[00:00:02] Speaker 01:
First case argument this morning is between 1019 Enrey Baboon, Inc.

[00:00:08] Speaker 01:
Mr. Lorig, whenever you're ready.

[00:00:15] Speaker 04:
May it please the court?

[00:00:16] Speaker 04:
Good morning.

[00:00:19] Speaker 04:
In this case, the board made three errors.

[00:00:23] Speaker 04:
The first error was it misinterpreted the 690 patent as merely claiming a web-wanned front end.

[00:00:32] Speaker 04:
for the prior art relational databases.

[00:00:36] Speaker 04:
The second error the board committed was accepting the hearsay declaration of Mr. Newberg as substantial evidence of the publication.

[00:00:45] Speaker 01:
Can I ask you, what is your claim?

[00:00:47] Speaker 01:
How would you construe Web Enabled?

[00:00:51] Speaker 04:
Your Honor, the Web Enabled is defined at columns four, line 66, through column five, page

[00:01:01] Speaker 04:
excuse me, column five, line three.

[00:01:05] Speaker 04:
Web enabled requires that the web functionality be integrated into the database as part of a single database scheme so that depending on authorization, every part of the database can be accessed remotely on the web and changes in data are automatically reflected throughout the database.

[00:01:26] Speaker 04:
The board erroneously interpreted the 690 patent

[00:01:31] Speaker 04:
as being merely a web front end to a relational database.

[00:01:36] Speaker 04:
Eroiously accepted the hearsay declaration from Mr. Neuber on publication of R33.0e.

[00:01:44] Speaker 04:
How's it hearsay?

[00:01:45] Speaker 04:
Oh, if I may, Your Honor.

[00:01:51] Speaker 04:
Let me put rephrase that.

[00:01:52] Speaker 02:
How's it not a business exception?

[00:01:54] Speaker 04:
Because, Your Honor, we're not dealing with whether

[00:01:58] Speaker 04:
3.0e is or is not a genuine document.

[00:02:02] Speaker 04:
We're dealing with the issue of whether 5,000 copies of 3.0e were allegedly distributed.

[00:02:09] Speaker 04:
And therefore... He keeps that information in the normal course of his business, does he not?

[00:02:14] Speaker 04:
He does not, if I may, Your Honor.

[00:02:16] Speaker 04:
To begin with, if Your Honor looks at paragraph 19 of Mr. Neuber's declaration,

[00:02:23] Speaker 04:
Give me a page reference.

[00:02:25] Speaker 04:
Of course, it's A18572.

[00:02:38] Speaker 04:
According to a review, he doesn't say whose review, of

[00:02:51] Speaker 04:
SAP AG records, he doesn't say what records.

[00:02:55] Speaker 04:
Over 5,000 upgrades of R3 system release 3.0E, each of which contained the R3 system release 3.0E online documentation, was shipped by SAP beginning on September 16, 1996, and prior to December 22, 1996.

[00:03:13] Speaker 04:
He doesn't say who made this review.

[00:03:16] Speaker 04:
He doesn't say what documents were reviewed.

[00:03:19] Speaker 04:
And as we stated in our brief,

[00:03:21] Speaker 04:
as far back as the Supreme Court's decision in barbed wire and your predecessor's decision in ray wire, W-Y-E-R.

[00:03:31] Speaker 04:
There has to be some confirmation for these hearsay statements.

[00:03:35] Speaker 04:
In addition, if your honor will notice at the bottom of the declaration before the signature, this is hardly the typical declaration under 1746.

[00:03:47] Speaker 04:
Instead, it uses a patent office form.

[00:03:50] Speaker 04:
which says, I declare that all statements made herein of my own knowledge are true, that all statements made on information and belief are believed to be true.

[00:04:00] Speaker 04:
And it goes on to say that the undersigned recognizes that if they're making a misstatement, it might jeopardize the undersigned's patent application.

[00:04:10] Speaker 04:
This is clearly a hearsay declaration.

[00:04:12] Speaker 04:
We don't know who reviewed what SAP records

[00:04:18] Speaker 04:
This is SAP AG, a German company.

[00:04:22] Speaker 04:
This is an SAP USA.

[00:04:24] Speaker 04:
So the entire foundation for the board's decision was a hearsay declaration that doesn't identify who looked at what records, much less identify any sample of those records.

[00:04:37] Speaker 04:
And as we tried to argue to the board and to this court in our briefs, this violates due process.

[00:04:45] Speaker 04:
It takes property based on hearsay, but more importantly,

[00:04:48] Speaker 04:
from our point of view, there isn't substantial evidence to confirm.

[00:04:52] Speaker 03:
Can I ask you, because I'm a little confused about whether you're arguing solely that we shouldn't allow the board to rely on hearsay or that reliance on hearsay is a constitutional violation.

[00:05:04] Speaker 04:
What we're saying is that the board should not have relied on hearsay that is not confirmed.

[00:05:11] Speaker 03:
As a matter of law or in this case?

[00:05:13] Speaker 03:
In this case.

[00:05:14] Speaker 03:
So you agree that the board is not bound by the

[00:05:17] Speaker 03:
The rules of evidence here.

[00:05:20] Speaker 03:
Correct.

[00:05:20] Speaker 03:
We tried to make that clear in our... And so it's up to the board whether or not to admit hearsay.

[00:05:26] Speaker 03:
It's not up to the board.

[00:05:27] Speaker 03:
Each case... Well, who is it up to then?

[00:05:29] Speaker 03:
This reviewing court.

[00:05:31] Speaker 03:
Well, isn't it initially up to the board whether to admit to stalking or not?

[00:05:35] Speaker 03:
Absolutely.

[00:05:36] Speaker 03:
And they did?

[00:05:37] Speaker 03:
They did.

[00:05:37] Speaker 03:
They made that decision and we submit that was an error.

[00:05:40] Speaker 03:
You submit that's an abuse of discretion, right?

[00:05:42] Speaker 03:
Because that's the standard.

[00:05:43] Speaker 03:
Correct.

[00:05:44] Speaker 03:
It was an abuse of discretion and we say... How does that relate to your constitutional argument?

[00:05:50] Speaker 03:
Why do you need a constitutional argument?

[00:05:52] Speaker 03:
If it's an abuse of discretion, it's an abuse of discretion.

[00:05:54] Speaker 03:
The Constitution... Let me ask you this.

[00:05:57] Speaker 03:
I don't want to take up too much of your time.

[00:05:59] Speaker 03:
Assume that we don't find an abuse of discretion.

[00:06:03] Speaker 03:
How do you have a separate due process argument?

[00:06:06] Speaker 04:
The due process argument arises from the fact

[00:06:11] Speaker 04:
that we have property that has been taken away by unconfirmed hearsay.

[00:06:15] Speaker 04:
This is an administrative procedure.

[00:06:17] Speaker 04:
We understand that.

[00:06:18] Speaker 04:
We understand that the federal rules of evidence do not apply.

[00:06:21] Speaker 03:
But you disagree that the board can rely on hearsay evidence if it properly exercises its discretion, and that that wouldn't be a constitutional violation.

[00:06:33] Speaker 03:
So I don't see any light of day between us finding an abuse of discretion and you making some kind of due process argument.

[00:06:40] Speaker 04:
We believe that each case has to be looked at under its own circumstances here because we have the unusual combination of a declaration.

[00:06:50] Speaker 03:
Let me ask you one more time.

[00:06:52] Speaker 03:
Let's say we find no abuse of discretion.

[00:06:55] Speaker 03:
Do you still argue that it's a due process violation?

[00:06:58] Speaker 03:
And if so, why?

[00:07:00] Speaker 04:
We argue it's a due process violation because we should not be deprived of our property based on uncorroborated hearsay statements.

[00:07:09] Speaker 04:
particularly when it's not even under proper oath under 1746.

[00:07:13] Speaker 01:
Well, you had notice, and you had an opportunity to respond, right?

[00:07:17] Speaker 04:
We had notice, but how does one respond?

[00:07:19] Speaker 04:
Do you go to Germany?

[00:07:20] Speaker 04:
Do you ask SAP to let you in the back door?

[00:07:23] Speaker 01:
Well, there were various corroborating documents that were also included, correct?

[00:07:27] Speaker 01:
There were corroborating documents.

[00:07:30] Speaker 01:
And they wouldn't have to show for public use that there were 5,500 copies of these.

[00:07:36] Speaker 01:
They would really have to only show one, right?

[00:07:38] Speaker 04:
They would have to show that the document had been published to such an extent that it was available to all those skilled in the art who would be working in this area.

[00:07:48] Speaker 04:
The key is not with... I'm sorry.

[00:07:50] Speaker 02:
Really?

[00:07:51] Speaker 02:
Which includes, for example, somebody's

[00:07:54] Speaker 02:
doctoral thesis on file with one university?

[00:07:57] Speaker 04:
Yes, of course, that's true.

[00:07:59] Speaker 04:
The key thing here from our perspective is we're not disputing that 3.0e existed somewhere in SAP AG's computer somewhere in Germany.

[00:08:09] Speaker 04:
What we're disputing is there's not sufficient evidence that 3.0e was published and available to those people skilled in the art.

[00:08:18] Speaker 04:
The reason we say that is because we have a declaration that says it's

[00:08:23] Speaker 04:
signed under hearsay.

[00:08:25] Speaker 04:
And as I said, at paragraph 19, it doesn't say who reviewed it.

[00:08:29] Speaker 04:
It might have been Mr. Neuber, it might have been a lawyer, it might have been somebody else reviewed what records.

[00:08:34] Speaker 04:
And what we are saying is that is not sufficient to consider this as a publication and deprive the patent holder of its property.

[00:08:47] Speaker 04:
Now, we tried not to make that our lead argument in our brief.

[00:08:50] Speaker 04:
In the brief, what we said is even if Your Honors considered 3.0e, there was clear error here.

[00:08:59] Speaker 04:
And the board improperly decided obviousness.

[00:09:03] Speaker 04:
What we argued was that the board misinterpreted the patent as just calling for a web front end for a relational database.

[00:09:12] Speaker 04:
And that it also, I think we believe, clearly made error in interpreting

[00:09:20] Speaker 04:
3.0e.

[00:09:20] Speaker 04:
3.0e, as we tried to show in our briefs, was a hierarchical database.

[00:09:30] Speaker 04:
I believe we reproduced one of the figures at page 14 of our blue brief.

[00:09:37] Speaker 04:
You've got the graphical user interface on top.

[00:09:43] Speaker 04:
You've got applications down below.

[00:09:46] Speaker 04:
And then you have your database.

[00:09:48] Speaker 04:
So you have a clear three-tier hierarchy.

[00:09:52] Speaker 04:
If you compare that with Fig 2 of the patent, which is the circular, not hierarchical, integrated database that is at the heart of this invention, you will see that the databases are different and that what you have here is prior art that's multi-tier and alleged invention

[00:10:13] Speaker 04:
that says everything is fully integrated into the same database.

[00:10:18] Speaker 04:
And if you look at R3, you've got a presentation service, an application service, and a database service.

[00:10:27] Speaker 04:
And that's shown at A12275.

[00:10:33] Speaker 04:
The key thing with having a hierarchical database, as opposed to the integrated single database schema that we claim in this invention,

[00:10:43] Speaker 04:
is shown at A12304, where in describing how R3 works, it states, all data that is used across applications is stored at the client level.

[00:10:57] Speaker 04:
It's at the application level.

[00:10:59] Speaker 04:
Parts of customer and vendor master records are stored centrally.

[00:11:03] Speaker 04:
So part of the data is with the user and the applications.

[00:11:07] Speaker 04:
Part of it is in the database.

[00:11:10] Speaker 04:
And at the same page, which we

[00:11:13] Speaker 04:
discuss it on page 14 of the opening brief.

[00:11:17] Speaker 04:
It states, every company area in the SAP system can define its own structure.

[00:11:23] Speaker 04:
The user must specify how each structures be derived from the others so that data can be transferred from one application to another.

[00:11:32] Speaker 04:
So instead of having all the data at the single database schema level, you have it distributed throughout the system with the users and at the application.

[00:11:44] Speaker 04:
Again, that is laid out at A12304, which makes clear that data is not centrally stored and is therefore not available to users throughout the system.

[00:11:56] Speaker 04:
It depends on your program.

[00:11:58] Speaker 01:
OK, can I take you back to web-enabled?

[00:12:02] Speaker 01:
What is your definition of web-enabled?

[00:12:09] Speaker 04:
Web-enabled, as I tried to say earlier, is defined at column

[00:12:14] Speaker 04:
three, line four.

[00:12:17] Speaker 04:
It's web enabled requires the web functionality be integrated into the database, not like R3, as part of a single database schema.

[00:12:25] Speaker 04:
So that depending on authorization.

[00:12:27] Speaker 01:
So a web enabled database is a database that integrates web functionality.

[00:12:33] Speaker 04:
In the context of the invention, it talks about the various domains that have to be integrated into the database.

[00:12:39] Speaker 04:
It talks about products,

[00:12:41] Speaker 04:
payments, performance, and personnel.

[00:12:43] Speaker 04:
So the web-enabled database of the invention integrates the entire business, all four domains, and is integrated such that a change in any one part of the domains is automatically reflected in the other, which is quite different than what you have with R3.

[00:13:06] Speaker 01:
Okay, we're into, but why don't we save it here from the other side.

[00:13:24] Speaker 00:
May I please support?

[00:13:26] Speaker 00:
As your honor, Judge Price, as you said, really I think what the patent issue comes down to is the meaning of web enabled.

[00:13:35] Speaker 00:
And it's the PTO's belief that web enabled here is really referring to access.

[00:13:40] Speaker 00:
It's not referring to integration.

[00:13:42] Speaker 00:
When you look at the use of the term integration in the patent, it's referring to the single database schema.

[00:13:49] Speaker 00:
That's the part that's integrated.

[00:13:51] Speaker 00:
So you don't have one department keeping files here, another department here, another department here.

[00:13:55] Speaker 00:
There's one big database, and all of the different departments of the company are accessing it.

[00:14:01] Speaker 00:
That's the integrated portion.

[00:14:03] Speaker 00:
And importantly, that kind of integrated single database schema was exactly what was before the court when this court considered the reexamination of the 275 patent and affirmed the rejection of those claims to the database schema.

[00:14:18] Speaker 00:
As you'll note,

[00:14:19] Speaker 00:
Well, you wouldn't note it because it's not before you.

[00:14:21] Speaker 00:
But in that case, there was also a web-enabled limitation.

[00:14:26] Speaker 00:
And that limitation wasn't appealed at all.

[00:14:28] Speaker 00:
It was conceded, effectively, that it was still anticipated by this very same reference, the SAP reference.

[00:14:35] Speaker 00:
Now, when it came before the court a second time, they can't really appeal the database portion, because that's already been addressed in the 275 case.

[00:14:43] Speaker 00:
So what they're addressing here is the web-enabled portion.

[00:14:46] Speaker 01:
What's the difference between web enabled and web commerce?

[00:14:51] Speaker 01:
Are the two synonymous?

[00:14:54] Speaker 00:
I think web commerce is probably a slightly broader term, but I think web enabled is really just referring to access.

[00:15:02] Speaker 00:
Access to the program over the web, as they say, facilitates telecommuting by employees.

[00:15:08] Speaker 00:
It allows people inside and outside the company to see the information in real time over the web.

[00:15:14] Speaker 00:
That's what the very few references in the specification to the term web-enabled seem to be getting at.

[00:15:22] Speaker 00:
And if they wanted a much more complicated technical definition of web-enabled that integrated it into the entire program, then one would expect that would be seen either in the specification or in the over 130 figures that are in this quite voluminous patent.

[00:15:37] Speaker 00:
And it's simply not taught.

[00:15:41] Speaker 00:
And as Your Honor alluded to with the reference to web commerce, even web commerce, presumably for purposes of bettering the patent's ability to capture infringing products and software is defined very broadly, not even as the internet, but just as some form of computer network.

[00:16:05] Speaker 00:
So we're talking about a very broadly defined claims and terms here

[00:16:11] Speaker 00:
that do not have the specific definition that Big Baboon has been attempting to imply here.

[00:16:19] Speaker 00:
So given this, the office's position is it makes perfect sense that with respect to the claims on appeal here, that the examiner and the board would look to the general disclosures of web commerce in the application and say, well, really what we're getting down to is web access at a general level and not

[00:16:41] Speaker 00:
the guts of what the actual database is doing, that's enough to make the obviousness case.

[00:16:48] Speaker 00:
And in fact, if you look to the references cited by the board in its decision, and that's at A42 Note 10, it says, yes, the examiner is looking to the general descriptions of web commerce.

[00:17:01] Speaker 00:
But look at these other references that the examiner used for other claims, more specific detail claims involving certain web components

[00:17:11] Speaker 00:
And they show that you can take this exact database, the exact SAP 3.0 database was elevated to be integrated into having web access.

[00:17:24] Speaker 00:
This happened with the very prior art publication.

[00:17:28] Speaker 00:
That's an issue before the court.

[00:17:31] Speaker 00:
And in fact, if you look at, I'll just note a few pinpoint sites at A12.571 and A130.18,

[00:17:41] Speaker 00:
SAP's own publication said basically with minimal changes, we were able to put our existing software and put parts of it on the web.

[00:17:52] Speaker 00:
And in one publication, I said it took three weeks.

[00:17:55] Speaker 00:
So we're not talking about the kind of complicated technical solutions that Big Baboon seems to be implying.

[00:18:05] Speaker 01:
Can we move on to the Neuber declaration and the comments your friends made this morning in his brief?

[00:18:10] Speaker 00:
Yes, Your Honor.

[00:18:11] Speaker 01:
And his brief as well.

[00:18:13] Speaker 01:
One question that I had that he alluded to was the board seemed to rely, you rely on your brief, the fact that he has this thing at the end that he says that, you know, these statements could be subject to fine or imprisonment for lying, et cetera.

[00:18:26] Speaker 01:
Isn't that standard?

[00:18:27] Speaker 01:
I mean, why do we give that anyway?

[00:18:29] Speaker 01:
If somebody signs an affidavit, submits it to a government relation, a government agency, of course they're going to be

[00:18:35] Speaker 01:
subject to that.

[00:18:36] Speaker 01:
It seemed like people were relying on that as if that gave further credibility to what he was saying.

[00:18:43] Speaker 00:
Well, I think if we're operating under the federal rules, there's certain magic language that needs to be used in declarations and affidavits, and maybe that's what they were trying to get at here.

[00:18:52] Speaker 00:
But as Your Honor is stating, it's not the magic language in paragraph 21 that matters.

[00:18:58] Speaker 00:
What matters is we're not dealing with

[00:19:01] Speaker 00:
you know, a Rule 30B6 corporate rep who just has been shown a bunch of documents and is swearing behind them.

[00:19:07] Speaker 00:
And we're talking about somebody who worked at SAP for 16 years in the shipping department, who himself saw the very software that we're talking about gets shipped out the door with the more or less user manual.

[00:19:19] Speaker 00:
That's the entire reference.

[00:19:21] Speaker 01:
Well, in paragraph 19, which seems to be the key paragraph, according to review of SAP AG records, over 5,500 upgrades, blah, blah, blah,

[00:19:30] Speaker 01:
Were those attached?

[00:19:32] Speaker 01:
Were any records to support that statement attached to the declaration?

[00:19:36] Speaker 00:
There were records attached, samples.

[00:19:39] Speaker 00:
And that's right behind the declaration at A18576 and then 77 and 78 and 79.

[00:19:50] Speaker 00:
And it looks like what they did was they looked at these 5,000 plus records and they printed out from the database with unique numbers on each page

[00:20:00] Speaker 00:
copies of letters that were sent to their different customers.

[00:20:03] Speaker 00:
And each letter has a unique number associated with it.

[00:20:07] Speaker 00:
Now, it's not surprising that given the passage of time, they didn't have a photocopy of those exact documents, but they were able to find them electronically and print them out.

[00:20:16] Speaker 00:
So here are three or four examples of the kinds of information that was sent to the unique customers.

[00:20:23] Speaker 00:
And those documents say that not only with the software ship, but the accompanying online manual was shipped with it.

[00:20:29] Speaker 00:
And that's really what this whole corroboration issue comes down to.

[00:20:32] Speaker 00:
I mean, there's no dispute that the SAP software 3.0 was in wide distribution.

[00:20:38] Speaker 00:
There are references to the fact that it was in use by the Coca-Cola company and one of the corroborating documents attached that's in the record.

[00:20:49] Speaker 00:
So I think what we're getting to a little bit is form over substance.

[00:20:54] Speaker 00:
I mean, the software was distributed.

[00:20:56] Speaker 00:
It is very reasonable and consistent

[00:20:59] Speaker 00:
with Mr. Neuber's declaration that the user manual would be shipped with the very software that it's describing.

[00:21:06] Speaker 02:
Well, it almost doesn't matter in the sense that what your opposing counsel seems to be arguing with is the numbers rather than the fact that things were shipped.

[00:21:20] Speaker 02:
Because the sworn declaration of a custodian of records says,

[00:21:29] Speaker 02:
an example of what I shipped.

[00:21:31] Speaker 02:
That last paragraph says, this is the number of them that were shipped.

[00:21:35] Speaker 02:
But it doesn't matter, because he says, I shipped this letter.

[00:21:39] Speaker 02:
I sent this letter.

[00:21:43] Speaker 00:
We agree.

[00:21:43] Speaker 00:
And I do think that each case may depend on the facts.

[00:21:48] Speaker 00:
And if there was one letter ever issued and it was a very obscure, difficult to find situation, then yes, they might have a point.

[00:21:55] Speaker 00:
But here,

[00:21:57] Speaker 00:
You're right.

[00:21:58] Speaker 00:
I mean, whether it was 5,500 or 5,010.

[00:21:59] Speaker 02:
That was the question I asked your opposing counsel about obscure, difficult to find situations to wit doctoral theses, which are in a university record.

[00:22:12] Speaker 02:
And there's something on the internet about them.

[00:22:16] Speaker 00:
Right.

[00:22:16] Speaker 00:
The point is it doesn't take much.

[00:22:17] Speaker 00:
I mean, it has to be publicly accessible.

[00:22:19] Speaker 00:
The bar is very low here.

[00:22:21] Speaker 00:
And the PTO has more than crossed it.

[00:22:24] Speaker 03:
I get and I think your contention is the rules of evidence don't strictly apply to these proceedings.

[00:22:31] Speaker 03:
And so the hearsay rule, although maybe instructive, doesn't have to be strictly applied.

[00:22:36] Speaker 03:
What's the space between the normal hearsay rule and what standard the board is going to use for reliability of evidence?

[00:22:48] Speaker 00:
Well, I think it's very much in the spirit of

[00:22:53] Speaker 00:
what the federal rules are getting at, although because it's an administrative proceeding, I think it's more flexible.

[00:22:58] Speaker 00:
I mean, the examiner and the board is really looking for hallmarks of reliability.

[00:23:04] Speaker 00:
And in fact, in some of the examples cited by counsel for Big Baboon, the board says, did it say draft on it?

[00:23:13] Speaker 00:
Were there conflicting dates on the documents?

[00:23:16] Speaker 00:
Those kinds of things.

[00:23:17] Speaker 00:
That would call into question the reliability of the date.

[00:23:21] Speaker 00:
Here we have

[00:23:22] Speaker 00:
So is that really it?

[00:23:25] Speaker 03:
I mean, if the board thinks that based upon the totality of the circumstances, the evidence is reliable, that's what it's going to use in relying on it or not.

[00:23:36] Speaker 03:
And when we review it, our review is whether that decision was an abuse of discretion.

[00:23:43] Speaker 00:
Correct, Your Honor.

[00:23:44] Speaker 00:
Exactly.

[00:23:44] Speaker 00:
It's the totality of the circumstances and whether it was an abuse of discretion.

[00:23:49] Speaker 00:
It's the discretion of the board to decide how to weigh these declarations.

[00:23:52] Speaker 00:
And as I'm sure your honors are aware, in many circumstances, we don't even have declarations.

[00:23:57] Speaker 00:
I mean, all we have are the bare documents that are submitted to us by the requester or that are found on the internet.

[00:24:04] Speaker 00:
And the board and the examiner have to weigh the reliability of those documents.

[00:24:09] Speaker 00:
And here we have the special instance that in addition to the documents themselves on their face being reliable, we actually have a then available witness with personal knowledge who worked for the company.

[00:24:21] Speaker 00:
So far from being a situation where we're lacking reliability and cooperation, it seems that we have a very high level of corroboration and reliability in these circumstances.

[00:24:31] Speaker 00:
Finally, with respect to the due process argument, we did want to point the court to the fact that these similar arguments have been addressed by this court on multiple occasions.

[00:24:48] Speaker 00:
both as to the applicability of the federal rules in N. Ray Epstein and also to the due process concerns articulated by Big Baboon were addressed in Abbott Labs v. Cordes.

[00:25:00] Speaker 00:
And we don't think that, you know, given the statutory construct created by Congress for these proceedings, which didn't require rules of discovery, that it would be appropriate in this instance to find that there's been a constitutional violation when the office is applying

[00:25:14] Speaker 00:
the statutory construct that was given to them.

[00:25:16] Speaker 01:
Does the fact that Congress subsequently enacted the new procedures, which do allow for discovery and so forth, inform our decision as to the constitutionality of this practice?

[00:25:25] Speaker 00:
I think it does.

[00:25:26] Speaker 00:
And I think it informs it in a way that's favorable to the office.

[00:25:29] Speaker 00:
Because those proceedings are contested proceedings.

[00:25:32] Speaker 00:
They're much more like a typical trial proceeding, where you have two parties.

[00:25:38] Speaker 00:
You're using the rules of discovery.

[00:25:39] Speaker 00:
Here, it's a purely administrative proceeding with one party participating.

[00:25:44] Speaker 00:
with the expert examiner reviewing the evidence, and there isn't the same back and forth.

[00:25:50] Speaker 00:
So it's appropriate in these circumstances that those kinds of tools would not be used.

[00:25:58] Speaker 00:
Thank you.

[00:26:05] Speaker 04:
May it please the court?

[00:26:07] Speaker 04:
I believe if the court looks at A18

[00:26:14] Speaker 04:
576, you will find that all SAP AG gave us was an undated form letter not addressed to anybody.

[00:26:23] Speaker 04:
We don't have a bunch of copies of sample letters sent to people.

[00:26:28] Speaker 02:
But he also says in his affidavit, this attaches a sample of the kind of thing I said.

[00:26:34] Speaker 04:
He does, Your Honor.

[00:26:35] Speaker 04:
And again, the key thing here is the legal conclusion of is this a publication?

[00:26:40] Speaker 04:
We're not dealing here, I don't think.

[00:26:42] Speaker 04:
with abusive process in how the board is going about its business but rather whether this reviewing court looking at the issue of is this a publication as a matter of law should properly affirm the board when all the board had was a rather unique declaration which says it's on hearsay and as I said in my opening remarks we don't know who reviewed the SAP records we don't know

[00:27:13] Speaker 04:
He doesn't say he reviewed them, Your Honor.

[00:27:14] Speaker 04:
I'm sorry, Your Honor.

[00:27:17] Speaker 02:
He says, to prepare a shipment of SAP R3 release 3.0, I printed out a delivery note.

[00:27:26] Speaker 02:
And then he says, that's at 14 and 16.

[00:27:28] Speaker 02:
It's attached as Appendix B, is an example of a letter enlisted in materials.

[00:27:35] Speaker 02:
That's on his own personal knowledge.

[00:27:37] Speaker 02:
Yes, Your Honor.

[00:27:37] Speaker 04:
But what is not on personal knowledge is a statement of habit.

[00:27:41] Speaker 04:
Yes, Your Honor, because what we're dealing with is not the existence of a document, because this is not like a thesis where we assume one skilled in the art can find a thesis based on whatever indexing may be available.

[00:27:54] Speaker 04:
There might be one, there might be two, there might be three copies of 3.8.

[00:27:58] Speaker 04:
They may have been distributed, they may not have been distributed.

[00:28:01] Speaker 04:
All we have is a hearsay declaration saying that someone reviewed SAP's records in Germany and has reached these conclusions.

[00:28:10] Speaker 04:
We submit that that is not enough.

[00:28:14] Speaker 04:
That is not enough to demonstrate that this is a publication and it's this court's decision as a matter of law to decide whether a declaration like this... You keep saying it's a matter of law, that it's an abuse of discretion standard.

[00:28:29] Speaker 04:
Well, it's an abuse of discretion as to how the board went about its business, but as I understand

[00:28:35] Speaker 04:
maybe perhaps I'm wrong, Your Honor, I apologize, but I thought it was an issue of law whether something is or is not a publication.

[00:28:43] Speaker 03:
But if it's, well, it may be, I don't even know about that, I mean, assuming they didn't abuse of discretion in putting this in the record, then whether that works, the question of whether as a publication is a substantial evidence review, isn't it, whether this piece of evidence

[00:29:03] Speaker 03:
supports that conclusion.

[00:29:04] Speaker 04:
It is, Your Honor, and the question is whether this review in court thinks it's substantial evidence.

[00:29:11] Speaker 03:
I mean, I get whether something is a publication is ultimately a question of law.

[00:29:17] Speaker 03:
But if the declaration is in because we find no abuse of discretion, and then this factual conclusion about whether it was transmitted or not

[00:29:27] Speaker 03:
we review for substantial evidence that the declaration certainly supports it, then I think that gets us to agreeing with the office on the question of law.

[00:29:37] Speaker 04:
Your Honor, normally a publication is a patent or a publication where it's not an issue on review.

[00:29:43] Speaker 04:
Here we have the rather unique circumstances that the only reason we're considering this a publication.

[00:29:48] Speaker 03:
Let me ask you this.

[00:29:50] Speaker 03:
If we disagree with you about whether this should have been relied on and we assume that everything in the declaration is true, doesn't that establish that it was a publication?

[00:30:03] Speaker 04:
Yes, Your Honor.

[00:30:06] Speaker 04:
And even if it is a publication, it still does not include the integrated single database schema where all data is updated automatically in the database.

[00:30:16] Speaker 04:
What I tried to say in my remarks earlier is that

[00:30:20] Speaker 04:
R3 is a multi-tiered database and the record sites show that only part of the data goes down to the database.

[00:30:28] Speaker 04:
Most of it is stored with the clients and with the applications.

[00:30:34] Speaker 04:
And so even if your honors decide that this is a publication, this is not the same type of database.

[00:30:42] Speaker 04:
And web enabled certainly means something more than web front end because the claims have to be read in light of the spec.

[00:30:50] Speaker 04:
there is a huge 70-page microfiche explaining how this interwoven single database schema worked.

[00:30:58] Speaker 04:
And it can't be resubmitted, reasonably ignored, because one reasonably skilled in the art would never read this patent as merely being a web front end.

[00:31:08] Speaker 04:
Thank you.

[00:31:09] Speaker 01:
Thank you, Your Honor.