[00:00:08] Speaker 05: Yes Good morning, and may it please the court I'm Jack Pate representing Philippine Adams. [00:00:16] Speaker 05: Who's the inventor named in patent application? [00:00:19] Speaker 05: Serum 15 for one two six nine six. [00:00:22] Speaker 05: I'm not here to regurgitate the entire briefing thousands of pages of record, but to can I ask you to speak a little loud well by all means [00:00:36] Speaker 05: We'd like to just point to a few errors that we believe are actually dispositive of the case, and if properly decided, we'll dispense with any analysis of the remaining issues. [00:00:54] Speaker 05: And some of those are the definition of the independent data streams, the idea of data integrity, [00:01:03] Speaker 05: or the definition of it. [00:01:05] Speaker 05: Also the intrinsic record and how it should control the case. [00:01:12] Speaker 05: So now I will also mention we have no beef with the [00:01:19] Speaker 05: standard of review that's stated by the opposing side, but it does leave a gap. [00:01:24] Speaker 05: They talk about the specification. [00:01:26] Speaker 05: They talk about the case they cite says the substantial evidence standard is for extrinsic evidence of facts that the court has ruled on. [00:01:40] Speaker 05: There's no extrinsic evidence in this case. [00:01:42] Speaker 05: In fact, that's a point of contention. [00:01:45] Speaker 05: But so as far as understanding the case today, there are a number of legal errors in the process by the examiner and by the board in terms of interpreting the claims properly. [00:02:07] Speaker 05: One of the principal points that is made repeatedly [00:02:12] Speaker 05: from the beginning, from the examiner during the prosecution all the way to the court. [00:02:18] Speaker 04: In the red brief, your opposing counsel says that you've raised new arguments about the recited claim terms, maintain integrity, and identifying binary segments common to the first and second process samples. [00:02:40] Speaker 04: and says that those are forfeited as are the new arguments attacking the examiner's rationale behind the motivation to combine the reference. [00:02:52] Speaker 04: So my question is, where in the record below did you raise the arguments related to the recited claim terms, maintain integrity, and identifying binary segments [00:03:04] Speaker 04: common to the first and second process samples. [00:03:08] Speaker 05: OK. [00:03:09] Speaker 05: We argued those to the examiner from the beginning. [00:03:13] Speaker 05: And if you look back at the examiner's answer and our reply, we have the right to reply to the examiner. [00:03:21] Speaker 05: The NPEB site we provided you, we have the right to reply to the examiner. [00:03:26] Speaker 05: He raised a rash of issues. [00:03:28] Speaker 05: in his answer, and we replied to those. [00:03:31] Speaker 05: And so in our, you'll find that in our reply brief, in this case, before this tribunal, we identified all the places. [00:03:40] Speaker 05: I mean, we had 11 different citations we made to the examiner's answer. [00:03:46] Speaker 05: showing that we were responding to his issue. [00:03:49] Speaker 03: Right. [00:03:50] Speaker 03: But I guess when it comes to identifying all the possible defects in an examiner's final rejection, it's incumbent upon you in your appeal brief to the board to not only identify those possible defects, but then to explain why those defects are, in fact, errors by the examiner. [00:04:12] Speaker 03: And the PTO's regulations are pretty clear. [00:04:16] Speaker 03: You know, the board cited one of them, 41.37C14 and 41.41, 41.52 that are pretty clear that you're not allowed to raise a new issue, a new possible error by the examiner's rejection. [00:04:33] Speaker 03: in your reply group. [00:04:34] Speaker 03: You are correct. [00:04:35] Speaker 03: You are allowed to reply to arguments and statements made in the examiner's answer. [00:04:41] Speaker 03: But you're not allowed to raise brand new arguments attacking the rejection in your reply group. [00:04:50] Speaker 05: OK. [00:04:50] Speaker 05: I guess I don't. [00:04:52] Speaker 05: As I reviewed that record, I did not see where we were raising a new issue really in doing that. [00:04:58] Speaker 05: We're simply pointing out. [00:04:59] Speaker 03: Well, what about the data integrity argument and then the binary segment arguments? [00:05:05] Speaker 03: As I understand, your appeal brief to the board [00:05:08] Speaker 03: Those particular arguments about alleged defects and examiners' final rejection are not contained in your appeal brief. [00:05:16] Speaker 03: Is that right? [00:05:17] Speaker 03: They were perhaps raised in your reply brief, but not in your initial. [00:05:22] Speaker 03: I'm sorry. [00:05:23] Speaker 03: Go ahead. [00:05:24] Speaker 03: Your appeal brief to the board, your board opening brief. [00:05:29] Speaker 03: Did it raise these two arguments about data integrity and binary segments? [00:05:34] Speaker 05: My memory of them is absolutely they were at issue in the beginning. [00:05:38] Speaker 05: because that's the whole problem with the claim interpretation is that we went into the claim itself and we repeatedly said you're not reading the claim right. [00:05:51] Speaker 05: What you're doing is you're ignoring the definitions of those terms, those exact terms, and those are all raised. [00:05:58] Speaker 05: You're ignoring those definitions that are found in not only, well, [00:06:03] Speaker 05: They're explained in the context of the spec, but there's also the intrinsic record, which is supposed to be considered along with the specifications binding on the inventor. [00:06:12] Speaker 05: And so they talk about the declaration of the inventor. [00:06:15] Speaker 05: Yeah, there are 24 paragraphs laying out his qualifications to say what he's saying, which is largely a tutorial of facts to the examiner who is ignoring [00:06:26] Speaker 05: all the terms of art in the art. [00:06:29] Speaker 05: So what happened was the examiner kept misinterpreting them improperly, and dramatically those will not stand. [00:06:39] Speaker 05: And so we've argued from the beginning that the prior art doesn't have a, quote, data stream the way that is intended to be met here. [00:06:50] Speaker 05: The data stream has to be [00:06:52] Speaker 05: have no knowledge of formats and all that. [00:06:54] Speaker 05: In other words, it's a low layer, ones and zeros. [00:06:58] Speaker 05: No matter what the data represents, our system just treats it as ones and zeros. [00:07:04] Speaker 05: No format, no administrative, no instructional, no headers. [00:07:12] Speaker 05: None of that can be recognized. [00:07:14] Speaker 05: And so they don't even have a data stream. [00:07:16] Speaker 05: But the main problem they run into, and we argued there, was [00:07:21] Speaker 05: If you look at the claim itself, claim 20, which is found, I guess, in every brief right at the beginning. [00:07:30] Speaker 05: The claim, okay, talks about a system of at least one processor. [00:07:34] Speaker 05: The PTO keeps ignoring the continuing limitations and they just each thing to almost one word. [00:07:45] Speaker 05: For example, [00:07:47] Speaker 05: The claim in the third paragraph of the claim, a second data stream processor programmed to receive the data of a second data stream, comma, independent from the first data stream, comma. [00:08:03] Speaker 05: The opposing side has argued ever since the original prosecution and all the way through the briefing that the independence is [00:08:16] Speaker 05: independent receipt over independent buses. [00:08:21] Speaker 05: No, there's a place in the claim where we talk about receiving information over two buses, but this, independent from the first data stream, independent is an adjective. [00:08:33] Speaker 05: It's in an adjective clause or in a positive adjective clause following the term data stream, and it's set off by commas. [00:08:42] Speaker 05: If it were instead describing or further defining the receipt or the receive, then it would have to be an adverb modifying receiving. [00:08:53] Speaker 05: And so then it would have to be receiving independently. [00:08:59] Speaker 03: I suppose you could amend these claims if you wanted to, right? [00:09:02] Speaker 03: You could file a continuation. [00:09:04] Speaker 05: Well, we have. [00:09:06] Speaker 05: We actually filed a divisional off of this. [00:09:08] Speaker 03: oh so you have a pending division we have a pending division could you do the amendment that makes it extra clear that the two data streams have to come from two separate sources well that's a different limitation we said independent sources and the reason we use the word independent I understand why you use the term independent and what your interpretation of the word independent is obviously the board had a different interpretation of that what I'm asking you is [00:09:34] Speaker 03: Did you, in your divisional, amend your claims in such a way that not only do we have to rely on an interpretation of the word independent, but you actually express these right into the claim. [00:09:47] Speaker 03: What is going on here is comparing one data stream from one source and to a second data stream from a completely different second source. [00:09:56] Speaker 03: Is that written in your pending claims in your division? [00:09:58] Speaker 03: I do not recall whether we made that change. [00:10:00] Speaker 05: We did make some amendments. [00:10:03] Speaker 05: We didn't make some amendments in view of this case. [00:10:06] Speaker 05: But there's no need for us to do that, because proper claim interpretation in this context has to consider the entire intrinsic evidence. [00:10:16] Speaker 05: Oh, what's the case? [00:10:20] Speaker 05: The Iredeto case, which cites back to Markman, Petronich, Phillips, those kinds of cases. [00:10:28] Speaker 05: the improper claim interpretation arises out of the fact that they basically, and this shows throughout the record, shows in the statement of substance of interview, shows in the argument where he not only does not give [00:10:41] Speaker 05: the Adams Declaration in a substantial way. [00:10:45] Speaker 05: He gives it no weight. [00:10:45] Speaker 05: He says so. [00:10:46] Speaker 05: He says so to my face. [00:10:47] Speaker 05: It's documented in here. [00:10:48] Speaker 05: He said it in his briefing. [00:10:50] Speaker 05: It's documented in here. [00:10:51] Speaker 05: And so that's the improper, and that's the problem here, is that they did not give any weight [00:10:58] Speaker 05: to that declaration. [00:11:00] Speaker 05: And that declaration is merely a set of explanations. [00:11:05] Speaker 05: And it's binding on the examiner. [00:11:06] Speaker 05: And the file history must be used to interpret the claim. [00:11:09] Speaker 05: So that's legal error. [00:11:11] Speaker 05: And we want that reversed. [00:11:13] Speaker 02: OK. [00:11:13] Speaker 02: We're into your rebuttal time. [00:11:15] Speaker 02: Pardon? [00:11:15] Speaker 02: You're into your rebuttal time. [00:11:18] Speaker 02: Oh, I'm sorry. [00:11:19] Speaker 02: I didn't realize. [00:11:19] Speaker 01: That's quite all right. [00:11:21] Speaker 01: Oh, my goodness. [00:11:23] Speaker 00: Good morning, Your Honor. [00:11:24] Speaker 00: May I please court? [00:11:26] Speaker 00: The only issue that appellant preserve for this court on appeal is the independent issue. [00:11:35] Speaker 00: Every other issue is either a part of that main issue or it has been forfeited, as you discussed with the appellant. [00:11:41] Speaker 04: I'm going to ask you to speak a little more loudly, too. [00:11:44] Speaker 04: I will try. [00:11:44] Speaker 04: And I've got my hearing aid. [00:11:47] Speaker 00: Do you want me to repeat that? [00:11:48] Speaker 04: No, I heard you. [00:11:50] Speaker 00: At every step since the opening brief at the board, appellant has either added or shifted arguments. [00:11:59] Speaker 00: It added arguments in the reply brief and the request for a hearing so that the examiner didn't have a chance to [00:12:06] Speaker 00: respond and it added arguments at the blue brief stage which the board didn't have a chance to respond to and it added more arguments in the gray brief that the director didn't have a chance to respond to. [00:12:20] Speaker 00: Moving on to the claim term independent. [00:12:26] Speaker 00: The board's interpretation of the claim term independent is fully supported by the record including the claim language itself which does not recite any data sources whatsoever. [00:12:37] Speaker 00: Appellant's citation to the places in the specification that talks about one or more sources includes one source as well as more than one source. [00:12:49] Speaker 00: And the Named Inventors Declaration doesn't even go so far as to say that the claim requires streams originating at different sources. [00:13:04] Speaker 00: What Dr. Adams' testimony said was that [00:13:07] Speaker 00: independence between two data streams should be given its common and ordinary meaning, and that it means that no relationship is known between the two data streams. [00:13:20] Speaker 00: That does not support an interpretation of the claims that require two data streams from two different originating sources. [00:13:30] Speaker 04: Let me ask you three questions, but they're all the same, more or less. [00:13:37] Speaker 04: Is a declaration made by an inventor during patent prosecution intrinsic or extrinsic? [00:13:44] Speaker 04: And does the record indicate whether the board treated the Adams Declaration as intrinsic or extrinsic? [00:13:54] Speaker 04: And three, does it make a difference whether it's one or the other? [00:13:58] Speaker 00: Well, if I may answer the third question first, no. [00:14:02] Speaker 00: I don't think it matters because the board and the examiner said in the record that they considered the declaration. [00:14:12] Speaker 00: Yes, they did. [00:14:16] Speaker 00: I don't think they said one way or the other whether it's intrinsic or not. [00:14:23] Speaker 00: I guess it could be considered intrinsics because it's in the file, but it is the inventor's declaration. [00:14:28] Speaker 00: So maybe it should not be given as much weight as, say, the claims and the specification. [00:14:36] Speaker 00: Does that answer your question? [00:14:38] Speaker 04: Might as well mean. [00:14:41] Speaker 00: Does the court have any further questions? [00:14:43] Speaker 03: What would you itemize as the actual arguments that were preserved in the appeal brief to the board? [00:14:52] Speaker 03: One is the argument about what is independent mean. [00:14:56] Speaker 03: What else was in the appeal brief? [00:14:58] Speaker 00: In the appeal brief, there was some discussion about what translating means, which I don't think was super clear and maybe had something to do with the comparator. [00:15:14] Speaker 00: So the appeal brief did talk about the comparator claim term, but it was [00:15:21] Speaker 00: relevant to whether the streams were independent or not. [00:15:26] Speaker 00: So Appellant argued in the opening brief that Yost does not teach a comparator because it doesn't compare different streams originating from different sources. [00:15:40] Speaker 00: And the third and I think the last issue that was preserved in the opening brief at the board was [00:15:48] Speaker 00: about whether or not the examiner gave the proper weight to the declarations and nothing else. [00:15:59] Speaker 03: Nothing in there about data integrity? [00:16:02] Speaker 00: No data integrity and no, the other thing, binary data streams arguments. [00:16:09] Speaker 01: Thank you. [00:16:10] Speaker 00: Thank you. [00:16:11] Speaker 01: You've got some new bubble time, sir. [00:16:14] Speaker 01: Pardon? [00:16:14] Speaker 01: You've got some new bubble time. [00:16:17] Speaker ?: OK. [00:16:17] Speaker 05: Basically, the idea of did not give it the weight, we said, no, it's absolutely part of the intrinsic record and it's supposed to be given the same weight, or DETO makes that clear. [00:16:28] Speaker 05: It's supposed to be given the same weight as the specification as the definitions, and they're all there. [00:16:34] Speaker 05: And by the way, this idea of the comparator, the comparator was argued right and left. [00:16:39] Speaker 05: The declaration actually admits that virtually every computer system has a comparator. [00:16:44] Speaker 05: The whole point of the comparator argument was this data stream and its characteristics. [00:16:49] Speaker 05: Now in the last brief we call it protocol and format agnostic. [00:16:55] Speaker 05: Okay, that's not a term we used, but we did argue right from the beginning and all the way through all the briefing that our system cannot regard anything by way of formatting. [00:17:09] Speaker 05: It is dealing with ones and zeros, no matter what the data is, because it's only looking for matching patterns. [00:17:15] Speaker 05: Okay, every other system, okay, not one of them had independent data streams. [00:17:20] Speaker 05: They did not have the data integrity. [00:17:23] Speaker 05: They were all checks on an identical data stream. [00:17:27] Speaker 05: So when we say independent data stream, the word has its ordinary meaning. [00:17:30] Speaker 05: He does define it. [00:17:31] Speaker 05: There's no known relationship between them. [00:17:33] Speaker 05: We use the word independent in the specification with regard to something else. [00:17:37] Speaker 05: It's the same ordinary meaning. [00:17:39] Speaker 05: And they say there's no support for that. [00:17:41] Speaker 05: Excuse me. [00:17:41] Speaker 05: We refer to federal standard 1037C right at the get-go after the 24 [00:17:49] Speaker 05: paragraphs of qualifications, we went to and said we're going to rely on the ordinary meanings of these terms. [00:17:56] Speaker 05: For example, federal standard 1037C and you can go to the federal and by the way you go to that and it says this is for the use in telecommunications and computer of every federal agency and we put that as our support and then we went into a bunch of [00:18:14] Speaker 05: of ordinary meanings. [00:18:17] Speaker 05: You can go look those things up in the federal standard 1037C. [00:18:22] Speaker 05: So they keep saying we have no support for that declaration. [00:18:26] Speaker 05: First, we don't need any. [00:18:28] Speaker 05: It is 24 paragraphs with three doctorates and consulting with everybody from IBM to the KGB and teaching at worldwide universities where he is right now. [00:18:39] Speaker 05: All of that [00:18:41] Speaker 05: was adequate and is in the record, he bound himself to it, and we're entitled to that. [00:18:47] Speaker 05: And they had to consider that. [00:18:50] Speaker 05: It's not an option or more weight or less weight. [00:18:52] Speaker 05: No, that's the whole context behind the interpretation of the claim. [00:18:56] Speaker 03: Is the PTO bound by any inventor's statement about what? [00:19:01] Speaker ?: Pardon? [00:19:01] Speaker 03: Is the PTO bound by any statement made by the inventor during the prosecution as to the meaning of the claim? [00:19:08] Speaker 03: We're bound, though. [00:19:08] Speaker 03: The inventor is bound by it. [00:19:09] Speaker 03: You're bound, but is the PTO bound? [00:19:12] Speaker 03: Well, if the PTO says, well, this inventor is telling me the sky is orange, but I don't think the sky is orange, and so I'm not going to read that into the claim. [00:19:24] Speaker 03: I mean, would that be something wrong for the PTO to do? [00:19:28] Speaker 05: If the inventor [00:19:34] Speaker 05: binds himself to a definition of a term, then they are bound to that, because that's part of the record. [00:19:40] Speaker 05: He's bound to it, and the PTO's bound to it. [00:19:42] Speaker 03: But where's the case law that an inventor's subjective view as to the scope of his claim is something that an agency is bound by, and has to then incorporate that preferred interpretation, even though the words might not line up and actually say what the inventor wants? [00:20:01] Speaker 05: Okay. [00:20:03] Speaker 05: I didn't... Where's that case? [00:20:05] Speaker 05: I may have misstated. [00:20:06] Speaker 05: I don't mean that the PTO is bound to it. [00:20:08] Speaker 05: What I'm saying is the examiner is obligated to consider that as the same as if it's in the spec. [00:20:15] Speaker 05: Okay, when the examiner makes a statement, that is part of the historical record. [00:20:19] Speaker 05: And he has to consider that when he's interpreting the claim. [00:20:23] Speaker 05: And the basic reason for reversal here is that they committed legal error in their claim interpretation for data streams, independence of data streams, and in terms of data integrity throughout from the very beginning. [00:20:41] Speaker 05: And it's replete throughout the record.