[00:00:02] Speaker 01:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:06] Speaker 01:
God save the United States and this honorable court.

[00:00:15] Speaker 00:
Our first case for today is 20-1160, M&K Holdings versus Hanson.

[00:00:21] Speaker 00:
Mr. Bauer, please proceed.

[00:00:24] Speaker 02:
Good morning, Your Honors.

[00:00:25] Speaker 02:
This is John Bauer for M&K Holdings.

[00:00:31] Speaker 02:
In this case, we believe that the board erred in a couple of fundamental respects, and that they came to findings of fact that were not supported by substantial evidence.

[00:00:46] Speaker 02:
And we intend to... We did that in our brief, and we will outline that in our argument today.

[00:00:54] Speaker 02:
Basically, what's at issue, there's three issues, whether or not storing

[00:00:58] Speaker 02:
A reference is called Park and Zao on the JCTVC website.

[00:01:05] Speaker 02:
Those are publicly accessible.

[00:01:07] Speaker 02:
That's one issue.

[00:01:08] Speaker 02:
The second issue is whether during a quarterly meeting of the JCTVC, the presentations concerning the subject matter of Park and Zao also rendered them publicly accessible.

[00:01:22] Speaker 02:
And the third issue time permitting is whether or not the grounds for rejecting

[00:01:28] Speaker 02:
Claim 3 were valid and we believe they were not violated and that violated the APA by providing M and K notice.

[00:01:38] Speaker 02:
With respect to the first issue of the printed publication, I thought we have... This is Judge Bryson.

[00:01:44] Speaker 04:
Before you get into the printed publication issue, could I ask you just a real quick question about the third issue?

[00:01:50] Speaker 04:
And that is the question of whether the board departed from the theory presented in the petition.

[00:01:57] Speaker 04:
The board construed, as I read the opinion, the board construed claim three to allow it to be proved either by alternative one of limitation one J along with the added element of claim two or alternative two of limitation one J with the added element in claim three.

[00:02:20] Speaker 04:
Do you take issue with that claim construction or do you think it is correct?

[00:02:27] Speaker 02:
What them and K takes issue with is that Sam Song chose to reject... I understand that, but I'm asking, do you agree with that claim construction as a starting point?

[00:02:42] Speaker 02:
Yes.

[00:02:43] Speaker 04:
Okay.

[00:02:44] Speaker 04:
And you think that claim three is a proper dependent claim given that claim construction?

[00:02:55] Speaker 02:
Well,

[00:02:56] Speaker 02:
What we believe is that the claim construction provided by Samsung should control.

[00:03:04] Speaker 04:
I'm asking a predicate question of trying to see whether we're starting at the same point on the claim, whether this is a... You agree with the claim construction given by the board.

[00:03:18] Speaker 04:
And the second question is, do you think that

[00:03:23] Speaker 04:
This is an unusual form of dependent claim.

[00:03:26] Speaker 04:
Do you think it's an appropriate, proper form of dependent claim?

[00:03:32] Speaker 02:
I think the form of the claim is a single embodiment, which requires that claim to be construed to cover that embodiment.

[00:03:44] Speaker 02:
And that's what Samsung did when it drafted the petition.

[00:03:49] Speaker 02:
basically said that with respect to claim three, we need to add the PARC and ZAU references to render that claim limitation obvious because the primary reference, WD4V3, did not in fact anticipate for that claim.

[00:04:14] Speaker ?:
Okay, thank you.

[00:04:14] Speaker 02:
Go ahead.

[00:04:14] Speaker 02:
Sure.

[00:04:16] Speaker 02:
So if we go back

[00:04:18] Speaker 02:
back to whether or not the Park and Zao are considered printed publications.

[00:04:27] Speaker 02:
They were stored on the JCTVC website.

[00:04:34] Speaker 02:
And basically what the JCTVC is, it's a joint collaborative team on video coding.

[00:04:40] Speaker 02:
And it was established in 2010 by the combined VCAG and MPEG to establish

[00:04:46] Speaker 02:
the new generation video coding standard.

[00:04:49] Speaker 02:
And they gave the name High Efficiency Video Coding, HEVC, as the project name.

[00:04:56] Speaker 02:
And in January of 2010, there was a call for proposal, and the first quarterly meeting took place in April 2010 when these proposals were considered.

[00:05:08] Speaker 02:
The function of these quarterly meetings was to develop the HEVC standard.

[00:05:13] Speaker 02:
And the document that embodied the current status and development of the HEV standard was referred to as a working draft.

[00:05:22] Speaker 02:
And to develop the new generation HEV standard or the working draft, documents that had been uploaded to the JCT VC and then mirrored to the MPEG were stored there for the purpose of being presented at a quarterly meeting.

[00:05:41] Speaker 02:
Because the quarterly meetings went through hundreds of documents and we spanned approximately a week, the meeting minutes expressly stated that what would actually be presented was not the input document itself, but a slide, two slides, and a limitation of approximately five minutes.

[00:06:04] Speaker 02:
And that's shown at A3448 and 3698.

[00:06:09] Speaker 02:
But the documents were in fact, these documents were uploaded to the JCTVC website.

[00:06:16] Speaker 02:
And because they were uploaded and ultimately considered for, considering to the AGVC standard, they were labeled input documents.

[00:06:26] Speaker 04:
But after each quarterly, yes.

[00:06:30] Speaker 04:
Now, with respect to the presentations that were made,

[00:06:35] Speaker 04:
I guess I have two questions.

[00:06:37] Speaker 04:
First is, is there any evidence as to whether the written documents were available at the time that the presentation was made?

[00:06:47] Speaker 04:
And, well, go ahead.

[00:06:51] Speaker 04:
You can answer that question.

[00:06:52] Speaker 02:
So if we move to presentations, they were, there's no evidence in the record

[00:07:02] Speaker 02:
of the actual documentation that was presented for either PARC or ZAL.

[00:07:08] Speaker 02:
All we have is a subsequently issued meeting report that talks about the subject matter of what was discussed.

[00:07:20] Speaker 04:
In the course of the presentations, is there any evidence as to whether there was an allusion to the underlying documents as in

[00:07:30] Speaker 04:
If you want more information about this presentation that I've just made, here's the document to look for.

[00:07:36] Speaker 02:
There is no evidence in the record of what documentation was actually looked at during those presentations.

[00:07:46] Speaker 04:
Is there anything to indicate that there was any suggestion that there's a way to obtain the more complete document than the... I would say that...

[00:08:00] Speaker 02:
I would say that because the documents were actually stored on the JCPVC website, it would have been possible for the member of that meeting to access it.

[00:08:14] Speaker 02:
But what's important here is that the input document as opposed to the working draft were not considered important by those interested artisans.

[00:08:29] Speaker 02:
If we look at the record,

[00:08:31] Speaker 02:
all of the evidence directed to the prominence of the JCTVC, the distribution of documents related to the JCTVC, they all relate to the working draft because the working draft was the latest standard.

[00:08:51] Speaker 02:
And that's what one of ordinary skill or the interested artisans were interested in.

[00:08:55] Speaker 02:
That is shown in Mr. Brock's first declaration

[00:08:59] Speaker 02:
and there's a separate section shown in Mr. Bross's supplemental declaration.

[00:09:06] Speaker 02:
There's no evidence in this case of an input document such as PARC or ZAU being distributed to the public at large.

[00:09:15] Speaker 02:
Not a single reference to ZAU and the only reference to PARC... Council, to be clear, when you say distributed, you mean at

[00:09:23] Speaker 00:
no evidence except for the fact that they were available on this website.

[00:09:28] Speaker 02:
Right?

[00:09:29] Speaker 02:
They were available, Your Honor, but the evidence is undisputed that Samsung provided no evidence, zero, that it could be searched.

[00:09:40] Speaker 02:
The only evidence that Samsung

[00:09:43] Speaker 00:
But they were available, and isn't there some evidence in this record?

[00:09:47] Speaker 00:
Let's start with JA 3600, which is the meeting notes that show that PARC and ZAU were specifically discussed.

[00:09:56] Speaker 00:
3600 shows PARC, 4077 shows ZAU.

[00:10:03] Speaker 00:
Isn't this evidence?

[00:10:04] Speaker 00:
I mean, we review this for substantial evidence.

[00:10:07] Speaker 00:
heavy burden to overcome and there's evidence here that these references were specifically discussed.

[00:10:14] Speaker 00:
These are summaries of the references in the meeting notes themselves.

[00:10:20] Speaker 00:
The references themselves were available on the website.

[00:10:23] Speaker 00:
And in addition to all of that, you have attendees.

[00:10:26] Speaker 00:
Mr. Bross was one of them.

[00:10:27] Speaker 00:
And his recollection at JA4986 and 4987 also supports the idea that these references in particular were discussed.

[00:10:38] Speaker 00:
He remembers specific discussion of the park reference in paragraph 20 and specific discussion of the ZAL reference in paragraph 21.

[00:10:47] Speaker 00:
So when there's a meeting,

[00:10:49] Speaker 00:
And there's actually summaries of references given and discussion of those references.

[00:10:55] Speaker 00:
And then the full references are fully available on the website.

[00:10:59] Speaker 00:
Why in the world isn't that substantial evidence that these references themselves were in fact publicly accessible?

[00:11:06] Speaker 02:
I direct your attention to your decision, the Federal Circuit's decision in Samsung Electronics, the Infobridge.

[00:11:15] Speaker 02:
And one of the issues was,

[00:11:19] Speaker 02:
whether or not a working draft in that case was hosted by on the JCTVC on the website, the fact that whether 250 of the JCTVC members, if they had access to it, was that sufficient?

[00:11:34] Speaker 02:
And what this court found was that this website is basically an ongoing collaboration to draft an updated standard.

[00:11:45] Speaker 00:
Council, this is Judge Moore.

[00:11:46] Speaker 00:
Are you trying to suggest

[00:11:47] Speaker 00:
that the Samsung electric case creates a rule of law with regard to what must exist for public accessibility.

[00:11:54] Speaker 00:
And the reason I ask that question is because we were reviewing the board and the board made a decision which is a fact question which we reviewed for substantial evidence on public accessibility.

[00:12:04] Speaker 00:
So isn't it possible that two different decisions, even under identical facts, which these are not identical, but even under identical facts, wouldn't we have to affirm based on a substantial evidence standard of review a fact question potentially?

[00:12:20] Speaker 02:
I'm not asking for this court to consider that as a rule of law.

[00:12:24] Speaker 02:
What I am saying is that on the facts of this case, with respect to the input documents, there is no evidence that these were

[00:12:33] Speaker 02:
distributed publicly because what everyone was interested in was the working draft.

[00:12:39] Speaker 02:
And when you then overlay that lack of evidence combined with the fact that the presentations were limited to the JCTVC members, and then also combine that with the fact that there's no evidence in the record that one could search that website to obtain those input documents,

[00:13:03] Speaker 03:
It was title searchable, right?

[00:13:06] Speaker 02:
It was title searchable, but there was no evidence in the record to say that one could identify it by search.

[00:13:15] Speaker 02:
And if I may, I'm a little bit over here.

[00:13:17] Speaker 02:
I just want to make this one point.

[00:13:19] Speaker 00:
You're using your rebuttal time.

[00:13:20] Speaker 00:
If you want to make additional points, it's at your own expense.

[00:13:23] Speaker 02:
OK.

[00:13:26] Speaker 02:
Samsung put forth evidence that one could search for a working draft.

[00:13:32] Speaker 02:
They put no evidence in that one would be motivated to or could search for an input document.

[00:13:37] Speaker 02:
The fact that Samsung did not put that evidence in for an input document is proof that Samsung did not believe that those documents could be identified by using the title search.

[00:13:51] Speaker 02:
If Samsung had thought so, they would have put it in, and they were required to, and it was their burden of proof.

[00:13:58] Speaker 02:
So the finding that these documents could be identified by title search by exercising reasonable diligence, there's nothing in the record to support that.

[00:14:08] Speaker 02:
In fact, the evidence is contrary to that.

[00:14:10] Speaker 02:
Otherwise, Samsung would have put it in because it knew based on the evidence that it put in for identifying a working draft that such evidence was needed.

[00:14:19] Speaker 02:
That's all for now.

[00:14:25] Speaker 00:
Okay.

[00:14:26] Speaker 00:
Let's hear from... How do I say your name, counsel?

[00:14:30] Speaker 01:
It's Timofiev, Your Honor.

[00:14:33] Speaker 00:
Timofiev?

[00:14:34] Speaker 01:
Yes.

[00:14:35] Speaker 00:
Okay.

[00:14:35] Speaker 00:
Mr. Timofiev, please proceed.

[00:14:39] Speaker 01:
Thank you, Your Honor, and may it please the court.

[00:14:42] Speaker 01:
This is a substantial evidence appeal.

[00:14:44] Speaker 01:
The board here applied the proper legal standards, and MNK itself does not dispute the board's finding that the working draft reform was publicly excessive.

[00:14:52] Speaker 01:
It's a bill that's confined to two documents, as the council mentioned, to Park and Chao.

[00:14:57] Speaker 01:
The board's finding that these references were publicly accessible is amply supported by substantial evidence.

[00:15:03] Speaker 01:
And there are three key board findings that support that.

[00:15:07] Speaker 04:
This is Judge Bryson.

[00:15:10] Speaker 04:
Before you get into your argument on the main point, I ask you the same question I asked your opposing council.

[00:15:17] Speaker 04:
Do you concur

[00:15:19] Speaker 04:
with the board's construction of claim three, and I went through the construction with your opposing counsel, so you know what I'm talking about.

[00:15:28] Speaker 01:
Your Honor, we do think that the board was correct in its construction of claim three.

[00:15:32] Speaker 01:
In our petition, we proceeded on the basis that claim three was obvious for a combination of three references, WD-4, Park, and Zhao, and then we relied on the second element.

[00:15:44] Speaker 04:
Yeah, you relied on the theory that

[00:15:47] Speaker 04:
Claim 3 was predicated, at least for purposes of your argument, on alternative 2 of 1-J.

[00:15:57] Speaker 04:
The board said, well, but it's also predicated on alternative 1 of 1-J.

[00:16:05] Speaker 04:
And you agree with that?

[00:16:08] Speaker 01:
John, we do agree with that.

[00:16:09] Speaker 01:
The reason we proceeded on the... I'm sorry, you say you don't agree with that construction?

[00:16:15] Speaker 01:
No, I'm sorry, Your Honor, we do agree.

[00:16:17] Speaker 04:
Right, okay.

[00:16:18] Speaker 01:
All right, go ahead.

[00:16:19] Speaker 01:
We agree with the board's construction.

[00:16:22] Speaker 01:
We proceeded on the audits mystery predicated on the second element of claim 1J because there is no question in our view that claim free is obvious based on the combination of those three references.

[00:16:35] Speaker 01:
But we think that this court can affirm on the basis of the board's, and I want to be clear, we don't think it's a claim construction that's really an application of a claim language.

[00:16:45] Speaker 01:
It's just that the claim presents two different alternatives.

[00:16:49] Speaker 01:
There was no claim construction as the board actually self-observed.

[00:16:52] Speaker 04:
Right.

[00:16:53] Speaker 04:
But there's at least an implicit claim construction.

[00:16:55] Speaker 04:
One could draw from the board's construction that claim three can be satisfied either by alternative one or alternative two.

[00:17:04] Speaker 04:
One could be led by the way you argued the case to suggest that perhaps claim three was limited to alternative two, since you didn't present the argument, which was the one that the board found to be more straightforward, that alternative one was available as well.

[00:17:24] Speaker 01:
That is correct.

[00:17:25] Speaker 01:
That is correct, Your Honor.

[00:17:26] Speaker 01:
But we think here this court can affirm on the basis of the board's

[00:17:31] Speaker 01:
the board's application of claim, claim element 1J.

[00:17:34] Speaker 04:
And that raises the question, however, that whether the board's departure from the theory and the petition is a departure that is not permitted under our case law with regard to the board's freedom to decide cases on theories other than the ones presented in the petition.

[00:18:01] Speaker 04:
Why doesn't this case fall into that category?

[00:18:04] Speaker 01:
Your Honor, we believe that this case here is, even if there was any error, it's a harmless error, the board, because the board, as Your Honor observed, the board found an easier way to determine that claim-free is unpatentable, and it found anticipation by WD-4, and then it observed that because anticipation is the epitome of obviousness, claim-free would also be obvious under the combination of free references.

[00:18:28] Speaker 03:
Mr. Simopheus, this is Judge Chen.

[00:18:31] Speaker 03:
Your answer to Judge Bryson's question seems to be that the board happened to find an easier route to rendering the claims unpatentable than the theory that you presented in your petition.

[00:18:46] Speaker 03:
And do you have another explanation?

[00:18:49] Speaker 03:
Because that explanation alone doesn't seem to answer the core concern about a due process defect in the board electing to

[00:18:59] Speaker 03:
employ a theory that it was never presented by the petition or at any point during the trial.

[00:19:08] Speaker 01:
We think that there is no due process problem here because the board relied on all the evidence on which the board relied in its analysis was disclosed and now without petition.

[00:19:19] Speaker 01:
We also discussed all the relevant claim limitations.

[00:19:22] Speaker 01:
And I think what is key here is MNK never presented any argument to contest the un-presentability with respect to any of the claim limitations.

[00:19:33] Speaker 01:
It only challenged the

[00:19:35] Speaker 01:
The only challenge it presented was based on the printed publication status of WD4, Park and Chao.

[00:19:40] Speaker 03:
So we think here there is no... Do you take that as some kind of concession that the claim is unpatentable or is it still your burden of proof to convince the patent board that the claims are unpatentable despite the fact that the patent owner did not elect to put on any kind of substantive rebuttal argument?

[00:20:03] Speaker 01:
It is certainly our burden of proof.

[00:20:06] Speaker 01:
We think we satisfied it by presentation of the evidence and the arguments in our petition.

[00:20:12] Speaker 01:
We think that here, I mean, the court can certainly remand and direct the board to analyze claim three under the obviousness ground that we present in the petition.

[00:20:22] Speaker 01:
We think, given that MAK did not present any challenge to unpredictability arguments, a remand would just be futile.

[00:20:36] Speaker 01:
John, if there were no other questions on Claim 3, I'd like to make a few key points on the print of publication.

[00:20:43] Speaker 00:
That's fine, counsel.

[00:20:44] Speaker 00:
But before you do, let me just ask, I'm sure you listened to my discussion with opposing counsel.

[00:20:51] Speaker 00:
Let me just summarize what I see in this record.

[00:20:55] Speaker 00:
I see two declarations from Mr. Bross and Mr. Vettro that collectively evidence Parkinson's Accessibility.

[00:21:03] Speaker 00:
The reference was on the website, the reference was discussed at meetings as the meeting notes themselves demonstrate, and Mr. Bross and Mr. Vettro confirm how the site is structured, how important VCTVC was to the community in general, and how the meetings were run.

[00:21:20] Speaker 00:
I've got to be honest, I'm hard pressed to imagine why that's not substantial evidence of public accessibility.

[00:21:26] Speaker 00:
And I understand their argument to be in part, Samsung Electric came out differently.

[00:21:30] Speaker 00:
Well, we were reviewing for substantial evidence a different set of facts on public accessibility there.

[00:21:36] Speaker 00:
So, I mean, I've made your argument for you.

[00:21:38] Speaker 00:
Did I miss anything?

[00:21:40] Speaker 01:
No, Your Honor, I think you summarized the key points.

[00:21:42] Speaker 01:
I would just add the, and I think you want to actually earlier refer to the meeting reports.

[00:21:47] Speaker 01:
So this is Appendix 3647, which demonstrates the discussion of both Park and Jow during the meetings.

[00:21:56] Speaker 01:
And I will say that the key, there are two key findings by the board.

[00:21:59] Speaker 01:
One is the

[00:22:00] Speaker 01:
the finding that these references were available prior to the meeting and during the meeting, and that attendees at the meetings necessarily consulted them and accessed them and reviewed them in order to make the decisions that actually reflected in the meeting reports, which were to incorporate proposals from those two references.

[00:22:18] Speaker 00:
Well, Council, Council, Council, let me correct you on the facts.

[00:22:20] Speaker 00:
You said they were available before the meeting and during the meeting.

[00:22:23] Speaker 00:
They're still up.

[00:22:24] Speaker 00:
They're available.

[00:22:24] Speaker 00:
They were available after the meeting as well, weren't they?

[00:22:26] Speaker 00:
They were perpetually available.

[00:22:29] Speaker 01:
Your Honor, they remain available and that was one of the goals of the JCPPC website because the JCPPC sought to publicize its work and so those references can still be accessed today.

[00:22:42] Speaker 01:
So I would say that the key findings is on pages appendix 53 to 56 with respect to the access during the meetings.

[00:22:51] Speaker 01:
And then the other key finding is that skilled artisans were motivated to access the JCTVC and actually could find these documents, park and shop rule, reasonable searches using common sense terms, and that would be on Appendix 1661.

[00:23:06] Speaker 01:
I would only add, and this is the last point, that we also presented evidence in the form of PTO applications and an article, and the PTO applications referred to the JCTVC input documents, and then the article itself, in fact, referred to one of the version of PARC.

[00:23:22] Speaker 01:
And the offers of those applications included some individuals who were not attending the JCTVC meetings.

[00:23:29] Speaker 01:
So that further demonstrates public accessibility.

[00:23:32] Speaker 01:
I can also walk through our reasons why this case is very different from Infobridge.

[00:23:37] Speaker 01:
But as John emphasized, this court reviews for substantial evidence on a case-by-case basis.

[00:23:43] Speaker 01:
And we think the records here, as the board repeatedly observed, is just much more robust than an Infobridge.

[00:23:49] Speaker 04:
Mr. Tomov, you've referred to the,

[00:23:52] Speaker 04:
specific evidence regarding the availability of the papers that were ultimately published and remain on the website.

[00:24:05] Speaker 04:
Can you help us with respect to the specificity of what was, how were those papers presented to the members of the conference?

[00:24:19] Speaker 04:
alluded to during the presentations, is there any evidence that, for example, that somebody said, well, here's my five-minute spiel and here are my two slides.

[00:24:29] Speaker 04:
If you want more information, here's the paper and here's where to find it.

[00:24:32] Speaker 04:
Anything like that, or do we simply have the fact that the papers were uploaded?

[00:24:40] Speaker 01:
Yolanda, there was evidence, and this was in the terms of the reference for the JCPPC, that there was a policy that all the input proposals would be deposited on the website.

[00:24:53] Speaker 01:
They had to be submitted at least a few days before the meeting, and they had to be consulted by the meeting participants to make decisions.

[00:25:04] Speaker 01:
There was also testimony by Mr. Bross,

[00:25:06] Speaker 01:
that he himself recalls discussing specifically park and job but also the other input documents which contain proposals in order to make decisions.

[00:25:16] Speaker 01:
So the evidence is that the very purpose of the website was to make all the proposals submitted to the meetings available to the meeting attendees so that then they could make decisions whether or not to incorporate particular aspects of those proposals into the HV standard that they were developing.

[00:25:35] Speaker 03:
Mr. Tomofio, this is Judge Chen.

[00:25:38] Speaker 03:
Just following up on Judge Bryson's question, when you look at those meeting notes that summarize what was discussed or critiqued or recommended for further study as to Park and Zhao, is the inference there that the fact that there were attendees that were

[00:26:02] Speaker 03:
making certain kinds of recommendations about these references that attendees somehow had already some fairly deep understanding of those references in order to be prepared to share those kinds of thoughts during the meeting and then have those thoughts recorded in those meeting notes.

[00:26:25] Speaker 01:
Yes, Your Honor, and the board made specific findings on this point.

[00:26:29] Speaker 01:
This is on pages 54 and 55 of the appendix, because the board found that the countries had discussed the documents in a sufficient manner to indicate that they were accessible to them.

[00:26:42] Speaker 01:
And the board also found that they necessarily, I quote, they necessarily must have been aware of the documents and their contents and accessed them at some point prior to the discussion to prepare for the discussion.

[00:26:53] Speaker 01:
And the board emphasized that the

[00:26:55] Speaker 01:
the attendees had to make, quote, intricate decisions about the documents.

[00:26:59] Speaker 01:
And so that necessarily, to get with the other evidence, led the board to a special conclusion that the meeting attendees had to review those documents in sufficient detail.

[00:27:10] Speaker 01:
And just to emphasize that there was no, there was also no expectation of confidentiality.

[00:27:15] Speaker 01:
There was no restriction on forward dissemination by the attendees of a JCTBC meeting.

[00:27:20] Speaker 01:
In fact,

[00:27:21] Speaker 01:
Quite the opposite, there was evidence that the policy of JCPVC was to make all of its work available, and there was evidence based on the testimony of Mr. Bross and Dr. Vetra that the members of the JCPVC were often approached with inquiries about its work and about the documents that led to the developing the JCPVC standard.

[00:27:47] Speaker 01:
If there are no other questions, I can rest on our papers.

[00:27:51] Speaker 00:
Thank you, Council.

[00:27:52] Speaker 00:
Mr. Bauer, you have some rebuttal time.

[00:27:54] Speaker 00:
How much rebuttal time does he have left, Joseph?

[00:27:57] Speaker 01:
Mr. Bauer has about one minute.

[00:27:59] Speaker 00:
Okay, go ahead, Mr. Bauer.

[00:28:02] Speaker 02:
The evidence, we simply don't know what was the documentation presented at those presentations.

[00:28:10] Speaker 02:
The record also shows that PARC was not even submitted prior to those presentations.

[00:28:16] Speaker 02:
In terms of the policy of making

[00:28:18] Speaker 02:
things available or documents available on the website.

[00:28:22] Speaker 02:
That may have been the case, but that's not sufficient.

[00:28:25] Speaker 02:
They must be able to be accessed by exercising reasonable diligence, and there's nothing in the record to show that one could do that.

[00:28:33] Speaker 02:
The evidence was to contrary.

[00:28:37] Speaker 02:
So in terms of the policy to make public and these supposed discussions about

[00:28:45] Speaker 02:
These documents, the actual inquiries that opposing counsel refers to, as shown by the record and in Mr. Bross's supplemental declaration, were directed exclusively to what the status of working draft was.

[00:28:58] Speaker 02:
So that when you contrast the working draft with input documents, what you find is that while the input documents were on the site, they were not searchable and they couldn't be identifiable.

[00:29:08] Speaker 02:
And then with respect to the presentation, we simply don't know what was presented.

[00:29:12] Speaker 02:
And it was certainly a fleeting representation given the hundreds of input documents that were presented for each during that week.

[00:29:21] Speaker 02:
And that is quite different from the case law, which deals with a single presentation over days or something supposed to like Kloffenstein over days.

[00:29:33] Speaker 02:
Whereas here,

[00:29:34] Speaker 02:
We have hundreds of input documents being gone through, and there's simply not evidence to support that these input documents were publicly accessible.

[00:29:43] Speaker 00:
Thank you, counsel.

[00:29:44] Speaker 00:
We have your argument.

[00:29:45] Speaker 00:
This case is taken under submission.