[00:00:00] Speaker 03:
Our next case for argument is 23-1398, iRobot versus Shark Ninja.

[00:00:08] Speaker 02:
May I please the court?

[00:00:09] Speaker 02:
Lauren Dagny for iRobot.

[00:00:13] Speaker 02:
iRobot proved conception under this court's precedent and the court should reverse.

[00:00:18] Speaker 02:
I wrote a presented inventor testimony describing the invention with particularity and also provided corroborating evidence, documents, and testimony showing that the inventor's story is credible.

[00:00:32] Speaker 03:
Am I right that the dispute here is about the corroboration?

[00:00:37] Speaker 02:
Predominantly, Your Honor.

[00:00:38] Speaker 02:
The board also faulted some of the inventor declarations as well.

[00:00:44] Speaker 02:
But we think the declarations are clear in describing the conception of particular imitations 1D and 1E.

[00:00:52] Speaker 02:
I'm happy to start with the corroborating evidence.

[00:00:55] Speaker 01:
The board found lack of conception as well.

[00:01:00] Speaker 01:
And I'm not sure what's protected here and what isn't.

[00:01:04] Speaker 01:
But the specific

[00:01:06] Speaker 01:
Planned limitations or other planned laws of conception.

[00:01:09] Speaker 01:
Appendix 20.

[00:01:14] Speaker 01:
As well as that of co-ordination.

[00:01:17] Speaker 02:
That's correct, Your Honor.

[00:01:19] Speaker 02:
So the board did fault the inventor declarations, and we were saying that the criticism the board levied on the inventor declarations for describing the conception story focused too closely on requiring the inventor declarations

[00:01:34] Speaker 02:
to parent claim language.

[00:01:36] Speaker 02:
So we look at paragraphs, for example, 27 of the OSIC declaration and also 27 of the VU declaration.

[00:01:42] Speaker 02:
Both of those paragraphs explain how the eventors conceived of detecting contact with charging terminals on the base station with reference to a charger available question function.

[00:01:57] Speaker 02:
and then describe how the inventors conceived of stopping the fluid movement of the robotic clean device in response to that.

[00:02:06] Speaker 02:
detection of contact at the charging terminals in limitation 1E.

[00:02:11] Speaker 02:
So we would say that declarations that I just mentioned describe that conception story.

[00:02:16] Speaker 02:
They do not use claim language.

[00:02:18] Speaker 02:
But I robot also put in a declaration of Dr. Hooper, who married up that story with the claim language of paragraphs 55 through 57 of his declaration.

[00:02:29] Speaker 04:
Does your specification disclose multiple environments, however?

[00:02:33] Speaker 04:
And the board found that the statements you just referred to from the inventor were only talking about the unclaimed embodiment.

[00:02:43] Speaker 02:
So two responses to that, Your Honor.

[00:02:46] Speaker 02:
Yes, the Board did note that the specification discloses multiple embodiments, but the Board doesn't actually find that these statements and the declarations relate exclusively to, for example, the bumper theory, the bumper-depressed embodiment.

[00:03:03] Speaker 02:
And in fact, when you drill down on the evidence itself,

[00:03:07] Speaker 02:
For example, the Exhibit 2013 talking about Charger Available function and Exhibit 2016, the Design Strategies document that specifically talks about determining when good contact is available.

[00:03:23] Speaker 02:
Those documents corroborate in their testimony that they had also conceived of

[00:03:30] Speaker 02:
this idea of detecting good contact and then stop it.

[00:03:34] Speaker 02:
The testimony the board cited and that Shark also relied upon from the inventor was dealing with a different source code file called docking.tl, not the user.tl that has this charger available function, and it was improper for the board to discount the user.tl file

[00:03:55] Speaker 02:
simply due to testimony about the status of a different source code file, docking.tl.

[00:04:02] Speaker 02:
Remember, we're talking conception.

[00:04:04] Speaker 02:
There's nothing that prevents inventors from having multiple ideas conceived and then working to reduce to practice writing source code files at different times.

[00:04:15] Speaker 02:
And so I think the board also mixed up the notion of conception versus reduction of practice when it was looking at both at the corroborating evidence.

[00:04:26] Speaker 04:
I guess my follow-up to that would then be, I think you want us to view this as a question of law.

[00:04:34] Speaker 04:
You say there's no doubt out there about proof of conception as a matter of law, but the answer to my question makes it sound like the board actually engaged in fact-finding, and perhaps your fact story was also supported by substantial evidence, but if the story that the board credited, which is that

[00:04:53] Speaker 04:
your folks didn't actually conceive of the embodiment that was claimed at the pertinent time, there would be substantial evidence that we'd have to affirm that finding.

[00:05:04] Speaker 04:
Why is that not what's going on in this appeal?

[00:05:07] Speaker 02:
So first, we think the board, from its opinion, illustrates that it applied the wrong legal test.

[00:05:14] Speaker 02:
applied a too high abode in.

[00:05:16] Speaker 02:
At first, it was looking for specific claim language in the documents, and second, it was looking for the kind of detail that one would look for in connection with reduction to practice, not conception.

[00:05:27] Speaker 02:
Remember, conception is we look at the collaboration evidence to see if it lends credence to the invention story.

[00:05:33] Speaker 02:
We don't need the same level of detail.

[00:05:36] Speaker 02:
We think

[00:05:37] Speaker 02:
as a threshold matter, the board looked at the evidence through the wrong legal lens, which means there's a legal error.

[00:05:45] Speaker 02:
The evidence on the factual side, the evidence that was put forward was really not countered.

[00:05:53] Speaker 02:
All the evidence in the record was from iRobot, and Dr. Hooper's, the expert's interpretation of that evidence, was undisputed.

[00:06:03] Speaker 02:
We understand, of course, that there are underlying factual considerations when considering conception and corroboration of conception.

[00:06:11] Speaker 02:
But here, given the nature of the evidence, and when one looks at the evidence through the proper legal test lens, we would say the board area is a matter of law.

[00:06:26] Speaker 02:
One other point I'd like to make in terms of the board's error in examining this evidence is the charger available function, that function in the code, in the user.tl,

[00:06:38] Speaker 02:
That function means credence and corroborates the conception story by virtue of its very name.

[00:06:46] Speaker 02:
Its name doesn't, it's not alpha function, it's not bumper press function, and the name of this function, again, does what is required under this court's law, which prove the truthfulness of the invention conception story.

[00:07:07] Speaker 02:
And so with that, I will turn, unless the court has further questions on the conception grounds, I will turn to the Kim-Evert combination.

[00:07:14] Speaker 02:
This is a second batch of grounds.

[00:07:17] Speaker 03:
Actually, I'd like you to look at JA6769.

[00:07:20] Speaker 03:
This is the task list, the software schedule and task list.

[00:07:35] Speaker 03:
Yes, you are.

[00:07:37] Speaker 03:
I know it says confidential on the bottom, but I don't think anything I'm going to say breaches that.

[00:07:41] Speaker 03:
If I do, just like wave your hands quickly or something.

[00:07:44] Speaker 03:
Stop me.

[00:07:46] Speaker 03:
So one of the things, am I remembering that the board rejected this evidence entirely because it post-dated the critical date?

[00:07:57] Speaker 02:
That is my recollection as well, Your Honor.

[00:07:58] Speaker 02:
The board did discount some of the evidence because of the date.

[00:08:03] Speaker 02:
And the date on this is what?

[00:08:05] Speaker 02:
FISDA is a July 2003 and the date we're reading is in June.

[00:08:09] Speaker 02:
What's the date in June that we're trying to get?

[00:08:12] Speaker 03:
It is June 23rd, Your Honor.

[00:08:19] Speaker 03:
So you have to have conceived by June 23rd and this date, this document is dated early July, correct?

[00:08:27] Speaker 03:
Yes, Your Honor.

[00:08:28] Speaker 03:
And so the board said this couldn't be considered for your conception because it was dated early July?

[00:08:35] Speaker 03:
That is right, Your Honor.

[00:08:36] Speaker 03:
Well, doesn't this document detail the drive on charging?

[00:08:41] Speaker 03:
and go through and explain the docking, and in particular, the making and detecting contact on page 6770.

[00:08:47] Speaker 03:
Yes, Your Honor.

[00:08:49] Speaker 03:
We completely agree with that.

[00:08:50] Speaker 03:
And so this document demonstrates that just days after the critical date when you're supposed to conceive, you have a software task list that has listed exactly this functionality as something that the code has to be written for.

[00:09:03] Speaker 03:
But clearly, that means that at least as of two or three days after the critical date, they were already preparing to

[00:09:11] Speaker 03:
like the software that would be able to execute these functions.

[00:09:13] Speaker 02:
That's exactly right, Your Honor.

[00:09:15] Speaker 02:
And again, that highlights the board's error in looking at each of the pieces of evidence it considered in isolation as opposed to looking at them collectively or looked at collectively in addition to this.

[00:09:26] Speaker 02:
case of data, we see the source code.

[00:09:29] Speaker 02:
We see Exhibit 2016 that talks about making good contact.

[00:09:32] Speaker 02:
We see Exhibit 10 that specifically shows the configuration of the hardware of the base station at the two yellow square charging terminals.

[00:09:42] Speaker 02:
And so we agree with you that this is more evidence.

[00:09:46] Speaker 03:
Yeah, Exhibit 10 has those two little teeth, right?

[00:09:48] Speaker 02:
Yeah, those yellow teeth.

[00:09:49] Speaker 02:
They have to be – I mean, they're clearly the contacts.

[00:09:52] Speaker 02:
No question.

[00:09:53] Speaker 02:
They are the charge of terminals of the base station.

[00:09:55] Speaker 02:
And collectively, this is all serving the function of cooperatory evidence, which is not to have every claim limitation.

[00:10:05] Speaker 02:
It's not to be at the same level of detail as reduction of practice.

[00:10:07] Speaker 03:
So there's no doubt that user TL existed before the critical date, because we have a last modified date on the file, right?

[00:10:13] Speaker 03:
That's correct.

[00:10:14] Speaker 03:
How does the testimony explain

[00:10:17] Speaker 03:
what user TL actually does, because, you know, I'm no source code expert.

[00:10:22] Speaker 03:
So how was the board?

[00:10:24] Speaker 03:
So you proved that this file existed before the critical date, but what did that file itself teach the board?

[00:10:32] Speaker 02:
Yes, Your Honor.

[00:10:33] Speaker 02:
So the OSIC declaration, paragraph 27, I mentioned on Appendix 74, 49 through 50, explains in detail about that

[00:10:42] Speaker 02:
particular user.tl code in specific.

[00:10:45] Speaker 02:
It says, for example, the behavior user charger would be activated if the Roomba 2 is connected to the charging context of the base station.

[00:10:55] Speaker 03:
The one problem you have with this, I mean I understand,

[00:10:58] Speaker 03:
But this is your expert, right?

[00:11:01] Speaker 03:
I'm sorry.

[00:11:01] Speaker 03:
I mean, this is not your expert.

[00:11:02] Speaker 03:
This is your inventor, right?

[00:11:03] Speaker 03:
That's true.

[00:11:04] Speaker 03:
The problem is the inventor can't explain that the source code supports his testimony, because that's not actually, that's kind of circular.

[00:11:10] Speaker 03:
That doesn't feel corroborative.

[00:11:12] Speaker 03:
I mean, somebody is independent to explain, don't you?

[00:11:15] Speaker 02:
Well, we have that as well, Your Honor, with Dr. Hooper.

[00:11:17] Speaker 02:
That's on Appendix 6648.

[00:11:19] Speaker 02:
He also goes through, for example, in paragraph 56, go through the user charge

[00:11:26] Speaker 02:
source code, and explains the charger available function that outputs an indicator of whether a battery charger, excuse me, 6648.

[00:11:40] Speaker 02:
And he was explaining this charger available function that outputs an indicator.

[00:11:45] Speaker 02:
And this is in the user TIL software.

[00:11:48] Speaker 02:
That is right, and he is a computer software expert who's qualified to examine the code.

[00:11:54] Speaker 02:
Undisputed, there was no other software expert put into the record.

[00:11:57] Speaker 02:
He mentions, as I was saying, that... Why did the board reject user.tl?

[00:12:02] Speaker 02:
The board never mentioned Dr. Hooper's testimony at all.

[00:12:05] Speaker 02:
What about the user.tl source code?

[00:12:07] Speaker 02:
It rejects the user.tl source code based on testimony about an entirely different file, docking.tl, because the docking.tl source code, in the board's opinion, hadn't been written yet to address this charger available function.

[00:12:24] Speaker 02:
But again, that's more of a reduction of practice issue.

[00:12:27] Speaker 02:
So this user.tl code should not have been rejected as failing to cooperate, given its date, given the nature of what it says specifically in the lines, the name of the charger available function, the stop all that's called immediately thereafter.

[00:12:42] Speaker 02:
It should not have been rejected.

[00:12:44] Speaker 02:
It was rejected entirely because of testimony about an indifferent module, docking.tl.

[00:12:51] Speaker 04:
It just says you only will add up two documents before the board.

[00:12:54] Speaker 04:
Is that correct?

[00:12:55] Speaker 02:
I would disagree with that, Your Honor.

[00:12:57] Speaker 02:
Everything in the appendix that we cited in our brief was cited, and we put sites in the brief so you can marry that up.

[00:13:03] Speaker 02:
We disagree with that.

[00:13:04] Speaker 02:
We clearly cited to the Hooper declaration, and the board was utterly silent on it.

[00:13:12] Speaker 02:
If I may?

[00:13:13] Speaker 02:
You want to save time for a bottle?

[00:13:15] Speaker 02:
I would, Your Honor.

[00:13:16] Speaker 02:
Thank you.

[00:13:33] Speaker 00:
Good morning, Honors.

[00:13:33] Speaker 00:
May it please the Court?

[00:13:35] Speaker 00:
The primary issue here is that iRobot is asking this Court to reweigh the evidence and make findings anew rather than applying the appropriate test, which is to ask if the board's decision is supported by substantial evidence.

[00:13:46] Speaker 00:
In doing so, it ignores credible evidence that supports the board's decision.

[00:13:50] Speaker 00:
And there's no better example of that than the testimony of Mr. Ozick, one of the inventors of the 423 patent.

[00:13:57] Speaker 00:
He specifically testified about this charger available function in two separate depositions, in two separate cases, once in the BTAB, once in the ITC.

[00:14:06] Speaker 00:
And both times he was consistent.

[00:14:08] Speaker 00:
When he was asked about this charger available function, he explained from the robust perspective, it doesn't really explain how it works.

[00:14:15] Speaker 00:
It doesn't matter if the user plugs it in or if there's some other method of finding if the charge is available.

[00:14:20] Speaker 00:
It doesn't actually talk about

[00:14:21] Speaker 00:
how it makes the determination.

[00:14:23] Speaker 00:
When asked in his p-tab deposition, he later testified, the coupon doesn't actually explain how the charter available function works.

[00:14:30] Speaker 00:
That's important because the claims require a specific way of determining when docking is complete.

[00:14:36] Speaker 00:
It detects when the contact of the charging terminals, and it stops the response to that detection.

[00:14:42] Speaker 00:
By Mr. Ozick's own testimony, that code doesn't show that.

[00:14:45] Speaker 00:
It doesn't show how that function is being performed.

[00:14:49] Speaker 00:
His testimony is appendix 5135-4391.

[00:14:52] Speaker 00:
The board expressly relied on Mr. Ozick's testimony when discussing this issue.

[00:14:58] Speaker 03:
Well, here's the problem.

[00:15:01] Speaker 03:
Source code often doesn't explain or define things, right?

[00:15:05] Speaker 03:
I mean, that takes an expert to look at the code and understand how it works.

[00:15:09] Speaker 03:
I mean, I guess I don't read the board's footnote.

[00:15:12] Speaker 03:
The only thing you're talking about, unless I'm mistaken, is footnote 14 on page 16 of the board's opinion.

[00:15:16] Speaker 03:
Is that right?

[00:15:18] Speaker 03:
Yes, Your Honor.

[00:15:21] Speaker 03:
Source code often doesn't explain.

[00:15:23] Speaker 03:
It's code.

[00:15:23] Speaker 03:
They don't document it.

[00:15:25] Speaker 03:
You don't usually have comment bubbles on the right that says, here's what this macro does, or here's what this module performs.

[00:15:31] Speaker 03:
The fact that Mr. Ozick said there's no explanation in the source code itself doesn't mean that a skilled artisan reading that code wouldn't understand how it operates.

[00:15:41] Speaker 03:
I guess I'm confused at this point.

[00:15:45] Speaker 03:
I think you've got a strong case on corroboration, and I'd love to talk about it with you, but I think you have a very weak case on conception.

[00:15:51] Speaker 03:
I think paragraph 27 of the OSIC declaration clearly establishes conception of the relevant functionality.

[00:15:58] Speaker 03:
So try and tell me what's wrong with my paragraph 27 assessment for conception purposes.

[00:16:03] Speaker 03:
And then I'll let you move on to corroboration.

[00:16:05] Speaker 03:
It's not all bad for you today, but I'm really struggling with how the board came to the conclusion there's no conception.

[00:16:11] Speaker 00:
So, I'll take a look at paragraph 27 of Ms.

[00:16:15] Speaker 00:
Foose's declaration.

[00:16:16] Speaker 00:
That's in appendix 14.

[00:16:18] Speaker 00:
And they are... Sure.

[00:16:19] Speaker 03:
Okay.

[00:16:20] Speaker 03:
Where do you want me to look at?

[00:16:21] Speaker 00:
It's appendix 14.

[00:16:22] Speaker 03:
Appendix page 14?

[00:16:24] Speaker 00:
It's quoted in the board's decision that board closed Ms.

[00:16:27] Speaker 00:
Foose paragraph 27.

[00:16:28] Speaker 00:
Yep.

[00:16:31] Speaker 00:
There it says, talking about this charger available, it refers to a function that outputs an indicator of whether a battery charger, such as a base station, is electrically connected.

[00:16:41] Speaker 00:
And so there the testimony is talking about the results, that an output of something is happening.

[00:16:48] Speaker 00:
And it doesn't say how that output is actually figured out.

[00:16:51] Speaker 00:
It doesn't say what logic is going through to figure out

[00:16:53] Speaker 00:
if it's actually connected.

[00:16:55] Speaker 00:
And I think the language here, which is very general and says a battery charger such as a base station, shows that it recognizes that the code here isn't specific to detecting contact with the charging terminals.

[00:17:06] Speaker 03:
The board didn't make any of those findings.

[00:17:08] Speaker 03:
Everything you just said is wonderful technical stuff, but those weren't fact-findings made by the board.

[00:17:13] Speaker 03:
You're not offering an alternative rationale that I should conclude the board's opinion is right, but not supporting the board's rationale.

[00:17:19] Speaker 03:
I will stick to the board's rationale.

[00:17:21] Speaker 00:
Sure.

[00:17:21] Speaker 00:
Well, I do think that the board's rationale is supported by what I was just saying, because it does say that the testimony there doesn't actually talk about detecting contact with the charging terminals.

[00:17:30] Speaker 00:
An issue with the testimony is it's more general.

[00:17:32] Speaker 03:
And I think that this goes- My other problem with this is that you're also, right now, getting me at PENIX 14 to look at the VU declaration.

[00:17:40] Speaker 03:
I agree.

[00:17:41] Speaker 03:
The VU declaration is less strong by a lot on Conception.

[00:17:45] Speaker 03:
But what I told you for me was the problem

[00:17:47] Speaker 03:
is Ozik, who's one of the inventors, it seems in paragraph 27 that he clearly and unequivocally articulates conception.

[00:17:56] Speaker 03:
So you pointing to the fact that Vu doesn't quite meet the standard for conception doesn't help me figure out why Ozik doesn't.

[00:18:02] Speaker 00:
And moving to Mr. Ozick, I agree it presents a closer case.

[00:18:08] Speaker 00:
There, though, he still said the behavior user charge would be activated if the robot is connected to the charging contacts without really explaining what analysis the robot's doing to figure out if it's connected.

[00:18:20] Speaker 00:
And that was the issue, I think, with what the board took with his testimony, which it doesn't actually say what

[00:18:26] Speaker 00:
the robot's looking at, how it's determining it's connected.

[00:18:30] Speaker 00:
And I think that goes to the corroboration point as well, if I can address that, because I think... Well, it says if it's connected to the contacts, it says connected to the contacts, right?

[00:18:38] Speaker 03:
Then it would stop the movement.

[00:18:39] Speaker 03:
I mean, I think that sentence is pretty unambiguous.

[00:18:45] Speaker 03:
Should we move to collaboration?

[00:18:47] Speaker 00:
Sure, we absolutely can.

[00:18:48] Speaker 00:
Okay, let's move to collaboration.

[00:18:49] Speaker 00:
Okay.

[00:18:50] Speaker 00:
Turning to collaboration, you know, again, looking... You might say anything else about conception.

[00:18:54] Speaker 00:
I don't want to cut you off, but... The only other thing I would say about conception is just the fact that you've achieved contact doesn't meet the claims, because the patent talks about these other imbalances and recognizes there are different ways to know that when you're finished talking, and those different ways still result in contact with the charging terminals.

[00:19:09] Speaker 00:
And so what's important is how you figure out when you've completed, and the patent claims one specific way.

[00:19:15] Speaker 00:
So that's the last thing I would say on that.

[00:19:17] Speaker 00:
But I agree.

[00:19:17] Speaker 00:
I would like to touch on cooperation.

[00:19:20] Speaker 00:
And I think it raises a lot of the same issues.

[00:19:22] Speaker 00:
Really, you know, exemplary because the discussion from the ventures are intertwined with the cooperation documents when they're discussing the conceptions.

[00:19:30] Speaker 00:
So it's kind of intermixed here.

[00:19:32] Speaker 03:
The only – the document in – I mean, I'm just going to get you right to what bothers me.

[00:19:36] Speaker 03:
Hooper.

[00:19:37] Speaker 03:
Like, what do you do with Hooper?

[00:19:38] Speaker 03:
Hooper is reporting

[00:19:40] Speaker 03:
and he is an expert, not one of the inventors.

[00:19:43] Speaker 03:
So to the extent that mistakenly was pointing at an inventor's explanation of what user.tl does, I'm throwing it out.

[00:19:50] Speaker 03:
That's not corroboration.

[00:19:51] Speaker 03:
That's a circular reasoning problem.

[00:19:53] Speaker 03:
But Hooper, Hooper is an expert that is supposedly

[00:19:56] Speaker 03:
on, I guess, page 6648 of the appendix going through user.tl and explaining how he, as a software expert, understands it to operate.

[00:20:05] Speaker 03:
The board never addressed it.

[00:20:06] Speaker 03:
What do we do about that?

[00:20:07] Speaker 00:
Sure.

[00:20:08] Speaker 00:
I think, Your Honor, it's important to look at what Dr. Hooper actually says, which is not very much.

[00:20:14] Speaker 00:
He, if you compare his testimony at appendix 6648 discussing the source code, for instance,

[00:20:20] Speaker 00:
He, comparing the testimony from him and Ms.

[00:20:23] Speaker 00:
Fu, they're nearly identical.

[00:20:25] Speaker 00:
Mr. Hooper doesn't provide any other details.

[00:20:27] Speaker 03:
Yeah, but I won't rely on Ms.

[00:20:28] Speaker 03:
Fu because, again, you can't help yourself with stuff you can't help yourself with, right?

[00:20:32] Speaker 03:
Ms.

[00:20:32] Speaker 03:
Fu is one of the inventors.

[00:20:34] Speaker 03:
She can't corroborate her own testimony.

[00:20:36] Speaker 03:
So who cares what she said?

[00:20:38] Speaker 03:
But Mr. Hooper is not one of the inventors.

[00:20:39] Speaker 00:
Sure.

[00:20:40] Speaker 00:
Yeah.

[00:20:41] Speaker 00:
And Your Honor, I think this goes to an issue of reweighing the testimony.

[00:20:47] Speaker 00:
And perhaps the board could have relied on Dr. Hooper, or it could have relied on Ozick's testimony.

[00:20:51] Speaker 00:
And Dr. Ozick's testimony

[00:20:53] Speaker 00:
He was personally involved with this code.

[00:20:55] Speaker 00:
He knows about it, and he testified specifically that it doesn't tell you how it works, and he can't tell how it works.

[00:21:02] Speaker 00:
And so I think that's important here, because they have personal knowledge of this material.

[00:21:07] Speaker 00:
They worked on this code, and I don't think we should discount the adverse testimony from these inventors merely because they're inventors.

[00:21:15] Speaker 00:
If it was testimony of an interested party in their favor, you know, we would see a reason to discount it.

[00:21:21] Speaker 00:
But here where the inventor testifies against their interests and talks about the fact that the code doesn't actually show how it operates, I think that's important testimony the board was entitled to rely on and certainly supports the board's decision.

[00:21:35] Speaker 03:
Okay.

[00:21:36] Speaker 03:
So this is the one piece that we talked about a minute ago with regard to that footnote 14 that I'm still struggling with.

[00:21:41] Speaker 03:
You're saying the board found the code doesn't show how it operates.

[00:21:45] Speaker 03:
I don't see the board having found that.

[00:21:47] Speaker 03:
I see the board explaining that Mr. Ozick's testimony was there's no explanation or definition in the software file about what the macro's function is, but that to me is commentary, nomenclature.

[00:22:05] Speaker 03:
put fluff in their code, which it's really tags so that the user can understand what's happening here.

[00:22:11] Speaker 03:
And other software doesn't.

[00:22:13] Speaker 03:
It just performs the function.

[00:22:16] Speaker 03:
I guess I'm wondering, do you think the board made a fact finding that Mr. Ozick testified that this user TL software does not disclose this?

[00:22:29] Speaker 03:
or it just doesn't explain it.

[00:22:30] Speaker 03:
Do you understand the difference I'm trying to draw?

[00:22:32] Speaker 03:
I'm just trying to understand exactly what the board's fact-finding is.

[00:22:36] Speaker 00:
Yes, I think the board made a fact-finding that it doesn't disclose this.

[00:22:40] Speaker 03:
And you think that's all in Put Note 14, that one sentence?

[00:22:42] Speaker 03:
That's the sentence?

[00:22:43] Speaker 00:
I agree, yes, Your Honor.

[00:22:44] Speaker 00:
And I think we have to look at the testimony at sites and support it.

[00:22:47] Speaker 03:
Where is that testimony?

[00:22:48] Speaker 00:
Sure.

[00:22:49] Speaker 00:
And so we can look at the testimony of appendix 4391.

[00:22:53] Speaker 00:
And here, he was asked

[00:22:57] Speaker 00:
about the charger available macro or function.

[00:23:04] Speaker 00:
Sorry, I'm trying to get there.

[00:23:13] Speaker 00:
Got it.

[00:23:14] Speaker 00:
And he agreed that the file doesn't explain how the charger available macro or function works.

[00:23:19] Speaker 00:
It's simply silent on how it operates.

[00:23:24] Speaker 00:
And all it says is Charterville.

[00:23:26] Speaker 00:
We have to look somewhere else to find it.

[00:23:28] Speaker 00:
And I think, also, although the board didn't cite it, there's additional record evidence of Mr. Ozick's testimony that's very pertinent here.

[00:23:34] Speaker 00:
And that's a pair of appendix 5135.

[00:23:43] Speaker 00:
And Baring talks about the function, this charger available function, said it looks like it just takes controlled robots when there's a charger present, plugged in, or perhaps docked.

[00:23:56] Speaker 03:
And what page, I'm sorry, what page do you want me to look at now?

[00:23:59] Speaker 03:
I'm just trying to find it.

[00:24:00] Speaker 03:
Yes, you are.

[00:24:02] Speaker 00:
5135.

[00:24:14] Speaker 00:
you've got to go to the site that testimony can we really have it i think so it supports the board's decision and we can look at the entire record to see if the conclusions by the border support and i think this firmly supports it uh... hearing says look it just takes control or a lot when the charter president plugged in or press dot and ask june looking at this code whether the robot would have plugged in or dot

[00:24:37] Speaker 00:
And he responds that, from the robot's point of view, they're the same.

[00:24:40] Speaker 00:
At an abstract level, whether it's plugged in or sitting in the dots, you know, it's the same thing.

[00:24:45] Speaker 00:
And he would have to look elsewhere to see how it actually operates.

[00:24:48] Speaker 03:
So I don't know what I'm supposed to take away from 5135.

[00:24:51] Speaker 03:
It looks like the answer he gave is, I can't answer the question of what, and this is exactly what my concern was with footnote 14, that I can't answer the question of a definition of the charger available macro

[00:25:05] Speaker 03:
And he says, unless I could read the whole code, because then I could guarantee I'm getting it right.

[00:25:10] Speaker 03:
So what I understand he's saying is that the face of the code doesn't tell somebody who's just looking at it.

[00:25:18] Speaker 03:
A software programmer would have to really track, would have to wind their way through the code in order to understand what it does.

[00:25:26] Speaker 00:
I wrote about never provided the code that shows how it actually works.

[00:25:31] Speaker 03:
This charter available function is just... I thought user.tl was...

[00:25:37] Speaker 00:
This was a user got to disclose, but the code of how charger available code.

[00:25:42] Speaker 00:
It's different code that was never provided and it's undisputed.

[00:25:45] Speaker 00:
It wasn't provided.

[00:25:46] Speaker 00:
The charger available is essentially like looking at an index in a book.

[00:25:50] Speaker 00:
You can see what the chapter's name is, but if you want to see what happened in that chapter, you have to go to the chapter and read it.

[00:25:55] Speaker 00:
And we never got the code to show how it.

[00:25:57] Speaker 00:
how you read it and what it does and what happened there.

[00:26:00] Speaker 00:
And that's undisputed in the hearing before the PTAB.

[00:26:03] Speaker 00:
I wrote this, the attorneys admitted that that wasn't present, it wasn't produced.

[00:26:06] Speaker 00:
And so we have just the word, charter available question mark.

[00:26:09] Speaker 03:
So this is helpful.

[00:26:11] Speaker 03:
So what you're telling me is that in this case, Mr. Ozick couldn't explain that what the software disclosed and you're saying if that's because the relevant software macro

[00:26:27] Speaker 03:
was not ever disclosed.

[00:26:29] Speaker 03:
The source code for the wrong software macro was never disclosed.

[00:26:33] Speaker 03:
So we know we have the label, like insert macro here, but we don't have what the source code is, and your site was never given a chance to look at it.

[00:26:42] Speaker 03:
But obviously, they had an expert.

[00:26:45] Speaker 03:
Did their expert look at it and apply on it, Mr. Hooper?

[00:26:47] Speaker 00:
no, your honor, it was never provided.

[00:26:49] Speaker 00:
It was never given to us.

[00:26:51] Speaker 00:
So all we know is that they were looking, is a charter available?

[00:26:55] Speaker 00:
How they figured that out or if they had even figured out how they wanted to do it was never disclosed.

[00:27:00] Speaker 00:
And so that's the issue.

[00:27:02] Speaker 00:
They're trying to say that they conceived this by this particular date.

[00:27:06] Speaker 00:
This code supports them.

[00:27:07] Speaker 00:
But the code is just a black box.

[00:27:09] Speaker 00:
It just says,

[00:27:10] Speaker 00:
hey, here's something that we'll tell you if the chart is available.

[00:27:13] Speaker 00:
And Mr. Ozick said, well, if I want to actually figure out how it does that, I'd have to look and see where it's fine.

[00:27:18] Speaker 00:
And that wasn't provided.

[00:27:19] Speaker 00:
And that's the issue.

[00:27:22] Speaker 04:
The chief judge asked your friend on the other side about a document that begins at age 67 to 69, a software task list and schedule.

[00:27:28] Speaker 04:
Do you have anything to say about that?

[00:27:30] Speaker 00:
Yes, Your Honor.

[00:27:31] Speaker 00:
I don't believe that the board made a finding about this document because I don't believe I would have actually cited this document

[00:27:37] Speaker 00:
as corroboration for conception before the PTAB.

[00:27:41] Speaker 00:
And so, you know, this is a new argument that was raised on appeal.

[00:27:44] Speaker 00:
Certainly they cited this document in other parts of the brief, you know, for background or other limitations or perhaps for diligence, but they don't cite this document before the board for conception, reduction of practice of this limitation.

[00:27:57] Speaker 00:
And so I don't believe the board made a finding on this.

[00:27:59] Speaker 00:
We argue that it post-dates it, but certainly we don't have the board's input on this because they and the driver raised this before the board for this issue.

[00:28:07] Speaker 00:
And Your Honor, if I may just briefly touch on the other document that they address, because I think it is important.

[00:28:13] Speaker 00:
Again, they talk about this Roomba Design Strategies document that talks about DOC on charging.

[00:28:21] Speaker 00:
And so briefly, Your Honor, the issue here is the Board made certain findings about this document, and there's testimony that supports the Board's findings.

[00:28:30] Speaker 00:
And I think one critical part of the Board's findings is that

[00:28:33] Speaker 00:
The document talks about a logic input, but doesn't actually say what it's doing, what logic it's following.

[00:28:39] Speaker 00:
How is it actually deterring that the chart is available?

[00:28:43] Speaker 00:
It doesn't show that, just like the code didn't.

[00:28:45] Speaker 00:
And the board found that it doesn't disclose that, and says there is also reference to the Roomba and charging recognizing the document has been achieved, but there's no indication as to how this recognition is accomplished.

[00:28:58] Speaker 00:
And Mr. Cross, an engineer by robot, at appendix 4267, agreed that it's silent as to what's driving that input, how it's working, and that directly supports the board's decision.

[00:29:11] Speaker 00:
And also, Ms.

[00:29:12] Speaker 00:
Boone's testimony at appendix 4744 to 4745, she testified that she can't conclude included.

[00:29:20] Speaker 03:
You're right.

[00:29:22] Speaker 00:
Thank you, Irene.

[00:29:23] Speaker 00:
I'll rest on our briefing for our process.

[00:29:33] Speaker 02:
the court.

[00:29:35] Speaker 02:
Let me focus on corroborations.

[00:29:36] Speaker 02:
I know there's concerns with corroboration.

[00:29:40] Speaker 02:
First of all, I will say, under generally, the court can't rely on the portion of the record that the board didn't cite on Appendix 5135.

[00:29:49] Speaker 02:
Focusing on

[00:29:52] Speaker 02:
The main argument is that the evidence, the source code, does not say how the detection is.

[00:29:58] Speaker 02:
I would remind the court that the claims also do not recite very specific details on how this detection is made.

[00:30:06] Speaker 02:
And so this sort of is a false requirement to have to show the level of detail that's not even recited in the claim.

[00:30:13] Speaker 02:
Moreover, when we look at the appendix, the evidence, and I want to just focus just a moment on exhibit 2016.

[00:30:21] Speaker 02:
This is on appendix 67, 65.

[00:30:23] Speaker 02:
This is the design strategy document.

[00:30:26] Speaker 02:
It could not be more clear that what was being discussed in this document is that whether the external charger is available, i.e.

[00:30:35] Speaker 02:
when good contact has been made.

[00:30:38] Speaker 02:
So when you look at this, about charger being available because there's good contact,

[00:30:43] Speaker 02:
The only interpretation of this that makes sense, which is completely backed up by Dr. Hooper, is that of electric contact.

[00:30:52] Speaker 02:
And just at the second sentence in paragraph 57 of Dr. Hooper's declaration on Appendix 6648, he explains that this description I just read indicates

[00:31:03] Speaker 02:
that the ruler would stop its forward movement to the dock at the charger when it detects contacts with the charging terminal on the base station.

[00:31:11] Speaker 02:
This is evidence that was before the board, before it discounted this evidence using, we would say, an incorrect legal test, requiring too much detail for conception, which is ultimately just looking to see if the inventor's story is credible.

[00:31:26] Speaker 02:
Given my time has expired, I will sit down and list your questions.

[00:31:30] Speaker 02:
I thank both counsels.

[00:31:31] Speaker 02:
This case is taken under submission.

[00:31:33] Speaker 02:
Both counsels have an excellent mastery of the record.

[00:31:35] Speaker 03:
Thank you.