[00:00:00] Speaker 05:
Which brings us to our next case, IBG Trade Station versus Trading Technologies, 2017, 2052 and 53, Mr. Pickhart.

[00:00:17] Speaker 05:
Welcome back.

[00:00:25] Speaker 02:
Good morning.

[00:00:27] Speaker 02:
May it please the court.

[00:00:28] Speaker 02:
I want to return again to the 101 issue.

[00:00:32] Speaker 02:
Set aside the issue of whether it is legally appropriate to make subsidiary fact findings on the first step of Ballast I. If we look to the claims of the 132 patent, any of the claims in the four and fault patents here today, as a matter of law, those claims are directed to an abstract idea, as this court has held in Electric Power Group, Amaranth,

[00:00:57] Speaker 02:
interval licensing.

[00:00:59] Speaker 02:
The mere display or processing of information is an abstract idea.

[00:01:07] Speaker 02:
And like the patents in those cases, the claims of the 132 and the other patents in these involved matters, they don't either describe or claim any improved engineering of the computer or the software itself.

[00:01:21] Speaker 02:
In fact, the steps of the patents are all results or oriented we have.

[00:01:27] Speaker 02:
displaying steps that conclude, ultimately, with the single action click of a mouse to send a trade.

[00:01:34] Speaker 03:
I understand your arguments on the merits.

[00:01:38] Speaker 03:
But what do we do?

[00:01:40] Speaker 03:
You stood up and said, as a matter of law, these claims are directed to an abstract idea.

[00:01:45] Speaker 03:
But isn't this another patent that was in the CQG case, and the court expressly said it was not directed to an abstract idea?

[00:01:58] Speaker 03:
You didn't even stand up this time and told me, oh, there's different evidence.

[00:02:00] Speaker 03:
You said, as a matter of law, they're directed to abstract.

[00:02:03] Speaker 03:
So how do we do that?

[00:02:05] Speaker 03:
How do we say, when another panel of this court has looked at the exact same patent, the exact same claims, the exact same issue, and you just said, as a matter of law, we should do the opposite of what they did?

[00:02:21] Speaker 02:
I just want to clarify the first point.

[00:02:22] Speaker 02:
So perhaps I misunderstood Judge Laurie's statement up front.

[00:02:27] Speaker 02:
So it is our first line position that, given the differing factual records of these cases and CQG.

[00:02:33] Speaker 02:
I get it.

[00:02:34] Speaker 02:
I get it.

[00:02:35] Speaker 03:
You're not waving that argument.

[00:02:36] Speaker 03:
Absolutely not.

[00:02:36] Speaker 03:
You're just saying, I'm trying not to retread on the thing we already argued over.

[00:02:40] Speaker 02:
That is our absolute first position.

[00:02:41] Speaker 03:
Please, OK, I will absolutely take everything that you say thereafter with the caveat that everything you said in the first argument equally applies here.

[00:02:48] Speaker 03:
And I won't make you re-say it.

[00:02:50] Speaker 02:
I think that the, I'm telling you something that's unremarkable, that the 304 and the 132 patents

[00:02:57] Speaker 02:
Essentially, rise and fall of the records are insignificantly different to require different responses.

[00:03:02] Speaker 05:
Do you want to deal with obviousness?

[00:03:04] Speaker 02:
Yes.

[00:03:04] Speaker 02:
So if we talk about the three claims that the board found to be non-obvious, and just to reorient this court, these were claims 29, 39, and 49.

[00:03:22] Speaker 02:
And they require showing the last quantity traded and the last

[00:03:26] Speaker 02:
a traded price.

[00:03:28] Speaker 02:
The prior art showed the last traded price, forgive me.

[00:03:36] Speaker 02:
That was in the Gutterman reference.

[00:03:39] Speaker 02:
It is also shown, and what we found missing there was the last traded quantity of no figure two in the patent, which the patentee admits is prior art to the 304 claims.

[00:03:55] Speaker 02:
associates the last traded quantity with the last traded price.

[00:03:58] Speaker 02:
The patent itself says that markets won't accept orders if it doesn't have at least the trade order price and the trade order quantity.

[00:04:08] Speaker 02:
So we argued to the board that having disclosed the last traded price in Gutterman, the idea of associating last traded quantity would have been obvious.

[00:04:19] Speaker 02:
And what the board did that was erroneous, it applied an inflexible

[00:04:23] Speaker 02:
obviously standard and simply looked at the art and said, well, the element is missing and it stopped there and didn't go the next step to decide whether it nevertheless would have been obvious given what was not disputed about, what was in the contents of the prior art.

[00:04:40] Speaker 02:
And we also submit that something as trivial as providing some additional information that was known in the art to be using these GUIs is not something that ought to be given patentable weight.

[00:04:52] Speaker 02:
That is what we should know.

[00:04:56] Speaker 02:
if there are no further questions on that, or turns to the Alice issue.

[00:05:03] Speaker 02:
So we believe, of course, that the different factual records require a different conclusion as to step one of Alice.

[00:05:08] Speaker 02:
And then if we turn to the second step under Alice, there's nothing in these claims that would indicate the presence of an inventive concept.

[00:05:18] Speaker 02:
As I mentioned in the first argument, the patent itself states that it can be implemented on essentially any computer.

[00:05:26] Speaker 02:
It states that it uses simple algorithms.

[00:05:29] Speaker 02:
It is agnostic as to how the information that is displayed is mapped from the processor to the GUI.

[00:05:35] Speaker 02:
It doesn't disclose any particular engineering techniques.

[00:05:41] Speaker 02:
It doesn't purport to improve the functioning of the processor, the networks that are used to connect to the exchange, or how the GUI is programmed.

[00:05:49] Speaker 03:
I don't want to hear any more about this.

[00:05:51] Speaker 03:
So I'd like to move you, though, to corroboration.

[00:05:53] Speaker 03:
I know it's technically his appeal, but we're way past that at this point.

[00:05:57] Speaker 03:
Tell me about printed publication, public accessibility and corroboration.

[00:06:00] Speaker 03:
You'll get your chance, if you don't mind.

[00:06:05] Speaker 03:
Or save all your time for rebuttal to talk about that, whichever way you want to do it, your choice.

[00:06:09] Speaker 02:
I'm happy to.

[00:06:10] Speaker 02:
If there's a particular point on the corroboration that I can address, I'd like to do that.

[00:06:13] Speaker 02:
Otherwise, I'll simply point out here that we do have corroborated evidence of the public availability of the TSE manual.

[00:06:22] Speaker 02:
Mr. Kawashima testified.

[00:06:24] Speaker 02:
both in the district court and in a deposition at the PTAB about how the TSC manual was disseminated.

[00:06:33] Speaker 02:
He talked about the date on which it was disseminated.

[00:06:35] Speaker 03:
Yeah, but there's a question about whether or not his testimony needs to be corroborated.

[00:06:38] Speaker 02:
Right, and his testimony is corroborated by other documents in the record, including the TSC manual itself, right?

[00:06:43] Speaker 03:
Which has its date on it.

[00:06:44] Speaker 02:
Yes, the TSC manual has the date.

[00:06:46] Speaker 03:
And even though you didn't translate everything into English, the date is the date.

[00:06:49] Speaker 03:
You can see it pretty clearly.

[00:06:51] Speaker 02:
Well, we have a translated version of the manual itself.

[00:06:54] Speaker 02:
There's some other documents in there.

[00:06:55] Speaker 03:
No, it wasn't entered.

[00:06:56] Speaker 03:
I thought, if I remember the facts right, a translated version wasn't proffered in this case to the office.

[00:07:01] Speaker 03:
Is that right?

[00:07:03] Speaker 02:
Not aware of that point.

[00:07:04] Speaker 03:
But it wouldn't matter, because the date is sort of universally understood.

[00:07:08] Speaker 03:
It's a bunch of numbers.

[00:07:10] Speaker 02:
Mr. Kawashima was deposed about what date was in that manual.

[00:07:14] Speaker 02:
He had a translator present.

[00:07:16] Speaker 02:
I submit that that's sufficient.

[00:07:17] Speaker 02:
If you look at what's in the Joint Appendix, the date is quite clear what it is.

[00:07:20] Speaker 02:
He also testified as to the lead up to the dissemination of the TFC manual.

[00:07:25] Speaker 02:
If you look in the record at Joint Appendix 9661 and thereafter, he talked about in the 1997 period that there was a briefing of market participants to alert them of the changes that were coming, the new trading interface that the exchange would use.

[00:07:42] Speaker 02:
And then we see in 1998, Mr. Kawashima testifies that again there's a notice

[00:07:47] Speaker 02:
and the manuals themselves, and the participants were invited to come in and receive them.

[00:07:51] Speaker 02:
Mr. Kawashima says that he distributed them.

[00:07:54] Speaker 02:
The board looked at all that evidence, including the reference itself, the CSE manual, and said that the things that are in the manual confirm what Mr. Kawashima said, not just the date, but confirmed that the manual was there to teach new traders how to use this new interface, as well as the market participant, the new trade people, how to connect to the

[00:08:16] Speaker 02:
the interface and the exchange itself.

[00:08:20] Speaker 02:
Judge, I don't know if you want to hear on the public dissemination point as well or just the corroboration?

[00:08:26] Speaker 03:
It was mainly just corroboration.

[00:08:29] Speaker 02:
That's all.

[00:08:30] Speaker 02:
I'll reserve the remainder for you.

[00:08:32] Speaker 05:
We'll hold it for you, Mr. Picard and Ms.

[00:08:34] Speaker 05:
Allen.

[00:08:42] Speaker 05:
As I mentioned, you needn't be repetitive.

[00:08:45] Speaker 00:
Thank you, Your Honor.

[00:08:46] Speaker 00:
I just would like to quickly just clarify the issue we were discussing earlier.

[00:08:50] Speaker 00:
I don't think trading technologies hasn't pointed to anything in these particular statutes that would prevent the board from considering the constitutional retroactivity challenges that they're now raising to this court.

[00:09:02] Speaker 00:
Unlike the case that they cite, it would not have been futile for them to raise these issues before the board, because the board could have declined to institute review or could have terminated review if the board agreed.

[00:09:15] Speaker 00:
With respect to whether the board could consider these issues this case is in the same posture as in Ray DBC Where the parties had raised an appointments clause challenge to the board of patent appeals and interferences and This case is in the same posture as that case So we do think the board would have had jurisdiction to consider it consider takings claim cases Takings claims and to consider right to a jury trial in the Seventh Amendment.

[00:09:39] Speaker 03:
You think those are within the board's

[00:09:41] Speaker 03:
jurisdiction to decide whether there's a seventh amendment right to a jury trial is something an administrative body can decide as a matter of law?

[00:09:51] Speaker 00:
The board could have decided the issue and then declined to institute review if they agreed that it wasn't proper to continue with covered business method review of these patents because they issued prior to the AIA.

[00:10:05] Speaker 00:
But I just want to make sure, I know we've talked a lot about forfeiture, but I want to make sure that

[00:10:10] Speaker 00:
The primary reason I'm here is to answer any concerns that the court has on the due process and the takings issue.

[00:10:16] Speaker 00:
And so I want to make sure that I've addressed any concerns that you all have about either of those cases and those arguments.

[00:10:22] Speaker 00:
And again, we think this case is easier than Patleck's on the due process issue.

[00:10:26] Speaker 00:
And then on the takings issue, we think a cancellation certificate would only be issued after this court has also determined any claims are unpatentable.

[00:10:36] Speaker 00:
And at that point,

[00:10:38] Speaker 00:
it rests on both the determination from this court and from the PTO that there never was a valid property interest in the first place.

[00:10:44] Speaker 00:
And in that sense, it's very similar to when a district court would find a patent invalid in litigation.

[00:10:49] Speaker 05:
That's it.

[00:10:54] Speaker 05:
Thank you, Ms.

[00:10:54] Speaker 05:
Allen.

[00:10:55] Speaker 05:
Mr. Gannon.

[00:11:06] Speaker 01:
The 103 challenge hinges on the TSE manual.

[00:11:11] Speaker 01:
TT has been dealing with this TSE manual for 15 years.

[00:11:14] Speaker 01:
These patents have been re-examined and allowed over TSE.

[00:11:18] Speaker 01:
We had a trial in the Eastby case back in 2007 based on the same evidence.

[00:11:24] Speaker 01:
The TSE manual and the testimony from one witness, Mr. Kawashima, and the jury in that case found that that reference did not even qualify as prior art.

[00:11:36] Speaker 03:
Are you going to address the corroboration requirement that you argued?

[00:11:41] Speaker 01:
Yes.

[00:11:45] Speaker 01:
In the last 10 years since the eSpeed case, nothing's changed.

[00:11:49] Speaker 01:
There's no new evidence in the case.

[00:11:52] Speaker 01:
Here the board erred because the board thought corroboration wasn't even required in the first instance.

[00:11:59] Speaker 03:
Did it say that or did it say that the combination, because it points out that the document has its own date on the front,

[00:12:06] Speaker 03:
And then you have the testimony of, how do you say his name?

[00:12:10] Speaker 01:
Kawashima.

[00:12:11] Speaker 03:
Mr. Kawashima.

[00:12:13] Speaker 03:
So aren't those two things corroborative of each other?

[00:12:16] Speaker 01:
I think what the board did was the board said you don't need corroboration.

[00:12:20] Speaker 01:
And the reason why the board said that is because IB was arguing you do not need corroboration when you're talking about public accessibility or whether the

[00:12:29] Speaker 01:
the witness is interested or not.

[00:12:31] Speaker 01:
So the board never looked at that.

[00:12:33] Speaker 01:
I believe the board never considered the corroboration issue at all.

[00:12:36] Speaker 03:
Do you agree that the combination of the date on the... I'm not trying to sandbag you.

[00:12:42] Speaker 03:
Are you familiar with the Nobel Biocare Services case, which was issued from this court in September of 2018?

[00:12:47] Speaker 03:
It's not in your brief because your briefs were filed prior to the issuance of this case.

[00:12:51] Speaker 03:
I'm aware of the case.

[00:12:52] Speaker 03:
Because that case expressly holds that the date on the document in combination with testimony is sufficient.

[00:12:58] Speaker 01:
I actually respectfully disagree with that, Your Honor.

[00:13:00] Speaker 01:
The testimony of the actual distribution of 1998, there's no corroboration of when Mr. Kawashima allegedly gave the document out.

[00:13:12] Speaker 01:
The date on the TSE manual is not a copyright date.

[00:13:15] Speaker 01:
It doesn't indicate public accessibility.

[00:13:18] Speaker 01:
It's just a date on a document, which could mean when the document.

[00:13:22] Speaker 03:
This is the rule of reason.

[00:13:24] Speaker 03:
It's a question of fact.

[00:13:27] Speaker 03:
under the rule of reason, if I read the board's opinion as holding that the date on the document is the likely date it was circulated and that that's what Mr. Kawatima says, isn't that enough of a standard review?

[00:13:46] Speaker 03:
I mean, that's your problem.

[00:13:47] Speaker 03:
I mean, maybe I wouldn't have decided it the same way in the first instance.

[00:13:49] Speaker 03:
Maybe you're making a compelling case that the board should have bought, but that's

[00:13:54] Speaker 03:
It's a pretty tough case on appeal.

[00:13:55] Speaker 01:
Well, see, the problem, Judge Moore, is that IB, this argument about corroboration, this is a new argument that's made on appeal for the first time.

[00:14:04] Speaker 01:
They never argued that below, because they were telling the board, you don't need corroboration.

[00:14:08] Speaker 01:
And why were they arguing that?

[00:14:09] Speaker 01:
Because they didn't have corroboration.

[00:14:12] Speaker 01:
A date that's not copyrighted, just a random date on a document, does not corroborate

[00:14:19] Speaker 01:
his testimony that he gave the date out in 1998.

[00:14:22] Speaker 03:
What about when you say it doesn't?

[00:14:24] Speaker 03:
First off, that's a question of fact.

[00:14:26] Speaker 03:
You can't say that as though it's a rule of law that a date, unless it's a copyright date, it can never be sufficient for corroboration.

[00:14:33] Speaker 03:
It's a question of fact under a rule of reason approach.

[00:14:36] Speaker 01:
It's a question of fact.

[00:14:37] Speaker 01:
But again, at best, that date would only suggest, at best, when the document was generated internally.

[00:14:45] Speaker 01:
The question is, does a date that's not copyrighted

[00:14:49] Speaker 01:
Does that indicate that because we- Time out, time out.

[00:14:52] Speaker 03:
I get my Washington Post every day.

[00:14:54] Speaker 03:
It has the day I receive it on it.

[00:14:56] Speaker 03:
Are you telling me that's the day it was generated?

[00:14:58] Speaker 03:
It wasn't.

[00:14:58] Speaker 03:
It was generated the night before.

[00:15:01] Speaker 01:
Well, but here, though, what matters is, was the document actually handed out on that date?

[00:15:09] Speaker 01:
And that's the problem.

[00:15:10] Speaker 01:
The problem is that that date doesn't corroborate that testimony.

[00:15:15] Speaker 01:
And in the 10 years since the e-Speed trial,

[00:15:18] Speaker 01:
We do not have any other evidence from a third party actually having the manual, no log of somebody who actually picked the manual up, no emails, no testimony from any other party.

[00:15:30] Speaker 01:
That's why they were telling the board, you don't need corroboration.

[00:15:33] Speaker 01:
And that's why the board never even looked at it.

[00:15:36] Speaker 01:
And now I'd be saying, oh, we're going to make a new argument on appeal.

[00:15:40] Speaker 01:
It was corroborated.

[00:15:42] Speaker 01:
There's a second reason why TSE doesn't qualify as prior

[00:15:48] Speaker 01:
And that is the public accessibility issue.

[00:15:52] Speaker 01:
TSE was not publicly accessible to persons of ordinary skill in the art.

[00:15:59] Speaker 01:
This is not a library case.

[00:16:03] Speaker 03:
It's interested persons, right?

[00:16:05] Speaker 03:
Isn't that the standard?

[00:16:06] Speaker 03:
Interested person?

[00:16:07] Speaker 01:
It's a person of ordinary skill in the art.

[00:16:09] Speaker 03:
You believe that the legal standard is it has to be distributed to persons of skill in the art.

[00:16:13] Speaker 01:
It has to be.

[00:16:15] Speaker 01:
A person of ordinary skill in the art exercising reasonable diligence has to be able to have access or get access to the document.

[00:16:23] Speaker 01:
There has to be some pathway.

[00:16:26] Speaker 01:
And so in this case, this is not a library case where you can go to the library and get it.

[00:16:32] Speaker 01:
It's not a trade show case or some other public meeting.

[00:16:35] Speaker 01:
So there's no pathway for a person of ordinary skill in the art to get the document.

[00:16:40] Speaker 01:
And so here's the problem.

[00:16:41] Speaker 01:
And this is the problem with

[00:16:43] Speaker 03:
Well, who is Mr. Kawashima saying the documents were distributed to?

[00:16:48] Speaker 01:
That's the problem.

[00:16:50] Speaker 01:
The problem is, the testimony is, he said he handed out a few copies to 200.

[00:16:57] Speaker 01:
Nope.

[00:16:58] Speaker 01:
He actually testified.

[00:17:00] Speaker 01:
The original testimony was, hey, this manual was given out to 200 people.

[00:17:07] Speaker 01:
But in the second deposition, it wasn't mailed out.

[00:17:12] Speaker 01:
to these TSE members.

[00:17:13] Speaker 01:
There was no mailing out.

[00:17:14] Speaker 01:
It wasn't given out to them.

[00:17:16] Speaker 04:
The only testimony... The board cites Kawashima's testimony to support that two copies of the manual were disseminated to approximately 200 large companies.

[00:17:27] Speaker 04:
It seems to me that it's large companies who would be interested or would use the Tokyo Stock Exchange.

[00:17:35] Speaker 04:
And in addition to that, the

[00:17:41] Speaker 04:
The GUI itself was up on the New York Stock Exchange, right?

[00:17:46] Speaker 01:
Actually, Judge Rainer, there's no evidence of that, of whether the system was out.

[00:17:52] Speaker 01:
No evidence at all.

[00:17:53] Speaker 01:
Again, the problem with their cases, and the testimony from Kawashima was he personally handed out a few copies.

[00:18:02] Speaker 01:
The problem is we don't know who he gave the document to.

[00:18:07] Speaker 01:
We don't know the name of the person.

[00:18:09] Speaker 01:
We don't know whether they were posis.

[00:18:10] Speaker 01:
So here's the problem.

[00:18:12] Speaker 01:
How would a person of ordinary skill in the art ever know how to get the document, even if he did give it out to unidentified people?

[00:18:20] Speaker 01:
Where's the roadmap?

[00:18:23] Speaker 01:
The board never made any findings that a person of ordinary skill in the art could find that document, even if it was given out to unknown people.

[00:18:31] Speaker 01:
That's the problem.

[00:18:31] Speaker 01:
There's no link.

[00:18:33] Speaker 01:
This case is-

[00:18:35] Speaker 03:
I guess I'm confused.

[00:18:36] Speaker 03:
Are you saying for this to be publicly accessible, any person of skill in the art would have to have been able to locate it?

[00:18:42] Speaker 03:
Or what if he actually gave it to five people who were undoubtedly people of skill in the art?

[00:18:47] Speaker 03:
I'm just trying to understand what you think the legal standard is.

[00:18:50] Speaker 01:
I think in a case where you don't have a library or you don't have a public meeting place where a person of ordinary skill in the art exercising reasonable diligence can get to it, then if it's just, hey, I handed it out,

[00:19:03] Speaker 01:
you better have evidence that you gave it to a person of ordinary skill in the arc.

[00:19:08] Speaker 03:
Or an interested person.

[00:19:09] Speaker 03:
I'm not so sure that that state of the law on that is completely settled.

[00:19:13] Speaker 01:
I will acknowledge your honor.

[00:19:14] Speaker 04:
How do you distinguish your position from our GoPro case, then?

[00:19:19] Speaker 01:
So the GoPro case was a public meeting place.

[00:19:21] Speaker 01:
It was a trade show.

[00:19:23] Speaker 04:
It was a trade show for distributors.

[00:19:27] Speaker 01:
It was for distributors, right.

[00:19:28] Speaker 01:
And this court found that a person of ordinary skill in the arc, exercising reasonable diligence, would have been able

[00:19:33] Speaker 01:
to get to that trade show, right?

[00:19:36] Speaker 01:
Here, we don't have that.

[00:19:37] Speaker 01:
There were no findings how a person of ordinary skill in the art would get to that TSE manual based on the testimony that Kawashima gave it out to God knows who.

[00:19:46] Speaker 01:
We don't know who got it.

[00:19:47] Speaker 01:
In a case where you're just giving it out, and I think Judge Moore, you hit on it, you have to show that you were distributed to a person of ordinary skill in the art.

[00:19:55] Speaker 01:
I believe that is the test.

[00:19:57] Speaker 01:
Or you have to show some other pathway.

[00:20:01] Speaker 03:
Well, OK.

[00:20:02] Speaker 03:
All right.

[00:20:03] Speaker 03:
I'm not sure what the test is, so.

[00:20:05] Speaker 01:
Well, under blue calypso, it's whether a person of ordinary skill and the art exercising reasonable diligence can find the document.

[00:20:12] Speaker 03:
And in GoPro and Acceleration Bay, there's some question about whether those, that's exactly the correct standard, or whether it's actually an interested person, but anyway.

[00:20:21] Speaker 01:
Well, so there are, I'm aware of federal circuit cases that talk about interested persons, but I believe, I believe blue calypso and other cases, later cases, make clear

[00:20:33] Speaker 01:
that it centers on a person of ordinary skill in the art.

[00:20:37] Speaker 01:
And another problem with what the board did, OK, so the evidence is he handed, allegedly, with no corroboration, he handed the document out to unknown people.

[00:20:47] Speaker 01:
This case is just like the recent C.R.

[00:20:50] Speaker 01:
Barb case from this court.

[00:20:52] Speaker 01:
And we filed a 28-J on that.

[00:20:54] Speaker 04:
Was there any evidence concerning specific companies that received the report, like Goldman Sachs and Merrill Lynch?

[00:21:03] Speaker 01:
There's no evidence in the record of who he gave it to, not a name of an individual.

[00:21:08] Speaker 04:
There's testimony that those companies did have a copy, did receive a copy.

[00:21:12] Speaker 04:
Maybe not from him, but they did have a copy.

[00:21:15] Speaker 01:
There's no evidence of that.

[00:21:18] Speaker 01:
The only evidence of record that came up in his second deposition was there was some meeting that allegedly happened in 1998, and some banks showed up at the meeting.

[00:21:29] Speaker 01:
But in terms of the document actually being handed out,

[00:21:33] Speaker 01:
There's no evidence of what company got the document.

[00:21:37] Speaker 01:
There's no evidence of who actually picked it up for the company.

[00:21:41] Speaker 01:
There's no evidence that the company or anybody in the company would be a person of ordinary skill in the art, even if they did get it.

[00:21:50] Speaker 04:
Why isn't possession proof of accessibility?

[00:21:55] Speaker 04:
If I had the document, why do I need to prove that I had access to it?

[00:22:02] Speaker 04:
If the evidence was that the document was handed out to 200... No, if Goldman Sachs has the document and they testify to that, why isn't that evidence that they had access to it?

[00:22:17] Speaker 01:
Because the problem is there's no evidence that Goldman Sachs had the document.

[00:22:22] Speaker 01:
There's none.

[00:22:23] Speaker 01:
There's no evidence of that.

[00:22:24] Speaker 03:
Well, I guess the problem is Mr. Kawashima

[00:22:29] Speaker 03:
testified, and this is the quote that it was, well not this part, it was distributed to about 200, and this is the quote, security companies for banks who traded on the TSC.

[00:22:37] Speaker 03:
I'm putting the last part on.

[00:22:39] Speaker 03:
So that is a quote from his testimony, and it's located in exhibit 1010 at pages 11 to 15.

[00:22:45] Speaker 03:
It's not going to help you because you didn't give it to us in the appendix, but that is his testimony.

[00:22:50] Speaker 03:
And so what, you gave us an awful lot on the appendices, but not that.

[00:22:58] Speaker 01:
The testimony was, again, it wasn't mailed out.

[00:23:02] Speaker 01:
The testimony was, allegedly, that these members could come pick up the document.

[00:23:10] Speaker 01:
But there's no evidence.

[00:23:12] Speaker 01:
Members could what?

[00:23:13] Speaker 01:
That members could actually come to the TSE to pick the document up.

[00:23:17] Speaker 04:
Isn't that access, evidence of access, accessibility, an invitation to come and pick it up?

[00:23:24] Speaker 01:
No, because, again, if you think about it,

[00:23:28] Speaker 01:
from the standpoint of a person of ordinary skill in the art here in Washington, DC.

[00:23:33] Speaker 01:
How would that person of ordinary skill in the art find the pathway to the document, even if it was at a bank?

[00:23:43] Speaker 01:
In other words, the law isn't, if the document is in the file of a company, that a person of ordinary skill in the art could access the document.

[00:23:52] Speaker 01:
That can't be the law.

[00:23:54] Speaker 01:
A person of ordinary skill in the art either has to have

[00:23:58] Speaker 01:
access through it, through a library or a public meeting?

[00:24:00] Speaker 03:
No, no, no.

[00:24:03] Speaker 03:
Why couldn't a person of ordinary skill in the art gain access to it?

[00:24:06] Speaker 03:
Because someone in his company brings it back.

[00:24:09] Speaker 01:
That actually is the reasoning that the board used.

[00:24:11] Speaker 01:
And the problem is that that's speculation.

[00:24:15] Speaker 01:
The board said, well, why couldn't somebody just walking down the street go to a TSE member and get it?

[00:24:20] Speaker 01:
Well, the problem is there's no evidence in the record to support that.

[00:24:24] Speaker 01:
That's the problem.

[00:24:25] Speaker 01:
There's no evidence.

[00:24:27] Speaker 01:
The only evidence of record put in by Mr. Kawashima was that he handed it out to, we don't know who got it.

[00:24:36] Speaker 01:
We don't know who got it.

[00:24:37] Speaker 01:
And the C.R.

[00:24:38] Speaker 01:
Bard case, the recent C.R.

[00:24:40] Speaker 01:
Bard case from this court is highly relevant, Your Honors, because in that case, it was the same situation.

[00:24:48] Speaker 01:
It was a case where somebody handed the document out and the testimony was, I gave it to nurses and surgeons

[00:24:56] Speaker 01:
and doctors.

[00:24:59] Speaker 01:
And this court rejected that because this court said, you didn't identify who got the document.

[00:25:06] Speaker 01:
You testified that you just gave it out to people, to nurses and to doctors.

[00:25:11] Speaker 01:
It's a CR bar.

[00:25:13] Speaker 01:
And that was a factual scenario where the document was just handed out.

[00:25:19] Speaker 01:
And if you don't identify who got it, it's not enough.

[00:25:23] Speaker 01:
And again, coming at it the other way, how would a person of ordinary skill in the art access the document, even if it was given to some unknown doctor?

[00:25:31] Speaker 03:
Just to clarify, that deposition of Mr. Kawashima, which I have in front of me, and I'm happy to lend you my copy if it would help, since it's not in the appendix, but he actually expressly says three or four separate times that it was distributed to 200 companies, all participants,

[00:25:48] Speaker 03:
who conduct futures option trading received it.

[00:25:52] Speaker 03:
So three times he says 200, because you say he testified only, he gave out only a couple copies.

[00:25:57] Speaker 03:
Three places here, he says 200 companies received this.

[00:26:01] Speaker 01:
But the evidence was, and it's the site at Appendix 20, Kawashima testified that the document was distributed to 200 companies, but he later clarified that the companies actually picked them up.

[00:26:16] Speaker 01:
allegedly picked them up, and he handed out some copies.

[00:26:21] Speaker 01:
So again.

[00:26:23] Speaker 05:
Thank you, Counsel.

[00:26:23] Speaker 05:
I know you've exceeded your time.

[00:26:27] Speaker 01:
Thank you.

[00:26:29] Speaker 05:
Mr. Pickhart has a little rebuttal time.

[00:26:31] Speaker 02:
I'd like to make a few points on the

[00:26:45] Speaker 02:
Kawashima TSE issue.

[00:26:46] Speaker 02:
The board makes a number of factual findings at appendix 20 through 24 about the circumstances of the dissemination of the TSE manual.

[00:27:00] Speaker 02:
If you closely read the briefs in this case, Trading Technologies does not raise a substantial evidence challenge to any of those fact findings.

[00:27:09] Speaker 02:
And as Judge Morris pointed out,

[00:27:11] Speaker 02:
The board found, as a matter of fact, that the reference was given out to 200 participants.

[00:27:16] Speaker 02:
We know something about it.

[00:27:18] Speaker 03:
Yes, but what do you think the legal standard is on who it has to be given to?

[00:27:22] Speaker 03:
And how do we know in this case, given the audience there and who a POSA is, that it was distributed to POSAs?

[00:27:33] Speaker 02:
So we believe that it is not necessary in a public dissemination case to show that

[00:27:40] Speaker 02:
copies of the reference were actually handed to POSAS.

[00:27:43] Speaker 03:
Okay, so to show it was actually given to them, how do we know it was accessible to them?

[00:27:47] Speaker 03:
Because it can't just be that if you hand a leaflet on nanotechnology out to a bunch of kindergartners walking down the street, right?

[00:27:56] Speaker 03:
It can't just be that that makes it publicly accessible to computer scientists, because maybe one of their parents is, or maybe they'll happen upon it somehow.

[00:28:03] Speaker 03:
You understand my problem.

[00:28:04] Speaker 03:
So obviously, my example is not this example, but that's my concern.

[00:28:08] Speaker 02:
I think if we look to GoPro and the Nobel BioCare cases, they're very instructive.

[00:28:13] Speaker 02:
In both of those instances you had trade shows.

[00:28:15] Speaker 02:
There's no evidence that skilled artisans attended those trade shows.

[00:28:18] Speaker 02:
In fact, in the Nobel BioCare case,

[00:28:21] Speaker 02:
the individual who was handing out the catalogs that testified he wasn't sure he even brought copies.

[00:28:25] Speaker 03:
So you don't think that skilled artisans have to receive it, but it has to be publicly accessible to them, doesn't it?

[00:28:33] Speaker 02:
It does.

[00:28:34] Speaker 02:
And so here we would have a reasonable roadmap for a skilled artisan.

[00:28:36] Speaker 02:
You've got the Tokyo Stock Exchange, one of the most prominent exchanges in the world.

[00:28:41] Speaker 02:
They have handed out manuals to hundreds of traders in the world.

[00:28:47] Speaker 02:
It stands to reason that

[00:28:49] Speaker 02:
The skilled artisan looking to improve or build a new trading interface would look to the materials associated with the existing interfaces in the marketplace, including one of the most prominent examples at the Tokyo Stock Exchange.

[00:29:03] Speaker 03:
But it wasn't just accessible to anyone who attended the Tokyo Stock Exchange or anybody who was interested in it.

[00:29:08] Speaker 03:
It was only given out, arguably, to these 200 people at that one instance.

[00:29:14] Speaker 02:
Well, yes, but that was the relevant public for purposes of the TSE manual.

[00:29:20] Speaker 02:
And there was no expectation.

[00:29:22] Speaker 03:
But those aren't necessarily people who fall into the category of a post-doc or an interested party, necessarily.

[00:29:29] Speaker 02:
I mean, the board did make findings, however, that the participants who received these manuals would have had professionals who would be in the business of building GUIs for them.

[00:29:41] Speaker 02:
Again, there's no

[00:29:42] Speaker 02:
substantial evidence challenges to the board's findings, essentially re-arguing the cases if they were being tried in the first instance.

[00:29:49] Speaker 05:
Thank you, counsel.

[00:29:50] Speaker 05:
We'll take that case under revisement.