[00:00:00] Speaker 04: Now back to work. [00:00:01] Speaker 04: First case for argument is 23-1817, Avago Technologies versus Netflix. [00:00:10] Speaker 04: Mr. Young, whenever you're ready. [00:00:21] Speaker 02: Good morning, Your Honors. [00:00:21] Speaker 02: May I please support Dan Young for Avago Technologies. [00:00:24] Speaker 02: I'd like to spend the first eight minutes dealing with the issues that we've raised with the board's decisions on the Baldwin reference and save the rest of the time for rebuttal for Netflix's Cross Appeal. [00:00:39] Speaker 02: Unlike the Cooper reference, which teaches you that you are multiplexing two streams together, meaning that you take two streams, combine them into a single one, and send it, the Baldwin reference is much different. [00:00:52] Speaker 02: The Baldwin reference deals with not multiplexing, but multicast, a multicast system. [00:00:58] Speaker 02: Meaning that you have a transmitter, and then you have a number of receivers. [00:01:03] Speaker 02: And so you are transmitting streams to those various receivers. [00:01:09] Speaker 02: And this is clear from Baldwin. [00:01:11] Speaker 02: Figure four, as an example, shows multiple streams being sent from the transmitter. [00:01:15] Speaker 02: And figure seven shows, as an example, of multiple receivers, 7081 through 708N. [00:01:23] Speaker 02: When there's a channel change and there is requested information, a receiver – one of those various receivers is part of the multicast system. [00:01:31] Speaker 02: One of those receivers can join an alternate stream and then eventually switch over to the mainstream. [00:01:38] Speaker 02: But Bowden does not teach, as required by a CLEAN1 of the 014 patent, that the receiver receives multiple streams [00:01:50] Speaker 02: and then identifies which one to ultimately present to the user. [00:01:56] Speaker 02: With respect to element 1c, which deals with receiving levels. [00:02:01] Speaker 00: Can you just remind me what has been decided and what is still in dispute about whether the identifying of the expected lower latency has to occur after [00:02:17] Speaker 00: more than one stream has come into the receiver, or whether that can be the information about the expected result, expected latency, can be sent ahead of, say, the second stream being received? [00:02:35] Speaker 02: Yes, Your Honor. [00:02:35] Speaker 02: So that deals with the claim construction issue. [00:02:37] Speaker 02: The board decided not to decide that issue. [00:02:40] Speaker 02: And in the footnote on page 19 of their decision, they said, well, we don't need to decide that, because we find the board found [00:02:47] Speaker 02: that the receivers discussed in Ballwood received multiple streams and then identified which one to process based on what it deemed to be the lowest latency. [00:02:58] Speaker 02: So the board never decided to claim construction issue, which is why it's not determinative in this case, because they went ahead and they found. [00:03:06] Speaker 02: So what we're disputing is the board's findings with respect to almost 1C. [00:03:10] Speaker 02: In respect to 1C, which is the receiver receiving multiple streams, the board's findings are incredibly thin. [00:03:19] Speaker 02: They cited two places in the specification for Baldwin. [00:03:22] Speaker 02: The first was in column six, line 30 through 33, which just says one may multicast multiple joining streams and a mainstream at all times. [00:03:33] Speaker 02: And they said that we argued that Baldwin only teaches transmitting a single stream. [00:03:39] Speaker 02: which is not the case. [00:03:40] Speaker 02: We never argued that. [00:03:42] Speaker 04: Are we on page 18 or 19 of the, you're citing the bird's opinion? [00:03:47] Speaker 02: Page 18, Your Honor. [00:03:48] Speaker 02: Okay. [00:03:51] Speaker 02: We never said that they only transmit a single stream. [00:03:54] Speaker 02: What we said was the receiver only receives a single stream. [00:04:00] Speaker 02: And we don't want a place that they cited [00:04:01] Speaker 02: the board cited was column nine, lines 29 through 33. [00:04:05] Speaker 02: And it says, these alternative transmissions need not be sent concurrently to a particular receiver within a multicast environment. [00:04:12] Speaker 02: Rather, each one is prepared for transmission, but a particular multicast stream is sent to a particular receiver only when requested by the receiver. [00:04:22] Speaker 02: And they said, well, because it says need not, that means that it could also send them simultaneously. [00:04:29] Speaker 02: But there was no teaching in Baldwin. [00:04:31] Speaker 02: that teaches that the receiver is receiving two streams concurrently. [00:04:37] Speaker 02: With respect to the identification, the board also cited two also provisions in column six and column nine, where it says individual client devices may determine for themselves which stream to be listening to at a given point. [00:04:52] Speaker 02: That's true. [00:04:54] Speaker 02: But you have to look at how does the receiver make that determination. [00:05:00] Speaker 02: And it's very clear. [00:05:02] Speaker 02: Because what the receiver's doing is it's saying, well, which is the next random access point, RAP? [00:05:10] Speaker 02: The receiver doesn't know that. [00:05:12] Speaker 02: It's being transmitted by the transmitter. [00:05:14] Speaker 02: So the only thing the receiver knows is that there's a mainstream in these alternate streams. [00:05:18] Speaker 02: It doesn't know where the random access point is. [00:05:19] Speaker 02: How does it find out? [00:05:21] Speaker 02: Well, in figures five, it sends a query. [00:05:24] Speaker 02: It goes to the transmitter and says, when is the next random access point? [00:05:28] Speaker 02: And that's in step 512 of figure 5. [00:05:33] Speaker 02: And then the transmitter comes back in step 612 of figure 6. [00:05:38] Speaker 02: And it says, well, here's the next random access point. [00:05:40] Speaker 02: Here's the one that's coming. [00:05:42] Speaker 02: And then the receiver joins that random access point. [00:05:46] Speaker 02: So there, the transmitter is identifying which stream the receiver should join. [00:05:51] Speaker 02: And then the receiver is joining it. [00:05:53] Speaker 02: So the identification, again, element 1B says, identifying by the receiver which of the plurality of the information streams when processed is expected to result in a lower latency. [00:06:07] Speaker 02: The receiver is not identifying it. [00:06:09] Speaker 02: In fact, step 514 of figure 5 says, join the alternative multicast transmission identified by the query, identified by the transmit. [00:06:19] Speaker 02: Now, the board said, [00:06:21] Speaker 02: Well, figures five and six, they don't necessarily detail all the teachings of Baldwin. [00:06:26] Speaker 02: But there's no other teaching in Baldwin that says anything about how the receiver is making this identification. [00:06:33] Speaker 02: Because the receiver doesn't know what the random access point is, and it has to be identified by the transmitter. [00:06:39] Speaker 02: Finally, Netflix attempts to bolster the board's decision and said, well, the board's got it right. [00:06:47] Speaker 02: Look at an example of Figure 8, and it shows multiple communication links, 812 through 820. [00:06:53] Speaker 02: But those are different communication links. [00:06:56] Speaker 02: phone and video, those are not – that's not what this patent is talking about. [00:06:59] Speaker 02: This patent is talking about multiple streams of the requested information. [00:07:04] Speaker 02: So when you change the channel, you're requesting channel four or channel six or whatever it may be, not the situation where you show the system with figure eight where you have multiple channels coming into the receiver. [00:07:17] Speaker 02: So in summary, with respect to our appeal on the Baldwin reference, we do not believe there's substantial evidence because [00:07:25] Speaker 02: The reference simply does not teach, and it would be counter to the teachings of Baldwin for the receiver to receive multiple streams and then decide. [00:07:33] Speaker 02: In fact, right above the sentence relied on by the blurb in column six, [00:07:40] Speaker 02: It says the total number of outgoing IP multicast is not limited by the available bitrate of any particular client. [00:07:49] Speaker 02: That's exactly what we're talking about. [00:07:50] Speaker 02: But the reason you want to maximize the stream to the bitrate is because you want to present the most high quality of a video. [00:08:00] Speaker 02: the highest definition. [00:08:01] Speaker 02: In other words, the most data being processed by the receiver. [00:08:05] Speaker 02: You don't want to use that up by sending the receiver and processing all seven or eight or however many streams there are. [00:08:10] Speaker 02: You want to, which one, identify the one that has the current most, soon, the next coming random access point and just process that one. [00:08:20] Speaker 02: So, Your Honor, unless you have any questions, I will save the rest of my time for a while. [00:08:24] Speaker 04: Thank you. [00:08:38] Speaker 01: Good morning. [00:08:39] Speaker 01: Please proceed. [00:08:40] Speaker 01: Good morning. [00:08:40] Speaker 01: Chris Ponner for Appellee Netflix. [00:08:44] Speaker 01: I think Avigdor just argued that 1C and 1D, there are just simply no teachings that the board relied upon to show that the receiver both makes the determination and receives multiple strengths. [00:08:57] Speaker 01: And that's not the case. [00:08:59] Speaker 01: And I'd like to look at the specific disclosures that the board looked at. [00:09:04] Speaker 01: So if we could start with appendix page 9 [00:09:09] Speaker 01: I'm sorry, appendix page 446. [00:09:11] Speaker 01: This is the Baldwin reference. [00:09:14] Speaker 01: Starting at column 6, we see this is the beginning of the detailed description, and the patent describes the latency problem and introduces the idea of the random access points. [00:09:25] Speaker 01: At line 28, Baldwin describes how you provide, at all times, multiple join in streams and a mean stream. [00:09:33] Speaker 01: And importantly, at line 31, Baldwin teaches, quote, [00:09:36] Speaker 01: Furthermore, individual client devices may determine for themselves which stream to be listening to at any given point. [00:09:45] Speaker 01: If you look at the final written decision on page 18, the board quoted that teaching and found that it is, quote, contrary to patent owner's argument that the server selects the stream. [00:09:59] Speaker 01: If we go back to appendix page 448, we reach the column nine teachings. [00:10:06] Speaker 01: Lines 20 to 24, again, describe providing a mainstream and these phase staggered alternative streams, the join in streams. [00:10:14] Speaker 01: And at line 24, Baldwin states, by sending multiple different streams, tuning time is improved because the receiver may select one of the lead in streams to play. [00:10:27] Speaker 01: Going back to the final decision of page 18, the board quoted that teaching. [00:10:32] Speaker 01: and explained how that teaching reinforces the other teaching we looked at, because the board said that this teaching, quote, explains the benefit of sending multiple streams and allowing the client device to select a stream. [00:10:47] Speaker 01: If we can go back to 448, the next portion of column nine, line 29, Baldwin teaches that these alternative transmissions need not be sent concurrently to a particular receiver within a multicast environment. [00:11:02] Speaker 01: The final decision on page 19, the board correctly observed by stating that the streams do not have to be sent concurrently, Baldwin further teaches or reasonably suggests that alternative streams can be sent to a receiver. [00:11:16] Speaker 00: Can you remind me, is there an undisputed concurrency requirement in the claim, or is that disputed? [00:11:24] Speaker 01: I believe that is still disputed if you're referring to the claim of construction. [00:11:27] Speaker 00: But the board, did the board assume that there have to be two coming in at the same time? [00:11:34] Speaker 01: The board said they found that Baldwin teaches it in the order of the proposed construction by Avago without reaching whether the construction is correct or not. [00:11:49] Speaker 01: But going back to this need log language, if one says a pencil need not have an eraser, [00:11:54] Speaker 01: The listener would understand that a pencil can have an eraser. [00:11:57] Speaker 01: If one says a cookie need not have chocolate chips, the listener would understand that a cookie can have chocolate chips. [00:12:03] Speaker 00: It might be false. [00:12:05] Speaker 00: It might be false. [00:12:08] Speaker 01: And what's important is that one says need not. [00:12:10] Speaker 01: It doesn't say are not. [00:12:12] Speaker 01: It does not say that the concurrent strings are not sent concurrently. [00:12:17] Speaker 00: And this is a substantial evidence question. [00:12:21] Speaker 00: This reading the prior art. [00:12:22] Speaker 01: This is a substantial evidence question. [00:12:24] Speaker 01: And so the board considered all of these teachings and found on the evidence after considering the expert testimony that Netflix's interpretation of the reference was correct and that limitations 1C and 1D are top. [00:12:38] Speaker 01: If there are any questions, I'd like to move to the motivation to the cross appeal, Your Honor. [00:12:50] Speaker 01: The only limitation that the board found is not taught by Cooper is limitation 1D. [00:12:56] Speaker 01: And if you look at the motivation combined. [00:12:59] Speaker 04: Can I go back and tell me? [00:13:00] Speaker 04: I found it a little confusing, and maybe this is what led the board arguably astray. [00:13:06] Speaker 04: You were arguing each of Baldwin and Cooper each independently teach 1C and 1D. [00:13:15] Speaker 04: And then you were saying that there's a third [00:13:18] Speaker 01: I was planning to just walk through and show you exactly how the petition structured. [00:13:22] Speaker 01: But for limitation 1D, what we did is in our mapping, we showed how both references have teachings for all the limitations. [00:13:30] Speaker 01: On the limitation 1D, as Avigot points out in the yellow brief at 4 to 5, we included the specific statement that to the extent that Avigot argued, Cooper's teachings for this limitation 1D were not sufficient. [00:13:44] Speaker 01: that it would have been obvious for a combination of Cooper and Baldwin to use the teachings of limitation 1B from Baldwin. [00:13:51] Speaker 01: And we laid that out in multiple places. [00:13:55] Speaker 01: If I can take you to appendix page 70, this is the petition. [00:14:05] Speaker 01: And what we did is we put an explanation of the proposed combination of Cooper and Baldwin at the beginning. [00:14:13] Speaker 01: And you can see that on 70, this first paragraph kind of gives a high-level overview of the teachings of CUPA relevant to Claim 1. [00:14:22] Speaker 01: On page 71, we have the transition to Baldwin, where we talk about and introduce Baldwin's teachings for identification and selection. [00:14:34] Speaker 01: This is the limitation 1b aspect. [00:14:37] Speaker 01: Then we proceed to explain, and it's the bottom paragraph, we talk about combining Cooper's receiver teachings, so all the teachings other than D, with Baldwin's teachings of providing alternative streams with staggered access points and selecting the streams. [00:14:53] Speaker 01: So that's the limitation 1D. [00:14:57] Speaker 01: We then proceeded on page 72. [00:15:01] Speaker 01: to start giving the motivations to combine. [00:15:03] Speaker 01: So for example, in the middle of the page. [00:15:06] Speaker 04: So what is your view of why the board, in your view, went astray? [00:15:11] Speaker 01: So I think what happened is at institution, they thought that Cooper and Baldwin teached all limitations of the claim. [00:15:21] Speaker 01: That each of them did? [00:15:23] Speaker 01: Yes. [00:15:24] Speaker 01: And there was a difference in what we pointed to in limitation 1D for Cooper. [00:15:28] Speaker 01: Cooper has a different teaching that is more akin to what Mr. [00:15:32] Speaker 01: Young mentioned about this multiplexing of strings, which is not part of the claims. [00:15:37] Speaker 01: One of the ways that Cooper and Baldwin are different is Cooper had a multiplex transmission arrangement. [00:15:46] Speaker 01: We didn't know where they would go argument-wise because of infringement issues. [00:15:50] Speaker 01: Because obviously, with Netflix, we do internet stuff that's more like Baldwin than Cooper. [00:15:57] Speaker 01: We proceeded here then to explain why you would substitute [00:16:03] Speaker 01: Baldwin's teachings for D with Cooper. [00:16:07] Speaker 01: So for example, in the middle of page 72, we say it says while Cooper teaches identifying which alternative streams is more readily available, and then recaps it, we say combining Baldwin's identification selection teachings with Cooper's receiver produces a combined device with predictable results and explain that analysis. [00:16:26] Speaker 01: On 73, we did the same thing for a different motivation to combined, and so on. [00:16:34] Speaker 01: Now I'd like to take you to the mapping of Claim 1. [00:16:40] Speaker 01: So if you proceed to page 76 of the petition, you can see this is where we start going through the teachings of the references. [00:16:46] Speaker 01: And so you see Claim Limitation 1A begins. [00:16:50] Speaker 01: We go through the Cooper teachings. [00:16:53] Speaker 01: And if you can go with me to page [00:17:00] Speaker 01: 86, you can see that we get to limitation 1D. [00:17:06] Speaker 01: We proceeded to talk about Cooper's teachings on 86, 87, 88, and then we get to 89. [00:17:15] Speaker 01: In 89, we conclude the discussion of Cooper and say, to the extent that the patent owner argues that the foregoing teachers of Cooper relating to a receiver, and I won't read the rest of that, [00:17:29] Speaker 01: We say, a posita would have found it obvious for Cooper and Baldwin to teach this limitation based on Baldwin's teachings. [00:17:36] Speaker 01: And we then proceed to explain Baldwin's teachings on 89, all the way through to page 42. [00:17:45] Speaker 04: OK, so just in the interest of time. [00:17:49] Speaker 04: Yes. [00:17:49] Speaker 04: And the board says, it's not clear how or where petitioner relies on the proposed combination to satisfy any specific claim limitations. [00:17:58] Speaker 04: Yeah. [00:17:59] Speaker 04: Is it your disagreement with the board that you don't think they carefully read what you were saying? [00:18:05] Speaker 04: Or are you saying sort of as a legal matter, they were requiring too much with respect to each specific claim limitation? [00:18:11] Speaker 01: I don't think they went back and carefully looked at the petition anew. [00:18:14] Speaker 01: When we were at trial, [00:18:16] Speaker 01: We thought that the board's hang-up was that Cooper and Baldwin teaches every limitation of the plane. [00:18:21] Speaker 01: And so what the parties were arguing about was whether there would still be a motivation to combine Cooper and Baldwin if Cooper, in fact, taught all limitations. [00:18:31] Speaker 01: But after the trial, the board decided, oh, you know what? [00:18:35] Speaker 01: We're going to agree with Avago that Cooper limitation 1B is not taught. [00:18:40] Speaker 01: And I don't think they went back. [00:18:43] Speaker 01: and look at their motivation to combine analysis. [00:18:46] Speaker 04: So they thought because it's not taught then you didn't, if Cooper doesn't have this then there's not sufficient motivation because of that fact? [00:18:55] Speaker 01: No, their original analysis was that if the two references teach all limitations [00:19:00] Speaker 01: A person of ordinary skill in the art wouldn't be motivated to combine aspects of the two teachings. [00:19:06] Speaker 01: So basically, if Cooper fully taught every limitation and Baldwin taught every limitation, Avago argued up until trial, well, why would a person of ordinary skill in the art combine something from Baldwin into Cooper? [00:19:22] Speaker 01: And that's what we argued about. [00:19:23] Speaker 01: That actually turned out to not be the issue, because then the board decided the trial [00:19:27] Speaker 01: You know, we're going to now accept this argument that Abhigo made on limitation 1D for Cooper. [00:19:32] Speaker 01: We didn't know that was the issue. [00:19:34] Speaker 01: If we knew, if they had given us some indication at the hearing that, oh, you know what, we're going against you now, and it turns out Cooper doesn't teach 1D, well, then I could have easily walked them through this. [00:19:44] Speaker 01: So you're asking for a remand, so you have an opportunity to walk them through this? [00:19:48] Speaker 01: Yes, and have them make particularized findings with respect to one combining Cooper's receiving teachings [00:19:56] Speaker 01: with Baldwin for 1D as laid out in that position. [00:20:00] Speaker 00: Did you make some kind of argument, and I don't remember it with enough specificity to be terribly specific in this question, something about the board, in addition to not grappling with an argument you made about motivation to combine, also took an unduly narrow focus of [00:20:24] Speaker 00: What kind of motivation you would need, namely a focus on the particular claim limitation? [00:20:33] Speaker 00: Am I remembering that right? [00:20:35] Speaker 01: I think the issue was that the board was, I think they were faulting us that we didn't sufficiently say that there was a problem with Cooper for 1D. [00:20:51] Speaker 01: And that was an argument that ABGA made. [00:20:54] Speaker 01: This one D where we have to the extent that we actually needed to say well Cooper doesn't have this and hence you have to Combine with Baldwin. [00:21:05] Speaker 01: I think that was kind of the I I thought I thought your argument was that they were requiring too much by asking you to show motivate motivation to combine for each claim limitation I think what the board the board said this goes back to them misapprehending the petition They were saying that we didn't put in [00:21:24] Speaker 01: under this heading of limitation 1D, enough about the motivation to combine Baldwin's teachings for 1D with Cooper. [00:21:32] Speaker 04: OK. [00:21:32] Speaker 04: But you're saying the board wasn't wrong. [00:21:35] Speaker 04: They were just, you didn't know you would make which argument to make or what they were going to do. [00:21:40] Speaker 04: Is that your? [00:21:41] Speaker 01: Well, I think the board was wrong, because we just walked through and showed how under 1D, we said, here's what you would combine, and then pointed to the motivation to combine section, which specifically addressed [00:21:53] Speaker 01: this combination of the aspects of limitations 1D with Cooper. [00:22:00] Speaker 03: Couldn't the board just as easily found the opposite? [00:22:06] Speaker 01: That we didn't show motivation to combine? [00:22:11] Speaker 01: The problem is that they didn't say. [00:22:13] Speaker 03: Why shouldn't we vacate and remand to consider an argument that perhaps it seems that the board did consider already? [00:22:21] Speaker 01: So I think the reason why it needs to be remanded is they said that we didn't articulate a motivation to combine with limitation 1D. [00:22:30] Speaker 01: And clearly, we did. [00:22:31] Speaker 01: If there's one thing we did was we said, if we lose on this pupil argument for 1D, you should make this combination with respect to Baldwin. [00:22:40] Speaker 01: And here's why a posita would have been motivated to combine Baldwin's teachings for limitation 1D [00:22:48] Speaker 01: into Cooper's receiver. [00:22:50] Speaker 00: And that's the material at appendix 70 to 72. [00:22:54] Speaker 01: Yes, Your Honor, that section. [00:23:24] Speaker 02: Thank you, Your Honor. [00:23:25] Speaker 02: Just very quickly, with respect to the issues on Baldwin, just one point. [00:23:31] Speaker 02: Their argument with respect to column nine, lines 29 through 33, where it says, these alternative transmissions need not be sent concurrently to a particular receiver. [00:23:42] Speaker 02: And they say, well, need not means that you also could. [00:23:45] Speaker 02: But the very next sentence says, rather. [00:23:47] Speaker 02: So in other words, you need not do this, rather. [00:23:50] Speaker 02: Each one is prepared for transmission, but a particular multicast stream is sent to a particular receiver only when requested by that receiver. [00:23:59] Speaker 02: That's the teaching of Baldwin. [00:24:01] Speaker 02: That's how the receiver knows which stream to join is because it queries the transmitter. [00:24:08] Speaker 02: Transmitter tells it which one to join. [00:24:10] Speaker 02: And that's the teaching of Baldwin. [00:24:11] Speaker 02: There really is no ambiguity with respect to that. [00:24:14] Speaker 02: And we argue that the board's findings on Baldwin just lack substantial evidence. [00:24:21] Speaker 02: With respect to the motivation to combine section, it's very important to understand exactly what they argued and what the board found in its decision. [00:24:33] Speaker 02: In their petition, they say Cooper and Baldwin. [00:24:36] Speaker 02: They don't say Cooper, Baldwin, Cooper in view of Baldwin, Baldwin in view of Cooper. [00:24:42] Speaker 02: They just say Cooper and Baldwin. [00:24:44] Speaker 02: And they go through and argue that each one of these references supposedly teaches each one of the claim limitations of claim one. [00:24:52] Speaker 02: The board understood what their argument was, and the board said specifically on page nine of their decision. [00:24:59] Speaker 02: They say that they're arguing Cooper's receiver teachings with Baldwin's teachings provide alternative streams with staggered access points and selecting the stream with the next available access point. [00:25:09] Speaker 02: They understood exactly what they argued. [00:25:12] Speaker 02: They understood their motivations to combine. [00:25:14] Speaker 02: They didn't find that there was no motivation to combine. [00:25:17] Speaker 02: What they found was that they [00:25:20] Speaker 02: It says, among other problems, this is on page nine, it is not clear how or where petition relies on the proposed combination to satisfy any particular claim limitations. [00:25:32] Speaker 02: And with respect to counsel's argument about 1D, they say, well, if Cooper doesn't teach it, you can put in Baldwin for that teaching. [00:25:40] Speaker 02: But they don't explain how that system would work. [00:25:43] Speaker 02: How was it translated? [00:25:44] Speaker 02: Because remember, this is undisputed, with respect to the Cooper reference, you're talking about multiplex system, where you take two streams and you combine them into a single stream. [00:25:57] Speaker 02: That's very different than how the Baldwin reference works. [00:25:59] Speaker 02: You have a single transmitter sending out multiple streams of the same content. [00:26:04] Speaker 02: It's not multiplexed. [00:26:06] Speaker 02: So it was combined. [00:26:09] Speaker 00: So as we argue, it seems to me that even at page nine there, the board is making a [00:26:19] Speaker 00: different kind of how point from the one you're making. [00:26:24] Speaker 00: We often get board decisions that say there's something deficient about the persuasiveness of the contention of combination of A and B. Namely, you don't say how A and B are going to be put together to arrive at the claim limitation. [00:26:48] Speaker 00: I'm not sure that that's what the board is saying in this paragraph, the Among Other Problems paragraph on Appendix 9. [00:26:56] Speaker 00: It seems more that it's talking about the petitioner not saying how the combination satisfies a particular claim limitation, not how the combination would work. [00:27:13] Speaker 00: So it's a defect in the petitioner's presentation [00:27:18] Speaker 00: And that, so I'm not sure that that's really the same point. [00:27:25] Speaker 02: Well, yeah, George, I understand what you're saying. [00:27:27] Speaker 02: Like in this case, we'll talk about limitation 1D. [00:27:30] Speaker 02: They don't describe how that combination would work because [00:27:34] Speaker 02: If you took Baldwin's teachings and suddenly put them into the Cooper receiver, they don't describe how that system would satisfy the limitation, because in the Cooper reference, the receiver is trying to identify which one of the multiplex streams would work. [00:27:51] Speaker 02: And in the Baldwin system, the transmitter is the one telling where the random access points would be in the various streams. [00:27:58] Speaker 02: Those are very different systems. [00:28:00] Speaker 02: that they're exactly right. [00:28:02] Speaker 02: It doesn't clearly state how – basically on page nine it says, without clearly stating how the references are to be combined and how those combined teachings satisfy particular limitations. [00:28:13] Speaker 02: And a good example of this [00:28:15] Speaker 02: Please remember. [00:28:17] Speaker 00: So I guess if one is looking at that with respect to the bottom of Appendix 71, which is the petition passage that says combining Cooper's receiver teachings with Baldwin's teachings of providing alternative streams with staggered access points and selecting the stream with the next available, that seems to me to be making an argument about 1D [00:28:45] Speaker 00: coming out of Baldwin, not out of Cooper. [00:28:48] Speaker 00: So that sense of how these things are working is, I think, there. [00:28:54] Speaker 00: And I'm not sure that the board recognized that and then went on to the more substantive inquiry about [00:29:05] Speaker 00: I don't know. [00:29:07] Speaker 00: What's under the hood of the combination? [00:29:10] Speaker 00: How the combination would actually work in practice? [00:29:14] Speaker 00: Because there's no further discussion in the board's opinion of that how it would work in practice question. [00:29:24] Speaker 02: Robert, the board absolutely understood that was their argument. [00:29:27] Speaker 02: If you look on page nine of the board's decision, at the very top, they say exactly what that argument is. [00:29:33] Speaker 02: Cooper's receiver teachings with Baldwin's teachings of providing alternative streams with staggered access points. [00:29:39] Speaker 02: They knew exactly what Netflix was arguing. [00:29:43] Speaker 02: And they said, you didn't clearly set forth how that would work. [00:29:46] Speaker 02: And this is an example. [00:29:47] Speaker 02: If you took Baldwin and you said, the Baldwin's going to teach 1D, well, then a person with a skill would say, well, we would use Baldwin for the whole teaching. [00:29:57] Speaker 02: Right? [00:29:58] Speaker 02: Because it doesn't say, we're going to use Cooper for elements, as an example, elements 1A, 1B, 1C, and then we're going to switch the bulb, and then we're going to go back to Cooper for 1E. [00:30:09] Speaker 02: None of that's ever discussed in the specification. [00:30:12] Speaker 02: And a good example of this, remember, the dependent claims are the ones that survive. [00:30:15] Speaker 02: So as an example, claim six. [00:30:18] Speaker 02: And it says, the method of claim one where receiving the plurality of video streams comprises receiving the plurality of video streams [00:30:25] Speaker 02: simultaneously over a single multi-stream channel. [00:30:29] Speaker 02: They say Cooper teaches that. [00:30:31] Speaker 02: But if you're using Baldwin's receiving techniques, that doesn't make any sense. [00:30:36] Speaker 02: It doesn't go together. [00:30:37] Speaker 02: So when they described these dependent claims, they relied on Cooper solely, with respect to claims 6, 17, 8, and 11, without ever describing how that whole system would work in combination. [00:30:51] Speaker 02: But they simply said, Baldwin teaches everything. [00:30:53] Speaker 02: Cooper teaches everything. [00:30:55] Speaker 02: And if you substitute Baldwin in for Cooper, there's no description as to how that system would work. [00:30:59] Speaker 02: So the board knew exactly what they were arguing. [00:31:02] Speaker 02: They looked at it, and they said it wasn't clearly articulated in the petition. [00:31:07] Speaker 04: Thank you. [00:31:07] Speaker 04: Thank you, Your Honor. [00:31:10] Speaker 04: I will restart two minutes of the battle for purposes of the cost of their own. [00:31:13] Speaker 01: Thank you, Your Honor. [00:31:20] Speaker 01: So I just wanted to agree that the board did not find a lack of motivation to combine. [00:31:25] Speaker 01: They didn't reach it. [00:31:26] Speaker 01: That's why we need a remand. [00:31:30] Speaker 01: And this whole issue is relevant because we rely on the combination for these four dependent claims to survive. [00:31:37] Speaker 01: Now, what's interesting is we heard a lot of arguments that kind of sound like some sort of argument that our prior art wouldn't be enabled for the dependent claims. [00:31:47] Speaker 01: The problem for Avago is they didn't make any specific arguments for the dependent claims. [00:31:52] Speaker 01: If you look at what they put in their patent owner response, just look at the table of contents on 953, they gave up about a page for each of these dependent, for all the dependent claims, one or two pages. [00:32:04] Speaker 01: So they didn't make any arguments or present any arguments that what we said in the petition with respect to the dependent claims and how you would combine them and use them wouldn't be enabled. [00:32:16] Speaker 01: With that, Your Honor, lest there's any questions. [00:32:18] Speaker 01: Thank you. [00:32:19] Speaker 01: We thank both sides. [00:32:20] Speaker 01: The case is submitted.