to support that the findings claim eleven of the three one four patent describes an additive providing demographically targeted advertising to a particular user claim eleven also requires that the demographic information acquired by the method include information specifically provided by the user in response to a request for said demographic information the three want for patent is not expressly described to find demographic information although it does define other terms the board construed demographic information it has collected characteristic information about a user and you agreed that i construct we are not disputing that construction that's right yeah but we do dispute that there's substantial question erica i have it discloses the collection of demographic information the board found the demographic information to disclose both and the questionnaire and in the collection of certain to future user information it's later transferred to the includes identification information about the user that would include a password and perhaps other identifying information what about the fact that it says that there in addition to that there's a personal profile that is used to target specific so it says that there is some identification information that's stored as part of the identification information in the subscriber data but that doesn't necessarily exclude other information that might be collected through the questionnaire that could also be identifying of the user so it does seem that there are specific identification information that's collected and stored as part of that identification information but since we don't know what's in the questions it's possible that maybe there is a question in there that does some identification about the fact that th reality that isn't a blood is in the background of the invention it's yes in the background of the three one four and it's undisputed that one way to collect demographic information is through the use of the questionnaire but there's perhaps other ways to collect demographic information and just because it can be collected with a questionnaire doesn't mean that it is an anticipation of wires that there be a disclosure in as much detail as in the claim and that's what's missing from guy so you ask what questions could be asked it's not demographic information through the questionnaire so an advertiser might want to know when was the last time you saw a movie what was the movie when is the next time you're going on vacation how long are you going on being lazy that demographic  aggregate with with other information perhaps there is there's a way that eventually it could be but i would say that if the definition of demographic information is taken to that sort of extreme anything is demographic information and that can't be the case there must be some information that's not and questions can be asked to the questionnaire that are not that do not take demographic what about the internet usage history and why is an internet usage is tree that disclosing guy and trying this demographic information limitation so there's two reasons for that the first is that where user goes on the internet is simply that it's where the user goes on the internet has nothing to do with demographics but under the three one four patent computer usage information i just as defined construed by the board we're talking about collected characteristic information about the user so if i don't know if i go on the internet and there's a clear pattern then i can't help myself i keep going n dot com over and over and over again and you know i now know these magic machines around the network see that and now they decide they're going to start feeding me usage information repeatedly throughout the claim there is demographic information that that's acquired about the user but then the computer usage information is separate so and the third element of claim  eleven describes acquiring demographic information about the user said demographic information including information specifically provided by the user in response to a request for the demographic information and then the software that's provided to the user in the next element no i agree the claimant talks about computer usage information and then talks about demographic information but i didn't quite see anything in the claim that necessarily cleaves apart and why one can't be perhaps a subcategory of the other so the last element of claim eleven associates the computer usage information with demographic information and it wouldn't be possible for those two sets of information to be overlooked to be overlapping if they're going to be associated with one another i mean they must be separate in order for them to later be associated so so that's one of the reasons that they say that they must be separate but there is a definition for computer usage that internet usage information meets the claim constructions collected characteristic information of the user then then i think that's the end of the game it would depend your honor because first of all our view is that the questionnaire does not call for the collection of the demographic information if the court agrees with that than the the presence of then the status of computer usage computer usage information as demographic information does not establish that all of the elements of the claim are bad so let me try to say that a little more clearly what i mean by that is in the third element of claim eleven the only requires the acquisition of demographic information about the user and that must include information specifically provided by the user in response to a request so simple computer usage information is not provided by the user in response to requests so if that's the only source of demographic information and there's not a deficient disclosure and a guy a reference to invalidate  i'll just repeat what i was thinking again if i mean what is demographic information we could have a debate about it but we have a claim construction that has not been objected to so now we have to filter our analysis through that claim construction so it's almost like what is demographic information mean who knows but with the type of the side because now we're dealing with the claim construction like the characteristic information of  user is the browsing history of the user collected characteristic information of the user the think that what this kid will down to at least with regard to this limitation would you agree with that not exactly your honor so i think that the the individual web sites that a user visits are not characteristic information about a user and this is something that that mr goldstein discussed in his deposition when he was asked about whether or  not computer usage information could be demographic and he repeatedly said that no it cannot be the definition that the board ascribed to demographic information that is characteristic of a user it must a sports team so they find out my favorite sports team is the michigan state spartans and you might say well that is not collective characteristic information about me i think it's an answer to a question i wouldn't say it's a characteristic it's not something that's enduring so something that simply is what did you eat for breakfast where did you go yesterday these are not characteristics of people they're they're simply data points that's not characteristic information  provide targeting advertising well there's two different questions there so would it be useful to target advertising i would say yes is a characteristic information demographic information i would say know something to be useful to an advertiser like where did you go yesterday what was the last movie you saw what was the last book you read that might be useful from an advertising perspective but i would not say that that's characteristic of a user or that it's demographic information in the support you've precision number of the issues i want to address you know our response the first one was the observation that you made that the board's definition of destruction of demographic information is very expensive and that definition in we ask mr goldstein that is deposition he freely admitted that was an example of demographic information in that if you found a nine hundred eighteen lines five through twenty three now the other issue that was raised was whether the process as being described and you know of using a questionnaire to collect information satisfies demographic information or current here there are substantial evidence that was before the board that demonstrated that's what is taught by the correct legal question when you're looking at interest patients what is a reference to teach the person a skill in the art and hear what the evidence demonstrated supported by substantial evidence was that that technique that was describ using a questionnaire to collect information and then to create a personal profile using that information was in fact collecting demographic information we talking about this it's private data there's two feet two features a video which  data correct so there's two features one was the questionnaire process which is used initially to create the personal profile and the second process was the updating in that person with this things like the web browser history and what that process of what that evidence demonstrated was that the personal profile is initially created and contains demographic information and then additional demographic information is leading into it within the construction also requiring that the information not identifying the user yes and that was demonstrated to be the those features of that process were demonstrated by the evidence for the board one thing that we'd like to flag is that the board has substantial evidence they provide for both else one was in the process that's being depicted in the show that was recognized by our expert dr ho as being a very common technique for collecting demographic information in that process that and he recognized that as a very common technique that's also reflected in their own patent which says that perhaps the most common way of collecting demographic information is using that questionnaire technique into borderline on this questionnaire from  it states very simply we agree with the tissue after reciting the two features that we set out in our briefing and you see one phase of that discussion focused on the e o process of using the questionnaire collect the demographic ration the second aspect was a subscriber information you being used to update the personal profile and we believe that's demonstrated a board record as the evidence before it satisfied the claim by either those problems but here when you look at what they are doing in their briefs before the court they point you to the abstract they also point you to a passage which is in their original file and this is at eight sixteen twenty five and what's being referenced in that latter point is the technique of using the real time to puter usage or from ation to display which added skin to pop up on the user's computer and that's a very different concept from the idea of using real time information that might be going back to the service like different apps so that that in a nutshell is the problem is that there was confusion about what the real time information is being used to do and when you look in their pleadings and then you can claim that point again sure the information or use of real time information one is the user's actions on the computer are being tracked and that determines what will pop up on their screens and on the client computer as the ad based on their actions that's local to the computer and if you look at sixteen twenty five you see these identifiers as the quote from the ad today site these identifiers create real time reactively targeted advertising so the program can respond to user interaction with the computer whether the input relates to a particular category reformation and instead of intellect advertising related to that category of information so you think that's all happening happening at the local client right and that's that's what that was the subject of testimony that there's some the local client that's ground there's a path there is a there is a set of ads that are resident on the client that are being selected or told are presented based on user action it's also things like whether the user is active and looking at the screen but that was one instance of the use of real time which doesn't align with the plain language they added into their plane which is speaking of a different concept may be focused on the subscriber on the server actually selecting new apps and the again this goes back to the legitimate exercise of discretion by the board and looking at the memo that was presented and finding that in the absence of a construction in the absence of detail that maps  description to the claim elements being added and in the question that was raised about what real times referring to that there would be a question about whether that is enjoying a written description supporting the board looked at all of that and decided correctly that there wasn't rea scriptural support for that that claim now there's a number of other issues but again when you when you're reviewing that action of the board and denying that motion to amend you have to look at it from the director of the the perspective of whether the board first of all explain what the meaning of the claim terms are that are being presented and then there should be an explanation map and pretty clearly for their board so they can determine whether that claim amendment is enjoying written descriptions or in the specifications that i think in this instance would require more than simply listing various citations in the patent specification especially when it's not clear what the claim elements are that are being added into going back to demographic is making the point that computer usage information that term is used in the claim can't possibly be the same thing interchangeable with demographic information because that's a different claim time using the claim and ultimately the final limitation talks about associating the computer usage information with and demographic information using the unique identif referenced the demographic information and the computer usage information are very broad categories of gratian they cover many many different kinds of information in the there's no definitional language in the pattern that says a computer is a different nation cannot also using two different kinds of information one would be an instance of computer usage of permission and that would be correlated using the unique identifier to an instance of demographic information no requirement that they be different or identical you can more regionally reasonably understand that claim term to be in many images imagining that two different types of information are in fact were dressing different categories or different types of information well how would the house guy view performing that used such as the web browsing history to refine that personal profile other information is being stored and used in the process to react and advertise in that process and the ecosystem is using a unique identifier which is a collect information sent from the user's computer to the servers to identify that information is coming up when that comes into the you uses you know uses the composite of these different types of information that have been collect server and is associating that information on the client as well as an application and using that information at the client side to associate the information that's coming back from the server to determine which ads are being displayed on the user and plainly using information that's connecting the two categories of information going back if i could to the question i think you correctly focused on the overlap question i don't want to just flag that in the three one four specification you can find examples of information falling into both categories and i would direct your attention to a fifty two at three column three lines eight to eleven that gives you a number of examples of demographic information one of which is times that you go down to the definition of computer usage information that's just down the road a fifty two lines thirty seven or forty one and you see a reference to computer usage or from ation  being or including the time of the day or days a week they use the computer so you can see the information that has been used in the of those times under from a shoot is landing in both categories as it's been defined would like to go back to a question the judge chan asked early on in distributions presentation address chan asked whether the board relied on the questionnaire and its finding that there was a disclosure of demographic information  questionnaire there's nothing there that says that the questionnaire describes demographic information or disclose demographic information this is important because a questionnaire was the only thing presented in the petition as a disclosure g thirteen recesses the petition responds and says you know the profile questionnaire of dates these are personal profile is demographic information and then they say we agree why isn't that enough to show that the paragraph that follows that on page fourteen they do say we agree with petitioners there's not it's not necessarily referring to anything specific there's the one liner about the questionnaire and then there's a detailed discussion of the  computer usage information being a disclosure of demographic information so there's a one sentence statement about what about the questionnaire it does not say that the questionnaire is a disclosure of demographic information and then there discussion of the computer usage information being demographic information so i think the correct answer to judge a chance question is now the board did not rely on that and that is the only thing that was in the decision as a disclosure of demographic not make it specific finding that the questionnaire does this close demographic information but even if they did make that finding we would say that that finding is not supported by substantial evidence the paragraphs that microsoft cited from dr hose reports there's about seven of them and they're the only ones where where it cited for at the evidence in support of a finding that the questionnaire is a disclosure demographic information none of those paragraphs demonstrate that the questionnaire does in fact as opposed to could be a disclosure of demographic information or a way to collect demographic information dr hotez only that it could