[00:00:00] Speaker 02:
I believe we have four good cases this morning.

[00:00:03] Speaker 02:
The first is number 22, 1926, Sita and Mogul versus who?

[00:00:10] Speaker 02:
Mr. Schreiner.

[00:00:16] Speaker 02:
Yes, Your Honor.

[00:00:23] Speaker 01:
May I please record?

[00:00:25] Speaker 01:
My name is Stephen Schreiner.

[00:00:26] Speaker 01:
I'm here from Carmichael IP.

[00:00:29] Speaker 01:
I'm here on behalf of the patent owner and appellant, CetoMobile IP.

[00:00:35] Speaker 01:
I'd like to start by giving a brief overview of the invention and then turn to the main issues, the warrant reversal.

[00:00:42] Speaker 00:
Before we get into the merits, if you could address one question that would help me.

[00:00:48] Speaker 00:
The red brief has several different points at which they say you have waived arguments.

[00:00:55] Speaker 00:
You responded in the gray brief to one of them, if I recall correctly, the one dealing with the play script.

[00:01:03] Speaker 00:
Are you acknowledging waiver of the other four?

[00:01:07] Speaker 00:
I think there are four, maybe three or four issues that they have raised.

[00:01:11] Speaker 00:
And if not, why not?

[00:01:14] Speaker 01:
No, Your Honor.

[00:01:16] Speaker 01:
I don't have all four issues in mind where waivers are left.

[00:01:19] Speaker 00:
Well, I can tell you what they are.

[00:01:22] Speaker 00:
The Madison 273 streams two and the plurality of segments at least those three.

[00:01:31] Speaker 01:
So on the plurality of segments, I believe that relates to the at least one other portion issue relating to claim 49.

[00:01:44] Speaker 01:
And that certainly wasn't waived.

[00:01:47] Speaker 01:
That issue was raised before the board in the patent or response on page 45.

[00:01:51] Speaker 03:
Should I say?

[00:01:51] Speaker 03:
I'm sorry.

[00:01:52] Speaker 03:
Maybe you were providing that.

[00:01:53] Speaker 03:
Or page?

[00:01:54] Speaker 01:
Appendix 9743.

[00:01:55] Speaker 00:
Well, it would have been helpful if in your reply board, if you had responded.

[00:02:03] Speaker 00:
When somebody makes an argument that you've waived, it's a good idea to say, no, we haven't.

[00:02:10] Speaker 00:
And here's why.

[00:02:11] Speaker 00:
And here's where.

[00:02:12] Speaker 00:
we didn't believe that we raised it.

[00:02:15] Speaker 00:
So it leaves us in the dark.

[00:02:18] Speaker 00:
So if there are any other points you want to make as to why you haven't waived any of the other points, you're free to do so.

[00:02:29] Speaker 01:
Your point is well taken, and I'll endeavor to address that issue through my argument.

[00:02:36] Speaker 01:
The invention is generally directed to a multimedia streaming system having a client

[00:02:40] Speaker 01:
device and several specialized servers, including a reservation server, routing server, and media delivery servers.

[00:02:47] Speaker 01:
There's a first stage where the client makes a request for media, and in response to that request, a play script is generated that includes an indication of a series of media items in the play script.

[00:03:00] Speaker 01:
And then there's a second stage where the

[00:03:03] Speaker 01:
The play script has been generated and that play script is executed by the client device to retrieve each of the items that are set forth in the play script, each of the media items.

[00:03:15] Speaker 01:
At the time of the request, the reservation server pre-reserves resources for the requested media.

[00:03:24] Speaker 01:
And that's significant.

[00:03:26] Speaker 01:
And nearly each of the claims in the five IPRs involved in this particular appeal do recite a reservation identification reflecting that pre-resorting of resources for the requested media at the time the play script is generated.

[00:03:45] Speaker 01:
So that's an important part of the invention, at least set forth in the claims in this appeal.

[00:03:51] Speaker 01:
And it's something that distinguishes the prior art.

[00:03:54] Speaker 01:
The prior art typically did not reserve system resources at the time a playscript was generated in response to a client request for media.

[00:04:02] Speaker 01:
And let me give an overview on the two main arguments that I intend to present here.

[00:04:10] Speaker 01:
There's one straightforward reason why the board should be reversed.

[00:04:13] Speaker 01:
And that pertains to dependent claim 49 of the 636 patent, which recites at least one other portion.

[00:04:21] Speaker 01:
And that depends from independent claim 34, which recites at least one portion.

[00:04:27] Speaker 01:
The board erroneously construed the least one other portion limitation of dependent claim 49.

[00:04:34] Speaker 01:
Specifically, the board found that

[00:04:37] Speaker 01:
dependent claim 49's limitation for at least one other portion has the same scope, is the same as independent claim 34.

[00:04:46] Speaker 01:
And that's incorrect on its face, and I'll go into a little more detail on that in a moment.

[00:04:52] Speaker 01:
The second major issue that I'd like to cover in my opening is that the board erroneously construed the claim term instructions.

[00:05:01] Speaker 01:
And there should be a reversal on that basis, separate from

[00:05:06] Speaker 01:
the construction of dependent claim 49.

[00:05:09] Speaker 01:
As to the issue of waiver, Your Honor, with regard to claim 49 and the at least one other portion, as I said, that was raised in the patent owner's response, page 45 in the 636 proceeding, appendix 9743.

[00:05:30] Speaker 01:
So dependent claim 49 recites identifying at least one other portion of the requested media.

[00:05:36] Speaker 01:
Independent Claim 34 recites identifying and streaming at least one portion of the requested media.

[00:05:43] Speaker 01:
So accordingly, Claim 49 recites the delivery of at least one other portion in addition to the delivery of at least one portion, thereby providing for the delivery of multiple portions.

[00:05:56] Speaker 01:
according to claim 49.

[00:05:57] Speaker 01:
The board gave an erroneous construction of claim 49.

[00:06:00] Speaker 01:
The board found that dependent claim 49 had the same scope, was co-extensive with independent claim 34.

[00:06:08] Speaker 01:
Specifically, the board stated, and this is in the final written decision for the 646 patent, on page 35, the board states- Could you give us the appendix site for that?

[00:06:20] Speaker 01:
Yes.

[00:06:21] Speaker 01:
The appendix site to the final written decision is appendix 35.

[00:06:26] Speaker 01:
and this is out of the final written decision for the 646 patent on page 35.

[00:06:31] Speaker 01:
The board states, for the reasons given, that sees for independent claim 34, we have rejected patent owners' attempt to limit the claims to streaming the requested media in portions.

[00:06:43] Speaker 01:
So there the board is saying that claim 49, just like claim 34, does not provide for the delivery of portions, multiple portions.

[00:06:54] Speaker 01:
But as I said, on its face, claim 41.

[00:06:58] Speaker 02:
Is your suggestion that the other portion language is broader than the segment language because it requires more than one segment?

[00:07:11] Speaker 01:
So in this particular pair of claims, you've got independent claim 34, it recites that

[00:07:17] Speaker 01:
At least one portion of the requested media is identified and delivered.

[00:07:22] Speaker 01:
And then Claim 49 has the additional limitation that there is at least one other portion.

[00:07:30] Speaker 01:
Is the answer to my question yes?

[00:07:33] Speaker 02:
Yes.

[00:07:34] Speaker 02:
What it does is require that there be more than one portion?

[00:07:37] Speaker 01:
Yes, Your Honor.

[00:07:38] Speaker 01:
That's exactly correct.

[00:07:39] Speaker 01:
Claim 49 requires the delivery of multiple portions of the requested media.

[00:07:45] Speaker 01:
At least one portion.

[00:07:47] Speaker 01:
of the dependent claim and the at least one other portion set forth.

[00:07:51] Speaker 02:
I've heard the prior art showed multiple portions, assuming that you accept the board's construction that that includes entire videos or movies, for example.

[00:08:06] Speaker 01:
CEDAW's position certainly is that the prior art does not disclose the delivery of multiple portions of media.

[00:08:15] Speaker 01:
For example,

[00:08:17] Speaker 01:
in the IL reference.

[00:08:19] Speaker 01:
IL is a search engine that retrieves content items from third-party websites.

[00:08:26] Speaker 01:
And each of those items, such as a list of URLs in IL, is a complete media item.

[00:08:33] Speaker 01:
It is not a portion.

[00:08:35] Speaker 01:
That's a different argument, right?

[00:08:40] Speaker 02:
We have two separate arguments here.

[00:08:42] Speaker 02:
One is that portion can't be a complete media item.

[00:08:47] Speaker 02:
But assuming that the board is correct about that, that it can be a complete media item, the question is whether other portion requires more than one portion.

[00:09:00] Speaker 02:
You say it requires two portions, but what I'm suggesting to you is doesn't the prior art, if you accept the complete media item being a portion, doesn't the prior art show multiple portions?

[00:09:15] Speaker 01:
The board found that a single portion could constitute a complete media item.

[00:09:26] Speaker 01:
That's correct.

[00:09:27] Speaker 01:
And our position is that construction is clearly wrong.

[00:09:32] Speaker 00:
But if you're wrong about that and the board is correct, what happens to your other argument?

[00:09:38] Speaker 00:
I have the same question as Jeff Steck.

[00:09:43] Speaker 01:
If it's the case that a portion can be a complete media item, which I would submit is an oxymoron, then prior to our delivering multiple complete media items, i.e.

[00:09:57] Speaker 01:
multiple portions in the parlance of the claim, would meet the claim.

[00:10:03] Speaker 01:
I'm sorry if I took a little roundabout in addressing your question, Your Honor.

[00:10:11] Speaker 01:
So as I said, the board found that the dependent claim 49 was co-extensive with independent claim 34.

[00:10:20] Speaker 01:
And we submit that that's erroneous on its face and that there should be a reversal for that reason alone.

[00:10:36] Speaker 01:
Now, Hulu's only argument on appeal is that Claim 49 actually provides that there is delivery of at least one portion or at least one other portion.

[00:10:47] Speaker 01:
And I refer the court to Hulu's brief at page 45, where it states, place script that identifies at least one portion or other portion of the requested media.

[00:10:58] Speaker 01:
That's Hulu's position on appeal regarding Claim 49.

[00:11:01] Speaker 01:
Now, that's plainly incorrect.

[00:11:03] Speaker 01:
Claim 49 recites that there is

[00:11:05] Speaker 01:
at least one other portion delivered in addition to the at least one portion.

[00:11:10] Speaker 01:
Claim 49 does not recite that the at least one other portion is an alternative to the at least one portion provided for in the dependent claim 34.

[00:11:18] Speaker 01:
So on de novo review, CEDA respectfully submits that the court's claim construction, that dependent claim 49 was coextensive with independent claim 34, is erroneous and there should be a reversal on that basis.

[00:11:52] Speaker 01:
And I'll be honest, just turning back to your honest question, Judge Dyke, to your question about complete media items, and Judge Bryson, you also raised the issue.

[00:12:03] Speaker 01:
Somewhere in the final decision, there's a discussion about, well, what if the prior lawyer has a search for a genre of jazz?

[00:12:10] Speaker 01:
And there's a series of jazz songs that are returned in a playlist.

[00:12:16] Speaker 01:
Each of those songs in that playlist is a self-standing media item.

[00:12:25] Speaker 01:
It is not a portion as contemplated by the claims.

[00:12:31] Speaker 01:
So if you had a playlist that returned a song or a composition from Thelonious Monk, followed by one from Miles Davis, the Thelonious Monk composition is a standalone piece of media content.

[00:12:45] Speaker 01:
It's not a portion, and obviously the same would be true for the other songs.

[00:12:51] Speaker 01:
I'd like to turn now to the issue of instructions as construed by the board in connection with independent claims one and 34 of the 636 patent.

[00:13:03] Speaker 01:
The board's construction of instructions was erroneous and merits reversal.

[00:13:09] Speaker 01:
The board erroneously construed instructions in two regards.

[00:13:13] Speaker 01:
First, the board found that the mere listing of URLs is itself an instruction.

[00:13:20] Speaker 01:
And secondly, the board found that the claim term instruction in the independent claim

[00:13:26] Speaker 01:
and the claimed URLs can be one and the same.

[00:13:31] Speaker 01:
In other words, the board interpreted the independent claim as not requiring instructions separate from the recited URLs.

[00:13:41] Speaker 01:
And both of those are incorrect, and they really both stem from the board's determination that the instructions are not separate from the claimed URLs.

[00:13:50] Speaker 01:
Now, of course, the case law states that when you're looking to see whether elements in a claim are separate and distinct, you look at the claims and you look at the specification.

[00:14:00] Speaker 01:
So here we have instructions that are recited in the claim.

[00:14:04] Speaker 01:
You've got instructions, plural, recited in the claim, and then you've got at least one URL that is recited in the claim.

[00:14:11] Speaker 01:
I'm using claim 34 of this 646 as an exemplary here.

[00:14:16] Speaker 01:
And so they recite separately.

[00:14:18] Speaker 01:
And then in addition, the claim provides that the instructions are used together with the URLs to obtain a portion of the media.

[00:14:28] Speaker 01:
So there again, the claim is clearly distinguishing between and differentiating between the claimed instructions and the claimed URLs.

[00:14:38] Speaker 01:
And so the claim language supports the understanding that these two things are separate and distinct in a claim.

[00:14:45] Speaker 01:
Specification supports that understanding.

[00:14:48] Speaker 01:
For example, a specification discloses this is in a summary of the invention for the 636 patent, column 8, lines 29 through 32.

[00:14:57] Speaker 01:
It describes instructions that are separate and distinct from the

[00:15:03] Speaker 01:
URLs that are included in the invention.

[00:15:07] Speaker 01:
There's nothing in the passages that suggests that an instruction is the same thing as a URL, or that an instruction can be a URL, or that a list of URLs could constitute claims instructions.

[00:15:21] Speaker 03:
Now the board found that CEDAW's position on instructions... Do you agree that, can I ask if you agree, generically, that the word instructions could include a URL?

[00:15:31] Speaker 03:
Or that URLs can include instructions?

[00:15:34] Speaker 03:
No, our position, CEDAW's... But even outside of the specification, outside of the claims?

[00:15:39] Speaker 03:
Well, the words instructions are quite, it's a bad term, right?

[00:15:44] Speaker 01:
Outside the context of the patent and these proceedings.

[00:15:48] Speaker 01:
Can a URL include instructions?

[00:15:52] Speaker 01:
Certainly.

[00:15:52] Speaker 01:
No, it can be an instruction.

[00:15:55] Speaker 01:
A URL can be an instruction, generally, right?

[00:15:58] Speaker 01:
I'm not sure, but see, I took a position on that, but I would say that some procedures might understand that a URL could constitute an instruction.

[00:16:08] Speaker 01:
as I said, outside the context of the patent, and specifically these claims, which separately recite the instructions and the URLs.

[00:16:16] Speaker 03:
The main argument is that because the claims recite them as different things, they should be understood to be different things in the context of this invention.

[00:16:24] Speaker 01:
That's correct, Your Honor.

[00:16:25] Speaker 01:
That's correct.

[00:16:26] Speaker 02:
Now the board, the board, the board frankly didn't do a thing, but I wrote that out of time, that was my

[00:16:33] Speaker 02:
Colleagues have questions.

[00:16:35] Speaker 02:
I will give you two minutes for a bottle.

[00:16:38] Speaker 02:
Okay.

[00:16:38] Speaker 02:
Two minutes.

[00:16:41] Speaker 01:
Yes.

[00:16:41] Speaker 01:
Ms.

[00:16:45] Speaker 01:
Lane.

[00:16:46] Speaker 01:
You're done for the day.

[00:16:47] Speaker 01:
Oh, I'm done.

[00:16:47] Speaker 01:
Okay.

[00:16:47] Speaker 01:
All right.

[00:16:48] Speaker 01:
Thank you, Your Honor.

[00:16:51] Speaker 01:
Your Honor's plural.

[00:17:06] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:17:09] Speaker 04:
Amy Meehan for Appellee Hulu LLC.

[00:17:12] Speaker 04:
Today, I will focus on four groups of disputed claim elements.

[00:17:17] Speaker 04:
One, instructions and information instructing.

[00:17:20] Speaker 04:
Two, portions of requested media and plurality of segments.

[00:17:24] Speaker 04:
Three, play script and four, reservation.

[00:17:28] Speaker 03:
Could you maybe start and focus on the same arguments?

[00:17:31] Speaker 03:
the appellant was focusing on?

[00:17:33] Speaker 03:
Sure, of course.

[00:17:34] Speaker 04:
So starting with instructions, the CETO argues that the terms instructions and information instructing cannot include a media sequence and it cannot include information that's in the URLs.

[00:17:48] Speaker 04:
First, regardless of the claim construction, the board found substantial evidence of instructions that are not a media sequence and that are not in the URLs.

[00:17:59] Speaker 04:
In Eyal, at Appendix 1796,

[00:18:02] Speaker 04:
column 21, lines five through 14.

[00:18:05] Speaker 04:
It discloses a playlist embodiment that uses commands, that sends a list of commands that uses the media URLs as arguments to the commands.

[00:18:16] Speaker 04:
In the Madison 703 and the Holtz ground, Holtz, at appendix 1893, says that ASX files include instructions.

[00:18:26] Speaker 04:
And CITO's expert, Mr. Adams, at appendix 9915,

[00:18:31] Speaker 04:
Lines 20 through 22 also testify that ASX files include instructions.

[00:18:37] Speaker 02:
Do those alternative references cover all of the claims?

[00:18:41] Speaker 02:
Cover all of the grounds necessary to invalidate the claims?

[00:18:44] Speaker 04:
Yes, they do.

[00:18:49] Speaker 04:
But in addition, the court should not adopt CETOS construction because it's not supported by the record.

[00:18:57] Speaker 04:
With respect to the media sequence issue,

[00:18:59] Speaker 03:
I think... Would you talk about instruction again?

[00:19:02] Speaker 03:
Yes.

[00:19:04] Speaker 03:
Just that one for a minute, just since we're focusing on that.

[00:19:06] Speaker 04:
The instructions, whether it must include a sequence of media or whether... Just whether it may be in a URL or whether the URL is separate from the instruction.

[00:19:20] Speaker 04:
Yes, of course.

[00:19:22] Speaker 04:
So instructions can be information that's in the URL.

[00:19:26] Speaker 02:
We know that based on two... But their theory is that it can't be here because there's a separate reference to URLs in the claims.

[00:19:36] Speaker 04:
Yes.

[00:19:38] Speaker 04:
So the board cited evidence testimony from CETO's expert at appendix 5094 to 96 where CETO's expert was asked whether an instruction that's embedded in a Meteor URL

[00:19:53] Speaker 04:
would meet the instruction limitation of claim one of the 673 patent.

[00:19:57] Speaker 04:
And he said that, yes, it would, because the fact that the instruction is in the URL is merely a formatting difference.

[00:20:04] Speaker 04:
And it wouldn't matter to a person of skill in the art.

[00:20:06] Speaker 04:
A person of skill in the art would still think that that's an instruction.

[00:20:10] Speaker 04:
That's true.

[00:20:11] Speaker 04:
That's correct.

[00:20:14] Speaker 04:
In addition, there are other separately listed

[00:20:18] Speaker 04:
characteristics of the play script and the claims, for instance, the media identifier and the reservation identifier.

[00:20:25] Speaker 04:
And the patents in the specification describe that those can also be within the URL.

[00:20:32] Speaker 04:
For instance, at appendix 779, column eight, lines 61 through 64, it says that the URL includes the media identifier and the reservation identifier.

[00:20:44] Speaker 04:
And again, those are separately listed elements in the claims, just like the instructions.

[00:20:48] Speaker 03:
They're not listed as instructions, but you're saying because they're listed as separate elements, it shows that this specification supports something satisfying more than one claim element?

[00:21:01] Speaker 04:
The separately listed items of the play script, they don't actually need to be distinct items that they can all be in a URL.

[00:21:16] Speaker 00:
So they don't need to be physically distinct in different components, physical components, is that what you're saying?

[00:21:23] Speaker 04:
That they cannot be embedded in, for instance, a very long URL that has a lot of information.

[00:21:29] Speaker 04:
So the media identifier and the reservation identifier are within the URL as described in the specification.

[00:21:38] Speaker 02:
As the idea then, the claim that has both the URL and the instructions, you could have a long

[00:21:45] Speaker 02:
URL which has instructions in it but you could have a shorter one that didn't?

[00:21:51] Speaker 04:
I think that the length of the URL doesn't necessarily matter.

[00:21:55] Speaker 04:
It's whether the information in the URL is used by the media player as an instruction or whether it's used as a media identifier, reservation identifier.

[00:22:06] Speaker 03:
So there could be URLs that have instructions and an identifier or just an identifier, right?

[00:22:12] Speaker 03:
That's correct.

[00:22:16] Speaker 04:
If there are no other questions about whether an instruction can be in the URL, I can turn to the issue of whether the instructions can include the sequence of media URLs in the prior art.

[00:22:33] Speaker 04:
So both of the experts, both Cito's expert and Hulu's expert, testified that the order of the URLs in the prior art playlist instructs the media player as to what order to go out and obtain the media and to play the media.

[00:22:51] Speaker 04:
And so the sequence of the media URLs instructs the media player of the user device

[00:22:58] Speaker 04:
how to get the media and how to play it, and in that sense it's an instruction about the sequence of media for playback.

[00:23:11] Speaker 00:
Could you talk about the at least one portion argument that your opposing counsel raised this month?

[00:23:19] Speaker 04:
Sure.

[00:23:20] Speaker 04:
So opposing counsel first addressed the issue of the or other portion argument that they made in their reply brief regarding claim 49 of the 636 patent.

[00:23:33] Speaker 04:
That was simply an attempt to group the various claim elements that recite portion into one section of our brief.

[00:23:43] Speaker 04:
The or wasn't to signify that we think it can be just the portion or the other portion.

[00:23:49] Speaker 04:
It was simply grouping for the brief.

[00:23:53] Speaker 04:
We agree that in claim 49 there must be at least two portions.

[00:23:58] Speaker 04:
The first portion in claim 34 and then the second other portion recited in claim 49.

[00:24:03] Speaker 03:
Do you think the board agreed with that as well?

[00:24:06] Speaker 04:
Yes.

[00:24:07] Speaker 04:
The board found evidence in Eyal and in Madison of multiple portions under its construction of the term portions.

[00:24:15] Speaker 03:
But you, I mean, the present counsel identified a particular page where they think that the board said, oh, claim 39 doesn't add anything at all to claim one.

[00:24:26] Speaker 03:
Could you identify what you're relying on for suggesting the board found otherwise?

[00:24:31] Speaker 03:
Sure.

[00:24:38] Speaker 04:
So, I will explain the issue as I look for the specific page site, but I think the boards,

[00:25:05] Speaker 04:
explanation of other portions was that because of its interpretation of the word portions, that the playlist in a y'all, which lists songs of a playlist, and the ASX files in Madison, in the Madison references,

[00:25:31] Speaker 04:
would constitute portions, multiple portions.

[00:25:35] Speaker 04:
Those references do list multiple URLs that would each constitute a portion.

[00:25:41] Speaker 04:
So the first URL would be a portion, and the second URL listed would be a second portion.

[00:25:51] Speaker 04:
Okay, I found it.

[00:25:52] Speaker 04:
So on page appendix 35, the board said that

[00:26:02] Speaker 02:
It seems to be wrong that they said in the first paragraph on 35, because they're equating the scope of the other portion language as being the same as the portion language.

[00:26:21] Speaker 02:
It may be harmless error in the sense that

[00:26:26] Speaker 02:
There are prior references satisfying the other portion limitation on the construction that requires at least two.

[00:26:35] Speaker 02:
But there is some problematic language there on 35, right?

[00:26:41] Speaker 04:
I read the first paragraph of 35 is saying that the board disagreed with the patent owner's argument that AYAL does not disclose portions, plural.

[00:26:54] Speaker 04:
of the requested media.

[00:26:56] Speaker 04:
In other words, the board had already found that AYAL discloses portions, plural, of requested media.

[00:27:04] Speaker 04:
And from that, it can find, the board could find that AYAL disclosed the portion.

[00:27:13] Speaker 02:
Where's the other discussion in the board opinion?

[00:27:18] Speaker 02:
Where's 3A?

[00:27:27] Speaker 04:
You're asking for the discussion of Claim 34.

[00:27:30] Speaker 02:
They say for the reasons given in Section 3A.

[00:27:35] Speaker 02:
And you're saying in 3A, they're discussing Korshund's plural, right?

[00:27:40] Speaker 04:
Yes.

[00:27:41] Speaker 02:
So what page do we find that at?

[00:27:44] Speaker 04:
Yes.

[00:27:49] Speaker 04:
In 3A,

[00:27:59] Speaker 04:
at an appendix.

[00:28:15] Speaker 02:
Page 8 maybe.

[00:28:22] Speaker 00:
Page 8 and 9 or 3A.

[00:28:27] Speaker 04:
At pages eight and nine, the board discusses the construction of the term portion, one portion of requested media, and finds that it can encompass a full media item.

[00:28:41] Speaker 04:
But at appendix 22, they go to discuss specifically a yaw with respect to claim one, and at appendix

[00:28:55] Speaker 04:
They discuss AYAL for claim 34.

[00:29:00] Speaker 04:
Unfortunately, the discussion on those pages for AYAL is brief, but my understanding is that they applied the construction that they discussed at appendix 8 and 9.

[00:29:23] Speaker 02:
So I guess what you're saying is that CBM 202-00028 has multiple portions in it?

[00:29:46] Speaker 02:
This is discussion in paragraph 13 at the top of page 9.

[00:29:50] Speaker 04:
Yes.

[00:29:50] Speaker 02:
The portions issue runs across all of these patterns, and CITO made the same argument in the CBM as well as in... If I understand the point you're making is that the board's discussion of the term portion makes clear that they're finding that these prior art references include multiple portions, not a portion.

[00:30:14] Speaker 04:
That's correct because each URL in the Y'all playlist and each URL in the ASX files of Madison is a portion.

[00:30:39] Speaker 04:
In addition, even if

[00:30:44] Speaker 04:
Even if the court were to accept CETO's construction of the term portions, the board found substantial evidence, at least under Madison, that Madison discloses portions where a media item is broken into two and an advertisement is inserted in between two parts of media.

[00:31:09] Speaker 04:
That was based on Hulu's expert testimony as well as on CTO's expert testimony at appendix 19,740 through 41.

[00:31:22] Speaker 04:
While I didn't address other disputed issues, if the court has questions about any of the other disputed claim elements, I'm happy to answer.

[00:31:40] Speaker 02:
Okay.

[00:31:41] Speaker 02:
Thank you.

[00:31:42] Speaker 04:
All right.

[00:31:42] Speaker 04:
Thank you, Your Honors.

[00:31:45] Speaker 04:
To conclude, we ask that the court affirm the board's findings and I'll fly back here.

[00:31:49] Speaker 02:
I think we understood that.

[00:31:52] Speaker 02:
Mr. Schreiner?

[00:31:56] Speaker 01:
Yes, Your Honors.

[00:31:56] Speaker 01:
Just a couple of follow-up items.

[00:31:59] Speaker 01:
Council stated that CEDAW's expert admitted that a URL

[00:32:05] Speaker 01:
the URL could be, I'm sorry, that an instruction could be in the URL and that that would satisfy the instructions limitation.

[00:32:13] Speaker 01:
But I respectfully submit that that's not correct.

[00:32:16] Speaker 01:
What the CNOS expert said was that

[00:32:20] Speaker 01:
generically agnostic to the claim that instructions can be included in URLs.

[00:32:26] Speaker 01:
He did not testify that an instruction within the URL would be the instructions as set forth in the claim, where the instructions are identified separately from the URL.

[00:32:40] Speaker 01:
Secondly,

[00:32:43] Speaker 01:
As far as the specification goes, council refers to the specification and what it said about URLs.

[00:32:48] Speaker 01:
But let's focus on instructions vis-a-vis URLs.

[00:32:52] Speaker 01:
Specification states, for example, specification refers to media sequencing instructions.

[00:32:59] Speaker 01:
That's in the 636 pattern, column A, 29 through 32, appendix 730.

[00:33:04] Speaker 01:
The specification also discloses that, quote, the presentation may include special instructions.

[00:33:11] Speaker 01:
That's also in appendix 730.

[00:33:13] Speaker 01:
So none of these passages suggest that an instruction can be a URL.

[00:33:17] Speaker 01:
None of these passages suggest that an instruction and a URL are the same thing.

[00:33:24] Speaker 01:
Certainly none of them suggest that an instruction can be the mere sequence of items in a list of URLs.

[00:33:31] Speaker 01:
So the specification supports the, frankly, we believe is the plain language construction of Claim 34 and Claim 1, that the instructions are separate and distinct from the claimed URLs.

[00:33:44] Speaker 01:
Third, council made reference to, again, this issue of the sequence of URLs.

[00:33:50] Speaker 01:
The sequence of URLs is not an instruction.

[00:33:54] Speaker 01:
The media player is programmed, and the media player is programmed to play the items in the order of their receipt.

[00:34:01] Speaker 01:
And so that's what the media player does.

[00:34:03] Speaker 01:
The order of the URLs in the file received by the media player, that's not itself an instruction.

[00:34:09] Speaker 01:
Instruction really is something that has to be explicit.

[00:34:13] Speaker 02:
Okay, I think we're out of time.

[00:34:15] Speaker 02:
Thank you, Mr. Schrodinger.

[00:34:19] Speaker 02:
Thank you, Your Honor.