We're going to have a surprise. Sure. Yeah. Oh, my God. Come on. What? Come on. Can I? Okay. We're going to have a surprise. I think that was your
... Okay. I think that was your... Okay. We're going to have a surprise
. Okay. I think that was your... Okay, I'll final case this morning is number 15-508 in Ray Ascoff, Mr. Greco. Thank you, Your Honor. Please the court, Joseph Grecoff for the petitioner, Keith G
. Ascoff. If I may, I'd like to start off with the automatic call hold element, which is present in most of the claims that are an issue here. And I believe that the briefing really focuses this dispute on the statement at page A4 of the record, which is the board's decision, where the board quotes and upholds the examiner's finding of obviousness. And their, and the board concludes that the malloc reference would lead one of ordinary skill in the art to see that instead of having the user manually handle each call, it is more efficient to have the CIR manager to be configured in advance and handle what call accordingly. I think that's really where we're focused in this case for the most part. And the malloc disclose that. Under that option under malloc, aren't the calls handled without action by the user when the communication is received? Well, there's only one disclosure in malloc of an automatic message and that's this is in the record at A236 paragraph 277. And malloc teaches call forwarding out of the office and so on, right? Only as only as a manual option
. Only as a manual option. But no, you can set it in advance to do that, right? No? No. The only thing that malloc teaches as an automatic response is at 236 paragraph 277, where it says you can have automatically responding to the call with a standard response such as a pre-recorded message. The rest of those options in malloc are were called action features. And those are all manual. In fact, if you look at at page of a 210 of the record, figure 10 of malloc shows buttons for those. And so what happens when the call comes in is the user has got to select one of those. That's the only thing malloc discloses
. Now, what about this one feature that I just alluded to, the automatic responding to the call with a standard response? That's sort of like a do not disturb message. And that makes sense in terms of malloc because what malloc is directed towards is this, it's called a CIR manager, communication information resource manager. And the example malloc gives is you have somebody in the office who's on a conference call. And what this CIR manager does is when other, what other calls come in, it gives the person, the user who's on the conference call, information about each of the calls coming in. For example, name telephone number or whether you even have an appointment scheduled with that person. So at that point, then the user has the option of saying, oh, here's a call coming in. What do I want to do with it at this point? And there's five options, manual options that are given. And these are at, again, you can see them at that figure 10, but also at 8233 of the record paragraph 253
. The user can ignore the call, take the call, forward the call to voice mail, play an old on hold message to the call. That's what we're really dealing with here. Or link the call into an ongoing conference call. So you can see that the concept of malloc is enabling the user to be able to make a decision at the time the call comes in with respect to what to do with it. And one of those might be to place it on hold. Now, this is the complete opposite of Ask Off's invention because the concept that Mr. Ask Off had was the person is in the meeting. He's dealing with people who are important people that he doesn't want to disturb if a call comes in by having a pull of the thin antivis, pull the phone out of his pocket and hit hold or whatever
. So, but he knows that when he's in this meeting, an important call is going to come in. Like, for example, with CEO is going to call him. And he's got to take that call, but he doesn't want to disturb the meeting. So he does this automatic preset to put the call on hold with the other element that we can also talk about, which is the low volume indication. So then he gets the indication that there's a call being put on hold and he can gracefully get out of the meeting. So that has nothing to do with malloc. Malloc is just a completely different situation. Again, the only automatic disclosure, the only automatic preset for malloc is this just pre-recorded message that effectively is like, I'm in the conference call
. I don't want to hear anything. I don't want to know about all this other stuff coming in. So, once we reject that and we hold that the board had substantial evidence to support its interpretation, malloc as describing the ability to set these features and have these things done automatically. Is that the end of the case? No. Because if that's the case, you still have to combine malloc with Che. Because malloc is not a cell phone. It's not a mobile phone. Che is the mobile phone, the cell phone that has the automatic voice hold feature
. In other words, with Che, the concept with Che was you have your cell phone and a call comes in and you want to take the call that your hands aren't free. And so the concept of Che is, is you use your voice, hold. You say, hold and the call will be placed on hold. Now again, that's completely different than Ask Off. Because what Ask Off is trying to do is to keep quiet not to disturb. Che is perfectly fine with using a loud voice command. So Che teaches a way from Ask Off. There's no reason to combine Che with malloc
. So even if you were to find that malloc explicitly teaches this automatic pre-setting of hold, it's not a cell phone. And so you still would have to combine it with Che. Che teaches a way so that combination shouldn't be made. So that, and there's a waiver argument as to Che. I don't know if you would like me to address that now, but I can do that if you'd like or wait for a bottle. So I'm going to hear about that. So I'll address it. Che is, where our argument on Che is, is it teaches a way. And the director didn't, didn't take that argument on it's merits because Jake clearly does teach a way. But the, the director's argument is that, that we didn't raise that particular argument before the board. And so we shouldn't be able to raise it here. And our response to that is we raise the issue. We raise the issue that there's no reason to modify Che for automatic hold. There's no reason to do it. There's no reason to combine it with malloc. So at least under the court's case law on waiver, for example, the Harris case and the interactive gift exchange case, as long as we raise the issue, the basic concept below, we can make additional arguments on appeal
. And the director didn't, didn't take that argument on it's merits because Jake clearly does teach a way. But the, the director's argument is that, that we didn't raise that particular argument before the board. And so we shouldn't be able to raise it here. And our response to that is we raise the issue. We raise the issue that there's no reason to modify Che for automatic hold. There's no reason to do it. There's no reason to combine it with malloc. So at least under the court's case law on waiver, for example, the Harris case and the interactive gift exchange case, as long as we raise the issue, the basic concept below, we can make additional arguments on appeal. And so in this situation, we've raised the issue. And the additional argument is, is that it teaches a way. So you shouldn't have the combination. Now, if you're, if you're, if you're on to have any questions on that element, I'm going to move to the other element. The other element is the low volume indication. So part of the, the invention is you set the, you set the, the, the cell phone to automatic hold. And then this element is when that happens, the phone automatically will set the itself to a low volume indication, which is in keeping with what I described before. In other words, when the call comes in, it's going to be placed on hold
. And so in this situation, we've raised the issue. And the additional argument is, is that it teaches a way. So you shouldn't have the combination. Now, if you're, if you're, if you're on to have any questions on that element, I'm going to move to the other element. The other element is the low volume indication. So part of the, the invention is you set the, you set the, the, the cell phone to automatic hold. And then this element is when that happens, the phone automatically will set the itself to a low volume indication, which is in keeping with what I described before. In other words, when the call comes in, it's going to be placed on hold. And you're going to get a low volume indication so you don't disturb the meeting. So it either gives you an automatic low, low volume indication or it reminds you to set that. Now, the only prior art that the board relied on with respect to teaching that with chow, different from cha, this is chow. And all chow is, is a situation where you've got like a centric system with, you, that you could use cell phones, knows wireless phones with. And it just simply says, well, with, with a cell phone, you can have a ringer or a low vibration or whatever, but it has nothing to do with automatically having the low volume indication set when you set it for some type of a hole. So that's, that's the distinction there. I asked to, to, to keep about five minutes for a bottle. I don't know if your owners have any questions I can address them now otherwise
. And you're going to get a low volume indication so you don't disturb the meeting. So it either gives you an automatic low, low volume indication or it reminds you to set that. Now, the only prior art that the board relied on with respect to teaching that with chow, different from cha, this is chow. And all chow is, is a situation where you've got like a centric system with, you, that you could use cell phones, knows wireless phones with. And it just simply says, well, with, with a cell phone, you can have a ringer or a low vibration or whatever, but it has nothing to do with automatically having the low volume indication set when you set it for some type of a hole. So that's, that's the distinction there. I asked to, to, to keep about five minutes for a bottle. I don't know if your owners have any questions I can address them now otherwise. Okay, the only one other quick point I just wanted to make is, you know, this invention, Mr. Ascoff applied for this in 2004, originally with a, with a, a, a provisional and then followed it up in 2005. So to, to some degree, what the board has done is really, is really use hindsight. And we should keep in mind that this, this thing was, was filed back at, at a time when the cell phone industry and technology was much less advanced than it is today. Thank you. Okay, thank you, Mr. Gregg. Well, thank you, Your Honor
. Okay, the only one other quick point I just wanted to make is, you know, this invention, Mr. Ascoff applied for this in 2004, originally with a, with a, a, a provisional and then followed it up in 2005. So to, to some degree, what the board has done is really, is really use hindsight. And we should keep in mind that this, this thing was, was filed back at, at a time when the cell phone industry and technology was much less advanced than it is today. Thank you. Okay, thank you, Mr. Gregg. Well, thank you, Your Honor. It was a may please the Court. Malik has substantial evidence, respectfully inviting the Court's attention to paragraph 277 of Malik. Malik has many teachings about how the user has choices for call handling to automatically respond to the call. The word automatic is expressly used there. Malik talks about responding to the call with, with a message with a pre-recorded message. And then later on, not too much down, Malik says, on hold message. So clearly that's a nice suggestion that both the board and the examiner had a reasonable basis to rely on as substantial evidence. Maybe some other rationale might be plausible throughout other parts of the record, but this rationale is clearly plausible and is substantial evidence supporting the board's motivation, finding that using an automatic feature, which Malik says, is a benefit and Jay and Malik already hold calls
. It was a may please the Court. Malik has substantial evidence, respectfully inviting the Court's attention to paragraph 277 of Malik. Malik has many teachings about how the user has choices for call handling to automatically respond to the call. The word automatic is expressly used there. Malik talks about responding to the call with, with a message with a pre-recorded message. And then later on, not too much down, Malik says, on hold message. So clearly that's a nice suggestion that both the board and the examiner had a reasonable basis to rely on as substantial evidence. Maybe some other rationale might be plausible throughout other parts of the record, but this rationale is clearly plausible and is substantial evidence supporting the board's motivation, finding that using an automatic feature, which Malik says, is a benefit and Jay and Malik already hold calls. So all that's missing is to preset calls to hold. That's claim one and we submit that claim is very affirmable, should be affirmed. Claim two is the only other claim adds a ringer that has low volume and chow discloses low volume vibration in call hold settings. A skilled phonemaker would be motivated to be quiet. Unless the court has any questions, I would be happy to take my seat. Thank you, Your Honours. Thank you, Mr. Freglum
. So all that's missing is to preset calls to hold. That's claim one and we submit that claim is very affirmable, should be affirmed. Claim two is the only other claim adds a ringer that has low volume and chow discloses low volume vibration in call hold settings. A skilled phonemaker would be motivated to be quiet. Unless the court has any questions, I would be happy to take my seat. Thank you, Your Honours. Thank you, Mr. Freglum. Yeah, I'm just going to go back to that Herr Rift 277 in Malik and explain why the word automatically can only reference the first clause. So in this is at page A236 of the record. Says the user has choices with respect to handling of the communication itself. The choices for call handling may include automatically responding to the call with a standard response such as a pre-recorded message that we agree on, but that's the only automatic part. The word automatically doesn't appear again in that paragraph. So if you go on to the other parts of that sentence that are separated by selling code, responding to the message with a selected response, such as a response selected from a variety of pre-recorded messages, well, you can't automatically have that. I mean, if it's going to be a selected response, it's going to have to be selected at the time call, at the time it comes in. Otherwise, it's the same thing as the first clause
. Yeah, I'm just going to go back to that Herr Rift 277 in Malik and explain why the word automatically can only reference the first clause. So in this is at page A236 of the record. Says the user has choices with respect to handling of the communication itself. The choices for call handling may include automatically responding to the call with a standard response such as a pre-recorded message that we agree on, but that's the only automatic part. The word automatically doesn't appear again in that paragraph. So if you go on to the other parts of that sentence that are separated by selling code, responding to the message with a selected response, such as a response selected from a variety of pre-recorded messages, well, you can't automatically have that. I mean, if it's going to be a selected response, it's going to have to be selected at the time call, at the time it comes in. Otherwise, it's the same thing as the first clause. Going on, ignoring the call, well, again, you can't automatically ignore the call unless it's you're just talking about the same thing as the first response, which is setting a pre-recorded message. Taking the call, when you can't automatically take the call, because if you're on a conference call, when the whole point of this thing is to be able to know whether you want to take the call if it comes in. So you can't automatically take the call. So you can see that the word automatically doesn't modify all the different options. Then the next word, the next thing is following the call to voicemail. Well, again, unless you're on a do not disturb, you can't automatically do that because you don't know what the call is until it comes in. And then finally, adding a call to a conference call. I mean, clearly, you can't have an automatic add to a conference call before even know who it is
. Going on, ignoring the call, well, again, you can't automatically ignore the call unless it's you're just talking about the same thing as the first response, which is setting a pre-recorded message. Taking the call, when you can't automatically take the call, because if you're on a conference call, when the whole point of this thing is to be able to know whether you want to take the call if it comes in. So you can't automatically take the call. So you can see that the word automatically doesn't modify all the different options. Then the next word, the next thing is following the call to voicemail. Well, again, unless you're on a do not disturb, you can't automatically do that because you don't know what the call is until it comes in. And then finally, adding a call to a conference call. I mean, clearly, you can't have an automatic add to a conference call before even know who it is. And again, so it's not only the syntax here, but again, if you look at what I've cited before, all these other actions here, besides that first one we talked about, the pre-recorded message, they're all called action features. And they're all explicitly described as what the user does when the call comes in. So this has just has nothing at all to do with Mr. Askov's question. I think that's all I need to say. Okay. Thank you, Mr. Brackel
. Okay, the case is submitted. We thank both counsel. Let includes our session for this morning