[00:00:00] Speaker 02:
The next case for argument is 24-1890 VL Collective versus Unified Patents.

[00:00:09] Speaker 02:
Mr. Barron?

[00:00:10] Speaker 02:
Good morning.

[00:00:11] Speaker 01:
Good morning, Your Honors.

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

[00:00:12] Speaker 01:
Brian Barron for Appellant Video Labs.

[00:00:15] Speaker 01:
The board's decision should be reversed for three independent reasons.

[00:00:20] Speaker 01:
First, the board made a dispositive claim construction error by reading part of the patent's express definition of content related.

[00:00:27] Speaker 01:
That's the phrase within the respective data file out of the claims.

[00:00:31] Speaker 01:
Second, the board made another dispositive claim construction error by allowing the claimed assignment rule to use timestamps, even though that was a key distinction over the prior art.

[00:00:42] Speaker 01:
And third, Unified's petition failed to develop any argument that Sonohar has alleged first and second data segments or content related was a legal error for the board to allow Unified to fill that gap in its petition for the first time in its reply.

[00:00:57] Speaker 01:
I'll start with the within claim construction issue.

[00:01:01] Speaker 01:
Everybody agrees and has agreed throughout this case that the term content-related is expressly defined in the patent.

[00:01:09] Speaker 02:
Can I ask you, sorry to interrupt, but just a threshold question.

[00:01:11] Speaker 02:
My understanding was that even though the board didn't agree with your construction, it used your construction when it was analyzing the prior art.

[00:01:19] Speaker 02:
Am I wrong about that?

[00:01:20] Speaker 01:
I don't think that's correct, Your Honor.

[00:01:22] Speaker 01:
In the final written decision, the board expressly deleted within the respective data file from the construction

[00:01:29] Speaker 01:
It was using, that's at appendix 18, note 5.

[00:01:32] Speaker 01:
And then in the rehearing decision, I think the board tried to clean up that mistake by saying it was putting within the respective data file back in.

[00:01:43] Speaker 01:
But where it ended up on the substance was exactly the same place.

[00:01:47] Speaker 01:
So I think it just changed an express claim construction omitting that term.

[00:01:51] Speaker 01:
to an implicit claim construction, effectively admitting it by giving it no meaning at all.

[00:01:57] Speaker 03:
That's your interpretation.

[00:01:58] Speaker 03:
But at least the board said expressly it was evaluating the prior Sonohara, I think, under your construction.

[00:02:07] Speaker 03:
At least said it was doing that, right?

[00:02:10] Speaker 01:
Yes.

[00:02:11] Speaker 01:
Yes, Your Honor.

[00:02:12] Speaker 01:
But I think under Google against

[00:02:14] Speaker 01:
Eco factor even when the board doesn't think it's engaging in claim construction if what it's doing is establishing the scope of the patented subject matter Then it's doing claim construction.

[00:02:23] Speaker 01:
I think that's what happened here, and I think that's why both sides are Available to you the sites where the board discussed its application of

[00:02:35] Speaker 02:
what it thought was your construction.

[00:02:37] Speaker 02:
Can you just point me to that?

[00:02:39] Speaker 01:
So in the rehearing decision, I think it's the discussion from Appendix 54 to 59.

[00:02:48] Speaker 01:
And the board's theory on Appendix 55, the board talks about how the meaning within Sonohara's two separate source files is imparted by the headers in the single file, which is

[00:03:02] Speaker 01:
essentially the same place the board was in the final written decision.

[00:03:06] Speaker 01:
And then on pages 57 to 59, it talks about this idea that you can infer syntactical meaning.

[00:03:15] Speaker 01:
And I think an example might help understand what the board's construction does and why it doesn't put any meaning within the source files.

[00:03:28] Speaker 01:
movie on a DVD in a single, unsegmented file, no data segments, no syntactical meaning.

[00:03:35] Speaker 01:
You copy that onto a computer, take the DVD out, don't do anything else with it.

[00:03:39] Speaker 01:
There's still no data segments on the DVD.

[00:03:42] Speaker 01:
Now you segment the file on the computer, and they're in order.

[00:03:46] Speaker 01:
The movie has a beginning, middle, and end, so you can give the segments syntactical meaning within the segmented file on the computer.

[00:03:55] Speaker 01:
Under the boards and unified's interpretation, you've now also given syntactical meaning to the data segments within the DVD.

[00:04:02] Speaker 01:
Even though you haven't changed anything about it, there are still no segments there.

[00:04:06] Speaker 01:
There's no file.

[00:04:07] Speaker 01:
There's nothing that tells a computer that anything has happened with the DVD.

[00:04:12] Speaker 01:
You plug it into a different computer, and that computer has no idea that there were ever segments at all, let alone that they have syntactical meaning within the file on the DVD.

[00:04:22] Speaker 01:
the board's treatment of Sonohara's single file, which Sonohara's headers give that syntactical meaning, as then going back to the source files, just because we understand as humans how the source files became the single file,

[00:04:43] Speaker 01:
There's no actual defined relationship that's connecting those.

[00:04:48] Speaker 04:
If I understand your argument, are you saying that in essence the originating files need to contain data segments themselves?

[00:05:02] Speaker 04:
That's how I understood your blue brief argument.

[00:05:05] Speaker 04:
Am I misunderstanding that?

[00:05:07] Speaker 01:
I don't think the files necessarily need to contain data segments, but the content-related first data segments need to have syntactical meaning within the first data file, and the content-related second data segments need to have syntactical meaning within the second data file.

[00:05:21] Speaker 01:
I think as a practical matter, that means that there are going to have to be segments defined with respect to that file.

[00:05:27] Speaker 01:
But the right.

[00:05:30] Speaker 04:
Okay.

[00:05:30] Speaker 04:
So I thought your blue brief was saying the originating files, the source files needed to have data segments.

[00:05:37] Speaker 04:
You're not saying that today.

[00:05:40] Speaker 01:
I think the requirement is syntactical meaning within the respectivity.

[00:05:44] Speaker 04:
I understand.

[00:05:44] Speaker 04:
You have to understand from this side's perspective, this is rather abstract.

[00:05:50] Speaker 04:
We're talking about contemplated and syntactical meaning.

[00:05:54] Speaker 04:
And what I really need is just something concrete to focus on.

[00:06:00] Speaker 04:
So we're focused on whether Sonohara's source files that

[00:06:08] Speaker 04:
the audio file and the video file have certain things or lack certain things.

[00:06:14] Speaker 04:
And you're not saying that Sonohara's original source files need to have data segments.

[00:06:20] Speaker 04:
Is that right?

[00:06:21] Speaker 04:
That's right.

[00:06:22] Speaker 04:
I think it is helpful

[00:06:23] Speaker 04:
So let's put that to the side.

[00:06:25] Speaker 04:
If that was an argument, then it's off the table.

[00:06:28] Speaker 04:
Now the next question is, do those originating files in Sonohara, do they need to have some syntactical meaning for the video content and the audio content, right?

[00:06:41] Speaker 01:
That's really the question.

[00:06:42] Speaker 01:
Not quite.

[00:06:44] Speaker 01:
I think everybody agrees they need to have syntactical meaning, but the board and Unified are saying, well, they have syntactical meaning within the single file, and that's good enough.

[00:06:53] Speaker 04:
What we're saying is that... I think to put a finer point on it, I think the board was saying, we know that the

[00:06:59] Speaker 04:
the downstream file where everything gets combined together has syntactical meaning, has a header.

[00:07:06] Speaker 04:
And because it exists there, we can infer back upstream to the originating source files that they too would likewise have some kind of syntactical meaning up there too.

[00:07:21] Speaker 04:
That's my understanding of the

[00:07:23] Speaker 01:
And I think that's where the board went wrong, because you've got the segments in the single file, they're segments of, they came from the originating file, but there's nothing tying their syntactical meaning back to that original file, as opposed to just having syntactical meaning in general.

[00:07:41] Speaker 01:
I think if you read it the board's way, within the respective data file doesn't need to be in the definition, because

[00:07:47] Speaker 01:
the segments just by virtue of being in order, they have syntactical meaning, and you can just apply that back to a different file without any stored relationship telling the computer that that meaning exists within the originating file.

[00:08:01] Speaker 04:
I don't want to spend too much time on this because you have other arguments, but when I read column four of your patent, 794, where the definition for content related is, there's a lot of explanation of how

[00:08:15] Speaker 04:
You know, there's a fragmentation module aside from the first data file, second data file.

[00:08:20] Speaker 04:
And then there's also something called a fragmentation description file.

[00:08:24] Speaker 04:
And the fragmentation description file, which is a separate file from the data files, seems to have a lot of the what I'll call header type information.

[00:08:36] Speaker 04:
And so then that raises the question, well, what is it in the data files that has to have syntactical meaning

[00:08:43] Speaker 04:
And then there's a sentence starting at line 49 of column 4.

[00:08:52] Speaker 04:
By the first data segments, S1 is meant data segments of the first data file D1, which have a content-related meaning for the first data file D1, such as, for example, individual images in a video sequence or individual spoken words in an audio sequence.

[00:09:13] Speaker 04:
And so to me, that sentence suggests that when you have the video in sequence or the audio in sequence stored in the original data files, that's what we mean here in this patent by content-related meaning.

[00:09:30] Speaker 01:
So I think the key distinction here is that the fragmentation description files tell you where the segments are in the data files D1 and D2.

[00:09:42] Speaker 04:
Well, there are no data segments in the D1 data file, right?

[00:09:46] Speaker 04:
That happens later when you get to the fragmentation module and then you chop up the data file into data segments.

[00:09:54] Speaker 01:
They're not physically separated yet, but they're defined and given meaning by the fragmentation description file.

[00:10:00] Speaker 01:
That's figure two of the patent is an example of that.

[00:10:03] Speaker 01:
And there are lines of code identifying.

[00:10:05] Speaker 04:
Talking about this figure, right?

[00:10:09] Speaker 01:
Yes.

[00:10:09] Speaker 01:
What those are saying in my rudimentary knowledge of computer code is that there's

[00:10:15] Speaker 01:
it tells you at which byte a data segment begins and how many bytes it runs for.

[00:10:19] Speaker 01:
So it's identifying the beginning and end of each data segment, and it's doing that for file D1 in this case.

[00:10:28] Speaker 01:
So I think that is similar to Sonohara's header and track information, but Sonohara only ever does that for the combined file.

[00:10:35] Speaker 01:
It doesn't do it for the source files.

[00:10:40] Speaker 01:
Whereas here there's a

[00:10:43] Speaker 01:
file identifying the segments and giving them meaning within file D1 and within file D2.

[00:10:51] Speaker 03:
If I might just one more on this.

[00:10:54] Speaker 03:
The board says that Sonohara does actually teach this limitation with syntactical meaning under your construction.

[00:11:04] Speaker 03:
Our review of that reading of Sonohara is for substantial evidence, is it not?

[00:11:09] Speaker 01:
That's correct, but I think the board is relying on its view of what within the respective data file requires or really doesn't require.

[00:11:19] Speaker 01:
And that issue is reviewed de novo.

[00:11:24] Speaker 02:
OK, you said you had three points.

[00:11:26] Speaker 02:
At least pick the next most important and go for it.

[00:11:29] Speaker 01:
Yeah, maybe I'll just briefly address the assignment rule claim construction issue.

[00:11:33] Speaker 02:
The assignment rules... Can I just... And I'm not going to use this against you, but I'm always confused in these cases.

[00:11:38] Speaker 02:
We have so many issues, different patents, different claims.

[00:11:42] Speaker 02:
If we were... Do you have to win on both of those or are they completely different in terms of the impact they would have on the result here?

[00:11:49] Speaker 01:
I think any of our three issues

[00:11:52] Speaker 01:
words reversal on all the claims the board found unpatentable, because the assignment rule limitation is in all the claims, the content related limitation is in all the claims.

[00:12:02] Speaker 02:
Thank you.

[00:12:03] Speaker 02:
Okay, so assignment rule.

[00:12:05] Speaker 01:
The assignment rules are really the core of the invention, and I think you can see that both throughout the specification and the prosecution history, and in particular they are a departure from prior art techniques that relied heavily on timestamps or other exact

[00:12:21] Speaker 02:
So is the issue all about timestamps, whether timestamps were required under the independent claim?

[00:12:26] Speaker 01:
I think the issue here is because the board made a finding that Sonohara relies on timestamps for any assignment rule there.

[00:12:33] Speaker 01:
So I don't think you need to decide what else assignment rules can't be.

[00:12:37] Speaker 01:
If they can't be timestamps, then the board's decision should be reversed.

[00:12:40] Speaker 04:
So I think one big problem is the question of forfeiture, because your argument below was

[00:12:48] Speaker 04:
trying to ask for an understanding of an assignment rule that excluded something called exact timing information.

[00:12:55] Speaker 04:
Now on appeal, although you make a nod to exact timing information, you're really focused on time stamps, excluding time stamps.

[00:13:05] Speaker 04:
And the question is whether that's a different argument than you made below.

[00:13:09] Speaker 04:
I saw the transcript from the patent board hearing where there was a big argument by your side that

[00:13:16] Speaker 04:
Timestamps are not exact timing information.

[00:13:20] Speaker 04:
Those are two different things that have two different scopes of exclusion.

[00:13:26] Speaker 04:
And in fact, it's wrong to think of claim one, which would, in your view, exclude exact timing information.

[00:13:37] Speaker 04:
That would have different scope from the dependent claims, which specifically exclude timestamps.

[00:13:43] Speaker 04:
So first question is, why

[00:13:47] Speaker 04:
Is it permissible for you to pivot from one understanding of the claim with a certain scope of excluding exact time and information to now on appeal a different claim scope where now you're excluding something of a different scope, time stamps?

[00:14:05] Speaker 01:
Our position as to the claim scope has not changed.

[00:14:08] Speaker 01:
We continue to believe that exact timing information is the best way to describe what is carved out.

[00:14:14] Speaker 01:
We have maintained all along.

[00:14:15] Speaker 01:
The board recognizes this on Appendix 22.

[00:14:18] Speaker 01:
We set it on Appendix 1167.

[00:14:21] Speaker 01:
Time stamps are a subset of exact timing information.

[00:14:26] Speaker 01:
Exact timing information is broader, but because the board made a finding that Sonohara's assignment rule relies on timestamps, there's no need to decide that broader dispute about exact timing information.

[00:14:41] Speaker 01:
It's sufficient to decide timestamps.

[00:14:44] Speaker 01:
So that's the point we're trying to make.

[00:14:45] Speaker 01:
The board's decision narrowed the dispute.

[00:14:48] Speaker 01:
Our position as to what the claims mean has not changed.

[00:14:52] Speaker 03:
So you'd be perfectly fine if we only evaluate whether your original position that exact timing information is excluded, whether that's the correct construction or not.

[00:15:02] Speaker 03:
We don't have to worry about your refined position here.

[00:15:05] Speaker 03:
Is that fair?

[00:15:07] Speaker 01:
Well, I think that includes the question whether timestamps are included, because timestamps are part of exact timing information.

[00:15:15] Speaker 03:
Right.

[00:15:16] Speaker 03:
come up with a more reasonable claim construction here than the one you advocated at the board.

[00:15:21] Speaker 03:
If we see it that way, you're content with us just looking at your arguably slightly less reasonable position at the board, right?

[00:15:29] Speaker 03:
You're saying you only narrowed it because of you don't think we have to address, like you're doing it for our benefit.

[00:15:36] Speaker 03:
But if we don't think it's to our benefit, we should just go ahead and evaluate the construction you presented to the board.

[00:15:42] Speaker 03:
Is that correct?

[00:15:43] Speaker 01:
I think you can do that, and I think it's exactly the same construction.

[00:15:48] Speaker 02:
OK.

[00:15:48] Speaker 02:
Thank you.

[00:15:49] Speaker 02:
We've exhausted our rebuttal.

[00:15:50] Speaker 02:
We'll restore some time.

[00:15:52] Speaker 02:
Let's hear from the other side.

[00:15:53] Speaker 02:
Thank you.

[00:16:01] Speaker 02:
Ms.

[00:16:01] Speaker 02:
Swu, good morning.

[00:16:02] Speaker 02:
Please proceed.

[00:16:03] Speaker 00:
May it please the court, Laura Vu on behalf of Unified Patents.

[00:16:07] Speaker 00:
I'll start with the content-related data segments limitation and the

[00:16:13] Speaker 00:
their construction within the respective data file segment.

[00:16:20] Speaker 00:
The board applied Video Labs' desired construction in the final written decision and the rehearing decision.

[00:16:26] Speaker 00:
And so because the board applied that construction, there is no longer a claim construction dispute, and there is only a substantial evidence dispute before the court.

[00:16:37] Speaker 00:
The board's analysis at appendix 38 to 42 in the final written decision and appendix 55 to 59 in the rehearing decision cite more than substantial evidence from the Sunohara prior art reference and the expert declaration supporting the petition and the reply.

[00:16:57] Speaker 03:
What about the argument that they didn't really apply the proposed construction?

[00:17:04] Speaker 03:
They applied implicitly a different construction than what VL Collective was really arguing for?

[00:17:13] Speaker 00:
Yes, Your Honor.

[00:17:14] Speaker 00:
So that is not true.

[00:17:16] Speaker 00:
The board applied their construction.

[00:17:17] Speaker 00:
And in the board's analysis, they repeatedly referred to syntactical meaning within the originating files.

[00:17:26] Speaker 00:
I am happy to go through the specific pages where the board cites the originating files, but the board's view was that it was applying syntactical meaning within the respective data file, as in the originating file, which is exactly what Videolabs was arguing for.

[00:17:50] Speaker 04:
So this has been a bit of a moving target for me, this issue, in terms of what is the actual argument in front of us.

[00:17:59] Speaker 04:
Is it your view nothing is left other than whether there is a lack of substantial evidence for the fact finding that you can infer back from file one

[00:18:14] Speaker 00:
File ones header information that the source files 11 and 12 also would have syntactical meaning information there Yes, judge chen That is there is no longer a claim construction dispute because of their concessions in the great brief that the originating files do not have to have data segments and the file that

[00:18:44] Speaker 00:
provides the syntactical meaning that defines the segments also does not have to be within the originating files and so because those issues have now been removed all it is is whether or not there's substantial evidence as to whether there is syntactical meaning from in the originating files and here the theory that the board found was that

[00:19:11] Speaker 00:
In the production of the file one, the system in Sonohara is looking at the originating files and is processing those originating files.

[00:19:23] Speaker 00:
It is taking that file and splitting it up into segments and then assigning the header information and the track identification to those originating files.

[00:19:34] Speaker 00:
And then that information is ultimately stored

[00:19:38] Speaker 00:
in the file one in the header information with the data segments.

[00:19:43] Speaker 00:
But the syntactical meaning is the same in both the file one and the originating files because the originating files have to be processed in order to produce the file one.

[00:19:56] Speaker 00:
And again, that finding by the board is supported by substantial evidence.

[00:20:03] Speaker 04:
Can we talk about exonics for a little bit?

[00:20:06] Speaker 04:
Yes.

[00:20:07] Speaker 04:
Obviously, in exonics, we held that it is permissible for a petitioner in its reply brief to respond to a claim construction argument raised in the patent owner response, even though the petitioner didn't

[00:20:27] Speaker 04:
raised this very claim construction issue in its own petition.

[00:20:33] Speaker 04:
And I'm just wondering, do you think there's any limits to that in which a petitioner never has to address any potential, maybe even

[00:20:46] Speaker 04:
super obvious claim construction matter in its petition and it can just sit back and wait to see if the patent owner is going to raise it in its patent owner response.

[00:20:58] Speaker 04:
Only then will the petitioner need to address it in the reply.

[00:21:02] Speaker 04:
Are there no circumstances where it would be wrong and inappropriate to permit that kind of practice?

[00:21:10] Speaker 00:
I don't think there are no circumstances where the petitioner doesn't have to address the

[00:21:15] Speaker 00:
super obvious claim construction issues.

[00:21:17] Speaker 00:
But I don't think that's the case here.

[00:21:19] Speaker 04:
Why not?

[00:21:21] Speaker 04:
This is just lexicography out of the specification.

[00:21:24] Speaker 00:
I disagree that it is lexicography out of the specification, primarily because even in the preliminary response, video labs didn't even assert that that was the construction for the content-related data segments term.

[00:21:37] Speaker 00:
They proposed a different construction, what ultimately

[00:21:42] Speaker 00:
got referred to in the IPR as the preferred construction.

[00:21:46] Speaker 00:
So even in the preliminary response, they didn't believe that... They didn't cite the same passage for content related?

[00:21:55] Speaker 00:
They cited that passage, but at appendix 984, they said that language cannot be adopted as the construction.

[00:22:01] Speaker 04:
But that's because they wanted to put an extra gloss on that very sentence.

[00:22:05] Speaker 04:
They wanted to... Yes, they wanted to... Not that they were pivoting away from the sentence.

[00:22:08] Speaker 04:
They were just trying to offer more meaning to it.

[00:22:14] Speaker 00:
I think I respectfully disagree that they were trying to just only offer more meaning.

[00:22:22] Speaker 00:
I think they wanted to provide a different, more detailed, more narrow construction.

[00:22:31] Speaker 00:
But what I will say is here, the petitioner, Unified, did consider this definitional language, this definition and specification,

[00:22:43] Speaker 00:
explicitly address that language in the petition, but it did consider it and presented a theory that was consistent with that language.

[00:22:51] Speaker 00:
And so when that issue arose in the IPR after the patent owner response, video labs showed that the theory presented in the petition also satisfied that additional language.

[00:23:07] Speaker 00:
And I think under axonics, that is entirely appropriate here.

[00:23:13] Speaker 00:
If there are no further questions on content-related data segments, I'll turn to the assignment rule construction.

[00:23:20] Speaker 00:
I can start with the forfeiture argument, because that's what the court has spent most of its time on this morning.

[00:23:31] Speaker 00:
Video labs.

[00:23:31] Speaker 02:
I'll also cover where your friend landed.

[00:23:34] Speaker 00:
Yes.

[00:23:34] Speaker 00:
Yes, Your Honors.

[00:23:36] Speaker 00:
So just very briefly on the forfeiture argument, we stand by that

[00:23:42] Speaker 00:
Video Labs forfeited its narrower construction of timestamps, because that's not the argument they raised before the board.

[00:23:53] Speaker 00:
However, even on the merits, their construction is wrong.

[00:23:57] Speaker 00:
And that's because the independent claims cannot have meaning, or sorry, the dependent claims cannot have meaning if the independent claims

[00:24:09] Speaker 00:
are construed to exclude timestamps.

[00:24:11] Speaker 02:
Yeah, but you know, our jurisprudence on claim differentiation is a bit mixed.

[00:24:16] Speaker 02:
I mean, it's not a definitive.

[00:24:19] Speaker 02:
automatic claim differentiation.

[00:24:21] Speaker 02:
And in fact, in many cases, when claim differentiation is raised, we'll say, yeah, but we use it less rather than more when we're confronted by it.

[00:24:34] Speaker 02:
I don't know.

[00:24:34] Speaker 02:
That's not statistically correct, but that's my sense of it.

[00:24:37] Speaker 02:
So beyond claim differentiation, what have you got?

[00:24:41] Speaker 00:
So even beyond claim differentiation, the specification and the prosecution history does not disclaim

[00:24:47] Speaker 00:
an assignment rule that uses timestamps.

[00:24:51] Speaker 02:
There is an embodiment.

[00:24:53] Speaker 00:
There's one embodiment in the specification that mentions that the assignment rule doesn't use timestamps.

[00:25:00] Speaker 00:
But that embodiment and that discussion relates to a benefit of the assignment rule.

[00:25:05] Speaker 00:
It does not disclaim the use of timestamps in the assignment rule.

[00:25:10] Speaker 00:
And there is a part of the specification that discusses the use of timestamps even in the assignment rule.

[00:25:17] Speaker 00:
So the specification and the patent does not completely get rid of the use of timestamps entirely.

[00:25:26] Speaker 00:
And that is at column six, lines 43 to 49 of the specification.

[00:25:33] Speaker 00:
In that part of the specification, the patent is talking about how two data segments are assigned to each other and then output with the same timestamp.

[00:25:44] Speaker 00:
And that is very similar to what is going on in the Sonohara prior art reference, where you are assigning segments of image data and audio data with each other, and they have the same timestamp.

[00:25:57] Speaker 04:
But let's assume for the moment that the specification is not dispositive, so that the issue really boils down to the prosecution history.

[00:26:09] Speaker 04:
They clearly distinguished away these two references, Shin and Rosano.

[00:26:17] Speaker 04:
How would you articulate what it is that they ended up surrendering through those two arguments to overcome those references?

[00:26:28] Speaker 04:
Obviously, it's your view that it's wrong to say that they disclaimed exact timing information or that they disclaimed

[00:26:40] Speaker 00:
time stamps but they gave up something so what how would you articulate it can you say it to me in one sentence they gave up X yes what they gave up is that the prior art did not disclose a specific method of an assignment rule where you assign distinct segments of two data streams to each other so it was a much narrower could you say that one more time yes so the

[00:27:10] Speaker 00:
Prior art did not disclose an assignment rule where you assign distinct segments of two data streams to one another.

[00:27:18] Speaker 00:
That's how the applicant distinguished the invention, the claims, from the prior art.

[00:27:26] Speaker 00:
So the assignment rule talks about assigning segments of data from the audio stream to segments of data from a video stream, for example.

[00:27:40] Speaker 00:
these segments are always going to be output with one another based on this assignment rule.

[00:27:45] Speaker 00:
And the prior art did not disclose that at all.

[00:27:49] Speaker 00:
In the Shin reference, the prior art only used timing information for synchronization.

[00:27:56] Speaker 00:
There was no assignment rule, none.

[00:27:58] Speaker 00:
There were no assignment of distinct segments from two different data streams to one another.

[00:28:03] Speaker 04:
It created some kind of

[00:28:05] Speaker 04:
reference time point and then assigned particular data segments to that reference time point.

[00:28:14] Speaker 00:
So it was only looking at timestamps and just looking at the timestamps to synchronize.

[00:28:22] Speaker 04:
Okay, it sounds like you're saying maybe they gave up timestamps.

[00:28:26] Speaker 00:
No, no, no.

[00:28:29] Speaker 00:
So they distinguished between synchronization using only timestamps with

[00:28:34] Speaker 00:
synchronization where you assign segments to one another.

[00:28:37] Speaker 00:
So for example, audio segment one is always going to be output with audio segment two.

[00:28:44] Speaker 00:
Sorry.

[00:28:46] Speaker 00:
Video segment one is always going to be output with audio segment one.

[00:28:51] Speaker 00:
Audio segment two is always going to be output with video segment two.

[00:28:55] Speaker 00:
So there's always going to be a pair of segments that are output with one another in the claims.

[00:29:02] Speaker 00:
In the prior art, there was no assignment rule.

[00:29:05] Speaker 00:
None.

[00:29:05] Speaker 00:
No assignment rule.

[00:29:06] Speaker 00:
They were only looking at the timing information and just matching, trying to match the timing information so that the whole data stream lined up.

[00:29:17] Speaker 00:
And that was the same concept that they distinguished in the Rossenau reference.

[00:29:23] Speaker 00:
In the Rossenau reference, there were... You mean about time lag?

[00:29:28] Speaker 00:
Yes.

[00:29:29] Speaker 00:
So you could have video frames of data

[00:29:31] Speaker 00:
that may over time lead or lag, right?

[00:29:35] Speaker 00:
So there's going to be some sort of shifting in the frames.

[00:29:39] Speaker 00:
And when that shifting happens, you just repeat or skip the frames.

[00:29:43] Speaker 00:
But again, there was no strict defined assignment of the segments to one another.

[00:29:49] Speaker 00:
Effectively, with this assignment rule, the data streams never get out of sync because you're always outputting the same video and audio data together.

[00:30:02] Speaker 00:
And so that is what the applicant was distinguishing from the prior art reference.

[00:30:07] Speaker 00:
Again, there was no strict assignment of two segments in the data streams in the prior art.

[00:30:16] Speaker 00:
If there are no further questions, Unified respectfully ask the court to affirm the board's decision.

[00:30:22] Speaker 02:
Thank you, Ms.

[00:30:26] Speaker 02:
Boogs.

[00:30:26] Speaker 02:
OK, Mr. Barron, will we store three minutes of rebuttal?

[00:30:33] Speaker 01:
Thank you, Your Honor.

[00:30:35] Speaker 01:
On the point we were just discussing about assignment rules, I'd encourage you to look at Shin's Figure 6B.

[00:30:41] Speaker 01:
It's in the blue brief at 13.

[00:30:44] Speaker 01:
What Shin is doing is it identifies fixed times, time stamps,

[00:30:50] Speaker 01:
Time a, B, C, and D, and those are times at which segments are supposed to be output.

[00:30:55] Speaker 01:
So in a just totally ordinary English sense, you could say that that's assigning segments to the time stamps, and then it uses the delta T to realign.

[00:31:06] Speaker 01:
those segments.

[00:31:07] Speaker 01:
And what I haven't heard from Unified and haven't seen in the briefs is any explanation of how that's any different from how Sonohara uses time.

[00:31:16] Speaker 01:
Sonohara, as the board found in its discussion of claims 20 to 21, has preset output times for the segments, just like times A, B, C, and D in Shin's figure 6B.

[00:31:30] Speaker 01:
So I think what we disclaimed is at the very least

[00:31:36] Speaker 01:
what Sonohara is doing.

[00:31:38] Speaker 01:
And whether you want to call that timestamps, whether you want to call that exact timing information, I think is really just a matter of semantics at this point.

[00:31:47] Speaker 01:
The prior art technique that we distinguished in essentially defining the term assignment rule that we were using for this patent, nobody's argued that that's a term that had some tactical meaning in the art.

[00:32:02] Speaker 01:
There is no meaningful difference between those prior art techniques and Zonahara.

[00:32:09] Speaker 01:
On the exsonics point briefly, we argued from our preliminary response at appendix 983 that there's express lexicography.

[00:32:20] Speaker 01:
Unified agrees with that.

[00:32:22] Speaker 01:
Unified's expert agrees that there's express lexicography.

[00:32:26] Speaker 01:
Unified's expert said he thinks that patent's definition matches the ordinary meaning and that he applied it at the petition stage and

[00:32:36] Speaker 01:
Unified said it was doing plain and ordinary meaning at the petition stage, which according to its expert is the patent's definition.

[00:32:42] Speaker 01:
So this is not a new construction.

[00:32:44] Speaker 01:
It's the same construction everybody's been applying all along.

[00:32:48] Speaker 01:
The preferred construction that we advanced, what the board called I think fairly an additional gloss on the definition,

[00:32:55] Speaker 01:
was, I think Unified did have a right to respond to that.

[00:32:59] Speaker 01:
But the problem is that Unified never said under any definition why the segments were content related.

[00:33:06] Speaker 01:
It describes, I believe, on appendix 119, I think the section runs from 118 to 123 or so, it describes why they're segments.

[00:33:15] Speaker 01:
It breaks out all the other claim terms and makes an argument for

[00:33:20] Speaker 01:
why they're satisfied.

[00:33:22] Speaker 01:
But there's nothing like, we think these are content-related cuts that's never filled in, and the board lacks the legal authority to allow Unified to fill it in for the first time in reply.

[00:33:38] Speaker 02:
Thank you, Your Honors.