[00:00:23] Speaker 03:
We will hear argument next in number 161174, Personal Web Technologies versus Apple.

[00:00:36] Speaker 03:
Whenever you're set and ready, don't rush.

[00:00:46] Speaker 05:
Mr. Hadley?

[00:00:47] Speaker 05:
Good morning, Your Honors.

[00:00:48] Speaker 05:
May it please the Court

[00:00:50] Speaker 05:
The language of each independent claim in this appeal, claims 24, 81, and 86, all have a limitation that recites taking a content-dependent name and comparing that name against a plurality of values.

[00:01:06] Speaker 05:
This is a key limitation in the 310 patent.

[00:01:09] Speaker 05:
It's what allows the invention to store and locate data in different servers in different locations without knowing either the

[00:01:19] Speaker 05:
address or the naming systems that are used in those various servers in different locations.

[00:01:27] Speaker 01:
I have a quick housekeeping question.

[00:01:28] Speaker 01:
I thought the claims at issue were 24, 32, 81, and 86, and I think you didn't mention 32.

[00:01:37] Speaker 01:
Was that intentional?

[00:01:38] Speaker 05:
32 is a dependent claim, and my comment was the independent claims.

[00:01:44] Speaker 05:
32 depends on 24.

[00:01:46] Speaker 03:
Thank you.

[00:01:47] Speaker 03:
One more housekeeping, sorry, but 82?

[00:01:49] Speaker 05:
81 and 86.

[00:01:52] Speaker 03:
Is 82 here?

[00:01:53] Speaker 05:
82 is not here.

[00:01:55] Speaker 03:
Well, 82... You said in your footnote 70 is not here.

[00:01:59] Speaker 03:
70 is not here.

[00:02:00] Speaker 03:
But you've listed in your statement of issues 2432, 81 and 86, so I didn't know what to do about 82.

[00:02:08] Speaker 05:
I stand corrected again.

[00:02:09] Speaker 05:
82 depends on 81.

[00:02:11] Speaker 05:
But it is in the appeal.

[00:02:12] Speaker 05:
It is in the appeal.

[00:02:13] Speaker 05:
The board chose 70 as its representative claim, right?

[00:02:17] Speaker 04:
That's correct, Your Honor.

[00:02:20] Speaker 01:
But did it treat all the claims as rising or falling together?

[00:02:23] Speaker 01:
Or did it treat the claims as rising or falling with claim 70?

[00:02:29] Speaker 01:
Did you argue them separately?

[00:02:32] Speaker 05:
We argued them separately.

[00:02:33] Speaker 05:
The board's decision was a little bit unclear in that regard.

[00:02:37] Speaker 05:
It called claim 70 a representative claim.

[00:02:39] Speaker 05:
The claim 70 plainly has different language.

[00:02:43] Speaker 05:
that we pointed out in the patent donor's response in the IPR, namely claim 70 talks about determining whether one of these content-dependent identifiers is in a database, as opposed to independent claims 24, 81, and 86, which all have the language of taking the content-dependent name and comparing it against the plurality of values.

[00:03:09] Speaker 05:
That language is not in claim 70.

[00:03:12] Speaker 05:
we did not appeal Claim70, honestly, for the reason that Claim70's language is a bit broader in regard with respect to what you compare the content-dependent name to.

[00:03:25] Speaker 04:
And I guess because the board at A15 specifically made a finding about a particular reference teaching the comparing the identifier to a plurality of values, I guess it's your view that

[00:03:42] Speaker 04:
the board necessarily reached, passed on, commented on the other claims aside from just what was representative claim 70?

[00:03:51] Speaker 05:
That's correct, Your Honor.

[00:03:52] Speaker 05:
At page 15 of the decision, the board expressly addressed the limitation of comparing the content-dependent name against a plurality of values.

[00:04:03] Speaker 05:
And the board found that the claims at issue in this appeal

[00:04:10] Speaker 05:
were all invalid for obviousness based on Woodhill and Steffic.

[00:04:14] Speaker 05:
And in the final written decision, what the board said was, we find that this limitation of comparing a content-dependent name against a plurality of values is in the Steffic reference.

[00:04:29] Speaker 05:
Didn't say anything about it being in the Woodhill reference.

[00:04:33] Speaker 05:
And the only evidence that the board cited for the finding

[00:04:37] Speaker 05:
that Stefik disclosed comparing the content-dependent name against the plurality of values was page 42 of the petitioner's Apple's petition for IPR.

[00:04:50] Speaker 05:
That's at appendix page 1045.

[00:04:53] Speaker 05:
And if you go to appendix page 1045, what you see in regard to that is nothing.

[00:04:58] Speaker 05:
There is not a single word in page 1045 of the appendix, Apple's petition, page 42,

[00:05:06] Speaker 05:
that even talks about comparing a content-dependent name against a plurality of values.

[00:05:12] Speaker 05:
What that page talks about is some authorization and access, but it says nothing about comparing a content-dependent name against a plurality of values.

[00:05:25] Speaker 05:
And in fact, there's good reason why the board did not cite to the Stefic patent itself.

[00:05:32] Speaker 05:
It's not in there.

[00:05:33] Speaker 05:
There is nothing in the Stefic patent that talks about comparing anything against the plurality of values.

[00:05:39] Speaker 05:
Stefic has essentially two pieces of data that could be relevant.

[00:05:46] Speaker 05:
One is what it calls a unique identifier.

[00:05:48] Speaker 05:
But this is not a content dependent name.

[00:05:50] Speaker 05:
The unique identifier is assigned by the server to a piece of data.

[00:05:55] Speaker 05:
So take, for example, the New York Times.

[00:06:00] Speaker 05:
And it may have a bunch of articles, say,

[00:06:03] Speaker 05:
an article on Clemson winning the national championship.

[00:06:06] Speaker 04:
Well, what it would do if that was a proprietary... I think we all agree that unique identifier used in Stefic is not the content-based identifier that you claim, but maybe the larger point is Stefic does use a unique identifier and

[00:06:23] Speaker 04:
it'd be obvious to use any unique identifier.

[00:06:26] Speaker 04:
Oh, look, in the prior art, it was known to have a content-based identifier based on a hash function.

[00:06:31] Speaker 04:
So we could use that version of a unique identifier in something like Stefic.

[00:06:38] Speaker 05:
Your honor, even if you took the Woodhill content-based identifier and substituted it for the assigned identifier in Stefic, you still don't have

[00:06:52] Speaker 05:
the claims of the 310 patent because there is nothing in Stefic that describes taking that assigned identifier and comparing it against a plurality of values.

[00:07:07] Speaker 01:
That's not how Stefic does its determination of rights of whether the user can see that file or not.

[00:07:14] Speaker 01:
That's what you're saying?

[00:07:15] Speaker 05:
That's absolutely correct.

[00:07:16] Speaker 01:
What do we do about the fact that although not cited by the PTAB, Woodhill does talk about

[00:07:22] Speaker 01:
doing some sort of comparison.

[00:07:24] Speaker 01:
It says, for example, in the abstract, it says something about the binary object identifier associated with a particular binary object.

[00:07:32] Speaker 01:
There's some sort of comparing the current value of the binary object identifier to one or more previous values of the binary object identifier.

[00:07:42] Speaker 05:
That's correct, Your Honor.

[00:07:43] Speaker 05:
That's Apple's argument.

[00:07:44] Speaker 05:
In fact, Apple and the director both agree that it's not in Stefic.

[00:07:48] Speaker 05:
They don't make any argument in their brief

[00:07:51] Speaker 05:
any identifier, whether it's a sign or a device.

[00:07:53] Speaker 04:
Following up on Judge Stoll's point, this particular piece of the abstract from Woodhill, not only was it not cited by the board, it wasn't cited by Apple, including the appeal briefs.

[00:08:05] Speaker 04:
Now, it does cite column 17 among a couple other passages, but I guess to just follow up on Judge Stoll's point, these sentences at the very end of the abstract on the front page of the Woodhill patent

[00:08:20] Speaker 04:
seem to pretty clearly say that you use the binary object identifier and compare that to one or more previous values of that binary object identifier, i.e.

[00:08:35] Speaker 04:
you are using that content-based identifier and to compare it against the plurality of values.

[00:08:44] Speaker 04:
What is incorrect about my

[00:08:47] Speaker 04:
reading, seemingly plain reading of that sentence in the abstract.

[00:08:51] Speaker 05:
Because you never compare the binary object identifier against a plurality in looking to take some action like accessing or authorization.

[00:09:06] Speaker 05:
In fact, the reason why this language, and it's in an abstract, so it's written at a very high level.

[00:09:11] Speaker 05:
But if you go into the specification and explains what that means is that in the backup server,

[00:09:17] Speaker 05:
you can have not only the previous version of the file, but you can have other versions of the file.

[00:09:24] Speaker 05:
So say two versions ago, three versions ago, four versions ago.

[00:09:28] Speaker 05:
And if you want to either back up now the current version that you have on your computer, or you want to do something else with a particular binary object that's on your computer, the first thing you have to do is say, okay, what version am I dealing with on the backup computer?

[00:09:48] Speaker 05:
And so really, when you go into the specification and read how this works, there is only a one-to-one comparison.

[00:09:55] Speaker 05:
So in other words, you pick the version and then you say, okay, does the binary object on my computer match what is in that version on the back of the computer?

[00:10:06] Speaker 05:
If it matches, you don't have to do anything because it's the same.

[00:10:10] Speaker 05:
If it doesn't match, then you take what's on your computer for that binary object and you put it into that particular version

[00:10:17] Speaker 05:
of what is in the backup computer.

[00:10:20] Speaker 05:
And the reason why this language talks about one or more previous values, what it really means is one or more previous versions.

[00:10:31] Speaker 05:
But you are never taking the binary object identifier for a piece of data that's on your computer and comparing it against multiple values as part of the same transaction.

[00:10:45] Speaker 05:
You never say,

[00:10:48] Speaker 05:
OK, let me see if this piece of data is in the backup server someplace, which is really what the true names invention is.

[00:10:56] Speaker 05:
Instead, you know exactly where that binary object is in the backup server.

[00:11:01] Speaker 05:
You know exactly what file it is in.

[00:11:04] Speaker 05:
And you can say, OK, is it in file 5 300 bits from the beginning and going from 300 to 400 bits?

[00:11:17] Speaker 05:
And you say, OK, it is not there.

[00:11:21] Speaker 05:
That is a one-to-one comparison.

[00:11:24] Speaker 05:
Now, later on, you might say, all right, well, it's not in the first backup version.

[00:11:28] Speaker 05:
Is it in the second backup version?

[00:11:30] Speaker 05:
And once again, you do a one-to-one comparison.

[00:11:34] Speaker 05:
But you never say for the same file, is it anywhere in here, by taking that value and comparing it against the plurality as part of the same transaction.

[00:11:44] Speaker 05:
That's why this language of the abstract is not entirely clear.

[00:11:47] Speaker 05:
But when you go to the specification, it makes it perfectly clear that the only time Woodhill ever makes a comparison, whether you're talking about binary objects or by granules, is one to one at any given time.

[00:12:01] Speaker 05:
In a different transaction, you may do the same thing.

[00:12:05] Speaker 05:
But there is never a time in Woodhill when you take a binary object and compare it

[00:12:11] Speaker 05:
against a plurality of values.

[00:12:14] Speaker 03:
To search for it in some database, which would seem almost inherently to require checking, is it this, is it this, is it this?

[00:12:22] Speaker 03:
And that's exactly the true names invention.

[00:12:24] Speaker 05:
Is that right?

[00:12:25] Speaker 05:
That's right.

[00:12:26] Speaker 05:
And that's the true names invention.

[00:12:28] Speaker 05:
Woodhill never does that.

[00:12:29] Speaker 05:
Woodhill never says, here's a database of values.

[00:12:32] Speaker 05:
Let me see if it's somewhere in this database by checking against the plurality.

[00:12:37] Speaker 03:
Before you sit down and reserve your

[00:12:39] Speaker 03:
your time.

[00:12:39] Speaker 03:
Can I ask you about the motivation to combine a piece of it in particular?

[00:12:45] Speaker 03:
Well, the board said a couple of things that probably were not actually the legally correct inquiry.

[00:12:51] Speaker 03:
I want you to focus for me for a minute on A17, where it says, again, talking about Woodhill at the bottom, given the local area network disclosed in Woodhill, we are persuaded

[00:13:06] Speaker 03:
that one of ordinary skill in the art would have addressed access to multiple files and not just multiple versions of a single file in considering the combination.

[00:13:19] Speaker 03:
Why is that not a sufficient explanation of here's a problem that somebody reading Woodhill would have understood to be a problem, namely several people might

[00:13:34] Speaker 03:
have access and therefore you might want to look for an additional tool to help control access and now you look and you find stuff.

[00:13:44] Speaker 05:
This was addressing PersonalWeb's argument as to why there was not a motivation to take Stefic's authorization and put it into Woodhill and what the Patent Office said is that

[00:13:58] Speaker 05:
Well, you might want to do it because multiple people can have access to the same file.

[00:14:02] Speaker 05:
First of all, that's wrong because Woodhill makes absolutely clear that the only person who can access a file from a backup computer is somebody who put it there in the first place.

[00:14:13] Speaker 05:
But even if you accepted the idea that, from a technical standpoint, that somehow somebody else might be able to get access to that same file,

[00:14:26] Speaker 05:
The board never goes on to say why you would use the Stefic solution for that.

[00:14:32] Speaker 05:
There are plenty of ways, login requirements, many, many ways of preventing somebody from obtaining unauthorized access.

[00:14:44] Speaker 05:
And so simply rejecting personal web's technical argument that Woodhill

[00:14:50] Speaker 05:
does only allows a user who put a file on a backup database to get it back, by rejecting that argument doesn't necessarily mean that there is a motivation to combine Stefic with Woodhill.

[00:15:04] Speaker 05:
And that's what was not explained by the board.

[00:15:09] Speaker 05:
Can I ask you another question?

[00:15:10] Speaker 04:
We'll probably have to give you back some time for your reply.

[00:15:14] Speaker 04:
My thought about Woodhill was that

[00:15:19] Speaker 04:
The system is automatically doing these backups on their own or doing these searches against backup files on its own.

[00:15:27] Speaker 04:
Is Woodhill also disclosing that the user can trigger the system to go find the backup file and then do a comparison of the different objects in the current file against the backup file?

[00:15:48] Speaker 05:
My reading of Woodhill is that it can work either way.

[00:15:50] Speaker 05:
You can either do backups at a set time frame or the user can initiate a backup.

[00:15:55] Speaker 05:
I think that when you want to restore, you have a crash on your computer and you want to restore from the backup server to your own server, to your own computer, that's something that the user initiates.

[00:16:07] Speaker 05:
And just to finish my answer to one final question, the reason why Woodhill can't serve as the comparison of an identifier to a plurality anyway

[00:16:18] Speaker 05:
is because that was not the basis upon which the board instituted.

[00:16:23] Speaker 05:
The board only relied on Stefic, and under the APA, personal-webs due process rights would be violated if the board had relied on Whitehill for this limitation.

[00:16:36] Speaker 03:
Q&A, we will restore your three minutes.

[00:16:48] Speaker 00:
Before I address the issue on which the PTO intervened in this case, I would like to speak to one housekeeping matter.

[00:16:58] Speaker 00:
The PTO filed his brief assuming this case would be about Claim 70 and attack on Claim 70, the claim that was used as representative and that the board construed.

[00:17:07] Speaker 00:
In its opening brief in this court, Personal Web does dispute that claim construction, but in its brief it never identifies what other claim it may be talking about.

[00:17:17] Speaker 01:
I think in the statement of issues they clearly identify which claims they intend to appeal.

[00:17:22] Speaker 01:
Claim 70 is not one of them.

[00:17:24] Speaker 01:
Didn't your brief, wasn't it filed after their opening brief was filed?

[00:17:28] Speaker 00:
It did, but the passage of the opening brief from Personal Web in this case that challenges the claim construction never identifies a particular different claim or even quotes particular different claim language.

[00:17:41] Speaker 00:
So to the extent that

[00:17:43] Speaker 00:
PersonalWeb wants to shift this appeal from what the board relied on as representative.

[00:17:47] Speaker 00:
We'd submit that argument as waived.

[00:17:49] Speaker 00:
In order to preserve an argument with respect to a different claim and the construction of a different claim, the opening brief would at least have to identify which other claim PersonalWeb seeks to assert.

[00:17:59] Speaker 01:
What about the fact that they say which claims are going to assert, which claims are at issue, right in their statement of the issues?

[00:18:06] Speaker 01:
And then they made a decision that they would let claim 70 go

[00:18:12] Speaker 01:
and they were going to assert other claims or go on appeal on other claims.

[00:18:17] Speaker 01:
It seems to me like that's an intelligent decision and one that we should respect because if people make decisions on what to limit the issues to and make those kind of judgments, I wouldn't want to discourage that.

[00:18:29] Speaker 01:
So why can't I look at the statement of issues and understand which claims they're relying on?

[00:18:33] Speaker 01:
I can also look at which claim they said was the claim that they were relying on in their statement of the facts where they identify what the claims are.

[00:18:41] Speaker 01:
Why can't I rely on that?

[00:18:42] Speaker 01:
And why couldn't you rely on that?

[00:18:44] Speaker 00:
Because, Your Honor, there are several claims identified.

[00:18:46] Speaker 00:
And in order for the appellee, for example, to respond intelligently to a claim construction argument, we at least need to know which claim you're talking about in the specific claim language.

[00:18:56] Speaker 03:
This feels like maybe beating an almost dead horse.

[00:19:01] Speaker 03:
But I mean, on page two of their brief, they say, personal web does not appeal claim 70.

[00:19:07] Speaker 03:
It lists 24, 32, 81, and 86.

[00:19:09] Speaker 03:
And they sort of forgot about 82.

[00:19:13] Speaker 03:
And then the second question about BRI, they use, they quote, content-dependent name, content-based identifier, digital identifier.

[00:19:26] Speaker 03:
Don't those come from the claims that remain, not the one they expressly said aren't here?

[00:19:31] Speaker 00:
It is in some of the claims.

[00:19:33] Speaker 00:
A party seeking to respond to the appeal needs to at least be informed which claims you are talking about.

[00:19:38] Speaker 01:
What about this page 2 in the footnote that Judge Tronter referred to where it expressly says, this is a footnote that says, personal web does not appeal claim 70?

[00:19:51] Speaker 00:
They did make clear they were shifting from claim 70, but again, in the two pages of the brief, pages 51 and 52 of the opening brief, they never identify which other claim they are talking about.

[00:20:01] Speaker 00:
And further, the PTO would point out, even if we considered all of those claims collectively, the principal dispute with the board's claim construction was the importation of the terms, at least and to some extent.

[00:20:14] Speaker 00:
And those terms appear in claim 70.

[00:20:18] Speaker 00:
And I believe personal love at this point has conceded that the board's claim construction of claim 70 is proper, because it's OK to import terms into the construction that actually appear in the claim.

[00:20:29] Speaker 00:
With respect to other claims, and again, we're not sure which one they assert, where those two terms, at least and to some extent, don't appear, I'd refer the court to page 14 of the board's opinion, where the board construed the prior art.

[00:20:42] Speaker 00:
And it's clear the board understood the prior art is essentially relying on the exact same technology that the claim to invention relies on, which is cryptographic hash functions.

[00:20:53] Speaker 00:
The board made clear that it understood the prior art

[00:20:57] Speaker 00:
Um, as a, the Woodhill reference as creating and a digital identifier that changes.

[00:21:02] Speaker 03:
Can you step back and just, I, you said something that I guess I caught my ear.

[00:21:09] Speaker 03:
I had thought, tell me if, I think maybe you just said the opposite of this, but I had thought that all of the claims that are actually on appeal 2432, um, 81, 82 and 86 do have at least language that makes clear that

[00:21:25] Speaker 03:
in those claims, you don't have to use every bit of data in the file to create your identifier.

[00:21:34] Speaker 00:
At least, and counsel from Personal Hub can correct me if I'm wrong, but I believe some of the claims do not have the at least and some qualifier.

[00:21:42] Speaker 00:
So in that context, the board's construction of claim 70 wouldn't carry along.

[00:21:48] Speaker 00:
But even to the extent that that qualifier didn't exist,

[00:21:52] Speaker 00:
Again, the board made a clear finding, this is again at page 14 of the record, that the prior art is based on the same technology, this cryptographic hash function, which does depend on all of the data, where the digital identifier changes if there's any change in the data.

[00:22:06] Speaker 01:
Your brief that you filed, as I read it, I thought only related to the procedural question.

[00:22:14] Speaker 00:
Yes, Your Honor.

[00:22:16] Speaker 01:
At issue here.

[00:22:17] Speaker 01:
Why are you talking about the merits?

[00:22:18] Speaker 01:
Why are you talking about defending the board's claim construction when your brief didn't address it?

[00:22:22] Speaker 00:
Because I wanted to at least address this issue about which claim is properly before the court.

[00:22:28] Speaker 00:
And this issue, regardless of the issue on how the issue on which the PTO intervened is resolved, we do believe affirmance is required because under either claim construction standard, the result would have been the same.

[00:22:42] Speaker 00:
But I would also like to address the issue of the proper claim construction standard.

[00:22:46] Speaker 00:
Again, the reason for which we intervened in this appeal

[00:22:49] Speaker 03:
And you did do this in one minute, because that wasn't even a point argued before, so I'm not sure we should be talking about it.

[00:22:55] Speaker 03:
I don't want to extend the time.

[00:22:57] Speaker 04:
Well, how about if I just ask you a question about it, and then we can end it there.

[00:23:03] Speaker 04:
Is it your understanding that if, let's do a hypothetical, where in an IPR, someone files an emotion to amend,

[00:23:15] Speaker 04:
And in the final written decision, the motion to amend is granted and the amended claims are found patentable.

[00:23:24] Speaker 04:
But the board at the same time in the final written decision finds other claims to be unpatentable.

[00:23:31] Speaker 04:
And then the patent owner appeals that adverse decision on unpatentability for the other claims.

[00:23:37] Speaker 04:
But during the pendency of that appeal, the patent expires.

[00:23:43] Speaker 04:
What is the PTO's position as to the status of those approved amended claims?

[00:23:50] Speaker 04:
Isn't it the PTO's position that those amendments would have to be backed out and dissolve because now the patent has expired?

[00:24:00] Speaker 00:
That is what our regulations require and it's effectively compelled by the language of Section 318 as well.

[00:24:06] Speaker 00:
We'd submit though that the proper... So I guess under those circumstances the

[00:24:12] Speaker 04:
You know, the whole point of using BRI is having the ability to amend.

[00:24:16] Speaker 04:
And under those circumstances, the ability to amend will have been illusory because there was an attempt to do it, and then it was taken away.

[00:24:27] Speaker 00:
This court's review, though, on review of the board's decision is whether it was reasonable for the board to use BRI at the time.

[00:24:33] Speaker 00:
And to assess the reasonableness of that determination, this court should ask, what did the board know at the time?

[00:24:38] Speaker 00:
At the time, was there a reasonable opportunity to amend?

[00:24:41] Speaker 00:
Now, the typical case, most of our cases settle, or about half of them settle.

[00:24:46] Speaker 00:
Many aren't appealed.

[00:24:47] Speaker 00:
And of those that are appealed, overwhelmingly, they're resolved within a year.

[00:24:50] Speaker 00:
But there are the extraordinary cases that result in a remand or rehearing on bonk or Supreme Court review.

[00:24:56] Speaker 04:
So my last question to you is, is it the agency's view that the Federal Circuit, in my hypothetical, would also need to be using broadest reasonable interpretation of the claim at our level or

[00:25:09] Speaker 04:
Would we be using Phillips now that we're looking at an expired patent?

[00:25:14] Speaker 00:
This court's function is strictly an appellate function, so it should be reviewing the reasonableness of the board's interpretation under BRI if there was a reasonable opportunity to amend at the time that the board made its decision.

[00:25:25] Speaker 00:
But again, we'd urge the court to consider that the board, at the time that review is instituted, when it has to decide which claim construction standard to use, it doesn't know how long an appeal may extend.

[00:25:38] Speaker 00:
If this court adopts a review standard that creates an absolute right to use of the Phillips standard, if the appeal happens to extend beyond the expiration of the patent, first of all, that's something the board simply can't foresee.

[00:25:51] Speaker 00:
And second, we'd urge the court to consider the effect that may have on patentee behavior.

[00:25:55] Speaker 00:
Typically, an appeal is always wrapped up within a year, but there are a number of avenues that patentees can pursue in order to extend an appeal.

[00:26:03] Speaker 00:
Again, that doesn't matter if the claim construction standard isn't driven by the time for appeal,

[00:26:08] Speaker 00:
If this court adopts an absolute rule that you always use Phillips if the appeal extends, people can seek extensions, they can seek rehearing of the board decision, and right now the PTO doesn't lease those things, we would urge this court to instead adopt an approach.

[00:26:23] Speaker 00:
At the time the board made its decision to use BRI, was there a reasonable opportunity to amend?

[00:26:28] Speaker 00:
Is it likely that amendment could have been entered and adopted?

[00:26:31] Speaker 03:
And that assessment, in your view, takes account of

[00:26:35] Speaker 03:
any opportunities to request and to receive expedition?

[00:26:40] Speaker 00:
That's a factor this court should consider and perhaps a reasonable opportunity to appeal in a particular case.

[00:26:47] Speaker 00:
But again, if an approach is adopted that regardless of what could be reasonably expected for an appeal and reasonably expected to conclude the case and enter an amendment, if an absolute approach is adopted, again, a typical case is finished within a year.

[00:27:00] Speaker 00:
PTO is calculated internally that you can reasonably extend an appeal by about three years by pursuing every avenue and every extension.

[00:27:07] Speaker 00:
And we wouldn't want to see this court adopt a review approach that incentivizes that kind of behavior.

[00:27:13] Speaker 00:
Instead, we'd urge this court to look, at the time the board made its decision, was there a reasonable opportunity to get amendments and have them entered with a reasonable time for an appeal rather than this absolute approach, which may, again, encourage this kind of

[00:27:28] Speaker 00:
strategic behavior of extending these appeals.

[00:27:31] Speaker 00:
Again, I'm very aware that some of this court's recent decisions suggest such an approach that if the appeal in any way extends until the time the patent expires, then you shift to a Phillips claim construction.

[00:27:44] Speaker 00:
Again, if this court uses Phillips, the board really wants to use Phillips as well.

[00:27:48] Speaker 00:
We don't want

[00:27:49] Speaker 00:
our decisions reviewed under a different review standard.

[00:27:52] Speaker 00:
Rather than that, how long can you extend the appeal approach?

[00:27:54] Speaker 00:
We'd urge this court to look, was it reasonable at the time the board made that decision to use the BRI approach?

[00:28:08] Speaker 02:
Good morning, Your Honor.

[00:28:10] Speaker 02:
May it please the Court.

[00:28:11] Speaker 02:
The personal web mischaracterizes the board's findings with respect to the element of the claim or the limitation concerning the comparison of the content-dependent identifier to plurality of values.

[00:28:24] Speaker 02:
Contrary to what personal web has argued, the board's finding for this limitation is on the paragraph starting at the bottom of page 21 of the final written decision and continuing on to page 22.

[00:28:34] Speaker 02:
There, the board makes the finding that Woodhill discloses a determination that the content-based identifier

[00:28:42] Speaker 02:
for the particular data item corresponds to an entry in a database on the backup file server.

[00:28:48] Speaker 02:
Now, while the board does not use the word plurality, there's no magic to that word.

[00:28:53] Speaker 02:
What the board is talking about here is that Woodhill discloses that the local workstation sends a request to the backup file server with the binary object identifier.

[00:29:03] Speaker 02:
When the remote backup file server receives the request from the local computer, the backup server to provide access to the binary object

[00:29:11] Speaker 02:
that the local workstation is looking to restore must compare the binary object identifier that was part of the request to the file server's mapping of a plurality of binary object identifiers.

[00:29:24] Speaker 04:
Now, unless the backup file server is storing, I'm sorry, can you quote me something from column 17 that matches what you're saying?

[00:29:34] Speaker 04:
I understand you're zoning in on this term

[00:29:39] Speaker 04:
binary object identification record 58.

[00:29:42] Speaker 04:
First of all, I do think there's a bit of an issue with the premise of what you're saying, because the argument was whether Woodhills binary object identifiers are used to access binary objects.

[00:30:01] Speaker 04:
But it doesn't talk about comparing the binary object identifier to a plurality of values there.

[00:30:09] Speaker 04:
Sure.

[00:30:09] Speaker 04:
Well, Dr. Goldberg.

[00:30:11] Speaker 04:
I'm concerned that you're reading something into this section of the board's decision, which is simply responding to PersonalWeb's argument here, as opposed to its prima facie review at A1415, which seemed to really rely on Stefic.

[00:30:29] Speaker 02:
Well, the passage you're talking about at pages 14 and 15, that paragraph, the first two sentences are about Stefic, and it talks about what's in Stefic, and then it cites two

[00:30:38] Speaker 02:
portions of Stefik, and then it goes on to talk about sort of the last two aspects of the claims, one being the comparison to plurality of values, the second being selective access, and there it does not actually cite to Stefik, it cites to Apple's petition at page 42.

[00:30:54] Speaker 02:
Right, and page 42 of your petition was all about Stefik.

[00:30:59] Speaker 02:
It was actually about the combination of Woodhill and Stefik, and I believe that all the board was doing there was talking about the combination because the sentence

[00:31:07] Speaker 02:
that Mr. Hadley is referring to talks about both selective access and comparison.

[00:31:12] Speaker 02:
Here in paragraph on the bottom of page 21 and going on to page 22, they're really talking about this determination.

[00:31:20] Speaker 02:
They don't use the word comparison, but the determination is essentially the same thing.

[00:31:26] Speaker 02:
And they cite to, and we had cited to this in our petition and Dr. Goldberg's declaration, Woodhill column 17, line 40 to 46,

[00:31:37] Speaker 02:
Where is it?

[00:31:37] Speaker 01:
I'm sorry, did you say the board cited that on page 21 and 22?

[00:31:43] Speaker 02:
Correct, they cite on page 21.

[00:31:46] Speaker 01:
Is it, oh, I see at the bottom of page 21.

[00:31:48] Speaker 02:
Correct, yes.

[00:31:48] Speaker 01:
Okay.

[00:31:49] Speaker 02:
All right, thank you.

[00:31:52] Speaker 02:
They cite to, like I said, paragraph, or sorry, column 17, line 41 to 46.

[00:31:58] Speaker 02:
There we're talking about the local workstation sending the update request to the remote backup file server that includes the

[00:32:06] Speaker 02:
binary object identification record 58, which Dr. Goldberg had testified and which the board had found, contains the binary object identifier.

[00:32:15] Speaker 02:
Dr. Goldberg had testified that this passage in conjunction with Woodhill figure one, which is explained in column three, which shows the multiple local workstations back to the backup file server, would disclose to a person of ordinary skill in the art this determination step or sort of the comparison to a plurality of values

[00:32:37] Speaker 02:
that I was mentioning before.

[00:32:38] Speaker 02:
Unless the backup file server only has a single binary object, which doesn't make much sense, it would necessarily be the case that when the request comes to the backup file server, that in order to even locate the binary object that's at issue, that the backup file server would have to do the comparison

[00:32:59] Speaker 02:
of the binary object identifier that's part of the request to its own mapping of binary object identifiers.

[00:33:06] Speaker 01:
I have a question for you about your brief.

[00:33:08] Speaker 01:
I'm wondering why did you address Claim 70?

[00:33:10] Speaker 01:
A lot of your analysis and showing why it is that there's substantial evidence to support the board's decision is based on limitations in Claim 70, which is not even at issue on appeal.

[00:33:20] Speaker 01:
So why is your brief talking about that?

[00:33:22] Speaker 02:
It's simply a function of

[00:33:24] Speaker 02:
Two things, one that the board found that that was an illustrative claim.

[00:33:28] Speaker 02:
And while Mr. Hadley claims that that claim is substantially different from the other claims that are already shown on appeal.

[00:33:36] Speaker 01:
It has different limitations.

[00:33:38] Speaker 01:
It has slightly different.

[00:33:39] Speaker 01:
It's not on appeal.

[00:33:40] Speaker 01:
And I don't think that the PTAB said in any way that it was going to have those other claims that are on appeal rise or fall with claim 70.

[00:33:49] Speaker 01:
And so it's kind of hard on appeal.

[00:33:51] Speaker 01:
We're sitting here looking to see whether there's substantial evidence

[00:33:54] Speaker 01:
to support the board's decision on claims that are on appeal.

[00:33:57] Speaker 01:
And you're talking about claim 70.

[00:33:59] Speaker 02:
Well, I would submit that while claim 70, the language might be a little bit different.

[00:34:03] Speaker 02:
I think each of the independent claims that are appealed, the language is a little bit different.

[00:34:08] Speaker 02:
But I think conceptually, it's the same.

[00:34:10] Speaker 02:
Again, this determination of claim 70, while it doesn't use the word plurality, certainly there's not a significant difference between the way that claim 70 expresses this determination and the comparison

[00:34:22] Speaker 02:
to a plurality of values in the remaining claims.

[00:34:28] Speaker 02:
And certainly while one could perhaps argue that the path here was maybe less than perfectly clear, where we can discern the path that the board took, which I think we can from the final written decision, the decision should be affirmed.

[00:34:43] Speaker 02:
Can we go there?

[00:34:45] Speaker 04:
What is the ultimate combination?

[00:34:47] Speaker 04:
It's hard for me to see in the board's decision

[00:34:51] Speaker 04:
what it was envisioning.

[00:34:54] Speaker 04:
Is it envisioning Stefik, using Stefik, whatever insights from Stefik in the Woodhill regime, or is it using whatever insights from Woodhill into the Stefik regime?

[00:35:10] Speaker 04:
I think what the board is doing... All I got was seeing that a combination of the teachings from the two references would have

[00:35:20] Speaker 04:
taught all of the limitations in the board's view.

[00:35:22] Speaker 04:
And then it kind of ends right there and then says, we are persuaded that all the claims are obvious.

[00:35:27] Speaker 02:
I think we see on the final written decision on page 17 where it's talking about, it would have been obvious for one of ordinary skill in the art to have addressed whether each user or each local computer was authorized to access a particular binary object.

[00:35:45] Speaker 02:
I think we can see in that paragraph

[00:35:47] Speaker 02:
discussing motivation to buy and what the board is doing is taking Woodhill's backup restore system, which is the aspect of Woodhill that we had relied on in our petition and combining that and essentially adding an authorization layer from Stefic, adding an access piece from Stefic within the way.

[00:36:05] Speaker 01:
So Woodhill is the primary reference.

[00:36:07] Speaker 02:
Correct.

[00:36:08] Speaker 04:
So could you explain what precisely is being taken, borrowed from Stefic and then injected into the

[00:36:17] Speaker 02:
Woodhill's backup file system.

[00:36:19] Speaker 04:
So what's being taken from Stefik is the concept of selective access using... I know at the abstract level there's this notion of selective access in Stefik, but now specifically what is going to be changed to the Woodhill backup system that'll make the Woodhill backup system different from the way it already is.

[00:36:39] Speaker 02:
So what we could have is a system on Woodhill where you have this authorization layer so that

[00:36:46] Speaker 02:
A particular user who didn't have access to another user's backup files wouldn't have access to those files.

[00:36:53] Speaker 02:
You can envision an instance where... In what way?

[00:36:55] Speaker 01:
How does it operate specifically?

[00:36:57] Speaker 02:
So we could have an instance where different local workstations at one point had access to the same file that is backed up on the backup file server.

[00:37:08] Speaker 02:
But over time, permissions change.

[00:37:10] Speaker 02:
One local workstation could make a change to a particular

[00:37:14] Speaker 02:
file and suddenly the other local workstation no longer has access to that backup copy of that file or document.

[00:37:24] Speaker 02:
So you can add in a selective access piece in that manner.

[00:37:27] Speaker 04:
The selective access piece in Stefic, it seems to be digital work specific, right?

[00:37:36] Speaker 04:
And then you have to have some kind of digital ticket in order to access that work.

[00:37:43] Speaker 02:
There is certainly extensive discussion in Stefik of that, but I don't believe that that piece would be necessary to be imported into what we're talking about in Woodhill.

[00:37:53] Speaker 02:
All right.

[00:37:54] Speaker 04:
So I guess even with that combination, how do you then get to the claimed invention?

[00:38:04] Speaker 04:
I guess you have to rely on whatever Column 17 says in Woodhill.

[00:38:11] Speaker 04:
to be a comparison of a plurality of values.

[00:38:14] Speaker 04:
Correct.

[00:38:15] Speaker 04:
You need us to interpret page 22 of the board decision as the board making that finding.

[00:38:24] Speaker 02:
That's correct.

[00:38:25] Speaker 02:
And I think we can see that that's the finding rather than earlier on, page 15, as Mr. Hadley had explained.

[00:38:32] Speaker 02:
But that's correct.

[00:38:33] Speaker 02:
We have the content-based identifier from Woodhill.

[00:38:36] Speaker 02:
And we have sort of the second aspect of the claims, the comparison of the plurality of values.

[00:38:41] Speaker 02:
but from column 17, the restore procedure of Woodhill in conjunction with figure one of Woodhill.

[00:38:48] Speaker 02:
And then the last limitation about this selective access piece based on this comparison, we have the comparison from Woodhill in conjunction with the selective access aspect from Stefic.

[00:39:02] Speaker 01:
So you're just getting the idea of selective access from Stefic, but then you've got to figure out how that would work using the technology of

[00:39:10] Speaker 01:
the primary reference.

[00:39:13] Speaker 02:
That's correct.

[00:39:13] Speaker 02:
And I think we had argued that in our petition.

[00:39:16] Speaker 02:
Dr. Goldberg discussed it in his declaration.

[00:39:19] Speaker 02:
And the board does include language to that effect in the final written decision.

[00:39:24] Speaker 04:
Just to clarify, even though A15 appears to suggest the board is looking at Stefik for comparing something to a plurality of values, you're not relying on that.

[00:39:35] Speaker 04:
You're relying on the Woodhill column 17 for the notion of comparing

[00:39:41] Speaker 04:
and identify a droop plurality of values.

[00:39:43] Speaker 02:
That's correct.

[00:39:43] Speaker 02:
We think where the board wanted to rely on Stefik, it clearly cited Stefik in the two preceding sentences as it did elsewhere throughout the decision in the sentence that we're talking about on A-15, it does not.

[00:39:57] Speaker 02:
It actually talks about, it cites to Apple's petition.

[00:40:02] Speaker 02:
So it's not pointing to, not relying on Stefik.

[00:40:06] Speaker 03:
Can I ask you this one question that I think I asked Mr. Mittal about the

[00:40:11] Speaker 03:
claims actually at issue here, do all of them have or do some of them lack this language about at least some portion of the file?

[00:40:23] Speaker 02:
Each of the claims at issue here does include language at least some.

[00:40:29] Speaker 03:
The reason I ask, I hope this is obvious, the reason I ask is that

[00:40:33] Speaker 03:
with that language, it may well be that in this case, there isn't any difference between Phillips and BRI.

[00:40:39] Speaker 02:
There is absolutely no difference.

[00:40:41] Speaker 02:
I mean, one, one thing that I, um, maybe we'll just quickly point out is that, uh, personal web made it very clear to the board.

[00:40:49] Speaker 02:
They said it numerous times in their patent owner's response, uh, personal web, uh, for the first time it mentioned the Phillips standard, but then in that same, uh,

[00:40:59] Speaker 02:
same submission said that the Phillips standard makes no difference whatsoever to the constructions of any of the terms that the board has construed.

[00:41:09] Speaker 02:
And then at the oral hearing, personal webs council was specifically asked by the board about the Phillips standard.

[00:41:16] Speaker 02:
And Mr. Rowe at the time responded, well, yes, the Phillips standard should apply, but it makes no difference.

[00:41:22] Speaker 02:
The first time

[00:41:23] Speaker 02:
that we see any mention whatsoever that Phillips makes a difference was in the motion for rehearing.

[00:41:28] Speaker 02:
But even there, they argued that it made a difference with respect to one of the identifier terms and for a reason that they're not even arguing here.

[00:41:35] Speaker 02:
So we would submit that certainly they've waived any argument that they have that the Phillips standard makes a difference.

[00:41:41] Speaker 02:
I think we had, we briefed that, but even if some reason they didn't waive and you know, Phillips standard, you found the Phillips standard to apply, it would make absolutely no difference here.

[00:41:55] Speaker 03:
Thank you very much.

[00:41:56] Speaker 03:
Thank you very much.

[00:41:58] Speaker 03:
And to even things out, you get 10 minutes.

[00:42:02] Speaker 05:
Hopefully, I won't need all of that.

[00:42:05] Speaker 05:
So do we.

[00:42:05] Speaker 01:
Could you start maybe just by answering that same question?

[00:42:08] Speaker 01:
Do all the claims at issue have at least some language in it?

[00:42:12] Speaker 05:
Yes, they do.

[00:42:13] Speaker 05:
And I agree with counsel on that.

[00:42:15] Speaker 05:
But for Claim 32, right?

[00:42:16] Speaker 05:
Correct.

[00:42:17] Speaker 05:
Well, Claim 32 is a dependent claim, but yes, that's correct.

[00:42:20] Speaker 05:
And I believe it does make a difference if for no other reason that a district court

[00:42:24] Speaker 05:
construing that same language under the Phillips standard came up with a different construction than the patent office did under the BRI standard.

[00:42:31] Speaker 05:
So I believe that it does make a difference.

[00:42:33] Speaker 05:
And that regardless of whether it makes a difference or not is something that should be decided by the board in the first instance, because this court has made absolutely clear in the in-ray CSB systems case that... This report didn't wrestle with at least some

[00:42:54] Speaker 04:
language in the claims, right?

[00:42:56] Speaker 05:
It did not wrestle with that, correct.

[00:42:58] Speaker 05:
It simply took the claim language on its face and said, what is the construction, and did not include the at least some language.

[00:43:05] Speaker 01:
And the CSB case, I think, was different in that that patent had expired at the time that it was before the board.

[00:43:12] Speaker 01:
Is that right?

[00:43:13] Speaker 05:
That's right.

[00:43:14] Speaker 05:
Although this patent did expire while the board still had jurisdiction.

[00:43:18] Speaker 01:
It was after the first decision, but before the decision on rehearing.

[00:43:22] Speaker 05:
Correct.

[00:43:25] Speaker 05:
If there are no other questions on that, let me jump back to this issue about the plurality of values comparison.

[00:43:31] Speaker 05:
And if we start with, again, at the abstract, it's clear that what the abstract is talking about is the initial backup.

[00:43:38] Speaker 05:
And the substantive description of that is found in Columns 8 and Column 9 of the Woodhill patent.

[00:43:44] Speaker 05:
And what that says is that the first thing that you do if there's a user-initiated backup is you determine which version do you want to use on the backup server to back your local computer up to.

[00:43:56] Speaker 05:
Because there may be multiple versions.

[00:43:58] Speaker 05:
And then it says you make a one-to-one comparison of the binary object on your computer with the binary object.

[00:44:04] Speaker 04:
Can you go to column 17?

[00:44:05] Speaker 04:
Because it's really the restore an old backup embodiment that Apple's really focusing in on, as well as

[00:44:14] Speaker 04:
pointing to the board's decision at page 22, which also cited to column 17.

[00:44:20] Speaker 04:
And Apple is arguing that the board was also relying on column 17 for the notion that in the restore embodiment, it's comparing that binary object identifier to a series of binary object identifiers in order to call up the backup file.

[00:44:37] Speaker 05:
That's correct.

[00:44:38] Speaker 05:
Apple does not contend that the initial backup satisfies the language.

[00:44:42] Speaker 05:
Instead, they point to this granularization process and the restore procedure for database files.

[00:44:48] Speaker 04:
Why is what they're arguing wrong about the substance of column 17?

[00:44:53] Speaker 04:
What's going on there?

[00:44:54] Speaker 05:
Two reasons.

[00:44:55] Speaker 05:
First, Apple admits that the board did not rely, in fact, quote, the board, however, did not rely on these granular identifiers for the disclosure of this limitation.

[00:45:05] Speaker 05:
the comparison against the plurality of the challenge claims of the 310 patent.

[00:45:11] Speaker 05:
Apple admits that the board did not rely on it.

[00:45:14] Speaker 05:
There's a reference in rejecting a personal web argument in the board's decision, but the board never ties that back to the comparison against a plurality language.

[00:45:24] Speaker 05:
The second reason is because column 17 expressly says

[00:45:29] Speaker 05:
quote, where the distributed storage manager program 24 for each... What lines are you reading?

[00:45:35] Speaker 05:
I'm sorry, column 17 beginning at line 51.

[00:45:38] Speaker 05:
Thank you.

[00:45:40] Speaker 05:
In fact, line 50, it says program control then continues with step 450, where the distributed storage manager program 24 for each binary object compares the contents identifier, this is a

[00:45:55] Speaker 05:
special identifier that is determined for the granules as opposed to the binary object identifier which the board discusses.

[00:46:04] Speaker 05:
So it compares the contents identifier of the next granule in the work area of the remote backup server 12 against the corresponding contents identifier calculated in step 444.

[00:46:16] Speaker 05:
So again, even with this granule procedure, there is only ever a one-to-one comparison

[00:46:21] Speaker 05:
between identifiers.

[00:46:23] Speaker 04:
I agree with you that once you have the backup file and then you have all the little granules and the corresponding contents identifiers, that's a one-to-one comparison.

[00:46:34] Speaker 04:
But again, what Apple and the board are focusing on are at lines 40 to 46, the binary object identification record 58.

[00:46:49] Speaker 04:
They need to do some interpretation, but they're saying by using that, which has the identifier inside of it, you are getting access to the backup file you want to do the granular comparison to.

[00:47:03] Speaker 04:
And when you get that backup file, you have to compare the identifier in the record to a host of identifiers in order to find the backup file you want.

[00:47:14] Speaker 04:
So what's wrong with that?

[00:47:16] Speaker 05:
What is wrong with that is that when you backup

[00:47:19] Speaker 05:
using, say, a database, using the granular process, and you have a whole bunch of binary objects, the system keeps track of what binary object has changed by setting a bit and creating what's called a bitmap with either a one or a zero.

[00:47:32] Speaker 05:
That's the procedure described in 5-H.

[00:47:34] Speaker 05:
And so when the binary, I'm sorry, when the binary object identification record gets sent, if you continue down this paragraph beginning at

[00:47:47] Speaker 05:
about line 47, it talks about the distributed storage manager program reconstituting each previous version of the binary objects according to the techniques illustrated in the flow chart depicted in figure 5-8.

[00:48:03] Speaker 05:
So the binary object identification record is needed to reconstitute the binary objects using the procedure in 5-H.

[00:48:10] Speaker 05:
If you look at the procedure in 5-H, what it talks about is checking

[00:48:15] Speaker 05:
the binary objects for that bit set of a 1 to 0 to see if it's changed.

[00:48:21] Speaker 05:
Because if the binary object, which is about 1 megabyte as opposed to the granules, which are 1 kilobyte, if an entire binary object is not changed because the bit is set to 0 as opposed to a 1, and there's 100 binary objects, you know you don't have to do anything with those binary objects.

[00:48:37] Speaker 05:
You only have to focus on the few binary objects where something has changed.

[00:48:42] Speaker 05:
So sending the binary object identification record it's playing from this language allows the system to simply make a determination of which binary object themselves you have to deal with and which ones you don't have to deal with.

[00:48:59] Speaker 05:
There is never a comparison of binary objects made

[00:49:04] Speaker 05:
and certainly no binary object against the plurality of value.

[00:49:08] Speaker 05:
The procedure in 5H, which is the procedure that uses... Which we don't actually have that piece of... I realize that that was left out of the... the figure itself was left out of the appendix

[00:49:21] Speaker 05:
But this is described in detail step by step in column 16, which is part of the appendix.

[00:49:27] Speaker 01:
Why wasn't the entire patent included in the appendix?

[00:49:30] Speaker 01:
These are the two prior references that were relied on by the board.

[00:49:34] Speaker 01:
Why aren't they in the appendix?

[00:49:35] Speaker 05:
That's my fault, Your Honor.

[00:49:36] Speaker 05:
I should have double-checked to make sure that they were included in total.

[00:49:41] Speaker 05:
And my paralegal followed the normal procedure at my direction of just including the pages that were cited

[00:49:50] Speaker 05:
in either party's brief or in the brief of the Patent Office.

[00:49:57] Speaker 05:
And unfortunately, that particular figure wasn't cited.

[00:50:01] Speaker 05:
But the description of what's done in column 16 was cited, and that was included.

[00:50:06] Speaker 05:
But you're right, and we'll make sure that happens in future appeals.

[00:50:12] Speaker 03:
So if there are no other questions.

[00:50:15] Speaker 03:
Can I just ask, did you make a separate argument about claim 32 from the argument

[00:50:20] Speaker 03:
you've made about the other claims?

[00:50:22] Speaker 05:
No.

[00:50:23] Speaker 05:
Claim 32, our whole argument focuses on the language of comparing a content-based name against the plurality of identifiers.

[00:50:32] Speaker 05:
Claim 32 does not deal with that.

[00:50:37] Speaker 03:
As to this claim construction dispute, in particular, whether we actually do have to decide Phillips versus BRI because Claim 32 for all the world looks like the

[00:50:50] Speaker 03:
the loan exception to what is otherwise present in all of the other claims language that makes it absolutely clear you don't need to use all of the data.

[00:51:02] Speaker 05:
That's correct.

[00:51:02] Speaker 05:
And that is one of the reasons why we think that this case, at the very least, should go back to the board to determine what the proper claim construction is under Phillips with respect to at least claim 32.

[00:51:18] Speaker 05:
But our argument on claim construction really just boils down to the fact that we think this court should hold that the patent office, just like this court does, should apply Phillips once the patent is expired.

[00:51:32] Speaker 05:
And if that requires another round of briefing, so be it.

[00:51:34] Speaker 05:
It's an unusual circumstance.

[00:51:37] Speaker 05:
When a patent is going to expire, while the board has jurisdiction, it's even more unusual where it will happen.

[00:51:44] Speaker 05:
where a patent will expire after a final written decision, but during a motion for reconsideration.

[00:51:51] Speaker 05:
But if it happens, we think that the law is black letter.

[00:51:57] Speaker 05:
Phillips should apply from that point forward, and the patent office can't.

[00:52:01] Speaker 04:
If we were to conclude here that it doesn't make a difference, then it would be moot to do that, right?

[00:52:07] Speaker 05:
That's correct.

[00:52:08] Speaker 05:
We think it does make a difference because of what the district court did in another case.

[00:52:13] Speaker 05:
We also think, though, that

[00:52:14] Speaker 05:
This court doesn't have to get to that issue because we don't think that the combination of Woodhill and Stefik teach the key limitation of the patent comparing a content-based identifier against the plurality of values, either in the initial backup in Woodhill or in the granularization part of Woodhill.

[00:52:35] Speaker 05:
But we don't even have to get to Woodhill because the board expressly relied solely on Stefik

[00:52:40] Speaker 05:
And the board could not have relied on Woodhill after pointing to Stefik in its initiation decision.

[00:52:49] Speaker 05:
And just to answer another question that your honors had, the way I read the decision, and I think it's perfectly clear, is that what the board did was say, you can take Stefik in the authorization procedure and, as Judge Chin suggested, swap out the assigned identifier for the Woodhill identifier.

[00:53:09] Speaker 05:
That's at page 15 of the decision.

[00:53:11] Speaker 05:
And the rest of the decision was simply going through personal webs, nine arguments, some of which related to adding Stefik to Woodhill and, for some reason, just addressing all of those arguments.

[00:53:25] Speaker 03:
Thank you very much.

[00:53:26] Speaker 03:
The case is submitted.