[00:00:00] Speaker 02:
Our next case on the docket is Xerox Corporation versus Meta Platforms, appeal number 23-1714.

[00:00:07] Speaker 02:
Mr. Ryman, you can proceed when you're ready.

[00:00:14] Speaker 02:
Thank you, Your Honor.

[00:00:16] Speaker 00:
May it please the Court?

[00:00:17] Speaker 00:
My name is Kyle Ryman, and I am representing Xerox Corporation.

[00:00:21] Speaker 00:
Xerox is appealing the Board's cancellation of the 475 Patents Challenge claims during Inter partes review.

[00:00:28] Speaker 00:
The board's decision should be reversed or at minimum vacated and remanded for three reasons.

[00:00:34] Speaker 00:
First, the board misconstrued proximal information.

[00:00:37] Speaker 00:
Second, the board erred in its obviousness analysis.

[00:00:41] Speaker 00:
And third, the board failed to properly consider Xerox's evidence of unexpected results.

[00:00:47] Speaker 00:
I'll start with claim construction.

[00:00:49] Speaker 00:
Proximal information requires three aspects.

[00:00:52] Speaker 00:
It requires information near or derived from a link.

[00:00:56] Speaker 00:
That's the proximity requirement.

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That information must characterize the content accessible through the link.

[00:01:02] Speaker 00:
That's a characterization requirement.

[00:01:04] Speaker 02:
What do you think is the best place in this specification for your characterization argument?

[00:01:11] Speaker 00:
Your Honor, we think the best place is Appendix 74.

[00:01:13] Speaker 00:
That is Column 3, Lines 43 through 45.

[00:01:21] Speaker 00:
Which lines?

[00:01:23] Speaker 00:
Lines 43 through 45, Your Honor.

[00:01:33] Speaker 02:
Well, what about the fact that it says in various exemplary embodiments, and it says such as, it says, I mean, I'm just having a hard time reading this and understanding it to expressly define or even implicitly define proximal cue information to require that it be as limited as you're suggesting.

[00:01:59] Speaker 00:
Sure, Your Honor.

[00:02:00] Speaker 00:
So we think that what the specification is shedding light on is the claim's definition.

[00:02:04] Speaker 00:
It's not necessarily like they're using explicit words like define.

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However, it is what the specification does say is that is why it's useful.

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As we cite in our gray brief of the trustees of Columbia case, it's not required for the

[00:02:19] Speaker 00:
for the specification to explicitly define a term.

[00:02:23] Speaker 00:
I agree with you.

[00:02:24] Speaker 02:
I'm sorry I used that phrase.

[00:02:27] Speaker 02:
Please understand that I'm not saying it has to expressly define.

[00:02:29] Speaker 02:
What I'm looking at is I look at your specification and I see that it gives examples of what proximal information is.

[00:02:36] Speaker 02:
and some of it, it's all definitely information that's near the link or brought up as part of the link, but there is, I don't see where it's required to meet the other limitations that you have in your proposed definition.

[00:02:52] Speaker 02:
There's examples, for example, of having the word A, and that would not meet your requirement.

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So I think that is

[00:03:00] Speaker 02:
the characteristic of some proximal information, but it's not necessarily a characteristic of all proximal information in the specification.

[00:03:11] Speaker 02:
So what is your response to that observation by me?

[00:03:13] Speaker 00:
So direct to that, Your Honor.

[00:03:15] Speaker 00:
So the Board discounted the characterization requirement, for example, with the word A. We would disagree that that does not characterize at all.

[00:03:23] Speaker 00:
The letter A is in the context of buy a gift certificate.

[00:03:28] Speaker 00:
When associated with a link, and I'll touch on the association

[00:03:30] Speaker 00:
requirement here in a moment, that provides some amount of characterization that on the distal side of that link, there is at least one gift certificate to be purchased.

[00:03:40] Speaker 02:
We didn't argue that there... Under that interpretation, what wouldn't be a characterization?

[00:03:47] Speaker 00:
Well, Your Honor, so we never argued before the board that there has to be some absolute degree of characterization.

[00:03:53] Speaker 00:
It doesn't have to characterize 100 percent.

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What we said is there has to be some amount of characterization.

[00:03:59] Speaker 03:
Do you agree that the board found obviousness even under Xerox's claim construction?

[00:04:05] Speaker 00:
Yes, I do, Your Honor.

[00:04:07] Speaker 01:
That said, I didn't see anywhere in the board decision that there would be here a defense from you to the argument that it doesn't make any difference what the claim construction is.

[00:04:24] Speaker 01:
The board is in essence saying that claim construction issues are relevant because even under your claim construction, all of our analysis under 113 is the same.

[00:04:34] Speaker 01:
And I didn't see any of the part of our references or any of the motivation behind any of those arguments depended on your different claim construction.

[00:04:44] Speaker 00:
So, Your Honor, our defense to the obviousness analysis is independent of claim construction.

[00:04:48] Speaker 00:
We think that we win.

[00:04:49] Speaker 01:
We think that the board... My point is, unless you

[00:04:53] Speaker 01:
explain why the board was wrong in saying that the office's analysis is the same regardless of the claim construction, then why do I care whether the board made a mistake in claim construction?

[00:05:07] Speaker 01:
It's a great classroom problem, but in the real world, it's not a problem because we have a hold in here that you didn't challenge.

[00:05:14] Speaker 00:
So, Your Honor, if that's the court, you could, the way the court could write its opinion is to say we looked at the secondary considerations.

[00:05:20] Speaker 01:
We did not challenge, I mean,

[00:05:22] Speaker 01:
Do you challenge the argument that even under the law of claim construction, there's a prima facie case?

[00:05:31] Speaker 00:
I may have been a little imprecise a moment ago.

[00:05:32] Speaker 00:
So whenever we say that the board improperly gap-filled with the procedure's knowledge to find proximal information, that depends on winning the claim construction argument.

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Because what the board found within a procedure's general knowledge is the association requirement.

[00:05:46] Speaker 01:
At the very end of the day, why do we need to decide the claim construction issue?

[00:05:51] Speaker 01:
So Your Honor, you would need to... Because we can say the prima facie case is the same either way, because we don't change that.

[00:05:58] Speaker 01:
So then we'll address secondary consideration, then secondary consideration, and then depending on the court resources.

[00:06:03] Speaker 00:
So not quite, Your Honor.

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So it depends on which part of the prima facie analysis the court addresses.

[00:06:09] Speaker 01:
So on the gap... You're not telling me you made any challenge at all to the proposition that the prima facie case is the same regardless of the...

[00:06:19] Speaker 02:
We have various arguments, new ways on appeal.

[00:06:23] Speaker 02:
Do any of them rely on our adoption of your claim construction?

[00:06:30] Speaker 00:
Not for characterization, for the association requirement there, Your Honor.

[00:06:34] Speaker 01:
Why does it say that precisely in your mid-brief?

[00:06:38] Speaker 01:
Excuse me, you said that it was in the brief.

[00:06:42] Speaker 01:
Now it's the time to tell me.

[00:06:44] Speaker 00:
Yes, Your Honor.

[00:06:44] Speaker 00:
So where we challenge

[00:06:46] Speaker 00:
what a posita would have known from the general... So to be clear for the court, we do not use the explicit phrase that we are challenging the premium fashion case of obviousness and what a posita would have known.

[00:07:01] Speaker 00:
We don't use the phrase explicitly that this depends on claim construction.

[00:07:04] Speaker 00:
But those arguments do depend on the association requirement.

[00:07:08] Speaker 00:
So... How are we to know that when we look at your brief?

[00:07:13] Speaker 00:
So Your Honor, it's where we're talking about what the...

[00:07:18] Speaker 00:
I understand, Your Honor.

[00:07:20] Speaker 00:
So what we would say is, direct to the court's question, we need to win the association requirement to win on the obviousness analysis with the board's improper gap filling for what a posita would have known generally in the art.

[00:07:38] Speaker 00:
Because what the board found in what Meadow's references do disclose are that words near text was in the art.

[00:07:47] Speaker 00:
What's not in Meadow's references.

[00:07:49] Speaker 02:
Could you tell me exactly what pages of your brief or which exact issue in the Table of Contents I am to understand is an argument that you make only if you win on your claim construction?

[00:08:04] Speaker 02:
So it's very clear to us.

[00:08:06] Speaker 00:
So, Your Honor, we would say that our brief 35, where we are discussing what the board found was suggested in the prior art, and then specifically our discussion of the extrapolation of what was found in the prior art.

[00:08:26] Speaker 00:
That's the Orendi case we discussed at pages 39 through 40 of our brief.

[00:08:31] Speaker 00:
We would say that under Orendi, the board improperly extrapolated

[00:08:35] Speaker 01:
from what was disclosed in the references to find... That's teasing a lot of information out of general statements, isn't it?

[00:08:43] Speaker 01:
Well, we would say yes, Your Honor.

[00:08:44] Speaker 01:
We believe the murder.

[00:08:45] Speaker 01:
I mean, you cite page 35.

[00:08:47] Speaker 01:
You want to read the words you're talking about?

[00:08:50] Speaker 01:
First paragraph, second paragraph, there are two paragraphs on page 35.

[00:08:59] Speaker 01:
And what we're looking for is an argument to say the claim instruction does matter for purposes of the prima facie case.

[00:09:06] Speaker 00:
Well, Your Honor, we do not have a statement that clear in fairness to the court.

[00:09:10] Speaker 00:
So not that clear?

[00:09:11] Speaker 00:
Well, no.

[00:09:12] Speaker 00:
We do not use those precise words.

[00:09:13] Speaker 01:
OK, so tell me what on page 35 I should interpret to be words that convey the information that I just spoke of.

[00:09:29] Speaker 00:
So Your Honor, we're on 35, the first paragraph, where we're citing Appendix 41.

[00:09:33] Speaker 00:
What the board stated was that, quote, the combination of here, Chang, and Callahan suggests.

[00:09:39] Speaker 01:
This is in the parenthetical?

[00:09:41] Speaker 00:
Yes, Your Honor.

[00:09:45] Speaker 01:
Is there anywhere in the political?

[00:09:47] Speaker 01:
That's where we've observed this argument, in that parenthetical?

[00:09:52] Speaker 00:
Well, Your Honor, we think that we argued it throughout.

[00:09:54] Speaker 02:
okay understood your honor but what i would say is regardless of claim construction on the motivation to combine what we would say is under the person can i ask you something just to be clear here at oral argument today you are conceding that if we don't agree with your claim construction then you would not make the arguments on page thirty five is that what you're saying your honor if the court did not

[00:10:18] Speaker 00:
agree with us on claim construction, then what we would concede is that our arguments on the gap filling, the improper gap filling, and I want to say that is, I'm looking at the section so I can get the court something.

[00:10:35] Speaker 01:
Why not your argument on the prima facie case?

[00:10:38] Speaker 01:
Where have you preserved any element of the prima facie case argument?

[00:10:42] Speaker 01:
Saying, well, we agree here on one point,

[00:10:47] Speaker 01:
We're preserving this.

[00:10:49] Speaker 00:
Well, Your Honor, I don't think our motivation to combine argument depends on the claim construction piece or the reasonable expectation of success.

[00:10:56] Speaker 01:
So the motivation to combine argument is to be either way.

[00:10:59] Speaker 01:
The motivation to combine is regardless of which claim construction we accept.

[00:11:05] Speaker 01:
Yes, Your Honor.

[00:11:06] Speaker 01:
Well, that's what we're trying to establish here.

[00:11:08] Speaker 01:
We're using up a lot of very valuable argument time on the point that you could have conceded very easily, which is to say the claim construction argument is academic.

[00:11:17] Speaker 01:
move on to the secondary considerations where you maybe have a red, but you're almost out of time.

[00:11:23] Speaker 00:
Understood, Your Honor.

[00:11:24] Speaker 03:
So what we would say on the Pringles Act... Unfortunately, I've got to ask you one more question, and then we'll get to move on.

[00:11:30] Speaker 03:
Just in terms of what you're conceding, it sounds like you're conceding that all of the limitations were disclosed except for potentially proximal information, is that correct?

[00:11:41] Speaker 03:
Yes, Your Honor.

[00:11:42] Speaker 03:
Okay.

[00:11:42] Speaker 03:
And then of course we've had the discussion about the board actually

[00:11:46] Speaker 03:
adopting Xerox's construction and finding the obviousness, even with that Xerox construction in play.

[00:11:55] Speaker 00:
I'm sorry, I didn't quite follow the end of that, Your Honor.

[00:11:56] Speaker 03:
Maybe I'm making a statement to you.

[00:11:58] Speaker 03:
Maybe I didn't pose a question.

[00:11:59] Speaker 03:
Let me actually give you a question on this.

[00:12:01] Speaker 03:
Are your only reasons why you're contending that obviousness should not apply are going to be now left motivation to combine?

[00:12:10] Speaker 03:
And I think you said one other thing.

[00:12:13] Speaker 00:
So three reasons, Your Honor.

[00:12:14] Speaker 00:
Motivation to combine, reasonable expectation of success, and secondary considerations of non-obviousness.

[00:12:20] Speaker 03:
You can go ahead and turn to those.

[00:12:21] Speaker 00:
So briefly, Your Honor, on motivation to combine, what we would say is that the board had additional explanation that it needed to do.

[00:12:28] Speaker 00:
Under the Portional Web case, this is complicated technology.

[00:12:31] Speaker 00:
The board needed to do more than just uncritically accept summaries of Meadow's arguments.

[00:12:36] Speaker 00:
The summaries also fail under this court's decision in re-invasive, where the court said that is not substantial evidence to summarize a party's arguments.

[00:12:45] Speaker 00:
On obvious-to-try theory, Your Honor, the Greenenthal case, for obvious-to-try, there need to be a finite number of solutions for a procedure to try.

[00:12:53] Speaker 00:
And here, there is nothing in the record to support there are a finite number of solutions, and so the board relied on... That requires us to agree that...

[00:13:01] Speaker 02:
the board imposed an obvious-to-try analysis, right?

[00:13:06] Speaker 00:
Your Honor, yes, and my friends on the other side say the board did not use those words, but the board did say that it was relying on, quote, testing or otherwise.

[00:13:13] Speaker 03:
Can you put us to your best page to support that an obvious-to-try argument was actually discussed by the board?

[00:13:21] Speaker 03:
Sure, Your Honor.

[00:13:25] Speaker 00:
So on page

[00:13:33] Speaker 00:
So on page 52 of our blue brief, we cite Appendix 32.

[00:13:41] Speaker 00:
So Appendix 32, Your Honor, it says that a posita would be able to include proximal information, quote, in an appropriate manner.

[00:13:49] Speaker 00:
And then it adds the phrase, test through testing or otherwise.

[00:13:53] Speaker 00:
And so we think functionally, the board relied on obvious theory relying on testing or otherwise.

[00:14:00] Speaker 02:
Your Honor, with secondary... Phrase, testing, or otherwise.

[00:14:03] Speaker 00:
Yes, Your Honor.

[00:14:04] Speaker 00:
I think that's a class indication.

[00:14:05] Speaker 02:
And that doesn't relate to reasonable expectation of success.

[00:14:08] Speaker 00:
Not in the meta appeal, Your Honor.

[00:14:10] Speaker 00:
On secondary considerations, Your Honor, we would say we go through the Classco case, the Applebee Classco case, and we think under that case, where the embodiment is narrower than the claims, a presumption of nexus must be presumed.

[00:14:24] Speaker 00:
And once the court makes that finding under the court's Bobo decision,

[00:14:28] Speaker 00:
The board did no explanation for its weighing of the evidence.

[00:14:31] Speaker 02:
And so at minimum... What do we do with the fact that your patent owner response has only one paragraph directed to reasonable expectation of success?

[00:14:42] Speaker 02:
And what is in that one paragraph?

[00:14:45] Speaker 02:
What should I point to for understanding?

[00:14:47] Speaker 02:
I'm sorry, on your secondary considerations.

[00:14:50] Speaker 02:
I apologize.

[00:14:51] Speaker 02:
Not reasonable expectation of success.

[00:14:53] Speaker 02:
But what am I to understand to be the unexpected results?

[00:14:57] Speaker 00:
The unexpected results are the statistics, Your Honor.

[00:14:59] Speaker 00:
The improvements in accuracy and reductions in data model complexity resided in the obituary.

[00:15:05] Speaker 02:
Could you point that out to me in the patented response paper?

[00:15:07] Speaker 02:
Honestly, it's at page, I think it's 61.

[00:15:11] Speaker 02:
That's what I was looking at.

[00:15:14] Speaker 02:
Several secondary considerations are relevant here.

[00:15:18] Speaker 02:
It says, first, the inventor's results were unexpected and resolved an ongoing need for a better solution.

[00:15:24] Speaker 02:
And then most of the rest of the paragraph is talking about what seems to be more like need for a better solution.

[00:15:33] Speaker 00:
Are you looking at page 61 of the opening brief?

[00:15:35] Speaker 02:
No, I'm sorry.

[00:15:37] Speaker 02:
It's appendix page 392.

[00:15:38] Speaker 02:
It's page 61 of your patented response brief.

[00:15:49] Speaker 02:
I'm just trying to understand what the unexpected results were.

[00:15:59] Speaker 02:
Yeah, yeah, exactly.

[00:16:01] Speaker 02:
It says the inventor's results weren't expected, but then there's nothing developing that.

[00:16:11] Speaker 00:
You're looking at a PINIX 392, Your Honor?

[00:16:14] Speaker 00:
Yes.

[00:16:14] Speaker 01:
Starts on 391.

[00:16:16] Speaker 01:
secondary considerations.

[00:16:18] Speaker 00:
So Your Honor, on appeal, we did not raise all the secondary considerations.

[00:16:21] Speaker 00:
So just to clarify the court, now as far as the meat on the bones point, what I would suggest for the court is that we did chart at the beginning of our patent owner's response, we charted how the invention proposal mapped on to our claims.

[00:16:37] Speaker 00:
And then, so that's that appendix.

[00:16:41] Speaker 01:
There is some further meat on the bones on the secondary consideration argument.

[00:16:46] Speaker 00:
Your Honor, I believe I'm out of time.

[00:16:48] Speaker 00:
May I respond to the court's question?

[00:16:50] Speaker 00:
Yes, please.

[00:16:50] Speaker 00:
So you're looking for the meat on the bones and the argument, Your Honor?

[00:16:54] Speaker 01:
I believe that was the presiding judge's question, was very much, you sufficiently raised your secondary consideration argument.

[00:17:18] Speaker 01:
Your Honor, I think where we... Was it actually the final paragraph of your patented response?

[00:17:24] Speaker 00:
Yeah, Your Honor, what we pointed to for the meat on the bones is we pointed to Dr. Martin's declaration.

[00:17:29] Speaker 00:
What he was talking about is how the inventors and their colleagues had... Was it originally incorporated by reference?

[00:17:36] Speaker 00:
Well, we did quote Dr. Martin, Your Honor, so in the middle of that paragraph, we say, as Dr. Martin explains... I saw that.

[00:17:43] Speaker 00:
Yes, Your Honor.

[00:17:45] Speaker 02:
But that shows there's an unresolved need for a better solution.

[00:17:49] Speaker 02:
And that is not the secondary consideration that I see you raising on appeal.

[00:17:56] Speaker 02:
Am I wrong?

[00:17:57] Speaker 00:
You are correct, Your Honor, that that quote from Dr. Martin does state that it is relating to an unresolved need.

[00:18:06] Speaker 00:
But a little bit higher, what we are citing to that id, that paragraph 145, that is all Dr. Martin's testimony.

[00:18:13] Speaker 00:
So if the question is, did we put the percentages in this paragraph, the answer is no, we did not.

[00:18:19] Speaker 02:
I just am having a hard time seeing where the board erred on this when there is no meat on the bones, as Judge Clemeter so aptly put it.

[00:18:28] Speaker 00:
Understood, Your Honor.

[00:18:29] Speaker 01:
All right.

[00:18:30] Speaker 01:
Well, thank you.

[00:18:31] Speaker 00:
Thank you, Your Honor.

[00:18:32] Speaker 01:
I just have one question.

[00:18:33] Speaker 01:
Can we turn it off after we have to use this time?

[00:18:36] Speaker 01:
One question about the Plaintiff Instruction.

[00:18:39] Speaker 01:
My understanding is that while your impressions are

[00:18:43] Speaker 01:
different claim for structural and proximal information is that without it, the definition of multimodal information swells proximal.

[00:18:54] Speaker 01:
That's absolutely right, Your Honor.

[00:18:57] Speaker 01:
Otherwise, what's the difference between the two?

[00:19:02] Speaker 00:
That's exactly right, Your Honor.

[00:19:04] Speaker 00:
And that's why we see a distinction between the two.

[00:19:09] Speaker 01:
That type of a sentence,

[00:19:11] Speaker 01:
to set up your argument as to why you need the claim destruction, whether it rivets one's attention, and should it rely on a little sooner judge to have to figure that out.

[00:19:21] Speaker 01:
Understood, Your Honor.

[00:19:22] Speaker 00:
Thank you.

[00:19:26] Speaker 04:
Good morning.

[00:19:33] Speaker 04:
So I want to make sure that I'm being the most helpful.

[00:19:35] Speaker 04:
So should I go straight to the secondary considerations piece?

[00:19:39] Speaker 04:
That would be great.

[00:19:40] Speaker 04:
Okay, thank you very much, Your Honors.

[00:19:42] Speaker 04:
So with respect to the secondary considerations piece, I think your honor's nailed it.

[00:19:47] Speaker 04:
There's really no meat on the bones in the argument presented here on appeal.

[00:19:50] Speaker 04:
And in fact, there is substantial evidence in the record.

[00:19:53] Speaker 01:
That the board wouldn't reject the whole point on that ground.

[00:19:57] Speaker 01:
That's right.

[00:19:57] Speaker 01:
And so it would be a little aggressive of us to say, well, we're going to look at the whole secondary consideration issue because there were no meat on the bone.

[00:20:04] Speaker 01:
That's fine, your honor.

[00:20:05] Speaker 01:
And in fact, we're not going to get to the guts of it.

[00:20:07] Speaker 01:
Absolutely happy to do so.

[00:20:09] Speaker 01:
Why don't you talk about CLASCO?

[00:20:12] Speaker 01:
So here, for example, we're talking about whether or not there is this presumptive connection of nexus, right?

[00:20:19] Speaker 04:
Right.

[00:20:19] Speaker 04:
And so here, Your Honor, there's absolutely no nexus whatsoever.

[00:20:23] Speaker 04:
And so let me start with there is no nexus at all, even whether or not it's swallowed or not swallowed.

[00:20:30] Speaker 01:
That's because you're telling me there's no product, and that's just an invention disclosure, and that's too vague.

[00:20:35] Speaker 04:
That's part of it.

[00:20:36] Speaker 04:
That's only part of it, though.

[00:20:37] Speaker 04:
The second part of it, which the board specifically found, and this is in Appendix at page 52, is that the information disclosure constantly talks about the demand to wheat the proximal cent terms.

[00:20:51] Speaker 04:
And he cites to Appendix 2731 through 2734.

[00:20:56] Speaker 04:
and I have that here in front of me.

[00:20:57] Speaker 04:
That's the rating?

[00:20:58] Speaker 04:
Yes.

[00:20:59] Speaker 04:
And so that's in the information.

[00:21:00] Speaker 04:
And it isn't the problem that the rating is in the dependent claim, 6 and 15?

[00:21:05] Speaker 04:
Well, but it's not about always having to do that.

[00:21:08] Speaker 04:
And in fact, it's not about always having to do it.

[00:21:11] Speaker 04:
Well, because for the independent claim, at a minimum.

[00:21:13] Speaker 01:
there's absolutely no nexus whatsoever, because there's... Well, I'll grant you on the independent claim, but are you going to tell me under class that we ignore the dependent claim?

[00:21:22] Speaker 01:
No, no.

[00:21:23] Speaker 01:
I don't ever say you ignore the dependent claims.

[00:21:24] Speaker 04:
The dependent claims themselves are perhaps one of the dependent claims.

[00:21:28] Speaker 01:
Why do the dependent claims teach what the information disclosure was saying?

[00:21:35] Speaker 04:
Again, I don't actually believe that the dependent claims discuss specifically

[00:21:40] Speaker 04:
waiting the proximal information.

[00:21:43] Speaker 04:
They talk about waiting the content information.

[00:21:45] Speaker 01:
What did the board use?

[00:21:48] Speaker 01:
They were saying that there was no presumptive nexus based on the commensurate relationship of the claims to the information disclosure.

[00:21:58] Speaker 04:
So the board did use it because of the waiting, right?

[00:22:01] Speaker 04:
The board did use, in fact, the waiting.

[00:22:02] Speaker 04:
That's on page 52 of the decision.

[00:22:04] Speaker 04:
And the board said that that alone was enough of a reason to say that there is no nexus between the two.

[00:22:10] Speaker 04:
The board also commented and acknowledged that there was no product, that there was nothing that was... Well, no, there's no product.

[00:22:17] Speaker 01:
But, I mean, let's just assume we're going to take the information disposal as sufficient, as a surrogate for the product.

[00:22:24] Speaker 04:
So again, the board specifically at page 52 said that that IDS was all about waiting and there's no nexus because there's no waiting.

[00:22:35] Speaker 04:
The board also commented specifically on the fact that they had never said what the need was.

[00:22:40] Speaker 04:
And so you can't figure out what the nexus is if you don't even know what the need is to see if the need matches up.

[00:22:46] Speaker 04:
And that's at appendix

[00:22:48] Speaker 04:
higher up on page 52.

[00:22:49] Speaker 01:
My point is, I thought claims 6 and 15 dealt with weighting, approximately, sent terms.

[00:22:57] Speaker 04:
So claims 6 and 15 talk about weighting the vectors that represent that proximal information?

[00:23:02] Speaker 04:
That's yet another step.

[00:23:03] Speaker 04:
That's close enough, right?

[00:23:05] Speaker 04:
I would argue it's not, because it's not saying that that would... The board explained that?

[00:23:09] Speaker 04:
The board did not specifically explain that.

[00:23:12] Speaker 01:
So the board gave us an opinion that's ambiguous.

[00:23:14] Speaker 04:
I don't think it was ambiguous.

[00:23:16] Speaker 01:
It didn't expressly delineate this nice distinction you're making, correct?

[00:23:21] Speaker 01:
It did not.

[00:23:22] Speaker 01:
You are correct about that, Your Honor.

[00:23:23] Speaker 02:
Did the patent owner ask for any sort of consideration of these dependent claims?

[00:23:30] Speaker 02:
No, they did not.

[00:23:31] Speaker 02:
Did the patent owner talk about

[00:23:34] Speaker 02:
presumption of nexus.

[00:23:35] Speaker 02:
Did you say that there was no nexus?

[00:23:38] Speaker 04:
We said that we found no nexus.

[00:23:40] Speaker 04:
We argued that there was no nexus based in combination on the fact of waiting, but we also focused on the fact that none of these were objective information.

[00:23:49] Speaker 04:
All of these, and this is under the Amazon versus Barnes and Noble case, as well as the

[00:23:56] Speaker 04:
get you the other citation that Amazon versus Barnes and Noble as well as RICO manufacturing versus new stock which basically say that if all you're doing is pointing to what the inventor said he thought was not inventive that's not enough it can't create a nexus because it's

[00:24:13] Speaker 04:
subjective information.

[00:24:14] Speaker 04:
The exact quote from Amazon was what Lockwood personally realized is irrelevant.

[00:24:20] Speaker 04:
All that matters is the hypothetically ordinarily skilled person, which isn't discussed here at all.

[00:24:26] Speaker 04:
If, in fact, your honors were to accept

[00:24:28] Speaker 04:
that you could create a nexus and an argument based solely on a piece of paper filed by the inventors that said, I thought this was hard, then there could never be 103.

[00:24:40] Speaker 04:
Because in order to file for a patent application, the inventors have to say they think it's not obvious.

[00:24:45] Speaker 04:
And so one cannot be met with the other.

[00:24:49] Speaker 04:
And that's what the case law talks about, the importance of the objectivity versus the subjectivity.

[00:24:54] Speaker 01:
We're asking now for an opinion as a matter of law that the information discovered is insufficient.

[00:25:02] Speaker 04:
Yes, I think that that would be appropriate.

[00:25:04] Speaker 01:
Let me ask about your brief.

[00:25:06] Speaker 01:
I think we came very close.

[00:25:07] Speaker 01:
This is another one.

[00:25:08] Speaker 01:
Oh, we came very close, because we quoted a parenthetical or something.

[00:25:12] Speaker 01:
Why in the brief did you ask us to live as a matter of law that there can be no nexus here, because the thing to which you're trying to nex is legally irrelevant?

[00:25:23] Speaker 01:
That's your argument to me right now.

[00:25:26] Speaker 01:
To get you to cite your owner.

[00:25:28] Speaker 01:
I'm too ahead.

[00:25:30] Speaker 01:
I'm figuring out these arguments that you guys invented a lot of a parenthetical or something.

[00:25:35] Speaker 04:
No, I understand, Your Honor.

[00:25:36] Speaker 04:
What we said was that the subjective belief is not enough.

[00:25:41] Speaker 04:
And that was both below and here.

[00:25:42] Speaker 04:
And the board found the same thing.

[00:25:45] Speaker 04:
And so that's what we said.

[00:25:46] Speaker 02:
Where is the board's finding on subjective belief?

[00:25:49] Speaker 01:
And your subjective belief equates with the information disclosure?

[00:25:53] Speaker 01:
Yes.

[00:25:53] Speaker 01:
And that's also at?

[00:25:54] Speaker 01:
Where is that a finding?

[00:25:56] Speaker 01:
Where is it in the board's opinion, please?

[00:25:58] Speaker 04:
The board's opinion is at 52.

[00:26:01] Speaker 04:
Let me get that for you.

[00:26:05] Speaker 04:
at 52 talks about the invention proposal relied upon by patent owner indicates all of these things.

[00:26:13] Speaker 04:
There is little or no evidence to support a presumption of nexus or nexus.

[00:26:18] Speaker 04:
For example, it talks about the weighting, and that's what we just talked about.

[00:26:22] Speaker 04:
However, none of the challenge claims require weighting, let alone specific weighting.

[00:26:26] Speaker 01:
So the subjective belief is not to be found in that paragraph, right?

[00:26:30] Speaker 01:
You are correct, Your Honor.

[00:26:32] Speaker 04:
But the board is all about Nexus, right?

[00:26:35] Speaker 04:
That's correct.

[00:26:36] Speaker 04:
The board does, however, cite to, and let me just get you the page here, Your Honor.

[00:26:40] Speaker 04:
Give me one second.

[00:26:41] Speaker 04:
The board specifically cites to both Amazon and RICO.

[00:26:47] Speaker 04:
And I believe it's right in the same region.

[00:26:49] Speaker 04:
And that's where the board says that the subjective is not something that they would consider.

[00:27:00] Speaker 03:
I want you to find that page, but also just talking back with regard to claims 6 and 15.

[00:27:07] Speaker 03:
I know you're looking for that page, and maybe your co-consul could help you find it.

[00:27:13] Speaker 03:
When I was thinking right now, there was going back to claims 6 and 15, some of the discussion you've been having.

[00:27:17] Speaker 03:
I know you point out that vectors would be different, but the way I read 6 and 15, one talks about vectors, but the other does not in terms of the proximal information.

[00:27:27] Speaker 03:
So I wondered if your argument differed

[00:27:29] Speaker 03:
depending on which claim you were looking at there.

[00:27:34] Speaker 04:
No, so for six, it definitely does include the vector, and I think that does make a distinction.

[00:27:38] Speaker 04:
In 15, I actually think it's a little bit ambiguous whether or not the weighting goes just to the multimodal versus the proximal.

[00:27:45] Speaker 04:
I think the weighting circuit has that information, but we don't know.

[00:27:48] Speaker 04:
The answer truly is, I don't think it changes my argument, but I could see an argument the other direction.

[00:27:55] Speaker 04:
But still, substantial evidence would support

[00:27:58] Speaker 04:
that there isn't any evidence built up that there's enough of a nexus with the IDS.

[00:28:03] Speaker 04:
And the IDS is completely subjective.

[00:28:05] Speaker 04:
It's just the inventors talking about their own subjective belief.

[00:28:09] Speaker 04:
I would also point out, Your Honors, that the other article submitted vis-a-vis secondary considerations by the inventors cited by Pat Noner, which is the separating the swarm article.

[00:28:25] Speaker 04:
actually refutes any argument of unexpected success or secondary considerations.

[00:28:31] Speaker 04:
And this is at 2726, where it says that this is far from surprising.

[00:28:38] Speaker 04:
Intuitively, the words that the user sees during each session are good indicators of their information needs.

[00:28:43] Speaker 04:
And so that's actually something that refutes any secondary considerations.

[00:28:47] Speaker 02:
Can I ask you also, are you relying on the bottom paragraph on page A49?

[00:28:52] Speaker 02:
This is what I was talking about with your opposing counsel, which is, you know, the board says it's not clear what specific unexpected results the patent owner relies upon.

[00:29:05] Speaker 04:
Yes, absolutely.

[00:29:06] Speaker 04:
Because if we don't know what they are, we can't even discuss them or figure out

[00:29:10] Speaker 04:
if there's a nexus based on that at all.

[00:29:12] Speaker 04:
And that actually is something that we pointed to in our briefing, as well as the board pointing out that it didn't know what this need even was.

[00:29:22] Speaker 04:
Unexpected result.

[00:29:23] Speaker 04:
Unexpected result, yes.

[00:29:24] Speaker 04:
And just so you're honored to have the citation, the subjective analysis is actually on Appendix 30, where specifically, petitioner also, this is the board.

[00:29:35] Speaker 04:
saying that petitioner persuasively notes the argument is based on subjective inquiry irrelevant to obviousness, citing to both RICO and to Amazon versus Barnes and Noble.

[00:29:47] Speaker 01:
Assuming that we disagree with you and felt that claims 6 and 15 sufficiently relate to the claim subject matter or the subject matter we would dig out of the information disclosure,

[00:30:04] Speaker 01:
so that there are some secondary considerations in play, then assume then that we are faced with the board's conclusion of the balancing of the preliminary case for the secondary considerations.

[00:30:18] Speaker 01:
Yes.

[00:30:18] Speaker 01:
And for that we only have one sentence, I believe, on page 57.

[00:30:22] Speaker 01:
That's correct.

[00:30:23] Speaker 01:
It says, even if some weakness, weak nexus exists,

[00:30:27] Speaker 01:
I'm sure it outweighs the evidence of obviousness.

[00:30:31] Speaker 01:
Right?

[00:30:32] Speaker 01:
That is the sentence that we have.

[00:30:33] Speaker 01:
However... A single sentence on that topic.

[00:30:37] Speaker 01:
Yes, Your Honor, I agree.

[00:30:38] Speaker 01:
But you have to take that in conjunction with... Have you read the Palo Alto opinion that came down after these opinions were issued?

[00:30:47] Speaker 01:
I believe that I did, but I am foggy on it, Your Honor.

[00:30:49] Speaker 01:
The Palo Alto says that it had a situation in which a board had done a balancing

[00:30:57] Speaker 01:
Analysis actually had done a little more than this and we rejected it and said the board has to be specific.

[00:31:04] Speaker 01:
So this sentence, one sentence study even if, can't survive under Palo Alto.

[00:31:10] Speaker 04:
Well, but what I would answer, Your Honor, is that it's not just the obvious, it's the entire obviousness determination is not dependent solely upon that sentence.

[00:31:24] Speaker 04:
Instead, you have to also take into account

[00:31:27] Speaker 01:
that the weak nexus that the board is willing to concede might have existed, which would exist if 6 and 15 kept the issue alive, whereas there is a discussion in the board of why that prima facie case outweighs it.

[00:31:45] Speaker 01:
there's an analysis of the balancing.

[00:31:48] Speaker 04:
There's not a discussion on the balancing.

[00:31:50] Speaker 04:
But there is, however, back on page 30.

[00:31:52] Speaker 01:
Well, I'm telling you, when you go home and read Palo Alto, you better ask yourself why you didn't have an obligation to raise that case and talk about it in brief.

[00:32:02] Speaker 04:
I will take a look at your honor and I apologize if you should have, but I also believe quite strongly that the examiner's side, the board's decision is also supported by the language at pages 30 and 31, which preceded this entire discussion.

[00:32:17] Speaker 01:
30 and 31, back reading discussion?

[00:32:21] Speaker 04:
No, this is in Appendix 30 and 31, this is talking about

[00:32:28] Speaker 04:
why the subjective beliefs of the inventors are not relevant to obviousness.

[00:32:36] Speaker 04:
And so he frames the argument that way.

[00:32:40] Speaker 01:
But now we're using that argument to come back and undermine the information disclosure.

[00:32:46] Speaker 01:
Yes.

[00:32:47] Speaker 01:
But if that's not responsive to my question about how assuming that some weak nexus exists,

[00:32:54] Speaker 01:
why this analysis on page 57 isn't legally insufficient under Palo Alto.

[00:32:59] Speaker 01:
I mean, you can't address that claim, because you can't have a red Palo Alto.

[00:33:04] Speaker 04:
My only answer to you, Your Honor, would be that even if there weren't enough of an answer, vis-a-vis the Nexus, I am saying that there is enough of an answer about the totality.

[00:33:15] Speaker 01:
I mean, that's what you were hoping to find earlier when the other members of the panel agreed, right?

[00:33:21] Speaker 01:
That's right.

[00:33:21] Speaker 01:
I'm assuming we disagree with you on that.

[00:33:25] Speaker 04:
Assuming you disagree that it would be okay for an inventor to put in a piece of paper that says, I don't think this is obvious, and that that is enough, in and of itself, with nothing else, I just don't think that can be wrong.

[00:33:38] Speaker 01:
You're telling me that I can't make that assumption.

[00:33:41] Speaker 01:
Aren't you wrong to say that if indeed there are secondary considerations in play, this case has to go back for a more nuanced explanation of the balance.

[00:33:53] Speaker 04:
Again, Your Honor, I don't believe that it would have to, because of the strength of the obviousness position, as it were.

[00:33:59] Speaker 01:
Well, that's what it was for head robbers and to do the weight.

[00:34:02] Speaker 01:
I understand that, Your Honor.

[00:34:04] Speaker 01:
You're reviewing someone who spares you when you weigh and you put something on one side and put something on the other side.

[00:34:09] Speaker 01:
And there's no evidence of that having happened from the ultimate conclusion of whether or not secondary considerations die in the right of the premeditation case.

[00:34:17] Speaker 04:
But what I'm trying to say, Your Honor, is that you shouldn't even get to the point of the weighing, because this is not objective evidence of secondary considerations.

[00:34:26] Speaker 04:
This is subjective.

[00:34:28] Speaker 04:
And it can't be enough that an inventor can say,

[00:34:32] Speaker 04:
I found this not to be obvious.

[00:34:34] Speaker 04:
The difference between, for example, that scenario that exists here and the Leo case that's cited is that in Leo, you had an indication 20 years before that it would be good.

[00:34:46] Speaker 01:
I did.

[00:34:46] Speaker 01:
I turned back to the point.

[00:34:48] Speaker 01:
Show me in your red room before you made this argument that we should deal with the entire secondary consideration issue by rejecting the information disclosure here as the predicate for the comparison.

[00:35:01] Speaker 01:
Please just show me that in your red brief.

[00:35:05] Speaker 01:
It's not there.

[00:35:06] Speaker 01:
It's not there.

[00:35:07] Speaker 01:
Okay, I'm going to just stop you there.

[00:35:09] Speaker 01:
It's not there.

[00:35:10] Speaker 01:
It came up in our argument.

[00:35:11] Speaker 01:
It's a very nice argument.

[00:35:14] Speaker 01:
I think it's a very nice argument.

[00:35:15] Speaker 01:
I myself questioned why on earth should we let the inventor set the table, right, for the whole discussion of the seven great considerations.

[00:35:23] Speaker 01:
But that argument is in the brief.

[00:35:25] Speaker 01:
You showed me in your red brief when you were saying we should throw it out entirely.

[00:35:33] Speaker 04:
So I apologize.

[00:35:34] Speaker 04:
You're asking me where in my red brief we cite the fact that subjective information shouldn't be enough?

[00:35:40] Speaker 04:
Yes.

[00:35:44] Speaker 01:
I apologize because I read that.

[00:35:48] Speaker 01:
So for example.

[00:35:51] Speaker 04:
So for example, on page 46, when discussing the Leo case,

[00:36:01] Speaker 04:
specifically point out the fact that the evidence cited by Xerox here is entirely subjective, consisting of self-serving statements and documents written by the inventors themselves.

[00:36:11] Speaker 04:
This argument was made by us.

[00:36:14] Speaker 01:
We're on page 46?

[00:36:16] Speaker 04:
I'm on page 46, the beginning of the second full paragraph.

[00:36:19] Speaker 04:
It actually is the second sentence of the first full paragraph.

[00:36:23] Speaker 04:
That's right.

[00:36:24] Speaker 04:
It actually, you can start, the entire discussion starts

[00:36:26] Speaker 04:
above with the paragraph at the bottom of page 45 where we acknowledge that

[00:36:32] Speaker 04:
Xerox is citing Leo, and we set out what Leo was and had, and then we say we are not like Leo because Leo provided objective evidence versus here where everything that was cited was subjective evidence.

[00:36:47] Speaker 04:
And we then literally cite, and this is at bottom of page 46, the board properly discusses.

[00:36:52] Speaker 01:
Oh, I see what your argument is.

[00:36:54] Speaker 01:
I mean, you would think that if this were the wrench plan, this were the key argument for knocking down the sort of reference.

[00:37:00] Speaker 01:
to show up at the beginning of the museum in the very first place.

[00:37:04] Speaker 01:
There's no way in the brief it says there's a whole second way of consideration when it comes.

[00:37:08] Speaker 01:
You don't even have to look at it, because there's no predicate.

[00:37:12] Speaker 04:
And I agree with you, Your Honor.

[00:37:14] Speaker 04:
I will say that the reason that we set the brief up the way we did was so that it tracked the following of the arguments made by the board below in the order the board made it, as well as the arguments that were made by... The point is that no matter the brief you're getting, you're asking this court to be interpreting the impressionistic painting.

[00:37:31] Speaker 01:
or perhaps a pilot painting.

[00:37:33] Speaker 01:
We're supposed to look at a Jackson pilot painting and see what your arguments are.

[00:37:38] Speaker 01:
And so this comes up just in the sort of, this is another reason why you're going to get rid of it, not your primaries.

[00:37:44] Speaker 04:
Again, Your Honor, I apologize.

[00:37:47] Speaker 04:
I think it's one of our strongest arguments.

[00:37:48] Speaker 04:
But at the time, we were trying to make it clear that we were addressing every single element that came up.

[00:37:52] Speaker 01:
It's one of those things where you're trying to hijack the other side because you

[00:37:56] Speaker 01:
wait until you get here to develop this argument.

[00:37:59] Speaker 01:
Well, but the argument was already there.

[00:38:01] Speaker 01:
Well, I don't want to put it down in your brief and then you get here and you whack the other side with a full-blown argument.

[00:38:07] Speaker 04:
Again, I think the argument was fully developed between pages 45 and 47 of the brief.

[00:38:12] Speaker 04:
It actually specifically points it out.

[00:38:15] Speaker 03:
Counsel, do you, would you contend that all of the secondary considerations, evidence that opposing counsel relies on

[00:38:22] Speaker 03:
falls in the subjective category as opposed to an objective category.

[00:38:26] Speaker 03:
Yes.

[00:38:27] Speaker 04:
I see no evidence of anything else.

[00:38:30] Speaker 04:
Thank you.

[00:38:31] Speaker 04:
I appreciate Your Honor's time and attention.

[00:38:33] Speaker 04:
Thank you, Ms.

[00:38:33] Speaker 04:
Keene.

[00:38:33] Speaker 01:
Well, you know where we're coming from.

[00:38:35] Speaker 01:
Thank you, Your Honor.

[00:38:36] Speaker 01:
I mean, as I said, anti-arguing has got a lot of merit.

[00:38:39] Speaker 01:
Thank you, Your Honor.

[00:38:40] Speaker 01:
It's certainly easier for us when striking arguments.

[00:38:44] Speaker 01:
This is the first time I've seen this argument presented in the context of the way these secondary considerations came up.

[00:38:51] Speaker 01:
And so it's extremely helpful to the court when counsel is scared as all of you really are.

[00:38:56] Speaker 01:
And I credit your stress.

[00:38:58] Speaker 01:
You see, this is a new argument.

[00:39:01] Speaker 01:
It's a new issue, a new problem.

[00:39:02] Speaker 01:
And something, hey, judges, you should stand up and be aware of this.

[00:39:06] Speaker 01:
When it's sort of way down in the bottom of the brief and not particularly phrased out as a significant point, it's just one word or one set of sentences.

[00:39:15] Speaker 01:
Do you see what I mean?

[00:39:17] Speaker 04:
I absolutely do, Your Honor.

[00:39:18] Speaker 04:
It warranted a letter.

[00:39:19] Speaker 01:
We depend on you all.

[00:39:21] Speaker 01:
to help us see things that are new and different.

[00:39:26] Speaker 01:
Because we're seeing off a lot of the same old same old.

[00:39:29] Speaker 01:
And we're especially seeing off a lot of the same old same old coming out of the p-tap, right?

[00:39:34] Speaker 01:
And so it's really helpful for us when we have a point to make that is important to the body of the world.

[00:39:40] Speaker 01:
Form it up neatly and tightly so that we can see it and then we have a better chance to get a hold of it.

[00:39:46] Speaker 04:
I very much appreciate it, Your Honor.

[00:39:48] Speaker 04:
Thank you.

[00:39:49] Speaker 01:
Thank you very much.

[00:39:49] Speaker 01:
I mean, I don't mean to be harsh on you, but you know my reputation.

[00:39:52] Speaker 04:
I actually appreciate it, Your Honor.

[00:39:53] Speaker 04:
We can't get better if we're not given advice.

[00:39:55] Speaker 04:
So I appreciate it very much.

[00:39:56] Speaker 02:
Thank you.

[00:39:58] Speaker 02:
Mr. Ryman, I will give you two minutes for rebuttal.

[00:40:01] Speaker 00:
I'll let you do that.

[00:40:07] Speaker 00:
Your Honor, just two very brief points.

[00:40:09] Speaker 00:
At Your Honor's point about meat on the bones, what I direct the Court's attention to is Appendix 356 through 357.

[00:40:16] Speaker 00:
was our patent owner's response.

[00:40:21] Speaker 01:
Thank you.

[00:40:25] Speaker 00:
And on appendix 356 through 357, Dr. Martin walks through the experimental results, which is what he was referring to later on in our patent owner's response, about them being unexpected.

[00:40:39] Speaker 02:
And the... And where does this talk, you were saying, even though it doesn't use the phrase unexpected results, you're saying that this

[00:40:46] Speaker 02:
these two, the single paragraph on page 356 running onto the next page, that is going to be the unexpected results.

[00:40:55] Speaker 00:
Yes, your honor.

[00:40:56] Speaker 00:
And your honor, whether the evidence was subjective or objective, we continue it as objective.

[00:41:01] Speaker 00:
To your honor's point about what bucket it fits in, under Leo Pharmaceuticals, which was, that case had to do with test results submitted by the inventors.

[00:41:10] Speaker 00:
And we talk about this in our reply brief.

[00:41:12] Speaker 00:
at the bottom of page 30.

[00:41:15] Speaker 00:
So Meadow is arguing that our evidence is subjective.

[00:41:18] Speaker 00:
But again, at Penn site, page 762, F.3D, at 358, the court in real pharmaceuticals is talking about the test results submitted there.

[00:41:29] Speaker 02:
But there weren't test results here, right?

[00:41:31] Speaker 02:
I mean, I understand there might be some statements about we have success now or these are, you know,

[00:41:38] Speaker 02:
statements about why this is a good idea.

[00:41:41] Speaker 02:
But there isn't anything saying we tested this.

[00:41:44] Speaker 02:
These are our results.

[00:41:46] Speaker 02:
Here you can see them, right?

[00:41:48] Speaker 00:
No, I just read your honor.

[00:41:49] Speaker 00:
That is exactly what is in the invention proposal and exactly what Dr. Martin

[00:41:53] Speaker 00:
is talking about at pages 356 through 357.

[00:41:56] Speaker 00:
Those are experimentally derived results.

[00:41:59] Speaker 00:
And the invention disclosure talks about previous experiments, and then it talks about these experiments that the inventors ran.

[00:42:05] Speaker 00:
And so this was not just the invention.

[00:42:07] Speaker 02:
This is what the phrase is, that it improves the accuracy of the method, right?

[00:42:11] Speaker 00:
So starting on 356, it's talking about, quote, this previous experiment, while quite successful, did not use any proximal scent information for the page's traverse.

[00:42:22] Speaker 00:
And then it talks about the very next sentence.

[00:42:23] Speaker 00:
To evaluate the performance of the method using proximal scent, the inventors re-ran a small subset of the previous experiments.

[00:42:30] Speaker 00:
They were not just praising their own invention.

[00:42:33] Speaker 00:
They were running experiments, and that is in the invention disclosure.

[00:42:36] Speaker 00:
This is objective evidence.

[00:42:37] Speaker 02:
What is the interpretation of proximal scent in there?

[00:42:40] Speaker 00:
Your Honor, even our briefing is that it's synonymous with proximal information.

[00:42:46] Speaker 02:
So what interpretation is that, though, of proximal information, since you have two that you're talking about in your briefing?

[00:42:54] Speaker 00:
So Your Honor, what we contend is that it fits with the properly construed proximal information.

[00:43:00] Speaker 00:
You mean the one that you were advocating for on appeal?

[00:43:03] Speaker 00:
Yes, Your Honor, absolutely.

[00:43:04] Speaker 00:
Just to be clear.

[00:43:05] Speaker 02:
Yes, Your Honor.

[00:43:07] Speaker 00:
Your honor, opinion any further questions we ask the court to reverse or an alternative vacate and remand for the proceedings.

[00:43:13] Speaker 00:
Thank you.

[00:43:16] Speaker 01:
Can I just have one quick question?

[00:43:17] Speaker 01:
In terms of the test results that you were talking about on 857 for proximal information, that was using your definition of proximal net?

[00:43:26] Speaker 01:
Yes, your honor.

[00:43:27] Speaker 01:
Information?

[00:43:28] Speaker 01:
Not the boards.

[00:43:29] Speaker 01:
Yes, your honor.

[00:43:31] Speaker 01:
So that pre-existed.

[00:43:33] Speaker 01:
You had your definition in mind when your expert went before the board.

[00:43:38] Speaker 01:
ever before the petition was ever filed?

[00:43:41] Speaker 01:
At what stage in the game were these tests filed?

[00:43:43] Speaker 01:
It would have been before the application was ever filed.

[00:43:46] Speaker 00:
Yes, Your Honor.

[00:43:46] Speaker 00:
The adventure proposal was from either 2001 or 2002, before the patent application was filed.

[00:43:54] Speaker 01:
And you had in mind the claim construction that you were using at the board way back then.

[00:44:03] Speaker 01:
So what I'm trying to get at is what were you testing?

[00:44:06] Speaker 01:
You were using proximal information, right?

[00:44:09] Speaker 01:
Yes, Your Honor.

[00:44:10] Speaker 01:
But the question is whether you were using proximal information as defined by the board or as defined by you.

[00:44:18] Speaker 00:
We say defined by us because there's an association between the text and the linkage.

[00:44:21] Speaker 01:
So I'm saying is that whole distinction existed well before misliteration ever happened.

[00:44:27] Speaker 01:
We can see the evidence in the record that supports that point.

[00:44:32] Speaker 00:
Your Honor, I'd have to pull up the invention disclosure to find a phrase that supports the association between text and link.

[00:44:38] Speaker 01:
So if I look at the disclosure, I'll find a definition of proximal information in it that equates with your proposed definition in this case?

[00:44:50] Speaker 00:
If Your Honor is looking for a clear statement that says that, no.

[00:44:53] Speaker 00:
Your Honor will not find that.

[00:44:55] Speaker 00:
We would say that it is

[00:44:57] Speaker 00:
clear from the invention disclosure that an association was required but if your honor is looking for a clear statement no you will not find that in the invention disclosure thank you counsel thank you counsel the case is submitted in the briefs