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`Paper No. 49
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`Trials@uspto.gov
`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`CANON U.S.A., INC., GOPRO, INC.,
`GARMIN INTERNATIONAL, INC., AND GARMIN USA, INC.,
`Petitioners
`
`v.
`
`CELLSPIN SOFT, INC.,
`Patent Owner.
`
`__________
`
`Case IPR2019-00127
` Patent 9,258,698 B2
`
`__________
`
`RECORD OF ORAL HEARING
`
`Oral Hearing Held January 28th, 2020
`
`__________
`
`Before GREGG I. ANDERSON, DANIEL J. GALLIGAN, and
`STACY B. MARGOLIES, Administrative Patent Judges.
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`Case IPR2019-00127
`Patent 9,258,698 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`JARED W. NEWTON, ESQ.
`of: Quinn, Emanuel, Urquhart, & Sullivan, LLP
`1300 I Street NW, Suite 900
`Washington, D.C. 20005
`(202) 538-8108
`jarednewton@quinnemanuel.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JOHN J. EDMONDS, ESQ.
`of: Edmonds & Schlather PLLC
`2501 Saltus Street
`Houston, Texas 77003
`(713) 364-5291
`jedmonds@ip-lit.com
`
`RENE VAZQUEZ, ESQ.
`of: Garteiser Honea
`18296 St. Georges Court
`Leesburg, Virginia 20176
`(703) 989-2244
`
`
`The above-entitled matter came on for hearing on Tuesday, January
`
`28th, 2020, commencing at 1:02 p.m. at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia
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`P-R-O-C-E-E-D-I-N-G-S
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`1:02 p.m.
`JUDGE MARGOLIES: Good afternoon and welcome. We
`are here for a final hearing in IPR2019-00127, captioned Canon
`U.S.A., Inc., GoPro, Inc., Garmin International, Inc. and Garmin
`USA, Inc., v. Cellspin Soft, Inc.
`Let me introduce the panel. I am Judge Margolies here in
`Alexandria. Judge Anderson is appearing via video from California
`and he's on the left of the split screen. Judge Galligan is appearing
`via video from our Dallas regional office on the right side of the split
`screen.
`Let's get the parties' appearances. Who do we have
`appearing on behalf of Petitioner?
`MR. NEWTON: Jared Newton on behalf of Petitioner
`Canon.
`JUDGE MARGOLIES: Good afternoon.
`MR. NEWTON: Good afternoon.
`JUDGE MARGOLIES: Who do we have appearing on
`behalf of Patent Owner?
`MR. EDMONDS: John Edmonds and Rene Vazquez on
`behalf of Patent Owner Cellspin.
`JUDGE MARGOLIES: Good afternoon.
`MR. EDMONDS: Good afternoon.
`JUDGE MARGOLIES: We set forth the procedure for
`today's hearing in our trial hearing order. And, as a reminder,
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`Petitioner Canon and Patent Owner each will have one hour of total
`time to present arguments, including arguments regarding the parties'
`motions to strike.
`Petitioner has the burden of proof and will go first. Patent
`Owner will then present opposition arguments. Then, to the extent
`Petitioner has reserved time, Petitioner will present rebuttal
`arguments. And then to the extent Patent Owner has reserved time,
`Patent Owner will present sur-rebuttal arguments.
`For clarity in the transcript and for the benefit of Judges
`Anderson and Galligan, who are participating remotely, when you
`refer to an exhibit on the screen, please identify the exhibit number
`and page number. And when you refer to a demonstrative slide,
`please identify the slide number.
`In Paper 41, Patent Owner objected to some of Petitioner's
`demonstrative exhibits. Yesterday, we held a prehearing conference
`and we ruled that Petitioner may use those demonstrative exhibits
`during today's hearing.
`Are there any questions on behalf of Patent Owner at this
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`time?
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`MR. EDMONDS: Only, Your Honor, also, please let the
`record reflect that the hearing yesterday, because I don't think it was
`recorded, that the parties were told that we need not object during the
`argument of the other party.
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`The judges don't want us interrupting the other party, and that
`our motions to strike and the objections are on file and I recall it being
`said those are preserved.
`I just want that -- because I don't want any ambiguity later that
`if I don't stand up and object while my friend here speaks, that
`someone later on would say that I should have done so.
`JUDGE MARGOLIES: That's correct. We're not
`interrupting arguments by counsel. We have the motions to strike on
`file.
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`Any other questions for Patent Owner?
`MR. EDMONDS: No. Thank you, Your Honor.
`JUDGE MARGOLIES: Okay. Any questions on behalf of
`Petitioner?
`MR. NEWTON: No questions from Petitioner
`JUDGE MARGOLIES: Okay. And, Petitioner, would you
`like to reserve a certain amount of time for rebuttal?
`MR. NEWTON: Yes. I'd like to reserve 20 minutes.
`JUDGE MARGOLIES: 20 minutes.
`You may proceed, Counsel, when you're ready.
`MR. NEWTON: Thank you, Your Honor.
`Good afternoon. My name is Jared Newton. I'm from the
`law firm of Quinn, Emanuel, Urquhart & Sullivan. I represent the
`Petitioner Canon in this proceeding.
`And before I get started on our presentation, I want to make a
`few introductions to some folks who are here from Canon. We have
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`Mr. Tabinori Kamatsuka (phonetic), Mr. Toshinori Araki (phonetic),
`and they're both in town from Japan.
`And then I have Mr. Joey Minatoya and Mr. Kenta Inaba, and
`these gentlemen are sitting behind me. And then my colleague, Mr.
`Minamino, is going to help me with the slide presentation today.
`And throughout the presentation I'll be referring to our
`demonstrative exhibits that were filed. They're filed as Exhibit 1046.
`And, as Your Honor requested, I will do my best to refer to the slide
`numbers as I make my way through the presentation.
`Please go to Slide 4. Slide 4 has an overview of the
`instituted grounds, the grounds that are set forth in our petition, which
`the Board instituted in its Institution Decision.
`As I work my way through the presentation today, I am going
`to focus on Grounds 1 through 4, which are based on the primary
`reference called Hiroishi. Hiroishi, the English translation is Exhibit
`1005, for the record.
`Grounds 5 and 6 are based on a different primary reference
`called Hollstrom. We think that the issues between Hiroishi and
`Hollstrom and their various combinations overlap from one reference
`to the other.
`So that's why I'm going to focus on Hiroishi today during at
`least my opening remarks. Of course, if there are any questions
`about the Hollstrom reference, I'm happy to answer those.
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`Go to Slide 5, please. Now, I'll start with a brief introduction
`of the '698 patent, the patent that is at issue in this proceeding. We
`can go to Slide 6.
`Slide 6 has some background information about the '698
`patent. The title is Automatic Multimedia Upload for Publishing
`Data and Multimedia Content.
`We have on here on Slide 6, the issue date and filing date --
`and what I want to point out is the earliest claimed priority date,
`which is to provisional application 61/017,202 -- and this date is
`December 2007.
`So that's really the date that the parties have focused on for
`purposes of what terms meant at the time of the invention, what was
`obvious, or not obvious, at the time of the invention, is that December
`2007 date.
`We can go to Slide 8, please. I want to start with the basic
`setup, the basic idea of the '698 patent. And what the '698 patent
`talks about is really a system and a method that has these three main
`components; you have a digital camera, you have a mobile phone,
`and you have what the claims and patent refer to as a publishing
`website, which is like a photo sharing website where you can upload
`photos to it.
`And what the patent talks about is that you have
`communication among these three different entities so that you can
`get photographs from the digital camera to the publishing website.
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`And the patent and the claims talk about using a mobile phone
`or a mobile device -- I'll probably refer to it today as a cellular phone,
`too.
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`I don't mean to indicate any distinction between those things,
`but you have the mobile device acting as this intermediary where you
`have a short-range paired wireless connection between the digital
`camera and the mobile phone. That connection is used to transfer
`image data from the camera to the phone.
`And then this phone, acting as an intermediary, is able to push
`or publish those photos to a website using the HTTP protocol, which
`is a specified claim limitation.
`Go to Slide 10, please. An important thing that's discussed in
`the patent specification -- here on Slide 10 we have a callout from the
`specification. This is Exhibit 1001 at column 9, lines 42 through 51
`-- but an important point that the specification makes is that the
`method and system disclosed in the patent can be implemented in
`technologies that are pervasive, flexible and capable enough of
`accomplishing the desired tasks of the method and system.
`And these pervasive and flexible technologies are technologies
`that were very well-known in the prior art. Things like Bluetooth,
`which was around for seven, eight years before the December 2007
`priority date of the '698 patent. Things like HTTP, which had been -
`- which had protocols written and established, again, years and years
`before the '698 patent.
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`And I should also mention and also things like publishing
`websites like Facebook, Picasso, other photo sharing websites that
`were ubiquitous at the time of the invention.
`And an important point I want to make is that the patent is not
`trying to improve these types of known technologies, it's not trying to
`improve Bluetooth, it's not focused on the specific details of
`Bluetooth, it's not focused on trying to improve how users upload
`images to a website, it's just using standard HTTP to do that.
`The focus of the invention is really just combining these three
`entities, the digital camera, the phone and this publishing website, into
`a single system so that photos can get from the camera to a publishing
`website.
`And we talked a lot about in our petition how -- in our petition
`and in our supporting expert declaration, which is the declaration of
`Dr. Vijay Madisetti -- I'll refer to that throughout the day. It's
`Exhibit 1003, for the record -- but we talked a lot about how all of
`these concepts, you know, the patent admits that they're pervasive, but
`the evidence that we've put into the record also clearly shows this.
`It shows that, for example, in our technology background in
`paragraphs 42 through 49 of Dr. Madisetti's declaration, he talks about
`how paired wireless connections using Bluetooth, using concepts like
`cryptographic authentication, were all very well-known in the prior
`art.
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`In paragraphs 50 through 51 of Exhibit 1003 Dr. Madisetti
`talks about how uploading to publishing websites was also very well-
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`known in the art. And then it's also reflected in the specific prior art
`that we included in our grounds of rejection.
`So with that background, I'll transition to the actual prior art.
`If we could go to slide 50, please -- and actually go to 51.
`JUDGE MARGOLIES: 5-1?
`MR. NEWTON: 5-1. So as I mentioned, Grounds 1
`through 4 of the petition are based on the primary reference called
`Hiroishi. And here on Slide 51 we have the cover page of the
`English translation of Hiroishi.
`It's a Japanese patent application publication. It was filed in
`2001, published in 2003. So four and a half years before the
`provisional date of the '698 patent. And this is assigned to Japanese
`company called Fuji Photo Film.
`I will note that the -- Hiroishi is based on the Japanese -- we
`filed the Japanese language version of this reference and we had a
`translation -- translation certificate.
`I don't think there's any dispute over the actual translation
`itself, and I think that's the same for all of the Japanese references that
`we cited in our petition.
`Now, what Hiroishi discloses is a very similar three-
`component setup as the '698 patent. Hiroishi teaches that you have a
`digital camera 50. And you can see it here on the cover page of the
`patent that's on the upper right corner. That's the digital camera 50.
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`It has a short-range paired two-way communication between --
`with a mobile phone. And mobile phone 40 is shown on the left --
`upper left.
`And what that connection allows the digital camera and the
`mobile phone to do is send instructions back and forth for the camera
`to transmit image files to the phone.
`And then the phone is -- Hiroishi teaches the phone is
`configured to upload those photos that are received from the digital
`camera to what it calls a terminal computer. So it's a third-party
`computer.
`And the reason that we didn't cite Hiroishi as an anticipation
`reference is that it doesn't talk about this -- that this terminal computer
`specifically uses HTTP or that it hosts a publishing website.
`So that's where our next reference, which is Takahashi, comes
`into play. You can go to Slide 53.
`JUDGE ANDERSON: Mr. Newton, what is the plain and
`ordinary meaning of "paired" as used in these claims?
`MR. NEWTON: Your Honor, the plain and ordinary
`meaning of "paired," as used in these claims, is really what's described
`in the patent. Why don't we go to Slide 27?
`So the plain and ordinary meaning of "paired," at a minimum,
`has to include what we see here in Slide 27, which is an excerpt from
`column 3, lines 63 through 67 in the '698 patent.
`And this is the only statement in the patent where they actually
`provide a somewhat definitional statement of what "pairing" is.
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`And I want to note that this is in the context of Bluetooth
`pairing. And the patent says -- as we've talked about in our petition
`and in our reply papers, the patent says it's not limited to Bluetooth.
`So I'll make that qualification, but we think that this statement
`here on Slide 27 is where the patent actually says here's what we're
`talking about when we're talking about "pairing."
`And they say Bluetooth pairing involves establishing a
`connection between two Bluetooth devices that mutually agree to
`communicate with each other.
`So what pairing is is using, for example, Bluetooth, or another
`wireless protocol like it, to establish this agreed two-way
`communication between two wireless devices like a camera and a cell
`phone.
`
`JUDGE ANDERSON: So you cite to your reply in this slide,
`is that portion of the '101 patent -- I'm not sure it needs to be, but is it
`cited in your opening petition?
`MR. NEWTON: Your Honor, I will have to confirm that,
`but I will say in our opening petition we made the point that the term
`"pairing" should receive this plain and ordinary meaning. We didn't
`set forth an express definition.
`Obviously, as I think your question is getting at, this issue
`kind of came to a head throughout the course of the proceeding. And
`so we cited in our reply this statement in the patent to explain that the
`patent is taking this very broad understanding of what it means to pair
`two devices.
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`And that definition is consistent with what we've said with
`respect to the Hiroishi reference, which is that it discloses a short-
`range communication between a camera and a cell phone using
`Bluetooth to establish this agreed two-way communication between
`the devices, under the patent's broad explanation.
`JUDGE ANDERSON: Yeah. Bluetooth gets us into a lot
`of things that I don't know that we need to get into. The claim, at
`least the independent claims, don't even talk about Bluetooth.
`Now, your expert, Dr. Madisetti, says something at paragraph
`42 -- and I think you referred to this a minute ago -- a short-range
`paired wireless transmission technique -- he's describing Bluetooth
`generically -- allowing two electronic devices to connect and transfer
`data.
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`Okay. That seems to track with your Slide 27. So I'm
`going to say I'm thinking that that's your plain and ordinary meaning
`for a paired wireless connection; is that right.
`MR. NEWTON: Yes. See, Your Honor, I -- we'll use that.
`I understand to be consistent with what's shown here on Slide 27.
`And that, in the context of this patent, is how they describe "pairing."
`And referring to the claim construction dispute that's arisen,
`and I think you hit the nail on the head, Your Honor, which is there --
`the patent deliberately doesn't limit itself to Bluetooth.
`And so this concept of reading in all these additional features
`of the Bluetooth specification ends with the definition of "pairing,"
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`when the patent doesn't do that, doesn't talk about those specific
`features.
`And when the patent says we don't want to limit ourselves to
`Bluetooth, that, to us, is just plainly improper under the BRI standard
`that's being applied in this case under the Phillips standard, too,
`frankly. You can't read in limitations from extrinsic sources to
`contradict what's in the patent.
`And so the patent, to us, is endorsing a very broad notion of
`pairing and that's what's set forth here in Slide 27, which I believe is
`consistent with what Your Honor said.
`JUDGE GALLIGAN: Counsel, if we adopt at least partially
`Patent Owner's construction and then the part I'm thinking about is the
`third prong that says that you can -- you make -- you don't have to --
`once you pair it, you don't -- you can disconnect and you don't have to
`re-pair or reauthenticate.
`Does the Hiroishi reference or does the Hollstrom reference
`teach that?
`MR. NEWTON: So I would argue it teaches it through its
`disclosure of Bluetooth, because what that would -- what Patent
`Owner's definition or construction seems to be getting at is collapsing
`this idea of pairing back into Bluetooth, as it was known at the time.
`And so Hiroishi and Hollstrom would get that through their disclosure
`of Bluetooth.
`To the extent that -- I will agree that they don't expressly
`disclose that, when you establish this paired Bluetooth connection,
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`you can go walk away from the device and then come back, you
`know, two days later and have them recognize each other.
`That specific -- to the extent that is a specific requirement of
`the definition, however, that is plainly obvious because that is, as the
`evidence demonstrates throughout this record, that is the most obvious
`and most common use case of Bluetooth.
`And so our position is that a person of skill in the art reading a
`reference like Hiroishi and seeing this disclosure of Bluetooth
`between these two devices and saying this is used to establish this
`agreed communication between the two devices, that is the common
`default configuration of Bluetooth and it meets these additional
`requirements that Cellspin is trying to read into the claims.
`But to the extent the Board finds that some -- one of those
`specific requirements is not stated in the reference, it's plainly obvious
`to use Bluetooth in that way.
`JUDGE MARGOLIES: Are you adding a new argument --
`we're just talking about the pairing aspect.
`MR. NEWTON: Uh-huh.
`JUDGE MARGOLIES: In your petition, you don't rely on
`obviousness for just pairing, right? And you -- it seems like you
`went to that in your reply after the claim construction issue came up in
`Patent Owner's response.
`Is that something you should have anticipated in your petition?
`MR. NEWTON: Well, number one, it -- we don't agree that
`it's not in our petition because what's happened here is that Patent
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`Owner has taken this narrow definition of "pairing" and they're
`reading in these things like providing for encryption, their definition
`mentions authentication, it mentions the concept that Your Honor
`mentioned, which is you can walk away and come back and reconnect
`automatically. Those are very specific features of Bluetooth.
`And what we said in our petition is "pairing" gets this plain
`and ordinary meaning, but we also talked about this cryptographic
`authentication piece where we use specifically the Bluetooth standard
`to say it would be obvious to implement in -- it would be obvious to
`use the Bluetooth standard to do these things like establish
`cryptographic authentication within the context of Hiroishi or
`Hollstrom.
`Now, our position is that when you do that, you're meeting --
`you're getting to what Cellspin is trying to argue is this more specific
`definition of "pairing."
`When you use Bluetooth to cryptographically authenticate a
`device like the one in Hiroishi or the one in Hollstrom, you're meeting
`these additional pairing requirements that they've set forth that they've
`derived from the Bluetooth standard.
`So the -- we look at it as kind of a form over substance
`argument. They say that you didn't specifically say that you would
`use Bluetooth to make a pairing connection between them, but the
`substance is that we did say exactly that.
`We said, you take Hiroishi, you take Hollstrom, you look at
`the Bluetooth specification and you use it to modify those references
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`to implement cryptographic authentication. That's getting you
`everything you need in pairing.
`And then separate from that we have what's arisen in the
`context of the motions to strike and the reply, which is we couldn't
`have anticipated this very narrow construction.
`You look at the '698 patent and it says we're not limiting
`ourselves to Bluetooth. Patent Owner came back and said we're not
`only following that and limiting it to Bluetooth, but we're limiting it to
`these very specific features.
`Under BRI standard, it's not incumbent upon us, the Petitioner,
`to try to anticipate that they're going to make such a narrow argument
`and then, you know, explain and front it in our petition.
`And so when we cited this evidence in our reply such as
`admissions from their expert, Dr. Foley, when he said pairing, under
`Cellspin's definition, it's obvious it was part of Bluetooth Version 2.1
`+ EDR and we went through, at length in his deposition, prior
`statements he had made, articles he had written where he touted all the
`benefits of pairing under that version of the Bluetooth specification.
`All that evidence is completely proper in response to this narrow
`definition that they set forth in their construction.
`Why don't we go back to Slide 58? So Slide 58 includes the
`evidence that we relied on from the Hiroishi reference to explain that
`it discloses "pairing" under the plain and ordinary meaning of the
`term.
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`Case IPR2019-00127
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`And what we have here is an excerpt from paragraph 66 of the
`Hiroishi reference, Exhibit 1005. This is discussed in more detail in
`our petition, pages 23 through 24, and in Dr. Madisetti's declaration,
`Exhibit 1003, paragraphs 96 through 98.
`But what Hiroishi discloses is that you have this
`communication mechanism between a digital camera and a cell
`phone; and like anyone in the art would understand, if you're using
`Bluetooth to do it and you're establishing this agreed two-way
`communication between the devices, which is illustrated in Figure 1
`of the patent, and when you do that, you have paired those two
`devices, that's what the patent says "pairing" is and that's what our
`expert testimony explains that's what "pairing" is as well.
`And I mentioned the expert testimony. Just, for the record,
`Dr. Madisetti was asked about this at length in his deposition. His
`deposition transcript was filed as Exhibit 1042.
`And some of the relevant pages where he's asked and talking
`about looking at this type of arrangement in Hiroishi where you've got
`a digital camera and a cellular phone communicating over Bluetooth
`and agreeing to this two-way communication, what would a person of
`ordinary skill in the art recognize that as? And he says that's pairing.
`That's at pages 51 -- and these are transcript pages. So transcript
`page 51, 12 through 21. And additional information about why that's
`consistent with pairing as described in patent is at transcript page 21,
`12 through 22.
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`Case IPR2019-00127
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`So we talked about why Hiroishi discloses the pairing
`limitation under the plain meaning. I do want to talk about the
`evidence that I mentioned which is even under Cellspin's narrower
`construction where you're kind of limiting it to the specific version or
`specific features of the Bluetooth specification.
`The evidence that shows it would have been obvious to use
`pairing even under that narrow construction is really overwhelming in
`this case.
`So I'll first go to -- well, first, I want to go back to what I
`mentioned, which is some of Dr. Foley, Cellspin's expert's prior work
`in this area.
`And Dr. Foley is -- he is a -- he was part of the committee that
`wrote the Bluetooth -- worked on the Bluetooth standard and he -- part
`of his job is he went out to promote the standard. So he went out to
`tell people, hey, here's why you should use Bluetooth to do things like
`pair a camera and a cell phone.
`And we found -- in anticipation of his deposition we found
`some of his old statements and old articles where he was quoted that
`make this exact point.
`And so one of those is 1036 -- Exhibit 1036, which is
`discussed in our reply brief around pages 9 through 11, but 1036 at
`page 8 through 10 there are quotes from Dr. Foley talking about the
`advantages of pairing using this mechanism in Bluetooth Version 2.1
`+ EDR.
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`Case IPR2019-00127
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`And he says things like using this pairing technique enhances
`user experience, it increases security, it simplifies the pairing process
`so that anyone can do it and it reduces the impact on device and
`silicon manufacturers.
`So that's all testimony from the time -- before the time of the
`invention. This article was dated, I believe, July 2007 -- so six
`months before the provisional date of the '698 patent -- where Dr.
`Foley is saying, here are all the reasons why you want to use
`Bluetooth pairing under this Version 2.1 + EDR.
`So in our view, that's highly relevant, undisputed testimony
`from the time of the invention explaining why pairing is obvious
`under this construction that Cellspin has advanced.
`And I'll also refer to Dr. Foley's deposition transcript, which is
`Exhibit 1040. We walked him through these articles and said that
`was your understanding at the time as a person of skill in the art.
`And he said yes. And that's pages 40 through 46, is where we
`walked through those articles.
`JUDGE MARGOLIES: How about for this particular use
`that's covered in the claim? Would it also be obvious for that?
`MR. NEWTON: Absolutely. All the reasons that Dr. Foley
`mentioned, I think, are directly applicable to this situation where
`you're pairing a phone and a camera.
`There's additional evidence, however, where -- and I'll cite
`Exhibit 2023, which is the Bluetooth Basic Imaging Profile. And
`this is a document that Cellspin introduced into this case.
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`Case IPR2019-00127
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`And what the Basic Imaging Profile says is -- and I should
`point out this was a document that was published in 2003. So again,
`we're talking years before the provisional date of the '698 patent.
`And what this Basic Imaging Profile says is, use Bluetooth for
`this specific use case where you're connecting a camera to a -- a
`digital camera to a phone and using them to transfer image data back
`and forth.
`And the document -- we talked about this in our reply, but the
`document goes even further and it says, once you get the images from
`the camera to the phone, you can use them to publish it to another -- it
`doesn't say "publishing website," but you can upload it to another
`computer over a network. So this same concept of the patent, only
`four years earlier.
`And there's a specific teaching in the reference of this feature
`called AutoArchive that you can use if you're implementing the
`Bluetooth Basic Imaging Profile.
`And what AutoArchive is is if you -- very similar to what's
`described in the '698 patent. If you have a bunch of photos on your
`camera and you want to upload them to your phone to clear memory
`on the camera or just to keep them backed up, you can use this
`AutoArchive feature.
`And what this Basic Imaging Profile says in that instance, is
`it's highly recommended to use pairing to do that. And so that's an
`experts disclosure from four years before the '698 patent of using
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`Case IPR2019-00127
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`pairing -- motivation to use pairing in this exact same scenario that's
`described in the '698 patent.
`And Dr. Foley, who -- as I mentioned, Cellspin introduced this
`exhibit, 2023, the Basic Imaging Profile specification, into the
`proceeding.
`And when Dr. Foley looked at it, he only focused on these two
`corner cases within the document which talk about image push and
`image pull.
`And he says, in those two cases, which are separate from this
`AutoArchive case, pairing is optional and it's up to the implementer's
`discretion.
`Even accepting that argument, that is a design choice.
`Implementer's discretion is synonymous with design choice. I don't
`see any other way to, you know, say that those are two different
`things.
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`And so what that Exhibit 2023 is saying is that in these two
`cases of pushing and pulling, sure, pairing is a design choice. In this
`case of automatic archive, we highly recommend that you use pairing.
`So either under KSR or under a more strict standard that requires an
`express motivation, it's there.
`JUDGE MARGOLIES: I was just going to ask you --
`JUDGE ANDERSON: So Mr. --
`JUDGE MARGOLIES: Go ahead.
`JUDGE ANDERSON: I'm sorry, Judge Margolies. Go
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`ahead.
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`JUDGE MARGOLIES: I was just going to ask you the cite -
`- and you don't have to find it for me right now, but at some point, for
`where it expressly disclosed the desirability for the AutoArchive.
`MR. NEWTON: Oh, sure. We can actually go to -- I
`believe it's Slide 17.
`JUDGE MARGOLIES: I'm sorry, what slide number?
`MR. NEWTON: This is Slide 17.
`JUDGE MARGOLIES: 1-7?
`MR. NEWTON: 1-7. And so this is Exhibit 2023, the
`Basic Imaging Profile, page 16. And it says -- I'm reading the last
`sentence in this excerpt that we have here on Slide 17: In the case of
`Automatic Ar
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