[00:00:00] Speaker 02:
The next case for argument is 23-1719, Stratus Auto versus Hayenda.

[00:00:07] Speaker 01:
Good morning, Your Honors.

[00:00:08] Speaker 01:
May it please the Court?

[00:00:10] Speaker 01:
Stratus Audio raised a variety of issues with a common theme.

[00:00:15] Speaker 01:
What we're looking at here is arbitrary board decision making.

[00:00:20] Speaker 01:
And it's what we call the square peg round hole problem, like mapping a green bicycle onto the plain meaning of red car.

[00:00:30] Speaker 01:
So I'd like to start where the briefing ends with Dependent Claim 15 and its server correlation requirement.

[00:00:38] Speaker 02:
Then I'll talk about... Can I just ask a question about that?

[00:00:40] Speaker 02:
We've got two IPRs here.

[00:00:42] Speaker 02:
Yes.

[00:00:44] Speaker 02:
Volkswagen seems to be missing claim 15, I think, is the one that's just in Hyundai.

[00:00:50] Speaker 02:
So if we were to decide, hypothetically, to affirm Hyundai, that would take care of all of the claims in Volkswagen.

[00:00:58] Speaker 02:
Whereas the reverse would not be true, because 15 is left out of an affirmance on Volkswagen.

[00:01:05] Speaker 02:
Is that just logistically the way it's working?

[00:01:06] Speaker 01:
You're exactly right, Judge.

[00:01:08] Speaker 01:
If the court affirms on all of Hyundai,

[00:01:12] Speaker 01:
I believe that would effectively moot Volkswagen, but if the court affirms on all of Volkswagen, we still have claim 15 in Hyundai to deal with.

[00:01:19] Speaker 02:
And you were going to start with claim 15?

[00:01:21] Speaker 01:
That's right, Judge.

[00:01:23] Speaker 01:
And on that, there's no real debate that Hyundai's proofs did not show that in the Ellis-Crosby combination, any server in any respect did claim 15's correlation of a merchandise purchase request with the instance of a song playing at the time of the request.

[00:01:41] Speaker 01:
The only thing Ellis states is that, quote, the user may, for example, purchase merchandise that is related to the music program that the user is listening to.

[00:01:52] Speaker 01:
That's paragraph 87 in Ellis.

[00:01:57] Speaker 01:
On its face, this one statement does not support the board's findings.

[00:02:01] Speaker 01:
There is something called the merchandise facility 10 in Ellis, and that receives these purchase orders.

[00:02:09] Speaker 01:
All this facility needs to complete

[00:02:12] Speaker 01:
that disclosed purchase is just any garden variety e-commerce, the merchandise identification, not any song identification, anything playing in the background at that time.

[00:02:24] Speaker 01:
Or even in the board's thinking, the technical terminology of PID or what we call data lane information, those weren't necessary in Ellis to complete the purchase.

[00:02:37] Speaker 01:
So petitioners expert, we believe, invented this feature on top of Ellis

[00:02:42] Speaker 01:
As evidenced in appendix 42 in the board decision and page 44, where the board relies on the expert's statements about what a person, quote, would have understood to be, quote, desirable.

[00:02:54] Speaker 01:
But recall, this on claim 15 was an express disclosure theory from Hyundai.

[00:03:01] Speaker 01:
So it's unclear what the would have understood and desirable commentary should have done for their case.

[00:03:08] Speaker 05:
I'm not sure if I'm following your argument.

[00:03:10] Speaker 05:
I would have thought that what the board found their expert was saying is that a person wearing skill in the art reading, I think it's Alice, would have inherently and always seen this in there.

[00:03:24] Speaker 05:
Isn't the board the ones who get to make fact findings about what one with skill in the art would read in the prior art references?

[00:03:33] Speaker 01:
Well, indeed, that's not how the board ruled.

[00:03:35] Speaker 01:
There's no inherency-type ruling here.

[00:03:38] Speaker 01:
There's simply a quotation of the expert where the expert says desirable and would have understood.

[00:03:44] Speaker 05:
Well, we'll put aside inherency.

[00:03:45] Speaker 05:
Maybe that's my mistake.

[00:03:47] Speaker 05:
But isn't the board saying, on a scale we are, reading this reference would see the following in there?

[00:03:55] Speaker 01:
I don't believe the board even went that far.

[00:03:59] Speaker 01:
I think in the board's quotation of the expert, even that expert in the quotation doesn't say that there is a server in ELLIS that does these things needed in Claim 15.

[00:04:11] Speaker 01:
And the expert testimony is at appendix page 885 to 886.

[00:04:16] Speaker 01:
That's Dr. Almaroth.

[00:04:21] Speaker 01:
There's no discussion there at 885 and 886 of the server doing anything.

[00:04:26] Speaker 01:
It's just Dr. Almaroth saying,

[00:04:28] Speaker 01:
in generalities, the same thing that the reference says, which is, gee, it's nice that when music is playing, someone can buy something.

[00:04:36] Speaker 01:
Then the reply declaration doesn't go any further either.

[00:04:39] Speaker 01:
1479 in the record is where Dr. Al-Murad has his reply declaration on this point.

[00:04:45] Speaker 01:
Still, no indication, no quotation from Ellis that anything like this is happening at the server.

[00:04:53] Speaker 01:
The board only went so far as to say that a user does a purchase quote.

[00:04:57] Speaker 01:
This is the actual board words, your honor.

[00:04:59] Speaker 02:
What's the page?

[00:05:01] Speaker 01:
Page 46.

[00:05:03] Speaker 01:
The user does a purchase quote that is related to the music program that the user is listening to at the time the purchase is made, i.e., correlated with the specific instance of the first media content.

[00:05:18] Speaker 01:
Even this board finding, if we

[00:05:21] Speaker 01:
elevated to the level of the finding does not map onto the claim language, which requires a receiving server configured to do the correlating.

[00:05:31] Speaker 01:
So the actual claim requires more than someone's ad hoc mental correlation of why a consumer is pressing the purchase button.

[00:05:40] Speaker 01:
Thus, the board clearly erred to find Ellis's disclosures meet the claim 15 limitations, and this court should reverse this to claim 15.

[00:05:49] Speaker 01:
And then onward to data identifying a specific instance of media content.

[00:05:54] Speaker 05:
Before you jump into that, my understanding was there were some grounds in the petition that the board did not reach, given its findings.

[00:06:02] Speaker 05:
So wouldn't we at best for you need to vacate and remand for the board to reach those other grounds?

[00:06:07] Speaker 01:
In the cases involving Hyundai, that is correct.

[00:06:10] Speaker 01:
In the case involving Volkswagen,

[00:06:12] Speaker 01:
which is actually part of the appeal number I'm talking on right now, that IPR number reached all grounds, rejected, I think, four of Volkswagen's grounds and only granted on one.

[00:06:25] Speaker 01:
So there's an affirmative rejection on Volkswagen's solo case, if you will, but the two cases that Hyundai is involved in, you're right, there would be some kind of remand.

[00:06:37] Speaker 01:
So the specific instance language, that spans all challenge claims.

[00:06:42] Speaker 01:
And here we have to keep in mind Volkswagen's Dewees reference, and Hyundai's Ellis reference.

[00:06:49] Speaker 04:
In Dewees... And the Crosby reference?

[00:06:52] Speaker 01:
Well, there's a debate between the parties.

[00:06:54] Speaker 01:
I can go into the Crosby reference as well.

[00:06:58] Speaker 01:
So I'll add Crosby to my commentary.

[00:07:00] Speaker 01:
But in Dewees, the board mapped this limitation onto television program guide data, in Ellis onto so-called PIDs and PID maps, and in Crosby, the board

[00:07:12] Speaker 01:
I believe the fair reading of the board decision is it didn't do any claim mapping at all of this claim limitation because just a page earlier it had already done that mapping onto Ellis.

[00:07:23] Speaker 01:
But within Crosby there had been a contention that some kind of segment ID along with time of day or something like that is going to qualify from their contention point of view as this claim limitation.

[00:07:41] Speaker 01:
So the PID and PID maps, just to go back to those, those are like numbered data lanes that help with multiplexing.

[00:07:48] Speaker 01:
But the problem with all of these mappings by the board is that they're arbitrary and just not rational.

[00:07:57] Speaker 01:
So the claim requirement is data enabling the identification of a specific instance of the first media content that travels with that media content itself.

[00:08:07] Speaker 01:
And this is happening in the claim

[00:08:10] Speaker 01:
at a receiver module, one receiver module, as hypothesized in the claim language, where we get to identify the specific instance of the media content coming in, being received on that receiver module.

[00:08:27] Speaker 01:
The scope of this wording refers to data that can identify an occurrence.

[00:08:32] Speaker 01:
An occurrence of this digital transmission of media.

[00:08:35] Speaker 01:
That is the plain meaning of the language.

[00:08:37] Speaker 01:
derivable for many dictionary definitions of the word instance.

[00:08:42] Speaker 01:
Our briefing analogy was that let's say there's law and order, an episode of law and order that's playing.

[00:08:48] Speaker 01:
One Federal Circuit judge could be watching that law and order episode digitally, and another Federal Circuit judge can be watching that same law and order episode at the same time on the same platform.

[00:09:03] Speaker 01:
Neither DeWees nor Ellis disclosed anything

[00:09:06] Speaker 01:
that would allow the distinction between the media content law and order coming into the respective judges' digital television set.

[00:09:17] Speaker 04:
Would you say the same thing about a million people or

[00:09:27] Speaker 04:
watching law and order over the air?

[00:09:30] Speaker 04:
Is each one of those a different instance because there are a million different antennas out there or over the cable?

[00:09:40] Speaker 01:
In the Dewey's world, a million different people would all share one program data information set.

[00:09:50] Speaker 01:
they would all share the uniform program guide information, which is the title of the program and the time window that it comes in.

[00:09:58] Speaker 01:
So hovering over their sort of imaginary heads, it's the same, let's say, string of zeros and ones.

[00:10:04] Speaker 01:
But in the patented world, required by the patent claim, Mr. Christensen's patent, it requires that there's a specific instance

[00:10:15] Speaker 01:
of that receipt that's identifiable from the data.

[00:10:19] Speaker 01:
So a specific instance means you've got to have something, as we argued in our briefing, something akin to a serial number that allows the distinction of one receiving module's receipt of this programming versus another receiving module's receipt of the same programming.

[00:10:36] Speaker 04:
Even though the programming is identical, even though it was all sent out

[00:10:43] Speaker 04:
in a traditional broadcast way at the very same time, because at some point it forks or something into a million different, you need a million different identifiers?

[00:11:00] Speaker 01:
Yes, exactly, Your Honor.

[00:11:01] Speaker 01:
That's exactly our point.

[00:11:02] Speaker 01:
And that's the strength and the power

[00:11:04] Speaker 01:
of this invention is that downstream of this activity at digital receivers and what have you and the backend when somebody purchases something, you get very high resolution, very powerful reporting capabilities that as a technological matter, the business world had never seen before.

[00:11:23] Speaker 01:
There are other issues I didn't get to, such as output system.

[00:11:26] Speaker 01:
And we stand on our briefs to demonstrate the several ways that the board erred.

[00:11:30] Speaker 05:
And I think you began your statement by saying this case involves arbitrary board decision making.

[00:11:36] Speaker 05:
Are you just speaking colloquially, or are you asking us to review under some arbitrary and capricious standard of review?

[00:11:45] Speaker 01:
Well, both.

[00:11:46] Speaker 01:
And you'll see it in the briefing, both arbitrary and capricious and substantial evidence review.

[00:11:50] Speaker 01:
And where the rubber meets the road, we give

[00:11:53] Speaker 01:
I'm using too many metaphors.

[00:11:55] Speaker 01:
We like the metaphor of claim language that says a red car, because we think our case is like a green bicycle in the prior art disclosure.

[00:12:06] Speaker 05:
But as I sit down to decide your case, am I reviewing the record for substantial evidence, and therefore I affirm the board if I find substantial evidence?

[00:12:16] Speaker 05:
Or am I only looking to see if they acted arbitrarily and capriciously, which may be even harder for you to meet?

[00:12:23] Speaker 01:
I understand.

[00:12:24] Speaker 01:
I'm trying to answer your question.

[00:12:25] Speaker 01:
I can't distinguish the two on the facts of this case, the two frameworks of review.

[00:12:30] Speaker 01:
Because if the prior art, to my eye, just under any point of view of the prior art, can't possibly rationally map onto the claim limitation.

[00:12:41] Speaker 01:
then it's an arbitrary, irrational decision by the board to make.

[00:12:44] Speaker 01:
And there's a lack of substantial evidence, I guess.

[00:12:46] Speaker 01:
Correct.

[00:12:47] Speaker 02:
OK.

[00:12:48] Speaker 01:
I'll reserve.

[00:12:48] Speaker 02:
If you're into your battle, let's hear from him.

[00:12:50] Speaker 01:
I'll reserve.

[00:12:50] Speaker 01:
Thank you.

[00:12:54] Speaker 03:
Mr. Fink, are you up first?

[00:12:56] Speaker 03:
Mr. Crudeau on behalf of Volkswagen, Your Honor.

[00:13:00] Speaker 03:
May it please the court, as a housekeeping matter, I will address the specific instance limitation in the Dewees reference.

[00:13:07] Speaker 03:
At issue in the Volkswagen case, my colleague, Mr. Fink, will address the Crosby and Ellis references at issue in the Honde case, as well as claim 15.

[00:13:17] Speaker 03:
And Judge Crouse, you are correct that if the court affirms in the Honde appeal, then all the issues here will be moot.

[00:13:23] Speaker 03:
If the court affirms in this appeal, then the only claim left to reach in the Honde appeal is claim 15.

[00:13:30] Speaker 03:
Turning to Claim 9 and the specific instance limitation, this limitation is broad in scope and what Stratis is trying to do is to factor a very narrow construction of this phrase through what it says is the plain and ordinary meaning.

[00:13:45] Speaker 03:
Now, that's wrong.

[00:13:47] Speaker 03:
It's forfeited and it's unduly narrow, as I'll explain in just a moment.

[00:13:50] Speaker 03:
But at the end of the day, substantial evidence supports the board's finding that Dewey satisfies this limitation.

[00:13:59] Speaker 03:
And we see that at appendix 113.

[00:14:01] Speaker 03:
The board expressly credited our expert testimony at appendix 4312 to find that the first media content is Dewees' television programming, and that the claimed data that identifies a specific instance of that content is Dewees' program guide.

[00:14:21] Speaker 03:
And that makes sense because the guide describes the program times, channels, and descriptions.

[00:14:27] Speaker 03:
And that data, critically, is continuously updated in real time, as DeWeese makes clear in paragraph 60.

[00:14:36] Speaker 03:
And so not only does DeWeese identify a television program in the abstract, it identifies a particular episode that a particular user sees at a particular time.

[00:14:48] Speaker 03:
That's very specific, Your Honors, and that's even narrower than what the claim requires.

[00:14:54] Speaker 05:
So if I follow correctly, even if we said the claim construction they're arguing now is not forfeited and was not wrong, it was right, you think the board's already made sufficient findings.

[00:15:07] Speaker 05:
that we would affirm for substantial evidence, even under their construction.

[00:15:10] Speaker 03:
Well, under any plausible interpretation of the phrase specific.

[00:15:13] Speaker 05:
Does that include theirs?

[00:15:15] Speaker 03:
Well, it's a little unclear, Your Honor.

[00:15:16] Speaker 03:
Today, I heard a construction that is much narrower.

[00:15:19] Speaker 03:
And that's the construction in the gray brief, which is that the claim data has to distinguish a program that is sent to one user from the same program sent to another user.

[00:15:30] Speaker 03:
If that's their construction.

[00:15:32] Speaker 03:
Even sent at the same time.

[00:15:35] Speaker 03:
even sent at the same time, Your Honor.

[00:15:38] Speaker 03:
That construction was never made below, and that's why I said it was forfeited.

[00:15:42] Speaker 03:
In any event, that construction is wrong.

[00:15:44] Speaker 03:
It's unduly narrow.

[00:15:45] Speaker 03:
The claim doesn't say anything about distinguishing between users and doesn't even require multiple users.

[00:15:52] Speaker 03:
in contrast to claims 1 and 12, which do require a plurality of user devices.

[00:15:59] Speaker 03:
All the claim requires is data enabling the identification of a specific instance.

[00:16:04] Speaker 03:
Likewise, the specification is much broader than the construction that Stratis now proposes.

[00:16:11] Speaker 03:
Appendix 159, column 7, line 45,

[00:16:15] Speaker 03:
The patent says that the claim data can be any means for identifying.

[00:16:19] Speaker 03:
And then column 11 says that the data doesn't even have to be unique.

[00:16:24] Speaker 03:
So there simply is no basis to read that very narrow construction into the plain and ordinary meaning of the term, Your Honor.

[00:16:31] Speaker 03:
And under the plain and ordinary meaning, substantial evidence supports the board's finding.

[00:16:37] Speaker 03:
I will turn it over to my colleague, unless there are other questions.

[00:16:42] Speaker 03:
Thank you, Your Honors.

[00:16:49] Speaker 02:
So we can add the time, the additional three minutes that he didn't use.

[00:17:03] Speaker 00:
Thank you, Your Honors, and may it please the Court.

[00:17:06] Speaker 00:
William Fink for Appellee Hyundai.

[00:17:11] Speaker 00:
So I'd like to pick up where my colleague left off, which is on the issue of the specific instance.

[00:17:20] Speaker 00:
my colleague addressed the claim construction.

[00:17:22] Speaker 04:
This is, I'm sorry, the claim nine, right?

[00:17:24] Speaker 04:
The same two-word phrase appears in claim nine and claim 15, right?

[00:17:29] Speaker 04:
Aren't they both specific instances?

[00:17:30] Speaker 00:
Yes, that's correct, Your Honor.

[00:17:32] Speaker 00:
There is, yes, that is the same specific instance.

[00:17:34] Speaker 04:
But you're talking about claim nine now.

[00:17:37] Speaker 00:
So I'm going to talk about claim nine specific instances, yes.

[00:17:40] Speaker 00:
So I'll just say that under any reasonable construction, the board's findings with

[00:17:47] Speaker 00:
respect to the Ellis and Crosby grounds are supported by substantial evidence, as the board's reasoning is very clear.

[00:17:59] Speaker 00:
Before I get to that, I will just refer to that if your honors agree that the patent owner did not address the Ellis-Crosby combination in its blue brief, that the patent owners forfeited the arguments

[00:18:15] Speaker 00:
that Ellis and Crosby does not render Claim 9 obvious and disposes of all the issues in the Hyundai appeal as well as the Volkswagen appeal except for Claim 15.

[00:18:31] Speaker 00:
So turning to the merits of the specific instance, my colleague explained that the new claim construction that

[00:18:43] Speaker 00:
that the patent owner is advancing where the data enabling the specific instance in claim 9A has to drill down all the way to which user among the millions of users that may be watching an episode of Law and Order.

[00:19:01] Speaker 00:
That's both an argument that was not made below before the board and is not made

[00:19:11] Speaker 00:
crispily at least in the the blue brief at all under the constructions that the board was or the arguments that the board was engaging with and I'll refer to appendix starting at the board's final written decision starting at

[00:19:38] Speaker 00:
Appendix 21, where the board is addressing Claim 9A, which is specifically the first media content and data enabling the identification of a specific instance of the first media content.

[00:19:58] Speaker 00:
What the board there engages in is engaging the patent owner's arguments

[00:20:04] Speaker 00:
The board first addresses the petitioner's evidence with respect to the ELIS prior art, and the ELIS being something that broadcasts a music program on, for example, one medium and graphics text related to music program on a different medium that can be displayed.

[00:20:30] Speaker 00:
So that's the two instance, or that's the two types of

[00:20:33] Speaker 00:
media content.

[00:20:34] Speaker 00:
So the board addresses the arguments with respect to what Ellis teaches

[00:20:41] Speaker 00:
up to page 24 of appendix, appendix 24, and then the board transitions to the Crosby teachings.

[00:20:50] Speaker 02:
Let me see.

[00:20:52] Speaker 02:
Up until you get to 24, they're just reciting what the petitioner and the patent owner's positions were, right?

[00:20:58] Speaker 00:
Yes.

[00:20:59] Speaker 02:
And then they start on 24 by saying they agree with you.

[00:21:03] Speaker 00:
We agree with petitioner.

[00:21:05] Speaker 00:
That sentence there that begins, we agree with petitioner.

[00:21:11] Speaker 00:
that Ellis's PID and PID maps meet the relevant portions of 9A.

[00:21:16] Speaker 00:
That sentence is where the board begins its findings with respect to Ellis and Crosby.

[00:21:24] Speaker 00:
And I'll go into that.

[00:21:25] Speaker 00:
But that sentence is where the patent owner would have you stop the analysis and say, there's no findings with respect to Crosby.

[00:21:33] Speaker 00:
That's not true.

[00:21:33] Speaker 00:
The findings with respect to Crosby and Ellis begin on the next page where

[00:21:41] Speaker 00:
And I'm on appendix 25, the last sentence of the second full paragraph, where the board said, as petitioner correctly points out, a person of ordinary skill of the art would have considered Crosby for all that it teaches, including all of its teachings regarding program segment, ID, date, and time, and citing the petition.

[00:22:07] Speaker 00:
The board goes on in the next paragraph

[00:22:12] Speaker 00:
point to the petitioner's sighting to Crosby, paragraph.

[00:22:18] Speaker 02:
So is the point of what you've been telling us for the past three or four minutes that they didn't appeal the Crosby findings?

[00:22:26] Speaker 00:
They did not.

[00:22:28] Speaker 02:
They never discussed them in their brief?

[00:22:30] Speaker 00:
It's not in the blue brief except in a footnote.

[00:22:34] Speaker 02:
Is it your 34th sort of a waiver?

[00:22:36] Speaker 00:
Yes, yes, Your Honor.

[00:22:39] Speaker 00:
So the Ellis and Crosby combination, the patent owner refers to it in a footnote and says that it's not really part of the board's findings or it's not part of the board's findings with respect to this limitation.

[00:22:54] Speaker 00:
The only way the patent owner could say that is to ignore everything that the board said.

[00:22:58] Speaker 02:
So does that take us necessarily to your view that everything that he's arguing about is deficient in the board's reasoning with regard to Ellis would have been found in Crosby?

[00:23:10] Speaker 00:
I think that's correct, Your Honor.

[00:23:12] Speaker 00:
Yes.

[00:23:13] Speaker 00:
Everything that is deficient.

[00:23:15] Speaker 02:
And we have to find that as well.

[00:23:18] Speaker 00:
That everything is taught by Crosby.

[00:23:22] Speaker 02:
not that everything, but everything he says is deficient in Alice.

[00:23:25] Speaker 02:
Either we disagree with him on Alice or we say, well, it wasn't in Alice, it was in Crosby.

[00:23:31] Speaker 00:
Well, I think if you disagree with the waiver argument, you could still look at the board's findings with respect to Crosby and how the board engaged with the party's arguments and see that the board was considering

[00:23:47] Speaker 00:
the teachings of Crosby, and specifically the program segment ID, the date and time of the broadcast, and see that the board addressed all that and then was careful to say... We could decide that that's correct.

[00:24:02] Speaker 04:
A, that it founded, and B, that it was supported by substantial evidence.

[00:24:07] Speaker 00:
That's correct.

[00:24:07] Speaker 04:
Okay.

[00:24:08] Speaker 04:
Can you just say why the PIDs from ELIS 2005 independently

[00:24:16] Speaker 04:
show this claim limitation, or are you not?

[00:24:20] Speaker 04:
I thought the board did find that, but also found with your sector process.

[00:24:25] Speaker 00:
They did say they did make that finding on Appendix 24.

[00:24:30] Speaker 00:
But if you look at Appendix 50 and 49 and 50, where the board summarized its conclusions, you'll see on Appendix 50 a table.

[00:24:40] Speaker 00:
And the middle column or the fourth column in the table says claims shown unpatentable.

[00:24:46] Speaker 00:
Do you see that?

[00:24:48] Speaker 00:
The board left blank all of the grounds of unpatentability raised by the petitioner, except for Ellis and Crosby.

[00:24:57] Speaker 04:
Right.

[00:24:57] Speaker 04:
So if, in particular, it left blank the fourth row, Ellis 2005 by itself, is there any other claim element that

[00:25:10] Speaker 04:
was found in Crosby.

[00:25:13] Speaker 04:
If the PID meet this claim element, does that mean everything was in Ellis 2005?

[00:25:22] Speaker 00:
If the PIDs themselves meet the limitation, then everything is in Ellis.

[00:25:29] Speaker 00:
Everything is in Ellis.

[00:25:32] Speaker 00:
But I think the board was, I think the board was unclear as to

[00:25:40] Speaker 00:
Well, the board was engaging with the arguments.

[00:25:42] Speaker 00:
And I think it's clear that the board was uncomfortable in relying solely on Ellis.

[00:25:48] Speaker 00:
And in fact, it says on Appendix 49, under the heading Other Asserted Grounds, that it was not addressing Ellis alone.

[00:25:58] Speaker 04:
Let me ask a variation on the question.

[00:26:00] Speaker 04:
Is there any element in any of the claims, not just Claim 9, 9, 10, 11,

[00:26:09] Speaker 04:
in 23 in particular, that would not be in Ellis itself if the PIDs performed this function.

[00:26:19] Speaker 04:
I'm trying to figure out what to infer about what the board found regarding Crosby from the fact that the board declined ultimately to rule on ground four.

[00:26:34] Speaker 00:
I don't think the, I think the answer to other claim limitations

[00:26:40] Speaker 00:
They weren't argued below, so I think there was no dispute that what was argued with respect to Ellis was not disputed.

[00:26:50] Speaker 00:
I don't know offhand whether or not

[00:26:54] Speaker 04:
Well, I claim 23.

[00:26:55] Speaker 04:
There's pretty extensive discussion of Crosby.

[00:26:59] Speaker 00:
Yes.

[00:27:00] Speaker 04:
So that could, in fact, explain the choice not to rule on ground four.

[00:27:08] Speaker 00:
Correct.

[00:27:09] Speaker 00:
Correct.

[00:27:09] Speaker 00:
I think that the board, yes, I think that the board went with what it saw as this is dispositive of all the issues in the IPR and stopped there.

[00:27:22] Speaker 00:
You want to get to claim 15 before you do.

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

[00:27:27] Speaker 00:
Yes, Your Honor.

[00:27:29] Speaker 00:
So with respect to claim 15, what my colleague here said was that there is really only

[00:27:51] Speaker 00:
a sentence from expert testimony and nothing to support it.

[00:27:56] Speaker 00:
And Your Honor asked whether or not Ellis itself inherently supports it.

[00:28:03] Speaker 00:
And not that this is an inherently case, but Ellis does specifically teach a correlation between, and let's just look at the claim language of 15, Ellis does

[00:28:23] Speaker 00:
specifically address the Hyundai's argument that there is a teaching of a response message that is, and then that a computer server is configured to correlate the response message, the response message being a purchase request, to the second media content, which could be advertising or things related to promotional

[00:28:53] Speaker 00:
materials with the specific instance of the first media content.

[00:28:58] Speaker 00:
And what Hyundai's pointed to was paragraphs 87 through 89 of Ellis.

[00:29:12] Speaker 00:
And that's what the board credited.

[00:29:15] Speaker 00:
And specifically with respect to 87, Ellis explains that there's a music

[00:29:22] Speaker 00:
application which can be, which may provide the user an opportunity to purchase merchandise, and it gives examples, or access other interactive feature that are associated with a music program.

[00:29:38] Speaker 00:
And the music program it's referring to there is what the user is listening to in the first media content.

[00:29:48] Speaker 00:
So now it's talking

[00:29:50] Speaker 00:
Ellis is talking about what is the second media content, which is the stuff that the user is able to look at while the user is listening to the music program.

[00:30:01] Speaker 00:
So that is where the two things are linked, and then it goes on to say that the purchased merchandise is related to the music program that the user is listening to, or maybe, this is, and I'm still in paragraph 87, I think this is the fourth sentence,

[00:30:17] Speaker 00:
or may purchase merchandise related to the music program the user is viewing information for.

[00:30:23] Speaker 00:
And the board cited this sentence as being, before it got to the expert testimony, the board cited this sentence as establishing the association between the first content, the second content, and the response to the content.

[00:30:43] Speaker 00:
And the board cited that at appendix

[00:30:51] Speaker 00:
Appendix 46.

[00:31:09] Speaker 00:
The only full paragraph before dependent claim 23.

[00:31:19] Speaker 00:
The board gives its findings.

[00:31:23] Speaker 00:
The petitioners demonstrated the ELLIS's merchandise request, which includes the necessary information for making a purchase.

[00:31:29] Speaker 00:
It gives examples that the merchandise identifier, user identifier, or account number.

[00:31:38] Speaker 00:
So it gives a bunch of things.

[00:31:41] Speaker 00:
And it says, other suitable information.

[00:31:47] Speaker 00:
This is paragraph 88.

[00:31:49] Speaker 00:
in Appendix 1331.

[00:31:52] Speaker 00:
Other suitable information, all those things are sent from the user back to the server.

[00:31:59] Speaker 00:
And so it says the user, this relates the

[00:32:05] Speaker 00:
the content that the user is listening to at the time the purchase is made, i.e.

[00:32:10] Speaker 00:
correlated with a specific instance of the first media content.

[00:32:13] Speaker 00:
And then it credits the explanation provided by Dr. Almaroth as consistent with these disclosures.

[00:32:21] Speaker 00:
I see I'm out of time.

[00:32:34] Speaker 02:
to keep the time even.

[00:32:36] Speaker 02:
We'll add two more minutes to the two minutes remaining.

[00:32:40] Speaker 01:
Last issue first.

[00:32:41] Speaker 01:
I'll keep that thread.

[00:32:43] Speaker 01:
What my friend just said didn't say the words, the server does the correlating.

[00:32:48] Speaker 01:
I think that's very important.

[00:32:50] Speaker 01:
The server has to do the correlating in claim 15.

[00:32:54] Speaker 01:
And I invite Your Honors to read paragraphs 87 through 89 of

[00:32:58] Speaker 01:
of the ELIS reference, because it will never say that there's any correlating of these two specific things at a server.

[00:33:06] Speaker 01:
On to the waiver discussion.

[00:33:10] Speaker 01:
Page 38 of our blue brief does two things for us.

[00:33:13] Speaker 01:
Number one, it does contain the alternative argument on CROSBY, and I'll get to it in a moment why we've never been hit by this.

[00:33:20] Speaker 01:
Page 38 of our blue brief.

[00:33:22] Speaker 01:
Footnote 3 has the discussion on that, which in context was all we needed to preserve the issue, and I'll explain the context in just a moment.

[00:33:29] Speaker 01:
And then in the body, sort of the center of page 38, we absolutely say that if data identifies an occurrence, and I'll skip a few words, e.g.

[00:33:43] Speaker 01:
by reflecting a particular user on a particular stream for that particular content, it will necessarily

[00:33:52] Speaker 01:
do the thing that we argued it will do.

[00:33:53] Speaker 01:
So in other words, we're preserving the specific user argument in the blue brief, so there is no possible argument for waiver.

[00:34:02] Speaker 04:
Does it matter that it identifies in occurrence EG by reflecting something akin to a unique serial number, not for a particular user, but for a particular transmission to a particular user, or does your point

[00:34:14] Speaker 01:
It's the Venn diagram.

[00:34:16] Speaker 01:
It's that specific instance.

[00:34:19] Speaker 01:
So it has to be all the above under our position, Your Honor.

[00:34:24] Speaker 01:
Crosby itself.

[00:34:25] Speaker 01:
So claim 23 is where the board relied on Crosby in the combination in a very express and necessary way.

[00:34:35] Speaker 01:
Before the board got the claim 23, it had to glue Ellis to Crosby under this court's legal standards for motivation to combine.

[00:34:44] Speaker 01:
So if your honors look on page 26, all of the findings about Crosby and its content were to talk about how it interleaves and glues into, in the mind of a person of ordinary skill, the reference of Ellis 2005.

[00:34:59] Speaker 01:
If you go two pages backwards on page 24, there's that explicit finding that says,

[00:35:07] Speaker 01:
something about Ellis and it says this, we agree with petitioner that Ellis 2005's PID and PID maps meet the relevant portions of limitation 9A because they identify where data is within the stream and distinguish between different tracks.

[00:35:20] Speaker 01:
That's a claim mapping.

[00:35:22] Speaker 01:
That's Ellis with the board saying go to Ellis for limitation 9A.

[00:35:27] Speaker 01:
Two pages later, you know,

[00:35:30] Speaker 01:
I heard my friend talk about the unclarity in the decision, and I agree with that.

[00:35:34] Speaker 01:
But the unclarity works in the direction of signifying solely that the board went no further than.

[00:35:40] Speaker 04:
For claim 9, why would gluing be necessary under your view that the board wasn't thinking about the contribution of Crosby to this particular element?

[00:35:51] Speaker 04:
Because there are no other elements that are contested outside Ellis.

[00:35:56] Speaker 04:
Whereas for claim 23, they need it.

[00:35:58] Speaker 01:
I confess when I first read this record, I had that very same question, and I have not answered it for myself, so I can't give you an answer, Your Honor.

[00:36:05] Speaker 01:
I think it's just strange board decision-making, as acknowledged through my friend talking about the unclarity of the decision.

[00:36:14] Speaker 01:
So for those reasons, Your Honors, we ask that the board reverse.

[00:36:20] Speaker 02:
Thank you.