[00:00:00] Speaker 04:
We have two argued cases this morning.

[00:00:02] Speaker 04:
The first is number 23, 1046, Juniper Networks Inc.

[00:00:07] Speaker 04:
versus Collect Transmission, LLC.

[00:00:09] Speaker 04:
Mr. Siegel.

[00:00:22] Speaker 03:
Good morning, and may it please the court.

[00:00:25] Speaker 03:
The board here made legal errors in both IPRs in assessing reasonable expectation of success.

[00:00:31] Speaker 03:
More particularly, the board found the petitioner's expert, Dr. Yang, didn't address reasonable expectation of success because her declaration didn't use those words or have a separate section of it.

[00:00:44] Speaker 03:
Beyond that, the board also declined to consider her opinions elsewhere in her declaration and deposition because it found them conclusory.

[00:00:53] Speaker 03:
Those findings contravene this court's precedent, and this court should reverse in both IPRs.

[00:00:59] Speaker 03:
There's no requirement of using particular wording to address reasonable expectation of success.

[00:01:06] Speaker 01:
Is there some word in the letter where the board actually says that, that you didn't use those magic words and therefore

[00:01:14] Speaker 03:
They don't say magic words, Your Honor, but certainly at A10 and 11 in the first IPR and A69 in the second IPR, the board states as a conclusion that Dr. Yang did not address reasonable expectation of success in her declaration.

[00:01:32] Speaker 03:
And that's incorrect.

[00:01:33] Speaker 00:
It goes on to address, it seems fairly extensively, what both experts said about reasonable expectation of success.

[00:01:40] Speaker 00:
That is, it doesn't look like we lost this IPR

[00:01:44] Speaker 00:
for failure to other magic words.

[00:01:47] Speaker 00:
Are you arguing that that was the basis on which you lost?

[00:01:50] Speaker 03:
Not arguing that solely, Your Honor, but I think that's instructive when you look at the case law that's applicable on this issue, when you look at the kinetic versus Samsung case, for example.

[00:01:59] Speaker 03:
And if you look particularly at the expert evidence there and compare that to the expert evidence offered by petitioners expert here, you can see that the evidence that she offered was far in excess of what was offered in that case.

[00:02:13] Speaker 04:
In that case, what concerns me is that it seems to me that both parties and perhaps the board here also don't really apply the correct standard for reasonable expectation of success.

[00:02:30] Speaker 04:
You talk about how easy or how difficult it is to combine the references.

[00:02:36] Speaker 04:
You talk about whether it would require undue experimentation.

[00:02:40] Speaker 04:
That all seems to be off point.

[00:02:42] Speaker 04:
As I understand reasonable expectation of success, it requires only two things.

[00:02:46] Speaker 04:
One, is it possible to make the combination?

[00:02:49] Speaker 04:
And two, does it produce the invention when you do make the combination?

[00:02:53] Speaker 04:
not whether it's difficult to do it, which is a motivation issue.

[00:02:58] Speaker 04:
What did your witnesses say about whether it was possible to make the combination, and did it produce the invention?

[00:03:08] Speaker 03:
Well, Your Honor, Dr. Yang talked about in her declaration for the 150 patent that the elements at issue were well-known and ubiquitous, and that the combination would lead to predictable results.

[00:03:21] Speaker 03:
She also talked about... What do predictable results mean?

[00:03:25] Speaker 04:
Did she say that predictable results means achieving the invention?

[00:03:29] Speaker 04:
I'm sorry, Your Honor.

[00:03:30] Speaker 04:
Did she say that predictable results means achieving the invention?

[00:03:35] Speaker 03:
Yes.

[00:03:36] Speaker 03:
She stated in her declaration... Where does she say that?

[00:03:39] Speaker 03:
She states that at... She talks about those issues at A110.

[00:03:46] Speaker 03:
Which volume?

[00:03:50] Speaker 03:
I believe there's one volume here on her.

[00:04:00] Speaker 03:
Yes, there she talks about the functions being well known and ubiquitous, particularly with respect to predictable results.

[00:04:09] Speaker 03:
She addresses that at 1-1-2-3, A-1-1-2-3 with respect to 1-1-2-3, 1-5-0 pattern.

[00:04:25] Speaker 03:
And also, again, at A1145.

[00:04:28] Speaker 03:
Where does she say this on 1123?

[00:04:30] Speaker 03:
Paragraph 84 on page 1123, she states that modifying Tokozaki's system, which is the base reference to provisioned VPLS, which is the element provided by the secondary reference, would have led to predictable results.

[00:04:44] Speaker 04:
What does predictable results mean?

[00:04:47] Speaker 03:
Where does she say predictable results means that it would have achieved the invention?

[00:04:54] Speaker 03:
She's referring to the language and the standard there from KSR, Your Honor, that combining these two elements, it would have worked.

[00:05:02] Speaker 03:
It would have achieved predictable results based on what one of ordinary skill in the art would have known.

[00:05:08] Speaker 03:
And the patents here, Your Honor, it's important to note the patents here discuss in their specifications that each of these elements, VPLS with respect to the 150 patent,

[00:05:20] Speaker 03:
And then synchronization with respect to the 465 patent were well known to one of ordinary skill in the art.

[00:05:26] Speaker 03:
Those functions were well known.

[00:05:29] Speaker 03:
That's important here, Your Honors.

[00:05:30] Speaker 03:
And if we go back to the kinetic case in terms of, I agree with Your Honor's statement before that the board didn't apply the right standard here.

[00:05:39] Speaker 03:
And the kinetic case is instructive on that.

[00:05:41] Speaker 03:
And in that case, the board and this court concluded that,

[00:05:47] Speaker 03:
the expert had reached the bar for showing reasonable expectation of success.

[00:05:52] Speaker 03:
That expert offered one paragraph in a declaration, 55 words, did not say reasonable expectation of success.

[00:06:01] Speaker 03:
It just identified the functions

[00:06:03] Speaker 03:
and stated that would have been simple and straightforward for one of ordinary skill in the arc to implement those functions.

[00:06:09] Speaker 03:
That's the only software case that either party has pointed to here, or the board pointed to.

[00:06:14] Speaker 04:
The board didn't do that.

[00:06:14] Speaker 04:
You've got to take the next step and say, you know, it's common to combine these things, or it's easy, but you've got to say that the combination achieves the invention.

[00:06:27] Speaker 01:
Well, you're right.

[00:06:28] Speaker 04:
I mean, isn't that correct?

[00:06:31] Speaker 03:
The expert didn't say that in the kinetic case, and it was found in that case by the board on this court that that testimony was not conclusory, and it was enough to show reasonable expectation of success.

[00:06:40] Speaker 03:
And this court's decision in that case cites one paragraph, paragraph 154 of that expert's declaration.

[00:06:48] Speaker 03:
It's at the joint appendix, page 812 in that case, case 22-1127.

[00:06:52] Speaker 03:
The expert doesn't say reasonable expectation of success.

[00:06:58] Speaker 03:
He just says it would have been straightforward,

[00:07:00] Speaker 03:
and the modifications would have been simple.

[00:07:03] Speaker 03:
And this court stated in that case that once the function to be performed by software is identified, writing code to achieve it is generally considered to be within the scale of one of ordinary skill in the art.

[00:07:16] Speaker 03:
And the court cited its FONAR decision from 1997 as support for that.

[00:07:22] Speaker 00:
You seem to be trying to persuade us that the board could only find that reasonable expectation of success was proven here, that it's not even disputable, that it's somehow unreasonable to credit the other expert and to find that you didn't meet your burden.

[00:07:39] Speaker 00:
Is that what you're trying to persuade us of?

[00:07:42] Speaker 03:
That's not my argument, Your Honor.

[00:07:43] Speaker 03:
The argument is the board concluded that

[00:07:46] Speaker 03:
petitioner's expert's testimony was conclusory, and essentially disregarded it.

[00:07:51] Speaker 00:
Isn't it for them to say whether it's conclusory?

[00:07:54] Speaker 03:
I'm sorry, Your Honor?

[00:07:54] Speaker 00:
Isn't it for them to say whether it's conclusory?

[00:07:57] Speaker 03:
Well, Your Honor, that decision is, you know, contradictory to the decision in kinetic, and the decision doesn't align with the other cases that the board cited.

[00:08:09] Speaker 00:
What's our standard of review of the board's determination that your expert was conclusory?

[00:08:16] Speaker 03:
uh... i'd say that it's a legal error that the board may their final standard in finding that the experts evidence was conclusory they have indecision that she didn't even she didn't make the process is showing a reasonable expectation of success they they disregarded that testimony the word should have considered that testimony and wagered against the evidence that the pattern provided so-so but your only testimony record is this would achieve predictable results right

[00:08:43] Speaker 03:
No, she went beyond that.

[00:08:44] Speaker 03:
Our expert also testified at deposition that making these modifications would have been minor and easy.

[00:08:51] Speaker 03:
That's irrelevant.

[00:08:52] Speaker 04:
That's not the question.

[00:08:55] Speaker 04:
It doesn't matter whether it's easy or difficult when you're talking about reasonable expectation of success.

[00:09:00] Speaker 04:
It's only a question of whether it's possible and whether making the combination would have produced the invention.

[00:09:07] Speaker 03:
well respectfully after that testimony she was saying that it would be possible and in fact in the four six five and i p r she did testify that there was a reasonable expectation of success in her deposition questioning from the other side she did identify in that particular i p r she also identified that we very straightforward and very simple to make these modifications just like the expert in kinetic identified and which this court found in the board found was not conclusory there

[00:09:36] Speaker 03:
I see that I'm at my time, Your Honors.

[00:09:38] Speaker 03:
I'm happy to answer further questions, but would like to take my time.

[00:09:45] Speaker 03:
Thank you.

[00:09:46] Speaker 04:
Mr. Stevens.

[00:10:13] Speaker 02:
Bring your honors, may it please the court.

[00:10:16] Speaker 04:
Did you agree that the right test is whether it's possible to make the combination and whether the combination would have achieved the invention?

[00:10:27] Speaker 02:
That would be the correct standard, Your Honor.

[00:10:30] Speaker 02:
I think the issue here, considering that standard, is what testimony did Juniper

[00:10:37] Speaker 02:
the party that bore the burden of proof provide on that.

[00:10:40] Speaker 02:
And so the correct transmission testimony, to the extent it doesn't go directly towards that, meets the juniper evidence, to the extent it was provided, in challenging that.

[00:10:54] Speaker 04:
And I think that... But did your experts say it wasn't possible to make the combination or that the combination wouldn't achieve the invention?

[00:11:02] Speaker 02:
There was testimony that it would not be successful.

[00:11:07] Speaker 04:
That would be a different testimony for two different patents.

[00:11:15] Speaker 04:
Yes.

[00:11:16] Speaker 02:
So in terms of success for the 465 patent, the key paragraphs

[00:11:31] Speaker 02:
appear at Appendix 7210, that's in Volume 2.

[00:11:37] Speaker 02:
What page was that?

[00:11:45] Speaker 02:
Appendix 7210.

[00:11:45] Speaker 02:
This is your expert.

[00:11:48] Speaker 02:
This is Dr. Echel, our expert's declaration provided with Hatton Owners Response.

[00:11:55] Speaker 02:
You have paragraphs 98 through 100 on this page.

[00:12:00] Speaker 02:
Where specifically does he say it's not possible?

[00:12:02] Speaker 02:
Well, in 99, paragraph 99 specifically, the first sentence, replacing forwarding tables in a system designed for flooding through VSRP-aware switches, would not be successful.

[00:12:16] Speaker 02:
He goes on to talk about the difficulties of implementing.

[00:12:19] Speaker 02:
And there, Your Honor, he's certainly countering the testimony, which is the extent of the evidence provided by Juniper's expert, that it would have been simple.

[00:12:28] Speaker 02:
So he meets that testimony with counters, which the board recognized.

[00:12:35] Speaker 02:
And so there's certainly no burden on the patent owner's part to go beyond that and set up other potential arguments that Juniper didn't make.

[00:12:46] Speaker 02:
So I think to the extent there's any failings as to the standard of reasonable expectation of success here, that would fall at Juniper's feet as the burden.

[00:12:59] Speaker 02:
I understand.

[00:12:59] Speaker 04:
Where's your testimony about the 150?

[00:13:03] Speaker 04:
The 150?

[00:13:07] Speaker 02:
That starts on Appendix 6117.

[00:13:15] Speaker 02:
at least a portion of it.

[00:13:22] Speaker 02:
So there was an issue with the numbering of paragraphs in Dr. Echols' declaration, so you'll notice on that page it

[00:13:30] Speaker 02:
It goes from paragraph 36 to 33, which the board labeled.

[00:13:36] Speaker 01:
Did you say 51?

[00:13:37] Speaker 02:
61, 17.

[00:13:39] Speaker 02:
Okay, which paragraph?

[00:13:42] Speaker 02:
So 33, which follows 36.

[00:13:44] Speaker 02:
So the board called that 33-2, just to help clarify things.

[00:13:51] Speaker 02:
So there, Dr. Echol discusses significant modifications and changes and goes on

[00:13:59] Speaker 02:
over several pages, they're also extending to 6122, Appendix 6122 in paragraph 54.

[00:14:09] Speaker 04:
I see him here saying it would be difficult.

[00:14:15] Speaker 04:
Where does he say it wouldn't be successful?

[00:14:19] Speaker 02:
Well, I think the issue here, Your Honor, is he is responding to the testimony provided by Juniper's declarant, Dr. Yang.

[00:14:29] Speaker 02:
And so he provides specific explanations and issues, as the board found, that call into question.

[00:14:36] Speaker 04:
The answer he doesn't cite, that it wouldn't be possible?

[00:14:39] Speaker 02:
I don't know that he uses those words on this patent.

[00:14:43] Speaker 02:
But again, Your Honor, correct transmission did not have the burden of proof on this.

[00:14:49] Speaker 02:
It didn't have to prove a negative that there was no reasonable expectation of success.

[00:14:54] Speaker 02:
And the board thoroughly went through

[00:14:57] Speaker 02:
You know, starting with the petition, and yes, the Board notes that there was no discussion of reasonable expectation in the petition, but they certainly don't stop there.

[00:15:04] Speaker 04:
They know... They don't stop there, but the problem is that they seem to go on and talk about whether it's easy, whether the modifications are minor, whether it would require undue experimentation, all of which seems to be beside the point.

[00:15:19] Speaker 02:
And I think the reason the Board does that, Your Honor, is because that was

[00:15:23] Speaker 02:
the extent of the testimony provided by Juniper.

[00:15:27] Speaker 02:
So the board deals with that testimony and finds that they didn't meet their burden.

[00:15:33] Speaker 02:
They didn't go off and speculate about how that

[00:15:38] Speaker 02:
could relate to whether it's possible.

[00:15:40] Speaker 02:
None of that was discussed by Juniper.

[00:15:43] Speaker 02:
So they meet the testimony provided by Juniper.

[00:15:46] Speaker 02:
They note the specific issues of Dr. Echol, the correct transmission expert, in challenging that testimony.

[00:15:57] Speaker 02:
And they determine that they did not meet their burden on reasonable expectation of success.

[00:16:02] Speaker 02:
And I think considering the standard of review here, substantial evidence, which just

[00:16:09] Speaker 02:
I found it instructive to look back at some of the ways that that standard is expressed, and the court is fully aware, I'm sure, but the possibility of drawing two inconsistent conclusions from the evidence does not prevent administrative agencies finding from being supported by substantial evidence.

[00:16:28] Speaker 02:
And here, the correct transmission certainly had no burden to prove a negative.

[00:16:34] Speaker 02:
They met the testimony.

[00:16:35] Speaker 02:
They challenged with specific reasoning.

[00:16:38] Speaker 02:
And one important point the board noted here is that in their reply, in Juniper's reply, there was no additional expert declaration.

[00:16:49] Speaker 02:
If it was so easy and simple, which is the testimony that was provided by Juniper's declarant, then certainly they would have been able to come back and show that.

[00:17:02] Speaker 02:
in a reply declaration, and that was not done.

[00:17:04] Speaker 02:
I can't speculate as to what the reasoning might have been for that, but those issues did not further develop.

[00:17:12] Speaker 02:
The board dealt with what was presented by Juniper, specific issues raised by Dr. Akle challenging that, and that's where it was left with a failure on the party with the burden of proof to show a reasonable expectation of success.

[00:17:28] Speaker 00:
Was it legal for the board to find Dr. Yang's analysis conclusory?

[00:17:34] Speaker 02:
No, Your Honor.

[00:17:35] Speaker 02:
Certainly not.

[00:17:37] Speaker 02:
So as Your Honor noted, Juniper is relying heavily on this kinetic case.

[00:17:44] Speaker 02:
It's a non-precedential case.

[00:17:46] Speaker 02:
It's very short.

[00:17:47] Speaker 02:
And what the court says in that case, which is entirely different than the case we have here,

[00:17:58] Speaker 02:
The court says at Westlaw page 2, just right at the very end of that decision, Keenetic has cited no evidence to the contrary.

[00:18:09] Speaker 02:
Instead, before the board and on appeal, it offers only attorney argument, alleging Dr. Abab's testimony is inadequate, but attorney argument is no substitute for evidence.

[00:18:20] Speaker 02:
In this case runner, we have evidence showing and calling into question the conclusory testimony of their declarant that it was simple and easy.

[00:18:30] Speaker 02:
As the board found, correct transmissions expert, Dr. Akel, raised specific issues.

[00:18:37] Speaker 02:
So we have conclusory testimony on one hand, specific issues raised, and then really no resolution of that.

[00:18:44] Speaker 02:
And that's where the board was left in determining

[00:18:46] Speaker 02:
that they failed to meet their burden of proof.

[00:18:47] Speaker 02:
So to call that a legal error based on an unprecedented case where there was no contrary evidence, I think stretches the argument a little too far, Your Honor.

[00:19:02] Speaker 02:
There's not a legal error here.

[00:19:03] Speaker 02:
And it's really substantial evidence.

[00:19:04] Speaker 02:
And the board was certainly in the best position to look at that and say, OK, you said it would be simple and easy.

[00:19:14] Speaker 04:
But that's irrelevant, right?

[00:19:16] Speaker 02:
Again, your honor, that was the testimony.

[00:19:19] Speaker 02:
It might start you down the path of is it possible and having a reasonable expectation of success, but that is the testimony of Juniper.

[00:19:30] Speaker 02:
To the extent that that's where it left off, that would be, again, fall at Juniper's feet as the party with the burden of Peru.

[00:19:37] Speaker 01:
So is it legal therefore for the board to base reasonable expectation of success on the degree of difficulty?

[00:19:45] Speaker 01:
I don't think that's what they did.

[00:19:47] Speaker 01:
No, but I'm asking you, would it be legal error if they did it?

[00:19:50] Speaker 02:
I mean, it depends on what they did with it.

[00:19:53] Speaker 02:
I mean, if, in hypothetical, the board looked and said, you know, let's say there was evidence about not being able to, you know, it's not possible to achieve the invention.

[00:20:13] Speaker 02:
and the board looked at other testimony about the challenge of it, that could be potentially a legal error.

[00:20:21] Speaker 02:
That is certainly not this case where the extent of the testimony was from Juniper, from the petitioner.

[00:20:29] Speaker 02:
It would be simple and easy.

[00:20:30] Speaker 02:
I mean, that's the extent of the testimony, and Katnar and the board

[00:20:37] Speaker 02:
meet that testimony where it is and challenge it until it's not true.

[00:20:42] Speaker 02:
But that doesn't suggest that the board wouldn't have accepted sufficient evidence and testimony for the standard of reasonable expectation of success.

[00:20:54] Speaker 02:
That's all we had to work with.

[00:20:58] Speaker 02:
And the board found it insufficient.

[00:21:00] Speaker 02:
And that certainly should be affirmed on substantial evidence review.

[00:21:22] Speaker 02:
I think with that, Your Honor, I will conclude unless there are any more questions.

[00:21:29] Speaker 02:
OK, thank you.

[00:21:37] Speaker 03:
Your Honor, to address

[00:21:50] Speaker 03:
One of the questions to patent owner, their expert did not say that these combinations would be impossible here.

[00:21:58] Speaker 03:
In particular, for the 150 patent, Dr. Akle stated that it would be challenging.

[00:22:10] Speaker 03:
He never says that the combination wouldn't work or that it would be unpredictable.

[00:22:15] Speaker 03:
He just says that it wouldn't automatically work together.

[00:22:18] Speaker 03:
And that's what he says at A6117.

[00:22:21] Speaker 03:
1820 and 22.

[00:22:23] Speaker 03:
For the 465 patent, he says, yes, this will be complicated.

[00:22:28] Speaker 03:
But if you look at the section in the appendix that Patener referred to here at 7210, he's focused on bodily incorporating the system, excuse me, the element

[00:22:48] Speaker 03:
from the secondary reference into the particular system for the primary reference there.

[00:22:56] Speaker 03:
And in paragraph 99, he states that it would not be a simple implementation, but instead require a complete redesign of the purpose of the quote system.

[00:23:05] Speaker 03:
He doesn't say it's impossible.

[00:23:07] Speaker 03:
He doesn't say it wouldn't work.

[00:23:09] Speaker 03:
He kind of walks up to that line.

[00:23:10] Speaker 03:
It would not be successful.

[00:23:12] Speaker 03:
Right.

[00:23:13] Speaker 03:
But your honor, again, he's looking at it in the wrong way, and the board did too.

[00:23:16] Speaker 03:
in terms of focusing on bodily incorporating these two systems into one combination, whereas we're talking about obviousness here, and the combination is the teachings of both of these systems.

[00:23:31] Speaker 04:
Okay, but putting that aside, the burden is on you to produce testimony about a reasonable expectation, and I'm having difficulty seeing where you did that.

[00:23:42] Speaker 04:
understood you're not going to have to do it in the exact words.

[00:23:46] Speaker 04:
It would be possible to make the combination.

[00:23:51] Speaker 04:
If you did make the combination, you'd get the invention.

[00:23:55] Speaker 04:
But I don't see that testimony.

[00:23:57] Speaker 04:
Where is it?

[00:23:58] Speaker 03:
Well, Your Honor, we're flowing back to A 1123 and paragraph 84.

[00:24:06] Speaker 03:
The second sentence of that paragraph, after Dr. Yang

[00:24:11] Speaker 03:
states that modifying Tokozaki's system to provision of EPLS would have led to predictable results.

[00:24:18] Speaker 03:
She also states that provisioning of EPLS on Tokozaki's system is nothing more than an obvious implementation to a person of or near skill in the art based on Boyd's teachings.

[00:24:30] Speaker 03:
She says this several other places in her declaration where she talks about predictable results, for example, also in paragraph 118,

[00:24:41] Speaker 03:
on page A1145.

[00:24:44] Speaker 03:
She states there that provisioning connection termination points as virtual users of the VPLS on Togazaki system is nothing more than an obvious implementation to... This is the bottom line.

[00:24:55] Speaker 00:
Your expert repeatedly said these combinations are simple, straightforward, obvious, and the expert met that evidence at that level and said, no, they're not.

[00:25:08] Speaker 00:
They're not simple.

[00:25:09] Speaker 00:
They're not straightforward.

[00:25:10] Speaker 00:
it's not an obvious implementation.

[00:25:12] Speaker 00:
Here are some of the challenges that would be involved, and the board credited their expert.

[00:25:16] Speaker 00:
Isn't this case as simple as that?

[00:25:18] Speaker 03:
I'm with you to the very end, Your Honor.

[00:25:21] Speaker 03:
If you look at the board's decisions, again, at A, 10 and 11, and A,

[00:25:28] Speaker 03:
69, the board, it discounts our expert's testimony.

[00:25:33] Speaker 03:
It says it's conclusory.

[00:25:34] Speaker 00:
But they're free to discount it.

[00:25:36] Speaker 00:
I mean, I think you give it away when you admit, as you have to.

[00:25:38] Speaker 00:
There is an A69.

[00:25:41] Speaker 00:
It's not, our opinion doesn't end at A12 after they point out your expert is nearly conclusory.

[00:25:47] Speaker 03:
Sure, Your Honor.

[00:25:48] Speaker 03:
But again, they're applying the wrong standard to determine that it's conclusory and that they can just discard it.

[00:25:54] Speaker 03:
That's the point here.

[00:25:56] Speaker 03:
referring back to the kinetic case, which again is the only case involving a software patent here.

[00:26:01] Speaker 03:
Only case we're talking about an expert, excuse me, one of ordinary skill in the art writing code to make a modification to another piece of software.

[00:26:12] Speaker 03:
In that case, again, the board in this court held that it was sufficient what the expert said there, that it was simple and straightforward.

[00:26:19] Speaker 03:
That's all he said there.

[00:26:20] Speaker 03:
That met

[00:26:22] Speaker 03:
the burden there.

[00:26:23] Speaker 03:
It should have met the burden here as well, and the board erred legally in discarding that expert testimony.

[00:26:30] Speaker 03:
Beyond that, Your Honor, we agree that there was no contrary evidence on the other side in the kinetic case.

[00:26:41] Speaker 03:
It states that right in the opinion.

[00:26:44] Speaker 03:
But again, what we're asking for is that the board to consider

[00:26:49] Speaker 03:
the expert's evidence on our side and weigh that against the expert's evidence on the patent owner's side.

[00:26:54] Speaker 01:
And you argue that the board dismissed your expert's evidence.

[00:26:59] Speaker 01:
But it just seems to me that the board actually did consider the evidence and weighed it and found it to be unpersuasive.

[00:27:08] Speaker 01:
The board found your evidence, the Crawford evidence, as unpersuasive.

[00:27:15] Speaker 03:
Well, what I'm pointing to, Your Honor, is the courts and the board's decision.

[00:27:18] Speaker 03:
They quote several cases where it says it's not required to credit a party's expert evidence, and it's not required to recognize conclusory expert testimony.

[00:27:26] Speaker 03:
And again, based on the kinetic case, the only software case that either side's provided here, that evidence our expert provided was not conclusory in the software context.

[00:27:37] Speaker 03:
Again, the board and this court found that the expert simply saying it was simple and straightforward was sufficient

[00:27:43] Speaker 03:
The court's opinion says it was sufficient to show reasonable expectations of success in that case.

[00:27:49] Speaker 03:
So with that, Your Honors, I'm happy to answer any further questions, but would otherwise ask the court to reverse and remand in both IPRs.

[00:27:57] Speaker 03:
OK.

[00:27:57] Speaker 03:
Thank you, Mr. C. Thank you, Mr. C.