[00:00:00] Speaker 00:
The next case is the same Helen D.E.

[00:00:17] Speaker 00:
technology versus Microsoft and Google.

[00:00:21] Speaker 00:
2015-18-28.

[00:00:22] Speaker 00:
And we're dealing with the same patent, similar 102-103 rejections, but with a different prior art.

[00:00:34] Speaker 00:
And that might be who you owe.

[00:00:37] Speaker 00:
So Mr. Angel, proceed.

[00:00:40] Speaker 00:
And of course, you don't need to repeat what's been said with respect to the patent.

[00:00:46] Speaker 00:
Proceed.

[00:00:48] Speaker 03:
Morning, your honors.

[00:00:49] Speaker 03:
May it please the court.

[00:00:50] Speaker 03:
I'd like to focus my comments this morning, my first set of comments, on the finding by the board that GAIO discloses demographically targeted advertising and our contention that there's not substantial evidence to support that finding.

[00:01:04] Speaker 03:
Claim 11 of the 314 patent describes a method of providing demographically targeted advertising to a computer user.

[00:01:11] Speaker 03:
Claim 11 also requires that the demographic information

[00:01:15] Speaker 03:
acquired by the method include information specifically provided by the user in response to a request for said demographic information.

[00:01:23] Speaker 03:
The 314 patent does not expressly describe, define demographic information, although it does define other terms.

[00:01:31] Speaker 03:
The board construed demographic information as collected characteristic information about a user.

[00:01:39] Speaker 04:
And you agreed with that construction?

[00:01:41] Speaker 03:
We are not disputing that construction.

[00:01:42] Speaker 03:
That's right, Your Honor.

[00:01:44] Speaker 03:
But we do dispute that there's substantial evidence supporting the finding that GAIO discloses demographic information.

[00:01:51] Speaker 03:
So it's undisputed that the term demographic information or any of its variants does not appear in the GAIO reference at all.

[00:01:58] Speaker 03:
Microsoft argued in its petition that the questionnaire of GAIO discloses the collection of demographic information.

[00:02:06] Speaker 03:
The board found that demographic information is disclosed both in the questionnaire and in the collection of certain computer user information

[00:02:14] Speaker 03:
that's later transferred to the server and used to supplement or further define a user profile.

[00:02:21] Speaker 03:
So the GAIO system includes a database that includes a set of subscriber data and subscriber statistics.

[00:02:29] Speaker 03:
The subscriber data includes identification information about the user that would include a password and perhaps other identifying information.

[00:02:38] Speaker 02:
What about the fact that it says that in addition to that, there's a personal profile that is used to target specific advertisements, and distinguishes that.

[00:02:48] Speaker 02:
It says that's something that's distinguished from the identification information.

[00:02:53] Speaker 03:
Yes, Judge Stoll, that's right.

[00:02:54] Speaker 03:
There's also a personal profile, and it's with the questionnaire that the personal profile is built.

[00:03:00] Speaker 02:
And that's the information that is used for the targeted advertising?

[00:03:04] Speaker 03:
Yes, along with supplementation of that personal profile based on the computer user information that's collected as part of the subscriber statistics.

[00:03:13] Speaker 02:
What do you think that is, if it's not demographic information?

[00:03:16] Speaker 03:
Well, it could be anything.

[00:03:17] Speaker 03:
So it would depend on what the- It's not identification information, right?

[00:03:21] Speaker 03:
It could be.

[00:03:22] Speaker 03:
It could be identification information.

[00:03:23] Speaker 02:
What about the fact that the reference describes those two as being separate things and uses different words to describe them?

[00:03:29] Speaker 03:
So it says that there's some identification information that's stored as part of the identification information in the subscriber data.

[00:03:37] Speaker 03:
But that doesn't necessarily exclude other information that might be collected through the questionnaire that could also be identifying of a user.

[00:03:44] Speaker 03:
So it does seem that there's specific identification information that's collected and stored as part of that identification information.

[00:03:51] Speaker 03:
But since we don't know what's in the questions, it's possible that maybe there's a question in there that does some identification.

[00:03:58] Speaker 02:
What about the fact that they

[00:04:00] Speaker 02:
background section of your own patent says that demographic information is used for targeted advertising.

[00:04:06] Speaker 02:
Isn't that an admission?

[00:04:08] Speaker 02:
And that it's often collected using questionnaires.

[00:04:11] Speaker 03:
No, I wouldn't call that an admission.

[00:04:13] Speaker 03:
It's a statement of reality.

[00:04:16] Speaker 02:
Statement of what is in the background of the invention?

[00:04:20] Speaker 03:
Yes, in the background of the 314 patent.

[00:04:22] Speaker 03:
It's undisputed that one way to collect demographic information is through the use of the questionnaire.

[00:04:27] Speaker 03:
But there's perhaps other ways to collect demographic information.

[00:04:30] Speaker 03:
And just because it can be collected with a questionnaire doesn't mean that it is.

[00:04:35] Speaker 03:
And anticipation requires that there be a disclosure in as much detail as is in the claim.

[00:04:40] Speaker 03:
And that's what's missing from GAIO.

[00:04:42] Speaker 03:
So you asked what questions could be asked that's not demographic information through the questionnaire.

[00:04:49] Speaker 03:
So an advertiser might want to know, when was the last time you saw a movie?

[00:04:53] Speaker 03:
What was the movie?

[00:04:54] Speaker 03:
When is the next time you're going on vacation?

[00:04:56] Speaker 03:
How long are you going on vacation?

[00:04:58] Speaker 02:
Why isn't that demographic information?

[00:05:00] Speaker 03:
Well, it's not demographic information because it's not durable in any way.

[00:05:05] Speaker 03:
It doesn't serve to define a user in any particular way.

[00:05:09] Speaker 02:
What if it shows that I like to take a lot of vacations?

[00:05:13] Speaker 03:
Well, in the aggregate, with other information, perhaps there's a way that eventually it could be, but I would say that

[00:05:21] Speaker 03:
If the definition of demographic information is taken to that sort of extreme, then anything is demographic information.

[00:05:30] Speaker 03:
And that can't be the case.

[00:05:32] Speaker 03:
There must be some information that's not.

[00:05:34] Speaker 03:
And questions can be asked through the questionnaire that do not seek demographic information.

[00:05:42] Speaker 04:
What about the internet usage history?

[00:05:44] Speaker 04:
Why isn't internet usage history

[00:05:48] Speaker 04:
as disclosing GAIO satisfying this demographic information limitation.

[00:05:53] Speaker 03:
So there's two reasons for that.

[00:05:54] Speaker 03:
The first is that where a user goes on the internet is simply that.

[00:05:58] Speaker 03:
It's where the user goes on the internet.

[00:06:00] Speaker 03:
It has nothing to do with demographics.

[00:06:03] Speaker 04:
But under the 314 pattern, computer usage information... Well, I guess as defined or construed by the board, we're talking about collected characteristic information about the user, right?

[00:06:14] Speaker 04:
So if

[00:06:16] Speaker 04:
I don't know.

[00:06:18] Speaker 04:
If I go on the internet and there's a clear pattern and I can't help myself, I keep going to ESPN.com over and over and over again.

[00:06:29] Speaker 04:
And now these magic machines around the network see that.

[00:06:36] Speaker 04:
And now they decide they're going to start feeding me banner ads that are related to sports somehow.

[00:06:46] Speaker 04:
Maybe I'm always looking at football, so then they start sending me things about football.

[00:06:52] Speaker 04:
I have a clearly defined trait there.

[00:06:57] Speaker 04:
And why isn't that collected characteristic information about me and what I browse?

[00:07:04] Speaker 03:
Judge Chan, the answer to that is that claim 11 distinguishes between demographic information and computer usage information repeatedly throughout the claim.

[00:07:13] Speaker 03:
There's demographic information that's

[00:07:16] Speaker 03:
that's acquired about the user.

[00:07:19] Speaker 03:
But then the computer usage information is separate.

[00:07:22] Speaker 03:
So in the third element of claim 11, it describes acquiring demographic information about the user, said demographic information, including information specifically provided by the user in response to a request for the demographic information.

[00:07:38] Speaker 03:
And then the software that's provided to the user in the next element.

[00:07:43] Speaker 04:
No, I agree.

[00:07:44] Speaker 04:
The claim talks about.

[00:07:46] Speaker 04:
computer usage information and then talks about demographic information.

[00:07:50] Speaker 04:
But I didn't quite see anything in the claim that necessarily cleaves the two apart and why one can't be perhaps a subcategory of the other.

[00:08:01] Speaker 03:
So the last element of claim 11 associates the computer usage information with the demographic information.

[00:08:08] Speaker 03:
And it wouldn't be possible for those two sets of information to be overlapping if they're going to be associated with one another.

[00:08:15] Speaker 03:
They must be separate in order for them to later be associated.

[00:08:19] Speaker 03:
So that's one of the reasons that they must be separate.

[00:08:22] Speaker 03:
But there is a definition for computer usage information.

[00:08:26] Speaker 03:
And it's separate from the, it does not describe demographic information in the specification.

[00:08:34] Speaker 04:
I guess what I'm trying to figure out is

[00:08:37] Speaker 04:
If we were to conclude that there's substantial evidence that internet usage information meets the claim construction, collected characteristic information of the user, then I think that's the end of the game.

[00:08:57] Speaker 03:
It would depend, Your Honor, because first of all, our view is that the questionnaire does not

[00:09:04] Speaker 03:
call for the collection of demographic information.

[00:09:07] Speaker 03:
If the court agrees with that, then the presence of the status of computer usage information as demographic information does not establish that all of the elements of the claim are met.

[00:09:22] Speaker 03:
So let me try to say that a little more clearly.

[00:09:24] Speaker 03:
What I mean by that is in the third element of claim 11,

[00:09:30] Speaker 03:
The element requires the acquisition of demographic information about the user, and that must include information specifically provided by the user in response to a request.

[00:09:42] Speaker 03:
So simple computer usage information is not provided by the user in response to a request.

[00:09:48] Speaker 03:
So if that's the only source of demographic information, then there's not a sufficient disclosure in the GAIO reference to invalidate.

[00:09:57] Speaker 04:
OK.

[00:09:57] Speaker 04:
I'll just repeat what I was thinking again.

[00:10:00] Speaker 04:
If, I mean, what is demographic information?

[00:10:05] Speaker 04:
We could have a debate about it, but we have a claim construction that has not been objected to.

[00:10:11] Speaker 04:
So now we have to filter our analysis through that claim construction.

[00:10:16] Speaker 04:
So it's almost like, what does demographic information mean?

[00:10:19] Speaker 04:
Who knows?

[00:10:20] Speaker 04:
But let's set that to the side, because now we're dealing with a claim construction.

[00:10:24] Speaker 04:
Selected characteristic information of the user is

[00:10:29] Speaker 04:
the browsing history of the user collected characteristic information of the user.

[00:10:33] Speaker 04:
I think that's what this case boils down to, at least with regard to this limitation.

[00:10:39] Speaker 04:
Would you agree with that?

[00:10:42] Speaker 03:
Not exactly, Your Honor.

[00:10:43] Speaker 03:
So I think that the individual websites that a user visits are not characteristic information about a user.

[00:10:50] Speaker 03:
And this is something that Mr. Goldstein discussed in his deposition when he was asked about whether or not

[00:10:57] Speaker 03:
computer usage information could be demographic, and he repeatedly said that no, it cannot.

[00:11:04] Speaker 03:
The definition that the board ascribed to demographic information that is characteristic of a user, it must mean something.

[00:11:13] Speaker 03:
Some definitions of characteristics from the Merriam-Webster dictionary is distinguishing trait, quality, or property.

[00:11:20] Speaker 02:
What about in your blue brief you talk about, for an example, that questionnaire could ask, what is somebody's favorite sports team?

[00:11:28] Speaker 02:
So you find out my favorite sports team is the Michigan State Spartans.

[00:11:32] Speaker 02:
And then you might say, well, is that collected characteristic information about me?

[00:11:40] Speaker 03:
I think it's an answer to a question.

[00:11:41] Speaker 03:
I wouldn't say it's a characteristic.

[00:11:43] Speaker 03:
It's not something that's enduring.

[00:11:45] Speaker 03:
So something that simply is, what did you eat for breakfast?

[00:11:49] Speaker 03:
Where did you go yesterday?

[00:11:50] Speaker 03:
These are not characteristics of people.

[00:11:52] Speaker 03:
They're simply data points.

[00:11:54] Speaker 02:
That's not characteristic information to provide targeting advertising?

[00:11:59] Speaker 03:
Well, there's two different questions there.

[00:12:00] Speaker 03:
So would it be useful to target advertising?

[00:12:03] Speaker 03:
I would say yes.

[00:12:04] Speaker 03:
Is it characteristic information?

[00:12:06] Speaker 03:
Is it demographic information?

[00:12:07] Speaker 03:
I would say no.

[00:12:08] Speaker 03:
So something can be useful to an advertiser, like where did you go yesterday?

[00:12:12] Speaker 03:
What was the last movie that you saw?

[00:12:14] Speaker 03:
What was the last book that you read?

[00:12:15] Speaker 03:
That might be useful from an advertising perspective, but I would not say that that's characteristic of a user or that it's demographic information in the ordinary sense.

[00:12:26] Speaker 00:
Mr. Range, would you want to say

[00:12:29] Speaker 00:
Rebuttal time, you are into it.

[00:12:31] Speaker 03:
I would.

[00:12:33] Speaker 00:
We will save it for you.

[00:12:34] Speaker 03:
Thank you.

[00:12:35] Speaker 00:
Mr. Cushing.

[00:12:45] Speaker 01:
May it please the court.

[00:12:47] Speaker 01:
You've presaged a number of the issues I wanted to address in our response.

[00:12:50] Speaker 01:
The first one was the observation that you made that the board's definition or construction of demographic information is very expansive.

[00:12:58] Speaker 01:
And that definition encompasses evidence which was demonstrated before the board that there is information in EO which satisfies that definition.

[00:13:07] Speaker 01:
The subscriber statistic updating process that was referenced was the subject of questions to their expert, Mr. Goldstein, who admitted this pattern of visiting a website would cleanly satisfy the meaning of the demographic information.

[00:13:22] Speaker 01:
And the thing to take away from that is

[00:13:24] Speaker 01:
There is a pattern of visiting which reveals a characteristic of the user which is not identifying the user.

[00:13:31] Speaker 01:
When we asked Mr. Goldstein that at his deposition, he freely admitted that was an example of demographic information, and that should be found at A1918, lines 5 through 23.

[00:13:46] Speaker 01:
Now, the other issue that was raised was whether the process that's being described in GEO of using a questionnaire to collect information satisfies a demographic information requirement.

[00:13:57] Speaker 01:
And here, there's substantial evidence that was before the board that demonstrated that's what is taught by GEO.

[00:14:04] Speaker 01:
The correct legal question when you're looking at anticipation is, what does the reference teach the person of skill in the art?

[00:14:09] Speaker 01:
And here, what the evidence demonstrated

[00:14:11] Speaker 01:
supported by substantial evidence was that that technique that was described in GEO of using a questionnaire to collect information and then to create a personal profile using that information was in fact collecting demographic information.

[00:14:24] Speaker 04:
Are we talking about the subscriber data?

[00:14:26] Speaker 01:
There's two features of GEO which were... Subscriber statistics subscriber data?

[00:14:31] Speaker 01:
Correct.

[00:14:32] Speaker 01:
So there's two features.

[00:14:33] Speaker 01:
One was the questionnaire process which is used initially to create the personal profile.

[00:14:38] Speaker 01:
And the second process was the updating of that personal profile with things like the web browsing history.

[00:14:44] Speaker 01:
And what that evidence demonstrated was that the personal profile is initially created and contains demographic information, and then additional demographic information is included into it.

[00:14:55] Speaker 04:
But doesn't the construction also require that the information not identify the user?

[00:15:02] Speaker 01:
Yes.

[00:15:03] Speaker 01:
And that was demonstrated to be

[00:15:05] Speaker 01:
Both features of that process were demonstrated by the evidence before the board.

[00:15:10] Speaker 01:
One thing that we'd like to flag is that the board had substantial evidence they relied on for both elements.

[00:15:15] Speaker 01:
One was in the process that's being depicted in the DO.

[00:15:19] Speaker 01:
That was recognized by our expert, Dr. Ho, as being a very common technique for collecting demographic information.

[00:15:26] Speaker 01:
In that process, and he recognized that as a very common technique,

[00:15:30] Speaker 01:
That's also reflected in their own patent, which says that perhaps the most common way of collecting demographic information is using that questionnaire technique.

[00:15:38] Speaker 04:
Did the board rely on this questionnaire from GEO to conclude that GEO meets this claim limitation?

[00:15:47] Speaker 01:
Yes, we believe the board relied on both the process depicting the use of the questionnaire and the subscriber statistics.

[00:15:54] Speaker 01:
Where did it say that?

[00:15:55] Speaker 01:
If you look at the board's decision at A14,

[00:15:59] Speaker 01:
It recognizes its states very simply.

[00:16:01] Speaker 01:
We agree with the petitioner after reciting the two features that we set out in our briefing.

[00:16:06] Speaker 01:
And you see one phase of that discussion focused on the EO process of using the questionnaire to collect the demographic information.

[00:16:17] Speaker 01:
The second aspect was the subscriber information you've been used to update the personal profile.

[00:16:23] Speaker 01:
And we believe that's demonstrated the board recognizes the evidence before it's satisfied

[00:16:28] Speaker 01:
the claim by either and both of those techniques shown in PO.

[00:16:33] Speaker 00:
Mr. Cushin, the motion to amend is also present in this case.

[00:16:38] Speaker 00:
We've seen real-time mention several times in the specification.

[00:16:43] Speaker 00:
So why wasn't the written description requirement met?

[00:16:47] Speaker 01:
Well, so there's two issues that we saw with the written description argument they made.

[00:16:52] Speaker 01:
The first one is that the claim language was not clear.

[00:16:54] Speaker 01:
What is real-time referring to?

[00:16:56] Speaker 01:
Is it referring to the actions at the client computer?

[00:16:59] Speaker 01:
Is it referring to the actions at the server?

[00:17:01] Speaker 01:
Is it referring to some combination of those two?

[00:17:03] Speaker 00:
In other words, the paragraph two issue.

[00:17:05] Speaker 01:
Correct.

[00:17:06] Speaker 00:
Indefiniteness.

[00:17:07] Speaker 01:
Well, there was an indefiniteness issue.

[00:17:09] Speaker 01:
And that's why the board requires the petitioners moving to amend to include a construction so they can avoid some of those problems.

[00:17:16] Speaker 01:
But here, when you look in what they argued in their briefs before the court,

[00:17:20] Speaker 01:
They point you to the abstract, and they also point you to a passage, which is in the original filing.

[00:17:27] Speaker 01:
This is at A1625.

[00:17:30] Speaker 01:
And what's being referenced in the latter point is the technique of using the real-time computer usage information to display which ad is going to pop up on the user's computer.

[00:17:39] Speaker 01:
And that's a very different concept from the idea of using real-time information that might be going back to the server to select different ads.

[00:17:47] Speaker 01:
That, in a nutshell, is the problem, is that there was confusion about what the real-time information being used to do.

[00:17:54] Speaker 01:
And when you looked in their pleadings and the motion to... Can you explain that point again?

[00:17:58] Speaker 01:
Sure.

[00:18:00] Speaker 01:
The confusion you're trying to create?

[00:18:02] Speaker 01:
Sure.

[00:18:02] Speaker 01:
I think the confusion is... I would submit the confusion is in how they presented their argument in that claim amendment.

[00:18:11] Speaker 01:
So in the patent, there are a couple different instances of real-time usage information, or use of real-time information.

[00:18:17] Speaker 01:
One is the user's actions on the computer are being tracked, and that determines what will pop up on their screen on the client computer as the ad, based on their actions.

[00:18:29] Speaker 01:
That's local to the computer.

[00:18:30] Speaker 01:
And if you look at 1625,

[00:18:34] Speaker 01:
You see these identifiers, as the quote from the passage they cite, these identifiers permit real-time, reactively targeted advertising so that the program can respond to user interaction with the computer to determine whether the input relates to a particular category of information, and if so, can select advertising related to that category of information.

[00:18:52] Speaker 04:
So you think that's all happening at the local client?

[00:18:55] Speaker 01:
Right.

[00:18:55] Speaker 01:
And that was the subject of testimony.

[00:18:58] Speaker 04:
And that there's some database at the local client?

[00:19:01] Speaker 01:
That's correct.

[00:19:02] Speaker 01:
There is a set of ads that are resident on the client that are being selected or presented based on user action.

[00:19:11] Speaker 01:
It's also things like whether the user is active and looking at the screen.

[00:19:16] Speaker 01:
But that is one instance of the use of real time, which doesn't align with the claim language they added into their claim, which is speaking of a different concept, maybe focused on the subscriber on the server action of selecting new ads.

[00:19:30] Speaker 01:
And again, this goes back.

[00:19:32] Speaker 01:
to the legitimate exercise of discretion by the board in looking at the amendment that was presented and finding that in the absence of a construction, in the absence of detail that mapped the description to the claim elements being added, and in the question that was raised about what real time is referring to, that there would be a question about whether that is enjoying written description support.

[00:19:55] Speaker 01:
And the board looked at all of that and decided correctly that there wasn't written description support for that claim amendment.

[00:20:02] Speaker 01:
a number of other issues.

[00:20:03] Speaker 01:
But again, when you're reviewing that action of the board and denying that motion to amend, you have to look at it from the perspective of whether the board exercises discretion correctly.

[00:20:15] Speaker 01:
And we believe that is the case here.

[00:20:18] Speaker 01:
And it properly denies the amendment.

[00:20:21] Speaker 04:
So what would a proper motion to amend look like?

[00:20:25] Speaker 01:
Well, I think a proper motion to amend in this instance would, first of all, explain what the meaning of the claim terms are that are being presented.

[00:20:32] Speaker 01:
And then there should be an explanation mapping pretty clearly for the board so they can determine whether that claim amendment is enjoying written descriptions supporting the specification.

[00:20:43] Speaker 01:
That, I think, in this instance, would require more than simply listing various citations in the patent specification, especially when it's not clear what the claim elements are that are being added into the claim.

[00:20:56] Speaker 04:
Going back to demographic information, the opposing council was making the point that computer usage information, as that term is used in the claim, can't possibly be the same thing or interchangeable with demographic information, because that's a different claim term used in the claim.

[00:21:15] Speaker 04:
And ultimately, in the final limitation, it talks about associating the computer usage information

[00:21:23] Speaker 04:
with the demographic information using the unique identifier.

[00:21:27] Speaker 04:
That is to say, associating x with y using z. So why would x equal y in a situation like that?

[00:21:38] Speaker 01:
Well, the first thing to appreciate is that the two buckets of information that are being referenced, the demographic information and the computer usage information, are very broad categories of information.

[00:21:48] Speaker 01:
They cover many, many different kinds of information.

[00:21:52] Speaker 01:
There's no definitional language in the patent that says computer usage information cannot also include or qualify as demographic information.

[00:22:00] Speaker 01:
There's no definition at all of demographic information in the patent.

[00:22:04] Speaker 04:
I'm just asking you to think through with me the final limitation of the claim.

[00:22:07] Speaker 01:
Sure.

[00:22:08] Speaker 01:
In that final limitation, you can imagine an application of their system using two different kinds of information.

[00:22:15] Speaker 01:
One would be an instance of computer usage information.

[00:22:18] Speaker 01:
And that would be correlated using a unique identifier to an instance of demographic information.

[00:22:24] Speaker 01:
There's no requirement that they be different or identical.

[00:22:27] Speaker 01:
You can more reasonably understand that claim term to be imagining that the two different types of information are, in fact, addressing different categories or different types of information.

[00:22:38] Speaker 04:
Well, how is GAIO, GEO, performing that final limitation?

[00:22:43] Speaker 04:
How is it associating internet usage history with internet usage history?

[00:22:49] Speaker 01:
So in the GEO system, the subscriber statistics are collected on an ongoing basis and sent to the server.

[00:22:56] Speaker 01:
Some of that information is being used, such as the web browsing history, to refine that personal profile.

[00:23:02] Speaker 01:
Other information is being stored and used in the process of reactive advertising.

[00:23:06] Speaker 01:
In that process, the GEO system is using a unique identifier, which is a collection of information sent from the user's computer to GEO's servers to identify that information that's coming over.

[00:23:19] Speaker 01:
When that comes into GEO, GEO uses the composite of these different types of information that have been collected and sent to the server and is associating that information.

[00:23:29] Speaker 01:
On the client as well, there's an application of using that information at the client side to associate the information that's coming back from the GEO server to determine which ads are being displayed on the user.

[00:23:41] Speaker 01:
And that's plainly using information that's connecting the two categories of information.

[00:23:46] Speaker 01:
But going back, if I could, to the question

[00:23:49] Speaker 01:
I think you correctly focused on the overlap question.

[00:23:53] Speaker 01:
I want to just flag that in the 314 specification, you can find examples of information falling into both categories.

[00:24:02] Speaker 01:
And I would direct your attention to A52 at column 3, lines 8 to 11.

[00:24:08] Speaker 01:
That gives you a number of examples of demographic information, one of which is timezones.

[00:24:15] Speaker 01:
You go down to the definition of computer usage information.

[00:24:18] Speaker 01:
That's just down on A52 at lines 37 to 41.

[00:24:22] Speaker 01:
And you see a reference to computer usage information as being, or including the time of the day or days of the week they use the computer.

[00:24:30] Speaker 01:
So you can see the information that is being used in GEO of this time zone information is landing in both categories as it's been defined in the patent and is construed in the board's construction.

[00:24:45] Speaker 01:
And that's an illustration of the breadth of both of those categories.

[00:24:48] Speaker 01:
You can find examples of information which is going to qualify under either.

[00:24:56] Speaker 01:
If you don't have any further questions, I'm happy to rest.

[00:24:58] Speaker 00:
Thank you, Mr. Pushin.

[00:25:01] Speaker 00:
Mr. Anshul has a little bit of other stuff.

[00:25:12] Speaker 03:
Thank you, Your Honors.

[00:25:14] Speaker 03:
I'd like to go back to a question that Judge Chen asked early on in Mr. Kushan's presentation.

[00:25:20] Speaker 03:
Judge Chen asked whether the board relied on the questionnaire in its finding that there was a disclosure of demographic information.

[00:25:27] Speaker 03:
Mr. Kushan said yes, but I'd suggest that the board did not rely on that.

[00:25:31] Speaker 03:
And this can be seen at page 814 of the appendix.

[00:25:35] Speaker 03:
The first full paragraph, the board says only that the personal profile is obtained by having the subscriber provide answers to the questionnaire.

[00:25:43] Speaker 03:
There's nothing there that says that the questionnaire describes demographic information or discloses demographic information.

[00:25:51] Speaker 03:
This is important because the questionnaire was the only thing presented in the petition as a disclosure of demographic information.

[00:25:58] Speaker 03:
The computer usage information did not show up in the petition as a disclosure of demographic information.

[00:26:04] Speaker 03:
That showed up only in the reply.

[00:26:06] Speaker 03:
And we point this out in our briefs.

[00:26:08] Speaker 02:
What about the section that he cited before that on page A13, where he says the petitioner responds and says that the profile questionnaire updates the user's personal profile as demographic information, and then they say, we agree.

[00:26:24] Speaker 02:
Why isn't that enough to show that the board had that view?

[00:26:29] Speaker 03:
I don't think that you can conclusively draw that determination.

[00:26:33] Speaker 03:
The paragraph that Your Honor's citing on page 813 is a recitation of the petitioner's position.

[00:26:40] Speaker 03:
And then the paragraph that follows it on page 814, they do say we agree with petitioner.

[00:26:45] Speaker 03:
It's not necessarily referring to anything specific.

[00:26:49] Speaker 03:
There's the one liner about the questionnaire.

[00:26:52] Speaker 03:
And then there's a detailed discussion

[00:26:55] Speaker 03:
the computer usage information being a disclosure of demographic information.

[00:27:01] Speaker 03:
So there is a one sentence statement about the questionnaire.

[00:27:05] Speaker 03:
It does not say that the questionnaire is a disclosure of demographic information.

[00:27:10] Speaker 03:
And then there's a discussion of the computer usage information being demographic information.

[00:27:14] Speaker 03:
So I think the correct answer to Judge Chen's question

[00:27:18] Speaker 03:
is no, the board did not rely on that.

[00:27:20] Speaker 03:
And that is the only thing that was in the petition as a disclosure of demographic information in GEO or the GAIO reference.

[00:27:28] Speaker 02:
So in looking for substantial evidence to support the board's holding in this case, you would say we can't look beyond just the user profile information?

[00:27:41] Speaker 02:
I might be using the wrong word.

[00:27:42] Speaker 03:
The questionnaire, Your Honor?

[00:27:44] Speaker 02:
That we can't look at the questionnaire in your view.

[00:27:47] Speaker 03:
Well, I would say that what was in the petition was the contention that the questionnaire was a disclosure of demographic information.

[00:27:55] Speaker 03:
So that's what's really an issue.

[00:27:58] Speaker 03:
And no, you cannot look beyond that because that was what was in the petition.

[00:28:01] Speaker 03:
And as this Court has recently said, it's important that all bases for invalidity be presented in the petition and not in a reply brief.

[00:28:10] Speaker 03:
And the Board did not make a specific finding that the questionnaire does disclose demographic information.

[00:28:16] Speaker 03:
But even if they did make that finding, we would say that that finding is not supported by substantial evidence.

[00:28:23] Speaker 03:
The paragraphs that Microsoft has cited from Dr. Ho's report, there's about seven of them.

[00:28:29] Speaker 03:
And they're the only ones where it's cited for evidence in support of a finding that the questionnaire is a disclosure of demographic information.

[00:28:40] Speaker 03:
None of those paragraphs

[00:28:43] Speaker 03:
demonstrate that the questionnaire does, in fact, as opposed to could be a disclosure of demographic information or a way to collect demographic information.

[00:28:53] Speaker 03:
Dr. Ho said only that it could at best.

[00:28:57] Speaker 00:
Thank you, Mr. Angel.

[00:28:58] Speaker 00:
The case is submitted.