[00:00:00] Speaker 04:
The next case for argument is 23-1129 CUPP Computing versus Vidal.

[00:00:09] Speaker 04:
We're ready with you when you are Mr. Monday.

[00:00:11] Speaker 03:
Good morning, Your Honors.

[00:00:14] Speaker 03:
May it please the Court?

[00:00:15] Speaker 03:
20 patent claims were found obvious over a single obviousness reference.

[00:00:22] Speaker 03:
In order to do so, the PTAB had to ignore certain important claim elements and claim limitations.

[00:00:28] Speaker 03:
We're only appealing four of those claims because those two have two different claim elements that are just not considered by the PTAB and should be reversed on a basis alone.

[00:00:39] Speaker 03:
The most obvious one is the dependent claims 8 and 17.

[00:00:42] Speaker 03:
Claims 8 and 17 require certain information, security codes, security policy, and security data to be configured to mirror a security policy of a gateway.

[00:00:54] Speaker 03:
Now, that's a transdiverve.

[00:00:56] Speaker 03:
And that means it's an order of operations.

[00:00:59] Speaker 03:
The policies have to be configured to mirror that which is on the gateway already.

[00:01:05] Speaker 03:
The PTAP found that it was not an order of operation.

[00:01:08] Speaker 03:
They said it could be the other way around.

[00:01:09] Speaker 03:
So that's what, in fact, it was.

[00:01:10] Speaker 03:
It was actually reversed.

[00:01:12] Speaker 03:
There was no evidence or record that those security code, policy, and data are configured to mirror the gateway, but in essence, the other way around.

[00:01:24] Speaker 00:
Now, isn't mirroring measured or isn't it reasonable for the board to find mirroring is measured by the end result?

[00:01:32] Speaker 00:
Do you have the same security policies, for example, in both locations, regardless of who gets it first or if they get it at the same time?

[00:01:40] Speaker 00:
Well, that's what the PTAB found.

[00:01:42] Speaker 00:
What's unreasonable about that?

[00:01:45] Speaker 03:
Well, it ignores the language of the claim.

[00:01:47] Speaker 03:
You know, when it says it's configured to mirror the security policies of a gateway, under common English grammar, that's a transdiverb, where one object acts on another object.

[00:01:57] Speaker 03:
Here, the policies and code and data are configured to mirror that of a gateway.

[00:02:05] Speaker 03:
So the gateway has to be there first.

[00:02:07] Speaker 03:
They have to have the policies first, and it has to mirror the other way around.

[00:02:10] Speaker 03:
It's not enough to have just the

[00:02:13] Speaker 03:
gateway mirroring the policies and everything else.

[00:02:16] Speaker 03:
So that's one issue with it.

[00:02:18] Speaker 03:
The second issue with this claim construction was raised for the very first time in oral argument, and that was admitted by the PTAC.

[00:02:24] Speaker 03:
This claim construction did not come up in any of the briefing.

[00:02:28] Speaker 03:
None of the experts gave this claim construction.

[00:02:30] Speaker 03:
It was brought up in the actual oral argument.

[00:02:32] Speaker 03:
That's a violation of the APA and due process.

[00:02:35] Speaker 00:
Wasn't it clear all along that you implicitly were arguing for the order of steps and they were not?

[00:02:43] Speaker 03:
you know uh... they've been trying like uh... here exactly uh... it wasn't that what they are going to be quick frank because this is to get a claims and it was kind of uh... the opposite is kind of gloss over the fact that they brought up the very first time that it was not a order of operations or

[00:03:02] Speaker 03:
And that's what the PTAB relied on and actually quoted in their final decision.

[00:03:06] Speaker 04:
And you had no opportunity to respond whatsoever?

[00:03:09] Speaker 03:
No argument we could have.

[00:03:10] Speaker 03:
But we didn't have the opportunity to actually vet it out and actually have the claim instruction prior to proposed

[00:03:16] Speaker 03:
prior to the actual oral argument.

[00:03:19] Speaker 03:
As this court found in Dale and Qualcomm, it's not appropriate to have the oral argument sort of basis and get sprung on a new claim construction and have the PTAB adopt it.

[00:03:29] Speaker 03:
And PTAB doesn't hide the fact that's where they adopted from.

[00:03:32] Speaker 03:
It's from the oral argument.

[00:03:33] Speaker 04:
Well, I think a lot of our cases say they can adopt a different claim construction.

[00:03:39] Speaker 04:
And what we've looked to is whether or not there was sufficient opportunity for the sides to respond to that.

[00:03:44] Speaker 03:
And we would say that it was not sufficient opportunity because it was raised for the first time and it was just never briefed.

[00:03:49] Speaker 03:
So we think it was, one, a misreading of the English language, simple rules of grammar.

[00:03:56] Speaker 03:
My high school English teacher taught me about transitive verbs.

[00:03:59] Speaker 02:
And two... Well, if it's that simple, couldn't it have been you responded to an oral argument?

[00:04:04] Speaker 03:
It could have been, but it's still an unfair upbringing of a claim structure.

[00:04:09] Speaker 03:
Not if you had a chance to respond.

[00:04:12] Speaker 03:
It, to have a finetration brought up for the very first time by a petitioner in oral argument, and have an effective response to it, and understand what was coming at that time, I think would be an extreme standard to set, because that's the case.

[00:04:30] Speaker 03:
petitioners with spring new construction on aerial argument.

[00:04:33] Speaker 03:
And that's just not the rules.

[00:04:34] Speaker 03:
The rules are you have proper notice, and that's through the papers.

[00:04:37] Speaker 03:
So I think that is a basis for reversing.

[00:04:40] Speaker 02:
Did you attempt to ask for lead to respond to that new claim construction?

[00:04:45] Speaker 02:
I I think that that's what this we're doing now I will this appeal because at the time is perhaps is the wrong form Yeah If you're complaining about the board adopting the wrong claim construction because you didn't get a chance to fully explain your reasoning You should have asked the board.

[00:05:01] Speaker 03:
Well, the board didn't adopt the contract until far written decisions So it was something that we I guess we're saying it was new at oral arguments.

[00:05:08] Speaker 02:
So you knew it was new and

[00:05:10] Speaker 02:
You had a chance for argument to respond.

[00:05:12] Speaker 02:
And if you thought it was that important, you could have asked the board to file further briefing.

[00:05:17] Speaker 02:
They probably would have denied it.

[00:05:18] Speaker 02:
But at least you could have gotten something into the board to let them know you thought this was a problem.

[00:05:24] Speaker 03:
Yeah.

[00:05:25] Speaker 03:
I guess that, Your Honor, I appreciate that response.

[00:05:27] Speaker 03:
But at the same time, that does kind of shift the burden to us when we did nothing wrong.

[00:05:30] Speaker 03:
And we proposed our claim instructions up front.

[00:05:34] Speaker 03:
And we got sprung off the very end with a burden.

[00:05:37] Speaker 03:
And to be candid with you, we didn't expect the board to adopt that claim instruction, because it is against the laws of English grammar.

[00:05:43] Speaker 03:
If you read that claim language, it cannot be clearer that the security data code and policies are configured to mirror the policies of.

[00:05:53] Speaker 04:
And that's nowhere in the record that you made that assertion to the board?

[00:05:57] Speaker 03:
Made the assertion?

[00:05:57] Speaker 04:
To the board, before the board.

[00:05:59] Speaker 03:
What assertion?

[00:06:00] Speaker 04:
What you just said, that you think this is the clear reading, the clear construction of the term.

[00:06:06] Speaker 00:
we actually did argue that below.

[00:06:08] Speaker 00:
You acknowledged that you made clear all along that your position was there is an order of steps, correct?

[00:06:14] Speaker 00:
That's correct.

[00:06:16] Speaker 00:
And was it not clear going into the hearing that Trent Micro disagreed with that?

[00:06:20] Speaker 00:
uh... i don't think so uh... i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i i

[00:06:45] Speaker 03:
Well, they still violated laws of grammar, we would submit.

[00:06:49] Speaker 00:
That's the merits.

[00:06:50] Speaker 00:
That's the merits.

[00:06:51] Speaker 00:
That's different.

[00:06:52] Speaker 03:
The merits is one issue.

[00:06:54] Speaker 03:
And then the actual procedural component here, when it actually came up and when the board actually decided to adopt it, was based on the whole argument.

[00:07:03] Speaker 03:
I understand your honor's position.

[00:07:05] Speaker 03:
Maybe it was a fine point that we should have caught at the time.

[00:07:08] Speaker 03:
But these hearings were very long.

[00:07:10] Speaker 03:
And there was a bunch of arguments going on.

[00:07:12] Speaker 03:
There was no concept, would you ever believe, that the board would ignore the plain language of the claim.

[00:07:18] Speaker 00:
OK, but you're saying the only way the record could be read is that you all, in good faith, went into the hearing, not even recognizing there was a dispute about your order of steps.

[00:07:29] Speaker 00:
proposed construction of the mirroring.

[00:07:31] Speaker 03:
Well, the order assessment was implicit in the language itself, so we thought that's what the argument was about.

[00:07:35] Speaker 04:
I may be wrong about this, but isn't our usual rule that we don't consider the claims to have an order unless otherwise required?

[00:07:44] Speaker 03:
Well, there is a rule to that.

[00:07:46] Speaker 03:
The plain language requires it.

[00:07:48] Speaker 03:
That's our position.

[00:07:49] Speaker 03:
The language itself is very explicit.

[00:07:51] Speaker 03:
There is an ordered operation here.

[00:07:53] Speaker 03:
Because the language, you can't get around the same language.

[00:07:56] Speaker 04:
So it seems like you were the ones that should have made it.

[00:07:58] Speaker 04:
And you made that argument to the board.

[00:08:00] Speaker 04:
We made the argument.

[00:08:01] Speaker 04:
And you found out only at the hearing that they differed with your analysis of whether the claims have to be in order.

[00:08:10] Speaker 04:
You didn't know that before?

[00:08:11] Speaker 03:
It was not apparent that they would be arguing that until the oral argument.

[00:08:16] Speaker 03:
And actually, in the PTAB's written decision, that's what governs this.

[00:08:20] Speaker 03:
That's what they said.

[00:08:22] Speaker 03:
They adopted what was brought about by the oral argument.

[00:08:25] Speaker 03:
I would like to go to claims 19 and 20.

[00:08:27] Speaker 03:
I have a chance here.

[00:08:29] Speaker 03:
In that particular instance, once again, the PTAB just ignored a part of the claim language.

[00:08:35] Speaker 03:
They did the analysis of claims 1 and 19 together, saying they're similar.

[00:08:38] Speaker 03:
Not identical, but they're similar.

[00:08:40] Speaker 03:
They used the construction of claim 1 to invalidate claim 19.

[00:08:44] Speaker 03:
FN19 had a very important element added to it that was not construed.

[00:08:48] Speaker 03:
That is the configurable process by security system processor.

[00:08:52] Speaker 03:
That is the very key aspect here.

[00:08:54] Speaker 03:
You have to do the processing by the security system processor, not processing down at the mobile device.

[00:09:04] Speaker 03:
That's a very key important component that was never construed.

[00:09:08] Speaker 04:
In fact... Well, I thought your main argument with respect to Claim 19 was the board's reliance on this expert, whose declaration your claim was too conclusory.

[00:09:18] Speaker 03:
That's part of it.

[00:09:19] Speaker 03:
That's part of it.

[00:09:20] Speaker 03:
The first part was the claim construction issue, that they ignored that component of the claim construction altogether.

[00:09:24] Speaker 03:
The PTAB, if you look at appendix pages 20-22, what was very illuminating is the PTAB did the claim, that's the claim construction section of the final written decision, section C.

[00:09:38] Speaker 03:
And there they're construing the claims, but they talk about an obvious analysis.

[00:09:42] Speaker 03:
They're doing an obvious analysis during claim construction, which is per se incorrect.

[00:09:47] Speaker 03:
This court's held numerous times.

[00:09:49] Speaker 03:
There's a two-step process.

[00:09:50] Speaker 03:
We do claim construction independent of the prior art, and then do an obvious analysis.

[00:09:56] Speaker 03:
And that is conflated all over that section where they're interpreting this very famous work we're complaining of.

[00:10:02] Speaker 00:
Have we ever held that if the outcome is the same under either proposed construction that the board has to nonetheless expressly construe the term?

[00:10:18] Speaker 00:
Because here the board goes on to say even under your preferred construction, it's still obvious.

[00:10:24] Speaker 00:
Yeah.

[00:10:24] Speaker 00:
Have we said they have to expressly construe in that circumstance?

[00:10:29] Speaker 03:
That's the board's, the heads I win, tails you lose argument.

[00:10:32] Speaker 03:
And they're doing so in every one of their written opinions I've seen recently.

[00:10:34] Speaker 03:
Have we said they can't do that, though?

[00:10:36] Speaker 03:
No, I think that's fine.

[00:10:37] Speaker 03:
But they didn't do an analysis of the claim construction.

[00:10:39] Speaker 03:
They did analysis.

[00:10:40] Speaker 02:
I mean, isn't that just good opinion writing?

[00:10:41] Speaker 02:
It's like, we'll address it.

[00:10:43] Speaker 02:
Here's what we think is right.

[00:10:43] Speaker 02:
But even if we're wrong on this, you still lose because of this other reason.

[00:10:49] Speaker 02:
You're allowed to make alternative grounds for your holding.

[00:10:52] Speaker 03:
Absolutely.

[00:10:52] Speaker 03:
But my point is, they didn't apply the construction.

[00:10:56] Speaker 03:
When we applied, they just said, even using your construction, it would still be obvious.

[00:11:00] Speaker 03:
Not saying why.

[00:11:01] Speaker 03:
No analysis of it.

[00:11:02] Speaker 03:
All the analysis was done using petitioner's construction.

[00:11:06] Speaker 03:
Just a summary, conclusory statement saying, even if you didn't adopt your construction, it would be obvious.

[00:11:13] Speaker 03:
And that was the extent of it.

[00:11:14] Speaker 03:
That's about as far as they went.

[00:11:16] Speaker 03:
Then that's not enough.

[00:11:17] Speaker 04:
What page is that in the board's opinion?

[00:11:20] Speaker 03:
It starts on appendix of page 20 to 22.

[00:11:24] Speaker 03:
That's where they start doing the two-step process.

[00:11:26] Speaker 03:
And it goes throughout.

[00:11:27] Speaker 03:
And they talk about, during the claim construction process itself, they talk about obviousness.

[00:11:33] Speaker 03:
And that is just conflating and falling on top of this two-step process.

[00:11:37] Speaker 03:
But they would have done the claim construction first.

[00:11:40] Speaker 03:
have been fined and then turn to obviousness.

[00:11:43] Speaker 03:
So my point here is really that by conflating the two and giving a summary conclusion that even under your claim construction it would still be obvious, that is just not an appropriate way to conduct a claim construction period.

[00:11:57] Speaker 03:
In fact, they didn't give it any weight at all.

[00:12:00] Speaker 03:
The section configured to be processed by the security system processor, when in fact

[00:12:06] Speaker 03:
Both parties agreed that wasn't how the prior art operated.

[00:12:10] Speaker 03:
Both parties agreed the prior art did the processing at the mobile device, not at the server, not at the secure system processor.

[00:12:21] Speaker 03:
All the processing done relative to the claim happens at the mobile device.

[00:12:26] Speaker 03:
If they had given proper construction, then we would have been able to overcome

[00:12:32] Speaker 03:
I'm going to claim 19 and 20.

[00:12:36] Speaker 03:
If there's any questions, I'll reserve them.

[00:12:39] Speaker 03:
Thank you.

[00:12:42] Speaker 04:
Thank you, Your Honor.

[00:12:53] Speaker 01:
Good morning, Your Honors.

[00:12:54] Speaker 01:
I may please record Peter Aris on behalf of Director Fadal.

[00:12:59] Speaker 01:
The board in this case.

[00:13:01] Speaker 01:
addressed and resolved the issues that were presented to it in a manner that they were framed.

[00:13:08] Speaker 01:
Let me start first with the mirrored limitation in claims eight and nine, because I think it's helpful to go back and look at actually how that issue was teed up.

[00:13:20] Speaker 01:
The petitioner in this case consistently argued that the policies were transmitted from the security manager 130 in Groendal to the wireless gateway.

[00:13:35] Speaker 01:
And that's at APPX 129 in their petition.

[00:13:40] Speaker 01:
They did not propose that the claim required construction because, as this court just acknowledged, there is no

[00:13:50] Speaker 01:
There's a rule against imposing an order unless the claim language either explicitly or implicitly required it.

[00:13:59] Speaker 01:
And as a result, the petitioner didn't suggest or propose that the claim required an order.

[00:14:06] Speaker 01:
Now what we heard today is that the claim language was so clear that it did impose

[00:14:14] Speaker 01:
imposed an order of operations.

[00:14:17] Speaker 01:
And yet, the patent owner did not even propose a construction, which is often how these issues are teed up, is that it's the petitioner who is arguing for a narrow construction, which they didn't.

[00:14:31] Speaker 01:
And in fact, their patent owner response didn't really even address the order.

[00:14:36] Speaker 01:
It wasn't really until the surreply, and that's at APG,

[00:14:41] Speaker 01:
PX380, where they really sort of engage on this order of operations.

[00:14:48] Speaker 01:
Because they say the security policies of the gateway in Groendal mirror those on the server 102, not the other way around.

[00:15:01] Speaker 01:
So now they're making this implicit argument that no, in fact, the claims require just the opposite order.

[00:15:07] Speaker 01:
But even then, they don't make this claim construction argument.

[00:15:11] Speaker 01:
Not surprisingly, when this issue comes up at the oral hearing, the petitioner says the claims don't require an order of operations.

[00:15:19] Speaker 01:
And that is clearly the case.

[00:15:22] Speaker 01:
And we can talk about the merits of that if the court would like.

[00:15:28] Speaker 01:
But what I would say is, and as described in the brief, that claim construction, to the extent it really is one,

[00:15:35] Speaker 01:
is clearly supported by the specification in this case and in fact to adopt CUP's argument would actually exclude this update authority device 750 embodiment that's shown at column 13

[00:15:53] Speaker 01:
lines two through eight at APPX 70.

[00:15:57] Speaker 01:
So both, and we think that the language is clear even without the specification, but certainly that's another reason why the board's construction was correct in this case.

[00:16:11] Speaker 01:
As a result, that decision should be affirmed.

[00:16:15] Speaker 00:
So assuming the procedure by which the dispute was argued is, as you say, what was Cupp's opportunity to be heard on the order of steps?

[00:16:26] Speaker 00:
Was it not until the hearing?

[00:16:27] Speaker 01:
No, your honor.

[00:16:29] Speaker 01:
They had an opportunity in the patent owner response because the petition laid out exactly the sequence that the petition was relying on, mainly pushing these policies from the server to the wireless gateway.

[00:16:44] Speaker 01:
Certainly that was the opportunity for them if the claims were so clear to require the opposite order, that was an opportunity to raise that issue.

[00:16:54] Speaker 01:
And then again,

[00:16:55] Speaker 01:
in their cert reply, which they did, again, but making it more of a factual issue, but certainly could have made this claim construction argument at that point as well.

[00:17:04] Speaker 01:
And then as Judge Hughes says, to the extent that they felt blindsided at the oral hearing, certainly they could have requested to be heard at that time.

[00:17:17] Speaker 01:
So does that answer your question?

[00:17:20] Speaker 00:
Yes, it does.

[00:17:21] Speaker 00:
Related, though, the board is not contending that.

[00:17:24] Speaker 00:
if an unexpected, for the first time, claim construction dispute arises at the hearing, that the patentee can be expected to, on the fly, respond to it and then only hear that they lost about it in the final written decision.

[00:17:43] Speaker 01:
No, Your Honor, this court has made clear that parties are to be given notice and an opportunity to be heard on these issues.

[00:17:51] Speaker 04:
So what is the mechanism that they should have employed or would have employed here, if that was the situation was as they described it?

[00:17:58] Speaker 01:
Again, I would say that the correct response would have been in their patent owner response.

[00:18:04] Speaker 01:
If the claim language was that clear to them that these claims were acquired in order

[00:18:10] Speaker 01:
then they should have raised it in their patent owner response.

[00:18:14] Speaker 04:
Well, I think their answer is that they didn't know that you were taking the opposite position.

[00:18:19] Speaker 04:
They assumed that everybody was in agreement that you had requested a claim construction and raised it as a major kind of construction issue.

[00:18:27] Speaker 04:
I think that's what they are.

[00:18:28] Speaker 01:
I agree, Your Honor, but I think to the extent, again, I would say that the general rule, and this is in the court's Baldwin graphics versus Hebert case, 512, F3rd, 1338, the general rule is that claims don't require any order of operations.

[00:18:47] Speaker 01:
So with that in mind, they came forward with their theory, and this is at APPX 129, that Groendahl

[00:18:57] Speaker 01:
quote, security manager 130 may push policies that's underlying in their petition to the extent that there was any doubt about that.

[00:19:07] Speaker 02:
So is your argument that the petition, even though it didn't raise this as a client construction argument, their arguments

[00:19:15] Speaker 02:
contradicted on their face what they now say was the proper claim construction.

[00:19:21] Speaker 02:
So they should have known that they needed to say, oh, that doesn't work because it requires this order.

[00:19:28] Speaker 02:
And they could have either raised that as a claim construction argument or just this is the plain language so it doesn't show it.

[00:19:34] Speaker 02:
But it's not that they were surprised about their argument because

[00:19:40] Speaker 02:
it clearly had a different order than they contemplated.

[00:19:43] Speaker 02:
Exactly, Your Honor.

[00:19:45] Speaker 02:
And we see this in other cases.

[00:19:46] Speaker 02:
Did they respond to that in the patent owner's response, that ordering argument?

[00:19:50] Speaker 01:
No.

[00:19:50] Speaker 01:
They made kind of a different argument about whether it was configured in one place or another, but didn't really engage on that order.

[00:19:58] Speaker 01:
It wasn't until the cert reply where they finally latched onto this sort of precise sequence

[00:20:04] Speaker 01:
And then, as I said, that's why a final court was put on it at the oral hearing.

[00:20:11] Speaker 01:
But they had multiple opportunities to address this claim construction issue and just passed on it.

[00:20:20] Speaker 01:
If I could, I'd just like to turn briefly to the second issue, and that is this configured to be processed.

[00:20:28] Speaker 01:
or the board addressed the issues that were presented to it.

[00:20:33] Speaker 01:
And it did a thorough job and did not conflate the claim construction and the obviousness analysis.

[00:20:39] Speaker 01:
It dedicates seven or eight pages to the claim construction, both places within this.

[00:20:46] Speaker 04:
Yeah, but I think our problem, I mean, it does on the claim construction, but then it has this alternative holding.

[00:20:52] Speaker 04:
But even under the other claim construction, it would be OK.

[00:20:55] Speaker 04:
And there, they do refer to another section 3D5, right?

[00:21:00] Speaker 04:
So they don't have a lot of analysis right there.

[00:21:02] Speaker 04:
They cite to another portion of the opinion.

[00:21:05] Speaker 01:
That's true, Your Honor.

[00:21:07] Speaker 01:
And again, this is the way these issues were framed up by the parties, in part because there was an issue that's not present here because it was resolved in the prior appeal with the 164 patent that Judge Stark was on.

[00:21:24] Speaker 01:
But in that case, the issue was whether or not merely just providing the security information to the mobile device was providing a security service.

[00:21:36] Speaker 01:
And so a lot of the arguments ended up even in this case sort of being surrounded by that.

[00:21:43] Speaker 01:
But again, I would like to go back.

[00:21:46] Speaker 01:
I think the best place to start when analyzing what the board did in this case is to look

[00:21:53] Speaker 01:
Cupp's actual proposed construction in this case.

[00:21:58] Speaker 01:
And that's at APPX 286.

[00:22:00] Speaker 01:
And if you compare that construction, again, this was their argument about what the claim term meant, the entire term.

[00:22:10] Speaker 01:
They said it should be construed according to its plain or random meaning, which is, quote, configured to be processed.

[00:22:18] Speaker 01:
just literally repeated back the exact same language of the claim by the security system processor such that the security system implements security services for a coupled mobile device.

[00:22:32] Speaker 01:
So other than sort of rearranging the terms, didn't really impose anything material on the claim, except perhaps

[00:22:43] Speaker 01:
with respect to implements.

[00:22:46] Speaker 01:
And that was exactly one of the terms that the court explicitly construed.

[00:22:51] Speaker 01:
And they do not challenge that now on appeal.

[00:22:55] Speaker 01:
So they were given the process.

[00:22:58] Speaker 01:
They were due with respect to the claim construction.

[00:23:02] Speaker 01:
There hasn't been any arguments this morning on the substantial evidence to support that.

[00:23:08] Speaker 01:
But again, I think that the court

[00:23:11] Speaker 01:
The board's decision is clearly supported by substantial evidence, both with Groendahl's teaching and Dr. Jacobson's expert testimony on that.

[00:23:23] Speaker 01:
And I'm happy to answer any questions on the substantiality of that evidence or yield back my time.

[00:23:32] Speaker 04:
No further questions.

[00:23:32] Speaker 04:
Thank you.

[00:23:33] Speaker 01:
Thank you, Your Honors.

[00:23:42] Speaker 03:
Let me just touch on the issue my friend just brought up about that processing element on claims 19 and 20.

[00:23:52] Speaker 03:
It's not that we had a problem with the construction board used for implement security services for a mobile device.

[00:23:59] Speaker 03:
That was from claim one.

[00:24:01] Speaker 03:
The problem was they completely ignored the configure to be processed by the security system processor, which was added to claims 19 and 20.

[00:24:09] Speaker 03:
It wasn't in claim one.

[00:24:10] Speaker 03:
They used the same analysis for claim one with the different 19 and 20.

[00:24:14] Speaker 03:
And they claimed claim instruction for one as it did 19 and 20.

[00:24:18] Speaker 03:
They did not add any weight to the added language.

[00:24:21] Speaker 03:
That is the key issue here.

[00:24:23] Speaker 03:
If you look at the actual language of 19 and 20, they are different claims.

[00:24:27] Speaker 03:
That's why we're not appealing claim one, because we didn't have a problem with the claim instruction.

[00:24:30] Speaker 03:
We do have a problem when they ignore the entire first part of that claim element, where it's configured to be processed by the security system processor.

[00:24:39] Speaker 03:
Second, with respect to the Tamir language, that was brought up in our cert reply.

[00:24:48] Speaker 03:
The counsel correctly pointed out, and that was pointed out in the final written decision as well.

[00:24:53] Speaker 03:
When we recognize where they're arguing that position on the petition, they did not have a claim structure on that issue.

[00:24:59] Speaker 03:
They kind of glossed over claims 8 and 17.

[00:25:02] Speaker 03:
And when they came back in their reply brief, we noticed what they were doing.

[00:25:05] Speaker 03:
So we brought the argument up at that point.

[00:25:08] Speaker 03:
We addressed it in our papers before the oral argument.

[00:25:12] Speaker 03:
And the first time it came up from the trend was during oral argument.

[00:25:16] Speaker 03:
And that's what the board relied upon.

[00:25:18] Speaker 03:
So I just want to make sure that those points are very clear.

[00:25:21] Speaker 00:
Unless, for example, for- Why isn't that a sufficient opportunity to be heard, both in your patent-owner response and, as you say, in your cert-reply, and then at the hearing?

[00:25:32] Speaker 03:
Well, it didn't become apparent as to what the position they were taking on things at 817.

[00:25:38] Speaker 03:
until the patented response, there was a complete silent on this issue in the petition.

[00:25:44] Speaker 00:
So why is that not sufficient, even if we took that as the right characterization?

[00:25:48] Speaker 03:
Well, it's not sufficient because the claim instruction they brought up, the not ordered out of operation, that wasn't really brought up.

[00:25:56] Speaker 03:
It was the way they're construing that the claim was brought up.

[00:25:59] Speaker 03:
But that construction that the board actually landed on that was not an order of operation was brought up for the very first time.

[00:26:05] Speaker 03:
in a raw argument.

[00:26:06] Speaker 03:
And when we think under Dell and Qualcomm, that's just inappropriate.

[00:26:09] Speaker 03:
Thank you, Your Honor.

[00:26:11] Speaker 04:
Appreciate your time.