[00:00:02] Speaker 04: Our next case is GoPro Incorporated versus Contour IP number 17-1894. [00:00:42] Speaker 04: Okay, we're all set. [00:00:52] Speaker 04: All right. [00:00:53] Speaker 04: Counselor Lemley, you have reserved three minutes of your time. [00:00:57] Speaker 04: You may proceed. [00:00:58] Speaker 02: Thank you, Your Honor. [00:00:58] Speaker 02: May I please report? [00:01:00] Speaker 02: The question in this case is a simple legal question. [00:01:03] Speaker 02: Does the distribution of hundreds of copies of a product catalog without restriction at a trade show [00:01:08] Speaker 02: attended by over 1,000 distributors of those products qualifies a printed publication. [00:01:13] Speaker 01: Is it a legal question, or is it an evidence question? [00:01:16] Speaker 01: Because it sure seems to me like you could have done just a wee bit more to prove that this went to the public in a way that a skilled artisan could have found it. [00:01:28] Speaker 01: I agree with that statement, Your Honor, but the answer to your question is... I mean, was there no attempt to get a list of attendees from this trade show? [00:01:37] Speaker 02: Well, we have a list of who presented at the trade show. [00:01:41] Speaker 02: We do not have a full list of attendees. [00:01:43] Speaker 02: That's correct. [00:01:44] Speaker 02: The answer to your question, Your Honor, is it's a legal question reviewed de novo. [00:01:48] Speaker 02: What this court said in both Klopfenstein and Cronin is that where the facts are not in dispute, whether those facts qualify as a printed publication is a question of law reviewed de novo. [00:02:01] Speaker 01: But the inference from the facts not in dispute seems to me [00:02:04] Speaker 01: a little bit difficult, because I'm not sure that I would have come up with the same inferences the board drew from this. [00:02:13] Speaker 01: They seem to be very strict with you. [00:02:15] Speaker 01: But I'm also not sure that that inference lacks substantial evidence. [00:02:19] Speaker 02: Well, I think, Your Honor, that the inference, the ultimate question inference, is a question of law for this court, not for the board. [00:02:27] Speaker 02: What this court said in Klopfenstein is that if there is no dispute as to what the facts are, [00:02:33] Speaker 02: Whether or not those facts rise to the level of a printed publication is a question of law and it is reviewed de novo. [00:02:39] Speaker 01: But isn't the question here still, I don't want to get hung up on this factual stuff too long, but isn't the question, even with the undisputed facts, is there a showing that a skilled artisan would have been able to access this publication with due diligence? [00:02:57] Speaker 01: And based upon this fact, the board drew the inference that [00:03:02] Speaker 01: You didn't show that any skilled artisans even attended this show, that it might have just been salespeople and that it was a closed show and the like. [00:03:13] Speaker 01: Isn't that a factual inference that they're drawing from that? [00:03:16] Speaker 02: The fact that it is a closed show is not one we dispute. [00:03:18] Speaker 02: That's correct. [00:03:19] Speaker 02: And it is right that we did not present evidence that people of skilled in the arts, specific people of skilled in the art, attended the show. [00:03:26] Speaker 02: I think that doesn't matter, Your Honor, for two reasons. [00:03:28] Speaker 02: First, it doesn't matter because this court's precedents don't require that the people in attendance at a trade show be people of skill in the art. [00:03:37] Speaker 02: It's true that this court has talked sometimes interchangeably about people concerned with the art, people interested in the art, people skilled in the art, and sometimes people interested in and skilled in the art, sometimes in the same opinion. [00:03:49] Speaker 02: But if you look at the cases and what they actually hold, what the cases actually hold is that having skill in the art is sufficient. [00:03:57] Speaker 02: But having interest in the art is also sufficient. [00:04:00] Speaker 01: But so here's the other problem with this is this was not a consumer electronics trade show, right? [00:04:07] Speaker 01: That's correct. [00:04:08] Speaker 01: It was like, I may be wrong, but it was more like a recreational vehicles trade show. [00:04:12] Speaker 01: So if you had a consumer electronics show, the inference might be strongly in your favor. [00:04:19] Speaker 01: If you took this to a rodeo, the inference would probably be really strongly against you, that this would be somebody interested in this type of technology. [00:04:28] Speaker 01: It seems like we're somewhere in the middle. [00:04:31] Speaker 02: I think, Your Honor, that in this case, it's a harder inference to draw that some of these people are of skill in the art, but it is perfectly reasonable to draw the inference that they are interested in the art. [00:04:41] Speaker 02: These are distributors of products like the GoPro cameras. [00:04:45] Speaker 02: These are people who went to the trade show precisely so that they could find products that they could turn around and sell to their customers. [00:04:52] Speaker 04: So are you saying that for purposes of determining whether the prior art was published, that it has to only be shown that somebody interested in the art had access or to that, it was published to people or persons skilled in the art, no, interested in the art. [00:05:11] Speaker 04: But to show the ultimate legal determination on the merits here, then you have to show somebody's skill in the art. [00:05:19] Speaker 02: We would have to show that if it were an issue in the art. [00:05:22] Speaker 04: Available. [00:05:23] Speaker 02: I'm sorry? [00:05:23] Speaker 02: That it was available to. [00:05:25] Speaker 02: Available to, that's right. [00:05:27] Speaker 02: If enablement were an issue, we would have to demonstrate that it would enable one of skill in the art to make or use the invention. [00:05:33] Speaker 02: That's right. [00:05:34] Speaker 02: But I think this court's case law makes clear that [00:05:39] Speaker 02: disseminating or making available product catalog to people interested in the art, even if they are not of skill in the art, is sufficient. [00:05:47] Speaker 02: So the cases I would cite for that proposition are first and foremost Orion IP. [00:05:51] Speaker 02: In Orion IP, the product catalog was a sales brochure for a software car part inventory management system. [00:06:01] Speaker 02: It was demonstrated to car dealers. [00:06:03] Speaker 02: Now, car dealers are interested in car parts management systems, but they're not software engineers. [00:06:08] Speaker 02: They don't know how to write these things. [00:06:09] Speaker 02: They are not people of skill in the art. [00:06:11] Speaker 02: Nonetheless, this court said it was sufficient because you had demonstrated this to people interested in the art. [00:06:18] Speaker 02: Similarly, in the Iovate Health case, the Flex Magazine, which is a magazine for bodybuilders, ran an advertisement with nutritional supplements. [00:06:28] Speaker 02: The bodybuilders were not people of skill in the art. [00:06:30] Speaker 02: They weren't chemists, but they were people who were interested in, who might buy the product. [00:06:35] Speaker 02: And finally, in Jocumus versus Leviton, George Lawyer. [00:06:38] Speaker 04: I was surprised that the argument wasn't made that the attendees at the trade show were people that would be interested in this particular product. [00:06:47] Speaker 04: I mean, I've seen rodeos where the rodeo, the cowboy's wearing a GoPro on his hat. [00:06:54] Speaker 04: I've seen tourists walking around here outside the monument, and they got GoPros stuck on their [00:07:00] Speaker 04: So it would seem to me that a tourism trade show may even be a facility for the type of event that would attract somebody interested in this art. [00:07:08] Speaker 04: Why didn't you put that type of evidence out there? [00:07:11] Speaker 02: Well, I agree with your conclusion, Your Honor, and I think that we did. [00:07:14] Speaker 02: What we demonstrated is that the people who attended this trade show were precisely people interested in the art. [00:07:20] Speaker 02: They were distributors of products for motorcycle enthusiasts. [00:07:24] Speaker 03: They wanted to buy cameras that motorcycle enthusiasts could attach to their helmets, could attach to their motorcycles so they could... Let's turn away from the show for a minute because you argue, at least, that the PTAB completely ignored your arguments relating to the catalog being distributed after the show. [00:07:47] Speaker 03: If we agree with you on that, [00:07:49] Speaker 03: Should we remand the entire decision for additional fact-finding? [00:07:59] Speaker 02: If you agree with us on that, you do not need to resolve this question of skill in the art versus interest in the art. [00:08:04] Speaker 02: That is an independent basis for remand. [00:08:06] Speaker 02: I think remand is appropriate because the board got hung up on this question of is this a printed publication, which frankly was only a [00:08:13] Speaker 02: minor issue going into the case, it didn't end up resolving any of the merits of the obviousness analysis. [00:08:21] Speaker 02: And we think under the Cheney doctrine, the appropriate thing to do is not make fact finding here, but send it back to the board to make fact finding on the merits of the obviousness doctrine. [00:08:31] Speaker 02: I will note that the two halves of the argument also can work together. [00:08:37] Speaker 02: Because this is a sales catalog, [00:08:40] Speaker 02: The point of a sales catalog is to be disseminated as widely as possible because GoPro wants to sell products. [00:08:46] Speaker 02: So I think both distributing it to hundreds of [00:08:50] Speaker 02: distributors at the Tucker Rocky show, and allowing those people to take it without restriction, do what they want with it, which is presumably to order products, and mailing it, putting it on the website after the Tucker Rocky show. [00:09:04] Speaker 02: All of those things are part and parcel of what you would expect a trade show sales catalog to do. [00:09:11] Speaker 04: How much would the, to the publication argument that you're making, would be, is added by the [00:09:18] Speaker 04: the claims that this too was published on the website. [00:09:23] Speaker 04: So I think the... Let's say you only had that. [00:09:26] Speaker 04: You appear today, that's all you had. [00:09:29] Speaker 02: I think publishing it on a website that was accessible to people of interest would itself be sufficient, so I think that would be enough. [00:09:35] Speaker 02: It is right as Judge Hughes indicated at the outset of this argument that the evidence in support of that is not as fulsome as the evidence in support of the Tucker. [00:09:44] Speaker 03: But on the other hand, [00:09:46] Speaker 03: Putting it up on a public website is not a closed show. [00:09:50] Speaker 03: It's open to anybody skilled in the art who's interested in finding out about it. [00:09:56] Speaker 02: That's correct, Your Honor. [00:09:56] Speaker 02: And I think that is... Your problem is one of evidence. [00:10:00] Speaker 04: I mean, evidence, the record seems to be lacking as to whether the sufficiency of the publication and how long it was up there. [00:10:09] Speaker 04: There's no screenshot of the publication on the computer. [00:10:14] Speaker 02: It is true that there is no screenshot, and I wish there were, frankly. [00:10:18] Speaker 02: But I think it is also true that this court's precedents don't require that. [00:10:22] Speaker 01: The only- But the board had problems with the website evidence because it was pretty conclusory. [00:10:30] Speaker 01: I mean, you said you put it on a public website. [00:10:32] Speaker 01: But I understand that you can put something, if you physically put something on the website, it may not be [00:10:41] Speaker 01: necessarily available to the public because it may not be indexable or searchable by some search engine. [00:10:48] Speaker 01: So that seems like an odd way to say you've put it on a public or you posted it to a public website, but it does seem that that's what the board faulted you for in not explaining that it was put on the public website in a way that would have been readily accessible. [00:11:02] Speaker 02: I think that's correct, Your Honor. [00:11:04] Speaker 02: And I guess what I would suggest is that because this is a sales catalog, common sense indicates that the [00:11:10] Speaker 01: Well, I don't disagree with you, but this still sounds very fact-based to me. [00:11:15] Speaker 01: And on a substantial evidence standard, if the board's reasoning is you failed to show that it was in a publicly accessible link, how does that lack substantial evidence, even if it's a very strange inference to draw? [00:11:30] Speaker 02: Well, I think, Your Honor, again, I think first that this is not a question of substantial evidence. [00:11:36] Speaker 02: I think the reason it's not a question of substantial evidence is that they didn't present any evidence on the other side. [00:11:40] Speaker 02: They didn't, as the case comes before the court, challenge any of the evidence we did present. [00:11:44] Speaker 02: So what we do have is testimony by Mr. Jones, which the board expressly said it had no reason to doubt the truth of his testimony. [00:11:52] Speaker 02: We have the catalog itself as corroboration of that testimony. [00:11:55] Speaker 02: And we have what the court in the Jockmas case said was frankly just common sense. [00:12:01] Speaker 02: That in the Jockmas case, which is extraordinarily close facts to this one, [00:12:08] Speaker 02: The court said, no one can seriously doubt that. [00:12:12] Speaker 02: Suppose that such a document printed in quantity was intended to be kept secret. [00:12:15] Speaker 02: Its whole purpose was to be spread broadcast as far as possible, to prove that no accident did happen and that it did reach its destination. [00:12:22] Speaker 02: We have its true, only oral, though entirely disinterested testimony. [00:12:27] Speaker 02: But it's a mistake to assume that even under the extraordinarily severe tests applied to the proof of anticipation, every step must be buttressed by documents. [00:12:35] Speaker 01: Why do you think the board was so stringent in evaluating whether this was a printed publication? [00:12:43] Speaker 02: I don't know the answer to that, Your Honor. [00:12:45] Speaker 02: I think the closest I could say is that the board read some of the language in this court's opinion saying skill in the art. [00:12:52] Speaker 02: It concluded that skilled in the art was a requirement and that that sort of led it down, frankly, the wrong path. [00:13:00] Speaker 02: That's a path which, by the way, would [00:13:02] Speaker 02: Mean that releasing a product at a trade show would almost never generate prior art or start the one or to be clock running every patent lawyer in the country Things otherwise, that's just not the way the world you're into your rebuttal time you want to save that I will happily do that your arm, okay? [00:13:21] Speaker 04: Thank you Council showing hard [00:13:31] Speaker 03: Let's talk about evidentiary issues when we were over there on the other side. [00:13:39] Speaker 03: In the red brief, right at the beginning, you state GoPro failed to establish that the so-called GoPro catalog is a prior publication. [00:13:49] Speaker 03: I assume you had a reason for saying so-called. [00:13:52] Speaker 03: What makes you think it wasn't a catalog? [00:13:55] Speaker 00: Oh, I refer to it as the so-called GoPro catalog, not because it is not on its face a catalog. [00:14:00] Speaker 00: But because there is loose reference to the GoPro catalog throughout these proceedings, both below at the P tab and here at this court, where what is put forward as the GoPro catalog is an undated document that has no real admission. [00:14:15] Speaker 00: But the contents look like a catalog. [00:14:16] Speaker 00: The contents generally look like a catalog. [00:14:18] Speaker 03: OK, so then let me turn to that question. [00:14:25] Speaker 03: At page four, you raise those evidentiary foundational [00:14:31] Speaker 03: questions about dates and so on. [00:14:34] Speaker 03: Did you make foundational objections as to date and so on? [00:14:42] Speaker 00: We did, Your Honor. [00:14:42] Speaker 03: Where's that? [00:14:44] Speaker 00: Ultimately, the Board did in fact determine that the GoPro catalog was authentic, overruled our objections on the basis of authenticity. [00:14:52] Speaker 00: Where were your objections? [00:14:54] Speaker 00: I didn't see them. [00:14:56] Speaker 00: We filed objections to the original declaration of Damon Jones [00:15:00] Speaker 00: and then subsequently objected to the authenticity of the GoPro. [00:15:06] Speaker 03: Are you still maintaining those foundational objections on appeal? [00:15:10] Speaker 00: We believe that they are foundational objections. [00:15:13] Speaker 00: But on appeal, this court would ordinarily defer to the board's determinations on authenticity. [00:15:18] Speaker 03: So you're not maintaining them? [00:15:19] Speaker 00: We think that they are. [00:15:20] Speaker 03: Because you were making them. [00:15:22] Speaker 03: That's my point. [00:15:23] Speaker 00: I appreciate it, Your Honor. [00:15:24] Speaker 00: The relevance of the date still can carry forward. [00:15:29] Speaker 00: but that is not necessarily a become a dispositive factor as to the authenticity of the document rather how the board might way of the factors of public accessibility for instance mister lemley refers repeatedly to the chakras case from the second circuit back in nineteen twenty eight and one of the things there the second circuit found particularly probative was that the dates on the catalog that was distributed further corroborated the testimony that was there presented here we have no such corroboration white waiting to depose a declared that [00:15:59] Speaker 00: Respectfully, Your Honor, that would be a subjective work product as to the decisions made in the course of a procedure. [00:16:05] Speaker 01: Is there a corroboration requirement? [00:16:09] Speaker 00: Is there a corroboration requirement? [00:16:11] Speaker 01: I mean, you have the declaration, and the board didn't doubt its credibility. [00:16:17] Speaker 01: In some areas of the law, when we just have testimony, there's a corroboration requirement. [00:16:22] Speaker 01: But I don't see one here. [00:16:24] Speaker 01: Are you arguing that the declarant's testimony [00:16:29] Speaker 01: can't on itself be sufficient evidence? [00:16:32] Speaker 00: Well, here, Your Honor, our primary objection to the testimony of Mr. Jones was, in fact, that it was hearsay testimony. [00:16:38] Speaker 01: In several cases, his declarations- Right, but the board didn't agree with you on that. [00:16:41] Speaker 00: Ultimately, Your Honor, that's correct. [00:16:43] Speaker 00: And so here, if we move forward to whether the board's ultimate fact findings- So we accept his declaration as true. [00:16:50] Speaker 01: If we accept his declaration as true, then- If you accept his declaration as true as to both the trade show, is he also the declarant for the website? [00:16:59] Speaker 00: he is also a good part of the website except everything that he said is true why are those facts sufficient to show that this is a print of publication first let's parses out into the trade show on the website i think we do need to walk through those separately in large part because that's what the board did what the board was entitled to do and the board has the website issue the second of those expressly found that it was not going to consider anything other than what happened [00:17:27] Speaker 00: at the Tucker Rocky Roadshow. [00:17:29] Speaker 00: And our question is, was that error? [00:17:32] Speaker 00: And if it was, what do we do about it? [00:17:36] Speaker 00: It certainly was not error. [00:17:38] Speaker 00: So under 35 USC 312A3, the petitioner is obligated to point out with particularity the evidence that supports the grounds for the challenge to each claim. [00:17:48] Speaker 00: Here, the petitioner did not point out [00:17:51] Speaker 00: with particularity in its petition that it was relying on anything other than distribution at the Tucker Rocket Roadshow itself in support of the public availability of the GoPro catalog. [00:18:01] Speaker 00: That's exactly what happened in the petition. [00:18:04] Speaker 00: That's exactly what the PTAB found. [00:18:06] Speaker 00: And on the basis of that, the PTAB said... They said they publicly posted the catalog on a publicly available website. [00:18:15] Speaker 00: Mr. Jones stated that in his declaration. [00:18:16] Speaker 00: That was not part of the petition to the board. [00:18:19] Speaker 00: The petition itself did not rely on the website. [00:18:22] Speaker 00: The petition itself just relied on distribution at the Tucker Rocky Roadshow. [00:18:26] Speaker 00: The board said, as a result, we are entitled not to consider anything that was not actually particularly pointed out in your petition. [00:18:34] Speaker 00: We are not considering that. [00:18:36] Speaker 00: That's in the appendix at page 22 footnote 8 and a 53 note 8. [00:18:40] Speaker 00: This is actually something that GoPro sought reconsideration on. [00:18:44] Speaker 00: And the board expressly denied reconsideration on exactly this point. [00:18:49] Speaker 00: We've already told you this was not in your petition. [00:18:51] Speaker 00: We are not considering this. [00:18:52] Speaker 00: That's in the appendix 71 to 72. [00:18:54] Speaker 00: This is ultimately a functional finding of waiver. [00:18:58] Speaker 00: And this court should not be in the petition. [00:18:59] Speaker 03: This court has found a research paper, which was orally presented during a conference attended by 50 to 500 cell culturists, a printed publication. [00:19:17] Speaker 03: In light of that kind of precedent, and there's of course other, what's your response to GoPro's main contention that the PTAB's requirement that the trade should be advertised and accessible to the general public in addition to trade association members is contrary to our precedent? [00:19:40] Speaker 03: That seems to be the core. [00:19:43] Speaker 00: It does, Your Honor. [00:19:43] Speaker 00: And there are actually two responses. [00:19:45] Speaker 00: The first response is, [00:19:47] Speaker 00: that this could be approached as a question of is there general public availability? [00:19:51] Speaker 00: If something is generally publicly available, it's out in broad circulation, anybody could readily have access. [00:19:57] Speaker 00: Then it's presumed that persons with more skill are a subset of the general public. [00:20:01] Speaker 00: It becomes a non-issue pretty quickly. [00:20:03] Speaker 00: Where we need to focus on things which is where the website is. [00:20:06] Speaker 00: Which is where a website can be. [00:20:09] Speaker 00: And on that, this court has [00:20:11] Speaker 00: uh... advised parties to be careful as to provide sufficient evidence of public availability through a website for instance of the sri decision if you have complete block brought circulation ready indexing ready availability then we get there pretty easily if we don't have that level of public availability then we need to look at what subset of the public was in fact in attendance at a particular conference or to whom all of the subset of the relevant public was the potential reference disclosed [00:20:41] Speaker 00: Here, as Judge Hughes pointed out during Mr. Lemley's opening argument, this isn't CES. [00:20:49] Speaker 00: If this was the Consumer Electronics Show, then we probably would be in a very different position here today. [00:20:55] Speaker 00: Wasn't it an outdoor show? [00:20:58] Speaker 00: It was an outdoor show dedicated to outdoor motorsports. [00:21:02] Speaker 00: There's no showing, and on this there's substantial evidence to find that there is no showing. [00:21:09] Speaker 04: When you look at the catalog, it's filled with pictures of the GoPro camera mounted on vehicles and handlebars and things. [00:21:19] Speaker 04: Is that the type of public that would be interested in the show? [00:21:25] Speaker 00: Well, first there's two levels here again. [00:21:27] Speaker 00: The first level is that it's not the board's imposition of a requirement. [00:21:31] Speaker 00: It's actually this court's precedent. [00:21:33] Speaker 00: that the availability needs to be of persons interested and ordinary skill in the art. [00:21:39] Speaker 00: That goes back to Henry Weier and carries forward as recently as, for instance, Blue Calypso. [00:21:45] Speaker 00: There have been times where the language, persons interested in the art, has been cited without the remainder of the expression and ordinarily skilled. [00:21:52] Speaker 00: But it has been this court's requirement that references must be given. [00:21:57] Speaker 03: Yeah, your opposing counsel is right. [00:21:58] Speaker 03: That is, sometimes [00:22:01] Speaker 03: it's in all those phrases or in one opinion used interchangeably. [00:22:06] Speaker 00: I'm not sure it's fair to say that they're completely interchangeable, but that will actually get to my second point. [00:22:10] Speaker 00: As to whether they're completely interchangeable, this court's rule of precedent is pretty strict. [00:22:15] Speaker 00: We go to the past precedent, and unless and until that is overturned by this court en banc, that remains the precedent. [00:22:21] Speaker 00: In rewire, the CCPA set forth the precedent that it needs to be available to persons interested and ordinarily skilled [00:22:30] Speaker 00: The CCPA's president became the president of this court through South Tech in 1984, I believe it was. [00:22:38] Speaker 00: You're familiar with the phrase sub-celentio. [00:22:42] Speaker 01: Let's just assume that interested is good enough, that we don't have to find that skilled artisans were at this trade show, that interested people were at the skilled trade show. [00:22:55] Speaker 01: Why is it a trade show where [00:23:00] Speaker 01: First of all, GoPro showed up. [00:23:02] Speaker 01: I mean, by definition, they're not going to show up at a trade show where nobody's interested in their products. [00:23:09] Speaker 01: They handed out hundreds of catalogs, which itself has to demonstrate a high level of interest. [00:23:15] Speaker 01: Isn't that enough to show people that were interested in their products have a copy of this printed publication? [00:23:23] Speaker 00: I don't believe so. [00:23:24] Speaker 00: And actually, I think the language around are selected helps make the point I'm about to make. [00:23:30] Speaker 00: was some difference between persons ordinarily skilled and persons interested, but that it wasn't just a clear demarcation. [00:23:38] Speaker 00: There is a reason why these concepts can be merged at times. [00:23:42] Speaker 00: The notion of persons interested in the art is not persons interested in a product they find on a shelf in the supermarket. [00:23:49] Speaker 00: It's persons interested in the art, not the product, the art. [00:23:54] Speaker 00: I may be a potential consumer for a product, but that does not make me a person interested in the art [00:24:00] Speaker 00: in which that product exists. [00:24:03] Speaker 00: The cases cited by Mr. Lumley during his argument largely involved distribution to people within the trade, within the field of art which matters. [00:24:14] Speaker 00: For instance, if you were at a conference where GoPro was in attendance and Contour was in attendance, somebody from Contour who was not himself a person of ordinary skill but was clearly interested in the art, beyond just interested in the product, interested in the art, may actually then [00:24:30] Speaker 00: pick up a catalog, take it back home, give it to his competitive intelligence folks, give it to his engineers. [00:24:35] Speaker 00: And you have a reason for a court to readily believe that you are going to have dissemination into the world of skilled artisans. [00:24:42] Speaker 03: But in the real world, there's also a concept of cross-fertilization in which somebody interested, a member of the public, picks up that catalog and takes it to their local dealer who says, oh, this is interesting, and passes it on. [00:25:00] Speaker 03: to a competitor. [00:25:03] Speaker 03: Says, hey, do you guys have something like this? [00:25:05] Speaker 03: You're my normal supplier. [00:25:07] Speaker 03: And that has to be taken into account, how the real world works. [00:25:12] Speaker 00: There are aspects, of course, to how the real world works. [00:25:15] Speaker 00: But in this case, we're dealing with a static record and evidence. [00:25:19] Speaker 00: And there was no evidence put forward that these catalogs were distributed to anyone actually interested in this field of art [00:25:27] Speaker 00: that would then take it onward. [00:25:30] Speaker 04: There's evidence that hundreds of the catalogs were distributed at the trade show. [00:25:34] Speaker 04: And what's the level of skill in the art we're talking about here? [00:25:37] Speaker 04: Isn't that a BA in electrical engineering? [00:25:40] Speaker 00: We're looking at a degree in electrical engineering. [00:25:43] Speaker 04: What proof did you offer and put in that showed that somebody with a BA in electrical engineering would not be interested in the show? [00:25:52] Speaker 00: Your honor, I don't think it was our burden to put forward information or evidence as to... No, but it's your burden to rebut evidence. [00:25:59] Speaker 00: But here, your honor, there was no evidence to rebut, and that's precisely the point the board ultimately reached. [00:26:04] Speaker 04: You have a catalog, and you have a trade show, and you have what's happening here. [00:26:09] Speaker 04: I mean, we're looking at a record that basically is one-sided. [00:26:14] Speaker 00: I agree, your honor, but that's the challenge of proving a negative, where we have a non-public trade show, as Mr. Lemley agrees. [00:26:21] Speaker 01: So if this was a public trade show, [00:26:23] Speaker 01: Would the analysis be completely different, even assuming that all the attendees were the same? [00:26:28] Speaker 00: If it was a public trade show, then the analysis would at least be somewhat different. [00:26:31] Speaker 00: The reason it'd be somewhat different is that you would then have to make a presumption that a broader set of the public had access to the trade show. [00:26:40] Speaker 01: This is what baffles me about this case is I assume your argument would be if somebody took copies of this GoPro catalog to a football stadium on Sunday and handed it out to 50,000 people, [00:26:53] Speaker 01: that that's public, so you've got a presumption that it's a printed publication, right? [00:26:58] Speaker 00: Effectively, yes. [00:26:59] Speaker 01: Even if no football fans are interested in this art whatsoever. [00:27:05] Speaker 01: Whereas you have a specialized trade show that's non-public, and you have people that are clearly interested in the product, which at least raises an inference that they're interested in the art. [00:27:19] Speaker 01: And so now you're saying this because it's non-public, [00:27:22] Speaker 01: even though it's much more specialized, it doesn't need to print a publication thing as opposed to 50,000 random football fans. [00:27:30] Speaker 00: I think your honor is actually getting to exactly the right point. [00:27:33] Speaker 00: It is a function of where the burden lies. [00:27:35] Speaker 00: Where something is distributed broadly to the public, the burden would then shift, if you will, to us to try to push back. [00:27:41] Speaker 01: But what does broadly to the public mean? [00:27:43] Speaker 01: I mean, maybe my hypothetical is wrong. [00:27:45] Speaker 01: Let's assume instead of a football match on Sunday, we're talking about [00:27:50] Speaker 01: Well, I'm not going to use that because that would give me trouble. [00:27:56] Speaker 01: A sporting event where only 1,000 people attended, the exact same amount here, but it was open to the general public. [00:28:02] Speaker 01: Would the presumption still arise that if this was handed out to 1,000 people or a couple hundred of the 1,000 people that attended a sporting match open to the general public, would it be a printed publication? [00:28:13] Speaker 00: It may well be. [00:28:14] Speaker 00: And I say may well be because one of the things this court has consistently cautioned is that every case on the issue of 102B [00:28:20] Speaker 00: needs to be decided on its facts on the very specific facts of its case. [00:28:24] Speaker 00: And we might learn other things about the facts there. [00:28:27] Speaker 00: And I realize you're asking me to decide on a specific hypothetical, but there could be other facts related to that hypothetical that could shift this. [00:28:33] Speaker 00: Well, there aren't any other facts. [00:28:35] Speaker 00: I gave you all the facts. [00:28:35] Speaker 00: That's the point of a hypothetical. [00:28:37] Speaker 00: If that's all the facts we have, then I would say I would be inclined to presumptively find that we're going to say that that has been opened up to the public. [00:28:44] Speaker 00: Yes. [00:28:45] Speaker 00: Here we have a non-public trade show. [00:28:48] Speaker 00: And so we need to know who was at that trade show. [00:28:50] Speaker 01: But people that show up at trade shows are by definition interested in the products. [00:28:56] Speaker 01: And I know you want to make a distinction between product and art. [00:28:58] Speaker 01: I'm not sure that I buy that. [00:29:00] Speaker 01: But they're by definition interested in what's being showed and passed out and the like at a trade show. [00:29:07] Speaker 00: Your honor, here we're again getting back to issues of fact. [00:29:10] Speaker 00: And on the facts, there are no facts that say the people that were at this trade show [00:29:15] Speaker 00: were in fact interested in action cameras. [00:29:17] Speaker 01: Except that two or three hundred people picked up the catalog. [00:29:22] Speaker 00: Well, or were handed the catalog. [00:29:24] Speaker 00: I've been handed many things at trade shows. [00:29:25] Speaker 00: Why isn't that enough? [00:29:27] Speaker 00: Circular file. [00:29:27] Speaker 00: Why isn't that enough? [00:29:29] Speaker 00: Because all we have in terms of facts is that the people at this trade show would have been interested in outdoor recreational motorsports. [00:29:36] Speaker 00: And accessories. [00:29:37] Speaker 00: And accessories. [00:29:38] Speaker 00: That does not necessarily get us to the point, and the board as a matter of fact... By definition. [00:29:44] Speaker 04: So supposes we're talking about a medical or chemical compound, and I give a seminar, and I have a PowerPoint, and I have three slides that identifies this chemical compound that's at play, and we go through that. [00:30:02] Speaker 04: Do I have to show that everybody in the audience understood the chemical compound, or that they were even awake? [00:30:09] Speaker 04: Isn't it isn't it enough that I published the chemical compound upon on a power point and that the attendees who were there? [00:30:18] Speaker 00: Were there because they're interested in that type of topic respectfully rather that was a challenging one because a federal Display on power points. [00:30:27] Speaker 00: It's often been found not to be a print publication But if there was an associated hard copy of this I handed out copies of the of the power point [00:30:34] Speaker 00: uh... that presumably the attendees at that conference and this court has had cases looking at conferences of that type presumably the intents of the conference would be sufficiently uh... persons interested in the art and most likely we would have persons of ordinary skilled in that how is that different from this case uh... because your honor the board expressly found as a matter of fact that there had been no evidence and no showing that any person's ordinary skill in the art were in attendance at this show we have no reason to believe that a person's even [00:31:03] Speaker 00: generally interested in the artwork in terms of his show. [00:31:05] Speaker 00: And this isn't ultimately a question of law. [00:31:08] Speaker 00: This is ultimately a question of fact. [00:31:10] Speaker 00: Two key cases for this court to consider. [00:31:14] Speaker 00: The first, precedential. [00:31:16] Speaker 00: The second, admittedly non-precedential, but recent and so worth at least taking a peek at. [00:31:21] Speaker 00: Norian, that's at 363 F3 at 1330. [00:31:26] Speaker 00: The Norian decision [00:31:28] Speaker 00: directly address the issue of substantial evidence, whereas here there had been a finding below that there had been a lack of evidence. [00:31:36] Speaker 00: It wasn't disputes of fact. [00:31:38] Speaker 00: It was how to weigh those facts, and substantial evidence dictated an affirmance. [00:31:42] Speaker 00: OK. [00:31:43] Speaker 00: Most recent. [00:31:44] Speaker 00: We have your argument. [00:31:45] Speaker 04: I think you're over your time. [00:31:47] Speaker 04: Thank you, Your Honor. [00:31:47] Speaker 04: Thank you. [00:32:01] Speaker 01: Counsel, you have two and a half minutes. [00:32:03] Speaker 01: If I disagree with you that this is a legal question, and let's just talk about the trade show, not the email or the website. [00:32:09] Speaker 01: If I disagree with you that this is a legal question, how would you have me write it that there's a lack of substantial evidence here for the trade show? [00:32:17] Speaker 02: Your Honor, I guess what I would say is the following. [00:32:19] Speaker 02: First, the standard is preponderance of the evidence. [00:32:22] Speaker 02: And the fact that the evidence is what it is, that no one is disputing [00:32:28] Speaker 02: whether or not this is the catalog, despite some artful statements by my learned colleague, means that you can look at the evidence and you can say, all right, was it reasonable for the board to weigh this evidence in the way that they did? [00:32:44] Speaker 02: Or was it more reasonable to conclude that this catalog was, in fact, distributed to those of interest in the art? [00:32:51] Speaker 01: The problem is it's not just more reasonable. [00:32:54] Speaker 01: I mean, the substantial evidence standard is much, much harder for you than that. [00:32:58] Speaker 01: It's essentially that no reasonable person would come to the board's conclusion. [00:33:03] Speaker 01: And even if all of us and most people would come to your conclusion, is there no evidence that would support a conclusion that this wasn't a printed publication distributed at the trade show? [00:33:16] Speaker 02: I think on the trade show issue, if you believe there is substantial evidence, then it's going to matter how you resolve the legal question of whether it's interested in the art or skilled in the art. [00:33:25] Speaker 02: If you agree with the board on the [00:33:27] Speaker 02: unquestionably legal question of skill in the art, and you think it's substantial evidence, then I think we'd have trouble. [00:33:33] Speaker 03: Given what's up all over YouTube, can we take notice that if you're a dealer who sells to people who are interested in outdoor motorsports, that they're probably the kind of people who want to record that? [00:33:53] Speaker 03: Absolutely. [00:33:54] Speaker 02: Absolutely, Your Honor, and I think this Court has asked, and at the Board, Judge Arbus asked the question. [00:34:00] Speaker 02: Doesn't the fact that GoPro attended the trade show, isn't that some evidence people will be interested in their product? [00:34:05] Speaker 02: Mr. Schoenhardt says there may be people interested in the product at the trade show. [00:34:08] Speaker 02: So I think it matters if we think interested is the right test. [00:34:12] Speaker 02: No reasonable board could conclude that there was no one interested in this at the trade show. [00:34:18] Speaker 02: There were hundreds of copies distributed. [00:34:19] Speaker 02: They were distributed without restriction. [00:34:21] Speaker 02: It was a sales catalog made up on a putter website. [00:34:24] Speaker 04: Were any of your competitors at the trade show? [00:34:27] Speaker 02: I believe the answer is yes, Your Honor. [00:34:28] Speaker 02: We did have a list of presenters, of people who had booths. [00:34:34] Speaker 02: So we didn't have a full list of attendees, but we did actually submit a list of those who had booths to sell products. [00:34:41] Speaker 04: So I think the answer is, it's hard to imagine that a sales catalog like this... So if you have someone that has a booth, let's say your competitor has a booth, is that someone interested in the art? [00:34:54] Speaker 02: Absolutely. [00:34:56] Speaker 02: Probably also someone of skill in the art, although we did not present evidence on that. [00:35:01] Speaker 02: Because frankly, [00:35:03] Speaker 02: I don't think anyone at the time that this was going on thought that this was a big issue simply because everyone understood trade shows were the sorts of things that could be the basis for a printed publication until the sports decision. [00:35:15] Speaker 01: Can I just close the loop because your friend raised the point that I had appreciated before that the website information wasn't in your petition and that that's the reason the board didn't consider it. [00:35:27] Speaker 01: Is that correct? [00:35:28] Speaker 02: Not exactly, Your Honor. [00:35:29] Speaker 02: The petition did not affirmatively say website. [00:35:32] Speaker 02: It instead cited to the paragraph in the Jones Declaration, which did include it. [00:35:37] Speaker 02: But everyone knew that this was an issue. [00:35:39] Speaker 02: They briefed it in their preliminary response. [00:35:41] Speaker 02: It was explicitly called out in the board's institution decision. [00:35:44] Speaker 02: It was briefed in their response. [00:35:45] Speaker 02: And you don't think he waived it? [00:35:46] Speaker 02: Absolutely not. [00:35:47] Speaker 02: And neither does the board. [00:35:48] Speaker 02: If you look at what he pointed to, which is footnote 8, footnote 8 does not say this is waiver. [00:35:52] Speaker 02: Footnote 8 says, though it wasn't in the petition, the Jones declaration does say x and y, and then it goes on on the merits to resolve the question of website. [00:36:01] Speaker 02: I don't think anybody thought there was waiver, and there certainly was no lack of it. [00:36:03] Speaker 04: Okay, you're out of time. [00:36:04] Speaker 04: Do you want to conclude? [00:36:06] Speaker 02: No, Your Honor, I'm fine. [00:36:08] Speaker 02: Thank you.