[00:00:00] Speaker 00:
Our next argument today is 20-1916, CROI IP Holdings versus Groupon.

[00:00:07] Speaker 00:
Mr. Waldrop, please proceed.

[00:00:10] Speaker 01:
Good morning, and thank you, Chief Judge Miller and the court.

[00:00:14] Speaker 01:
Now, I would like to talk about two reversible errors related to the claim instructions, errors made by the board that should be reversed.

[00:00:21] Speaker 01:
First, incentive program builder application, and second, receiving a request to validate the award from a sponsor.

[00:00:28] Speaker 01:
As to the board's erroneous claim construction as relates to requests for search for promotions, CROA will rest on the briefing.

[00:00:35] Speaker 01:
We request this court adopt CROA's claim constructions, vacate the board's claim constructions, reverse the board's decisions in the 044 and 061 petitions because they rest on incorrect claim constructions and are not supported by substantial evidence.

[00:00:51] Speaker 01:
Now, it is important to remember what the 660 patent claims.

[00:00:55] Speaker 01:
It claims a three-computer system involving a host computer, a sponsor computer, and a consumer computer that allows a sponsor to build incentive programs with an incentive program builder application at the host.

[00:01:08] Speaker 01:
That application builds incentive programs.

[00:01:12] Speaker 01:
The consumer then selects from a plurality of these sponsor-build incentive programs.

[00:01:17] Speaker 01:
An award is issued to the consumer, and the host receives a request from the sponsor to validate the award, and the award is validated.

[00:01:25] Speaker 01:
Now, as to the 044 Petition and Incentive Program Builder application, the board's claim construction of that term is overbroad because it encompasses applications that only modify parameters of preexisting incentive programs and cannot generate or create or build a new incentive program.

[00:01:43] Speaker 01:
The PTAP's construction construed that term as an application for building incentive programs, which includes both building new programs from scratch and modifying preexisting programs.

[00:01:54] Speaker 01:
The board, however, only cited one part of the specification for supporting this instruction.

[00:01:59] Speaker 02:
Wait, this is Judge Deck.

[00:02:01] Speaker 02:
As I read your brief, you seem to agree that Bill can include both building from scratch and building from a template.

[00:02:14] Speaker 02:
And certainly, the specification seems to suggest that that's the case.

[00:02:19] Speaker 02:
Am I mistaken about what your argument is?

[00:02:25] Speaker 01:
Yes, Your Honor, in the sense that, to be clear, cross-construction encompasses a builder application that functions to modify parameters or existing incentive programs.

[00:02:33] Speaker 01:
So long as the application, though, has the defining characteristics of an incentive program builder application, as recited in the claims, meaning the capability to create, build, generate, or create a new incentive program from scratch.

[00:02:44] Speaker 01:
So it does not exclude the ability to modify pre-existing programs.

[00:02:49] Speaker 02:
Did I answer your question, Your Honor?

[00:02:51] Speaker 02:
You did.

[00:02:52] Speaker 02:
seems to be a problem for you because a build includes these modified applications, then that prior art is encompassed within the claims scope that you yourself argue for.

[00:03:13] Speaker 01:
We do not agree, your honor, because the board's construction is inconsistent with the claim language because there was no finding that any of the prior art via Kelly Stanek or halter Wong has the ability to build from scratch new incentive programs.

[00:03:27] Speaker 01:
In fact, the board rejected Croix's construction, which was an application to generate incentive programs and only applied

[00:03:35] Speaker 01:
the part of the construction that talked about modifying pre-existing programs.

[00:03:39] Speaker 01:
There is no finding in any of the prior art the ability of Kelly, Wong, or Halter to generate new programs.

[00:03:48] Speaker 01:
In fact, any such finding on that basis is not supported by substantial evidence and would require improper hindsight.

[00:03:56] Speaker 01:
There's absolutely no recitation in any of the prior art the ability to build, create, generate new incentive programs.

[00:04:04] Speaker 01:
So even if the court agreed, if this court agreed with the board's construction, there was no application of that construction by both prongs.

[00:04:13] Speaker 01:
The board parsed the construction and only applied it to only the ability to modify, but found no evidence whatsoever, and Groupon doesn't even argue this, that those references created or disclosed the ability to create or generate new incentive programs.

[00:04:30] Speaker 01:
In fact, Your Honor, the construction which the board, the only passage that the board relied upon for its construction of an incentive program, and I'm directing the court to APX 169, column 14, lines 42 to 49.

[00:04:43] Speaker 01:
The passage the board relies on says the sponsor is asked to select among various types of incentive programs.

[00:04:50] Speaker 01:
It does not say that the sponsor selects a preexisting incentive program as the first step in building a new program.

[00:04:57] Speaker 01:
This error was critical to the board's construction of builder application, because it is the only passage that the board relied upon to support its construction that includes a program that can only modify pre-existing programs.

[00:05:09] Speaker 01:
Consistent with our construction, every... Councilman?

[00:05:12] Speaker 01:
Yes, yes, Your Honor.

[00:05:13] Speaker 00:
Councilman, this is Sejmour.

[00:05:15] Speaker 00:
Does your interpretation require the builder application to start from scratch entirely, or does it permit selecting from options?

[00:05:27] Speaker 00:
a program that presents options, and then you select which option you would like to add.

[00:05:34] Speaker 01:
Yes, Your Honor.

[00:05:39] Speaker 01:
And if I can answer your question this way, the patent is clear that the builder allows the user or the sponsor to select different types of programs, like a tournament or a sweepstakes.

[00:05:52] Speaker 01:
You can select a type of program, and then the builder then

[00:05:56] Speaker 01:
assembles the code and generates a new executable program.

[00:05:59] Speaker 01:
The type is not an existing program.

[00:06:01] Speaker 01:
It's like selecting a type of car.

[00:06:03] Speaker 01:
Do you want a compact or a truck?

[00:06:07] Speaker 01:
And it then builds that type.

[00:06:09] Speaker 01:
The pattern makes very clear in the figures 10 and 11 that the first step of building

[00:06:14] Speaker 01:
is different than actually buying a prepackaged game.

[00:06:17] Speaker 01:
And in fact, the specification is very clear that one of the things that the patent was seeking to solve was to solve this issue of having sponsors to actually code games separately and the laborious process of actually coding a game.

[00:06:29] Speaker 01:
Here, there was a tool, the Incentive Program Builder application, that actually builds the code for you and assembles the objective code for the incentive program.

[00:06:38] Speaker 01:
So, yes, Your Honor, if I answered your question.

[00:06:41] Speaker 00:
So I mean, sort of and sort of not.

[00:06:44] Speaker 00:
So just to be clear, a program that allows you to build an incentive program by selecting various already coded options and putting them together in a new way would not suffice in your view to meet this claim limitation.

[00:07:12] Speaker 01:
It would suffice, Your Honor.

[00:07:17] Speaker 01:
Under our construction, Your Honor.

[00:07:22] Speaker 00:
Okay.

[00:07:22] Speaker 00:
Anything further?

[00:07:23] Speaker 01:
Yes, Your Honor.

[00:07:27] Speaker 01:
Now, consistent with CROIS construction, every other specification passage relative to this term distinguishes between obtaining a prepackaged incentive program versus using the builder application to build a new incentive program.

[00:07:39] Speaker 01:
And so the board only relied on one passage, and that passage was incorrect, Your Honor, because nothing in the art discloses taking a program and using an incentive-builder program to generate a new incentive program, Your Honor.

[00:07:54] Speaker 01:
And our construction does not exclude that.

[00:07:57] Speaker 01:
And nothing in the reference is cited by Groupon or a lot upon the board showed any ability to create

[00:08:03] Speaker 01:
and an executable incentive program.

[00:08:05] Speaker 01:
Now, moving on to the request to validate from an award, Your Honor, this was also an Iranian's claim construction that led to an overbroad application and was not supported by substantial evidence.

[00:08:18] Speaker 01:
The board construed receiving a request to validate the award from a sponsor as receiving a request to validate an award that could be sent from anyone, including but not limited to a sponsor.

[00:08:27] Speaker 01:
CROI's construction was receive a request from a sponsor to validate the award.

[00:08:32] Speaker 01:
The sponsor validation claim limitations specify two things.

[00:08:35] Speaker 01:
One, the type of request and who receives and who that request is from.

[00:08:39] Speaker 01:
Claim 101 receiving from the sponsor a request to validate the award.

[00:08:44] Speaker 01:
Once again, a type of request, a request to validate the award and who is that from?

[00:08:49] Speaker 01:
The sponsor.

[00:08:50] Speaker 01:
The board found that claim 101 indicates that the request is from a sponsor.

[00:08:55] Speaker 01:
CROI agrees.

[00:08:56] Speaker 01:
The board then erred in applying the priority claim 101.

[00:09:00] Speaker 01:
It concluded that Chalea disclosed this claim step in 101, but found that Chalea only discloses the request from a consumer to validate the award.

[00:09:09] Speaker 01:
This is clear error under the board's own reading of claim 101.

[00:09:12] Speaker 01:
As our brief details, the board also concluded that Kelly discloses this limitation while failing to cite or analyze any passage from Kelly that actually discloses this.

[00:09:21] Speaker 01:
In fact, Groupon did not even attempt to argue that Kelly discloses this limitation.

[00:09:25] Speaker 01:
It only alleged that Kelly would have made the limitation obvious.

[00:09:29] Speaker 01:
Reversal availability of claim 101 is required for this threshold reason.

[00:09:34] Speaker 01:
Now, claims 7, 1, 7, and 14

[00:09:37] Speaker 01:
which have the language, receiving a request to validate the award from a sponsor.

[00:09:41] Speaker 01:
Once again, the type of request, request to validate an award and who it is from, a sponsor.

[00:09:47] Speaker 01:
The only difference compared to claim 101 is where the word from a sponsor appears.

[00:09:51] Speaker 01:
It's just another way of saying the same thing, Your Honor.

[00:09:54] Speaker 01:
And there's a request to validate the award and the request comes from the sponsor.

[00:09:58] Speaker 01:
Group competitions admitted that claims 17 and 14 describe the same thing as claim 101 in their briefing.

[00:10:05] Speaker 01:
And despite Groupon's admission, the board found that 1-7 and 14 indicate the award is from a sponsor, but the request can be from anyone.

[00:10:14] Speaker 01:
The board reasoned that claims consistently used from to modify the immediately preceding word or phrase.

[00:10:20] Speaker 01:
The board then arbitrarily concluded that from modifies the word award without recognizing that the more sensible approach is that it modifies the preceding phrase.

[00:10:29] Speaker 01:
The board's reading is illogical and contradicts the reading that Groupon gave it in its petition.

[00:10:34] Speaker 01:
And we believe that the claim should be construed consistently, 1-7 and 14.

[00:10:40] Speaker 01:
And at a minimum, Your Honor, claim 101 in validity finding should be reversed.

[00:10:45] Speaker 01:
I reserve the balance of my time for rebuttal, Your Honor.

[00:10:50] Speaker 02:
Say for the 101 issue, if we disagree with you on the build issue, we don't need to reach this from the sponsor question, correct?

[00:11:02] Speaker 02:
Correct.

[00:11:04] Speaker 01:
No, I think you do need to restate, Your Honor.

[00:11:07] Speaker 02:
I thought all of the claims had billed in them.

[00:11:11] Speaker 01:
All of the claims have billed in them, Your Honor.

[00:11:14] Speaker 01:
But as a result of the two petitions, claims 10 and 12 survived in the 061 petition.

[00:11:22] Speaker 01:
And as well, the request from a sponsor, Your Honor, relies on claim 101 in the 061 petition.

[00:11:29] Speaker 01:
Okay.

[00:11:30] Speaker 01:
So you do need to reach the, you do need to reach the request, your valid for the floppy.

[00:11:34] Speaker 00:
Did you steal the 101 on Kelly?

[00:11:38] Speaker 01:
Yes, Your Honor.

[00:11:40] Speaker 01:
That issue was preserved, Your Honor, because Groupon only argued in its petition that it was obvious.

[00:11:46] Speaker 01:
And they conceded by conceding that Kelly did not disclose the request to validate term in Kelly.

[00:11:52] Speaker 01:
The board, however, found that Kelly met this limitation.

[00:11:56] Speaker 01:
So it is a new issue on appeal and one that CORE must be allowed to address since it was not addressed in the petition.

[00:12:02] Speaker 01:
And the board's respondee found that Kelly had that limitation.

[00:12:05] Speaker 00:
But did you appeal it?

[00:12:06] Speaker 00:
Did you actually raise this issue on appeal?

[00:12:08] Speaker 01:
Yes, Your Honor, we did raise this issue on appeal.

[00:12:10] Speaker 01:
Yes, Your Honor, it's in our briefing.

[00:12:11] Speaker 00:
Where?

[00:12:13] Speaker 01:
It's in our briefing, Your Honor, in the original briefing, in our original briefing in pages.

[00:12:20] Speaker 01:
And I'll point the court to the original brief at APX.

[00:12:32] Speaker 02:
You're talking about the Blum brief?

[00:12:33] Speaker 01:
Yes, Your Honor.

[00:12:35] Speaker 02:
What pages?

[00:12:38] Speaker 01:
If you give me a minute, Your Honor, I will direct you to that pages in the brief, Your Honor, where it was raised, Your Honor.

[00:12:45] Speaker 01:
It is raised in pages 54 and 38, Your Honor.

[00:13:00] Speaker 01:
And I can deal with this in rebuttal, Your Honor, but it's raised in our brief, Your Honor.

[00:13:07] Speaker 00:
Well, you can look and inform us on rebuttal, and let's go ahead and hear from opposing counsel.

[00:13:13] Speaker 00:
Mr. Dustin, please proceed.

[00:13:15] Speaker 00:
Mr. Dustin, are you muted?

[00:13:23] Speaker 01:
Do you have any further questions, Your Honor?

[00:13:28] Speaker 00:
No.

[00:13:29] Speaker 00:
Can you hear me?

[00:13:29] Speaker 00:
I said let's hear from Mr. Dustin.

[00:13:32] Speaker 03:
Yes, Your Honor.

[00:13:34] Speaker 03:
I apologize.

[00:13:35] Speaker 03:
Your Honor, are you there?

[00:13:37] Speaker 01:
Your honor, are you there?

[00:13:39] Speaker 00:
Council, we just asked to hear from Mr. Dustin, please.

[00:13:42] Speaker 01:
Oh, I'm sorry.

[00:13:43] Speaker 01:
Thank you.

[00:13:46] Speaker 03:
Thank you, your honor.

[00:13:47] Speaker 03:
May it please the court.

[00:13:49] Speaker 03:
The bulk of Croix's arguments in its briefing concern the evidentiary findings of the board, which are reviewed for substantial evidence.

[00:13:56] Speaker 03:
It is not enough to offer alternative interpretation of the evidence.

[00:14:01] Speaker 03:
The board's interpretation was reasonable.

[00:14:03] Speaker 03:
In fact,

[00:14:04] Speaker 03:
It was the most reasonable, it's not the only reasonable interpretation of the evidence.

[00:14:08] Speaker 03:
The remaining claim construction challenges while reviewed to no vote are premised largely on errors on errors that the wise on arguments and evidence that was not presented to the board in the first instance.

[00:14:22] Speaker 03:
Nevertheless, the board's constructions are consistent with the intrinsic evidence.

[00:14:26] Speaker 03:
Proys are not, and the board did not air and rejecting voice efforts to read additional limitations into its claim.

[00:14:33] Speaker 02:
Could you help me on this question of whether the build issue would take care of this entire case, including claim 101?

[00:14:45] Speaker 02:
Are there issues in the case if we were to agree with you on the build issue?

[00:14:53] Speaker 02:
Are there remaining issues that need to be resolved?

[00:14:57] Speaker 03:
All of the challenge claims would remain invalid if the court

[00:15:02] Speaker 03:
uh, affirms the, uh, decisions on the build issue, whether, whether that is affirmed by affirming the, the board's claim construction on that limitation, or if the, if the, uh, if the court were to, uh, suggest a different limitation, nevertheless, the findings that the board made about how Kelly operates and how Kelly in combination with Stanek on the one hand or Wong on the other would generate, create and build

[00:15:32] Speaker 03:
incentive programs, those descriptions of the way those combinations operate is virtually indistinguishable from the descriptions in the 660 specification concerning the way in which a sponsor would build incentive programs using the patented intention.

[00:15:51] Speaker 03:
So to answer your question, if CROI does not win on build, then all the claims stand as invalidated.

[00:16:02] Speaker 03:
The argument that you just heard from counsel concerning request to validate, he linked that argument to the 044 petition, the Kelly petition.

[00:16:12] Speaker 03:
That argument was not advanced below in respect to Kelly.

[00:16:16] Speaker 03:
There were no arguments made that the Kelly combinations failed to meet the request to validate limitations and the board so found that the request to validate limitations were met.

[00:16:27] Speaker 03:
So this is a new argument on appeal

[00:16:31] Speaker 03:
intended to try to add an argument to prevent the affirmance of the board's decision.

[00:16:37] Speaker 03:
The only decision on 04-4 really is the building application.

[00:16:44] Speaker 03:
Now, the incentive program building application argument concerning claim construction, the court rightly reject or the board rightly rejected the attempts by CROI to insert narrower limitations into this construction.

[00:16:59] Speaker 03:
for three reasons at least.

[00:17:01] Speaker 03:
First of all, this so-called essential element of the invention that Freud's counsel refers to having to do with the ability to build from scratch.

[00:17:10] Speaker 03:
None of that language, no hint of that concept is contained in the claims.

[00:17:16] Speaker 03:
In fact, the claims are addressed to parameters that the sponsor input, parameters that are used to build incentive programs.

[00:17:24] Speaker 03:
None of the parameters described in the claims

[00:17:27] Speaker 03:
would permit the building of an incentive program from scratch.

[00:17:30] Speaker 03:
All of the parameters contemplate that there would be pre-existing code that was associated with each of these defined parameters, parameters that are defined by the host, parameters that are associated by definition with predefined incentive programs that the host has developed.

[00:17:50] Speaker 03:
All that the sponsor has the option to do is to select options

[00:17:54] Speaker 03:
or to provide choices that are already associated with pre-existing code.

[00:18:00] Speaker 03:
The term pre-existing appears only once in the specification in relation to the incentive programs of the invention.

[00:18:08] Speaker 03:
And in fact, where it appears, it appears in connection with the building of incentive programs.

[00:18:14] Speaker 03:
The incentive program builder application is said to develop incentive programs using appropriate code, pre-existing

[00:18:23] Speaker 03:
code that it uses and selects when a sponsor makes a selection of a parameter.

[00:18:32] Speaker 03:
At appendix 178, when a sponsor has selected all parameters, the incentive program builder can build the incentive program that satisfies all of the parameters by combining pre-existing code for each of the individual components into larger files that embody the entire incentive program.

[00:18:50] Speaker 03:
There is no concept in the specification

[00:18:53] Speaker 03:
of the ability to build incentive program from scratch.

[00:18:56] Speaker 03:
It would be antithetical to the purpose of the invention to place that burden of having to develop an incentive program and its associated code from scratch on the sponsor.

[00:19:09] Speaker 03:
That was exactly the purpose for which the patent announces its invention.

[00:19:14] Speaker 03:
In fact, as Judge Moore pointed out in questions to prize counsel,

[00:19:20] Speaker 03:
It is hard for even Croix's Council to draw the line where from scratch begins and ends in the context of the incentive program builder application.

[00:19:30] Speaker 03:
To adopt that language would have rendered the limitation essentially indefinite, Your Honors.

[00:19:37] Speaker 03:
Now, Croix's Council refers to the distinction drawn in the specification between prepackaged incentive programs and built incentive programs, but this

[00:19:47] Speaker 03:
Distinction does not depend on whether or not the content of these programs is pre-existing, whether or not the code has already been written.

[00:19:55] Speaker 03:
The basic difference really only is whether or not the sponsor is purchasing in a center program as is, or whether or not the sponsor has the option to select certain predefined for it, defined by the host, predefined for it options, a select number of options that it can

[00:20:18] Speaker 03:
select which would determine exactly the makeup of the incentive program.

[00:20:22] Speaker 03:
But all of it is pre-existing.

[00:20:25] Speaker 03:
Now, there is a suggestion in the CROIS briefs in their reply, which makes many new arguments not made below and not made in their opening brief, relying on figure 11.

[00:20:38] Speaker 03:
Figure 11 is not a definition of the incentive program builder application draft.

[00:20:45] Speaker 03:
Figure 11 is specifically described as an embodiment by which a sponsor could build an incentive program.

[00:20:54] Speaker 03:
It's merely an example.

[00:20:56] Speaker 03:
It doesn't define this limitation.

[00:20:58] Speaker 03:
Moreover, the suggestion that pre-existing incentive programs, or rather pre-packaged incentive programs, that the builder application has nothing to do

[00:21:14] Speaker 03:
with pre-packaged program, that the specification according to CROI confirms that the incentive program builder application is not used for pre-existing incentive programs.

[00:21:24] Speaker 00:
They leap from that fallacious observation to the notion that bill therefore must mean- Council, this is such more, I'm still struggling to understand what is wrong with the board,

[00:21:42] Speaker 00:
construction, which includes building from scratch and modifying pre-existing programs, so long as we understand modifying to include the check the options and then generate an incentive program based on the options you choose.

[00:21:57] Speaker 00:
That's what Kelly does.

[00:21:59] Speaker 00:
And I guess why I'm confused is I thought, I understand, stood appellant to agree that that would be within his claims scope as well.

[00:22:07] Speaker 00:
So I'm very confused about what the dispute is over claims scope in light of what was presented to me in the oral argument today.

[00:22:16] Speaker 00:
Can you help me understand that?

[00:22:20] Speaker 03:
Your Honor, I'm equally confused, to be perfectly frank with you.

[00:22:24] Speaker 03:
Because that admission that I just heard Mr. Waldrop make

[00:22:27] Speaker 00:
Right.

[00:22:29] Speaker 00:
Am I right, Council, in understanding that Kelly is one of these check the boxes?

[00:22:34] Speaker 00:
Imagine I want to build a car on a website, go to Toyota, and I want to build my car.

[00:22:42] Speaker 00:
I start with which model, and then I check that box, and then I start with, I don't know, the drive system, and I check that box, and then I pick the color, and then I pick the interior.

[00:22:52] Speaker 00:
And at the end, they show me this beautiful picture of my car.

[00:22:56] Speaker 00:
Seems very similar to what Kelly presents in order to allow you to build an incentive system.

[00:23:03] Speaker 00:
Am I right?

[00:23:03] Speaker 00:
I mean, is that your understanding of Kelly as well?

[00:23:06] Speaker 03:
That is my understanding of Kelly, Your Honor, and that was the board's understanding of Kelly.

[00:23:10] Speaker 03:
And I think with that admission from Mr. Waldrop, I think that the dispute over whether or not Kelly in combination with Stanek or Wong teaches an incentive program builder application, that dispute is at an end.

[00:23:24] Speaker 00:
Well, I kind of inclined to agree with you, but I'm sure that he's going to stand up and say something different.

[00:23:31] Speaker 00:
But but I kind of feel like he mooted the disagreement in terms of what he by explaining that his claim construction would in fact include this.

[00:23:42] Speaker 00:
pick options to create your own incentive structure scenario, because whatever his claim construction is, picking options to generate your own program is exactly what Kelly does, right?

[00:23:55] Speaker 03:
That's exactly right, Your Honor.

[00:23:56] Speaker 03:
Kelly describes prize tables, tournament tables.

[00:24:00] Speaker 03:
They describe interfaces that allow the upload of still images and emissions, other graphical content which will customize the display.

[00:24:08] Speaker 03:
of these incentive programs.

[00:24:09] Speaker 03:
Kelly describes joining and combining incentive programs where you play one program in order to become eligible for another.

[00:24:16] Speaker 03:
And these are all selections that are advanced to the sponsor.

[00:24:21] Speaker 03:
And the sponsor is able to build incentive programs based on their particular custom requirements and to have those incentive programs deployed to consumers.

[00:24:31] Speaker 03:
So I think your honor is absolutely right that with that admission, I think the dispute over the 044 is at an end.

[00:24:39] Speaker 03:
Now there was one remaining issue on the 044 that has to do with the object association application.

[00:24:48] Speaker 03:
But again, as we pointed out in our briefs, CROI has only challenged the board's findings under ground two of the 044 petition, but has not challenged the

[00:24:58] Speaker 00:
Council, I just want to clarify one thing.

[00:25:03] Speaker 00:
You have been suggesting that if we agree on this incentive program builder application construction, the case is over.

[00:25:14] Speaker 00:
But that's not right, is it?

[00:25:15] Speaker 00:
I mean, didn't they make a few arguments about whether it's analogous arts or motivation to combine?

[00:25:21] Speaker 00:
Didn't they make a few arguments?

[00:25:24] Speaker 00:
He didn't get to them in his opening today, but in his brief he did.

[00:25:27] Speaker 00:
about the combination of, say, Kelly in view of Stanek and Halter or Kelly in view of Wong.

[00:25:35] Speaker 00:
Didn't he make arguments on those points, too?

[00:25:37] Speaker 00:
So this is not just a matter of if we agree with your claim construction, the case is over, is it?

[00:25:43] Speaker 03:
Well, Your Honor, I think the fact that he did not raise those issues on his argument is an indication of how weak these arguments are.

[00:25:52] Speaker 03:
The board has five pages discussing

[00:25:55] Speaker 03:
the analogousness and the motivations to combine Kelly with these other references.

[00:26:00] Speaker 03:
And those motivations stem from the fact that Kelly is an internet deployed worldwide web gaming system that uses HTML to deliver that content and receives input from sponsors using standard HTML forms, forms that persons of skill in the art would recognize as the type of web forms through which input is made.

[00:26:21] Speaker 03:
And these web pages are generated as Stanek and as Wong both described at the server end by drawing information that's been input by sponsors from databases and using CGI and various other techniques to generate dynamically web pages that are delivered to the consumers.

[00:26:39] Speaker 03:
So Stanek and Wong both describe basically the tools that Kelly is using and Kelly discloses in the delivery of its games.

[00:26:46] Speaker 03:
So the motivation I think is without question.

[00:26:49] Speaker 03:
And the fact that they haven't addressed that on argument suggests to me the weakness that they themselves realized in those arguments.

[00:26:57] Speaker 00:
Your Honor, the only other- Council, argument is short.

[00:27:00] Speaker 00:
And if I hadn't brought it up, you wouldn't have addressed it either.

[00:27:02] Speaker 00:
Should I assume therefore your arguments were equally weak?

[00:27:06] Speaker 03:
Your Honor, that's a good point.

[00:27:07] Speaker 03:
And I concede that fact.

[00:27:10] Speaker 03:
I think that the arguments are fairly well-developed both in the final written decision and in our briefs.

[00:27:17] Speaker 03:
as to exactly why a person of skill in the art would be motivated to combine these two references that speak of the tools used by Kelly and explain their use with the Kelly reference to arrive at the patented invention.

[00:27:32] Speaker 03:
And the fact is that the board also found that Kelly alone has many of these features.

[00:27:37] Speaker 03:
It has the builder application.

[00:27:39] Speaker 03:
It has the interface from which to sponsor input to that information.

[00:27:43] Speaker 03:
It deploys that incentive program to the consumers.

[00:27:47] Speaker 03:
It's not even necessary under the board's constructions for the most part to arrive at a combination between Kelly and standard or Kelly and one only in, in certain respects, uh, would that be necessary?

[00:28:00] Speaker 03:
So in large measure, your honor, I think that boards, uh, uh, decision on Kelly alone would be sufficient.

[00:28:06] Speaker 03:
I wanted to just mention the object association application.

[00:28:10] Speaker 03:
That was one other lingering hanging, uh, cat Chad on this.

[00:28:14] Speaker 03:
But as I said, ground four independently establishes the existence of that limitation in the combination of Kelly and Juan.

[00:28:24] Speaker 03:
And therefore, the fact that Croy has not challenged that ground means that those claims 10 and 12 would stand rejected, even if you were to accept their arguments on ground two, Your Honor.

[00:28:39] Speaker 03:
I see that my time has elapsed.

[00:28:41] Speaker 03:
If the court has any further questions, I know I won't have

[00:28:43] Speaker 03:
not really necessarily to address whatever choice is in its upcoming rebuttal.

[00:28:49] Speaker 00:
Thank you, Mr. Dustin.

[00:28:51] Speaker 00:
Mr. Waldrop, you have rebuttal time.

[00:28:53] Speaker 00:
Please proceed.

[00:28:56] Speaker 01:
Thank you, Your Honor.

[00:28:57] Speaker 01:
First, I want to clarify there was no admission as to Kelly, Your Honor, the way characterized by my opposing counsel.

[00:29:03] Speaker 01:
First, Kelly does not describe the check options in order to build a new program or even a new game.

[00:29:10] Speaker 01:
Kelly takes an existing computer program and allows the operator to only change the prize parameters.

[00:29:16] Speaker 01:
Kelly does not use a template to allow building a new program or even a new game.

[00:29:21] Speaker 01:
Kelly has a tournament system, which is not an incentive program, and without the underlying game that is played during the tournament.

[00:29:31] Speaker 01:
To be clear,

[00:29:32] Speaker 01:
The board made no finding that creating a tournament in Kelly's system is akin to building a new incentive program.

[00:29:39] Speaker 01:
The board found the tournament is a builder application only under its erroneous construction merely because it can modify tournament parameters.

[00:29:48] Speaker 01:
Moreover, even if the court accepted the board's claim construction, the board made no analysis regarding building

[00:29:56] Speaker 01:
an incentive program from scratch.

[00:29:57] Speaker 01:
There's no finding that any of these references could build a new incentive program from scratch.

[00:30:02] Speaker 01:
So even if you accepted the board's claim construction, the board made no finding as to the first prong of its claim construction, and in fact only focused on the modifying pre-existing incentive programs.

[00:30:14] Speaker 01:
Even on its own terms, it would not fit.

[00:30:16] Speaker 01:
I'll stop, Your Honor.

[00:30:17] Speaker 02:
I don't understand what you're saying.

[00:30:18] Speaker 02:
I mean, you say even accepting the board's construction, they didn't make a finding that the

[00:30:24] Speaker 02:
Kelly disclosed building from scratch, but the board's claim construction doesn't require that.

[00:30:29] Speaker 02:
Why would they make such a fine?

[00:30:30] Speaker 02:
Why did they have to make such a fine?

[00:30:32] Speaker 01:
Because they never found that any of the references could build an incentive program from scratch.

[00:30:38] Speaker 01:
There's no reference to that at all in the written decision.

[00:30:42] Speaker 01:
They promulgate a claim construction and make no finding as to whether or not the references can build from scratch, which does not support substantial evidence of validity.

[00:30:52] Speaker 01:
So that is the anomalous thing about this written decision is that there's no mentioning of any of these references having the ability to build from scratch.

[00:31:00] Speaker 01:
That's why cross construction is the most reasonable one because

[00:31:03] Speaker 01:
Look, we just require that the incentive program builder that meets the claims has to be able to build an incentive program from scratch.

[00:31:10] Speaker 01:
It has to be able to generate it.

[00:31:12] Speaker 01:
The board's claim construction of build applications is erroneous because it does not require the fundamental characteristic of being a builder to build a new application from scratch.

[00:31:21] Speaker 01:
It's too broad because it covers tools that can only modify but that can't build.

[00:31:27] Speaker 01:
Now, the court needs to address claim 101 regardless of the builder issue because

[00:31:33] Speaker 01:
Claim 101 has a separate requirement of sponsor request to validate the award.

[00:31:37] Speaker 01:
You had asked where in our briefing that was.

[00:31:39] Speaker 01:
I point the court to the reply brief pages 23 and 24.

[00:31:43] Speaker 01:
We have citations to the original briefing where we raised the validation issue, as I discussed before, which was a new issue on appeal, Your Honor.

[00:31:51] Speaker 00:
All right.

[00:31:52] Speaker 00:
Thank you, counsel.

[00:31:53] Speaker 00:
This case is taken under submission.

[00:31:54] Speaker 01:
Thank you, Your Honor.

[00:31:58] Speaker 01:
Thank you, Your Honor.

[00:32:01] Speaker 00:
The honorable court is adjourned until tomorrow morning at 10 a.m.