Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 1 of 47
`Case 1:14-cv-02396—PGG-MHD Document 153-11 Filed 06/28/19 Page 1 of 47
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`EXHIBIT J
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`EXHIBIT J
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`Case 1:14-cv-02396—PGG-MHD Document 153-11 Filed 06/28/19 Page 1 of 47
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`EXHIBIT J
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 2 of 47
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`Page 1
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` UNITED STATES COURT OF APPEALS
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` FOR THE FEDERAL CIRCUIT
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` --------------------
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` GOOGLE LLC,
`
` Appellant
`
` v.
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` NETWORK-1 TECHNOLOGIES, INC.,
`
` Appellee
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` --------------------
`
` 2016-2509, 2016-2510, 2016-2511, 2016-2512
`
` --------------------
`
` December 4, 2017
`
`B E F O R E :
`
`HON. TIMOTHY B. DYK
`
`HON. ALVIN A. SCHALL
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`HON. JIMMIE V. REYNA
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`Circuit Judges
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 3 of 47
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`Page 2
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`APPEARANCES
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`PERKINS COIE LLP
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` Attorneys for the Appellant
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` 700 13th Street, NW, Suite 600
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` Washington, DC 20005
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`BY: DAN L. BAGATELL
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`DOVEL & LUNER, LLP
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` Attorneys for the Appellee
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` 201 Santa Monica Boulevard, Suite 600
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` Santa Monica, CA 90401
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`BY: GREGORY S. DOVEL
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 4 of 47
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`Page 3
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` HON. TIMITOHY B. DYK: We have four
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`cases this morning. The first of these is Number
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`16-2509, Google, LLC v. Network-1 Technologies,
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`Inc. Mr. Bagatell.
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` MR. BAGATELL: May it please the Court,
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`Dan Bagatell on behalf of Google. With me is my
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`colleague Robert Swanson. I’d like to start, if
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`I may, with the construction of non-exhaustive
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`search, because if you agree with us on that,
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`it’ll simplify the rest of the appeal
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`considerably.
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` This is a case in which the BRI
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`standard makes a difference. It’s a case where
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`there are multiple reasonable interpretations and
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`not much to go on beyond the fine language. The
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`term non-exhaustive search doesn’t appear in the
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`specification. It was added years into
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`prosecution with no explanation of the
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`definition. There’s no ordinary meaning, single
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`ordinary meaning.
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` HON. JIMMIE V. REYNA: So, just to be
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`clear, the term exhaustive also does not appear
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`in the specification.
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` MR. BAGATELL: It doesn’t. The patent
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`does refer to the term linear search but it
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 5 of 47
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`Page 4
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`doesn’t clearly answer what -- the relevant
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`question for purposes of this appeal.
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` So we think the right question is the
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`BRI standard: Is there a reason to rule out our
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`definition, either intrinsic or extrinsic
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`evidence? And I’ll start with the intrinsic --
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`the claim language.
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` You mention exhaustive search.
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`Exhaustive means to go through completely, to use
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`up entirely. In the case of this type of a
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`search, it means that you’re considering every
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`single one and making sure you’re going to get
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`every possible match.
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` And in this case, there could be
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`multiple matches because we’re not talking about
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`just a search that gives you one right answer.
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`This is a neighbor search. You can get multiple
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`answers and they may not be exact matches.
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` So, you can’t just judge it by the
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`first character. We use the example of Court of
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`Appeals for the Federal Circuit in the database,
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`and you search on Federal Circuit. If you’re
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`looking for an F to match a C, it’s not going to
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`match. If you’re looking for the first word it’s
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`not going to match. The first couple of
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 6 of 47
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`characters may well be spurious.
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` To get the right answer you need to
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`consider the whole thing. You have to consider
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`it holistically. At least that’s a reasonable
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`interpretation of the claims. And there’s
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`nothing in the intrinsic or extrinsic evidence
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`that suggests otherwise. I mentioned the --
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` HON. ALVIN A. SCHALL: So, let’s say
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`that you come up with a search and Court of
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`Appeals Federal Circuit comes up -- under your
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`construction, does it stop there? It seems to me
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`under your construction you would have to go
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`through and view all the data in there and make
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`sure Judge Reyna is listed with all the judges,
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`and make sure the address is correct, and that
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`all the data within that particular result is
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`correct or matches.
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` MR. BAGATELL: Well, that was our
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`construction that you need to look at them. It
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`may or may not match depending on whether it is,
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`you know, a near neighbor or a neighbor search.
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`So, for example, Federal Circuit will not exactly
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`match Court of Appeals for the Federal Circuit
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`but it can be a near match. And that’s our
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`point, that you can’t just stop looking at one
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 7 of 47
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`bit of data or one note. You have to consider
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`more than that. And there really isn’t any
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`reason in the specification to go otherwise.
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` In terms of extrinsic evidence, the
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`best the other side came up with was a Wikipedia
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`definition of group force search, which, we’ll
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`call that equivalent to an exhaustive search.
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`But what it says is check to see whether each
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`candidate’s solution satisfies the search
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`criteria.
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` Well, if anything, that helps us
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`because in the case of a search criteria where
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`you’re dealing with a neighbor search, you have
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`to see whether it’s going to match holistically,
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`not just whether it’s going to match literally
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`character -- by the first character of the first
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`hit.
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` I recognize the board did not credit
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`our expert but you don’t need to rely on an
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`expert. If you had a situation where there’s no
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`clear answer from --
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` HON. TIMOTHY B. DYK: Neither expert
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`here pointed to anything in the art that
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`suggested what the definition was, right?
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`They’re just opining as to what they thought.
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 8 of 47
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`Page 7
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`That was true of your expert as well as theirs,
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`right?
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` MR. BAGATELL: Largely. I think the
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`other side -- well, first of all, the board
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`decided this at the institution phase. So their
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`expert hadn’t even opined at that point. It was
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`just lawyer argument. And in our case, an expert
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`with a petition. And the board did not credit
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`our expert. They basically just said we hadn’t
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`proven that you should include that particular
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`element of the construction. It bought half of
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`our construction but not the other half.
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` The burden of proof wasn’t on us. This
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`was a legal issue governed by the BRI standard.
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`And so if there are multiple reasonable
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`interpretations. This is a difficult case in the
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`sense that usually you have something in the
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`intrinsic evidence that points you one way or the
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`other or there’s a dictionary definition. If you
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`don’t have that, then you have to take the
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`broadest interpretation.
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` I think the board got a little messed
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`up because --
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` HON. ALVIN A. SCHALL: I want to come
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`back to my question. Did either -- apart from
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 9 of 47
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`Page 8
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`the Wikipedia page, did either expert point to
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`any documentation from the prior art suggesting
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`what meaning this term should have?
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` MR. BAGATELL: I don’t recall any. And
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`so that’s why we’re in a situation where you
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`pretty much are going on the claim language. And
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`if nothing rules out our reasonable
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`interpretation -- and, again, you’re dealing with
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`a non-exhaustive search for a neighbor. It’s not
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`an exact search. You can’t just stop at the
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`first bit.
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` At least we had a reasonable
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`interpretation. And if you agree with us, that’s
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`going to require reversal of the claim
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`construction and remand for a reconsideration
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`under the correct claim construction. I believe
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`that affects both Iwamura and Gios. I’m not even
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`there’ll be a dispute as to whether they
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`disclosed non-exhaustive search under our
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`interpretation.
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` I acknowledge know that Conwell really
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`went off at an orthogonal round. And if you
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`like, I can turn to Conwell or I can go to
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`Iwamura under the board’s own construction,
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`whichever Your Honors prefer.
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 10 of 47
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` HON. JIMMIE V. REYNA: Before you do
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`that, let me ask you another question. The 441
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`patent, for example, it relates to identifying a
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`work such as a digital, audio, or video file
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`without needing to modify that work. So, it’s
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`looking for a work. A video file or a digital
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`file. Let’s say, music, right?
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` It seems to me that there you’re
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`talking about a return that’s not necessarily the
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`result of a search for data. And your
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`construction seems to be focused more on data as
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`opposed to a record. And it seems to me, if you
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`look at the patent at Appendix 99, Column 8, and
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`starting with that whole language, 45, running
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`into the next page, I think it’s clear there that
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`the patent is not speaking about data. In fact,
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`it says that that’s not what the patent is about.
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`And it refers to things such as entries and walks
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`away from having to make a binary search, just
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`looking for zeros and ones as opposed to a note,
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`a sound.
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` MR. BAGATELL: Well, to some extent
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`it’s dealing with some of the problems with
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`existing ways to do searches. So, some of this
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`is a matter of semantics, whether you refer to it
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 11 of 47
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`Page 10
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`as data or records in a database. I’ve been
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`trying to avoid some of the semantics and
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`basically refer to -- you’ve got to search on
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`non-exhaustive features of a media work. That’s
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`the claim language for all of these.
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` And so you’re taking the media work,
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`you’re extracting certain features which can be
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`certain segments or it can be a mathematical
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`manipulation. And then you’re trying to see
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`whether that matches something that a user
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`inputs. Maybe they hum it, maybe they type it
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`in, whatever.
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` So, in that sense, you know, the other
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`side has been focusing on the term database. It
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`really -- I agree, it’s not really a question of
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`database. Database isn’t the claim term. The
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`question is whether you’re extracting features
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`from this media work and you’re trying to find in
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`your match to it or a neighbor search, non-
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`exhaustive neighbor search for a near match of
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`that item.
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` So we’re not necessarily searching on
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`the media works themselves. We’re actually doing
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`a search of the extracted features. And Iwamura
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`is an example of that. So, Iwamura, you have
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 12 of 47
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`Page 11
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`this media work and maybe you -- it’s -- maybe
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`it’s got the first 100 notes of a passage of
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`Beethoven or something like that. And you enter
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`a 10-note search. It’s not going to be looking
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`at all 100 notes. It’s going to be looking at
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`the manipulation of 1-10, 2-11, 3-12. It’s a
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`frame. It’s going to be a moving frame. It’s
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`going to be looking at all the 10-note extracted
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`features.
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` And, in fact, in this case, they’re
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`only going to be looking at roughly 20 percent of
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`them because it’s looking for the ones that have
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`aligned peaks. So, 1-10, the peaks don’t align,
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`we’re going to throw that out. 2-11, it doesn’t
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`align, we’re going to throw that out. 3-12, ah,
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`the peaks align. Therefore, we’re going to
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`search that one.
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` Iwamura teaches you that you can throw
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`out roughly 80 percent. That is a non-exhaustive
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`search even under the board’s definition because
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`the extracted features there are going to be the
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`10-note sub-segments. And, you know, it may
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`ultimately identify the Beethoven work or it may
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`identify the 100-note sequence, but what it’s
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`actually searching is those 10 notes.
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 13 of 47
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` HON. JIMMIE V. REYNA: That footnote
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`doesn’t sound consistent with your argument as
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`you’re seeking to add an additional limitation to
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`the court -- to the board’s construction. You’re
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`looking for all data within the possible matches.
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` MR. BAGATELL: Yes. Well, okay, that’s
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`our claim construction. The argument I was just
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`making was under the board’s claim construction.
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` Under our claim construction, we’re
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`basically trying to say when you’re looking for a
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`search of extracted features, if the extracted
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`features are, for example, in these references,
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`notes of a work, let’s not call them data. Let’s
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`just call them notes or -- they could be adjusted
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`notes, they could be relative pitches, and that
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`sort of thing. So they’re adjustments of note
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`data. Well, they’re adjustments of notes.
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` So you’re going to see, does the first
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`note match? Is that enough? Under their
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`construction, that’s enough. You can just say
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`the first note doesn’t match and throw it out.
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`Under our construction, you need to consider it
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`holistically. You take the extracted feature as
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`a whole and compare it to each element that’s a
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`possible match.
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 14 of 47
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`Page 13
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` And, in our view, you can’t just stop
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`at note one, letter one. The Federal Circuit is
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`the easiest to understand. I’m a terrible
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`singer. You wouldn’t want to hear me sing. So I
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`think if you were to stop at the F, you would get
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`a spurious result. And that’s why you want to
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`look holistically.
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` So I think I’ve explained Iwamura, I
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`hope, to the Court’s satisfaction. If you like,
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`I can briefly touch on Conwell. The argument
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`there is relatively straightforward. Conwell was
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`a look up in a large sorted --
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` HON. TIMOTHY B. DYK: Does Conwell get
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`you anywhere under the board’s construction?
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` MR. BAGATELL: I don’t think the
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`board’s construction is -- the claim construction
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`disagreement isn’t really relevant to the way the
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`board ruled on Conwell. I think even if I win on
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`the claim construction, I still need to convince
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`you that the board erred with respect to the
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`analysis of Conwell.
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` HON. ALVIN A. SCHALL: But if you lose
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`on claim construction, Conwell doesn’t help you
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`much, right?
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` MR. BAGATELL: No, no. We have an
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 15 of 47
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`Page 14
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`argument even under the board’s construction for
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`Conwell. And I’ll just give it to you in a
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`nutshell. Conwell was a look up in a large
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`sorted database. The person of ordinary skill in
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`the art here had a com-sci degree and three years
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`of experience. You sort a large database so that
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`you can search it more efficiently. Their expert
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`admitted as much.
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` It didn’t use the term non-exhaustive
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`search, neither did this patent. And perhaps it
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`was not -- it was not an inherent anticipation
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`because, theoretically, you could plod through a
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`million records one by one. But a skilled
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`artisan would know that you search a large sorted
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`database by using a non-exhaustive search.
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`That’s what anyone would do.
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` We were relying on the doctrine that
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`basically you immediate envisage it. It’s not an
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`ipsissimis verbis test. It’s a question of what
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`one skilled in the art would understand looking
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`at the reference. And the only thing you would
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`do with a large sorted database is sort it non-
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`exhaustively. I seem to have exhausted my
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`initial time. I’ll save the rest for rebuttal,
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`if I may.
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 16 of 47
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`Page 15
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` HON. TIMOTHY B. DYK: Okay. Thank you,
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`Mr. Bagatell. You’re Dovel, is that how you
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`pronounce it?
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` MR. DOVEL: I’m sorry?
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` HON. TIMOTHY B. DYK: Dovel, is that
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`how you pronounce it?
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` MR. DOVEL: Dovel, yes, Your Honor.
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`Under this Court’s holding in Microsoft v.
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`Polycon, a construction is not reasonable if it
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`is divorced from the specification or if it is
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`inconsistent with how one of ordinary skill would
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`use a term.
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` HON. TIMOTHY B. DYK: Let’s talk about
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`how one of ordinary skill would lose -- use the
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`term. I’ve read the expert testimony here and I
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`don’t see that there’s anything very meaningful
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`in that expert testimony. It says, well, this is
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`the way I would construe it, but it doesn’t
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`really provide any evidence that this is a term
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`that is understood in the art, right?
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` MR. DOVEL: I disagree, Your Honor.
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`And the reason is our expert’s testimony goes
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`through the specification to explain in this
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`context of the specification how it’s being used.
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`And if I might, context is crucial here.
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 17 of 47
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`Page 16
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` HON. TIMOTHY B. DYK: But hold on.
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` MR. DOVEL: Yes?
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` HON. TIMOTHY B. DYK: Put aside the
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`specification, all right, for a moment. Is there
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`any evidence that was presented that tells us
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`that this has a meaning in the art?
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` MR. DOVEL: Yes, Your Honor. Our
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`expert opined that it had a meaning in the art,
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`and he also provided an example of an objective
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`source, the Wikipedia definition that the board
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`accepted as an objective source indicating the
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`ordinary meaning of exhaustive.
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` HON. TIMOTHY B. DYK: So, the Wikipedia
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`entry is the only piece of evidence that he
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`relied on, putting aside the specification, as to
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`what the meaning of this was?
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` MR. DOVEL: Directly. He did
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`indirectly rely upon other articles to support
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`his conclusion about the no-exhaustive searches
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`in the specification.
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` HON. TIMOTHY B. DYK: Okay, so what is
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`it in the Wikipedia that’s so helpful to him?
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` MR. DOVEL: Your Honor, I’m going to
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`turn to the Wikipedia article but let me give you
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`an explanation of what we’re looking for in that
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 18 of 47
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`Page 17
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`article one way or the other.
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` The term non-exhaustive or exhaustive,
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`it depends strictly on context. For example, if
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`you’re trying to locate where did you park your
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`car in a parking structure you do an exhaustive
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`search if you check every parking space.
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` HON. TIMOTHY B. DYK: Well, let’s talk
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`about the Wikipedia article. Where do we find
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`the Wikipedia article?
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` MR. DOVEL: Appendix 1393. That’s in
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`Volume 1 of the joint appendix.
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` HON. TIMOTHY B. DYK: 1393?
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` MR. DOVEL: 1393.
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` HON. TIMOTHY B. DYK: Okay, so how does
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`this help?
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` MR. DOVEL: And we’ll see that what it
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`says in the first paragraph: “In computer
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`science, exhaustive search consists of
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`systematically enumerating all possible
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`candidates for the solution and checking whether
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`each candidate satisfies the problem statement.”
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` What that means is we will have
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`exhausted if we’ve determined whether each
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`candidates satisfies our algorithm.
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` HON. TIMOTHY B. DYK: Why isn’t that
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 19 of 47
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`equally consistent with looking at all the data?
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` MR. DOVEL: Because, Your Honor, we do
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`not need to look at all the data to determine
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`whether each candidate satisfies the problem. We
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`need to look at enough data to know whether it
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`matches our algorithm. The example I gave Your
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`Honors of looking for your parked car, you don’t
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`have to walk around every car.
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` HON. TIMOTHY B. DYK: That may be or
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`may not be, but I don’t see how this is helping
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`you because it doesn’t really say that -- where
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`it’s talking about all candidates, that doesn’t
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`mean looking at the data for all the candidates.
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` MR. DOVEL: It necessarily does, Your
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`Honor. And the reason is if the question is
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`this: Are we trying to figure out whether a
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`given candidate matches or not, we need to look
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`at enough data to make that determination.
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`That’s always the case with every type of
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`exhaustive search.
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` And as Judge Reyna pointed out, in the
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`context of this patent -- that’s why the
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`specification decides this issue -- we can’t
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`divorce it from the specification -- our context
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`is we’re looking in a database to determine which
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 20 of 47
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`entries or records match.
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` We will have done that if we’ve
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`examined every entry or record in the same way
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`that we will have examined every parking space if
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`we looked at every parking space. We don’t have
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`to walk around every car and look at it from the
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`front, the back, and the sides to do an
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`exhaustive search for a parked car. We don’t
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`have to look at every bit of data in a record to
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`do an exhaustive search to determine whether each
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`record matches or not.
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` That’s how exhaustive is used in the
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`art. That’s the ordinary meaning of it. And the
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`proof of that, Your Honors --
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` HON. ALVIN A. SCHALL: But you don’t
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`have any evidence of that.
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` MR. DOVEL: We do, Your Honor. We have
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`this, we have how it’s used in the specification,
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`and we have a complete --
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` HON. TIMOTHY B. DYK: What is it in the
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`specification that tells you that the Google
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`construction is incorrect?
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` MR. DOVEL: Your Honor, again, it’s
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`about the context. And I’ll -- the context of
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`every embodiment in a specification -- I’ll walk
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 21 of 47
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`Your Honors through it -- is about looking for an
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`entry in a database.
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` So, if we start with Column 6, this is
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`Appendix Page 98. We use this -- from the 179
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`patent for specification.
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` HON. ALVIN A. SCHALL: 98 you said?
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` MR. DOVEL: Yeah, I’m starting at
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`Appendix Page 98, Column 6. We go down to Line
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`21. What we have is this Work Identification
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`Information Storage 110. That’s a database, it
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`explains. It includes a number of items or
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`records, 112, each of which we associate a
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`feature vector. The vector is the group of data
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`we’re going to be looking at.
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` So, the whole context here -- and we’re
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`going to walk through it -- is always about we’ve
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`got a database, it’s go records, it’s organized
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`by records, each of which has a set of data, a
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`vector that we’re looking at.
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` Let’s go over to Column 8 then, the
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`very next page, starting at Line 49. Here we’re
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`going to have something we’re trying to compare
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`and we’re going to compare it entries of known
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`vectors 114 in a content identification, WID
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`Database 110. The context is trying to find out
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 22 of 47
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`Page 21
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`which entries in the database match.
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` Turn over to the next page, Column 9,
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`starting at Line 38. “If the extracted vector
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`matches a known vector in the content
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`identification base, then the work has been
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`identified.” So what we’re trying to determine is
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`which entries in this database match. And in
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`that context --
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` HON. TIMOTHY B. DYK: It may be that
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`the specification is describing non-exhaustive
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`searches the way you’re describing them, but that
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`doesn’t mean that an exhaustive search doesn’t
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`look at all the data.
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` MR. DOVEL: It does by --
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` HON. TIMOTHY B. DYK: And that other
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`things might not qualify as non-exhaustive
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`searches that don’t look at all the data.
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` MR. DOVEL: It does by definition, Your
`
`Honor. Again, exhaustive always depends on
`
`context, right? If you’re going to do an
`
`exhaustive search for a car, that’s different
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`than an exhaustive search for your car keys. It
`
`requires looking at different data.
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` HON. TIMOTHY B. DYK: But this doesn’t
`
`say that the only kind of non-exhaustive searches
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 23 of 47
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`Page 22
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`are the searches that are described in this part
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`of the specification.
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` MR. DOVEL: No, but what it does tell
`
`us is the context. Are we trying to -- what are
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`we trying to find? If we’re trying to find items
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`in a database that match, we are exhausting if
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`we’ve looked at every item. We don’t have to
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`look at every bit of data in an item to determine
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`whether or not it matches. We have to look at
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`enough data to satisfy or dissatisfy our
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`algorithm.
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` Our expert opined that way. We’ve got
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`an objective source. And, importantly, Your
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`Honor, their construction is completely divorced
`
`from the intrinsic record. Under this Court’s
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`controlling authority, Microsoft v. Proxicon and
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`the subsequent cases, if it’s divorced from the
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`specification it can’t be reasonable. They don’t
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`point to a single line --
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` HON. TIMOTHY B. DYK: If it’s divorced
`
`from a specification that doesn’t tell you what
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`the term means it’s not reasonable?
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` MR. DOVEL: No, Your Honor, it’s not
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`that it -- it doesn’t have to have a definition,
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`the specification. It’s got to be in this
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 24 of 47
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`Page 23
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`context. In this context, there is no suggestion
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`that to search exhaustively we must look at all
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`data. It specifically identifies as an exhaustive
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`search a linear search of all N entries. If
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`we’ve examined each entry, we’ve exhausted. We
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`don’t have to look at each bit of data to
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`exhaust. We have to examine each entry.
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` The contrary -- the converse is also
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`shown here. The very next paragraph on -- it’s
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`Column 9, Line 13. It identifies non-exhaustive
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`searches. Each one of those searches is one that
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`has a mechanism for pruning out and not looking
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`at records.
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` So, all of the examples of non-
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`exhaustive search, every single one of them is an
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`example where it’s going to prune out certain
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`records. Those two things -- and the board made
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`a factual finding that this paragraph here does
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`explain exhaustive and non-exhaustive searches.
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`That factual finding is supported by our expert’s
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`testimony. The Court has to accept that factual
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`finding. Therefore, these passages in the
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`specification do describe exhaustive and non-
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`exhaustive searches.
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` In addition, the board made a factual
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 25 of 47
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`finding as to the ordinary meaning. That
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`Wikipedia article did express the ordinary
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`meaning. That factual finding is supported by
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`our expert’s testimony and by the Wikipedia
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`article itself. As a --
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` HON. TIMOTHY B. DYK: I don’t recall
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`that the board relied on any expert testimony in
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`reaching its conclusion.
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` MR. DOVEL: Well, Your Honor, it
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`reached an initial conclusion --
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` HON. TIMOTHY B. DYK: Did it rely on
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`expert testimony?
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` MR. DOVEL: Yes, Your Honor. I’ll
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`explain it.
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` HON. TIMOTHY B. DYK: Where?
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` MR. DOVEL: If I can explain, it
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`reached its initial conclusion and then --
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` HON. TIMOTHY B. DYK: Where did it rely
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`on expert testimony? Tell me.
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` MR. DOVEL: If we look at record --
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`Page 48.
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` HON. TIMOTHY B. DYK: 48?
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` MR. DOVEL: Yes. Appendix 48. This is
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`the decision -- an example of one of the
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`decisions. And what it does here, it recites its
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`Case 1:14-cv-02396-PGG-MHD Document 153-11 Filed 06/28/19 Page 26 of 47
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`-- this is the top of -- the first full paragraph
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`at the top of the page -- it recites its
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`construction. Then it says: “For this final
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`written decision, after considering the complete
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`record, we maintain our construction of a non-
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`exhaustive search.”
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` HON. TIMOTHY B. DYK: That’s the
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`reference to the expert testimony?
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` MR. DOVEL: Yes, Your Honor. But to
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`determine whether there’s substantial evidence to
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`support the board’s finding, we don’t look for
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`cites in the record. The board doesn’t have to
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`cite it, it just has to be in the record. That’s
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`this Court’s consistent holding in case after
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`case. It’s not a question of gee, well, the
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`board didn’t cite the expert, therefore, we can
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`ignore it.
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` No, the question is -- the board made a
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`factual fi
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