[00:00:00] Speaker 03:
Our next case for argument is 22-1495, Siswell International versus Sierra Wireless.

[00:00:07] Speaker 03:
Mr. DiMarco, please proceed.

[00:00:09] Speaker 01:
May it please the court, my name is Andrew DiMarco, an associate at Devlin Law Firm on behalf of Appellate Sisvel.

[00:00:14] Speaker 01:
There are three matters I would like to touch on today.

[00:00:17] Speaker 01:
First, the legal standard of public accessibility.

[00:00:21] Speaker 01:
Second, the board's reliance ultimately on a person of extraordinary skill in the art in violation of that standard, in fact, applying the incorrect standard in that regard.

[00:00:29] Speaker 01:
And then third, even if one were to apply that board's standard and reasoning, they still fell short.

[00:00:35] Speaker 01:
Under this court's precedent in Medtronic v. Barry, there are two main components to this public accessibility analysis.

[00:00:41] Speaker 01:
A person of ordinary skill in the art first, and then exercising reasonable diligence being able to access that reference.

[00:00:49] Speaker 01:
Now the board cites MNK holdings where that standard is also formulated, but they do not follow through with that analysis.

[00:01:01] Speaker 01:
The board defines a person of ordinary skill in the art as an individual.

[00:01:04] Speaker 03:
I understand the board opinion as sort of adopting what I'll call sort of two different views of what constitutes the public accessibility in this case.

[00:01:14] Speaker 03:
The first is the dissemination at the conferences themselves.

[00:01:19] Speaker 03:
Those conferences were attended by members, there was no confidentiality, and documents were described or disseminated without restriction at those conferences.

[00:01:28] Speaker 03:
Is that a fair assessment?

[00:01:30] Speaker 01:
They were disseminated to individuals within the 3GPP for the purposes of discussion during those working groups.

[00:01:39] Speaker 01:
So insofar as they were disseminated originally for the use in the working groups of the 3GPP, I would say that that is accurate.

[00:01:47] Speaker 01:
But I don't believe that there's any evidence that they were

[00:01:50] Speaker 01:
publicly accessible at the time when they were originally distributed.

[00:01:53] Speaker 01:
They were subsequently posted online.

[00:01:56] Speaker 01:
That's where we run into this reasonable accessibility argument.

[00:02:00] Speaker 03:
So the conferences at which they were actually distributed, those weren't conferences that all the different members could attend?

[00:02:09] Speaker 01:
Those were conferences where certain members of 3GPP that were involved in those working groups could attend, yes.

[00:02:17] Speaker 03:
OK, so at page appendix 1444, there's a list of over 100 attendees discussing the documents.

[00:02:26] Speaker 03:
Is that some sort of limited disclosure?

[00:02:28] Speaker 03:
Because that feels like a public disclosure.

[00:02:30] Speaker 03:
If I go to a conference and somebody hands me a document, that feels like a publicly accessible document to me at that point, if there's no restrictions on my use of that document.

[00:02:40] Speaker 01:
Yes, Your Honor.

[00:02:41] Speaker 01:
However, when we're looking at the public accessibility analysis of a person of ordinary skill in the ARC, these members of 3GPP are ultimately persons of extraordinary skill in the ARC.

[00:02:51] Speaker 01:
These are the individuals who are setting the cellular standards across the world.

[00:02:56] Speaker 01:
So these are not persons of ordinary skill.

[00:02:59] Speaker 01:
And the kind of knowledge about the working groups, the specific date of the meetings.

[00:03:04] Speaker 03:
There's over a hundred people who got these documents on 1444 and that's just one example.

[00:03:08] Speaker 03:
Those are all extraordinary people of skill in the art and not ordinarily skilled artisans.

[00:03:13] Speaker 03:
Every one of them.

[00:03:14] Speaker 03:
What is your basis for claiming that?

[00:03:16] Speaker 03:
Do you go through all their resumes?

[00:03:18] Speaker 03:
What did you do?

[00:03:18] Speaker 03:
How did you come to that conclusion?

[00:03:20] Speaker 01:
By virtue of the fact that these are the individuals who are setting the worldwide standard, Your Honor.

[00:03:25] Speaker 01:
So these are not, as defined by a person of ordinary skill in the art by the board, these are not simply individuals with three years' work experience who are familiar with the end product, the specifications themselves that are ultimately... I think people were under no restriction of confidentiality.

[00:03:41] Speaker 03:
Over 100 people got these documents.

[00:03:43] Speaker 03:
This is just one example.

[00:03:44] Speaker 03:
And they were under no restriction of confidentiality.

[00:03:47] Speaker 03:
They could freely share them from there.

[00:03:49] Speaker 03:
I don't know, that feels like public accessibility to me.

[00:03:51] Speaker 03:
I'm struggling.

[00:03:52] Speaker 03:
I don't even necessarily need to get to the website.

[00:03:55] Speaker 03:
That feels like it meets the standard, and I understood the board's opinion as including that within its fact finding.

[00:04:03] Speaker 01:
I could certainly understand that, Your Honor.

[00:04:04] Speaker 01:
However, I think when we also take a look at the testimony of Appellee's expert Mr. Bishop, we see that there is something that undermines that potential finding.

[00:04:14] Speaker 01:
We see that a substantial part of Mr. Bishop's job at Samsung was making sure that 3GPP documents, these working group specifications, these slide decks, were available to the procedures at Samsung, and he did so by creating an internal database.

[00:04:30] Speaker 01:
Sisto posits that, or puts forth the argument that because a significant part of his job was making sure that procedures had access to those documents, that undermines an analysis that these three DPP records were accessible with reasonable diligence.

[00:04:47] Speaker 01:
And so we think that that cuts away from the concept that Your Honor might be putting forward.

[00:04:53] Speaker 01:
There's at least evidence in the record that suggests that if a person of extraordinary skill in the art needs to compile an internal database for procedures to stay abreast of these changes, we think that cuts against reasonable accessibility.

[00:05:07] Speaker 01:
And it is Cispel's position that the board ultimately takes this person of ordinary skill in the art and imputes certain knowledge to them that goes beyond what they define as the definition of a person of ordinary skill in the art.

[00:05:23] Speaker 01:
Specifically, we can see that they rely on the testimony of Mr. Bishop who imputes no fewer than four pieces of information.

[00:05:31] Speaker 01:
that a procedure might need to know in order to access these documents.

[00:05:34] Speaker 01:
We see that apart from simply providing a URL and stating that an individual can simply plug in the URL, which presupposes knowledge of the exact location already, we see that he provides a process whereby the procedure is presumed to know the specific working group, the meeting number, the meeting date, and the CDOT number for the specific document.

[00:05:56] Speaker 01:
We discuss this on page five of our corrected response brief.

[00:05:59] Speaker 01:
An example of this kind of knowledge that's being presumed can be found on paragraphs 80 through 86 at appendix 1064 through 67.

[00:06:09] Speaker 01:
That's, I believe, for the T-Mobile reference specifically, but as you go through there are similar claims for the rest of the documents in question.

[00:06:21] Speaker 01:
This is akin to asking the creator of a crossword to fill in their own crossword.

[00:06:26] Speaker 01:
Of course, that individual would already know what the answers are and where to find them.

[00:06:31] Speaker 01:
He has that a priori knowledge he's bringing to the table.

[00:06:34] Speaker 01:
Meanwhile, Sisvel has provided testimony of its own expert, where assuming the persona of a person of ordinary skill in the art, without that imputed knowledge,

[00:06:45] Speaker 03:
I understand your arguments about indexing and all the different things that one, Mr. Bishop says, Bishop I think it is, right?

[00:06:53] Speaker 03:
It says one would have to know or a skilled artist would know to be able to locate the documents.

[00:06:57] Speaker 03:
I get that.

[00:06:58] Speaker 03:
But I'm still kind of back on my problem, which I started with.

[00:07:00] Speaker 03:
And I know you'd rather discuss what you want to discuss.

[00:07:05] Speaker 03:
I get that.

[00:07:05] Speaker 03:
But help me understand, is it your view that if 100 people attend a conference and they're given a document without restriction, and then they all throw it away afterwards?

[00:07:15] Speaker 03:
that document was not publicly accessible because a later artisan wouldn't be able to get it from them because they threw it away.

[00:07:22] Speaker 03:
I feel like that's what you're saying.

[00:07:25] Speaker 03:
I feel like what you're saying in terms of the distribution of the actual material is that a skilled artisan couldn't get it from them through reasonable diligence.

[00:07:35] Speaker 03:
But I think the act of the disclosure itself suffices for the public accessibility if it is without restriction.

[00:07:41] Speaker 03:
I don't think

[00:07:43] Speaker 03:
I think that if all 100 shredded it the next day, that doesn't make it any less publicly accessible when it was disseminated.

[00:07:51] Speaker 03:
That's where I'm stuck.

[00:07:52] Speaker 03:
Help me understand your response to that.

[00:07:55] Speaker 01:
I believe the response there, apart from the fact that I don't know how much evidence is in the record regarding that,

[00:08:08] Speaker 01:
The fact that this is brought into ultimately a closed group, these are invitees to the 3GPP.

[00:08:17] Speaker 00:
What difference does it make they're invitees?

[00:08:19] Speaker 00:
If it's a significantly large group of skilled artisans, putting aside your extraordinary skilled artisan argument, then isn't that public disclosure, particularly without any confidentiality requirements?

[00:08:33] Speaker 01:
I don't think there's been any evidence in the record that there was any distribution beyond that point.

[00:08:39] Speaker 00:
Again, why does there have to be distribution?

[00:08:44] Speaker 00:
If we were going to hand out a document to the people in the audience here and say, here's this document we're talking about, and we don't have any confidentiality documents, we've handed it out to the public, haven't we?

[00:09:01] Speaker 00:
The courtroom is limited, and not that many people are here.

[00:09:05] Speaker 00:
We've handed it out to the public.

[00:09:09] Speaker 00:
It seems like you're arguing for an extraordinary definition of what publicly accessible means.

[00:09:15] Speaker 00:
It has to be accessible throughout all this time.

[00:09:18] Speaker 00:
But if it's handed out publicly once, it's public, isn't it?

[00:09:23] Speaker 00:
Even if it somehow becomes inaccessible again.

[00:09:25] Speaker 01:
Well, I believe, Your Honor, that when

[00:09:31] Speaker 00:
Well, could you just respond to that?

[00:09:32] Speaker 00:
I mean, I think that's the same basic hypothetical the chief just asked you.

[00:09:36] Speaker 00:
If a document is handed out to a public group, but it's immediately destroyed by every single member, not through any confidentiality requirements or something.

[00:09:44] Speaker 00:
It's just everybody shorted it.

[00:09:46] Speaker 00:
But it's already been handed out to the public group.

[00:09:48] Speaker 00:
Isn't that a public disclosure?

[00:09:50] Speaker 00:
Do you get it to be not public again, because at some point, it becomes inaccessible?

[00:09:58] Speaker 01:
I think that under the relevant case law, the public disclosure will need to be made such that

[00:10:20] Speaker 01:
it could be understood what was invented by persons of skill in the field generally.

[00:10:27] Speaker 01:
I don't necessarily know if subsequent destruction would be relevant in that regard, but that might be something I might look into during my rebuttal time, Your Honor.

[00:10:38] Speaker 01:
I'm afraid that's the best answer I can provide on that subject.

[00:10:46] Speaker 01:
Although if there are any questions, any other questions on that matter from Your Honors, or sorry, I apologize.

[00:10:54] Speaker 01:
Barring any other questions, Your Honors, I would like to reserve the remainder of my time.

[00:10:58] Speaker 03:
Absolutely.

[00:10:59] Speaker 03:
Thank you, Mr. DeMarco.

[00:11:00] Speaker 03:
Thank you, Ms.

[00:11:02] Speaker 03:
Merrill.

[00:11:03] Speaker 02:
May it please the Court?

[00:11:05] Speaker 02:
Your Honors have already hit on the issue that we're here to discuss today, which is whether the broad dissemination of these three GDPP member submissions

[00:11:14] Speaker 02:
to the specific working group tasked with incorporating the particular voice indicators at issue in the 503 patent at their working group meeting.

[00:11:25] Speaker 02:
Now, for some additional context to the extent it's helpful, 503 patent claims a specific improvement to a 3GPP-defined protocol, and SISVEL has and is asserting this patent against 3GPP standard compliant devices.

[00:11:42] Speaker 02:
Now, SISVIL has never disputed that these 3GPP submissions were both provided to members of the 3GPP working groups, more than 140 members at one meeting and more than 180 members at a second meeting, and secondarily has never disputed that in addition to that dissemination, these references were also posted to 3GPP's online file repository

[00:12:08] Speaker 02:
at approximately the same time as the meeting.

[00:12:10] Speaker 02:
So to the hypothetical that Your Honors posed earlier, there was no shredding of this document.

[00:12:16] Speaker 02:
The 3GPP went to considerable lengths to ensure that these materials were preserved at that time, and they remain in that 3GPP online repository to this day.

[00:12:26] Speaker 03:
Yes, but I understand Mr. Tamarko's argument.

[00:12:30] Speaker 03:
He got a little sidetracked and didn't get to make it, but he made it well in the briefs.

[00:12:33] Speaker 03:
There's a lot of steps that Mr. Bishop claims a skilled artisan would know in order to be able to access these documents.

[00:12:41] Speaker 03:
And I'm quite frankly concerned.

[00:12:43] Speaker 03:
I mean, the internet is a morass of material, right?

[00:12:46] Speaker 03:
And in this case, you've got how are these documents indexed such that an ordinarily skilled artisan would reasonably be able to find them.

[00:12:56] Speaker 03:
I mean, Dr. Bishop really described a lot of steps that the artisan would have to have knowledge of to be able to find these documents.

[00:13:02] Speaker 02:
And that concerns me.

[00:13:04] Speaker 02:
I very much appreciate you raising that question, Your Honor.

[00:13:07] Speaker 02:
And so I'd start with the fact that the 3GPP is organized, and Mr. Bishop described this in detail in his declaration, according to technical specification groups.

[00:13:17] Speaker 02:
They love acronyms, so they refer to it as the TSG.

[00:13:19] Speaker 02:
But these TSGs align exactly with the very technical specifications

[00:13:24] Speaker 02:
that the 3GPP provides.

[00:13:26] Speaker 02:
And so a PASIDA, which the board defined in their definition of a PASIDA to which CISFEL has never disagreed, includes a familiarity with 3GPP technical specifications.

[00:13:39] Speaker 02:
So there is no doubt, and CISFEL has waived the opportunity to challenge, that this hypothetical PASIDA did know the technical specifications.

[00:13:47] Speaker 02:
And with that knowledge, that translated one for one with the technical specification groups by which the 3GPP is organized.

[00:13:55] Speaker 03:
I don't see that link.

[00:13:56] Speaker 03:
I'm sorry.

[00:13:57] Speaker 03:
I have knowledge of a lot of different things, right?

[00:14:01] Speaker 03:
But that doesn't mean that I necessarily know that when a document says TS2, that that corresponds to the architecture of whatever.

[00:14:12] Speaker 03:
Yes, I have knowledge.

[00:14:14] Speaker 03:
And the board found that a posita would have knowledge of the different groups.

[00:14:18] Speaker 03:
But that doesn't correspond to a mental index that that person would be required to have to be able to identify precisely what maps on to each one of these different things.

[00:14:28] Speaker 02:
Your Honor, I appreciate you raising that, and I would point to the reasonable diligence.

[00:14:32] Speaker 02:
The Pasita isn't assumed to already know exactly where every document is located, but rather, through reasonable diligence, perform the steps necessary to locate it.

[00:14:41] Speaker 02:
And Mr. Bishop did walk through and provided dozens and dozens of citations to the archived web pages from the 3GPP website.

[00:14:48] Speaker 02:
that would have explained to the PASIDA, here is the TSG that is covering these aspects of the 3GPP standard, and allow through the reasonable diligence, I'm not in any way claiming it was an instantaneous automatic indexing, but provide them with the tools to walk through that process.

[00:15:04] Speaker 02:
This person of ordinary skill in the art, as defined by the board, was a very intelligent and resourceful person, and the board did stop there, but also made a series of factual determinations that are relevant

[00:15:16] Speaker 02:
to that person of ordinary skill?

[00:15:18] Speaker 03:
I tried to look at this stuff myself and I even looked at all the screenshots and boy, it looks like somebody would have to know an awful, awful, awful lot.

[00:15:29] Speaker 03:
Like WG2, turns out that's working group two.

[00:15:34] Speaker 03:
How many working groups are there, by the way?

[00:15:35] Speaker 03:
Do you know?

[00:15:36] Speaker 02:
I know that the SA... A lot.

[00:15:38] Speaker 03:
A lot.

[00:15:39] Speaker 03:
So a posita would have to know that exactly what WG2 was working on

[00:15:44] Speaker 03:
in order to then access the documents related to that subject matter.

[00:15:50] Speaker 03:
So I mean, that's a lot.

[00:15:51] Speaker 03:
You're now imputing an awful lot of knowledge to a posita that they would have to have to be able to find these documents.

[00:15:59] Speaker 03:
In most of these cases, you get documents that are indexed by subject matter.

[00:16:03] Speaker 03:
And not four layers of steps of pre-existing knowledge you have to have about what WG2 is actually working on to be able to figure out the subject matter.

[00:16:12] Speaker 02:
It just seems really tough to me.

[00:16:15] Speaker 02:
If I could respond to your honor with two responses.

[00:16:18] Speaker 02:
The first is I think the court's decision in M&K Holdings is particularly relevant here because it was directed to, as we have here, standard setting activities in a particular organization that that standard setting organization which

[00:16:31] Speaker 02:
is similar in many ways to the 3GPP in terms of how their archives are organized relates in some of that analysis translate.

[00:16:40] Speaker 02:
But then I'd also point us to the 503 patent itself.

[00:16:43] Speaker 02:
So the patent is by its very title and description throughout related to specific 3GPP technical specifications and in particular the premise of using a brand new indicator that a 3GPP working group had just approved

[00:16:58] Speaker 02:
but had not yet even rolled up into the published specifications.

[00:17:02] Speaker 02:
So the premise of the very patent assumes that you must have knowledge of what's going on in specific 3GPP working groups in order to be able to propose the alleged improvement on those 3GPP protocols still being discussed in the working groups.

[00:17:20] Speaker 02:
Is that helpful, Your Honor?

[00:17:21] Speaker 02:
Not really, but keep going.

[00:17:24] Speaker 00:
That's why you should never ask.

[00:17:27] Speaker 00:
You should just answer it and move on.

[00:17:31] Speaker 02:
Lesson learned.

[00:17:32] Speaker 02:
But I do want to flag some of the factual determinations that the board made when it reached these conclusions regarding, and not just the dissemination.

[00:17:40] Speaker 03:
Let me ask you.

[00:17:41] Speaker 03:
Look, I saw Bishop walk through it all.

[00:17:43] Speaker 03:
And it's a substantial evidence standard.

[00:17:45] Speaker 03:
So honestly, I don't see how I reverse you.

[00:17:47] Speaker 03:
So you don't have to fight too hard.

[00:17:48] Speaker 03:
That being said, I'll tell you, it looks like a lot of an

[00:17:53] Speaker 03:
it looks really challenging to me that somebody would be able to find this.

[00:17:57] Speaker 03:
That's why I started this whole discussion with, I don't even necessarily, and I think it's like pages 36 through 40 of your brief that talk about the dissemination of the conferences themselves.

[00:18:07] Speaker 03:
Because what I don't want to do is write some decision that allows for something to count as publicly accessible when there's 14,000 steps and pre-existing pieces of knowledge someone would have to have to get to it.

[00:18:21] Speaker 03:
So I kind of like this other possible route, because that seems really straightforward to me.

[00:18:26] Speaker 03:
There are more than 100 attendees at the one I looked at.

[00:18:28] Speaker 03:
You said there's one with 144 attendees.

[00:18:30] Speaker 03:
This thing was distributed with no restriction.

[00:18:31] Speaker 03:
That feels like a done deal to me.

[00:18:34] Speaker 03:
Do I have to go to the website for you to win?

[00:18:37] Speaker 02:
Absolutely not, Your Honor.

[00:18:39] Speaker 02:
I can't help it.

[00:18:40] Speaker 02:
From our perspective, we believe there's layers upon layers of public accessibility, but I absolutely agree with you that that initial dissemination was more than enough.

[00:18:48] Speaker 03:
So unless the...

[00:18:50] Speaker 02:
I don't know that you have.

[00:18:52] Speaker 02:
I want to be respectful of the court's time.

[00:18:54] Speaker 02:
So unless there are additional questions, I'm not going to make you walk with me through the substantial evidence before the panel below.

[00:18:59] Speaker 02:
We have your briefs.

[00:19:00] Speaker 02:
Thank you.

[00:19:02] Speaker 01:
Your Honors, I do want to address the hypothetical proposed by Chief Judge Moore and Judge Hughes.

[00:19:09] Speaker 01:
Really quickly, though, I did want to touch on just the waiver argument that my firm brought up just to contest that issue, which Sisvel writes in its direct response brief on page 4 that appellant has been making this argument

[00:19:22] Speaker 01:
regarding the board's use of a person of extraordinary skill in the art or imputing knowledge to a procedure beyond their ken, at least since its patented response, and certainly through its blue brief here and its gray brief here.

[00:19:35] Speaker 01:
I just wanted to touch on that and bring Sisvel's response to that argument.

[00:19:44] Speaker 01:
to the hypothetical that Chief Judge Moore and Judge Hughes discussed about these particular documents being presented to potentially hundreds of individuals, we don't know in the record that these are persons of ordinary skill in the art.

[00:20:00] Speaker 01:
It's our understanding that the documents need to be distributed to proceders in order for it to be done publicly.

[00:20:07] Speaker 01:
And since we understand these people to be persons of extraordinary skill in the art, that's where we think that hypothetical may break down.

[00:20:13] Speaker 01:
So I wanted to have that moment to address that particular issue.

[00:20:19] Speaker 00:
Did the board make any fact findings on that point?

[00:20:22] Speaker 00:
Did the board make a factual finding that the audience was just skilled artisans, not, as you say, extraordinarily skilled artisans?

[00:20:30] Speaker 01:
I do not believe that the board made a factual finding regarding the attendees of the working groups of the 3GPP one way or the other.

[00:20:41] Speaker 01:
And that was actually a secondary issue around us, which is that these working groups are not the 3GPP.

[00:20:48] Speaker 01:
Generally, there are obviously significant numbers of individuals and organizations that are members of the 3GPP, but these working groups that are working on

[00:20:57] Speaker 01:
these particular standards where the contested documents were being reviewed were at least limited in scope to 3GPP more broadly, which is certainly a worldwide institution.

[00:21:14] Speaker 01:
technical specification, and this comes back ultimately to the board's own definition of what a person of ordinary skill in the art was, which is that it's an individual who's knowledgeable about the end results, the technical specifications.

[00:21:27] Speaker 01:
We note that Siswell is not appealing the finding of public availability of TS of the

[00:21:33] Speaker 01:
the technical specification document, because that document is something that by the board's definition a procedure would be aware of.

[00:21:40] Speaker 01:
But we're talking about documents here that are slide decks that were presented to a limited working group.

[00:21:45] Speaker 01:
Those are not something that by that definition the board provided a procedure would have been aware of.

[00:21:49] Speaker 01:
Unless your honors have any further questions, I'm certainly happy to cede my time.

[00:21:55] Speaker 03:
Okay.

[00:21:55] Speaker 03:
I thank both counsel.

[00:21:56] Speaker 03:
This case is taken under submission.