Trials@uspto.gov
`571-272-7822
`
`
`Paper 71
`Entered: December 6, 2021
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`DISH NETWORK L.L.C.,
`AT&T SERVICES, INC., and DIRECTV, LLC,1
`Petitioner.
`
`v.
`
`BROADBAND iTV, INC.,
`Patent Owner.
`
`__________
`
`IPR2020-01267
`Patent 10,028,026 B2
`
`__________
`Record of Oral Hearing
`Held: November 1, 2021
`__________
`
`Before JEFFREY S. SMITH, JUSTIN T. ARBES, and DANIEL J.
`GALLIGAN, Administrative Patent Judges.
`
`
`
`
`
`
`
`
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`1 AT&T Services, Inc. and DIRECTV, LLC filed a motion for joinder and a
`petition in Case IPR2021-00556, which were granted, and, therefore, have
`been joined as petitioners in this proceeding.
`
`
`571-272-7822
`
`
`Paper 71
`Entered: December 6, 2021
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`DISH NETWORK L.L.C.,
`AT&T SERVICES, INC., and DIRECTV, LLC,1
`Petitioner.
`
`v.
`
`BROADBAND iTV, INC.,
`Patent Owner.
`
`__________
`
`IPR2020-01267
`Patent 10,028,026 B2
`
`__________
`Record of Oral Hearing
`Held: November 1, 2021
`__________
`
`Before JEFFREY S. SMITH, JUSTIN T. ARBES, and DANIEL J.
`GALLIGAN, Administrative Patent Judges.
`
`
`
`
`
`
`
`
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`1 AT&T Services, Inc. and DIRECTV, LLC filed a motion for joinder and a
`petition in Case IPR2021-00556, which were granted, and, therefore, have
`been joined as petitioners in this proceeding.
`
`
`
`IPR2020-01267
`Patent 10,028,026 B2
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`
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`CLEMENT ROBERTS, ESQ.
`K. PATRICK HERMAN, ESQ.
`of: Orrick, Herrington & Sutcliffe LLP
`The Orrick Building
`405 Howard Street
`San Francisco, CA 94105-2669
`United States
`415-773-5700
`croberts@orrick.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`HONG LIN, ESQ.
`RUSSELL TONKOVICH, ESQ.
`of: Feinberg Day Kramer Alberti Lim Tonkovich & Belloli LLP
`577 Airport Boulevard
`Suite 250
`Burlingame, California 94010
`650-825-4300
`hlin@feinday.com
`
`
`
`The above-entitled matter came on for hearing on Monday,
`
`November 1, 2021, commencing at 10:00 a.m. EDT, via Video
`Teleconference.
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`IPR2020-01267
`Patent 10,028,026 B2
`
`P-R-O-C-E-E-D-I-N-G-S
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`
`10:00 a.m.
`JUDGE ARBES: Thank you. Good morning, everyone. This is the
`oral hearing in Case IRP2020-01267, involving Patent 10,028,026. Can
`Counsel please state your names for the record? Petitioner, Dish.
`MR. ROBERTS: Good morning, Your Honors. This is Clem
`Roberts from Orrick, Herrington & Sutcliffe, for the Petitioner. And with
`me, also speaking today, will be Patrick Herman, who is also on the video.
`JUDGE ARBES: Thank you. And do we have anyone on the line
`for the joined Petitioners AT&T and DIRECTV?
`Okay. Counsel for Patent Owner?
`MR. LIN: My name is Hong Lin with the law firm of Feinberg Day.
`I'm going to be joined today by Russell Tonkovich, also with Feinberg Day.
`For Patent Owner.
`JUDGE ARBES: Great, thank you. Per the Trial Hearing Order,
`each party will have 60 minutes of total time to present arguments today.
`Because some material has been filed under seal, the hearing will be divided
`into two portions.
`A public portion, where the public may be present, and then a
`confidential portion involving only the parties and the Board. Per the party's
`requests, Petitioner will have 35 minutes for the public portion and 25
`minutes for the confidential portion.
`And Patent Owner will have 30 minutes for the public portion and
`30 minutes for the confidential portion.
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`IPR2020-01267
`Patent 10,028,026 B2
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`In each portion the order of presentation will be, first, Petitioner will
`present its case regarding the challenged claims and may reserve time for
`rebuttal. Patent Owner may than respond to Petitioner's presentation and
`may reserve time for sur-rebuttal.
`Petitioner than may use any remaining time to respond to Patent
`Owner's presentation. And finally, Patent Owner may use any of its
`remaining time for a brief sur-rebuttal responding to Petitioner's rebuttal
`arguments only.
`A few reminders before we begin. We have received the parties'
`demonstratives and are able to view them on our screen. To ensure that the
`transcript is clear and everyone can follow along, please refer to your
`demonstratives by slide number.
`Please also keep your microphone muted when you are not speaking.
`When it is your turn to argue, please speak slowly. And if you hear another
`voice, please stop so that we don't talk over each other.
`Also, if either party believes that the other party is presenting an
`improper argument, we would ask you to please raise that during your
`presentation rather than interrupting the other side at the time.
`Finally, the parties should not refer to any sealed material during the
`initial public portion of the hearing today. Any questions from the parties
`before we begin?
`MR. ROBERTS: No questions from Petitioner.
`MR. LIN: No questions from Patent Owner.
`JUDGE ARBES: Okay. Counsel for Petitioner, you may proceed.
`And would you like to reserve time for rebuttal?
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`IPR2020-01267
`Patent 10,028,026 B2
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`
`MR. ROBERTS: Yes, thank you so much, Your Honor. This is
`Clem Roberts, I'll be arguing the 026 today. And if we're going to do them
`in two sections, I assume I'm reserving just for the public portion initially.
`JUDGE ARBES: It would be. Yes.
`MR. ROBERTS: Okay. So of the 35 minutes I'd like to reserve ten
`minutes for rebuttal, if that would be all right.
`JUDGE ARBES: Okay.
`MR. ROBERTS: Thank you, Your Honors. Okay. So on my slides
`we're going to start with the public portion. Why don't we turn to Slide 40,
`which provides an overview of what the claim mapping disputes are at issue
`between the parties?
`So rather than walk through every limitation, I thought what I would
`try to do is focus on what the disputes are between the parties. And there is
`really one dispute as to the independent claim, which deals with whether or
`not the three layer template of Claim Limitation 1(b) is taught. And then
`there are also some disputes with respect to some of the dependent claims, in
`particular, 6, 11, 12 and 15.
`If at any time the Board has any questions at all, it would be
`extremely helpful to get them, I very much would like to respond to any
`questions or issues you have. Hearing myself talk is not one of my chief
`joys in life.
`Okay. So if we can turn to Slide 42 please. The limitation that is
`really in dispute in the independent claim is Limitation 1(b). And Limitation
`1(b) has three elements to it. An (a), a (b) and a (c).
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`IPR2020-01267
`Patent 10,028,026 B2
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`
`And of these three, I don't think the first two are really in dispute.
`Maybe my opposing Counsel will tell me otherwise. But Limitation (a)
`requires a first layer comprising a background screen to provide at least one
`of a basic color logo or graphical theme display.
`And we pointed to the background, in particular, with respect to two
`figures. Figure 5, and its adjacent 5a and 4, and Figure 7. And with respect
`to Figure 5 and its adjacents we offer two separate and distinct theories.
`The first is that the background is a color background in 5b. And the
`second is that all of 5b is a background on top of which you then layer 5a to
`arrive at Figure 4. And these were two distinctly presented theories in the
`petition.
`And with respect to Figure 7, we argued that what is shown,
`highlighted in red in Slide 42, that's an annotation, was the background. Or
`at the very least, obviously could be rendered as a background.
`Moving to Slide 43, and to Limitation (b). Limitation (b) of 1(b), so
`we're on 1(b)(b), calls for a second layer that has a template. And it has to
`have a set of reserved areas.
`So these are areas in the template that are reserved for particular
`types of contents. And again, I don't think there is any dispute that there is
`second areas in the templates.
`And we pointed to several different reserve areas. So for example,
`within Figure 4 and Figure 5 we pointed to logo section 102 as being a
`reserved area for the logo.
`And we pointed to the selected Sections 104 and 114, as well we the
`video 152 in Figure 7 and 156 and 158 also in Figure 7. So we pointed to a
`
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`IPR2020-01267
`Patent 10,028,026 B2
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`number of different reserve areas, which are separately called out by
`Gonder. And we pointed to all of those as needing this second layer of a
`plurality of reserved areas. And again, I don't think there is a dispute about
`that.
`
`Slide 44. When we get to Limitation (c) we get to the heart of the
`mapping dispute with respect to Claim 1 of 026 patent. And what I'd like to
`point out to the Board is that there are really two separate things going on in
`Limitation (c).
`The first, highlighted in green at the bottom, is what is required to be
`in the third layer. And the third layer really is just content that goes in the
`reserve areas.
`And what Limitation (c) says is that you have to have a third layer,
`that is displayed. And it has to be at least one of text, an image, a navigation
`link and a button. That's what's highlighted in green.
`There is in addition this yellow language, or language highlighted in
`yellow, that talks about how that one of text, an image, a navigation link and
`a button is generated. And in particular it says it's generated using, the
`received video content, the associated metadata and the associated plurality
`imaging.
`Now, when we filed the petition the approach we took was to show
`that every job entail of Limitation (c) was met. And we pointed out how
`things were generated using the received video data, the associated metadata
`and the plurality of images. And how it contained at least one of text, an
`image, and navigation link and a button.
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`IPR2020-01267
`Patent 10,028,026 B2
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`
`In the Board's institution decision it really focused on the language in
`green. And when it instituted it said, there is at least one of text, an image, a
`navigation link and a button.
`And what we then responded in our reply and pointed out was that
`the Board is actually correct. That the yellow language is not limiting for
`purposes of invalidity as a matter of law.
`And the reason is, that it is a nested product by process limitation.
`The yellow language does not tell us what must be a structure or what is
`displayed or anything about what the templates comprise.
`What is purely a description of how things are generated. And it
`doesn't even say how they're generated, it just tells you something about
`some aspects of the source material that is used in some way. And that is a
`hallmark of a nested product by a process of limitation.
`Slide 45.
`JUDGE ARBES: Counsel, can you explain why this is not an
`improper new argument in the reply?
`That was certainly a position that you could have taken at the time of
`filing the petition but you did not. So why is this proper now?
`MR. ROBERTS: Yes, thank you so much, Your Honor. Slide 45 is
`my response to that.
`So, it is certainly not an argument we presented in the petition.
`That's true. But I would argue two things. First, this is really a claim
`construction argument. And there is ample law from the federal circuit, and
`from the PTAB, that claim construction arguments, if presented, and there is
`an opportunity to respond, are not waivers.
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`IPR2020-01267
`Patent 10,028,026 B2
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`And the reason I think for that, from a policy perspective, is we're
`not trying to seek new mapping in. This is not a case where we've come
`back and said, well, actually we have another theory about how the prior art
`reads on the limitation.
`This is just a question of whether the limitation has force and effect
`with respect to invalidity or not. And that is a purely legal issue, which is
`within the Board's discretion to decide.
`And so, what I would say is, Your Honor, it is a new argument. I'm
`not going to dispute that. It's not in the petition. It is possible we could have
`presented it, that is true.
`It is also true that as both in Hamilton Beach and in Unified Patents,
`where the argument was a claim construction argument the Board found now
`waiver, whereas the other side had an opportunity to respond. Which they
`clearly do here.
`Now, the other thing I will point out about this, from the perspective
`of being a claimed construction argument, which again, both Hamilton
`Beach and Unified Patents involve claim construction arguments, is again,
`we are not attempting to have some new theory about how the prior art
`breaths on the claims. It is only a question of whether or not you should
`give it force and effect.
`And the Board does that all the time in terms of considering new
`claim construction arguments during the merits phase of the trial. I would
`point out, for example to the Board, that when you construe the claimed
`term, web based content management system in the institution decision, you
`encourage the parties to talk more about that construction during the trial.
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`IPR2020-01267
`Patent 10,028,026 B2
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`Claim construction is, I think, when you're talking about a pure
`matter of law, something that the Board just tries to get right. And in trying
`to get it right sometimes the Board has to look at the merits of the argument
`as they evolve.
`And I would also point out finally, that we raised this really in
`response to the Board's institution decision. The institution decision, as I
`said, properly focused on the language in green. And we said, well, the
`Board is right, that is a reason why this Limitation (b) is met without regard
`to anything else.
`I want to move on to --
`JUDGE ARBES: Well, I guess I would say --
`MR. ROBERTS: Yes.
`JUDGE ARBES: -- just because something is mentioned in an
`institution decision and something else is not mentioned, I don't believe that
`that is any sort of finding that a limitation is not limiting or any suggestion
`to the parties that we were reading it that way.
`It does appear that this is a new theory in that you were arguing in
`the petition that this limitation is limiting, and this is where the prior art
`teaches it, and now you're saying that we don't need to worry about it, that
`it's not limiting. That does seem to be a new theory.
`MR. ROBERTS: So in that sense I agree, Your Honor, that it is new
`because you are correct. Now, I did not argue that it was limiting.
`I think what we argued in the petition was that it was met. That it
`was satisfied. And there are lots of places, in fact in the petition, although
`not this one, where we said, to the extent to which this is a limitation is met.
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`IPR2020-01267
`Patent 10,028,026 B2
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`
`So for example, the wherein clause in this, and all the others, we
`argued, to the extent that this is limiting it's satisfied. We didn't use that
`same linguistic formulation when making this particular argument.
`But I think it's very clear that there are a number of limitations in
`here which may or may not be actually limiting. Right. Wherein clauses,
`for example, between the parties in the district court case, as to whether or
`not the wherein clause is limiting.
`But we still attempted to show that it was satisfied by the prior art
`because where the Board doesn't need to decide that issue it's usually an
`abundance of caution, you want to show it anyway.
`But even if the Board is not going to consider that under a waiver
`theory, and we would encourage the Board to do so, but even if the Board is
`not, what I would say is, Gonder clearly discloses content that is generated
`from all three required types.
`And if I can ask the Board to turn to Slide 46 here. So, in Slide 46 I
`have colored coded the three required types of information. The received
`video content, the associated metadata and the associated plurality of
`imaging.
`And as a practical matter, they don't challenge two of the three. So
`they have it challenged that, what I have highlighted in yellow, which is 152
`from Figure 7, shows that there is third layer content comprising reserved
`area content generated using received video. They didn't challenge that in
`their arguments.
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`IPR2020-01267
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`They, likewise, did not challenge what I've shown in green, which is
`that there is third layer content that is generated with the associated
`metadata. They haven't challenged that.
`The only thing they are challenging, as I read their papers, is the idea
`that it is created using an associated plurality of images. And that is created.
`There is third layer content generated using an associated plurality,
`the associated plurality of images. And if not, it would have been obvious to
`do so in light of Gonder's teachings.
`Now, where I want to start here is, if I can ask the Board to turn to
`Slide 47. I want to start with 5b. Because we expressly argue, in the
`petition, that logo area 102 was a separate section. That it was distinct from
`the background within Figure 5b.
`And if you look at the quote I have up here from Gonder, it says, in
`this example the video segment 118 comprises the logo section 102 in
`stylized text and background in multiple color. So the logo section in
`stylized text is separate from the background because they are joined by the
`conjunctive and. They are different things.
`And we express --
`JUDGE ARBES: But Counsel, is it really separate things or is this
`description in Gonder just describing the portions of the screen as you see
`them, for descriptive purposes? Are they really separate?
`Because Patent Owner makes the argument that this is a video
`segment. A singular video segment that may show different things in the
`video, but it is one unitary body.
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`IPR2020-01267
`Patent 10,028,026 B2
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`
`And this is just a description of certain things that are shown on this
`screen. So are they really separate?
`MR. ROBERTS: So the answer is, absolutely, they are. Yes. So,
`what you mean by video segment, first of all, is the way in which something
`is transmitted, right?
`But if we're talking about how it's put together, it says it's a logo
`section 102 and a background. So how do you look at that and say, no, no,
`the logo section is the background.
`If you have a background in stylized colors, they're in multiple
`colors, and a logo section you have two things. And the logo section is over
`the background.
`Now, Gonder doesn't color the background --
`JUDGE ARBES: But Counsel --
`MR. ROBERTS: -- so it doesn't show whether, it would be very
`weird --
`JUDGE ARBES: I'm sorry.
`MR. ROBERTS: Sorry.
`(Simultaneous speaking.)
`JUDGE ARBES: Gonder does not describe, I'm sorry -- Gonder
`does not describe exactly how this is created, right?
`This video segment 118 may be a ten second MPEG file, for
`instance. But it doesn't describe how that's created at all, does it?
`MR. ROBERTS: It doesn't specifically describe the method of
`putting it together, but it does say it comprises two things, a logo section and
`a background section.
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`And our argument is from that. A person of ordinary skill in the art
`would have understood that it has both a reserved area and a background.
`Or at least that would have rendered that idea obvious.
`I mean, if you say you have a and b, you have background and
`colors, a person of ordinary skill in the art reading this would have on the
`page right here would say, oh, I can have a background that has a color.
`And I can have a logo section.
`And into that logo section I could put a logo. I mean, that's just a, I
`mean, like that is a simple, obvious reading of the text that's right here.
`Especially where they don't dispute that Gonder teaches lots of
`sections with lots of different things being put into them. I mean, they don't
`dispute that there are descriptive, go back to Slide 46 which shows Figure 7,
`there is no dispute. They don't dispute that 156 and 158 show sections of
`templates with content in it from the metadata.
`And the other thing I would point out here, as Your Honors pointed
`out in the institution decision, Gonder mentions the ADI specification
`numerous times. And that is part of what a person of ordinary skill in the art
`would know and understand.
`And it was well known at the time that the ADI specification called
`for various still images to be included in the ADI packages for use in the
`menus. And if Your Honors want to see that specifically, I would ask you to
`turn to Slide 52.
`Which actually has the quote from CableLabs specification. And
`whether or not it's incorporated by reference I don't think matters. The point
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`is that this was known in the art when you mentioned ADI because this is the
`definition of the ADI specification.
`And it says, this image is for the additional information interface to
`be shown on the MOD/VOD library screen and is additionally used as a
`fallback when preview is not available. Multiple still image assets are
`acceptable, however, only one box cover and one poster are permitted with
`this version of the spec.
`So it was well known to people who were working in this field that
`the ADI packages contained box covers and posters for use in these video
`libraries.
`And when you look at Figure 5b of Gonder, and I'm back now on
`Slide 47 again, when you look at Figure 5b and it says that you have a logo
`section with a logo, which everybody agrees can be an image or is often an
`image, and you have the ADI specification, and Gonder is saying we're
`working with the ADI packages, which contain images for use in the menu, I
`would say, and Dr. Russ would say, did say, that it is very obvious that you
`can put images into various sections of the screen.
`And even if you have to make that combination, and here I'm on
`Slide 46, by looking at Figure 7, and saying, well, we knew that you could
`have still images, and Figure 7 is showing still images, I'm going to read
`Gonder extremely narrowly and limiting as showing those images in the
`background. But I still then know that there is a background and there's a
`foreground with sections, which are populated with metadata.
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`And I know that part of the metadata of the ADI specification are
`still images. And right there you have everything you need for Limitation
`(c).
`
`JUDGE SMITH: So let me ask you this --
`(Simultaneous speaking.)
`JUDGE ARBES: I'm sorry --
`JUDGE SMITH: Go ahead.
`JUDGE ARBES: Go ahead.
`JUDGE SMITH: I was just going to ask, so looking at Slide 46, the
`Figure 4 and the Figure 7. So Figure 7 doesn't have the logo, which you're
`relying on for the plurality of images, is that correct?
`MR. ROBERTS: Figure 7 does not have the logo in it. Do you have
`testimony from Dr. Russ, which is cited in the petition, saying it would have
`been obvious to put a logo on this screen because there is no logo anywhere
`else on the screen?
`So he points at Figure 7 and he says specifically, well, a person of
`ordinary skill in the art looking at this, knowing this is HBO OnDemand, it
`was obvious to put a logo at the top of the screen because you're showing
`something within the HBO OnDemand university. And that's just a design
`choose, that's not a --
`JUDGE SMITH: So it would be, just to wrap my head around it, it
`would be like taking what's shown in Figure 4, where you have the metadata
`with the logo on top of it, you would do something similar in Figure 7 where
`you have the metadata with the logo on top of it, is that what you're saying?
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`IPR2020-01267
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`MR. ROBERTS: Sure, you could. But I guess what I'm making is
`I'm making a slightly broader argument, Your Honor.
`What you have when you look at these two figures, and you look at
`the ADI package, is you have the teaching that you can have images. You
`have the teaching from Figure 4 that you can have images in a reserved area.
`I think you fairly have that teaching from Figure 7 as well because,
`again, it's not everywhere. There are defined lines around the boxes 152 and
`154 that have images in them.
`And by the way, they haven't challenged that 152, the yellow box,
`shows video in the third layer. So in some sense we ought to just be done at
`that point.
`But even if you're just relying on the green boxes in Figure 7 you
`have, at a minimum, a teaching that you can have a background and then
`you can have reserved areas and then you have content that is metadata in
`those reserved areas.
`And at that point, when you know that ADI allows you, or had
`images in it, it's perfectly bloody obvious that you would put those images in
`the reserved areas, because that's what they're there for is for metadata that's
`provided with the video. And the ADI package says some of the metadata is
`images.
`So I don't think we need to bodily incorporate 4 and 7 together, but
`certainly you could.
`JUDGE ARBES: Counsel, can we focus on Figure 7 for a moment?
`In particular, the two green boxes.
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`IPR2020-01267
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`
`Those are, the claim requires that the third layer comprise reserved
`area content generated using these certain things and displayed as text,
`image, navigation links, or buttons. Those presumably, in your view, are
`text and navigation link, is that correct?
`MR. ROBERTS: They're at least text and navigation link. It does
`say, Gonder does, when it's talking about 156, it does say that it's animated
`text. So I think you could, fairly from that, say that potentially 156 included
`some form of animation as well. Or included some functionality merely,
`that work on being graphics.
`JUDGE ARBES: Yes. Okay, so --
`MR. ROBERTS: But at a minimum --
`JUDGE ARBES: -- how is that --
`MR. ROBERTS: -- metadata.
`JUDGE ARBES: How is that generated using the received video
`content, the associated metadata, and the associated plurality of images?
`What's shown in green there, how is that generated using those
`things?
`MR. ROBERTS: Yes. So, what they argued in the district court is,
`for example, that these things are only generated if there is video and images
`and metadata available on the server.
`And therefore these, and this is their theory in the district court, and
`therefore these things are generated using those things because they only
`come into existence because those things exist on the server. That's the
`theory they've presented in the district court.
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`IPR2020-01267
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`
`But at a minimum I would say, at a bare minimum, these buttons are
`created using the associated metadata. And you would then look at the HBO
`OnDemand 102, or the Sex in the City 154, to get to the still image.
`And you would look at the yellow box video content, right? And
`that would be, that would give you the video.
`Now you say, well, how is that text and image and navigational link
`in a button, I would say 152, 154 are images. Right. So you don't have to
`have a single text that is generated using an image, you have to have at least
`one of.
`
`But in this case we have video text, links and images. And they are
`all generated using different ones of the examples. I mean, I don't know
`how you get a, any piece of text that is necessarily generated using all of an
`image and a video. I mean, I don't even know what that would mean.
`So, the language is a little wonky here. But I think at a minimum, if
`you have text, a link, an image and a video, you have it.
`And what's amazing about Gonder, as a piece of prior art, is it shows
`all of it. And their response is merely, well, Gonder teaches that in some
`embodiments is in the background, and so therefore it would not have been
`obvious to put them in the foreground.
`And I don't know what to make of that argument. I mean, Gonder
`teaches that you have all sorts of boxes all over the place. You're filling
`them with a variety of content, including logo area which you're filling with
`image.
`
`And then the argument is from that, and even including the
`knowledge of a person of ordinary skill in the art of ADI that had images
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`IPR2020-01267
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`expressly for use in the menu that nobody would have realized that you
`could put the images in the third layer. But that, like whoa. And that strikes
`me as completely not the way obviousness is supposed to work.
`JUDGE ARBES: Counsel, do you agree with Patent Owner's view
`that there is a difference in Gonder in that it is using more of a two layer or
`two part approach where it has a single video segment and it is
`superimposing on that certain information? And that's different from the
`claims here, which explicitly require a first, second, and third layer?
`MR. ROBERTS: No, Your Honor.
`JUDGE ARBES: Are you taking --
`MR. ROBERTS: I do not.
`JUDGE ARBES: -- too, okay. Are you taking too broad of a view
`that if I find a video segment that has different things on the screen I can
`pick and choose what I want in order to differentiate between a first and
`third layer?
`MR. ROBERTS: No. Let's just take Figure 7 and let's take their,
`what I think improper and narrow reading of Figure 7.
`What they would look at Figure 7 and they would say, everything in
`152 and what we call the background and 154, all that is background. So
`they say all that's background.
`But they admit that boxes 156 and 158 are reserved areas. So that's
`the second area. And then they admit that Episode 1, Episode 2 and Episode
`3, and the description of Episode 1 are contents that goes in that.
`So even under their reading of Figure 7 there are three layers.
`Background, reserved areas and content in there. Their only argument is
`
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`IPR2020-01267
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`
`that the third layer content doesn't have the right things in it because the
`images are in the background layer, not in the third layer.
`So they don't even disagree, and I would invite you to ask them, that
`Figure 7 has three layers. They're just saying that the images are in the
`wrong place.
`JUDGE ARBES: But Counsel, and you're into your rebuttal time
`now, but I believe you argued in the petition that it wasn't the yellow and
`blue screens that were the background in Figure 7 but it was the blank part
`below that that you had colored in red. I thought that was Petitioner's theory
`for Figure 7?
`MR. ROBERTS: So that was our theory for Figure 7. You asked
`me to respond under their theory. So I'm saying, even under their theory
`there are three layers. Under our theory, you're correct, there are also three
`layers, and we identify them slightly differently.
`But there is no dispute that Figure 7 shows three layers it's just,
`which components do you put in which of the layers. And on that last point,
`and I don't want to take up all my rebuttal time, but if I could draw the
`Board's attention to Slide 51.
`When Gonder talks about Figure 7 it talks about video sections 152
`and 154. 152, the bracket there, is not the entire length of the screen. The
`bracket for the video, in Figure 7, is just half the screen. And what they're
`saying is, no, no, no, that's wrong, the entire screen is video.
`And why would you call out video in Sections 152 and 154 when
`connection with Figure 7, if really you're saying it's a background.
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