[00:00:00] Speaker 01:
The first case is M2M Solutions versus Amazon, 2022, 1122, and 1124.

[00:00:07] Speaker 01:
Mr. Hinckley.

[00:00:13] Speaker 02:
Good morning.

[00:00:13] Speaker 02:
May it please the court.

[00:00:16] Speaker 02:
We're confronted here with a PTAB board.

[00:00:18] Speaker 02:
that was simply unwilling to decide the arguments actually raised in the petitions on the merits and went to extraordinary lengths to avoid doing so in a variety of different ways.

[00:00:32] Speaker 02:
One prime example of this is that the boards made extensive and dispositive reliance on its own suesponte unpatentability theories that had never been raised in Amazon's petitions or elsewhere in the IPR proceedings below.

[00:00:48] Speaker 02:
So as we see in arguments B and C in the blue brief, this occurred in relation to the requirements in the independent claims and certain dependent claims about management instructions needing to be based upon the results of processing certain types of consumer information.

[00:01:05] Speaker 02:
By relying on its own suespante, unpatentability theories, the board committed substantive violations of statutory law, which constitute reversible legal error.

[00:01:18] Speaker 03:
impermissible, sua sponte, unpatentability theory.

[00:01:23] Speaker 03:
Can you just quickly identify what is that theory that you believe the board relied upon that was impermissible for it to do?

[00:01:32] Speaker 02:
Well, there's many different theories, Your Honor.

[00:01:36] Speaker 02:
We walked through probably six or seven of them specifically identifying

[00:01:41] Speaker 02:
and explaining which ones were suespante in nature in the briefing.

[00:01:46] Speaker 02:
I can rattle some of those off to you if you'd like, but it's spelled out in great detail there.

[00:01:50] Speaker 02:
The reason... I guess it's well then to put a finer point on it.

[00:01:59] Speaker 03:
As I understand it, the board found your claims unpatentable, M2M's claims unpatentable.

[00:02:05] Speaker 03:
under a broader understanding of the managing claim limitation and then a narrower understanding of the managing claim limitation that you M2M urged.

[00:02:17] Speaker 03:
Am I right?

[00:02:19] Speaker 03:
It's the narrower interpretation that it then went forward and

[00:02:25] Speaker 03:
and found the claims to be unpatentable even under your narrower construction that you're saying is a suesponte theory by them?

[00:02:33] Speaker 02:
Well, yes, several suesponte theories.

[00:02:35] Speaker 02:
Yes, the board right from the start said it was rejecting M2M's claim construction, but nonetheless, essentially the entirety of its analysis in both IPRs in both final written decisions is under M2M's claim construction.

[00:02:51] Speaker 03:
Well, it also found the claims unpatentable under the broader construction of the management limitation, right?

[00:02:57] Speaker 02:
That's true, but we don't know.

[00:02:58] Speaker 03:
OK, so it found it unpatentable under both ways.

[00:03:01] Speaker 03:
And then you're saying, under your narrower understanding of the claim, that was unfair, because the petition didn't raise that theory.

[00:03:10] Speaker 02:
Under M2M's correct construction of the claims, the board's entire analysis, essentially, was devoted to suesponte, unpatentability theories that had never

[00:03:21] Speaker 02:
been raised in the petition.

[00:03:22] Speaker 03:
So what about the IPR petition at A396, when the petitioner said, alternatively, even if the board were to apply M2M's incorrect narrower construction, these claims are still no good, because CLOBA teaches a one up, one down transmission, where

[00:03:43] Speaker 03:
the one down transmission is based upon, the instructions in the one down transmission are based upon all of the selections and preferences the customer sends up in the one up transmission from the customer device to the server.

[00:03:58] Speaker 03:
Don't think that was an alternative theory raised in the petition at A396?

[00:04:04] Speaker 02:
That was a theory raised under Amazon's own claim construction

[00:04:08] Speaker 02:
where merely the sending of a transmission needs to be based upon.

[00:04:12] Speaker 01:
No, that's not correct.

[00:04:13] Speaker 01:
If you look at 396.

[00:04:14] Speaker 02:
We could read it out loud together.

[00:04:17] Speaker 03:
Do you have A396 with you?

[00:04:19] Speaker 02:
Yes, I do.

[00:04:21] Speaker 03:
So I don't have it in front of me.

[00:04:22] Speaker 03:
Please read it.

[00:04:23] Speaker 03:
You don't have JA396 in front of you?

[00:04:27] Speaker 02:
Oh, excuse me, 396.

[00:04:28] Speaker 02:
Yeah, I do.

[00:04:29] Speaker 01:
OK.

[00:04:33] Speaker 03:
Shall we read it together?

[00:04:34] Speaker 02:
Yeah, which sentence did you have in mind, Your Honor?

[00:04:36] Speaker 03:
Okay, look at line three.

[00:04:37] Speaker 03:
Finally, even if the board adopts the incorrect construction proposed by patent owner in the prior related IPR proceedings, that the claimed management instructions must be based upon the results of having processed at least some of the received consumer usage information, CLOBA still discloses this limitation.

[00:04:55] Speaker 03:
And then the paragraph goes on and talks about

[00:04:58] Speaker 03:
the section of CLOBO, which is really about the one up transmission, one down transmission embodiment in figure 1X that I was talking about before.

[00:05:09] Speaker 03:
So therefore, this is pretty clear to me that the petition did provide this alternate theory of unpatentability of the managing limitation.

[00:05:18] Speaker 03:
based on your M2M narrow reconstruction of the management?

[00:05:23] Speaker 02:
I'm not suggesting that the patent didn't provide some theories by Amazon, excuse me, the petition didn't provide some theories by Amazon about how M2M's construction is met.

[00:05:33] Speaker 02:
What I'm saying is the board did not follow those theories, it followed its own different theories.

[00:05:39] Speaker 02:
This particular theory here, and it's the one Amazon used throughout the petitions, is a theory that Cloba's

[00:05:46] Speaker 02:
Delta instructions would serve as downloading instructions and that they would download new files relating to the consumer usage information onto the mobile devices.

[00:05:56] Speaker 02:
I don't see the word Deltas in this paragraph.

[00:06:00] Speaker 02:
If you read through this passage, there needs to be instructions that are based upon the results of processing consumer usage information.

[00:06:10] Speaker 02:
The only instructions that have been identified in this analysis

[00:06:14] Speaker 02:
are the instructions appearing in CLOBA at 2011 to 17, which are what we refer to as the delta instructions.

[00:06:23] Speaker 03:
So what Amazon was arguing is that... There's no citations to that column in line in this alternate theory in the petition.

[00:06:32] Speaker 02:
Well, it would come earlier in the analysis.

[00:06:35] Speaker 03:
It cites to column 51-56, and this is all about the one up transmission, one down transmission.

[00:06:43] Speaker 02:
Yes, but where are the management instructions?

[00:06:44] Speaker 02:
None of those sites contain sites to management instructions.

[00:06:47] Speaker 03:
Well, it doesn't say management instructions, but it does talk about sending preferred information and instructions in the one-down transmission.

[00:06:57] Speaker 02:
No, it does not.

[00:06:59] Speaker 02:
In its passages about downloading and one-down transmissions, it does not mention instructions.

[00:07:05] Speaker 02:
And none of these sites here mention instructions.

[00:07:08] Speaker 03:
Well, it talks about a synchronization process in this passage of clothing.

[00:07:12] Speaker 03:
And it talks about how in the one down transmission, you're sending information and synchronization changes.

[00:07:19] Speaker 03:
And then later in that same paragraph, it talks about information and instructions are sent.

[00:07:24] Speaker 03:
They're cached and then they're sent.

[00:07:26] Speaker 02:
None of these citations.

[00:07:28] Speaker 03:
And as the board said, yes, when I look at this paragraph, it's talking about sending management instructions, IE synchronization instructions.

[00:07:35] Speaker 03:
That's a fact finding.

[00:07:37] Speaker 03:
It's supported by substantial evidence.

[00:07:40] Speaker 02:
The board is relying on a completely different theory, Your Honor.

[00:07:44] Speaker 02:
What Amazon is saying is that there are downloading instructions that are therefore based upon the results of processing this consumer usage information.

[00:07:53] Speaker 02:
And that those downloading instructions, in particular,

[00:07:56] Speaker 02:
include the Delta instructions.

[00:07:59] Speaker 02:
The board did not find that there were downloading instructions that satisfied these claim elements.

[00:08:06] Speaker 02:
The board, in fact, rejected the idea that Amazon had ever even asserted any kind of downloading instructions theory.

[00:08:13] Speaker 01:
Counsel, you're well into the second half of your time.

[00:08:19] Speaker 01:
Are there other issues you want to raise?

[00:08:26] Speaker 01:
You've made a general statement earlier about Suarez-Ponte projections, and you've been responding to Judge Chan at one of those.

[00:08:35] Speaker 01:
See if there are other issues you wanted to address.

[00:08:39] Speaker 02:
I do, but I'd like to reserve three minutes for rebuttal.

[00:08:42] Speaker 02:
Would I be able to use a bit more of my opening time here?

[00:08:45] Speaker 01:
Absolutely.

[00:08:45] Speaker 02:
OK, let me please do that.

[00:08:47] Speaker 02:
So we have gone through and specifically pointed out all of the

[00:08:52] Speaker 02:
series that the board raised that were completely different than anything that was in the petition and Amazon has never come back in the red brief and said no those weren't series here's where we actually raised those in the petition look at the petition page X

[00:09:11] Speaker 02:
Amazon never did that and could not do that because the several Suez-Fonte theories that were actually at the absolute heart of the board's analysis were never in the petitions, and Amazon hasn't even tried to show where they were in the petitions in its briefing.

[00:09:27] Speaker 02:
And what Amazon has done instead is to try to defend the board's Suez-Fonte theories on the merits, to say these Suez-Fonte unpatentability theories that the board has raised are

[00:09:39] Speaker 02:
supported by substantial evidence, and even gone so far as to say that that would then be harmless error if the board's suespante theories were supported by substantial evidence.

[00:09:51] Speaker 02:
But that's not the law.

[00:09:52] Speaker 02:
That's not how the law works.

[00:09:54] Speaker 02:
As a matter of law, it's legally irrelevant whether or not

[00:09:57] Speaker 02:
the board's sui sponte theories are supported by substantial evidence.

[00:10:02] Speaker 02:
It's an outright violation of statutory law for the board to rely upon them, irrespective of their degree of merit.

[00:10:08] Speaker 03:
What if we disagree with this argument by you?

[00:10:10] Speaker 03:
What if we look at the petition at A396, and then the second petition at A5196-97, and say these are preserved, raised, alternate theories, and that the board adopted those theories?

[00:10:25] Speaker 03:
So what if we

[00:10:26] Speaker 03:
reach that conclusion based on a review of the record.

[00:10:30] Speaker 02:
The only way we get to harmless error here is to find theories that were completely independent of the unlawful Sue Espante theories and that were themselves supported by substantial evidence that the board relied upon.

[00:10:46] Speaker 03:
Here's another question.

[00:10:47] Speaker 03:
These patents, they're about to expire.

[00:10:50] Speaker 03:
Is that right?

[00:10:54] Speaker 03:
Priority date goes back pretty far.

[00:10:56] Speaker 02:
Yes, I guess, I think 2022 maybe for some of them, 2023.

[00:11:00] Speaker 03:
2023, so I'm just wondering, is there any other pending litigation with respect to these patents or any related patents in the family?

[00:11:10] Speaker 02:
There's pending litigation with respect to these two that are at issue here and there's pending litigation with respect to a subsequent continuation patent.

[00:11:19] Speaker 03:
There is, okay.

[00:11:21] Speaker 03:
So anything we do here, would that possibly affect that litigation?

[00:11:26] Speaker 02:
Potentially, with respect to claim construction, I suppose could have some effect.

[00:11:33] Speaker 02:
If you make substantive decisions about what CLOBA teaches, I suppose that could have some effect.

[00:11:42] Speaker 02:
But the point is, everything that's been done here by the board or Sue Espante theories

[00:11:49] Speaker 02:
If Amazon wanted to prove that these weren't suicide theories, it would have been very easy to do so.

[00:11:55] Speaker 02:
It could have walked through each of them.

[00:11:56] Speaker 02:
It could have showed you where in the petition that particular theory was raised, and it has not done so.

[00:12:02] Speaker 02:
And there's a very good reason why it has not done so.

[00:12:05] Speaker 02:
That's a substantive legal violation.

[00:12:08] Speaker 02:
This court is very much in need of a refresher and an update on its case law with respect to this particular issue.

[00:12:15] Speaker 02:
And what I mean is extending cases like Inray at Magnum Oil and Orin Technology, both of which your honor, Judge Shen, was involved with.

[00:12:25] Speaker 02:
Those are the best cases out there for saying that a board's not allowed to rely upon its own sua sponte theories.

[00:12:33] Speaker 02:
But what's happened since those cases is that SAS has come down.

[00:12:37] Speaker 02:
SAS has spelled out the reasons why this is true and tied it into the statutory scheme that Congress established.

[00:12:45] Speaker 01:
Counsel, you wanted to save three minutes, so we'll give you three minutes for rebuttal.

[00:12:50] Speaker 02:
Yes, Your Honor.

[00:12:50] Speaker 02:
Thank you.

[00:12:52] Speaker 01:
Ms.

[00:12:52] Speaker 01:
McCullough.

[00:12:54] Speaker 00:
Good morning, Your Honors.

[00:12:55] Speaker 00:
May it please the Court?

[00:12:57] Speaker 00:
We heard a lot about Suicide Theories just now.

[00:13:00] Speaker 00:
I think Your Honor gave a good example of one theory that the Board ruled on, analyzed in great detail, that unquestionably was presented in the petition.

[00:13:09] Speaker 00:
The other two theories that the Board relied upon for independent findings that CLOVA discloses the managing limitations were theories made in response to arguments presented in the patent owner response.

[00:13:22] Speaker 00:
The Board found this expressly.

[00:13:23] Speaker 00:
There were two.

[00:13:25] Speaker 00:
One was that CLOBA unquestionably discloses a server that sends objects that are intended to be loaded onto client devices in response to that one-up transmission that identifies selected channels and selected preferences.

[00:13:42] Speaker 00:
Now, in the patent owner response, M2M was contesting the construction of management instructions.

[00:13:47] Speaker 00:
And it said, well, at a minimum, management instructions has to include data sent for the purposes of modifying an asset.

[00:13:55] Speaker 00:
Now, the board, and just as a side, I think that's it, 1736 is where M2M proposed this in the patent donor response.

[00:14:03] Speaker 00:
The board agreed in the final written decision.

[00:14:05] Speaker 00:
It said, OK, management instructions, we're going to construe that to mean commands for commanding a device to perform a specific action.

[00:14:14] Speaker 00:
But that includes what M2M proposes, which is data sent for the purposes of modifying an asset.

[00:14:20] Speaker 00:
And the board found that's exactly what CLOBA discloses.

[00:14:24] Speaker 00:
The board cited the reply at pages 19 to 20, that's appendix 4058 and 49, where Amazon said, in response to this construction argument proposed by M2M, that's an additional reason the CLOBA discloses this limitation.

[00:14:39] Speaker 00:
And the board agreed with that.

[00:14:41] Speaker 00:
The third independent basis for the board's finding that CLOBA discloses this limitation was under M2M's characterization of column 20 of CLOBA relating only to what's called delta synchronization instructions.

[00:14:56] Speaker 00:
Now the board found that that didn't accurately, that wasn't an accurate characterization of CLOBA.

[00:15:02] Speaker 00:
But the board said that even if you could read the beginning of column 20 as applying only to delta related synchronization instructions,

[00:15:10] Speaker 00:
Those synchronization instructions would still have been based upon analyzing the selected channels and the preferences.

[00:15:17] Speaker 00:
All of that information is what the server would have processed and then sent down the responsive delta instructions.

[00:15:24] Speaker 00:
So each of those three independent bases for the board's finding, those were all based on either an argument that was presented in the petition or appropriate responsive arguments made pursuant to 4223B.

[00:15:38] Speaker 03:
I also want to just note that... This is a legal matter.

[00:15:42] Speaker 03:
You're saying that you pointed to one thing in CLOBA as meeting the managing limitation under M2M's narrow construction.

[00:15:53] Speaker 03:
And then you said the board found three different things in CLOBA that meet the managing limitation under M2M's narrow construction based on

[00:16:05] Speaker 03:
something that the patent owner said and then you rebutted that.

[00:16:11] Speaker 03:
And I guess what I'm wondering is, at bottom, the final written decision is now relying on three different independent bases for CLOBA teaching this claim limitation when the petition only raised one of those things.

[00:16:27] Speaker 03:
And why would it be permissible for the board in a final written decision to go outside the framework of what you actually

[00:16:35] Speaker 03:
proposed in the petition to identify other things not raised by you in the petition as meeting the managing limitation.

[00:16:44] Speaker 00:
Let's say two things, Your Honor.

[00:16:45] Speaker 00:
First, one of those three things unquestionably was raised in the petition.

[00:16:49] Speaker 03:
That's not my question.

[00:16:51] Speaker 00:
Then I would say also, Your Honor,

[00:16:53] Speaker 00:
Under CFR 4223b, petitioner is allowed to respond to arguments that are raised in the patent owner response.

[00:17:00] Speaker 00:
That is what those second and third theories are.

[00:17:03] Speaker 03:
Right, but what happened here sounds like your version of a rebuttal ended up expanding out the theory for why COBA teaches this particular claim limitation.

[00:17:15] Speaker 03:
Beyond the four corners of what was actually proposed in the petition.

[00:17:20] Speaker 03:
Am I right or wrong?

[00:17:21] Speaker 03:
I mean, for example, you didn't propose that the deltas in CLOBA met the managing limitation under M2M's narrow reconstruction in your petition.

[00:17:32] Speaker 03:
Is that fair to say?

[00:17:33] Speaker 00:
That's correct, Your Honor.

[00:17:34] Speaker 00:
OK.

[00:17:35] Speaker 03:
But the board ultimately found that CLOBA meets this managing limitation because of this delta thing in CLOBA, right?

[00:17:45] Speaker 00:
I think that's not exactly what the board found, Your Honor.

[00:17:48] Speaker 00:
The board did say that this didn't expand or change the nature of what petitioner argued in the petition.

[00:17:55] Speaker 00:
What petitioner argued in the petition is that this one down transmission from Clova's server, that includes synchronization instructions and objects that was in the petition.

[00:18:04] Speaker 00:
and those synchronization and instructions and objects are then used to load the requested objects, all associated objects, onto the client.

[00:18:13] Speaker 00:
In response to patent owner's arguments that no, that portion of CLOBA, that disclosure in CLOBA did not describe management instructions, petitioner explained that even the alleged defects in that passage in CLOBA, those were in fact additional examples of management instructions, even if you argued that

[00:18:33] Speaker 00:
this set of synchronization instructions that sent down, that for some reason only applied to deltas.

[00:18:38] Speaker 00:
That's incorrect, and the board found that that wasn't an accurate way to characterize CLOBA.

[00:18:43] Speaker 00:
But if it was, that would be the same thing that the petition had pointed to.

[00:18:46] Speaker 00:
And if you're talking about objects that are sent down in that one down transmission, again, the petition pointed to that one down transmission that was sent for purposes of loading the requested objects onto the client.

[00:18:58] Speaker 00:
So the board found that this wasn't an expansion, it wasn't a change of what the petition had presented,

[00:19:03] Speaker 00:
Just in response to patent owner's arguments raised in the response, there were additional ways in which Clover's disclosure met this limitation.

[00:19:11] Speaker 03:
Can you just describe how the Deltas fits within what you actually said at A396?

[00:19:19] Speaker 00:
So again, Your Honor, we did not rely specifically on Deltas.

[00:19:22] Speaker 03:
I know, but the Board did, at least in part.

[00:19:24] Speaker 03:
So I'm just trying to understand why is it that the Board's reliance on the Deltas actually fits within what you proposed at A396.

[00:19:34] Speaker 00:
The petition also cited back to its earlier discussion for this particular limitation.

[00:19:40] Speaker 00:
As your honor noted, the 8396 passages does not rely on the earlier section of column 20, which is what M2M says applies specifically to deltas.

[00:19:49] Speaker 00:
But earlier in this discussion of the managing instructions, the petition did.

[00:19:55] Speaker 00:
And for example, at 395,

[00:19:57] Speaker 00:
It's specifically noted that in response to receiving that one-up transmission from the client that includes the user's selection of channels and preferences, as well as deltas to the server in the one-up transmission, in response, the server will send all synchronization instructions and related objects to the device in that one-down transmission.

[00:20:17] Speaker 00:
And their petitioner did cite the earlier portions of column 20, which is what Intuem now relies on as relating to delta instructions.

[00:20:25] Speaker 03:
So that passage at A395 talks about the deltas and the one up transmission, right?

[00:20:31] Speaker 03:
It doesn't say in the one down.

[00:20:34] Speaker 00:
Well, Your Honor, this is exactly the point.

[00:20:36] Speaker 00:
If this one down transmission is only related to deltas, which is what M2M argues, then the petition relied on that.

[00:20:44] Speaker 00:
It cited that directly.

[00:20:46] Speaker 00:
If it's not, if it's more expansive and it relates to instructions to synchronize the client device, which is what

[00:20:52] Speaker 00:
Amazon believes in the board found to be the correct interpretation of CLOBA, then CLOBA again discloses this managing limitation, even under M2M's narrow construction.

[00:21:03] Speaker 00:
I would note also, Your Honors, that as Judge Ten noted, I think at the beginning, that we only get to the board's fact findings if the court overturns the plain meaning construction of managing.

[00:21:15] Speaker 00:
And I would say only that the language of the claim

[00:21:18] Speaker 00:
which modifies the term managing with the clause based on the results of processing the consumer usage information, that plain language compels the board's broad construction.

[00:21:29] Speaker 03:
Is there any reason why Amazon needs us to reach that managing plain construction dispute?

[00:21:39] Speaker 03:
If we agreed that under M2M's construction, not only was the theory preserved, but the unpatentability

[00:21:48] Speaker 03:
round that the board reached based on that narrow construction is supported by substantial evidence?

[00:21:55] Speaker 00:
No, Your Honor.

[00:21:56] Speaker 00:
That's because in that additional continuation patent that counsel referenced a moment ago, M2M has amended the claim language so that the plain language does recite management instructions that are based on the results of processing consumer usage information.

[00:22:09] Speaker 00:
So there is no later pending case or later patent that would be affected by that construction determination.

[00:22:15] Speaker 03:
Is there an IPR on that continuation patent?

[00:22:18] Speaker 03:
Yes, Your Honor.

[00:22:19] Speaker 03:
What's the status of that IPR?

[00:22:20] Speaker 00:
It's been instituted, and I believe it's fully briefed, except for the surreply.

[00:22:24] Speaker 03:
Does it rely on CLOBA?

[00:22:25] Speaker 00:
It does rely on CLOBA.

[00:22:28] Speaker 00:
Does the court have further questions?

[00:22:30] Speaker 01:
Thank you, counsel.

[00:22:32] Speaker 01:
Thank you.

[00:22:33] Speaker 01:
Mr. Hench, who has three minutes for rebuttal.

[00:22:36] Speaker 02:
Judge Chen, now that I've had a moment to think, let's go back to your initial point.

[00:22:40] Speaker 02:
You asked me about a passage on Appendix 396 talking about an Amazon theory about using management instructions to download new files onto the device.

[00:22:52] Speaker 02:
Yes, Amazon raised that theory in the petition, but the point is that the PTAB did not address that theory and in fact denied that it had ever even been raised at all and went on to instead rely solely upon its own suesponte theories.

[00:23:10] Speaker 02:
So if you quickly would want to look, please, at page 126 of the appendix.

[00:23:16] Speaker 02:
Here you see in the top paragraph where M2M tried to argue against Amazon's downloading theory and say Amazon's wrong, those instructions wouldn't download, and they wouldn't be based upon the consumer information.

[00:23:33] Speaker 02:
The PTAB said Amazon didn't raise the downloading theory.

[00:23:38] Speaker 02:
So whatever you're saying M2M is completely irrelevant because that isn't even the theory that Amazon raised about downloading.

[00:23:47] Speaker 03:
Could you point me where on page 126?

[00:23:50] Speaker 02:
It's on page 126 on the top paragraph and it's also again in the other IPR it would be on page 261.

[00:23:59] Speaker 02:
These are parallel sites from the two different IPRs.

[00:24:02] Speaker 02:
So this was the problem.

[00:24:04] Speaker 02:
The board

[00:24:05] Speaker 02:
Could you just read a sentence because I don't I'm not connecting what you're arguing with what I'm reading It's saying that m2m's line of argument does not address the petitioners showing When m2m was arguing about those instructions not acting as downloading instructions the board is saying Amazon didn't even argue that they were downloading instructions and so you're not even responding to Amazon's argument

[00:24:32] Speaker 02:
The point is the board didn't adopt Amazon's arguments.

[00:24:35] Speaker 02:
It adopted only its own arguments.

[00:24:37] Speaker 02:
The board did not adopt theories about the management instructions being downloading instructions for new files.

[00:24:44] Speaker 02:
Instead, the board adopted theories that the management instructions would instead modify existing files that already resided on the mobile devices.

[00:24:53] Speaker 02:
And that's not true, first of all, and that's not what Amazon ever argued.

[00:24:59] Speaker 02:
You know, look no further than it.

[00:25:02] Speaker 02:
I'll give you a perfect example from each of the two IPRs.

[00:25:05] Speaker 02:
In the first IPR, the 1204, at the very heart of the board's entire analysis was that instructions at column 21, lines 1 to 2 from CLOBA satisfied the managing claim element.

[00:25:19] Speaker 02:
The board cited those instructions 12 to 15 different times in its analysis, and it was the linchpin of its entire analysis.

[00:25:28] Speaker 02:
Guess what?

[00:25:29] Speaker 02:
Amazon never cited or relied upon those instructions from CLOBA at any time in the IPR proceedings in its petition or elsewhere.

[00:25:37] Speaker 03:
That paragraph is talking about Figure 1X, right?

[00:25:42] Speaker 03:
That paragraph that starts at Column 20 and ends at Column 21, it's talking about embodiment Figure 1X, right?

[00:25:49] Speaker 02:
The instructions I just referred to come after the figure 1x.

[00:25:53] Speaker 03:
Talking about figure 1x.

[00:25:55] Speaker 03:
That paragraph.

[00:25:56] Speaker 03:
Which paragraph?

[00:25:58] Speaker 03:
The paragraph in which the citation to column 21, lines 1 to 2.

[00:26:04] Speaker 02:
No, the instructions in 21, 1 to 2 are a further embodiment that comes after the discussion of 1x.

[00:26:12] Speaker 02:
And 1x itself is simply

[00:26:14] Speaker 02:
a description of downloading but without any reference to instructions.

[00:26:19] Speaker 02:
So 1X is not really relevant to find in the instructions that we need to find.

[00:26:24] Speaker 02:
A second example in the other petition, the 1205, every theory that the board raised for unpatentability relied upon the Hoyle prior art reference as supposedly teaching the idea that existing files already residing on the mobile devices would be modified

[00:26:44] Speaker 02:
And therefore, that delta instructions or some similar synchronization instructions would be based upon tracked client behavior information.

[00:26:53] Speaker 02:
That argument about Hoyle, which infuses every argument the board made in the 1205 petition, was never raised at all in the petitions or in the proceedings whatsoever.

[00:27:05] Speaker 02:
And indeed, Amazon's only position was that Hoyle taught

[00:27:10] Speaker 02:
using tracked client behavior to choose new targeted advertisements for downloading.

[00:27:16] Speaker 01:
As you see, your red light is on.

[00:27:19] Speaker 01:
And I think that concludes your argument.

[00:27:21] Speaker 01:
The case is submitted.

[00:27:23] Speaker 03:
Thank you, sir.

[00:27:24] Speaker 03:
I recommend you go back and look at JA 1494 to 95, column 20 to 21, about figure 1x.

[00:27:31] Speaker ?:
Yeah.