:23] Speaker 01: If you just look at the claim, there's no specifics in that claim that say the data must include point A, B, C, or D. There's nothing that says it can't go squirrely across the screen or that you have to tell it to go that direction before it reaches the other spot on the screen. [00:18:42] Speaker 01: The whole point of this claim is a broadly written claim. [00:18:45] Speaker 01: that allows you to move something here and make it happen up on your TV. [00:18:50] Speaker 01: And that's all that that did. [00:18:51] Speaker 01: Hers very clearly displays that. [00:18:58] Speaker 01: Would your honors like me to address the Finkelstein at all? [00:19:03] Speaker 01: It wasn't addressed by the dependent claims, the analogous art issue? [00:19:07] Speaker 03: If you do address those, then you will open the door for your adversary to address them on rebuttal. [00:19:12] Speaker 03: It's really up to you. [00:19:13] Speaker 01: We'll just stand on our brief. [00:19:15] Speaker 01: Do you have any other questions with respect to hers? [00:19:18] Speaker 01: No. [00:19:18] Speaker 02: Any questions? [00:19:20] Speaker 01: Thank you, Your Honor. [00:19:22] Speaker ?: Thank you. [00:19:31] Speaker 00: I'll be very brief, Your Honor. [00:19:33] Speaker 00: In response to Judge Stone, in response to one of your questions, I think counsel said that the second data limitations is just representative of a motion. [00:19:43] Speaker 00: I think she said that. [00:19:45] Speaker 00: Now if we look at appendix page 15, there's a claim element and a claim construction at the bottom of that page. [00:20:03] Speaker 00: And that claim term is second input type indicative of a motion made across the touch sensitive surface. [00:20:11] Speaker 00: That's the dragging motion. [00:20:13] Speaker 00: That's not the claim element we're talking about. [00:20:16] Speaker 00: The claim element we're talking about is on the very next page, appendix page 16, second data representative of the motion made across the touch sensitive surface. [00:20:27] Speaker 00: And that's where we get the agreed upon construction [00:20:30] Speaker 00: second data representative of the continuous contact from the first location to the second location on the touch-sensitive surface. [00:20:38] Speaker 00: So just saying that a prior art has a mousework with your finger you can drag from point A to point B is not addressing the second data limitations. [00:20:51] Speaker 00: It's addressing the previous claim element, second input type, indicative of a motion made across the touch-sensitive surface. [00:20:59] Speaker 00: So the limitation that we're talking about here with respect to Hertz, it's the content of the data that matters. [00:21:07] Speaker 00: And there's nothing in Hertz that the board identified showing that data representative of the continuous contact from the first location to the second location is transmitted. [00:21:23] Speaker 00: When we're talking about a dragging motion or [00:21:27] Speaker 00: representative of a motion, to use counsel's words, we're talking about the previous claim. [00:21:34] Speaker 00: And not the second date limitations. [00:21:38] Speaker 00: And if your honors have no further questions, we will stand on our briefs.