[00:00:00] Speaker 04:
Okay.

[00:00:03] Speaker 04:
Our fourth and last argument this morning is document number 24-1770, which is IBM versus Zillow Group, Incorporated.

[00:00:23] Speaker 02:
Council, whenever you're ready.

[00:00:25] Speaker 02:
Thank you, Your Honor.

[00:00:25] Speaker 02:
May it please the Court, Kareem Oseyev for IBM.

[00:00:30] Speaker 02:
Your Honors, this court should reverse because the board's final written decision deviated from the theory set forward in the petition.

[00:00:42] Speaker 02:
Specifically, the petition advocated a theory in which the Sonata prior art reference disclosed a protected resource.

[00:00:53] Speaker 02:
And that was an explicit decision in the petition.

[00:00:57] Speaker 02:
And if we look at appendix 142, we can see that explicit decision.

[00:01:10] Speaker 04:
Your argument is that the board abused its discretion in reading the petition differently.

[00:01:17] Speaker 04:
Is that right?

[00:01:20] Speaker 02:
Your Honor, I think the

[00:01:22] Speaker 02:
It's explicit how the petition should be read.

[00:01:25] Speaker 02:
And yes, the board abuses discretion by deviating from how it can only be read.

[00:01:31] Speaker 02:
And if I may, Your Honor, let me show the court why it's so explicit.

[00:01:37] Speaker 02:
On Appendix 142, you have the preamble of the claim.

[00:01:44] Speaker 02:
And right under the header, it says, as per the kayak IPR,

[00:01:49] Speaker 02:
in the IANCO decision, Sonata discloses all preamble limitations except for potentially an FCE, and that's short for Federated Computing Environment.

[00:02:01] Speaker 02:
So the entire preamble, the theory was Sonata discloses those elements, and one of those elements is of course the protected resource.

[00:02:12] Speaker 02:
Now why was the petition so explicit about the disclosure theory?

[00:02:18] Speaker 02:
It was so explicit because it was citing the kayak IPR.

[00:02:23] Speaker 02:
That is an IPR that happened before.

[00:02:25] Speaker 02:
And the goal of the petition was to apply collateral estoppel.

[00:02:31] Speaker 02:
So the kayak IPR

[00:02:34] Speaker 02:
found that Sonata discloses the protective resource.

[00:02:37] Speaker 02:
Now as it turns out, the board didn't apply collateral stoppable and Zillow doesn't appeal that because there was a change in the law about how to interpret claims.

[00:02:47] Speaker 02:
However, this is why the petition is so explicit about disclosure.

[00:02:52] Speaker 01:
So what about other areas?

[00:02:54] Speaker 01:
Like on page A146, midway through the page, it says the person who organized it on the art would have understood from Sonata

[00:03:02] Speaker 01:
how to ensure that restricted resources were only accessed by appropriate users.

[00:03:08] Speaker 01:
Is that something different than saying disclosed?

[00:03:12] Speaker 01:
Is that saying suggested?

[00:03:14] Speaker 02:
Your Honor, can you show me exactly where that is?

[00:03:16] Speaker 01:
You make way through the page, and it starts, again, page 8146.

[00:03:22] Speaker 01:
There's really only one paragraph there, the further paragraph.

[00:03:26] Speaker 01:
You go about six lines down, and there's a sentence that starts with over.

[00:03:31] Speaker 02:
Which appendix site, Your Honor?

[00:03:35] Speaker 02:
146.

[00:03:39] Speaker 02:
So page 146, Your Honor, is concerning the FCE limitation.

[00:03:44] Speaker 02:
So if we look on appendix 143, there's a conclusion paragraph right in the middle, and it says, thus.

[00:03:52] Speaker 01:
I hear you, but could you look at the sentence I'm asking you about just to tell me what it says?

[00:03:57] Speaker 02:
Yes.

[00:03:57] Speaker 01:
OK, it says, moreover, a

[00:04:00] Speaker 01:
A person of ordinary skill and art would have understood from Sonata how to ensure that restricted resources were only accessed by appropriate users.

[00:04:11] Speaker 01:
So how does that relate to whether Sonata discloses protected resources or whether it suggests protected resources?

[00:04:22] Speaker 01:
Does it at all relate to that?

[00:04:23] Speaker 01:
I'm just looking at this, and you just kind of jumped out.

[00:04:26] Speaker 02:
I understand, Your Honor.

[00:04:27] Speaker 02:
So first of all, the answer would be that's in the context of FCE.

[00:04:31] Speaker 02:
But setting that aside, the second thing is, if we look at the construction that the board applied, the construction of protected resource that is undisputed on appeal is that it needs to be identified by a URL or a URI.

[00:04:49] Speaker 01:
And that's on- When the petition was written, that had been determined or had it been?

[00:04:55] Speaker 02:
that had not been determined at the time that the petition was written.

[00:04:59] Speaker 01:
So is the party allowed to further explain its positions?

[00:05:07] Speaker 01:
When there's, you know, later on it's more like responsive to arguments made by the pattern.

[00:05:13] Speaker 02:
If it's consistent with the argument that's advanced in the petition, but here it's not, it's not consistent.

[00:05:20] Speaker 02:
And I would say, you know... I'm sorry, I'm sorry.

[00:05:30] Speaker 00:
It's explicit, and if not explicit, implicit.

[00:05:33] Speaker 00:
I mean, there's no inconsistency.

[00:05:35] Speaker 00:
So what do you mean by inconsistent?

[00:05:37] Speaker 02:
So I would refer, Your Honor, to Appendix 128.

[00:05:44] Speaker 02:
And this is where the petitioner sets forward what the petitioner is trying to do.

[00:05:50] Speaker 01:
Did you say 128?

[00:05:52] Speaker 02:
Appendix 128, yes, Your Honor.

[00:05:55] Speaker 02:
So what we're looking at here is part of the petition.

[00:05:58] Speaker 02:
And what it says is under Section G, collateral estoppel, it talks about how in the first sentence it sets the framework and in the second sentence it says, accordingly, it is inappropriate to deviate from the previously determined issues per the kayak IPR.

[00:06:17] Speaker 02:
Specifically, that sonata discloses every limitation at issue in the kayak IPR

[00:06:22] Speaker 02:
with the possible exception of an FCE.

[00:06:24] Speaker 02:
So this sets out distinguishing two parts of the argument.

[00:06:30] Speaker 02:
It says, OK, so there's the FCE parts and there's the non-FCE parts.

[00:06:36] Speaker 02:
And what we're arguing here is that everything except for the FCE parts is disclosed.

[00:06:43] Speaker 02:
And the FC parts is something that we're going to add additional arguments to.

[00:06:50] Speaker 02:
And the reason why they do that is because if they deviated from the kayak IPR and started talking about suggestions or whether it was obvious or some other argument, they wouldn't be able to use collateral stopple.

[00:07:05] Speaker 02:
That was the whole purpose of the petition.

[00:07:07] Speaker 00:
So let me just, as I understood Judge Stoller,

[00:07:13] Speaker 00:
about whether you make a declaration and later you've got to elaborate on it.

[00:07:19] Speaker 00:
Now, to contradict it would be one thing, but to say in the language interpretation business, we think that this is absolutely plain on the face of sonata.

[00:07:34] Speaker 00:
But we understand that, you know, you might disagree.

[00:07:39] Speaker 00:
And if you disagree with the plainness, it is still

[00:07:43] Speaker 00:
enough to implant in the skilled artisan's head the idea, suggest what teaching, any other softer term, that's not an inconsistency.

[00:07:56] Speaker 00:
That doesn't undermine the assertion.

[00:07:59] Speaker 00:
We think it's plain enough that collateral estoppel would be covered.

[00:08:05] Speaker 00:
I guess I don't really see why, how you can press this so hard as a

[00:08:13] Speaker 00:
right-line distinction that is a complete change of theory.

[00:08:17] Speaker 02:
Yes, Your Honor.

[00:08:17] Speaker 02:
I mean, I would go back to appendix 142 and look at how the petition structures the analysis on the preamble.

[00:08:30] Speaker 02:
Specifically, it starts out arguing about everything except for the FCE.

[00:08:37] Speaker 02:
And then it makes a clear break to the FCE part of the claim.

[00:08:43] Speaker 02:
And on page appendix 143, the next page, it says, thus, as the PTAB correctly found in the kayak IPR, Sonata discloses the non-FCE preamble limitations.

[00:08:56] Speaker 02:
Then it says, OK, we set the table for the non-FCE parts.

[00:09:01] Speaker 02:
It says, as for the FCE limitations, here's our argument.

[00:09:09] Speaker 02:
And that's the context in which the rest of the argument is made.

[00:09:13] Speaker 02:
So the headers that people use to break up the claims is, to a certain extent, arbitrary.

[00:09:19] Speaker 02:
Different people could break up an element that people think is just one.

[00:09:31] Speaker 01:
I'm just curious about that, because that, of course, is another limitation that refers to a protected resource.

[00:09:38] Speaker 01:
Yes, Your Honor.

[00:09:39] Speaker 01:
There, in discussing that limitation, it points out, for example, Sonata discloses that a username gained access to a protected service, I think that's resource, on a web application.

[00:09:52] Speaker 01:
I mean, so isn't that talking more about what Sonata teaches with respect to a protected resource?

[00:10:02] Speaker 02:
I think, Your Honor, 1.1 supports our position because it gives an independent basis to find that it's a disclosure argument for this element, too.

[00:10:12] Speaker 02:
So in my reading of Appendix 146, it starts off that as the PTAB found in the kayak IPR, Sonata discloses its limitation.

[00:10:21] Speaker 02:
And then in the part that you read.

[00:10:23] Speaker 01:
OK, so then you come back, and there is this claim instruction.

[00:10:27] Speaker 01:
The claim instruction says that protected

[00:10:29] Speaker 01:
Resource has to have an URL.

[00:10:32] Speaker 02:
Yes, or URI.

[00:10:33] Speaker 02:
But one of those two, yes.

[00:10:35] Speaker 01:
And then the response is, well, Sonata discloses a protected service on a web application.

[00:10:43] Speaker 01:
Right.

[00:10:44] Speaker 01:
So that must have a URL or URI.

[00:10:47] Speaker 01:
Why isn't that just further explanation of the point as opposed to a contradictory or a new argument?

[00:10:55] Speaker 02:
Because your honor, the final written decision explicitly says that Sonata does not disclose a URI or a URL.

[00:11:04] Speaker 02:
And if we look at Appendix 17, that's the final written decision.

[00:11:14] Speaker 02:
And when we look at the final written decision, Appendix 17, just a second,

[00:11:23] Speaker 02:
Right after the block quote, it says, consistent with petitioners concession, we find that petitioner has not shown that Sonata discloses protected resources under our claim construction.

[00:11:41] Speaker 02:
So the board analyzed the evidence and thought, well, maybe they elaborated on this disclosure theory and maybe they proved that Sonata actually discloses a protected resource.

[00:11:54] Speaker 02:
But we've been through all the evidence.

[00:11:56] Speaker 04:
At the same time, the board later says that both, it finds that both Sunada and the APA disclosed the protected resources.

[00:12:05] Speaker 02:
Is that right?

[00:12:06] Speaker 02:
No, Your Honor.

[00:12:06] Speaker 02:
I don't think that's the right interpretation.

[00:12:08] Speaker 02:
So that's on Appendix 35.

[00:12:11] Speaker 02:
And let me walk, Your Honor, through that analysis.

[00:12:15] Speaker 02:
OK.

[00:12:16] Speaker 04:
Just to let you know, you're in due rebuttal.

[00:12:18] Speaker 02:
Okay, thank you, your honor.

[00:12:19] Speaker 02:
So on page 35, towards the bottom, we have the same, we have the, in the middle of the second to last paragraph, it says, we find that sonata.

[00:12:32] Speaker 02:
by specifically referring to its applications as web applications, strongly suggests that web pages are among the services it provides.

[00:12:39] Speaker 02:
So that's one flavor of the change in position.

[00:12:42] Speaker 02:
And then at the very end of that paragraph, it says, moreover, we find that AAPA expressly describes providing access to resources using URIs.

[00:12:52] Speaker 02:
So that's also a theory that's not in the petition.

[00:12:55] Speaker 02:
And then the conclusion is to say both Sonata and AAPA teach

[00:13:02] Speaker 02:
this.

[00:13:03] Speaker 02:
So what's saying is together they teach it.

[00:13:05] Speaker 02:
And that's the only way to read it because earlier the board concluded that Sonata does not disclose this limitation.

[00:13:12] Speaker 01:
Can you help me understand what is the difference between saying as a person who ordinaries go yard when I read a prior reference or I read yeah prior reference I understand this to be teaching something versus on the other hand saying it discloses something.

[00:13:29] Speaker 01:
Is there a difference?

[00:13:30] Speaker 02:
Yes, your honor, there is.

[00:13:31] Speaker 02:
And we know there's a difference in the board's opinion, right?

[00:13:34] Speaker 02:
Because the board thinks it doesn't disclose, but it suggests.

[00:13:38] Speaker 02:
So what's the difference between the two?

[00:13:40] Speaker 02:
The suggestion is you don't actually say it.

[00:13:43] Speaker 02:
Someone would think, oh, maybe it's obvious.

[00:13:46] Speaker 02:
But that's not the argument that's advanced in the petition.

[00:13:48] Speaker 01:
I guess that's what I'm asking.

[00:13:50] Speaker 01:
Do you think that they're saying it's obvious?

[00:13:53] Speaker 01:
Or do you think that they're saying,

[00:13:55] Speaker 01:
it's logical that a person of ordinary skill in the art would understand that this element is taught by this prior art reference, because logic tells me so.

[00:14:05] Speaker 01:
If they have a web server as a protected resource, that must mean that there's URLs or URIs.

[00:14:13] Speaker 02:
I think they're saying it's obvious, and the reason why is because... They don't have a reason.

[00:14:17] Speaker 01:
The exact theory, the language of... It would have been obvious to one of ordinary skill in the art to modify

[00:14:25] Speaker 01:
this reference so that the web server uses a URL or a URI.

[00:14:30] Speaker 02:
Your Honor, the position I would go back to is the petition used, it discloses, and the final written decision says it doesn't disclose.

[00:14:39] Speaker 02:
With that, I'll leave the rest of my time for review.

[00:14:42] Speaker 01:
I'm just trying to understand the difference between discloses and teaches.

[00:14:46] Speaker 02:
Well, it's not teaches, it's suggested.

[00:14:48] Speaker 02:
Actually, it says teaches.

[00:14:51] Speaker 01:
It's down at the bottom of the page on page 835.

[00:14:56] Speaker 02:
So this is Sonata and AAPA teaches.

[00:15:00] Speaker 02:
So this is a theory that's not advanced either, right?

[00:15:02] Speaker 02:
AAPA together with Sonata teach that.

[00:15:05] Speaker 02:
But that teaching is separate, right?

[00:15:08] Speaker 01:
Because I don't know.

[00:15:09] Speaker 01:
Because I'm reading this differently than you.

[00:15:11] Speaker 01:
When they say both Sonata and AAP, I think they mean singularly.

[00:15:16] Speaker 01:
Both of them individually teach.

[00:15:18] Speaker 02:
You know, I think in context of the sentence right above it, moreover, we find that AAPA expressly describes providing that, is giving the context as to the last sentence.

[00:15:28] Speaker 01:
So I think what this says is AAPA expressly describes you, and I both agree with that.

[00:15:33] Speaker 01:
But it says, I don't think Sonata expressly describes it, but it does teach it.

[00:15:40] Speaker 01:
Because it says, we're going to have predictive researches,

[00:15:45] Speaker 01:
They include protective resources on web pages.

[00:15:47] Speaker 01:
A person or an area is going to be able to read that to mean URLs.

[00:15:51] Speaker 02:
If we think teaches means this.

[00:15:54] Speaker 01:
Why am I wrong?

[00:15:55] Speaker 02:
Because, Your Honor, if we think teaches means the same thing as discloses, then the final written decision is inherently contradictory.

[00:16:03] Speaker 02:
Because at one point it says it doesn't disclose, and then later on it says teaches.

[00:16:07] Speaker 01:
That's not what I'm saying, but that's OK.

[00:16:12] Speaker 04:
All right.

[00:16:13] Speaker 04:
We'll give you a little time.

[00:16:14] Speaker 02:
Thank you, Your Honor.

[00:16:30] Speaker 03:
Your honor, Sean Blackburn from Sussman Godfrey for Zillow.

[00:16:35] Speaker 03:
May it please the court.

[00:16:37] Speaker 03:
I'd like to start, actually, where you just left off, Judge Stoll.

[00:16:42] Speaker 03:
We know that your interpretation of page 35 is correct because we can turn to page 71 where it's discussing Oasis.

[00:16:51] Speaker 03:
If you go to page 71 where it's discussing Oasis, it says expressly,

[00:16:56] Speaker 03:
As explained above, SUNATA teaches providing access to protected resources.

[00:17:01] Speaker 03:
It says nothing about the applicant admitted prior art.

[00:17:05] Speaker 03:
And it's very clear, I think, from the paragraph above that they're saying that both of these are there.

[00:17:11] Speaker 03:
The one of ordinary skill of art does not need to leave common sense at the door.

[00:17:17] Speaker 03:
Web applications have URLs.

[00:17:19] Speaker 03:
We cross-examined their expert on that using their own patents that say,

[00:17:23] Speaker 01:
word said in its sentence about discloses, it was saying expressly discloses?

[00:17:28] Speaker 01:
And if that's something different?

[00:17:30] Speaker 03:
So, well, probably if we go back to that, that was on anticipation.

[00:17:33] Speaker 03:
And there is some, like, if you read the exchange, it's actually not 100% clear what was being given away.

[00:17:43] Speaker 03:
If you go down to the second time the judge speaks, it says, and you're no longer contending this, do not expressly disclose the order.

[00:17:48] Speaker 00:
How do you mean?

[00:17:49] Speaker 00:
Oh, sorry.

[00:17:50] Speaker 03:
That's Appendix 16.

[00:17:52] Speaker 03:
It's in the final description decision, in which the judge is talking to Mr. Briggs, the lawyer for Rakuten.

[00:18:02] Speaker 03:
And Mr. Briggs says, correct.

[00:18:05] Speaker 03:
If you'd stop there, you'd say, well, you just conceded he doesn't disclose.

[00:18:09] Speaker 03:
But Mr. Briggs continues.

[00:18:10] Speaker 03:
He says, we're saying that Sunada discloses URLs in the context of web applications being accessed by users.

[00:18:17] Speaker 03:
And when you're doing that, a person of ordinary skill in the art would understand that URLs are commonly used to do that.

[00:18:23] Speaker 03:
So they were giving up on their anticipation argument, partly because it doesn't teach the entire federated computing environment.

[00:18:29] Speaker 03:
And the board, in dealing with the anticipation argument, says, we find the petitioner has not shown that Sonata discloses to protect your resources under our claim construction of the term.

[00:18:39] Speaker 03:
And accordingly, they've not shown by proponents that it anticipates.

[00:18:43] Speaker 03:
But when we go to the obviousness analysis on page 35, it expressly says that Sonata does teach providing access via URS.

[00:18:51] Speaker 04:
Well, it's all a little confusing.

[00:18:52] Speaker 04:
So you must be saying that what the board said here at A17 was a mistake by the board?

[00:19:01] Speaker 04:
And there's no other way.

[00:19:03] Speaker 04:
It's crystal clear when the board says, we find the petitioner has not shown that Sonata discloses protected resources.

[00:19:09] Speaker 04:
Well, it's also crystal clear.

[00:19:11] Speaker 03:
But it's also crystal clear they said it does in the obvious.

[00:19:14] Speaker 04:
Well, that's why I'm asking you to perhaps acknowledge that in your view necessarily, it's harder to make sense of your position that the board goofed at A17.

[00:19:27] Speaker 03:
I would hate to say the board goofed, but it's inarticulate.

[00:19:29] Speaker 03:
I think it's incorrect.

[00:19:30] Speaker 03:
I think it's incorrect, yes.

[00:19:31] Speaker 03:
It's incorrect to say that it doesn't disclose the protected resources with respect to the URL limitation.

[00:19:38] Speaker 03:
The reason is the URL limitation, if we step back.

[00:19:41] Speaker 01:
This is why I asked.

[00:19:42] Speaker 01:
You think on this page, the board here, when it said discloses, it's really suggesting expressly.

[00:19:49] Speaker 03:
Yes.

[00:19:49] Speaker 03:
It doesn't say URL.

[00:19:51] Speaker 01:
Because later when it talks about the mid-prior earth, it says that Sonata suggests, and when describing the mid-prior earth, it says it expressly discloses.

[00:20:06] Speaker 01:
Right.

[00:20:07] Speaker 03:
I think that is a distinction, but I also think it goes further than saying it's not a suggestion.

[00:20:10] Speaker 03:
It says Tsunada teaches.

[00:20:11] Speaker 03:
That's the conclusion.

[00:20:13] Speaker 03:
Both at 35 and at 71, Tsunada teaches, which is not a suggestion.

[00:20:20] Speaker 04:
So you pick A35 and A71, and you think the board was wrong on A17?

[00:20:27] Speaker 03:
Yes.

[00:20:27] Speaker 03:
I mean, I think if we step out for a second, of course they were wrong.

[00:20:31] Speaker 03:
Web applications are identified by URLs.

[00:20:34] Speaker 03:
We've all been alive since 1990.

[00:20:35] Speaker 03:
That's how it works.

[00:20:38] Speaker 04:
Well, I guess that depends on what the evidence shows.

[00:20:41] Speaker 03:
Well, and the evidence did show that.

[00:20:42] Speaker 03:
We cross-examined their expert on it.

[00:20:43] Speaker 03:
And their own patent said that web pages are identified by URLs.

[00:20:47] Speaker 04:
So in 35, when the board said web applications strongly suggest that web pages are among the services this provides, you don't think it's using the word suggests in the standard traditional section 103 sense?

[00:21:07] Speaker 03:
suggests motivation, the TSM test.

[00:21:11] Speaker 03:
I don't think so.

[00:21:12] Speaker 03:
I mean, why is it on the test anymore?

[00:21:14] Speaker 03:
But I think what you're saying is that... Strongly indicates?

[00:21:19] Speaker 03:
It's there, right?

[00:21:21] Speaker 03:
It's not inherent.

[00:21:22] Speaker 04:
You didn't say it's there.

[00:21:23] Speaker 03:
Well, no, they did.

[00:21:24] Speaker 03:
They did.

[00:21:24] Speaker 03:
They said it teaches later.

[00:21:25] Speaker 03:
The next sentence, they do.

[00:21:26] Speaker 03:
They get there.

[00:21:27] Speaker 03:
And they're dealing with web applications, all the evidence, and frankly, just having used the internet.

[00:21:34] Speaker 03:
Web applications are identified by URLs.

[00:21:36] Speaker 03:
Nobody quibbled with that, other than to say that some video happened.

[00:21:40] Speaker 03:
What's that?

[00:21:41] Speaker 04:
The other side's obviously quibbling.

[00:21:43] Speaker 03:
No, their expert admitted it.

[00:21:45] Speaker 03:
Their challenge is procedural, Your Honor.

[00:21:50] Speaker 04:
About whether Sonata discloses?

[00:21:52] Speaker 03:
About whether we had the theory in our petition about Sonata disclosing.

[00:22:01] Speaker 03:
See, their interpretation of the board's opinion

[00:22:05] Speaker 03:
goes wrong from the very beginning.

[00:22:06] Speaker 03:
Because they say the board relied only on these other two, which is that Sunana doesn't teach it, Sunana doesn't teach it, but Oasis and AAPA gap fill.

[00:22:15] Speaker 03:
They're missing the first part, which is that Sunana does teach.

[00:22:18] Speaker 03:
They don't challenge that.

[00:22:19] Speaker 03:
They don't really challenge that for substantial evidence.

[00:22:21] Speaker 04:
And what's the best evidence that web applications, as that term is used in Sunana, necessarily means URLs?

[00:22:30] Speaker 04:
It's just laid out right here, right?

[00:22:32] Speaker 04:
Right where?

[00:22:33] Speaker 04:
So this is, I'm looking for a piece of evidence.

[00:22:36] Speaker 04:
Sure.

[00:22:37] Speaker 03:
Well, so it is in the cross-examination of their expert.

[00:22:46] Speaker 04:
Did your expert say anything like web applications equals hyperlinks URLs?

[00:22:52] Speaker 03:
No, because it's impossible because we, not to break up the time machine again, but this came up in claim construction from their brief.

[00:23:00] Speaker 03:
Our expert only comes in with the petition.

[00:23:03] Speaker 03:
We didn't talk about URLs, right?

[00:23:05] Speaker 03:
We just talked about protected resources.

[00:23:07] Speaker 03:
URLs came in through their claim construction.

[00:23:09] Speaker 03:
And then the board was forced to like, well, is that fairly taught here?

[00:23:12] Speaker 03:
And it is.

[00:23:14] Speaker 04:
OK.

[00:23:14] Speaker 04:
So no supplemental declaration from your expert?

[00:23:17] Speaker 04:
Not on that point.

[00:23:18] Speaker 03:
But we cross-examined their expert.

[00:23:20] Speaker 01:
Is this cross-examination testimony that you're talking about?

[00:23:23] Speaker 03:
So it is referred to in the reply in the appendix, the actual, that portion of,

[00:23:29] Speaker 03:
His testimony is not in the appendix.

[00:23:32] Speaker 03:
It is, of course, still part of the record.

[00:23:34] Speaker 03:
And we get stuff.

[00:23:35] Speaker 03:
And I was looking at that this morning.

[00:23:37] Speaker 03:
It's not actually in there.

[00:23:37] Speaker 03:
If you look in the reply, it cites it.

[00:23:40] Speaker 03:
And he was cross-examined on three or four IBM patents, one of which says that web pages are always identified by URLs.

[00:23:48] Speaker ?:
OK.

[00:23:48] Speaker 04:
But it's, for some reason, not in the JA, and the board didn't rely on it.

[00:23:56] Speaker 03:
The board doesn't expressly cite it, but they say exactly what that says.

[00:24:00] Speaker 04:
No, help me out here.

[00:24:03] Speaker 04:
I feel like you're doing double talk and it's scaring me.

[00:24:06] Speaker 04:
Did the board cite the quote?

[00:24:09] Speaker 03:
No, Your Honor, they did not.

[00:24:10] Speaker 03:
The other side's expert.

[00:24:11] Speaker 03:
But we did, is what I'm saying.

[00:24:14] Speaker 04:
That's not what I care about.

[00:24:16] Speaker 04:
I care about what the board found and what it relied on.

[00:24:20] Speaker 01:
What is this site that's on page 835, the site that's at the end of the first full paragraph?

[00:24:29] Speaker 03:
That is the patent.

[00:24:31] Speaker 03:
That is the patent.

[00:24:32] Speaker 03:
That is the 346 patent.

[00:24:35] Speaker 03:
It's correct.

[00:24:36] Speaker 03:
The court does not cite what they're relying on for web applications in that thing.

[00:24:42] Speaker 03:
I didn't mean to imply that they did.

[00:24:43] Speaker 01:
So Dr. Shamos acknowledges that.

[00:24:46] Speaker 01:
It was conventional.

[00:24:47] Speaker 03:
Correct.

[00:24:48] Speaker 03:
So it's above, right?

[00:24:52] Speaker 03:
So in fact, they talk about a reply right above.

[00:24:53] Speaker 03:
The petitioner argues that Sonata discloses the combined use of the internet with web applications.

[00:24:58] Speaker 03:
And they cite to.

[00:25:01] Speaker 03:
So the X1036, I believe, that is the testimony of Dr. Shamos, where he is being cross-examined on the IBM patents that say what I've said they said.

[00:25:14] Speaker 04:
Where is that?

[00:25:15] Speaker 03:
That is right here.

[00:25:16] Speaker 03:
It's in the middle of the first full paragraph on Appendix 35.

[00:25:20] Speaker 03:
Dr. Shamos acknowledged that prior to 346, it was conventional to use URLs for internet communications, such as web pages.

[00:25:28] Speaker 03:
They quibble on the issue of certain videos.

[00:25:35] Speaker 04:
What about the combination theory that was presented in underneath the FCE heading in your petition?

[00:25:42] Speaker 03:
Yeah.

[00:25:43] Speaker 03:
And I think it, so again, you are, we, we said, we said that, uh, protected resources were disclosed.

[00:25:50] Speaker 03:
We didn't discuss URLs because that was a claim construction that came later.

[00:25:54] Speaker 03:
I think they know in their brief that that became an agreed construction in the district court case.

[00:25:58] Speaker 03:
But that was five months after we filed our petition, so it wasn't something we had prior knowledge of upfront when we filed ours.

[00:26:05] Speaker 03:
And so when the board construes protected resources, it goes to look and see, well, what are we saying?

[00:26:11] Speaker 03:
And I think it's, you know, if we go to the petition, I think we're on Appendix 323.

[00:26:28] Speaker 03:
No, sorry, that's that's an institution.

[00:26:32] Speaker 03:
I apologize Here we are it is on This section begins on page 142 of the appendix And if we slip over to 143 we explain as for FCE limitation as explained so not as close as web applications and

[00:26:58] Speaker 03:
describes such applications as providing services, and links system functionality to services which participate in the SSL.

[00:27:05] Speaker 03:
We continue on.

[00:27:06] Speaker 03:
Again, we're talking about in the federated computing environment.

[00:27:10] Speaker 01:
I'm sorry, this is on page 143.

[00:27:12] Speaker 03:
143, the bottom paragraph.

[00:27:15] Speaker 01:
OK, thank you.

[00:27:15] Speaker 03:
Yes, the bottom full paragraph, anyway.

[00:27:17] Speaker 03:
Sunada discloses web applications, describes such applications as providing services, and links system functionality to services which participate.

[00:27:26] Speaker 03:
If we go over to page 145, we continue, because again, we're talking about the federated environment.

[00:27:31] Speaker 03:
Like, you need links because it's a federated environment, correct?

[00:27:35] Speaker 03:
And in discussing APA, the identity provider, which is what this is being used for here, right, therefore offers links to federated resources.

[00:27:43] Speaker 03:
The offer may be in the form of hyperlinks to resources at federated websites, or more generally, federated domains.

[00:27:51] Speaker 03:
And so there's not this separation between protected resources and a federated computing environment that IBM is trying to paint here.

[00:27:59] Speaker 03:
They're part and parcel.

[00:28:01] Speaker 03:
It's just what's in the box.

[00:28:03] Speaker 03:
If you have this federated computing environment, then the APA, we would clearly disclose that the APA is teaching these federated domains and these resources.

[00:28:13] Speaker 03:
I think it's perfectly fair for the board to rely on it.

[00:28:17] Speaker 03:
And to be clear, this is not a situation

[00:28:21] Speaker 03:
in an evasive case or Belkin or anything like that, where new evidence pops up in a reply brief, they're not given an opportunity to respond to it.

[00:28:29] Speaker 03:
This was day one.

[00:28:31] Speaker 03:
They had every opportunity to respond to these arguments, and they just failed.

[00:28:37] Speaker 00:
Can I ask you a question, a case study question?

[00:28:41] Speaker 03:
I don't hope to answer it.

[00:28:44] Speaker 00:
I hope you do as well.

[00:28:48] Speaker 00:
We're talking here about what might be thought of as some pretty fine distinctions between concepts like disclosed for anticipation purposes, where there's a degree of precision, finickiness.

[00:29:08] Speaker 00:
I don't mean that in a pejorative way because anticipation has some very important consequences.

[00:29:14] Speaker 00:
And maybe next down on the

[00:29:17] Speaker 00:
in whom the specter might be teach, and then that might be suggest.

[00:29:23] Speaker 00:
Is there in our case law, a case law that addresses a matter of alterations between what was precisely said in the petition and what is later said in the proceedings?

[00:29:46] Speaker 00:
Putting aside questions of notice, I don't think there's any question at all here about notice and opportunity to respond, because this all came up at the institution.

[00:29:57] Speaker 00:
So this is about the law about you really, really, really are stuck with what's in the petition, or maybe not like so much.

[00:30:07] Speaker 00:
Is there anything that talks about the degree

[00:30:16] Speaker 00:
in a petition and what's said later.

[00:30:18] Speaker 00:
Because that feels to me like what's going on here.

[00:30:22] Speaker 00:
There is small differences that sometimes in the other context matter, like anticipation.

[00:30:29] Speaker 00:
Express or inherent, that really is a very strong standard.

[00:30:37] Speaker 00:
And that's why I want to say core photonics and other kinds of cases that talk about, yeah, you could do a little bit of development that's

[00:30:46] Speaker 00:
Is there something that allows us to take into account how much of a small gradation there may be?

[00:30:55] Speaker 03:
Yes.

[00:30:56] Speaker 03:
I hope you understand that.

[00:30:57] Speaker 03:
Your Honor mentioned the Corp of Tonics case, but it's also, I think it gets wrapped into the abuse of discretion standard on their interpretation of the petition and what grounds it speaks to.

[00:31:08] Speaker 03:
And the VLSI case found that when the board gave notice of the interpretation that they had, then there was no violation.

[00:31:16] Speaker 03:
I don't think that the law requires you to stick absolutely strictly to what was said in the petition, particularly when the claim construction changed things.

[00:31:31] Speaker 03:
You have to look at what was fairly taught.

[00:31:33] Speaker 03:
And I think in this situation, it's fairly taught.

[00:31:36] Speaker 03:
Right.

[00:31:37] Speaker 04:
We do have case law that if the petition

[00:31:40] Speaker 04:
rests on one conception of what the claim means, but then perhaps either the patent owner contests that or the board says something differently about the meaning of the claim that the petitioner is permitted to adjust to that understanding or present argument of why, under that different construction, the prior art still renders the claim unpatentable.

[00:32:11] Speaker 03:
Right.

[00:32:11] Speaker 03:
And that's what we did here.

[00:32:14] Speaker 03:
We don't mention URLs in the petition, because it wasn't part of the construction that we were using, plain and ordinary meaning.

[00:32:21] Speaker 03:
And once they come in, then we started developing our evidence, which is mainly through cross-examination of their expert at that stage in a key tab, presumably, to show that this does, in fact, teach URLs.

[00:32:32] Speaker 03:
And it's strongly implied, if not taught or disclosed, by the fact that they're using web pages and web applications.

[00:32:40] Speaker 03:
Your honor, I notice that I'm well into my rebuttal.

[00:32:42] Speaker 03:
I think I will rest on the papers on our cross-appeal, unless you have any questions about our standing.

[00:32:49] Speaker 03:
We had received the order.

[00:32:51] Speaker 03:
If not.

[00:32:53] Speaker 04:
No.

[00:32:53] Speaker 04:
Thank you.

[00:32:58] Speaker 04:
All right.

[00:33:00] Speaker 04:
Let's give counsel two minutes.

[00:33:05] Speaker 02:
Would you like me to address the cross-appeal too, Your Honor?

[00:33:11] Speaker 04:
No, it wasn't raised by the other side.

[00:33:14] Speaker 02:
Okay, fair enough.

[00:33:16] Speaker 02:
Your Honor, I can see that there's in your minds, you know, an issue of what is the language, how crisp does it need to be?

[00:33:26] Speaker 02:
And I would submit that the issue that distinguishes this case from kind of the run of the mill IPR in terms of what language was used and what's in the final written decision is the decision to

[00:33:40] Speaker 02:
mirror the language in the previous IPR.

[00:33:44] Speaker 02:
So I'm not here to argue that any time the language is a little bit different, that there's an issue.

[00:33:50] Speaker 02:
But what I am here to argue is when there's an explicit decision, a strategic decision.

[00:33:55] Speaker 00:
Let me just ask, suppose there had been one additional sentence, right?

[00:33:59] Speaker 00:
The opening sentence says, this expressly teaches, so we get anticipation.

[00:34:05] Speaker 00:
Collateral will stop all this help.

[00:34:07] Speaker 00:
A next sentence that says,

[00:34:09] Speaker 00:
And even if it doesn't, it certainly puts this idea pretty immediately into the mind of the skilled reader.

[00:34:18] Speaker 00:
Let's call that teaching, let's call it suggestion.

[00:34:21] Speaker 00:
In what way would you be prejudiced?

[00:34:24] Speaker 02:
I think we would be prejudiced because they were advancing a collateral estoppel argument.

[00:34:29] Speaker 02:
So we had to respond in our group.

[00:34:32] Speaker 00:
They still have their collateral estoppel argument.

[00:34:35] Speaker 00:
This is a next.

[00:34:39] Speaker 00:
not inconsistent alternative.

[00:34:44] Speaker 02:
In their mind, I believe, Your Honor, it was supposed to be very clear.

[00:34:48] Speaker 02:
And it would have upset how clear it was to kind of depart from the initial petition.

[00:34:53] Speaker 02:
So I do think as kind of a statutory requirement under SAS and under this court's precedent, we have to stick with what the petition argued.

[00:35:04] Speaker 02:
And this court is very, very particular about how things are used.

[00:35:09] Speaker 02:
For example, in the Oren's Tech case,

[00:35:13] Speaker 02:
which we cite, a block quote about the prior art was in the petition, but it was used for a separate context, and the court said you cannot switch the context in which you use that block quote.

[00:35:27] Speaker 02:
And then, oh, I'm sorry, that was the Amira Chem case where that happened.

[00:35:31] Speaker 02:
In the Orange Tech case, similarly, there was a theory of a motivation to modify a basis for finding, to modify a prior art reference.

[00:35:42] Speaker 02:
And the court said, you can't use that motivation to modify to meet a limitation about a 30,000 pounds, you know, how much it had to be.

[00:35:52] Speaker 02:
And in both those circumstances, you know, the content was there.

[00:35:57] Speaker 02:
But the theory was not there.

[00:36:00] Speaker 02:
And that's what I would submit really distinguishes this case and why it's so important to look at what it was said.

[00:36:06] Speaker 02:
And my final point is, the counsel for Zillow said the board made a mistake.

[00:36:13] Speaker 02:
And what the board made a mistake on was exactly the language that the petition used.

[00:36:20] Speaker 02:
We can't just ignore that, especially when the cross appeal was about you can't have inconsistency in the petition.

[00:36:26] Speaker 04:
Mr. Hussein, thanks very much.

[00:36:28] Speaker 04:
We're out of time.

[00:36:29] Speaker 04:
The case is submitted.

[00:36:30] Speaker 04:
Thank you, Your Honors.