[00:00:00] Speaker 04:
Our next case this morning is number 24, 22, 23, Metron Rail versus Siemens Mobility. Okay, Mr. Shadi. Thank you, Your Honor.

[00:00:12] Speaker 01:
And if I may reserve five minutes for rebuttal.

[00:00:17] Speaker 01:
My timer's at 15.

[00:00:19] Speaker 04:
Well, we'll see. All right. You use it up, you use it up. Go ahead.

[00:00:25] Speaker 01:
Thank you, Your Honor. May it please the Court.

[00:00:28] Speaker 01:
The Board erred by deciding there was no nexus to any objective indicia, which included copying, but declined to consider that evidence at all. Nothing illustrates that error better than the Board's analysis of Claim 7 of the 227 patent. You can find that in the 227 final written determination at Appendix 140-45.

[00:00:55] Speaker 01:
That claim is where our nexus and objective indicia evidence was at its peak. But the board did no analysis, relying solely on its nexus findings, which were driven by a faulty reading of this court's precedents, particularly ORMCO and EDA.

[00:01:15] Speaker 01:
The Board's decisions on Claims 2 through 4 must also be reversed because the implied construction of the tracking a location to mean any tracking with no precision at all is not a plausible reading or claim interpretation of Claim 2.

[00:01:42] Speaker 01:
Two things must be deemed conceded by the petitioner. First, the only grounds raised were Section 103 challenges. There was no novelty challenge in this case. You can find that in the appendix at pages 4920 through 30.

[00:02:02] Speaker 01:
Second, there was no declarative or counterfactual evidence offered by the petitioners other than argument.

[00:02:11] Speaker 01:
on the merits of our copying, praise, long-felt need, or commercial success objected indicia.

[00:02:20] Speaker 04:
So the problem is your own president testified that the commercial product had features that weren't in the patent. And he testified, if I recall correctly, that those were not insignificant features. And so under Fox Factory, it would seem to be difficult to establish nexus with that testimony.

[00:02:42] Speaker 01:
Yeah, under Fox Factory, they found that the only feature that was contributing to the success was claimed in a different patent and was not claimed in the patent in Fox Factory. So I think it's distinguishable on that basis. But the questions that were asked were... is it an important feature? Is it a feature that customers appreciate or find important? There was no relative analysis in that as to how important that feature was to the feature of the invention, which is collision avoidance.

[00:03:14] Speaker 01:
And the testimony was consistent by everyone that the headline feature here is a collision avoidance system that is formed by the combination of limitations that you arrive at at the claim And the combinations that were asserted in these claims were never claimed to be anticipated, only obvious. And under Graham, you have to reach the objective indicia in that circumstance. And you can find that testimony regarding the critical feature being the system claim or the combination of elements.

[00:03:45] Speaker 01:
In the appendix, you can find it at Appendix 4195. That's the Coklev Declaration. 4169, that's the Gunther Declaration. 4159, that's the Marche Declaration. You can find it in Mr. Marche's testimony at 4806-07. That's the Marche Deposition. You can also find it in the Gunther Dep at Appendix 4576. The customers are looking for collision avoidance. Gunther deposition at 4554.

[00:04:13] Speaker 01:
The invention is essentially collision avoidance.

[00:04:17] Speaker 01:
All of that evidence is not challenged by the petitioners factually. They only argue on the nexus point, and then they point to some features that a customer says is important. Well, you have to weigh that relative to the headline feature and which is collision avoidance, which is provided by the combination of the claim. And that was unique in the industry at the time. There was nothing like the AORUS system until we came along and introduced it. It is in the niche of this maintenance-of-way collision avoidance area, but nevertheless, there was nothing comparable to it before.

[00:04:52] Speaker 01:
And the only thing to come along since that competes directly with it is the petitioner's helix system, which we allege, and they never met this head-on in reply, is a copy of our system. And so for that reason, they should have found a nexus, should have considered the objective indicia, which all point to non-obviousness.

[00:05:17] Speaker 01:
Three things. First, nexus should have been presumed in this case. Our claims cover the product. The product embodies the claims. The patent was written to cover it. The testimony on that was unrefuted.

[00:05:29] Speaker 02:
Right. Just to be clear, so many lawyers seem to have a problem with this, and I don't understand why there's a problem. The fact that claims cover something does not mean that the thing is coextensive with the claims. Everything, for example, you could have a claim that requires one teeny little thing and a multi-accused thing, a product has many, many features.

[00:05:59] Speaker 02:
Well, that many, many featured product would be covered by the claim. It wouldn't be coextensive. So you just use three different versions of the claim covers of it. It's written to cover it. That doesn't mean coextensiveness.

[00:06:11] Speaker 01:
Sure, and I think where you see this, Your Honor, is in the – DeMarco is the case that I would refer back to on this, where the claim covered, I believe, was a construction brick. And the claim was written to cover the brick. The product and the claim were coextensive. The aura system is the same thing here. There's no larger system that aura is a component of.

[00:06:35] Speaker 02:
But the aura system, I thought your own president said, had a number of features in it that were not claimed by the patent. Sure, but that's always going to be the case. I mean, there's rarely... That's why the Fox factory, et cetera, formulation says coextensive means, you know, pretty darn close to nothing else, and in particular, nothing else significant.

[00:07:05] Speaker 01:
But that's reductive, Your Honor, in the sense that now you're telling me that if I want a coextensive claim for commercial success, I've got to write the narrowest possible claim that covers every possible feature or I can't have a nexus.

[00:07:18] Speaker 02:
It's not that you can't have a nexus. You just have to prove the nexus. I think all we've been talking about so far is the presumption of nexus. But you could have proved it without the presumption.

[00:07:31] Speaker 01:
Well, I think we did to that point. Why don't you talk about that? Big pardon? Why don't you talk about that? Sure.

[00:07:38] Speaker 01:
Each of the factors, commercial success, long-felt need, skepticism in the art, copying, all is tied back to the patented product, Aura, or a feature in the claims of the patented product. And I hesitate to use feature in the claims because it leads to this analysis where you've got to prove that the feature is not obvious, which is putting the cart before the horse, so to speak.

[00:08:06] Speaker 01:
But, for example, skepticism was specifically tied to the use of radio and specifically UWB radio in a collision avoidance system, and there's ample testimony on that.

[00:08:19] Speaker 01:
Mr. Gunther, for example, at 4175 through 777, talks about the power and bandwidth concerns and interference with other radio systems used by the railway. Appendix 4602, Mr. Gunther is talking about frequency interference. Appendix 4385, there's a discussion of how UWB is a dead technology. Appendix 3452 to 60, Mr. Conte talks about the history of UWB in the rail industry. and how people in this industry didn't want to use it, and how it's not in any other commercial system.

[00:08:51] Speaker 01:
At 4179, Mr. Gunther, again, no other system uses any of these things.

[00:08:55] Speaker 02:
Just a point of clarification.

[00:08:57] Speaker 02:
Is ultra-wideband recited in the 131 claims at issue?

[00:09:03] Speaker 01:
It is not, but it is, as I pointed out, recited in the 227.

[00:09:08] Speaker 01:
And specifically claim 7.

[00:09:11] Speaker 01:
of the 227, which was the four claims we offered up our nexus evidence on. And that's where our nexus evidence, I think, was strongest, to your point, talking about futures. But it's not just UWB.

[00:09:22] Speaker 01:
It's the combination of UWB with GPS in a collision avoidance system that has the other limitations of the claim. You can't take out any piece and then still have a collision avoidance system. For example, there is nothing in – and the claim is not anticipated by Grisham. That was their best reference. You have to heavily modify Grisham. to get to the claim.

[00:09:46] Speaker 01:
There's no one embodiment in their best prior art reference that is, for example, claim one. You know, that argument was made, but it was never asserted as a ground in the petition. and they never put in the evidentiary findings that you would need to make Grisham, turn Grisham into a 102. Instead, their expert modifies the sixth embodiment in Grisham to get to our claim, because as it stands, that's not the invention at all. Instead, what we do is we've got the three modules. We combine the transmitter and the receiver in one, control electronics, transponder module, user interface module with a user input module, UWV, GPS, those things all work together to give you the first workable system for this application that the industry had ever seen.

[00:10:33] Speaker 01:
Prior to this, they were using their eyeballs. After it, they were buying us. Only after we proved that it was commercially successful did they enter the market. Real briefly, because I don't want to use all my rebuttal time, On claims two through four, Douglas does not have tracking a location in it. They made a legal error in terms of interpreting the limitation for tracking a location. The legal error was you cannot say that tracking a location means tracking with any precision at all. I would refer you to Douglas appendix page 203 and two, I'm sorry.

[00:11:08] Speaker 04:
Where does the claim require precision?

[00:11:11] Speaker 01:
The The specification talks about how the machinery has a range. You find that at 203, column 21, lines 32 to 47. It's not in the claim.

[00:11:22] Speaker 01:
But in context, unless you have some kind of precision, you have a meaningless system. And Douglas does not track any location at all. All it tracks is a route. If I tell you I'm walking down H Street tomorrow and my colleague is walking down 15th sometime in the future, you can say that those routes collide at some point, but you can't tell me where either one of us are. And that's all that Douglas does, and it certainly doesn't tell you where you are over time. I'm eating into my rebuttal. If there's more questions, I'll answer them, but otherwise I'd like to save the rest of it for the Crossfield.

[00:11:55] Speaker 04:
Okay.

[00:11:58] Speaker 04:
Mr. Wisner, how are you and Mr. Sepko dividing the argument?

[00:12:03] Speaker 04:
Are you doing the main appeal and he's doing the cross appeal?

[00:12:06] Speaker 03:
Correct, Your Honor. I'll handle the main appeal and he'll handle the cross appeal.

[00:12:20] Speaker 03:
May it please the Court, Your Honor, Howard Wisney on behalf of the appellee and cross appellant. I'll handle the main appeal and Mr. Sefko will handle the cross appeal.

[00:12:32] Speaker 03:
With respect to claim all the claims, all the independent claims except for claim seven of the 227 patent, claim one of the 131 and claim one of the 227, the court correctly found that Grisham taught all the requirements of the claim. The only evidence below that was even presented, argument that was presented below, was secondary considerations of non-obviousness. They conceded that Grisham taught all these requirements.

[00:12:59] Speaker 03:
As the court noted, co-extensiveness is a separate requirement to obtain a nexus for secondary considerations.

[00:13:07] Speaker 02:
No, that's not right.

[00:13:09] Speaker 03:
I apologize if I misspoke.

[00:13:10] Speaker 02:
Co-extensiveness is a basis for getting a presumption.

[00:13:14] Speaker 03:
My apologies, Your Honor. I agree. I apologize. I misspoke. With respect to the presumption, the only evidence they put in was the declaration of their expert, Kuklev. And Kuklev admitted that, in fact, he did not apply the correct test. His testimony is reproduced at page 39 of our opening brief. Question. So in your view, if a product meets all the requirements of the claim, whether or not it has additional features is irrelevant to whether it's coextensive.

[00:13:44] Speaker 03:
Answer, yes.

[00:13:47] Speaker 03:
So he, in fact, applied the wrong test. He basically applied an infringement analysis without any sort of coextensive analysis. And as the panel has already recognized.

[00:13:56] Speaker 02:
Why don't you talk about why the board was right, in your view, in finding that there was no nexus?

[00:14:05] Speaker 03:
Without a presumption?

[00:14:06] Speaker 02:
Yes. Yes.

[00:14:08] Speaker 03:
So because there was no presumption to be met, the patent owner still had an opportunity to try to prove a nexus, but they were required to prove that there was some sort of novel feature or inventive combination that was somehow tied to the secondary indicia of non-obviousness. They didn't do that. They just said, look at the claim. All the features in the claim are important. But there was no analysis as to these features, these important things are what drove the commercial success. This is what led to the skepticism.

[00:14:39] Speaker 03:
The board looked in vain for this analysis, and it wasn't presented.

[00:14:45] Speaker 03:
The Patent Owners Council said, well, our best evidence is Claim 7 of the 227 patent.

[00:14:52] Speaker 03:
That claim requires UWB and GPS.

[00:14:58] Speaker 03:
No one has offered testimony that that unique combination of UWB and GPS, one was novel, not known in the prior. In fact, the court, the board below made a factual finding that Nixon itself taught the use of using UWB and GPS. And furthermore, the testimony of the patent owner's president, Mr. Marchi, that they cite to, and this is at page 14 and 15 of their surreply brief, of the reply brief, Mr. Marchi says the key feature was UWB collision avoidance.

[00:15:37] Speaker 03:
Not UWB plus GPS, UWB collision avoidance, which indisputably is taught in the Grisham reference, because Grisham teaches all the requirements of claim one.

[00:15:48] Speaker 03:
So, These tests, as far as I can understand that this court has laid out in its cases, really is focused on a particular question. And the question is, if you're going to come forward with commercial success or you're going to come forward with secondary considerations of non-obviousness, we need to really understand what features or what aspect is driving it. Is it really the invention? Is it marketing acumen? Is it some other unclaimed feature? We need to get to that point to really understand the value, if any, to the secondary considerations.

[00:16:21] Speaker 03:
So they, as the patent owner, have to come forward and say, these particular features...

[00:16:28] Speaker 03:
achieve this result. And they need to explain why that, how that does that. They just didn't do it. The board, I think, in a well-reasoned opinion, as you walk through their opinion, looks for it. They're saying, show it to me. And it was not found there.

[00:16:49] Speaker 03:
Now, with respect to claim two, it is entirely a claim construction argument. They do not fight motivation to combine. They do not fight the teachings of the references. The question is whether or not claim two was properly construed by the court. They say location requires precise location. And the board found, no, it did not.

[00:17:14] Speaker 03:
Well, first, that's an unclear term. What is a precise location anyway? But also, the board said, if I read your specification, you have various levels of precision, including reasonable approximation of location.

[00:17:28] Speaker 03:
the board made factual findings as to the teachings of the references and found that Douglas, in fact, found the location. And if you read Douglas and if you look at the findings, they're talking about knowing what track they're on with respect to what links within three kilometers of the station. And so an example that the patent owner given the brief is saying, hey, this is like saying you're on the 80 between Chicago and Denver. It's not really telling you anything. It's not an accurate analysis.

[00:17:58] Speaker 03:
At best, you could say this is like being on the 80 going eastbound between mile markers 1 and 3, because you know where you are with respect to this 3-kilometer matter. And that is, you obviously need to know something, some precision, some level of location, because you're trying to avoid a collision. That's the whole process, the purpose of the Douglas reference.

[00:18:25] Speaker 03:
Now, with respect to Claim 7, they make some arguments which are simply an attempt to reweigh the evidence.

[00:18:35] Speaker 03:
The board did an analysis. They made factual findings as to the teachings of Grisham and Nixon. They saw that Nixon itself taught the idea of using UWB and GPS. They relied on the testimony of our expert as to why one would be motivated to include UWB and GPS. They just don't like that evidence. They say, look at this other evidence that we have that we would say is better evidence on this point. That's just a request to reweigh evidence and does not meet the substantial evidence standard that they would have to overcome in this case.

[00:19:05] Speaker 03:
Unless the court has questions, I'll reserve the remainder of the time for Mr. Supko.

[00:19:10] Speaker 04:
Okay.

[00:19:12] Speaker 04:
Mr. Supko.

[00:19:35] Speaker 00:
May it please the Court, Mark Supco. I'm going to briefly address the cross-appeal issues.

[00:19:42] Speaker 00:
Grisham teaches that its collision avoidance system provides two related but different ways of informing a train of an oncoming additional train. The board's final written decision addressed only one of those.

[00:19:59] Speaker 02:
Let me ask you about that. I mean, I guess I was startled. It might be a little bit too strong, but not very. So your argument on this point in your cross-appeal, from page 3 to 4, 24, 25, 26, 64, is not quite all about, but is first and mostly about Grisham column 24, lines 25 to 29.

[00:20:29] Speaker 02:
Your petition did not rely on that in making its claim 17 argument at all.

[00:20:38] Speaker 02:
In the little background, In a paragraph about Grisham, it cites the passage, but does not make the point that this notified language of 24, 25 to 29 teaches this element. In the reply, you again, you cite the passage only as part of a see element.

[00:21:06] Speaker 02:
Mr. Andrews paragraph 192 citation behind a sentence that says the only way it's possible for this information to get in the right hands is to be transmitted by air. But again, you don't quote the language. You don't say the language raises this issue. It's about notifying of presence and speed. Here's why that would turn into a Communication by air of distance, just nowhere there.

[00:21:38] Speaker 02:
And then you got asked about this at the oral hearing, and you basically said, right, we didn't have that on this point. So how could there be an abuse of discretion by the board to say that is not part of the case you made for Claim 17?

[00:21:56] Speaker 00:
Your Honor, going right back to the petition, the argument that was made in the petition was that Grisham teaches that these impulse signals that are sent from one train to another carry information. They carry speed, distance, and I'm sorry.

[00:22:16] Speaker 02:
Sorry, that was the assertion.

[00:22:20] Speaker 02:
And it was backed by an essentially identical citation to Mr. Andrews' paragraph 192, which relies entirely on figure 22 and his assertion about what's going on in figure 22. And then that issue got litigated a little bit later with the question being, Is it really the case that in order at the very end of figure 22, the receiving train to display the separation distance, it has to be sent that separation distance?

[00:22:57] Speaker 02:
And the board said, no, it just calculates it. But again, nothing about what is now the center point of your argument on the cross appeal, which is look at this modified sentence of Grisham 24, 25 to 29.

[00:23:14] Speaker 00:
Well, respectfully, Your Honor, I don't think it was a modified sentence. The argument with respect to Grisham.

[00:23:24] Speaker 02:
I didn't mean the sentence was modified. The sentence has the word modified. Notified. I'm sorry. I'm sorry. My mistake. Notified, Your Honor.

[00:23:32] Speaker 00:
It's true that Mr. Andrews cited to Figure 22, but throughout the petition, throughout his declaration supporting the petition, he was discussing the Figure 21-22 embodiment. The board appreciated that that notification disclosure, that one sentence was part of that disclosure. They actually quoted it in the institution decision. They cited it in their own description of the Figure 21 and 22 embodiment that was at issue. in the final written decision.

[00:24:04] Speaker 00:
Now, at the oral hearing, and let me just note, there was no finding that the board rejected any argument. There was no finding of an untimely argument contrary to what was argued.

[00:24:17] Speaker 02:
I guess what I would say is, clearly but implicitly, the board said, indicated that you couldn't rely, that that paragraph in Grisham was not a presented basis for finding Claim 17 satisfied. Because the reason I think it's implicit and not explicit is it doesn't say that. The reason I think it's clear is that this came up at oral argument and you said, yeah, that was actually not part of our Claim 17 argument.

[00:24:50] Speaker 00:
At oral argument, well, first off, in the reply, we were responding to an argument that was specifically made by the patent owner in response to our petition. They didn't dispute that there was information that was passed in these impulse signals. Their only dispute was...

[00:25:09] Speaker 00:
Distance in figure 22 is something different from separation distance. That's the argument that we were responding to. We were trying to say, no, in this, where we're talking about passing information in these signals, the only way that you get distance on one side is if that separation distance is passed over. The board interpreted that as us saying that there was only one way that separation distance gets over. But the very next sentence in that argument talks about the way that separation distance is calculated by the second train.

[00:25:47] Speaker 00:
And all throughout Mr. Andrews' declaration, There's that discussion of how that separation distance, you receive an impulse signal, you perform the time-of-flight analysis. That's how separation distance is determined. It's after that in Grisham where you have this notification system disclosure. It says, okay, I've calculated as the second train. I've calculated the separation distance. Now, if the other train has the same thing, I can notify it.

[00:26:19] Speaker 00:
I can let it know what I've already calculated. It says presence and speed, but that's at the end of the discussion of calculating separation distance. That's a disclosure that's in addition to what the second train is doing.

[00:26:35] Speaker 04:
So do I understand the board correctly? is saying that you have to actually communicate the separation distance as opposed to the time of flight data.

[00:26:49] Speaker 00:
I don't believe the board held that. My understanding of the board's findings, they said two things. First off, it's not required that the second train send separation distance back, and we would agree with that. It's not required, and we cite that discussion in our reply brief. But the board then said there's no reason for the second train to send separation the separation distance back to the first train. And they adopted an argument that was made in the surreply by Metron there with no supporting evidence.

[00:27:22] Speaker 00:
But there is a reason, and the reason is expressed in the Grisham disclosure. It's to notify the first train of the separation distance.

[00:27:34] Speaker 04:
I'm confused.

[00:27:36] Speaker 04:
The claim itself talks about, claim 17 itself talks about time of flight calculations. Obviously it contemplates separation distance being determined by a time of flight calculation.

[00:27:49] Speaker 04:
It doesn't seem to suggest that the actual separation distance is being communicated because it doesn't say the separation distance is communicated, but just data representing the separation distance.

[00:28:07] Speaker 04:
So clearly on the face of it, Claim 17 talks about using time of flight data to calculate separation distance. And Grisham seems to contemplate doing that also, right? So what's the board's problem? I'm confused as to what the board is supposedly saying here.

[00:28:30] Speaker 00:
There was no dispute below, Your Honor, that when the second train, it's a little bit confusing, first train, second locomotive. When the second locomotive receives an impulse signal that was sent by the first locomotive, it performs the time of flight calculation to determine the separation distance between it and that first locomotive. No dispute about that. Was the board saying there's no reason to do that? No, the board said there's no reason to take that next step.

[00:29:01] Speaker 00:
The disclosure at column 24 lines... The next step of sending the result of its calculation...

[00:29:09] Speaker 00:
In the air. Back to the first train. Correct, Your Honor. The only way that these trains communicate is through these impulse signals getting sent back and forth. So the board said there's no reason why the second train would send that information back to the first train because the first train can just figure it out for itself if it gets that impulse signal. Well, the second train doesn't know that the first train is going to be able to do that. But what we do know is...

[00:29:36] Speaker 00:
the collision avoidance system can be used to transfer information between people on these trains. The board found that itself with respect to claim one. It acknowledged, yes, information can be passed between people on these two trains. So the board's issue here was after Grisham describes using the time-of-flight technique to calculate the separation distance, then says it should be understood that the second locomotive could then inform the first locomotive of the presence and speed, which follows immediately after the calculation of the separation distance.

[00:30:18] Speaker 00:
The board said there's no reason to do that. Well, it's a collision avoidance system. Grisham expressly discloses that the second locomotive notifies.

[00:30:29] Speaker 02:
I guess this is what I'm recalling, so I might be wrong.

[00:30:35] Speaker 02:
When you put aside, as I think the board clearly did, that Grisham, column 24, lines 25 to 29, because you didn't rely on it, it was making the point about there is no reason to specifically in response to your contention that it's impossible to get the separation distance to the second train without sending that information to the second train, rather than sending other information from which the second train can calculate it.

[00:31:17] Speaker 02:
And the board said, no, that's not right. The second train can take this other information, which does not itself represent the separation distance and calculate it.

[00:31:27] Speaker 00:
Understood, Your Honor. That is how the board interpreted our argument. I'll grant you it was not a model of clarity, but all through this petition, all through the portion of the specification that we cited, and in our reply brief, we acknowledge that a train can receive an impulse signal use the time of flight technique, and calculate separation distance. This disclosure at column 24, lines 25 to 29, comes after that. It's an additional thing. It could also be understood that the first train could be notified.

[00:32:03] Speaker 00:
We never argued that the first train couldn't figure it out for itself. It certainly can. But the claim doesn't require that you do the notification. It doesn't require that you carry it the separation distance over the air all the time. It just says you've got an antenna that's capable of carrying that information.

[00:32:26] Speaker 00:
And I am well into my time.

[00:32:34] Speaker 00:
I'll reserve that minute for rebuttal if I can. Thank you.

[00:32:44] Speaker 01:
Thank you, Your Honor. May it please the Court. First, I'm copying. I don't feel like I answered your question before.

[00:32:51] Speaker 01:
completely. There's more evidence than it just infringes.

[00:32:55] Speaker 01:
Piper hired our consulting engineer to do and execute the product that we allege is a copy. You can find all of that evidence in the record.

[00:33:06] Speaker 02:
But am I remembering right, there's some other evidence to the effect that their product was already designed with respect to the claimed elements even before the The fellow came over.

[00:33:18] Speaker 01:
The MTA product is a different product. It predates Helix. It was their first attempt. Didn't work out. I don't think those projects went anywhere. What they ended up doing is hiring our consulting engineer and copying Helix. That's what they ended up doing. That's outstanding evidence of copying. That's an outstanding objective indicator and should always be considered.

[00:33:40] Speaker 01:
Grisham, all elements, not in one embodiment. They have to modify it. I think you heard a lot of that in the argument you just heard. You could. Maybe you might.

[00:33:51] Speaker 01:
Metron did. Grisham didn't. At the end of the day, they've got to grab these other pieces and get them together. On the sublimitation, GPS combined with UWB, again, that's not the invention. The invention is the entire claim. But that particular combination is described in the patent statement.

[00:34:10] Speaker 01:
In the text, it's particularly advantageous. You can find that at column 2, lines 60 to 66, appendix 227, and 228 at column 3, lines 13 to 34.

[00:34:25] Speaker 01:
Regarding Douglas, claims 2 through 4, and in the zone, again, if you look at the text, column 9, lines 25 to reads a unique identification of the link, that's the path, that would follow. So it's a future path that it's talking about. Douglas doesn't track a location of anything. All it does is determine the street.

[00:34:49] Speaker 04:
Before we run out of time, would you address the Crossfield, please? Address the cross appeal.

[00:34:54] Speaker 01:
Yes, Your Honor. The cross appeal, Judge Trani, you have it exactly right. There was nothing wrong with the board's analysis. It was waived by not bringing it in the petition in the first place.

[00:35:02] Speaker 04:
What is the board's analysis?

[00:35:04] Speaker 01:
The board's analysis, they did look at the section that you referred to, and they talk about time position measurement, I think is in the passage that they point to. But there's nothing in there that requires transferring a distance. It doesn't talk about transferring a distance measurement. It's a time position determination. It's actually different than the text that they point to now.

[00:35:23] Speaker 04:
They're incorporating something else. The claim contemplates a time of flight calculation, right? That's true, Your Honor. Yes. And Grisham describes a time of flight calculation. It does. Okay. So what's the problem with the argument that they made?

[00:35:39] Speaker 01:
The problem is that all that you get out of a time position measurement is all that's transmitted is a clock time. The Transmission time and a reception time. Transmission time represents from which you can calculate distance. You can calculate the time of flight as long as you've got synchronous clocks. There's issues with time of flight. I don't want to get into it here. But the time position method does not transmit a distance. The board properly found that.

[00:36:06] Speaker 02:
So one way, at least in thinking about, I don't know...

[00:36:13] Speaker 02:
whether it captures the question, though I'm not sure there was any dispute about this.

[00:36:23] Speaker 02:
Did the other side make the argument that the data sent for purposes of the recipient making the time-of-flight calculation represents The separation distance.

[00:36:44] Speaker 01:
I don't believe they did, Your Honor. I don't remember seeing... I don't recall that at all. I think they just say, well, you can assume it's in there somewhere.

[00:36:51] Speaker 04:
Well, I don't know if it's a part of the petition that's not in the joint appendix, unfortunately, which is 18 and 19, where it does seem to argue that.

[00:37:05] Speaker 01:
I'm sorry, Your Honor, I'm not... Well, okay.

[00:37:09] Speaker 01:
You got me off script there. But the problem is they didn't.

[00:37:13] Speaker 04:
This version further describes this application of time-of-flight technique by reference to Richards, and it talks about how they describe distance using a time-of-flight technique.

[00:37:30] Speaker 01:
Again, that's Richards. It's a different reference. It's an incorporated reference, and they're talking about a different time-of-flight technique in that reference than what they're talking about In the passage they originally pointed to the board.

[00:37:40] Speaker 04:
Grisham further describes this time of flight technique.

[00:37:45] Speaker 01:
Yeah, there are multiple time of flight techniques. Time position measurement is one. The method described in Richards is a different one.

[00:37:54] Speaker 01:
But you have to go with what they relied on in the petition, which was the time position one that they referred to, which it does not. transmit a distance. And the board, I think, did a pretty thorough analysis of Grisham.

[00:38:06] Speaker 04:
You can hardly say they were. There's no actual communication of the distance. The question is whether data representing distance was said. And the argument, as I understand it, is the time of flight technique does send data representing distance, right?

[00:38:22] Speaker 01:
Yeah, I think that's the argument now. It's not the argument they made then.

[00:38:25] Speaker 04:
So is the only question whether, is the argument they're making now wrong?

[00:38:30] Speaker 01:
I would say, first, it's untimely. They should have raised that in the petition.

[00:38:34] Speaker 04:
Put aside timeliness. Is it wrong?

[00:38:38] Speaker 01:
And I have not given that any thought, particularly, on whether or not the – I don't think the time position measurement that they're talking about is a transmission of a distance. I would say it's just wrong.

[00:38:50] Speaker 01:
Because all it is is a clock time. It's not data representing a distance. The receiver has to work it out.

[00:38:56] Speaker 04:
Distance from it, right?

[00:38:57] Speaker 01:
Right. You can, absolutely.

[00:38:59] Speaker 04:
Sure, that's the problem.

[00:39:01] Speaker 01:
But that's not data representing. And then it's a problem with the board not construing the claim, and the petitioners did not offer a claim construction on that point. So, again, it comes back to the petition and how they framed this argument originally. I am, over time, very quickly, you cannot reweigh evidence that the board never considered. The objective indicators are always the best indicia, not obvious.

[00:39:23] Speaker 04:
I think you've covered that.

[00:39:25] Speaker 01:
Yeah. Metron did everything right. The case should be reversed. Okay, thank you. You're welcome. Thank you, Your Honor. You have one minute.

[00:39:39] Speaker 00:
Just very briefly, Your Honor, we did not argue with respect to Claim 17 about the time of flight limitation because it wasn't disputed. The only limitation of that claim that was disputed was whether or not Grisham taught actually communicating the separation distance over the air. We submit that it does. It does in the notification disclosure that was encompassed within the evidence that we cited in our reply brief.

[00:40:12] Speaker 00:
The Board said it was limiting its analysis to what was in the reply brief, evidence and argument in the reply brief.

[00:40:20] Speaker 00:
That evidence was in there and is consistent with the position that Petitioner took right from the very beginning, that those impulse signals are can carry information, including separation distance, and the board in finding claim one unpatentable agreed you can send information from a person on the second train to the first train in those impulse signals. Your honors have no other questions. I thank you for your time.

[00:40:48] Speaker 04:
Okay. Thank you. Thank all counsel. The case is submitted.