[00:00:00] Speaker 04:
The last case this morning is Google versus Neonode, 2023, 1638, Mr. Tucker.

[00:00:14] Speaker 04:
This is about different claim limitations, lighting versus flicking away.

[00:00:22] Speaker 00:
Yes, Your Honor, it is.

[00:00:24] Speaker 00:
Good morning, and may it please the Court.

[00:00:26] Speaker 03:
Was this another amendment that occurred during prosecution?

[00:00:29] Speaker 00:
This claim term was amended, Your Honor.

[00:00:32] Speaker 00:
During prosecution, it was actually added six years after the filing of the application, six years into the prosecution of this patent.

[00:00:44] Speaker 00:
And so what the board did when it construed the claim term gliding away is it did not analyze the specification and it instead jumped to the prosecution history and to general dictionary definitions.

[00:01:00] Speaker 00:
to determine that the claimed gliding away excluded specific gestures such as dragging and flicking.

[00:01:09] Speaker 00:
But if we look to a proper application of Phillips, gliding away cannot be construed that narrowly.

[00:01:16] Speaker 00:
That's because, again, the term was added six years into prosecution.

[00:01:20] Speaker 00:
But if you look at the specification, it only describes activating a function based on general movement along the screen.

[00:01:30] Speaker 00:
It doesn't describe any specifics beyond that general movement.

[00:01:35] Speaker 03:
So what you're describing to us may or may not be an effective written description issue.

[00:01:42] Speaker 03:
I mean, the claim was amended to say gliding.

[00:01:46] Speaker 03:
So what relevance does it have in the spec other than under the rubric of written description?

[00:01:54] Speaker 00:
So I think we can look to Phillips here that says that oftentimes the prosecution history lacks the clarity of the specification because it's this ongoing exchange.

[00:02:05] Speaker 00:
And it's less important.

[00:02:06] Speaker 00:
Let's assume there's no ambiguity.

[00:02:07] Speaker 03:
I mean, we've got to find the ambiguity, right?

[00:02:11] Speaker 03:
If the claim term is clear.

[00:02:14] Speaker 03:
Doesn't that begin in then?

[00:02:16] Speaker 03:
Can I ask you, wasn't there other prior art you could have done?

[00:02:19] Speaker 03:
I mean, when we were talking about Hirschberg about an hour and a half ago, doesn't Hirschberg do gliding?

[00:02:26] Speaker 00:
So we use the Robertson reference in this IPR.

[00:02:31] Speaker 00:
Usually in an IPR proceeding, you don't use a piece of prior art that was used before the board in prosecution.

[00:02:40] Speaker 00:
So we did not use Hirschfield.

[00:02:44] Speaker 00:
But that said, I think the prosecution history is ambiguous.

[00:02:49] Speaker 00:
This prosecution history took nine years.

[00:02:53] Speaker 00:
Claim one was amended nine times, including in the amendment that NeoNode points to for its narrow interpretation of gliding, a total rewrite of claim one.

[00:03:04] Speaker 00:
So it wasn't a matter of simply replacing

[00:03:09] Speaker 00:
moving with gliding, like NeoNode says.

[00:03:11] Speaker 00:
If you look at the appendix 2135 to 2136, almost every word in claim one after the preamble is either added or removed in that amendment.

[00:03:25] Speaker 00:
There were only 15 unique words that remained after that amendment.

[00:03:30] Speaker 00:
So it's not like the applicant said, we used to say moving, and now we say gliding.

[00:03:35] Speaker 00:
I think there's a second ambiguity in the prosecution history, or at least a reason why it doesn't support the board's construction that this can't be a drag or a flick, based on specific gesture mechanics, such as smoothness or continuity, like the board said.

[00:03:53] Speaker 00:
If you look when the applicant introduced the amendment and subsequently tried to distinguish the gliding limitations for drag and drop references, like Hoshino and Conrad,

[00:04:05] Speaker 00:
The distinction was not, oh, gliding has to be smooth, but dragging is slower.

[00:04:11] Speaker 00:
The distinction was, in a drag and drop, the icon moves with the finger, and in the application, as it was currently claimed, the finger moved away from the touched location, as opposed to dragging an icon with it.

[00:04:26] Speaker 00:
So that was the distinction.

[00:04:27] Speaker 00:
It had nothing to do with the mechanics of what a glide supposedly is.

[00:04:33] Speaker 00:
I think there's one additional point of ambiguity in the prosecution history.

[00:04:38] Speaker 00:
It's the part that NeoNode latches onto several times in its brief.

[00:04:43] Speaker 00:
When the applicant added the gliding term, they introduced it as generally corresponding to, quote, swiping, rubbing, gliding, and sliding.

[00:04:57] Speaker 00:
And the applicant argues, and the board agreed, that,

[00:05:01] Speaker 00:
That evinced some intent to claim what is today known as swiping.

[00:05:07] Speaker 00:
But that begs the question, why is swiping included now?

[00:05:12] Speaker 00:
And the other verbs in that list, exemplary list, are not.

[00:05:17] Speaker 00:
Rubbing is not a long, continuous, smooth motion, especially in the context of a screen.

[00:05:26] Speaker 00:
If you're rubbing the screen,

[00:05:28] Speaker 00:
you're not gliding the way Neonode wants to interpret it in a smooth, continuous motion.

[00:05:36] Speaker 00:
You're moving back and forth quickly.

[00:05:39] Speaker 00:
And so there is no clarity in the prosecution history to support this narrow understanding of gliding based on gesture mechanics.

[00:05:48] Speaker 00:
Again, when the applicant focused on the gliding term to distinguish the references, it was to distinguish something else.

[00:05:56] Speaker 00:
Like I mentioned with the drag and drop,

[00:05:58] Speaker 00:
but also with the Carlson reference, which wasn't a drag and drop, the distinction was in Carlson, it didn't matter where you started the gesture, but in the application, you had to start the gesture at a specific location.

[00:06:12] Speaker 00:
And so those were the distinctions that the applicant was making with respect to gliding and not based on some gesture mechanics.

[00:06:22] Speaker 00:
And so again, so because it's ambiguous, we look

[00:06:26] Speaker 00:
like Philip says, to the specification where we were supposed to start the analysis, which neither the board nor Neo know do.

[00:06:35] Speaker 00:
And the specification twice says that the present invention activates functions when touch screens sense, quote, movement of an object along the screen.

[00:06:46] Speaker 00:
And then when it describes the figure two embodiment, it again explains that the functions are activated when the touch screen detects, quote, a movement

[00:06:56] Speaker 00:
And so nothing in the prosecution history undoes that broad guidance from the specification.

[00:07:02] Speaker 00:
And so it cannot narrow the term beyond what is in the spec.

[00:07:09] Speaker 02:
Doesn't it at least reference movement going from a certain starting point to another point or being on a certain part of the screen?

[00:07:17] Speaker 02:
There's some narrowing from just all types of movement.

[00:07:22] Speaker 00:
It does, Your Honor.

[00:07:24] Speaker 00:
The figure two and the explanation talks about touching down at one point and moving to another point along the screen, but it doesn't say anything about continuity, about speed, about length, any of those adjectives or adverbs that the board put into its construction of that term, and that's where the board got it wrong.

[00:07:51] Speaker 02:
Do you think there is a plain and ordinary meaning of a glide to one of skill and the art?

[00:07:59] Speaker 00:
In the context of the 879 pad, yes, it's movement along the screen.

[00:08:04] Speaker 00:
And I think that's what Phillips... Yeah, what's your support for that?

[00:08:08] Speaker 00:
It's the abstract columns two, lines one through 15, which both say the present invention activates functions when the touchscreen senses movement, and it's

[00:08:20] Speaker 00:
column for line seven through twelve, which describes figure two in the context of movement.

[00:08:26] Speaker 00:
And I think that's actually the fundamental difference between our argument and Neonode's and the board's.

[00:08:33] Speaker 00:
Neonode's starts with dictionary definitions.

[00:08:36] Speaker 00:
Phillips says you can't do that.

[00:08:38] Speaker 00:
We don't do that anymore after Phillips overruled Texas Digital.

[00:08:42] Speaker 00:
It's not just what a word means in the context of a general dictionary definition.

[00:08:47] Speaker 00:
It's the plain and ordinary meaning of the word in the context of the specification.

[00:08:53] Speaker 00:
And here the specification uniformly supports that it's movements along the screen.

[00:08:58] Speaker 00:
And that's the problem with the dictionary definitions in this case.

[00:09:02] Speaker 00:
Phillips says, heavy reliance on dictionaries, divorced from the

[00:09:06] Speaker 00:
intrinsic evidence risks transforming the meaning of the claim term to the artisan into the meaning of the term in the abstract.

[00:09:14] Speaker 00:
And that's what all of those dictionary definitions and Neonode's examples below to the court are.

[00:09:20] Speaker 00:
Neonode talks about a flick in the context of flicking a finger or when shooting a basketball, flicking your wrist.

[00:09:27] Speaker 00:
That is completely divorced from the context of this application, which is what happens when a stylus or a thumb moves along the screen.

[00:09:35] Speaker 00:
And so we'd submit that those extrinsic definitions are not relevant to this analysis.

[00:09:40] Speaker 00:
And we have to instead properly tether the claim construction analysis to the specification.

[00:09:48] Speaker 03:
What an odd case, isn't it?

[00:09:49] Speaker 03:
I mean, are there any cases?

[00:09:50] Speaker 03:
Do you know of any cases like this?

[00:09:51] Speaker 03:
I mean, they amended the specification you're relying on fairly effectively, uses the word movement.

[00:10:00] Speaker 03:
But that's the word they took out and substituted with colliding, right, in their amendment.

[00:10:05] Speaker 03:
It's an odd situation.

[00:10:09] Speaker 00:
That is right, Your Honor.

[00:10:10] Speaker 00:
And as we mentioned in the brief, that came in 2008 after some of the accused systems were released.

[00:10:18] Speaker 00:
It is odd.

[00:10:19] Speaker 00:
It is curious why that happened that way.

[00:10:22] Speaker 00:
And I think that also goes to an error in the board's decision on that same point, which is the board found that Neonode was trying to capture what is today known as swiping.

[00:10:34] Speaker 00:
But that's not the analysis.

[00:10:36] Speaker 00:
We're supposed to be looking back at what was known to once build in the art in 2002 when the application was filed, not in 2008 when technology and terminology turned a certain way and Neonode tried to capture it.

[00:10:53] Speaker 00:
So it is an odd case, but I think some of that historical context may explain some of the oddities.

[00:11:02] Speaker 02:
On your construction, if there were a gesture that involved repeatedly tapping, multiple taps for some reason, that would be gliding in your reading, right, if we went with your construction?

[00:11:15] Speaker 02:
Because it's movement.

[00:11:16] Speaker 00:
I don't think it's movement along the screen.

[00:11:18] Speaker 00:
Movement along the screen.

[00:11:19] Speaker 00:
I think it would be a tap, and then you would move not along the screen, and you would tap, and you would move not along the screen.

[00:11:26] Speaker 00:
So no, I don't think that would meet our construction.

[00:11:35] Speaker 00:
Unless the panel has other questions, I will reserve the time that I have.

[00:11:39] Speaker 00:
Thank you.

[00:11:40] Speaker 00:
Thank you.

[00:11:45] Speaker 04:
Mr. Graves.

[00:11:46] Speaker 01:
Thank you, Your Honor.

[00:11:49] Speaker 01:
The claim language here is clear and unambiguous, gliding away.

[00:11:54] Speaker 01:
In fact, the specific language is, at appendix 49, the object gliding along the touch-sensitive area away from the touched location.

[00:12:04] Speaker 01:
Neonode argued in the p-tab and argues here that gliding away should be given its ordinary meaning.

[00:12:10] Speaker 01:
The board agreed, made findings of fact as to what the ordinary meaning of the term is, and found that Robertson's flick gesture is different from the gliding gesture required by claim one.

[00:12:22] Speaker 01:
That should really be the end of it.

[00:12:24] Speaker 01:
Google did not contest that the ordinary meaning of gliding is what the board says it is.

[00:12:30] Speaker 03:
What about the specification?

[00:12:33] Speaker 01:
The specification here gives

[00:12:35] Speaker 01:
a perfect example of gliding.

[00:12:37] Speaker 01:
And that's in Figure 2.

[00:12:39] Speaker 01:
And what you will see, that's at Appendix 43.

[00:12:47] Speaker 01:
What you'll see is the user's thumb in the first position on the display at the bottom of the screen.

[00:12:57] Speaker 01:
And then in the second position, it has moved up

[00:13:01] Speaker 01:
toward the top of the screen, still clearly on the display.

[00:13:06] Speaker 03:
That is an example, an illustrative example, right here, of... Yeah, but I guess the confusion for me, I don't know if confusion is the right word, but in the specification describing finger two, they refer to that as movement.

[00:13:22] Speaker 03:
And movement is the word that you deleted from the claim and substituted gliding for.

[00:13:27] Speaker 01:
Well, they actually know, they don't, I don't believe

[00:13:32] Speaker 01:
They refer to that.

[00:13:34] Speaker 01:
Let's see.

[00:13:35] Speaker 03:
Maybe I'm wrong.

[00:13:36] Speaker 03:
I'm looking at column four.

[00:13:38] Speaker 01:
Yes.

[00:13:39] Speaker 01:
Yes.

[00:13:40] Speaker 01:
OK.

[00:13:40] Speaker 01:
So that is described as a movement, as it is, right?

[00:13:47] Speaker 03:
And that's what the claim originally said, right?

[00:13:49] Speaker 01:
Originally, right.

[00:13:51] Speaker 01:
But then it was amended to drop movement and proceed with the narrower recitation of gliding

[00:14:01] Speaker 01:
along the display away from the touch location.

[00:14:04] Speaker 03:
I guess the confusion I have is you're pointing to figure two, which the spec describes as movement, and you're saying that is gliding.

[00:14:13] Speaker 03:
Well, the spec is correct and accurate.

[00:14:17] Speaker 03:
Why did you have to substitute gliding for movement?

[00:14:21] Speaker 01:
Well, so an applicant is entitled to claim more narrowly than the disclosure and the specification.

[00:14:29] Speaker 01:
as long as there's written description support for it.

[00:14:32] Speaker 01:
And so the reason figure two is significant is because figure two provides written description support for the species of gliding within the broader genus of movement.

[00:14:46] Speaker 03:
So... Is gliding used in the specification?

[00:14:50] Speaker 01:
I don't believe the word gliding appears in the specification, but there's an illustration of a gliding motion, right?

[00:14:59] Speaker 01:
A gliding operation.

[00:15:00] Speaker 03:
But you took my point right, that you say there's an illustration of gliding, but the illustration of gliding is referred to in the specification as an illustration of movement.

[00:15:11] Speaker 01:
Absolutely, Your Honor.

[00:15:12] Speaker 01:
And we do not contest that gliding is a species within the larger genus of movement.

[00:15:18] Speaker 01:
But again, an applicant can claim more narrowly than the disclosure and the specification, so long as there's written description support.

[00:15:26] Speaker 01:
And the illustration, visual illustration of what we see here in figure two depicts the gliding species within the broader genus of movement.

[00:15:39] Speaker 01:
So there is written description support in the specification for gliding.

[00:15:45] Speaker 01:
And that's really what their entire argument boils down to, because the ordinary meaning, to go to your point, Judge Stark, the ordinary meaning of gliding

[00:15:56] Speaker 01:
was addressed by the board, and the board made a finding crediting Dr. Rosenberg's testimony and evidence and the dictionary definitions, extrinsic, yes, but entirely proper within the context of this claim to submit to the board to explicate the ordinary meaning of gliding, because this is not a technical term, it's a term that anyone can understand.

[00:16:23] Speaker 01:
the board credited NeoNodes evidence, not just dictionary definitions, also excerpts from documents showing how Google's own developers understand the terms flick and swipe and so on.

[00:16:41] Speaker 01:
There was a range there.

[00:16:43] Speaker 01:
Some of the dictionary definitions and arguments were prior to the priority date of the patent.

[00:16:50] Speaker 01:
Some of them were subsequent, but the board found that

[00:16:52] Speaker 01:
Google had failed to proffer any evidence suggesting that the meanings of any of these terms had changed in the interim.

[00:17:01] Speaker 01:
So there's copious evidentiary support for the board's finding regarding the ordinary meaning of gliding and of clicking.

[00:17:08] Speaker 03:
Have you seen that Hirschberg discloses gliding?

[00:17:13] Speaker 01:
Hirschberg discloses, well, I would say that the examiner

[00:17:21] Speaker 01:
contended that Hirschberg disclosed a type of gliding.

[00:17:26] Speaker 01:
Yes.

[00:17:27] Speaker 01:
Hirschberg, of course, is not at issue in this IPR.

[00:17:31] Speaker 01:
I understand.

[00:17:34] Speaker 02:
Can we go back to plain and ordinary meaning?

[00:17:38] Speaker 02:
I might be a little confused.

[00:17:41] Speaker 02:
I would have thought under Phillips, normally we think of we get the plain and ordinary meaning

[00:17:47] Speaker 02:
from something other than extrinsic evidence.

[00:17:51] Speaker 02:
But what you're suggesting happened here and you're defending it is that the board starts with the extrinsic evidence to determine a plain and ordinary meaning and then I guess looks to the intrinsic evidence to see if something departs from it.

[00:18:03] Speaker 02:
Is that what you're saying happened?

[00:18:05] Speaker 01:
No, that's not it at all.

[00:18:07] Speaker 01:
The board considered the extrinsic evidence in conjunction with the intrinsic record, which was at issue and argued about before the board.

[00:18:21] Speaker 01:
So there's no indication here that the board is using extrinsic evidence in a manner divorced from the intrinsic record.

[00:18:29] Speaker 02:
But how do we know

[00:18:31] Speaker 02:
You say the plain order meaning of gliding in this art has to do with smooth and continuous movement, right?

[00:18:39] Speaker 02:
Correct, yes.

[00:18:40] Speaker 02:
And the petitioners say, no it doesn't.

[00:18:44] Speaker 02:
The plain order meaning is just movement.

[00:18:48] Speaker 02:
And the board resolved that dispute, I think, by going to extrinsic evidence

[00:18:54] Speaker 02:
to figure out where to start its analysis.

[00:18:56] Speaker 02:
That is, went to extrinsic evidence to figure out who's right about the plain, ordinary meaning.

[00:19:00] Speaker 02:
Isn't that what happened?

[00:19:01] Speaker 01:
I don't believe the board started its analysis there, but clearly the board did rely in part on the extrinsic evidence that was submitted by Neonode.

[00:19:10] Speaker 01:
And recall, Google submitted no evidence at all on the ordinary meaning.

[00:19:16] Speaker 01:
So I'm using the term ordinary meaning to refer to how a posita would understand

[00:19:24] Speaker 01:
the term in a general way, right?

[00:19:28] Speaker 01:
Because a lot of words that are used in claims, they're not going to be reliant on an explanation in the intrinsic record in order to understand them.

[00:19:42] Speaker 01:
In fact, probably the bulk of the words in a typical claim would fit within that category.

[00:19:47] Speaker 01:
Gliding is, I would submit, one of those

[00:19:51] Speaker 01:
types of words.

[00:19:52] Speaker 01:
It's not a word that is going to require recourse to the intrinsic record in order to understand what it means as a first principle.

[00:20:00] Speaker 01:
And as we know, we start with the claim language.

[00:20:03] Speaker 01:
Gliding is the relevant term in the claim language.

[00:20:06] Speaker 01:
What does that word mean?

[00:20:08] Speaker 01:
I think most of us have a gut sense of what gliding means, gliding along a display.

[00:20:14] Speaker 01:
And all the board did here

[00:20:17] Speaker 01:
was it looked at evidence that was submitted, the dictionary definitions as well as testimony by Professor Rosenberg as to how a person of skill and merit would understand the term in this context of the 879 patent and the intrinsic record.

[00:20:35] Speaker 03:
Did the board reference the specification at all?

[00:20:37] Speaker 01:
I don't recall them doing that.

[00:20:40] Speaker 01:
I don't recall, Your Honor, to be honest.

[00:20:44] Speaker 01:
I'd have to take a look at the FWD in order to try to determine that.

[00:20:50] Speaker 01:
Well, if you'll give me one moment.

[00:20:56] Speaker 04:
You have six.

[00:20:59] Speaker 01:
Six moments or six minutes?

[00:21:01] Speaker 01:
Six minutes.

[00:21:03] Speaker 01:
All right.

[00:21:04] Speaker 03:
I don't recall saying that.

[00:21:05] Speaker 01:
Yeah.

[00:21:08] Speaker 01:
I don't have any information.

[00:21:12] Speaker 01:
that would suggest that they did at this time, Your Honor.

[00:21:18] Speaker 01:
So again, we start with the ordinary meaning of the claim terms.

[00:21:23] Speaker 01:
That's what the board did.

[00:21:24] Speaker 01:
And that should be sufficient here.

[00:21:27] Speaker 01:
The specification provides an example of gliding as the board understood it.

[00:21:35] Speaker 01:
In the prosecution file, of course, Judge Prost, you pointed out that

[00:21:40] Speaker 01:
In an early version of the claim, the claim used the language that Google is propounding for here, which is moving from one location to another on the display.

[00:21:52] Speaker 01:
Moving to, right?

[00:21:55] Speaker 01:
The claim was rejected.

[00:21:57] Speaker 01:
The applicant submitted a video showing the actual operation of a commercial embodiment of what is claimed in claim one, the N2 phone.

[00:22:10] Speaker 01:
It is part of the intrinsic record in this case.

[00:22:14] Speaker 01:
And the examiner viewed the video and in subsequent marks explained that he had viewed the video and the video helped him to understand the differences between the invention in the application and the prior art, but that the claim was still too broad.

[00:22:34] Speaker 01:
The applicant then subsequently narrowed the claim as

[00:22:39] Speaker 01:
my colleague points out, the claim was significantly amended.

[00:22:45] Speaker 01:
But one of those amendments, or an aspect of that amendment, was to narrow the claim from the genus of moving to the species of gliding.

[00:22:56] Speaker 01:
And the court does not try to parse through an amendment to figure out, well, OK, is this part relevant?

[00:23:05] Speaker 01:
Or is that part relevant?

[00:23:07] Speaker 01:
What was the applicant really relying on?

[00:23:09] Speaker 01:
what the court does under this court's precedence is to look at whether the claim or the amendment narrowed the claim and to give effect to that amendment.

[00:23:21] Speaker 01:
And that's all we're asking the court to do here today is, in accordance with what the board did, give effect to the amendment.

[00:23:30] Speaker 01:
The claim was amended to drop moving and to focus on the narrower gliding.

[00:23:36] Speaker 01:
And that's all we're asking for is for this court to interpret the claim as it's actually stated.

[00:23:48] Speaker 01:
In addition, of course, as we pointed out in the briefing, the applicant several times likened gliding to rubbing and swiping and so on in remarks to the examiner, subsequent remarks to the examiner,

[00:24:06] Speaker 01:
distinguishing various references that were cited by the examiner.

[00:24:12] Speaker 01:
The applicant stated that the touch and glide movements of the object remains on the display, right?

[00:24:21] Speaker 01:
The applicant distinguished the Hoshino reference.

[00:24:23] Speaker 01:
Now, there were two arguments made to distinguish the Hoshino reference.

[00:24:30] Speaker 01:
One was the order of activation.

[00:24:33] Speaker 01:
And that's the argument that my colleague focuses on.

[00:24:36] Speaker 01:
But there was another argument that was made distinguishing Hoshino's drag and drop operation.

[00:24:47] Speaker 01:
And the arguments or the applicant's statement there actually underlined that Hoshino used the drag and drop

[00:25:00] Speaker 01:
whereas the claimed invention here uses a touch and glide operation.

[00:25:07] Speaker 01:
So I would submit to you that that was a very clear distinguishing of the drag and drop from the touch and glide operation here.

[00:25:16] Speaker 01:
And that's relevant because, again, it points out that the applicant in a PASIDA reviewing the intrinsic record would understand that gliding here is given its ordinary meaning.

[00:25:28] Speaker 01:
It's not intended to

[00:25:31] Speaker 01:
to have a scope broad enough to reach all types of moving or movement.

[00:25:40] Speaker 01:
Let me see.

[00:25:49] Speaker 01:
I would point out that the argument that there's no written description support for gliding, I think we've already addressed that.

[00:25:56] Speaker 01:
There is, and as the court has noted...

[00:26:01] Speaker 01:
Well, I believe that that's one of the main props of their argument to try to construe gliding as moving, is that if it's construed as gliding, as it's written, that there would be no written description support.

[00:26:17] Speaker 03:
Well, that would be based on an erroneous proposition, which I think is clear from Phillips, that we don't construe claims to preserve their validity, except in limited circumstances.

[00:26:29] Speaker 01:
I agree wholeheartedly, Your Honor.

[00:26:32] Speaker 01:
That's absolutely right.

[00:26:33] Speaker 01:
And they failed to demonstrate the necessary ambiguity in any event, as the board found in its FWD.

[00:26:42] Speaker 01:
All right.

[00:26:47] Speaker 01:
I really have nothing further, unless the court has any questions.

[00:26:51] Speaker 04:
I think your time is gliding to an end.

[00:26:56] Speaker 01:
Thank you, Your Honor.

[00:26:58] Speaker 04:
Mr. Tupper has some time.

[00:27:00] Speaker 00:
Thank you, Your Honors.

[00:27:09] Speaker 00:
A few points, Judge Prost, to answer the question you asked my friend here.

[00:27:14] Speaker 00:
The Board did not analyze the specification in its claim construction analysis, which spans Appendix 25 through 29.

[00:27:23] Speaker 00:
Second point, on the

[00:27:25] Speaker 00:
Ordinary meaning and intrinsic evidence for gliding.

[00:27:28] Speaker 00:
We discussed dictionary definitions.

[00:27:31] Speaker 00:
My colleague brought up Dr. Rosenberg's testimony.

[00:27:35] Speaker 00:
The problem with that is Dr. Rosenberg also did not consider the specification in his claim construction analysis.

[00:27:42] Speaker 00:
We pointed this out in our blue brief.

[00:27:43] Speaker 00:
They didn't contest it in the red brief, and the evidence shows that he didn't consider it.

[00:27:48] Speaker 00:
Council also brought up documentation that was released by various parties regarding the meanings of flick and swipe.

[00:27:57] Speaker 00:
There's numerous problems with this documentation.

[00:28:00] Speaker 00:
The first is it all came after the patent was, the application was filed after 2002.

[00:28:06] Speaker 00:
So it's not contemporaneous.

[00:28:08] Speaker 00:
The other problem is it never, none of it discusses glide, which is the claim term.

[00:28:13] Speaker 00:
It might discuss swipe and flick, but it never actually discusses glide.

[00:28:16] Speaker 00:
So it's not relevant.

[00:28:24] Speaker 00:
Onto the prosecution history, just two points here.

[00:28:27] Speaker 00:
First, where my colleague left off discussing Hoshino.

[00:28:33] Speaker 00:
He mentioned that there were two distinctions.

[00:28:35] Speaker 00:
It's really all the same distinction.

[00:28:37] Speaker 00:
If you look at the quote, the full quote that my colleague was referencing, which is on A2316,

[00:28:46] Speaker 00:
The applicant stated that Hoshino does not teach gliding a finger away from an icon.

[00:28:52] Speaker 00:
Instead, Hoshino teaches a drag and drop operation for moving an icon.

[00:28:58] Speaker 00:
It's the same distinction.

[00:29:00] Speaker 00:
It's not about moving a finger away from an icon.

[00:29:03] Speaker 00:
It's about moving the icon.

[00:29:05] Speaker 00:
In fact, to show that Hoshino's drag was not distinguished based on gesture mechanics,

[00:29:14] Speaker 00:
On the previous page, at A2315, the applicant included a chart that talked about the order of the claimed invention, touch, glide, activate.

[00:29:26] Speaker 00:
But then when the applicant included the same chart for Hoshino, even though Hoshino discloses a drag, the applicant labeled Hoshino's drag a glide.

[00:29:37] Speaker 00:
So the applicant was then conflating gliding and dragging, not trying to actually distinguish those

[00:29:44] Speaker 00:
those motions based on the actual motions as opposed to moving the icon.

[00:29:51] Speaker 00:
The last point on the prosecution history, the video, Neonode's video that was submitted, that is also a commercial embodiment.

[00:30:00] Speaker 00:
It was released five years after the specification was filed and the court's precedent

[00:30:09] Speaker 00:
makes clear that that's not proper to consider.

[00:30:12] Speaker 02:
But it is intrinsic to the prosecution, and the examiner seems to have been persuaded by it.

[00:30:18] Speaker 00:
It is, Your Honor, and that was going to be my last point on the video, is if you actually look at the context of the amendment and the argument that was made with regard to the video,

[00:30:29] Speaker 00:
It also had nothing to do with the mechanics of gliding.

[00:30:33] Speaker 00:
In that amendment, they were distinguishing the Carlson reference that I discussed in my opening based on Carlson doesn't matter.

[00:30:41] Speaker 00:
It doesn't matter where the gesture starts.

[00:30:44] Speaker 00:
But in the present, in the claimed invention as it was claimed at the time, it did matter where you started.

[00:30:50] Speaker 00:
So it wasn't, again, based on the mechanics of gliding versus some other movement.

[00:30:55] Speaker 00:
It was based on this location-based activation.

[00:30:58] Speaker 00:
Unless the panel has any other questions, I thank you for your time.

[00:31:02] Speaker 04:
Thank you.

[00:31:03] Speaker 04:
We appreciate the arguments of both counsel, including four cases in one day.

[00:31:09] Speaker 04:
That concludes today's arguments.

[00:31:13] Speaker 01:
Thank you, Your Honor.