[00:00:31] Speaker 00:
Our last case this morning is Redescent Networks versus RPX Corporation and Erickson, 2019, 1386, 87, and 89.

[00:00:45] Speaker 00:
Mr. Hullahan.

[00:00:53] Speaker 03:
Thank you, Judge Laurie.

[00:00:54] Speaker 03:
May I please the court?

[00:00:56] Speaker 03:
Your Honor, the board's decision below rests on three fundamental legal errors.

[00:01:00] Speaker 03:
In the first instance, the board completely erased the requirements for finding that it documents a printed publication under Section 102A.

[00:01:09] Speaker 03:
The board read the word dynamically out of the claims of the iridescent patents, and the board allowed the petitioners below to completely rewrite a prior art reference in order to find limitations in the reference that simply did not exist.

[00:01:26] Speaker 04:
Can I just make a question of clarification?

[00:01:28] Speaker 04:
Your second two points are exclusively related to Golden, right?

[00:01:33] Speaker 04:
Yes, Your Honor.

[00:01:33] Speaker 04:
Okay, so if we do not agree with you on the cube bone publication, that ends the case and we don't reach those points, correct?

[00:01:43] Speaker 03:
I believe so, Your Honor.

[00:01:44] Speaker 03:
The cube bone reference was asserted against both of the iridescent patterns.

[00:01:47] Speaker 03:
Golden was only asserted against 119.

[00:01:50] Speaker 03:
So I'd like to address QBone at the outset.

[00:01:54] Speaker 03:
All we know about QBone is that one person found it, Mr. Foti.

[00:01:59] Speaker 03:
The story that Mr. Foti told in his very thin declaration falls far short of meeting this court's requirements for demonstrating that a document is a printed publication.

[00:02:10] Speaker 03:
There's no explanation for why Mr. Foti was looking at the IETF materials in the first place.

[00:02:15] Speaker 03:
There's no explanation as to how he found RFC 2768.

[00:02:18] Speaker 03:
If you look at his declaration, he says that if you search for Q-Bone, you'll find RFC 2768.

[00:02:28] Speaker 03:
But the story is that he found Q-Bone by looking in RFC 2768.

[00:02:34] Speaker 03:
It's completely circular.

[00:02:36] Speaker 03:
And we have no idea where this Q-Bone reference came from.

[00:02:39] Speaker 03:
And we have no basis to conclude, as the board did, that anybody but Mr. Foti ever looked at it or would have had interest in it as a member of the interest of public and the relevant technology.

[00:02:49] Speaker 00:
But there's nothing wrong with Mr. Foti.

[00:02:52] Speaker 00:
I mean, it's a question of evidence and credibility.

[00:02:55] Speaker 00:
The word one in patent law has significance.

[00:02:59] Speaker 00:
One public use can negate validity.

[00:03:06] Speaker 00:
One publication.

[00:03:08] Speaker 00:
And so Mr. Foti, if he found it and his evidence was believable, why isn't that sufficient?

[00:03:16] Speaker 03:
Your Honor, if you look at the case law decided by this court on this issue, there is always a critical mass of the interest of public.

[00:03:25] Speaker 03:
that the record evidence shows either had actual access or would have found it through the exercise of reasonable diligence.

[00:03:33] Speaker 03:
It also goes to the corroboration requirement.

[00:03:36] Speaker 03:
This court holds consistently that if you want to invalidate a patent based on one person's testimony, you need corroboration, either from other individuals or from documents.

[00:03:46] Speaker 00:
And that is not good.

[00:03:47] Speaker 00:
This is more than just testimony.

[00:03:48] Speaker 00:
This is a document.

[00:03:50] Speaker 03:
corroborating testimony that a document is a printed publication with the document itself completely erases the requirement to demonstrate, to satisfy this court's rules as to what a printed publication is.

[00:04:05] Speaker 03:
There's no dispute that he found it.

[00:04:07] Speaker 03:
But in every case where there is a disputed, alleged printed publication, somebody found it.

[00:04:15] Speaker 03:
So the mere fact that Mr. Foddy found it is simply not enough.

[00:04:18] Speaker 03:
There needs to be more in the record.

[00:04:19] Speaker 04:
It could be idiosyncratic on his part.

[00:04:21] Speaker 04:
Maybe nobody in the industry looks at IEFT.

[00:04:24] Speaker 04:
Did I say that right?

[00:04:25] Speaker 03:
IETF.

[00:04:25] Speaker 03:
IETF.

[00:04:26] Speaker 04:
I didn't think I said it right.

[00:04:28] Speaker 04:
Maybe nobody in the industry looks at IETF.

[00:04:29] Speaker 04:
Maybe nobody in the industry looks at internet, too.

[00:04:31] Speaker 04:
Maybe they are completely unrelated, obscure,

[00:04:34] Speaker 04:
individual personal websites, but maybe Mr. Foddy had some personal knowledge that a skilled artist wouldn't.

[00:04:41] Speaker 04:
Is that kind of your idea?

[00:04:42] Speaker 04:
Is that what is motivating your argument that Foddy alone isn't enough?

[00:04:47] Speaker 03:
Yes, Your Honor.

[00:04:48] Speaker 03:
If you look at the Blue Calypso case, that's exactly what this court decided.

[00:04:51] Speaker 03:
In Blue Calypso, there was a document that was posted on a grad student's individual web page.

[00:04:57] Speaker 03:
It was on the World Wide Web.

[00:04:58] Speaker 03:
It was technically publicly accessible to anybody who tried hard enough to find it.

[00:05:02] Speaker 03:
But this court held that

[00:05:04] Speaker 03:
Because there was no evidence of actual access by the interested public, and there was no coherent story as to how a member of the interested public would have stumbled upon this grad student's personal web page by this article, that did not satisfy the strictures of 102A.

[00:05:18] Speaker 00:
Well, perhaps we agree with you.

[00:05:21] Speaker 00:
So tell us about Golden.

[00:05:23] Speaker 01:
Can I ask one question first?

[00:05:25] Speaker 01:
It's OK.

[00:05:27] Speaker 01:
What about the other evidence that's being relied on here, like the internet active snapshot

[00:05:32] Speaker 01:
or the copy of RFC 2768, which references the Cubone project.

[00:05:40] Speaker 01:
What about, you say you need to have some corroborating evidence, but there is some material here, at least that has been submitted.

[00:05:47] Speaker 01:
Whether you think it's corroborating or not, the board didn't just rely on Mr. Foti's testimony and nothing else.

[00:05:55] Speaker 03:
Respectfully, Judge Soll, I think that the corroboration, so there are two issues.

[00:05:59] Speaker 03:
There's the corroboration of what Mr. Foti said.

[00:06:03] Speaker 03:
The documents that Mr. Foddy attached to his declaration corroborate that he himself found the documents.

[00:06:08] Speaker 03:
There's really nothing else you can infer.

[00:06:11] Speaker 01:
So isn't your point that the problem is that there is no testimony that a person of ordinary skill in the art would have done what Mr. Foddy did?

[00:06:17] Speaker 03:
Exactly.

[00:06:18] Speaker 03:
And that is required consistently under this court's precedence.

[00:06:23] Speaker 03:
The language that this court has used is that there must be a road map from point A to point

[00:06:28] Speaker 01:
What if there is evidence that a person of ordinary scale in the art would have known of Internet2?

[00:06:33] Speaker 01:
Or that there's evidence that one person of ordinary scale in the art would have known of the IETF website?

[00:06:40] Speaker 01:
Would that go further than what we have here?

[00:06:44] Speaker 03:
No, Your Honor, that's not good enough, because you need a roadmap to find the QBone reference.

[00:06:49] Speaker 03:
And this is not an indexing case.

[00:06:51] Speaker 03:
The board did not rely on QBone being indexed or clearly searchable within internet 2.

[00:06:58] Speaker 01:
Isn't there a patent application that had been published two years before the priority date which referenced QBone?

[00:07:06] Speaker 03:
Yes, Your Honor, by Mr. Foti himself.

[00:07:07] Speaker 03:
So he's not exactly a disinterested party.

[00:07:09] Speaker 04:
No, but why doesn't that application on its face?

[00:07:12] Speaker 04:
Provide for supply what photos testimony maybe does not.

[00:07:17] Speaker 04:
Well, the board pet applications that discuss particular publications like this cubone publication.

[00:07:23] Speaker 04:
Why isn't that sufficient to find cubone publication publicly accessible.

[00:07:28] Speaker 03:
The patent application referenced the cube bone work.

[00:07:31] Speaker 03:
It did not point directly to the cube bone reference.

[00:07:34] Speaker 03:
And the board correctly held, distinguishing the Bruckemeier case, that the mention of cube bone in a patent application

[00:07:44] Speaker 03:
did not amount to QBone becoming a printed publication because there's no evidence in the record still to this day, as far as I know, that the QBone document itself was ever publicly available in the PTO files.

[00:07:57] Speaker 01:
Why can't it be corroborating evidence, though?

[00:08:00] Speaker 01:
I mean, the corroborating evidence doesn't have to perfectly align with the primary evidence, right?

[00:08:07] Speaker 01:
I mean, there's some rule of reason.

[00:08:08] Speaker 01:
that applies when you're looking at corroboration, right?

[00:08:11] Speaker 03:
Certainly, Your Honor.

[00:08:13] Speaker 03:
Again, it's corroboration that Mr. Foddy knew about Q-Bone and his co-inventors on the Sardilla patent knew about Q-Bone.

[00:08:19] Speaker 03:
That's not enough to show that the interest of the public would have been led to Q-Bone through the reasonable exercise of diligence.

[00:08:25] Speaker 01:
Where this is, this is a factual question review for substantial evidence, right?

[00:08:30] Speaker 01:
The public accessibility issue.

[00:08:32] Speaker 03:
Whether a document is a printed publication is a question of law based on underlying facts.

[00:08:37] Speaker 01:
But I'm asking if the public accessibility is an underlying fact or not.

[00:08:43] Speaker 03:
I believe so, Your Honor.

[00:08:44] Speaker 03:
It's covered in the brief, so I apologize.

[00:08:45] Speaker 03:
I don't have that on top of my head.

[00:08:47] Speaker 03:
But I think there are numerous cases from this court, the Blue Philipsa case, the voter-verified case, and probably the MIT case being the most salient, that lay out the facts that are available to a lower tribunal or district court or the PTAB in making this assessment.

[00:09:04] Speaker 03:
And in every case,

[00:09:05] Speaker 03:
There was a critical mass of the interest of public either who had actual access or had reason following some road map, again, in the factual record that would point them to the disputed reference.

[00:09:18] Speaker 01:
Your view is that the road map provided by Mr. Foddy isn't good enough because he's not speaking to a person of early use in the yard.

[00:09:28] Speaker 01:
He's only speaking as to himself.

[00:09:30] Speaker 01:
that right he's he's only speaking to his own personal experiences he may be a person says in paragraph four he says he talks about persons of ordinary scale near it has a parenthetical that says including my

[00:09:44] Speaker 01:
He defines himself as a posa.

[00:09:46] Speaker 03:
I don't deny that Mr. Foley himself is a person of ordinary skill in the art, but we're not talking about one person.

[00:09:53] Speaker 03:
We're talking about the interest of the public.

[00:09:56] Speaker 03:
And individual members of the interest of the public can stumble upon things idiosyncratically, as Judge Moore said, and that would not, as in the Blue Calypso case,

[00:10:06] Speaker 03:
that would not satisfy 102A.

[00:10:08] Speaker 04:
But he actually says, one technology that was well-known and publicly discussed by persons of ordinary skill in the art, including me in this time frame, was the cue bone bandwidth broker architecture.

[00:10:20] Speaker 04:
So if he's saying the cue bone architecture was well-known and discussed by people of skill in the art,

[00:10:29] Speaker 04:
And then you can search and find this Q-Bone printed publication.

[00:10:34] Speaker 04:
Why isn't that enough?

[00:10:36] Speaker 03:
There's no corroboration for a statement that Q-Bone was well known and discussed among the general public or the interested public.

[00:10:42] Speaker 03:
There's no corroboration whatsoever for that sentence.

[00:10:44] Speaker 01:
What about the printed publication, which again is his own printed publication?

[00:10:49] Speaker 01:
I guess printed application, but it's printed.

[00:10:51] Speaker 01:
And it mentions Q-Bone, not the article.

[00:10:54] Speaker 01:
But it mentions Cubone, so in the work.

[00:10:57] Speaker 03:
That shows that he and his co-inventors on that patent know about Cubone.

[00:11:01] Speaker 04:
No.

[00:11:01] Speaker 04:
But it was published two years before the critical date.

[00:11:03] Speaker 04:
So why doesn't it show that anyone interested would have known about Cubone?

[00:11:08] Speaker 04:
Because his patent, that Sardilla application, is right in the same wheelhouse as this technology.

[00:11:14] Speaker 04:
It's certainly very highly relevant.

[00:11:16] Speaker 04:
So a skilled artisan that was thinking about this technology would have found that patent.

[00:11:21] Speaker 04:
And when they did, they would have

[00:11:24] Speaker 04:
seeing Cubone.

[00:11:25] Speaker 03:
Your Honor, even if we can believe Mr. Foti's conclusory statement that people knew about Cubone, there's still the Cubone article itself, and there's no roadmap to how a person would have actually found that.

[00:11:38] Speaker 03:
And we're talking about a printed publication, a document, and we need a roadmap from point A to point B. People could have generally known, oh, well, there's this thing called Cubone out there, and they're doing something.

[00:11:50] Speaker 03:
in this area.

[00:11:52] Speaker 03:
And they may have even known about Internet 2, but there's no evidence in the record that a person with more than a year's skill in the art would have known to search Internet 2 to find Cuba.

[00:12:01] Speaker 01:
Can I ask you, what additional things would Mr. Foddy, can you give me, hypothetically, because I'm just having a hard time understanding what you think

[00:12:12] Speaker 01:
What additional things needed to be in Mr. Foody's declaration or in the record in order to satisfy the test?

[00:12:17] Speaker 03:
Certainly, Your Honor.

[00:12:18] Speaker 03:
And I don't need to rely on hypotheticals.

[00:12:20] Speaker 03:
I can rely on this court's precedents.

[00:12:22] Speaker 03:
And voter verified the documented issue was actually disseminated by a subscription service to the interest of the public.

[00:12:28] Speaker 03:
And I believe it was the MIT case.

[00:12:31] Speaker 03:
There was a conference.

[00:12:32] Speaker 03:
There was a poster at a conference.

[00:12:33] Speaker 03:
50 to 500 people were at that conference.

[00:12:37] Speaker 03:
So there was people.

[00:12:38] Speaker 01:
So there needed to be evidence that people actually looked at.

[00:12:42] Speaker 01:
Mr. Foti's printed patent application?

[00:12:46] Speaker 03:
If there are evidence that a critical mass of the interested public had looked at the patent application and knew that the Q-Bone technology he was talking about had a specific article attached to it and that those interested

[00:13:00] Speaker 03:
members of the public knew how to find that article, that would get us closer to where we are now.

[00:13:06] Speaker 03:
As of now, all we have are very vague and conclusory assumptions.

[00:13:10] Speaker 03:
And I know I'm into my rebuttal time.

[00:13:11] Speaker 03:
I know Judge Laurie would want to talk about COVID, but perhaps I could reserve that time for some golden discussion at the end.

[00:13:17] Speaker 00:
Well, if your opposing counsel addresses it, then you will be able to rebut it.

[00:13:22] Speaker 00:
OK.

[00:13:23] Speaker 00:
Mr. Lowes.

[00:13:32] Speaker 02:
Andrew Lowes on behalf of Apple Ease, RPX, and Erickson with me at council table, Mr. Adam Fowles.

[00:13:38] Speaker 02:
I may have pleased the court.

[00:13:40] Speaker 02:
I'd first like to address a couple of statements that were made by opposing counsel.

[00:13:44] Speaker 02:
He said there's no evidence that Q-Bone is available in the PTO files.

[00:13:48] Speaker 02:
I can assure you that, in fact, that is the very cue bone reference that is an issue in this case.

[00:13:54] Speaker 02:
At APPX 3837 to 3866, we obtained it directly from the Patent Office.

[00:14:00] Speaker 02:
And that's what we've utilized in this case.

[00:14:02] Speaker 02:
It's the cue bone reference that Mr. Foti obtained in 2000 as he testified in his declaration.

[00:14:11] Speaker 02:
He then utilized that in preparing his patent application as sort of the base

[00:14:15] Speaker 02:
and added on to an additional disclosure, describes that in his patent application.

[00:14:19] Speaker 02:
And then as he submitted his patent application, it was incorporated by reference into the patent application.

[00:14:24] Speaker 02:
He submitted it with the filing in December of 2000.

[00:14:26] Speaker 01:
So when you say that the cube bone reference was at the PTO, you're talking it's within the file history of a particular patent application?

[00:14:35] Speaker 02:
Absolutely, yes, Your Honor.

[00:14:37] Speaker 01:
OK.

[00:14:37] Speaker 01:
But it's not like you're saying that it's somehow indexed somewhere in the PTO.

[00:14:43] Speaker 02:
That's correct.

[00:14:44] Speaker 02:
To the extent its index is indexed as a part of the Patent Office's indexing of the Sardilla patent application, which Mr. Foti is also a co-inventor on.

[00:14:54] Speaker 02:
But that is the actual cube bone that's at issue here.

[00:14:57] Speaker 02:
So I just wanted that to be clear.

[00:14:59] Speaker 01:
We understand that.

[00:15:00] Speaker 01:
The question is whether that's enough.

[00:15:02] Speaker 01:
Right?

[00:15:04] Speaker 02:
Right.

[00:15:04] Speaker 02:
And I think, really, there are three distinct instances that they're related, but each of those could form a basis for public accessibility.

[00:15:13] Speaker 02:
The first is Mr. Foddy, by himself, having a copy.

[00:15:16] Speaker 02:
Similar to Noble BioCare, you had a salesman that went to a trade show, picked up a copy of that reference.

[00:15:23] Speaker 02:
It was corroborated because he gave it to his colleague, who put it in a file.

[00:15:26] Speaker 02:
Here we have Mr. Foddy going to a publicly available website.

[00:15:31] Speaker 02:
downloading a copy, printing it for himself.

[00:15:33] Speaker 01:
It is a little different though because in the circumstance that you were just talking about there were presumably multiple copies available for anybody to take and the person took one and then it was the the copy was corroborated.

[00:15:46] Speaker 01:
Here on the other hand the concern

[00:15:49] Speaker 01:
that I hear being expressed by your opposing counsel is that Mr. Foddy himself may have been the only person in the world to find this.

[00:15:57] Speaker 01:
How does Mr. Foddy's finding of this reference show that it was publicly accessible and not just something that he found on his own?

[00:16:05] Speaker 02:
Sure, Your Honor.

[00:16:07] Speaker 02:
That's into the second prong, which is this voter verified kind of it's placed on a website.

[00:16:11] Speaker 02:
How does somebody know about this website?

[00:16:14] Speaker 02:
So I think that goes into the second prong as well.

[00:16:17] Speaker 02:
And here there's evidence, Mr. Foti testified, that the Internet2 website was known through the IETF materials.

[00:16:25] Speaker 02:
Where's that?

[00:16:27] Speaker 02:
It's exhibit 1035 where in the IETF materials that they referenced.

[00:16:31] Speaker 01:
Oh, no, that it was known.

[00:16:32] Speaker 01:
You said that he testified that Internet2 was known.

[00:16:36] Speaker 01:
I didn't see that, that where there was testimony that a poser would look to Internet too.

[00:16:44] Speaker 02:
I believe, let's see, I believe

[00:16:58] Speaker 02:
I was directed to the Internet2 organization.

[00:17:00] Speaker 02:
I believe it's maybe not directly in his testimony, but it's through the IETF document that referenced the Internet2 website, which is attached to a reference to his declaration.

[00:17:12] Speaker 00:
Tell us why Golden renders the claims obvious.

[00:17:16] Speaker 02:
Golden has set forth

[00:17:18] Speaker 02:
in the decision, as well as in our briefing, Golden provides on-demand bandwidth allocation through a desired route, which is exactly what the claims are about.

[00:17:29] Speaker 02:
Instead of having a dedicated line that's only used for one set of parties, it now allows that bandwidth to be switched between parties, depending on who wants it.

[00:17:39] Speaker 02:
In response to requests, Golden provisions that line with the amount of bandwidth, and it may be done with a predefined path.

[00:17:47] Speaker 02:
the board was correct in reaching their decision concerning the construction of dynamically provisioned and Found that you know it did not exclude the use of predefined paths So I think you know on that basis it has that An additional aspect in addition to the voter verified type situation where we have that the website itself was known and there's there's a

[00:18:17] Speaker 04:
Further evidence we also have the patent offices actions in publishing making the website itself was known I don't know what website you're talking about the internet the internet to website What what is the evidence that a skilled artisan would look at the internet to website to?

[00:18:37] Speaker 04:
Search it to find things relevant to this technology

[00:18:40] Speaker 02:
Mr. Foddy's testimony concerning looking at the IETF documentation and its reference to the bandwidth brokers and the Cubone architecture and referencing that that working group is part of the Internet2 organization.

[00:18:56] Speaker 04:
So here's the problem.

[00:18:57] Speaker 04:
I mean, for all I know, IETF is just as obscure as Internet2 is.

[00:19:02] Speaker 04:
I mean, I don't know that either of them are obscure, and I'm not attempting to pass judgment.

[00:19:05] Speaker 04:
I'm trying to say his argument is all Foddy's testimony tells you

[00:19:09] Speaker 04:
is what one idiosyncratic individual did.

[00:19:12] Speaker 04:
His testimony doesn't tell you what a POSA would do, and that that's how it's deficient.

[00:19:18] Speaker 04:
So I'm not understanding your argument.

[00:19:23] Speaker 02:
So Mr. Foti's testimony is one aspect.

[00:19:26] Speaker 02:
There are also additional documents concerning the Internet2 organization.

[00:19:30] Speaker 02:
They were actually submitted by Iridescent in their Patent on a Preliminary Response, exhibits 2003 and

[00:19:38] Speaker 02:
2004.

[00:19:39] Speaker 04:
And those documents demonstrate that Internet2 was a website that people of skill and the art would go to?

[00:19:45] Speaker 02:
Internet2 was a well-known organization working on the Cubone architecture, basically demonstrating how well-known it was.

[00:19:53] Speaker 02:
Mr. Fode testified that Internet2 housed articles relevant to that kind of research.

[00:19:58] Speaker 02:
So the Internet2 organization was known, demonstrated by these articles corroborating Mr. Foody's testimony.

[00:20:07] Speaker 04:
Can you tell me where in the appendix I would find those?

[00:20:10] Speaker 04:
That the Internet2 was a well-known organization for information related to this technology?

[00:20:28] Speaker 02:
Certainly the FODE declaration as well as APPX 4223 to 4226.

[00:20:37] Speaker 02:
That's just the FODE.

[00:20:38] Speaker 02:
That's the FODE declaration, yes.

[00:20:41] Speaker 04:
Where does it say that the Internet2 organization was well known in this technology?

[00:20:50] Speaker 00:
Have your associate can help you in the remaining seven minutes.

[00:20:58] Speaker 02:
Yes, Your Honor.

[00:20:59] Speaker 02:
It's at Exhibit APPX 4451, information supplied by Iridescent concerning the Internet2 QoS Working Group, as well as APPX 4452 to 4453, Exhibit 204.

[00:21:18] Speaker 04:
OK.

[00:21:18] Speaker 04:
Well, I'm on Exhibit 4451, and this just seems to be a printout from Internet2's website.

[00:21:26] Speaker 04:
doesn't actually say what you said, which is that Internet2 was a well-known organization on this technology that People with Skill and the Art would look to.

[00:21:36] Speaker 04:
So this is just literally a printout from Internet2's website.

[00:21:40] Speaker 04:
I don't understand how that supports the idea that it is a website People with Skill and the Art would turn to.

[00:21:45] Speaker 02:
It supports that it was out there, that that's what its goal was, its mission was... But everything is out there.

[00:21:51] Speaker 04:
Every public accessibility case is something that's out there.

[00:21:54] Speaker 04:
The question is, is it publicly accessible?

[00:21:56] Speaker 04:
Would a skilled artisan find it if you were looking for it?

[00:22:01] Speaker 04:
You have to not necessarily know it exists, right, when you're looking for it.

[00:22:05] Speaker 04:
Would a skilled artisan find this?

[00:22:07] Speaker 02:
Right, in terms of what are the roadmaps to help a scholar and find it, we have obviously Mr. Foti's patent application, which directly referenced the Internet2 working group, as well as provided URL.

[00:22:19] Speaker 02:
We also have this additional totality of circumstances, evidence that Internet2 existed as organization.

[00:22:26] Speaker 02:
It was relevant to research in this space.

[00:22:29] Speaker 02:
There was references to it in other research organizations, the IETF, which at the back of that document lists a lot of recipients that are part of that organization.

[00:22:41] Speaker 02:
And so based on the totality of the circumstances, this is what people of skill and the art were doing.

[00:22:46] Speaker 02:
They were looking at this kind of information.

[00:22:48] Speaker 02:
That's what Mr. Foti testified to.

[00:22:50] Speaker 02:
That's what brought him to looking at IETF documents and ultimately to the Internet2 website with Cubone, describing the Cubone architecture.

[00:22:59] Speaker 02:
If I may switch to the actions by the Patent Office that I think also demonstrate public accessibility, consistent with this court's decision in Brucklemeyer, the Sardilla patent application was published by the Patent Office.

[00:23:15] Speaker 02:
It had a discussion of QBone.

[00:23:19] Speaker 02:
directed the reader to that.

[00:23:22] Speaker 02:
It was also incorporated by reference.

[00:23:25] Speaker 02:
In Brucklemeyer, it was a Canadian patent application published, but it had left out figures three and four related to heating the ground.

[00:23:32] Speaker 02:
And the court determined that there was some discussion of heating the ground in the printed document, which would lead a person of skill in the art back to the Canadian Patent Office to look at those records.

[00:23:42] Speaker 02:
I submit that this case is very similar.

[00:23:45] Speaker 02:
There's information.

[00:23:46] Speaker 02:
that is described as being present, but it's expressly recognized as it's not present.

[00:23:51] Speaker 02:
It's incorporated by referencing another document.

[00:23:55] Speaker 02:
It would lead that reader back to a resource.

[00:24:00] Speaker 02:
One would be the URL site for Internet2.

[00:24:03] Speaker 02:
But a personal scaling art is not a robot.

[00:24:05] Speaker 02:
If it's not there, they would also know, let's look in the patent office.

[00:24:08] Speaker 02:
It's the repository for information.

[00:24:11] Speaker 02:
So I submit that this case also fits within the court's Bruckl-Meier decision.

[00:24:15] Speaker 02:
It's consistent with the Weir decision, the Australian.

[00:24:18] Speaker 04:
Didn't the board actually hold the URL and the patent application?

[00:24:22] Speaker 04:
It no longer works.

[00:24:23] Speaker 04:
They weren't able to verify whether the document was or was not, in fact, publicly available at the time.

[00:24:28] Speaker 02:
There is evidence that it no longer works.

[00:24:32] Speaker 02:
They ultimately decided that inclusion in the patent office records and laying those open was insufficient under Brucklmeyer.

[00:24:41] Speaker 02:
But that I think is something that this court should consider.

[00:24:46] Speaker 02:
It's not necessary.

[00:24:47] Speaker 02:
They can certainly affirm the board based on the evidence that is up record concerning all the different aspects.

[00:24:52] Speaker 04:
And is this whole case affirmable under Golden as well?

[00:24:56] Speaker 04:
Does Golden affirm everything?

[00:24:57] Speaker 04:
I know Q-Bone affirms everything.

[00:24:59] Speaker 04:
Does Golden affirm everything?

[00:25:00] Speaker 02:
It does not.

[00:25:00] Speaker 02:
Golden was only asserted against one of the patents.

[00:25:03] Speaker 02:
Q-Bone was asserted against both.

[00:25:04] Speaker 04:
So we have to decide Q-Bone even if we agreed with you on Golden?

[00:25:07] Speaker 02:
Correct, Your Honor, yes.

[00:25:10] Speaker 02:
Are there any further questions?

[00:25:15] Speaker 04:
So I always get confused by this.

[00:25:18] Speaker 04:
The PTO doesn't necessarily follow the rules of federal evidence, right?

[00:25:23] Speaker 02:
in the PTAP proceedings.

[00:25:25] Speaker 02:
They're the general guidelines, but there are definitely variances.

[00:25:28] Speaker 04:
And the reason I ask is, do you think a lay witness could offer the testimony?

[00:25:33] Speaker 04:
So the smoking gun in a case like this is an expert witness who says, one of skill in the art at that time would have found this reference.

[00:25:43] Speaker 04:
Here is the websites they would have gone to that are relevant.

[00:25:46] Speaker 04:
That's the smoking gun.

[00:25:47] Speaker 04:
And what you have instead is this lay witness that says, this is what I did.

[00:25:52] Speaker 04:
He actually says in one paragraph that he thinks a skilled artisan would have done something.

[00:25:56] Speaker 04:
But I actually, under the federal rules of evidence, 701 and 702, I don't think a lay witness could actually offer such testimony about what a skilled artisan would have done.

[00:26:06] Speaker 04:
So I guess I'm kind of questioning whether or not you agree with that.

[00:26:11] Speaker 04:
I mean, certainly we have cases that say only experts, not lay witnesses, can offer testimony on things like obviousness or stuff like that.

[00:26:18] Speaker 04:
So what are your thoughts on whether or not Mr. Foddy could have taken you across the finish line?

[00:26:25] Speaker 04:
Maybe cumulatively everything takes you across the finish line, but could Mr. Foddy have done it all for you?

[00:26:31] Speaker 02:
First, yes.

[00:26:32] Speaker 02:
I think the Noble Wild Care case is a prime example where it's not an expert talking, it's people that actually did it.

[00:26:38] Speaker 02:
It's actual dissemination of a single copy of a reference.

[00:26:42] Speaker 02:
But as to your point about could he?

[00:26:44] Speaker 04:
But that's because those are the people that disseminated the reference.

[00:26:47] Speaker 04:
Mr. Foddy's testimony is not that he disseminated the reference.

[00:26:50] Speaker 04:
He sort of takes you through the labyrinth of how he found the reference.

[00:26:54] Speaker 04:
And the question is, is that a same path that another skilled artisan would have necessarily taken?

[00:27:00] Speaker 02:
And I certainly will answer your question.

[00:27:01] Speaker 02:
But first, in noble biocare, the primary witness was actually the one who found it.

[00:27:07] Speaker 02:
It was disseminated by a company, and he's the one that found it.

[00:27:11] Speaker 02:
He is a person of ordinary skill in the art.

[00:27:13] Speaker 02:
So he can testify about what others would know.

[00:27:16] Speaker 02:
I don't think you need to be an expert to talk about what others in your field would know or do, because that's his experience.

[00:27:23] Speaker 02:
He's experienced in searching and locating this information.

[00:27:26] Speaker 02:
That's in his declaration that that's why he was doing this.

[00:27:29] Speaker 04:
I kind of feel like that goes.

[00:27:31] Speaker 04:
Do you remember what 701 and 702 say?

[00:27:33] Speaker 04:
If you're going to offer scientific and technical knowledge,

[00:27:37] Speaker 04:
in general that you have to be an expert to do it if that's why you're offering it to assist the trier.

[00:27:43] Speaker 04:
But I think lay witnesses are only allowed to testify about their own firsthand knowledge and information.

[00:27:50] Speaker 04:
And I think the rules of evidence exist to protect parties from being disadvantaged by having non-experts offer expert testimony.

[00:28:00] Speaker 02:
Certainly, but his testimony is corroborated.

[00:28:04] Speaker 02:
He did, in fact, have it.

[00:28:06] Speaker 02:
He found it.

[00:28:07] Speaker 02:
It was located on that website, the URLs on the exhibit, the date that it was printed, June 2000.

[00:28:13] Speaker 02:
It all corroborates his testimony.

[00:28:16] Speaker 01:
Do you know of any cases where a court is held, our court is held, that a fact witness can talk about the knowledge of a POSA in any context?

[00:28:25] Speaker 01:
You know, whether it's 103 or anything else, I mean, a fact witness being a POSA, a person who actually qualifies, but they're just a fact witness, can they talk about what a POSA would know?

[00:28:36] Speaker 02:
So can they serve in both roles of being a fact witness?

[00:28:40] Speaker 01:
Yeah, outside of the context, any context.

[00:28:43] Speaker 01:
In patent law, we're looking at what does the person of ordinary scale in New York know in many different contexts of legal issues we look at.

[00:28:53] Speaker 01:
So I'm asking you if you're perhaps aware of any cases where we've said that a fact witness

[00:28:59] Speaker 01:
Can talk about what opposed it would know a person border area scaling or it would know yes, you're at this point No, I don't I don't know of any of those cases.

[00:29:07] Speaker 02:
I See the amount of time Thank you counsel.

[00:29:10] Speaker 00:
Thank you.

[00:29:11] Speaker 00:
Let's hear from Mr.. Holhand.

[00:29:14] Speaker 03:
This is a bottle time I apologize for me speaking earlier about the presence of

[00:29:24] Speaker 03:
of the file history.

[00:29:26] Speaker 03:
What I was saying, my understanding based on the record, my understanding of the record is that it was never publicly available in the file history.

[00:29:32] Speaker 03:
It may have been lodged with the patent office, but as the board correctly held in rejecting the first grounds for finding it a 102A reference, it's the incorporation by reference and the reference to it in the patent application was not satisfactory to render to print a publication.

[00:29:51] Speaker 03:
With that, the board's decision as to the file history piece, the first argument we believe is correct.

[00:29:59] Speaker 03:
Unless your honors have any questions on that, I'm happy to talk about Golden in the time that I have left.

[00:30:06] Speaker 03:
The Golden reference, the fundamental issue is that the board found credible this idea that you could upgrade the terminating endpoint into a host, which Golden does say you can do.

[00:30:19] Speaker 03:
You can further infer from that that there would then be a communication path from the new upgraded host to the controller.

[00:30:26] Speaker 03:
What would happen if you did that is that the upgraded host would tell the controller, I need a channel.

[00:30:33] Speaker 03:
the controller would communicate with the subcontrollers, pick a predetermined, not dynamically provisioned, but predetermined channel, and then authorize the upgraded host to communicate via that channel to the terminating endpoint.

[00:30:49] Speaker 03:
There is simply no arrow between the controller and the terminating endpoint for the upgraded host.

[00:30:58] Speaker 03:
and Cubone would simply never do that because Cubone doesn't need to do that because all of its channels are pre-calculated.

[00:31:06] Speaker 03:
The iridescent patents

[00:31:08] Speaker 03:
require that communication from the controller to the terminating endpoint because the controller needs to calculate all of the parameters of the network in order to calculate and construct on the fly the channel.

[00:31:22] Speaker 01:
You said cubo when you were talking about the fur.

[00:31:24] Speaker 01:
I'm sorry.

[00:31:24] Speaker 01:
Did you mean golden?

[00:31:25] Speaker 01:
I meant golden.

[00:31:25] Speaker 01:
I just got confused.

[00:31:26] Speaker 01:
I meant golden.

[00:31:27] Speaker 03:
Okay, thank you.

[00:31:29] Speaker 03:
I appreciate the clarification.

[00:31:30] Speaker 03:
You can tell what we're all thinking about today.

[00:31:33] Speaker 03:
In the iridescent patterns, the host, the originating endpoint, communicates to the controller.

[00:31:40] Speaker 03:
The controller must communicate with the terminating endpoint so that it can then construct the channel on the fly, dynamically provision the path.

[00:31:50] Speaker 03:
And then at that point, the originating endpoint and the terminating endpoint communicate via that path.

[00:31:55] Speaker 03:
In Golden, that never happens.

[00:31:58] Speaker 03:
There's one communication, host to controller, the controller communicates with the subcontrollers, picks a path, and then the communication goes from the host to the terminating endpoint.

[00:32:08] Speaker 01:
And this relies on your claim construction argument, right?

[00:32:12] Speaker 03:
And it does not, Your Honor, because the missing arrow from the controller to the terminating endpoint is simply not there, regardless of how you get through the claims.

[00:32:23] Speaker 03:
The claims explicitly require a path from the controller to the terminating endpoint, and that is simply not there and in no way suggested by Golden.

[00:32:32] Speaker 00:
Whether your argument is Golden or iridescent, we understand it.

[00:32:37] Speaker 00:
We'll take the case under advisement.

[00:32:38] Speaker 03:
Thank you, Your Honor.

[00:32:45] Speaker 02:
The audible cord is adjourned until tomorrow morning.

[00:32:48] Speaker 02:
It's an o'clock a.m.