[00:00:00] Speaker 02:
Good morning.

[00:00:00] Speaker 02:
We have four appeals today, one submitted case, and three argued.

[00:00:08] Speaker 02:
Our first argued appeal is docket number 22-2108, OmniTrack LLC versus Platform Science Incorporated.

[00:00:18] Speaker 02:
Mr. Wilcox, please begin.

[00:00:26] Speaker 00:
Thank you Judge Ten and may it please support Jason Wilcox on behalf of Omnitrax.

[00:00:31] Speaker 00:
The board's decision rests on a flawed obviousness analysis that starts with Omnitrax's invention and works backwards from there by reading the prior art with Omnitrax's solution already in mind rather than from the perspective of a skilled artisan

[00:00:46] Speaker 00:
before Omnitrax's invention, who was not single-mindedly looking for a preconceived solution.

[00:00:52] Speaker 00:
This led the board to erroneously find that the Moses reference teaches two key claim limitations that simply aren't there.

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I'm happy to address either one, but I'd like to start with selecting a prescriptive action from a database of prescriptive actions.

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So Moses does not contemplate prescriptive actions at all, much less selecting them from a directory.

[00:01:14] Speaker 00:
Moses is directed to solving a different problem with a different solution.

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What Moses is concerned about is identifying who to call when there is an emergency, not what to do, and instead trust the independent judgment of the first responders to make that decision.

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You can see that in paragraphs two to four of the Moses reference.

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You can see that at paragraphs 40 to 45 of the Moses reference, and I think it carries through its disclosures.

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Would you say this is a classic, substantial evidence of gender review case?

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It's all about fact-finding.

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It all comes down to whether the board was unreasonable in the way it read the Moses reference.

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Is that right?

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I think that is largely right, Judge Penn.

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There's one issue that I'll get to in a minute where I think maybe we have something like a TQ Delta problem or a nuvasive problem where the board didn't do the searching analysis it needs to do and there's not substantial evidence because the expert testimony it relied on is too conclusory.

[00:02:13] Speaker 00:
For the most part, I agree.

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This is a substantial evidence appeal.

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I recognize that standard of review is difficult, but substantial evidence isn't a useless standard, and there still does have to be substantial evidence for the board's decision.

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And we think that when you look at Moses as a whole, Moses simply does not disclose a prescriptive action among other limitations.

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If Moses' call center, in fact, does send out a message

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to, I don't know, local fire stations that says, literally, stop the trucks.

[00:02:51] Speaker 02:
That would be a prescriptive action, right?

[00:02:54] Speaker 00:
I agree, Judge.

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If that is what Moses' system, in fact, did, that would be a prescriptive action.

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And then at paragraph 32, it does, Moses says, automatically issue alert notices to authorities to stop the trucks in transit.

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lock off the suspected target area, et cetera.

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And I don't know.

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I mean, it's hard for us, I think, to say that that was an unreasonable reading of the Moses reference to when they were able to lift this exact language out of the reference to teach this what we agree is a prescriptive action.

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If that is all we had from Moses, Judge Chen, I agree that would be challenging for us.

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But I think that under Warsaw and other cases from this court, you have to look at the reference as a whole to put that teaching in context.

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And when you look at, for example, the table that's at Appendix 1089 from Moses, which is described in paragraph 42,

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It gives you an example of what one of these alerts look like and what these rules and rule tables look like, and what's not there is any type of actual instruction to do something.

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It says what generates the event, what its priority is, and who to call.

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And that carries through Moses from beginning to end, whether you're looking at the problem it's trying to solve,

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at paragraph 2 to 4 or its description of the alerts not just in paragraph 42 but it actually gives an example of what an alert contains at paragraph 39 with the example of a truck with chemical waste and what it contains is location information and other information of that sort.

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It doesn't give any type of prescriptive action of what you're supposed to do.

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That's the same for the example that's in paragraph 45.

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So when you have all of those teachings telling you what an alert is and what it contains and then you look at what's in paragraph 32

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I think that what a skilled artisan would take away from that is that Moses is sending an alert to alert the first responders so that they can then take those actions, but it's not telling them to take that action.

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And that's what our expert also said in Appendix 16.

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What are we supposed to make from Iran 335 pattern column 8, which talks about how notifications and alerts can also be considered restrictive actions?

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So it does say that, and right before that, in the preceding sentence, it talks about what those prescriptive actions look like, and it says that they're recommendations of actions to take.

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That's also the board's understanding of what a prescriptive action is at Appendix 30.

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That was the understanding that platform sciences expert had.

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for example, when you look at Appendix 993 to 995.

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So I think everyone understood it has to be more than just an alert that just tells you something is happening.

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It has to be an action to take.

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That's the dictionary definition of what a prescriptive action is as the board recognized at Appendix 30.

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So just sending an alert isn't enough.

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I think that also follows from the claim language itself, Judge Chen.

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If you look at the claim language,

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It says that you generate in real time a proactive alert notification with the prescriptive action for a user.

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So it's telling you there has to be more than just an alert.

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It has to be an alert that includes a prescriptive action that's telling you what steps to take and what actions to take.

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We think that's what's missing from Moses.

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We talked about the Paragraph 32 example, Judge Chen, and why we think that's not right.

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The board also relied on Paragraph 38, and it read Paragraph 38 and its discussion of instructions to be teaching you.

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What is the alert or notification that Moses Cult Center is sending to local police and local fire station when it says,

[00:06:35] Speaker 02:
a four-tanker truck coming towards the city town square.

[00:06:41] Speaker 02:
There has to be a little more information than just sending a red light to the top, right?

[00:06:48] Speaker 00:
I agree.

[00:06:48] Speaker 00:
So if you look at paragraph 39 of Moses through example, what it says is that that alert will include vehicle information.

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This is about a runaway truck that's got hazardous waste on it.

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Vehicle information, the location of the truck, the material that it has, and response information like

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where to go and essentially what type of unit is needed.

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What it doesn't do is it doesn't tell them, and here's how you deal with the chemical situation.

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It leaves that to their judgment and their understanding, trusting the first responders.

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to know what to do, rather than trying to prescribe to them, here are the recommended actions you need to take to deal with this emergency.

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And that makes a lot of sense in the context of Moses, because as it says in paragraphs 32 and 34, it's in some ways trying to predict events that haven't happened yet.

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And so having this pre-plan gives exactly how you can respond to an event that we're just predicting might happen is a little bit difficult.

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And figuring out how to deal with a large-scale mass casualty event or something of that sort

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is difficult, and it's hard to have preset rules.

[00:07:51] Speaker 03:
Instead, that's why you want to trust the judgment of... Have you moved to the issue of event, or is what you're saying about prescriptive action?

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Which one are you saying is missing from Moses?

[00:08:01] Speaker 00:
I'm still saying prescriptive action.

[00:08:03] Speaker 00:
I can talk about event if you want.

[00:08:05] Speaker 00:
I think that my stronger argument is both prescriptive action and the fact that there's not a directory of prescriptive actions in Moses.

[00:08:11] Speaker 00:
We do also think that the event is missing.

[00:08:14] Speaker 03:
At least on event, maybe we can deal with it quickly.

[00:08:18] Speaker 03:
The board applied the same construction that you were proposing to them, but we don't have a claim construction dispute on that, correct?

[00:08:26] Speaker 00:
There's no claim construction dispute about event.

[00:08:28] Speaker 00:
It's a substantial evidence argument about whether what is there and what is disclosed in Moses is in fact an event.

[00:08:34] Speaker 00:
just in a disagreement, which, you know, we think that there's no substantial support evidence for the board's position about whether, for example, in paragraphs 31 and 32, you have these examples of either a fuel spill or a speeding vehicle, whether what happens is you get raw event data information like, hey, a valve is open on the truck, or here is its current speed, which is a type of information.

[00:08:56] Speaker 03:
But you're not asking us to construe event as requiring

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you know, the truck is going X miles an hour and the speed limit there is X minus something, therefore we have the event of speeding.

[00:09:09] Speaker 03:
You're not asking, that's not something we have to decide as a question of law what an event is, right?

[00:09:16] Speaker 00:
No, you don't have to decide that as a question of law, I agree.

[00:09:18] Speaker 00:
We're not bringing you a claim construction dispute.

[00:09:20] Speaker 00:
I think you do have to decide though that the event in Moses that is getting transmitted is that type of information about a fuel spill or

[00:09:29] Speaker 00:
or the truck is actually speeding and not just kind of the raw information of here's the speed and then on the back end you figure out that's too fast for that road and the reason why is actually because of other claim limitations and the way the board analyzed them so for example the claim also requires determining whether the at least one event meets the defined condition

[00:09:49] Speaker 00:
The events that the board found Moses teaches that are then compared against the divine defined condition are those kind of top level events about there is a fuel spill or there is a truck that is going too fast on the specific road.

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It wasn't just the raw data of here is the truck speed.

[00:10:07] Speaker 00:
So even if you thought that just that raw data about what the truck speed is would be enough to be an event, that isn't the way the board thought about it when it applied it to the other claim limitations.

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So on APA review, you would have to send it back.

[00:10:20] Speaker 00:
The only way you can not send it back is to conclude that the events that are being sent are actually, this truck is going too fast for this road or there is a fuel spill.

[00:10:31] Speaker 00:
We think that isn't what Moses teaches.

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We think that if you look at the type of information that Moses stores at his database at paragraphs 17, 25, 28, and then 32 to 33, it is all storing essentially raw information or information about population centers or what resources are available.

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It's not storing the actual events themselves that it's receiving from the vehicle.

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So we don't think you can affirm on that ground, but that is the basis on which I think you would have to affirm if you were going to affirm based on event.

[00:11:03] Speaker 00:
Now just to get back to one last point on prescriptive action.

[00:11:07] Speaker 00:
And my final point is even if you think that Moses does teach a prescriptive action, it doesn't teach a directory of prescriptive actions.

[00:11:15] Speaker 00:
which everyone agrees is a list of items used to reference those items.

[00:11:21] Speaker 00:
That's the definition that Platform Science's expert used in Appendix 993, and it's the one that Platform Science used on page 21 of its petition.

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If you look at, for example, the table at Appendix 1089 from Moses,

[00:11:38] Speaker 00:
It stores conditions, who to notify, and the notice.

[00:11:42] Speaker 00:
But even if you think that these rules that are being there also are included, even though they're not shown in the table, that might be then a prescriptive action, but it's still not showing you a directory of prescriptive actions where you have a list of prescriptive actions and you choose from that list of prescriptive actions to decide how to respond to an event.

[00:12:00] Speaker 00:
What the board said to get there, which you can see at Appendix 34, is that, well, response instructions installed in a rules engine program qualify as a directory.

[00:12:11] Speaker 00:
That was all of its analysis.

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So to get back to my earlier remark, Judge Ten, we don't think that under Nubasive and ANOVA, that's the type of searching, obviousness inquiry that you need to do.

[00:12:20] Speaker 00:
There needs to be some explanation of why that satisfies the definition of what is a directory.

[00:12:25] Speaker 02:
The question is if Moses' references to

[00:12:30] Speaker 02:
the call center having things like instructions or response boards or other things that maybe we would consider to be constructive actions, they have to be stored somewhere, right?

[00:12:44] Speaker 00:
I agree they have to be stored somewhere.

[00:12:45] Speaker 02:
They have to be probably stored in some kind of database.

[00:12:48] Speaker 00:
They have to be stored in some kind of a database.

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What they don't have to be stored in is a directory.

[00:12:52] Speaker 02:
Now I'm trying to understand what's the delta, what's the daylight between a directory and a database.

[00:12:59] Speaker 02:
are probably making a mountain out of a molehill.

[00:13:01] Speaker 00:
Well, I don't think that we are making a mountain out of a molehill.

[00:13:03] Speaker 00:
I think that what the delta is... So when you're talking about a directory, what's that honorable advance?

[00:13:08] Speaker 02:
What is the contribution to the useful arts about a directory versus a database?

[00:13:13] Speaker 00:
So first off, the contribution to the useful arts, I think, is the entire claim and how you combine all of the elements, obviously, but setting that aside.

[00:13:19] Speaker 02:
I'm just trying to understand...

[00:13:20] Speaker 02:
directory versus database.

[00:13:23] Speaker 00:
I think the difference is how it is organized and the directory is that it's listing out the prescriptive actions and you go in and you pick out the prescriptive action.

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The rules in the way they're described in Moses, you have a rule and it says here is the action you take.

[00:13:37] Speaker 02:
Why wouldn't that be true for a database as well?

[00:13:40] Speaker 00:
You could organize a database that way.

[00:13:42] Speaker 00:
That doesn't seem to be the way Moses does do it, though.

[00:13:44] Speaker 00:
There's nothing in Moses that says you organize it in that way.

[00:13:47] Speaker 00:
What makes this, and that does go to what makes this an invention and what makes this special, was that there wasn't just, hey, here's a rule and here's the action you have to take.

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You see that there's an event.

[00:13:57] Speaker 00:
You go, and you look, and you have an entire menu of prescriptive actions, and you decide, given all of the contextual information I have, what's the right response in this specific circumstance?

[00:14:07] Speaker 00:
So I have a separate directory of prescriptive actions.

[00:14:10] Speaker 00:
Then it's not just a one-to-one correspondence of, here's my rule, and here's my response.

[00:14:13] Speaker 00:
We think that's what's missing.

[00:14:14] Speaker 02:
I'll save the rest of my time for one last question.

[00:14:18] Speaker 00:
Thank you, Judge Chen.

[00:14:21] Speaker 02:
Mr. Richards.

[00:14:24] Speaker 01:
Good morning, your honor.

[00:14:25] Speaker 01:
Oliver Richards on behalf of Platform Science, may I please report?

[00:14:29] Speaker 01:
As the court noted early on in Mr. Wilcox's argument, this is a straightforward, substantial appeal.

[00:14:36] Speaker 01:
There's evidence in the briefings, and both here and below, the parties have disagreements as to how to read those.

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What a prior reference teaches and how a skilled artist would understand those teachings, these are quintessential questions of fact.

[00:14:48] Speaker 01:
The board below is statutorily authorized to resolve factual questions.

[00:14:54] Speaker 01:
The board did so carefully.

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It weighed the party's arguments.

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It weighed the evidence, including Moses, the testimony from the experts, and resolved those factual questions in platform science's favor.

[00:15:05] Speaker 01:
Now on appeal, all on drags appears to raise our disagreements with the board's factual findings.

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This court therefore need only consider whether the board's finances are supported by substantial evidence.

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Because they are, this court must affirm.

[00:15:18] Speaker 01:
So as Mr. Wilcox pointed out, there's two limitations on appeal.

[00:15:21] Speaker 01:
I'm happy to take them in any order the court wishes.

[00:15:24] Speaker 02:
Can you talk about this table on page 1089 of notice?

[00:15:30] Speaker 01:
Sure.

[00:15:31] Speaker 02:
I think if you look at two paragraphs of action questions.

[00:15:35] Speaker 01:
If you look at two paragraphs earlier, paragraph 40, there's a preference to the discussion of that table that talks about this is an additional feature of this system.

[00:15:44] Speaker 01:
It provides for notices to agencies and the carriers themselves.

[00:15:49] Speaker 01:
I don't think it takes anything away from the earlier teachings, which is about notifications to the authority.

[00:15:54] Speaker 01:
So if we look at paragraph 40, it says it will be appreciated.

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An additional module may be incorporated and implemented into the processor 29 for the purposes of allowing potential Bernold vulnerable target to receive proper notifications.

[00:16:05] Speaker 01:
So if you look down at paragraph 42, it talks about these notifications and it talks about to the carrier and the agency carrier.

[00:16:13] Speaker 01:
Prior references often contain many different teachings, right?

[00:16:17] Speaker 01:
And you've got different alternatives that can be applied.

[00:16:20] Speaker 01:
And there's nothing here that takes away from the earlier express teachings, as the court pointed out, there are express teachings in here as to what the notifications to the authorities are.

[00:16:32] Speaker 01:
For example, in paragraph 32, it expressly says, it talks about what the processor does.

[00:16:39] Speaker 01:
Excuse me, in paragraph 31, it talks about that the processor sends this information to the authorities to stop the trucks.

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This is something the system does.

[00:16:48] Speaker 01:
This is an express teaching.

[00:16:50] Speaker 01:
More than that, you know, it doesn't matter what I think, you know, it matters what the board thinks, right?

[00:16:55] Speaker 01:
The board is entitled to resolve these factual disagreements, right?

[00:16:59] Speaker 01:
Certainly they were entitled to look at paragraph 31 and 32 and look at omnitractic arguments, look at our arguments and decide whose arguments were better based on the evidence.

[00:17:09] Speaker 01:
And all this court need to consider is whether there's substantial evidence.

[00:17:12] Speaker 01:
Paragraph 31 and 32 are substantial evidence in support of the board's factual determination.

[00:17:18] Speaker 03:
What about the directory?

[00:17:19] Speaker 03:
Does the board make a specific finding that Moses discloses the directory?

[00:17:24] Speaker 01:
Yes.

[00:17:25] Speaker 01:
I think that the case that pointed out, there's a single sentence.

[00:17:28] Speaker 01:
There's certainly more than a single sentence here.

[00:17:31] Speaker 01:
The board, as Judge Chen noted, there's not a whole lot of teachings in the 335 patent about what a directory is.

[00:17:37] Speaker 01:
There's certainly no specific requirement about the structure it must take.

[00:17:41] Speaker 01:
It's really just storage and memory.

[00:17:44] Speaker 01:
The board does reach specifically spends like a page and a half discussing directory.

[00:17:54] Speaker 02:
Apologies.

[00:18:01] Speaker 01:
Yeah, that's 34 and 35.

[00:18:02] Speaker 01:
The board discusses what a directory is and spends a whole paragraph spending about a page on it.

[00:18:08] Speaker 01:
You know, it addresses all the tracks of arguments, which are the same ones they make on appeal, and it makes specific fact-findings rejected.

[00:18:14] Speaker 01:
Accepting the testimony of platform science as expert, and of course expert testimony is substantial evidence in support of the board's findings.

[00:18:22] Speaker 03:
Does the board grapple with a distinction between database and directory, and is that something we should be concerned with?

[00:18:28] Speaker 01:
I think there's ample case law from this court saying the board's required to address arguments to the extent they're raised.

[00:18:35] Speaker 01:
That really wasn't a distinction raised.

[00:18:37] Speaker 01:
They just said it wasn't a directory.

[00:18:39] Speaker 01:
Our expert pointed out that what the three-year patent says is a directory is simply storage, and it pointed to the teachings of Moses and says, yes, of course there's storage of these prescriptive actions that must be there.

[00:18:50] Speaker 01:
That's how computers work.

[00:18:53] Speaker 01:
The computers store things and then reproduce them.

[00:18:56] Speaker 01:
The board was entitled to rely on that expert testimony.

[00:19:03] Speaker 01:
I'm happy to address any other questions the panel has.

[00:19:06] Speaker 01:
I'll just point out that the board here did.

[00:19:10] Speaker 01:
This is not a situation that the board did a shoddy job.

[00:19:13] Speaker 01:
The board carefully considered the evidence, and we even went on to specifically address and express factual findings rejecting the very arguments that Almond Tractor is now making here on appeal.

[00:19:25] Speaker 01:
of course entitled to its view, but the board is entitled to reject that view.

[00:19:29] Speaker 01:
That board's rejection of that view is supported by substantial evidence this court must affirm.

[00:19:34] Speaker 03:
I have a question I guess not directly related to the merits, but I was a little troubled by some of the language in your brief.

[00:19:40] Speaker 03:
I don't know if you drafted the brief or not, but page 30, simply articulating the consequence of Omnitrax's proposed definitional event causes embarrassment because it is so absurd.

[00:19:54] Speaker 03:
Page 43, Omnitrax employees are different yet equally insidious diversionary tactic misdirection.

[00:20:02] Speaker 03:
I'm not sure if I have a question, but that sort of language just stuck out and I think at times distracted me from the arguments you were trying to make.

[00:20:10] Speaker 03:
So I just thought I'd give you a chance to respond to that if you wanted.

[00:20:13] Speaker 01:
Sure.

[00:20:13] Speaker 01:
I apologize to the court if it is a brief with more incendiary than would be my usual stylist's preferences.

[00:20:20] Speaker 01:
And no offense was intended either to the court or opposing counsel.

[00:20:25] Speaker 01:
I do know that though...

[00:20:27] Speaker 02:
Yes, and flourishes of language in reference to the Marx Brothers.

[00:20:32] Speaker 02:
We don't respond to that kind of language.

[00:20:34] Speaker 01:
I understand, Your Honor.

[00:20:37] Speaker 01:
Thank you so much for your time.

[00:20:46] Speaker 00:
Thank you, Judge Chen.

[00:20:48] Speaker 00:
Just a couple quick points in rebuttal.

[00:20:50] Speaker 00:
So first on the idea that the table at Appendix 1089 is just an additional feature.

[00:20:55] Speaker 00:
I think it's not an additional feature, which you can see if you look at Moses from beginning to end.

[00:21:00] Speaker 00:
So if you look at, for example, paragraphs two to four of Moses,

[00:21:03] Speaker 00:
what it is describing as it's the problem it's trying to solve and the solution it offers is figuring out who to call when you have a mass casualty event and the problem that existed before Moses of how you know who to call and what resources are available.

[00:21:18] Speaker 00:
And that's exactly what the table of appendix 1089 is implementing.

[00:21:22] Speaker 00:
The one thing it's not implementing is prescriptive actions.

[00:21:24] Speaker 00:
Now on directory, my friend on the other side

[00:21:28] Speaker 00:
said that their expert claimed it's just storage and memory.

[00:21:30] Speaker 00:
There's no difference between a directory and a database.

[00:21:33] Speaker 00:
That's respectfully not the definition that their expert was using below.

[00:21:38] Speaker 00:
If you look at Appendix 993, their expert says that a directory is a list of data items and information about those items used to reference those items.

[00:21:50] Speaker 00:
That's what we think a directory is too.

[00:21:51] Speaker 00:
So it has to have that special table that you use to actually reference the items.

[00:21:56] Speaker 00:
That's also the definition that Platform Science itself used in its petition at page 21.

[00:22:01] Speaker 00:
So it's expert thought that a directory is something special and is more than just storage and memory.

[00:22:07] Speaker 00:
The board didn't really grapple with that if you look at Appendix 34, the page that you were discussing with Council Judge Chen and Judge Stark.

[00:22:16] Speaker 02:
what the board, and as far as their expert in his testimony, I think if you look at Appendix 995... Was there an argument below that, oh my goodness, anything, any storage of the rules and instructions in Moses in their database wouldn't have the needed pointers?

[00:22:37] Speaker 02:
to the actual different instructions and response rules?

[00:22:41] Speaker 00:
So we did point out that they didn't have substantial evidence to show that it would have the necessary structure in Appendix 1673 to 74.

[00:22:48] Speaker 00:
That's obviously ultimately their burden.

[00:22:50] Speaker 00:
So even if we didn't make the argument, they still have to live with their own definition and make sure that they have substantial evidence

[00:22:55] Speaker 00:
to support it.

[00:22:56] Speaker 00:
And the last thing I'll say, because I see my time is up, is they're experts at the testimony he relied on.

[00:23:01] Speaker 00:
If you look at appendix 995, it's the same one sentence conclusory assertion that the board relied on.

[00:23:09] Speaker 00:
That's not enough under TQ Delta or DSS technologies.

[00:23:12] Speaker 00:
Thank you, Your Honor.

[00:23:13] Speaker 02:
Thank you very much.