[00:00:00] Speaker 03:
And again, where the issues overlap, I think that we have those as well in mind as we might.

[00:00:10] Speaker 03:
So if there's anything new, please concentrate on that.

[00:00:13] Speaker 04:
Okay, sure.

[00:00:14] Speaker 04:
So the one thing I do want to talk to, and it's related both to the 571 and the 494, is back to the Fox cluster splitting cluster process that are identified here.

[00:00:24] Speaker 04:
There are two rulings by the board.

[00:00:26] Speaker 04:
One of the rulings by the board is very specifically that the display one or more nodes using actual cluster links element was not met.

[00:00:34] Speaker 04:
And it's very important.

[00:00:37] Speaker 04:
This gives us a very clean way to dispose of their appeal.

[00:00:41] Speaker 04:
On page 16 and 17 of the 494 paper, the board found that there was

[00:00:52] Speaker 04:
no disclosure of a criterion performing a subset for display.

[00:00:57] Speaker 04:
And we believe that there is substantial evidence supporting this point of view.

[00:01:03] Speaker 04:
Now, to understand the board's theory, because there's a lot in the briefing about similarity links and subvectors, a theory they allege were not being considered by the board.

[00:01:14] Speaker 04:
But the board's ruling directly implicates these as well as the theories that they did clearly set out forth in their brief.

[00:01:21] Speaker 04:
And it's very simple.

[00:01:23] Speaker 04:
Their whole theory, and to understand their whole theory, their whole theory is that the Fox Smart system returns as a search result a cluster produced from cluster splitting.

[00:01:37] Speaker 04:
OK?

[00:01:38] Speaker 04:
That what you get as a search result, it's not just some documents.

[00:01:40] Speaker 04:
You get a cluster as a search result and a whole cluster at that.

[00:01:45] Speaker 04:
And the idea is that if the cluster defines what the search result is,

[00:01:49] Speaker 04:
And the similarity links and subvectors used to create that cluster, also, they're being used to display one or more nodes or locating one or more nodes for display.

[00:02:00] Speaker 04:
That's their whole logic line.

[00:02:02] Speaker 04:
Their entire theory depends on a whole cluster being displayed.

[00:02:06] Speaker 04:
However, FoxSmart explicitly rejects that that is the case.

[00:02:11] Speaker 04:
What it shows, if I can get you to turn to JA5416,

[00:02:16] Speaker 04:
which is page 53 by the top pagination of Foxmart.

[00:02:26] Speaker 04:
Okay.

[00:02:26] Speaker 04:
And what we have is, and this is pretty complex stuff, but I think that it's just crystal clear.

[00:02:35] Speaker 04:
On page 53, what we see here is a description of the search procedure of Foxmart, and this is what they specifically rely upon.

[00:02:45] Speaker 04:
And I'm going to read.

[00:02:47] Speaker 04:
The search procedure is different than the tree creating procedure.

[00:02:51] Speaker 04:
Okay?

[00:02:52] Speaker 04:
I don't want to read ahead of you, so if you have arrived at the... Fox Smart?

[00:02:58] Speaker 04:
Yeah.

[00:02:59] Speaker 04:
Page 53 of Fox Smart.

[00:03:00] Speaker 04:
It's JA5416.

[00:03:02] Speaker 01:
I feel like my brain is going to split.

[00:03:09] Speaker 04:
What page of Fox Smart?

[00:03:11] Speaker 04:
Page 53.

[00:03:17] Speaker 04:
Yep.

[00:03:18] Speaker 04:
OK.

[00:03:18] Speaker 04:
On page 53, it describes a search procedure.

[00:03:22] Speaker 04:
And it makes it very clear that whole clusters aren't being done.

[00:03:25] Speaker 04:
The first thing it does is this.

[00:03:26] Speaker 04:
The search procedure is shown in figure 23.

[00:03:28] Speaker 04:
And that is different than the cluster tree creation procedure and the clustering procedure shown in figures 15 through 21.

[00:03:37] Speaker 04:
They rely on 21's cluster splitting procedure and the tree creation in 15 through 21.

[00:03:45] Speaker 04:
What the search procedure does is create a new tree for purposes of providing search results.

[00:03:51] Speaker 04:
And this tree is going to be based on document-to-query similarity, not the pairwise document-to-document similarity scores that they allege constitute the actual cluster links.

[00:04:02] Speaker 04:
And here's the critical sentence.

[00:04:05] Speaker 04:
Searching a clustered tree is very much like finding a correct place to add a new document.

[00:04:09] Speaker 04:
See figure 17 in the intended description.

[00:04:12] Speaker 04:
So it's saying the search procedure is like the tree-create procedure.

[00:04:15] Speaker 04:
However, it describes a very important difference.

[00:04:18] Speaker 04:
However, searching has a different objective.

[00:04:21] Speaker 04:
Instead of finding a single twig where insertions should follow, one would like to retrieve and rank documents so all relevant documents, regardless of what cluster they appear in, are retrieved as soon as possible.

[00:04:34] Speaker 04:
So what it explicitly states here is all relevant documents are going to be presented to the user irrespective of the cluster membership.

[00:04:42] Speaker 04:
So the whole theory, the rest of the idea that a cluster is a search result, that's not true.

[00:04:47] Speaker 04:
What this system does is it provides search results irrespective of what their cluster is.

[00:04:53] Speaker 04:
And that's explicitly contradicted.

[00:04:55] Speaker 04:
This is substantial evidence that supports the verdict or the decision in our case.

[00:05:01] Speaker 04:
And secondly, I want to point out and direct myself to the very sense they rely upon for this idea that clusters, whole clusters, are displayed search results.

[00:05:10] Speaker 04:
If you flip the page to page 54 and go to the bottom paragraph, what we'll see is this sentence here.

[00:05:18] Speaker 04:
It's the bottom paragraph, second to last sentence.

[00:05:21] Speaker 04:
It says, first or further, most of the documents in the retrieved cluster are presented to the user fairly quickly.

[00:05:29] Speaker 04:
So what they do is they crop out the word most of in their brief, and they just say documents in a retrieved cluster are presented to the user, close quote, for the support that a cluster from cluster splitting is what the search result is.

[00:05:41] Speaker 04:
But what this sentence clearly shows is not the fact that a cluster is being displayed based upon cluster splitting, but it clearly shows it's going to be displayed if you keep on reading in the part that they did not cite.

[00:05:55] Speaker 04:
It says very quickly, though those with negligible query to document similarity will be bypassed until much later.

[00:06:02] Speaker 04:
Query to document similarity is very key here.

[00:06:06] Speaker 04:
Query to document similarity is not used in the tree creation process.

[00:06:09] Speaker 04:
not used in the cluster splitting process.

[00:06:13] Speaker 04:
What they rely on is a pairwise document to document similarity.

[00:06:16] Speaker 04:
What query to document similarity is a comparison of a query to a document or using search terms.

[00:06:22] Speaker 04:
It's very different than the things that created the cluster tree.

[00:06:25] Speaker 04:
It's not the same thing.

[00:06:26] Speaker 04:
And more importantly, query document similarity cannot use BC or CC.

[00:06:32] Speaker 04:
And we're going to see this.

[00:06:34] Speaker 04:
If we turn to page 38 of Fox Smart,

[00:06:37] Speaker 04:
What you see here on page 38 of FoxSmart is that a query under the FoxSmart system is a user-supplied query that begins in a natural language form.

[00:06:50] Speaker 04:
What we're talking about is a natural language query on page 38.

[00:06:55] Speaker 04:
Now, I'm going to move to page 41, and it further describes the process.

[00:07:03] Speaker 04:
of submitting a query on page 41 of FoxMart.

[00:07:06] Speaker 04:
It says, user submits initial query, and then in processing the query, step two on page 41 says, it considers terms, authors, and dates.

[00:07:17] Speaker 04:
These are all semantical factors associated with a natural language query.

[00:07:21] Speaker 04:
What's missing is no BC and CC in computing document to query similarity.

[00:07:27] Speaker 04:
And there's a good reason why.

[00:07:29] Speaker 04:
One, a document cannot cite to a query,

[00:07:32] Speaker 04:
And a query can't cite to a document.

[00:07:35] Speaker 04:
So this similarity score inherently can't use BC and CC.

[00:07:40] Speaker 04:
And so not only these things they point to, rely upon, show that a whole cluster is not being displayed.

[00:07:45] Speaker 04:
They reveal that the whole house cards comes down, that search actually relies on a method that is not considered BC or CC.

[00:07:52] Speaker 04:
It is basically a semantically-based search.

[00:07:55] Speaker 04:
And so I think that these facts are very important in both the obvious context and the

[00:08:01] Speaker 04:
anticipation context that's actually before hearing the court, is these things aren't being used to search.

[00:08:08] Speaker 04:
And you see, he says it's obvious because once you understand that BC and CC can be used in similarity, that we can use that to cluster.

[00:08:16] Speaker 04:
However, it doesn't address the question.

[00:08:17] Speaker 04:
This claim is about searching ultimately with this stuff, not just clustering.

[00:08:21] Speaker 04:
In other words, providing search results on that.

[00:08:23] Speaker 04:
And what's ultimately shown here is no one here had the idea of using these things to actually provide search results.

[00:08:29] Speaker 04:
And there's a good reason why, because as other paper shows, BC and CC aren't particularly good.

[00:08:35] Speaker 04:
But in any case, this is substantial evidence that supports the decision with respect to display elements by the board.

[00:08:48] Speaker 04:
And one last thing.

[00:08:48] Speaker 04:
I want to address one thing she said.

[00:08:51] Speaker 04:
She read a quote where she said it shows a benefit in direct relationships versus direct relationships.

[00:08:58] Speaker 04:
The quote actually says direct and indirect co-citations.

[00:09:03] Speaker 04:
And I don't want anyone to be confused by it.

[00:09:06] Speaker 04:
A direct co-citation is still an indirect relationship.

[00:09:10] Speaker 04:
Direct co-citations are explained on page 239 through 40 of Fox thesis.

[00:09:17] Speaker 04:
And the one thing she pointed to that says it showed that indirect relationships would provide a benefit over direct relationships is false.

[00:09:25] Speaker 04:
is that what that actually was referring to is co-citations direct and co-citations.

[00:09:31] Speaker 04:
And a co-citations direct is when A and B directly co-cite each other versus having a common third node that co-cites the both of them.

[00:09:38] Speaker 04:
And that's described on page 239.

[00:09:40] Speaker 04:
And so I want to make sure that that one quote is not misunderstood.

[00:09:44] Speaker 04:
And the part about being reasonably useful in her quote was, again, versus terms, not directives.

[00:09:49] Speaker 04:
So again, this is not substantial evidence directed to the question.

[00:09:53] Speaker 04:
I don't want anyone to be confused by the citation that she made.

[00:09:56] Speaker 04:
Thank you.

[00:09:57] Speaker 03:
Thank you.

[00:09:58] Speaker 03:
Ms.

[00:09:58] Speaker 03:
Keefe, do you need a minute to respond to what sounds to me like a new argument?

[00:10:06] Speaker 00:
Your Honor, I thought that that

[00:10:07] Speaker 03:
The entire portion was over, but... It is over, but since it's been raised, perhaps we want to be sure that we have it straight.

[00:10:15] Speaker 00:
Absolutely, Your Honor.

[00:10:16] Speaker 00:
My response to that would simply be the document speaks for itself.

[00:10:20] Speaker 00:
The document talks about the fact that using indirect relationships yields a benefit.

[00:10:26] Speaker 00:
If you look directly to the citation that I gave, it absolutely shows that.

[00:10:30] Speaker 00:
That's all I would have to say.

[00:10:31] Speaker 03:
Okay.

[00:10:31] Speaker 00:
Thank you very much, Your Honor.

[00:10:33] Speaker 00:
I appreciate the time.

[00:10:34] Speaker 03:
Thank you, Mr. Seibert.

[00:10:39] Speaker 02:
Thank you, Your Honor.

[00:10:42] Speaker 02:
If I may start with the court's permission with the display element raised by counsel and then try to clear that up quickly, I hope, and then move to the other issues.

[00:10:53] Speaker 02:
The reason that related documents are clustered together in an information retrieval system is in order to retrieve those documents in response to a query.

[00:11:04] Speaker 02:
And the only reason and essentially what it means to retrieve documents or at least a list of documents in response to a query is to display that information to the person making the query.

[00:11:16] Speaker 02:
We're all familiar with how searching works in any type of electronic library.

[00:11:22] Speaker 02:
You enter a query, you get search results that are displayed to you.

[00:11:27] Speaker 02:
That's simply how it works.

[00:11:29] Speaker 02:
It's quite elemental.

[00:11:30] Speaker 02:
And the court doesn't need to take my word for it because

[00:11:35] Speaker 02:
Dr. Fox says, in Fox Smart, clustered search allows retrieval of groups in response to query submission.

[00:11:46] Speaker 02:
And that is, and I apologize, I also have a mixed bag of record citations, but this is in the 1649 case, and the site to that is JA10270.

[00:12:04] Speaker 02:
With that background in mind, let me turn to what council said about the display step.

[00:12:09] Speaker 02:
And the first thing to say about the display step is the board did find that the display step in claim one was not satisfied.

[00:12:18] Speaker 02:
It found that solely because the display step recites, it says using the actual cluster links.

[00:12:26] Speaker 02:
And the board said, well, we previously found that there weren't actual cluster links.

[00:12:30] Speaker 02:
that are derived from the candidates and therefore you don't meet this step either.

[00:12:35] Speaker 02:
The board did not independently talk about the display element as not itself as not being present.

[00:12:41] Speaker 02:
And it is clearly taught that you're going to when you have the cluster and you use the cluster, you're going to display using the cluster links.

[00:12:52] Speaker 02:
And I think the quotation that council himself used demonstrates that.

[00:12:57] Speaker 02:
Further, most of the documents in a retrieved cluster are presented to the user fairly quickly, though those with negligible document query similarity will be bypassed until much later.

[00:13:09] Speaker 02:
What that's saying is if I type in a query, the system will return most of the documents in the cluster to me.

[00:13:16] Speaker 02:
What he's saying is the system will do something slightly more advanced, which is if some of the documents within the cluster

[00:13:23] Speaker 02:
seem, based on some additional processing, to be unrelated to my query, what he says negligible query document similarity, those won't be shown to me until at least later in the process.

[00:13:35] Speaker 02:
So it's trying to pick the most helpful documents within the cluster to show the submitter of the query first, early in the process.

[00:13:45] Speaker 02:
But the claim limitation is displaying documents using the actual cluster links.

[00:13:52] Speaker 02:
So a query is entered.

[00:13:54] Speaker 02:
The system looks at the cluster that most closely matches the query.

[00:14:00] Speaker 02:
In order to do that, it's using the cluster links that have been created.

[00:14:04] Speaker 02:
And it then does some additional processing and makes some judgments about these documents within the cluster are most related.

[00:14:12] Speaker 02:
And I'm going to show those first.

[00:14:13] Speaker 01:
When it talks about cluster links, am I supposed to be thinking of documents?

[00:14:18] Speaker 02:
What am I supposed to be thinking of?

[00:14:20] Speaker 02:
It's really the links between documents.

[00:14:21] Speaker 02:
Yeah.

[00:14:22] Speaker 02:
So in a graph, you have nodes, circles, or blocks, or whatever you want to call them, and edges, which are lines between them that are relationships between them.

[00:14:33] Speaker 02:
The cluster links, the nodes are, in this case, are the actual documents.

[00:14:38] Speaker 01:
Right.

[00:14:38] Speaker 01:
So but they're clusters of not of nodes, but clusters of links?

[00:14:44] Speaker 02:
The links, the way that I would put it is that the links define the cluster.

[00:14:50] Speaker 02:
So you might have a cluster, I think it's helpful to think of real world examples, you might have a cluster of documents of, you know, French poetry, documents relating to French poetry.

[00:15:01] Speaker 02:
And the system, the system doesn't think French poetry, but the system performs a programmatic analysis and concludes that these documents are closely enough related to each other

[00:15:13] Speaker 02:
that I'm going to call them a cluster.

[00:15:16] Speaker 02:
And how does it decide whether or not they're closely related?

[00:15:20] Speaker 02:
It looks at a number of things.

[00:15:21] Speaker 02:
Is there overlapping language?

[00:15:23] Speaker 02:
Do they cite each other?

[00:15:24] Speaker 02:
Do they both repeatedly cite the same thing, which is indirect citation?

[00:15:29] Speaker 02:
That's an indication that they're related, et cetera.

[00:15:31] Speaker 02:
So the process that's described in Fox Smart, and in fact, both in the tree formation process and in the cluster splitting process,

[00:15:42] Speaker 02:
which is just kind of an iterative process that continually happens to maintain the health of the cluster tree, is identical to what's disclosed as the preferred embodiment of the patent.

[00:15:55] Speaker 02:
It calculates a bunch of relationships.

[00:15:57] Speaker 02:
It's got a bunch of documents.

[00:15:58] Speaker 02:
It calculates relationships that it wants to, in order to figure out how to cluster them together, it compares the strength of those similarity relationships, and it picks the strongest ones

[00:16:12] Speaker 02:
and the strongest ones, it says, I'm going to cluster these together and make one cluster.

[00:16:17] Speaker 02:
I'm going to cluster these together and make another cluster.

[00:16:20] Speaker 02:
And I did, with Your Honor's permission, want to go back to the tree formation process, which was the predicate of Your Honor's earlier question about 102 versus 103.

[00:16:33] Speaker 02:
And just point out, because the board did consider that.

[00:16:37] Speaker 02:
And I want to at least explain how

[00:16:40] Speaker 02:
the board aired and where it went astray in thinking about that process.

[00:16:44] Speaker 02:
So the tree formation process, if you distinguish it from cluster splitting, works by there's an existing tree, a new document is put into the library, and the system again says, OK, what cluster am I going to put this in?

[00:17:01] Speaker 02:
And so in that case, what the system does is, again, for that particular document, which would be a selected node for analysis,

[00:17:10] Speaker 02:
It calculates a similarity value between that document and every single other document in the system.

[00:17:17] Speaker 02:
And then it performs further processing in order to determine which cluster to add that document to.

[00:17:26] Speaker 02:
So what are called subvectors that essentially rows in a table, columns in a table,

[00:17:33] Speaker 02:
that contain information.

[00:17:34] Speaker 01:
The claim is for analyzing data in a database and selecting a node for analysis.

[00:17:40] Speaker 01:
I mean, I guess to me that reads more like everything is already pre-existing in the database and now we're going to choose one of those documents and try to figure out the relationships of all the other documents in the database to that particular selected one.

[00:17:58] Speaker 01:
So I don't quite read it as we're going to

[00:18:02] Speaker 01:
try to shove a brand new document into a pre-existing database with a bunch of other documents already in there?

[00:18:09] Speaker 02:
Well, but the document is in the database when it's analyzed.

[00:18:14] Speaker 02:
I mean, I don't know that Fox necessarily would make that distinction at all or recognize it as significant.

[00:18:23] Speaker 02:
You could start with, however you start, you could start with a tree

[00:18:28] Speaker 02:
The more normal use case if you're maintaining an electronic library is you already have something, and new things are coming into the collection constantly.

[00:18:36] Speaker 02:
But you could start with a bunch of documents and say, I want to form clusters out of them.

[00:18:41] Speaker 02:
It's the same process.

[00:18:43] Speaker 02:
The process is you calculate the similarity value between the document and the other documents.

[00:18:48] Speaker 02:
And incidentally, I do want to say that the document is in the database by the time you're doing that.

[00:18:53] Speaker 02:
It gets added, and then it's there, and then you've got to figure out where in the tree

[00:18:58] Speaker 02:
you want to insert it.

[00:18:59] Speaker 01:
And that's where the tree formation process begins, right?

[00:19:03] Speaker 02:
Well, I guess the way that I was describing it, in that particular example, the tree exists.

[00:19:11] Speaker 02:
There is a tree.

[00:19:12] Speaker 02:
There is a Lexus.

[00:19:14] Speaker 02:
So you take Lexus.

[00:19:16] Speaker 02:
So clustering is used for things like more like this.

[00:19:20] Speaker 02:
I like this case.

[00:19:22] Speaker 02:
Show me more cases that are like this case.

[00:19:24] Speaker 02:
So it will return documents that it's determined are similar to the case that you've selected somehow that are essentially in a cluster.

[00:19:34] Speaker 02:
So Lexis exists.

[00:19:36] Speaker 02:
The Lexis database exists.

[00:19:38] Speaker 02:
But obviously new cases are constantly being added to the database.

[00:19:42] Speaker 02:
And so those get ingested by Lexis.

[00:19:46] Speaker 02:
I'm simply using Lexis as an example.

[00:19:49] Speaker 02:
Those are ingested by Lexis, and then the system does some processing and says, what cluster or clusters am I going to put this in?

[00:19:59] Speaker 02:
And so it then calculates a similarity value between that new case that it's analyzing and all the other cases.

[00:20:07] Speaker 02:
I don't know specifically whether Lexis does all the other cases, but again, this is just an example.

[00:20:12] Speaker 02:
And then it compares the values, and it says, in what cluster am I going to put this?

[00:20:19] Speaker 02:
That is precisely what the patent describes as the preferred embodiment of this generating candidate links and then deriving actual links.

[00:20:30] Speaker 02:
And where the board went astray, and I have to say, in defense of the board, these proceedings were quite unwieldy below.

[00:20:40] Speaker 02:
There were something like over 8,000 pages submitted only of briefing

[00:20:47] Speaker 02:
expert declarations and deposition transcripts, 8,000 to 9,000 pages, and then thousands of pages of exhibits on top of that.

[00:20:57] Speaker 02:
And the board certainly got most of it right.

[00:20:59] Speaker 02:
But where they went astray on this particular issue was they said, well, we're looking at the fully formed tree, the already existing fully formed tree, as we're going to say that's the candidate.

[00:21:14] Speaker 02:
Those are the candidate links.

[00:21:16] Speaker 02:
And then they kind of said, well, there's nothing that happens after that that illuminates things from the tree that would get to the actual links.

[00:21:26] Speaker 02:
And so therefore, you haven't demonstrated or Fox didn't teach the deriving step of the claims.

[00:21:34] Speaker 02:
Where that analysis went astray is that they should have gone, and this is the argument that we made, they should have gone one step back in the workflow for the candidates.

[00:21:45] Speaker 02:
The candidate links are the system looks at, takes ingest a new document, looks at all the other documents, and computes similarity values based on subvectors, BC, CC, potentially other ones, to try to figure out how related is this, how similar is this document to these other documents.

[00:22:08] Speaker 02:
Those are the, and it's doing it, let's be clear, for the purpose of clustering.

[00:22:12] Speaker 02:
It's saying I want to figure out what group to put this document in.

[00:22:16] Speaker 02:
I'm first going to figure out how similar is it to all these other documents.

[00:22:21] Speaker 02:
Those are the candidates.

[00:22:23] Speaker 02:
And then it says, OK, I'm going to put this in the French poetry cluster.

[00:22:27] Speaker 02:
And so it says that's where I'm going to put it.

[00:22:31] Speaker 02:
Those become the actual links.

[00:22:34] Speaker 02:
So to say that the fully formed tree are the candidates, yes, that probably does lead to

[00:22:41] Speaker 02:
a dead end, but that's not what Fox taught and what we argued.

[00:22:47] Speaker 02:
What Fox taught is you look at, it's intuitive, I believe.

[00:22:53] Speaker 02:
I mean, you have a new document, you calculate the similarity, you compare the similarity that you've calculated among the various documents, and you pick the stronger ones in order to cluster.

[00:23:05] Speaker 02:
And I guess the last thing I'd say about this, again,

[00:23:11] Speaker 02:
is I do believe in thinking about the cross appeal, it's important to take a step back and look at the sole element, this element that was found to be lacking.

[00:23:23] Speaker 02:
And again, one would read the patents, the Egger patents, and believe that there are plenty of things that Mr. Egger thought were inventive and novel and innovative about those patents.

[00:23:34] Speaker 02:
He turns out not to have been correct, but he presumably thought they were, and specifically the idea of using indirect

[00:23:41] Speaker 02:
citation relationships to calculate similarity and to improve search.

[00:23:46] Speaker 02:
This particular idea that's the deriving step that the board found not to be taught is not something that one would ever read the patent specifications and think was supposed to be an inventive or novel idea or step.

[00:24:01] Speaker 02:
In fact, the specifications say almost the exact opposite.

[00:24:04] Speaker 02:
They say almost nothing about the deriving step other than they say,

[00:24:09] Speaker 02:
They call it a simple matter of selecting or choosing the top-rated links and eliminating the rest.

[00:24:17] Speaker 03:
Do you recall, as in the other case, whether on the cross-appeal, whether the petition was limited to 102?

[00:24:26] Speaker 02:
I believe, Your Honor, that we did petition on 102 grounds, and I believe we did it on the basis that we thought it was clearly there.

[00:24:35] Speaker 03:
We know it was granted on 102, but there was no reference to 103.

[00:24:38] Speaker 02:
I don't believe, we may have, and this is something I need to go back to the petition to check, we may have said something along the lines of, we think this is here explicitly.

[00:24:47] Speaker 02:
To the extent it's not, it would be obvious.

[00:24:51] Speaker 02:
But I believe that the ground of the petition was 102.

[00:24:54] Speaker 02:
I would say, I mean, I think for all the reasons I've said, I believe that this step, find some candidates, pick the strongest candidates, and use those as the actual ones.

[00:25:08] Speaker 02:
is explicitly taught in the Fox papers, both in the cluster splitting and reformation process, and also in which the board, I think everyone agrees, did not engage with, and also in the tree formation process, which the board did consider, but in our view, got wrong.

[00:25:29] Speaker 03:
OK.

[00:25:29] Speaker 03:
Thank you.

[00:25:30] Speaker 03:
We have a few seconds left for rebuttal.

[00:25:35] Speaker 03:
Let's see where we started.

[00:25:37] Speaker 04:
Your honor, the first thing I want to lead with is discussing Mr. Silbert's comments about what the board found with respect to the display on it.

[00:25:45] Speaker 04:
He's characterized this as being the same ruling that's found with deriving the actual cluster links that's talked about preceding.

[00:25:54] Speaker 04:
That's completely false.

[00:25:55] Speaker 04:
These are two separate and independent bases of why claim one was not anticipated.

[00:26:03] Speaker 04:
What he specifically found is that the display element was not met, and this is why.

[00:26:08] Speaker 03:
But he was talking about claims of the breadth for which you're arguing, not claims limited to a lot of the limitations you've been explaining to us this morning.

[00:26:19] Speaker 04:
I am sorry.

[00:26:20] Speaker 04:
I don't understand your question, Your Honor.

[00:26:22] Speaker 03:
I'm trying to put this in the context of the claims themselves.

[00:26:27] Speaker 03:
You've been explaining to us a lot of limitations, a lot of background,

[00:26:31] Speaker 03:
a lot of differences that are not in the claims themselves.

[00:26:36] Speaker 04:
Oh, Your Honor, what I'm specifically talking about with respect to this element is this element displaying one or more nodes using actual cluster links.

[00:26:47] Speaker 04:
It's the last element of claim one of the 494 patent that we were discussing.

[00:26:52] Speaker 04:
And specifically, he characterized the board's decision as not providing an independent basis beyond the

[00:26:59] Speaker 04:
discussion of deriving a subset in the deriving element.

[00:27:03] Speaker 04:
But the display element, there's a separate basis that he is not addressed anywhere in his papers, nor is he addressed up here.

[00:27:10] Speaker 04:
And he's incorrect when he says there's not an independent basis.

[00:27:13] Speaker 04:
And I'd like to direct the court to page 16 of the final written decision.

[00:27:34] Speaker 04:
For the 494 patent.

[00:27:49] Speaker 04:
Okay.

[00:27:49] Speaker 04:
So at the bottom of page 16, I'm going to begin reading and explaining what the board actually found here.

[00:27:57] Speaker 04:
We begin with the last paragraph on page 16.

[00:28:00] Speaker 04:
We are not persuaded that Fox Smart's description of ranking documents discloses deriving a subset, because a set of ranked documents provides an indication of an order of presentation, but is not a subset.

[00:28:16] Speaker 04:
It goes on to say, additionally, Fox Smart indicates documents from multiple clusters are ranked.

[00:28:23] Speaker 04:
So what it's saying here right now is that the Fox Smart system only ranks the documents.

[00:28:29] Speaker 04:
It never has a cutoff.

[00:28:31] Speaker 04:
to display a subset of less than the whole database.

[00:28:35] Speaker 04:
The entire database, the entire tree, everything is ultimately provided as a search result in ranked order based upon document to query similarity.

[00:28:45] Speaker 04:
There's no attempt to use the cluster as defining a specific subset in the database to display.

[00:28:52] Speaker 04:
In this statement here, Foxpart indicates documents from multiple clusters are ranked.

[00:28:56] Speaker 04:
There's a direct reputation that the search results are

[00:28:59] Speaker 04:
are single clusters.

[00:29:01] Speaker 04:
What's being presented is all documents in the database in rank order.

[00:29:06] Speaker 04:
And it goes on to say, furthermore, petitioner does not point to disclosure in Fox Smart of criteria for forming a subset.

[00:29:14] Speaker 04:
In other words, if you look at the ranking procedure on 5416 that we just looked through, that search procedure, it is an attempt to display a cluster.

[00:29:22] Speaker 04:
It ranks all documents in the entire tree, irrespective of cluster.

[00:29:26] Speaker 04:
and spits out a ranked order of all the results.

[00:29:30] Speaker 04:
Never does it find a subset.

[00:29:32] Speaker 04:
And because there's not a subset of nodes ultimately being located for display, but rather all nodes are being displayed, there's not an actual cluster link that subjected the criterion used to locate nodes.

[00:29:46] Speaker 04:
None of the things they point to actually influence whether you're going to be displayed.

[00:29:49] Speaker 04:
You're going to be displayed, period, regardless

[00:29:52] Speaker 04:
by your presence in Fox's database.

[00:29:55] Speaker 04:
And it has nothing to do with what cluster you are in, or what your similarity link is, or any of these things.

[00:30:00] Speaker 04:
This is what the board has found right here.

[00:30:02] Speaker 04:
And they have not addressed this.

[00:30:04] Speaker 04:
They have not identified any criterion that would define a subset of nodes for display.

[00:30:11] Speaker 04:
And since nodes aren't being located for display, they're all being presented, you don't have an actual cluster link or display using the actual cluster links element.

[00:30:20] Speaker 04:
So I think that's very important.

[00:30:22] Speaker 04:
I think I also want to point out, he made this assertion that clustering's only use is for providing search results.

[00:30:28] Speaker 04:
Now the primary was, searching and clustering are distinct aspects of information retrieval.

[00:30:33] Speaker 04:
Clustering is used for automated classification in ways to be able to take a database and cluster or organize it in a way without having humans to look at it.

[00:30:44] Speaker 04:
Okay, that's one aspect of IR.

[00:30:45] Speaker 04:
That doesn't necessarily mean it's going to be used for providing search results.

[00:30:49] Speaker 04:
If you look on page 17 of

[00:30:52] Speaker 04:
or 68 at the 571 reply brief, we've depicted an output of the Fox Smart system.

[00:30:58] Speaker 04:
And what it shows is all documents are being displayed.

[00:31:01] Speaker 04:
And that there are only four clusters, period, among the 52 documents of this alleged database being used.

[00:31:07] Speaker 04:
Let's think about that for a second.

[00:31:09] Speaker 04:
Really, there's only four responses that you can have, no matter what your search query is.

[00:31:13] Speaker 04:
That doesn't make any sense.

[00:31:16] Speaker 04:
The idea that these clusters are going to be presented that way, there's only four possible responses.

[00:31:21] Speaker 04:
In other words, they fundamentally misinterpreted this idea that you're going to compare the clusters, have the highest cluster to query similarity is going to be displayed.

[00:31:31] Speaker 04:
It doesn't say that.

[00:31:33] Speaker 04:
In fact, what it says is document to query similarity, not cluster to query similarity, document to query similarity in determining what's displayed.

[00:31:41] Speaker 04:
But in any event, since all documents are going to be displayed, regardless of what cluster they are, or regardless of their BC and CC links, or any of these things,

[00:31:51] Speaker 04:
This is not a search system that is using indirect relationships to provide search results, or the clusters, or the similarity links, or the subvectors to provide search results.

[00:32:02] Speaker 04:
All things are displayed.

[00:32:04] Speaker 04:
And again, I'd also remind you for page 68.

[00:32:06] Speaker 03:
We need to wrap it up with one final statement.

[00:32:10] Speaker 04:
Yes.

[00:32:10] Speaker 04:
Your honor, so I believe that this constitutes substantial evidence to affirm the portions of the board's decision that supported us.

[00:32:19] Speaker 04:
And again, I believe the defendants have not provided any substantial evidence that shows that indirect relationships can provide a benefit over direct relationships.

[00:32:28] Speaker 04:
Consequently, those very strong and powerful teachings would discourage one from practicing the combination as a whole and the decision rendered in favor of us.

[00:32:36] Speaker 03:
Thank you, Your Honor.

[00:32:38] Speaker 03:
Thank you.

[00:32:39] Speaker 03:
Mr. Silbert, a couple of minutes.

[00:32:41] Speaker 03:
Thank you very much, Your Honor.

[00:32:43] Speaker 03:
Just concentrate on rebuttal, please.

[00:32:46] Speaker 02:
Thank you.

[00:32:51] Speaker 02:
Just on the displaying step, the portion of the record that counsel read

[00:32:55] Speaker 02:
says, we are not persuaded that Fox Smart's description of ranking documents discloses deriving a subset, because a set of ranked documents provides an indication, and it goes on.

[00:33:07] Speaker 02:
So the deriving a subset is part of the claim construction that the board applied to deriving actual cluster links from candidate links.

[00:33:18] Speaker 02:
So in other words, they said the actual links need to be a subset of the candidate links, and they found that that wasn't taught.

[00:33:25] Speaker 02:
incorrectly, but that they found that that wasn't taught in the Fox papers.

[00:33:29] Speaker 02:
The point they're making about the display is there is no subset of actual links that's used to create a display.

[00:33:39] Speaker 02:
Forgive the pun or phrasing, but it's derivative of their conclusion on the deriving step.

[00:33:46] Speaker 02:
This was the point we made.

[00:33:47] Speaker 02:
Once the court concludes, and we believe it should conclude, that the deriving step

[00:33:52] Speaker 02:
deriving actuals from candidates was taught, then the display step is also taught.

[00:33:59] Speaker 02:
But again, I don't think the court needs to look further than Dr. Fox's statement that clustered searching allows retrieval of groups of documents in response to a query.

[00:34:12] Speaker 02:
It's quite basic.

[00:34:13] Speaker 02:
When related documents are clustered together in an information retrieval system, a query returns.

[00:34:21] Speaker 02:
or can return a group, the cluster of documents.

[00:34:26] Speaker 02:
In sum, we don't believe that the deriving step or the display step, which are both within the context of these patents and even outside that context, quite routine elemental steps that are there in the claim but are simply being recited, should hold up the finding of invalidity on these particular claims.

[00:34:50] Speaker 02:
if all the other limitations are met, which we believe that they are.

[00:34:55] Speaker 03:
Okay.

[00:34:56] Speaker 03:
Thank you.

[00:34:56] Speaker 03:
Thank you, counsel.

[00:34:57] Speaker 03:
The case was well presented, complicated issues.

[00:35:01] Speaker 03:
The three cases are taken under submission.

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

[00:35:05] Speaker 00:
Thank you, Your Honor.