[00:00:00] Speaker 04:
141093, exact wear solutions versus pictometry international.

[00:00:39] Speaker 04:
Yes.

[00:00:52] Speaker 04:
Why don't we give the other side a moment to get settled.

[00:00:56] Speaker 03:
Okay, please proceed.

[00:01:08] Speaker 03:
Thank you, Your Honors, and good afternoon.

[00:01:10] Speaker 03:
May it please the court?

[00:01:11] Speaker 03:
This case addresses a question of public accessibility of Pictometry's 2007 user guide.

[00:01:20] Speaker 03:
And it really asks the question whether a company can engage in a nationwide sales, marketing, and distribution effort for its software program and user guide, and then stand mute when the guide is cited as prior art to its patents.

[00:01:35] Speaker 03:
Here, this 2007 guide

[00:01:37] Speaker 03:
came two years before the priority date for the 880 patent, more than three years before the priority date for the 732 patent.

[00:01:45] Speaker 03:
Because pictometry has a duty of candor and good faith before the PTAB, it cannot simultaneously raise technical evidentiary objections while concealing what it knows are the facts

[00:01:58] Speaker 04:
that undermine its objections.

[00:02:02] Speaker 04:
I know you're making general statements.

[00:02:04] Speaker 04:
Why don't we talk about this case?

[00:02:05] Speaker 04:
Because you're making pretty serious sounding accusations.

[00:02:11] Speaker 04:
The board found against you in this case because it said that whatever use there was of this user guide was very restricted, right?

[00:02:19] Speaker 03:
That's correct, Your Honor.

[00:02:20] Speaker 03:
They said it was a closed group.

[00:02:24] Speaker 03:
That was the theory that the

[00:02:26] Speaker 03:
pictometry presented and that the board accepted, but that... Well, was that wrong in your view as a matter of fact or as a matter of law?

[00:02:34] Speaker 03:
Both, Your Honor, because the closed group theory is repudiated by pictometry's own document.

[00:02:45] Speaker 03:
And let me be specific about that.

[00:02:47] Speaker 03:
That's the MAPC, the Multiple

[00:02:50] Speaker 03:
the Metropolitan Area Planning Council license agreement with Pictometry and the MAPC... This is your 3.1C2 argument?

[00:03:02] Speaker 03:
Yes, yes it is, Your Honor.

[00:03:04] Speaker 03:
That's 3.1C2 as well as 3.1B.

[00:03:08] Speaker 03:
The provisions that Pictometry cited and that the Board relied upon without citing this additional material were the ones that said keep this confidential.

[00:03:20] Speaker 03:
But the rest of the agreement makes it clear that the user guide is available to whoever needs it.

[00:03:28] Speaker 03:
That means a municipality that's a member of the MAPC to any employee of that municipality who has need to have access to it.

[00:03:37] Speaker 05:
Only in the office of the holder of the license.

[00:03:42] Speaker 03:
That's what the license agreement says, Your Honor.

[00:03:44] Speaker 03:
But other provisions in that section say you can't.

[00:03:49] Speaker 05:
license guidelines that exhibit 2021 say that also the contractor, John Q. Public, can come into the office of the municipality and there enjoy the user guide.

[00:04:09] Speaker 05:
Can't make a copy of it and take it home, but they can do it there.

[00:04:13] Speaker 03:
That's correct, Your Honor.

[00:04:14] Speaker 03:
I think that is correct.

[00:04:15] Speaker 03:
So John Q. Public has access to this user guide, but in addition,

[00:04:19] Speaker 05:
any employee of the municipality who is using... Well, yeah, but John, the public has access to it under tight restrictions.

[00:04:27] Speaker 03:
Well, I don't think the restrictions are very tight, Your Honor.

[00:04:30] Speaker 05:
Well, that's right.

[00:04:30] Speaker 05:
You can't copy it and take it home.

[00:04:32] Speaker 05:
You can't make notes on it.

[00:04:33] Speaker 05:
You can see it in the office.

[00:04:35] Speaker 03:
Right.

[00:04:36] Speaker 05:
So this is like doctors at a conference who see things.

[00:04:39] Speaker 05:
So we've got a body of case law that deals with restricted access, right?

[00:04:44] Speaker 03:
Yes.

[00:04:45] Speaker 05:
And your problem is to show why your case is different from that case law.

[00:04:50] Speaker 03:
Yes.

[00:04:51] Speaker 03:
And I think the evidence shows, Your Honor, that the MAPC agreement and other documents of record show that the user guide is available to any employee of the municipality.

[00:05:06] Speaker 03:
You can make as many copies as you need.

[00:05:08] Speaker 03:
And it's also available to a contractor to the municipality.

[00:05:13] Speaker 05:
Yes, the employees, somebody who works in the municipality, at least I suppose they probably have to be authorized somehow in the municipality.

[00:05:21] Speaker 05:
I suppose the janitor in that person who cleans the toilets doesn't have access to the software.

[00:05:29] Speaker 05:
For the users who are using it, that's true.

[00:05:32] Speaker 03:
Yeah, I think that's right, Your Honor.

[00:05:33] Speaker 03:
But this is image acquisition.

[00:05:35] Speaker 05:
There's no showing in this record that they are

[00:05:38] Speaker 05:
be persons of ordinary skill in the art?

[00:05:40] Speaker 03:
Well, Your Honor, I believe it's a reasonable assumption from the facts that we have.

[00:05:45] Speaker 03:
This is image acquisition software.

[00:05:47] Speaker 03:
It's a system for obtaining.

[00:05:50] Speaker 05:
Number two, don't you have to make your case?

[00:05:52] Speaker 05:
Don't you have to show that it's at least an interested person plus one interested person who's one of skill in the art who'd have access to this?

[00:06:01] Speaker 03:
I don't believe we're required to specifically say that a person of ordinary skill in the art actually had access to it.

[00:06:07] Speaker 03:
I think we have to show that it was distributed.

[00:06:09] Speaker 05:
Is it enough that someone walking off, a teenager walking off the street has access?

[00:06:14] Speaker 05:
Does that make it publicly accessible?

[00:06:16] Speaker 03:
Well, that person may not be the right person, Your Honor, but a municipal employee.

[00:06:21] Speaker 05:
The who matters, doesn't it?

[00:06:23] Speaker 05:
It does matter.

[00:06:24] Speaker 03:
But here, the who is a municipal employee or an employee of a contractor for the municipality.

[00:06:29] Speaker 05:
Well, how do I know, in terms of municipal employee, how do I know that you're not relying on the janitor as opposed to a software technician?

[00:06:37] Speaker 03:
Because of the nature of the software that's involved, Your Honor, that it's an image acquisition software system that Pictometry sells.

[00:06:46] Speaker 03:
Pictometry has one of the best aerial image libraries in the country.

[00:06:52] Speaker 03:
And this is their software that encourages you to make use of it.

[00:06:57] Speaker 03:
And the user manual tells you how to do that.

[00:07:01] Speaker 05:
But to start off, there isn't free access.

[00:07:04] Speaker 05:
So first off, the John Q. public can't walk in and see this stuff, right?

[00:07:09] Speaker 03:
Well, Your Honor, if I might point out that we obtained and put in the record the user manual.

[00:07:17] Speaker 03:
It's in your appendix in volume two and I think in volume five, one for each proceeding.

[00:07:23] Speaker 03:
It's several hundred pages long.

[00:07:26] Speaker 03:
We got it off the internet.

[00:07:27] Speaker 03:
So it's definitely publicly accessible.

[00:07:30] Speaker 04:
Is that the case you made?

[00:07:33] Speaker 04:
I thought this was really a question of who had restricted access and whether those restrictions were real.

[00:07:38] Speaker 04:
Are you arguing now that it was available on the internet at the time and therefore it was publicly accessible?

[00:07:44] Speaker 03:
We believe it was based on the evidence that we presented.

[00:07:47] Speaker 05:
Was that a record in this case?

[00:07:49] Speaker 03:
I believe it is, Your Honor.

[00:07:51] Speaker 05:
You believe it is?

[00:07:52] Speaker 05:
Is it a record?

[00:07:55] Speaker 05:
Did you put into the record in this case, through an expert or with an affidavit or whatever, that this is freely available on the internet?

[00:08:04] Speaker 05:
This is the user manual.

[00:08:05] Speaker 03:
Not that specifically, Your Honor.

[00:08:08] Speaker 03:
We did put the user manual into evidence.

[00:08:10] Speaker 05:
I understand that, so you found it someplace.

[00:08:14] Speaker 03:
The user manual itself.

[00:08:15] Speaker 05:
We're dealing with a decision the board made, not the one that you might.

[00:08:18] Speaker 04:
So what did the board say about the availability on the internet?

[00:08:21] Speaker 03:
The board adopted the argument that it was a closed group thing because there were restrictions on access.

[00:08:28] Speaker 04:
Are they talking about this availability on the internet?

[00:08:31] Speaker 03:
They were not talking about availability on the internet.

[00:08:34] Speaker 03:
Because?

[00:08:34] Speaker 03:
They excluded certain exhibits, we think erroneously, that made it clear.

[00:08:38] Speaker 05:
Well, where does this internet availability come from?

[00:08:42] Speaker 05:
Can you tell us?

[00:08:43] Speaker 00:
It came from oral argument just now.

[00:08:45] Speaker 03:
It's nowhere in the record.

[00:08:45] Speaker 03:
Did it come from anywhere other than oral argument?

[00:08:48] Speaker 03:
Well, the manual is in the record, Your Honor.

[00:08:50] Speaker 03:
We put it in the record.

[00:08:51] Speaker 03:
You started talking all about it.

[00:08:53] Speaker 05:
You started your argument by talking about candor and good faith and not concealing things.

[00:08:59] Speaker 03:
Yes.

[00:08:59] Speaker 05:
And then you're coming up with something in oral argument that you found on the internet, so you think that should affect our judgment as to the board's decision?

[00:09:09] Speaker 05:
What am I missing?

[00:09:10] Speaker 05:
Am I getting old and missing something?

[00:09:12] Speaker 03:
No, it's probably me, Your Honor.

[00:09:14] Speaker 05:
Do you want to take back what you said about accessibility on the Internet?

[00:09:20] Speaker 03:
We don't claim that we established accessibility on the Internet in 2007.

[00:09:26] Speaker 03:
Why'd you bring it up?

[00:09:27] Speaker 03:
Just as mentioning that that's how it got into the record, that's where we found it.

[00:09:32] Speaker 04:
Well, that's a pretty significant thing.

[00:09:33] Speaker 04:
If there were a finding made, it was available on the internet, that could change this whole case.

[00:09:37] Speaker 04:
But it's not an issue in this case, because you didn't raise it appropriately.

[00:09:40] Speaker 03:
Yes, I agree with that, Your Honor.

[00:09:41] Speaker 03:
I'm not making that contention that we have a record of that.

[00:09:45] Speaker 05:
So don't you think in canter and good faith you should tell us now to forget the fact that you found it on the internet?

[00:09:52] Speaker 03:
Well, you can do that, Your Honor.

[00:09:54] Speaker 05:
You could do it, or you're asking us to do it?

[00:09:56] Speaker 03:
You may do it, Your Honor, and I don't think it affects our position in the case.

[00:10:01] Speaker 03:
So can we go back to restricted use?

[00:10:04] Speaker 04:
Yes.

[00:10:04] Speaker 04:
I think Judge Clevenger asked you about five minutes ago what case you're talking about.

[00:10:10] Speaker 04:
We have a variety of cases we've got restricted use.

[00:10:14] Speaker 04:
And the ones that find it was restricted, if the people getting the information, who had access to the information,

[00:10:20] Speaker 04:
We're under some sort of confidentiality.

[00:10:23] Speaker 04:
There's one you go to a show, but you couldn't take anything with you.

[00:10:25] Speaker 04:
You couldn't take pictures, et cetera.

[00:10:28] Speaker 04:
Why is this case different from those cases in terms of the restrictions that were placed?

[00:10:34] Speaker 03:
Your Honor, we think that we would rely upon the Garrett case, which the board cited.

[00:10:39] Speaker 03:
We think they cited it for the proposition that if you distribute to a government agency and its employees, that that's not public use.

[00:10:48] Speaker 04:
Well, we can quibble about how we're reading that and what we're taking away from that.

[00:10:53] Speaker 04:
But anything on that general principle?

[00:10:56] Speaker 04:
Are there cases that we have, our court, that say if there are restrictions here, we all agree there are restrictions, right?

[00:11:05] Speaker 04:
And people couldn't remove these documents.

[00:11:07] Speaker 04:
So is your argument that it was still publicly accessible because the restrictions

[00:11:12] Speaker 04:
still included a huge number of people?

[00:11:16] Speaker 03:
It definitely included a huge number of people, Your Honor.

[00:11:19] Speaker 03:
How many?

[00:11:20] Speaker 03:
Well, from what's in the record, the MAPC agreement applies to 101 cities and towns in eastern Massachusetts.

[00:11:29] Speaker 03:
The Lariat agreement applies to 88 cities and 40 agencies in Los Angeles County.

[00:11:36] Speaker 03:
There's evidence that's in the record

[00:11:39] Speaker 03:
of a training session in Hartford, another one in Flint, Michigan, another one in Iowa.

[00:11:44] Speaker 03:
So we have multiple instances of dozens, over nearly 200 municipalities and cities and agencies.

[00:11:56] Speaker 05:
All subject to the same restrictions.

[00:11:59] Speaker 03:
All having access.

[00:12:00] Speaker 03:
And we believe that even if those restrictions do apply, Your Honor, they still

[00:12:09] Speaker 03:
permit a very wide distribution among the employees of those municipalities and among the employees of the contractors for those municipalities.

[00:12:21] Speaker 04:
Did everybody have the same access to the user guide?

[00:12:24] Speaker 03:
Yes, that's exactly what it provides.

[00:12:26] Speaker 03:
The user guide is described as documentation.

[00:12:29] Speaker 03:
The documentation in section 3.1 includes the user guide, and it is provided that you

[00:12:38] Speaker 03:
that you can provide access to that user guide to the employees of the municipality, to employees of contractors of the municipality.

[00:12:47] Speaker 03:
And there's also evidence in the record that Pictometry itself provided the software program and the user guide to private companies.

[00:12:56] Speaker 03:
So we think that it fits right within Garrett, which had both

[00:13:01] Speaker 03:
government entities, and private entities having access to the documents in question.

[00:13:06] Speaker 05:
What's the record site for the evidence that spectrometry made it available to third parties?

[00:13:12] Speaker 05:
Appendix site for that?

[00:13:20] Speaker 03:
I don't have that, Your Honor, but I will get that for you.

[00:13:22] Speaker 04:
And did the board deal with that argument?

[00:13:27] Speaker 00:
Didn't the board say that it couldn't be disseminated

[00:13:31] Speaker 00:
to anyone who didn't need access to it, and if it was permitted to be disseminated to third-party contractors, doesn't the MAC provide it can only do so under the supervision of the authorized users and only in certain limited circumstances?

[00:13:43] Speaker 00:
Isn't that both what the MAC agreement says and what the board found?

[00:13:46] Speaker 03:
Well, the board found that, Your Honor, but we believe that the MAC agreement, which Pictometry said is representative of its license agreements,

[00:14:00] Speaker 03:
specifically allows to make as many copies as are needed for whoever needs access to the user guide.

[00:14:09] Speaker 03:
And it's a complex license agreement, as you would expect for a software product.

[00:14:15] Speaker 05:
The confidentiality of it.

[00:14:17] Speaker 05:
You can copy it, but you have to use it.

[00:14:19] Speaker 05:
Somebody who wants to come in and copy it has to use it in the facility.

[00:14:23] Speaker 03:
You can't walk out with it.

[00:14:24] Speaker 03:
I don't think that that is provided.

[00:14:26] Speaker 05:
Well, have you bought it in a look at Appendix 2000?

[00:14:30] Speaker 05:
Exhibit 2021?

[00:14:32] Speaker 03:
I believe I have, Your Honor.

[00:14:33] Speaker 05:
Is it acceptable to allow the hired contractor to install and take the stuff away with it?

[00:14:38] Speaker 05:
No.

[00:14:39] Speaker 05:
On an outside computer?

[00:14:40] Speaker 03:
No.

[00:14:42] Speaker 03:
OK, well, Your Honor.

[00:14:43] Speaker 05:
OK, you should know what the exhibits say.

[00:14:47] Speaker 03:
Right, yes, I agree.

[00:14:48] Speaker 05:
Now, can we come back just for a second to your argument that pictometry itself gave the user guide to third parties.

[00:14:54] Speaker 05:
And I asked you for a record site of that.

[00:14:56] Speaker 05:
Yes.

[00:14:57] Speaker 05:
And your colleague is over there going to find one.

[00:15:00] Speaker 05:
He's not looking at a record.

[00:15:01] Speaker 00:
Do you want to maybe bring it up on rebuttal?

[00:15:03] Speaker 03:
Yes, I can bring it up on rebuttal.

[00:15:06] Speaker 05:
Because I hope it's not, we found it on the computer type argument.

[00:15:10] Speaker 03:
No, no.

[00:15:10] Speaker 03:
It's in one of the exhibits that was admitted into the record.

[00:15:13] Speaker 04:
OK.

[00:15:14] Speaker 04:
Why don't we reserve some rebuttal time so you don't hear from me at this time.

[00:15:17] Speaker 04:
Thank you.

[00:15:37] Speaker 02:
Good afternoon, Your Honors.

[00:15:38] Speaker 02:
May it please the court.

[00:15:40] Speaker 02:
As this panel has already noted, at the center of this afternoon's appeal is whether or not the documentation is confidential.

[00:15:47] Speaker 02:
And we know that it's confidential because Pictometry's license agreement that we've been discussing, which was before the board.

[00:15:54] Speaker 05:
Not whether it's confidential, but sufficiently restricted access.

[00:15:59] Speaker 02:
OK, Your Honor.

[00:16:01] Speaker 05:
I mean, if the document is confidential, but you let the world see it, then it has limited confidentiality.

[00:16:09] Speaker 05:
I'm just being picky with your choice of words.

[00:16:12] Speaker 02:
I understand your point, Your Honor.

[00:16:13] Speaker 02:
So let me turn it to limited access.

[00:16:16] Speaker 02:
But the license agreement itself talks in terms of confidentiality.

[00:16:20] Speaker 02:
So section 8.4 of the license agreement says that all of the material is valuable to pictometry.

[00:16:27] Speaker 05:
That's why there's restricted access.

[00:16:29] Speaker 04:
Are there limits to restriction?

[00:16:32] Speaker 04:
I mean, what if you've got, you know, selling pornographic material or something, so you only distribute it and you say you can't allow anyone under 18 or anyone under 21 to look at this?

[00:16:43] Speaker 04:
So there are restrictions on the population, on who in the population can have access to something.

[00:16:50] Speaker 04:
But the restrictions only leave open, you know, 200 million people who are not covered by those.

[00:16:58] Speaker 04:
So is the inquiry about restriction, are there number levels?

[00:17:03] Speaker 04:
I mean, is there an area where even though there is some restriction in terms of public access or confidentiality, but the universe that's allowed to see it is so broad that we could still construe it as publicly available?

[00:17:19] Speaker 02:
We've thought about this hypothetical, Your Honor.

[00:17:21] Speaker 02:
When is enough, when is it just too much and too many people have access to it?

[00:17:26] Speaker 02:
So far, the court's cases haven't gone there.

[00:17:28] Speaker 02:
This court had a recent decision in Medtronic's versus Barry, which was June 11th, 2018.

[00:17:36] Speaker 02:
And in that case, there were hundreds of physicians that had been exposed in a limited access situation to the printed publication.

[00:17:46] Speaker 02:
And that was not found to be enough to have removed the reasonable expectation of limited access.

[00:17:54] Speaker 00:
I haven't seen a case that goes beyond that.

[00:17:55] Speaker 00:
That was hundreds of people.

[00:17:58] Speaker 00:
What does the record reflect regarding the distribution and possible accessibility of this software?

[00:18:05] Speaker 02:
So the record was not focused on this, Your Honor.

[00:18:10] Speaker 02:
Opposing counsel did mention a couple of instances where there are numbers provided in the record.

[00:18:14] Speaker 02:
For instance, we know that Map-C has 101 municipalities.

[00:18:18] Speaker 02:
We had thought that the record was devoid of any other information regarding Map-C, and we said so in our brief.

[00:18:23] Speaker 02:
And I will correct that at this point.

[00:18:25] Speaker 02:
In Exhibit 2010, there's an explanation.

[00:18:29] Speaker 02:
This was admitted by the board.

[00:18:32] Speaker 02:
And this appears at the record at Appendix 1699.

[00:18:38] Speaker 02:
And it explains that MAPC has 40 professional staff

[00:18:43] Speaker 02:
under the leadership of an executive director.

[00:18:45] Speaker 02:
And that's who is involved in MAPC for the 101 municipalities.

[00:18:49] Speaker 04:
Well, so do you agree the number might be relevant?

[00:18:52] Speaker 04:
And if so, why isn't the information there?

[00:18:54] Speaker 04:
Is it because they didn't ask for discovery or do it?

[00:18:56] Speaker 04:
Is it because the discovery was precluded or the information was not rejected by the board?

[00:19:03] Speaker 02:
So they didn't ask for discovery on it.

[00:19:06] Speaker 02:
It wasn't put into the record.

[00:19:08] Speaker 02:
What was put into the record are things like the MAPC

[00:19:12] Speaker 02:
information.

[00:19:13] Speaker 02:
They had shown that letterhead, which said 101 municipalities.

[00:19:17] Speaker 02:
We had thought it was limited to that.

[00:19:19] Speaker 02:
Now we have this additional information buried in the Cohasset town report.

[00:19:23] Speaker 02:
We know that Lariac has 88 counties, but we have no idea how many employees are involved.

[00:19:28] Speaker 02:
The only thing that ended up in the record about the dissemination beyond these restricted groups was information that we put into the record

[00:19:37] Speaker 02:
Exactwares expert witness, who is an expert in photogrammetry, which is the area involved here, and has been an expert in this area for decades.

[00:19:48] Speaker 02:
We asked him at his deposition, which we put into the record before the board, whether or not he had been aware of the EFS user manual before he became involved in the IPR.

[00:19:58] Speaker 02:
And his answer, which we put before the board in our briefing, was no, he had never been aware of it.

[00:20:03] Speaker 02:
We also asked him whether or not he asked any of the people that he knew.

[00:20:06] Speaker 00:
But whether that one dude is aware of it.

[00:20:08] Speaker 00:
I mean, how much relevance do you really think that has?

[00:20:10] Speaker 02:
It has limited relevance, Your Honor.

[00:20:12] Speaker 00:
Yeah, really, really limited.

[00:20:14] Speaker 00:
I mean, the problem is, and it creates a really unusual situation for us, this is much bigger than the 100 physicians in Berry versus Medtronic.

[00:20:22] Speaker 00:
This is whole municipalities with an agreement that not only says that any employee who needs to use this software has the license to have access to it,

[00:20:33] Speaker 00:
but it says third parties doing business with any licensee can have access to it under the MAC agreement as needed.

[00:20:41] Speaker 00:
So what, you know, wow, like, so public accessibility isn't, I mean, it's one of these, if a tree falls in the woods and no one's there to hear it, did it really fall or make a sound?

[00:20:51] Speaker 00:
You know, the fact that you're telling me one guy says, that's interesting, I'm a contractor and I wasn't aware of it, I never saw it.

[00:20:58] Speaker 00:
That's not the issue.

[00:20:59] Speaker 00:
The issue is whether it's accessible to the public, not whether someone did access it.

[00:21:03] Speaker 00:
whether it's accessible.

[00:21:05] Speaker 00:
And doesn't this confidentiality or MAC agreement?

[00:21:09] Speaker 00:
Gentlemen?

[00:21:10] Speaker 00:
Gentlemen?

[00:21:11] Speaker 00:
Gentlemen!

[00:21:13] Speaker 00:
You are completely disrupting this argument.

[00:21:19] Speaker 00:
So anyway, the point isn't whether or not someone did access it.

[00:21:26] Speaker 00:
I think the point is,

[00:21:27] Speaker 00:
whether or not it was accessible.

[00:21:29] Speaker 00:
And doesn't the MAC agreement allow for really extensive accessibility?

[00:21:33] Speaker 02:
So let me address that last point first.

[00:21:35] Speaker 02:
And then I'd also like to address the points that came before it.

[00:21:38] Speaker 02:
So I was confused in the appellate briefing because I believe there's a new argument.

[00:21:43] Speaker 02:
They argue that after you take a look at 3.1c, that somehow that implicates 3.1b.

[00:21:51] Speaker 02:
So I want to walk through it.

[00:21:52] Speaker 02:
And I'm at appendix 1667.

[00:21:57] Speaker 00:
You've got six volumes.

[00:22:00] Speaker 00:
Which one is that?

[00:22:01] Speaker 02:
I'm sorry, Your Honor.

[00:22:02] Speaker 02:
I don't even know which one.

[00:22:04] Speaker 05:
Is this the C2 argument?

[00:22:06] Speaker 02:
This is the C2 argument.

[00:22:08] Speaker 05:
C2 is actually on 1668, I think, isn't it?

[00:22:11] Speaker 05:
C begins on 1667 and continues to 1668.

[00:22:15] Speaker 05:
I tore the page out rather than bring it all the way.

[00:22:18] Speaker 01:
So in 3.1C.

[00:22:20] Speaker 01:
Wait a minute.

[00:22:22] Speaker 01:
I'm sorry.

[00:22:23] Speaker 01:
Sorry, Your Honor.

[00:22:23] Speaker 01:
1667 and 1668.

[00:22:27] Speaker 02:
So in 3.1c it talks about uses and it says through authorized users only, authorized users are defined in 2.3 above that the licensee can use and operate the license software.

[00:22:49] Speaker 02:
This comes from the predicate at the beginning of 3.1 which says that there are

[00:22:54] Speaker 02:
Pictometry hereby grants to the licensee a limited license for the following.

[00:22:58] Speaker 02:
And then we get down to through authorized users to use and operate the licensed software on designated servers and workstations and the conduct of public business of the licensee or the authorized subdivisions and to use the licensed product in the following activities and for no others.

[00:23:14] Speaker 02:
And then continuing on to section two, which is the point that exec work brings up for persons doing business with the licensee.

[00:23:20] Speaker 05:
That's the public.

[00:23:21] Speaker 02:
And it says,

[00:23:23] Speaker 02:
That is the public in this case.

[00:23:25] Speaker 05:
That's no longer talking about employees and people that weren't from the municipality.

[00:23:30] Speaker 00:
Correct.

[00:23:30] Speaker 00:
Is it third-party contractors, or is it the general public?

[00:23:33] Speaker 02:
It is defined as people that are involved in construction, real estate disposition, facilities management, environmental studies, et cetera.

[00:23:41] Speaker 05:
Do you business for the licensing?

[00:23:43] Speaker 05:
Cleveringer Construction Company.

[00:23:44] Speaker 02:
Absolutely, Your Honor.

[00:23:46] Speaker 02:
I didn't realize you diversified.

[00:23:48] Speaker 02:
So under the supervision of authorized users, allow the representatives of persons doing business with the licensee or the authorized subdivisions on licensee projects to use and execute the licensed software.

[00:24:02] Speaker 02:
Just the licensed software.

[00:24:04] Speaker 02:
So the definition of licensed products, which is used elsewhere, is not only the licensed software, but also

[00:24:15] Speaker 02:
other licensed aspects.

[00:24:16] Speaker 02:
This is in section 2.1.

[00:24:18] Speaker 02:
And that paragraph continues on to say in the last sentence that the licensee or the authorized subdivisions shall cause each participant to use hard copies of the licensed images.

[00:24:29] Speaker 02:
So the only things that the public are allowed to have are images and software access.

[00:24:36] Speaker 05:
I thought the images and software?

[00:24:39] Speaker 02:
Yes, Your Honor.

[00:24:39] Speaker 02:
In the last sentence.

[00:24:40] Speaker 05:
Where do we get the images?

[00:24:41] Speaker 02:
In the last sentence of that section.

[00:24:44] Speaker 05:
I'll pause each to agree to use hard copies.

[00:24:46] Speaker 02:
Hard copies or JPEG copies of licensed images.

[00:24:51] Speaker 02:
And licensed images are not documentation.

[00:24:56] Speaker 00:
I guess I thought, am I wrong?

[00:24:57] Speaker 00:
I thought that the documentation came with the software.

[00:24:59] Speaker 00:
It was part of the software.

[00:25:01] Speaker 02:
So the documentation.

[00:25:02] Speaker 05:
That's taken using the images.

[00:25:04] Speaker 05:
Those are pictures.

[00:25:05] Speaker 02:
Correct, John.

[00:25:06] Speaker 05:
Right.

[00:25:08] Speaker 05:
But licensed software, I thought,

[00:25:10] Speaker 05:
I thought that the user manual was embedded in the software.

[00:25:14] Speaker 02:
The user manual is provided with the software.

[00:25:17] Speaker 02:
It is in the same directory as the software, and it's not on the record.

[00:25:22] Speaker 05:
You're telling me that the words license software exclude the manual?

[00:25:27] Speaker 02:
According to this license agreement, it does, because in section 110, license documentation,

[00:25:37] Speaker 02:
means the written or electronic materials containing instructions or other information.

[00:25:42] Speaker 05:
And exactware agreed below that the EFS... What is the definition of licensed software that excludes the manual?

[00:25:49] Speaker 02:
The definition of licensed software is in 1.7, and it means any proprietary software provided by Pectometry.

[00:25:59] Speaker 02:
This includes but is not limited to such programs as EFS.

[00:26:03] Speaker 02:
and change analysis and program modules such as 911 or GIS integration.

[00:26:10] Speaker 05:
My recollection from the board decision was that there was a finding that the manual was embedded in the software.

[00:26:20] Speaker 02:
I don't recall a finding that the manual was embedded in the software.

[00:26:23] Speaker 02:
There was an exhibit.

[00:26:26] Speaker 05:
I thought you had access to the software.

[00:26:28] Speaker 05:
You had access to the manual.

[00:26:29] Speaker 02:
Maybe I'm wrong.

[00:26:34] Speaker 02:
On the same computer as the software is an electronic copy of the manual.

[00:26:40] Speaker 02:
It is in the same directory as the software.

[00:26:43] Speaker 02:
It is not clear before the critical date.

[00:26:46] Speaker 02:
It's not in the record.

[00:26:47] Speaker 02:
And we don't know.

[00:26:48] Speaker 02:
We're talking about 10 years ago, what was going on 10 years ago, whether or not there was a way to get to the manual from the software.

[00:26:54] Speaker 02:
It's just not in the record.

[00:26:55] Speaker 02:
It is in the same exact directory as the software, but it

[00:27:01] Speaker 05:
We believe based on what's in the... Well, it's under adversary using 3.1C2 for the proposition that John Q. Public would have access to the user manual.

[00:27:11] Speaker 02:
And I don't understand how, because it says that they can use and execute the licensed software.

[00:27:16] Speaker 00:
Well, it also... What about 3.1B, which also says under documentation, they can copy and use related documentation included in the licensed products.

[00:27:26] Speaker 02:
Absolutely, Your Honor, which is where I was going to next, and that is

[00:27:30] Speaker 02:
that the licensee has a license for the following.

[00:27:34] Speaker 02:
And it includes in 3.1b the ability to copy and to use the related documentation included in the licensed products in connection with the activities described.

[00:27:45] Speaker 02:
So this heavily slices and dices things.

[00:27:48] Speaker 02:
Pictometry wanted to allow the contractors to be able to use the images.

[00:27:52] Speaker 02:
They needed to sit there with the people from the municipality, for instance, to say, I need this particular image of the road.

[00:28:00] Speaker 02:
I need this particular image of the mountain.

[00:28:02] Speaker 02:
I need it from this angle.

[00:28:03] Speaker 02:
The idea is that the photometry software provides multiple angles and an overhead view.

[00:28:08] Speaker 02:
And so it was important for the contractor to get the right angle.

[00:28:12] Speaker 02:
And so they would need to be at the elbow of the municipality user who was licensed.

[00:28:18] Speaker 02:
And not only were they licensed to help these third parties

[00:28:23] Speaker 02:
use the software, use and execute the license software, but they, the licensees, the employees of the municipality, they were allowed to copy and use the documentation.

[00:28:33] Speaker 02:
They weren't allowed to give it to other people.

[00:28:37] Speaker 02:
And that is the message of 3.1.

[00:28:39] Speaker 02:
It divides this up.

[00:28:40] Speaker 04:
Okay, so can we get back to what we were talking about a while back, which was what is the universe of people?

[00:28:46] Speaker 04:
Even if you slice and dice it, even if we agree with, okay, so we're down to

[00:28:51] Speaker 04:
employees of municipalities.

[00:28:55] Speaker 04:
We've got the MAC thing, and we know they're LA.

[00:29:00] Speaker 04:
Is it in the record how many jurisdictions were party to this stuff?

[00:29:05] Speaker 02:
It's not, Your Honor.

[00:29:07] Speaker 02:
But I mean, it's known that Pictometry is the top image company, whether that happened before the credible date or not.

[00:29:12] Speaker 04:
So realistically, if we're talking about municipal employees only,

[00:29:16] Speaker 04:
that had access to this.

[00:29:18] Speaker 04:
It could be thousands, right?

[00:29:21] Speaker 04:
Thousands of people?

[00:29:22] Speaker 05:
Fairly assume one per unit, right?

[00:29:25] Speaker 05:
Wherever they have a computer that has the software on it, there's somebody who knows how to deal with it.

[00:29:30] Speaker 02:
It absolutely could be, but that's not in the record.

[00:29:33] Speaker 02:
This is ExactWord's petition.

[00:29:35] Speaker 02:
They chose what evidence they were going to put in the record, and the board can only make a decision.

[00:29:40] Speaker 02:
And this court can only make a decision based on the evidence that ExactWord chose to put in the record.

[00:29:45] Speaker 02:
The best we can say of this record, if you want to take exact where side, is we know that Liriak had 88 municipalities.

[00:29:53] Speaker 02:
So by Judge Clevenger's assumption, I should assume 88 people.

[00:29:58] Speaker 02:
And that Map C, and I'm struggling on what to call it too,

[00:30:04] Speaker 02:
had 101 municipalities, but we know that they only had 41 employees from the town of Cohasset, buried in the town of Cohasset.

[00:30:11] Speaker 04:
So what troubles me about the discussion we're having here is that I don't remember what, but some stuff in the board opinion really suggests that they were defining public use on one side and any restrictions on use on the other.

[00:30:27] Speaker 04:
And I guess some of us are wondering how fine that line might be if

[00:30:33] Speaker 04:
Even those that have restricted use, the numbers are in the thousands or even 100,000s.

[00:30:39] Speaker 04:
Why one would draw, even though we would all agree, it's not technically public use because we've got some restrictions under 18 years old or something.

[00:30:48] Speaker 04:
So can you help us with that?

[00:30:50] Speaker 02:
I understand the struggle.

[00:30:52] Speaker 02:
We struggle with the two.

[00:30:53] Speaker 02:
I wouldn't want to presume for the court how to draw that line.

[00:30:57] Speaker 02:
The nice thing about this case is the evidence of the record

[00:31:02] Speaker 02:
the stuff that the petitioner put in when they chose to file the IPR, if I use Judge Clevenger's assumption that there's one person per unit.

[00:31:10] Speaker 02:
Did they request discovery of this matter?

[00:31:12] Speaker 02:
They did not.

[00:31:12] Speaker 02:
They didn't request any discovery whatsoever.

[00:31:16] Speaker 02:
And the board noted that in the opinion that they didn't request discovery and said that if we wouldn't have given them discovery, that they would have ordered discovery because we were the company that put forward this manual in 2007.

[00:31:29] Speaker 02:
And so just

[00:31:30] Speaker 04:
One more question.

[00:31:32] Speaker 04:
I'll stay as long as you're willing to let me talk.

[00:31:34] Speaker 04:
We've been throwing the numbers around.

[00:31:35] Speaker 04:
So based on the record evidence that was submitted, where are we in terms of numbers?

[00:31:40] Speaker 04:
What do we know on the record?

[00:31:43] Speaker 02:
We're not substantially higher than the numbers that were at issue in the Medtronic versus Berry case.

[00:31:48] Speaker 02:
We have Lariac, which had 88.

[00:31:50] Speaker 02:
We have MAPC, which had 101.

[00:31:53] Speaker 02:
We get to something sub 200.

[00:31:55] Speaker 02:
I understand the reality.

[00:31:57] Speaker 02:
And I understand the assumptions we can make about the world.

[00:32:00] Speaker 02:
But we have a record below that was in front of the board that exact where it chose to put in front of them.

[00:32:05] Speaker 02:
And that's what we're left with.

[00:32:09] Speaker 02:
I'm not going to stand here and say that there aren't lots more.

[00:32:11] Speaker 02:
But I have no idea how many more.

[00:32:14] Speaker 02:
I don't know the order of magnitude.

[00:32:15] Speaker 00:
But the problem for me is, again, the issue is public accessibility, not public access past tense.

[00:32:24] Speaker 00:
And this presents a case where

[00:32:28] Speaker 00:
Based on this agreement, the accessibility, and based on the numbers we do have, there was large, really large accessibility.

[00:32:36] Speaker 00:
I mean, even if you're talking one person, one person, the agreement allows for much more than that.

[00:32:43] Speaker 00:
So I don't know how to deal with that, because the question isn't how many people did access it.

[00:32:49] Speaker 00:
The question is how many people had access to it.

[00:32:53] Speaker 05:
Even if we if we assume that just take the hundred and ten that I put out Each one of those people who worked in the government had very severe restrictions on what they could do, correct?

[00:33:05] Speaker 02:
Correct That's correct.

[00:33:08] Speaker 05:
And there is a question about whether people from the outside are

[00:33:12] Speaker 05:
There's a board finding here that I find interesting.

[00:33:15] Speaker 05:
Petitioner, this is at page 25 of the record and of the appendix and of the decision.

[00:33:22] Speaker 05:
Petitioner has not shown a member of the public would be aware that a user guide was stored in a folder on the computer or that they could locate it at all.

[00:33:32] Speaker 05:
Now that's talking about the public.

[00:33:35] Speaker 05:
I mean, if we're talking about accessibility, there are two categories here in this case.

[00:33:39] Speaker 05:
One is public and the other government employees.

[00:33:42] Speaker 05:
So it would seem to me that that fact-finding, if supported by sufficient evidence, destroys the argument that the outsider is relevant at all.

[00:33:53] Speaker 02:
I would agree, Your Honor.

[00:33:54] Speaker 05:
If he comes in and he can't find the user guy.

[00:33:58] Speaker 02:
I would agree, and I go back again to the Medtronic case.

[00:34:03] Speaker 05:
I just wonder whether that doesn't take the public out of the case for purposes of our analysis, leaving us just with the impunity of 110 government employees.

[00:34:13] Speaker 02:
Well, unless we find that that's not supported by substantial evidence in the record, then this panel is stuck with that finding.

[00:34:21] Speaker 02:
And I haven't heard anything from exec board to explain why that finding is incorrect.

[00:34:27] Speaker 02:
It is a fact finding.

[00:34:28] Speaker 05:
And there was a lot of evidence in the record about seeing images and seeing software.

[00:34:33] Speaker 02:
Correct.

[00:34:34] Speaker 05:
But the user guide is separate.

[00:34:36] Speaker 02:
That is correct, Your Honor.

[00:34:37] Speaker 05:
And the user guide is what the other side is trying to use as the prior reference.

[00:34:42] Speaker 02:
Correct, which is what they're limited to in IPR.

[00:34:44] Speaker 02:
They couldn't institute an IPR in something that wasn't a printed publication.

[00:34:48] Speaker 02:
OK, thank you.

[00:34:50] Speaker 02:
Thank you.

[00:35:01] Speaker 03:
Your Honor, to answer Judge Cleveringer's question, I believe that the section, it's exactly the same section that you were just looking at that we believe shows that members of employees of contractors in private companies could have access to the user guide.

[00:35:21] Speaker 03:
And I would note that that's in section 3.1.

[00:35:25] Speaker 05:
Well, that's assuming software includes the user guide.

[00:35:31] Speaker 03:
If the software, if the user guide is distributed.

[00:35:33] Speaker 05:
You heard that argument.

[00:35:34] Speaker 05:
The words in C2 are licensed software.

[00:35:38] Speaker 05:
And the question is, does licensed software include the user guide?

[00:35:42] Speaker 03:
Well, in 3.1b, Your Honor, it states to copy and use the related documentation included in the licensed products and connecting with the activities described in this section 3.1.

[00:35:57] Speaker 03:
So we believe that the

[00:35:59] Speaker 03:
user guide which was distributed along with the software.

[00:36:04] Speaker 03:
And my brother at the bar says it's right in the same directory that that was available.

[00:36:11] Speaker 03:
And that's a different provision than the one in section C which is talking about

[00:36:20] Speaker 03:
concern about keeping the software itself confidential and the image library itself confidential.

[00:36:27] Speaker 05:
By the way, did you find something in the record to support your statement just before you sat down that Pictromedy itself had given the user manual out to third party members in public?

[00:36:38] Speaker 03:
Only in this section, Your Honor.

[00:36:39] Speaker 03:
I could not find a separate reference from that.

[00:36:42] Speaker 03:
And that is not to members of the public, but to private companies.

[00:36:46] Speaker 03:
And that is because it says in C2, under the supervision of authorized users, allow representatives of persons doing business with the licensee to use and execute the license software at the licensees or authorized subdivisions facilities only.

[00:37:05] Speaker 03:
So that way, a contractor could actually come in and do this.

[00:37:10] Speaker 05:
That wasn't actually pictometry during it.

[00:37:12] Speaker 05:
That was licensees in pictometry, right?

[00:37:15] Speaker 03:
Yes.

[00:37:16] Speaker 05:
The tenor of the statement you made suggested to me that you had some evidence that spectrometry itself, apart from relationships with licensees, was handing out the user manual.

[00:37:29] Speaker 03:
Well, no, Your Honor.

[00:37:29] Speaker 03:
I didn't mean to suggest that.

[00:37:31] Speaker 03:
What I meant to say was that private entities would have access to it by means of the mechanism of this paragraph.

[00:37:41] Speaker 03:
And I think that the distinction here that this paragraph tries to draw

[00:37:46] Speaker 03:
It's not the greatest language in the world, but they want to keep their software confidential.

[00:37:51] Speaker 03:
They want to keep their image library confidential.

[00:37:53] Speaker 05:
The record misses, to me, misses a couple of key fact findings, which is these folks that work in the municipalities were persons of ordinary skill in the art.

[00:38:07] Speaker 05:
There's no finding to that effect, right?

[00:38:10] Speaker 05:
That's correct.

[00:38:12] Speaker 05:
We don't know whether the people who were working in the municipality, we don't know whether basically pictrometry comes in and sets the software up for the municipalities, or whether there's a geek who's killing the art who doesn't.

[00:38:30] Speaker 05:
Probably both.

[00:38:31] Speaker 05:
We don't know.

[00:38:32] Speaker 05:
We don't know.

[00:38:33] Speaker 05:
But it has to have been accessible to one still in the art.

[00:38:37] Speaker 05:
Yes.

[00:38:37] Speaker 05:
So although there may be one person in each agency, we don't know who they were.

[00:38:42] Speaker 03:
Well, the agencies we're talking about here, Lerota, for example, one of them is the city of Boston.

[00:38:48] Speaker 03:
How many people in the city of Boston would have access to this software and to the related user guide?

[00:38:55] Speaker 03:
Probably hundreds.

[00:38:56] Speaker 03:
Well, we don't know.

[00:38:57] Speaker 04:
Probably hundreds.

[00:38:58] Speaker 04:
Well, the problem is exactly the statement you're making.

[00:39:00] Speaker 04:
You're asking a question, how many?

[00:39:02] Speaker 04:
You're saying, probably.

[00:39:04] Speaker 04:
I mean, it's hard for the board to make a decision based on those kind of sort of

[00:39:11] Speaker 04:
assumptions or speculations.

[00:39:15] Speaker 04:
So the information is obtainable.

[00:39:19] Speaker 04:
You're talking about specific information.

[00:39:22] Speaker 04:
And the board didn't have that information before it, right?

[00:39:26] Speaker 03:
It did not, Your Honor.

[00:39:26] Speaker 03:
But I think it's a reasonable set of assumptions.

[00:39:31] Speaker 03:
If you know that you're talking about all of Eastern Massachusetts, if you know that you're talking about all of Los Angeles County, in addition to the other areas that were referenced in

[00:39:40] Speaker 03:
the admitted evidence, you have a very large number of agencies and governments with government employees together with their contractors.

[00:39:52] Speaker 03:
So our position is that that's a wide enough dissemination to constitute public accessibility.

[00:40:01] Speaker 03:
Thank you.

[00:40:03] Speaker 00:
Before you walk away, I want to say something.

[00:40:05] Speaker 00:
I'm sorry for being as sharp as I was with you.

[00:40:07] Speaker 00:
I have four small children.