[00:00:02] Speaker 00:
Before we start our regular proceedings this morning, I'm going to turn it over to Judge Clevenger.

[00:00:07] Speaker 04:
Yes.

[00:00:09] Speaker 04:
This morning, before we hear the oral arguments, we have an important matter of business to take care of, important to the court and important as well to the individuals involved.

[00:00:21] Speaker 04:
I believe, if I'm not mistaken, that we have an individual who would like to apply for membership in the bar of the court.

[00:00:28] Speaker 04:
And I believe Judge Prost would like to proceed now with a motion to that effect.

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

[00:00:37] Speaker 00:
Please stand.

[00:00:38] Speaker 00:
Thank you.

[00:00:39] Speaker 00:
I move the admission of Daniel Severin Sternberg, who is a member of the bar and is in good standing with the highest court of Massachusetts and New York.

[00:00:47] Speaker 00:
I know of knowledge of his credentials and am satisfied that he possesses the necessary qualifications.

[00:00:54] Speaker 00:
As I've said before, these are bittersweet times for us

[00:00:58] Speaker 00:
on the bench because we've had the pleasure of dealing with terrific clerks like Dan for a year or a year and a half.

[00:01:06] Speaker 00:
And then it's so sad because they leave us.

[00:01:10] Speaker 00:
But we've had a great run, Dan.

[00:01:12] Speaker 00:
I've appreciated all your efforts.

[00:01:14] Speaker 00:
I know you'll have a lot of success in your professional and private life.

[00:01:18] Speaker 00:
And we wish you well.

[00:01:20] Speaker 00:
I move the admission.

[00:01:25] Speaker 04:
Thank you.

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

[00:01:28] Speaker 02:
Please stand.

[00:01:46] Speaker 00:
Congratulations.

[00:01:51] Speaker 00:
Thank you.

[00:01:52] Speaker 00:
Thank you, Colonel.

[00:01:54] Speaker 00:
First case this morning is 151322 Bose Corporation versus STI Technologies.

[00:02:01] Speaker 00:
Mr. Hebert, please, whenever you're ready.

[00:02:08] Speaker 01:
Good morning.

[00:02:09] Speaker 01:
May it please the court?

[00:02:11] Speaker 01:
The two Bose patents at issue here are directed to a sound reproduction device that connects to a computer where the sound reproduction device and the computer send signals back and forth to each other.

[00:02:24] Speaker 01:
And the claim construction issue concerns, as with the briefs, I'm going to direct my comments to the 6A2 patent, primarily.

[00:02:32] Speaker 01:
So the claim construction issue relates to claim 25, which says that the audio system of claim 1, it's a dependent claim, wherein the sound reproduction system is configured to respond to signals received from the computer.

[00:02:48] Speaker 01:
So configured to respond is the disputed phrase.

[00:02:52] Speaker 01:
proposed that configured to respond referred to configured to provide an answer or reply in response to the computer and not simply take an action as SDI argued and the board found.

[00:03:08] Speaker 01:
The case is actually very much like, pretty much in all fours, with the PPC broadband case that came out in February, which dealt with a very similar issue, multiple competing dictionary definitions,

[00:03:21] Speaker 00:
But the board is allowed to use the broadest reasonable interpretation.

[00:03:27] Speaker 01:
Indeed, absolutely.

[00:03:28] Speaker 00:
And there are two dictionary definitions.

[00:03:30] Speaker 00:
Why is their selection of one of those definitions unreasonable?

[00:03:35] Speaker 01:
Because the specification, just like in PPC broadband, where there were also two dictionary definitions that could have applied.

[00:03:48] Speaker 01:
And just like in PPC broadband, where

[00:03:51] Speaker 01:
The term that was disputed was used in the specification only in connection with one of those definitions.

[00:03:58] Speaker 01:
Here, too, the term in the specification, respond, is used only in connection with the definition that Bose proposed, say something in return, make an answer, which in shorthand is... That's a question of how one of ordinary skill and error would read the specification, right?

[00:04:17] Speaker 04:
And there's a disagreement there.

[00:04:19] Speaker 04:
So you contend that the specification is just absolutely clear that the proper interpretation for configured to respond has to be to provide an answer or reply.

[00:04:30] Speaker 04:
The other side, and the board says, no, no, no, we read that differently.

[00:04:34] Speaker 01:
So the board is looking at the broadest possible dictionary definition that they can find, which is the same approach that was applied in TDPs.

[00:04:41] Speaker 04:
And you're proposing a narrower definition than the one the board applies.

[00:04:45] Speaker 01:
We're proposing the definition that directly applies to the specification the way it's term is used.

[00:04:50] Speaker 04:
But your definition is narrower.

[00:04:53] Speaker 01:
Pardon me?

[00:04:53] Speaker 01:
Your definition is narrower.

[00:04:55] Speaker 01:
It's the direct definition that is narrower than the board selected that applies directly to the use of the term in the specification, both in connection with the term as it's described in column one and column two.

[00:05:08] Speaker 01:
We quote that.

[00:05:09] Speaker 04:
And also, the examples that are given... All this matters, because if you're right, then ALTEC is off the table.

[00:05:15] Speaker 04:
That's correct.

[00:05:16] Speaker 01:
That's correct.

[00:05:16] Speaker 01:
There's no dispute on that.

[00:05:19] Speaker 01:
So, as I say, it's just like PPC broadband.

[00:05:23] Speaker 03:
In PPC broadband, the issue had to do with what... Councilor, let's suppose that we find that both implications are reasonable.

[00:05:35] Speaker 03:
Under BRI, don't we have to go with the broadest interpretation?

[00:05:51] Speaker 01:
So PPC broadband deals with this, and it says that simply selecting the broadest definition, it does not necessarily result in the broadest reasonable definition in light of the specification.

[00:06:04] Speaker 03:
Here my scenario is that they're both reasonable.

[00:06:10] Speaker 03:
And I think this is a close call.

[00:06:14] Speaker 03:
And it seems to me that both of these interpretations are reasonable.

[00:06:19] Speaker 03:
And yet we do have to honor or apply the broadest reasonable interpretation, correct?

[00:06:26] Speaker 01:
The broadest reasonable interpretation consistent with the specification like in PPC broadband.

[00:06:32] Speaker 01:
Advanced fiber technologies, O2 micro, and SUCO service.

[00:06:37] Speaker 00:
But that's not all.

[00:06:38] Speaker 00:
I mean, the board didn't say, I'm going to take the broadest interpretation.

[00:06:42] Speaker 00:
Who cares what the specification said?

[00:06:44] Speaker 00:
The board analyzed the specification and analyzed the paragraphs, the passages that you relied on.

[00:06:50] Speaker 00:
And it concludes that the portions that we're relying on don't require that RESPOND be construed nearly.

[00:07:01] Speaker 01:
So why are they wrong?

[00:07:03] Speaker 01:
What they did is they looked at the one place.

[00:07:06] Speaker 01:
There's two usages of the term respond bridging columns one and two.

[00:07:11] Speaker 01:
That's where the term, only place the term is used in the specification.

[00:07:14] Speaker 01:
And that's used the way we say it's used.

[00:07:18] Speaker 01:
And they ignored that because they said it was going in the wrong direction.

[00:07:22] Speaker 01:
It wasn't the right component responding to the other component, as in the claim.

[00:07:27] Speaker 01:
But it is the only use of the term respond that's in the specification.

[00:07:31] Speaker 04:
But beyond this.

[00:07:37] Speaker 01:
So the context has to do with one component sending a response to the other component.

[00:07:44] Speaker 01:
So if A responds to B, that's a usage and an illustration of the usage of the term respond, and it doesn't matter.

[00:07:52] Speaker 04:
What you're saying, what the other side is saying, is you're saying that the specification is just clear as day, and the other side says clear as mud.

[00:08:00] Speaker 04:
And so there's an unlikely case that you've cited over and over again where I don't recall any real disagreement as to what the specification was teaching.

[00:08:10] Speaker 04:
Here there seems to be some room for doubt as to whether your read of the specification is correct as opposed to your opponent's.

[00:08:19] Speaker 04:
So in a situation like that, I don't think you have quite such a

[00:08:26] Speaker 04:
firm grasp back to the precedent you cite in your favor.

[00:08:31] Speaker 01:
To the extent that the court may think there's room for doubt between those two constructions, it's answered by claim differentiation.

[00:08:37] Speaker 04:
When we look at claim one and what claim one requires... Well, there was an explanation on that side as well.

[00:08:43] Speaker 04:
It was not a clear, slammed-down argument in your favor.

[00:08:47] Speaker 01:
Well, actually, I think what SDI does in its brief is they engage in a little bit of misdirection

[00:08:54] Speaker 01:
because they don't really have an answer to the claim differentiation requirement.

[00:08:57] Speaker 01:
Claim one, as it is instructed, is configured, includes components which are configured to respond under their construction, namely take an action in response to the signals.

[00:09:11] Speaker 01:
It includes signal processing circuitry.

[00:09:14] Speaker 01:
It includes a speaker.

[00:09:15] Speaker 01:
These are the very actions that they point to in Alltech Lansing as saying, well, Alltech Lansing meets the claim because it takes an action.

[00:09:24] Speaker 01:
But claim one has the structure that does the very same thing.

[00:09:28] Speaker 01:
And so claim 25 has to be narrower than claim one.

[00:09:33] Speaker 00:
Well, the board goes through and analyzes the arguments and concludes that claim differentiation does not provide a slam dunk for you.

[00:09:43] Speaker 00:
And then it points out, which is unassailable, right, that claim differentiation, quote, is not a rigid rule, but rather

[00:09:50] Speaker 00:
is one of several claim construction tools.

[00:09:52] Speaker 00:
So we've had numerous cases in which we've rejected the claim differentiation.

[00:09:57] Speaker 00:
Will Trump, therefore, the conclusions we've considered?

[00:10:00] Speaker 01:
In those cases, there's a reason for doing that.

[00:10:02] Speaker 01:
So the claim differentiation establishes a presumption.

[00:10:07] Speaker 01:
It's not a hard and fast rule, I agree.

[00:10:09] Speaker 01:
But it establishes a presumption that the dependent claim has to be different in scope and narrower than the independent claim.

[00:10:15] Speaker 01:
And the cases that reject that typically have something in the file history where it's rebutting the presumption or some other reason for doing it.

[00:10:25] Speaker 01:
And none of that is here.

[00:10:26] Speaker 01:
There's no evidence of that here.

[00:10:27] Speaker 00:
Really?

[00:10:27] Speaker 00:
There aren't cases where we just say, well, our analysis of the other factors, including how we read the spec and so on, is sufficient to trump the doctrine of claim?

[00:10:38] Speaker 01:
I think those cases generally, I can't say for everyone, but I think those cases generally point to some other evidence

[00:10:45] Speaker 01:
like the file history, or that there are other elements in the dependent claim in addition to the one.

[00:10:51] Speaker 01:
So it's not a clear case.

[00:10:56] Speaker 04:
So helping out a little bit.

[00:10:59] Speaker 04:
We're talking about an issue of learning something from the spec in terms of that for claim construction as well now, claim differentiation.

[00:11:09] Speaker 04:
What standard of review are we applying to those sub-issues?

[00:11:14] Speaker 01:
Denovo.

[00:11:15] Speaker 01:
This is claim destruction.

[00:11:16] Speaker 04:
And that's true with the claim differentiation as well?

[00:11:21] Speaker 01:
I believe so, yes.

[00:11:22] Speaker 04:
As part of claim control?

[00:11:23] Speaker 01:
Yep.

[00:11:27] Speaker 01:
If you have the time, I'd like to move to the evidentiary issues.

[00:11:31] Speaker 01:
The major problem here with the evidentiary issues is that the board disregarded its role as a board which reviews the arguments of the parties and instead

[00:11:43] Speaker 01:
stepped in and acted as an advocate for SDI.

[00:11:47] Speaker 01:
And the recent case of in-ray magnum tools talks about this, talks about the limited role, and that's... We're talking about Ermon now?

[00:11:55] Speaker 04:
Pardon me?

[00:11:56] Speaker 04:
We're talking about the Ermon reference now?

[00:11:57] Speaker 04:
Is that what we're talking about?

[00:11:58] Speaker 01:
We're talking about the evidentiary, yeah, Iron Magnum.

[00:12:00] Speaker 04:
We're talking about the evidentiary issue.

[00:12:02] Speaker 01:
This is the, yeah, hearsay.

[00:12:05] Speaker 01:
Hearsay and authentication, right.

[00:12:07] Speaker 01:
And so in-ray magnum tools, A29, F3, 1364,

[00:12:11] Speaker 01:
It's a relatively recent case.

[00:12:13] Speaker 04:
And what is it that IRMAN teaches that you're trying to get away from?

[00:12:17] Speaker 04:
Why do you want IRMAN out?

[00:12:19] Speaker 01:
So IRMAN is one of the, so it's a three-element combination.

[00:12:22] Speaker 04:
IRMAN, well, there's a remote in ALTEC, right?

[00:12:28] Speaker 01:
There's a remote in ALTEC, right.

[00:12:29] Speaker 04:
So you don't need IRMAN for that.

[00:12:30] Speaker 01:
There's no remote in IRMAN, right.

[00:12:32] Speaker 04:
So what do you need IRMAN for?

[00:12:33] Speaker 04:
What's IRMAN doing in the 103 mix?

[00:12:38] Speaker 01:
So there's two arguments here.

[00:12:40] Speaker 01:
One is the evidentiary argument that it never should have come in on the evidence that was presented because of it.

[00:12:46] Speaker 04:
Well, I'm turning to that.

[00:12:47] Speaker 04:
If it's not necessary, then it's harmless error.

[00:12:51] Speaker 04:
What is it about IRMAM that you need to get rid of?

[00:12:55] Speaker 04:
Why do you need to get rid of it?

[00:12:57] Speaker 01:
To?

[00:12:57] Speaker 04:
103 analysis.

[00:12:59] Speaker 01:
Because it's not admissible art as part of the combination.

[00:13:03] Speaker 04:
You need it in the combination.

[00:13:06] Speaker 01:
They need it for the combination.

[00:13:07] Speaker 04:
Because why?

[00:13:08] Speaker 01:
They have no combination.

[00:13:10] Speaker 01:
They have no argument to make the combination without these two.

[00:13:14] Speaker 04:
What I'm trying to get at is, what is Ironman contributing in the combination?

[00:13:19] Speaker 04:
I mean, Altech seems to me that it's got almost everything in the invention right there in Altech.

[00:13:25] Speaker 04:
Right?

[00:13:27] Speaker 04:
You got a computer, you got speakers, you got communication between the two, and you've got a clicker doing the job.

[00:13:35] Speaker 01:
OK, so what Ironman adds,

[00:13:37] Speaker 01:
is an IR receiver that talks to the computer and sends control signals from the IR receiver to the computer to control functions on the computer.

[00:13:45] Speaker 01:
And what they want to do with their combination is move the IR receiver to the ALTEC Lansing speaker and have the ALTEC Lansing speaker send control signals to the computer.

[00:13:56] Speaker 01:
And that's not in the ALTEC Lansing reference.

[00:13:59] Speaker 04:
So what they do is- That's the infrared, the IR.

[00:14:02] Speaker 04:
OK.

[00:14:02] Speaker 01:
I got the picture.

[00:14:03] Speaker 04:
Pardon me?

[00:14:03] Speaker 04:
It's the infrared.

[00:14:05] Speaker 01:
Yeah, and control, and the part of these, the infirmary receiver, and controlling the computer.

[00:14:09] Speaker 01:
So that's what they're looking for.

[00:14:11] Speaker 01:
But in terms of the evidentiary issues, we had a hearsay argument.

[00:14:16] Speaker 01:
Bose actually, I'm sorry, SDI, disclaimed that they were relying on the truth of the matter asserted.

[00:14:23] Speaker 01:
So the sequence, we have objections to evidence.

[00:14:26] Speaker 01:
There's a deadline for that.

[00:14:28] Speaker 01:
We made objections to IRMAN on hearsay and authentication grounds.

[00:14:33] Speaker 01:
We filed a motion to exclude.

[00:14:35] Speaker 01:
SDI responded to the motion to exclude.

[00:14:38] Speaker 01:
And what they said, and this is in both IPRs, we have four related proceedings here.

[00:14:43] Speaker 01:
But in both sets of IPRs, they said the exact same thing.

[00:14:45] Speaker 01:
They said, because exhibit 1010, which is IR man, is offered for what it says, not the truth of what it says, it is not hearsay.

[00:14:55] Speaker 01:
And they disclaimed relying on the truth of IR man because they didn't think they needed the date.

[00:15:02] Speaker 01:
And they later realized, and you can see this from their brief, when it comes time to file their brief in this court, they realize that they have a hearsay problem.

[00:15:11] Speaker 01:
And they come up with brand new arguments never raised before, not in the record, about the residual exception and about automatic machine-generated time states.

[00:15:20] Speaker 04:
Talk a little bit about the specific reference that you're talking about here.

[00:15:25] Speaker 04:
And what is it?

[00:15:27] Speaker 04:
You say it's not offered to prove the truth of what's in it.

[00:15:31] Speaker 04:
But it is.

[00:15:33] Speaker 01:
They have to have the date, otherwise it's not prior.

[00:15:36] Speaker 00:
What about the exceptions to rule 807?

[00:15:40] Speaker 01:
So the residual exception of 807 was never raised by SDI once at all in the proceeding.

[00:15:48] Speaker 01:
The residual exception, I mentioned that the board's acting as an advocate for SDI.

[00:15:54] Speaker 01:
They raised this and they briefed it themselves in two and a half pages of their final written decision

[00:15:59] Speaker 04:
In the second.

[00:16:00] Speaker 04:
What's wrong with the board saying themselves there may be a problem here with this particular piece of evidence?

[00:16:07] Speaker 04:
I mean, this is not a US district court.

[00:16:09] Speaker 04:
This is an administrative agency.

[00:16:11] Speaker 04:
And the board says there may be a problem with this particular piece of information.

[00:16:15] Speaker 04:
And there's an escape hatch here.

[00:16:18] Speaker 04:
So the law recognizes a way in which if we satisfy ourselves, we can do it.

[00:16:22] Speaker 04:
It wasn't as if you were Shanghai.

[00:16:27] Speaker 04:
You never got a chance to.

[00:16:29] Speaker 01:
So one of the requirements of 807 and 807B is reasonable advanced notice of what they're going to argue, who's going to argue it, how they're going to apply it.

[00:16:41] Speaker 01:
That was never given.

[00:16:42] Speaker 04:
Did you petition for re-hearing on this ground?

[00:16:44] Speaker 04:
No.

[00:16:44] Speaker 01:
Why not?

[00:16:45] Speaker 04:
There's no requirement.

[00:16:46] Speaker 01:
So, in remand and addressing.

[00:16:48] Speaker 04:
The argument at the board did you a classic no-no.

[00:16:52] Speaker 04:
Blocked you out, didn't give you an opportunity to participate.

[00:16:56] Speaker 04:
hopped up in the middle of the night with a strange ruling, for the exception that's hardly ever applied, and stuck it down your throat.

[00:17:02] Speaker 04:
And you swallowed it and digested it.

[00:17:04] Speaker 01:
No, we appealed to this court.

[00:17:06] Speaker 01:
And there's two reasons.

[00:17:07] Speaker 04:
No, no, why didn't you appeal to this court?

[00:17:10] Speaker 04:
Because there was a mistake.

[00:17:12] Speaker 04:
They made the mistake.

[00:17:13] Speaker 04:
Why didn't you petition to them?

[00:17:15] Speaker 01:
There's two reasons.

[00:17:16] Speaker 01:
If you look at the rule on rehearing, it doesn't fall within it.

[00:17:21] Speaker 01:
The rule for rehearing requires that you point to where you previously raised the alleged error in the prior record.

[00:17:29] Speaker 01:
and why it was overlooked.

[00:17:30] Speaker 01:
That's the rehearing rule in the PTAB.

[00:17:32] Speaker 04:
I mean, you're saying to me that there's no recourse at the PTO in a situation where the board hanghives you, brings up something brand new, never gave you a chance to comment on it, so there's no tracks of the snow, right?

[00:17:45] Speaker 04:
So you're barred from filing a petition for rehearing?

[00:17:48] Speaker 01:
So the rehearing rule limits the issue.

[00:17:50] Speaker 04:
I mean, would you be making a constitutional argument, wouldn't you?

[00:17:53] Speaker 04:
A due process argument, somebody did that to you?

[00:17:55] Speaker 01:
It's, in effect, a due process issue.

[00:17:58] Speaker 01:
And that's what we've argued.

[00:18:00] Speaker 01:
But also, Henry Magnum says that there's no obligation to preserve your appeal issues to file a petition for rehearing in the first place.

[00:18:08] Speaker 01:
The error here doesn't fit with it.

[00:18:11] Speaker 04:
It seemed to me when you're dealing with an abusive issue where it's on appeal, abusive discretion, which is what this issue is, that discretion would certainly suggest that a prudent counsel would go to the party who zapped them and said, hey, you shouldn't have done this to me.

[00:18:26] Speaker 04:
He never gave me a chance even to inform you.

[00:18:30] Speaker 01:
So what we did actually is we actually tried to do that after the first set of IPRs.

[00:18:40] Speaker 01:
So in its final written decision in the first set of IPRs, the board got new evidence.

[00:18:46] Speaker 01:
They went to the Internet Archive.

[00:18:48] Speaker 01:
They got a blank Internet Archive standard affidavit.

[00:18:53] Speaker 01:
And they marked it as a new exhibit.

[00:18:55] Speaker 01:
I think it's exhibit 3004.

[00:18:57] Speaker 01:
Never introduced by any party, never raised by them.

[00:18:59] Speaker 01:
And we filed objections to that.

[00:19:03] Speaker 01:
We filed objections, and we filed, I think, a motion to exclude that.

[00:19:08] Speaker 01:
And those are in the appendix, but they were actually expunged by the board from the proceeding.

[00:19:15] Speaker 04:
Thank you for the motion.

[00:19:18] Speaker 04:
We filed objections.

[00:19:20] Speaker 04:
You think you did something, and then you did not go look me in and do it.

[00:19:23] Speaker 00:
I know that we filed them.

[00:19:24] Speaker 00:
You just said they expunged.

[00:19:26] Speaker 00:
They expunged what and why?

[00:19:28] Speaker 01:
So we filed objections to the new piece of evidence that the board came up with on its own, and we got an order expunging our objections.

[00:19:40] Speaker 01:
So that's all in your head.

[00:19:41] Speaker 03:
Expunging your objections or denying your objections?

[00:19:44] Speaker 01:
No, expunged.

[00:19:45] Speaker 01:
Expunged.

[00:19:45] Speaker 01:
Expunged.

[00:19:46] Speaker 01:
Not denied.

[00:19:47] Speaker 01:
Not a ruling on it.

[00:19:48] Speaker 01:
expunging as not being within the rules of the file.

[00:19:53] Speaker 04:
Is Exhibit 3004 in the record?

[00:19:57] Speaker 01:
Yeah, it is.

[00:19:58] Speaker 04:
Like where, please?

[00:20:02] Speaker 04:
And the so-called order expunging the objection, cite for that, please.

[00:20:12] Speaker 01:
So Exhibit 3004 is A2268.

[00:20:14] Speaker 01:
2268?

[00:20:18] Speaker 01:
Yeah.

[00:20:28] Speaker 01:
Our objection to that is 1425.

[00:20:32] Speaker 01:
And I don't know if we have the document for the order expunging it.

[00:21:18] Speaker 01:
It is yeah, I'm a 37 a 37 is the order.

[00:21:22] Speaker 01:
It's called order conduct of the proceeding a 37 a 38 37 through 39 I See I'm well over Mr.. Lowry

[00:21:47] Speaker 02:
Thank you, Your Honor.

[00:21:47] Speaker 02:
May I please support Matt Lowry of Foley & Lardner for the appellee SDI.

[00:21:52] Speaker 02:
I thought I'd just start really quick with an update on the related cases, because a little bit changed since the briefs were filed.

[00:21:59] Speaker 02:
The parent to the patents in suit here was the subject of litigation.

[00:22:03] Speaker 02:
A court granted summary judgment of no infringement in an appeal heard by Judge Clevenger.

[00:22:10] Speaker 02:
That non-impringement was affirmed for 143 of 144 products.

[00:22:14] Speaker 02:
That case stayed pending an inter-parties re-examination.

[00:22:18] Speaker 02:
In the re-examination, all of the claims were found invalid.

[00:22:21] Speaker 02:
Bose appealed to this court, and that was the state of that at the time of the briefing.

[00:22:25] Speaker 02:
Since that time, Bose withdrew its appeal in the hopes, I think, of filing a reissue and merging some procedural stuff.

[00:22:32] Speaker 02:
But the long and the short is the certificate has issued all the claims that have been found invalid for the parent application.

[00:22:38] Speaker 02:
And then the underlying case dismissed with prejudice.

[00:22:43] Speaker 00:
OK, why don't you move on to why don't you start where your friend left off, which is what the procedural posture is and what went down with respect to this exception.

[00:22:52] Speaker 02:
OK, so in terms of with the evidentiary issue, Your Honor.

[00:22:55] Speaker 02:
Yeah, so what actually happened here is Bose did not actually request reconsideration or rehearing.

[00:23:02] Speaker 02:
They filed a notice of objections, which was procedurally out of order.

[00:23:06] Speaker 02:
And so the board issued a decision saying, you can't just file something like that.

[00:23:10] Speaker 02:
You need to request leave.

[00:23:11] Speaker 02:
And you did not.

[00:23:13] Speaker 02:
And that was what the board did.

[00:23:15] Speaker 02:
But there was no request for a rehearing, no request to reopen.

[00:23:18] Speaker 00:
Yeah, but what happened here?

[00:23:19] Speaker 00:
I mean, the board on its own came up with this evidence on its own?

[00:23:25] Speaker 02:
So the issue, if I may step back, Your Honor, is, first of all, authentication.

[00:23:32] Speaker 02:
Is this what it purports to be?

[00:23:34] Speaker 02:
a record of the Wayback Machine.

[00:23:36] Speaker 02:
And there's no question that it is, in fact, a record of the Wayback Machine, because the board separately went and confirmed it.

[00:23:42] Speaker 02:
It also found distinctive evidence and whatnot.

[00:23:45] Speaker 02:
So it found authentication.

[00:23:47] Speaker 00:
Then the next question is... Can we stop there?

[00:23:51] Speaker 00:
Yes.

[00:23:51] Speaker 00:
So there was a dispute over its authenticity, and the board went out and did its own search in order to establish that.

[00:24:00] Speaker 00:
I guess I'm...

[00:24:03] Speaker 02:
There wasn't actually really a dispute over authenticity.

[00:24:06] Speaker 02:
There's never been a suggestion that there's any reason to believe that it's not authentic.

[00:24:10] Speaker 02:
There was an objection saying, have you?

[00:24:12] Speaker 04:
What you're talking about is specifically about the piece of information.

[00:24:14] Speaker 04:
You have a piece of information, Iron Man, in that reference, right?

[00:24:19] Speaker 02:
Yes, sir.

[00:24:19] Speaker 04:
And there's a date stamp on it somewhere?

[00:24:23] Speaker 02:
Correct.

[00:24:23] Speaker 02:
A stamp placed there.

[00:24:25] Speaker 04:
What is that piece of information?

[00:24:27] Speaker 04:
What is it?

[00:24:28] Speaker 02:
What does it teach?

[00:24:31] Speaker 02:
So the way the Wayback Machines is, they take records and they don't know when they were created, but they know when they received them.

[00:24:38] Speaker 02:
And so they put a... And who's the they in that sense?

[00:24:41] Speaker 04:
Is that a company?

[00:24:42] Speaker 04:
Is that a service?

[00:24:43] Speaker 02:
It's a, well, a company providing a service, yeah.

[00:24:45] Speaker 02:
It's the Wayback Machine.

[00:24:47] Speaker 04:
And it's for... And they're sucking stuff up from the internet?

[00:24:50] Speaker 04:
Is that vacuuming things from the internet?

[00:24:52] Speaker 02:
Is that what they're doing?

[00:24:52] Speaker 02:
Correct.

[00:24:53] Speaker 02:
And placing time stamps on them.

[00:24:54] Speaker 02:
Okay.

[00:24:56] Speaker 04:
Then say, and you can go and- And this particular reference is one example of that sort of thing, a piece of information vacuumed up from the internet.

[00:25:05] Speaker 02:
Exactly, you're right.

[00:25:06] Speaker 04:
And somebody put some date on it.

[00:25:09] Speaker 02:
Well, actually the machine did, the way that machine puts the data.

[00:25:12] Speaker 04:
And was that date supposedly referencing the date in which that piece of information came into existence or when it was vacuumed?

[00:25:19] Speaker 02:
When it was vacuumed.

[00:25:21] Speaker 02:
So we know that the Iron Man itself has a 1998 date on it.

[00:25:26] Speaker 02:
The Wayback Machine has a 1999 date on it, which establishes that it was pulled off of the internet and put into the Wayback Machine on that date.

[00:25:37] Speaker 04:
On 1999?

[00:25:38] Speaker 02:
I believe that's correct.

[00:25:40] Speaker 00:
Yes.

[00:25:40] Speaker 00:
So what did the board do in terms of finding the authenticity or the evidentiary value of this that wasn't done by the parties?

[00:25:49] Speaker 02:
The board took judicial notice, which they're entitled to do,

[00:25:54] Speaker 02:
The Wayback Machine Record itself.

[00:25:57] Speaker 00:
Well, who came forward with the Wayback Machine Record?

[00:25:59] Speaker 00:
Did you?

[00:26:00] Speaker 02:
It was filed with the petition.

[00:26:02] Speaker 04:
Oh, OK.

[00:26:03] Speaker 04:
All right.

[00:26:03] Speaker 04:
It's a piece of prior art that goes into the 103 mix.

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

[00:26:09] Speaker 02:
And we filed it with a petition.

[00:26:10] Speaker 02:
And the same could be said, by the way, for a journal article.

[00:26:13] Speaker 02:
The journal article has a date on it.

[00:26:15] Speaker 02:
And you say, well, that date is hearsay.

[00:26:17] Speaker 02:
Right?

[00:26:19] Speaker 02:
How do you prove that that was the date?

[00:26:20] Speaker 02:
And these things all very rarely come up, but I guess they do come up.

[00:26:23] Speaker 02:
They certainly have come up for the Wayback Machine.

[00:26:25] Speaker 04:
You mean sort of like a date stamp on a fax machine is the idea?

[00:26:28] Speaker 02:
It is, Your Honor, which makes it not hearsay because it's done automatically.

[00:26:31] Speaker 02:
And that is all established in the record by materials that Bose submitted off of the Wayback Machine without their own authentication, of course.

[00:26:40] Speaker 02:
And it's established by the affidavit that the board found you just go.

[00:26:44] Speaker 02:
And it says, this is how the Wayback Machine works.

[00:26:46] Speaker 02:
We receive all of this information, and we automatically put the state stamp on it.

[00:26:51] Speaker 02:
And that establishes the date that it came into our records.

[00:26:55] Speaker 02:
And there's an affidavit that you can get.

[00:26:58] Speaker 02:
And the board looked at it, and the board said, there's no point in making them go get that affidavit.

[00:27:04] Speaker 02:
It would, you know, you haven't signed it.

[00:27:06] Speaker 04:
Whether or not this particular date stamp actually can be treated as showing the date at which the thing was pulled off, 1999.

[00:27:16] Speaker 04:
And if that's true, then it's prior art, correct?

[00:27:21] Speaker 02:
That is correct.

[00:27:21] Speaker 04:
OK.

[00:27:23] Speaker 04:
And the board is listening to the arguments back and forth.

[00:27:27] Speaker 04:
Is that a fact question that the board is deciding vis-a-vis authenticity in the date?

[00:27:34] Speaker 02:
That's an interesting question.

[00:27:37] Speaker 02:
It adds between legal and factual.

[00:27:38] Speaker 02:
It's certainly factual.

[00:27:40] Speaker 02:
It's reviewed for abuse of discretion.

[00:27:41] Speaker 02:
So it's an act of discretion to admit or to not.

[00:27:44] Speaker 04:
Well, I know that.

[00:27:44] Speaker 04:
But I mean, an act of discretion can prove to be an erroneous act if a legal mistake was made in the process of exercising discretion.

[00:27:54] Speaker 04:
Yes, Your Honor.

[00:27:54] Speaker 04:
So what I'm trying to get at is when the board is trying to decide whether or not this particular reference has a 1999 date on it,

[00:28:02] Speaker 04:
Should we treat that 1999 date as accurate?

[00:28:07] Speaker 02:
That's absolutely factual, Your Honor.

[00:28:09] Speaker 04:
And that actually is the... Do you have a case to cite for that proposition?

[00:28:13] Speaker 04:
Well, I believe... Has this come up in the context of, for example, a fax machine date?

[00:28:18] Speaker 04:
Because I know fax machines have automatic dates put on them.

[00:28:22] Speaker 02:
There are decisions that say fax machine dates are actually not hearsay at all, because they're done by machines.

[00:28:27] Speaker 02:
It's not the spoken word of a human.

[00:28:30] Speaker 02:
and the internet archive information.

[00:28:32] Speaker 02:
And other courts have taken judicial notice of aspects of the internet archive.

[00:28:36] Speaker 02:
There are decisions that describe how the internet archive works.

[00:28:39] Speaker 02:
This isn't brand new here.

[00:28:40] Speaker 02:
And in fact, in the materials from the internet archive.

[00:28:43] Speaker 04:
I take the issue in two pieces.

[00:28:45] Speaker 04:
Let's assume, for purposes of authentication, we agreed with you that the board was correct in deciding that they can treat the 1999 date as an accurate date.

[00:28:56] Speaker 04:
Then does hearsay matter at all?

[00:28:59] Speaker 02:
I think the hearsay objection gets subsumed in.

[00:29:05] Speaker 02:
It actually emerges.

[00:29:06] Speaker 04:
And I think there's a case that says that.

[00:29:08] Speaker 04:
Why is that so?

[00:29:10] Speaker 02:
Because if it's authentic, that establishes that it was there as of that date.

[00:29:17] Speaker 04:
Well, I was trying to get at whether or not the date was hearsay or whether what the reference is trying to teach in the combination was hearsay.

[00:29:26] Speaker 02:
Yeah.

[00:29:26] Speaker 02:
So what the reference teaches, and there is

[00:29:29] Speaker 02:
That is, of course, a factual question.

[00:29:31] Speaker 02:
And that's the oddity of this procedurally, because you can object to the admission of evidence, or you can say, the evidence can come in, and now the question is, has it adequately proved to be prior art?

[00:29:43] Speaker 02:
That would be a substantial evidence fact-finding question, the second one.

[00:29:47] Speaker 02:
The first one, as to whether you admit it, most judges, especially in a bench trial, they'll say, let's bring it in, and I'll figure out what it means.

[00:29:55] Speaker 02:
And that's the practice of it here.

[00:30:00] Speaker 02:
All they need is reason to think that it's that date, and then it can come into evidence.

[00:30:07] Speaker 04:
And then the next part of the inquiry, which Bose actually didn't argue is... I'm confused by this hearsay problem, because it strikes me that in these patent office proceedings, generally, most prior references are hearsay, because you can't challenge the person who said it.

[00:30:20] Speaker 04:
You can't cross-examine the person that created the reference.

[00:30:25] Speaker 02:
Correct, but it's not the...

[00:30:27] Speaker 02:
In that context, it's not offered for the truth of the matter asserted.

[00:30:31] Speaker 02:
So for example, if the reference says the sky is blue, you're not offering it to prove that the sky is blue.

[00:30:38] Speaker 04:
You're offering it to show that the prior art was aware that the sky was blue.

[00:30:41] Speaker 04:
We're not trying to offer this for the truth of the matter, right?

[00:30:44] Speaker 02:
Right.

[00:30:45] Speaker 02:
We're offering it as prior art.

[00:30:47] Speaker 02:
So it doesn't matter if there was an IR man product, for example.

[00:30:51] Speaker 02:
That is a piece of prior art, whether the IR man product ever existed or not.

[00:30:56] Speaker 02:
So it's not actually what it says is true.

[00:30:59] Speaker 02:
It's that people in the prior art would be aware of it.

[00:31:03] Speaker 02:
It's on the workbench.

[00:31:05] Speaker 00:
Before time runs out, can we go back to the first point your friend started at, which is the reliance on the specification as reasonable support for the board's selection of the broader of two interpretations?

[00:31:18] Speaker 02:
Yes.

[00:31:19] Speaker 02:
Yes, Your Honor.

[00:31:21] Speaker 02:
The question is, what does configured to respond mean?

[00:31:24] Speaker 02:
And I think the example in the brief is, if you ask someone to go to the grocery store, they can respond by going to the grocery store.

[00:31:31] Speaker 02:
That's an action.

[00:31:32] Speaker 02:
Or they can respond by saying, I heard what you said.

[00:31:35] Speaker 02:
That would be the narrower version that Bose is arguing for.

[00:31:38] Speaker 02:
So we're saying it's reasonable.

[00:31:41] Speaker 02:
Actually, I think even in a court proceeding.

[00:31:43] Speaker 02:
But either way, the broader version of responding with an action

[00:31:47] Speaker 02:
is within the scope of the claim.

[00:31:49] Speaker 02:
And the specification actually supports it in a couple of ways.

[00:31:52] Speaker 02:
First of all, claim one, as the board cited in its opinion, claim one says a different component, control circuitry in the speaker, can, in response to something, either take this action or send this communication.

[00:32:08] Speaker 02:
I think, for example, turn up the volume or send a signal to the computer.

[00:32:13] Speaker 02:
So it uses the phrase, in response to in the claimed,

[00:32:17] Speaker 02:
unequivocally broader sense of the word response.

[00:32:21] Speaker 04:
But also in a narrower sense.

[00:32:23] Speaker 02:
Both.

[00:32:24] Speaker 02:
Right.

[00:32:24] Speaker 02:
The broader interpretation.

[00:32:26] Speaker 02:
And we're not saying it doesn't include sending a response doesn't include sending a signal back.

[00:32:32] Speaker 02:
It does.

[00:32:33] Speaker 02:
It's either sending a signal back or taking some other action.

[00:32:36] Speaker 02:
It could be both.

[00:32:38] Speaker 03:
And so the question then also is there ever a situation where no action is taken?

[00:32:43] Speaker 03:
It seems to me that if you send a signal and nothing happens,

[00:32:47] Speaker 03:
That itself is a response.

[00:32:52] Speaker 02:
I'm not sure that I would agree with that, because if nothing happens, you may not have even received it.

[00:33:02] Speaker 02:
So I'm not sure.

[00:33:02] Speaker 02:
I think response means.

[00:33:04] Speaker 04:
It probably depends on the invention.

[00:33:06] Speaker 04:
If the invention is looking for an answer, it's either off or on or not alive.

[00:33:13] Speaker 02:
That's correct.

[00:33:14] Speaker 02:
Circuit.

[00:33:14] Speaker 02:
That's correct.

[00:33:15] Speaker 04:
So there are no juices there or not, or there's no juice in the circuit.

[00:33:18] Speaker 02:
Right.

[00:33:19] Speaker 02:
Now, of course, the board didn't take that.

[00:33:21] Speaker 02:
That would be an extremely broad view.

[00:33:22] Speaker 04:
The judge later was asking whether or not it's hypothetically possible that nothing is in response.

[00:33:28] Speaker 02:
That would be hypothetically possible, for sure.

[00:33:31] Speaker 02:
And I think I would agree with your honor that it would depend a lot on what's in the specification.

[00:33:35] Speaker 02:
The other component of this is when you're looking at selecting what form of the word response

[00:33:41] Speaker 02:
If you're talking about a liturgical response, sure, maybe somebody says something.

[00:33:47] Speaker 02:
But if you're talking about, that's a human, if you're talking about a machine, if something can respond to voice commands, well, sure, it can answer you like Alexa or whatever.

[00:33:57] Speaker 02:
Or you can instruct the robot to go over there.

[00:33:59] Speaker 02:
If it responds by going over there, that is what machines do.

[00:34:03] Speaker 02:
So in the context of the patent where it's talking about circuitry,

[00:34:08] Speaker 02:
respond would actually ordinarily, it's all going to be some sort of an electrical change, either increasing volume, doing something else.

[00:34:16] Speaker 02:
And that's exactly what the prior art shows, is a response of some kind of electrical change.

[00:34:20] Speaker 02:
Now one kind of electrical change could be sending a signal.

[00:34:24] Speaker 02:
But again, that's just binary digits getting sent.

[00:34:28] Speaker 02:
It's actually an action in and of itself.

[00:34:31] Speaker 02:
So there isn't a basis to distinguish in the context of an electrical circuit the difference between sending a signal

[00:34:38] Speaker 02:
and sending signal or doing something else.

[00:34:42] Speaker 02:
And that's why it's the broadest reasonable.

[00:34:47] Speaker 02:
With respect to claim differentiation, my colleagues suggested we have no answer.

[00:34:51] Speaker 02:
The answer in our brief is that claim differentiation doesn't always apply.

[00:34:55] Speaker 02:
And actually, as the board found, the claims are more limited even under the broader construction.

[00:35:01] Speaker 02:
So the way the argument goes, the broader claim says, for example, audio processing circuitry.

[00:35:08] Speaker 02:
And the dependent claim says the speaker is configured to respond to certain things.

[00:35:15] Speaker 02:
And they say, well, if playing music, for example, is responding to the signal, there's no claim differentiation because there's audio processing circuitry in the speaker already.

[00:35:26] Speaker 02:
And what the board found, correctly, I believe, is that the claim, the broader claim,

[00:35:32] Speaker 02:
doesn't actually require that the audio processing circuitry be connected in such a way that it's playing what's coming off the connector.

[00:35:39] Speaker 02:
The limitation actually doesn't appear in that claim.

[00:35:41] Speaker 02:
You might think it's supposed to work that way.

[00:35:44] Speaker 02:
I'll give you that.

[00:35:44] Speaker 02:
But the limitation's not in the claim.

[00:35:46] Speaker 02:
It is in the dependent claim.

[00:35:48] Speaker 02:
So it doesn't work on the law, because it's not going to override the broadest reasonable.

[00:35:52] Speaker 02:
And it doesn't work on the facts, because it actually is narrower anyway.

[00:35:59] Speaker 02:
I'll yield my last minute to the court's better uses.

[00:36:01] Speaker 02:
Thank you.

[00:36:04] Speaker 01:
I'd like to correct the record with respect to the Internet Archive and a couple of points.

[00:36:09] Speaker 01:
One is, it's undisputed on the record in this case that the Internet Archive deals with donated content.

[00:36:18] Speaker 01:
The Novak case that we cited talks about how third parties vacuum up, I think the term was used, information from the Internet and donate it to the Internet Archive.

[00:36:31] Speaker 01:
It's like Wikipedia.

[00:36:32] Speaker 01:
In fact, the board

[00:36:33] Speaker 01:
acknowledged this.

[00:36:35] Speaker 01:
This is in the record at 5472 during the hearing in the second IPRs when I'm talking about the standard affidavit and I say it describes how it receives data from third parties who compile and namely the third parties do that and they donate it and I say this is like Wikipedia and Judge Eastholm says that corroborates what we've already understood.

[00:37:02] Speaker 01:
And the Internet Archive actually has a disclaimer for its standard affidavit.

[00:37:09] Speaker 01:
The question is, they have FAQs.

[00:37:10] Speaker 01:
This is in the record.

[00:37:12] Speaker 01:
We cite it at 6287.

[00:37:14] Speaker 01:
Does the Internet Archive's affidavit mean that the printout was actually the page posted on the web at the recorded time?

[00:37:23] Speaker 01:
And the answer is the Internet Archive's affidavit only affirms that the printed document is a true and correct copy of our records.

[00:37:32] Speaker 01:
It remains your burden to convince the finder of fact what pages were up when.

[00:37:38] Speaker 01:
Now, the Internet Archive offers other services.

[00:37:42] Speaker 01:
You can pay extra.

[00:37:43] Speaker 01:
You can reimburse them for their fees.

[00:37:45] Speaker 01:
And they will search their records.

[00:37:47] Speaker 01:
And they will determine where the information came from, who posted it, when it was posted.

[00:37:53] Speaker 01:
And in fact, there are cases in which a representative from the Internet Archive is called to testify about this.

[00:37:59] Speaker 01:
And we cite the Bancel case, which is an example of that, where you can actually further investigate, find out where it came from, and if it's appropriate, if it would come in, you can offer it and bring it in.

[00:38:13] Speaker 01:
None of that was done here.

[00:38:14] Speaker 01:
We're talking about a standard affidavit that's blank.

[00:38:18] Speaker 04:
Is this going to authentication or to hearsay?

[00:38:20] Speaker 04:
Pardon me?

[00:38:20] Speaker 04:
Is this argument in your mind?

[00:38:22] Speaker 01:
It would go to authentication as well, but it's primarily the hearsay issue.

[00:38:27] Speaker 01:
On authentication, there's another misdirection.

[00:38:31] Speaker 04:
The authentication issue is not... What about his argument that it's created by a machine?

[00:38:36] Speaker 01:
There's no evidence that it's created by a machine.

[00:38:39] Speaker 01:
If you scour the record, every response they made in terms of the evidence, it doesn't come up until they're briefed in this case.

[00:38:47] Speaker 01:
The Internet Archive doesn't say it's done by a machine.

[00:38:51] Speaker 01:
If it were done by a machine,

[00:38:53] Speaker 04:
Was this degree of discussion about how the data is created, is that all done below?

[00:38:59] Speaker 04:
Is this?

[00:39:01] Speaker 01:
Yes.

[00:39:02] Speaker 04:
Well, what I just... Is the board hearing all this?

[00:39:04] Speaker 01:
Yeah, what I just said was... No, what I just said, so nothing about machine generated is down below.

[00:39:11] Speaker 01:
What is down below is donated content from third parties like Wikipedia.

[00:39:18] Speaker 01:
There's a blank standard affidavit that the board itself got not filled out

[00:39:22] Speaker 01:
not signed by anybody.

[00:39:25] Speaker 04:
What I'm trying to get at is, did you lay down these arguments that you're making today and lay them down in front of the board?

[00:39:31] Speaker 01:
Well, we didn't.

[00:39:32] Speaker 04:
Sounds to me like you didn't.

[00:39:34] Speaker 01:
Oh, we laid down the... I'm quoting from arguments to the board that I made regarding the third party content donated, like Wikipedia, and Judge Eastholm says that corroborates what we've already understood.

[00:39:48] Speaker 01:
That's undisputed.

[00:39:50] Speaker 01:
Machine-generated didn't come up.

[00:39:52] Speaker 04:
What do you take that to mean when the judge says that corroborates what we've already understood?

[00:39:56] Speaker 04:
They're saying, well, we understand what you're talking about, and we're still going to admit this.

[00:40:01] Speaker 01:
Yeah.

[00:40:01] Speaker 01:
And what they did thereafter is on their own.

[00:40:04] Speaker 04:
It seems to me like you have a duty to make an objection once the judge says, yeah, I agree with you.

[00:40:09] Speaker 04:
That's exactly what it is.

[00:40:12] Speaker 04:
that you then are supposed to lay down these arguments you're now making about why it's a mistake to treat this as though it were like Wikipedia.

[00:40:22] Speaker 01:
No, Wikipedia doesn't come in.

[00:40:24] Speaker 01:
Wikipedia is donated.

[00:40:26] Speaker 01:
You can contribute to Wikipedia.

[00:40:28] Speaker 01:
Wikipedia is of interest.

[00:40:30] Speaker 01:
We all look at it.

[00:40:31] Speaker 01:
But it doesn't come in as evidence.

[00:40:34] Speaker 01:
What we're talking about is something that has no source.

[00:40:37] Speaker 01:
If there was any evidence about it being machine generated,

[00:40:41] Speaker 01:
we would be able to investigate the machine.

[00:40:43] Speaker 01:
So the fax machine cases say faxes can be set incorrectly.

[00:40:48] Speaker 01:
We have to determine if it's set incorrectly.

[00:40:50] Speaker 01:
Radar detectors, you get to determine if it's done correctly.

[00:40:54] Speaker 01:
Was the machine programmed correctly?

[00:40:55] Speaker 01:
Was it calibrated?

[00:40:57] Speaker 01:
But machine generated doesn't come up at all until this court.

[00:41:02] Speaker 01:
It doesn't come up below at all.

[00:41:05] Speaker 00:
I think that's the key argument.

[00:41:07] Speaker 00:
Thank you.

[00:41:09] Speaker 01:
We thank both sides in the case.