[00:00:00] Speaker 04:
Okay, our next case is number 21-1412, Microsoft Corporation versus IPA Technologies.

[00:00:07] Speaker 04:
Mr. McAuliffe.

[00:00:17] Speaker 01:
Good morning, Your Honors.

[00:00:18] Speaker 01:
May it please the Court, Joe McAuliffe for Appellant Microsoft.

[00:00:23] Speaker 01:
Your Honors, with respect to claims 8-10 and 63 of the 115 patent and claim 28 of the 560 patent,

[00:00:30] Speaker 01:
The board held that the relevant petitions did not show the how or why the agent registries of our two cited prior art references, the Kiss patent and the FIPA 97 standard, would be combined.

[00:00:44] Speaker 01:
That finding was unexplained, unsupported by the record, and arbitrary in view of its earlier, more detailed finding that the petitions had persuasively proved both the how and the why of that combination.

[00:00:59] Speaker 01:
For example.

[00:01:00] Speaker 02:
I'm sorry, of the combination of the two references, globally speaking?

[00:01:04] Speaker 01:
And including the combination of the agent registries of each.

[00:01:08] Speaker 01:
Our petitions expressly said where analogous functionality is in both references, and we expressly said such as agent registries, they would be combined.

[00:01:21] Speaker 01:
We put that in our petitions, and that was part of the combination analysis.

[00:01:31] Speaker 01:
And on top of that, the board, the petitions laid out, and that was the how, right?

[00:01:37] Speaker 01:
We would use the administrative functionality and exemplary practices of FIPA 97 to implement the system and functionality of the KISSPAT.

[00:01:45] Speaker 01:
That was it, including combining agent registries.

[00:01:49] Speaker 01:
The why set forth in the petitions was six, at least six reasons to combine or motivations to combine that a person of ordinary skill in the art would have had.

[00:01:59] Speaker 01:
The board never explained why this showing was insufficient to show the how and why of the combination of those.

[00:02:08] Speaker 04:
So what was the combination we're talking about here?

[00:02:11] Speaker 04:
The two registry functions.

[00:02:13] Speaker 04:
And if I understand correctly, that just means adding additional fields to the

[00:02:21] Speaker 01:
kiss registry information the claims require agent certain claims require agent registries the claims don't talk about the structure of the agent registries but they do recite particularly the dependent claims that issue here they do recite certain information that must be stored in the agent registry such as I think claim eight requires trigger declarations so is the idea that the FIFA is adding additional information that's stored that was the idea that the agent registry information

[00:02:51] Speaker 01:
of FEMA 97 would be combined with the analogous agent registry information.

[00:02:57] Speaker 04:
But it's types of additional types of information.

[00:02:59] Speaker 01:
That's right.

[00:03:00] Speaker 01:
That's right.

[00:03:01] Speaker 01:
That it would have been obvious to do that.

[00:03:03] Speaker 01:
And that was the how and why.

[00:03:05] Speaker 01:
And indeed, in the board's final written decision, it found that that showing, that exact same showing, was persuasive and adopted at the Joint Appendix, pages 93 to 94.

[00:03:17] Speaker 01:
And indeed, in doing so, the board explicitly noted that our combination included combining the agent registry techniques of both references.

[00:03:26] Speaker 01:
That's at the joint appendix at pages 83, 84.

[00:03:29] Speaker 01:
In fact, I think that they quoted the sentence from our petitions, which said, where there are analogous functions such as agent registry, they would be combined.

[00:03:42] Speaker 02:
So the board.

[00:03:43] Speaker 02:
So that 8384 is just there reciting what you asserted, right?

[00:03:52] Speaker 02:
And then what did you say was at 9394?

[00:03:54] Speaker 00:
That's where they found that our evidence was persuasive.

[00:04:01] Speaker 02:
For the overall combination.

[00:04:02] Speaker 00:
For the overall combination.

[00:04:04] Speaker 02:
But the overall combination would have been motivated to combine FIPA 97's communication protocol and interagent communication language between the agents of KISS, adding its administrative functionality and practices to the KISS system.

[00:04:19] Speaker 02:
Is that what you're relying on?

[00:04:21] Speaker 00:
Yes.

[00:04:21] Speaker 02:
That last part's important.

[00:04:23] Speaker 01:
Because we defined the administrative functionality as parts one to three.

[00:04:29] Speaker 02:
Can I ask this?

[00:04:30] Speaker 02:
As I understand it, if we were to agree with you that the board erred in saying that you did not provide enough to motivate a combination, there would nevertheless be one or two remaining issues about what the combination actually disclosed that IPA raised and that the board did not rule on.

[00:04:57] Speaker 02:
I may be whether there was a trigger and something else.

[00:05:04] Speaker 01:
A trigger declaration, and I think that may be correct, Your Honor.

[00:05:09] Speaker 02:
So the most you could get out of that would be a vacator for consideration of the other issues.

[00:05:16] Speaker 01:
That they did not resolve.

[00:05:18] Speaker 01:
I think that may be right, Your Honor.

[00:05:19] Speaker 01:
I think that's right.

[00:05:25] Speaker 01:
Your Honor, if I may move to a different issue.

[00:05:28] Speaker 01:
And also, I'm not so sure my five minutes of reserve time put on the clock, but.

[00:05:34] Speaker 04:
I wouldn't worry about it.

[00:05:35] Speaker 04:
You're probably not going to have it at the end.

[00:05:37] Speaker 01:
OK.

[00:05:38] Speaker 01:
Thank you, Your Honor.

[00:05:39] Speaker 02:
And we've done one out of 10 issues.

[00:05:42] Speaker 01:
Well, the second issue I'd like to raise is claim 29 of the 115 patent.

[00:05:46] Speaker 01:
Your Honors, the board refused to consider our arguments on that claim solely because the petition cited to the analysis of claim language in another claim with slightly different wording.

[00:05:58] Speaker 01:
It is black letter law that different claim terms can cover the same subject matter.

[00:06:05] Speaker 01:
The board's conclusion that different claim terms necessarily meant there were material differences for purposes of patentability.

[00:06:12] Speaker 04:
But what they said is that you didn't explain why they were the same, right?

[00:06:19] Speaker 01:
That is.

[00:06:19] Speaker 01:
And then they, because of that, refused to actually compare the analysis we pointed to to the claim language, the relevant claim language of 29.

[00:06:28] Speaker 01:
Oh, I think they had an obligation to do that because we didn't think any further explanation was needed in the petition.

[00:06:35] Speaker 01:
And it was based on their view that because there were differences, there were material differences to the patentability issues.

[00:06:43] Speaker 01:
That is an error of law.

[00:06:45] Speaker 01:
And it led them into an abuse of discretion, that is, refusing to consider and resolve, at least consider our arguments.

[00:06:53] Speaker 01:
They made it worse by another error.

[00:06:55] Speaker 01:
They refused to consider our reply arguments.

[00:06:59] Speaker 01:
The board, in its institution decision,

[00:07:03] Speaker 01:
said that they thought that there were material differences.

[00:07:06] Speaker 01:
They never identified any.

[00:07:08] Speaker 01:
In the patent owner response, IPA said there were material differences.

[00:07:13] Speaker 01:
And went one further, it said, as far as the showing of reading claim 29 on the prior art, IPA said that the petition, quote, failed to set forth any arguments or evidence.

[00:07:26] Speaker 01:
We had a right to respond to that statement.

[00:07:30] Speaker 01:
We also had a right to respond to the statement in the Patent on a Response and the Institution decision that there were material differences.

[00:07:36] Speaker 01:
We did that in the reply.

[00:07:38] Speaker 01:
We explained that there were no material differences, and we explained why the petition, what we cited to in the petition, satisfied the requirements of Claim 29.

[00:07:48] Speaker 01:
The board's refusal to even consider those arguments was another abuse of discretion under their own rules,

[00:07:54] Speaker 01:
under the scheduling order and under the decisions of this court.

[00:07:58] Speaker 01:
And we would ask that you vacate their decision on claim 29 and demand with instructions to consider both the arguments in the petition and in our reply.

[00:08:14] Speaker 01:
Your Honor, claim 86 requires a facilitator agent in the preamble of the claim.

[00:08:22] Speaker 01:
Later in the body of the claim,

[00:08:24] Speaker 01:
Claim 86 requires, quote, said at least one facilitator agent is operable to construct a goal satisfaction plan.

[00:08:33] Speaker 01:
In the petition, we addressed the facilitator agent in the analysis of the preamble, as you would expect, since that was the first place in the claim that phrase was recited.

[00:08:44] Speaker 01:
And in that analysis, the petition identified the meta-agent of the priority kiss patent.

[00:08:50] Speaker 01:
as corresponding to the meta-agent and agent registry of the KISS patent as corresponding to the facilitator agent.

[00:08:59] Speaker 01:
In the analysis later on in the body of the claim for the facilitator agent is operable to construct a gold satisfaction plan, we pointed to claim one, which has language of constructing a gold satisfaction plan.

[00:09:13] Speaker 01:
And the analysis in claim one explained how the meta agent of KISS, the very same meta agent, constructs a gold satisfaction plan.

[00:09:23] Speaker 01:
The board ruled that in the context of claim 86, we had not identified

[00:09:29] Speaker 01:
what in KISS was the facilitator agent.

[00:09:32] Speaker 01:
That was an error.

[00:09:34] Speaker 01:
We very clearly, in the analysis of the preamble, where you would expect us to put it, identified the meta-agent of KISS as the facilitator agent.

[00:09:45] Speaker 01:
The board just missed it.

[00:09:47] Speaker 01:
That was error.

[00:09:49] Speaker 01:
Its ruling was unsupported by the record.

[00:09:51] Speaker 01:
And no reasonable mind reading that, our analysis in the preamble, could agree with the board on that.

[00:09:57] Speaker 01:
The board accepted this very same analysis as persuasive with respect to claim 61, which also requires a facilitator agent operable to construct a goal satisfaction plan.

[00:10:11] Speaker 01:
We think the court, given what it did in 61, it means that its analysis of claim 86 was utterly arbitrary.

[00:10:20] Speaker 01:
The conclusions as to Claim 61 have not been appealed.

[00:10:23] Speaker 01:
So we think this court could reverse on Claim 86.

[00:10:26] Speaker 01:
But at the very least, it should vacate and remand for consideration of our preamble identification as the meta agent of KISP corresponding to the facilitator agent of Claim 86.

[00:10:45] Speaker 01:
Your Honor's claims 1011 of the 560 patent

[00:10:48] Speaker 01:
require, quote, advisory suggestions.

[00:10:52] Speaker 01:
That claim phrase does not appear in the patent outside of the claims.

[00:10:57] Speaker 01:
However, both parties in the board below seem to agree that one sentence in the patent specification provide written description support for the claimed advisory suggestions.

[00:11:10] Speaker 01:
That sentence states, quote, advice parameters preferably give constraints or guidance.

[00:11:17] Speaker 01:
Given that, the petition identified certain prior art constraints in the FIPA 97 standard that were

[00:11:26] Speaker 01:
contained in the agent registry of FIPA 97 and constrained how the system might serve.

[00:11:31] Speaker 02:
Can I just, what does it mean to give advice to a computer?

[00:11:35] Speaker 01:
That's an excellent question, your honor.

[00:11:37] Speaker 02:
I sum it up, the 2001 Space Odyssey and how it doesn't take Dave's advice.

[00:11:44] Speaker 01:
Well, I think in a system such as this, it's not necessarily the case that

[00:11:51] Speaker 01:
information, commands, parameters sent to, for example, a software agent will necessarily be followed.

[00:11:59] Speaker 01:
And so it may be the case where the agent has some discretion to not follow it under certain circumstances.

[00:12:08] Speaker 02:
Well, your basic position on that is that the closest thing in the spec in that column is the advice parameter, closest thing to advisory suggestions.

[00:12:17] Speaker 02:
And the advice parameter clearly covers at least the constraint that's in the prior art reference.

[00:12:23] Speaker 01:
That's right.

[00:12:24] Speaker 01:
That's right.

[00:12:24] Speaker 01:
They're reading out an example.

[00:12:27] Speaker 01:
And the reason they did it doesn't make any sense either.

[00:12:30] Speaker 01:
I mean, the board came to the conclusion that constraints were numerical.

[00:12:37] Speaker 01:
and guidance were non-numerical.

[00:12:38] Speaker 01:
But the patent doesn't say anything about that.

[00:12:40] Speaker 01:
There's no distinction between numerical and non-numerical parameters in the patent.

[00:12:48] Speaker 01:
And in fact, the patent doesn't even identify.

[00:12:52] Speaker 01:
I mean, it identifies a number of advice parameters, but it never says which one is a conspiracy.

[00:12:57] Speaker 02:
What about your last appeal issue?

[00:13:02] Speaker 02:
Put aside for a minute, at least for a minute, the question of the interpretation of the word process, which I'm not sure exactly why it bears on anything here.

[00:13:10] Speaker 02:
But the board said in a crucial sentence, even if we accept the following Microsoft's, I think, definition of process, it's quite striking that the petition never actually addresses particular language in this claim.

[00:13:25] Speaker 02:
So done.

[00:13:27] Speaker 00:
No.

[00:13:27] Speaker 02:
The business about the each, I don't know,

[00:13:31] Speaker 02:
each in separate computer processes.

[00:13:33] Speaker 01:
Right.

[00:13:34] Speaker 01:
And we pointed out that there were different DS, or directory facilitators, if you will, on physically separate computers, and therefore were necessarily different computer processes.

[00:13:48] Speaker 02:
You never addressed the language of resident.

[00:13:51] Speaker 02:
And why isn't it?

[00:13:53] Speaker 02:
fair for the board to say, there's this language without self-evident meaning.

[00:13:58] Speaker 02:
The petitioner is, if you're showing that something fits a particular claim, you have to address the language.

[00:14:06] Speaker 02:
And if only to say, everybody knows what resident means, it means whatever.

[00:14:11] Speaker 02:
And there's just nothing in the petition on that.

[00:14:14] Speaker 01:
Well, I think when we say these processes are on physically separate computers,

[00:14:19] Speaker 01:
on the computers and therefore resident on the computers.

[00:14:22] Speaker 01:
I can't imagine what other meaning that would have of a process running on a computer.

[00:14:28] Speaker 01:
It means resident on a computer.

[00:14:31] Speaker 01:
I mean, that was the theory of the petition.

[00:14:34] Speaker 04:
All right.

[00:14:35] Speaker 04:
You're about out of time here.

[00:14:37] Speaker 04:
I'm going to save some.

[00:14:39] Speaker 01:
I would like to save some.

[00:14:48] Speaker 04:
Okay, Ms.

[00:14:49] Speaker 04:
Spires.

[00:14:52] Speaker 03:
Good morning, Your Honor.

[00:14:54] Speaker 03:
While there are a lot of issues in these past appeals, the entirety of both appeals can and should be resolved by the fact that the Board aired a determining that Microsoft had met its burden of demonstrating that the version of CESA 97 1.0 that Microsoft put into evidence as exhibits 1006 to 12

[00:15:14] Speaker 03:
is the same version that the board found to be publicly available prior to the critical date.

[00:15:20] Speaker 03:
It's undisputed that Microsoft obtained Exhibits 1006-12 from a website that was not available prior to the critical date.

[00:15:28] Speaker 03:
And the board correctly held that the date that Exhibits 1006-12 were obtained is immaterial if they are digital copies of documents that are shown to have been publicly accessible before the critical date.

[00:15:42] Speaker 03:
But the analysis of this problem is where the board is.

[00:15:46] Speaker 03:
And this is because both Microsoft and the board have acknowledged that there are multiple versions of TIPA 97 version 1.0.

[00:15:54] Speaker 03:
But Microsoft failed to put that into practice.

[00:15:55] Speaker 04:
But you testified very clearly that the exhibits here were the version that was available in 1997.

[00:16:04] Speaker 04:
There's support for that on the cover page.

[00:16:09] Speaker 04:
And while some of the intervening pages seem to have a different caption, he explained why that was so and that it was a typo.

[00:16:21] Speaker 04:
To be sure, when you cross-examine him, he couldn't remember some of the details here.

[00:16:26] Speaker 04:
But why does that require that the board disbelieve him?

[00:16:33] Speaker 03:
Because the law is very clear.

[00:16:36] Speaker 03:
There has to be corroboration for the witness's testimony.

[00:16:39] Speaker 03:
And here, there simply is no 7.

[00:16:42] Speaker 04:
How can it not be corroborated?

[00:16:43] Speaker 04:
The date on the document is 1997.

[00:16:45] Speaker 04:
And it says 1.0.

[00:16:48] Speaker 03:
Your Honor, the date here actually means nothing.

[00:16:54] Speaker 03:
What has been established in the record is there are at least, that we know of, four versions of FIFA 97 version 1.0.

[00:17:03] Speaker 03:
All of these versions, from what we can see in the record, list that they are version 1.0,

[00:17:09] Speaker 03:
and list that they are published on October 10, 1997.

[00:17:15] Speaker 03:
So the date and the version number show us nothing about what Microsoft had to actually show, which was that, except it's 1006 to 12, are digital copies of documents shown to have been publicly accessible before the critical date.

[00:17:29] Speaker 03:
The board found there was something posted on the website, and that's what Dr. Bynum testified.

[00:17:36] Speaker 03:
But there is no evidence here, nothing to corroborate Dr. Finan's testimony, which I think the case law makes clear is suspect based on the 20 years that have elapsed, the fact that he could not have, he couldn't remember the details of the document.

[00:17:53] Speaker 03:
He was doing this from memory, from 20 years prior.

[00:17:56] Speaker 03:
He didn't review any other versions of the documents, despite the fact that there are hard copy versions of this,

[00:18:04] Speaker 03:
and even any 7.0 which after finding testified despite the fact that they have October 10th 1997 on their cover page he testified that those are versions that were from the November 28th 1997 publication they still say version 1.0 but we know that the date is unreliable he even testified to that fact

[00:18:26] Speaker 03:
And then the version in here is also unreliable because he testified that this is a different edited version.

[00:18:32] Speaker 03:
And we can see that from the table of contents that these are different versions.

[00:18:35] Speaker 03:
Now, Microsoft chose not to put those documents in evidence.

[00:18:39] Speaker 03:
The board found that Microsoft was not relying on those for public accessibility.

[00:18:44] Speaker 03:
They could have.

[00:18:45] Speaker 03:
We think it's a bit fishy that they didn't, that they got the covers and the tables of contents from these libraries in Europe but didn't do what every other case like this does to prevent public accessibility and just

[00:18:57] Speaker 03:
They put in the versions that are in the libraries, put in the declaration from the librarian there, putting in public accessibility, there you go.

[00:19:03] Speaker 03:
Why didn't we do that?

[00:19:04] Speaker 03:
Well, we don't know because we didn't put it in the record.

[00:19:07] Speaker 03:
We can speculate that probably the version there is not what the version that they put in.

[00:19:13] Speaker 03:
They're not the same.

[00:19:14] Speaker 03:
And the only thing we have to say that they are the same version.

[00:19:18] Speaker 03:
is Dr. Fine saying, I remember.

[00:19:20] Speaker 03:
20 years ago, I accessed this, and I remember, despite the fact that I can't remember any of the details from the document, which he was very clear about in his deposition.

[00:19:29] Speaker 03:
He says, I remember that what I'm looking at now is what I saw there.

[00:19:34] Speaker 03:
He doesn't have any indications to why he thinks that, but that's what he recalls.

[00:19:38] Speaker 03:
But this court, the Supreme Court, has been incredibly clear that when you're talking about a witness, and you're an interested witness, he is a paid witness, which, according to type right, is an interested witness,

[00:19:47] Speaker 03:
When you've got, 20 years later, an interest of witness that admits that they can't recall the details, that testimony really doesn't mean a lot.

[00:19:57] Speaker 03:
You've got to have a lot of corroboration.

[00:19:59] Speaker 03:
And here, the corroboration we have does not distinguish among the versions, because that's the entire problem here.

[00:20:05] Speaker 03:
We know we've got several versions.

[00:20:07] Speaker 03:
We have no idea which one was publicly available.

[00:20:11] Speaker 03:
The board just found there was a version.

[00:20:12] Speaker 03:
It was Microsoft's job, which the board said, to prove

[00:20:16] Speaker 03:
that the version that we have in evidence is the version that was publicly available.

[00:20:20] Speaker 03:
And there's just nothing to show that.

[00:20:22] Speaker 03:
Every version says the version 1.0.

[00:20:24] Speaker 03:
We've got the hard copy versions and the exhibit 1,000 states that say they are October 10, 1997, despite the fact that we know, or Dr. Fine even says that that's not true.

[00:20:36] Speaker 03:
That is not sufficient corroboration.

[00:20:39] Speaker 03:
This is, there's far less here than there is in many cases that this court has actually reversed findings.

[00:20:47] Speaker 03:
So for instance, we look at the Juicy Whip case.

[00:20:52] Speaker 03:
This court reversed the denial of Jamal in no anticipation when there were six interested witnesses.

[00:20:59] Speaker 03:
And it was eight to 12 years after, not 20.

[00:21:02] Speaker 03:
And then there were receipts showing that, OK, they did actually purchase the Hero's Bulls, but you couldn't exactly tell what's going on from those.

[00:21:12] Speaker 03:
The B.E.

[00:21:12] Speaker 03:
aerospace case by the discord, and affirming the board where it was just like this.

[00:21:25] Speaker 03:
There was a binder.

[00:21:26] Speaker 03:
It had been 30 years.

[00:21:27] Speaker 03:
They got multiple witnesses saying it's the same version, but no one could say.

[00:21:32] Speaker 03:
You know what?

[00:21:33] Speaker 03:
The page is being relied on here.

[00:21:35] Speaker 03:
We know it was in this version.

[00:21:36] Speaker 03:
There was nothing to support that and to corroborate that.

[00:21:38] Speaker 03:
Here, same thing.

[00:21:40] Speaker 03:
We don't see any of these other versions.

[00:21:42] Speaker 03:
There is nothing to corroborate the fact that what has been put in as exhibits 1,006 to 1,012 is what was publicly available.

[00:21:52] Speaker 03:
What was publicly available?

[00:21:53] Speaker 03:
It could have been the REST inversion that we know was out there, the REST inversion 1.0, but we can't access anymore, and Microsoft didn't put into evidence.

[00:22:01] Speaker 03:
There is a mutated version 1.0, which Dr. Finan claims is this version, but we don't know, it doesn't say that.

[00:22:08] Speaker 03:
And there are two different hard copy versions that have no independent, but we know are different than this.

[00:22:14] Speaker 03:
There are all these different types of versions, where at best, a one in four chance, that is not make yourself meaning inferno, showing that these are digital copies of documents that are shown to be publicly accessible.

[00:22:26] Speaker 03:
And talking about the versioning, I think you mentioned that there is some versioning that's off,

[00:22:30] Speaker 03:
Every other page of the exhibit in the evidence are labeled as version 244.

[00:22:36] Speaker 03:
And the only explanation that we have for this is Dr. Finan, again, saying, oh, well, that was a typo.

[00:22:42] Speaker 03:
How does he know?

[00:22:43] Speaker 03:
He did not create these documents.

[00:22:44] Speaker 03:
He has no personal knowledge about whether or not that's a typo.

[00:22:47] Speaker 03:
He admits that he didn't compare these to any other version.

[00:22:51] Speaker 03:
And so now we're using Dr. Finan's testimony to shore up something that's supposed to corroborate Dr. Finan's testimony.

[00:23:00] Speaker 03:
It's entirely circular.

[00:23:01] Speaker 03:
I think the case law is clear.

[00:23:04] Speaker 03:
All the cases cited in this, in our briefing, Barb Wired, Juicy Whip, Woodland Trust, Roscoe, Type Right, VE Aerospace, Finnegan, MediCamp, it goes on.

[00:23:16] Speaker 03:
The case law from this court and from the Supreme Court is clear that under those cases, there has not been the corroboration that is required for Dr. Finan's testimony to prove public accessibility.

[00:23:32] Speaker 03:
And so that does away, that entire element, if you find in IPH favor, does away with the entirety of the appeals in this case.

[00:23:41] Speaker 03:
Because every issue on both cross appeals relies on the combination of KISS and BIPA 97.

[00:23:46] Speaker 03:
So if BIPA 97 is not prior, then we're done.

[00:23:52] Speaker 03:
But should your honors not find in IPH favor for that,

[00:23:58] Speaker 03:
I think the arguments that opposing counsel talked about, I'm happy to answer any questions from your honors questions.

[00:24:05] Speaker 03:
I think you get the issues and why Microsoft's arguments are not very strong on Microsoft's appeal.

[00:24:15] Speaker 03:
Regarding IPA's appeal, the first issue I'd like to talk about is the KISS meta agent.

[00:24:22] Speaker 03:
The board found that KISS's meta agent can be a part of the claim facility.

[00:24:28] Speaker 03:
But this is directly contrary to the explicit language of the specification of the patents.

[00:24:37] Speaker 03:
The specification defines meta-agents as mutually exclusive from facilitators and facilitator agents.

[00:24:45] Speaker 03:
Specifically, the specification defines meta-agents as client agents.

[00:24:51] Speaker 03:
And it does so by stating that the variety of possible client agents is essentially unlimited.

[00:24:58] Speaker 03:
But some typical categories of client agents would include application agents and meta-agents.

[00:25:05] Speaker 03:
And then as that goes on to say, client agents are all agents that are not facilitators.

[00:25:12] Speaker 03:
So we've got client agents, a subset of that are meta-agents.

[00:25:18] Speaker 03:
And then we've got facilitators, which are all agents that are not client agents.

[00:25:23] Speaker 03:
This is a bin diagram that never intersects.

[00:25:26] Speaker 03:
So whether you view this as like psychography or as disclaimer, the specification has been very clear that a meta agent cannot be a part of the claim facilitator.

[00:25:41] Speaker 03:
Now, Microsoft doesn't really address this.

[00:25:44] Speaker 03:
It just says, no, actually, this argument was never presented.

[00:25:49] Speaker 03:
It was.

[00:25:51] Speaker 03:
First, the board ruled on this issue.

[00:25:55] Speaker 03:
And the case law is clear that the board rules on the issue has not been waived.

[00:26:00] Speaker 03:
And so the board ruled that IPA's argument is that the KISS meta-agent cannot be part of the facilitator agent in the combined KISS BIPA 97 system.

[00:26:12] Speaker 03:
IPA also made the argument.

[00:26:16] Speaker 03:
At appendix 47.15 to 47.16, IPA said that the petitioner has failed to show that the combination of KISS and BIPA

[00:26:25] Speaker 03:
the skills of facilitator agents.

[00:26:26] Speaker 03:
So they're talking about the combination.

[00:26:29] Speaker 03:
Because the 560 patent also applies to the other, expressly contrast the role of facilitator agent with meta agent.

[00:26:37] Speaker 03:
Also, at 4797 to 4798, in October 10, IPA wrote that to the extent the petitioner claims that the KISS agent service layer, which the portion of the knowledge

[00:26:50] Speaker 03:
for the queries is a part of the facilitator.

[00:26:53] Speaker 03:
The petitioner is clearly wrong.

[00:26:54] Speaker 03:
The 560 patent distinguishes between the facilitator agent and the client agent.

[00:26:58] Speaker 03:
So IP did make this argument before the board, and the board simply ignored it and ruled to the contrary to be exactly the opposite of what respect says.

[00:27:16] Speaker 03:
In addition, for both satisfaction plans,

[00:27:20] Speaker 03:
When we're talking about this element, this is one where the board clearly disregarded the patent invention as a whole.

[00:27:26] Speaker 03:
Under KSR, a patent is comprised of several elements.

[00:27:31] Speaker 03:
It's not proved obvious merely by demonstrating that each of its elements was independently known as art.

[00:27:36] Speaker 03:
Failure to consider the claimed invention as a whole is an error of law.

[00:27:41] Speaker 03:
But despite this, the board divided up the patent and just decided the

[00:27:48] Speaker 03:
goal satisfaction plan out deciding first reasoning, which is a limitation of goal satisfaction plan.

[00:27:57] Speaker 03:
And the board acknowledged that the recited goal satisfaction plan is constrained by specific limitations in the claims, including using reasoning to accomplish certain goals.

[00:28:12] Speaker 03:
In summarizing the party's arguments regarding the goal satisfaction plan, the board acknowledged the IPA contended it just does not teach the claim goal satisfaction because it doesn't disclose the use of reasoning, optimization, or taking into account any advice, parameters, or constraints.

[00:28:29] Speaker 03:
But despite this, the board ended up deciding on the goal satisfaction plan based solely on IPA's claim construction arguments for goal satisfaction plan.

[00:28:41] Speaker 03:
which argued that it meant a plan for the satisfaction of a complex goal and expression in an optimal or near optimal manner that is consistent with advice, parameters, or constraints.

[00:28:51] Speaker 03:
This construction did not mention reasoning.

[00:28:54] Speaker 03:
So then when the board decided that it disagrees with IPA's plain term goal satisfaction plan, as limited as IPA contends, and so for the same reasons it disagrees with IPA's argument that KISS does not disclose the goal satisfaction plan if IPA in claim one, the board

[00:29:10] Speaker 03:
did not decide or rule on IPA's argument.

[00:29:14] Speaker 03:
It was a three-pronged argument, remember, that KISS did not disclose the use of any reasoning, optimization, or taking into account any advice, parameters, or constraints.

[00:29:23] Speaker 03:
The claim construction talked about elements two and three of IPA's argument, but did not in any way take into account IPA's argument that KISS does not exclude the use of reasoning.

[00:29:37] Speaker 03:
So Microsoft says, oh, no problem, no problem.

[00:29:39] Speaker 03:
They went and did it later.

[00:29:40] Speaker 03:
Well, yes, they went and did it later after they had already decided that a goal satisfaction plan had been disclosed in kids.

[00:29:48] Speaker 03:
And that doesn't work.

[00:29:49] Speaker 03:
And then the case law is very clear that you cannot decide an issue without having decided all some issues.

[00:30:00] Speaker 03:
You have to wait.

[00:30:01] Speaker 04:
OK, Ms.

[00:30:02] Speaker 04:
Myers, I think we're out of time.

[00:30:04] Speaker 04:
Thank you.

[00:30:05] Speaker 04:
We'll give you a minute for rebuttal.

[00:30:08] Speaker 04:
And I will hear from Mr. McAuliffe.

[00:30:11] Speaker 04:
And I think you need to confine yourself to the cross-appeal, since I didn't hear her address the main appeal.

[00:30:17] Speaker 01:
I understand, Your Honor.

[00:30:18] Speaker 01:
Thank you.

[00:30:20] Speaker 01:
If I may address the publication issue, that is, IPA disputes whether exhibits 1,000.

[00:30:28] Speaker 04:
Three minutes.

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

[00:30:31] Speaker 01:
Exhibits 1006 to 1012 are the version of the FIPA standard that was publicly available before the critical date.

[00:30:39] Speaker 01:
That is, of course, a fact issue.

[00:30:42] Speaker 01:
And the board is the finer fact in a proceeding like this.

[00:30:45] Speaker 01:
And they considered the evidence, lots of evidence, and found against IPA.

[00:30:51] Speaker 01:
And there was plenty of evidence to support that finding.

[00:30:54] Speaker 01:
As Judge Dyke, as you pointed out, Dr. Finan testified very clearly

[00:30:59] Speaker 01:
that those exhibits were the ones that were available.

[00:31:02] Speaker 01:
And just to point out, Dr. Finan was deeply involved in the development and drafting of the FIPA 97 standard.

[00:31:11] Speaker 01:
He was a member of that organization.

[00:31:14] Speaker 01:
He attended meetings.

[00:31:15] Speaker 01:
He commented on drafts.

[00:31:17] Speaker 02:
Were you here for the previous argument?

[00:31:19] Speaker 02:
I was.

[00:31:19] Speaker 02:
So if one applied the kind of standard of non-testimonial corroboration that was being discussed

[00:31:29] Speaker 02:
How would that work here?

[00:31:35] Speaker 02:
What is the non testimonial corroboration?

[00:31:40] Speaker 02:
And then obviously the date is maybe something but it's at least problematic because it seems to appear on much later documents the same day.

[00:31:49] Speaker 01:
There's six pieces of evidence and another testimonial piece of evidence from a different witness.

[00:31:55] Speaker 01:
First of all the date on the face of the documents 10 October 1997 corroborates Dr. Finans testimony.

[00:32:00] Speaker 01:
Second of all, the title of the documents corroborates Dr. Finan's testimony.

[00:32:05] Speaker 01:
The testimony of Dr. Lieberman.

[00:32:06] Speaker 02:
The title is?

[00:32:08] Speaker 01:
The title is FIPA 97 version 1.0.

[00:32:11] Speaker 01:
The testimony of Dr. Lieberman, two points there, that recalls FIPA 97 version 1.0 being available from the FIPA 97 website in late 1997 and, importantly,

[00:32:23] Speaker 01:
Dr. Lieberman testifying that he accessed those exhibits.

[00:32:27] Speaker 02:
Dr. Lieberman.

[00:32:28] Speaker 01:
Lieberman.

[00:32:29] Speaker 02:
I'm sorry.

[00:32:29] Speaker 02:
Is your paid witness?

[00:32:31] Speaker 01:
He was our technical witness.

[00:32:32] Speaker 01:
That's correct.

[00:32:32] Speaker 01:
But he was knowledgeable in this area and knowledgeable of the FIPA proceedings.

[00:32:38] Speaker 02:
That would not constitute non-testimony.

[00:32:40] Speaker 01:
That's right.

[00:32:40] Speaker 01:
And that's why I pointed out.

[00:32:41] Speaker 01:
But I wanted to point it out because I don't want this to get lost.

[00:32:45] Speaker 01:
If you look at his testimony at Joint Appendix page 8691,

[00:32:49] Speaker 01:
He says, I accessed FIPA 97, All One Word, in late 1997.

[00:32:55] Speaker 01:
In the proceedings below, FIPA 97, All One Word, was what we used to mean exhibits 1006 through 1012.

[00:33:04] Speaker 02:
Did you have some more non-testimony?

[00:33:07] Speaker 01:
Yes, I did.

[00:33:08] Speaker 01:
The hard copy version, published in late 1997, is corroborative.

[00:33:12] Speaker 01:
The fact that the same documents.

[00:33:14] Speaker 02:
And that's not actually in the record, right?

[00:33:16] Speaker 01:
Joint appendix, well, it's referenced at joint appendix 896.

[00:33:19] Speaker 02:
But the book, I think, is not actually in the record.

[00:33:23] Speaker 01:
I think that's right.

[00:33:24] Speaker 01:
OK.

[00:33:25] Speaker 01:
The fact that the same documents are available from FIPA today and characterized at FIPA as version 1.0.

[00:33:32] Speaker 01:
Those same exhibits are available today.

[00:33:34] Speaker 01:
That's corroborative.

[00:33:35] Speaker 01:
The internet archive record.

[00:33:37] Speaker 01:
showing that those exhibits were on the FIPA website in 2000.

[00:33:42] Speaker 01:
That's corroborative.

[00:33:43] Speaker 01:
And finally, just the whole course of conduct of the FIPA organization in developing standards and then immediately publishing them is further corroborative of Dr. Finan's testimony that that's what happened in October of 1997 with those exhibits.

[00:34:00] Speaker 04:
OK.

[00:34:01] Speaker 04:
I think we're out of time.

[00:34:02] Speaker 04:
Thank you.

[00:34:03] Speaker 04:
Thank you, Your Honor.

[00:34:04] Speaker 04:
Ms.

[00:34:04] Speaker 04:
Squires, we'll give you a minute

[00:34:07] Speaker 04:
This one.

[00:34:10] Speaker 03:
Thank you, Dennis.

[00:34:15] Speaker 03:
I think the thing that Microsoft's council just mentioned as corroboration has nothing to do with corroboration of the issue on appeal, which is whether the documents presented in exhibits 1,006 to 12 are the same version that was publicly accessible in October 1997.

[00:34:37] Speaker 03:
Everything we just talked about went to whether there was a version of FIFA 97 publicly accessible before the critical date.

[00:34:46] Speaker 03:
We have not appealed the issue of whether there was a version available.

[00:34:50] Speaker 03:
We have appealed the issue of whether the version that is in evidence is publicly available, which the board found has to also be found.

[00:34:58] Speaker 04:
Is there any evidence that the documents labeled 1.0 differ in any material respect from each other?

[00:35:07] Speaker 03:
We know that they differ because the table of contents is different.

[00:35:11] Speaker 04:
No, I ask you to differ in any material respect.

[00:35:15] Speaker 03:
We actually don't know because Microsoft did not put into evidence any of the other versions that are available.

[00:35:22] Speaker 03:
They didn't put into evidence the custom version.

[00:35:24] Speaker 03:
There's just a screenshot showing there was one.

[00:35:26] Speaker 03:
They didn't put into evidence the hard copy versions.

[00:35:29] Speaker 03:
All they did is put into evidence the table, the cover, and the table of contents of each.

[00:35:34] Speaker 03:
So those are available to you?

[00:35:37] Speaker 04:
Those are available to you too, right?

[00:35:40] Speaker 03:
Yes, they were.

[00:35:41] Speaker 03:
But that, as I'm sure Your Honor is aware, is not IPA's burden.

[00:35:45] Speaker 03:
Microsoft is the one that has the burden, always has the burden, of proving prior art and proving that prior art was publicly accessible.

[00:35:53] Speaker 03:
Microsoft did not do that in this case.

[00:35:56] Speaker 03:
And so they failed to meet their burden.

[00:35:59] Speaker 04:
OK.

[00:35:59] Speaker 04:
Thank you, Ms.

[00:36:00] Speaker 04:
Morris.

[00:36:00] Speaker 04:
Thank both counsel.

[00:36:01] Speaker 04:
The case is submitted.

[00:36:03] Speaker 03:
Thank you, Your Honor.