[00:00:00] Speaker 03: First out of the case is Vivint, if that's the proper pronunciation, versus AVT, 2023, 1995. [00:00:08] Speaker 03: Mr. Freeman. [00:00:10] Speaker 03: Thank you, Your Honor. [00:00:14] Speaker 02: May it please the court? [00:00:16] Speaker 02: Good morning. [00:00:16] Speaker 02: My name is Parrish Freeman. [00:00:18] Speaker 02: I represent the appellate with Vivint in this matter. [00:00:22] Speaker 02: We're here today on a claim construction issue. [00:00:24] Speaker 02: The claim language at issue is a predefined area. [00:00:27] Speaker 02: And we need to decide whether the board got it right when they said it's an area that it's defined in advance as the only construction they gave, or whether Vivint's construction is correct, which involves interacting with the screen to select an area to focus attention on. [00:00:43] Speaker 04: You don't challenge the defined in advance part of it. [00:00:46] Speaker 04: You just say there should be interaction. [00:00:48] Speaker 02: Correct. [00:00:50] Speaker 02: That's correct. [00:00:51] Speaker 02: And to your point, the board's construction really can't be correct because it doesn't resolve a conflict. [00:00:58] Speaker 02: It doesn't tell us anything about whether Jen or Monroe disclose and teach a predefined area. [00:01:05] Speaker 02: It just answers the question of when, which is a question that just doesn't address anything. [00:01:10] Speaker 02: The board also didn't cite any intrinsic record support. [00:01:14] Speaker 02: for the construction. [00:01:15] Speaker 02: So there's nothing really pointing to the idea that defined in advance gets the job done. [00:01:20] Speaker 00: But what evidence are you pointing to in the specification to say that in this method claim, there should be an additional step? [00:01:32] Speaker 00: That is, that a person would identify a predefined area within the camera's field of view. [00:01:39] Speaker 02: So first, the board agrees that there should be an additional step as well, because they [00:01:44] Speaker 02: And in response to our superfluousness argument, the step is you have to point the camera. [00:01:50] Speaker 02: It's not superfluous. [00:01:51] Speaker 02: Predefining an area is not superfluous. [00:01:53] Speaker 02: You have to point a camera. [00:01:54] Speaker 02: So a user has to do something. [00:01:56] Speaker 00: This is a question more like there's a predefined area. [00:01:59] Speaker 00: Does it matter how it's predefined? [00:02:01] Speaker 00: In other words, by a person selecting an area within the field of view or just pointing the camera, the area has to be predefined. [00:02:10] Speaker 00: But what is your support for saying that it can't just be pointing the camera? [00:02:15] Speaker 02: So it's the language in the patent that talks about the invention of securing content on a screen. [00:02:24] Speaker 02: And then there's the language in the patent about having two predefined areas, which suggests that there's one camera involved. [00:02:33] Speaker 02: But we know that there's one camera involved in the parent patent, the 990, which claims it that way. [00:02:39] Speaker 02: It claims one camera looking at two different predefined areas. [00:02:42] Speaker 02: If you're going to have two different predefined areas within the same field of view, they obviously have to be delineated from each other. [00:02:48] Speaker 02: So that's what leads us to the idea that something else is going on. [00:02:52] Speaker 04: You have different claim. [00:02:55] Speaker 04: The claims are different in the 159 from the 990. [00:03:00] Speaker 04: And while certainly, and it seems to me that the specification supports both just setting up the camera, but also setting up as would be required in the 990 patent, creating two separate areas within the same screen. [00:03:18] Speaker 02: Well, the problem with that is that it means that in the 990 patent and the 159 patent issue, the same or identical specifications, that phrase, a predefined area, means something different in the specifications of those patents. [00:03:35] Speaker 02: And that just is not consistent with the law. [00:03:38] Speaker 04: Why would it mean something different? [00:03:39] Speaker 04: You have the same predefined area, but the 990 patent just [00:03:45] Speaker 04: in the claims takes it one step further based on the specification and says in the screen you have this area and then the person moves to this area whereas in the 159 patent you just have one perimeter area. [00:04:02] Speaker 02: Well the reason is because of the obscuring language and really it's because of the extrinsic evidence as well which you know once we look through everything we still have questions the law says you can look to the extrinsic evidence and when we talk to our expert about this [00:04:16] Speaker 02: we learn about this region of interest technology. [00:04:18] Speaker 02: So that's what's in the mind of the person who's still in the art at the time, is that there is this technology that involves selecting boxes on a screen, drawing boxes on a screen. [00:04:29] Speaker 00: I hear what you're saying and I understand your argument. [00:04:31] Speaker 00: I see your specification as doing something different with predefined area. [00:04:37] Speaker 00: First of all, it doesn't [00:04:38] Speaker 00: tell, it doesn't disclose identifying a predefined area within the camera's field of view. [00:04:44] Speaker 00: I don't see that it says, hey, you're going to go ahead and look in the camera and make a circle around the part you care about. [00:04:52] Speaker 00: I mean, that step might be brought in by extrinsic evidence, but I don't see it in the specification per se. [00:04:57] Speaker 00: But more importantly, in your specification, it does define what the predefined area is in multiple places. [00:05:03] Speaker 00: For example, in column eight line, [00:05:05] Speaker 00: 15, it says, in some embodiments, predefined area 405 may include a place of business, such as a restaurant, a shop, a waiting area of a customer, client, and or patient. [00:05:16] Speaker 00: And then elsewhere, it has other examples. [00:05:18] Speaker 00: It could be a parking lot. [00:05:19] Speaker 00: It can be a parking garage. [00:05:21] Speaker 00: It says that it can be a restaurant, a building, an animal cage, a wilderness area. [00:05:26] Speaker 00: There's nothing about a person how that area is identified, not a thing that I can find in your spec. [00:05:35] Speaker 00: What is your response to that? [00:05:36] Speaker 02: So it also talks about detecting entry across a perimeter of that predefined area. [00:05:42] Speaker 02: So if you're talking about the perimeter of a wilderness area, a perimeter of an animal cage, the doorway, you're looking at the whole thing. [00:05:50] Speaker 02: And I agree, it's a little bit ambiguous, but when you take it into account with everything else, it tells us that [00:05:57] Speaker 02: When we talk about obscuring and having two different boxes or two different areas in the screen, all that together tells us this needs to be something customizable so you can zero in. [00:06:06] Speaker 02: You're looking at a bigger area, you're looking at a whole, they say it's a whole parking garage, it's a whole wilderness area. [00:06:12] Speaker 02: Do we just want to know when you encroach the perimeter? [00:06:14] Speaker 02: The perimeter of what? [00:06:15] Speaker 02: A predefined area? [00:06:16] Speaker 02: Well, then you have to be able to customize it. [00:06:18] Speaker 00: Where does your specification disclose the step of [00:06:22] Speaker 00: a user looking in the field of view of the camera, and then circling the parts that they're particularly interested in. [00:06:29] Speaker 02: It doesn't expressly disclose that step, and it doesn't expressly disclose the step of pointing, panning, zooming, like the bird said. [00:06:37] Speaker 00: That's right, but why couldn't the interpretation include both? [00:06:43] Speaker 00: It's not maybe the broadest reasonable interpretation anymore, but without the specifics being disclosed, why isn't it fair [00:06:50] Speaker 00: board reading this back to say it's the broader view. [00:06:53] Speaker 00: It could include either pointing the camera or a person identifying particular areas within the field of view of the camera. [00:07:04] Speaker 02: Well, it's the obscuring content on a screen that made me, when I started looking at all this, come to this conclusion. [00:07:14] Speaker 02: combined with speaking with our expert and looking at what the experts knew or what the person still knew at the time about the technology. [00:07:22] Speaker 02: So they're looking at it and they have in mind, they know about this region of interest. [00:07:25] Speaker 02: So when they see something that says predefined area in a vacuum, sure, that's anything. [00:07:30] Speaker 02: When you see that it could be two of those in the same field of view, you see it involves obscuring other content on the screen, and you know about this region of interest technology, [00:07:41] Speaker 02: Our expert said, well, that makes me think of region of interest technology. [00:07:43] Speaker 02: It was an interesting conversation with him, because I kind of had in mind that, but I had your problem. [00:07:48] Speaker 02: I didn't see it in there. [00:07:50] Speaker 02: And he tells me about this technology, gives me a document, and there it was. [00:07:56] Speaker 00: How do we know that when using the phrase predefined area, which the specification uses more broadly, that they were trying to bring in, what did you call it? [00:08:07] Speaker 00: What was the technology that you call predefined? [00:08:09] Speaker 00: Region of interest. [00:08:10] Speaker 00: Region of interest. [00:08:11] Speaker 00: How do I know that the intent of the inventor was to use region of interest when it's not in the specification? [00:08:19] Speaker 02: Well, for the reasons I just explained, it's written for the person's skill in the art. [00:08:25] Speaker 00: I get it. [00:08:26] Speaker 00: OK, thank you. [00:08:28] Speaker 02: So, well, there are other indications. [00:08:32] Speaker 02: It wasn't just our expert. [00:08:33] Speaker 02: We have Mr. Parker, the [00:08:36] Speaker 02: a petitioner's expert who talked about the checkerboard technology. [00:08:43] Speaker 02: Same idea. [00:08:44] Speaker 02: It doesn't involve drawing boxes, but it involves drawing a grid and you select or deselect the things that you want to obscure, keep quiet, and activate the things that you want to focus on. [00:09:12] Speaker 02: The point is that it's that combination of the things in the intrinsic record that I just mentioned. [00:09:19] Speaker 02: It drives us to look at the extrinsic evidence. [00:09:22] Speaker 02: If you look at the intrinsic record and you come to the conclusion that it's ambiguous, I think the case law tells us in that case, we have to look to the extrinsic evidence. [00:09:31] Speaker 02: At Tealion case. [00:09:32] Speaker 02: Are you saying, Mr. Frummey, you think there is ambiguity in the specification here? [00:09:36] Speaker 02: I don't think I'm saying that necessarily. [00:09:40] Speaker 02: Oh, I understand. [00:09:41] Speaker 04: But you're not saying there's ambiguity in the spec. [00:09:48] Speaker 02: I'm saying that the extrinsic evidence helps inform what's going on. [00:09:58] Speaker 02: As Judge Stoll pointed out, there's no express definition. [00:10:02] Speaker 02: So there are a lot of indications of what's going on. [00:10:05] Speaker 02: You have some mixed signals. [00:10:08] Speaker 02: That sounds like the definition of ambiguity, but I'd rather not go on the record calling my own patent ambiguous. [00:10:13] Speaker 02: No, I understand. [00:10:14] Speaker 04: So what you're saying is more a situation perhaps of the spec is there, but there aren't things. [00:10:22] Speaker 04: What's there is easily understood, but there are things that aren't there to help you if they were in there. [00:10:28] Speaker 02: That's very true. [00:10:29] Speaker 02: And also if we think about it from the standpoint of [00:10:32] Speaker 02: These are written for people of ordinary skill in the art. [00:10:35] Speaker 02: Maybe the person who wrote the patent used a little bit of shorthand and was talking to the inventor and thought, I don't need to explain this in great detail. [00:10:43] Speaker 02: They know what I'm talking about. [00:10:46] Speaker 02: I see that I'm into my rebuttal time. [00:10:48] Speaker 03: If you have any further questions in my... We'll save it for you, Mr. Simmons. [00:10:55] Speaker 03: Thank you, Your Honor. [00:11:00] Speaker 03: So I'm David Simons on behalf of ADT. [00:11:08] Speaker 01: Good morning. [00:11:09] Speaker 01: I want to start with the question of extrinsic evidence in this case and point to an important admission that was made in the oral hearing before the PTAB. [00:11:18] Speaker 01: Vivint admitted in the oral hearing that predefined area is not a term of art. [00:11:23] Speaker 01: So it is not a technical term of art of the type that you would need some context expert testimony. [00:11:28] Speaker 01: So that really compels us to focus on the intrinsic record. [00:11:32] Speaker 01: What does the specification say and what is the customary and ordinary meaning of predefined area to one of skill in the art? [00:11:38] Speaker 01: And the board properly found that predefined area is simply an area defined in advance. [00:11:43] Speaker 01: We had dictionary definitions. [00:11:44] Speaker 01: We cited to a prior case from this court which predefined area or predefined was used. [00:11:50] Speaker 01: And again, and it was not a term of art in that other case as well, and this court said, defined in advance, so it's a commonly understood meaning. [00:11:58] Speaker 01: And so the question is, is there anything in the spec that would make us depart from this customary and ordinary meaning and import this additional step into the claim? [00:12:08] Speaker 01: And there really is nothing. [00:12:09] Speaker 01: They pointed to the parent patent, but I think Judge Schall's questions raised the point that I was going to raise on that. [00:12:16] Speaker 01: They also point to this obscuring language, but this obscuring language doesn't get there. [00:12:20] Speaker 01: What that was is in the beginning of the claim, sorry, in the summary of the invention section, there's a statement that we disclose a computer system with a process. [00:12:32] Speaker 01: Let me get the exact language here. [00:12:34] Speaker 01: But it was a computing device configured to obscure content on a screen as also described. [00:12:42] Speaker 01: The device may include a processor and memory and electronic communication with the processor. [00:12:46] Speaker 01: The memory may install instructions that can then execute the method steps of the claim. [00:12:51] Speaker 01: So that's the sort of introductory board that played in the summary of the invention. [00:12:54] Speaker 01: They lean on that word obscure. [00:12:56] Speaker 01: But there's three reasons why that word obscure doesn't get all the way to importing this brand new method step into the claim. [00:13:03] Speaker 01: First, obscure and content on a screen is not in the claim. [00:13:06] Speaker 01: It's just in that summary of the invention section and just in that one place. [00:13:10] Speaker 01: Second, that obscure content on a screen is part of the computing device. [00:13:14] Speaker 01: It is not part of the definition of predefined area. [00:13:17] Speaker 01: It's not a predefined area definition. [00:13:19] Speaker 01: Another says you obscure something to define a predefined area. [00:13:23] Speaker 01: And then third, when we looked for other driven patents, we found the same basically boilerplate introductory language in other driven patents that were completely unrelated technology. [00:13:34] Speaker 01: It was mesh network patents. [00:13:35] Speaker 04: Mr. Thomas, can I ask you just one question? [00:13:37] Speaker 04: You alluded to the 990 patent that came up in the colloquy with Mr. Freeman. [00:13:42] Speaker 04: Has the 990 patent, is it in litigation? [00:13:47] Speaker 04: Is it been asserted? [00:13:48] Speaker 04: No. [00:13:49] Speaker 04: It's been before the board? [00:13:51] Speaker 01: No. [00:13:51] Speaker 01: So the 990 patent was directed at a more specific embodiment, which is disclosed in this spec, which is a parking lot embodiment. [00:14:00] Speaker 01: And what that one was about, and those claims were about, is you have a car that comes into a parking lot that's owned by a shop. [00:14:05] Speaker 01: and you have a person get out of the car. [00:14:08] Speaker 01: So it has one predefined area to detect the car, a second one to detect where the person goes. [00:14:13] Speaker 01: And the idea there is you want it to notify if someone is parking your lot but not going into your store. [00:14:19] Speaker 01: So that's what that particular embodiment does. [00:14:21] Speaker 01: But that's not in litigation. [00:14:22] Speaker 01: No, not at all. [00:14:23] Speaker 01: The accused probably has the video doorbell. [00:14:26] Speaker 01: Okay, so for the externing language, it's not in the claim, it is not linked to predefined area, and it is used in other patents that are completely unrelated, which suggests it's not invoking this, you know, regions of interest or checkerboard technology. [00:14:41] Speaker 01: If so, why is it in a mesh network patent as well? [00:14:45] Speaker 01: The proposal council also talked about detecting entry across the perimeter. [00:14:53] Speaker 01: In the specification and describing how the detecting step is performed, it says we have a predefined area that's got a predetermined perimeter and you detect when the entity crosses that perimeter. [00:15:05] Speaker 01: So it's describing the mechanics, at least in that embodiment, of how that detecting step is performed. [00:15:11] Speaker 01: It's not some sort of further limitation of the claim. [00:15:14] Speaker 01: It's not saying you draw a rectangle perimeter. [00:15:17] Speaker 01: It's just describing the mechanics. [00:15:18] Speaker 01: And again, importantly, predetermined perimeter is not in the claim. [00:15:23] Speaker 01: The claim just says predefined area. [00:15:25] Speaker 01: So there really is nothing here anywhere in the specification that would suggest this additional language or this additional importation of this method step, which is nowhere in the spec, not even cited in the file history. [00:15:36] Speaker 01: So the expert that came up with this construction and handy counseled this document describing it, [00:15:44] Speaker 01: That prior art just devised, this ivic system, wasn't even cited in prosecution. [00:15:50] Speaker 01: It's just nowhere appears. [00:15:51] Speaker 01: It came out of nowhere, except out of the expert. [00:15:53] Speaker 01: And there's just no basis to say that when a skill in the art, where we were looking for the customary and ordinary meaning of a non-term of art, would say, oh, someone reading this would think of the system I developed 20 years ago and import that methodology into the claim. [00:16:07] Speaker 01: It just can't get there. [00:16:09] Speaker 01: So the last issue I wanted to discuss was at the end of our brief, and it's this question of whether, even if they prevail on this claim construction, even if the board or each of this panel reverses the predefined area definition and adopts wholesale dividends construction, [00:16:28] Speaker 01: still need to affirm. [00:16:29] Speaker 01: This was an alternative grounds that the board had for affirming. [00:16:32] Speaker 01: And it was this, there was an admission before the board in oral hearing that this claim can actually cover the entire field of view of a camera. [00:16:41] Speaker 01: So the way this came about is the construction that ribbon offered here was a physical area defined by a user configurable region of a camera's field of view having delineated boundaries where the region within the boundary is a region of interest and any regions not within the boundary are regions of disinterest. [00:17:00] Speaker 01: That's the construction that the expert proposed and it was in their briefing. [00:17:04] Speaker 01: And we had always understood, I believe the board understood, they were arguing you had to narrow the field of view. [00:17:09] Speaker 01: You couldn't just use a whole field of view, you had to narrow it. [00:17:13] Speaker 01: And that's what their first expert said in their preliminary opposition to the petition was, talked about narrowing, you can't use the fuzzy edges of a field of view. [00:17:21] Speaker 01: But then they went with this definition. [00:17:23] Speaker 01: So we all thought they were going to narrow it. [00:17:26] Speaker 01: But then Judge Lee, in the hearing, asked a very pointed question. [00:17:30] Speaker 01: He said, as I look at this language, the actual language you propose here, I don't see it expressly precluding the entire field of view from being used. [00:17:38] Speaker 01: You just say, region of interest, why can't the whole field of view be the region of interest? [00:17:43] Speaker 01: And honestly, to our surprise, Living's Council agreed with that and said, yes. [00:17:48] Speaker 01: this claim construction does potentially cover using the entire field of view. [00:17:53] Speaker 01: But what distinguishes the prior art is that we believe the claim requires a user interaction with a screen. [00:18:00] Speaker 01: So defining this configurable region has to be done by a user interacting with a screen, and that would distinguish the prior art, which doesn't talk about user interaction with a screen. [00:18:11] Speaker 01: And the way the board handled that was to say, what you're arguing now is a modified claim construction. [00:18:16] Speaker 01: The construction you offer says nothing about user interaction with a screen. [00:18:20] Speaker 01: It just says a user configurable region. [00:18:23] Speaker 01: It doesn't say how that configuration is done. [00:18:25] Speaker 01: And you're now narrowing your claim construction to add an additional requirement that was not in the briefing. [00:18:31] Speaker 01: And under the board's rules, you can't do that at the oral hearing. [00:18:34] Speaker 01: You have to stick with your original claim construction. [00:18:36] Speaker 01: You can't modify the claim construction. [00:18:38] Speaker 01: And so then the board, so here's what that left us. [00:18:41] Speaker 01: The board said, okay, here's your plan of construction. [00:18:44] Speaker 01: You're admitting that it can cover the camera's entire field of view. [00:18:47] Speaker 01: The prior art discloses a camera being set up to cover an entire field of view. [00:18:53] Speaker 01: Therefore, you have not distinguished the prior art with the construction that you offer. [00:18:58] Speaker 01: And Vivint on its appeal has not challenged the board's factual findings about the prior art. [00:19:03] Speaker 01: They've only challenged the construction of predefined area. [00:19:06] Speaker 01: So even if you agree with them about this construction, to rehearse you'd still have to find that the board abused its discretion by refusing to allow this configured on a screen addendum to the claim construction in. [00:19:19] Speaker 01: And they can't get there. [00:19:20] Speaker 01: I mean the case file is pretty clear that when you change your claim construction at the hearing, that's disallowed. [00:19:25] Speaker 01: The case they cite for saying this was an abuse of discretion is the Chamberlain case, but that was readily distinguishable. [00:19:32] Speaker 01: In the Chamberlain case, they did not change the claim construction in the oral hearing before the board. [00:19:38] Speaker 01: They pointed to additional different claim language. [00:19:41] Speaker 01: So what happened in that case, the Chamberlain case was one of these cases for a control panel or control system for a garage door. [00:19:50] Speaker 01: And when you set up your garage door command control panel, you've got to go through a learning mode where you teach it basically how far to open and close and fine tune. [00:19:58] Speaker 01: I've had cases on garage door openers. [00:20:00] Speaker 01: I know this technology well. [00:20:02] Speaker 01: So the patent in question talked about [00:20:05] Speaker 01: a step of an identifying step where you identify activities as part of this learning thing. [00:20:12] Speaker 01: The client construction dispute in Chamberlain was whether you had to identify multiple activities or just one. [00:20:20] Speaker 01: And the petitioner took the view that you have to identify multiple activities. [00:20:28] Speaker 01: So then, in the final briefing, the other side argued, okay, even if you have to identify multiple activities, in the prior art, I see multiple activities here. [00:20:38] Speaker 01: So then we go to the hearing. [00:20:39] Speaker 01: And what happened at the hearing is they said, okay, the multiple activities you have identified in the prior art happen at the wrong time. [00:20:46] Speaker 01: Because there's an additional plain language that says you have to, in response to a signal, [00:20:53] Speaker 01: The additional plan language said that there was another step that said transmitting guidance responsive to the identifying step. [00:21:03] Speaker 01: And in the prior art, those identifications they pointed to happened before that transmission of the signal. [00:21:09] Speaker 01: So the end result was their plan construction of multiple was correct, and the prior art did not disclose that because those identifications were at the wrong time. [00:21:20] Speaker 01: So what happened there was not a change in claim construction at all. [00:21:23] Speaker 01: The original claim construction was multiple. [00:21:26] Speaker 01: They pointed to, in the hearing, additional language in the claim that disallowed or basically disproved the read on the prior art that the side was trying to do in their final brief. [00:21:36] Speaker 01: So again, there was nothing in there about changing a claim construction position before the board. [00:21:41] Speaker 01: We cited the Dreeson case, which is one where this court affirmed the board saying point blank, hey, you can't change your [00:21:47] Speaker 01: claim construction of the oral hearing. [00:21:49] Speaker 01: And that when they tried to argue that, well, this claim is really directed to non-fungible tokens. [00:21:53] Speaker 01: And that wasn't in the briefing. [00:21:54] Speaker 01: The board said you can't change that. [00:21:56] Speaker 01: This court affirmed. [00:21:57] Speaker 01: So even if you were to decide that predefined area imports all this additional functionality, you still have to find an abuse of discretion by the board in refusing to include the user interaction with a screen in the claim construction, which was not in their language or in their briefing. [00:22:14] Speaker 01: So unless the court has any other questions, I'll stop there. [00:22:18] Speaker 03: Council, as you know, you have predefined time period, but there's no requirement that you use it all up. [00:22:27] Speaker 03: Thank you very much. [00:22:28] Speaker 03: Thank you. [00:22:29] Speaker 03: Mr. Freeman. [00:22:40] Speaker 02: I'm going to address the business about our clean construction and the configure on a screen language. [00:22:48] Speaker 02: language we put together to try to capture this idea of the region of interest technology, but also the other technology that we knew about from deposing ADT's expert, this checkerboard thing. [00:23:00] Speaker 02: So rather than just say draw a box on a screen, we say user configurable. [00:23:05] Speaker 02: So it's a little bit like a Rorschach test, it seems to me. [00:23:08] Speaker 02: And trying to understand why Judge Lee said what he said, he came into it thinking when we said user configurable, we mean point of camera. [00:23:15] Speaker 02: Never crossed our mind that we meant that. [00:23:18] Speaker 02: But importantly, this is where a real point I want to make. [00:23:22] Speaker 02: We didn't get a chance to have that challenge and developed. [00:23:25] Speaker 02: ADT didn't cross-examine our witness. [00:23:27] Speaker 02: They didn't put up their own expert. [00:23:28] Speaker 02: Once we put in our evidence, it just sat there. [00:23:31] Speaker 02: And we had no development of a record, development or bringing that misunderstanding, that issue to light, so that we could clarify it. [00:23:40] Speaker 02: So it comes to light for the first time [00:23:43] Speaker 02: the bird when Judge Lee asked about it. [00:23:46] Speaker 02: And the idea that you can draw the box to be coextensive, sure you can draw the box to be coextensive. [00:23:52] Speaker 02: You can deactivate or activate all the squares in the matrix. [00:23:56] Speaker 02: But why would you do that? [00:23:57] Speaker 02: But the fact that you could do that doesn't mean that the prior art invalidates the claims. [00:24:04] Speaker 02: You still have to have that interaction step. [00:24:07] Speaker 00: Do you agree that [00:24:09] Speaker 00: The board's weighing and evaluation of the extrinsic evidence, including the expert testimony, is reviewed by us for substantial evidence because it's a factual issue. [00:24:21] Speaker 02: So I saw that Mr. Simon had said that the board's conclusion that it was new, if I remember right. [00:24:31] Speaker 00: He said that was a- No, I'm not talking about new. [00:24:33] Speaker 00: I'm talking about- So you are relying. [00:24:35] Speaker 00: You're saying- [00:24:37] Speaker 00: that a person of ordinary skill, seeing your claim, would know that what's being talked about is region of interest. [00:24:44] Speaker 00: And you're saying that based on expert testimony. [00:24:47] Speaker 00: But the board did not agree and didn't agree with the expert testimony, right? [00:24:53] Speaker 00: Didn't. [00:24:54] Speaker 00: And so the question is this. [00:24:56] Speaker 00: Maybe I'm missing something. [00:24:57] Speaker 00: But if I'm right about that, then my question is, isn't the board's termination on that a factual question that's reviewed for substantial evidence by this court? [00:25:06] Speaker 00: Because we've been told that law plank destruction is the ultimate question of law, given the underlying fact findings, which really are relying on the extrinsic evidence. [00:25:16] Speaker 02: I agree with that. [00:25:17] Speaker 02: Yes, I think that's a correct statement of the law. [00:25:20] Speaker 02: It's an abusive discretion standard as to whether you consider the evidence at all. [00:25:24] Speaker 02: And the board looked at it and more or less disregarded it. [00:25:30] Speaker 02: It didn't say that it was wrong. [00:25:33] Speaker 02: ADT didn't challenge the authenticity of the document. [00:25:36] Speaker 02: ADT didn't cross-examine our witness, so we didn't have any development of that. [00:25:42] Speaker 02: But the board didn't say, this is wrong, this is incorrect. [00:25:45] Speaker 02: The board just said that, in its opinion, it didn't bring in, it didn't cause a modification or any kind of, it didn't inform the specification in the way that we proposed. [00:25:57] Speaker 02: That was the board's conclusion. [00:26:00] Speaker 02: I don't know if that's a fact-finding, [00:26:01] Speaker 02: I mean, to me, the fact finding would be if the board said, yeah, I don't believe this. [00:26:06] Speaker 02: This is wrong. [00:26:07] Speaker 02: I think this is wrong. [00:26:08] Speaker 02: And I don't think the board said that. [00:26:19] Speaker 02: Regarding the language being boilerplate, we went through this, the obscuring language that is, it is clearly tied to defining an invention. [00:26:31] Speaker 02: I'm sorry, clearly tied to the predefined area and ascertaining it. [00:26:38] Speaker 02: The whole section, when you read it, it says a computing device that has a processor and a memory. [00:26:44] Speaker 02: The memory has instructions. [00:26:45] Speaker 02: The instructions execute code. [00:26:47] Speaker 02: to help detect an entity entering into the perimeter of a predefined area. [00:26:51] Speaker 02: That's all part and parcel of obscuring. [00:26:53] Speaker 02: So the obscuring language is there. [00:26:55] Speaker 02: It does something. [00:26:56] Speaker 02: And that's what helps us understand that this region of interest technology was in play here. [00:27:02] Speaker 02: That's what led us to the conclusion that we had. [00:27:04] Speaker 02: And we would have loved to develop that record, but ADT didn't engage. [00:27:06] Speaker 02: And they've got the proof here as the petitioner. [00:27:09] Speaker 02: And they came with money to pay the filing fee, but no evidence. [00:27:16] Speaker 03: Thank you, counsel. [00:27:17] Speaker 03: As you see, you have reached the predefined limit. [00:27:22] Speaker 03: I'd like to thank both counsels. [00:27:24] Speaker 03: The case is submitted.