[00:00:00] Speaker 00:
Our next case is gesture technology partner versus Apple et al., 2023-1463.

[00:00:09] Speaker 00:
You're ready when you are, Mr. Carr.

[00:00:15] Speaker 01:
Good morning.

[00:00:16] Speaker 01:
It may please the court, Eric Carr, on behalf of gesture technology.

[00:00:19] Speaker 01:
I'd like to start with the three issues that are entitled to a de novo review, and then I'll explain why the board lacks substantial evidence to find unpatentability.

[00:00:30] Speaker 01:
For all the claims of the 079 patent, the board had properly construed timing of the light source during the performance of the gesture.

[00:00:39] Speaker 01:
The light source must be on for the duration of the gesture performed so the camera can take a picture.

[00:00:45] Speaker 03:
Some of these gesture cases were argued on Wednesday of this week also before a different panel.

[00:00:52] Speaker 03:
Yes, Your Honor.

[00:00:54] Speaker 03:
To what extent did those cases raise the same issues as we have here today?

[00:01:00] Speaker 03:
For example, the constant contention.

[00:01:04] Speaker 03:
Is that the same issue in the Wednesday cases as here?

[00:01:10] Speaker 01:
Your Honor, it's a completely different issue where there is some overlap that deals with the Numizaki reference.

[00:01:18] Speaker 01:
Judge Moore had some comments about the Numizaki reference that overlapped, but as far as this 079 patent, this illumination and how long it occurs, that was never discussed.

[00:01:33] Speaker 03:
Okay.

[00:01:34] Speaker 03:
How many of these gesture cases are there floating around?

[00:01:39] Speaker 01:
You have there's seven this week for argument, and I believe there are two more that may come up from appeals of re exams Okay, are they related the ones that may come up do they have any?

[00:01:54] Speaker 01:
Overlapping or similar issues to the ones we had today No, they deal with the two patents that were on Wednesday, so that doesn't mean that

[00:02:09] Speaker 01:
Yes, I'm hoping to get to that after the claim construction, if I may.

[00:02:22] Speaker 01:
On the face of the patent, the abstract starts with a method for determining a gesture illuminated by a light source, and then column three of the patent

[00:02:33] Speaker 01:
States the light from below such as provided by the light source could be used to illuminate the finger that typically looks bright under such illumination.

[00:02:42] Speaker 01:
It also notes that the illumination is directed concentrated in an area where the finger is typically located such as the work volume one is 170.

[00:02:50] Speaker 01:
If the light is a sufficient spectral content the natural flesh tone of the finger can be observed and recognized by use of the color TV cameras.

[00:02:58] Speaker 01:
So column three is talking about the finger, which is the gesture.

[00:03:02] Speaker 01:
It's talking about how there needs to be illumination on the gesture.

[00:03:08] Speaker 01:
And besides the intrinsic evidence that shows that the illumination needs to occur, there is extrinsic evidence from patent owner's expert, Mr. Ochi-Grosso, that upon that a procedure would understand that the disclosure to mean the right source illuminates the gesture while the gesture is performed.

[00:03:28] Speaker 01:
And that's in Appendix 13A.

[00:03:38] Speaker 03:
And I'm sorry, Your Honor.

[00:03:39] Speaker 03:
Why isn't sufficient that there's a light source when the picture is being taken?

[00:03:48] Speaker 01:
Because the claim requires the light source to be illuminated.

[00:03:55] Speaker 03:
Why?

[00:03:57] Speaker 03:
Who cares whether the light source is on when the picture is not being taken?

[00:04:03] Speaker 01:
so that the finger that's described in the 079 patent can be seen better.

[00:04:12] Speaker 03:
Well, who cares whether it's seen better, except when the picture's being taken.

[00:04:20] Speaker 01:
That's how the gestures determine.

[00:04:23] Speaker 01:
Claim 1 is directed to the determination of a gesture, and the light helps facilitate that.

[00:04:39] Speaker 01:
So claim three, also there's a claim construction issue.

[00:04:47] Speaker 01:
The final written decision, the board had properly construed the operation of light source again.

[00:04:54] Speaker 01:
Dependent three recites in part wherein the light source includes a plurality of white emitting diodes.

[00:05:01] Speaker 01:
And that's at appendix 44.

[00:05:03] Speaker 01:
And there's no reasonable dispute that figure three shows the two LED light sources.

[00:05:11] Speaker 01:
And by having the multiple LEDs in that light at the same time, the object, again, the finger performing the gesture will appear brighter, which increases the accuracy of the gesture recognition.

[00:05:26] Speaker 01:
And again, this is supported by extrinsic evidence from Mr. Ochiagosho.

[00:05:34] Speaker 01:
He states, if FACETA would interpret Claim 3 to require the multiple LEDs of the light source to be active at the same time, and including the additional LEDs in the light source that are not used for elimination would be impracticable, because doing so would only increase circuit complexity and the cost of the light source with no additional benefit.

[00:05:57] Speaker 02:
If you wanted to claim light sources that were constantly illuminated, why didn't you put that word in the claim?

[00:06:08] Speaker 01:
It's all throughout the spec.

[00:06:13] Speaker 02:
That's not answering my question.

[00:06:15] Speaker 02:
I mean, this is not normally the way we do claim construction.

[00:06:18] Speaker 02:
Unless you have some specific lexicography or something like that, just because the embodiments show that it's constantly illuminated is not enough to confine very broad language into claims.

[00:06:35] Speaker 02:
I don't see anything in those claims, either in the light source ones or the plurality ones that say they have to be constantly on.

[00:06:45] Speaker 01:
They're not constantly on.

[00:06:46] Speaker 01:
The word illuminated at the end of claim one, Your Honor, states is modifying gesture performed, which is earlier in the claim recitation, and it's discussing when the camera is being used.

[00:07:02] Speaker 01:
So the only straightforward interpretation of claim one would be that the illumination occurs when the gesture's performed, and that's when the camera's taking pictures to determine the gesture.

[00:07:15] Speaker 03:
It doesn't have to be on when the gesture is being performed.

[00:07:20] Speaker 03:
It only has to be on when the gesture is being photographed.

[00:07:27] Speaker 01:
That's correct.

[00:07:37] Speaker 01:
And if I can move to the last issue on the Nova review, we're challenging the patent office subject matter jurisdiction because the 7-9 patent expired on November 3rd, 2019, long before the IPR petition was filed on May 18th, 2021.

[00:07:55] Speaker 01:
And under oil states, a patent grant is the grant of a public franchise.

[00:08:00] Speaker 01:
The patent office does not have jurisdiction over

[00:08:05] Speaker 01:
a petition for IPR against an expired patent because the public franchise no longer... So you're still suing on the patent?

[00:08:13] Speaker 01:
Yes, Your Honor.

[00:08:14] Speaker 00:
So you're still suing on the patent, and it can't be challenged in the patent?

[00:08:20] Speaker 01:
Correct, but it can be challenged in Article III courts.

[00:08:23] Speaker 02:
Where did Quill State say that?

[00:08:27] Speaker 02:
I mean, that makes no sense.

[00:08:28] Speaker 02:
The whole point of these IPRs is if somebody gets sued on patent and district court, they can resort to the PTAB to go through the IPR process to question the validity of a patent.

[00:08:41] Speaker 02:
They don't care if it's expired or not.

[00:08:43] Speaker 02:
They're still getting sued on it.

[00:08:46] Speaker 01:
Correct, Your Honor.

[00:08:47] Speaker 01:
And our position is they should challenge validity in Article III courts, because after the patent expired, there's no more public franchise

[00:08:57] Speaker 01:
that can be brought under WellSafe.

[00:08:58] Speaker 01:
WellSafe doesn't explicitly state it, but it does go through the reasoning and logic that we're applying in each of these gesture cases.

[00:09:07] Speaker 02:
I mean, the whole point of that is just that it doesn't have to go through a Seventh Amendment trial because it's a public franchise.

[00:09:15] Speaker 02:
It doesn't mean that once it's expired, it can't go through and be identified.

[00:09:23] Speaker 02:
This argument baffles me.

[00:09:26] Speaker 00:
Was this argument before the court in the cases two days ago?

[00:09:32] Speaker 01:
It was in the briefing, Your Honor, but nobody discussed it during oral argument.

[00:09:38] Speaker 00:
It is at issue.

[00:09:40] Speaker 01:
It is at issue and it's preserved.

[00:09:44] Speaker 01:
And I'd just like to note in the Cascades projection case, this court stated the administrative state expands.

[00:09:52] Speaker 01:
As the administrative state expands and non Article 3 tribunals adjudicate more disputes under the cover of public rights doctrine, there must be vigilance in protecting Article 3 jurisdiction.

[00:10:04] Speaker 01:
Further support for our reasoning.

[00:10:08] Speaker 01:
And then, if I may, I move on to the...

[00:10:16] Speaker 01:
substantial evidence argument.

[00:10:17] Speaker 01:
The board's finding that independent claims 111 and 21 of the 079 are unpardonable over Numizaki and the knowledge of a facetor not supported by substantial evidence.

[00:10:30] Speaker 00:
Not knowledge of whom?

[00:10:32] Speaker 01:
A facetor person having ordinary skills.

[00:10:36] Speaker 00:
Good to speak English rather than acronyms.

[00:10:39] Speaker 01:
Yes, Your Honor.

[00:10:42] Speaker 01:
The board found that Numizaki's lighting unit is the claimed light source and Numizaki's hand gesture is the claimed gesture.

[00:10:50] Speaker 01:
But Numizaki expressly teaches that the lighting unit 101 does not emit the light when the second photo detection unit 110 is in a photo detecting state.

[00:11:01] Speaker 01:
So the difference between the 079 patent and Numizaki is that 079 patent always has illumination of the gesture, whereas Numizaki turns off the light for the portion.

[00:11:15] Speaker 01:
And to the extent the board equated Numizaki's photo detection unit to the photo detection sensor unit, that still does not satisfy the requirements of Claim 1 because Numizaki discloses

[00:11:30] Speaker 01:
that the first photo-detection unit detects the optical image formed on the photo-detection plane.

[00:11:38] Speaker 00:
You're right to hear about it, Tom.

[00:11:40] Speaker 00:
You can continue or save it as you would.

[00:11:44] Speaker 01:
Just one more point, Your Honor.

[00:11:45] Speaker 01:
If by habit, the light always on in Numasaki would render Numasaki inoperable, so the Board lacks substantial evidence to find the obviousness.

[00:11:57] Speaker 01:
Thank you.

[00:11:59] Speaker 00:
So that's all the time.

[00:12:05] Speaker 00:
Next one.

[00:12:10] Speaker 04:
Thank you, Your Honors.

[00:12:12] Speaker 04:
Join us along for Apple.

[00:12:14] Speaker 04:
I'd like to just briefly confirm a couple concessions I heard from Gesture Technologies Council.

[00:12:20] Speaker 04:
So to your questions, Judge Dagg, I heard counsel confirm that there is no requirement for constant lighting during the performance of the gesture.

[00:12:29] Speaker 04:
The context of the patent is the determining of the gesture, and the determining happens, as your honor recognizes, through the capturing of images.

[00:12:38] Speaker 04:
And there's no requirement of constancy within the plain language of the claims themselves.

[00:12:45] Speaker 04:
Beyond that, Judge Hughes, you are correct.

[00:12:48] Speaker 04:
There is no word in the claim about duration or timing.

[00:12:53] Speaker 04:
It's simply not written in.

[00:12:55] Speaker 04:
And of course, Gesture Technologies Council has not argued in the briefs, nor hear an argument.

[00:13:02] Speaker 04:
Anything about the board's analysis about the word comprising, which makes this open-ended, which is another independent basis to affirm on the claim construction issue.

[00:13:13] Speaker 04:
We would like to rest on our briefs on the waiver issue and as well as the merits of the substantial evidence analysis unless your honors have questions on that.

[00:13:25] Speaker 00:
You want to talk about jurisdiction?

[00:13:27] Speaker 04:
Sure.

[00:13:27] Speaker 04:
So as your honors are recognizing, nothing in oil states points to the conclusion that gesture technologies council is drawing from it.

[00:13:37] Speaker 04:
Oil states confirms the principle that patents are grants of a public franchise.

[00:13:43] Speaker 04:
And as such, the patent office has jurisdiction to review that past grant, especially when the patent owner, as here, is asserting damages against another, i.e.

[00:13:55] Speaker 04:
exercising the exclusionary right of that grant a monopoly against another.

[00:14:00] Speaker 04:
The damages request in the Article III courts is downstream from the antecedent question of whether they rightfully were granted that public franchise in the first place.

[00:14:10] Speaker 04:
So there's nothing within the statutes, within oil states, that would compel the rationale that they're drawing from it.

[00:14:18] Speaker 04:
In fact, it points

[00:14:19] Speaker 04:
in the opposite direction.

[00:14:21] Speaker 04:
And Judge Dyk, in your decision in Sony, you recognize in footnote one that the board had jurisdiction to review the expired patents at issue in that case.

[00:14:30] Speaker 04:
We also cited a case, Waisika, in our brief, where upon institution, those patents were already expired, and the board had jurisdiction over those patents.

[00:14:42] Speaker 04:
So with that, Your Honors, I would respectfully request that the court affirm

[00:14:47] Speaker 00:
No one loses points by not using up all their argument time.

[00:14:51] Speaker 04:
Thank you.

[00:14:54] Speaker 00:
Mr. Carr has some more battle time.

[00:15:00] Speaker 01:
Your Honor, with regard to the Sony case, that case is different because the patents in this case expired before the petitions were filed with the patent office.

[00:15:11] Speaker 02:
I still don't understand why that makes any difference.

[00:15:14] Speaker 02:
It seems to me that the

[00:15:16] Speaker 02:
The logical conclusion of your argument being that there are two categories of patents.

[00:15:21] Speaker 02:
Ones that are not expired are public franchises, and ones that are expired are private property rights that have to go through the Seventh Amendment jury trial.

[00:15:31] Speaker 02:
But oil states doesn't say anything about that, does it?

[00:15:37] Speaker 01:
Correct, Your Honor, all the states does not.

[00:15:39] Speaker 01:
We're just supplying it.

[00:15:41] Speaker 02:
That's not even logical to suggest that there's two different kinds of property rights and patents.

[00:15:46] Speaker 02:
It's the same property right.

[00:15:48] Speaker 02:
Whether it's expired or not, it's a public franchise.

[00:15:52] Speaker 02:
How would it change from a public franchise to not a public franchise just by nature of the expiration of the patent?

[00:16:00] Speaker 01:
Because once the patent expires, you can't get money damages under 35 USC 284.

[00:16:06] Speaker 02:
You can, if you file a claim within the statute of limitations, but only for the six years.

[00:16:17] Speaker 02:
It's not really answering my question.

[00:16:18] Speaker 02:
You're still suggesting that there are two different types of patents in terms of how they're viewed in property rights.

[00:16:28] Speaker 02:
Do you have any support for that action?

[00:16:36] Speaker 01:
The right to get damages is a private right, it's not a public right.

[00:16:48] Speaker 01:
And oil states, they discuss public franchises such as toll bridges and all these tangible things where you can still collect ongoing payment.

[00:16:58] Speaker 01:
Once the patent's expired, you're not entitled to the reasonable royalty anymore.

[00:17:04] Speaker 03:
Once the patent expires, you're not entitled to a reasonable royalty, huh?

[00:17:12] Speaker 01:
If the patent expired yesterday, I can't collect damages tomorrow for the same patent.

[00:17:16] Speaker 03:
But you can collect a reasonable royalty for past acts.

[00:17:20] Speaker 01:
Correct, Your Honor.

[00:17:23] Speaker 01:
Real quick, back to Numizaki, the gestures only illuminated half the time, one picture while the light's on and one picture when the light's off, and those images are subtracted.

[00:17:35] Speaker 01:
So Numizaki does not illuminate the entire time the gestures perform.

[00:17:41] Speaker 01:
And lastly, with the claim construction issue, in our gray brief at page 13, we discuss the Axonics case at 75-4-1374.

[00:17:52] Speaker 01:
It basically states when the board adopts a new construction in the final written decision,

[00:18:04] Speaker 01:
You know, the respondents need to have reasonable notice of the change of the opportunity to present argument under the new theory.

[00:18:10] Speaker 01:
And in this case, the final written decision, the board adopted a new construction that said the illumination is only on for part of the time.

[00:18:18] Speaker 01:
Thank you, Your Honors.

[00:18:21] Speaker 00:
Thank you, Counsel.

[00:18:23] Speaker 00:
The case is submitted.