[00:00:00] Speaker 03: Our next case is Atos v. Allstate again, 2023, 1621, and 1849. [00:00:09] Speaker 03: Mr. Unikowsky again. [00:00:16] Speaker 02: Thank you, Your Honors. [00:00:18] Speaker 02: So right now, I'd like to turn to Judge Reno's question about vehicle independent states. [00:00:22] Speaker 02: I appreciate your indulgence and give me some time to get there. [00:00:26] Speaker 02: There was a claim construction dispute on this issue, and we respectfully believe that the board erred in its construction of the claim term. [00:00:34] Speaker 02: The claim construction dispute boil down to whether the device has to be inside the vehicle at the time of the vehicle independent state. [00:00:43] Speaker 02: So ATOS construed vehicle independent states to mean a state that is the result of movement of a portable device within the vehicle independent of or unrelated to the movement of the vehicle. [00:00:56] Speaker 02: And so I think that ATOS' construction is supported both by the plain language of the claim as well as the specification. [00:01:05] Speaker 02: So to begin with the claim language, there's a number of clues that vehicle independent state requires the device to be in the vehicle. [00:01:13] Speaker 02: So first of all, there's just the word vehicle in vehicle independent state. [00:01:17] Speaker 02: And so there's this question of which vehicle? [00:01:19] Speaker 02: And I think the natural answer is it's the vehicle that the device is in. [00:01:23] Speaker 02: That's the vehicle that the device is independent of. [00:01:27] Speaker 02: And I think when you juxtapose vehicle independent state with the next limitation, vehicle dependent state, that becomes even stronger. [00:01:35] Speaker 02: The whole concept of the vehicle dependent state is that the device is doing what the car is doing. [00:01:40] Speaker 02: So it's falling because the car is turning. [00:01:42] Speaker 02: So for a vehicle dependent state, the device definitely has to be in the car. [00:01:46] Speaker 02: And so it makes sense to say that in the vehicle independent state, the device is also in the car. [00:01:52] Speaker 02: And then I think if you just work through the different claims, there's actually an express statement in sublimitation A about the device being in the vehicle that's linked to C. So if you work through this, if you just start with A, A refers to an operation indicator being created when the portable device is inside the vehicle. [00:02:19] Speaker 02: So you have the operation indicator there. [00:02:21] Speaker 02: And then B detects when V, at least one operation indicator, that's a reference to A, meets one or more predetermined criteria. [00:02:31] Speaker 00: But don't subparagraphs B and C depend on A? [00:02:38] Speaker 00: Yeah, that's all right. [00:02:39] Speaker 00: Yes, sir. [00:02:40] Speaker 00: OK. [00:02:40] Speaker 00: Does it make any sense to? [00:02:44] Speaker 00: If you take out A, B and C would not make any sense standing alone. [00:02:48] Speaker 00: Correct. [00:02:49] Speaker 02: That is our argument. [00:02:50] Speaker 02: And yes, that is our argument with respect to the interlinkage between those three elements. [00:02:55] Speaker 02: And so A refers to the device being in the car, and then you go down to C, and then it says a vehicle independent state. [00:03:01] Speaker 02: if the state is independent of the vehicle in which the device is located, as described by A. So that's why we believe that vehicle-independent states should require that the vehicle at issue is the vehicle the device is in. [00:03:15] Speaker 02: I think there's tremendous support. [00:03:18] Speaker 02: Excuse me, Your Honor, do you have a question? [00:03:19] Speaker 04: Why doesn't what's shown in step 5C, which I think we're kind of walking through, or you're walking through, judge me on some of the steps. [00:03:27] Speaker 04: Why doesn't that allow the vehicle independent state to be determined when the user is outside the vehicle? [00:03:34] Speaker 02: Well, I think that because then it wouldn't be independent of the vehicle that it's inside. [00:03:41] Speaker 02: I think that the referenced vehicle in the phrase vehicle independent states is the vehicle in which the device is located. [00:03:48] Speaker 02: And A refers to the portable device being located inside the vehicle, and it's a link to the operation indicator. [00:03:56] Speaker 02: which is linked to the predetermined criteria. [00:03:58] Speaker 02: So I think that these predetermined criteria in C are measured or analyzed at a time when the portable device is in the car, which is in A. So I think there's a temporal linkage between A and C. And so if the device is in the car in A, it has to also be in the car in C. [00:04:18] Speaker 02: But that's one of the several reasons I think you'd construe it this way. [00:04:21] Speaker 02: I think that just the word vehicle in vehicle independent states implies a reference vehicle, and the only sensible answer to that is the vehicle that it's inside of. [00:04:31] Speaker 02: I think there's also just tremendous support from the specification that our interpretation is correct. [00:04:35] Speaker 02: It's so clear in the specification [00:04:37] Speaker 02: The whole point of this invention is to reduce the risk of peronious driving events by figuring out whether when you've dropped your phone or your phone moves around, whether it's because the car has done something or it's whether you've done something in the car, which implies that the device is independent of the vehicle in which the device is located. [00:04:59] Speaker 02: So if I could direct the court to column one, that's appendix 50A, [00:05:04] Speaker 02: The claim says, or excuse me, the specification says, it's important to be able to detect vehicle-dependent states. [00:05:13] Speaker 02: Sorry, appendix 58. [00:05:14] Speaker 02: It's at the back of the blue brief. [00:05:19] Speaker 02: And it's in column one. [00:05:21] Speaker 02: And you'll see, starting at line 38. [00:05:26] Speaker 02: 38? [00:05:28] Speaker 02: Yes. [00:05:30] Speaker 02: says in order to detect, excuse me, in order to provide a driver evaluation service or enhanced automatic detection of driving capabilities, it is important to be able to detect vehicle dependent states such as cornering, accelerating, and braking. [00:05:46] Speaker 02: So that's the phone detecting those states. [00:05:48] Speaker 02: So the phone is definitely in the car then. [00:05:50] Speaker 02: And then it says, while also recognizing vehicle-independent events, movement caused by the user handling the phone, phone falling to the ground, et cetera, in order to eliminate or significantly reduce the chances of erroneous driving events being registered. [00:06:06] Speaker 02: In other words, so the invention is able to distinguish movement of the car from just dropping the phone on the ground or moving it in your pocket. [00:06:15] Speaker 02: So the device doesn't think there's been a car accident just because you've dropped your phone. [00:06:20] Speaker 02: purpose of this invention. [00:06:22] Speaker 04: And we're seeing the phone falling to the ground. [00:06:23] Speaker 04: Are you talking about inside the car or the ground outside? [00:06:28] Speaker 04: You're talking about inside the car. [00:06:29] Speaker 02: That's right. [00:06:29] Speaker 02: So it's even clear, actually, if you look at column four, that's on appendix 59, at starting at line 32. [00:06:37] Speaker 02: So the ability to differentiate between vehicle-dependent and vehicle-independent events are crucial for any kind of driver evaluation. [00:06:47] Speaker 02: because it is common for most users to pick up their phones during driving or for the phone to get knocked to the ground, which could potentially cause erroneous driving events to be reported. [00:06:58] Speaker 02: So again, the whole point of this invention is while someone is driving, they might drop their phone, that's an event that's independent of the vehicle in which the device is located. [00:07:07] Speaker 02: And so I think that that informs what the phrase vehicle independent states means. [00:07:15] Speaker 02: So the only other issue we've raised in our primary appeal is this operation indicator question, which I think was fully litigated in the last round. [00:07:23] Speaker 02: So I don't have anything further on that unless the court has additional questions. [00:07:27] Speaker 04: So just to clarify, I assume then you're saying that the same basis you raised in the prior appeal, the 1619 appeal, would apply here on operation indicator. [00:07:35] Speaker 02: That's correct, yes. [00:07:39] Speaker 02: So I'm happy to turn to the questions and the cross appeals. [00:07:43] Speaker 02: Ordinarily, I'd go second, but I'm happy to start with that immediately. [00:07:47] Speaker 03: You may do that. [00:07:48] Speaker 02: Okay. [00:07:49] Speaker 02: Or whatever the court prefers. [00:07:50] Speaker 02: I have some more time, so I might as well. [00:07:53] Speaker 02: That's your argument. [00:07:55] Speaker 02: OK. [00:07:56] Speaker 02: So let me get to the two questions that were raised on the other side. [00:08:02] Speaker 02: So the first was this question of rotation vector. [00:08:07] Speaker 02: So this is an issue on which the board adopted the claim construction that was proposed by Allstate, but still concluded that the prior art, which was a physics textbook, did not disclose a rotation vector. [00:08:23] Speaker 02: That's a decision that's reviewed for substantial evidence. [00:08:27] Speaker 02: And we respectfully submit that the board's decision was correct on this issue. [00:08:33] Speaker 02: So the construction that was adopted was the method of detecting the condition, excuse me, the construction that was adopted was a vector that describes the motion of a body that is rotating around a point. [00:08:47] Speaker 02: That's the construction that Allstate proposed. [00:08:50] Speaker 02: That's the construction that the board adopted. [00:08:52] Speaker 02: And the board concluded that the physics textbook does not disclose that because [00:08:57] Speaker 02: the angular momentum factor, which was in the physics textbook, does not distinguish between a body that's rotating [00:09:05] Speaker 02: and a body that's going in a straight line. [00:09:06] Speaker 02: So it's useless for detecting the condition of a vehicle turning. [00:09:11] Speaker 02: And so the board gave a number of reasons for that, which was well supported by expert testimony. [00:09:17] Speaker 02: The board noted that the rotation vector, the angular momentum vector does not describe the angle, so it doesn't say how much something has rotated. [00:09:25] Speaker 02: As I said, it doesn't distinguish between a rotation and a straight line. [00:09:29] Speaker 02: Also, it has no physical meaning whatsoever in the context of vehicle motion. [00:09:34] Speaker 02: because it's not even inherent to an object. [00:09:36] Speaker 02: It requires a completely arbitrary choice of a point of origin. [00:09:40] Speaker 02: So it doesn't describe the motion of a body rotating around a point, which was the construction that Allstate proposed. [00:09:48] Speaker 02: And so I think the board very reasonably construed the prior art not to disclose a rotation vector under that construction. [00:09:56] Speaker 02: And in my waiting time, just to speed this up, I'll also get to the second issue in the cross appeal, which has to do with the proper construction of movement vector. [00:10:06] Speaker 02: So I think that the crucial point in this case is that a movement vector does not have an ordinary meaning. [00:10:12] Speaker 02: It's a coined term. [00:10:14] Speaker 02: And there's a finding from the board on this. [00:10:16] Speaker 02: You'll see at appendix 15 in the 174. [00:10:20] Speaker 02: Neither party argues that the term has an ordinary meaning to persons of ordinary skill in the art. [00:10:26] Speaker 02: And so I think in that context, it's quite natural. [00:10:29] Speaker 02: And this court's cases say that one should look at the intrinsic evidence, in this case, the specification, to figure out what this made-up term means. [00:10:38] Speaker 02: And then the specification says it's a vector that's derived from the cross product of the centrifugal force vector and the rotation vector. [00:10:45] Speaker 02: And that's the construction the board properly adopted. [00:10:50] Speaker 04: Does this argument, though, rely on lexicology? [00:10:54] Speaker 02: I think that's what the board concluded. [00:10:56] Speaker 02: I mean, I think that the right way to think about it is because there's just no ordinary meaning, the only way to figure out what it means is to look at the specification, especially when we're talking about this mathematical object. [00:11:08] Speaker 02: It doesn't really make sense to say that this very specific mathematical object can really be a vector that indicates movement in any way whatsoever. [00:11:17] Speaker 02: as all state argued, which could really be a wide variety of different types of vectors. [00:11:22] Speaker 02: I think the board properly said that this precise mathematical construct should be given a precise meaning, and the intrinsic evidence tells you exactly what it is. [00:11:31] Speaker 02: So on that issue, we believe the board should be affirmed. [00:11:35] Speaker 00: Did you argue to the board the arguments you're making today about the device falling to the ground as being a vehicle independent movement? [00:11:45] Speaker 02: Yes, we did, Your Honor. [00:11:46] Speaker 02: I'm happy to direct the court to the Jalbi-Pershing Awards decision. [00:11:50] Speaker 00: Did you make the argument? [00:11:52] Speaker 00: that your argument depended on ground being the floor of the vehicle? [00:11:56] Speaker 00: Yes. [00:11:57] Speaker 02: I think you'll see on Appendix 22 to 24, I think we make these arguments in some detail. [00:12:03] Speaker 02: So at Appendix 22, where the board is summarizing our argument, it says, Patent Owner responds that the main premise of the 174 patent is to distinguish between different types of movement that occur while a portable device is inside a vehicle, and argues that the purpose of the invention [00:12:19] Speaker 02: to eliminate or significantly reduce the chances of an erroneous driving events being registered only applies if the vehicle independent events occur while the device is in the vehicle. [00:12:30] Speaker 02: So that's really what I'm arguing to the court this morning. [00:12:35] Speaker 02: And the next sentence, again, explains our argument, which is very similar to what I'm telling today. [00:12:39] Speaker 02: So yes, I think the board probably understood that we were making this argument, and I'm renewing the argument that we raised in the board. [00:12:45] Speaker 03: And we'll go now into your battle talk. [00:12:47] Speaker 03: Thank you, Your Honors. [00:12:49] Speaker 03: Thank you. [00:13:00] Speaker 01: Again, Nathaniel Love for Allstate. [00:13:01] Speaker 01: I'll start with your question, Judge Rina. [00:13:04] Speaker 01: As you heard, the passage that he read to you did not summarize the argument that they made today that ground in the patent meant the floor of the car. [00:13:12] Speaker 01: As we said in our briefs, they did not make that argument before the board. [00:13:14] Speaker 01: In the passage you just read you, they weren't making that argument either. [00:13:17] Speaker 01: It wasn't made below. [00:13:19] Speaker 01: On the rest of vehicle-independent states, the board's construction should be affirmed and the additional requirement within the vehicle should not be added. [00:13:28] Speaker 01: The board found that falling to the ground is vehicle-independent movement and the phone may be outside of the vehicle. [00:13:35] Speaker 01: That's correct. [00:13:36] Speaker 01: That's a factual finding about what's disclosed in the patent that is correct. [00:13:41] Speaker 01: You know, Council started with vehicle-independent. [00:13:43] Speaker 01: and the idea that that phrase must then specify a vehicle, the whole idea of independence is it's independent of any vehicle. [00:13:51] Speaker 01: And so the notion of a vehicle independent state in and of itself doesn't require that some specific vehicle necessarily exist. [00:13:59] Speaker 01: The other specification support that council did not address, [00:14:03] Speaker 01: but absolutely supports the board's construction is in the 140 patent. [00:14:08] Speaker 01: And the reason the 140 patent is relevant is that at column one of the 174 patent, the inventors chose to incorporate by reference all of the disclosures from the 140 patent about vehicle dependent states and vehicle independent states. [00:14:22] Speaker 01: And it called the 140 patent the state disclosure for everything the 140 patent says about vehicle independent states. [00:14:29] Speaker 01: And the 140 patent talks about the user walking with the phone, shaking the phone, as contrasted to vehicular movement. [00:14:36] Speaker 01: That's at Appendix 74 in column 2, line 16 to 20 of the 140 patent. [00:14:41] Speaker 01: It also talks about other states where the user is, quote, outside the car. [00:14:46] Speaker 01: That's an appendix 74, column 2, line 27 to 28, and a column 5, an appendix 76, lines 34 to 35. [00:14:54] Speaker 01: The patent describes taking measurements when the portable device is not in the vehicle, individual walking with the device. [00:15:01] Speaker 01: Calls that one of the states of interest. [00:15:03] Speaker 01: So the 140 patent consistently and repeatedly talks about [00:15:07] Speaker 01: a vehicle independent state, a state of the user outside of the car doing something else with the device as something of interest. [00:15:16] Speaker 01: There's a suggestion in their briefing that the 140 patent was somehow irrelevant to this term. [00:15:21] Speaker 01: I don't see how that's a tenable position to take based on what the 174 patent says about the 140 patent and what is specifically being incorporated from it. [00:15:32] Speaker 01: I want to address this argument about the other claim language and how limitation 5A goes through to limitation 5C. [00:15:40] Speaker 01: So what they're arguing now on appeal is that the term should be construed to include the requirement of within the vehicle, within 5C, vehicle independent states in 5C. [00:15:53] Speaker 01: That's the claim construction argument. [00:15:55] Speaker 01: They did not make that claim construction argument below. [00:15:58] Speaker 01: It was advanced for the first time in the briefing here. [00:16:01] Speaker 01: And in response in the papers, they tried to point to something that happened at the hearing, conceding that they didn't raise it in their papers, which they didn't. [00:16:08] Speaker 01: But what they argued at the hearing was, and I'll point the court directly to what they're citing, 625 in the appendix, lines 21 through 22. [00:16:17] Speaker 01: What Council is arguing, he was saying even if all states' construction is correct, he had a position, so the construction of this term, [00:16:27] Speaker 01: So even under construction of vehicle independent state, without the requirement of within the vehicle, he had an argument that based on 5A, the Schwartz reference, which was an issue, would not anticipate. [00:16:39] Speaker 04: What was the page you just described? [00:16:41] Speaker 01: I want to make sure I have it. [00:16:42] Speaker 01: 625, lines 21 through 22. [00:16:46] Speaker 01: So they were never arguing that claim 5A should inform the construction of this term in claim 5C. [00:16:54] Speaker 01: That was never made before the board. [00:16:55] Speaker 01: But taking it out on the merits, it doesn't actually support the claim construction. [00:17:00] Speaker 01: And that's because 5A is talking about when you determine an operation indicator. [00:17:06] Speaker 01: And the last step, 5C, is talking about determining a vehicle's independent state. [00:17:10] Speaker 01: There is no requirement that those things be determined at the same time. [00:17:14] Speaker 01: It is entirely possible an operation indicator could be determined while the device is in the vehicle. [00:17:19] Speaker 01: The user gets out of the vehicle, and a vehicle with a dependent state is determined at that time. [00:17:23] Speaker 01: So it doesn't even go anywhere. [00:17:25] Speaker 01: I'd like to move to, if there's no other questions on that, I'll move to. [00:17:29] Speaker 04: So it sounds like you disagree with their temporal argument. [00:17:31] Speaker 04: Is that fair to say? [00:17:32] Speaker 01: Yes. [00:17:33] Speaker 01: Yes. [00:17:34] Speaker 01: We believe it's untimely and can't be raised. [00:17:36] Speaker 01: But on the merits of it, it's just wrong. [00:17:38] Speaker 01: The claim language doesn't require that. [00:17:40] Speaker 01: So the first issue in our cross appeal is rotation vector. [00:17:44] Speaker 01: And we agree, this is a substantial evidence question, but it's kind of a unique one because the board adopted our construction and then went on to find that the prior reference we offered did not disclose it. [00:17:55] Speaker 01: So it's sort of an unusual circumstance. [00:17:58] Speaker 01: The board's findings about Kleppner. [00:18:00] Speaker 01: Kleppner discloses, the physics textbook, discloses a vector that it calls L. L is a rotation vector. [00:18:07] Speaker 01: as we are the petition explained, because it describes the motion of the body that rotates around a point. [00:18:13] Speaker 01: That's the board's construction. [00:18:15] Speaker 01: The board made findings about Kleppner that confirm that. [00:18:17] Speaker 01: And those are at appendix 26, where the board is citing to the key passage of Kleppner, which is at appendix 1112. [00:18:23] Speaker 01: That's the part of Kleppner that has the figures that show the plane and the object rotating, turning in the XY plane. [00:18:31] Speaker 01: And then you've got L, which is a vector which points upward. [00:18:35] Speaker 01: If the vehicle is turning to the left and it points downward, if the vehicle is turning to the right, it is one of the many instances of physics of the right-hand rule. [00:18:44] Speaker 01: And that observation of the direction that a rotation vector points for a turning object in the xy plane is all you need for the rest of this claim, which has very few words in it and simply says you're detecting the condition of a vehicle turning by comparing that rotation vector to the direction of gravity. [00:19:03] Speaker 01: So if it's the same or it's exactly the opposite, you're turning. [00:19:06] Speaker 01: That was the entire point of the petition. [00:19:08] Speaker 01: And L, this example in Kleppner, [00:19:11] Speaker 01: meets the board's claim construction because it describes the motion of that body. [00:19:15] Speaker 01: It's turning left or it's turning right based on the direction of L. So there is substantial evidence from Kleppner itself showing that the claim construction is met. [00:19:26] Speaker 01: And there's actually no evidence on the other side showing that somehow Kleppner doesn't disclose what the claim construction requires. [00:19:34] Speaker 01: What the board did was distinguish Kleppner based on a series of requirements that are not in the construction. [00:19:42] Speaker 01: and including a misinterpretation of its own institution decision, warned against. [00:19:47] Speaker 01: There's four of them, and they're spelled out in our brief, and I can go through them, touch on them quickly. [00:19:53] Speaker 01: The first one was this idea that L is defined with respect to its primitive origin, it doesn't describe an angle, and has particular units. [00:20:01] Speaker 01: The construction doesn't require any particular units. [00:20:03] Speaker 01: The construction doesn't require a particular plane of origin. [00:20:06] Speaker 01: And the construction also doesn't require describing an angle. [00:20:08] Speaker 01: But of course, L does describe an angle. [00:20:11] Speaker 01: That's the whole point of what Kleppner is showing on page 1112 of the appendix. [00:20:16] Speaker 01: It is showing this perpendicular vector to the plane of rotation. [00:20:21] Speaker 01: The second point the board tried to make, this is in appendix 30, that angular momentum can't be used to distinguish between an object turning and an object moving in a straight line. [00:20:30] Speaker 01: So this is one of the several points where the board pivots from going to what Kleppner actually discloses, which is sentences and words and pictures showing a vector L that meets the claim construction, and instead pivoting to expert testimony that Atos offered about angular momentum generally. [00:20:48] Speaker 01: And the fact that even though we're often talking about angular momentum for a rotating object or an object that is turning, it is defined at all times. [00:20:56] Speaker 01: You can define it in other settings. [00:20:58] Speaker 01: But the construction of this term doesn't require the ability to differentiate between an object turning and an object moving in a straight line. [00:21:07] Speaker 01: It's simply not in the construction. [00:21:08] Speaker 01: And it's not a basis for the board to say, as it did, that L doesn't meet the construction. [00:21:14] Speaker 01: The board went on to say, angular momentum is not inherent to an object, its computation requires an arbitrary choice of a point of origin. [00:21:21] Speaker 01: Again, that's not in the construction. [00:21:24] Speaker 01: And what Kleppner shows is not arbitrary. [00:21:27] Speaker 01: Kleppner shows L drawn through the origin around which the object is rotating. [00:21:31] Speaker 01: Again, the board is talking about angular momentum generally. [00:21:34] Speaker 01: It's not talking about what this prior art reference shows you, literally shows you a picture of what the vector, which describes the motion of this turning object, looks like. [00:21:44] Speaker 01: That was the question before the board, whether this disclosure matched the claim construction. [00:21:49] Speaker 01: The last point of distinction the board made was about the gravity vector. [00:21:53] Speaker 01: The board seemed confused about whether or not the gravity vector, which is a separate part of the claim, should be considered as part of the claim construction of rotation vector. [00:22:02] Speaker 01: Of course, the claim construction doesn't mention the gravity vector, so this has nothing to do [00:22:06] Speaker 01: with whether or not L meets the claim construction. [00:22:09] Speaker 01: What the board was discussing was the expert's point that Kleppner discusses the gravity vector in a separate chapter of the book, which is not surprising, even if it's a physics textbook. [00:22:20] Speaker 01: But it's the same reference, and the reference discloses both of these vectors and where they point. [00:22:25] Speaker 01: Regardless of that, where the gravity vector appears in Kleppner is not a basis to say that L doesn't meet the claim construction of rotation vector. [00:22:35] Speaker 01: So we believe the only evidence, which is the board's own interpretation of Cluptor, which is at Appendix 26 and cites to 1112, shows that L meets the construction of rotation vector and the court should vacate and remat. [00:22:51] Speaker 01: And then I'll turn to movement vector. [00:22:54] Speaker 01: So claims three and four require estimating an angle between a speed change vector and a movement vector. [00:23:00] Speaker 01: Again, these are just basic vectors describing the motion of objects. [00:23:04] Speaker 01: Vectors are arrows, a movement vector, the direction tells you which direction the object is going, often the magnitude would show you perhaps the velocity. [00:23:15] Speaker 04: So you would disagree that lexicography applies for movement vector. [00:23:18] Speaker 04: Is that true? [00:23:19] Speaker 01: I'm sorry, disagree. [00:23:20] Speaker 04: Would you disagree that lexicography would apply for movement vector? [00:23:23] Speaker 01: I absolutely disagree. [00:23:24] Speaker 01: And the history of this is important. [00:23:26] Speaker 01: There was a suggestion in the brief that we somehow agreed that this term lacked plain and ordinary meaning. [00:23:31] Speaker 01: But that's not what happened. [00:23:33] Speaker 01: Our petition did not offer a construction of that term. [00:23:35] Speaker 01: And what that means in the IPR context is everything we're not offering a construction for is getting plain and ordinary meaning. [00:23:41] Speaker 01: That was our position. [00:23:42] Speaker 01: In their response, they advanced a construction. [00:23:45] Speaker 01: And so in reply, we said, we don't think that construction is right. [00:23:47] Speaker 01: We think it's unsupported for all the reasons we have in our briefs here. [00:23:50] Speaker 01: But if a construction is necessary, it's the plain and ordinary meaning, which means a vector indicating the direction of movement of the object. [00:23:58] Speaker 01: It's not, as they say, any vector having anything to do with movement. [00:24:02] Speaker 01: It's a vector that pulls. [00:24:04] Speaker 01: in the direction of movement. [00:24:06] Speaker 01: And this claim is all about comparing angles of vectors. [00:24:10] Speaker 01: And all you need to do that is, all you need in order to compare the angles of two vectors is to know the direction, the magnitude. [00:24:16] Speaker 04: It won't matter. [00:24:16] Speaker 04: If we agree with you on your arguments related to movement vector, what are you seeking in terms of what you believe? [00:24:23] Speaker 04: Are you seeking that we say your proposed claim construction is right? [00:24:32] Speaker 01: What do you see? [00:24:34] Speaker 01: They came to remand with the instruction to adopt the plaint in an ordinary meaning, which is a vector indicating the direction and movement of an object. [00:24:40] Speaker 01: The lexicography decision, really, there's no effort to defend it in their briefs. [00:24:45] Speaker 01: There's no words of manifest exclusion and restriction, nothing that this court's precedents require. [00:24:50] Speaker 01: It's permissive. [00:24:50] Speaker 01: It can be defined this way. [00:24:52] Speaker 01: But it is not required. [00:24:55] Speaker 01: The only attempt they make to defend it is to say that it tracks the specification. [00:24:59] Speaker 01: In any instance where lexicography is improperly evoked, you found something in the specification, so it's consistent with it. [00:25:05] Speaker 01: The question is whether that should be adopted as a definition. [00:25:08] Speaker 04: And it's also part of the argument is when they did intend to, and these set of patents want to define something, they didn't [00:25:18] Speaker 04: here for movement that day? [00:25:19] Speaker 01: They did. [00:25:20] Speaker 01: They did that multiple times. [00:25:21] Speaker 01: They used the phrase, as used herein, x means, and then they defined terms. [00:25:25] Speaker 01: And they didn't do that here. [00:25:27] Speaker 01: They used the permissive language here. [00:25:29] Speaker 01: The only other piece of evidence they offered was this expert testimony, which they suggest in their brief required this construction. [00:25:37] Speaker 01: If you look at what the expert said, that's at appendix 83 to 84, paragraph 53 of their expert's declaration. [00:25:45] Speaker 01: All he was saying was the [00:25:46] Speaker 01: invention could work using this construction. [00:25:48] Speaker 01: He did not say it could only work or had to use this particular claim construction. [00:25:54] Speaker 01: It wouldn't otherwise work. [00:25:56] Speaker 01: So I'm a little unclear on whether reserving rebuttal time is a program because counsel already addressed the cross-appeal. [00:26:02] Speaker 03: You may reserve it, but you will not have an opportunity to use it if opposing counsel does not deal with the cross-appeal issues. [00:26:10] Speaker 03: If it does, you may respond. [00:26:17] Speaker 03: Thank you, Your Honor. [00:26:23] Speaker 02: So just a few points, Your Honors. [00:26:25] Speaker 02: First of all, on this question of vehicle-built independent states and the allegation that we forfeit an argument. [00:26:30] Speaker 02: So first of all, I think that the concept of forfeiture is not even meaningful here. [00:26:34] Speaker 02: As we pointed out in our reply group in the other appeal, this Court has held that as long as you're advancing the same construction in Florida as in this Court, you're allowed to rely on any portion of the [00:26:44] Speaker 02: intrinsic evidence that you wish without being accused of forfeiture. [00:26:46] Speaker 02: That's exactly what we're doing. [00:26:48] Speaker 02: But regardless, I don't even understand these very hyper-technical forfeiture arguments. [00:26:53] Speaker 02: You'll see on it, with regard to the device falling on the ground, on Appendix 23, the board actually quotes our argument about, you know, where we quote the language and the specification, vehicle-independent state, movement caused by the user handling the phone, phone falling to the ground. [00:27:08] Speaker 02: And then later on, Appendix 23, the board responds to that by saying, no, falling to the ground implies that the phone may be outside the vehicle, not inside. [00:27:16] Speaker 02: So we're just disagreeing with the board's decision, which in turn addressed our argument about the phone falling to the ground. [00:27:23] Speaker 02: Meanwhile, on Appendix 24, there's a whole paragraph addressing the linkage between A and B and C, which is a very complicated argument that we were making by also that we were making a slightly different argument in the board. [00:27:35] Speaker 02: I don't think that's true, and the board certainly didn't see it that way. [00:27:37] Speaker 02: There's a whole paragraph on 24 addressing the exact argument I made to the court this morning. [00:27:41] Speaker 04: I want to just clarify something, because I'm not sure if I misunderstood when we were talking earlier. [00:27:45] Speaker 04: When we were talking earlier about 5C, I thought you said that falling to the ground meant the floor of the car. [00:27:52] Speaker 04: But now I feel like I'm hearing falling to the ground means the ground outside. [00:27:56] Speaker 02: No, the car. [00:27:56] Speaker 02: Yeah, the ground in the car. [00:27:58] Speaker 02: That's what I'm referring. [00:27:58] Speaker 02: So C doesn't refer to the ground. [00:28:00] Speaker 02: That's just a discussion of specification, talking about the phone falling to the ground. [00:28:03] Speaker 02: But I think that when the specification is talking about phone falling to the ground, it's talking about the ground of the car. [00:28:09] Speaker 02: I don't think it's the ground in the earth. [00:28:14] Speaker 02: So that's what I think what this is referring to. [00:28:18] Speaker 02: And I think if you just look at the rest of the specification in which it explains the whole point of this invention is so the phone can tell whether the reason it had an event was because the car was doing something or because the phone was doing something. [00:28:29] Speaker 02: It's the ability to distinguish the movement of the car from the movement of the phone, which is all useful when the phone is in the car. [00:28:35] Speaker 02: That's what it means to be vehicle-independent state. [00:28:38] Speaker 02: The phone is moving independent of the vehicle that it's inside of. [00:28:41] Speaker 02: That's the vehicle that it's independent of. [00:28:44] Speaker 02: So I see my time has expired. [00:28:47] Speaker 02: I'm happy to address any other questions about rotation or movement of vector, if the panel has any. [00:28:52] Speaker 03: Well, your time has expired. [00:28:53] Speaker 03: Thank you, Council. [00:28:55] Speaker 03: Thank you. [00:28:55] Speaker 03: And Mr. Rhodes, there's no opportunity for a battle. [00:28:58] Speaker 03: Case is submitted.