[00:00:00] Speaker 00: The first argued case this morning will be Appel and Al v. Gesture, 2023-15-01 and 15-54. [00:00:09] Speaker 00: Mr. Miller. [00:00:12] Speaker 00: Thank you. [00:00:16] Speaker 03: Good morning. [00:00:17] Speaker 03: May it please the Court? [00:00:18] Speaker 03: The board correctly struck down the majority of the 949 patent claims, but it incorrectly upheld the dependent claims for 11 and 18. [00:00:28] Speaker 03: All we're talking about here, the sole basis on which these three dependent claims were upheld, is a trivial claim limitation requiring the sensor and the camera to be fixed [00:00:38] Speaker 03: in the claim device relative to each other. [00:00:41] Speaker 03: This fixed limitation is both obvious over and inherent in Numasaki. [00:00:47] Speaker 03: There's no dispute that the purpose of Numasaki's fifth embodiment is to extract only its sensor and camera's common output, and that they have common output if and only if they have and maintain overlapping fields of view. [00:01:01] Speaker 02: I'm curious that you just mentioned inherency, because I thought you talked repeatedly about how you didn't make an inherency argument to the board, and the board was improper to go beyond regular obviousness and look at inherency. [00:01:17] Speaker 02: Why are you arguing inherency now? [00:01:20] Speaker 03: We think the proper analysis is obviousness, but we think we can meet both the lower standard of obviousness and the higher standard of inherency, and that's why we argued in our brief that as to the excluded reply material, even under an inherency analysis, it would be material because we think it can show inherency. [00:01:39] Speaker 03: So we're merely arguing that we would win under both standards. [00:01:43] Speaker 02: So can you just, as far as I can tell, I'm just going to look at claim four because I think it is just as representative as the other two, right? [00:01:51] Speaker 02: One, in your petition under the fixed portion, you have basically two sentences. [00:02:02] Speaker 02: How do those, those two sentences are pretty big too, aren't they? [00:02:06] Speaker 02: They don't even, [00:02:08] Speaker 02: Unless I'm missing something, they don't even use the word fixed in the explanation of why these references show the sensor being fixed in relation to the camera. [00:02:23] Speaker 02: I understand that your expert came in and later explained why that's what this meant, but don't you have to do a little bit more for the board to understand your argument? [00:02:34] Speaker 03: So I agree that we could have been more explicit, but I think fairly read. [00:02:39] Speaker 03: We did put obviousness of this claim limitation at issue. [00:02:41] Speaker 03: If you look at appendix 156, where claim four is discussed, this is the passage you're discussing. [00:02:48] Speaker 03: It starts by referencing back to its prior discussion of limitation 1A, which is the forward-facing portion limitation. [00:02:59] Speaker 03: So it's incorporating that discussion. [00:03:01] Speaker 03: And then it mentions that it calls out here specifically that they have overlapping fields of view, which is also an integral part of that prior discussion. [00:03:09] Speaker 03: Does any of that prior discussion note that they're fixed? [00:03:12] Speaker 03: It doesn't use the word fixed, but it fairly puts it at issue. [00:03:15] Speaker 03: I think if you look at appendix 146, this is... [00:03:18] Speaker 03: perhaps the critical part of that. [00:03:21] Speaker 03: At the top of the page, it says that the two outputs must have overlapping fields of view for one to define what is extracted from the other. [00:03:30] Speaker 03: So must is conveying fixedness. [00:03:33] Speaker 03: It must, it's not that it's incidental that they have overlapping fields of view or that they can shift in and out. [00:03:37] Speaker 03: They must have overlapping fields of view. [00:03:40] Speaker 03: And then there's that image from figure 48 showing the complete superimposition of the two outputs, [00:03:47] Speaker 02: Could it be overlapping necessarily lead to fixed? [00:03:53] Speaker 02: Couldn't it be overlapping in different degrees but not necessarily fixed? [00:03:58] Speaker 03: So I think you are getting at Gesture Technology's expert in its deposition. [00:04:05] Speaker 03: He conceded at 18.0, that's the appendix 18.09, that it needs to be, there needs to be a maintenance of overlapping fields of view. [00:04:14] Speaker 03: So he concedes that point, but then he says that you don't have to have complete overlap, you could have some overlap. [00:04:22] Speaker 03: So I think there's two points that are important here. [00:04:25] Speaker 03: First it depends on the framework. [00:04:27] Speaker 03: If we're talking about obviousness, that testimony doesn't matter because he conceded that [00:04:32] Speaker 03: Fixing it would ensure the purpose of the invention, and it just falls under the Google case. [00:04:37] Speaker 03: This is just a readily achievable way of realizing the goal of the reference. [00:04:42] Speaker 03: But if we're on an inherently standard, I think what you mentioned is relevant, but it just creates two factual questions that the board needs to resolve that it didn't resolve. [00:04:52] Speaker 03: First, the board never made a fact-finding to credit [00:04:57] Speaker 03: one expert over the other. [00:04:58] Speaker 03: Our expert said the opposite. [00:04:59] Speaker 03: He said that it needs to have complete overlap. [00:05:02] Speaker 03: It wouldn't work otherwise. [00:05:03] Speaker 03: Gesture Technology said it could be partial overlap. [00:05:05] Speaker 03: There was no finding as to who was correct about that to achieve the purpose, so that at a minimum would require a vacater and remand for the board under an inherency analysis to consider. [00:05:15] Speaker 03: The second thing is fixed wasn't construed, and the plain and ordinary meaning of fixed [00:05:22] Speaker 03: they need to decide whether that encompasses what gesture technologies expert testified about. [00:05:28] Speaker 02: How much discretion does the board get on interpreting the petition and what it raises sufficiently? [00:05:36] Speaker 02: What standard of review do we apply their decision on that? [00:05:39] Speaker 03: So I think the core photonics case that this court issued recently had cited in our response reply brief sort of walks through the standards here. [00:05:48] Speaker 03: It talks about abuse of discretion as to evaluate whether an argument is responsive to another side's argument, but it talks about a de novo standard [00:06:00] Speaker 03: when it's purely trying, when the court is assessing whether there's just a new ground being raised that wasn't in the petition. [00:06:08] Speaker 03: So I don't think this court has squarely confronted the issue, but it has suggested that this court... Well, on the responsiveness stuff, I think you're clearly, I mean... [00:06:16] Speaker 02: It seems like, to the extent this raise the fix thing, your argument, your expert is just further responding to it. [00:06:25] Speaker 02: But I'm just curious as to what standard of review do we apply to the board's determination that you actually didn't raise [00:06:33] Speaker 02: that argument sufficiently for him to address it in these two sentences. [00:06:37] Speaker 03: So I don't think this court has answered that question. [00:06:40] Speaker 03: But even if it's an abusive discretion standard, we went under that. [00:06:44] Speaker 03: Because, again, I think if you look at 146, [00:06:48] Speaker 03: So first looking at Appendix 34, which is where the board sets forth what it says, it just considers the mere fact that they're overlapping. [00:06:57] Speaker 03: It doesn't consider the purpose at all. [00:07:01] Speaker 03: And then it goes on, Appendix 35, to say, [00:07:05] Speaker 03: that the portions of the petition cited in the reply discuss overlapping fields of view but do not assert that overlapping fields of view require the structures to be fixed with respect to one another. [00:07:16] Speaker 03: That's not correct. [00:07:17] Speaker 03: If you look at 146, the sentence I read to you, the two outputs must have overlapping fields of view for one to define what is extracted from the other. [00:07:27] Speaker 01: So let me tell you how I understand this. [00:07:30] Speaker 01: And there's a question of whether this has been sufficiently articulated before the board. [00:07:35] Speaker 01: But as I understand Numizaki, it takes these photographs 30 times a second, right? [00:07:42] Speaker 01: So if you have to have overlapping fields of view, which everybody agrees, it would seem as though the two cameras would have to be fixed during the period of the photography. [00:07:54] Speaker 01: You can't change them relative to each other within that very short time period that's [00:08:03] Speaker 01: involved in taking the photographs. [00:08:05] Speaker 01: And nobody asked for a construction, so it would appear that having them fixed in relation to each other in the period that the photographs are taking place is all that's required to be fixed. [00:08:21] Speaker 01: So their expert testified that fixed would mean, as I understand it, [00:08:32] Speaker 01: they don't move in relation to each other during the process of photography. [00:08:37] Speaker 01: So isn't it clear from Numizaki that the two cameras are not moving relative to each other during the period of photography? [00:08:45] Speaker 01: It seems to follow necessarily. [00:08:47] Speaker 01: Now, did you make that argument sufficiently? [00:08:50] Speaker 01: That's another question. [00:08:52] Speaker 03: So, uh, I agree with you on what Numisati discloses. [00:08:56] Speaker 03: There's no, all disclosure points to it being fixed for that period and really any period, because again, they have to be together for them to operate. [00:09:05] Speaker 03: So even when it takes a separate picture, you know, they always need to be together. [00:09:09] Speaker 01: Well, if the pictures were five minutes apart, then the cameras could move as long as they had a shared overlap. [00:09:17] Speaker 01: But it seems, given the speed with which this happens, that there's no opportunity to move the cameras. [00:09:27] Speaker 01: And if they did move, that would defeat the purpose of what's trying to be achieved. [00:09:32] Speaker 03: I understand what you're saying. [00:09:33] Speaker 03: And I think our expert provided evidence further to sort of permanent fixedness. [00:09:37] Speaker 03: But I agree that even that minimal amount is sufficient. [00:09:41] Speaker 03: And I do think we raised it in our petition. [00:09:43] Speaker 03: Again, this challenge was made under the header of obviousness. [00:09:49] Speaker 03: At 156, we pointed to the overlapping fields of view, and we referenced back to this discussion at 146. [00:09:56] Speaker 03: I think that fairly raises that fixedness is disclosed by the overlapping fields of view and the need for that, those overlapping fields of view. [00:10:06] Speaker 03: to achieve the purpose of the invention. [00:10:09] Speaker 03: And to conclude otherwise would to parse the petition to find a filter. [00:10:15] Speaker 03: But I think also I want to be clear that it's not clear what the board really did here in its analysis. [00:10:22] Speaker 03: The board didn't say exactly what it thought. [00:10:25] Speaker 03: It just said that the petition does not establish sufficiently. [00:10:29] Speaker 03: that Numizaki's unit 102 and camera 351 are fixed relative to one another. [00:10:35] Speaker 03: And all it rested on for that conclusion is, without more, the mere fact that unit 102 and camera 351 are arranged in parallel and have overlapping fields of view does not establish that the structures are fixed. [00:10:47] Speaker 03: So even if the board thought the petition wasn't sufficient to prove the point, [00:10:53] Speaker 03: That's not enough, because on a reply you can come forward with more evidence. [00:10:56] Speaker 03: So it didn't say that we put forward an insufficient theory such that we couldn't prove it later by supplementing with evidence. [00:11:02] Speaker 03: It didn't say that. [00:11:03] Speaker 03: It just said these two mere facts aren't enough. [00:11:07] Speaker 03: That's not all we asserted in our petition, and certainly at the reply stage we're able to come forward with more evidence to crystallize and confirm our theory. [00:11:14] Speaker 03: And we did. [00:11:15] Speaker 03: We had expert testimony from our expert. [00:11:17] Speaker 03: We had expert testimony from gesture technologies expert, which the board didn't weigh or consider at all. [00:11:22] Speaker 03: So at the bare minimum, there needs to be vacant or remand for clarity on what the board thought it was doing and to make the relevant determinations. [00:11:31] Speaker 03: Certainly, from the land of obviousness, I think, as a matter of law, there should just be a reversal. [00:11:36] Speaker 03: Under the Google case and the Western Union case we saw in our response reply brief, I think this is just a clear case of obviousness. [00:11:47] Speaker 03: You have a readily achievable option. [00:11:49] Speaker 03: Nobody's disputing that fixedness was known. [00:11:52] Speaker 03: I mean, if you look at all the figures in Numizaki from [00:11:55] Speaker 03: 74 onwards, these are all sort of fixed components in these electronic devices, at least from the diagrams. [00:12:03] Speaker 03: As Judge Dyke said, just the functionality and the way this works, it doesn't make sense to think of it as anything other than fixed. [00:12:09] Speaker 03: So there's both expert testimony, there's new Mazzotti's disclosures that make it obvious, and that was put forward in the petition and further developed on reply. [00:12:19] Speaker 00: You're into your battle term. [00:12:21] Speaker 00: You can continue or save it. [00:12:22] Speaker 03: I will reserve the rest of my time for a battle. [00:12:25] Speaker 00: Thank you. [00:12:26] Speaker 00: Thank you. [00:12:26] Speaker 00: Mr. Whippen and Sadler. [00:12:47] Speaker 04: Morning, Your Honors. [00:12:48] Speaker 01: Morning, please, Court. [00:12:50] Speaker 01: Did you agree that the cameras are fixed in relation to each other if they're fixed during the period that the photographs are being taken, the two photographs are being taken? [00:13:03] Speaker 01: No, Your Honor, and I was actually planning on addressing that first. [00:13:05] Speaker 01: I do not. [00:13:06] Speaker 04: Why do you? [00:13:07] Speaker 04: So there's really two reasons. [00:13:10] Speaker 04: The first being that when we look at claim four, for example, of the 949 patent, it's a device claim. [00:13:17] Speaker 04: And so I might agree if that was a method claim and it was discussing a specific moment in time or when a specific step was being performed. [00:13:25] Speaker 04: But the structure of claim four, which depends from claim one, is a device claim. [00:13:30] Speaker 04: So it's describing a portable device. [00:13:33] Speaker 04: It's describing the camera and the electro-optical sensor in relationship to each other and how they are part of a forward-facing housing. [00:13:44] Speaker 04: And there's an additional reason to your point about the sort of timing mechanism, if you will, as to how the components work for detecting movement. [00:13:55] Speaker 04: There are two cameras or electro-optical sensors required, sensors in Umazaki. [00:14:01] Speaker 04: One is active when the light is on, and then that one shuts off, and a second unit detects when the light is off. [00:14:09] Speaker 04: Those images are subtracted from each other. [00:14:12] Speaker 04: But that is not what is actually being pointed to here for the alleged invalidating disclosure. [00:14:18] Speaker 04: There's actually a third camera. [00:14:20] Speaker 04: And so what in the proposed combination here, what's happening is those two sensors are operating to detect gestures. [00:14:28] Speaker 04: Then there's a separate camera that will actually capture images. [00:14:33] Speaker 04: And so the issue is that although [00:14:37] Speaker 04: The claim requires that the separate camera be fixed in relation. [00:14:41] Speaker 04: And so there's certainly no disclosure there. [00:14:44] Speaker 04: And there's no need for a fixed overlap between the two. [00:14:47] Speaker 01: I'm sorry. [00:14:48] Speaker 01: I'm not following you. [00:14:50] Speaker 01: We have two cameras in the Misaki. [00:14:52] Speaker 01: You say there are three. [00:14:54] Speaker 01: If the two that are taking the photographs are fixed in relation to each other, that would satisfy the claim of the patient, right? [00:15:01] Speaker 04: No, Your Honor, because in Numizaki, two are detecting a gesture. [00:15:05] Speaker 04: And then it's the third camera that's actually supposed to be capturing the image. [00:15:10] Speaker 04: So in terms of, just to give some context, in the claim, there needs to be an electro-optical sensor. [00:15:23] Speaker 04: And that's the device that's detecting the image. [00:15:26] Speaker 04: Then there's a separate digital camera. [00:15:30] Speaker 04: In Numizaki, [00:15:32] Speaker 04: what Apple has pointed to for the electro-optical sensor, something called Reflected Light Extraction Unit 102. [00:15:39] Speaker 04: And there are actually two of those, where one is taking the image with the light on, and one is taking the image with the light off. [00:15:46] Speaker 04: Those are not used for capturing the actual picture as required by the claim. [00:15:51] Speaker 01: Why, I'm not understanding why, if those two are fixed in relation to each other, why isn't that [00:15:57] Speaker 04: Because Apple pointed to something separate for the digital camera, your honor. [00:16:02] Speaker 04: Apple pointed to something called visible light photo detection array 351. [00:16:07] Speaker 02: So that has to be fixed in relation to at least one of those other sensors. [00:16:13] Speaker 04: Correct, your honor. [00:16:14] Speaker 01: Correct, your honor. [00:16:16] Speaker 01: And the issue there is... Well, isn't this all happening within the split second, even if you say that the third camera has to be fixed? [00:16:28] Speaker 04: It still comes back to the structure of claim one, which is essentially that. [00:16:32] Speaker 02: I don't understand what the point of all of this is, though, because admittedly what they said in their petition is very fair. [00:16:41] Speaker 02: But they say that the photo detection array, which is what you say is the camera, and this light extracted units, which is what they're mapping the sensors to, are arranged in parallel. [00:16:54] Speaker 02: So they're saying that those are fixed. [00:16:59] Speaker 02: Now you're arguing on the merits that Namazaki doesn't teach it the way the patent describes it. [00:17:04] Speaker 02: But the problem that we have here isn't that Namazaki doesn't teach it, is that the board didn't hear all of their evidence because they didn't consider the supplemental expert report. [00:17:17] Speaker 02: So your honor, I think there's two, maybe something. [00:17:20] Speaker 02: I guess, I mean, are you just jumping to the merits about why this wouldn't be obvious, even if the board had considered it? [00:17:27] Speaker 02: Or because I'm confused why you started here. [00:17:30] Speaker 02: I mean, I think that the first point is, was the board obligated to consider the additional evidence submitted on the reply? [00:17:40] Speaker 02: And the board said no. [00:17:41] Speaker 02: And why is that correct? [00:17:44] Speaker 04: Did not read the final written decision as expressive saying no we did not consider it to the contrary I believe that the board to consider it because it listed it and then further down the decision said That the evidence simply wasn't sufficient And the board was not required to let's take a step back and [00:18:04] Speaker 04: One of the points was whether or not the use of the word parallel in Numizaki actually meant that those devices are sitting there overlapping. [00:18:14] Speaker 01: Well, where does the board consider that question? [00:18:28] Speaker 04: It begins on Appendix 33, Your Honor, where the board starts with the decision on institution. [00:18:34] Speaker 04: And they do not agree that being arranged in parallel necessarily means that the two units are fixed relative to each other. [00:18:40] Speaker 01: Where does that cut down to 33 or 34? [00:18:45] Speaker 04: 33, Your Honor. [00:18:46] Speaker 04: It's the first full paragraph. [00:18:50] Speaker 04: It starts out there. [00:18:50] Speaker 04: Further down the paragraph, the board notes our argument that being arranged in parallel would not necessarily mean that they are fixed relative to each other. [00:19:05] Speaker 01: There's discussion of the statement of the patent on the party. [00:19:09] Speaker 01: Where do they deal with it? [00:19:13] Speaker 02: I mean, at the bottom of 34, they referenced Dr. Bederson's analysis and interpretation, but complained that the petition didn't reference it. [00:19:26] Speaker 02: And they don't really analyze that. [00:19:29] Speaker 02: I read this, at least that paragraph, as saying we're not going to consider this because it wasn't sufficiently explained at the petition. [00:19:36] Speaker 02: But that's the way I'm reading it. [00:19:39] Speaker 02: And I think that's there because the petition sufficiently raises the argument and doesn't it have to go back. [00:19:45] Speaker 04: No, Your Honor. [00:19:46] Speaker 04: The petition never raised any expert testimony. [00:19:50] Speaker 04: It did not say. [00:19:51] Speaker 02: The deed doesn't have to raise the expert testimony, does it, under our precedent? [00:19:55] Speaker 02: This is not true. [00:19:56] Speaker 02: It raises the argument and gives you the obviousness combination, which they didn't do the best job of. [00:20:05] Speaker 02: Let's assume they did a barely sufficient job. [00:20:08] Speaker 02: You're allowed to come back in your reply brief, [00:20:14] Speaker 02: but additional evidence. [00:20:16] Speaker 02: Isn't that what this is? [00:20:17] Speaker 02: It's additional explanation of the ground. [00:20:22] Speaker 04: It's not additional explanation. [00:20:23] Speaker 04: It's the first time that Apple ever introduced any of that evidence. [00:20:28] Speaker 04: And the board's procedures say that the board may disregard evidence that's untimely, particularly evidence... Where did the board say it was disregarding it because it was untimely? [00:20:38] Speaker 04: It does not expressly say that. [00:20:41] Speaker 02: So they didn't disregard it because it was untimely? [00:20:52] Speaker 02: evidence in support of the grounds of the petition, as long as you had a sufficient opportunity to respond to it. [00:21:00] Speaker 02: Did you submit a sir reply in this case? [00:21:02] Speaker 00: Yes. [00:21:04] Speaker 02: Did you address the expert supplemental declaration in your sir reply? [00:21:09] Speaker 02: Yes. [00:21:10] Speaker 02: So how were you harmed? [00:21:13] Speaker 02: Why didn't the board address this? [00:21:16] Speaker 04: We weren't harmed because it was, frankly, an argument that was overcome. [00:21:22] Speaker 04: and discuss. [00:21:24] Speaker 02: You on the merits think you win. [00:21:26] Speaker 02: But the board didn't address his arguments. [00:21:28] Speaker 02: There are arguments on the merits about his supplemental declaration. [00:21:34] Speaker 04: Again, you're on a disability because the board identified that as some of the evidence considered. [00:21:39] Speaker 04: And then specifically, the last full paragraph on Appendix 34 [00:21:44] Speaker 04: The board is saying petition does not establish sufficiently. [00:21:48] Speaker 04: And I interpret that as the evidence. [00:21:52] Speaker 04: They're actually weighing the evidence of supposed obviousness here after identifying all the competing evidence after a substantial discussion of the evidence during the oral hearing. [00:22:05] Speaker 02: How do you read the final sentence at the paragraph? [00:22:09] Speaker 02: It's hard to see. [00:22:09] Speaker 02: It does not reference it. [00:22:29] Speaker 02: I mean, if that's wrong, I mean, how would you interpret that sentence? [00:22:35] Speaker 02: I don't see any other way to interpret it. [00:22:37] Speaker 04: Am I wrong? [00:22:38] Speaker 04: I think it's an add-on to the first sentence, and as well can be interpreted as them saying, we've disregarded, potentially, if the board did not consider it, it can also be read as, we didn't consider it because it wasn't in the petition, so it's not timely. [00:22:58] Speaker 04: The board's procedures say that they can do that, particularly with evidence that could have been raised in the petition, which it should have been to establish Apple's case of obviousness. [00:23:07] Speaker 04: There's nothing that prevented Apple from putting in expert testimony. [00:23:10] Speaker 04: They put in a 55-page declaration with the petition that covered pretty much every limitation except for [00:23:18] Speaker 04: fixed limitation in Claims 411 and 18? [00:23:20] Speaker 02: If they said it is untimely, then we'd be reviewing it as untimely under an abuse of discretion standard. [00:23:27] Speaker 02: And they would have had to explain why the untimeliness couldn't be excused because you've got to submit a cert reply and got to address it as an oral argument. [00:23:37] Speaker 02: And maybe it wouldn't be an abuse of discretion. [00:23:39] Speaker 02: But we don't have anything to review on that ground. [00:23:43] Speaker 04: There's also just simply substantial evidence to support the position that they are not fixed relative to each other. [00:23:51] Speaker 04: And that's how a person with an ordinary skill in the art would have understood it. [00:24:03] Speaker 01: So why do you think that showing that the cameras [00:24:09] Speaker 01: in the Masaki are arranged in parallel doesn't show that they're fixed. [00:24:14] Speaker 01: Why is that? [00:24:16] Speaker 04: And if we go to figure 46, it's a block diagram. [00:24:20] Speaker 04: So as a starting point, it's structural. [00:24:22] Speaker 04: It's not structural, it's functional. [00:24:25] Speaker 04: In addition, when we look at figure 46 in the corresponding text, it's talking about timing. [00:24:34] Speaker 04: The figure itself has timing coming into the two [00:24:39] Speaker 04: Sorry, these terms here. [00:24:40] Speaker 01: What page is 46 on? [00:24:42] Speaker 04: Fig. [00:24:43] Speaker 04: 46 is Appendix 883, Your Honor. [00:24:47] Speaker 04: It's a block diagram showing function, and each of the two reflected light extraction units shows timing coming in. [00:24:56] Speaker 04: And so there, what it means, or sorry, the two units show timing coming in. [00:25:02] Speaker 04: So there, what parallel means is that they're actually operating at the same time, not in serial, where one would be operational and the other wouldn't be. [00:25:10] Speaker 01: Not physically located in parallel? [00:25:13] Speaker 01: Correct. [00:25:16] Speaker 04: And even if they were in parallel, that wouldn't necessarily mean that they are fixed anyway. [00:25:22] Speaker 00: Counsel, you want to save some time for rebuttal and the cross appeal. [00:25:28] Speaker 00: You can continue. [00:25:30] Speaker 00: And of course, if you save it, you may not get to use it if there isn't anything to rebut. [00:25:36] Speaker 00: So I leave it to you. [00:25:38] Speaker 04: I have nothing further unless the panel has any further questions. [00:25:41] Speaker 00: We will save it for your cross appeal if there's something to cross appeal. [00:25:45] Speaker 00: Thank you. [00:26:06] Speaker 03: So thank you, Your Honor. [00:26:07] Speaker 03: The Council conceded that the Board didn't actually exclude the evidence or argument here before you right now, but also their brief says that [00:26:20] Speaker 03: page 31, the board never ruled that any of petitioners' arguments should be disregarded for being untimely. [00:26:26] Speaker 03: And at page 32, the board never ruled that the arguments contained impermissible new matter. [00:26:31] Speaker 03: So they have quaved that position, which I don't think is reflected in the decision either. [00:26:37] Speaker 02: So do we even have to decide whether the petition erases or not? [00:26:42] Speaker 02: I mean, this board's decision on this point is very fuzzy to me. [00:26:45] Speaker 02: But if we agree with what I think your friend was arguing, that the board didn't reject this because it wasn't raised in the petition, they just didn't consider it. [00:26:57] Speaker 02: They didn't consider it. [00:26:58] Speaker 02: That's just an APA violation, because they didn't consider the evidence and discuss it properly. [00:27:03] Speaker 03: Right, so I think at the bare minimum there would need to be Baker and Riemann, but I think the actual appropriate course would be reversal. [00:27:09] Speaker 03: This court can decide for itself because it's a matter of law. [00:27:14] Speaker 03: Just look at the expert concessions made by Ocho Grosso, their expert. [00:27:19] Speaker 03: That's it. [00:27:20] Speaker 03: I would urge this court to look at 1809 to 1810. [00:27:23] Speaker 03: But here's the things he said. [00:27:25] Speaker 03: To satisfy the intended purpose, one could retain overlapping fields of view. [00:27:30] Speaker 03: Fixing them ensures that the overlapping fields of view will be maintained. [00:27:34] Speaker 03: If they're overlapping to begin with and they remain fixed, then they will continue to be overlapping. [00:27:40] Speaker 03: And he was asked, it's true. [00:27:42] Speaker 03: To accomplish its goal, the first embodiment requires unit 102 and camera 351 to retain overlapping fields of view, correct? [00:27:49] Speaker 03: I would agree with that. [00:27:50] Speaker 01: So under this... You've got to read the OTM question at the bottom of the page. [00:27:55] Speaker 01: What's that? [00:27:56] Speaker 01: You've got to read the OTM question at the bottom of the page. [00:28:00] Speaker 01: OTM? [00:28:01] Speaker 01: One too many. [00:28:02] Speaker 01: Oh, yes. [00:28:05] Speaker 01: Or he says this doesn't show fixed. [00:28:08] Speaker 03: Right. [00:28:09] Speaker 03: Well, I think his concessions substantively show whether they... I think they are disclosed in Numizaki, but regardless, it shows it would have been obvious because it would have ensured the purpose. [00:28:20] Speaker 03: And under Luger and similar cases, where it's an indisputable sort of way to achieve the goal... Can I just take you back? [00:28:30] Speaker 02: I understand your argument on that point. [00:28:32] Speaker 02: You want us to decide the merits? [00:28:34] Speaker 02: I'm not sure. [00:28:35] Speaker 02: I'm there yet. [00:28:36] Speaker 02: But can you, that sentence at the bottom of page 34, I'm still stuck on that sentence. [00:28:42] Speaker 02: I don't understand how to read that sentence as anything but we're not going to consider this analysis because it wasn't in the petition, despite the seeming concession from the other side that they didn't limit the grounds or the like. [00:28:58] Speaker 02: So how do you understand that sentence? [00:29:01] Speaker 03: So you're talking about the petition, however, does not reference. [00:29:04] Speaker 03: So I think this gets at their sort of misguided focus on inherencies. [00:29:08] Speaker 03: The previous sentence was talking about our disavowal of making an inherency argument, but instead making an obviousness argument. [00:29:16] Speaker 03: And then the sentence you're referring to says, the petition, however, does not reference any such analysis. [00:29:22] Speaker 02: So the best way, in your view, to look at it would be the error is they improperly looked at this as an inherency argument, and because they didn't [00:29:30] Speaker 02: treated as an ordinary obviousness argument. [00:29:33] Speaker 02: They disregarded evidence that they didn't rule out because it exceeded the scope of the petition, but just because it didn't address the actual inherently argument. [00:29:42] Speaker 02: Correct. [00:29:42] Speaker 02: And that's the error. [00:29:44] Speaker 03: Correct. [00:29:44] Speaker 03: And I would just say, regardless, that if it's abuse of discretion and they were saying the stronger thing that there's just no obviousness theory, [00:29:54] Speaker 03: That's just, I think, that is an abuse of discretion, and they're just wrong, but there isn't an analysis by our expert. [00:30:00] Speaker 03: Again, if you look at 146, that must sentence I read is citing to our expert's declaration. [00:30:06] Speaker 03: There's no need for an expert declaration at the petition stage, but we had one there. [00:30:10] Speaker 03: And so I think that is more than sufficient to survive an abuse of discretion review. [00:30:19] Speaker 00: I do want to get to this idea that... Counsel, your time has expired. [00:30:23] Speaker 00: Do you have a final statement? [00:30:26] Speaker 03: No, I would just ask that this court reverse or at the very least vacate any of that. [00:30:31] Speaker 00: Thank you. [00:30:32] Speaker 00: Thank you. [00:30:32] Speaker 00: I think there's nothing to do about it. [00:30:35] Speaker 00: The case is submitted.