exhaustive search exhaustive means to go through completely to use up entirely in the case of this type of research it means that you're considering every single one and making sure you're going to get every possible match in this case there could be multiple matches because we're so for example the federal circuit will not exactly match court of appeals for the federal circuit but it can be a near match and that's our point but you can't just stop looking at one bit of data or one note you have to consider more than that and there really isn't any reason in the specification to go otherwise in terms of extrinsic evidence the best the other side came up with was a wikipedia definition of brute force search which we'll call that equivalent to an exhaustive search but what it says is check to see whether each candidate face so their expert hadn't even a pint at that point it was just more argument in our case an expert with the position i'm in the board did not credit our expert they basically dis said we hadn't proven you should include that particular usually you have something in the intrinsic evidence that points you one way or the other others are dictionary definition if you don't have that then you have to take the broadest interpretation i think the word got a little messed up because a bug wouldn't come back to your question did either apart from the either expert point to any documentation from the prior are suggesting what meaning this term should have i don't recall any and so that's why we're in a situation where you pretty are going on the claim language and if nothing rules out our reason what your petition and when again you're dealing with a non exhaustive search for a neighbor it's not an exact search you can't just stop at the first bit at least we had a reasonable interpretation and if question the four forty one pound for example that relates to the fine work such as a digital audio or video file without needing to modify that so that it's looking for a work not necessarily the result of a search for it for data and construction seems to be focus more on data as opposed to a record and it seems to me if you look at the patent and appendix ninety nine column a as starting with that whole language forty five run into the next page i think it's clear there that it  speaking about the data in fact it says that that's not what the pan is about and it we first two things such as in trees and and walks away from having to make a bin we refer to it as data records in a database i've been trying to avoid some of the semantics and basically refer to you've got a search on non exhaustive features of a media work that's the claim language for all of these and so you're taking the media work you're extracting certain features which can be certain segments or it can be a mathematical manipulation and then you're trying to see whether that match is something that the user inputs maybe they hum it maybe they type it in whatever so in that sense the you know the other side has been focusing on the term database it really i agree it's not really a question of data based on amazing became term the question is whether you're extracting features from this media work and you're trying to find in your match to it or a neighbor search non exhaustive neighbor search for a near match of that item so we're not necessarily searching on the media works themselves we're actually doing a search of the extract and features and you were as an example of that so you were  have this media work and then you it's maybe it's got the first hundred notes of a passage of beethoven or something like that and you enter a tender search it's not going to be looking at all hundred notes it's going to be looking at the manipulation of one through ten true throughout m three fruit well it's a frame it's going to be a moving frame it's going to be looking at all the ten note extracted features and in fact in this case they're only asserts that one it will merge teaches you that you can throw out roughly eighty percent that is a non exhaustive search even under the worst definition because the expected features there are going to be that ten no subsegments and you know an additional limitation to the court to the board's construction you're looking for all data with the possible matches yes well ok that's our claim construction and i'm right the argument i was just making was under the board's claim construction on our claim construction we're they could be adjusted notes they could be you know relative hitches and that sort of thing so that or an adjustment of no data or just means of notes so you're going to see what does the first note match is that enough under there construction that's enough you can just say the first note doesn't match and throw it out and there are construction you need to consider holistically you take the extracted feature as a whole and compare it to each element in that that's a possible match and argue that you can't just stop at no one letter one the federal i don't think the board's construction is the kind construction disagreement isn't really relevant to the way the board ruled on conwell i think even if i win on the claim construction i still need to convince you that the board erred with respect to  was not if it was not a inherent anticipation because theoretically you could plod through a million records one by one but a skilled artisan would know that you search a large sort of database by using a non exhaustive search that's what anyone would do we were relying on the dot on the dr in the basically you immediately envisage it it's not in the system is a purpose test it's a question of what one's going the art would understand looking at the reference and the only thing you would do with a large sort of database is sort of non exhaustive way i see  expert testimony here i don't see that there's anything very meaningful in that expert testimony that says well this is the way i want construe it but it doesn't really provide any evidence that expert opined that it had to me in the art and you also provided an example of an objective source the wikipedia definition that the more accepted as an objective source indicating the ordinary meaning of  about the non exhaustive search is in the specification so what is it in  systematically enumerating all possible candidates for the solution and checking whether each candidate satisfies the problem statement what that means is we will have exhausted if we determine whether each candidate satisfies our algorithm why isn't that equally consistent with looking at all of data because your honor we do not need to look at all the data to determine whether each candidate satisfies the problem we need to look at  say the worth talking about all candidates that doesn't mean looking at the data for all of canada cygnus a sara lee does your honor and the reason is this if the question is this are we trying to figure out whether a given candidate matches or not we need to look at enough data to make that determination that's always the case with every type of exhaustive search and as judge raina pointed out in the context of this pattern that's where the specification decides this issue we can't divorce  have examined every sparking space we look at every parking space we don't have to walk around every car we get it from the front the back and the sides to do an exhaustive search for a parked car we don't have to look at from the one seven one patent specification ninety eight column six we get on the line twenty one we have is this work identification information storage one ten that's a database that explains it includes a number of items or records one twelve each of which we socially to feature vector the vector is the group of data we're going to be looking at so the whole context and we're going to walk through it is always about we've got a database it's got records it's organized it records each which has a set of context are we trying to when we're trying to find if we're trying to find items in a database that match we are exhausting if we've looked at every item we don't have to look at every bit of data in an item to determine whether or not i we have to look at enough data to satisfy or dissatisfied our algorithm our expert a pine that way we've got an objective source and importantly your honor their construction is completely one that has a mechanism for printing out and not looking at records so all the examples of non exhaustive church every single one of them is an example where it's going to prune out certain records those two things in the  record page for forty eight or eighty eight yes appendix forty eight this is the decision example of one of the decisions and what it does here expert testimony yes your honor but determine whether there's substantial evidence to support the board's finding we don't look for cites in the record the more doesn't have to cite it just has to be in the record that's this court's consistent holding a case after so there's factual findings about the ordinary meaning there is are statements in the specification they have nothing in the record nothing to support their construction without that is completely dort divorced from both the specification and the evidence and therefore in this court's system holdings it cannot be a reasonable interpretation and in fact as i explained it would be unreasonable it would be unreasonable to say we're trying to determine which records match and algorithm that's used that would be exhaustive and that's not how the term is used in the art which is why they were unable to after our expert professors that is testimony come forward with any example in any article any publication anywhere using non exhaustive or exhaustive as they would use not one is completely divorced from the evidence you are let me turn to the first reference that they argue about the board made a factual finding as to what were the possible matches and even more the more meta factual finding the possible matches were the extracted features corresponding with the reference numbers that represent a vector extracted features that using the wimmera and the more made a factor finding that the attractive features a matter of the ones the correspond to a reference mel twenty number google asserts that what matters is that you are looks at a subset of those in a subset they say is going to be a possible match with the board made of facts of finding of the possible matches where the entire reference melody that fact of buying sports supported by stat substantial evidence including a direct admission from their own expert be traditionally ask a very fundamental basic question here don't you it is wrong that's why the what's the problem with that quite why would it be a reasonable if we are looking for the broadest reasonable interpretation there are three reasons your honor first of all it's unreasonable because it's divorced from the specification any r we rely upon the specification our experts testimony in the wiki p d article all those things together support our construction by contrast there's not one page in this record they could it has to be reasonable and to be reasonable it must not be divorced from the specification and the record evidence that's a quote from the case popov it can't be that if the specification provides you know health in that it can't  both parties definitions are not supported one way or the other by the specification no that's not treatment you know looked ordinary meaning you aren't there's there's there's an issue here it's not that we need a definition the specification passages that describe exhaustive a non exhaustive searches that factual finding by the board is supported by substantial evidence so the the specification does a den of fi exhaustive and not exhaustive searches more over it give this is not a specification where we're trying to do non exhaustive search of cars in a parking structure we're trying to do a non exhaustive search of items in a database and in that context the only reasonable recognition recognition schemes typically employed plate search algorithms that increase efficiency by intelligently searching only a subset of potential matches i e non exhaustive algorithms he doctrine we rely on findings that the board actually made the case then which he's relying simply it's like the supreme court's universal camera case and basically says you look at everything in the record in other words what both sides have submitted and then a jury verdict that situation you can in er maybe that the jury relied on something in the case of an agency decision you've got to have findings by the board the board did not make findings about the meaning ordinary meaning of not exhaustive search we do agree that it depends on context and but the context is not a parking space the context here is something for example you're comparing to melody's comma terrible singer i enter things wrong you've got to be able to figure out whether that's an ear match and you can't do that based on what their construction  construction says one no one bit is enough my colleague is saying that while you don't necessarily need all of them well that may show that there's a range of reasonable interpretations but this is a b r i standard here this is a case where the b r i standard to be one of the reference melodies but it's not comparing the whole twenty but it's comparing the ten notes that you enter and it says to disregard everything that's basically you're aligning to a raise and disregarding everything that doesn't line up and then he's telling you don't search all of those don't search one through avenue or through through twelve three through thirteen only to the ones where it lines up so he's only searching eighty percent so really you're happy do an apples to apples search not an apples to oranges or if you don't do  twenty you're searching extracted features of ten it might look if i may i just like to mention the housekeeping that there is a little bit of discrepancy in the briefs about which claims are on appeal and  which references go with which claims i've discussed that with opposing counsel and what i would produce is proposed to submit a letter from the parties jointly i don't think there's a real disagreement and we would just clarify for the court which planes are at issue and which ones go with which reference