[00:00:11] Speaker 02: We have five cases on our calendar this morning. [00:00:17] Speaker 02: Two from the PTAB, one from the Veterans Court, one from the District Court, one from the Claims Court, the latter being submitted on the briefs and not argued. [00:00:30] Speaker 02: Our first case is Unilock versus Facebook, 2019-2162 and 2160. [00:00:41] Speaker 02: Council, would you pronounce your name for us, please? [00:00:49] Speaker 00: It's Coyote, Your Honor. [00:00:50] Speaker 02: Coyote. [00:00:52] Speaker 02: Please proceed, Mr. Coyote. [00:00:53] Speaker 00: Thank you. [00:00:56] Speaker 00: May it please the court, at the outset, and in view of the Rule 28j letter submitted by the Appellee Cross Appellants, Unilock will withdraw its appeal for claims 27 and 39. [00:01:12] Speaker 00: from this appeal. [00:01:14] Speaker 00: To give you more of a roadmap, Uniloc had also appealed independent claim 38 solely under Arthex. [00:01:22] Speaker 00: But with Uniloc's waiver, which the other side consents to, that claim has been withdrawn as well. [00:01:31] Speaker 02: Which claims are withdrawn? [00:01:33] Speaker 00: The independent claims, Your Honor, are 27, 39, and 38. [00:01:39] Speaker 02: Well, you devoted three quarters of your brief to claim 27, and that has essentially been settled by the decision in the other case, right? [00:01:50] Speaker 00: Yeah, I mean, we're waiving it. [00:01:52] Speaker 00: We aren't putting a label on whether it's issue preclusion or just the reasoning, but we are not contesting it any longer. [00:01:59] Speaker 02: So you are appealing, what, 3, 24, and 39? [00:02:04] Speaker 00: No, 39, we are not appealing, Your Honor. [00:02:08] Speaker 00: That's a dependent claim. [00:02:09] Speaker 00: Off 38, we are not appealing that one. [00:02:11] Speaker 02: 3 and 24, then? [00:02:14] Speaker 00: Yes, Your Honor. [00:02:16] Speaker 00: So let me briefly address those two claims. [00:02:19] Speaker 00: And as your honor noted, it's not the bulk of our briefing, so the issues are fairly concise. [00:02:26] Speaker 00: For claim three, the judge board's judgment should be reversed because the board did not explain why Opposita would have modified Zidni to result in the limitation of claim three. [00:02:38] Speaker 00: Here the board credited Dr. Lavian's testimony, the testimony of the petitioners, [00:02:44] Speaker 00: But neither the board nor Dr. Lobbion addressed RFC 1521 that it doesn't equate the so-called body of the message to an object of the message that used the word fields only in the context of the headers that are distinct from the body of the message. [00:03:00] Speaker 00: So again, the argument's very brief. [00:03:04] Speaker 00: But 1521, on the first two pages, states that there are fields and there are many statements that they describe the distinct message body. [00:03:14] Speaker 00: They don't state the fields include any data. [00:03:16] Speaker 00: So here, Dr. Lobbion's testimony can't constitute a substantial evidence because it conflicts with RFC 1521. [00:03:24] Speaker 00: And that's the argument on Claims 3. [00:03:28] Speaker 00: For claim 24, the board's decision should be reversed because the board failed to explain why it disagreed with Unilox teaching away evidence. [00:03:39] Speaker 00: In particular, Unilock provided evidence that Zigni teaches a way from using HTTP as a transport mechanism. [00:03:48] Speaker 00: We have the testimony of our expert Mr. Eastam that's at 34, Appendix 3462, Paragraph 51, and he testified that Zigni could not have functioned as described because HTTP did not have compression in August 2000, which is the Zigni's filing date. [00:04:06] Speaker 03: and then Sydney itself. [00:04:13] Speaker 03: That we have a situation involving teaching away. [00:04:16] Speaker 00: No, your honor. [00:04:17] Speaker 00: That's not If that was what we were that's not what we were arguing in a brief and that's a good question We aren't arguing just the mere temporal situation. [00:04:26] Speaker 00: It's the fact that Sydney itself expressly states that it's using then existing hardware and then You know, it's it's a teaching away of the specific references of these of this particular case in these particular references it's not we aren't arguing that [00:04:40] Speaker 00: Just because there's a temporal difference in two references, they can't be combined. [00:04:47] Speaker 00: So Zidni, again, Zidni and Stalfett 11. [00:04:51] Speaker 00: This is at appendix 422, column 11, 14 to 16. [00:04:57] Speaker 00: As I just stated, it says it uses data compression of then existing software. [00:05:02] Speaker 00: And even if the board just stated, we have kind of two levels. [00:05:07] Speaker 00: First of all, we presented evidence. [00:05:10] Speaker 00: The board's addressing of this issue was very cursory. [00:05:14] Speaker 00: It just says, well, we disagree with the teaching way. [00:05:16] Speaker 00: It didn't engage in any principled reasoning. [00:05:19] Speaker 00: It didn't even acknowledge that Mr. Eastham had submitted his declaration on this issue. [00:05:25] Speaker 00: So there's two issues. [00:05:27] Speaker 00: There's the issue of, first of all, we think there was substantial evidence to conflict with it. [00:05:31] Speaker 00: And then secondly, it doesn't matter what process. [00:05:33] Speaker 00: They didn't really engage and address this as they're required to do. [00:05:37] Speaker 01: What do you think is the most important, overlooked piece of what you said they didn't tend to? [00:05:47] Speaker 00: I think it's the fact that they didn't, they just, there's a one line where it says they argued teaching away. [00:05:54] Speaker 00: They didn't acknowledge that we had expert testimony for it. [00:05:58] Speaker 00: They didn't acknowledge that expert testimony either. [00:06:01] Speaker 00: So it just was a very cursory, they taught teaching away and then we disagree if you look at the opinion. [00:06:12] Speaker 00: So the board failed to provide an explanation why the evidence would not be an obstacle to motivation to combine. [00:06:17] Speaker 00: Again, just merely stated, it just disagrees. [00:06:20] Speaker 00: Unless the court has questions about the cross-appeal, I will respond to petitioners' arguments on cross-appeal together with my rebuttal. [00:06:28] Speaker 00: But I don't have any more. [00:06:29] Speaker 00: I'll probably reserve the balance unless the court has any questions on the two appeal issues. [00:06:34] Speaker 02: We will reserve the balance for you. [00:06:38] Speaker 02: Thank you. [00:06:38] Speaker 00: Thank you, Your Honors. [00:06:41] Speaker 02: Ms. [00:06:41] Speaker 02: Key. [00:06:54] Speaker 04: Thank you, Your Honors. [00:06:57] Speaker 04: So just so that I make sure that the record is very clear, I understand that only claims 3 and 24 are at issue. [00:07:05] Speaker 04: The only claim I didn't hear described was claim 22. [00:07:07] Speaker 04: I believe that's also been withdrawn. [00:07:09] Speaker 04: Is that correct? [00:07:11] Speaker 02: I understand that. [00:07:12] Speaker 04: Thank you, Your Honors. [00:07:13] Speaker 04: With respect to the first issue, which is that of the object field, [00:07:20] Speaker 04: We strongly believe that there is substantial evidence that supports the board's decision regarding the object field. [00:07:27] Speaker 04: The only argument that I seem to have heard today was that simply RFC 1521 doesn't necessarily describe exactly which field. [00:07:35] Speaker 04: It just uses the word field and that's not enough. [00:07:37] Speaker 04: But that's not what the board relied on. [00:07:39] Speaker 04: The board didn't rely simply on the notion that RFC 1521 used the word field. [00:07:45] Speaker 04: Instead, the board credited Dr. Lavien's detailed explanation of why you would have to have an object field. [00:07:54] Speaker 04: In fact, the board said that it was unrebutted that Dr. Lavien said that one of ordinary skill in the art would find that you had to have an object field in order to understand how to play back the voice data. [00:08:06] Speaker 04: Because otherwise, you wouldn't know where the voice data began and where it ended within the container itself. [00:08:11] Speaker 04: And that was exactly what the board actually relied on. [00:08:15] Speaker 04: citation for that reliance is the unrebutted testimony of Dr. Lavien at paragraphs 141 through 144 of his declaration, which is found at appendix 54. [00:08:32] Speaker 04: And so actually at the very bottom of 54, we credit Dr. Lavien's unrebutted testimony, supported by 1521, in other words, not relying solely on 1521, that when in mime format, [00:08:45] Speaker 04: Zidney's voice container would contain the digitized audio file, i.e. [00:08:50] Speaker 04: the voice data, in an object field, citing to the record itself. [00:08:53] Speaker 04: So we believe that alone is substantial evidence that supports the board's determination. [00:08:59] Speaker 01: With respect to... Can you just clarify for me? [00:09:03] Speaker 01: Absolutely. [00:09:04] Speaker 01: Was that testimony that one would therefore find in Zidney an object field or in RFC 1521 or that [00:09:14] Speaker 01: people or what? [00:09:15] Speaker 04: What that testimony was, was that Zidni itself teaches that one of the things that you would do in order to send your materials is you would use MIME. [00:09:26] Speaker 04: And in using HTTP and MIME, you would then have an object field. [00:09:31] Speaker 04: And so what Dr. Levin is saying is Zidni says, please use MIME, and HTTP is a good way, but use MIME in order to send my data. [00:09:42] Speaker 04: What Dr. Lavien says is, once we use MIME, we have object fields. [00:09:46] Speaker 04: So it's Zidney itself describing what it would use, and then Dr. Lavien saying, by virtue of that explanation, it is obvious that those fields would be included. [00:09:59] Speaker 04: So that is the substantial evidence that supports the record. [00:10:02] Speaker 03: To what extent was that rebutted by the other side? [00:10:05] Speaker 04: It was not, Your Honor. [00:10:06] Speaker 04: And in fact, if you look at the board's [00:10:09] Speaker 04: Determination the board found that that was unrebutted testimony, and that was what I was just reading from at appendix 54 Thank you your honors with respect to claim 24 This is the notion of a connection object that must be found and the connection object [00:10:31] Speaker 04: is essentially how you're going to make sure that each system knows what each other's system is doing. [00:10:37] Speaker 04: The only argument that we have heard is that it's the combination itself that somehow there's a teaching away from the combination, not that the combination does not include the elements. [00:10:47] Speaker 04: And the argument regarding the combination doing some form of teaching away seems to be that because data compression is required, you wouldn't use HTTP. [00:10:57] Speaker 04: But that's absolutely not supported by the record at all. [00:11:01] Speaker 04: What we point out, both in our response here, but also in our petition and our reply down below, is that Zidni itself actually requires no form of compression whatsoever. [00:11:15] Speaker 04: There is nothing requiring compression. [00:11:18] Speaker 04: Zidni says, if you're going to compress, go ahead and use whatever local hardware or software you have. [00:11:25] Speaker 04: That just means if you've got something you want compressed, figure out what you want to do with it down below. [00:11:30] Speaker 04: Then once that exists as a bundle, you need to figure out how to send it somewhere. [00:11:36] Speaker 04: And HTTP is a normal way to send it because you're using TCP in Zidni. [00:11:41] Speaker 04: Zidni is very clear about that. [00:11:43] Speaker 04: Zidni also says HTTP would be a logical thing to use because [00:11:48] Speaker 04: It is independent of all of the other systems, so you can send whatever you want through HTTP. [00:11:54] Speaker 04: Therefore, the compression is actually irrelevant. [00:11:57] Speaker 04: The compression has nothing to do with anything. [00:12:00] Speaker 04: And what the board found was that it credited Dr. Lavien's discussion and description of the fact that the combination is simply saying, take any message that you're going to use, put it in HTTP, and then send it, and that would be the reason for the combination. [00:12:17] Speaker 04: And that's what the board found. [00:12:19] Speaker 04: The fact that the board rejected the arguments does not mean that the board did not do a substantial dive into the evidence. [00:12:25] Speaker 04: In fact, they credited the fact that the argument was made, and then they simply said, we disagree. [00:12:31] Speaker 04: And they used Dr. Lavien's explanation of how all of these things would work together as their substantial evidence of why the combination would, in fact, be proper. [00:12:41] Speaker 04: And that language, Your Honor, can be found [00:12:45] Speaker 04: for example, in the final written decision at appendix 103 through 108. [00:12:51] Speaker 04: But the other evidence that the board had in front of it comes from 2882 through 2883, where we talk about the fact that the compression is, in fact, irrelevant. [00:13:03] Speaker 04: And that was part of the record before the board as well. [00:13:05] Speaker 04: So that also supports the substantial evidence. [00:13:07] Speaker 02: You want to deal with the cross appeal? [00:13:09] Speaker 04: I'd like to, Your Honor. [00:13:09] Speaker 04: Thank you very much. [00:13:11] Speaker 04: So the cross appeal, Your Honor, is actually quite simple. [00:13:14] Speaker 04: The notion here is that throughout the petition and the reply, we made very careful to note that the IVM was no longer simply the container. [00:13:29] Speaker 04: So the incident voice message for claims four and five was not the simple container of Zidni. [00:13:36] Speaker 04: Because we acknowledge that the simple container of Zidni did not have the fields like the action field required by dependent claims four and five. [00:13:44] Speaker 04: Instead, we look to see, is there something else that would transform that message into an instant voice message that did have the field? [00:13:52] Speaker 01: Just to be clear, what you're saying is that consistently in the petition, I'm not sure what consistently is doing there, for claim for. [00:14:01] Speaker 01: That's correct. [00:14:02] Speaker 01: You said that the instant voice message includes more than the Zidney piece. [00:14:09] Speaker 01: That's correct, Your Honor. [00:14:10] Speaker 01: That's absolutely correct. [00:14:11] Speaker 01: And I gather that sort of the [00:14:14] Speaker 01: The gist of this is that since for everything else that you were challenging, you didn't do that. [00:14:20] Speaker 01: You did actually equate the Sydney piece to this. [00:14:25] Speaker 01: You had to be clearer than you were on page, what is it, 38 of the petition or something, to make it apparent to the board that you were actually suddenly doing a different mapping. [00:14:40] Speaker 01: That's correct. [00:14:41] Speaker 01: This isn't clear enough. [00:14:42] Speaker 01: I think that's the theory. [00:14:43] Speaker 04: That is the theory here, Your Honor. [00:14:45] Speaker 04: So we actually believe that the petition itself was clear, and that's at Appendix 2675, where we say that the combination would have resulted in the voice container being carried in an HTTP message. [00:15:00] Speaker 04: that includes the action field. [00:15:01] Speaker 04: That then becomes the instant voice message. [00:15:03] Speaker 04: When we saw the opposition, we realized that maybe it hadn't been as clear because it was misinterpreted by patent owner. [00:15:13] Speaker 04: And patent owner said, but you wouldn't make that combination because you wouldn't stick the action field into the container. [00:15:19] Speaker 04: And so what we did in the reply is we came out very clearly and said, [00:15:24] Speaker 04: that the patent owner's argument misstates the actual combination. [00:15:29] Speaker 04: And we acknowledge that we were not placing the action field into the container, but instead we were placing the container into a larger message that then itself becomes the instant voice message. [00:15:41] Speaker 04: And the way that the final written decision tracks, it actually acknowledges that these things happen. [00:15:47] Speaker 04: It says, and then they clarified, [00:15:50] Speaker 04: that they were making the combination with the HTTP message, which includes the POST command, which would then be the action field. [00:15:57] Speaker 04: But then, with no explanation whatsoever, the FWD reverts back and says, but since the voice container doesn't include the field and you admit that, I find there's nothing there. [00:16:11] Speaker 04: Well, Your Honor, as a simple matter of logic, if we were relying solely on the container [00:16:17] Speaker 04: We've already admitted that the container doesn't have the action field. [00:16:20] Speaker 04: So why did we spend pages and pages of an obviousness combination explaining that we now have a new message that contains the container as the object, as the transported message with the rest of the headers? [00:16:37] Speaker 04: And so we did make that exceedingly clear in Appendix 2875, [00:16:44] Speaker 04: where we explain why we're doing the combination so that you have the container of Zidni as the payload of the HTTP message. [00:16:53] Speaker 04: And now that message is the instant voice message. [00:16:57] Speaker 04: We wrap up the whole discussion with a sentence that says, the Zidni voice container, which itself is transported as the payload of an HTTP message that discloses the claimed instant voice message. [00:17:10] Speaker 04: So we're saying that's now what we're calling the instant voice message. [00:17:15] Speaker 01: What was the passage that you were just reading? [00:17:18] Speaker 04: It's the very end of 2875. [00:17:20] Speaker 04: It's the sentence that begins, therefore. [00:17:24] Speaker 04: Therefore, the Sydney voice container [00:17:28] Speaker 04: Now we have a positive transported as the payload of an HTTP message disclosing. [00:17:35] Speaker 01: This is in the reply. [00:17:37] Speaker 04: This is in the reply. [00:17:38] Speaker 04: That's correct. [00:17:39] Speaker 04: And so again, we're clarifying in the reply what we already said. [00:17:41] Speaker 04: We said, we just want to make sure that you understand that when we were talking about using the post message, [00:17:47] Speaker 04: it was as the instant voice message. [00:17:50] Speaker 04: We again believe that that was clear in the petition. [00:17:53] Speaker 01: There's a fair bit of law trying to be somewhat clearer about an inherently [00:18:04] Speaker 01: Unclear standard about just how clear you need to be in the petition you get to don't get to revise things in the reply Conceding that they were accepting for a moment that the that the reply is really quite clear It seems to me this comes down to whether the petition was clear enough It's a little [00:18:24] Speaker 01: I'm not quite sure what to make of an argument that says the petition must have been saying this because otherwise we would have dropped the ball, which is not quite... Well, I'd love to say that that's not exactly what I'm saying, Your Honor, but... [00:18:39] Speaker 01: It's not the clearest distinction in the world for me between what you did say and what I just... And I understand that, Your Honor, but we didn't drop the ball. [00:18:47] Speaker 01: What the petition says... And this is a matter... We do judge this under an abuse of discretion standard, right? [00:18:52] Speaker 04: That's correct, Your Honor. [00:18:52] Speaker 04: And so it's whether or not there is substantial evidence to support the board's finding. [00:18:56] Speaker 04: And our argument here, Your Honor, is there can't be substantial evidence because [00:19:00] Speaker 04: what the board did contradicts the evidence in the record. [00:19:03] Speaker 04: The board said we are only using the container as the instant voice message, but the evidence in the record contradicts using the voice container as the instant voice message, because in the petition itself, when we talk about the combination, and this is in the petition at appendix 2675, which cites Tulavian at appendix 359 and 360, the petition says, [00:19:29] Speaker 04: that when you combine Zidni with Hefman with no other changes in their respective functions, that would have resulted in the voice container being carried in an HTTP message that includes the action field. [00:19:44] Speaker 04: So we've changed the message. [00:19:46] Speaker 04: The message is the HTTP message. [00:19:48] Speaker 04: It is not the container. [00:19:49] Speaker 04: And that was clear. [00:19:51] Speaker 04: And Lavian's expert declaration describes why that is a good thing to do, because now the message that's being transported is that HTTP message. [00:20:01] Speaker 04: Then all we did was clarify that in the reply. [00:20:03] Speaker 04: So the reason that substantial evidence cannot support the board's finding is because the evidence contradicts using just the container as the instant voice message. [00:20:15] Speaker 02: Thank you. [00:20:15] Speaker 02: We will give you two minutes back for rebuttal. [00:20:18] Speaker 04: I appreciate it, Your Honors. [00:20:19] Speaker 04: Thank you very much for your attention and time. [00:20:21] Speaker 02: Mr. Coyde. [00:20:32] Speaker 00: Thank you, Your Honor. [00:20:32] Speaker 00: Let me clean up the record a little about the claims. [00:20:35] Speaker 00: The one thing I would say about claim 22, which was asked, Your Honor recall that claim 22 has the same language as claim 39. [00:20:44] Speaker 00: They're both dependent claims. [00:20:47] Speaker 00: And so we've linked those in our briefs. [00:20:48] Speaker 00: So we are waiving the [00:20:50] Speaker 00: arguments for the added claim language of 22. [00:20:54] Speaker 00: But claim 22 depends on claim 3. [00:20:57] Speaker 00: And as I noted earlier, that's an independent claim that we are still seeking reversal on. [00:21:03] Speaker 00: So we are not totally walking away from claim 22. [00:21:06] Speaker 00: We are conceding the issues that were identified in the briefing as related to 22 and 39, if that's clear. [00:21:15] Speaker 00: But I just wanted to make that clear. [00:21:17] Speaker 00: Let me turn first to the cross appeal. [00:21:21] Speaker 00: I was kind of new to this case. [00:21:22] Speaker 00: And so in getting to speed, I think one thing which I'm sure Your Honor has appreciated, but it's one of the flag, is what's important in reading this record is, you know, there are two final written decisions. [00:21:34] Speaker 00: In the final written decision where claim four is addressed, the claim three was not challenged, and that's IPR 1688. [00:21:43] Speaker 00: It was not challenged. [00:21:44] Speaker 00: Only claims 4, 5, and 12 were challenged, or at least in this discussion relevant to germate of this issue. [00:21:51] Speaker 00: So that is key, Your Honor, because [00:21:55] Speaker 00: The discussion of claim three, I mean, in certain instances in these IPRs where you might have a base discussion of an independent claim, that's then used for a ground. [00:22:06] Speaker 00: And then in the dependent claim, they say, OK, well, we're going to do an alternate tweak on that. [00:22:11] Speaker 00: We're going to change the theory on it. [00:22:14] Speaker 00: But here, that's not the case. [00:22:15] Speaker 00: The only reason. [00:22:17] Speaker 00: Claim 3 was introduced and discussed, was in their very own words, to provide a foundation for analyzing the obvious of claims 4, 5, and 12. [00:22:27] Speaker 00: And then, that's that appendix 2655. [00:22:32] Speaker 00: And then in Appendix 2668, there's a discussion in Claim 3 when they kind of flesh it out. [00:22:40] Speaker 00: And it sounds undisputed from the other side that Zidney expressly shows a voice container in InstaMessage, at least in the context of Claim 3. [00:22:50] Speaker 00: I think that part, the parties can agree on. [00:22:55] Speaker 00: The board then applied this and also looking at other things and then said, reading it, that petitioner consistently relies on Zidney's voice container as being the instant voice message of claim three, from which claim four depends. [00:23:08] Speaker 00: So it's a natural reading. [00:23:11] Speaker 00: Your honors mentioned the abuse of discretion standard, which we agree. [00:23:14] Speaker 00: This is something that the board is adept at determining. [00:23:19] Speaker 00: We might sometimes dispute [00:23:20] Speaker 00: as patent owner of the outcome, but they're adept at understanding what was pleaded. [00:23:26] Speaker 00: Judge Taranto, you mentioned the scope of the petition. [00:23:29] Speaker 00: I think that's also a key concept here. [00:23:33] Speaker 00: It shouldn't be that even if there is any ambiguity, and I appreciate Ms. [00:23:41] Speaker 00: Keefe's candor, that acknowledgement saying that [00:23:44] Speaker 00: The petition might have been less than clear. [00:23:46] Speaker 00: But it shouldn't be an Easter egg. [00:23:49] Speaker 00: It shouldn't be where it's like a gotcha, where something's buried in it, where they go down one theory, and then we get surprised by something buried in it that we're not interpreting the way that they've said. [00:23:59] Speaker 00: The other thing we pointed out, too, is they do not. [00:24:01] Speaker 01: Can you explain how does the material on, I guess it's really 2675, which is principally at issue, [00:24:12] Speaker 01: How do you make sense of that as an effort to show this new element independent claim for if the instant voice message is still just the container? [00:24:33] Speaker 00: Well, in that section, we read it as a parallelism between first it says Zidney. [00:24:40] Speaker 00: The right thing. [00:24:44] Speaker 00: Uh, yeah, in 2675, it's- it talks about Zidni, uh, kind of first talking about- it wouldn't talk- Zidni with no change of their respective functions predictably resulting in the voice container of Zidni being transmitted. [00:24:57] Speaker 00: And then, uh, so it- it talks about the instant voicemail message and then later talks about the voice container. [00:25:03] Speaker 00: So we see it as a parallelism and it's supporting us. [00:25:05] Speaker 00: I mean, both sides are- are [00:25:06] Speaker 00: are cited in the same language. [00:25:08] Speaker 01: It's really, I think, the next sentence that's the crucial disintern would have resulted in the voice container being carried in a HTTP 1.1 message that includes an action field, namely the post method described above. [00:25:24] Speaker 00: Your Honor, respectfully, we read that as the voice container, as the instant voice message, again, equating it to before the instant voice message. [00:25:34] Speaker 00: Again, it's the context also. [00:25:35] Speaker 00: We read it in the context of Claim 3, where they provide a predicate for it. [00:25:39] Speaker 00: So if they were going to go down this route, why did they choose, you know, claim three wasn't even a challenge claim in this IPR. [00:25:47] Speaker 00: Why did they even explain it that way? [00:25:48] Speaker 00: It's the most, I'm not being critical, but it's just a very, their explanation just doesn't make sense. [00:25:55] Speaker 00: That's not the way you would have approached it. [00:25:57] Speaker 00: If I was drafting it on the other side, I would have, [00:26:00] Speaker 00: built this into the discussion of claim three, and then you wouldn't have to do that. [00:26:05] Speaker 00: Or, as we noted in our briefs, they could say, hey, we're going to do something alternative here. [00:26:11] Speaker 00: This is an alternative read, and they didn't do that. [00:26:13] Speaker 01: And you don't suggest that their alternative read of claim four somehow is inconsistent with what they previously attributed to claim three. [00:26:27] Speaker 01: before being a dependent claim. [00:26:28] Speaker 00: No, Your Honor. [00:26:29] Speaker 00: I think it's more the issue you touched upon. [00:26:31] Speaker 00: It's just that there could be two different versions. [00:26:35] Speaker 00: There could. [00:26:36] Speaker 00: In theory, I think it's the issue Your Honor touched upon in that we're entitled as patent owner, given the confines and the case law on IPRs, to have something bounded by the petition. [00:26:49] Speaker 00: And the board [00:26:52] Speaker 00: interpreted what they're now admitting as a less than clear petition a certain way, and that's how we interpreted it. [00:26:57] Speaker 00: So it can't be something where we're, it's tough enough as patent owners, given the sequence of briefing, there's limited opportunities to respond. [00:27:05] Speaker 00: You can't have something at the outset. [00:27:07] Speaker 01: Well, it's kind of tough all over, right? [00:27:09] Speaker 00: It is. [00:27:09] Speaker 00: I tend to represent the patent owner more, but I mean, it's very, maybe I'll just say it's very compact. [00:27:15] Speaker 00: It's not very different than district court, as you're aware. [00:27:18] Speaker 00: allow more rounds of briefing and you can revisit things. [00:27:22] Speaker 00: It's very concise. [00:27:23] Speaker 00: And that's why I think the concept that Your Honor mentioned about being bounded by the petition is very key. [00:27:31] Speaker 01: Can I ask you this? [00:27:32] Speaker 01: If we were to conclude that the board misread the passage in the petition and that the petition does, in fact, [00:27:41] Speaker 01: fairly assert that claim for the instant voice message includes the entire HTTP message, including both the data field and what comes before. [00:27:57] Speaker 01: Is that an outright reversal? [00:27:59] Speaker 01: Is there something to remand, or what? [00:28:03] Speaker 00: I haven't thought about that, Your Honor. [00:28:04] Speaker 00: We haven't briefed anything other than the issue that we just discussed. [00:28:14] Speaker 00: OK. [00:28:15] Speaker 00: I haven't considered it. [00:28:16] Speaker 00: I certainly could see a remand. [00:28:19] Speaker 01: Are there other issues? [00:28:22] Speaker 00: I can't think of any sitting here today, Your Honor, but. [00:28:25] Speaker 01: Other issues not dependent on the dispute about claim 24? [00:28:27] Speaker 00: No, I'm not aware of anything with respect to this, with respect to claim four for the cross-appeal. [00:28:35] Speaker 00: OK. [00:28:35] Speaker 00: But I just haven't considered it fully, so I don't want him to speak. [00:28:42] Speaker 00: Let's see. [00:28:43] Speaker 00: The other thing is, I think for that I'll just rest in our briefs. [00:28:47] Speaker 00: We'll rest in our briefs with respect to the appeal issues, unless Your Honors have any questions. [00:28:51] Speaker 02: Thank you, Counsel. [00:28:53] Speaker 00: Thank you very much, Your Honor. [00:28:54] Speaker 02: Ms. [00:28:54] Speaker 02: Keith has two minutes for rebuttal on the cross-appeal. [00:29:01] Speaker 02: And maybe it's 2.38. [00:29:02] Speaker 04: Thank you, Your Honors. [00:29:08] Speaker 04: Apologies. [00:29:10] Speaker 04: Very briefly, I think the very last question was about whether or not this would be a reversal as opposed to something else. [00:29:17] Speaker 04: And we actually briefed that in our, I'm going to get this wrong, gray brief. [00:29:22] Speaker 04: And we did say that this should actually be remanded because there are no other arguments. [00:29:26] Speaker 04: There are only arguments. [00:29:26] Speaker 01: It should not be remanded. [00:29:27] Speaker 04: It should not be remanded. [00:29:28] Speaker 04: You can reverse. [00:29:29] Speaker 04: It is a pure reversal. [00:29:32] Speaker 04: Because they never objected to the combination having the elements. [00:29:36] Speaker 04: They simply said, since you use the container, you must lose. [00:29:40] Speaker 01: The board, though, didn't actually find it. [00:29:42] Speaker 01: It did have it. [00:29:43] Speaker 01: It said even if. [00:29:45] Speaker 04: That's correct, Your Honor. [00:29:46] Speaker 04: That's correct. [00:29:47] Speaker 04: With respect to the arguments that we've heard, the only thing that I heard was somehow that patent owner wasn't on fair notice of the argument. [00:29:57] Speaker 04: But again, I point, Your Honors, to the language from the petition itself at 2675 and Lavien's declaration at 359 and 360. [00:30:07] Speaker 04: which clearly indicates that the combination would have resulted in the voice container being carried in a message that includes the action field, which is what we're saying is the mapping. [00:30:19] Speaker 04: And so we're no longer saying it's just the container. [00:30:22] Speaker 04: It is the container carried in a message that has an action field. [00:30:27] Speaker 04: The only reason that we gave further clarification in the reply was because it became apparent the patent owner was making a misunderstanding. [00:30:35] Speaker 04: And so that's why at page 2875 in our reply, we say patent owner's argument misstates the combination that we have made. [00:30:45] Speaker 04: And then we step through why that's a misstatement. [00:30:48] Speaker 04: And that's what the board ignored. [00:30:51] Speaker 04: By ignoring that we were no longer looking only at the container, there was not substantial evidence to support the board's decision. [00:30:59] Speaker 04: And then Judge Toronto, I believe you had asked me a question about whether or not this was abuse of discretion. [00:31:03] Speaker 04: I don't think that it is. [00:31:05] Speaker 04: for this one reason. [00:31:06] Speaker 04: I think what it is is there has to have been substantial evidence to support the board's conclusion. [00:31:12] Speaker 04: And here, there is not substantial evidence to support the board's conclusion. [00:31:15] Speaker 04: I think that's just a slightly different standard where abusive discretion is used for procedural matters. [00:31:21] Speaker 04: And so here, I think it's the substantial evidence standard that applies. [00:31:25] Speaker 04: The very last thing I would leave your honors with is the GE versus Raytheon case, which came out after our briefing at 983 F3 [00:31:34] Speaker 04: 1334, which just says that in obviousness combinations, you look to the evidence. [00:31:40] Speaker 04: And what does the evidence show in the totality of the case? [00:31:44] Speaker 04: Not necessarily exactly how the argument was placed. [00:31:47] Speaker 04: So we appreciate your honor's time and attention. [00:31:49] Speaker 04: And I thank you very much. [00:31:51] Speaker 02: Thank you, counsel. [00:31:52] Speaker 02: We will take the case on the submission. [00:31:54] Speaker 04: Thank you, your honor. [00:32:31] Speaker 02: Our next case.