[00:00:00] Speaker 00:
Our final argued case this morning is Black Hawk Network vs. Interactive Communications International, 2022-1650.

[00:00:11] Speaker 02:
The patent trial appeal board aired as a matter of law in this case.

[00:00:26] Speaker 02:
where on a record where both Mr. Hutton, the petitioner's expert and lead counsel for petitioner during arguments, conceded that there is no express disclosure of the payment confirmation limitation.

[00:00:42] Speaker 02:
And yet the board refused to apply this court's precedence on inherency.

[00:00:48] Speaker 02:
And so in this instance, where this limitation was presented under this court's precedence regarding an anticipatory disclosure, we have a concession from Mr. Hutton that the payment confirmation limitation is not expressly taught.

[00:01:07] Speaker 02:
We have a concession or an admission by lead counsel for petitioner to the board during argument.

[00:01:13] Speaker 02:
The payment confirmation is not taught.

[00:01:15] Speaker 00:
The board said it logically follows that the game provider system possess the necessary information.

[00:01:27] Speaker 02:
Judge Lorry, that finding by the board is not supported by the record below.

[00:01:34] Speaker 02:
The board made that finding not on the basis of Mr. Hutton's declaration that says that payment confirmation must be present in SHREC, Classic Language of Inherency.

[00:01:49] Speaker 02:
And it's conceitedly not an obviousness-based argument here.

[00:01:55] Speaker 02:
In the opposition brief at page 16, counsel for petitioners conceived that they did not make an obviousness argument in their petition.

[00:02:04] Speaker 02:
The obviousness argument was an alternative argument that was presented in a reply brief.

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And there are even adamant in their briefing here to this court that the board did not make an obviousness finding as to this limitation.

[00:02:17] Speaker 02:
And so if the board had no substantial evidence.

[00:02:20] Speaker 00:
The board said, we are persuaded that

[00:02:25] Speaker 00:
This Shrek's description would have suggested to a skilled artisan that the store back office 240 would include an instruction to cause payment confirmation.

[00:02:39] Speaker 00:
You disagree?

[00:02:41] Speaker 02:
I disagree because this court's precedents, including the Eli Lilly case, the personal web technologies case versus Apple, recognize that.

[00:02:53] Speaker 00:
Well, this case, like so many,

[00:02:55] Speaker 00:
isn't determined by other cases.

[00:02:58] Speaker 00:
Each case depends on its own facts, and we've got facts here that you disagree with, but they're findings of fact, aren't they?

[00:03:11] Speaker 02:
There are findings of fact by the board on pages 43 and 44 of the appendix that are not supported by any substantial evidence.

[00:03:18] Speaker 02:
And in a case where the alleged basis for disclosing the limitation is that it's neither expressly taught nor inherently present for the board to make those findings when no one on the board is a person of ordinary skill in the art is inappropriate.

[00:03:37] Speaker 03:
And the court could use this case to clarify, not in the context of... Fact-finders all the time make findings from the perspective of persons of skill in the art, even without themselves being of skill in the art.

[00:03:49] Speaker 03:
So I'm not sure that that argument gets you very far.

[00:03:53] Speaker 02:
The findings here are based upon a record where Mr. Malika and Mr. De La Sensore provided undisputed evidence on behalf of the patent owner that the lottery systems... But the board read the patent and disagrees with your experts.

[00:04:09] Speaker 04:
I mean, the patent is itself evidence, isn't it?

[00:04:14] Speaker 02:
I'm sorry, the patent owner's patent, the 894 patent?

[00:04:17] Speaker 04:
No, the reference.

[00:04:18] Speaker 02:
The Shrek reference.

[00:04:19] Speaker 04:
The Shrek reference is evidence.

[00:04:20] Speaker 04:
The board can read it, and it'd disagree with your expert's reading of it.

[00:04:25] Speaker 04:
I mean, it cited the portions in the reference that it says supports its views.

[00:04:29] Speaker 04:
I know you disagree, but I mean, that's the way the board read it.

[00:04:33] Speaker 04:
And I mean, if we find that the places it cited support the board, then it's a substantial evidence case, isn't it?

[00:04:41] Speaker 02:
We don't think so, Your Honor, because the board didn't apply this court's precedence on inherency.

[00:04:48] Speaker 04:
And instead... I really don't understand why we're getting caught up in this.

[00:04:52] Speaker 04:
I mean, maybe the board would have been better to be clear about what it was doing, but it read the reference and said, this is what the reference teaches us.

[00:05:01] Speaker 04:
And even though the specific words you want to find aren't there,

[00:05:04] Speaker 04:
It said the reference still teaches that.

[00:05:06] Speaker 04:
I don't know that that's necessarily an inherency.

[00:05:09] Speaker 04:
It could just be an expressed disclosure in other words.

[00:05:13] Speaker 04:
And it said this reference necessarily includes, and I don't want to use the word necessarily because then you're going to tell me that's an inherency.

[00:05:21] Speaker 04:
They said the reference discloses this limitation.

[00:05:26] Speaker 03:
If I could just add, it might be implicit disclosure.

[00:05:29] Speaker 03:
I mean, the board read it and sees it there.

[00:05:32] Speaker 03:
Aren't they allowed to do that?

[00:05:36] Speaker 02:
I don't think the board can do that in this case where the expert concedes that there's no express disclosure.

[00:05:44] Speaker 04:
Council concedes there's no express disclosure, and then the board draws in... The board doesn't have... If they think both experts are wrong, they can disregard the expert testimony, right?

[00:05:53] Speaker 04:
That's the first place they go to determine whether something's disclosed is the reference.

[00:06:00] Speaker 02:
Yes, I recognize that the board reports to make findings based upon its own interpretation, not supported by the expert testimony proffered by the petition, and also purportedly by reading in between the lines regarding a disclosure that even Mr. Hutton, the expert for the other side, acknowledged was not necessarily present on the face of Shrek.

[00:06:26] Speaker 02:
And we believe that the error both is a matter of law and also in terms of the fact findings is that on a record where at best the inference being drawn is about the possibility of a disclosure that's not expressly made being supported by an inference.

[00:06:46] Speaker 03:
On the reported legal error, what authority do you cite that says the board cannot read a reference

[00:06:53] Speaker 03:
to implicitly disclose something that maybe no expert says is there.

[00:06:59] Speaker 03:
What authority prevents them from doing that?

[00:07:04] Speaker 02:
Well, there are two cases discussed in the record, Judge Stark.

[00:07:08] Speaker 02:
One is the Eli Lilly versus Los Angeles biomedical research case.

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That case was cited by the petitioners.

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It actually supports our view of the appropriate outcome here.

[00:07:20] Speaker 02:
The court held in that case that to anticipate a reference must do more than suggest the claimed subject matter.

[00:07:27] Speaker 03:
But a fact finder can find it does more than suggest.

[00:07:32] Speaker 03:
It discloses, just not in the words, that would make it an express disclosure.

[00:07:37] Speaker 03:
Does Eli Lilly say a fact finder can't do that?

[00:07:40] Speaker 02:
Now, the facts of this case, though, are very similar to the Eli Lilly case, and that at page 43 of the appendix, the board said that the Schreck reference suggests... I guess I'm more focused on the purported legal error.

[00:07:53] Speaker 03:
I understand you think the facts don't support what the board found, but...

[00:07:58] Speaker 03:
But does Eli Lilly say a fact finder like the board can't read into a prior art reference and see something there that may not be there in black and white but is implicitly there and would be understood by one of skill in the art just as a legal matter?

[00:08:15] Speaker 03:
Do we say they can't do that sort of thing?

[00:08:19] Speaker 02:
I understand under this court's precedence that the requirement is either to have an express disclosure, words on the page, or to have an inherent disclosure.

[00:08:29] Speaker 03:
And so you're saying there is no other way a fact finder can find something in a prior art reference.

[00:08:33] Speaker 03:
It's just those two possibilities.

[00:08:36] Speaker 03:
That's correct.

[00:08:38] Speaker 02:
So Personal Web Technologies versus Apple is another case that recognizes that a disclosure could be expressed or it could be inherent.

[00:08:46] Speaker 03:
It goes on to say there's no other way to find something in a reference.

[00:08:51] Speaker 02:
My understanding of this court's precedence is that to be an anticipatory disclosure, you must have an expressed disclosure of words on the page,

[00:08:59] Speaker 02:
Or you need to satisfy the more rigorous standard for inherency, necessarily.

[00:09:04] Speaker 04:
But does it have to be the exact words?

[00:09:06] Speaker 04:
If it's expressing the same concept in different words, then that's an expressed disclosure, isn't it?

[00:09:13] Speaker 04:
That's not inherency, it's an expressed disclosure.

[00:09:16] Speaker 02:
Hypothetically, in another case, I would agree with you.

[00:09:19] Speaker 02:
In this case, we're both opposing counsel, and Mr. Hutton conceded it's not there.

[00:09:24] Speaker 04:
I mean, I don't care about any of those concessions, because the board just read this reference.

[00:09:28] Speaker 04:
So if you put away all those concessions, if the board looked at this and said, they don't use this precise language, but we read this reference to disclose that concept nonetheless, they can do that.

[00:09:40] Speaker 04:
And they don't have to do that under an agency, right?

[00:09:43] Speaker 02:
I disagree.

[00:09:44] Speaker 02:
I think that in a circumstance where the words are not on the page and you're not talking about obviousness, I would have a different answer for you if the argument was obvious.

[00:09:52] Speaker 04:
I mean, I don't understand how that can possibly be the wall, particularly in some of these complicated software cases and things like that, where everybody makes up their own language for different, for concepts.

[00:10:05] Speaker 04:
one company may use language X and one company may use language Y, if they're the same concept, it's not inherency, it's just a different way of expressing the same thing.

[00:10:16] Speaker 04:
Now I know you disagree that this is a different way of expressing the same thing, but that's finding an express disclosure, not an inherency disclosure, isn't it?

[00:10:28] Speaker 02:
only in a circumstance where there's support in the record that an expert would have understood it that way.

[00:10:35] Speaker 02:
And that's absent in this case.

[00:10:38] Speaker 04:
Why does there need to be support that an expert would understand it that way?

[00:10:42] Speaker 04:
Couldn't the board or whoever the fact finder read it and say, yes, this is the same concept in this closed?

[00:10:49] Speaker 02:
If there was support, I should have said, from a person of ordinary skill in the art, perhaps not an expert, then I would agree with you, but not in a case where that evidence is missing.

[00:11:00] Speaker 02:
I recognize I'm into my rebuttal time.

[00:11:02] Speaker 02:
Unless the court has other questions, I'll reserve that time.

[00:11:05] Speaker 00:
We will save it for you, Mr. McPherson.

[00:11:13] Speaker 01:
Good morning, Your Honors.

[00:11:14] Speaker 01:
Patrick McPherson, Duane Marsh, for the appellate

[00:11:19] Speaker 01:
This is a parallel disclosure case.

[00:11:22] Speaker 01:
The 894 patent and Shrek are both directed to the same problem.

[00:11:28] Speaker 01:
They propose the same solution, and they use the same architecture.

[00:11:34] Speaker 01:
However, they use different words to describe the same concept.

[00:11:39] Speaker 01:
That does not get you to inherency.

[00:11:41] Speaker 01:
As Judge Hughes was just discussing, the standard really is, is what does the reference convey

[00:11:48] Speaker 01:
to a person of ordinary skill and art.

[00:11:50] Speaker 00:
Well, the reference requires a receipt, right?

[00:11:52] Speaker 00:
Yes.

[00:11:53] Speaker 00:
Which is what the claim purportedly tried to avoid?

[00:11:58] Speaker 01:
For... I'm not sure what you mean by trying to avoid.

[00:12:06] Speaker 00:
Let's read the claim.

[00:12:13] Speaker 01:
The claim term at issue is providing

[00:12:16] Speaker 01:
to the lottery administration, payment confirmation.

[00:12:21] Speaker 01:
That's the claim term that's at issue.

[00:12:23] Speaker 01:
And the board identified the facts that it said supported that.

[00:12:28] Speaker 01:
One of them was Shrek discloses the pre-printed lottery ticket is not eligible to win unless payment and activation occurs.

[00:12:37] Speaker 01:
To a person of ordinary skill in the art, unless payment occurs means payment confirmation must be determined.

[00:12:44] Speaker 01:
That's what our experts said.

[00:12:45] Speaker 00:
So you're saying the receipt is payment confirmation?

[00:12:49] Speaker 01:
The receipt could be, but in this instance it's something else.

[00:12:53] Speaker 01:
Because it goes on to say the cash register would get authorization for payment for the winning tickets as part of the validation process.

[00:13:02] Speaker 01:
And the board relied on that.

[00:13:03] Speaker 01:
So that means it's not the cash register doing it, and the cash register has the receipt.

[00:13:07] Speaker 01:
But it's getting authorization from somewhere else.

[00:13:10] Speaker 01:
And the next fact that they relied on is Shrek says the game provider could check if the ticket 300 is a winner and could send information back that the ticket is a winner and authorize winner payment.

[00:13:24] Speaker 01:
And the board said, and we know what's required for authorizing winter payment, it has to be activated.

[00:13:29] Speaker 01:
And you need, the payment has to occur.

[00:13:32] Speaker 01:
That's payment confirmation.

[00:13:34] Speaker 01:
That's the claim limitation disclosed using different words.

[00:13:39] Speaker 01:
It's an expressed disclosure.

[00:13:40] Speaker 01:
It's not inherent disclosure.

[00:13:43] Speaker 01:
Now, that's the facts before the board.

[00:13:45] Speaker 01:
And under the standards of potential evidence,

[00:13:47] Speaker 01:
Could a reasonable mind say that's adequate to support the conclusion of the board, the conclusion that Judge Lurie wrote, that one of skill and the art would understand that the payment confirmation was provided to the lottery administration so they could authorize payment?

[00:14:02] Speaker 01:
Yes.

[00:14:03] Speaker 01:
But if you look further than that, what did the appellant tell the board those facts meant?

[00:14:09] Speaker 01:
They didn't tell the board anything.

[00:14:11] Speaker 01:
They said, it doesn't mean that.

[00:14:13] Speaker 01:
But they didn't say, what does it mean?

[00:14:17] Speaker 01:
So there's no facts for what that means other than our experts.

[00:14:21] Speaker 01:
And the board understood that and agreed with it.

[00:14:24] Speaker 01:
And these are not the type of facts that a judge can't read for himself and say, yeah, of course, in order to have payment authorization, you need to have the two requirements.

[00:14:34] Speaker 01:
So this is a case where there's no inherency here.

[00:14:37] Speaker 01:
This is an express disclosure to one of Schoenberg.

[00:14:40] Speaker 03:
Your friend insists no expert said there's an express disclosure, and that counsel on your side also agreed there's no express disclosure.

[00:14:50] Speaker 03:
Is he factually correct about the record?

[00:14:53] Speaker 01:
He's factually incorrect.

[00:14:55] Speaker 01:
I'm the counsel, and my position has always been, and I think the laws are, and my Latin is not that good, but there's something about in heik verba, that the support for a claim does not need to be verbatim.

[00:15:07] Speaker 01:
And every time that question was asked, I would always say, the words do not say payment confirmation.

[00:15:15] Speaker 01:
I was very clear that it does not expressly use the same language as the claims verbatim.

[00:15:21] Speaker 03:
And what about your expert or any other witness testimony?

[00:15:25] Speaker 03:
Where in the record can we find it saying payment confirmation limitations expressly disclosed in Shrek?

[00:15:31] Speaker 01:
The question was always posed, does this say that?

[00:15:35] Speaker 01:
And the answer is no.

[00:15:37] Speaker 01:
So then it must be inherent.

[00:15:39] Speaker 01:
And we're objecting to it because that's a legal conclusion.

[00:15:42] Speaker 01:
Our expert says, yeah, it doesn't say that.

[00:15:45] Speaker 01:
And so counsel is saying, well, then it must be inherent.

[00:15:48] Speaker 01:
And our expert says, well, yes, because it doesn't say that.

[00:15:52] Speaker 01:
So the language that our experts use, and we're objecting to it because it's really a legal conclusion of whether something's inherent or not, is the words don't say that.

[00:15:59] Speaker 01:
And we agree the words do not say that.

[00:16:01] Speaker 03:
So you've never had your expert affirmatively

[00:16:04] Speaker 03:
support your argument that one of skill in the art would read this as Disclosed in in track.

[00:16:14] Speaker 01:
No our expert did say that and where can I find that?

[00:16:16] Speaker 01:
Where the board relied where the board relied on their citation to one of skill in the art and They went through what our experts said was the state of the art and they identify References, can you give me some pages, please?

[00:16:31] Speaker 01:
Sure.

[00:16:36] Speaker 01:
Return to page Should be appendix page 44 I think 44 in the board decision yes Starting on page 43

[00:16:56] Speaker 01:
And they're citing to your expert somewhere in 43, 44.

[00:17:00] Speaker 01:
On 43, they're citing to the exact same language our experts cited to.

[00:17:06] Speaker 01:
on Shrek.

[00:17:08] Speaker 01:
Sorry, are they citing to Shrek or are they citing to your expert analyzing Shrek?

[00:17:14] Speaker 01:
They're citing to the exact same portions of Shrek that are expert identified by line number.

[00:17:20] Speaker 03:
But as best as we can tell, they're doing the work themselves.

[00:17:24] Speaker 03:
They're not saying we find substantial evidence in the petitioner's expert testimony, correct?

[00:17:31] Speaker 01:
No, I wouldn't go there.

[00:17:33] Speaker 01:
There is language that the board says

[00:17:36] Speaker 01:
On page 44.

[00:17:47] Speaker 01:
They say, taken into account the knowledge, reasonable inferences, and creativity that a skilled artisan possessed at the time of the invention, which indisputably included a recognition that the lottery administration defines the information that must be provided to activate a ticket, we find a natural result flowing from the game provider system, being able to determine a winning ticket and provide authorization of a winning ticket, is that the store back office provided payment confirmation for the ticket to the game provider system before that determination.

[00:18:17] Speaker 01:
As such, we find Shrek's disclosure sufficient to establish a skilled artisan that the store back office would include an instruction to cause a payment confirmation for the pre-printed lottery ticket to be provided.

[00:18:29] Speaker 03:
I don't know that you need expert support in order to meet the substantial evidence standard, but I would like to know whether you think you have expert support.

[00:18:42] Speaker 03:
I can read what the board found in Shrek.

[00:18:45] Speaker 03:
They may be right about it, but do you have expert support for what the board says is in SHREC?

[00:18:52] Speaker 01:
Okay, I think we're two ships passing.

[00:18:55] Speaker 01:
Our expert identified the factual basis for saying why this claim limitation and showed the claim limitation was found and then cited to SHREC.

[00:19:04] Speaker 01:
So on a claim-by-claim basis, when he got down to the payment confirmation limitation, he says the person learning a skill in the art would understand this discloses that.

[00:19:13] Speaker 01:
The board then

[00:19:14] Speaker 01:
Adopted that position and adopting that position.

[00:19:17] Speaker 01:
They say taken into account the knowledge That was the preference for going there.

[00:19:21] Speaker 03:
So then I think all I'm asking is Do you know where I can find where your expert said?

[00:19:28] Speaker 03:
Here is what a person's skill in the art with where they would find the payment confirmation Yes, disclosed in track.

[00:19:35] Speaker 03:
Yeah, I misunderstood your question.

[00:19:36] Speaker 01:
I'm sorry on that may not have been clear On page 47 and 48 and 49

[00:19:45] Speaker 01:
Those are sites to the board.

[00:19:48] Speaker 01:
I'm sorry.

[00:19:50] Speaker 01:
Appendix page 151.

[00:19:54] Speaker 01:
Which is our petition at page 47.

[00:19:57] Speaker 01:
So it's appendix 151, 152, and 153.

[00:20:02] Speaker 01:
Our expert goes through and identifies where Shrek

[00:20:07] Speaker 01:
has this and finishes up on page 153, thus a person of ordinary skill in the art understood that Shrek discloses providing payment confirmation to the lottery administration.

[00:20:19] Speaker 01:
So that was part of the record from which the board then pulled those sites and put it into their decision.

[00:20:25] Speaker 04:
But I do agree with you.

[00:20:26] Speaker 04:
So even if the board didn't specifically cite your expert, the expert's report can still be substantial evidence for its conclusion.

[00:20:35] Speaker 01:
Yes, and I want to go where you went before and where I think Judge Stark was going.

[00:20:40] Speaker 01:
The judge of the board themselves can read Shrek.

[00:20:45] Speaker 01:
This is a case where the technology is not that deep or hard that the judges can't understand for themselves and do that.

[00:20:51] Speaker 01:
So this is a case where the judges could have done that independently and cite those exact same facts.

[00:20:59] Speaker 03:
Shrek does teach at column 6, line 62 to 64, that for claiming or payment of a lottery prize, the pre-printed ticket needs to be prevented along with the cash register received.

[00:21:14] Speaker 03:
Is that not Shrek telling one of Skilly Ark that you always have to have the receipt as well as the ticket?

[00:21:22] Speaker 01:
No, your honor because I think if you continue reading there you're looking the board This was before the board as well and the board said no What this the next line says in a case of any dispute the cash register receipt?

[00:21:34] Speaker 01:
With ticket activation information such as price the activation authorization code needs to be presented so in a dispute you could use your cash register receipt for that and I go back to say that this is a parallel disclosure case if you look at a

[00:21:48] Speaker 01:
what the eight, nine, four patent has, it has the same disclosure.

[00:21:54] Speaker 01:
And it says, it talks about providing the cash register receipt.

[00:21:59] Speaker 01:
In case of, you provide the printed receipt, and that's used to confirm activation.

[00:22:06] Speaker 01:
So even though it's not required, you would provide it in case there's some type of authentication you wanna show.

[00:22:11] Speaker 01:
And that's in the appendix page 84,

[00:22:14] Speaker 01:
That's column three.

[00:22:16] Speaker 01:
It's 19 through 24.

[00:22:17] Speaker 01:
It's a parallel disclosure of using the cash register receipt, not for payment confirmation, but to show activation.

[00:22:24] Speaker 01:
So both the 894 and Shrek disclose that.

[00:22:30] Speaker 01:
This is an obvious in this case, correct?

[00:22:34] Speaker 01:
It's an obvious in this case overall.

[00:22:36] Speaker 01:
There were 53 claims, some of which we had to rely on modifying Shrek with the knowledge of personal organized skill in the art.

[00:22:45] Speaker 01:
Other claims, like claim one, we showed that the Shrek disclosure disclosed each and every limitation there.

[00:22:52] Speaker 01:
Overall,

[00:22:54] Speaker 01:
the board found it was obvious under 1 or 3 because that's the ground we put forward.

[00:22:57] Speaker 01:
But not every single claim required an obviousness analysis.

[00:23:01] Speaker 01:
Claim 1 did not require an obviousness analysis.

[00:23:05] Speaker 03:
Have we talked about a concept of an implicit disclosure in context with an obviousness analysis?

[00:23:12] Speaker 03:
Another way to put it is

[00:23:14] Speaker 03:
If I disagree with you that Shrek expressly discloses the payment confirmation limitation, and you say this isn't about inherency, does that mean you lose?

[00:23:26] Speaker 01:
Well, no.

[00:23:27] Speaker 01:
Because something that's expressed can also be inherent.

[00:23:31] Speaker 01:
And this may be one of those cases.

[00:23:33] Speaker 01:
For example, there is a embodiment here where the word found.

[00:23:40] Speaker 01:
It's necessary for that.

[00:23:42] Speaker 03:
Why is there not a third category?

[00:23:46] Speaker 03:
It's not inherent, it's not expressed, but it's implicit.

[00:23:51] Speaker 01:
I do not subscribe to Appellant's argument that it's either expressed or inherent.

[00:23:56] Speaker 01:
I don't think that's the law.

[00:23:57] Speaker 01:
I think the law is the reference much reasonably conveyed to a person of earlier skill in the art.

[00:24:03] Speaker 01:
And that can be done many different ways, not one, not two, not three.

[00:24:06] Speaker 01:
And I think this board of jurisprudence sometimes uses the term to get away from the express because you can see how it could be used against me that I agreed it was no express disclosure.

[00:24:15] Speaker 01:
The court sometimes use the word actual disclosure, which is something not just expressly stated,

[00:24:23] Speaker 01:
But if it's understood by one of skill and the art, that's an actual disclosure, even though different words are used.

[00:24:28] Speaker 01:
Like in this case, same concept, different words used, that's an actual disclosure.

[00:24:33] Speaker 01:
And if you start using express, then it's express words or express concepts, and that's where it gets a little murky.

[00:24:38] Speaker 01:
But I think here, the facts are clear here, and the facts are substantial evidence for which the board properly found that that limitation was disclosed in Shrek.

[00:24:51] Speaker 01:
And there's no further questions.

[00:24:53] Speaker 01:
I'll sit down.

[00:24:53] Speaker 00:
Thank you, Your Honors.

[00:25:03] Speaker 02:
A few quick points in closing.

[00:25:05] Speaker 02:
I would like to direct the court to Appendix 2666, where counsel said it does not expressly say that no with respect to the payment confirmation disclosure in Shrek.

[00:25:18] Speaker 02:
Again, repeated, I agree it's not expressly stated.

[00:25:22] Speaker 02:
But even though it's not expressly stated, it can still be understood by one of skill in the art.

[00:25:26] Speaker 02:
That takes us then.

[00:25:27] Speaker 02:
Again, that's at 2666.

[00:25:29] Speaker 02:
That takes us to Mr. Hutton.

[00:25:31] Speaker 02:
If you unpack what's actually at Appendix 569, Mr. Hutton's opinion is that payment confirmation must be provided.

[00:25:41] Speaker 02:
That's the entirety of his analysis.

[00:25:43] Speaker 02:
That's the entirety of his opinion.

[00:25:45] Speaker 02:
He parrots the language and says it must be provided.

[00:25:49] Speaker 02:
Now, when asked during deposition what that meant, Mr. Hutton said twice, at Appendix 1406 and then Appendix 1408.

[00:25:57] Speaker 02:
The assumption is that it was sent.

[00:26:00] Speaker 02:
We made the assumption that Shrek certainly would have included payment confirmation.

[00:26:06] Speaker 02:
That's the record we were confronted as the patent owner with responding to when our patent owner responds.

[00:26:12] Speaker 03:
And we have to find that no reasonable fact finder could agree with that.

[00:26:18] Speaker 03:
that that could not possibly add up to substantial evidence.

[00:26:22] Speaker 03:
That's what we have to find, right?

[00:26:25] Speaker 02:
Or, if you agree with me, where also Mr. Hutton also testified during deposition that his theory was one of inherent disclosure, which we cite in our papers, that when their expert is agreeing that it's an inherency theory and there's no showing that the inherency standard is met on these facts where he agrees that's his theory, that there isn't an inherent disclosure and that the board should not have found the limitation present.

[00:26:54] Speaker 02:
Unless the court has any other questions, we'll rest on that.

[00:26:58] Speaker 00:
Thank you to both counsel.

[00:26:59] Speaker 00:
The case is submitted, and this concludes today's argument.