Good morning everyone. The panel has before it's four cases. Two of them are being submitted without oral argument on the briefs later today. They are a appeal number 07-3048 Shelton versus Merritt System Protection Board and a appeal number 07-3114 Lynch versus Department of the Army. On the argument list we have two cases and we'll hear argument first in appeal number 06-1599 in Ray, Trans-Texas holding. Mr. Parker, good morning. Welcome back. Good morning Your Honor. Please proceed. Please, this board. This Trans-Texas contention that the examiner failed to set forth substantial evidence in support of a prima facioobusness of the properly construed claims in this case. We respect to the construction of the claims. We contend that the board aired and not finding that it was bound by the Markham determination made by the Western District of Texas and even if this court finds that the PTO was not so bound we contend that the examiner and the board nevertheless aired as a matter of law and its claim construction. If you look at the board's claim construction, the board's review of the claims. There's no such thing as non-mutual collateral stop-align to the government. Where are that? Is it spring court case told and does it? No, Your Honor. I'm not familiar with that case
. Isn't there a second problem with thing that Judge Sparks claim construction should bind the board that there was never a final judgment in the case before Judge Sparks. So I understand that the case was settled. So there was an initial ruling but no judgment. So how can there be collateral stop-align when there's no final judgment? Your Honor, with respect to that question which was the primary issue on the collateral stop-align with wheat down the collateral stop-align issue. This court has held, as noted, in the RF patents case that indeed the collateral stop-align could have put a tax and the RF patents case, which I believe your Honor authored. In the RF patents case, excuse me, I had to not speak to you basically, RF Delaware case. I apologize, let's get that confused with the TMP patents case. In the RF Delaware case, that case dealt with a claim construction that was in a summary judgment motion. And the court there refused to find that there was a collateral stop-align. That case basically settled after some judgment. This court refused to find that in the context of that summary judgment that there was collateral stop-align. However, the court did note in that case that partial summary judgment could be sufficiently final for issue preclusion, even where the case settled if interpretations were issued after oral argument and there was a final judgment and a settlement certification was issued. It found that in that particular case, the court found that there was simply not sufficient oral argument on the claim construction issue in that summary judgment motion. I don't understand your answer. Are you saying that final judgment is not a prerequisite of a stop-align? Well, there was a final judgment in this case, you're on. There was a dismissal with practice and a final judgment, even that I've got it in the record, I'd be happy to point you to it. But there was a final judgment error
. But wasn't that the key? There was a final judgment in that you talked still talking about our answers. Yes, yes. In the RF Delaware case, the final judgment. The fact that there was a settlement, your honor. The fact that that there was oral argument could not have met. Oral argument isn't necessary. Oppen isn't even helpful when in most cases we don't even have it. Both in the RF Delaware case and in the trans-texas case, there was a final judgment entered. That has to be the key, not oral argument, right? No, your honor. What the, what the, what the, what the, the solicitor, the director's arguing is that because it was a settlement, rather than a, rather than a final judgment on the merits of the validity, for example, of the patents, that that was insufficient to constitute a finality, final judgment for the purposes of the pealability, excuse me, for the purposes of the collateral stock effect of the Markman determination. What even if it was a final judgment? What difference does it make? The board wasn't a party to the original proceedings. Can you cite to me a single case that is applied to the oral? Yes, your honor. I can't. Against, against the party. Yes, your honor. That wasn't a party to the earlier case. What is that? Yes, your honor
. In Ray Freeman. No, that's a, that's a situation in which it was applied against the applicant. Not against the board. Well, no, wait a minute. Now, so you mean that if I went into the board, if I had gone into the patents, Amher, and I had argued to the patents, Amher, that I wasn't bound by that Markman determination. If I had made that simple argument, that would have then mean that the board would be required to apply that. You seem not to be familiar with the general rules of collateral stock. Under the restatement, under every case that I'm aware of, you can't apply collateral stock, against a party who wasn't a party to the earlier proceeding. It's just the general rule. Well, I can also, your honor, to my response to that. First of all, there are cases, and we have brief those cases, where the courts have found that that party's interests were represented in the earlier litigation. Clio, a stock that has been found in those instances. How was a board's interest represented by the other private parties? How can that be? Because, if we cause for, for example, in this instance, Franceses actually argued for the broader interpretation. And we lost. But still, how can the sovereign be said to be represented by the lawyer for a private company? It just seems extreme on its face. I contend that this situation here is on all fours with freedom. And that doesn't matter whether it's applied
. It's not all fours with freedom because it's way in freement, it was applied against the board. I'm sorry. I didn't mean to give it to you but I'll tell you why. In freement the board want thought the claimant's trust was wrong. It wanted to change the claimant's trust. And the board said, we're bound. So, in that instance, the collateral stock was less held against the board. The board wanted to change the claimant's trust. And it felt that it was bound. It was bound by was found to apply it against the applicant, not in the applicant's face. Mr. Parker, the government argues that in any event, judge sparks never gave the construction including the notion of a ratio of one for one and the ratio of one for one seems to be critical to your argument here. So that even if collateral was toppled did apply, it wouldn't get the outcome that you want because one for one was not part of the construction by judge sparks. I'd like to answer that in two ways, Your Honor. First of all, I'd like to address that specifically, but I'd also like this port not to lose side of the fact that we contend that even if collateral was toppled, it doesn't attach that the board constructed the claim wrong and I'd like to get into that, or a little bit. Let me address that question first. France Texas argued, as you can tell, from the Markman order, France Texas argued that it was not a one-to-one correspondence, the defendant argued that it was a one-to-one correspondence
. And as far as I can tell, from Judge Sparks' comments in the last paragraph, that's that. A200. In this last paragraph, he basically says, nor does Plains Paul for a specific definition, other than arguing that does not require any more correlation with the rate inflation. And it looks to me, and it looks to the reader as if the board is saying, we're going to rule, we're going to go with the defendant on this who argued that there was a one-to-one correlation. However, under these circumstances, based on this record, the court is persuaded that the phrase, as a function of the rate inflation, has the same meeting as responsive to the rate inflation, which has been construed as directly responsive to a market indicator, a prior actual inflation. Yes, but my question was, where did Judge Sparks constru the disputed language as requiring a one-for-one ratio? John, that's implied. So we have an implied claim construction, I've never heard of such a thing. He lists all the disputed phrases at the end of his order, and he gives a construction for each disputed phrase. In none of those constructions, can you find the one-for-one ratio idea? Well, he says directly responsive. So let's go and see. Well, directly doesn't necessarily mean one-for-one ratio, I wouldn't think. Well, I'd like to direct this court's attention to how the board dealt with this issue. I'd like to turn to A-Rev, O-13, please. And there the board saying, does the board recognizes that the phrase responsive in the lanes is modified by the term directly. So the board finds that in their ruling. So it's asked for the effect of the use of directly responsive to, instead of responsive to, in the definition, that broadest, reasonable interpretation of the chosen phraseology is that it was meant to emphasize that the calculations of inflation adjustment must be based on the market indicator. Our contention is that that's what responsive means
. The word directly has to mean something in addition to responsive. Otherwise, we would have said responsive means responsive. But we said responsive means directly responsive. So then, at the top of A-Rev, one-for, the board then goes to a dictionary. Well, why is it a directly responsive to an inflation index if I always multiply the inflation index by .9, or I always multiply the inflation index for the successive periods by 1.1, or any other ratio? That would be, we would argue that that is what responsive means. You've got to give some meaning to responsive before you can then give meaning to directly responsive. I would argue that what you've described is responsive. What we've defined is directly responsive. In fact, the definition right here given by the board is, out of American Heritage Dictionary, without anyone or anything intervening. But a .9 or a 1.1 ratio applied against an index measurement doesn't have any intervening figure. It's simple multiplication. It does have an intervening figure. That's your changing rate of inflation by adding an additional multiply
. It's no longer directly responsive to inflation. It's directly responsive to inflation. Plus, the multiplier you decided to add in that you have, through your intervention, have added in as contrary to the definition set forth for directly, relied upon by the board. So, you're, anytime that you add in some figure between the market indicator and what is paid out of the account, you have intervened in that relationship. Well, you intervene as much as I do. You just intervene with 1.0 and say, I can't use .9 or 1.1. You're bringing in a new figure just as much as I. I don't know about .1.0 comes in. You're on another defective one. Part of you. One for one. One for one just means it's directly responsive
. It goes out .002 and the account is adjusted .002. There's no intervening figure that comes between. Why didn't you just amend the claims during the re-examination? You're on because these patents are very close to inspiring and I was a little concerned about intervening rights. How can this fail to be obvious anyway under KS law? Which is just a concept of having an account that are inflation-adjusted both for deposits low on. First of all, will you agree with me, your honor? Well, I want to ask you a question. The fact is your honor that there is a difference between what we're claiming claims are properly construed and what the prior art teaches you to do. The prior art says go up to 2%. Forget about the prior art. That's not the question I'm asking. I'm asking you under TSR. Isn't this perfectly obvious that what you're trying to do, what you're trying to do is to patent a concept of an inflation-adjusted account, which is perfectly obvious over the general knowledge, isn't it? No, you're honor. It's not because one thing, in fact, KSR supports our position. KSR requires that there be specific finding of an apparent reason why one of Skilliny Art would have adjusted, had what have changed the prior art to comport with what is being claimed. There has to be some substantial evidence that one of Skilliny Art would have made that jump from what the prior art is doing to what you're claiming. The prior art went up in 2% increments
. It did that for a specific reason. It went up to 2% increments to provide a barrier to pay out in the account. Our accounts have no such barrier. Do you want to save your remaining? Yes. On the bottom of that. Thank you. Mr. Lamarca. Thank you. Thank you. Inspector, we disagree on this. Do you know about the Mendoza? We don't. I think it doesn't reflect terribly good research. I mean, it would seem to be a pretty important case because at all the non-mutual plow or a stompa can't be applied against the government. I'm sorry, I only did, we don't have the case in our brief. We don't really feel collateral stop will drive this case at all because for a number of reasons it doesn't apply. Even without that case, it doesn't apply
. When you're reading, when you're reading, even directly, the case is distinguishable. If you look at the four factors, it's collateral stop will none of the four factors remain. Not only was it applied against the wrong parties, so that's a number of reasons why we don't apply, but in addition, the issues aren't the same. Although they're both claim construction issues, one was claim construction in freedom about improper claim fraudging. And they used a test and infringement test to determine whether or not the claim is in proper fraud and freedom. Here, we're talking about contributing the claim for purposes in the claim of the prior art, totally different issues. Therefore, it doesn't apply for that reason. When over, it wasn't fully litigated. We had a mark on hearing, we had a settlement after the mark on hearing, the issues weren't fully litigated at the district court. The mark and order wasn't final for purposes of appeal, whether or not it's final for purposes collateral stop or not, it might be debated amongst the different districts and different circuits. Nevertheless, that mark and order could have been changed if there had been a trial, there had been more information, there had been more evidence to be considered, the court could have modified the mark and order. Therefore, the level of finality necessary to apply collateral stop would all have been exited. In fact, this court, I think the public side's part of the dollar of Delaware case, and in that case, there was a settlement. And because of the settlement, a later case by this court, I think the Dana case commented and said, in that case, things could have changed, things could have been altered in there for because it was settlement, it wasn't fully exhausted, it wasn't appropriate for collateral stop. But even all of that, none of it says ever that the collateral stop will claim construction ever apply against the PTO and reexampt and administrative proceeding because it's well settled, anyway, enter and block, at the kind of equip, Yamamoto, high numerous cases by this court say claim brought as reasonable interpretation as applied to the PTO, which is a different standard than what gets applied in an infringement seat. Why? Why is it functional to have a different standard? What's the purpose of it? Well, it goes back to the presumption of patentability in honor. The advocate fully explains that the presumption of patentability does not occur within the PTO, whether you're in an initial examination or whether you're in a B examination, there is no presumption of patentability. Because of that lack of presumption of patentability, the claim doesn't go out. What I'm trying to get out of this, the broadest reasonable construction seems to make a differentiation between a breadth so that it necessarily contemplates something that's broader than the ultimate correct construction that a district court and litigation may conclude. So, if it's known to be less accurate, overbroad, and you have a circumstance, we may not have it here, but let's assume you do have a circumstance where you have a district judge correct construction, then why doesn't it make sense for the system to use the more accurate of the two available constructions? The PTO is free to consider the construction that took place at the district court and include that in determining what the broadest. You're not answering my question. If you have a correct construction of a claim and you have as an alternative to rely on an overbroad construction, by definition it's overbroad, then why doesn't it make more sense to use the accurate construction? I think the PTO is still bound to apply a reasonably broad construction. I'm questioning that. That's exactly my point. Why isn't it better policy, more logical, more accurate, more dependable, better in every way to use an authoritative litigated construction that's purports to be the correct construction rather than an admittedly overbroad construction? When you have both available, why not use the one that you know is more accurate? Particularly in a reexample seating where under a year of theory of different constructions you could get a different result in the reexample seating from the district court determination. When I think ethical and equid addresses this issue, they talk about the situation where you could have a different claim construction and a different result in the district court suit. There could have been a finding of infringement in a district court case on a path. They could have determined it's not invalid and it's infringed. Nevertheless, the PTO, under ethical and equid is told you still must go forward, you still must contribute to claim with the broadest reason for interpretation. You have different evidence, you have a different record, you have different burdens of proof, which is another point. In the PTO, in order to reject a claim, they only need to meet a proponents of the evidence. You talked about examination or reexamination. Either what, their treaty. No, no, no, no, there's a difference because in the case of examination, you normally aren't going to have an authoritative district judge correct construction of the claim
. Because of that lack of presumption of patentability, the claim doesn't go out. What I'm trying to get out of this, the broadest reasonable construction seems to make a differentiation between a breadth so that it necessarily contemplates something that's broader than the ultimate correct construction that a district court and litigation may conclude. So, if it's known to be less accurate, overbroad, and you have a circumstance, we may not have it here, but let's assume you do have a circumstance where you have a district judge correct construction, then why doesn't it make sense for the system to use the more accurate of the two available constructions? The PTO is free to consider the construction that took place at the district court and include that in determining what the broadest. You're not answering my question. If you have a correct construction of a claim and you have as an alternative to rely on an overbroad construction, by definition it's overbroad, then why doesn't it make more sense to use the accurate construction? I think the PTO is still bound to apply a reasonably broad construction. I'm questioning that. That's exactly my point. Why isn't it better policy, more logical, more accurate, more dependable, better in every way to use an authoritative litigated construction that's purports to be the correct construction rather than an admittedly overbroad construction? When you have both available, why not use the one that you know is more accurate? Particularly in a reexample seating where under a year of theory of different constructions you could get a different result in the reexample seating from the district court determination. When I think ethical and equid addresses this issue, they talk about the situation where you could have a different claim construction and a different result in the district court suit. There could have been a finding of infringement in a district court case on a path. They could have determined it's not invalid and it's infringed. Nevertheless, the PTO, under ethical and equid is told you still must go forward, you still must contribute to claim with the broadest reason for interpretation. You have different evidence, you have a different record, you have different burdens of proof, which is another point. In the PTO, in order to reject a claim, they only need to meet a proponents of the evidence. You talked about examination or reexamination. Either what, their treaty. No, no, no, no, there's a difference because in the case of examination, you normally aren't going to have an authoritative district judge correct construction of the claim. You won't have that available, that's correct. Exactly, so there's no choice. But here, here we, we had some choice. In a hypothetical case where you had a final judgment, suppose you had a final judgment, affirmed here in a district court case. So the correct construction of the district court is agreed to by this court on Denovov review. Under your argument, the PTO can nevertheless cast aside that affirmed correct construction and use, and it's much easier for the PTO because it makes, obviously, it's easier to prove an overbroad construction. Why does that make any sense? Well, the best explanation I can give for you is what's been explained in ethical language with, accordingly, the different results between the two forums may be entirely reasonable. In, for example, the district court could have done everything right, construed the claim correctly in the infringement context. And it goes all the way up, and the Federal Circuit affirms and says, we find no error in what the district court did. There's a standard overview that gets reviewed. They don't even know it's Denovov. They find no error in the overall determination of that district court. Then that patent, a new reference pops up, somebody requests reexamts. It ends up in a reexamts proceeding. The PTO is now told by this court to go back to square one, treat that reexamation as if it was initially an initial patent application. Well, I'm asking you why it makes sense, and you're just citing the ethical. Well, I think the past
. You won't have that available, that's correct. Exactly, so there's no choice. But here, here we, we had some choice. In a hypothetical case where you had a final judgment, suppose you had a final judgment, affirmed here in a district court case. So the correct construction of the district court is agreed to by this court on Denovov review. Under your argument, the PTO can nevertheless cast aside that affirmed correct construction and use, and it's much easier for the PTO because it makes, obviously, it's easier to prove an overbroad construction. Why does that make any sense? Well, the best explanation I can give for you is what's been explained in ethical language with, accordingly, the different results between the two forums may be entirely reasonable. In, for example, the district court could have done everything right, construed the claim correctly in the infringement context. And it goes all the way up, and the Federal Circuit affirms and says, we find no error in what the district court did. There's a standard overview that gets reviewed. They don't even know it's Denovov. They find no error in the overall determination of that district court. Then that patent, a new reference pops up, somebody requests reexamts. It ends up in a reexamts proceeding. The PTO is now told by this court to go back to square one, treat that reexamation as if it was initially an initial patent application. Well, I'm asking you why it makes sense, and you're just citing the ethical. Well, I think the past. That's not responsive. Maybe ethical con is stupid. Maybe ethical con should be changed. What's the logical reason to use an inaccurate construction? I don't think it was stupid. It's an old case, but I remember working very hard on it. It's also binding precedent. I'm not a prosecutor. I don't think it was stupid. I had nothing to do with it. What I can't say, I think there's a policy behind it in the policy. That's what I'm asking. And the policy does go back to the concept of the presumption of patentability. The fact that when an issue patent is out there being a servant and infringement, that patent has to be treated with the statutory presumption of patentability. 35 years code 282, I believe. Let me just, you're talking about stupidity and other things that we're focusing on. The district court getting, making a claim construction. Our court says that the claim construction of a district court is entitled to absolutely no difference
. That's not responsive. Maybe ethical con is stupid. Maybe ethical con should be changed. What's the logical reason to use an inaccurate construction? I don't think it was stupid. It's an old case, but I remember working very hard on it. It's also binding precedent. I'm not a prosecutor. I don't think it was stupid. I had nothing to do with it. What I can't say, I think there's a policy behind it in the policy. That's what I'm asking. And the policy does go back to the concept of the presumption of patentability. The fact that when an issue patent is out there being a servant and infringement, that patent has to be treated with the statutory presumption of patentability. 35 years code 282, I believe. Let me just, you're talking about stupidity and other things that we're focusing on. The district court getting, making a claim construction. Our court says that the claim construction of a district court is entitled to absolutely no difference. And so it can't be a definitive meaning of a claim when it gets reviewed in a law. Well, I'll get reviewed in a law. We're talking about district courts. I mean, the law is unusual in this field. But I think if you look at it, and you look at the concrete quick, I think they do go back to the original policy that Congress had in mind when they passed the reexamination statute. When they passed the reexamination statute, Congress intended it for that patent patent, that patent, that patent that come back into the patent office, be re-opened as if it was a fresh application all over again. And to go back and look at the claim as if it was being evaluated in its initial context with the broadest reasonable construction, not to be treated as it was in the district court. Now, does that mean the district court's claim construction in all instances is unreasonable? No. Does that mean the PTO may not apply the same construction in certain instances where that is the broadest reasonable interpretation that could happen? But the PTO is not bound to follow that district court's claim construction. And I think that is clear in the re-adder, I think that's clear in that accounting equation. I think the policy, why is it like this? It does go back to the fact that Congress is trying to say, hey, when you've got an issue patent in Congress being a surrogate in a litigation environment, that patent is supposed to have this presumption of patentability. Therefore, the district court construes the claim with an eye towards finding the patent ballot. There's a slant towards finding the patent ballot. Whereas at the PTO, the claim is construed broader. With a broader look, it would still most be reasonable. But it's a broader look because the PTO's job is to vet that claim against the prior art. In this case, for example, here, the evidence is not the same
. And so it can't be a definitive meaning of a claim when it gets reviewed in a law. Well, I'll get reviewed in a law. We're talking about district courts. I mean, the law is unusual in this field. But I think if you look at it, and you look at the concrete quick, I think they do go back to the original policy that Congress had in mind when they passed the reexamination statute. When they passed the reexamination statute, Congress intended it for that patent patent, that patent, that patent that come back into the patent office, be re-opened as if it was a fresh application all over again. And to go back and look at the claim as if it was being evaluated in its initial context with the broadest reasonable construction, not to be treated as it was in the district court. Now, does that mean the district court's claim construction in all instances is unreasonable? No. Does that mean the PTO may not apply the same construction in certain instances where that is the broadest reasonable interpretation that could happen? But the PTO is not bound to follow that district court's claim construction. And I think that is clear in the re-adder, I think that's clear in that accounting equation. I think the policy, why is it like this? It does go back to the fact that Congress is trying to say, hey, when you've got an issue patent in Congress being a surrogate in a litigation environment, that patent is supposed to have this presumption of patentability. Therefore, the district court construes the claim with an eye towards finding the patent ballot. There's a slant towards finding the patent ballot. Whereas at the PTO, the claim is construed broader. With a broader look, it would still most be reasonable. But it's a broader look because the PTO's job is to vet that claim against the prior art. In this case, for example, here, the evidence is not the same. The prior art that's being considered by the PTO will respect to this claim was never considered by the district court. The issue of invalidity was never argued at the district court. Here, the issue of validity or patentability of this claim is the issue before the PTO, accordingly, under the PTO's legal standards for claim destruction, under the different evidence in their record. All of these factors amount to the one conclusion that the issues are not identical in the two proceedings, and therefore the collateral has stopped the doctrine, does not apply, just because of that alone. Now, there's all the other factors as well. Judge, you pointed out you're trying to apply collateral stock against the government and that can't happen here. We agree. We don't have the Supreme Court case cited in our brief. However, we agree that the PTO was not party to that district court suit. The public was not part of that district court suit. And now, we can't apply, bind the PTO or stop the PTO under the collateral stock of doctrine when they were not represented in that district court suit. Nor were there interest in interest represented in that district court suit. So when you look at all of the factors that fall under the collateral stock of doctrine, it is simply in applicable to the PTO in this context. And the Freeman case, which is the one case that a Palette site that related someone to the PTO is completely different, because at Freeman, just like Judge, I said, a stock was applied against Mr. Freeman. A stock that wasn't applied against the PTO, the PTO was the tribunal, applied the doctrine against the party, just like a court would apply the doctrine against the party. So that is a key distinction in the Freeman case
. The prior art that's being considered by the PTO will respect to this claim was never considered by the district court. The issue of invalidity was never argued at the district court. Here, the issue of validity or patentability of this claim is the issue before the PTO, accordingly, under the PTO's legal standards for claim destruction, under the different evidence in their record. All of these factors amount to the one conclusion that the issues are not identical in the two proceedings, and therefore the collateral has stopped the doctrine, does not apply, just because of that alone. Now, there's all the other factors as well. Judge, you pointed out you're trying to apply collateral stock against the government and that can't happen here. We agree. We don't have the Supreme Court case cited in our brief. However, we agree that the PTO was not party to that district court suit. The public was not part of that district court suit. And now, we can't apply, bind the PTO or stop the PTO under the collateral stock of doctrine when they were not represented in that district court suit. Nor were there interest in interest represented in that district court suit. So when you look at all of the factors that fall under the collateral stock of doctrine, it is simply in applicable to the PTO in this context. And the Freeman case, which is the one case that a Palette site that related someone to the PTO is completely different, because at Freeman, just like Judge, I said, a stock was applied against Mr. Freeman. A stock that wasn't applied against the PTO, the PTO was the tribunal, applied the doctrine against the party, just like a court would apply the doctrine against the party. So that is a key distinction in the Freeman case. When we're in Freeman, the issues were identical. They both had infringement constructions, not an infringement construction and a lot of reasonable interpretation instructions. They had infringement constructions because the issue wasn't about applying prior art to determine validity of the claim. The issue was about improper claim broadening, which you're not allowed to do in a read exam via statute. So I think it's clear from our perspective that collateral stock is not applicable. Regardless, even if collateral stock were applicable, looking at the Markman order in this case, we don't agree with the characterization by a Palette about that Markman order. When you look at this Markman order and look at it closely at the very last page of the Markman order, the judge construes the claims. And he goes down to each claim term construing those claims. And when you come to the claim term that's at issue, which is responsive to the Rayman inflation about page A667 or A203, either page, he simply, this judge simply slides the language out of the specification directly responsive to a market indicator of prior actual inflation. And it is not meant to include the market expectation of future inflation. There is nothing about one to one, nothing about directly proportional, nothing about continuous, nothing about the claim term that a Palette is now trying to read into the claim. So we don't even think that the board is inconsistent with the district courts, Markman order. If we really wanted to go there, but we don't think we have to. Moreover, when you look at the specification in this case, there are multiple disclosures in the specification. They have partial hedging, full hedging, full hedging and matching hedging. Their claims encompass a multitude of different variations of the type of responsiveness that might take place. So we think the board's construction of the claim language here is reasonably
. When we're in Freeman, the issues were identical. They both had infringement constructions, not an infringement construction and a lot of reasonable interpretation instructions. They had infringement constructions because the issue wasn't about applying prior art to determine validity of the claim. The issue was about improper claim broadening, which you're not allowed to do in a read exam via statute. So I think it's clear from our perspective that collateral stock is not applicable. Regardless, even if collateral stock were applicable, looking at the Markman order in this case, we don't agree with the characterization by a Palette about that Markman order. When you look at this Markman order and look at it closely at the very last page of the Markman order, the judge construes the claims. And he goes down to each claim term construing those claims. And when you come to the claim term that's at issue, which is responsive to the Rayman inflation about page A667 or A203, either page, he simply, this judge simply slides the language out of the specification directly responsive to a market indicator of prior actual inflation. And it is not meant to include the market expectation of future inflation. There is nothing about one to one, nothing about directly proportional, nothing about continuous, nothing about the claim term that a Palette is now trying to read into the claim. So we don't even think that the board is inconsistent with the district courts, Markman order. If we really wanted to go there, but we don't think we have to. Moreover, when you look at the specification in this case, there are multiple disclosures in the specification. They have partial hedging, full hedging, full hedging and matching hedging. Their claims encompass a multitude of different variations of the type of responsiveness that might take place. So we think the board's construction of the claim language here is reasonably. We don't disagree that it's broader than what a Palette is arguing. He's trying to argue a more narrow interpretation. We think it's slightly broader than that, but it's reasonable. And it's within their following the law and the application of the construction standard as they perform that. Moreover, the prior art references have these features. Even if this court were to go with the argument construction, argue more narrow one to one construction, if you look at the prior art, the MacHairry reference, it talks about inflation adjustment accounts for banks. Back in the 1950s, they talk about multiple types of inflation adjustment. They talk about stack type inflation adjustment. They talk about 100% proofing, 50% proofing. And we've pointed to these in our brief. If you go through our brief, you'll see specific citations that the MacHairry reference, the prior art, teaches multiple types of inflation adjustment. We think all of that leads on the claim as we've interpreted it, and moreover, even if we read this more narrower construction here, we still think the claim would be rendered unpatible. Finally, Judge Dyck's comments about KSR, just the concept of what they're doing here, let's think about what's happening here. We've got old well-known inflation adjustment methods that banks, for years and years and years have engaged in. Inflationary economies all over the world have a deal with this issue. When there's high inflation economies, banks and investment entities often offer inflation adjustment type investments. That's why they wouldn't be able to track the investment if they didn't do it
. We don't disagree that it's broader than what a Palette is arguing. He's trying to argue a more narrow interpretation. We think it's slightly broader than that, but it's reasonable. And it's within their following the law and the application of the construction standard as they perform that. Moreover, the prior art references have these features. Even if this court were to go with the argument construction, argue more narrow one to one construction, if you look at the prior art, the MacHairry reference, it talks about inflation adjustment accounts for banks. Back in the 1950s, they talk about multiple types of inflation adjustment. They talk about stack type inflation adjustment. They talk about 100% proofing, 50% proofing. And we've pointed to these in our brief. If you go through our brief, you'll see specific citations that the MacHairry reference, the prior art, teaches multiple types of inflation adjustment. We think all of that leads on the claim as we've interpreted it, and moreover, even if we read this more narrower construction here, we still think the claim would be rendered unpatible. Finally, Judge Dyck's comments about KSR, just the concept of what they're doing here, let's think about what's happening here. We've got old well-known inflation adjustment methods that banks, for years and years and years have engaged in. Inflationary economies all over the world have a deal with this issue. When there's high inflation economies, banks and investment entities often offer inflation adjustment type investments. That's why they wouldn't be able to track the investment if they didn't do it. So they do it. That's well-known. There's nothing new about that. That's existed for 50 years. The other thing that's in this case is an automation of that with a computer. We've presented prior art where it's known to automate financial and balancing of accounts of banks. Therefore, all that's really being done is the automation of a well-known method, method and method. Time is expired. Thank you, Your Honor. Thank you, Mr. Parker. One minute. Your Honor, regarding your point on the Windows case, well, I'm not familiar with it. I will assume that that was the case. Did this thing? I have a citation to it. It's 464 US-154. Thank you, Your Honor
. So they do it. That's well-known. There's nothing new about that. That's existed for 50 years. The other thing that's in this case is an automation of that with a computer. We've presented prior art where it's known to automate financial and balancing of accounts of banks. Therefore, all that's really being done is the automation of a well-known method, method and method. Time is expired. Thank you, Your Honor. Thank you, Mr. Parker. One minute. Your Honor, regarding your point on the Windows case, well, I'm not familiar with it. I will assume that that was the case. Did this thing? I have a citation to it. It's 464 US-154. Thank you, Your Honor. I'm going to assume that in that case the government was a party. In this case, the government is not a party. PTO is not a party. This is the next party action. So I would assume that that case is a case where the government was a party. Isn't that case your being applicable here? Secondly, the policy says that once the claims have been construed, it doesn't make any sense to the patent owner, then has to go face entirely different set of circumstances and re-examination. Simply doesn't make sense. It's not logical. Because then you're put into the difficult situation of having to face a broad interpretation and then having to amend the claim that has all kinds of consequences potentially in terms of intervening rights. Well, the claim construction is not final. The case may be over, but that is not final. That's not the last word I'm in the district court. That's right, Your Honor. Here there was the opportunity to appeal, but no appeal was taken. With respect to the 100% proofing, Your Honor, I think that's not exactly correct. The 100% proofing mentioned in this one particular piece of prior art still had this stepwise function where it had to go up at least 2% or there was no inflation adjustment at all. All right
. Thank you both. We'll take the case under advised