[00:00:00] Speaker 02:
morning the first plus 22 1524 Engel Grange LLC versus Unified Patents Mr. Thomas.

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

[00:00:14] Speaker 01:
I am representing the patent owner of this matter Engel Grange.

[00:00:18] Speaker 01:
This appeal seeks reversal from the decision from the PTAB regarding a single claim in a patent

[00:00:28] Speaker 01:
that was instituted on four grounds, but the board only considered one ground in its decision.

[00:00:38] Speaker 01:
That was ground three that attacked the patent's claim under a combination of three references.

[00:00:46] Speaker 02:
So you didn't argue below with respect to the preamble that the combination of McCulloch and the general knowledge of someone skilled in the art didn't show limitation.

[00:00:58] Speaker 01:
We didn't argue as to whether the limitations in the preamble were taught by the references in particular.

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We had a different aspect of the challenge, which was that the third reference, Chung, was not

[00:01:26] Speaker 01:
explained in the petition to have been motivated for the combination with the other two references.

[00:01:37] Speaker 01:
So this shows up in that...

[00:01:44] Speaker 01:
The board did an end around that argument and said that the Chung was not needed because then the color reference as to the preamble limitations taught the entirety of the preamble.

[00:02:02] Speaker 02:
So why isn't that permissible under real-time data?

[00:02:07] Speaker 01:
I'm sorry, Your Honor.

[00:02:07] Speaker 02:
Why isn't that permissible under real-time data?

[00:02:16] Speaker 01:
Our opinion is that the three references as instituted are priorite references.

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And it looks to me, and it looks to me for 30 years, that that's a combination of three references, not a combination, two references.

[00:02:36] Speaker 03:
The basis of the- What's your argument here?

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Are you saying that you were somehow harmed by when the board did not

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review Chung as a prior reference?

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Chung, our position is that Chung is a required reference because the board's determination that McCullough, as presented in the petition, alleged the entirety of the preamble being disclosed is an error.

[00:03:10] Speaker 03:
If you looked at the petition... There's three prior references here.

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The board

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addressed to and said that the basic decision on those two.

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How were you harmed by Chung not being considered by the board?

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Are you saying that you didn't have opportunity to address it?

[00:03:31] Speaker 01:
Well, that's not what the petition presented.

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In IPR, I'm going based on what the petition is presenting to me.

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And that was a combination of three references.

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And that requires the third reference to have been shown combinable and motivated to do so with the other references.

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And the Chung reference is not an alternative reference.

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under real time or otherwise, because it was not clearly presented in the petition as being alternative.

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The word alternative is not used.

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There's other grounds in the same petition that describe Chung in the same way.

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And for example, in the fourth round, Chung is a primary reference.

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There's nothing in the document that explains, in the case of the third ground, we're not using Chung as a real reference.

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We're using it as something called general knowledge.

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If they wanted to use it for general knowledge, they should have been a lot clearer on that point.

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So our position is that Chung references

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as instituted a combination of three references.

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There's no explanation.

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I think that the board even concedes that Chung was not combined.

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There's no explanation for its combining with the other references.

[00:05:09] Speaker 02:
That may be, but the petition treated, for example, under the 1.1

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issue treated the combination of McCulloch and de Bono explicitly.

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So it wasn't as though you were deprived of knowledge that that was the combination they relied on without Chun.

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We're not disputing that McCulloch and de Bono weren't combined.

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We're disputing the third reference wasn't combined.

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Right.

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But you were on notice that that was one of the alternative arguments.

[00:05:48] Speaker 02:
It was just the combination of the moral and the bono.

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If Chung is not included, then the board's decision is still erroneous, because they relied on McCullough.

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And McCullough does not teach the entirety of the preamble.

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There may be a separate argument that

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that they can find the preamble limitations in the other art.

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But that's not what was alleged in the petition.

[00:06:21] Speaker 04:
What did they not consider in the preamble?

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True limitations.

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enabling an ignition switch to start the engine.

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They didn't comment on that with respect to McCullough.

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And also a lever lock that presents movement of the transmission lever to shift into gear until said brake pedal is pressed.

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That part was not considered.

[00:07:00] Speaker 02:
Yeah, but McCulloch discloses a limitation on engine start until you have the smart key, right?

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And all cars can't shift into gear unless you press the brake pedal, correct?

[00:07:20] Speaker 01:
Certainly today you have to press the brake pedal, sure.

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But the petition has to say that if they're going to rely on that single reference.

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They made allegations, for example, as to the brake press and the shifting with respect to Chung.

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So that's the point, is that the board should not have done any round of Chung, and they should have required Chung to be part of the challenge basis.

[00:08:01] Speaker 03:
So the board found that you waived that McCullough fails to teach the preamble.

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You didn't make an argument to that.

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So you can't make that argument here.

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And I think in response to Judge Dyke, you're making that argument.

[00:08:25] Speaker 01:
I'm not making that argument directly.

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I'm making the argument that Chum was a necessary reference.

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because the petition, in order to allege the entirety of the preamble, needed to use Chung's statement from the petition.

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So the board cannot say that it's an alternative reference.

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And therefore, Chung is included in the basis.

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And the defect then in the petition is that there is no explanation for a motivation to fight.

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Moving on to limitation one.

[00:09:10] Speaker 04:
The question I asked you before, aren't the things that were not covered by the board common knowledge and part of just the background, would they have had to address it specifically?

[00:09:28] Speaker 01:
We can see that if the three references as instituted were considered, combining them together, I think they could arrive at the preamble.

[00:09:44] Speaker 01:
Moving on to McCullough and with respect to limitation 1.1.

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The claim is a smart key system for an automobile.

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It recites a two-step key fob authentication.

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The first key fob authentication is to carry out starting of the engine.

[00:10:06] Speaker 01:
The second is carried out for shifting the gear when the brake pedal is pressed.

[00:10:13] Speaker 01:
The dispute here is over whether the second key fob authentication

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is thought of suggested by McCullough or McCullough with de Bono.

[00:10:28] Speaker 01:
The petition principally relies on the combination with de Bono and McCullough, but there is a single paragraph in there relying on McCullough alone.

[00:10:43] Speaker 04:
McCullough and the general knowledge of a skilled artisan.

[00:10:47] Speaker 01:
In our opinion, Your Honor, there's no distinction between the two.

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Any 103 rejection is in the eyes of one of Ernest Gilney Art.

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Additionally, I note that the general knowledge terminology is pretty vague in the petition and not consistently relied on or explained.

[00:11:18] Speaker 02:
discloses the smart key and the engine start.

[00:11:21] Speaker 01:
Yes.

[00:11:21] Speaker 02:
And Bono discloses the authentication required for shifting when the brake pedal is pressed.

[00:11:29] Speaker 02:
But you also have to have an authentication thing.

[00:11:32] Speaker 02:
Almost, Your Honor.

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And then the board found there was a motivation to combine.

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And that petitioner laid out a motivation

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in detail as to why that would be desirable.

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So what's the matter here?

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Why is this lacking in substantial evidence?

[00:11:52] Speaker 01:
Good question, Your Honor.

[00:11:55] Speaker 01:
It is a two-step.

[00:11:58] Speaker 01:
McCullough has one step, the first step.

[00:12:02] Speaker 01:
De Bono is a different reference.

[00:12:06] Speaker 01:
It's about shifting.

[00:12:08] Speaker 01:
It has one authentication.

[00:12:10] Speaker 01:
Our claim requires two

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So both references are using the one.

[00:12:17] Speaker 02:
Right, and the conditioner explained at some length why it would be desirable to have two.

[00:12:23] Speaker 02:
What the motivation was for combining the two.

[00:12:29] Speaker 01:
We're not challenging directly the motivation.

[00:12:32] Speaker 01:
We're challenging, basically we're saying it's a hindsight combination.

[00:12:37] Speaker 01:
What was extracted from Mr. Bono by the petitioner and the board was this vague notion of inauthentication check after engine start.

[00:12:55] Speaker 03:
Okay.

[00:12:57] Speaker 03:
Councilor, I share the same concern that Judge Mayer spoke to and that is that it was well known in the art that

[00:13:06] Speaker 03:
if you press the brake pedal at any time you tried to shift the car into gear that you had an authentication at that point and this is a person still in the art would have known that.

[00:13:22] Speaker 01:
I'm not sure what you're referring to your honor but in McCullough there's

[00:13:29] Speaker 01:
There's a statement in paragraph 35 about an alternative configuration that would utilize a brake press in conjunction with putting the shifter into the so-called O position or on position.

[00:13:46] Speaker 01:
Those two things could be used in combination to start the engine.

[00:13:49] Speaker 01:
But returning to my point, what was extracted from the bono is not a teaching from the bono.

[00:13:57] Speaker 01:
It's an abstracted concept.

[00:14:01] Speaker 01:
The only way they could have gotten to this concept was using hindsight.

[00:14:07] Speaker 01:
They extracted an authentication check after engine start.

[00:14:12] Speaker 01:
That is not an express teaching in reference.

[00:14:16] Speaker 01:
In the bono,

[00:14:21] Speaker 01:
the user puts his hand on the shifter, puts his thumb on some sensor, biometric sensor, and that causes an authentication.

[00:14:32] Speaker 01:
Then he can shift.

[00:14:36] Speaker 01:
So that's the teaching.

[00:14:39] Speaker 01:
That authentication is not from a brake press.

[00:14:43] Speaker 01:
It's only one authentication, and there's no

[00:14:51] Speaker 01:
The board basically says it's of no significant moment that De Bono teaches authenticating a key fob or whether De Bono teaches two authentications.

[00:15:06] Speaker 01:
So they don't care about that.

[00:15:09] Speaker 01:
Rather, as presented in the petition, the teaching from De Bono applied by the petitioner is simply an authentication check after engine start.

[00:15:18] Speaker 01:
Okay, so again, the board is doing an end run around the reference.

[00:15:24] Speaker 01:
This time, they're just ignoring all the distinguishing features.

[00:15:30] Speaker 01:
And just saying, hey, we don't care about that, because we're just picking and choosing this phrase, and then we'll take that and stick it in the first reference, and magically we arrive at the invention.

[00:15:42] Speaker 02:
Okay, I think we're about out of time here.

[00:15:45] Speaker 02:
We'll give you two minutes for a bottle.

[00:15:50] Speaker 02:
Mr. Seestrunk.

[00:15:54] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:15:59] Speaker 00:
My name is David Seestrunk, representing the Appellate Unified Patents in this appeal.

[00:16:04] Speaker 00:
Your Honors, I'd like to continue the discussion on the preamble, and I'd like to briefly address the issue of waiver, especially just to highlight what is different about the facts of our case.

[00:16:14] Speaker 00:
The first, as I think this Court has noted, these are not nuanced facts in the proceeding before the Board.

[00:16:20] Speaker 00:
They were aware of this argument from the petition in the institution decision.

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They had opportunities to respond in their Patent on a Response, in their Surreply, and at Orla argument.

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And they never raised any substantive argument against the prior arts disclosure of the preamble.

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The second difference here is that we have a finding from the board in the final written decision.

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that this argument was waived.

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And so we're not arguing waiver or forfeiture here for the first time on appeal.

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And even more notably, Inglegrange isn't even asking you to set aside the board's finding of waiver in the final written decision.

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And given the facts of the proceeding below, I'm not sure how they would do so.

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And certainly, they wouldn't be able to show that the board abused their discretion in making the finding that they did in the final written decision.

[00:17:11] Speaker 00:
Your Honours, I'd like to next address, so even if we don't consider waiver for the preamble, there is substantial evidence cited in the final written decision supporting a finding that McCullough alone discloses all of the limitations of the preamble.

[00:17:27] Speaker 00:
We heard that there are two allegedly missing limitations that are raised for the first time on appeal, which I will paraphrase as the ignition switch for starting the engine and the shifter lock that locks the shifter until a brake is pressed.

[00:17:42] Speaker 00:
Setting aside how commonly known these elements would have been in the relevant time frame at 2009, McCullough teaches them in evidence cited by the final written decision.

[00:17:52] Speaker 00:
At Appendix 35, the board cited several paragraphs and figures of McCullough that get to these two now disputed elements.

[00:18:01] Speaker 00:
For the ignition switch, McCullough explains in paragraphs 17 and 25 how its shifter can be used to start the vehicle or initiate an engine starting sequence, and this is evident cited by the board in their final written decision.

[00:18:15] Speaker 00:
For the locking shifter,

[00:18:17] Speaker 00:
the board cited two paragraphs 35 and 36 of McCullough, which explains that McCullough teaches an operation very similar to that of the patent.

[00:18:28] Speaker 00:
That is, you would press the brake, it would send an authentication signal, and then as a result of that authentication signal, the system will determine whether to lock or unlock the shift lever.

[00:18:38] Speaker 00:
And so again, this is evidence from McCullough itself cited in the board's final written decision that would be another alternative basis

[00:18:45] Speaker 00:
for affirming the board's final written decision.

[00:18:49] Speaker 00:
And as the court noted, and there were arguments presented towards the preamble related to Chung, but for the two reasons I just discussed, this court does not even need to reach any of those issues, because there are at least these two bases for affirming the board's final written decision.

[00:19:08] Speaker 00:
Your Honors, if there are no additional questions as to the preamble, I will turn to addressing limitation 1.1.

[00:19:16] Speaker 00:
Your Honor, so as the discussion is illuminated, we've provided and the board found two independent bases for finding limitation 1.1 disclosed.

[00:19:29] Speaker 00:
The first alternative presented by the board is McCullough in view of the general knowledge.

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And the second alternative is the combination of McCullough and De Bono.

[00:19:38] Speaker 00:
And I'd like to briefly address the combination first.

[00:19:41] Speaker 00:
The board provided over 15 pages of analysis in its final written decision

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with substantial evidence supporting our arguments that the combination of McCulloch and de Bono renders limitation 1.1 obvious.

[00:19:55] Speaker 00:
As we just heard counsel say, they're not even disputing that there was a motivation to combine in McCulloch and de Bono.

[00:20:04] Speaker 00:
And much of the evidence surrounding motivation to combine and the evidence cited by our expert in the proceeding before the board is uncontested.

[00:20:13] Speaker 00:
I would like to briefly address the arguments that Council has made, that it's now making an appeal against the combination, and one of those is that neither reference in the combination discloses two authentication checks.

[00:20:27] Speaker 00:
As Your Honors have noted, this argument is irrelevant, and the Board found in the proceedings before it that this argument misses the mark because this is not the combination that we proposed, and it's not the combination

[00:20:39] Speaker 00:
that was adopted by the board.

[00:20:42] Speaker 00:
Again, there's no dispute that McCullough teaches the first authentication that occurs at or during the engine start process, and that DiBono teaches a second authentication check that would occur after the engine has started.

[00:20:54] Speaker 00:
I heard counsel say that there is no, or that we are attempting to fabricate a teaching in DiBono, but that is, that is wrong.

[00:21:02] Speaker 04:
But DiBono is a lot different, though.

[00:21:04] Speaker 04:
I mean, it does authenticate, but it's a biometric authentication.

[00:21:10] Speaker 04:
Fingerprints, isn't that how it works?

[00:21:13] Speaker 00:
That's right.

[00:21:14] Speaker 04:
Because they're so different.

[00:21:18] Speaker 04:
It shows a second authentication, but not in a similar way.

[00:21:23] Speaker 00:
That's right, which will briefly address that point.

[00:21:26] Speaker 00:
That is, I guess, gets to their argument that we are allegedly extracting teachings from Devono or failing to read it as a whole.

[00:21:33] Speaker 00:
However, before the board, we never hid that Devono operated this way.

[00:21:38] Speaker 00:
And in our combination and in our motivations, we explained why it would have been known to a person of skill in the art to that

[00:21:48] Speaker 00:
for example, biometric authentication, was a similar technique and was known to have exceeded to be interchangeable with a key fob authentication like in McCullough's system.

[00:21:57] Speaker 00:
So we provided evidence of record that has never been contested and is corroborated or includes corroborated expert testimony that it would have been known to a person of skill in the art that

[00:22:08] Speaker 00:
biometric systems, biometric authentications were interchangeable with key fob authentications.

[00:22:15] Speaker 00:
And this is true because both types of authentication are really getting to the same point.

[00:22:21] Speaker 00:
That being, they're trying to authenticate and determine

[00:22:24] Speaker 00:
whether the driver of the vehicle is the correct person that should be driving the vehicle.

[00:22:29] Speaker 00:
And so, again, this is evidence we provided through our expert with additional corroborating references.

[00:22:37] Speaker 00:
This is specifically at appendix 136, 137, and so for that reason, this is how we explain that McCullis, or De Bono's teaching would be applicable to McCullis' keep-off system.

[00:22:51] Speaker 04:
If somebody had, if someone stole a car that had, uh, uh, I-O-M-E-T-R, they wouldn't be able to shift the gear.

[00:23:02] Speaker 04:
Whereas if they stole a car where the mob was still there, they would.

[00:23:09] Speaker 00:
That, that is a situa- Yes, Your Honor.

[00:23:11] Speaker 00:
That is a situation that I believe could occur.

[00:23:14] Speaker 04:
However, that doesn't discount from- Well, around here, it could occur a lot.

[00:23:19] Speaker 00:
Well, Your Honor, I think it doesn't discount from the combination that we made.

[00:23:25] Speaker 00:
Even if, for example, the biometric shifter could be seen as even more robust than a key fob authentication system, that doesn't necessarily lead to a conclusion that de Bono's teaching still would not be applicable or useful to include as an improvement to McCullough's system.

[00:23:43] Speaker 00:
And so that's really what we're saying here.

[00:23:46] Speaker 03:
Does de Bono require everybody who uses the car

[00:23:50] Speaker 03:
I guess upload the fingerprint or the eye, whatever's being read.

[00:23:57] Speaker 00:
I believe it does use a fingerprint scanner.

[00:24:01] Speaker 03:
I'm not sure if it... Wouldn't a person skilled in the art be taught away from that technology?

[00:24:08] Speaker 03:
Because that seems difficult with respect to a car.

[00:24:15] Speaker 00:
Your Honor, I don't think it teaches away in the way that we presented our combination here.

[00:24:21] Speaker 00:
For the reasons that I was just discussing, those are the reasons we set forth that are not contested by the patent owner as to why.

[00:24:27] Speaker 03:
So when you drive your car to a valet parking lot, do you have to upload the valet's fingerprints?

[00:24:37] Speaker 03:
your honor in the bonus system that may be the case but I don't want to proceed to turn away from that and say okay I can see how you can authenticate by using biometrics but it doesn't make sense to to do that with respect to a vehicle well your honor I I

[00:24:56] Speaker 00:
I do agree with your point, however, that is not the combination that we have presented here, and in fact, that could even be a reason why a FACETA would have taken De Bono's teaching, which is the teaching of authenticating after an engine is started, because that would provide additional anti-deaf benefits to the system, and that would have been even more reason to use McCullough as a base system to include that teaching and provide a more robust system that uses a key fob.

[00:25:25] Speaker 00:
And I would like to quickly address one of counsel's statements that there is no, or that we're attempting to fabricate a teaching in de Bono of the authentication occurring after the engine is started.

[00:25:36] Speaker 00:
I would direct the court to appendix 893 of de Bono.

[00:25:42] Speaker 00:
Column 6, lines 15 through 36.

[00:25:45] Speaker 00:
And this is where de Bono makes clear that in its in operation, it allows you to start the vehicle and then will perform an authentication check after the engine is started.

[00:25:55] Speaker 00:
So this is not something that, and this is evidence that is of course cited by the board in our petition.

[00:26:00] Speaker 00:
And so we're not attempting to fabricate anything at de Bono.

[00:26:04] Speaker 00:
It's explicit.

[00:26:08] Speaker 00:
Your honors, unless there are any further questions about the combination, I would like to briefly address another alternative basis that the board found for affirming limitation 1.1, and that is McCullough in view of the general knowledge.

[00:26:20] Speaker 00:
Your honor, for this limitation, the board also found a mover on this issue at appendix 44, note 24.

[00:26:31] Speaker 00:
This is slightly different than the preamble, but nonetheless, the court could affirm on this basis for the same reasons.

[00:26:37] Speaker 00:
They had noticed that we were making the argument of McCullough in view of general knowledge.

[00:26:41] Speaker 00:
That finding is not challenged.

[00:26:42] Speaker 00:
Your page was that?

[00:26:43] Speaker 00:
Your honor, it's the board's footnote, footnote 24 on appendix 44.

[00:26:52] Speaker 00:
This is where the board found waiver of limitation 1.1.

[00:26:56] Speaker 00:
And again, to be clear here, this is where the board found that Inglegrange failed to address the precise argument, which is McCullough in view of general knowledge, and instead

[00:27:09] Speaker 00:
in the proceeding before the PTAB and now on appeal, they really are only arguing against McCullough's express disclosures.

[00:27:16] Speaker 00:
And so this, again, would be another alternative basis for affirming the board's final written decision.

[00:27:21] Speaker 00:
But even if the court elects not to find waiver here or agree with the board's finding,

[00:27:29] Speaker 00:
McCullough, in view of general knowledge itself, would be yet another alternative basis for affirming limitation 1.1.

[00:27:36] Speaker 00:
Again, there's no dispute between the parties that McCullough teaches the first authentication check.

[00:27:40] Speaker 00:
And as the board noted in their final written decision, this does not end in inquiry because we also offered general knowledge.

[00:27:47] Speaker 00:
The board identified our uncontroverted evidence and argument because it was not a contested issue before the board supporting what was in a facetious general knowledge, which are the concepts of pressing the brake to unlock a shifter and to perform an authentication check.

[00:28:03] Speaker 00:
The board agreed with us that it would have been obvious to perform McCullough's authentication check whenever the break was pressed, meaning also after engine start.

[00:28:12] Speaker 00:
So even here on appeal, they're not really contesting the facts supporting the board's conclusions.

[00:28:17] Speaker 00:
And to the extent they even address general knowledge now on appeal, they only do so in the context of saying that there was improper hindsight or an improper obviousness analysis.

[00:28:29] Speaker 00:
So Your Honors, unless there are any further questions,

[00:28:33] Speaker 00:
We think affirming the board's final written decision here is straightforward, and there are multiple alternatives to do so for both the preamble and limitation 1.1.

[00:28:40] Speaker 00:
And so we'd ask that you affirm the court's, this court affirm the board's final written decision.

[00:28:46] Speaker 02:
Thank you.

[00:28:48] Speaker 02:
Mr. Thomas, you have two minutes.

[00:28:59] Speaker 01:
The petition itself concedes that McCullough operates without any need or desire for a second authentication.

[00:29:09] Speaker 01:
The petition even states that after authentication of a key fob for starting the engine, the gear shifter is free to move until the engine is shut off.

[00:29:23] Speaker 01:
That's an Appendix 136 part of the petition.

[00:29:28] Speaker 01:
The petition expert made the same statement.

[00:29:33] Speaker 01:
So that suggests that there's not a second authentication or shifting.

[00:29:42] Speaker 01:
Yes, I'm dealing with McCullough by itself at the moment.

[00:29:53] Speaker 01:
There were no findings made by the board that McCullough or this mythical general knowledge taught a second authentication.

[00:30:03] Speaker 01:
Instead, there was only unsupported assertions of obviousness in a single paragraph with conclusory statements that normally I would think would not be specific enough to warrant consideration.

[00:30:23] Speaker 01:
There are contrary statements in the petition and from the petitioner's expert and the owner's expert that undercut this basic premise of they could do a second authentication

[00:30:42] Speaker 01:
McCullough itself says that it can shift freely once first authentication is done.

[00:30:52] Speaker 01:
Petitioners expert stated McCullough does not disclose authentication when a brake pedal is pressed after engine is started.

[00:31:03] Speaker 01:
That's the reference we're relying on, and the expert says it doesn't do it anymore other than once.