[00:00:00] Speaker 00: Our first case is Ioengine versus Ingenico, 2021, 12-27, 13-31, and 13-32. [00:00:08] Speaker 00: Mr. Liebowitz. [00:00:09] Speaker 00: Thank you, Your Honor. [00:00:14] Speaker 04: May it please the Court. [00:00:16] Speaker 04: Noah Liebowitz on behalf of appellant and patent owner, Ioengine. [00:00:20] Speaker 04: The three final written decisions of the PTAB in these cases finding invalid certain of the challenge claims in three related cases and three related patents should be reversed for a number of reasons. [00:00:36] Speaker 04: First, the [00:00:38] Speaker 04: PTAB's construction of the term interactive user interface, which was a key term and key to all three decisions, vacillated between different constructions. [00:00:49] Speaker 04: And the PTAB ultimately arrived at one that allows any computer, no matter how remote, to take any response, no matter how attenuated, to the user. [00:01:01] Speaker 04: And that is not what the intrinsic evidence would support. [00:01:04] Speaker 04: not what the extrinsic evidence would support, and not what a person of ordinary skill in the art would understand an interactive user interface to be at the time of the invention. [00:01:16] Speaker 04: Second, even under the board's construction of interactive user interface, substantial evidence does not support [00:01:23] Speaker 04: that the reference, the ART AIDA, would anticipate the claims of the 969 and 703 patents. [00:01:32] Speaker 04: AIDA discloses only a display of a picture of menus, and that would not meet the term interactive user interface under any construction, certainly not the correct construction. [00:01:46] Speaker 04: Third, with respect to the 047 patent, the board's obviousness analysis of combining AIDA and Genski [00:01:53] Speaker 04: was riddled with hindsight and a view of the world that we live in today, where everyone carries a touchscreen smartphone with them in their pocket, as opposed to the world that existed in 2004, when the patents were filed, three years before the iPhone was released. [00:02:11] Speaker 04: And a person of ordinary skill and the art at the time would not have had motivation to combine those references. [00:02:17] Speaker 04: And in fact, they teach away from each other in relevant aspects. [00:02:21] Speaker 02: Is that the combination where you're switching out the menu screens against these graphical user interface? [00:02:29] Speaker 04: Correct, Judge, yes. [00:02:31] Speaker 02: Graphical user interfaces were clearly known by 2004. [00:02:35] Speaker 04: Yes, Your Honor, the graphical user interfaces were certainly known. [00:02:39] Speaker 04: And in fact, AIDA even refers to a portable PDA and computers as terminals. [00:02:47] Speaker 04: But AIDA's specific. [00:02:48] Speaker 02: I guess the concern I have here is it was known in the art. [00:02:53] Speaker 02: Clearly, the primary reference had its own user interface. [00:02:56] Speaker 02: It was different, but it was a user interface. [00:02:59] Speaker 02: And this is a substantial evidence finding that we have to review differentially. [00:03:04] Speaker 02: I don't really know what we can do. [00:03:07] Speaker 02: on the other side said that, yes, a skilled artist would be motivated to swap out the menu screens for this particular graphical user interface. [00:03:18] Speaker 02: I don't know where we go from there. [00:03:20] Speaker 04: Well, Your Honor, the references themselves, right? [00:03:23] Speaker 04: I mean, yeah, I get it itself. [00:03:25] Speaker 04: talks about the particular interface that it provides specifically so that it would not be limited to certain types of terminals or certain types of phones, but in fact be able to apply to a broad range, in fact the broadest range possible of devices at the time. [00:03:43] Speaker 04: And the evidence of record even supports, in fact, there was evidence put in on what phones and what terminals were available at the time, including and generally push button type devices. [00:03:56] Speaker 04: And that's why AIDA goes to great pains to describe the interface that it provides with just the pictures of menus. [00:04:06] Speaker 04: If it was just, OK, have a GUI on your terminal, [00:04:10] Speaker 04: Why would AIDA need to provide all the disclosure that it does with respect to the specific system that it, the interface that it talks about? [00:04:18] Speaker 04: Because you're talking about two different devices and having a GUI where you can cause program code to be executed as the claims require on a different device than the one that you're interacting with. [00:04:30] Speaker 03: Counsel, can I ask you a question about your claim construction? [00:04:34] Speaker 03: It appears to me. [00:04:35] Speaker 03: that you have changed your claim construction on appeal. [00:04:39] Speaker 03: The substance of the claim construction now proffered differs substantively from that below. [00:04:45] Speaker 03: And so why isn't your claim construction forfeited? [00:04:50] Speaker 04: So Your Honor, I think the language, some of the words in the claim construction that we put in has changed. [00:04:57] Speaker 04: But the claim construction that we proffered here embodies the exact same concepts that we had below. [00:05:12] Speaker 04: Well, I think, Your Honor, I think the only cases that petitioners cited in the cases I'm aware on this point are where the party below didn't proffer any claim construction for the term that was- Well, there are cases where a party changes its claim construction, and the court has said that that's improper to raise a new claim construction on appeal. [00:05:31] Speaker 03: So I guess we should go ahead and talk about the other issue. [00:05:35] Speaker 03: Previously, you had- [00:05:38] Speaker 03: the terminal, and now you have the device executing code to present affect the presentation, right? [00:05:44] Speaker 03: Why isn't that different? [00:05:45] Speaker 03: I mean, terminal's pretty broad, and the device executing code to present affect the presentation differs from terminal. [00:05:53] Speaker 04: Well, Your Honor, so as the board and everyone recognized, in the challenge claims, that is the terminal. [00:06:00] Speaker 04: The challenge claims require that that device is the terminal. [00:06:03] Speaker 04: The issue was, and the reason why [00:06:06] Speaker 04: Part of the reason why the board came to the construction it did is it looked at other claims in the patents that were not challenged and said that in those claims, the portable device could be the device that executes the interface. [00:06:23] Speaker 04: And so our construction now embodies the same concept. [00:06:25] Speaker 04: And in fact, we have a number of places in our briefing and in the appendix. [00:06:29] Speaker 04: I can refer, Your Honor, to appendix 12.852 and 12.236 to 37. [00:06:36] Speaker 04: And the board, in fact, recognized this as part of its own analysis, that what our argument was... I'm a little lost. [00:06:42] Speaker 02: You're saying terminal means the same thing as device that executes all that code? [00:06:47] Speaker 04: With respect to the challenge claims, it does, Your Honor, because the challenge claims require that to be the terminal. [00:06:52] Speaker 04: Why didn't you just say terminal? [00:06:54] Speaker 04: Well, that's what we said below, Your Honor, and the board said... Why didn't you just say terminal again, to us? [00:06:59] Speaker 04: Because that we were trying to do was account for the point that the board raised right where it went we think Incorrectly into the construction that it came up with which was just a computer which can refer to any device And then you switch the idea of something about taking action that whether some responsive action by some device or terminal to now we're going to [00:07:26] Speaker 02: modified what is presented on the display or on the presentation. [00:07:31] Speaker 02: So that seemed to be another switch in your claim construction that you're presenting to us now compared to what you presented in your patented response. [00:07:40] Speaker 04: So again, Your Honor, so that particular point on modification was what we had presented in the preliminary patent owner response. [00:07:48] Speaker 02: Right. [00:07:48] Speaker 02: Then it was rejected by the board in the institution decision. [00:07:51] Speaker 02: And then you didn't pick it back up in your patent owner response. [00:07:54] Speaker 02: I mean, to me, that looks like an abandonment of a particular claim construction argument that you gave up on. [00:08:01] Speaker 02: The board clearly didn't need to address it. [00:08:03] Speaker 02: And now it pops up out of nowhere. [00:08:06] Speaker 02: like Jack in the Box here at the Federal Circuit. [00:08:09] Speaker 02: So I'm trying to figure out why shouldn't we consider that to be an abandoned argument. [00:08:14] Speaker 04: Well, so Your Honor, again, the substance of what we were arguing below and here did not change. [00:08:22] Speaker 04: The concepts are the same, meaning that the way the device responds. [00:08:26] Speaker 02: Having a device respond in a particular way and then modifying what is displayed on the monitor, those are two different thoughts, I think. [00:08:34] Speaker 04: Well, I think, Your Honor, in the context of the construction of IUI, which both sides have presented as a display or presentation that the device is providing to the user, the modification of that is the way the device responds to the user's interaction with it. [00:08:49] Speaker 04: And I think that is what we argued below, even if the wording was slightly different, and certainly on the point of which device is executing the code. [00:08:59] Speaker 02: Do you believe that the meaning of IUI depends on the claim throughout all of your claims? [00:09:03] Speaker 04: We don't think the meaning of IOI changes depending on the challenge claims, Your Honor. [00:09:09] Speaker 03: Can you address your printed matter of argument? [00:09:15] Speaker 04: Yes, Your Honor. [00:09:16] Speaker 04: So our argument on the printed matter with respect to those claims is that the board incorrectly applied the printed matter doctrine to what are functional limitations. [00:09:28] Speaker 04: The cases that deal with printed matter all deal with the communicative content. [00:09:34] Speaker 04: What matter is provided for a communicative content? [00:09:36] Speaker 04: That's the words [00:09:37] Speaker 04: that Bard uses and all the cases that came before it. [00:09:40] Speaker 04: And if you look at those cases, it's all about information that's provided to a person. [00:09:46] Speaker 04: Instructions, a hash mark on a band, or a... That's the question here. [00:09:54] Speaker 02: When your claim says transmitting encrypted communications, is that... [00:10:02] Speaker 02: the fact that you're transmitting communications, is that transmitting information? [00:10:06] Speaker 02: And if it's transmitting information, then should that information be considered printed matter, for purposes of the printed matter doctrine? [00:10:13] Speaker 04: Sure. [00:10:13] Speaker 04: So Your Honor, so the term in the claim is facilitating the transmission of encrypted communications. [00:10:19] Speaker 04: And we think both with respect to the term facilitating, in terms of what the system is doing, and with respect to encrypted communications, those are both functional aspects. [00:10:29] Speaker 04: Encrypted communications differ. [00:10:31] Speaker 04: It's not a matter of [00:10:32] Speaker 04: of content, right? [00:10:33] Speaker 04: You can have an encrypted communication that's the movie Home Alone, or you can have an encrypted communication that's the movie Casablanca. [00:10:41] Speaker 04: That doesn't matter. [00:10:42] Speaker 04: It's not being transmitted for its communicative content. [00:10:45] Speaker 04: An encrypted communication is functionally different in form from an unencrypted communication. [00:10:51] Speaker 02: So if the claims that transmission of an encrypted electronic copy of Casablanca, would you say that's printed matter? [00:11:00] Speaker 04: The Casablanca part of it is. [00:11:03] Speaker 04: And I think that's the point, that you're talking about what's being provided for the communicative content as opposed to a difference in form and function as it relates to a computer system. [00:11:16] Speaker 04: The two elements that issue here in terms of encrypted communications and program code, those are functional aspects and functional computing aspects. [00:11:26] Speaker 04: And we're not aware of a case where you can't. [00:11:27] Speaker 03: You keep on saying functional, but they could be structural as well. [00:11:30] Speaker 03: At least program code, right? [00:11:33] Speaker 04: Of course. [00:11:33] Speaker 04: It could also be structural. [00:11:35] Speaker 04: But it's certainly not. [00:11:35] Speaker 03: Because the same program code is structural in the context of 112.6 paragraph. [00:11:40] Speaker 04: Certainly, Your Honor. [00:11:41] Speaker 04: It could certainly be structural as well. [00:11:42] Speaker 04: That's not content in terms of communicating a particular content to a user. [00:11:50] Speaker 03: What do you think the substrate is? [00:11:53] Speaker 04: With respect to the program? [00:11:56] Speaker 04: Sure, I think the substrate are the devices [00:12:01] Speaker 04: Yes, and I think we do address that in the briefing, Your Honor. [00:12:04] Speaker 04: But the substrate is the portable device or the terminal that is going to be executing either that program code or the encrypted communications. [00:12:15] Speaker 04: And again, Your Honor, the specification, we're not reading it. [00:12:20] Speaker 04: A petitioner accused us of reading the limitations from the specification into the claims. [00:12:24] Speaker 04: That's not what we're doing. [00:12:25] Speaker 04: What we're saying is you can look to the specification to understand the functional relationship between the element and the other parts of the claim. [00:12:35] Speaker 00: Counsel, you're into your bottle time. [00:12:36] Speaker 00: You can use it or save it. [00:12:38] Speaker 04: I'd like to reserve some time for a bottle. [00:12:40] Speaker 00: Thank you, Your Honor. [00:12:42] Speaker 00: All right. [00:12:42] Speaker 00: I'll save it for you. [00:12:43] Speaker 00: Mr. Green. [00:12:54] Speaker 01: More on screen for the FLE and GENECO. [00:13:00] Speaker 01: Excuse me, Your Honor. [00:13:02] Speaker 01: I'd first like to address the interpretation or the construction of IUI. [00:13:10] Speaker 01: I think we can sort of summarize, I think, what the argument is by IOENGINE. [00:13:19] Speaker 01: by referring to page three of the reply brief, in which they say that by placing no limit on how remote the reported action can be, the board's construction contradicts the consistent language of interactive in the patents at issue, in which every example of interaction with an IUI results in responsive action by the device presenting the interface. [00:13:44] Speaker 01: First of all, I would take issue of consistent usage of interactive, because I don't think the word interactive is found in the patents. [00:13:51] Speaker 01: But I'd also take issue with the assertion that every example results in responsive action by the device presenting the interface. [00:14:03] Speaker 01: The only real evidence cited there is a affidavit or declaration by their expert. [00:14:15] Speaker 01: In that declaration, the statement is there that's attributed to him that in all examples of the baseline IUIs, it is the device presenting the user interface that takes action in response to user interaction by responding to the user. [00:14:34] Speaker 01: Well, that statement, which is cited in support of the assertion in the reply brief, is only dealing with prior art. [00:14:44] Speaker 01: it's talking about all the examples of the baseline IUIs, which is prior art. [00:14:48] Speaker 01: It's the Apple operating system or Microsoft operating system. [00:14:54] Speaker 01: So that statement does not support the assertion that all of the examples of user interaction with an IUI result in responsive action by the device presenting the interface. [00:15:09] Speaker 01: In fact, [00:15:14] Speaker 01: witness goes on to actually talk about the present invention as opposed to the prior art. [00:15:19] Speaker 01: And what he says about the present invention, I think, is instructive. [00:15:23] Speaker 01: In paragraph 52 on appendix page 4708, he says, all the descriptions in the 047 patent of user interaction with the IUI involve the terminal taking action responsibly to user interaction by responding to the user. [00:15:41] Speaker 01: That's in the same [00:15:42] Speaker 01: Paragraph in which the quoted statement was taken. [00:15:45] Speaker 00: Counsel, do you want to address the printed matter issue that your opponent just finished with? [00:15:51] Speaker 01: Sure, I'd love to, your honor. [00:15:53] Speaker 01: I would just go on to say, I'd like to finish this thought, though. [00:15:55] Speaker 01: In paragraph 53, 4709, Dr. Butler goes on to say, in my opinion, it would be improper to construe IUI to require that a portable device take action responsibly to user interaction. [00:16:12] Speaker 01: Under such a construction, there would be no IUI unless there's an associated portable device to take action responsibly. [00:16:19] Speaker 01: But many IUIs exist in the art with no associated portable device. [00:16:23] Speaker 01: So even their own expert finds such a construction to be improper. [00:16:29] Speaker 03: With regard to- Why is it that encrypted communications, in the phrase the transmission of encrypted communications, could possibly be printed now? [00:16:41] Speaker 01: Because it's nothing more than it's a previously encrypted communication. [00:16:45] Speaker 01: So it's like sending a copy of a book or something. [00:16:51] Speaker 01: It's something that's been previously encrypted. [00:16:54] Speaker 01: It's not encrypted in the steps in the particular claim. [00:16:58] Speaker 01: There's no relationship between that encrypted communication and the devices. [00:17:04] Speaker 01: It's simply taking a communication previously encrypted and transmitting it to who knows where. [00:17:10] Speaker 03: Printed matter usually requires us to look, is it something that's just conveying communicative content? [00:17:18] Speaker 03: For example, there is a case that talks about having marks on measuring cups. [00:17:25] Speaker 03: And the question there was whether those marks on the measuring cups were printed matter or not. [00:17:30] Speaker 03: And then if they were printed matter, to determine whether there was a relationship between that printed matter and the substrate. [00:17:37] Speaker 03: In this case, it's hard to even see how it's printed matter, because it's not a specific communication. [00:17:44] Speaker 03: It's just encrypted communications. [00:17:47] Speaker 03: Same thing with downloading this stuff, downloading program code. [00:17:51] Speaker 03: To say program code is printed matter and thus undeserving of any weight seems wrong under our case law. [00:17:59] Speaker 01: Well, I would disagree, Your Honor. [00:18:02] Speaker 01: cases that have applied printed matter to computer software or computer types of inventions or devices. [00:18:09] Speaker 01: So it's not limited to just printing on paper or on a cup or something. [00:18:15] Speaker 02: Sure, but if I understand your theory of the printed matter doctrine in the computer context, it would hold that any communication going on in a computer network is printed matter. [00:18:28] Speaker 01: Oh, not so, Your Honor. [00:18:29] Speaker 02: If this point right said transmission of emails, would you say that the emails are printed matter? [00:18:39] Speaker 01: If there's no relationship between the... No, no, I'm not talking about step two. [00:18:45] Speaker 02: That's step two. [00:18:46] Speaker 02: I'm just getting to the baseline question of whether it's printed matter at all. [00:18:53] Speaker 01: I would say that the [00:18:55] Speaker 01: The email, yes, it would be printed matter. [00:18:58] Speaker 02: So in your view, any communication, any type of communication from node 1 to node 2 is going to be printed matter. [00:19:09] Speaker 02: And so therefore, it only gets patentable weight if said printed matter, said communication, has some kind of functional relationship to something in the claim. [00:19:20] Speaker 01: Something in the claim? [00:19:20] Speaker 02: Which is something I don't think we've ever said, and I don't think there's anything [00:19:24] Speaker 02: You'd be subjecting millions of millions of computer network claims to the printed matter doctrine. [00:19:34] Speaker 01: A functional relationship with something in the claim or a functional relationship with a device that's recited in the claim. [00:19:44] Speaker 01: In other words, if there was a step in the claim where it recited encrypting and then transmitting, [00:19:52] Speaker 01: And then the encryption process, again, I've leapt onto step two. [00:19:58] Speaker 02: My concern is the fact that there is a communication itself is not content. [00:20:04] Speaker 02: What matters is, what is the content? [00:20:08] Speaker 02: And that's what we've always been looking for, hunting for, in the printed matter cases. [00:20:13] Speaker 02: Correct. [00:20:14] Speaker 02: That's how we know whether there's printed matter. [00:20:15] Speaker 02: For example, if there's a label that provides instructions [00:20:20] Speaker 02: line-by-line instructions on how to administer a particular drug. [00:20:25] Speaker 02: That's printed matter. [00:20:26] Speaker 02: Yes. [00:20:27] Speaker 02: We don't have that kind of situation here. [00:20:30] Speaker 02: I don't know what the closest case you have here that would tell us that the basic recitation of a communication occurring from node 1 and node 2 is printed matter. [00:20:44] Speaker 01: I cannot cite a case on all fours of these facts. [00:20:48] Speaker 01: We did not find a case on all fours of these facts. [00:20:50] Speaker 02: If we were to reverse the rejection of the claims subject to the printed matter doctrine, did you have any alternative theories for those dependent claims? [00:21:05] Speaker 02: Or were all your theories for attacking these particular dependent claims premised on the printed matter doctrine? [00:21:13] Speaker 01: All of our theories were premised on the printed matter doctor. [00:21:16] Speaker 02: Okay, so that would mean if we disagreed with that theory that you proposed that it would lead to a reversal for those claims, not a vacating remand to do further evaluation of claims based on some theory that the board had before but did not address. [00:21:33] Speaker 02: Is that right? [00:21:34] Speaker 01: That's correct, yes. [00:21:36] Speaker 01: I would submit though, Your Honor, that again we're talking about [00:21:39] Speaker 01: This is just a communication like an email, but it's been encrypted. [00:21:43] Speaker 01: So there's no real difference between just taking an email or sending an encrypted copy of that same email. [00:21:50] Speaker 01: That's the same thing. [00:21:51] Speaker 01: And it's printed matter in both situations. [00:21:54] Speaker 01: And I submit that. [00:21:57] Speaker 01: You may not agree. [00:21:59] Speaker 01: But it's still just a communication. [00:22:02] Speaker 01: The fact that it's been encrypted or the fact that something has been done to it [00:22:05] Speaker 01: I don't think changes that into something that's not printed matter. [00:22:09] Speaker 01: And the program code, again, there's nothing in the claim or nothing talked about where you actually execute the code. [00:22:20] Speaker 01: All you're doing, again, it's a message. [00:22:21] Speaker 01: It could be an email. [00:22:23] Speaker 01: In an email, you're taking the code and you're downloading it. [00:22:26] Speaker 01: And then something else happens that's outside the claim. [00:22:29] Speaker 03: I'm familiar with our case law that says that program code [00:22:37] Speaker 03: Yes, under section 112 paragraph 6. [00:22:45] Speaker 01: I would argue, again, it would be structure if in fact, if it had a functional relationship, it was being executed and not just merely being downloaded or sent someplace. [00:23:03] Speaker 01: Communicate. [00:23:04] Speaker 03: When you say program code is printed matter, and what is it communicating? [00:23:12] Speaker 01: Well, it's presumably communicating a computer routine that could be implemented if it were. [00:23:19] Speaker 03: But it's not a specified routine, right? [00:23:21] Speaker 03: Nor is it specified words. [00:23:23] Speaker 03: It's just a computer program. [00:23:26] Speaker 01: Code, yeah. [00:23:27] Speaker 01: Program code. [00:23:28] Speaker 01: Yes, correct. [00:23:30] Speaker 01: Yeah. [00:23:30] Speaker 01: But nothing is being done with that code. [00:23:33] Speaker 01: So there's not any kind of functional relationship between that code, the computer. [00:23:38] Speaker 03: Isn't it being downloaded? [00:23:39] Speaker 03: That's not enough? [00:23:40] Speaker 01: It's a message, just like a message, like an email being downloaded. [00:23:48] Speaker 00: Next issue. [00:23:49] Speaker 01: I'm sorry? [00:23:50] Speaker 00: Next issue. [00:23:51] Speaker 01: Thank you, Your Honor. [00:23:54] Speaker 01: The next issue I'd like to address is the [00:24:00] Speaker 01: issue of whether or not there's one limitation. [00:24:04] Speaker 01: I think I would like to say that if under any construction interactive user interface I believe that Aida anticipates the claims that are being applied to. [00:24:19] Speaker 01: What happens is that a [00:24:27] Speaker 01: a menu or text is brought up with some figures and then the person operating the computer has an opportunity then to select one of those figures, make a choice by entering a number like one, two, or three. [00:24:40] Speaker 01: That then causes a change in the display and then sends, gives the operator another chance to choose another, take another course of action. [00:24:51] Speaker 01: So that there is interaction and this interaction is with [00:24:56] Speaker 01: the device or the figures presented on the screen and their numbers that are associated with each drawing and there is another embodiment which is a cursor that appears and presumably moved by a touchpad or the like and that can actually engage with the structures or with the screen and cause actions to be taken and also cause the screen to change and [00:25:24] Speaker 01: There are examples in AIDA in which both of those functions are performed by the same computer, whether it be the terminal or the portable device. [00:25:35] Speaker 01: So we believe that we've demonstrated anticipation of those claims. [00:25:41] Speaker 02: Is it your view that the board's construction of this user interface is essentially the same as Judge Bryson's construction of this term in the Delaware case? [00:25:57] Speaker 01: It's essentially the same. [00:26:00] Speaker 01: Judge Bryson did reject those other limitations that were... The interface elements? [00:26:07] Speaker 01: the computer, he didn't adopt the provision that required that the display be changed in response to user interaction. [00:26:20] Speaker 01: I wouldn't. [00:26:22] Speaker 02: But that's not part of the board's construction here either. [00:26:25] Speaker 01: Oh, it's not. [00:26:25] Speaker 01: I'm sorry. [00:26:25] Speaker 01: You're talking about the board's construction. [00:26:27] Speaker 01: I apologize. [00:26:28] Speaker 01: My mistake. [00:26:29] Speaker 01: No, that's the difference between Judge Bryson's construction and the one being proposed here. [00:26:36] Speaker 01: It's not identical. [00:26:37] Speaker 01: I would say substantially the same, but it's not identical. [00:26:39] Speaker 01: We could live with either. [00:26:45] Speaker 01: But I do like the board's construction. [00:26:46] Speaker 01: I think it deals with all the issues that are presented. [00:26:49] Speaker 01: And I think they're essentially the same. [00:26:57] Speaker 01: The other thing I'd like to deal with here is [00:27:07] Speaker 01: the second or third program code that provides a node. [00:27:11] Speaker 01: It's been asserted by IOEngine that we waived this argument. [00:27:17] Speaker 01: This is the one in which there's no node actually disclosed in AIDA, but one reading AIDA would understand that there is a node. [00:27:26] Speaker 01: I'm not sure how we could have waived this argument because it's exactly the same argument we're making below as we're making on appeal, and it's exactly the same argument that was adopted by [00:27:35] Speaker 01: the board in its decision. [00:27:37] Speaker 01: So I can't see how this argument was waived in any way. [00:27:41] Speaker 01: And the argument is that it's, and this isn't disputed, that a node is a well-known feature. [00:27:48] Speaker 01: And it's a well-known and necessary condition precedent to communication is taught by AIDA. [00:27:57] Speaker 01: And therefore, AIDA teaches one of the skill in the art. [00:28:01] Speaker 01: There is such a node that enables the communication. [00:28:03] Speaker 01: And it's known that these nodes have software. [00:28:05] Speaker 01: We have substantial evidence, the Geyer testimony, which supports this finding by the board, and we feel that there's been no waiver, and that we've clearly demonstrated that that code, that note is present, and the claims are anticipated. [00:28:25] Speaker 01: We dealt with one combination with Jensky, so I don't have any further, anything further. [00:28:33] Speaker 00: Thank you, counsel. [00:28:34] Speaker 00: We have your argument. [00:28:35] Speaker 00: Thank you. [00:28:36] Speaker 00: Mr. Liebowitz has a little bit of time. [00:28:50] Speaker 02: Mr. Liebowitz, the printed matter claims, are those being asserted in any pending litigation? [00:28:56] Speaker 04: Not currently, Your Honor. [00:28:58] Speaker 02: Do these patents expire next year? [00:29:01] Speaker 04: They do, Your Honor. [00:29:02] Speaker 04: I believe it's in March of next year. [00:29:04] Speaker 02: Yep. [00:29:04] Speaker 02: OK. [00:29:05] Speaker 04: If I can just address a couple of points, Your Honor. [00:29:10] Speaker 04: First, on the waiver point with respect to the construction, I think, again, the cases we cite, the Gauss v. Connare case and the Harris Corp, the Erickson case, make clear that if the construction we're proposing here embodies the same concept, [00:29:24] Speaker 04: as we were telling what we were construing below, there should be no waiver. [00:29:28] Speaker 04: And here, the board even quoted in appendix page 212 in the board's final written decision with respect to the 703 patent, the board even quoted the precise language that we used here, meaning that the device, and this is the quote, the device that executes the code relating to presentation of the IUI is the one that takes action responsibly by responding to the user. [00:29:51] Speaker 04: The board understood that that was what our proposal about our construction embodied below. [00:29:56] Speaker 04: We used the word terminal because the only challenge claims in the challenge claims, that is the terminal. [00:30:02] Speaker 04: So we could shorthand that. [00:30:04] Speaker 04: And in fact, the reason why it came up that way was because the board had first used the word computer, then realized that that term computer is ambiguous and so limited itself, but limited itself only to the portable device. [00:30:19] Speaker 04: And so our arguments were directed to the board's preliminary construction below to explain to the board why the portable device is not the right device in every case. [00:30:31] Speaker 04: And in the challenge claims, it is always the terminal. [00:30:33] Speaker 04: But with respect to a construction that would apply to IUI that goes beyond the challenge claims, it's the same exact concept that we had argued to the board below. [00:30:43] Speaker 04: And the board understood that, as you can see on appendix page 212. [00:30:48] Speaker 04: Excuse me, Your Honor. [00:30:49] Speaker 04: With respect to Your Honor's question about Judge Bryson's construction, we think that that's actually different than what the board did below, but is consistent with what our construction is here in two ways. [00:31:00] Speaker 02: One, in fact, the part- You rejected the idea of modifying the display in response to the user interacting with the user interface, right? [00:31:09] Speaker 02: Correct, Your Honor. [00:31:09] Speaker 02: I think he found that was- That's a key part of your proposed construction here in front of us. [00:31:13] Speaker 04: Well, that's one part of it. [00:31:15] Speaker 04: But I think on the other element of the construction, Judge Bryson wrote that the computer that directly communicates with or affects the communication with the user will likely always have some hand in responsive communications. [00:31:30] Speaker 04: It's on page six of our reply brief. [00:31:32] Speaker 04: I think we cited in the opening brief as well. [00:31:35] Speaker 04: And to that part of the construction and to the fact that Judge Bryson added two way [00:31:43] Speaker 04: to account for the interactivity between the user and the particular device that is being used and interacted with, we think is part of the problem, and part of the problem why the board's construction of interface is so broad that it essentially sweeps in any kind of interface into the definition of interactive user interface. [00:32:03] Speaker 04: Even a punch card interface would satisfy the board's construction of interactive user interface, and no person of ordinary skill in the art in 2004 [00:32:12] Speaker 04: would consider a punch card to be an interactive user interface. [00:32:17] Speaker 04: I think I'm over my time, Your Honor. [00:32:20] Speaker 00: You are. [00:32:21] Speaker 00: I think Aida is part of this case. [00:32:25] Speaker 00: One can say that the lady has finished singing, and our time is up. [00:32:30] Speaker 00: The case is submitted. [00:32:31] Speaker 04: Thank you, Your Honor.