[00:00:20] Speaker 04:
Now that we're conversant with the core of this patent, we'll hear the reverse appeal.

[00:00:32] Speaker 04:
Conversant wireless licensing versus Apple involving the same patent with different claim limitations and different references.

[00:00:42] Speaker 04:
Mr. Neruzzi.

[00:00:46] Speaker 01:
Thank you, Your Honor.

[00:00:48] Speaker 01:
The issue in this appeal is that the board made two significant errors in its final written decision in its approach to reaching the conclusion of unpatentability with respect to the 020 and 476 patents.

[00:01:06] Speaker 01:
First, the board's decision relied on an implicit construction.

[00:01:11] Speaker 01:
that equates the act of launching an application with a separate claim requirement that the application must have been in an unlaunched state.

[00:01:20] Speaker 01:
Second, the board's stated motivation to combine failed to provide a reason for the actual modifications on which its unpatentability determination relies.

[00:01:31] Speaker 00:
I don't see below anywhere where you argue this unlaunched state point.

[00:01:39] Speaker 00:
You never presented

[00:01:40] Speaker 00:
to the board that there was a need for a construction, right?

[00:01:45] Speaker 01:
We did not expressly ask for a construction, but we made arguments based on the meaning of Unlaunched State.

[00:01:51] Speaker 00:
But wasn't that limited to the one dependent claim 10?

[00:01:54] Speaker 01:
And there are two patents at issue.

[00:01:56] Speaker 01:
So with the 476, it was not.

[00:01:58] Speaker 01:
It applied to all claims.

[00:02:00] Speaker 01:
In the 020 context, it came in the section of the brief discussing claim 10.

[00:02:05] Speaker 01:
But claim 10 depends from claim 1.

[00:02:07] Speaker 01:
And claim 10 has nothing further to say specifically about unlaunched state.

[00:02:12] Speaker 01:
It's not a modification on the unlaunched state limitation.

[00:02:14] Speaker 00:
So where does your unlaunched state argument show up for the 476?

[00:02:19] Speaker 00:
I just can't see it at all.

[00:02:23] Speaker 01:
So we address this point in our reply date.

[00:02:28] Speaker 00:
And I saw that, but I couldn't find it below.

[00:02:33] Speaker 01:
So it is.

[00:02:43] Speaker 01:
Appendix 417 to 19, and Appendix 2732.

[00:02:47] Speaker 01:
So with a 476, it's at Appendix 2732.

[00:02:52] Speaker 00:
OK, where?

[00:03:12] Speaker 01:
So starting in Appendix 2731, we argue Opposito would understand that the five new emails text shown in Figure 10 corresponds to the America Online website also shown in Figure 10.

[00:03:28] Speaker 01:
And then at 2732, right at the top, we say, assuming arduendo that the American Online website qualifies as an application, which patent owner denies

[00:03:39] Speaker 01:
that application would be considered launched in Figure 10 because a window to the website is open and visible.

[00:03:45] Speaker 01:
And so that's the exact same argument that we're now making on appeal about unlaunched state and display.

[00:03:54] Speaker 01:
And so the argument below, both with respect to the 476 and the 020, was that the board and Apple were relying on Figure 10 of NASIN, along with certain teachings in the text of NASIN,

[00:04:09] Speaker 01:
yet there's no evidence based on either Figure 10 or the teachings of NASIN that the applications themselves that are, quote, launchable from NASIN's GUI menu were previously in an unlaunched state as the claims require.

[00:04:24] Speaker 00:
Okay.

[00:04:25] Speaker 00:
What does that have to do with the Schnorr-Arbor combination?

[00:04:29] Speaker 00:
So this... This only relates to NASIN.

[00:04:32] Speaker 01:
This particular item about NASIN's Figure 10 is the reason that the board's decision asked

[00:04:39] Speaker 01:
should not be affirmed and should be reversed.

[00:04:42] Speaker 01:
We also, as you point out, have to address the Schnarl-based unpatentability finding.

[00:04:48] Speaker 01:
In that context, obviously, APLA had an argument based on Schnarl alone.

[00:04:52] Speaker 01:
As the panel already alluded to in the prior argument, that was rejected as inadequate.

[00:04:57] Speaker 01:
Ultimately, the board relied on a combination of Schnarl and Ayberg.

[00:05:01] Speaker 01:
In that context, first of all, they did not make an adequate finding that

[00:05:08] Speaker 01:
Schnorrl teaches Unlaunched State, but I want to focus right now on their failure as to the motivation to combine Schnorrl and Arbor.

[00:05:16] Speaker 00:
Because in that context... Okay, so but as to my original question, you pointed me to some place where you made this argument about Unlaunched State as it relates to NAISY, but you have not pointed me to any place where you made it with respect to Schnorrl and Arbor.

[00:05:29] Speaker 00:
So you want to go to your argument on Schnorrl, but the answer to my first question then is that you did not make this argument as it relates to Schnorrl and Arbor.

[00:05:38] Speaker 01:
Okay, thank you.

[00:05:39] Speaker 01:
I now understand your question.

[00:05:40] Speaker 01:
So as it relates to Schnarl and Aberg or Schnarl itself, I did not see in the record an argument where the unlaunched state limitation in the context of Schnarl was expressly challenged.

[00:05:55] Speaker 01:
Our position on that is that issues that the board decides and passes upon below are ripe for appeal.

[00:06:01] Speaker 01:
Now, so to the extent that the board

[00:06:04] Speaker 01:
requires that we specifically challenge that limitation in the context of Schnarl, I don't see that in the record.

[00:06:10] Speaker 01:
Our position is that's still not waiver because it's an issue that was passed upon below.

[00:06:14] Speaker 01:
But what's important to note is that our appeal does not rise or fall on that issue.

[00:06:21] Speaker 01:
Because with respect to the Schnarl findings, we have a second and very, I believe, compelling argument as to the lack of an adequate motivation to combine to justify the full extent of the modification

[00:06:35] Speaker 01:
that the board needed to make to arrive at the claimed invention.

[00:06:39] Speaker 00:
Did you argue below that there were basically six steps in the modification that would need to occur?

[00:06:45] Speaker 01:
Your Honor, I want to actually address the six-step issue.

[00:06:51] Speaker 01:
It's actually irrelevant whether you call it six steps or one.

[00:06:54] Speaker 01:
So I just want to make clear that, again, our argument does not rest on whether you believe that it is six steps or three or two or one.

[00:07:01] Speaker 01:
What we are specifically saying in the point of the six-step illustration is to make very clear what it is that must be done and that the board found must be done to snarl to get it from the point where it does not meet the patent claims to the point where it would meet the patent claims.

[00:07:18] Speaker 01:
And specifically, that's very clearly illustrated in our reply brief visually.

[00:07:24] Speaker 01:
And I'll direct the report to our reply brief at page four, where we put out a before and after visual illustration of Schnarl's figure one.

[00:07:36] Speaker 01:
In its original configuration, Schnarl's GUI in figure two, actually, contains a message summary pane 206.

[00:07:47] Speaker 01:
Now, this message summary pane is not reachable directly from the application button bar 104, which is below it.

[00:07:57] Speaker 01:
So the board correctly found that what Apple was calling the summary window, which is the pane 206, can't be reached from the main menu, application button bar 104.

[00:08:09] Speaker 01:
To remedy that, Apple had an alternative theory that the board did accept, a combination of Schnarl and Eber,

[00:08:16] Speaker 01:
And as a part of that alternative theory, here's what had to be done.

[00:08:19] Speaker 01:
That menu 206 had to be taken off of the home screen of Schnall.

[00:08:23] Speaker 01:
It then had to be placed into a special menu as taught by Averb.

[00:08:28] Speaker 01:
That special menu idea is simply the idea that you can put GUI items into a menu and place it anywhere in the hierarchy of the device.

[00:08:36] Speaker 01:
Then specifically, and now whether you call this all one modification or six doesn't really matter.

[00:08:41] Speaker 01:
The point is that the motivation has to support all these changes.

[00:08:45] Speaker 01:
then you have to take that menu that was removed from the screen, put it into the Aborg menu, and place that only and only into application button bar 104, because that's what they've called the main menu.

[00:08:59] Speaker 01:
If you don't put the menu that they've removed into application button bar 104, you cannot meet the claims.

[00:09:05] Speaker 01:
And you have to do one more thing that the board found.

[00:09:09] Speaker 01:
You have to make sure that once the menu's been relocated into application button bar 104,

[00:09:15] Speaker 01:
when it is selected, it does not launch the underlying message center application.

[00:09:22] Speaker 01:
And that's necessary to meet the unlaunched state requirement.

[00:09:25] Speaker 01:
Now that's very anomalous and idiosyncratic and illogical because every other button in application, button bar 104, does launch the underlying application.

[00:09:38] Speaker 01:
And the board recognized that the purpose of the application button bar 104 is to launch

[00:09:44] Speaker 01:
the underlying applications, and in addition, there is already a button for the messages application in application button bar 104.

[00:09:53] Speaker 01:
So there has to be some reason why a person of skill in the art would take that menu 206 off of the screen in Schnarl, which Schnarl says is there so that you know immediately what the messages are that you have, take that functionality away from the user,

[00:10:09] Speaker 01:
Degrade the quality of the user experience, and then make sure you put the button right in this one place that will meet the claim limitations.

[00:10:15] Speaker 00:
But your position is not that the board didn't go through the exercise of finding a motivation to combine.

[00:10:22] Speaker 00:
You're simply disagreeing with all the board's conclusions.

[00:10:25] Speaker 00:
I mean, they found your arguments unpersuasive.

[00:10:27] Speaker 00:
They relied on Apple's expert.

[00:10:30] Speaker 00:
They made specific findings of fact with respect to motivation to combine.

[00:10:34] Speaker 00:
And you're just asking us to say that you think it's more logical to think the opposite findings of that.

[00:10:40] Speaker 01:
Your Honor, I actually strongly disagree with that.

[00:10:43] Speaker 01:
And I think that our argument is very different than that.

[00:10:45] Speaker 01:
So what I am specifically urging the court to consider is that, yes, the board made a finding on a motivation to combine.

[00:10:53] Speaker 01:
We agree with that.

[00:10:54] Speaker 01:
And their finding was smaller screen size.

[00:10:57] Speaker 01:
But that motivation, the motivation to obtain smaller screen size, does not justify

[00:11:04] Speaker 01:
a person of skill in the art going from what schnarl was to what the board needed schnarl to become to meet the claim limitations.

[00:11:12] Speaker 01:
And so if you look at the law and KSR and active video and other cases about what the motivation to combine must be, it must be a motivation that compels the person or gets the person to arrange the prior combinations, quote, in the way the claimed invention does.

[00:11:29] Speaker 01:
And having a smaller screen motivation, if one were even there, which we do disagree with, having a smaller screen motivation might be a reason for a person of skill in the art to take menu 206 off the home screen.

[00:11:43] Speaker 01:
Maybe.

[00:11:43] Speaker 01:
But it's not a reason to then put it into a button, an application button bar 104 specifically.

[00:11:49] Speaker 01:
and then make sure that if you select that button, the application does not launch.

[00:11:54] Speaker 01:
And so what we're saying is there's an inconsistency and inadequacy between the why that underlies the board's decision and the what it is that the modification would have been.

[00:12:07] Speaker 01:
The why does not justify the full extent of the changes necessary.

[00:12:11] Speaker 00:
Well, the board found that both of the references were addressed to solving problems with small screen displays, right?

[00:12:17] Speaker 01:
That's true, yes.

[00:12:18] Speaker 00:
And then it said that Auberg fills the gap that we've identified in Schnorrl.

[00:12:23] Speaker 00:
So it did identify a gap in Schnorrl, but it said that Auberg did disclose how to fix that gap.

[00:12:33] Speaker 00:
And Apple's expert said, one of skill in the art would have understood that.

[00:12:36] Speaker 00:
I don't understand what the problem with the board decision is other than your disagreement with its factual conclusions.

[00:12:43] Speaker 01:
So the specific problem with the board's decision is this.

[00:12:46] Speaker 01:
ABURG teaches a couple of things that the board relied on.

[00:12:54] Speaker 01:
One, it teaches a special dynamic menu that can contain anything you want in it.

[00:12:58] Speaker 01:
You can put any items you want.

[00:13:00] Speaker 01:
And in that sense, it's not really much of a teaching.

[00:13:03] Speaker 01:
I mean, everyone knows in the field of art of GUIs that you can populate the menu with what you want.

[00:13:09] Speaker 01:
Secondly, it teaches that that special dynamic menu can be placed anywhere in the hierarchy of the device's GUI menus.

[00:13:17] Speaker 01:
in one embodiment, it's placed right at the top level in the main menu, where if they had put it there, it would not meet the claim limitations, because it wouldn't be reachable directly.

[00:13:28] Speaker 01:
But in other embodiments, it's placed in all kinds of other locations within the GUI.

[00:13:34] Speaker 01:
And out of all those possibilities, the board looked to the fact that ABER teaches you could put it in a specific place, and decided that a person of steel in the art would have put it

[00:13:44] Speaker 01:
in exactly the place necessary to arrive at the claim inventions.

[00:13:48] Speaker 01:
But there wasn't a rationale to support that choice of location that's so critical to the board's finding from among all the possibilities of locations where that menu could have gone.

[00:13:58] Speaker 04:
Counsel, you wanted to save some rebuttal time.

[00:14:00] Speaker 04:
You went into it.

[00:14:02] Speaker 04:
You can continue or save it.

[00:14:04] Speaker 01:
Thank you, Your Honor.

[00:14:04] Speaker 01:
I'll just close my opening remarks by saying the ABER teaching is that that dynamic menu could go anywhere.

[00:14:12] Speaker 01:
And our argument is the board lacked any reason why the menu would have been used in such a place that it would have been placed precisely in the location necessary to meet the claims, as opposed to the many other locations in the Schnarl GUI that it could have been placed into.

[00:14:29] Speaker 01:
And so that's why we say the result is hindsight bias and results oriented.

[00:14:33] Speaker 01:
And I'll save the rest of my time unless there are further questions.

[00:14:36] Speaker 04:
We will do that, counsel.

[00:14:39] Speaker 04:
Mr. Hall would remire it.

[00:14:46] Speaker 02:
May it please the court.

[00:14:48] Speaker 02:
Of course, the board found that each of the challenge claims was unpatentable in light of each of the two references, Schnurrell combined with Aberg, as well as Nason.

[00:14:58] Speaker 02:
So affirming on either of those would be sufficient.

[00:15:00] Speaker 02:
I'm happy to talk about Schnurrell first because that's been the focus of the argument so far today.

[00:15:05] Speaker 02:
As your honor notes, there was no challenge below to whether Schnurrell taught the unlaunched state that's just not there anywhere.

[00:15:12] Speaker 02:
the suggestion that if it's passed upon, of course it's passed upon very succinctly because it wasn't argued that nonetheless that allows them to make any argument they want on appeal has been rejected specifically in this court's decision, the Google versus Simple Air case that we cite.

[00:15:28] Speaker 02:
And for good reason, especially when you have the kind of limited APA review under Chenery.

[00:15:33] Speaker 02:
So I'm going to move to the other limitation, the reach directly limitation.

[00:15:38] Speaker 02:
And I'm happy to start with appellants

[00:15:43] Speaker 02:
page four of their reply brief, because I think what it shows is how very little the board had to rely on Ayberg to fill the gap, if you will.

[00:15:52] Speaker 00:
Well, what's your response to his last point, which is that he says that Ayberg was so vague in terms of where you would put this functionality that to say, by definition, you would look at Ayberg and then you would decide where to put it, that that's enough.

[00:16:09] Speaker 02:
So I think it's important to follow the board's

[00:16:12] Speaker 02:
The board starts with how much Shnurel itself teaches about this, right?

[00:16:18] Speaker 02:
Because Shnurel teaches that its windows are customizable, including specifically collapsible.

[00:16:25] Speaker 02:
And the board cites that a couple of different times on page 827 and again on 834.

[00:16:31] Speaker 02:
So collapsible to a single call.

[00:16:34] Speaker 02:
Yes, exactly.

[00:16:35] Speaker 02:
And so effectively, what's happening is you're taking a window that occupies, as you can see in the before picture on Replibri 4, a significant part of this relatively small screen size in the start window, and you're collapsing it.

[00:16:52] Speaker 02:
And where are you going to collapse it to?

[00:16:54] Speaker 02:
Well, if you're going to collapse it, there are really only a couple of different choices where to collapse it.

[00:16:59] Speaker 02:
And one of those is to 104.

[00:17:02] Speaker 02:
Now, this court's

[00:17:04] Speaker 02:
case law on obviousness, when there's one of a couple of different choices, each of which is obvious, you don't have to prove that one of them would necessarily be better than the other.

[00:17:16] Speaker 02:
They're both going to be obvious to the course of ordinary skill.

[00:17:19] Speaker 02:
And in terms of why 104, well, if we look at Aberg's figure three, and Aberg's figure three is reproduced in the

[00:17:32] Speaker 02:
at the Lee brief at page 9.

[00:17:33] Speaker 02:
It's also at appendix 1299.

[00:17:38] Speaker 02:
Aberg actually describes its special menu as at a same level, the top level, with phone book and settings.

[00:17:47] Speaker 02:
And main menu 104 in Schnurrell has address book and settings.

[00:17:53] Speaker 02:
And so to put it at the same level as those two same functionality that Aberg already described would have been

[00:18:02] Speaker 02:
obvious and in terms of Again, there's not a lot that abrog teaches but there's not a lot that it has to teach because all that you need to do is take schnurels Summary window, which is this is not It's displayed while these are not launched again That's not been challenged or wasn't challenged below and and take that summer window collapse it down as schnurel talks about and put it in 104 and

[00:18:30] Speaker 02:
Well, that's basically just taking it from the very top level and moving it one level down.

[00:18:36] Speaker 02:
And that is explicitly what Abert describes.

[00:18:41] Speaker 00:
Does Abert really teach anything other than collapsing the summary window into a button, essentially?

[00:18:48] Speaker 02:
Well, what it says is that you can have a special menu.

[00:18:51] Speaker 02:
And the special menu is described as those things that you want to reach most conveniently.

[00:18:58] Speaker 02:
You want those to be

[00:18:59] Speaker 02:
the ones you get to, and that's why Schnurrell put this on the start page because you want to be able to see this, this is the stuff you want to see most conveniently.

[00:19:10] Speaker 02:
And Schnurrell says now you can take that special menu with those most used things and you could put it at the very top or, and this is explicit, at columns 7, lines 25 to 29, it can be

[00:19:26] Speaker 02:
a top-level menu or, quote, submenu of any top-level menu.

[00:19:32] Speaker 02:
So basically, it's just saying you can move it one level down.

[00:19:36] Speaker 02:
And that's what you have to do.

[00:19:38] Speaker 02:
That's all you have to do, Tishnirel, to make it precisely disclose what it is that's claimed in the claims at issue.

[00:19:49] Speaker 02:
So again, the board, as Your Honor said before, Judge Omari, says all this.

[00:19:54] Speaker 02:
very explicitly, and then they answered the why question.

[00:19:58] Speaker 02:
Why would a PC have done this?

[00:20:00] Speaker 02:
They would have done it to solve the problem of small screens.

[00:20:04] Speaker 02:
And again, I think the before and after picture on reply page four explain exactly why that is.

[00:20:10] Speaker 02:
You have a cluttered start screen with no room for anything else, and by simply collapsing that summary window into main menu 104,

[00:20:24] Speaker 02:
gives you what they say is one, remove.

[00:20:27] Speaker 02:
That's now new real estate on a very small screen where real estate is very valuable to do something else with.

[00:20:34] Speaker 02:
That's what the board found that's very supportable.

[00:20:37] Speaker 02:
That's a finding of fact, substantial evidence review, well supported.

[00:20:42] Speaker 02:
But I want to turn to Nason because my colleague didn't actually mention that at all except in passing.

[00:20:49] Speaker 02:
And that is also well supported.

[00:20:52] Speaker 02:
The board

[00:20:53] Speaker 02:
noted that in nascent nascent explicitly says that when you click on one of the active buttons within the summary window that launches the application and the the expert said that a pasito would have understood from that that you can have the application in an unlaunched state to launch it when you click the button because that's explicitly

[00:21:21] Speaker 02:
what Mason describes.

[00:21:25] Speaker 02:
Below and here, conversant does not deal with that explicit textual disclosure in Mason, that it is the pushing of the clicking of the button in the summary window that causes the application to launch.

[00:21:41] Speaker 03:
Can you just explain as an intuitive matter what I'm sure you'll appreciate is a little bit of an oddity

[00:21:49] Speaker 03:
Why is there not a redundancy when you say launch something and by the way, make sure that it's in an unlaunched state when you launch it?

[00:21:58] Speaker 04:
Well, I think... What's that, by the way?

[00:22:01] Speaker 03:
How could that be meaningful?

[00:22:03] Speaker 02:
Well, first, I just want to note that that argument of superfluity was not made below, but I don't think that the superfluity rule of construction is not an absolute rule.

[00:22:14] Speaker 02:
It's a canon of construction.

[00:22:17] Speaker 02:
Here we know why the limitation was added.

[00:22:20] Speaker 02:
It was because there was in the prosecution history, and this is described in the LG case that your honor sat on the panel, where there was another prior art reference called Richard.

[00:22:32] Speaker 02:
In Richard, there was app A and app B, and both were displayed.

[00:22:38] Speaker 02:
But app A was the active window.

[00:22:40] Speaker 02:
And you would click on app B to make it the active window.

[00:22:45] Speaker 02:
But even before that, they were both displayed.

[00:22:48] Speaker 02:
Now that had been relied on by the examiner as prior art to say that the claims were not patentable.

[00:22:56] Speaker 02:
And so they added the, in an unlaunched state, to write around that issue in Richard.

[00:23:04] Speaker 02:
But Richard, and it's very explicit in this court's decision in the LG case, in Richard, they were both displayed.

[00:23:13] Speaker 02:
And what's telling is that in the court's decision in LG, they sort of use displayed, not displayed, launched, unlaunched.

[00:23:23] Speaker 02:
Those are opposites, and they are synonymous or relative.

[00:23:27] Speaker 02:
You can use them synonymously as they do in the decision.

[00:23:30] Speaker 02:
That was the only issue that actually the parties agreed below and the board applied, unlaunched state meetings not displayed.

[00:23:40] Speaker 02:
The only argument that conversant made below was not to grapple with the explicit textual language of column three, but to say, wait, there's this figure, there's this figure 10, and it shows the summary window

[00:23:54] Speaker 02:
And it also shows in the display screen that the application has been launched.

[00:24:00] Speaker 02:
This is AOL.

[00:24:01] Speaker 03:
This is the America Online.

[00:24:04] Speaker 02:
Yes, AOL.

[00:24:06] Speaker 02:
And we explained in our reply brief, and the board cites the reply brief, that that's simply showing at a later stage, after you've clicked the button, after you've launched the application.

[00:24:19] Speaker 02:
Now, this argument that they're making now is trying to make it all more

[00:24:24] Speaker 02:
cumbersome, was not made below.

[00:24:27] Speaker 02:
Now, there is a kind of analogous issue that's presented with claims two and eight, which use a different word.

[00:24:34] Speaker 02:
They use the word open.

[00:24:36] Speaker 02:
And the board, in its discussion of those claims, points to the fact that in nascent, figure five shows the same summary window with nothing on the screen behind it.

[00:24:50] Speaker 02:
And then in figure six, it shows the same summary window.

[00:24:53] Speaker 02:
With Lycos opened, it's been, you've clicked the button, you've launched it.

[00:24:58] Speaker 02:
First, it's unlaunched, and the second, it's launched, i.e.

[00:25:01] Speaker 02:
displayed.

[00:25:02] Speaker 02:
Now, the conversion says, don't look at figure five, don't look at figure five because the board didn't rely on it.

[00:25:08] Speaker 02:
And I agree, the board didn't rely on it.

[00:25:10] Speaker 02:
They didn't rely on it because these were not the issues as they were framed before the board.

[00:25:15] Speaker 02:
And this is why waiver matters.

[00:25:18] Speaker 02:
You have to look only at the arguments that were made to the board and the board addressed them.

[00:25:23] Speaker 02:
Only argument they made before is figure 10 shows it as being displayed.

[00:25:29] Speaker 02:
Figure 10 is not even cited in the text of Nason.

[00:25:34] Speaker 02:
Figure 10 can't detract from what Nason's text in column three already discloses, which is that it is the selection of the active button.

[00:25:44] Speaker 02:
It says, mouse down, mouse up, that launches the application.

[00:25:50] Speaker 02:
If it was, and then, and then they rely, the board relies on Dr. Meyer's testimony that a Pesido would have understood that if it's the clicking of the button that launches the application to make the application in an unlaunched state before that.

[00:26:05] Speaker 00:
But the board also with respect to nascent relied on figure nine, which I didn't really understand.

[00:26:11] Speaker 02:
Figure nine, um, lays out in a graphical representation, the, uh, the cylinders, if you will,

[00:26:20] Speaker 02:
it kind of unrolls them, and there's no display there that's shown.

[00:26:27] Speaker 00:
It doesn't show any display.

[00:26:28] Speaker 02:
It doesn't show anything.

[00:26:30] Speaker 02:
If you go to figure 11, it also shows the canister.

[00:26:35] Speaker 02:
That actually shows the whole frame, and it shows nothing behind it.

[00:26:40] Speaker 02:
I think what they were pointing to is that the canister itself simply shows

[00:26:48] Speaker 02:
the windows, the summary window, the buttons that can be pushed.

[00:26:53] Speaker 02:
It doesn't require that anything else be launched or displayed.

[00:26:58] Speaker 02:
That's why they pointed to figure nine.

[00:27:00] Speaker 02:
I don't think it was a significant reliance on figure nine.

[00:27:03] Speaker 02:
I think it's really the text of column three that they're relying on.

[00:27:08] Speaker 02:
And again, we're not relying on figure five and figure six, but

[00:27:14] Speaker 02:
They are so explicit in showing the summary window without the application behind it and then with the application behind it after you've launched the application.

[00:27:27] Speaker 02:
The board pointed to that where this issue was actually kind of engaged in the sort of open language of Plans 2 and 8.

[00:27:35] Speaker 02:
They would have relied on the same had this been how the argument was framed below.

[00:27:40] Speaker 02:
So it's rarely either of these two is sufficient.

[00:27:45] Speaker 02:
to render the claims obvious.

[00:27:47] Speaker 02:
With respect to nascent, I do want to underscore that it was only with respect to claim 10 of the 020 and then the 476 patents that even the unlaunched state was raised.

[00:28:01] Speaker 02:
And I also want to point out that in Schnurrell, the fact that they didn't challenge it at all is itself telling.

[00:28:08] Speaker 02:
Because in Schnurrell as well, the disclosure in Schnurrell is that it's clicking,

[00:28:14] Speaker 02:
the active facts button that launches the application that was relied on by the board as showing that it was previously in an unlaunched state.

[00:28:25] Speaker 02:
They didn't even contest that with respect to Schnurrell.

[00:28:29] Speaker 02:
And for good reason.

[00:28:31] Speaker 02:
That's what's intuitive.

[00:28:32] Speaker 02:
That's what Dr. Myers testified to.

[00:28:34] Speaker 02:
And in nascent, it's the same thing.

[00:28:36] Speaker 02:
They simply pick on the fact that there's this one figure that happens to show it after you've pushed the button, after the application has been launched, to somehow detract from the teachings of Mason's explicit disclosures in the text.

[00:28:51] Speaker 02:
That's not the right way to read patents.

[00:28:53] Speaker 02:
There's no requirement that the board do so.

[00:28:56] Speaker 02:
It was substantial evidence, if there are no further questions.

[00:28:59] Speaker 04:
Thank you.

[00:28:59] Speaker 04:
Thank you, counsel.

[00:29:03] Speaker 04:
Dr. Baruchin has some time remaining, not much.

[00:29:07] Speaker 04:
Thank you, Your Honor.

[00:29:12] Speaker 01:
Your Honor, let me start where my colleague left off.

[00:29:15] Speaker 01:
We do not pick on the fact that Figure 10 of Nason happens to show exactly that Nason in that embodiment doesn't meet on launch date.

[00:29:26] Speaker 01:
What we're doing with Figure 10 is we're saying

[00:29:29] Speaker 01:
to meet on launch state, there's something more that's required than simply showing that you can press a button to launch an application.

[00:29:37] Speaker 01:
Because if the application were already launched in another or different view, if it were in the background, if it were just sitting there minimized, if in any of those instances, clicking a button to launch an application that's already been launched would not meet on launch state.

[00:29:52] Speaker 01:
Figure 10 is an example of a situation like that that Mason teaches.

[00:29:56] Speaker 01:
The Richard App A, App B example is another example of a situation like that that's even more telling where the size of App B that's shown is very small but nonetheless it's launched and we explained that during the prosecution history and argued it in the last core wireless appeal and I think the panel agreed with us as can be seen from their decision.

[00:30:17] Speaker 01:
In nascent there is no evidence and the board made no finding as to whether

[00:30:22] Speaker 01:
The applications that can be launched were ever previously in an on-launch state.

[00:30:27] Speaker 01:
The board simply reaches that conclusion because it's what's necessary to find unpatentability, but there's no actual evidence underlying it.

[00:30:35] Speaker 01:
With respect to Schnarl and Aberg, it was very interesting what counsel for Apple described.

[00:30:45] Speaker 01:
The process is exactly what's wrong with the board's decision.

[00:30:48] Speaker 01:
His description was you could collapse a menu in Schnarl.

[00:30:53] Speaker 01:
That's a possibility.

[00:30:54] Speaker 01:
And then you could put it in application button bar 104.

[00:30:57] Speaker 01:
Fine.

[00:30:58] Speaker 01:
Why would you do it?

[00:31:00] Speaker 01:
And would somebody have done it?

[00:31:01] Speaker 01:
The mere fact that these are things that could be done is not a sufficient basis to find unpatentability.

[00:31:07] Speaker 01:
And there are many reasons why someone would not have been motivated to take those steps.

[00:31:12] Speaker 01:
And ARCTIC-CAD and AIT versus RPX, which we cite, tell us that the board has to consider reasons that detract from a motivation to combine, not only reasons that support it.

[00:31:24] Speaker 01:
The board did not do that here.

[00:31:25] Speaker 01:
And respectfully, we ask for reversal or, at a minimum, remand for further consideration, unless there are further questions.

[00:31:32] Speaker 04:
Thank you, counsel.

[00:31:33] Speaker 04:
We will take the case under review.