[00:00:00] Speaker 03:
Okay, our next case this morning is 22-21-40, O'Brien versus Microsoft Corporation.

[00:00:09] Speaker 03:
Mr. Lobecki.

[00:00:12] Speaker 03:
Go ahead.

[00:00:16] Speaker 03:
Mr. Lobecki, would you like to start?

[00:00:20] Speaker 01:
May it please the Court, I am Mark Lobecki.

[00:00:24] Speaker 01:
I represent the inventor and patent holder, Royal O'Brien, in this matter.

[00:00:31] Speaker 01:
Your Honors, the 808 patent essentially is the patent to a mini filter, a unique mini filter, a novel mini filter, which interacts with the already extant filter manager of every version of Windows since Windows 7.

[00:00:52] Speaker 01:
What it does is when an application calls for a specific bit of data, it

[00:01:01] Speaker 01:
Either it looks, it references its MLAT, which is a memory lookup audit table, seeks to find whether it's local or whether the data packs are located remotely, and then tells the application that everything is on board while, when it finds a remote packet, it downloads it in the background

[00:01:30] Speaker 01:
so that, for instance, in the context of gamers, the opportunity exists for, say, map games, to play that portion of the map game that is present while the rest of the map is downloading.

[00:01:45] Speaker 01:
So essentially allowing gamers to get to the work of gaming immediately.

[00:01:51] Speaker 01:
We have four bases for

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the overturning the PTAB's rulings in this case.

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They are, first, that Dr. Howe was not essentially a person of ordinary skill in the art and could not opine as to what was obvious.

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Two, that his opinion as he presented it was essentially to simply parrot

[00:02:25] Speaker 01:
what was found he did not he used the generalized advantages of the mini filter architecture and simply adopted that as his testimony and therefore much like in TQ Delta and other cases by the score Activision and what have you it simply wasn't specific evidence.

[00:02:52] Speaker ?:
C

[00:02:53] Speaker 01:
that essentially that the board heard when it used its own expertise to essentially construct something that wasn't part of the petition and wasn't part of the declaration by Dr. Ho.

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And finally, that they read out of the limitations being

[00:03:21] Speaker 01:
installed on the local or client machine.

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It can't be a meaningful claim, and therefore, if it's facially meaningless, it can't be a valid interpretation of the claim.

[00:03:38] Speaker 01:
Mini-filter architecture is unique to Windows.

[00:03:43] Speaker 01:
Doesn't occur in Unix.

[00:03:45] Speaker 01:
Doesn't occur in other environments.

[00:03:48] Speaker 01:
Because it's unique to Windows,

[00:03:51] Speaker 01:
One would expect that Microsoft, the publisher of Windows, when it is presenting a petition, would have found somebody with a background in Windows.

[00:04:02] Speaker 01:
Instead, they bring someone from the telecommunications industry to be their expert, someone who's admitted that is only real experience in this sort of thing.

[00:04:16] Speaker 01:
And of course, we are not denigrating

[00:04:18] Speaker 01:
his abilities, his knowledge.

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He's a very intelligent person.

[00:04:23] Speaker 02:
Did you ever move to exclude Dr. Howe from being an expert in this matter in front of the board?

[00:04:30] Speaker 01:
No, because we felt that he had expertise in, for instance, defining what a person having ordinary skill in the art would be.

[00:04:40] Speaker 01:
So the whole of his testimony wouldn't necessarily be stricken.

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It would be those portions

[00:04:46] Speaker 01:
that relate to UNIX.

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And we only found out when we did the cross-examining deposition that he had, if you look at his CV, it doesn't suggest that all of his experience is limited to UNIX.

[00:05:04] Speaker 02:
And so... Do we have to find an abuse of discretion in order for you to win on this argument?

[00:05:09] Speaker 01:
No, I think your substantial evidence still

[00:05:12] Speaker 01:
applies here.

[00:05:13] Speaker 01:
I think that the APA still applies here.

[00:05:16] Speaker 01:
I think that this is an issue if someone is not themselves or does not possess the expertise to be testifying on something, then the board did not have the substantial evidence that was necessary to make the decision.

[00:05:33] Speaker 02:
I understand your first argument, but correct me if I'm wrong, to be

[00:05:38] Speaker 02:
there should not be in the record certain portions of Dr. Howe's testimony.

[00:05:44] Speaker 02:
It should have been stricken by the board.

[00:05:47] Speaker 02:
And as we review what the board did, we should not consider the parts of his testimony that you think should not have occurred.

[00:05:54] Speaker 02:
Is that a fair summarization of your contention?

[00:05:57] Speaker 01:
It is, with one addendum to what you are saying.

[00:06:02] Speaker 01:
You will note that in all of the briefing

[00:06:05] Speaker 01:
with regard to this at the lower level, we continued to bring up the lack of expertise.

[00:06:13] Speaker 01:
So it wasn't as though it wasn't part of the record.

[00:06:16] Speaker 01:
It was not formalized, and I agree, it was not formalized in the procedural step of an objection.

[00:06:25] Speaker 01:
So we did not object to his testimony.

[00:06:29] Speaker 01:
But in every pleading, we pointed out that he had no expertise in this field.

[00:06:36] Speaker 02:
So I guess what you're saying is the board knew you thought he did not have the appropriate expertise, rejected your contention, and we just have to say whether or not the board had substantial evidence for its rejection of your criticism of his expertise.

[00:06:53] Speaker 02:
Is that it?

[00:06:54] Speaker 01:
Much better than I put it, yes, Your Honor.

[00:06:56] Speaker 01:
But yes, that's where I'm going.

[00:06:59] Speaker 01:
OK.

[00:07:00] Speaker 01:
So essentially, if you look.

[00:07:06] Speaker 01:
the only evidence that was presented to the board as far as a motivation to combine was page three at appendix seven four four that portion of the two thousand and four microsoft filter driver development guide and all the testimony and indeed the declaration that supported the petition merely said okay

[00:07:34] Speaker 01:
these are all the advantages to using mini-filter architecture.

[00:07:40] Speaker 01:
And that was the sole motivation that was presented as far as combining Alon and Christensen.

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So what we've got is a problem because in looking for motivation, one would have to essentially use the syllogism

[00:08:04] Speaker 01:
that works a little bit like this.

[00:08:07] Speaker 01:
ALON has a filter.

[00:08:10] Speaker 01:
Mini-filter architecture, as stated by the development guide, is really nifty stuff.

[00:08:16] Speaker 01:
So why don't we take the filter of ALON and make it really nifty by virtue of Christensen?

[00:08:22] Speaker 01:
The problem is ALON doesn't have a filter.

[00:08:26] Speaker 01:
And the only individual who...

[00:08:31] Speaker 01:
Pardon me?

[00:08:32] Speaker 03:
There's testimony that had the equivalent of a filter.

[00:08:35] Speaker 01:
No, there isn't.

[00:08:36] Speaker 01:
The only testimony to that effect, the only testimony to that effect, Judge Dyke, is by Judge Braden.

[00:08:46] Speaker 01:
She's the one who said, well, isn't Alon, haven't you already agreed that Alon is a filter?

[00:08:53] Speaker 01:
and at that hearing I said no we hadn't and there was nothing in our pleadings that suggests we agreed that it was a filter the only real reference to Elon being a filter is actually in the petition in a footnote where in the petition they said this is now known as a legacy filter but there is no testimony and that's really the key here is that essentially

[00:09:21] Speaker 01:
the board stepped out of its role as the arbiter of the evidence and provided the evidence.

[00:09:28] Speaker 01:
And in fact, they did it a couple of times to suggest that Alon, oh no, Alon's a filter, because what we did is we looked at the guide ourselves, found independent references in that same filter design guide, and put them together in order to show that Alon does filtering type of stuff.

[00:09:50] Speaker 01:
But importantly, Dr. Ho never testified that Elon possessed a filter, that Elon was doing something that would be called filtering, that Elon is a filter.

[00:10:05] Speaker 01:
And I think that's important here, because without a filter in Elon, even Dr. Ho said, look, when I put the question to him,

[00:10:17] Speaker 01:
Are you saying then that even if A-line isn't a filter, Christensen would improve A-lining?

[00:10:23] Speaker 01:
He goes, well, you can't really improve something that isn't there.

[00:10:28] Speaker 01:
So he acknowledged the fact that the presence of the filter was an important aspect of what was being presented there.

[00:10:38] Speaker 01:
I even asked him in

[00:10:41] Speaker 01:
the cross-examination.

[00:10:42] Speaker 01:
Would you please show me, doctor, where the filter is?

[00:10:46] Speaker 01:
And if you look in the appendix at 21.05 from page 12, lines one through three, he couldn't find such a filter in A-line.

[00:11:08] Speaker 01:
What's really important here

[00:11:10] Speaker 01:
however, is that Dr. Ho has no significant experience in the domain of Windows architecture.

[00:11:21] Speaker 01:
He is a unit expert.

[00:11:23] Speaker 01:
He is a device driver expert, which is distinct from filtered drivers.

[00:11:28] Speaker 01:
His expertise is limited to that field.

[00:11:35] Speaker 01:
And they are distinguishable enough, especially in this specific aspect of the architecture, because these many filters do not exist in UNIX and there isn't an analog in UNIX wherein they might be said to exist or this knowledge would be useful.

[00:11:55] Speaker 01:
That being the case, it's extremely difficult to use him and to

[00:12:01] Speaker 01:
Essentially, that's the credibility of this process in someone who has no expertise in this field, in this particular field.

[00:12:11] Speaker 01:
A very intelligent man.

[00:12:13] Speaker 01:
We're not disputing that.

[00:12:16] Speaker 01:
He has a fair amount of expertise in other fields, just not this field.

[00:12:24] Speaker 01:
You want to save the rest of your time for a bubble?

[00:12:28] Speaker 01:
One more point, Your Honor, and then I will

[00:12:31] Speaker 01:
Oh, is it?

[00:12:32] Speaker 01:
Oh, that's my yellow.

[00:12:33] Speaker 01:
OK.

[00:12:34] Speaker 01:
Last point is that in reading out a particular limitation, the installed on a computing device occurs in 1B Roman eye.

[00:12:50] Speaker 01:
It also occurs later in 1D.

[00:12:53] Speaker 01:
In 1D, it asks whether the information is available locally.

[00:12:59] Speaker 01:
So locally can't be across a network.

[00:13:03] Speaker 01:
Locally means right here, and therefore on a computing device means a single client computing device.

[00:13:09] Speaker 01:
That is the expressed intent of the patent holder when he wrote the claims.

[00:13:16] Speaker 01:
Thank you, Your Honor.

[00:13:18] Speaker 03:
Thank you.

[00:13:25] Speaker 00:
May it please the court, Joe McAuliffe for Apple eMicrosoft.

[00:13:29] Speaker 00:
Your Honor, in the year 2000, Dan Ilon and others patented a streaming system that broke.

[00:13:34] Speaker 03:
Why don't you get right to the point?

[00:13:36] Speaker 00:
OK, Dr. Ho is an expert in this.

[00:13:38] Speaker 00:
There was a finding of fact that he was an expert at Joint Appendix, page 18.

[00:13:42] Speaker 00:
And I quote, Dr. Ho has at least ordinary skill in the art.

[00:13:47] Speaker 00:
That was a finding of fact supported by his educational background, which includes.

[00:13:52] Speaker 03:
What was the evidence about his Windows work?

[00:13:55] Speaker 00:
He testified that he was part of the Microsoft Developers Network for a while and that he had developed Windows applications.

[00:14:02] Speaker 00:
He also had experience with streaming and filters.

[00:14:04] Speaker 00:
The board found, and I quote, he has familiarity with known technologies such as streaming technology, operating system methods for handling I.O.

[00:14:13] Speaker 00:
requests, and loadable device driver management architectures.

[00:14:17] Speaker 00:
Page 18 of the joint appendix.

[00:14:19] Speaker 00:
That was a finding of fact supported by substantial evidence.

[00:14:22] Speaker 00:
This man was a person of ordinary skill in the art, and that is why Mr. O'Brien never moved to exclude his testimony or object to him after they crossed him and before they filed their patented response.

[00:14:33] Speaker 00:
OK, what about the question of whether Elon has a filter?

[00:14:36] Speaker 00:
It's irrelevant.

[00:14:38] Speaker 00:
The combination set forth in the petition at Page's

[00:14:45] Speaker 00:
joint-dependence page twelve seventy seven proposed taking the streaming functionality of the line and implementing it on the system of christian i thought the combination was supported by the idea that you know i have legacy filter and that it was the board found that that you want to have to be argued that it had a legacy filter board found that the equivalent of it because it killed where's the evidence or finding equipment that the evidence uh... it includes

[00:15:15] Speaker 00:
uh... doctor doctor hose testimony and exhibit ten ten that is that uh... so in the in the petition we argued that it was so because of the figure four nylon exhibit ten ten which is the uh... the uh... developers guide which defines the evidence of the supports the equivalence is their testimony yes uh...

[00:15:38] Speaker 00:
the joint appendix 2203 to 2204.

[00:15:43] Speaker 00:
Dr. Ho's testimony there, and the exhibit 1010, which is at joint appendix 7.

[00:15:52] Speaker 00:
I'm sorry?

[00:15:52] Speaker 02:
2203, 2204, where is that?

[00:15:55] Speaker 00:
Page 110, line 18, page 111, line 8.

[00:16:01] Speaker 00:
And I have other sites, too, where he further testified.

[00:16:05] Speaker 00:
110, line what?

[00:16:07] Speaker 00:
8.

[00:16:16] Speaker 03:
I don't see where he says that Elon has the equivalent filter.

[00:16:21] Speaker 03:
What does he say to that?

[00:16:24] Speaker 00:
Well, what he says there is that he says what he testified was he couldn't find the word filter in Elon when he searched it.

[00:16:31] Speaker 00:
But he said, but it did not necessarily have to disclose exactly those words to teach or for a person of ordinary skill even to recognize that the functionality of the streaming support system of Elon could be implemented as a managed filter in the system of Christians.

[00:16:46] Speaker 00:
And there's other testimony at 2204.

[00:16:52] Speaker 00:
That was 2204, I think.

[00:16:55] Speaker 00:
11119.

[00:17:06] Speaker 00:
This is what the board cited.

[00:17:08] Speaker 00:
Through 2205, which would be page 112.7.

[00:17:14] Speaker 00:
Well, you did already ask me, but what I told you is that teachings can describe a concept to a posita without exactly the same words you know, or any specific words that, like history, teachers can teach about a lot of things.

[00:17:26] Speaker 00:
They can all teach the same concept without using the same exact words.

[00:17:30] Speaker 00:
And so he goes on to explain that filtering is part of Ilon, and that's what the board found.

[00:17:37] Speaker 00:
Indeed, the board also relied on, I believe it was the Cudapetti,

[00:17:42] Speaker 00:
prior art reference that was in the record that the board found it performed analogous filtering and called it a filter, analogous to the ILON system.

[00:17:55] Speaker 00:
But once again, the combination was the combination of ILON streaming functionality on Christianson.

[00:18:01] Speaker 00:
So the question was, would it have been obvious to make that combination?

[00:18:05] Speaker 00:
We never said that we would take a filter like Mr. Lovietti just mentioned.

[00:18:09] Speaker 00:
We never said we would take the filter of Ilon and modify it.

[00:18:13] Speaker 00:
That was not part of the petition.

[00:18:15] Speaker 00:
That was not part of our analysis ever.

[00:18:17] Speaker 00:
That's a straw man.

[00:18:19] Speaker 00:
We only said, and I haven't mentioned it, at page 1277 of the Joint Appendix, we specifically defined our combination as the streaming functionality of Ilon on the system.

[00:18:40] Speaker 00:
of Christians.

[00:18:45] Speaker 00:
I wanted to address one more thing Mr. O'Ready said, and that was on the motivation to combine analysis.

[00:18:51] Speaker 00:
He suggested that the motivation to combine was solely based on the filter driver developer guide.

[00:19:00] Speaker 00:
That is inaccurate.

[00:19:02] Speaker 00:
In fact, our reasons to combine, which begin at Joint Appendix page 1278 through

[00:19:13] Speaker 00:
1283 included many other reasons to combine.

[00:19:18] Speaker 00:
It certainly did rely on that developer's guide and the seven different reasons that are listed in that prior art document for why one should use this minifilter architecture.

[00:19:29] Speaker 00:
But those were not the only motivations to combine at all.

[00:19:33] Speaker 00:
So the board had ample evidence on which to find as a fact that there was a motivation to combine the streaming functionality of Ilon

[00:19:42] Speaker 00:
with the mini-filter architecture of Christensen.

[00:19:45] Speaker 02:
You just touched briefly on the installed on a computing device argument.

[00:19:49] Speaker 02:
What's your understanding of their argument?

[00:19:51] Speaker 02:
They seem to be maybe suggesting a claim construction was necessary.

[00:19:55] Speaker 00:
Yeah, the claims say computing device.

[00:19:58] Speaker 00:
The claims do not say client.

[00:20:00] Speaker 00:
They say it's limited to a client.

[00:20:02] Speaker 02:
The argument is that it's limited to a client.

[00:20:04] Speaker 00:
That's right.

[00:20:04] Speaker 00:
We say it's not, but the board went ahead and addressed that argument and found that both Ilon and Christensen disclose clients.

[00:20:13] Speaker 02:
Even if it were limited to a client?

[00:20:17] Speaker 00:
Yes.

[00:20:18] Speaker 00:
I don't see how it's a claim construction argument you have to decide since there's finding facts on both sides of it supported by substantial evidence.

[00:20:26] Speaker 00:
So we win either way, I think.

[00:20:30] Speaker 03:
Anything further?

[00:20:31] Speaker 00:
Unless your honors have other questions for me.

[00:20:33] Speaker 03:
No, I don't think so.

[00:20:35] Speaker 03:
Thank you.

[00:20:36] Speaker 03:
Mr. Lorbecki?

[00:20:45] Speaker 01:
Construction can't occur such that it makes a claim meaningless.

[00:20:51] Speaker 01:
In limitation 1D, the very last line of claim 1 and its correspondent claim in 14, it talks about whether the information is available locally.

[00:21:06] Speaker 01:
That's why it has to be a client computer, because that's where the application is running.

[00:21:13] Speaker 01:
the expression consistently throughout the claim.

[00:21:17] Speaker 01:
So it's got to be the client computer.

[00:21:23] Speaker 01:
Importantly, however, one of the things that the other arguments that the board placed forward to justify its decision that it could be spread out in a distributed network included

[00:21:43] Speaker 01:
the point that, well, the FSD, which is the driver for the files, the VSD, which is the virtual storage drive, all those are located by Ilon on the client.

[00:22:02] Speaker 01:
Well, the problem is, if you look at paragraph 128 of Dr. Ho's declaration in supporting the petition, he says, to be clear,

[00:22:14] Speaker 01:
To remove all doubt, I note the combination would not be implemented as a file system driver as Christensen distinguishes his managed filters as file system filter drivers.

[00:22:35] Speaker 01:
It also says, similarly, the combination would not be implemented as a virtual drive or a catching system.

[00:22:42] Speaker 01:
Therefore, by placing all of these things, as the board did, in iLine on the client, they're wrong.

[00:22:51] Speaker 01:
Because all of those things in Dr. Ho's testimony are eliminated by the combination.

[00:22:58] Speaker 01:
So it's stretching quite a bit.

[00:23:00] Speaker 01:
And the board was doing a lot of the petitioner's work

[00:23:05] Speaker 01:
in this instance.

[00:23:08] Speaker 03:
I think we're out of time.

[00:23:10] Speaker 03:
Okay.

[00:23:10] Speaker 03:
Thank you.

[00:23:11] Speaker 01:
Thank you, Your Honors.

[00:23:12] Speaker 01:
I appreciate the opportunity to present here.

[00:23:14] Speaker 01:
Okay, thank you.

[00:23:15] Speaker 03:
The case is submitted.