[00:00:02] Speaker 02: I wasted enough time, or I wouldn't have been here. [00:00:30] Speaker 03: In this particular case, the appellant withdrew his request to appear to argue, so we have only the appellee arguing before us. [00:00:41] Speaker 03: You have 15 minutes, Mr. Alamani. [00:00:43] Speaker 03: I don't think you've got to use it all, all the time, but we're glad to hear you. [00:00:52] Speaker 04: Thank you. [00:00:53] Speaker 04: May it please the court? [00:00:54] Speaker 04: Good morning. [00:00:55] Speaker 04: I'm John Alamani. [00:00:56] Speaker 04: I'm here on behalf of Google, the appellee in this case. [00:00:59] Speaker 04: It's a unique situation for me. [00:01:01] Speaker 04: I've never been here without the other side appearing. [00:01:04] Speaker 04: It's like one hand clapping, right? [00:01:07] Speaker 04: Yes. [00:01:07] Speaker 04: And I'm not precisely sure how you'd like me to proceed. [00:01:10] Speaker 04: I had planned to give perhaps a very short introduction, maybe a minute or less. [00:01:13] Speaker 04: Well, let's see if there's any questions first. [00:01:15] Speaker 01: I have a question on secondary consideration. [00:01:17] Speaker 01: So as I looked at the PTAP's decision on secondary considerations, I saw that there was an initial finding of no nexus based on [00:01:28] Speaker 01: Things like the fact that there were different versions of the rimfire software and that it wasn't clear which version was which or which one was being relied upon by the declarant in order to show a nexus. [00:01:44] Speaker 01: I noticed that in your brief you didn't really address that part of the PTAP's decision and you didn't defend the PTAP's secondary consideration determination based on that part of the decision. [00:01:55] Speaker 01: and rather you relied on other parts of the decision, for example, showing addressing individually industry praise or commercial success, which occurs later in the opinion. [00:02:07] Speaker 01: So I really just wanted to see if you were defending that part of the PTAB's decision or not. [00:02:12] Speaker 04: Yes, Your Honor. [00:02:13] Speaker 04: We are defending that part of the PTAB's decision. [00:02:16] Speaker 04: The PTAB relied on that portion of the decision. [00:02:18] Speaker 04: Well, back up the stuff. [00:02:22] Speaker 04: reviewing testimony regarding a document that Summit Six had produced, exhibit 2010. [00:02:27] Speaker 04: And Dr. Kaliski, who was the expert for Summit Six, had testified that that document illustrated each of the claim elements. [00:02:37] Speaker 04: He further testified that that document reflected a commercial embodiment of the Rimfire Summit Six product. [00:02:44] Speaker 04: The portion of his testimony that the [00:02:48] Speaker 04: PTAB that the board reviewed was the portion of this testimony regarding whether or not the document reflected a commercial embodiment of the invention. [00:02:56] Speaker 04: And the board found, based on the evidence that it reviewed, that it did not show a link. [00:03:01] Speaker 04: It listed a number of items that Dr. Kaliski failed to know. [00:03:05] Speaker 04: He didn't know which versions of the exhibits we're referring to. [00:03:07] Speaker 04: Of the three commercial embodiments that Summit 6 talked about, the real estate embodiment, the eBay embodiment, and the classifieds embodiment, [00:03:16] Speaker 04: He didn't know which of the embodiments might exist. [00:03:18] Speaker 01: How does that relate to Nexus? [00:03:19] Speaker 01: Can you just draw that, put that together for me? [00:03:21] Speaker 04: Because it's not clear from the briefs. [00:03:23] Speaker 04: Absolutely. [00:03:24] Speaker 04: But Summit Six had made the argument that the commercial embodiment of their product encompassed all of the claimed elements. [00:03:33] Speaker 04: And so Dr. Kaliski was the support that they utilized in order to prove that. [00:03:38] Speaker 04: And so his testimony was the basis that since each element was present in that document, then the commercial embodiment of room fire [00:03:45] Speaker 04: actually encompass all the claim dimension elements. [00:03:48] Speaker 04: However, he never tied that document exhibit 2010 to the commercial embodiment. [00:03:53] Speaker 04: And so there was no presumption of nexus. [00:03:56] Speaker 04: And then the board continued from there to look at the individual categories of secondary considerations that Summit 6 provided and looked at nexus for each of those individual categories separately. [00:04:05] Speaker 04: But they started the analysis by looking at whether or not there was a presumption of nexus based on a commercial embodiment encompassing all the claim limitations. [00:04:13] Speaker 00: Is that presumption applying to PTO? [00:04:15] Speaker 04: Does it apply to what I'm saying? [00:04:16] Speaker 00: Does it apply in the PTAB, that presumption? [00:04:19] Speaker 04: I think yes, it does apply to the PTAB. [00:04:23] Speaker 04: If the patent owner can show that the claim and invention is embodied in the commercial product and they're coming extensive, then yes, the presumption would apply in the PTAB. [00:04:35] Speaker 04: And so any secondary considerations, evidence that was directed towards that product would be subject to that presumption. [00:04:45] Speaker 02: Let me ask you this. [00:04:47] Speaker 02: This is one probably lawyer's dream about getting, but which ground of rejection is firmer, the combination of Kramer and Ahera or the combination of Mayo and Nyerian? [00:05:01] Speaker 04: I would say in this case, they're equally strong. [00:05:04] Speaker 04: The grounds come at the invention from two different perspectives, one from the camera, the client device perspective, the other one from a website. [00:05:12] Speaker 04: I think they're equally strong. [00:05:13] Speaker 04: They both show all the elements. [00:05:15] Speaker 04: The mail reference, which is the postcard reference, the Kramer reference, which is the digital camera reference, both have all the elements of the independent claims. [00:05:24] Speaker 04: We combine them together based on the very close similarity between the two sets of references, two pairs, and there were expressed disclosures in each of the references that the board found would motivate one of the skill and the error to combine them. [00:05:35] Speaker 04: So I think in this particular case, they're equally strong. [00:05:42] Speaker 03: Any other questions? [00:05:44] Speaker 04: I thank you for your time and consideration. [00:05:45] Speaker 04: Thank you. [00:05:45] Speaker 04: Thank you, sir.