[00:00:02] Speaker 04:
Okay, the first argued case this morning is the software rights archive against Facebook and others.

[00:00:09] Speaker 04:
Mr. Hardy, proceed.

[00:00:11] Speaker 04:
And recognizing that there are three separate cases, we'll try not to repeat ourselves as we go on with the other cases.

[00:00:19] Speaker 04:
So concentrate here on the most critical point.

[00:00:25] Speaker 01:
May I please the court?

[00:00:28] Speaker 01:
The board's decision is clearly erroneous because it fails to provide an explanation or any substantial evidence to demonstrate a motivation to use indirect relationships to search in a specific claimed arrangement in view of the negative experimental results found in the box papers themselves.

[00:00:48] Speaker 01:
Now the argument I'm going to be talking about here today is referred to in our briefs as the claimed arrangement argument.

[00:00:55] Speaker 01:
I think it's very important to focus on

[00:00:57] Speaker 01:
because I think that this particular argument resolves all disputes with respect to SRA's appeals.

[00:01:04] Speaker 01:
Now, what I'm referring to specifically is found on page 10 of the SRA's reply brief.

[00:01:10] Speaker 01:
And I would like to look at the claim elements.

[00:01:13] Speaker 01:
And if we could, I'd like to direct the court to go to that page.

[00:01:21] Speaker 01:
Now, as we look for this, we get to the claim.

[00:01:25] Speaker 01:
I want to note that we're going to talk about claim 26 of the 352 patent, but the structure and the issues that we're going to discuss right now are found throughout all claims that SRA is appealing include those in the 494 and 571.

[00:01:40] Speaker 01:
What we have on page 10 is the last five elements of claim 26 of the 352 patent set forth.

[00:01:47] Speaker 01:
And what this claim structure requires is first,

[00:01:50] Speaker 01:
that a person create a first numerical representation of direct relationships in the database and store that for use in computerized searching.

[00:01:59] Speaker 01:
And importantly, after one has created this numerical representation of direct relationships and made it available for searching, the method requires three additional steps.

[00:02:09] Speaker 01:
First, conduct an analysis of indirect relationships.

[00:02:13] Speaker 01:
Second, embody it in a second numerical representation.

[00:02:16] Speaker 01:
And third, use that to search.

[00:02:18] Speaker 01:
So in order to be motivated,

[00:02:20] Speaker 01:
perform these five steps of this claim as arranged here in the claim, one must be motivated to use an analysis of indirect relationships to search, even though one has just created a first numerical representation of direct relationships and stored it for use in searching.

[00:02:39] Speaker 01:
And so this claim structure creates a fundamental empirical and quantitative question.

[00:02:45] Speaker 01:
And the question is this.

[00:02:47] Speaker 01:
If an analysis of indirect relationships

[00:02:49] Speaker 01:
harms does not provide a benefit to searching.

[00:02:53] Speaker 01:
One would not be motivated to perform the last three steps of the claim given that they have a first numerical representation of direct relationships.

[00:03:01] Speaker 01:
And indeed, if the use of an analysis of indirect relationships harms search results versus just using the direct relationships you just created, then that would be a strong empirical teaching not to perform the last three steps of the claim.

[00:03:17] Speaker 01:
And so it's important to understand that this is both quantitative and an empirical question.

[00:03:23] Speaker 01:
And that question is decisively answered in the Fox paper's experimental results themselves.

[00:03:28] Speaker 01:
If we turn to page 12 of SRI's reply brief, what I have here listed is a table with seven experimental results.

[00:03:44] Speaker 01:
These seven experimental results are the only seven experimental results found anywhere in the Fox papers directed to this empirical issue.

[00:03:53] Speaker 01:
It's the only seven experimental results where you can compare BC and CC, the only indirect relationships being tested in the combination, versus direct links and see the relative importance.

[00:04:05] Speaker 01:
And what we see uniformly, without exception, not one result to the contrary, is in all seven results, the use of

[00:04:13] Speaker 01:
of an analysis of indirect relations search to the use of the analysis of indirect relationships of search harmed search results that one would attain had they just used the first numerical representation of search.

[00:04:26] Speaker 01:
Consequently, based upon these experimental results, one would not perform these five steps as arranged.

[00:04:32] Speaker 01:
They would be effectively harming the search results they would have obtained had they just stopped after the first two steps.

[00:04:39] Speaker 01:
Because of this, this is a very strong empirical teaching not to perform the method.

[00:04:44] Speaker 03:
There's other statements in the Fox papers, too, though, right?

[00:04:47] Speaker 03:
That's correct.

[00:04:48] Speaker 03:
I mean, there's several citations we could find right now through this thousand-page consolidated document that's talked about how using a BC-ECC combination seemed rather good, that there's some best behavior to come when BC and CC are combined with equal weighting.

[00:05:07] Speaker 03:
Sure.

[00:05:10] Speaker 03:
AJA5605, you know, preliminary tests indicate that extended vectors may significantly aid retrieval performance in a feedback environment.

[00:05:22] Speaker 03:
So what it seems like the best you can do is characterize the Fox papers as a mixed bag of sorts.

[00:05:33] Speaker 03:
It says some, it has some experiments that,

[00:05:36] Speaker 03:
didn't work out so well.

[00:05:38] Speaker 03:
Maybe that's limitations due to the database.

[00:05:41] Speaker 03:
Maybe it's due to the regression analysis.

[00:05:44] Speaker 03:
But in the end, FOX is still driving towards sounding, at least in various different places, optimistic about using these indirect citation relationships.

[00:05:56] Speaker 03:
And so therefore, why would we say that this question of fact

[00:06:03] Speaker 03:
that the board arrived at, that there's no teaching away, is somehow, you know, black substantial evidence, clearly erroneous, whatever you want to call it.

[00:06:13] Speaker 01:
Sure.

[00:06:14] Speaker 01:
And I'm glad you asked this question.

[00:06:15] Speaker 01:
I think this is the most important question that I'm going to respond to here today.

[00:06:20] Speaker 01:
Because what I'm going to show you is that none of those statements, not one of them, are directed to the fundamental empirical question of whether an indirect relationship can perform sufficiently or enough

[00:06:32] Speaker 01:
to justify its use after the method has already created a first numerical representation in direct relationships.

[00:06:40] Speaker 01:
None of those statements are directed to those questions.

[00:06:43] Speaker 01:
So let's look at what those statements actually were.

[00:06:45] Speaker 01:
If we turn and flip the page to page 13 of my brief, some of the statements, for example, BC is the best one to use, was one of the quotes they cited.

[00:06:55] Speaker 01:
This quote comes from the experiment of table 8.7, which is set forth on page 13 of the brief.

[00:07:01] Speaker 01:
Table 8.7 shows a 6% improvement against terms.

[00:07:06] Speaker 01:
But what it does not do is not directed to the empirical question of whether the indirect relationships would show a benefit versus direct links, the specific step prior to creating the analysis of indirect relationships.

[00:07:21] Speaker 01:
And it's very important to understand that.

[00:07:23] Speaker 01:
The reason why is this test is from the ISI collection.

[00:07:26] Speaker 01:
The ISI did not have

[00:07:28] Speaker 01:
direct relationships among the documents in it.

[00:07:31] Speaker 01:
What it was created from is source-sided pairs from outside the collection.

[00:07:35] Speaker 01:
And the result of that is no LN subvector was ever created for the ISI.

[00:07:43] Speaker 01:
So consequently, because there's no LN subvector, there's no testing of the indirect relationships against that subvector.

[00:07:52] Speaker 01:
So this test does not speak to the empirical question of the claimed arrangement argument they were making.

[00:07:58] Speaker 01:
Indirect relationships must show some kind of benefit to justify their use, given the method specifically requires you to create a numerical representation of the direct relationships and store that for use in searching.

[00:08:11] Speaker 01:
And so one would not be motivated based upon this test to perform it.

[00:08:16] Speaker 01:
This is not substantial evidence.

[00:08:18] Speaker 01:
Substantial evidence is evidence that one, a reasonable mind, would find adequate to support a conclusion.

[00:08:25] Speaker 01:
The fact that there's a 6% improvement against terms

[00:08:28] Speaker 01:
does not allow any inference that indirect relationships would, in fact, be better than direct links.

[00:08:34] Speaker 01:
And indeed, the only evidence anyone has to this are the seven test results that I showed you previously on page 12, which show in every single case, without exception, indirect relationships harm search results versus direct links.

[00:08:48] Speaker 03:
If the notion of using indirect citation relationships for querying databases for information retrieval

[00:08:58] Speaker 03:
was really such a poisonous failure as you would have us believe, then why would Fox, who did all this work in 1983, go right back to the same well and drink from it ten years later in the Fox and Vision paper?

[00:09:16] Speaker 01:
Okay, and the answer is he doesn't.

[00:09:18] Speaker 01:
There is not one reference in the Fox and Vision papers to Fox 1983.

[00:09:22] Speaker 01:
There's no discussion of this whatsoever.

[00:09:25] Speaker 01:
And keep in mind, Fox is not looking just at specific issue of indirect relationships.

[00:09:31] Speaker 01:
He's looking at the vector space model, including direct links and the other types of subvectors.

[00:09:38] Speaker 01:
And yes, there are use in the term subvectors.

[00:09:40] Speaker 01:
And there is use in the direct link subvector.

[00:09:43] Speaker 01:
And that somewhat would support what he's doing here.

[00:09:46] Speaker 01:
But when you drill down specifically what the claim requires is whether the indirect relationship components are justified, what we see completely is,

[00:09:56] Speaker 01:
that they're not.

[00:09:57] Speaker 01:
The experimental results don't bear that out.

[00:10:00] Speaker 01:
We don't see a use of BC and CC disclosed in the later papers.

[00:10:05] Speaker 01:
In fact, in the 15 years after the Fox papers are presented, not one search engine ever used the Fox method, nor did it even use the relationships BC and CC to search.

[00:10:17] Speaker 01:
There's a complete absence of any use of indirect citation relationships to enhance search for nearly 15 years after that.

[00:10:25] Speaker 01:
And then once it's later shown by a licensee of SRA, Google, that these relationships are meaningful search, it literally revolutionizes the search industry and makes Brennan Page billionaires.

[00:10:38] Speaker 01:
And then before that, Motwani and Sergey Bren, we have quotes in our brief, explain how no one understood that citation relationships were meaningful for search and how they had stumbled on this by their analysis of direct links.

[00:10:54] Speaker 01:
So I believe that what this clearly shows is that not only did Fox experiments teach away from it, it was in fact successful, that the industry Fox's experiments, along with the prior Salton experiments that were negative, and the subsequent Nun experiments that were negative, and the Tapper experiments that were negative, and the Leadwith experiments that were negative in the timeline, all point to one single picture.

[00:11:18] Speaker 01:
The indirect relationships were not deemed useful under the Fox method and the then known ways of using them.

[00:11:25] Speaker 01:
Now, I also wanted to go back and finish answering the question you put forth to me, because I do think it's so, so important.

[00:11:33] Speaker 01:
They also cite these quotes like, DC and CC has good behavior.

[00:11:37] Speaker 01:
CC is reasonably useful.

[00:11:40] Speaker 01:
And the clustering studies were a success.

[00:11:43] Speaker 01:
And they also claim that this is substantial evidence.

[00:11:46] Speaker 01:
But again, this isn't directed to the empirical question of the claimed arrangement argument that we have focused our briefing on.

[00:11:54] Speaker 01:
Okay, importantly to understand is that first off, all those statements were not about search relevance.

[00:12:00] Speaker 01:
They were in fact either about subject or length or the clustering studies found in the other parts of the paper.

[00:12:07] Speaker 01:
Clustering is different than searching.

[00:12:09] Speaker 01:
It's for automated organization and classification.

[00:12:13] Speaker 01:
It's not necessarily for searching.

[00:12:14] Speaker 01:
So those are the statements even directed to search relevant.

[00:12:17] Speaker 01:
The only evidence is the table I showed you earlier.

[00:12:20] Speaker 01:
But more importantly, and I think this is the most important concept to get here,

[00:12:25] Speaker 01:
is that every one of those statements, every single one of them, were directed to search relevance.

[00:12:32] Speaker 01:
And they were, in fact, true.

[00:12:34] Speaker 01:
They would not be substantial evidence to the empirical question of the claimed arrangement problem.

[00:12:40] Speaker 01:
Just because BC and CC had good behavior in some search context, just because CC is reasonably useful in some search context does not mean that it's reasonable enough

[00:12:51] Speaker 01:
or provides a benefit over just using direct relationships to search, the empirical question.

[00:12:58] Speaker 01:
And all that can be true, and they still don't provide any benefit.

[00:13:03] Speaker 01:
The only evidence anywhere in this record that anyone would have to the empirical question of whether indirect relationships provide enough benefits over direct relationships is found in the seven tests directed at

[00:13:16] Speaker 01:
All seven tests show very substantial degradation of search results versus just using direct links.

[00:13:22] Speaker 01:
Therefore, one would not be motivated to perform that and practice the claim as a whole.

[00:13:29] Speaker 01:
But again, substantial evidence is one that can adequately support the conclusion.

[00:13:35] Speaker 01:
None of those statements, none of the tests that they rely on, are actually directed to whether indirect relationships could outperform direct links.

[00:13:44] Speaker 01:
The only ones directed to that issue

[00:13:47] Speaker 01:
are found on page 12 in the table I just showed you on page 12.

[00:13:54] Speaker 01:
And I also want to make one further point.

[00:13:57] Speaker 01:
In addition, another issue on page 16 of a reply brief is a non-semantic search.

[00:14:02] Speaker 01:
There is no positive search result.

[00:14:04] Speaker 01:
There is no recommendation.

[00:14:05] Speaker 01:
There is nothing in this paper that says you should only use BCNCC to search.

[00:14:10] Speaker 01:
It's not addressed by the board.

[00:14:12] Speaker 01:
It's not addressed by the petitioners.

[00:14:14] Speaker 01:
And I would urge the court to take a look at that

[00:14:16] Speaker 01:
argument as well because it has a similar problem of having no substantial evidence or explanation.

[00:14:21] Speaker 04:
Okay, we'll save the rest of your time for rebuttal.

[00:14:24] Speaker 01:
Thank you.

[00:14:26] Speaker 00:
Ms.

[00:14:26] Speaker 00:
Keefe.

[00:14:30] Speaker 00:
Thank you very much, Your Honors.

[00:14:33] Speaker 00:
I think the hardest thing here is the fact that the claims simply do not say what appellant wishes them to say.

[00:14:40] Speaker 00:
For example, claim 26 does not say

[00:14:43] Speaker 00:
You will only use the indirect relationships in enhancing a search.

[00:14:47] Speaker 00:
It does not say there will be an empirical benefit.

[00:14:50] Speaker 00:
It simply says use direct relationships to calculate indirect relationships and then use that for a search.

[00:14:58] Speaker 00:
That's exactly what Fox did throughout all of his thesis collections and smart papers.

[00:15:03] Speaker 00:
He used indirect relationships in testing searches.

[00:15:09] Speaker 00:
And the board below found specifically

[00:15:12] Speaker 00:
that that was in fact useful.

[00:15:14] Speaker 00:
If we turn to JA 16, which is the board's decision, the board describes the Fox thesis as describing improving query search and document representation schemes for information retrieval.

[00:15:29] Speaker 00:
That's the board's finding as to what Fox thesis was.

[00:15:34] Speaker 00:
The board cited to

[00:15:36] Speaker 00:
exhibit 1009 at 261 which is JA5510 in which Fox is describing the fact that he's trying to figure out the best ways using all of this information to improve searches or see whether or not something is going to be improved.

[00:15:52] Speaker 00:
The board goes on to say, again on JA16, that in particular useful types of bibliographic data are incorporated into a model to test clustering and retrieval functions.

[00:16:04] Speaker 00:
coming off of searches.

[00:16:06] Speaker 00:
The board found what Fox was doing with bibliographic citations, which were indirect, to be useful.

[00:16:14] Speaker 00:
There, the board is actually citing to

[00:16:18] Speaker 03:
Right, but this isn't quite getting to the other side's point.

[00:16:21] Speaker 03:
The other side's point isn't that maybe the board read the reference this way.

[00:16:27] Speaker 03:
The more pertinent question is, is that an unreasonable reading of the reference?

[00:16:32] Speaker 03:
And that, in their view, there's the only reasonable reading of the Fox papers

[00:16:38] Speaker 03:
together is a very consistent, persistent theme that you just don't get any benefit.

[00:16:46] Speaker 03:
In fact, you get degradation from using the indirect citation relationships for information retrieval searches.

[00:16:53] Speaker 00:
Absolutely not, Your Honor.

[00:16:54] Speaker 00:
In fact, a legitimate reading, as the board did below, of the papers is that when using indirect relationships, you do get improved functionality.

[00:17:05] Speaker 00:
For example, at JA5510, cross-sided in the 494 at 5640, Fox talks about the fact that in the past, the Bickler and Eaton reference, something he looked at before, had used bibliographic coupling as an additive measure to searching.

[00:17:25] Speaker 00:
And when using that as an additive measure, they found that normalized totals using bibliographic coupling and co-citation performed better

[00:17:34] Speaker 00:
than when only bibliographic coupling was using it searching.

[00:17:39] Speaker 00:
Fox says these tentative findings are supported by the more comprehensive tests in Chapter 8 below.

[00:17:45] Speaker 00:
So he's saying, yes, using BC and CC together improves the findings.

[00:17:51] Speaker 00:
It doesn't say you have to use BC and CC alone.

[00:17:53] Speaker 00:
There is nothing in the claim that says that.

[00:17:56] Speaker 00:
It simply says that using an indirect relationship may, in fact, enhance what's happening.

[00:18:00] Speaker 00:
If we go on through the remainder of the papers at JA5605, specifically a wrap-up of the chapter, Fox says that the preliminary tests with the two collections indicates that extended vectors may significantly aid retrieval performance in a feedback environment.

[00:18:19] Speaker 00:
Thus, the extended vector model in Chapter 6, illustrated and partially tested through clustering described in 7, now appears to be worthwhile for feedback purposes.

[00:18:30] Speaker 00:
He goes on to consistently talk about how BCNCC may increase value and actually enhance search.

[00:18:38] Speaker 00:
For example, also, on JA5603 in table 8.13, there is a 29.7% increase in efficiency of searching when BC is added to the search parameters.

[00:18:57] Speaker 03:
Is this the 0.009?

[00:18:59] Speaker 03:
It is.

[00:19:01] Speaker 00:
It is.

[00:19:01] Speaker 00:
But it is in fact... But it's still an indirect.

[00:19:06] Speaker 00:
It's still saying that when you use one of the indirect factors, you gain an improvement.

[00:19:11] Speaker 00:
For example, the line directly above it has only direct citations.

[00:19:15] Speaker 00:
And only direct citations, being term and link, yields only 27%.

[00:19:20] Speaker 00:
When you add in the indirect, even at 0.09 waiting,

[00:19:25] Speaker 00:
you get an improvement all the way up to 29.7.

[00:19:28] Speaker 00:
That indicates that perhaps maybe if we weighted it even higher, it might gain something even better.

[00:19:34] Speaker 00:
One of the other tables, for example, that shows a direct improvement is table 8.11 on JA5598.

[00:19:41] Speaker 00:
In table 8.11, we see in the bottom portion of the table that when indirect BC and CC are added, there's a 5.6%

[00:19:55] Speaker 00:
increase in the search results.

[00:19:59] Speaker 00:
When you also then add back in other directs, that's only using the indirect.

[00:20:03] Speaker 00:
So BCNCC yields 5.6.

[00:20:06] Speaker 00:
When you add everything else in, author, characterization, and direct links, it goes up to 12.1%.

[00:20:12] Speaker 00:
These are not numbers that you can just subtract one off of the other.

[00:20:15] Speaker 00:
Each one has its own additive factor.

[00:20:18] Speaker 00:
But if you look to just using indirects with term,

[00:20:23] Speaker 00:
BC and CC, there's a 5.6% improvement.

[00:20:27] Speaker 00:
The wrap up of every single chapter has Fox saying that these extended vectors are absolutely worth looking at.

[00:20:34] Speaker 00:
The data provided is that by using, by adding BC and CC into the mix,

[00:20:40] Speaker 00:
you gain improvements.

[00:20:43] Speaker 00:
Simply saying that BC isn't as good as term, that's no great surprise.

[00:20:47] Speaker 00:
Term is a direct word.

[00:20:49] Speaker 00:
When you look for the word that's in your search and you find the word, it's going to be better than just looking for something that's in the bibliography or in a co-citation.

[00:20:57] Speaker 00:
But what the thesis was talking about was not, is BC better than term?

[00:21:03] Speaker 00:
The thesis was talking about what happens when I add these elements, when I use indirect links as an additive portion of the searching that I'm doing.

[00:21:11] Speaker 00:
And in fact, when I do add in BCNCC, additive results are improved.

[00:21:16] Speaker 00:
And that's exactly what the board below found by saying and citing to the pages of the Fox thesis where the board found that in fact what Fox thesis was providing was useful.

[00:21:29] Speaker 00:
and in fact a useful addition to enhance search, citing directly to those pages talking about how adding in BCNCC improved the results that I cited to earlier.

[00:21:41] Speaker 00:
The board therefore had sufficient evidence to find that in fact Fox did indicate that using BCNCC

[00:21:50] Speaker 00:
was a good thing and in fact further experimentation should be done.

[00:21:54] Speaker 00:
Fox and Vision specifically did use BC and CC in its documented materials and that can be found at JA12349 in which Appellant's own expert Jacobs admits that BC and CC were within that database and so

[00:22:15] Speaker 00:
This is not something that was just thrown away, never used again.

[00:22:19] Speaker 00:
The thesis says continue to use it.

[00:22:21] Speaker 00:
One of ordinary skill in the art would read the conclusion of each chapter as saying that more research is warranted because this appears to yield very good results.

[00:22:31] Speaker 00:
And the tables included do, in fact, show that.

[00:22:34] Speaker 00:
So there absolutely is substantial evidence.

[00:22:37] Speaker 00:
And the case law tells us that if there are two ways, reasonable ways, of reading the evidence involved, you must support

[00:22:45] Speaker 00:
the finding by the board below.

[00:22:47] Speaker 00:
That's in both the Inray Moutet case and the Dome Patent case at 799 F3rd 1372.

[00:22:53] Speaker 03:
Could you give me the siting in for the Jacobs declaration?

[00:23:00] Speaker 00:
It's a J.A.

[00:23:01] Speaker 00:
I want to make sure I got this right.

[00:23:02] Speaker 00:
One, two, three, four, nine.

[00:23:05] Speaker 03:
That's what I thought you said.

[00:23:08] Speaker 03:
I'm sorry?

[00:23:09] Speaker 03:
Yeah, I thought that's what you said, but is that for this particular appeal?

[00:23:13] Speaker 00:
I apologize.

[00:23:13] Speaker 00:
No, it is actually for the 571 appeal.

[00:23:18] Speaker 00:
I apologize.

[00:23:19] Speaker 00:
That's a cross citation that I don't have back to the 352.

[00:23:22] Speaker 00:
That's in the 571 appendix.

[00:23:28] Speaker 04:
Well, please proceed.

[00:23:30] Speaker 04:
We appreciate that there's a lot of overlap in these cases, and we'll try and smooth it out as we proceed.

[00:23:36] Speaker 00:
Absolutely.

[00:23:37] Speaker 04:
So to the extent that you need to call on some of the other appeals in order to present a unified position, I think that's all right.

[00:23:46] Speaker 00:
Greatly appreciate that, Your Honor.

[00:23:48] Speaker 00:
As such, I think what we've shown is that, in fact, there is no teaching away.

[00:23:52] Speaker 00:
Case law is also clear that simply because a result is inferior to someone else's perception, that does not

[00:23:59] Speaker 00:
mandate a teaching away.

[00:24:01] Speaker 00:
The fact that, for example, 5.6 or 5.6% may seem small to some, but it is a positive result.

[00:24:07] Speaker 00:
Whether it's inferior to what someone else wanted it to be does not mean that it warrants not looking at it.

[00:24:13] Speaker 00:
Even to your honor's point about, but it's only 0.009 weight,

[00:24:19] Speaker 00:
does not mean that that is a teaching away.

[00:24:22] Speaker 00:
It's quite the opposite.

[00:24:23] Speaker 00:
It's saying, I absolutely am using it, even in a small amount.

[00:24:27] Speaker 00:
Therefore, it's warranted to continue looking at it.

[00:24:29] Speaker 00:
That is something that was, in fact, useful.

[00:24:32] Speaker 00:
And since the board found that it was useful using those pieces of information, there is sufficient evidence to support the board's findings.

[00:24:40] Speaker 00:
And we believe, therefore, that the rejection of the claims should be affirmed.

[00:24:46] Speaker 03:
Google took a license, right?

[00:24:48] Speaker 00:
After a litigation-inspired license.

[00:24:51] Speaker 00:
So the answer is yes.

[00:24:52] Speaker 00:
Google did take a license.

[00:24:54] Speaker 00:
But the license was only after litigation.

[00:24:57] Speaker 00:
And what the board found below was that because this was a litigation-based license, and we don't know what the reasoning was, it has virtually no weight.

[00:25:09] Speaker 00:
There is nothing in the record to show Google's source code, nothing in the record to show that Google gains any benefit from

[00:25:18] Speaker 00:
the claims, or even that Google performs the claims.

[00:25:21] Speaker 00:
The simple fact that they took a license may have been simply to get rid of a lawsuit and has nothing to do with whether or not they actually practiced the claims.

[00:25:27] Speaker 02:
And there's no evidence.

[00:25:29] Speaker 02:
Did Google raise 101 for whether this was eligible for a patent in the first place?

[00:25:34] Speaker 00:
This case was prior to the Supreme Court's decisions in both Bilski and Alice.

[00:25:39] Speaker 00:
And so I don't know the answer, Your Honor, but it was before that.

[00:25:43] Speaker 00:
And so that issue didn't come up in the district court, to my knowledge.

[00:25:47] Speaker 00:
But certainly, if this case were ever to come back down to the district court in this case, that would be an issue that would be front and center.

[00:25:56] Speaker 02:
Is that something that we can address now?

[00:25:59] Speaker 00:
I wish that it were.

[00:26:01] Speaker 00:
I deeply wish that it were, but it is not.

[00:26:04] Speaker 02:
Well, you don't believe in this.

[00:26:06] Speaker 00:
I wish that it were.

[00:26:07] Speaker 00:
That's all I can say.

[00:26:08] Speaker 02:
The competition for 101 under the Act.

[00:26:13] Speaker 02:
Correct.

[00:26:14] Speaker 02:
There's not saying about whether we should look at this as a quasi-jurisdictional matter.

[00:26:19] Speaker 00:
I would actually.

[00:26:20] Speaker 02:
Or the board itself, which has already declared a 101 rejection.

[00:26:26] Speaker 00:
Correct.

[00:26:26] Speaker 00:
And in fact, here, I would very much support a 101 finding, sorry, a finding that the subject matter here is not patentable in light of the Alice and Bilsky and all progeny decisions.

[00:26:39] Speaker 00:
Because here, for example, throughout the briefing, what you see

[00:26:42] Speaker 00:
is that the only thing that was claimed to have been missing was the notion of putting this on an electronic database and the board found, rightfully, that in fact the documents do suggest... How do you think we could install a 101 rejection at this point in these proceedings?

[00:26:58] Speaker 00:
I'm honestly not sure.

[00:27:00] Speaker 00:
that you can.

[00:27:01] Speaker 00:
I don't have specific support for the notion that you could.

[00:27:04] Speaker 00:
But when Judge Mayer asked the question about whether or not I thought 101 could come into play, or it might be useful, I think absolutely it would be.

[00:27:13] Speaker 00:
But I don't have any support right now for the notion that there is a case that says you can sui sponte pick it up.

[00:27:18] Speaker 00:
It is, however, an issue of law.

[00:27:20] Speaker 00:
And so it stands to reason that the court could pick it up as an issue of law, first impression, and render a decision to prevent a waste of court resources by having to send things back down, start over again, and then come back up.

[00:27:35] Speaker 02:
And to have to issue an advisory opinion, which if we rule on this is an advisory opinion.

[00:27:40] Speaker 02:
Correct.

[00:27:40] Speaker 02:
It's clearly a one on one.

[00:27:43] Speaker 00:
It certainly feels that way, Your Honor.

[00:27:44] Speaker 00:
Absolutely agree with you.

[00:27:47] Speaker 00:
But as for the issue before the panel today, I do believe that the board had sufficient evidence for everything that it found, especially the notion that this document does support using indirect relationships.

[00:28:02] Speaker 00:
And because under Dohm and Moutet, among others, if there are two ways to look at a document or any evidence and one supports the board's decision, you must go with the board's decision.

[00:28:15] Speaker 00:
And therefore, the decision should be affirmed.

[00:28:19] Speaker 00:
If you have no other questions, thank you very much.

[00:28:22] Speaker 04:
I think we're all right on this case.

[00:28:25] Speaker 04:
We'll see what arises in the others.

[00:28:28] Speaker 00:
Thank you, Your Honor.

[00:28:29] Speaker 00:
There are very, very many overlaps for at least the beginning part of the next case as well.

[00:28:33] Speaker 04:
We will try and avoid the overlaps.

[00:28:35] Speaker 04:
Thank you, Your Honor.

[00:28:36] Speaker 04:
OK, Mr. Hardy, you have a little rebuttal time.

[00:28:38] Speaker 04:
So let's concentrate on rebuttal of the issues that you've presented so far.

[00:28:44] Speaker 04:
Yes.

[00:28:44] Speaker 01:
Your Honor, the first thing I want to lead with is the first thing I began with earlier, and that is not one piece of evidence supports using indirect relationships when direct relationships are present.

[00:28:57] Speaker 01:
She just said there's mixed discussions, or you can mix characterize the art with respect to this issue.

[00:29:03] Speaker 01:
You cannot.

[00:29:04] Speaker 01:
There is only one set of results that are directed to that question, and that is the seven experimental results that we showed where you can compare Ellen

[00:29:14] Speaker 01:
to BC and CC.

[00:29:16] Speaker 01:
Now, she went through a litany of quotes throughout her presentation that she was relying on.

[00:29:22] Speaker 01:
And every single one of those, and I invite the court to take a look at those quotes, none of those quotes would support using indirect relationships when direct relationships are present.

[00:29:34] Speaker 01:
These statements that things are good or that the vector space model is useful

[00:29:38] Speaker 01:
None of it says to the specific arrangement of claim 26 where you have a first numerical representation and then you're of direct relationships, and then instead of using that to search, you're going to use the BC and CC.

[00:29:51] Speaker 01:
Now, she attempted to confuse the issue by also saying this.

[00:29:55] Speaker 01:
What she said was the claims don't require to use BC and CC.

[00:30:00] Speaker 01:
That's completely and only BC and CC.

[00:30:03] Speaker 01:
That's irrelevant.

[00:30:04] Speaker 01:
What the tests actually show.

[00:30:06] Speaker 01:
is whether you use BCNCC in combination of direct links, or in combination with terms, or in combination with any subvectors, any use of BCNCC is going to harm your search results over just using direct links alone.

[00:30:21] Speaker 01:
And that is found on the seven test results that we just looked at on page 12 of the reply group.

[00:30:26] Speaker 01:
So none of that is substantial evidence, and I invite, you know, we have, this issue is

[00:30:31] Speaker 01:
through two more appeals, invite them to point to one result that will actually show the indirect relationships have a benefit over direct relationships.

[00:30:41] Speaker 04:
All right.

[00:30:41] Speaker 04:
So I think we have the issues for a this appeal.

[00:30:44] Speaker 04:
Are you staying in place as we turn to the next case?

[00:30:49] Speaker 04:
Are you ready?

[00:30:51] Speaker 01:
I can't turn to the next case, but I still have some more to say about.

[00:30:54] Speaker 04:
Well, you've exhausted your time.

[00:30:56] Speaker 01:
Oh, I'm out of time.

[00:30:57] Speaker 01:
I'm sorry.