[00:00:00] Speaker 00: The first case for argument this morning is 23-1156, Unilock, 2017, versus Slim TV. [00:00:10] Speaker 00: Mr. Jackson, whenever you're ready. [00:00:13] Speaker 03: Thank you, Your Honor. [00:00:14] Speaker 03: Good morning. [00:00:16] Speaker 03: May it please the Court. [00:00:18] Speaker 03: The board below in this appeal aired by construing the phrase, quote, presentation data that represents content, close quote, to include content and graphic, including thumbnails and titles. [00:00:30] Speaker 03: And I think what's really helpful to understanding the error and the structure of the claim is actually to start with what's been identified in the petition as Element 1B. [00:00:40] Speaker 03: Element 1B reads, storing data indicative of the first collection of presentations so as to be associated with the presentation data. [00:00:51] Speaker 03: The presentation data is actually recited in Element 1A. [00:00:54] Speaker 02: May I ask a question? [00:00:54] Speaker 03: 1A. [00:00:55] Speaker 03: Yes, sir. [00:00:56] Speaker 02: Why does this make a difference for the obviousness analysis? [00:01:01] Speaker 02: I mean, if you're right, does that mean that Lee is off the table as an invalidating reference? [00:01:06] Speaker 03: Yes, Your Honor, it does. [00:01:08] Speaker 02: But I thought Lee was cited to satisfy the 1A limitation on the basis of Lee's library, not on the basis of any RSS feed or any other aspect of the patent that would involve metadata. [00:01:26] Speaker 03: So Your Honor, the content library was cited as the source of the data that's stored in element 1A. [00:01:35] Speaker 03: So it's the storage location, the content library. [00:01:40] Speaker 02: But the debate wasn't whether or not it was metadata or some other type of data. [00:01:44] Speaker 03: The debate on remand, the debate is, what are the various pieces of data? [00:01:50] Speaker 02: Within elite. [00:01:52] Speaker 02: I mean, I was having trouble understanding how, if you were to [00:01:55] Speaker 02: for nailing her argument how this would necessarily neuter Lee as an invalidating reference for the 1A limitation. [00:02:04] Speaker 02: And I'm still not convinced if it makes any difference. [00:02:08] Speaker 03: I'll do my best to persuade you otherwise. [00:02:10] Speaker 03: So for element 1A in the petition, Sling identified metadata. [00:02:15] Speaker 03: They identified content titles and thumbnails. [00:02:19] Speaker 03: And in 1B, I'm sort of usurping my argument here, but in 1B my argument is that the data indicative of the first collection of presentations is the metadata. [00:02:32] Speaker 03: And so the metadata belongs in 1B, not in 1A. [00:02:35] Speaker 03: 1A is directed to storing the content. [00:02:40] Speaker 03: And so if 1A is storing content, but the petition only identified metadata for 1A, then the petition fails to show that the claims are invalid. [00:02:49] Speaker 03: based on the lead. [00:02:51] Speaker 00: In your contention is that the proper construction of 1A is that it cannot include metadata and it must include content? [00:03:01] Speaker 00: Yes, Your Honor, that's right. [00:03:02] Speaker 00: Now wouldn't one of ordinary skill in the art understand presentation data that represents content to be broad enough [00:03:11] Speaker 00: to include content as well as metadata about content? [00:03:16] Speaker 03: I think based on the specification, the 273 patent specification, one of skill in your art would understand that data indicative of the presentations or the collection of presentations is always being referred to in specification as the metadata. [00:03:30] Speaker 03: And when you talk about the content of 1A, that that is the, I'm sorry, the data is stored with the language correct here. [00:03:40] Speaker 03: presentation data that represents content, that has to be the content itself. [00:03:45] Speaker 03: And that's also disclosed in specification as well. [00:03:48] Speaker 00: I don't think presentation data that represents content is anywhere in the specification other than in the claims, correct? [00:03:56] Speaker 03: That precise phrase, correct, is not. [00:03:58] Speaker 00: And so you're arguing that other language in the specification would tell one a skill in the art [00:04:07] Speaker 00: that presentation data that represents content is so narrow that it excludes all metadata. [00:04:13] Speaker 03: Well, I don't know that it necessarily is narrow, but yes, in effect, it excludes content. [00:04:18] Speaker 00: Well, it excludes metadata, in your view. [00:04:20] Speaker 03: Yes, Your Honor, that's right. [00:04:21] Speaker 00: And if we disagree with that, then we have to affirm, right? [00:04:26] Speaker 03: Unfortunately, I agree. [00:04:27] Speaker 03: Yes, your honor. [00:04:28] Speaker 03: So if I could give you some additional pieces here. [00:04:33] Speaker 03: So for example, this is now going back to the data indicative of the first collection of presentations. [00:04:41] Speaker 03: At column five, line 16 to 18, the specification states that particular content graphics 230, so content graphics thumbnail, for example, particular content type indicators 235, [00:04:54] Speaker 03: and particular content information are stored to indicate, there's the word, individual presentations. [00:05:02] Speaker 03: Later in column six, lines 53 to 56, the specification states that in certain embodiments, the requested information may include a content title. [00:05:12] Speaker 03: That's the other piece that is relied on for 1A. [00:05:16] Speaker 03: But it may include content title, date, series information, and description akin to that to be displayed. [00:05:23] Speaker 03: in a corresponding indicator, there's the word that links it to 1B, indicator 240. [00:05:30] Speaker 03: And 240 is shown in Figure 2. [00:05:36] Speaker 03: Then specifically with respect to the storing aspect of the claims, and again I'm still talking about 1B, the specification states that DB, I'm sorry, that Server 32 may associate the stored content indicative information provided at Block 425 [00:05:53] Speaker 03: with the file stored at block 450. [00:05:56] Speaker 03: So this is that step of N1B, the claim says, storing data indicative of the first collection of presentations so as to be associated with the presentation data. [00:06:06] Speaker 03: So this passage right here, this is a column seven, line 17 to 19, it's telling us that the server, which is the database server, may associate the stored content indicative information [00:06:20] Speaker 03: provided earlier in the process at Block 425 with the file stored at Block 450. [00:06:25] Speaker 03: The file stored is the content file. [00:06:33] Speaker 03: And as I said earlier, the indicative information that's stored at Block 450 may include the content title, date, series information, and description. [00:06:42] Speaker 03: Again, that's provided up above in column six, lines 53 to 56. [00:06:46] Speaker 03: As to the presentation data in element 1A, the specification gives us different types of content, types that can be a part of the invention. [00:06:59] Speaker 03: There's textual content, graphical content, audio content, audio-visual content, et cetera. [00:07:07] Speaker 03: The specification also describes the, quote, [00:07:10] Speaker 03: is the content that is downloaded or streamed to the user's computer. [00:07:14] Speaker 03: That's at column six, lines one to six. [00:07:20] Speaker 03: So you have, on the one hand, you have in specification the storing of the content, the downloading of the content, or in the case of the feed, the identification and ability to access the content through the feed. [00:07:33] Speaker 03: And you also have an Element 1B as it relates to the presentation data that it stores data indicative of the first collection of presentations. [00:07:43] Speaker 03: So we have, I think, specification I believe is very clear that the data indicative of the first collection of presentations corresponds with the various types of metadata that are described throughout the specification, in particular in the locations I just read the court. [00:08:00] Speaker 03: But the same structure is then followed in the claims. [00:08:05] Speaker 03: We know this based on the prosecution history. [00:08:09] Speaker 03: In the amendment, part of which is APPX 776-777, these are the remarks section of the amendment that was made. [00:08:19] Speaker 03: The applicant's attorney explained and distinguished the prior Cooley reference based on the fact that Cooley only taught the aggregating of multiple RSS feeds, or multiple feeds. [00:08:33] Speaker 03: I don't want to overstate Cooley. [00:08:34] Speaker 03: multiple feeds, and that the claims then under consideration recited aggregating feed and non-feed data. [00:08:45] Speaker 03: And that's what's recited in 1A and 1B. [00:08:47] Speaker 00: And how does that help you? [00:08:47] Speaker 00: How does that? [00:08:49] Speaker 03: Well, I think that what it shows is that the claims in, you can't read 1A and 1B as covering the same data that's recited for 1C, the feed information. [00:09:00] Speaker 03: And the feed, as you're [00:09:01] Speaker 03: the court is aware the fee limitation is quite lengthy. [00:09:04] Speaker 02: That's your claim to charge an argument that they have to be interpreted the same way. [00:09:09] Speaker 03: In the end, I get to the same result. [00:09:10] Speaker 02: I mean, the indication from our court before was that you don't necessarily need to read them together. [00:09:17] Speaker 02: 1A can have independent meeting, and the board found 1A to have independent meeting. [00:09:24] Speaker 02: And thus far in the conversation, maybe it's because [00:09:27] Speaker 02: I'm a little hard of hearing. [00:09:29] Speaker 02: I haven't heard you really arguing the claim construction issue. [00:09:33] Speaker 02: You've just been assuming that you're right, and therefore metadata is excluded in 1C and 1A. [00:09:42] Speaker 03: Your Honor, I'm certainly not trying to assume that I'm right. [00:09:44] Speaker 02: No, I understand, but I haven't heard you stand up and say this case turns on claim construction. [00:09:50] Speaker 03: Well, certainly this [00:09:52] Speaker 02: I would think that's what you have to argue, but maybe I've missed something in this case, but I would have expected you to stand up and say the claims construction drives the result here and the suggestion by this court when the case was here earlier was incorrect. [00:10:11] Speaker 02: And that the board thus incorrectly followed the hint from this court. [00:10:16] Speaker 02: But I didn't hear you saying that until this conversation you and I are having right now. [00:10:20] Speaker 03: Yes, Your Honor. [00:10:21] Speaker 02: That seemed to me like a little late in the game for the dispositive issue in the appeal. [00:10:26] Speaker 03: Well, I started by explaining the board's error was its construction of element 1A. [00:10:31] Speaker 02: But can you explain why? [00:10:33] Speaker 02: You can say, one thing you can say, oh, the board erred. [00:10:36] Speaker 02: Move on. [00:10:37] Speaker 02: Of course, Judge, you'll agree with me. [00:10:39] Speaker 02: But you usually say they erred because one, two, three, four, five. [00:10:43] Speaker 03: Yes, because it included thumbnails and titles, which are metadata. [00:10:47] Speaker 02: And you didn't deal with the fact that this would exclude the preferred embodiment. [00:10:51] Speaker 02: And your argument is, well, this is a very unusual case in which the preferred embodiment can be excluded. [00:10:57] Speaker 03: No, Your Honor, I'm not saying this is a case where the preferred embodiment is excluded. [00:11:02] Speaker 03: I know that was the issue in the first appeal. [00:11:05] Speaker 03: And when this court issued its claim construction in the first appeal, that has ripple effects throughout the way the rest of the claim is understood. [00:11:11] Speaker 03: I understand. [00:11:12] Speaker 03: And so yet, at the end of the day, the PTAB on remand did err in its construction of element 1A by saying that metadata, the thumbnails and the titles, could satisfy that element. [00:11:24] Speaker 02: Thank you. [00:11:25] Speaker 03: Thank you, Your Honor. [00:11:48] Speaker 01: Good morning, Your Honor. [00:11:49] Speaker 01: May it please the Court. [00:11:51] Speaker 01: This Court should affirm for three reasons. [00:11:53] Speaker 01: The first is of academic interest. [00:11:54] Speaker 01: We think the claim construction argument being presented here was already rejected by this Court during the first appeal. [00:12:01] Speaker 01: When the appellant here raised that as an alternative basis for affirmance during the first appeal, which led to the footnote that was just alluded to. [00:12:09] Speaker 01: The second point is that [00:12:12] Speaker 01: The construction that Unalak is now. [00:12:14] Speaker 02: You actually view our opinion earlier to have rejected the claim for structure argument or to have flagged it as a problem? [00:12:22] Speaker 01: We interpret the result to be a rejection of the argument because it was an alternative basis for affirmance. [00:12:27] Speaker 01: And this court did not affirm. [00:12:28] Speaker 01: And in fact, it then dropped the footnote saying, we don't see a reason these two terms have to be the same. [00:12:34] Speaker 01: In essence, rejecting the alternative basis for affirmance. [00:12:36] Speaker 01: I'll get around to that in just one second. [00:12:37] Speaker 01: It's the least important of the three issues, to be sure. [00:12:41] Speaker 01: But it is somewhat interesting. [00:12:42] Speaker 01: The second point is that the construction, the New Yorker seeking is just wrong on the merits. [00:12:47] Speaker 01: I mean, the PTAB was correct to interpret these two terms to mean different things. [00:12:52] Speaker 01: And then third, even if the construction were accepted, Lee still meets the construction. [00:12:55] Speaker 01: Because we have two alternative mappings of Lee in the petition, the board found both of them satisfy the construction. [00:13:02] Speaker 01: One of them, the thumbnails, are certainly part of the content. [00:13:07] Speaker 01: And Lee says so. [00:13:08] Speaker 01: So even under their construction, they still lose. [00:13:11] Speaker 00: Even under their construction? [00:13:13] Speaker 00: Under their construction, yes. [00:13:14] Speaker 01: Under Unalock's construction, the one that's... Sorry, yes, remember. [00:13:16] Speaker 01: Under the construction that Unalock is seeking on appeal, they would still lose. [00:13:21] Speaker 01: Okay, just briefly on the law of the case, what I would point you to is this Unalock's original brief, which is in the appendix of 1322. [00:13:29] Speaker 01: The second issue that they list was, as a further basis for affirmance, whether the board properly declined to construe similar claims and claim one differently. [00:13:39] Speaker 01: That is exactly the same issue that's now being presented on appeal. [00:13:41] Speaker 01: This court rejected that basis for affirmance in its opinion. [00:13:46] Speaker 00: Although we did not expressly say what the construction should be. [00:13:50] Speaker 00: You had a grand agree with that. [00:13:51] Speaker 01: I agree. [00:13:52] Speaker 01: Nor, I mean, has really been expressed about what I mean, I heard some during your questioning just now, I heard finally, I think that some understanding of what the construction is that they're seeking, but as they've been argument to the PTAB, the only thing they've been really saying is the two terms have to be construed the same. [00:14:09] Speaker 01: And then the corollary to that is that because they didn't want to say, therefore, the presence of metadata in the data representing the content takes it outside the claim. [00:14:21] Speaker 01: That's sort of a corollary. [00:14:22] Speaker 01: But I mean, metadata is not in the fight. [00:14:23] Speaker 00: To be clear, what we said in the footnote the last time around was we think that the language of the two limitations, 1A and 1C, does not require the same construction. [00:14:33] Speaker 00: It seems like we left the door open to maybe it should be the same construction. [00:14:38] Speaker 01: Yeah, I agree. [00:14:39] Speaker 01: It's not a clear cut issue. [00:14:41] Speaker 01: But we do think, again, because it was an alternative basis for affirmance, if the court had agreed two terms should be construed the same, then it could have affirmed in the first case. [00:14:50] Speaker 01: And it did not. [00:14:51] Speaker 01: Okay, now let me get to the merits. [00:14:53] Speaker 01: I think the easiest way to address the merits is just to look at what the patent owner actually told the PTAB during the IPR. [00:14:59] Speaker 01: Here's what they said. [00:15:00] Speaker 01: This is appendix 264. [00:15:01] Speaker 01: Under a plain and ordinary meaning, data that, quote, represents content, end quote, that's the language of 1A, would include the content title. [00:15:11] Speaker 01: That's exactly what the PTAB found in the final rain decision. [00:15:14] Speaker 01: So I'm reading, that was from 264, and this is patent owner's brief to the PTAB. [00:15:18] Speaker 01: Now, that was before the remand. [00:15:20] Speaker 01: You know, I concede. [00:15:22] Speaker 01: But I certainly agree with what they said there, that under a plain or ordinary meaning, data that represents content would include content title. [00:15:29] Speaker 01: That's borne out by looking at the actual specification. [00:15:33] Speaker 01: Judge Stark, as you note, the word presentation data is not in the spec. [00:15:37] Speaker 01: It only appears in the claim. [00:15:38] Speaker 01: So the only way we can try to infer meaning of what presentation data is is to look at what the specification discloses. [00:15:43] Speaker 01: The specification discloses this figure too. [00:15:46] Speaker 01: uh, which is appendix page 33. [00:15:47] Speaker 01: Um, that shows essentially the page that would be shown to the user and it's got a list of, of these content items and there's information about each of those content items shown there. [00:15:59] Speaker 01: Um, the most relevant thing I guess you can point to is that section two 40, which is a box around various textual data. [00:16:06] Speaker 01: The very first item is title. [00:16:08] Speaker 01: Um, so that's the title of the item. [00:16:11] Speaker 01: Then if you look to the left of that, you'll see this box 230, which is an empty box, but it's clearly meant to reflect some sort of graphic, like a thumbnail. [00:16:18] Speaker 01: So those are the exact two items from Lee that we mapped to this plane, saying, you know, here we are in the embodiment that they give us, and this is the presentation data. [00:16:26] Speaker 01: It's a thumbnail. [00:16:26] Speaker 01: It's a title. [00:16:27] Speaker 01: I mean, it's other things as well, but at least those two things, we find both of them in Lee. [00:16:30] Speaker 01: Therefore, Lee is disclosing this element. [00:16:32] Speaker 02: What's the data that's stored in 1B? [00:16:37] Speaker 01: in 1B, in this figure? [00:16:39] Speaker 02: The other side said, I thought it was essentially an underlying code that had not been disclosed to the Bureau. [00:16:48] Speaker 01: Yeah, so that's not fully briefed. [00:16:50] Speaker 01: We haven't taken a position on what in 1B would matter. [00:16:53] Speaker 02: I'm just trying to understand. [00:16:55] Speaker 02: Part of the problem I had with this case was the briefs didn't really tell me how this patent works. [00:17:01] Speaker 01: Correct, yeah. [00:17:02] Speaker 02: Didn't really explain to me what's really in the real world happening. [00:17:06] Speaker 01: Yeah. [00:17:06] Speaker 02: So I was, I finally, best I could come up with that the 1B step was storing underlying code that hadn't been presented to the user. [00:17:19] Speaker 01: I think that's possible. [00:17:20] Speaker 01: I think it could be. [00:17:21] Speaker 01: I think it could be other things shown in this figure too. [00:17:23] Speaker 01: So that element 235, which is kind of the smaller box in between the two boxes, it's possible that that is what corresponds to element 1B. [00:17:33] Speaker 02: I just didn't understand 1B to be relevant to our [00:17:36] Speaker 02: I agree that 1B has nothing to do with the issue that's presented on appeal. [00:17:50] Speaker 01: What we mapped from Lee to 1B is something entirely different. [00:17:53] Speaker 01: So Lee, we mapped in Lee its addresses, [00:17:56] Speaker 01: And it's tags. [00:17:58] Speaker 01: Those are underlying data that's not necessarily shown to the user, but could be used to search for things. [00:18:03] Speaker 01: So if you want to search for it, I think Lee talks about sporting events, so you could search for Federer, and you would get all the news stories relating to Roger Federer. [00:18:10] Speaker 01: That would be data that's stored in Element 1B, which is not necessarily shown to the user until they search for it. [00:18:16] Speaker 01: And that's totally consistent with how this claim works. [00:18:18] Speaker 01: The point of the claim, what is this patent about? [00:18:19] Speaker 01: This patent is about taking different pieces of data from the internet and putting them on one page. [00:18:23] Speaker 01: That's what it's about. [00:18:24] Speaker 01: So the claim broadly describes various types of data that you could put on that single page. [00:18:29] Speaker 01: At our point, 1B, whatever you want to say about 1B, there was no dispute that Lee has it. [00:18:35] Speaker 01: And the way we mapped to it was something different than what we're mapping to element 1A or element 1C. [00:18:39] Speaker 01: So this is not an issue where we're relying on the same data to satisfy two different claim limitations. [00:18:44] Speaker 01: There's two things. [00:18:45] Speaker 00: I understand Uniloc, at least, to be arguing that 1B is metadata. [00:18:51] Speaker 00: And he walked us through the specification and says, want to scale the RF? [00:18:56] Speaker 00: would always understand that when this inventor is referring to metadata, the inventor uses the phrase data indicative or indication. [00:19:05] Speaker 00: And that's what 1B is about. [00:19:07] Speaker 00: And therefore, if that's right, then metadata is not in 1A. [00:19:10] Speaker 00: Do you at least understand what the argument is? [00:19:12] Speaker 01: Perhaps. [00:19:13] Speaker 01: I mean, that's a charitable view of the argument. [00:19:15] Speaker 01: I mean, there's various problems with that argument. [00:19:18] Speaker 01: First and foremost, the word metadata appears nowhere in the 273 specification. [00:19:21] Speaker 01: That's just not a term in the patent anywhere. [00:19:23] Speaker 01: So I think it would be a stretch to try to say that somehow there's a distinction being drawn by the inventor between metadata and non-metadata by using these different claim terms. [00:19:33] Speaker 01: It's also inconsistent with what I just read to you about Unilog's own view of what the claim means. [00:19:36] Speaker 01: They said, title is, under plainware, meaning data that represents content. [00:19:42] Speaker 01: And then specification, again, I pointed out box 240 in figure two, and that's described in specification as content information. [00:19:54] Speaker 01: That's from column five, line 16. [00:19:57] Speaker 01: It's roughly the same section that I think Patton was pointing to. [00:20:02] Speaker 01: So anyway, in our view, having read the specification, the board was certainly within its right to say, yeah, I mean, this element is broad. [00:20:12] Speaker 01: It could include the content, but it could include other things like title. [00:20:15] Speaker 01: Title is one example of things that the specification itself seems to tie to this notion of the element 1A. [00:20:25] Speaker 01: I'll just move to the third point, which is that even if you were to accept the construction that Uniloc is now seeking, Lee would still satisfy it because the thumbnails in Lee are, in fact, part of the content. [00:20:40] Speaker 01: So it's not that they are purely metadata. [00:20:45] Speaker 01: It is itself an image from the video. [00:20:48] Speaker 01: So Lee gives an example of a stream of videos. [00:20:50] Speaker 01: And if you take a single image out of a video and paste it onto that screen, that is part of the content. [00:20:56] Speaker 01: So it would satisfy this construction. [00:20:58] Speaker 02: And that's sort of like moving the pea around under the shell. [00:21:01] Speaker 02: You know, the guy in the park that asks you to bet on where the pea is under the shell. [00:21:08] Speaker 02: And metadata is either content or not content, depending on which shell you put it under. [00:21:14] Speaker 01: I mean, perhaps, but the question is... It sounded like slight of a hand to me. [00:21:18] Speaker 01: Well, I mean, if it was doing slight of a hand, I think it's Yougelock in trying to say that the claim means one thing and then on appeal saying it means a different thing. [00:21:27] Speaker 01: But in our view, what we mapped were two different things. [00:21:30] Speaker 02: I mean, how can metadata be sometimes not metadata? [00:21:35] Speaker 01: Yeah, well, again, the problem is that the word metadata is not patented at all. [00:21:38] Speaker 01: So there's metadata ideas coming out. [00:21:40] Speaker 02: Metadata is just data about data, right? [00:21:42] Speaker 01: It is. [00:21:42] Speaker 01: I mean, in general, that's, that's, and that seems to be how Lee is using the term. [00:21:46] Speaker 01: One thing I can tell you for sure, though, is in Lee, the thumbnails are not metadata. [00:21:50] Speaker 01: And I know that because Lee tells us that. [00:21:51] Speaker 02: Well, so metadata can be content. [00:21:54] Speaker 01: It certainly could be content in some sense. [00:21:56] Speaker 02: And maybe it's not content. [00:21:58] Speaker 01: I think it is possible. [00:21:59] Speaker 01: It is content. [00:22:00] Speaker 01: It is not content. [00:22:01] Speaker 01: I think that's possible depending on the context and what you're talking about, right? [00:22:05] Speaker 01: But in the case of our mapping, if you want to look at just Lee's thumbnail mapping where we said, look, Lee's thumbnails satisfy element 1A. [00:22:14] Speaker 01: They are presentation data that represents content. [00:22:16] Speaker 01: So the thumbnail is representing, it's representing content representing a video. [00:22:20] Speaker 01: But it's representing that video by giving you just one image from that video, pulling out a single frame of that video and displaying it for you. [00:22:27] Speaker 01: So in that sense, it is the content. [00:22:30] Speaker 01: It is part of the content. [00:22:31] Speaker 01: It's not the whole thing, but it's certainly part of the content that would satisfy even their construction of element 1A. [00:22:38] Speaker 01: And again, we know this is true because Lee tells us, first of all, in paragraph 64 of Lee, this is at appendix page 981. [00:22:49] Speaker 01: It says, only part of the retrieved items is displayed. [00:22:55] Speaker 01: And then it goes on. [00:22:55] Speaker 01: For videos, it might be, for example, thumbnails. [00:23:00] Speaker 01: So clearly in Lee, thumbnails are part of the content itself. [00:23:06] Speaker 01: And we know it's not metadata, because in paragraph 118 of Lee, he says this. [00:23:11] Speaker 01: The items are actually displayed through virtual representations, which correspond to icons, metadata, headlines, or thumbnails. [00:23:19] Speaker 01: So we know that thumbnails and metadata in Lee's view are two different things. [00:23:22] Speaker 01: The board was certainly entitled to rely on that in concluding that Lee satisfies the claims. [00:23:29] Speaker 00: This third argument is not one that the board reached, is that right? [00:23:34] Speaker 00: So, that is, the board never said to us Lee would render obvious even under patent owner's construction. [00:23:40] Speaker 00: Or if they did, I didn't see that. [00:23:42] Speaker 01: You know, if you look at appendix 18, the final decision, they do cite to Dr. Storr's testimony what he says this. [00:23:48] Speaker 01: They say, Dr. Storr testifies that Lee's content library can store both data files and part, in italics, of an item of content. [00:23:58] Speaker 01: which a person of ordinary skill in the art would understand to include thumbnails and titles. [00:24:02] Speaker 01: So they were, they certainly hint strongly that they understood they were mapping two different things to element 1A. [00:24:09] Speaker 00: I agree with you, they don't say that even if we would accept Eulog's construction, we would there... I mean, it says, in fact, on 19, as you know, they go on to say, we don't adopt patent owners' construction, as we've explained above. [00:24:21] Speaker 00: Yeah, they don't. [00:24:22] Speaker 00: And what you cited is really their description of what the petitioner says. [00:24:26] Speaker 01: It is. [00:24:26] Speaker 01: It is. [00:24:27] Speaker 01: But they didn't bother to quote it. [00:24:30] Speaker 01: I mean, it's important that there are these two different mappings, and it's relevant. [00:24:32] Speaker 00: If we're not persuaded by either of your first two arguments, can we really affirm on the third one, or do we have to send it back? [00:24:38] Speaker 01: No, I think you can affirm. [00:24:40] Speaker 01: I think you can reasonably discern that they found both of those things satisfy the claim element. [00:24:46] Speaker 01: And so if you were to construe the claim element the way Unilock now sees, which I think would be wrong and inconsistent with the first opinion. [00:24:51] Speaker 01: But if you did that, I think you could still discern that the PTAB probably have already agreed that Lee's thumbnails would satisfy that narrow construction. [00:25:04] Speaker 01: The other thing I would point to is [00:25:07] Speaker 01: appendix page 15 where they say, further, we do not agree with patent owner's argument that titles and thumbnails cannot be presentation data that represents content because they are metadata, whether thumbnails and titles not contained in RSS feed metadata are immaterial. [00:25:24] Speaker 01: to whether they're presentation data that represents content. [00:25:27] Speaker 01: So I think, again, there, again, the board was mapping both to the claim. [00:25:32] Speaker 01: And even if you were to conclude that somehow titles were metadata and are outside the scope of the claims, the lead thumbnails would still clearly be in the scope of the claims. [00:25:43] Speaker 01: And I think the board's opinion suggests as much. [00:25:48] Speaker 01: Unless the board has any other questions. [00:25:50] Speaker 01: Thank you. [00:26:07] Speaker 03: Thank you, Your Honor. [00:26:09] Speaker 03: Let me start, if I can, where counsel for sling ended, which is on APPX 15. [00:26:16] Speaker 03: And he read from the paragraph there in the middle of the page a couple of sentences. [00:26:21] Speaker 03: The first one was, we do not agree with patent owner's argument that titles and thumbnails cannot be presentation data that represents content because they are metadata. [00:26:30] Speaker 03: Well, that's the error. [00:26:31] Speaker 03: I mean, that is the error that we have appealed in this case, is that construction. [00:26:36] Speaker 03: So I'm not sure that that's really, I mean, that is the issue. [00:26:40] Speaker 03: We can't just say that we defer to the board on that because they said that. [00:26:43] Speaker 03: If we did, we'd have no basis for appeal. [00:26:47] Speaker 03: Second, on page APPX 18, council also referred to the passage here where the board is describing Dr. Storrs' testimony. [00:26:57] Speaker 03: First of all, Judge Prost, you're absolutely correct. [00:26:59] Speaker 03: This is the classic PTAD analysis. [00:27:03] Speaker 03: They'll summarize what they view as the relevant part of the petitioner's argument. [00:27:07] Speaker 03: They'll summarize the relevant part of the patent owner's argument, and they typically give their analysis and their conclusions. [00:27:13] Speaker 03: And this is in the summary of the petitioner's analysis. [00:27:16] Speaker 03: So they aren't finding that thumbnails or titles would qualify and satisfy element 1A here. [00:27:24] Speaker 03: In fact, if you look at Dr. Stewart's [00:27:26] Speaker 03: testimony that's actually cited by Sling in their briefing, he never actually analyzed that. [00:27:35] Speaker 03: He simply sort of said – he actually assumed the conclusion. [00:27:38] Speaker 03: He said, in the 273 patent specification, there are these titles and thumbnails that are disclosed. [00:27:44] Speaker 03: I find the same disclosure in LEED, and therefore he concludes that those [00:27:50] Speaker 03: teachings from Lee set us by Element 1A. [00:27:52] Speaker 03: But that begs the question, is what data is actually recited in Element 1A and what's not? [00:28:05] Speaker 03: So there isn't evidence supporting the conclusion that the board found in the alternative that Lee satisfies patent owner's proposed construction. [00:28:14] Speaker 03: Another point that was made was that we haven't really stated our construction [00:28:19] Speaker 03: And I'll just direct the court to page 11 of Palin's principal brief. [00:28:27] Speaker 03: In there, we do provide the construction of element 1A, or at least part of element 1A, which is, quote, presentation data that represents content. [00:28:38] Speaker 03: It should be construed as the data or portion of the data of the audiovisual content itself, not metadata. [00:28:46] Speaker 03: And that parallels the court's decision in the Netflix case, the district court's decision in the Netflix case. [00:28:52] Speaker 03: And I think the district court's decision in the Netflix case uses slightly different wording, but Unilock would be fine with that construction as well, Your Honor. [00:29:11] Speaker 03: And so the other language is that Lee teaches that thumbnails, in particular, thumbnails that were discussed, that thumbnails are part of the content. [00:29:23] Speaker 03: This is really, I think, not directly relevant because of my argument that the board didn't actually find that. [00:29:31] Speaker 03: But just to head that off, recall that when we're analyzing whether the claims of the 273 patent are satisfied or not, we have to use the language [00:29:39] Speaker 03: of the 273 patent and the specification. [00:29:42] Speaker 03: So if the 273 patent tells us that metadata are these particular types of data, it doesn't matter what Lee characterizes, those same pieces of data, in this case, whether it be content or metadata. [00:29:55] Speaker 03: There might be some dispute in the art as to where the line is, for example, between what's metadata versus what's content. [00:30:02] Speaker 03: I don't know. [00:30:04] Speaker 03: That hasn't been developed on this record. [00:30:06] Speaker 03: I'm simply saying that we have to use the language [00:30:08] Speaker 03: of the 273 patent itself when we're analyzing whether the claims of the 237 patent are disclosed or rendered obvious by the prior art. [00:30:17] Speaker 03: And with that, I'll yield the rest of my time. [00:30:20] Speaker 03: Thank you. [00:30:21] Speaker 03: We thank both sides. [00:30:21] Speaker 03: The case is submitted.