[00:00:00] Speaker 03:
Your case this morning is sling TV versus Uniloc 2021 1651

[00:00:30] Speaker 03:
Mr. Williams.

[00:00:36] Speaker 00:
May I remove the mask now?

[00:00:51] Speaker 03:
Yes, please remove.

[00:00:59] Speaker 00:
Thank you.

[00:00:59] Speaker 00:
Police court.

[00:01:00] Speaker 00:
The PTAB here construed the claim such that it does not cover any embodiment of the patent specification, and this is not a case where that highly disfavored approach to claim construction is correct.

[00:01:12] Speaker 00:
Now, the petition in this case construed the claim by reference to the embodiment of the 273 patent and showed that the prior art disclosed the same approach that was taught in that embodiment.

[00:01:22] Speaker 00:
The PTAB apparently either didn't understand that argument or had a problem with it, it's difficult to tell, but we do know that it reached a final writ decision on patentability

[00:01:30] Speaker 00:
based on what has to be an incorrect interpretation of the claims because, again, it would eliminate all embodiments of the patent.

[00:01:40] Speaker 00:
With that in mind, let me talk about the claim construction.

[00:01:48] Speaker 00:
It's undisputed that the only described embodiment of feeds in the patent are RSS feeds.

[00:01:54] Speaker 00:
And we don't take the view that that's, of course, a limitation on the claims.

[00:01:57] Speaker 00:
Our point is that RSS feeds, therefore, must be within the scope of this claim, because there's no other type of feed that is disclosed in the 273 patent.

[00:02:07] Speaker 00:
And it's undisputed that the RSS feed, which is a standard, requires in the feed that there be some metadata in a particular title.

[00:02:16] Speaker 03:
The board felt that you kept on changing your theories and that the theory you were finally

[00:02:23] Speaker 03:
working on was not raised earlier.

[00:02:26] Speaker 00:
Right, and they're clearly wrong about that.

[00:02:29] Speaker 00:
There was no change in the theory at all.

[00:02:31] Speaker 00:
Our claim construction never changed.

[00:02:33] Speaker 00:
The only thing that changed was that there was another district court that construed this claim.

[00:02:39] Speaker 00:
eight or nine months after our petition was filed that construed the claim, we think, incorrectly.

[00:02:44] Speaker 00:
This was not our case.

[00:02:45] Speaker 00:
It was a different district court proceeding where Sling was not a party.

[00:02:48] Speaker 00:
We think the Netflix court construction was wrong.

[00:02:50] Speaker 00:
But it having been put into the record by the patent owner with its patent response, we felt it was not only appropriate, but probably required that we address that claim instruction.

[00:03:01] Speaker 00:
And we pointed out that if the PTAB were to have adopted that

[00:03:05] Speaker 00:
district court claim construction, which is not the one that we were proposing.

[00:03:09] Speaker 00:
The only change that we need to be made is that one of the two theories that we had for invalidity, so we mapped the Lee reference to the claim element, which we called element 1A.

[00:03:19] Speaker 00:
So the element involving the feeds is element 1C.

[00:03:21] Speaker 00:
1A is a different element that requires that you download essentially content from someplace other than a feed.

[00:03:27] Speaker 00:
We said the only change to our theory is that

[00:03:30] Speaker 00:
In our petition, we mapped that element 1A to both Lee's thumbnails, so these are screen grabs from a video or titles of the video.

[00:03:39] Speaker 00:
We said either of those things would satisfy element 1A.

[00:03:42] Speaker 00:
The only thing we did after the Netflix court construction is concede that if the construction were adopted, then titles would no longer satisfy that claim element, and so we would rely solely on the thumbnails, which is what we explicitly map in our petition.

[00:03:58] Speaker 00:
I can point you to that.

[00:04:00] Speaker 00:
In our petition, appendix page 77, you'll see here we're mapping elite element 1a.

[00:04:15] Speaker 00:
In the second full paragraph on that page, we say, lead discloses presentation data that represents content of a first collection of one or more presentations in the form of thumbnails and titles that represent content of the data files.

[00:04:28] Speaker 00:
We say it again on a appendix page 78, where we talk about presentation data being thumbnails.

[00:04:35] Speaker 04:
So you clarified your theory in your reply.

[00:04:44] Speaker 04:
That's when you made the clarification.

[00:04:46] Speaker 00:
Well, it was not a clarification.

[00:04:48] Speaker 00:
It was responding to the new Netflix construction, which we didn't.

[00:04:50] Speaker 00:
I mean, the reply was the next brief after a petition.

[00:04:53] Speaker 04:
So you started your argument with the

[00:04:56] Speaker 04:
a discussion of the RSS feed.

[00:04:58] Speaker 04:
And I think you were laying the groundwork for the clarification that you were going to make later on.

[00:05:06] Speaker 04:
But your problem is at 312.

[00:05:10] Speaker 04:
Correct?

[00:05:12] Speaker 04:
Your problem right now lies in that you did not assert all the grounds in your petition.

[00:05:19] Speaker 00:
No, I don't.

[00:05:20] Speaker 00:
Well, I disagree.

[00:05:21] Speaker 00:
I'm not sure what you mean, Your Honor.

[00:05:24] Speaker 00:
The petition is the petition.

[00:05:25] Speaker 00:
We've never changed the arguments from our petition, other than, again, withdrawing this one aspect of the mapping.

[00:05:31] Speaker 04:
We did have claim construction.

[00:05:32] Speaker 04:
Am I recalling this correctly?

[00:05:34] Speaker 00:
Well, we had a claim construction in the petition.

[00:05:37] Speaker 00:
It appears in terms of that now.

[00:05:41] Speaker 00:
We construed several terms in our petition, many of which are relevant to, I think, the question you're asking.

[00:05:45] Speaker 00:
But let me first start with the element 1C, which starts at page 72.

[00:05:51] Speaker 00:
So this is the claim element that we construed, index page 72, which is the storing feed data limitation.

[00:05:57] Speaker 00:
We provide a construction of it.

[00:05:58] Speaker 00:
We say, storing feed data means encompassing storing data for accessing an RSS feed.

[00:06:04] Speaker 00:
And then we go on to explain this negative limitation, which, admittedly, the negative limitation is a bit odd, because taken literally or read the way that the PTAB is read, it does exclude all embodiments of this.

[00:06:17] Speaker 04:
It's this limitation, this dispositor here.

[00:06:19] Speaker 00:
It's the limitation that

[00:06:21] Speaker 04:
The judgment is based on... Explain why you did not clarify in your petition that data representing content did not include the metadata.

[00:06:30] Speaker 00:
Metadata is not in the claim.

[00:06:32] Speaker 00:
So that's one reason we didn't.

[00:06:34] Speaker 00:
It's not mentioned in the specification either.

[00:06:37] Speaker 00:
What we said is that what this has to mean, this negative limitation, what it has to mean is that you're complying with the RSS standard because that's the only example of this limitation that's described in the specification.

[00:06:51] Speaker 04:
There's nothing else we could have pointed to.

[00:06:54] Speaker 04:
But the RSS data can include and does not necessarily have to include metadata.

[00:07:02] Speaker 00:
No, an RSS feed must include metadata.

[00:07:06] Speaker 00:
That is undisputed.

[00:07:08] Speaker 00:
There is no doubt that every RSS feed that complies with that standard is required

[00:07:13] Speaker 00:
to have metadata.

[00:07:15] Speaker 00:
Assuming what you mean by metadata is title information, right?

[00:07:18] Speaker 00:
Because this is how we were mapped.

[00:07:19] Speaker 00:
What we used in the petition was title.

[00:07:21] Speaker 02:
You couldn't find the content you were looking for if it didn't include metadata.

[00:07:25] Speaker 02:
Can you repeat the question?

[00:07:26] Speaker 02:
You couldn't find the content you were looking for if the feed didn't include metadata.

[00:07:33] Speaker 00:
Without metadata, the feed is essentially meaningless, is what I think Your Honor is getting at.

[00:07:36] Speaker 00:
That's right.

[00:07:37] Speaker 00:
Because the feed needs to tell you what the data is and where to find it.

[00:07:41] Speaker 00:
That's the RSS standard, since here's the title of the thing and here's the link where you go get the video or the podcast, whatever it is.

[00:07:48] Speaker 00:
So that is the RSS feed standard.

[00:07:50] Speaker 00:
That's what the patent requires.

[00:07:51] Speaker 00:
That's the example in the specification.

[00:07:54] Speaker 00:
Every one of those RSS feeds, according to the standard, which we explain in the petition, requires a title to be there.

[00:08:00] Speaker 00:
So if the negative limitation means that any metadata in the RSS standard takes the feed outside the claims, which is what the PTEV said,

[00:08:09] Speaker 00:
then no RSS feed is within the scope of these claims.

[00:08:13] Speaker 00:
Which can't be right, because the investigation tells you that it must be.

[00:08:16] Speaker 00:
That's the only example they give.

[00:08:17] Speaker 00:
So that understanding of the claims has to be wrong, which is the point we made to the PTAB.

[00:08:22] Speaker 00:
That what this claim is getting at, when it says no data in that negative limitation, the limitation there is

[00:08:32] Speaker 00:
No data representing content.

[00:08:34] Speaker 00:
It means literally the content, the bits of the content, the video itself, or the audio podcast itself is not actually in the feed.

[00:08:41] Speaker 00:
And instead, if you look in the feed, you see a description of that podcast and the link where you can go get it.

[00:08:48] Speaker 00:
That has to be what the claim means.

[00:08:49] Speaker 00:
That's the point you made to the PTAB.

[00:08:50] Speaker 00:
We never changed that position.

[00:08:52] Speaker 00:
It was never changed.

[00:08:54] Speaker 00:
So the notion of metadata only came in after the patent owner response, where they pointed to something at Lee, that Lee calls the metadata, which is the title.

[00:09:02] Speaker 04:
They did point to this in the response briefs.

[00:09:05] Speaker 04:
The response briefs don't mention metadata.

[00:09:09] Speaker 00:
The patent owner response brief that the PTAB did, yes.

[00:09:12] Speaker 04:
It did.

[00:09:13] Speaker 00:
Yeah.

[00:09:13] Speaker 00:
Well, they pointed to, they pointed to a very, they went to the specific sentence of Lee that said, Lee has content.

[00:09:19] Speaker 00:
So there's a sentence in Lee that says the feed is the content and patent owner said, aha, see, Lee teaches you that the feed is the content.

[00:09:26] Speaker 00:
And we respond to that argument in a reply and said, look at that, look at that paragraph of Lee.

[00:09:31] Speaker 00:
What it actually says is that there's metadata and there's underlying content.

[00:09:35] Speaker 04:
So again, the response, we should not mention metadata.

[00:09:40] Speaker 00:
Our reply brief?

[00:09:41] Speaker 00:
I know your reply brief.

[00:09:43] Speaker 00:
Yeah, yeah, their brief.

[00:09:45] Speaker 04:
That's where I'm headed.

[00:09:45] Speaker 04:
I mean, this comes up for the first time in your reply brief.

[00:09:49] Speaker 04:
That's your problem.

[00:09:52] Speaker 00:
Well, the notion of metadata comes up after asking why that's the problem.

[00:09:55] Speaker 00:
I mean, my point is our construction doesn't use the word metadata.

[00:09:59] Speaker 04:
Well, your problem is that section 312 requires that a petition state the grounds of unpendability with particularity.

[00:10:07] Speaker 04:
And you brought up a new theory.

[00:10:10] Speaker 00:
in your reply brief uh... okay i think this is where we know you're not we disagree with that the point we were making in the petition was very simple which is we have to interpret this may limitation in view of the specification i couldn't have articulated at the construction that use the word metadata because that's not in the past i mean if i had done that i would have been accused of injecting limitations extraneous limitations into the claim so instead what we said read the actual embodiment of this of this feed

[00:10:39] Speaker 00:
That is an RSS feed.

[00:10:41] Speaker 00:
So therefore, when you find an RSS feed, as in Lee, that has audio-video content, you have found the thing that practices this claim.

[00:10:49] Speaker 00:
So it was a very simple argument that has never once changed.

[00:10:52] Speaker 00:
The notion of metadata only came in because of the specific argument Pat and I made about Lee, and we had to then go into the language of Lee and show exactly what that

[00:11:01] Speaker 00:
disclosure was, and the disclosure of Lee is just titles, which he calls metadata.

[00:11:06] Speaker 00:
Titles is the thing that is the fundamental issue with Lee that they want to point to, that the PTAB said is the problem.

[00:11:11] Speaker 00:
The PTAB says the problem with Lee is that Lee has titles in the feed, and our point has always been, yes, because it's an RSS feed, it has to have titles in the feed, just like there are titles in the feed of the embodiment of the 273 pattern.

[00:11:21] Speaker 00:
So in our view, it is not

[00:11:23] Speaker 00:
a new argument, and it was not raised.

[00:11:26] Speaker 00:
There was no new argument raised or new theory raised the first time in the reply.

[00:11:30] Speaker 00:
The only thing that, again, what the PTAB was bothered by, I think, largely, is the fact that we had to drop one of our reads of Lee on this other element, 1A, and that was only because we had to deal with the possibility that the PTAB would adopt this other district court construction, which we didn't agree was correct.

[00:11:48] Speaker 00:
So what's, where's the abuse of discretion here?

[00:11:52] Speaker 00:
Well, the abuse of discretion, I mean, with respect to what?

[00:11:55] Speaker 00:
I mean, the board, so let's get to the other point, which I think you're asking about.

[00:11:59] Speaker 00:
If the board believed that our petition was flawed, the remedy that the board needed to adopt was to terminate the proceeding or dismiss it and say, we shouldn't have instituted at all.

[00:12:07] Speaker 00:
We made a mistake.

[00:12:08] Speaker 00:
This proceeding should not have been instituted.

[00:12:10] Speaker 00:
It didn't do that.

[00:12:11] Speaker 00:
It issued a final written decision in accordance with 318.

[00:12:14] Speaker 00:
And it did that by construing the claim.

[00:12:16] Speaker 00:
So in our view, the breach of discretion is not even relevant because we have a judgment here based on an incorrect claim construction that eliminates all the embodiments of the specification from the claim.

[00:12:27] Speaker 00:
So that, in our view, is how this case is set up.

[00:12:30] Speaker 00:
If they had tried to terminate, or if this was some sort of punitive final written decision based on its discretion, we think that's an abusive discretion for the reasons are just articulated, because we never once changed our claim construction.

[00:12:44] Speaker 00:
We didn't change our theories midstream.

[00:12:46] Speaker 00:
All we did was withdraw one of the two mappings that were already in the petition.

[00:12:50] Speaker 00:
And we did that in response to a construction that the patent owner put into the record that we didn't have access to at the time of the petition.

[00:12:56] Speaker 00:
So that, in our view, is an abuse of discretion.

[00:12:58] Speaker 00:
Remember, 318 doesn't say that the PTAB could ignore the patentability question in the course of reaching a final written decision.

[00:13:05] Speaker 00:
If it's going to issue a final written decision under 318, the statute requires a patentability decision.

[00:13:11] Speaker 00:
Here, the board gave us a claim construction.

[00:13:14] Speaker 00:
That claim construction is quite simply wrong.

[00:13:17] Speaker 00:
Let me just point that out so it's clear what I'm talking about.

[00:13:29] Speaker 00:
So if we turn to your rebuttal time, Russell.

[00:13:39] Speaker 00:
Give me one more second.

[00:13:40] Speaker 00:
I'll give you the site for that.

[00:13:45] Speaker 00:
Yeah, the board's claim construction and its analysis are at page A24 of the record.

[00:13:50] Speaker 00:
So let me just try to do that very quickly in response to your question, Your Honor.

[00:13:59] Speaker 00:
Here's where it is.

[00:14:00] Speaker 00:
At the bottom of page 24, we get the board's conclusion.

[00:14:05] Speaker 00:
We do not adopt petitioner's clarification of his claim construction position asserting the metadata not qualify.

[00:14:10] Speaker 00:
Thus, because petitioner concedes that Lee's RSS channel discloses metadata along with a link to the content, petitioner is not sufficiently shown the negative limitation.

[00:14:18] Speaker 00:
Again, in our view, this is just mischaracterizing our argument.

[00:14:22] Speaker 00:
We always argue titles are in an RSS feed.

[00:14:25] Speaker 00:
They have to be there.

[00:14:26] Speaker 00:
RSS feeds are within the scope of the claim.

[00:14:27] Speaker 00:
Therefore, titles are not the thing that has to be excluded by the negative limitation.

[00:14:31] Speaker 00:
It's the content itself.

[00:14:34] Speaker 00:
And I'll reserve the remaining time.

[00:14:36] Speaker 03:
Thank you, counsel.

[00:14:38] Speaker 03:
Mr. Cummings.

[00:14:59] Speaker 01:
May it please the court?

[00:15:00] Speaker 02:
I think it would be helpful to review.

[00:15:03] Speaker 02:
Isn't this just kind of a simple look?

[00:15:06] Speaker 02:
I mean, the patent has a feed limitation.

[00:15:08] Speaker 02:
The patent specification makes clear that an RSS feed satisfies the feed limitation.

[00:15:15] Speaker 02:
Lee discloses the use of an RSS feed.

[00:15:18] Speaker 02:
So why doesn't Lee satisfy the feed limitation of the claim under those circumstances?

[00:15:26] Speaker 01:
Well, the problem is that the lead discloses storing a title, and they can see that a title is data that represents the content.

[00:15:40] Speaker 02:
Every RSS feed discloses titles, including the RSS feed mentioned in the patent as the sole embodiment.

[00:15:51] Speaker 02:
RSS feeds include titles.

[00:15:54] Speaker 02:
That's the way they are, right?

[00:15:56] Speaker 01:
But Turner explicitly explains how it can use an RSS feed differently.

[00:16:05] Speaker 02:
What does the patent suggest using an RSS feed without a title?

[00:16:11] Speaker 01:
OK.

[00:16:14] Speaker 01:
Let's turn to the appendix 43.

[00:16:17] Speaker 01:
This is column 11, lines 52 to 54.

[00:16:26] Speaker 01:
Yeah.

[00:16:27] Speaker 01:
So it says the feed may be accessed to acquire information regarding and or either links to or the feed content itself.

[00:16:38] Speaker 01:
The and or and the or there are important to understand the disclosure

[00:16:44] Speaker 02:
That doesn't say that RSS feeds, as contemplated by the patent, don't have titles in them.

[00:16:51] Speaker 02:
Where does it say that?

[00:16:52] Speaker 01:
But what it says is the feed may be accessed to acquire just the information, just the title, or the feed may be accessed to acquire the information, the title, and a link,

[00:17:08] Speaker 01:
Or it can be accessed to acquire the title or the feed content itself.

[00:17:15] Speaker 02:
So it's explaining here how... It doesn't say the RSS feeds don't have titles.

[00:17:23] Speaker 02:
You have to.

[00:17:24] Speaker 02:
And as far as the contention that there was a change in the claim construction, if you look at page 762 of the record, just take a look at that, would you?

[00:17:38] Speaker 02:
This is the decision that initiated the IPOR.

[00:17:47] Speaker 02:
762, yes.

[00:17:49] Speaker 02:
And it says in the first whole paragraph, for purposes of this decision, we are persuaded that a person of ordinary skill and the art would understand Lee to at least suggest using an RSS feed composed solely of a link to an RSS channel, which meets the wear and limitation under our construction.

[00:18:07] Speaker 02:
That's the same argument they're making now.

[00:18:10] Speaker 01:
But the board realized at the hearing

[00:18:14] Speaker 01:
that this statement technologically made no sense.

[00:18:19] Speaker 01:
Because their misunderstanding, just as the patent owner did, because the petition was unclear, the petition had... They're saying the RSS feed satisfies the feed limitation of the patent.

[00:18:34] Speaker 02:
That's what they said in the initiation decision.

[00:18:36] Speaker 02:
That's what they understood the petitioner to be arguing.

[00:18:39] Speaker 02:
They said in the initiation decision, we agree with that.

[00:18:42] Speaker 02:
I don't understand what the change is.

[00:18:44] Speaker 01:
Well, the board went pages expressing its frustration about how the petition had misdirected both the board and the patent owner.

[00:18:59] Speaker 01:
And the very crux of their argument that the data that represents content in 1A has to mean something different than the data representing content in 1D.

[00:19:15] Speaker 01:
And the board started out its decision feeling like it needed to express what happened in the proceedings, because the argument in reality did change every brief.

[00:19:34] Speaker 02:
Why isn't this describing the argument they're making now?

[00:19:37] Speaker 01:
But the board

[00:19:39] Speaker 01:
uh... abandoned this uh... this view in the final written decision because they realized this didn't make sense technically what doesn't make sense about because it if the if the link that there's no feedback uh...

[00:20:11] Speaker 02:
It says to at least suggest using an RSS feed.

[00:20:16] Speaker 01:
But there's a difference between a feed.

[00:20:19] Speaker 02:
It's the wherein limitation under our construction.

[00:20:22] Speaker 01:
The claim limitation requires feed and feed data.

[00:20:29] Speaker 01:
But if you're saying that a pointer, the address of the feed is what they're saying here on 762, then there's no feed data.

[00:20:44] Speaker 01:
But the board was... This is not complicated.

[00:20:49] Speaker 02:
The patent says there has to be a feed.

[00:20:51] Speaker 02:
It says use an RSS feed.

[00:20:53] Speaker 02:
Lee discloses using an RSS feed.

[00:20:57] Speaker 02:
What's complicated about it?

[00:20:58] Speaker 01:
There's nothing complicated about it, but that excludes the disclosure in Turner that says, we're going to use RSS differently.

[00:21:10] Speaker 01:
Because, yeah, we can go out and we can grab it.

[00:21:12] Speaker 02:
I don't see where Turner says using RSS differently.

[00:21:16] Speaker 02:
If that's the crux of your argument, I don't see the nice support for that.

[00:21:20] Speaker 01:
OK, well, where I pointed the court on

[00:21:26] Speaker 01:
uh... column eleven fifty two fifty four uh... we think explains how it can selectively yet use portions of an rss feed and then remember that what turner is doing is it's getting these this information and uh... it's assembling it for uh... for use in its own system uh... it it's replacing an rss

[00:21:55] Speaker 01:
a standard RSS reader.

[00:21:57] Speaker 01:
And so, hey, if we want, we can ignore the title, and we're just going to grab the link to the content, or we're going to use the content itself.

[00:22:12] Speaker 01:
In addition, the board explicitly recognized that the specifications... Where does the specification say that an RSS would feed with titles and it's not within the scope of the claims?

[00:22:28] Speaker 01:
Again, I believe that column 11 explains how to use RSS differently, for example, without a title.

[00:22:37] Speaker 01:
It doesn't specifically mention title because an RSS feed can include other types of information in there.

[00:22:49] Speaker 01:
This is just explaining you can use bits and pieces of the RSS feed and store it within Turner.

[00:22:57] Speaker 01:
You don't have to use everything that you're going out and looking at.

[00:23:04] Speaker 02:
What does it say you can't use an RSS feed with a tile?

[00:23:09] Speaker 02:
You talk about hand doors.

[00:23:11] Speaker 02:
It says the feed.

[00:23:13] Speaker 02:
Using it with a tile.

[00:23:14] Speaker 01:
The feed may be accessed to acquire information or links to the feed content itself.

[00:23:22] Speaker 01:
So both.

[00:23:24] Speaker 01:
So it doesn't have to use the title there.

[00:23:28] Speaker 01:
It can acquire.

[00:23:29] Speaker 02:
Using a title is within the scope of the claim.

[00:23:32] Speaker 02:
Pardon me?

[00:23:33] Speaker 02:
Using a title is within the scope of the claim.

[00:23:37] Speaker 01:
In 1A, yes.

[00:23:40] Speaker 01:
But in 1D, it's not storing data that is

[00:23:53] Speaker 01:
that's related to the content.

[00:23:58] Speaker 01:
But the other point was that the board specifically found that this section of the specification also explicitly notes that it could be an audio feed or a video feed.

[00:24:14] Speaker 01:
It didn't have to be RSS.

[00:24:17] Speaker 01:
It could be.

[00:24:22] Speaker 01:
Right.

[00:24:24] Speaker 01:
So it's not the argument that the petitioner is making that, oh, it has to cover titles because RSS is the only embodiment of this disclosure.

[00:24:39] Speaker 01:
And that's not right.

[00:24:41] Speaker 02:
Do you agree that an RSS feed with titles is within the scope of the claim?

[00:24:47] Speaker 01:
Not with, no, I don't agree with that because the claim says you're storing portions, in this case of an RSS feed, and you're not storing the title in this particular instance.

[00:25:08] Speaker 01:
You can read an RSS feed and then do what you want with it

[00:25:13] Speaker 01:
But the client says you're not going to store certain portions of it, so we're not going to store the title.

[00:25:30] Speaker 01:
But to get back to

[00:25:35] Speaker 01:
that the board recognized that audio and video feeds are another aspect.

[00:25:41] Speaker 01:
And notably, their expert didn't say, hey, I don't understand.

[00:25:47] Speaker 01:
And someone skilled in the art isn't going to understand what an audio feed is or a video feed.

[00:25:53] Speaker 01:
So once again, RSS is not the only embodiment that's expressed here.

[00:25:59] Speaker 02:
But it is an embodiment that is within the scope of the claims.

[00:26:03] Speaker 01:
Pardon me?

[00:26:04] Speaker 02:
It is an embodiment within the scope of the claims.

[00:26:07] Speaker 01:
Audio and video feeds.

[00:26:09] Speaker 01:
RSS.

[00:26:12] Speaker 01:
You can use an RSS feed in a way that is different than a standard RSS feed that is within the scope of the claims.

[00:26:22] Speaker 01:
But not all RSS feeds are necessarily in the scope of the claims.

[00:26:30] Speaker 01:
But in my last few minutes, your honor,

[00:26:36] Speaker 01:
I just want to emphasize that the board did explicitly decide this issue by exercising its discretion to preclude the petitioner from raising later raised arguments.

[00:26:57] Speaker 01:
In the appendix, in the decision on page 13, after going through pages of

[00:27:04] Speaker 01:
explaining how this proceeding rolled out and noting that the reply continued to confuse the issues, calling the petitioner's claim construction oblique and muddled.

[00:27:23] Speaker 01:
The board expressed its frustration with slings vague and ever-shifting positions.

[00:27:32] Speaker 01:
After considering all this,

[00:27:35] Speaker 01:
The board concluded that the patent owner did not have notice and fair opportunity to respond.

[00:27:42] Speaker 01:
And quote, for this reason, we find that petitioner has not demonstrated by a preponderance of the evidence that the claims are unpatentable.

[00:27:53] Speaker 01:
So we do think that the board properly exercised its discretion in overseeing the proceedings

[00:28:03] Speaker 01:
and controlling the proceedings and excluding the petitioners' late arguments.

[00:28:12] Speaker 01:
concede in their briefs that this claim construction difference in the data that represents content in 1A, they argue is different than the data representing content in 1D.

[00:28:32] Speaker 04:
Is this really a case where a new theory has been advanced?

[00:28:38] Speaker 04:
Or is this a situation where the theory was

[00:28:42] Speaker 04:
maintained all along, but just had to be clarified at a later time.

[00:28:46] Speaker 04:
And maybe it's the board that didn't get it right and should have understood what was before it all along.

[00:28:56] Speaker 01:
We agree with the board that everybody was confused.

[00:29:00] Speaker 01:
And it's pretty clear from the board's decision that they were wholly confused by the petition.

[00:29:08] Speaker 02:
But they weren't confused in the first place when they initiated.

[00:29:11] Speaker 02:
They said the argument is the same thing it is now.

[00:29:15] Speaker 01:
I guess I read the final written decision differently.

[00:29:22] Speaker 02:
No, I'm not talking about the final written decision.

[00:29:24] Speaker 02:
I'm talking about the initiation decision.

[00:29:26] Speaker 02:
They describe the theory exactly the same way that it's being articulated now by the petitioner.

[00:29:35] Speaker 02:
There was no confusion.

[00:29:36] Speaker 02:
They say what the theory is, and it's exactly the same as it is now.

[00:29:41] Speaker 01:
The board was very clear that they were confused.

[00:29:48] Speaker 01:
They understood the petitioner was arguing Lee's link to an RSS channel is the claimed feed.

[00:29:59] Speaker 01:
But then it became clear at the hearing that the link to the RSS channel is the feed data.

[00:30:09] Speaker 01:
technically very different.

[00:30:11] Speaker 01:
And the board understood that.

[00:30:15] Speaker 01:
And the RSS channel is the claimed feed, not the link to the RSS channel.

[00:30:23] Speaker 01:
So the board understood that from a technology point of view, what they had said in the institution decision was just technically wrong.

[00:30:37] Speaker 01:
And they chastised Sling for not pointing out in the reply brief that the institution decision had misunderstood what they were arguing.

[00:30:51] Speaker 01:
And they even said that the reply brief continued to confuse the issue.

[00:30:58] Speaker 01:
And it really wasn't until the hearing where Sling's counsel admitted

[00:31:06] Speaker 01:
yeah, we didn't brief this claim construction issue that's central to the case.

[00:31:11] Speaker 01:
So the case did change.

[00:31:14] Speaker 01:
And there was a brief after the hearing that we didn't get to respond to that they raised even new arguments to.

[00:31:26] Speaker 01:
So the board properly exercised its discretion.

[00:31:33] Speaker 01:
and control the proceedings.

[00:31:37] Speaker 03:
Thank you, counsel.

[00:31:38] Speaker 03:
Your time has expired.

[00:31:40] Speaker 03:
Thank you.

[00:31:42] Speaker 03:
Mr. Williams, we'll give you two minutes for a bottle.

[00:31:45] Speaker 00:
Thank you, Your Honor.

[00:31:58] Speaker 00:
Appreciate it.

[00:32:01] Speaker 00:
Let me address the first point, which is the allegation somehow that the specification uses RSS differently in some important way.

[00:32:07] Speaker 00:
That is absolutely unsupported by anything in the record.

[00:32:14] Speaker 00:
The argument that I heard being articulated based on the sentence from column 11 is that in their implementation here, the aggregator is not using the title information in the feed.

[00:32:25] Speaker 00:
Even if that's true, it's entirely irrelevant.

[00:32:26] Speaker 00:
The question is, does the feed contain the title?

[00:32:29] Speaker 00:
The answer is yes, it must.

[00:32:31] Speaker 00:
We know that because it says that it's an RSS feed.

[00:32:34] Speaker 00:
And it's undisputed.

[00:32:35] Speaker 00:
Our experts submitted evidence.

[00:32:36] Speaker 00:
There is no contrary evidence in the record.

[00:32:38] Speaker 00:
They've never disputed that RSS, as a standard, requires title to be in the feed.

[00:32:45] Speaker 00:
And of course, the RSS standard is in the appendix.

[00:32:48] Speaker 00:
So the court can see it for itself at page 725 in the appendix.

[00:32:53] Speaker 00:
The other thing we know for sure is that this patent specification uses RSS 2.0 feeds, which is the standard I just alluded to, as the embodiment that they describe, column 11.

[00:33:05] Speaker 00:
Line 15 says,

[00:33:07] Speaker 00:
Embodiments of the present invention will be discussed with regard to RSS 2.0 feeds.

[00:33:12] Speaker 00:
RSS 2.0 is a standard.

[00:33:15] Speaker 00:
They're not telling you, hey, what we're doing is actually not an RSS feed.

[00:33:18] Speaker 00:
We're taking RSS 2.0 and we're changing it by eliminating titles.

[00:33:22] Speaker 00:
That's essentially the argument that they would have to make for this PTAB construction to be correct.

[00:33:27] Speaker 00:
There's no evidence of that in the record.

[00:33:29] Speaker 00:
All we have is them saying, hey, we're intending to use RSS 2.0 feeds.

[00:33:33] Speaker 00:
We have Lee that teaches the exact same use of RSS 2.0 feeds.

[00:33:37] Speaker 00:
That has been our argument from the inception of this case.

[00:33:40] Speaker 00:
If the board had simply disregarded everything else and decided the case on the petition, which I would be fine with, we would clearly win.

[00:33:46] Speaker 00:
And we should clearly win.

[00:33:48] Speaker 00:
So nothing has changed during the PTEP proceeding that takes away from the fact that we have a very simple disclosure.

[00:33:55] Speaker 00:
We have the identical disclosure in the prior arc.

[00:33:57] Speaker 00:
If these claims cover anything in this patent, which this court's law tells us is the inference we should be drawing, and you need some very strong evidence to conclude that actually the patent claims nothing in the specification, which is the argument that would have to be made here to affirm, you're left with the conclusion one thing.

[00:34:13] Speaker 00:
This claim covers exactly what is inly, which is what we've said from the beginning of this proceeding, and so therefore we encourage the court to overrule the board, reverse its decision, and invalidate these claims.

[00:34:25] Speaker 03:
Thank you, counsel.

[00:34:27] Speaker 03:
The case will be taken under submission.

[00:34:29] Speaker 00:
Thank you.