Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper # 36
`Entered: July 14, 2020
`
`
`
`RECORD OF ORAL HEARING
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`SNAP, INC.,
`Petitioner
`
`v.
`
`BLACKBERRY LIMITED,
`Patent Owner.
`
`__________
`
`IPR2019-00714 (Patent 8,825,084 B2)
`IPR2019-00715 (Patent 8,326,327 B2)
`
`__________
`
`Oral Hearing Held: June 9, 2020
`__________
`
`
`Before MICHAEL R. ZECHER, MIRIAM L. QUINN, and AARON W.
`MOORE, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`

`

`IPR2019-00714 (Patent 8,825,084 B2)
`IPR2019-00715 (Patent 8,326,327 B2)
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DAVID OKANO, ESQ.
`YAR CHAIKOVSKY, ESQ.
`of: Paul Hastings LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`(650) 320-1855 Okano
`(650) 320-1832 Chaikovsky
`davidokano@paulhastings.com
`yarchaikovsky@paulhastings.com
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`NICHOLAS STEPHENS, ESQ.
`MICHAEL T. HAWKINS, ESQ.
`of: Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`(612) 766-2018 Stephens
`(612) 337-2569 Hawkins
`nstephens@fr.com
`hawkins@fr.com
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday,
`
`June 9, 2020, commencing at 11:00 a.m. EDT, via Videoconference.
`
`
`
`
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`
`
`

`

`IPR2019-00714 (Patent 8,825,084 B2)
`IPR2019-00715 (Patent 8,326,327 B2)
`
`
`
`
`P-R-O-C-E-E-D-I-N-G-S
`
`11:03 a.m.
`JUDGE QUINN: Welcome, everybody, this is a hearing on Snap
`Inc. v. Blackberry Limited on IPR2019-00714 and IPR2019-00715. These
`two cases address Patent Numbers 8,825,084 and 8,326,327.
`Presiding here in this hearing are Judges Michael Zecher, Aaron
`Moore, and yours truly, Miriam Quinn. We have set aside 45 minutes of
`total time to present in this proceeding by each party and I'd like to know
`who is presenting and present for Petitioner?
`MR. OKANO: For Petitioner Snap it's David Okano at Paul
`Hastings LLP. With me is Petitioner's Lead Counsel Yar Chaikovsky.
`JUDGE QUINN: Thank you, and who do we have for Patent
`Owner?
`MR. STEPHENS: This is Nicholas Stephens for Patent Owner
`Blackberry Limited. I'm here with Lead Counsel Michael Hawkins.
`JUDGE QUINN: Thank you. All right, my understanding is that
`this hearing is open to the public and there is a phone line open. Do we
`have any confidential information that will be presented here today?
`Petitioner?
`MR. OKANO: No, there will be no confidential information
`presented today by Petitioner Snap.
`JUDGE QUINN: Thank you, I just wanted to confirm that. And
`Patent Owner?
`MR. STEPHENS: No confidential information from Patent Owner
`Blackberry.
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`JUDGE QUINN: Okay, thank you so much. All right, before we
`start the presentation of the parties, we understand there is an objection to
`one of Petitioner's demonstrative slides.
`My first question to Petitioner—I would like to get this handled
`before we begin—is I believe Slide 21 of your demonstrative. Are you
`planning on discussing the slide in your presentation today?
`MR. OKANO: Is that the one that is objected to? I believe the
`objection was to Slide 38.
`JUDGE QUINN: Slide 38, okay.
`MR. OKANO: Yes, Petitioner was planning on discussing at least
`the content of Slide 38.
`JUDGE QUINN: Okay, so my question to you is, based on what
`we have seen in the objections, where is that information presented in the
`briefs?
`
`MR. OKANO: So, these cases are not expressly cited in our brief,
`however, this issue goes to the issue of whether the Patent Owner has met its
`obligation under 316(b) to demonstrate written descriptions and support.
`So, they have the burden, unlike for other issues, and they cited some
`new cases, Federal Circuit cases, in their sur-reply, or I guess their reply
`after the Board's preliminary guidance. And these cases, we believe, are in
`part responsive to that final paper that was filed about a week ago.
`JUDGE QUINN: Okay, but demonstratives are not evidence.
`Excuse me, demonstratives are neither evidence nor briefs, so the rule is that
`if it's not in the record as part of your briefing, you cannot discuss that
`during oral arguments, notwithstanding what you're saying.
`So, there's got to be a different way for you to introduce this than a
`slide in your demonstratives.
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`IPR2019-00714 (Patent 8,825,084 B2)
`IPR2019-00715 (Patent 8,326,327 B2)
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`MR. OKANO: My understanding is that Petitioner can certainly
`discuss the cases. Perhaps the slide itself will not be presented and it does
`not necessarily need to be placed into evidence. But Petitioner is not
`aware of authority that would prohibit the discussion of these cases,
`especially since Petitioner does not consider them evidence. They're just
`other Board written decisions that exist as a legal citation in essence.
`JUDGE QUINN: Okay, did either of these cases arise after your
`briefing completed?
`MR. OKANO: They came out very shortly before our briefing was
`completed, like within a week.
`JUDGE QUINN: Patent Owner, do you want to add anything to
`this discussion?
`MR. STEPHENS: We have nothing to add beyond what was stated
`in our objection.
`JUDGE QUINN: I think at this point what we're going to rule is
`that we are going to sustain the objection and so I'm instructing Counsel for
`Petitioner to not address this slide during your presentation. Is that
`understood, Mr. Okano?
`MR. OKANO: Understood.
`JUDGE QUINN: Okay, thank you.
`MR. OKANO: Your Honor, if I may, can I ask one question of
`clarification?
`JUDGE QUINN: Yes.
`MR. OKANO: Is your ruling also that Petitioner may not mention
`the cases that are on the slide, or just reference the slide itself?
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`IPR2019-00714 (Patent 8,825,084 B2)
`IPR2019-00715 (Patent 8,326,327 B2)
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`JUDGE QUINN: Obviously, if you cannot talk about Slide 38, you
`cannot discuss the subject matter disclosed in Slide 38 because it is not in
`the briefs, it's not in the record.
`MR. OKANO: Understood.
`JUDGE QUINN: All right, so as far as keeping time for this
`proceeding, I'm going to be keeping time here with a timer, I have it here.
`I'm starting with the 45 minutes but we'll be able to give you some indication
`as far as your rebuttal time, if you'd like that.
`How much would you like reserve for rebuttal?
`MR. OKANO: Petitioner would like to reserve ten minutes for
`rebuttal.
`JUDGE QUINN: Okay, and just let me know when you're ready so
`I can start the timer.
`MR. OKANO: Petitioner is ready.
`JUDGE QUINN: All right, you may proceed.
`MR. OKANO: Your Honors, during this part of the hearing,
`Petitioner will highlight how the record developed during trial in both the
`714 and 715 IPRs demonstrate that all challenged claims of the 084 and the
`327 patents are unpatentable as obvious.
`Petitioner will emphasize why the Board's initial determinations on
`institution in both the 714 and the 715 IPRs with respect to the grounds
`based on Lemmela and Crowley are correct, and how Patent Owner
`Blackberry's challenges to the Board's initial determinations on these
`grounds are inconsistent with the claims in the specification.
`Petitioner will also explain how the Board may not have fully
`appreciated some of the express teachings in the Winkler reference. Once
`Winkler's teachings are fully appreciated, it is clear that the challenged
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`IPR2019-00714 (Patent 8,825,084 B2)
`IPR2019-00715 (Patent 8,326,327 B2)
`
`claims are also unpatentable in view of the grounds based on the Winkler
`and Altman references in both the 714 and 715 IPRs. And then
`Petitioner will address the Board's preliminary guidance on Blackberry's
`motion to amend. As the Board emphasized, its preliminary guidance is
`not binding and the views expressed are subject to change upon
`consideration of the complete record.
`Now that a more complete record in this IPR has been made,
`Petitioner will demonstrate how the proposed substitute Claim 21 is obvious
`under a full KSR analysis how Blackberry has not met its statutory burden to
`show the claim is supported by the 327 patent's original disclosure, and how
`Claim 21 is invalid as patent ineligible under Section 101. Of course,
`Petitioner will respond to any questions the Board may have and as I
`indicated earlier, we request ten minutes for rebuttal time.
`Turning first to Slide 4, this slide is going to show Claim 1 in both
`the 327 and the 084 patents. And I'm going to start first with the Lemmela
`grounds. The Board's initial determination on institution is correct and
`should not be disturbed.
`In particular, based on the record developed during trial, Blackberry
`seeks to disrupt the Board's determination by attempting to import a
`requirement that whether something is an action spot requires an unrecited
`determination that the event must be presently occurring.
`This limitation is not recited by the claims, not found in the
`specification, and inconsistent with the District Court's interpretation of the
`claim.
`JUDGE QUINN: Well, let me ask you something about that
`because there's a lot of dispute as to the construction of that term. I
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`IPR2019-00714 (Patent 8,825,084 B2)
`IPR2019-00715 (Patent 8,326,327 B2)
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`understand now from Patent Owner's arguments that there is some
`distinction here between the input and the output of the determination.
`And as I understand it, the input may be that both things, the actual
`postings of the events or the locations, that must be as the event or instance
`is occurring. And the output is the determination itself. Do you have any
`further explanation as to that distinction and how we can reconcile that view
`with our preliminary determination about that term?
`MR. OKANO: Well, to begin, again, the reason I want to focus on
`Slide 4 in the claims is that the claims themselves provide what the input is
`and what the output is. The output is a determination of an action spot.
`The input is where at least one action spot corresponds to a location
`where at least one other mobile device has engaged in documenting action
`within a predetermined period of time. That is the 327 patent. The 084
`patent, of course, only requires that the action spot correspond to a location
`where at least one second mobile device has engaged in at least one
`documenting action.
`So, the input is the system monitors and determines that at least one
`mobile device, other mobile device, has engaged in at least one documenting
`action. And based on that input, the output is a determination of an action
`spot.
`What Patent Owner tries to do is to introduce an additional layer to
`say, well, beyond what the claims actually require, which is just has there
`been mobile device activity by one mobile device in at least one location,
`they seek to introduce a second unrecited component, which is, is it
`presently occurring?
`But what the specification and what the claims say what is occurring
`means is a mobile device has engaged in activity in the past in that location,
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`IPR2019-00714 (Patent 8,825,084 B2)
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`again, in the 327 patent, within a predetermined duration of time. Within
`the 084 patent, at least in the independent claim, just at any point, time is not
`even a limitation.
`JUDGE QUINN: What concerns me here somewhat is that
`Petitioner agreed to the construction in District Court that defines the term as
`if occurring. And are you aware of any interpretation of the term by the
`District Court not in the context of a motion for summary judgment, but an
`actual Markman analysis?
`MR. OKANO: So, respectfully, the interpretation of the claims
`during the District Court was an ongoing process. First, there's a stage of
`the motion to dismiss and then there's the Markman order, and then there's a
`summary judgment order.
`Truthfully, what is being reviewed at the Federal Circuit on appeal
`right now is not the Markman order. It is the District Court's interpretation
`of the claims at the summary judgment order. And to the extent that the
`Patent Owner is focusing on the Markman order, it's because their expert
`didn't even look at the summary judgment order before he gave his
`testimony.
`They have a fundamentally flawed understanding and interpretation
`of how claims are interpreted in District Court litigation and reviewed by the
`Federal Circuit. There's that whole body of law, such as 02 Micro, where
`claims must be determined by the District Court.
`The Supreme Court case Markman v. Westview does not require a
`hearing, it requires the District Court to interpret the claims. And in a
`number, I would say a substantial number of decisions at the Federal Circuit,
`it is often the case that the claim constructions being reviewed are the claim
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`IPR2019-00714 (Patent 8,825,084 B2)
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`constructions made either expressly or implicitly by the District Court
`during summary judgment, not during Markman.
`Of course, the Markman hearing is a time where claim construction
`is the focus, but the claims are being construed in all sorts of different
`documents. And here, the summary judgment order builds on, and the
`District Court provides further interpretation of the claims in view of the
`actual disputes by the parties with respect to those terms.
`And so respectfully, Patent Owner's expert did not even look at this
`summary judgment order, but this is the operative claim construction
`document that is being analyzed and reviewed on appeal currently.
`JUDGE ZECHER: Counsel, can I follow up on what Judge Quinn
`asked?
`We're familiar with both the Markman order and the summary
`judgment order, we've taken a look at the relevant portions of that. I'm just
`curious, from what I can tell, you agreed to this term in the District Court
`and that's why it's identified in the section of agreed claim terms.
`One, why is that? Because now we seem to be disputing the
`meaning of that term, right? I got the sense at least from reading your
`briefs that maybe the District Court limited you to the number of terms you
`could actually dispute, and for whatever reason you didn't want to focus
`your fight on this term, which is now where the fight actually is.
`So, if you can add some clarity to that I would appreciate it.
`MR. OKANO: Certainly. So, the District Court case involved
`total among not just Petitioner Snap but a third party in this proceeding,
`Facebook. And so there was, I believe, nine or ten patents asserted across
`the parties and the District Court limited the parties to ten terms total.
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`IPR2019-00715 (Patent 8,326,327 B2)
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`So, the parties had to focus their, and negotiate with Blackberry and
`among themselves, truthfully, to arrive at the most important terms. And
`secondly, I'd add that, as pointed out in Snap's briefing, Snap still agrees and
`continues to agree about the term, action spot. As Snap highlighted in its
`briefing, this term does not appear in a vacuum. It is part of the limitation.
`And as shown in Figure 4, it's part of the limitation, determine at
`least one action spot. And so the action spot, I think some of the confusion
`is that the specification says is occurring. But what the specification and
`the claims describe what is occurring means is, as defined in the claims, a
`location where at least one other mobile device has engaged in documenting
`actions.
`That's what is occurring means in the specification and under the
`claims.
`JUDGE ZECHER: But you would agree that the specification's got
`an explicit definition of action spot, correct?
`MR. OKANO: I would agree that --
`JUDGE ZECHER: It provides a lexicographic definition of action
`spot, correct?
`MR. OKANO: I would not go so far as to say lexicographic
`definition. I would say it provides clarity, and Snap certainly does not
`dispute that that is the construction of action spot.
`JUDGE ZECHER: But what I'm trying to get at is, you can have a
`lexicographic definition in the specification but it needs to be used
`consistently throughout the specification.
`So, here it does seem that they did take the requisite words to
`actually define the term itself, I can't remember the exact column, I need to
`look up the document, but I believe it's Column 3 in the ’084 patent.
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`MR. OKANO: Column 3, Lines 3 to 5 in the 084 patent I believe.
`JUDGE ZECHER: Right, and it spells it out, the term action spot
`refers to a location or an event where at least one activity -- and now here's
`the key term – “is occurring” relative to the current location of another
`mobile device.
`But then taking that definition, we also have to look at it in the
`context of the claim, correct, as well as other portions of the specification
`where, as you're suggesting, seemed to kind of further explain what is
`occurring would mean, whether or not that would occur in the past or be
`current in the present.
`But you would agree that's a lexicographic definition, right? Most
`specifications don't call out a claim term and say refer to or is this, and that
`tends to be how we -- we see it as explicit definition.
`MR. OKANO: That's correct, I agree with that in terms of,
`certainly, there's been no express finding on this but in terms of the usage in
`the specification, I would agree that that strongly, if not definitively,
`suggests a lexicographical definition.
`JUDGE ZECHER: Okay, so then the key going forward is, now,
`how is that term used? Is it consistently talking about the present tense
`throughout the spec in the claim? Or is it also talking about the past tense?
`And I think that's where you're getting into looking at other portions
`of the specification. Is that correct?
`MR. OKANO: That is correct, because again, while the term action
`spot -- and again, Snap has no reason to dispute that it's lexicographical.
`But the actual definition, the lexicographical definition, is further explained
`and expanded on, and even further defined in the claims and, in particular,
`the part of that definition that is the "is occurring."
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`And again, as I said earlier, the “is occurring” is shown to be in the
`claims where activity has occurred in the past, i.e., where at least one mobile
`device has engaged in documenting an action.
`And going to our Slide 6, that is also consistent with the portions in
`the specification which continually and repeatedly refer to the determination
`of an action spot, i.e. the determination of activity that is occurring based on
`the monitoring of activity that happened in the past.
`And importantly, you have repeated identification of this activity that
`occurred in the past and you have nothing in the specification that says an
`action spot must actually be occurring contemporaneously. There's nothing
`in the specification that says an action spot is actually not an action spot if it
`is not actually in reality temporarily occurring.
`Instead, you have repeated instances of saying this is an action spot,
`this is what is occurring, and it's based on past activity. And if I may, I'm
`happy to provide further explanation of some of these. Some of the most,
`I would say, interesting ones are looking at the column on Slide 6 on the left,
`the second excerpt, and here I think the patent misspoke and they called it
`the activity spot but it's the action spot. And again, this is a pretty express
`statement, again totally consistent with what Snap does not dispute to be a
`lexicographical statement.
`It says the action spot -- the activity spot but it's an action spot -- can
`include a location relative to the current location of the mobile device where
`at least one other mobile device has engaged in documenting action. So,
`that's a pretty express statement. This is the portion of the specification
`right above it, again: the action spot can be determined -- can be.
`Again, this is expressing inclusivity, not exclusivity. So, certainly,
`Snap would not dispute that an action spot can encompass activity that is
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`IPR2019-00714 (Patent 8,825,084 B2)
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`actually occurring. Snap does not dispute that, but it does dispute that it is
`limited to that.
`Again, the first excerpt here, Column 3:66 or I guess Column 4:611
`in the 084 patent: action spot can be determined at a location where at least
`one other mobile device has engaged in documenting action. And the other
`portions of the spec are all consistent with this. The action spot and the
`meaning of the “is occurring” in the lexicographical definition is based on
`where activity has occurred in the past. That's how the determination
`occurs. Snap doesn't necessarily dispute there's an input and an output, but
`what Snap --
`JUDGE QUINN: We're having an issue with the video freezing, so
`can we get some support for that?
`MR. OKANO: From...? Is there anything for Petitioner?
`JUDGE QUINN: No, sorry, Mr. Okano, you were freezing, your
`video was freezing, so we couldn't hear some of what you just said.
`MR. OKANO: I will repeat, which is, Snap does not dispute that in
`one sense, again, nowhere in the specification is an input and output
`algorithm described. But what the input is is listed or recited directly in the
`claims, which is at least one -- activity has occurred at a location in the past.
`JUDGE QUINN: Let me summarize. I think what I'm hearing is
`that you could definitely have a situation where a mobile user arrives at a
`location and other mobile users are concurrently posting information about
`that location at the same time the user is present in that location, right?
`MR. OKANO: Yes.
`JUDGE QUINN: But you also have the situation, I think, that the
`description supports that a user arrives at a location where users documented
`their presence there previously and that information is also available to the
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`user, not necessarily something that is occurring right then and there, but it
`did occur at some point.
`MR. OKANO: That's correct.
`JUDGE QUINN: And so it seems like the timing of the “is
`occurring” for the action spot refers more to the activity of those who are
`posting at the location rather than what happens when the user arrives at that
`location.
`What they're viewing may have occurred in the past or may be
`currently occurring but in all situations the posting activity occurred at the
`time the users were posting at that location. Is that a way to reconcile that?
`MR. OKANO: If I may, just to make sure I'm understanding your
`description, you're saying that in one sense “is occurring” could refer to
`when the posters, upon which the determination of an action spot is based,
`posted.
`So, at the time the other mobile devices were engaging in
`documenting activity, it was “is occurring activity” at that time. But now,
`when the target, the primary mobile device user, arrives at the current
`location, the activity that is being monitored that at one point was “is
`occurring now” may have occurred in the past.
`JUDGE QUINN: Correct.
`MR. OKANO: Yes, Snap agrees that is another way to reconcile --
`or I would not say reconcile, to interpret the specification in view of the
`claims.
`JUDGE QUINN: Okay, thank you.
`MR. OKANO: I would like to move next just briefly to Lemmela
`and certainly, if there are any questions I'm happy to answer if the Board has
`any questions. I just want to highlight how Petitioner in the petition noted
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`IPR2019-00714 (Patent 8,825,084 B2)
`IPR2019-00715 (Patent 8,326,327 B2)
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`that Lemmela actually discloses action spots both currently and in the past
`under both parties' proposed constructions. It doesn't matter.
`And in particular, I would like to look at Paragraphs 37 and 39 of
`Lemmela. So, Paragraph 37 talks about Lemmela and it says, and I'm
`quoting, “user can freely select a starting and ending time defining a time
`period.” I note the term “freely select,” it doesn't say the user cannot select
`what is currently occurring.
`The term “freely select” suggests and teaches that the time period is
`open, it's full of possibilities. And when you go down to Page 39, again it
`reinforces the user can freely select starting times and ending times defining
`the interesting time period, again emphasizing that the display and the
`monitoring of postings on which Lemmela determines its word clouds can
`be based on any time.
`And at the end of Paragraph 39 I think the key sentence that we
`identified in our petition for sure is: “The display of postings may be
`continuously updated based on the selected time period: if the posting is
`sent during selected a time period, it is taken account in the display.”
`And some of that language is a little bit rough, but the point is,
`there's no reason to even have this sentence unless it is including activity, the
`monitoring of activity, that is occurring in the present. The “continuously
`updated,” there's no reason to continuously update if you're only looking at
`things that have already occurred in the past. And then if the posting is
`sent during a selected time period, it is taken into account.
`And so again, there's no reason to have this sentence if it is only
`looking at past activity because presumably, if it was only looking at past
`activity, the postings would already be included. There would be no need
`to continuously update, there would be no need to teach the user that if
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`IPR2019-00714 (Patent 8,825,084 B2)
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`something is sent during a freely selected period, that it will be included in
`the determination.
`JUDGE QUINN: Let me ask you about that. So, if Lemmela's
`users that are posting are transmitting their posts as they are present in that
`location, they are then arguably documenting. The documenting activity
`fits under that activity that is occurring because that timing, as we've
`discussed earlier, refers more to the posters.
`As they are posting, the postings are being uploaded to the system,
`and then with the slider on Figure 5, then you can pre-select the timing that
`the user who is interested in that activity, then you can select from there the
`time that those posts were uploaded in the system, but at the time they were
`posted they were occurring.
`So, another thing I want to ponder with you is, if you want to
`comment on that, is that Figure 5, it seems to me that the slider on the screen
`in the bottom shows the end of the timeline at, you know, very early in 2007,
`which leads me to believe that the slider could have gone all the way down
`to the present time, which you know this patent was filed in April of 2007.
`So, it seems like if you're filing a screenshot of a contemporaneous
`feature that if you put the slider all the way down, you would have been in
`the present time.
`What do you say about those two things that I have explained?
`MR. OKANO: Petitioner Snap agrees. There's further evidence
`attached to Dr. Bhattacharjee's declaration about the Nokia 770 itself, which
`is depicted in Figure 5, that supports that's how it worked in actuality.
`That's what Petitioner wanted to highlight about Lemmela. If there
`are no further questions by the Board, Petitioner would like to move on to
`the motion to amend, and in particular the --
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`JUDGE ZECHER: Can you highlight one more question for me, or
`touch on one more question for me about Lemmela? I know Patent Owner
`presents some arguments that Lemmela doesn't account for the activity level
`in the claim.
`I believe you guys cited at least in part to Paragraph 28, which talks
`about density of location postings. And they make this argument about the
`salient words that are in the posting and associating that with whether or not
`that is talking about the actual activity level.
`Can you please hit on that briefly?
`MR. OKANO: So, again, Patent Owner is trying to introduce a
`new requirement and I believe one which can be stated as they're trying to
`say that the activity level must be some relation to the total number of posts
`at the point.
`Again, if you look at the claims, Claim 4, and as the District Court
`found, by the way, in the summary judgment order, no precision is required.
`In the Markman, this is what Blackberry urged against. Snap wanted the
`activity level to be based on a number and Blackberry said no, it just needs
`to be a level, it needs to be something that represents the activity. No
`number, just a level.
`And again, the density of postings, that is, as our expert testified, that
`refers to the number and a location. So, Lemmela actually does measure a
`number of postings at a location, but that's not required by the claims.
`And moreover, this is emphasized, I believe, if you look at Claim 6
`of the 084 patent, which is a dependent claim and it recites the indication
`comprises one or more graphical documenting actions. So, certainly the
`independent claim does not have any relative requirement and the dependent
`claim only has a relative, meaning it doesn't have to be the relative post total.
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`It just means there has to be a relative comparison between two spots
`of some sort, of some kind. There's no requirement that I believe
`Blackberry is trying to introduce or inject into the claims that each action
`spot must somehow measure a relative activity level against the total number
`of posts or documenting actions that have been monitored.
`That is not a requirement in any claims. It says a level and it
`provides no other specificity.
`JUDGE ZECHER: Okay, thank you.
`MR. OKANO: Okay, moving on to the obviousness.
`So, I guess what Petitioner wants to emphasize is that, first of all, we
`believe that the Board identification at Page 10 of its preliminary guidance
`that all the cited references, and we're talking about Lemmela-Crowley with
`Eyal, Lemmela-Crowley with Jaffe, Winkler-Altman with Eyal, Winkler-
`Altman with Jaffe, disclose and show that of the limitations of all the
`substitute claims, 21 were known.
`JUDGE QUINN: I want to stop you there because those are
`disputed so to the extent that we now have a full record and the preliminary
`guidance is nonbinding, whatever we said there was to give you notice of
`how we saw the case at that point in time. Things may have changed since
`we've seen the full record.
`So, to the extent that you