[00:00:00] Speaker 02:
The next case for argument this morning is 24-1365, CPC technologies versus Apple.

[00:00:08] Speaker 02:
Ms.

[00:00:09] Speaker 02:
Holcomb, is that her transit?

[00:00:10] Speaker 02:
Good morning.

[00:00:11] Speaker 02:
Please go to your seat.

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

[00:00:15] Speaker 00:
Melissa Holcomb on behalf of CPC.

[00:00:17] Speaker 00:
May it please the court?

[00:00:20] Speaker 01:
On page 25 of Apple's response brief, Apple asserts that you're arguing that

[00:00:26] Speaker 01:
Quote, FOSS does not teach using card data to find a memory location or determining if a memory location is unoccupied because FOSS defines a memory location based on an existing occupied account not receiving card information.

[00:00:44] Speaker 01:
But Apple argues that you forfeited that challenge because at the PTAB you made different arguments about FOSS.

[00:00:53] Speaker 01:
We're in the record.

[00:00:55] Speaker 01:
Did you initially make that argument regarding FOSS that you're now making?

[00:01:01] Speaker 00:
Well, in looking at the board's conclusions, they do combine.

[00:01:08] Speaker 01:
That's not what I'm asking.

[00:01:16] Speaker 00:
So in our blue brief, we explain that

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either FOSS or Bradford utilizes existing, pre-existing user accounts.

[00:01:29] Speaker 00:
And so either one of those scenarios are the same, and that... You're still not answering my question, though, are you?

[00:01:39] Speaker 01:
Where in the record did you make that argument?

[00:01:45] Speaker 00:
I believe we made that argument, and I will

[00:01:49] Speaker 01:
Okay, you can do it when you get back up.

[00:01:51] Speaker 00:
Yes, yes.

[00:01:52] Speaker 00:
If I may, I will definitely have an answer for you on that.

[00:01:58] Speaker 00:
I think that the two main

[00:02:03] Speaker 00:
findings of the board are the order of the claimed steps which in their claim construction seems very straightforward and it follows the plain language of the claims and that is mainly receiving the card information first using that card information to define a memory location where the biometric signature will be stored

[00:02:29] Speaker 00:
and then storing that biometric signature at that location.

[00:02:34] Speaker 02:
So I guess I'm a little unclear.

[00:02:36] Speaker 02:
I understood your argument in the brief.

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You were complaining that the board adopted a four-step order.

[00:02:45] Speaker 02:
And I can't find who the board adopted.

[00:02:50] Speaker 02:
a four-step order.

[00:02:51] Speaker 02:
The board found that the card data must be received and used to define a memory location before the biometric data is stored in that location.

[00:03:01] Speaker 02:
But where's the fourth step?

[00:03:03] Speaker 00:
So the fourth step that they're referring to, and Apple refers to that in their red brief, I believe one of the last pages, maybe, I think 21.

[00:03:13] Speaker 00:
The fourth step is, it's actually step two, it's receiving the biometric signature.

[00:03:20] Speaker 00:
So if we look at the language of the claims themselves, the first step identified as step A is receiving card information.

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The second is receiving the biometric signature, which is the fingerprint.

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And then C, which is arguably the most critical step, is the defining dependent upon the received card information, the memory location where that signature

[00:03:49] Speaker 00:
that had been received will be stored in the local memory.

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And then the following step, making sure that defined memory location is unoccupied and then storing the fingerprint there.

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And so this fourth step, which is receiving the biometric signature, it doesn't necessarily have to go

[00:04:15] Speaker 00:
in this particular order, although the claim certainly puts it after receiving the card information.

[00:04:21] Speaker 00:
We just need to have the fingerprint so that once the memory location is defined, you can store it there.

[00:04:29] Speaker 00:
And so in the board's claim construction, which I'd like to point out on appendix page 36 of their decision,

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They not only define the term defining, construe the term defining by using the terms.

[00:04:49] Speaker 02:
You haven't challenged them.

[00:04:50] Speaker 00:
We are not challenging.

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And we believe that they were absolutely correct in their construction, in particular the interpretation.

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And so on appendix page 36 in that middle paragraph, you can see that there are two sentences.

[00:05:08] Speaker 00:
The first one starts with overall.

[00:05:11] Speaker 00:
If we just jump down to the second part of that sentence where it starts the enrollment process, the claimed biometric signature, e.g.

[00:05:20] Speaker 00:
the fingerprint

[00:05:21] Speaker 00:
It's not yet stored in the memory and this is the critical part that I think the board made a point to include and no memory location or address has been defined as in set or established in the memory for storing the fingerprint until the card information is received.

[00:05:42] Speaker 00:
Then once that card information is received and the fingerprints been received

[00:05:47] Speaker 00:
during enrollment, the card information provides the data that establishes where, i.e.

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at what memory address that system will store the fingerprint.

[00:05:57] Speaker 00:
And there's a reason they included that statement that until the card information is received, there is no memory location that's been set or established on where that biometric signature is going to be stored in this local memory.

[00:06:15] Speaker 01:
On the prior page,

[00:06:17] Speaker 01:
The two tabs notes that, I'm quoting, patent owners counsel stated during oral argument with respect to defining that, quote, the only logical use of that term is that defining means to identify a memory location into which the biometric data is going to be stored.

[00:06:38] Speaker 01:
And Apple argues that you never addressed that.

[00:06:45] Speaker 01:
concession Where do you address that well?

[00:06:50] Speaker 00:
from the beginning a CPC has proposed the same construction and that can be found in our patent owner response on appendix page 253 and at that time we their patent owner noted that even though

[00:07:10] Speaker 00:
the court had construed the dependent upon term, that the way Apple was interpreting this defining limitation was different.

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And so at that point, CPC proposed two potential terms for defining to set or establish.

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But more importantly, it was taking into context the order of the claims, the fact that that particular element used the word defining

[00:07:45] Speaker 00:
the memory location and then after in the subsequent steps said the defined memory location, past tense, and the same occurred in dependent claim two during verification.

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And so we made it clear that although Apple had been suggesting the use of the term identify or find

[00:08:07] Speaker 00:
their interpretation was that the memory location, even before the card information was received, it could have been predetermined or already defined prior to that card.

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And so there was some discussion at the hearing of alternative verbs for defining.

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And in reading the context of those discussions, it was

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They were all in response to either other verbs that Apple had proposed or suggested that we were proposing.

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and some words that were even brought up by the judge.

[00:08:49] Speaker 00:
I believe it was Judge Laney who noted that the Marion and Webster dictionary had the term create for the word defining.

[00:09:02] Speaker 00:
So there was discussion of alternative verbs.

[00:09:05] Speaker 00:
But CPC has always been clear

[00:09:08] Speaker 00:
Whatever verb is used for defining the most important aspect is that at that moment after the card information is received, that's when the memory location for the biometric signature that will be received is defined.

[00:09:26] Speaker 00:
It's set at that point.

[00:09:27] Speaker 00:
Whether you use the term set, establish,

[00:09:33] Speaker 00:
identify, create, although it did result in some confusion because there was a discussion about physically creating memory.

[00:09:46] Speaker 00:
Does it exist?

[00:09:47] Speaker 00:
Are you adding gigabytes at that point?

[00:09:50] Speaker 00:
seemed to be a little bit ridiculous as a discussion.

[00:09:55] Speaker 00:
So yes, there were discussions, and counsel did use alternative verbs.

[00:10:01] Speaker 04:
What is it about these two references, Bradford and Foss, that explain to us that it has, in fact, defined the biometric data memory location when

[00:10:19] Speaker 04:
player data record gets created.

[00:10:22] Speaker 00:
So Bradford, we can look at this.

[00:10:25] Speaker 00:
It's very explicit when that occurs.

[00:10:28] Speaker 00:
And it's on appendix page 1024, starting on column three at line 28 through 36.

[00:10:39] Speaker 00:
There's also another citation on 3030, column 15, line 60 through 63.

[00:10:47] Speaker 04:
Can you just read out loud something that tells me that when the player data record gets created, there's a spot right there for the subsequently received fingerprint data.

[00:11:04] Speaker 00:
A player identification database.

[00:11:07] Speaker 04:
I'm sorry, where are you?

[00:11:08] Speaker 00:
I'm right on column three.

[00:11:10] Speaker 00:
This is appendix page 1024.

[00:11:13] Speaker 00:
Column three starting at line 28.

[00:11:15] Speaker 00:
A player identification database is also used where an entry corresponding to a player comprises at least one record, typically exactly one record.

[00:11:29] Speaker 00:
That record has fields containing data, information, or pointers.

[00:11:33] Speaker 00:
The records have fields corresponding to a first authenticator and a second authenticator, providing authenticator data or pointers to authenticator data.

[00:11:45] Speaker 00:
This is the most important point.

[00:11:48] Speaker 00:
The second authenticator will always have data that corresponds to a biometric measurement.

[00:11:54] Speaker 00:
And so when that player goes to the customer service counter and to say, I need an account, and that attendant goes in and says, let me get a player ID account.

[00:12:10] Speaker 00:
And I'm going to start putting it.

[00:12:11] Speaker 00:
This is going to be you.

[00:12:13] Speaker 00:
I'm putting your name into it.

[00:12:15] Speaker 00:
That already has fields.

[00:12:17] Speaker 00:
And this tells us the fields are dedicated.

[00:12:20] Speaker 00:
It's predetermined that in that second authenticator field, their biometric signature is going to be stored in there.

[00:12:28] Speaker 00:
And after that, Figure 6 shows us that after that point, while they're setting this up, the players then handed the card, the first authenticator card, which then they take to another machine

[00:12:44] Speaker 00:
And at that point, the card may retrieve their information so they can put their signature in.

[00:12:53] Speaker 00:
But that signature is going to go into their player ID database in that data field for the second authenticator.

[00:13:02] Speaker 04:
How do you understand the reference to pointers?

[00:13:05] Speaker 04:
The pointers, they're- That potentially makes the memory location somewhat indeterminate.

[00:13:14] Speaker 00:
Right.

[00:13:15] Speaker 00:
I agree with that.

[00:13:17] Speaker 00:
And if we read through some of the other areas in this patent, there are many other types of information that can be included.

[00:13:28] Speaker 00:
Social security numbers, there's information that where they can free fill out forms for the IRS.

[00:13:36] Speaker 00:
And so those may have pointers or fields.

[00:13:40] Speaker 00:
But this is very clear that there is a first authenticator field and a second authenticator field.

[00:13:48] Speaker 00:
And in that second authenticator field will correspond to a biometric measurement.

[00:13:54] Speaker 00:
The biometric measurement goes in that field.

[00:13:58] Speaker 00:
What other fields are available in that account where they may add information data to connect to a W-2

[00:14:07] Speaker 00:
That could have the pointers, but the pointers are not in that field.

[00:14:13] Speaker 02:
For your time on itself, let me just ask you, on Monday, I think we were all here together on Monday, and we heard this 24,1278 CPC uses out Apple.

[00:14:24] Speaker 02:
Does the resolution of that case has any effect on this one?

[00:14:27] Speaker 02:
It does not.

[00:14:44] Speaker 02:
Yes, to be back.

[00:14:46] Speaker 03:
May it please the court.

[00:14:48] Speaker 03:
CPC's explicitly factual appeal cannot overcome the board's well-supported findings based on repeatedly crediting the opinions of Apple's expert Dr. Sears.

[00:14:58] Speaker 03:
And the court should affirm.

[00:15:00] Speaker 03:
I think as the conversation has shown this morning, the parties agree about the starting point of the analysis here, which is the board's unchallenged claim construction.

[00:15:08] Speaker 03:
And the board went to great lengths to explain what that construction does and does not require.

[00:15:14] Speaker 04:
Well, what if the other side is right, that when you look at this prior art reference, is this Bradford at column three, that the best understanding of that column is that when the player data record gets created, it has a specified memory location for biometric data.

[00:15:39] Speaker 04:
And then if that is true, then

[00:15:42] Speaker 04:
How can it be said that when subsequent card information is provided, that that card information is going to define the memory location, if the memory location has already been defined up front,

[00:16:02] Speaker 03:
Yeah.

[00:16:03] Speaker 03:
Sorry, I wasn't sure if the question was that.

[00:16:06] Speaker 03:
I think answering that question comes down to what we mean by the word defined.

[00:16:12] Speaker 03:
And that's why the board, I think, went to great lengths, because it understood that these terms define, set, establish, even identify can be susceptible to multiple meanings.

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And so the board's construction was not just to replace the word define with another word.

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The board said repeatedly that it was ensuring the entire claim phrase in the context of the claims as a whole.

[00:16:32] Speaker 03:
And what it requires, what the board understood it to require, is that when the system receives the fingerprint and the card data, that data on the card tells the system where to store the fingerprint.

[00:16:46] Speaker 03:
It establishes where to store the fingerprint.

[00:16:48] Speaker 03:
And so under that construction,

[00:16:52] Speaker 03:
when in Bradford and Foss, when they're at the gaming device, the system does not know that there may be thousands of these what council called predefined user entries in the database.

[00:17:05] Speaker 03:
And the system does not know which of those is the one to use for storing the fingerprint that was just scanned.

[00:17:12] Speaker 03:
And in the combination what the board found is the way it would work is you would scan the user's card and the data on the card would tell the system use

[00:17:22] Speaker 03:
Entry 3,271.

[00:17:23] Speaker 03:
That's the entry to use.

[00:17:27] Speaker 03:
That's where to store this fingerprint data.

[00:17:29] Speaker 03:
And the board reasonably found that that was within the scope of the claims.

[00:17:33] Speaker 03:
And I think the other piece of the board's construction, which

[00:17:38] Speaker 03:
Council did not talk about was that the board was expressed.

[00:17:42] Speaker 04:
Just to make sure I'm following you, I hate to use the word allocate, but you're saying that even if Bradford has pre-allocated a particular data field for where biometric data will be stored for a particular player, and it doesn't matter because

[00:18:05] Speaker 04:
When the card eventually gets wiped and the biometric data gets received, the card data is going to somehow guide and channel where that data goes and help that biometric data arrive at the predefined, preallocated data field.

[00:18:29] Speaker 03:
So I wouldn't say predefined just because for the reason you said, but otherwise, yes.

[00:18:35] Speaker 03:
Otherwise, yes, that was the board's understanding of the claims.

[00:18:39] Speaker 03:
And the board left no ambiguity about that, Judge Chen, because at appendix 37, the board said its understanding of the claims does not exclude an existing user entry in the database as the location for storing the fingerprint data.

[00:18:57] Speaker 03:
Obviously, that's unchallenged on appeal.

[00:18:59] Speaker 03:
We heard that just now.

[00:19:00] Speaker 03:
But it's also consistent with what the patent, to the extent that the O39 patent really explains what this limitation is about.

[00:19:08] Speaker 03:
It describes in column seven that the card data acts as a memory reference and points to a location in memory where

[00:19:17] Speaker 03:
this will be stored.

[00:19:18] Speaker 03:
And that's illustrated in figure four of the patent, where there's an arrow pointing from card data to a pre-existing memory location in a database.

[00:19:26] Speaker 03:
And then the patent in column eight explains that the benefit of this is that later on, when you want to verify a user's fingerprint, the system doesn't need to go search an entire database to find whether there's a matching fingerprint.

[00:19:40] Speaker 03:
You swipe the card again, and it looks at the card data and just checks the location

[00:19:44] Speaker 03:
that corresponds to that card data.

[00:19:46] Speaker 03:
And that's exactly what the Prior Art System here does as well.

[00:19:50] Speaker 01:
And under this- Your friend on the other side doesn't discuss an oral argument, but does in the blue brief.

[00:20:00] Speaker 01:
You're expert.

[00:20:01] Speaker 01:
And since it may come up in rebuttal,

[00:20:09] Speaker 01:
Tell me why your expert is correct in their conclusion.

[00:20:18] Speaker 03:
In which conclusion?

[00:20:21] Speaker 01:
In which conclusion?

[00:20:22] Speaker 01:
That a person of ordinary skill would obviously combine these two.

[00:20:27] Speaker 03:
Yeah, so that, I think, as maybe your question recognizes, the other side has not challenged motivation to combine or reasonable expectation of success.

[00:20:35] Speaker 03:
And for good reason, the board found that both Bradford and FOSS are directed at this issue of you already have an entry in the database that has some information about a user, and now you want to add more information to the database about that user.

[00:20:52] Speaker 03:
How are you going to do that?

[00:20:53] Speaker 03:
And the board recognized that Bradford is never expressed about how to do that.

[00:20:58] Speaker 03:
But FOSS is, and FOSS says that what our expert in his testimony is that

[00:21:04] Speaker 03:
Appendix 981, among other places.

[00:21:06] Speaker 03:
It was well known that it was a fast, easy, reliable way to use an existing user ID card, swipe the card, use the data from the magnetic strip to identify the

[00:21:20] Speaker 03:
the existing user entry in the database and then store more information there.

[00:21:24] Speaker 03:
And the board found that that both would have motivated this combination and would have led to reasonable expectation of success in arriving at exactly what is claimed here.

[00:21:39] Speaker 03:
I think to the other side's arguments about order, what the board recognized is that to the extent there's an order here, the fingerprint is not yet stored in memory during the enrollment phase.

[00:21:51] Speaker 03:
Then you receive card data in the fingerprint.

[00:21:53] Speaker 03:
And then the fingerprint, or sorry, the card data tells the system where to store the fingerprint.

[00:21:59] Speaker 03:
That's the requirement.

[00:22:00] Speaker 03:
And the board repeated about five times that the card data establishes where to store the fingerprint each time the board

[00:22:08] Speaker 03:
did that, and I think this maybe goes to the allocate question, Judge Chen.

[00:22:12] Speaker 03:
The board emphasized the words where and store.

[00:22:15] Speaker 03:
What's being established is not the memory location kind of ab initio, not allocation.

[00:22:21] Speaker 03:
It's establishing where to store the fingerprint data.

[00:22:24] Speaker 03:
That is the board's unchallenged claim construction, and the board reasonably found under the substantial evidence here that the prior art discloses that.

[00:22:36] Speaker 03:
Unless the court has any further questions, we'd ask that you affirm.

[00:22:39] Speaker 04:
Thank you.

[00:22:52] Speaker 00:
May it please the court?

[00:22:54] Speaker 00:
So Judge Wallach, I just wanted to

[00:22:57] Speaker 00:
Respond to your initial question.

[00:22:59] Speaker 00:
Were you asking about the, in the record below?

[00:23:02] Speaker 00:
Yes.

[00:23:03] Speaker 00:
Yes.

[00:23:03] Speaker 00:
So on appendix page 255, we state that FOSS does not cure the deficiencies of Bradford in failing to teach this limitation.

[00:23:13] Speaker 00:
Notably, FOSS does not teach enrolling a single user account by utilizing received card information to define a memory location.

[00:23:21] Speaker 00:
Instead, FOSS is directed towards expanding an existing user account

[00:23:27] Speaker 00:
which petitioner references in its petition.

[00:23:32] Speaker 00:
Portions are fast-quoted, and we end up quoting some language from there.

[00:23:43] Speaker 00:
And then, quickly, I wanted to address something that my friend said about using the card data

[00:23:52] Speaker 00:
in suggesting that Bradford or FOSS could once that card data is received to somehow change where that biometric signature will be stored and there's no evidence of that and it's very clear Bradford is explicitly clear which data field that biometric signature is going to be stored.

[00:24:18] Speaker 00:
And he also mentioned figure four in the patent, which talks about pointing to a memory location.

[00:24:26] Speaker 00:
And figure four is an early figure.

[00:24:28] Speaker 00:
It actually is titled as the concept.

[00:24:34] Speaker 00:
And we can read in column seven on appendix 75, starting at line 34, it describes figure four, this concept of the system and the method, and it

[00:24:48] Speaker 00:
doesn't start to describe what is the initial enrollment phase and then the verification phase until just below that.

[00:24:59] Speaker 04:
I'm sorry, you're out of time, but could you just respond quickly to opposing counsel's argument that because the card information will tell the system

[00:25:14] Speaker 04:
where to store the fingerprint data.

[00:25:19] Speaker 04:
That's all that is required under the unchallenged claim construction.

[00:25:28] Speaker 00:
Apple does this multiple times in their brief.

[00:25:32] Speaker 00:
They do it on page one.

[00:25:34] Speaker 00:
Just tell me the answer.

[00:25:34] Speaker 00:
The answer is that they are ignoring the statement that we looked at earlier which before the card information is received there's no memory defined and where that biometric signature will be stored.

[00:25:49] Speaker 04:
Their point is that doesn't matter.

[00:25:52] Speaker 04:
All that matters is under the claim construction

[00:25:55] Speaker 04:
is there something in that card information that's going to direct the system where to store the data.

[00:26:03] Speaker 04:
The fact that that particular memory location may have already been pre-allocated for storing that data once that data is ever received is beside the point in their view.

[00:26:17] Speaker 04:
Their view is once the system reads the carved data,

[00:26:22] Speaker 04:
The card data is going to tell the system where to store the fingerprint data.

[00:26:27] Speaker 04:
And that's good enough under the unchallenged claim construction.

[00:26:35] Speaker 00:
We would disagree with that.

[00:26:37] Speaker 00:
What he's explaining and how he's interpreting this claim is that in that scenario, the card is swiped and it is pointing to

[00:26:49] Speaker 00:
a location that's already been predefined.

[00:26:53] Speaker 00:
And the card isn't actually defining it.

[00:26:56] Speaker 00:
It's not dependent upon the card information to define that memory location.

[00:27:02] Speaker 00:
And that is what happens in our claim two, where the user's already enrolled in this verification system, and there's already a biometric signature.

[00:27:14] Speaker 00:
And whether it's there or not, that

[00:27:18] Speaker 00:
isn't the point.

[00:27:19] Speaker 00:
The point is, in the enrollment, in this claim, that card information is the thing that defines where the signature is going to be stored.

[00:27:31] Speaker 00:
It cannot have already a spot waiting to receive it.

[00:27:36] Speaker 00:
It's the card information, and this patent will automatically allow the user to enroll that, and it's based on the card data and dependent upon that received card data.

[00:27:47] Speaker 00:
which is different in Bradford.

[00:27:52] Speaker 00:
Bradford is the example he was using.

[00:27:54] Speaker 00:
It's already defined.

[00:27:56] Speaker 00:
They swipe the card.

[00:27:57] Speaker 00:
The card knows where it's going to go, but it's not doing the defining.

[00:28:03] Speaker 02:
Thank you.

[00:28:03] Speaker 02:
Time's up.

[00:28:04] Speaker 02:
Thanks both sides.

[00:28:05] Speaker 02:
The case is submitted.