[00:00:32] Speaker 01:
The United States Court of Appeals of the Federal Circuit is now open and in session.

[00:00:39] Speaker 00:
God save the United States and its honorable court.

[00:00:50] Speaker 00:
We had a busy day of oral arguments this morning.

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We have four cases that will be argued here.

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We have one case that we have accepted on the proofs and we're attending to that right now.

[00:01:05] Speaker 00:
The first case is Dish Network LLC versus Soundview Animations LLC, docket number 22-1627.

[00:01:17] Speaker 00:
Ms.

[00:01:18] Speaker 00:
Moylans, you reserve a few minutes of your time for rebuttal.

[00:01:27] Speaker 00:
Thank you very much.

[00:01:30] Speaker 03:
I may please the court.

[00:01:32] Speaker 03:
The board here based its decision on misunderstanding of the combination that was proposed by the petitioner below.

[00:01:38] Speaker 03:
It essentially analyzed the wrong audience in this theory and there are

[00:01:43] Speaker 03:
Some cases from this Court, at least, that establish on those facts that the Board's decision should be vacated so that it actually analyzes the correct record that was presented to the Board.

[00:01:52] Speaker 02:
But vacated.

[00:01:53] Speaker 02:
You're not seeking reversal just if we find a misreading of the petition, correct?

[00:01:59] Speaker 03:
I mean, our brief does seek that.

[00:02:00] Speaker 03:
I think that's an unlikely remedy in view of generating other cases.

[00:02:04] Speaker 02:
Do you think polygroup or any other case compels us to actually find a patent invalid if the board just simply misunderstands what's being argued?

[00:02:14] Speaker 03:
Certainly doesn't compile to do that wrong.

[00:02:16] Speaker 03:
So yeah, I think the most likely remedy that would be appropriate here for

[00:02:20] Speaker 03:
essentially analyzing the wrong combination is a do-over to get the correct analysis.

[00:02:23] Speaker 03:
So I think that's right.

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That said, we do cite cases that show that in some circumstances, this court can reverse the verdict, because the evidence, I think, is uncontroverted in terms of the validity under the correct theory of validity.

[00:02:39] Speaker 03:
However, I do agree that probably the more cautious approach and probably, frankly, more correctly would be the right one.

[00:02:47] Speaker 03:
So let me just address the board's misunderstanding, because it is explicit in the final written decision.

[00:02:51] Speaker 03:
I think it's helpful to point out where we think the board has shown this misunderstanding.

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In the final written decision, this is starting in Appendix Page 27.

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The board says numerous times that it has adopted Tappenauer's contention that the petitioner relied on a central control scheme, a Bischlitz scheme.

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And they say this, for instance, on Petitioner 27.

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Petitioner relies on a simple control scheme because the controllers assign client requests to an appropriate screen server.

[00:03:22] Speaker 03:
And there the board is talking about Fischlitzky's controllers.

[00:03:26] Speaker 03:
Again, at the bottom of that page, the board goes on to say, again, this supports the notion that Petitioner utilizes Vyshlytsky's central control to route requests, which is essential to Petitioner's mapping of the determining step of claim one.

[00:03:40] Speaker 03:
And then again, on page 28, the next page, around the middle of the first paragraph, the board again says, yeah, Petitioner expressly relies on Vyshlytsky's admission control program, which runs on controller servers to teach the determining step.

[00:03:54] Speaker 03:
Now, in every one of those instances, the board is simply wrong.

[00:04:04] Speaker 01:
I think it's been confusing.

[00:04:07] Speaker 01:
Don't you still have a problem with motivation to come on board and finding a fact that we can only review for substantial evidence that a reasonable per, you know, that a skilled artisan wouldn't combine a live streaming device with a video on demand device.

[00:04:25] Speaker 01:
And it seems to me that there's substantial evidence for that.

[00:04:28] Speaker 03:
Well, let me address that at that point.

[00:04:31] Speaker 03:
I appreciate the question.

[00:04:33] Speaker 03:
Because it was the second point I wanted to address, but I'm just going to turn to

[00:04:37] Speaker 03:
because it sounds like the board already has a pretty good understanding of where the board would grow from the first issue.

[00:04:42] Speaker 03:
My response to that is I think you can't, first, I don't think it's possible to disaggregate the board's mistake on the first issue with that second issue, because I think it just misunderstood the combination.

[00:04:53] Speaker 03:
The combination was fairly simple.

[00:04:54] Speaker 03:
Gagan itself teaches a live streaming system that also contemplates on demand, by the way, and it says explicitly that those live streams can be saved and long-term storage to be deployed on demand.

[00:05:06] Speaker 03:
But certainly we're allowing that for the live portion of the gig.

[00:05:11] Speaker 00:
Just a little bit of ground floor.

[00:05:14] Speaker 00:
Wouldn't you agree that the Zlitsky relates to video on demand and even is related to live video streaming?

[00:05:24] Speaker 03:
Yeah, correct.

[00:05:25] Speaker 03:
Yes, I agree with that.

[00:05:26] Speaker 03:
I disagree with that.

[00:05:28] Speaker 03:
The only quibble I have with it is that Geoghegan also talks about on-demand.

[00:05:33] Speaker 01:
Right, but we're not in an on-demand world here.

[00:05:35] Speaker 01:
I mean, if you were trying to invalidate an on-demand fact, you might have a good argument.

[00:05:39] Speaker 01:
Obviously, you're trying to invalidate a black-streaming factor, and Vishlitsky doesn't have anything to do with black-streaming.

[00:05:44] Speaker 03:
That's right.

[00:05:45] Speaker 03:
That is right.

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We don't deny that.

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But we do say it's certain.

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I mean, there's no organ that's not analogous already.

[00:05:50] Speaker 00:
If that's the case, how can we have a combination?

[00:05:52] Speaker 03:
Yeah.

[00:05:53] Speaker 03:
So let me just address that.

[00:05:55] Speaker 03:
The combination, which, again, I think this is where the board was confused.

[00:05:58] Speaker 03:
The combination we pose in is just Geegan.

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The only change will make it.

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So Geegan already has.

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a buffer, right?

[00:06:05] Speaker 03:
He's a live streaming service with a buffer, so he's storing the left of the buffer.

[00:06:09] Speaker 01:
Look, I get all that.

[00:06:09] Speaker 01:
That's all going to your main point about how they misread, this just being what you need from it.

[00:06:16] Speaker 01:
You know, I think there are, from both sides on that, you know, I think that was a harder one.

[00:06:21] Speaker 01:
But even if I would agree with you that a civil artist would have combined these two, that's not my job.

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My job is to see if there's substantial evidence or not.

[00:06:29] Speaker 01:
And it seems to me from the self-obvious that if you're going from

[00:06:34] Speaker 01:
a video on demand, which has all kinds of different issues to live streaming, which is intent on not interrupting the live stream and keeping it as close in time as possible.

[00:06:45] Speaker 01:
Those are two different endeavors.

[00:06:48] Speaker 01:
Certainly they're analogous.

[00:06:49] Speaker 01:
I don't think anybody would challenge that.

[00:06:51] Speaker 01:
But just because they're analogous doesn't mean there's a motivation to talk.

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And once the board found no motivation because

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a skilled artisan wouldn't look at a video on demand, or wouldn't, yes, wouldn't look at a video on demand pattern to supply anything to a live streaming.

[00:07:08] Speaker 01:
I don't understand how we can overturn that factual problem.

[00:07:12] Speaker 03:
Okay, so let me, sorry, so let me just press this head on, and then I'll back up and explore, explore what I was trying to get to a second ago, but you're pushing on exactly the opposite of the key issue.

[00:07:22] Speaker 03:
So on page 31, a final decision is, I think, where we see this factual finding should lead to two judges.

[00:07:30] Speaker 03:
So this is appendix page 31, which is the final word decision.

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And the second, sorry, first little paragraph on the page says, we agree with Paterner that petitioner has not shown why or how the advantages from sliding windows for popular movies touted by Vishlitsky are applicable to live streaming as taught in Gideon.

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As noted by Paterner, live streaming does not allow for preloading of content when rambling does.

[00:07:55] Speaker 03:
So this is, again, page 31.

[00:07:57] Speaker 03:
That was the factual finding that supported this decision that you're alluding to, Judge Hughes.

[00:08:01] Speaker 03:
There's no other way.

[00:08:02] Speaker 01:
Well, I can't, but it goes on.

[00:08:04] Speaker 01:
It talks about various advantages and disadvantages.

[00:08:06] Speaker 01:
And it says, this functionality does not apply to live streaming.

[00:08:11] Speaker 03:
Yeah, and correct.

[00:08:11] Speaker 03:
And that's just partially false.

[00:08:13] Speaker 01:
I mean, I read that, and maybe they haven't stated

[00:08:18] Speaker 01:
so explicitly, but it seems to me that what they're saying is, Wischlitzky doesn't apply to live streaming, and that as a skill artist, one wouldn't have looked at it.

[00:08:28] Speaker 03:
But to make that argument, you would have had to say they're not analogous, right?

[00:08:31] Speaker 03:
You wouldn't have looked at it, it means it's not analogous reference.

[00:08:34] Speaker 03:
They don't say that.

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What they say is what I just quoted.

[00:08:36] Speaker 03:
They say that the advantages of a sliding window from Wischlitzky would not apply to live content because, they say,

[00:08:43] Speaker 01:
Live streaming does not allow for pre-loading of content in RAM Windows.

[00:08:55] Speaker 03:
No, but the way I heard you articulate the argument was that you wouldn't have looked to the video on demand references in the first place.

[00:09:03] Speaker 03:
And that is analogous argument, which was not made below.

[00:09:06] Speaker 03:
Again, there's no dispute that it's analogous.

[00:09:08] Speaker 03:
So you would have looked at it.

[00:09:10] Speaker 03:
Then the question is, what would you have garnered from it?

[00:09:12] Speaker 01:
And would you have motivated the buyer?

[00:09:16] Speaker 01:
And probably this is better.

[00:09:18] Speaker 01:
commit to your friend, but so you can have a chance to.

[00:09:23] Speaker 01:
What evidence did the board cite for this conclusion, and why is it non-substantial?

[00:09:29] Speaker 03:
Yeah, correct.

[00:09:30] Speaker 03:
So that was the only evidence they cited is what I just recited, which is from a pattern or surply in its voting paragraph from their experts, their pattern or expert's declaration 367.

[00:09:41] Speaker 03:
But the statement is just not supported by substantial evidence because it's wrong.

[00:09:45] Speaker 03:
It says live streaming does not allow for preloading of content in random index.

[00:09:48] Speaker 03:
The board was under the impression that you don't use buffers in live streaming.

[00:09:52] Speaker 03:
It's just not true.

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Gagan specifically has a buffer for live streaming.

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That's figure five of Gagan.

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It's shown in which we talk about extensively in the petition.

[00:10:02] Speaker 03:
There is already a buffer in Gaggen for live streaming.

[00:10:06] Speaker 03:
So the board's statement there that, oh, you wouldn't use a buffer for live streaming.

[00:10:11] Speaker 03:
It just flies in the face of what Gaggen has already been tipped by.

[00:10:16] Speaker 03:
Gaggen itself already teaches you to use a live buffer.

[00:10:18] Speaker 03:
The only change we made.

[00:10:20] Speaker 03:
The only tweak we had to make to Gagan to satisfy this claim is that that buffer would be a sliding window buffer, because Gagan doesn't teach you what kind of buffer it is.

[00:10:29] Speaker 03:
It could be any buffer.

[00:10:30] Speaker 03:
And so the question is, would you have used a sliding window buffer?

[00:10:33] Speaker 03:
And the answer is, sure, because that is one of the ways you could implement a buffer in streaming video.

[00:10:38] Speaker 03:
It doesn't matter at that point whether it's live or not.

[00:10:41] Speaker 03:
And in fact, as we point out in our reply, there's even more reasons why you'd use a sliding bumper when you're dealing with live video, because there's only a certain amount of video.

[00:10:48] Speaker 00:
There's a short period of time.

[00:10:50] Speaker 00:
If you rely on the sliding window, don't you also have to rely on the rescue center control functionality?

[00:10:56] Speaker 03:
Yeah, no, that's the part that I think... That was a problem you had.

[00:10:59] Speaker 03:
That was the first issue, which the Board just completely misunderstood.

[00:11:02] Speaker 03:
Gagan itself already teaches that.

[00:11:04] Speaker 03:
So our petition at page 18, sorry, 1687, relies on Gagan

[00:11:09] Speaker 03:
to assign the incoming requests to particular botters.

[00:11:13] Speaker 03:
Gagan has that functionality built in.

[00:11:15] Speaker 03:
The board is complaining that we didn't show how you would combine the Schlitzky's version of that functionality to Gagan, but we didn't have to because that wasn't the combination.

[00:11:22] Speaker 03:
It was just a straw man that the board was attacking.

[00:11:25] Speaker 03:
So as you see in the appendix, page 1687, our petition relies on Gagan for this.

[00:11:30] Speaker 03:
We say, Gagan teaches that if a later time user connects, that user can take advantage of the scene screen produced for first user 10 by having it duplicated.

[00:11:41] Speaker 03:
Thus, this subsequent request would be received at the proxy so that it, meaning Gagan's proxy, could determine whether it could provide the duplicated scene string.

[00:11:49] Speaker 03:
So Gagan already had that functionality into it.

[00:11:51] Speaker 03:
We weren't using Bishlitsky's central control at all.

[00:11:54] Speaker 03:
All we needed from Bishlitsky is the idea that when you're sending video to a user from a server,

[00:12:00] Speaker 03:
You can use a sliding window.

[00:12:01] Speaker 03:
That's it.

[00:12:02] Speaker 03:
There was nothing remotely interesting or inventive about that.

[00:12:06] Speaker 03:
It was just one way you can implement copper.

[00:12:09] Speaker 03:
So that's the ground that the board should have considered.

[00:12:11] Speaker 03:
And we had substantial evidence.

[00:12:13] Speaker 03:
We have more.

[00:12:13] Speaker 03:
All of the evidence points in favor of that being an analogous type of buffer.

[00:12:19] Speaker 00:
I'm curious on your last statement, because it seems to me that most of your brief and your arguments here today, you're simply trying to convince us that before we got our own faction,

[00:12:32] Speaker 00:
And I don't see any legal argument, and it's okay to argue the factual component here, but you're confronted with the standard of review of substantial evidence.

[00:12:46] Speaker 03:
Yeah, I agree, but the reason we started the two cases that we talked about at Judge Stark was because

[00:12:50] Speaker 03:
One of the bases you can vacate for lack of potential evidence is when the board misunderstands the actual ground has been lifted.

[00:12:58] Speaker 03:
Like, the dish paid $40,000 to the PTAB to consider a particular rationale for a combination, and we're entitled to have the board analyze that combination, not the different combination that it actually analyzed here.

[00:13:09] Speaker 03:
But, to your point, let me just be direct about it, I think we have two issues here.

[00:13:13] Speaker 03:
One is that legal issue that the board analyzed the wrong thing.

[00:13:16] Speaker 03:
All its actual findings may be fine, but they're irrelevant to the actual dispute that was presented to it.

[00:13:21] Speaker 03:
So that's a legal issue.

[00:13:21] Speaker 03:
And then the second is the one Judge Hughes just raised, which is, well, even if they got it wrong, maybe they have this second reason that would be sufficient to defend the result below.

[00:13:31] Speaker 03:
And my response to that is, no, that was not sufficient, because the only evidence that they quote there is the expert's assertion from Pat Miller that there would be no buffer in a live stream.

[00:13:43] Speaker 03:
And that is completely inconsistent with what Gaetham teaches.

[00:13:45] Speaker 00:
I'm going to reserve the rest of the time.

[00:13:58] Speaker 00:
Yes.

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

[00:14:01] Speaker 04:
You may proceed.

[00:14:02] Speaker 04:
Good morning, Your Honors.

[00:14:02] Speaker 04:
May I please the court?

[00:14:04] Speaker 04:
I don't believe my current and other side views that there are two independent bases for Your Honors to affirm the course decision.

[00:14:13] Speaker 04:
One is based on petition of spade here to show how the two combinations that have fundamentally different principles of operation based on the central control in Wielczycki can be combined.

[00:14:23] Speaker 04:
Separately, the fact that the petitioner has not shown the motivation as to how or why the prosecutor would have combined Ishvitsky's sliding windows for his video and demand system into Gigan's live bottles.

[00:14:37] Speaker 02:
Could you first address, though, whether the board has read the petition?

[00:14:42] Speaker 02:
What stereotype review do you apply on Manekin?

[00:14:45] Speaker 04:
Doesn't it seem from A27 and 28 and other parts that they really did evaluate something different than they were asked to evaluate?

[00:15:02] Speaker 04:
Now, I would like to highlight that the issue of unmotivation based on the inactive ability of the Video On Demand System to live broadcast has no variance on the combination as to whether it relies on control or not.

[00:15:15] Speaker 04:
So if you're honest, for example, where to look at that from stage 31,

[00:15:20] Speaker 04:
The final written decision states, we agree with Katz and Horner that Petitioner has not shown why or how the advantages from sliding windows for popular movies, tackled by Wischinski, are applicable to live streaming as part of GEEK.

[00:15:37] Speaker 04:
This has no relation to whether the combination uses or does not use central platform.

[00:15:42] Speaker 01:
What's the evidence for that conclusion?

[00:15:44] Speaker 04:
Yes.

[00:15:44] Speaker 04:
So we submitted many, many pages of our expert testimony explaining why that is the case.

[00:15:50] Speaker 04:
And for example, on page 27 of our opening or response group, we have started cases that explain expert testimony, especially when it relies on the evidence of records, these analysis of substantial evidence are from the board's group.

[00:16:05] Speaker 04:
So the first point is that the motivation issue doesn't depend on the specifics of whether the combination relies on control of love.

[00:16:13] Speaker 04:
But then we move on to the next point, which is

[00:16:21] Speaker 04:
Which this is a video-on-demand system.

[00:16:25] Speaker 04:
The reason it uses a sliding window is the following.

[00:16:28] Speaker 04:
So you have a full video, imagine first come, and it wants to output that video into the buffer.

[00:16:35] Speaker 04:
Now all of that video is going to fit into the buffer, so it's going to divide that video, for example, for windows.

[00:16:41] Speaker 04:
When the user arrives, it's going to assign the user to the right streaming server that has the portion of the video that the user wants.

[00:16:49] Speaker 04:
Now, because once the user reaches the end of that window, which basically doesn't want to have to be assigned the user to another streaming server, the user makes these windows sliding so it moves with the user.

[00:17:01] Speaker 04:
None of that has any application to live broadcast system.

[00:17:05] Speaker 04:
And the petitioner's motivation, and I would like to highlight this, petitioner's motivation for the combination is exactly what it is.

[00:17:17] Speaker 04:
So for example,

[00:17:27] Speaker 04:
If you are able to look at the petition at page 34, which is attended page 1693, the petition says that Pozita would have found it obvious to implement Wischlitzky's sliding windows into Gideon cross, at least because Wischlitzky teaches that it is advantageous to preconsider traffic for the buffer.

[00:17:47] Speaker 04:
Appendix stage 1944, which is the petition that's required before the court, confirms that.

[00:17:53] Speaker 04:
So the motivation they use or the rely on to implement the sliding windows from Vistitsky to Higgins live broadcast is the advantages touted by Vistitsky itself.

[00:18:04] Speaker 04:
And we started with an extra declaration point by point going to those advantages, showing why none of those advantages apply to live broadcast.

[00:18:12] Speaker 04:
and the board spent many pages addressing one by one each of those issues.

[00:18:17] Speaker 04:
So for example,

[00:18:19] Speaker 04:
Your honors looked at Appendix Page 31 for the board's discussion about killing the buffer, but that's not all the board looked at.

[00:18:27] Speaker 04:
So if your honors were to go to Appendix Page 32, the board stated, we have also considered petitioners' reply argument, that which gives the teachers allocated a new round window and loyally big data when the resources are limited.

[00:18:42] Speaker 04:
So the board, and then it goes on to about two pages of addressing that issue.

[00:18:47] Speaker 04:
The board, one by one, assessed each advantage of sliding windows in which this came, and determined that those advantages are not applicable to live products.

[00:18:56] Speaker 04:
So that basis alone, especially if it's supported by our expert testimony, is sufficient to affirm the board's ruling based on the substantial evidence rule, because it has no relation on whether the compilation relies on control or not control.

[00:19:10] Speaker 02:
Could you just address directly the point on 831 where the board says live streaming does not allow for preloading of content in RAM windows, but yet Geigen seems to say that that can happen?

[00:19:23] Speaker 04:
Yes, so Geigen does not preload a live broadcast.

[00:19:28] Speaker 02:
It does use buffers, though.

[00:19:29] Speaker 04:
It uses buffers.

[00:19:31] Speaker 04:
There is no question that a buffer can be used in the context of Geigen, and that is

[00:19:40] Speaker 04:
opening with pages 41 and 42, the fact that Gegan has a buffer, has no bearing on whether that buffer is preloaded, is it sliding, or not started.

[00:19:49] Speaker 04:
What Gegan does is the following.

[00:19:52] Speaker 04:
Gegan says, I want to broadcast a live stream, but the connection may not be stable, so I may lose 20% of my connection.

[00:19:59] Speaker 04:
So what I'm going to do is that I'm going to request the same stream from four different sources with the idea that if each one loses 20%, they are not going to be overlapping 20%.

[00:20:10] Speaker 04:
So when I resynth them, I have a sequencer which fills in the blank and sends out that computed string.

[00:20:17] Speaker 04:
So it has an in-out buffer with a sequencer in between.

[00:20:20] Speaker 04:
That has no bearing on whether you can key load.

[00:20:24] Speaker 02:
Is that aspect of Gegan ever recognized in the final written decision?

[00:20:28] Speaker 04:
The fact that Gigan uses seeming, yes.

[00:20:31] Speaker 04:
If the final written decision merely explains how Gigan operates, it does explain that it operates based on the seeming.

[00:20:36] Speaker 04:
And I would also point a citation, but as the oral argument before the board, the issue came up as to whether the petitioner does rely on Gigan's seeming, and they do.

[00:20:47] Speaker 04:
It related to arguments that are not the basis for our appeal.

[00:20:49] Speaker 04:
But yes, the final written decision specifically discusses Gigan and the fact that it uses seeming.

[00:21:01] Speaker 01:
I guess the one thing that troubles me about the other argument that really won't come up is that it does seem to be more compared close to saying that read to this combination doesn't work is you don't show how the streaming windows, the actual structure of the streaming windows in the Schmitzky would be imported into PECA.

[00:21:25] Speaker 01:
And if that's the case, that's wrong, isn't it?

[00:21:29] Speaker 04:
Is that the central conflict issue or the motivational issue?

[00:21:34] Speaker 01:
Because I'm not sure.

[00:21:35] Speaker 01:
No, not the motivational issue.

[00:21:36] Speaker 01:
No, on the other part of actually being able to divide.

[00:21:43] Speaker 01:
The Lord's decision was a little confusing to me, but it does seem to me a good point.

[00:21:47] Speaker 01:
They say the petitioner did not show how you take the Schlitzky's sliding windows and incorporate them into peace.

[00:22:00] Speaker 01:
What they mean by that is you have to show physically how the controllers and the schlitzky would work in the evening.

[00:22:07] Speaker 01:
That's illegal, isn't it?

[00:22:10] Speaker 04:
If that were the case, if the board had in fact tried to do a physical correction, that would happen, but that is not what the board thinks.

[00:22:17] Speaker 04:
The board expressly analyzed the very combination performed by Ferdinand.

[00:22:23] Speaker 04:
He's alarmingly out of our six and a half minutes, our veteran shifted to the central control argument, which is an independent basis for the motivation argument.

[00:22:33] Speaker 04:
Petitioner expressly relied on the central control program in disability.

[00:22:40] Speaker 04:
And I understand that on appeal, they dispute that.

[00:22:42] Speaker 01:
But I would like to- So is this really a case of a petitioner has made its argument, and I see some of the sites where they are citing parts of disability that involve the central control of everything.

[00:22:54] Speaker 01:
If they had argued this differently in the petition, that medium teaches all of this, except for this specific type of buffer, and all we need is the concept of sliding windows from Vishudski, would we have a different case here?

[00:23:10] Speaker 04:
We would have a different finding by the board, but in our packet on the response, we explained that even if that's all they have done, the presider wouldn't have been motivated to take issues with sliding windows without its central control.

[00:23:29] Speaker 01:
If we put the motivation issues on, and soon there's motivation, and if the petitioner accepts that he can teach us all of these things, including the buffers and the way we work for live streaming, then all you need is the concept of the sliding windows, which I think is what they're infusing for the specific type of buffering in your patent.

[00:23:50] Speaker 01:
Would that have disclosed everything in the video?

[00:23:54] Speaker 04:
No, it would have been missing a different aspect of the motivation.

[00:24:00] Speaker 01:
I'm not talking about motivation anymore, I'm talking about the actual thing.

[00:24:03] Speaker 01:
What I'm trying to get at is, it seems to me that

[00:24:06] Speaker 01:
that the board did see them as arguing a different, that they were arguing not just the only thing they needed from Vishlitsky was sliding windows, that they were pointing to other parts of it that included the central controller, and those things just didn't work.

[00:24:25] Speaker 01:
But if all they needed was the concept of the type of buffering Vishlitsky does,

[00:24:30] Speaker 01:
I mean, I'm not asking you to concede your case.

[00:24:33] Speaker 01:
I don't have to do that.

[00:24:35] Speaker 01:
But it does seem to me that they argued it that way.

[00:24:39] Speaker 01:
We might be in a different posture.

[00:24:40] Speaker 01:
You might have an electric topper case to defend on appeal because it doesn't seem that the sliding windows are any different than what's climbing your path.

[00:24:50] Speaker 04:
The study windows, the fact that they are windows, that aspect is not different.

[00:24:54] Speaker 04:
But the concept of why you would use a clear history buffer, that's a different case.

[00:25:00] Speaker 04:
It's a very different concept than a video on the mass system.

[00:25:03] Speaker 04:
Because a clear history buffer, you maintain the historical data.

[00:25:06] Speaker 04:
So how can we even page a lot about that?

[00:25:08] Speaker 04:
And we maintain the last few seconds.

[00:25:10] Speaker 04:
so that when the new user comes, you can quickly catch them up.

[00:25:14] Speaker 04:
For a video online system, that concept doesn't exist.

[00:25:17] Speaker 04:
So this gets made that you have those windows because you want to go to the whole video so that the users can go to different points of the video.

[00:25:24] Speaker 04:
So the fact that they're both windows, that's correct.

[00:25:27] Speaker 04:
But they're not called study windows of the time for a reason, because the functionality and the use is very different.

[00:25:34] Speaker 04:
And also, let me then add just two quick points if I may.

[00:25:38] Speaker 04:
If I may, please.

[00:25:40] Speaker 04:
We refer you upon us to Appendix Page 1946.

[00:25:44] Speaker 04:
That petition was required before the court.

[00:25:47] Speaker 04:
And then before the court.

[00:25:49] Speaker 04:
The petition explained that a auditor would have been motivated to combine the functionality from HDSC's stream servers and control servers.

[00:25:59] Speaker 04:
The functionality of your content is necessary to implement the streets with a sliding window into Gigan's proxy devices.

[00:26:07] Speaker 04:
It can't be more clear than that.

[00:26:08] Speaker 04:
That's officially required before the board at the next stage in 1940, since it's expressed as saying that they are implementing the control service.

[00:26:16] Speaker 04:
Similarly, at the end of pages 17, 20, and 17, 21, petitioner amitates figure 2 from Skuzki and is sick of all the stream servers together with control servers, as corresponding to even partial servers.

[00:26:33] Speaker 04:
Appendix pages 1694 and 1695, petitioner expressly relies on the admission control program, which is implemented on the control service and its centrals.

[00:26:45] Speaker 04:
Now why does that matter?

[00:26:47] Speaker 04:
That matters because if you're almost at appendix page 29, that's the board's decision, the board reads importantly, that's the sentence starts with and importantly,

[00:26:59] Speaker 04:
One of the reasons that this system needs the central control is that if some central program has to decide when a request comes in, which of the sliding windows will be the proper one for the user.

[00:27:12] Speaker 04:
Now, what the board says is important is that in the petition, when the petitioner is trying to say, how does the system determine whether we are going to use a pre-configured or a non-pre-configured platistic buffer,

[00:27:26] Speaker 04:
It says that if you don't have a pre-configured Clarity study buffer in your current proxy, you're going to send a request to a different proxy that has a non-pre-configured Clarity study buffer.

[00:27:37] Speaker 04:
Now how is that proxy server going to know which of these other

[00:27:41] Speaker 04:
that the proxies have an unpreconceived or pre-conceived teleprompter.

[00:27:45] Speaker 04:
It doesn't.

[00:27:46] Speaker 04:
That's why in Bishkiski you have a central control because it keeps track of all these different proxies to then route the request to the proper proxy for that request.

[00:27:55] Speaker 04:
And petitioners expressly rely on that aspect to determine whether the request is going to be serviced from a pre-conceived pre-conceived teleprompter on this proxy

[00:28:05] Speaker 04:
or from a non-principle statutory buffer on a different policy.

[00:28:09] Speaker 04:
That's Appendix Stage 29, where the party will make a decision starting with and, importantly,

[00:28:15] Speaker 04:
sentence recognized.

[00:28:17] Speaker 04:
So Petitioner is expressly relying on the functionality of the central control in the petition.

[00:28:22] Speaker 04:
They confirmed that in the reply.

[00:28:24] Speaker 04:
But then they didn't say, if you're going to combine Bischliski's central control with Gigan that makes decisions locally, how is that central control in Bischliski going to function in a localized system like Gigan?

[00:28:37] Speaker 04:
And that's the fundamental flaw in the first independent basis, drafting the decision that the petition will show.

[00:28:45] Speaker 04:
Does that answer your question?

[00:28:51] Speaker 00:
You're close, Chad.

[00:28:52] Speaker 00:
You're right.

[00:28:53] Speaker 04:
So let me just put this on the phone.

[00:28:55] Speaker 04:
But the important thing is that we find the combination.

[00:28:58] Speaker 04:
If you're honest, for example, where to look at

[00:29:02] Speaker 04:
Pages 29 and 30 of the appendix, the board says, at the very least, the commissioner has not explained where each of these controller servers would be disposed in the combined system, and how they would operate to control because proxy code, while implementing the functionality of each of these information control code.

[00:29:22] Speaker 04:
So the board expressed the concept of functionality, which is what the additional attraction is for, and found that the additional hasn't shown even how that centralized functionality is going to operate if you can still purchase it.

[00:29:38] Speaker 04:
If that is the only question, I would be happy to answer.

[00:29:42] Speaker 00:
Thank you.

[00:29:43] Speaker 00:
We have a little less than three minutes.

[00:29:51] Speaker 03:
I just want to address two issues.

[00:29:52] Speaker 03:
First, with respect to the Board's factual finding regarding whether there is a motivation to combine these references.

[00:30:00] Speaker 03:
Again, that – the only place the Board says anything that even hints at a factual finding on that point is the sentence on page – I think it's page 31.

[00:30:09] Speaker 03:
The only evidence cited there is one paragraph from their expert's declaration.

[00:30:12] Speaker 03:
That paragraph has nothing to do with the actual combination that was proposed.

[00:30:16] Speaker 03:
All that paragraph says is that

[00:30:18] Speaker 03:
is that you wouldn't have VCR functionality if you were doing a live stream.

[00:30:23] Speaker 03:
That's completely irrelevant to the combination of the proposing.

[00:30:26] Speaker 03:
All we were saying is that you would use the Schlitzky sliding window to implement the buffer that is already in Gagan.

[00:30:32] Speaker 03:
Gagan already does live streaming with a buffer.

[00:30:34] Speaker 03:
The question is, how would you go about implementing that buffer?

[00:30:37] Speaker 03:
And that circular buffer, was it totally legitimate and advantageous where?

[00:30:41] Speaker 02:
I'll ask you where in the petition we could find that you clearly said that and only that.

[00:30:46] Speaker 03:
Okay.

[00:30:47] Speaker 03:
I guess the best place to move.

[00:30:49] Speaker 03:
You said the petition says other things because there's other arguments, but I think to address your question most clearly, I would point to page 63 of our petition.

[00:30:58] Speaker 03:
That's on appendix page 1722.

[00:31:02] Speaker 03:
And I can just read it.

[00:31:03] Speaker 03:
A posita would have been further motivated to apply Vishlitsky's techniques for the buffer of Gagin, because Gagin describes shared memory that is used to store data packets for live streaming content and logical cues, while Vishlitsky describes an advantageous implementation of a buffer for storing video data screens in a sliding window that is maintained as a simple circular cue, thereby indicating to a posita that the implementation details of Vishlitsky are directly applicable and advantageous in implementing the buffer of Gagin.

[00:31:32] Speaker 03:
And then there's another sentence that talks about why there would be an expectation of success that essentially says the same thing.

[00:31:39] Speaker 02:
So let's just assume for the sake of argument that those words are the simple, best possible combination from your perspective, as Judge Hughes was outlining, perhaps.

[00:31:50] Speaker 02:
Is it an abuse of discretion for the board to not head on address that argument when you surround it with a whole bunch of other arguments that I think you have to concede you did make

[00:32:00] Speaker 02:
about central control and about other issues.

[00:32:03] Speaker 02:
Well, just the word central control appears nowhere in the petition.

[00:32:06] Speaker 02:
Well, central service, you constantly rely on the central service.

[00:32:09] Speaker 02:
We don't rely.

[00:32:10] Speaker 02:
I mean, no, we disagree with that.

[00:32:12] Speaker 02:
We rely on it.

[00:32:12] Speaker 02:
OK.

[00:32:13] Speaker 02:
I understand you disagree.

[00:32:14] Speaker 02:
But is it abuse of discretion if the board fails to see that small scene that you just pointed to?

[00:32:20] Speaker 03:
Well, I mean, the whole basis of the reply goes into Great Link explaining how the board was getting around

[00:32:25] Speaker 03:
if they were reading patent numbers arguments.

[00:32:27] Speaker 03:
So I don't think it's a small scene.

[00:32:28] Speaker 03:
That was the entire basis of the combination.

[00:32:31] Speaker 03:
And again, if you look at the way we map the other elements to Giga, and it's clear Giga itself already teaches the allocation of the buffers.

[00:32:39] Speaker 03:
It already teaches a pre-configured buffer because it teaches a second user who's coming along to ask for a screen that was already in the buffer, right?

[00:32:46] Speaker 03:
So all that's in the petition.

[00:32:47] Speaker 03:
I think it is an abuse of discretion for the board not to analyze that and address it.

[00:32:51] Speaker 00:
So is it your argument

[00:32:54] Speaker 00:
misinterpreted the petition at the institution stage or later in the final written determination?

[00:33:01] Speaker 03:
I think only in the final written determination, in fact, the board seems to acknowledge that it got wrong, that it changed its view after the institution.

[00:33:08] Speaker 00:
So the board says that, based on the full record, they said that they agree with some, and that the court now understands petitioners' combination to include more controlled aspects than were previously recognized.

[00:33:22] Speaker 00:
Is that the misapprehension?

[00:33:24] Speaker 03:
For sure, that was strong evidence.

[00:33:26] Speaker 00:
The board changed its mind, or rather it made an altruist view between the institutions.

[00:33:32] Speaker 00:
Now, the board can do that, can't it?

[00:33:35] Speaker 03:
I mean, it can change its view about its factual findings.

[00:33:38] Speaker 03:
What it can't do is change the combination and the rationale for the combination as the petition presented.

[00:33:43] Speaker 03:
It was obligated to analyze that combination.

[00:33:45] Speaker 00:
The board can change its view.

[00:33:49] Speaker 03:
The board can change its views on fine construction and on factual findings, but that's not what happened here.

[00:33:53] Speaker 03:
It changed its view as to what the petition has to do with it.

[00:33:56] Speaker 00:
But that's the misrepresentation and the misapprehension that you're arguing.

[00:33:59] Speaker 03:
Yes.

[00:34:00] Speaker 03:
Yeah.

[00:34:00] Speaker 03:
But the board misunderstood what our combination was and didn't analyze that then.

[00:34:04] Speaker 00:
It analyzed it differently.

[00:34:04] Speaker 00:
The board has a right to do that.

[00:34:06] Speaker 00:
No, it's not.

[00:34:07] Speaker 00:
As long as it's supported by substantial evidence.

[00:34:10] Speaker 03:
No, I disagree with you.

[00:34:11] Speaker 03:
The board has an obligation to consider the grounds we put forward in our petition.

[00:34:15] Speaker 03:
And to answer that question, not a different one.

[00:34:17] Speaker 00:
But from that point, from institution to final room determination, the board has the discretion to change its view.

[00:34:27] Speaker 03:
On some things, but not on what the question before it was.

[00:34:30] Speaker 00:
It can change its view as long as it's supported by substantial evidence.

[00:34:34] Speaker 03:
It can make, it can make, it can change its factual findings, yes, that's correct, as long as there's support for it.

[00:34:40] Speaker 00:
Scalia – Tell us what happened here.

[00:34:42] Speaker 03:
Oh, I disagree, because, again, the only factual finding that is relevant is the one that says there would be no buffer used in a live streaming service.

[00:34:50] Speaker 03:
And that's unsupported by any of the evidence in the case, because Gagan already has a buffer for doing exactly that.

[00:34:56] Speaker 00:
That was good.

[00:34:59] Speaker 00:
We have your argument and we have our reason to thank you for that.

[00:35:03] Speaker 00:
This case will now be taken under advisory.