[00:00:00] Speaker 03:
Our first case today is 2015-1431 in Rayneal.

[00:00:07] Speaker 03:
Mr. Crye, am I saying that right?

[00:00:14] Speaker 00:
You are, thank you.

[00:00:16] Speaker 00:
Please proceed.

[00:00:21] Speaker 00:
Good morning, Your Honors.

[00:00:23] Speaker 00:
The board denied Cablevision patents for its remote DVR technology by cherry picking elements from four unrelated prior art references.

[00:00:33] Speaker 00:
That decision was not supported by substantial evidence and the court should reverse.

[00:00:38] Speaker 00:
Cablevision developed a unique technological solution to a problem that no one had even tried to solve before.

[00:00:46] Speaker 00:
How do you take a home DVR, move it into the cloud,

[00:00:50] Speaker 00:
with all the advantages that cloud computing entails, while still complying with copyright law.

[00:00:55] Speaker 02:
Let me ask you a sort of housekeeping question.

[00:00:58] Speaker 00:
Certainly.

[00:00:59] Speaker 02:
At the end of their red break, Appley says that despite alluding to considerations of expense and complexity, Neil offered no declaration evidence and no evidence of secondary considerations of non-obviousness.

[00:01:13] Speaker 02:
Is that correct?

[00:01:14] Speaker 02:
That is correct, John.

[00:01:17] Speaker 00:
But the court doesn't need to reach secondary considerations because even on the face of the board's own rationale.

[00:01:23] Speaker 02:
That's why I said housekeeping.

[00:01:24] Speaker 02:
Precisely.

[00:01:27] Speaker 00:
Cable vision solved this problem through a unique arrangement of elements, including a novel multiple buffer system.

[00:01:34] Speaker 00:
In that system, data first passes through a primary buffer.

[00:01:38] Speaker 03:
I think we all understand how the invention works.

[00:01:42] Speaker 03:
Why don't you jump right to what the board got wrong in its determinations?

[00:01:46] Speaker 00:
Certainly, Your Honor.

[00:01:47] Speaker 00:
Where the board went wrong is that it claimed that there were motivations to combine these four elements from unrelated prior art references and attributed those motivations to the prior art references themselves.

[00:02:00] Speaker 00:
But the references simply do not say what the board claimed.

[00:02:04] Speaker 00:
And the first example of that is Walters.

[00:02:06] Speaker 00:
The board relied on Walters for a disclosure of a multiple buffer system.

[00:02:12] Speaker 03:
Walters does disclose a multiple buffer system.

[00:02:15] Speaker 00:
As the board found, it discloses a buffer and a controller, and the board held that a controller was... And you didn't argue that's not a multiple buffer system.

[00:02:23] Speaker 03:
You only argued the motivation to combine point, correct?

[00:02:25] Speaker 00:
Under the substantial evidence standard on appeal, that's correct.

[00:02:29] Speaker 03:
So tell me why they got motivation to combine wrong.

[00:02:32] Speaker 00:
Because the motivation that the examiner and the board found to combine those references was that using multiple buffers would reduce cost.

[00:02:39] Speaker 00:
And there's simply no support in the

[00:02:42] Speaker 00:
reference that the board referred to that supports that.

[00:02:45] Speaker 00:
The only reference to cost reduction in Walters, which is what the examiner cited, was a discussion of a completely unrelated aspect of the invention.

[00:02:55] Speaker 00:
In the Walters disclosure, there is a discussion of the buffering system on one page of the specification.

[00:03:01] Speaker 00:
What the examiner did was he took that reference to a multiple buffer system and then flipped back two pages in Walters

[00:03:09] Speaker 00:
to a completely unrelated aspect of the invention where Walters explains that if you transmit programs in 30 minute segments rather than entire programs, that can be more cost effective.

[00:03:21] Speaker 00:
And then the examiner said that that cost reduction rationale for a completely unrelated aspect of the invention was a reason to combine Walters' multiple buffer system and only that multiple buffer system with the RSDVR.

[00:03:35] Speaker 00:
And your honor, that just doesn't make sense.

[00:03:37] Speaker 00:
You can't attribute

[00:03:39] Speaker 00:
a motivation relating to a completely unrelated aspect of a prior art reference as a reason to combine some different and separate aspect of that prior art with the invention in suit.

[00:03:50] Speaker 00:
And just as a matter of common sense, the theory that you can combine or line up multiple buffers in series and thereby reduce costs doesn't make sense.

[00:03:59] Speaker 00:
It's counterintuitive and it's certainly not supported by Walters.

[00:04:03] Speaker 00:
The reason that Cablevision's remote DVR- Hold on for a sec.

[00:04:07] Speaker 03:
What the quote says

[00:04:09] Speaker 03:
from Walters, is such an embodiment reduces the cost of the receiver at the subscriber's location by reducing the amount of storage required.

[00:04:17] Speaker 03:
Wouldn't that also be true in a multiple buffer system?

[00:04:20] Speaker 03:
We're talking about the receiver, we're not talking about, wouldn't it reduce storage on the receiver in the cable vision system?

[00:04:28] Speaker 00:
So the receiver includes both the buffers and the storage.

[00:04:30] Speaker 00:
And what Walters is referring to

[00:04:32] Speaker 00:
The reason that embodiment reduces storage costs is that if you transmit programs in 30-minute segments rather than entire programs, you only have to store the 30-minute segments on the hard drive in Walter's system.

[00:04:45] Speaker 00:
That has nothing to do with how many buffers the data passes through on the way to that hard drive.

[00:04:50] Speaker 00:
If I can direct your Honor's attention, the cost Walters in

[00:04:56] Speaker 00:
The cost reference in Walters is on column six, page 414, which is, I think, what your honor's referring to.

[00:05:01] Speaker 00:
And that's contrasting two different embodiments of the transmission system, one where Walters transmits entire programs, and then a different one where Walters transmits programs in 30-minute segments.

[00:05:14] Speaker 00:
And he says at lines 48 to 54 that transmitting and storing the programs on the hard drives in 30-minute segments is more cost effective.

[00:05:24] Speaker 00:
The buffer discussion of Walters is several columns later.

[00:05:28] Speaker 00:
It's on page A416, column 9, from lines 26 to 43.

[00:05:34] Speaker 00:
And that's where Walters discusses what the board construed to be, and which we're assuming on appeal to be, a disclosure to a multiple buffer system.

[00:05:43] Speaker 00:
And that has nothing to do with whether Walters is transmitting entire programs for 30-minute segments.

[00:05:49] Speaker 00:
There's nothing in Walters and there's nothing in common sense that says having data passed through two buffers rather than one buffer on the way to the hard drive reduces cost.

[00:05:59] Speaker 00:
All Walters says is that if you transmit programs and you store them in 30-minute segments on the hard drive, that reduces cost.

[00:06:07] Speaker 00:
But that is not anything relevant to Cablevision's invention and it's not anything that the board incorporated into the remote DVR when it found this motive to combine.

[00:06:17] Speaker 00:
And then, as if that weren't enough, Your Honors, the board did the exact same thing with LEED.

[00:06:23] Speaker 00:
The board relied on LEED for the idea that you can have de minimis fragments of programs.

[00:06:28] Speaker 00:
Because those de minimis fragments are an important part of the RSDVR.

[00:06:33] Speaker 00:
What makes the RSDVR's buffer system novel is that the primary buffer, the one under the service provider's control, contains only a de minimis amount of data.

[00:06:43] Speaker 00:
And then the secondary buffer, the one under the user's control, can allow a larger amount of data to accumulate.

[00:06:50] Speaker 00:
Now the board said that Lee disclosed de minimis fragments and then it incorporated Lee, or claimed there was a motivation to combine those de minimis fragments with the primary buffer in the DVR.

[00:07:01] Speaker 00:
But there's simply no motivation to combine there.

[00:07:04] Speaker 00:
What the board cited was a passage from Lee where Lee says that his overall transmission architecture

[00:07:11] Speaker 00:
allows for better bandwidth construction and lossless delivery.

[00:07:15] Speaker 00:
But that was a paragraph from an introductory description of Lee's overall broadcast scheme.

[00:07:20] Speaker 00:
It had nothing to do with the de minimis fragments in Lee.

[00:07:23] Speaker 00:
The only place where Lee mentions de minimis fragments is on column nine.

[00:07:29] Speaker 00:
This is on page A431 of the appendix.

[00:07:32] Speaker 00:
This is the only thing in Lee where he mentions de minimis fragments, and this is what the board and the examiner cited.

[00:07:39] Speaker 00:
And this is not describing anything to do with the transmission scheme, let alone a recording scheme.

[00:07:44] Speaker 00:
It's the discussion of a mathematical algorithm that Lee discloses for computing what is the optimal segment size to transmit under Lee's transmission scheme.

[00:07:55] Speaker 00:
This is from lines 31 to 52.

[00:07:58] Speaker 00:
And there is a single reference there.

[00:08:00] Speaker 00:
It's around line 37, where in the first step of that algorithm, what Lee does is he divides up a program into segments

[00:08:08] Speaker 00:
each of which only has one frame of video.

[00:08:10] Speaker 00:
And then the algorithm, what you do is mathematically, you repeatedly combine those segments until a formula tells you that you've reached the optimal transmission size.

[00:08:19] Speaker 00:
And then that is what Lee says you should transmit through each of your streamers.

[00:08:23] Speaker 00:
That's the only place where Lee talks about de minimis fragments.

[00:08:26] Speaker 00:
He does not say that you should transmit de minimis fragments, and he certainly doesn't say that it makes sense to have a primary recording buffer that stores only a de minimis amount of data.

[00:08:37] Speaker 03:
He does say you can break it down into even a single frame.

[00:08:42] Speaker 03:
And then at column four, where they talk about the fragmentor, 204, I assume that's the actual portion of the system that is breaking it into these little bits.

[00:08:52] Speaker 03:
And it talks about the fragmentor.

[00:08:54] Speaker 03:
And it says each of these media objects broken up into segments by the fragmentor.

[00:08:58] Speaker 03:
And then it talks about how they're periodically broadcast.

[00:09:00] Speaker 03:
And then when you go all the way down to line 60, it talks about them being stored in Download Store 112.

[00:09:06] Speaker 00:
Right, two points on that, Your Honor.

[00:09:08] Speaker 00:
First, the fragmentor does not store the de minimis frames of data.

[00:09:12] Speaker 00:
The de minimis frames of data are steppers.

[00:09:14] Speaker 00:
No, the selector stores.

[00:09:16] Speaker 00:
The mathematical algorithm starts with de minimis fragments, but then it combines them over and over again until you get the optimal segment size.

[00:09:23] Speaker 00:
So that does not disclose that it makes sense to have streamers, each of which is only streaming a single frame of data.

[00:09:29] Speaker 00:
That would be 100,000 hardware streamers for a single program.

[00:09:33] Speaker 00:
That doesn't show up anywhere in Lee, and it doesn't make any sense.

[00:09:36] Speaker 00:
But beyond that, even if you thought that Li disclosed a system where you stream and then store a de minimis amount of data after transmission, that's the transmission phase.

[00:09:47] Speaker 00:
Li doesn't say anything about recording programs because Li is not a DVR, it's not a recording system.

[00:09:53] Speaker 00:
It is a system for optimizing the broadcast of programming and it tells you what is the most efficient way to divide up a program and then broadcast it to the user.

[00:10:02] Speaker 00:
There's simply no motivation

[00:10:04] Speaker 00:
to combine the fragment size used in broadcasting with the fragment size that's used in the RSDVR's recording buffer, because that's a completely different stage of the process.

[00:10:15] Speaker 00:
In the remote DVR, the recording buffers are where the data goes through on its way to being recorded at the head end before the transmission size.

[00:10:25] Speaker 00:
And there's no relationship, none whatsoever, between how many buffers that data passes through on the way to the hard drive, what the size of those buffers are,

[00:10:34] Speaker 00:
and how, on the other hand, you transmit that data back to users.

[00:10:39] Speaker 00:
Lee is a transmission scheme.

[00:10:40] Speaker 00:
There was no motivation to combine the fragment size used in that transmission scheme, let alone the fragment size used in this theoretical algorithm as a preliminary step to determine that transmission scheme and incorporate that into the primary recording buffer of the RSDVR.

[00:10:57] Speaker 00:
Again, what the board did with Lee

[00:10:59] Speaker 00:
was the same thing it did with Walters.

[00:11:02] Speaker 00:
It said, oh, well, here's the element I want to combine.

[00:11:04] Speaker 00:
Then it went to a completely different page of the specification and found a motivation describing a completely unrelated aspect of the invention and said, well, that motivation for this aspect of the invention is a reason to combine just this one feature of the invention with other prior art.

[00:11:22] Speaker 00:
That's not substantial evidence.

[00:11:23] Speaker 00:
It's a reasoning that doesn't even make sense on its own terms.

[00:11:27] Speaker 00:
The board did that with Walters, and the board did that with Lee.

[00:11:30] Speaker 00:
And in both cases, its findings of a motivation to combine were not supported by substantial evidence.

[00:11:38] Speaker 00:
In addition to those two references, which are by themselves grounds enough to reverse the board's decision, there was also a separate and independent error in the board's consideration of the fourth reference, Apple Bomb.

[00:11:51] Speaker 00:
The board held that Apple Bomb disclosed exclusive user control, but

[00:11:56] Speaker 00:
Apple Bomb does not disclose exclusive user control in the sense that Cablevision's invention uses that term.

[00:12:04] Speaker 00:
For the remote DVR to comply with copyright, it's important that users have exclusive control as against the service provider, not just as against other users, which is all that Apple Bomb discloses.

[00:12:16] Speaker 00:
If I may reserve the rest of my time.

[00:12:22] Speaker 03:
That's fine.

[00:12:22] Speaker 03:
Okay.

[00:12:23] Speaker 03:
How do I say your name?

[00:12:24] Speaker 03:
Thank you, Your Honor.

[00:12:33] Speaker 01:
May it please the Court.

[00:12:35] Speaker 01:
As directed by KSR and its progeny from this Court, the claim subject matter here is unpatentable as obvious because it's merely a combination of familiar components according to known methods from other prior art transmission and storage systems that yield predictable results.

[00:12:53] Speaker 01:
Here, the examiner board identifies.

[00:12:56] Speaker 03:
If that's your argument, how in the world does multiple buffers lead to predictable result of reducing cost?

[00:13:03] Speaker 03:
That doesn't seem very much a predictable result.

[00:13:05] Speaker 03:
You incorporate multiple buffers, you're increasing cost.

[00:13:08] Speaker 03:
You're not decreasing cost.

[00:13:09] Speaker 01:
You may be increasing some complexity and some level of cost.

[00:13:12] Speaker 01:
But what Walters teaches is that overall, you get a cost savings because you're saving in the storage system the way that it's set up in Walters.

[00:13:20] Speaker 01:
And what Walters teaches in the receiver, because that's what the language in Walters says, is that the storage system in the receiver saves costs.

[00:13:28] Speaker 01:
And he teaches a storage system that has dual buffers.

[00:13:31] Speaker 03:
And how is that tied to having multiple buffers?

[00:13:33] Speaker 03:
The storage system in Walters may reduce costs by virtue of other aspects of what is disclosed in Walters.

[00:13:41] Speaker 03:
But I have a very difficult time linking that to the multiple buffer.

[00:13:45] Speaker 03:
And that's the only thing you're taking from Walters.

[00:13:46] Speaker 03:
The only thing you're taking out of Walters

[00:13:48] Speaker 03:
is the multiple buffers, and you're combining it with Ellis and Applebaum and Lee.

[00:13:52] Speaker 03:
So how in the world would you, why would you reach into Walters and say, oh, let's take these multiple buffers?

[00:13:59] Speaker 03:
The board relied on, well, they would do that because Walters says it'll reduce cost.

[00:14:03] Speaker 03:
But I don't see how Walters says multiple buffers will reduce costs.

[00:14:07] Speaker 03:
There's something about Walters that reduces costs, but not multiple buffers.

[00:14:11] Speaker 01:
Two points on that.

[00:14:12] Speaker 01:
First,

[00:14:14] Speaker 01:
buffers do reduce cost in Walters, and I'll get back and explain that in a second.

[00:14:19] Speaker 01:
The second point is that the board also relied on increased performance as another motivation to combine.

[00:14:24] Speaker 01:
Now, going back to how the multiple buffers in the storage system reduces costs, the multiple buffer system in Walters acts very much like the dual buffer system in the claims.

[00:14:36] Speaker 01:
What Walters teaches is that you have a first buffer, a first memory, 330, where the information comes in.

[00:14:44] Speaker 01:
And that checks the bid.

[00:14:46] Speaker 03:
Isn't this correct, though, when he's explaining the layout of Walters?

[00:14:51] Speaker 03:
Column 6 is where the cost reduction, it's tied to such an embodiment reduces cost in the receiver.

[00:14:59] Speaker 03:
And this is where it has set out two separate embodiments, one that sends whole programs and one that breaks programs up into 30-minute segments.

[00:15:06] Speaker 03:
And when it says such an embodiment, this is with direct reference to the 30-minute segment in transmissions, correct?

[00:15:13] Speaker 01:
That's correct.

[00:15:14] Speaker 03:
Yes.

[00:15:14] Speaker 03:
So such an embodiment reduces costs as opposed to the other embodiment, which doesn't break into 30 minutes, but also uses multiple buffers, right?

[00:15:22] Speaker 03:
Right.

[00:15:23] Speaker 03:
So both embodiments use multiple buffers.

[00:15:26] Speaker 01:
That's correct.

[00:15:27] Speaker 03:
But only one embodiment is articulated as reducing costs.

[00:15:32] Speaker 01:
That's correct.

[00:15:33] Speaker 01:
And that multiple buffer system allows the overwriting, which is the cost savings discussed in column six.

[00:15:42] Speaker 01:
The buffer system works very much like in the claimed invention.

[00:15:46] Speaker 01:
Here you have the initial buffer, the primary buffer, the information comes in, it checks the vid to see if the program's been ordered.

[00:15:53] Speaker 01:
If the program's been ordered, then it will allow the system to save that information in storage.

[00:16:03] Speaker 01:
shows that that information has been ordered, it then strips the header protocol, the transmission header protocol, out of those packets and then passes it up the line.

[00:16:11] Speaker 01:
It passes it up the line to the controller.

[00:16:15] Speaker 01:
Now that controller then aggregates the data and then Walters teaches us that information, it checks to see if there's vid data that's embedded

[00:16:32] Speaker 01:
periodically in the video data that's stored in the controller, in the buffers in the controller.

[00:16:38] Speaker 03:
Are you trying to make this purposefully dense?

[00:16:41] Speaker 01:
No, I'm not trying to.

[00:16:42] Speaker 03:
Just curious.

[00:16:44] Speaker 01:
Keep going.

[00:16:45] Speaker 01:
Apologies if I am making it more complicated.

[00:16:48] Speaker 01:
Then the controller, that information, it holds onto the video data segment that

[00:16:54] Speaker 01:
has been streamed in, and then overwrites it to you.

[00:16:57] Speaker 03:
The reason I ask my question about the density is the statement in Walters seems just unequivocally clear.

[00:17:03] Speaker 03:
The cost saving is by overwriting the program.

[00:17:06] Speaker 03:
You take a 30-minute segment, and instead of needing two hours of space on a DVR to record a two-hour-long program, if you're going to record 30 minutes, and then the next 30 minutes, next 30 minutes, and you're just going to overwrite, isn't that all that this is?

[00:17:19] Speaker 03:
Overwriting?

[00:17:20] Speaker 03:
It's like if I had an old

[00:17:21] Speaker 03:
fashion tape, you're too young to remember those, but like an old-fashioned cassette tape, you could record something on it, and then guess what, you can actually record over it on the same thing, and then that way you save storage.

[00:17:32] Speaker 03:
So isn't that all that's at issue here, is recording a 30-minute segment, and then the next 30-minute segment, instead of putting it in a separate spot in memory, just recording it on top of the original 30-minute segment.

[00:17:44] Speaker 01:
Which is exactly what the second buffer allows the system to do, because the second buffer in the controller holds it because

[00:17:50] Speaker 01:
When the viewer is watching the program, that program is that first segment is sorted memory and then that segment's being played out of memory.

[00:17:58] Speaker 01:
So that second segment is downloading that information while that first segment's being played and it has to hold it in the controller until that information is provided to the viewer so then it can overwrite the system so that there's no breaks in the system and so there's no latency problem.

[00:18:13] Speaker 01:
So the way that Walters teaches us, the primary buffer and the secondary buffer, that's how it can get the cost savings

[00:18:20] Speaker 01:
in the storage.

[00:18:27] Speaker 01:
So I would submit that the statement in column six where it talks about the cost savings in the storage in the receiver is directly facilitated by the true buffer system that's taught in Walters.

[00:18:42] Speaker 01:
And so I think that is substantial evidence for the motivation to combine on cost.

[00:18:47] Speaker 01:
But even if you don't agree with the cost one,

[00:18:50] Speaker 01:
The board also found improved, or the examiner also found improved performance, is another reason why you could use the two-buffer system here and import that into Alice.

[00:18:59] Speaker 01:
And you get improved performance because you are transmitting less information over the transmission line, so you get less bandwidth requirements, and so it's a more efficient system, and the ability to have the two buffers to allow different manipulation of the data happening in parallel

[00:19:19] Speaker 01:
also allows increased performance, and that allows the users to view the data in real time as it's being played back.

[00:19:27] Speaker 01:
All of those things assist with that, so you have increased performance as well, which is an additional motivation to combine that separate and distinct from the cost savings.

[00:19:39] Speaker 01:
With respect to Li,

[00:19:47] Speaker 01:
Councilor Neal argues that you can't import the de minimis teaching from Lee because it's embodied in an algorithm and that it doesn't discuss recording de minimis fragments.

[00:20:02] Speaker 01:
I think both of those arguments are incorrect.

[00:20:05] Speaker 01:
First, with respect to Lee, what the board found, the board did not take the algorithm, did not use the algorithm and try to plug it into the system.

[00:20:13] Speaker 01:
What the board looked to Lee for and said, it's a teaching

[00:20:16] Speaker 01:
that one ordinary skill in the art would understand you could fragment video down into smaller segments and then repackage them based on whatever design considerations you have on both the receiving side and on the reception side.

[00:20:28] Speaker 01:
And that's what Lee teaches.

[00:20:29] Speaker 01:
Lee teaches that you can minimize bandwidth on the server side.

[00:20:34] Speaker 01:
You can also minimize bandwidth on the storage side, the client side.

[00:20:39] Speaker 01:
And what it does, it looks at both of those and tries to find what value

[00:20:45] Speaker 01:
of the number of frames in a segment will make those two bandwidths most alike.

[00:20:55] Speaker 01:
It minimizes the difference between the two, the delta between the two.

[00:20:59] Speaker 01:
And then that's when it decides it's gonna package the data into segments and then send it along the system.

[00:21:05] Speaker 01:
So what Li is actually teaching, it teaches not only minimizing bandwidth on the clients, on the transmission side,

[00:21:14] Speaker 01:
talks about it on the storage size.

[00:21:17] Speaker 01:
And your honor was absolutely correct when you were talking about what the structure of the fragmentor is.

[00:21:24] Speaker 01:
The fragmentor, as it's taught in this reference, it breaks the data down to single frames and then adds additional ones to find the optimal segment size.

[00:21:39] Speaker 01:
So it is actually storing each frame at one point and then it builds

[00:21:43] Speaker 01:
upon that, so it does teach storage of single frames.

[00:21:48] Speaker 01:
It may be just a very short period of time, but it's still storage of those single frames.

[00:21:52] Speaker 01:
And so, one in the ordinary skill in the art, looking at this, would understand there's a lot of different ways that you can set up a system to fragment and minimize provided daemon in this amount of data, and then transmit that over the system based on bandwidth requirements

[00:22:12] Speaker 01:
on both the sending side and the client side, the reception side, the storage side.

[00:22:17] Speaker 03:
How often do you see four reference obviousness rejections?

[00:22:24] Speaker 03:
Because I'll be honest, I've never seen one.

[00:22:26] Speaker 03:
That's a lot of references you've got to piece together to get to obviousness.

[00:22:30] Speaker 01:
It's a good number of references, but in this case, the exam work found a motivation to combine.

[00:22:34] Speaker 03:
The question I asked is actually quite personal.

[00:22:36] Speaker 03:
How often have you seen a four reference obviousness rejection?

[00:22:40] Speaker 03:
Because I never have.

[00:22:41] Speaker 03:
Not out of the PTO, never.

[00:22:43] Speaker 03:
I've seen people try to argue it in litigation, sure.

[00:22:46] Speaker 03:
But I've never seen the PTO go to four separate references and cherry pick items and then combine them together.

[00:22:51] Speaker 01:
Well, I don't know if I've seen a four-reference one, but I don't believe that the board or the examiner... Or anything greater than four.

[00:22:59] Speaker 03:
Let's be clear so this is... this deposition transcript reads right.

[00:23:01] Speaker 03:
Four or greater.

[00:23:02] Speaker 03:
That's a lot of references.

[00:23:05] Speaker 01:
It is, but the examiner here,

[00:23:08] Speaker 01:
All of those references come from the same field of art.

[00:23:10] Speaker 01:
It's all the transmission and recording of video programming data.

[00:23:15] Speaker 03:
The whole reason the cable version came up with this invention is to get around Sony.

[00:23:19] Speaker 03:
The whole reason they came up with this is to get around the copyright problems with DVRs in homes and try to reduce the amount of storage you need in your home.

[00:23:30] Speaker 03:
That's so different than pulling together these pieces where you say, well, this one

[00:23:34] Speaker 03:
mentions in the background cost savings.

[00:23:35] Speaker 03:
And this one mentions in the background efficient bandwidth.

[00:23:38] Speaker 03:
And this one mentions, and then you're just like cherry picking random elements from these references and smushing them together to come up with the invention.

[00:23:45] Speaker 03:
And it's, I don't know, I mean, you're awfully lucky this is a very deferential standard of review, that's for sure.

[00:23:50] Speaker 01:
Well, as to your first point, as to the motivation as to why the applicants put the known and familiar components together, copyright compliance,

[00:24:04] Speaker 01:
KSR and the project from this court teaches us that the motivation of the applicants does not control the obviousness of that analysis.

[00:24:12] Speaker 01:
I mean, it's the objective scope of the claim itself and what one of ordinary skill in the art of the time would have done.

[00:24:18] Speaker 01:
And so here, although while their motivation is laudable, I mean, we don't want people infringing copyright, but the examiner and the board

[00:24:32] Speaker 01:
found motivations within the references themselves and used them to show how one ordinary skill in the art would put these known components together in ways that everyone understood how they reacted to get predictable and expected results.

[00:24:53] Speaker 01:
So I think substantial, by looking at the motivations combined provided by the board and the examiner, there is substantial evidence

[00:25:01] Speaker 01:
to support the obviousness rejection.

[00:25:06] Speaker 01:
I want you to address one thing that just popped into my mind.

[00:25:11] Speaker 02:
And I'm going to ask the opponent to do the same.

[00:25:17] Speaker 02:
In the blue brief, towards the latter part, at 44,

[00:25:24] Speaker 02:
It says, it is a technological solution to the legal problem of ensuring copyright compliance during the recording system.

[00:25:33] Speaker 02:
You reminded me when you were saying that.

[00:25:37] Speaker 02:
And my question is, is the posita in this instance, or at least one of them, a lawyer?

[00:25:47] Speaker 02:
I'm not being facetious about that.

[00:25:49] Speaker 02:
Because I couldn't find any place where there was such a thing.

[00:25:54] Speaker 01:
that strikes on the problem of the term de minimis and tying it to a legal determination.

[00:26:04] Speaker 01:
It would make the claims indefinite.

[00:26:05] Speaker 01:
If they really tried to read in this de minimis copyright construction, then you will have circuit courts that may have different decisions on what exactly de minimis is.

[00:26:17] Speaker 01:
And then so you would have different standards depending on where you're located in the country.

[00:26:23] Speaker 02:
the person of skill is the judge.

[00:26:25] Speaker 02:
And I've found some cases say the judge isn't either.

[00:26:28] Speaker 01:
That's correct.

[00:26:29] Speaker 01:
So I think that the problem with importing that and trying to use that to show some kind of patentable weight here is that first, it's not recited in the claims.

[00:26:43] Speaker 01:
And second, it would render the claims indefinite.

[00:26:47] Speaker 01:
And so then again, you have to look back to the objective analysis.

[00:26:53] Speaker 01:
and the board and the examiner pointed out motivations to combine for all of the prior references.

[00:27:00] Speaker 01:
And with respect to Alphabomb, the last one, Alphabomb clearly discloses in paragraph 33 that an administrative user is the only entity that's able to configure the hard drive

[00:27:19] Speaker 01:
So therefore, one ordinary skill in the art, in reading that, would understand that that could also apply to the service provider and not just to the different users.

[00:27:32] Speaker 01:
And that is the section that the board and the examiner relied upon to find that motivation to combine.

[00:27:37] Speaker 01:
So their argument with respect to the board's failure to find a service provider and only rely on the users is not correct because that

[00:27:48] Speaker 01:
passage in AlphaBomb is not just solely directed to the users.

[00:27:56] Speaker 01:
And one of Ordinary School in the Art would understand that you could use that to provide exclusive control to the user that would prevent the service provider from configuring the hard drive as well.

[00:28:15] Speaker 03:
Okay.

[00:28:16] Speaker 03:
Thank you.

[00:28:17] Speaker 03:
Mr. Crye, have his rebuttal time.

[00:28:23] Speaker 02:
Mr. Crye, I wanted to ask you that question, and you sat down.

[00:28:26] Speaker 02:
Sorry.

[00:28:28] Speaker 02:
So that page 44 question about the legal aspects of it.

[00:28:35] Speaker 00:
Right.

[00:28:35] Speaker 00:
This isn't a technical solution to a problem that exists because of copyright law.

[00:28:39] Speaker 00:
But the person of skill in the yard doesn't need to be somebody legally trained.

[00:28:44] Speaker 00:
The problem Cablevision was trying to solve

[00:28:46] Speaker 00:
was design a remote DVR system such that no storage under the service provider.

[00:28:52] Speaker 02:
But in order to satisfy somebody, it has to be legally trained.

[00:28:55] Speaker 00:
I don't agree, Your Honor.

[00:28:56] Speaker 00:
The problem they are trying to solve is how do you have a remote DVR in which no storage of more than the de minimis amount of data is ever under the service provider's control?

[00:29:06] Speaker 00:
That is a technical problem.

[00:29:08] Speaker 02:
What's de minimis mean?

[00:29:10] Speaker 00:
Well, as the examiner found, it's a term that means very small.

[00:29:13] Speaker 00:
And that's a term from dictionary definitions and from other definitions.

[00:29:17] Speaker 00:
There's no suggestion in the rulings below that there will be any legal indefiniteness problem with that term.

[00:29:24] Speaker 00:
And the term is elaborated on in the prosecution history as well, which gives examples.

[00:29:29] Speaker 02:
The suggestion to me came from you reading your brief.

[00:29:31] Speaker 00:
No, even in the specification, there's references to particular percentages of a program, and so there's more than enough guidance in the specification to add content to that term.

[00:29:42] Speaker 00:
Judge Moore, you commented that the government was, the PTO was lucky to have a deferential standard of review, but I don't think that's going to be enough for them here.

[00:29:50] Speaker 00:
And the reason is that even under substantial evidence review, the rationale that the board itself gives

[00:29:57] Speaker 00:
has to make sense.

[00:29:59] Speaker 00:
If they say a reference says a certain thing, the reference actually has to say that.

[00:30:03] Speaker 00:
And I think as you put your finger on during the questioning of the PTO, that's a standard they can't meet.

[00:30:09] Speaker 00:
The board said, and the examiner said, the reason to combine the multiple buffer system of Walters with these other references is that it would reduce cost.

[00:30:18] Speaker 00:
And then they cited a particular passage from Walters.

[00:30:21] Speaker 00:
And there is nothing in that passage, for all the reasons that I think came across clearly during questioning,

[00:30:27] Speaker 00:
that says that increasing the number of buffers reduces cost.

[00:30:32] Speaker 03:
The most that Walters says is the... But Walters says this system will reduce receiver and storage side cost at the expense of multiple buffers, but it does say that.

[00:30:44] Speaker 00:
Right, but that's not an element of Walters that the RSDVR incorporates.

[00:30:48] Speaker 00:
The RSDVR cannot

[00:30:50] Speaker 00:
break programs down into 30-minute segments and then overwrite them because that would make no sense for a DVR.

[00:30:54] Speaker 00:
If you're recording a show, it doesn't do you any good to have a system that records the first half and then records the second half over top of it.

[00:31:01] Speaker 00:
That wouldn't work as a DVR, which is why, not surprisingly, the board and the examiner never said they're incorporating that aspect of Walters.

[00:31:09] Speaker 00:
All that the board

[00:31:11] Speaker 00:
and the examiner took from Walters was this multiple buffer system.

[00:31:14] Speaker 00:
And that has nothing, nothing whatsoever to do with reducing costs.

[00:31:18] Speaker 00:
So under any standard of review, however deferential, there is no evidence at all supporting that critical finding of a motivation to combine.

[00:31:28] Speaker 00:
And the same thing is true for Lee.

[00:31:30] Speaker 03:
On Lee, the- Your time is up, so if you have a final thought.

[00:31:34] Speaker 00:
My only final thought, Your Honor, would be that rejections based on four prior art references are rare for a reason.

[00:31:39] Speaker 00:
And it's not just four references, but four references combined in a very particular, very novel way to solve a problem that no one had even thought of before.

[00:31:47] Speaker 03:
Why didn't you argue secondary considerations?

[00:31:48] Speaker 03:
I know I told you your time is up, but I can't help it.

[00:31:51] Speaker 03:
Why didn't you argue them?

[00:31:52] Speaker 03:
It was 23, 23 years, 25, 23 years between Sony and your invention in this case as applied for.

[00:31:59] Speaker 03:
That's a long time for people to be puttering around to find a way around Sony.

[00:32:03] Speaker 03:
Longfell need failure by others.

[00:32:06] Speaker 03:
Why didn't you argue any of this stuff?

[00:32:09] Speaker 00:
There no doubt are secondary considerations that we could develop.

[00:32:11] Speaker 00:
In terms of the record before this court, there's more than enough basis to reverse on the basis of the board's rationale.

[00:32:17] Speaker 00:
And we may well pursue those arguments on remand, Your Honor.

[00:32:21] Speaker 00:
Very good.

[00:32:21] Speaker 00:
Thank you.