[00:00:00] Speaker 02: My first argued case is Harris Holdings versus Google and Samsung, 2022, 1269, and 1270. [00:00:11] Speaker 02: Mr. Campbell, please proceed. [00:00:20] Speaker 04: May I please court John Campbell for appellate Harris Holdings. [00:00:25] Speaker 04: The determination of the patent trial and appeal board on the 431 patent should be remanded for failure to consider evidence of conception and reduction to practice for three reasons. [00:00:35] Speaker 04: First, the PTAB violated the APA when it disregarded evidence. [00:00:40] Speaker 04: Second, the PTAB improperly placed a burden of establishing COVAX was not prior art on Paris. [00:00:47] Speaker 04: And third, the PTAB's decision conflicts with the AIA. [00:00:55] Speaker 02: law that says judges aren't like pigs searching for truffles. [00:01:01] Speaker 02: And litigants have to specify what it is that supports their case. [00:01:08] Speaker 02: And the PTAP disregarded evidence because there were hundreds and hundreds of pages. [00:01:18] Speaker 02: And you or your client was citing [00:01:25] Speaker 02: incorporation by reference which is not permitted so why doesn't isn't that justification for not looking at some of the evidence well your honor first of all there's no need for the [00:01:40] Speaker 04: the PTAB judges to search around as truffle, as pigs for truffles, trying to use your donors, say, the evidence was placed into the record and Paris met its burden of production. [00:01:53] Speaker 04: At that point, petitioner Google, who has the burden of persuasion, must persuade the PTAB that Kovach's prior [00:02:01] Speaker 04: And the way that would play out is the petitioner in their reply brief would explain why it's still prior art. [00:02:09] Speaker 04: And the respondent could explain in their server bottle why they're wrong. [00:02:14] Speaker 04: And that's exactly what- I'm sorry. [00:02:16] Speaker 01: Go ahead. [00:02:17] Speaker 04: Finish here. [00:02:17] Speaker 04: That's exactly what happened in this case. [00:02:20] Speaker 04: All the issues were joined through the briefing, and there were four issues raised by Google that the PTAB walked through in 13 pages, but they just disregarded the evidence rather than deciding those issues. [00:02:32] Speaker 01: Now, if I heard you correctly, you said that once they had the evidence before the PTAB, even if it wasn't referenced in their patent owner response, that was enough to meet their burden of production. [00:02:47] Speaker 01: Yes, Judge Bryson. [00:02:49] Speaker 01: The question, of course, is does that meet the burden of production or is the burden of production met when you present that evidence in a way that the rules of the PTAB require it to be presented? [00:03:01] Speaker 04: Well, Judge Bryson, is the Supreme Court held in St. [00:03:05] Speaker 04: Mary's honor? [00:03:05] Speaker 04: And a strict reading of that would say that the quote is, by producing evidence, petitioners sustain their burden of production. [00:03:12] Speaker 01: Well, I guess it really depends on what you mean when you say producing evidence. [00:03:16] Speaker 01: If you simply back up a semi-truck to the PTO and you unload a lot of evidence, I don't know that that counts as producing evidence. [00:03:26] Speaker 01: Doesn't the PTABS [00:03:29] Speaker 01: rules requiring production of evidence in a certain way govern what constitutes production of evidence for purposes of the burden of production. [00:03:40] Speaker 04: Well, Your Honor, the PTAB certainly has rules for producing evidence, and the evidence is in record. [00:03:46] Speaker 04: There's no dispute about that. [00:03:47] Speaker 04: So 42.6 goes to argument. [00:03:51] Speaker 04: not evidence. [00:03:52] Speaker 04: The evidence is in record. [00:03:54] Speaker 04: And so it's not as though in this case that there was a truck backed up and evidence dumped in. [00:04:01] Speaker 04: There was a notice for the petitioner that this evidence that was produced and identified in the table of exhibits, and really all focused on an inventor's declaration, established an earlier conception reduction to practice and diligence. [00:04:17] Speaker 04: Google was on notice of that and explained why they believe that evidence didn't suffice. [00:04:22] Speaker 03: Is that enough? [00:04:24] Speaker 03: Is it enough to say you're on notice to back up that truck again and unload all these documents and then simply say, you know, the shipment has arrived. [00:04:37] Speaker 03: Isn't it still your burden to explain how that evidence is relevant and how that evidence plays into your theories? [00:04:47] Speaker 03: And without that, then it seems to me that the board is correct to, as you say, disregard it. [00:04:55] Speaker 04: I think, Judge Raina, this is where the Supreme Court in Greenwich Colliery said there's a problem when we start to refer to the burden of proof as having two different burdens, a burden of production and a burden of persuasion. [00:05:08] Speaker 03: The burden of proof. [00:05:09] Speaker 03: But you're putting that burden that belongs to you, you're putting that on the board. [00:05:13] Speaker 03: You want the board to go and filter [00:05:16] Speaker 03: and to manage all that evidence, as you call it. [00:05:19] Speaker 03: And now you're asking us to do it. [00:05:21] Speaker 04: No, Your Honor. [00:05:23] Speaker 04: There is a burden of production, which is not a burden of persuasion or a burden of proof. [00:05:27] Speaker 04: It's a burden of production that St. [00:05:28] Speaker 04: Mary says submits evidence. [00:05:31] Speaker 04: The evidence was submitted. [00:05:32] Speaker 04: The petitioner then bears the burden of proof to show that Kovacs, in this instance, remains prior art. [00:05:39] Speaker 04: The petitioner bears that burden. [00:05:41] Speaker 01: Would you agree that the burden of production can be characterized fairly as [00:05:45] Speaker 01: essentially presenting evidence sufficient to establish a prima facie case? [00:05:56] Speaker 01: That's essentially what St. [00:05:57] Speaker 01: Mary's says, doesn't it, in so many words. [00:06:00] Speaker 04: Well, it says producing evidence to sustain their burden. [00:06:06] Speaker 01: Evidence that would be sufficient to justify a conclusion [00:06:11] Speaker 01: in your client's favor if it were, A, believed and, B, unrebutted. [00:06:15] Speaker 01: That's a fair definition of burden of production, is it not? [00:06:22] Speaker 01: Well, that's a little tough. [00:06:23] Speaker 04: Well, it says, by producing evidence, whether ultimately persuasive or not. [00:06:28] Speaker 01: Right. [00:06:28] Speaker 01: In other words, it's got to be enough to justify a conclusion in your favor. [00:06:34] Speaker 01: To be persuasive. [00:06:35] Speaker 01: To be, well, in order to meet the burden of production. [00:06:39] Speaker 01: If you don't have [00:06:40] Speaker 01: enough to actually get you over the line if it's unrebutted and if it's believed. [00:06:46] Speaker 01: You haven't satisfied the burden of producing evidence to support your position, have you? [00:06:51] Speaker 04: That sounds to me, Judge Bryson, like that would be contrary to the parenthetical of St. [00:06:56] Speaker 04: Mary's. [00:06:57] Speaker 04: It says by producing evidence, parenthetical, whether ultimately persuasive or not. [00:07:02] Speaker 01: Well, ultimately, after the other side has come in and shown that there are other considerations. [00:07:09] Speaker 01: If I recall the language from St. [00:07:10] Speaker 01: Mary's, it's essentially stating the prima facie evidence requirement. [00:07:17] Speaker 04: Again, whether ultimately persuasive or not, I don't think depends on what the other side does. [00:07:21] Speaker 01: Well, I guess it depends on what the word ultimately means. [00:07:26] Speaker 01: I would assume that they mean at the end of the day, at the end of all our litigation. [00:07:31] Speaker 02: But if it's self-illuminous, if it's self-illuminous, [00:07:35] Speaker 02: that it doesn't stand out particularly and specifically. [00:07:40] Speaker 02: It doesn't satisfy the burden of production. [00:07:46] Speaker 04: There may be notice issues that the PTAB wants to make rules on, but in this case, that wasn't a problem. [00:07:53] Speaker 04: The evidence stood out. [00:07:54] Speaker 04: I mean, the PTAB went through in 13 pages and described the evidence. [00:07:58] Speaker 04: The Paris did, in its response brief, explain that, as to conception, it was shown through Alexander Kurganov's testimony. [00:08:07] Speaker 04: As to reduction of practice, the evidence produced in Mr. Kurganov's declaration. [00:08:12] Speaker 04: As to diligence, it relied on source code revision laws. [00:08:16] Speaker 04: So it's not as though there's this mountain of evidence that the PTAB judges need to go through. [00:08:21] Speaker 04: There is evidence that is cited in the response brief that the petitioner needs to go through. [00:08:27] Speaker 04: and explain why, under their burden of persuasion, that is still prior art. [00:08:33] Speaker 02: And what's the burden here on us? [00:08:38] Speaker 04: No, not here, Your Honor, because this violates both the Administrative Procedures Act. [00:08:44] Speaker 04: It improperly shifts the burden under Supreme Court law of St. [00:08:48] Speaker 04: Mary's and Greenwich Collieries. [00:08:50] Speaker 04: And it violates the IA. [00:08:51] Speaker 04: So that's de novo. [00:08:53] Speaker 04: It's a de novo review, because it's a matter of law of whether those instances were violated here, and they were. [00:09:02] Speaker 03: So I think Judge Bryson, to go back to the board, [00:09:06] Speaker 03: decisions is how it handles its processes, how it administers its procedures under an abuse of discretion standard. [00:09:16] Speaker 04: Your honor, you review whether the board's application of its rules under [00:09:22] Speaker 04: Abuse of discretion is standard. [00:09:24] Speaker 04: But the application of whether the board is violating the APA, violating Supreme Court rules on burdens of persuasion and burden of production, those are matters of law which this court reviews de novo. [00:09:38] Speaker 04: And I think part of the issue here is that there's a difference in the burdens here. [00:09:44] Speaker 04: There's a burden of production and a burden of persuasion. [00:09:47] Speaker 04: And the Supreme Court back in Greenwich Colliery said, look, this has been ambiguous as defined as a burden of proof, as though there's two different burdens of proof. [00:09:55] Speaker 04: And that's not the case. [00:09:57] Speaker 04: And they wanted to get rid of that ambiguity and focus on burden of persuasion being burden of proof and burden of production being something wholly separate. [00:10:06] Speaker 04: And unfortunately, this court's opinions since that time has still talked about there being two different burdens of proof. [00:10:15] Speaker 04: And this is an opportunity to clarify that and say, no, there's not two different burdens of proof. [00:10:20] Speaker 04: The Supreme Court has told us that. [00:10:22] Speaker 04: What there is is there's one burden of proof. [00:10:24] Speaker 04: That's a burden of persuasion. [00:10:26] Speaker 04: And then there's a burden of production. [00:10:28] Speaker 04: And to go back, Judge Bryson, what you were talking about, production, you produce the evidence. [00:10:34] Speaker 04: It's in evidence. [00:10:35] Speaker 04: Maybe you don't have enough evidence. [00:10:36] Speaker 04: Maybe your evidence all standing alone without any response from the other side simply is not persuasive. [00:10:43] Speaker 04: And that doesn't ultimately convince the fact-finder or the decision-maker. [00:10:51] Speaker 04: But it is an evidence. [00:10:51] Speaker 04: You did produce something. [00:10:54] Speaker 04: You did meet a burden of production. [00:10:56] Speaker 04: The burden of production doesn't require that to overcome some threshold of being convincing or not convincing. [00:11:03] Speaker 04: It needs to be. [00:11:04] Speaker 02: These problems are expired, aren't they? [00:11:08] Speaker 04: Yes. [00:11:08] Speaker 04: I don't need to change that. [00:11:10] Speaker 02: Is there other litigation going on? [00:11:13] Speaker 04: There is litigation going on. [00:11:14] Speaker 04: I'm not sure on the expiration date, Judge Loretta. [00:11:17] Speaker 04: You have to double check that. [00:11:18] Speaker 04: But there is litigation going on, yes. [00:11:19] Speaker 04: There is litigation currently stayed pending the outcome of this. [00:11:24] Speaker 02: But not other than against Google and Samsung. [00:11:28] Speaker 04: It's actually just Google at this point. [00:11:29] Speaker 01: Just Google. [00:11:30] Speaker 04: Yes. [00:11:33] Speaker 01: So when you say some evidence, are you suggesting that any degree of evidence, any amount of evidence going generally to the issue on which a burden of production is imposed is enough? [00:11:48] Speaker 01: Even if, for example, there are three elements that you need to satisfy as part of your burden of production. [00:11:55] Speaker 01: You introduce evidence as to one, that surely wouldn't be enough, right? [00:11:58] Speaker 04: surely wouldn't be enough to convince anyone. [00:12:00] Speaker 01: No, no. [00:12:01] Speaker 04: But it wouldn't even be enough to meet the burden of production, would it? [00:12:04] Speaker 04: At that point, we're having a real hard time with distinguishing, and this is the problem the Supreme Court had. [00:12:10] Speaker 01: But this is a pretty simple hypothetical. [00:12:13] Speaker 01: There are three elements that are necessary to establish. [00:12:18] Speaker 01: And the burden of production is on you, let's say, as to this issue. [00:12:22] Speaker 01: You introduce evidence as to one of those three elements, but not the other two. [00:12:27] Speaker 01: Have you satisfied your burden of production? [00:12:32] Speaker 04: I think given that the Supreme Court says producing evidence, whether ultimately persuasive or not, I think that would fall into yes, you produced evidence. [00:12:40] Speaker 04: No, it's not ultimately persuasive. [00:12:42] Speaker 04: It can't be persuasive. [00:12:44] Speaker 04: And so your Honor's question specifically said establishing, right? [00:12:48] Speaker 01: And this is where- Well, establish or at least provide a basis on which. [00:12:53] Speaker 01: an adjudicator could rule in your favor if that evidence were believed and unrebutted. [00:13:00] Speaker 04: OK. [00:13:00] Speaker 04: And I think the difference in language there is important, right? [00:13:05] Speaker 04: So no, somebody could not find for you if that evidence stood and was unrebutted. [00:13:10] Speaker 04: You only produced evidence on one element. [00:13:13] Speaker 04: But establishing, right? [00:13:15] Speaker 04: Establishing, that's the language of magnum oil tools. [00:13:18] Speaker 04: And that's the language that comes from the interference context. [00:13:21] Speaker 04: And that's the language the PTAB relied upon when it was struggling with these burdens of what has to be done and establishing as a burden of persuasion. [00:13:32] Speaker 04: And just to be clear, the hypothetical is very interesting, but it's not what happened here. [00:13:39] Speaker 04: There was not just a failure on one element or another. [00:13:44] Speaker 02: Counsel, you're well into your rebuttal time. [00:13:46] Speaker 02: We'll save two minutes for you. [00:13:48] Speaker 02: at least. [00:14:05] Speaker 00: Good morning, Your Honor. [00:14:06] Speaker 00: It's Nathan Speed on behalf of Google. [00:14:08] Speaker 00: May it please the court. [00:14:09] Speaker 00: I'll start right with the St. [00:14:10] Speaker 00: Mary's case and go to the burden of production issue. [00:14:12] Speaker 00: That was the focus of the argument. [00:14:14] Speaker 00: St. [00:14:14] Speaker 00: Mary's case, it's US, or you have the site, but the pin cited at 507, clearly states that the burden of production requires that the defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the fact, the trial fact, would support a finding that unlawful discrimination in that case occurred. [00:14:34] Speaker 00: So St. [00:14:35] Speaker 00: Mary's is [00:14:35] Speaker 00: Directly on point and stating that the burden production is not merely producing exhibits into the record but providing an explanation as to the significance of those exhibits so that the Burden then shifts to the other side to refute them So I think st. [00:14:50] Speaker 00: Mary's is a title 7 discriminatory action case in that context under the McDonald McDonald Douglas framework [00:14:57] Speaker 00: If an employee comes forth with certain facts, they establish a prima facie case that they were terminated for discriminatory reasons. [00:15:05] Speaker 00: The burden production then shifts to the employer to bring forth evidence that the reason for the termination was not discrimination. [00:15:14] Speaker 00: in the court in St. [00:15:15] Speaker 00: Mary's made clear that it's not just producing evidence but an explanation so that the employee or the party moving in the first instance has a place to focus their arguments and attack the prima facie cases your honor was raising earlier. [00:15:28] Speaker 00: Under Paris's reading of the burden of production, in an employment discrimination case, the employer would be okay to come in [00:15:35] Speaker 00: and put on the table the entire employment history of the employee and say, the reason we terminated the employee is found in their burden of production met. [00:15:45] Speaker 00: And now both the employee and the district court have to go through the evidence and try to figure out what in there could possibly be a basis for the termination. [00:15:53] Speaker 00: That can't possibly be what the burden of production is. [00:15:57] Speaker 01: Is it your position that the reference to ultimately persuasive [00:16:01] Speaker 01: means at the end of the case after all the evidence has been in, or what's your view of that language in the Supreme Court's case? [00:16:09] Speaker 00: Correct. [00:16:10] Speaker 00: It means that in the context of anti-dating evidence, the petitioner in IPR has an initial burden of production to identify prior art. [00:16:18] Speaker 00: If the patent owner, as Paris did in this case, elects to assert effectively an affirmative defense that they can predate that prior art, they undertake a burden of production to demonstrate how they're able to get that earlier conception through earlier conception and reduction of practice. [00:16:35] Speaker 00: Then, once all the evidence is on the table, it's ultimately on the petitioner, Google in this case, to prove by a preponderance of the evidence at the PTAB that their wrong were right and that this prior art truly predates their invention and renders it obvious. [00:16:49] Speaker 00: So ultimately, it's after everything's on the table, the fact finder goes back and looks at it. [00:16:53] Speaker 00: For the burden of production, [00:16:54] Speaker 00: We agree with what St. [00:16:56] Speaker 00: Mary says, that the board might have to take as true whatever they say, even if we think it's incredible and not reliable. [00:17:02] Speaker 00: They need to, for the burden of production, take it as true. [00:17:06] Speaker 00: But the problem for Paris here is everything they said about the significance of their evidence was in a 23,000-word declaration that they tried to incorporate by reference into the patent on a response against, which is prohibited by the board's rules. [00:17:18] Speaker 00: And there was some discussion about the truffles and having to go through and how Google was able to find the truffles. [00:17:25] Speaker 00: I want to be clear that the only reason that we were able to find the truffles in this case is because they did offer an explanation as to what the relevance of the evidence was. [00:17:33] Speaker 00: They submitted three declarations and a 50-page claim chart that kind of pointed to the different evidence. [00:17:38] Speaker 00: But they introduced that evidence in an improper manner. [00:17:41] Speaker 00: For the next case, if Paris's position were adopted, the next patent owner has no incentive to include declarations or claim charts. [00:17:48] Speaker 00: They'll just back up the truck with evidence and put it onto the petitioner to have to sort through. [00:17:53] Speaker 00: So we were only able to identify the flaws in their evidence substantively because they had attempted below to provide that explanation. [00:18:03] Speaker 00: They just did it in a procedurally improper manner. [00:18:06] Speaker 00: And the fact that they introduced three declarations and a claim chart below demonstrates that when they filed their patent owner response, they knew that the burden of production required more than just producing evidence. [00:18:18] Speaker 03: What is that enough? [00:18:20] Speaker 03: If one of the declarations, for example, has citations to the record, other citations, wouldn't that citation, the information in that citation [00:18:30] Speaker 00: The problem there would be that their reference to the declaration attempted to incorporate bodily the entirety of that declaration, which the board has consistently found would be a violation of their incorporation by reference rules. [00:18:46] Speaker 00: And this court, in the General Access case, faced a very similar circumstance, where you had a patent owner that was attempting to ante-data reference [00:18:53] Speaker 00: They had a single paragraph on conception. [00:18:56] Speaker 00: They said conception was done on day 8x as evidence in our expert declaration who has a claim chart that maps the claims to a single document. [00:19:07] Speaker 00: And the board said you can't do that. [00:19:09] Speaker 00: We would have to go to the expert declaration, then go to the claim chart to figure out what your arguments are, and you're supposed to put them into the briefing. [00:19:15] Speaker 00: You didn't do that. [00:19:16] Speaker 00: This court affirmed [00:19:17] Speaker 00: explaining that the patent owner, when asserting any dating affirmative defense effectively, has a burden of production to come forth and provide some explanation in its briefing as to the relevance of its exhibits and can't force the board and the parties to have to go and look at those arguments that are outside the plenics. [00:19:35] Speaker 00: So this case is directly on point with, or general access is directly on point with this case. [00:19:40] Speaker 00: If anything, it's worse here, because in that case, you had a single expert, a single claim chart, and a single document that was the anti-dating document. [00:19:48] Speaker 00: Here we have the entire second volume of the appendix is effectively source code that was just dumped on to Google and to the board. [00:19:56] Speaker 00: And so we have a lot more evidence that we would have had to sort through. [00:19:59] Speaker 00: The suggestion that there's any inconsistency with this court's case law and the Supreme Court case law, I don't think that's correct. [00:20:07] Speaker 00: Technology Licensing Court identifies in the very first paragraph of the legal discussion the fact that the idea of burdens needs to be referenced in the plural because there are two burdens, a burden of production and a burden of persuasion. [00:20:21] Speaker 00: It walks through in detail what the differences between the two are. [00:20:25] Speaker 00: It's completely consistent with St. [00:20:27] Speaker 00: Mary's. [00:20:28] Speaker 00: The Greenwich case from the Supreme Court that Paris cited in its brief, that case simply stands for the proposition that when the APA in 1946, when Congress passed the APA, Section 7C of the APA said that the moving party had the burden of proof. [00:20:45] Speaker 00: And the question was, what does burden of proof mean? [00:20:47] Speaker 00: Because historically, it could mean either persuasion or production. [00:20:51] Speaker 00: The court said that by 1946, the consensus among the legal scholars was that it meant burden of persuasion, and Congress was assumed to pass the law with that understanding of it. [00:21:02] Speaker 00: And so the APA, where it says burden of proof, was interpreted to mean burden of persuasion. [00:21:07] Speaker 00: That is completely consistent with what this court said in Technology Licensing Corp. [00:21:11] Speaker 00: And Technology Licensing Corp is the case that dynamic drinkware sites to apply the rules of burden, the shifting of burden production to the patent owner in any dating context to the end of parties review proceedings. [00:21:22] Speaker 00: It's the same language that the Magnum oil discussion sites as well. [00:21:28] Speaker 00: Unless there's any other questions on COVAG, I can briefly discuss the written description issue in the case. [00:21:35] Speaker 00: The key limitation on the written description issue, and this is for the 847 IPR, so it would be completely dispositive for that IPR, and that's all challenge claims of the 084 patent and claim 9 of the 431 patent. [00:21:56] Speaker 00: The key limitation is that you need a system, all the claims were said, a system that periodically searches for and identifies new websites and adds them to a pre-existing list of websites. [00:22:08] Speaker 00: We identified the Kurkinoff 262 reference as [00:22:12] Speaker 00: a primary reference and combined it with a secondary reference to argue that these claims would be unpatentable. [00:22:18] Speaker 00: Paris, again, brought an anti-dating defense, this time pointing to an earlier application in their priority chain and said that they can claim earlier priority to that application. [00:22:28] Speaker 00: Under section 120, they would need to demonstrate that they have written description support to do so. [00:22:33] Speaker 00: So the whole focus was whether or not there is written description support for a system that searches for and identifies new websites and adds them to a preselected listing of websites. [00:22:42] Speaker 00: The board looked at the disclosure of the 996 application, which is the priority document, and it concluded that the only discussion of any searching for anything new is in an embodiment that deals with devices. [00:22:55] Speaker 00: And just taking a step back, the priority application describes two basic embodiments. [00:22:59] Speaker 00: You have a web browser embodiment where you call up on a phone and you say, what's the weather in Chicago? [00:23:05] Speaker 00: It goes out and finds a website that has that information and returns it back to you. [00:23:08] Speaker 00: It has a second embodiment, a device-focused embodiment, where you call up and say, hey, I'm in Chicago, turn off my lights in Boston, and it turns off your home lights on that network. [00:23:19] Speaker 00: The board looked and found that the only discussion of adding anything new was with the device embodiment. [00:23:25] Speaker 00: And in that embodiment, there's a functionality where the system will pull or ping devices in its network, and if it gets an unexpected response, it says, oh, there must be a new device here. [00:23:36] Speaker 00: So Paris pointed to that as demonstrating that there would be written description support for importing that functionality into the first embodiment so that the first embodiment could go out and search for websites. [00:23:49] Speaker 00: The board disagreed and it was reasonable in doing so and this court should affirm. [00:23:53] Speaker 00: The basic reason that they disagreed is that the first embodiment already has a polling and pinging functionality in that functionality [00:24:01] Speaker 00: it pulls and pings websites within its database already. [00:24:04] Speaker 00: Basically, if you want to know the weather in Chicago, it's ideal to have the best website. [00:24:09] Speaker 00: And so you need to constantly check the websites that you know about. [00:24:12] Speaker 01: It doesn't go looking for new ones. [00:24:14] Speaker 00: Exactly. [00:24:16] Speaker 00: And also just briefly, the other [00:24:19] Speaker 00: The other point that the board observed was that the claims actually distinguish between polling and searching. [00:24:23] Speaker 00: So these claims are about searching, and there are other claims and patents about polling. [00:24:26] Speaker 00: And it said that that underscores that there's a difference between polling and searching. [00:24:30] Speaker 00: So whatever the polling that occurs in the description is not the searching that's there. [00:24:37] Speaker 00: Unless there's any further questions, I'm happy to yield the remainder of my time to the court. [00:24:41] Speaker 02: Thank you, Mr. Speed. [00:24:49] Speaker 04: Thank you, Your Honor. [00:24:51] Speaker 04: We've dealt with some hypotheticals, but just to go back here, in this case, the Paris response brief argued [00:25:00] Speaker 04: The conception was established through Mr. Kurganov's testimony. [00:25:03] Speaker 04: Reduction to practice was established through Mr. Kurganov's testimony. [00:25:07] Speaker 04: Diligence was established through Mr. Kurganov's testimony. [00:25:10] Speaker 04: And the source code bogged. [00:25:11] Speaker 04: So there was argument that was in the briefing. [00:25:15] Speaker 04: And so we're dealing with what is the quantum of argument that is necessary? [00:25:18] Speaker 04: What is the quantum [00:25:20] Speaker 04: that is placed aboard the burden that is placed on Paris. [00:25:24] Speaker 04: And I think general access actually shows the problem here, because general access rested upon the proposition that the burden of establishing the earlier conception of reduction of practice [00:25:37] Speaker 04: was on the patentee, right? [00:25:41] Speaker 04: But what is a burden of establishing? [00:25:43] Speaker 04: Is a burden of establishing a burden of production or a burden of persuasion? [00:25:47] Speaker 04: Establishing, to me, it sounds like a burden of persuasion. [00:25:50] Speaker 04: You need to persuade. [00:25:51] Speaker 04: You need to establish. [00:25:52] Speaker 04: You need to prove this. [00:25:54] Speaker 04: And there is no doubt, of course, counsel says that the burdens have been treated separately. [00:26:00] Speaker 04: This court in TLC and dynamic talked about burdens plural explicitly said burdens plural of proof. [00:26:08] Speaker 04: The Supreme Court has said there's not burdens plural of proof. [00:26:11] Speaker 04: There's one burden of proof. [00:26:12] Speaker 04: That's the burden of persuasion. [00:26:14] Speaker 04: That's it. [00:26:14] Speaker 04: There's one burden of proof. [00:26:16] Speaker 04: Then there's a burden of production. [00:26:17] Speaker 04: It's wholly different. [00:26:19] Speaker 04: Here, by creating this burden of establishing that General Access does and rests on, they've allowed it to be that the patent owner has to prove conception reduction to practice rather than arguing this earlier conception reduction to practice and presenting the evidence, providing the evidence for that to meet the burden of production. [00:26:40] Speaker 02: Thank you, counsel. [00:26:42] Speaker 02: The case is submitted.