[00:00:00] Speaker 04: Our next case for argument is 20-1994, Roby versus Hirschfeld. [00:00:06] Speaker 04: Mr. Jaffrey, please proceed. [00:00:08] Speaker 00: Good morning, Chief Judge Moore, and may it please the court. [00:00:11] Speaker 00: The C reference has a very different purpose than Roby's patent, and therefore does not disclose the patent's claim limitations or render them obvious. [00:00:19] Speaker 00: Specifically, C's notification symbol is there for advertising purposes. [00:00:24] Speaker 00: It's made in order to encourage users to join C's premium club. [00:00:30] Speaker 00: And therefore, as an advertisement, the notification is made to everyone. [00:00:35] Speaker 00: And it is only after displaying that notification, that C system determines if a viewer is a member of the club, and therefore, special features like rewinding of the program is available. [00:00:46] Speaker 00: That's fundamentally different than Roevey's patented technology, which does not use notification for advertising. [00:00:53] Speaker 00: And that distinction is found in the claims. [00:00:56] Speaker 00: The claims require that based on determining that the archived copy is available to the user after the start time, cause an indication corresponding to the archived copy to be displayed. [00:01:08] Speaker 00: There's a cause and effect here. [00:01:10] Speaker 00: You have to first determine whether or not a user, determining that the archived copy is available to the user after the start time, and in response, [00:01:21] Speaker 00: That's when you display the indication. [00:01:23] Speaker 00: But that's exactly backwards from C. C always displays the indication to everyone. [00:01:28] Speaker 02: And so therefore, that causality that's required by the claim limitation is broken in C. Can I just ask you about the piece of the board decision that I've been focusing on? [00:01:41] Speaker 02: It calls the complementary access teaching. [00:01:45] Speaker 02: Is that the same as the kind of NBC CBS embodiment? [00:01:48] Speaker 00: That's not quite. [00:01:50] Speaker 00: The complementary embodiment is a question of you can sometimes, she wants to get lots of people to join the club, so they'll give you away some of the programming. [00:02:00] Speaker 01: OK. [00:02:00] Speaker 02: Well, maybe the thing that I'm focused on is the idea that the system compact cast whoever decides for this day, everybody [00:02:12] Speaker 02: gets to is automatically authorized to take advantage of the options we give in the notifications. [00:02:21] Speaker 02: Why doesn't that satisfy the claim? [00:02:24] Speaker 02: Because the authorization has been made on Sunday for the Monday day of everybody can get. [00:02:35] Speaker 00: Because, Your Honor, that checking, the requirement of determining whether or not [00:02:40] Speaker 00: that the program is available, even in the promotional complementary time period, still occurs after the indication is made. [00:02:48] Speaker 00: And we can see that if we look at Appendix 1024. [00:02:55] Speaker 00: This is, on 1024, is a flow chart that displays the complementary, the promotional information. [00:03:02] Speaker 01: This is the Figure 7. [00:03:03] Speaker 00: Yes, it is. [00:03:04] Speaker 00: And you'll see that there's figures, that it refers to these four letters up here, A, B, C, D. [00:03:11] Speaker 00: B, A is where the indication is sent. [00:03:15] Speaker 00: So indication is sent at 764 in A. That's when you'll get the notification. [00:03:23] Speaker 00: The promotional question of whether somebody gets access to this free programming, you can see it occurs in two ways. [00:03:32] Speaker 00: One is it occurs later on in [00:03:35] Speaker 00: 752 of that figure 7. [00:03:38] Speaker 00: You'll see 752 is at the bottom. [00:03:40] Speaker 00: And that's questioning, OK, are you going to get free access? [00:03:43] Speaker 00: But A has already happened. [00:03:45] Speaker 00: The indication's already gone through up above. [00:03:48] Speaker 00: And so there's always going to be, regardless of whether we decide, oh, everybody's going to get free access, [00:03:56] Speaker 00: It's that decision-making point still always happens after the indication is made. [00:04:02] Speaker 00: And so therefore, the causality that's required by the claim of the 741 patent is broken. [00:04:07] Speaker 00: If everybody's getting an indication, it can't possibly be the case that based upon [00:04:16] Speaker 00: determining that the archived copy is available to the user after the start time cause an indication. [00:04:21] Speaker 00: That cannot happen because everybody's getting the indication. [00:04:26] Speaker 00: And furthermore, of course, Roe V noted in the briefing that this complementary access was only first time ever demonstrated [00:04:35] Speaker 00: or ever pointed to in Comcast Reply Brief. [00:04:38] Speaker 01: Right, so you have a kind of procedural... We have a procedural... I guess focused on the substance. [00:04:43] Speaker 00: Right. [00:04:44] Speaker 00: But on the substance, it still doesn't help them because you're still getting your indication no matter what happens, regardless of whether or not later on you're either provided for access. [00:04:54] Speaker 00: And remember, everything still goes, if you look at this flowchart going around, everything still goes through these B, Cs and Ds. [00:05:02] Speaker 00: And in B, C and D, [00:05:04] Speaker 00: That is where the user is determined at 786, for example, that a person is a member of the club, and therefore the program is available to them. [00:05:13] Speaker 00: There simply is no instance in which the determination, are you a member of the club, is this program available to you, happens first before the indication is made. [00:05:23] Speaker 00: And therefore, by definition, the indication cannot possibly be based upon that determination. [00:05:30] Speaker 03: Why isn't, based upon the board's claim construction, C's just sending it to everybody because it is available to everybody, even though it may take some additional steps for certain people that aren't part of the club? [00:05:48] Speaker 00: See in order to determine whether it actually is available to someone that step is always done in C They see always has that question is this program available and you can always see it It's in these figures B C and D and that's exactly what Comcast pointed to it [00:06:04] Speaker 00: But that's always done after the fact. [00:06:06] Speaker 00: It's never done beforehand. [00:06:08] Speaker 00: And the reason why it's done differently at C, of course, is because C's indication is in advertising. [00:06:13] Speaker 00: Join my club. [00:06:14] Speaker 00: And we can see this if I take a look. [00:06:17] Speaker 03: But let me just, because I want you to get back to the board's claim construction, which limits this to time and things like that. [00:06:24] Speaker 03: Because it seems to me that that's part of what your argument is. [00:06:26] Speaker 03: But you have an appeal of claim construction. [00:06:29] Speaker 03: What's wrong with viewing C as saying, [00:06:32] Speaker 03: We've determined that this group of users we're sending the advertisement to can access this archival copy. [00:06:40] Speaker 03: And so we're going to send this notification. [00:06:43] Speaker 03: Now for the club members, they do it automatically. [00:06:46] Speaker 03: For somebody that's not a club, they're going to get a second pop-up screen that says they have to take these steps to get it. [00:06:51] Speaker 03: But the determining whether it's available is done prior to sending out the advertisement in some general sense that they're sending it only to people that can access it. [00:07:03] Speaker 00: Because I can show, demonstrate why that can't possibly be true. [00:07:07] Speaker 00: Because take, for example, the instance where C's system was launched on day one. [00:07:12] Speaker 00: Nobody is a member of the club. [00:07:14] Speaker 00: Zero people are the member of the club, so therefore zero people have the program available to them. [00:07:20] Speaker 03: Everybody they send the advertisement to is potentially a member of the club because they're on the right computer networks or the right system. [00:07:27] Speaker 03: I understand this is not the way you view this should operate, but what I'm trying to get at is are you making a claim construction argument here about what it means to be available? [00:07:39] Speaker 00: I think, Your Honor, that the way the posture of the case, because we all agreed, we thought we all agreed what available meant, including Comcast meant when they were discussing the agency. [00:07:49] Speaker 03: Well, can you show that to me? [00:07:49] Speaker 03: Because I didn't find that that was the board made a construction on any of that. [00:07:54] Speaker 00: No, the board, in fact, agreed with Roevey's claim to construction. [00:07:57] Speaker 00: Roevey won the claim to construction. [00:07:59] Speaker 03: What claim construction that Roevey agreed to, or that the board agreed to of yours, suggests that this is the definition of available? [00:08:09] Speaker 03: Well, the definition of a- Because the board's construction, as far as I can tell, just says, available to user after the start time means available to user at times other than the scheduled broadcast. [00:08:20] Speaker 00: Exactly. [00:08:20] Speaker 00: And that's fine. [00:08:21] Speaker 00: We're perfectly happy with that construction. [00:08:24] Speaker 00: The problem is it's the next limitation when it says, based upon that determination, you send out an indication. [00:08:30] Speaker 00: So the problem is not- But again, let me ask you this. [00:08:35] Speaker 03: Under C, they have this database of things that they can make this functionality available to users. [00:08:48] Speaker 03: They send out an advertisement because they have this hypothetical universe of some members and other potential members, and they say, this could be available to you. [00:08:58] Speaker 03: Why isn't that determining that an archive copy is available to this user? [00:09:04] Speaker 03: even though it may take some additional steps for it to become immediately available. [00:09:10] Speaker 00: Well, several points around it. [00:09:12] Speaker 00: Then in that instance, the indication was not based upon that determination. [00:09:15] Speaker 00: It was just sent. [00:09:17] Speaker 00: So it's not just a matter of time ordering. [00:09:19] Speaker 00: I'm sorry, say that again. [00:09:21] Speaker 00: Sure. [00:09:23] Speaker 00: The claims require that, based on determining the archived copies available to the user at the start time, cause an indication. [00:09:30] Speaker 00: There's still no cause. [00:09:31] Speaker 00: Even if you say, well, we send everything out and we know eventually somebody's going to be able to use it. [00:09:36] Speaker 03: I still don't understand that. [00:09:37] Speaker 03: I mean, they're sending it out to all their users based upon their determination that this program is available. [00:09:45] Speaker 00: No, they're sending it out because they would hope that some point somebody pays and makes it available to that specific user. [00:09:53] Speaker 03: So the reason why it based upon- But it is available to that specific user if they pay. [00:10:00] Speaker 00: Yes, but the indication can't be based until they actually pay. [00:10:06] Speaker 00: That's the point it becomes available. [00:10:07] Speaker 00: I think you're arguing about what it means to be available. [00:10:12] Speaker 00: We may well be arguing how it's what is [00:10:15] Speaker 00: available to be clear comcast expert [00:10:18] Speaker 00: agreed with us on this point. [00:10:20] Speaker 00: So when he said, when we asked him about this question, he says, and this is at A 3.1. [00:10:27] Speaker 03: Well, I understand that that seems to be the dispute. [00:10:29] Speaker 03: But if the dispute is what's the proper construction of available, I didn't read that anywhere in your brief. [00:10:35] Speaker 00: That's because we believe that available is, under the plain terms of the language, what the board found. [00:10:43] Speaker 00: What we're saying is that the based upon language is the problem. [00:10:47] Speaker 00: And the reason the board went astray, and there's not substantial evidence for that, is because the board created a straw man out of our argument and said, [00:10:55] Speaker 00: And actually, what you're arguing implicitly is that there needs to be this prepayment and then base its decision upon that. [00:11:03] Speaker 00: So the reason why there was the ultimate problem with the board's decision there's no substantial evidence is because they set up the straw man, knocked it down, without actually addressing this causality issue that we're addressing. [00:11:16] Speaker 00: So my point being is there's nothing in the board's decision [00:11:19] Speaker 00: that is supportable, regardless of whether it's viewed as a claim construction error or substantial evidence error, because what the board was doing was- Well, let me ask you this. [00:11:27] Speaker 03: If I think there is substantial evidence for the board's conclusion, even though there may be a lurking claim construction issue, if you didn't appeal that lurking claim construction issue, aren't you just out? [00:11:39] Speaker 00: I don't think that's correct, Your Honor, because I think that to the extent the board said that your position requires there be pre-impayment under this straw man it's set up, and said your claim destruction therefore requires that, or the claim destruction ought not require that, that is both a failure under [00:12:03] Speaker 00: under a claim instruction, which we didn't appeal. [00:12:06] Speaker 03: But you didn't appeal that. [00:12:07] Speaker 03: Right. [00:12:07] Speaker 03: That's what I'm asking. [00:12:08] Speaker 03: You didn't appeal that. [00:12:09] Speaker 00: But what I'm saying, that's also a substantial evidence problem, because you're looking at a argument that simply was not made by Roe v. Below. [00:12:20] Speaker 00: So to put it more precisely, [00:12:23] Speaker 00: By appending on this requirement, or believing that Roe v. was making this argument that it was not making, the board. [00:12:30] Speaker 03: Look, here's the thing. [00:12:31] Speaker 03: We get these cases all the time where the patent owner says, or somebody says, the board made an incorrect claim construction. [00:12:41] Speaker 03: And it's clear from the way that it was. [00:12:44] Speaker 03: Even though everybody agreed on the claim construction, from the way the board applied it, it was clear they applied a different claim construction. [00:12:52] Speaker 03: And most of the times, we don't let people do that. [00:12:56] Speaker 03: But when you actually have a case where that appears to be done, why didn't you say the board is applying an incorrect claim construction here, that available means something different than just available to the user based upon time? [00:13:14] Speaker 00: Because I think that we saw this as a failure not of the available, but as a failure of the base upon language, the causality requirement that the board simply ignored, that they just didn't find any evidence on that separate base upon limitation. [00:13:30] Speaker 00: So regardless of whether or not the C eventually finds and determines that a program is available to the user, that's absolutely clear. [00:13:40] Speaker 00: The problem is not it is that the [00:13:43] Speaker 00: that the indication is never based upon that determination. [00:13:47] Speaker 03: Is C sending out just general commercial advertisements for any program, and then sometimes that program is not available at all? [00:13:58] Speaker 03: Where is it determining that a program that somebody clicks on is stored in their iCarve somewhere, and that it is potentially available to that user? [00:14:08] Speaker 00: They're sending, if you are on a channel, for example, watching some program, it will send you the indication saying, join the club and then you can watch this program. [00:14:18] Speaker 03: Yes, but is it going to do that for a program that's not available at all? [00:14:21] Speaker 00: In the sense that it will send it to people to whom it is not available. [00:14:24] Speaker 03: No, no, no, no. [00:14:25] Speaker 03: That's not what I'm asking. [00:14:26] Speaker 03: So let's just say I'm watching a show on the Food Network and C sends me [00:14:36] Speaker 03: and add saying, you know, this is available for whatever the functionality here is to start over or whatever. [00:14:45] Speaker 03: Now, is that based on the fact that they actually know that that program has that functionality? [00:14:51] Speaker 00: They know, C will know that the program is stored. [00:14:56] Speaker 00: Right. [00:14:56] Speaker 03: So C knows that that program is available to be used with this functionality. [00:15:01] Speaker 03: They don't. [00:15:02] Speaker 03: And your problem is, I guess, that [00:15:06] Speaker 03: They don't care if this specific user can access it immediately. [00:15:10] Speaker 03: They just know that it's available to some users if they're already a member, or if they're not a member, they can access it later with additional steps. [00:15:19] Speaker 03: Why isn't that still sending a notification based upon the program's availability that the user can access this functionality? [00:15:29] Speaker 00: Because, Your Honor, that means that you're not having an indication based upon available to the user that you looked up. [00:15:37] Speaker 00: It's simply the thought that perhaps this might be available. [00:15:41] Speaker 03: Why not? [00:15:41] Speaker 03: Their view is that it's available to all users accessing this program through a certain system. [00:15:48] Speaker 03: Some of them may have to join a club, but some of them can join it immediately. [00:15:52] Speaker 03: But it's still available to every single user. [00:15:55] Speaker 00: But then by that definition, existence means available. [00:15:58] Speaker 00: If something exists, then it is available. [00:16:00] Speaker 03: But we're under BRI here, and you didn't further define what it means to be available. [00:16:06] Speaker 00: But their own expert admits that existence doesn't equal availability. [00:16:10] Speaker 00: And before the IPC, Comcast argued that the question is not whether the copy exists, but whether it's available to the user. [00:16:17] Speaker 00: So the reason this was not teed up in the IPR was because we had all believed we were on the same page as to what availability meant. [00:16:26] Speaker 02: Can I just ask you one question? [00:16:29] Speaker 02: Did the board determine, or is it agreed by everybody, what exactly in C constitutes the asserted indications in the effort to move this claim on to C? [00:16:44] Speaker 00: So the answer to your question is, I believe everyone is in agreement that 764, the display notification system that is in figure 7A on appendix 1025, [00:16:56] Speaker 00: Is that notification symbol? [00:16:58] Speaker 00: And that's the point. [00:16:59] Speaker 02: I'm sorry, I don't think I got your answer. [00:17:02] Speaker 00: Sure. [00:17:04] Speaker 02: You said indications, I think you said indications are advertisements. [00:17:09] Speaker 00: Yes. [00:17:09] Speaker 02: How do we know that? [00:17:10] Speaker 00: Oh, you can see that. [00:17:15] Speaker 00: That's what C says at 1059. [00:17:21] Speaker 00: And you'll see this on paragraph 85. [00:17:27] Speaker 02: And in Comcast's petition, that was the mapping? [00:17:31] Speaker 02: Yes. [00:17:31] Speaker 02: OK. [00:17:34] Speaker 04: OK. [00:17:34] Speaker 04: Thank you, Mr. Joffrey. [00:17:37] Speaker 04: OK. [00:17:38] Speaker 04: Please proceed, Ms. [00:17:39] Speaker 04: Lateef. [00:17:39] Speaker 05: Thank you, Your Honor. [00:17:42] Speaker 05: And good morning. [00:17:43] Speaker 05: May it please the court? [00:17:45] Speaker 05: Substantial evidence supports the board's findings that Robius claims are unpatible and obvious in relation to fee alone or in combination with other references that are not at issue in this appeal. [00:17:55] Speaker 05: To your honest point, this is a situation where Roe v. proposed a claim construction that the board adopted. [00:18:04] Speaker 05: And in analyzing that claim construction of the determining location, it's found that c. discloses that location when the system determines that a club copy is stored. [00:18:15] Speaker 05: There is no further requirement that there be some situation where the user has offset array. [00:18:24] Speaker 05: at a prepayment of some form. [00:18:26] Speaker 05: And now before this court, Roby's trying to narrow that direction and try and insert some sort of prepayment or some sort of white assertion, meaning that this user already had active. [00:18:40] Speaker 04: But Ms. [00:18:41] Speaker 04: Lateef, on page 813 of the board's opinion, the board explains the patent owner's argument in this case as implicitly arguing that available to a user requires advanced purchase by the user. [00:18:54] Speaker 04: And then the board goes on to say that require, however, is not supported by the language of the claims. [00:18:59] Speaker 04: I guess I feel like the board kind of did treat this as a claim construction question. [00:19:05] Speaker 04: And there was some dispute between the parties and the board about what available to a user means. [00:19:12] Speaker 05: Is that not a correct understanding of the board's opinion? [00:19:25] Speaker 05: that there needed to be an additional prepayment. [00:19:27] Speaker 05: The board is saying, no, that is not required here based on the construction, and that is not required based on not only the way the plan is written, but there's also nothing in the specification that supports this narrow reading. [00:19:40] Speaker 05: It's almost as if suddenly when we have this piece of prior art that we [00:19:45] Speaker 05: On that one occasion, they now want to insert this additional requirement that's just on there. [00:19:50] Speaker 04: I think, Ms. [00:19:51] Speaker 04: Lateef, as I understand Roevey's argument, it's that the claim itself is what requires this approach. [00:20:01] Speaker 04: Because the claim, which says based on determining that an archived copy is available to the user, caused an indication to the archived copy to be displayed. [00:20:13] Speaker 04: So I think that if I understand their argument correctly, they're arguing the word available to the user means what it means. [00:20:22] Speaker 04: But then there's this cause and effect component of that claim limitation, which I see myself in the language of the claim. [00:20:30] Speaker 04: So what's wrong with their argument that there has to be this cause and effect? [00:20:36] Speaker 04: It has to be available to the user such that it could be accessed by that user. [00:20:41] Speaker 04: And that only when it's determined that it's available to the user, is there an indication then sent to that user. [00:20:49] Speaker 05: There's nothing wrong with that reading. [00:20:51] Speaker 05: The issue is that the board has substantial evidence to show that in C, this indication is called based on that determination. [00:21:00] Speaker 05: And that determination is made when C system checks a database and determine that there is a stored club copy. [00:21:08] Speaker 05: And once that determination is made, [00:21:10] Speaker 05: The indication is sent. [00:21:13] Speaker 04: If there is no story copy, there is no indication. [00:21:17] Speaker 04: I thought everybody agreed that this can't just mean archived. [00:21:20] Speaker 04: So it just can't mean archived. [00:21:23] Speaker 04: Something's available to the user if it's automatically archived. [00:21:25] Speaker 04: That would render the claim language entirely superfluous, right? [00:21:29] Speaker 04: Because you're trying to argue that if something is archived, regardless of how limited the access might be in terms of who might get it, then it's automatically available to all users to whom an indication is sent. [00:21:42] Speaker 04: That can't be right, because that would read out the whole limitation of available to the user, because the claim already requires archived. [00:21:51] Speaker 05: Right, but what the claim says is based on determining that the archived copy is available to the user, this indication is set. [00:21:58] Speaker 04: Right, based on determining that the archived copy is available to the user. [00:22:01] Speaker 04: If your definition of available to the user includes everything that's archived, you've just rendered that limitation entirely superfluous. [00:22:10] Speaker 05: No, the board is saying that this goes out to club users and also goes out to others who are non-club users. [00:22:18] Speaker 05: When the system says, OK, there is [00:22:21] Speaker 05: There's a broadcast show being displayed, and now the system looks at it, and it says, is this saved? [00:22:30] Speaker 05: Because not all of them are. [00:22:32] Speaker 05: And if they find one that is, it will send a notification. [00:22:37] Speaker 04: Well, I understand, but doesn't the fact that it's saved, isn't that the definition of archived? [00:22:42] Speaker 04: What does the word archived mean, if not that this is actually saved? [00:22:46] Speaker 05: It means that it's stored. [00:22:47] Speaker 05: It means that it's saved. [00:22:48] Speaker 04: Right. [00:22:49] Speaker 04: So the claim accounts for the saving of the object because it requires us the starting point that there's a determination that there's an archived copy somewhere. [00:22:58] Speaker 04: Then the claim further requires that that archived copy be available to the user. [00:23:04] Speaker 04: So do you not see the concern I have with you rendering entirely superfluously available to the user language by equating it to everything that's saved is necessarily available to the user? [00:23:15] Speaker 05: Because the claim has two limitations, archive copy available to the user. [00:23:31] Speaker 05: available to the user by way of payment or by way of some special asset is just not needed. [00:23:38] Speaker 05: I understand your frustration, but what I'm trying to explain is that when you have the store to copy, [00:23:45] Speaker 05: It is available to the user by the fact that it is stored. [00:23:50] Speaker 05: If it was not stored, the user would have no way to, there's no availability whatsoever. [00:23:54] Speaker 05: The storing is what makes it available. [00:23:56] Speaker 05: Otherwise, they can't rewind, they can't fast forward, they can't play back. [00:24:00] Speaker 05: The system is merely saying, is there something that will allow this user to use it or to watch the program in a way that is not live? [00:24:09] Speaker 05: To go forward, go backwards, pause. [00:24:12] Speaker 05: Based on the way this limitation is written, see satisfied with that. [00:24:17] Speaker 05: And if the board adopted or reconstructed, and then just explain that you cannot have this additional prepayment in there, not based on the way this particular claim is written. [00:24:28] Speaker 05: And also I'd say not based on the specification. [00:24:30] Speaker 05: There's nothing in this specification that requires an idea that you have to also already immediately have access through the, I'm sorry, through some sort of subscription or payment. [00:24:41] Speaker 02: Can I just ask, I thought that the board was laying down a couple of different bases for its conclusion. [00:24:53] Speaker 02: One might be what you just said, but what I had understood, and tell me if I'm wrong, is that the board was [00:25:01] Speaker 02: also more narrowly focusing on this kind of complementary access embodiment, under which maybe it is true to say that there is a decision by the system over and above the decision, is this program stored? [00:25:23] Speaker 02: If there's also a decision, is this a day or something in which every user or some group of users without further action by the user have this available? [00:25:38] Speaker 02: So that there is a user-specific authorization decision, though that [00:25:47] Speaker 02: specificity might, for a period of time, extend to all users, over and above the decision whether a program is archived. [00:25:57] Speaker 05: Yes, Your Honor. [00:25:58] Speaker 05: There was an alternative finding that the board had, where there are these promotional complimentary invidings. [00:26:05] Speaker 05: And there are two ways that that can happen within those promotional complimentary invidings. [00:26:09] Speaker 05: There is the time where you have someone who is a subscriber, [00:26:18] Speaker 05: stored, club copy, a notification is sent, and that subscriber can have access through payment. [00:26:26] Speaker 05: There is another situation where you have commercial channels like NBC or ABC, CBS, where someone will have access pretty much immediately once it's determined that their historic copy of a notification is sent and the user can watch it. [00:26:44] Speaker 05: So there's some sections under promotional complimentary [00:26:48] Speaker 05: and yet that is an alternative finding for the board as well. [00:26:54] Speaker 04: Ms. [00:26:54] Speaker 04: Lateef, my concern with what you're suggesting now is the claim requires, it clearly has what I understand to be a timing component to it or an ordered component of steps. [00:27:08] Speaker 04: Based on determining that the archived copy is available, [00:27:12] Speaker 04: to the user after the start time causes an indication corresponding to the archived copy to be displayed. [00:27:20] Speaker 04: So step number one in the two-step process that I just read from the claim is that there's a determination that that archived copy is available to the user. [00:27:29] Speaker 04: Step number two is that once that determination occurs, then that causes the indication. [00:27:35] Speaker 04: So the indication to the user comes after the determination that it's available, correct? [00:27:42] Speaker 05: Yes, and the question, the issue that we're having, Your Honor, is what is available? [00:27:47] Speaker 04: And available under the board that is when it's stored in, when the system determines... Yes, but I think, Counsel, I understand that's your argument, but Judge Toronto, I believe, was trying to get you to focus on the narrower argument about whether the promotional period might meet it. [00:28:03] Speaker 04: And my concern with that is the discussion of the promotional period, which it seems to me appears at paragraph 80 of C, most clearly, [00:28:12] Speaker 04: and also is displayed on Figure 7 as well, demonstrates clearly that the determination to provide free access occurs at what is Block 752, which is way down the food chain after the indication is sent. [00:28:29] Speaker 04: So what you don't have is a determination of access, then an indication being sent. [00:28:36] Speaker 04: You have an indication being sent, and then subsequently, many steps later, a determination of access. [00:28:42] Speaker 05: So this is sort of that same argument with the original finding in the board hat. [00:28:47] Speaker 05: There is this determination that you want to send a notification in these complementary acts, and that only happens with 764. [00:28:55] Speaker 05: This determination that you're speaking of, Your Honor, is sort of the first subsection I was talking about, where if a subscriber then gets this notification [00:29:05] Speaker 05: They would still pay into the system. [00:29:07] Speaker 05: They're not club members. [00:29:09] Speaker 04: Yeah, but Council 764, which is in Figure 7A, all occurs in Block A on Figure 7, which is 760. [00:29:17] Speaker 04: Is that correct? [00:29:20] Speaker ?: One second, Your Honor. [00:29:22] Speaker 04: 764 is located in figure 7A. [00:29:26] Speaker 04: That's where you display the notification symbol. [00:29:28] Speaker 04: And all of figure 7A is encapsulated in number 760 on figure 7. [00:29:35] Speaker 04: And I guess my point to mentioning that is that you see that that is one, two, three, four steps below the determination of whether there's provided free access. [00:29:48] Speaker 04: So again, the determining in [00:29:51] Speaker 05: The determining in reference to 764 and 760 is occurring after the notification is sent. [00:30:14] Speaker 04: you now are able to... Well, the reference tells us when access can happen, right? [00:30:18] Speaker 04: In paragraph 80, whether to grant such complementary access is determined at step 752. [00:30:25] Speaker 04: So it seems that the reference itself explicitly tells us what they mean. [00:30:31] Speaker 05: The limitations is based on determining that the copy is available and notification is sent. [00:30:38] Speaker 05: The notification is going to be sent prior to that point on paragraph 80 that you're talking about and prior to [00:30:44] Speaker 05: Right, that's the problem. [00:30:46] Speaker 04: That's the problem, counsel. [00:30:47] Speaker 04: The problem is that this claim covers a notification coming after a determination, and your prior art reference only discloses a notification coming before a determination. [00:31:00] Speaker 05: That's exactly my problem. [00:31:06] Speaker 05: based on determining that the archived copy is available. [00:31:10] Speaker 05: That's the whole essence of the board's decision. [00:31:12] Speaker 05: It is saying that this particular limitation does not meet this, what would be considered the access in terms of, I'm now going to fix your logic, the notification column, a user can get a playback, that's where we want it. [00:31:29] Speaker 05: In addition, you do have the other type of complimentary access [00:31:33] Speaker 05: where someone is watching our commercial channel, like NBC or CBS, they then would be able to, if there's no payment involved at all, there's no, if someone's paying for this, if someone's not paying for this, then our vacation is sent, they hit the remote control, they're watching the storage program. [00:31:52] Speaker 02: Does the figure seven flow chart apply to that embodiment in C? [00:32:03] Speaker 02: Because if it didn't, then the sequencing laid out in figure seven might not be, might not confine that embodiment. [00:32:14] Speaker 02: But if it does, that's a different story. [00:32:18] Speaker 05: It's not clear to me now because the commercially, the ones that deal with commercial channel, I'm not sure that there is actually a figure that [00:32:30] Speaker 05: What what care what paragraph of see would you like us to look at as the embodiment you think Solves the concern I have about the timing [00:32:56] Speaker 05: And then if you go down a couple lines, it'll talk about different pay-per-view services from shopping, and it says commercial-supported channels. [00:33:03] Speaker 02: Was the board also citing to paragraph 76? [00:33:05] Speaker 05: Yeah, but I think those are going backwards. [00:33:12] Speaker 05: I guess if you look at ADTS 1058, [00:33:15] Speaker 05: paragraph 76. [00:33:17] Speaker 05: If you go down a couple of lines, it says, however, other environments could provide a privilege of club membership without belonging to a subscription. [00:33:25] Speaker 05: For example, community-supported televisions that have this ability to pause, reroute, and fresh forward it. [00:33:31] Speaker 05: We send a subscription service. [00:33:35] Speaker 05: And the board relied on that type of [00:33:41] Speaker 04: But this doesn't say anything about when the notification is provided. [00:33:46] Speaker 04: This doesn't address the timing issue at all, because it doesn't address it. [00:33:51] Speaker 04: It just is completely silent. [00:34:01] Speaker 04: But it doesn't say when notifications are being sent, so we don't know if it's before or after, right? [00:34:08] Speaker 04: Can I just ask you, if we agree with Roe V that the claim requires a pre-notification determination of availability, if we agree that that's what this claim requires to a specific user, is there any dispute that C does not teach this? [00:34:25] Speaker 04: If we agree with Robey that this claim requires a pre-notification determination, I'm trying to pull in my timing concept, a pre-notification determination of availability to a specific user, is there any dispute? [00:34:43] Speaker 04: See, he doesn't teach this. [00:34:50] Speaker 04: You would point to paragraph 76? [00:34:52] Speaker 04: That would be your response? [00:34:54] Speaker 05: And I would point to Fairgrounds 176. [00:34:57] Speaker 02: OK. [00:34:58] Speaker 02: And can I just ask you the same question I asked Mr. Joffrey? [00:35:02] Speaker 02: What piece of C constitutes the claimed indication? [00:35:11] Speaker 02: Is that disputed? [00:35:12] Speaker 02: Where do I find that? [00:35:15] Speaker 05: No, it's not. [00:35:18] Speaker 05: I'll tell you what it says. [00:35:21] Speaker 05: Excuse me, Your Honor. [00:35:24] Speaker 05: It is on page 80, CS 1059, paragraph 85. [00:35:26] Speaker 02: Paragraph 85. [00:35:28] Speaker 05: Yes, that's the talking about when a notification is sent, and that's the indication. [00:35:38] Speaker 05: You'll see if you go down, it says, if a code program is being displayed, it's like code notification to mode is shown on the identifier. [00:35:46] Speaker 05: That's what 764. [00:35:47] Speaker 05: and then kind of talk about what that could look like. [00:35:54] Speaker 05: Such a club notification symbol based on products, for example, a special icon, or helping parents drink, not letting you do the rest. [00:35:58] Speaker 02: But that's what that could look like. [00:36:00] Speaker 02: So am I right in thinking that for the paragraph 76 commercial television situation, there is no particular reason to think that there would ever be such a club notification symbol sent, since you don't need to be a member of any club. [00:36:18] Speaker 05: Is Lizzie still going to want to try and get, I think one of the things I'll say is she's going to want to be a member of the club, so I want you to subscribe. [00:36:25] Speaker 05: So that notification would be sent and it would still say, hey, look what you can watch. [00:36:30] Speaker 05: And you would still have that in your alignment. [00:36:34] Speaker 05: still wanting to draw people in. [00:36:39] Speaker 05: But it's almost like if you think of something that seems like a tester so that you'll come back. [00:36:43] Speaker 02: Just to be clear, it seemed to me when I was reading the claim initially that it was not clear to me whether the indication that is required could be satisfied by just displaying on the screen a choice [00:37:03] Speaker 02: And if you press that button, then you start getting the, you know, the playback or something. [00:37:13] Speaker 02: Without any advertisements or promotions or anything like that, this is why I guess I'm asking about whether it was agreed what part of C is the indication. [00:37:24] Speaker 02: Because if it's some sort of promotion of club membership, then that's a much narrower possibility for what [00:37:34] Speaker 02: this claim language by cover, which is just, you know, today everybody gets to use this playback from the beginning function. [00:37:42] Speaker 02: So we're going to just display a button that says press the key three in order to start the playback. [00:37:49] Speaker 02: No advertisements, no promotion, no requests or anything. [00:37:53] Speaker 02: But I gather it is agreed that that would not count. [00:37:57] Speaker 05: Well, I don't know if that's true as I look at 85. [00:38:03] Speaker 05: In a certain sense, [00:38:04] Speaker 05: At the first part of it, compared back to 85, it's talking about what the notification is and the outcome of that symbol. [00:38:09] Speaker 05: But then it then talks about further information. [00:38:12] Speaker 05: It says, uncertain embodiment. [00:38:15] Speaker 05: Sorry, give me one second. [00:38:18] Speaker 05: Such consistency reinforces the meaning of the notification symbol, serving both to sharpen its recognition value and to increase its effectiveness in advertising the special of features. [00:38:28] Speaker 05: I think there's, the way I read that paragraph, there's kind of, [00:38:33] Speaker 05: Yes, you can just watch this thing and play it back, and we have this additional sort of advertisement. [00:38:41] Speaker 05: I'm not really sure that was laid out, but I think [00:38:45] Speaker 02: But in Comcast's petition, did it specifically map this kind of club symbol portion of paragraph 85 as the claimed indication? [00:39:02] Speaker 02: I think Mr. Joffrey said yes. [00:39:05] Speaker 05: Yes, I think that's right. [00:39:08] Speaker 05: You can look at APPS 232. [00:39:13] Speaker 05: Okay, thank you. [00:39:29] Speaker 05: Okay, thank you, Ms. [00:39:37] Speaker 04: Lateef. [00:39:39] Speaker 04: Mr. [00:39:41] Speaker 04: Mr. Jaffrey, you have three minutes of rebuttal time. [00:39:45] Speaker 04: And we went over with Ms. [00:39:46] Speaker 04: Lateef. [00:39:46] Speaker 04: So if you need to go over a little bit, we'll be indulgent. [00:39:50] Speaker 00: I appreciate the indulgence, Your Honor. [00:39:56] Speaker 00: I'll try to be briefer. [00:39:57] Speaker 00: I think throughout this, it's important to actually go back to what the board did. [00:40:03] Speaker 00: So we can talk about these NBC models of paragraph 76. [00:40:09] Speaker 00: None of this discussion is found in the board's decision. [00:40:12] Speaker 00: Board's decision, to be quite clear, is all focused primarily upon this straw man argument that Roe v. [00:40:24] Speaker 00: the requirement that they allegedly, implicitly argue that Roe is making, that the user purchased the club membership in advance of the indication being displayed. [00:40:33] Speaker 00: That's what the board actually says on A38. [00:40:36] Speaker 00: And then it subsequently, throughout, over and over again through the pinion, relies upon that straw man argument and shoots it down. [00:40:44] Speaker 00: And the problem with substantial evidence, Your Honor, is that you actually have to have substantial evidence on the point at issue. [00:40:51] Speaker 00: You can't make a straw man shoot it down and then say there's substantial evidence for that point. [00:40:56] Speaker 00: So there simply is no description of, for example, indications [00:41:01] Speaker 00: NBC kind of programming that none of that's discussed in the board's opinion whatsoever and Furthermore that that makes sense because there's nothing in C that's talking about Indications in that context everything is tied back to figure 7 and the flowcharts that we've been discussing Where the indication is always quite present before there's any determination? [00:41:22] Speaker 00: That and that to be quite clear. [00:41:24] Speaker 00: It's not as though C was in a place where there was not it was not clear when a [00:41:29] Speaker 00: programs were available to the user, C makes quite clear when it is making programs available to the user. [00:41:36] Speaker 00: Those are all done in figure 7B, 7C, 7D. [00:41:39] Speaker 02: Just to be clear, or I guess a quick question, does C say when we set out figure 7? [00:41:49] Speaker 02: this is the procedure that applies to every scenario that we are discussing here? [00:41:56] Speaker 02: Or does it say, here is one embodiment of what this patent is about? [00:42:03] Speaker 00: You are quite right that there's a lot of the boilerplate language that this is an embodiment. [00:42:08] Speaker 00: This is not limited. [00:42:09] Speaker 00: So you can see that throughout. [00:42:11] Speaker 00: That said, the thing that Comcast pointed to and the thing that [00:42:17] Speaker 00: that was discussed before the board is all the discussion that pertains to Figure 7. [00:42:24] Speaker 00: So there's not some other. [00:42:26] Speaker 00: It's essentially silent. [00:42:27] Speaker 02: So this might not have necessarily been limited by C, but I gather your position is that it is sufficient for your purposes is that it was limited by Comcast and its presentation. [00:42:41] Speaker 00: That's absolutely right. [00:42:42] Speaker 00: And it's furthermore limited by the board's own decision. [00:42:45] Speaker 00: the board discussed what the board discussed. [00:42:47] Speaker 00: And so I think going back to what the board discussed, there simply is no substantial evidence based upon the way the board actually proceeded. [00:42:55] Speaker 00: And if there's no other questions. [00:42:57] Speaker 04: OK. [00:42:57] Speaker 04: Thank both counsels. [00:42:58] Speaker 04: This case is taken under submission.