[00:00:00] Speaker 03:
The next case for argument is 23-2040, Sonos versus Google.

[00:00:58] Speaker 01:
Good morning.

[00:00:59] Speaker 01:
Please proceed.

[00:01:00] Speaker 01:
Good morning, Your Honors, and may it please the court, Eric Chomsky representing Sonos.

[00:01:05] Speaker 01:
Your Honors, this IPR was plagued by hindsight bias.

[00:01:09] Speaker 01:
Google banded together discrete portions of two fundamentally different references

[00:01:16] Speaker 01:
to mimic Sonos' patent for a home audio system.

[00:01:19] Speaker 01:
But neither the board nor Google's expert addressed the critical technological differences between Qureshi and AllShake, the fact that they were directed to different problems, and as a result, sought to solve them in critically different ways.

[00:01:34] Speaker 01:
Now, I think those sort of threshold issues are laid out very clearly in the briefing.

[00:01:39] Speaker 01:
I'd like to jump directly to how the use of Qureshi's IPAN server to satisfy claim one illustrates this hindsight bias.

[00:01:51] Speaker 01:
Parenthetically, I do want to make sure this morning to get to the even greater disconnect reflected in Google's theory about claim nine's messaging scheme.

[00:02:01] Speaker 01:
But let me start with claim one.

[00:02:05] Speaker 01:
Google plucked the remote IPAN server out of Qureshi's antiquated system and inserted it into AllShake's more modern architecture, which is built around a home network.

[00:02:17] Speaker 01:
Now, BIMS, Google's expert, said that AllShake teaches directly retrieving remote content

[00:02:25] Speaker 01:
from a remote server for playback and that a skilled artisan would look to Qureshi for details about how to do so.

[00:02:32] Speaker 01:
And that's wrong for two different but each fundamentally important reasons.

[00:02:39] Speaker 01:
First, All Shake does not, in fact, disclose directly retrieving remote content.

[00:02:46] Speaker 01:
When you look at the critical passages of All Shake, and those are paragraphs 94 to 96, there simply is no disclosure of that.

[00:02:55] Speaker 01:
Each of the examples in 94 to 96 are about content that is on the mobile device, flowing through the mobile device, or in one other example, in a media server that is on the same home network.

[00:03:10] Speaker 01:
So the critical predicate, the critical premise of BIMS' assertion on this is just wrong.

[00:03:19] Speaker 01:
The second set of reasons

[00:03:21] Speaker 01:
go to BIMS' explanation for why, if you accepted the premise that AllShake is doing this direct downloading, why you would want to modify AllShake with Qureshi.

[00:03:35] Speaker 01:
And what BIMS says is you would be motivated to improve the user experience by saving resource locators on the playback device.

[00:03:45] Speaker 01:
And the reason you would want to do that is you want to minimize interruptions if the mobile device failed.

[00:03:51] Speaker 01:
So this is really all about just the question of these resource locators and having them on the playback device.

[00:04:00] Speaker 01:
There is a critical difference here, and this looks very much like this court's decision in TQ Delta, where there's a real gap here.

[00:04:10] Speaker 01:
There is a gap between the what and the how.

[00:04:13] Speaker 01:
The what is the resource locators.

[00:04:15] Speaker 01:
And again, if you're accepting the premise that one would modify, I'll shake in this way, you have the resource locators there.

[00:04:22] Speaker 01:
But that is a totally separate question.

[00:04:25] Speaker 01:
from how you get them there.

[00:04:28] Speaker 01:
Put a slightly different way.

[00:04:29] Speaker 01:
If the goal is to get resource locators delivered to the playback device, it doesn't matter if you're doing that using the IPAN server or if you're doing it using the mobile device itself.

[00:04:42] Speaker 01:
And BIMS doesn't even begin to fill that gap.

[00:04:47] Speaker 01:
BIMS doesn't explain why you would take the IPAN server

[00:04:52] Speaker 01:
and plug it into AllShake.

[00:04:55] Speaker 01:
Remember that in AllShake, everything is done over a home network.

[00:05:00] Speaker 01:
The whole idea of AllShake is that you're using the invention to transfer content from a mobile device to a home network.

[00:05:10] Speaker 01:
And you see this if you look at figure one of AllShake, which is reproduced in our opening brief.

[00:05:17] Speaker 01:
at page 23, everything is centered around that kind of direct transmittal from the mobile device over the home network.

[00:05:27] Speaker 01:
In fact, that's actually the title of AllShake.

[00:05:31] Speaker 01:
The whole idea is that kind of transfer from the mobile device to the home network.

[00:05:37] Speaker 02:
The IPAN server... What about, I mean, the problem that you have with your

[00:05:43] Speaker 02:
case is your standard of review, right?

[00:05:46] Speaker 02:
I mean, every issue you've raised is a factual question, right?

[00:05:52] Speaker 02:
So the question is whether there is substantial evidence to support the board's findings.

[00:05:57] Speaker 02:
And there's a lot of things they said, like including that L-shaped and correct sheet are in the same field of endeavor.

[00:06:03] Speaker 02:
They deal with similar devices.

[00:06:05] Speaker 02:
They're directed to the same problems.

[00:06:08] Speaker 02:
And how do you deal with all of that?

[00:06:11] Speaker 02:
They don't seem far afield to me.

[00:06:14] Speaker 02:
Nobody's arguing that they're not analogous to the claimed invention.

[00:06:19] Speaker 02:
I mean, not that I think they should.

[00:06:20] Speaker 02:
But I'm struggling with your arguments because of that.

[00:06:25] Speaker 02:
Maybe if I were a fact finder, I might look at some of the things that you're saying and say, oh, that makes some sense.

[00:06:30] Speaker 02:
But I'm not sure that I can say that what the board found here

[00:06:35] Speaker 02:
And based on the references themselves, the technology at issue, and the expert testimony, I'm having a hard time saying it's unreasonable.

[00:06:45] Speaker 01:
Sure.

[00:06:45] Speaker 01:
Judge Stolz, let me try and answer that in two separate ways.

[00:06:49] Speaker 01:
And let me try and disaggregate the threshold set of questions, which I set aside in my opening about the different problems and different solutions.

[00:06:59] Speaker 01:
And let me disaggregate that from the question about the

[00:07:02] Speaker 01:
how the IPAM server works or the direct downloading from a remote device.

[00:07:09] Speaker 01:
As to the first set of those, there is just a huge gap in the record here in the following sense.

[00:07:16] Speaker 01:
This court has said over and over cases like DSS and TQ Delta, it's fine to assert that there are similarities

[00:07:25] Speaker 01:
But the board also has to consider the differences.

[00:07:29] Speaker 01:
And the board just doesn't do any business whatsoever with the differences.

[00:07:32] Speaker 01:
And BIMS doesn't either.

[00:07:34] Speaker 01:
If you look at the critical paragraph from BIMS, which is paragraph 72, that the board relies on, he doesn't deal with those differences at all.

[00:07:44] Speaker 01:
So that is, Judge Stoll, one way in which there is a complete lack of substantial evidence.

[00:07:51] Speaker 03:
But the differences are readily apparent.

[00:07:56] Speaker 03:
I mean, obviously, these two references

[00:08:02] Speaker 03:
disclose different systems that work differently with some common objectives.

[00:08:08] Speaker 03:
But the point, I think, here is that the board concluded that the references basically show recognized common elements that would have been obvious to put together because they would yield predictable results.

[00:08:26] Speaker 03:
It's the same kind of teaching that comes from KSR.

[00:08:31] Speaker 03:
And why is that wrong?

[00:08:35] Speaker 01:
So I think that the, and again, this goes back to cases like DSS and TQ Delta, the board has to actually address those differences.

[00:08:46] Speaker 01:
I mean, that is what this court has said over and over, is the essence of reason decision making.

[00:08:52] Speaker 02:
But I don't want to- How do you think TQ Delta says that?

[00:08:54] Speaker 02:
I mean, in TQ Delta, the problem there was that even combined, all the limitations weren't met.

[00:09:00] Speaker 02:
And here I don't hear you saying that the back end, when you take the front end of one system and the back end of another, limitations aren't being met.

[00:09:12] Speaker 01:
So not as to claim one, but let me, I don't want to die on this hill.

[00:09:18] Speaker 01:
I do want to focus on the direct downloading point.

[00:09:21] Speaker 01:
Because even if you accept that these are analogous art, that Judge Lynn, to your point, there is some obvious similarity, you still have this complete lack of substantial evidence about direct downloading.

[00:09:33] Speaker 01:
And I freely acknowledge the standard of review is tough.

[00:09:36] Speaker 01:
It always is when you're challenging a board decision.

[00:09:39] Speaker 01:
But the critical premise for what BIMS was saying here is that all Qureshi directly downloads the line that the board reproduces at 40 to 41 is that AllShake can directly retrieve media content from a remote server for a playback.

[00:09:57] Speaker 01:
And that is absolutely missing from AllShake.

[00:10:01] Speaker 01:
If you look at paragraphs 94 to 96, and BIMS doesn't add anything to those paragraphs,

[00:10:09] Speaker 01:
Bims at at paragraph 128 just just parrots what those paragraphs say Those do not show direct downloading What what I'll shake teaches and again this this relates to the critical?

[00:10:25] Speaker 01:
Architecture of all shake which is that it's built around a modern home network I'll shake talks about content that is on the mobile device and

[00:10:35] Speaker 01:
If you're looking again at figure one on page 23 of the opening brief, you also can have media content.

[00:10:42] Speaker 01:
That's item 15 on the bottom left flowing through the mobile device.

[00:10:47] Speaker 01:
Or, and this is not on the diagram, but it's in paragraph 96 of all shake, you can have a media server.

[00:10:54] Speaker 01:
But that is also on the home network.

[00:10:56] Speaker 01:
There is no disclosure whatsoever.

[00:10:59] Speaker 01:
of directly downloading that kind of mobile device.

[00:11:02] Speaker 01:
And so Judge Stolt, again, accepting the standard of review, accepting the difficulties of substantial evidence review, there is no evidence on that critical premise.

[00:11:14] Speaker 01:
But again, if you go beyond that,

[00:11:17] Speaker 01:
There also is this fundamental gap in what BIMS said, and this I do think is very much like TQ Delta, where the expert didn't explain why you would use the IPAN server.

[00:11:33] Speaker 01:
The expert just says, and this is where I was leaving off,

[00:11:37] Speaker 01:
that you have these resource locators.

[00:11:39] Speaker 01:
And those are the backend architecture, or the backend functionality, to use Google's term, that allows you to directly download from the cloud.

[00:11:49] Speaker 01:
But that tells you nothing whatsoever about how those resource locators get there.

[00:11:53] Speaker 01:
And BIMS offers no explanation of why you would do that using the IPAN server, which is so fundamentally inconsistent with what AllShake teaches.

[00:12:07] Speaker 01:
I do want to make sure to get to claim nine, and I see that I'm already into my rebuttal time.

[00:12:12] Speaker 01:
But on claim nine, the problem is even greater.

[00:12:16] Speaker 01:
Even if you accept the board's findings about claim one, claim nine requires a feature that is totally foreign to both references.

[00:12:28] Speaker 01:
That is sending this message from the mobile device

[00:12:32] Speaker 01:
to a streaming content server that causes a first cloud server to take certain actions.

[00:12:39] Speaker 01:
And BIMS, again, recognizing the standard of review,

[00:12:43] Speaker 01:
Bims doesn't say that.

[00:12:45] Speaker 01:
All he says is that all Shakespeare's mobile device sends a message to the streaming content service.

[00:12:52] Speaker 01:
And this is where we get to this extraordinary admission in Google's red brief at page 53, where they seem to acknowledge

[00:13:04] Speaker 01:
that the proposed combination doesn't actually meet the limitations of the claim.

[00:13:10] Speaker 01:
Judge Stoll, I want to make sure to differentiate between the claim one and claim nine on the point you were raising.

[00:13:17] Speaker 01:
Here, the elements simply are not present.

[00:13:20] Speaker 01:
They acknowledge now that in their proposed combination, the mobile device is sending two separate messages.

[00:13:27] Speaker 01:
one to the first cloud server and another one to the streaming content service.

[00:13:32] Speaker 01:
And they say at the bottom of page 53 that that second message is extraneous.

[00:13:37] Speaker 01:
Now, whether you think about this as an admission or a new claim construction argument on appeal, that is absolutely at war with what claim nine requires.

[00:13:47] Speaker 01:
Claim nine requires a message from the mobile device

[00:13:52] Speaker 01:
to the streaming content server that causes the first cloud service to do something.

[00:13:57] Speaker 02:
So just to be clear, you're saying that it sends two messages or are you saying that there's never a message sent to the streaming content service?

[00:14:08] Speaker 01:
theory on appeal as I understand it, there are two different messages being sent and neither of them satisfy the requirement of claim nine that you have a message to the streaming content service that causes the first cloud server to do something.

[00:14:27] Speaker 01:
It's two separate messages going two separate places.

[00:14:31] Speaker 01:
I do see that I'm well well into my rebuttal time so I would leave it there.

[00:15:11] Speaker 00:
Good morning.

[00:15:12] Speaker 00:
May it please the court?

[00:15:14] Speaker 00:
None of Sonos's arguments change the fact that substantial evidence supports the board's findings.

[00:15:19] Speaker 00:
And all of the issues on appeal, as you noted, are substantial evidence.

[00:15:24] Speaker 00:
I'll go ahead and start with claim nine, since that's where they finished up.

[00:15:27] Speaker 00:
And I'd like to point out, as counsel said, this is a missing element argument that they are making.

[00:15:33] Speaker 00:
And it's from their great brief.

[00:15:35] Speaker 00:
Their problem is that this is the strongest case of many where they have forfeited an argument.

[00:15:41] Speaker 00:
Claim 9 presents the strongest case of forfeiture in the case.

[00:15:45] Speaker 00:
Below, in the record, they argued a missing element argument against Claim 9.

[00:15:50] Speaker 00:
They argued it in their patent owner response, in their patent owner cert reply, and their expert, Dr. Schmidt, testified about it.

[00:15:58] Speaker 00:
Everything was about the lack of the claim element in Al-Shayikh or Al-Shayikh and Qureshi.

[00:16:04] Speaker 00:
They switched tactics in their blue brief.

[00:16:06] Speaker 00:
And their blue brief, the issue they present to this court, and their entire blue brief is a motivation to combine argument about the incompatibility of the technologies and why the board hadn't made the case that it was just for claim nine.

[00:16:19] Speaker 00:
This is for claim nine.

[00:16:21] Speaker 00:
That's right.

[00:16:23] Speaker 00:
That the board hadn't so shown substantial evidence that a skilled artisan could or would combine the references in the way it was proposed.

[00:16:30] Speaker 00:
None of that was raised below.

[00:16:31] Speaker 00:
And that was clearly forfeited.

[00:16:34] Speaker 00:
When Google raised that in our red brief, they tried in their gray brief to switch tactics.

[00:16:40] Speaker 00:
And they presented the argument that's been presented to the court this morning, which counsel said is a missing element argument.

[00:16:46] Speaker 00:
But that argument has been forfeited here at the appellate level, because they didn't carry that into the appeal in the first place from the case below.

[00:16:55] Speaker 02:
You're saying their blue brief only focuses on motivation to combine.

[00:16:59] Speaker 02:
It doesn't have the missing element argument.

[00:17:00] Speaker 00:
That's right.

[00:17:01] Speaker 00:
So they forfeited the motivation to combine argument was all they put in their blue brief.

[00:17:06] Speaker 02:
Do you think you conceded anything as counsel alleges on your red brief at page 53?

[00:17:13] Speaker 02:
Do you have a response to that?

[00:17:15] Speaker 00:
Yes, in case the court finds that it's not forfeited, it was not a stunning concession by Google.

[00:17:25] Speaker 00:
Simply on the substance for claim nine, Google explained that Sonos was misreading the combination for claim nine.

[00:17:35] Speaker 00:
And Google cited to the substantial evidence the board has

[00:17:40] Speaker 00:
both in paragraph 151 and in 101 of Dr. Bim's testimony.

[00:17:46] Speaker 00:
And in particular, we pointed out that claim nine depends from claim one.

[00:17:51] Speaker 00:
And in claim one, Dr. Bim's introduced evidence to explain that when the combine system

[00:18:00] Speaker 00:
to use your phrase, Judge Stoll, the back end IPAN server of Qureshi and the front end interface of Al-Shayikh.

[00:18:08] Speaker 00:
When those are combined, when inputs are received to transfer, which is earlier in claim one, the transferring step in claim one, one of the things, there are several things in claim one that happen when input to transfer is received by the control device.

[00:18:21] Speaker 00:
One of the things that happens in claim one, as Dr. Bims explained and cited to the references in the combination, is that

[00:18:29] Speaker 00:
That input causes the transfer of the playlists from the IPAN server to the playback devices.

[00:18:36] Speaker 00:
That's in the underlying claim one.

[00:18:39] Speaker 00:
And Dr. Bims testified.

[00:18:41] Speaker 00:
And I might just take you right to Bims' declaration at paragraph 151.

[00:18:53] Speaker 00:
And that is appendix 3169.

[00:18:57] Speaker 00:
And this is cited by the board in its findings for claim nine.

[00:19:02] Speaker 00:
So in paragraph 151, at the second half of that paragraph, this is where Dr. Bims was talking about, as explained earlier with respect to claim one.

[00:19:11] Speaker 00:
It's the final sentence on appendix 3169.

[00:19:15] Speaker 00:
As explained earlier, those inputs cause the first cloud servers to add the multimedia content to the local playback queue on the device.

[00:19:25] Speaker 00:
So in the underlying claim one, he says that's what starts everything off, is those user inputs, the command to transfer.

[00:19:31] Speaker 00:
What he says earlier in that paragraph is that those inputs also cause a message to go to the streaming service.

[00:19:40] Speaker 00:
And what he says in particular is in claim nine, in the combination,

[00:19:45] Speaker 00:
The control device uses a service-specific application on the control device of Al-Shait, so that when the transfer command comes in, a message goes from the control device to the service, because it's a service-specific app on the device, and it goes out to the streaming service.

[00:20:03] Speaker 00:
And Sonos does not dispute that that's the case, that that would make sense, and that that's taught by the references, that when there's that service-specific app on the control device, there's a message to the streaming service.

[00:20:14] Speaker 00:
And so paragraph 151 clearly lines up the evidence that the board relied upon here, that it is the user inputs, that command to transfer that comes in that does both of the things that are recited in claim nine.

[00:20:27] Speaker 00:
It causes the IPAN server to send the playlist down to the playback devices, and it sends the message to the streaming service.

[00:20:36] Speaker 03:
Your Honor, obviously, Sonos is arguing with respect to claim one that there's a missing motivation to combine Al-Sheikh and Qureshi.

[00:20:51] Speaker 03:
I really don't like the phrase motivation to combine.

[00:20:54] Speaker 03:
I think it's better analytically to think about this in terms of a reason to combine.

[00:21:01] Speaker 03:
And in all of these obviousness cases, you look to the references that are cited to see what reason may be discerned from those references as to why one of ordinary skill and the art would combine this technology.

[00:21:17] Speaker 03:
And it seemed to me in reading the board's decision that the board put a lot of emphasis on the testimony of Dr. Vims

[00:21:26] Speaker 03:
And as I read through the board's decision, I said to myself, well, this sounds like the board is considering this as if the rejection was outshaking in view of Qureshi and BIMS, as if BIMS was another reference.

[00:21:45] Speaker 03:
I mean, BIMS, you're talking about this is a reason, that's a reason.

[00:21:52] Speaker 03:
But the question is, where is the reasoning in the cited references that would suggest to a person of skill and the art to combine these references?

[00:22:03] Speaker 00:
Sure.

[00:22:05] Speaker 00:
In the references themselves, I think one of the links that BIMS pointed out that the board relied upon was that Al-Shayikh describes in its system, it describes the use of playlists and metadata for the media.

[00:22:22] Speaker 00:
It describes that very briefly and does not give any detail about how that's implemented.

[00:22:27] Speaker 00:
But it does mention that those are used.

[00:22:29] Speaker 00:
And that's in paragraph 87 of Al-Shayikh.

[00:22:33] Speaker 00:
which was cited by Dr. Bims as one of the many similarities between the references, is that Qureshi has great detail about playlists and playlist functionality that's provided by the IPAN server.

[00:22:45] Speaker 00:
And that Al-Shayikh mentions playlists and metadata, which there's no dispute the metadata would be the URLs that are the playlists in Qureshi.

[00:22:54] Speaker 00:
And so that's one of the links that's directly from the reference that

[00:23:00] Speaker 00:
the board said would make sense, and that was in their Appendix 4041.

[00:23:04] Speaker 00:
One of the many reasons that they find a motivation to combine was that Al-Shaheed mentions playlists and metadata, but does not provide details on how that's implemented, particularly when the playlists are not the actual songs.

[00:23:19] Speaker 00:
The playlists are the URLs so that the device can then retrieve the songs from the server.

[00:23:27] Speaker 03:
And I know there was a lot of emphasis on paragraphs 94 and 95.

[00:23:35] Speaker 03:
But those paragraphs don't say a whole lot.

[00:23:39] Speaker 00:
So I think the mistake that Sonos is making is saying that that is the only evidence the board relied upon.

[00:23:45] Speaker 00:
And that is not the only evidence that the board relied upon for the teaching of the rendering devices in Al-Shayikh directly retrieving content from the streaming server.

[00:23:55] Speaker 00:
Yes, paragraph 94 was cited because it says twice that the playback devices may or may not receive their content through the mobile device.

[00:24:06] Speaker 03:
So what else?

[00:24:07] Speaker 00:
So the other paragraphs I'll point you to are paragraph 93, where, and this is, again, Dr. Bims.

[00:24:13] Speaker 00:
He was very helpful, and his testimony is evidence that the board relies upon.

[00:24:18] Speaker 03:
But I'm looking at the reference.

[00:24:20] Speaker 00:
OK, so look at the reference, yes.

[00:24:21] Speaker 00:
So if you want to go with me to paragraph 93 of al-Shayiq,

[00:24:37] Speaker 00:
paragraph 93 about five lines down talks about internet media content which may be rendered and then about middle of the paragraph enabling transfer of the media to the target rendering devices or to the target rendering device among the available rendering devices.

[00:24:56] Speaker 00:
So this is showing that there's internet media and that it can be transferred to the

[00:25:01] Speaker 00:
playback devices.

[00:25:02] Speaker 00:
So that's one step in the process, or one of the pieces that Dr. Bims explained in his paragraphs 126 to 128.

[00:25:10] Speaker 00:
Another I'll point you to is in paragraph 80.

[00:25:13] Speaker 00:
And this goes to the technical differences that Sonos has tried to argue about, many of them for the first time on appeal.

[00:25:19] Speaker 00:
If you go to paragraph 80 of al-Shayikh, it says specifically that that home network

[00:25:27] Speaker 00:
I think Council Persona says, Al-Shaheed, everything has to happen over the home network.

[00:25:32] Speaker 00:
Here in paragraph 80, it says, the home network, the last sentence, may provide a connection to other networks, such as, for example, the internet.

[00:25:40] Speaker 00:
And so it wasn't just that one paragraph that the board relied upon.

[00:25:45] Speaker 00:
In appendix 41, they were looking, yes, at the paragraph that says the content may or may not go through the mobile device to get to the rendering device.

[00:25:52] Speaker 00:
But they were also looking at the rendering device, it says, can receive

[00:25:57] Speaker 00:
internet content, can receive streaming content.

[00:25:59] Speaker 00:
And it has this paragraph that says, the devices are connected to a home network, which is connected to the internet.

[00:26:05] Speaker 00:
So those are the pieces in the reference itself that belie the arguments Sonos is trying to make.

[00:26:14] Speaker 00:
Thank you.

[00:26:15] Speaker 00:
I'd like to point out just a couple of other differences to go back to.

[00:26:22] Speaker 00:
the technical differences.

[00:26:23] Speaker 00:
In addition to those network-based disclosures in Al-Shayikh, I just wanted to make you aware of, from the other direction, trying to say that Qureshi is an archaic outdated by a few years.

[00:26:35] Speaker 00:
Not really.

[00:26:37] Speaker 00:
But that it doesn't disclose any use of a home network.

[00:26:40] Speaker 00:
And that's not the case.

[00:26:42] Speaker 00:
And there were several citations in Qureshi that were relied upon by

[00:26:48] Speaker 00:
or that we cited in our brief, including, let's see, in column two, line 58 of Assistant Koreshi.

[00:27:06] Speaker 00:
Optionally, a local area network can be configured in place of or in addition to

[00:27:11] Speaker 00:
the internet connection to facilitate assignment of playlists and other features.

[00:27:15] Speaker 02:
What appendix page are you on?

[00:27:16] Speaker 00:
I'm sorry, appendix 3350 into 3351.

[00:27:19] Speaker 00:
Is this sentence missing that?

[00:27:22] Speaker 00:
And that's one of many citations about a local area network being either in addition to the internet that's disclosed as the connection in Qureshi or in place of it.

[00:27:34] Speaker 00:
And so the idea that taking Qureshi and that it would have been different networks to combine them with Al-Shait, which has a primary network as a home network, is contradicted.

[00:27:46] Speaker 00:
Another citation is on Appendix 3351.

[00:27:52] Speaker 00:
around about column three, around about line 58.

[00:27:55] Speaker 00:
Again, a local area network can be used to connect to a PC or other network enabled audio devices to allow shared storage across the devices.

[00:28:07] Speaker 00:
So there are others as well.

[00:28:11] Speaker 00:
And this, Judge Lynn, to your point earlier, these are coming from the reference and not Dr. Vims, because these were not raised below.

[00:28:19] Speaker 00:
These types of detailed technical arguments that Sonos has made about the differences in the playback devices or the differences in the networks was not raised to the board.

[00:28:29] Speaker 00:
You'll notice they're not citing any of their own expert testimony, despite saying that these technologies are so very important.

[00:28:35] Speaker 00:
But to the extent that they have raised them here, the references themselves ally their arguments.

[00:28:53] Speaker 00:
If there are no other questions, I'll stop there.

[00:28:56] Speaker 03:
Thank you.

[00:29:15] Speaker 01:
So let me start with claim nine, if I can, and just quickly address the question of forfeiture.

[00:29:21] Speaker 01:
This whole argument always, throughout the board proceedings and on appeal, was at the intersection of motivation to combine and missing elements.

[00:29:29] Speaker 01:
It was about the motivation to modify these very different references.

[00:29:34] Speaker 01:
And so it's no surprise that the arguments took both forms.

[00:29:37] Speaker 01:
And I would just note that on appeal, you see in our opening brief

[00:29:41] Speaker 01:
The first point heading at page 65, the last paragraph at opening brief, page 72, are all about the question of elements.

[00:29:50] Speaker 01:
And so there is certainly no forfeiture of that question here.

[00:29:54] Speaker 02:
Second, I want to- Can you help me understand where in your briefing you raised a motivation-related argument to the board regarding claim nine?

[00:30:02] Speaker 02:
Like, where in the appendix would you set me to for that?

[00:30:06] Speaker 01:
So I think the pages where the arguments were made here are 419 to 420.

[00:30:11] Speaker 01:
And at 489, it certainly is the case, Judge Stoll, that we did not use the precise words motivation to combine.

[00:30:21] Speaker 01:
And that's why I say you have to understand the history here about what Google was arguing, that they were arguing about the need to modify these references, which again is right at the intersection of motivation to combine

[00:30:34] Speaker 01:
and missing elements.

[00:30:36] Speaker 01:
But even if you thought that motivation to combine were not properly preserved in the board, we still have the question of the missing elements argument.

[00:30:47] Speaker 02:
And they haven't- Where's the missing elements argument best made in your blue brief?

[00:30:51] Speaker 01:
So I think the pages that I just cited, the point heading on- Wait, the pages you just cited were from the board.

[00:30:57] Speaker 01:
I'm sorry, prior to that.

[00:30:59] Speaker 02:
I just want to make sure.

[00:31:00] Speaker 01:
Start clean.

[00:31:01] Speaker 01:
Opening brief, page 65, the point heading.

[00:31:04] Speaker 01:
Opening brief, page 72, which I believe is the last or the penultimate paragraph of that argument.

[00:31:11] Speaker 01:
Both of those are talking about these missing element issues.

[00:31:15] Speaker 01:
And again, even if the court were concerned that these arguments have shifted at all, this is exactly the sort of extraordinary case

[00:31:23] Speaker 01:
where, given Google's admissions in their red brief, it would be appropriate to recognize the issue.

[00:31:30] Speaker 01:
If I can, I do want to just quickly address this issue of inputs that counsel for Google raised.

[00:31:39] Speaker 01:
That's at Appendix 3169, paragraph 151.

[00:31:44] Speaker 01:
And that, again, is just wrong as a matter of claim construction.

[00:31:48] Speaker 01:
The inputs are into the mobile device, into, as my friend put it, the service-specific application.

[00:31:57] Speaker 01:
But that's not what Claim9 calls for.

[00:31:59] Speaker 01:
Claim9 claims a message to the remote streaming service.

[00:32:05] Speaker 01:
And so even if there is some antecedent inputting to the mobile device,

[00:32:10] Speaker 01:
That doesn't satisfy the claim limitation of claim nine, where you need, again, a message going from the mobile device to the streaming content service that causes the first cloud server to take certain actions.

[00:32:29] Speaker 01:
I think time's up.

[00:32:30] Speaker 01:
Thank you very much, Your Honor.

[00:32:31] Speaker 01:
We would ask the court to reverse or at a minimum vacate.

[00:32:35] Speaker 01:
We thank both sides, and the case is set.