Legal Case Summary

. Where are we then on the alternative construction? So then the issue would be with respect to ASAHI were the board's findings that it provided a perception of depth supported by substantial evidence. And then likewise with respect to the other references. And then with respect to the Calakita reference, the issue would be did the board make findings to support the idea that it was provided a sense of depth for the entire scene. And in that regard, I think the problem was that the board really engaged in a 103 type analysis. When the rejections here are the basis for an institution here was 102 anticipation. So with respect to the ASAHI reference, the board didn't identify any expressed disclosure in ASAHI where it showed images that provided the sense of depth to the human. So the ASAHI or Calakita? ASAHI or Calakita. And so what the board did was it looked to Sony's expert testimony that well adjustments could be made to the images. And if you adjusted them, then you would supposedly get a perception of depth. So the issue is whether adjustments are precluded. That's correct, Your Honor. And we're talking about adjustments that aren't done by the process, right? That's correct. Yeah. And Calakita is actually a good example of that because Calakita in particular talks about making adjustments with humans, you know, 10 research personnel there, were needed to adjust the images in order to give a sense of depth for the entire scene. And that doesn't your construction depend on the words such that so that you read the display step in the 264 as requiring that this be done by the processor. So there's a couple of things on that. That's one of our arguments on the 284, Pat, and Your Honor. The other argument is that the claim language itself links the mosaics of the scene together in those two elements. So the processor talks about generating a plurality of mosaics. And then the display element talks about displaying the mosaics. And so our point would be that when the claim says displaying the mosaics, it has to be referring to the same mosaics that were generated by the processor. Well, it says and displays them so as to provide a sense of depth of the scene. That's where the depth of the scene comes in under the display limitation, not only the processing limitation, correct? I don't agree with that, Your Honor, because the images themselves have to be able to provide that sense of depth. So all the display is doing is it's taking the images that the processor's already generated, and it's just displaying them so that they have a sense of depth

. But you still have to have images that are capable of being displayed, capable of providing a sense of depth when they're displayed. And the problem with this prior art is that it doesn't disclose images that are capable of providing that sense of depth because it's not for showing stereo. It's for calculating these types of three-dimensional maps. And so, for the adjustments to the images. Is that really true of Calakita? I mean, I thought that the board's description of Calakita reflecting what it said was that it pointed to the need for adjustment in certain instances, but that in other instances, images created by the Calakita system would, in fact, meet that kind of common sense definition that they are capable of providing a sense of depth to the scene as a whole. Yes, so the board did distinguish those two cases in Calakita with respect to a latter one. The issue was that it was talking about instances in which the camera was far away from the scene, and so there wouldn't be any sense of depth to perceive, because the objects would be so far away that when you're looking at the image. Here's what I guess I'm remembering, and I don't have it in front of me. I thought, roughly speaking, there were three things Calakita was describing. One, a set of images for which nothing would need to be done. And then it says, and then there are two instances in which you might need to do something. And I thought the distance one was one of the two things for which you might need to do something, but that the first group, Calakita is described by the board as disclosing images that you don't have to do anything for, and still a viewer when viewing would get a sense of depth of the scene as a whole. And so our view on that particular part of Calakita is that the viewer wouldn't get a sense of depth because the camera is so far away from the images that there wouldn't be any depth to perceive. So that was the problem, like Calakita was saying was, well, I don't need to adjust in that situation because there's no need to make the adjustment because no one can see depth anyway. There's no depth to perceive. How do we know that? I mean, that's your interpretation of the reference, are you putting in a declaration? That's our interpretation of the reference, Your Honor. But the reference doesn't say what you just said. I think it does, Your Honor, because it's talking about these two situations. And I think in that, it's contrasting the situation in which the camera is relatively close. And in that case, it talks about needing to make the adjustments as opposed to the other situation in which you don't need to make the adjustments. We would say it's implicit in the reference that that's talking about the situation in which the camera is far away. And Sony's expert had admitted that there are these situations in which you have this degenerative sense of depth because the camera is so far away that you can't perceive any depth. And Sony's expert, in particular, talked about that, situation just generally about this degenerative sense of depth in his declaration, his second declaration at A1575. And then he again mentioned it in his deposition testimony at A1806-07

. So that's our view, Your Honor, is that if the court goes with our claim construction on the OO3 pan, then in particular, the slightly displaced, that that is an instance in which the board did not make any findings under our construction, and that at least with respect to claim three, the anticipation line you would have to be set aside. And even on the slightly displaced, your view, even if we were to accept that as part of the claim construction, your view then would be that the board could not read or apply slightly displaced to the helicopter motion where the 100-foot or something, the distance between shots is pretty slight compared to the distance to the object being photographed. That's right, Your Honor. I would characterize it more as an issue of construction in the first instance as opposed to application of the construction, because, of course, of its issue of construction, it's a question of law. And really, the question is what's the scope of these patent claims? No one is disputing the content of a sasi. It's really a question of what does slightly displaced mean in that definition. And we would say that that's an issue of claim construction. It's reviewed de novo. And the patent repeatedly talks about displacements that are approximately the distance to the human eyes. Figures 1A and 1B show that. There's a couple instances in the specification, which talk about that. The board's only basis in the patent for going elsewhere was there's a sentence that talks about exaggerated stereo account 7. But even in that instance, you're talking about, okay, maybe something that's a little broader than the human eyes. So the human eyes are about 2.5 inches apart. And a sahi were talking about distances when these images are being recorded from this helicopter that are, you know, tens or hundreds of feet apart. And so you're talking about a three-order of magnitude difference. In our view, that's not slightly displaced either under just the ordinary sense of the word slightly or how it's used in this patent. And the board's error was that it went to Sony's expert and to some of his extrinsic evidence to look and come up with a different definition of slightly displaced. But as a legal matter, the court and the board have to start with the intrinsic evidence. And here where the intrinsic evidence is clear and shows that it's just approximately the displacement between the human eyes, it was improper for the board to go to Sony's extrinsic. Q. Is there something in this specification and maybe I'm misremembering this, where in the description of the, I don't know, the radius of the visual circle, is that the term? S. Yes, yes

. Where it says ordinarily, that's about the distance between human eyes, but then there's a sense that says, but in fact, it can be larger. Yes, Your Honor, that's the sense of column seven. But what it says is you can, if you want exaggerated stereo, you can make it larger. But in the context of that paragraph, what it's saying is that, okay, you can make it a little bit larger than the human eyes, but you can't make it, there's nothing in the patent that suggests that you would make it many, many, many orders of magnitude larger. But I think the suggestion is that it is slightly displaced relates to the distance. That's right. And I think we would say that just the ordinary meaning of slightly means that it's got to be in the context of this patent, approximately, the distance between the human eyes. Q. Can I switch topic and ask you some things about the jointer? S. Sure. Do I understand correctly that when the petitions that resulted in the 326 and 327 IPRs, I guess the follow on petitions were filed, in your opposition to those, you did not say, these are untimely under 315B and therefore they should not be instituted. I couldn't find that and that what you did was oppose jointer, but it didn't oppose institution. That's correct, Your Honor. We didn't oppose jointer. I think that we did oppose jointer. We didn't oppose institution. So, to think, here's what I'm trying to figure out how several things fit together here. If institution is unopposed and is unreadurable, is unreversible, if only because it was unopposed, then why could not the board have gotten to exactly where it got to here by simply consolidating the proceedings? Consolidating them under 315D nevermind 315C. I don't understand why there's any need to discuss in this particular case, what is putting aside other waiver arguments, which I know exists, scope of 315C. Consolidation of an unreviewable institution proceeding gets to the same place, doesn't it? Well, consolidation isn't part of the exception to the one-year bar, so I think that's what I would say, the board would be acting ultra-v-rays if it would have tried to consolidate the proceedings and then institute the 326 and 327 petition. I assume you only consolidate after you institute, but I'm taking as a premise now that the 326 and 327 were instituted and we can't reverse that. For a variety of reasons, unreviewability, the fact that you didn't oppose institution. Right, 226 and 327. So, taking that as a given for purposes of this question, why isn't what? At a bottom line, the board did hear was to consolidate these two proceedings

. I realized it didn't talk in those terms, or it's not argued in those terms, but I'm puzzled about why that isn't what the net result is here, wholly apart from any implicit or explicit limitation in 315C about joined. Right, so I mean, I guess two things. One is you noted, I mean, the board didn't say it was consolidating, so it was using jointer. Two, I would say even in the situation in which, you know, if the board were to say it was consolidating, we could have sought mandamus at a minimum. And so I would say that the court would be able to review that under its mandamus jurisdiction for many of the same reasons that we've explained here. You know, if you have IPR traditions that are clearly filed after the one-year time bar, there's no dispute about that. It would seem like the conditions for mandamus would be satisfied. The right to the right would be clear and indisputable. There would be no alternative remedies because, of course, there wasn't a direct appeal available, and it would be appropriate under the circumstances because the board would just be flouting a statutory command. But I mean, I think in close, I would just not leave open the door that may be mandamus, that this would ultimately be unreviewable, leaving open the door for possibility of mandamus in certain circumstances, but we haven't yet decided that mandamus would necessarily yield, right? That's right. Chief Judge Prost and I would say that this is the case that mandamus would be appropriate. Well, that suggests that you're giving up on the appealability argument in the light of a Chadise. It doesn't, Your Honor. We believe that a Chadise is distinguishable for a couple reasons. The main one being that this is the interpretation of the Joinder statute is generally applicable, so we're not making something that's applicable to just. But this is a close-out of Chadise in the sense that if the thing had been timely filed, there wouldn't be any problem. In those cases suggests that at a minimum, the appealability more applies where you could if you filed earlier, you would have been properly there. So this is just like that, isn't it? I disagree, Your Honor, because the challenge here is not the institution or the one-year bar, it's to the Joinder statute. And here we're making a generally applicable point about the Joinder statute that you're not allowed to join claims that the Joinder statute just permits Joinder or Hardee. How is that different than the Chadise, the one-year bar statute? What makes that different? Because it goes to the board's power to act in the manner in which it did in this case. So the board could not have put in 326 and 327 petitions if it hadn't joined them to this proceeding. The Joinder statute was a necessary decision underlying what the board did to get to its final written decision. Well, what the Joinder statute does is we don't have to worry about timeliness if there's a Joinder. And we said timeliness is an institution decision which we're not going to review

. But what we would say that this Court to do, Your Honor, is just decide that the board didn't have the power to join and then remand for the board to look at institution in light of, again, in light of the fact that it doesn't have the power to join these proceedings. And then it would ultimately be the board. And the board argument about Joinder is based on the fact that this was the same person and not a different person. Two things, Your Honor. Yes, one is that. And then the other is that the statute doesn't specifically provide for the Joinder claims. It just provides for Joinder or Cardi. And so there's no statutory authorization for what the board did with respect to Joinder here. If it were a different party, could the different party be joined along with different claims? No, Your Honor. Because Section 315 see only speaks to Joinder of claims and so on that. Respect its language parallel federal rules of Civil Procedure 19, which talks about Joinder of parties. There's a different federal rule of Civil Procedure that talks about Joinder of claims. There's no statutory authorization for the board to join claims. Can I think I know the answer to this? But this is one of those fairly infrequent cases in which what we'll call the board in one or another proceeding arrived at a policy position through what might be considered panel stacking. You haven't challenged that, right? Under either APA or statutory or due process grounds of the sort that we're talked about a bit in the dissent in the past. Right. We've nod in this case mainly because it wasn't presented in our case below. But I wouldn't say when you're thinking about what kind of deference if any to give to the PTO, I think it speaks to the fact that the court needs to look at the statute to know, and not give any deference chevron or otherwise to the PTO because the PTO is balancing from position to position. There's not really a reasoned agency approach to this. I see I'm running out of time. No, that's fine. Save that and we'll be stood to a additional one that's currently done. Thank you. Okay, Mr

. Handle. Good morning, Your Honours. May I please the Court? As it turns out, the priorities that I set for the limited time I have turn out to be not the same as the priorities that Mr. Countryman sent out, which is basically to address a couple of claim-construction issues. The first one, of course, being the Board's final construction of stereoscopic image pair, and also to address the construction of slightly displaced positions in the Board's preliminary construction, which I should point out, I think as the Board has noted, the Board made findings of unpackability under both the broader construction in the final decision and also the narrower construction in the preliminary decision. And so even if the Court were determined that the Board aired in construing stereoscopic image pair in the final construction, the Board's alternative findings are service supported by substantial evidence and the Board should be affirmed nevertheless. The third priority I have, of course, is to address joineder. So going first to the issue of stereoscopic image pair, what happened was the parties basically agreed on a construction. The Board made a determination in the institution decision that that construction was consistent with the ordinary meaning, the Board looked at a couple of dictionary definitions. And then when time came for the evidence to be presented and for the oral hearing to occur, the Board was confronted with a different ordinary meaning that in fact was advocated by, by isn't, just some argue the broader construction in stereoscopic image. And the experts for aside supported that. So the Board confronted with that and said, okay, that is the proper construction. Here you go. I may not be remembering the details. I thought that the gist of the disagreement here is that the Board adopted a construction that would allow images to be stereoscopic if they would not in fact be seen as having depth perception by human eyes, by human being with two eyes in the normal place. But might be viewed that way, whatever viewing means in this sentence, by a computer. And that the gist of the argument on the other side is that both the sentence that they want to call a definition, but in any event the whole spec as a whole tells you in the context of this patent that's ridiculous. This is about what human beings would see. That is your position, but what's wrong with that? Why is that not right? Well, certainly the backdrop is that, starting from first premises, the interpretation of a term is from the viewpoint of a person who was given the order. So the person who was given this in the context provided by the whole document and the whole document is about what human eyes will see. Well, let's, let's, certainly the embodiment that's discussed in the only embodiment that's discussed is an embodiment in which two images are going to be generated that are for human viewing. No question about that. The board did note that at the tail end of the specification where typically patent owners are talking about an large perspective. If this would be useful for computer games

. Or in robots. And robotics, the only example of the board had of robotics was the party's presentations related to issue of euro, which has to do with robot navigation. And so that in that context, you know, the primary function is for the robot to measure distances. In the board, I think properly viewed that as an example of a broader usage of the term that goes beyond what's appropriate for human viewing. But this is only under this alternative construction, right? Well, this is under, right, the board. In other words, the board did address the claims under the assumption that it requires human depth perception and concluded that that was satisfied by one under some circumstances. You would get it anyway in the prior art in two because in the prior art, you get it as a result of human manipulation and that that is permissible under the clients. Correct. And we spent most of our brief addressing that variation and pointing that out. If I can just make one more point on the board's final construction and support of it. Basically, the board looked at the claim one, which is the only one about which there was argument. And identified as a system claim that has two elements. And as a strip generator and a mosaic and misgenerator. And within the mosaic image generator element, it basically says you get two mosaics. And those mosaics comprise the stereoscopic image pair, providing a stereoscopic image of the scene as recorded over the path. So the claim itself speaks a broader construction of stereoscopic image pair. Particularly, stereoscopic image pair is the outcome of the functioning of these two elements. They comprise a system. And so the claim is certainly consistent with the broader interpretation. It's only if one goes to the specification and one makes a determination that there's a special definition that deposits from the agreed upon ordinary meaning that you get to this notion that you have to have images for human viewing and so on. So if I could now go to the second part of the claim construction, which is this slightly displaced, slightly displaced positions is part of the board's preliminary construction. And here, two things as a threshold matter. First, as I said, it's the meaning that that term would have to person skilled in the art knowing what they know and what they bring with them into the analysis and their reading of the patent. And secondly, it's the broadest reasonable interpretation of that

. So here, we have the board looking at the patent specification and noting that the patent itself says that the diameter of the viewing circle, which is basically the displacement of the two viewing positions, can be enlarged for exaggerated stereo. It doesn't place any limitation on that. It says it doesn't say as Mr. Controman suggests it only be enlarged a little bit. But it also doesn't say it can be enlarged for purposes of unexaggerated stereoscopic view. Does it? I'm not sure what unexaggerated means. Well, what do you think exaggerates? Well, the board, the board had evidence about that. And this goes to my point that this is the viewpoint of some of the skilled in the art. The board received evidence about what some of the skilled in the art knows about how to create stereoscopic images that are viewable and will provide a sense of depth to the human. And in particular, the board learned about the concept of disparity, which basically is a relationship between the distance between the photographic positions and the distance of objects, and that disparity, therefore, a proper disparity can exist for humans to view a stereoscopic image pair with photographic positions that are widely displaced because that displacement is appropriate for the distance of the objects being photographed. Which doesn't have anything to do with the exaggeration? Well, exaggerating what it has to do with this, the Pat uses a term normal stereo. Normal stereo is the stereo that mimics the experience that a viewer would have in looking at a scene natively. Well, I'm trying to understand whether the exaggeration point is the same as the distance from the object point that you just made before. It's a different point in this specification. Well, what is what I'm trying to do is to explain what exaggerate in me. So in the context- But I'm going to tell me first, is it that are we talking about a single point in the spec or two different points? Well, we're talking about a single point in the spec where that concept is mentioned. But it's a single concept, and it's that the distance is related to the displacement. Yes, it's a place of naturalism. It refers to the ability to spread the displacement between the photographing positions for exaggerate stereo. And just to round out what that means, Mr. Barton, the photographer who testified had as an exemplar of that, he showed or testified about an image of two distant mountain peaks captured using cameras, as utter feet apart, much wider than the distance between human eyes. And if one looks at that using red cyan glasses, one will see a separation between the two peaks. And the separation of one's season looking at those images is not one one missing in looking at the scene natively. One sees a separation that one would not see looking at the scene natively because one's eyes on a hundred feet apart

. So it creates a stereoscopic image that does not mimic the direct experience of your have and looking at the scene. That's what exaggerates stereo. That's what Mr. Dr. Gower testified about that. So that reference to exaggerating stereo is consistent with the evidence that the Lord received about what people skilled in the art and go about the technology creating these images. About a saahi. A saahi does in fact teach, disclose stereoscopic images that when viewed would provide a perception of that. The saahi says that under certain flight conditions, you generate the mosaics and the mosaics. Stereoscopic viewing is possible using the mosaics. And that's all that's required in the old three Pat, I think is Mr. Countryman said it's about the capability of the capture images if properly displayed to produce this perception of depth. That a saahi says stereoscopic viewing is possible. Dr. Darrell testified that once skilled in the art would understand viewing the refer to human viewing. And therefore a saahi does disclose images that provide a perception that when viewed. If the board does down your questions about that, I'd like to go on to the joiner at a higher level now. Pardon me. You said the board here on the board court. Thank you, your honor. About the about the joiner question, I agree with you judge Toronto that there was no. Below at the board level. There was no challenge to the institution decision with respect to the second petitions. There was a challenge to joining them with the first petitions on the basis that the director should not exercise this discretion because they were prolonging the proceeding and so on. These factors relating to the appropriateness. Can I just ask you, do you see any difference in between what the board ended up doing here? And what the board would have done had it simply said we institute. We interpret 315 B the timing rule a particular way. We now consolidate. I don't see any difference. I think I think the view point that your honor has expressed about what happened. Is is is is an appropriate is appropriate analysis. And there I mean I should I hope it's evident that one reason I'm asking is that it seems to me it's quite a lot of force to their join the argue. Everybody every lawyer who's passed, you know, the sixth week of first term civil procedure knows the difference between joining parties and joining claims. And this says joining parties. Yeah, but I can I address that. Please. Yeah, okay. So what I think is missing there is is following the join their statute talks about jointer of party uses those language and says any person who appropriately. I'm under three. Okay, so under three itself. Mr. countryman is suggesting that that that a second party let's say apple as a as a as a for instance. Piggy back on the Sony's and the petitions and they attack additional plans. Mr. countryman's point of view is that I'll be if they are a different party. They could not do that because the join their statute doesn't allow join your claims. However, if you look at the requirement of the join their statute and specifically that it requires that the petition. Satisfied the the requirements of 311

. These factors relating to the appropriateness. Can I just ask you, do you see any difference in between what the board ended up doing here? And what the board would have done had it simply said we institute. We interpret 315 B the timing rule a particular way. We now consolidate. I don't see any difference. I think I think the view point that your honor has expressed about what happened. Is is is is an appropriate is appropriate analysis. And there I mean I should I hope it's evident that one reason I'm asking is that it seems to me it's quite a lot of force to their join the argue. Everybody every lawyer who's passed, you know, the sixth week of first term civil procedure knows the difference between joining parties and joining claims. And this says joining parties. Yeah, but I can I address that. Please. Yeah, okay. So what I think is missing there is is following the join their statute talks about jointer of party uses those language and says any person who appropriately. I'm under three. Okay, so under three itself. Mr. countryman is suggesting that that that a second party let's say apple as a as a as a for instance. Piggy back on the Sony's and the petitions and they attack additional plans. Mr. countryman's point of view is that I'll be if they are a different party. They could not do that because the join their statute doesn't allow join your claims. However, if you look at the requirement of the join their statute and specifically that it requires that the petition. Satisfied the the requirements of 311. 311 is a preliminary examination of the merits of the petition. It requires a finding that there's a reasonable likelihood that at least one claim will be established to be on patent. So if you have an ongoing proceeding where the board is instituted and therefore has already made that decision with regard to the subject matter of the petition that precipitated it. Then what is the utility of the board looking at joining an additional party and examining whether or not they have met the threshold showing at least one claim is unpatable. Unless unless what's contemplated is that additional claims therefore additional issues can be added. Well, can I can I maybe I'm going to try to get at this a different way. If I'm right in my current working hypothesis that the consolidation provision allows the board to put together two proceedings that it thinks are sufficiently closely related that they should be litigated together. What is the role of 315 C? What does it add to that authority? Well, one thing clearly adds is that the a party who meets 315 C can be can be one for whom the time bar has already expanded. So how would that fit under the 315 C says something like the only parties that can join or ones that properly file petitions? Correct. And why doesn't why doesn't that preclude the out of time addition? Well, because 315 B says that the party is joining under 315 C. I see the property file. The property file is only properly under the other provisions not under 315 B. It's properly filed under it says under 311. Which is my point is to join the issues. So the out of the out of time petitioner can be joined even though you wouldn't have a consolidatable pair of timely proceedings. Correct. The out of time petitioner can be joined not just not just saying it can be joined not just standing in the time bar. Which is what's really fine say one more thing about I'm sorry. I think you know, I think that Katie seems to me a Katie's is dispositive that that the the challenge here really is to the time bar that they're saying these petitions were time bar. Katie's addresses the time bar says that the fact that the more made a determination that the time bar didn't apply that's not reviewable. And the because that's part of the institution decision and more over just looking at the other statute 319 319 is allows appeals a final decisions which in 318 a final decisions that relate to patent ability. So seems to me this is not a patent ability challenge when they're challenging joined or institution. Thank you. Thank you, Your Honor and May please the court

. 311 is a preliminary examination of the merits of the petition. It requires a finding that there's a reasonable likelihood that at least one claim will be established to be on patent. So if you have an ongoing proceeding where the board is instituted and therefore has already made that decision with regard to the subject matter of the petition that precipitated it. Then what is the utility of the board looking at joining an additional party and examining whether or not they have met the threshold showing at least one claim is unpatable. Unless unless what's contemplated is that additional claims therefore additional issues can be added. Well, can I can I maybe I'm going to try to get at this a different way. If I'm right in my current working hypothesis that the consolidation provision allows the board to put together two proceedings that it thinks are sufficiently closely related that they should be litigated together. What is the role of 315 C? What does it add to that authority? Well, one thing clearly adds is that the a party who meets 315 C can be can be one for whom the time bar has already expanded. So how would that fit under the 315 C says something like the only parties that can join or ones that properly file petitions? Correct. And why doesn't why doesn't that preclude the out of time addition? Well, because 315 B says that the party is joining under 315 C. I see the property file. The property file is only properly under the other provisions not under 315 B. It's properly filed under it says under 311. Which is my point is to join the issues. So the out of the out of time petitioner can be joined even though you wouldn't have a consolidatable pair of timely proceedings. Correct. The out of time petitioner can be joined not just not just saying it can be joined not just standing in the time bar. Which is what's really fine say one more thing about I'm sorry. I think you know, I think that Katie seems to me a Katie's is dispositive that that the the challenge here really is to the time bar that they're saying these petitions were time bar. Katie's addresses the time bar says that the fact that the more made a determination that the time bar didn't apply that's not reviewable. And the because that's part of the institution decision and more over just looking at the other statute 319 319 is allows appeals a final decisions which in 318 a final decisions that relate to patent ability. So seems to me this is not a patent ability challenge when they're challenging joined or institution. Thank you. Thank you, Your Honor and May please the court. I agree with my friend from Sony that this court does not have jurisdiction to review the agency's decision to institute these the later filed IPRs. The yes and try to get around the Katie's case by saying that it is what is really being reviewed here is the final written decision as to claims that we're not in the proceeding until they were until the second petitions were instituted and they were the proceed. So just very basic is the office's position that may join a party to questions that may join a party can be the same party that's already instituted and is the office's position that may join a party necessarily or at least allows that additional claims will be asserted by that party. Yes, Your Honor, to both questions on the first question it says may join as a party any person who properly files a petition and well join as a party would suggest ordinarily that it's party jointer that's allowed but it does the statute goes on and the value and tells the director to evaluate the priority of the petition that's filed. Look at it and decide whether or not it's something that could be instituted and if so the director can join the proceedings and so it's. Can I just I'm trying to I think I'm maybe beginning to understand this. It seems to me and tell me why this is wrong that 315c is about jointer of parties to put an instituted review number one without instituting review number two. Because if you instituted review number two there'd be no role for the joiner join to provision everything could be consolidated so the only function of 315c is to allow a party whose second who's who's request to institute proceeding number two could be different party could be same party not not my point here does not in fact have that second one instituted otherwise it would all just be consolidating to. Perfectly properly instituted proceedings I think the 315 is a little bit circular and that he says only if you instig only if you join under 315c and 315c says you can. What he doesn't apply is that C does not require the second proceeding to be instituted only that it be one that the that the director determines meet the non timing requirements for institution right but it says that what it's the purpose of 315c is to let someone who is otherwise time barbed under 315b get into the proceeding and the director looks at that petition and decides whether it's institutable and although you're on the joint so the joiner here maybe even should not have been coupled with the institution of 326 and 327 proceedings. What role is played by the institution of the 326 and 327 here as opposed to simply joining Sony to the 318 of 218 to 19. The the joiner of the institution of the second petition allowed Sony to bring forward different arguments about different claims. That would otherwise be time that would otherwise have been time why would strikes me as odd that the statute would have done that. I mean I can understand joining apart who delayed in instituting who's who's challenging the same claims but why would Congress have wanted to frame this in a way that somebody could bring in new claims that would otherwise have been time bar. The reason for that is that the patent owner is in an IPR proceeding and there are it knows its patents and jeopardy and it allows either the same party if new claims are served against it or other parties to get involved in the proceeding and bring their claims against the same patent into the single proceeding that moves forward. So the patent owner has all of the challenges that all parties have against its patent resolved in the single proceeding and the reason that we think that Sony can join into its own proceedings because the statute just says any person who properly files a petition and the way we read it that allows other parties in the way Senator Kyle in the legislative history says it allows other parties to bring in new issues. And if other parties can bring in new issues the statute is ambiguous as to whether or not the same party can and we've interpreted it in a way that allows. Who's the way that's been doing this interpreting? It's been interpretation through the board by the agency. I wonder where does the board give an interpretive authority? The director has the board and by the board here I mean you know the 8 million possible three judge panels plus how many other five judge panels that resolved after the director or his or her delegate decides she doesn't like the result of the original path. So the director has delegated the authority to decide institution decisions to the board and in that to get to your honors earlier question about aloha. It's especially appropriate in the situation that the director be able to make sure that her policy judgments are enforced by the board. So it's particularly appropriate in a situation like this where the director has the ultimate authority. What happened to another board tomorrow yesterday decides that a different life. If another panel were to decide

. I agree with my friend from Sony that this court does not have jurisdiction to review the agency's decision to institute these the later filed IPRs. The yes and try to get around the Katie's case by saying that it is what is really being reviewed here is the final written decision as to claims that we're not in the proceeding until they were until the second petitions were instituted and they were the proceed. So just very basic is the office's position that may join a party to questions that may join a party can be the same party that's already instituted and is the office's position that may join a party necessarily or at least allows that additional claims will be asserted by that party. Yes, Your Honor, to both questions on the first question it says may join as a party any person who properly files a petition and well join as a party would suggest ordinarily that it's party jointer that's allowed but it does the statute goes on and the value and tells the director to evaluate the priority of the petition that's filed. Look at it and decide whether or not it's something that could be instituted and if so the director can join the proceedings and so it's. Can I just I'm trying to I think I'm maybe beginning to understand this. It seems to me and tell me why this is wrong that 315c is about jointer of parties to put an instituted review number one without instituting review number two. Because if you instituted review number two there'd be no role for the joiner join to provision everything could be consolidated so the only function of 315c is to allow a party whose second who's who's request to institute proceeding number two could be different party could be same party not not my point here does not in fact have that second one instituted otherwise it would all just be consolidating to. Perfectly properly instituted proceedings I think the 315 is a little bit circular and that he says only if you instig only if you join under 315c and 315c says you can. What he doesn't apply is that C does not require the second proceeding to be instituted only that it be one that the that the director determines meet the non timing requirements for institution right but it says that what it's the purpose of 315c is to let someone who is otherwise time barbed under 315b get into the proceeding and the director looks at that petition and decides whether it's institutable and although you're on the joint so the joiner here maybe even should not have been coupled with the institution of 326 and 327 proceedings. What role is played by the institution of the 326 and 327 here as opposed to simply joining Sony to the 318 of 218 to 19. The the joiner of the institution of the second petition allowed Sony to bring forward different arguments about different claims. That would otherwise be time that would otherwise have been time why would strikes me as odd that the statute would have done that. I mean I can understand joining apart who delayed in instituting who's who's challenging the same claims but why would Congress have wanted to frame this in a way that somebody could bring in new claims that would otherwise have been time bar. The reason for that is that the patent owner is in an IPR proceeding and there are it knows its patents and jeopardy and it allows either the same party if new claims are served against it or other parties to get involved in the proceeding and bring their claims against the same patent into the single proceeding that moves forward. So the patent owner has all of the challenges that all parties have against its patent resolved in the single proceeding and the reason that we think that Sony can join into its own proceedings because the statute just says any person who properly files a petition and the way we read it that allows other parties in the way Senator Kyle in the legislative history says it allows other parties to bring in new issues. And if other parties can bring in new issues the statute is ambiguous as to whether or not the same party can and we've interpreted it in a way that allows. Who's the way that's been doing this interpreting? It's been interpretation through the board by the agency. I wonder where does the board give an interpretive authority? The director has the board and by the board here I mean you know the 8 million possible three judge panels plus how many other five judge panels that resolved after the director or his or her delegate decides she doesn't like the result of the original path. So the director has delegated the authority to decide institution decisions to the board and in that to get to your honors earlier question about aloha. It's especially appropriate in the situation that the director be able to make sure that her policy judgments are enforced by the board. So it's particularly appropriate in a situation like this where the director has the ultimate authority. What happened to another board tomorrow yesterday decides that a different life. If another panel were to decide. You're bound by the interpretation given by the particular panel that decided this case right now the none of these decisions has been made presidential at this point. I mean you know of of because I don't at this point know of any other individual adjudicatory multi-member panel board decisions outside the PTO context where non-presidential decisions have been given. And I'm not aware of any cases where non-presidential decisions have been given several different. But I know there are cases that were non-presidential decisions have been given several different but I think just to Rada's point is. Well those cases involve multiple entities that could make the decisions. Right. And it seems a little bit peculiar given the sheer number of permutations of three judge panel opinions that Congress meant to delegate to each one of those the ability to interpret its statutes. And particularly where it hasn't done so through a process that makes it binding on the agency. I think that needs suggests that whether or not a particular decision is made presidential does not matter in the Chevron inquiry as long as the agency does in certain circumstances consider its decisions binding. And there are presidential decisions the board is. But here there's no dispute these aren't binding on anyone. That's that's correct these these this decision. Okay so what kind of difference are you advocating to give to these individual non-presidential board decisions? Well first of all I'd say that our position is that this court last year's decision to review the decision at all. So there's no question of the level of difference it should give. But I think the agency is showing that it is in fact working using its best efforts to make to speak with one voice and to have. What kind of decision is that Congress sort of said how the director is supposed to speak with with with one voice. But through a delegation of you know initial decision making authority to any number of possible three member panels of APJs none of whose decisions is binding on on anybody else without notice and comment rulemaking or any other formal process. That's a little odd. It may be a little odd your honor and I would point to Microsoft proxy con which says that even if it is in fact a little odd it is an appropriate thing for the agency to do is for case by case of education reach the result it wants to read. Yeah but we're talking here about the level of difference in the off the position of the government respect to what the difference is owed to this particular board decision. Assuming we can review assuming what's revealed what level of difference is owed to this particular panel's decision of respect to what joined or mean. Well I understand yes from Zardim and is is conceding that Chevron deference would apply unless in its view the agency has been acting very inconsistently and my response to that argument is that we agree that Chevron deference should apply and we think that the agency is doing its very best to speak with one voice. And there's really only one outlier decision the skyhawk decision and there are over 20 decisions involving joined or were there any time there has been a seeming other outlier you've engaged the power to reconfigure the panel so as to get the result you were. Yes you are the the you don't see a problem with that

. You're bound by the interpretation given by the particular panel that decided this case right now the none of these decisions has been made presidential at this point. I mean you know of of because I don't at this point know of any other individual adjudicatory multi-member panel board decisions outside the PTO context where non-presidential decisions have been given. And I'm not aware of any cases where non-presidential decisions have been given several different. But I know there are cases that were non-presidential decisions have been given several different but I think just to Rada's point is. Well those cases involve multiple entities that could make the decisions. Right. And it seems a little bit peculiar given the sheer number of permutations of three judge panel opinions that Congress meant to delegate to each one of those the ability to interpret its statutes. And particularly where it hasn't done so through a process that makes it binding on the agency. I think that needs suggests that whether or not a particular decision is made presidential does not matter in the Chevron inquiry as long as the agency does in certain circumstances consider its decisions binding. And there are presidential decisions the board is. But here there's no dispute these aren't binding on anyone. That's that's correct these these this decision. Okay so what kind of difference are you advocating to give to these individual non-presidential board decisions? Well first of all I'd say that our position is that this court last year's decision to review the decision at all. So there's no question of the level of difference it should give. But I think the agency is showing that it is in fact working using its best efforts to make to speak with one voice and to have. What kind of decision is that Congress sort of said how the director is supposed to speak with with with one voice. But through a delegation of you know initial decision making authority to any number of possible three member panels of APJs none of whose decisions is binding on on anybody else without notice and comment rulemaking or any other formal process. That's a little odd. It may be a little odd your honor and I would point to Microsoft proxy con which says that even if it is in fact a little odd it is an appropriate thing for the agency to do is for case by case of education reach the result it wants to read. Yeah but we're talking here about the level of difference in the off the position of the government respect to what the difference is owed to this particular board decision. Assuming we can review assuming what's revealed what level of difference is owed to this particular panel's decision of respect to what joined or mean. Well I understand yes from Zardim and is is conceding that Chevron deference would apply unless in its view the agency has been acting very inconsistently and my response to that argument is that we agree that Chevron deference should apply and we think that the agency is doing its very best to speak with one voice. And there's really only one outlier decision the skyhawk decision and there are over 20 decisions involving joined or were there any time there has been a seeming other outlier you've engaged the power to reconfigure the panel so as to get the result you were. Yes you are the the you don't see a problem with that. You're out of the the director is trying to ensure that her policy position is being enforced by the director is not given a due to good to authority right under the under section six of the statute that gives it to the board right. And you're the director's a member of the board but you're you're right after the after the panel is chosen I'm not sure I see the authority there to to engage in case specific re adjudication from the director after the panel has been selected. Well that's correct the once the panel has been set it has the G Victoria authority and the director has until until in your view it's reset by adding a few members who will come out the other way that's correct and we believe that's what how do you determine how who determines whether a decision is I mean if a decision would designated as presidential then all other board has to be bomb by right yes you're who makes that determination. It is a somewhat complicated process where the board holds a vote and it has to someone has to bring it to the board's attention it can be the board itself or someone from the outside requests that a decision be made presidential. What was the one I wouldn't the P.T.L. make some of these decisions presidential which seemed to rest on broadly applicable issues such as joiner. Why why are we faced with non-presidential decisions on this that kind of issue. I think that the agency is considering making more decisions presidential it's a slow process. Well does the director have authority to do that does the chief administrative law judge you mentioned a vote to 250 board judges get to vote on what's the potential yes you are and that's that's it's a complicated process and in the majority of the judges have to vote to make the decision presidential then the chief administrative patent judge has decides whether or not to forward the decision to the director and the director as the ultimate authority to decide whether a decision is made presidential and I think that's somewhat a lot of numbers it it it does seem somewhat commercial but in the absence of a presidential opinion then if a board comes up any way they go you're saying one board decides join to one way another board panel decides it another way and we're supposed to give it Chevron deference to everyone on them if that's the way it works out I mean either have either Chevron Deference applies in the circumstance or it does so if they're two different different opinions to coming out different ways on join there we're supposed to give Chevron deference to each of those. Your Honor it's it's a there's no God we know it's particularly complicated in this case because the the one the agency's position is that at the statute's ambiguous the judges who come out the other way say the statute is unambiguous and so Chevron wouldn't apply but so I don't need to challenge your what your honest question a lot more panels going on we make it one that says it's not ambiguous it's not ambiguous and we go the other way too. That's that that's possible your honor and what the agency would do in that case would be to exercise its authority to try to bring that panel decision in line with the agency's view. Can I ask you one other question I think I know the answer this is about 315 B has the director or any board panels said this is has to do with claim claim file versus patent. So if if an IPR challenges a particular claim whether the one year period can be measured from when that claim was alleged to be infringed in court even if infringement of the patent was more than a year ago. Yes, your honor the 315 B says the goes to the entire patent and so if any claim in the patent has been asserted and either the director ignore panels one way or the other have said well actually it makes more sense to construe that that timing rule to to run from the time that the challenged claims were asserted in litigation. No, your honor the board has consistently held that it is required that it's the facts the entire patent rather than claim by claim. And so under that view the fact that in the Delaware litigation filed by Yism there was no identification of claims is completely irrelevant to whether the 315 bar applies in fact the 315 B bar did in fact bar the 326 with the 326 and 326 and 327 they were simply out of time. Well, under the first sentence your honor is correct that the petitions were barred but the second sentence takes that away when a junior decision is made so it says the bar no longer applies when a junior decision is made. No, if they're in it for the first time. Thank you. All right, we went over for the other side so let's give you six minutes if you need it. Thank you, your honor. Just a few points

. You're out of the the director is trying to ensure that her policy position is being enforced by the director is not given a due to good to authority right under the under section six of the statute that gives it to the board right. And you're the director's a member of the board but you're you're right after the after the panel is chosen I'm not sure I see the authority there to to engage in case specific re adjudication from the director after the panel has been selected. Well that's correct the once the panel has been set it has the G Victoria authority and the director has until until in your view it's reset by adding a few members who will come out the other way that's correct and we believe that's what how do you determine how who determines whether a decision is I mean if a decision would designated as presidential then all other board has to be bomb by right yes you're who makes that determination. It is a somewhat complicated process where the board holds a vote and it has to someone has to bring it to the board's attention it can be the board itself or someone from the outside requests that a decision be made presidential. What was the one I wouldn't the P.T.L. make some of these decisions presidential which seemed to rest on broadly applicable issues such as joiner. Why why are we faced with non-presidential decisions on this that kind of issue. I think that the agency is considering making more decisions presidential it's a slow process. Well does the director have authority to do that does the chief administrative law judge you mentioned a vote to 250 board judges get to vote on what's the potential yes you are and that's that's it's a complicated process and in the majority of the judges have to vote to make the decision presidential then the chief administrative patent judge has decides whether or not to forward the decision to the director and the director as the ultimate authority to decide whether a decision is made presidential and I think that's somewhat a lot of numbers it it it does seem somewhat commercial but in the absence of a presidential opinion then if a board comes up any way they go you're saying one board decides join to one way another board panel decides it another way and we're supposed to give it Chevron deference to everyone on them if that's the way it works out I mean either have either Chevron Deference applies in the circumstance or it does so if they're two different different opinions to coming out different ways on join there we're supposed to give Chevron deference to each of those. Your Honor it's it's a there's no God we know it's particularly complicated in this case because the the one the agency's position is that at the statute's ambiguous the judges who come out the other way say the statute is unambiguous and so Chevron wouldn't apply but so I don't need to challenge your what your honest question a lot more panels going on we make it one that says it's not ambiguous it's not ambiguous and we go the other way too. That's that that's possible your honor and what the agency would do in that case would be to exercise its authority to try to bring that panel decision in line with the agency's view. Can I ask you one other question I think I know the answer this is about 315 B has the director or any board panels said this is has to do with claim claim file versus patent. So if if an IPR challenges a particular claim whether the one year period can be measured from when that claim was alleged to be infringed in court even if infringement of the patent was more than a year ago. Yes, your honor the 315 B says the goes to the entire patent and so if any claim in the patent has been asserted and either the director ignore panels one way or the other have said well actually it makes more sense to construe that that timing rule to to run from the time that the challenged claims were asserted in litigation. No, your honor the board has consistently held that it is required that it's the facts the entire patent rather than claim by claim. And so under that view the fact that in the Delaware litigation filed by Yism there was no identification of claims is completely irrelevant to whether the 315 bar applies in fact the 315 B bar did in fact bar the 326 with the 326 and 326 and 327 they were simply out of time. Well, under the first sentence your honor is correct that the petitions were barred but the second sentence takes that away when a junior decision is made so it says the bar no longer applies when a junior decision is made. No, if they're in it for the first time. Thank you. All right, we went over for the other side so let's give you six minutes if you need it. Thank you, your honor. Just a few points. First on claim construction so to start back with a slightly displaced. Everything in the patent is consistent with slightly displaced being approximately the distance between the human eyes. The only thing that Sony pointed to was the one sentence in the specification that refers to exaggerated stereo. But that in the context of the rest of this patent is just talking about exaggerated and being a little bit larger than the space of the human eyes. So there's nothing in the patent that would suggest that it could be many orders of magnitude larger than the human eyes. And so therefore the court should adopt our construction on that point. If the court were to adopt our construction slightly displaced before do not make any finding that a saw he would anticipate under that construction. And so claim three of the 003 patent would be valid under our construction. And there's a similar circumstance with respect to claims 20 and 37 of the 284 patent again under our construction. A saw he was the only basis for rejecting those claims itself our construction is accepted. Those lines would be valid. What about the threshold issue to talk to me about the robot reference first. In point to me where that is issue girl. No, there's some line in your at the end of your patent. I think that you first to computers and robots. Right. So it's a column 14. I believe. Yeah, in the other. Yeah, I'll agree. I'm John 1343. A few. The Comfort team. Starting at line 14

. First on claim construction so to start back with a slightly displaced. Everything in the patent is consistent with slightly displaced being approximately the distance between the human eyes. The only thing that Sony pointed to was the one sentence in the specification that refers to exaggerated stereo. But that in the context of the rest of this patent is just talking about exaggerated and being a little bit larger than the space of the human eyes. So there's nothing in the patent that would suggest that it could be many orders of magnitude larger than the human eyes. And so therefore the court should adopt our construction on that point. If the court were to adopt our construction slightly displaced before do not make any finding that a saw he would anticipate under that construction. And so claim three of the 003 patent would be valid under our construction. And there's a similar circumstance with respect to claims 20 and 37 of the 284 patent again under our construction. A saw he was the only basis for rejecting those claims itself our construction is accepted. Those lines would be valid. What about the threshold issue to talk to me about the robot reference first. In point to me where that is issue girl. No, there's some line in your at the end of your patent. I think that you first to computers and robots. Right. So it's a column 14. I believe. Yeah, in the other. Yeah, I'll agree. I'm John 1343. A few. The Comfort team. Starting at line 14. It's that paragraph. Yeah. And so what this is talking about is it's it says it will be appreciated that systems constructed in accordance with the invention. So what that tells us is okay, these examples are going to be consistent with everything we've said previously in the pound. It says okay for these. The invention can find utility in a number of applications that lists the applications. Many of the. I think I know. Yep, you do with computer video games. What do you do with robot? So I would say it's if you have a robot where you've got a camera on the robot and you know an operator is operating the robot. But wants to see wants to look at what the camera is displaying. So you can think of the Mars rover, for example, that's a robot. That's going around the surface of Mars and you know using the technology in this patent you could display. So you're contemplating that the robot controller at his computer screen has the you know the red and green glasses on. Yep, that's right that the robots. Is that wouldn't it that that seems implausible. I think I mean some reason to think that's possible. I would say in the context as opposed to the robot with single camera or two. Is is doing this and getting depth perception. I would say that in the context of the rest of the past that's plausible because the rest of the patent is all talking about human vision. And so you know when the sentence is preceded within accordance with the invention you want to try and read these examples to the extent possible to be consistent with the rest of the patent. The rest of the patent talked about vision. Moving to the jointer issue. So just following up on the point you had raised initially just to run to about consolidation

. It's that paragraph. Yeah. And so what this is talking about is it's it says it will be appreciated that systems constructed in accordance with the invention. So what that tells us is okay, these examples are going to be consistent with everything we've said previously in the pound. It says okay for these. The invention can find utility in a number of applications that lists the applications. Many of the. I think I know. Yep, you do with computer video games. What do you do with robot? So I would say it's if you have a robot where you've got a camera on the robot and you know an operator is operating the robot. But wants to see wants to look at what the camera is displaying. So you can think of the Mars rover, for example, that's a robot. That's going around the surface of Mars and you know using the technology in this patent you could display. So you're contemplating that the robot controller at his computer screen has the you know the red and green glasses on. Yep, that's right that the robots. Is that wouldn't it that that seems implausible. I think I mean some reason to think that's possible. I would say in the context as opposed to the robot with single camera or two. Is is doing this and getting depth perception. I would say that in the context of the rest of the past that's plausible because the rest of the patent is all talking about human vision. And so you know when the sentence is preceded within accordance with the invention you want to try and read these examples to the extent possible to be consistent with the rest of the patent. The rest of the patent talked about vision. Moving to the jointer issue. So just following up on the point you had raised initially just to run to about consolidation. I would say I would say again you know the board didn't reference consolidation as the basis for what it was doing here. And so the Chenery doctrine would really kick in and prevent this court. Well no, you know it is Chenery doesn't prevent upholding a decision unless upholding it would require the court to make some judgment committed to the agency some factual or discretionary judgment. If it's perfectly clear and I think you can see that you didn't challenge the institution. It's or you didn't challenge the institution. You can see I think at some place that you that they could have consolidated them. Then it I don't see what act of discretion of the board or PTO the director whoever over there would be interfered with by saying what they did here was an unreviewable institution together with consolidation. So we don't need to get to the jointer issue. I think that's incorrect your honor because the board so the reason we didn't challenge institution. Frank lays because if the board wasn't able to join these proceedings it couldn't have instituted the second set of IPRs. So if the board's basis for instituting the IPRs was to say oh well we have authority under this jointer provision. If this court disagrees with the interpretation of the jointer provision I would say it has to send it back to the agency to read decide the institution question under the proper law. Well I was here objection to jointer before the agency. It was a discretionary type of objection so we basically said it would prejudice us because Sony's petition was too late and there was the co pending district court litigation. So it was an appeal to the director's discretionary ability not to join the proceedings based on the facts of this case. Another point to Toronto that you had made just about institution and jointer so the jointer statute does talk about joining a party to that interparties review. And so I would suggest that that's consistent with the idea that jointer the jointer statute doesn't really contemplate a second institution at all. It just contemplates adding a party to the committee. Can I ask under either under the statute or the regulations if a party is joined or even I guess if a party is not joined yet I'm not sure. Tell me if it makes any difference. Can claims that were not specified in the institution decision be added to the review itself a trial as it's called? No, just Toronto. What is a statute or a regulation or both that says the institution decision fixes exactly those claims that will be and can be the subject of the final written decision. I don't know that off the top of my head. My guess would be looking at the statute

. I would say I would say again you know the board didn't reference consolidation as the basis for what it was doing here. And so the Chenery doctrine would really kick in and prevent this court. Well no, you know it is Chenery doesn't prevent upholding a decision unless upholding it would require the court to make some judgment committed to the agency some factual or discretionary judgment. If it's perfectly clear and I think you can see that you didn't challenge the institution. It's or you didn't challenge the institution. You can see I think at some place that you that they could have consolidated them. Then it I don't see what act of discretion of the board or PTO the director whoever over there would be interfered with by saying what they did here was an unreviewable institution together with consolidation. So we don't need to get to the jointer issue. I think that's incorrect your honor because the board so the reason we didn't challenge institution. Frank lays because if the board wasn't able to join these proceedings it couldn't have instituted the second set of IPRs. So if the board's basis for instituting the IPRs was to say oh well we have authority under this jointer provision. If this court disagrees with the interpretation of the jointer provision I would say it has to send it back to the agency to read decide the institution question under the proper law. Well I was here objection to jointer before the agency. It was a discretionary type of objection so we basically said it would prejudice us because Sony's petition was too late and there was the co pending district court litigation. So it was an appeal to the director's discretionary ability not to join the proceedings based on the facts of this case. Another point to Toronto that you had made just about institution and jointer so the jointer statute does talk about joining a party to that interparties review. And so I would suggest that that's consistent with the idea that jointer the jointer statute doesn't really contemplate a second institution at all. It just contemplates adding a party to the committee. Can I ask under either under the statute or the regulations if a party is joined or even I guess if a party is not joined yet I'm not sure. Tell me if it makes any difference. Can claims that were not specified in the institution decision be added to the review itself a trial as it's called? No, just Toronto. What is a statute or a regulation or both that says the institution decision fixes exactly those claims that will be and can be the subject of the final written decision. I don't know that off the top of my head. My guess would be looking at the statute. These petitions dress these things claim by claim. And so the board and its institution decisions looks at things claim by claim. And so I suspect we would have a statutory argument that you know it's a claim the let it is assessed claim by claim generally. And so the board. Right. The question is whether whether put aside the jointer situation. Whether if I file a an IPR and the director says right I'm going to institute it on claim to and then as we go along he says we're going to add claim three. Right is that is I don't know I would say you know the director didn't do that in this case. And so you know this case would not implicate that question. Finally if I could just say on jurisdiction I just stress that this court has mandamus authority to review what the board did here. And I think all the questions raised about the fluctuating board positions and the various non-presidential decisions and expanded panels etc. Really show why this court needs to review this issue. It's a pure question of law. There should be a determinative construction of the statute and the court can use its mandamus authority to do that. Thank you. How many of you have had a comment? You have any of you? I don't have that much of a sense to check. I mean I would say you know there's been four or five decisions now out of the board on this issue fluctuating various ways. So you know it does come up. It does appear to come up a fair amount but you know I suppose there are thousands of IPRs as well. So you know those would be the names. We thank all the parties in the cases of submit. Thank you.

The first two cases this morning, 15, 1342 and 15, 1343 are combined. We appreciate the parties cooperation in that regard. And we'll hear from Mr. Countryman first. Please. Thank you, Your Honor. May I please the court? There are several issues in these appeals. So I'd like to focus on just a couple in my time here today. First, I'd like to deal with two errors with respect to the OO-3-PAND, one of claim construction and the other with respect to the boards analysis of the ASAHI reference. I'd then like to move to the joiner issue and I'll plan to rest on the briefs for the other issues unless the court has questions about those. So starting first with claim construction on the OO-3-PAND, the board's error here was that it ignored an explicit definition in the specification. All the OO-3 claims require a stereoscopic panoramic mosaic image pair. The specification of the OO-3-PAND. Can I ask you to ask this? I suppose for purposes of this question, that I agreed with you that the board's claim construction was wrong, not even necessarily because that sentence is a definition, but because it very strongly informs the proper reading of the claim language. Nevertheless, why didn't the board in fact make findings under the correct construction that we do support its ruling? So there's one issue in particular in that regard, Your Honor, with respect to the ASAHI reference. So ASAHI was the only reference that was used to invalidate dependent claim three. And there, the board made no finding that under our construction that the images were recorded from slightly displaced positions. Okay. So that's the one piece that I'm not sure that unless you get a definitional characterization out of that sentence that would otherwise be supported. Well, that's a different claim construction, right? The slightly different. Slightly different, right? I would say it's part of this, Your Honor, because it's part of the definition of stereoscopic images. S stereoscopic images have to have two characteristics. They have to be recorded from slightly displaced positions. And you say it has to be the distance between the human eyes, right? That's correct. Suppose we reject that. Where are we then on the alternative construction? So then the issue would be with respect to ASAHI were the board's findings that it provided a perception of depth supported by substantial evidence. And then likewise with respect to the other references. And then with respect to the Calakita reference, the issue would be did the board make findings to support the idea that it was provided a sense of depth for the entire scene. And in that regard, I think the problem was that the board really engaged in a 103 type analysis. When the rejections here are the basis for an institution here was 102 anticipation. So with respect to the ASAHI reference, the board didn't identify any expressed disclosure in ASAHI where it showed images that provided the sense of depth to the human. So the ASAHI or Calakita? ASAHI or Calakita. And so what the board did was it looked to Sony's expert testimony that well adjustments could be made to the images. And if you adjusted them, then you would supposedly get a perception of depth. So the issue is whether adjustments are precluded. That's correct, Your Honor. And we're talking about adjustments that aren't done by the process, right? That's correct. Yeah. And Calakita is actually a good example of that because Calakita in particular talks about making adjustments with humans, you know, 10 research personnel there, were needed to adjust the images in order to give a sense of depth for the entire scene. And that doesn't your construction depend on the words such that so that you read the display step in the 264 as requiring that this be done by the processor. So there's a couple of things on that. That's one of our arguments on the 284, Pat, and Your Honor. The other argument is that the claim language itself links the mosaics of the scene together in those two elements. So the processor talks about generating a plurality of mosaics. And then the display element talks about displaying the mosaics. And so our point would be that when the claim says displaying the mosaics, it has to be referring to the same mosaics that were generated by the processor. Well, it says and displays them so as to provide a sense of depth of the scene. That's where the depth of the scene comes in under the display limitation, not only the processing limitation, correct? I don't agree with that, Your Honor, because the images themselves have to be able to provide that sense of depth. So all the display is doing is it's taking the images that the processor's already generated, and it's just displaying them so that they have a sense of depth. But you still have to have images that are capable of being displayed, capable of providing a sense of depth when they're displayed. And the problem with this prior art is that it doesn't disclose images that are capable of providing that sense of depth because it's not for showing stereo. It's for calculating these types of three-dimensional maps. And so, for the adjustments to the images. Is that really true of Calakita? I mean, I thought that the board's description of Calakita reflecting what it said was that it pointed to the need for adjustment in certain instances, but that in other instances, images created by the Calakita system would, in fact, meet that kind of common sense definition that they are capable of providing a sense of depth to the scene as a whole. Yes, so the board did distinguish those two cases in Calakita with respect to a latter one. The issue was that it was talking about instances in which the camera was far away from the scene, and so there wouldn't be any sense of depth to perceive, because the objects would be so far away that when you're looking at the image. Here's what I guess I'm remembering, and I don't have it in front of me. I thought, roughly speaking, there were three things Calakita was describing. One, a set of images for which nothing would need to be done. And then it says, and then there are two instances in which you might need to do something. And I thought the distance one was one of the two things for which you might need to do something, but that the first group, Calakita is described by the board as disclosing images that you don't have to do anything for, and still a viewer when viewing would get a sense of depth of the scene as a whole. And so our view on that particular part of Calakita is that the viewer wouldn't get a sense of depth because the camera is so far away from the images that there wouldn't be any depth to perceive. So that was the problem, like Calakita was saying was, well, I don't need to adjust in that situation because there's no need to make the adjustment because no one can see depth anyway. There's no depth to perceive. How do we know that? I mean, that's your interpretation of the reference, are you putting in a declaration? That's our interpretation of the reference, Your Honor. But the reference doesn't say what you just said. I think it does, Your Honor, because it's talking about these two situations. And I think in that, it's contrasting the situation in which the camera is relatively close. And in that case, it talks about needing to make the adjustments as opposed to the other situation in which you don't need to make the adjustments. We would say it's implicit in the reference that that's talking about the situation in which the camera is far away. And Sony's expert had admitted that there are these situations in which you have this degenerative sense of depth because the camera is so far away that you can't perceive any depth. And Sony's expert, in particular, talked about that, situation just generally about this degenerative sense of depth in his declaration, his second declaration at A1575. And then he again mentioned it in his deposition testimony at A1806-07. So that's our view, Your Honor, is that if the court goes with our claim construction on the OO3 pan, then in particular, the slightly displaced, that that is an instance in which the board did not make any findings under our construction, and that at least with respect to claim three, the anticipation line you would have to be set aside. And even on the slightly displaced, your view, even if we were to accept that as part of the claim construction, your view then would be that the board could not read or apply slightly displaced to the helicopter motion where the 100-foot or something, the distance between shots is pretty slight compared to the distance to the object being photographed. That's right, Your Honor. I would characterize it more as an issue of construction in the first instance as opposed to application of the construction, because, of course, of its issue of construction, it's a question of law. And really, the question is what's the scope of these patent claims? No one is disputing the content of a sasi. It's really a question of what does slightly displaced mean in that definition. And we would say that that's an issue of claim construction. It's reviewed de novo. And the patent repeatedly talks about displacements that are approximately the distance to the human eyes. Figures 1A and 1B show that. There's a couple instances in the specification, which talk about that. The board's only basis in the patent for going elsewhere was there's a sentence that talks about exaggerated stereo account 7. But even in that instance, you're talking about, okay, maybe something that's a little broader than the human eyes. So the human eyes are about 2.5 inches apart. And a sahi were talking about distances when these images are being recorded from this helicopter that are, you know, tens or hundreds of feet apart. And so you're talking about a three-order of magnitude difference. In our view, that's not slightly displaced either under just the ordinary sense of the word slightly or how it's used in this patent. And the board's error was that it went to Sony's expert and to some of his extrinsic evidence to look and come up with a different definition of slightly displaced. But as a legal matter, the court and the board have to start with the intrinsic evidence. And here where the intrinsic evidence is clear and shows that it's just approximately the displacement between the human eyes, it was improper for the board to go to Sony's extrinsic. Q. Is there something in this specification and maybe I'm misremembering this, where in the description of the, I don't know, the radius of the visual circle, is that the term? S. Yes, yes. Where it says ordinarily, that's about the distance between human eyes, but then there's a sense that says, but in fact, it can be larger. Yes, Your Honor, that's the sense of column seven. But what it says is you can, if you want exaggerated stereo, you can make it larger. But in the context of that paragraph, what it's saying is that, okay, you can make it a little bit larger than the human eyes, but you can't make it, there's nothing in the patent that suggests that you would make it many, many, many orders of magnitude larger. But I think the suggestion is that it is slightly displaced relates to the distance. That's right. And I think we would say that just the ordinary meaning of slightly means that it's got to be in the context of this patent, approximately, the distance between the human eyes. Q. Can I switch topic and ask you some things about the jointer? S. Sure. Do I understand correctly that when the petitions that resulted in the 326 and 327 IPRs, I guess the follow on petitions were filed, in your opposition to those, you did not say, these are untimely under 315B and therefore they should not be instituted. I couldn't find that and that what you did was oppose jointer, but it didn't oppose institution. That's correct, Your Honor. We didn't oppose jointer. I think that we did oppose jointer. We didn't oppose institution. So, to think, here's what I'm trying to figure out how several things fit together here. If institution is unopposed and is unreadurable, is unreversible, if only because it was unopposed, then why could not the board have gotten to exactly where it got to here by simply consolidating the proceedings? Consolidating them under 315D nevermind 315C. I don't understand why there's any need to discuss in this particular case, what is putting aside other waiver arguments, which I know exists, scope of 315C. Consolidation of an unreviewable institution proceeding gets to the same place, doesn't it? Well, consolidation isn't part of the exception to the one-year bar, so I think that's what I would say, the board would be acting ultra-v-rays if it would have tried to consolidate the proceedings and then institute the 326 and 327 petition. I assume you only consolidate after you institute, but I'm taking as a premise now that the 326 and 327 were instituted and we can't reverse that. For a variety of reasons, unreviewability, the fact that you didn't oppose institution. Right, 226 and 327. So, taking that as a given for purposes of this question, why isn't what? At a bottom line, the board did hear was to consolidate these two proceedings. I realized it didn't talk in those terms, or it's not argued in those terms, but I'm puzzled about why that isn't what the net result is here, wholly apart from any implicit or explicit limitation in 315C about joined. Right, so I mean, I guess two things. One is you noted, I mean, the board didn't say it was consolidating, so it was using jointer. Two, I would say even in the situation in which, you know, if the board were to say it was consolidating, we could have sought mandamus at a minimum. And so I would say that the court would be able to review that under its mandamus jurisdiction for many of the same reasons that we've explained here. You know, if you have IPR traditions that are clearly filed after the one-year time bar, there's no dispute about that. It would seem like the conditions for mandamus would be satisfied. The right to the right would be clear and indisputable. There would be no alternative remedies because, of course, there wasn't a direct appeal available, and it would be appropriate under the circumstances because the board would just be flouting a statutory command. But I mean, I think in close, I would just not leave open the door that may be mandamus, that this would ultimately be unreviewable, leaving open the door for possibility of mandamus in certain circumstances, but we haven't yet decided that mandamus would necessarily yield, right? That's right. Chief Judge Prost and I would say that this is the case that mandamus would be appropriate. Well, that suggests that you're giving up on the appealability argument in the light of a Chadise. It doesn't, Your Honor. We believe that a Chadise is distinguishable for a couple reasons. The main one being that this is the interpretation of the Joinder statute is generally applicable, so we're not making something that's applicable to just. But this is a close-out of Chadise in the sense that if the thing had been timely filed, there wouldn't be any problem. In those cases suggests that at a minimum, the appealability more applies where you could if you filed earlier, you would have been properly there. So this is just like that, isn't it? I disagree, Your Honor, because the challenge here is not the institution or the one-year bar, it's to the Joinder statute. And here we're making a generally applicable point about the Joinder statute that you're not allowed to join claims that the Joinder statute just permits Joinder or Hardee. How is that different than the Chadise, the one-year bar statute? What makes that different? Because it goes to the board's power to act in the manner in which it did in this case. So the board could not have put in 326 and 327 petitions if it hadn't joined them to this proceeding. The Joinder statute was a necessary decision underlying what the board did to get to its final written decision. Well, what the Joinder statute does is we don't have to worry about timeliness if there's a Joinder. And we said timeliness is an institution decision which we're not going to review. But what we would say that this Court to do, Your Honor, is just decide that the board didn't have the power to join and then remand for the board to look at institution in light of, again, in light of the fact that it doesn't have the power to join these proceedings. And then it would ultimately be the board. And the board argument about Joinder is based on the fact that this was the same person and not a different person. Two things, Your Honor. Yes, one is that. And then the other is that the statute doesn't specifically provide for the Joinder claims. It just provides for Joinder or Cardi. And so there's no statutory authorization for what the board did with respect to Joinder here. If it were a different party, could the different party be joined along with different claims? No, Your Honor. Because Section 315 see only speaks to Joinder of claims and so on that. Respect its language parallel federal rules of Civil Procedure 19, which talks about Joinder of parties. There's a different federal rule of Civil Procedure that talks about Joinder of claims. There's no statutory authorization for the board to join claims. Can I think I know the answer to this? But this is one of those fairly infrequent cases in which what we'll call the board in one or another proceeding arrived at a policy position through what might be considered panel stacking. You haven't challenged that, right? Under either APA or statutory or due process grounds of the sort that we're talked about a bit in the dissent in the past. Right. We've nod in this case mainly because it wasn't presented in our case below. But I wouldn't say when you're thinking about what kind of deference if any to give to the PTO, I think it speaks to the fact that the court needs to look at the statute to know, and not give any deference chevron or otherwise to the PTO because the PTO is balancing from position to position. There's not really a reasoned agency approach to this. I see I'm running out of time. No, that's fine. Save that and we'll be stood to a additional one that's currently done. Thank you. Okay, Mr. Handle. Good morning, Your Honours. May I please the Court? As it turns out, the priorities that I set for the limited time I have turn out to be not the same as the priorities that Mr. Countryman sent out, which is basically to address a couple of claim-construction issues. The first one, of course, being the Board's final construction of stereoscopic image pair, and also to address the construction of slightly displaced positions in the Board's preliminary construction, which I should point out, I think as the Board has noted, the Board made findings of unpackability under both the broader construction in the final decision and also the narrower construction in the preliminary decision. And so even if the Court were determined that the Board aired in construing stereoscopic image pair in the final construction, the Board's alternative findings are service supported by substantial evidence and the Board should be affirmed nevertheless. The third priority I have, of course, is to address joineder. So going first to the issue of stereoscopic image pair, what happened was the parties basically agreed on a construction. The Board made a determination in the institution decision that that construction was consistent with the ordinary meaning, the Board looked at a couple of dictionary definitions. And then when time came for the evidence to be presented and for the oral hearing to occur, the Board was confronted with a different ordinary meaning that in fact was advocated by, by isn't, just some argue the broader construction in stereoscopic image. And the experts for aside supported that. So the Board confronted with that and said, okay, that is the proper construction. Here you go. I may not be remembering the details. I thought that the gist of the disagreement here is that the Board adopted a construction that would allow images to be stereoscopic if they would not in fact be seen as having depth perception by human eyes, by human being with two eyes in the normal place. But might be viewed that way, whatever viewing means in this sentence, by a computer. And that the gist of the argument on the other side is that both the sentence that they want to call a definition, but in any event the whole spec as a whole tells you in the context of this patent that's ridiculous. This is about what human beings would see. That is your position, but what's wrong with that? Why is that not right? Well, certainly the backdrop is that, starting from first premises, the interpretation of a term is from the viewpoint of a person who was given the order. So the person who was given this in the context provided by the whole document and the whole document is about what human eyes will see. Well, let's, let's, certainly the embodiment that's discussed in the only embodiment that's discussed is an embodiment in which two images are going to be generated that are for human viewing. No question about that. The board did note that at the tail end of the specification where typically patent owners are talking about an large perspective. If this would be useful for computer games. Or in robots. And robotics, the only example of the board had of robotics was the party's presentations related to issue of euro, which has to do with robot navigation. And so that in that context, you know, the primary function is for the robot to measure distances. In the board, I think properly viewed that as an example of a broader usage of the term that goes beyond what's appropriate for human viewing. But this is only under this alternative construction, right? Well, this is under, right, the board. In other words, the board did address the claims under the assumption that it requires human depth perception and concluded that that was satisfied by one under some circumstances. You would get it anyway in the prior art in two because in the prior art, you get it as a result of human manipulation and that that is permissible under the clients. Correct. And we spent most of our brief addressing that variation and pointing that out. If I can just make one more point on the board's final construction and support of it. Basically, the board looked at the claim one, which is the only one about which there was argument. And identified as a system claim that has two elements. And as a strip generator and a mosaic and misgenerator. And within the mosaic image generator element, it basically says you get two mosaics. And those mosaics comprise the stereoscopic image pair, providing a stereoscopic image of the scene as recorded over the path. So the claim itself speaks a broader construction of stereoscopic image pair. Particularly, stereoscopic image pair is the outcome of the functioning of these two elements. They comprise a system. And so the claim is certainly consistent with the broader interpretation. It's only if one goes to the specification and one makes a determination that there's a special definition that deposits from the agreed upon ordinary meaning that you get to this notion that you have to have images for human viewing and so on. So if I could now go to the second part of the claim construction, which is this slightly displaced, slightly displaced positions is part of the board's preliminary construction. And here, two things as a threshold matter. First, as I said, it's the meaning that that term would have to person skilled in the art knowing what they know and what they bring with them into the analysis and their reading of the patent. And secondly, it's the broadest reasonable interpretation of that. So here, we have the board looking at the patent specification and noting that the patent itself says that the diameter of the viewing circle, which is basically the displacement of the two viewing positions, can be enlarged for exaggerated stereo. It doesn't place any limitation on that. It says it doesn't say as Mr. Controman suggests it only be enlarged a little bit. But it also doesn't say it can be enlarged for purposes of unexaggerated stereoscopic view. Does it? I'm not sure what unexaggerated means. Well, what do you think exaggerates? Well, the board, the board had evidence about that. And this goes to my point that this is the viewpoint of some of the skilled in the art. The board received evidence about what some of the skilled in the art knows about how to create stereoscopic images that are viewable and will provide a sense of depth to the human. And in particular, the board learned about the concept of disparity, which basically is a relationship between the distance between the photographic positions and the distance of objects, and that disparity, therefore, a proper disparity can exist for humans to view a stereoscopic image pair with photographic positions that are widely displaced because that displacement is appropriate for the distance of the objects being photographed. Which doesn't have anything to do with the exaggeration? Well, exaggerating what it has to do with this, the Pat uses a term normal stereo. Normal stereo is the stereo that mimics the experience that a viewer would have in looking at a scene natively. Well, I'm trying to understand whether the exaggeration point is the same as the distance from the object point that you just made before. It's a different point in this specification. Well, what is what I'm trying to do is to explain what exaggerate in me. So in the context- But I'm going to tell me first, is it that are we talking about a single point in the spec or two different points? Well, we're talking about a single point in the spec where that concept is mentioned. But it's a single concept, and it's that the distance is related to the displacement. Yes, it's a place of naturalism. It refers to the ability to spread the displacement between the photographing positions for exaggerate stereo. And just to round out what that means, Mr. Barton, the photographer who testified had as an exemplar of that, he showed or testified about an image of two distant mountain peaks captured using cameras, as utter feet apart, much wider than the distance between human eyes. And if one looks at that using red cyan glasses, one will see a separation between the two peaks. And the separation of one's season looking at those images is not one one missing in looking at the scene natively. One sees a separation that one would not see looking at the scene natively because one's eyes on a hundred feet apart. So it creates a stereoscopic image that does not mimic the direct experience of your have and looking at the scene. That's what exaggerates stereo. That's what Mr. Dr. Gower testified about that. So that reference to exaggerating stereo is consistent with the evidence that the Lord received about what people skilled in the art and go about the technology creating these images. About a saahi. A saahi does in fact teach, disclose stereoscopic images that when viewed would provide a perception of that. The saahi says that under certain flight conditions, you generate the mosaics and the mosaics. Stereoscopic viewing is possible using the mosaics. And that's all that's required in the old three Pat, I think is Mr. Countryman said it's about the capability of the capture images if properly displayed to produce this perception of depth. That a saahi says stereoscopic viewing is possible. Dr. Darrell testified that once skilled in the art would understand viewing the refer to human viewing. And therefore a saahi does disclose images that provide a perception that when viewed. If the board does down your questions about that, I'd like to go on to the joiner at a higher level now. Pardon me. You said the board here on the board court. Thank you, your honor. About the about the joiner question, I agree with you judge Toronto that there was no. Below at the board level. There was no challenge to the institution decision with respect to the second petitions. There was a challenge to joining them with the first petitions on the basis that the director should not exercise this discretion because they were prolonging the proceeding and so on. These factors relating to the appropriateness. Can I just ask you, do you see any difference in between what the board ended up doing here? And what the board would have done had it simply said we institute. We interpret 315 B the timing rule a particular way. We now consolidate. I don't see any difference. I think I think the view point that your honor has expressed about what happened. Is is is is an appropriate is appropriate analysis. And there I mean I should I hope it's evident that one reason I'm asking is that it seems to me it's quite a lot of force to their join the argue. Everybody every lawyer who's passed, you know, the sixth week of first term civil procedure knows the difference between joining parties and joining claims. And this says joining parties. Yeah, but I can I address that. Please. Yeah, okay. So what I think is missing there is is following the join their statute talks about jointer of party uses those language and says any person who appropriately. I'm under three. Okay, so under three itself. Mr. countryman is suggesting that that that a second party let's say apple as a as a as a for instance. Piggy back on the Sony's and the petitions and they attack additional plans. Mr. countryman's point of view is that I'll be if they are a different party. They could not do that because the join their statute doesn't allow join your claims. However, if you look at the requirement of the join their statute and specifically that it requires that the petition. Satisfied the the requirements of 311. 311 is a preliminary examination of the merits of the petition. It requires a finding that there's a reasonable likelihood that at least one claim will be established to be on patent. So if you have an ongoing proceeding where the board is instituted and therefore has already made that decision with regard to the subject matter of the petition that precipitated it. Then what is the utility of the board looking at joining an additional party and examining whether or not they have met the threshold showing at least one claim is unpatable. Unless unless what's contemplated is that additional claims therefore additional issues can be added. Well, can I can I maybe I'm going to try to get at this a different way. If I'm right in my current working hypothesis that the consolidation provision allows the board to put together two proceedings that it thinks are sufficiently closely related that they should be litigated together. What is the role of 315 C? What does it add to that authority? Well, one thing clearly adds is that the a party who meets 315 C can be can be one for whom the time bar has already expanded. So how would that fit under the 315 C says something like the only parties that can join or ones that properly file petitions? Correct. And why doesn't why doesn't that preclude the out of time addition? Well, because 315 B says that the party is joining under 315 C. I see the property file. The property file is only properly under the other provisions not under 315 B. It's properly filed under it says under 311. Which is my point is to join the issues. So the out of the out of time petitioner can be joined even though you wouldn't have a consolidatable pair of timely proceedings. Correct. The out of time petitioner can be joined not just not just saying it can be joined not just standing in the time bar. Which is what's really fine say one more thing about I'm sorry. I think you know, I think that Katie seems to me a Katie's is dispositive that that the the challenge here really is to the time bar that they're saying these petitions were time bar. Katie's addresses the time bar says that the fact that the more made a determination that the time bar didn't apply that's not reviewable. And the because that's part of the institution decision and more over just looking at the other statute 319 319 is allows appeals a final decisions which in 318 a final decisions that relate to patent ability. So seems to me this is not a patent ability challenge when they're challenging joined or institution. Thank you. Thank you, Your Honor and May please the court. I agree with my friend from Sony that this court does not have jurisdiction to review the agency's decision to institute these the later filed IPRs. The yes and try to get around the Katie's case by saying that it is what is really being reviewed here is the final written decision as to claims that we're not in the proceeding until they were until the second petitions were instituted and they were the proceed. So just very basic is the office's position that may join a party to questions that may join a party can be the same party that's already instituted and is the office's position that may join a party necessarily or at least allows that additional claims will be asserted by that party. Yes, Your Honor, to both questions on the first question it says may join as a party any person who properly files a petition and well join as a party would suggest ordinarily that it's party jointer that's allowed but it does the statute goes on and the value and tells the director to evaluate the priority of the petition that's filed. Look at it and decide whether or not it's something that could be instituted and if so the director can join the proceedings and so it's. Can I just I'm trying to I think I'm maybe beginning to understand this. It seems to me and tell me why this is wrong that 315c is about jointer of parties to put an instituted review number one without instituting review number two. Because if you instituted review number two there'd be no role for the joiner join to provision everything could be consolidated so the only function of 315c is to allow a party whose second who's who's request to institute proceeding number two could be different party could be same party not not my point here does not in fact have that second one instituted otherwise it would all just be consolidating to. Perfectly properly instituted proceedings I think the 315 is a little bit circular and that he says only if you instig only if you join under 315c and 315c says you can. What he doesn't apply is that C does not require the second proceeding to be instituted only that it be one that the that the director determines meet the non timing requirements for institution right but it says that what it's the purpose of 315c is to let someone who is otherwise time barbed under 315b get into the proceeding and the director looks at that petition and decides whether it's institutable and although you're on the joint so the joiner here maybe even should not have been coupled with the institution of 326 and 327 proceedings. What role is played by the institution of the 326 and 327 here as opposed to simply joining Sony to the 318 of 218 to 19. The the joiner of the institution of the second petition allowed Sony to bring forward different arguments about different claims. That would otherwise be time that would otherwise have been time why would strikes me as odd that the statute would have done that. I mean I can understand joining apart who delayed in instituting who's who's challenging the same claims but why would Congress have wanted to frame this in a way that somebody could bring in new claims that would otherwise have been time bar. The reason for that is that the patent owner is in an IPR proceeding and there are it knows its patents and jeopardy and it allows either the same party if new claims are served against it or other parties to get involved in the proceeding and bring their claims against the same patent into the single proceeding that moves forward. So the patent owner has all of the challenges that all parties have against its patent resolved in the single proceeding and the reason that we think that Sony can join into its own proceedings because the statute just says any person who properly files a petition and the way we read it that allows other parties in the way Senator Kyle in the legislative history says it allows other parties to bring in new issues. And if other parties can bring in new issues the statute is ambiguous as to whether or not the same party can and we've interpreted it in a way that allows. Who's the way that's been doing this interpreting? It's been interpretation through the board by the agency. I wonder where does the board give an interpretive authority? The director has the board and by the board here I mean you know the 8 million possible three judge panels plus how many other five judge panels that resolved after the director or his or her delegate decides she doesn't like the result of the original path. So the director has delegated the authority to decide institution decisions to the board and in that to get to your honors earlier question about aloha. It's especially appropriate in the situation that the director be able to make sure that her policy judgments are enforced by the board. So it's particularly appropriate in a situation like this where the director has the ultimate authority. What happened to another board tomorrow yesterday decides that a different life. If another panel were to decide. You're bound by the interpretation given by the particular panel that decided this case right now the none of these decisions has been made presidential at this point. I mean you know of of because I don't at this point know of any other individual adjudicatory multi-member panel board decisions outside the PTO context where non-presidential decisions have been given. And I'm not aware of any cases where non-presidential decisions have been given several different. But I know there are cases that were non-presidential decisions have been given several different but I think just to Rada's point is. Well those cases involve multiple entities that could make the decisions. Right. And it seems a little bit peculiar given the sheer number of permutations of three judge panel opinions that Congress meant to delegate to each one of those the ability to interpret its statutes. And particularly where it hasn't done so through a process that makes it binding on the agency. I think that needs suggests that whether or not a particular decision is made presidential does not matter in the Chevron inquiry as long as the agency does in certain circumstances consider its decisions binding. And there are presidential decisions the board is. But here there's no dispute these aren't binding on anyone. That's that's correct these these this decision. Okay so what kind of difference are you advocating to give to these individual non-presidential board decisions? Well first of all I'd say that our position is that this court last year's decision to review the decision at all. So there's no question of the level of difference it should give. But I think the agency is showing that it is in fact working using its best efforts to make to speak with one voice and to have. What kind of decision is that Congress sort of said how the director is supposed to speak with with with one voice. But through a delegation of you know initial decision making authority to any number of possible three member panels of APJs none of whose decisions is binding on on anybody else without notice and comment rulemaking or any other formal process. That's a little odd. It may be a little odd your honor and I would point to Microsoft proxy con which says that even if it is in fact a little odd it is an appropriate thing for the agency to do is for case by case of education reach the result it wants to read. Yeah but we're talking here about the level of difference in the off the position of the government respect to what the difference is owed to this particular board decision. Assuming we can review assuming what's revealed what level of difference is owed to this particular panel's decision of respect to what joined or mean. Well I understand yes from Zardim and is is conceding that Chevron deference would apply unless in its view the agency has been acting very inconsistently and my response to that argument is that we agree that Chevron deference should apply and we think that the agency is doing its very best to speak with one voice. And there's really only one outlier decision the skyhawk decision and there are over 20 decisions involving joined or were there any time there has been a seeming other outlier you've engaged the power to reconfigure the panel so as to get the result you were. Yes you are the the you don't see a problem with that. You're out of the the director is trying to ensure that her policy position is being enforced by the director is not given a due to good to authority right under the under section six of the statute that gives it to the board right. And you're the director's a member of the board but you're you're right after the after the panel is chosen I'm not sure I see the authority there to to engage in case specific re adjudication from the director after the panel has been selected. Well that's correct the once the panel has been set it has the G Victoria authority and the director has until until in your view it's reset by adding a few members who will come out the other way that's correct and we believe that's what how do you determine how who determines whether a decision is I mean if a decision would designated as presidential then all other board has to be bomb by right yes you're who makes that determination. It is a somewhat complicated process where the board holds a vote and it has to someone has to bring it to the board's attention it can be the board itself or someone from the outside requests that a decision be made presidential. What was the one I wouldn't the P.T.L. make some of these decisions presidential which seemed to rest on broadly applicable issues such as joiner. Why why are we faced with non-presidential decisions on this that kind of issue. I think that the agency is considering making more decisions presidential it's a slow process. Well does the director have authority to do that does the chief administrative law judge you mentioned a vote to 250 board judges get to vote on what's the potential yes you are and that's that's it's a complicated process and in the majority of the judges have to vote to make the decision presidential then the chief administrative patent judge has decides whether or not to forward the decision to the director and the director as the ultimate authority to decide whether a decision is made presidential and I think that's somewhat a lot of numbers it it it does seem somewhat commercial but in the absence of a presidential opinion then if a board comes up any way they go you're saying one board decides join to one way another board panel decides it another way and we're supposed to give it Chevron deference to everyone on them if that's the way it works out I mean either have either Chevron Deference applies in the circumstance or it does so if they're two different different opinions to coming out different ways on join there we're supposed to give Chevron deference to each of those. Your Honor it's it's a there's no God we know it's particularly complicated in this case because the the one the agency's position is that at the statute's ambiguous the judges who come out the other way say the statute is unambiguous and so Chevron wouldn't apply but so I don't need to challenge your what your honest question a lot more panels going on we make it one that says it's not ambiguous it's not ambiguous and we go the other way too. That's that that's possible your honor and what the agency would do in that case would be to exercise its authority to try to bring that panel decision in line with the agency's view. Can I ask you one other question I think I know the answer this is about 315 B has the director or any board panels said this is has to do with claim claim file versus patent. So if if an IPR challenges a particular claim whether the one year period can be measured from when that claim was alleged to be infringed in court even if infringement of the patent was more than a year ago. Yes, your honor the 315 B says the goes to the entire patent and so if any claim in the patent has been asserted and either the director ignore panels one way or the other have said well actually it makes more sense to construe that that timing rule to to run from the time that the challenged claims were asserted in litigation. No, your honor the board has consistently held that it is required that it's the facts the entire patent rather than claim by claim. And so under that view the fact that in the Delaware litigation filed by Yism there was no identification of claims is completely irrelevant to whether the 315 bar applies in fact the 315 B bar did in fact bar the 326 with the 326 and 326 and 327 they were simply out of time. Well, under the first sentence your honor is correct that the petitions were barred but the second sentence takes that away when a junior decision is made so it says the bar no longer applies when a junior decision is made. No, if they're in it for the first time. Thank you. All right, we went over for the other side so let's give you six minutes if you need it. Thank you, your honor. Just a few points. First on claim construction so to start back with a slightly displaced. Everything in the patent is consistent with slightly displaced being approximately the distance between the human eyes. The only thing that Sony pointed to was the one sentence in the specification that refers to exaggerated stereo. But that in the context of the rest of this patent is just talking about exaggerated and being a little bit larger than the space of the human eyes. So there's nothing in the patent that would suggest that it could be many orders of magnitude larger than the human eyes. And so therefore the court should adopt our construction on that point. If the court were to adopt our construction slightly displaced before do not make any finding that a saw he would anticipate under that construction. And so claim three of the 003 patent would be valid under our construction. And there's a similar circumstance with respect to claims 20 and 37 of the 284 patent again under our construction. A saw he was the only basis for rejecting those claims itself our construction is accepted. Those lines would be valid. What about the threshold issue to talk to me about the robot reference first. In point to me where that is issue girl. No, there's some line in your at the end of your patent. I think that you first to computers and robots. Right. So it's a column 14. I believe. Yeah, in the other. Yeah, I'll agree. I'm John 1343. A few. The Comfort team. Starting at line 14. It's that paragraph. Yeah. And so what this is talking about is it's it says it will be appreciated that systems constructed in accordance with the invention. So what that tells us is okay, these examples are going to be consistent with everything we've said previously in the pound. It says okay for these. The invention can find utility in a number of applications that lists the applications. Many of the. I think I know. Yep, you do with computer video games. What do you do with robot? So I would say it's if you have a robot where you've got a camera on the robot and you know an operator is operating the robot. But wants to see wants to look at what the camera is displaying. So you can think of the Mars rover, for example, that's a robot. That's going around the surface of Mars and you know using the technology in this patent you could display. So you're contemplating that the robot controller at his computer screen has the you know the red and green glasses on. Yep, that's right that the robots. Is that wouldn't it that that seems implausible. I think I mean some reason to think that's possible. I would say in the context as opposed to the robot with single camera or two. Is is doing this and getting depth perception. I would say that in the context of the rest of the past that's plausible because the rest of the patent is all talking about human vision. And so you know when the sentence is preceded within accordance with the invention you want to try and read these examples to the extent possible to be consistent with the rest of the patent. The rest of the patent talked about vision. Moving to the jointer issue. So just following up on the point you had raised initially just to run to about consolidation. I would say I would say again you know the board didn't reference consolidation as the basis for what it was doing here. And so the Chenery doctrine would really kick in and prevent this court. Well no, you know it is Chenery doesn't prevent upholding a decision unless upholding it would require the court to make some judgment committed to the agency some factual or discretionary judgment. If it's perfectly clear and I think you can see that you didn't challenge the institution. It's or you didn't challenge the institution. You can see I think at some place that you that they could have consolidated them. Then it I don't see what act of discretion of the board or PTO the director whoever over there would be interfered with by saying what they did here was an unreviewable institution together with consolidation. So we don't need to get to the jointer issue. I think that's incorrect your honor because the board so the reason we didn't challenge institution. Frank lays because if the board wasn't able to join these proceedings it couldn't have instituted the second set of IPRs. So if the board's basis for instituting the IPRs was to say oh well we have authority under this jointer provision. If this court disagrees with the interpretation of the jointer provision I would say it has to send it back to the agency to read decide the institution question under the proper law. Well I was here objection to jointer before the agency. It was a discretionary type of objection so we basically said it would prejudice us because Sony's petition was too late and there was the co pending district court litigation. So it was an appeal to the director's discretionary ability not to join the proceedings based on the facts of this case. Another point to Toronto that you had made just about institution and jointer so the jointer statute does talk about joining a party to that interparties review. And so I would suggest that that's consistent with the idea that jointer the jointer statute doesn't really contemplate a second institution at all. It just contemplates adding a party to the committee. Can I ask under either under the statute or the regulations if a party is joined or even I guess if a party is not joined yet I'm not sure. Tell me if it makes any difference. Can claims that were not specified in the institution decision be added to the review itself a trial as it's called? No, just Toronto. What is a statute or a regulation or both that says the institution decision fixes exactly those claims that will be and can be the subject of the final written decision. I don't know that off the top of my head. My guess would be looking at the statute. These petitions dress these things claim by claim. And so the board and its institution decisions looks at things claim by claim. And so I suspect we would have a statutory argument that you know it's a claim the let it is assessed claim by claim generally. And so the board. Right. The question is whether whether put aside the jointer situation. Whether if I file a an IPR and the director says right I'm going to institute it on claim to and then as we go along he says we're going to add claim three. Right is that is I don't know I would say you know the director didn't do that in this case. And so you know this case would not implicate that question. Finally if I could just say on jurisdiction I just stress that this court has mandamus authority to review what the board did here. And I think all the questions raised about the fluctuating board positions and the various non-presidential decisions and expanded panels etc. Really show why this court needs to review this issue. It's a pure question of law. There should be a determinative construction of the statute and the court can use its mandamus authority to do that. Thank you. How many of you have had a comment? You have any of you? I don't have that much of a sense to check. I mean I would say you know there's been four or five decisions now out of the board on this issue fluctuating various ways. So you know it does come up. It does appear to come up a fair amount but you know I suppose there are thousands of IPRs as well. So you know those would be the names. We thank all the parties in the cases of submit. Thank you