[00:00:00] Speaker 03:
Next case for argument is 22-1664, Chamberlain versus IT case.

[00:00:09] Speaker 03:
Good morning.

[00:00:10] Speaker 03:
Please proceed.

[00:00:11] Speaker 05:
Good morning, Your Honors.

[00:00:11] Speaker 05:
May it please the court?

[00:00:13] Speaker 05:
Josh Rosencrans representing Chamberlain.

[00:00:17] Speaker 05:
Your Honors, I'd like to spend my time today on three issues going just a little bit out of order.

[00:00:22] Speaker 05:
I'd like to start with the wireless patents, patentability and infringement, and then turn to the 935 patent.

[00:00:30] Speaker 05:
The wireless patents are all about using generic RF transceivers to replace signals conventionally sent over hardwires with signals that are wireless, specifically using wireless signals to report the status of or to activate

[00:00:49] Speaker 03:
So since we've got so little time, let me just get to it.

[00:00:52] Speaker 03:
The other side will say, I think, that yeah, but this is different.

[00:00:56] Speaker 03:
And we've got the same claim appearing in different patents.

[00:00:59] Speaker 03:
But I'm looking at 718, claim 18.

[00:01:02] Speaker 03:
And they say that the be-all and end-all, and I think the ITC said this, is this last limitation dealing with power consumption.

[00:01:10] Speaker 03:
And that's what makes this different.

[00:01:12] Speaker 03:
And that's the focus.

[00:01:13] Speaker 03:
And this makes it an inventive concept, ordered combination, yada da.

[00:01:18] Speaker 03:
So why don't you tell me why this last limitation does not take this out of the simple Chamberlain 1 wire versus wireless?

[00:01:28] Speaker 05:
Well, so two reasons.

[00:01:29] Speaker 05:
First, Your Honor, as to step one, this claim is about wireless capability.

[00:01:37] Speaker 05:
It is the focus of the entire specification.

[00:01:40] Speaker 05:
It is the focus of just about every element.

[00:01:43] Speaker 02:
There's patent consumption, power consumption as well.

[00:01:48] Speaker 05:
I'm sorry, I didn't hear that.

[00:01:48] Speaker 02:
There's power consumption and power

[00:01:52] Speaker 05:
uh... saving as well so that yes your honor as to the obstruction detector in one sentence in the specification but there was nothing inventive at all about replacing the wire that goes to the obstruction detector and communicates about power consumption with a wireless communication well the question of his eligibility though is this part of the this does not this not take this out of the abstract idea it doesn't know i'm sorry

[00:02:22] Speaker 05:
It does not, Your Honor.

[00:02:24] Speaker 05:
The obstruction detectors that could power down were completely conventional in wired systems.

[00:02:34] Speaker 05:
And so all that happened here

[00:02:37] Speaker 05:
was to take the wire away from that functionality and make it wireless.

[00:02:43] Speaker 05:
And the key point here, Your Honor, is that the ITC had to make up testimony that didn't exist to make that something other than conventional.

[00:02:54] Speaker 05:
No one disputes the Rx for its testimony that low-powered modes were, quote, well-known

[00:03:02] Speaker 05:
in obstruction detectors.

[00:03:04] Speaker 00:
Are there any cases where we have in the past addressed kind of this power consumption mode with respect to 101?

[00:03:11] Speaker 05:
Yes, Your Honor.

[00:03:12] Speaker 05:
I think Uniloc is a great example.

[00:03:14] Speaker 05:
Now, Uniloc goes the other way.

[00:03:16] Speaker 05:
Why did Uniloc go the other way?

[00:03:18] Speaker 05:
Because there was something inventive that was done about the power consumption.

[00:03:24] Speaker 05:
They figured out a new way to implement power consumption

[00:03:29] Speaker 05:
from a computer to peripherals like a mouse so that it would act up more quickly.

[00:03:35] Speaker 05:
Nothing in this patent is a new way that is proposed for powering up and obstruction detectors.

[00:03:44] Speaker 05:
OHD's expert never said it was unconventional in a wired system.

[00:03:50] Speaker 05:
He said at page 59334 that it was unconventional in a wireless system.

[00:03:58] Speaker 00:
Do you agree that the ITC made a factual finding at Alice Step 2?

[00:04:03] Speaker 05:
Do I agree that?

[00:04:05] Speaker 00:
The ITC made a factual finding at Alice Step 2.

[00:04:08] Speaker 05:
The ITC purported to make a factual finding at Alice Step 2, but it was not supported by substantial evidence.

[00:04:15] Speaker 05:
Because it cited expert testimony that did not say what they say.

[00:04:20] Speaker 05:
It said, now what OHD and the ITC are trying to do

[00:04:24] Speaker 05:
is to say that this patent invented a new way to control power in an obstruction detector?

[00:04:32] Speaker 03:
Well, yeah.

[00:04:32] Speaker 03:
It says at 67, I think maybe this is what Judge Cunningham is referring to.

[00:04:36] Speaker 03:
At step two, it says, well, it talks about the FID saying that the specific combination of components are configured in an unconventional way to communicate barriers, status, and condition.

[00:04:52] Speaker 03:
I mean, the problem for you is,

[00:04:53] Speaker 03:
I'm quite sympathetic, frankly, and I understand and appreciate your arguments.

[00:04:57] Speaker 03:
But there's a deferential standard to be applied.

[00:05:01] Speaker 03:
And is the record here sufficient, with the burden being on you, to establish this was conventional routine, yada da?

[00:05:09] Speaker 05:
Agreed, Your Honor.

[00:05:10] Speaker 05:
So there was that finding.

[00:05:11] Speaker 05:
But neither the ITC nor, most importantly, OHD's expert can simply wave around the term, this was an unconventional combination

[00:05:23] Speaker 05:
without saying what it was that made it unconventional.

[00:05:27] Speaker 05:
And all that the ITC points to is non-existent testimony that it was.

[00:05:33] Speaker 03:
This is your testimony.

[00:05:35] Speaker 03:
I know there's a couple of references in the spec that you point out to this is conventional technology.

[00:05:42] Speaker 03:
But what else did you have through an expert or through your citation to the spec to establish that it was not conventional?

[00:05:49] Speaker 05:
So 59.3.

[00:05:50] Speaker 05:
59334, that's Williams, our expert.

[00:05:57] Speaker 05:
I'm sorry, Williams is OHG's expert where he makes the point about wireless.

[00:06:02] Speaker 05:
Our expert keyguard is at 65120.

[00:06:07] Speaker 03:
Is that volume three?

[00:06:09] Speaker 05:
It is volume three, yes, Your Honor.

[00:06:14] Speaker 02:
What was the first site, 59?

[00:06:15] Speaker 05:
59-334 is what Williams says, but it's about wireless.

[00:06:21] Speaker 05:
And our expert is at 58-289 and 65-120.

[00:06:27] Speaker 05:
I would also add sites that did not make it into the joint appendix, but HeGuard also are experts.

[00:06:36] Speaker 05:
which is Respondent's Exhibit 2C at pages 36.

[00:06:41] Speaker 03:
A lot of this is marked confidential.

[00:06:44] Speaker 05:
You can talk about it, Your Honor.

[00:06:45] Speaker 05:
It's all about prior art.

[00:06:47] Speaker 03:
OK.

[00:06:48] Speaker 03:
We'll check with the other side.

[00:06:49] Speaker 03:
OK.

[00:06:49] Speaker 05:
Fair enough.

[00:06:52] Speaker 05:
So if I may turn with limited time to the infringement point.

[00:07:01] Speaker 05:
Your Honor, this is one of the most topsy-turvy infringement cases I've ever encountered.

[00:07:06] Speaker 05:
OHD takes patents that are all about wireless communications, and in particular, wireless communication, they say it's so important to this obstruction detector, and it tries to apply it to obstruction detectors that communicate only by wire.

[00:07:23] Speaker 05:
Now to do that,

[00:07:25] Speaker 05:
They have to draw a grotesque gerrymander that associates the obstruction detector by the floor with a wireless transceiver on the ceiling, except that the supposed obstruction detection transceiver that they point to, and you can see this in the briefs of 46 and 47,

[00:07:44] Speaker 05:
It plays no role in detecting obstructions.

[00:07:48] Speaker 05:
It doesn't communicate with the obstruction detector, and it does not communicate about obstructions.

[00:07:56] Speaker 05:
Now, whether you treat this as a question of infringement and substantial evidence or claim construction, there is no dispute about a critical fact that decides this case.

[00:08:08] Speaker 05:
The transceiver that OHD describes as the obstruction detector transceiver

[00:08:14] Speaker 05:
never communicates with the obstruction detector.

[00:08:18] Speaker 05:
And it never communicates with any other component about obstructions.

[00:08:23] Speaker 05:
All it communicates about is opening and closing the door.

[00:08:28] Speaker 03:
And if you- Well, Mr. Roja, I understood this to be sort of a post-hoc claim construction debate over the use of the word directly versus indirectly.

[00:08:37] Speaker 03:
Am I misunderstanding that?

[00:08:39] Speaker 03:
I mean, you're saying

[00:08:41] Speaker 03:
You're trying to have this claim reconstrued to, I guess, what's your view?

[00:08:49] Speaker 03:
Yours is directly, or I don't know who's taking what.

[00:08:54] Speaker 05:
No, no.

[00:08:55] Speaker 05:
Your Honor, this is either a claim construction about the meaning of the term obstruction detector transceiver, and whether that term means that it's got to play some role in detecting obstructions.

[00:09:10] Speaker 05:
That's the claim construction point.

[00:09:12] Speaker 05:
Or it's a substantial evidence question about can this thing be an obstruction detection transceiver if it's not on the obstruction detector, doesn't communicate with the obstruction detector, and plays no role in signaling or detecting obstructions?

[00:09:27] Speaker 05:
Our answer to both, regardless of the way you pose the question, is that we can't possibly infringe.

[00:09:36] Speaker 05:
And so going to the

[00:09:38] Speaker 05:
exhibit that is the demonstrative on pages 46 and 47.

[00:09:45] Speaker 05:
You can see what this gerrymander does.

[00:09:49] Speaker 05:
The item that is the obstruction detection transceiver is at the upper left hand of the green box.

[00:10:00] Speaker 05:
That's what they're calling the obstruction detection transceiver, and that's up in the ceiling.

[00:10:05] Speaker 05:
It does only one thing.

[00:10:07] Speaker 05:
It receives a signal from what?

[00:10:10] Speaker 05:
From the clicker, which is not even on this diagram.

[00:10:13] Speaker 05:
You can draw in the diagram clicker-transceiver.

[00:10:18] Speaker 05:
That communication is open or close the garage door.

[00:10:24] Speaker 05:
That's all it does.

[00:10:26] Speaker 05:
And you can do this.

[00:10:27] Speaker 00:
We want to find that it's not problematic to point to the transceiver.

[00:10:31] Speaker 00:
Do you agree that you would lose on this argument?

[00:10:33] Speaker 00:
Or what's your position?

[00:10:35] Speaker 05:
Just to be clear, we are not saying that it's not OK to point to this transceiver.

[00:10:42] Speaker 05:
And this is not just an argument about geography.

[00:10:44] Speaker 05:
We're saying that this transceiver does not perform the function that an obstruction detector transceiver has to perform, because it has nothing to do with detecting or signaling obstructions.

[00:10:57] Speaker 05:
If we're wrong about that, no, Your Honor.

[00:10:59] Speaker 05:
We have no other argument other than the 101 argument.

[00:11:02] Speaker 05:
I see I've cut into my rebuttal time, but I did want to give the court a moment to ask questions.

[00:11:09] Speaker 05:
Thank you.

[00:11:10] Speaker 03:
Thank you, Your Honor.

[00:11:11] Speaker 03:
OK, we've got a cast of characters here.

[00:11:15] Speaker 03:
So Mr. Bell, under our order, you're up first.

[00:11:19] Speaker 03:
And then Mr. Rosen's slide will be after you.

[00:11:23] Speaker 01:
Good morning, Your Honor.

[00:11:23] Speaker 01:
May it please the court.

[00:11:25] Speaker 01:
I'll jump straight to the section 101 issue, as the court did.

[00:11:28] Speaker 01:
So there is overwhelming evidence here.

[00:11:30] Speaker 01:
We submit one-sided evidence of unconventionality.

[00:11:34] Speaker 01:
And as the court has noted, that is, and my friend has conceded, that's subject to substantial evidence review.

[00:11:41] Speaker 01:
When you look at what the sites they provided are... Well, can I start you with the claim language?

[00:11:45] Speaker 03:
Sure.

[00:11:46] Speaker 03:
I mean, so the real end-all, I think, is your position that it's this last limitation that saves the claims.

[00:11:52] Speaker 03:
And so you don't have to bother with Chamberman 1, et cetera, et cetera.

[00:11:56] Speaker 03:
What does this mean to you?

[00:11:59] Speaker 03:
I mean, I read it as changing the power state of the obstruction detector using wireless signals.

[00:12:10] Speaker 01:
That's what it says.

[00:12:10] Speaker 01:
That's what it says.

[00:12:11] Speaker 03:
Yes.

[00:12:12] Speaker 03:
And that's eligible because, I mean, the ITC's be all and end all, which is this combination of things which is, I know, taken from our case law, but I don't think very few have rested, very many cases have rested on this.

[00:12:26] Speaker 03:
Why?

[00:12:27] Speaker 03:
How does this take this out of the abstract idea in ChargePoint and in Chamberlain 1?

[00:12:34] Speaker 01:
Sure.

[00:12:35] Speaker 01:
So in Chamberlain 1, it was uncontested, I believe, that the only thing you were doing is swapping out wired and putting in wireless.

[00:12:43] Speaker 01:
And the court recognized that's an abstract idea.

[00:12:46] Speaker 01:
In contrast here, their abstract idea, and I understand why they tried to formulate this way to align it with that Chamberlain case, they said the abstract idea is, again, just wireless communication.

[00:12:55] Speaker 01:
But as the court has noted, you have that additional element that is not in any way accounted for in their proposed abstract idea.

[00:13:03] Speaker 01:
So it's eligible because it takes it.

[00:13:04] Speaker 03:
So we're changing the state of power.

[00:13:08] Speaker 01:
Correct.

[00:13:08] Speaker 01:
And that's inventive rule.

[00:13:11] Speaker 01:
In the same way that it was, Your Honor, in Unilog.

[00:13:14] Speaker 01:
There, they had a system and a wireless system that provided for waking up devices.

[00:13:20] Speaker 01:
It facilitated that waking up of a device that was in power save mode, as the court said, to conserve power.

[00:13:26] Speaker 01:
And what did it do?

[00:13:27] Speaker 01:
It added a single data field to the signal to wake it up, to make it more efficient.

[00:13:33] Speaker 01:
And in fact, in that claim, and it's at 957 F3rd 1305 to 06,

[00:13:39] Speaker 01:
The court will note that that claim is remarkably broad in comparison to some other ones, but it's far more specific here because there they did not even recite that it was for power consumption.

[00:13:51] Speaker 01:
The specification explained it.

[00:13:53] Speaker 01:
And the court accepted that and said adding this single data field to the communicated wireless signal was enough.

[00:13:59] Speaker 01:
Similarly here, adding a whole new wireless signal that controls the power consumption of this other device, peripheral device, is eligible in precisely the same way at step one.

[00:14:11] Speaker 00:
What evidence in the record best demonstrates that power consumption mode is inventive?

[00:14:15] Speaker 00:
Do you have something you could point us to?

[00:14:17] Speaker 01:
Oh, we have our expert testimony on section 101, so I'll start there.

[00:14:22] Speaker 01:
And that's at A, 59, 333 to 35, as my friend helpfully pointed out.

[00:14:29] Speaker 01:
And it goes through question after question.

[00:14:32] Speaker 03:
Is that in here?

[00:14:34] Speaker 03:
Yeah.

[00:14:35] Speaker 03:
And do you agree with your friend that all this confidentiality marking helped the door?

[00:14:41] Speaker 01:
I agree.

[00:14:41] Speaker 01:
And so our expert goes through, in great detail, question after question, explaining why, for example, their expert was wrong.

[00:14:49] Speaker 01:
This is at questions 179 and 180.

[00:14:53] Speaker 01:
Our expert says, as previously discussed, a posa would not have been motivated to combine the disparate components.

[00:14:59] Speaker 01:
And then he points to Dr. Heigert's testimony to the contrary.

[00:15:03] Speaker 01:
Question 180.

[00:15:04] Speaker 01:
points out that Dr. Hegar doesn't address all the elements or combination.

[00:15:08] Speaker 01:
And that again highlights the problem with their argument at both steps, is they don't fully grapple with the notion that this is about power control and improving a system that has an obstruction detection unit and controlling its power for safety reasons, for power consumption reasons.

[00:15:25] Speaker 03:
Is that novel?

[00:15:25] Speaker 03:
Do they do it in a novel way?

[00:15:28] Speaker 03:
controlling the power?

[00:15:29] Speaker 01:
Absolutely, Your Honor.

[00:15:30] Speaker 01:
There was no anticipation case here.

[00:15:33] Speaker 01:
And the non-obviousness case, we won.

[00:15:36] Speaker 01:
There's extensive findings on that at A 401 to 437.

[00:15:41] Speaker 01:
The ALJ credited our expert over the very expert testimony that they're citing now, which incidentally is from their 103 section, not their 101 section.

[00:15:51] Speaker 01:
And we won on that.

[00:15:52] Speaker 01:
The commission declined to review that, and they haven't appealed that.

[00:15:55] Speaker 01:
So we respectfully submit they're stuck with that.

[00:15:57] Speaker 01:
They can't now backfill and have a backdoor non-obviousness argument under the guise of Section 101.

[00:16:04] Speaker 01:
If you look at what they actually said on Section 101, they're expert.

[00:16:08] Speaker 01:
It is a single paragraph.

[00:16:10] Speaker 01:
And if I could point the court to A65, 175 to 76.

[00:16:14] Speaker 01:
This is question 189, and I'll pause for a moment.

[00:16:20] Speaker 01:
75, and then it carries over onto that next page, 76.

[00:16:27] Speaker 01:
And what you'll see is the sum and substance of his testimony is that he found these elements purportedly individually in the prior art.

[00:16:36] Speaker 01:
It doesn't explain how.

[00:16:37] Speaker 01:
And he says, completely conclusively with no purported explanation, that the combination is also unconventional.

[00:16:46] Speaker 01:
That we submit under any standard of review, let alone substantial evidence standard, can't stand up compared to the evidence.

[00:16:54] Speaker 03:
So let's leave the experts to the side for a moment, and let's talk about the specifications.

[00:17:00] Speaker 03:
Sure.

[00:17:00] Speaker 03:
So what's the language in the specification that you would tell us we should look to?

[00:17:05] Speaker 01:
So I would point the court to a couple of things.

[00:17:07] Speaker 03:
I'm looking at the 718, by the way.

[00:17:09] Speaker 03:
I hope you understand.

[00:17:10] Speaker 01:
I am as well.

[00:17:10] Speaker 01:
Thank you, Your Honor.

[00:17:12] Speaker 01:
So two points on that.

[00:17:13] Speaker 01:
First, a site that shows that this isn't about just subbing in wireless.

[00:17:18] Speaker 01:
And we know that because at column one, lines 25 to 27, and this is at A717, it talks about existing systems that had wireless communication.

[00:17:31] Speaker 01:
And to your honor's question, this is what takes it out of the Chamberlain world, the Chamberlain case, excuse me, that found those claims ineligible, because there they were just subbing in wireless.

[00:17:40] Speaker 01:
So this shows that that's not the case here.

[00:17:44] Speaker 01:
And then the second, to Judge Lin, I believe, pointed this out, there's a portion in column six, and referenced again in column seven, where it explains that one of the advances in this patent

[00:17:56] Speaker 01:
is this power control mode, this using signals to change and control the power of the obstruction detection unit.

[00:18:05] Speaker 01:
And so that's why we have a claim here.

[00:18:08] Speaker 01:
It's claims 18 and 24 in the 718 and claims 17 in the 895.

[00:18:14] Speaker 03:
But that seems to be just, I mean, if you're looking at six, it seems to be this is yet a consequence of moving from wired to wireless.

[00:18:22] Speaker 03:
They discuss it as

[00:18:24] Speaker 03:
I mean, what you're saying is right.

[00:18:25] Speaker 03:
It just says one advantage, but it talks about by way of radio frequency, wireless signals, hard wiring between the control and instruction is eliminated.

[00:18:34] Speaker 03:
So that seems to be the issue of wire versus wireless versus all of the eggs that are put in the basket by the ITC here for the very last limitation in this claim.

[00:18:45] Speaker 01:
Well, it certainly explains some of the consequences of it.

[00:18:47] Speaker 01:
And again, that shows it's in the context of a wireless system.

[00:18:50] Speaker 01:
We don't dispute that.

[00:18:52] Speaker 01:
And they make much of the fact that there was no dispute that certain transceivers, for example, to have those wireless communications are conventional.

[00:19:02] Speaker 01:
That's not the issue here.

[00:19:03] Speaker 01:
I know they focus on it in the yellow brief a little bit.

[00:19:05] Speaker 01:
And below, that was their main argument.

[00:19:08] Speaker 01:
The ITC even said, apart from saying those transceivers are conventional, you're not giving us anything else.

[00:19:14] Speaker 01:
So on this record, the ITC was certainly well justified when they found the other side's case completely deficient, both in the abstract idea formulation, which, again, they're stuck with.

[00:19:26] Speaker 01:
And at the step two analysis, they didn't provide any meaningful evidence at all.

[00:19:31] Speaker 03:
So can you tell me, the ITC in its step two analysis mentions a number of times the ordered combination.

[00:19:39] Speaker 03:
Can you explain to me what that means in this context?

[00:19:42] Speaker 01:
Sure.

[00:19:43] Speaker 01:
So it references the ordered combination, including at A69, I think, where it credits our expert, who is in turn discrediting their expert.

[00:19:53] Speaker 01:
There's a long quote in there saying, Dr. Hagaard doesn't take on the ordered combination.

[00:19:58] Speaker 01:
So I think part of what the ITC's point is, is they haven't met their burden.

[00:20:03] Speaker 01:
So it's their burden, clear and convincing.

[00:20:06] Speaker 01:
They can't come to the ITC.

[00:20:08] Speaker 03:
When they say at 60,

[00:20:10] Speaker 03:
that they don't address the claim in its entirety as an ordered combination.

[00:20:18] Speaker 03:
Give me an example of how they were supposed to address the claim in its entirety as an ordered combination.

[00:20:23] Speaker 01:
I think they needed to take on specifically, Your Honor, that additional element that we've been talking about, that using a control signal wirelessly received to then change the power consumption modes of that obstruction detector.

[00:20:37] Speaker 01:
They never take that on.

[00:20:40] Speaker 01:
They can't.

[00:20:41] Speaker 03:
Let me ask you, was that done, all of the hardware, everything here is really in the prior art, right?

[00:20:46] Speaker 03:
There's no new discovery of any, all of this, the transceivers, all of the stuff we're talking about here is in the art.

[00:20:52] Speaker 01:
If you cut each piece apart correct, you can find each of those pieces

[00:20:58] Speaker 01:
But as the court noted in Bascom, it's not just about whether the pieces are in the prior art, but whether the combination, that ordered combination.

[00:21:05] Speaker 03:
So there's no use of these two.

[00:21:07] Speaker 03:
Where's the claim language?

[00:21:09] Speaker 03:
So we're looking at the detector.

[00:21:11] Speaker 03:
We're looking at the detection unit.

[00:21:12] Speaker 03:
We're looking at the whatever pieces there are, the transceiver.

[00:21:17] Speaker 03:
They've never been used in combination prior art?

[00:21:20] Speaker 01:
Correct.

[00:21:21] Speaker 01:
Absolutely.

[00:21:22] Speaker 01:
That they've never used this whole combination.

[00:21:24] Speaker 01:
And the fact that their expert didn't take it on

[00:21:27] Speaker 01:
Our expert did take it on and said that, as a whole, these things, I think the quote here is, managing power consumption this way simply did not exist before the asserted claims.

[00:21:38] Speaker 01:
That's at question 179.

[00:21:40] Speaker 00:
And let alone all of our... Who agreed the claims need a wireless connection to make the power consumption relevant?

[00:21:46] Speaker 01:
I'm sorry, Your Honor.

[00:21:47] Speaker 00:
Do you agree the claims need a wireless connection to make the power consumption relevant?

[00:21:52] Speaker 01:
They receive the signal wirelessly.

[00:21:55] Speaker 01:
No question.

[00:21:56] Speaker 01:
That is part of all of the asserted claims.

[00:21:59] Speaker 01:
They receive... So the answer is yes.

[00:22:01] Speaker 01:
Yes.

[00:22:02] Speaker 01:
Yes.

[00:22:03] Speaker 01:
Absolutely, Your Honor.

[00:22:05] Speaker 01:
And so looking then to the evidence that our expert also put in on Section 103,

[00:22:11] Speaker 01:
which again at page 30 of their yellow brief, this is kind of their marquee quote.

[00:22:17] Speaker 01:
It's from their expert, but as to section 103.

[00:22:21] Speaker 01:
And then they go on to say, and this expert testimony was never refuted.

[00:22:24] Speaker 01:
Well, respectfully, I don't know how you can conclude that on this record.

[00:22:28] Speaker 01:
When we had copious evidence on section 103 that the ALJ credited, a 404 crediting question 34, a 405, 416, 415,

[00:22:39] Speaker 01:
all down the line, resolving this question against them.

[00:22:44] Speaker 01:
So in that statement, it's telling though, because they say, we proved, we proved such and such and such.

[00:22:50] Speaker 01:
They did no such thing.

[00:22:51] Speaker 01:
The ALJ found to the contrary and they haven't appealed any of that 103 decision.

[00:22:56] Speaker 01:
So with that backdrop, combined with the stark discrepancy in testimony that the ITC was presented with, single paragraph on one side on 101,

[00:23:07] Speaker 01:
paragraphs on the other side explaining why it was unconventional, in fact, certainly justified in finding the claims eligible under those circumstances.

[00:23:17] Speaker 01:
And I see I'm getting close on time.

[00:23:20] Speaker 01:
I did want to make sure to raise the cross-appeal issues so that it's fairly discussed later in rebuttal.

[00:23:26] Speaker 01:
And here, Your Honors, we just raised two discrete claim construction issues, one on the 260 patent and one on the 345 patent.

[00:23:35] Speaker 01:
We think in both of these, the ALJ got it exactly right, construed the claims correctly.

[00:23:40] Speaker 01:
And there's no dispute here before this Court that under that construction, there isn't infringement.

[00:23:46] Speaker 01:
They do infringe under that construction.

[00:23:47] Speaker 01:
Everybody agrees.

[00:23:48] Speaker 01:
The only question is whether the ITC incorrectly then narrowed the claim scope in a way that was not justified.

[00:23:55] Speaker 01:
And as to the 260 patent, for example, all the claim requires is user input to set force limits.

[00:24:03] Speaker 01:
User input of force limits.

[00:24:05] Speaker 01:
It can be done in any way, including with buttons.

[00:24:08] Speaker 01:
And that's shown most clearly at Figure 2.

[00:24:12] Speaker 01:
And that's at A704 of the appendix.

[00:24:15] Speaker 01:
Shows there a couple of buttons that you use to set the force limit.

[00:24:19] Speaker 01:
You can go up or you can go down.

[00:24:22] Speaker 01:
And tellingly,

[00:24:23] Speaker 01:
That's exactly functionally what Chamberlain's accused products do here.

[00:24:28] Speaker 01:
And I would point the court to a 51026 where there is an adjustment button that the user presses, and then there are up down buttons.

[00:24:38] Speaker 01:
Now it's to move the door as well, but specifically the instructions say you use those to set the force limit.

[00:24:46] Speaker 01:
And other documents are to the same effect.

[00:24:50] Speaker 01:
And their expert admitted, quote, if the user didn't push those buttons, then the force would not be set.

[00:24:56] Speaker 01:
That's at A58 to 67 to 68.

[00:25:00] Speaker 01:
So whatever the ITC meant in narrowing the claims, it's unclear whether they are requiring direct input, which they purported to reject, or whether they're requiring an actual numerical input, which they also purported to reject.

[00:25:13] Speaker 01:
At a minimum, it includes things like figure two, where the user is pressing a button, and somehow in the background, it ends up setting the force limit.

[00:25:20] Speaker 01:
That's exactly what we have here.

[00:25:22] Speaker 01:
And in the three, four, five, we think that the plain meaning of before just means earlier in time.

[00:25:29] Speaker 01:
Something happens before something else.

[00:25:30] Speaker 01:
Something else happens after something.

[00:25:32] Speaker 01:
You're not, as in a directive, saying you must do this before that.

[00:25:36] Speaker 01:
You're saying, did such and such in fact happen

[00:25:39] Speaker 01:
before the other thing, the ALJ recognize that under that construction there is infringement.

[00:25:44] Speaker 01:
Unless that court has no further questions.

[00:25:46] Speaker 01:
Thank you.

[00:25:48] Speaker 04:
May it please the court, Sidney Rosenstein for the commission.

[00:25:56] Speaker 04:
I think an overarching issue here for the issues in Chamberlain's argument today deals with really what they presented to the commission.

[00:26:05] Speaker 04:
The feature of a formal adjudication is that you have your hearing in front of what used to be called the hearing examiner, now an ALJ.

[00:26:14] Speaker 04:
But then under the APA and under Commission rules, you have to identify your errors to the Commission.

[00:26:23] Speaker 04:
And if we can, what I'd like to do is to just start off with the 101 arguments that were made by Chamberlain to the Commission, which appears at page A26479.

[00:26:33] Speaker 04:
I think it's in volume two of the appendix.

[00:26:37] Speaker 04:
So this is, as you turn to a 26479, this is their 100-page, 12-point petition for commission review.

[00:26:48] Speaker 04:
And you'll see that this 101 argument is issue number 14 that they present.

[00:26:55] Speaker 04:
But in... I'm not sure.

[00:26:58] Speaker 03:
Oh, OK.

[00:26:58] Speaker 03:
I got it.

[00:26:59] Speaker 03:
Okay.

[00:26:59] Speaker 03:
478.

[00:27:01] Speaker 04:
Yeah, so it starts at 478, but it's at the very bottom.

[00:27:03] Speaker 04:
So at 479 to 81 is everything that they had to say about step one.

[00:27:09] Speaker 04:
And then 81 to 82 is everything that they had to say about step two.

[00:27:14] Speaker 04:
You won't see Mr. Hagar's name here.

[00:27:17] Speaker 04:
You won't see any citation to his testimony.

[00:27:19] Speaker 04:
You won't see any paraphrasing to his testimony.

[00:27:23] Speaker 04:
In connection with step one,

[00:27:25] Speaker 04:
Chamberlain never presented below, including at the Commission, an argument that the power saving was abstract.

[00:27:32] Speaker 04:
And if I could understand where some of the court's questioning has been going, it's, well, maybe on a different record, maybe a party could say that, all right, well, there's a combination of abstract things going on here.

[00:27:43] Speaker 04:
There's abstraction as to wirelessness, and maybe there's some abstraction as to power savings.

[00:27:50] Speaker 04:
And we know that in ChargePoint that happened, that there were two different abstract ideas.

[00:27:54] Speaker 04:
There was an abstract idea of wirelessness, and then there was a demand response

[00:28:00] Speaker 04:
situation, which was also abstract.

[00:28:04] Speaker 04:
Chamberlain never raised that here.

[00:28:06] Speaker 04:
And so under step one, all that we're left with is this wirelessness.

[00:28:10] Speaker 04:
And Mr. Rosenkrantz quickly goes to his expert's testimony, which Mr. Bell correctly points out was in connection with obviousness.

[00:28:19] Speaker 04:
Well, there's no obviousness case on appeal.

[00:28:22] Speaker 04:
And there's no discussion of this testimony in the opportunity where Chamberlain had an opportunity to show the commission and tell the commission why they're correct.

[00:28:37] Speaker 04:
So I would just caution the court with Section 101 here to be mindful of what was presented to the commission and be cognizant of the fact that Mr. Rosencrantz is a skilled, famous appellate lawyer, but that some of his arguments don't really match up.

[00:28:51] Speaker 04:
with what was preserved at the Commission.

[00:28:55] Speaker 04:
Turning to, and I'll just say that's also for step two of ALICE, because if you look at pages 81 to 82 of this, 26841 to 82, they never talked about the censors.

[00:29:11] Speaker 04:
being conventional.

[00:29:13] Speaker 04:
And again, there's no discussion of Mr. Haggard's testimony.

[00:29:17] Speaker 04:
Instead, it was just discussing transceivers.

[00:29:20] Speaker 04:
So their theory of why this patent claim is invalid has shifted or morphed in a way that the Commission believes does not comport... I have to unstep to the Commission, as I mentioned to one of your friends, 68, 69,

[00:29:36] Speaker 03:
They talk about this ordered combination, but I guess I'm a little unclear on what the ordered combination is because I think the entire focus was on this final limitation.

[00:29:45] Speaker 03:
So are they talking about

[00:29:47] Speaker 03:
that in connection with the other limitations?

[00:29:49] Speaker 03:
Are they talking about just that last thing?

[00:29:51] Speaker 04:
It's not in connection with all the other limitations, that you have a specific arrangement of garage door elements.

[00:29:57] Speaker 04:
And it's that ordered combination that this patent claims.

[00:30:01] Speaker 04:
The appellants here have said, well, Uniloc is a good example.

[00:30:03] Speaker 04:
And I think that that's true because Uniloc acknowledged that or stated or held

[00:30:08] Speaker 04:
that the fact that an invention is compatible with conventional systems does not make it abstract.

[00:30:16] Speaker 04:
And I think that's ultimately fatal to their argument here under step two.

[00:30:20] Speaker 04:
If they're saying, look, this power savings is not inventive, of course, look at what they told the commission.

[00:30:27] Speaker 04:
They didn't really identify much there.

[00:30:29] Speaker 04:
And consequently, it shouldn't meet step two.

[00:30:34] Speaker 04:
I think understood most properly their argument is, well, we don't think that this was inventive.

[00:30:43] Speaker 04:
We think maybe the prior art might have done this.

[00:30:46] Speaker 04:
It wasn't proven below.

[00:30:47] Speaker 04:
It hasn't been proven on appeal.

[00:30:48] Speaker 04:
There's no 102 and 103.

[00:30:50] Speaker 04:
And UNILOC stands for contrary proposition for section 101.

[00:30:54] Speaker 00:
Do you contend that in light of the potential

[00:30:59] Speaker 00:
actual determination made at step two that we need to give any deference to that finding?

[00:31:05] Speaker 04:
Well, I think so.

[00:31:06] Speaker 04:
I mean, that's the entire point of deference.

[00:31:10] Speaker 04:
We had competing experts.

[00:31:12] Speaker 04:
We had Chamberlain filing a petition for review.

[00:31:15] Speaker 04:
Chamberlain chose not to rely on its expert testimony at any point in this range of their 100-page document on 101.

[00:31:22] Speaker 04:
And from the commission's perspective, at the commission stage, this was unrebutted.

[00:31:28] Speaker 04:
And even if you were to take into account everything that Mr. Rosencrantz has said, I would still agree with Mr. Bell as to the fact that if you're going to be opining as to conventionality or non-conventionality between two experts who are butting heads, the ALJ's decision that the overhead door expert was more credible than Chamberlain's.

[00:31:55] Speaker 00:
What if we disagree with the expert statements about what's claimed?

[00:31:59] Speaker 00:
Is there any other option for us in terms of a remedy, like will we remand for additional fact-finding, or what do you think would be the appropriate remedy in that circumstance?

[00:32:08] Speaker 04:
Well, I mean, the burden is ultimately on Chamberlain to show invalidity clearly and convincingly.

[00:32:13] Speaker 04:
So it either it did or it didn't.

[00:32:15] Speaker 04:
And I don't believe that on the record here, including what was preserved at the commission stage, there's any basis for remanding for further proceedings because there hasn't been a showing under step one or step two of clear and convincing evidence to support them.

[00:32:32] Speaker 04:
If I can turn to the infringement

[00:32:39] Speaker 04:
what was presented to the Commission.

[00:32:41] Speaker 04:
I mean, the Commission tries to do things in the way that the Court expects.

[00:32:47] Speaker 04:
We ask the parties for all their claim constructions.

[00:32:50] Speaker 04:
And Chamberlain sought claim constructions of a number of terms, including base controller,

[00:32:55] Speaker 04:
operatively connected to an obstruction detector, and all of these claim terms, which were resolved in the final ID at pages 323 to 332, I don't know if you need to turn to it, but your clerks have that now, all of these arguments dealt with the physical location and connectedness

[00:33:16] Speaker 04:
of different components in the system.

[00:33:18] Speaker 04:
So they knew how to make these arguments.

[00:33:21] Speaker 04:
And they didn't do it for the obstruction detector transceiver.

[00:33:23] Speaker 04:
They never sought a construction for that.

[00:33:26] Speaker 04:
They never argued that, and I should say that the theory of infringement was known all along,

[00:33:32] Speaker 04:
The claim constructions were resolved here in the final ID.

[00:33:35] Speaker 04:
So this isn't like an O2 micro situation where things are coming up late.

[00:33:40] Speaker 04:
There's no claim construction issue here because it's been forfeited.

[00:33:46] Speaker 04:
And there's no substantial evidence issue here because everyone agrees on how these accused products work.

[00:33:52] Speaker 04:
So I think the arguments that Mr. Rosencrantz has might make sense in another proceeding.

[00:33:57] Speaker 04:
And we know that the Commission's patent findings, whether it's under Section 101 or 102, are not preclusive in any way on any subsequent district court proceedings.

[00:34:05] Speaker 04:
So maybe he'll be involved in some trial team then.

[00:34:09] Speaker 04:
But it just simply doesn't match up with what was presented and preserved to the Commission.

[00:34:17] Speaker 04:
Unless the Court has any other questions on that, I'll just briefly turn to the cross appeal and say that the Commission really doesn't have much more than what's in our brief.

[00:34:29] Speaker 04:
It's the Commission's view that

[00:34:32] Speaker 04:
The arguments as to the 3-4-5 patent just don't even pass the smell test.

[00:34:38] Speaker 04:
If my wife tells me to take out the trash before I go to work, and I don't do it, I'm not going to tell her, well, before I went to work, I mean three weeks from next Wednesday.

[00:34:49] Speaker 04:
Before connotes a specific sequence in which things have to happen.

[00:34:53] Speaker 03:
And it's the commission's view that the sequence... It's almost as good as the cookie that didn't finish your dinner.

[00:34:59] Speaker 04:
Yes, our colleagues like Junior example, yeah.

[00:35:03] Speaker 04:
We all strive to have household examples of these things.

[00:35:07] Speaker 02:
What about the user setting limit?

[00:35:10] Speaker 04:
Well, the user isn't setting a limit.

[00:35:12] Speaker 04:
The user is just having the automatic system set a limit.

[00:35:15] Speaker 04:
And certainly substantial evidence supports the Commission's finding that pressing the button to have the system automatically set a limit is not tantamount to a user actually setting a limit, whether it's directly or by up and down arrow buttons.

[00:35:30] Speaker 04:
Functionally, the overhead doors theory just reads out the right half of figure three, appendix page 705 of the patent, that shows that what's contemplated is having separate choices for automatic and some user input and control, and that's just simply not present here.

[00:35:50] Speaker 04:
I will note that the appellants haven't gotten into the issue about the commission's modification here.

[00:35:58] Speaker 04:
I'm not going to open up that door with argument, unless the court takes me there.

[00:36:05] Speaker 04:
But I would just like to note that this particular joint appendix, things are pretty fragmented.

[00:36:10] Speaker 04:
Even the table of contents, for whatever reason, doesn't have dates.

[00:36:14] Speaker 04:
But if you were to work your way through Chamberlain's submissions in the commission stage methodically,

[00:36:20] Speaker 04:
and see what happened blow-by-blow at the Commission with respect to the modification and with respect to all of that.

[00:36:31] Speaker 04:
The Commission, I think, it helps explain what happened at the Commission and why the Commission did what it did, which was to clarify its decision at the earliest opportunity, and that comports with law.

[00:36:45] Speaker 04:
Any questions?

[00:36:50] Speaker 05:
Just a few points.

[00:36:51] Speaker 05:
First, on infringement, the ITC is making from this podium a new waiver argument on infringement that they never made before in this appeal.

[00:37:00] Speaker 05:
And the reason they never said it before was that we never focused just on the geography of that transceiver.

[00:37:09] Speaker 05:
You can see on page 26, 463 in our petition for review,

[00:37:15] Speaker 05:
The ITC and OHD repeatedly said that we were focusing only on geography.

[00:37:21] Speaker 05:
And we kept saying, no, that's not what our focus is.

[00:37:24] Speaker 03:
Can I take you back to the 101?

[00:37:28] Speaker 03:
Because I think the point was made that this might have been maybe a very different case.

[00:37:35] Speaker 03:
But just the absence of evidence here, either the expert or even attorney argument made below, this is made below, not to us, was just insufficient for your case.

[00:37:46] Speaker 03:
Do you have any quick response to that?

[00:37:49] Speaker 05:
I do, Your Honor.

[00:37:49] Speaker 05:
A couple of points about that.

[00:37:52] Speaker 05:
We had ample evidence, both from their expert and from our expert, about the conventionality of communications with obstruction detectors that lowered the power.

[00:38:09] Speaker 05:
And I'll give you a few examples which were discussed.

[00:38:13] Speaker 05:
There were one example in particular, which was discussed by both experts.

[00:38:17] Speaker 05:
It's the Fitzgibbon reference.

[00:38:19] Speaker 05:
That was a wired system that did exactly the same thing as this wireless system.

[00:38:26] Speaker 05:
It's on page 65144.

[00:38:29] Speaker 05:
It is HeGuard talking at 65144 about Fitzgibbon.

[00:38:37] Speaker 05:
And OHC's expert also engages about Fitzgibbon.

[00:38:42] Speaker 05:
And Fitzgibbon, again, was a wired system that powered up and powered down.

[00:38:50] Speaker 05:
And what the ITC points to for conventionality is Williams.

[00:38:57] Speaker 05:
And Williams, I'm going to quote to this court what Williams actually said at 59-334.

[00:39:03] Speaker 05:
He was not referring to wired communications that did all this.

[00:39:09] Speaker 05:
The first word is, quote,

[00:39:11] Speaker 05:
Wireless barrier operator systems that could communicate barrier status information while managing power consumption claimed by the asserted claims simply did not exist before the asserted claims.

[00:39:27] Speaker 02:
Was that testimony offered in support of an argument on 101 or 103?

[00:39:33] Speaker 05:
This is Williams on 101, I believe.

[00:39:39] Speaker 05:
But the commission is right.

[00:39:42] Speaker 05:
Our expert, the testimony that we are referring to, was obvious testimony.

[00:39:46] Speaker 05:
But there's no reason that you can't use it to do double duty.

[00:39:50] Speaker 05:
Yes, Judge Cunningham.

[00:39:52] Speaker 00:
What about your response to the commission on the fact that you probably appreciate the compliment on your arguing skills, but that you're pivoting your arguments here before this court versus what you presented to the commission?

[00:40:03] Speaker 00:
Can you respond to that?

[00:40:05] Speaker 05:
Yes, Your Honor, it was the same argument.

[00:40:07] Speaker 05:
I mean, our petition for review, I agree, is sparse.

[00:40:11] Speaker 05:
But our arguments before the commission are the same now as they were.

[00:40:16] Speaker 05:
And I would add that OHD and the commission are the ones who are pivoting.

[00:40:22] Speaker 05:
I mean, we did not

[00:40:24] Speaker 05:
OHD did not invent some new way to control power on the obstruction detector.

[00:40:31] Speaker 05:
What they're pointing to now was not what the commission pointed to, which is that there's some magic to doing this differently as in Uniloc, that they did power consumption differently.

[00:40:46] Speaker 05:
The claims talk about one thing with respect to the obstruction detector.

[00:40:51] Speaker 05:
It's send a signal.

[00:40:52] Speaker 05:
It wasn't even send a signal.

[00:40:54] Speaker 00:
That's one final question.

[00:40:55] Speaker 00:
Yes, of course, Your Honor.

[00:40:56] Speaker 00:
I don't want to run out the room.

[00:40:58] Speaker 00:
But do you agree that your expert's testimony was on obviousness and not 101?

[00:41:04] Speaker 00:
I think you said that.

[00:41:04] Speaker 00:
I just wanted to make sure I heard that correctly.

[00:41:07] Speaker 05:
The testimony that I was quoting to you earlier, citing to you, was about obviousness.

[00:41:12] Speaker 05:
But you can use obviousness.

[00:41:14] Speaker 05:
When he says that this was rampant in the art, or well-known in the art was the exact quote, that's transferable to 101.

[00:41:23] Speaker 05:
If I may just make two quick last points on 101.

[00:41:28] Speaker 05:
As Judge Prost points out, the specification says nothing that suggests

[00:41:35] Speaker 05:
that they created a new way to control power.

[00:41:40] Speaker 05:
Column 6, which everyone was looking at, says it again.

[00:41:43] Speaker 05:
It's that same sentence.

[00:41:44] Speaker 05:
It says, we send a signal.

[00:41:47] Speaker 05:
And at some point, the signal is sent and the obstruction detector powers down.

[00:41:53] Speaker 05:
And then the last thing was the evidence on conventionality, which I've already covered.

[00:41:59] Speaker 05:
It's that Williams did not say it was conventional in wired systems.

[00:42:05] Speaker 05:
So all you have is wrenching out the wire, putting in wireless, and the thing performs exactly the same, which is not enough to take it out of the abstractness of wired to wireless.

[00:42:18] Speaker 03:
Thank you.

[00:42:19] Speaker 05:
Thank you, Your Honors.

[00:42:20] Speaker 03:
Mr. Bell, I think we had a minute, but obviously the appellant did not respond, but lucky for you, the ITC did, so you can respond with your press.

[00:42:32] Speaker 01:
Thank you, Your Honor.

[00:42:33] Speaker 01:
I'll be very brief.

[00:42:35] Speaker 01:
The ITC, if I understood my friend correctly, said pressing a button doesn't count to set the force limits, but figure two of that very patent says otherwise, and CG's own documents

[00:42:46] Speaker 01:
expressly instruct the user to, quote, set the force.

[00:42:49] Speaker 01:
That's at A50184.

[00:42:52] Speaker 01:
And do it using a force adjustment mode.

[00:42:55] Speaker 01:
That's at that same page.

[00:42:56] Speaker 02:
What was that site?

[00:42:59] Speaker 01:
A50184.

[00:43:00] Speaker 01:
Also A51054.

[00:43:03] Speaker 01:
Also at

[00:43:04] Speaker 01:
A51026-28 where there it depicts buttons up and down that the user is to use precisely to set the force in addition to moving the door.

[00:43:15] Speaker 01:
These are the instructions that Chamberlain gives on how to set the force and involves pressing a button just like figure two.

[00:43:23] Speaker 01:
And finally, on the 345 patent, I understand the court's concern about before.

[00:43:28] Speaker 01:
If I phrase it another way and ask the question, did you clean the table after dinner?

[00:43:32] Speaker 01:
That doesn't preclude you from wiping down the table during dinner if you spill some milk or if during a nice restaurant comes around and cleans the table.

[00:43:40] Speaker 01:
The point there is you want to make sure that after you've done the complete dinner, you clean it so you can get on to the next one.

[00:43:47] Speaker 01:
Just like here, you want to make sure the full transmissions were done, whatever else happens, before you switch channels so you can do it again on another one.

[00:43:54] Speaker 01:
And with that, unless the court has questions.

[00:43:56] Speaker 01:
Thank you.

[00:43:57] Speaker 01:
Thank you very much.

[00:43:58] Speaker 03:
We thank all sides and the case is submitted.

[00:44:00] Speaker 03:
That concludes our proceeding for this morning.