[00:00:00] Speaker 06:
We have four RU cases this morning.

[00:00:06] Speaker 06:
First of these is WhatsApp, Inc.

[00:00:09] Speaker 06:
versus Triplay Inc.

[00:00:11] Speaker 06:
Ms.

[00:00:12] Speaker 06:
Keith, is that how you pronounce it?

[00:00:21] Speaker 00:
Yes, Your Honor.

[00:00:22] Speaker 00:
Good morning, Your Honors.

[00:00:23] Speaker 00:
If it please the Court, this appeal presents a very narrow issue.

[00:00:28] Speaker 00:
Did the patent board below err in finding no motivation to combine a reference regarding adapting?

[00:00:36] Speaker 05:
I have a number of questions for you.

[00:00:38] Speaker 05:
Please.

[00:00:39] Speaker 05:
You state on page two of the blue brief that in terms of providing a realistic experience, everyone knows that videos beat photos hands down.

[00:00:50] Speaker 05:
You don't sign anything, you just say that.

[00:00:52] Speaker 05:
Have you ever looked at a photo by Yosef Karsh or Dorothea Lange?

[00:00:57] Speaker 00:
Yes, Your Honor, I have.

[00:00:57] Speaker 05:
Okay.

[00:00:58] Speaker 05:
What's your record source for that statement?

[00:01:01] Speaker 00:
The record source for that particular statement, Your Honor?

[00:01:04] Speaker 00:
That statement is argument which is supported by the record source with Mr. Klausner's evidence.

[00:01:10] Speaker 00:
Mr. Klausner is the expert down below.

[00:01:13] Speaker 00:
And Mr. Klausner in the record established that one of ordinary skill in the art would recognize that a video can provide a more, can, not must, can provide a more powerful message

[00:01:28] Speaker 05:
Then all of the statements you have in that brief are unsupported.

[00:01:32] Speaker 05:
You say on page 20 of the blue brief, the board, that is IPR, found the challenge claims patentable based on the startling assertion that a person of ordinary skill would not have known that video is a more compelling and engaging medium than text or still photos.

[00:01:51] Speaker 05:
Startling to whom?

[00:01:53] Speaker 05:
Again, Your Honor.

[00:01:54] Speaker 00:
Again, Your Honor, it was our expert.

[00:01:56] Speaker 05:
It's also... Where did your expert say it was startling?

[00:01:58] Speaker 00:
He did not use the word startling, Your Honor.

[00:02:01] Speaker 05:
You state on page 22, it does not take a person of ordinary skill in the art to understand this motivation.

[00:02:09] Speaker 05:
If a picture is worth a thousand words, then a video is worth at least a million.

[00:02:14] Speaker 05:
And you cite some case, a couple of cases.

[00:02:18] Speaker 05:
Those two cases discuss video in the context of police officers executing arrest.

[00:02:24] Speaker 00:
That's correct, Your Honor.

[00:02:25] Speaker 05:
They're non-binding cases.

[00:02:27] Speaker 05:
Why should we extend them to our common sense analysis here?

[00:02:33] Speaker 05:
A picture is worth a thousand words, you say.

[00:02:36] Speaker 05:
So because I could not stop for death, he kindly stopped for me.

[00:02:43] Speaker 05:
The last line of a farewell to arms, it was still raining.

[00:02:46] Speaker 05:
The last line of tilt of two cities, it is a far, far better thing I do.

[00:02:52] Speaker 05:
Now you tell me,

[00:02:53] Speaker 05:
that that's worth more than a video.

[00:02:56] Speaker 00:
Your honor, there is a reason, though, to combine video and art.

[00:03:00] Speaker 00:
I understand your honor's perspective, and yes, there may be times when a video is more, sorry, a picture itself may be more moving, a wedding photo may be more compelling in an individual instance than a video.

[00:03:12] Speaker 00:
However, not only does the record indicate that Mr. Klausner, one of ordinary skill in the art, a skill in the art that

[00:03:19] Speaker 00:
was agreed to be one of computer with a degree in computer science or electrical engineering with experience in messaging technology and video layout.

[00:03:30] Speaker 00:
And so this is someone who understands how video works with messaging.

[00:03:34] Speaker 00:
That's the skill that we're looking at here.

[00:03:40] Speaker 04:
Tell me if this is wrong or right.

[00:03:42] Speaker 04:
You don't need the proposition that video is for everybody always more powerful.

[00:03:49] Speaker 00:
No, Your Honor.

[00:03:50] Speaker 04:
All you need is the proposition that for many people and for many purposes, video is enough more powerful that somebody of skill in the art would want to add that to the repertoire.

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

[00:04:03] Speaker 00:
And in fact, that is something that Dr. Sirati, the expert for the opposing party,

[00:04:09] Speaker 00:
actually admitted during his deposition.

[00:04:11] Speaker 00:
During his deposition, he admitted that MMS, which is multimedia messaging, was more powerful than text because of its ability to include multimedia.

[00:04:22] Speaker 04:
The other thing that we did show, and that the record... At least as I understand it, part of the problem I think is that it feels like an overstatement to say it is more powerful.

[00:04:34] Speaker 04:
We're talking about a motivation to add video to other kinds of messages because there would obviously be a market for that.

[00:04:44] Speaker 00:
That's correct, Your Honor.

[00:04:45] Speaker 00:
And in fact, the record also includes those motivations which were attached to Mr. Klausner's

[00:04:51] Speaker 00:
reply declaration.

[00:04:53] Speaker 06:
Some of the advertising by the industry saying that people want video.

[00:04:58] Speaker 00:
That's exactly correct, Your Honor.

[00:04:59] Speaker 00:
At appendix site 975, the quote actually is, taking photos with mobile phones is so last year.

[00:05:07] Speaker 00:
The excitement is video.

[00:05:10] Speaker 00:
And in exhibit appendix site 982, the quote is, consumers today want more news on the fly, two-way communications

[00:05:20] Speaker 00:
full text stories, picture displays, and, increasingly, video.

[00:05:25] Speaker 05:
So the industry... You say on page one of the Grey Breed, Triplay all but concedes that this straightforward motivational combined would have required nothing more than an exercise of common sense.

[00:05:39] Speaker 05:
Where exactly in the record do they all but concede it?

[00:05:42] Speaker 00:
I think, Your Honor, they're conceding it by not contesting it.

[00:05:46] Speaker 00:
There's nowhere in their brief where they contest that the industry was moving toward video.

[00:05:51] Speaker 00:
Nowhere in their brief do they contest that video can be more powerful than a still image.

[00:05:57] Speaker 00:
And so by not contesting those fundamental facts which give us a motivation to combine, they are in essence conceding it and instead switching to a secondary argument which was not in the final written decision by the board.

[00:06:12] Speaker 00:
trying to argue something akin to a teaching away because of one of the paragraphs in the Cologne reference.

[00:06:20] Speaker 05:
You're walking away based on my brethren's question.

[00:06:25] Speaker 05:
You're walking away from all the absolutes you argued, aren't you?

[00:06:28] Speaker 05:
Your Honor, I think the absolutes... You used the word can be.

[00:06:31] Speaker 05:
Words can be in your argument just now.

[00:06:34] Speaker 00:
I did, Your Honor.

[00:06:35] Speaker 00:
Your Honor, in terms of am I walking away from absolutes,

[00:06:38] Speaker 00:
I personally still believe that they're true, and I believe that what our experts said in his declaration, which in and of itself is evidence, since he is one of ordinary skill in the art, indicating that video is more powerful for conveying a message, a more powerful message.

[00:06:55] Speaker 00:
But I understand both your and Judge Toronto's question, and therefore, at a minimum, it can be, and that in and of itself is a motivation, provides the motivation to combine.

[00:07:07] Speaker 06:
the board anyway that it's not a powerful message.

[00:07:10] Speaker 00:
That's absolutely correct, Your Honor.

[00:07:11] Speaker 00:
And that's one of the reasons that the board's decision is so confusing to me and confounding.

[00:07:17] Speaker 00:
They simply say that the sentence uttered by Mr. Klausner in his declaration is not enough.

[00:07:24] Speaker 00:
And they focus on the words, it is self-evident.

[00:07:28] Speaker 00:
They ignore the fact that the very next portion of Mr. Klausner's statement

[00:07:33] Speaker 00:
says that the reason that it is self-evident is because it can, or in his sense did, provide a more powerful message.

[00:07:45] Speaker 00:
In the case law that this court has held in regards to the in-ray nuvasive case and the cases that are cited therein, this court has held that the definition doesn't have to be long.

[00:07:58] Speaker 00:
Brevity is not necessarily a problem for

[00:08:02] Speaker 00:
listing what the motivation to combine would be based on.

[00:08:05] Speaker 00:
In fact, in the Nike case, it was simply to minimize waste.

[00:08:10] Speaker 00:
And in the allied case, it was to have a greater range of motion.

[00:08:14] Speaker 00:
Something as simple as that could be and provide the motivation to combine.

[00:08:19] Speaker 00:
As here, the why is because you want a more powerful message.

[00:08:25] Speaker 00:
That's exactly what Mr. Klausner said.

[00:08:26] Speaker 00:
That was enough.

[00:08:28] Speaker 00:
But the reply declaration, which the board said

[00:08:31] Speaker 00:
It considered the entire record but never once cited to the reply declaration which cites to the articles from the time period contemporaneously indicating that the market was moving to putting video into messages, putting video onto phones, not just still images.

[00:08:51] Speaker 00:
That alone is substantial evidence of a motivation.

[00:08:56] Speaker 06:
I'm sorry?

[00:08:56] Speaker 06:
Because of consumer demand.

[00:08:58] Speaker 00:
That's correct, Judge Schneik.

[00:08:59] Speaker 00:
It is because of consumer demand, but we know from the case law that the technology can motivate, a move in technology can itself motivate a motivation to combine.

[00:09:11] Speaker 00:
And that if that is referenced, that can support a motivation to combine, as I believe it did here.

[00:09:18] Speaker 00:
One of the cases I think that's most illustrative to that is the Dicestar versus C.H.

[00:09:23] Speaker 00:
Patrick case.

[00:09:24] Speaker 00:
that says that the technology alone may dictate a change, and common knowledge of the technology and the change in technology of one of ordinary skill must be considered as part of that motivation.

[00:09:38] Speaker 04:
Can you remind me, what is Dr. Klausner's expertise, what's his field?

[00:09:47] Speaker 00:
So Mr. Klausner is in his declaration.

[00:09:50] Speaker 00:
Mr. Klausner goes on at length about sure.

[00:09:53] Speaker 04:
I have the qualifications part of the declaration.

[00:09:57] Speaker 00:
Okay.

[00:09:57] Speaker 00:
Mr. Klausner was a computer scientist who worked with systems, messaging systems, both messaging systems for conveying video as well as text.

[00:10:06] Speaker 00:
He actually built those systems.

[00:10:08] Speaker 00:
and has been testifying in this area for a long time.

[00:10:11] Speaker 04:
What in that expertise would qualify him to testify about a recipient's sense of power?

[00:10:20] Speaker 00:
Well, again, one of ordinary skill in the art who understands video layout and how videos work with messaging would understand why you would want to put a video into the message.

[00:10:31] Speaker 00:
You don't turn off your common sense.

[00:10:33] Speaker 00:
This is like the KSR analysis.

[00:10:35] Speaker 00:
Right.

[00:10:35] Speaker 04:
I guess I asked the question because I'm trying to figure out whether your case, whether Klausener's sentence or paragraph adds anything to what your case would be simply by relying on common sense from common knowledge, even if Klausener had not testified.

[00:10:53] Speaker 00:
I think it does add to it, Your Honor, only in the sense that it helps you understand that one who actually does this all day, every day,

[00:11:00] Speaker 00:
also agrees that video is more powerful than still and therefore he would sometimes and then he would be on dangerous ground when you say common sense and I'm not saying common sense in the way that the case law tells us not to use common sense to replace a limitation here all of the limitations unrefutedly are in the combination of the prior art the only place we're looking to common sense and common knowledge

[00:11:29] Speaker 00:
as the Distar case describes and as KSR describes, is to understand what the motivation would be.

[00:11:35] Speaker 06:
Yeah, I think if you put it differently, instead of saying it would be there, it would be common sense to combine it because it's more powerful, it's much simpler than that.

[00:11:46] Speaker 06:
It's common sense to do it because there's a demand for it.

[00:11:50] Speaker 06:
People want that.

[00:11:52] Speaker 00:
And Your Honor, that is part of the record below that was not involved, that the boards did not cite whatsoever and seems to have ignored.

[00:12:00] Speaker 00:
That actually is in the record.

[00:12:02] Speaker 00:
It's cited by Mr. Klausner as evidence.

[00:12:04] Speaker 00:
And Your Honors have seen the evidence from the consumers saying this is what consumers want and this is what people want.

[00:12:11] Speaker 00:
And that alone is another part of the motivation to combine.

[00:12:14] Speaker 00:
And I stand into my time for rebuttal.

[00:12:16] Speaker 00:
Unless you have further questions, I'll come back up.

[00:12:19] Speaker 06:
You can save your rebuttal.

[00:12:20] Speaker 00:
Thank you, Your Honors.

[00:12:31] Speaker 06:
Mr. Nicodema?

[00:12:33] Speaker 06:
Good afternoon, Your Honors.

[00:12:34] Speaker 06:
Please support.

[00:12:36] Speaker 06:
This seems like a very odd decision by the board.

[00:12:39] Speaker 06:
It seems to be quite rigid and seems to ignore parts of the record as well as ordinary common sense.

[00:12:48] Speaker 06:
I mean, video is popular with people, you know, and there's evidence at the record that it's popular with people.

[00:12:57] Speaker 06:
Why isn't that enough?

[00:12:58] Speaker 02:
Well, Your Honor, I respectfully disagree that it's an odd decision.

[00:13:04] Speaker 05:
Would you disagree with this statement?

[00:13:10] Speaker 05:
In the United States, in 2018, cat videos are more popular than Emily Dickinson.

[00:13:18] Speaker 02:
It depends on who you ask the question to.

[00:13:19] Speaker 05:
I'm asking you.

[00:13:21] Speaker 02:
Since I haven't read too much of Emily Dickinson, I can't agree with you.

[00:13:28] Speaker 02:
I think, as Your Honor said, and I was thinking about this myself before today, there are many instances where there are, in history and sports, in showing photographs of natural phenomenon where a picture is much more expressive.

[00:13:42] Speaker 06:
Well, that may be, but that's not the issue.

[00:13:44] Speaker 06:
The question is whether people value video.

[00:13:48] Speaker 06:
Isn't it?

[00:13:51] Speaker 06:
This record says that they do, and it's perfectly obvious as a matter of common sense that people do value video.

[00:13:57] Speaker 02:
Well, Your Honor, I think we need to go back to the board's decision, which you premised was odd.

[00:14:03] Speaker 02:
I don't think it's odd because they looked at four things.

[00:14:07] Speaker 02:
They went through a six-page analysis.

[00:14:09] Speaker 06:
Okay, but I'm asking you, isn't it perfectly obvious that people value video?

[00:14:16] Speaker 02:
People value video in some context, but the question is, in the context

[00:14:20] Speaker 02:
of this technology, of this art, and the fact that the Colombo reference already had video, what would motivate it?

[00:14:27] Speaker 06:
Well, it did not have video.

[00:14:29] Speaker 02:
It had a feature of streaming video, which is different than the kind of video we're talking about here.

[00:14:35] Speaker 02:
Well, it had video streaming.

[00:14:36] Speaker 02:
It had a two-part system.

[00:14:39] Speaker 02:
It had session-based communications that had video streaming.

[00:14:42] Speaker 02:
It had non-session-based communications, which did not.

[00:14:50] Speaker 04:
So the question is... There were two things that were different.

[00:14:53] Speaker 04:
One, that it was streaming only, not an object that could be attached to a message and therefore received by the recipient.

[00:15:02] Speaker 04:
And second, it didn't have the format adaptation feature for video to make sure that the recipient's device would get the object in a way that the recipient's device could display from.

[00:15:18] Speaker 02:
Well, for the video streaming, Your Honor,

[00:15:20] Speaker 02:
The Cologne system did have that adaptation, and if you would permit me, Mr. Klausner testified to that at his deposition.

[00:15:30] Speaker 06:
Well, there's no finding by the board that there would be no motivation to combine because Cologne already had the video feature, right?

[00:15:40] Speaker 02:
Well, what the board... That is correct, isn't it?

[00:15:43] Speaker 02:
I disagree, Your Honor.

[00:15:44] Speaker 02:
What the board did at pages 20 and 21 of the decision

[00:15:51] Speaker 02:
That's appendix pages A, 20 and 21.

[00:15:54] Speaker 02:
Right at the bottom.

[00:16:00] Speaker 02:
The petitioner at the bottom of 20.

[00:16:02] Speaker 02:
The petitioner came up with this teaching away argument for the first time in their reply.

[00:16:08] Speaker 02:
And they said that the video streaming technology disclosed in Cologne would not be applicable to non-session based communications, instant messaging, if you will.

[00:16:22] Speaker 02:
And that's where they say, at the bottom of page 20, petitioner search cologne discourages the use of SIP proxies to transcode video content, and it goes on.

[00:16:32] Speaker 02:
They mention paragraph 69, which mentions the use of existing SIP proxies to transcode video content, but the petitioner said it actively discourages their use in the messaging system, which the petitioner says is the instant messaging port.

[00:16:49] Speaker 02:
So the board went on to say,

[00:16:52] Speaker 02:
If you're going to do that, if you're going to make those arguments about defects in the Cologne system, which has a form of video in it, you have to do more than just say putting a video object from the Bellagere system into the Cologne system would be self-evident in common sense.

[00:17:13] Speaker 02:
Because the video object is something different

[00:17:19] Speaker 02:
from the video streaming.

[00:17:21] Speaker 02:
So if Colom already had a form of video, why would he need or want another form of video?

[00:17:27] Speaker 06:
Because it's a different thing.

[00:17:29] Speaker 02:
It's part of the same system, you know.

[00:17:31] Speaker 05:
Do you disagree that streaming video and a video object are two different things?

[00:17:36] Speaker 02:
They are different.

[00:17:38] Speaker 02:
They are different.

[00:17:39] Speaker 02:
And when that question was addressed to Triplace Council at the final hearing of the board,

[00:17:46] Speaker 02:
He explained why they were different, and that's part of the appendix.

[00:17:50] Speaker 02:
But the board also, if you go from the beginning to the end of the board's decision, first they said, you haven't explained why videos can be a more powerful message than still photos.

[00:18:06] Speaker 02:
You haven't even explained what more powerful means.

[00:18:09] Speaker 02:
step one.

[00:18:10] Speaker 02:
That's what they did.

[00:18:11] Speaker 02:
Then they said, even if you assume the premise, even if you assume that videos is more powerful than still photos, why would that evidence the common sense of the person of ordinary skill in the art?

[00:18:25] Speaker 02:
They didn't answer that question.

[00:18:26] Speaker 02:
They said it's just self-evident.

[00:18:27] Speaker 02:
So they presumed that which is self-evident need not be explained

[00:18:32] Speaker 02:
And that's not what the case is saying.

[00:18:33] Speaker 02:
You still have to have evidence.

[00:18:35] Speaker 02:
They have evidence that consumers like video, right?

[00:18:39] Speaker 02:
The evidence that they cited, it's in Mr. Klausner's reply declaration.

[00:18:43] Speaker 02:
He has a string site of 2005 articles.

[00:18:46] Speaker 02:
That goes to the issue.

[00:18:48] Speaker 02:
He was responding to Dr. Serrati's statement that there will be technological barriers to combining Bellagio and he cited those.

[00:18:59] Speaker 02:
for that purpose.

[00:19:00] Speaker 02:
And the board addressed that.

[00:19:02] Speaker 02:
Did they cite, did they say, here are the 2005 articles specifically?

[00:19:06] Speaker 02:
No.

[00:19:07] Speaker 02:
But they addressed it at page 21 of their decision where they said, WhatsApp argues that it would be technologically trivial to combine the references.

[00:19:17] Speaker 02:
And the board said, that's not the question.

[00:19:19] Speaker 02:
The question is not, could they be combined?

[00:19:21] Speaker 02:
The question is, would a person of ordinary skill in New York combine them and why?

[00:19:25] Speaker 02:
And that's the problem the board had.

[00:19:27] Speaker 02:
They never got an answer to that question other than Klausner saying it's self-evident and if I have to give you any more of an explanation, it ignores common sense.

[00:19:37] Speaker 02:
That's why the motivation to combine was not supported by reasoned analysis and evidentiary support.

[00:19:43] Speaker 02:
And that's the burden.

[00:19:44] Speaker 02:
that they had to meet and they didn't meet it.

[00:19:47] Speaker 04:
Can I ask you this question?

[00:19:48] Speaker 02:
Yes, sir.

[00:19:48] Speaker 04:
Take as a premise the following, which you quite vigorously disagree with, but take as a premise that I think that what Klausener and Common Sense and the evidence of commercial carriers offering video at the time establish that there was a significant consumer demand for video that would accompany messages.

[00:20:14] Speaker 04:
Is there a reason to remand, or would we just reverse outright?

[00:20:19] Speaker 02:
If you found that there was a motivation, basically, you would still have to remand.

[00:20:24] Speaker 02:
And the reason is, Your Honor, pages 8 and 9, footnote 3, of Tri-Place Brief, there are other arguments we made about obviousness and motivation to combine in connection with other claim elements that were not addressed by the Board.

[00:20:40] Speaker 02:
So this is not a

[00:20:43] Speaker 02:
situation.

[00:20:44] Speaker 03:
There's work to be done.

[00:20:44] Speaker 02:
There's work to be done.

[00:20:46] Speaker 02:
There's work to be done, Your Honor.

[00:20:49] Speaker 02:
And the last point I wanted to make about what the Board did is... Where do we find that reference that you just told us about?

[00:20:59] Speaker 02:
I'm sorry, Your Honor.

[00:21:00] Speaker 02:
Where is the reference to the other... Tri-Place brief, pages eight and nine.

[00:21:04] Speaker 06:
Footnote seven.

[00:21:05] Speaker 02:
Footnote.

[00:21:06] Speaker 02:
It's footnote

[00:21:07] Speaker 02:
Did I say footnote three?

[00:21:09] Speaker 02:
Footnote three that bridges pages eight and nine of tribe place brief.

[00:21:12] Speaker 02:
Those are the other things that the board did not address.

[00:21:19] Speaker 02:
And the one point I wanted to make about Dr. Serati that council said he admitted the premise, the premise that video is more powerful, can be more powerful,

[00:21:32] Speaker 02:
I ask Your Honors to look at appendix page 957, which is the testimony in question.

[00:21:39] Speaker 02:
He didn't say that.

[00:21:41] Speaker 02:
This is what he was asked and this is what he testified.

[00:21:46] Speaker 02:
Starting page 48, line 8.

[00:21:49] Speaker 02:
Okay, so if you turn to page 1, paragraph 4, this is a patent application with no column or line numbers answered.

[00:21:55] Speaker 02:
Page 1, paragraph 4.

[00:21:57] Speaker 02:
Question.

[00:21:59] Speaker 02:
It refers to multimedia

[00:22:01] Speaker 02:
Message service MMS, answer yes.

[00:22:04] Speaker 02:
Question, is that a service that many would associate with text messages using phones?

[00:22:10] Speaker 02:
Answer, it is probably a superset of it.

[00:22:12] Speaker 02:
Question, right, so if you have MMS and another one is known as SMS, correct, answer correct, and here's the question.

[00:22:22] Speaker 02:
MMS is more powerful because you could actually include multimedia content with the message, correct, answer?

[00:22:29] Speaker 02:
I think it is fair to say.

[00:22:31] Speaker 02:
Now SMS is text messaging, MMS is a multimedia service type of messaging.

[00:22:36] Speaker 02:
He wasn't saying, oh, videos is better or more expressive or more powerful than photos.

[00:22:42] Speaker 02:
That would be the common sense of one's skill in the art.

[00:22:44] Speaker 02:
He didn't say that at all.

[00:22:46] Speaker 02:
He said what he said.

[00:22:47] Speaker 02:
The question was, can it be more powerful because it can include multimedia content, which includes photos?

[00:22:53] Speaker 02:
And he said, I think it's fair to say.

[00:22:57] Speaker 02:
The last point I'd like to make, Your Honor,

[00:23:04] Speaker 02:
Reasoned analysis and evidentiary support has to be more than saying something is self-evident, has to be more than saying something is mere common sense.

[00:23:14] Speaker 02:
And for an expert to come into court and say, if I have to explain anything more to you than just saying it's self-evident, that would defy common sense.

[00:23:24] Speaker 02:
That's not what the cases of this court hold.

[00:23:26] Speaker 02:
You have to have a reasoned analysis and evidentiary support and saying something is more powerful

[00:23:32] Speaker 02:
without, as the board said, considering the art at issue, the underlying technology.

[00:23:37] Speaker 02:
And the references is not sufficient.

[00:23:41] Speaker 05:
Well, and also the question is, what does powerful mean?

[00:23:44] Speaker 02:
That's right.

[00:23:44] Speaker 02:
Here's what the board said.

[00:23:46] Speaker 02:
The first part of their analysis, Judge, rather, Petitioner and Mr. Klausner concludes this is to be true without providing any explanation

[00:23:57] Speaker 02:
as to why video is more powerful, or at a minimum, what more powerful means than the context of the field of the technology and art at issue.

[00:24:06] Speaker 02:
Petitioner presumes that which is self-evident need not be explained.

[00:24:11] Speaker 02:
However, this is not the standard by which obviousness is shown.

[00:24:14] Speaker 02:
Indeed, assumptions about common sense cannot substitute for evidence thereof, which they did not have.

[00:24:21] Speaker 05:
I'm disturbed that counsel defending the deposition didn't object for ambiguity.

[00:24:27] Speaker 05:
at that point because a witness may understand that it's technologically powerful ability to transmit more information on a fit-by-fit basis or anything.

[00:24:41] Speaker 05:
I don't know what powerful means in that context.

[00:24:43] Speaker 02:
And that was never provided by Mr. Klausner.

[00:24:48] Speaker 06:
All right.

[00:24:48] Speaker 06:
Thank you, Mr. Chairman.

[00:24:49] Speaker 02:
Thank you, Your Honor.

[00:24:52] Speaker 06:
Ms.

[00:24:52] Speaker 06:
Keith, you have three minutes.

[00:25:00] Speaker 05:
Ms.

[00:25:00] Speaker 05:
Keith, let me take you right back to where we were, which is, I'm also disturbed by the question, because it's ambiguous.

[00:25:09] Speaker 05:
What is powerful in that context?

[00:25:11] Speaker 00:
Well, and Your Honor, he could have asked if he didn't understand what powerful meant, but these are ordinarily skilled people.

[00:25:16] Speaker 00:
He understood to him... He understood what?

[00:25:19] Speaker 05:
He understood that it had... That you were talking about the technology and more bits per second?

[00:25:23] Speaker 00:
He understood that it would be more powerful to the person receiving it.

[00:25:27] Speaker 05:
That's not the question.

[00:25:28] Speaker 00:
then, Your Honor, I don't know how to tell you what he meant in his mind, but the statement is evidence in the record that both parties considered multimedia to be more powerful.

[00:25:38] Speaker 00:
Dr. Cerati said it.

[00:25:40] Speaker 00:
So did Mr. Klausner.

[00:25:41] Speaker 00:
And we're ignoring the fact, even if we go beyond that, what Mr. Klausner said at paragraph 14 of the reply declaration, I just wanted to reiterate that, which is appendix 920.

[00:25:51] Speaker 00:
This is the paragraph where he attaches all of the consumer articles that show the demand for video.

[00:25:59] Speaker 00:
And specifically says, by August of 2005, sending video messages using mobile devices and networks was commonplace.

[00:26:08] Speaker 00:
He's showing that this is also a motivation.

[00:26:11] Speaker 00:
This is something that is commonplace in the industry that needs to happen.

[00:26:15] Speaker 00:
And then he provided evidence of that, which also provides a motivation to combine a reference, adapting a still image, to looking to a reference that adapts a video image.

[00:26:27] Speaker 00:
It's that simple step.

[00:26:29] Speaker 00:
The evidence is ignored by the board.

[00:26:31] Speaker 00:
The evidence from Appendix 920, paragraph 14, followed by paragraph 34, where Mr. Klausner reiterates that everything that he said before in that reply declaration establishes that there is more power to a video than to a still image.

[00:26:50] Speaker 00:
We have a complete record.

[00:26:52] Speaker 00:
that was ignored by the board.

[00:26:53] Speaker 00:
I don't believe that you have to remand.

[00:26:55] Speaker 04:
I believe... What about the fairly long footnote three, page eight to nine of the rent brief, itemizing issues relevant to the question that the board did not need to reach?

[00:27:08] Speaker 00:
And those, for example, Your Honor, they weren't addressed during oral argument.

[00:27:11] Speaker 00:
There was nothing there.

[00:27:12] Speaker 00:
I don't believe there's anything there that would change the argument.

[00:27:16] Speaker 00:
These are... But we don't have any briefing on that, so... You don't, Your Honor.

[00:27:19] Speaker 00:
You're correct about that.

[00:27:20] Speaker 06:
I do think... Were the issues raised below that are in footnote three?

[00:27:25] Speaker 00:
I would have to go back and check for certain.

[00:27:27] Speaker 00:
I don't believe they were in the way that footnote three said, but I have no reason to refute that they're putting that on the record here.

[00:27:34] Speaker 00:
I'd have to go back and check, Your Honor.

[00:27:35] Speaker 00:
I simply don't know.

[00:27:38] Speaker 00:
But I do believe, Your Honor, that you could simply reverse, because the only finding that the board made is that the only thing missing, no one disputed,

[00:27:47] Speaker 00:
that all of the elements are present in the combination.

[00:27:50] Speaker 00:
The only thing disputed was the motivation to combine, and the evidence overwhelmingly shows that there was, in fact, a motivation to combine still or with video.

[00:28:00] Speaker 00:
And that's what happened with Columbia, with Bellordra.

[00:28:03] Speaker 00:
And again, the consumer interest alone is enough.

[00:28:06] Speaker 03:
Just to double check, in your gray brief, is there anything that responds to footnote three in the red brief?

[00:28:11] Speaker 00:
No, Your Honor.

[00:28:13] Speaker 06:
Okay.

[00:28:13] Speaker 06:
Thank you, Ms.

[00:28:14] Speaker 06:
Keith.

[00:28:14] Speaker 06:
Thank both counsel and cases.

[00:28:16] Speaker 00:
Thank you, Your Honor.

[00:28:50] Speaker 06:
Okay.