[00:00:00] Speaker 02:
Our next case on the docket is Xerox Corp versus X Corp, appeal number 23-1913.

[00:00:10] Speaker 02:
Mr. Reimann, we'll find a room ready for a second time around.

[00:00:16] Speaker 00:
May I please report?

[00:00:17] Speaker 00:
Kyle Reimann here again for Xerox Corporation challenging the board's cancellation of the 475 patent.

[00:00:24] Speaker 00:
over ex-corp's prior art.

[00:00:27] Speaker 00:
We believe the board's decision should be reversed or at minimum vacated or amended for three reasons.

[00:00:33] Speaker 00:
The first, the board misconstrued proximal information.

[00:00:35] Speaker 00:
The second, the board erred in its obviousness analysis.

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and third, the board erred in properly considering Xerox's evidence of unexpected results.

[00:00:45] Speaker 04:
Are there arguments with respect to proximal information and the claim construction, the same as arguments you made in the prior appeal?

[00:00:52] Speaker 00:
Your Honor anticipated me.

[00:00:53] Speaker 00:
I only have one point to add.

[00:00:54] Speaker 00:
And this is at appendix site 3590 at the bottom through 3591.

[00:01:01] Speaker 00:
And this is the deposition of Dr. Turnbull, who is X Corp's expert.

[00:01:06] Speaker 00:
My co-counsel, Mr. Quigley, asked Dr. Turnbull, and I quote, if I were to extract text from a link, and now we only have that text itself, and not any association of that text and the link, is that text that we've extracted still proximal information?

[00:01:25] Speaker 00:
Dr. Turnbull responded, I think it would have to be associated with something.

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Now, there's more that comes after that.

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And the more is why the board rejected that Dr. Turnbull was conceding an association between text and link.

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We think a fair reading of Dr. Turnbull's testimony is that he was agreeing that there must be an association between text and link.

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And what he was saying not disclosed was an association between text and part of a link.

[00:01:54] Speaker 04:
So you are pointing to extrinsic evidence in this appeal to help support up

[00:01:59] Speaker 04:
your argument that association needs to be taken into account in the proximal information definition?

[00:02:04] Speaker 00:
Yes, Your Honor, but not only extrinsic.

[00:02:06] Speaker 00:
We think the same as Your Honor asked.

[00:02:08] Speaker 00:
It's similar arguments across the two appeals.

[00:02:10] Speaker 00:
This is just additional.

[00:02:13] Speaker 00:
Turning to the obviousness analysis, Your Honor,

[00:02:15] Speaker 00:
Substantial evidence does not support the board's combining cheese proximal information with chin.

[00:02:23] Speaker 00:
Now what the board did is it combined the two references based off of a similar goals theory.

[00:02:29] Speaker 00:
Now, the problem with that is that Qi distinguishes between two types of algorithms, a prediction algorithm and an inferring algorithm.

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And the way it works is whenever Qi discloses inferring, there's a user path and an information need.

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Whenever you're inferring, you have the user path, but you are inferring the information need.

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Whenever you're engaging in prediction under Qi,

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you don't have the user path, but you have the information need.

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And so you are trying to predict the user path.

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And so Qi only discloses the use of proximal information in the prediction question, but not the inferring question.

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And where the two references overlap is only on the inferring question.

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And so for the board to take proximal information from the prediction question under Qi and import it into the inferring part of Qin, we think there's no evidence to support that.

[00:03:23] Speaker 00:
the board did not address that distinction in his final written decision and we address that in our patent owner's response at appendix 540 through 541.

[00:03:31] Speaker 00:
I have a housekeeping question.

[00:03:33] Speaker 02:
Does this argument in any way rely on our agreeing with your proposed claim of destruction?

[00:03:46] Speaker 00:
No, your honor, because even under the board's claim construction, what isn't the important part is the use of proximal information in the cluster.

[00:03:56] Speaker 00:
So the second reason why the board's obviousness analysis was erroneous, your honor, is because like in the, we didn't discuss the meta appeal, but in the export appeal, the board was faced with prior art that

[00:04:13] Speaker 00:
generally said to cluster with everything, all available information.

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And the only way to identify which information would be beneficial for clustering was if there was some hint in the prior art to say, we should cluster with proximal information.

[00:04:26] Speaker 00:
Now what XCORP used that Meta did not have is a reference called G4.

[00:04:31] Speaker 00:
G4 was cited in the original petition, but not as a ground for cancellation.

[00:04:36] Speaker 00:
It was cited for some other point.

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But in the reply brief that XCORP filed,

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used it to support the proposition that using proximal cues would be advantageous in predicting usage of a document collection of a website.

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That was improper.

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Under the Board's trial practice guides, a petitioner may not raise a new rationale to combine the prior art references in its reply brief.

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And whenever the Board ignored its own trial practice guide, it acted arbitrarily and capriciously.

[00:05:08] Speaker 00:
So that rounds enough to revert to a vacate remand, but the reference itself is waived because it was not instituted and it was not relied upon for this reason in the original petition.

[00:05:20] Speaker 00:
On to the third point on obviousness, Your Honor, third and final point on obviousness.

[00:05:25] Speaker 00:
The board sort of explained why its examiner got 103 obviousness wrong.

[00:05:29] Speaker 00:
Now, we talk about at pages 41 through 42 of our opening brief why essentially all the same prior art was before the examiner.

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Candidly, Chen was not in front of the examiner, but the board found that Chen was cumulative of here.

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And so as far as the meat on the bones of the obviousness analysis goes,

[00:05:50] Speaker 00:
all the same references, all the same type of prior argument.

[00:05:53] Speaker 00:
Was it a deference argument?

[00:05:54] Speaker 00:
Yes, Your Honor, this is our deference argument.

[00:05:56] Speaker 00:
And so what we would say is the examiner was closer in time on essentially the same prior art he found this combination not obvious, and the board should have at least explained why it was rejecting this examiner, and it did not do so in its final written decision, despite its... So there should be deference in this particular case, or there should be deference generally?

[00:06:19] Speaker 01:
I sure would have read you to be saying there should be a difference generally, but are you arguing this is only specific to this case?

[00:06:27] Speaker 00:
The way I would craft my argument, Your Honor, is saying that where essentially all the same prior art is before the examiner, the board must either defer to the examiner or explain why the examiner got the obviousness analysis wrong.

[00:06:43] Speaker 00:
And we also preserved that.

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And so we raised the objection as well, both at institution and in the merits briefing for the final written decision.

[00:06:52] Speaker 04:
What is your best support for that point you just made?

[00:06:56] Speaker 00:
Well, I'll give a start with the Administrative Procedures Act, Your Honor, which is that agency cannot issue an arbitrary and capricious decision-making.

[00:07:03] Speaker 00:
And we cite the Leggett decision out of the DC Circuit, which states that where an agency changes its mind without explaining itself, that's an arbitrary and capricious decision.

[00:07:13] Speaker 01:
Where the PTAP decision states its rationale, then it explains why the examiner got it wrong.

[00:07:25] Speaker 00:
Yeah.

[00:07:27] Speaker 00:
I understand what your honor is saying.

[00:07:29] Speaker 01:
But the reason why Congress passed the AIA was to have a second look at examiner's deference.

[00:07:36] Speaker 01:
Absolutely, your honor.

[00:07:38] Speaker 01:
And so there wouldn't be any pay tabs if your position was really right.

[00:07:43] Speaker 01:
But assuming there are, I mean, I swear, I'm trying to tease out of, because I kind of had a, I'm digging it here, I saw your argument.

[00:07:52] Speaker 01:
I'm sorry, I did, because I said it's nuts.

[00:07:55] Speaker 01:
I mean, of course,

[00:07:57] Speaker 01:
the examiner's deference gets over called when a board decision finds a patent invalid.

[00:08:04] Speaker 01:
So that's why I wonder whether you were saying there was something unique about this case.

[00:08:10] Speaker 01:
And I could better appreciate your argument if it was case-tied.

[00:08:16] Speaker 00:
Your Honor, I think what makes this case different is what we say about essentially all the same prior art.

[00:08:21] Speaker 00:
And where essentially all the same prior art was before the examiner as before the board, because in a lot of IPRs, you don't have the same prior art.

[00:08:28] Speaker 00:
There's additional references.

[00:08:29] Speaker 01:
I understand that.

[00:08:30] Speaker 00:
And so what we would say is, in a case like this one, the board has to explain why the examiner got it wrong.

[00:08:35] Speaker 01:
And I understand your honest point, which- And we don't even have to explain why the board's decision wasn't a sufficient explanation.

[00:08:43] Speaker 01:
If at all you're asking for an explanation, then one would say that a board decision is that explanation.

[00:08:51] Speaker 01:
It may be insufficient, but it is an explanation.

[00:08:54] Speaker 00:
I understood, Your Honor.

[00:08:55] Speaker 00:
As far as our final point on the ex-corp appeal, similar to the meta appeal, Your Honor, on the secondary considerations for the same reasons, and we would, in the ex-corp appeal,

[00:09:06] Speaker 00:
my friends on the other side say that we forfeit it.

[00:09:10] Speaker 01:
I see you also challenge the board's ultimate conclusion here that if there was some rating of even not very heavy-setting considerations, they need to do more than one sentence.

[00:09:20] Speaker 00:
For exactly the same reasons.

[00:09:21] Speaker 00:
We point to the Volvo case.

[00:09:23] Speaker 01:
And it's Volvo.

[00:09:24] Speaker 01:
It's either Volvo or... Volvo, Penta, I believe.

[00:09:26] Speaker 01:
It's the Volvo.

[00:09:27] Speaker 01:
I cited the wrong case to your adversary.

[00:09:29] Speaker 01:
I think I cited a different one, but it's Volvo.

[00:09:33] Speaker 00:
Yes, that's the case.

[00:09:35] Speaker 01:
That was handed down.

[00:09:36] Speaker 01:
Well, I think several months after.

[00:09:39] Speaker 00:
I think Volvo, Your Honor, was handed down between our opening brief and our reply brief, which is why we cited it.

[00:09:46] Speaker 01:
Well, there it was, August 24th.

[00:09:48] Speaker 01:
And that's the case.

[00:09:49] Speaker 01:
I was in work.

[00:09:51] Speaker 01:
Once this was gone, I should have apparently been running from the hotel.

[00:09:55] Speaker 00:
Yes, Your Honor, I will.

[00:09:56] Speaker 00:
If you have any questions, Your Honor, we ask the court to reverse or alternatively vacate and remail.

[00:10:06] Speaker 03:
I'm just going to jump straight in on the discussions we've been having.

[00:10:18] Speaker 03:
Let's go straight, if it's okay, I want to go straight to the secondary considerations and I had a little bit more time.

[00:10:24] Speaker 03:
and to take notes back there, I would suggest to you that the board, at least in the final written decision in our case, did a pretty painstaking job of explaining not just, am I talking loud enough for you?

[00:10:39] Speaker 03:
Not just why it felt like the secondary consideration evidence was not adequate, but also why it was not adequate in comparison to

[00:10:50] Speaker 03:
the motivation to combine evidence and the obvious misevidence.

[00:10:53] Speaker 03:
So you can find that at Appendix 83.

[00:10:57] Speaker 03:
The board begins by reciting the weighting in Claims 6 and 15 and noting that even with respect to those, the weighting is generic and it doesn't require the precise weighting alleged in the invention proposal.

[00:11:21] Speaker 02:
You need a little more time.

[00:11:22] Speaker 02:
What do you think is the specific difference between the weighting in the claims, 6 and 15, and the weighting in the invention proposal?

[00:11:34] Speaker 03:
I don't know that I can answer that precisely.

[00:11:36] Speaker 03:
It's just simply that it's generic.

[00:11:38] Speaker 03:
So we don't really know from those dependent claims precisely what the weighting is.

[00:11:43] Speaker 03:
But it's not as precise as what we have in the invention proposal.

[00:11:47] Speaker 03:
It's more specific.

[00:11:49] Speaker 03:
That's correct.

[00:11:49] Speaker 03:
That's correct.

[00:11:51] Speaker 01:
But the board went on, on page 84, and said... On the secondary consideration issue, we have the same nexus question, right?

[00:12:01] Speaker 01:
Whether claim 6 and 15 suffice?

[00:12:03] Speaker 01:
Correct, correct.

[00:12:04] Speaker 01:
And the board expressed... We have also the same, if there is some element of secondary considerations, even if light, the balancing, the ultimate balancing decision here is only one sentence, right?

[00:12:18] Speaker 03:
That's why I'm disagreeing with you, Judge Clevenger, is I think in the analysis of the secondary considerations, the board was careful to weigh not only why it was not good evidence of secondary considerations, why it lacked a nexus, but also why the obviousness determination outweighed it.

[00:12:38] Speaker 01:
But then how do you know what page all around the final conclusion on page 90?

[00:12:44] Speaker 01:
And it's going to be implicit, it's not just a, other than the conclusion.

[00:12:48] Speaker 01:
It isn't.

[00:12:48] Speaker 01:
Some of this, I have to, Collinger has to find it between the lines.

[00:12:52] Speaker 01:
I think I can get you better.

[00:12:54] Speaker 03:
If you look at Appendix 84, the board goes on to say, wait a minute, wait a minute.

[00:13:01] Speaker 01:
Appendix 84, the board talks about... There's a carryover paragraph and two new paragraphs, so where are we?

[00:13:13] Speaker 03:
It is at the very top, the first carryover paragraph, in any event.

[00:13:18] Speaker 03:
So the board has just... Is that accurate, sir?

[00:13:22] Speaker 03:
Yes, sir.

[00:13:22] Speaker 03:
If you look at 83 is what I pointed to first, that recited rating is generic, and that's distinguishing even the claims 6 and 15, and does not require the specific rating technique alleged in the invention proposal in any event.

[00:13:39] Speaker 03:
Petitioner shows that weighting different types of information differently based on the combined teachings of Chan and Chi would have been obvious as it would advantageously allow a user to calibrate the level of importance given that information is clustering algorithms.

[00:13:54] Speaker 03:
So they didn't go the next step and say, that means that that would chomp in any instance, but it's pretty close.

[00:14:02] Speaker 03:
Therefore, Pat Manor fails to establish a nexus

[00:14:06] Speaker 03:
But they've also found that there's other evidence in the prior art that would have left us in the same position.

[00:14:15] Speaker 03:
And then in Appendix 85, the board challenges the weight of the invention proposal.

[00:14:22] Speaker 01:
The invention proposal does not show ... When the board is sitting on page 83, that's section 15 of the

[00:14:33] Speaker 01:
don't actually line up with the algorithm that apparently is in the distortion statement?

[00:14:39] Speaker 01:
That's what the board found.

[00:14:40] Speaker 01:
Then, are you arguing that that means that 6 and 15 are just irrelevant?

[00:14:46] Speaker 01:
What I'm arguing is that the board is finding even though... I mean, I'm trying to actually argue both ways to say that it's very weak evidence.

[00:14:55] Speaker 03:
Correct.

[00:14:55] Speaker 01:
And therefore, it shows that we're waiting.

[00:14:59] Speaker 01:
But I couldn't tell whether you were also trying to argue that the fact that there's no alignment, there's no alignment between 6 and 15 and the disclosure statement because they're talking about two different things.

[00:15:11] Speaker 03:
Correct.

[00:15:11] Speaker 03:
I think both.

[00:15:12] Speaker 03:
I think the board was doing both at the same time.

[00:15:14] Speaker 03:
The board said this isn't evidence.

[00:15:16] Speaker 03:
It doesn't get you there because it doesn't directly relate.

[00:15:19] Speaker 03:
But even if it did, it wouldn't be stronger.

[00:15:24] Speaker 01:
If there's no nexus for that reason,

[00:15:27] Speaker 01:
What about the next page?

[00:15:29] Speaker 02:
And page A85.

[00:15:32] Speaker 02:
I think you were getting to the, there's nothing surprising by way of accuracy or otherwise on page A85.

[00:15:39] Speaker 02:
Correct.

[00:15:39] Speaker 02:
For the merits.

[00:15:40] Speaker 03:
Correct.

[00:15:41] Speaker 02:
So then you were assuming there's a nexus.

[00:15:43] Speaker 03:
Absolutely.

[00:15:43] Speaker 03:
That the board went on and said, this is not strong evidence, even if it's evidence, it's not strong evidence.

[00:15:49] Speaker 02:
So they didn't do the nice... So just to be clear, you're relying on, is there anything else on page A85 other than what I pointed out, which is

[00:15:57] Speaker 02:
about five lines from the bottom of that first full paragraph.

[00:16:01] Speaker 03:
Right.

[00:16:01] Speaker 03:
It starts with the invention proposal, does not show that using possible information provided anything surprising.

[00:16:09] Speaker 03:
And then it takes issue with the numbers.

[00:16:12] Speaker 03:
There's also a finding at Appendix 79, which is kind of the beginning of this section, that says, by the way, this is not new.

[00:16:28] Speaker 02:
This is about the concession about what a person of ordinary skill knew in the late 1990s or something else.

[00:16:37] Speaker 03:
Right.

[00:16:37] Speaker 03:
Well, it says more that the invention proposal states that the basic idea is that terms found, however Dr. Martin concedes, right, that in the late 1990s, person of ordinary skill would have already understood that.

[00:16:49] Speaker 03:
And then it goes on on page 80.

[00:16:51] Speaker 03:
Here, 2002 shows that using content words in general to obtain accurate clustering results is far from surprising.

[00:16:58] Speaker 03:
Intuitively, the words that the user sees during each session are good indicators of their information need.

[00:17:05] Speaker 03:
So I would submit to you that the board was relatively thorough from a final written decision standpoint as far as trying to actually

[00:17:14] Speaker 03:
analyze this evidence and give it weight, not just whether it met the nexus, which it found it didn't, but even if it did, the... Help me out.

[00:17:23] Speaker 01:
I was trying to... I find reading these two-word decisions very difficult to tease out exactly what the word is saying and what they're holding, and whether you feel the same way.

[00:17:33] Speaker 01:
But when they say on page 83 of the decision, the invention, the proposal, the libel, and not commensurate in scope,

[00:17:43] Speaker 01:
When you say it's not commensurate in stroke, that means we don't have to look at the secondary considerations at all, right?

[00:17:49] Speaker 01:
Because, right?

[00:17:51] Speaker 03:
Am I correct about that?

[00:17:52] Speaker 03:
I think that's correct.

[00:17:53] Speaker 01:
And I can read what the board said was there is no nexus period.

[00:17:59] Speaker 03:
That is what the board concluded, but it also found it kind of hedges, right?

[00:18:05] Speaker 03:
And I agree with you, it's frustrating every time I read it.

[00:18:07] Speaker 01:
The problem is this, the commensurate width

[00:18:12] Speaker 01:
triggers a presumptive, right, nexus that can be rebutted.

[00:18:19] Speaker 01:
Clear?

[00:18:20] Speaker 01:
Right.

[00:18:20] Speaker 01:
If the presumptive nexus is not triggered, a patent owner can still argue secondary conservation if they can, without the benefit of a presumption, show nexus.

[00:18:32] Speaker 01:
That's right.

[00:18:33] Speaker 01:
Is that correct?

[00:18:33] Speaker 01:
That's right.

[00:18:34] Speaker 01:
OK.

[00:18:34] Speaker 01:
So why shouldn't we leave the board decision for our purposes to say they found a period that there was

[00:18:42] Speaker 01:
no commensurate with the scope because of the Gerard versus Pacific, but that in terms of reading this information proposed by the patent owner having failed to get a presumptive nexus connection, we're going to say they don't get an actual one.

[00:19:02] Speaker 01:
Isn't that how we should be reading this?

[00:19:05] Speaker 03:
Yes, but I think to the extent, if you look at the conclusory paragraph,

[00:19:10] Speaker 03:
the board was trying to cover every possibility that this court could analyze it under, because they say even if some weak nexus exists, petitioners showing of obviousness outweighs the evidence of non-obviousness.

[00:19:26] Speaker 04:
Do you contend that in addition to looking at one another's presumption of nexus, the board also analyzed whether or not there was actual nexus?

[00:19:35] Speaker 03:
Correct.

[00:19:36] Speaker 03:
Correct.

[00:19:37] Speaker 03:
And I think the board tried to find it every way it could, right?

[00:19:41] Speaker 03:
That there's no presumption, there's no nexus, even if there's a weak nexus, it's outweighed.

[00:19:46] Speaker 01:
Well, you were wrong in the other case.

[00:19:47] Speaker 01:
The other case in the decision doesn't have this argument that 6 and 15 don't count because of the difference between generic and specific, right?

[00:19:56] Speaker 01:
That's not in that case.

[00:19:58] Speaker 01:
So we have to decide both cases.

[00:20:00] Speaker 01:
Correct.

[00:20:01] Speaker 01:
And we can't attribute this reasoning to that other case.

[00:20:05] Speaker 01:
whether or not the presumptive nexus is still alive based on 6 and 15.

[00:20:11] Speaker 03:
Correct.

[00:20:11] Speaker 03:
But if you find obviousness, if you affirm the obviousness determination in this case, there's no reason to also reach the other case.

[00:20:20] Speaker 01:
One case covers all the claims and one doesn't.

[00:20:22] Speaker 03:
This case covers all the claims?

[00:20:23] Speaker 03:
Correct.

[00:20:24] Speaker 03:
This case addresses all of the claims.

[00:20:26] Speaker 03:
I'll call it the Medi-case.

[00:20:28] Speaker 03:
The Medi-case did not address as about half of them comparatively.

[00:20:33] Speaker 03:
I want to raise one more dog bite style argument with respect to the secondary considerations, and that's the Glasgow case.

[00:20:41] Speaker 03:
If you look at the Glasgow case, if you look at the outcome in Glasgow,

[00:20:47] Speaker 03:
even though they found error that the board should have weighted, at least given some weight, although minimal weight, to the impact on the dependent claims, they still affirmed because they found, as in this case, the evidence was so clearly in one direction there was no sense to fend it back.

[00:21:05] Speaker 03:
But here, I gave you better reasons.

[00:21:09] Speaker 03:
I gave you reasons clearly in the final written decision to support that.

[00:21:13] Speaker 03:
Would your honors like me to reach any of the other issues or

[00:21:18] Speaker 04:
I have at least one housekeeping question for you.

[00:21:21] Speaker 04:
It's similar to the housekeeping question I asked opposing counsel before.

[00:21:25] Speaker 04:
I just want to make sure I know the universe of issues we actually need to decide versus which issues are basically undisputed and agreed on.

[00:21:32] Speaker 04:
My understanding is that all of the limitations the parties agree on are disclosed, with the exception of possibly the proximal information limitation that I think opposing counsel was arguing.

[00:21:43] Speaker 04:
Is that your take?

[00:21:44] Speaker 04:
Yes.

[00:21:46] Speaker 04:
And then the other issues that we would need to reach would be secondary considerations, and possibly motivation combined.

[00:21:52] Speaker 04:
Is that what you would say, or what would you say would be the other issues?

[00:21:56] Speaker 03:
That's my understanding of Xerox's position today, is that we're left with a substantial evidence review of motivation combined, and then whether there were adequate findings on the secondary considerations, which hopefully I've answered adequately for the court.

[00:22:12] Speaker 03:
If there are no further questions, we'd ask the court to address.

[00:22:15] Speaker 03:
Thank you, Ms.

[00:22:15] Speaker 03:
McFaumus.

[00:22:18] Speaker 02:
Mr. Ryman.

[00:22:26] Speaker 04:
And, counsel, can you start by answering the same question I just asked the opposing counsel so we can get a moving of the minds on what issues need to be decided by this Court?

[00:22:35] Speaker 04:
Yes, Your Honor.

[00:22:35] Speaker 00:
So, in the Ex Court case,

[00:22:42] Speaker 00:
So in the X-Corp case, the motivation to combine QIIs, proximal information with CHIN, that would need to be decided.

[00:22:50] Speaker 00:
The use of QIIFOR, the waiver issue, that would need to be decided because it's relevant also to motivation to combine and also reasonable expectation of success.

[00:23:00] Speaker 00:
Because QIIFOR is what X-Corp relied on to give a hint in the prior art that combining with proximal information would be beneficial.

[00:23:08] Speaker 00:
And that goes to both those issues.

[00:23:11] Speaker 00:
And then finally, there would be secondary evidence of non-obviousness, Your Honor.

[00:23:18] Speaker 00:
That would need to be decided.

[00:23:19] Speaker 00:
In just one brief point on the secondary considerations of non-obviousness, the... Wait, before you go to that.

[00:23:26] Speaker 04:
Yes, Your Honor.

[00:23:26] Speaker 04:
So you also agree in this case that all of the limitations are disclosed with the exception, potentially, of your argument regarding proximal information?

[00:23:35] Speaker 00:
Yes, Your Honor.

[00:23:36] Speaker 02:
And I have another housekeeping question.

[00:23:38] Speaker 00:
Yes, Your Honor.

[00:23:38] Speaker 02:
Which is that, do you agree with opposing counsel that this case includes all of the claims and then some additional ones that are at issue in the other case?

[00:23:50] Speaker 00:
Yes, Your Honor.

[00:23:51] Speaker 04:
OK, thank you.

[00:23:52] Speaker 00:
The final point on secondary considerations, Your Honor, we've been discussing the Classco case.

[00:23:58] Speaker 00:
On six and fifteen are narrower than the independent claims and so I think the issue with those is whether those bring about the presumption of nexus, not so much the way.

[00:24:07] Speaker 02:
Just to be clear, when I looked back at class school I didn't see where it said anything about a presumption of nexus.

[00:24:13] Speaker 02:
It wasn't dealing with the presumption.

[00:24:15] Speaker 02:
Do you agree with that?

[00:24:17] Speaker 00:
No, Your Honor.

[00:24:18] Speaker 02:
With respect to those dependent claims.

[00:24:21] Speaker 00:
So the way we read CLASCO, Your Honor, is finding that where the secondary evidence goes to the dependent claims, those claims are necessarily narrower than the independent claims, and the presumption of nexus must be presumed.

[00:24:33] Speaker 02:
I guess I'll just look at it.

[00:24:36] Speaker 02:
But for what it's worth, I didn't see anything about presumption in CLASCO with respect to the discussion you're relying on.

[00:24:42] Speaker 00:
Understood, Your Honor.

[00:24:44] Speaker 00:
Just the final piece on the

[00:24:46] Speaker 00:
On the secondary considerations, Your Honor, my friend on the other side pointed to Appendix 85.

[00:24:54] Speaker 00:
Let me pull that back up.

[00:25:07] Speaker 00:
Middle of the page, Appendix 85, the board states, the invention proposal does not show that using proximal information provided anything surprising in the way of accuracy or otherwise, where Dr. Martin calculates a 97.1% accuracy when combining proximal scent with content in the in-link modality.

[00:25:29] Speaker 00:
And then it goes on to the next page.

[00:25:31] Speaker 00:
And what the board is basing that on is the disclosure that

[00:25:36] Speaker 00:
Other experiments showed a accuracy as high as 99%.

[00:25:40] Speaker 00:
And the reason why we say that's not an apples to apples comparison is because what the invention disclosure talks about is improving accuracy while reducing data model complexity.

[00:25:51] Speaker 00:
You could have a system that was 100% accurate, that was very large, very weighty data-wise, very complex,

[00:25:59] Speaker 00:
What the inventors were trying to do was to reduce the data model complexity.

[00:26:03] Speaker 00:
And the invention disclosure talks about that.

[00:26:05] Speaker 02:
Is that captured in the claims?

[00:26:08] Speaker 00:
No.

[00:26:08] Speaker 00:
It is not explicitly captured in the claims, Your Honor.

[00:26:12] Speaker 00:
But that's why we say at what my friends point to, that's not an apples to apples comparison.

[00:26:16] Speaker 00:
What they were trying to do is preserve accuracy while reducing data model complexity.

[00:26:21] Speaker 00:
Any further questions, Your Honor?

[00:26:22] Speaker 00:
We ask for reverse and alternatively, vacate and remail.

[00:26:27] Speaker 02:
Thank you.

[00:26:28] Speaker 02:
Thank you.

[00:26:29] Speaker 02:
We thank the Council for their arguments, and the case will be submitted as is.