[00:00:03] Speaker 02:
The next case for argument is 16-1177, Baldrick's versus opinion left.

[00:01:01] Speaker 02:
Just waiting for your friend to get settled here.

[00:01:08] Speaker 01:
Whenever you're ready, Mr. Steinberg.

[00:01:13] Speaker 01:
Good morning.

[00:01:13] Speaker 01:
May it please the court.

[00:01:14] Speaker 01:
I'm Bob Steinberg from Latham and Watkins, and I represent Qualtrics.

[00:01:20] Speaker 01:
Legal error occurred below.

[00:01:22] Speaker 01:
The main reference that we focused on at the PTAB was the customer set reference.

[00:01:29] Speaker 01:
And the PTAB did not find that a pop-up exclamation mark questionnaire was a survey in a pop-up window.

[00:01:37] Speaker 02:
And the limitation we're worrying about here is, quote, while the user remained at a particular web page.

[00:01:43] Speaker 02:
That's correct.

[00:01:44] Speaker 02:
So as far as the prior art that was put forth by you and the PTAB, customer sat and metanats and the other thing, you agree, don't you, that that limitation is not

[00:01:55] Speaker 02:
expressly disclosed within the four corners of those pieces of prior art?

[00:02:00] Speaker 01:
Yeah, here's the issue, Your Honor.

[00:02:02] Speaker 01:
This phrase, pop-up, exclamation mark, that is the pop-up window that the patent, the 805 patent, describes as having a survey in it.

[00:02:15] Speaker 01:
Now, the pop-up exclamation mark invitation, which precedes the pop-up questionnaire, pops up on the screen

[00:02:25] Speaker 01:
And we know that from the reference itself, it says it.

[00:02:31] Speaker 01:
But the board below didn't want to go to the next step, which is to show.

[00:02:36] Speaker 02:
Can you answer my question?

[00:02:37] Speaker 02:
Yes.

[00:02:37] Speaker 02:
I still am waiting to hear an answer to my question.

[00:02:41] Speaker 02:
I'm happy to have you explain the answer.

[00:02:44] Speaker 02:
But is that limitation expressly disclosed in any of the pieces of the prior art that were offered?

[00:02:52] Speaker 01:
With regard to the pop-up questionnaire, Your Honor,

[00:02:54] Speaker 02:
That, to us, is the express disclosure of a pop-up window that satisfies the limitation, because you have a... Without more, I mean, you've got, without more being without a declaration, without a reference to a person skilled in the art, reading the woo reference, without more, is there an express disclosure in those pieces of prior art?

[00:03:17] Speaker 01:
With those specific words of the claim, Your Honor, no.

[00:03:21] Speaker 01:
Those words about remaining on a page, receiving feedback while you're still looking at the web page below, those words are not in customer set.

[00:03:29] Speaker 01:
But what we do know is a pop-up exclamation mark questionnaire did exactly that.

[00:03:35] Speaker 01:
And it's explained that way in the four corners of the customer set reference.

[00:03:40] Speaker 01:
And we know that because pop-up exclamation mark invitation pops up on your screen in front of you, asks if you want to do a questionnaire.

[00:03:51] Speaker 01:
And then you click on it, and you get the questionnaire.

[00:03:54] Speaker 02:
But how do we know that?

[00:03:55] Speaker 02:
I mean, even taking the declaration of your expert.

[00:03:58] Speaker 01:
Exactly.

[00:04:00] Speaker 01:
We know that because in the reference itself at 394 of the appendix, it explains pop-up.

[00:04:12] Speaker 01:
At the top, it generically talks about pop-up.

[00:04:16] Speaker 01:
That's with an exclamation mark.

[00:04:19] Speaker 01:
It says it lets you survey website visitors instantly, and here's the most important part of this document, at 394.

[00:04:31] Speaker 01:
By the time you have read, and this is the website that I have, which was our evidence, this is the reference.

[00:04:37] Speaker 01:
By the time you have read this far, a pop-up with an exclamation mark survey invitation should have appeared on your screen.

[00:04:47] Speaker 01:
So the pop-up appears on your screen over this page.

[00:04:52] Speaker 01:
Give it a try for more information about pop-up, lowercase.

[00:04:57] Speaker 01:
Please email us at this address.

[00:05:00] Speaker 01:
We know a pop-up window, that phrase, it's used in the 805 patent to describe, excuse me, figure six in the 805 patent, the patent that's being challenged.

[00:05:15] Speaker 01:
it is a pop-up window that would appear over another web page.

[00:05:20] Speaker 01:
And the reason we have a pop-up window in the 805 is to create convenience so that I can fill in, this is what the patent says, conveniently fill in the questionnaire in this pop-up window, which itself is a web page, move it around so that I can see what it is I'm answering questions about.

[00:05:41] Speaker 01:
And that is exactly what

[00:05:44] Speaker 01:
this reference is about.

[00:05:47] Speaker 01:
So the founder of this company testified that the phrase pop up with an exclamation mark in front of invitation, it means the same thing in front of questionnaire.

[00:06:00] Speaker 01:
It says, inobtrusively, conveniently, and instantly using pop up technology on the very next page.

[00:06:10] Speaker 01:
In other words, pop up with an exclamation mark technology

[00:06:13] Speaker 01:
is being described generally.

[00:06:15] Speaker 01:
And that phrase is being used in front of either an invitation or a question.

[00:06:21] Speaker 01:
And we know it pops up.

[00:06:23] Speaker 01:
There's no dispute, even between the parties or at the board.

[00:06:27] Speaker 01:
At A6 of the opinion below, it makes it very clear that the pop-up invitation is popping up in front of you.

[00:06:37] Speaker 01:
And then you can pop up on the questionnaire if you click on it.

[00:06:41] Speaker 01:
Now here's where the court went

[00:06:43] Speaker 01:
a strength, the board went astray.

[00:06:46] Speaker 01:
It didn't focus on this phrase.

[00:06:50] Speaker 01:
It didn't focus on the pop-up exclamation phrase in front of the questioner and consider what a person of ordinary skill in the art would have thought about that phrase in the context of background, benchmark, knowledge that they had or would have had to be presumed to have.

[00:07:09] Speaker 01:
And what they would have thought about in the context of this reference

[00:07:13] Speaker 01:
What they would have thought or inferred, in fact, or what this would have suggested as to being obvious, that determination in light of the Wu reference, the Chisholm testimony, common sense as applied to this reference itself, simply was not applied.

[00:07:33] Speaker 01:
That's where the legal error occurred.

[00:07:35] Speaker 02:
Didn't that matter have come in in the first instance since the burden was on you all to establish in the first instance?

[00:07:42] Speaker 02:
what references or what your reliance is to establish it.

[00:07:46] Speaker 02:
I mean, it seems to me there was a gap left in your first presentation that you tried to fill up on your reply with the declaration and the references to Wu and the Prisoners Guild of Anar.

[00:07:59] Speaker 02:
Isn't that a problem?

[00:08:00] Speaker 02:
Is it a matter of process?

[00:08:03] Speaker 01:
We don't think so.

[00:08:04] Speaker 01:
And there's a case on point here.

[00:08:06] Speaker 01:
It's the Genzyme case from this court.

[00:08:08] Speaker 01:
And it makes it very clear in that opinion

[00:08:12] Speaker 01:
art information could come in later during the proceeding itself, the trial proceeding post institution to develop the record.

[00:08:23] Speaker 01:
Especially when we're talking about the critical element under KSR having to determine what the level of ordinary skill in the art would be applied to the references that we relied on.

[00:08:36] Speaker 01:
The petition had three references that were instituted.

[00:08:39] Speaker 01:
We didn't change that.

[00:08:41] Speaker 01:
We didn't

[00:08:41] Speaker 01:
say this limitation is met because of this new art.

[00:08:46] Speaker 01:
Instead, we said there is an ordinary person, there's a person of ordinary skill in the art who would recognize that the state of the art, their background, when they looked at that reference, customer said, they would see within its four corners, pop-up exclamation mark means a pop-up.

[00:09:04] Speaker 02:
But the board rejected, I mean, there were a battle of experts here.

[00:09:07] Speaker 02:
Yeah.

[00:09:07] Speaker 02:
And the board kind of seems, I mean, they use the word credibility, which is an almost unassailable proposition on review.

[00:09:18] Speaker 02:
And they credited not Mr. Chisholm, but the other side's expert, whose name escapes me.

[00:09:22] Speaker 01:
Yeah.

[00:09:22] Speaker 01:
Let me address that, Your Honor.

[00:09:24] Speaker 01:
I really do want to address that.

[00:09:26] Speaker 01:
Here's what happened.

[00:09:31] Speaker 01:
During the trial hearing itself, it was very clear that the board

[00:09:37] Speaker 01:
was thinking about customer set with four corners.

[00:09:40] Speaker 01:
Let me get to your question.

[00:09:42] Speaker 01:
And it asked several times on the record, I can only look at this reference from its four corners.

[00:09:49] Speaker 01:
You're giving me these other things, woo, chism, common sense arguments.

[00:09:54] Speaker 01:
But I can only look at it from the four corners.

[00:09:56] Speaker 01:
It said, Mr. Steinberg, again, I keep coming back.

[00:10:03] Speaker 01:
Sorry, Mr. Steinberg, I keep going back to this.

[00:10:06] Speaker 01:
The test for obviousness, as you know, is based on what a person of ordinary skill in the art is viewing within the four corners of the reference.

[00:10:18] Speaker 01:
And that's at page 27 of the trial hearing.

[00:10:21] Speaker 01:
It was a rigid focus.

[00:10:23] Speaker 01:
I mention that because in the opinion, the court didn't focus on pop-up exclamation mark

[00:10:30] Speaker 01:
and what it meant to a person of ordinary skill in the art.

[00:10:34] Speaker 01:
Instead, it wanted to find evidence in customer stat that, in fact, the questionnaire worked just like the invitation.

[00:10:45] Speaker 01:
That is, show me, this is what they said, that the invitation, their words, the board's words, turns into the questionnaire.

[00:10:55] Speaker 01:
Turns into.

[00:10:57] Speaker 01:
That the invitation and the questionnaire are one and the same.

[00:11:01] Speaker 01:
First of all, I don't think my colleagues at Opinion Lab would even admit that that is required by the claims of the 805 PAC, any of them, that the questionnaire and the invitation have to be the same and turn into it.

[00:11:18] Speaker 01:
The trial decision from the board is very clear, Your Honor.

[00:11:25] Speaker 01:
Where it turns is on this issue, a requirement not in the claims, doesn't say that's a construction,

[00:11:32] Speaker 01:
There's no embodiment in the 805 patent that works this way for its satisfaction because it didn't want to interpret the reference based on a person of ordinary skill in the art because it thought it had a blinkered approach.

[00:11:45] Speaker 01:
Contrary to Randall and Ariosa, cases from this court, it looked for something else, a technical requirement.

[00:11:54] Speaker 01:
And that technical requirement is simply something that is not in customer set.

[00:11:59] Speaker 01:
It doesn't show the survey going

[00:12:01] Speaker 01:
over the invitation or being in the same place or turning into it on the same web page.

[00:12:06] Speaker 01:
That's a web page.

[00:12:07] Speaker 01:
The pop-up window is a web page.

[00:12:09] Speaker 01:
There is no requirement for that in the claims.

[00:12:12] Speaker 01:
That was just something that the board latched onto because it wasn't satisfied that it could look at something beyond customer set and satisfy itself that the common sense would explain that the invitation works like the questionnaire because that's what it says.

[00:12:29] Speaker 01:
And Mr. Chisholm, the founder,

[00:12:32] Speaker 01:
of the company that created this very program, the customer set program.

[00:12:37] Speaker 01:
He said it worked this way.

[00:12:39] Speaker 01:
He said it worked this way.

[00:12:40] Speaker 01:
Now, that by itself is not dispositive.

[00:12:43] Speaker 01:
But we brought in Wu, a reference that came up in the file history of the Patent Act issue.

[00:12:51] Speaker 01:
During the prosecution, this patent is referred to as a 697 patent.

[00:12:57] Speaker 01:
The Wu reference was never disclosed or discussed

[00:13:01] Speaker 01:
waived, rejected, or what have you in the decision.

[00:13:05] Speaker 01:
Yet it came up and was discussed in great detail during the hearing at 4628 to 30.

[00:13:15] Speaker 02:
But it was not a piece of prior art that you offered up in the first instance.

[00:13:20] Speaker 02:
It was not a piece of prior art that was offered up in the first instance.

[00:13:23] Speaker 01:
But it came up during the trial proceeding because

[00:13:27] Speaker 01:
They raised it.

[00:13:28] Speaker 01:
They raised it in the context of their response.

[00:13:30] Speaker 01:
First, they opened the door on it.

[00:13:32] Speaker 02:
What do you mean they raised it?

[00:13:33] Speaker 02:
They didn't raise room.

[00:13:35] Speaker 01:
Oh, yes they did.

[00:13:37] Speaker 01:
They did, Your Honor.

[00:13:38] Speaker 01:
They raised it in their response.

[00:13:40] Speaker 01:
They raised it in response in this context.

[00:13:41] Speaker 01:
They were trying to say that the claims of the 805 patent were allowed on this claim limitation that we have at issue here.

[00:13:51] Speaker 01:
And we came back in our reply and said, no, no, no.

[00:13:54] Speaker 01:
That's not why it was allowed.

[00:13:55] Speaker 01:
It was allowed on another limitation, scrolling, while the invitation or button stays up on the screen.

[00:14:03] Speaker 01:
That's what it was allowed on.

[00:14:04] Speaker 01:
And we talked about WU, the 967 pat.

[00:14:08] Speaker 01:
We called it by the numbers.

[00:14:09] Speaker 01:
And what we pointed out was common knowledge.

[00:14:14] Speaker 01:
It shows that the very thing they say was supposed to be allowed over, and that limitation wasn't added in the notice of allowance.

[00:14:24] Speaker 01:
Wu shows this limitation.

[00:14:26] Speaker 01:
Dr. Seamus admitted in the record, and we cite that in our briefs, that it shows the limitation.

[00:14:33] Speaker 01:
He said it straight up.

[00:14:35] Speaker 01:
And that was ignored.

[00:14:36] Speaker 01:
So not only was Chisholm ignored, our expert, Dr. Seamus' testimony about what Wu does pops up a window so that you can look at it simultaneously with the web page below.

[00:14:48] Speaker 01:
That was ignored.

[00:14:49] Speaker 01:
None of that was considered in the decision.

[00:14:51] Speaker 01:
And that's error.

[00:14:52] Speaker 02:
OK, you're into your rebuttal.

[00:14:54] Speaker 01:
Yes, thank you very much, Your Honor.

[00:14:56] Speaker 01:
I reserve the rest of my time.

[00:15:03] Speaker 02:
Mr. Kennerly.

[00:15:06] Speaker 00:
Thank you, Chief Judge Prost, and may it please the court.

[00:15:10] Speaker 00:
Quatrix alleged legal error is really an attempt to evade the demanding substantial evidence standard that applies to the board's factual determinations.

[00:15:21] Speaker 00:
We heard it again.

[00:15:23] Speaker 00:
Today, and Qualtrick's argument about whether customer sat actually discloses this limitation at issue.

[00:15:28] Speaker 02:
But why shouldn't they have addressed woo?

[00:15:30] Speaker 02:
Wasn't that a strong argument, leaving aside for the moment?

[00:15:33] Speaker 02:
I mean, the board didn't say, you're improperly raising woo now, and you should have raised it in the first instance.

[00:15:39] Speaker 02:
So this is not proper.

[00:15:40] Speaker 02:
The board just didn't say anything, at least specifically, about the discussion of the woo

[00:15:46] Speaker 00:
Well, Your Honor, the board certainly never stated that it was not considering Wu.

[00:15:51] Speaker 00:
In fact, it stated the opposite, that it had considered the totality of the evidence presented by Qualtrics in making its factual findings.

[00:16:00] Speaker 00:
That's at A11 to 12.

[00:16:03] Speaker 00:
There's no suggestion in the decision that the board ignored any of Qualtrics' evidence, including Wu, or that its evidentiary view was circumscribed in any way.

[00:16:13] Speaker 00:
And in fact, with respect to Wu,

[00:16:16] Speaker 00:
The board's decision expressly discussed Mr. Chisholm's reply declaration, which is where Wu came in.

[00:16:23] Speaker 00:
And while the board didn't discuss Wu in particular in its decision, at the hearing, it made clear that it was aware of Wu, understood how Qualtrics was applying Wu, and understood the proper use to be made of Wu, if any.

[00:16:38] Speaker 00:
That's in particular at A4628 to 29 of the hearing transcript.

[00:16:44] Speaker 00:
And this record forecloses,

[00:16:46] Speaker 00:
Qualtrics' argument that the board believed it could not consider Wu for the purpose Qualtrics requested, establishing this commonality of a claim element that was supposedly absent from the prior institution.

[00:16:58] Speaker 00:
It's certainly reasonably discernible how the board got to its result, its factual findings.

[00:17:06] Speaker 00:
And those are entitled to substantial deference, as you know.

[00:17:11] Speaker 00:
I would like to address this gap that the court mentioned

[00:17:14] Speaker 00:
in Qualtrics' arguments below, which were never filled, actually.

[00:17:22] Speaker 00:
Wu was not mentioned in the petition or the supporting Chisholm Declaration.

[00:17:26] Speaker 00:
The court noted that.

[00:17:27] Speaker 00:
Wu also was not mentioned in Qualtrics' reply.

[00:17:30] Speaker 00:
The reply cited paragraph 23 of Chisholm's reply declaration, which related to Wu, but cited it only with respect to a different claim limitation about scrolling.

[00:17:41] Speaker 00:
That's at A2614.

[00:17:43] Speaker 00:
If you look at Chisholm's reply declaration, that's at paragraph 23.

[00:17:46] Speaker 00:
That's the only portion of the reply declaration that mentions Wu.

[00:17:51] Speaker 00:
And it does not set forth any opinion about how Wu would inform a person of skill in the art in interpreting the customer set reference or any other reference.

[00:18:02] Speaker 00:
It's in a separate section four that does not relate to customer set.

[00:18:06] Speaker 00:
He testifies there that Wu expressly discloses the limitation.

[00:18:11] Speaker 00:
Does not mention customer sat at all that's at a 35 85 but excuse me a 37 85 to 86 so Qualtrics argument before this court and its reply brief at 18 and also to the board at the hearing that's at a 46 28 to 29 really Distorts the record Qualtrics argued are certainly implied there that mr. Chisholm testified That woo would have led a person skilled in the art to interpret customer sat in a certain way

[00:18:41] Speaker 00:
But he never says that.

[00:18:43] Speaker 00:
There's no testimony to that effect, no evidence to that effect from Mr. Chisholm in his reply.

[00:18:48] Speaker 00:
And so it's understandable on that record why the board, in its final written decision, did not expressly discuss Wu.

[00:18:58] Speaker 00:
Talked about Chisholm's reply declaration, said it made its factual findings based on the totality of the evidence presented, which are, you know, we have this substantial evidence standard, which certainly was met.

[00:19:11] Speaker 00:
But it's entirely understandable why the board wouldn't have focused on this one piece of evidence that Qualtrics now raises as being very important when, if you look at this record, there's no evidence, no testimony ever.

[00:19:24] Speaker 02:
But Wu contains, is there a dispute that Wu contains?

[00:19:28] Speaker 02:
The limitation that's seems to be missing in terms of the petition is expressly described in Wu, right?

[00:19:36] Speaker 00:
Well, we don't agree with that.

[00:19:38] Speaker 00:
Now, Qualtrics certainly argued that.

[00:19:40] Speaker 00:
But the board never found that.

[00:19:44] Speaker 00:
And really what's shown in Wu is there's a one-sentence description of it.

[00:19:50] Speaker 00:
It's about a test environment and someone entering comments.

[00:19:52] Speaker 00:
It's unclear when and how that was presented, what's being done there.

[00:19:57] Speaker 00:
So there's a very, very thin record not developed at all by Qualtrics about what Wu discloses.

[00:20:06] Speaker 00:
And there's certainly no admission from opinion lab.

[00:20:09] Speaker 00:
that Wu discloses what Qualtrick says it did.

[00:20:12] Speaker 00:
And the board disagreed.

[00:20:15] Speaker 00:
And that's what we have.

[00:20:18] Speaker 00:
Unless the board has any other questions, I'll just close by really noting that the court, the board did exactly what it's supposed to do here.

[00:20:31] Speaker 00:
Considered all the evidence, including testimony from both experts, both declaration testimony, deposition testimony.

[00:20:39] Speaker 00:
determined, made findings about what testimony it believed more credible and then expressly discussed all the evidence presented in its factual findings and fully supported by substantial evidence here and really the alleged legal errors that are presented on appeal are just an attempt to get around that.

[00:21:01] Speaker 00:
The vast majority of the argument today from Qualtrics was again

[00:21:05] Speaker 00:
What the references disclose more factual argument that?

[00:21:10] Speaker 00:
They've already lost on that and you know the board's findings Should hold up there I Would like to also address the the notion that the board was looking at an incorrect limitation or limitation that was not in the claims and

[00:21:29] Speaker 00:
That's plainly incorrect.

[00:21:31] Speaker 00:
In its final written decision, the board explicitly and repeatedly stated the limitation as recited in the 805 patent claims.

[00:21:38] Speaker 00:
It did so in describing the patent and the challenged claims at A3, in its analysis of the alleged obviousness at A5, 7, 8, 9, and 10, and in its ultimate conclusion that Qualtrics had failed to meet its burden to prove obviousness.

[00:21:53] Speaker 00:
That's at A12.

[00:21:54] Speaker 00:
So there was plainly no legal error on the board in considering

[00:21:59] Speaker 00:
some non-existent or incorrect limitation.

[00:22:03] Speaker 00:
That argument's a red herring.

[00:22:05] Speaker 00:
Both the board's decision and Opinion Lab's briefing focused on the correct limitation.

[00:22:10] Speaker 00:
And really, the argument from Qualtrics really is sort of a misinterpretation or, I would say, a distortion of the record.

[00:22:22] Speaker 00:
We see in the arguments on appeal

[00:22:27] Speaker 00:
there's a selective quotation going on and I noted that in Qualtrics reply brief at 12, it quotes opinion lab's brief as stating, quote, HTML 4.0 specification ellipsis does not suggest placing a survey invitation and survey form ellipsis or in ellipsis the same window.

[00:22:49] Speaker 00:
But that second ellipsis omits the words separate frames of

[00:22:53] Speaker 00:
which was what was in opinion lab's brief, which changes the meaning.

[00:22:57] Speaker 00:
So you can compare opinion lab's brief at 33, where it says, quote, HTML specification ellipsis does not suggest placing a survey invitation and survey form in separate frames of the same window.

[00:23:10] Speaker 00:
So this argument that there was a requirement by opinion lab that somehow these things both appear in the same window, and that's what the board was focusing on, just evaporates really when you look at what the board actually did.

[00:23:22] Speaker 00:
And indeed, Opinion Lab has argued numerous times that that wouldn't make any sense anyway.

[00:23:28] Speaker 00:
So if the customer sat at the exact page that Qualtrics pointed to, A394, makes clear there's a pop-up invitation.

[00:23:37] Speaker 00:
And then you go to or you're taken to a questionnaire or a survey.

[00:23:41] Speaker 00:
That's at a different page.

[00:23:42] Speaker 00:
It's shown in the reference.

[00:23:44] Speaker 00:
And that's always what Opinion Lab has argued, this notion that somehow we're

[00:23:48] Speaker 00:
arguing that they need to be in the same window.

[00:23:50] Speaker 00:
That certainly doesn't make any sense.

[00:23:52] Speaker 00:
If the window is there with the survey, you would need the invitation in the first place.

[00:23:56] Speaker 00:
So this whole notion, what customers that talks about, is you get an invitation, then you go off to the survey at a different page.

[00:24:02] Speaker 00:
And that's always been the argument.

[00:24:04] Speaker 00:
And the board correctly discerned what the limitation was, repeated it over and over, and made its detailed factual findings based on that.

[00:24:12] Speaker 00:
Unless there are any questions, that's all I have.

[00:24:15] Speaker 00:
Thank you.

[00:24:32] Speaker 01:
First and foremost, let me go back to the trial, to the decision from the PTAB, and it is very clear that the PTAB said the following based on the arguments that were made.

[00:24:43] Speaker 01:
In other words, according to Opinion Lab, a customer said survey button is only an invitation.

[00:24:48] Speaker 01:
There is no teaching or suggestion that this pop-up invitation contains the survey itself.

[00:24:55] Speaker 01:
It repeats this again and again in the decision.

[00:24:59] Speaker 01:
It's not looking

[00:25:01] Speaker 01:
for just a pop-up window like the patent requires so that you can put feedback in it.

[00:25:07] Speaker 01:
It's looking for something more that the survey and the invitation have to come together.

[00:25:12] Speaker 01:
That is an A6 of the decision and an A8, just another notable one, customer set survey button would turn the survey invitation into the invitation into a survey question, their words, the board's words.

[00:25:28] Speaker 01:
That's not required by the claim and they won't admit that.

[00:25:31] Speaker 01:
So that's not a limitation of the claim.

[00:25:33] Speaker 01:
That was a requirement they looked for because they were looking for something in the reference that survey and invitation came together.

[00:25:40] Speaker 01:
So it was admitted that the invitation pops up.

[00:25:43] Speaker 01:
Pop up exclamation mark.

[00:25:46] Speaker 01:
The expert both agree.

[00:25:47] Speaker 01:
That phrase with the exclamation mark, it meant popping up.

[00:25:51] Speaker 01:
Dr. Seamus and Mr. Chisholm.

[00:25:55] Speaker 01:
And you can see that admission at A4265.

[00:25:57] Speaker 01:
Dr. Seamus.

[00:26:01] Speaker 01:
Their expert.

[00:26:02] Speaker 01:
He said that.

[00:26:03] Speaker 01:
That's woo.

[00:26:04] Speaker 01:
It does the pop-up.

[00:26:06] Speaker 01:
That is the gap that the court felt was missing.

[00:26:09] Speaker 01:
Under Ariosa, it is clear that a person of ordinary skill in the art needed to take that into account while looking up, pop up the phrase to see what it meant.

[00:26:20] Speaker 01:
Legal barrier honors that that phrase wasn't interpreted and no waiving of the art.

[00:26:27] Speaker 01:
And the woo reference,

[00:26:29] Speaker 01:
with regard to Mr. Chisholm and what he said, he brought the argument up because of they raised it in their response.

[00:26:38] Speaker 01:
We replied to it to explain how the case was allowed.

[00:26:42] Speaker 01:
And in that context, he pointed out that Wu, in particular, do I have that?

[00:26:47] Speaker 01:
I do have that.

[00:26:50] Speaker 01:
That A222 shows the pop-up window, and that

[00:26:58] Speaker 01:
I'm sorry, 3786 and that confirms what he said about his own system that pop-up exclamation mark means just that popping up and what he did was he pointed to Wu as saying this is common knowledge and that's how we refer to it in our reply brief and we refer to that declaration.

[00:27:22] Speaker 01:
None of that was discussed in the decision.

[00:27:24] Speaker 02:
Thank you.