[00:00:00] Speaker 00:
Next case for argument is 23-1326, inmate macro point.

[00:00:07] Speaker 00:
Mr. Johnson, whenever you're ready.

[00:00:10] Speaker 00:
I promise you this will not go as long as the prior argument.

[00:00:14] Speaker 00:
I expected that, Your Honor.

[00:00:15] Speaker 00:
I say to my panel, please proceed.

[00:00:19] Speaker 01:
May it please the court.

[00:00:20] Speaker 01:
My name is Mark Johnson, and I am from Renorado.

[00:00:23] Speaker 01:
And I'm here with my colleague, Kyle Fleming.

[00:00:26] Speaker 01:
And I'd like to talk a little bit about a board rejection.

[00:00:30] Speaker 01:
of a very interesting invention that allowed for the tracking of freight.

[00:00:36] Speaker 01:
There were two reasons why the board rejected these claims.

[00:00:39] Speaker 01:
The first is a single reference obviousness rejection based on what the board deemed to be common sense.

[00:00:48] Speaker 01:
Now, we all know that this court's jurisprudence tells us that a common sense

[00:00:57] Speaker 01:
to provide motivation for combining two references for an obviousness analysis.

[00:01:05] Speaker 01:
What it is not typically used for is to provide a reason to modify a single reference.

[00:01:12] Speaker 01:
And that's what the court in Narendi Apple tells us, discussing perfect web.

[00:01:18] Speaker 01:
This is exactly what the board did.

[00:01:21] Speaker 01:
The problem with this is there's a very fine line between common sense and hindsight.

[00:01:28] Speaker 01:
And the reason why.

[00:01:30] Speaker 03:
Am I thinking about it incorrectly or too crudely to think about the case as the claim as saying, if you want to know where the truck is, a pretty good estimate is where the driver's cell phone is?

[00:01:49] Speaker 01:
That is a very broad sweeping way of looking at the claim, but it's not inaccurate.

[00:01:54] Speaker 01:
However.

[00:01:55] Speaker 01:
It is very different from what the industry was doing at the time.

[00:02:00] Speaker 01:
And the record tells us this.

[00:02:02] Speaker 01:
So you have this reference endsman from 2000 that was directed to using backend cell networks to identify the location of the cell user.

[00:02:13] Speaker 01:
And notably it was

[00:02:15] Speaker 01:
And the applicant was Bell South.

[00:02:17] Speaker 01:
So it was a cell service provider that was going to take advantage of it.

[00:02:22] Speaker 01:
And the other reference is UPS, right?

[00:02:24] Speaker 01:
Sure.

[00:02:24] Speaker 01:
Yeah.

[00:02:24] Speaker 01:
So Bell South saw this opportunity to take advantage of changing law in which information regarding the locations of cell phones is going to become accessible to third parties.

[00:02:36] Speaker 01:
So Bell South said, hey, we've got this system.

[00:02:38] Speaker 01:
Let's improve this.

[00:02:40] Speaker 01:
The existing technology at the time had specialized systems that required specialized networks, and that's the key here.

[00:02:46] Speaker 01:
These systems needed specialized networks in order to track trucks, people, whatever.

[00:02:52] Speaker 01:
So not only did you need specialized front-end devices,

[00:02:56] Speaker 01:
that utilized GPS or some form of tracking technology, you needed specific backend devices.

[00:03:02] Speaker 01:
And Ensman was directed to solving that problem, which it did.

[00:03:06] Speaker 01:
And it also solved some of the problems that would otherwise be associated, such as getting permission from a user to track them using their device.

[00:03:17] Speaker 01:
That's 2000.

[00:03:18] Speaker 01:
There's no dispute Enzeman teaches tracking a user based on the location of a device.

[00:03:25] Speaker 01:
And there's really no dispute that a user could be a worker, could be a driver of a car.

[00:03:31] Speaker 01:
What Enzeman doesn't teach is correlating a user's cell phone with a vehicle rather than the user.

[00:03:40] Speaker 01:
And that was the invention that came around with Mr. Edelman and MacroPoint in 2012.

[00:03:47] Speaker 01:
Prior to that, there was a whole transition in technology boom in this industry.

[00:03:53] Speaker 01:
And Davidson teaches us about that.

[00:03:56] Speaker 01:
What Davidson shows us is that there was this massive push to get more and more and better information in the industry.

[00:04:04] Speaker 01:
They didn't just want to know where the driver was.

[00:04:06] Speaker 01:
They didn't just want to know where the truck was.

[00:04:07] Speaker 01:
That wasn't good enough.

[00:04:09] Speaker 01:
They wanted telematics data.

[00:04:10] Speaker 01:
They wanted efficiency data.

[00:04:11] Speaker 01:
They wanted to know how long the engine was idling.

[00:04:14] Speaker 02:
They wanted to know.

[00:04:14] Speaker 02:
It also teaches that a cell phone can be collecting and transmitting telematics data, right?

[00:04:20] Speaker 02:
Of the driver.

[00:04:21] Speaker 02:
Yes, and Davidson recognized.

[00:04:24] Speaker 02:
Well, it telematics data.

[00:04:27] Speaker 02:
reference defines what telematics telematics data is and it includes among other things vehicle location it does and so why wasn't that a reasonable reading of the reference by the examiner board that you know you put those two davidson statements together davidson's teaching using a cell phone a truck driver's cell phone to send among other things information about the truck's location

[00:04:55] Speaker 01:
Well, I think that when you read Davidson in its entirety, it's very clear that that's not what Davidson was doing.

[00:05:03] Speaker 01:
What Davidson was saying is, we recognize that the driver and the truck aren't always located at the same position, in the same location.

[00:05:11] Speaker 01:
And we want information about idling.

[00:05:12] Speaker 01:
If the vehicle's idling, we want to know why.

[00:05:15] Speaker 01:
Is it because the driver left the vehicle running to go deliver a package?

[00:05:19] Speaker 01:
Is it because the driver's stuck in traffic?

[00:05:22] Speaker 01:
So it's helpful to know, in addition to the location of the vehicle itself, where's the driver at that time?

[00:05:28] Speaker 01:
That's what Davidson was doing.

[00:05:30] Speaker 00:
But if they were doing the same thing, maybe they had a different purpose in doing it.

[00:05:34] Speaker 00:
But why does that take it out of the realm of the prior art that we can consider relevant for our purposes here?

[00:05:41] Speaker 01:
Macklepoint's position, Your Honor, is that neither reference does what is claimed, which is associating the location of a mobile device

[00:05:52] Speaker 01:
Davidson associates the location of a mobile device with the driver.

[00:05:56] Speaker 01:
Ensman associates the location of a mobile device with a worker, which could be a driver.

[00:06:01] Speaker 01:
So there's actually no reason to combine Davidson with Ensman because it just discloses the same technology and uses it in the exact same way.

[00:06:10] Speaker 01:
Putting them together, you still don't arrive at the claimed invention.

[00:06:13] Speaker 00:
And what is the missing element again?

[00:06:15] Speaker 01:
The missing element is associating the location of, using the location of a mobile device to estimate the location of a vehicle.

[00:06:25] Speaker 02:
But what about what I just said about Davidson's teaching, about the phone sending telematics data, about Davidson defining telematics data as being, among other things, data about the vehicle location?

[00:06:41] Speaker 02:
I mean, those are two statements right out of Davidson.

[00:06:43] Speaker 02:
The board and the examiner used those two statements to say, well, Davidson's teaching a lot of things, but one of the very reasonable takeaways is that

[00:06:54] Speaker 02:
that the phone is sending vehicle location information, because that's one type of telematics data that the phone is explicitly sending.

[00:07:05] Speaker 01:
I believe you're referring to paragraph 30 of Davidson, Judge Chen.

[00:07:09] Speaker 01:
And I think that's where we have the big dispute, right?

[00:07:12] Speaker 01:
Both parties cite the same paragraph.

[00:07:15] Speaker 02:
My point is, under the standard of review, you have to somehow establish that this was an unreasonable reading.

[00:07:23] Speaker 02:
that there is just no substantial evidence to support this reading.

[00:07:27] Speaker 02:
And so this is a fact question.

[00:07:30] Speaker 02:
And once we get to this point, it's hard to overturn fact-finding.

[00:07:36] Speaker 01:
Understandably, Your Honor.

[00:07:37] Speaker 01:
I hope to do that today.

[00:07:40] Speaker 01:
First of all, in all of the embodiments disclosed in Davidson, the telematics data is collected by the telematics device and sent somewhere.

[00:07:51] Speaker 01:
One of the places it's sent is over Bluetooth or some other technology to the PDA, which we can refer to as a mobile phone.

[00:07:58] Speaker 01:
They're effectively the same thing.

[00:08:00] Speaker 01:
Then the mobile phone or PDA will send it back to the backend servers.

[00:08:05] Speaker 01:
So when you talk about the mobile phone sending telematics data, it's telematics data that was derived from a sensor in the truck that provides truck-specific locations.

[00:08:15] Speaker 01:
It's not location information of the driver or the PDA itself that's being sent in that situation.

[00:08:24] Speaker 01:
Paragraph 30 that was hotly disputed talks about it.

[00:08:29] Speaker 01:
It says, according to one embodiment, in addition to receiving telematics data from the telematics device 102, and that's what we were just talking about,

[00:08:37] Speaker 01:
The PDA may be further configured to collect and transmit telematics data on its own.

[00:08:42] Speaker 01:
And then it goes on to say that that telematics data is the location of the user.

[00:08:48] Speaker 01:
And it said in particular embodiments, as discussed in more detail below, this location determining device may be used to gather information regarding the location of the driver, him or herself, as opposed to location information associated with the delivery vehicle, 100, which may be collected

[00:09:06] Speaker 01:
Parentheses or determined by the telematics device.

[00:09:10] Speaker 01:
So what it's saying is in addition to Collecting this information using these vehicle specific location sensors It's desirable in some embodiments to also locate the driver for different reasons.

[00:09:23] Speaker 01:
I Do not believe this a reasonable reading of this paragraph encompasses Estimating the location of a vehicle based on the location of the PDA effect.

[00:09:33] Speaker 01:
It says the opposite and

[00:09:36] Speaker 01:
And that's our substantial evidence argument, with respect to Davidson.

[00:09:41] Speaker 01:
And that's really the crux of the argument.

[00:09:43] Speaker 00:
OK, why don't we hear from the office, and we'll be soon.

[00:09:46] Speaker 03:
Good morning.

[00:09:57] Speaker 04:
Good morning, Your Honors.

[00:09:58] Speaker 04:
May it please the Court?

[00:10:00] Speaker 04:
I'd like to continue the conversation about paragraph 30 of Davidson.

[00:10:04] Speaker 04:
This is at 8PPX905.

[00:10:07] Speaker 04:
As Judge Chen was pointing out, Davidson does talk about an embodiment where the telematics device, which is located in the vehicle, it says in addition to receiving telematics data from the telematics device 102, the portable data acquisition device 110, which is the mobile phone, may be further configured to collect and transmit telematics data on its own.

[00:10:30] Speaker 04:
And as you pointed out, telematics data is data about the vehicle, including

[00:10:34] Speaker 04:
the location of the vehicle.

[00:10:36] Speaker 04:
Davidson teaches that.

[00:10:37] Speaker 04:
And they give one example of how this portable device can collect and transmit telemedics data.

[00:10:42] Speaker 04:
And that's in the next sentence.

[00:10:44] Speaker 04:
It says, for example, according to one embodiment, the portable data acquisition.

[00:10:50] Speaker 00:
Where would we call your?

[00:10:53] Speaker 04:
905, right?

[00:10:53] Speaker 04:
Paragraph?

[00:10:54] Speaker 04:
This is paragraph 30.

[00:10:55] Speaker 04:
30.

[00:10:56] Speaker 04:
Yeah, 8PPX905.

[00:10:59] Speaker 04:
And it gives this one example.

[00:11:01] Speaker 04:
And this is at the top of page

[00:11:04] Speaker 04:
a PPX905, the second column.

[00:11:06] Speaker 04:
It says, for example, according to one embodiment, the portable data acquisition device 110 may include a location determining device, such as a global positioning system GPS device.

[00:11:19] Speaker 04:
And then it goes on to say, after that, this other in particular embodiment, he made you something different where you could track the location of the driver and the vehicle

[00:11:28] Speaker 04:
where the phone would track the location of the driver and the telematics device would track the location of the vehicle.

[00:11:34] Speaker 04:
But it doesn't give this one very specific example of how you could use that portable device to track the telematics data on its own.

[00:11:41] Speaker 04:
And it gives that specific example of location as being one type of telematics device.

[00:11:46] Speaker 02:
Is there any other kind of telematics data that a cell phone could collect and transmit other than using its own GPS as a stand-in for the location of the vehicle?

[00:11:58] Speaker 04:
Presumably if the driver is in the vehicle and you have this location device, you could probably tell the speed of the vehicle potentially by how fast the phone is moving.

[00:12:08] Speaker 04:
They don't give examples of that, but they do give this one specific example of the location.

[00:12:15] Speaker 04:
It's possible that the phone could... there are sensors on the vehicle.

[00:12:19] Speaker 02:
There's several different types of telematics data that's identified and Davidson referenced, and I don't think

[00:12:25] Speaker 02:
it would be your position that the cell phone itself could somehow, on its own, collect all of that different type of telematics data and then transmit that, right?

[00:12:36] Speaker 02:
I don't think so.

[00:12:37] Speaker 02:
I think... You don't have to, but I'm just trying to figure out what's the best understanding of Davidson when it talks about the phone vis-a-vis telematics data.

[00:12:47] Speaker 02:
Yeah, I think one reasonable interpretation... Because one theory is... The other side's theory is

[00:12:53] Speaker 02:
that it's doing nothing more than collecting the telematics data being collected by the telematics device in the truck and then serving as a communication vehicle of taking that telematics data from the telematics device and then sending it on to some central server.

[00:13:13] Speaker 04:
Yeah.

[00:13:13] Speaker 04:
And I think one interpretation could be instead of using the telematics device 102 to collect this data from sensors,

[00:13:19] Speaker 04:
Davidson says you have sensors in the vehicle that can provide information about the seat belt status or RPMs or the speed of the vehicle and whether you're stopping.

[00:13:30] Speaker 04:
You could just send that data directly from the sensors potentially to this portable data acquisition device.

[00:13:36] Speaker 04:
But again, it does give the one specific example of location being one type of telematics device.

[00:13:43] Speaker 04:
And it says the phone does have the GPS location.

[00:13:46] Speaker 04:
And in this case, that's sufficient to meet the claim limitation.

[00:13:49] Speaker 04:
And then turning back to Ensmin by itself, suggesting that limitation.

[00:13:57] Speaker 04:
Ensmin discloses in the location tracking system for fleet vehicles.

[00:14:04] Speaker 02:
And it talks about the pretty conclusory invocation of common sense by the board here.

[00:14:11] Speaker 02:
I mean, it was alarmingly, I don't know, confusing.

[00:14:19] Speaker 04:
It was relatively short.

[00:14:20] Speaker 04:
I think they mentioned it.

[00:14:21] Speaker 04:
It couldn't be shorter.

[00:14:23] Speaker 04:
Well, they could have explained it.

[00:14:26] Speaker 04:
It was the 50th version of the Common Sense rationale I've ever seen.

[00:14:31] Speaker 04:
It was pretty short.

[00:14:33] Speaker 04:
And if we get back to, if you actually look at the board's decision when they talk about it, it's at APPX6, I believe.

[00:14:41] Speaker 04:
Well, I'm looking at AAA.

[00:14:45] Speaker 04:
Common sense, exactly.

[00:14:47] Speaker 04:
Yeah.

[00:14:49] Speaker 02:
It's what they talk about.

[00:14:50] Speaker 02:
Modification would be no more than an exercise of common sense.

[00:14:54] Speaker 02:
CKSR, game over.

[00:14:56] Speaker 02:
Exactly.

[00:14:57] Speaker 02:
Don't you think in order for the board to have a sustainable rejection based on common sense, the board needs to say more, perhaps a lot more, especially using something

[00:15:13] Speaker 02:
as potentially dangerous of a rationale as the so-called common sense rationale?

[00:15:20] Speaker 04:
Yeah.

[00:15:20] Speaker 04:
And they did say a little bit more, not a lot more.

[00:15:23] Speaker 04:
But if you look at the previous page, they talk about how Ensmin is capable of tracking.

[00:15:30] Speaker 04:
I'm sorry.

[00:15:36] Speaker 04:
They talk about the common sense in APPX8.

[00:15:39] Speaker 04:
But they do talk about how

[00:15:41] Speaker 04:
In the prior art systems of the fleet vehicles, one of the drawbacks was you had to use this dedicated equipment, like the microprocessor that the requester had.

[00:15:49] Speaker 04:
And then you have to use the GPS receiver located in the vehicle.

[00:15:52] Speaker 04:
And you had to both purchase and maintain that equipment.

[00:15:55] Speaker 04:
And one of the advantages that Ensman talks about, and this is the examiner and the board both cited to this, is that the invention relieves the burden of having to purchase and maintain that dedicated equipment.

[00:16:10] Speaker 04:
And this is the APPX 886 in column 2, lines 9 through 10.

[00:16:16] Speaker 02:
Well, then that would be a motivation of Mataba to make something cheaper and more convenient.

[00:16:23] Speaker 02:
I mean, that's maybe one type of common sense, I suppose.

[00:16:28] Speaker 02:
But that's not the actual statement here when it comes down to what is the basis for the Hensman-Aloni projection.

[00:16:38] Speaker 04:
Yeah, and I think it's also, it's fleshed out a little bit in the examiner's answer for the final office action.

[00:16:47] Speaker 04:
This is at APPX 696.

[00:16:50] Speaker 04:
Right.

[00:16:51] Speaker 02:
They talk about it.

[00:16:52] Speaker 02:
I believe so.

[00:16:56] Speaker 02:
I mean, I see it side of KSR.

[00:16:59] Speaker 02:
I see it side of APPX 696.

[00:17:01] Speaker 04:
So at APPX 9 of the board's decision, where they talk about common sense, in the middle of the page, they do say, thus we agree with the examiner.

[00:17:10] Speaker 04:
And they cite to final action 6.

[00:17:13] Speaker 04:
And that is page 8.

[00:17:15] Speaker 04:
Yeah, that's APPX 696.

[00:17:18] Speaker 04:
And that's where the examiner walks through in more detail, the rationale citing that.

[00:17:23] Speaker 04:
Ensman explicitly mentions a vehicle tracking system as background art.

[00:17:27] Speaker 04:
Emphasizes that the purpose of ends minutes to relieve the requester of the burden of maintaining a tracking system Which suggests centralization that could be applied to that same vehicle tracking system of the prior arts?

[00:17:39] Speaker 04:
And so they do cite to it before it could you know spelled it out itself in a little more detail they do cite to this page and they say they say that they agree with the examiner's findings and conclusions inside their endsman plus Davidson discussion, right or is it endsman and

[00:17:56] Speaker 04:
APPX 696, the portion I just read, is just talking about the rejection or the finding that Ensman suggests this limitation.

[00:18:07] Speaker 02:
Right, but you have to go to the heading.

[00:18:09] Speaker 02:
The heading at 693 says this is an Ensman plus Davidson objection.

[00:18:15] Speaker 04:
Yes, and that was one confusing aspect of this case.

[00:18:18] Speaker 04:
There is just one rejection in this case, and it's the combination.

[00:18:22] Speaker 04:
But they found that estimating the location, the disputed limitation, was both suggested by Edsman alone and then separately explicitly taught by Davidson.

[00:18:33] Speaker 04:
But the rejection itself is just one rejection based on the combination of Edsman and Davidson.

[00:18:41] Speaker 04:
But it's kind of suggested by Ensman alone.

[00:18:43] Speaker 04:
And then alternatively, it's obvious based on the combination of combining Davidson's.

[00:18:50] Speaker 02:
So if we affirm here, we're affirming based on Ensman in view of Davidson.

[00:18:55] Speaker 02:
We wouldn't be affirming in view of Ensman alone.

[00:18:58] Speaker 02:
Correct.

[00:18:58] Speaker 02:
Correct.

[00:18:59] Speaker 02:
So it's getting a little confusing with exactly what the board was doing.

[00:19:04] Speaker 02:
Yeah.

[00:19:04] Speaker 04:
I think there's basically just two different ways they found this limitation was met.

[00:19:08] Speaker 04:
But if you're comfortable with the finding that Davidson teaches this expressly, and it would be obvious to make that combination, that's a fine basis to affirm the board's decision on its own without getting into the common sense rationale.

[00:19:45] Speaker 01:
paragraph if we do this too much but I do think it's important to to consider the totality of Davidson when you're reading this paragraph if one were to accept the board's conclusion that paragraph 30 could reasonably be interpreted to mean that the PDA is being used as a proxy for the location of the truck rather than using the actual sensors that exist on the

[00:20:12] Speaker 01:
Most of what Davidson is trying to accomplish would be undermined.

[00:20:16] Speaker 01:
You lose the ability to track efficiency.

[00:20:18] Speaker 01:
You lose the ability to track the driver.

[00:20:20] Speaker 01:
You lose all of the things that it talked about.

[00:20:23] Speaker 01:
Everything it was trying to achieve goes away.

[00:20:26] Speaker 01:
MacroPoint's invention doesn't offer much of anything that Davidson did.

[00:20:31] Speaker 01:
It was designed to be a more flexible solution that allowed truck drivers with flip phones to provide their location as a proxy for freight.

[00:20:43] Speaker 01:
Davidson was a very detailed system trying to improve route planning, improve gas mileage, know exactly where drivers were on their routes at any given time, and hopefully avoid accidents, avoid construction.

[00:20:56] Speaker 01:
That's what Davidson was about.

[00:20:57] Speaker 01:
It was about collecting as much information as possible.

[00:21:01] Speaker 01:
Interpreting paragraph 30 as proposed by the board would jettison all that.

[00:21:07] Speaker 01:
for information that's, by definition, not as good.

[00:21:11] Speaker 01:
Because everyone knows the driver's not in the car all the time.

[00:21:14] Speaker 01:
So now you've taken this goal and thrown it out the window, the entire purpose of the invention.

[00:21:20] Speaker 01:
So that's all we have for Davidson here.

[00:21:22] Speaker 01:
Thank you.

[00:21:22] Speaker 01:
Thank you.

[00:21:23] Speaker 01:
We thank both sides.

[00:21:24] Speaker 01:
The case is submitted.