[00:00:00] Speaker 03: Our final case for the day is Fauci versus Atlassian, number 23-21-07. [00:00:07] Speaker 03: Counselor Miyoki? [00:00:13] Speaker 02: Miyoki, Your Honor. [00:00:16] Speaker 02: Miyoki. [00:00:17] Speaker 03: Okay, you have five minutes of rebuttal, correct? [00:00:23] Speaker 02: That is correct, Your Honor. [00:00:26] Speaker 02: May I please the court? [00:00:28] Speaker 02: Again, my name is Joe Miyake. [00:00:29] Speaker 02: I represent Appellant Fogie Ink. [00:00:32] Speaker 02: This court should reverse the board's final written decision for at least two separate reasons. [00:00:37] Speaker 02: First, the board asserted that Atlassian advanced a single, unaltered embodiment argument to satisfy the reasonable expectation of success component for obviousness. [00:00:48] Speaker 02: This was not so. [00:00:51] Speaker 02: the board applied an incorrect claim construction for insert the rich media data into the message while maintaining text flow. [00:01:00] Speaker 02: Stepping back, the board incorrectly asserted that Atlassian advanced a single unaltered embodiment argument to satisfy the reasonable expectation of success requirement for obviousness. [00:01:12] Speaker 02: This single unaltered embodiment argument was never raised by Atlassian in its IPR petition. [00:01:19] Speaker 02: The argument was never raised by Atlassian in its IPR reply. [00:01:23] Speaker 02: The argument was never made or mentioned by Atlassian even during the whole argument. [00:01:29] Speaker 02: Neither Atlassian nor the board identified where in the petition the supposed single unaltered embodiment can be found. [00:01:37] Speaker 02: The argument is simply not there. [00:01:40] Speaker 02: This is not a case of reviewing the board's interpretation of a petition argument under the abusive discretion standard. [00:01:48] Speaker 02: The board cannot interpret an argument that Atlassian never made. [00:01:52] Speaker 02: Instead, the board must base its decision on arguments that were advanced by Atlassian. [00:01:58] Speaker 02: The board is not free to adopt arguments for petitioners that were not raised. [00:02:03] Speaker 02: Instead, here we have an argument created by the board on behalf of Atlassian for the very first time in its final written decision. [00:02:12] Speaker 02: This court reviews de novo whether the board improperly relied upon new arguments. [00:02:21] Speaker 02: That is exactly what happened here. [00:02:24] Speaker 00: So in this case, counsel, let's assume that we believe that Gura discloses a single embodiment. [00:02:33] Speaker 00: In that circumstance, what is your best case law support for your argument that there needs to be a discussion of reasonable expectation of success? [00:02:42] Speaker 02: Certainly. [00:02:43] Speaker 02: This comes right into this court's decision of Inrei Stepin that even when an obviousness position is based upon one reference, a reasonable expectation of success is still a requirement when multiple embodiments are being combined. [00:03:02] Speaker 02: at a minimum. [00:03:03] Speaker 00: Well, I just assume it's a single embodiment, though. [00:03:07] Speaker 00: Oh, I'm sorry. [00:03:08] Speaker 00: That was inherent in my question. [00:03:09] Speaker 02: Oh, certainly. [00:03:09] Speaker 02: I apologize. [00:03:10] Speaker 00: So with that assumption, can you answer the question? [00:03:13] Speaker 02: Sure. [00:03:13] Speaker 02: I mean, I guess with that assumption, which we absolutely disagree would be the case here, if a single unaltered embodiment [00:03:23] Speaker 02: were involved, RES probably isn't a requirement, although not absolutely explicitly clear from this case, this court's precedent. [00:03:31] Speaker 02: At about three embodiments. [00:03:33] Speaker 02: Oh, if three embodiments were being combined from a single reference, [00:03:39] Speaker 02: It fell squarely within Inrei Stepin, where reasonable expectation of success is absolutely a requirement to make out the prima facie case. [00:03:49] Speaker 02: And in footnote one of Inrei Stepin, this court explicitly rejected the dissent's position that reasonable expectation of success was not required. [00:04:09] Speaker 02: So turning to the second fundamental ground for reversal, the board incorrectly interpreted insert the rich media data into the message while maintaining text flow. [00:04:21] Speaker 02: Under proper claim construction analysis, the board would have consulted the file history and the entire specification of the 1.49 patent. [00:04:30] Speaker 02: The board did not do that here. [00:04:32] Speaker 02: Turning to the file history, when this claim language was added by amendment, FOGIE made the meaning clear and distinguished specifically the Nagel reference, stating, and I quote, Nagel does not eliminate the need to stop typing the message. [00:04:50] Speaker 02: This is found in appendix 1153. [00:04:52] Speaker 02: In other words, while maintaining text flow means while typing continues. [00:05:00] Speaker 02: The board has incorrectly framed the issue here [00:05:02] Speaker 02: in terms of obviating the need to attach images. [00:05:07] Speaker 02: The Nagel reference I just mentioned uses a pop-up menu of images selected for insertion. [00:05:14] Speaker 00: What is your argument on whether Gura would disclose while maintaining text flow? [00:05:21] Speaker 02: Gura does not disclose while maintaining text flow because nothing in Gura discloses [00:05:29] Speaker 02: inserting the image or the rich media data while the user composes or types the message. [00:05:37] Speaker 02: And if we take a step back, maybe coming up to a higher level, when reading the 149 patent, [00:05:47] Speaker 02: in context of what Gura is doing. [00:05:50] Speaker 02: I'll start with Gura. [00:05:52] Speaker 02: Gura is explicitly stating that Gura pertains to SMS or short message syntax and MMS texting, conventional text messaging that's been around for a long time in mobile phone and smart phone technology. [00:06:10] Speaker 02: We come to the invention disclosed and claimed in Fogies [00:06:13] Speaker 02: 149 patent, the patent right out of the gate says that this invention, as claimed, is an improvement over conventional SMS and MMS texting for the exact reason that in conventional MMS and SMS, users cannot insert a custom image while composing the message. [00:06:39] Speaker 00: Did you make this argument to the board that you're making right now? [00:06:42] Speaker 02: I believe we did, yes. [00:06:44] Speaker 00: Where did you make that argument? [00:06:45] Speaker 00: Do you remember the page site or something you reported to? [00:06:48] Speaker 02: It would have been right in our... Bear with me for one moment. [00:07:38] Speaker 02: You can give it to me. [00:07:41] Speaker 02: If you look at appendix 207, where we again start walking through the 149 patents discussion of the claimed media messaging platform, I believe in here, we contrast in this portion with SMS and MMS. [00:08:03] Speaker 03: Does Google disclose every element of the claimed invention? [00:08:07] Speaker 02: No. [00:08:09] Speaker 02: At a minimum, HUA does not disclose the while-maintaining text flow limitation nor the single message limitation. [00:08:28] Speaker 02: So if I step back at the outset, when issuing its claim construction for while-maintaining text flow, [00:08:37] Speaker 02: The board never made any reference or addressed this discussion in the file history, the intrinsic record, the distinguishment over the Nagle reference when the claim limitation of while maintaining text flow was inserted. [00:08:56] Speaker 02: Very notable here because this was the only claim amendment made. [00:09:02] Speaker 02: In addition to that, the board likewise never addressed specification excerpts referencing insertion that doesn't interrupt the user's texting flow or within the texting flow. [00:09:14] Speaker 02: This is found specifically in the 149 patent, column 1, line 44. [00:09:20] Speaker 02: column 2, line 15, column 4, line 50. [00:09:23] Speaker 02: Nor did the board look at the discussion of insertion within the flow of the word-by-word writing process, columns 2, lines 1 and 2, insertion of the flow of typing found at column 2, line 21, and also insertion described [00:09:44] Speaker 02: as immediate or instant, found at column two, line 13, column four, line 65. [00:09:51] Speaker 02: All of these specification portions are one, consistent with the file history, and two, completely supported by FOGIE's construction. [00:10:01] Speaker 02: The board ignored all of this and instead interpreted figure 14 directly contrary to the specification. [00:10:09] Speaker 02: If we look at the 149 patent, the specification describes figure 14 in just one sentence, the only place where figure 14 is addressed in the specification. [00:10:21] Speaker 02: And it states, and I quote, referring to figure 14, an example of the plain text message and subsequent conversion of the parsed and rendered message incorporating photocons is depicted. [00:10:35] Speaker 02: that's found in appendix 42, column 9, lines 29 to 32. [00:10:39] Speaker 02: The specification thus states that figure 14 shows a singular message having plural images. [00:10:48] Speaker 02: In its final written decision, the board rewrote this portion of the 149 specification and stated that figure 14 showed separate messages plural. [00:10:59] Speaker 02: And this is very, very apparent if you turn to [00:11:03] Speaker 02: Appendix 4, or Appendix Page 4, where the board states, Figure 14 depends, and it starts quoting from the 149 patent, plain text, messages, plural. [00:11:16] Speaker 02: Huge point here, the board adds the S in brackets, changing message from singular to plural. [00:11:24] Speaker 02: I'll continue. [00:11:26] Speaker 02: Plain text, messages plural, and subsequent conversion of the parsed and rendered messages. [00:11:33] Speaker 02: Again, the board changes the explicit text of the 149 specification from a singular message to plural messages, jumps right out through its use of the brackets with the S, incorporating photocons. [00:11:47] Speaker 02: Again, I encourage the court to look at Appendix 4, where the board rewrote the description of Figure 14 through these use of the bracketed S's to change a single message into plural messages. [00:12:00] Speaker 02: The board then relies upon only a portion of Figure 14 to continue this revision and misinterpretation of the specification, again stating at Appendix 8, [00:12:13] Speaker 02: Figure 14, and again, keep in mind they're showing only a portion of Figure 14. [00:12:18] Speaker 02: Figure 14 above shows the entire plain text message completed as seen on the left before the system inserts a rich media image as seen on the right. [00:12:30] Speaker 03: Appendix A. Counselor, you're getting into your rebuttal time. [00:12:37] Speaker 03: You can continue. [00:12:38] Speaker 02: I will continue for just another moment. [00:12:42] Speaker 02: Maybe two moments. [00:12:43] Speaker 02: But the board used this rewritten and distorted interpretation of the 149 specification, figure 14, to permit after the fact insertion of rich media data [00:12:57] Speaker 02: to conclude that Fauci's construction was wrong. [00:13:00] Speaker 02: Nothing in the specification supports use of Figure 14 to allow after-the-fact insertion. [00:13:07] Speaker 02: The board cited nothing that supports its incorrect construction to allow after-the-fact insertion. [00:13:14] Speaker 02: And stepping back, as this court is well aware, I note that interpreting Figure 14, which is part of the intrinsic evidence, constitutes claim construction [00:13:23] Speaker 02: and is reviewed de novo. [00:13:24] Speaker 02: The board's construction violated several canons of clean construction and is erroneous. [00:13:30] Speaker 02: Foge's construction is correct and should be adopted. [00:13:32] Speaker 02: Thank you. [00:13:41] Speaker 03: Mr. Day. [00:13:44] Speaker 04: Good morning, Your Honors, and may it please the Court. [00:13:46] Speaker 04: James Day on behalf of Appellee, Atlassian US Incorporated, [00:13:50] Speaker 04: Let me start with the second issue, the claim construction issue. [00:13:54] Speaker 04: One of the things that my friend didn't mention and that the board focused on is the actual claim language in the 149 patent that frankly dictates the outcome on this construction. [00:14:05] Speaker 04: FOGIE argued is while maintaining text flow means that the media is inserted while the user is composing the original message. [00:14:15] Speaker 04: That's contradicted by the claim language as the court [00:14:18] Speaker 04: concluded, or sorry, as the board concluded below. [00:14:20] Speaker 04: And what I'd like to do is make sure that this piece is clear, because the claim language is the most important evidence for claim construction. [00:14:29] Speaker 04: So if you look at appendix 43, we can see claim one of the 149 patent. [00:14:35] Speaker 04: And it's composed of a couple of things. [00:14:36] Speaker 04: It's the communications system. [00:14:39] Speaker 04: There's a first user device. [00:14:41] Speaker 04: That's a cell phone, say. [00:14:43] Speaker 04: And there's a second user device. [00:14:44] Speaker 04: That's the cell phone that's going to receive the message. [00:14:48] Speaker 04: And then there's this what's called a messaging cloud. [00:14:52] Speaker 04: So what the 149 patent talks about is you put this messaging cloud out in the cloud, in the internet, in the network between the two devices. [00:15:04] Speaker 04: And then that messaging cloud has something, go down to line 48, it has something called a messaging service. [00:15:13] Speaker 04: And it's configured to perform a few steps. [00:15:15] Speaker 04: So this is the messaging service. [00:15:17] Speaker 04: It's sitting out in the cloud. [00:15:19] Speaker 04: The first thing that it does is it receives a message. [00:15:23] Speaker 04: That message contains a rich media data request. [00:15:27] Speaker 04: That's a text-based tag or a shortcut. [00:15:31] Speaker 04: That might be a colon and a right paren for a smiley face. [00:15:34] Speaker 04: It's text-based. [00:15:36] Speaker 04: It's a request for rich media data. [00:15:39] Speaker 04: Then the messaging system retrieves from a database the image [00:15:43] Speaker 04: and inserts it into the message while maintaining text flow. [00:15:47] Speaker 04: What that means is it inserts it into the message at the point where that rich media data request was in the original text. [00:15:57] Speaker 04: And then the last thing that it does is it presents it to the second user, so it sends it on to its destination. [00:16:05] Speaker 04: That's what the claim says. [00:16:07] Speaker 04: As the board found, the claim language contradicts the notion [00:16:12] Speaker 04: that the media is inserted while the first user is typing the original text message. [00:16:18] Speaker 01: What would be your definition of the phrase, while maintaining text flow? [00:16:25] Speaker 04: Well, I agree with the board, Your Honor, where it said, at the bottom of appendix eight and going on to nine, the board said, we agree with petitioner. [00:16:41] Speaker 04: that the ordinary customary meaning of the phrase while maintaining text flow reads on automatically replacing a character string with an image located where the characters were typed in the message. [00:16:57] Speaker 01: So that reads to me like a conclusion rather than an explanation of how those words mean something. [00:17:07] Speaker 04: While maintaining text flow means that you don't put the image at the end of the text, it's not an attachment to the text, it gets inserted where the characters were. [00:17:21] Speaker 04: And it gets inserted automatically, so you don't have to stop typing. [00:17:25] Speaker 04: you're typing your message, it includes this emoticon, tag, shortcut, whatever you want to call it. [00:17:31] Speaker 01: But it can happen in the cloud after the typing is done. [00:17:34] Speaker 04: But it does. [00:17:35] Speaker 04: That's the only way. [00:17:37] Speaker 01: The claim says it happens. [00:17:38] Speaker 04: The claim says it happens in the cloud. [00:17:41] Speaker 01: Are there other uses in the spec of the word flow? [00:17:48] Speaker 04: Well, Your Honor, I guess let me get on to a second point. [00:17:51] Speaker 01: It's a slightly odd expression. [00:17:53] Speaker 01: It feels temporal. [00:17:55] Speaker 01: And you're not saying it's temporal. [00:17:56] Speaker 01: You're saying it's sort of spatial in the lineup of the characters. [00:18:01] Speaker 04: It's not temporal. [00:18:02] Speaker 04: It's as the board found. [00:18:04] Speaker 04: It's automatically inserting the text or the image into the text message where the request for rich media data appears. [00:18:18] Speaker 04: That's clear. [00:18:19] Speaker 04: What happened in the file history is the applicants distinguished NAGLE because in NAGLE you'd have to stop typing and go to a menu in order to insert instead of continuing to type. [00:18:35] Speaker 04: What the patent talks about over and over again is that [00:18:39] Speaker 04: The images are inserted without the need to attach a file to the message. [00:18:44] Speaker 04: That's what we're talking about. [00:18:46] Speaker 00: Well, let me, I want to focus. [00:18:47] Speaker 00: The term language amended from without interruption to while maintaining a text file. [00:18:52] Speaker 00: Right. [00:18:52] Speaker 00: And with that amendment in mind, how do you then support up your proposed interpretation of while maintaining a text file? [00:19:01] Speaker 04: If we want to talk about file history, what happened is first, the applicants amended the claim to say, [00:19:08] Speaker 04: without interrupting. [00:19:09] Speaker 04: And the examiner said, sorry, that's indefinite. [00:19:14] Speaker 04: And so the applicants made a single change to address the indefiniteness argument and said instead, they changed the words to be while maintaining text flow. [00:19:24] Speaker 04: So presumably, they thought it meant the same thing. [00:19:28] Speaker 04: And then if you go to appendix 1153, [00:19:37] Speaker 04: Well, 0154, they say, claims 112 and 17 have been amended to overcome the indefinite misrejection. [00:19:46] Speaker 04: If you look a few pages earlier, there's only one amendment. [00:19:49] Speaker 04: So what they did is they replaced one phrase with another in order to make it definite, not to change the scope. [00:19:57] Speaker 04: And then on page 1153, they talk about NAGLE. [00:20:01] Speaker 04: And they distinguish NAGLE. [00:20:03] Speaker 04: First by saying, Nagel does not eliminate the need to stop typing the message. [00:20:07] Speaker 04: So in Nagel, you would be typing along, and you have to stop and open a separate window. [00:20:15] Speaker 04: You open a separate menu to select something to insert. [00:20:18] Speaker 04: They're saying, that's different. [00:20:20] Speaker 04: Our invention is you just keep typing until you're done, and then you send it off to the cloud for insertion of the media. [00:20:26] Speaker 04: And we know that's right, because [00:20:29] Speaker 04: uh... the next sentence this is on page one one five three they say may go requires detecting gesture twenty that's a hand movement for example that generates additional screens so you're typing away you do this hand movement it brings up an additional screen you have to go to that to select for example a location et cetera then the next thing the applicants say is there's a quote from the specification where they say [00:20:58] Speaker 04: The invention's different because it allows mobile and tablet users to seamlessly integrate text, et cetera, and then at the bottom of the page it says, without having to interrupt the mobile user's texting flow, skipping the laborious step of attaching such rich media data into a mobile user's device. [00:21:22] Speaker 04: So that's at the bottom of 1153. [00:21:26] Speaker 04: and then the first two lines of 1154. [00:21:29] Speaker 04: So I would like to make, if I may, go back to the specification. [00:21:36] Speaker 01: Can I just, one thing, I just caught my ear. [00:21:40] Speaker 01: You said that the [00:21:45] Speaker 01: First amendment that without interrupting tax flow was met with a rejection by indefiniteness? [00:21:53] Speaker 01: That's correct, Your Honor. [00:21:54] Speaker 01: I guess I'm looking at 1103. [00:21:57] Speaker 01: Isn't that a rejection in part on the basis of Nagel? [00:22:02] Speaker 01: An obviousness rejection? [00:22:04] Speaker 01: And I'm just confused about your point about indefiniteness. [00:22:08] Speaker 01: Or maybe I'm looking at the wrong thing. [00:22:10] Speaker 04: What I'm pointing to, Your Honor, if I was walking through this, there was an amendment [00:22:15] Speaker 04: at 1080 that adds without interrupting text flow. [00:22:22] Speaker 04: There's a rejection at 1099. [00:22:28] Speaker 04: On 1101, at the top of the page, it says claims 112 and 17 that recite without interrupting text flow. [00:22:42] Speaker 04: The limitation renders the claim indefinite. [00:22:47] Speaker 04: Then when we get to 1146, that's where there's an amendment to change that language to while maintaining text 12, presumably meaning the same thing, but clarifying what they meant. [00:23:00] Speaker 04: 1152 says we made an amendment to address that rejection. [00:23:07] Speaker 04: 1153 is where he distinguishes. [00:23:11] Speaker 01: I'm sorry. [00:23:12] Speaker 01: I'm taking your time. [00:23:13] Speaker 01: But I'm back at 1101. [00:23:16] Speaker 01: right at the very top of the page examiner's point number six and claim one twelve and seven limitation recites without interrupting text flow that's indefinite but then the examiner continues and the examiner continues this whole subsection on one oh three rejections and now claims one through five eight twelve through twenty which includes everything the one twelve and seventeen [00:23:44] Speaker 01: Osterman, now back to 1103, Osterman does not explicitly disclose the without interrupting text flow. [00:23:51] Speaker 01: However, Nagel does. [00:23:53] Speaker 04: Right. [00:23:54] Speaker 04: And so what happened is there's this rejection based on Nagel, but also the indefiniteness rejection based on the words not interrupting text flow. [00:24:03] Speaker 04: So in the next response, the applicant said, OK, let's change the words in the claim to address this indefiniteness issue. [00:24:12] Speaker 04: And now let me explain to you why NAGLE doesn't. [00:24:16] Speaker 04: And they actually repeat, does not interrupt the text flow. [00:24:19] Speaker 04: If you look at the argument, they use the wrong language, which suggests to me they thought the language meant the same thing. [00:24:27] Speaker 04: The point, though, is NAGLE does not disclose, according to the applicants, what the claim says, because in NAGLE you have to open a separate window. [00:24:37] Speaker 04: You can't just keep typing and then send your message off. [00:24:41] Speaker 04: So I think it's important to make a point that I want to get to on this, Your Honor. [00:24:47] Speaker 04: And that is in the reply brief, in the gray brief, there's this notion that it would be absurd to assume that the message is composed and the composer doesn't see the image that's going to be put in. [00:25:03] Speaker 04: But that's exactly what this invention is talking about. [00:25:05] Speaker 04: As I said, the claim language tells us that. [00:25:08] Speaker 04: claim language says you send this message, all text based up to the cloud. [00:25:13] Speaker 04: But the specification says the very same thing, and I think it's important to get to this. [00:25:18] Speaker 04: If we look at column four, line 29, there's this discussion of an MMP, a media messaging platform. [00:25:28] Speaker 04: It can send communications in these two different modes. [00:25:31] Speaker 04: One is a message, one is a text. [00:25:34] Speaker 04: It then says, [00:25:35] Speaker 04: A message can be a HTML string, which is constructed by the sender using HTML format. [00:25:44] Speaker 04: That's text format. [00:25:47] Speaker 04: Receivers, so the person who receives it, will see them in traditional rich web format. [00:25:53] Speaker 04: The message, when it arrives at the receiver's environment, will be properly rendered by the web browser [00:26:00] Speaker 04: Et cetera. [00:26:01] Speaker 04: So it's a text that gets sent, and then the recipient sees the enhanced message. [00:26:07] Speaker 00: Let me ask you two questions before your time runs out. [00:26:09] Speaker 00: First question is, what is your response to opposing counsel saying that Gerard does not disclose the two limitations that we've been talking about, the message one and the while maintaining text flow? [00:26:22] Speaker 00: That's the first question. [00:26:23] Speaker 00: The second question I want you to get to is, [00:26:27] Speaker 00: I'm curious about on more of the reasonable expectation of success sort of related point. [00:26:32] Speaker 00: Why wasn't there like a 102? [00:26:34] Speaker 00: Why wasn't there any anticipation argument made? [00:26:37] Speaker 00: And why was it also just strictly 103? [00:26:40] Speaker 04: Let me start with that, Your Honor. [00:26:42] Speaker 04: I mean, this was a strategic decision made at a point where we did not have claim constructions in the district court case. [00:26:49] Speaker 04: So we did not know how the plaintiff was going to construe. [00:26:53] Speaker 04: Claim one in particular actually has a lot of confusing aspects to it. [00:26:57] Speaker 04: It uses a term called semantic model that was added through an examiner's amendment at the very end. [00:27:04] Speaker 04: It's not defined. [00:27:06] Speaker 04: Specification uses the term, but really doesn't explain what it is. [00:27:10] Speaker 04: There's also a statement that says the database is the MMP, which is a confusing statement that we thought under 102 might be [00:27:20] Speaker 04: subject to arguments not really based on the substance, but that might pose problems under 102. [00:27:27] Speaker 04: It went with 103 because it's a little more flexible. [00:27:31] Speaker 04: We thought any distinction that they might draw between the semantic model in the 149 pattern and what we pointed to in GERA would be an obvious distinction. [00:27:42] Speaker 04: It turns out they did not point out any distinction. [00:27:46] Speaker 04: In hindsight, at this point, having seen the distinctions the plaintiff tried to draw, we know Gura actually discloses every limitation and also anticipates. [00:27:58] Speaker 04: So that piece, the response on the other is, if you look at the board's construction of while maintaining text flow, it's based on the claim language, your honor. [00:28:09] Speaker 04: It does not mean while the user is composing the message. [00:28:13] Speaker 04: There's no explanation in this patent of how that could happen. [00:28:17] Speaker 04: The claim language would not permit it. [00:28:18] Speaker 04: The board found appropriately that what it means is the images are automatically inserted in line in the text, as I described, when they're delivered. [00:28:30] Speaker 04: That's what the claim language says. [00:28:32] Speaker 04: Gura does exactly that. [00:28:34] Speaker 04: There's no dispute on that point. [00:28:36] Speaker 04: Under the board's correct construction of while maintaining text flow, there is no dispute that Gura discloses. [00:28:44] Speaker 04: On the second claim construction, [00:28:46] Speaker 04: issue. [00:28:46] Speaker 04: I don't actually think it's a claim construction, this one versus two messages. [00:28:52] Speaker 04: It's just, does Gura do what the claim language says? [00:28:56] Speaker 04: And Gura does exactly what the claim language says. [00:28:59] Speaker 04: If you look, it's actually the same language I pointed you to before. [00:29:02] Speaker 04: That messaging service that's sitting out in the cloud, I'm looking at Appendix 43, [00:29:11] Speaker 04: And if you go down to line 48, again, there's this messaging service. [00:29:17] Speaker 04: Again, it's sitting out in the cloud. [00:29:19] Speaker 04: And the first thing that happens out in the cloud is it receives a message, the message, including a rich media data request. [00:29:28] Speaker 04: It receives a text-based message, and it has a request to insert rich media. [00:29:33] Speaker 04: It refers to that as the message. [00:29:36] Speaker 04: The next thing it does is it retrieves the image or the rich media data and inserts it into the message. [00:29:44] Speaker 04: And then it sends the message to the recipient. [00:29:47] Speaker 04: So the words the message refer to this thing when it's all text-based and also after it has been modified slightly to include the rich media data. [00:29:58] Speaker 00: I've got one more question before he stops. [00:30:01] Speaker 00: What's your best succinct response on [00:30:05] Speaker 00: Why do you think you don't need to discuss reasonable expectation of success when it's GORA as a single reference in terms of what you need? [00:30:13] Speaker 04: Because the closest case is in Ray Stepan. [00:30:16] Speaker 04: In Ray Stepan says you have to be combining embodiments. [00:30:19] Speaker 04: We're not combining embodiments. [00:30:22] Speaker 04: We made the point in our reply brief below, its appendix, page 286, we cited GORA, we quoted GORA, we said GORA doesn't apply because it requires combining embodiments. [00:30:35] Speaker 04: There was no response to that. [00:30:37] Speaker 04: FOGIE did not dispute that. [00:30:41] Speaker 04: So at the point, and that's clear in the record, counsel admitted that at the end of the oral argument. [00:30:47] Speaker 04: So if you look on page 13 in the final written decision, the bottom of the page, the board cites in Ray Stepon, [00:30:59] Speaker 04: notes that it requires combining embodiments. [00:31:02] Speaker 04: And then the last two lines say, here, however, petitioner's arguments do not rely on combining elements from multiple embodiments of guru. [00:31:14] Speaker 04: At the time that was written, that was our argument, and it was undisputed. [00:31:19] Speaker 04: It's not until we get to the appeal that we hear for the very first time, not even in those last few seconds of oral argument, the very first time we hear about any argument [00:31:29] Speaker 04: Disputing what I just read is on appeal. [00:31:33] Speaker 04: And that's why we think there's a forfeiture problem here, Your Honor. [00:31:37] Speaker 04: The board never considered any counter argument to our undisputed statement that we were not relying on a combination of elements from multiple embodiments. [00:31:48] Speaker 03: All right, Counselor. [00:31:49] Speaker 03: We have your argument. [00:31:50] Speaker 04: Understood. [00:31:50] Speaker 04: Thank you all for your time. [00:31:52] Speaker ?: Yes. [00:31:58] Speaker 03: And from your account, I'll switch it back to three minutes. [00:32:01] Speaker 02: Make it count, right? [00:32:03] Speaker 02: OK. [00:32:03] Speaker 02: Thank you, Your Honor. [00:32:04] Speaker 02: I wanted to address two points. [00:32:07] Speaker 02: Taking a step back, counsel for Atlassian, number one, has still never explicitly identified what this supposed single unaltered embodiment from Gore is upon which Atlassian is relying. [00:32:27] Speaker 02: FOGIE absolutely teed this issue up front and center in patent owner's response when teed up. [00:32:36] Speaker 02: Even when relying upon a single reference, combining prior elements, reasonable expectation of success is a requirement. [00:32:47] Speaker 02: In response, all Atlassian did was, again, continue to try and conflate the issue between enablement [00:32:56] Speaker 02: and reasonable expectation of success. [00:32:58] Speaker 02: Again, enablement, nothing to do with an obviousness argument. [00:33:03] Speaker 02: And then simply, in passing, say, in raise step on doesn't apply, or without ever explaining why. [00:33:12] Speaker 00: Well, I thought at least what I just heard now was he talked about in raise step on in terms of when you're talking about combining multiple embodiments, right? [00:33:22] Speaker 00: Within a single reference, even. [00:33:24] Speaker 00: What is your response to that? [00:33:27] Speaker 02: They did not distinguish Inray Step. [00:33:29] Speaker 02: I mean, they have a parenthetical quoting the Inray Step on multiple embodiments. [00:33:34] Speaker 02: But if I take a step back from that, in Atlassian's opening petition, they explicitly rely upon two separate embodiments from Gura. [00:33:48] Speaker 02: At Appendix 104, Atlassian refers to the Figure 2 embodiment from Gura. [00:33:56] Speaker 02: The declaration of their expert, Dr. Surati, at Appendix 1365, same thing, refers to the Figure 2 embodiment. [00:34:03] Speaker 02: Then they separately refer to the Figure 3 embodiment, again at Appendix 1337 in the Surati Declaration. [00:34:12] Speaker 02: And then, moreover, in Atlassian's petition, they then make reference to [00:34:18] Speaker 02: a preview function which they refer to as an optional embodiment. [00:34:23] Speaker 02: The petition nowhere at all makes clear at last seems somehow trying to explicitly rely upon just one single unaltered embodiment. [00:34:35] Speaker 02: They never asserted that. [00:34:38] Speaker 02: One last second point that I want to make very briefly is that when we turn to the 149 patent, going to the point that Councilor Glassian, I believe he was trying to assert that the 149 patent does not permit [00:35:02] Speaker 02: real-time insertion by the composer. [00:35:05] Speaker 02: As the composer's typing the message, when the composer inserts the rich media data, I heard Council for Lassian say that there was no way the user composing message could see those images apply on the fly, but that is belied by, specifically in Figure 2, [00:35:23] Speaker 02: Figure two right here at reference number 111 that I've highlighted, probably hard to see. [00:35:28] Speaker 02: But this is absolutely showing that the user device 300 is in communication with the overall media messaging platform communication system. [00:35:39] Speaker 02: So it's in two-way communication. [00:35:42] Speaker 02: It's not this the user has to type out the text of the entire message before images get inserted. [00:35:51] Speaker 02: That's just not the case. [00:35:54] Speaker 02: Any further questions from the court? [00:35:57] Speaker 03: No, we thank you for your argument. [00:35:59] Speaker 02: Thank you, Your Honor. [00:36:00] Speaker 03: That concludes today's arguments. [00:36:02] Speaker 03: If the court stands to reason.