[00:00:03] Speaker 04:
versus Apple, 2024, 1278, and 1354.

[00:00:07] Speaker 04:
Mr. Summerfield.

[00:00:10] Speaker 04:
Thank you, Your Honor.

[00:00:13] Speaker 01:
May it please the Court, George Summerfield, on behalf of Appellant CPC.

[00:00:18] Speaker 01:
The limitations of the challenge claims require a controller configured to receive a series of entries of a biometric signal, said series being characterized according to at least one of the number of said entries and the duration of said entry.

[00:00:35] Speaker 01:
On Appendix 96, the board construed the number and duration clauses to require a number and duration of biometric signals because the input for these biometric signals is a biometric sensor as disclosed in the patent specifications.

[00:00:50] Speaker 04:
Council, you have a claim with two references in the same field of

[00:00:57] Speaker 04:
of what's claimed, and each one provides a disclosure of the components of the claim, a biometric signal, and tells us the varying duration.

[00:01:11] Speaker 04:
Why isn't it reasonable for the board to have found that they're obvious?

[00:01:22] Speaker 01:
Because neither reference discloses the use of a biometric signal when it comes to

[00:01:27] Speaker 01:
the particular input that the board relied upon for satisfying the claim limitations.

[00:01:32] Speaker 02:
But the claim only requires that needs for receiving a series of entries of the biometric signal.

[00:01:39] Speaker 02:
And I'm not clear why the prior art doesn't disclose that.

[00:01:42] Speaker 01:
Well, let's take Mathiason in the first instance.

[00:01:44] Speaker 01:
In Mathiason, we have a device equipped with, on the one hand, a fingerprint sensor.

[00:01:51] Speaker 01:
And on the other hand, what it refers to is an additional safety feature that could be

[00:01:55] Speaker 01:
there as well.

[00:01:56] Speaker 01:
It's not mandatory, according to Mathiasen.

[00:01:59] Speaker 01:
And that safety feature includes movement analyzing means and translation means, comprising hardware software modules for analyzing finger movements, not fingerprint movements, the way Apple continually characterized Mathiasen's teachings.

[00:02:14] Speaker 02:
But the two are intertwined.

[00:02:17] Speaker 02:
Your Honor?

[00:02:17] Speaker 02:
Myosin detects finger movements by detecting a series of fingerprint representations that have been captured by the fingerprint sensor.

[00:02:29] Speaker 02:
There's an intertwine between those two.

[00:02:31] Speaker 01:
Well, the question, Your Honor, is really whether the same device can operate to input biometric signals in certain instances and non-biometric signals in another.

[00:02:40] Speaker 01:
And as we'll get to on the copending 1006 IPR, the board made it very clear

[00:02:45] Speaker 01:
that in the prior art in that case, the same device acted like a fingerprint sensor in certain instances, but not in others.

[00:02:54] Speaker 01:
And that's why the board found the same claims in light of what we believe to be the same type of prior art, not to be obvious.

[00:03:04] Speaker 03:
I noticed that you're not challenging the motivation to combine here.

[00:03:10] Speaker 03:
No, Your Honor.

[00:03:10] Speaker 03:
So that means that I should be looking at the proposed combination and determining whether that satisfies the claim element, right?

[00:03:18] Speaker 01:
That's right, Your Honor.

[00:03:20] Speaker 01:
So when we look at methicin, we have their expert, Apple's expert, testifying in deposition that when we're talking about the finger movements in methicin, the focus is on the movements themselves and not the fingerprint template.

[00:03:35] Speaker 01:
That's at appendix 3097, beginning at line 21.

[00:03:38] Speaker 01:
So even there, experts says, when we're talking about the movements, we're not focusing upon the biometrics.

[00:03:45] Speaker 01:
And when we look at what the board found with regard to methicin, it never actually said that the finger movements are biometric signals.

[00:03:53] Speaker 01:
At most what the board said on appendix 120 is there can be no reasonable dispute that methicin discloses a computer-implemented software translation program

[00:04:02] Speaker 01:
for converting finger movements into control signals.

[00:04:06] Speaker 01:
That's not the same as saying these are biometric signals.

[00:04:09] Speaker 01:
And despite Apple's continual mischaracterization of the teachings as being fingerprint movements, that's not what Mathiasen says.

[00:04:19] Speaker 01:
But in any event, talking about the combination, Judge Soule, Apple acknowledges in Appendix 115 that Mathiasen does not teach determining a duration of each entry, which is required by the claims.

[00:04:31] Speaker 01:
So when we look at the mapping on appendix 121, Apple's mapping of the Matthias and Anderson combination relies exclusively on Anderson for the duration component of the biometric signal series.

[00:04:44] Speaker 01:
So let's look at Anderson.

[00:04:47] Speaker 01:
Appendix 1323, column five, starting at line 43.

[00:04:51] Speaker 01:
Anderson teaches the method of the present invention utilizes the digitizer pad 120 as a touch interface.

[00:04:59] Speaker 01:
to provide a means for inputting an access code or password via temporal variations in the amount of pressure applied to the surface of the pad 120 by the user.

[00:05:11] Speaker 01:
Separately, in column seven, beginning at line five, Anderson teaches that the digitizer pad 120 may include an optical scanner or thermal sensor for collecting an image of the user's fingerprint.

[00:05:22] Speaker 01:
as the pressure access code is entered and verified against the stored fingerprint template.

[00:05:28] Speaker 01:
So this device does two things.

[00:05:30] Speaker 01:
It senses this touch-no-touch series and if it's included, because Anderson doesn't mandate the inclusion of a fingerprint sensor, it can also collect fingerprints.

[00:05:43] Speaker 03:
But the touch-no-touch sequence by itself is... It's the same sensor that's being used?

[00:05:48] Speaker 01:
It is, Your Honor, but you have to have this extra equipment.

[00:05:51] Speaker 01:
You have to have a thermal sensor in addition to the touch-no-touch pressure sensor in order to collect the fingerprint.

[00:05:58] Speaker 01:
And again, when we get to the 1006 IPR, that was precisely what was going on in the prior art there.

[00:06:05] Speaker 01:
You had the same device that was able to sense non-biometric information

[00:06:12] Speaker 01:
and in a different mode, collect fingerprints.

[00:06:15] Speaker 01:
And we know that in Anderson, this device can operate without collecting fingerprints because it says that the fingerprint sensor is optional.

[00:06:27] Speaker 01:
So we know that the touch-no-touch sequence is by itself non-biometric.

[00:06:34] Speaker 01:
And if you additionally collect fingerprints, that doesn't affect the non-biometric nature of the touch-no-touch sequence.

[00:06:41] Speaker 01:
And because they have to combine Anderson, this non-biometric series of touch and no touch movements, to get the durational component of the claims, they have to import this non-biometric component, which means the duration part applies to a non-biometric signal series rather than a biometric one.

[00:07:02] Speaker 01:
So yes, Judge, these two references are combined.

[00:07:06] Speaker 01:
But what you end up with at the end of the day is a non-biometric signal series, not a biometric one.

[00:07:14] Speaker 03:
Matheson, I think I'm saying that right, that talks about, it's paragraph 192, talks about movement analyzing means in the form of hardware or software movement analyzing program analyzes the obtained series of fingerprint representations to obtain a measure of the omnidirectional finger movements across the sensor in two dimensions.

[00:07:36] Speaker 03:
That sounds as if it's both looking at the fingerprint and looking at the series.

[00:07:42] Speaker 01:
It was looking at the movements, Your Honor.

[00:07:45] Speaker 01:
That's the point.

[00:07:46] Speaker 01:
The fact is that while it's collecting fingerprints, it may also analyze finger movements.

[00:07:51] Speaker 01:
But the point is that finger movements can be learned by anybody.

[00:07:54] Speaker 01:
If this here means duress, anyone can enter that.

[00:08:01] Speaker 01:
It can be learned.

[00:08:02] Speaker 01:
It is an indicative of the biometrics of the user.

[00:08:05] Speaker 03:
But if then that is replaced, that movement is replaced with a dot-dot-dit, instead is taught by a secondary reference?

[00:08:13] Speaker 01:
That clearly isn't biometric because the dot-dot-dit from Anderson is non-biometric, clearly.

[00:08:20] Speaker 01:
So if you swap out whatever Mathiason's teaching about how you enter signals with Anderson in any way, shape, or form, what you end up with is something that is non-biometric.

[00:08:30] Speaker 01:
And since they need Anderson,

[00:08:32] Speaker 01:
necessarily that combination doesn't render obvious the claims of the patents.

[00:08:40] Speaker 01:
And to the extent there's any question about what that series is in Anderson, on page 14 of the blue brief, CPC replicates the recognition of both parties' experts that Anderson's pressure and duration patterns are knowledge-based.

[00:08:53] Speaker 01:
In other words, they are not biometric signals.

[00:08:57] Speaker 01:
So again, modifying Matthiessen with Anderson's touch-no-touch pattern does not result in a claimed duration characterizing a series of entries of a biometric signal, no matter what Matthiessen teaches at the end of the day.

[00:09:10] Speaker 01:
As the PTAB stated on Appendix 40, if the number and duration of presses did not include a biometric component, which is the case in Anderson, it would simply be a knowledge-based security measure based on a pattern rather than based on a unique physical attribute of the user, which you need to have a biometric signal.

[00:09:28] Speaker 01:
Now, the distinction between biometric and knowledge-based input is clearly illustrated in the co-pending 1006 IPR.

[00:09:37] Speaker 01:
And we provided the remand decision at DOC at 35.

[00:09:41] Speaker 01:
On page 98 of that decision, the board found that there is a substantive distinction

[00:09:45] Speaker 01:
between the finger press command entry function and the fingerprint user authentication function in Mathias in 067.

[00:09:53] Speaker 01:
Both functions use the same touch sensitive switch one in the form of a fingerprint sensor with navigation means.

[00:10:00] Speaker 01:
So Judge Stoll, to your point, there in a reference where the same device was doing two things, the board found that

[00:10:07] Speaker 01:
Because it was doing a non-biometric signal entry in what the challenger was relying upon in the 1006 proceeding was, there was no obviousness there.

[00:10:21] Speaker 01:
The same reasoning applies here.

[00:10:25] Speaker 04:
Are these patents expired?

[00:10:29] Speaker 01:
No, Your Honor, they're not expiring.

[00:10:35] Speaker 01:
So on page 99, the board concluded in the 1006 proceeding, essentially switch one, a fingerprint sensor does not in fact act as a fingerprint sensor when switched to the cursor command motion.

[00:10:46] Speaker 04:
Don't they go back to 2004?

[00:10:52] Speaker 01:
I think there was a patent term extension, Your Honor.

[00:10:56] Speaker 01:
But I can find out if that matters.

[00:10:58] Speaker 04:
Well, I'm looking at 705 and it says zero days.

[00:11:02] Speaker 04:
Go ahead.

[00:11:03] Speaker 04:
Go ahead.

[00:11:04] Speaker 01:
All right.

[00:11:05] Speaker 01:
Thank you, Hunter.

[00:11:09] Speaker 01:
So just as in the copending 1006 IPR, Anderson's digitizer pad, even equipped with an optical scanner or thermal sensor, does not act as a fingerprint sensor when it is sensing the temporal variations in the amount of pressure applied to its surface.

[00:11:26] Speaker 01:
There was no reasonable way for the board to have found that Anderson teaches a series of a biometric signal, while at the same time finding that Mathias in 067 does not teach that limitation, as both teach a knowledge-based pattern of finger presses, albeit collected via device that can also serve to collect fingerprints.

[00:11:46] Speaker 01:
At Docket 37, Apple's response to this facial inconsistency is to quote the board that the Apple IPR involved a different petitioner, different evidence, and different arguments.

[00:11:55] Speaker 01:
That is all true because there were different parties involved and there was a different reference.

[00:12:00] Speaker 01:
However, those differences don't explain the difference in logic the board used in looking at Anderson and Mathias in 067 and that other proceeding.

[00:12:12] Speaker 01:
There's no explanation as to why in one case something that serves as a fingerprint sensor sometimes and a non-biometric signal sensor other times renders obvious acclaim in one case but not in the other.

[00:12:27] Speaker 01:
that read brief pages 26 to 27, while Apple attempts to distinguish the two Matthiessen references, Apple is entirely silent on the similarities between Matthiessen 067 in that parallel case and the Anderson reference, in this case, the reference they rely upon to supply the duration of the biometric signal series limitation.

[00:12:50] Speaker 01:
They just don't address it.

[00:12:51] Speaker 01:
And they can't, because in both instances, it's the same thing.

[00:12:57] Speaker 01:
Whatever differences there may have been between that proceeding and this, it doesn't explain away the facial inconsistency.

[00:13:03] Speaker 01:
It's our submission that because they need to rely on a non-biometric signal to get to the claims, the claims aren't rendered obvious because they do require a number and a duration of a biometric signal series.

[00:13:15] Speaker 01:
If there are other questions, I'll reserve them.

[00:13:17] Speaker 04:
We will save you time, and let me just point out that the 208 patent was extended for 78 days, but that doesn't bring it beyond open.

[00:13:27] Speaker 01:
Sorry, Your Honor.

[00:13:28] Speaker 01:
I stand corrected.

[00:13:31] Speaker 04:
Mr. Lloyd.

[00:13:41] Speaker 00:
May it please the court.

[00:13:43] Speaker 00:
I think, given the discussion this morning, I'll just jump straight to paragraph 192 of Mathiasen, because I think that largely disposes of the issues that have been discussed.

[00:13:52] Speaker 00:
And the board reproduced the entire paragraph at appendix 59 of its decision and added emphasis to the key parts.

[00:14:00] Speaker 00:
And the key parts are, there are a couple of key parts.

[00:14:02] Speaker 00:
The first is that Mathiasen has expressed that its system is configured to receive, quote, a series of fingerprint representations, plural.

[00:14:12] Speaker 00:
That is a biometric signal series, plain and simple.

[00:14:16] Speaker 00:
And CPC really has no answer for that part of it.

[00:14:19] Speaker 00:
And then I think that the second key part of this is not only does it receive a series of fingerprint representations, it's to, I think Judge Prost also commented on this, it's that Mathiasen says the way it detects finger movements and touch-no-touch finger presses is by analyzing the fingerprint representations.

[00:14:40] Speaker 00:
And so in Mathiasen,

[00:14:41] Speaker 00:
The biometric data, the fingerprint representations, is married to the detection of touch-no-touch finger presses.

[00:14:50] Speaker 00:
I think you pair that with, as the board's claim construction recognized, at appendix 36 to 37.

[00:14:58] Speaker 00:
Column 10 of the patents, which is the exemplary embodiment the board recognized of these limitations.

[00:15:04] Speaker 00:
In Column 10 of the patents, the description there is you have an administrator who wants to enroll a new user.

[00:15:10] Speaker 00:
And the way the administrator does that is by tapping out a predetermined pattern.

[00:15:15] Speaker 00:
I think dit-dit-dit-da is the example.

[00:15:18] Speaker 00:
Three short presses and one long press.

[00:15:21] Speaker 00:
And the patent actually just describes them as finger presses.

[00:15:23] Speaker 00:
It does not mention in column 10 anything about the biometric data.

[00:15:27] Speaker 00:
That tapping out of a known learned pattern on the fingerprint sensor is what triggers the system to then be able to enroll the new user.

[00:15:38] Speaker 00:
And it compares that tapped out pattern to pre-stored signals.

[00:15:42] Speaker 03:
Do I understand correctly that the proposed modification of Matheson is to modify it so that it's not finger movements detected by the sensor?

[00:16:00] Speaker 03:
But instead, it's going to have the did, did, dot as taught by the secondary reference.

[00:16:07] Speaker 03:
But it would be analyzed in Matheson by the fingerprint with a did, did, dot.

[00:16:14] Speaker 03:
Is that right?

[00:16:15] Speaker 03:
Do I have that comment?

[00:16:16] Speaker 00:
I think 95% right, Judge Soule.

[00:16:18] Speaker 00:
And the only 5% difference is that Matheson actually says both, and right there in paragraph 192, both finger movements and touch, no touch.

[00:16:27] Speaker 00:
So Matheson is already

[00:16:29] Speaker 00:
actually configured to be able to detect multiple finger touches.

[00:16:34] Speaker 00:
And what Anderson was relied on is exactly what you said, is this concept of measuring the duration of each of those touches.

[00:16:43] Speaker 00:
And that's why at the bottom of appendix 57, the board quotes Apple's petition explaining that the only modification here would be simple programming to

[00:16:52] Speaker 00:
take those touch-no-touch finger movements that are already coming in Mathias and calculate the number and duration of those, just like the patents teach.

[00:17:04] Speaker 00:
I think the only other point maybe to touch on, of course, happy to answer any questions, is this discussion of the board's decision in another IPR involving a different petitioner and different prior art references.

[00:17:17] Speaker 00:
As we put in our

[00:17:20] Speaker 00:
28J letter.

[00:17:21] Speaker 00:
The board, after a remand from the director, repeatedly distinguished the prior art and the record evidence there from here.

[00:17:30] Speaker 00:
Most importantly, the prior art sensor there, the board found, could be configured in multiple ways.

[00:17:35] Speaker 00:
In some ways, it would operate as a biometric sensor.

[00:17:37] Speaker 00:
And in other ways, it was configured not to operate as a biometric sensor.

[00:17:40] Speaker 00:
But here, the board found that methicin is always operating as a biometric sensor because it analyzes finger touch, no touch,

[00:17:49] Speaker 00:
by detecting the fingerprint representations.

[00:17:53] Speaker 00:
And so there is no difference.

[00:17:55] Speaker 00:
Unless the court has any further questions, we ask that you affirm.

[00:17:58] Speaker 04:
Thank you, counsel.

[00:18:00] Speaker 04:
Mr. Summerfield has two minutes for a vote.

[00:18:03] Speaker 01:
Thank you, Your Honor.

[00:18:07] Speaker 01:
I want to start with the dit-dit-dit-dot disclosure in the Pattinson suit.

[00:18:11] Speaker 01:
That is merely what the administrator does to allow for the enrollment of a user.

[00:18:15] Speaker 01:
It is not itself the biometric signal series.

[00:18:18] Speaker 01:
that discussion, the biometric signal series, we discuss at pages seven and eight of the blue brief, which references the steps in figures seven and eight.

[00:18:28] Speaker 01:
And there, for the enrollment process, the challenge patents explain that steps 805 and 807 and figure eight involve sequences of finger presses on the biometric sensor by the user to be enrolled.

[00:18:41] Speaker 01:
So the dit dit dit dot may be the things that open up the enrollment process by the administrator, but that's not the actual enrollment.

[00:18:48] Speaker 01:
What the patents talk about is the entry of biometric signals via the fingerprint sensor to enroll a new user.

[00:18:56] Speaker 01:
That's how they store the information in the first instance.

[00:19:01] Speaker 01:
As for methicin, it seems like Apple is now running away from what its experts said, because again, in deposition, experts said when you're talking about the finger movements in methicin,

[00:19:13] Speaker 01:
The focus was on the movements themselves and not on the fingerprint template.

[00:19:18] Speaker 01:
So when they say, well, they're using the fingerprints as sort of a surrogate for the finger movements, that's not what their expert said.

[00:19:25] Speaker 01:
The only thing that Mathiason cares about when it's measuring finger movements is which direction the finger is moving in, what the pattern is.

[00:19:35] Speaker 01:
And when you talk about modifying methicin with Anderson, there's absolutely no evidence in the record as to how one could just simply lift Anderson's teachings of durational variability, stick them in methicin, and have that work.

[00:19:49] Speaker 01:
There just isn't any evidence of that.

[00:19:52] Speaker 01:
All they talk about is just simply say, combine methicin with Anderson.

[00:19:56] Speaker 01:
Well, if they do that, what they end up with is a duration of a non-biometric signal.

[00:20:02] Speaker 01:
Thank you, honors.

[00:20:03] Speaker 04:
Thank you, Council.

[00:20:04] Speaker 04:
Close Council, in case we submit it.