[00:00:00] Speaker 03:
The first case is Content Nexus.

[00:00:03] Speaker 03:
I guess it was once Personalized Media versus Stewart, 2023, 1165, and 1166.

[00:00:12] Speaker 03:
Mr. Scott.

[00:00:14] Speaker 01:
Good morning, Your Honor.

[00:00:16] Speaker 03:
Good morning.

[00:00:19] Speaker 01:
The basic issues in this case deal with two specific categories.

[00:00:27] Speaker 01:
One is whether the

[00:00:30] Speaker 01:
patent owner is able to claim the benefit of an earlier application.

[00:00:34] Speaker 01:
There are two applications in this case.

[00:00:36] Speaker 01:
One filed in 1987 and one in 1981.

[00:00:40] Speaker 01:
If, in fact, the patent owner may claim the benefit for the claims in issue to the 81 case, the prior art is removed because it's too late.

[00:00:58] Speaker 03:
But the disclosure with respect to programming in each of the two applications is different.

[00:01:04] Speaker 03:
It is broader in the second application.

[00:01:07] Speaker 01:
Well, I don't think that's exactly correct, Your Honor.

[00:01:14] Speaker 01:
What happened is, in the first case, there are specific disclosures

[00:01:22] Speaker 01:
Well, there's a definition in the abstract.

[00:01:26] Speaker 01:
Now, putting aside whether a definition in the abstract is controlling or not, that definition says programming is anything received through television or radio which is intended to entertain, instruct, or inform.

[00:01:45] Speaker 03:
But that's analog, right?

[00:01:48] Speaker 01:
Excuse me?

[00:01:49] Speaker 03:
That's analog, not necessarily digital.

[00:01:52] Speaker 01:
The digital, the 81 application also discloses the use of digital television in figures 4C through D. And it's specifically called out on the basis of the fact that you decrypt the, the disclosure is made that you can save decryption time

[00:02:20] Speaker 01:
by decrypting only the video and not the audio.

[00:02:25] Speaker 01:
So there is, within the specification, clear support for each thing which the government has said is not disclosed in the 81 case.

[00:02:39] Speaker 01:
I mean, specifically, the disclosure of controlling the environment in the home on the basis of downloaded information,

[00:02:50] Speaker 01:
There's a disclosure of simulcast.

[00:02:54] Speaker 01:
There's a disclosure of control of copyrighted material.

[00:03:02] Speaker 01:
There's a disclosure of all aspects of programming that are shown in the 87 case or shown in the 81.

[00:03:15] Speaker 02:
The definition you read to us in the term programming refers to everything.

[00:03:20] Speaker 02:
That's from the 1987, correct?

[00:03:23] Speaker 01:
No, there's also a reference to that in the abstract of the 1981 case.

[00:03:29] Speaker 02:
To everything?

[00:03:32] Speaker 01:
I'll quote it to you.

[00:03:33] Speaker 01:
Programming means everything transmitted over television and radio intended for communication of entertainment or to instruct or inform.

[00:03:43] Speaker 02:
I thought that was from 1987.

[00:03:45] Speaker 01:
No, no, no.

[00:03:46] Speaker 01:
It's in the abstract of the 1981 case.

[00:03:48] Speaker 02:
Can you give me a page so I can find it?

[00:03:53] Speaker 01:
Let's see.

[00:03:54] Speaker 01:
I don't have the specific, but it's on the first page of the 04-1 patent in the appendix.

[00:04:06] Speaker 01:
I mean, I will provide that after the argument.

[00:04:12] Speaker 03:
You can provide it on rebuttal.

[00:04:14] Speaker 03:
Excuse me?

[00:04:15] Speaker 03:
You can provide it on rebuttal.

[00:04:18] Speaker 01:
All right, I will.

[00:04:20] Speaker 01:
Now, the point here is that with respect to programming, I mean, the word is used in this specification numerous times to imply all different kinds of activity that can be used with the processor of the invention.

[00:04:42] Speaker 01:
Now, I just do not understand how, in fact, everything that the government has said is missing, I think we have shown is present there.

[00:04:58] Speaker 01:
And therefore, I think there's no question that programming is fully supported in the 81 case.

[00:05:05] Speaker 01:
Now, the second question in terms of priority is whether or not

[00:05:12] Speaker 01:
the 81 case discloses a data channel unaccompanied by analog information.

[00:05:22] Speaker 01:
Now, in this case, there's a specific disclosure of a data channel in figure

[00:05:43] Speaker 01:
Yes, in figure 6C.

[00:05:49] Speaker 01:
And what it shows there is a specific data channel used to download a recipe that's going to be presented on a printer at the time that the show is showing how to make the recipe or how to perform

[00:06:12] Speaker 01:
the steps of the recipe.

[00:06:14] Speaker 01:
Now, what the government has said is that this data channel comes from a multi-channel cable which has its analog data and adjacent channels.

[00:06:38] Speaker 01:
The whole idea in radio and television communication of having a channel which is focused on a specific frequency with a bandwidth is to allow either over the air or by cable or by optical means any, allow you to focus on a particular channel

[00:06:59] Speaker 01:
and get only the information which is shown on that or found on that channel.

[00:07:06] Speaker 01:
So to say that the fact that the channel is adjacent to other channels that have analog information is inconsistent with the terms of the claim.

[00:07:18] Speaker 01:
Now the second aspect of this is that reference is made to analog coding

[00:07:27] Speaker 01:
that allows the carrier to be demodulated so that the digital information can be displayed.

[00:07:38] Speaker 01:
Now, these are analog signals, but they're not information.

[00:07:45] Speaker 01:
Basic information theory is that the carrier is the conduit, and the information is what's carried.

[00:07:55] Speaker 01:
I really don't see how you can say that an analog pulse on a carrier is information.

[00:08:10] Speaker 03:
But they are non-digital, right?

[00:08:12] Speaker 01:
What?

[00:08:12] Speaker 03:
They are non-digital.

[00:08:15] Speaker 01:
Well, but they're not information.

[00:08:18] Speaker 03:
The claim says unaccompanied by any non-digital.

[00:08:22] Speaker 03:
You say they're not information.

[00:08:24] Speaker 01:
It says non-digital information.

[00:08:30] Speaker 01:
A non-digital information transmission.

[00:08:35] Speaker 01:
OK.

[00:08:37] Speaker 01:
The coding on the carrier is not information.

[00:08:42] Speaker 01:
It's the method by which the information is carried.

[00:08:51] Speaker 01:
Really, it's kind of like saying that

[00:08:55] Speaker 01:
that the vehicle is the passengers, right?

[00:08:59] Speaker 01:
I mean, you get on the bus, and you are a passenger, but the fact that you're on a bus, the bus is inanimate.

[00:09:10] Speaker 01:
It's what's being carried that's the information.

[00:09:13] Speaker 01:
That's basic information theory I learned in engineering school years ago.

[00:09:20] Speaker 02:
Excuse me.

[00:09:21] Speaker 02:
Is this argument clay construction or how to read the prior art?

[00:09:26] Speaker 01:
It is construction of the claim so that it can be shown to be present in the earlier application.

[00:09:38] Speaker 02:
Because I think the argument from the other side is that the board applied a construction that you yourself endorsed.

[00:09:44] Speaker 02:
Is that correct?

[00:09:46] Speaker 01:
No, I don't think that's correct.

[00:09:48] Speaker 01:
That goes to the question of the remand and what is really an issue in this case.

[00:09:58] Speaker 01:
And what happened in this case, of course, is that it was appealed, and it was at this court at the time of the Arthex Supreme Court case.

[00:10:11] Speaker 01:
And it was remanded to the commissioner, I mean, rather to the rector, excuse me, and for the sole purpose of allowing us to file a director review, which we did.

[00:10:29] Speaker 01:
the director vacated the decisions and directed the board to consider not only to consider the claim construction techniques and foldings in a related case on a patent that has the same disclosure as this one.

[00:10:55] Speaker 01:
As a result of that, we made

[00:10:59] Speaker 01:
an argument and submission on the basis of an order that the board entered allowing us to argue each of these points.

[00:11:10] Speaker 01:
I don't think anything that we said in the prior proceeding before the remand can bind us at this stage.

[00:11:19] Speaker 02:
One other thing, you talk a lot about tower oasis in your brief and you say somehow

[00:11:25] Speaker 02:
the board acted inconsistent with Power Oasis.

[00:11:28] Speaker 02:
What is the error that you see?

[00:11:30] Speaker 01:
All right.

[00:11:31] Speaker 01:
In Power Oasis, what was done was that there was an embodiment first disclosed in the second application.

[00:11:45] Speaker 01:
And the question that Power Oasis was contending, that this new embodiment was somehow

[00:11:55] Speaker 01:
And the definition of that new embodiment and that new term was found in the earlier case.

[00:12:03] Speaker 01:
And this court held correctly that if there was no disclosure related to that whatsoever, then they were only entitled to the date of the continuation in part.

[00:12:17] Speaker 01:
I mean, this is a very different circumstance because these terms are used throughout

[00:12:25] Speaker 01:
both applications.

[00:12:27] Speaker 01:
The real question is, and this is what the board was, I think, their error, they were using the term everything, which also appears in the 81 case, to try to say that the disclosure was broadened.

[00:12:46] Speaker 03:
Counsel, you're into your rebuttal time.

[00:12:48] Speaker 03:
You can either continue or save it.

[00:12:51] Speaker 01:
Thank you.

[00:12:54] Speaker 03:
Mr. Ayers.

[00:13:12] Speaker 04:
Good morning.

[00:13:22] Speaker 04:
May it please the court, Peter Aris on behalf of the United States Patent and Trademark Office.

[00:13:27] Speaker 04:
The board in this case faithfully followed this court's prior decisions in both power oasis and its prior ruling in the PMC case on claim construction and reached the correct conclusions that the six challenge claims were unpatentable based on the prior art.

[00:13:45] Speaker 04:
That conclusion is supported by substantial evidence, and we would request that this court affirm

[00:13:53] Speaker 04:
Let me start first with the programming issue.

[00:13:59] Speaker 04:
Despite what my friend said on the other side, the board found that digital television was not, in fact, described in the original 490 patent application.

[00:14:12] Speaker 04:
And that finding is supported by substantial evidence.

[00:14:17] Speaker 04:
And I think the easiest way to understand this is to look at

[00:14:21] Speaker 04:
the description of digital television in the 635 patent and compare that to the absence of any Disclosure in the 493 patent so if we turn first to Appx 381 column 235 in the 635 patent it says explicitly refers to

[00:14:49] Speaker 04:
digital television transmissions.

[00:14:52] Speaker 04:
And the board relied on that description at APPX 29 to show that, in fact, that the 635 patent broadened out the programming that was within the scope of that term in the 635 patent.

[00:15:10] Speaker 04:
But it goes on.

[00:15:11] Speaker 04:
And this is really, you can see how in the course of the

[00:15:16] Speaker 04:
the time between 1981 and 1987, how the description of digital television becomes more and more fulsome.

[00:15:25] Speaker 04:
And this is at column 149, APPX 338.

[00:15:31] Speaker 04:
This is now describing an example, the so-called Wall Street Week example, that was actually included in the 490 patent.

[00:15:41] Speaker 04:
But now it has a much more fulsome disclosure

[00:15:45] Speaker 04:
And it makes explicit reference to transmissions that include so-called, quote, digital video and, quote, digital audio.

[00:15:55] Speaker 04:
And there's a very important factual difference here that's sort of elided by my friend.

[00:16:01] Speaker 04:
And that is there's the difference between including digital information that's embedded in an otherwise analog signal, like conventional television programming, and digital

[00:16:15] Speaker 04:
video information that encodes the color for a particular pixel, for example.

[00:16:23] Speaker 04:
That technology by PMC's own expert was only experimental in 1991.

[00:16:32] Speaker 04:
And the disclosure simply did not support the digital video that's described in the 1987 specification.

[00:16:43] Speaker 04:
The 490 patent is

[00:16:45] Speaker 04:
replete with references to using well-known conventional circa 1981 television components to both provide the embedding of the digital information as well as extracting that information.

[00:17:05] Speaker 03:
What about the receiving limitation of claim 18, particularly unaccompanied by any non-digital information?

[00:17:15] Speaker 04:
Again, that finding, Your Honor, is supported by substantial evidence.

[00:17:20] Speaker 04:
And again, I think the simplest way to think about this is, as the board did, to look at the multi-channel description in the 490 patent.

[00:17:33] Speaker 04:
And the board found that,

[00:17:37] Speaker 04:
Even if you were to accept that one of the channels was all digital, which we dispute and the board did not find, that because one channel is accompanied by another channel, that it's all transmitted together.

[00:17:56] Speaker 04:
And again, the 490 patent is replete with references to multi-channel transmission

[00:18:05] Speaker 04:
and reception.

[00:18:06] Speaker 04:
We see that at figures 4E at APPX 5658 and figure 6A at APPX 5660 that the information, and I don't think there's really any dispute, that is included in those adjacent television channels would accompany

[00:18:35] Speaker 04:
or that those channels include non-digital information, namely analog television, video, and audio.

[00:18:46] Speaker 04:
And I don't think there's any dispute that analog television, video, and audio is, quote unquote, information.

[00:18:53] Speaker 04:
And therefore, this argument about signaling versus information is really kind of a red herring, because the board didn't find

[00:19:01] Speaker 04:
It limited its construction to just non-digital information and these adjacent channels.

[00:19:09] Speaker 04:
It's undisputed that that includes analog information.

[00:19:17] Speaker 04:
As far as coming back to programming power oasis, I don't think we heard anything other than perhaps a factual dispute about how the board applied power oasis.

[00:19:31] Speaker 04:
The director thinks that that case is on all fours, or this case is on all fours with power oasis.

[00:19:36] Speaker 04:
And I think if you actually go back and look at the facts of that case, you'll see that both in the original application and in the

[00:19:46] Speaker 04:
Later continuation in part application that there was an embodiment of the customer interface that was described in each It's just in the later application like here.

[00:19:59] Speaker 04:
They broadened out the disclosure to encompass additional features in the case of power Oasis that the user customer interface was external to the kiosk and likewise here they broadened out the the

[00:20:16] Speaker 04:
what's included in programming to include this digital video transmission that finds no support in the original application.

[00:20:27] Speaker 00:
Counselor, what about the board's finding that Gila teaches a changing decryption technique and that that was supported by substantial evidence?

[00:20:38] Speaker 04:
Well, Your Honor, we're frankly a bit surprised that the appellant has even raised that issue here, because they took the exact opposite position before the board, where they argued when they were trying to obtain written descriptive support for changing the changing keys constitutes changing the encryption techniques that

[00:21:04] Speaker 04:
Indeed, changing encryption techniques provided descriptive support for changing encryption techniques.

[00:21:17] Speaker 04:
Again, here's another example.

[00:21:19] Speaker 04:
In their brief, they want to equate now changing encryption techniques with changing encryption algorithms.

[00:21:27] Speaker 04:
But while the 635, again, is replete with references to algorithm, the word algorithm doesn't even appear in the 490 patent.

[00:21:39] Speaker 04:
So we know that the 490 patent was not talking about changing algorithms when they said changing encryption techniques.

[00:21:48] Speaker 04:
So we think, frankly, that argument is frivolous.

[00:21:54] Speaker 02:
on the definition of programming.

[00:21:56] Speaker 02:
Yes, Your Honor.

[00:21:56] Speaker 02:
Does the 1981 use the word everything?

[00:21:59] Speaker 04:
It does, Your Honor.

[00:22:00] Speaker 04:
And that reference is at APPX 5650 in the abstract.

[00:22:09] Speaker 04:
But again, if you compare that with the comparable description

[00:22:17] Speaker 04:
definition if you will of programming.

[00:22:21] Speaker 04:
It's not just the everything, it's that it bonds out the, it provides a number of additional examples of programming that fall within the scope of that.

[00:22:34] Speaker 02:
Why isn't everything broad enough to capture digital way back in the 1981 specification?

[00:22:42] Speaker 04:
Because if you compare, well, first of all, they dispute that that actually constitutes a claim construction, given that it appears in the abstract.

[00:22:55] Speaker 04:
But I don't think it really matters whether or not that's definitional.

[00:23:01] Speaker 04:
The question is, what

[00:23:03] Speaker 04:
that we know that the programming as defined in the 635 patent must embrace these additional examples, including not just digital television, but if you look at column 6 of the 635 patent at APTX 266,

[00:23:24] Speaker 04:
It lists another different example of computer programming as well as combined medium programming.

[00:23:33] Speaker 04:
So again, they're expanding out the breadth of that term beyond what's even described in the abstract of the 490 patents.

[00:23:48] Speaker 04:
Are there any further questions, Johnners?

[00:23:49] Speaker 04:
No.

[00:23:51] Speaker 03:
Apparently not.

[00:23:52] Speaker 04:
Okay, thank you.

[00:23:54] Speaker 03:
I thought you have some rebuttal time The

[00:24:19] Speaker 01:
which had been provided this citation.

[00:24:22] Speaker 01:
But it is 5650.

[00:24:27] Speaker 01:
Now, the first question is, the disclosure of computer programming and everything else is specific in the 81 case because it discusses downloading programming

[00:24:49] Speaker 01:
computer programming to change certain aspects of the way in which the digital, for example, the recipe or the book or the other elements of the control of copyrighted material is done.

[00:25:12] Speaker 01:
The computer programming is of course referenced in the 81 case.

[00:25:18] Speaker 01:
because it's inherent in how the various processors work.

[00:25:22] Speaker 01:
But it's also disclosed as being downloaded in that application, which is found in 6D.

[00:25:35] Speaker 01:
Now, with respect to the changing of the encryption technique, the 81 specification

[00:25:47] Speaker 01:
in figures 4A through C specifically discloses changing the fashion in which the decryption is done as opposed to controlling the authorization of the encryption or not.

[00:26:09] Speaker 01:
So the difference really here is, and Guy is silent on this point, is

[00:26:16] Speaker 01:
is a key, in the normal sense of the word, is to open something up.

[00:26:24] Speaker 01:
And that's exactly what happens in an encryption process.

[00:26:31] Speaker 01:
A technique is the underlying process itself, and that's fully supported by the 81 specification N4A through D.

[00:26:46] Speaker 01:
And specifically also, digital television is specifically disclosed because of the description of decrypting the audio separate from the video.

[00:27:02] Speaker 01:
I mean, again, there's no question that the 87 case is more extensive.

[00:27:09] Speaker 01:
It's longer.

[00:27:11] Speaker 01:
But I don't think anything has been shown

[00:27:16] Speaker 01:
that would support the idea that it didn't disclose all of these things that are necessary to obtain priority.

[00:27:24] Speaker 03:
Thank you, counsel.

[00:27:25] Speaker 03:
We appreciate both arguments.

[00:27:27] Speaker 03:
The case is submitted.