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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`UNIFIED PATENTS, INC.,
`Petitioner,
`
`v.
`
`FALL LINE PATENTS, LLC,
`Patent Owner.
`____________
`
`Case IPR2018-00043
`Patent 9,454,748 B2
`____________
`
`Record of Oral Hearing
`Held: December 14, 2018
`____________
`
`
`
`
`Before MICHELLE N. WORMMEESTER, SHEILA F. McSHANE, and
`JOHN R. KENNY, Administrative Patent Judges.
`
`
`
`
`Case IPR2018-00043
`Patent 9,454,748 B2
`
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DAVID W. O'BRIEN, ESQUIRE
`RAGHAV BAJAJ, ESQUIRE
`DAVID L. McCOMBS, ESQUIRE
`Haynes and Boone, LLP
`2323 Victory Avenue, Suite 700
`Dallas, TX 75219
`
`ROSHAN MANSINGHANI, ESQUIRE
`JONATHAN SHROUD, ESQUIRE
`JONATHAN R. BOWSER, ESQUIRE
`Unified Patents, Inc.
`1875 Connecticut Ave, NW, Floor 10
`Washington, DC 20009
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`
`
`
`
`TERRY L. WATT, PhD., ESQUIRE
`Crowe & Dunlevy
`321 South Boston, Suite 500
`Tulsa, OK 74103
`
`MATTHEW J. ANTONELLI, ESQUIRE
`MICHAEL D. ELLIS, ESQUIRE
`LARRY D. THOMPSON, JR., ESQUIRE
`Antonelli, Harrington & Thompson, LLP
`4306 Yoakum Blvd, Suite 450
`Houston, TX 77006
`
`
`
`
`The above-entitled matter came on for hearing on Friday, December
`
`14, 2018, commencing at 1:02 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2018-00043
`Patent 9,454,748 B2
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`P R O C E E D I N G S
`- - - - -
`JUDGE KENNY: Good afternoon. Welcome to the Board. We have
`Judge Michelle Wormmeester in the Hearing Room, Judge Sheila McShane
`and I, are appearing remotely.
`Let me remind Counsel that Judge McShane and I can only -- let me
`remind Counsel that Judge McShane can only see if you're speaking
`standing at the podium.
`This is the Oral Hearing for IPR 2018-00043. Both sides have 60
`minutes of argument time. Let's begin with the introduction of Counsel,
`starting with Petitioner, followed by Patent Owner.
`MR. BAJAJ: My name is Raghav Bajaj for Petitioner, Unified
`Patents. With me is: Lead Counsel David O'Brien, as well as David
`McCombs and Jonathan Shroud.
`MR. WATT: Good morning, Your Honors. My name is Terry Watt,
`for Fall Line Patents, and I also have Michael Ellis here. I'm Lead Counsel
`and Michael Ellis is here with me, and he'll be speaking as well.
`JUDGE KENNY: Okay, Mr. Bajaj. Do you want to reserve some
`time for rebuttal?
`MR. BAJAJ: Yes, Your Honor. I would like to reserve 20 minutes
`for rebuttal.
`JUDGE KENNY: All right. At the start of each of your oral
`arguments, I'd like both parties to address the Petitioner's objections to the
`Patent Owner's demonstratives. But let's also start with this understanding:
`that the demonstratives are not evidence and are used as visual aids only.
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`Any arguments in evidence that are not in the record will not be
`considered by the Panel in rendering the final written decision. Further,
`arguments and evidence that were presented in the preliminary response but
`not in the Patent Owner response are waived.
`And as a reminder when you're using demonstratives today, please
`refer to the slides by number. Mr. Bajaj, you may begin.
`MR. BAJAJ: Thank you, Your Honor.
`JUDGE KENNY: And just as a clarification point. I think we are
`having some issues with the clock there, so you may not have a display of
`the time but, you know, we are recording it here.
`MR. BAJAJ: Okay. Understood.
`JUDGE KENNY: Okay.
`MR. BAJAJ: So, as Your Honor indicated, the Petitioner has filed
`objections to slides 2 through 14, 16 and 39 of Patent Owner's demonstrative
`exhibits, those slides contain argument and evidence that were not in the
`Patent Owner's response, and as such those slides and any argument from
`those slides we feel should be stricken.
`JUDGE KENNY: So, maybe you can clarify. I take it from your
`summation that the Patent Owner doesn’t dispute that slides 2 through 14
`contain information that wasn’t in the Patent Owner's response; right?
`MR. BAJAJ: That's correct, Your Honor. We had a meet and
`conferred with the Opposing Counsel, and they agreed that those slides
`contain, as I said, argument and evidence that was not in Patent Owner
`response.
`JUDGE KENNY: All right. But slides 16 and 39, I take it, they do
`not agree on that point?
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`MR. BAJAJ: Correct. They do not agree on that point.
`JUDGE KENNY: Okay. Can you tell me why you believe slides 16
`and 39 contain arguments that were not in the Patent Owner's response?
`MR. BAJAJ: Certainly, Your Honor. Sorry, I didn’t mean interrupt
`you. So on slide 36 -- I'm sorry -- slide 16, the argument that the purpose of
`the invention was to execute tokens without change, that's not an argument
`that I saw in the quoted or the referred-to portions of the record. And then as
`to slide 39, that argument, that portion of Kari was not cited by the Patent
`Owner in its response at any point.
`So, should I start, Your Honor?
`JUDGE KENNY: Sure.
`MR. BAJAJ: So, turning to slide 2, we reproduced challenged claim
`19 of the 748 Patent, which we treated as representative in the petition.
`Claim 19 is the method citing the number of steps that include -- excuse me -
`- receiving a questionnaire from an originating computer, collecting
`responses to the questionnaire from a user, and transmitting those responses.
`And of particular note to the party's arguments and disputes, claim 19
`recites that the receiving device is a hand-held computing device with an
`integral GPS, and that the questionnaire includes device-independent tokens.
`So turning to slide 3, Figure 1 depicts a server 24 that communicates
`with hand-held computers 28 through 32, the specification notes that hand-
`held computers may be different types of devices. And one example, the
`specification describes that the server and computers 28 through 32
`communicate using the Internet.
`So, turning to slide 4 on the next few slides we've presented a quick
`overview of the prior art that was cited in the petition. On slide 4 the Kari
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`reference teaches most of the limitations of the challenged claims. Kari
`describes the system with a hand-held computing device, like the search
`terminal one, depicted in Figure 2 that communicates over the Internet with
`a connection server, Element 3.
`The connection server presents a world-wide web page to the user.
`Now, Kari is a patent assigned to Nokia, and as such lists the Nokia 9000
`Communicator as an example of its search terminal. An example of Kari's
`world-wide web page is provided on the right side of slide 4 in Kari's Figure
`7. That world-wide web page accepts user entry for multiple form fields,
`and the data entered by the user is then received at the connection server.
`Turning to slide 5, we've also cited the teachings of Darnell, which is
`a reference book about, HTML, the standard language of the Internet.
`Darnell describes HTML as a platform independent means of marking data
`for interchange, and the person of skill in the art would have recognized that
`HTML was developed so that the same webpage could be received and
`displayed on multiple different types of computing devices.
`One particular aspect of Darnell that we've cited is: Darnell's
`teachings are forms, but the form of Kari. And I would note for the record
`that the public availability of Darnell was established in the petition, and was
`not challenged here.
`So, turning to slide 6, as I also mentioned earlier, the claims recite a
`hand-held computing device with an integral GPS.
`And as shown in Figure 3 of Chan, and as explained in its description,
`Chan describes a computer system with a global positioning system receiver
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`And finally, turning to slide 7, Todd teaches a survey system that
`presents a series of questions and stores answers to those questions within
`the device, and then transmits the answers.
`So, if we turn to slide 8, as the Board recognized in the institution
`decision, Petitioner asserted that claims 16 through 19, 21 and 22 were
`unpatentable as obvious over the combined teachings of the references we
`just detailed. That's the only ground at issue here.
`So turning to slide 9, we have a brief overview of the arguments
`presented today.
`And turning to slide 10, we'll first discuss a brief overview of how the
`cited prior art teaches the limitations of the claims. Again, we'll focus on
`slide -- I'm sorry -- claim 19 presented on this slide, but the arguments are
`also relevant to independent claims 16 and 21.
`So, turning to slide 11, the first limitation of claim 19, referred to as
`limitation 19.1 in the petition, recites establishing communications between
`a hand-held computing device in an originating computer, and that the hand-
`held device has a GPS integral there too.
`Kari teaches establishing communications, and in particular Kari
`teaches that the search terminal one, which is a PDA, communicates over the
`network two to the server, to the connection server three. And Kari also
`describes that one device suitable for the search terminal is Nokia 9000
`Communicator.
`Patent Owner would like to limit Kari to that implementation, but as
`Dr. Reddy testified in his reply declaration, a person of skill in the art would
`not have limited Kari to the Nokia 9000, but rather, would have considered
`the characteristics of similar devices available at the time of the 748 Patent.
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`And Kari teaches that the search terminal can use satellite location
`means, like GPS, but arguably does not explicitly disclose that the GPS is
`integral to the search terminal as recited. The GPS equipment integral to the
`computing device, was well known at the time of the 748 Patent as shown in
`the evidence presented both in the petition and in the reply.
`For example, the Petitioner and Dr. Reddy cite Twitchell and Darnell
`736, as evidence that it was known to incorporate a GPS into a mobile
`device. And to the extent Kari does not explicitly teach an integral GPS,
`Chan explicitly teaches a GPS receiver integral to a computing device, and
`as supported by Dr. Reddy's analysis.
`Dr. Reddy also persuasively explains the motivation for a person of
`skill to incorporate GPS receivers or GPS equipment integral to a hand-held
`computing device.
`And Patent Owner appears to argue that a person of skill in the art
`would not have combined the teachings of Kari and Chan readily because
`they are not relevant to creating a questionnaire that comprises device-
`independent tokens. But the test for analogous art is not that narrow. If art
`is from the same field of endeavor it is analogous, and Dr. Reddy testified in
`the petition and in the reply that each of the prior art references are
`analogous art to the 748 Patent. For example, here, Chan relates to a
`location-based query piece, and the 748 Patent relates to the same field in its
`detailing of GPS information.
`So, turning to slide 12, at limitation 19.2, claim 19 recites, "Receiving
`transmission of a tokenized questionnaire that the questionnaire includes a
`question requesting location, and that the questionnaire includes device-
`independent tokens." So, if we unpack that a bit, and we've address this in
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`some limitations in the petition, Kari teaches receiving a questionnaire.
`Kari's questionnaire is shown in Figure 7, which is described in the
`specification as a query form. Kari also describes how the query form
`requests location information.
`Darnell was cited as teaching the tokenized aspect of the claim -- of
`the limitation. I'm sorry. The Board adopted Petitioner's construction of
`token in the institution decision to be a distinguishable unit of a program,
`such an index, an instruction or a command that can represent something
`else such a question, answer, or operation. Patent Owner did not challenge
`that interpretation in its response.
`Darnell describes how HTML uses tags, which a person of skill in the
`art would have understood to meet the construction of a token. Darnell was
`also cited to teach the device independent aspect of the limitation, as Darnell
`describes HTML, which is a platform-independent means of marking data
`for interchange.
`During prosecution of the 748 Patent the Examiner also found that
`HTML was device-independent and that Patent Owner never challenged that
`assertion. Here, too, Patent Owner has not challenged that HTML is device
`independent.
`Because Kari describes that its survey is a world-wide web page, a
`person of skill in the art would have recognized that it was written in HTML,
`Darnell is an HTML reference book and a person of skill would have
`recognized a motivation to combine the teachings of the references.
`Later in my presentation, I'll get to Patent Owner's alleged issue with
`the version of HTML described by Darnell, but I'll note that Kari and
`Darnell are not limited to any HTML version.
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`So turning to slide 13, claim 19 also recites storing within the
`computing device the user's responses. This is limitation 19.6 in the petition
`which is taught by Kari and Todd. Kari describes that it forms a query
`message with the users' responses which a person of skill in the art would
`have understood is temporarily stored, for example, in random access
`memory of a computing device.
`But to the extent that it's not an explicit disclosure of storing, Todd
`explicitly teaches storing user responses to a survey, and a person of skill in
`the art would again have found it obvious to combine these two references.
`For example, a person of skill would have understood that Todd
`suggests storing answers when conditions for transmission are not met,
`which is a condition explicitly described by Kari. The 748 Patent also
`acknowledges that it was known to store data entered by a user.
`Like the other references, Patent Owner argues that person of skill in
`the art wouldn't have combined Todd because it's, allegedly, again not
`directed to the same problem as the 748 Patent, but Todd discusses
`questionnaires and surveys much like the 748 Patent discusses
`questionnaires.
`So if we turn to slides 14 and 15, we reproduced independent claims
`16 and 21, which correspond in large part to claim 19. The differences
`between these claims are detailed in the petition, and Patent Owner did not
`specifically challenge any limitations of these claims.
`So, if we'll turn to slide 16, we have our summary slide again, and
`we'll now turn to some specific points raised in our reply responsive to the
`Patent Owner's response.
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`Turning to slide 17, the Patent Owner first argues that a person of skill
`in the art would not have combined Kari and Darnell, and that argument fails
`for a number of reasons: as shown on this slide Kari describes that its blank
`form is designed as a world-wide web page, Kari describes that the user uses
`a world-wide web browser in its methods.
`The petition and Dr. Reddy established that a person of skill in the art
`would have understood Kari's world-wide web page would have been
`written in HTML, the standard language of the world-wide web.
`Now, Kari was filed in 1997 and discloses the Nokia 9000
`Communicator as an example of its search terminal, the hand-held
`computing device. Patent Owner takes that isolated statement and would
`like the Board to limit Kari to that implementation at that period in time.
`And so as a result Patent Owner would have the Board limit the Nokia 9000
`and Kari to supporting only HTML 2.
`So, Patent Owner's argument is not that Kari's web page isn't written
`in HTML, it admits that Kari's web page would be written in HTML. Patent
`Owner also, again doesn’t argue that HTML is not device independent,
`rather, Patent Owner simply argues that Kari's example device allegedly
`didn’t support the version of HTML described in Darnell.
`And just to simplify that a little bit more, Patent Owner says that
`Kari's description of a device that supported HTML 2, means that it's
`somehow incompatible with Darnell, which is called HTML 4 Unleashed.
`Patent Owner takes that a little bit further, and alleges that a person of
`skill in the art, in the possession of Kari, wouldn't look to the teachings of
`Darnell. But there are both legal and technical issues with that line of
`argument.
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`So, turning to slide 18, we've reproduced the part of Kari that the
`Patent Owner takes out of context to make its arguments. But as I
`mentioned that argument fails for technical reasons.
`The Petitioner relied on Darnell's description of forms as teaching the
`recited device-independent tokens. I note here that Darnell was published in
`1997, the same year as Kari's effective date. Darnell also explains the
`evolution of HTML and describes how the HTML 1.0 specification
`incorporated form tags which would have taught device-independent tokens
`as recited.
`And as Dr. Reddy testified, HTML 1.0 was incorporated into HTML
`2, the HTML 2 specification likewise mentions forms. Thus, even if we
`were to limit Kari to HTML 2, the teachings of HTML forms and HTML
`device independence would still be applicable.
`And as the Board is also well aware, prior art teachings are evaluated
`at the time of the alleged invention, not at the time of the prior art. Patent
`Owner's argument to argue against Kari in 1997 is not more than a
`distraction. In 2002, at the priority date of the 748 Patent, HTML 4 was well
`known, and devices that supported HTML 4 were commonplace.
`In fact, a person of skill in the art would have recognized that HTML
`4 was being used on mobile devices as the HTML 4.0 now explicitly
`teaches, and that's Exhibit 1023, a portion of which is reproduced on slide
`18.
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`Thus whether you take Patent Owner's argument, and artificially limit
`Kari, or if Kari is properly evaluated, according to the law, a person of skill
`in the art would have combined Kari and Darnell to render obvious the site
`of limitations.
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`So turning to slide 19; again we have our summary slide, and here
`we'll address Patent Owner's next argument about GPS information.
`On slide 20, Patent Owner argues that Kari's browser could not read
`GPS information, and cites no evidence other than its expert's to support its
`conclusion. But this argument, like the majority of Patent Owner's
`arguments, is based on an overly narrow interpretation of the claims. The
`dispute essentially boils down to this: Patent Owner reads the claim as
`requiring complete device independence and the complete absence of
`device-dependent software.
`The Petitioner's interpretation then, we would submit the correct
`interpretation is that the use of device-dependent software is encompassed
`by the claims.
`So, again, Patent Owner's argument is not that the prior art doesn’t
`read location identifying information, but that the prior art doesn’t do so in a
`device-independent manner. But that's not required by the claims. The
`claim simply recites that the questionnaire must include device-independent
`tokens, which is satisfied by Kari and Darnell's teaching of HTML and
`forms.
`But aside from that recitation of device independence, nothing in the
`claims, and certainly nothing in the specification, requires the remainder of
`the claim to be performed in a device-independent manner. It's simply not
`consistent with the broadest reasonable interpretation.
`So, reading GPS information as in this argument and this limitation, it
`does not require performance in a device-independent manner. Now, I
`mentioned that Patent Owner only supported -- cites its expert as supporting
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`this contention, and that's because Kari is explicitly teaching that its browser
`reads GPS information.
`Kari states the application program reads automatically the location --
`the information on the location, that's at the top of slide 20. And then Kari
`also states that one application program, which has recently gained
`popularity, is the web browser. So, Kari is teaching to a person of skill in
`the art that the browser reads GPS information.
`Patent Owner's argument, and I quote here from the Patent Owner's
`response at 13, is that "An HTML form and a standard browser could not
`read GPS locations from a device such as a GPS receiver."
`Again, here, Patent Owner is conflating multiple limitations of the
`claim. The claim simply recites: that using said GPS to automatically obtain
`said location identifying information in response to set at least one question
`that requests location information.
`So, the use of the GPS does not need to be device-independent. And
`as we'll see shortly, a plain reading of the claim indicates that the question
`itself that requests location identifying information doesn’t even need to be
`device-independent. So, even if Kari required device-dependent actions to
`obtain location information, it would still teach the limitations of the claim.
`So turning to slide 21, again with our summary slide, the primary
`problem with Patent Owner's argument is that they're reading the claim too
`narrowly.
`If we turn to slide 22, none of the claims here require the absence of
`device-dependent software or instructions. And none of the claims exclude
`that. For example, each of the claims is broad enough to encompass that
`some of the questionnaire is device dependent.
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`So, we've reproduced on the slide a portion of claim 19, which recites
`that the tokenized questionnaire includes at last one question requesting
`location information, and the tokenized questionnaire comprises a plurality
`of device-independent tokens. So, as long as device-independent tokens are
`used in the questionnaire the claim limitation is satisfied.
`The claim does not require the question requesting location
`information to be device-independent, and nor does the claim require the
`tokenized questionnaire to be solely comprised of device-independent
`tokens.
`And further, as Dr. Reddy testified, a person a person of skill in the art
`would have understood that even though the questionnaire might be
`comprised of device-independent tokens, they are necessarily device-
`dependent actions that would take place on any device. And as Dr. Reddy
`explained, the same web page could be viewed by two different browsers
`running on two different devices and two different platforms, but each
`device and each browser may interpret the device-independent web page
`differently. That would be still teaching the limitations of this claim.
`JUDGE KENNY: Counsel, let me follow up on this. So, it's your
`position that the tokenized questionnaire can have both device-specific
`tokens as well as device-independent tokens in it?
`MR. BAJAJ: That's within the scope of the claim, Your Honor,
`because it uses the word "comprising" it's open ended. So as long as it does
`include some device-independent tokens, this limitation is met.
`JUDGE KENNY: Okay. But I mean -- All right. So, if we don't
`interpret it that way, and we think that they should all be device-independent
`tokens, does your case fall apart?
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`MR. BAJAJ: It does not fall apart, Your Honor. That would not be
`consistent with the specification. The specification describes that the
`device-independent nature of the web page -- or of the questionnaire,
`requires an operating instruction system at a different level, and that
`operating instruction system that would be device-dependent.
`JUDGE KENNY: Yes. I understand that, but I mean, we're talking
`about the tokenized questionnaire itself. In other words, I understand that
`you could say that maybe by tokenized -- the tokens need to be interpreted
`into a device-specific software, but I think what you're saying is that the
`questionnaire with its tokens, some will be device-independent, and some
`will be device-dependent.
`MR. BAJAJ: Right.
`JUDGE KENNY: Okay, so --
`MR. BAJAJ: I think I understand you're-- I'm sorry. Go ahead.
`JUDGE KENNY: I mean, and maybe I'm not quite following how
`that was covered in the petition.
`MR. BAJAJ: So, I think I understand your question a little bit clearer
`now. So, in the petition, the proposed combination would use Kari's world-
`wide web page written in HTML as taught by Darnell. That entire
`questionnaire would be device-independent, because it's written in HTML
`which is device-independent.
`JUDGE KENNY: Okay.
`MR. BAJAJ: So, in our proposed combination the entirety of the
`questionnaire would be device-independent tokens.
`JUDGE KENNY: Okay. And then where do we get to the device-
`dependent part?
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`MR. BAJAJ: The device-dependent part, it's essentially the remainder
`of the claim does not require device independence, so what happens when
`there's -- you know, establishing communications that does not need to be
`performed in a device-independent manner.
`JUDGE KENNY: So in other words, what you're talking about when
`you execute this plurality of tokens, that at that point you can get to --
`MR. BAJAJ: Device-dependent.
`JUDGE KENNY: -- device dependence. So, this is like in
`interpreting, you're interpreting it from device-independent form to a device-
`dependent form? Is that the idea?
`MR. BAJAJ: Correct, Your Honor. It's providing a language or a
`construct that's device-independent so that multiple browsers, multiple
`devices that, you know, comply with the standard can all read that
`information, but what they do after they’ve read that information, that may
`be dependent on the device itself.
`For example, Your Honor, Judge Kenny, you could be reviewing a
`web page in Firefox, and Judge McShane could be reviewing it in Safari, the
`same web page is device-independent because it's written in HTML, but
`each browser renders it just slightly differently, because each browser may
`have its own quirks, its own programming. But that does not change that the
`HTML web page itself is device-independent.
`JUDGE KENNY: Okay. So, looking back on the claims and taking
`one of the claims, claim 19, for example, on slide two.
`MR. BAJAJ: Sure.
`JUDGE KENNY: So the tokenized -- what you're reading is the
`tokenized questionnaire is coming through -- is written in HTML, right?
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`MR. BAJAJ: Correct.
`JUDGE KENNY: And so that's -- and that's device-independent?
`MR. BAJAJ: Correct, Your Honor.
`JUDGE KENNY: And then at some point when we get down there,
`and assume it's in the executing steps that then we are going to get into
`things, translating it to the device-dependent software?
`MR. BAJAJ: Correct. You may. It's not explicitly recited one way
`or another, but it's open to both occurring.
`JUDGE KENNY: Okay. Well, I mean in your particular proposed
`modification, there. I mean, in other words, we've got a -- step B isn't
`specifically limited to HTML either, but you're using HTML to satisfy step
`B of claim 19, then where -- you know, where do we get to the specific
`application for reading GPS in this claim? You know, where does that show
`in this claim?
`MR. BAJAJ: So that shows up in limitation D3, so the computing
`device perceives that the HTML form, it renders it, it executes at least a
`portion of the tokens, and Kari rendered the web page on the device, the user
`fills out the information, and then it uses -- the browser uses the GPS to pull
`location information.
`JUDGE KENNY: And so just next step, D3 can be done with a
`device-dependent software?
`MR. BAJAJ: Correct, Your Honor.
`JUDGE KENNY: And that would be the GPS application software
`that Kari is discussing?
`MR. BAJAJ: Exactly.
`JUDGE KENNY: Okay.
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`MR. BAJAJ: So, I believe we were on slide 22. Did I answer all of
`your questions, Your Honor?
`JUDGE KENNY: Yeah. Please proceed.
`MR. BAJAJ: Okay, great. So turning to slide 23, our last issue is one
`of claim construction, and if we turn to slide 24: Patent Owner proposes that
`the term "loosely networked" needs to be construed, and it alleges that all
`claims must be construed to encompass the "loosely networked" concept.
`But it doesn’t propose a construction of the term, and more importantly, no
`claim cites or requires a loosely-networked connection, and thus the claim
`construction is not relevant to the claims, and not relevant to the analysis.
`JUDGE KENNY: Is it also true that none of the claims recite
`“networked,” of the challenged claims?
`MR. BAJAJ: Correct, Your Honor. And so I already addressed the
`objections. If there aren't any other questions on the objections, I'll reserve
`the remainder of my time for rebuttal.
`JUDGE KENNY: Okay.
`MR. BAJAJ: Thank you, Your Honors.
`JUDGE KENNY: All right. Counsel for Patent Owner?
`MR. WATT: Your Honors, we'll begin by having my Co-Counsel
`here address the objections to, I think it was slides 2 to 13, or 2 to 14, and --
`(Off-the-record discussion)
`MR. ELLIS: Your Honors, my name is Michael Ellis on behalf of
`Patent Owner, Fall Line. And I just briefly want to address the objections to
`slides 2 through 14 in our demonstratives. And our understanding is that the
`Petitioner has objected that this is a new argument, and we've cited the fact
`that this is not a new argument, we raised this in the preliminary response on
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`pages 28 through 33. And so our initial response at this point is that this
`isn't new, this is something we raised in our first paper, and continue to raise
`it at this point.
`JUDGE KENNY: But Counsel, you're aware that arguments in
`evidence that were presented in the preliminary response, and that were not
`carried over into the responsewere waived, I mean that was also in the
`scheduling order.
`MR. ELLIS: Your Honor, respectfully, in the scheduling order, and
`our understanding is that arguments, and I'm reading from page 3, just our
`interpretation of it, Patent Owner's caution that any arguments for
`patentability not raised in the response will be deemed waived. And so our
`first response to the waiver argument, which again, it was unclear if the
`argument was waiver or if it was due -- that if there was a new argument.
`If it's a waiver argument, the real party-in-interest doesn’t go to
`patentabilit
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