frontin for the car or relational database the second error the board committed was accepting the hearsay declaration mr nuber has substantial evidence of the public every part of the database can be assessed remotely on the web and changes in doubt are automatically reflected throughout the database mord irani asli interpreted the six ninety p but rephrase it hasn't got a business exception oh because your honor we're not dealing with weather three point zero he is or is not a genuine document we're dealing with the issue of whether five thousand copies or three might according to a review he doesn't say whose review of essay p g records he doesn't say what records we're five thousand upgrades of our three hundred six he doesn't say who made this review he doesn't say what documents were reviewed and as we stated in our brief as far back as the supreme court's decision in barbwire and the present your predecessor decision in in re wired up and why we are there has to be some confirmation for these hearsay statements in addition if your honor will notice at the bottom of the declaration before the signature this is hardly the typical declaration under seven hundred forty six instead it uses a patent office form which is i declare that all says statements made here in of my own knowledge are true that all statements made on information decision was a hearsay declaration that doesn't identify who looked at what records much less identify any sample of those records and as we try to argue to the board to this court of briefs this violates due process it takes property based on hearsay but more importantly from our our point of view and there isn't substantial evidence to confirm in this court that class if because i'm a little confused about whether you're arguing solely that we shouldn't allow the board to rely on hearsay or that reliance on hearsay is a constitutional violation of what we're saying is that the board should not have relied on hearsay that as a matter of law or in this case in that case so you agree that the board is not owned by the that the rules of that here are we trying to make that clear and so it's up to the or whether or not to admit hearsay it's not up to properly exercised its discretion and that that wouldn't be a lie aleisha so i don't see any light of day between us finding an abuse of discretion and you making some kind of due process argue that we believe that each case has to be looked at under its own circumstances here because we have the in mutual combination of a declaration let me ask it one more time for let's say we find no abuse of discretion do you still argue that  violation and if so why we argue it's a due process violation because we should not be deprived of our property based on uncorroborated fear say statements particularly when it's not even under proper  published such an extent that was available to all those skilled in the art who would be working in the sharing the key is not with i'm sorry with it which includes for example somebody isn't a doctoral thesis on sufficient evidence that three point zero eight was published in a bill to those people skilled in the art the reason we say that is because we have a declaration that says it's signed under hearsay and as a set of paragraph nineteen it doesn't say who reviewed my dear mr new or might have been a lawyer might have been somebody else your view what records and what we're saying is that is not sufficient to consider this as a publication and deprive the patent holder of its property now we tried not to make that our lead our brief in the brief what we said is even if your honour's considered three point  there was clear error here and the board improperly decided obviousness what we argued was that the board misinterpreted the patent is just calling for a web front end for a relational database interface on top you've got applications down below and then you have your doubts so you have a clear three tier hierarchy if you compare that with true of the patent which is client love at the application level parts of customer inventor master records are stored centrally so part of the data is with the user in the applications part of it is in the database at the same structures we deprive derive from the others so that data can be transferred from one application to another so instead of having all the doubt at the single database schema level you have a distributed throughout the system with the users and of cation and again that is laid out at eight twelve three zero four which makes clear that data is not centrally stored and is therefore not available to about products payments performance and person and so the web and the web enabled out of ace of the invention integrates the entire business all for domains and is integrated such that a change in any one part of the millions is automatically reflecting the other which is quite different than what you have with or thr access it's not referring to integration when you look at the use of the term integration in the past and it's referring to the single database schema that's the part that's integrated so you don't have one department keeping files here another department here another department here there's one big database and all the different departments of the company are accessing it that's the integrated portion and importantly that kind of integrated single database schema was exactly what was before the court and this court consider the reexamination of the two seven five patent and affirmed the rejection of those claims to the database schema as you'll note well you wouldn't know that because it's not before you got in that case there  also a web enabled limitation and that limitation wasn't appealed at all it was conceded a fact of late that it was still anticipated by this very same reference yes a pure reference now when it came before the court the second time they i think when commerce is probably a slightly broader term but i think web mineable is really just referring to access access to the program over the web as they say it's a silicates telecommuting by employees it allows people inside and outside the company to see the information in real time of the web that's what the references in the patent the very few references in the specification to charm web enabled seem to be getting at and if they wanted a much more to capture infringing products and software is defined very broadly not even as the internet but just as a some form of computer network so we're talking about a very broad claims in terms here that do not have the specific definition that big ben has been attempting to imply here so given this that office's position is it makes perfect sense that with their spec to the claims on appeal here that the examiner and the board but look to the general disclosures about commerce and the application and say wolf really what we're getting down to is web access  general level and not the guts of what the actual database is doing that's enough to make the obvious in this case and in fact if you look to the references cited by the board and its  involving certain web component and they show that you can take this exact database the exact safety three a database was elevated to be integrated into well into having web one three zero one eight s a p s own publication sad basically with minimal changes we were able to put our existing software and put parts of it on the web and  as your honor is stating it's not the magic language and paragraph twenty one it matters what matters is we're not dealing with you know a rule thirty six corporate rap who just has been shown a bunch of documents and it's wearing  and we're talking about somebody who worked at i think he for sixteen years in the shipping department who himself saw the very software that we're talking about gets shipped out the door with more or less user manual that's  attached samples and that's that that's right behind the declaration eighty one eight seven six and seven seven and seven eight and seventy nine and it looks like what they did was they looked at these five thousand plus records and they printed out from the database with unique numbers on each page copies of letters that were sent to their different customers and each letter has a unique number associated with it now it's not surprising that given the passage of time they didn't have a photocopy of those exact documents but they were able to find them electronically and print them out so here are three or four examples of the kind of information that was sent to the unique customers and those documents say that not only with the software shipped but the accompanying online manual was shipped with it and that's really what this whole corroboration issue comes down to i mean there's no dispute that the safety software three point  wide distribution there are references the fact it was in use by the coca cola company and one of the one of the corroborating documents attached that's in the record so i think what we're and almost doesn't matter in the sense that what your opposing counsel seems to be arguing with is the numbers rather than the fact that things were shipped  to find situation then yes they might have a point but here you know you're right i mean whether it was fifty five hundred all right now and that's when there was the question i asked you're posing thanks about obscure difficult to find situations to wit what what's the space between the door of all hearsay rule and what standard the board is going to use for reliability that well i think it's very much and the spirit of what the federal rules are getting out of there because it's and administrative proceeding i think it's more flexible i mean that the examiner in the bourne is really going to her home market reliability and in fact in some of the  as i'm sure your honour's are aware in many circumstances we don't even have declarations i mean all we have are that there are document there is submitted to us by the requester or that are found on the internet and the board in the examiner have to weigh the reliability this document and here we have you know the special instance that in addition to the documents themselves on their face being reliable we have we actually have you know and then a trail of a witness the first of all knowledge to work for the company so far from a situation where we're lacking reliability and proper ration it seems that we have a very high level of proper ation and reliability in the circumstances finally with respect to the due process argument you know we did want to point the court to the fact that you know these similar arguments have been addressed by this court on multiple occasions so that's how the apply for the lady of the federal rules and  decisions of the concept and i think it does and i think it informs and in a way that's favorable to the office because those proceedings are contests are proceeding or both they're much more like a typical trial proceeding parties are using the role of discovery here it's a purely administrative proceeding with one party participating with the expert examiner reviewing the evidence and you know there isn't the same back and forth so it's it's appropriate in these honor and again the key thing here is the legal conclusion of is this publication we're not dealing here i don't think with abuse of process in how the we're just going about its business rather whether this reviewing court looking at the issue of is this a publication as a matter of law should properly affirm the board when all the board have this was a rather unique declaration which says it's on hearsay and as i said in my opening remarks we don't know who reviewed the s e p records we don't know what it will he doesn't say he reviewed them i'm sorry he says really are can find the thesis based on whatever indexing may be available there might be one there might be two there might be three copies or three point they may have been distributed they may not have been distributed all we have this is hearsay declaration