[00:00:03] Speaker 03:
The next case for argument is 161755 Mearson versus Google.

[00:00:40] Speaker 03:
Is Mr. Jatanovic?

[00:00:43] Speaker 01:
Mr. Jatanovic.

[00:00:44] Speaker 03:
Jatanovic.

[00:00:45] Speaker 01:
You would be the first one.

[00:00:47] Speaker 01:
All right.

[00:00:48] Speaker 01:
This is every day.

[00:00:50] Speaker 01:
Please proceed.

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

[00:00:52] Speaker 01:
Mr. Jatanovic here on behalf of Appellant Mike Marzone.

[00:00:55] Speaker 01:
I'm also here with my colleague, Tom Lurie.

[00:00:58] Speaker 01:
And today we ask that this court overturn the board's obviousness decision that Mr. Marzone's, the relevant claims of Mr. Marzone's

[00:01:10] Speaker 01:
patent are unpatentable in view of the bill and Finceth reference.

[00:01:16] Speaker 01:
Specifically, the board's finding that there was no teaching away in the Finceth reference is not supported by substantial evidence.

[00:01:25] Speaker 01:
The foundation for the board's finding was that, and I quote, that Finceth had no suggestion that descriptive text should be replaced, as well as

[00:01:36] Speaker 01:
Fincett does not suggest that descriptive text should be abandoned wholesale.

[00:01:41] Speaker 01:
If you look at the law of teaching away, it's whether a reference would lead a person voting a skill in the art to a path that's divergent from the path that was taken by the applicant.

[00:01:53] Speaker 01:
And with Fincett, and excuse me, I'd like to quote the Dupuy-Spine v. Metronik, and that's 567 F third,

[00:02:05] Speaker 03:
I know.

[00:02:06] Speaker 03:
Can we just roll back a little bit?

[00:02:08] Speaker 03:
Sure, sure.

[00:02:09] Speaker 03:
And that's that, I mean, there's nothing in FinCETH that says that text descriptors shouldn't be used with visual graphics.

[00:02:18] Speaker 03:
I mean, I don't think anybody's disputing that the emphasis there is on the utility and the importance of visual graphics, but it doesn't suggest, does it, or state that you won't use, you shouldn't use, there's some problem with using text descriptions in connection with visual graphics.

[00:02:35] Speaker 01:
It does state that there are issues with the descriptive text.

[00:02:41] Speaker 01:
If you look at what Fincett taught as a whole, it taught that the descriptive text was unreliable, and it recognized that problem of the search results with the text, and Fincett chose to replace that text with the graphical summary information.

[00:02:56] Speaker 04:
Well, it says often search results are cursory or cryptic, right?

[00:03:01] Speaker 04:
So then why wouldn't you just supplement the information as opposed to replacing it altogether?

[00:03:07] Speaker 04:
Why, why do you read Finceth as replacing the information as opposed to supplementing it?

[00:03:14] Speaker 01:
Well, when you read Finceth, you recognize that it's unreliable, that Finceth thought that the text was unreliable.

[00:03:19] Speaker 01:
And in every embodiment Finceth shows that he replaced the text with the graphical summary information.

[00:03:25] Speaker 01:
If you look at figures five, seven, and eight, you only see the hyperlinks and you see

[00:03:31] Speaker 01:
graphical summary information.

[00:03:33] Speaker 01:
There's no text summaries in any embodiment inference.

[00:03:36] Speaker 04:
But if I said your presentation is cursory, okay, wouldn't you then take the opportunity to give me more information?

[00:03:46] Speaker 04:
Isn't that what you would do?

[00:03:48] Speaker 04:
You wouldn't necessarily say, okay, well, forget everything I said before, Your Honor, right?

[00:03:52] Speaker 04:
Because it doesn't say the information is misleading or wrong or inaccurate.

[00:03:57] Speaker 04:
Those sorts of things might lead an ordinary person to say, well, then that information shouldn't be included.

[00:04:02] Speaker 04:
But the fact that something is cursory seems to me, doesn't it, to quite strongly imply it needs to be supplemented and not necessarily that it needs to be replaced.

[00:04:12] Speaker 04:
And the bottom line is, even if I thought, well, maybe it means replaced, what's my standard of review here?

[00:04:22] Speaker 01:
So with respect to that,

[00:04:26] Speaker 01:
Fin, in every, like I said, in every embodiment, FinSense replaced the text.

[00:04:30] Speaker 01:
The issue with FinSense and reliability, the problem is FinSense was a machine and didn't know what, what text was reliable or not.

[00:04:38] Speaker 01:
So rather than showing unreliable text.

[00:04:39] Speaker 04:
Does it say reliable?

[00:04:40] Speaker 04:
Does it say the text was unreliable or does it only criticize it as cursory, which doesn't imply unreliable, but only implies incomplete or not sufficient?

[00:04:49] Speaker 01:
It criticizes both cursory and cryptic.

[00:04:52] Speaker 04:
No cursory.

[00:04:53] Speaker 04:
What it says is, cursory if not cryptic.

[00:04:57] Speaker 04:
But again, the cryptic, do you think cryptic implies unreliable?

[00:05:00] Speaker 04:
Should I interpret that word as, as, as meaning unreliable?

[00:05:05] Speaker 01:
Sure.

[00:05:06] Speaker 04:
I think when you think the definition of cryptic is unreliable, it's cryptic means it's not able to be discerned, difficult to discover or appreciate.

[00:05:19] Speaker 04:
So,

[00:05:20] Speaker 04:
That doesn't mean unreliable, right?

[00:05:22] Speaker 04:
Unreliable implies wrong.

[00:05:24] Speaker 04:
But cryptic, again, it seems to me is just an extreme word for the same notion of cursory.

[00:05:29] Speaker 01:
I think in the context of search engines, cryptic is unreliable.

[00:05:34] Speaker 01:
Cryptic text summaries are unreliable.

[00:05:35] Speaker 04:
But you think so.

[00:05:37] Speaker 04:
But again, this is substantial evidence.

[00:05:38] Speaker 04:
And you're not evidence, number one.

[00:05:40] Speaker 04:
And number two, I'm reviewing a body that is an expert agency that already made a decision, aren't I?

[00:05:47] Speaker 01:
That's correct.

[00:05:48] Speaker 01:
But I think when you look at Fintzeth as a whole, and even Hill also supports the fact that the text is gibberish.

[00:05:55] Speaker 01:
See, Fintzeth recognized that the problem was that the text was cursory and cryptic and unreliable and chose to replace that text with the graphical summary information.

[00:06:05] Speaker 01:
I'd just like to compare the facts of Fintzeth.

[00:06:09] Speaker 01:
It's very similar to the Dupuy spine, which I mentioned earlier.

[00:06:13] Speaker 01:
In Dupuy's spine, the prior reference there, Puno,

[00:06:18] Speaker 01:
taught that there was rigid screws, and rigid screws had unreliability inside of the human body, that they were susceptible to breaking, and instead taught that you should use a compressible member.

[00:06:30] Speaker 01:
And similar to the case of FINSA, where you have this descriptive text that's unreliable.

[00:06:35] Speaker 01:
You don't know what could be used.

[00:06:37] Speaker 01:
It's who's spine taught, let's get rid of the rigid screws, replace it with compressible members.

[00:06:45] Speaker 01:
And that was found to be teaching away.

[00:06:46] Speaker 01:
FINSA taught that.

[00:06:48] Speaker 01:
whose descriptive texts are unreliable, we should replace it with the graphical summary information.

[00:06:54] Speaker 03:
Does it use the word replace?

[00:06:56] Speaker 03:
I mean, I thought there's something that says enhance, like it enhances a user's experience compared to conventional search results when you use the visual previews.

[00:07:07] Speaker 03:
But that also suggests that you're not completely wholesale discarding or disregarding or teaching away from using the text.

[00:07:16] Speaker 03:
It's just that you're trying to enhance the experience by the addition of something else, right?

[00:07:21] Speaker 01:
It's accurate.

[00:07:22] Speaker 01:
It doesn't say replace verbatim in the text of PHNSA.

[00:07:25] Speaker 01:
But if you look at what PHNSA is about and what it shows in every embodiment, even if you look at the title of PHNSA, it's called a graphical search engine visual index.

[00:07:35] Speaker 01:
It's about graphics and visual.

[00:07:37] Speaker 01:
And then you have every embodiment of PHNSA discarding the text and replacing it with the graphical summary information.

[00:07:45] Speaker 01:
And similar to the pew spine, where they got rid of the frigid member, and in place of the compressible member, FINSA got rid of the descriptive text in place of the graphical summary information.

[00:08:06] Speaker 01:
And one thing I'd like to point out is that FINSA recognized that there was this text out there.

[00:08:11] Speaker 01:
We're sitting here today.

[00:08:13] Speaker 01:
We're arguing about obviousness.

[00:08:14] Speaker 01:
And Finceth recognized that there was text out there.

[00:08:17] Speaker 01:
But it was problematic, and he chose to replace it.

[00:08:20] Speaker 01:
Finceth took one of, if you go back to 1998 or 2001, I'm sorry, the filing of the PEN application year, one of skill in the art, Finceth led you down that divergent path that said you should replace the descriptive text with the graphical summary information because they're unreliable.

[00:08:41] Speaker 01:
Are there any further questions?

[00:08:42] Speaker 01:
I'll reserve my time for rebuttal.

[00:08:44] Speaker 01:
OK, fine.

[00:08:44] Speaker 01:
Thank you.

[00:08:57] Speaker 02:
Good morning, Your Honor, and may it please the court.

[00:09:00] Speaker 02:
As the court is aware, there's only one very narrow issue on this appeal, and that's whether substantial evidence supports the board's factual finding.

[00:09:09] Speaker 02:
that there was no teaching away in the Finceth reference.

[00:09:13] Speaker 02:
I think the court's questions have already gotten to the heart of the case.

[00:09:16] Speaker 03:
What's your response to your friend's argument that the fair reading of Finceth is that it's talking about replacing text with the visual graphics, and that's sufficient under Dupuis for a teaching away conclusion?

[00:09:31] Speaker 02:
So two answers to that.

[00:09:32] Speaker 02:
First of all, we're on substantial evidence review, and the board has already made a particular finding.

[00:09:37] Speaker 02:
In the Depew case, that was the finding of the district court that was upheld by this court on appeal.

[00:09:44] Speaker 02:
The CUNO reference told the world that the screw, using a rigid screw in the spinal implant was prone to failure, and you wouldn't use a rigid screw.

[00:09:57] Speaker 02:
And that's exactly what the Depew patent did, is it used a rigid screw.

[00:10:01] Speaker 02:
So the first answer is substantial evidence.

[00:10:04] Speaker 02:
The board's already found that.

[00:10:07] Speaker 02:
What you won't find in the Finseth reference is any words like replace.

[00:10:13] Speaker 02:
You won't even find the words unreliable.

[00:10:16] Speaker 02:
That's attorney argument.

[00:10:17] Speaker 02:
That's the conclusion that my friend has drawn from the reference and whether or not that could support a finding had the board made such a finding.

[00:10:29] Speaker 02:
Cases from this court like Axo make very clear that the fact that a reasonable person might have arrived at a different conclusion.

[00:10:36] Speaker 02:
is not enough for substantial evidence review.

[00:10:39] Speaker 02:
Now, Judge Moore's comments to my friend with regard to the language of cursory, if not cryptic, really do sort of bring this to a head, and really do show a difference between the pew spine in this case.

[00:10:54] Speaker 02:
The technology issue here is about information.

[00:10:57] Speaker 02:
More information is better than less information.

[00:11:01] Speaker 02:
The language offensive at column 10 is to make

[00:11:06] Speaker 02:
the Internet searching experience better, much faster, much easier, even more advantageous.

[00:11:12] Speaker 02:
Those are actual quotes from Column 10 of VINCEF.

[00:11:16] Speaker 02:
There's no risk of breaking off a screw in the body and having serious physical problems if you include the associated text.

[00:11:26] Speaker 02:
In fact, if you look at, we have an excerpt of the Hill reference from the, that's the Internet for Dummies,

[00:11:32] Speaker 03:
uh... reference to have a particular way to have to prove that it kills someone well of course that's right if if if there's enough disparagement if they say this is cursory this is unreliable this is a far better way of doing it than this way this what you know and and disparage that you don't you know it's not that right but but this is never makes it an either or choice since it is is talking about adding a textual window and

[00:12:02] Speaker 02:
The case that's being made against us here is that there's silence in FinCIF about whether or not you could use the text.

[00:12:11] Speaker 02:
There's no teaching in FinCIF that says don't use the text.

[00:12:15] Speaker 02:
There's no teaching in FinCIF that says it's unreliable.

[00:12:19] Speaker 02:
You won't find that word, and you won't find the equivalent of that word in FinCIF.

[00:12:24] Speaker 02:
And quite frankly, what my friend's position is on the other side is that we have to have an anticipating reference in order to have

[00:12:31] Speaker 02:
the teaching away.

[00:12:31] Speaker 02:
And that's, of course, not the law in obviousness, as this Court's decisions in Allergan, in Galderma, in Syntex have made very clear.

[00:12:39] Speaker 00:
You don't really want to direct us to a publication entitled Internet for Dummies, do you?

[00:12:46] Speaker 02:
You know, actually, that is exactly... No, you do want to read it yourself.

[00:12:49] Speaker 02:
That's exactly as simple as this is, Your Honor.

[00:12:54] Speaker 02:
There is no teaching away.

[00:12:55] Speaker 02:
But the point I was going to make about the Hill reference

[00:12:57] Speaker 02:
And we have an excerpt from the Hill reference at page 31 of our brief.

[00:13:01] Speaker 02:
And there's a Lycos search that is set forth in the Hill reference that has to do with the left back.

[00:13:10] Speaker 02:
That's the search term that was used in Lycos.

[00:13:12] Speaker 02:
And you'll see that in the first three entries on the Lycos search that's shown in Hill, it's clear, at the very least, even from that cursory accompanying text,

[00:13:26] Speaker 02:
that the Left Bank search result has to do with a restaurant in California.

[00:13:31] Speaker 02:
Well, here's why that's a beneficial addition, and Vincent doesn't teach away from that.

[00:13:39] Speaker 02:
If you know, for example, that you're looking for information about the Left Bank in Paris, then you won't bother mousing over the first three entries because they deal with a restaurant in California.

[00:13:50] Speaker 02:
If, on the other hand, you are looking for information about a restaurant in California,

[00:13:54] Speaker 02:
then you will mouse over that.

[00:13:56] Speaker 02:
And if you didn't have that associated text, then your internet experience would be all the poorer for it.

[00:14:04] Speaker 02:
And that's exactly the opposite of what FinCIF teaches, which is making the internet experience richer, faster, much faster, much easier, even more advantageous.

[00:14:15] Speaker 02:
Unless the court has further questions, I think I can rest on the argument in the briefs at this point.

[00:14:21] Speaker 03:
Thank you.

[00:14:22] Speaker 02:
Thank you.

[00:14:34] Speaker 01:
Thank you very much.

[00:14:35] Speaker 01:
I'd like to go back to the unreliability issue with FinCET.

[00:14:40] Speaker 01:
You asked if FinCET ever states that the text is unreliable.

[00:14:44] Speaker 01:
And while it doesn't say verbatim that the text is unreliable, the issue with having this text that's sometimes encrypted is that FinCET didn't understand what text to replace or what not to replace.

[00:14:57] Speaker 01:
So FinCET took you down that, recognized this problem, it took you down the path to replace

[00:15:03] Speaker 01:
all of the text with what Fitseth thought was the better, more advantageous graphic summaries.

[00:15:09] Speaker 01:
And just like in DePuy, where DePuy doesn't come out and say that these rigid members are unreliable verbatim.

[00:15:17] Speaker 01:
But if you could read DePuy in the context, and you look at Fitseth in its context, one of Spill in the Art would recognize that the summary text was unreliable.

[00:15:33] Speaker 01:
Furthermore, I'd like to point out that there was a question with respect to whether we have any evidence of disparagement or criticism.

[00:15:48] Speaker 01:
The board and its decision pointed to Google's recognition that, and I quote from Appendix 18, that Google points to passage of Fincett describing the problem to be solved.

[00:15:59] Speaker 01:
Namely, the known search engines return results in the form of a list of hyperlinks with cursory, if not initial tech, presentation of those web pages.

[00:16:08] Speaker 01:
So the board recognized, Google recognized, that the text was a problem with respect to the search engines because of the unreliability.

[00:16:16] Speaker 01:
Now, the question we're presenting is whether things have taught away.

[00:16:19] Speaker 01:
And we think that because there's no embodiments of things that are utilizing the descriptive text, it disparages the descriptive text.

[00:16:30] Speaker 01:
what it taught, and the fact that Fincett had the descriptive text made available to him at the time of the invention.

[00:16:35] Speaker 01:
He recognized the text was there, just like in De Puey, where the prior art recognized that the bridging members were there.

[00:16:41] Speaker 01:
It took you down a different path than that, which Mr. Marcellin took you down.

[00:16:50] Speaker 01:
Any further questions?

[00:16:53] Speaker 03:
Thank you.

[00:16:55] Speaker 03:
We thank both sides.

[00:16:56] Speaker 03:
And the case is submitted.

[00:16:57] Speaker 03:
That concludes our proceedings.