good morning ladies and gentlemen federal circuit and we originally had four argued cases for today one gone submitted and the other settled at the last minute so you are down to two cases but there's there's a lot to talk about  be anticipated and or obvious over certain prior references and apparently challenges that finding so mr chali understand that you're going to say five minutes for rebuttal ok so three three don't like the board's claim construction because it's too bad it's board says that it took its construction straight out of the spec this is one of those than usual cases where the board felt that there was an explicit definition in your written description so what example a sample could be one flight image and we all agree that that's not half as i did ok but i still mean i actually have to say i don't think i've ever seen an appeal where there's an objection to claim construction where an alternative construction is not proposed yana we did propose one and the basically the board did not allow us to proceed with that because well is that the one you're saying now is the correct should have been the correct one i'm saying that but never asked me about the same thing i would given a different answer of course but i've also talked about the importance of perspective correctness it never asked you about application ten  transcript right here and and so the boards and i don't see how you get around it says you you're trying to carve it out that's your construction of full surround image data and there are problems with it and you say ok i guess we'll then the application still of what the first two sentences and he said the first two sentences is what the board had and they come around to saying so he said so you drop your proposed interpretation and you said yes yes of course that you were forced to association of a color value with the given direction finishing that that sentence is what the board's construction is right but what the open is what kind of sample we're talking about  you know that a sample of three rays in one direction a single image which doesn't really isn't a single lineage i mean so you're juncture i was given to the war i have to let me let me back up a little bit because i'm not sure i completely understand what your due process argument but it is but you got there when the board instituted it put its claim construction forward right and you had a chance to respond in writing didn't you and you did and then you had an opportunity be heard oh i think that what the hearing on this quite due process is combination of notice and here is that the area right so you you agree you had notice of the board's claim construction that's correct and you had an opportunity to respond in writing to that yes once and then what does due process require more than when i'm not ready to respond and so your objection then is on the hearing but does the hearing have to allow you to make a further response or just to be heard on your arguments i think there's a fairness issue there and the question is how the questions are set out because the board itself on this week is it unfair for the board to may please the court but the shopper happily google inc granted his argument against the board's construction of full surround image data and it's argument against support it's finding that both of you are disclosed this texture mapping the force around image data both too late under stablish principles grand i was not permitted to change its claim construction were advancing you distinctions of the prior art at the i p r hearing for the first time with after that i am interested in the fact that we've got about three claim constructions here maybe more if mr giles is more than one but google didn't think that the board's claim construction was the correct type construction at least not initially right your honor that's true in sense that google also provided other main which that the bor rejected google did not does not press those on appeal because we you know we went under on both anticipation and obviousness ground on the construction that the board adopted and we agreed with the construction that the board adopted to the extent it incorporated verb a them essentially it added the word single but otherwise incorporated verbiage on the definition from the specification but why is that google  additional language was necessary to clarify the construct it was just out of clarification to give some content to force around image data we don't think it actually would have materially changed the scope of the claims are anticipation arguments for example remain identical under language initially the board said no we're going to go with the verbiage of definition from the specification we agree with that we don't think that that materially changes anything we're happy to go with the boys definition and we made our anticipation argument of course the board offered its additional construction in it institution decision and we then made our anticipation arguments based upon the board's construction and we made alternative arguments but we don't need to press those we're happy to stick with the board's construction and that construction your honor even putting aside the waiver arguments the fact that it was changed midstream during the hearing and in fact one that brandeis counsel one both conceded that the proposed construction that he had at the hearing was incorrect and to that he would ultimately give up any different construction when pressed by the board even putting all of that aside the board went above and beyond any sort of due process that it owed to grand i and still addressed the mott the third modified established circuit precedent and that that construction should not be disturbed how do you respond to the argument made by the other side at least appears to be made in the briefs that that the board's construction which which is a little hard for me frankly to get wrap my head around completely but the board's construction is very good and and the way the board actually applied it is to adopt your whole view directional language but without it's basically saying so sure so a couple responses there and i'll get to the merits but first of all that the big argument the vagueness argument that's doubly waived it was not only raised it was not only that not raised in their briefs it was not raised in the hearing it was not raised as the board noted it was not that argument was not even raised until the rehearing stage so that's doubly where but even if we get past the waiver on the merits here on the claim construction descriptions that that doesn't make a lot of sense and running parse it all out so i think what it means is you sample enough of the real world images right essentially what's happening here is you're taking the camera you're taking images of any see it like this room you have a camera that pans three hundred sixty degrees takes enough images so that when you render the image on a computer that you get a visual read the can get a three d visual mark model and that's the texture mapping you take these two dimensional images which are taken from the camera let's say it takes you know twenty five separate photos as a as that pans around it you then map those twenty five two dimensional images onto a three dimensional spirital type object that's the second time you use the word three d and you think that it's used to make this three d production but that's exactly part of the claim construction your friend wanted to add in and the board refused t the three d graphics system he himself call that a flawed interpretation that's why he tried to change the interpretation at the hearing is and that's from a different case that a different case that's not at issue here where they have that he submitted that that actually was a preferred embodiment and that is not part of that so everyone here agrees that you don't enter you add the standard three d graphics viewing system i'm just trying to describe in a practical sense how this invention works so the sampling question is that's what the full serve surround image data is for is for it's not what it is that's right so the pools around image it up are those pictures that are then mapped on to this visual model that you see on the computer screen now their argument as i understand it again it wasn't made below so i'm trying to gather it from their briefs on their vagueness point as well you don't know how how how many picture is you need to take to do that but we think it's implicit in the definition of will surround image data that the user takes enough photos so that you can accomplish the objective of the invention which is actually to map the images onto a real world presumably a person who were very skilled would either understand that it's enough pictures to accomplish yes yes worth no person ordinary skill would understand that it would be indefinite yes your honor i think that's exactly right a person wearing a school understand you have to take enough images to actually render the image of the real world anything more than that simply goes to resolution right if you take more pictures more samples you're going to get better resolution and so we think it's completely implicit in the claims and the claims are in no way b aside all of the waiver arguments and just address the minutes here and so the wait wait wait that photo we are describes it describes the texture mapping is part and parcel of an approach called a modified recasting now the modified r casting approach of photo of you are essentially has two steps the first step is you select a color from the image that is then texture about into the into the rendering right that color selection step in a traditional recasting is easy you just have a single image you use that color and then you map it on to the render image in photo v o r this it to the extent some images might be overlapping to pick that single color to average the two colors of the overlapped image so if you have two overlap images and they have slightly different coloration it averages those color so that's the modified of the modified recasting so you average the color and then you project that average color on to the polygon that's the texture bapi so it's two steps modified recasting this really two steps you do color averaging to the extent you have overlapping images and then you mouth that color out bridge on to the real world polygon now that that at the time that that image that the color is average you have full surround image data and all you are then doing is applying the image on to the polygon which is what texture mapping is so even if you took you don't have to look any further than grand as own expert declaration which appears at j eight hundred eighty eight paragraph forty seven where he calls quote a v r s recasting a quote pre processing step so google happen the two steps there are there's certainly substantial evidence to support the board's finding particularly under the circumstances here with your argument wasn't even raised until the oral arguments of the fact that google's expert may not specifically address this only comes from the fact that the argument wasn't made until until until the hearing itself i want to address one thing people we before you sit down but i  my the fact that it brought to the argument that the board didn't consider certain arguments or didn't express they consider certain arguments you fell back on the presumption of regularity that that generally attaches to agency actions and putting aside the fact that we've got a it adjudicated body here the presumption of regularity doesn't have anything to do with the substantive consideration of things that has like and those kinds of technical i mean this case yet if it was it was only meant to be an analogy that the we should take the word had is where that it actually applied the claim for instruction that it found there is nothing there is nothing in the opinions at all to suggest that the board was offering one claim construction but subsequent yo applying a claim for instruction that express leverage i mean there's simply no basis in any of the opinion that they cite to suggest that that's what the board was doing and i don't at i've never seen a court say that we're going to assume that that a board or an an adjudicator body was was doing something other than what it says in the words  its opinion there is nothing in the words of its opinions that suggests it's applying anything other than the claim construction that it adopted and so over you can see that this has nothing to do with the with the m r concept of presumption or regulator right you just a very loose analogy that we shouldn't assume that the board is doing something nefarious behind what it says in its opinion or improper beyond what it says in its opinion and so i think that that's all the limited point was  you're right exactly the record is the record it did what it said in its opinion it's clearly applied its claim construction that it rejected google's proffered claim for instruction in the institution decision that then applied the claim for instruction that it did it found it anticipated  another for example another district court litigation right now which alleges infringement of certain google features such as the street view feature which some in this room may have used where you know you can pan around and see for example look at your house and your block so i think that's and that's the type of technology that would be at issue for example in that separate district court infringement  board issues its institution decision that gave clear notice of what was going on the case there were a number of opportunities for granted to respond some of them it took some of them it didn't  fulsome would be at the hearing but the board takes the pretty strict view does that not what whether you can offer anything new at the hearing well i think the board was skeptical of whether or not it could be raised at that point because i that point if it's raised without notice it prejudices the other side or just as google as i think with the board was saying well they're not ethical i mean they take a policy because there's an across the board that you can't raise anything do it that hearing right one of the judges took  fairly strong view or at least push back fairly strongly that it shouldn't be race at that point in time that doesn't mean that you you can't maybe it's futile to do so but you can maintain your  these changes i'm tardiness out of this this is not the first rodeo i mean we've seen a lot of cases coming out of the peta and there are more and yes and now a lot more coming and they all take the position yet you can't raise anything nearly a hearing or maybe they have strict requirements is that not right but that's correct actually that's that's in line with the rules the rules allow the submission of a so the evidence comes in during the initial phases and by the time you get to the hearing supposed to be pretty much closed and so when you start taking new positions that means the problem with that is that we have a one year type period that we're supposed to complete this and and if you're starting to raise new issues all the safety hearing at the very end it makes it very difficult as a real question seems to be four percent is whether it was new if it's new it's pretty clear that that's correct so if it was definitely it was a new item because the initial construction that was proffered had to do with folding in two different read in two different subsidiary definitions but they ca and so i think the judges i think as as was mentioned i think the judges did actually consider whether or not that was proper or whether it was proper to incorporate further incorporate other things based upon as the definition there's a definition and then there's a here's what you can use it for base might be here's what you can use it for section of that of that portion of the space station and they said no we don't think we think that's just an example of what the types of pictures of allowing the development of an argument that there might be a due process rightly so that i think that's not the case here but absolutely there are situations you can imagine i think we could we could think of hypotheticals where where you could have a due process problem  whole document starting at eight twelve forty nine which is i commend to reading because this is the only evidence is really given by by google  prior art i mean yes more evidence do they have to give in on that well we didn't read the prior in this but the reading of privilege that they focus on the assumptions on page twelve fifty and they say that because  if it's somewhat true for the two fish lies each fish i will always have the same focal focal point of view point and then combine into two it's relatively easy it is just make sure that it expert testified that there is no such maintenance yet but that may that's not raising the argument i mean that i don't read that reply to they got to the substantial evidence to support that there is texture mounting relied on a new argument that you didn't have a chance to respond to it goes beyond just the conduct of what i'm really trying to figure out is whether you're giving up on the cla not not not not not about to because i would say to just to simplify this argument on the plane construction is of purely as a matter of law saying that sample something else is not adequate to google raises intermediate thing intermediate results and then the board question me about it and then question actually help google decide that well is this we were first on the race issue and google was privileged to argue that there was some texture mapping after this interview based upon the art that was already in the record they're just  new arguments about stuff that was in the record they didn't try to inject new it new evidence or anything like that well i think they did but it's not because he's testifying if you look at the