[00:00:00] Speaker 01: 90, Micrographics, LLC, against Google and others. [00:00:04] Speaker 01: Mr. Wilson. [00:00:17] Speaker 03: May it please the court, Douglas Wilson of Heim Pena Korsch, for the Patent Donor Appellant Micrographics. [00:00:23] Speaker 03: Your Honors, I would like to make just four quick points. [00:00:26] Speaker 03: I'd like to start with the construction of external shape stored outside the computer program. [00:00:31] Speaker 03: Micrographics contended before the Board and before this Court that the construction of external shape stored outside the computer program was a mistake, was erroneous. [00:00:41] Speaker 03: In particular, because the Board failed to take account of statements in the specification that characterized the invention as [00:00:47] Speaker 03: comprising the capability of adding shapes without modifying the underlying computer program. [00:00:53] Speaker 00: Even if you're right about the claim construction, wasn't the testimony undisputed that Walton doesn't require a modification of the host computer, whatever you want to call it? [00:01:07] Speaker 03: No, Your Honor, that's not correct. [00:01:10] Speaker 00: We'll ask or testify to that, right? [00:01:12] Speaker 03: Lastra did testify to that. [00:01:14] Speaker 03: The board actually was presented with that point. [00:01:17] Speaker 03: We argued that under our construction, we should prevail, and we had expert testimony to that effect. [00:01:23] Speaker 03: The board refused to make a finding on that point. [00:01:25] Speaker 00: Where's the expert testimony that contradicts what Lastra said? [00:01:30] Speaker 03: Well, that wasn't an issue that the board actually addressed. [00:01:33] Speaker 00: The board refused to address it. [00:01:35] Speaker 00: There's a record. [00:01:36] Speaker 00: There's a record here. [00:01:37] Speaker 00: You say there was conflicting testimony. [00:01:40] Speaker 00: that contradicted what Lester said. [00:01:41] Speaker 00: Where is the conflicting testimony? [00:01:44] Speaker 03: I'll have to go back and look and see if we actually included that portion of the record, because it was not something that the board... Well, I mean, I can't just take your word for it. [00:01:50] Speaker 03: No, I understand, Your Honor. [00:01:52] Speaker 03: I'll look during the break and see if I can locate that in the record that we've submitted. [00:01:56] Speaker 03: But, Your Honor, that was not a question that the board addressed. [00:02:00] Speaker 00: It was not a finding that the board made. [00:02:01] Speaker 00: Well, I understand. [00:02:02] Speaker 00: But even if the record were undisputed on this, a remand wouldn't be necessary, would it? [00:02:10] Speaker 03: If the record were undisputed, that's correct, Your Honor, but the record is not undisputed. [00:02:15] Speaker 03: OK, so that's the question. [00:02:17] Speaker 03: But I can at least find the citation in our brief before the board where we cited the testimony that showed that this was disputed. [00:02:25] Speaker 03: The board expressly refused to make a finding on that. [00:02:28] Speaker 03: It refused to resolve the conflict between our experts. [00:02:31] Speaker 01: OK, proceed. [00:02:32] Speaker 01: If need be, you can make a separate submission. [00:02:35] Speaker 01: Sure, your honor. [00:02:37] Speaker 03: So back to the construction of external shapes stored outside the computer program, the board gave three reasons for refusing to adopt the portions of the specification that characterize the invention in the way I described. [00:02:50] Speaker 03: First, it said the specification attributes that to an architecture. [00:02:56] Speaker 03: With all due respect to the board, the external shapes with external capabilities is the architectural feature that incorporates that functionality. [00:03:04] Speaker 03: The board next said that functionality is attributable to a capability. [00:03:11] Speaker 03: Well, the capability is part of the external shape. [00:03:13] Speaker 03: So the board's analysis undermined its own conclusion. [00:03:17] Speaker 03: Finally, the board said that functionality is attributable to shape collection modules, which are, in fact, external shapes. [00:03:24] Speaker 03: Again, the board's analysis undermined its own conclusion. [00:03:27] Speaker 03: So there are many, many statements in the specification pointing to this. [00:03:29] Speaker 03: And we contend, Your Honors, if [00:03:33] Speaker 03: This court believes that the board erred on the construction of external shape. [00:03:39] Speaker 03: The case should at least be vacated and remanded. [00:03:43] Speaker 04: Including as to the motion to amend? [00:03:46] Speaker 03: So the motion to amend is contingent upon the finding of anticipation. [00:03:50] Speaker 04: And the rejection, as I understand it, by the board was contingent on its earlier anticipation finding as to the unamended claim. [00:03:59] Speaker 04: So if that got vacated, then so would the ruling on the motion to amend. [00:04:03] Speaker 03: That's correct, Your Honor, but I would also like to address three additional points to the motion to amend. [00:04:08] Speaker 03: First, the construction of external shape templates. [00:04:11] Speaker 03: So we proposed substitute claims for the two independent claims. [00:04:14] Speaker 03: The substitute claims added the limitation that the computer program be operable to delegate the production of graphic images. [00:04:20] Speaker 00: Your argument is that it has to be generic, right? [00:04:23] Speaker 03: That's correct, Your Honor. [00:04:26] Speaker 00: That's the dispute. [00:04:27] Speaker 03: The dispute is [00:04:29] Speaker 03: micrographics contends it needs to be a generic interface and the whole point of adding that limitation was to try and capture the concept that the board refused to adopt as part of its construction of external shape. [00:04:41] Speaker 00: Okay, but the problem I have is where is there language in the specification or prosecution history, whatever, that says a template that is generic? [00:04:55] Speaker 03: The specification, and I can point your honor to specific passages if you would like, but the specification expressly describes the external shape template, which is the limitation being construed as comprising an external action template and an external symbol template. [00:05:10] Speaker 00: Okay, but where does it say it's generic? [00:05:13] Speaker 03: So what the specification says, [00:05:34] Speaker 03: is for example at column 7, lines 32 to 37, the specification describes the external symbol method as generic external symbol methods. [00:05:46] Speaker 03: And the reason for that explanation is that the external symbols are intended to [00:05:53] Speaker 03: or the external shape template is intended to give the computer program the capability of accessing shapes and capabilities that are completely unknown to the computer program. [00:06:03] Speaker 00: Yeah, but this isn't talking about the template, right? [00:06:07] Speaker 03: It is, in fact, Your Honor. [00:06:09] Speaker 03: It's describing the external symbol methods. [00:06:11] Speaker 03: These methods are contained within the external symbol template, which is part of the external shape template. [00:06:17] Speaker 03: As I mentioned, the external... How do I know that? [00:06:19] Speaker 03: Because the specification spells that out, Your Honor. [00:06:25] Speaker 00: But where does it tell me that this is referring to the template? [00:06:46] Speaker 04: Is this just the figure that you're referring to? [00:06:48] Speaker 04: Because the box around those two external symbols and actions is the template. [00:06:54] Speaker 03: That is part of it, Your Honor, but it's also in the specification, it's also spelled out. [00:07:00] Speaker 03: If you look at column five, line 59, says for shake 360 external action template, 332 points to external action, an external symbol template points to external symbol. [00:07:19] Speaker 04: And so is your suggestion that because the external symbol [00:07:23] Speaker 04: Can it be generic? [00:07:25] Speaker 04: The template has to be generic too. [00:07:27] Speaker 03: So what is described here is an architecture in which you have an external shape template. [00:07:32] Speaker 03: It's split up into symbols and actions. [00:07:35] Speaker 03: The symbols and actions each consist of an interface. [00:07:39] Speaker 03: That interface consists of a set of generic software methods, routines, that allow you to access, that give you the capability of sending, for example, commands or data to the shapes [00:07:53] Speaker 03: The computer program doesn't know what the shapes are going to do with them. [00:07:56] Speaker 03: So what the specification says is those methods are generic in the sense that we're talking to an unknown shape with unknown capabilities. [00:08:04] Speaker 03: But the specification says the capability is exhaustive. [00:08:08] Speaker 03: It gives you the capability of communicating to shapes. [00:08:10] Speaker 03: You don't know what those shapes are or what they can do, but you have the capability of communicating exhaustively and allowing those shapes to do whatever it is they do with data that's input to the computer program. [00:08:23] Speaker 03: So the generic interface allows the passing of input data back and forth, input data to the shapes and response data back from the shapes to the computer program to allow them to do whatever they do without the computer programming having to know how or what the shapes are doing. [00:08:39] Speaker 03: That's what's described. [00:08:40] Speaker 00: Is there any expert testimony that says what you're telling us? [00:08:45] Speaker 03: Is there any expert testimony? [00:08:47] Speaker 03: This would be in the motion to amend. [00:08:51] Speaker 03: Let me look at the, I believe there is. [00:08:54] Speaker 03: I believe our expert, Mr. Kitchen, opined on this, but I'll have to check and confirm. [00:08:59] Speaker 03: But in any event, the specification says it right here in column five and column six. [00:09:04] Speaker 03: It explains in great detail exactly what I'm telling you. [00:09:09] Speaker 03: But if I may make a few final points on the motion to amend. [00:09:14] Speaker 03: The board found that the amended claims were unpatentable under its own construction. [00:09:21] Speaker 03: But under either construction, the board's finding of obviousness or its conclusion of obviousness was unsupported by the evidence that was before it. [00:09:29] Speaker 03: What the board did was it said, here's Walton. [00:09:32] Speaker 03: Walton discloses everything except a template. [00:09:35] Speaker 03: If I can find a template anywhere, [00:09:37] Speaker 03: then I can combine that with Walton, and you've got obviousness. [00:09:40] Speaker 04: Well, I didn't quite say that. [00:09:41] Speaker 04: You'd find it in a place that they found a skilled artisan would have looked to combine it with. [00:09:49] Speaker 03: Right. [00:09:50] Speaker 03: But the whole reason for the combination is Walton says it can be implemented in C++, and here's a manual that refers to C++. [00:09:59] Speaker 03: The templates that are described in Stroudstrup don't accomplish what's described here in columns five and six of this specification. [00:10:06] Speaker 03: Because they're not generic. [00:10:07] Speaker 03: Not only that, the templates that are described in Stroudstrup are actually templates for code reuse. [00:10:13] Speaker 03: If I have a function that I want to use over and over again, I can make a template and it will apply to various data types and various applications and I only have to write that code once. [00:10:23] Speaker 03: Code reuse, that's exactly what they said. [00:10:25] Speaker 03: That is not what's described here as the external shape template. [00:10:29] Speaker 03: The external shape template is for accessing unknown code with unknown capabilities. [00:10:34] Speaker 03: That is precisely, the interface is even described as I unknown. [00:10:38] Speaker 03: That's what is described in the specifications. [00:10:40] Speaker 03: That's what the external shape template does. [00:10:43] Speaker 03: And that's why the board's obviousness determination is not supported by substantial evidence. [00:10:48] Speaker 03: There's no indication anywhere in the record, not in Lassner's testimony, not in the board's opinion, of how you would combine the template to accomplish this, how you would compare or how you would reach the claimed invention as a whole given the template in Strouster. [00:11:04] Speaker 03: You can't. [00:11:05] Speaker 03: It just doesn't make any sense. [00:11:07] Speaker 03: And there's no explanation of that in the board's findings or in Laster's testimony. [00:11:11] Speaker 03: And one final point, Your Honor. [00:11:14] Speaker 03: Pushing aside these issues, there is this en banc rehearing of NRA aqua products. [00:11:21] Speaker 03: The board, in this case, clearly paced the burden of proof in the motion to amend on micrographics, which we contested at the board. [00:11:31] Speaker 03: So given the en banc rehearing of NRA aqua products, it's micrographics [00:11:37] Speaker 03: position that at least if the court doesn't reverse or vacate and remand for some other reason, this case should be held pending the resolution of that appeal, of the Amok Rehearing Amendment. [00:11:49] Speaker 01: We'll save you rebuttal time. [00:11:50] Speaker 01: Let me ask you, your position is sufficiently strong that with the amended claims, the entire structure would have to be reviewed again? [00:12:04] Speaker 01: Depending on what happens to the motion to amend, how significant is that to your argument? [00:12:11] Speaker 03: I guess I'm not understanding the question. [00:12:14] Speaker 01: You complained about the way the office handled the motion to amend. [00:12:21] Speaker 03: That's correct. [00:12:22] Speaker 01: And I want to have as clear an idea as I can of if, in fact, we agree that there was some lapse in that procedure as to [00:12:34] Speaker 01: how significantly it would affect the result. [00:12:37] Speaker 03: I think if the court were to find that there was an erroneous construction of external shape template or the obviousness determination that the board used to reject the amended claims, the court should reverse or vacate and remand as it sees fit. [00:12:51] Speaker 03: The only way I see this case being held for NRA aqua products is if the court finds that neither of those are true. [00:12:57] Speaker 03: If the court would affirm the board's determinations otherwise, I think the case should be held because it's [00:13:02] Speaker 03: It's clear that the board placed the burden of proof on patentee micrographics. [00:13:06] Speaker 01: Okay, let's hear from the other side and we'll save you rebuttal time. [00:13:21] Speaker 01: Mr. Almoling. [00:13:23] Speaker 02: Almoling. [00:13:24] Speaker 02: Thank you, your honor. [00:13:24] Speaker 02: Good morning and may it please the court. [00:13:27] Speaker 02: My name is David Almoling. [00:13:28] Speaker 02: I'm counsel for Appalize, Google, and Samsung. [00:13:33] Speaker 02: Unless the court would like me to go in a different order or to address different questions, I plan on addressing four points. [00:13:41] Speaker 02: One, the correct construction of external shape stored outside the computer program. [00:13:46] Speaker 00: Is there testimony that conflicts with Laster's testimony about whether Walton satisfies that requirement or not? [00:13:56] Speaker 02: There is not, Your Honor. [00:13:57] Speaker 02: Walton's testimony at the appendix. [00:14:00] Speaker 02: Laster's testimony. [00:14:01] Speaker 02: I'm sorry. [00:14:01] Speaker 02: Thank you, Your Honor. [00:14:02] Speaker 02: Laster's testimony at appendix 1109 through 1110, explaining that under either construction, Walton discloses that levitation is unrebuttable. [00:14:14] Speaker 04: When was that testimony submitted into the record? [00:14:18] Speaker 02: That was as part of the second declaration of Laster, so it would accompany the reply. [00:14:23] Speaker 02: On the reply? [00:14:24] Speaker 04: Yes, Your Honor. [00:14:24] Speaker 04: And so by then they didn't have an opportunity to submit additional evidence, is that right? [00:14:29] Speaker 02: They had the opportunity under the motion for observations and other procedures to submit. [00:14:34] Speaker 02: They also had the opportunity to argue at the oral hearing. [00:14:39] Speaker 00: Did they? [00:14:41] Speaker 02: Not as far as I know, Your Honor. [00:14:43] Speaker 02: The focus was, was the construction correct? [00:14:46] Speaker 02: Not if micrographics construction was correct. [00:14:49] Speaker 02: Would there be sufficient evidence? [00:14:51] Speaker 02: So I don't believe that it was argued. [00:14:53] Speaker 02: Going though to the fundamental question of what is the appropriate question, this was relatively extensively briefed and fully addressed in the board's decision at the appendix 7 through 12. [00:15:05] Speaker 02: I just want to make one point based on the arguments that were made today. [00:15:10] Speaker 02: And that point is to direct your honor's attention to the 633 patent at appendix 48, column 3, lines 32 through 38. [00:15:23] Speaker 02: This section talks about the capabilities of the shape and says that based on those capabilities that, quote, the computer graphics application 122 may be subsequently added to the computer graphics system 120 without modifying computer graphics application 112. [00:15:46] Speaker 02: In other words, [00:15:47] Speaker 02: The various places in the specification that identify the without modifying advantage, sometimes it's in relation to the invention, sometimes it's in relation to the system, sometimes the architecture, and here the capabilities of the shape. [00:16:05] Speaker 02: It is improper to import that into the external shape itself because, of course, the shape and the capabilities are different. [00:16:14] Speaker 02: Unless your honors have any additional questions about external shape, I'll move on to the second issue that I wanted to take up. [00:16:19] Speaker 04: Can I just double-check something? [00:16:20] Speaker 04: The board's construction of... Is it just external shape or the whole phrase? [00:16:30] Speaker 04: The phrase, your honor. [00:16:30] Speaker 04: The phrase gives no meaning at all to the word external, right? [00:16:37] Speaker 04: That's not... That is, it would be exactly the same if it just said [00:16:42] Speaker 04: a shape stored outside the computer, and because it's shaped, it has to do a graphical image. [00:16:50] Speaker 04: What work is being done by the word external? [00:16:56] Speaker 02: Two things are being done. [00:16:58] Speaker 02: One is, the question is, external means external or outside to something. [00:17:05] Speaker 02: By construing the phrase external shape stored outside the computer program, the board said external means outside the computer program. [00:17:13] Speaker 04: You said that in your brief, but it doesn't respond to the question of superfluity. [00:17:18] Speaker 04: The question is not whether stored outside the computer is superfluous to the word external, but whether the word external, in your view, is being treated as superfluous to the stored outside the computer. [00:17:29] Speaker 02: The phrase has a meaning and it seeks to define where the external shape is going to be. [00:17:40] Speaker 04: I'm not saying it is impossible for words to be treated as superfluous. [00:17:48] Speaker 04: We do belt and suspenders stuff in the law all the time. [00:17:51] Speaker 04: I'm just trying to establish the premise is, whether the premise is correct, that the board's construction leaves no meaning to the word external. [00:18:00] Speaker 04: We disagree with that premise, Sean. [00:18:02] Speaker 04: What meaning is it given that wouldn't be present if the word were not in the claim? [00:18:10] Speaker 02: If the word external was removed from the limitation and it just said state stored outside the computer program, that would go to the question, okay, what does a shape mean? [00:18:21] Speaker 02: And as the board described effectively, it means a bunch of different things. [00:18:25] Speaker 02: External shape [00:18:26] Speaker 02: as that term is used in the patent means something specific. [00:18:29] Speaker 02: And that something specific based on the clarification that it's outside the computer program refers to those elements in the specification that refer to the external shape as opposed to the shape itself. [00:18:42] Speaker 02: So it's not superfluous. [00:18:43] Speaker 02: It's just explaining how that concept is used in the specification. [00:18:48] Speaker 02: And it's also consistent with every other time the board construed external something. [00:18:54] Speaker 02: external capabilities, external action, external symbol, all of which the patent is incredibly clear that there's a computer application and those things are outside of it. [00:19:08] Speaker 02: Moving on to the second question, the construction of the external shape template. [00:19:14] Speaker 02: And the argument was essentially, we're trying to capture a concept. [00:19:18] Speaker 02: But as Judge Dye correctly noted, there's nothing in the specification that ties that concept that they're trying to create with the external shape itself. [00:19:29] Speaker 02: I want to make a couple of points about this. [00:19:31] Speaker 00: So what about the parts of the specification that Mr. Wilson made reference to? [00:19:36] Speaker 02: All of those parts, and they're described in various places, and they were considered by the board, each of which pages 29 and 30 of the record, all of those sections, without exception, are talking about characteristics of the external shape. [00:19:56] Speaker 02: The external shapes have an interface. [00:19:58] Speaker 02: The external shapes are generic. [00:20:00] Speaker 02: The external shape template, however, merely interacts with them. [00:20:04] Speaker 02: The specification refers to it as a pointer that points to them. [00:20:09] Speaker 02: Therefore, when you try to attribute those additional effects to the external shape, it doesn't tell you what's in the external shape template. [00:20:16] Speaker 02: As for the corollary argument that, well, because they're an interface between the two, all of the elements of the genericness, the interfaceness of the external shape must be imported into the external shape template, [00:20:29] Speaker 02: That's simply not what the specification says. [00:20:31] Speaker 02: Specification simply refers to it as a pointer, which gives an example, and merely as the interface between the two, which was correctly captured by the board's construction. [00:20:43] Speaker 02: And I want to make one point about the board's construction that I think got lost in the argument so far today, which is the board's construction is essentially broken into two. [00:20:52] Speaker 02: You have a construction of what a template means, which is preset format, pattern, [00:20:58] Speaker 02: a model, and then you have what it does by which it can access something. [00:21:04] Speaker 02: That first part that's being appealed, the preset format pattern model, was exactly what Micrographics proposed in its motion to amend. [00:21:15] Speaker 02: And the court and the board used that language. [00:21:18] Speaker 02: That incorporation is cited in, for example, page A29 of the record. [00:21:24] Speaker 02: So it's difficult for Micrographics to argue against that construction now. [00:21:27] Speaker 02: when it advanced it below under, among other things, this court's decision in invoices against Nextel. [00:21:34] Speaker 04: Can I take you back to this template? [00:21:38] Speaker 04: discussion particularly from column 5 through 7 in the spec, which say starting column 5, line 48. [00:21:49] Speaker 04: The external shape template, 330, that's the main figure that we were all looking at. [00:21:57] Speaker 04: The box around two things where the box itself doesn't actually have a label on it, but that's what it is, comprises an external action template. [00:22:07] Speaker 04: That's one of the boxes, even though the word template doesn't appear in the figure, and an external symbol template. [00:22:15] Speaker 04: And then there's paragraph after paragraph after paragraph a discussion of the two things that are in the box, at least one of which talks about the use of generic external symbol methods. [00:22:29] Speaker 04: I guess I don't really understand. [00:22:33] Speaker 04: Do you dispute that the external symbol template is generic? [00:22:41] Speaker 02: It's not generic in the sense that it is as that term is used in their briefing. [00:22:49] Speaker 04: What is your understanding of the term generic that's in dispute here? [00:22:53] Speaker 02: So I think the specification answers that very clearly, but it doesn't do it in the paragraph that you cite. [00:22:58] Speaker 02: I'd like to direct your honor's attention to column four, line 63, where it first uses external shape template or refers to it as a pointer. [00:23:11] Speaker 02: And then if you go back to the paragraph that you were citing, the first part of that paragraph contains a topic sentence on column five, line 43, [00:23:21] Speaker 02: that it is not comprised a predetermined set of actions and a symbol, rather it is in response to a device, the external shape accesses the external, the external shape template accesses the external shapes. [00:23:35] Speaker 02: In other words, a template is just that. [00:23:37] Speaker 02: It's an access point to something else. [00:23:39] Speaker 02: It could be a pointer, it could be a preset model as under the board's construction, but it's not this generic interface in the sense that you would have this template that you would then populate [00:23:50] Speaker 02: The specification simply doesn't go that far. [00:23:53] Speaker 04: And what's your understanding of the board's construction on this point? [00:24:02] Speaker 04: Does that go beyond, does that require pointers to something else? [00:24:07] Speaker 02: The pointers would be an example of something that would fall within the board's construction, but it's not coextensive with it. [00:24:14] Speaker 02: The board's construction is larger. [00:24:16] Speaker 04: The petitioner- And then they end up, correct me if I'm misremembering this, but when the board applies the [00:24:28] Speaker 04: its own construction of external shape template to find that thing in, is that in Strauss? [00:24:38] Speaker 04: Or in the C++ manual? [00:24:41] Speaker 02: It's in Walton by itself, but it's also in the combination of Walton and Strauss stroke. [00:24:45] Speaker 04: Right. [00:24:46] Speaker 04: Do they find pointers there, or are they finding something else? [00:24:51] Speaker 04: I mean, you just described the spec here as saying [00:24:55] Speaker 04: All this is doing is pointing to something else, whatever the thing is. [00:24:59] Speaker 04: My understanding is that the critical argument about the C++ manual is that those templates, you know for certain what's inside of it. [00:25:08] Speaker 04: It's not pointing to any number of unknown things. [00:25:11] Speaker 02: I don't think that that is established in the record, Your Honor, and I think the contrary is established. [00:25:16] Speaker 02: But go into your exact point of, [00:25:18] Speaker 02: What did the board apply? [00:25:20] Speaker 02: The board applied its construction to Walton and the combination. [00:25:24] Speaker 02: It didn't imply the construction advanced by petitioners, which was pointers. [00:25:28] Speaker 02: But because pointers is a narrower part of the board's construction, it wouldn't necessarily find it if the court decided to go with pointers. [00:25:35] Speaker 02: But I want to go to Your Honor's questions about, well, what does Strauss-Trump disclose? [00:25:40] Speaker 02: Because here, the record is entirely one-sided. [00:25:45] Speaker 02: There was no argument in the motion to amend. [00:25:49] Speaker 02: There was no argument in the reply or in the accompanying briefs about what Straustrup did or did not disclose. [00:25:57] Speaker 02: In contrast, there's an expert declaration from Straustrup that says, a person of ordinary skill in the art looking at this would understand what is meant by a template in this context and would use that template within the context of what Walton was. [00:26:11] Speaker 02: I'd like to conclude by addressing the final point raised by petitioner [00:26:15] Speaker 02: which is what this court's decision under Henry Aqua would mean for this case. [00:26:22] Speaker 02: As an initial proposition, this was not raised at any point in the briefing. [00:26:27] Speaker 02: And therefore, it is waived. [00:26:29] Speaker 00: Well, but the issue didn't exist back then. [00:26:34] Speaker 02: Respectfully, Your Honor, it did. [00:26:36] Speaker 02: If you look at the board's, I'm sorry, if you look at the motion to amend on page [00:26:43] Speaker 02: The patent owner argued that the burden was improperly on the patent owner. [00:26:52] Speaker 02: So the patent owner presented this argument. [00:26:53] Speaker 00: Yeah, but there was intervening authority that that was not the case. [00:26:58] Speaker 00: So once that intervening authority came up, I don't think you'd expect someone in briefing before the panel to raise that issue. [00:27:07] Speaker 04: The intervening authority is... It's one thing to say we got it wrong once, but to say that we got it wrong four times. [00:27:14] Speaker 04: Maybe you'd use your... I mean, maybe we did, but you might choose to use your space in your brief for saying something else. [00:27:21] Speaker 01: Let's assume that it is before us. [00:27:25] Speaker 01: I'm interested in your comments on the proposed amendment and how that would change. [00:27:31] Speaker 02: So the answer to this question is part legal, part factual. [00:27:35] Speaker 02: The part legal is [00:27:36] Speaker 02: Every panel who has ever looked at this decision, Synopsis, ACWA, Proletic, Proxycom, have all come out that the burden is correctly assigned. [00:27:45] Speaker 02: So that issue is firmly before the court in Inri ACWA. [00:27:48] Speaker 02: But factually here, it does not make a difference. [00:27:52] Speaker 02: In Inri ACWA, the court's decision was approximately three quarters of a page, applying a very limited analysis based on what the board did before, because the board said, [00:28:02] Speaker 02: The burden is on you. [00:28:03] Speaker 02: I don't need to consider all of your arguments. [00:28:06] Speaker 02: Here, the board had a 10-page decision in which it analyzed the affirmative evidence presented by the patent owners in the form of a declaration and in the form of argument. [00:28:16] Speaker 02: In response to that, there was not a declaration. [00:28:19] Speaker 02: There was no argument about Stroustrup. [00:28:21] Speaker 02: So if you look at the appropriate burden, even if it was shifted, which it... You're saying there's no factual issue. [00:28:26] Speaker 02: There's no factual issue, and the factual record is so one-sided that even if you affirmatively switch the burden to the petitioner, the petitioner fully satisfied that as the board determined in its 10-page decision 828 through 38 of the record. [00:28:43] Speaker 01: Okay. [00:28:43] Speaker 01: Any more questions? [00:28:45] Speaker 01: Thank you. [00:28:46] Speaker 01: Thank you, Your Honors. [00:28:53] Speaker 01: Mr. Wilson? [00:28:55] Speaker 03: Yes, Your Honor, if I may briefly address the point that was raised by Judge Dyke earlier. [00:29:00] Speaker 03: Judge Dyke had asked for some citation to record evidence disputing the last testimony under our construction of external shapes stored outside the computer program. [00:29:14] Speaker 03: I believe if you will look at appendix pages 1033 through 34, you will see a citation to that evidence. [00:29:22] Speaker 03: I apologize. [00:29:23] Speaker 03: I do not believe the testimony. [00:29:25] Speaker 03: that is cited in that passage is actually included in the record. [00:29:29] Speaker 03: But this is a reference in our brief to the declaration of Mr. Kitchen supporting our view that under our construction Walton does not anticipate. [00:29:40] Speaker 00: So what are you referring to as a brief that was submitted to the board? [00:29:44] Speaker 03: This is our brief to the board, our patent owner response. [00:29:47] Speaker 00: And where is the citation? [00:29:49] Speaker 03: So if you look at say about three lines from the bottom of page 1033, [00:29:55] Speaker 03: We says Walton simply does not disclose that a user of the VSC system can create a new VSC object and make use of that VSC object in the user's user code without modifying the user code. [00:30:06] Speaker 03: It cites last year's deposition testimony. [00:30:08] Speaker 03: It also cites the Kitchin declaration of paragraph 42. [00:30:11] Speaker 03: That discussion continues onto the top of page 1034 with another site just before section three there to paragraphs 44 and 99 of Mr. Kitchin's declaration. [00:30:26] Speaker 03: So that issue was raised. [00:30:28] Speaker 03: It was disputed before the board. [00:30:30] Speaker 03: Addressing, if I may, the motion to amend. [00:30:40] Speaker 03: So to address the second point, Judge Stike raised, I don't believe there's evidence in the appendix. [00:30:44] Speaker 03: I apologize with regard to expert testimony on the meaning of external shape template. [00:30:49] Speaker 03: I don't see that in the portion of the record that we cited. [00:30:55] Speaker 03: But I want to address something that regarding NRA aqua products that council petitioners raised and that was the issue of the factual record being clear and one-sided in the context of the motion to amend. [00:31:10] Speaker 03: We actually believe the factual record is clear and one-sided as well and that is if you look at the four Graham factors for analysis and obviousness, Laster's testimony doesn't meet those four factors. [00:31:22] Speaker 03: We did argue that the evidence does not support [00:31:25] Speaker 03: Lastra's conclusion of obviousness or the board's opinion. [00:31:28] Speaker 03: We raised these issues in front of the board. [00:31:31] Speaker 03: But the burden of proof does matter. [00:31:33] Speaker 03: The board said we didn't carry our burden. [00:31:36] Speaker 03: It's a very different thing for the board to look at Lastra's declaration with the understanding that the petitioners carried that burden. [00:31:43] Speaker 03: And that's all I have, Your Honor. [00:31:44] Speaker 01: Okay. [00:31:45] Speaker 01: Thank you. [00:31:46] Speaker 01: Thank you. [00:31:46] Speaker 01: This case is taken under submission.