[00:00:00] Speaker 00:
Our next case is Omega patents, LLC versus BMW of North America, LLC.

[00:00:08] Speaker 00:
Docket number 22-2012.

[00:00:12] Speaker 00:
Mr. Centuri, Councilor Centuri.

[00:00:15] Speaker 03:
Yes, Your Honor.

[00:00:15] Speaker 00:
Yes.

[00:00:17] Speaker 00:
That's why you just sent everybody ready?

[00:00:19] Speaker 00:
All right, you may go if you want.

[00:00:22] Speaker 03:
May I please report?

[00:00:24] Speaker 03:
Your Honor, we're here because

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The Patent Office took two very different references, elected to put them together.

[00:00:33] Speaker 00:
Can you get a little closer to your mic?

[00:00:36] Speaker 03:
Yes, sir.

[00:00:39] Speaker 03:
We're here before the court because the PTAP aired by combining two references that failed to disclose the claim in mention and that if one were to try to combine them, they actually destroy the operability of those references.

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I do want to focus initially on the references themselves.

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The first of the two references we're talking about is the Hassan reference.

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That reference was directed to remote starting the vehicle in enclosed spaces.

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So this was the idea that the inventor was concerned with making sure that if one were to start the vehicle in a parking structure or something like that,

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there were adequate checks to make sure that there wasn't a buildup of carbon monoxide.

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So there were various sensors, there were actually visual sensors around it, carbon monoxide sensors.

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It was a timely mature that didn't continue to run forever.

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The parties agree that Hassan itself doesn't disclose all of the elements of the flake pattern that's issued in this case.

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In particular, Hassan, although it is a remote starter patent,

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it does not disclose anything about sending a parking brake command on the vehicle's data bus.

[00:01:51] Speaker 00:
So let me see if I get your argument.

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You're arguing that Hassan and Brazil do not teach the limitations in the pen, mainly because if you seek to combine them, you'll result with an element that's inoperable.

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So we actually have two separate points here.

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One, yes, the

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Conditions that are required for the ASAN patent for that remote start system to operate, those conditions are the opposite of those conditions required for the BOSA patent to operate.

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So that is one issue.

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The second issue is that... And that's because safety is a concern here.

[00:02:30] Speaker 03:
Well, there are certainly, each of these patents consider safety.

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The inventories consider safety for various features.

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Just to globally say that safety leads us to put these two disparate references together, we believe it's too generalized and we're essentially invalidating a whole host of vehicle patterns, if that's all it took.

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Everyone wants a safer vehicle, everyone wants more convenient features, all we need to say is what changes would make it safer

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That's really no more than saying it would make the system better.

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I think the court in the active video cases said that's not good enough.

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Where does the inoperability come in?

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When the driver, let's say, starts the car remotely and the car starts up and the climate control kicks in or something, goes and gets in the car, the minute they sit down and try to use the manual key, you're saying that's when everything becomes inoperable?

[00:03:28] Speaker 03:
Generally speaking, yes, Your Honor.

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So someone with a Hassan system can start the vehicle remotely.

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However, in order to actuate a parking brake on reversal, there has to be this imminent start detected, which is movement of the vehicle and occupancy, a key in the ignition.

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Those are all things that terminate the remote start of the Hassan.

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So essentially what you have is

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Yes, you can start the car, but in order to get the parking brake to actuate, you would take steps that would actually terminate starting.

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So you can start the car, and then ultimately the car will be stopped.

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And then a parking brake could be actuated in order to locally start the vehicle.

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Now, I do think that I mentioned earlier that these references are very difficult.

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Your argument may have

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a little bit more force, I think, than what it does, if it directed the argument to a motivation to combine.

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But what you're looking at, you're attacking the references separately as opposed to together.

[00:04:42] Speaker 03:
I don't believe so, Your Honor.

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I mean, we are attacking, we're attacking, we're looking at the references as a whole, and we're attacking the combination of them because the combination of them destroys the operability of the functionality that BMW and the board are trying to merge.

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This Virzl patent is kind of a, it's a quirky patent.

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I still don't exactly understand the perks of it, but essentially this is a patent where

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You go and get in the vehicle and at that point when someone is physically there, the vehicle actuates the parking brake.

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Parking brake's not on the data bus, it's just a direct connect parking brake.

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And part of that Bursle patent was using a secondary power source.

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So rather than using a parking brake that, according to Bursall, could drain the battery while the fitness remains on its own, this is a secondary source for brake.

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And according to Bursall, Bursall believes that rolling away is a concern when somebody's physically in the vehicle.

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I'm not sure I understand that concern, but that was the concern of Bursall.

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So really our contention in terms of the

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in terms of combining these two references is A, that you can't combine them without destroying them.

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And I know that BMW has argued that this case in random tech precludes us from combining it as they claim that we are attacking the references separately.

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But that in random tech decision that BMW relies upon specifically says that you can't merge two, if you're trying to merge two references together, yes, it's improper to attack them separately.

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But if you were trying to merge two paths together in a way that destroys the wrong ability, that's not a way to get to hot Christmas.

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Now, we do also address the motivation to combine, and this really goes to another of the arguments we made.

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There were two experts that submitted declarations in this case.

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BMW's expert was also opposed.

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Their expert claimed that it was well known that rolling away was a problem in the remote start context.

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The problem is that there was no support

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Certainly, he pointed to Bursall, but everybody agrees that wasn't promoted starting the video on that assembly, starting it locally.

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Beyond that, when their expert was deposed, he couldn't cite any industry stats or references or anything that suggested to him and supported the notion in his position that rolling away was his problem.

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So it is, from our perspective, we believe that this was simply conclusory expert testimony

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that the board wholly accepted in terms of filing that this was a problem and in fact the only one to actually identify this to be a problem in respect to remote starting was Mr. Flick when he filed these patents.

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Now there is one other issue that we have raised with the court with regard to these experts and that is the idea that the board reviews its discretion in failing to consider Omega's expert

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Here we have a situation where two different experts have very different testimony.

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BMW's expert says, I'm sure there's a motivation behind because of this rolling away.

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The only thing he can reference is rolling away in the context of local starting and acknowledged in deposition that he wasn't aware of any studies or other support for this position.

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The board would never express reference to Omega's

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expert, other than a footnote number one in the opinion that says both parties submitted expert testimony.

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Why isn't that enough for us to have confidence that they were aware of it clearly and they must have considered it and given your expert's analysis the weight they thought it deserved?

[00:08:44] Speaker 03:
Well, Your Honor, I don't think that that's consistent with this Court's opinions in cases like Henry Lee that require

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a substantive explanation of why the board went the way they went with the evidence.

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Here you have the Berman's proponents of the evidence, and the only two pieces of evidence that seem to be related to motivation combined is two experts.

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One of the boards references half a dozen times and says, we adopt what he says, we like him.

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He has this well-reasoned opinion that found that it's well-known in the remote starting world of rolling away, yet he acknowledged in depth that he didn't have any sources for that.

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On the other hand, we had Mr. McAlzander citing the fact that one of Skilled in the Art couldn't possibly combine these, and he wasn't aware of anyone other than Mr. Flit that recognized rolling away to be a problem.

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The board failed to provide any explanation as to whether one expert's testimony was more than the other.

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And here we are today before this court.

[00:09:46] Speaker 04:
I don't understand that.

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They talked about the expert's opinion that they believe credible and that they adopted.

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What more do they need to do?

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The whole point of the board having to explain its reasoning is for us to be able to review their decision making.

[00:10:01] Speaker 04:
And we know what the basis for their decision is.

[00:10:04] Speaker 04:
It's that they adopted one expert.

[00:10:07] Speaker 04:
Well, it sounds like you're asking us to grade their paper and say they got a B minus on their writing because they didn't fully analyze the issue.

[00:10:16] Speaker 04:
But I mean, as long as they didn't fail on giving a reason, then it's not a procedural error.

[00:10:23] Speaker 03:
Your Honor, I guess I take this court's decision to require more than that in the sense that here the board said we accept BMW's position.

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without any explanation as to why.

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Contrary evidence, the only, really, when you have two pieces of evidence and you have completely contradictory evidence, it's BMW's burden to prove hundreds of the evidence.

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And the board says, yeah, we'll take his guy even though in the depot he said he didn't really know anything.

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I think that's where we are.

[00:10:53] Speaker 00:
But given the way the arguments were made, did the board give us enough by which we can discern with reasonable certainty the path of its reasoning?

[00:11:06] Speaker 03:
Why not?

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We know what their decision is.

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We know what evidence they relied on.

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You're pointing to evidence in the record that detracts from that.

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We can look at it and determine whether their expert is good enough substantial evidence or not.

[00:11:25] Speaker 04:
Whatever reason the board had for disregarding your evidence is kind of irrelevant on appeal because we know what the board's decision is and we're reviewing it for substantial evidence.

[00:11:37] Speaker 03:
Your Honor, without me understanding how the board, why the board discounted certain evidence.

[00:11:42] Speaker 04:
Here's what the board, why the board discounted the evidence.

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That's not a basis for our review.

[00:11:49] Speaker 03:
But how do we do that from my perspective?

[00:11:51] Speaker 04:
Yeah, I know.

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You would like a better opinion.

[00:11:53] Speaker 04:
You didn't get it.

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It doesn't mean that we're going to reverse it to give you a better opinion on a review.

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Our job, the whole point of those cases is if the board has not sufficiently explained its analysis for us to review, then we'll send it back.

[00:12:09] Speaker 04:
But they have.

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You don't like it.

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You wish they would have addressed your

[00:12:14] Speaker 04:
your expert evidence.

[00:12:16] Speaker 04:
Maybe the better course is for them to do it, but what's the legal error that entitles you to a remand?

[00:12:23] Speaker 03:
Respectfully, Your Honor, I think that in this context, I don't know how you get to make a determination as to substantial evidence in the BMW's favor if you don't have any understanding of how the board made an expert.

[00:12:35] Speaker 03:
I understand that the court disagrees with me, but I see my time as expiring.

[00:12:41] Speaker 00:
Okay.

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We'll restore you back to your three minutes.

[00:12:46] Speaker 01:
Councillor spec Okay, you may proceed The patented issue in this case they went for patent is about remote starting a vehicle and it claims four simple steps and

[00:13:10] Speaker 01:
First, receiving a remote start signal.

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Second, activating the climate control system in response to the remote start signal.

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Third, activating the parking brake in response to the remote start signal.

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That is the place that the dispute lies here.

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And then fourth, eventually starting the engine.

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My opposing counsel pointed out that there is no dispute that the primary reference relied on by the petitioner does not disclose activating the parking brake in response to the remote start signal.

[00:13:37] Speaker 01:
That is correct.

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The secondary reference, Bursall, however, does disclose activating a parking brake, albeit in response to a local start signal.

[00:13:46] Speaker 01:
Again, that's been disputed by either side.

[00:13:49] Speaker 01:
The combination the petitioner proposed below, with the board adopted as its own, is taking Hassan's remote start system steps one, two, and four of the four simple steps, focus on the remote start signal, and Bursall's activation of the parking brake in response to a local start signal,

[00:14:08] Speaker 01:
And based on the substantial evidence provided by the petitioner and petitioner's expert, Dr. Eskandarian, concluded that it would have been obvious to activate the parking brake as disclosed by the secondary reference person in response to Hassan's remote start signal in order to meet all four limitations of the claims.

[00:14:28] Speaker 01:
This is a very simple combination, and the dispute here before this court is extremely narrow.

[00:14:33] Speaker 01:
It's a question of substantial evidence,

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Is the board's conclusion that activating a parking brake in response to a low start signal was obvious?

[00:14:43] Speaker 01:
And here we have substantial evidence.

[00:14:46] Speaker 01:
My opposing counsel pointed out that he would like there to be an abuse of discretion or some legal error.

[00:14:52] Speaker 01:
There is not.

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The only question here is, does the board's opinion sufficiently show that substantial evidence weighs in favor of supporting their conclusion?

[00:15:02] Speaker 02:
How can we know that the board adequately considered their expert?

[00:15:08] Speaker 02:
And shouldn't we want to know why they rejected their expert?

[00:15:12] Speaker 01:
Yes, Your Honor, and we do know it is much more than just a single footnote in the opinion, and I want to refer to Appendix Page 27.

[00:15:20] Speaker 01:
So to start, there's much more than just a single footnote.

[00:15:24] Speaker 01:
We have 11 pages of analysis from the Board that appears in Appendix Pages 20 through 31.

[00:15:30] Speaker 01:
In that 11 pages, there are no fewer than 24 citations to the patent owner's papers.

[00:15:36] Speaker 01:
Four citations directed to Mr. McAlisander's report.

[00:15:40] Speaker 01:
I'm sorry, it's three citations to Mr. McAlisander's report.

[00:15:44] Speaker 01:
But every citation the board provided to the patent owner's papers, the patent owner's response, and the patent owner's sub-reply includes a carated portion of Mr. McAlisander's report.

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His report does no more than repeat what's stated in those papers.

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So every time the board cites to the patent owner's response or to the patent owner's sub-reply,

[00:16:05] Speaker 01:
That's also cited and considered in Mr. McAlisander's report.

[00:16:08] Speaker 01:
But I want to give you two specific examples that show beyond any doubt that Mr. McAlisander was fully considered.

[00:16:15] Speaker 01:
So first, on page 27 of the joint appendix, and this comes from the board's final written decision, the board says, Pat Nohmer specifically argues, and here is a quote,

[00:16:27] Speaker 01:
A casita would understand that the driver interested in remote starting of the engine and adjusting the climbing within the vehicle ahead of her arrival in the vehicle as a caisson would not look to a vehicle brake actuation along with local starting of the engine as reversal for additional convenience and user satisfaction.

[00:16:47] Speaker 01:
The board here is quoting directly from Mr. McAlexander's report.

[00:16:51] Speaker 01:
That's exactly the position that you just heard my housing council present here as well.

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The human rights was ignored.

[00:16:57] Speaker 01:
It was not ignored.

[00:16:58] Speaker 01:
It's a direct quote out of Mr. McAlexander's report at paragraph 80, and that's actually from his supplemental report.

[00:17:06] Speaker 01:
There's another direct quote from Mr. McAlexander's report on page 29 of the Joint Appendix.

[00:17:12] Speaker 01:
And this portion of the Joint Appendix is from the final written decision where the board is not just quoting and acknowledging that they've considered the arguments, but actually assessing which side they believe and discrediting Mr. McAlisander in favor of Dr. Eskandarian.

[00:17:28] Speaker 01:
At the bottom of Appendix 29,

[00:17:30] Speaker 01:
There's a section where the board expressly says, we are not persuaded by that number's arguments that Dr. Escobarian's lack of knowledge or studies, substantiating that rolling away, is a natural problem, detracts from his credible testimony.

[00:17:44] Speaker 01:
And they cite here to Mr. McAlexander's report, paragraph 69.

[00:17:49] Speaker 01:
So although not a direct quote, if you go to paragraph 69 of Mr. McAlexander's report, he's saying there that,

[00:17:56] Speaker 01:
Rolling weight is not a natural problem, and there is no benefit to preventing that here.

[00:18:01] Speaker 01:
He is directly contradicting what Dr. Eskandarian says.

[00:18:04] Speaker 01:
This portion proves that the board weighed both sides of the evidence considerably fully and sided with BMW's expert over Mr. McAlezander.

[00:18:15] Speaker 01:
To the question of why the board considered Dr. Eskandarian more credible than Mr. McAlezander, we can dig in even further.

[00:18:23] Speaker 01:
Dr. Eskandarian is clearly the more credible expert here.

[00:18:27] Speaker 01:
Instead of just conclusory testimony that parrots the patent owner's papers, which is what Mr. McAlisand provided, Dr. Eskandarian provided, and as the board stated, a reasoned, well-thought-out opinion that's supported by other evidence beyond just his testimony.

[00:18:43] Speaker 01:
At page 38 of Kelly's brief,

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We lay out four pieces of evidence, and the most important one that I want to point you to that gets to both what's the substance of the disclosure and also why is the board correct that these two would have been combined.

[00:19:00] Speaker 01:
There's a reference to the secondary reference in the combination, the personal reference.

[00:19:07] Speaker 01:
And this quote also appears in the joint appendix at page 2907.

[00:19:12] Speaker 01:
And here, the reference states expressly, Dr. Eskenberry relied on it, and so did the board,

[00:19:18] Speaker 01:
Activating the parking brake ensures safety by avoiding faulty operations and rolling away of the vehicle.

[00:19:26] Speaker 01:
This is expressed teaching, suggestion, and motivation to combine

[00:19:30] Speaker 01:
not simply conclusory testimony like my opposing counsel pointed out was shut down in the active video case.

[00:19:36] Speaker 01:
Here we have evidence of record, indeed evidence from the references that the petitioner relied upon, that proves this combination is not only correct, but that the board has substantial evidence backing its decision.

[00:19:54] Speaker 01:
I want to respond very briefly to my opposing counsel's argument about attacking the references separately.

[00:19:59] Speaker 01:
And they mentioned the Inwai Wintet case.

[00:20:02] Speaker 01:
The Inwai Wintet case has another portion of it.

[00:20:05] Speaker 01:
It's the appellee's position that, yes, they are attacking the references separately, but also that they're advocating for bodily incorporation, which the Patent Office found neither is appropriate.

[00:20:17] Speaker 01:
And the Inwai Wintet case addresses both.

[00:20:20] Speaker 01:
The question here is not, would

[00:20:24] Speaker 01:
would you be able to take the entirety of the Bursar reference and put it into the Hassan reference, which is what my poem is advocating for here and saying that's what the board should have looked to.

[00:20:34] Speaker 01:
That's not the appropriate legal question.

[00:20:37] Speaker 01:
The question is when taking the two references as a whole, which the board did in the 11 pages of analysis that it provided,

[00:20:43] Speaker 01:
Would those references have suggested to a person of ordinary skill in the art that a combination would provide benefits?

[00:20:51] Speaker 01:
Here, we have a precise benefit.

[00:20:52] Speaker 01:
It's not a global safety benefit, like my opponent pointed out.

[00:20:56] Speaker 01:
We have a precise motivation to combine.

[00:20:59] Speaker 01:
It's increasing the safety of the vehicle by preventing rolling away.

[00:21:03] Speaker 01:
And I believe my opposing counsel acknowledged that Bursall says rolling away is a problem.

[00:21:08] Speaker 01:
And the response that he provided is that, yes, it's a problem when you're locally starting the vehicle.

[00:21:13] Speaker 01:
Well, if it's a problem when you're locally starting the vehicle, this is what Dr. Eskandarian outlined, wouldn't it be an even bigger problem if the driver is not in the driver's seat and you're starting the vehicle remotely?

[00:21:25] Speaker 01:
In that case, it is important to provide that safe

[00:21:29] Speaker 01:
and secure starting by securing the parking brake of the vehicle.

[00:21:33] Speaker 01:
That's the motivation that Dr. Eskandarian provided.

[00:21:36] Speaker 01:
Again, page 38 of our brief has additional evidence that supports Dr. Eskandarian besides just his testimony.

[00:21:42] Speaker 01:
And that was the correct decision that's indisputably supported in the record.

[00:21:58] Speaker 01:
That Omega disagrees with the board's adoption of BMW's analysis over its own does not establish that the board ignored Omega's arguments about the evidence and analysis.

[00:22:09] Speaker 01:
And I've got a quote from a case, it's the Inland Invasive case, cited on page 50 and 51 of our brief, 842, F3, 1376.

[00:22:17] Speaker 01:
The quote comes from pages 1382 and 83.

[00:22:22] Speaker 01:
We do not require perfect explanations, and we will uphold the decision of less than ideal clarity if the agency's path may be reasonably discerned.

[00:22:31] Speaker 01:
I believe that's the language you were quoting in one of your questions, Judge, right then, as well.

[00:22:36] Speaker 01:
Here there can be no question that the agency's path, PTAT's decision, and why it reached that decision, can not just be reasonably discerned based on imperfect explanations, but they provided a perfect explanation.

[00:22:48] Speaker 01:
If we're reading papers, this is not a B minus or a C,

[00:22:52] Speaker 01:
This is a solid A-plus paper with 11 pages of analysis and a mountain of evidence that they rely upon.

[00:22:58] Speaker 01:
For those reasons, we would ask this Court to affirm the PTAP's decision, and if there are no further questions, Your Honors, I will be able to remainder of my time.

[00:23:07] Speaker 00:
Thank you.

[00:23:12] Speaker 00:
Senator, you're back to three minutes.

[00:23:15] Speaker 03:
Yes, Your Honor.

[00:23:16] Speaker 03:
Thank you.

[00:23:18] Speaker 03:
First, I want to point out that

[00:23:19] Speaker 03:
All of these references are not to Mr. McGowan's hand.

[00:23:22] Speaker 03:
There are two patent office papers, which then put note to Mr. McAlisander's.

[00:23:28] Speaker 03:
But I think the bigger point here is the question of rolling away.

[00:23:36] Speaker 03:
And my opposing counsel is rightly acknowledged.

[00:23:39] Speaker 03:
Bursall says rolling away is a problem when somebody's in the car, presumably because when you go to start a manual transmission car, you have to put the clutch in and it rolls.

[00:23:47] Speaker 03:
That's why he needs to be there.

[00:23:49] Speaker 03:
Nothing in the references said, nothing that their expert could come up with suggested that rolling away was a problem in the context of remote starting.

[00:23:59] Speaker 03:
These are two very different operations of the vehicle with different concerns.

[00:24:04] Speaker 03:
I think that in their moving papers, or in the briefs, they referenced the fact that my client had a number of other remote start packs that referenced the fact that both

[00:24:13] Speaker 00:
Wasn't the whole issue of rolling away and remotely starting a car and having that car take off on its own, wasn't that a concern that was pretty prevalent in the field of art?

[00:24:27] Speaker 03:
If it is, Your Honor, there's no record evidence of it other than the BMW's experts saying it, but they've been able to not able to identify a single support for that statement.

[00:24:37] Speaker 03:
And I think that's our primary point here is that

[00:24:40] Speaker 03:
Sure, we can point to, gee, it would be safer if you do this.

[00:24:43] Speaker 03:
There's lots of things that might make a vehicle safer.

[00:24:46] Speaker 03:
But that doesn't necessarily lead you to the solution of the Flick patent unless you had the Flick patent in hand and used hindsight reconstruction to get there.

[00:24:57] Speaker 03:
Your Honor, if the Court's have no further questions, I'll see you the rest of the time.

[00:25:01] Speaker 00:
Seeing none, we thank you.

[00:25:02] Speaker 00:
We thank all the parties for the argument this morning.

[00:25:06] Speaker 00:
All cases are taken under advisement, and this Court stands in recess.