[00:00:00] Speaker 02:
Next is number 191442, Bytemark, Inc.

[00:00:04] Speaker 02:
versus Massabi Limited.

[00:00:10] Speaker 04:
Mr. Kehane.

[00:00:13] Speaker 04:
May it please the Court?

[00:00:15] Speaker 04:
Good morning, Your Honors.

[00:00:22] Speaker 04:
I represent Bytemark on appeal of the Patent Board decision here.

[00:00:29] Speaker 04:
In a nutshell, ByteMark's 967 patent discloses and claims an innovation in electronic ticketing technology to solve a problem of moving large masses or populations of people from in and out of various venues.

[00:00:52] Speaker 04:
The problem that the 967 patent focuses on

[00:00:56] Speaker 04:
Is this sort of the barcoding issue that has caused, in particular barcoding on LCD monitors that has... If we were to decide this case against you, we'd still have to go on and resolve the next case, right?

[00:01:18] Speaker 02:
Because this case only covers one of the two patents and only some of the claims, right?

[00:01:24] Speaker 02:
That is correct, Your Honor.

[00:01:26] Speaker 04:
And what the 967 patent discloses and claims is a way in which to improve computer technology.

[00:01:39] Speaker 04:
to do away with the barcoding technology that has been very common in the transportation industry to move people on and off trains and planes and other venues by bringing to the market.

[00:01:57] Speaker 04:
And ByteMark is one of the first to actually commercialize this technology.

[00:02:01] Speaker 04:
And after ByteMark commercialized this technology with the New York Waterway,

[00:02:06] Speaker 00:
I have a question just to make sure, as I understand it, instead of having a barcode, there's a unique image.

[00:02:16] Speaker 00:
Would the unique image be the same for everybody who's going to say a concert or a sporting event?

[00:02:22] Speaker 04:
Yes, it's my understanding.

[00:02:24] Speaker 04:
Keeping in mind that the novelty, non-obviousness in this case, the novelty of this technology is the ability to

[00:02:34] Speaker 04:
create the image and transfer that image, the visual validation image, closer to the time of the venue.

[00:02:39] Speaker 00:
So the validation occurs through the computer as opposed to right there with the person with the barcode scanner?

[00:02:45] Speaker 04:
Precisely, Judge Stolte.

[00:02:47] Speaker 04:
What happens is you're using tokens and a token is transmitted from the user's cell phone or device back to the server.

[00:02:57] Speaker 04:
It's validated at the server level.

[00:02:59] Speaker 04:
confirm that in fact this ticket is authentic and it was purchased, and then a token is upon validation, then the visual validation object.

[00:03:08] Speaker 04:
This image, that is the authenticating image, is transferred to the phone, and then maybe 45 minutes before you enter the menu, you present that ticket, that visual image to the ticket taker.

[00:03:20] Speaker 04:
And now in Terrell, that is the subject of this challenge, that's exactly what does not happen.

[00:03:29] Speaker 04:
doesn't happen?

[00:03:30] Speaker 04:
No.

[00:03:32] Speaker 04:
Terrell teaches, does not teach the visual validation object being transferred after the authentication of a token.

[00:03:43] Speaker 04:
In Terrell, very specifically, what the challenger, Masabi and the board found was that the code of the day was determined to be the token

[00:03:58] Speaker 04:
concluded was a token, and that is first transferred.

[00:04:02] Speaker 04:
I'm sorry, excuse me, I apologize.

[00:04:04] Speaker 04:
The ticket number is the token.

[00:04:06] Speaker 04:
Excuse me.

[00:04:06] Speaker 04:
The ticket number is the token.

[00:04:09] Speaker 04:
And that is transferred over to the device first.

[00:04:12] Speaker 02:
What the board found was that the visual validation object was the code of the day.

[00:04:19] Speaker 02:
That's correct.

[00:04:20] Speaker 02:
And it talks about, if you look at Appendix 600, it talks about how the bus driver or ticket inspector

[00:04:26] Speaker 02:
to validate the ticket by looking at the code of the day, right?

[00:04:32] Speaker 04:
However, throughout the specification and in every claim in Tyrell, it makes very clear that the authentication of the ticket is done with a barcode or barcode machine.

[00:04:45] Speaker 04:
And that's a key aspect.

[00:04:46] Speaker 04:
So what you have in Tyrell is... This is a comprising claim, right?

[00:04:50] Speaker 04:
I'm sorry, Your Honor.

[00:04:51] Speaker 04:
This is a comprising claim, isn't it?

[00:04:53] Speaker 04:
It is your honor.

[00:04:55] Speaker 04:
However, the the image the the visual validation object that we that we said that Terrell speaks about is transferred is transferred from the server to the to the phone Without any validation so you it can be intercepted.

[00:05:13] Speaker 04:
It can be fraudulently copied there's no security features that are specifically resided in the claim elements and

[00:05:21] Speaker 04:
In the byte market claim 967 and other claims, first you have to have a validation of a token between the remote user device and the server.

[00:05:30] Speaker 04:
And upon validation, there are very specific claim elements.

[00:05:36] Speaker 04:
There is nowhere where Terrell specifically teaches G, H, and I, for example.

[00:05:42] Speaker 04:
Element G says whether the received token is valid.

[00:05:46] Speaker 04:
H says independence.

[00:05:48] Speaker 04:
on the determination that the received token is valid, causing activation of the purchase electronic ticket.

[00:05:54] Speaker 04:
Where is that in Tyrell?

[00:05:55] Speaker 04:
There is no independence of validation of the token for the transfer of the visual validation object.

[00:06:02] Speaker 04:
The code of the day, which is the visual validation object, for example, Deli in Tyrell, is already transferred.

[00:06:10] Speaker 04:
Not independence on the determination of the token being valid.

[00:06:16] Speaker 04:
That's a very specific claim element.

[00:06:18] Speaker 04:
which impacts and informs and creates the security features that the ByteMark 967 patent speaks to and is crucial to the novelty of the 967 patent.

[00:06:34] Speaker 04:
There is no independence of the validation of the, independence on the determination that the received token is valid causing activation of the purchase electronic ticket.

[00:06:46] Speaker 04:
That is not there.

[00:06:47] Speaker 04:
By transmitting to the user's computer device a data file comprising the visual validation object.

[00:06:52] Speaker 04:
In Terrell, in contrast, this visual validation object, or what is called the visual validation object, this code of the day, is transferred first, and after it's transferred, the ticket taker uses a barcode scanner, I'm sorry, excuse me, visually looks at that image, and then uses a scanner to check the ticket number against the database.

[00:07:15] Speaker 04:
So the issue is here, and this court has been very clear in Net Money Inc.

[00:07:21] Speaker 04:
versus very signed in many other cases, and that's 545 Federal 1359, that in order for a reference to invalidate a claim under 102, each and every claim element of the claim must be present and in that specific order.

[00:07:44] Speaker 04:
And Masabe has not been able to, nor the board has been able to point to any teaching in Terrell that shows these specific steps that I went over.

[00:07:55] Speaker 04:
And so even if we accept that the code of the day is a visual validation object, even if we put aside and we argue that the code of the day, a text is not a visual validation object because according to the construction of visual validation object, it must be readily recognizable and the specification of bite mark

[00:08:14] Speaker 04:
specifically defines what can be readily recognizable.

[00:08:19] Speaker 04:
And it says specifically that appendix 649, column 3, lines 36 through 40, for example, that blocked letters cannot be a code of the day.

[00:08:29] Speaker 04:
So we dispute that that text alone can be a code of the day under the specification in the 9967 patent.

[00:08:37] Speaker 04:
But even if it was, even if we were going to accept that,

[00:08:41] Speaker 04:
we still need to have these very specific claim elements in a very specific order.

[00:08:45] Speaker 04:
And they're not just claim elements that can be put in any order.

[00:08:49] Speaker 04:
It's very important here that we recognize that these very specific claim elements, there is a dependence.

[00:08:56] Speaker 04:
One thing has to happen for us for the next thing to happen.

[00:08:59] Speaker 04:
And it is that process, the dependence of the validation of the token at the server level, then the transmission of the visual validation object.

[00:09:11] Speaker 04:
That order specifically, which is recited in the claims, claim one independent and claims 17 and 18 independent claims and independent claims that rely on that, that is the key invention here.

[00:09:23] Speaker 04:
It's improving the computer technology to go through these steps so that the image cannot just be fraudulently copied.

[00:09:32] Speaker 04:
The problem is when you just transfer the image,

[00:09:35] Speaker 04:
There's time and space to copy that.

[00:09:37] Speaker 04:
And the whole idea of, and also can be intercepted or copied upon arrival.

[00:09:42] Speaker 04:
The whole idea of the tokenization process is to first secure and confirm authenticity before I give you the goods.

[00:09:55] Speaker 04:
And that is missing in Turrell.

[00:09:59] Speaker 03:
Do you disagree?

[00:10:03] Speaker 03:
Do you think that the board did not find that in Tarot, or you think that the board was wrong to say that the code is not sent unless there is a validation of eligibility?

[00:10:20] Speaker 04:
I think the board just sort of skimmed over it and didn't address it.

[00:10:26] Speaker 04:
There's nowhere in the board's opinion, and we've read it about six times, nor in Tarrell,

[00:10:32] Speaker 04:
These specific elements, if we're going to do this, if we're going to just say, well, we can just skip the elements, it's not important.

[00:10:38] Speaker 04:
Well then, I mean, there's going to be a problem with, every claim can be found obvious in theory.

[00:10:44] Speaker 04:
But we don't have a 103 situation here.

[00:10:46] Speaker 04:
We can't fill in the blanks with some expert.

[00:10:50] Speaker 04:
This is a 102.

[00:10:53] Speaker 04:
All the elements must be there and in one embodiment.

[00:10:57] Speaker 04:
You can't go around and take it and go, I see something there and disembodied, I see something there and I'm going to kind of mix it up, mix and match.

[00:11:03] Speaker 04:
You can't do that.

[00:11:04] Speaker 04:
It's not a wow.

[00:11:05] Speaker 00:
What about the discussion on page A46 of the board's opinion?

[00:11:11] Speaker 00:
I mean, at least it's identifying this claim element.

[00:11:17] Speaker 00:
Yes.

[00:11:17] Speaker 00:
So is this the only place where this claim element is discussed?

[00:11:22] Speaker 04:
That is my understanding, or having read it, and it doesn't explain how you get around this cause and effect dependence.

[00:11:30] Speaker 03:
In other words, isn't the carryover from 46 to 47 a sentence that says, you don't, Terrell, you don't send the thing unless the requester has been determined to be eligible?

[00:11:43] Speaker 03:
Doesn't that make the point?

[00:11:45] Speaker 03:
That really was my question, whether you think it doesn't really

[00:11:49] Speaker 03:
that the board didn't say that, or that that's not enough?

[00:11:52] Speaker 03:
That's not enough.

[00:11:53] Speaker 03:
That's not enough because it's not supported by evidence?

[00:11:56] Speaker 04:
It's not supported by evidence, and it also does not explain this action of the token.

[00:12:04] Speaker 04:
I mean, it does not explain that on dependence on validating the token at the server level, did you transmit the visual validation object.

[00:12:20] Speaker 04:
Just to say, okay, we can infer that it got there somehow, this image to the thought, and it's there.

[00:12:28] Speaker 04:
And then we assume it's there, but when does it get there?

[00:12:32] Speaker 04:
How does it get there?

[00:12:34] Speaker 00:
What causes it?

[00:12:35] Speaker 00:
It says though, it says to obtain the prior data for validation, Terrell must access the verification database and determine whether the non-validated ticket is eligible for validation.

[00:12:45] Speaker 00:
And then the sentence above refers to the token as well.

[00:12:49] Speaker 00:
Why isn't that sufficient?

[00:12:51] Speaker 04:
Because it does not say that the token is validated at the server level.

[00:13:03] Speaker 04:
Because there's a separate element in the claims.

[00:13:06] Speaker 04:
I can direct your attention to the claims.

[00:13:08] Speaker 00:
It does refer to the non-validated ticket.

[00:13:10] Speaker 00:
You're saying it has to really refer to a validated and non-validated token.

[00:13:15] Speaker 04:
Yes, Your Honor, because the claim says, in G it says,

[00:13:19] Speaker 04:
determining whether a token associated with the purchase electronic ticket has been stored in a data record associated with the receipt request, and if it has, whether the received token is valid.

[00:13:28] Speaker 04:
That's the specific element within it.

[00:13:31] Speaker 00:
Instead, this says the token is sent to the buyer's device, and then the buyer, when the buyer has a ticket, and then the token is sent, but it's the ticket that's being validated, not the token.

[00:13:42] Speaker 02:
Yes, Your Honor, precisely.

[00:13:43] Speaker 02:
Thank you.

[00:13:44] Speaker 04:
You want to save the rest of your time for rebuttal?

[00:13:49] Speaker 04:
The other point I'd like to make goes back to the code of the day.

[00:13:57] Speaker 04:
The code of the day, as I said, the specification makes clear that the code of the day can't just be blocked text.

[00:14:07] Speaker 04:
an image that's readily recognizable.

[00:14:10] Speaker 04:
And even if the court is to buy or accept the board's conclusion that, for example, Delhi is the code of the day, Claim 34 very specifically says the code of the day must be animated.

[00:14:20] Speaker 04:
And there's no disclosure in Tyrell that Delhi is animated.

[00:14:26] Speaker 04:
The board relies on the animation of some other aspects in Tyrell being disclosed, separate and independent of the code of the day.

[00:14:36] Speaker 04:
And so there's no teaching of an animation of the code of the day, which claim 34 requires upon pressing the button, it should be animated.

[00:14:48] Speaker 04:
And again, you can't take

[00:14:51] Speaker 04:
You can't take the decrementing timer or some other image that's animated that is not serving the limitations of the code of the day and say, well, because something else in this thing is animated, I'm just going to apply it to the code of the day under 102.

[00:15:07] Speaker 04:
And that's also part of the security features of the claim.

[00:15:13] Speaker 04:
I'll save the rest of my time.

[00:15:14] Speaker 02:
We don't have any time left.

[00:15:17] Speaker 02:
OK.

[00:15:17] Speaker 02:
All right, we'll hear from Mr. Donahue.

[00:15:27] Speaker 01:
May it please the court, Thomas Donahue from ASAVI.

[00:15:32] Speaker 01:
The present case is not a highly complex technical case.

[00:15:37] Speaker 01:
It's a very fairly straightforward,

[00:15:40] Speaker 01:
Both 967 patent and the trial reference utilized by the board is very plain and clear language upon which the board relied on to base this decision.

[00:15:51] Speaker 01:
There was no need to fill in the blanks by any expert testimony, although there was expert testimony in support of the positions that the board held.

[00:16:01] Speaker 01:
There was very little they needed to do from our perspective.

[00:16:09] Speaker 01:
They looked at the exact disclosure of the Terrell reference and they determined during complaint construction that visual validation is simply an object that is readily recognizable by human observation to verify a ticket.

[00:16:27] Speaker 01:
They found that at least the code of the day as disclosed in Terrell was sufficient for that part.

[00:16:35] Speaker 01:
The patent owner during

[00:16:37] Speaker 01:
the proceedings attempted to argue that The code of the day required some complexity that a word couldn't possibly do it and that there was some disclaimer It's set forth in our brief.

[00:16:50] Speaker 01:
There's no substantive as evidence for that The only evidence before the court on appeal is that the code of the day is

[00:17:00] Speaker 01:
was sufficiently, there was substantial evidence that a reasonable mind could find agreed with the board's conclusions.

[00:17:13] Speaker 01:
With regard to the token and the insufficiency of the evidence, alleged insufficiency of the evidence being validated prior to sending

[00:17:28] Speaker 01:
the visual validation i.e.

[00:17:30] Speaker 01:
code of the day back to the mobile device the word laid out in fairly explicit language the clear and plain language and sections of trial that showed that in embodiment 16 where they have an independent or they have a pre-validated ticket sent to the mobile phone and that validation is pressed the mobile phone contacts a server and

[00:17:54] Speaker 01:
to validate the ticket having a unique specific ID.

[00:18:01] Speaker 01:
A reasonable person, a reasonable mind would find that sufficient to support and evidence that the unique ticket ID sent to the server, which was

[00:18:13] Speaker 01:
In fact, what they held to be a token is validated and returned, puts a package back that includes a graphical package sent back to the phone, which includes the code of the day.

[00:18:25] Speaker 01:
It is not sent before in that situation.

[00:18:27] Speaker 01:
It is sent after that validation.

[00:18:33] Speaker 01:
And finally, with regard to picking and choosing of

[00:18:38] Speaker 01:
separate embodiments.

[00:18:40] Speaker 01:
The petitioner's position is, of course, that these are not separate and distinct.

[00:18:44] Speaker 01:
There's no evidence that they were separate and distinct.

[00:18:47] Speaker 01:
And this court's own opinions have held that there's no blanket rule against picking different sections as long as a person of skill in the art would immediately envisage the combination.

[00:19:04] Speaker 01:
The fact is, when the board looked at the animation in claim 34 of the code of the day, they looked at it and said, Trell, in multiple places, defines the graphic package as textual information, graphics, and logos.

[00:19:21] Speaker 01:
And they say, in multiple locations, that the graphics package can be animated.

[00:19:28] Speaker 01:
The briefs go into

[00:19:31] Speaker 01:
language of whether or not animated applies to text or graphics.

[00:19:35] Speaker 01:
But in the end, it's immaterial because there's no error.

[00:19:40] Speaker 01:
A person with skill in the air would easily look at that and if he's in the whole disclosure of Terrell and say the code of the day, they would immediately envision that could be as part of the graphics package, could be animated as well.

[00:19:56] Speaker 01:
And finally, it's not a close case.

[00:20:00] Speaker 01:
When the board moved to summarize their invalidity positions on the claims at issue before this appeal, they said, we acknowledge the technological terms aren't identical.

[00:20:16] Speaker 01:
They don't use the same terms as the 967 patent.

[00:20:19] Speaker 01:
But they found, through reference to specific portions of Turrell, that the disclosures essentially taught identical processes.

[00:20:31] Speaker 01:
Are there any other questions?

[00:20:33] Speaker 02:
Okay.

[00:20:33] Speaker 02:
Thank you, Mr. Noggin.

[00:20:35] Speaker 02:
I thank both counsel and cases.