[00:00:00] Speaker 04:
The next case for argument is 19-1795, Apple versus Content Guard.

[00:00:07] Speaker 04:
We're ready to proceed, Counsel, when you are.

[00:00:11] Speaker 01:
Good morning, Your Honors.

[00:00:12] Speaker 01:
Jeff Cushing for Apple.

[00:00:14] Speaker 01:
The board found that Content Guard's original claims anticipated and were anticipated and obvious, and Content Guard has not appealed those determinations.

[00:00:22] Speaker 01:
In them, the board found that the Stafford patent describes a meta-right called the next set of rights, or NSOR.

[00:00:28] Speaker 01:
It also found that a skilled person would have recognized there are two plausible options as to when Stethix NSOR may be exercised in relation to a usage right, namely at the same time or at a different time.

[00:00:42] Speaker 01:
The board made that finding because it was considering whether the original claims were obvious, even assuming they required the meta-right to be exercised independently from the usage right as ContentGuard had contended.

[00:00:53] Speaker 01:
And what the board found was that they were.

[00:00:55] Speaker 01:
It found that exercising the meta-right at a different time relative to when the usage right is exercised would have been one of two obvious options when they cited the rationale of KSR.

[00:01:06] Speaker 01:
So the board's findings on the original claims compelled the board to find Content Guard's new claim 37 obvious.

[00:01:13] Speaker 01:
It's the same obvious question.

[00:01:15] Speaker 01:
So the board's failure to find that claim obvious requires reversal.

[00:01:20] Speaker 01:
Reversal is also appropriate because Content Guard

[00:01:23] Speaker 01:
cannot now contest the board's findings of fact, which compelled their obviousness conclusion.

[00:01:29] Speaker 01:
Again, they didn't appeal the board's anticipation or obviousness determinations for the original claims.

[00:01:35] Speaker 01:
I note that if you reverse on obviousness as we're requesting, it's unnecessary to reach the other patentability issues in this appeal.

[00:01:43] Speaker 01:
Now, there is another problem.

[00:01:46] Speaker 01:
The other error relates to the anticipation findings.

[00:01:49] Speaker 01:
And what the board found there was that this new claim they presented in an amendment was not anticipated by Stefik.

[00:01:56] Speaker 01:
And again, that can't be squared with what the board's uncontested factual findings are.

[00:02:02] Speaker 01:
Claim 37 amends the original claim one to add that exercising the meta-right does not result in action to content.

[00:02:10] Speaker 01:
Now the ordinary meaning of result in is that it causes the action.

[00:02:15] Speaker 01:
And that's what the board found

[00:02:17] Speaker 01:
when it found that exercising the NSOR in STEFIC happens.

[00:02:23] Speaker 01:
It found that exercising the NSOR results in the addition, modification, or deletion of usage rights.

[00:02:31] Speaker 01:
And those are actions to usage rights, not actions to content.

[00:02:35] Speaker 01:
The 280 patent, which is the patent at issue, also says that the STEFIC mechanism for exercising these rights can be used to practice its methods.

[00:02:46] Speaker 01:
says in fact the same mechanism can be used for exercising both usage rights and meta rights, and then it points directly to this same stepic patent.

[00:02:56] Speaker 01:
And then in their motion to amend, Content Guard pointed again to this stepic mechanism for exercising rights as part of their written description support for this new claim 37.

[00:03:08] Speaker 01:
So we believe all of this, that record, again, this is essentially undisputed,

[00:03:15] Speaker 01:
compels the conclusion that STEFIC also anticipates claim 37.

[00:03:21] Speaker 01:
It describes exercising a metarite mechanism that the content guard in the 280 patents say can be used to practice that method.

[00:03:30] Speaker 04:
Let me ask you about that.

[00:03:32] Speaker 04:
Regarding STEFIC, and now I'm talking about the amended claim issue, even if copying the content to a new repository happens before the usage rights attached to a file are modified,

[00:03:44] Speaker 04:
Exercising the, what do we call it, NSOR requires that there be some accompanying action to content.

[00:03:52] Speaker 04:
Isn't that right?

[00:03:53] Speaker 01:
Well, it doesn't.

[00:03:55] Speaker 01:
The way that the NSOR right is exercised, it occurs during a transaction where usage rights are also being exercised.

[00:04:05] Speaker 01:
And we note that in the red brief, content guard is acknowledged that exercising the meta right is not what causes

[00:04:14] Speaker 01:
the exercise of the usage right.

[00:04:16] Speaker 01:
This is at, I think it's at the red brief at 60 to 61.

[00:04:22] Speaker 01:
Oh, I'm sorry, at 56.

[00:04:25] Speaker 01:
And what they're noting is that it's kind of a non-issue.

[00:04:30] Speaker 01:
What the STEFIC exercise of NSOR does, it's something which happens, as it's described in STEFIC,

[00:04:39] Speaker 01:
as occurring kind of incidental or in the process of other events that are occurring.

[00:04:45] Speaker 04:
But you keep focusing on timing, right?

[00:04:50] Speaker 04:
And that's something other than the results in action to context.

[00:04:55] Speaker 01:
Well, the findings by the board were that

[00:04:58] Speaker 01:
And the only findings they made about the NSOR and what actions it affects are that it is affecting actions that relate to usage rights.

[00:05:07] Speaker 01:
So it's creating new usage rights or deleting them or modifying them.

[00:05:11] Speaker 01:
And it's relatively unsettled that the usage rights themselves, those are different rights, those are things like authorization to play the content.

[00:05:22] Speaker 01:
And if you exercise that usage right, you can then play the content or you can copy the content.

[00:05:28] Speaker 01:
What the board found was that Stepix NSOR system, NSOR when it's being exercised, is only shown as exercising effects on, or having effects on the creation or modification of usage rights, not content.

[00:05:43] Speaker 01:
And so the fact that it's essentially contemporaneous with another transaction doesn't mean that

[00:05:48] Speaker 01:
the exercise of the NSOR is resulting in actions for content.

[00:05:53] Speaker 01:
Instead, the actions on the usage rights are resulting in actions on content.

[00:06:00] Speaker 04:
Let me ask you a couple of housekeeping type questions.

[00:06:03] Speaker 04:
There are a lot of issues floating around here.

[00:06:07] Speaker 04:
Firstly, if we agree with the board that this is appropriately a CBM, we don't need to reach the issue of whether or not

[00:06:16] Speaker 04:
we have review, there is reviewability under quick to call, correct?

[00:06:23] Speaker 01:
Yes, you're right.

[00:06:24] Speaker 01:
I think, well, so the question I think you've raised is if you reach the conclusion that this was a properly found by the board to be a CBM patent, you don't need to resolve the question that's been raised by Thrive and the quick to call decision.

[00:06:40] Speaker 04:
Right.

[00:06:41] Speaker 04:
And the answer is that's correct.

[00:06:43] Speaker 04:
We do not have to reach it.

[00:06:45] Speaker 01:
I believe that's correct.

[00:06:47] Speaker 04:
Okay, let me ask you another kind of in the weeds, more housekeeping thing.

[00:06:51] Speaker 04:
And that is the board's analysis of this 252 matter.

[00:06:58] Speaker 04:
And I know you asked that even if we affirm the case that we vacate or reverse the board's suggestions under intervening rights under 252.

[00:07:08] Speaker 01:
Am I right about that?

[00:07:10] Speaker 01:
I think if you find that the claims are unpatentable, as we're requesting in reverse on that grounds, you don't need to reach the identical scope issue because it's essentially moot at that point.

[00:07:19] Speaker 01:
The claim is invalid.

[00:07:20] Speaker 01:
It's not necessary to do that.

[00:07:22] Speaker 04:
No, but if in the alternative, we were to agree with the board on the patentability of the amended claim, then you're asking that we nonetheless do or say something about 252.

[00:07:36] Speaker 04:
Am I right about that?

[00:07:38] Speaker 01:
You are correct.

[00:07:39] Speaker 01:
If you do reach the conclusion that the new claim is anticipated or not anticipated, then that actually compels you to address and reverse that finding that the claim scope is identical.

[00:07:53] Speaker 04:
Why?

[00:07:53] Speaker 04:
I mean, if our view is that what they said has no legal effect, then why would we be dealing with it at all?

[00:08:03] Speaker 04:
Are you concerned that it's going to be missed if we agree with you that it's not correct, that it will hurt you later on in another proceeding?

[00:08:12] Speaker 01:
Well, it certainly could.

[00:08:14] Speaker 01:
It could be an issue that would, in fact, a potential finding on intervening rights, because the intervening rights inquiry and future dispute would turn on whether the claims have the same scope or not.

[00:08:26] Speaker 01:
And I think that's the main reason why the board is instructed to make a determination on identical scope when they make these

[00:08:33] Speaker 01:
when they consider emotions to med.

[00:08:36] Speaker 01:
And that's part of the function of that decision is to have a clarity in the record about where the claims are relative to the original claims.

[00:08:56] Speaker 01:
So I'm happy to reserve my time, or I'm happy to take on any other questions I have regarding this.

[00:09:02] Speaker 01:
If you'd like to get into the details of the identical scope issue, I'm happy to do that as well.

[00:09:10] Speaker 00:
Judge Rayner, Judge Hughes, do you have any further questions?

[00:09:14] Speaker 00:
No, I did have a question, Judge Prost, but you asked it for me, so I appreciate it.

[00:09:21] Speaker 04:
I don't have any questions.

[00:09:23] Speaker 04:
All right, so why don't you reserve the remainder of your time because we've got cross appeals here and so forth.

[00:09:29] Speaker 04:
And let's hear from the other side.

[00:09:31] Speaker 04:
Thank you.

[00:09:32] Speaker 04:
Thank you.

[00:09:34] Speaker 04:
Mr. Malone.

[00:09:37] Speaker 02:
Yes, good morning, Your Honor.

[00:09:38] Speaker 02:
It may have pleased the Court.

[00:09:39] Speaker 02:
I'd like to start with the jurisdictional issue of whether this is a CBM patent.

[00:09:44] Speaker 02:
The 280 patent is not a CBM patent.

[00:09:47] Speaker 02:
The challenge claims describe the method for creating and transferring

[00:09:51] Speaker 02:
a new right through the exercise of a meta-right, the board asserted that it cannot be the case that the 280 patents may avoid being a CBM patent simply because it recites broad claims and discloses some embodiments that are non-financial.

[00:10:09] Speaker 02:
But that assertion revealed that the board not only applied the wrong test, but it fundamentally mischaracterized the claims.

[00:10:16] Speaker 04:
And what's our standard of review on whether or not the board erred in the CBM conclusion?

[00:10:25] Speaker 02:
Well, Your Honor, we believe that the board has used the wrong definition of the CBM once again.

[00:10:31] Speaker 02:
That issue, we believe, is an issue of law that is subject to de novo review.

[00:10:36] Speaker 02:
If the court concludes that the board did apply the correct definition, then we would alternatively assert that the board still should be reversed

[00:10:46] Speaker 02:
under a standard that its application of the definition to these claims is arbitrary and not supported by substantial evidence.

[00:10:57] Speaker 02:
And the reason is, Your Honor, because under the proper definition, we must focus on what the claims are directed to.

[00:11:04] Speaker 02:
And there's not a single claim in the 280 patent that is directed to a system or method for using the invention in a financial product or service.

[00:11:14] Speaker 02:
the claims cover a limitless number of non-financial embodiments.

[00:11:20] Speaker 02:
And that's because no claim requires any financial staff or component.

[00:11:25] Speaker 00:
The only description of... This is Judge Drenna.

[00:11:28] Speaker 00:
I find a strength in your arguments, both in your brief and what you're making today.

[00:11:35] Speaker 00:
But I'm bothered as to the impact the click to call Supreme Court's decision has on those arguments, because at the end of the day, we're looking at

[00:11:45] Speaker 00:
the director's decision to institute.

[00:11:48] Speaker 00:
And it appears to me that our authority, this court's authority, over matters that pertain directly to the director's decision to institute are final and non-appealable.

[00:12:02] Speaker 00:
Can you quickly address this particular issue?

[00:12:06] Speaker 02:
Sure, Your Honor.

[00:12:08] Speaker 02:
As we indicated in our response to their citation, we believe that the Fersada decision

[00:12:13] Speaker 02:
applies this court's Versada decision and that holding in Versada that CBM eligibility is a reviewable issue is not implicated by Tribe.

[00:12:21] Speaker 02:
And the reason is, as Versada pointed out, the question of whether a patent is a CBM patent doesn't just go to the institution decision.

[00:12:29] Speaker 02:
It goes ultimately to the board's ultimate authority over the entire proceeding because the statute limits the board's jurisdiction on CBM proceedings.

[00:12:39] Speaker 03:
Can I just interrupt?

[00:12:42] Speaker 03:
Sorry, this is such use.

[00:12:44] Speaker 03:
I get that and, you know, that's what Versada decided, but isn't that the argument that Click to Call directly rejected there when it said even if the Director's Institution Authority was exercised outside the one-year statutory period, it was still nonreviewable.

[00:13:03] Speaker 03:
I mean, that reasoning

[00:13:05] Speaker 03:
It seems to me undermined your argument here about Versada and renders Versada just incorrect.

[00:13:11] Speaker 03:
And the fact that it was ultimately made and the CBM determination was ultimately made in the final decision as well was again rejected by Click2Call when it said even if it appears in the final decision, if it's an institution issue, it's not reviewable.

[00:13:28] Speaker 03:
I mean, how do you respond to those different places in Click2Call where

[00:13:32] Speaker 03:
It seems to reject the reasoning you're making relying on Versada.

[00:13:38] Speaker 02:
My response, Your Honor, is that it's not just a matter of the board having initially made a determination in the institution decision.

[00:13:46] Speaker 02:
In fact, we're here on a remand decision that differs substantially from the reasoning that was set forth in the institution decision.

[00:13:54] Speaker 02:
And that's because the issue ultimately depends on what a patent claims.

[00:13:59] Speaker 02:
And what a patent claims

[00:14:00] Speaker 02:
can evolve that the issue, that issue can evolve during the proceedings based on client construction most particularly.

[00:14:08] Speaker 02:
And so it's not until the final written decision, in this case, the amended remand decision, that we have a final determination by the board of what the claims cover and whether the claims are correct.

[00:14:19] Speaker 03:
I'm sorry, can I just interrupt you again?

[00:14:21] Speaker 03:
I don't understand that argument at all.

[00:14:23] Speaker 03:
The same thing about evolving client construction and the like can happen in a general run of the mill

[00:14:29] Speaker 03:
IPR case where it gets instituted based upon certain claim constructions or not, and then they may change during the proceedings.

[00:14:38] Speaker 03:
I mean, if the board decides to institute based on a claim construction that changes, you don't get a go back and say they shouldn't have instituted because that claim construction was wrong.

[00:14:49] Speaker 03:
You just get a challenge to claim construction and how it relates to patentability, not to the institution decision itself.

[00:14:56] Speaker 03:
Why isn't that same argument here?

[00:14:58] Speaker 03:
you make it a challenge the claim constructions of whether these are about financial things or not, but that goes to the ultimate patentability questions, not the initial CBM determination.

[00:15:12] Speaker 02:
Well, in the alternative, Your Honor, related to that point, I would say the decision of whether it's the CBM patent, which is based on the claims, doesn't just go to the ultimate patentability question.

[00:15:25] Speaker 02:
It goes to the board's

[00:15:26] Speaker 02:
ultimate jurisdiction over the entire proceeding.

[00:15:32] Speaker 04:
So does timeliness.

[00:15:36] Speaker 04:
If the petition was untimely, then that goes the authority of the board to have instituted in the first instance.

[00:15:44] Speaker 04:
How are the two different?

[00:15:46] Speaker 02:
Well, one way it's different, Your Honor, is explained in Thrive, is that

[00:15:53] Speaker 02:
The issue of, I'm sorry, I believe it was explained in Versata, the issue of timeliness only affects whether the petitioner was a proper petitioner.

[00:16:03] Speaker 02:
It doesn't go to the board's ultimate authority over the patent, and another petitioner that timely files a petition may still challenge the patent.

[00:16:12] Speaker 00:
I'm not sure that's what we said in Wi-Fi 1.

[00:16:17] Speaker 00:
I think in Wi-Fi 1, this court looked at

[00:16:20] Speaker 00:
the decision to institute in that situation and the timeliness situation, the time bar situation, to be one of the authority to even entertain the case.

[00:16:36] Speaker 00:
And I think the Supreme Court rejected that as well.

[00:16:41] Speaker 00:
Would you agree?

[00:16:43] Speaker 02:
Well, with the Supreme Court

[00:16:45] Speaker 02:
What I would agree, Your Honor, is that the Supreme Court in Tribe focused on the time bar rule and it noted that the time bar rule expressly governs institution and nothing more.

[00:16:58] Speaker 02:
It is a statute closely related to the institution decision and nothing more.

[00:17:02] Speaker 02:
Tribe also emphasized that a party dissatisfied with the final written decision may still appeal under Section 319.

[00:17:12] Speaker 02:
And it drew a distinction between decisions to institute and decisions that relate to the scope of the proceedings or other aspects of the proceedings that occur after institution.

[00:17:23] Speaker 02:
And our point is that in this case, the issue of whether the patent is a CBM patent goes beyond the mere institution decision to the board's ultimate authority and its ultimate jurisdiction over the proceeding.

[00:17:37] Speaker 03:
Sorry, this is Judge Hughes again.

[00:17:40] Speaker 03:
I still fail to understand how the... I mean, you're arguing this authority argument.

[00:17:47] Speaker 03:
Let's just assume I disagree with you, and I think the Supreme Court's rejected that distinction between authority and timeliness.

[00:17:54] Speaker 03:
I think that's wrong.

[00:17:56] Speaker 03:
How does the determination of whether a CBM, a patent is a CBM or not, go to the final merits of the patentability argument?

[00:18:06] Speaker 03:
Isn't the statute that talks about this CBM determination, doesn't it actually use the word institute in setting the standard of whether the board can institute on a CBM or not?

[00:18:19] Speaker 02:
Yes, I believe it does, Your Honor.

[00:18:21] Speaker 02:
And the difference, again, I believe, is that in his disposal, which Thrive applies, pointed out that

[00:18:31] Speaker 02:
Appeals from a final written decision under Section 319 are still available for circumstances where the board has exceeded its statutory jurisdiction.

[00:18:43] Speaker 03:
And our position is that the definition... I mean, you're not being responsive to my question and my hypothetical, which is I asked you to assume that I disagree with that authority point, because I think click to call makes very clear that that's not the correct reading of CLOSO.

[00:19:01] Speaker 03:
So is there anything about the CBM determination apart from the board's authority to institute that is necessary for the final written decision on the merits of the patentability claim?

[00:19:17] Speaker 02:
Well, no, I guess to the extent I understand your question, the merits of the patentability claim depend on obviousness and anticipation and other

[00:19:31] Speaker 02:
other issues that go beyond the issue of whether the claims recite a financial subject matter.

[00:19:36] Speaker 02:
So I don't see those two issues as being completely aligned.

[00:19:42] Speaker 02:
Did I answer your question, Your Honor?

[00:19:45] Speaker 04:
Yes, thanks.

[00:19:47] Speaker 04:
Well, before your time runs out, we've spent all of your time largely because we've asked questions about the cross-appeal.

[00:19:53] Speaker 04:
Do you want to respond to Mr. Cushion's main arguments with respect to the patentability of the substitute claim?

[00:20:00] Speaker 02:
Sure, thank you for that opportunity, Your Honor.

[00:20:03] Speaker 02:
On the anticipation question, the arguments they're making are really discredited by their own assertions in the petition and by their own experts.

[00:20:14] Speaker 02:
The question is not whether the reading of the NSOR parameter itself causes action to content.

[00:20:22] Speaker 02:
The amended claim requires the ability to exercise the metal right to create new rights without any action to content occurring.

[00:20:30] Speaker 02:
and their own expert and in their own petition, they analyzed STEFIC and affirmatively asserted that the relevant exercising in STEFIC is the exercise of the usage right and the entire process involved with exercising the usage right.

[00:20:50] Speaker 02:
And as their expert states, the meta-right is exercised in STEFIC by transmitting a copy of the work

[00:20:58] Speaker 02:
to the requesting repository.

[00:21:00] Speaker 02:
And that was the fundamental premise of their attack of the original Claim 1, which has now been amended in Claim 37 to clearly distinguish over that sort of an approach.

[00:21:11] Speaker 02:
As to obviousness, it's a very similar issue.

[00:21:16] Speaker 02:
They focused on timing.

[00:21:18] Speaker 02:
Your Honor asked a question about that.

[00:21:20] Speaker 02:
The question is not whether the NSOR parameter is exercised or processed at the same time or at different time as the content is transferred.

[00:21:28] Speaker 02:
The question is whether it can be exercised at all without resulting action to content.

[00:21:34] Speaker 02:
The only argument that was really put forth on obviousness was their assertion that the embed transaction disclosed in Suffolk could create new rights without transferring content.

[00:21:46] Speaker 02:
And the board correctly found that that was just an incorrect reading of the embed transaction, which is clearly disclosed in Suffolk

[00:21:55] Speaker 02:
as a process that requires transferring the content from one review as their own.

[00:22:01] Speaker 00:
I have a question, Judge Crouse, if I may ask it.

[00:22:06] Speaker 00:
Yes, please.

[00:22:08] Speaker 00:
I wanted to ask counsel if he agrees that the patent owner, the reason that the negative limitation was added, it was with the purpose of overcoming the step-up rejection.

[00:22:20] Speaker 00:
Do you agree with that?

[00:22:22] Speaker 02:
I do agree with that, Your Honor.

[00:22:26] Speaker 02:
Okay.

[00:22:28] Speaker 04:
Before I know your time has run out, but let me ask you one other housekeeper, one other question about section 252 and what the board did.

[00:22:37] Speaker 04:
Uh, the board in your view has the, is it your view that the board has the authority to tell this report, uh, what their, what their conclusion necessarily must be with regard to intervening.

[00:22:52] Speaker 04:
Right.

[00:22:53] Speaker 04:
And is that what happened here?

[00:22:57] Speaker 02:
Your Honor, I wouldn't go so far as to say that what the board determined is binding on a district court.

[00:23:02] Speaker 02:
I don't think we know the answer to that question yet.

[00:23:05] Speaker 02:
What the board did here is in compliance with its own rules that, in its practice, state that parties may request such a binding.

[00:23:13] Speaker 02:
And if the board believes it's appropriate, the board will make such a binding.

[00:23:16] Speaker 02:
And that's all we did.

[00:23:18] Speaker 02:
And the board followed its own rules and was clearly correct in its conclusion.

[00:23:25] Speaker 02:
I think that's the only issue that the court has to address in this particular appeal.

[00:23:32] Speaker 02:
Okay.

[00:23:34] Speaker 04:
All right.

[00:23:34] Speaker 04:
We'll keep a couple minutes for rebuttal if it's necessary on your cross appeal.

[00:23:40] Speaker 04:
And let's hear from Mr. Cushin.

[00:23:43] Speaker 04:
Thank you.

[00:23:43] Speaker 04:
Thank you.

[00:23:46] Speaker 01:
Thank you, Your Honors.

[00:23:47] Speaker 01:
On the CBM issue, I think the first thing that you

[00:23:53] Speaker 01:
as Judge Hsu had articulated, the institution decision, we believe under clicker call, is no longer a reviewable issue.

[00:24:01] Speaker 01:
There's no appellate jurisdiction for reviewing that question.

[00:24:04] Speaker 01:
What's notable about the CBM question is that this 280 patent, a CBM patent, the act, the AIA, Section 181AE, says that

[00:24:18] Speaker 01:
the director may institute a transitional proceeding only for a patent that is a covered business method patent.

[00:24:24] Speaker 01:
So the act actually makes this explicitly part of the institution decision.

[00:24:28] Speaker 01:
So that question I think squarely is answered by Click to Call and says that that is part of the institution decision, whether this patent is a CBM patent or not.

[00:24:37] Speaker 01:
And that is no longer reviewable under the logic that's articulated in Click to Call.

[00:24:43] Speaker 04:
When does the CBM

[00:24:45] Speaker 04:
statutory provision expire, we're at the end of the road with the get to CVM, correct?

[00:24:50] Speaker 01:
Yes, and we're, I think it is imminent September.

[00:24:56] Speaker 01:
Okay.

[00:24:58] Speaker 01:
The other issue I'd like to mention about what Council had said about the merits of the CVM issue is that

[00:25:05] Speaker 01:
They didn't really contest that the board was following this court's law in their opening brief and what they were really focusing on there is essentially disputing that the board applied that law wrong and most specifically they were challenging a number of factual findings the board made.

[00:25:23] Speaker 01:
And we believe that the factual findings that the board made on CBM eligibility are not to be disturbed that they're supported by substantial evidence and we believe your authority holds that.

[00:25:34] Speaker 01:
And they only raise kind of their new issue about the interpretation or the standards the board was using in their reply brief.

[00:25:41] Speaker 01:
So you should probably discount it for that reason.

[00:25:44] Speaker 01:
Now, on the issue that he just raised regarding anticipation, I think you just have to look at the claim language.

[00:25:51] Speaker 01:
The claim language does not read exercise of meta-right without any action to content occurring.

[00:25:57] Speaker 01:
That's their gloss on what they think that word means.

[00:25:59] Speaker 01:
What the claim language says is that

[00:26:03] Speaker 01:
the exercise, and this is what, I'll just read it, the language is added to claim 37, and wherein the meta-right is not itself a usage right, because exercising the meta-right does not result in action to content.

[00:26:17] Speaker 01:
And that's what the board has held.

[00:26:20] Speaker 01:
I mean, when they read STEFIC and were understanding what it was describing, they found that when you exercise the NSOR,

[00:26:28] Speaker 01:
it changes usage rights.

[00:26:29] Speaker 01:
It doesn't cause copying or other things like that.

[00:26:32] Speaker 01:
Those are usage rights, and so the actions of exercising the NSOR are affecting the usage rights.

[00:26:42] Speaker 01:
And I think that question of anticipation ultimately doesn't, even if you were not to agree, that's where you should come out on anticipation of new claim 37,

[00:26:55] Speaker 01:
We raised in our petition, we raised during the briefing that this claim would have been obvious even if you had to independently exercise the meta right relative to the usage right.

[00:27:05] Speaker 01:
And we've addressed this in our brief.

[00:27:08] Speaker 01:
In fact, the board recognized that's what our argument was.

[00:27:11] Speaker 01:
If you look at appendix 55, 56, you see them.

[00:27:16] Speaker 01:
recounting our explanation of why the claims were obvious, and we gave them this explanation, there's just two options for how you exercise the meta-right relative to the usage right.

[00:27:26] Speaker 01:
That's what they relied on, and they found it persuasive in finding the original claims obvious.

[00:27:33] Speaker 01:
So, I'm available to answer any other questions, but I can rest at that point.

[00:27:39] Speaker 04:
Can you just talk to me for a minute?

[00:27:41] Speaker 04:
I know I'm hung up, obviously, probably the only person

[00:27:45] Speaker 04:
on this 252 question and what your friend said that the board's rules or their guidance or whatever it is compels that they make this determination and therefore it might have some heft with regard to what the district court has to say with regard to intervening rights at some later time.

[00:28:07] Speaker 01:
So the problem with what the board did was they construed meta-right

[00:28:12] Speaker 01:
when they took up the original claims, and their finding was that the specification explicitly defined metarite.

[00:28:20] Speaker 01:
And it was not the definition that was used in the district court in Texas.

[00:28:25] Speaker 01:
They made their own finding about what that term meant.

[00:28:29] Speaker 01:
And then, when they came to this exercise of comparing the new claim to the old claim, they simply adopted, without any findings,

[00:28:39] Speaker 01:
the language used by the district court in Texas.

[00:28:41] Speaker 01:
And the problem with that is that once they had found on their own that the claim term metarite had been explicitly defined in the specification, that ended the matter.

[00:28:51] Speaker 01:
And in fact, whether you're working under the broadest reasonable interpretation or if you're working under the district court standard, you get the same construction if the specification is explicitly defined a term.

[00:29:04] Speaker 01:
And that's really the root of the problem is that they, instead of finding something

[00:29:08] Speaker 01:
in the record and based on evidence that would compel them to narrow the meaning of meta-right the way that Content Guard was arguing, they had to go with what they already found, which was the explicit definition of specification.

[00:29:21] Speaker 01:
And that's the root of the problem.

[00:29:23] Speaker 01:
That's why it was hard for us to process the conclusion they reached, which was given that explicit definition of meta-right and that the claims had been found anticipated, the same claim which

[00:29:38] Speaker 01:
wasn't changed by that construction with no basis for changing that construction was found not anticipated.

[00:29:43] Speaker 01:
And that's really the problem.

[00:29:47] Speaker 04:
Okay.

[00:29:47] Speaker 04:
Thank you very much.

[00:29:49] Speaker 04:
Let's hear from the other side.

[00:29:52] Speaker 04:
Probably has a couple minutes, and it would be exclusively on the cross-appeal matters, if I'm correct.

[00:30:00] Speaker 02:
Yes.

[00:30:00] Speaker 02:
Thank you, Your Honor.

[00:30:03] Speaker 02:
Just getting back to this issue of reviewability, if I might.

[00:30:07] Speaker 02:
Again, the distinction that I see between the Coelzo and the Thrive case and the situation before the court in this appeal is that the Supreme Court cases dealt with statutes that go to the adequacy of the petition.

[00:30:24] Speaker 02:
In Coelzo, it was whether the petition was sufficiently particular.

[00:30:28] Speaker 02:
And of course, in Thrive, it was the time bar provision.

[00:30:31] Speaker 02:
And in those situations, the question

[00:30:37] Speaker 02:
is in some way enlightened by the fact that a proper pleading, a proper petition could have given the board authority over the proceeding.

[00:30:45] Speaker 02:
In other words, a more particular petition or a petition that wasn't time barred would have allowed the board to challenge that particular patent or to review the challenge to that patent.

[00:30:55] Speaker 02:
But in the CBM eligibility question, a proper petition could not cure the board's jurisdiction over the CBM patent if, in fact,

[00:31:07] Speaker 02:
the patent does not qualify as a CBM patent under this statutory definition.

[00:31:11] Speaker 02:
And I believe that is a very important distinction because it goes to the board's ultimate authority to entertain the proceeding at all, regardless of whether the petition argued it correctly or not, or whether the issues evolved during the proceeding, it still gets back to the fundamental issue of whether it's a CBM patent.

[00:31:30] Speaker 02:
And if it isn't a CBM patent, then the board has no authority to invalidate the claims in a final written decision

[00:31:37] Speaker 02:
And so that is a distinction that I would point out as to why this issue is reviewable by the board.

[00:31:46] Speaker 02:
With regard to the other issues in terms of the board's analysis, we just reiterate, and it's pretty clearly set forth in our brief, that the board basically focused on the specification and did not find a single claim limitation

[00:32:02] Speaker 02:
or a single claim construction?

[00:32:06] Speaker 04:
Well, your time is up, but I also think you're trending on issues that were not necessarily across the field.

[00:32:12] Speaker 04:
In any event, we thank both parties.

[00:32:15] Speaker 04:
We appreciate that this is not normal proceedings, and we appreciate your indulgence in that regard.

[00:32:22] Speaker 04:
And the case is submitted.

[00:32:24] Speaker 04:
Thank you.