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Our next case is NRA, Universal Electronics, Inc., document number 22-1782.

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Councilor Lucas, you reserve three minutes of your time for your vote, correct?

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Three minutes.

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Three minutes?

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Yes, right.

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All right.

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May it please the Court.

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Universe Electronics requests that the Court reverse the Board's decision finding claims 11 and 12 of the 072 application invalid as obvious over Baker, Darby, and Pietrzak.

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because the board's decision is not supported by substantial evidence.

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I want to get into three separate issues that we briefed.

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The first issue would be that substantial evidence does not support the board's decision that Petra's Act teaches the determining limitation.

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The second issue will be that substantial evidence does not support the board's finding that Darby teaches the response to determination limitation.

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And then finally, substantial evidence doesn't support the board's motivation to combine and modify findings or lack thereof.

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But I think before we even get into those issues, I kind of really wanted to summarize what the claims

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claim, because I think it really highlights the deficiencies in the board's decision.

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The way I read claims 11 and 12 is that you can have these favorite channels.

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You can set your own page on a universal electronic, excuse me, universal remote app on, for example, your phone.

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And then you can take it wherever you want.

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And those channels correspond, the channels from a network or whoever's

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giving you the content corresponds to specific icons for content providers, CNN, Fox, et cetera.

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And I think what's really important about the ability to save these favorites, so you have these icons linked to the channels is, and the specific claim limitations that we're going to talk about is you can move places, you can travel, and when you move,

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and there's this new electronic program guide at a different location.

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It sends you that information and then you have the specific software in the claims logic that does this analysis.

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It checks to see, well, with this new electronic program guide,

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Do I have these favorite channels connected with the right channel for that content provider or network?

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And if I do, that's okay.

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If I don't, the determination is made that there's a new channel, what the claim refers to as the second channel, it then links those back up.

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It matches those up.

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And I think that's really important because I think it's, if you read the Board's decision,

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All of the stuff about linking and mapping of the channels is kind of ignored.

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And all the prior art really just discusses, that they rely on, just discusses updates to program guides.

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That's it.

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That's in a nutshell.

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So I want to get to the first.

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Why don't you address your determining limitation?

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Great.

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We'd love to.

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So the determining limitation, I'm actually going to read it because I think it's, if you read the board's decision and even the examiners before that, you notice that a lot of

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When discussing determining limitation, a lot of stuff is left out.

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It says determining if the electronic program guide includes an assignment of a second channel number to a source of programming represented by at least one of the plurality of iconic representations.

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So in my example, so what you're doing here in this determining limitation is you have this software, you're in this new location, it's getting this new EPG updates and it's checking, well wait, is CNN still on channel 6?

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According to the program guide or is it on a new channel?

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That's what it's doing It's it's specifically as this logic that's doing that that I think is completely ignored by the board and

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So the second channel has to be different than the first channel that's referred to earlier.

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And it compares specific second channel's numbers with a specific content provider, ICON.

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But isn't that what the prior art, pit res stack, the conflict resolution disclosure, in that prior art reference,

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does exactly what you, sounds to me, what you're talking about.

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No, I would say it doesn't.

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That's not a determining step that it's making?

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No, so what Petra's doing is it's just getting different sources of

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the program guide and it's using different ways to decide what program guide or update am I going to use through these EPG loaders.

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That's all it's really doing.

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It's not doing that distinct logic

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where it's it's checking your favorites for example and what you mapped to the specific icons and it's figuring out well it's not figuring out well wait is there a new channel it's not doing any of that it's all it's doing is it has different ways they call them conflict resolution those conflict resolution means in Petra's Act are just determining what

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EPG should you use or what source should be used and what updates should be used.

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That's all it's really determining.

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Channels are not in favor channels and matching icons not discussed there.

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And so I think that's what's really important there is that you're missing, the board missed a large portion of the limitation.

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You know, the reference to the assignment of a second channel number and all of that.

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It really just says, if you look at Peter's Act, that's all it's doing is determining sources to use for the new electronic program guide.

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That's it.

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That's it.

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I'd like to talk about the second limitation, and that's the in-response determining limitation.

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Substantial evidence doesn't support the board's finding that DARPA discloses the in-response determination limitation.

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And I think, once again, we have similar issues with the board.

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First of all, in response to the determination limitation, it makes very clear you have to respond to the limitation that precedes it.

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It says in response to determining that the electronic program guide found a new channel number, the second channel number.

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Okay?

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It specifically refers back to the earlier limitation.

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And then it's going to update, as I talked to you in my example.

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If it finds that, it's going to update.

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You would concede that Darby teaches an updating channel number.

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I would say that Darby teaches updating the EPG generally.

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She says updates to EPG.

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Is it possible that a channel number could

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The results could end up being that a channel number is updated.

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Yes, that's possible in the sense, but just in the EPG way.

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It's not connected to, for example, the favorite channels and the linking of that to the icons.

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That's not being updated.

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There's no determination and there's no responding to that determination.

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All it's doing in Darby is it's saying you get some updates to the EPG generally.

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I don't understand what you're saying at all.

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So Darby has icons, right?

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Yeah.

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And it updates periodically.

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And you said just now that a channel could change.

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So Darby can recognize that, you know, ABC might have been on channel six in one location, but with the new program guide, it just downloaded, it's on channel seven.

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and it's going to update that icon to Channel 7.

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No, I misspoke when I said that.

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It's updating the channel in the EPG, potentially, as a result.

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Which then connects to the icon.

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Well, not necessarily.

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It's specifically just talking about the EPG.

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But Darby has icons, and it connected to the EPG.

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It can be, yes.

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And it updates the program.

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The program review.

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It does the same.

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It can do that.

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It can do that.

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But that's the result.

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If it can't do that, why isn't it obvious?

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That could happen, but what it's missing is that the trick is... I think you're making the pattern sound a lot more complicated than it is.

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You have icons that are connected channels, and if you get a different program guide, either a different area or a new program guide, if the channels change, it now connects the new channel number to the icons in the program guide.

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That's what the patent does, right?

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Yes, that's what the 07.2 application is correct.

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Yes, it's updating that because of the specific logic.

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I don't read Darby saying that it automatically

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Affects all of your channels and you've saved theirs as favorites and is able to it has the logic and the Determination software that's able to do that.

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I think well, how does Darby do it?

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I mean, it's relying on an electronic program guide.

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It has to be relying on software Correct, correct.

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That's correct It's different than the patent

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It's because I wanted to respond to that.

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Yeah, because I think what we get from Darby is just that I want to make sure I have that right.

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I think one of the issues

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the arguments that I wanted with Darby is that the board had already found and the examiner had already found that it didn't do any determination.

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So essentially... That's your argument.

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It just seems to me that you... I don't know if you conceded or not, but I would say you agreed with my prior statement about what Darby teaches.

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Your problem with Darby is that you see that the updating must be done based on the determination limitation.

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Correct.

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That's one of the issues.

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Now remember, they don't rely on Darby for the determination issue, which is probably the stronger argument.

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They only rely on PetriZik for that.

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And that doesn't even, for the determination limitation.

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The determination, again, it's just determining if there's a new channel number, right?

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It's looking to see if your icon that's linked to the pre-existing channel number has changed.

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Correct.

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Yes.

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That's what it's doing.

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Yes.

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You can use different words, but it's looking to see if there's a new channel number for what

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the channel number previously wise.

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Right, and my argument, Peter's saying it doesn't do that.

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All it's doing is just taking EPG data sources and then just figuring out which EPG to use.

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It doesn't even discuss channels.

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Just quickly, you have a motivation to combine argument, but I'm not sure I saw

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you brief that or raise it below.

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You only talk about modifying.

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Was the board supposed to understand that your argument that a person of skill in the art wouldn't modify things was a sort of sidelined motivation to combine?

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Yeah, so I think that it was, as those relate to a motivation to combine, modify or not.

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Is that the only place you raised it is where you said a person of skill in the art wouldn't modify?

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I think we also

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There was a sort of place.

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There was two different motivations.

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There's obviously the motivation Darby and Baker, and then the Darby-Baker-Hatres Act are the two motivations.

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Both of those arguments are based on the position that they generally state that the references do not teach the respective limitations.

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So I don't see that you made a different argument, and it seems to me that this argument was more likely waived than not.

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Well, I believe the board actually, the board did address one of the motivations.

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So one way or the other, you brought it up in your reply brief.

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That's correct.

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That is correct.

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The board did address the other one.

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I think that's the one it addressed.

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So you're out of time.

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So I wouldn't say that's a waiver because it was addressed.

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I'll restore your time.

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Okay.

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Thank you.

[00:14:18] Speaker 00:
Lisa Kort.

[00:14:20] Speaker 01:
Counselor Dang, correct?

[00:14:22] Speaker 00:
Correct, thank you.

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The claim elements at issue on appeal, the determining and in response to determining steps, do essentially one thing in a remote control.

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As Judge Bees pointed out, they automatically update a channel number that has changed.

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DARBEE teaches a remote control that downloads EPG data and updates the data.

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and it has ability to update subsets of data one time, not at a time, and teaches updating specific fields like channel numbers.

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PetraZack teaches a comprehensive way to query, retrieve, and load EPG data, and it allows the scaling of data, and as part of its conflict resolution scheme, excuse me, PetraZack's EPG controller can query, storage, and retrieve data like a channel number,

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And when the data changes, like a channel number, it can then update the data to save the new information.

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So together, Darby and Pietrzak teach the claimed automatic updating of a channel number that has changed.

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In response to determining limitation, it seemed to me that the applicant makes the logical argument that you can't respond to something you've determined unless you have also determined it.

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Did they make that argument below, or did the board address it?

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They did make an argument of some sort below.

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And the board essentially said, I believe what the board said was that the two

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references we're teaching.

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I do believe that the board addressed the two elements together and said that Darby teaches one and Pietrzak teaches the other.

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But I guess the arguments I understand is if Darby doesn't teach, for instance, the determining, then it can't teach in response to determining.

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that you would logically need the same reference to teach determining in order to also be able to teach in response to determining.

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Do you agree with that?

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I would say, Your Honor, that that would be an anticipation rejection, and this is an obviousness rejection.

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Perhaps the way the claim is written, there is an order to things.

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It doesn't necessarily require the steps to be taught by the same reference.

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Can I ask you about motivation to combine?

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We recently issued an opinion called Electa.

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I'm not sure if you're familiar with it, but we reiterated what I think was clear at KSR that there needs to be an express analysis of motivation to combine.

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Is there an express analysis here?

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And if not, why is that not a problem for you?

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Your Honor, first of all, I'd like to reiterate that they have forfeited any motivation to combine arguments.

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But there was an express motivation to combine finding by the examiner.

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Pages on Appendix 16, 42, 45, and 46, the examiner made two

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different motivation to combine analyses.

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One was to combine Baker and Darby, and one was to combine Baker, Darby, and Pietrzak.

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And appellants have not grappled with the actual analysis.

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They say that there were no findings at all.

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But actually, the examiner made findings on 16,

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42.

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And did the board also reach this issue, or was it formatted by the time it got to the board?

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The board didn't reach this issue because the opponents did not raise it before the board.

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Except in the annual plenary, which the board said was recommended.

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Do I have any other questions?

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Any questions?

[00:18:55] Speaker 01:
No, thank you.

[00:19:05] Speaker 02:
Just a couple of things.

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I think the main point on the Darby not teaching for suggesting the in response is that they rely on Darby alone.

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The board and the examiner said many, many times that Darby doesn't teach the determining step.

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So how can it logically teach the response to the determining step?

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There was discussion about, oh, this is not an anticipation analysis.

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But what's really important here is that they're relying on Darby to teacher suggest in the proposed combination.

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So it doesn't implicate anticipation.

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It implicates that they're relying on that reference to teacher suggest.

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solely that in response to determining limitation.

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And it was raised, the board ignored it completely.

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If you look at appendix 1 through 9, it was not discussed by the board.

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It was raised in the appeal brief at appendix 1663 and 1664.

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And it's another point that kind of highlights the issue with

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just ignoring the determination and not making findings on the determination in response to limitations and the specific what's required by that.

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Regarding the motivation to combine, there was a motivation to combine

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put forth, I think by the examiner, but not by the board, for the Baker-Darby combination.

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And that was at Appendix 1642.

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And the rationale was navigating channels to use content provider logos.

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argument on that is that's not a sufficient reason to combine Darby with Baker, because really you're using Darby for the EPG issue, and it's not even touched on in that motivation – in that alleged motivation.

[00:21:14] Speaker 02:
Does that – I don't have anything further.

[00:21:15] Speaker 01:
No.

[00:21:16] Speaker 01:
Thank you very much.

[00:21:20] Speaker 01:
We take the party for the arguments, and we'll take this case under advisement.