[00:00:00] Speaker 03:
Our last case this morning is software versus Apple and Motorola Mobility, 2023, 10-06, and 10-08.

[00:00:13] Speaker 03:
Mr. Burnett again.

[00:00:14] Speaker 02:
May it please the court.

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This case presents issues of first impression, including considerations of applicants admitted prior art in the inner party's re-examination, and whether a board, in effectively substituting itself on behalf of a third party requester,

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may enter or adopt a new ground of rejection under 37 CFR section 41.77, comprising a repackaged version of a ground proposed by the three-part that was properly not adopted by the examiner as barred under 37 CFR 41.67C16.

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In addition, in view of the board's

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Rejection is wholly lacking substantial evidence.

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At Pelley's attempt to introduce evidence, the board did not cite in its decisions and asserts positions and justifications that were not taken by the board.

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That evidence and counsel's post-hoc rationalizations for agency action cannot be considered in this appeal under Shinnery, Burlington, truck lines, and other cases.

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So first, I'd like to briefly address the APA, applicant submitted priority.

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The grounds for rejection in an inter-party re-examination do not include

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applicants submitted prior art, which is not a printed publication, as this court held in a similar case involving use of an applicant's submitted prior art in an IPR.

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And in that case, it was Quantum Inc.

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versus Apple Inc.

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It said, prior art consisted of patents

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Printed publications under 311B, such that they may form the basis of a ground-inner part is review.

[00:02:09] Speaker 03:
How about the other ground of rejection?

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OK.

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The HTML4.0?

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Yeah.

[00:02:15] Speaker 02:
OK.

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So one more brief comment about AAPA.

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The AAPA is a Mozilla rendering engine, which is source code, which is not a printed publication.

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That should end the inquiry right there.

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a reference or something in the prior art can be used as background without it being technically a reference.

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I understand that here the board at one point at least specifically identified Missella as a reference.

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So that seems to cut against them in background.

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Wouldn't it be sufficient if they were to characterize it unambiguously as background information?

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and not use it as a reference.

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They could characterize it as background information.

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But they also denominated it.

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They said it's the basis.

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You would have to use it as a basis.

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So switching to HTML4 and CSS.

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But you would agree that they could characterize it.

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If they characterized it and used it as the background information, that would be fine, right?

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It would be they could they could do so.

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I'm not sure exactly how what they would use for it, but

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Regardless, that's not what they did.

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So moving forward to the second new ground, HTML4.

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So they proposed that claims directed to preserving layout aspects relating to cascading style sheets, CSS, is taught by the HTML4.0 specification.

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So the HTML 4.0 specification, which is volume B, and it is

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370 odd pages, or excuse me, 350 pages, including the glossary at the end.

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And there is a section, section 14, called style sheets.

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And it discusses style sheets, does not provide any information on how style sheets are implemented.

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Style sheets, the specifications for implementing style sheets are separate specifications.

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And those are in appendix VI6.

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And they include CSS1 and CSS2.

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CSS2 is much more comprehensive than CSS1.

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There are certain tags in HTML4 that require CSS2, which are related to tables.

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Sophie's position is that nobody even great skill in the art can implement CSS claims requiring preservation of CSS aspects of the code based on the HTML4

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specification.

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And this issue has already been before the court in an ex parte re-examination where claims 29 were found patentable over the art.

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And in fact, under that case is a 994 ex parte re-examination

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The board reversed the examiner on claim 29 based on evidence that was provided in the declaration by Wolf, Scott Collins.

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And in this re-examination and declaration provided by Wolf, and now I'm referring to the gray brief, page 26,

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In the rebuttal brief, referencing Wolf, and this is at appendix 2254 through 2255, Wolf asserted,

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Afasida in 2000-2001 could not have modified Paa++ to implement the numerous unsupported HTML elements to produce an HTML 3.2 browser, much less an HTML 4.1 browser.

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Afasida in 2000-2001 would also not attempt to write original

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code to support HTML4, CSS1, or CSS2.

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There would be no chance that such an attempt would have succeeded without undue experimentation.

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It took a team of highly skilled developers and software engineers 50-plus man-years to develop the first version of GECO, that's the code name for Mozilla's rendering engine, that was released in the commercial web browser, Nascade Navigator 6, November 2000, and as Wolf alluded to in an ARS technical article,

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It would have been insane for Apple to have written rendering engine from scratch.

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And SOFU argues that there is no evidence whatsoever on the record that FASCEDA could have taken the HM04 specification and modified

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the browser in that N++ had and would have had any motivation to do so, would have had any reasonable expectation of success.

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Also, the PDAs of record are in the peer communicator, a Palm 7 and an Apple Newton, and those have wholly insufficient memory to even

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even put the operating system you need for PAD++, which would be Linux or Unix.

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And just by itself, and now you're talking about adding a rendering engine that's supporting HTML4, and at least some level of CSS, because the claims require CSS.

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I mean, it's just not rational.

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There's no evidence of record that the board points to to support its conclusion that this could be done merely that it suggested we can do this so a façade could do it.

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So I'd like to move on to claims 64 and 66.

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And so briefly part of the argument here is that the examiner and the board show evidence in this TOR document, which was a web page, that shows a zoomed out view and a zoomed in view.

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And in particular, that is those views are shown on Bluebrief pages 76 and 77.

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Now the way that this worked is that you press down a middle button or right, I think it's the right button, you press down to zoom in and the zoom would interactively zoom in and so you see, oh I've zoomed in how much I want and then it stops.

[00:10:04] Speaker 02:
And there's no evidence of this being done in response to tapping.

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And the examiner has not indicated that it's done in response to tapping.

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In fact, the examiner argues that the claim isn't limited to only tapping.

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And SOFU argues otherwise that it is in response to tapping that it has to do the zoom.

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It can't do manual zooming after the tapping operation and meet the claims.

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Now another thing that the board argues is that because the claims don't specify, don't have the words bounding box in the claims, that somehow this could be implemented without a bounding box for a column or a paragraph.

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Fundamental to any graphical user interfaces you need

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bounding box for all the input objects or items that you're going to interface with.

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Otherwise, the system doesn't know what it is that you're tapping on.

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You need a bounding box.

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They don't explain how you could do it without it.

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And there's no argument that pad++ couldn't interpret columns.

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And as we saw you presented, the way pad++ handled paragraphs is it would take a paragraph, it'd see a paragraph tag, and it would start creating individual text items one line at a time.

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And so it never created a bounding box for a paragraph.

[00:11:39] Speaker 03:
You're about to get into your rebuttal time.

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You can continue or save it as you wish.

[00:11:44] Speaker 02:
I'll save it.

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Mr. Sagdea, was it?

[00:11:58] Speaker 01:
Yes.

[00:11:59] Speaker 01:
Thank you, Your Honor.

[00:12:01] Speaker 01:
I may please the court.

[00:12:02] Speaker 01:
This is Softu's third attempt at this court to defend the claims of the 926 patent.

[00:12:08] Speaker 01:
But Softview's arguments have no more merit than those that this court rejected in 2015 and 2021.

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There's no single issue with which Softview can secure reversal or remand.

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Instead, Softview's appeal fails for multiple independent reasons.

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For example, Rule 42.73 estoppel allows this court to affirm the board on all claims without reaching any other issue.

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And even putting aside regulatory estoppel,

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the court still doesn't need to reach many of Softview's arguments.

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For example, Softview's challenge to the board's New Ground 2 rejection is essentially factual, and Softview has not shown the New Ground 2 rejection to lack substantial evidence.

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By affirming on New Ground 2, the court need not reach any of Softview's New Ground 1 arguments, including Softview's admitted prior art challenge.

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The court should similarly reject Softview's fact-bound challenge regarding claims 64 and 66 because substantial evidence supports the board's rejection of those claims.

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Regarding New Ground 2, Softview takes issue with the board's factual findings pertaining to Pad++ and the HTML4 standard.

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But the board explained at Appendix 38 that in a single printed publication, the HTML4 standard

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provides information with respect to both HTML documents and the improvement of HTML document appearance using cascading style sheets.

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The board similarly explained at appendix 39 that because pad++ describes itself as an HTML browser and the HTML4 standard relates to the same markup language, the reference's teachings are compatible, such that a person of skill in the art would have had a reasonable expectation of success in combining them.

[00:14:02] Speaker 01:
The board therefore had substantial evidence from which defined claims 29 and 78, unpatentable.

[00:14:12] Speaker 01:
Unless the board has any questions.

[00:14:15] Speaker 03:
We're not the board.

[00:14:16] Speaker 01:
Sorry.

[00:14:17] Speaker 01:
Unless the court has any questions, appellees Apple and Motorola respectfully request that this court affirm the board.

[00:14:26] Speaker 03:
No one ever loses points by not using up all their time.

[00:14:31] Speaker 03:
But you do lose points calling us the wards.

[00:14:34] Speaker 03:
Apologies, Your Honor.

[00:14:36] Speaker 01:
I should have known better.

[00:14:38] Speaker 03:
Thank you, Mr. Seggdale.

[00:14:40] Speaker 01:
It's my first time.

[00:14:42] Speaker 03:
Mr. Paredes, for a couple of times.

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First, regarding CFR 42.73 D3I, this was argued extensively in the oral hearing

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for the appeals for this particular appeal here.

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And during those oral hearings, the board was hinting, hey, we're going to go and we're going to apply this here.

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Sofew presented evidence of why it doesn't apply.

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The board ultimately didn't apply it.

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So the board's already considered and said it's not there.

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It was also not raised on cross appeal to this court.

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So it's not applicable and it wasn't raised by appellees.

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Second, with respect to HTML4, first of all, there was never a standard HTML 1.0.

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When Pad++ with Ben Peterson and his cohorts were working on Pad++, at that same time, HTML 2.0 was being developed by Netscape and by Microsoft.

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And then in August of 1995, it was the first HTML standard to issue Pad++ by 1998.

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didn't even approximate supporting HTML 2.0 and in 1998 Ben Peterson acknowledged they abandoned using the path++ browser because the web had advanced greatly between 1995 and 1998 and they didn't want to compete with the browser companies such as Netscape and

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and Microsoft.

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Also, the difference in terms of what would be necessary to implement HTML4 and with CSS, you'd have at least CSS1 in there for the claim.

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Cat++ had 5,000 lines of code.

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Mozilla's rendering engine had on the order of a million lines of code.

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Mozilla is testified by Wolf, took 50 plus man years to implement this.

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Microsoft had just even worse problems implementing the CSS box model, which is fundamental to CSS, as documented on the Wikipedia page that's cited in the briefs.

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Whereas they couldn't even get the box model to work until probably the first version they had it working right was in Internet Explorer 6.0 in August of 2001, but they had great difficulties as well.

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And Safi argues that there's no evidence whatsoever, no substantial evidence that a person of ordinary skill in the art at the time of the invention

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could have looked at the HTML4.0 specification, could have looked at the pad++ references, and could have implemented on a mobile device a browser that supported HTML4 and at least CSS1.

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as the claims require CSS.

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And I finally want to note that the CSS in the claims is cascading style sheets per CSS 1 and CSS 2.

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It's not just something that is a cascading style sheet.

[00:18:48] Speaker 03:
Council, as you can see, your time has expired.

[00:18:51] Speaker 03:
And we will take the case under submission.