[00:00:00] Speaker 00:
You want five minutes for rebuttal, right?

[00:00:03] Speaker 00:
Yes, ma'am.

[00:00:05] Speaker 00:
Yes, ma'am.

[00:00:05] Speaker 00:
OK, you may proceed.

[00:00:08] Speaker 04:
To please the court, I would like to present three main issues in this appeal.

[00:00:14] Speaker 04:
The first issue relates to legal error by the PTAB for finding that the combination of Nathan 255 and Nathan 259 disclosed all of the limitations in the challenged claims.

[00:00:29] Speaker 04:
Second issue is that PTAB erred in finding Sound Blaster to require art.

[00:00:38] Speaker 04:
The third issue I would like to discuss is that the PTAB didn't show or didn't base its opinion on the fact that the Sound Blaster, excuse me, on the fact that a person of ordinary skill in the art had the

[00:00:57] Speaker 04:
necessary skill to make the combination of the functionality of Sound Blaster with Lucente and Ozelle references.

[00:01:08] Speaker 00:
So on that last point, are you saying that there was no evidence of a motivation to combine or are you saying that it wouldn't even be functional or that they wouldn't have been capable of combining?

[00:01:22] Speaker 04:
I'm saying that they wouldn't be capable.

[00:01:27] Speaker 00:
In the Nathan references, do you agree that the queue is a list of titles and song-related information?

[00:01:35] Speaker 04:
No, we don't.

[00:01:36] Speaker 04:
The teachings in Nathan, which I can point out, basically say that the queue is a place in memory where the songs themselves are stored.

[00:01:47] Speaker 04:
That's actually disclosed in paragraph 58 and 60 in Nathan 259, which is on

[00:01:55] Speaker 04:
Page APPX 496.

[00:02:04] Speaker 00:
And so you believe that the board's conclusion to the contrary was wrong?

[00:02:09] Speaker 04:
Yes, Your Honor.

[00:02:12] Speaker 00:
There are a lot of things here that you believe the board got wrong.

[00:02:16] Speaker 00:
Yes.

[00:02:17] Speaker 00:
Do we have to conclude that you are correct on every single one of those for you to prevail?

[00:02:22] Speaker 04:
No, Your Honor.

[00:02:24] Speaker 04:
The court only has to conclude on two out of three items.

[00:02:28] Speaker 04:
And the first item has to do with the combination of Nathan 255 and 259.

[00:02:35] Speaker 04:
The second issues both deal with the combination of Lucente, Ozawa, and Sound Blaster.

[00:02:40] Speaker 04:
So if the court ruled in our favor on one of the two of Sound Blaster or the combination, we can prevail.

[00:02:47] Speaker 00:
All right.

[00:02:54] Speaker 00:
Is it, with respect to Sound Blaster, is it critical that we find Sound Blaster was not prior art?

[00:03:02] Speaker 04:
Yes, Your Honor.

[00:03:03] Speaker 00:
OK, so we would have to conclude that HTC's declarant's testimony was insufficient for purposes of saying that the Sound Blaster manual was prior art.

[00:03:14] Speaker 04:
Or alternatively, that a person of ordinary skill in the art of posita didn't have the necessary skill.

[00:03:23] Speaker 04:
So one of the rulings in our favor on one of those two issues would prevail on the second ground of invalidity, which is based on Sound Blaster, Lucente, and Ozawa.

[00:03:36] Speaker 04:
OK.

[00:03:37] Speaker 02:
Doesn't the Sound Blaster document corroborate itself in the sense that, A, it doesn't say draft, and it does have a copyright notice?

[00:03:48] Speaker 04:
Yes, Your Honor, but we're not contesting the content.

[00:03:51] Speaker 04:
of the Sound Blaster manual.

[00:03:52] Speaker 04:
What we're content is the actual whether the Sound Blaster document was publicly accessible prior to the effective filing date of the AAD's patent claims.

[00:04:08] Speaker 02:
So you're not challenging the date?

[00:04:11] Speaker 04:
We're not challenging the date, the copyright date.

[00:04:15] Speaker 04:
We're just challenging that there's no corroborative evidence that

[00:04:21] Speaker 04:
the manual was publicly accessible prior to the effective filing date of AAD's patents.

[00:04:30] Speaker 02:
Well, isn't that what the witness testified to?

[00:04:34] Speaker 04:
The witness, the declaration of the witness was not probative of the public accessibility.

[00:04:42] Speaker 04:
The witness indicated in his declaration that up until 1990... Wasn't he a member of the public?

[00:04:51] Speaker 04:
He was an employee at the time he received the Sound Blaster manual.

[00:04:57] Speaker 04:
And that's in his declaration.

[00:04:59] Speaker 04:
Our contention is that he just received an internal document for review.

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

[00:05:07] Speaker 03:
But that's not what he said.

[00:05:09] Speaker 03:
He said he received it in an off-the-shelf package that would have been typical for a customer to get.

[00:05:15] Speaker 03:
So he's not saying he got it as a,

[00:05:19] Speaker 03:
employee, he says, this is what the customers would have gotten.

[00:05:22] Speaker 04:
But there's no corroboration of his statement.

[00:05:26] Speaker 03:
What corroboration do we need?

[00:05:27] Speaker 00:
He testified under oath that what he received is exactly the same thing that would have been commercially sold at the same time.

[00:05:38] Speaker 04:
But he had no basis for making that statement because, number one, he was not involved in the commercial and in packaging these sound cards with manuals.

[00:05:49] Speaker 04:
He started off, he worked in a call center.

[00:05:51] Speaker 03:
Well, did you challenge the admissibility of that declaration?

[00:05:55] Speaker 03:
Oh, we did.

[00:05:56] Speaker 03:
And you lost on that, right?

[00:05:58] Speaker 03:
Pardon me?

[00:05:58] Speaker 03:
You lost on that.

[00:05:59] Speaker 03:
So it's in the record.

[00:06:00] Speaker 04:
We did.

[00:06:02] Speaker 03:
Are you asking us to review that evidentiary issue?

[00:06:05] Speaker 04:
No.

[00:06:06] Speaker 03:
So we have this statement in the record that supports the board's decision.

[00:06:11] Speaker 03:
I mean, I don't understand how this is an issue.

[00:06:14] Speaker 03:
It's substantial evidence.

[00:06:15] Speaker 03:
What we're challenging- You don't like the statement.

[00:06:17] Speaker 03:
You think there should be more, but I mean, is there a legal requirement for stuff like this to be corroborated?

[00:06:24] Speaker 04:
Yes, there is, Your Honor.

[00:06:26] Speaker 03:
Where does that come from?

[00:06:27] Speaker 03:
Where does that come from?

[00:06:28] Speaker 04:
There's actually two cases.

[00:06:32] Speaker 04:
One is Finnegan, and the other one is Union Carbright.

[00:06:38] Speaker 04:
It requires that activities associated with documents must be corroborated by more than a single reference.

[00:06:48] Speaker 02:
No, but Finnegan is a different case.

[00:06:50] Speaker 02:
The witness was testifying about whether something was missing.

[00:06:55] Speaker 04:
It's a different case, but Finnegan related to whether something was in the public.

[00:07:00] Speaker 04:
And his testimony wasn't corroborated.

[00:07:02] Speaker 04:
And that's basically right on point here.

[00:07:07] Speaker 00:
Can we go back to Nathan?

[00:07:09] Speaker 00:
Yes.

[00:07:09] Speaker 00:
You said to me that the cue is the songs, not the titles, not the list.

[00:07:17] Speaker 00:
You said it was in paragraph 58 and 60, I think you said.

[00:07:21] Speaker 00:
Where does it say that?

[00:07:23] Speaker 00:
Where does it make it clear that it's the songs themselves?

[00:07:26] Speaker 04:
Should I read it to you?

[00:07:28] Speaker 00:
Point to me the portions of those paragraphs.

[00:07:32] Speaker 04:
What page are we on?

[00:07:34] Speaker 04:
496.

[00:07:35] Speaker 02:
OK.

[00:07:36] Speaker 04:
OK.

[00:07:37] Speaker 04:
Halfway down, or actually a third of the way down, paragraph 58.

[00:07:43] Speaker 04:
A second smaller window, 92, included in the first window, 90, allows graphics displays of the disc jacket during performance.

[00:07:55] Speaker 04:
And the next sentence is the key one.

[00:07:57] Speaker 04:
In numeric display 93, the total time corresponding to the pieces to be played which are stored in the queue is indicated.

[00:08:08] Speaker 04:
And the next sentence, the number of songs in the queue

[00:08:12] Speaker 04:
OK, paragraph 60, if you'd like me to read that.

[00:08:17] Speaker 04:
In the case in which the jukebox is not playing a song when the songs are in the queue.

[00:08:25] Speaker 00:
Well, it says when the songs of the queue have been exhausted.

[00:08:29] Speaker 02:
Yeah, but does that necessarily exclude a separate storage for songs?

[00:08:37] Speaker 02:
I don't know if I understand your question, Your Honor.

[00:08:41] Speaker 02:
You're saying that songs are stored in a queue, but that doesn't necessarily mean that songs can only be stored in a queue.

[00:08:49] Speaker 02:
They could be stored somewhere else.

[00:08:53] Speaker 02:
And brought into the queue when they're ready to be played.

[00:08:58] Speaker 04:
The only disclosure in Nathan 259 is that they're only stored in the queue.

[00:09:03] Speaker 04:
There's no other disclosure in this document that says they're distorted.

[00:09:07] Speaker 00:
What about the fact that there was actually expert testimony that said that one of Skill in the Art would have understood this to be referring to the songs that correspond to the list in the queue?

[00:09:20] Speaker 04:
If I understand your question, you're saying not the songs are stored, but basically a list of the songs.

[00:09:25] Speaker 04:
There was also expert testimony to the contrary

[00:09:28] Speaker 04:
And the document is contrary and basically states the songs are stored.

[00:09:35] Speaker 04:
There are other sections of Nathan 259.

[00:09:39] Speaker 04:
For example, paragraph 9, excuse me, promiscuated.

[00:09:59] Speaker 04:
Paragraph 9, and that's on APPX 489.

[00:10:07] Speaker 04:
Another object is to devise an apparatus.

[00:10:09] Speaker 04:
Wait, 489?

[00:10:10] Speaker 04:
Yes, ma'am.

[00:10:11] Speaker 04:
Oh, OK.

[00:10:11] Speaker 04:
Yes, your honor.

[00:10:13] Speaker 04:
OK, got it.

[00:10:14] Speaker 04:
Paragraph 9.

[00:10:16] Speaker 04:
Another object is to devise an apparatus which allows selection of audio or video or audiovisual data to be downloaded to enable this information to be

[00:10:29] Speaker 04:
reproduce on the audio and video systems.

[00:10:33] Speaker 04:
So basically what that paragraph is saying is you're downloading songs from a remote server, and they're able to be played while they're being downloaded.

[00:10:42] Speaker 04:
And that very clearly shows that the songs are stored in the queue.

[00:10:52] Speaker 04:
Another paragraph, 103.

[00:11:08] Speaker 04:
At the bottom of paragraph 103 on page 506, it states, it can even play the audiovisual pieces during transfer.

[00:11:21] Speaker 04:
So what that tells you is they're not stored somewhere else before being played.

[00:11:27] Speaker 04:
They're directed right into the cue and played.

[00:11:31] Speaker 04:
That's the evidence.

[00:11:33] Speaker 02:
What about paragraph 8?

[00:11:37] Speaker 02:
On page appendix 489, paragraph 8, it says the object, this object, that's referring to paragraph 7, which says an object to device a device which allows the user to develop a design allowing storage of plurality of audio or video information.

[00:11:58] Speaker 02:
And then 8 says this object is achieved by a second mass storage module 108.

[00:12:06] Speaker 02:
allowing the recording of digitized audiovisual data.

[00:12:10] Speaker 02:
Doesn't that suggest that songs are also stored in that mass storage module?

[00:12:17] Speaker 04:
I'm glad you asked that question, Your Honor.

[00:12:20] Speaker 04:
The storage module 108 is external to the device.

[00:12:24] Speaker 04:
The claims do not read on devices that are external to the local audiovisual device.

[00:12:31] Speaker 04:
And secondly,

[00:12:34] Speaker 02:
But isn't it a teaching, though?

[00:12:37] Speaker 04:
It's teaching.

[00:12:38] Speaker 04:
The PTAP didn't rely on this particular module in support of its finding.

[00:12:45] Speaker 00:
All right, you're into your rebuttal.

[00:12:47] Speaker 00:
You want to save it?

[00:12:48] Speaker 04:
Yes, Your Honor.

[00:12:49] Speaker 00:
OK.

[00:12:49] Speaker 00:
I know there's a lot of information.

[00:13:01] Speaker 00:
Let's start where he left off.

[00:13:03] Speaker 00:
Why is it that the PTAB could credit an expert who says that these paragraphs don't say what they appear to say on their face with respect to the storage of the songs?

[00:13:19] Speaker 01:
The paragraphs actually do state what HGC's expert Schmitt say.

[00:13:25] Speaker 01:
I apologize.

[00:13:26] Speaker 01:
Matthew Bernstein for HGC America.

[00:13:29] Speaker 00:
That's OK.

[00:13:29] Speaker 00:
I jumped right in.

[00:13:30] Speaker 01:
May it please the court.

[00:13:33] Speaker 01:
The basis of the board's decision that there was memory internal storage in the actual Nathan 259 reference was expert testimony from Mr. Schmitt

[00:13:49] Speaker 01:
and the board's giving credit to that expert testimony that there were two modes.

[00:13:54] Speaker 01:
This is the starting point of the, both in the decision, final written decision, and in the order denying requests for rehearing, that there's this NSAM mode, and then there's this separate browsing and selection mode, and how this works, and there's detailed, and this is in the final written decision, is that the music jukebox of the Nathan 259

[00:14:18] Speaker 01:
It goes onto a server.

[00:14:22] Speaker 01:
selections are made of some songs, and those songs are downloaded to the actual music jukebox.

[00:14:30] Speaker 01:
Stop.

[00:14:30] Speaker 01:
That has happened.

[00:14:31] Speaker 01:
That's one mode of operation.

[00:14:33] Speaker 01:
There's nothing in the queue.

[00:14:34] Speaker 01:
How do we know there's nothing in the queue at that time?

[00:14:37] Speaker 01:
Because the second mode, the selection mode, you have to hit a separate button, you have to look at a bunch of songs, and you have to actually select and push a button to put something actually into the queue.

[00:14:50] Speaker 01:
And the board looked at these two modes,

[00:14:52] Speaker 01:
and then looked at the disclosures in the 259, which actually do talk about whether it's RAM or mass storage, and based on that combination of evidence, found that there was substantial evidence.

[00:15:07] Speaker 01:
And what AAD is doing, what they did in the request for rehearing and what they're doing now, is they're just asking, re-arguing the facts, remaking factual arguments that they made, when there's substantial evidence,

[00:15:19] Speaker 01:
supporting the board's decision.

[00:15:23] Speaker 00:
Well, I guess my question is, I understand that the board points to the expert testimony.

[00:15:29] Speaker 00:
What I'm trying to figure out is what was the board looking at in Nathan itself to support the conclusion of two separate methodologies.

[00:15:38] Speaker 01:
So that's at appendix page 16.

[00:15:46] Speaker 01:
or page 16 of the board's final written decision.

[00:15:50] Speaker 01:
It talks about both modes.

[00:15:56] Speaker 00:
And then... But I guess what I'm trying to figure out is what language of Nathan it's relying on.

[00:16:04] Speaker 00:
It does say, I mean, at 18 it says, upon review of the disclosure of Nathan and the testimony of the party of experts, we find that AAD's interpretation of this reference is the correct one.

[00:16:16] Speaker 00:
I guess I'm looking for the first part.

[00:16:21] Speaker 00:
What in Nathan?

[00:16:22] Speaker 01:
So it's actually further down on page 16 of the appendix of the McConnell-Rickson decision.

[00:16:46] Speaker 01:
The paragraph that starts, we find that Nathan 259 discloses a jukebox that permits downloading of soundtracks via the NSAM.

[00:16:55] Speaker 01:
That's going to the server to download songs initially.

[00:16:59] Speaker 01:
And then it goes on a different selection graphics screen, shows the songs that have been downloaded, permits the user to sort the songs according to different criteria, and then gives the user the ability to add the song to the queue.

[00:17:12] Speaker 01:
That's the discussion of the

[00:17:14] Speaker 01:
of the two modes.

[00:17:15] Speaker 01:
In the reference, there are citations to paragraphs 64, 73, and 74, figure 9, and figure 10 of the Nathan reference.

[00:17:28] Speaker 01:
And then this factual disagreement that AAD had with what the appropriate reading of Nathan

[00:17:37] Speaker 01:
They sought requests for re-hearing on that.

[00:17:41] Speaker 01:
And again, at appendix page 209, the board was very clear that they were relying on the disclosure of Nathan 259 having both the NSAM mode as well as the selection mode, two separate modes.

[00:17:59] Speaker 01:
But the board also did independently point to memory actually being local storage being resident

[00:18:07] Speaker 01:
Nathan 259 reference.

[00:18:09] Speaker 01:
And let's not forget that the actual combination was the Nathan 259 and the Nathan 255.

[00:18:17] Speaker 01:
And we believe that the PTAP made independent factual findings that the 255 disclosed internal storage by means of 350 to 400 titles that could be stored in the reference.

[00:18:38] Speaker 01:
Your Honor, turning to Sound Blaster and whether or not this is prior art, just a couple points that I wanted to add.

[00:18:45] Speaker 01:
The first is Mr. Miller's declaration.

[00:18:51] Speaker 01:
He clearly said that he received the box of software, including the disk and the manual and the sound card, in the regular course of his business at Creative Labs.

[00:19:03] Speaker 01:
So this was something received in the ordinary course of business.

[00:19:06] Speaker 01:
He was never cross-examined.

[00:19:08] Speaker 01:
So this is the equivalent of Mr. Miller getting up at trial in front of judge and jury and saying, hey, here's the box of software.

[00:19:16] Speaker 01:
This is why it was publicly available.

[00:19:18] Speaker 01:
I received it in the regular course of business.

[00:19:21] Speaker 01:
That's my direct examination.

[00:19:23] Speaker 01:
I sit down and there's absolutely no cross-examination.

[00:19:26] Speaker 00:
Did he ever actually say that he was familiar with the commercial

[00:19:29] Speaker 00:
practices as it relates to this manual?

[00:19:32] Speaker 00:
I mean, he said I got this.

[00:19:34] Speaker 01:
No, he said more than he got it, Your Honor.

[00:19:39] Speaker 01:
He said that

[00:19:53] Speaker 01:
He said that he received it in the regular course of business.

[00:19:59] Speaker 01:
And more so than that, he said that the reason why he received the actual commercial publicly available version of this software is because he was working in technical support.

[00:20:10] Speaker 01:
And it was the company policy to send the commercial versions of the software to people like him.

[00:20:16] Speaker 01:
So when they talked on the phone to these customers, they were looking and working off of the same reference.

[00:20:24] Speaker 00:
Could he ever say that he ever did talk to any customer or anyone about this software?

[00:20:31] Speaker 01:
No, there's no testimony of that.

[00:20:34] Speaker 01:
What HTC did was, through this declaration and testimony, make an initial showing.

[00:20:39] Speaker 01:
And perhaps if AAD had cross-examined him and asked him that question, that would be something to consider.

[00:20:47] Speaker 01:
But the only evidence, the substantial evidence, is the testimony from Mr. Miller about

[00:20:53] Speaker 01:
him receiving the software in the regular course of business and it being exactly the same as what was available.

[00:20:59] Speaker 01:
What page of the appendix were you on?

[00:21:01] Speaker 01:
I'm sorry, your honor, 586 to 587, paragraphs 12 through 14.

[00:21:05] Speaker 00:
86, 87.

[00:21:25] Speaker 00:
The posita that you described and that the board described is a sound engineer, right?

[00:21:31] Speaker 01:
That would meet the requirements of a person with an ordinary skill in the art at the time of the invention.

[00:21:38] Speaker 00:
Okay, but it wouldn't, now we're getting to this argument that your friend on the other side made, that the sound engineer wouldn't have any idea how to do this because what you really need is a software engineer.

[00:21:50] Speaker 01:
Well, so the...

[00:21:54] Speaker 01:
A couple of points in response to that, Your Honor.

[00:22:02] Speaker 01:
First, the evidence presented to the board on motivation to combine, there was HTC's evidence through Mr. Schmantz and their argument positions that they took.

[00:22:17] Speaker 01:
that a person of ordinary skill in the art would have been motivated to combine the teachings.

[00:22:22] Speaker 00:
Right, but wouldn't have had any idea how to do that.

[00:22:25] Speaker 00:
So that's what my problem is.

[00:22:26] Speaker 00:
If you've got a posita who can't do it, who has to contract it out, or there has to be a separate posita, so how would that be that one of skill in the art would know this?

[00:22:38] Speaker 01:
So the only dispute as to whether a person of ordinary skill in the art at the time of the invention could have actually

[00:22:44] Speaker 01:
combined references related to the physical combinability of the references.

[00:22:50] Speaker 01:
That was AAD's argument that a person of ordinary skill in the art wouldn't have known to take the actual card from Sound Blaster and put it into Lucente, or a person of ordinary skill in the art wouldn't know how to take

[00:23:07] Speaker 01:
Windows, a version of Windows.

[00:23:09] Speaker 00:
Right, that's exactly my point, because a person of ordinary skill and the art, as you defined it, was a sound engineer.

[00:23:15] Speaker 00:
And what you're talking about is something that software engineers would have to do.

[00:23:19] Speaker 01:
But the physical combinability is not the test for motivation to combine.

[00:23:24] Speaker 00:
The test is combining the actual teachings of the... Right, but the test is, can this one of skill and the art, would this one of skill and the art have been motivated to do that?

[00:23:34] Speaker 00:
And if they had no ability to do that,

[00:23:36] Speaker 00:
and wouldn't even have any clue how to do that, where does the motivation to do it come from?

[00:23:41] Speaker 01:
Well, so for the actual combining of the functionality of Sound Blaster with Lucente, which was the actual combination that HTC set forth, the board actually did look to see whether there would have been a reasonable expectation of achieving what's claimed

[00:24:01] Speaker 01:
in the patent.

[00:24:02] Speaker 01:
The board talked about that in the final written decision at page 37, so page 37 of the appendix, and it relied on Mr. Schmand's testimony at paragraph 71 of his declaration, which is appendix 2416 through 2417, where Mr. Schmand did testify that it would have been straightforward for any sort of computer programmer, which does fall within the level of skill in the art,

[00:24:31] Speaker 01:
to write the software for this basic functionality, and that's all it is.

[00:24:36] Speaker 01:
We're talking about playing a song, we're talking about creating a playlist, that combining that basic functionality with a device such as Lucent that actually had... So you're saying that a sound engineer at the time would have the ability to do all of this software engineering?

[00:24:59] Speaker 01:
Yes.

[00:25:00] Speaker 01:
That's what Mr. Schmand testified to at the appendix 2416-2417 that was adopted by the court.

[00:25:07] Speaker 01:
And AAD never responded to that.

[00:25:10] Speaker 01:
AAD never said, never provided any opinion as to whether a portion of ordinary skill in the art could combine

[00:25:18] Speaker 01:
It would be successful in combining this basic functionality with the Lucente reference.

[00:25:24] Speaker 01:
They didn't respond to that.

[00:25:25] Speaker 01:
The only evidence before the PTAB was HTC's expert testimony.

[00:25:30] Speaker 01:
AAD instead just argued the physical combinability of the references.

[00:25:38] Speaker 01:
The board twice said,

[00:25:42] Speaker 01:
AAD, you provided this testimony.

[00:25:43] Speaker 01:
It's completely irrelevant because HTC's combination is the functionality, this basic functionality of Sound Blaster with the Lucente audio device.

[00:25:54] Speaker 00:
You don't say anything in your brief about what the need in the industry was that might have given rise to this incentive to combine Sound Blaster, Lucente, and Ozawa.

[00:26:10] Speaker 01:
The board actually addressed this, the problem facing a person of ordinary skill in the art at pages appendix four through five, where the board actually described the problem similar to what I've been saying, is that there was a need for the ability to store music on the recorder, customize the soundtracks, playlists, play audio,

[00:26:40] Speaker 01:
Again, that's pretty simple stuff.

[00:26:43] Speaker 01:
And when you're talking about the level of detail, how much information you need, when you're talking about simple technology like this, the personal web case says that you don't need a book or a long list of information.

[00:27:04] Speaker 01:
I think my time is up.

[00:27:06] Speaker 00:
Okay, anything else?

[00:27:09] Speaker 00:
Okay, thank you.

[00:27:18] Speaker 00:
You have a little over two minutes for a rebuttal.

[00:27:24] Speaker 04:
I would like to address a few points.

[00:27:30] Speaker 04:
First, AAD's expert did address this

[00:27:36] Speaker 04:
issue of whether a posita, as defined by the two experts, would have the necessary skill to combine the functionality of Sound Blaster with Lucente and Ozawa.

[00:27:53] Speaker 02:
Where would we find that?

[00:27:56] Speaker 04:
Page 8712 and 13.

[00:28:01] Speaker 04:
And just to save some time, if you start at the bottom,

[00:28:06] Speaker 04:
towards the bottom of 87-12.

[00:28:09] Speaker 04:
Thus, a person of ordinary skill in the art would not even consider such a modification or combination based on the fact that it was beyond their skill level.

[00:28:22] Speaker 04:
One of the points that was made was that AAD was suggesting physical combining.

[00:28:30] Speaker 04:
That's not the issue we're bringing up today.

[00:28:33] Speaker 04:
It's combining the functionality

[00:28:36] Speaker 04:
of Sound Blaster with Lucente and Ozawa.

[00:28:39] Speaker 04:
And our expert testified that it was beyond the skill of a posita as defined.

[00:28:46] Speaker 04:
PTAB ignored our expert's testimony and didn't rely on it, didn't respond to it.

[00:29:01] Speaker 04:
One point of clarity, I would like to state that for the issues that we didn't get to cover today and the rest of the issues in the case, we rely on our briefs.

[00:29:11] Speaker 04:
Thank you.