[00:00:00] Speaker 02:
is number nineteen thirteen ninety-three and dual inc versus interactive games LLC good morning your honors may it please the court this appeal is limited to one claim out of the board's final written decision that is claimed six of the oh five eight patent uh... the board's decision decision as to that claim is found at appendix uh... pages forty one and forty two and

[00:00:28] Speaker 02:
It is our position, Your Honors, that the Board's decision in this case on the very narrow set of facts in this case violates both the APA and is substantively defective on the evidence.

[00:00:40] Speaker 02:
I'm going to start with the APA violation.

[00:00:44] Speaker 02:
The reason I say the facts of this case are unique is that I looked at the APA case law that is available from this course jurisprudence, and I find no set of facts that aligns with the severity of the unfair surprise that occurred here.

[00:01:00] Speaker 02:
The facts that are undisputed.

[00:01:03] Speaker 03:
What's the unfair surprise?

[00:01:05] Speaker 03:
The board just found your arguments insufficient and that you didn't meet your burden of proof to show that these were not obvious.

[00:01:13] Speaker 02:
Yes, your honor.

[00:01:14] Speaker 03:
And this is- What would you have the board do in these circumstances?

[00:01:19] Speaker 02:
Provide the parties with an opportunity to be heard and to make arguments on the- In what form?

[00:01:24] Speaker 02:
If the board is going to introduce on its own a factual premise on which it's going to rule, that has not been argued by any party- You had the obligation to go element by element.

[00:01:38] Speaker 00:
and the burden of both proof and persuasion to demonstrate that every one of those elements was present in the prior art, correct?

[00:01:45] Speaker 02:
That is correct, Your Honor.

[00:01:46] Speaker 00:
And you did that.

[00:01:47] Speaker 02:
We did.

[00:01:48] Speaker 00:
And the board turns out didn't think you did it and met the profanity of the evidence standard on one of the elements that you actually did it on.

[00:01:57] Speaker 02:
Yes, Your Honor.

[00:01:57] Speaker 00:
You actually did argue that the lookup table is disclosed in Carter, and you put forth your argument as to exactly where it was.

[00:02:05] Speaker 02:
Yes, Your Honor.

[00:02:06] Speaker 00:
And the board found it didn't meet the performance of the evidence standard.

[00:02:11] Speaker 02:
The board found that the expert declaration and the evidence we cited to end that expert declaration under the board's opinion, which was not supported by any contrary evidence or argument.

[00:02:22] Speaker 03:
Well, that's a different question.

[00:02:24] Speaker 03:
You can get to your lack of substantial evidence argument.

[00:02:27] Speaker 03:
But I am baffled by your APA argument, because it's your burden to show this.

[00:02:33] Speaker 03:
It is the board's role to do fact-finding.

[00:02:36] Speaker 03:
It is their role to look at the references you cited and determine whether the elements are disclosed.

[00:02:41] Speaker 03:
And the fact that you have an unrebutted expert declaration is not necessarily relevant if they think the prior art itself doesn't show it.

[00:02:50] Speaker 03:
They're the ones tasked with looking at it and making factual findings.

[00:02:54] Speaker 03:
Again, tell me how you would see this playing out if we found an APA violation.

[00:03:00] Speaker 03:
In what form would the board give you notice that it was going to reject

[00:03:05] Speaker 03:
your arguments and find that you'd made a burden of proof.

[00:03:09] Speaker 02:
And again, it's an unusual circumstance.

[00:03:11] Speaker 02:
No, no.

[00:03:11] Speaker 03:
Can you just answer my question?

[00:03:12] Speaker 02:
What for?

[00:03:13] Speaker 02:
Post opposition from the patent owner in the IPR proceeding, if no arguments are rendered that would draw a response from the petitioner, then the board, if they have concerns that were not expressed in the institution decision about a particular limitation, I believe the board should provide notice that can then be addressed.

[00:03:30] Speaker 03:
So you want the board, if you make arguments and the patent owner doesn't respond,

[00:03:36] Speaker 03:
You want the board to provide an advisory opinion that we're going to reject your arguments anyway before they actually reject them.

[00:03:44] Speaker 03:
At some point.

[00:03:45] Speaker 03:
Can you cite any single case that requires that?

[00:03:49] Speaker 00:
It's your burden of proof.

[00:03:50] Speaker 00:
In any area of law.

[00:03:52] Speaker 00:
Yes, Your Honor.

[00:03:53] Speaker 02:
I would cite the panel here.

[00:03:55] Speaker 02:
Excuse me.

[00:03:56] Speaker 02:
I would cite the court to SAS Institute versus ComplimentSoft.

[00:04:02] Speaker 02:
I'll give you a specific site.

[00:04:03] Speaker 02:
It's 825 F 3rd, 1341 at 1351.

[00:04:07] Speaker 02:
There, the board, without any argument from either party as to a claim construction issue, rendered a claim construction in the final written decision.

[00:04:20] Speaker 03:
That's entirely different, though.

[00:04:23] Speaker 03:
That's a new argument about a new claim construction that was never raised.

[00:04:28] Speaker 03:
Here, you point it to specific prior art references and said,

[00:04:32] Speaker 03:
these disclose all of the elements, the board looked at them and said, no.

[00:04:40] Speaker 03:
Unless you have some other novel way of doing it, it sounds like you think that when the board accepts an IPR and the patent owner doesn't challenge certain elements of the IPR, that the board is bound by that initial decision and can't change its mind on final decision.

[00:04:57] Speaker 03:
even though the final decision is the ultimate fact-finding, and you bear the burden of proof.

[00:05:03] Speaker 00:
And it's made under a different standard, evidentiary standard.

[00:05:06] Speaker 02:
It is.

[00:05:06] Speaker 02:
There's no question.

[00:05:07] Speaker 02:
The institution decision is not binding on the board.

[00:05:09] Speaker 02:
That's not our position.

[00:05:11] Speaker 02:
The position that we have presented is that there is a notice requirement.

[00:05:16] Speaker 02:
And I believe if the institution decision comes down and there is literally no development of the record on an issue, that it is a surprise when the board

[00:05:27] Speaker 03:
Well, it may be a surprise, but it still doesn't mean the board has to give you an advisory opinion.

[00:05:34] Speaker 03:
The patent owner doesn't have to file a response at all.

[00:05:37] Speaker 03:
They could institute.

[00:05:38] Speaker 03:
The patent owner could say, we waive our response.

[00:05:41] Speaker 03:
We're so confident that this patent is valid that we're not going to waste money responding.

[00:05:47] Speaker 03:
And the board can reject all of your arguments in your petition without giving you notice.

[00:05:53] Speaker 03:
Could it not?

[00:05:57] Speaker 02:
post-institution with no counter-development of the record whatsoever?

[00:06:02] Speaker 03:
The board's the ones that's looking at the record.

[00:06:04] Speaker 03:
You had your opportunity to make your arguments on the record.

[00:06:08] Speaker 03:
If they're insufficient, they're insufficient.

[00:06:10] Speaker 03:
You're basically asking for a second bite at the apple.

[00:06:15] Speaker 03:
Your second bite at the apple is here, so the board's fact findings

[00:06:19] Speaker 03:
are not supported by substantial evidence.

[00:06:21] Speaker 03:
And you may have decent arguments on that.

[00:06:24] Speaker 03:
I would suggest you move on and focus on that rather than some unheard of APA notice requirement that I've never seen in any area of administrative law.

[00:06:35] Speaker 02:
I will take your suggestion, Your Honor.

[00:06:38] Speaker 02:
On the substantial evidence side, here the board had in front of it substantial evidence in favor of the petition.

[00:06:49] Speaker 00:
It was question the question isn't whether they had substantial evidence in favor the position the question is is there substantial evidence to support what they found Which is that Carter doesn't disclose lookup table?

[00:07:00] Speaker 00:
That's correct your honor you're not whether you have substantial evidence is irrelevant You know how many cases I get in front of me where I think there is actually substantial evidence for the other fact-finding But that's not what I decide well I believe that it is relevant in the sense that the substantial evidence must be judged by viewing the record evidence It seems to me that the problem here with

[00:07:20] Speaker 04:
is that it really didn't address this as an obviousness case.

[00:07:26] Speaker 04:
It talks about the lookup table and the ordering and says it wasn't specifically disclosed in the prior art in connection with jurisdictional profiles, which would seem to be the wrong test, because that's an anticipation test.

[00:07:43] Speaker 04:
Or you put in evidence in the record that lookup tables and ordering by alphabet

[00:07:49] Speaker 04:
Were were common and they didn't find that they weren't common They just said well you haven't shown that they were common in connection with a jurisdictional profile Which doesn't seem to be the right way of looking at?

[00:08:03] Speaker 02:
That's correct your honor I think fundamentally the problem with the board's analysis here is that they required things even beyond that that weren't required by the claims specifically the board was asking us to demonstrate that

[00:08:16] Speaker 02:
The example we used, which was an alphabetical ordering of the list, that it would be obvious to use the alphabetical order.

[00:08:24] Speaker 02:
And we had not presented evidence that it would be obvious to do alphabetical ordering.

[00:08:27] Speaker 02:
We had presented evidence that it would be obvious to provide a list that was ordered.

[00:08:33] Speaker 02:
And we used alphabetical as an example of that.

[00:08:36] Speaker 00:
The claims require, here I have it up, a lookup table which contains an ordered list of locations and associated game configurations.

[00:08:45] Speaker 00:
And you argued Carter actually disclosed that.

[00:08:48] Speaker 00:
You didn't argue it was obvious.

[00:08:50] Speaker 00:
You argued Carter disclosed that.

[00:08:52] Speaker 00:
Is that correct?

[00:08:53] Speaker 02:
That is not correct.

[00:08:54] Speaker 02:
We argued that Carter disclosed a lookup table in a jurisdictional database that correlated jurisdictions with game configuration.

[00:09:03] Speaker 00:
And you didn't argue that that met the

[00:09:06] Speaker 00:
Expressly met the a lookup table which contains an order list of locations and associated game configurations limitation No, in fact in paragraph 117 of our experts declaration, which is that appendix?

[00:09:18] Speaker 02:
3806 We stated that Carter does not disclose storing the locations associated with the jurisdictional profiles in an ordered list that was where the obviousness analysis came in was in paragraph 117 of Mr.. Kitchen's declaration where he said

[00:09:35] Speaker 02:
A person having ordinary skill in the art would have understood that ordered lists were extremely well known as a way to organize information for many years prior to the 058 patent, citing to a series of references that he used to inform his opinion.

[00:09:51] Speaker 02:
It is that evidence that was not considered by the board, and inappropriately considered in the sense that they were requiring it.

[00:09:57] Speaker 00:
What makes you think it wasn't considered by the board?

[00:10:00] Speaker 02:
They didn't comment on Mr. Kitchen's.

[00:10:03] Speaker 00:
So you think the fact that they didn't cite it means it wasn't considered?

[00:10:06] Speaker 00:
Because I thought they rejected him, his testimony.

[00:10:12] Speaker 02:
I don't believe that they analyzed.

[00:10:13] Speaker 02:
I can't say what was in the minds of the board, but I can say that they didn't specifically address the statement by Mr. Kitchen that a person of ordinary skill in the art would have understood that ordering lists was extremely well known.

[00:10:32] Speaker 02:
Do you want to save the rebuttal from there?

[00:10:34] Speaker 02:
I do your honor, unless there's any other immediate questions I can answer I'll reserve the remainder of my time.

[00:10:41] Speaker 02:
Thank you.

[00:10:49] Speaker 04:
Thank you your honor.

[00:10:50] Speaker 01:
May it please the court.

[00:10:51] Speaker 04:
Would it be fair to say that a lookup table is an index to a database?

[00:10:56] Speaker 04:
Essentially that's what it is.

[00:10:57] Speaker 01:
I believe a lookup table is a specific

[00:11:02] Speaker 01:
Feature that can be used in a database that correlates two sets of data the index essentially Well your honor.

[00:11:10] Speaker 01:
I'm not I'm not a person skilled in the art.

[00:11:11] Speaker 01:
I'll take your Suggestion, I don't see a problem with record doesn't define it as such I'm sorry record doesn't define it.

[00:11:19] Speaker 04:
It does not wait, but so what the board did here it seems to me is to fault the petitioner for not bringing in evidence that

[00:11:30] Speaker 04:
uh... lookup table was specifically associated with jurisdictional profiles.

[00:11:34] Speaker 04:
He uses the word specifically here at least a couple of times on page 41.

[00:11:41] Speaker 04:
But that's not what's required.

[00:11:42] Speaker 04:
You don't have to show that a lookup table in the prior art had been used for a jurisdictional profile.

[00:11:50] Speaker 04:
What they were saying was that lookup tables were a common way

[00:11:55] Speaker 04:
uh... indexing databases and the board doesn't seem to really address that question whether that was a common way of doing it and whether and ordering the lookup table was also common they don't really address that question

[00:12:10] Speaker 01:
Your honor, that was not the argument that FanDuel made.

[00:12:13] Speaker 01:
The argument that FanDuel made was that Carter actually did disclose the use of lookup tables with jurisdictional profiles.

[00:12:22] Speaker 01:
And the only limitation that was missing, according to FanDuel's argument, was doing so in an ordered list, which is why they brought in the tertiary teaching of the slot payout web page.

[00:12:34] Speaker 01:
That was their argument.

[00:12:35] Speaker 01:
That's the way they presented the evidence to the board.

[00:12:39] Speaker 04:
And their experts cited several publications that recognized that lookup tables are common.

[00:12:50] Speaker 04:
I disagree, Your Honor.

[00:12:51] Speaker 04:
They've been common for decades.

[00:12:52] Speaker 01:
I disagree, Your Honor.

[00:12:53] Speaker 01:
Their expert in paragraph 116 simply cited the exact same.

[00:13:00] Speaker 00:
Where in the appendix?

[00:13:01] Speaker 01:
I'm sorry.

[00:13:01] Speaker 01:
That's appendix page 3806.

[00:13:03] Speaker 01:
That's volume 2.

[00:13:12] Speaker 01:
Their expert, with respect to the teaching of Carter, simply repeated the same one-sentence conclusory attorney argument that was contained in FanDuel's petition.

[00:13:24] Speaker 01:
And they say, their expert says, Carter's jurisdictional profiles are stored in a database which, quote, may employ dot dot dot lookup tables and the like.

[00:13:36] Speaker 01:
And they cite Carter at paragraphs 20 and 31.

[00:13:40] Speaker 01:
There is no additional argument or evidence from their expert that lookup tables were common, that it would have been obvious to use it in this fashion.

[00:13:49] Speaker 01:
He is making a specific.

[00:13:50] Speaker 04:
If you look at footnote three, they talk about this introducing each EPS used lookup tables.

[00:13:57] Speaker 04:
I mean, that's just a command in the HTML, right?

[00:14:04] Speaker 04:
That's what the footnote is saying.

[00:14:06] Speaker 01:
Your Honor, which footnote?

[00:14:08] Speaker 04:
It's on page 3807.

[00:14:13] Speaker 01:
Your Honor, they're referring to ordered lists here.

[00:14:18] Speaker 01:
So this footnote is getting to a different point.

[00:14:21] Speaker 04:
The claim... Well, the footnote refers to lookup tables.

[00:14:25] Speaker 04:
And I think if you look at that reference, it says that in HTML, that's a standard command, lookup tables.

[00:14:36] Speaker 04:
Your honor again, they're talking about ordered lists, which is a different limitation that the claim requires Okay, but look in your brief you talk about how important it is for the board to apply its own expertise right and the reason these cases are not heard by plucking somebody off the street is that you have board members were supposed to understand the Feel that they're involved in

[00:15:01] Speaker 04:
And I don't see the board here bringing to bear its expertise on this issue, which presumably would include the fact that lookup tables were standard, that ordering them was standard.

[00:15:16] Speaker 04:
And they just say, oh, well, you didn't show that it was disclosed in connection with jurisdictional profiles.

[00:15:21] Speaker 04:
That doesn't seem to me to be what their job is.

[00:15:26] Speaker 00:
Your Honor, the... Just out of curiosity, Mr. Barney, is it your view, this is an IPR, correct?

[00:15:31] Speaker 01:
That's correct.

[00:15:32] Speaker 00:
Is it your view that when the appellant doesn't argue that lookup tables are common, when an expert doesn't say lookup tables are common, that it is the board's job to fill in a missing limitation in a claim with its own expertise in an IPR, which the Supreme Court said the confines of which is governed by the petition as argued?

[00:15:53] Speaker 01:
My understanding, Your Honor, is that the board is actually precluded from doing that, and that this court has already.

[00:15:59] Speaker 00:
That is something you could do on regular examination, of course, during a regular examination.

[00:16:03] Speaker 00:
But an IPR is an adjudication, correct?

[00:16:06] Speaker 01:
That's correct, Your Honor.

[00:16:08] Speaker 01:
So my understanding is that the board is not allowed to essentially step into the shoes of the petitioner and make arguments on behalf of the petitioner that the petitioner didn't actually.

[00:16:18] Speaker 04:
If you thought they didn't do their job,

[00:16:20] Speaker 04:
with respect to the lookup table and the order combination, how was it that you didn't bother to raise that point before the board?

[00:16:28] Speaker 01:
Your Honor, the tactical decisions made during the IPR cannot address specifically why those tactical decisions were made.

[00:16:38] Speaker 01:
But the petitioners had the burden of proving obviousness by preponderance of the evidence.

[00:16:45] Speaker 01:
The commission, excuse me, the board

[00:16:48] Speaker 01:
made clear in the institution decision that the institution decision was merely preliminary and that- It didn't have a piece of prior art that they pointed to, which was Carter that said use lookup tables.

[00:17:00] Speaker 04:
Your Honor, Carter- It didn't specifically associate it with the jurisdictional profile, but why does it have to do that to be obvious?

[00:17:10] Speaker 01:
It's possible that they could have made a different argument than the one they made.

[00:17:13] Speaker 01:
The argument they made was that Carter discloses the use of lookup tables with jurisdictional profiles, and the only thing missing was doing so in an ordered list, which is why they went to a tertiary reference, the slots payout web page.

[00:17:28] Speaker 01:
That was their argument, and that's what the board was asked to analyze.

[00:17:32] Speaker 01:
And to support that argument, they pointed to paragraphs 20 and 31 of Carter.

[00:17:37] Speaker 01:
And when the board, upon the full developed record, looked at paragraph 20 and 31, which is what their expert pointed to, the board found that it did not support that proposition.

[00:17:48] Speaker 01:
Paragraph 20 only said it used the word lookup table generally and for an unspecified purpose.

[00:17:55] Speaker 01:
And then paragraph 31 says nothing about lookup tables.

[00:17:57] Speaker 01:
And in fact, if you look at paragraph 31, it talks about storing jurisdictional profiles.

[00:18:03] Speaker 03:
Is the problem here that this is just so obvious that they didn't

[00:18:06] Speaker 03:
actually bothered to fill in the evidence and the board caught them on that because it's a failure of proof.

[00:18:13] Speaker 03:
I mean, look up tables as I understand it.

[00:18:15] Speaker 03:
And again, you heard I'm not a science person, but they seem pretty well known in the art and to do them for this kind of thing seems like they could have gotten an expert to testify very quickly, but they didn't.

[00:18:28] Speaker 03:
And so the board said you didn't connect look up tables with this jurisdictional profile.

[00:18:34] Speaker 03:
In the art and nobody would have known to do that I mean I find these lack of of you know our non-obviousness findings based upon a lack of showing and then looking of whether there's a lack of substantial evidence Difficult because we're looking at basically double negatives the board right that there's nothing out there and how do we determine that when what we're looking for is a lack of evidence, but Isn't that really just the case here that there's no?

[00:19:05] Speaker 03:
They didn't provide specific evidence on that combination and the board found that they did it.

[00:19:10] Speaker 01:
I think I agree with most of what you said.

[00:19:12] Speaker 01:
I don't agree that I know you don't agree that it's obvious, but I think the rest of what you said is correct.

[00:19:17] Speaker 03:
And I will point out if they've had an expert declaration that said, even if you disagree with it, if instead,

[00:19:25] Speaker 03:
If they had an exploration that said, look up tables are obvious, or they're well-known at, not obvious, that's the legal term.

[00:19:32] Speaker 03:
Look up tables are well-known in the art.

[00:19:34] Speaker 03:
They're used for all kinds of things.

[00:19:36] Speaker 03:
And a skilled artisan would have understand that they can be used for this kind of jurisdictional thing.

[00:19:41] Speaker 03:
That would be the type of evidence that would, what the board could have relied on.

[00:19:46] Speaker 01:
I think that's fair to say.

[00:19:47] Speaker 04:
But that's not there.

[00:19:48] Speaker 04:
But maybe it is there.

[00:19:49] Speaker 04:
I don't think your characterization of what they said is accurate in the sense

[00:19:54] Speaker 04:
that their sole argument was that Carter shows lookup tables in connection with jurisdictional profiles.

[00:20:01] Speaker 04:
I think if you look at page 3806, they refer to Carter and say that this shows the general use of lookup tables.

[00:20:10] Speaker 04:
It doesn't say that it necessarily associates it with jurisdictional profiles.

[00:20:15] Speaker 04:
It just says lookup tables are something that you can use.

[00:20:21] Speaker 01:
Your Honor, I think their argument, even in their brief to this Court, is that they argued that Carter discloses the use of lookup tables specifically with jurisdictional profiles, and that the only missing limitation for purposes of obviousness was an ordered list, which is why they went to a tertiary reference for that.

[00:20:44] Speaker 01:
And that's certainly the way the board read it, their argument, and that's the way we understood their argument.

[00:20:49] Speaker 01:
I believe that's what they argued in their brief here on appeal, is that they believed Carter did disclose the use of jurisdictional profiles with a lookup table.

[00:20:58] Speaker 01:
But that's not what Carter discloses.

[00:21:00] Speaker 01:
It only discloses

[00:21:01] Speaker 01:
lookup tables generally for an unspecified purpose, and it doesn't tie it together.

[00:21:05] Speaker 04:
So that's the point.

[00:21:06] Speaker 04:
It does disclose lookup tables generally for an unspecified purpose, which is what the board said.

[00:21:11] Speaker 04:
So the question is whether it would be within the skill of someone in the art to combine lookup tables with jurisdictional profiles, which is an issue, which, as I read the board's decision, they haven't addressed.

[00:21:23] Speaker 01:
Your Honor, I respectfully disagree.

[00:21:25] Speaker 01:
They addressed it under the context of the argument that was presented to them.

[00:21:29] Speaker 04:
In fact, if you look at- They only addressed it in connection with there's no showing of use of lookup tables in connection with jurisdictional profiles.

[00:21:37] Speaker 04:
This is on page 41.

[00:21:39] Speaker 04:
This does not disclose that the jurisdictional profiles specifically employ lookup tables.

[00:21:45] Speaker 04:
That's right.

[00:21:46] Speaker 01:
That's not the right test, right?

[00:21:48] Speaker 01:
Well, Your Honor, but that was the basis of their obviousness argument, that Carter disclosed lookup tables specifically with jurisdictional profiles.

[00:21:58] Speaker 01:
Their bar thereby satisfying part of claim six and then the rest of things if we conclude that the argument went beyond that this was wrong Orderless don't forget orderless.

[00:22:08] Speaker 01:
I don't think so your honor there's two things there's jurisdiction or profiles

[00:22:13] Speaker 01:
There's the requirement of a lookup table and the requirement of an ordered list.

[00:22:17] Speaker 01:
The board actually found neither of those.

[00:22:19] Speaker 01:
That would solve the lookup table.

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

[00:22:23] Speaker 04:
That would solve the lookup table problem, but you're saying it wouldn't solve the ordered list problem.

[00:22:26] Speaker 01:
That's correct.

[00:22:27] Speaker 01:
Because the board found that their expert's opinion on the ordered list was conclusory and based on hindsight.

[00:22:34] Speaker 00:
And to be clear, they didn't make the argument on the lookup table that Judge Dyke is articulating now.

[00:22:38] Speaker 00:
That's correct, Your Honor.

[00:22:39] Speaker 00:
They did not.

[00:22:42] Speaker 01:
Okay.

[00:22:43] Speaker 01:
Thank you.

[00:22:44] Speaker 01:
Thank you.

[00:22:48] Speaker 02:
I believe fundamentally what the board did was treat this as an anticipation rejection as opposed to giving full consideration to the

[00:23:05] Speaker 02:
Obviousness analysis it was presented in our petition and supported by expert testimony And the board is your expert testimony that say lookup tables are well The experts testimony noted that The lookup table was mentioned in Carter itself It's also in that doesn't say it's well known in the art.

[00:23:30] Speaker 02:
It just says it's mentioned in 38

[00:23:34] Speaker 03:
Here's the real problem.

[00:23:35] Speaker 03:
You didn't present the right theory, and you didn't present the right evidence to support that theory.

[00:23:41] Speaker 03:
I mean, Carter discloses most of this.

[00:23:43] Speaker 03:
I think you get the other thing from that gaming page.

[00:23:46] Speaker 03:
But there's no testimony from your expert that says a skilled artist would have looked at all of this and found these obvious.

[00:23:53] Speaker 03:
You had a different, more narrow theory that the board rejected, that Carter disclosed basically everything except the ordering.

[00:24:01] Speaker 03:
And even if I agreed with you on the ordering and that they improperly ignored that other piece of art, you still didn't disclose.

[00:24:10] Speaker 03:
I mean, there's still evidence to support the notion that Carter doesn't specifically disclose lookup tables with jurisdiction.

[00:24:18] Speaker 03:
You should have had an expert that said, even if Carter doesn't specifically disclose this, a skilled artisan would understand that lookup tables can be used to do this.

[00:24:30] Speaker 03:
But you didn't, did you?

[00:24:31] Speaker 02:
I think that's exactly what we have.

[00:24:33] Speaker 03:
But where is it that your expert says that?

[00:24:37] Speaker 02:
To understand this combination of what was happening here.

[00:24:40] Speaker 02:
The Carter reference in paragraph 31, it discloses a database, a database that does the correlation, the correlation between jurisdictions and the gaming configurations.

[00:24:52] Speaker 02:
So that's in paragraph.

[00:24:53] Speaker 03:
It sounds like you're going to launch down a factual argument that's going to make me try to understand it for the first time,

[00:25:00] Speaker 03:
rather than point to expert testimony saying in specific words what the theory I just articulated was.

[00:25:07] Speaker 02:
I can show you, Your Honor, in paragraph 116.

[00:25:11] Speaker 03:
What page?

[00:25:12] Speaker 02:
3806 of the appendix.

[00:25:18] Speaker 03:
That's the same page we've been looking at, right?

[00:25:21] Speaker 02:
It is.

[00:25:23] Speaker 02:
And I want to explain what the expert was saying here.

[00:25:27] Speaker 03:
See, again, you can't explain the expert saying something.

[00:25:32] Speaker 03:
You have to show the expert saying something.

[00:25:35] Speaker 02:
I will, Your Honor.

[00:25:36] Speaker 02:
In paragraph 116, the sentence that begins, it's four lines down, Carter's jurisdictional profiles are stored in a database.

[00:25:44] Speaker 02:
That's paragraph 131 of Carter that's cited there.

[00:25:47] Speaker 03:
Yeah.

[00:25:48] Speaker 02:
And Carter separately says in paragraph 20 that it can employ lookup tables.

[00:25:55] Speaker 02:
That from the perspective of one of ordinary skill in the art is a teaching that the lookup tables that are known in the art.

[00:26:02] Speaker 03:
That would be helpful if that actually said what you just said following up explaining that.

[00:26:10] Speaker 03:
But I'm not taking your word for what a skilled artist would say, and you're now reading between the lines of what this paragraph actually said.

[00:26:21] Speaker 03:
I think I probably entirely agree with you from my completely unscientific perspective, but that's not my job.

[00:26:29] Speaker 02:
And then in the last sentence of paragraph 116, the expert Mr. Kitchen stated, therefore, Carter in view of Walker

[00:26:37] Speaker 02:
teaches a lookup table containing locations and associated game configurations.

[00:26:42] Speaker 02:
That was the expert's conclusion based upon the expert's understanding of what the art teaches.

[00:26:47] Speaker 02:
And I believe, in closing, Your Honor, that the board substituted its own understanding for that testimony without any supporting evidence to contradict what we put forward in our petition.

[00:27:00] Speaker 02:
And with that, if there are no further questions, I will cede the remainder of my time.

[00:27:05] Speaker 04:
Okay, thank you.

[00:27:05] Speaker 04:
Thank both counsel.

[00:27:06] Speaker 04:
The case is submitted.