[00:00:00] Speaker 03:
Our first case is DDR Holdings versus Shopify, Priceline, and Booking.com.

[00:00:09] Speaker 03:
2021, 1297, 1298, and 1299.

[00:00:11] Speaker 03:
Mr. Hoffman.

[00:00:18] Speaker 02:
Thank you, Your Honor.

[00:00:19] Speaker 02:
May it please the court?

[00:00:22] Speaker 02:
I'd like to start with a little bit of a reality check here.

[00:00:29] Speaker 02:
invalidated claims of three continuation patents based on art that was the primary focus of prosecution before the examiner.

[00:00:40] Speaker 02:
And DDR introduced into the claims during those continuations the very element that this circuit held in the Hotels case was missing from the grandparent 572 patent as construed there.

[00:00:55] Speaker 02:
in that case, namely, correspondence of overall appearance between two webpages, the host and the outsource webpages.

[00:01:03] Speaker 04:
Well, that's not true.

[00:01:03] Speaker 04:
I mean, our decision in hotels accepted the stipulated construction, which required overall appearance, and said that that didn't require an overall match, but that this prior art anticipated or made obvious

[00:01:24] Speaker 04:
based on the overall appearance construction.

[00:01:30] Speaker 04:
I just think your strikes me you're misreading the hotel's decision.

[00:01:37] Speaker 04:
Yes, the term overall appearance wasn't in the language there, but it was the stipulated construction that the court was considering.

[00:01:52] Speaker 02:
In hotels, the courts wrote, both the district court and DDR introduced a limitation found neither in the claims nor in the 572 patent claims nor the parties stipulated construction.

[00:02:09] Speaker 02:
In particular, the district court introduced a requirement that the generated composite web page have an overall matching appearance with the host website.

[00:02:19] Speaker 02:
there's nothing in the stipulated construction of look-and-feel the claim language or the specification that requires that requires the generated composite web page to match the host website et cetera so we added that very limitation and tell you didn't it's a different language it's not overall match its overall appearance the court used the word overall match and overall appearance interchangeably

[00:02:46] Speaker 02:
uh... what would know it didn't it clearly distinguished between the defendants have and the court uh... in pita have never identified any difference between overall match and overall appearance and it is to read that i think i i i hear you i think what you're saying i think is that in this case your claims have the word correspond

[00:03:15] Speaker 00:
And the word match was found not to be in the claims in the hotel case.

[00:03:20] Speaker 00:
Is that what you're saying?

[00:03:22] Speaker 02:
The claims now talk about corresponding overall appearance.

[00:03:26] Speaker 02:
And the claims in the hotel's case in 572 Patton said that that was what we argued below.

[00:03:37] Speaker 02:
So DDR contended in the hotel's case that the

[00:03:44] Speaker 02:
The prior art, Digital River SSS, did not replicate the host website look and feel in terms of overall appearance.

[00:03:51] Speaker 02:
That was our argument in the Hotels case.

[00:03:54] Speaker 02:
And the district court concluded in the Hotels case, the reverse district court, concluded that the jury had found no corresponding overall look and feel.

[00:04:07] Speaker 02:
So what the appeals court said was that both the district court

[00:04:15] Speaker 02:
and DDR had introduced this requirement, which was that the overall appearance had to correspond and that that was... The match, the word match, that's what they said in hotels.

[00:04:25] Speaker 00:
Correct.

[00:04:26] Speaker 02:
But what they were reversing was a finding by the district court, and the finding of the district court was that no corresponding overall look and feel.

[00:04:39] Speaker 02:
Linguistically, there's no difference between overall match and correspondence in overall appearance.

[00:04:46] Speaker 02:
Correspondence and match have the same connotation.

[00:04:50] Speaker 00:
OK, I understand what you're saying.

[00:04:53] Speaker 00:
Something has to correspond, right?

[00:04:56] Speaker 00:
Right.

[00:04:57] Speaker 00:
The problem I'm having with your argument today is that when you talk about what has to correspond and you say overall appearance, overall appearance itself seems to be pretty broad.

[00:05:09] Speaker 00:
For example, I'm looking at claim one in the 228 patent, and it says,

[00:05:15] Speaker 00:
the overall appearance, there's a plurality of visually perceptible elements defining an overall appearance.

[00:05:26] Speaker 00:
It says that these plurality of visually perceptible elements comprise any of the following.

[00:05:33] Speaker 00:
Logos, colors, speech, layout, navigation systems, frames, and visually perceptible mouseover effects.

[00:05:40] Speaker 00:
And then it says the overall appearance

[00:05:43] Speaker 00:
I think it says corresponds, right?

[00:05:46] Speaker 00:
So that of the source page and the web page, I think, have to correspond.

[00:05:54] Speaker 00:
But the problem is, even if it corresponds, it seems really broad what it is that you're saying has to correspond.

[00:06:02] Speaker 00:
Colors, any of the following.

[00:06:04] Speaker 00:
Colors, logos, page layout, navigation.

[00:06:07] Speaker 00:
So what I'm trying to say is that even if the claims say correspond,

[00:06:13] Speaker 00:
What is supposed to correspond seems very broad.

[00:06:16] Speaker 02:
Well, the patent, including the 228 patent that you mentioned, Judge Stoll, says in the explicit claim language, an overall appearance of the composite web page that excluding information associated with the commerce object visually corresponds to the source web page.

[00:06:37] Speaker 02:
Whatever in the 228 pattern where it identifies that list of elements, you still have to meet the additional requirement that whatever collection of elements are in that appearance that meets that requirement that an overall appearance of the composite web page must visually correspond to the source web page.

[00:07:01] Speaker 00:
Do I remember correctly that you did not define the term overall appearance instead

[00:07:06] Speaker 00:
you said that it should have its plain and ordinary meaning, and when the board asked you for an understanding of what that term meant, you said, no, no, just plain and ordinary meaning.

[00:07:15] Speaker 02:
Yes, you are correct.

[00:07:16] Speaker 02:
Our view was that overall appearance of the web page visually corresponding to another web page is clear on its face, and we didn't seek any additional construction.

[00:07:35] Speaker 02:
Both of the 825 and 228 patents have that same language, that the overall appearance of the composite web page must visually correspond to the source web page.

[00:07:47] Speaker 02:
And so it's not that just several elements, or as it was put into petition, data, can correspond and have that meet that requirement.

[00:08:02] Speaker 00:
What about where the claim says

[00:08:05] Speaker 00:
The visually perceptible elements comprise any of the following.

[00:08:08] Speaker 00:
And it's many different options.

[00:08:10] Speaker 00:
And then it says, the plurality of visually perceptible elements define an overall appearance.

[00:08:17] Speaker 00:
So I shouldn't look at overall appearance just generically.

[00:08:22] Speaker 00:
I understand that it's defined by the visually perceptible elements that may be one of

[00:08:27] Speaker 00:
many different things.

[00:08:28] Speaker 02:
Right.

[00:08:28] Speaker 02:
That's how you define the overall appearance.

[00:08:30] Speaker 02:
And then you have to look at whether that overall appearance corresponds to the second overall appearance.

[00:08:36] Speaker 00:
What if the colors are the same?

[00:08:37] Speaker 00:
So visually perceptible elements include color.

[00:08:40] Speaker 00:
And it says the plurality of visually perceptible elements define an overall appearance.

[00:08:45] Speaker 00:
What if they have the same color?

[00:08:47] Speaker 02:
Well, that's exactly my point, is that if the only similarity were something like the same color, you would have to judge whether

[00:08:54] Speaker 02:
that was sufficient to meet the requirement that the overall appearance of that composite web page corresponds visually to the source web page.

[00:09:07] Speaker 02:
So that's a question of fact for a jury, but all you do is you define a

[00:09:17] Speaker 02:
an overall appearance by the method you described in the part of the claim you were reading, Judge Stoll, but you then must consider whether the overall appearance of that webpage visually corresponds to the other overall appearance

[00:09:33] Speaker 02:
And the third patent says that the composite web page visually corresponding to the source web page wherein the visual correspondence relates to overall appearance.

[00:09:45] Speaker 02:
So you can't have that met merely by having one or two elements that were similar.

[00:09:52] Speaker 00:
But that's a question of fact.

[00:09:53] Speaker 00:
Just having elements correspond.

[00:09:55] Speaker 00:
You said earlier that's a question of fact to the jury, right?

[00:09:58] Speaker 00:
But in this case, it's a question of fact to the board, right?

[00:10:00] Speaker 02:
Well, no, the error was that the PTAB did not ever consider the question of whether the two pages correspond.

[00:10:11] Speaker 02:
They never compared or never showed that the references talked about comparing overall appearance.

[00:10:17] Speaker 02:
What the hotel's decision said was that they merely said that they required

[00:10:30] Speaker 02:
They reached the conclusion based solely on the Hotels case where the overall appearance was not considered and was said not to be necessary.

[00:10:42] Speaker 04:
But that's just not true.

[00:10:43] Speaker 04:
What the Hotels case says is a stipulation that it meant overall appearance and it says Digital Rivers SSS clearly satisfies this limitation.

[00:10:54] Speaker 02:
But because they did that because the district court in DDR introduced a limitation that was not now.

[00:11:00] Speaker 04:
No, no, no, no.

[00:11:01] Speaker 04:
Overall appearance was not the introduced limitation.

[00:11:06] Speaker 04:
That's overall match.

[00:11:07] Speaker 04:
It's a different term.

[00:11:10] Speaker 02:
The correspondence of overall appearance

[00:11:15] Speaker 02:
was not required because that was the introduction, the limitation that the district court introduced.

[00:11:21] Speaker 04:
There's no discussion of the word corresponding in hotels.

[00:11:25] Speaker 04:
What it says is the parties agreed to a construction of overall appearance and it said clearly and explicitly that the digital river prior arts satisfies that limitation.

[00:11:41] Speaker 02:
It says that the

[00:11:42] Speaker 02:
there's an extra limitation that was introduced and that that's why without that introduction.

[00:11:49] Speaker 04:
How can you stand up there and argue that that's that limitation that's the new limitation when the opinion explicitly says the new limitation is the match limitation not the overall appearance limitation?

[00:12:03] Speaker 02:
That's the limitation that we added to the claims now by talking about correspondence of

[00:12:10] Speaker 02:
between the two pages.

[00:12:12] Speaker 02:
You mean that means overall match?

[00:12:13] Speaker 02:
Yes.

[00:12:14] Speaker 02:
You didn't argue that, did you?

[00:12:16] Speaker 02:
Yes, we did.

[00:12:17] Speaker 02:
You wouldn't ask for such a construction?

[00:12:20] Speaker 02:
No.

[00:12:21] Speaker 02:
Overall match was a shorthand term used for correspondence of overall impression.

[00:12:26] Speaker 02:
We don't need to construe

[00:12:27] Speaker 02:
a clear term based on a less clear term overall match.

[00:12:31] Speaker 02:
But if you look at what the district court reversed, they reversed the finding of the district court that there was no correspondence of overall appearance because we introduced this requirement.

[00:12:47] Speaker 02:
The district court and us introduced this requirement, Your Honor.

[00:12:51] Speaker 03:
Counsel, you're well into your rebuttal, Tom.

[00:12:52] Speaker 03:
You can continue or save it.

[00:12:55] Speaker 02:
I think I'd like to reserve the remainder.

[00:12:59] Speaker 03:
We will do that for you.

[00:13:02] Speaker 03:
Mr. Snell?

[00:13:17] Speaker 03:
You don't need your mask if you don't want to wear it.

[00:13:21] Speaker 01:
Thank you, Your Honor.

[00:13:25] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:13:27] Speaker 01:
The final written decisions of the Patent Trial and Appeal Board were correctly decided and should be affirmed for three reasons.

[00:13:34] Speaker 01:
First, the final written decisions are supported by substantial evidence, which is the appropriate standard for review.

[00:13:42] Speaker 01:
The PTAB's factual finding that the Digital River publications disclose a composite webpage having an overall appearance or look and feel that visually corresponds to a host webpage

[00:13:54] Speaker 01:
was correct is amply supported in the record and DDR cannot meet its high burden on appeal of demonstrating that this factual finding from the PTAB was unreasonable or implausible.

[00:14:06] Speaker 00:
Council, is it your view that the PTAB not only said, you know, your argument is foreclosed by hotels, but it also said, or the reasoning in hotels applies here, but it also expressly said

[00:14:18] Speaker 00:
that, as you're saying, that there was evidence to show that Digital River actually taught the claim limitation.

[00:14:28] Speaker 00:
Yes.

[00:14:29] Speaker 00:
What would you point me to?

[00:14:30] Speaker 00:
I was looking at page A23, but do you think there's other pages in the PTAP's decision that support your view?

[00:14:35] Speaker 01:
Yes, Your Honor.

[00:14:38] Speaker 01:
In the PTAP's final written decision at appendix 23 through 25, the PTAP expressly credits the showing made by petitioners

[00:14:47] Speaker 01:
with regard to exhibits 1004 and 1006 that accompanied the petitions for inter-party review.

[00:14:57] Speaker 00:
Where is that?

[00:14:59] Speaker 00:
I don't see them referring to 1004 and 1006.

[00:15:01] Speaker 01:
Appendix page 23 through 25, Your Honor.

[00:15:06] Speaker 00:
Well, I understand that.

[00:15:08] Speaker 00:
But that's a range of pages.

[00:15:10] Speaker 00:
Yes.

[00:15:10] Speaker 00:
And so could you tell me specifically which page and where?

[00:15:14] Speaker 01:
Yes, I can.

[00:15:15] Speaker 01:
Your Honor, starting on the page beginning appendix 23, onto the top page, appendix 24, quoting from exhibit, it's identified as exhibit 2004, that's a typographical error, it's actually exhibit 1004.

[00:15:32] Speaker 01:
Page three, quote, our new account team will develop an integrated backend commerce system tailored just to your site, so your customers will feel that they've never left your page.

[00:15:44] Speaker 01:
In the following sentence, citing to exhibit 2006, which again is a typographical error.

[00:15:51] Speaker 01:
It's supposed to be exhibit 1006 at page three.

[00:15:55] Speaker 01:
Quote, there's no sensation of being suddenly hustled off to another location.

[00:16:00] Speaker 01:
Your customers won't end up at some foreign looking page where they have to hunt to find your product.

[00:16:05] Speaker 00:
And you think that they made this finding, what sentence are you relying on?

[00:16:09] Speaker 00:
They say petitioner's contention is consistent with the disclosures in the brochure and the November 1997 website.

[00:16:15] Speaker 00:
Is that where you think the finding is?

[00:16:18] Speaker 01:
Yes, Your Honor.

[00:16:18] Speaker 01:
At page appendix 25, after recounting the showing in the petition and citing to the accompanying expert declaration of Dr. Shamos, that is the conclusion we are relying on, Your Honor.

[00:16:40] Speaker 01:
Thank you.

[00:16:44] Speaker 01:
Second, Your Honors, the PTAB final written decision should be affirmed because, contrary to DDR's main argument on appeal, there is no claim construction requiring de novo review.

[00:16:58] Speaker 01:
The PTAB in the proceedings below did not construe the overall appearance claim terms.

[00:17:03] Speaker 01:
No party requested such construction.

[00:17:06] Speaker 01:
In addition, the PTAB's sole determination regarding claim scope, namely that overall appearance does not require an overall match, was correct and is entirely consistent with this Court's prior holding in Hotels 773 F3D 1245, Federal Circuit 2014.

[00:17:29] Speaker 01:
Specifically,

[00:17:30] Speaker 01:
The PTAP correctly determined that claims requiring an overall appearance do not require an overall match because the claims do not recite such language.

[00:17:40] Speaker 01:
And in addition, such a feature is both undefined and unsupported in the asserted patent specification.

[00:17:50] Speaker 01:
Third, Your Honors, to the extent DDR is attempting to raise new claim construction arguments on appeal,

[00:17:57] Speaker 01:
and I take it from Mr. Hoffman's argument just now that there is no such construction that's being offered.

[00:18:03] Speaker 01:
But to the extent the arguments presented in DDR's brief extend into new claim construction arguments made for the first time on appeal, such arguments have been waived.

[00:18:15] Speaker 01:
As Your Honor noted, in the PTAP's institution decisions,

[00:18:19] Speaker 01:
The PTAB expressly invited DDR to offer a claim construction for the overall appearance terms.

[00:18:26] Speaker 01:
DDR declined to do so and should not be permitted to offer a claim construction for the first time on appeal.

[00:18:36] Speaker 01:
Turning back, Your Honors, to my first point, substantial evidence

[00:18:40] Speaker 01:
There were arguments made in the briefs that the petitions did not, in fact, include a showing that the Digital River publications disclosed the overall appearance claim limitations.

[00:18:53] Speaker 01:
Respectfully, that is incorrect, Your Honors.

[00:18:56] Speaker 01:
If we look to the petition at appendix 5576 through 5579,

[00:19:04] Speaker 01:
It, in fact, cites to the same Digital River publication exhibits, exhibits 1004 through 1006 that accompanied the petition and cites to the same functionality that the PTAB ultimately relied on in their final written decisions.

[00:19:23] Speaker 01:
Starting with Appendix 5576, citing to Exhibit 1005,

[00:19:35] Speaker 01:
There is a quote from that Digital River publication.

[00:19:44] Speaker 01:
Quote, a key advantage to a partnership with Digital River is the high level of service offered by the company, including customization of web presentation so that the SSS remains behind the scenes.

[00:20:00] Speaker 01:
turning to Appendix 5577.

[00:20:02] Speaker 01:
Council?

[00:20:03] Speaker 01:
Yes, Your Honor.

[00:20:04] Speaker 00:
Do you agree that the claims in this case do differ from the claims that were at issue in hotels, and that at least these claims expressly call for correspondence between something, between the source page and the original page?

[00:20:22] Speaker 00:
I think I've got that right.

[00:20:23] Speaker 00:
The host page, Your Honor.

[00:20:24] Speaker 00:
But it's requiring correspondence, whereas the claims in hotels did not have

[00:20:28] Speaker 00:
a requirement for matching or correspondence, right?

[00:20:32] Speaker 01:
I agree, Your Honor, that the claims in hotels did not require a match.

[00:20:37] Speaker 01:
I will note that both sets of claims used the word correspond.

[00:20:41] Speaker 01:
And so in the hotel's decision, if we look at claim 17, there were two claims of the 572 patent that were being considered.

[00:20:49] Speaker 01:
It was claims 13 and 17.

[00:20:51] Speaker 01:
If we look at claim 17, Your Honor, it in fact used that correspond language.

[00:20:58] Speaker 01:
The quote from claim 17 of the 572 patent is, quote, a composite web page having a look and feel corresponding to the stored look and feel description of the first website.

[00:21:11] Speaker 01:
So the word correspondence does appear in the prior hotel's decision.

[00:21:14] Speaker 01:
And I respectfully submit, Your Honor, that in substance, there is no difference with regard to the corresponding overall appearance terms from the hotel's decision and in the patents at issue now.

[00:21:26] Speaker 01:
The distinction, if there is to be one, is that in the hotel's case, the word overall appearance came in through the party's stipulated and agreed construction of look and feel.

[00:21:37] Speaker 01:
But when you take that stipulated construction and place it back into the original claim language of the 572 patent, you end up with essentially the phrase, the overall appearance corresponding to the stored overall appearance description of the first website.

[00:21:54] Speaker 01:
Respectfully, there is no substantive difference between the claims on the overall appearance terms that were considered in hotels and that are being considered now.

[00:22:04] Speaker 01:
There's also support for that, Your Honor, in the prosecution history of each of the patents at issue now.

[00:22:12] Speaker 01:
Prior to the issuance of this court's Hotels decision in 2014, DDR, when arguing to the Patent Office what it meant by putting the overall appearance terminology into the claims of the patents we're discussing today, it expressly pointed to the 572 patent and stated that with respect to the 825 patent, and this is that Appendix 4843,

[00:22:35] Speaker 01:
The inclusion of the overall appearance claim language was just meant to clarify that the claims then being considered by the Patent Office had the same scope as the 572 patent, which was ultimately later considered in hotels.

[00:23:01] Speaker 01:
Just to finish my last thought on

[00:23:04] Speaker 01:
substantial evidence, Your Honor.

[00:23:06] Speaker 01:
Looking back to the original petition, again at Appendix 5577, there is again in the petition an express citation to Exhibit 1004, which is one of the Digital River publications, and it states

[00:23:27] Speaker 01:
Quote, an integrated backend commerce system tailored just to your site so your customers will feel that they've never left your page.

[00:23:35] Speaker 01:
And so the important point here, your honor, is that on a plain and ordinary meaning of the overall appearance terms, there really is no distinction between what the Digital River publications talk about in terms of their stated goal of having an appearance likeness between the host page and their composite page.

[00:23:52] Speaker 01:
and what the claim language of the claims in the asserted patent state that's further emphasized by a review of the asserted patent specification, which discusses what it means to have pages that look alike.

[00:24:08] Speaker 01:
And I'm citing to the 876 patent.

[00:24:11] Speaker 01:
It's one of the asserted patents.

[00:24:14] Speaker 01:
It shares the same specification as the other two.

[00:24:17] Speaker 01:
and it states at column 3, lines 32 through 34, quote, such pages give the viewer of the page the impression that she is viewing pages served by the host, end quote.

[00:24:29] Speaker 01:
And so there is parity of disclosure, even if we look to the patent specification as to what these terms mean, not only in their plain and ordinary meaning, but as described in the written description of the patents at issue.

[00:24:45] Speaker 01:
Finally, I would just like to respond to the point made at the start of Mr. Hoffman's argument that the art that was considered by the PTAB below was the same as the art that was considered in the original prosecution.

[00:25:01] Speaker 01:
That, respectfully, is not the case.

[00:25:04] Speaker 01:
If we look to appendix 1137 and 1138, there the patent owner

[00:25:13] Speaker 01:
expressly stated in its patent owner preliminary response that there was a difference between the ARC that was considered by the Patent Office in original prosecution and what was presented in the petitions.

[00:25:25] Speaker 01:
That difference expressly related to certain disclosures in exhibit 1004 and 1006 that I discussed just a few moments ago.

[00:25:34] Speaker 01:
I will say that the

[00:25:37] Speaker 01:
Patent Office did consider quite a bit of Digital River prior art, but all of that consideration was always in the context of the overall system, the Digital River SSS system.

[00:25:52] Speaker 01:
question presented to the PTAB and the petitions was unique.

[00:25:56] Speaker 01:
It related to new subject matter, and it's solely related to what the Digital River publications disclosed, which respectively, as supported by substantial evidence, is that the host web page and the composite web page will have a corresponding overall appearance.

[00:26:14] Speaker 01:
Thank you, Ramerson.

[00:26:17] Speaker 03:
Thank you, Mr. Snell.

[00:26:18] Speaker 03:
Mr. Hoffman has about two and a half minutes.

[00:26:28] Speaker 02:
The first point I'd like to make is there's no PTAB finding about the correspondence of overall appearance between the two pages.

[00:26:41] Speaker 02:
The petition said, with respect to the elements that we're talking about in the claims, that in the digital reverse of pages, there was retrieved data that was retrieved

[00:26:58] Speaker 02:
there was no mention in the petition or argument about correspondence of overall appearance.

[00:27:05] Speaker 02:
There was a citation to the appendix 5969 that was this tailor just to your site so customers would feel like you've never left your page.

[00:27:16] Speaker 02:
But there are many ways to achieve that.

[00:27:18] Speaker 02:
You could, for example,

[00:27:20] Speaker 02:
You could have an overall appearance.

[00:27:22] Speaker 02:
You could have simply certain elements, like the three elements that were found to suffice in the hotel's opinion.

[00:27:32] Speaker 02:
Or you could have simply a statement that this is part of the same site.

[00:27:38] Speaker 02:
It does not necessarily require, and there was no evidence that that shows a correspondence of overall appearance.

[00:27:47] Speaker 02:
The PTAB simply relied on the hotel's decision.

[00:27:51] Speaker 00:
I hear what you're saying.

[00:27:53] Speaker 00:
I'm less persuaded by your argument.

[00:27:56] Speaker 00:
recognizing now that the claims in the hotels actually had correspondence in the claims.

[00:28:02] Speaker 00:
But in any event, even if I agreed with you, I'm having trouble with your argument because, for example, on page age 123, the board says, you know, petitioner contends that this element is met visually corresponding to the web page.

[00:28:19] Speaker 00:
They cite the very claim limitation you're talking about.

[00:28:22] Speaker 00:
And then

[00:28:23] Speaker 00:
they say petitioner relies on this evidence and they identify all of it.

[00:28:27] Speaker 00:
And in doing so, they say petitioner's contention is consistent with the disclosures and the brochure and the website and their citing evidence.

[00:28:36] Speaker 00:
Why isn't that enough to say that they think this evidence supports the petitioner's contention?

[00:28:42] Speaker 02:
The petition must make an argument and it must be contained in the petition.

[00:28:50] Speaker 02:
That's clear law.

[00:28:53] Speaker 02:
You must say in the petition what it is that meets this requirement.

[00:28:59] Speaker 02:
And the board never judged correspondence of overall appearance.

[00:29:07] Speaker 02:
I'd like to respond more fundamentally to your earlier part of your question, Judge Stowell, which

[00:29:12] Speaker 02:
The error is what corresponds.

[00:29:16] Speaker 02:
In the hotel's case, it was not correspondence of overall appearance.

[00:29:21] Speaker 02:
It was correspondence of elements that contributed to overall appearance.

[00:29:25] Speaker 02:
And that's why in the hotel's case, they could take three elements and say, that's enough.

[00:29:31] Speaker 02:
In the face, an overall age- Look at the top of page A123.

[00:29:36] Speaker 00:
Just look at the top of it.

[00:29:38] Speaker 02:
Page which?

[00:29:39] Speaker 00:
A123.

[00:29:41] Speaker 00:
I believe that the board quotes the entire limitation you're talking about.

[00:29:48] Speaker 02:
A123.

[00:29:49] Speaker 02:
Yes.

[00:29:51] Speaker 00:
This is a plurality of visually perceptual elements derived from the retrieved pre-stored data, defining an overall appearance of the composite web page that, excluding the information associated with the commerce object, visually corresponds to the source web page.

[00:30:05] Speaker 00:
That's the entire limitation that the board is discussing.

[00:30:07] Speaker 00:
So I'm having a hard time following your point that the board wasn't

[00:30:11] Speaker 00:
looking at the overall appearance when they actually quoted that part of the claim phrase.

[00:30:16] Speaker 02:
Right.

[00:30:16] Speaker 02:
And what they do is they say that we dispute that.

[00:30:22] Speaker 02:
And it says nothing about correspondence and overall appearance.

[00:30:26] Speaker 02:
And they rebut that.

[00:30:28] Speaker 02:
They say its argument is not persuasive in light of DDRV hotels.

[00:30:39] Speaker 02:
They're quoting the petition and saying exactly what the petition made this argument about common data.

[00:30:45] Speaker 02:
And then the experts say the same thing.

[00:30:48] Speaker 02:
And then cited the one sentence about Taylor just to cite that they never left the page.

[00:30:53] Speaker 02:
And that's insufficient to meet a requirement that there be overall appearance.

[00:30:58] Speaker 02:
And whether the board made that finding or not, there's no substantial evidence or any evidence that there is overall appearance.

[00:31:06] Speaker 02:
What they said is based on hotels.

[00:31:09] Speaker 02:
that it's not required.

[00:31:11] Speaker 02:
But hotels.

[00:31:12] Speaker 03:
Thank you, counsel.

[00:31:13] Speaker 03:
I think we have your response, and you're well over your time.

[00:31:17] Speaker 03:
So we will take the case under submission.