[00:00:02] Speaker 04:
Next case, in Ray Varma.

[00:00:12] Speaker 04:
You can start over again.

[00:00:21] Speaker 04:
I'm not going to take away the three minutes you used.

[00:00:31] Speaker 03:
Thank you, Your Honor.

[00:00:32] Speaker 03:
I guess we asked for it to be scheduled this way, so I can't complain now.

[00:00:52] Speaker ?:
Okay.

[00:00:57] Speaker 02:
Thank you, Your Honor.

[00:00:58] Speaker 02:
It seems to me that these cases are very closely related.

[00:01:01] Speaker 02:
We have the same two questions again in this case, which is what does Sardino teach with regard to one as opposed to two, and what does he teach with regard to the biasing parameter?

[00:01:12] Speaker 02:
Have I missed something?

[00:01:15] Speaker 02:
That sort of nutshell got it.

[00:01:17] Speaker 02:
I have to hear your argument again.

[00:01:21] Speaker 03:
So what we have here is we have a more clear argument with respect to a statistical analysis request, which we just went over.

[00:01:34] Speaker 03:
So it's the same four claim terms, you're right, Your Honor.

[00:01:37] Speaker 03:
And with respect to the prior art, there's one more prior art preference, Majum Calda.

[00:01:42] Speaker 03:
In addition to Sartino and Baracwan,

[00:01:44] Speaker 03:
There is another reference.

[00:01:46] Speaker 02:
One of these specific points we're talking about, one against two, and what the bias parameter is.

[00:01:52] Speaker 03:
And resampling and pertaining and corresponding.

[00:01:55] Speaker 02:
That's the ball game, right?

[00:01:57] Speaker 03:
Yes, you're right.

[00:02:00] Speaker 03:
It's fundamentally the same four claim terms.

[00:02:04] Speaker 03:
Bias parameter, resampling, pertaining corresponding to two or more selected investments, and a statistical analysis request.

[00:02:13] Speaker 02:
But we pretty much heard.

[00:02:15] Speaker 02:
Judge Toronto has asked for specific reference from both of you, from your experts, what's in the record that we can look at so we can make a substantial evidence call.

[00:02:26] Speaker 02:
We've got nothing new to add on that, right?

[00:02:30] Speaker 03:
Your Honor, with respect to that, one of the problems with the board's opinion is that we supplied expert testimony from distinguished leaders

[00:02:44] Speaker 03:
in the field, including a Nobel Prize winner, and the board simply said that these declarations did not address the claims.

[00:02:53] Speaker 03:
And that is just simply not true, Your Honors.

[00:02:56] Speaker 03:
If you look at Dr. Savage's declaration, he does provide background, that's correct, but then he ends up with

[00:03:04] Speaker 02:
But that doesn't, whether the board did or did not, made a mistake on that, doesn't help us unless you're asking us to vacate the board decision, send it back, and make them do it.

[00:03:13] Speaker 02:
No, Your Honor.

[00:03:13] Speaker 03:
We're not asking for that.

[00:03:14] Speaker 02:
We're still stuck with the problem of trying to figure out exactly what does Sortino teach in respect to these two claim limitations.

[00:03:24] Speaker 03:
Right.

[00:03:25] Speaker 03:
Your Honor, we particularly commend the testimony of Dr. Savage.

[00:03:33] Speaker 03:
of Dr. Herzog.

[00:03:35] Speaker 03:
We also commend Dr. Soltino's own testimony about his own references, where he says, I was not trying to come up with a system that would provide an investment portfolio analysis.

[00:03:50] Speaker 03:
That's not what I was trying to do.

[00:03:52] Speaker 03:
And indeed, the 291 system is completely different.

[00:03:56] Speaker 03:
I'd also commend to you the, on the record,

[00:04:03] Speaker 02:
The fact that he was trying to teach a system that ended up doing something else is irrelevant to whether or not his disclosure teach something that's in the patent.

[00:04:13] Speaker 02:
You don't have to have equation of purpose in patent law to have a prior reference teach you something.

[00:04:20] Speaker 02:
I agree, Your Honor.

[00:04:21] Speaker 02:
You can go pull the fish out of any lake you want.

[00:04:25] Speaker 03:
I agree, Your Honor.

[00:04:26] Speaker 03:
The issue here, though, is that he actually said trying to keep track of things like

[00:04:34] Speaker 03:
temporal correlation between investments was detail that he thought was unnecessary noise.

[00:04:41] Speaker 03:
That's what he said in his declaration.

[00:04:43] Speaker 03:
I'm sorry, I missed he who?

[00:04:45] Speaker 03:
Dr. Sortino himself said on the record that this level of detail actually took away from him.

[00:04:52] Speaker 02:
He says, I'm a big picture guy.

[00:04:54] Speaker 02:
I don't want to know what's going on down in the details.

[00:04:57] Speaker 02:
But if he's using the big picture picture for two investments at a time,

[00:05:03] Speaker 02:
then he's going to read on your investment.

[00:05:05] Speaker 03:
Right, and that's what he wasn't, Your Honor.

[00:05:08] Speaker 03:
What he was trying to do was, and I want to commend particularly Footnote 4 in Sortino to your attention.

[00:05:15] Speaker 02:
Why wouldn't a reasonable person of ordinary skill think that when you're looking at the S&P 500, you're looking at 500 different companies?

[00:05:25] Speaker 02:
Through a particular lens?

[00:05:28] Speaker 03:
Right.

[00:05:29] Speaker 03:
Actually, you're not, Your Honor, because when you have, for example, as we all know, if you bought a mutual fund that was indexed to the S&P 500, what you have is simply one investment where it is tied to the values of 500 investments based on your market cap, but you don't own any of the underlying

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

[00:05:48] Speaker 03:
You cannot trade any of the underlying securities.

[00:05:50] Speaker 03:
You can change the composition of any of them.

[00:05:53] Speaker 02:
Then what happens if you're asking about the S&P 500 for one month in one year compared to one month in another year?

[00:06:02] Speaker 02:
Each one of those was separate investments.

[00:06:04] Speaker 02:
When I go in and buy, take a put or a call on the S&P 500, I pick the month I want to do it on, I put my money down, that's an investment.

[00:06:13] Speaker 02:
Two days later, I go back into the market and I do another one in a different month.

[00:06:17] Speaker 02:
That's another investment.

[00:06:20] Speaker 02:
What Sardino is doing is selecting various months in various years in which people made investments.

[00:06:29] Speaker 03:
Actually, that's not what he's doing, Your Honor, because as you can see, what he's doing is he's looking at 12 monthly returns for the same investment

[00:06:36] Speaker 03:
in the same scenario.

[00:06:37] Speaker 02:
Isn't he picking different months?

[00:06:40] Speaker 03:
He picks... Yes or no?

[00:06:42] Speaker 03:
He picks 12 monthly returns, Your Honor.

[00:06:44] Speaker 03:
That's what football says.

[00:06:45] Speaker 02:
And then he selects different months.

[00:06:47] Speaker 02:
He doesn't take 12 calendar months necessarily.

[00:06:50] Speaker 03:
No, but it's only one investment.

[00:06:52] Speaker 02:
Yeah, he says... The thing is he picks one month and then he picks a second month.

[00:06:57] Speaker 02:
If I was in the marketplace spending Clevenger's hard-earned money, I would make two separate investments when I purchased in those two different months.

[00:07:06] Speaker 02:
Why isn't that two investments?

[00:07:09] Speaker 02:
Your Honor, in your scenario, it could be.

[00:07:11] Speaker 02:
Why isn't this, if it was two investments when I wrote a check, right?

[00:07:16] Speaker 02:
The January S&P 500 and the June S&P 500.

[00:07:21] Speaker 02:
That's two investments.

[00:07:22] Speaker 03:
You're absolutely correct, Your Honor.

[00:07:23] Speaker 03:
And if you guys... If basically that was essentially... He's looking at exactly that.

[00:07:30] Speaker 03:
He's looking at those two investments.

[00:07:32] Speaker 03:
Right.

[00:07:32] Speaker 03:
So if basically you were doing that, that would be fine, except what Sortingo teaches is you take that one investment in your first month

[00:07:39] Speaker 03:
And then you pick a particular scenario and you bootstrap it.

[00:07:42] Speaker 02:
And then you... I'm not talking about whether or not there's a bias framework.

[00:07:45] Speaker 02:
I'm just talking about whether or not it's one investment or two.

[00:07:47] Speaker 02:
I'm trying to be very simple-minded about this because that's one limitation, right?

[00:07:51] Speaker 02:
Right.

[00:07:52] Speaker 02:
And all I'm saying to you is that the boards seem to think that looking into the S&P 500 constitute looking at more than one investment.

[00:08:02] Speaker 02:
Right.

[00:08:02] Speaker 02:
Right?

[00:08:03] Speaker 02:
And all I'm asking is whether or not there's substantial evidence behind that.

[00:08:06] Speaker 02:
And I think I've got you to tell me

[00:08:09] Speaker 02:
that when I go out and buy S&P Januaries, that's an investment.

[00:08:13] Speaker 02:
When I buy or sell S&P 500s in June, that's a second investment.

[00:08:19] Speaker 02:
And Sortino looked at those two different scenarios.

[00:08:23] Speaker 03:
All that he tells us is that the 12 monthly returns corresponds to a given investment in a given scenario.

[00:08:29] Speaker 03:
He does not address the particular hypothetical, Your Honor, that you're posing, where you basically have one investment.

[00:08:35] Speaker 02:
A given asset would be a January 500, and another asset would be a June 500.

[00:08:41] Speaker 02:
That's two different assets.

[00:08:42] Speaker 02:
It's a given asset in two different time periods, two separate assets.

[00:08:47] Speaker 03:
That is just not discussed in Sortino, where you basically have two different investments based on the S&P 500 that you treat separately.

[00:08:56] Speaker 03:
And I understand that could be a scenario.

[00:08:58] Speaker 02:
And what Sofino doesn't do is... If I do a put on IBM in the morning and I do a call in the afternoon, that's one investment on IBM, but it's two investments, is it not?

[00:09:11] Speaker 03:
Your Honor, yes.

[00:09:13] Speaker 02:
So it seems to me you've answered my question.

[00:09:15] Speaker 02:
So there is possibly substantial evidence to support looking at the S&P when you're picking months within the S&P to be two investments, not just one.

[00:09:25] Speaker 04:
Let me help you out on something, Council, because I'm going to ask you the same question I asked you in the last case, because there's a waiver argument here.

[00:09:36] Speaker 04:
This time it's resampled statistical distribution and corresponding pertaining to two or more investments.

[00:09:43] Speaker 04:
And I want to know where in the record Dr. Varma specifically asked for its claim constructions.

[00:09:55] Speaker 03:
And with respect to the resampling term, Your Honor, the support for this is found on page 1013.

[00:10:07] Speaker 03:
And there is an entire discussion from page 1006 to 1013 and on page 1032 in the record, in the Ex Parquet case.

[00:10:21] Speaker 03:
And the same

[00:10:22] Speaker 03:
pages are where the pertaining to two or more is discussed and a statistical analysis request is discussed.

[00:10:29] Speaker 03:
That's on pages 1,006 to 1,013 and 1,032.

[00:10:33] Speaker 04:
And you're telling me that if I look in those, I'll find that Dr. Verma is asking for a particular claim construction.

[00:10:42] Speaker 03:
Right.

[00:10:43] Speaker 03:
There's a discussion of the claim terms as they should be construed in light of the

[00:10:49] Speaker 02:
Of course, the discussion is... This is in the appendix in this case, not in the appendix in the other case.

[00:10:54] Speaker 02:
Which appendix?

[00:10:56] Speaker 03:
Yes, Your Honor.

[00:10:57] Speaker 03:
The pages that I cited were from the joint appendix in the ex parte case.

[00:11:02] Speaker 01:
And I think you said something earlier.

[00:11:04] Speaker 01:
It feels relevant here, so if you can clarify that in this re-exam process, there's no such thing as a claim construction proceeding or a claim construction brief.

[00:11:16] Speaker 01:
You just make your arguments about

[00:11:19] Speaker 01:
whether there's prior art in validity.

[00:11:21] Speaker 01:
And in the course of those arguments, you say something about what you think the claim means, but you'd better do it with reasonable clarity, right?

[00:11:30] Speaker 03:
Correct.

[00:11:31] Speaker 03:
Your Honor, this is an inter-parties re-exam where that is exactly what is done.

[00:11:35] Speaker 03:
However, this court has held that the board does need to provide a claim construction in order to do meaningful appellate scrutiny.

[00:11:41] Speaker 03:
And here, if you look at what the board has done, it's hard for us to figure out what the construction is.

[00:11:47] Speaker 03:
And more importantly, sometimes,

[00:11:49] Speaker 04:
Did you present the claim constructions you're arguing to us now before the board in those pages?

[00:11:55] Speaker 04:
Yes.

[00:11:56] Speaker 03:
Yes, we did, Your Honor.

[00:11:58] Speaker 03:
And more importantly, to the extent that we can define any kind of claim construction, it appears to be contrary to, for example, the explicit language of the claims.

[00:12:06] Speaker 03:
So, for instance, the board with respect to bias parameter, they seem to be saying bias parameter is met in Sortino that is not even a bias parameter, it's just a bias after sample selection.

[00:12:18] Speaker 03:
And they seem to be saying that after sample selection meets the in sample selection requirement.

[00:12:25] Speaker 03:
And so we're left with wondering, you know, what exactly is the construction?

[00:12:28] Speaker 03:
Because it appears to be contrary, and there really is no construction that this court can even agree to, because we don't know what it means.

[00:12:35] Speaker 02:
And it's just a question on the claim construction issue.

[00:12:38] Speaker 02:
I don't want to talk about it.

[00:12:39] Speaker 02:
Your view is that in these types of proceedings, there isn't any formal claim construction process, and it emerges from the arguments you're making against each other?

[00:12:48] Speaker 02:
And you said in response to Judge Torano's question, or maybe it was the presiding judge, that before the board, you made claim construction arguments.

[00:12:58] Speaker 02:
Is that correct?

[00:12:59] Speaker 02:
Yes, yes.

[00:13:00] Speaker 02:
OK, did the other side argue waiver at the board level to you, saying you can't make those claim construction arguments?

[00:13:06] Speaker 02:
No, not that I recall.

[00:13:07] Speaker 02:
I didn't see any.

[00:13:08] Speaker 01:
Yeah, not that I recall.

[00:13:13] Speaker 01:
Here the other side is the examiner.

[00:13:15] Speaker 03:
The examiner, essentially.

[00:13:17] Speaker 03:
Your Honor, I want to reserve the rest of my time for somebody.

[00:13:36] Speaker 04:
Ms.

[00:13:36] Speaker 04:
Rashid?

[00:13:37] Speaker 00:
May I please support?

[00:13:39] Speaker 00:
On the one against two.

[00:13:40] Speaker 02:
Is your adversary right in what happens in these types of re-exam proceedings is that there isn't a formal Markman claim disruption type setting?

[00:13:50] Speaker 00:
That's right.

[00:13:50] Speaker 00:
A re-examination is done the way regular examination is done.

[00:13:54] Speaker 00:
The board and the examiner's burden is to make sure that the applicant understands what the board means, that the claim terms mean, and provides that in a fair manner under what this court found in junk.

[00:14:07] Speaker 02:
And you're not making any argument in this case that the appellant has waived any arguments it's trying to make that relate to claim disruption?

[00:14:17] Speaker 00:
I do believe that they did waive certain arguments with regards to... Are you going to speak up a little bit?

[00:14:23] Speaker 02:
Are you arguing waiver?

[00:14:25] Speaker 00:
We are arguing waiver with regards to what a resampled statistical analysis means and what two or more investment means because what they said

[00:14:34] Speaker 00:
to this court is different than what they argued before the board, right?

[00:14:38] Speaker 02:
They kind of rephrased their argument about simultaneous... Well, that's not... You're not arguing that they've lost the right to make a claim destruction argument.

[00:14:48] Speaker 02:
You're saying their argument is wrong because it's inconsistent with what they argued below.

[00:14:52] Speaker 00:
That's right, because it's a new... It's an improper new question of claim scope, right?

[00:14:57] Speaker 00:
That the agency didn't have a chance to really opine on.

[00:15:03] Speaker 00:
And the pages that Mr. Kisan pointed to, at least with regards to the point about whether or not there's this requirement to maintain coherence, all that they said with regards to that point is that Sortino doesn't have a database, so it can't maintain coherence.

[00:15:23] Speaker 00:
Sortino doesn't have a key.

[00:15:24] Speaker 00:
But the board was relying on Maggio and Calda to provide the database limitations.

[00:15:32] Speaker 00:
So this argument that that was a claim construction argument doesn't really follow.

[00:15:39] Speaker 00:
I think the big question here though is, you know, does one against two?

[00:15:44] Speaker 04:
I have to tell you, I just put my hearing aid in and I still can't hear you.

[00:15:48] Speaker 00:
I'm sorry, I'm going to try to speak up.

[00:15:50] Speaker 00:
No, I'll try to speak up.

[00:15:51] Speaker 00:
I think the big picture question here is why should it matter for a 103 patentability determination whether there's one request or two requests, right?

[00:16:01] Speaker 00:
The point is that the information is desirable.

[00:16:04] Speaker 02:
We know that it's desirable because... Is it one investment or two investments?

[00:16:08] Speaker 00:
That's right, the ratio.

[00:16:09] Speaker 00:
They seem to claim that the ratio is critical, right?

[00:16:12] Speaker 00:
One request, two investments.

[00:16:14] Speaker 00:
Sortino teaches two investments in the sense that Sortino is analyzing the S&P 500, and the S&P 500 consists of 500 underlying investments, right?

[00:16:24] Speaker 01:
I guess I'm having trouble seeing how that's at all a relevant sense.

[00:16:28] Speaker 01:
If I buy a share of IBM, IBM has zillion specific assets.

[00:16:35] Speaker 01:
I got no access to those individual assets, or at least when I'm buying IBM, I don't have it.

[00:16:42] Speaker 01:
I'm buying a share.

[00:16:43] Speaker 01:
The S&P share represents whatever goes into the value.

[00:16:47] Speaker 01:
It doesn't really matter what it goes into the value.

[00:16:49] Speaker 01:
There's a share of S&P.

[00:16:52] Speaker 01:
So I don't understand the relevance of that.

[00:16:54] Speaker 01:
It would be relevant if Sortino taught anything along the lines that Judge

[00:16:58] Speaker 01:
Clevenger was referring to either puts or calls for different days or following an S&P February 3rd share and what its returns were compared to an S&P February 4th share and what its returns were.

[00:17:16] Speaker 01:
Where does Sortino do any of that?

[00:17:19] Speaker 00:
Well, Sortino in his declaration actually himself says that, you know, that- Titus to the record.

[00:17:27] Speaker 02:
Sergino's Declaration.

[00:17:30] Speaker 00:
That's right.

[00:17:32] Speaker 02:
It starts today, 776, in Enray of Armament.

[00:17:41] Speaker 00:
At paragraph 22, which is on 781.

[00:17:46] Speaker 02:
Paragraph 22.

[00:17:54] Speaker 00:
Mr. Cason is right to the extent that Sortino admits that he wasn't necessarily concerned about the details of the underlying... He says, we don't care about the underlying security.

[00:18:03] Speaker 02:
That's right, but... That's the background noise.

[00:18:05] Speaker 00:
That's right, but he goes on to say it was not relevant to him for his particular purpose, right, for asset allocation.

[00:18:11] Speaker 00:
We only needed to measure the covariance between the overall asset categories.

[00:18:15] Speaker 00:
So they did look at, Sortino did look at covariance between

[00:18:18] Speaker 00:
the S&P 500 and Japan, et cetera.

[00:18:20] Speaker 00:
And it says it right there.

[00:18:22] Speaker 01:
Excuse me, we keep changing points.

[00:18:23] Speaker 01:
That has nothing to do with whether there are 500 companies that go into what makes up the S&P index.

[00:18:32] Speaker 00:
The third question, though, is at the breadth of the claims.

[00:18:35] Speaker 00:
The claims are saying pertaining to two or more investments, corresponding to two or more investments.

[00:18:42] Speaker 00:
That does not clearly define a correlation of one to two.

[00:18:47] Speaker 00:
That language is so broad that it doesn't preclude Sortino's analysis of the S&P 500, which... I'm sorry.

[00:18:55] Speaker 01:
Where does the board say anything about that other than the top of, I guess, page five of its opinion, JA6, to agree with the examiner who noted that Sortino discloses analysis of the S&P 500 index, which comprises 500 underlying stocks and investments?

[00:19:16] Speaker 00:
That's right, but the board also incorporated by reference portions of the examiner's answer and portions of the final offer section on A4.

[00:19:23] Speaker 01:
So where do those rely on this particular point from Sortino Declaration, paragraph 22, the parenthetical about the entire S&P, Japan, et cetera?

[00:19:33] Speaker 00:
Well, that point was, I was just, the point I was making there was just to counter the point by Mr. Kisan that Sortino is only looking at one asset and no other assets.

[00:19:44] Speaker 01:
because he himself says he looked at more than one asset, and he actually looked at the co-variance between... In response to single requests, that is, did he do... Is there something in Sortino that says, give me a request for some sort of statistical analysis, and then I do that analysis on at least two assets, as opposed to today I do S&T, tomorrow I do PK, whatever,

[00:20:14] Speaker 00:
The examiner went on to explain that not only is it relying on that analysis that the S&P 500 consists of two or more assets, but also the appellant's own arguments of how Sartino works, right?

[00:20:27] Speaker 00:
The appellant at 828 where the examiner explains what the appellant argument is, the appellant says that Sartino works, one way that Sartino could work in comparing two assets is by comparing the S&P 500 to the U.S.

[00:20:41] Speaker 00:
Treasury

[00:20:42] Speaker 00:
bond index, right?

[00:20:43] Speaker 00:
And so they themselves admit that Sortino can look at two assets.

[00:20:47] Speaker 02:
Yeah, but not at the same time.

[00:20:49] Speaker 00:
But that's not required.

[00:20:50] Speaker 00:
Where does it say that you have to look at them at the same time?

[00:20:53] Speaker 00:
That's not in the claims.

[00:20:55] Speaker 00:
It's barely in the specification.

[00:20:57] Speaker 02:
Is A request regarding two investments?

[00:21:01] Speaker 00:
Yeah.

[00:21:01] Speaker 00:
No, it's A request corresponding or pertaining to two or more investments, right?

[00:21:07] Speaker 00:
The corresponding or pertaining to is very broad language.

[00:21:12] Speaker 02:
It isn't like... Well, of course, running means in any possible relationship to, in any possible way relating to, then the S&P 500 or Berkshire Hathaway is a good example of a holding company.

[00:21:29] Speaker 02:
You buy Berkshire Hathaway stock and Berkshire Hathaway is nothing.

[00:21:32] Speaker 02:
I mean, it's Warren Buffett in his office in Omaha.

[00:21:36] Speaker 02:
It's everything else underneath it.

[00:21:38] Speaker 00:
I think for them to establish that type of correlation, they would have had to provide much stronger evidence than the strained extrapolation language that they use, right?

[00:21:47] Speaker 01:
And it's not just a request.

[00:21:49] Speaker 01:
The claim language goes on to say, based upon investment data pertaining to the two or more, we do a analysis.

[00:21:57] Speaker 01:
So the analysis, this resampling analysis, I'm having trouble understanding how that can mean anything other than a resampling analysis

[00:22:07] Speaker 01:
the subject of which is at least two investments.

[00:22:14] Speaker 01:
I mean, a request could be, you know, somebody comes into Sortino's office and says, I'd like you to do the following four things.

[00:22:23] Speaker 00:
You know, if you're looking at the specification as, or the claim language as revised in isolation, perhaps you can come to that conclusion.

[00:22:31] Speaker 00:
But when you look at it in terms of what the specification discloses,

[00:22:34] Speaker 00:
it's really not consistent with this idea that they made a one to two correlation, or that there is one request for two investments.

[00:22:41] Speaker 00:
But the parts of the specification that they rely on and support are these non-limiting embodiments when they're looking at figures, right?

[00:22:48] Speaker 00:
Figure 11 specifically, which discloses that some of the databases can store multiple investments for multiple time periods.

[00:22:56] Speaker 01:
But that doesn't mean... So what are the best places in the spec for the idea that part of what is being covered here

[00:23:03] Speaker 01:
was a resampling analysis of a single instrument with different market values over every day or month or something like that?

[00:23:15] Speaker 00:
Well, the disclosure I think in column two, lines 53 to 54, 51 to 52 talks about the fact that it's an investment or investments.

[00:23:25] Speaker 00:
It's not limited to multiple investments.

[00:23:28] Speaker 00:
Nowhere does it talk about simultaneous analysis.

[00:23:31] Speaker 00:
Nowhere does it talk about

[00:23:33] Speaker 00:
us at the same time, you're getting that it's completely extrapolated from these non-limiting figures that talk about multiple time periods and databases that store information from multiple time periods.

[00:23:44] Speaker 01:
And it's your view that these particular claims have to cover, well maybe I'll ask the question more positively, are there any other claims that might cover an investment situation that's not part of

[00:24:03] Speaker 01:
I guess what we have is here claims 22, 23, and 25.

[00:24:06] Speaker 01:
Is that correct?

[00:24:10] Speaker 01:
That's right.

[00:24:12] Speaker 00:
They only argue claims.

[00:24:13] Speaker 01:
Like many patents, this one could have different claims and that particular spec reference at column two might not be covered by the two or more investments claim.

[00:24:25] Speaker 00:
That's right.

[00:24:25] Speaker 01:
Okay.

[00:24:28] Speaker 00:
I think the big picture question though is

[00:24:31] Speaker 00:
Who cares if it's one request or two requests?

[00:24:34] Speaker 00:
It's still obvious, right?

[00:24:35] Speaker 00:
The point is that this is... It's still what?

[00:24:36] Speaker 00:
It's still obvious.

[00:24:38] Speaker 01:
What's obvious?

[00:24:40] Speaker 00:
It's obvious to look at if you know that the information is desirable, right?

[00:24:45] Speaker 00:
And if it's obvious to have one request for one investment, why wouldn't it be obvious to have one request for two investments?

[00:24:52] Speaker 01:
Did the board say that?

[00:24:53] Speaker 00:
I think that's what the board is saying.

[00:24:54] Speaker 00:
Like at A6 when the board says that Sortino suggests that

[00:24:58] Speaker 00:
And what would you say A6?

[00:25:00] Speaker 00:
And A6.

[00:25:01] Speaker 00:
Sortino suggests the ability to analyze two or more investments.

[00:25:04] Speaker 01:
The examiner goes on to say... Where is this in the board's decision?

[00:25:09] Speaker 00:
A6.

[00:25:10] Speaker 01:
Got the 6th line down from the top?

[00:25:12] Speaker 00:
Oh, yeah, sorry.

[00:25:12] Speaker 00:
Yeah, the first full paragraph, the second sentence.

[00:25:16] Speaker 00:
It doesn't say Sortino.

[00:25:18] Speaker 00:
It suggests the ability.

[00:25:20] Speaker 02:
Where does he suggest the ability?

[00:25:22] Speaker 02:
There's a lot of suggesting going on in the board's opinion in these two cases.

[00:25:26] Speaker 02:
I suggest this and I suggest that.

[00:25:28] Speaker 00:
It's not an anticipation rejection.

[00:25:30] Speaker 00:
It's an obviousness rejection, right?

[00:25:32] Speaker 00:
And it makes no sense that you could, it would be desirable to look at one, but not desirable to look at two.

[00:25:38] Speaker 02:
Where's the declaration that says that?

[00:25:39] Speaker 02:
Where's some evidence that says one of ordinary skill in the art would read Soratino to know that you could do, make one request to look at two investments instead of one?

[00:25:51] Speaker 00:
You can make serial requests, right?

[00:25:53] Speaker 00:
You can make serial requests under a Sortino.

[00:25:55] Speaker 00:
It doesn't really matter.

[00:25:57] Speaker 02:
You make two requests on the same investment.

[00:25:59] Speaker 02:
That's not doing what the claim calls for.

[00:26:02] Speaker 00:
That's right.

[00:26:04] Speaker 00:
You can make requests on different investments and then combine the analysis the way that the appellant itself understood it.

[00:26:09] Speaker 02:
I mean, it may well be that one ordinary skill in the art, looking at Sortino, would say, you know, I could amend Sortino.

[00:26:19] Speaker 02:
I could make a little adjustment here.

[00:26:20] Speaker 02:
Because all I got to do is push a different couple of buttons on my computer, and I can do two at once.

[00:26:27] Speaker 02:
But I don't see that argument being made anywhere.

[00:26:30] Speaker 02:
I don't see the people who are challenging the patent made that argument below.

[00:26:34] Speaker 02:
I didn't see that piece of the analysis.

[00:26:37] Speaker 00:
I think the examiner is saying that.

[00:26:39] Speaker 00:
And the examiner, in the examiner's answer, at A28 to A30, says the board, it says that it's clearly at A28.

[00:26:48] Speaker 02:
Where on page A28 is the examiner saying what you just said?

[00:26:54] Speaker 02:
Which line?

[00:26:56] Speaker 02:
Which line?

[00:26:58] Speaker 02:
It's hard enough to hear what you're saying.

[00:27:00] Speaker 00:
I'm sorry.

[00:27:00] Speaker 00:
I'm trying to speak up.

[00:27:01] Speaker 02:
You've got to tell us exactly which lines you're talking about.

[00:27:06] Speaker 00:
Let's see.

[00:27:07] Speaker 02:
I'm looking at page JA28, which is where you told me to look.

[00:27:13] Speaker 00:
I think here the examiner is talking about the fact that the claim language doesn't preclude.

[00:27:19] Speaker 02:
Which line, halfway down?

[00:27:20] Speaker 00:
Yeah, halfway down, right before the quote.

[00:27:24] Speaker 02:
Made up of 500 stocks, the breadth of the language pertaining to.

[00:27:29] Speaker 00:
And then it goes on to talk about that this also falls within the claim language that the sentences below the quote talk about.

[00:27:40] Speaker 00:
the combined analysis of the S&P 500 and the U.S.

[00:27:43] Speaker 00:
Treasury bond investment.

[00:27:45] Speaker 00:
I think what the examiner is saying is either way, the examiner doesn't see any substantive difference between claim 22 and Sortino.

[00:27:55] Speaker 02:
He's not saying one ordinary skill in the art would have amended, would have known right away to make a little adjustment in Sortino.

[00:28:03] Speaker 02:
That's what KSR allows you to do.

[00:28:05] Speaker 00:
And the board relies on KSR, right?

[00:28:07] Speaker 00:
It's a minor adjustment.

[00:28:07] Speaker 02:
But he doesn't say that.

[00:28:11] Speaker 02:
And the other side isn't making this KSR type argument.

[00:28:15] Speaker 02:
Any virtual associate, first level person, right, working at Goldman Sachs, would pick up Sartino and say, let's do it on two.

[00:28:28] Speaker 00:
I think under KSR.

[00:28:29] Speaker 02:
I mean, his nine other categories that he explains,

[00:28:38] Speaker 02:
somewhere in his declaration.

[00:28:40] Speaker 02:
They're basically other index funds.

[00:28:43] Speaker 02:
He said that we could run this on other index funds.

[00:28:46] Speaker 02:
Where is anybody saying in this record that it would be obvious to make an adjustment to Sortino?

[00:28:54] Speaker 02:
I think it's simple.

[00:28:55] Speaker 00:
It's common sense to some extent.

[00:28:57] Speaker 00:
Isn't it?

[00:28:57] Speaker 02:
The point is... You're telling me it's common sense to you.

[00:29:01] Speaker 02:
We're not reviewing you, ma'am.

[00:29:02] Speaker 02:
We're reviewing the board.

[00:29:03] Speaker 02:
That's right.

[00:29:04] Speaker 02:
And the board is reviewing the examiner.

[00:29:06] Speaker 02:
That's the way it works in this game.

[00:29:08] Speaker 02:
If the examiner said it wrong, if the board can't rely on something the examiner didn't do.

[00:29:16] Speaker 02:
The examiner never made a KSR showing here that you could just tweak.

[00:29:22] Speaker 02:
You could also tweak Sartino to stick in there if you wanted to, the kind of biasing that they're talking about.

[00:29:31] Speaker 02:
But nobody made that argument.

[00:29:34] Speaker 02:
So you came along today.

[00:29:35] Speaker 00:
I think the board is making that argument.

[00:29:38] Speaker 00:
And I think the examiner is making that argument.

[00:29:40] Speaker 02:
Show us where, other than you pointed to the top of page JA6, which is where Judge Toronto was asking you, is there anything more than that?

[00:29:55] Speaker 02:
And you didn't make this KSR amend the reference argument in your brief.

[00:30:04] Speaker 00:
We did rely on KSR.

[00:30:06] Speaker 00:
Or relied on KSR.

[00:30:08] Speaker 02:
You cited KSR in a list of cases, but you didn't frame the argument out to say everybody knows that this investment is obvious because a lot of ordinary skill in the art would tweak Sartino.

[00:30:22] Speaker 00:
Well, Sartino himself, the paragraph that I read, too.

[00:30:25] Speaker 02:
In a setting where we know the claims were amended on purpose to get away from Sartino.

[00:30:30] Speaker 02:
Right?

[00:30:31] Speaker 02:
Isn't that why the amendments were made in the re-exam?

[00:30:35] Speaker 00:
If they really wanted to get away from Sortino, they could have made very specific amendments, right?

[00:30:39] Speaker 00:
This is a very indirect way of trying to get over Sortino, but still maintaining this very large breadth of the claims.

[00:30:47] Speaker 01:
Can I ask you a question that changes subject?

[00:30:49] Speaker 01:
You're page 32, footnote 7, the reference to section 101.

[00:30:54] Speaker 01:
It ends, if I'm remembering right, with a sentence that says something about a reissue application.

[00:30:59] Speaker 01:
Can you just explain what's going on?

[00:31:02] Speaker 01:
I think I've got the right case.

[00:31:06] Speaker 01:
Page 32, footnote 7, you say, by the way, we kind of think there's a section 101 problem here.

[00:31:12] Speaker 01:
I mean, I assume, tell me if I'm wrong, we can't touch 101 here because these are re-exam, both cases are re-exam proceedings and we can't say anything about 101.

[00:31:23] Speaker 01:
But then you end with a sentence that says, invest

[00:31:27] Speaker 01:
may wish to consider addressing this 101 issue in its currently pending reissue application.

[00:31:32] Speaker 00:
There is a currently pending reissue application.

[00:31:34] Speaker 01:
They have on file a reissue application for this patent?

[00:31:38] Speaker 01:
Yes.

[00:31:39] Speaker 01:
Does that affect, I guess, put it most simply, whether we have something to decide here?

[00:31:46] Speaker 00:
Is it moot this case?

[00:31:49] Speaker 00:
There hasn't been a decision on that in the reissue application just yet.

[00:31:53] Speaker 00:
It's pending before the agency.

[00:31:55] Speaker 01:
And how does that work?

[00:31:57] Speaker 01:
There's something, it's been a while, but something in 252 or 251 about surrendering.

[00:32:01] Speaker 00:
That's right.

[00:32:02] Speaker 01:
But that doesn't take effect until later.

[00:32:05] Speaker 00:
That's right, until there's a decision on that reissue application.

[00:32:08] Speaker 02:
And what's the status of the reissue petition?

[00:32:11] Speaker 00:
It's still pending.

[00:32:13] Speaker 02:
Pending in front of the examiner?

[00:32:14] Speaker 00:
Pending in front of the examiner, I believe that's right.

[00:32:18] Speaker 04:
We'll wrap up.

[00:32:19] Speaker 00:
Okay, I guess just the point about

[00:32:23] Speaker 00:
I guess I'll just follow up on the claim 24.

[00:32:27] Speaker 00:
Mr. Quezon started off by saying that the key to his investment... Is this bias parameter?

[00:32:33] Speaker 00:
Yes, the bias parameter.

[00:32:35] Speaker 00:
The key to the bias parameter is this idea of comparing two or more investments.

[00:32:40] Speaker 00:
But what's interesting is that claim 24 is only limited to, according to them, a single investment.

[00:32:46] Speaker 01:
You found another key.

[00:32:48] Speaker 01:
That's right.

[00:32:49] Speaker 00:
I don't know if that really

[00:32:53] Speaker 00:
changes anything here with regards to Claim 24, right?

[00:32:58] Speaker 00:
Because Claim 24 requires a bias parameter in determining... Can I ask you this?

[00:33:10] Speaker 01:
What's your understanding of what the board decided about

[00:33:13] Speaker 01:
what the bias parameter was in Sortino.

[00:33:17] Speaker 01:
It seemed to me there are three possibilities.

[00:33:20] Speaker 01:
One, two, and the combination of one and two.

[00:33:22] Speaker 01:
The scenario definition, the weighting, or somehow the combination of the weighting of the siloed random resampling results for each of the scenarios.

[00:33:35] Speaker 01:
What do you think the board was saying?

[00:33:37] Speaker 00:
The board was relying on both, saying that those both are independent reasons why Sortino discloses a bias parameter.

[00:33:45] Speaker 00:
With regards to the scenarios, what bias parameter is modifying in this amended claim language is determining a degree of randomness.

[00:33:53] Speaker 01:
In the selection of samples, that's the crucial phrase.

[00:33:56] Speaker 00:
In sample selection, right.

[00:33:57] Speaker 00:
That's right.

[00:33:58] Speaker 00:
But this claim, claim 24, makes no distinction between sample selection and sample space.

[00:34:04] Speaker 01:
Right, but the other claims do, and is there any reason to think that suddenly in this claim the, to my mind, quite familiar statistical distinction between defining the sample space and taking the samples is being collapsed?

[00:34:19] Speaker 00:
I think it is because the sample space, according to the way

[00:34:25] Speaker 00:
InVESTPIC defines it is taking samples from the original data set.

[00:34:29] Speaker 00:
So if the original data set is N samples, the probability of picking one out of... You began by saying something defines what?

[00:34:39] Speaker 00:
The way that InVESTPIC defines resampling is that it is sampling from the original data set.

[00:34:45] Speaker 00:
It's the initial selection of samples.

[00:34:49] Speaker 00:
That's their definition in their appeal brief to the world.

[00:34:51] Speaker 01:
After the sample space has been defined.

[00:34:53] Speaker 00:
I don't, that's not, they keep it pretty broad, right?

[00:34:56] Speaker 00:
They don't necessarily say that.

[00:34:57] Speaker 00:
They don't necessarily define it that way in their appeal brief.

[00:35:02] Speaker 00:
And so I just think that that is one way of introducing bias by defining the scenarios and limiting sample selection based on limiting the scenarios.

[00:35:13] Speaker 00:
There's also, there's no real distinction as the board found and the examiner found between assigning percentages and then applying that after sample selection.

[00:35:24] Speaker 04:
Thank you.

[00:35:27] Speaker 04:
Give Mr. Kees some five minutes.

[00:35:33] Speaker 04:
Give me some extra time.

[00:35:36] Speaker 04:
Thank you.

[00:35:37] Speaker 04:
If you need it.

[00:35:39] Speaker 03:
Your Honor, at the outset, I want to address the reissue issue.

[00:35:42] Speaker 03:
A reissue was filed by Invespic in September of 2014 and a

[00:35:51] Speaker 03:
Continuation was filed in June of 2015.

[00:35:53] Speaker 03:
The prior appellees, IBM and SAS, filed a protest where they have argued that the PTO can elect to stay the reissue pending resolution of the two re-exams.

[00:36:10] Speaker 03:
And that's what they've encouraged the PTO to do.

[00:36:15] Speaker 03:
And apparently the PTO seems to have done so because there's been no action since

[00:36:20] Speaker 03:
September of 2014 to now.

[00:36:23] Speaker 03:
So that's the first thing.

[00:36:24] Speaker 03:
The second thing is, Your Honors, this patent expires on January 21st, 2020, and as such, we're seeing a significant reduction in the patent term, and we believe that we're entitled to the claims as they are presented today in this appeal.

[00:36:45] Speaker 03:
the reissue doesn't really help us and it appears to be the case that they're waiting on the resolution of these two re-exams.

[00:36:53] Speaker 01:
Can I ask you about Sortino Declaration Paragraph 22 and the parenthetical about it wasn't relevant because for asset allocation we only needed to measure the covariance between the overall asset categories, e.g.

[00:37:08] Speaker 01:
the entire S&P, Japan, etc.

[00:37:12] Speaker 01:
Why does that, which is different from what the board said, but why does that not indicate that I, Sortino, wanted to do something that in an analysis compared

[00:37:24] Speaker 03:
two different investments, two different things I might go on the market and buy.

[00:37:46] Speaker 01:
each of the two categories, let's call one the entire S&P, let's call one Japan.

[00:37:51] Speaker 01:
I mean, what Japan is maybe the Japanese stocks on the S&P or something.

[00:37:54] Speaker 01:
Why aren't those two investments?

[00:37:57] Speaker 01:
Not the individual stocks, but there's entire S&P and S&P Japan, if that's what he's talking about.

[00:38:05] Speaker 03:
What he's referring to are asset categories.

[00:38:07] Speaker 03:
What he says in the article is stocks

[00:38:11] Speaker 03:
bonds.

[00:38:12] Speaker 03:
He's not talking about two different investments.

[00:38:14] Speaker 03:
He's talking about broad asset categories, Your Honor.

[00:38:18] Speaker 01:
How was he measuring the covariance between those two categories?

[00:38:23] Speaker 03:
What he is simply saying is that to the extent that we need to, we could perhaps look at a single investment that is a single asset category

[00:38:37] Speaker 03:
And here he says it is not relevant because for asset allocation, we only need to measure the covariance between the asset categories.

[00:38:46] Speaker 03:
So he's saying to the extent that I have to do anything, it's the asset categories.

[00:38:50] Speaker 03:
I'm not looking at the individual investments.

[00:38:52] Speaker 03:
And most importantly, Sortino does absolutely nothing to maintain the... Wait a second.

[00:38:58] Speaker 02:
The entire S&P is a single investment.

[00:39:01] Speaker 02:
You've been saying that.

[00:39:03] Speaker 03:
Yeah, it's a single investment, yes.

[00:39:04] Speaker 03:
Your honor, because that's what you get.

[00:39:06] Speaker 03:
You get a share in a mutual fund.

[00:39:07] Speaker 03:
That's all you get.

[00:39:08] Speaker 03:
You don't get any ownership in the underlying securities.

[00:39:11] Speaker 02:
But what Judge Toronto was saying is you've got an entire S&P and then there's apparently a breakdown of S&P Japan, S&P someplace else.

[00:39:21] Speaker 02:
And he somehow is actually measuring the covariance between those two things.

[00:39:26] Speaker 02:
Tell me in English language what that is.

[00:39:29] Speaker 02:
When I measure the covariance between the entire S&P and the S&P Japan, what do I get?

[00:39:37] Speaker 03:
A number?

[00:39:40] Speaker 03:
Right, you do get a number, but his only point is

[00:39:43] Speaker 03:
that as a user and as an investor, and that's the perspective of the 291 patent, is that as a user you have a couple of investments and you want to know how they track with respect to each other so that you have diversification.

[00:39:55] Speaker 03:
So you don't end up with having ownership of one stock and then ownership of another stock and they actually seem to behave the same way.

[00:40:02] Speaker 03:
And that's the whole temporal correlation idea in column two of the patent.

[00:40:08] Speaker 02:
The claim language is talking about investments, two investments, right?

[00:40:12] Speaker 02:
And if you bought the entire S&P, that's one investment.

[00:40:16] Speaker 02:
And if you bought S&P Japan, that's another investment, right?

[00:40:19] Speaker 03:
Right, but what he's simply saying here is that he's saying that I'm comparing the large asset categories.

[00:40:24] Speaker 03:
I'm not comparing a mutual fund that is basically one investment and then maybe a stock that's another investment.

[00:40:32] Speaker 01:
I must say, the more you talk, the more I'm worried about this.

[00:40:39] Speaker 01:
Can you explain?

[00:40:40] Speaker 01:
He says we're measuring covariance of two different assets, not individual stocks.

[00:40:47] Speaker 01:
Each asset is a category.

[00:40:49] Speaker 01:
Is he doing that by something other than the application of his resampling analysis to those two assets?

[00:40:59] Speaker 01:
No, Your Honor.

[00:41:00] Speaker 03:
He's doing it through that.

[00:41:02] Speaker 03:
The only thing he's doing is he's bootstrapping individual categories.

[00:41:09] Speaker 01:
How does he measure covariance between two by doing that?

[00:41:14] Speaker 02:
Why did he say we needed

[00:41:18] Speaker 02:
That word seems to me to be important in this discussion we're having.

[00:41:22] Speaker 02:
He said we needed to measure this covariance between two different things.

[00:41:29] Speaker 02:
Right.

[00:41:29] Speaker 02:
Why did he need to do it?

[00:41:31] Speaker 03:
Well, I think what he's simply trying to say is he's trying to say that to the extent we need to do anything, we're trying to see how these two asset categories move together.

[00:41:42] Speaker 03:
To the extent we need to do anything, that's all we're trying to do.

[00:41:44] Speaker 03:
And that's all he's trying to say.

[00:41:46] Speaker 03:
A covariance is simply a statistical term wherein you can have positive or negative covariance, where you may have categories of assets, for example, that might move with respect to each other.

[00:42:02] Speaker 03:
And that's really all that it is.

[00:42:04] Speaker 01:
What he is saying here is I'm not trying... But what I'm kind of beginning to understand or misunderstand, which is I guess my problem right now,

[00:42:12] Speaker 01:
is that the only analysis he describes or refers to in the paper, the actual piece of prior art, is resampling.

[00:42:24] Speaker 01:
I understand how you get covariance out of that, but how do you, so doesn't that suggest that he is describing the application of resampling analysis to two investments,

[00:42:39] Speaker 01:
S&P worldwide and S&P Japan.

[00:42:42] Speaker 01:
Those are two assets, I think you agreed, and your position sort of depends on that.

[00:42:47] Speaker 01:
But why does this not say, this is what I was doing?

[00:42:53] Speaker 03:
Well, that's not what he's saying here.

[00:42:55] Speaker 03:
He's simply saying that to the extent we needed to do anything at all, we would only need to look at these broad asset categories.

[00:43:02] Speaker 03:
We're not looking at individual investments.

[00:43:03] Speaker 02:
Yeah, but the broad asset categories happen to be investments.

[00:43:06] Speaker 02:
That's your problem.

[00:43:08] Speaker 02:
But he's clearly saying, I don't care anything about the stocks that make up the 500 or that make up the Japan S&P.

[00:43:17] Speaker 02:
I don't care about that.

[00:43:19] Speaker 02:
And we all agree with that.

[00:43:21] Speaker 02:
But if he's looking if the Japan S&P and the big S&P 500 domestic are two different investments, which we think they are, they seem to be the middle.

[00:43:34] Speaker 03:
Well, he calls them asset categories.

[00:43:36] Speaker 03:
He says they're big categories.

[00:43:39] Speaker 03:
And he's saying, I'm comparing these categories.

[00:43:41] Speaker 02:
I'm really not trying.

[00:43:43] Speaker 02:
Why does he need at all to look at S&P Japan?

[00:43:48] Speaker 02:
If what he is trying to do is run his resampling and his bias everything on just the old good old S&P 500, why does he need to look at a second investment?

[00:43:58] Speaker 02:
Well, he doesn't need to.

[00:44:00] Speaker 02:
He says right here, we need it.

[00:44:02] Speaker 02:
We need it.

[00:44:04] Speaker 03:
Okay.

[00:44:06] Speaker 03:
What he's basically saying here is it is not relevant for asset allocation because we only needed to look at the broad categories.

[00:44:13] Speaker 03:
That's all he's saying.

[00:44:16] Speaker 03:
And so he doesn't talk about doing... Why is he looking at the covariance?

[00:44:20] Speaker 02:
If he said all we need to look at, you know, is we need to look at the asset categories.

[00:44:27] Speaker 02:
But why is the covariance between the categories important?

[00:44:33] Speaker 03:
And what I conclude from that is that his covariance is, of course, simply saying how different distributions move.

[00:44:39] Speaker 02:
Let me come back to where I was in the beginning of the other argument and we have what we're trying to do here is to have a factual finding about what Sortino teaches.

[00:44:50] Speaker 02:
And let's assume that the board had said in its opinion, instead of the language it uses, we read

[00:44:56] Speaker 02:
paragraph 22 of Sortino's declaration to mean that his system is capable of looking at the same time at two investors.

[00:45:06] Speaker 03:
Well, Your Honor, there is no teaching in Sortino that discusses two investments or comparing investments or keeping track of how investments behave with each other.

[00:45:16] Speaker 03:
That is why he made the same comment in the same declaration.

[00:45:19] Speaker 03:
The 291 system is entirely different.

[00:45:22] Speaker 03:
That's why he made that comment is because I'm not trying to

[00:45:26] Speaker 03:
do what the 291 system is doing, which is basically to try to provide guidance to an investor and to make sure that there's real diversification in his portfolio.

[00:45:35] Speaker 02:
Right, but just like the specification is always the best source of information on what the claims mean, why isn't Sertino's declaration the best evidence of what his disclosure means?

[00:45:48] Speaker 02:
We've got a little two-page article he published in a finance magazine, right, and that's the invalidating reference.

[00:45:56] Speaker 02:
But in his declaration, he's trying to explain to us what that reference means.

[00:46:02] Speaker 03:
Right.

[00:46:03] Speaker 03:
And the reference stands for itself.

[00:46:07] Speaker 03:
And we can see that the reference is just four pages, and it barely discusses all these things.

[00:46:12] Speaker 03:
But in any case, Sortino makes very clear that he was not trying to, in any way, talk about things like temporal correlations.

[00:46:21] Speaker 03:
Just a couple other really quick, Your Honor.

[00:46:24] Speaker 03:
Really, really quick.

[00:46:25] Speaker 03:
Yes.

[00:46:26] Speaker 03:
I want to point out that they have mentioned that the patent only talks about embodiments and doesn't talk about the whole invention.

[00:46:33] Speaker 03:
Column two explicitly talks about the invention as a whole and talks about how important temporal correlation is.

[00:46:39] Speaker 03:
Column two also talks about how a query corresponds to multiple parameters.

[00:46:44] Speaker 03:
So you have a query that can then be linked.

[00:46:48] Speaker 04:
Five more seconds.

[00:46:50] Speaker 03:
So, Your Honor, it ultimately comes down to the fact that the Board failed to provide a claim construction.

[00:46:55] Speaker 03:
As a result, we're trying to figure out what the Board meant with respect to these terms.

[00:46:59] Speaker 03:
Thank you, Your Honor.

[00:47:04] Speaker 04:
I'll just say it seems perfectly obvious to me that when I have two stocks, one always goes down when the other goes down.