[00:00:00] Speaker 03:
Appellant is 20-1928 Microsoft Corporation versus FGSRC.

[00:00:07] Speaker 03:
Mr. McAuliffe, is that how you pronounce your name?

[00:00:10] Speaker 02:
It is.

[00:00:11] Speaker 02:
Thank you, Your Honor.

[00:00:12] Speaker 03:
All right.

[00:00:13] Speaker 03:
Good morning.

[00:00:13] Speaker 03:
Please proceed.

[00:00:15] Speaker 02:
Good morning, Your Honors.

[00:00:16] Speaker 02:
May it please the court, Joe McAuliffe for Appellant Microsoft Corporation.

[00:00:21] Speaker 02:
Your Honors, in the proceeding below, the board got a lot right.

[00:00:24] Speaker 02:
In its analysis of Claim 18, however,

[00:00:27] Speaker 02:
It failed to address all of our arguments and erroneously interpreted the selecting content and transmitting content elements of that claim.

[00:00:37] Speaker 02:
Microsoft's petition fairly raised that claim 18 was unpatentable for obviousness over the obelix and skill in combination.

[00:00:47] Speaker 02:
And in particular, with respect to the selecting content and transmitting content steps,

[00:00:52] Speaker 02:
that argued those steps were satisfied for the same reasons as Claims 2 and 3, which include identical claim terms.

[00:01:01] Speaker 04:
It also cited... Council, this is Judge O'Malley.

[00:01:05] Speaker 04:
You have a pretty high hurdle here, don't you?

[00:01:08] Speaker 04:
I mean, we review the board's decisions to the extent that they limit arguments or find certain arguments not to have been presented for an abuse of discretion, don't we?

[00:01:22] Speaker 02:
You do.

[00:01:23] Speaker 02:
The board never made such a finding.

[00:01:25] Speaker 02:
It just never addressed this argument.

[00:01:28] Speaker 02:
Never found that we never made the argument.

[00:01:31] Speaker 04:
It just moved on.

[00:01:32] Speaker 04:
It listed, you know, in detail which arguments were raised by the petition and which were not.

[00:01:40] Speaker 04:
And in two different charts, it made very clear that claim 18 was not presented in connection with Obelix and Skillan together.

[00:01:51] Speaker 02:
It listed what it believes we raised.

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I don't think it listed what we did not raise.

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And I think that's an important distinction.

[00:02:00] Speaker 02:
I think it just overlooked.

[00:02:01] Speaker 03:
Well, maybe it's an important distinction, Mr. McAuliffe.

[00:02:04] Speaker 03:
This is Judge Prost.

[00:02:05] Speaker 03:
But I know you're not compelled to ask for rehearing.

[00:02:11] Speaker 03:
But in a circumstance where you think you absolutely raised something and the board just

[00:02:17] Speaker 03:
missed it or lost the pages or something.

[00:02:21] Speaker 03:
I mean, rehearing is the way to go on that, wouldn't you think, in fairness to your client as well as the other side?

[00:02:27] Speaker 03:
So why pursue the rehearing route?

[00:02:33] Speaker 02:
Your Honor, we thought that the appeal, given that this was not the only issue, and one of them was obviously a claim interpretation, that the appeal route was a better approach.

[00:02:44] Speaker 02:
And I think

[00:02:45] Speaker 02:
My own experience with motions for rehearing at the board is that they don't usually go anywhere and they usually take a lot of time.

[00:02:56] Speaker 02:
And so based on really a balancing of lots of things, we thought that an appeal was the better approach.

[00:03:06] Speaker 04:
Do we even have jurisdiction to review their determination about what

[00:03:11] Speaker 04:
claims they instituted on and what grounds they instituted on?

[00:03:16] Speaker 02:
Yeah, the FRC made that argument.

[00:03:18] Speaker 02:
I think you certainly do have jurisdiction to review whether the board addressed all of the grounds that are raised in the petition.

[00:03:29] Speaker 02:
For example, I mean in SAS, the Supreme Court found

[00:03:33] Speaker 02:
that it was error for the board not to adjust everything in the petition.

[00:03:36] Speaker 02:
They certainly had jurisdiction to make that rule.

[00:03:38] Speaker 04:
Well, that was because the board just said it wasn't going to review certain grounds that it expressly admitted were raised in the petition.

[00:03:47] Speaker 04:
Here, this is the board's determination about what it believes was raised in the petition.

[00:03:53] Speaker 04:
That's very different than SAS.

[00:03:56] Speaker 02:
That's right, but that's still a determination that I think comes within your jurisdiction to review.

[00:04:01] Speaker 02:
This is not an institution decision we're talking about.

[00:04:04] Speaker 02:
It's a final written decision, and we have a right to appeal a final written decision.

[00:04:09] Speaker 02:
And the court obviously has jurisdiction to review it.

[00:04:13] Speaker 03:
Mr. McAuliffe, this is Judge Prost.

[00:04:15] Speaker 03:
I think you can tell from the questioning that this is perhaps a troubling area.

[00:04:20] Speaker 03:
So why don't you move on, I suggest, to your argument on anticipation.

[00:04:26] Speaker 02:
Okay.

[00:04:26] Speaker 02:
I will, Your Honor.

[00:04:27] Speaker 02:
Thank you.

[00:04:28] Speaker 02:
Thank you very much.

[00:04:30] Speaker 02:
The board construed the selecting content and transmitting content elements of Claim 18 at least implicitly to require an in real time for a current user limitation.

[00:04:45] Speaker 02:
And I say at least implicitly because in the portion of their opinion they basically say,

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And I think this is that appendix 31 to 32 that the SRC argued that there's this current user limitation and it's not satisfied because Obelix does things in phases and then they say we agree.

[00:05:03] Speaker 02:
So I think that is an understanding, they're adopting a certain understanding of the claim language, of claims scope.

[00:05:10] Speaker 02:
There's no support in the record for that.

[00:05:13] Speaker 02:
The language of those claim elements say nothing about current users or

[00:05:18] Speaker 02:
or phases of real time.

[00:05:20] Speaker 03:
This is Judge Prost again.

[00:05:22] Speaker 03:
I hate to interrupt, but time is short.

[00:05:24] Speaker 03:
Could you just articulate to me briefly, if we agree with you, and say, one, the board used the current user, and two, that it was incorrect to do so, how does that affect the Obelix anticipation argument?

[00:05:41] Speaker 02:
Well, Obelix satisfies those two claim elements, the entire claim.

[00:05:47] Speaker 02:
in two separate ways.

[00:05:49] Speaker 02:
First of all, it discloses.

[00:05:50] Speaker 02:
What Obelix discloses is that users are given a modified browser that provides user data information to the Obelix server.

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And that's the end data element for the client.

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And that data is used to calculate a user-specific Castleman score.

[00:06:06] Speaker 02:
And then that Castleman score is used when that user runs a search on the Obelix system.

[00:06:11] Speaker 02:
That Castleman score is used to select content search results to send back

[00:06:17] Speaker 02:
to that user.

[00:06:19] Speaker 02:
So what you have there is you have a transmitting end data elements to the obelisk server, selecting content in response to those end data elements because they're part of what gets used to calculate the Castleman score, and then transmitting that selected content back to that user.

[00:06:38] Speaker 02:
That's one way it satisfies it.

[00:06:39] Speaker 02:
It satisfies it in another way through the disclosure of the

[00:06:43] Speaker 02:
university students, the 10 university students example who are testing the system.

[00:06:48] Speaker 02:
In that situation, it's even more specifically satisfied because it's a closed set of 10 students who are all given this modified browser.

[00:06:57] Speaker 02:
So their computers generate and provide this user activity data to the Oberlinck system, which is used to create the Castleman.

[00:07:06] Speaker 04:
Council, what do we do about the fact that claim 18 expressly claims a process of accelerating access time?

[00:07:12] Speaker 04:
of a remote computer to an internet site.

[00:07:15] Speaker 04:
If you're accelerating access time, how can this be done in the kind of phasing that you're talking about, or that OVLEX disposes?

[00:07:23] Speaker 02:
Well, the accelerating access time is only in the preamble, that phrase.

[00:07:27] Speaker 02:
And no one below ever raised an argument about that.

[00:07:30] Speaker 02:
And it's a non-limiting portion.

[00:07:31] Speaker 03:
Well, are you saying that the board assumed that it was not limiting, or that the board simply didn't decide whether or not it was limiting or not?

[00:07:41] Speaker 02:
Now, the board never addressed it because nobody ever raised that below.

[00:07:46] Speaker 02:
We addressed it in the petition and said to the extent it's limiting, OBALIC satisfies it.

[00:07:52] Speaker 02:
And the board did address a similar language in the preamble of Claim 11.

[00:07:57] Speaker 02:
The board addressed that and agreed that OBALIC satisfied it.

[00:08:01] Speaker 02:
But as far as the accelerating access time in Claim 18,

[00:08:05] Speaker 02:
It wasn't addressed below, but it's a non-limiting language in the preamble.

[00:08:11] Speaker 02:
It's never mentioned again or referred to in the claim.

[00:08:14] Speaker 02:
It's not the point of the invention.

[00:08:15] Speaker 02:
Accelerating processing is clearly the point of the invention, and that's done by the use of reconfigurable processors, which nobody disagrees over used, disclosed FPGAs.

[00:08:27] Speaker 02:
So that's a non-limiting element of the claim and I think it's satisfied for the reasons we put in the petition anyway.

[00:08:34] Speaker 02:
But I don't think the court needs to reach that because nobody raised it below and it's non-limiting.

[00:08:41] Speaker 03:
Well, Mr. McAuliffe, can I go back to your answer to my question, which was informative about how you think Obelix satisfies it?

[00:08:49] Speaker 03:
The difficulty I'm having in this, I think you're, I guess you're seeking reversal on the anticipation, but I assume you're also seeking alternatively remand because the kind of issues that you just raised are the kind of issues that the board never reached.

[00:09:07] Speaker 03:
And there are kinds of things that are in there

[00:09:11] Speaker 03:
you know, lanes rather than ours in the first instance.

[00:09:14] Speaker 03:
Is that not right?

[00:09:15] Speaker 03:
I think that's right.

[00:09:16] Speaker 02:
I mean, sure, at a minimum we would ask for remand.

[00:09:21] Speaker 02:
But, you know, the reason we've asked for remand is because the two claim elements, the selecting content and transmitting content that the board found were not satisfied, they did find it satisfied by the, in the context of claims two and three, which have the same claim orders.

[00:09:40] Speaker 02:
In that sense, that's why we're going.

[00:09:42] Speaker 04:
But it's not exactly the same high language.

[00:09:44] Speaker 04:
I mean, the board made clear that it's not the same.

[00:09:47] Speaker 04:
And even when you had Obelix and Skillin, the board found Claim 25 not obvious.

[00:09:52] Speaker 04:
So it obviously sees a distinction between Claim 18 and Claims 3 and 4.

[00:09:57] Speaker 02:
Well, it found Claim 25, I guess you mean not obvious over Obelix and Skillin because Claim 25 depends on Claim 18.

[00:10:10] Speaker 04:
There's lots of different language in claim 18, between claims 3 and 4 and claim 18.

[00:10:19] Speaker 02:
Well, the only language that was ever argued below was the substantially concurrent processing argument, but SRC

[00:10:32] Speaker 02:
argued that along with similar language in claim 11, which means they're parallel processing.

[00:10:37] Speaker 02:
They made the same arguments.

[00:10:38] Speaker 02:
The board addressed it with respect to claim 11, rejected their arguments.

[00:10:43] Speaker 02:
So they have no arguments about that could save claim 18 from an anticipation holding if you reverse this claim interpretation.

[00:10:52] Speaker 02:
There's just nothing.

[00:10:53] Speaker 02:
There's nothing else.

[00:10:53] Speaker 02:
Now, on appeal, they have gone to

[00:10:57] Speaker 02:
the preamble language as, Your Honor, Judge Amali, you mentioned, but they never made that argument below and it's, as I think we pointed out in the briefs and I've alluded to here, we think it's just dead wrong.

[00:11:08] Speaker 02:
It's a non-limiting portion of the preamble and satisfied anyway by Obelix.

[00:11:15] Speaker 02:
Yes?

[00:11:16] Speaker 03:
Before you conclude, just because some of these terms are pretty confusing to me, in the selecting limitation, the words are in response to said N data elements.

[00:11:28] Speaker 03:
Can you explain what exactly the N data elements are in Obelix?

[00:11:34] Speaker 02:
Yes.

[00:11:34] Speaker 02:
In Obelix, the users of the system, so the Obelix server sits basically on the same machine as a web server.

[00:11:43] Speaker 02:
And the users of the system

[00:11:45] Speaker 02:
are provided a modified web browser, Mozilla web browser, that essentially keeps track of what they do on the web, such as visiting certain web pages and copying things and printing things.

[00:11:58] Speaker 02:
And that's called user activity data.

[00:12:01] Speaker 02:
And this modified browser sends that back to the Obelix server for processing.

[00:12:08] Speaker 02:
That user activity data is the end data elements of the claim.

[00:12:13] Speaker 02:
And as far as the selecting content, the content identified in the petition was the web search query result.

[00:12:23] Speaker 02:
So the same user would perform a web search.

[00:12:28] Speaker 02:
The Obelix system would obviously get some query results.

[00:12:32] Speaker 02:
But then it would select how to rank the various results based on this Castleman score that was calculated

[00:12:41] Speaker 02:
based on those end data elements, that user activity data.

[00:12:46] Speaker 02:
So it's selecting a content such as query results, web query results, of the internet site, that's the web, the Obelix site, in response to the said end data elements, that's the user activity data that that user had previously sent into the system.

[00:13:04] Speaker 04:
Council, before you sit down, what do we do with the fact that the specification talks about

[00:13:09] Speaker 04:
users only being willing to wait 20 seconds to get the results.

[00:13:15] Speaker 04:
And what you're basically proposing is a system where one user starts a search and then leaves for another person to receive the results.

[00:13:24] Speaker 04:
I mean, how is that going to happen within a 20-second time interval?

[00:13:30] Speaker 02:
Well, the 20-second time interval, of course, is not mentioned in the Claim 18 or in any claim, really.

[00:13:35] Speaker 02:
And I think it's pretty well settled now just because a certain purpose or desire end result is described in the specification.

[00:13:44] Speaker 04:
I know, but we don't ignore the specification in determining exactly what is being claimed, and we have to look at both.

[00:13:52] Speaker 02:
Absolutely, and nobody ever suggested that that was a limitation of the claim.

[00:13:57] Speaker 02:
in the proceedings below, and there's no basis on this record before this court for reading it in the claim.

[00:14:04] Speaker 02:
Nobody said it's a disclaimer.

[00:14:06] Speaker 02:
Nobody said it's a definition.

[00:14:07] Speaker 02:
Nobody said that it's not the invention unless you get those results under 20 seconds.

[00:14:13] Speaker 02:
That's just not the case.

[00:14:14] Speaker 02:
The point of this invention was to use FPGAs, reconfigurable processing, in a parallel manner to process

[00:14:23] Speaker 02:
data elements that were sent from over the web.

[00:14:26] Speaker 02:
That's exactly what Obelix did two years earlier.

[00:14:29] Speaker 02:
Exactly.

[00:14:32] Speaker 02:
I believe I've used my 12 minutes at least.

[00:14:37] Speaker 03:
Yes, you have.

[00:14:38] Speaker 03:
No, I think you're into your rebuttal time.

[00:14:40] Speaker 03:
Any further questions, Judge O'Malley or Judge Laurie?

[00:14:43] Speaker 00:
No.

[00:14:44] Speaker 03:
So let's move to the other side.

[00:14:48] Speaker 03:
In this case, it's Mr. Kasin again.

[00:14:53] Speaker 01:
May it please the court, Jake Hasen for the Appellee SGSRC.

[00:14:59] Speaker 01:
I'll begin by addressing the first issue.

[00:15:03] Speaker 01:
Microsoft has in fact raised a new theory of invalidation for the first time on appeal.

[00:15:10] Speaker 01:
The board very explicitly noted

[00:15:14] Speaker 01:
in page 60 of the appendix, and I'm quoting here, Microsoft did not challenge independent claim 18 as unpatentable over the combination of Oblix and Skillin.

[00:15:24] Speaker 01:
In fact, a simple review of the petition shows that the only substantive argument that Microsoft made with respect to claim 18 was anticipation by Oblix.

[00:15:34] Speaker 03:
Well, Mr. Kason, let me just interrupt you there.

[00:15:38] Speaker 03:
I think part of the best evidence that Microsoft comes up with to say that they did preserve the argument is that you all responded to the argument in your reply.

[00:15:51] Speaker 03:
So one, am I not understanding the record correctly or did you not respond to the obviousness combination that you're now saying was not presented to the board?

[00:16:04] Speaker 01:
Your Honor, Microsoft cites to Appendix page 449 to say that we responded to the combination of Oblix and Skillin with respect to claim 18.

[00:16:17] Speaker 01:
We did not.

[00:16:18] Speaker 01:
If you simply look at that section, that section was directed to dependent claims and there were a whole bunch of dependent claims and that was starting from Appendix page 447.

[00:16:32] Speaker 01:
There were various combinations for various dependent claims, obliques in combination with Perkins, with Leon, with Curtis, with Davis, with Skilla, and there were a whole series of dependent claims.

[00:16:45] Speaker 01:
We did not address independent claim 18 separately as Microsoft is claiming.

[00:16:53] Speaker 01:
What about the next sentence?

[00:16:55] Speaker 04:
Doesn't the next sentence reference independent claim 18?

[00:17:00] Speaker 01:
I'm sorry, Your Honor, I didn't catch that.

[00:17:04] Speaker 04:
In this section that you're talking about, doesn't the very next sentence reference Independent Claim 18?

[00:17:10] Speaker 01:
It does talk about Claim 18, Your Honor, but the whole focus was on the dependent claims.

[00:17:16] Speaker 03:
What they're claiming is that we... I don't have... Sorry, but just as a follow-up to Judge O'Malley's thing, are we looking at JA449?

[00:17:27] Speaker 01:
Yes, we're looking at Appendix 449 and starting from 447 to 449.

[00:17:34] Speaker 03:
But I think Judge O'Malley and I are possibly looking at the same thing.

[00:17:37] Speaker 03:
We're not in the same room, obviously, but it says petitioner further asserts that the combination of Skillin with Oblex and Spencer renders obvious independent claim 18, blah, blah, blah, blah, blah.

[00:17:51] Speaker 03:
So what are my mistakes?

[00:17:53] Speaker 01:
My only point here is, Your Honor, that we were actually making that statement in the context of addressing the dependent claims, and we were not really specifically addressing the independent Claim 18.

[00:18:07] Speaker 01:
That was my only point there.

[00:18:10] Speaker 04:
Despite your express words, you're saying you didn't mean to address Claim 18?

[00:18:18] Speaker 01:
We didn't address Claim 18.

[00:18:21] Speaker 01:
Your Honor, if you look at those pages, you'll see we were only addressing the dependent claims there.

[00:18:26] Speaker 01:
And we were addressing all the combinations of the prior art there in those pages, 447 to 449.

[00:18:31] Speaker 01:
We weren't really... In any case, we still believe that even if we were to look at Oblix and Skillin, it does not... Even the combination does not render Claim 18 obvious.

[00:18:44] Speaker 01:
And we've explained that in our briefs.

[00:18:48] Speaker 01:
even if this court would find that we, in fact, addressed that, which we did not.

[00:18:55] Speaker 01:
Specifically, Your Honor, Oblix is about an internet search engine.

[00:19:03] Speaker 01:
It is about anticipating the usefulness of a website based on actions taken by past users.

[00:19:12] Speaker 01:
It collects the data from the past users, processes them, and the sum of those overall actions of the past users creates this Castleman score, and that is then stored in a database.

[00:19:24] Speaker 01:
The Oblix system makes clear that latter search algorithms use that data that is stored in the database to determine the usefulness of a website based on past activity.

[00:19:42] Speaker 01:
In contrast, claim 18, which is about accelerating the access time of a remote computer, it is about doing so in real time to improve on that 20 second.

[00:19:55] Speaker 03:
Well, sir, can I ask you because, I mean, you would agree with your friend on the other side that the board never reached the question of whether or not that preamble language is limiting or not limiting.

[00:20:06] Speaker 03:
Now, I think that may be a question of law, so maybe we can reach it up here.

[00:20:10] Speaker 03:
I have to think about that.

[00:20:14] Speaker 03:
Let's assume for a moment that we do not accept that this language is limiting in the preamble.

[00:20:20] Speaker 03:
So without the accelerating access time,

[00:20:23] Speaker 03:
Okay.

[00:20:24] Speaker 03:
What are we left with in the claim language?

[00:20:27] Speaker 01:
What we're left with in the claim language is substantially, concurrently processing the N data elements.

[00:20:34] Speaker 01:
And that is done where the N data elements are processed in one iteration.

[00:20:40] Speaker 01:
That is shown in Figure 14 and instead of using N iterations.

[00:20:44] Speaker 01:
And that is simply not found anywhere in Oblix.

[00:20:49] Speaker 01:
Council claimed that we did not raise that.

[00:20:51] Speaker 01:
Well, on that term, am I wrong?

[00:20:56] Speaker 03:
Microsoft says that substantially concurrently and substantially parallel are the same thing, and that came up in other claims.

[00:21:05] Speaker 03:
Are you saying those two are different?

[00:21:09] Speaker 01:
What we're saying is that substantially concurrently processing the end data elements

[00:21:16] Speaker 01:
in a method claim to reduce the access time and did not come up anywhere else.

[00:21:23] Speaker 01:
And we made that argument, by the way, in appendix page 436, where we say substantially concurrently processing is not shown in Oblix.

[00:21:34] Speaker 01:
Council just said that we did not make that argument.

[00:21:36] Speaker 03:
Well, what about claim 11?

[00:21:38] Speaker 03:
I guess I'm a little confused, because what about claim 11?

[00:21:42] Speaker 03:
I thought Oblix was shown to cover

[00:21:46] Speaker 03:
substantially parallel, so you're saying they're different things?

[00:21:54] Speaker 01:
Your Honor, there is no parallel processing in obliques.

[00:22:01] Speaker 01:
of the N data elements.

[00:22:04] Speaker 01:
What we have is one user after another, and depending on whether the user is printing or browsing or viewing a website, there is a weight given to that user's action, depending on what they were doing.

[00:22:18] Speaker 01:
And then the sum of the overall scores of the user's action is the Castleman score.

[00:22:23] Speaker 01:
There is no substantial parallel processing in obliques whatsoever, and there is no reconfigurable processor in skill-in at all.

[00:22:31] Speaker 01:
So it doesn't even do anything to render these deficiencies.

[00:22:35] Speaker 01:
It doesn't help with any of the deficiencies.

[00:22:40] Speaker 01:
Precisely for the same reason, Your Honor, Claim 3 is not the same as Claim 18 because of the accelerating access time and because of the concurrently, substantially concurrently processing.

[00:22:52] Speaker 04:
What is the response though to your friend on the other side saying that their argument is that Obelix does actually increase processing speed through its architecture?

[00:23:08] Speaker 01:
It may do so by

[00:23:11] Speaker 01:
storing all the past user action data in a database so that it can anticipate the usefulness of a website.

[00:23:20] Speaker 01:
But that is not what is going on here in the 687 pattern.

[00:23:26] Speaker 01:
In 687 pattern, you have these end data elements from a current user who's connected to a remote computer, and you parallel process those end data elements, as shown in figure 14, in one iteration.

[00:23:40] Speaker 01:
And that's where the benefit comes in.

[00:23:43] Speaker 01:
The Council also made a point that the Board implicitly found that there is no real-time limitation and there is no current user limitation.

[00:23:58] Speaker 01:
Well, that is not true.

[00:24:00] Speaker 01:
That determination was made only with respect to Claims 1 and 11.

[00:24:04] Speaker 01:
In fact, with respect to Claim 18, they specifically noted

[00:24:08] Speaker 01:
That even if it's not in real time, it still involved a current user.

[00:24:12] Speaker 01:
It involved the current user because of the way all the steps were set up, including the selecting content.

[00:24:18] Speaker 03:
I guess I want to be clear.

[00:24:19] Speaker 03:
I'm not clear on this is Judge pros.

[00:24:22] Speaker 03:
Are you suggesting that?

[00:24:24] Speaker 03:
Here on appeal, as I understand their argument, they say remote computer, the language in the claim, is not the same thing as current user.

[00:24:35] Speaker 03:
And they're rejecting the phrase current user.

[00:24:37] Speaker 03:
That's what I understand.

[00:24:39] Speaker 03:
Now, are you saying that this is a new argument or that argument is inconsistent with what they said below?

[00:24:45] Speaker 01:
No, what we're saying is, Your Honor, there is

[00:24:50] Speaker 01:
plenty of support for the board's finding that Claim 18 involves a current user and that Oblix, in fact, involves past users.

[00:25:00] Speaker 01:
The board engaged with the expert testimony of both Dr. Stone and Dr. Humayun and accepted the testimony of FGSRC's expert.

[00:25:14] Speaker 01:
If we look at figure 12.

[00:25:16] Speaker 03:
Well, can I ask you about that?

[00:25:18] Speaker 03:
Because I am trying to find my notes here because.

[00:25:22] Speaker 03:
I think I was a little confused by how you characterized that in the brief.

[00:25:31] Speaker 03:
You point to expert testimony, and this is read 33 through 39, and namely that Dr. Hamayon saying the patent works for data for the current user, and you said the board cited both declarations.

[00:25:48] Speaker 03:
But I think the board cited the declarations in summarizing the party's positions and it didn't cite that 166, which you cite in the that you now advance in your brief, at least on pages JA 31 and 32.

[00:26:06] Speaker 03:
where it was discussing this.

[00:26:08] Speaker 03:
So I don't see confirmation for your statement that the board necessarily relied on this explicit portion of Dr. Hamayon's declaration.

[00:26:24] Speaker 01:
Is that clear?

[00:26:27] Speaker 01:
Your Honor, on page 32, they talk about the

[00:26:37] Speaker 01:
declarations of both experts and then they conclude we find the patent owner's arguments to be persuasive.

[00:26:45] Speaker 01:
And that's where they looked, if we looked at the particular paragraphs of both the experts that are being cited, afterwards the board concluded that it accepted the fact that

[00:26:59] Speaker 01:
We have remote computer 302 in figure 12 that is being connected to the internet, and that's the current user.

[00:27:08] Speaker 01:
And the text and structure of claim 18, while not reciting the word current user, talks about a particular session between that remote computer and the website and accelerating.

[00:27:22] Speaker 03:
I'm sorry, I'm very sorry, but you're on 32 now?

[00:27:26] Speaker 01:
This is... So I was providing some explanations, but the specific language is in page 32.

[00:27:38] Speaker 03:
Do they cite that declaration testimony?

[00:27:46] Speaker 01:
Yes.

[00:27:46] Speaker 01:
It's in Exhibit 2095.

[00:27:50] Speaker 01:
Paragraph 178, for instance, and exhibit 2095.

[00:27:57] Speaker 03:
Yeah, but I'm trying to find where in your statement about what the board is concluding.

[00:28:04] Speaker 03:
Where is it there?

[00:28:06] Speaker 01:
So in the first part of page 32, Your Honor, they talk about what the patent owner is arguing, and previously they talk about the petitioner's argument, and then they cite both of them and they say, we find the patent owner's arguments to be persuasive.

[00:28:23] Speaker 01:
So I was just mentioning that they engaged with both the expert testimony and then picked one.

[00:28:30] Speaker 01:
And they found it to be persuasive because of the explanations in paragraph 176 and 178 of exhibit 2095.

[00:28:42] Speaker 00:
Council, is it correct that this patent expired more than three years ago?

[00:28:47] Speaker 01:
Yes, Your Honor, the patent expired, has already expired, yes.

[00:28:52] Speaker 00:
Is it being litigated for damages?

[00:28:58] Speaker 01:
I am not entirely sure of the current status in the district court, but I believe that there is some district court proceedings.

[00:29:13] Speaker 01:
I want to also mention that as far as the preamble goes,

[00:29:18] Speaker 01:
We, contrary to what Microsoft Council, Mr. McAuliffe just mentioned, in pages 413 and 414 in the appendix, we talk about accelerating access time as being important and as the entire focus of this invention.

[00:29:35] Speaker 01:
You see this accelerating access time repeatedly in the patent.

[00:29:40] Speaker 01:
And in fact, in the claim construction section in our Patent Owner Response, we talk about that as well.

[00:29:53] Speaker 01:
I want to also finally mention that the... Do you want to be brief because that was your time limit?

[00:30:12] Speaker 01:
I believe that dependent claims 19 to 25 are also

[00:30:17] Speaker 01:
are clearly patentable because they really rely on claim 18, which is very different from claim 1 and claim 11.

[00:30:24] Speaker 01:
And I'll stop right there.

[00:30:25] Speaker 01:
Thank you.

[00:30:26] Speaker 01:
Thank you.

[00:30:31] Speaker 03:
Thank you.

[00:30:31] Speaker 03:
Mr. McCullough, rebuttal time.

[00:30:33] Speaker 02:
Thank you, Your Honor.

[00:30:35] Speaker 02:
I know I don't have a lot of time.

[00:30:36] Speaker 02:
I know.

[00:30:38] Speaker 03:
And I don't want to take up a lot of it, but just to follow up on Judge Laurie's point, why are we here?

[00:30:43] Speaker 03:
In other words, I think there are, are there related proceedings that have been stayed going on in the district court involving this patent?

[00:30:51] Speaker 02:
Yes, there's a pending district court case in the Western District of Seattle that has stayed in view of the IPRs, including on this patent.

[00:31:03] Speaker 02:
If I may, and I'm happy to answer more questions about the district court litigation, but it's been saved for some time.

[00:31:10] Speaker 02:
But if I may address the substantially concurrent processing, because I think some confusion was just sown, and this was actually resolved below.

[00:31:18] Speaker 02:
The situation is the claim 11, as I think the panel noticed, it recites substantially parallel processing, and claim 18 recites substantially concurrent processing.

[00:31:27] Speaker 02:
SRC treated it

[00:31:30] Speaker 02:
identically below as I believe the petition did and as I believe the board did.

[00:31:34] Speaker 02:
The board resolved that.

[00:31:35] Speaker 02:
If you look at page 30 of the Joint Appendix, JA30, under a heading called Substantially Parallel Processing, it has this statement, Pat Nooner argues that Obelix fails to disclose substantially parallel slash concurrent processing

[00:31:53] Speaker 02:
because Obelisk fails to disclose, and it goes on.

[00:31:56] Speaker 02:
And then on the next page, that section continues to the next page, and it points out that these are the same arguments that are resolved earlier under related to substantial parallel processing, and they disagree with patent owner.

[00:32:09] Speaker 04:
So on that issue- I don't know, counsel.

[00:32:12] Speaker 04:
They actually, but there are different claims.

[00:32:15] Speaker 04:
I mean, the independent claim 18 cannot be identical to the other claims.

[00:32:23] Speaker 04:
because there would be no basis for it to be independent from the other claims.

[00:32:27] Speaker 04:
So what the board was doing was talking about the two concepts with respect to two different sets of claims in their view.

[00:32:38] Speaker 02:
You are undoubtedly correct that they are not word for word identical.

[00:32:43] Speaker 02:
However, I think it's pretty well settled that two differently worded claims can read on the same disclosure in the prior art and be invalidated by it.

[00:32:52] Speaker 02:
And here,

[00:32:53] Speaker 02:
The phrase is substantially parallel processing and substantially current processing.

[00:32:58] Speaker 02:
And what we proved and the board agreed was that the parallel pipelining disclosed in Oblix where the basic units are basically in a pipeline and all processing user activity data at the same time is both substantially parallel processing and substantially current processing.

[00:33:17] Speaker 02:
And my only point is that the board has found that for that part of the claim.

[00:33:21] Speaker 03:
And I, Michael, am I correct that I heard the buzzer go off?

[00:33:27] Speaker 03:
That's correct.

[00:33:28] Speaker 03:
Okay.

[00:33:28] Speaker 03:
Thank you.

[00:33:29] Speaker 03:
Thank you.

[00:33:30] Speaker 03:
Thank you.

[00:33:32] Speaker 03:
We thank both sides and that the case is submitted.