[00:00:17] Speaker 02:
Okay, the next argued case is number 18-2007, Samsung Electronics Company Limited against InfraBridge PLC Limited.

[00:00:28] Speaker 02:
Mr. Kinnahy.

[00:00:29] Speaker 04:
May it please the court, Stephen Kinnahy for Samsung.

[00:00:33] Speaker 04:
Before I begin my argument, I wish to make a clarification with regard to one of the precedents on which we rely, GoPro.

[00:00:41] Speaker 04:
Our reply brief discussed GoPro as involving multiple modes of distribution

[00:00:46] Speaker 04:
and not distinguishing among them in terms of the inquiry into public accessibility.

[00:00:51] Speaker 04:
But this court ultimately rested its public accessibility decision on a single mode, namely the direct distribution of the reference to attendees of a trade show.

[00:01:02] Speaker 03:
But I thought you essentially conceded in your reply brief that you're not relying on the actual trade shows for purposes of your argument.

[00:01:13] Speaker 03:
I mean, you never cited to those trade shows

[00:01:15] Speaker 03:
You didn't say they were, you know, Torino didn't even predated the actual reference.

[00:01:22] Speaker 03:
So I thought it was pretty clear from your reply brief that you had backed away.

[00:01:27] Speaker 04:
It admitted that we have never taken the position below it before the board were here, that there was a distribution of WD4 at the Torino meeting in July.

[00:01:40] Speaker 04:
Right.

[00:01:40] Speaker 03:
But even as to the Geneva meeting,

[00:01:43] Speaker 03:
You never rely on that alone.

[00:01:45] Speaker 04:
We're not relying on it.

[00:01:46] Speaker 04:
The Geneva meeting was a few days after the one-year period.

[00:01:50] Speaker 04:
We are relying strictly on the email distribution and then separately the accessibility of the website.

[00:01:56] Speaker 03:
OK.

[00:01:57] Speaker 03:
Can I?

[00:01:57] Speaker 03:
I want to talk about the listserv.

[00:01:59] Speaker 03:
Yes.

[00:02:01] Speaker 03:
You took the position that the listserv was publicly accessible.

[00:02:06] Speaker 03:
And the board was not impressed with the testimony that you relied upon.

[00:02:12] Speaker 03:
But you also have a document that talks about what happens to these materials for purposes for facilitating cross-organizational communication.

[00:02:29] Speaker 03:
What does that mean?

[00:02:32] Speaker 04:
You're referring to the joint terms of reference of the standard setting organization.

[00:02:37] Speaker 04:
What they established was that all the JCT

[00:02:41] Speaker 04:
documents would be publicly accessible to permit cross-organizational communication between the standard-setting organizations, the parent groups, VCEG and MPEG, and also their members, which are the representatives of the leading parts of the academy and the industry.

[00:03:00] Speaker 04:
But I think, just to clarify, Your Honor, I think that the district court, or rather the board, did take issue with some of the factual statements

[00:03:10] Speaker 04:
with regard to accessibility, but the essential facts with regard to the email distribution to the listserv are undisputed.

[00:03:20] Speaker 04:
There are certain issues about the quantification of the recipients.

[00:03:24] Speaker 04:
We're willing to set that aside and just focus on what the board found was undisputed, which is that it went to the 254 attendees of the Torino conference.

[00:03:34] Speaker 03:
So there's an underlying legal premise here, and that is, and I think it's a

[00:03:40] Speaker 03:
at least it's an arguable one within the bounds of our case law, which is that when you are only talking about distribution to those involved in creating the reference.

[00:03:55] Speaker 03:
So the student and the students' advisors, they create a thesis.

[00:04:02] Speaker 03:
Just because it's shared among them, and even maybe incidentally to the librarian, we've said that's not enough.

[00:04:10] Speaker 03:
because those are the creators of the reference.

[00:04:13] Speaker 03:
And as I understand what the board is contemplating here is that what we are talking about is simply sharing the very information as it's being prepared among the creators.

[00:04:27] Speaker 03:
Now, there might have been a lot of creators, but from a legal perspective, that is the question.

[00:04:35] Speaker 03:
And so my question is, assuming I accept that proposition, so assuming I said,

[00:04:40] Speaker 03:
Well, if all you're doing is sharing it among the creators and that that wouldn't be enough.

[00:04:48] Speaker 03:
My biggest question is with respect to the listserv, does that go beyond the creators?

[00:04:57] Speaker 04:
I think I would take issue with the characterization of all the attendees of the meeting as creators in the way that you might think of an academic group just working

[00:05:09] Speaker 04:
on itself.

[00:05:10] Speaker 04:
We have to understand that.

[00:05:12] Speaker 04:
I'm not surprised you would take issue with that.

[00:05:14] Speaker 03:
What I'm asking you to assume is that I accept that proposition, that that's what was going on.

[00:05:21] Speaker 03:
Assuming that predicate, would your best argument be the listserv or the email?

[00:05:32] Speaker 04:
Well, the email is to the listserv, right?

[00:05:34] Speaker 04:
I think the second mode of distribution

[00:05:38] Speaker 04:
is the document repository website on the JCT, and then there's a third on the MPEG.

[00:05:44] Speaker 04:
But the listserv and the email are the same.

[00:05:47] Speaker 04:
What I would say is that the fact that the email distribution is to a large group, and the key is there is no restriction or expectation of confidentiality.

[00:05:59] Speaker 04:
They are able to distribute that and use it freely, and therefore it has entered the public domain.

[00:06:08] Speaker 04:
And that's why I think the fact that this is a standard setting organization is important.

[00:06:12] Speaker 04:
This is not an ordinary membership society, and that's why this is not a purely private combination.

[00:06:19] Speaker 03:
These are... So your argument is even if the only evidence is disclosure to the standard setting organization, we should just assume that it went beyond that?

[00:06:32] Speaker 04:
Well, that it was able to go beyond that, and therefore it was in the public domain.

[00:06:37] Speaker 04:
Because that was the very purpose of this standard organization.

[00:06:41] Speaker 04:
So you have here, and this organization are the representatives of the leaders of industry and the academy, and they're setting out to revise the prevailing industry standard.

[00:06:52] Speaker 03:
Well, if that's the case, why wouldn't you have presented evidence that, in fact, all of those people shared it with other people?

[00:07:00] Speaker 03:
That's not what you offered.

[00:07:03] Speaker 04:
This court has never required that.

[00:07:05] Speaker 04:
For example, in GoPro.

[00:07:06] Speaker 04:
That was a distribution to attendees of a trade show, which was not advertised or open to the public beyond the dealers.

[00:07:14] Speaker 04:
And there was no showing that anybody who attended it was actually a person of skill in the yard.

[00:07:21] Speaker 03:
And of course, we've had acceleration after that to explain the limits of GoPro.

[00:07:27] Speaker 03:
But what GoPro was talking about is that it was completely open to the public.

[00:07:33] Speaker 03:
And there was no indication that

[00:07:36] Speaker 03:
public wouldn't have had the ability to get that same information or attend the show.

[00:07:42] Speaker 03:
And here, I guess the question is, you're just saying that because they are members of the standard-setting organization, they're by definition the public.

[00:07:51] Speaker 03:
And what I'm saying is I think the board concluded that that wasn't the case, and that you presented no evidence that there were members that were, that anyone that were not members of that organization

[00:08:05] Speaker 03:
would have access to this.

[00:08:07] Speaker 04:
Well, Your Honor, I think one looks to the question not of would have access, but whether they could have with the exercise of reasonable diligence.

[00:08:16] Speaker 04:
And the fact that this is a standard setting organization and also that all the major companies are represented means that all the product engineers, all the product developers who are in these companies with reasonable diligence could get these documents

[00:08:32] Speaker 04:
from their representatives, or they could find them on the website, since this is a major industry event when you revise the prevailing state.

[00:08:40] Speaker 03:
So the board did ask the could have question as it relates to the website, and found that because it was so difficult to manipulate the website that they couldn't have.

[00:08:52] Speaker 03:
And that's a factual finding.

[00:08:55] Speaker 03:
So put that aside.

[00:08:59] Speaker 03:
Is it your position that at least as it relates to the email and listserv, the board didn't ask the right question?

[00:09:05] Speaker 03:
They didn't ask the could have question.

[00:09:07] Speaker 03:
They only asked the question of did they actually access it?

[00:09:12] Speaker 04:
Yeah, they didn't actually ask that question.

[00:09:14] Speaker 04:
Instead, they committed a legal error by requiring a showing that the people who attended comprise the quote, significant portion of those interested and skilled in the art.

[00:09:26] Speaker 04:
So they were looking at the attendees.

[00:09:28] Speaker 04:
I don't think that they, in that part of their decision, excluded the attendees.

[00:09:33] Speaker 04:
They said, you have to show that they're a significant part of the art.

[00:09:36] Speaker 04:
And that's plainly wrong, because in MIT, there was distribution to only seven.

[00:09:41] Speaker 04:
GoPro, there weren't any.

[00:09:42] Speaker 03:
But it's not just a pure question of numbers, though, right?

[00:09:46] Speaker 03:
I mean, it could be seven, or it could be 207, and they don't necessarily

[00:09:52] Speaker 03:
Just because seven in certain circumstances would be enough, it doesn't necessarily mean that 207 couldn't fail to qualify in the right circumstances.

[00:10:05] Speaker 04:
Well, I think, Your Honor, if you receive the actual document and there's no restriction of confidentiality, then you are free to disseminate it.

[00:10:14] Speaker 04:
And I think that's the essence of MIT, Medtronic, and GoPro.

[00:10:18] Speaker 04:
It's the ability to disseminate it.

[00:10:20] Speaker 04:
It's in the public domain.

[00:10:22] Speaker 03:
But I would also want to take issue with the idea that... Would your proposal be that we remand to the board to ask the right question, the could-have question?

[00:10:30] Speaker 04:
I think this court could determine it as a matter of law based on the essential facts, but at a minimum can remand to do the could-have question.

[00:10:39] Speaker 04:
But I do want to take issue with Your Honor's premise that every attendee was a creator of the document.

[00:10:46] Speaker 04:
That's really not true.

[00:10:47] Speaker 04:
I mean, the group as a whole is a creator, but it was

[00:10:50] Speaker 04:
It was Mr. Bross and the ad hoc committee that actually developed the standard.

[00:10:55] Speaker 04:
And then it's sent out to all the attendees.

[00:10:59] Speaker 04:
And it will be the subject of the forthcoming Geneva conference in which people can debate it and discuss it.

[00:11:04] Speaker 04:
So I don't understand any kind of creatorship to be the driving force of this court's case law.

[00:11:11] Speaker 04:
But I think it's not present here.

[00:11:12] Speaker 04:
These are attendees of the conference.

[00:11:15] Speaker 02:
Your theory is that it's irrelevant whether this was a working document

[00:11:19] Speaker 02:
or whether it was a final document, because one of the points which is made, this was the working group, a very large working group, creating these documents.

[00:11:31] Speaker 02:
This was the fourth iteration in circulation, not necessarily the final one, but that because there were so many participants in the working group, it somehow crossed the barrier from some sort of internal

[00:11:50] Speaker 02:
research type document to a public dissemination.

[00:11:55] Speaker 04:
Right, it's definitely not an internal research document.

[00:11:58] Speaker 04:
There were attendees... That's significant.

[00:12:00] Speaker 02:
I mean, here, what are we going to do?

[00:12:02] Speaker 02:
We've all got the internet now.

[00:12:04] Speaker 02:
People who are working together communicate by internet.

[00:12:08] Speaker 02:
Right.

[00:12:08] Speaker 02:
If someone can find some way of penetrating, we're told it wasn't easy but not impossible to get into these files

[00:12:19] Speaker 02:
that that converts them into a public bar rather than being limited as the participants in their ordinary course of evolution.

[00:12:32] Speaker 04:
There was no constriction of these documents to the public.

[00:12:36] Speaker 04:
It was the policy of the standard organizations and the JCTV that its documents would be public.

[00:12:44] Speaker 04:
And that's why the website was open to the universe.

[00:12:48] Speaker 04:
but it also suggests that the persons who who received the documents, the attendees, whether they had anything to do in terms of, you know, the actual discussion of the document, they're having input or they're monitoring it.

[00:13:03] Speaker 04:
But as the document was created by this, by the ad hoc working group out of the Torino conference and then distributed to anybody who's on the list, sir, which doesn't need to be.

[00:13:16] Speaker 02:
That's the difference that I'm really trying to focus on.

[00:13:18] Speaker 02:
We're asking that the line be drawn, that here it's labeled a working document.

[00:13:24] Speaker 02:
There's nothing that I saw to say this is now the final consensus of these 200 odd participants in the working group.

[00:13:34] Speaker 04:
It is not a final consensus.

[00:13:36] Speaker 04:
It was the best effort of the working group to take all the revisions that were suggested and to put it into a document and then distribute it.

[00:13:45] Speaker 02:
Okay, but nonetheless that's now a published document.

[00:13:47] Speaker 02:
at a statutory bar that's that's right that that's what you're asking that the board didn't agree with that and what one can see a certain logic in i suppose both positions because it is now accessible thanks to the internet right well but i think i'm not but i i don't think i don't want to only disagree the the sole grounds which rejected it was we didn't show

[00:14:12] Speaker 04:
that those attendees and the recipients of the listserv were a significant portion of the total art.

[00:14:18] Speaker 02:
Would that have made the difference in your position as to whether it is or isn't?

[00:14:23] Speaker 04:
I think it's improper.

[00:14:25] Speaker 04:
Our primary position would be that the documents were the distribution even to the 254 attendees would be enough.

[00:14:36] Speaker 03:
I'm on a lot of boards where we put together

[00:14:42] Speaker 03:
structure a proposal or, you know, a certification for particular class of lawyers.

[00:14:52] Speaker 03:
We talk about it, we exchange it, but it's never, in my mind, never contemplated that anyone beyond those of us that are putting it together are going to be reading it until it's final.

[00:15:07] Speaker 03:
And so I guess what I'm trying to understand is, is your

[00:15:11] Speaker 03:
that the mere fact that we're still engaging in this working document analysis, that you're saying that doesn't matter if there's a bunch of people doing it.

[00:15:21] Speaker 04:
Well, no.

[00:15:22] Speaker 04:
I would say I would presume that in the circumstance of working on a board, kind of come up with a document, that you're not publicizing that document.

[00:15:29] Speaker 04:
And there would be an expectation of confidentiality until you have a final product.

[00:15:34] Speaker 04:
That was not the way of the JCT.

[00:15:36] Speaker 04:
The JCT, all documents, including input documents, working drafts, were to be public.

[00:15:42] Speaker 04:
placed on their website.

[00:15:43] Speaker 03:
So what evidence other than Mr. Bross's testimony that the board found to be speculative and inconclusive, what evidence of the fact that everybody was able to share it publicly?

[00:16:00] Speaker 03:
What evidence did you present to that effect?

[00:16:03] Speaker 04:
Well, he did testify.

[00:16:04] Speaker 04:
I think he did have personal knowledge.

[00:16:06] Speaker 04:
And this would be a lack of substantial evidence to say,

[00:16:10] Speaker 04:
that he had no knowledge of whether others were on the listserv beyond the membership.

[00:16:17] Speaker 04:
He testified that they were, but the number, we don't know.

[00:16:21] Speaker 04:
He didn't testify to the number.

[00:16:22] Speaker 03:
He didn't testify that they were.

[00:16:23] Speaker 03:
I thought he testified that it was possible.

[00:16:27] Speaker 04:
Well, he testified that you could get access to the listserv, even if you were not a member.

[00:16:36] Speaker 02:
If you were clever enough, you could figure it out.

[00:16:39] Speaker 04:
No, I think through the listserv you can just simply, he testified that the request to be added to the listserv was generally granted.

[00:16:48] Speaker 02:
Yes, there was a very large working group.

[00:16:50] Speaker 02:
That was clear.

[00:16:51] Speaker 02:
Well, let's hear from the other side, and we'll save you rebuttal time.

[00:16:55] Speaker 04:
Thank you, Ron.

[00:17:04] Speaker 02:
Mr. Newman.

[00:17:05] Speaker 00:
Good morning, Your Honors.

[00:17:06] Speaker 00:
May it please the Court, I will start by

[00:17:09] Speaker 00:
admitting that there's no relation between myself, Michael Newman, and the senior judge presiding here today.

[00:17:16] Speaker 02:
I've seen your name.

[00:17:17] Speaker 02:
I'm glad to see your face.

[00:17:19] Speaker 00:
I've seen your name many times.

[00:17:22] Speaker 00:
Thank you.

[00:17:25] Speaker 00:
An issue here is the fact that we've got a board decision that has controlling findings of fact that compel that Samsung did not meet its burden below.

[00:17:38] Speaker 00:
The board set forth in this situation is a very fact intensive situation where the board set forth 13 pages of findings, including a finding that Samsung presented insufficient evidence to establish that either the email or the document repositories were publicly accessible.

[00:18:03] Speaker 03:
Well, what about the fact that Mr. Brosson did testify

[00:18:07] Speaker 03:
that the listserv was open to the public, that if you wanted on, you could get on.

[00:18:13] Speaker 00:
With respect to the listserv, I think that the board found below that that wasn't accessible because it wasn't indexed in any meaningful way.

[00:18:23] Speaker 00:
It was indexed by the name of a city that this developed.

[00:18:29] Speaker 00:
That was the website.

[00:18:31] Speaker 00:
Oh, so the listserv.

[00:18:32] Speaker 00:
The listserv.

[00:18:33] Speaker 00:
I'm sorry.

[00:18:35] Speaker 00:
We'll read your question again, then.

[00:18:36] Speaker 03:
Yeah.

[00:18:38] Speaker 03:
Put the website aside.

[00:18:39] Speaker 03:
I think that under Acceleration Bay, there's a good argument that the website was too problematic, especially in light of their findings.

[00:18:46] Speaker 03:
The listserv, Mr. Bross testified that the public could get onto the listserv.

[00:18:53] Speaker 03:
All they had to do was ask.

[00:18:56] Speaker 00:
Well, the board rejected that testimony as being unsubstantiated and not credible evidence, mere speculation by

[00:19:06] Speaker 00:
by Mr. Bros.

[00:19:08] Speaker 01:
Why is that speculation?

[00:19:10] Speaker 01:
Mr. Bros wasn't anyone just off the street.

[00:19:14] Speaker 01:
He was intimately involved with the organization, the task force, I guess it was.

[00:19:21] Speaker 01:
So, I mean, it strikes me that he was certainly in a position to know what was accessible and how easily it would be accessible at the website.

[00:19:32] Speaker 00:
Well, again, the finding below was that

[00:19:35] Speaker 00:
the testimony wasn't sufficient to establish that.

[00:19:39] Speaker 00:
And that there was deposition testimony, for example, where Mr. Brose sort of just brushed aside, I didn't know who was at the meetings.

[00:19:51] Speaker 00:
That wasn't my responsibility.

[00:19:52] Speaker 00:
But then juxtaposed to his testimony that, oh, these other people would be doing something, just unsupported.

[00:20:01] Speaker 03:
And so this goes back to the would versus could.

[00:20:05] Speaker 03:
discussion that I had with your friend on the other side.

[00:20:08] Speaker 03:
So the board, I mean, Bross certainly was qualified to testify that other people could access the listserv.

[00:20:19] Speaker 03:
What the board said was that he didn't provide any testimony that they actually did.

[00:20:25] Speaker 03:
And isn't that maybe the wrong question?

[00:20:28] Speaker 03:
The question has to be, could, with reasonable diligence, the public gain access to it?

[00:20:36] Speaker 00:
Well, no, I don't think so.

[00:20:37] Speaker 00:
I certainly don't think it's dispositive.

[00:20:40] Speaker 00:
There's a number of facts that all need to be considered, and that is exactly what the board did below.

[00:20:45] Speaker 00:
Whether or not someone could access this would be certainly maybe a fact that you would add into that analysis, but it's not dispositive, for sure.

[00:20:58] Speaker 00:
It shouldn't be a situation where we disturb the factual findings below

[00:21:05] Speaker 03:
for some speculative... Well, shouldn't we at least remand to have the board ask the right question?

[00:21:12] Speaker 00:
I don't think it's necessarily a wrong question by not asking that that's the wrong question.

[00:21:18] Speaker 00:
They asked whether this was publicly accessible and they found after looking at the nature of the disclosure that it was not publicly accessible and that's ultimately the finding of fact that controls here.

[00:21:33] Speaker 00:
And I'll point to the Bayer case as being even

[00:21:35] Speaker 00:
The intent that a reference is to be publicly available, even that intent should not be a controlling, should not control.

[00:21:47] Speaker 00:
So I would say that even if they went down and found that this reference could have been distributed, that's not controlling.

[00:21:56] Speaker 00:
Because what we're asking is, was it actually publicly available?

[00:21:59] Speaker 03:
What's your response to your friend's argument that

[00:22:03] Speaker 03:
there was no confidentiality requirement so that every single one of the participants, every single one of the attendees was free to pass it on to anyone else they wanted.

[00:22:17] Speaker 03:
And there was no restriction on that.

[00:22:21] Speaker 03:
Shouldn't that be a factor that we consider or that the board should consider?

[00:22:26] Speaker 00:
It should be, honestly.

[00:22:28] Speaker 00:
And then the board did consider it.

[00:22:30] Speaker 00:
It recited.

[00:22:31] Speaker 00:
that fact, it mentioned that we don't dispute that fact.

[00:22:34] Speaker 00:
And then it went through the fact-intensive role that it's supposed to be playing, and it determined that as a whole, the evidence weighed in favor of finding no public accessibility.

[00:22:49] Speaker 00:
And that ruling, there's no reason for this court to reweigh that evidence or to remand for an additional question that we know is not a dispositive question.

[00:23:06] Speaker 00:
At one point, I'd like to mention about whether or not there was a sufficient number of people in the JCTC group to somehow make this rise to a legal determination that if you've got that many people, there's going to be an assumption that it's common.

[00:23:26] Speaker 03:
At one point, it's hard to keep a lid on things, right?

[00:23:29] Speaker 00:
Well, certainly.

[00:23:30] Speaker 00:
I mean, it's hard to keep a lid on what I say to my colleagues sometimes.

[00:23:36] Speaker 00:
But there should not be a per se rule of law.

[00:23:41] Speaker 00:
This should be something that is left for the courts to decide on a case by case basis, which is well established that this is how we make these determinations.

[00:23:50] Speaker 00:
And the lower bodies should assess all of those facts.

[00:23:56] Speaker 00:
And then if they make a mistake, and typically, I've reviewed all of the cases that were submitted in the three or four that have come out since, the cases in which

[00:24:05] Speaker 00:
we've seen a vacation or remand is when the court considered not enough evidence.

[00:24:14] Speaker 00:
But here we've got their main complaint is that the court considered too much, that they considered they needed a publication or an advertisement.

[00:24:24] Speaker 00:
Certainly in a situation where public accessibility has not been shown as we have here, it is perfectly reasonable for the court to go above and beyond and say,

[00:24:34] Speaker 00:
Since we find that the email wasn't publicly accessible, then we'll look to see.

[00:24:40] Speaker 00:
Maybe they advertised it, but there's no evidence of that either.

[00:24:42] Speaker 03:
I mean, has there ever been a case where 250 people had access to information and we said that wasn't public?

[00:24:53] Speaker 00:
Which is a great point.

[00:24:55] Speaker 00:
No.

[00:24:56] Speaker 00:
And before Inray Hall, there had never been a case in which there was a single reference in a German library.

[00:25:01] Speaker 00:
This is the fact finder's decision.

[00:25:03] Speaker 00:
And what we're looking for is it

[00:25:05] Speaker 00:
supported by substantial evidence and I don't see that they've even challenged the ruling that the factual determination that this is not publicly accessible or certainly not the factual ruling that the evidence is inconclusive or is insufficient.

[00:25:31] Speaker 00:
Both of those are factual findings in the Acceleration Bay case

[00:25:34] Speaker 00:
We have a very clear statement that we will not disturb a finding of fact of insufficient evidence.

[00:25:42] Speaker 00:
And that's exactly what we have here, is a finding of insufficient evidence.

[00:25:46] Speaker 00:
Samsung was in control of all the evidence.

[00:25:50] Speaker 00:
Mr. Broce, you would imagine, would be in control of all that evidence.

[00:25:53] Speaker 00:
And after, in patent owners' reply, these problems were brought to the attention of Samsung.

[00:26:02] Speaker 00:
They rested on their laurels.

[00:26:04] Speaker 00:
They cited back to the institution decision.

[00:26:06] Speaker 00:
They didn't bring forth any evidence, which if what they're trying to argue is true, if it was disseminated, you'd imagine Samsung would have an email somehow within their own company that forwarded this draft throughout their company.

[00:26:22] Speaker 00:
They brought nothing forward.

[00:26:23] Speaker 00:
And the panel, the board below, rightly found that was insubstantial evidence.

[00:26:32] Speaker 00:
and I don't think that it's wise to get into an area where we're starting to say well when a group of people are drafting and working on a particular document that that's going to somehow rise to being publicly available where there's I'm imagining a lot of situations in which we won't want that determination to be made as a matter of law and we should leave that to the

[00:27:02] Speaker 00:
to the lower courts to weigh in account of case by case basis.

[00:27:12] Speaker 02:
You know, it looked to me as if what the board was trying to do was to recognize, there's no question that if there's a group of collaborators working together, communicating privately with each other, even if they're collaborating in the form of producing

[00:27:30] Speaker 02:
what here is called a working document, that that document is not in the public domain.

[00:27:38] Speaker 02:
But technology has moved us to the point, let's accept, where there may well be access to working documents that was not previously available.

[00:27:50] Speaker 02:
Here we have the board trying to preserve, perhaps, the confidentiality of

[00:27:58] Speaker 02:
groups of scientists, technologists working together.

[00:28:02] Speaker 02:
But perhaps, perhaps we've crossed that bridge, whether by hack or by ingenuity, whatever else, working documents using now what is the standard method of interaction and communication can be penetrated.

[00:28:21] Speaker 02:
And if there are large enough numbers involved, those are factors to be considered.

[00:28:28] Speaker 02:
Maybe the rules have changed.

[00:28:30] Speaker 02:
There's no longer perhaps an expectation of confidentiality when you're only in your fourth draft of a document and that it becomes part of the public domain and that interested persons can figure out how to find it.

[00:28:48] Speaker 02:
Now, so here we have the board saying, no, we don't like that.

[00:28:53] Speaker 00:
How long can that last?

[00:28:55] Speaker 00:
Yeah, I mean, if we progress to a situation in which groups of individuals can no longer assume that their drafts are going to be not subject to public review because of hackers or whatever, then we've moved into a strange place.

[00:29:14] Speaker 00:
Indeed, I don't think the law contemplates that at the moment.

[00:29:18] Speaker 00:
And I will mention, in effect, that the membership themselves, the JCT VC,

[00:29:24] Speaker 00:
they didn't consider themselves to be part of the public.

[00:29:27] Speaker 00:
And neither did the MPEG community.

[00:29:31] Speaker 00:
In fact, they recognized exceptions on, and this is Appendix 4629, they recognized exceptions in which a document could be treated confidentially and still distributed to the entire membership of both of those development teams.

[00:29:51] Speaker 00:
And therefore,

[00:29:54] Speaker 00:
I think that because these two bodies didn't consider themselves to be the public, there was a perfectly reasonable fact finding below that they weren't the public.

[00:30:07] Speaker 03:
But you're saying they recognize exceptions, but in those circumstances, they said that they would be designated as confidential and the access would be limited to those with password protection.

[00:30:21] Speaker 03:
But that didn't happen here, did it?

[00:30:23] Speaker 03:
There's no evidence that that occurred here.

[00:30:26] Speaker 00:
There's no evidence that there was any password on working draft 4.

[00:30:35] Speaker 00:
But the only evidence is that only this membership received the working draft.

[00:30:41] Speaker 00:
And if this membership considers itself to be outside of the public for the purposes of password control, then it's perfectly reasonable for the board to consider this

[00:30:53] Speaker 00:
these bodies to be outside of the public for the purpose of the dissemination of the drafts that they're working on.

[00:31:04] Speaker 02:
Okay, any more questions?

[00:31:07] Speaker 02:
Okay, thank you, Mr. Newman.

[00:31:08] Speaker 02:
Thank you.

[00:31:11] Speaker 02:
Sure.

[00:31:11] Speaker 02:
Gennard.

[00:31:12] Speaker 04:
Your Honor, I just want to make a couple of quick references to what was actually the evidence.

[00:31:18] Speaker 04:
On Appendix 5327,

[00:31:22] Speaker 04:
which is the Torino meeting they talk about that the document distribution was used for this website was used for all documents.

[00:31:31] Speaker 04:
And the reference he referred to at 4629, the terms of reference establishes as the presumption of public documents.

[00:31:39] Speaker 04:
As far as Mr. Bross's testimony, that is the, he said at 7947,

[00:31:48] Speaker 04:
Based on my knowledge and recollection, the JCTVC reflector includes, as its members, the participants and interested individuals.

[00:31:57] Speaker 04:
He would know that as the man who is responsible for the documents, responsible for uploading them, and responsible for sending, at least with regard to the list.

[00:32:09] Speaker 03:
What you're debating is whether or not their fact-finding was supported, right?

[00:32:13] Speaker 04:
On that particular point.

[00:32:14] Speaker 04:
But I really do want to go back to this issue

[00:32:17] Speaker 04:
of whether you can analogize these to creative research collaborators.

[00:32:22] Speaker 04:
This is all of industry getting together to hash out a standard.

[00:32:26] Speaker 04:
It's going to be contentious.

[00:32:27] Speaker 04:
These are competitors.

[00:32:28] Speaker 03:
Are you saying the minute standard setting organizations start the talk, it's public?

[00:32:33] Speaker 04:
Well, what is public is that they have the meeting was restricted to the participants who had to be qualified and invitees, right?

[00:32:44] Speaker 04:
Because it's a working group, right?

[00:32:46] Speaker 04:
But the document,

[00:32:47] Speaker 04:
was free to be disseminated.

[00:32:49] Speaker 04:
They wanted public comment because you need all of industry to eventually agree to this standard so that devices can talk to each other.

[00:32:58] Speaker 04:
And that's why you may not be actually working on any particular aspect of it.

[00:33:02] Speaker 04:
You could be monitoring it.

[00:33:03] Speaker 04:
You're an attendee because you're qualified.

[00:33:06] Speaker 03:
Why didn't you present any evidence that these attendees actually shared the document?

[00:33:13] Speaker 04:
well i don't think it's required uh... even if it's not really that seem to have been something that would have been pretty easy for you to attain even and among your own personnel well i didn't you present that i suppose that would have been only for our personnel and that subject to the disagreement that that doesn't show broader dissemination public and you never do have to show actual subsequent access so i think if if it's understood these are public documents and they were free to disseminate

[00:33:42] Speaker 04:
and they represent virtually the entirety of industry and academy, then this is in the public domain, and it would be untoward.

[00:33:50] Speaker 02:
Where do you draw, are you saying there is now no line to be drawn?

[00:33:55] Speaker 02:
Or is there a point in which people can collaborate in confidence?

[00:34:00] Speaker 04:
They can, they have to do it in confidence, and that's what they did not do here.

[00:34:04] Speaker 04:
And keep off the internet?

[00:34:05] Speaker 04:
I'm sorry?

[00:34:05] Speaker 02:
And keep off the internet.

[00:34:07] Speaker 04:
They can keep it off the internet or they can encrypt it or keep it in a private communication.

[00:34:11] Speaker 02:
Or not communicate by way of anything which could be accessed?

[00:34:15] Speaker 04:
I think that the court always has looked to whether or not there's either a confidentiality restriction, an expectation of confidentiality, or to the contrary, is there a purpose of making it public?

[00:34:32] Speaker 04:
And that's what we have here.

[00:34:33] Speaker 04:
That's what distinguishes this.

[00:34:34] Speaker 03:
You wouldn't go so far as to say that just because

[00:34:38] Speaker 03:
you know, Russia or China could hack something that that was enough, right?

[00:34:44] Speaker 04:
There has to be no expectation or restriction on confidentiality.

[00:34:49] Speaker 04:
And so in the fact that these are corporate representatives, for the most part, these meetings or representatives of research institutions.

[00:34:56] Speaker 03:
When you say restrictions on confidentiality, I communicate with my colleagues all the time and I don't tell them

[00:35:05] Speaker 03:
this is confidential, but I have no doubt that it's being kept as a confidential matter.

[00:35:11] Speaker 04:
That's the court's case, Your Honor, even though there was a... In that case, the researcher had actually contacted commercial companies, and there was no express confidentiality restriction, but there was an expectation of confidentiality.

[00:35:27] Speaker 04:
And the court said that's not a print of publication.

[00:35:29] Speaker 04:
Here, the very purpose of this enterprise is to

[00:35:34] Speaker 04:
is to have public dissemination, then I think that is necessary.

[00:35:38] Speaker 03:
Was there evidence of that fact other than attorney argument?

[00:35:43] Speaker 03:
That that was the purpose of the enterprise?

[00:35:45] Speaker 04:
Oh, yes.

[00:35:45] Speaker 04:
That's what the terms of reference say.

[00:35:49] Speaker 04:
Well, first of all, yes.

[00:35:51] Speaker 04:
There is discussion of why the JCT was formed.

[00:35:56] Speaker 04:
There's an article in that at Appendix 1903.

[00:35:59] Speaker 04:
But also the terms of reference and the IUT websites that discuss the JCT.

[00:36:05] Speaker 04:
The purpose of this was to develop a standard to replace the existing standard.

[00:36:09] Speaker 04:
And so that you have a new standard to which all the industry will comply.

[00:36:14] Speaker 04:
So there would be no reason to keep working drafts of the standard confidential.

[00:36:20] Speaker 02:
And that's why... Every idea which is expressed, which goes into the minutes and into the record, becomes published prior arch.

[00:36:28] Speaker 02:
Well, yes, because it's if it's somebody's idea, even though nothing else happens.

[00:36:33] Speaker 02:
Exactly.

[00:36:35] Speaker 04:
Because they established this as a policy that all documents would be public, including the input documents.

[00:36:41] Speaker 02:
Anything that's written down becomes a document.

[00:36:44] Speaker 02:
Well, that's interesting.

[00:36:47] Speaker 02:
That would be quite a dramatic change.

[00:36:49] Speaker 02:
Perhaps it's now required by advances in technology.

[00:36:55] Speaker 02:
The board didn't think so.

[00:36:57] Speaker 02:
so you have to figure it out.

[00:36:59] Speaker 04:
I don't think there has to be a broad rule.

[00:37:00] Speaker 04:
I think in the context of a standard-setting organization, which is designed to create the next standard, the next generation standard for video coding, I think that that is appropriate.

[00:37:11] Speaker 02:
And everyone else can preserve confidentiality except the standard-creating organization.

[00:37:17] Speaker 04:
Right, I think you can create confidentiality expectations or express restrictions, and then this wouldn't be a printed publication if you're in collaboration.

[00:37:26] Speaker 04:
And it may be that many forms of sort of, you know, groups of scientists working collaboratively on a research project, they may have an expectation of confidentiality, even if it's not expressed.

[00:37:40] Speaker 04:
But here, there's an expressed policy of publication of the documents.

[00:37:45] Speaker 04:
All the attendees received it with no restriction or expectation.

[00:37:50] Speaker 04:
They were free to distribute it throughout their organizations, throughout Samsung, LG, Apple,

[00:37:56] Speaker 04:
everybody could get these documents, or they could find it with the exercise of reasonable diligence, either to get documents from their representatives or to go onto the website that was universally open.

[00:38:11] Speaker 04:
And as a last point on the website, I would like to point out, I think the board created an error in only looking at the accessibility of the website to members outside of JCT and MPEG.

[00:38:25] Speaker 04:
Now, MPEG is different.

[00:38:27] Speaker 04:
It's the parent organizations not actually directly formulating the standard, but it will oversee the operation and eventually approve it.

[00:38:36] Speaker 04:
And those folks and the JCT folks, their meetings are co-located.

[00:38:40] Speaker 04:
They know the standardization process.

[00:38:43] Speaker 04:
Those folks would be able to find that document even under a website that is organized by meeting.

[00:38:50] Speaker 04:
So you can't exclude a huge swath of the relevant public

[00:38:56] Speaker 04:
all these representatives of institutions and companies.

[00:38:59] Speaker 04:
And I think it would be untoward if one could recapture as private property, a proposed industry standard that has been shared with the leadership of industry.

[00:39:08] Speaker 02:
You are proposing the end of the standard setting organization because people will no longer be able to speak freely to each other.

[00:39:18] Speaker 04:
No, what I'm saying is if the standard

[00:39:21] Speaker 04:
Says any of the documents that are generated by this process are public and they will be on a public website So that was what the terms of reference said so they they are free Center-setting organizations if they found it necessary could create confidentiality restrictions anything down and Don't record it.

[00:39:41] Speaker 04:
Well, there's no reason to keep confidentiality in a standard Organization because you want to have the buy-in of the whole organization idea, which is nascent and undeveloped

[00:39:51] Speaker 02:
It might take you five or more years to get into a patent application to be a reference against you.

[00:39:56] Speaker 02:
But there it sits.

[00:39:59] Speaker 02:
You're the heir of the standard-setting organization.

[00:40:01] Speaker 04:
Well, the person has a choice to submit or not to submit.

[00:40:04] Speaker 02:
If you submit it to... You end the freedom of exchange.

[00:40:09] Speaker 02:
Perhaps that's inevitable.

[00:40:12] Speaker 02:
This board, I think, was trying to not take such a giant step

[00:40:17] Speaker 02:
Well, I think we'll have to take it under consideration.

[00:40:21] Speaker 02:
Do you have any more questions, any more comments?

[00:40:23] Speaker 02:
Thank you both.

[00:40:24] Speaker 02:
The case is taken under submission.

[00:40:27] Speaker 02:
That concludes our arguments for this morning.