[00:00:00] Speaker 02:
The next case for argument is 22-1284, SRK Technology versus SNAP.

[00:00:07] Speaker 02:
Good morning, Your Honor.

[00:00:10] Speaker 01:
May it please the Court, Vincent Rabino on behalf of SRK Technologies.

[00:00:15] Speaker 01:
Your Honor, as we hear from a decision in the PTAB where several obviousness findings should be reviewed under the substantial evidence test and where there was no substantial evidence of the obviousness findings.

[00:00:28] Speaker 01:
There were three errors committed by the PTAB.

[00:00:32] Speaker 01:
One of them was a claim construction error regarding the definition or the application or definition of the term remote, sorry, record.

[00:00:44] Speaker 01:
The second is a waiver issue where the PTAB improperly found that certain arguments were waived even though they were in patent owner's response.

[00:00:54] Speaker 01:
And the third is related to the motivation to combine which was

[00:00:58] Speaker 03:
What is the claim construction dispute that you think is presented?

[00:01:01] Speaker 01:
The claim construction dispute that we believe is presented is with regard to the term communication mode.

[00:01:07] Speaker 01:
Okay, communication mode.

[00:01:09] Speaker 03:
Or is it communication message?

[00:01:11] Speaker 01:
Communication mode, Your Honor.

[00:01:14] Speaker 01:
Okay.

[00:01:15] Speaker 03:
Where did you dispute that at the board, what the proper construction of communication mode is?

[00:01:21] Speaker 01:
Your Honor, we didn't think that was a construction issue.

[00:01:23] Speaker 01:
It wasn't presented as a construction issue during the institution decision, in the institution decision.

[00:01:29] Speaker 01:
It was only really raised as a construction or appeared to be an improper construction, which this court must resolve under principles such as O2 micro in the board's final written decision where they held regarding claim scope that that term excludes photographs.

[00:01:44] Speaker 03:
There's a definition of communication mode right in the specification, is there not?

[00:01:48] Speaker 01:
Yes, your honor.

[00:01:49] Speaker 03:
And seemingly both parties agreed at the board that that definition was the correct construction of communication mode, correct?

[00:01:57] Speaker 01:
Your honor, that definition does not on its face

[00:02:03] Speaker 01:
exclude the term photograph.

[00:02:04] Speaker 03:
Okay, well we'll get to that, but am I right that as best as the record reveals, both parties seem to think that the definition and the specification of communication mode was the construction of communication mode?

[00:02:16] Speaker 01:
Your Honor, I believe that the positions we put forth were those that were advanced below in the district court from Petitioner, or sorry, from Patent Order, which was that it was plain and ordinary meaning.

[00:02:25] Speaker 01:
I'm sorry?

[00:02:26] Speaker 01:
Which was that it was plain and ordinary meaning, but that there was no

[00:02:28] Speaker 01:
actual dispute raised.

[00:02:31] Speaker 03:
So how can there now be a claim construction dispute that we would review de novo if that's how the case comes up?

[00:02:38] Speaker 01:
Your Honor, because the issue regarding claim scope came up during the final written decision where the PTAB held that the scope of the claim excluded photographs.

[00:02:51] Speaker 03:
Why is that not a factual finding and application of the construction to the evidentiary record before the board?

[00:02:58] Speaker 01:
your honor, because it's a question of claim scope.

[00:02:59] Speaker 01:
No one disputes what a photograph really is.

[00:03:02] Speaker 01:
It's a question as to whether or not the word recording can be a photograph.

[00:03:08] Speaker 01:
And because the board construed it as initiating or terminating a recording, essentially after saying there were no constructions necessary at the beginning of the final written decision, and then going on to

[00:03:19] Speaker 01:
say that initiating a terminating a recording can't be a photograph so there's a question like a factual finding i have a construction

[00:03:28] Speaker 03:
that requires to be a communication mode that you initiate and terminate a recording, I now look at what the record is as to what a photograph is.

[00:03:37] Speaker 03:
And I find, the board says, there is no initiation and termination of a recording.

[00:03:42] Speaker 03:
Therefore, as a factual finding, a photograph is not a communication mode.

[00:03:47] Speaker 03:
Isn't that what happened here?

[00:03:48] Speaker 03:
And we review that for substantial evidence.

[00:03:51] Speaker 01:
Your Honor, I believe that is a police argument.

[00:03:57] Speaker 01:
However, our argument is that the board improperly did make a claim construction or did perform claim construction.

[00:04:04] Speaker 01:
In other words, evaluating the scope of the term.

[00:04:07] Speaker 01:
It wasn't evaluating whether a photograph meets the claim.

[00:04:10] Speaker 01:
It evaluated the scope of the word recording and said recording can't be instantaneous.

[00:04:16] Speaker 01:
That was the board's reasoning.

[00:04:17] Speaker 01:
It wasn't about what a photograph is, what a prior art reference is.

[00:04:21] Speaker 01:
This is about the scope of the claim term.

[00:04:23] Speaker 01:
And that is something the court should review.

[00:04:25] Speaker 01:
This court should review.

[00:04:27] Speaker 01:
because of O2 micro and the necessity to do a claim construction on that term and should review de novo.

[00:04:34] Speaker 01:
Even if this court does not review de novo, there is no substantial evidence that a photograph can't be instantaneous.

[00:04:41] Speaker 01:
The evidence in the record is merely just appellees expert stating that, whereas everything in the record that's actual proof, the sources of proof go against that proposition that a photograph

[00:04:56] Speaker 01:
can't be instantaneous.

[00:04:57] Speaker 01:
In other words, the petitioner below put forth evidence about cameras showing a physical camera where you have an aperture.

[00:05:06] Speaker 01:
And the aperture has a timer on it.

[00:05:08] Speaker 01:
You hold it down longer, it could have an overexposed photograph.

[00:05:11] Speaker 01:
Photograph could be recorded.

[00:05:12] Speaker 01:
It doesn't need to be instantaneous.

[00:05:14] Speaker 01:
Additionally, and this is... Let me ask you, because time is limited.

[00:05:18] Speaker 02:
Let's assume, hypothetically, that we don't buy the argument you've been making for the first five

[00:05:24] Speaker 02:
I mean, this is all under the umbrella of Nexus.

[00:05:27] Speaker 02:
So that's what we're left with, right?

[00:05:28] Speaker 02:
Yes, Your Honor.

[00:05:31] Speaker 02:
So what are you left with if we reject either that this is a claim of construction issue or under whatever standard we apply, the board was correct?

[00:05:41] Speaker 01:
Your Honor, there are two other issues.

[00:05:43] Speaker 01:
One is still with regard to Nexus.

[00:05:45] Speaker 01:
And that is that the board improperly found waiver of an argument.

[00:05:50] Speaker 01:
And that argument was that there are two modes in SNAP's application, which

[00:05:54] Speaker 01:
for the record, I don't think anyone's really disputing how SNAP's application works, and that patent owner put forth evidence of commercial success of that application.

[00:06:06] Speaker 01:
However, and if the board failed to consider that evidence of commercial success in its nexus analysis, it merely didn't move forward with it because of a claim construction issue, as we put it, with regard to the definition of the word picture.

[00:06:18] Speaker 01:
And second, with regard to this waiver argument, the board never considered

[00:06:21] Speaker 01:
the commercial success of SNAP's application of the secondary consideration on the merits.

[00:06:26] Speaker 01:
And so the second argument for the improper waiver argument that the board made, the board said that

[00:06:33] Speaker 01:
Patent owner didn't raise the issue of the multi-snap as one of the possible communication modes.

[00:06:38] Speaker 01:
Now, we don't think that the appellee disputes that the multi-snap is a communication mode or that a video is a communication mode.

[00:06:44] Speaker 01:
In fact, I believe they admitted that video is one of the two possible communication modes.

[00:06:48] Speaker 01:
It was merely a question as to whether or not it was waived.

[00:06:50] Speaker 01:
And we propose and we put forth in our briefing that it was not waived because the expert in his analysis said that four possible communication modes were photo and in order with commas, photo, video,

[00:07:03] Speaker 01:
multi-snap, and then one other.

[00:07:04] Speaker 01:
And then the expert went on to explain two examples.

[00:07:08] Speaker 01:
And this court's case law under cases like that.

[00:07:11] Speaker 03:
But I think that's at A580.

[00:07:13] Speaker 03:
At best for you, it's an ambiguous contention by your expert, isn't it?

[00:07:19] Speaker 03:
And isn't it more naturally read what he said was that your expert was calling those four things media messages and not communication modes?

[00:07:29] Speaker 03:
I can read you the sentence.

[00:07:30] Speaker 03:
The Snapchat application is programmed to select a communication mode for recording the media message, e.g., video snap, photo snap, long snap, or multi-snap.

[00:07:42] Speaker 03:
Doesn't that suggest he's saying those four snaps are media messages?

[00:07:48] Speaker 01:
No, Your Honor, because as you go down further into the remaining analysis, he says, for example, and then talks about two such examples where he calls those two things communication modes.

[00:07:59] Speaker 01:
And so you take those two propositions together.

[00:08:02] Speaker 03:
What's our standard of review on the board's finding that this argument was waived or forfeited?

[00:08:07] Speaker 01:
I believe it's abuse of discretion.

[00:08:08] Speaker 03:
So how is it abuse of discretion to read the ambiguity on page 580 as a waiver?

[00:08:14] Speaker 01:
Same reason as it was in arguments like Chamberlain, where if it was reasonably raised in some form and it's in response to an argument raised for the first time in reply, which was that this photo can't be a communication mode, that the patent owner

[00:08:29] Speaker 01:
will be able to respond to that argument raised for the first time by petitioner on reply.

[00:08:33] Speaker 01:
It's not like these arguments were developed at the petition stage.

[00:08:36] Speaker 01:
This is about giving the patent owner the fair opportunity to respond to petitioner's arguments in its reply.

[00:08:42] Speaker 01:
There's one additional argument that we have, which is that the board failed to consider any of SNAP's own admissions in its SEC filings, in its own patents, sworn statements to the Patent Office with oaths filed about the state of the art

[00:08:59] Speaker 01:
and what was and wasn't known.

[00:09:01] Speaker 01:
And those issues are exactly on point with patent owner's contention that the claims are not obvious and there is no motivation to combine.

[00:09:10] Speaker 01:
And it is merely hindsight that the patent office used to find obviousness based on the two references, Araki and Newman.

[00:09:19] Speaker 01:
And with that, unless the panel has additional questions, I would reserve the rest of my time.

[00:09:26] Speaker 00:
Thank you.

[00:09:28] Speaker 00:
Good morning.

[00:09:28] Speaker 00:
I know it won't surprise you that I agree with Judge Stark's questions because those are exactly the right questions to be asking.

[00:09:36] Speaker 00:
The claimant issue here requires there to be a selection among a number of communication modes.

[00:09:43] Speaker 00:
Communication mode was properly defined by the specification itself and the specification defines the communication mode to be a mode for initiating and terminating.

[00:09:58] Speaker 00:
a recording of a media message.

[00:10:00] Speaker 00:
That wasn't disputed.

[00:10:02] Speaker 00:
There is no claim construction issue here.

[00:10:04] Speaker 00:
The only question was how to apply photo to that.

[00:10:10] Speaker 00:
We also need to take a step back and look at what is a photo, what is a video, what is a multi-snap.

[00:10:16] Speaker 00:
Those are media messages.

[00:10:18] Speaker 00:
You still would have to find a communication mode that can be selected

[00:10:23] Speaker 00:
for transmission of each of those messages.

[00:10:26] Speaker 00:
Nothing like that happens here.

[00:10:28] Speaker 00:
There is zero evidence in the record that there are multiple communication modes, in other words, multiple ways to start recording a message and then to stop recording that same message.

[00:10:43] Speaker 00:
Critically, with respect to photo, the board found and gave credit to Mr. Schmant, the expert

[00:10:51] Speaker 00:
who testified that, in fact, at paragraph 47, which is appendix 1331, unlike recording an audio or video message, taking a still image does not involve initiating and terminating a recording.

[00:11:08] Speaker 00:
That's the critical thing here.

[00:11:09] Speaker 00:
And that is the substantial evidence on which the board's decision was made, that as between photo and video, there is no selection of a communication mode.

[00:11:20] Speaker 00:
because for photo there was no initiating and terminating, therefore the claim didn't apply.

[00:11:26] Speaker 00:
Because that limitation was completely missing for photo versus video, there was no nexus because you couldn't say that there was a co-extension between the snap product and the claims.

[00:11:41] Speaker 03:
Clearly I can see how you could see it that way as an application of an agreed upon claim construction, but help me at least understand why is this not instead properly viewed as a question of claim scope?

[00:11:55] Speaker 03:
And the board at the last minute, despite the lack of a dispute, said, look, as a matter of claim construction, I'm going to just strike photographs from my construction of communication mode.

[00:12:09] Speaker 00:
Again, your honor, he did not strike photographs from the construction of communication mode.

[00:12:14] Speaker 00:
He found that a communication mode required initiating and terminating.

[00:12:20] Speaker 00:
He then said he adopted as persuasive the evidence and arguments made by petitioner.

[00:12:26] Speaker 00:
And we see that on appendix page 44, where he says specifically, we agree with petitioners persuasive argument that taking a photo is not a communication mode as defined

[00:12:37] Speaker 00:
as a mode for initiating and terminating.

[00:12:39] Speaker 03:
What principle could you give us to allow us to say why that is a question, a fact question, applying an agreed upon construction as opposed to saying that's a question of law about claim scope and just whether these claims are broad enough to capture photographs?

[00:12:56] Speaker 00:
Well, for one thing, Your Honor, I'm not sure what you mean by what principle can I give you other than you have a definition.

[00:13:02] Speaker 00:
The definition is that the communication mode must have initiating,

[00:13:06] Speaker 00:
and terminating the transfer of information.

[00:13:11] Speaker 00:
So a mode for initiating and terminating a recording.

[00:13:14] Speaker 00:
The only evidence of record is Mr. Schmand's declaration, which was credited in the argument by the board.

[00:13:24] Speaker 00:
And Mr. Schmand's declaration says, unlike recording an audio or video message, taking a still image does not involve initiating

[00:13:33] Speaker 00:
and terminating a recording.

[00:13:35] Speaker 00:
Now, I would say that perhaps, Your Honor, we might be living in a different world had their expert put in a declaration that said, no, doing a video does in fact have an initiation and a termination, but he did not.

[00:13:50] Speaker 00:
So it's unrebutted that the fact that a photo does not have an initiation and a termination, that it is instantaneous, that is a fact which supports the substantial evidence that was used to render that decision.

[00:14:03] Speaker 00:
In terms of the secondary argument about a video versus a multi-snap, there was no finding of waiver by the board.

[00:14:12] Speaker 00:
The board did say that this was a belated argument, but then it went on at length.

[00:14:18] Speaker 00:
from Appendix 44 all the way down to the bottom of Appendix 45 stating that the evidence of record refuted the new argument.

[00:14:28] Speaker 00:
Their argument seems to have been that because a video is different from a multi-snap because it's longer, therefore there's two communication modes.

[00:14:38] Speaker 00:
Not true.

[00:14:40] Speaker 00:
In fact, the evidence of record about how a video is taken versus how a multi-snap is taken is the exact same communication mode.

[00:14:50] Speaker 00:
The impetus, the beginning, the initiation required by a communication mode is to press the indicator button down.

[00:14:59] Speaker 00:
The termination happens when the button is released.

[00:15:03] Speaker 00:
That's only one mode.

[00:15:04] Speaker 00:
There are no other modes given.

[00:15:07] Speaker 00:
the only differentiator is in the media message itself.

[00:15:11] Speaker 00:
And as Your Honor pointed out, that's exactly what happened at Appendix 580 when quoting their own expert, they indicated that the recording of a media message, e.g.

[00:15:24] Speaker 00:
a video snap, a photo snap, long snap, which no one knows what that is, or multi-snap.

[00:15:31] Speaker 00:
So here, what they're doing is they're trying to conflate the media message

[00:15:36] Speaker 00:
with the mode for recording it.

[00:15:38] Speaker 00:
But the mode for recording it has to start with an initiation, which here is to press the button down, and end with a termination, which here is only ever seen as release the button.

[00:15:50] Speaker 00:
There's only one communication mode.

[00:15:52] Speaker 00:
Because there is no selection between communication modes, there can be no nexus, as the board found, because that's an element that is completely missing in the SNAP application from the claims.

[00:16:03] Speaker 03:
If we agree with the board, there's no presumption of nexus.

[00:16:06] Speaker 03:
Do we also have to determine whether they proved a nexus?

[00:16:11] Speaker 00:
Here, Your Honor, you do not, because here, Your Honor, the same element was found to be missing completely.

[00:16:17] Speaker 00:
And so there is no nexus if you find that the element was completely missing.

[00:16:22] Speaker 00:
And so here, they were trying to say that there is a selection, but there is zero evidence that there is a selection between modes, because there's not one shred of evidence

[00:16:33] Speaker 00:
that there are multiple communication modes.

[00:16:35] Speaker 00:
And one way you also understand that, and can easily see it, your honor, is the specification tells us how to recognize the different types of communication modes.

[00:16:45] Speaker 00:
One they view as push to start, which is basically when you hold the button down and you keep talking until your communication is over, much like a walkie talkie.

[00:16:55] Speaker 00:
You press, you speak, when you release, the communication ends.

[00:17:00] Speaker 00:
That's described as being particularly useful in column two of the patent for short messages, because you just press in, say hi, and release.

[00:17:09] Speaker 00:
The second mode, very different, is called tap to start, but it's not just one tap.

[00:17:15] Speaker 00:
It requires two taps.

[00:17:17] Speaker 00:
It requires the tap to start, then the recording is made, and then in order to end the recording, something else has to happen.

[00:17:24] Speaker 00:
You either have to tap it again,

[00:17:27] Speaker 00:
Or you have to have functionality that does voice recognition and realizes that your voice has stopped.

[00:17:32] Speaker 00:
There still has to be a secondary ending point.

[00:17:35] Speaker 00:
Nowhere in any of the evidence are there two ways to start and stop a communication mode, whether it be for photo, video, multi-snap, or anything else.

[00:17:46] Speaker 00:
And the board's decision was therefore supported by the substantial evidence that a photo was not a communication mode and that the record evidence cited by appellant itself

[00:17:57] Speaker 00:
for arguing that the video and the multi-snap would somehow qualify as two modes was refuted by the actual documentary evidence.

[00:18:06] Speaker 00:
The documentary evidence shows when you look at what a video versus a multi-snap is, it's the same mode for starting.

[00:18:16] Speaker 00:
And this is at appendix 2900, repeated again at 2901 and 2903 and 2904.

[00:18:23] Speaker 00:
You press the button down and you hold it for a video.

[00:18:27] Speaker 00:
You keep holding it to make a multi-snap, which is just a longer video.

[00:18:32] Speaker 00:
And the same mechanism for ending is when you release it, one communication mode only.

[00:18:37] Speaker 00:
And that's the record evidence that the board found was able to refute the arguments.

[00:18:44] Speaker 00:
And we see that, Your Honors, at Appendix 45, when the board goes through why the, quote, remaining evidence cited to support its belated argument does not support its contentions.

[00:18:55] Speaker 00:
It talks about the thinness of simply

[00:18:57] Speaker 00:
quoting the language, and when you look at the language itself, it demonstrates that there's only one mode recited.

[00:19:03] Speaker 02:
Can I just ask you a housekeeping question before you sit down, which is that you've offered a number of alternative theories in your brief that, as far as I can tell, were not ever cited or adopted by the board.

[00:19:19] Speaker 02:
So that's a problem, right?

[00:19:20] Speaker 02:
I mean, there's a chennery problem with us going off on our own with alternative theories, if they're not.

[00:19:28] Speaker 00:
To answer Your Honor's question very directly, yes, it is a problem if you go off on theories that the Board didn't cite, but here you don't have to.

[00:19:36] Speaker 00:
What those theories were, were alternative theories presented to the Board below.

[00:19:40] Speaker 00:
If Your Honors did not find that substantial evidence supported

[00:19:43] Speaker 00:
the conclusion, which we absolutely believe it does and did, as I've discussed, those additional theories would still have to be considered.

[00:19:52] Speaker 00:
And so instead of reversing, your honors would have to remand so that those other theories- Yeah, they would still have to be considered if they needed.

[00:19:58] Speaker 02:
And I take your point.

[00:19:59] Speaker 02:
If they needed to be considered, it would not be biased in the first instance.

[00:20:03] Speaker 02:
It would be in the context of a remand.

[00:20:05] Speaker 00:
That's correct, your honor.

[00:20:06] Speaker 00:
And I'll be brutally honest, one of the reasons that we continue to explain some of those in the briefing was to show your honors just how full the record is that even if it went back down, we'd be right back up in front of you.

[00:20:18] Speaker 00:
Without anything further, your honors, I cede my time.

[00:20:22] Speaker 00:
I appreciate your attention.

[00:20:23] Speaker 00:
Thank you.

[00:20:24] Speaker 01:
Good morning again.

[00:20:25] Speaker 01:
I have a few brief responses.

[00:20:29] Speaker 01:
First of all, with regard to photographs, I would like to point out

[00:20:35] Speaker 01:
that the record is not clear that a photograph can't just be the initiation or a photograph is not initiating and terminating of a recording or that is not a recording.

[00:20:45] Speaker 01:
Petitioners experts said it wasn't even a recording because it was instantaneous.

[00:20:50] Speaker 01:
Now, if we look at Appendix 1770, for example, which is SNAP's own patent, and we cited to these this type of disclosure, both in our brief we called out in the reasons for allowance for SNAP's patent

[00:21:03] Speaker 01:
comparing it to our own reasons for allowance.

[00:21:06] Speaker 01:
SNAP says, as an example, I'm giving Appendix 1770, but this is several places in the record with a citation to SNAP's patent.

[00:21:16] Speaker 01:
This version at 1770 is SNAP's application at the PTO.

[00:21:23] Speaker 01:
And it says,

[00:21:27] Speaker 01:
a user, and this is the quote, problematically a user must determine the optimal mode for recording a given moment before the moment has occurred.

[00:21:38] Speaker 01:
And then talks about swapping between photo and video.

[00:21:43] Speaker 01:
And throughout the specification, there's at least two other locations where it says record a photograph in SNAP's own patent application.

[00:21:51] Speaker 01:
And that's something that SNAP shouldn't be able to

[00:21:55] Speaker 01:
rebut as it was stated in its own patent application signed by its CEO with an oath.

[00:22:01] Speaker 03:
Do you have expert support for the idea that a photo could be a recording or could be a communication mode?

[00:22:09] Speaker 01:
Your honor, other than the fact that our expert cited to the photograph as one of the communication modes in paragraphs 80 through 94 of his declaration in comparing it to the product, as I mentioned in my opening time,

[00:22:22] Speaker 01:
This was not an issue that was a claim construction issue, an apparent claim construction issue at the time.

[00:22:27] Speaker 01:
Had it been the evidence he had where he says that a photo is one of the communication modes would have at least been sufficient to rebut, because there's simply nothing on the other side of it other than their expert's statement that a photograph has to be instantaneous to support that proposition.

[00:22:44] Speaker 01:
Either that the communication mode should exclude photograph or that

[00:22:51] Speaker 01:
a photograph can't meet that limitation with substantial evidence.

[00:22:55] Speaker 01:
There's just really no evidence other than their expert's base statement, which should not be allowed to stand, particularly in view of SNAP's own sworn statements.

[00:23:06] Speaker 01:
One last point for your honors is that the board never analyzed in the connection of Nexus, in the connection of Longfellow Need, in the connection of the obvious analysis for why to combine the Iraqi reference, which was a translation

[00:23:21] Speaker 01:
product with the Newman reference, which was a phone or media product that had hundreds of different modes it could be in, to get you to this idea that you'd have a single button interface where you could tap it to do one thing or hold it down to do another thing or push to talk to do one or tap to start to do another in the context of sending a media message.

[00:23:41] Speaker 01:
And Snap's own statements that

[00:23:44] Speaker 01:
This didn't exist in the art and it was something new or in its own patent on the same topic.

[00:23:49] Speaker 01:
It's in the reasons for allowance of SNAP's own patent.

[00:23:52] Speaker 01:
It's in SNAP's S1 filing with the SEC saying this was a problem it solved for its customers when they noticed the problem.

[00:24:01] Speaker 01:
And that problem is almost identical to the problem mentioned in the 059 and 159 patents.

[00:24:06] Speaker 01:
And the PTAB just didn't address that at all.

[00:24:09] Speaker 01:
These were statements made by SNAP that it should have to be accountable for

[00:24:12] Speaker 02:
Was this something you raised in blue in your blue brief?

[00:24:15] Speaker 02:
Because I'm not recalling.

[00:24:17] Speaker 02:
Was this an argument made in blue?

[00:24:19] Speaker 01:
I believe it was an argument we made around page, I think, 40 or 44 at the end of our section on Nexus, and then we raised it again in our reply brief.

[00:24:27] Speaker 01:
It was definitely below before the board.

[00:24:29] Speaker 01:
I remember saying these things, and I have a citation to it in the record from when I made these points to the PTAB, and it was just simply not addressed at all.

[00:24:38] Speaker 01:
This is essentially our last point in our brief that there is no substantial evidence for the motivation to combine.

[00:24:44] Speaker 01:
It was done with pure hindsight.

[00:24:46] Speaker 01:
And the hindsight was evidenced by the fact that there was nothing in the two references to combine them and that SNAP's own statements were just never addressed by the board.

[00:24:54] Speaker 01:
And if you were to take those statements by SNAP for what they're worth, they would actually refute obviousness on the merits and also demonstrate what SNAP alleges is a long-felt need which

[00:25:05] Speaker 01:
you know, shouldn't have turned around the definition of the term photograph.

[00:25:08] Speaker 01:
The statements itself, problematically a user must determine the optimal mode for recording a given moment before the moment has occurred at the same time as SR case patent should have been considered.

[00:25:20] Speaker 02:
Thank you.

[00:25:21] Speaker 02:
Thank you, Your Honor.