[00:00:01] Speaker 03:
Good morning, everyone.

[00:00:03] Speaker 03:
The first argued case this morning is number 171131, renexed against Apple, Incorporated.

[00:00:10] Speaker 03:
Mr. Tenofeyev.

[00:00:25] Speaker 01:
Your Honor, and may it please the Court.

[00:00:27] Speaker 01:
The patent trial on the appeal board's decisions below

[00:00:30] Speaker 01:
should be reversed for at least three reasons.

[00:00:33] Speaker 01:
First, the board improperly assumed the publication date of a reference in the absence of requisite evidence.

[00:00:40] Speaker 01:
Second, the board inexplicably switched its initial incoherency theory with a new theory lacking evidentiary support.

[00:00:47] Speaker 03:
But on the publication issue, maybe we can dispose of that.

[00:00:52] Speaker 03:
Didn't the burden shift to come forward with a date explicitly written on the record?

[00:00:59] Speaker 03:
Whose burden is it?

[00:01:01] Speaker 01:
Your Honor, we think that actually that on the dynamic drinkware, and we think that on the Indra Magnum, the burden remains on the patent challenger to introduce evidence that the printed publication was publicly available on a certain date.

[00:01:14] Speaker 01:
So opposition is, as we said, particularly in the blot brief, that the burden never shifted to genetics.

[00:01:19] Speaker 02:
Well, it said right on its face what the date was.

[00:01:23] Speaker 02:
And there was another publication that showed the procedure whereby

[00:01:28] Speaker 02:
This organization produces its documents.

[00:01:32] Speaker 01:
Your Honor, the RFC 2041 says nothing as to what the date refers to, whether it's the initial draft or whether it's the final version.

[00:01:40] Speaker 01:
The process document, RFC 2026, says nothing about the date on the cover of an RFC.

[00:01:46] Speaker 01:
The only reference in 2026 to a date is to a copyright date.

[00:01:51] Speaker 01:
But this court held that copyright date by itself.

[00:01:53] Speaker 02:
Well, it was more than a copyright date.

[00:01:54] Speaker 02:
The top said November 1998.

[00:01:57] Speaker 02:
They've also said distribution for this memo is unlimited.

[00:02:01] Speaker 01:
Yes, but that statement addresses the scope of the distribution.

[00:02:05] Speaker 01:
So once actually that document is publicly released on a particular date, indeed, it will be distributed without limitation.

[00:02:12] Speaker 01:
It doesn't address the question of when it was publicly available.

[00:02:16] Speaker 01:
So there is no evidence, no competent evidence that was introduced what exactly that date, in fact, means.

[00:02:24] Speaker 03:
prima facie evidence which shifted the burden to show that it was not available?

[00:02:30] Speaker 01:
Your Honor, we don't think that it really, it even rises to the level of a prima facie evidence.

[00:02:35] Speaker 01:
We think that the prima facie evidence has to be something strong.

[00:02:38] Speaker 01:
It has to be some corroborating evidence as to what that particular date is.

[00:02:43] Speaker 01:
And the only evidence that Apple introduced and that the board considered was the evidence of its expert.

[00:02:48] Speaker 03:
So if I buy today's New York Times and it has a date on it that

[00:02:54] Speaker 03:
I still have to show something or other 10 or 20 years later?

[00:02:59] Speaker 01:
No, Yuan, I think over New York Times, you will have the actual publication.

[00:03:03] Speaker 01:
But if you introduce just a printout with a particular date and no evidence as to what is the practice of the organization with respect to that date.

[00:03:13] Speaker 01:
I mean, with New York Times, there is at least historical practice that the date appears on the cover, underneath the logo.

[00:03:20] Speaker 01:
With respect to the RFC, again, our contention is there was no evidence as to what is the practice of the organization with respect to the date.

[00:03:29] Speaker 01:
And that's exactly the requirements that the court has enforced.

[00:03:32] Speaker 01:
It enforced it in recall, in realista, in SRI International, that you need to introduce competent evidence of the organization's practice.

[00:03:40] Speaker 03:
Okay, so we interrupted you.

[00:03:41] Speaker 03:
Let's go on to your other points.

[00:03:43] Speaker 01:
I will just remind you, just one more point on the print publication to finish the thought.

[00:03:48] Speaker 01:
Indeed, we do agree that Apple tried to introduce evidence that potentially could establish such practice and tried to introduce the declaration by the RFC editors' representatives.

[00:03:59] Speaker 01:
We challenged and we think that we have a good basis that that evidence was inadmissible and also not probative.

[00:04:06] Speaker 01:
even as this court thinks that there may be some other evidence that could establish the practice organization, the proper course is really to remand to the board so that the board can actually properly assess that evidence.

[00:04:18] Speaker 01:
But turning to the second issue, the second issue relates to the proceedings based on BEZR.

[00:04:23] Speaker 01:
And in those proceedings, the board committed two errors.

[00:04:27] Speaker 01:
First, at Apple's urgings, the board initially invoked an inherency theory to find the best of discloses that claimed broad-bed limitation.

[00:04:36] Speaker 01:
And it relied on the testimony of Apple's expert that the cable in the modem and vessel can transmit modulated signals.

[00:04:43] Speaker 02:
Counsel, you're arguing the obviousness rejection.

[00:04:48] Speaker 02:
I assume you're familiar with patent practice.

[00:04:52] Speaker 02:
There's a duty of disclosure, which requires an applicant to disclose references, material to the patentability of the invention.

[00:05:01] Speaker 02:
There are 70 columns of references cited here.

[00:05:05] Speaker 02:
which shows that it's a very crowded field.

[00:05:12] Speaker 02:
The applicants obviously presumably felt, if they were acting properly, that all of these references were material to the patentability of the invention.

[00:05:22] Speaker 02:
Why isn't it very clear then that these claims are very obvious?

[00:05:27] Speaker 01:
Your Honor, we only, with respect to Basel, we only actually, our appeal is limited to just four claims.

[00:05:33] Speaker 01:
And these concern two limitations.

[00:05:35] Speaker 01:
They concern the broadband limitation.

[00:05:37] Speaker 02:
But I'm talking about the citation of 70 columns of references, which looks like the applicants were trying to obscure the nature of the prior art and not comply with the duty of disclosure.

[00:05:56] Speaker 01:
Your Honor, we don't think that that was the case at all.

[00:05:59] Speaker 02:
And actually, what we are... Why were 70 columns of references cited?

[00:06:04] Speaker 02:
That doesn't help the examiner.

[00:06:07] Speaker 01:
Your Honor, but I think the examiner, but the evidence that was submitted to the examiner was the evidence that we believe the examiner had to have.

[00:06:15] Speaker 01:
And if you also look at the Aventale, I mean, the examiner did, the examiner initially rejected some of the claims.

[00:06:20] Speaker 01:
We submitted clear, what we argue is clear disclosure to the examiner that allowed the claims.

[00:06:26] Speaker 01:
So I think that was a typical patent process that was going on in this case.

[00:06:31] Speaker 01:
But just, Yuan, if I may turn just to focus the court's attention on these two limitations.

[00:06:35] Speaker 01:
With respect to the broadband limitation, the board initially adopted the Inherency Theory because there was no testimony, no expert testimony that expressly discloses the separate channels in the modulated transmission link.

[00:06:49] Speaker 01:
And that was a necessary element of a claim broadband limitation.

[00:06:52] Speaker 01:
There is no dispute about it, and the board's decision mentions that.

[00:06:56] Speaker 01:
In the final decision, however,

[00:06:58] Speaker 01:
The board asserted that the inherency was not necessary to find obviousness, and the board therefore not only impermissibly switched the obviousness theories, but that second obviousness finding is also completely unsupported by evidence, because you have to have expert evidence that Bezer also disclosed separate channels.

[00:07:17] Speaker 01:
The second point on Bezer concerns the board's finding that just because the originating device in Bezer can be a web TV or multimedia device that's capable of connecting to a server,

[00:07:28] Speaker 01:
That necessarily means that the terminating device in BESA also must be a server.

[00:07:34] Speaker 01:
The only evidence in which the board relied was evidence by Apple's expert who testified that the WebTV device could be used to connect to a server.

[00:07:46] Speaker 01:
But that evidence cannot support the finding that WebTV necessarily would so connect, and therefore cannot support the inherently finding that the terminating device in BESA was disclosed as a server.

[00:08:00] Speaker 01:
Turning to the further issue that we want the court to address, the further issue is the direct requirement in Aventale.

[00:08:07] Speaker 01:
And in the proceedings based on Aventale, the board impermissibly disregarded Vernetix's prior prosecution history disclaimer when construing three related patent terms.

[00:08:19] Speaker 01:
During the prosecution of a related patent, Vernetix disclaimed non-direct communications that were disclosed in Aventale, the very same reference that is at issue here.

[00:08:29] Speaker 01:
The PTO in that proceeding allowed claims as a result of that disclaimer.

[00:08:33] Speaker 01:
Apple itself then described that disclaimer in the district court proceeding as unambiguous, as a clear mandate to the patent office.

[00:08:41] Speaker 03:
But they provided an alternative argument.

[00:08:44] Speaker 03:
Did they not accept the disclaimer?

[00:08:48] Speaker 03:
Was that not for that reference?

[00:08:50] Speaker 01:
Joanne, if you're referring to vernetics, there were several arguments that vernetics provided in the district court.

[00:08:55] Speaker 01:
In the district court, vernetics in fact challenged whether or not that disclaimer should be enforced.

[00:09:02] Speaker 01:
Vernetics lost at that point.

[00:09:03] Speaker 01:
So the district court's opinion, both Apple's brief, its description of a disclaimer, as unambiguous, is very clear.

[00:09:10] Speaker 01:
And I can provide citations for the court that's actually on appendix 23995 and 96.

[00:09:18] Speaker 01:
And in this report, in its opinion, enforced disclaimer finding that the disclaimer with direct connection in Aventail was clear and unambiguous.

[00:09:26] Speaker 01:
The task for when the disclaimer is unambiguous is whether a patent owner's competitors would believe and would view the disclaimer as unambiguous.

[00:09:36] Speaker 01:
There can be no stronger evidence of a clarity with disclaimer than the fact that Apple itself, in the proceeding against varnetics, described the disclaimer as unambiguous and successfully enforced it.

[00:09:48] Speaker 01:
The board's main reason for actually rejecting the disclaimer is because the board said that Vornetix purportedly could not define what was meant by the direct communication.

[00:10:00] Speaker 01:
That was, first of all, incorrect because Vornetix explained to the board that the construction referred to direct addressability.

[00:10:07] Speaker 01:
And importantly, Vornetix's expert testified that because the communication path in EventTale is related for the SOC server, the EventTale server,

[00:10:16] Speaker 01:
One of ordinary skill and the art would understand that this is not a direct connection between the client device and the remote host.

[00:10:24] Speaker 01:
So there was explanation what direct meant.

[00:10:26] Speaker 01:
There was supporting expert evidence.

[00:10:28] Speaker 01:
And actually, this court in Cisco, although it didn't have reason to construe, have an issue with the claim term direct communication, it certainly applied the district court's construction of direct.

[00:10:39] Speaker 01:
And it had no trouble understanding what that particular term meant.

[00:10:45] Speaker 01:
In any event, even if there is some doubt about the precise definition of direct, what Vernetix disclaimed here was precisely the type of a non-direct communication that is disclosed in Aventail.

[00:10:57] Speaker 01:
Therefore, at the minimal, Vernetix's disclaimer extended to the scope of Aventail.

[00:11:03] Speaker 01:
And for that reason, the board's conclusion that even irrespective of the proper claim construction, Aventail disclosed direct communication just makes no sense.

[00:11:14] Speaker 01:
So this court should correct the board's construction of a direct communication and should then reverse the findings, the board's findings, that Aventale, in fact, disclosed the direct communication.

[00:11:26] Speaker 01:
If you have no other questions, I will... Okay, good.

[00:11:29] Speaker 03:
Thank you.

[00:11:29] Speaker 03:
We'll save the rest of your time for rebuttal.

[00:11:32] Speaker 01:
Thank you.

[00:11:40] Speaker 03:
Mr. O'Quinn.

[00:11:42] Speaker 00:
Thank you, Judge Newman, and may it please the court, John O'Quinn, on behalf of Apple.

[00:11:47] Speaker 00:
As my colleague noted, I think the principal issue in these IPR appeals is whether the board was entitled to find as a factual matter that RFC 2401 was publicly accessible prior to the critical date where Apple introduced evidence relating to the RFC practices, but Vernetics presented no evidence whatsoever that it was not publicly available or accessible as of the date on the face of the document.

[00:12:11] Speaker 00:
That issue, of course, is dispositive as to three of the five patents at issue in this proceeding and all but six of the claims of the remaining two patents.

[00:12:20] Speaker 00:
And because those six remaining claims add obvious limitations that are suggested in the Beezer reference itself, the board need not reach any of the issues that my colleague was talking about at the end relating to claim construction.

[00:12:32] Speaker 00:
That only applies in the two Aventail proceedings and need not reach any of the issues that relate to Aventail.

[00:12:40] Speaker 00:
Just very briefly on RFC 2401, of course, is a request for comments on a standard proposal by the Internet Engineering Task Force, a well-known standard-setting organization for Internet protocols.

[00:12:54] Speaker 00:
That reference has been asserted in a variety of proceedings where Vernetics did not contest its prior art status, including in the ITC, including in re-exams, including in this court, and with good reason.

[00:13:08] Speaker 00:
Of course, the whole

[00:13:09] Speaker 00:
The purpose of a standard-setting document is for the public to be able to use it to facilitate interoperability, as this Court has recognized in Kyocera, and a request for comments by its terms invites timely public feedback.

[00:13:21] Speaker 00:
The Board relied on the indicia of public accessibility in 2401 itself.

[00:13:27] Speaker 00:
It relied on the uncontroverted testimony of our expert, who is a person of ordinary skill in the art, who testified as to his basis of familiarity with RFC practices,

[00:13:37] Speaker 00:
and relied on RFC 2026, a corroborating document by the Internet Engineering Task Force that talks about its protocols and procedures.

[00:13:45] Speaker 02:
And there was no evidence to the contrary?

[00:13:47] Speaker 00:
And there was no evidence offered to the contrary.

[00:13:49] Speaker 00:
And there's a reason for that, Judge Laurie, because there is really ultimately no question that RFC 2401 was publicly accessible as of November 1998.

[00:14:01] Speaker 00:
That is what the declaration, for example, of Ms.

[00:14:04] Speaker 00:
Ginoza, which the board admittedly did not rely on, but she was the RFC editor going all the way back to 1999 prior to the critical date.

[00:14:13] Speaker 00:
There's a declaration from her that indicated that it was publicly accessible as of the date on the face of the document and certainly prior to the critical date.

[00:14:24] Speaker 00:
And indeed, you can look at a variety of corroborating things that confirm that.

[00:14:29] Speaker 00:
all of which was available to the board, and there was no evidence whatsoever to the contrary.

[00:14:35] Speaker 00:
If the court has questions on this issue, of course, I'm happy to address those.

[00:14:40] Speaker 00:
But between the document itself, the corroborating RFC 2026... Why don't you deal with the other six claims?

[00:14:47] Speaker 00:
Sure, I'd be happy to.

[00:14:48] Speaker 00:
So let me first turn to the issue that I think that my colleague was most focused on, which was the issue of

[00:14:58] Speaker 00:
of whether or not the board changed theories with respect to two of the claims.

[00:15:03] Speaker 00:
In this effect, only two of the claims claimed 4 and 26 of the 8705 patent.

[00:15:09] Speaker 00:
The other claims, the claims 14 and 31 of the 8705 and claims 13 and 28 of the 0705 patent, those just require that the target device be a server.

[00:15:22] Speaker 00:
The board found that it would be obvious to a person of ordinary skill in the art

[00:15:28] Speaker 00:
that you could use the invention with a server.

[00:15:32] Speaker 00:
After all, a server is just a computer that provides content or information to a client device that asks for it.

[00:15:37] Speaker 00:
It's a concept that's as old as computing.

[00:15:40] Speaker 00:
If you load a web page, that information, when you look on the internet, it's coming from a web server.

[00:15:45] Speaker 00:
If you download music or video, it's coming from a server.

[00:15:49] Speaker 00:
And as the board observed, the user specifically contemplates that the network devices, such as web TV sets, interactive video games, personal computers,

[00:15:57] Speaker 00:
and such, they have to get the content from somewhere.

[00:16:01] Speaker 00:
That would be obvious.

[00:16:02] Speaker 00:
Because the only argument about that is that this is somehow actually an inherency issue.

[00:16:07] Speaker 00:
But that argument doesn't really follow.

[00:16:10] Speaker 00:
And I didn't really hear my colleague addressing that significantly today.

[00:16:14] Speaker 00:
His main focus was on the broadband limitation, which affects, as I said earlier, claims four and 26.

[00:16:20] Speaker 00:
And the only challenge that they've made to the board's finding that those two claims are obvious

[00:16:26] Speaker 00:
is to argue that the board somehow changed theories from institution to the final written decision.

[00:16:32] Speaker 00:
But the fact is nothing changed.

[00:16:35] Speaker 00:
We didn't argue in herency.

[00:16:37] Speaker 00:
We argued in our petition that RFC 2401, in combination with Beezer, rendered those claims obvious.

[00:16:45] Speaker 00:
And we relied in our petition on paragraph 80 of Professor Tomasia's declaration to explain why the use of a cable modem on a cable network

[00:16:55] Speaker 00:
was a broadband connection.

[00:16:58] Speaker 00:
It was vernetics that argued, well, this was necessarily an inherency argument.

[00:17:03] Speaker 00:
And vernetics that injected the idea that this was about inherency into the case.

[00:17:08] Speaker 03:
They didn't say that you changed theories.

[00:17:11] Speaker 03:
They said the board changed theories.

[00:17:13] Speaker 00:
I understand that, Judge Newman.

[00:17:15] Speaker 00:
And my point was only to say that what the board ultimately did is exactly what we asked the board to do in our petition.

[00:17:24] Speaker 00:
We made the same argument consistently in our petition, in our reply, and it's what the board instituted on the same references, Beezer, RFC 2401, and relying on our arguments about paragraph 80 of Professor Tomasia, and that's what the board relied on in its final written decision.

[00:17:42] Speaker 00:
What the board did in its final written decision was walk through the very argument that we had made in our petition, relying on the Beezer disclosure,

[00:17:50] Speaker 00:
relying on the reasoning in Professor Tomasia's declaration, paragraph 80, the same thing that we relied on our petition, the same thing the board relied on at institution.

[00:18:00] Speaker 00:
And it walked through it, did its analysis, and concluded, at the end of its analysis, it said none of this requires an inherency.

[00:18:08] Speaker 00:
And that's not a change.

[00:18:09] Speaker 00:
What Vernetix is really arguing about is semantics.

[00:18:12] Speaker 00:
The teaching at issue, the disclosure of using a cable modem with a high-speed cable network,

[00:18:19] Speaker 00:
is all in the single reference of Beezer.

[00:18:22] Speaker 00:
And at both institution and the final written decision, the board relied on one paragraph in particular, paragraph 80 of Professor Tomasia, regarding what that reference teaches a person of ordinary skill in the art.

[00:18:34] Speaker 00:
And whether you label that inherency or not in the context of what is an obviousness determination is ultimately beside the point.

[00:18:42] Speaker 00:
This case, I think, is really indistinguishable from the Genzyme case

[00:18:47] Speaker 00:
where the court observed, quote, the board's final written decisions were based on the same combinations of references that were set forth in its institution decisions.

[00:18:57] Speaker 00:
And as Genzyme held, quote, there was no requirement for the institution decision to set forth every legal or factual issue that might arise.

[00:19:03] Speaker 00:
That's page 1366 of that opinion.

[00:19:06] Speaker 00:
And that's exactly what's gone on here.

[00:19:08] Speaker 00:
The board relied on the same evidence, the same argument,

[00:19:11] Speaker 00:
And it ultimately agreed with our argument and simply, at the end of the day, rejected Vernettix's attempt to characterize that as being an inherency issue.

[00:19:19] Speaker 00:
There's certainly no question that Vernettix had notice as of what the issue was because the arguments that we made and that the board relied on at both stages never changed.

[00:19:32] Speaker 00:
And to use an analogy from patent practice, certainly

[00:19:37] Speaker 00:
Certainly, the thrust of the argument, if you're thinking about this and analogizing to whether there was a new ground of decision, certainly the thrust of the argument never changed.

[00:19:47] Speaker 02:
Was Beasley cited in the Patent Office?

[00:19:54] Speaker 02:
Was it among the 70 columns of references which the applicant presented?

[00:20:00] Speaker 00:
Judge Laurie, I don't know for certain off the top of my head if it was, but I suspect that it was given the number of references that were identified by the time that these five patents were issued.

[00:20:14] Speaker 00:
I'm sure that it would have been hard to identify among the many references, but I'm not sure, but I believe it probably was given the history here.

[00:20:25] Speaker 00:
I'm happy to answer questions if the court has them with respect to the remaining issues going to the direct limitation or Aventale.

[00:20:32] Speaker 00:
Suffice it to say, I think that the board is certainly entitled to conclude that there was no clear and unambiguous disclaimer when it couldn't get a straight answer from frenetics as to what was purportedly in and what is purportedly out in terms of direct and indirect limitations.

[00:20:50] Speaker 00:
And of course, the board had before it a more

[00:20:52] Speaker 00:
a significant record of the history of these proceedings, including proceedings and re-exams in which Fernetix itself had argued that it had not done any sort of disclaimer.

[00:21:05] Speaker 00:
But as I said at the outset, the court need not reach any of those issues if it agrees with us with respect to the six limitations under Beezer, because if it does, then Aventale is simply beside the point.

[00:21:19] Speaker 03:
On the theory that there was a disclaimer,

[00:21:22] Speaker 03:
and that all things considered, it should have been considered.

[00:21:27] Speaker 03:
Where does that leave us?

[00:21:29] Speaker 03:
I'm thinking of, again, was the alternative argument presented?

[00:21:34] Speaker 00:
So Judge Newman, if you were to think that there had been a disclaimer that should be enforced despite Vernettix's inability to explain to the board and its inconsistent positions,

[00:21:50] Speaker 00:
in litigation and in front of the board, in front of the patent office.

[00:21:54] Speaker 00:
But if you were to think that there were a disclaimer and that the word direct should be read in, first, there is the alternative argument that Aventale itself discloses direct communications.

[00:22:07] Speaker 00:
Second, the arguments relying on the Beezer reference, of course, are entirely independent of this.

[00:22:15] Speaker 00:
And so with respect to the Beezer reference,

[00:22:18] Speaker 00:
If you agree with us with respect to the six claim limitations, then that would be dispositive and it wouldn't matter what the claim construction was because the claim construction was not at issue in the proceedings that involve the Beezer reference.

[00:22:34] Speaker 00:
Even if you disagreed with respect to the six, it wouldn't matter as to all the other claims that would remain invalidated by Beezer.

[00:22:41] Speaker 00:
So they're really, with respect to this direct issue,

[00:22:44] Speaker 00:
Judge Newman, there are really two different sets of alternative arguments.

[00:22:48] Speaker 00:
The first is that Aventale itself discloses direct communication for the reason that the board explained that whatever vernetics may have said to the Patent Office years ago, that has proved to be inconsistent with its litigating positions and what it argued was direct communication found to be infringing in the Cisco case.

[00:23:09] Speaker 00:
And the board, on the record in front of it,

[00:23:12] Speaker 00:
concluded on that record that Aventale did disclose direct communications.

[00:23:16] Speaker 00:
That's one alternative argument.

[00:23:18] Speaker 00:
And then the other alternative argument, of course, is that these claims are all invalid under Beezer.

[00:23:24] Speaker 00:
And the proceedings that involved Beezer and that invalidated all of these claims under Beezer do not involve this claim construction issue at all.

[00:23:33] Speaker 00:
So there are essentially two alternative arguments that do not implicate the alleged disclaimer.

[00:23:42] Speaker 00:
If the court has further questions on any of these issues, I'm happy to take them.

[00:23:47] Speaker 00:
Otherwise, I'll yield back the balance of my time.

[00:23:49] Speaker 03:
Any further questions?

[00:23:53] Speaker 03:
I think we're all right.

[00:23:54] Speaker 03:
Thank you, Mr. Oakley.

[00:23:55] Speaker 00:
Thank you, Judge Newman.

[00:24:03] Speaker 03:
Mr. Timofee.

[00:24:06] Speaker 01:
On the print publication, very briefly,

[00:24:10] Speaker 01:
With respect to the evidence by Apple's expert, again, he only testified that he read the RFC publications.

[00:24:16] Speaker 01:
He discussed them.

[00:24:17] Speaker 01:
He never testified that he had familiarity with the publishing process.

[00:24:20] Speaker 01:
So there was no testimony from him that he actually knew how the Internet Society Task Force assigned those dates and what the date on the cover meant.

[00:24:31] Speaker 01:
RFC 2026, as I already mentioned, does not say anything about the date that appears on the cover of the RFC.

[00:24:37] Speaker 01:
And as my colleague mentioned, what's striking is that he actually emphasizes the evidence that the board said they did not need to consider, the Ginoza evidence.

[00:24:46] Speaker 01:
So again, our position is that this court really should not countenance the board shirking the evidential requirements.

[00:24:53] Speaker 01:
If there is indeed this highly probative evidence, as my colleague argues, that the date can be established and the public dissemination as of November 1998 can be established, then this court should remand to the board so it can consider whether that evidence is admissible.

[00:25:06] Speaker 01:
and whether, indeed, that evidence is as strong as Appalachia.

[00:25:11] Speaker 01:
Turning to the questions of inherency in DASR, with respect to the question of the server limitation, I think, actually, that the issue is, I spoke about it very briefly only because, in our view, it's fairly clear.

[00:25:22] Speaker 01:
The court only needs to look at what was the supporting evidence before the board that the disclosure

[00:25:30] Speaker 01:
originating device being a WebTV or similar device necessarily means the terminating device must be a server.

[00:25:37] Speaker 01:
And that evidence was on appendix page 6675, it's paragraph 289 of a declaration of Apple's expert.

[00:25:45] Speaker 01:
And that declaration simply says that the WebTVs and similar devices could be used to connect to a server.

[00:25:53] Speaker 01:
There was no evidence that indeed those devices would necessarily connect to a server.

[00:25:58] Speaker 01:
So the board made an inferential leap that is not supported by the evidence.

[00:26:03] Speaker 01:
That is with respect to the argument concerning the server limitation investment.

[00:26:07] Speaker 01:
With respect to the argument about the broadband, the reason that Apple actually argued inherency, because if the court looks on page, just a second, if the actually court looks

[00:26:28] Speaker 01:
On page J49, in the 810 proceeding, the board itself clearly said that the 705 patent required that there be separate channel in the modulated link in order for the broadband communication to be met.

[00:26:42] Speaker 01:
There is no testimony that, in fact, the Beza disclosed those separate channels.

[00:26:48] Speaker 01:
If this court looks at Appendix 6584, paragraph 80 of Dr. Tomasi's declaration, he only testifies

[00:26:55] Speaker 01:
that there were modulated signals in BASA.

[00:27:00] Speaker 01:
Therefore, there was no testimony about BASA disclosing the separate channels.

[00:27:04] Speaker 01:
That's why the word applied in herency.

[00:27:06] Speaker 01:
When the board changed disclaimed in herency, which is what Apple argues, and you can see it on page appendix 1229, Apple argues that used the word necessarily to describe the in herency argument.

[00:27:18] Speaker 01:
Once the board described in herency, there was really no evidence to support the obviousness finding because that obviousness finding depended on in herency.

[00:27:26] Speaker 01:
On Eventail, we think irrespective of the differences in the record, there was a clear disclaimer that Apple itself has described as a clear mandate and that it's successfully enforced.

[00:27:37] Speaker 01:
So we think that there is that disclaimer that very prior to the issue in this in this proceeding should govern.

[00:27:43] Speaker 01:
Very quickly to respond to Judge Lurie's earlier question, actually one of the reasons that Burnettics listed 70 references because it included references that Apple and other defendants in a parallel

[00:27:55] Speaker 01:
district court infringement proceedings, and also now the IPR reexamination proceedings have raised.

[00:28:03] Speaker 01:
So that's one of the reasons for such a large number.

[00:28:06] Speaker 01:
Unless there are any other questions, my time expires.

[00:28:09] Speaker 03:
Any questions?

[00:28:11] Speaker 03:
Thank you.

[00:28:11] Speaker 03:
Thank you both.

[00:28:12] Speaker 03:
The case is taken under submission.