[00:00:00] Speaker 04:
The first case is in Ray Express Mobile, 2023, 1076.

[00:00:08] Speaker 04:
Mr. Alberti.

[00:00:11] Speaker 02:
morning uh... smith please the court uh... my name is david alberti i represent the appellant express mobile in this appeal of the rejection and uh... finding it to be based on obviousness of claim one of the three nine seven patent based on the vandamere references the only vandamere reference we're concerned with today is uh... the vandamere three one six reference i'll for shorthand call that vdm three one six

[00:00:39] Speaker 02:
And the hardest appeal deals with the claim limitation substantially, contemporaneously, which both parties had appeared to agree means happening at the same time from a human perspective.

[00:00:57] Speaker 02:
Despite that agreement, the record will show that this construction was misapplied to include things that go beyond that.

[00:01:08] Speaker 02:
For example, to include things such as requiring some additional user interactions from the time of a selection setting to the time of a display.

[00:01:18] Speaker 04:
Could you tone down your voice a little bit?

[00:01:20] Speaker 04:
I don't know whether the sound is turned up or it's quite loud.

[00:01:24] Speaker 02:
I'm a loud talker, so I'll do my best to talk a little softly.

[00:01:29] Speaker 03:
Before you get into the merits of this, can I just ask you a housekeeping question?

[00:01:33] Speaker 03:
Sure.

[00:01:34] Speaker 03:
Is this the case where there were some related appeals dealing with the same claim?

[00:01:39] Speaker 03:
And if so, I just wondered what the status of those were.

[00:01:41] Speaker 02:
There are.

[00:01:42] Speaker 02:
I believe this is an ex parte appeal.

[00:01:46] Speaker 02:
There is some IPRs that were on appeal, one on the 397 patent.

[00:01:54] Speaker 03:
Are the issues the same then?

[00:01:55] Speaker 03:
Will this case dispose of those cases?

[00:01:59] Speaker 02:
No, it's different prior art.

[00:02:01] Speaker 02:
And I believe you will hear about the substantially contemporaneously term in the other appeal.

[00:02:08] Speaker 02:
So it is relevant, but with respect to how that term is interpreted and applied.

[00:02:14] Speaker 02:
However, it would not be dispositive on that issue.

[00:02:20] Speaker 02:
So going back to what we'll call the misapplication of that, it is not just a minor error, but a fundamental flaw.

[00:02:30] Speaker 02:
And that is because in the 397 patent, the entire thrust of that patent is developing a website build tool that allows for what's called the WYSIWYG performance.

[00:02:44] Speaker 02:
What you see is what you get.

[00:02:46] Speaker 02:
And it does that in real time.

[00:02:48] Speaker 02:
And the way it does that is it improved over some prior art technologies, which at the time, and this was a long time ago, remember this is late 90s, HTML, Java, and JavaScript would interact.

[00:03:02] Speaker 02:
As the 397 patent explains, it was very slow and inefficient.

[00:03:08] Speaker 02:
So what the 397 patent did is it developed a runtime engine, sometimes called a build engine, and that allowed the system to have real-time two-way communication.

[00:03:19] Speaker 02:
And which means, for example, if you drag an image across the website that you're developing, you can actually see that image move.

[00:03:30] Speaker 02:
If you can imagine a video game where you have a joystick and you see a character move across the screen as you move that joystick, that would be in contrast to some of those old, and I might be dating myself, but those old video games where it would be a tech space adventure game where you'd say,

[00:03:49] Speaker 02:
type in, pick up the sword, and then you would wait, and your character would then pick up the sword, and you say, type in, move forward, and it would process anyway, and your character would move forward.

[00:03:58] Speaker 02:
That was the old technology.

[00:04:00] Speaker 02:
New technology, WYSIWYG, the technology that this patent developed, again, allows whatever change you're making to appear in real time to a human user.

[00:04:11] Speaker 01:
Where is real time and WYSIWYG in these claims?

[00:04:17] Speaker 02:
is incorporated within that construction.

[00:04:20] Speaker 01:
Is it the substantially contemporaneous term?

[00:04:23] Speaker 02:
Yes, exactly.

[00:04:25] Speaker 01:
And you told the examiner or the board to use the construction that certain district courts had used, is that right?

[00:04:33] Speaker 02:
That's correct.

[00:04:34] Speaker 01:
Did those courts make clear?

[00:04:35] Speaker 01:
Did they accept your view that substantially contemporaneously, as they were construing it, incorporated WYSIWYG and real-time into the claims?

[00:04:45] Speaker 02:
Yes, and if I might direct your honors to Appendix 1811, this is the reasoning of the Spinahto Court.

[00:05:00] Speaker 02:
And you'll see here at 01811, these are the sections of the patent that the Spinahto Court relied on.

[00:05:12] Speaker 02:
Starting at the 397 patent 10 16 through 53 You'll see it talks about the change of settings which again is part of this larger claim term and it says the result immediately processed by build engine and displayed at the build frame 500 and it repeats this three separate times and

[00:05:35] Speaker 02:
So as soon as you change a setting, it's immediately displayed.

[00:05:39] Speaker 02:
And then if you go down further, the other section, the Spenaco court relied on, talks about the polling technique, which is key in the specification to allowing this real-time communication.

[00:05:55] Speaker 02:
And you can see, and these emphases are by the court itself.

[00:05:59] Speaker 02:
It talks about the polling technique.

[00:06:02] Speaker 02:
It calls it the second technique.

[00:06:05] Speaker 02:
A polling loop is defined in the panels, panel 400, JavaScript, that creates a near continuous, at least from a human perception point of view, dynamic real-time link to monitor the events inside the build engine.

[00:06:22] Speaker 02:
And then it goes on to talk about the settings.

[00:06:26] Speaker 02:
And then it goes on, appendix 1812, based on these excerpts.

[00:06:33] Speaker 02:
So it's basing its reasoning on those excerpts.

[00:06:37] Speaker 02:
It found contemporaneous to mean happening at the same period of time, and then substantially contemporaneous to mean happening at the same time from a human user perspective.

[00:06:48] Speaker 02:
So it's certainly within the understanding of the district court when it adopted that claim construction.

[00:06:56] Speaker 03:
And so what is the VDM 316 or the 362?

[00:07:01] Speaker 03:
What are they missing?

[00:07:02] Speaker 03:
What would they need to have had to satisfy your view of the claim limitation?

[00:07:06] Speaker 02:
So interesting.

[00:07:06] Speaker 02:
VDM is entirely silent on timing.

[00:07:10] Speaker 02:
Unlike the 397 patent, which was directed towards this WYSIWYG real-time system, VDM is more concerned about

[00:07:22] Speaker 02:
allowing somebody to create an online diary so that you could store things, go back, look at them.

[00:07:30] Speaker 02:
You could have your friends look at your diary.

[00:07:32] Speaker 02:
There's nothing, nothing at all in VDM that talks about the speed of VDM.

[00:07:39] Speaker 02:
In fact, it mentions Java, HTML, JavaScript.

[00:07:43] Speaker 02:
But those are the same prior technologies that the 397 patent talked about and then improved over.

[00:07:49] Speaker 02:
VDM doesn't do that at all.

[00:07:53] Speaker 02:
And there's, and I'll just, because there are two sections, two pieces of VDM that the PTAB relied on.

[00:08:03] Speaker 02:
And the first one uses this language, quote unquote, at the same time.

[00:08:11] Speaker 02:
And I'll refer your honors to appendix 456 through 457.

[00:08:18] Speaker 02:
That's VDM columns 1265 through 1310.

[00:08:38] Speaker 02:
And so you can see here in context, it says that the reason that the diary applet must generate an executable program associated with each handle is that there's no other way for the applet to learn when the diary owner has clipped on a handle.

[00:08:54] Speaker 02:
And it goes on to say, for HTML, the HTML for diary pages is actually displayed by browser 110.

[00:09:03] Speaker 02:
That's because the applet itself doesn't have display capability.

[00:09:09] Speaker 02:
So then the key phrase here is it says that the method of Figure 4L enables embodiments such as a diary to display and manipulate contents within an HTL document.

[00:09:22] Speaker 02:
and at the same time uses the browser as a vehicle to handle actual display.

[00:09:30] Speaker 02:
That does not say that the browser displays changes in real time or displays changes immediately following a change.

[00:09:40] Speaker 02:
It merely says that, I would say more in the colloquial sense, that in addition to

[00:09:47] Speaker 02:
this applet you also use a browser for display because as it explained above in that paragraph

[00:09:55] Speaker 02:
The outlet doesn't have display capability.

[00:09:59] Speaker 02:
So there's nothing about in this sentence that suggests in any way that any change you make will be displayed substantially contemporaneously in real time.

[00:10:11] Speaker 01:
That's how the board read it, right?

[00:10:13] Speaker 01:
And we have a very deferential review of the board's reading of the prior art, don't we?

[00:10:18] Speaker 02:
uh... it's well you there's a differential review however uh... it has to be based on some evidence and here uh... it yet lack of evidence is not evidence the fact that it doesn't say how fast it is is it not reasonable to read at the same time as meaning substantially contemporaneously from the perspective of a human not in this context not in this context because the again if you read the sentence

[00:10:46] Speaker 02:
It says two things.

[00:10:49] Speaker 02:
It enables a body, such as a diary, to display and manipulate contents within an HTML document.

[00:10:58] Speaker 02:
It's talking about a function of the diary.

[00:10:59] Speaker 02:
And then it says, at the same time, it uses the browser as a vehicle to display.

[00:11:06] Speaker 02:
It doesn't say, at the same time the browser displays.

[00:11:10] Speaker 02:
It's just saying it uses it as a vehicle, saying there's two things.

[00:11:14] Speaker 02:
And then it even makes it clear

[00:11:16] Speaker 02:
The very next sentence, it says, using the browser avoids having to duplicate the browser functions that interface to the user, and that displays in accordance with the HTML.

[00:11:29] Speaker 02:
So at the same time, it's only talking about avoiding duplicative work by the browser.

[00:11:36] Speaker 04:
Counsel, you're into your bottle of time.

[00:11:38] Speaker 04:
You can continue or save it as you wish.

[00:11:41] Speaker 02:
I will save it.

[00:11:42] Speaker 02:
Thank you.

[00:11:55] Speaker 00:
Good morning, and may it please the court.

[00:11:57] Speaker 00:
Peter Sallward on behalf of the USPTO director.

[00:12:00] Speaker 00:
Before the court this morning is a single, narrow issue.

[00:12:04] Speaker 00:
Does substantial evidence support the board's finding about what the prior art teaches?

[00:12:09] Speaker 00:
The answer to that question is yes.

[00:12:11] Speaker 03:
Can I ask you the same sort of housekeeping question I asked your friend, which is just what we do here in affirmance, hypothetically, obviate any of the cases in the pipeline?

[00:12:22] Speaker 00:
I can't answer that question entirely, Judge Prost.

[00:12:24] Speaker 00:
I can answer it in part.

[00:12:26] Speaker 00:
The related case number is 23-1645.

[00:12:32] Speaker 00:
And I do know that it has neared the final stages of briefing.

[00:12:36] Speaker 00:
So this case is much farther along than that case.

[00:12:41] Speaker 00:
I do know that only claim one is at issue here.

[00:12:44] Speaker 00:
I'm not sure about the number of claims at issue in that case.

[00:12:47] Speaker 00:
And that's why I'm not sure.

[00:12:49] Speaker 04:
Isn't there quite a bit of litigation going on?

[00:12:52] Speaker 00:
There is, Your Honor.

[00:12:54] Speaker 00:
In the statement of related cases, Mr. Alberti has identified an extensive number of related cases.

[00:13:02] Speaker 00:
Yes.

[00:13:04] Speaker 03:
And the patent here has expired.

[00:13:05] Speaker 00:
It is.

[00:13:07] Speaker 04:
And obvious is obvious if we affirm that it must govern some of the other cases.

[00:13:15] Speaker 00:
That's correct, Your Honor.

[00:13:17] Speaker 00:
And as I said, the only question here is one of the extremely narrow, and as Judge Stark pointed out, deferential review about fact-finding by the board with regard to the teaching of the BDM 316 reference.

[00:13:29] Speaker 00:
And the board found, as supported by substantial evidence, that BDM 316 teaches that the display is updated substantially contemporaneously with the user's selection of settings.

[00:13:43] Speaker 00:
And they pointed to

[00:13:45] Speaker 00:
The specific examples described with respect to figures 4i through 4n in BDM 316.

[00:13:51] Speaker 00:
It also relied on the process flow chart that's described in figure 4L.

[00:13:59] Speaker 00:
And in that chart, we can see that there are two parts similar to what the 397 patent discloses.

[00:14:05] Speaker 00:
There's a build engine that's built in, you know,

[00:14:07] Speaker 00:
preferably written in Java, and a browser used for the display.

[00:14:11] Speaker 00:
And information is continuously being passed back and forth as shown in figure 4L.

[00:14:17] Speaker 00:
And at the close of that description of figure 4L is the passage that you were discussing with Mr. Alberti at the close of his preliminary remarks, which says on APPX 457, column 13,

[00:14:34] Speaker 00:
after showing those steps, the divided process, that information is, you know, user selection is of a handle is detected by the browser and passed to the build engine.

[00:14:44] Speaker 00:
The build engine makes the updates to the code and passes it back for display.

[00:14:48] Speaker 00:
That's where we get to the sentence starting at

[00:14:51] Speaker 00:
column 13, line 3, that begins, the method of figure 4L enables embodiments such as a diary to display and manipulate contents within an HTML document, and at the same time uses the browser as a vehicle to handle the actual display and diary owner input.

[00:15:13] Speaker 00:
Using the browser avoids having to duplicate the browser functions that interface to the user and that display pages in accordance with HTML.

[00:15:21] Speaker 00:
This clearly supports the board's finding that the build engine and the display are working hand in glove to provide a seamless experience for the user providing input who's editing their web page in real time.

[00:15:35] Speaker 01:
Even though Mr. Alberti took us to that specific sentence, he also argues that the BDM reference does not disclose anything about timing.

[00:15:44] Speaker 01:
What's your response to that?

[00:15:49] Speaker 00:
I would say that one of ordinary skill in the art being this patent and the passage that we've just discussed, in particular the way that the process steps occur as described in figure 4L, and then

[00:16:03] Speaker 00:
the closing statement that those processes are happening in concert at the same time.

[00:16:08] Speaker 00:
One of ordinary skill would understand that to mean substantially, contemporaneously.

[00:16:12] Speaker 00:
In other words, without visible delay from a human user's perspective.

[00:16:19] Speaker 00:
Everything in the BDM 316 reference supports that reading.

[00:16:25] Speaker 00:
There's nothing that, to the contrary, that supports that there is some noticeable or obvious delay in the processing of user selections before they are displayed.

[00:16:36] Speaker 01:
What about the references to eventually regenerated or updating periodically?

[00:16:43] Speaker 01:
Why are those not indications of some sort of humanly perceptible delay?

[00:16:48] Speaker 00:
Right, Your Honor.

[00:16:50] Speaker 00:
As the director explained in her brief with regard to eventually,

[00:16:54] Speaker 00:
That's made in the specific context of describing the move object example that's shown in figures 4J and proceeding where there's a smiley face.

[00:17:06] Speaker 00:
And so what it says is you have this window where you can manipulate the spot smiley face picture object.

[00:17:12] Speaker 00:
And one of the buttons you can use is move object down.

[00:17:17] Speaker 00:
What it says in that sentence, again, that's still on APTX 457, column 13.

[00:17:28] Speaker 00:
says, starting at line 22, if the diary owner indicates via several presses of button 493, that's where we talked about the Scrivener's error, of figure 4i that the content object is to move to the bottom position, applet 112 will eventually regenerate the diary page to look like the diary page in figure 4m.

[00:17:51] Speaker 00:
So VDM316 doesn't show all those intermediate steps.

[00:17:55] Speaker 00:
It doesn't put in five different things, each showing the smiling face moving down one position.

[00:18:02] Speaker 00:
It jumps from the start to what it will look like at the end.

[00:18:05] Speaker 00:
And that iterative process is the reason for using the word eventually, because the user seeing it move each time, eventually it will wind up at the final view.

[00:18:20] Speaker 00:
There's also a similar argument about the word, I believe it's finally occurring in figure four, apple.

[00:18:29] Speaker 00:
That is, I think, carries even less weight because it's just a set of bullet points there describing the processing steps to move the picture object.

[00:18:39] Speaker 00:
And the last one, as we would often do in legal writing and in conclusions, that starts with finally.

[00:18:45] Speaker 00:
There's nothing to indicate that that is somehow to be associated with a lapse of time, particularly a lapse of time that would be perceptible by the user.

[00:18:57] Speaker 01:
The patentee makes repeated reference to unrebutted expert testimony.

[00:19:03] Speaker 01:
I assume they're correct that only they presented an expert in the course of the re-exam.

[00:19:09] Speaker 01:
Is that not always the case?

[00:19:11] Speaker 01:
And what do we do with that?

[00:19:12] Speaker 00:
That is the case, Your Honor.

[00:19:14] Speaker 00:
This next party proceeding in the patent office does not typically have a rebuttal expert witness.

[00:19:22] Speaker 00:
The board did consider the expert witness testimony here and, as is its job to do, looked to the reasoning and the basis for the expert's opinions and found it was not credible.

[00:19:34] Speaker 00:
And as we pointed out in the director's brief, this court defers to the board's findings about credibility of the expert and the expert opinion.

[00:19:41] Speaker 00:
And the board quite thoroughly looked at Mr. Redox, that's ExpressMobile's expert, his testimony and found it was conclusory.

[00:19:51] Speaker 00:
It just made assertions about how fast things happened in the 397 versus BDM316 without backing that up.

[00:19:59] Speaker 00:
with citations to the patents or that would support those conclusions or in particular numerical analysis that might support that somehow one is much faster than the other from the viewpoint of one ordinary skill in the art.

[00:20:14] Speaker 00:
And so the board quite rightly found that that testimony was not credible or persuasive.

[00:20:19] Speaker 01:
We've never said that in a re-exam.

[00:20:22] Speaker 01:
ex parte re-exam, the board must accept the expert opinion of the patentee, just because it's unrebutted in some sense, correct?

[00:20:32] Speaker 00:
No, that's right, Your Honor.

[00:20:33] Speaker 00:
It may be harder to disregard unrebutted testimony, but in any case, this court has said the board always has an obligation to examine expert testimony and determine whether it is credible and reliable, even when it's unrebutted.

[00:20:50] Speaker 00:
There are no further questions.

[00:20:51] Speaker 00:
You'll be the remainder of my time.

[00:20:53] Speaker 04:
Thank you, counsel.

[00:20:54] Speaker 04:
Mr. Alberti has a little rebuttal time.

[00:21:09] Speaker 02:
Thank you, Your Honors.

[00:21:11] Speaker 02:
I'd first like to address the issue about Mr. Wettek's testimony.

[00:21:15] Speaker 02:
You guys are correct.

[00:21:17] Speaker 02:
It was completely unrebutted.

[00:21:20] Speaker 02:
seemingly disregarded for no legitimate reason, I would say, because that testimony was consistent, very consistent with the teachings of the patent, that the prior art build process using HTML in order to build and rebuild using that prior art technology that's discussed in the 397 patent that is improved over

[00:21:48] Speaker 02:
was slow and ineffective.

[00:21:50] Speaker 02:
The 397 patent says that.

[00:21:53] Speaker 02:
Mr. Wettich says that.

[00:21:55] Speaker 02:
In fact, and we'll get to this later, but the fact that his testimony is consistent with the patent itself, and specifically said, for example, in Appendix 1735, paragraph 107, that the

[00:22:14] Speaker 02:
The use of eventually would not mean immediately after or at the same time because in the implementation of VDM, that's owing to the delay involved in building and rebuilding the HTML at the time of VDM or the 397 patent.

[00:22:32] Speaker 02:
So it's tying the 397 patent discussion directly to the prior art at the time and the slowness of VDM.

[00:22:42] Speaker 02:
And again, just to repeat, the absence of evidence is not evidence.

[00:22:46] Speaker 02:
It seems that the director's point is, well, the fact that it doesn't say anything about timing, a person of skill in the art would understand that it would be fast or substantially contemporaneous.

[00:22:58] Speaker 02:
But that's not true, because the only evidence of record is the 397 patent itself, which explains why that technology was slow.

[00:23:07] Speaker 02:
the expert who explains, who confirms that, and confirms that that is not in VDM.

[00:23:15] Speaker 02:
And I'll go even further to point out that the director's brief is consistent with that as well.

[00:23:24] Speaker 02:
It refers on pages four and five.

[00:23:27] Speaker 02:
It says, in addition to runtime files, including a runtime engine,

[00:23:34] Speaker 02:
You know, they're generated to allow the webpage to be drawn using the information in the database, to view a completed webpage and internet's user's browser, calls a runtime engine which uses the database and other runtime files to generate the webpage.

[00:23:49] Speaker 02:
Using a runtime engine instead of static code allows for the dynamic generation of HTML code based on real time conditions.

[00:23:58] Speaker 02:
So even the director concedes that this technology in the 397 allowed for real-time display.

[00:24:06] Speaker 02:
Contrast that to VDM.

[00:24:07] Speaker 02:
VDM doesn't say real-time.

[00:24:09] Speaker 02:
VDM doesn't say immediately displayed.

[00:24:11] Speaker 02:
All VDM says is eventually or finally or after some unknown point in time.

[00:24:19] Speaker 02:
Again, that's not evidence of substantially contemporaneous.

[00:24:24] Speaker 02:
And given I'm running out of time, if the court has any further questions, I'll answer them.

[00:24:32] Speaker 04:
Thank you, counsel.

[00:24:33] Speaker 04:
The case is submitted.

[00:24:34] Speaker 04:
The consent of the court is substantially contemporaneously, but in due course.