[00:00:00] Speaker 04:
fifteen fifty-eight and universal it's fine.

[00:00:07] Speaker 04:
Mr. Livingstein, you have a few minutes.

[00:00:12] Speaker 04:
That's correct.

[00:00:19] Speaker 01:
May it please the court.

[00:00:21] Speaker 01:
My name is Matthew Levenstein and I represent the Appellate Universal Electronics Inc.

[00:00:27] Speaker 01:
prosecution.

[00:00:28] Speaker 01:
The application issue here demonstrates the danger of engaging in hindsight bias on the record.

[00:00:36] Speaker 01:
I just want to briefly outline a few points that I want to make today.

[00:00:39] Speaker 01:
First, there is no record evidence, let alone something that rises level of substantial evidence to support the board's conclusion that the Arling reference

[00:00:50] Speaker 01:
meets the tag file limitation.

[00:00:52] Speaker 01:
And I'll just note that this is a different Arling reference than what was discussed before in an earlier appeal.

[00:00:59] Speaker 01:
The examiner and the board relied primarily on Arling paragraph 30, but they found disclosure of a brand and type of a device that simply does not exist in that paragraph.

[00:01:11] Speaker 01:
Second, there's no record evidence

[00:01:14] Speaker 01:
that a person of ordinary skill in the art would have been motivated to combine Arling with Nierumoto, the primary reference here.

[00:01:22] Speaker 01:
You know, the parties have written many pages on the motivation to combine issue, but what really counts here is what's the actual record evidence of motivation to combine.

[00:01:34] Speaker 01:
And the actual record evidence consists of just a few short lines

[00:01:39] Speaker 01:
from the examiner saying that a person of ordinary skill in the art would combine Arling with Niwamoto to, quote, improve overall operability.

[00:01:51] Speaker 01:
The problem with improving overall operability is that's a motivation for literally any invention that's ever been created.

[00:02:00] Speaker 01:
So in our view, that's insufficient to establish a motivation to combine the Arling and Niwamoto references.

[00:02:07] Speaker 01:
And very briefly,

[00:02:09] Speaker 01:
My third point is there's just no record evidence to support, and this is, excuse me, with respect to dependent claim three, that Niwamoto discloses the use of a file name as data that indicates that a link was activated.

[00:02:25] Speaker 01:
The board, without any analysis, simply accepted the examiner's conclusion that a selectable link on a user interface is equivalent to a file name.

[00:02:37] Speaker 01:
And even before we get into the details of the references themselves, just from a common sense perspective, that doesn't make sense.

[00:02:48] Speaker 00:
Can I ask you, with that background, one thing you didn't mention was collateral estoppel.

[00:02:55] Speaker 00:
And for me, I think that's a pretty strong argument.

[00:02:59] Speaker 00:
Given that there's a prior decision finding that Arlen taught a tag file,

[00:03:05] Speaker 00:
I think we might be bound by that.

[00:03:08] Speaker 00:
And so I'm wondering, I hope you're going to address it today.

[00:03:12] Speaker 01:
Absolutely, Your Honor.

[00:03:14] Speaker 01:
And if it's all right with you, Your Honor, I'd like to provide just a little bit of context about this claimed invention, which I think will help shed light on why collateral thoughtful should not apply here.

[00:03:26] Speaker 01:
And so

[00:03:28] Speaker 01:
What the claimed invention here is, in Independent Claim 2, it's a novel way of using a relay device in between the user's input device that has a graphical interface and one or more controllable appliances that you're attempting to control.

[00:03:44] Speaker 01:
And what the claimed invention does here in the 381 application that's different than the earlier 146 application

[00:03:51] Speaker 01:
is that it has a very specific tag file content and use that was not an issue in the earlier Inray Black decision.

[00:04:01] Speaker 01:
And that specific tag file content is, number one, it has to contain specifically the brand and type of the device that's to be controlled.

[00:04:10] Speaker 01:
And then it uses that brand and type to call up a code, a set of code data for a particular client that then can be reused over and over again as additional activatable links are activated on the user, on the input device, excuse me.

[00:04:28] Speaker 01:
And so this is reflected when you simply compare the claim language of claim two at issue here and the independent claim at issue in in Ray Black.

[00:04:39] Speaker 01:
In Ray Black, and I'm quoting here from Appendix page 718, 719.

[00:04:46] Speaker 01:
This is the claim language, quote, the tag file comprising both a definition of the controllable device and a listing of one or more commands to be transmitted to the controllable device, end quote.

[00:04:59] Speaker 01:
And here, as your honors are aware, the tag file requires, the tag file limitation requires something different, something more.

[00:05:06] Speaker 01:
It requires that the tag file comprise a first data indicative of the brand and type of device that is to be commanded.

[00:05:14] Speaker 01:
That was not at issue in Inray Black.

[00:05:17] Speaker 00:
What about the contention that your specification indicates that when you're referring to the word definition, you're talking about brand and type?

[00:05:28] Speaker 01:
The specification of the 381 application and actually the application at issue in Inray Black does use brand and type when you're using the term definition.

[00:05:36] Speaker 01:
But that does not mean that the issue before the Inray Black court was whether brand and type

[00:05:47] Speaker 01:
whether brand and type of the tag file were disclosed by the prior art.

[00:05:53] Speaker 01:
It was just a question of whether the more general, quote, definition was disclosed by the prior art.

[00:05:58] Speaker 01:
So this is much narrower.

[00:05:59] Speaker 00:
But if definition means brand and type, I'm not following you.

[00:06:03] Speaker 01:
I won't say that definition means brand and type.

[00:06:07] Speaker 01:
Certainly, in the in-rate black decision, they pointed to a portion of the specification that referred to, quote, device

[00:06:15] Speaker 01:
conversion definitions, but that relates to an entirely different aspect of the invention than what's set forth in figure 10b, which is, I believe, what you're referring to, definition 1020 that has the brand and type of the Motorola cable box setup.

[00:06:33] Speaker 01:
And so with that, I'll take a step back and just say, I don't think this issue was adequately raised by the director.

[00:06:42] Speaker 01:
Who would have raised it?

[00:06:43] Speaker 01:
I'm sorry.

[00:06:43] Speaker 00:
Who would have raised it and when?

[00:06:45] Speaker 01:
Certainly before the board at some point.

[00:06:48] Speaker 01:
In the examiner's answer, perhaps.

[00:06:51] Speaker 01:
But it wasn't.

[00:06:52] Speaker 00:
And so with that, you know, I don't think it's an issue that... So you think the examiner had to raise the quadrilateral stopple issue?

[00:07:00] Speaker 01:
I would say the examiner should have raised the collateral stoppable issue, yes.

[00:07:08] Speaker 01:
Turning back to my first point about whether there is substantial evidence that supports the board's vote.

[00:07:13] Speaker 04:
Why would the examiner have to raise the issue if there's no one disputing it or challenging the examiner on that point?

[00:07:22] Speaker 01:
On the collateral stoppable point?

[00:07:24] Speaker 01:
Well, it would seem prudent with knowledge of the issue after appellant disclosed the information relating to the previous in Ray Black decision that they would raise that and discuss that before the board to give the board an opportunity to rule on it.

[00:07:44] Speaker 01:
So returning to my first point about whether there's substantial evidence for the board's finding that Arlen meets the tag file limitation.

[00:07:51] Speaker 01:
There are three, let's say, relevant aspects to the limitation at issue here.

[00:07:57] Speaker 01:
The first is whether there is first data indicative of a brand and type of a device.

[00:08:04] Speaker 01:
And I'll begin with that.

[00:08:07] Speaker 01:
The evidence that the board relies on in Arling comes from paragraph 30 and 41.

[00:08:13] Speaker 01:
Paragraph 30 appears on appendix pages 847 and 848.

[00:08:19] Speaker 01:
And argument paragraph 41 appears on appendix page 850.

[00:08:23] Speaker 01:
I won't read those because they're long paragraphs.

[00:08:26] Speaker 01:
But what I can say is that neither paragraph discloses the use of brand and type in the context of an XML or tag file.

[00:08:38] Speaker 01:
Alternatively, what paragraph 30 does disclose is three other types of data, appliance data, media state data, and command data, but it never ties any of those data types to the brand and type of the device that's to be controlled.

[00:08:57] Speaker 01:
Moving on to the second kind of sublimitation, the second data indicative of one or more commands to be transmitted to the device

[00:09:06] Speaker 01:
It appears, although it's not entirely clear from the board decision, that the board is relying on the command data as the claims, quote, second data here.

[00:09:16] Speaker 01:
But the problem is the command data isn't stored in the tag file.

[00:09:20] Speaker 01:
It's not clearly stored in memory at all.

[00:09:22] Speaker 01:
And so it can't be the second data.

[00:09:27] Speaker 01:
Arling paragraph 30 at appendix page 847 and 848 says only that the appliance data and the media state data

[00:09:37] Speaker 01:
are stored in the .xml file, and that those data are used to generate command data.

[00:09:47] Speaker 01:
With those two limitations in mind, we get to the third limitation related to the tag file, which is that the first data and the second data must be in the same tag file itself.

[00:10:00] Speaker 01:
Paragraph 30 of Arling doesn't really teach that, and rather what it teaches is that you could save in memory appliance data and media state data, but not specifically in a single tag file, which again is what is the magic here of the claimed invention.

[00:10:18] Speaker 01:
Moving on to my second point, there's no substantial evidence to support the motivation to combine New Omoto with Arling.

[00:10:26] Speaker 01:
And there's no actual board findings in the board decision.

[00:10:30] Speaker 01:
What the board does is simply repeat what the examiner said, which is, and I'm quoting here, the examiner finds one would have been motivated to provide this functionality because it provides an established system with one-to-one mapping for accessing information, thereby improving overall operability.

[00:10:48] Speaker 01:
and then did not make an additional statement about motivation combined in the analysis.

[00:10:53] Speaker 01:
So without any analysis by the board, or really by the examiner either, to the extent we look there, there's no meat on the bones, there's no rational underpinning

[00:11:04] Speaker 01:
to create the claimed invention here.

[00:11:07] Speaker 01:
There's no discussion, for example, why an admittedly, quote, established system would benefit from the one-to-one mapping for accessing information.

[00:11:19] Speaker 01:
There's no explanation why the systems are similar in the first place.

[00:11:24] Speaker 01:
And there's

[00:11:26] Speaker 01:
Really no explanation why this specific type of tag file in Arling, which, by the way, doesn't disclose the claim tag limitation, would be beneficial to New Omoto at all.

[00:11:41] Speaker 01:
My final point, which I'll briefly make since my time is almost up, is that there's no substantial evidence for the board's finding that Niwamoto teaches the limitation of Claim 3, quote, wherein the data that functions to indicate that the activatable link was activated comprises a file name of the tag file.

[00:12:00] Speaker 01:
The gravamen of the board's argument here is that selectable links are equivalent to file names.

[00:12:08] Speaker 01:
And that comes from Appendix Page 8.

[00:12:10] Speaker 01:
And it's citing the examiner's answer in Appendix Page 793.

[00:12:16] Speaker 00:
Do you think they mean by that?

[00:12:18] Speaker 00:
They're equivalent in that that's what's used to invoke the tag or invoke the function?

[00:12:25] Speaker 01:
It could be.

[00:12:26] Speaker 01:
But frankly, I don't know what they mean by that.

[00:12:28] Speaker 00:
How do you?

[00:12:31] Speaker 00:
call and a file.

[00:12:33] Speaker 00:
How do you call a tag file?

[00:12:36] Speaker 01:
Do you know?

[00:12:37] Speaker 01:
Well, one way you could do it is with a file name.

[00:12:40] Speaker 00:
Are there other ways?

[00:12:42] Speaker 01:
Possibly, but there's no record evidence about what other ways could be used or could not be used.

[00:12:50] Speaker 00:
Do all tag files have a name?

[00:12:54] Speaker 01:
I would assume so, Your Honor, but that's based on me, not based on any record evidence.

[00:13:01] Speaker 01:
and I see that my time is up.

[00:13:03] Speaker 03:
Good morning, Your Honors.

[00:13:04] Speaker 03:
May it please the Court.

[00:13:06] Speaker 03:
I'd like to begin by addressing the collateral estoppel issue.

[00:13:10] Speaker 03:
Judge Raina, you offered the NRAE Black decision, which decided or found that the Arling reference in paragraph 30 disclosed a tag file limitation, having two additional limitations, including a definition of a device and a command for the device to be controlled.

[00:13:27] Speaker 03:
That's substantially the same issue that we're dealing with here.

[00:13:30] Speaker 03:
Could you address waiver?

[00:13:32] Speaker 00:
Why, I mean, it does seem a little, to be honest, I'm not sure about the waiver argument, because the board, it seems to me, should be able to address it for the first time.

[00:13:42] Speaker 00:
But I would like to hear from you legally why that would be correct.

[00:13:46] Speaker 03:
Yeah, so I think there are exceptions to the general principles of waiver if there are circumstances that excuse it.

[00:13:52] Speaker 03:
In this case, there is an MPEP section 2100, which specifically says if there is material information.

[00:14:01] Speaker 04:
That's true.

[00:14:01] Speaker 04:
Just saying.

[00:14:02] Speaker 04:
Just Toronto?

[00:14:04] Speaker 02:
Yes.

[00:14:05] Speaker 04:
Yes.

[00:14:06] Speaker 04:
Did you have a question?

[00:14:08] Speaker 02:
No, I did not.

[00:14:08] Speaker 02:
I'm sorry.

[00:14:09] Speaker 03:
Okay.

[00:14:10] Speaker 02:
All right.

[00:14:10] Speaker 04:
Proceed please.

[00:14:11] Speaker 03:
Okay.

[00:14:12] Speaker 03:
Thank you.

[00:14:12] Speaker 03:
The MPEP section 2100 specifically says if there's material information that arises from a litigation, the applicant must bring that to the attention of the examiner or the PTO official that's handling that decision.

[00:14:28] Speaker 03:
And in this case, the In re Black decision issued in July of 2019

[00:14:33] Speaker 03:
Okay.

[00:14:34] Speaker 03:
After that decision, in this application, one month later, in August of 2019, they amended their claims to overcome the NRAE Black decision.

[00:14:44] Speaker 03:
And we know that because if you look at their reply brief, they actually state that in page 12 of their reply brief in footnote four.

[00:14:53] Speaker 03:
They said UEI amended the claims of the three-on-one application after the NRAE Black decision was issued to differentiate the tag file limitation

[00:15:01] Speaker 03:
Issue here from the tag-file limitation that an issue in black if you look at their claim amendment It doesn't make any mention to the examiner of the n-ray black decision or the reason for making that amendment other than to clarify the Invention so the examiner was not put on notice at that time when they made the claim amendment and

[00:15:18] Speaker 03:
Then four months later in October of 2019, the examiner issued the non-final office action, which is the basis for this appeal.

[00:15:28] Speaker 03:
The examiner had not been put on notice of the Henry Black decision at that point.

[00:15:33] Speaker 03:
Then in January of 2020, UEI filed a notice of appeal.

[00:15:37] Speaker 03:
There's still no disclosure.

[00:15:38] Speaker 03:
It wasn't until they filed their appeal brief in June of 2020 after

[00:15:43] Speaker 03:
after all this had occurred almost a year later, when they attached the Henry Black decision as an attachment, but they didn't describe it in their appeal brief.

[00:15:51] Speaker 03:
If you look at their appeal brief, and they described it in the related cases, they did disclose that there was this related appeal.

[00:15:58] Speaker 03:
They didn't make any mention of the Henry Black decision by name or appeal number.

[00:16:03] Speaker 04:
And what about the argument that the other side makes that the office itself should have been more assertive in making this argument and raising

[00:16:12] Speaker 03:
and assuring Henry Black.

[00:16:16] Speaker 03:
Well, in this case, if the examiner or the board were made aware of the decision, they may have raised the collateral estoppel issue.

[00:16:25] Speaker 03:
It's just in this case, there's no evidence that they were ever aware of it.

[00:16:28] Speaker 03:
The Henry Black decision was never cited on an IDS.

[00:16:31] Speaker 03:
It's not described in the appeal brief.

[00:16:32] Speaker 03:
It's just kind of attached as an exhibit, but not actually described in the appeal brief.

[00:16:37] Speaker 03:
And so if you read the appeal brief, you'd actually have no idea that the Henry Black decision was included.

[00:16:44] Speaker 03:
And then, when we got this appeal at the Solicitor's Office, we recalled this.

[00:16:48] Speaker 03:
I actually happened to work on that Inray Black appeal.

[00:16:51] Speaker 03:
We looked at it, because it did kind of ring a bell.

[00:16:53] Speaker 03:
And we looked at it, and we found this decision.

[00:16:54] Speaker 03:
And we're like, it has to tag file limitation.

[00:16:56] Speaker 03:
And we thought it was prudent to bring it to the attention of the court.

[00:16:59] Speaker 03:
So you at least were made aware of that decision.

[00:17:01] Speaker 04:
Assuming that none of the parties brought up the case, what authority would we have at that point to assert the Inray Black on your own?

[00:17:12] Speaker 03:
Well, it is a decision of this court.

[00:17:15] Speaker 03:
I think it certainly is very persuasive.

[00:17:18] Speaker 03:
It's a very persuasive decision.

[00:17:19] Speaker 03:
I mean, it's a carefully considered decision that expressly considered the tag file limitation, spanning 14 pages.

[00:17:27] Speaker 03:
And it found that Arling, paragraph 30,

[00:17:29] Speaker 03:
Teaches that limitation including device definitions and commands to be sent to the control device and the only difference real substantive difference is instead of device definitions they've changed that to brand and type of the appliance and

[00:17:45] Speaker 03:
And that's not really a material difference.

[00:17:47] Speaker 03:
I think, as Judge Dole, you were making that point.

[00:17:50] Speaker 03:
The 381 specification actually says that device definitions refer to the branded type.

[00:17:55] Speaker 03:
And Arlene does the same thing.

[00:17:57] Speaker 03:
If you look at paragraphs 18.

[00:17:58] Speaker 02:
I'm sorry.

[00:18:00] Speaker 02:
Can you give me the very specific page citations, the one that you just mentioned and the one that you're about to mention?

[00:18:08] Speaker 02:
It's the same SPAC, right?

[00:18:11] Speaker 03:
Yeah, I think the 381 specification refers to device definitions as referring to brand and type.

[00:18:19] Speaker 03:
That's in the specification.

[00:18:20] Speaker 02:
Yeah, I want a page and line number.

[00:18:31] Speaker 03:
I know it's in our brief.

[00:18:32] Speaker 03:
I'll have to pull that.

[00:18:34] Speaker 03:
Let me see.

[00:18:36] Speaker 03:
Looks like the 381 application has this at APPX 59.

[00:18:43] Speaker 03:
59?

[00:18:45] Speaker 03:
I believe so.

[00:18:49] Speaker 03:
I'm looking at page 9 of the director's brief where we talk about where they have figure 10b.

[00:18:59] Speaker 02:
Starting on line 3.

[00:19:05] Speaker 03:
yet if you look at a p p x fifty nine of the appendix it says uh... refers to the uh... i'm sorry i have a right here so it's uh... five six seven it's like eight o'clock eight p p x fifty nine

[00:19:19] Speaker 03:
It says you refer to this appliance type CE1376.

[00:19:22] Speaker 03:
It says EG, a Motorola cable STB, which refers to set-top box.

[00:19:27] Speaker 03:
So that's referring to it by brand and type.

[00:19:30] Speaker 03:
That's in the 381 specification.

[00:19:32] Speaker 03:
And then if you look at the Arling reference, it's in three paragraphs, paragraph 18.

[00:19:42] Speaker 03:
Which is on what page?

[00:19:46] Speaker 03:
APPX845.

[00:19:48] Speaker 03:
Thank you.

[00:19:51] Speaker 03:
Kind of in the middle of the paragraph here.

[00:19:53] Speaker 03:
It refers to home appliances of different brand model or type.

[00:20:01] Speaker 03:
What paragraph?

[00:20:03] Speaker 03:
That's paragraph 18.

[00:20:05] Speaker 03:
Right in the middle, there's a sentence that starts with, once data has been saved, it may be recalled at a later time.

[00:20:12] Speaker 03:
It's kind of a long sentence.

[00:20:13] Speaker 03:
You go down like five or six lines.

[00:20:15] Speaker 03:
It refers to different home entertainment centers having a set of home appliances of different brand, model, or type, which offer analogous services.

[00:20:26] Speaker 03:
And then again,

[00:20:28] Speaker 03:
the following page at 8 ppx 846 paragraph 26 the very first sentence it says to identify home appliances by type and make and then in parentheses it says and sometimes model

[00:20:45] Speaker 03:
And then again in paragraph 31 it again refers, this is the APPX 848.

[00:20:50] Speaker 03:
At paragraph 31, the first sentence, it talks about appliances 12B may correspond to appliances 12A in type but may differ in make and or model.

[00:21:08] Speaker 02:
And what specifically was the dispute

[00:21:13] Speaker 02:
of pertinence to this collateral estoppel question, what was the specific dispute in In Re Black?

[00:21:23] Speaker 03:
I think UEI is arguing that the limitation at issue in In Re Black.

[00:21:30] Speaker 02:
I think, I'm sorry, I think, right, so I understand, I think, UEI's argument is that the limitation was broader.

[00:21:38] Speaker 02:
and something narrow in Arling could satisfy that limitation, and that's all that was actually decided in rate black, is that, was there a dispute about, yeah, I guess that's how I understand the argument.

[00:21:55] Speaker 02:
At least in some circumstances, that would not be enough for issue preclusion because you can come within something broader without a finding that it is a specific subset of that broader thing.

[00:22:09] Speaker 03:
I think that could be true in some cases, but in this case, and we've done a comparison in the director's brief at page 33, and in the specification in both the 381 application and in the description in Arling, there doesn't seem to be any really material difference between the limitation of a device definition

[00:22:30] Speaker 03:
The brand and type information they seem to be referring to the same thing and to the extent They're not it seems like it's not a material difference and in that situation and collateral stopple does apply

[00:22:43] Speaker 03:
And the other elements are certainly met.

[00:22:45] Speaker 03:
We've got the same party, UEI.

[00:22:48] Speaker 03:
We've got a final judgment by this court.

[00:22:51] Speaker 03:
They had a full and fair opportunity to litigate the issue.

[00:22:54] Speaker 03:
And so I think lateral estoppel is met.

[00:22:57] Speaker 03:
And there hasn't been a waiver, because as I was explaining, there are reasonable circumstances that explain why the examiner and the board didn't raise collateral estoppel.

[00:23:05] Speaker 03:
And the director raised it at the first time that we were aware of it and brought it to the court's attention.

[00:23:11] Speaker 03:
And even putting aside collateral stoppable, if you just look at the merits of the decision, I think NRA Black is a carefully considered decision.

[00:23:18] Speaker 03:
Like I said, it was spanning 14 pages.

[00:23:20] Speaker 03:
It considered the issues that came to, I think, a firm conclusion that Arlene does teach or disclose a tag file limitation, having device definitions.

[00:23:30] Speaker 03:
And command data and that's you know to the extent there is a difference between device definitions and the brand and type information We just walk through the disclosure of our link that teaches those You know the brand and type information and so I think it's it's you know Even putting collateral stoppable aside just on the merits.

[00:23:47] Speaker 03:
It's a it's met the substantial evidence that supports that rejection

[00:23:56] Speaker 03:
There's no further questions on the collateral stockpile and just the merits of whether Arlene teaches that tag file.

[00:24:02] Speaker 03:
I'm happy to answer if there's any questions on those two issues.

[00:24:06] Speaker 03:
Otherwise, I'll move on to the motivation to comply an issue.

[00:24:11] Speaker 03:
In this case, if you read the board's decision, it says that it agrees with the examiner's decision, affirms the rejection, and it's adding the following emphasis.

[00:24:21] Speaker 03:
And it went on to repeat the examiner's motivation to combine, which was that there's one-to-one mapping, which provides improved operability.

[00:24:34] Speaker 03:
And that seems like it's a fairly good rationale here, because the whole purpose of Arling is, if you look at figure 10B,

[00:24:45] Speaker 03:
I'm sorry.

[00:24:45] Speaker 03:
Figure one in our lane.

[00:24:47] Speaker 03:
Whole purpose is you have one set of devices in the home appliance center on 12A.

[00:24:51] Speaker 03:
You have a second set of systems or appliances in 12B.

[00:24:55] Speaker 03:
You're going to provide device definitions and command data from the first set

[00:25:01] Speaker 03:
to the second set.

[00:25:02] Speaker 03:
So you have this one-to-one mapping.

[00:25:04] Speaker 03:
So then when you hit your remote control, you can have the same functionality on the second set of devices.

[00:25:09] Speaker 03:
And so I think that does improve functionality, operability.

[00:25:11] Speaker 03:
It provides the one-to-one mapping.

[00:25:13] Speaker 03:
That seems like a sufficient motivation to combine the references.

[00:25:17] Speaker 03:
And then there's no further questions on that issue.

[00:25:20] Speaker 03:
Just turning to the file name limitation, the claim three.

[00:25:23] Speaker 03:
The examiner and the board both found that that limitation was met by the combination of Mimomocho and Arling.

[00:25:30] Speaker 03:
And they found that, you know, as we talked about, Arlene teaches the tag file limitation.

[00:25:35] Speaker 03:
Neo Emoto discloses the file name part of it.

[00:25:39] Speaker 03:
And when you combine those two, you have a tag file with the file name.

[00:25:43] Speaker 00:
And.

[00:25:43] Speaker 00:
Did they say, use the word file name?

[00:25:48] Speaker 00:
In the, I would respect.

[00:25:50] Speaker 00:
Did they say that it taught a file name specifically?

[00:25:53] Speaker 03:
Let's see.

[00:25:53] Speaker 03:
This is in, it's in the office section at APPX 653.

[00:25:58] Speaker 00:
Okay.

[00:26:12] Speaker 03:
Yeah, it says this is at the bottom of a six six six five three.

[00:26:15] Speaker 03:
We're talking about plane three Says we're in the data that functions indicate that the activatable link was activated comprises a file name of the tag file and then in parentheses sites to nema moto column 23 lines 42 to column 24 So it does it does use the word filing there

[00:26:38] Speaker 03:
And their challenge seems to be that Niwamoto doesn't teach that limitation by itself, but it was really a combination of the two references.

[00:26:48] Speaker 03:
So I think it's kind of a moot point.

[00:26:52] Speaker 03:
So I'm almost out of time.

[00:26:53] Speaker 03:
If there's no further.

[00:26:54] Speaker 00:
One question is, I think that they said there was a concern about the examiner's statement that

[00:27:02] Speaker 00:
The selectable link, I hope I have the language right, is equivalent to the file name?

[00:27:08] Speaker 00:
I believe that's right.

[00:27:10] Speaker 03:
I believe the examiner found that the selectable link, that's the link that's going to show up on your remote control.

[00:27:16] Speaker 03:
It's going to have a link there with something that was equivalent to a file name and found that was sufficient to meet the limitation.

[00:27:32] Speaker 01:
thank you your honor I will be very brief in just a few points I want to make and while I appreciate my colleague Gumschen in making his arguments about claim three respectfully I still don't see how a selectable link is equivalent to a file name and I don't think the record reveals that either

[00:28:01] Speaker 01:
the portions of the office action on appendix page 653 that cites to Niwamoto, which is column 23, line 42 to column 24, line 60, I don't believe that they actually use file names in any of those portions.

[00:28:26] Speaker 01:
So while the examiner used the word file name,

[00:28:29] Speaker 01:
I just don't think it's enough to say that the selectable link is equivalent to that file name.

[00:28:36] Speaker 01:
Turning back to the collateral stopple issue very briefly, again, my colleague had said that, well, the issues were substantially the same.

[00:28:43] Speaker 01:
He said, well, that's not really the question here.

[00:28:46] Speaker 01:
They have to be the same issue.

[00:28:48] Speaker 01:
And here, they were not the same issue, even though they both nominally include a tag file, nominally relate to, excuse me, a tag file limitation.

[00:28:59] Speaker 01:
Because of those differences in the tag file limitation, it does materially alter the invalidity question, and collateral stoppals shouldn't apply.

[00:29:09] Speaker 01:
With respect to the disclosure of the In re Black decision, if you look at appendix pages 714 to 750, you can see that UEI did submit the board decision on appeal and the In re Black decision relating to the 146 application.

[00:29:23] Speaker 01:
And I'm not aware of any reason why the examiner couldn't have addressed collateral stoppals

[00:29:28] Speaker 01:
in the examiner's answer.

[00:29:31] Speaker 01:
and finally with respect to the other paragraphs of Arling that use the words brand and type I don't believe the board relied on those and beyond that this again just highlights the concern with this thin record here that it appears to be a cherry picking of relevant words from the references in order to come to the claimed invention that

[00:29:59] Speaker 01:
UEI's view is simply an application of hindsight bias.

[00:30:04] Speaker 01:
I see my time is up and unless there are any questions