UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_____________
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`FEDEX CORPORATION,
`Petitioner,
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`v.
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`INTELLECTUAL VENTURES II, LLC,
`Patent Owner.
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`_____________
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`
`Case IPR2017-00787
`Patent 7,199,715 B2
`
`_______________
`
`Record of Oral Hearing
` Held: April 26, 2018
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`
`
`Before DAVID C. MCKONE, BARBARA A. PARVIS, and JOHN A.
`HUDALLA, Administrative Patent Judges.
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`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________
`
`FEDEX CORPORATION,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II, LLC,
`Patent Owner.
`
`_____________
`
`
`Case IPR2017-00787
`Patent 7,199,715 B2
`
`_______________
`
`Record of Oral Hearing
` Held: April 26, 2018
`_______________
`
`
`
`Before DAVID C. MCKONE, BARBARA A. PARVIS, and JOHN A.
`HUDALLA, Administrative Patent Judges.
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`Case IPR2017-00787
`Patent 7,199,715 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MICHAEL YOUNG, ESQUIRE
`ALEXANDER M. BOYER, ESQUIRE
`DANIEL C. TUCKER, ESQUIRE
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`Two Freedom Square
`11955 Freedom Drive
`Reston, VA 21090
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`
`
`ON BEHALF OF THE PATENT OWNER:
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`
`
`
`LAUREN M. NOWIERSKI, ESQUIRE
`KEVIN MCNISH, ESQUIRE
`ALAN S. KELLMAN, ESQUIRE
`Desmarais, LLP
`230 Park Avenue
`New York, NY 10169
`
`
`
`The above-entitled matter came on for hearing on Thursday, April
`26, 2018, at 1:02 p.m., at the U.S. Patent and Trademark Office, Madison
`Building East, 600 Delany Street, Alexandria, Virginia, before Walter
`Murphy, Notary Public.
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`Case IPR2017-00787
`Patent 7,199,715 B2
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`P R O C E E D I N G S
`THE USHER: All rise.
`JUDGE PARVIS: Please be seated. This is the oral argument in
`IPR2017-00787. The challenged patent is U.S. patent No. 7,199,715 B2.
`Petitioner is FedEx Corporation, Patent Owner is Intellectual Ventures II,
`LLC. I'm Administrative Patent Judge Parvis, Judge McKone is
`appearing remotely from the Detroit office and Judge Hudalla is here
`with me.
`At this time we'd like counsel to introduce yourselves, your
`partners and your guests starting with Petitioner. Please use the
`microphone.
`MR. YOUNG: Good afternoon. May it please the Board, my
`name is Michael Young on behalf of the Petitioner FedEx Corporation.
`With me at counsel's table is Bradford Schulz, and again in attendance
`this afternoon is lead counsel, Jeffrey Berkowitz, and chief IP counsel for
`FedEx Corporation Christopher Cherry.
`JUDGE PARVIS: Patent Owner.
`MS. NOWIERSKI: Good afternoon, Your Honor. Lauren
`Nowierski on behalf of the Plaintiff, Intellectual Ventures II, LLC. With
`me at counsel's table is Kevin McNish. Also appearing today in the
`courtroom is Mr. Alan Kellman, lead counsel as well as James Hietala
`from Intellectual Ventures and Tim Seeley, also from Intellectual
`Ventures.
`JUDGE PARVIS: Thank you. We want to start by mentioning
`again the Supreme Court's recent decision in SAS Institute, Inc., v. Iancu.
`In the instant proceeding we instituted on some claims but not others. As
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`we indicated in the first hearing, we will need to address the remaining
`claims in the final decision. As we also indicated earlier, the parties
`should meet and confer and send an email with a proposed time for a call
`with the panel next week. Also before we begin, as we noted this
`morning, guidance for this hearing was provided in our Oral Hearing
`Order of April 2nd, 2018. As you know from that order, each side will
`have 30 minutes total time for oral argument. After this hearing we will
`conduct a hearing in IPR2017-00859, which will begin shortly after 2
`Eastern.
`We have a few other reminders. This hearing is open to the public
`and a full transcript of it will become part of the record. Also please
`remember to speak into the microphone at the podium so that all judges
`including the remote judge can hear you and please speak into the
`microphone information to identify any document projected on the
`screen. That document will not be viewable by anyone reading the
`transcript or the judge appearing remotely. So anytime counsel for
`Petitioner, you may proceed.
`MR. YOUNG: Thank you, Your Honor. I'm going to start on
`slide 3. The 715 patent issued on March 1st, 2005, and is entitled
`"System and Method for Tracking ID Tags using a Data Structure of Tag
`Reads." Now jumping to slide 40.
`Claim 1 is extremely broad under the broadest reasonable
`interpretation and includes four elements including attempting to read
`tags at successive points, populating a database with that read
`information, modifying part of the information in the database based on
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`other information and using that modified information to continue to
`track the tags through the business process.
`Advancing to slide 41. Claim 2 merely adds generic and well
`known data structure to the populating, modifying and using the elements
`of claim 1. Advancing to slides 42 and 43. Claims 11 and 12 are just a
`redraft of the method claims as system claims and associated components
`that conduct those steps.
`Now the Board found that claims 1, 2, 11, and 12 were obvious in
`the Institution Decision in view of Jones, U.S. patent No. 6,952,645.
`Jones is directed to a vehicle travel monitoring system and it discloses a
`tag in the form of a vehicle control unit or a VCU as attached to a vehicle
`and that identifies the vehicle as it travels along a delivery route. Jones
`also discloses readers that read those tags of the base station control unit
`or BSCU and the other claims travel data from VCUs at scheduled stops
`along the delivery route.
`I'm going to move to slide 13. Jones also discloses populating a
`database with that travel information in the form of a travel data storage
`unit. Advancing to slide 14. Jones also discloses modifying information
`in that database by updating the arrival time of a delivery based on the
`travel data that is collected thus far. So if a delivery was running behind
`it would update the ultimate arrival time in the database.
`Advancing to slide 15. Jones discloses using that modified
`information by sending an alert to a user based on that modified
`information, that new updated arrival time. I'm going to go back to slide
`9 now. At Institution, the Board rejected the Patent Owner's argument
`that a tag must contain ID information and as consistent with the
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`specification's explanation that any device or marking that identifies a
`product or process is a tag. That's an express definition with no
`requirement that the identity of the tag, product or process be contained
`within the tag or transmitted to the reader during a read.
`The Board should confirm its initial determinations in the final
`written decision because Intellectual Ventures, Patent Owner's response
`simply repackaged its tag arguments from the preliminary response into
`an attempt to read or reader argument in Patent Owner's response, and if
`you look at the Institution Decision at page 9 recognized that IV and Dr.
`Engels, their expert, testified and required that the principal component
`and functionality of each of these tags is that it contains an identifier that
`is the data read from the tag directly by the reader. The Board rejected
`that, but in the Patent Owner's response, while suggesting that it's
`following the Board's construction for tag, proposes a new construction
`for read that says a reader must obtain that identity information from the
`tag in order to function as a reader in the claimed tag tracking system.
`I'm going to go to slide 9 now.
`JUDGE MCKONE: Nothing in our Institution Decision foreclosed
`that argument though, did it?
`MR. YOUNG: Your Honor, I believe it did. The Board
`specifically found the express construction of a tag and nothing in the
`claims or the specification required the more specific embodiments
`referred to by the Patent Owner and Dr. Engels be imported into the
`claims.
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`JUDGE MCKONE: Okay. But Patent Owner's argument is a bit
`different, but in any case we're not bound by a preliminary determination
`in the Institution Decision, correct?
`MR. YOUNG: Correct, Your Honor. I would say that the
`specification of the 715 patent is also consistent with the Board's
`preliminary claim construction for tag, which is what we're also talking
`about with respect to read. The 715 patent, for instance, notes that a
`missed read is the failure to detect a tag and so in the inverse a read could
`be merely detecting a tag. But ultimately that doesn't matter for the
`ultimate conclusion that these claims are obvious because Jones renders
`the claims obvious even under their proposed construction.
`Moving to slide 30. Jones discloses that the VCU sends a mobile
`identification unit and an electronic serial number when it is read by the
`BSCU that unambiguously identifies the VCU. Moving to slide --
`JUDGE MCKONE: Don't move to the next slide just yet. The
`sentence above what you have highlighted says,
`"In this regard the travel data can be encoded by altering identifiers
`of communication device 44."
`How do I read altering identifiers of communication device 44?
`MR. YOUNG: Farther down in the same column of Jones. For
`example, column 6 and paragraph beginning at 51 notes that,
`"Alternately or in combination with manipulation of the identifiers
`of the communications device 44, travel data can be communicated
`through the data by appending travel data to the feature requests that are
`transmitted" --
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`I'm sorry, I'm reading the wrong section. Here we go. It's actually
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`the paragraph beginning at column, 6 lines 36 through 50, and it notes in
`the first sentence there that,
`"In order to transmit the travel data through the data channel by
`manipulating identifiers," and it goes on, "they're altered to include the
`travel data but the ESN remains fixed to be used as an identifier of the
`communications device."
`So what it's teaching here is they're manipulating one or the other
`but they have to have some way to provide their identification in the
`transmission.
`JUDGE MCKONE: Okay. Thank you.
`MR. YOUNG: Moving to slide 32. Patent Owner also argues that
`Jones teaches away from attempting to read at successive points because
`of the cost considerations associated with cellular communications. But
`Jones actually proposes ways to reduce transmission costs and it's
`actually encouraging these transmissions to occur. Also Jones teaches
`that the cellular network can be completely circumvented and with a
`direct communication between the BSCU and the VCU, so ultimately it
`doesn't matter.
`I'm going to slide 2 now. Ultimately, the Board should confirm its
`Institution Decision to find that claims 1, 2, 11, and 12 are obvious in
`view of Jones. It discloses each and every element and the Board
`properly construed tag in the first instance and FedEx submits that the
`Patent Owner's proposed claim construction for attempting to read or
`read runs contrary to the Board's construction. If there are no other
`questions, I'll reserve the rest of my time for rebuttal. Thank you.
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`MS. NOWIERSKI: Good afternoon, Your Honor, and may it
`please the Board. The 715 patent is patentable over Jones. In contrast to
`what you just heard, the 715 patent is not about just tracking tags along
`several successive points of a business process. Instead, the heart of the
`715 patent is really about modifying information in a database using a
`specific data structure of identification tag reads and how to use that
`information to optimize supply chains. Jones has absolutely nothing to
`do with that.
`Now today what I plan to do is to step through first an overview of
`the 715 patent in order to provide some context to the claims at issue
`here, claims 1, 2, 11, and 12. Then I'll provide a brief overview of Jones.
`Then I'll address three limitations present within the claims. First,
`reading or attempting to read each tag at each successive point. Second,
`populating a database and third, the limitations relating to storing in each
`corresponding cell, aka, the specific claim structure provided in claims 2
`and 12.
`Now, moving to Patent Owner's slide 4. As the title of the 715
`patent demonstrates, the 715 patent is really about tracking identification
`tags, ID tags, using a specific data structure of tag reads and as the
`background of the invention, which is in column 3 shows, the patent
`invention really relates to RFID tag tracking system. Now, moving to
`Patent Owner's slide 4. As the Board recognized in its Institution
`Decision, the specification more broadly defines tag and it refers to tag
`with any device or marking that identifies a product to process. Again,
`that's the identification tags referred to in the title of the patent.
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`JUDGE MCKONE: You're not contesting our construction of tags
`at this point, are you?
`MS. NOWIERSKI: We are not, Your Honor.
`JUDGE MCKONE: And you agree that the patent does not
`require the tags to be RFID tags, correct?
`MS. NOWIERSKI: That's correct. As shown on slide 5, the
`specification more broadly defines tags as an identifier, so a device or
`marking that identifies the product or process.
`JUDGE MCKONE: Right. And Jones' VCU, it's not your
`argument that it fails to be a tag because of its complexity, correct? That
`it's more of what it sends --
`MS. NOWIERSKI: That's correct.
`JUDGE MCKONE: Is that -- okay.
`MS. NOWIERSKI: That's correct, Your Honor.
`JUDGE MCKONE: Thank you.
`MS. NOWIERSKI: All right. Now figure 1 of the 715 patent, and
`I'm actually going to put that up on the ELMO, but it's on Patent Owner's
`slide 6 so you can follow along. So as shown in figure 1 of the 715
`patent, what you have is products with the identifier tags, which is
`labeled 102, and they move along a business process, which is the arrow
`denoted at 104, and as those tags move along the business process they
`pass by various readers and those readers are marked in orange box 106-
`1, it's the first reader, box 106-2 in green is the second reader and in
`purple 106-N is the Nth reader. And you can have as many readers as
`you desire in your system, and as the tags pass those readers the question
`really that the readers are asking is who you. It's trying to find out the
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`identity information of the tags that are coming within proximity of—
`certain proximity of—those readers.
`Now moving to Patent Owner slide 7 which I'm also going to put
`up on the ELMO. Those readers are feeding the identity information
`along with the date information to the database labeled in blue in box
`110. As shown in figure 1, the identification information is received
`from the readers as well as the date or the time stamp information.
`Now Patent Owner's slide 8 shows an exemplary data structure for
`what's in box 110 in the database and as you can see in table 1, there are
`four rows A, B, C, and D and each of those A, B, C, and D correspond to
`a tag that's passing by the readers, and each of the columns 106-1, 106-2,
`106-3, and 106-4 refer to specific readers in the process, and then for
`each of those readers there are two smaller columns, one for the identity
`information marked as ID and two for the date for the time stamp of that
`information.
`JUDGE MCKONE: Now there's nothing in the claims that
`suggests that we require more than one reader; is that correct?
`MS. NOWIERSKI: For the claims at issue here, no, that's correct,
`Your Honor.
`JUDGE MCKONE: Okay. And you're not contending otherwise
`that there's anything else in the spec that would require the claim to have
`more than one reader?
`MS. NOWIERSKI: For claims 1, 2, 11, and 12 that's correct.
`JUDGE MCKONE: Okay.
`MS. NOWIERSKI: The table 1 is simply an exemplary data
`structure. Now as shown on Patent Owner's slide 9, this shows you what
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`the exemplary data structure looks like when it's public. So in this
`particular instance, what you see for rows A and B the tags pass by the
`four readers at 12:10, 12:20, 12:30, and 12:40 and you know that those
`tags were read because there's a one in the ID column for each of those.
`What you see in rows C and D is that there were missed reads and that's
`denoted in the green box and you can see that those were missed read
`because the ID column says zero and there's an asterisk next to the time.
`Now if you look at table 5, table 5 shows you what happens when
`the invention of the 715 patent actually operates, and so what appears
`now in the green box that I've drawn on the bottom of Patent Owner's
`slide 9 is the two ones are asterisked and that shows that the identity
`information was populated using the other information in the database
`and the asterisk next to the 12:30 time in the date column, 106-3, shows
`that those were also modified based on the information in the database,
`namely the information in rows C and D for the other columns 106-2 and
`106-4.
`JUDGE MCKONE: Now you haven't made any argument that
`Jones somehow lacks modifying information in the database based on
`other information, have you?
`MS. NOWIERSKI: We have not challenged that particular
`limitation but because of those two limitations in our view is not met, that
`limitation also would not be met because it requires the modification of
`the information that's populated.
`JUDGE MCKONE: Right. But there's no separate argument here?
`MS. NOWIERSKI: That's correct.
`JUDGE MCKONE: Correct? Okay.
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`MS. NOWIERSKI: Now, so that provides a little bit of context
`about what the 715 patent claims are really getting to and in particular
`that includes claims 1, 2, 11, and 12 as well as several others.
`Looking in contrast of Jones and moving back to the slide deck.
`Now we're going to Patent Owner's slide 11. Patent Owner's slide 11
`shows you Jones and general overview of Jones, and so Jones as it's titled
`in the case is really a system and method for an advanced notification of
`monitoring and recording the status of the vehicle and as the field of
`invention confirms it's really a method for visually activating a vehicle
`travel monitoring system.
`Now moving to Patent Owner's slide 12. What you see here is
`figure 1 of the Jones patent and what you see on the left side in yellow is
`the vehicle control unit which is what Petitioner is calling a tag and as
`you can see there's various components of the VCU and that includes
`GPS sensor for communicating with GPS satellites to obtain location
`information as well as a vehicle manager which is the processor and sort
`of the brains of the VCU, and what's noted in box 44 is the
`communications module for communicating back to the main home base.
`JUDGE MCKONE: So I think I'm going to cut to the chase a little
`bit here. Petitioner contends that because vehicle control unit 15 is
`communicating over a cellular network it's going to transmit a cellular
`identification number of some sort. I think the -- and Petitioner points to
`a passage in the specification of Jones that seems to indicate an
`identification number of some sort. What is your response to that?
`MS. NOWIERSKI: Sure. So first I just wanted to note for the
`record that that passage that Petitioner pointed to was not in their reply
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`brief or anywhere in the record, but looking at that particular part of
`Jones which I'll put up on the ELMO as well which is column 6, lines 14
`to the end. So what Petitioner pointed to in its briefing was really that
`section that Your Honor pointed out to him which is the fact that the ESN
`and the MIN --
`JUDGE MCKONE: I'm sorry. This is going to be awkward but I
`need you to speak into the microphone as best you can.
`MS. NOWIERSKI: Absolutely. My apologies. Okay. So with
`respect to what the Petitioner pointed in his briefing, in Petitioner's
`briefing they pointed to lines 20 to 24 which basically refer to using
`altered identifiers and including the mobile identification number, the
`MIN, and the electronic serial number, the ESN, in order to communicate
`the travel data meaning the GPS data back to the BSCU. Now here today
`Petitioner pointed to more information regarding both the ESN and the
`MIN and that's with respect to lines 36 through 67.
`JUDGE MCKONE: Right. But that was clarifying in response to
`my questions.
`MS. NOWIERSKI: Correct.
`JUDGE MCKONE: Are you contending that this VCU is not
`transmitting the mobile identification number or electronic serial
`number?
`MS. NOWIERSKI: So what really it's transmitting is it's altering
`the MIN, Petitioner didn't dispute that, and it's also transmitting the string
`of characters included in the ESN along with the travel data but in order
`to use the travel data, in order for the BSCU to use that travel data it
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`needs to already know the ESN or the MIN, or that information is
`essentially useless to the BSCU.
`So, in contrast to the tag readers in figure 1 and in the 715 patent
`generally which are asking the question who are you, the reader or what
`Petitioner is calling the reader in Jones is really asking where are you. It
`essentially already needs to have the identity information in order to even
`use it because if it just receives the GPS string with the ESN or an MIN,
`that information is not usable to the BSCU unless it already has the
`information. Unless it already has the ESN or the MIN.
`JUDGE MCKONE: We’ll assume the BSCU does not need to
`know the mobile identification number or the electronic serial number,
`does it nonetheless receive it and read it?
`MS. NOWIERSKI: So it does not receive the MIN because the
`MIN is altered as the specification in lines 36 to 67 explain. That's
`actually cut down because it needs to reduce the cost of the data
`transmissions, and with respect --
`JUDGE MCKONE: I don't remember it saying it cut down what is
`sent in the controls channel but it says it sent things in the control channel
`so that it doesn't have to I guess waste voice channel. Am I
`misunderstanding --
`MS. NOWIERSKI: Sure. Let me try --
`JUDGE MCKONE: -- things in that regard?
`MS. NOWIERSKI: -- let me try to find the section. Well I think if
`you look back at the section that Petitioner originally pointed to which is
`6, lines 14 to 24, it talks about altering the identifiers and those identifiers
`are altered in order to shorten the amount of data that's being transmitted
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`Case IPR2017-00787
`Patent 7,199,715 B2
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`over the control channel even if the control channel is being used as
`opposed to the cellular network.
`JUDGE HUDALLA: Is the ESN also altered, is that your
`position?
`MS. NOWIERSKI: The ESN is not altered but it's appended to
`the information, the travel data that's being submitted. So in order to be
`usable the BSCU needs to be able to know what that serial number is in
`order to strip it from the GPS data that's being received.
`JUDGE HUDALLA: Okay. But is that still being received, I
`guess you wouldn't dispute that, right?
`MS. NOWIERSKI: I agree with you that the ESN is still receiving
`that information but it's not obtaining it like for the first time. It's not
`asking the who are you question, it's really asking the where are you
`question, which is where are you mom in a text message. You know who
`your mom is, your mom's saying at the supermarket (indiscernible.)
`JUDGE PARVIS: So the Patent Owner's position is that operating
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`the --
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`JUDGE MCKONE: Now we do have an embodiment where the
`vehicle manager is transmitting travel data to the base station at
`scheduled stops or deliveries.
`MS. NOWIERSKI: Correct.
`JUDGE MCKONE: In that case, why would the BSCU be
`listening for a particular VCU, especially in a situation where you have
`maybe multiple buses or multiple delivery trucks? How would it know
`that when it's receiving a scheduled stop transmission, who's sending the
`transmission?
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`MS. NOWIERSKI: So this invention is being used in basically a
`vehicle system in which all the vehicles are already known, and so in
`order to set up the predetermined time intervals that you just referred to
`one or more users of the system needs to request that those stops or that
`the information is being transmitted at those particular stops. Jones as a
`whole really, as I think as we put in our Patent Owner response and as
`Dr. Engels testified, it's really upon user request and a lot of the
`specification really deals with the whole idea of having the user
`interested in certain information and having that information conveyed to
`the user through these notifications that are sent from the BSCU to the
`user and the way the BSCU obtains that information is either by having
`the VCU preprogrammed to transmit or a specific VCU preprogrammed
`to transmit that information or transmit it like on demand, on an actual
`request.
`JUDGE HUDALLA: What claim language are you pointing to for
`this whole notion that I can't know my tag before I read it?
`MS. NOWIERSKI: So in particular we're pointing to the read
`limitation, the attempting to read limitation, and so I think as Petitioner
`pointed out earlier they're taking issue with our construction for read and
`so they're trying to import a broader understanding of read but with
`respect to claims 1, 2, 11, and 12 there's really a communication that
`needs to happen between the reader and the tag. So they're more broadly
`interpreting reader outside the context of what a tag is and what tag is, is
`a device would have already identified the product to process and so what
`a reader is has to be able to receive that identity information and obtain
`that identity information.
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`Case IPR2017-00787
`Patent 7,199,715 B2
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`JUDGE HUDALLA: I guess I'm struggling to see how you bring
`this whole notion of just reading the word read, I look at attempting to
`read in this kind of broadest sense. I don't see that as requiring that I
`don't know what I'm reading beforehand.
`MS. NOWIERSKI: Well I think it's really if you just get back to
`the notion of what the tags are in the 715 patent and it's talking about
`identity tags, and even though it's broader than just a RFID tag the system
`itself has this notion in figure 1 -- they're talking about different readers
`and different tags -- it needs to know what the information is, and if you
`look at the tables that are in the patent the tables all have structures that
`talk about the identification because it's trying to obtain that identity
`information from the tags because basically this is used in a supply chain
`where products are usually passing by certain readers in a warehouse and
`they're trying to get the information about where the products are in a
`particular period of time.
`Since we started down the path of attempting to read, I think there
`is really a different -- in addition to our read argument, there's really a
`second reason as to why attempting to read and a reader for reading
`limitations is not met, and in particular kind of pointing to slide 19. So I
`think we started touching upon this but in Patent Owner's slide 19 Jones'
`VCUs really only provide GPS data in three scenarios. First is upon user
`request and that's Jones column 13, lines 34 to 67, at predetermined time
`intervals which we discussed earlier, column 18, lines 4 to 20 and at
`some point after the VCU itself determines that a specific location is
`passed and that's done by using the vehicle manager box 29 in the
`diagram communicating with the GPS.
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`Case IPR2017-00787
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`JUDGE MCKONE: Is there some significance to your
`parenthetical here, i.e., not the BSCU?
`MS. NOWIERSKI: Yes. And I think here it's when the VCU is
`determining that a particular predetermined location is passed, so this is
`not a scenario in which the reader determines the BSCU is determining
`that something is passing it. The VCU itself, what Petitioner is calling a
`tag is independently determining that a certain location is met and then it
`just transmits that location information back to the BSCU.
`JUDGE MCKONE: And how is it distinguishable from the claim
`language?
`MS. NOWIERSKI: And so it's distinguishable from the claim
`language because, again, this is not really a reader transmitting the
`identity information. This is a point in time where the VCU is
`determining okay, I am now at point X and it's transmitting that GPS data
`to the BSCU so it's not identifying itself, again it's just providing the
`travel data.
`JUDGE MCKONE: So this is basically the same argument
`because the VCU is not transmitting identifying information that the
`BSCU is not reading identifying information?
`MS. NOWIERSKI: With respect to the parenthetical on slide 19,
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`yes.
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`JUDGE MCKONE: Okay.
`MS. NOWIERSKI: So in sum, Jones' VCUs are really only
`providing GPS data in these three scenarios. Jones is not teaching at any
`point in the specification, and Petitioner has not identified it, where all
`the vehicles in the system are reporting or are attempting to report their
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`location at each successive point. So even if you assume that Petitioner's
`broader construction for reading is correct, there's still no disclosure in
`Jones that all of those vehicles are reporting their reads at each successive
`point, and Dr. Engels said that in his declaration at paragraphs 103 and
`104. He explained that the system really has no need to track each
`vehicle at each successive point along the path and there's also this notion
`about how transmitting travel data is costly and Petitioner's counsel
`briefly addressed that and they pointed to the idea about being able to
`transmit the data also alternatively over a data channel or
`communications channel, and with respect to that there's no teaching in
`Jones that the system would be operable to report all of that data over
`these data channels or these communication channels.
`JUDGE MCKONE: Well I want to step back a little bit to your,
`maybe the previous argument.
`MS. NOWIERSKI: Sure.
`JUDGE MCKONE: In Jones in column 17 around line 36 or so it
`does talk about the vehicle manager transmitting travel data when
`scheduled stop or deliveries are reached. Why would that not be at each
`successive point assuming the delivery stops are successive points, why
`would it not transmit at each of them?
`MS. NOWIERSKI: But that's not at each tag at each successive
`point, that's just for one particular tag at certain points.
`JUDGE MCKONE: So we shouldn't infer that describing a system
`where there might be multiple vehicles each with a VCU and then when
`the VCU passes a predetermined point it transmits something?
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