[00:00:00] Speaker 01:
2020-1921, Zaxcon versus Electrosonics.

[00:00:07] Speaker 01:
Obviously, the issues are similar if not the same.

[00:00:11] Speaker 01:
We don't necessarily need to hear repetition, but the time is yours.

[00:00:16] Speaker 01:
And to the extent you didn't quite have enough time, you're entitled to use your time as you see fit.

[00:00:24] Speaker 01:
Mr. Greenspoon.

[00:00:26] Speaker 00:
Yeah, thank you again, your honor.

[00:00:28] Speaker 00:
And good morning again, your honors may it please the court in this companion appeal.

[00:00:32] Speaker 00:
I'd like to focus on different board errors from what we find in the 1350 case.

[00:00:37] Speaker 00:
And here we have two patents, the 902 patent and the eight 14 patents.

[00:00:41] Speaker 00:
These just for procedural framework.

[00:00:43] Speaker 00:
These were consolidated.

[00:00:46] Speaker 00:
Appeals at this court from two final written decisions, um, judges in one regard, the nexus error is more plain than in the other appeal because now

[00:00:56] Speaker 00:
The board overlooked the claimed concepts in the objective evidence of time code management.

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Those are expressed call outs in the bullet points that Mr. Bell says that we should be paying such close attention to.

[00:01:09] Speaker 00:
So that's expressed linkage between text in the award materials and novel claim combinations.

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And the board's error, and again on the original claims, the board's error was to deprive Zaxcoma of its nexus finding for that.

[00:01:23] Speaker 00:
That's all I think I want to say on Nexus for this appeal because we've said quite a bit already.

[00:01:29] Speaker 00:
I'd like to move on and focus

[00:01:30] Speaker 00:
differently.

[00:01:32] Speaker 04:
Mr. Greenstein, can I just ask one question?

[00:01:37] Speaker 04:
Mr. Bell, at the very conclusion of the previous argument, made a point about how, I'm going to translate this, that there was actually an anticipation showing, so secondary considerations are legally immaterial, so it doesn't really matter on those and the board on the substitute claims.

[00:01:57] Speaker 04:
made a decision effectively based on the secondary considerations which should have been legally immaterial.

[00:02:03] Speaker 04:
Is that same point at issue in the current appeal?

[00:02:09] Speaker 00:
You would have to ask Mr. Bell, but in this appeal there is the same kind of lineup of one claim anticipated perhaps or one claim set anticipated and other claims rendered obvious under the original.

[00:02:22] Speaker 04:
If it's here before you move off of the obvious,

[00:02:27] Speaker 04:
secondary considerations.

[00:02:28] Speaker 04:
What's your answer to the point?

[00:02:30] Speaker 00:
Well, the claims held invalid for obviousness have extra elements that even the board was convinced meant that they were not anticipated.

[00:02:39] Speaker 00:
So we're now straight into the middle of why we have objective evidence in the first place in our case law is to prevent the hindsight bias from seemingly simple sounding inventions being held invalid when they're actually groundbreaking.

[00:02:55] Speaker 00:
And I think... So, I'm sorry.

[00:02:56] Speaker 04:
I'm sorry.

[00:02:57] Speaker 04:
Are you saying that all of the claims that are currently at issue were held invalid only under 103, none of them under 102?

[00:03:08] Speaker 00:
Not correct.

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The claim 12 in each of these appeals, the companion appeals, was held anticipated.

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So, in this appeal, when I focus on the obvious mistakes, if you will, I'm focusing on claim one and claim

[00:03:24] Speaker 00:
Well, claim seven of the 902 patent in this appeal and claim one of the 814 patent also in this appeal.

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And then in the other appeal from earlier today, claim one of the 307 patent.

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So it's a motley mix.

[00:03:39] Speaker 00:
We do have to pay attention to that.

[00:03:40] Speaker 00:
I agree with that.

[00:03:42] Speaker 04:
But anyway, the 902... I'm sorry.

[00:03:45] Speaker 04:
I'm sorry for harping on this, but I'm just trying to figure out, are you agreeing that at least

[00:03:50] Speaker 04:
one or more of the substitute claims both here and in the previous case were incorrectly upheld?

[00:03:57] Speaker 00:
No, no, no, no, no.

[00:03:58] Speaker 00:
I was saying that I'll be very precise.

[00:04:02] Speaker 00:
I'll concede that if the claim construction is not changed by this court, then the anticipation holdings in the 307 patent case from earlier today should be upheld.

[00:04:16] Speaker 00:
And I'm going to get into a technical argument showing that there is a misperception of what's in the prior art for the appeal we're arguing now.

[00:04:24] Speaker 00:
So I'm arguing against anticipation and obviousness in the upcoming remarks for this appeal.

[00:04:30] Speaker 00:
I know it's spotted.

[00:04:34] Speaker 00:
I understand that.

[00:04:36] Speaker 00:
So Claim 7 of 902 and Claim 1 of 814 each require two things that the prior art combination lacked.

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a particular time sync architecture, which is a master time code generator controlling a local audio device's local generator, and also the wearability that the claims require.

[00:04:55] Speaker 00:
And I'll start with the master time code generator, because the board located this feature in a reference called woo, but taking woo for all it teaches, it's just, your honors, it's just not there.

[00:05:06] Speaker 00:
There was no substantial evidence in the record for the board to find this element in woo.

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The proof of this is appendix 1556,

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the reference itself, starting column seven, line 27, where there are ports going into an audio device, but inside the audio device, there's no local time code generator at all.

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It just thoughtlessly takes the codes created externally in a GPS unit.

[00:05:32] Speaker 00:
That's it.

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That's not what Zaxcom's patents are about, which require a fully operable

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local time code generator in the audio device, and we briefed this, that serves a purpose, which is if the master sync is unavailable, the local can continue to run freely to keep stamping the audio.

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Now, there is a part of Woo that sends master codes to a local generator.

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That's a thin disclosure in Woo in the same place I just mentioned.

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But what you can see is that this part of Woo is not about audio devices.

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It is for a camera.

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So this part of Woo sends the generated time codes to a camera, not to a local audio device with its own local time code generator receiving master codes.

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So let's turn to the wearable limitation.

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And, Your Honors, if you agree with Daxcom about Woo, as I just argued, you don't have to reach wearable.

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And here the focus is on Strub.

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Strube is not wearable.

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It just is not in the context of the intrinsic record.

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And this should be an easy call for the court based on the prosecution history.

[00:06:39] Speaker 00:
There's a device.

[00:06:40] Speaker 01:
It looks like what Strube is wearing is wearable.

[00:06:45] Speaker 00:
In a general layperson sense, absolutely.

[00:06:48] Speaker 00:
I agree.

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I don't contend otherwise.

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But that's why we look to the patent intrinsic record

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which is communicated as its own public notice beacon to members of the interested public.

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And in this case, that would be technologists in the field of performance audio and performance audio recording.

[00:07:07] Speaker 04:
Is this a claim construction argument you're making or that even under the verbal formulation adopted by the board as the claim construction, it's simply unreasonable to find that the shrub backpack-like thing is wearable?

[00:07:25] Speaker 00:
I wouldn't mind prevailing if it's considered a factual reading instead of a claim construction, but I think more fairly it's a claim construction argument.

[00:07:34] Speaker 00:
The reason why you could construe it as a factual reading is because we have expert testimony in the record where electronic experts said that a backpack is not wearable in this context.

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That's a fact.

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And Strubb discloses backpacks, straps, headband, et cetera.

[00:07:52] Speaker 00:
There's a device called the Niagara 5 that prompted the original wearable term to enter the claims in the first place.

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And adding the wearable term to the claims overcame the prior art, overcame the Niagara 5.

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And the examiner explicitly agreed.

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So that set the boundary condition for the public notice function of the intrinsic records.

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This told the public that anything bigger than Niagara 5 cannot be wearable in the context of this art, this industry, this patent specification, and these claims.

[00:08:22] Speaker 00:
And there is no size dispute about Struv.

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It is bigger by far than Niagara 5.

[00:08:28] Speaker 00:
So while in a sense, Judge Lurie, as you've observed, you know, Struv does get strapped to the body using a backpack, but it's not wearable in the intrinsic record sense.

[00:08:37] Speaker 00:
And we briefed how Electrozone expert confirmed that a hiking backpack

[00:08:41] Speaker 00:
is not wearable in this sense, because the context is performer body packs.

[00:08:46] Speaker 00:
And look at me on this video, Your Honor.

[00:08:49] Speaker 00:
I mean, if I were wearing a backpack with my wireless audio equipment, you would see it.

[00:08:56] Speaker 00:
Your Honors would easily conclude I could not perform in a TV show or a film.

[00:09:00] Speaker 04:
I mean, I'm not sure we would see the Strum backpack, which is not

[00:09:08] Speaker 04:
to some kind of low slung and smallish as backpacks go.

[00:09:14] Speaker 00:
In this art, Your Honor, that's gigantic.

[00:09:18] Speaker 00:
I mean, there's no way a performer could enter every scene wearing the scrub backpack, even if you consider it a small backpack.

[00:09:26] Speaker 00:
In this art, that would just be absolutely anathema, absolutely forbidden.

[00:09:31] Speaker 00:
We just don't do that.

[00:09:32] Speaker 00:
We have tiny unobtrusive body packs.

[00:09:34] Speaker 00:
That's what the art is all about.

[00:09:36] Speaker 00:
So wearability comes down to respect for the intrinsic record, respect for electros expert admissions.

[00:09:42] Speaker 00:
Strub is not wearable, and that's the second reason why the combination should not have led to obviousness.

[00:09:47] Speaker 00:
So the combination lacks the flame limitation.

[00:09:49] Speaker 00:
Again, this is an argument that doesn't directly address anticipation, I believe, although let me,

[00:09:57] Speaker 00:
put a pin in that, because I might have to check something.

[00:10:00] Speaker 00:
But the combination lacks the claim limitations.

[00:10:02] Speaker 00:
The objective evidence was strong, and the court should reverse the board.

[00:10:05] Speaker 00:
And I'd like to reserve the rest of my time for a bottle.

[00:10:08] Speaker 01:
Thank you.

[00:10:09] Speaker 01:
We will do that.

[00:10:09] Speaker 01:
Mr. Bell.

[00:10:13] Speaker 03:
Thank you, Your Honors.

[00:10:14] Speaker 03:
I'll start with addressing two things.

[00:10:16] Speaker 03:
First of all, counsel just stated that the original claims in the 3S7 case did not include wearable.

[00:10:22] Speaker 03:
They did.

[00:10:23] Speaker 03:
FACTS chose not to appeal that issue in the first case.

[00:10:27] Speaker 03:
I only chose to appeal that issue in these later cases.

[00:10:30] Speaker 04:
Second, you heard... Can I just ask on that?

[00:10:33] Speaker 04:
I know that the government makes an issue preclusion argument.

[00:10:37] Speaker 04:
You did not make that.

[00:10:38] Speaker 04:
You invoked 315E, which would seem... Yes.

[00:10:43] Speaker 04:
...quite not applicable because it's not the same claim.

[00:10:47] Speaker 03:
Well, the claim element is the same.

[00:10:49] Speaker 04:
315E is not about claim elements.

[00:10:53] Speaker 04:
It's about the claim, different claims here.

[00:10:58] Speaker 03:
I understand your position, you're okay.

[00:11:03] Speaker 03:
So first on wearability, you heard Mr. Greenspoon talk repeatedly about how Zaktown's product is a body pack.

[00:11:10] Speaker 03:
There was also claims here to a body pack that they did not appeal.

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And those were maxed to figure nine of the strong reference, which is not a backpack.

[00:11:19] Speaker 03:
It is a most long belt pack that includes all of the components.

[00:11:26] Speaker 03:
On the Nexus issue, they are largely the same here, except for two things.

[00:11:32] Speaker 03:
I think it's very important to note Mr. Greenspoon's focus on timecode and how essential that was to Zach's common invention.

[00:11:38] Speaker 03:
Because now we're talking about another set of claims where they're saying everything is about timecode, right?

[00:11:43] Speaker 03:
That is what makes the invention work.

[00:11:45] Speaker 03:
It's timecode.

[00:11:46] Speaker 03:
They're saying that that is the essential feature, and that is in two of the claims here.

[00:11:52] Speaker 03:
7 of the 902 and claim 1 of the 814.

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But it is not in the claims of 307.

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And it's not in claim 12 of the 902 pattern.

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So what they're telling you is the essential feature and what makes this great is not in all of their claims.

[00:12:07] Speaker 03:
And the problem for them, particularly with regards to the local time code generator, is the board found that that was disposed by STRUMP.

[00:12:14] Speaker 03:
So when we look again at what they are mapping, if you go to their appendix sites, APPX,

[00:12:21] Speaker 03:
541.

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What they said is co-expensive.

[00:12:24] Speaker 03:
The product that they mapped is the local audio device.

[00:12:27] Speaker 03:
They didn't map the master time code generator.

[00:12:29] Speaker 03:
They didn't map the remote recorder.

[00:12:31] Speaker 03:
They mapped just the elements of the local audio device.

[00:12:35] Speaker 03:
And all of those features are in Scrub for the claims that were found and anticipated.

[00:12:39] Speaker 03:
The only thing that was missing from Scrub in the claims that were not found and anticipated was the fact that it required an audio input

[00:12:48] Speaker 03:
Something that even Zaxcon does not dispute would be obvious to have an audio input between the microphone and the body pack or built in.

[00:13:02] Speaker 04:
Unless your honors have any further questions, I'll reserve the remainder of the time.

[00:13:08] Speaker 04:
You ended your previous argument by saying something about how secondary considerations are immaterial to something or other because that something or other is really anticipated.

[00:13:20] Speaker 04:
Is there such a point here, and I don't really understand, well, I don't actually understand the scope of the point.

[00:13:29] Speaker 04:
Is this about the upheld substitute claims?

[00:13:34] Speaker 03:
Yes, Your Honor.

[00:13:35] Speaker 03:
I think the key issue is that Zach Allen has argued

[00:13:38] Speaker 03:
In its original patent owner response, their arguments below were that claim 12 of the 307 patent and claim 12 of the 920 patent, which were found to be anticipated by the board, were within the scope of what had industry praise.

[00:13:56] Speaker 03:
Their expert argued that all of the issued, originally issued claims had industry praise.

[00:14:01] Speaker 03:
And if the claims that are anticipated were commensurate in scope with the industry praise, then,

[00:14:08] Speaker 03:
we have this clear finding that what the industry praised was all in the prior art.

[00:14:14] Speaker 03:
So it makes no sense that we would now look at other claims that add other features, and that those two, under the same evidence of praise, would therefore be obvious when you added something that's not really the core of their invention, something like the replacing element, which even their own expert admitted was known, so long as you had the backup.

[00:14:34] Speaker 03:
And the concept of the backup all shows up in the local audio device,

[00:14:38] Speaker 03:
into the same extent as in their product and in the claims, it's also in scope.

[00:14:44] Speaker 04:
And just one thing, I don't recall that you have disputed that the placing language is limited to replacement because of transmission, i.e.

[00:15:00] Speaker 04:
dropout, even though that word by itself, replacing, would seem to be independent of the reason you're doing the replacing.

[00:15:09] Speaker 03:
Yes, Your Honor.

[00:15:10] Speaker 03:
We did not argue.

[00:15:12] Speaker 03:
Replacing means replacing.

[00:15:13] Speaker 03:
It does not encompass all forms of dropout repair.

[00:15:16] Speaker 03:
There could be mixing.

[00:15:17] Speaker 03:
There could be blending.

[00:15:18] Speaker 03:
There's all different ways of doing it.

[00:15:19] Speaker 03:
This is just one specific way that they added to get around scrub, because scrub already discloses when it's blending.

[00:15:25] Speaker 03:
So they had to go that narrow.

[00:15:29] Speaker 01:
Ms.

[00:15:29] Speaker 01:
Filfin.

[00:15:32] Speaker 02:
Thank you, Your Honors.

[00:15:34] Speaker 02:
I don't want to re-plow old ground, but just

[00:15:39] Speaker 02:
To pick up on the point about industry praise for the original claims, that was all under Zaxcom's understanding of the original claims or claim construction of the original claims where they were reading those original claims to be as narrow as the board is reading the amended claims, right?

[00:16:03] Speaker 02:
So the original claims, the arguments about

[00:16:09] Speaker 02:
industry praise apply to the amended claims in the same way because the reading of those claims was effectively the same.

[00:16:19] Speaker 02:
They were reading the original claims as if they were as narrow as the amended claims.

[00:16:24] Speaker 02:
So I just wanted to, I don't know if that clarifies anything or makes it worse, but anyway, that was something I wanted to mention.

[00:16:34] Speaker 02:
And then to go back to a point, I think it was from the,

[00:16:39] Speaker 02:
earlier the previous argument, but I just wanted to note, Judge Toronto, you asked about whether the weighing of secondary considerations is an issue of law or fact.

[00:16:51] Speaker 02:
KSR says that the obviousness question is a question of law with underlying factual determinations, including secondary considerations.

[00:17:00] Speaker 02:
So secondary considerations overall is a question of fact.

[00:17:04] Speaker 02:
I think it's true that there is a legal sort of

[00:17:09] Speaker 02:
kernel in there of the presumption and burden shifting analysis, but the ultimate question on secondary considerations is one of fact.

[00:17:19] Speaker 04:
My question is, let's assume there's something of non-zero weight under this broad heading of secondary considerations, which cover a lot of ground.

[00:17:32] Speaker 04:
The weighing of that something against the art-based

[00:17:38] Speaker 04:
analysis, often called prima facie, is a legal analysis.

[00:17:43] Speaker 04:
I'm sure we have said that.

[00:17:44] Speaker 04:
I'm pretty sure the Supreme Court has said that, right?

[00:17:48] Speaker 02:
I don't recall seeing that, but I could imagine that that's true, because it's, again, a question of sort of whose burden you're putting the, who has the burden in a given situation.

[00:18:07] Speaker 04:
But if that were not true, how would it be true that obviousness is a question of law?

[00:18:15] Speaker 02:
France is a question of law with underlying factual determinations.

[00:18:20] Speaker 02:
And then the factual determinations include secondary considerations, include what the prior art says, include a bunch of subsidiary questions.

[00:18:30] Speaker 02:
And then the ultimate question of, I guess it's similar to what you're saying, how you

[00:18:36] Speaker 02:
weigh all of those things and decide whether the invention is obvious is a question of law.

[00:18:45] Speaker ?:
Okay.

[00:18:47] Speaker 02:
And I'm happy to answer any questions.

[00:18:49] Speaker 02:
That's all I had to affirmatively say.

[00:18:53] Speaker 04:
Can I just, this one thing which I think I'm getting close to clear but I'm not

[00:18:58] Speaker 04:
clear enough.

[00:19:00] Speaker 04:
And that's this point which I understood Mr. Bell initially to make that some aspect of the board's upholding of substitute claims was really about anticipation and should therefore never have even considered as to those claims, the anticipated ones, any secondary considerations.

[00:19:25] Speaker 04:
I thought later maybe I heard him say, no, he's just making a point about the scope of the praise analysis or something.

[00:19:34] Speaker 04:
Can you enlighten me on this?

[00:19:37] Speaker 02:
I think it's the latter.

[00:19:38] Speaker 02:
So there's anticipation with respect to the original claims.

[00:19:43] Speaker 02:
There is no anticipation argument anywhere with respect to the substitute claim.

[00:19:50] Speaker 04:
OK, I think that fully answers my question.

[00:19:52] Speaker 04:
Thank you.

[00:19:54] Speaker 01:
Thank you, Ms.

[00:19:55] Speaker 01:
Stilfen.

[00:19:55] Speaker 01:
Mr. Green has some time left.

[00:20:01] Speaker 00:
Thank you, Judge.

[00:20:01] Speaker 00:
So just three quick points.

[00:20:04] Speaker 00:
I agree with Ms.

[00:20:04] Speaker 00:
Stilfen and the director that the assigned weight is a subsidiary fact.

[00:20:11] Speaker 00:
It's a question of fact that's part of the obviousness rubric.

[00:20:16] Speaker 00:
So when the board found that the objective evidence was quote unquote strong, that's the board's words, that's a factual finding reviewed for substantial evidence.

[00:20:24] Speaker 00:
What the board does with that conclusion can be looked at de novo on appeal for the final conclusion of obviousness, because what you do with that conclusion about the characterization of this objective evidence, what you do with it later is part of the legal question of the final determination of obviousness.

[00:20:46] Speaker 00:
I hope that helps.

[00:20:47] Speaker 00:
So very quickly, what we heard from Mr. Bell about time code,

[00:20:51] Speaker 00:
features, he contends that all those features were found in Strub by the board.

[00:20:58] Speaker 00:
We briefed this thoroughly.

[00:20:59] Speaker 00:
That's not actually an accurate characterization of what the board did.

[00:21:02] Speaker 00:
The board reported Mr. Bell's argument that these features were found in Strub, then proceeded not to make those findings, but instead went, and there's a particular footnote that shows this.

[00:21:16] Speaker 00:
They went expressly to Wu to look for that claim element.

[00:21:20] Speaker 00:
Because, in fact, that was really the thrust of their petition.

[00:21:25] Speaker 00:
And so the factual findings, which we are appealing as to the original claims, particular ones, the factual finding was the presence in woo of the master time code generator architecture.

[00:21:38] Speaker 00:
Because the board made no findings that Strub had anything remotely to deal with that claim limitation.

[00:21:44] Speaker 00:
Um, so finally, uh, and I just Toronto, I hope this is the final word to clarify the anticipation versus obviousness, uh, confusion.

[00:21:53] Speaker 04:
And this is, I believe I'm satisfied right now.

[00:21:56] Speaker 00:
So I need to clarify where I put a pin in it.

[00:22:00] Speaker 00:
I just went back to confirm the claim 12 in each of the appeals, uh, that we're appealing when you look for claim 12.

[00:22:08] Speaker 00:
All you have to know is we're not appealing anything about nexus or obviousness.

[00:22:14] Speaker 00:
Those claims were found anticipated in both appeals, 12 of 307 and 12 of 902.

[00:22:20] Speaker 01:
On the original claims?

[00:22:21] Speaker 00:
The original claims.

[00:22:22] Speaker 00:
So our appeal is solely on claim construction.

[00:22:25] Speaker 00:
And we essentially it's the same claim construction appeal in both cases for those respective claims.

[00:22:32] Speaker 00:
And so obvious this is not a question there.

[00:22:34] Speaker 00:
And thank you, your honors.

[00:22:35] Speaker 00:
I see him over my time.

[00:22:37] Speaker 00:
We respectfully ask for reversal.

[00:22:39] Speaker 01:
Thank you, Mr. Greenstone.

[00:22:41] Speaker 01:
Mr. Bell, you had a little time left on the cross appeal.

[00:22:45] Speaker 01:
Did I hear anything on the cross appeal that you need to respond to or entitled to?

[00:22:52] Speaker 03:
So, yes.

[00:22:53] Speaker 03:
So, the one thing on the cross of the field, Ms.

[00:22:56] Speaker 03:
Hilton stated that the, essentially, the arguments were that the same between the original claims and the amended claims on these two patents.

[00:23:05] Speaker 03:
I will note that in this case, original claim one of the 814 patent and original claim seven of the 902 patents, those did not include the combining or the replacing elements that are at issue in other places.

[00:23:20] Speaker 03:
The replacing element was added via the motion to amend.

[00:23:24] Speaker 03:
So there actually was no dispute about whether or not those disclose the dropout embodiment or the multi-track embodiment or any of that because those were not involved in the claim at all.

[00:23:35] Speaker 03:
And the other point I want to make is Mr. Greenspoon just talked about the board not making findings and he's mixing two things here.

[00:23:43] Speaker 03:
So there's two components of the claim.

[00:23:45] Speaker 03:
There's one thing that happens outside of the local audio device.

[00:23:48] Speaker 03:
That's the master time code generator.

[00:23:50] Speaker 03:
And the board did find that that was disclosed by Wu, not Strub.

[00:23:53] Speaker 03:
The other element, which is the element inside the local audio device, the thing that VACCOM says is praised, that's the local time code generator.

[00:24:00] Speaker 03:
And it is not disputed that that is disclosed by Strub.

[00:24:03] Speaker 03:
So all of the elements of the local audio device, the thing that VACCOM says was praised, were all within the primary reference, except for the audio input port, which they don't dispute without.

[00:24:16] Speaker 01:
Thank you, Mr. Bell.

[00:24:19] Speaker 01:
We appreciate the arguments in both cases, and they're both submitted.