[00:00:00] Speaker 01: Our next case for argument is 23-1605, achieve 3,000 versus be able education. [00:00:07] Speaker 01: I should have said this at the outset, but while you guys are getting ready and taking a minute, we are very privileged to have Judge Mazant here sitting with us. [00:00:15] Speaker 01: I was supposed to say at the start, I just realized I forgot. [00:00:18] Speaker 01: He's a district court judge from the Eastern District of Texas, and he agreed to come sit with us today. [00:00:23] Speaker 01: So it's our great privilege to have him. [00:00:28] Speaker 01: Mr. Isaacson, please proceed. [00:00:31] Speaker 02: May it please the court, Robert Isaacson for Helen Pachee 3000 Inc., we refer to as A3K, also the patent owner. [00:00:40] Speaker 02: We ask the court to reverse the board's decision of obviousness because there are clear gaps between what the prior act discloses and what the claim limitations at issue require. [00:00:51] Speaker 00: Can I ask you one preliminary question before you get into more here? [00:00:54] Speaker 00: Do you agree that the board's finding these limitations at issue on claims one and eight rise and fall together? [00:01:02] Speaker 02: Yes. [00:01:03] Speaker 02: Go ahead, continue. [00:01:06] Speaker 02: The board made findings of what the prior art does not disclose, and it erred in relying on the appellee's Be Able Education, Inc.' [00:01:16] Speaker 02: 's expert, Christopher Vento, to fill those gaps. [00:01:21] Speaker 02: Mr. Vento's opinions are, in the end, conclusory, ipsy-dixit, inconsistent, and hindsight reconstructions of the art. [00:01:29] Speaker 02: And our view of TQ Delta and the Xerox cases cited in our brief establish that they're not substantial evidence. [00:01:37] Speaker 02: The claim limitations at issue are quite wordy. [00:01:42] Speaker 02: In essence, they provide differentiated content so that users, in this case students in the same class, can be taught the same lesson using a version of the content that's specifically aligned to their reading abilities, those different reading abilities. [00:01:58] Speaker 02: We refer to this as a plurality of aligned versions in the generic sense. [00:02:03] Speaker 00: Do you want to take one of the limitations at issue here and tell me [00:02:07] Speaker 00: why you believe there isn't substantial evidence for it. [00:02:11] Speaker 02: Sure. [00:02:11] Speaker 02: So, for example, in limitation 1.5, this notion of generating a plurality of aligned versions at different user reading difficulty levels in accordance with the unique standard code is a mouthful, but when we refer to that as a plurality of aligned versions, [00:02:30] Speaker 02: At trial, the board found, sorry, at trial, the able conceded that the two references they rely on, Cappellucci and Cupp, do not disclose this plurality of aligned versions. [00:02:42] Speaker 02: The board made that finding at Appendix 39. [00:02:46] Speaker 02: Under the Strathclyde case, that's enough to determine that the obviousness decision was not supported by the prior art, because the prior art doesn't disclose the inventive feature, which is a plurality of aligned versions. [00:02:58] Speaker 02: Going further, second reason, at trial, be able to admit it that obviousness was based on first, combining cappellucci and cup references, and then second, further modifying that combination. [00:03:11] Speaker 02: And the board erred in adopting Mr. Vento's testimony to bridge that gap between what Capillucci and Kupp was admitted not to disclose and what the claims require. [00:03:21] Speaker 02: Again, this plurality of aligned versions, the inventive feature. [00:03:26] Speaker 02: Mr. Vento's opinions on bridging the gap [00:03:29] Speaker 02: are Ipsy Dixit and taken out of context, Reconstruction of the Prior Art. [00:03:36] Speaker 02: He offered, well for example, in paragraph 176 at appendix 702, Mr. Vento gives an opinion that the CUP reference teaches to determine a reading level. [00:03:47] Speaker 02: We agree with that. [00:03:48] Speaker 02: But he went on with absolutely no basis to say that CUP also teaches to generate a news article [00:03:54] Speaker 02: that could be written in content appropriate for a second grader, fourth grader, and sixth grader reading level. [00:04:00] Speaker 02: We submit there's no basis for him to make that conclusion except hindsight. [00:04:05] Speaker 02: Because if you look at the challenge patent, the 993 patent, at column seven, lines 32 to 36, at appendix 115, it describes just that. [00:04:14] Speaker 02: Going to a news article, taking it and rewriting it to align it for different reading level abilities of the people who are going to get it. [00:04:23] Speaker 02: He then goes on to talk a reliance on the Cappellucci 934 patent, which is one of the two Cappellucci patents, paragraphs 90 and 93. [00:04:34] Speaker 02: He cites a number of paragraphs, which basically talk about customizing. [00:04:37] Speaker 02: And Mr. Vanto gives the opinion that customizing is giving information at different reading levels. [00:04:43] Speaker 02: But he's taken it out of context. [00:04:45] Speaker 02: When you read through the capillucci paragraphs he cites, what it's talking about is customizing in the context of the capillucci system, which gets the user profile, which has the reading ability in it. [00:04:59] Speaker 00: Can you come into a specific appendix page? [00:05:02] Speaker 02: It's paragraph 176, 182, 245, and 246. [00:05:08] Speaker 02: I can do paragraphs. [00:05:10] Speaker 02: Can you give me the appendix page? [00:05:14] Speaker 02: Appendix 702, 705, 738, and 739. [00:05:20] Speaker 02: And that's Mr. Vento's testimony. [00:05:23] Speaker 02: And in each of those different paragraphs, he cites to paragraph 90 and talks about customizing. [00:05:31] Speaker 02: I believe, at least customizing. [00:05:35] Speaker 01: Why don't you just go to page 830 of the reference, which is where paragraph 90 is, and tell us why that paragraph is substantial evidence for the board's finding about this customizing concept. [00:05:53] Speaker 01: Because I'm looking at it, and it talks about personalizing it. [00:05:58] Speaker 01: This is paragraph 90 of the reference. [00:05:59] Speaker 02: Oh, sorry. [00:06:00] Speaker 02: Thank you, Your Honor. [00:06:01] Speaker 01: is page 830 of the appendix. [00:06:05] Speaker 01: This is what the board cites. [00:06:06] Speaker 01: This is what Mr. Vento, I think, cited as well. [00:06:10] Speaker 01: It's the actual reference. [00:06:11] Speaker 02: Yes. [00:06:12] Speaker 02: So paragraph 90 talks in the second line, customize, localize, and personalize the information provided to the user. [00:06:20] Speaker 02: When you read the context of, when you read the reference as a whole, in context, customizing there is talking about taking the user's profile, going to the database, identifying content that's appropriate for that user, selecting that content, and then delivering it to the user. [00:06:37] Speaker 02: It makes no reference in the use of customizing to modifying the text to create a plurality of aligned versions. [00:06:44] Speaker 02: I'm sorry? [00:06:45] Speaker 00: So I don't know if I'm looking at the correct portion, but I believe if you look at the end on 830, the last, I want to say last two sentences or so, wouldn't that actually disclose what's set forth in claim limitation 1.5? [00:07:00] Speaker 02: No, that's actually the reverse, Your Honor, because what that says is if you have content and you deliver it to a second and third grader, [00:07:06] Speaker 02: you give them the same informational content. [00:07:09] Speaker 02: That's the second to last line of that paragraph. [00:07:11] Speaker 02: That means you do not change the text. [00:07:14] Speaker 02: What that paragraph talks about changing is the presentation, the format, the color, the font. [00:07:19] Speaker 02: That's not what we're talking about in Claim 1.5 with respect to modifying the text, the informational content. [00:07:26] Speaker 02: As Claim 1.5 provides, you have to modify vocabulary and sentence length. [00:07:33] Speaker 02: This is nothing about that. [00:07:35] Speaker 01: I'm not sure that that's the correct reading because earlier in the paragraph, right, in about the middle of that paragraph, it says, this information can be used to select information that is presented to a user and how that information is presented to a user. [00:07:53] Speaker 01: For example, so I think that what they're saying here is that there's two different ways that the content can be varied. [00:07:59] Speaker 01: One is [00:08:00] Speaker 01: its format, like you're suggesting, and the other is its substance. [00:08:05] Speaker 02: Your Honor, I respectfully submit there's nothing in [00:08:08] Speaker 02: the capillucci references that talks about changing the substance by modifying the sentence length or vocabulary. [00:08:15] Speaker 02: It talks about presentation, which is the format, the way it looks, the way it appears, so that certain text might be highlighted, other text won't be. [00:08:23] Speaker 01: Okay, so that sentence says, this information can be used to select information that is presented and how that information is presented. [00:08:33] Speaker 02: That's right. [00:08:33] Speaker 01: So the formatting that you're talking about is how that information is presented. [00:08:37] Speaker 01: But selecting which information is presented seems to be a statement that they're looking at choosing which pieces of information you're going to present. [00:08:47] Speaker 02: That's exactly right, Your Honor. [00:08:48] Speaker 02: But that's the customizing aspect I just mentioned. [00:08:51] Speaker 02: And what Cappellucci teaches about customizing, that's taking the user profile, then going to the database, see what's in there, what content is available, and deliver it. [00:09:01] Speaker 02: It's not talking about changing the content to create a plurality of aligned versions so that the students in different grades have different content, whether or not the appearance is different is not the issue. [00:09:13] Speaker 02: They have different content that's appropriate for their specific reading abilities. [00:09:17] Speaker 02: So the second, third graders, and fourth graders would have different reading levels. [00:09:22] Speaker 00: But if you go on and just follow up on Chief Judge Moore's question, isn't there statements about, for example, the achievement levels in a student profile can be used to filter questions in a practice assessment test delivered to a student, and then read on how you can filter out easier questions from a test, from a test presented to a student having a higher level of reading. [00:09:40] Speaker 00: I don't want to do a reading exercise with you, [00:09:42] Speaker 00: It seems like there's something here in paragraph 90. [00:09:44] Speaker 02: What they're talking about is going to the database and finding what's already there. [00:09:49] Speaker 02: Kapiluchi correlates information into a database and uses the user profile so that you can select. [00:09:56] Speaker 02: The context is that if you have information [00:10:00] Speaker 02: that's appropriate and not appropriate, it customizes it by finding what the user wants and then going and getting what the user wants. [00:10:07] Speaker 02: It doesn't say, get me an article and change it so that I can read it in my appropriate reading level ability. [00:10:14] Speaker 02: That's what the invention was. [00:10:16] Speaker 02: That's what our clients came up with. [00:10:21] Speaker 02: And that's what enabled them to form a company and sell it and then jump ship, form another company and challenge the patent. [00:10:27] Speaker 00: So here we're really looking, though, at the combination of cup and capalucci, right? [00:10:31] Speaker 02: Yes. [00:10:32] Speaker 00: So do you have something you want to address with respect to cup? [00:10:36] Speaker 01: Cup? [00:10:40] Speaker 01: Well, because cup seems to supply [00:10:44] Speaker 01: the element that you think is missing from kappa lucia could be wrong but i think on page eight forty one which is where the cuff reference has paragraph thirty seven that seems to be the one everybody's focused on it doesn't just talk about a sentence being deleted and you're telling me you want me to read kappa leti or whatever it is to only be about deletions this doesn't even just say if a sentence is deleted it also says you can add a replacement sentence [00:11:09] Speaker 01: in an attempt to maintain the flow of the story. [00:11:12] Speaker 01: So to the extent that you thought that maybe Cappellucci didn't disclose modification or customization, the combination of Cappellucci and Cupp seems to, I don't know, I mean, substantial evidence is kind of a tough burden. [00:11:26] Speaker 01: How do I not read that as substantial evidence? [00:11:30] Speaker 02: So that's a different aspect of the claim. [00:11:33] Speaker 02: To go back to just the plurality of aligned versions, CUP does not teach to make a plurality of aligned versions. [00:11:40] Speaker 02: What you're talking about, Your Honor, is the maintaining step. [00:11:44] Speaker 02: And that's a separate part of the claim, which involves transforming content. [00:11:48] Speaker 01: This is all 1.5, right? [00:11:49] Speaker 02: It's all 1.5, Your Honor, but there are different aspects of 1.5. [00:11:54] Speaker 02: And our first position is that they don't even teach the plurality of aligned versions. [00:11:58] Speaker 02: so you don't even get to the maintaining step. [00:12:01] Speaker 02: If you believe they got the plurality of versions, which is not shown because CUP only writes one. [00:12:06] Speaker 02: It says, give me a draft. [00:12:08] Speaker 02: I can modify it to whatever targeted reading level you want. [00:12:11] Speaker 02: That's all it does. [00:12:13] Speaker 02: It doesn't say, give me a draft. [00:12:15] Speaker 02: I can make multiple copies of the same thing. [00:12:17] Speaker 02: In fact, if you read through CUP, it doesn't even say anything about what you do with the original content. [00:12:22] Speaker 02: It's put in a processor and the user can edit it. [00:12:25] Speaker 02: You can add words. [00:12:26] Speaker 02: You can subtract words. [00:12:27] Speaker 02: You can make things larger. [00:12:29] Speaker 01: Why don't you get to that second argument? [00:12:31] Speaker 01: Because the board found that capillucci could be read to provide these aligned plurality of formats. [00:12:40] Speaker 01: I see your point. [00:12:42] Speaker 01: Had the board ruled in favor of you and made a fact-finding contrary to what they made, I probably would have for sure affirmed it. [00:12:49] Speaker 01: But the one they made, I think, can also be affirmed based on Cappellucci. [00:12:52] Speaker 01: So why don't you move on to that modified one? [00:12:56] Speaker 02: On to the maintaining. [00:12:58] Speaker 02: So what the board found was that Cappellucci didn't transform content. [00:13:03] Speaker 02: So it couldn't maintain the content. [00:13:05] Speaker 02: Well, but Cupp. [00:13:06] Speaker 02: Cupp. [00:13:06] Speaker 02: Cupp, it was silent. [00:13:08] Speaker 02: The board found that Cupp was silent on whether or not to maintain it. [00:13:11] Speaker 01: What? [00:13:12] Speaker 01: But what about Chapter 37? [00:13:13] Speaker 02: Appendix 38. [00:13:25] Speaker 01: I'm sorry, your appendix 38? [00:13:28] Speaker 02: Yes. [00:13:29] Speaker 01: You're saying what? [00:13:34] Speaker 02: It said, we do not find cup silence on the issue to support our assertion. [00:13:47] Speaker 02: So they found the cup was silent on the issue. [00:13:51] Speaker 02: They disagreed with our argument, but they found it was silent. [00:13:54] Speaker 02: That's my basis. [00:13:56] Speaker 02: It's about the fourth, fifth line down. [00:14:04] Speaker 01: On change subject matter? [00:14:07] Speaker 01: Yes. [00:14:07] Speaker 01: Is that what you're saying? [00:14:08] Speaker 02: Yes, Your Honor. [00:14:19] Speaker 02: So cup is not tethered. [00:14:21] Speaker 02: Cups make changes, but it's not tethered to the original content. [00:14:25] Speaker 00: But going on to appendix page 39, it says here, although we agree with Pat, in order that neither Cupp nor Cappellucci alone teaches the entirety of the limitation issue, in element 1.5, we disagree that the petitioner's discussion of the proposed combination fails to address this reputation. [00:14:42] Speaker 02: And our position is that they relied on Mr. Vento's testimony. [00:14:46] Speaker 02: which doesn't have supported by, it's not supported by substantial evidence. [00:14:49] Speaker 02: It's Ipsy Dixon, it's conclusory, it mimics the petition. [00:14:53] Speaker 02: It doesn't really provide any evidence where he shows that CUP actually does not or naturally will modify, not modify the content. [00:15:03] Speaker 02: Let me give you an example. [00:15:04] Speaker 03: But we disagree with that. [00:15:05] Speaker 03: I'm sorry? [00:15:06] Speaker 03: If we disagree with your reading of Bento, then [00:15:11] Speaker 03: were left with, they made this credibility finding and we're stuck with it, aren't we? [00:15:14] Speaker 02: Well, I think there's a question of whether there's, well, in that respect, yes, Your Honor. [00:15:19] Speaker 02: But I think there's a real question of whether Mr. Ganto has any evidence to support his conclusions. [00:15:24] Speaker 02: If you consider the example they talk about, he talks about a terrorist, an article about terrorism. [00:15:30] Speaker 02: And if you delete a sentence, it won't change it about terrorism. [00:15:33] Speaker 02: Well, what CUP teaches is that if you want to increase the reading level, you change the syllables of a key word. [00:15:39] Speaker 02: So you take the word terrorist and change it to revolutionary. [00:15:43] Speaker 02: And all of a sudden, you've changed the context, meaning, and subject matter of an article about a terrorist to a revolutionary. [00:15:50] Speaker 02: And it's consistent with CUP's teaching, which is that you use more syllables, three syllables on terrorist, five on revolutionary, a higher reading level. [00:15:57] Speaker 02: So to say that it doesn't change content is just not supportable. [00:16:03] Speaker 01: Okay, well, you've used all your time and your rebuttal time. [00:16:05] Speaker 01: I'll restore some rebuttal time. [00:16:07] Speaker 01: Thank you, Your Honor. [00:16:09] Speaker 01: Let's hear from Mr. Benvin. [00:16:18] Speaker 02: Thank you, Your Honor, and may it please the court. [00:16:21] Speaker 02: My name is Richard Benben, and I'm here on behalf of the ABLE. [00:16:26] Speaker 02: The court should, from the board's decision, the board's decision is, especially with respect to the issues on appeal, it's well-reasoned and it's thorough. [00:16:35] Speaker 02: All of the issues that are raised are based on factual findings, and those findings are supported. [00:16:40] Speaker 01: What is the board's factual finding on the maintaining the flow of the story, maintaining the, whatever that language is, in 1.5 at the end of that? [00:16:48] Speaker 02: So I disagree with the way A3K is characterizing the court's decision. [00:16:53] Speaker 01: It was a maintaining subject matter of the first unmodified content. [00:16:57] Speaker 01: So the court doesn't need to... Honestly, I thought it was in paragraph 37 where they say, in an attempt to maintain the flow of the story, but opposing counsel just showed me that the board did not make that fact-finding. [00:17:11] Speaker 01: In fact, the board talked about Cupp's silence, and I can only affirm on [00:17:18] Speaker 01: things that the board did, right? [00:17:19] Speaker 01: So even if I think it's right there in paragraph 37, clear as day, I don't know what to do, because I don't get to do that. [00:17:26] Speaker 02: So I think it is clear as day in Appendix 37, Your Honor. [00:17:29] Speaker 01: It doesn't help me if the board didn't say anything about it. [00:17:31] Speaker 02: So the board did, and let me just explain a little bit about this limitation. [00:17:34] Speaker 02: So what the board found is that CUP has two different editing routines. [00:17:38] Speaker 01: One for increasing... Tell me in the board opinion exactly where [00:17:42] Speaker 01: The board found paragraph 37 of CUP discloses that last part of element 1.5, which is maintaining subject matter of a first unmodified content. [00:17:54] Speaker 02: So what the board said in its decision. [00:17:56] Speaker 02: Where? [00:17:57] Speaker 02: On page 36 of its decision. [00:18:01] Speaker 02: It starts by, so as I was mentioning, CUP has two editing routines. [00:18:05] Speaker 02: There's an editing routine for increasing the reading difficulty level of content. [00:18:09] Speaker 01: On page 36, where in the board's opinion does it say that paragraph 37 satisfies that limitation? [00:18:18] Speaker 02: It doesn't say that paragraph 37, as far as I recall, doesn't say that deleting, the delete sentence in paragraph 37 satisfies that limitation. [00:18:26] Speaker 02: What it says, what the board says in the board's finding, or the board's statement with respect to silence as being as characterized, I believe, the board was addressing a very specific argument. [00:18:35] Speaker 02: It wasn't addressing limitation 1.5 as a whole. [00:18:39] Speaker 02: Below what A3K had argued was that the editing routine for- Tell me whether or not this helps you. [00:18:45] Speaker 00: On appendix page 36, I see this portion where it says, cup discloses the leading entire sentences to reduce the reading level. [00:18:53] Speaker 00: And then there's a least in parentheses of paragraph 37. [00:18:56] Speaker 00: misunderstanding what is being referred to here. [00:18:59] Speaker 02: What the board is saying it's saying that in support Patent Owner highlights that they're describing the Patent Owner's statement and the statement in cup about deleting a sentence is found in paragraph 37 and so [00:19:13] Speaker 02: This first large paragraph in page 36 of the board's decision, I believe, is describing the patent owner's argument below. [00:19:20] Speaker 02: And then they go on to say that this argument does not identify a deficiency in petitioner's position. [00:19:26] Speaker 02: And the reason is, one of the primary reasons is that there are two editing routines. [00:19:31] Speaker 02: And there's an editing routine for increasing and decreasing. [00:19:34] Speaker 02: The decreasing editing routine is the one that they focused on below, and that has to leave the sentence. [00:19:39] Speaker 02: What the board found is that the scope of limitation 1.5 is broad enough to encompass increasing reading difficulty level or decreasing. [00:19:48] Speaker 02: Below, the only thing that A3K argued was the decreasing. [00:19:51] Speaker 02: But the board went on to find in page 36 of the decision that the increasing editing routine satisfies limitation 1.5. [00:20:01] Speaker 01: It went out to independent reading. [00:20:04] Speaker 01: What I'm asking about, and this is where I'm trying to drill down, is this maintaining subject matter part. [00:20:09] Speaker 01: because that is one of their arguments on appeal. [00:20:13] Speaker 01: Where did the board find that these references disclose maintaining subject matter of the first unmodified content? [00:20:22] Speaker 01: My question isn't about raising or lowering the level. [00:20:24] Speaker 01: That's not relevant to me. [00:20:27] Speaker 02: So in the report, so page 37 of the decision, the appendix 37, [00:20:33] Speaker 02: The board says, relied upon figure 3 of CUP as a flowchart illustrating an exemplary method for editing and written work to decrease readability level. [00:20:41] Speaker 02: Whereas figure 2, also relied on by petitioner as to element 1.5, is a flowchart illustrating an exemplary method for editing a written work to increase its reading difficulty level. [00:20:51] Speaker 02: The board went on to find that the method shown in figure 2 maintains the subject matter. [00:20:56] Speaker 02: The method that increases- Where? [00:20:58] Speaker 01: Where did they find that? [00:20:59] Speaker 02: They say, even assuming that deleting a sentence would fail to maintain the subject matter and deploy out of line versions, that step did not be included in all possible instances of the proposed combination. [00:21:10] Speaker 02: They're agreeing with us that the method for increasing the reading difficulty level would maintain subject matter. [00:21:18] Speaker 02: Why? [00:21:19] Speaker 01: Why would increasing the reading level maintain the subject matter? [00:21:23] Speaker 02: I don't understand. [00:21:24] Speaker 02: So the CUP, they looked at CUP Figure 2, which is Appendix 835, and the types of... Wait, wait. [00:21:30] Speaker 01: Go slower, please. [00:21:30] Speaker 02: Sorry. [00:21:31] Speaker 02: My apologies. [00:21:32] Speaker 01: Where? [00:21:33] Speaker 02: Figure 2, Appendix 835. [00:21:35] Speaker 02: And what CUP demonstrates or what CUP teaches is an editing routine that will join sentences. [00:21:44] Speaker 02: in order to create larger sentences or will replace certain words with synonyms in order to make the reading difficulty level more challenging. [00:21:53] Speaker 02: But those types of edits are not the type that would change the subject matter of that article. [00:22:01] Speaker 01: How do you know? [00:22:02] Speaker 01: Who says? [00:22:02] Speaker 02: So Mr. Vento said in paragraph 255 of his declaration, which is on appendix. [00:22:07] Speaker 01: OK, but respectfully, this is not rocket science. [00:22:09] Speaker 01: I mean, deleting sentences or adding sentences could absolutely change content, right? [00:22:14] Speaker 01: I mean, it could not. [00:22:16] Speaker 02: It could change content, but that's not the issue here, Your Honor. [00:22:20] Speaker 00: The issue here is so- What about footnote 10? [00:22:21] Speaker 00: Like, I'm trying to maybe- [00:22:24] Speaker 00: make this a little bit of hook-down phonics here or something, but could you look at footnote 10? [00:22:29] Speaker 02: Sure. [00:22:30] Speaker 02: So the maintaining subject matter, what the board was saying, was that the patent describes maintaining subject matter as maintaining same content topics, main ideas, and core elements. [00:22:41] Speaker 02: That's the example that they give. [00:22:43] Speaker 02: But even beyond that, if we look at the way, so the 993 patent describes subject matter in a very broad sense in the terms of [00:22:52] Speaker 02: just essentially a topic. [00:22:54] Speaker 02: And I can point you to Appendix 116, this is the 993 patent itself, in which explains that subject matter, an example of subject matter is terrorism. [00:23:06] Speaker 02: It actually describes in column 10, line 50, it says, thus, each student receives an article covering the same terrorism subject matter. [00:23:17] Speaker 02: It describes subject matter very broadly. [00:23:19] Speaker 02: And so even if CUPS deleting, if you have to reach the issue of whether CUPS editing routine for deleting one sentence, deleting a sentence in an article about terrorism doesn't change the subject matter. [00:23:34] Speaker 02: It's still about terrorism. [00:23:36] Speaker 02: And as I was saying, Mr. Vento's testimony in paragraph 255 supports the board's decision, where he explains, and this is at appendix 744, he says, a person of ordinary skill in the art would have understood or have been obvious that CUP's methods maintaining the subject matter of the first unmodified content, CUP's methods replace words with synonyms and combine or separate sentences. [00:24:01] Speaker 02: A person of ordinary skill in the art would have understood that such edits modify [00:24:05] Speaker 02: the content of a written text without changing the subject matter. [00:24:09] Speaker 00: Okay, so the replacing words with synonyms is your main argument for how it addressed on the maintaining the subject matter? [00:24:16] Speaker 02: The entire method in the increasing and decreasing is that the types of edits that they're making, breaking up sentences or joining sentences, [00:24:25] Speaker 02: or replacing words with synonyms, it doesn't change the subject matter. [00:24:28] Speaker 01: And just kind of taking a step back to... Did you not argue to the board that the maintaining of the flow of the story thing [00:24:37] Speaker 01: carried water. [00:24:38] Speaker 01: I mean, did you not make that argument? [00:24:39] Speaker 02: That it didn't carry water, I'm not sure you understand. [00:24:42] Speaker 01: That it would satisfy the limitation. [00:24:45] Speaker 01: I mean, to me, when I read paragraph 37 of CUP, I'm like, oh, there's the limitation. [00:24:52] Speaker 01: Maintain the flow of the story, that is the same thing as maintaining the subject matter. [00:24:55] Speaker 02: My apologies, Your Honor, yes. [00:24:56] Speaker 01: But, you know, unfortunately, the board didn't make that finding. [00:24:59] Speaker 01: It never cited to paragraph 37 for that. [00:25:01] Speaker 01: fact-finding and that's driving me crazy because it's right there. [00:25:05] Speaker 01: And paragraph 37 was cited otherwise, but not to this limitation. [00:25:10] Speaker 01: It's very strange. [00:25:11] Speaker 01: Did you not make that argument? [00:25:13] Speaker 01: I'm wondering if that argument was at least made in your petition somewhere. [00:25:16] Speaker 02: I don't recall if it was made in the petition, Your Honor. [00:25:22] Speaker 02: But I think even beyond that paragraph, which supports what the board's fact finding, the board was on solid ground when it found that the types of edits that are in the editing routines of merely combining or breaking up sentences and replacing words and synonyms would maintain the subject matter, especially when the subject matter is defined very broadly in the context of the 993 patent. [00:25:45] Speaker 02: And I don't, again, I don't agree with the way that my friend is characterizing the board's discussion with silence. [00:25:53] Speaker 02: The board was addressing a very specific issue, whether deleting a sentence would change the subject matter. [00:25:58] Speaker 02: And what they said was that CUP doesn't say one way or the other. [00:26:01] Speaker 02: And that was it. [00:26:01] Speaker 02: But then they went on to find that the types of edits and the things that CUP is doing would maintain the subject matter, that that would have been obvious to First and Board members, still they are. [00:26:14] Speaker 02: Unless there are any questions on that, I'll turn to paragraph 90 of Kapiluchi, which got some discussion. [00:26:20] Speaker 02: And this is with respect to limitation 1.5 again, generating a plurality of aligned versions. [00:26:26] Speaker 02: Now, I agree wholeheartedly with your honors that paragraph 90 is not just about a modifying format. [00:26:37] Speaker 02: What this is teaching is that this system can deliver customized content to students based on information that's in student profiles, which includes information about- It doesn't matter whether it's teaching it. [00:26:50] Speaker 01: It could teach that, and the board found it didn't. [00:26:51] Speaker 01: This is substantial evidence. [00:26:52] Speaker 02: So, and- Well, the board found that it supports the combination. [00:26:59] Speaker 01: That was being helpful. [00:27:01] Speaker 01: Yes. [00:27:02] Speaker 01: Okay. [00:27:02] Speaker 01: I didn't say I got that. [00:27:04] Speaker 01: All right. [00:27:05] Speaker 02: And I agree with you, but I'm just saying that the board relied on this paragraph as well as many paragraphs from Mr. Vento's declaration that explained that there was a well-known problem in academia, that there was a mixability of classrooms, particularly with respect to- And all of that is you should wrap yourself in the substantial evidence flag now and then. [00:27:23] Speaker 02: Yes. [00:27:24] Speaker 02: Substantial evidence. [00:27:25] Speaker 02: There's many paragraphs, including the paragraph in Cappellucci that talks about delivering customized news content. [00:27:31] Speaker 02: My friend said that there was no support for that. [00:27:33] Speaker 02: Customized new content is in paragraph 93 of Cappellucci 934. [00:27:42] Speaker 02: Unless there are any questions on that point. [00:27:45] Speaker 00: I assume that you also agree with the statement that claims, the claim limitations are issued here for claims one and eight rise and fall together. [00:27:52] Speaker 02: I do. [00:27:52] Speaker 00: Thank you. [00:27:53] Speaker 02: I do. [00:27:56] Speaker 02: Unless there are any questions for me, I'll see the rest of you. [00:28:06] Speaker 01: Mr. Isaacson, we'll give you two minutes of rebuttal time. [00:28:10] Speaker 02: Thank you, Your Honor. [00:28:11] Speaker 02: To go back to Paragraph 93, 94 of Cappellucci 349, those are all talking about the customizing nature of selecting information. [00:28:26] Speaker 02: If you look at Paragraph 93, about the middle of the [00:28:29] Speaker 02: Judge Cunningham, you asked about this earlier. [00:28:32] Speaker 02: It says, the system, for example, search many news information sources for news as a function of preferences, attributes, and other found in users' profiles, such as sports and local news. [00:28:45] Speaker 00: What page are you on? [00:28:46] Speaker 00: I apologize. [00:28:46] Speaker 00: I missed the page. [00:28:47] Speaker 02: This is appendix, I think, hold on, eight. [00:28:55] Speaker 01: 831. [00:28:55] Speaker 02: 831, yes, thank you, Your Honor. [00:28:58] Speaker 02: So it says, and this is the important part, and locate the information. [00:29:04] Speaker 01: Is it in paragraph 93 or 95? [00:29:05] Speaker 02: 93. [00:29:06] Speaker 02: This is about line, no, it's the middle. [00:29:10] Speaker 02: Line starting news, locate the information, assemble and format the information into an undefined or user-defined form and present it to the user. [00:29:22] Speaker 02: That's the format. [00:29:23] Speaker 02: That's the appearance. [00:29:24] Speaker 02: That's not changing content. [00:29:26] Speaker 02: That's not changing sentences. [00:29:28] Speaker 02: It's not changing words. [00:29:31] Speaker 01: Well, but that's, Councilman, if Paragraph 93 begins with, for example, the system can do this, that doesn't mean what's in Paragraph 90 isn't going beyond that. [00:29:39] Speaker 01: This is just an example. [00:29:41] Speaker 02: That's exactly right, Your Honor, but it is not going beyond it. [00:29:44] Speaker 02: It is just an example of appearance, of a format change. [00:29:48] Speaker 01: Yes, 93 maybe is that, but why isn't 90 arguably, as the board found, disclosing more than just an appearance change? [00:29:57] Speaker 02: Because there's nothing in 90 that describes changing the text, changing the words. [00:30:03] Speaker 01: Well, so we disagree. [00:30:04] Speaker 01: Because that sentence, this information can be selected, used to select information. [00:30:09] Speaker 01: That's the words. [00:30:10] Speaker 01: That's the content. [00:30:11] Speaker 01: Or how that information is presented. [00:30:14] Speaker 01: And that's the format. [00:30:15] Speaker 02: That's correct, Your Honor. [00:30:16] Speaker 02: But that's not changing the text. [00:30:18] Speaker 02: That's not changing sentences. [00:30:20] Speaker 01: And that's substantial evidence for it. [00:30:21] Speaker 01: You have gone over your time. [00:30:24] Speaker 02: Thank you, Your Honor. [00:30:24] Speaker 01: Thank you. [00:30:27] Speaker 01: Both counsels' cases taken under submission.