before i begin my argument i wish to make a clarification with regard to one of the president's and which we rely go pro i reply brief discuss go pro as involving multiple modes of distribution and not distinguishing among them that that talks about what what happens to these materials for purposes for facilitating cross organizational communication what does that mean that you referring to the joint terms of reference of the standard setting organization right where it was the established was that all the j c t documents would be publicly accessible to permit cross organizational communication between the standard setting organizations the parent groups the c g and peg and also their members which are representatives of leading parts of the economy and in the industry but i think just to clarify your honor i think lists are undisputed there are certain issues about the qualification of the recipients were willing to set that aside and just focus on what the board front was undisputed which is the that it went to the two hundred fifty are only talking about distribution to those involved in creating the reference so that the student and and the students advisors they create a thesis if just because it's shared among them and even maybe incidentally to the to the library and we've said that's not enough because those are the creators of the reference and as i understand what the board is contemplating here is that what you what we were talking about is simply sharing the the very information as it's being prepared among the creators now there might have been a lot of creators but it but from  perspective that is the question and so my question is assuming i accept that yes so simming i said i said well if i were doing is sharing it among the creators and that that that wouldn't be enough that mike my biggest question is with respect to the list serv does that go beyond the creators i think i would take issue with the characterization of all the part of the saying what i would say is that the fact that the email distribution is to a large group and there is the key is there is no restriction or expectation of confidentiality they are able to distribute that use it freely and therefore it is entered the public domain and that's why i think the fact that this is a standard setting organization is important this is not an ordinary members of society and that's why this is not a purely private patients these are so your erogenous even if the only evidence is disclosure to the standard setting organization we should just assume that it went beyond that well that it was able to go beyond and therefore it was in the public domain it was because it was the very purpose of the standard organization so you have here in this organization are the representatives of the leaders of industry and the academy and they're setting out to revise the prevailing industry standard for what i'm for if that's the case why wouldn't you have presented evidence that in fact all of those people shared it with other  people that's not a sandwich an offer that the this court has never required that for example an go pro that was a distribution through attendees of a trade show which was not advertised were open to the public beyond the dealers and there was no showing that that anybody who attended it was actually a person of skill new york but that but one of them and of course we've had we've had acceleration after that to explain the limits of go pro but that would go pro was talking about is that it was completely open to the public and there was no indication that of that public wouldn't have had the ability to to get that same information or attend the show and here i guess the question is you're just saying that because they are members of the standard setting organization there by definition the public and what who i'm saying is i think the board concluded that that wasn't the case and that you presented no evidence that there were members that were that that anyone that were not members of that organization would have access to this well your honor i think one looks to the question not of would have access but whether they could have the exercise of reasonable diligence and the fact that this is a standard setting organization and also that all the major companies are represented means that all of the product engineers are the product developers who are in these companies with reasonable diligence could get these documents from their representatives or they could find them on the website since this is an major industry event when you know as the prevailing stupid ass that could have a question as it relates to the website and found that because it was so difficult to to manipulate the website that they couldn't have so put and that's a fact finding put that aside so is it your position that at least as it relates to e mail a list of the board to ask the right question they didn't ask the could have question they only asked the the question of did they actually asked no they didn't actually ask that question instead they committed a legal error by requiring a showing that the people who attended comprised the quote significant portion of those interested in skilled in new york so they were looking at the attendees i don't think that question of numbers right i mean it could be seven or it could be two hundred seven and they don't necessarily just because seven in certain circumstances would be enough it doesn't necessarily mean that two hundred seven  could have questions i think this court could determine as a matter of law based on that the essential facts but at a minimum can remand to do that they could have question but i do want to take issue with your honor's premise every attendee was a creator of the document that's really not true i mean the group as a whole is a creator but it was it was mr brass and the ad hoc committee that actually developed the standard and then it set out  to all the attendees and it will be the subject of this what's coming geneva conference in which people can debate it discuss it so i never i don't understand any kind of creator ship to be the driving force of this course case law but i think it's not present here very large working group recreating these documents this was the fourth iteration circulation not necessarily the final one but that because there were so many participants there were attendees at significant i mean what are we going to do have all got the internet now people who are working together a communicate by internet rather suddenly can find some way of penetrating we're told it wasn't be public and that's why the website was open to to the universe i think about that it also suggests the persons who who received the documents the attendees whether they had anything to do in terms of you know the actual discussion of the of the document they're having input or they're monitoring it but it's the document was created by this by the at heart the working group out of the to reno conference and then distributed  it's never in my mind never contemplated anyone before and those of us that are putting it together it are going to be reading it and till it's final and so i guess what i'm trying to understand is is that the mere fact that we're still engaging in this working document analysis that you're saying that doesn't matter if there's a bunch of people doing well now i would say i'm presuming that in the circumstance of working on a board going to come up with a document that you're not publicizing that document you're not and there would be an expectation of confidentiality to you have a final product that was not the way the j c t the j c t all documents including input documents working was everybody was able to share it publicly what evidence did you present that if well he did testify i think he would have did have personal knowledge and this would be you know lack offense i've seen your name many times thank you the issue here is the fact that we've got a board decision that has controlling findings of fact that d s of findings including a finding that samsung presented insufficient evidence to establish that the either the email or the document repositories were publicly accessible but what about the fact that mr brosnan did testify that the list server was open to the public that if you wanted on you could get off i mean with respect to the list serv i think that it wasn't anyone just off the street he was intimately involved with the organization of the task force i guess it was so i mean strikes me that he was certainly in a position to know  were there was deposition testimony for example where mr gross was sort of this pressure aside i don't know who was at the meetings that was in my responsibility but then juxtaposed to his testimony that oh others you these other people would be doing something you know just unsupported and so and this is this goes back to the one first as could discussion that i had with your friend on the other side so the the board us certainly was qualified to testify that other people could get access to less or what the board said was that he didn't provide any testimony that they actually did and isn't that maybe the wrong question the question has to be is clegg with reasonable diligence the public and gain access to a well no i don't i don't think so i certainly don't think it's dispositive this there's a there's a number of facts that all need to be question but i don't think it's necessarily a wrong question that just by not asking that that's the wrong question they asked whether this was publicly accessible and they found after looking at the nature in the copy of the disclosure that it was not publicly to excessive on that's ultimately the finding of fact that's that controls here and a point to the bear case as being even the intent that of reference is is to be publicly available even that ted should not be a can of controlling should not control so i would i would say that even if they went down and found out it could have been this reference could have been distributed that's not controlling because what we're was it actually publicly available we would have what's your response to your friends argument that there was no confidentiality requirement so that every single one of the participants every single one of the attendees was free to pass it on to anyone else they wanted and there was no restriction on that shouldn't that be a factor that we consider or that the court should consider and  should be it honestly and then the board did consider it it recited that fact and mentioned that we don't dispute that fact and then it went through the the fact intensive role that it's supposed to be playing and it determined that emand for an additional question that we know is not a dispositive question there should not be a per se rule of law this should be something that is left for the courts to decide on a on a case by case basis which is well established and this is how we we make these determinations and the lower bodies should should assess all of those facts and then if they make a mistake in typically if i'll ever viewed all of the cases that were submitted in the in the three or four that have come out since the cases in which we've we've seen a vacation  mand is when the court considered to have you know not enough evidence but here we've got that their main complaint is that the court considered too much that they considered they needed a publication or were not advertisement certainly in a situation where public accessibility has not been shown and has as we have here it is perfectly reasonable for the court to go above and beyond who will simply find out the email wasn't publicly accessible then we'll look to see maybe they advertised it but there's no evidence of that these are you know what i mean have has there ever been a case where two hundred fifty people had access to information and we said that wasn't public which is a i don't see that they've even challenge to the ruling that you know the factual determination that this is not publicly accessible or certainly not the factual ruling that the  that the evidence is in is inconclusive or is insufficient both of those are factual findings in the acceleration bay case we have a very clear statement that of we will not disturb finding of fact of insufficient evidence and that's what exactly what we have here is a finding of insufficient evidence samsung was in control of all the evidence mr gross you would imagine would be in control of all that evidence and after  in patent owners reply these affirmative these problems were brought to the attention of samsung they rested on their laurels they decided back to the institution decision they didn't bring forth any evidence  which if what they're trying to argue is true if it was disseminated you'd imagine samsung would have an e mail somehow within their own company that forwarded this draft throughout throughout their company and they brought nothing forward and in the panel the board below rightly found that was in substantial evidence and i don't i don't think that it's wise to get into an area where we're starting to say well when a group of people are drafting and working on a particular document that that's going to somehow rise to being publicly available where there's an communicating privately with each other even if they're collaborating in the form of producing what here is called a working document that that document is not in the public domain but technology has moved us to the point that's except where there may well be access to working documents that was not previously available here have the the board trying to  preserve the confidentiality of groups of scientists acknowledges working together but perhaps perhaps we've crossed that bridge whether by hack or by ingenuity or devore else working documents using now what is the standard method of a new action communication can be penetrated and there are large enough document and that it becomes part of the public domain and that interested persons can figure out how to find it now so when we have the board saying no we don't like that well if we pump public review because of hackers or whatever and then moved into a strange place indeed i don't think the law contemplates that at them at the moment i will mention in a fact that the membership themselves they didn't consider themselves to be part of the public in need as did the mpeg community in fact they recognize exceptions on in this is appendix for six to nine they recognize  exceptions in which a document could be treated confidentially out confidentially in still distributed to the entire membership of both both of those developments and therefore  u i think that because they don't because these two bodies didn't consider themselves to be the public it was a perfectly reasonable fact finding below that they weren't the public but you're saying they recognizing exceptions but in those circumstances they said that they would be designated as have financial and there were plenty and would be the access would be limited to those with password protection but that didn't happen here and there's received the working draft and if the if this membership considers itself to be outside of the public for the purposes of passport control then it should it's perfectly reasonable for the board to consider the this these bodies to be outside of the public for the purpose of the dissemination of the drafts of their work seven which is the two reno meeting they talk about that the document distribution was used this web site was used for all documents and the reference he referred to of forty six twenty nine in terms of reference establishes as the presumption of public documents as far as mr process testimony that is the he said seventy nine four seven based on my knowledge and recollection the j c reflector includes as its members the participants and interested individuals he would know that as the man who is responsible for the darkness responsible for uploading them and response in them responsible for sending least with regard da the the meeting was restricted to two the participants had to be qualified and invitees right because it's a working group but the document was free to be disseminated they wanted public comment because you need all of industry to eventually agreed to this standard into the devices can talk to each other and that's why you may not be actually working on any particular aspect of it you could be monitoring it you present any evidence that the attendees actually shared the document well i don't think that's required it's certainly been seem to have been something that would have been pretty easy for you to  been among your own personnel well why didn't you present that i suppose that would have been only for our personnel in that subject of the disagreement that doesn't show broader dissemination to the public and you never do have to show actual subject when  so i think if if it's understood these are public documents and they were free to disseminate them and they represent virtually the entire industry and academy then this is in the public domain and it w confidentiality restriction and expectation of confidentiality or kind to the contrary is there a purpose of making a public that's what we i have here that's what distinguishes that you wouldn't you wouldn't go so far as to corporate representatives for the most part these meetings or representatives research institutions when you say restrictions on confidentiality it's i mean i communicate with my colleagues all the time and i don't tell them this commercial companies and there was no expressed confidentiality restriction but there was an expectation of confidential and the court said that's not a principle here the very purpose of this enterprise is to be is to have public dissemination and i think that is as necessary as their evidence of that fact other than attorney argument that that was the purpose of the enterprise oh yes that the that's what the terms of reference say that this is well purpose of this was develop a standard to replace the existing standard and so that you have a new standard which all the industry welcome plot so there would be no reason to keep working draft of the standard confidential this as a policy that all documents would be public including the input anything that anything that's written down becomes a document well that's that's that's interesting well i think quite a dramatic change perhaps perhaps it's not required by advances in technology the war didn't think so oh i say this sort of have to figure it out i don't think there has to be a broad rule i think in the context of a standard setting organization which is designed to create the next standard the next generation standard for video coding i think that that is appropriate and everyone else can preserve confidentiality except the standard creating organizations that will write i think you can you can create confidentiality expectations or restrict xpress restrictions and then this wouldn't be a printed publication if you're in collaboration and it may be that many forms of sort of that you know groups of scientists working collaborative y a research project they may have an expectation of confidentiality even if it's not express here is an expressed policy a publication of the documents all the attendees received it with no restriction or expectation they were free to describe distributed throughout their organizations throughout samsung l g apple everybody could get these these documents if or early could find it in with the exercise of reasonable diligence either to get documents from their representatives or to go on to the the web site that was universally open and as a last point on the website i would like to point out i think that were created in error in only looking at the accessibility of the website to members outside of j c t and mpeg mpeg is different it's parent organization is not actually directly formulating the standard but it will oversee the operation and eventually approve it and those folks enter j c t folks their meetings are colocated they know the standardization process those folks would be able to find that document and even under a website that is organized by meeting so you can exclude a huge swath of the relevant public all these representatives of institutions and companies and i think it would be untoward if one could recapture as private saying is if the standard says any of the documents that are generated by this process are public and they will be on a public website so that was what the terms of reference are so they they are free  asians if they found it necessary to create confidentiality restructure write anything down and there we could it well there's no reason to keep confidentiality in a standard organization because you want to have the mind of the whole organization and your own