[00:00:00] Speaker 00: Our final case for argument is 23-2078, Foxcast versus Resy Media. [00:00:23] Speaker 00: Mr. Friedman, please proceed. [00:00:39] Speaker 02: Good morning, your honors. [00:00:40] Speaker 02: May it please the court, my name is Josh Friedman, and I represent the appellant boxcast. [00:00:45] Speaker 02: The 574 patent claims a live streaming system with remote scheduling that solves the problem of needing complex network setup to control a broadcast device over the internet and behind a router. [00:00:58] Speaker 02: This problem was expressly claimed. [00:01:00] Speaker 02: Quote, the router prevents remote access to the ABD, and quote, without modification or circumvention of the router. [00:01:08] Speaker 02: But the board's claim construction wrote these elements, the problem at the heart of the patent, out of the claims. [00:01:13] Speaker 00: The problem is your claim says, the part you quoted, you left out, the predicate. [00:01:18] Speaker 00: The ABD autonomously performs the following actions without any modification to or circumvention of the router. [00:01:27] Speaker 00: And you've got a list of six actions after that. [00:01:31] Speaker 00: And so the board, I don't know. [00:01:33] Speaker 00: know how the board read that out of the claims, because are you telling me the board allowed something with modification during those six steps? [00:01:43] Speaker 02: No, the board, we don't believe that there should be a temporal limitation on the claim. [00:01:47] Speaker 00: And you shouldn't have put it in the claim. [00:01:50] Speaker 02: I disagree that there's a temporal limitation at all in the claim. [00:01:53] Speaker 02: What the claim, the person who's doing the modification is not the ABD. [00:01:57] Speaker 02: That's clear from the patent. [00:01:59] Speaker 02: The first column of the patent walks through what these modifications are. [00:02:02] Speaker 02: There's three examples. [00:02:03] Speaker 02: And the board, this is one of the few things that we agree. [00:02:05] Speaker 00: So where did you say there can never be modification or circumvention of the router? [00:02:11] Speaker 02: The claim says without modification or circumvention. [00:02:13] Speaker 00: Yeah, when you perform the following actions. [00:02:16] Speaker 00: Correct. [00:02:16] Speaker 00: That's what you wrote. [00:02:17] Speaker 00: So during those actions, is there any modification or circumvention of the router? [00:02:23] Speaker 02: during those actions specifically. [00:02:25] Speaker 02: So the claim requires no modification or circumvention of the router. [00:02:28] Speaker 00: No, that's not what the claim requires. [00:02:30] Speaker 00: The claim does not require no modification or circumvention. [00:02:33] Speaker 00: The claim has multiple steps. [00:02:37] Speaker 00: It's a method claim, right? [00:02:39] Speaker 00: And it doesn't require no modification or circumvention during all three steps. [00:02:43] Speaker 00: It only mentions it in the last step. [00:02:48] Speaker 02: A colon, right? [00:02:49] Speaker 02: It says without circumvention. [00:02:51] Speaker 02: I'll read the claim because it's simpler. [00:02:53] Speaker 02: The claim says, and there's two parts. [00:02:56] Speaker 02: I want to caution against reading this limitation in a vacuum, right? [00:03:00] Speaker 02: So before that, you have that there's a router that prevents remote access from outside to the ABD. [00:03:08] Speaker 02: And then it says the ABD autonomously performs the following actions without any modification or circumvention of the router colon. [00:03:14] Speaker 02: And I think where the hang up is happening is that [00:03:17] Speaker 02: The board literally interpreted this limitation too literally to say that the ABD is the one that is not circumventing the router when it's performing these steps. [00:03:27] Speaker 02: When the patent makes clear that the modification or circumventions that are being talked about are things that the person who's installing the system would do. [00:03:34] Speaker 02: And so the router is part of the environment. [00:03:37] Speaker 02: It's not part of the system. [00:03:38] Speaker 02: The system is the ABD, and the scheduling server, and the media server. [00:03:42] Speaker 02: And the router is in the environment. [00:03:44] Speaker 02: And when a person, this is the first part of the claim, puts the ABD behind the router, [00:03:50] Speaker 02: From that point forward, they can't modify the router. [00:03:53] Speaker 02: They can't modify the router to allow communications to flow freely between the router and the outside world. [00:03:59] Speaker 02: That is the problem that's specified in the first column of the patent. [00:04:03] Speaker 02: And if you read the claim the way that the board read it, and that you seem to be suggesting now, Your Honor, that problem no longer exists. [00:04:11] Speaker 01: What is your best intrinsic support for your reading of this portion of the claim? [00:04:17] Speaker 02: There are a couple of places. [00:04:18] Speaker 02: So I would point first to the entirety of column one of the patent, which lays out the three different kinds of modifications and circumventions. [00:04:30] Speaker 02: And they talk about how complex and difficult they are. [00:04:32] Speaker 02: And this is court forwarding and VPN and DMZ. [00:04:36] Speaker 02: We have evidence in the record for court forwarding, for example. [00:04:38] Speaker 02: And this is that appendix 5277. [00:04:44] Speaker 02: There's a list of instructions that an IT person would have to go through to do port forwarding. [00:04:49] Speaker 02: So that is the example that's given in the patent. [00:04:51] Speaker 02: And that is not a thing that is done by a device like an ABD. [00:04:55] Speaker 02: It's not a thing that's done during live streaming. [00:04:57] Speaker 00: So the problem for me is that I don't see you pointing to any specific language in the spec. [00:05:03] Speaker 00: You want us to expand the scope of a limitation that you claimed. [00:05:09] Speaker 00: And you're saying, because you have to, because that's what really everything in the spec is directed to. [00:05:15] Speaker 00: And hey, I am open to that when, for example, the spec says the invention is, or the present invention requires, or something along those lines. [00:05:23] Speaker 00: So when Judge Cunningham says, what's your best language in the spec, don't just say all of column one, right? [00:05:28] Speaker 00: Point me to your very best language in the spec that makes it clear that people should not be able to ever modify or circumvent the router when using reclaimed method. [00:05:38] Speaker 02: Right, so I think the point is that the problem that's being solved is avoiding having to circumvent or modify the router. [00:05:48] Speaker 02: Where does it say that? [00:05:49] Speaker 02: All right, I'm sorry, I'm getting the patent right here. [00:06:00] Speaker 02: So the very beginning of column one, and this is appendix 101, [00:06:06] Speaker 02: Line 29, various systems exist for broadcasting of live or pre-recorded video streams over the internet. [00:06:12] Speaker 02: These conventional systems suffer from many drawbacks. [00:06:14] Speaker 02: For example, in conventional systems, broadcast devices can't be controlled remotely when devices are situated behind a router's firewall. [00:06:22] Speaker 02: So it's saying right up front, the problem is that you cannot control a device. [00:06:25] Speaker 00: I understand, but so here's the problem. [00:06:27] Speaker 00: Specs are very broad, but then you choose to pursue particular claims. [00:06:32] Speaker 00: And we have not generally read patent claims such that every drawback addressed in the background section is going to be solved by every claim. [00:06:41] Speaker 00: That's not the way we work. [00:06:42] Speaker 00: That would be bad if we did that. [00:06:43] Speaker 00: It wouldn't let you focus in and narrow in and protect particular advances. [00:06:49] Speaker 00: And so where is the language the present invention requires or something that tells me that this claim should absolutely require this, even if the claim doesn't expressly say it? [00:06:59] Speaker 02: There's nothing that specific, Your Honor. [00:07:01] Speaker 02: I'll concede that. [00:07:02] Speaker 02: But Phillips doesn't require something that specific in order to construe a claim. [00:07:06] Speaker 02: The heart of the problem of this invention is that we want to avoid modifying or circumventing the router. [00:07:12] Speaker 02: And the board's construction undoes that. [00:07:14] Speaker 02: Again, that's in up part there. [00:07:15] Speaker 00: Well, where does the specification explain that this is the heart of the invention? [00:07:19] Speaker 00: See, that language would be beautiful. [00:07:21] Speaker 00: If the specification had the language you just said to me, I'd say you win, that that is enough for me to import that limitation into the claim. [00:07:29] Speaker 02: But I'm not finding that. [00:07:31] Speaker 02: I would point also to column four, line. [00:07:37] Speaker 02: That's the paragraph that starts around line 46. [00:07:40] Speaker 02: General inventive concepts encompass broadcasting devices that sit within a firewall and allow broadcasting to be controlled without breaking any IT department regulations and without requiring any configuration changes to the firewall or the router. [00:07:54] Speaker 02: So that again is very explicitly telling you that the point of this is that we do not want an IT person configuring the router when we're installing the system. [00:08:03] Speaker 02: I understand that it doesn't say the problem is this, but it's hard to get more explicit than that language that what we're trying to avoid with this patent and with these claims is that the person who is setting up this system should not have to change the router ever. [00:08:17] Speaker 04: Okay, could I ask you, unless there are further questions on this point, could I ask you to turn to the question of whether the board found also that even under your construction that the claims were obvious? [00:08:31] Speaker 04: And as I understand it, the HTTP protocol does not require any modification of the router. [00:08:39] Speaker 04: It's a request-respond protocol. [00:08:42] Speaker 04: And that protocol is what you use in this patent to get around the firewall, correct? [00:08:50] Speaker 02: Yes, but I disagree that HTTP does not require modification or circumvention. [00:08:55] Speaker 02: And again, that's explicitly in the patent in column one. [00:09:00] Speaker 04: If that's the protocol that's used here, it must avoid modification or circumvention of the router. [00:09:08] Speaker 02: It does when using the claim method. [00:09:10] Speaker 02: What's the difference? [00:09:12] Speaker 02: The difference is the direction of the communication. [00:09:15] Speaker 02: If you have a device behind a firewall, [00:09:17] Speaker 04: I understand, but the idea here is that you send out repeated requests, which is not something you include in the claim language. [00:09:27] Speaker 04: You send out repeated requests, then the responses will also almost get through the firewall, correct? [00:09:32] Speaker 04: That's correct. [00:09:32] Speaker 04: So it's using the HTT protocol to do that. [00:09:36] Speaker 04: So is Mays. [00:09:36] Speaker 04: Mays talks about using the HTT protocol. [00:09:40] Speaker 04: So my understanding of what the board found, [00:09:43] Speaker 04: was that both the patent and Mays used the HTT protocol to circumvent the firewall. [00:09:48] Speaker 04: And you say, oh well, there's a difference because Mays doesn't talk about doing it persistently. [00:09:53] Speaker 04: The problem with that is the word persistently doesn't appear in the claims. [00:09:58] Speaker 02: Yeah, that's not the problem with Mays. [00:09:59] Speaker 02: It's not that it doesn't use. [00:10:01] Speaker 02: It's not that the claim. [00:10:01] Speaker 02: When you say that in your brief. [00:10:02] Speaker 02: It's an example. [00:10:03] Speaker 02: So that's a symptom of another one. [00:10:06] Speaker 04: You agree that the word persistently doesn't appear in the claims, right? [00:10:09] Speaker 04: Correct. [00:10:09] Speaker 02: Correct. [00:10:11] Speaker 02: The way that we would read the claims is, again, we're reading the limitations together in conjunction. [00:10:15] Speaker 02: So there's, again, a limitation that says without modification or circumvention of the firewall. [00:10:21] Speaker 02: There's a limitation of the router. [00:10:22] Speaker 02: There's a limitation that says that the router prevents remote access. [00:10:27] Speaker 02: And then you have the request step. [00:10:29] Speaker 02: And then you have communications coming back after the request step. [00:10:32] Speaker 04: But you promised they're both using HTTP, Mays and the patent. [00:10:39] Speaker 04: Right. [00:10:39] Speaker 04: But Mays and the board explicitly said that that resulted in obviousness. [00:10:46] Speaker 02: Right. [00:10:46] Speaker 02: And again, we're not talking about just HTTP in a vacuum. [00:10:50] Speaker 02: The claim requires requests. [00:10:51] Speaker 02: That's a claim element. [00:10:53] Speaker 02: And whether those requests are sent with HTTP or not doesn't really matter. [00:10:57] Speaker 02: The point is that the way you are getting the claim, the only way you're getting through the firewall or the router is by sending requests from the inside out and getting information back. [00:11:07] Speaker 02: HTTP. [00:11:08] Speaker 02: But Mays does not teach using HTTP in that way. [00:11:11] Speaker 02: Mays never talks about using HTTP to get through a router in order to get information back the other way. [00:11:18] Speaker 04: It does. [00:11:19] Speaker 04: It specifically does that. [00:11:20] Speaker 04: in several places. [00:11:22] Speaker 04: I agree that Mays isn't limited to using HTTP, but it does use HTTP. [00:11:30] Speaker 02: It does, but not for that purpose. [00:11:32] Speaker 02: Maze does not concern itself with getting through a router. [00:11:38] Speaker 02: It's not a part of Maze. [00:11:39] Speaker 02: What Maze talks about is something called protocol filtering, which is when, and this is getting a little in the weeds here, but... Okay. [00:11:46] Speaker 00: Would it be okay if I moved him onto the secondary consideration sheet just so he addresses it in his opening argument? [00:11:51] Speaker 00: So what is your argument regarding the board's error on secondary consideration? [00:11:57] Speaker 02: Right. [00:11:57] Speaker 02: So the board didn't give... There's two arguments. [00:12:00] Speaker 02: So there's a piece of evidence or a group of pieces of evidence that we call Echo 360 that relates to a product that we can... Well, Echo 360 isn't a piece of prior art. [00:12:10] Speaker 00: A piece of prior art is the Allen reference. [00:12:12] Speaker 00: Correct? [00:12:12] Speaker 02: That's correct. [00:12:13] Speaker 00: Okay. [00:12:14] Speaker 02: So the two arguments are, number one, that that evidence, we showed sufficiently that that was an embodiment of Alan, or at least it was made by the same guy that did Alan. [00:12:23] Speaker 04: What does that have to do with it? [00:12:24] Speaker 04: The question for Nexus is whether it embodies the limitations of the claims of the patent, not whether it embodies Alan. [00:12:30] Speaker 02: Agreed. [00:12:31] Speaker 02: Agreed. [00:12:31] Speaker 02: And this is not a secondary considerations argument, and I think that's where the confusion came in, is that one way we're using this evidence is to show that all of these things that the board found [00:12:40] Speaker 02: inherently we're in Alan, we're not in this product that Alan actually made, and that should be evidence against the fact that you would read these limitations. [00:12:50] Speaker 01: I'll pivot there, yes. [00:12:56] Speaker 04: Yes, we are also making a second. [00:13:00] Speaker 04: We are relying on... No, answer. [00:13:02] Speaker 04: Are you relying on 360 as providing the next? [00:13:06] Speaker 02: I think that's incorrect. [00:13:06] Speaker 02: I think we're relying on BoxCast, the praise of BoxCast product from the owner of Echo 360. [00:13:12] Speaker 04: That's what we're relying on. [00:13:14] Speaker 04: What does the 360 have to do with it? [00:13:16] Speaker 04: There's no contention that embodies the limitations of the patent? [00:13:20] Speaker 02: Echo 360 was the owner of, that came to BoxCast. [00:13:24] Speaker 02: So what? [00:13:26] Speaker 02: I suppose it doesn't matter. [00:13:28] Speaker 02: I think it does matter because the person who's giving the praise is the owner of the prior art reference. [00:13:32] Speaker 02: I think that should count for something. [00:13:35] Speaker 02: But the nexus is in the praise, right? [00:13:38] Speaker 02: The emails that are talking about BoxCast product from Echo360 say, we love your capture device, which is the claimed ABD. [00:13:45] Speaker 02: They say it's very plug and play, which again, that is the solution to the problem that's claimed, right? [00:13:50] Speaker 02: It's plug and play because [00:13:52] Speaker 02: you can plug it in without modifying the router and it just worked. [00:13:55] Speaker 00: And they talk about the quality of the streams and they talk about... I think what the board found is that you didn't establish a link between that phrase and claim elements or claim features. [00:14:07] Speaker 00: Is the board wrong about that? [00:14:08] Speaker 00: Yes. [00:14:09] Speaker 00: Where did you establish that? [00:14:11] Speaker 00: Where is your best evidence where you established that? [00:14:14] Speaker 02: Again, it's the words of the email that I just said. [00:14:16] Speaker 02: So the email is on... But here's the problem. [00:14:20] Speaker 00: If I say your device is great, that is not a nexus. [00:14:25] Speaker 00: Maybe your device is really great for reasons that don't have to do with the claim language. [00:14:30] Speaker 00: So what precise language in the praise... I'll resourcing the rebuttal time, don't worry. [00:14:34] Speaker 00: What precise language in the claim is their praise [00:14:39] Speaker 00: kind of pulled into. [00:14:40] Speaker 02: Yeah, so I'll try to articulate that again, because I agree. [00:14:44] Speaker 02: They're not just saying it's great. [00:14:45] Speaker 02: They're saying it's great because of these reasons, and those reasons are the broadcasting device, which is the claimed ABD. [00:14:51] Speaker 02: Those reasons are plug and play. [00:14:52] Speaker 04: Even though the 360 doesn't embody the patent claims. [00:14:56] Speaker 04: Excuse me? [00:14:57] Speaker 04: The 360 doesn't embody the patent claims. [00:15:00] Speaker 02: We contend that Echo 360 is the same as Allen, and Rezzi in their petition said that Allen embodies the patent. [00:15:06] Speaker 04: But that's not the same thing as you're establishing that Allen and the patent are the same, because if you did establish that, then you'd lose on obviousness on the connection. [00:15:17] Speaker 02: No, I think we did establish again also that ECHO 360 has a lot of the limitations that are in the class. [00:15:23] Speaker 04: A lot of the limitations? [00:15:24] Speaker 04: That's not enough for Nexus. [00:15:26] Speaker 02: I believe it is, Your Honor. [00:15:27] Speaker 02: We cited the class co-case, for example, that you only need to show everything for a presumption, right? [00:15:33] Speaker 02: It's not black or white. [00:15:34] Speaker 02: If you don't get the presumption, you still get Nexus. [00:15:36] Speaker 00: No, you don't still get Nexus unless you establish Nexus. [00:15:39] Speaker 02: Right, but Nexus is not black or white. [00:15:42] Speaker 00: So I'm looking at the email itself. [00:15:45] Speaker 00: This is what I think is your best email for praise. [00:15:48] Speaker 00: And if you think there's a different email for praise, you let me know. [00:15:50] Speaker 00: I'm on 4438. [00:15:50] Speaker 00: Do you have that? [00:15:53] Speaker 02: Yes. [00:15:54] Speaker 00: 4438. [00:15:55] Speaker 00: I mean, if you think there's a better appraised email, I'm happy to look at it. [00:15:59] Speaker 00: The two best ones for you were 4435, but that just says your video recording is awesome. [00:16:05] Speaker 00: And then 4438 has a little more specificity. [00:16:08] Speaker 00: It says very plug and play, which I think is what you're trying to get at. [00:16:11] Speaker 00: So I think this is your strongest potential email. [00:16:15] Speaker 00: If there's a different one and you'd rather have us look at that with no time left, which one do you want me to look at? [00:16:20] Speaker 02: 4438 is probably the best. [00:16:22] Speaker 00: That's what I thought too. [00:16:23] Speaker 00: So what it says is, we enjoyed testing your device. [00:16:26] Speaker 00: Well, that's not praise about your patented features or the claimed invention. [00:16:31] Speaker 00: Then it says, we found it to be easy to set up and get started, very plug and play. [00:16:35] Speaker 00: So I assume that that is what you say is tied to [00:16:39] Speaker 00: somehow the patented features that is the problem in solution it's the fact that you could plug it in without having a modified or circumvent firewall because it's not the quality of the streams produced for high-quality like that doesn't make it does your honor we had an argument below that the the a bd where's that time you show me that claim and you tell me what limitation has to do with better stream quality [00:17:03] Speaker 02: The ABD. [00:17:03] Speaker 02: We had an argument below that the ABD isn't just a general purpose computer. [00:17:08] Speaker 00: I am looking at claim one. [00:17:11] Speaker 00: I don't care what you say about an ABD. [00:17:13] Speaker 00: All that matters to me is what claim one requires with regards to the ABD. [00:17:17] Speaker 00: So what element of claim one is tethered to the quality of the video stream? [00:17:25] Speaker 02: Again, it's two. [00:17:26] Speaker 02: It's not just the ABD. [00:17:27] Speaker 02: It's also the live streaming server. [00:17:28] Speaker 02: So these are the media servers that are in the claim. [00:17:31] Speaker 02: That the fact that we're not streaming out from just the ABD itself, but we're then pushing that information out to another server to do the streaming. [00:17:39] Speaker 00: I guess I was not able to be understood. [00:17:42] Speaker 02: Which claim element? [00:17:58] Speaker 02: So receive data relating to the, oh, I'm sorry, transmit digital content via the internet connection to the second server contemporaneously with the live event and based on data relating to a recording start time. [00:18:09] Speaker 02: And I will add also that we've used claim one as representative, but the other independent claims here go from the perspective of the live streaming server. [00:18:19] Speaker 02: and those claims do specifically talk about streaming from that media server. [00:18:24] Speaker 00: So you need to break those arguments out on appeal to us. [00:18:26] Speaker 00: You focused on claim one. [00:18:30] Speaker 00: That's all I can focus on is what you are giving the briefs. [00:18:33] Speaker 00: Okay, thank you very much. [00:18:37] Speaker 00: I'll restore your rebuttal time. [00:18:46] Speaker 00: If you don't mind, I'm sorry, please introduce yourself. [00:18:48] Speaker 03: May it please the court, Sanford Weisberg, for resi media. [00:18:50] Speaker 00: If you don't mind, would you start where he left off with the secondary considerations and we'll work backwards just because it's kind of fresh in my mind. [00:18:56] Speaker 03: Yes. [00:18:57] Speaker 03: So starting with the lack of a link between ECHO 360 and the Allen reference, we think the board relied on substantial evidence there and finding that was not enough. [00:19:08] Speaker 00: Praise doesn't have to be clearly linked or tethered to some piece of prior art. [00:19:18] Speaker 00: That was a red herring. [00:19:19] Speaker 00: But this praise does say, and it is from somebody in the industry, so that's the kind of praise that would matter. [00:19:28] Speaker 00: We found your device very easy to set up and get started very plug-and-play. [00:19:32] Speaker 00: Why doesn't that sort of go to what they are really claiming the nature of your overall invention was? [00:19:40] Speaker 03: At the threshold, they did not argue praise at the board. [00:19:43] Speaker 03: They do argue it in their brief in this court, but they did not argue it, although they argued failure of others, in specific with regard to Echo 360. [00:19:51] Speaker 03: In terms of setting aside that waiver. [00:19:53] Speaker 00: So they argued praise to us. [00:19:54] Speaker 00: That's what I understood their argument to be. [00:19:56] Speaker 00: And if you did this, forgive me, you just had to help me. [00:19:59] Speaker 00: In your brief, did you say that argument was waived? [00:20:01] Speaker 00: We did, yes. [00:20:03] Speaker 00: So you said the argument of praise was waived? [00:20:06] Speaker 03: We did. [00:20:07] Speaker 03: And I could point to an appendix site as well. [00:20:12] Speaker 03: Bear with me for one second. [00:20:15] Speaker 03: 523 of the appendix is the box cast patent owner response at the board relying on failures of others and not on praise. [00:20:25] Speaker 03: But I do want to address the merits of this as well, in the event that the court disagrees with me on waiver. [00:20:30] Speaker 00: And I think that- Just tell me where you argued waiver, because I missed it. [00:20:34] Speaker 00: Yes. [00:20:34] Speaker 00: Where did you argue waiver in the red brief, if I see it? [00:20:36] Speaker 00: I think it might be page 35. [00:20:39] Speaker 03: It's on 35 of our brief, of the red brief. [00:20:42] Speaker 00: Yep. [00:20:42] Speaker 00: Yep. [00:20:43] Speaker 03: And then we also go on to address the merits after the waiver point. [00:20:48] Speaker 03: And I think when we look at things like, quote, very plug and play, very easy to set up, very easy and intuitive with high quality streams, I think Your Honor already addressed high quality streams, I'll set that aside. [00:21:00] Speaker 03: But very plug and play, what does that mean exactly? [00:21:04] Speaker 03: We have [00:21:05] Speaker 03: It's not connected to something like the hidden ABD problem. [00:21:09] Speaker 03: It's not connected to your IT person at your site doesn't need to do anything because it's already been pre-configured at the factory. [00:21:16] Speaker 03: It's just a very general assertion that's not tied to the language of the claim. [00:21:21] Speaker 03: And that was their burden as the patent owner to establish that sort of link between praise. [00:21:26] Speaker 03: And again, not arguing Echo 360 here. [00:21:29] Speaker 03: I am arguing waiver. [00:21:30] Speaker 03: And I'm also arguing this is just the general type of praise that in cases like Classco and others, [00:21:35] Speaker 03: is too general to support obviousness. [00:21:38] Speaker 03: But even if it were, we think that the support on the prior art references for obviousness under Allen and Mays is more than sufficient to override that. [00:21:46] Speaker 03: And I'd like, if I could, to go to one point on Mays. [00:21:49] Speaker 03: We heard from my friend on the other side that Mays does not address HTTP being able to get through a router. [00:21:55] Speaker 03: To the contrary, appendix 2593, Mays specifically addresses that HTTP [00:22:02] Speaker 03: is guaranteed to be able to tunnel through a router. [00:22:06] Speaker 03: So we do have Maize getting through that. [00:22:07] Speaker 03: And then we heard also, well, Maize doesn't address who starts the request, and is it done by the ABD. [00:22:14] Speaker 03: But that's where Alan comes in. [00:22:16] Speaker 03: Alan has what's called a multimedia capture device, which is the analog of the ABD. [00:22:20] Speaker 03: And it's clear in Allen, and at least the board had substantial evidence to find, that the MCD in Allen is initiating that request to get access to the schedule. [00:22:32] Speaker 03: It's striking how similar it is to our patent. [00:22:35] Speaker 03: And frankly, one could probably have relied on Allen as disclosing all of the elements. [00:22:40] Speaker 03: But Allen, to be fair, does not explicitly say HTTP. [00:22:43] Speaker 03: It would be sort of inherent or assumed. [00:22:46] Speaker 03: Belt and suspenders, we looked at Mays, which also on 2593 does explicitly address internet, explicitly addresses tunneling through using HTTP to get through a router. [00:23:00] Speaker 03: So we agree with the point that under, regardless of the claim construction, that because we only relied on Mays for HTTP and we relied on Allen for the rest of it, that we [00:23:12] Speaker 03: It doesn't matter whether there was configuration or modification. [00:23:15] Speaker 03: You could just assume box cast construction. [00:23:18] Speaker 03: We still prevail. [00:23:19] Speaker 03: But we also argue, of course, that the board was correct in its claim construction. [00:23:24] Speaker 03: We do think that the plain language ties those six actions, only those six actions, to the without modification or circumvention limitation. [00:23:32] Speaker 03: And I wanted to just also draw the court's attention to one, excuse me, the patent [00:23:41] Speaker 03: And excuse me, the board's decision, 14 to 15, the board talks about, well, this temporal aspect. [00:23:48] Speaker 03: And when can configuration occur? [00:23:52] Speaker 03: It's Rezzi's and, in turn, the board's position that the modification can occur before the streaming, these six steps occur. [00:24:00] Speaker 03: And we think that the board also relied in making that conclusion on the patent, specifically column 17. [00:24:06] Speaker 03: This is at appendix 109. [00:24:10] Speaker 03: Sorry, lines 54 to 60. [00:24:12] Speaker 03: It talks about certain pre-configuring of the system that can happen at the factory and therefore need not be done by an IT person on site. [00:24:20] Speaker 03: That still is a modification or circumvention that's occurring. [00:24:24] Speaker 03: So we think that's added support. [00:24:26] Speaker 01: On appendix 109, just for clarity, what column were you looking at? [00:24:29] Speaker 03: I was looking at column 17 on 109, lines 56 to 60. [00:24:36] Speaker 03: And I wanted also to mention one other site that the board had before it. [00:24:40] Speaker 03: which was Rezzi's expert, Dr. Eastam, who explained that there's always some configuration of the router required, at least at the factory where it's set up. [00:24:51] Speaker 03: And so to make their claim operable, you have to allow that. [00:24:55] Speaker 03: And that, again, supports the plain language interpretation of the claim. [00:25:01] Speaker 03: Unless the court has further questions, I would ask that the board be affirmed. [00:25:06] Speaker 00: Thank you very much. [00:25:09] Speaker 00: Mr. Friedman, you have some rebuttal time. [00:25:11] Speaker 00: The story is two minutes. [00:25:12] Speaker 00: Thank you. [00:25:19] Speaker 02: Thank you, Your Honor. [00:25:21] Speaker 02: I would like to turn first to secondary considerations and say that we did make a failure argument below, but it was the same evidence. [00:25:31] Speaker 02: And so I'm not sure that it matters that we call it praise. [00:25:33] Speaker 02: I think the way we said it in our brief is that one person's failure is another person's praise. [00:25:39] Speaker 01: Would you at least agree though with the statement that was in the red brief that you didn't separately make the argument as an industry of praise argument? [00:25:50] Speaker 02: We didn't say praise. [00:25:51] Speaker 02: We said failure of others. [00:25:52] Speaker 02: But we don't think that's a waiver issue because it's the same evidence and it's essentially the same argument. [00:25:57] Speaker 02: I would also like to address the part of my other counsel's brief that he talked about with regard to maze. [00:26:05] Speaker 02: And he talked about tunneling end to end through maze. [00:26:09] Speaker 02: That is not at all what's happening in the patent. [00:26:11] Speaker 02: I started to talk about that briefly before. [00:26:14] Speaker 02: What that is is sometimes routers will be set up to certain protocols to block them. [00:26:18] Speaker 02: And what this does is it uses the word piggybacking. [00:26:20] Speaker 02: It'll stick a protocol that is banned inside of another one that is not banned, and so it'll trick the router into letting that through. [00:26:27] Speaker 02: That's what Maze is all about. [00:26:28] Speaker 02: It has nothing to do with the type of communications that are happening in our patent and in our claims. [00:26:36] Speaker 02: That is why we ask that Maze not even be considered, because it is not analogous art. [00:26:40] Speaker 02: The board found that it was analogous art solely because it has servers and it goes over the internet. [00:26:45] Speaker 02: That was literally the board's finding as to why that was analogous art. [00:26:49] Speaker 02: And as we said, we believe that that is such a broad way of addressing analogous art that it would capture half of all inventions in the 21st century. [00:26:57] Speaker 02: That cannot be enough. [00:26:59] Speaker 02: We do not believe that it requires literal one-to-one showing that needs to be exactly the same. [00:27:05] Speaker 02: But the Inri Dominsky case says that there needs to be a substantial similarity between the structures [00:27:10] Speaker 04: If the You never argued analogous art in your opening argument. [00:27:17] Speaker 02: In the briefs, we did, yes. [00:27:18] Speaker 04: No, here, in your oral argument. [00:27:20] Speaker 02: Oh, I did not have time to address it, Your Honor. [00:27:22] Speaker 02: So I'm saying it now. [00:27:25] Speaker 00: My time has ended. [00:27:26] Speaker 00: Is there anything else? [00:27:27] Speaker 00: We thank both counsels. [00:27:28] Speaker 00: This case is taken under submission.