[00:00:04] Speaker 03: I'm afraid you're stuck with me again. [00:00:42] Speaker 03: Thank you, Your Honor. [00:00:45] Speaker 02: May it please the Court? [00:00:47] Speaker 02: There's one point that I would like to make in this appeal today, and it has to do with the main reference that's cited by Mycroft, which is the McConnell reference. [00:01:01] Speaker 02: In this reference, the user, once again, sets up a database. [00:01:06] Speaker 02: In this database, it's a little bit more detailed because the user [00:01:10] Speaker 02: says if I say X then I want Y to happen and I want to use a specific application in order for that to happen. [00:01:19] Speaker 02: It's the user deciding it's going to be this application. [00:01:23] Speaker 02: There's no audio command interface deciding what application is going to be selected in order to execute at least one or more processes in response to the command. [00:01:37] Speaker 02: And so [00:01:40] Speaker 02: McConnell does not disclose or teach the deciding element in any of the challenge claims and therefore all of the challenge claims are patentable because if McConnell doesn't show this deciding element, then their arguments fail completely. [00:01:57] Speaker 01: This is the pre-configured instructions idea again? [00:02:00] Speaker 01: Yes, Your Honor. [00:02:01] Speaker 01: Okay. [00:02:05] Speaker 01: I remember one argument in your briefing that was challenging the construction of [00:02:10] Speaker 01: audio command in place. [00:02:13] Speaker 01: And then I saw the red brief say that, well, at least for this McConnell-based ground of unpatentability, which the board adopted, you never made an argument below or here [00:02:30] Speaker 01: that any preferred meaning of audio command interface would make a difference in terms of how to evaluate the McConnell-based ground of unpatentability. [00:02:43] Speaker 01: Is that right? [00:02:45] Speaker 02: I don't believe so, your honor. [00:02:48] Speaker 01: As I understand it, below, you said there's a particular conception of audio command interface that needs to be understood, and once you understand that, you'll know that the Valakrishnan round of unpatentability is no good. [00:03:02] Speaker 01: Right. [00:03:03] Speaker 01: But I don't see below or here in the blue brief any similar kind of argument for this McConnell-based round of unpatentability. [00:03:15] Speaker 02: I can't point to anything wrong. [00:03:16] Speaker 02: I don't remember. [00:03:18] Speaker 01: So then I guess the next question is why is there even really an issue that's necessary for us to decide when it comes to planning construction for our audio command interface under the circumstances? [00:03:32] Speaker 02: Well, I think because the argument is, by my fault, that the interface program 300 in McConnell is an audio command interface. [00:03:40] Speaker 02: And if that argument's being made, then, well, [00:03:45] Speaker 02: It's kind of a subsidiary issue, I suppose, because on the deciding issue, if there's no deciding going on in the comm, there's no point to even look, I mean, if the user is always making the decision in the comm, there's no point to really look at whether the interface program 300 is an audio command interface. [00:04:02] Speaker 02: But I don't know what the courts can rule. [00:04:04] Speaker 02: I don't know how evaluation is going to proceed. [00:04:10] Speaker 02: the court goes beyond that, then there would be a situation where the audio command interface definition or construction would need to be evaluated to see if their argument is right that the interface program 300 meets that. [00:04:22] Speaker 04: Are you saying you have essentially on the deciding term in terms of your claim construction argument? [00:04:27] Speaker 04: Is that fair to say? [00:04:29] Speaker 02: Yes, Your Honor. [00:04:30] Speaker 02: We do have some arguments on remembers. [00:04:35] Speaker 02: Remembers, yes. [00:04:37] Speaker 02: Well, remembers and I think even the location data because those are both subsidiary. [00:04:44] Speaker 02: If you make a decision, then those elements of location data and remembering are subsidiary to that decision because you're using location data or remembering to make the decision. [00:04:55] Speaker 01: But as I understood your brief, your arguments on appeal are restricted to these particular functional limitations and don't make a separate argument that if audio command interface, the term, that structural term is understood to have a very specific meaning, McConnell doesn't teach that kind of an audio command interface. [00:05:21] Speaker 02: I think that's correct, yeah. [00:05:23] Speaker ?: OK. [00:05:26] Speaker 02: There are no other questions. [00:05:27] Speaker 02: I'll reserve the rest of my time for Beto. [00:05:41] Speaker 03: Is this case live? [00:05:42] Speaker 00: Live. [00:05:43] Speaker 00: No. [00:05:44] Speaker 00: Thank you, Judge Chief. [00:05:45] Speaker 00: Thank you, Judge Lurie. [00:05:47] Speaker 00: And may it please the court. [00:05:51] Speaker 00: The board's decision should be affirmed. [00:05:53] Speaker 00: There was no error in its claim constructions of the decides and remembers limitation. [00:06:00] Speaker 00: And substantial evidence supports its findings that those limitations were disclosed in the McConnell reference. [00:06:06] Speaker 00: Likewise, substantial evidence support supports finding that the combination of McConnell and Rose, the combination that wasn't challenged below by voice tech, renders obvious the location data limitation. [00:06:20] Speaker 00: And the construction of audio command interface [00:06:23] Speaker 00: was correct, but it's also not germane to this appeal because the board's determination of unpatentability does not rest on that construction. [00:06:33] Speaker 00: And in fact, I'll point the court to page 26 of the joint appendix. [00:06:38] Speaker 00: That's the page out of the board's opinion where it notes that Wojtek did not dispute. [00:06:45] Speaker 00: McConnell discloses [00:06:48] Speaker 00: on audio command interface. [00:06:50] Speaker 00: The first paragraph on page 26 is the limitation of receiving audio data from the mobile device at the computer at an audio command interface. [00:07:01] Speaker 00: The last sentence of that paragraph is, patent owner does not dispute that McConnell discloses this limitation. [00:07:07] Speaker 00: That includes the audio command interface. [00:07:09] Speaker 00: That was a correct statement when made by the board. [00:07:12] Speaker 00: Envoy Tech has not challenged that on appeal. [00:07:15] Speaker 00: So Judge Chen, to answer your question, [00:07:17] Speaker 00: that construction would not demand this appeal because of the grounds that the board would have. [00:07:24] Speaker 00: If I could turn to the decide limitation that was discussed in the prior appeal as well, as you noted, Judge Chen, this term is not defined. [00:07:34] Speaker 00: It doesn't appear in the patent. [00:07:36] Speaker 00: It was introduced in a claim amendment in prosecution. [00:07:41] Speaker 00: I think perhaps the most important page of the record is page 1002. [00:07:47] Speaker 00: This is the response to an office action in which Voicetech identified the written description support for that limitation among others. [00:07:57] Speaker 00: And they pointed to two paragraphs, paragraph 39 and 43 of the application, and then also figures one through four. [00:08:06] Speaker 00: Well, paragraphs 39 and 43 are explaining that flowchart where a command is decoded, voice data is decoded into a command. [00:08:15] Speaker 00: And the process for deciding in that flow chart is determine whether the command is an operating system command. [00:08:24] Speaker 00: If so, execute it. [00:08:25] Speaker 00: And if not, determine whether it's a native allocation command. [00:08:29] Speaker 00: And if so, execute it. [00:08:32] Speaker 00: As the board noted, there is essentially no difference between that description of deciding in the 348 patent [00:08:43] Speaker 00: and one of the descriptions of deciding that's in the column, which is consulting a spreadsheet that maps commands to a particular operating system function or native application. [00:08:55] Speaker 00: So while there are many other types of deciding that might be encompassed within the meaning of that term, [00:09:01] Speaker 00: And while McConnell does disclose other methods of deciding, such as, for example, prompting the user to identify the proper application, the board's construction of deciding as including pre-configured instructions was certainly correct because it matches the description of the invention in the very portion of the specification that Voicetech itself identified as the written description supports. [00:09:27] Speaker 01: What column and line of the patent are those passages that they rely on? [00:09:34] Speaker 00: Paragraph 39 is column 8, line 42 through column 9, line 3. [00:09:42] Speaker 00: So it's the paragraph that bridges columns 8 and 9. [00:09:50] Speaker 00: Call it up in front of me. [00:09:52] Speaker 01: OK, I see that. [00:09:53] Speaker 00: And paragraph 43 is the last paragraph in column 9. [00:09:58] Speaker 00: It begins at line 49 and extends to the end of that column. [00:10:08] Speaker 00: Those two paragraphs are describing figure 4, which appears on page 69 of the appendix. [00:10:18] Speaker 00: So to be a little more explicit, [00:10:21] Speaker 00: Judge Chen, in paragraph 39, the one that begins on column 8 and runs into column 9, it says, at step 412, it is determined whether the command is an operating system command. [00:10:36] Speaker 00: If it is determined that an operating system command has been received, the method then proceeds to 414, where the operating system command is executed. [00:10:46] Speaker 00: The following sentences give more description of how that determination is made. [00:10:51] Speaker 00: and the board at page 27 relied on one of those in that it is described as using, among other things, a spreadsheet to find and view slash play a whole set of different things including, for example, a video recording. [00:11:10] Speaker 00: So the board made a fact finding that [00:11:13] Speaker 00: In that paragraph, it's describing the use of a spreadsheet essentially as the command file that identifies for each command where it should be executed. [00:11:26] Speaker 04: Do you have a discussion that was had in the prior appeal between Judge Chen and the council regarding kind of the forfeiture waiver argument? [00:11:33] Speaker 04: Are you maybe just arguing on the merits of this one? [00:11:36] Speaker 00: I'm very happy to contend on the merits of this one. [00:11:40] Speaker 00: In our appeal, I think this may be true in the others as well. [00:11:44] Speaker 00: We are only arguing waiver for this audio command interface construction, which in any event is not germane and was correct. [00:11:52] Speaker 00: A note about the Polycom case, Judge Chen, [00:11:55] Speaker 00: I think you may be right that there's a distinction to draw between arguments that parties simply disagree with the determination of the board versus points or arguments that the board overlooked and essentially would have wanted to know about. [00:12:11] Speaker 00: In rendering its final decision, you could draw a distinction there. [00:12:15] Speaker 00: And in any event, this, of course, only applies if a party makes the strategic choice to file a petition for re-hearing at the board rather than appealing directly to this court. [00:12:26] Speaker 00: But all waiver is discretionary, essentially, at this court. [00:12:30] Speaker 00: This court can review an issue. [00:12:31] Speaker 00: Even if it is waived, we don't think the court needs to review audio command interface because it simply didn't undergird any of the board's determinations of unpatent ability. [00:12:42] Speaker 01: That's the only issue you argued this way. [00:12:45] Speaker 00: I believe that's correct. [00:12:47] Speaker 00: As you're saying that, I'm beginning to doubt myself. [00:12:51] Speaker 00: But if I am incorrect, I don't believe we need to rest on waivers for any of our ideas. [00:12:57] Speaker 00: If the court has no further questions, I'll see if the balance is met. [00:13:02] Speaker 03: Thank you, Mr. Adams. [00:13:04] Speaker 03: Mr. Adams, take some more time with your music. [00:13:09] Speaker 02: Thank you, Your Honor. [00:13:14] Speaker 02: I would like to point out that in our briefing to this court, we did contest that the combination of McConnell and Reid or Rose, however you want to say it, did not disclose the location data limitation or did not disclose or teach the location data limitation. [00:13:37] Speaker 02: I did want to talk a little bit about the construction of the side as well. [00:13:43] Speaker 04: How do you contend Rose doesn't disclose that particular limitation since you brought that up? [00:13:47] Speaker 01: I'm sorry. [00:13:48] Speaker 04: You were just talking about the location data limitation. [00:13:50] Speaker 04: How do you contend that Rose or how do you pronounce that reference doesn't disclose that? [00:13:56] Speaker 02: Well, Rose talks about location data. [00:13:58] Speaker 02: But in Rose, you've got two situations where the location data is being considered. [00:14:02] Speaker 02: One is at the very end of the process in Rose where the data has already been generated. [00:14:07] Speaker 02: And so if the data has already been generated, then that location data is not being used to decide what application is going to be selected to generate the data. [00:14:17] Speaker 02: Because the location data is not being considered till the very end. [00:14:21] Speaker 02: There's a second situation in ROSE talking about location data as a means to access the system as a whole, kind of like a password. [00:14:31] Speaker 02: So if the user is trying to access the system, then the system can look at the [00:14:36] Speaker 02: location to see if this is perhaps a safe location, a confidential location that would allow access to the system. [00:14:45] Speaker 02: But that is at the very beginning of just accessing the system. [00:14:50] Speaker 02: The system hasn't received any kind of command. [00:14:53] Speaker 02: So there's no disclosure or teaching that you would use location data as part of making a decision to select an application because Rose is just talking about after the data has been generated or [00:15:06] Speaker 02: accessing the system at the very beginning. [00:15:11] Speaker 02: Looking at the construction of the sides and looking at paragraphs 39 and 43 in the application which had corresponding, obviously corresponding sections in the issue patent, it is focused, those two paragraphs are focused on figure four and a point or step 412 where there's a determination or [00:15:38] Speaker 02: is the user requesting that, basically it's the audio command interface trying to determine okay is the user wanting or giving me an operating system command or native application command. [00:15:50] Speaker 02: And in paragraph 39 it goes on to explain this is what happens if there is a operating system command and gives several different embodiments. [00:16:03] Speaker 02: These are all embodiments where [00:16:06] Speaker 02: Kind of like what we were talking about before in the other field where how the audio command interface is reaching these decisions. [00:16:16] Speaker 02: How is it selecting the application and it's giving different embodiments where, for example, in the first one where it says, in this exemplary embodiment, an operating system command can be used to generate audio and video output data, such as a command to play a movie file using a video player of the operating system or other suitable processes. [00:16:36] Speaker 02: The word suitable, obviously, is similar to appropriate. [00:16:42] Speaker 02: It indicates that the audio command interface is making this decision, and it's giving examples of how that can take place. [00:16:53] Speaker 02: And there are several other embodiments in there, but I don't see anywhere in here where it's talking about matching. [00:17:03] Speaker 02: It does say you can list [00:17:05] Speaker 02: There can be a command to list out the available operating system commands, but that's not necessarily matching. [00:17:12] Speaker 02: It's just the audio command interface reacting responding to the command to list out all of the commands. [00:17:26] Speaker 01: The patent talks about matching a cone for lines 20 to 21. [00:17:42] Speaker 01: Yes, your honor. [00:17:45] Speaker 01: Audio PR interface 108 can include a file with available operating system commands that can be matched with voice data. [00:17:52] Speaker 02: Yes, your honor. [00:17:53] Speaker 02: There are discussions in this pattern about matching as a possible embodiment, but not in the claims at issue. [00:18:02] Speaker 02: And the claims at issue is all talking about the size. [00:18:05] Speaker 02: And if the applicant had wanted to use the word matching, he easily could have because it's in the specification. [00:18:12] Speaker 02: he chose to use the word decide and he chose to rely on these paragraphs 39 and 43 instead of simply just saying to the examiner I'm using the word matching and it's throughout the specification so there's plenty of support. [00:18:28] Speaker 02: So there was a reason behind this and I'd also like to point out that this was a 10 year long prosecution of this patent. [00:18:37] Speaker 02: It wasn't just glanced over [00:18:39] Speaker 02: There was a lot of appeals, a lot of rejections, a lot of claim amendments. [00:18:44] Speaker 02: And I'll just leave it at that unless there are any other questions. [00:18:53] Speaker 03: It wasn't obviously patentable. [00:18:56] Speaker 02: It wasn't obviously patentable. [00:18:58] Speaker 02: It took a long time for them to get this through. [00:19:05] Speaker 03: Thank you both. [00:19:07] Speaker 02: Thank you.