[00:00:01] Speaker 02:
We have before us today five different cases.

[00:00:03] Speaker 02:
Four cases are being argued, and one case has been submitted on the briefs.

[00:00:09] Speaker 02:
We consolidated the four cases of argument this morning, given their common issues.

[00:00:15] Speaker 02:
And let me make sure I have this right.

[00:00:17] Speaker 02:
And that's that appellant petitioner has 20 minutes in their direct and ten rebuttal.

[00:00:25] Speaker 02:
Is that correct?

[00:00:25] Speaker 05:
That's correct, Your Honor.

[00:00:27] Speaker 02:
And then on the other side, same thing.

[00:00:28] Speaker 02:
We've got 20-10.

[00:00:31] Speaker 02:
Five minutes, we've allotted to the government.

[00:00:34] Speaker 02:
Is that correct?

[00:00:35] Speaker 00:
That's correct, Your Honor.

[00:00:37] Speaker 02:
Okay, well then, let's get going here.

[00:00:38] Speaker 02:
Mr. Conrad, you may proceed.

[00:00:41] Speaker 05:
Good morning.

[00:00:46] Speaker 05:
May it please the Court?

[00:00:47] Speaker 05:
My name is David Conrad.

[00:00:48] Speaker 05:
I'm representing the Appellant Group.

[00:00:51] Speaker 05:
I'm going to focus my arguments today on two legal errors by the Board.

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The first issue is the written description issue.

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for the 516 patent where the board found that there was, or the parties agreed that the claim constructions for two terms, endorsement tag and token, was an executable link.

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The board found that there is no question that there is an executable link that's described in the original specification.

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The second issue I'm going to speak about today is the issue of Paul in anticipation.

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There the board found that there is no expressed disclosure in Paul of the claimed invention

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And it didn't find that the claim to invention was either inherent in Paul.

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And therefore, there's no anticipation.

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But yet, the board found anticipation anyways.

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I'm going to turn first to the issue of written description.

[00:01:39] Speaker 04:
Conrad, on that, what was the dialogue, if you will, before the board on that?

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Because the cases seem to make it fairly clear that in a written description situation, you start out with claim construction.

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And then the question is,

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the claim is properly construed, does the record show that the inventor was in possession of what is the construed claim?

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And we have this definition of token and endorsement tag.

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Was there discussion of claim construction between the board and the parties at the

[00:02:23] Speaker 05:
Because the board didn't do any claim construction.

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I think you hit the key point, Your Honor, that the board did not do claim construction on this issue.

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The parties urged them to, urged the board to?

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We did in the petition, or the petitioner did in their petition, Your Honor, they argued it was an executable link.

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In our response, we argued the claim construction was an executable link.

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The board itself seemed to skip over that issue, seemed to jump right into the specification and do this backwards.

[00:02:51] Speaker 05:
They looked at the written description first,

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And it's a little unclear, but they seem to want to jump from there and see if someone would divine in the abstract the term tag or token.

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So there was no discussion at the oral argument before the board as to the proper claim construction.

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In other words, as to the party saying to the board, please adopt this construction.

[00:03:17] Speaker 05:
I think the board didn't ask those questions, Your Honor.

[00:03:19] Speaker 05:
The parties agree on it.

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There's no dispute on what the claim construction should be.

[00:03:22] Speaker 05:
But the board didn't seem to inquire about that issue.

[00:03:25] Speaker 05:
I think you hit on what may be the fundamental problem with the error in the board.

[00:03:29] Speaker 04:
So it's your position that we can take the construction that was proposed, now there may be some question from the side on this, that was proposed at the board, namely what endorsement tag and token mean and executable link, right?

[00:03:46] Speaker 05:
Yes.

[00:03:47] Speaker 05:
Yes.

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When you adopt the board's, the party's constructions, your honor,

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The board already made the finding.

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They said that there's no question that the written description supports endorsement tag and token if there were a construction of executable link.

[00:04:04] Speaker 03:
Sorry, you're saying that the board expressly said if it claimed construction purposes?

[00:04:11] Speaker 03:
No, Your Honor.

[00:04:12] Speaker 03:
Endorsement tag and token mean hyperlink or executable link?

[00:04:17] Speaker 05:
They weren't explicitly clear.

[00:04:20] Speaker 03:
Did you use a construction like that for purposes of the 102 with Paul?

[00:04:25] Speaker 03:
But certainly with respect to the written description, they didn't go nearly as far as maybe what you were suggesting.

[00:04:31] Speaker 05:
Well, here's one thing they did say, Judge Chen.

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The board said, if the specification set forth the definition that tag meant an executable link such as a hyperlink, the written description requirement clearly would have been met.

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They said that on appellate page 37.

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Now what the board seemed to be saying there was the applicant had a requirement, if they were going to use a word that's not in the written description, the applicant had an requirement to expressly set forth a definition of that term.

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And here they said, had that expressed definition been set forth, the written description requirement would have clearly been met.

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That itself is another error that the board seemed to use.

[00:05:13] Speaker 03:
I'm curious.

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Did your side come up with these terms, endorsement tag and token?

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They're clearly nowhere in the written description.

[00:05:21] Speaker 03:
So why did you, midstream during prosecution, insert those otherwise unknown terms into the claims?

[00:05:31] Speaker 05:
That's a fair question, Your Honor.

[00:05:33] Speaker 03:
I don't think we can divine any subjective intent.

[00:05:35] Speaker 03:
Well, it's your side, right?

[00:05:36] Speaker 03:
Your client wrote these claims.

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Why did your client write those claims the way they wrote those claims?

[00:05:43] Speaker 05:
Yes, Your Honor.

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One thing that I can offer as a possible explanation is the original application was filed with one prosecuting attorney and then midstream the applicant switched to a different prosecuting attorney in a different firm.

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And that's when the claims were amended.

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And the only thing I can suggest is maybe it's a different style of prosecution and a different style of how an attorney operates.

[00:06:09] Speaker 05:
It's clear when you look at the claims, though,

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and how those two terms are used in the claims, what they do.

[00:06:15] Speaker 05:
In both cases, the user can execute them or interact with them in order to see the question.

[00:06:20] Speaker 03:
Did the amendments to the claims occur before or after the CIP was filed?

[00:06:24] Speaker 03:
I'm sorry, Your Honor?

[00:06:25] Speaker 03:
There was a continuation in part application filed from the original application, right?

[00:06:33] Speaker 03:
And then the CIP had more explanation about endorsement tag and token.

[00:06:39] Speaker 05:
I'm not sure of the exact timing of the CIP, Your Honor.

[00:06:43] Speaker 05:
It is true there was a CIP filed during the dependency, and that was filed by the new prosecuting attorney.

[00:06:49] Speaker 05:
And it did add some additional embodiments, but the detail is not additional description of a link.

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It was more description about how this link was created, such as hashing, more technical details about a particular embodiment.

[00:07:06] Speaker 05:
The original disclosure itself

[00:07:08] Speaker 05:
describes a link, and even the board agreed that that concept, as it's claimed in the 516 patent, is supported.

[00:07:18] Speaker 02:
So in the arguments that you made concerning 102 and 103, you did argue a certain construction, correct?

[00:07:26] Speaker 02:
Yes, Your Honor.

[00:07:28] Speaker 02:
And why shouldn't you be held to that construction with respect to 112?

[00:07:33] Speaker 05:
You mean before the board, the arguments were 102 and 103?

[00:07:37] Speaker 05:
Well, Blue Calypso argued that the construction for those terms is an executable link such as the hyperlink.

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And that's in agreement with the petitioner's proposal as well.

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So we didn't feel the need for those one, two, one, two, three issues before the board to argue the executable link as the key issue on novelty.

[00:08:00] Speaker 05:
So that didn't really come up too much, but the fact remains

[00:08:04] Speaker 05:
both parties agreed, we agreed with petitioner on what the proper construction should be.

[00:08:09] Speaker 04:
One question, can we decide the case in your view Mr. Connor based upon what you say is the agreed upon construction or is there any necessity for us to send it back to the board for the board to make a formal claim construction determination?

[00:08:34] Speaker 04:
There's no need to send this back to the board.

[00:08:36] Speaker 04:
To a degree, the board hasn't said, here's the correct construction.

[00:08:39] Speaker 05:
Well, the board did implicitly accept this construction.

[00:08:44] Speaker 05:
It did analyze other issues in the petition.

[00:08:48] Speaker 05:
It analyzed 102 and 103 in front of the Paul reference, for example.

[00:08:52] Speaker 05:
And in that analysis, the board necessarily already concluded that it must be an executable link because it made findings that Paul disclosed a hyperlink.

[00:09:01] Speaker 05:
And that was the basis for finding anticipation

[00:09:04] Speaker 05:
on some of these elements within Paul.

[00:09:06] Speaker 05:
So the board's already done this.

[00:09:08] Speaker 05:
The board's already agreed with the parties and looked at the patent this way, and the board didn't seem to disagree with this particular construction.

[00:09:15] Speaker 03:
Maybe it's possible that the board simply just assumed without deciding for purposes of doing the 102 rejection.

[00:09:22] Speaker 03:
And I think I understand what you recognize as a tension in the logic between assuming a claim construction for purposes of one rejection and then concluding there's no

[00:09:34] Speaker 03:
good claim construction for another rejection.

[00:09:37] Speaker 03:
But I'm not so sure we can conclude from the fact that they did a 102 rejection that the board necessarily embraced the claim construction for purposes of the written description given what they said on the written description rejection.

[00:09:51] Speaker 03:
I guess the follow-up on Judge Schall's question is, is it possible that we would need to remand on the written description question because

[00:10:02] Speaker 03:
Assuming that you're right that there's a defect with the written description rejection, we need to hear more from the board as to what is it that endorsement tag and token really mean.

[00:10:17] Speaker 03:
And to the extent it means something, it has migrated away from the content of the written description.

[00:10:26] Speaker 03:
Or alternatively, should we just reverse, if you are right,

[00:10:32] Speaker 03:
Because I guess in our view, anybody would know when you review the written description that endorsement tag and token can really only mean one thing, i.e.

[00:10:43] Speaker 03:
executable link.

[00:10:45] Speaker 05:
I think your last point, Your Honor, is exactly on the money.

[00:10:49] Speaker 05:
And that's that reversal is appropriate here.

[00:10:51] Speaker 05:
There's nothing in the record that would suggest that an alternative construction would even be possible.

[00:10:58] Speaker 03:
Could there be another way of doing it, which is to say we

[00:11:03] Speaker 03:
that may be reversing the written description rejection, because in our view, the other side just hasn't met their initial burden of proof.

[00:11:13] Speaker 03:
And so without actually getting to the heart of the merits of whether there is or is not written description, we would say because the other side needed to go further in making the case for written description, just because the claim uses different words, that alone is

[00:11:31] Speaker 03:
is not good enough.

[00:11:32] Speaker 03:
They have to go further and say why those different words in the claim mean something different than what's in the spec.

[00:11:39] Speaker 03:
And then because that burden had not been met, therefore the written description rejection cannot stand.

[00:11:46] Speaker 05:
That's right, Your Honor.

[00:11:47] Speaker 05:
That also would be a good reason to reverse and not have to remand.

[00:11:55] Speaker 05:
The burden of proof is on the petitioner, and the only

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evidence that they offered with respect to claim construction with respect to the support in the written description is that the words are not used in the written description.

[00:12:10] Speaker 05:
That's it.

[00:12:10] Speaker 05:
And that the law holds that the applicant can be their own lexicographer and that to support the written description, you don't have to use the same words.

[00:12:18] Speaker 03:
Their expert didn't say anything about the meaning of token endorsement tag in this relevant field of art?

[00:12:23] Speaker 05:
No, that's a good point.

[00:12:24] Speaker 05:
Their expert said tag and token

[00:12:28] Speaker 05:
In the abstract, he said some things about that, but if you look at what he said, in no way did he actually do a claim construction analysis.

[00:12:36] Speaker 05:
He didn't look at the context of the patent and prosecution history and say, okay, I've got these ideas of tag and token, let me apply it and see what a proper construction is.

[00:12:49] Speaker 05:
That part he did not do.

[00:12:50] Speaker 05:
He simply just hedged and said a few things about in the abstract, but there's no evidence of what that expert says

[00:12:58] Speaker 05:
of the proper claim construction, except what he admits in his deposition, which is that, yes, it is a proper claim construction for endorsement tag and token to be an executable link.

[00:13:10] Speaker 05:
Our expert agrees, and the petitioners agree, so there is really no dispute on claim construction, and nothing in the record would support something else.

[00:13:18] Speaker 05:
All that's left with the petitioner's burden that they tried to meet is the words are different, and that's it.

[00:13:27] Speaker 02:
Why don't you move on to the Paul referencing anticipation?

[00:13:30] Speaker 05:
Thank you, Your Honor.

[00:13:31] Speaker 05:
As I said, there is no express disclosure in the Paul reference of the claimed invention, and the Board found so.

[00:13:40] Speaker 05:
The Board said several times that there is no, Paul did not disclose expressly an example of two aspects of Paul that petitioner argued would be used together, and that Paul did not indicate expressly that those two routines could be used together.

[00:13:56] Speaker 03:
If we agree with the board's finding that the Paul reference expressly discloses that one of ordinary skill, that what Paul is disclosing is not only just different routines, but that the routines can be combined together, the routines that it's disclosing, then would you agree at that point, then what we have here is something that's very akin to KineMetal and therefore

[00:14:26] Speaker 03:
the 102 is affirmable.

[00:14:28] Speaker 05:
No, Your Honor, for two reasons.

[00:14:30] Speaker 05:
One, the Board didn't actually say that you can expressly combine these tools.

[00:14:38] Speaker 03:
In fact, it said... I agree with you that Paul doesn't say that you can combine the refer a friend routine with the direct email marketing campaign routine.

[00:14:49] Speaker 03:
But the board nevertheless did find that Paul expressly disclosed that the various routines that Paul discloses, Paul says you can combine them.

[00:15:02] Speaker 05:
There's some boilerplate to that effect, but let's assume for a second that you can combine, it does say you can combine refer-a-friend tool

[00:15:11] Speaker 05:
with the direct email campaign tool that targets users.

[00:15:14] Speaker 05:
That still would not be enough.

[00:15:16] Speaker 05:
And the reason is, is petitioner's argument actually requires modifying what Paul discloses as the referrer friend tool with aspects of the campaign manager.

[00:15:26] Speaker 05:
It doesn't simply say, use this tool and then combine it with this tool.

[00:15:30] Speaker 05:
In fact, if you use the referrer friend tool, what you'll do is you'll create an email and then Paul describes sending that email to all users.

[00:15:39] Speaker 05:
Combining it would simply lead you over then to start a new campaign and create a new campaign using the direct email campaign tool.

[00:15:48] Speaker 05:
What Petition is actually arguing is a modification of these tools, not simply combination.

[00:15:53] Speaker 05:
So when the board said, without support, but when the board said that you can expressly combine these two tools, that's not enough because you still must modify the tools and there's no suggestion of modification of these tools.

[00:16:09] Speaker 05:
in order to put them together to meet this claimed intervention.

[00:16:16] Speaker 05:
The problem that the board had, though, when it came to that conclusion at the end, that it said that there was anticipation, it relied on one fact and that was Dr. Yoshi's testimony.

[00:16:33] Speaker 05:
The board said that Dr. Yoshi's testimony was that, quote,

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the campaigns can be used together.

[00:16:40] Speaker 05:
But that actually finds no support in the record.

[00:16:43] Speaker 05:
First, it contradicts what the board said.

[00:16:45] Speaker 05:
The board said, we acknowledge that Paul does not indicate expressly that any of the computer routines in the campaign manager can be used with any of the other campaign manager computer routines.

[00:16:56] Speaker 05:
So that contradicts what it already found.

[00:16:59] Speaker 04:
And then second, when you look at what Dr. Yoshi says that the board.

[00:17:02] Speaker 04:
This is a matter of law.

[00:17:04] Speaker 04:
It can be used together enough.

[00:17:07] Speaker 04:
In other words, is it enough for Dr. Joshi it is here?

[00:17:11] Speaker 04:
Joshi, yes.

[00:17:12] Speaker 04:
And Ryan was the other expert on the other side, right?

[00:17:14] Speaker 04:
That's correct.

[00:17:15] Speaker 04:
Is it enough for Dr. Joshi to say they can be used together, or do you have to, to find anticipation, be able to say that the Paul reference necessarily shows that they are in fact used together?

[00:17:32] Speaker 05:
No, there could be, if it were the case,

[00:17:36] Speaker 05:
that there was a suggestion in Paul that one could modify these routines in order to apply the targeted emailing to any of these other routines.

[00:17:49] Speaker 05:
If that were actually expressed in Paul, that would be a different scenario.

[00:17:52] Speaker 05:
We don't have that.

[00:17:55] Speaker 05:
If you go to the Kinnamental case, for example, in there, what happened was you had a claimed invention that was an apparatus with two things.

[00:18:03] Speaker 05:
And the disclosure in the prior art

[00:18:05] Speaker 05:
disclosed two things, they just weren't the exact same things.

[00:18:10] Speaker 05:
And there were several combinations for what one of those things could be, and several possibilities for what the other thing could be.

[00:18:17] Speaker 05:
And therefore, because it did expressly disclose that you can put those two together, and one of the possible disclosed combinations is the claimed invention, that was anticipation.

[00:18:27] Speaker 05:
Here, you haven't reached the first step.

[00:18:29] Speaker 05:
You haven't got something in Paul that would combine these two together.

[00:18:34] Speaker 05:
And that's the first step that the petitioner would have had to find for the board to reach that question.

[00:18:42] Speaker 03:
Looking at the 1399 appeal, that patent board decision at JA 29 and JA 30, the board expressly referred to paragraphs 29 and 50 of the Paul reference.

[00:18:55] Speaker 03:
and looked at those two paragraphs to make a finding that what Paul is disclosing is not just individual routines, but Paul is also disclosing combining the various routines in various ways to make a multitude of email campaigns.

[00:19:19] Speaker 03:
So in that sense, the board has made a reading about what this reference teaches to one of ordinary skill in the art.

[00:19:27] Speaker 03:
If we conclude there's substantial evidence there for that, then that's what makes this case more like KineMetal.

[00:19:35] Speaker 05:
Well, Your Honor, I think the board distinguished KineMetal based solely on Yoshi's declaration when we pointed out KineMetal and argued that this is different than KineMetal in the opinion

[00:19:48] Speaker 05:
the board distinguished that case solely on Dr. Yoshi's testimony.

[00:19:53] Speaker 05:
When you look at those two paragraphs in Paul, paragraph 29 is simply boilerplate.

[00:19:59] Speaker 05:
And to conclude from that, that that would meet substantial evidence that someone can simply say, everything in this patent, you can combine it in any which way possible, and for that to be able to anticipate future inventions and future technology that no one's even thought of yet, simply because it's

[00:20:19] Speaker 05:
possible that you can pick and choose from this reference and someone says, boilerplate, everything in here you can combine any which way and that's my invention.

[00:20:29] Speaker 05:
That would be a rule that would destroy the ability for new inventions to combine new things, old things in new ways in a novel.

[00:20:36] Speaker 03:
It seems like the statement is important because if Mr. Paul wanted to write a claim

[00:20:43] Speaker 03:
that combine two routines together, he would have written description support for that, because he expressly said in his specification that you can combine two or more of these routines that he discloses.

[00:20:55] Speaker 05:
Well, Your Honor, I don't think that would be enough, because Paul would need to be more explicit about what it's combined.

[00:21:03] Speaker 05:
And boilerplate wouldn't get you there.

[00:21:06] Speaker 05:
Paul describes a system that operates in a very specific way.

[00:21:11] Speaker 05:
Refer Friend operates starting on paragraphs 100 through 102.

[00:21:15] Speaker 05:
It's described and operating one way.

[00:21:18] Speaker 05:
The campaign manager is described overall as combining these two different tools, but then it specifically talks about this direct email campaigning tool beginning on paragraphs 60 and continuing through 71.

[00:21:33] Speaker 05:
When it describes how these two tools operate, the routines follow a certain path and a certain procedure

[00:21:40] Speaker 05:
Now, simply saying that combining these two routines together isn't going to get you there.

[00:21:46] Speaker 05:
It's not enough because all you're doing is stacking one routine on each other and you complete one routine and then you finish with the other.

[00:21:55] Speaker 05:
What petitioner needs to show in order for it to anticipate is modify the refer for an routine.

[00:22:02] Speaker 05:
It doesn't operate in the way Paul describes.

[00:22:05] Speaker 05:
Instead of sending it to all members,

[00:22:07] Speaker 05:
What you do is you take this piece from the middle of the campaign manager description of the campaign tool on paragraph 64 where it describes how upon selection of the send function the user must establish which members will be sent.

[00:22:28] Speaker 05:
So you're taking the middle of the campaign tool 108

[00:22:35] Speaker 05:
and attaching it to the middle of the refer-friend tool.

[00:22:37] Speaker 05:
You're modifying it.

[00:22:38] Speaker 05:
You're not simply combining them together.

[00:22:40] Speaker 02:
Counselor, you're into your rebuttal time.

[00:22:41] Speaker 02:
Do you want to reserve the rest of your time?

[00:22:42] Speaker 05:
Thank you, Your Honor.

[00:22:43] Speaker 05:
I'll reserve my time.

[00:22:50] Speaker 02:
Ms.

[00:22:50] Speaker 02:
Gills?

[00:22:54] Speaker 00:
May it please the court?

[00:22:56] Speaker 00:
My name is Jean Gills, and I'm counsel for cross-appellant, Groupon, and also appellant Groupon in the case of the 646 patent appeal.

[00:23:05] Speaker 00:
I want to address three quick points, address patent owner's commentary about Paul and the written description argument, and also deal with our cross-appel argument, which focuses on rats the more.

[00:23:17] Speaker 00:
First, with respect to Paul, the patent owner doesn't really dispute that the four corners of Paul teach all of the claim limitations, and that is what the board found.

[00:23:27] Speaker 00:
They simply tried to argue that it's in two separate

[00:23:30] Speaker 00:
sections of Paul, either the advertising method, which they say discloses targeted advertisements based on demographics, and the refer-a-friend method.

[00:23:39] Speaker 00:
But I think it's clear when you read Paul, as the board did, that it describes a single system supported at JA 860 to 61.

[00:23:47] Speaker 00:
That is a system or a computer program that a person of skill in the art, here a computer scientist familiar with mobile and electronic commerce,

[00:23:57] Speaker 00:
would understand could use different tools and different routines.

[00:24:01] Speaker 02:
Are you arguing that what we have here is a case of inherent anticipation?

[00:24:08] Speaker 00:
No, Your Honor.

[00:24:08] Speaker 00:
The board does not use inherency in its decision at all.

[00:24:12] Speaker 00:
And I don't think that inherency is needed.

[00:24:15] Speaker 00:
Paul is describing a single system, not just in paragraphs 29 and 50 that Judge Chen referred to, but even if you look at paragraph 100, where it talks about

[00:24:26] Speaker 00:
the campaign manager can specifically call the refer a friend routine.

[00:24:32] Speaker 00:
It is a tool within that manager.

[00:24:34] Speaker 00:
The campaign manager is actually needed in order to run the campaign and send the email.

[00:24:41] Speaker 00:
Contrary to patent owner's arguments, it's not just, I'm sorry.

[00:24:44] Speaker 03:
I'm sorry, Ms.

[00:24:44] Speaker 03:
Gillis, you're not arguing that paragraph 100 or anywhere else in Paul explicitly discloses the combination of the direct email marketing campaign routine with the refer a friend routine, are you?

[00:24:56] Speaker 00:
I do think that that is suggested by Paul when it says that.

[00:25:00] Speaker 03:
The board didn't say that, right?

[00:25:03] Speaker 00:
I think there's support in the record for that where it says Paul teaches that refer a friend routine is a tool within a campaign manager and you need that campaign manager in order to send out the emails.

[00:25:14] Speaker 00:
Paul also teaches that the emails don't have to go to everyone.

[00:25:18] Speaker 00:
They can be targeted based on demographics.

[00:25:21] Speaker 03:
Does Paul teach that with respect to the refer a friend campaign?

[00:25:25] Speaker 00:
I believe it does, within the context of Paul.

[00:25:28] Speaker 00:
Where does it teach that?

[00:25:29] Speaker 00:
If we look at JA 866 or paragraph 51 of Paul.

[00:25:41] Speaker 00:
Also JA 871 at paragraph 77.

[00:25:44] Speaker 00:
If we look at paragraph 50 where it says, Paul states, sponsors can add new news items with graphics

[00:25:53] Speaker 00:
web links or hyperlinks.

[00:25:55] Speaker 03:
I'm sorry, what line are you at?

[00:25:56] Speaker 00:
I'm sorry.

[00:25:57] Speaker 00:
If we look at paragraph 50 of Paul, where Paul talks about, sponsors can add new news items with graphics, web links or hyperlinks, and have the ability to create numerous types of email campaigns, such as referral frame campaign, through the campaign manager discussed later.

[00:26:17] Speaker 00:
So I think clearly Paul has contemplated that the campaign manager of this system

[00:26:23] Speaker 00:
can send targeted advertisements to specific users?

[00:26:30] Speaker 03:
I'm sorry, I didn't quite pull that out of that sentence you just read.

[00:26:34] Speaker 03:
The sentence clearly talks about a refer a friend campaign.

[00:26:39] Speaker 03:
It doesn't say anything about doing the refer a friend campaign in a targeted customer kind of a way, rather than what it earlier disclosed about

[00:26:52] Speaker 03:
Just an email blast to everybody.

[00:26:54] Speaker 03:
Right.

[00:26:55] Speaker 00:
I think you've got to look at multiple sections of Paul together, all of which we cite in our papers.

[00:27:00] Speaker 00:
I think if you look at paragraph 50 of Paul, which I decided to.

[00:27:04] Speaker 00:
If you look at paragraph 86 of Paul, where Paul expressly discloses that when you set up a campaign, the referral friend function is available as a tool.

[00:27:15] Speaker 00:
When you look at

[00:27:17] Speaker 00:
how the board found that Paul teaches all the key elements of the claims, the creating of profiles, ensuring that there's a match condition, providing a subsidy, all of the claimed elements and features.

[00:27:31] Speaker 03:
Right, but they don't disclose any of that in reference to the Refer a Friend campaign, do they?

[00:27:36] Speaker 00:
I believe that they do.

[00:27:38] Speaker 03:
And our expert, Dr. Yoshi... Well, is this sentence in paragraph 50 your best sentence for them?

[00:27:45] Speaker 00:
No, no.

[00:27:46] Speaker 03:
What's your best sentence?

[00:27:48] Speaker 00:
I think, again, you've got to look at several paragraphs of Paul and look at them together.

[00:27:53] Speaker 00:
You've got to look at paragraph 29 that talks about Paul being a single system.

[00:27:58] Speaker 00:
I think you can look to figure five, which, again, gives a diagrammatic view of the entire system.

[00:28:05] Speaker 00:
You can look at paragraph 50, which talks about the campaign manager being able to send referral friend emails.

[00:28:12] Speaker 00:
I think you read that in the context of the section of Paul that talks about

[00:28:17] Speaker 00:
what the Refer a Friend routine is designed to do.

[00:28:20] Speaker 00:
I think you can look at paragraph 42 of Paul that talks about how profiles are generated based on geographic data.

[00:28:28] Speaker 00:
You can look at paragraph 51 that talks about the match condition for Paul.

[00:28:33] Speaker 03:
Is that with respect to Refer a Friend campaign?

[00:28:37] Speaker 00:
Again, this is a system where all of these items are intended to work together.

[00:28:41] Speaker 00:
Akin to what PTAP Judge Kim said, it's like if you're using

[00:28:44] Speaker 03:
Microsoft Word.

[00:28:46] Speaker 03:
What about Mr. Conrad's concern that what you have to do in order to combine the direct email marketing campaign routine, which in my view is what you're describing in all those other parts of the spec of Paul, combining that routine with the refer a friend campaign routine, that you have to do some modifications to the routines in order to get them to operate together.

[00:29:12] Speaker 00:
I don't think you need to do that.

[00:29:13] Speaker 00:
I think, again, looking at paragraph 51 of Paul, also looking at our record at JA 871 paragraph 77, the campaign manager of Paul is expressly taught as having the ability to target its campaigns based on... Can you describe how you would do the combination together?

[00:29:32] Speaker 03:
As I understand Mr. Conrad, he seemed to be saying you do the refer a friend campaign first routine and then you do the

[00:29:41] Speaker 03:
the direct email marketing campaign after that?

[00:29:43] Speaker 03:
I would think it would be reversed.

[00:29:44] Speaker 03:
You would do the direct email campaign first, and then through that campaign, you would have a subroutine, the refer a friend campaign.

[00:29:53] Speaker 03:
Is that how?

[00:29:54] Speaker 03:
Well, you know, we need to understand for sure how it's possible to see how it matches with the claim.

[00:30:01] Speaker 03:
So what would be the combination of the two routines that one would envisage

[00:30:09] Speaker 03:
one of ordinary skill in the art would envisage in order to read on every single one of these elements in the order that they're presented.

[00:30:17] Speaker 00:
One would envision that you would collect the profile and matching data as described in the earlier sections of Paul.

[00:30:25] Speaker 03:
And then based on the accumulation... Are you talking about the direct email marketing campaign?

[00:30:29] Speaker 00:
No, no, no.

[00:30:29] Speaker 00:
These are... This is profile information that you can collect.

[00:30:34] Speaker 00:
And then the campaign manager has access to and can control that information.

[00:30:39] Speaker 00:
And then you can use a refer-a-friend campaign to target those particular individuals that you've determined best match the criteria of the advertiser at issue.

[00:30:53] Speaker 02:
I think your exchange with Judge Chan illustrates a problem that I'm having with your argument.

[00:31:00] Speaker 02:
And in Kenamental, we said,

[00:31:02] Speaker 02:
that you can have this type of a combination of a person skilled in the art.

[00:31:06] Speaker 02:
It's not just in vision.

[00:31:07] Speaker 02:
It's at once in vision.

[00:31:11] Speaker 02:
And it seems to me that you've jumped around a lot in the Paul reference, and you're cobbling together, and with argument, cobbling together the different limitations.

[00:31:27] Speaker 02:
And I'm not sure that I would call that

[00:31:31] Speaker 02:
once skilled in the art would at once envision this combination.

[00:31:37] Speaker 00:
I respectfully disagree, Your Honor.

[00:31:39] Speaker 00:
I think here we're dealing with someone who is at least has a bachelor of science in computer science, who is very skilled with computer programming and very skilled with mobile and electronic commerce.

[00:31:52] Speaker 02:
I understand all that, but show me then, show me in the reference just by looking at it that you would at once understand the combination.

[00:32:01] Speaker 00:
Sure.

[00:32:02] Speaker 00:
Like I say, I think you can look at the diagram of the entire system and how the campaign manager is like the brain of that system to run various routines that the system can carry out.

[00:32:15] Speaker 00:
The system describes a means for sending targeted advertisements to specific users and a way by which those users can refer those advertisements and get an incentive or reward in doing so.

[00:32:27] Speaker 00:
And our expert

[00:32:30] Speaker 00:
puts all of that together and again I direct the board to or the panel to J a sites a 60 to 61 J a 18 39 to 41 J a 52 41 to 45 again all the various paragraphs I'm sorry sir J a 5 2 4 1 to 5 2 4 5 and

[00:32:53] Speaker 00:
So all the various paragraphs of Paul that I mentioned, paragraph 29, 42, 50, 51, 53, 100, 86, 57.

[00:33:01] Speaker 00:
There's numerous support for Paul being one system and all of the elements being there.

[00:33:12] Speaker 04:
Just a second.

[00:33:13] Speaker 04:
53, 57.

[00:33:15] Speaker 00:
Yes, sir.

[00:33:16] Speaker 00:
86, 100, and the

[00:33:20] Speaker 00:
subsequent paragraphs that describe how the referral friend routine works.

[00:33:25] Speaker 00:
There is substantial evidence.

[00:33:28] Speaker 03:
Ms.

[00:33:28] Speaker 03:
Gillis, I think you might be making it unnecessarily complicated.

[00:33:32] Speaker 03:
I mean, if you just, the board handed you a roadmap.

[00:33:38] Speaker 05:
Yes, they did.

[00:33:39] Speaker 03:
There's a handful of tools here in the Paul reference.

[00:33:45] Speaker 03:
One of them is the direct marketing, email marketing campaign.

[00:33:48] Speaker 03:
Another one is the Refer a Friend campaign.

[00:33:51] Speaker 03:
And if you look at paragraphs 29 and 50 of Paul, Paul teaches that not only is he talking about individual tools, he's talking about the combination of said individual tools.

[00:34:06] Speaker 03:
And so therefore, the board found that Paul teaches combining the disclosed tools, and by that disclosure,

[00:34:18] Speaker 03:
One of ordinary skill in the art would at once envision the combination of the refer a friend campaign with the direct email marketing campaign.

[00:34:27] Speaker 00:
Yes, Your Honor.

[00:34:27] Speaker 00:
I agree with you 100%.

[00:34:28] Speaker 00:
And I think the board summarizes that in its final written decision for the 516, for example, at pages 25 to 27.

[00:34:37] Speaker 00:
I was again just trying to point the board to the numerous sections in Paul itself which describe to a posa how the system works, how it's one system,

[00:34:47] Speaker 00:
and how these two concepts work together.

[00:34:49] Speaker 00:
I want to switch to written description.

[00:34:51] Speaker 03:
I was confused by the written description rejection because it seemed to me that what the board could have or should have done is maybe make alternative rejections.

[00:35:08] Speaker 03:
Either do a one of two rejection on Paul or do a written description rejection because

[00:35:15] Speaker 03:
Somehow the terms token and tag means something completely different than link, or token and tag are somehow insolubly ambiguous, and so there's just no support for these mysterious words.

[00:35:29] Speaker 03:
But as soon as you arrive at that conclusion, then I don't see how you can do a 102 rejection.

[00:35:34] Speaker 03:
Likewise, if you do a 102 rejection, it's because you know what token and tag mean.

[00:35:40] Speaker 03:
They mean a link.

[00:35:41] Speaker 03:
And Paul teaches a link, and that's why the 102 is affirmable.

[00:35:46] Speaker 03:
It seems like an either or proposition.

[00:35:48] Speaker 03:
I don't see how the board was able to really impose both projections.

[00:35:55] Speaker 00:
I'll address that.

[00:35:58] Speaker 00:
We, Groupon, made the alternative argument.

[00:36:00] Speaker 00:
We first led with the endorsement tag and token have no 112 support.

[00:36:06] Speaker 00:
And we believe that.

[00:36:07] Speaker 00:
And there's ample support for that, both in the final written decision and in our papers.

[00:36:14] Speaker 00:
We also make the alternative argument that if we did not prevail on 112, or those two arguments could coexist, that the prior art either anticipated or rendered obvious.

[00:36:25] Speaker 03:
It sounds like you agree that we can't sustain both rejections.

[00:36:30] Speaker 00:
I don't necessarily agree.

[00:36:31] Speaker 00:
In one of the cases that we cite, I don't have it at hand, but we cite it, I think, in our papers, is a decision in which I believe this court found both

[00:36:41] Speaker 00:
invalidity based on 112 and based on prior art objections.

[00:36:45] Speaker 00:
So I do think there is a world where those two objections can stand side by side.

[00:36:51] Speaker 00:
If we first deal with the written description argument.

[00:36:53] Speaker 03:
So what would the logic be for how those two rejections can stand by side by side?

[00:36:59] Speaker 00:
The query for written description is

[00:37:04] Speaker 00:
Is there proof within the four corners of the application that these inventors had possession of what those terms were?

[00:37:11] Speaker 00:
And the PTAB does acknowledge that both sides say it could mean a link.

[00:37:19] Speaker 00:
And part of why Groupon took that position is that was the construction that patent owner had used in the related litigation using the broadest construction for infringement purposes.

[00:37:29] Speaker 00:
So we say if that's a construction that the court adopts,

[00:37:33] Speaker 00:
for purposes of the prior art objections, where is, for 112 purposes, proof within the four corners that this inventor had possession of these two terms?

[00:37:45] Speaker 00:
There's no dispute that endorsement tag and token are nowhere in the 144 application.

[00:37:52] Speaker 00:
You asked a question about the timing.

[00:37:55] Speaker 00:
That application was filed in December of 2005.

[00:37:57] Speaker 00:
It wasn't until an RCE four years later that these terms show up.

[00:38:03] Speaker 03:
I'm still getting to my concern and you know and maybe there's no good answer you know and all we can do is just say a bunch of words at this point I don't know but it seems to me that if you're doing a written description rejection it's because tag and token means something different different than the disclosed link in the written description what what what

[00:38:33] Speaker 03:
What's your view of what token and tag mean?

[00:38:37] Speaker 03:
Because for purposes of the written description rejection, I did not see the board reach any conclusion what token and tag mean.

[00:38:44] Speaker 03:
And I think it's almost a necessary step you have to do before you conclude that the written description somehow fails to support what token and tag are.

[00:38:56] Speaker 00:
I think what the board does is they first analyze whether the inventors had possession of those two terms, and the board says they do not.

[00:39:04] Speaker 03:
Well, we have to understand what token and tag mean before we can figure out whether the inventor has possession of those terms.

[00:39:10] Speaker 00:
And they say there is certainly disclosure in the application for what is a link or what is a hyperlink, and there are diagrams and there are paragraphs that refer to that.

[00:39:21] Speaker 00:
What is missing is saying token equals hyperlink or endorsement tag equals hyperlink.

[00:39:29] Speaker 04:
Don't the parties agree to that construction?

[00:39:33] Speaker 04:
They say that token and tag equals hyperlink?

[00:39:36] Speaker 00:
We agree to that construction for purposes of our 102-103 arguments where we argued in the alternative.

[00:39:43] Speaker 00:
And the board acknowledges that agreement within the decision.

[00:39:46] Speaker 04:
But you don't agree with it for purposes of the 112 rejection.

[00:39:50] Speaker 00:
For 112, we say, even if it did, nowhere do you tell a person of skill in the arc that those two things are equivalent.

[00:39:58] Speaker 00:
And there's reasons in the record to suggest why they're not.

[00:40:01] Speaker 04:
But doesn't that suggest that we need to have a claim construction exercise here of some kind?

[00:40:06] Speaker 04:
I mean, if the board had said, we conclude, based on the arguments of the parties and our examination of the claims and the written description, that endorsement tag and token mean

[00:40:19] Speaker 04:
executable hyperlink, then that would be one thing.

[00:40:24] Speaker 04:
If the board said it concluded that they meant something else, that would be another.

[00:40:30] Speaker 04:
Doesn't there have to be some kind of somewhere, either a claim construction that's agreed upon by the parties that a court or the board accepts, or a determination by the board as to a claim construction?

[00:40:43] Speaker 00:
I do think that the board implicitly makes that construction.

[00:40:46] Speaker 00:
If you look at the final written decision for the 516, for example, at page 35 of that decision, they say, petitioner asserts, as in us, endorsement tag should be construed as executable length such as hyperlink, and that endorsement tag must be related to an advertiser link with advertising content.

[00:41:05] Speaker 04:
But then they say that if that's the construction, that there's disclosure.

[00:41:10] Speaker 00:
There's not disclosure.

[00:41:11] Speaker 00:
of saying that word, endorsement tag, could be... But haven't they just said that endorsement tag equals hyperlink?

[00:41:20] Speaker 04:
And if endorsement tag equals hyperlink, and the hyperlink is disclosed, then... That's us looking at it now.

[00:41:29] Speaker 03:
Where in the corners of the 144 does the inventor... The claim construction exercise is done at the time of the invention, you know?

[00:41:38] Speaker 00:
Right.

[00:41:38] Speaker 03:
And if the claim construction ultimately is that this

[00:41:42] Speaker 03:
these terms mean link, then there's written description support.

[00:41:46] Speaker 03:
I guess the way I see your argument is as a matter of law, in your view, the specification needed to take the step of saying tag and token mean link.

[00:42:00] Speaker 03:
But if we disagree with that and conclude that our law stands for the proposition that if you use a term that is never discussed before in the spec,

[00:42:10] Speaker 03:
Nevertheless, that claim term is discernible based on the context of how it's used in the claim and the context of the written description, then there isn't this, it seems more like an indefiniteness problem in some ways, but regardless, then there would be written description support because we understand what the claim term means and in fact it lines up with what is being disclosed.

[00:42:38] Speaker 00:
Again, I think I would go a step further than what you're saying.

[00:42:40] Speaker 00:
I think we would say as a matter of law, not only here where the patent owner doesn't say endorsement tag or token means link, here we've got claims that use three different terms.

[00:42:54] Speaker 00:
We've got claim terms that use endorsement tag, claim terms that use token, and we've got claim terms that use link.

[00:43:01] Speaker 00:
For example, claims 25 and 27 use link, other claims use endorsement tag,

[00:43:07] Speaker 03:
or token.

[00:43:22] Speaker 00:
If you look at the prosecution history, the prosecution history undercuts them in a couple of ways.

[00:43:28] Speaker 00:
They added those terms because Link was rejected as being obvious.

[00:43:32] Speaker 00:
So that was motivation for them to come up with another term that meant, in theory, something else to overcome.

[00:43:41] Speaker 03:
If you look at the prosecution though, they did a massive overhaul to the claims.

[00:43:45] Speaker 03:
They didn't just delete the word Link and then insert the term endorsement tag or token.

[00:43:51] Speaker 03:
It was a major overhaul in the claim.

[00:43:53] Speaker 03:
So I don't think you can rely on that as some kind of clear suggestion that they were trying to run away from equating endorsement tag the claim.

[00:44:05] Speaker 00:
I think you've got to look at both the prosecution for the 516 and then look at the subsequent prosecution for the other applications.

[00:44:12] Speaker 00:
Once they got to patent number two, the 679 patent,

[00:44:16] Speaker 00:
They added additional new content, new disclosure to support what endorsement tag meant.

[00:44:22] Speaker 00:
Why would you need to do that if there was adequate written description in the 144 application?

[00:44:27] Speaker 00:
There was not.

[00:44:28] Speaker 02:
Do you want to quickly address your counterclaim given the fact that your time is running?

[00:44:34] Speaker 00:
Sure.

[00:44:35] Speaker 00:
Again, just a site for some record sites for our written description position, JA742 to 759, JA2828 to 2829.

[00:44:46] Speaker 00:
The Yoshi declaration.

[00:44:48] Speaker 04:
What's the second site?

[00:44:49] Speaker 00:
I'm sorry, JA 2828 to 2829.

[00:44:55] Speaker 00:
And our expert Dr. Yoshi also gave alternative definitions for endorsement tag and token that don't equal link at JA 1657 to 58.

[00:45:07] Speaker 00:
And the applied medical research case that we cite in our papers as to why use of different claim terms

[00:45:15] Speaker 00:
undercuts their position.

[00:45:17] Speaker 02:
OK, thank you.

[00:45:19] Speaker 00:
Thank you, Your Honor.

[00:45:20] Speaker 00:
Our cross appeal solely relates to whether or not the Ratsamore reference is a printed publication.

[00:45:27] Speaker 00:
Here, I think there's no dispute as to the level of skill in the art.

[00:45:30] Speaker 00:
A person with a computer science degree, facile with mobile commerce.

[00:45:34] Speaker 00:
The state of the internet in 2003 and 2004, the relevant critical date period here,

[00:45:41] Speaker 00:
as based on a prior art reference that we rely on at JA 1175.

[00:45:47] Speaker 00:
Also, there's an existence of a related article, the Ratsmore article from one month earlier at JA 2052-59.

[00:45:59] Speaker 00:
And here, I think if you look at the cases that talk about public accessibility being the cornerstone of publication,

[00:46:09] Speaker 00:
and whether or not a POSA exercising reasonable diligence could have found this reference.

[00:46:16] Speaker 00:
I think all the factors and evidence in the case support that a computer scientist fast-filed with mobile commerce would have been able to find the Ratsmore reference here.

[00:46:28] Speaker 00:
This is a better case than Bruckermeier, the Federal Circuit case cited in our briefs.

[00:46:34] Speaker 00:
where the court there said a Canadian patent was a road map to deleted patent figures in a patent file.

[00:46:42] Speaker 00:
That patent file was in a physical location in one patent office in Quebec.

[00:46:48] Speaker 02:
Here, we- What evidence, though, do you have that the Ratsboro references existed in 2003?

[00:46:55] Speaker 02:
That it actually was there in order to be assessable?

[00:47:00] Speaker 00:
We have two sets of metadata evidence that are not disputed.

[00:47:03] Speaker 00:
We have metadata evidence at J.A.

[00:47:06] Speaker 00:
1991 and 1992 that shows Ratsmore was created in 2003.

[00:47:13] Speaker 00:
We have metadata evidence that said that Ratsmore... Did the board consider this evidence?

[00:47:19] Speaker 00:
It was in the record.

[00:47:20] Speaker 00:
The board did not, in my view, adequately consider the wealth of evidence that supported it.

[00:47:26] Speaker 02:
Was it brought to their attention?

[00:47:27] Speaker 00:
Yes, it was, Your Honor, both in oral argument and in many of the papers.

[00:47:31] Speaker 00:
That second set of metadata evidence showed that Ratsmore was on the web server no later than October 2004 at JA 2028, which is prior to the critical date here.

[00:47:45] Speaker 00:
So there's no dispute that it was there.

[00:47:48] Speaker 00:
at the relevant time period on a public website, we're talking about a major university, University of Maryland, Baltimore County, computer science, doubly department.

[00:47:59] Speaker 03:
Well, that's the question.

[00:48:01] Speaker 03:
The concern I saw the board having was that there was no evidence that this particular page with this publication was indexed, right, to the extent that

[00:48:17] Speaker 03:
a search engine would be able to find it.

[00:48:19] Speaker 03:
Now, if you were to tell me that you could go to the official UMBC website that would have a link to the computer science department, and then the computer science department's webpage would have a direct link to Ratz and Moore's publication page, which then has a link to the paper, then that would be something to suggest that this particular link with this paper

[00:48:45] Speaker 03:
has been indexed or could be indexed.

[00:48:48] Speaker 03:
But right now what is missing from the record, and this is what the board seemed to be harping on, was any suggestion that this particular page was findable by search engines.

[00:49:01] Speaker 03:
And this is this point that I think our court was making in Voter Verified where we did find that online reference to be

[00:49:11] Speaker 03:
accessible, but not because there was evidence of indexing, because there was no evidence of indexing in that case, but instead it was because that particular web page was known to those of skill in the art as a place to go to find interesting things in that relevant field, which is lacking in this particular instance with respect to Ratz-Moore's publication page.

[00:49:33] Speaker 00:
I wanted to address voter verified.

[00:49:35] Speaker 00:
First, I want to say that we have unrebutted testimonial evidence from Dr. Yoshi

[00:49:40] Speaker 00:
that as of 2003, at that particular web link, this article or report was available to the public for viewing and downloading.

[00:49:49] Speaker 00:
That testimony was not challenged.

[00:49:52] Speaker 03:
The board, I think, didn't challenge the question of whether it was available at that particular URL address.

[00:50:01] Speaker 03:
The board agreed on the fact that nobody of skill and the art would

[00:50:06] Speaker 03:
know how to get to that URL address because there was no evidence of indexing, nor was there any evidence that one skill in the art would know about this particular URL address and then consult it.

[00:50:21] Speaker 00:
And I can address that.

[00:50:22] Speaker 00:
Again, I think the facts in our case are stronger than voter verified.

[00:50:25] Speaker 00:
Again, voter verified dealt with the Benson article, which was an online periodical from the mid-90s time frame.

[00:50:34] Speaker 00:
So we're talking about

[00:50:36] Speaker 00:
as of 1999 and there the court said that commercial internet search engines were available at that time and even though there was no evidence and voter verified that that particular article was specifically crawled or indexed, similar to us, and voter verified the court still found that it was publicly accessible.

[00:50:59] Speaker 00:
So now let's look at the time frame.

[00:51:00] Speaker 02:
Well that's because in voter verified there was sufficient proof that the article was there.

[00:51:05] Speaker 02:
And we have sufficient proof.

[00:51:07] Speaker 02:
So the question was whether it was available or accessible.

[00:51:12] Speaker 02:
There's got to be more than showing that it's there.

[00:51:16] Speaker 02:
Your problem is, I think, that you haven't shown, there's evidentiary problem with it, that the article was actually there.

[00:51:24] Speaker 02:
And your expert says, well, it was around, or says it was around November of 2003, and query whether that's substantial evidence that it was there.

[00:51:35] Speaker 00:
I don't think the board quibbled with whether or not it was there.

[00:51:38] Speaker 00:
I think both Yoshi's testimonial evidence showed that it was there.

[00:51:42] Speaker 00:
The two sets of metadata evidence that were undisputed, not challenged by patent owner, showed that the article was there and available.

[00:51:51] Speaker 00:
The question the board had was could a POSA locate it?

[00:51:55] Speaker 00:
Our response is yes.

[00:51:57] Speaker 00:
This POSA, a computer scientist in 2003, motivated to find articles about mobile and electronic commerce

[00:52:05] Speaker 00:
where you've got a group of authors.

[00:52:07] Speaker 00:
If you compare the front page of the Ratsmore report to the front page of the related Ratsmore article from one month earlier, you've got identity of authors.

[00:52:20] Speaker 00:
You have their titles, their job locations, their email addresses.

[00:52:26] Speaker 03:
OK, so just to clarify, because there's a couple of different things going on.

[00:52:31] Speaker 03:
You're making an argument about the research aid

[00:52:34] Speaker 03:
notion, right?

[00:52:35] Speaker 03:
You're not making an argument that this website had been indexed or that this website was really popular among those of ordinary skill in the art and so they would already know to go to this URL address, right?

[00:52:46] Speaker 03:
You're focusing on research aid.

[00:52:48] Speaker 00:
I'm making two, I'm making both of those arguments and let me try to separate them.

[00:52:54] Speaker 00:
Yes, this was a website that I think people of skill in the art

[00:52:58] Speaker 00:
would have gone to.

[00:52:59] Speaker 00:
It is a major university website, it is the computer science and EE department of that website, and it is the location of multiple authors, professors who are known in this space to be working on these topics.

[00:53:14] Speaker 02:
They have published on e-commerce.

[00:53:19] Speaker 00:
So again, voter verified indexing was not done in that case.

[00:53:24] Speaker 00:
That was 1999.

[00:53:26] Speaker 00:
We're five years later with the critical date here where search engines are advanced and we're talking about a major university website and computer science folks.

[00:53:36] Speaker 00:
When you look at the research aid of Cornell or Brucklmeyer, clearly the Ratsmore article at 2052 was a sufficient research aid where that article was downloaded more than 4,000 times.

[00:53:50] Speaker 00:
A person of skill in the art would have been motivated where that article said, we are doing more work.

[00:53:55] Speaker 00:
We're getting government funding.

[00:53:57] Speaker 00:
We are expanding on this.

[00:53:59] Speaker 00:
A person of skill would have been motivated to look up Dr. Ratsmore, go to the UMB site,

[00:54:06] Speaker 00:
If you plug in her name, you get to either ubiquity, publications.

[00:54:10] Speaker 02:
You're making new arguments, and I did ask you to conclude.

[00:54:13] Speaker 02:
I'm going to restore you back to five minutes for your rebuttal, because we took you on with questions.

[00:54:21] Speaker 02:
Thank you very much.

[00:54:22] Speaker 02:
Thank you, Your Honor.

[00:54:33] Speaker 01:
Debrahan?

[00:54:33] Speaker 01:
Your Honors, may I please the court?

[00:54:35] Speaker 01:
The director intervened in these cases to address the board's initial determination.

[00:54:40] Speaker 01:
As Blue Calypso did not address that issue in its opening, we request that the court affirm the board's initial determination that Blue Calypso's patents are covered business method patents subject to CBM review.

[00:54:51] Speaker 02:
Just a quick question.

[00:54:52] Speaker 02:
What's the difference between a covered business method and a business method, one that's not covered?

[00:54:59] Speaker 01:
A covered business method and one that is not covered?

[00:55:02] Speaker 01:
Right.

[00:55:02] Speaker 01:
A covered business method patent

[00:55:04] Speaker 01:
includes any sort of data or processes that include a financial component.

[00:55:11] Speaker 01:
And so in that sense that whether or not there is something that uses a data processing or a management system in the financial sector or industry.

[00:55:21] Speaker 01:
But as the board found and as the regulations include, that determination is not just limited to the financial sector.

[00:55:32] Speaker 03:
But could you explain what would be an example of an uncovered business method?

[00:55:38] Speaker 01:
Of an uncovered business method?

[00:55:40] Speaker 03:
Yeah.

[00:55:40] Speaker 03:
I mean, it says covered business method.

[00:55:42] Speaker 03:
And as I understand Judge Raina's question, that means there is likely uncovered business methods.

[00:55:49] Speaker 03:
So what kinds of business method patents are not eligible for the covered business method patent proceeding?

[00:55:57] Speaker 01:
If the business method did not have anything to do with the

[00:56:01] Speaker 01:
practice, administration, or management of a financial product or service, then I guess it would not be a covered business method patent.

[00:56:07] Speaker 01:
Or if it was a technological invention, then it would not be a covered business method patent.

[00:56:15] Speaker 02:
Did you say that all business patents have a financial sector to it or a financial purpose to them?

[00:56:22] Speaker 01:
All business methods?

[00:56:23] Speaker 02:
Yes.

[00:56:26] Speaker 01:
Well, here the determination is directed to the claims themselves.

[00:56:31] Speaker 01:
So to the extent the claims themselves have a financial component, they would be a covered business method.

[00:56:38] Speaker 01:
But to the extent that they don't, they would not fall under that definition.

[00:56:43] Speaker 01:
Does that answer your question?

[00:56:45] Speaker 02:
That's OK.

[00:56:46] Speaker 02:
You can go on.

[00:56:48] Speaker 03:
Yeah.

[00:56:48] Speaker 03:
I'm just curious.

[00:56:49] Speaker 03:
What kind of patent that relates to commerce would not

[00:56:58] Speaker 03:
qualify for covered business method patent?

[00:57:01] Speaker 03:
Or another way of putting it is, is it the agency's view that anything related to e-commerce is a covered business method patent eligible for this proceeding?

[00:57:12] Speaker 01:
I think any patent that claims e-commerce that includes a financial component would be covered by the covered business method patent definition and would be subject to CBM review.

[00:57:24] Speaker 01:
So it is a broad definition and

[00:57:27] Speaker 01:
e-commerce patents, such as the ones that are at issue here, are the type that would be covered by the CBM definition and subject to CBM review.

[00:57:37] Speaker 02:
What about a patent, for example, that would help a business owner determine whether they lock the doors at night or not?

[00:57:45] Speaker 02:
Would that be a covered business method patent?

[00:57:48] Speaker 01:
Well, to the extent that claims themselves included something that also

[00:57:55] Speaker 01:
had a financial aspect to it, then I think they would be covered.

[00:57:59] Speaker 01:
But you would have to look at the claims themselves.

[00:58:01] Speaker 01:
In that hypothetical, you're asking me what the patent is generally directed to.

[00:58:04] Speaker 01:
But what the board does is look at the claims themselves to determine whether or not it is a covered business method patent within the definition.

[00:58:11] Speaker 02:
The example I gave you, the business owners concern about losing, having somebody break in or steal things.

[00:58:19] Speaker 02:
And so I'm just curious whether that business patent

[00:58:23] Speaker 02:
It has a financial sector in it, or not, in your mind?

[00:58:27] Speaker 01:
Well, I think, again, to the extent the claims themselves had some sort of financial component to them.

[00:58:35] Speaker 02:
But they're business patents.

[00:58:36] Speaker 02:
I mean, these are business.

[00:58:39] Speaker 02:
So don't they all have some sort of financial component built into them?

[00:58:42] Speaker 01:
Well, the CBM proceedings were instituted to address a specific type of patent that... Well, that's my point.

[00:58:49] Speaker 02:
I agree.

[00:58:50] Speaker 02:
Okay, what type of patents do they not address?

[00:58:53] Speaker 01:
they would address patents that would fall out of that definition.

[00:58:57] Speaker 01:
So and to the extent, in your hypothetical, if the business method relates to protecting homeowners from people who are breaking into their homes.

[00:59:08] Speaker 06:
Business owners.

[00:59:08] Speaker 01:
The business owners.

[00:59:10] Speaker 01:
If there is nothing in that claim that brings in the definition that the Congress as well as the USPTO put in some regulations, then it would not fall under the definition of a covered business method patent.

[00:59:22] Speaker 03:
One question on the regulation for technological invention.

[00:59:27] Speaker 03:
I mean I saw part of the regulation say that a condition to be a technological invention or not a technological invention and therefore institute one of these proceedings is to see whether the patentable advance in the claim is technological in nature somehow.

[00:59:46] Speaker 03:
And I was just wondering what

[00:59:49] Speaker 03:
Why is it reasonable that something that seems to be a merits-based final determination would be a basis for figuring out whether to institute the proceeding in the first place?

[01:00:01] Speaker 01:
So the technological invention aspect is an exception to the CBM proceeding.

[01:00:06] Speaker 01:
And the reason the board looks at that issue is because there are certain patents where, although they may have a claim that's directed to a covered business method itself,

[01:00:17] Speaker 01:
There's something else in that invention that I guess will lift it out of that arena and has a technological aspect to it, wherein there is something that they're using, whether it be

[01:00:31] Speaker 01:
a new type of software or a new type of routine or anything that is not within the norm of the technology in that area that will lift it out of the CBN definition.

[01:00:46] Speaker 03:
But as I understand it, this is a merits-based determination right from the very beginning.

[01:00:50] Speaker 01:
The final determination is a merits-based determination.

[01:00:53] Speaker 03:
But in terms of understanding the regulation for instituting one of these proceedings, it very much looks like

[01:01:00] Speaker 03:
a merits-based conclusion that there is or is not a technological, patentable advance over the prior art.

[01:01:09] Speaker 03:
Am I misreading the regulation?

[01:01:11] Speaker 01:
Well, the board is not making a 102 or 103 determination at that point.

[01:01:16] Speaker 01:
All the board is doing is looking at the claims themselves and determining if those claims

[01:01:23] Speaker 01:
bring forth some sort of technological idea or notion that would lift it from the CVM definition.

[01:01:30] Speaker 01:
So they're not making a merit-based determination based on 102 or 103 at that point.

[01:01:35] Speaker 03:
They're comparing it to the prior art though, right?

[01:01:38] Speaker 01:
They're comparing it to the prior art in the sense is there anything that's only generic to the claim, I mean generic in the sense that generic to the technology of the claim.

[01:01:48] Speaker 01:
In the claims that issue here, all the technology that was related to in the claims was generic in nature.

[01:01:54] Speaker 01:
And there was nothing that was new in the terms of the technology that was used.

[01:02:00] Speaker 02:
Anything you want to add in conclusion?

[01:02:02] Speaker 01:
No, that is all, Your Honor.

[01:02:04] Speaker 01:
I yield my claim.

[01:02:04] Speaker 01:
Thank you.

[01:02:13] Speaker 05:
Please support.

[01:02:15] Speaker 05:
I'm first going to address the issue of Ratsemore.

[01:02:19] Speaker 05:
There's two failures of proof that the petitioner has here.

[01:02:22] Speaker 05:
The first, as you heard during argument, was the issue of was there a roadmap that would lead an interested researcher ultimately to the destination where this paper may have been.

[01:02:32] Speaker 05:
And there is just simply no proof in the record.

[01:02:35] Speaker 05:
And this is the problem the board had.

[01:02:37] Speaker 05:
There's no proof in the record of how one could get to that paper.

[01:02:41] Speaker 05:
Whether it's by indexing through search engines, whether it's by following some path or series of links or anything, there's just no evidence at all.

[01:02:51] Speaker 05:
And this wasn't something that would have been difficult to do had there been this fact.

[01:02:54] Speaker 05:
Ms.

[01:02:54] Speaker 03:
Gillis was saying that the UMBC computer science department, a significant department doing research in this area and therefore one of ordinary skill in the art would be inclined to go digging through the computer science

[01:03:11] Speaker 03:
website in order to see what's going on and then ultimately find Ms.

[01:03:16] Speaker 03:
Ratzemore's page.

[01:03:17] Speaker 03:
What's your answer to that?

[01:03:18] Speaker 05:
I mean, how is that any different than, first off, how is that any different than saying that it would be enough for someone to go digging through some library somewhere to find a book that's on the shelf but has not been indexed or catalogued?

[01:03:33] Speaker 05:
You'd have to go through every single stack to find these books.

[01:03:37] Speaker 05:
In that situation, there's no public accessibility or availability there.

[01:03:41] Speaker 03:
Is there anything in the record that shows that when you're at the computer science department's website, there's a link from that website, the computer science department's website, to Ms.

[01:03:52] Speaker 03:
Ratsemore's publications page?

[01:03:56] Speaker 05:
During the relevant time, there's zero proof that there's any link at all to Dr. Ratsemore's personal web space.

[01:04:04] Speaker 05:
And it is only in her personal web space where this paper is eventually found.

[01:04:09] Speaker 05:
We know it's found today.

[01:04:10] Speaker 03:
So you'd have to know the specific URL address in order to get there.

[01:04:14] Speaker 03:
You wouldn't be able to get there through the computer science department's website.

[01:04:18] Speaker 05:
That's right.

[01:04:18] Speaker 05:
Based on the record today that was presented to the board, when you look at what there was at the relevant time, any relevant time for these patents,

[01:04:29] Speaker 05:
what would take someone from the main page of the computer science department all the way to eventually where the patent was ultimately found, there's no proof of that.

[01:04:42] Speaker 05:
Now, that would not have been a difficult thing to do.

[01:04:46] Speaker 05:
We raised this issue during the proceeding and petitioner has an expert who wrote the paper and is still a professor at this university.

[01:04:54] Speaker 05:
All he did was say in his original declaration,

[01:04:58] Speaker 05:
This was available somewhere on the website in 2003.

[01:05:04] Speaker 05:
He did not come back in his supplemental declaration and provide more proof, a full listing of proof, which he was in full control of to be able to do.

[01:05:12] Speaker 05:
This is how it works.

[01:05:13] Speaker 05:
This is what the website looked like.

[01:05:15] Speaker 05:
This is where people would have gone to.

[01:05:17] Speaker 05:
This is where someone would have been led to.

[01:05:20] Speaker 05:
This is how you would follow links.

[01:05:23] Speaker 05:
The simple conclusion from all this lack of proof is that

[01:05:27] Speaker 05:
trail didn't exist.

[01:05:29] Speaker 05:
So even if you assume someone would have been wanted to follow the trail, the trail didn't exist at the time.

[01:05:37] Speaker 05:
There's no proof of that.

[01:05:39] Speaker 05:
That's the issue with the trail.

[01:05:43] Speaker 05:
There is no proof.

[01:05:44] Speaker 05:
The second issue is, as I alluded to, time.

[01:05:49] Speaker 05:
I think Petitioner raised one issue of a bio page that had a link

[01:05:55] Speaker 05:
on Dr. Ratzemore's official bio page.

[01:06:00] Speaker 05:
There's no proof that that is how the page ever looked prior to 2004.

[01:06:05] Speaker 05:
That's something that Dr. Yoshi, their expert, could have testified to if it were true and that there was actually something available.

[01:06:14] Speaker 05:
But that's just not the case.

[01:06:15] Speaker 05:
There's no proof there.

[01:06:22] Speaker 05:
The panel noted Dr. Yoshi's testimony is really the only thing that suggests that this paper was available on this website at the time.

[01:06:32] Speaker 05:
And all he says is it was available.

[01:06:35] Speaker 05:
And that's even contradicted by the fact that the official website doesn't list this paper.

[01:06:44] Speaker 05:
The project page doesn't list this paper.

[01:06:46] Speaker 05:
The only person that lists this paper is Dr. Ratzemore at some point in time.

[01:06:50] Speaker 05:
And that's on a personal site.

[01:06:52] Speaker 03:
What about the research aid argument with respect to the Ratsamore article stating that this Ratsamore team was doing a lot further investigation and work in this very area and therefore one of ordinary skill would have been motivated to go looking around for what else Ratsamore was up to?

[01:07:12] Speaker 05:
You're talking first about a significant jump.

[01:07:15] Speaker 05:
of being able to follow a trail.

[01:07:17] Speaker 05:
And then second, there's no proof that the trail ultimately would lead you there.

[01:07:21] Speaker 05:
The Ratsymore paper in October of 2003 only lists the names of the authors and their university.

[01:07:29] Speaker 05:
It doesn't cite the reference, the Ratsymore reference that was at issue.

[01:07:36] Speaker 05:
It doesn't say it exists.

[01:07:38] Speaker 05:
It doesn't cite a website address.

[01:07:39] Speaker 05:
It doesn't cite a project address.

[01:07:42] Speaker 05:
There's nothing that would lead someone directly

[01:07:46] Speaker 05:
to the university's website, and then ultimately, how would they get to this publication?

[01:07:54] Speaker 05:
You just can't follow that path.

[01:07:55] Speaker 05:
That's different than the case law, where, for example, I forget the name of the one case, but there was an explicit reference to this paper that was at issue in the prior art.

[01:08:07] Speaker 05:
And one would have known that that paper existed and could have sought it out.

[01:08:11] Speaker 05:
Here, no one would know that this paper existed from the October

[01:08:16] Speaker 05:
2003 publication.

[01:08:20] Speaker 05:
Ultimately, this comes down to a judgment call by the board, the reason being that there are a lot of factual issues here that were weighed.

[01:08:28] Speaker 05:
It's not simply an area where the parties agree on what the relevant facts are, and we can work on the law based on that.

[01:08:38] Speaker 05:
Here, the petitioner was relying on

[01:08:43] Speaker 05:
Dr. Yoshi's testimony, we presented evidence that that was unreliable and incorrect, that the paper wasn't available on the official website.

[01:08:52] Speaker 05:
They presented hearsay evidence of particular dates at various times, 2003, 4, 5.

[01:08:59] Speaker 05:
They argued 2007.

[01:09:00] Speaker 05:
The reliability of those dates, what they mean, that was all a judgment call for the board to make.

[01:09:08] Speaker 02:
Those aren't... Could we treat the argument concerning the metadata evidence

[01:09:12] Speaker 05:
Very simply, Your Honor, metadata evidence is evidence of the creation of those documents, but not any evidence of dissemination or availability.

[01:09:21] Speaker 05:
The fact that the document was created on a computer doesn't indicate in any way that it could have been accessed by anyone outside of the computer at any particular address.

[01:09:30] Speaker 05:
All it was is it's created, not disseminated.

[01:09:34] Speaker 05:
Does that answer your question?

[01:09:37] Speaker 05:
And briefly, I'd like to get to the written description argument.

[01:09:42] Speaker 05:
The only evidence that the petitioner offered is that the words are not the same.

[01:09:49] Speaker 05:
That's a failure of proof.

[01:09:51] Speaker 05:
Our expert at 4735 in the 516 appendix offered testimony about how he would have viewed, how he looked at the specification, would have understood and come to these claims.

[01:10:05] Speaker 05:
Petitioner's expert could have contradicted that, could have rebutted that, but he was silent on

[01:10:11] Speaker 05:
how one actually construes these claims.

[01:10:13] Speaker 05:
All you're left with is the fact that the words are different.

[01:10:18] Speaker 05:
And that, ultimately, is a failure of proof.

[01:10:20] Speaker 05:
And this panel can reverse the decision.

[01:10:25] Speaker 05:
It doesn't have to remand it.

[01:10:27] Speaker 05:
Finally, on Paul, I'd like to point out that the campaign manager is the overall program.

[01:10:33] Speaker 05:
You've got to be very careful about that.

[01:10:34] Speaker 05:
When you refer to that, you're referring generally to the overall program.

[01:10:38] Speaker 05:
Element 108 is the campaign tool.

[01:10:40] Speaker 05:
That's the direct email tool with the demographic targeting.

[01:10:45] Speaker 05:
The refer friend tool is a separate tool.

[01:10:49] Speaker 05:
We don't want to confuse this overall campaign manager with the two distinct tools that are explicitly described in how they operate.

[01:10:58] Speaker 05:
If there are no other questions, thank you.

[01:11:00] Speaker 02:
Thank you very much.

[01:11:10] Speaker 00:
Want to start briefly with Ratsmore?

[01:11:12] Speaker 00:
Again, if you look at what's in the record at JA453, what Pat Nohner calls the official university ubiquity website, that website, if you click on people and you put in Ratsmore, you get this page, which is in the record at JA453.

[01:11:31] Speaker 00:
That page has the same URL link.

[01:11:35] Speaker 00:
that Dr. Yoshi refers to in his declaration.

[01:11:38] Speaker 03:
Did JA453 exist in 2003?

[01:11:41] Speaker 03:
This is an alumni page, right?

[01:11:45] Speaker 03:
She identifies her in her own.

[01:11:47] Speaker 03:
This is a website about ubiquity, which is the... Right, but I'm seeing here that says alumnus, graduation date May 2007.

[01:11:55] Speaker 03:
This seems to have been a particular page created after May 2007.

[01:12:01] Speaker 00:
No, sir.

[01:12:02] Speaker 00:
The Ubiquity is a section of the UMB website which organizes papers in this e-commerce, mobile commerce area.

[01:12:12] Speaker 00:
It identifies Dr. Rasmore as an alumnus because as of the present day, she is no longer with the university.

[01:12:19] Speaker 00:
But proof that this page would have looked virtually identical, particularly what is at the URL would have been virtually identical, that same URL link

[01:12:29] Speaker 00:
that you would get when you pull up the UMBC ubiquity site, click people, one click to Ratsmore, and you go to this URL, which is a hot link to her publications page.

[01:12:42] Speaker 00:
This same hot link is the hot link that Dr. Yoshi and his declaration said where

[01:12:48] Speaker 00:
the article or report was available for view?

[01:12:52] Speaker 00:
Yes, where he says in 2003 this report was available and we have in the record at JA 833 that that page was last updated in 2005.

[01:13:05] Speaker 00:
So this is not something that is being done in present day, this is all prior work.

[01:13:10] Speaker 00:
This is a better roadmap

[01:13:13] Speaker 03:
than what was in Cornell and Bruckenmeyer, because again... Where did Dr. Yoshi say that the page of JA4543 existed in 2003?

[01:13:25] Speaker 00:
What he says is that the report was available... The paper, right?

[01:13:30] Speaker 00:
The paper itself was publicly available.

[01:13:32] Speaker 00:
The technical report was available at this link.

[01:13:35] Speaker 00:
So what I'm saying to you is where this link and what is on that link

[01:13:39] Speaker 00:
was last updated in 2005.

[01:13:43] Speaker 00:
That suggests its existence prior to 2005.

[01:13:47] Speaker 03:
Right.

[01:13:48] Speaker 03:
The link that this webpage refers to existed in 2003.

[01:13:53] Speaker 03:
But I don't see any evidence in the record that anyone testified that this page with this particular address existed in 2003.

[01:14:00] Speaker 00:
What I'm saying is Dr. Yoshi testified that this link that is shown on this page existed in 2003.

[01:14:09] Speaker 00:
and that that link is where you could get the report.

[01:14:12] Speaker 00:
What we also have in the record is the metadata to show that the report was there.

[01:14:17] Speaker 00:
What we additionally have in the report was that that page at this link was last updated in 2005.

[01:14:23] Speaker 02:
Does the metadata show that the report was there or simply when it was created?

[01:14:27] Speaker 00:
It shows two things.

[01:14:29] Speaker 00:
We have metadata evidence that shows it was created in 2003 at one record site, and we have metadata evidence

[01:14:37] Speaker 00:
And that first metadata evidence is at site JA1991 and 1992, and then evidence that it was on the server at least as of October of 2004 at JA2028.

[01:14:51] Speaker 00:
Again, part of the environment that we're in is the ubiquity site is where these particular authors collected their work related to this subject matter.

[01:15:02] Speaker 00:
So if you go to UMBC and you type in Ratsmore,

[01:15:05] Speaker 00:
you might get this page.

[01:15:07] Speaker 00:
If you go to Ratsmore, you might get her ebiquity page.

[01:15:11] Speaker 00:
You're one click away from the technical report.

[01:15:14] Speaker 00:
At most, two.

[01:15:16] Speaker 00:
This is better than the road map in Cornell and Bruckermeier, where you had to have an article in hand online and then go to an office, a physical location.

[01:15:27] Speaker 00:
We're talking about two or three clicks.

[01:15:29] Speaker 02:
Was there any evidence of anyone actually having access to the article by following the link that you're citing?

[01:15:35] Speaker 00:
I think through the exercise of reasonable diligence, any of the number of 4,000 plus people where there is in the record that more than 4,000 downloads of the related Ratsamore article, where you could find that article on the same publication page where the technical report exists, it is certainly reasonable to conclude that a poster exercising reasonable diligence under voter verified

[01:16:02] Speaker 00:
would have found it and would have been motivated to find it, where the article says, we're going to build on this research, we're going to do more, we're getting government funding.

[01:16:09] Speaker 03:
What we have to decide is whether the board had substantial evidence to conclude the opposite, right?

[01:16:16] Speaker 00:
And I don't think they did, Your Honor.

[01:16:18] Speaker 00:
I think the substantial evidence is better than voter verified, better than Bayer, better than Cronin, better than Bruckl-Meier.

[01:16:24] Speaker 00:
Briefly on Paul, again, the patent owner is making the false argument that they're two completely separate systems.

[01:16:30] Speaker 00:
Again, Paul discloses how to store profiles, how to use the campaign manager to start a campaign, how to then tell the campaign manager to direct the campaign at specific individuals based on profile data that you've collected, and how to use the referral friend tool, which computer programmers know programs have tools and routines that can be called

[01:16:51] Speaker 00:
to do that.

[01:16:52] Speaker 00:
The board found that, and a postal would have understood it and been able to combine it.

[01:16:56] Speaker 00:
A written description.

[01:16:57] Speaker 02:
The skills, can you conclude pretty soon?

[01:17:00] Speaker 00:
Yes, sir.

[01:17:03] Speaker 03:
You're in your rebuttal on your cross appeal, right?

[01:17:08] Speaker 03:
Right now?

[01:17:10] Speaker 00:
Yes, you're probably right.

[01:17:11] Speaker 00:
So I probably need to, unless there's any further questions, we would ask that the panel reverse

[01:17:20] Speaker 00:
the board with respect to Ratsmore and find that Ratsmore either alone or with the cited references renders the challenge claims invalid.