The first case for argument, there are actually two cases which we've consolidated for purposes of argument. 151015 and 151136, General Electric, Chris's five degree, Mr. Case. Thank you. May I please support? I believe I've reserved five minutes for Rebuttal. Yes. To make the case, you have a patent owner, General Electric. And in these appeals, the patent trial and appeal board incorrectly found that the appeal claims are obvious over a number of references, including Van Hof and Anthony. You know, right? Primarily a substantial evidence case, right? It is your honor. So what's the matter with the board's determination that these two prior references disclose the plurality of class codes and the major class codes? So, Your Honor, the problem is that the testimony that the patent office relied on of Dr. Heller, Dr. Heller, in fact, during cross-examination of his reply declaration, contradicted what he said in his opening brief
. So essentially, he stepped away from the evidence that the board relied on. So there is no one. Those are the wounds of Jupiter thing. So, No, Your Honor, this has actually, well, there's two parts. But the first part I was thinking of was in Van Hof itself, they talk about a hierarchical structure of five different areas. And in that description, Dr. Heller, Dr. Heller says that it must mean that there are plural class codes for each linkable character string in his declaration. But under cross-examination, he admitted that it is possible instead to build a system like that that only has one class code per level. So he read into something. What is that? How does that help you? I mean, the fact that you could build a system that only has one class code doesn't mean that it doesn't disclose using a plurality
. So, Your Honor, the actual text that's here doesn't say anything about a plurality. It only says that the annotation, including hyperlinks, may be provided in a hierarchical format. And then they say, when a term in the document satisfies the match pattern in the annotation, the link may reflect this hierarchy. And as a result, there is no explicit disclosure that the portion relied on by the board means that there is, that there are plural links, plural class codes. The board also relied on the first sentence in that paragraph where it says, including hypertext links, may be provided in a hierarchical format. And then the paragraph ends with a listing of what that hierarchical format would be. The topics such as medical oncology, melanoma, et cetera. So it looked like to me the board read this reference and made a finding as to how the board understood this passage and where it's class codes and hyperlinks. So Your Honor, I think that the board did not make a finding that the annotation links plural would have all come from the same database. The board's decisions actually silent on that. It doesn't say that those links are all stored in the database
. They say that even if they say there's an annotation that has links, the links don't, there is no evidence, no substantial evidence. There is no evidence at all, no substantial evidence to show that those links are multiple links stored in a database such that a matching linkable character string has multiple class codes. The paragraph right before the section cited by the board, column eight, and I'll refer to the 065 patent, the patent share, comment specification, say that any links present in the document at the time of the request will be allocated a higher, higher relevance indicator than hyperlinks added after the user's request and annotation. So that means that even if there is a word that has multiple links, it doesn't mean they came from a database such that there were plural class codes. But the board found that this disclosure reflected the claim limitation, right? The board did your honor, but not on substantial evidence. In fact, the fact that the, that why couldn't they say that the part that Judge Chen read to you supports our conclusion? Because the unrebutted testimony of Dr., Dr. Homan is that in fact, the, this passage does not inherently mean what he initially said he wrote, where does he say that? He says that your honor in a, one, nine, eight, eight, that a one, nine, eight, nine, and he was asked if you could build a system that has only one relevance indicator per linkable character strings. And the words would still be used to reflect a hierarchical cross reference list in order of increasing specificity. And he said yes, a system like that could physically be built. So the only way that the board could find by a substantial evidence
. Wait a minute, wait a minute. What you just said, one, nine, eight, yes, man. What you said he said, well, so yes, I think I would agree with that. Was that what you're talking about? His answer was systems like that could be physically built, yes. Well, so what, I mean, what is that? How does that contradict the board's mind? It contradicts it because it shows that this passage doesn't mean, doesn't inherently mean what the board is saying it thinks it means. And as a result, why does it mean that? That means that he's saying a system could be built this way. Why does that contradict the notion that the disclosure tells you that a hierarchical system could be built? They both, both what he's talking about here in the quote end, the site from the patent office, the site from the patent are in fact talking about a hierarchical system grinder. There is no indication that you have to, in order to have a hierarchy, the hierarchy that's listed as medical oncology, melanoma treatment and radiation. So if there's a word that has to do with radiation treatment of melanoma, which is a kind of cancer and that's medical, there's nothing in this that says that there is some word, let's call it x-ray. x-ray can be a kind of radiation that's used in treatment that's, that treats melanoma, which is kind of cancer. But it doesn't say that x-ray has, x-ray or any other word, has multiple class codes associated with that word
. Just because there's a hierarchy, doesn't mean that there's multiple things at each level of the hierarchy. Yeah, but he's still saying that multiple things at each level of the hierarchy is disclosed by Van Hauff, isn't he? So you can have multiple words at each level of the hierarchy, Your Honor, without having multiple class codes, right? You could have- Well, I understand what you're saying, but he none, even though he says you could build a system that didn't satisfy the claim limitations, that he doesn't contradict his statement that Van Hauff discloses what's claimed in the patent. It's the- he wasn't asked whether or not you could build a system that doesn't- doesn't read on the patent. He was asked whether or not this paragraph inherently means what he thought it meant initially. And he had to admit that you could build a system, so Van Hauff is talking about building a system. And the system has a hierarchy of five levels of increasing specificity. At no point does it say that there's multiple class codes. I mean, the actual words never say there's any linkable character string here that has multiple class codes. Yeah, but he's also saying common sense would cause you not to do that. He's saying that you wouldn't- there were no reason to build a system like that. And what he's saying is that if you read Van Hauff using common sense, you would do what the patent claims
. So, Your Honor, I don't think that he's saying that at all because the common sense factor is cut against exactly by the fact that if it- what if- What does he mean when he says it would be bizarre, but it is possible? That's what his response was. It would be bizarre, but it is possible. I don't know what he meant by that, Your Honor, but what he said was that this text doesn't mean what he thought it meant initially. He doesn't say that. On these pages that you've cited us that we've been looking at, this question and answer about the system. Yes, Your Honor. I'm going to get that out of the line. So, the testimony that is here at A1988 where he says, I think the implication of Van Hauff is that you would present multiple destination addresses each with their own relevance index and order them based on relevance index. He doesn't say that those linkable characters strings are received from the same database. He also- So, he says he can't imagine why you would want to insert the word medical without a link to the word medical in such an annotation. So, he says there will be one relevance indicator for destination address
. What we're finding is that he says- Well, after he says that, the question is I'm not asking you what you want. I'm asking you could such a system be physically built. Yes, Your Honor. So, we're no longer talking about Van Hauff's disclosure. We're talking about whether such a system could be physically built. What we're talking about is whether or not Van Hauff me- The words of Van Hauff inherently mean that there must be multiple class codes per linkable characters string. So, for example, Your Honor, let's say that the word- After can, there must be or they can- You have to show that it was. If it must be, then you can say it was inherent. No, if you can show it can be and that would be the only common sense way of doing it. Isn't that sufficient? Only if you can show that it was the only common sense way. Well, that's what he said, isn't it? So, Your Honor, what ends up happening is if the word was x-ray and there were multiple class codes for x-ray
. When you come across the word x-ray in the system of Van Hauff, which of the linkable characters string- Which of the destination addresses do you put in? There are two choices. That's why it's not common sense. The reality is that they're going back and reading Van Hauff in light of the applicant's invention and trying to shoehorn it in to say, well, we see that it would have been common sense to do this. Well, if that's the case, Your Honor, it segues us over to the commercial success. If that was the common sense, if it was obvious to do it, then people would have done it before and didn't. And it wasn't until this invention came along that you were able to do things like provide context-sensitive link. Links to information by utilizing these major class codes. What's missing from Van Hauff is any indication that you would be able to say, hey, in this context, Apple means a fruit versus a computer company. Or in the context of the patent that New York relates to a city or a sports team. And the only way to do that is with class codes. And you don't, in the context of what Van Hauff is describing this hierarchy, you don't need to distinguish between, or he doesn't say, he hasn't figured out the problem of distinguishing between Apple, the computer and Apple, the fruit or New York, the city and New York, the location of a sports team
. So that's the problem. They're trying to read into something words that don't exist in the presence of what I think is their argument that there says, including hypertext links plural. But the links plural doesn't teach you that all the links are coming from the database such that there would inherently be multiple class codes. But in fact, the very sentence before this shows us that the paragraph before shows you that there could already have been links in the reference. So there's already a link to Apple. You find that one of the words are supposed to hypertext this Apple. They add a second one. Now there are multiple links. But that doesn't mean that there was multiple class codes in the database so that you can do the operations that give us the commercial success. That that applicants are able to achieve. So the reality is your honors that there is no substantial evidence that provides the basis for the peat for the peat tab to have said that this section describes multiple class codes per linkable character string
. The words aren't there literally and it isn't there implicitly. Also that in Anthony, what they're trying to do is take Anthony and reverse the operation of Anthony. There are multiple words which may link to a topic of Jupiter's moon. And you can do moons of Jupiter, which goes to the text or Jupiter's moon that goes to the text. But it's the reverse of what's being claimed here on what's being claimed is that the linkable character string has multiple class codes. What they're instead doing is that there are multiple words that can go to the same linked text. And as a result, the operations are both opposite and don't need to claim with which. So you're on a right chart. It's my rebuttal time. So I said the rest of you read the title. I'm going to have to read the title. I'm going to have to read the title. May I please the court, Matt Lowry on behalf of the appellate and vibrant media. I'm glad that we agree that the standard of review of we being the parties is fact finding substantial evidence standard. The only exception to that would be abusive discretion on the motion to exclude that was denied. It's not argued in the reply brief. I'm not sure if it's still in, but that would be a technicality. I think I'd like to start with what the court was questioning about, which is the fact finding that Van Hof discloses multiple codes and destination addresses. And I think the substantial evidence, which is what we're looking for here is playing. Van Hof has the language using the plural for an annotation in the, and the board said it's not just that sentence. I mean, it's in the context of Van Hof as a whole. This is the way we read it
. I'm going to have to read the title. May I please the court, Matt Lowry on behalf of the appellate and vibrant media. I'm glad that we agree that the standard of review of we being the parties is fact finding substantial evidence standard. The only exception to that would be abusive discretion on the motion to exclude that was denied. It's not argued in the reply brief. I'm not sure if it's still in, but that would be a technicality. I think I'd like to start with what the court was questioning about, which is the fact finding that Van Hof discloses multiple codes and destination addresses. And I think the substantial evidence, which is what we're looking for here is playing. Van Hof has the language using the plural for an annotation in the, and the board said it's not just that sentence. I mean, it's in the context of Van Hof as a whole. This is the way we read it. Now one might argue the next sentence says link and there's an issue there. And if there is an issue, it's a fact issue. And the word made is finding not just on those two sentences. I mean, but Van Hof as a whole and remembering the level of skill in the art, which of course is the way that we're references red is a high level. It's a bachelor's in I think computer science or engineering and several years of graduate experience or real life experience, which is at the graduate side during nearly a PhD. There is also the knowledge in the art that Dr. Helm and testified about. There's databases. There's one to many and many to one. These are all common known techniques. And that is the context in which Van Hof has read and it's unrebutted
. Now one might argue the next sentence says link and there's an issue there. And if there is an issue, it's a fact issue. And the word made is finding not just on those two sentences. I mean, but Van Hof as a whole and remembering the level of skill in the art, which of course is the way that we're references red is a high level. It's a bachelor's in I think computer science or engineering and several years of graduate experience or real life experience, which is at the graduate side during nearly a PhD. There is also the knowledge in the art that Dr. Helm and testified about. There's databases. There's one to many and many to one. These are all common known techniques. And that is the context in which Van Hof has read and it's unrebutted. In fact, on the motivation to combine side, we cite the portion where the board found that everything in the patent that it was looking at was a known technique being applied with a predictable result. And that is under KSR enough before you get the motivation to combine. But in addition, that's the context diversity's references are read. And then the last part is common sense. Dr. Helm and talked about the hierarchy of relevance and the tags and going to more than one destination. And that's all disclosing at Hof. I like to address something that I think was new on appeal, although that's not the focus of my argument, which is that Van Hof says here's an annotation and there's multiple codes medical oncology melanoma and multiple links. It actually says links that's plural. And the argument is, well, that's the annotation, but that's not necessarily in the database. And if it's not in the database, where in the world is it coming from? Because there is nothing in Van Hof that gives you any place for it to come from in all of the embodiments other than the annotation database
. In fact, on the motivation to combine side, we cite the portion where the board found that everything in the patent that it was looking at was a known technique being applied with a predictable result. And that is under KSR enough before you get the motivation to combine. But in addition, that's the context diversity's references are read. And then the last part is common sense. Dr. Helm and talked about the hierarchy of relevance and the tags and going to more than one destination. And that's all disclosing at Hof. I like to address something that I think was new on appeal, although that's not the focus of my argument, which is that Van Hof says here's an annotation and there's multiple codes medical oncology melanoma and multiple links. It actually says links that's plural. And the argument is, well, that's the annotation, but that's not necessarily in the database. And if it's not in the database, where in the world is it coming from? Because there is nothing in Van Hof that gives you any place for it to come from in all of the embodiments other than the annotation database. That's the only place that that information exists. There is a possibility for a user to put in other codes, but that's like a sub embodiment. It's a one embodiment. It's not the invention as a whole. And on top of that, there's substantial evidence supporting the boards finding not the least of which is Dr. Helm and talking about databases and how these would be stored in a databases and there would be multiple places in the database. In connection with the purported impeachment of Dr. Helm and about being able to build a particular system. I would actually first make the point that whether he was successfully impeached or not as a fact question for the board to weigh it did weigh it. It found he wasn't successfully impeached. I think at least from Viverance perspective, that's indisputably the correct conclusion
. That's the only place that that information exists. There is a possibility for a user to put in other codes, but that's like a sub embodiment. It's a one embodiment. It's not the invention as a whole. And on top of that, there's substantial evidence supporting the boards finding not the least of which is Dr. Helm and talking about databases and how these would be stored in a databases and there would be multiple places in the database. In connection with the purported impeachment of Dr. Helm and about being able to build a particular system. I would actually first make the point that whether he was successfully impeached or not as a fact question for the board to weigh it did weigh it. It found he wasn't successfully impeached. I think at least from Viverance perspective, that's indisputably the correct conclusion. It says plural, the fact that you could do it with one doesn't negate the disclosure of plural and the fact that that's the way one of ordinary skill in the art would read it. I guess I would close with commercial success notion, which is simply that first of all, the pipeline came into existence ten years after this patent. So even if they were successful, I don't know what would mean. But we don't know what the revenues were in the record. We don't know if they made a profit or lost millions. That's the patenties burden of production on commercial success before it would become a part of it. So the board accorded it as a factual matter little weight, which I respectfully submit it's inclined to do. So unless there are any further questions from the board, I would yield up my time to the court's bedroom. Did you petition for a 102 in light of Van Hal? We did not, Your Honor, and that's an interesting question because I actually believe that Van Hal is a 102 and it's a point of curiosity that I don't think it's necessary in the review. But it's interesting and to address your honors question. I think that the term class codes, there was a concern that it would be argued by the patent owner, the class code can't be a descriptor
. It says plural, the fact that you could do it with one doesn't negate the disclosure of plural and the fact that that's the way one of ordinary skill in the art would read it. I guess I would close with commercial success notion, which is simply that first of all, the pipeline came into existence ten years after this patent. So even if they were successful, I don't know what would mean. But we don't know what the revenues were in the record. We don't know if they made a profit or lost millions. That's the patenties burden of production on commercial success before it would become a part of it. So the board accorded it as a factual matter little weight, which I respectfully submit it's inclined to do. So unless there are any further questions from the board, I would yield up my time to the court's bedroom. Did you petition for a 102 in light of Van Hal? We did not, Your Honor, and that's an interesting question because I actually believe that Van Hal is a 102 and it's a point of curiosity that I don't think it's necessary in the review. But it's interesting and to address your honors question. I think that the term class codes, there was a concern that it would be argued by the patent owner, the class code can't be a descriptor. And what Van Hal says is medical oncology melanoma, those are descriptive. And the concern was that that argument would be made. And so Anthony was brought in because Anthony has an explicit disclosure that that topic name could be a descriptor or a numerical index. So that kind of removed that argument. Turns out patent owner didn't make that argument by the class codes, perhaps because we had Anthony or perhaps because they just didn't believe it. But either way that became a non-issue. And given that non-issue, I think Van Hal does, in fact, anticipate, but that was not presented in the petition in that way. It was a combination with Anthony. Thank you. Thank you. Your honor is that the issue was raised as to commercial success
. And what Van Hal says is medical oncology melanoma, those are descriptive. And the concern was that that argument would be made. And so Anthony was brought in because Anthony has an explicit disclosure that that topic name could be a descriptor or a numerical index. So that kind of removed that argument. Turns out patent owner didn't make that argument by the class codes, perhaps because we had Anthony or perhaps because they just didn't believe it. But either way that became a non-issue. And given that non-issue, I think Van Hal does, in fact, anticipate, but that was not presented in the petition in that way. It was a combination with Anthony. Thank you. Thank you. Your honor is that the issue was raised as to commercial success. And that it's the patent owner's burden of proving that the patent owner did, in fact, present evidence about commercial success, the fact that the vibrant came into existence long after the patent was filed. It's not relevant to the issue of the motivation, the commercial success. And in fact, although Council said that evidence was not presented about revenue, revenues not the only mechanism by which one can show commercial success. You can show adoption by large numbers of people. And it's exactly what patent owner did. The patent owner pointed not only to the petitioner's own website, but it pointed to the fact that they themselves say that the important part is to provide the relevant opportunities, which are what occurs by using the classical as we were discussing earlier. And in fact, your honor, the result of this is that there was a substantial adoption of the technology by users of the vibrant system. Now, that having been said, in addition, the technology is the technology. There is a nexus between the success and the commercial success and the claims because the thing that is actually causing the people to use that system is the advantage that the vibrant has the relevancy. So your evidence about that the sales took place as a result of this invention? I'm sorry, I don't know more time. How do we know what is the evidence of the nexus between the sales and the patent? So, for example, your honor, the evidence is the vibrant own websites that are described in the brief that say that 69% of the 500 women survey reported being more likely to pay attention to ads relevant to what the evidence is
. And that it's the patent owner's burden of proving that the patent owner did, in fact, present evidence about commercial success, the fact that the vibrant came into existence long after the patent was filed. It's not relevant to the issue of the motivation, the commercial success. And in fact, although Council said that evidence was not presented about revenue, revenues not the only mechanism by which one can show commercial success. You can show adoption by large numbers of people. And it's exactly what patent owner did. The patent owner pointed not only to the petitioner's own website, but it pointed to the fact that they themselves say that the important part is to provide the relevant opportunities, which are what occurs by using the classical as we were discussing earlier. And in fact, your honor, the result of this is that there was a substantial adoption of the technology by users of the vibrant system. Now, that having been said, in addition, the technology is the technology. There is a nexus between the success and the commercial success and the claims because the thing that is actually causing the people to use that system is the advantage that the vibrant has the relevancy. So your evidence about that the sales took place as a result of this invention? I'm sorry, I don't know more time. How do we know what is the evidence of the nexus between the sales and the patent? So, for example, your honor, the evidence is the vibrant own websites that are described in the brief that say that 69% of the 500 women survey reported being more likely to pay attention to ads relevant to what the evidence is. So, what they're reading. And so, Dr. Mayor Patel describes the fact that it is the context that you can change, you can use to change the links with that provides the relevance. As a result, we believe that the patent owner showed the nexus that's required. Also, your honor, one of the issues that was raised is whether or not the Dr. Helman's declaration should have been afforded any or little weight. Dr. Helman didn't describe in his declaration what the standard was that he used in providing his opinions. He didn't say whether or not he used substantial evidence, clear and convincing preponderance. So, without that, that is an underlying fact that the board should have, should have required be in the petition itself, in the declaration it was filed with the petition itself. Dr
. So, what they're reading. And so, Dr. Mayor Patel describes the fact that it is the context that you can change, you can use to change the links with that provides the relevance. As a result, we believe that the patent owner showed the nexus that's required. Also, your honor, one of the issues that was raised is whether or not the Dr. Helman's declaration should have been afforded any or little weight. Dr. Helman didn't describe in his declaration what the standard was that he used in providing his opinions. He didn't say whether or not he used substantial evidence, clear and convincing preponderance. So, without that, that is an underlying fact that the board should have, should have required be in the petition itself, in the declaration it was filed with the petition itself. Dr. Helman tried to belatedly patch it with a supplemental declaration later, but that's not sufficient. The petition itself has to show the invalidity of the claims. And as a result, the board could not have relied on Dr. Helman's testimony as to what certain things meant or what his conclusions were without knowing what the level was that he was applying for the standard. If he was only applying substantial evidence, then he's not actually saying that by preponderance of the evidence, he found something to be true. So, as a result, Dr. Helman's declaration should have been excluded. So, Chen, you look like you're skeptical. I don't have any questions. Okay. So, the additional comment that I would make is that the petitioner has said that the patent owner hasn't pointed to any, has important to the success of the earlier owners of the patent that I would submit to your own assets, that's not actually relevant to the issue of commercial success
. It only requires a linking of the claims to what caused the invention to be successful, which the patent owner believes it's been done. Thank you. We thank both sides in the case. Thank you