[00:00:00] Speaker 04:
Our next case is Google versus real-time adaptive streaming, 2021-15-45.

[00:00:09] Speaker 04:
Mr. Modi, you don't need the mask unless you wish to use it when you're arguing.

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

[00:00:19] Speaker 04:
So we have an attack on the same patent, but with a different reference.

[00:00:24] Speaker 02:
We do, Your Honor.

[00:00:26] Speaker 02:
Good morning.

[00:00:27] Speaker 02:
Your honors may please the court.

[00:00:29] Speaker 02:
The board erred in finding that the Keele reference does not disclose the tracking limitation of the claims.

[00:00:36] Speaker 02:
In so doing, the board overlooked critical aspects of Keele.

[00:00:40] Speaker 02:
Now, Keele's disclosure should have been dispositive and requires a reversal, especially in light of the board's finding that the Keele's Q task TQ in Figure 3

[00:00:50] Speaker 02:
refer to all tasks, including pending requests for data transmission.

[00:00:55] Speaker 02:
At a minimum, we believe this court should remand because the board failed to consider the alternative arguments made by Google.

[00:01:03] Speaker 02:
Let me address each of these issues in detail.

[00:01:05] Speaker 02:
I'd like to start with the first issue, that the keel reference plainly teaches the tracking limitation.

[00:01:12] Speaker 02:
Now, if you look at claims 1 and 23, they're very broad.

[00:01:15] Speaker 02:
They recite, tracking throughput comprises tracking a number of pending requests for data transmission.

[00:01:22] Speaker 02:
Now, real-time expert Dr. Zeiger acknowledged that the 046 patent provides no examples of how pending requests are tracked.

[00:01:32] Speaker 02:
In fact, he said, we leave it to one of skill in the art, this simple concept of tracking, and that's at appendix 1824.

[00:01:41] Speaker 02:
He also agreed that the request, pending request for data transmission can be tracked either directly or indirectly.

[00:01:47] Speaker 02:
You can find that at appendix 1826.

[00:01:50] Speaker 02:
So Keele certainly discloses this tracking limitation in as much detail as the 046 pad.

[00:01:56] Speaker 02:
Now if you look at the specific aspects of Keele, in our view, the board overlooked two critical aspects of Keele.

[00:02:04] Speaker 02:
And I'd like to spend some time discussing those.

[00:02:06] Speaker 02:
First, figure three of Keel, which is the figure that we're all looking at here, that deals strictly with a data transmission routine for transmitting a data communication frame.

[00:02:19] Speaker 02:
Now, that is key here, Your Honor, and the reason for that is if you look at, for example, appendix 1503 of Keel, it says that figure three is directed to quote the sequential steps for transmitting a data communication frame.

[00:02:33] Speaker 02:
The Keel patent also at appendix 1502 says that the data compression is done on a frame by frame basis.

[00:02:40] Speaker 02:
One frame may be compressed and the next frame may not be.

[00:02:43] Speaker 02:
And we believe the reason the board erred with respect to this is if you look at appendix 27, which is the board's final written decision, the board mixed up the processes in figure 2 and figure 3.

[00:02:54] Speaker 02:
Figure 2 deals with the PC routine bring up.

[00:02:57] Speaker 02:
process, it's undisputed.

[00:02:59] Speaker 02:
That only happens when you start up the PC, right?

[00:03:02] Speaker 02:
And in fact, their counsel, this is at Appendix 440, admitted at oral argument before the board that Figure 3 is directed to, quote, setting lines or different values are set.

[00:03:14] Speaker 02:
That was what he said to the board at oral argument, and that's undisputed.

[00:03:18] Speaker 02:
So given that the board

[00:03:20] Speaker 02:
basically conflated figures two and three in arriving at its conclusion that because PC bring up routine tasks are also tracked by the processor, that somehow carries over to figure three.

[00:03:32] Speaker 02:
We believe that was error.

[00:03:34] Speaker 02:
Also, Judge Prost, I see you may have a question.

[00:03:37] Speaker 00:
No, no, no, no.

[00:03:39] Speaker 00:
I'm waiting for you to get to your APA argument stuff.

[00:03:42] Speaker 00:
Because I mean, this is really complicated technology, and it's really hard to figure out.

[00:03:46] Speaker 00:
And I think even if you take your expert's opinion, I think you still need some inferences to be drawn from that opinion, which is why I gravitated more towards your obviousness APA, the one you're challenging in the APA that the board didn't reach, arguably.

[00:04:07] Speaker 02:
I'm going to make just one more point on Kiel and then I'll get to those arguments.

[00:04:13] Speaker 02:
With respect to the second aspect, and I do think that the reason I want to spend a little bit of time on this is because I do think it's, in our view, dispositive of what Kiel teaches, which is the Table 2 of Kiel.

[00:04:24] Speaker 02:
And I do want to have the court look at Appendix 1453, which is the testimony of our expert, Dr. Rodriguez.

[00:04:31] Speaker 02:
So now with respect to Table 2, the board simply shrugged its shoulders and said, well, we don't believe this testimony.

[00:04:38] Speaker 02:
Dr. Rodriguez explained it enough.

[00:04:41] Speaker 02:
But if you actually look at the actual testimony, we believe, again, it's dispositive with respect to the disclosures of Keel.

[00:04:46] Speaker 02:
So if you look at Appendix 1453, we're looking at paragraph 80, and it's in the middle of the page.

[00:04:52] Speaker 02:
This is what the board said.

[00:04:53] Speaker 02:
Moreover, the actual data in Table 2 further confirms that... This is what the expert said.

[00:04:59] Speaker 02:
Yes, Your Honor.

[00:04:59] Speaker 02:
Appendix 1453, this is the testimony of our expert, Dr. Rodriguez.

[00:05:03] Speaker 02:
He said, moreover, the actual data in Table 2 further confirms that the tasks in Q in Q will correspond to pending requests for data transmission.

[00:05:11] Speaker 02:
Specifically, as discussed above, higher thresholds are associated with lower transmission line speeds, which a personal foreigner skilled in the art would have recognized is done because lower transmission line speeds would have provided more time for the process to work through the queue.

[00:05:24] Speaker 02:
And then he goes on and then explains, consistent with this understanding, the processor task Q TT

[00:05:30] Speaker 03:
My understanding of this is that the board didn't say he didn't say it, he just didn't explain it in a way that made it persuasive.

[00:05:40] Speaker 03:
I guess I don't quite see why that's wrong.

[00:05:42] Speaker 02:
So the reason, Your Honor, that's wrong is two reasons.

[00:05:45] Speaker 02:
One is, if you actually look at Dr. Rodriguez's testimony, it's fairly detailed.

[00:05:50] Speaker 02:
He did actually go through figure two.

[00:05:51] Speaker 02:
He explained how figure two worked.

[00:05:53] Speaker 02:
He explained how figure three works.

[00:05:54] Speaker 02:
And then looking at table two, he explained how one of skill in the art would have understood table two in the context of a data transmission, right?

[00:06:02] Speaker 02:
And what do we have in response from their expert, Dr. Zegar?

[00:06:06] Speaker 02:
He does not actually address table two, Your Honor.

[00:06:09] Speaker 02:
He does not address this testimony of table two.

[00:06:11] Speaker 02:
And the board recognized that.

[00:06:12] Speaker 02:
It actually asked real time at oral argument that you can find that at appendix 435 to 436.

[00:06:17] Speaker 02:
So we do believe that there's enough here.

[00:06:21] Speaker 02:
But Judge Prost, I do want to get to your question of the APA violation with respect to the alternative argument.

[00:06:26] Speaker 02:
And we do believe, at a minimum, that this court should remand with respect to the board's failure to address the two alternative arguments Google made in its petition.

[00:06:38] Speaker 02:
And for example, you can find that in Appendix 104, Google clearly laid out the two alternative arguments.

[00:06:45] Speaker 02:
The board actually acknowledged both of these arguments at institution at Appendix 214.

[00:06:49] Speaker 02:
It actually agreed.

[00:06:50] Speaker 02:
It said one of those arguments was persuasive.

[00:06:52] Speaker 02:
And again, you can find that at Appendix 214.

[00:06:54] Speaker 02:
And in its final decision, what does the board do?

[00:06:57] Speaker 02:
The board lists those arguments at Appendix 22, but fails to address them with any explanation, much less adequate explanation that's required by this court's case law.

[00:07:05] Speaker 03:
So the two arguments, I think, have to do with sometimes not always.

[00:07:11] Speaker 03:
and this idea of a modification being obvious.

[00:07:18] Speaker 03:
On the first one, I guess as I came to read the argument, including, I think, in your brief here, but certainly below, although it was not meaningfully developed, I understood that argument to be not so much an Unwired Planet argument, but rather that figure three

[00:07:40] Speaker 03:
sometimes would run alone without the processor doing any of the other tasks, such as figure two.

[00:07:48] Speaker 03:
And if that's what the argument was, then the board's rejection of the main point about what figure three is, not only data transmission requests, does in fact take care of that point.

[00:08:04] Speaker 02:
So Your Honor, I would quibble with you on that.

[00:08:06] Speaker 02:
I don't believe that's how we looked at it.

[00:08:09] Speaker 02:
I think, as we explained, of course, in our briefs before the board.

[00:08:12] Speaker 02:
And we did cite to Unwired Planet before the board as well.

[00:08:16] Speaker 02:
And it was not something that we raised simply on appeal.

[00:08:19] Speaker 02:
We do believe that argument goes hand in hand, that if it's practiced some of the time, it's certainly unpatentable under Unwired Planet, under poverty integration.

[00:08:29] Speaker 03:
I'm not sure Unwired Planet actually goes that far.

[00:08:34] Speaker 03:
But I guess I have come to think that that wasn't actually the argument that the board had to understand you were making.

[00:08:42] Speaker 03:
But just forget about everything except figure three, then figure three satisfies the only data request view of things.

[00:08:51] Speaker 03:
And the board already rejected that in the main board.

[00:08:54] Speaker 02:
So you are right.

[00:08:56] Speaker 02:
Let's assume, if you want to go with that, I still think this court, at a minimum, needs remand.

[00:09:00] Speaker 02:
And here's why.

[00:09:01] Speaker 02:
And this goes to one of the arguments we made, that if you actually look at the board's factual findings here with respect to Keel, they actually said Keel discloses that the figure three process, all the tasks are tracked, right, including a pending request for data transmission.

[00:09:18] Speaker 02:
So when the board arrived at that conclusion, we think that goes hand in hand with this alternative argument that we made.

[00:09:24] Speaker 02:
That if that's the case, then it's necessarily satisfied.

[00:09:28] Speaker 02:
This limitation is necessarily satisfied.

[00:09:29] Speaker 02:
Again, the board at Appendix 214 found that argument persuasive.

[00:09:33] Speaker 02:
At the institution decision, which doesn't count.

[00:09:35] Speaker 02:
Understood, Your Honor, but I do think.

[00:09:38] Speaker 00:
I just want to understand, if we were to agree with a remand, if we affirm the main appeal on the main issue, in other words, we don't dislodge the board's conclusions with respect to figure three,

[00:09:52] Speaker 00:
All the board, in order to satisfy whatever you argue is the APA requirement, the board could just say, based on our conclusions on the main appeal, this argument also falls because it's dependent on one of the arguments we've rejected.

[00:10:08] Speaker 00:
I mean, that's what it is.

[00:10:09] Speaker 00:
You disagree with what they said about Figure 3.

[00:10:13] Speaker 00:
But if we were to not buy that, that's all they'd have to do on remand that was arguably missing, right?

[00:10:19] Speaker 02:
So Your Honor, if we go with the assumptions that we're talking about, yes, but not with respect to the second argument, which the second alternative, which is the obviousness argument, where the board, again, did not address that with any explanation, much less adequate explanation, so that this court actually could do its function of reviewing the board's decision.

[00:10:36] Speaker 02:
And we do think that argument was actually further, there was more evidence on that issue during trial.

[00:10:43] Speaker 02:
Again, the board didn't look at any of this.

[00:10:44] Speaker 02:
We spelled this out in our briefing.

[00:10:46] Speaker 02:
So for example, and I think there's, I want to point to some of it.

[00:10:50] Speaker 03:
My recollection is that you had two sentences on that in your petition.

[00:10:54] Speaker 03:
You had maybe a paragraph in the reply, but didn't

[00:10:57] Speaker 03:
end up saying in that full paragraph more than the two sentences.

[00:11:01] Speaker 03:
And the gist of it was it would be obvious to modify the keel counting of all requests pending in front of the processor to limit it to only data transmission requests to prioritize them.

[00:11:21] Speaker 03:
I don't even understand how that makes logical sense.

[00:11:24] Speaker 02:
So let me try, Your Honor, to explain.

[00:11:27] Speaker 02:
So if you look at the way this was set up, we said, well, Keele plainly teaches it.

[00:11:32] Speaker 02:
The board disagreed with it.

[00:11:33] Speaker 02:
And then we had two alternative arguments.

[00:11:35] Speaker 02:
We discussed one of them.

[00:11:36] Speaker 02:
The second is the obviousness.

[00:11:37] Speaker 02:
And when you look at the obviousness argument, when we went to the obviousness argument, we said, in view of all of the discussion above, at a minimum, one of skill, to the extent you want to say, well, the Keele processor figure three, the figure three process,

[00:11:50] Speaker 02:
does more than just track data transmission requests, then it would have been obvious to modify that to only limit that to pending requests for data transmission.

[00:12:01] Speaker 03:
And the only reason stated was to prioritize data transmission requests.

[00:12:06] Speaker 03:
That's what I guess I don't even understand logically, how if the processor has a long list of things to do, of which 20% are data transmission requests, only counting the data transmission requests prioritizes them, is the processor still has all this other stuff to do before it gets to whatever it's going to get to.

[00:12:28] Speaker 02:
So the reason, Your Honor, that we believe does support our obvious theory is two reasons.

[00:12:34] Speaker 02:
One is, of course, what is the function of this system, right?

[00:12:38] Speaker 02:
If you look at Kiel over and over, it talks about it's a data communication frame, right?

[00:12:43] Speaker 02:
It is directed to transmitting data communication frames.

[00:12:46] Speaker 02:
So if they are going to make the argument that these tests are somehow broader, then one of skill would have said, OK, fine.

[00:12:53] Speaker 02:
Then I would modify it to only track those requests in the process of figure three.

[00:12:57] Speaker 02:
And I think, Your Honor, I don't want you to sort of overlook the evidence from their expert that came in during trial.

[00:13:03] Speaker 02:
I do think that's telling what that testimony was, and I do want to just spend a minute on that.

[00:13:08] Speaker 04:
So this is- Well, you hardly have much more than a minute left.

[00:13:12] Speaker 04:
counsel you've used.

[00:13:13] Speaker 04:
You're well into your rebuttal time.

[00:13:15] Speaker 04:
Do you want to save it or continue?

[00:13:17] Speaker 02:
Your Honor, I'll just take 30 seconds and I'll save the rest of my rebuttal time.

[00:13:20] Speaker 02:
I appreciate it.

[00:13:21] Speaker 02:
So this is at appendix 1897 to 1898.

[00:13:24] Speaker 02:
This is their expert.

[00:13:26] Speaker 02:
He said, it's conceivable that you could have a special cue for compressing in keel.

[00:13:30] Speaker 02:
So that goes directly to the point that Dr. Rodriguez was making and the trauma that we were discussing.

[00:13:36] Speaker 02:
And then this is the last point I'll make, just Laurie, and then I'll sit down, is that their expert, Your Honor's Heer, said this tracking concept is, quote, simple concept of tracking.

[00:13:46] Speaker 02:
That's what he said.

[00:13:47] Speaker 02:
It's at Appendix 1824.

[00:13:49] Speaker 02:
And he also said that tracking is something that's readily understandable by a person of honest view without examples.

[00:13:55] Speaker 02:
That's Appendix 1824.

[00:13:56] Speaker 02:
So we do think there's enough evidence for this court to send this back and for the board to resolve the obviousness issue.

[00:14:03] Speaker 04:
Thank you.

[00:14:03] Speaker 04:
Thank you, counsel.

[00:14:04] Speaker 04:
We'll give you two minutes for a bottle.

[00:14:06] Speaker 04:
Thank you.

[00:14:08] Speaker 04:
Mr. Kroger.

[00:14:11] Speaker 01:
Good morning again.

[00:14:12] Speaker 01:
I may please the court.

[00:14:14] Speaker 01:
Paul Kroger for plaintiff.

[00:14:16] Speaker 01:
Sorry, for patent owner, real-time adapter springing.

[00:14:19] Speaker 04:
Mr. Kroger, the opposing counsel began his brief by asserting that it has standing to appeal.

[00:14:29] Speaker 04:
You have not challenged that.

[00:14:30] Speaker 01:
That's correct, Your Honor.

[00:14:31] Speaker 01:
We have not challenged that the case against Google was dismissed without prejudice, which I believe gives them standing to appeal.

[00:14:39] Speaker 01:
If I can, I guess, start where my opposing counsel finished with the APA violations and specifically

[00:14:46] Speaker 01:
the claim of obviousness.

[00:14:49] Speaker 01:
Judge Toronto was correct that the discussion of obviousness was very sparse, both in terms of their expert's declaration and what was argued in the petition.

[00:15:01] Speaker 01:
But what the board found in its final written decision was that Dr. Rodriguez's testimony was conclusory, and therefore it was given little weight.

[00:15:09] Speaker 01:
Well, the final decision may not have directly gone to their argument of obviousness.

[00:15:16] Speaker 01:
It did mention it.

[00:15:17] Speaker 01:
And the only way you get to that obviousness argument, the only way you can find that Kiel rendered the claims obvious is by considering Dr. Rodriguez's testimony.

[00:15:31] Speaker 00:
Let's talk about the motivation issue, which is the last one we discussed with your friend.

[00:15:36] Speaker 00:
I guess I'm not sure why that disposes of the board's rejection of the Rodriguez.

[00:15:47] Speaker 00:
They cited two things.

[00:15:48] Speaker 00:
They cited their argument about motivation, which is, as Judge Toronto pointed out, pretty truncated.

[00:15:55] Speaker 00:
But it's an argument there that the board cited.

[00:15:59] Speaker 00:
and your expert's testimony, not their expert's testimony, which I don't think the board ever dealt with.

[00:16:06] Speaker 00:
Did the board ever deal with the comments made by your expert about how a person skilled in the art would have been easily doing this, and there's nothing in the patent that gives any examples?

[00:16:17] Speaker 00:
So on those two pieces, why isn't it at least a problem that the board didn't explain why it was

[00:16:27] Speaker 00:
presumably rejecting those arguments.

[00:16:30] Speaker 01:
So I think in terms of the modification argument, I believe as Judge Sharonto pointed out what we understood and what they argued was that

[00:16:40] Speaker 01:
there would be times that only figure three was running.

[00:16:43] Speaker 01:
The second one.

[00:16:48] Speaker 00:
That's the first one.

[00:16:53] Speaker 01:
Where it would have been obvious to change the patent to

[00:17:01] Speaker 01:
to prioritize data tasks, I think is what they said.

[00:17:04] Speaker 01:
And I'm not even sure what that means.

[00:17:05] Speaker 01:
And I don't even know how prioritizing data is.

[00:17:07] Speaker 03:
I think they specifically said, even if Keel talks about counting all tasks in the processor queue, it would be obvious to modify that to count only the data transmission requests.

[00:17:22] Speaker 03:
And then there's a clause at the end of the one sentence on this that said, because that would prioritize data transmission requests.

[00:17:31] Speaker 01:
Yes, and that was where I started.

[00:17:33] Speaker 01:
That essentially parroted their experts, the two sentences of analysis from their experts declaration in paragraph 80 of Dr. Rodriguez's declaration.

[00:17:46] Speaker 01:
which we do believe that the board's final written decision simply rejected as conclusory.

[00:17:51] Speaker 01:
We think the board, as the fact finder, said, this is conclusory, this doesn't get you there, and that's enough.

[00:17:58] Speaker 01:
They try to point, and that would be a lack of substantial, that would be showing that they did not meet their burden of showing that the limitation was met.

[00:18:09] Speaker 01:
They do point to our expert's declaration,

[00:18:12] Speaker 01:
and deposition testimony.

[00:18:15] Speaker 01:
But we don't think that would be sufficient for the board to change its mind.

[00:18:18] Speaker 01:
And we don't think that there's any reason for the board to change its mind, given the fact the board rejected their primary evidence, which is of their own expert.

[00:18:24] Speaker 00:
Well, it's not a matter of us concluding that we're going to send it back because it's clear to us that the board's going to change its mind.

[00:18:31] Speaker 00:
It's a matter of whether or not the board was required to consider the stuff.

[00:18:35] Speaker 00:
That's not the stuff that we use, right?

[00:18:38] Speaker 01:
Correct.

[00:18:38] Speaker 01:
And specifically because the patent owner bears no burden and didn't need to come forward with any evidence at all,

[00:18:44] Speaker 01:
What we need to analyze is whether or not petitioner's evidence was sufficient to satisfy the burden of showing the claims being unpatentable based off the arguments that were actually raised in the petition.

[00:18:56] Speaker 00:
So let me just see if I understand you.

[00:18:58] Speaker 00:
I think you are correct, although there's just too much paper in this case.

[00:19:04] Speaker 00:
Let's focus on the motivation, which is the second APA argument.

[00:19:09] Speaker 00:
Your view is that the board's rejection statements about Rodriguez's testimony being too conclusory and rejecting it, that would cover this motivation argument as well, so that they were dealing with that.

[00:19:24] Speaker 00:
when they said that?

[00:19:25] Speaker 01:
Yes, Your Honor.

[00:19:26] Speaker 01:
That's how we read the final written decision.

[00:19:28] Speaker 01:
We believe that's a fair reading of the final written decision.

[00:19:30] Speaker 01:
Because the only way you can get to this motivation argument, clearly it doesn't come from the text of Keel itself.

[00:19:37] Speaker 01:
The only way you can get to it and the only argument for it in the petition is based off paragraph 81 of Dr. Rodriguez's declaration, which the board rejected as being conclusory.

[00:19:47] Speaker 00:
And what about your experts' comments?

[00:19:50] Speaker 00:
Don't you think they were compelling enough to at least warrant an understanding of why the board didn't find them compelling?

[00:20:01] Speaker 01:
Our experts' comments were submitted solely in rebuttal to their experts' evidence.

[00:20:07] Speaker 01:
So if they found their expert, and then since they bore the affirmative burden, by their expert not meeting the burden and not presenting enough evidence,

[00:20:14] Speaker 01:
At that point, I don't think the board is required to consider our expert's testimony.

[00:20:18] Speaker 00:
Well, if your expert makes some concessions, which are arguably at least compelling to support their case, isn't it incumbent upon the board to explain why it doesn't agree with their observation in that regard?

[00:20:33] Speaker 01:
I don't think so, Your Honor, because in the IPR process, what we're analyzing is the evidence and argument that supports the petition.

[00:20:41] Speaker 03:
So if the underlying... We certainly have said, I guess I'm thinking of the Ravalma case, that the patent owner's own evidence can actually supply the support for a petitioner's argument, though obviously inadvertently.

[00:20:58] Speaker 03:
And we don't think that happened here, because I mean... So can you address 1897, which I think is the point Mr. Moody principally put aside the 1824.

[00:21:10] Speaker 03:
That second grader knows how to count.

[00:21:22] Speaker 03:
1897 I think was the page.

[00:21:23] Speaker 03:
It's the page that I put my little sticky on when Mr. Moody was done.

[00:21:37] Speaker 01:
So if we look at page 1897, this is from Dr. Zeiger's deposition testimony.

[00:21:43] Speaker 03:
That's your expert.

[00:21:44] Speaker 01:
Correct.

[00:21:45] Speaker 01:
And he was asked some hypotheticals.

[00:21:47] Speaker 01:
And I will say here that if we look at his answers, he's clearly hedging.

[00:21:52] Speaker 01:
He's saying things.

[00:21:53] Speaker 01:
So I wouldn't say it's guaranteed, but it's certainly a reasonable proposition.

[00:21:58] Speaker 01:
And that's from page lines 14 to 16 in response to the first hypothetical.

[00:22:02] Speaker 03:
And what is the it that's not guaranteed?

[00:22:06] Speaker 01:
Sure.

[00:22:07] Speaker 01:
The question is, if a person of ordinary skill in the art could associate some predictable range of times, if they were told that the 256 bytes of data are going to be compressed, and they were told which compression is going to be used.

[00:22:22] Speaker 01:
And I think this relates back to the prior question, is it your opinion, based on your understanding

[00:22:27] Speaker 01:
that the frame that's received in 302 is not transmitted.

[00:22:31] Speaker 01:
It's not necessarily transmitted.

[00:22:32] Speaker 01:
Is that your understanding?

[00:22:35] Speaker 01:
I'm sorry.

[00:22:36] Speaker 01:
So in the record, the only question we have is about this hypothetical.

[00:22:41] Speaker 01:
It says that's probably true because they could, assuming they had access to it, and they could do some testing, and they could test out many different types of inputs and see what the min and max times of them are and try to draw some inferences about this sort of range.

[00:22:54] Speaker 01:
So I wouldn't say it's guaranteed, but it's certainly reasonable.

[00:22:56] Speaker 01:
And the next question he's asked, if we look to the queue that's associated with the process or task threshold,

[00:23:03] Speaker 01:
I know that we have a disagreement about the scope of what would be included in that queue, but you would agree that queue, perhaps in addition to other things, in your opinion, could also include tasks for compression, correct?

[00:23:13] Speaker 01:
He says, I don't think it's required, but it could, because I could imagine there is conceivably you have a special queue for.

[00:23:22] Speaker 01:
And that's compression.

[00:23:24] Speaker 01:
There could be all sorts of ways for setting this up.

[00:23:26] Speaker 01:
I'm not excluding the possibility.

[00:23:28] Speaker 01:
not excluding the possibility is far from offering affirmative evidence of their statements that

[00:23:38] Speaker 01:
that you could limit TQ to just request for... I'm sorry, not that you could, but that you would.

[00:23:45] Speaker 01:
That you would.

[00:23:45] Speaker 03:
Right.

[00:23:46] Speaker 03:
And it also doesn't address, does it, anything about how that would somehow prioritize data transmission requests or not?

[00:23:53] Speaker 03:
I must say, that's something of a sticking point for me.

[00:23:56] Speaker 03:
I don't understand the logical connection between counting only data transmission requests and prioritizing data transmission requests.

[00:24:03] Speaker 01:
We don't either, Your Honor.

[00:24:04] Speaker 01:
And we certainly don't think that that argument

[00:24:06] Speaker 01:
meets the limitation of actually tracking the number of pending data requests.

[00:24:11] Speaker 01:
But having read through this deposition testimony in here, I don't see anything in here that adds any support to or any more support to their position.

[00:24:23] Speaker 01:
And so therefore, by looking, you only need to look at their evidence, not our evidence.

[00:24:29] Speaker 01:
And with that, the board found, as the fact finder, that Dr. Rodriguez's testimony is conclusory.

[00:24:34] Speaker 01:
And that just sort of

[00:24:36] Speaker 00:
And issue.

[00:24:37] Speaker 00:
But the answer is, I mean, again, we're not deciding whether or not they would have reached a different result, but only whether or not they dealt with it, so we know what conclusion they reached.

[00:24:47] Speaker 00:
But can I take you back to the point you and I were discussing right before this, which is what I understood your answer to me to be was that the board decided Rodriguez was conclusory, and that would also govern the stuff he said about this motivation.

[00:25:04] Speaker 00:
I think you may be wrong about that.

[00:25:07] Speaker 00:
Because when you look at Appendix 27 when they're talking about the conclusory stuff, they cite paragraph 78 to 80 of the Rodriguez Declaration.

[00:25:19] Speaker 00:
And I think the material we are talking about appears in paragraph 81.

[00:25:25] Speaker 00:
So one, am I right about that?

[00:25:28] Speaker 00:
And two, if I'm right about that,

[00:25:31] Speaker 00:
doesn't that undo the argument you were making to me five minutes ago?

[00:25:37] Speaker 01:
So it does not specifically cite to paragraph 81, but paragraph 81 is simply a follow-on from paragraph 80.

[00:25:45] Speaker 01:
So it starts with, even if the task in Keel could correspond to something other than just pending requests for data transmission, a person of skill would have understood there would have been instances in which Keel's processor

[00:25:57] Speaker 01:
is only being used to compress data transmission, and then so on.

[00:26:01] Speaker 01:
So I think by rejecting his first conclusions about what Keele actually meant in 78 to 80, they are at least implicitly also rejecting what he said in paragraph 81 as conclusory, because what happens in paragraph 81 necessarily follows from the discussion in paragraph 80, and would need that as sort of the predicate to understand Keele and what he's modifying.

[00:26:28] Speaker 04:
Unless the panel has any further questions, I'll be happy to see you the rest of my time.

[00:26:39] Speaker 02:
Your Honor, just a few points.

[00:26:41] Speaker 02:
Judge Prost, you were absolutely right.

[00:26:43] Speaker 02:
Dr. Rodriguez's testimony that the board found conclusively was limited to the first issue.

[00:26:49] Speaker 02:
They did not address the obvious argument at all.

[00:26:52] Speaker 00:
My second point, Judge Rana, going to your point... You mean the obvious, the second obvious.

[00:26:56] Speaker 02:
That's right, Your Honor.

[00:26:57] Speaker 02:
The paragraph 81 testimony that you were looking at.

[00:27:00] Speaker 02:
Judge Trano, going to your point about data prioritization, if you look at Keel, again, the entire purpose of the Keel reference is transferring data.

[00:27:09] Speaker 02:
I'll point you to appendix 1501, columns 1 to 2.

[00:27:12] Speaker 00:
I'm sorry, what's the name?

[00:27:13] Speaker 02:
Appendix 1501.

[00:27:15] Speaker 02:
This is a Keel reference.

[00:27:16] Speaker 02:
at column 1 around line 64 to column 2, line 2.

[00:27:23] Speaker 02:
It talks about how it's important to make sure that you compress data only when you need it.

[00:27:28] Speaker 02:
And so it kind of gets to the point of why one of skill would want to prioritize certain things over others.

[00:27:34] Speaker 02:
And then finally, the point that I'll make is Dr. Rodriguez's testimony.

[00:27:37] Speaker 02:
Your Honor, you focused on 1897.

[00:27:39] Speaker 02:
We believe that it does support us from 1897 to 1898, because what he said was he said it's conceivable one of skill would be able to implement it, just as Dr. Rodriguez said in his paragraph 81.

[00:27:51] Speaker 02:
And then lastly, appendix 1824.

[00:27:55] Speaker 02:
I do want to just spend a minute looking at that in the last 30 seconds I have.

[00:28:01] Speaker 03:
This is 1824.

[00:28:02] Speaker 02:
1824, Your Honor.

[00:28:04] Speaker 02:
So this is, again, their expert testimony, Judge Prost, which we believe totally supports our obviousness argument.

[00:28:11] Speaker 02:
We asked him at Appendix 1824, Line 7, well, my question is the 046 patent does not disclose how the tracking in this sentence would be performed, correct?

[00:28:20] Speaker 02:
Answer, well, the 046 patent

[00:28:22] Speaker 02:
does not go into explicit detail saying that the tracking has to be done in any particular specific manner.

[00:28:28] Speaker 02:
It leaves that to a person of skill in the art with their knowledge of the simple concept of tracking.

[00:28:34] Speaker 02:
You know tracking is something that's readily understandable by a person of skill without examples.

[00:28:39] Speaker 02:
We believe they are asking this court to require more from the Keele reference than their own patent disclosure, and we believe that's error.

[00:28:45] Speaker 02:
This court, at a minimum, should remand on obviousness.

[00:28:47] Speaker 02:
Unless you have any other questions, that's why I have.

[00:28:50] Speaker 04:
Thank you, Council.

[00:28:52] Speaker 04:
Appreciate both arguments.