[00:00:00] Speaker 01:
Our next case is WAG acquisition versus Walt Disney, Hulu, Netflix, Google, Amazon, et cetera.

[00:00:10] Speaker 01:
2024, 16, 27, 28, 31, 32, 33, and 34.

[00:00:17] Speaker 01:
Mr. Abramson, we're ready when you are.

[00:00:20] Speaker 03:
May it please the court.

[00:00:25] Speaker 03:
The appealed IPRs all concern the same patents and the same principal reference, Carmel.

[00:00:34] Speaker 03:
I will address three things.

[00:00:35] Speaker 02:
First, Mr. Abramson, multiple sections of your opening brief focus extensively on the testimony of Amazon's expert Dr. Jaffe.

[00:00:48] Speaker 02:
But Dr. Jaffe's testimony is not part of the record in the Disney IPRs.

[00:00:53] Speaker 03:
I'm sorry, not part of the record in what?

[00:00:56] Speaker 02:
In the Disney IPRs.

[00:00:57] Speaker 03:
That's correct, Your Honor.

[00:00:59] Speaker 02:
What in the record or the law authorizes your use of that testimony?

[00:01:04] Speaker 03:
Well, the three cases are being briefed together.

[00:01:07] Speaker 03:
Our expert testified to the same substance that Dr. Jaffay testified to.

[00:01:16] Speaker 03:
But no, Dr. Jaffay

[00:01:21] Speaker 03:
His testimony was not introduced in the in the in the the the IPR has occurred in sequence and all the events on Jaffé occurred after we had done the briefing on the on the Disney case.

[00:01:36] Speaker 03:
It's not in it's not in that record.

[00:01:37] Speaker 03:
You're correct.

[00:01:39] Speaker 02:
And what in the law then authorizes you to use it?

[00:01:43] Speaker 03:
We're briefing all three cases, you know.

[00:01:48] Speaker 05:
I suppose your references to Dr. Trefet's testimony are directed to the Amazon IPR appeals, right?

[00:01:56] Speaker 03:
The Amazon IPR and the Disney, it is in the record.

[00:01:58] Speaker 03:
It's still relevant to your Disney IPR appeal?

[00:02:01] Speaker 03:
Absolutely.

[00:02:02] Speaker 03:
It's in the record.

[00:02:04] Speaker 05:
Which record?

[00:02:05] Speaker 03:
And we argued it.

[00:02:05] Speaker 03:
The Disney record?

[00:02:07] Speaker 03:
It's not the Disney record, it's in the Google record.

[00:02:10] Speaker 05:
Right.

[00:02:12] Speaker 05:
So for your Disney IPR appeal, you're constrained to the record in that Disney IPR appeal.

[00:02:21] Speaker 03:
Yes.

[00:02:22] Speaker 03:
And in the record, we have the testimony of our expert, Mr. Horty, to the same effect as Jeffay.

[00:02:29] Speaker 02:
You didn't cite to him.

[00:02:31] Speaker 02:
You cited to Jeff or Jeffay.

[00:02:34] Speaker 03:
Sorry?

[00:02:34] Speaker 02:
Is it Jeffay?

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

[00:02:36] Speaker 02:
You cited to Jeffay.

[00:02:39] Speaker 03:
Well, Jaffé is not in the record.

[00:02:41] Speaker 03:
I agree with you.

[00:02:42] Speaker 03:
It's not in the record in the Disney IPR.

[00:02:43] Speaker 02:
OK.

[00:02:44] Speaker 02:
So we can cut out everything from your brief where you cited Jaffé.

[00:02:49] Speaker 03:
Well, we were instructed to present one brief on all these cases.

[00:02:55] Speaker 02:
So we can cut out everything from your brief relating to Disney where you cited Jaffé.

[00:03:02] Speaker 02:
Is that correct?

[00:03:03] Speaker 02:
Yes, you can.

[00:03:04] Speaker 02:
OK.

[00:03:05] Speaker 02:
In your opening brief,

[00:03:07] Speaker 02:
You hint at an APA challenge by arguing that the inconsistencies among the final written decisions under appeal reflect arbitrary and capricious agency action.

[00:03:20] Speaker 02:
But then there's nothing else.

[00:03:23] Speaker 02:
Are you raising an APA challenge?

[00:03:28] Speaker 03:
I think you could take it that way, Your Honor.

[00:03:31] Speaker 03:
If I take it that way.

[00:03:34] Speaker 02:
What authority or points do you make?

[00:03:39] Speaker 03:
The point is that we have three cases all involving the same panel, the same patent.

[00:03:45] Speaker 03:
Points and authorities are a thing.

[00:03:47] Speaker 03:
Right.

[00:03:49] Speaker 03:
Understand understood Understood, but let me addressing this if you want to look at these, you know Cabin them off and look at these three cases looking at the Disney case, right?

[00:03:58] Speaker 03:
There is no not a question of substantial evidence.

[00:04:01] Speaker 03:
There is no record.

[00:04:03] Speaker 03:
There's no evidence in the record of any HTTP get requests for for for elements and that's true whether you base that on Horty's testimony or on a combination of Horty's testimony is testimony

[00:04:17] Speaker 02:
In your special purpose hardware argument section, you make a single citation to a final written decision in the Disney IPRs before raising Carmel's figure eight.

[00:04:34] Speaker 02:
That's in the blue brief at 47 to 49.

[00:04:39] Speaker 02:
Was Carmel's figure eight ever raised in the Disney IPRs?

[00:04:43] Speaker 02:
And if so, where is it in the record?

[00:04:50] Speaker 03:
I'm sorry, Your Honor.

[00:04:51] Speaker 03:
The brief that you're referring to is our opening brief?

[00:04:54] Speaker 02:
Yes.

[00:04:55] Speaker 02:
Blue brief 47-49, 2-49, through 49.

[00:05:11] Speaker 01:
Well, why don't you come back and move on to the merits?

[00:05:15] Speaker 01:
Pardon me?

[00:05:16] Speaker 01:
Please move on on the merits.

[00:05:18] Speaker 01:
You can come back on rebuttal with that answer.

[00:05:20] Speaker 05:
Yes, it's very challenging.

[00:05:21] Speaker 05:
Let's start with the Disney.

[00:05:23] Speaker 05:
Let's start with Disney.

[00:05:27] Speaker 05:
Let's assume for the moment, after reviewing the board's decision, I'm inclined to think there is substantial evidence to support their fact finding that

[00:05:39] Speaker 05:
that Carmel teaches limitation 1K.

[00:05:43] Speaker 05:
And then there's multiple different theories the board relied on.

[00:05:47] Speaker 05:
One is the so-called alternating links theory.

[00:05:49] Speaker 05:
You know, downloading alternating links requires separate requests.

[00:05:56] Speaker 05:
each link then there's the continuous loop theory you look at the loop you're always you know you're going to be selecting individual slices as you keep going through the loop and then finally and separately there's the HTTP get request theory so there's there's three mountains you have to climb why is there not substantial evidence that would just end

[00:06:18] Speaker 03:
Well, to begin with, there's no evidence, let alone substantial evidence of any HTTP GET requests in this entire patent.

[00:06:30] Speaker 03:
It's not mentioned from beginning to end.

[00:06:32] Speaker 02:
Is there evidence in expert testimony?

[00:06:36] Speaker 03:
There is not.

[00:06:38] Speaker 05:
So do you dispute that when you use HTTP, there's something called an HTTP GET request?

[00:06:46] Speaker 03:
Absolutely, there is HTTP GET request.

[00:06:49] Speaker 03:
But the limitation was receiving requests for a stream.

[00:06:58] Speaker 03:
um, for a stream of data.

[00:07:01] Speaker 03:
And if you look at Dr. Howe, who's their expert, he took that, took that at face value.

[00:07:07] Speaker 03:
And he said that looking at figure 6A of, uh, of Carmel, he didn't say, he didn't point to anything that actually said, here's a request, here's another request, here's another request to get this data.

[00:07:22] Speaker 03:
Did not point to that.

[00:07:24] Speaker 03:
He said it was necessarily the case.

[00:07:27] Speaker 03:
because HTTP has to work that way.

[00:07:31] Speaker 03:
That was an inherency theory.

[00:07:33] Speaker 03:
If you look at paragraph 128 of his declaration, it was totally an inherency theory on Disney's point as to that limitation.

[00:07:43] Speaker 05:
What about the other two theories?

[00:07:46] Speaker 05:
The loop theory and the alternating links theory.

[00:07:49] Speaker 03:
Again, if you look at his declaration,

[00:07:55] Speaker 03:
He only said this necessarily implicates, take figure 6A, which he pointed to, that's the loop.

[00:08:04] Speaker 03:
He said it has to be HTTP gets.

[00:08:10] Speaker 03:
He said that.

[00:08:10] Speaker 03:
That was the basis of his opinion.

[00:08:13] Speaker 03:
When we took his deposition, he couldn't say that he had actually looked at the governing version of the HTTP standard, which was HTTP 1.1.

[00:08:24] Speaker 03:
He came in there and was testifying as to old HTTP1.

[00:08:29] Speaker 05:
What we have here is that this is a very fact-intensive case.

[00:08:33] Speaker 05:
And you've already been in front of the fact-finding tribunal that made a call.

[00:08:38] Speaker 05:
And it's difficult for us as an appellate court to proclaim that

[00:08:45] Speaker 05:
what the board found was unreasonable in light of all the competing evidence in the record.

[00:08:51] Speaker 03:
I'm well aware of that, Judge Chen.

[00:08:53] Speaker 03:
And I've had this discussion before, in fact, with your honor.

[00:08:58] Speaker 03:
Oh, goodness.

[00:08:58] Speaker 03:
And writing these briefs, I was completely aware of that.

[00:09:01] Speaker 03:
But substantial evidence requires evidence.

[00:09:04] Speaker 03:
There's no evidence here.

[00:09:06] Speaker 03:
There's no evidence of an HTTP request.

[00:09:09] Speaker 03:
The only evidence is an expert saying it has to be this way.

[00:09:14] Speaker 03:
And the only evidence on the record that addresses that is our expert that says it doesn't have to be this way because there's another way of doing it.

[00:09:25] Speaker 03:
And nobody contradicted that.

[00:09:27] Speaker 03:
There's another way of streaming with HTTP under the 1.1 standards that's cited in Carmel.

[00:09:35] Speaker 03:
If there is another way to do it, it can't be inherent that the way that Dr. Howe said it is the only way to do it.

[00:09:44] Speaker 02:
How do you deal with all the board's findings of waiver below in the Disney IPR?

[00:09:52] Speaker 02:
Pardon me?

[00:09:52] Speaker 02:
How do you deal with all the findings of waiver?

[00:09:56] Speaker 02:
And there were a lot of them.

[00:10:00] Speaker 03:
I'm not sure which findings you're referring to.

[00:10:06] Speaker 02:
You've read the IPR.

[00:10:08] Speaker 03:
Yes, indeed, Your Honor.

[00:10:10] Speaker 02:
The board repeatedly says you waived arguments.

[00:10:14] Speaker 03:
Well, she'd have to help me with which arguments you're referring to.

[00:10:23] Speaker 05:
Is it fair to say that your Disney IPR appeal is just about limitation 1K?

[00:10:32] Speaker 05:
It was a little hard to parse.

[00:10:36] Speaker 05:
Yes, it's not about claim construction.

[00:10:39] Speaker 05:
Limitation 1K and whether substantial evidence supports the board's fact finding that Carmel discloses limitation 1K.

[00:10:47] Speaker 05:
Is that the sum in substance?

[00:10:49] Speaker 03:
It's certainly central to Disney appeal.

[00:10:51] Speaker 05:
Is there something else?

[00:10:53] Speaker 05:
Because right now, that's the only thing I understand your Disney appeal to be about.

[00:11:02] Speaker 05:
Yeah.

[00:11:04] Speaker 05:
About the Amazon appeal.

[00:11:06] Speaker 05:
Is it also about just whether substantial evidence supports the board's fact finding that Carmel discloses limitation 1K?

[00:11:15] Speaker 05:
Is there something else in the Amazon appeal?

[00:11:17] Speaker 03:
Oh, yes.

[00:11:17] Speaker 03:
There's something else, which is the argument that they raise

[00:11:23] Speaker 03:
on appeal, which is just the argument that streaming a video, for instance, would have been obvious over the ability to get an individual image by HTTP 1.0, which the board in Disney actually raised.

[00:11:41] Speaker 05:
What limitation is that in regards to?

[00:11:43] Speaker 05:
Pardon me?

[00:11:44] Speaker 05:
This argument that you're saying that's part of your Amazon appeal, which claim limitation is that in regards to?

[00:11:51] Speaker 03:
The request limitations.

[00:11:53] Speaker 03:
Limitation 1K?

[00:11:54] Speaker 03:
It's not 1K, actually.

[00:11:56] Speaker 03:
It's 1J and 1K.

[00:11:59] Speaker 03:
It's both 1J and 1K.

[00:12:01] Speaker 03:
And it's that the patent requires

[00:12:08] Speaker 03:
individual requests for successive elements, right?

[00:12:12] Speaker 03:
That 1J says that the server cannot maintain state, which the claim is trying to narrow in on a pure pull.

[00:12:21] Speaker 05:
Without making the repeated requests?

[00:12:23] Speaker 03:
Making repeated requests.

[00:12:24] Speaker 03:
1J says it can't maintain state, and 1K says it can't send anything unless it was specifically requested.

[00:12:31] Speaker 01:
Counsel, you're into your rebuttal, Tom.

[00:12:34] Speaker 01:
You can save it or use it.

[00:12:36] Speaker 03:
I will reserve the rest of my time.

[00:12:39] Speaker 01:
All right.

[00:12:39] Speaker 01:
Mr. Haddon.

[00:12:47] Speaker 00:
Thank you.

[00:12:47] Speaker 00:
Good morning, Your Honors.

[00:12:48] Speaker 00:
May it please the court?

[00:12:50] Speaker 00:
Stanley Panikowski, arguing on behalf of Appellee's Disney.

[00:12:53] Speaker 01:
All right.

[00:12:54] Speaker 01:
My apologies.

[00:12:55] Speaker 00:
No worries, Your Honor.

[00:12:56] Speaker 00:
I'm arguing on behalf of appellees Disney, Hulu, and Netflix.

[00:13:01] Speaker 00:
And Mr. Haddam will argue on behalf of the Amazon appellees.

[00:13:05] Speaker 00:
And I understand, Your Honors, that I am responsible for monitoring the allocation of our time.

[00:13:11] Speaker 00:
Your Honors, substantial evidence supports the board's final written decisions in the Disney IPRs.

[00:13:18] Speaker 00:
As counsel acknowledged and as the briefing shows, the issues on appeal relate only to limitation 1K.

[00:13:26] Speaker 00:
And for limitation 1K, the board relied on four principal sources of evidence.

[00:13:33] Speaker 00:
Individually and together, these sources provide more than substantial evidence to support the board's decision under multiple independent obviousness theories that Disney's expert Dr. Ho articulated.

[00:13:47] Speaker 00:
First, Your Honors, the board relied on Carmel's disclosures themselves, and in particular the separate files embodiment that is reflected in figures 3A and 6A at pages 93-39 and 93-43 of the record, and the text accompanying those figures in the specification.

[00:14:05] Speaker 00:
especially column 10, lines 24 to 63 at page 9352 of the appendix, which describes the operation of the flow chart in figure 6a, as well as appendix page 9348, column 2, lines 22 to 23, which explains that in Carmel, preferably,

[00:14:28] Speaker 00:
Each slice is contained in its own separate respective file.

[00:14:35] Speaker 00:
And Dr. Ho relied on that disclosure in his testimony about HTTP GET requests, which begins at page 6910 of the Joint Appendix in his initial declaration, carries through his reply declaration at pages 131 to 35, and also in his deposition testimony.

[00:14:56] Speaker 00:
at pages 10420 to 40 of the Joint Appendix.

[00:15:01] Speaker 00:
And in that testimony, Your Honors, Dr. Ho explained how a skilled artisan would understand Carmel's disclosures in light of the preference to put each slice into its own separate respective file in light of the HTTP standard, which both parties' experts agreed involves GET requests.

[00:15:25] Speaker 00:
And in fact, Your Honor,

[00:15:26] Speaker 05:
What's it in Figure 6A that is the clue that tells us that it's necessarily a pull system and not a push system?

[00:15:36] Speaker 05:
Why couldn't what's happening in that loop be illustrating a push system?

[00:15:44] Speaker 00:
Your Honor, what's happening in that loop would not describe what either party's experts would characterize as a push system for several reasons.

[00:15:54] Speaker 00:
First, you have the read index file step happening after the HTTP from server step.

[00:16:02] Speaker 00:
And as column 10 at pages 93, 52 explain, the reason why the client will read the index file is in order to determine what is the most recent slice that has been uploaded by the transmitting computer 34 to the server 36.

[00:16:19] Speaker 00:
And then the next clue, your honor, is after reading the index file,

[00:16:24] Speaker 00:
Client will select the appropriate starting slice and in 6a.

[00:16:28] Speaker 00:
It's even more general It simply says select slice and there would be no reason for the client to be selecting a slice if everything had already been sent from the server on the server's own initiative and then finally your honor

[00:16:43] Speaker 00:
On the same page 9352, column 10, at lines 45 to 48, Carmel explains that after selecting an appropriate starting slice, the client, quote, begins to download and decode, parentheses, decompress.

[00:16:59] Speaker 00:
files 42, 44, 46, etc.

[00:17:03] Speaker 00:
And so there would be no reason for the client to be downloading those files if, as WAG contends, they had already been sent from the server in an earlier step in that process.

[00:17:15] Speaker 00:
And the board, your honor, relied on all of that evidence, which is in Dr. Ho's testimony, to support one of multiple independent theories, why there is obviousness here.

[00:17:27] Speaker 00:
And even under what the board called the express teaching of Carmel Rubrik, the reliance on the Figure 6A flow chart was only one of multiple theories.

[00:17:37] Speaker 00:
There's also the successive alternation theory.

[00:17:39] Speaker 05:
Is Figure 6B a push system or a pull system?

[00:17:43] Speaker 00:
Your Honor, under the definition that Disney's expert Dr. Ho gave of a pull system versus a push system, and that's at page 6841 of the joint appendix, figure 6B would represent a pull system because that is where the client is still initiating the request.

[00:18:06] Speaker 05:
In 6B, the client is making multiple requests for

[00:18:12] Speaker 05:
new slices during the playback?

[00:18:15] Speaker 00:
Your honor, that was Dr. Ho's opinion, which was expressed.

[00:18:19] Speaker 00:
At Figure 6B.

[00:18:20] Speaker 00:
At Figure 6B at page 6809.

[00:18:22] Speaker 00:
However, your honors, Figure 6B is not relevant to this appeal.

[00:18:27] Speaker 00:
The board actually took a somewhat different view of Figure 6B than Disney's expert did, but the board specifically said at appendix page 221 that Disney is not relying

[00:18:41] Speaker 00:
on figure 6B what the board called the single file embodiment in support of its inherent disclosure theory or what the board called what an ordinarily skilled artisan would understand based on Carmel's disclosures.

[00:18:56] Speaker 00:
And then in the express teaching section of the board's final written decision at appendix pages 211 to 215, the board itself did not rely on figure 6B at all.

[00:19:09] Speaker 00:
And therefore, Figure 6B is irrelevant to the Board's decision and irrelevant to the appeal.

[00:19:16] Speaker 00:
And any differences among different parties' views or the Board's view of Figure 6B are irrelevant to the fact that substantial evidence supports the Board's decision.

[00:19:28] Speaker 00:
Your Honor, the other pieces of substantial evidence that support the board's decision under these multiple theories include the declarations and deposition testimony of Disney's expert Dr. Ho, which we've discussed with respect to some theories.

[00:19:43] Speaker 00:
And in particular, with the successive alternation theory, that was discussed at length, not only in the declarations of Dr. Ho, but also in his deposition testimony.

[00:19:54] Speaker 00:
And the board specifically relied on that deposition testimony at appendix pages 214 to 215 to credit Dr. Ho's theory that when you look at Carmel's disclosures of successive alternation in light of the HTTP standard,

[00:20:11] Speaker 00:
A person of ordinary skill in the ARC would understand that what Carmel is teaching is that the client sends a request over one link and then the server sends one file in response to that request over that link.

[00:20:24] Speaker 00:
And then the second link that the client has opened, the server will only send a file over that link in response to a request by the client after the client has opened that particular link.

[00:20:37] Speaker 00:
There are also admissions in the declarations and deposition testimony of WAGS expert Mr. Horty, particularly at appendix pages 99, 81 to 82, where he admits that servers do not send data that they are not specifically requested to send.

[00:20:52] Speaker 00:
And because that's the only element that limitation 1K adds over limitation 1F,

[00:20:58] Speaker 00:
where WAG did not contest at the board level that Carmel discloses limitation 1F.

[00:21:05] Speaker 00:
That admission alone would be dispositive on limitation 1K in addition to all these other independent grounds.

[00:21:12] Speaker 00:
And unless there are further questions, Your Honors, we ask that you affirm the board's final written decisions in the Disney IPRs.

[00:21:18] Speaker 00:
And I will now yield to Mr. Haddon.

[00:21:21] Speaker 01:
Thank you, Mr. Panachowski.

[00:21:23] Speaker 00:
Thank you.

[00:21:27] Speaker 01:
Mr. Haddon.

[00:21:30] Speaker 04:
May I please the court?

[00:21:31] Speaker 04:
The two issues in the Amazon appeal both relate to the substantial evidence standard.

[00:21:39] Speaker 04:
The first one is the one that we have been discussing, whether Carmel's separate file embodiment would teach a person of ordinary skill in the art that there would be separate requests for each file.

[00:21:53] Speaker 04:
There's really no dispute about this.

[00:21:56] Speaker 04:
All three experts agree that the way HTTP works, it's a request response protocol, and you're not going to receive a file that is not requested.

[00:22:08] Speaker 04:
Dr. Ho, opined on this, Dr. Jaffay, and Mr. Horty, WAGS expert as well.

[00:22:15] Speaker 05:
Is it undisputed that Figure 6A is a separate file embodiment?

[00:22:19] Speaker 04:
Figure 6A is explicitly described in the specification as relating to the separate file embodiment.

[00:22:27] Speaker 04:
Yes, Your Honor.

[00:22:29] Speaker 04:
The notion that Wags Council talked about that somehow this changes in HTTP 1.1 is not accurate.

[00:22:39] Speaker 04:
So 1.1 has this chunk transfer coding which allows a large file to be returned from the server in separate pieces.

[00:22:50] Speaker 04:
But all of the experts, again, Mr. Horty included, agree that you're still only going to get the file you requested.

[00:22:59] Speaker 04:
So in fact, in Carmel, the 1.1

[00:23:04] Speaker 04:
chunk transfer encoding is only referenced with respect to the single file embodiment.

[00:23:10] Speaker 04:
We have a large file that can be sent back in multiple chunks.

[00:23:14] Speaker 04:
The separate file embodiment doesn't reference 1.1 at all, and all of the experts agree that it would have to operate by receiving separate requests.

[00:23:25] Speaker 04:
The only other argument that WAG makes is the data producing process suggestion, that instead of having a file at the server, you could have some script that would generate data on the fly.

[00:23:40] Speaker 04:
But that's not at all what Carmel describes.

[00:23:44] Speaker 04:
Carmel describes that these slices are stored as separate static files that are returned to the client.

[00:23:52] Speaker 04:
So there's really no dispute, and there's more than substantial evidence to support the board's finding that the separate file embodiment in Carmel would teach one of ordinary skill in the art, element 1k, of requesting separate files.

[00:24:08] Speaker 04:
The other issue that's unique to the Amazon appeal is the combination with the FIG reference.

[00:24:16] Speaker 04:
And the only dispute, there's no dispute from WAG that FIG, in conjunction with Carmel, discloses all the claim limitations or renders them obvious.

[00:24:26] Speaker 04:
The only dispute is whether there was sufficient evidence or substantial evidence of a motivation to combine.

[00:24:34] Speaker 04:
And there clearly is.

[00:24:36] Speaker 04:
Both FIG and Carmel are describing a system in which sequential segments of video are stored as separate files on the server and are provided to the client over HTTP.

[00:24:51] Speaker 04:
Now, admittedly, Carmel.

[00:24:54] Speaker 05:
Is the reliance on FIG for limitation 1K or for something else?

[00:25:02] Speaker 04:
It's for 1K in addition, Your Honor.

[00:25:04] Speaker 04:
In addition to what?

[00:25:06] Speaker 04:
To Carmel.

[00:25:07] Speaker 04:
OK, in addition to Carmel.

[00:25:08] Speaker 04:
Yeah.

[00:25:08] Speaker 05:
But you didn't rely on FIG for other limitations beyond limitation.

[00:25:14] Speaker 04:
We confirmed that FIG included, along with Carmel, other elements like 1F.

[00:25:22] Speaker 04:
But again, the only issue here today is 1K.

[00:25:27] Speaker 04:
And specifically, as an alternative to Carmel alone.

[00:25:31] Speaker 05:
And just for my understanding of the board's decision,

[00:25:35] Speaker 05:
was the motivation to combine Carmel and Peig premised on both of the references being pull systems.

[00:25:44] Speaker 05:
It is.

[00:25:44] Speaker 05:
And then if so, then you have to still establish that Carmel is, in fact, a pull system.

[00:25:53] Speaker 04:
I agree, Your Honor.

[00:25:54] Speaker 04:
I would phrase it slightly differently, but I think that's the point.

[00:25:58] Speaker 04:
And so given the

[00:26:02] Speaker 04:
that there is substantial evidence supporting that Carmel requires separate requests for files.

[00:26:09] Speaker 04:
There has been no reason that you would not combine it with FIG, if that makes sense, Your Honor.

[00:26:17] Speaker 04:
And the further reason or motivation to make that combination is that because

[00:26:23] Speaker 04:
FIG provides the specific details about how to implement those separate requests that are admittedly lacking in Carmel.

[00:26:33] Speaker 04:
Carmel describes it at a higher level.

[00:26:36] Speaker 04:
But FIG specifically includes this sequence of URLs

[00:26:41] Speaker 04:
It can be grouped into segments and that are automatically requested by the client when the buffer needs more data to stream.

[00:26:50] Speaker 04:
And it will alternate buffers so that it will receive on one buffer, play out from buffer.

[00:26:56] Speaker 04:
All of those are useful details for implementing the separate file embodiment in Carmel.

[00:27:03] Speaker 05:
Was your theory for Carmel that Carmel teaches making these repeated requests

[00:27:12] Speaker 05:
based just on the fact that Carmel discloses HTTP, and people, skilled artisans would know HTTP have HTTP get requests?

[00:27:24] Speaker 04:
It's two things.

[00:27:25] Speaker 04:
It's HTTP plus the separate files.

[00:27:29] Speaker 04:
So I think those together, a person with ordinary skill would know that you need to request those files separately in HTTP, whether it's HTTP 1.0 or 1.1.

[00:27:43] Speaker 04:
If there are no further questions, I will sit down.

[00:27:46] Speaker 01:
Thank you, counsel.

[00:27:48] Speaker 01:
Thank you.

[00:27:49] Speaker 01:
Mr. Abramson has some rebuttal time.

[00:28:04] Speaker 03:
Yes.

[00:28:04] Speaker 03:
Yeah, I want to address one thing that Mr. Panikowski said.

[00:28:08] Speaker 02:
Mr. Abramson, before you do,

[00:28:10] Speaker 02:
Let me clarify something for you.

[00:28:11] Speaker 02:
When I said waiver, what I meant was repeatedly the board says Pat Nohner makes no argument specific to limitation 1B, 1C, 1D, and so on.

[00:28:24] Speaker 03:
Oh.

[00:28:25] Speaker 02:
You agree that that's effectively waived?

[00:28:28] Speaker 03:
I agree.

[00:28:28] Speaker 03:
I've asked whether that's the question.

[00:28:30] Speaker 03:
I definitely agree.

[00:28:32] Speaker 03:
They're clear on that, not disputing that.

[00:28:35] Speaker 03:
Mr. Panachowski was referencing

[00:28:40] Speaker 03:
difference between figures 6A and 6B.

[00:28:44] Speaker 03:
And Disney doesn't want us to talk about 6B.

[00:28:48] Speaker 03:
But if you look at their petition, the petition sets out 6A and 6B as just different embodiments representing the same poll, pure poll process.

[00:29:02] Speaker 03:
That was the premise of the petition.

[00:29:04] Speaker 02:
How do you deal with the board stating, specifically stating, petitioner

[00:29:10] Speaker 02:
does not rely on the 3D6B single file embodiment when asserting that Carmel inherently teaches 1K.

[00:29:19] Speaker 03:
It backed away from it during argument, but the petition came in full bore on 6B as well as 6A, making no distinction.

[00:29:28] Speaker 03:
Dr. Howe didn't make a distinction in his declaration.

[00:29:34] Speaker 03:
How do we deal with that specific finding?

[00:29:37] Speaker 03:
Well, it's because it's pretty clear now that nobody wants to come in and tell this court that 6B represents a poll.

[00:29:48] Speaker 03:
Amazon certainly does, and Amazon dropped both 6A and 6B.

[00:29:54] Speaker 03:
There's a statement in their brief where they're not relying on that.

[00:30:00] Speaker 03:
But why would there be a difference between 6A and 6B?

[00:30:03] Speaker 03:
Carmel doesn't suggest anywhere that there's a difference.

[00:30:08] Speaker 03:
There's a whole patent written on this thing, and they give two embodiments.

[00:30:12] Speaker 03:
One is they put the encoding in one file.

[00:30:17] Speaker 03:
They put one encoding, a single level of encoding.

[00:30:19] Speaker 05:
Your expert tried to make this distinction between 6A and 6B?

[00:30:23] Speaker 03:
My expert said that neither one of them said they were both.

[00:30:27] Speaker 03:
My expert said they were both.

[00:30:29] Speaker 03:
pushes, right?

[00:30:32] Speaker 03:
Carmel doesn't make any distinction between the two.

[00:30:35] Speaker 03:
It's just a question of whether you put the encodings in one file or not.

[00:30:40] Speaker 03:
They interleave them.

[00:30:41] Speaker 03:
They multiplex them in the 6b embodiment.

[00:30:46] Speaker 03:
And Dr. Ho's opening declaration treated that the same as 6a.

[00:30:51] Speaker 03:
So the whole thing is morphed.

[00:30:54] Speaker 03:
And there's something about it where an expert comes in and makes conclusory statements without pointing to specific requests, and says that this figure stands for multiple requests.

[00:31:07] Speaker 03:
And if you look at Figure 6A.

[00:31:08] Speaker 01:
Well, as you can see, your time has expired.

[00:31:12] Speaker 01:
Thank you, Your Honor.

[00:31:13] Speaker 01:
We'll consult from here.