[00:00:00] Speaker 03:
Our next case for argument is 22-1477, Banderi versus Google.

[00:00:06] Speaker 03:
Mr. Lee, please proceed.

[00:00:08] Speaker 01:
Good morning, Your Honors.

[00:00:10] Speaker 01:
May it please the Court, I'm Sean Lee.

[00:00:12] Speaker 01:
I'm appearing today on behalf of Banderi LLC in this appeal from the Patent Office in the Interparty's reexamination.

[00:00:19] Speaker 01:
There are many issues to cover, and so if the panel would prefer to direct me to any particular issues you want me to discuss, first and right away, I'm happy to do so.

[00:00:28] Speaker 01:
If not, I will

[00:00:29] Speaker 01:
proceed with the first disputed claim term, which would be navigation direction.

[00:00:36] Speaker 01:
In the decision on appeals, in this case, the board construed the navigation direction based on its claim in order of your meeting.

[00:00:45] Speaker 01:
In Federi's opinion,

[00:00:46] Speaker 01:
the board failed to consider the term that the navigation directions are based relative to the current or first location.

[00:00:57] Speaker 04:
In response to the argument... Hey, I want to interrupt you for a minute.

[00:01:00] Speaker 04:
Navigation direction.

[00:01:01] Speaker 04:
It was a little bit unclear to me exactly what you thought this term meant.

[00:01:06] Speaker 04:
Right.

[00:01:07] Speaker 04:
Because I think there was some suggestion that

[00:01:10] Speaker 04:
You thought there was no limitation on the number of directions.

[00:01:13] Speaker 04:
Correct.

[00:01:14] Speaker 04:
But then later in your reply brief, you seem to disagree with that.

[00:01:18] Speaker 04:
So could you clarify for me what you think it means?

[00:01:22] Speaker 01:
Right.

[00:01:22] Speaker 01:
So in the specification, we give some examples of navigation directions.

[00:01:25] Speaker 01:
The basic technology is about trying to navigate through the streets of a city.

[00:01:30] Speaker 01:
And so if you are at an intersection in the city, then you can navigate perhaps north, south, and east, west, if the streets are lined according to the perpendicular grid.

[00:01:39] Speaker 01:
If there's a diagonal street that ran from, say, southeast to northwest, then perhaps the navigation direction would be either southeast or northwest.

[00:01:46] Speaker 01:
But it would kind of depend on the context of the situation where the user can navigate to.

[00:01:51] Speaker 01:
If you're in the middle of a block and on a street that ran north-south, the navigation directions could be north or south.

[00:01:57] Speaker 00:
Why didn't you forfeit that by not having appealed it earlier?

[00:02:02] Speaker 01:
Your Honor, the current case is being decided under the Phillips standard.

[00:02:07] Speaker 01:
And the prior case in Vidaria 1 was decided under the broadest reasonable interpretation standard.

[00:02:12] Speaker 01:
These are different claims for certain standards.

[00:02:14] Speaker 01:
And therefore, we believe that the claim is entitled to a new review.

[00:02:19] Speaker 04:
So, okay.

[00:02:21] Speaker 04:
So it was your view.

[00:02:22] Speaker 04:
You didn't challenge navigation direction interpretation in the first appeal because you thought you would lose under BRI?

[00:02:28] Speaker 01:
We thought that we want to focus on the strongest issues.

[00:02:31] Speaker 01:
We thought the most surprising one was that in the first appeal, that moving could be construed as stationary.

[00:02:39] Speaker 01:
So we wanted to focus the briefs on those issues.

[00:02:42] Speaker 04:
But under our law, you have to raise all the issues in the first appeal.

[00:02:48] Speaker 01:
Understood, Your Honor.

[00:02:49] Speaker 04:
And you didn't raise that issue.

[00:02:50] Speaker 04:
Yes.

[00:02:51] Speaker 04:
So I'm having a hard time understanding why you should be able to raise it now.

[00:02:55] Speaker 01:
Right.

[00:02:55] Speaker 01:
And our feeling is that the broadest reasonable interpretation is a very broad interpretation.

[00:03:00] Speaker 01:
And so we had a stronger position, we think, that under the Phillips standard, it would be construed, in our view, properly based on specification.

[00:03:12] Speaker 04:
Could you explain more specifically why changing from broadest reasonable interpretation to Phillips so changes your chances on appeal?

[00:03:23] Speaker 04:
that you should be able to raise this issue that you didn't previously raise?

[00:03:27] Speaker 01:
I think part of the idea is that under the Phillips standard, there is a heightened focus on specification and the teaching of specification.

[00:03:40] Speaker 01:
And we are focusing on the language and specification regarding the embodiments about navigation direction.

[00:03:47] Speaker 01:
There was some reliance in the

[00:03:50] Speaker 01:
in the prior appeal regarding navigation directions and reading and exchanging evidence, such as the prior art references.

[00:04:00] Speaker 03:
I guess I'm sort of where I think that Judge Stoll is.

[00:04:03] Speaker 03:
While even if it isn't somehow waived, because there's a different standard, there is, whether we consider it a law of the case or something like that, you had the opportunity to challenge whether

[00:04:18] Speaker 03:
the definition of location was correct as decided by the board under the VRI standard and you chose not to.

[00:04:25] Speaker 01:
Sorry.

[00:04:25] Speaker 01:
The location or the navigation direction?

[00:04:29] Speaker 03:
Navigation one.

[00:04:30] Speaker 03:
Sorry.

[00:04:30] Speaker 03:
Navigation direction limitation.

[00:04:32] Speaker 03:
You chose not to, correct?

[00:04:34] Speaker 01:
I think so, right.

[00:04:36] Speaker 03:
There has to be a law of the case that applies that stands for the proposition that under the broadest reasonable interpretation

[00:04:44] Speaker 03:
Navigation direction is exactly what the board says it was.

[00:04:48] Speaker 03:
So we have to accept that as a factual predicate.

[00:04:51] Speaker 03:
So what you now have to prove to us is there's daylight between the broadest reasonable interpretation and the Phillips standard.

[00:04:59] Speaker 03:
Because the broadest reasonable interpretation isn't something we can re-question again.

[00:05:03] Speaker 03:
So what you have to show is, OK, look, we couldn't win or we didn't win under broadest reasonable interpretation, but we should win under Phillips because here is the difference.

[00:05:13] Speaker 03:
And I haven't seen you do that.

[00:05:15] Speaker 01:
Right, Your Honor.

[00:05:16] Speaker 01:
And I think neither party has cited cases that show differences between the two standards.

[00:05:21] Speaker 03:
But you're the impoundent.

[00:05:23] Speaker 01:
Yes, Your Honor.

[00:05:25] Speaker 01:
Yes, Your Honor.

[00:05:25] Speaker 01:
And the case that was cited by the public counsel was that in most cases, the constructions are the same.

[00:05:32] Speaker 01:
And we are very confused as to what is excluded by the most, right?

[00:05:35] Speaker 01:
Most to be 51% of cases.

[00:05:37] Speaker 01:
And so I think in our view, it's the focus on specification and showing that

[00:05:43] Speaker 01:
Look, in our discussion of navigation direction, what we mean is you are at a certain, at a first location and you are navigating to some other location because you're walking on the street and you decide, well, I'm going to go east today and see what's out there.

[00:05:56] Speaker 03:
But you could have made those arguments before in the face of the BRI standard and you didn't.

[00:06:02] Speaker 03:
So what makes it such that those arguments would not have applied in the BRI context, but do apply now in the Phillips context?

[00:06:10] Speaker 01:
You and I don't have a good answer for that.

[00:06:12] Speaker 04:
Do you want to move on to another issue?

[00:06:14] Speaker 01:
Yes, please.

[00:06:15] Speaker ?:
Okay.

[00:06:18] Speaker 01:
Um, so I think there was also a challenge to the question of location because location was first within that.

[00:06:25] Speaker 04:
That issue was not even raised before the board, right?

[00:06:28] Speaker 04:
Correct.

[00:06:28] Speaker 04:
Because in the... How can you raise that here before us when the issue wasn't raised before the board?

[00:06:34] Speaker 01:
Your honor, as I recall the record from the 760 re-exam, at very least in the decision on appeal,

[00:06:40] Speaker 01:
the board found that the entire navigation direction limitation, which includes the location limitation, would be construed under the planning order in your meeting, and did not explicitly construed location.

[00:06:52] Speaker 01:
Now, in our request for rehearing on that decision, we raised various disputes regarding construction of navigation direction limitation, and in the board's decision, denied request for rehearing,

[00:07:05] Speaker 01:
They then first included the comment that location should encompass a street or region.

[00:07:10] Speaker 01:
There was no opportunity to dispute the board's instruction on that term on the ward location within the full navigation direction limitation until now.

[00:07:21] Speaker 04:
Did that interpretation come from the petition or anywhere?

[00:07:26] Speaker 01:
I think, as I recall.

[00:07:27] Speaker 04:
Did they know you're suggesting that nobody ever argued that?

[00:07:30] Speaker 01:
I think it was first raised by the board and it's just denial of re-hearing.

[00:07:36] Speaker 01:
That is my recollection of the record.

[00:07:39] Speaker 04:
So even if it was plain and ordinary meaning, meaning that it could be a specific address and house number on a street, or it could be the name of a city, that nobody ever raised that in the record before that time.

[00:07:54] Speaker 01:
Right.

[00:07:55] Speaker 04:
I think our position was that... I thought maybe it was raised, but I'm interested in seeing what

[00:08:01] Speaker 01:
Uh, Google has to say, I guess I may have, um, I may be misrecalling the record, but as far as I understand, we have always argued that a location is, um, a location, like a very specific address or a point.

[00:08:16] Speaker 04:
And I understand you may have, but if Google argued something differently, then you could have been on notice that you needed to raise that as a claim destruction issue that you failed to raise before the board.

[00:08:28] Speaker 04:
Right.

[00:08:29] Speaker 04:
Right.

[00:08:30] Speaker 04:
Okay.

[00:08:34] Speaker 01:
So I guess based on our proposed click instruction of the navigation direction and location, the cited references we believe do not teach the city's limitations.

[00:08:47] Speaker 01:
One of these being the Dykes reference, which discloses a map that has various hotspots that can be chosen by the user.

[00:08:54] Speaker 01:
And so the user can click on one hotspot and see a panorama at that location.

[00:08:58] Speaker 01:
This is not selecting a navigation direction or showing an image based on the navigation direction from a first location relative to that first location.

[00:09:09] Speaker 00:
You're arguing as if.

[00:09:11] Speaker 00:
We were just beginning this whole process.

[00:09:15] Speaker 00:
But the question is whether the board had substantial evidence, which is just a reasonable amount of evidence, that Dykes and Schiffer disclosed navigation direction.

[00:09:28] Speaker 00:
Why don't you address what the board said and point out why you believe there wasn't substantial evidence supporting that.

[00:09:37] Speaker 01:
Right.

[00:09:37] Speaker 01:
I think the board said that some of the arrows in Dykes

[00:09:41] Speaker 01:
disclose the navigation direction.

[00:09:42] Speaker 01:
So there are panoramas that are shown in dykes that have

[00:09:46] Speaker 01:
down pointing arrows and selecting one of those arrows would select another panorama.

[00:09:51] Speaker 01:
Those are the teachings of Dykes.

[00:09:54] Speaker 01:
Now, it is Videri's position that the board was incorrect in saying that choosing one of those arrows is selecting a navigation direction because choosing the arrow in Videri's view directly selects a panorama associated with that arrow and there is no determination of a second location based on the user input.

[00:10:15] Speaker 03:
You want to save the remaining time for rebuttal, Mr. Lee?

[00:10:18] Speaker 02:
We're already there.

[00:10:19] Speaker 02:
Yes, sir.

[00:10:21] Speaker 02:
Good morning, Your Honors, and may it please the court.

[00:10:24] Speaker 02:
David Amelin for Appellee.

[00:10:25] Speaker 02:
Google with me is my colleague, Daniel Silverman.

[00:10:28] Speaker 02:
Unless Your Honors would like me to begin with a different area, I plan to first address forfeiture and law of the case, and then address the navigation limitation and whether Dykes discloses that.

[00:10:39] Speaker 02:
I begin with forfeiture and law of the case because this is not

[00:10:44] Speaker 02:
instance in which it's a simple appeal from a simple board decision.

[00:10:48] Speaker 02:
There have been over 11 years during these four re-exams.

[00:10:51] Speaker 02:
There have been many board decisions, and there has been one prior appeal to this court in which Judge Stahl, Judge Lorry, and Judge Newman addressed some of these issues and weren't permitted to address others because they were forfeited.

[00:11:05] Speaker 02:
Law of the case and forfeiture applies differently to the different claim limitations, so I want to split them up.

[00:11:10] Speaker 02:
I'll first start with law of the case, and that applies to, of course,

[00:11:14] Speaker 02:
the construction of composite image.

[00:11:17] Speaker 02:
Chief Judge Moore, you asked, well, what is the daylight between what was argued before and what was argued now?

[00:11:23] Speaker 02:
Which is the right question, because law of the case is not a strict rule.

[00:11:27] Speaker 02:
It's rather a rule of discretion that this court uses, prompted by the policies of fairness and finality.

[00:11:34] Speaker 02:
Here, there is no daylight.

[00:11:37] Speaker 02:
Nearly the identical claim construction was argued the first time before this court.

[00:11:43] Speaker 02:
under nearly identical arguments.

[00:11:46] Speaker 02:
Made the same arguments about the specification, about importing limitations there from.

[00:11:51] Speaker 02:
They made the same arguments about the claim that they do on appeal.

[00:11:54] Speaker 02:
And during Vidiri 1, this court fully considered all of those arguments and said, under the broadest reasonable interpretation, composite image means X.

[00:12:06] Speaker 02:
The board applying an ordinary meaning reached the exact same conclusion for the exact same reason.

[00:12:14] Speaker 02:
And so when asked the question, well, why doesn't plain ordinary meaning and BRI mean the same thing, counsel said, I don't have an answer.

[00:12:22] Speaker 02:
But the answer is there is no daylight between these terms.

[00:12:25] Speaker 02:
They're exactly the same.

[00:12:28] Speaker 02:
I want to address your honor just two quick decisions before I move on to forfeiture.

[00:12:33] Speaker 02:
And these decisions stand for the point that law of the case does not have to have a one-for-one identity.

[00:12:38] Speaker 02:
Closest enough is good enough because the policy is behind law of the case.

[00:12:43] Speaker 02:
That was the Gindis case that we cited from this court in which there was a difference in procedure.

[00:12:49] Speaker 02:
And the court said that's still good enough.

[00:12:51] Speaker 02:
And another one which we didn't cite, because of course this argument was raised in their reply, is the decision of Ormco Corp against Align Technology.

[00:13:00] Speaker 02:
In that court?

[00:13:00] Speaker 03:
Can you just be clear about something?

[00:13:02] Speaker 03:
Your argument is not that there is never a difference between or can never be a difference between a construction under BRI and a construction under Phillips, is it?

[00:13:12] Speaker 02:
It is not, Your Honor.

[00:13:13] Speaker 03:
Your argument is that in this case, they haven't made any arguments that would justify a differentiation under those two standards.

[00:13:23] Speaker 02:
Yes, Your Honor, and I'll go even a little bit further.

[00:13:24] Speaker 02:
Not only have they said in their previous briefing that there is any daylight between them,

[00:13:29] Speaker 02:
They argue the same construction for the same reason, which of course prevents any daylight because Judge Stahl, Judge Lorry, and Judge Newman already considered those exact arguments in Videre 1.

[00:13:41] Speaker 02:
There's no difference here.

[00:13:42] Speaker 03:
Well, they considered those arguments though under a BRI standard, not under a Phillips standard.

[00:13:47] Speaker 03:
And those two standards could result in a different outcome.

[00:13:51] Speaker 02:
Theoretically, yes.

[00:13:52] Speaker 02:
But here, no, because Vidiri 1 looked at all of the arguments about whether or not the specification disclosed alternative embodiments, whether those embodiments should be imported into the claims, whether dependent claims changed what the independent claim was.

[00:14:08] Speaker 02:
All of the arguments that are presented on this appeal were presented under the previous appeal.

[00:14:12] Speaker 04:
The way I look at it is we could either look at this under the Phillips standard and say, we still think we're right, or maybe more appropriately,

[00:14:22] Speaker 04:
look at law of the case.

[00:14:23] Speaker 04:
But what could they potentially, hypothetically, could they have done here to show that we had to go beyond law of the case and actually look at the claim construction arguments under the Phillips standard?

[00:14:36] Speaker 04:
What, if anything, would have to be shown in your view?

[00:14:39] Speaker 02:
So I'll answer that hypothetical, but I first want to agree with your premise.

[00:14:42] Speaker 02:
I think it's right.

[00:14:43] Speaker 02:
You look first is, is there forfeiture?

[00:14:45] Speaker 02:
If there is forfeiture, you don't even have to address the merits.

[00:14:48] Speaker 02:
Now you address the merits.

[00:14:49] Speaker 02:
If you don't agree, there's forfeiture.

[00:14:50] Speaker 02:
And if you address the merits and you say under PRO, it's the same as BI, it's the same.

[00:14:56] Speaker 00:
What could they have done?

[00:14:58] Speaker 02:
What could they have done is argued, well, under BRI, this particular limitation broadly encompasses blank, whereas plain and ordinary meaning would exclude that.

[00:15:09] Speaker 02:
In other words, the Venn diagram between the two are different.

[00:15:13] Speaker 02:
Here, to Chief Judge Moore's point, they didn't argue there's any daylight between them because they present the same arguments.

[00:15:20] Speaker 02:
Theoretically, a claim could be different, but this is not one of those.

[00:15:25] Speaker 02:
That's law of the case.

[00:15:27] Speaker 02:
I want to talk now about forfeiture.

[00:15:29] Speaker 02:
So law of the case applies to composite image, and that of course applies to three of the claims on appeal.

[00:15:35] Speaker 02:
Forfeiture applies likewise to three of the patents on appeal, but it applies to two of the claim limitation, navigation direction, and arbitrary address.

[00:15:47] Speaker 02:
Here, counsel was asked, well, why didn't you appeal those issues during Vadiri I?

[00:15:53] Speaker 02:
And counsel responded, quote,

[00:15:55] Speaker 02:
They wanted to focus on the strongest issue," end quote.

[00:15:58] Speaker 02:
That's the whole premise of forfeiture.

[00:16:02] Speaker 02:
Attorneys make decisions about what to appeal.

[00:16:04] Speaker 02:
And under this court's decision in Vivant, when they don't appeal certain issues, they forfeit them.

[00:16:12] Speaker 02:
It's a rule of fairness.

[00:16:12] Speaker 02:
It's a rule of efficiency, because otherwise you have what has happened here.

[00:16:16] Speaker 02:
They could have raised those issues during the first appeal.

[00:16:18] Speaker 02:
They didn't.

[00:16:20] Speaker 02:
And now, at the end of this 11-year re-exam process, we're arguing issues that could have been argued earlier.

[00:16:25] Speaker 04:
One of the arguments that was made was that forfeiture would not apply if, in fact, they could show that there's daylight between the BRI interpretation and the Phillips interpretation.

[00:16:40] Speaker 04:
Do you agree with that?

[00:16:42] Speaker 02:
In theory, I would, that if there would be some sort of difference between what they could have appealed and what they're actually appealing.

[00:16:49] Speaker 02:
But again, there was no argument that there is daylight here.

[00:16:52] Speaker 02:
And not only that, I want to point to a couple of places in the record where they did argue what they're arguing on appeal.

[00:16:59] Speaker 02:
So if you look on the 025 re-exam regarding the limitation navigation direction,

[00:17:05] Speaker 02:
They made the same claim construction argument, and they argue that Dykes did not disclose it.

[00:17:11] Speaker 04:
And that is- Are you addressing now specifically what their claim construction was?

[00:17:16] Speaker 04:
Are you trying to show that they did raise it below?

[00:17:18] Speaker 04:
Or what is your point?

[00:17:20] Speaker 02:
The latter, the forfeiture.

[00:17:22] Speaker 04:
Both claim construction- And then what page are you looking at?

[00:17:24] Speaker 04:
So I can follow up.

[00:17:25] Speaker 02:
Yes, Your Honor.

[00:17:26] Speaker 02:
And so just to be clear, what was forfeited is both the claim construction as well as the invalidity argument that Dykes didn't disclose that claim limitation.

[00:17:36] Speaker 02:
In appendix 1584 through 1585 and 1901 through 1904, they raised those claim construction arguments, and they raised the invalidity arguments.

[00:17:48] Speaker 02:
The examiner rejected it in appendix 2042 through 2043 and 2045, which the board affirmed in

[00:17:59] Speaker 02:
21-24 through 21-60, and 26-54 through 26-55.

[00:18:04] Speaker 02:
In other words, the claim construction arguments and the invalidity arguments they make now, they made before the patent office, before the first appeal.

[00:18:15] Speaker 02:
They chose not to appeal them, hence forfeiture.

[00:18:20] Speaker 02:
If we want to go to arbitrary address, the same thing happened.

[00:18:24] Speaker 02:
The Deere could have raised these issues under the first

[00:18:28] Speaker 02:
appeal chose not to, hence forfeiture applies.

[00:18:32] Speaker 02:
And again, directing your honors in the record, Vidiri proposed to the board the same claim construction about unassigned limitation that it proposes here, appendix 739 through 740, and they argued, among others,

[00:18:48] Speaker 02:
that it doesn't disclose, that ye does not disclose the unassigned address.

[00:18:53] Speaker 02:
This is appendix 7052 through 7053.

[00:18:57] Speaker 02:
And then the board rejected that, both the claim construction and the invalidity argument in 7053 through 36 and 7055 through 57.

[00:19:07] Speaker 02:
In other words,

[00:19:10] Speaker 02:
Before you even get to the merits of any of the arguments, you first have to consider law of the case and forfeiture.

[00:19:17] Speaker 02:
Both of these squarely apply here.

[00:19:20] Speaker 02:
They're not binding.

[00:19:21] Speaker 02:
They're rather a rule of discretion here.

[00:19:23] Speaker 02:
There has been no argument that discretion should be exercised because of daylight.

[00:19:27] Speaker 02:
And to the contrary, the policies behind law of the case and forfeiture are on form here.

[00:19:34] Speaker 02:
Unless there's any additional questions, I'll go to the dykes, whether that discloses the navigation direction limitation.

[00:19:43] Speaker 02:
So council argued that dykes does not disclose the navigation direction.

[00:19:48] Speaker 02:
Before we get to the merits of that, I want to make two points.

[00:19:51] Speaker 02:
One, forfeiture.

[00:19:53] Speaker 02:
Your honors don't even have to address that question.

[00:19:55] Speaker 02:
to Judge Laurie's point about substantial evidence.

[00:19:59] Speaker 02:
Here, it's not whether an independent review of whether Dyches discloses it as a question.

[00:20:03] Speaker 02:
It's whether there's substantial evidence to support it.

[00:20:06] Speaker 02:
And if you look at the board's decision, among other places, on Appendix 226,

[00:20:16] Speaker 02:
It detailed an extensive mapping of how Dykes discloses each of the two parts of the navigation direction.

[00:20:24] Speaker 02:
What Vadiri is essentially arguing is each of those limitations in turn.

[00:20:29] Speaker 02:
In other words, it's saying this particular part of the board's decision was wrong and this particular part.

[00:20:34] Speaker 02:
But if you look at what the board did, especially in analyzing figures two and three, it analyzed it as a whole.

[00:20:40] Speaker 02:
Essentially, the whole idea behind how Dykes works is you need to be able to both pan

[00:20:45] Speaker 02:
and select, and it's those combinations of the two that allow you to go from location to location.

[00:20:51] Speaker 02:
The focus here is on what the board did, and the board considered this issue over 11 years in substantial detail, and that decision is entitled to deference.

[00:21:01] Speaker 02:
Unless your honors have any questions about any of the other limitations, I will submit.

[00:21:06] Speaker 03:
Okay, thank you, Tassel.

[00:21:08] Speaker 03:
Mr. Liu, you have some rebuttal time.

[00:21:11] Speaker 01:
Thank you, honors.

[00:21:13] Speaker 01:
So during my opening arguments, I did not get to the point of composite images.

[00:21:18] Speaker 01:
The opposing council did raise the question of whether there was some daylight between the BRI standard and the Phillips standard.

[00:21:26] Speaker 01:
May I raise a response regarding composite images in that regard?

[00:21:29] Speaker 03:
Well, I mean, he brought up composite image and talked about it, so I think he opened the door, so go ahead.

[00:21:33] Speaker 01:
Thank you, Your Honor.

[00:21:34] Speaker 01:
Um, in the board's instructions of composite images, they, uh, in our understanding, use the prior, the prior references such as Yevgeny Olechinsky in his construction of the term composite images.

[00:21:47] Speaker 01:
Um, our view is that under the Phillips standard, we should not be construing the, the composite images in that way.

[00:21:55] Speaker 01:
Um, the reason we believe so is that- Make sure I understand.

[00:21:58] Speaker 04:
They're saying that under

[00:22:00] Speaker 04:
the VRI standard, it's okay to look to the prior art to determine what composite images means, but under Philips it's not.

[00:22:08] Speaker 01:
That is more or less what I'm saying.

[00:22:10] Speaker 04:
I don't know that that's correct.

[00:22:11] Speaker 04:
What law do you have for that?

[00:22:13] Speaker 01:
So under the Barthes reasonable interpretation, extrinsic evidence is allowed as part of the construction standard.

[00:22:18] Speaker 04:
And you're saying under Phillips extrinsic evidence is never allowed?

[00:22:21] Speaker 01:
It's given less weight than it is under the BRI standard is my understanding.

[00:22:25] Speaker 01:
There's a heightened focus on specification under the Phillips standard than there is under the BRI standard.

[00:22:31] Speaker 01:
The weighting of the factors is different.

[00:22:34] Speaker 04:
Do you have any case law to support that?

[00:22:37] Speaker 01:
I have just the language of Phillips that says the specification is key.

[00:22:40] Speaker 01:
and that if there is, I think it's quoted in our briefs, but that... But isn't broadest reasonable interpretation, broadest reasonable interpretation consistent with the specification?

[00:22:51] Speaker 04:
Sorry?

[00:22:51] Speaker 04:
Isn't, don't we understand the broadest reasonable interpretation?

[00:22:54] Speaker 04:
It's not just broadest reasonable interpretation, it's broadest reasonable interpretation in view of the patent specification.

[00:23:01] Speaker 04:
Yes, Your Honor, and I believe that... So that's, patent specification is also important in BRI, and that happens, right?

[00:23:06] Speaker 01:
Yes, Your Honor.

[00:23:07] Speaker 01:
And I think our view is that the board didn't provide enough weight.

[00:23:12] Speaker 01:
We still disagree with the board's decision before, based on the board's reasonable interpretation.

[00:23:18] Speaker 01:
and we just read them again under the Phillips standard.

[00:23:22] Speaker 01:
I think in the board's instruction of composite images, they were reading them to include multiple images placed side by side, and we think that that is an incorrect application of the Phillips standard.

[00:23:34] Speaker 01:
The composite images should be construed based on the specification, as you noted, and in the specification, we construed composite images for

[00:23:44] Speaker 01:
composite images to be construed to mean a continuous image, a single sort of panoramic view, if you will, whereas placing four images side by side that have no relationship with one another as described in the only examples given in Yee, Lechinsky, and the Geospan brochure would be inappropriate.

[00:24:04] Speaker 01:
If your honors have no further questions.

[00:24:06] Speaker 03:
Okay.

[00:24:06] Speaker 03:
Thank you, good counsel.

[00:24:08] Speaker 03:
This case is taken under submission.