[00:00:00] Speaker 00:
The next page is number 241207, Google LLC versus Touchscreen Technologies.

[00:00:08] Speaker 00:
Mr. Meyer, go ahead.

[00:00:11] Speaker 03:
May it please the court, by misapplying the single referent obviousness analysis, the board has long concluded that the Mootee-Tamara-Sami balance, that I'll refer to as Mootoo to short, does not teach or suggest a single dissipated limitation.

[00:00:28] Speaker 03:
There's no dispute here that the claimed messages are disclosed by nuclear commands that identify a media player in our semi-part smart phones to internet media devices.

[00:00:40] Speaker 03:
There's also no dispute that the claimed servers

[00:00:43] Speaker 03:
is disclosed by NUSU's media control network, on which smartphones also send various commands.

[00:00:52] Speaker 03:
The only thing NUSU lacks is an express statement that the disclosed commands identifying the media player are sent on the already disclosed media content network pattern.

[00:01:04] Speaker 03:
But skilled engineers have understood that Muthu suggests a suitability of doing exactly that.

[00:01:12] Speaker 00:
Okay, but as I understand what the board said is that it's an RU motivation to combine, right?

[00:01:20] Speaker 03:
Your Honor, we did not argue motivation combined.

[00:01:22] Speaker 03:
And there was no need for us to argue motivations combined, because this is a single-reference obviousness analysis.

[00:01:31] Speaker 00:
When the argument is you would have combined two invidings from a single reference, you don't have to argue that's a motivation to combine the two.

[00:01:38] Speaker 03:
So two points, Your Honor.

[00:01:39] Speaker 03:
I believe GE suggests that it's a reference, not an embodiment.

[00:01:43] Speaker 03:
But even here, we're not combining two invidings.

[00:01:47] Speaker 03:
The limitations are in Figure 1.

[00:01:50] Speaker 03:
There's other figures that are blowouts or zoom-outs of what's in Figure 1, but we are not combining any of that.

[00:01:57] Speaker 02:
What about a motivation to modify?

[00:01:59] Speaker 02:
Why don't you have to show that?

[00:02:01] Speaker 03:
Well, two points, Your Honor.

[00:02:02] Speaker 03:
As a legal matter, cases such as unification technology say there's no categorical rule requiring a motivation to modify when we're dealing with a single reference.

[00:02:14] Speaker 03:
And here, Your Honor, there is nothing to modify.

[00:02:16] Speaker 03:
The message as claimed is, there's no dispute that the message as claimed is disclosed in the, for example, in the commands in Figure 19.

[00:02:26] Speaker 03:
There's also no dispute that the service system as claimed is already disclosed by the media control network, which is the Xenopub and the Xeno.

[00:02:37] Speaker 03:
The only issue is whether skilled engineers

[00:02:41] Speaker 03:
would have understood the suitability of taking the already disclosed message and sending it on the already disclosed path.

[00:02:48] Speaker 03:
But the message and the path do not need to be mindful.

[00:02:54] Speaker 02:
That sounds like a modification.

[00:02:56] Speaker 02:
It's not expressly disclosed, at least, exactly as it needs to be in the mood of the reference.

[00:03:03] Speaker 02:
Just the way you described it, you've made it clear, I thought, some sort of modification is necessary.

[00:03:08] Speaker 03:
It's not a modification.

[00:03:10] Speaker 03:
It's a selection.

[00:03:11] Speaker 03:
There's multiple paths disclosed in Muth.

[00:03:14] Speaker 03:
We're not altering any paths.

[00:03:16] Speaker 03:
We're not altering the content of any messages.

[00:03:18] Speaker 02:
But you're using a path for a purpose that Muth does not expressly disclose using it for.

[00:03:24] Speaker 03:
Right.

[00:03:25] Speaker 03:
Muth suggests that minimums are just doing it.

[00:03:27] Speaker 03:
But there's no modification to a path.

[00:03:30] Speaker 03:
There's no modification to the message.

[00:03:33] Speaker 03:
It's out.

[00:03:35] Speaker 03:
Does that speak to your question there?

[00:03:37] Speaker 02:
I think it does.

[00:03:37] Speaker 02:
But then, so what do you say to the board's analysis?

[00:03:41] Speaker 02:
The board said that wouldn't be obvious.

[00:03:44] Speaker 03:
Right.

[00:03:44] Speaker 03:
Well, I think the board's analysis actually commits the same errors as before corrected in JANSA.

[00:03:50] Speaker 03:
In particular, it was three things.

[00:03:52] Speaker 03:
The board cut short the analysis required for obviousness.

[00:03:55] Speaker 03:
The board identified the differences between Muthu and the claims, and it ended there.

[00:04:01] Speaker 03:
But that's where the analysis should have started, namely, what does movement fairly suggest and teach to skilled engineers, and what are the instances?

[00:04:11] Speaker 03:
And the board never undertook that analysis.

[00:04:14] Speaker 03:
So to stop the inquiry, where it should have started, had it looked at the evidence, we know that the entire purpose of movement is to provide a system that abstracts the differences between different media devices, internet media devices,

[00:04:27] Speaker 00:
So in a sense though, you're saying you present the reference that the board has an obligation on its own to find motivation to modify it so that it would perform at limitations.

[00:04:42] Speaker 00:
That's the hard sell, right?

[00:04:44] Speaker 03:
We are not relying on a motivation to modify it.

[00:04:47] Speaker 01:
But if the reference doesn't do it the way the patent does, even though it has the components to do it, if it doesn't explicitly teach that, then you have to find an explanation for why those components would be used in a different way than the reference discloses to cover all the patent.

[00:05:08] Speaker 01:
And the board found you didn't show that.

[00:05:11] Speaker 03:
Your Honor, so two points.

[00:05:13] Speaker 03:
As I understand the question, there's no modification there.

[00:05:17] Speaker 01:
I don't know why you're getting caught up in this.

[00:05:20] Speaker 01:
This is not an argument that Muthu teaches how to do it exactly the way the patent, right?

[00:05:28] Speaker 01:
I thought your argument was all the pieces are here.

[00:05:31] Speaker 01:
Muthu teaches sending it under one pathway.

[00:05:34] Speaker 01:
The patent says do it under another way.

[00:05:38] Speaker 01:
So you have to go assume that a skilled artisan would look at this and say, well, even though Muthu said send it through this pathway, a skilled artisan would know you could also send it through this other pathway.

[00:05:50] Speaker 01:
Is that fair?

[00:05:51] Speaker 01:
That's fair.

[00:05:51] Speaker 01:
OK, so if that's what's happening, you've got to give a reason for why a skilled artisan would come to that conclusion.

[00:05:59] Speaker 01:
And if the board found you didn't.

[00:06:00] Speaker 03:
No, Your Honor, so I respectfully.

[00:06:02] Speaker 01:
If that's the way the board viewed it,

[00:06:04] Speaker 01:
And that's consistent with the law, right?

[00:06:07] Speaker 03:
No, because the board identified the differences.

[00:06:09] Speaker 03:
The board never undertook the analysis as to why or whether a skilled engineer would understand it suitable to take that message and send it.

[00:06:17] Speaker 00:
Because you didn't argue it.

[00:06:19] Speaker 00:
Because you didn't argue it.

[00:06:20] Speaker 03:
No, Your Honor.

[00:06:22] Speaker 03:
I'm sorry, Your Honor.

[00:06:22] Speaker 03:
I didn't mean to hurt you.

[00:06:24] Speaker 03:
Where did you argue it?

[00:06:25] Speaker 03:
So I would point this court to paragraphs 79 and paragraphs 98 to 102 in Dr. Bederson's declaration.

[00:06:33] Speaker 03:
And that's a, if we, for instance, at Paragraph 79, that's... Paragraph 79 is at page 2078, and that's where Dr. Bederson explains that the media control network satisfies the server system requirement.

[00:06:58] Speaker 03:
to paragraphs 98 through 102, which is at pages 287 through 29.

[00:07:07] Speaker 03:
We see that in paragraph 98, Dr. Davidson again explains that there are commands that will be sent on immediate control.

[00:07:19] Speaker 03:
And in particular, and those commands he discusses in paragraphs 100 and 102.

[00:07:23] Speaker 03:
And in particular, in paragraph

[00:07:26] Speaker 03:
On page 98, he cites figure 19, which shows.

[00:07:31] Speaker 00:
Where does he say he would take these teachings of the Breyer art reference and do a modification?

[00:07:42] Speaker 03:
He's not arguing, he's not opining on obfuscation, he's saying that a skill of artisans would understand that you could take that message, I'm sorry, you could use the path, the media control network path, and you could send the messages that are disclosed in Figure 19, you would send those messages on the media control network path.

[00:08:01] Speaker 03:
Now if I'm using an analogy, it's a path.

[00:08:04] Speaker 03:
I drove here, and on my car, I could have taken various paths to get here.

[00:08:09] Speaker 03:
I didn't change my car.

[00:08:11] Speaker 02:
I didn't change the path.

[00:08:12] Speaker 02:
There was no modification.

[00:08:13] Speaker 03:
There was just a question of selecting which path I would take to get here.

[00:08:17] Speaker 03:
That is what's going on here.

[00:08:20] Speaker 03:
We have a message.

[00:08:21] Speaker 03:
There's no speed.

[00:08:23] Speaker 02:
Just taking your analogy.

[00:08:26] Speaker 02:
If you were trying to prove that the way you got here was obvious, wouldn't you at least have to have come up with a reason for why someone would choose that path?

[00:08:35] Speaker 02:
It would have to be a suitable path.

[00:08:37] Speaker 02:
And I think that's better.

[00:08:38] Speaker 02:
So where is your expert doing that?

[00:08:40] Speaker 03:
Sure.

[00:08:40] Speaker 03:
Again, Paragraph 98, he says this is the path.

[00:08:43] Speaker 03:
And these are the commands that will be sent.

[00:08:47] Speaker 03:
Let me back up, Your Honor.

[00:08:48] Speaker 03:
I see.

[00:08:48] Speaker 03:
Paragraph 98, he says there's a path, and commands will be sent on that path.

[00:08:53] Speaker 03:
In paragraphs 100-102, he describes why the claimed messages, which are the commands from Luther, would be sent on that path.

[00:09:03] Speaker 03:
The path is the sea path.

[00:09:06] Speaker 00:
Correct.

[00:09:06] Speaker 00:
It's the Z-hub, you know, that the pad identifies.

[00:09:09] Speaker 00:
Which now doesn't send the identity of the media player, and you're saying that someone reading that would say, we should do that.

[00:09:17] Speaker 00:
We should send a media player identity to that pad.

[00:09:20] Speaker 03:
Right.

[00:09:20] Speaker 03:
You would send a command in Figure 19, which identifies a media player through that pad.

[00:09:26] Speaker 03:
And in particular, to your point, another place I would point to is Figure 5.

[00:09:32] Speaker 03:
That's 2349 in Muthu.

[00:09:35] Speaker 03:
And if we look at that, the next to last column shows commands.

[00:09:40] Speaker 03:
for both, together, commands for both internet media devices, such as DVD, VCR, and non-internet media devices, such as DVD, VCR, and internet media devices, which is the SCI software that executes, for example, on an HD SIP.

[00:09:57] Speaker 03:
That's number five in figure one.

[00:09:59] Speaker 03:
And custom zone expert explains that the SCI software is equivalent to internet media devices.

[00:10:06] Speaker 03:
devices that have screened internet media.

[00:10:09] Speaker 03:
So if you look at Dr. Bederson's paragraphs 98 through 102, and you look at figure five, and importantly, Dr. Bederson does this through the lens of what is the goal and objective of MOOC, which is to abstract away the differences between different media devices and have a system that can translate different messages with different protocols.

[00:10:31] Speaker 03:
And that's found in the paragraphs

[00:10:34] Speaker 03:
44 and 58 of Muthu, and after that are some slight shows as well.

[00:10:41] Speaker 03:
So Your Honors, also with respect to a board's analysis, it did not, if you look at the board's analysis on pages 27, 28, 29, and 30, it is conduct, what it does, just like Jansen, it says there's a difference.

[00:10:56] Speaker 03:
and stops.

[00:10:58] Speaker 03:
And it also does that by isolating specific portions of MUTU rather than viewing it as a whole.

[00:11:04] Speaker 03:
It looks at figure 18 and says, I don't see the media control network packed here, instead of viewing figure 18 in the context of MUTU as a whole, such as figure 1.

[00:11:14] Speaker 03:
And it does the same thing with figure 5.

[00:11:16] Speaker 03:
It bridges figure 5 without analyzing it as a whole.

[00:11:23] Speaker 03:
There are no further questions, Your Honor, okay?

[00:11:52] Speaker 01:
Thank you, Your Honor.

[00:11:52] Speaker 01:
May it please the court?

[00:11:55] Speaker 01:
There is substantial evidence to support the board's final decision.

[00:12:00] Speaker 01:
Even had Google put forward expert testimony discussing how to modify the movement for Marasani to show all of the elements of the patent claims, this panel should still uphold

[00:12:14] Speaker 01:
There is substantial evidence to support it.

[00:12:17] Speaker 01:
The declaration of Dr. Almorav was cited and discussed extensively during the final written decision.

[00:12:24] Speaker 01:
Dr. Almorav explains in his declaration, paragraphs 128 and 129, how one of ordinary skill in the arm would understand the mood to reference.

[00:12:35] Speaker 01:
And specifically,

[00:12:36] Speaker 01:
He explains there are two separate pathways that this panel has understood.

[00:12:40] Speaker 01:
One is the Z-Hub Z-Node.

[00:12:44] Speaker 01:
And think of this as like a universal remote control.

[00:12:47] Speaker 01:
The Z-Hub Z-Node sends infrared commands to devices that are not connected to the internet.

[00:12:53] Speaker 01:
VCRs, TVs, old TVs, DVD players.

[00:13:00] Speaker 01:
The Z-Hub Z-Node, the purpose of it is to convert

[00:13:04] Speaker 01:
Instructions from the IED into a format that can be understood by these non-internet connected devices.

[00:13:11] Speaker 01:
And it does that by converting it to infrared encodes.

[00:13:14] Speaker 01:
One of the skills in the art, as discussed by Dr. Almorov, would see that and understand, OK, this supposed service, the Z-Node Z-Node, is there to talk to these non-internet devices.

[00:13:25] Speaker 01:
Dr. Almorov explains this is something not addressed by the board.

[00:13:29] Speaker 01:
But that embodiment also does not include programming code.

[00:13:33] Speaker 01:
And Google's expert admitted that during his deposition that infrared codes are not programming codes as contemplated by the patent or the patents.

[00:13:42] Speaker 01:
Alternatively, the other embodiment discussed in Muthu from Varsami, and it's almost an afterthought, it's just a paragraph at the very end, you could also use a remote-controlled internet browser.

[00:13:54] Speaker 01:
That remote-controlled internet browser is shown throughout Muthu as being connected over Wi-Fi, and it's explained that this is a Wi-Fi-connected internet streaming device.

[00:14:04] Speaker 01:
As Dr. Amarok explained, one of ordinary skill would see that and understand.

[00:14:09] Speaker 01:
You would not need to go through this Z-Hub Z-Node server system, as identified by Google, to communicate with the RCIBS.

[00:14:18] Speaker 01:
It would not make sense to convert instructions that would be natively understood by a computing device such as the RCIBS, convert it to an infrared code,

[00:14:29] Speaker 01:
blast it to the Z-stick, which is not described as having an infrared receiver, and then converting it back into a computer code.

[00:14:39] Speaker 01:
Rather, as Dr. Elmeroth explains, one of skill in the arts would understand that these computers could connect directly.

[00:14:46] Speaker 01:
And that's shown in the figures of move-through kumarasama.

[00:14:49] Speaker 01:
Both figure 18 and figure 5 show a Wi-Fi connection from the internet-enabled device to the Z-stick.

[00:14:55] Speaker 01:
That's how one of skill in the art would understand that.

[00:14:58] Speaker 01:
Now again, Google did not map it that way.

[00:15:02] Speaker 01:
They provided no evidence or argument for why one skill in the art would take that disclosure for the z-stick and modify it to send it through that path.

[00:15:13] Speaker 01:
In contrast, Google says that, you know,

[00:15:19] Speaker 01:
It's kind of difficult to understand what Google is arguing.

[00:15:22] Speaker 01:
At first, they say there's no reason to modify it.

[00:15:24] Speaker 01:
But then they say it would be obvious for one of skill in the art to understand that you could go through there.

[00:15:28] Speaker 01:
And I think what that boils down to is Google understands they put themselves in a problematic area.

[00:15:36] Speaker 01:
When the board was discussing the understandings of Muthuk Dhammarasamy, it cited Dr. Almroth's declaration extensively.

[00:15:43] Speaker 01:
That's substantial evidence, and it's there in the final written decisions.

[00:15:47] Speaker 01:
When called out, with Patton Hunter's response, Google's reply tried to shift their mapping.

[00:15:54] Speaker 01:
to say, oh, well, the RCIBS could be part of the server system.

[00:15:59] Speaker 01:
But the board correctly found that is not how Google mapped it.

[00:16:03] Speaker 01:
If you look at the petition and the board specifies this, then it rejected Google's argument that that was how it mapped it.

[00:16:09] Speaker 01:
And without that mapping, Google is left with a problem.

[00:16:12] Speaker 01:
The problem being, there is no single express embodiment or disclosure that teaches how one is still in the arc would take these two embodiments and confine them.

[00:16:23] Speaker 02:
What do you think of the analogy we're taking today about there's at least two different ways you could draw here to the university?

[00:16:32] Speaker 02:
Isn't it obvious, just on its face, that if I don't take road one, I take road two?

[00:16:39] Speaker 01:
So two points to that.

[00:16:40] Speaker 01:
One, even had Google presented that argument, again, there is substantial evidence to support what the board did play.

[00:16:48] Speaker 01:
And I think a different analogy was used below the board is a little more illustrative.

[00:16:55] Speaker 01:
Picture a patent on a cell phone.

[00:16:58] Speaker 01:
A cell phone has both Wi-Fi communications and cellular communications.

[00:17:02] Speaker 01:
Those are two different ways to communicate with the internet.

[00:17:06] Speaker 01:
What Google has essentially done in its petition is picked and choose portions of the Wi-Fi protocol that match certain limitations and portions of the cellular protocol that meet certain limitations and just said, look, every element is disclosed.

[00:17:22] Speaker 01:
The problem is we came in with an expert who viewed it through the lens of one of ordinary skill and said one of ordinary skill would not understand

[00:17:32] Speaker 01:
these two protocols to be used at the same time.

[00:17:35] Speaker 01:
You need some reason why you would match elements A, B, and C to match to elements D and E. And Google simply failed to do that.

[00:17:42] Speaker 01:
So this repeated anthem that Google has that moves in numerosity as a source and device agnostic system is certainly not motivation for one to combine it.

[00:17:54] Speaker 01:
We agree it does attempt to have a source and device agnostic system.

[00:17:59] Speaker 01:
So, when you're selecting with the internet-enabled device, if you choose internet content, it will play, or if you choose VCR content, it will play.

[00:18:07] Speaker 01:
That is what Muthu is getting at, but that does not mean the separate processes that Muthu teaches to achieve those things would be combined without some reason to do so.

[00:18:18] Speaker 01:
And again, Dr. Almorov explains you would not have a reason to do so.

[00:18:22] Speaker 01:
It would make no sense for one of the skills in the art and computer science

[00:18:26] Speaker 01:
to route communication commands through this infrared, Z-Hubs, even server system that Google intends as a server system.

[00:18:35] Speaker 02:
What about Janssen?

[00:18:36] Speaker 02:
Google says it's all over their place and you don't even respond to it.

[00:18:41] Speaker 01:
Yes, so Janssen... Yes, so Janssen had fundamentally different posture in this case.

[00:18:54] Speaker 01:
In Janssen,

[00:18:56] Speaker 01:
The real issue that the appellate court took was that they misconstrued the claims and made them unduly narrow.

[00:19:05] Speaker 01:
If, you know, looking at it under the proper interpretation, the claims shouldn't have been restricted that way.

[00:19:14] Speaker 01:
And when they weren't restricted that way, the obviousness of the claims became apparent.

[00:19:19] Speaker 01:
Now, the board did discuss minor variations, which I think is what Google's argued about in its numerosity, but there was evidence in Janssen about how those minor variations would be viewed by one still in the art.

[00:19:32] Speaker 01:
That is something completely lacking in this case.

[00:19:37] Speaker 01:
Even had Google put forward such rationale, how one of ordinary skill and AR maybe could have mixed and matched those, the board reviewed Peterson's testimony, and reviewed Dr. Almorad's testimony, and made findings of fact that is not how one ordinary skill would view Mr. Kumrasmi, and it would not be obvious.

[00:19:57] Speaker 01:
And the board's decisions there are supported by substantial evidence, and there are a deference on the fact order.

[00:20:06] Speaker 01:
I would also note that I think the real issue of Janssen was there was an improper teaching away argument, which is not in the final decision.

[00:20:16] Speaker 01:
If the board has no further questions, I'm happy to give my time.

[00:20:19] Speaker 01:
See, that's a mistake that's made so often.

[00:20:21] Speaker 01:
Call us the board.

[00:20:24] Speaker 01:
Why not?

[00:20:24] Speaker 01:
I'm so sorry, Your Honor.

[00:20:26] Speaker 01:
That's sort of a different standard.

[00:20:27] Speaker 01:
Yes, it is.

[00:20:28] Speaker 01:
I apologize.

[00:20:31] Speaker 00:
Mr. Meyer, go on.

[00:20:39] Speaker 03:
A few quick points.

[00:20:42] Speaker 03:
First, the board's decision addressing this issue is on pages 27 through 32.

[00:20:50] Speaker 03:
It never cites Dr. Amaroff.

[00:20:53] Speaker 03:
Touchscreen's argument about Dr. Amaroff's testimony is based on an opinion the board did not write, on facts the board did not find, and on evidence the board did not cite.

[00:21:03] Speaker 03:
Second point, Your Honor, touch screen brings up figure five and how they're different.

[00:21:08] Speaker 03:
If we look at figure five again, 2349, I believe in Muthu, the second-class column treats the internet messages and non-internet messages as overlapping cases side by side.

[00:21:23] Speaker 03:
And there's nothing, Your Honors, in Muthu.

[00:21:26] Speaker 03:
that says the messages in Figure 19 are limited, restricted, or excluded from being sent on the media control network.

[00:21:36] Speaker 03:
There's simply no evidence of that, certainly none that the board cited or found.

[00:21:41] Speaker 03:
So with that, if the court has no questions, I'll take it back.

[00:21:45] Speaker 00:
Thank you.