[00:00:15] Speaker 02:
Next case is Cascades Streaming Technology versus Big Ten Network, 2018-14-24.

[00:00:22] Speaker 02:
Mr. Greensboro, good morning.

[00:00:26] Speaker 00:
Thank you, Judge Lurie and the panel.

[00:00:27] Speaker 00:
Good morning, your honors, and may it please the court.

[00:00:31] Speaker 00:
BTN puts all of its legal eggs in the district court's basket.

[00:00:36] Speaker 00:
So BTN comes to this court.

[00:00:38] Speaker 00:
They don't offer any reason to affirm unless this court exactly adopts

[00:00:44] Speaker 00:
the prosecution disclaimer ruling as found by the district court.

[00:00:51] Speaker 02:
Over Gupta, that's right.

[00:00:54] Speaker 04:
Do the parties agree that it's proper in terms of claim construction to refer to streams, audio, video streams, video streams and files interchangeably?

[00:01:07] Speaker 04:
The district court stated that premise, but I just want to

[00:01:10] Speaker 00:
I don't have a particular record citation to show where we disagreed with that proposition, but I think Your Honor is observing that the prosecution comments use the term streams and the claim construction with its disclaimer baggage

[00:01:26] Speaker 00:
use the word files.

[00:01:28] Speaker 04:
What I'm observing is that they seem to have been used interchangeably.

[00:01:32] Speaker 00:
I would agree.

[00:01:33] Speaker 00:
I would concede that.

[00:01:35] Speaker 00:
I'm not going to stand here and say that's wrong.

[00:01:37] Speaker 04:
Is there a genuine dispute of material fact with respect to any other claim limitations or is it just the different video files limitation?

[00:01:47] Speaker 00:
That's the limitation of the ruling on appeal here.

[00:01:49] Speaker 00:
I believe there were some other claim limitations that were brought up in the summary judgment motion, but they weren't reached by the district court.

[00:01:57] Speaker 00:
So the district court, the point of our appeal, Your Honor, is that the district court misjudged the point of distinction in the words used to distinguish Gupta.

[00:02:07] Speaker 00:
And here's how.

[00:02:09] Speaker 00:
The parties both agree, they both agree that Gupta discloses switching between its different streams, that the streams are different even in Gupta.

[00:02:22] Speaker 00:
And you see that on page 17 and page 30 of the red brief.

[00:02:26] Speaker 00:
And you see that from the words itself in Gupta, and I can go to page 809 of the record, paragraph 96 of the reference.

[00:02:33] Speaker 00:
This is a quote directly from there.

[00:02:35] Speaker 00:
Quote, the video streams have different timelines and also vary by quality.

[00:02:41] Speaker 00:
If you're looking on the geography of that page, it's the top left, I'm sorry, the top right of the page a few lines down in the second column.

[00:02:50] Speaker 00:
The video streams have different timelines and also vary by quality.

[00:02:54] Speaker 00:
So everybody agrees that Gupta had

[00:02:56] Speaker 00:
different streams.

[00:02:59] Speaker 00:
So it just can't be that when the inventor stated in passing that their own invention has completely different streams, that that was to make a distinction over Gupta.

[00:03:11] Speaker 00:
That was a point of similarity, not a point of distinction.

[00:03:15] Speaker 00:
And what ended up in the district court's ruling was some idea that the statements at page 3462

[00:03:25] Speaker 00:
were pointing to some similarity in the way Gupta's switch streams render in the same way.

[00:03:33] Speaker 00:
So the district court used the terminology cosmetic differences as naming whatever the supposed point of distinction was.

[00:03:41] Speaker 00:
And visual experiences.

[00:03:42] Speaker 04:
Well, you argued when arguing not anticipated.

[00:03:48] Speaker 04:
Gupta's, I'm quoting.

[00:03:50] Speaker 04:
Gupta's system stores multiple speed versions of the audio and video content for playback at different speeds, which is completely different than Cascade's video switching from one stream to a completely different stream without any alterations to the video or audio.

[00:04:06] Speaker 00:
In fact, Your Honor, I was going to right now read those exact words.

[00:04:10] Speaker 00:
This, meaning Gupta's system, is completely different than applicant's invention where the video is switched.

[00:04:18] Speaker 00:
from one stream to a completely different stream without any alterations to the video or audio.

[00:04:24] Speaker 00:
So what's being stated there is the point of distinction is switching without any alterations to the video or audio.

[00:04:32] Speaker 04:
When the PTO allowed the claims, it said the allowance was based upon its agreement that, quote, cascades.

[00:04:44] Speaker 04:
I'm putting an ellipsis in there.

[00:04:47] Speaker 04:
Cascades claims all features switch from first video data to second video data.

[00:04:57] Speaker 04:
As disclosed by Cascades, the first video data and the second video data are data from differing points of view, correct?

[00:05:06] Speaker 04:
That is stated in the examiner's comment.

[00:05:16] Speaker 04:
Why, then, doesn't the prosecution history support the district court's claim construction?

[00:05:21] Speaker 04:
Because Cascades disclaimed its now argued for construction when it attempted to avoid rejection based on Gupta.

[00:05:29] Speaker 00:
On that point, Your Honor, the district court actually rejected arguments that the claims are limited to switching among different points of view.

[00:05:36] Speaker 00:
That was actually the focus of the claim construction briefing, the Markman briefing and proceedings below.

[00:05:42] Speaker 00:
The defendants, BTN,

[00:05:45] Speaker 00:
advocated for a limitation in the claim construction so that the different files had to be different points of view.

[00:05:51] Speaker 00:
But there's claim differentiation that's contrary to that position.

[00:05:56] Speaker 00:
And there are a number of other reasons contrary to that position.

[00:05:59] Speaker 00:
So in fact, I don't even believe, Your Honor, that the excerpt that you just cited, Your Honor, from the prosecution history, the examiner's statements, I don't even believe that was mentioned in the red brief.

[00:06:08] Speaker 00:
I think that shift has sailed in terms of the parties trying to limit the scope of the claim to

[00:06:14] Speaker 00:
only switching among different points of view because that that argument just didn't fly you know no no that's not what I'm saying isn't that an unambiguous disavowal of a claim scope that encompass video files that are not completely different from each other if I understood what you say correctly your honor you were naming the examiner's statement after these events I'm asking you sure doesn't that why I'll tell you exactly because the words of the applicant which what which is what we really focus on

[00:06:44] Speaker 00:
when ascertaining prosecution disclaimer state completely different than applicants invention where the video is switched from one stream to a completely different stream without any alterations to the video or audio again emphasis switched without alterations yes in passing completely different stream is a phrase in this statement but that's not a point of distinction and it could not have been a point of distinction because

[00:07:12] Speaker 00:
Gupta had different streams.

[00:07:14] Speaker 00:
Everybody agrees that Gupta had different streams.

[00:07:17] Speaker 00:
So it was therefore wrong for the district court to find a clear and unmistakable, unambiguous disavowal.

[00:07:27] Speaker 00:
Because there was no distinction of, and let me turn now to the infringement issue, there's no distinction in these comments over a system that used image resolution differences among the different files.

[00:07:40] Speaker 00:
That's what the BTN system is.

[00:07:42] Speaker 00:
It's called adaptive bitrate streaming, and that involves, say, switching from a 240p image resolution to a 1080p image resolution.

[00:07:54] Speaker 00:
So, BTN switch, there's no dispute, it happens without an alteration.

[00:07:58] Speaker 00:
The inventions switch, it happens in the preferred embodiment and in the claims without an alteration.

[00:08:06] Speaker 00:
Where it comes to the point of distinction allegedly found by the district court, BTN's files are different, Gupta's files are different, the invention's files are different.

[00:08:18] Speaker 00:
That just wasn't the point of distinction.

[00:08:20] Speaker 00:
And especially so in the way the district court found that it was a point of distinction.

[00:08:25] Speaker 00:
The district court found that the emphasis was supposedly on cosmetic differences and visual experience differences.

[00:08:32] Speaker 00:
But you just can't glean that from the words I read from the record, nor from the rest of the larger paragraph.

[00:08:38] Speaker 00:
So Your Honors, there's briefing on several other grounds for reversal.

[00:08:43] Speaker 00:
And of course, I can take questions on any of those.

[00:08:46] Speaker 00:
But it's enough, Your Honors, that the district court misjudged the point of distinction in these prosecution remarks from 3462.

[00:08:54] Speaker 00:
And we therefore respectfully request that the court reverse or vacate summary judgment.

[00:08:59] Speaker 00:
You're not going to discuss the discovery

[00:09:04] Speaker 00:
matter at all?

[00:09:06] Speaker 00:
As much as, of course I'm happy to.

[00:09:08] Speaker 00:
So we brought that up, the amount in dispute is in context not very much but we brought that up in part as a service to the court and as a service to the bar because it's very rare that this court or any court of appeals gets to pass on the proper legal interpretation of the discovery rules.

[00:09:25] Speaker 00:
And the issue here is that the discovery rules as they stand do not

[00:09:31] Speaker 00:
state any mechanism for shifting of fees to reimburse for the briefing on a motion requesting a second deposition.

[00:09:41] Speaker 00:
With all the cases that were brought forward by BTN, none of them actually hold that briefing cost reimbursement is available when you get a rule 30 order allowing the second deposition of an individual.

[00:09:59] Speaker 00:
and I can go into detail on any of those decisions to show they're distinguishable.

[00:10:03] Speaker 00:
But the main point of our argument is you read rule 37, it doesn't apply to this scenario.

[00:10:09] Speaker 00:
You read rule 30, it doesn't allow briefing cost shifting in this scenario.

[00:10:15] Speaker 00:
Unless there are further questions, I'll reserve the rest of my time.

[00:10:18] Speaker 02:
Thank you.

[00:10:18] Speaker 02:
Thank you, counsel.

[00:10:19] Speaker 02:
We will hold that time for you.

[00:10:21] Speaker 02:
Mr. Pavean.

[00:10:24] Speaker 03:
Good morning, Your Honor.

[00:10:28] Speaker 03:
Greenspoon, my opponent, says that the prosecution history language that was cited by the district court does not, in fact, result in the disclaimer that the court found.

[00:10:39] Speaker 03:
But he glosses over the words of the disclaimer and says that in passing, the inventor in distinguishing over Gupta mentioned that the streams were completely different in the Cascades invention.

[00:10:55] Speaker 03:
If you read the

[00:10:56] Speaker 03:
the sentence, it's only two sentences, you read them in context, it's very clear.

[00:11:00] Speaker 03:
The first part says that Gupta is directed to a system that stores multiple speed versions of the audio-video content.

[00:11:08] Speaker 03:
So what does that mean?

[00:11:10] Speaker 03:
It's got the same audio-video content, but in two different speed versions, fast, slow.

[00:11:17] Speaker 03:
Then it goes on to say this, and this can only refer to what was just said in that one sentence, because that's the beginning of the whole argument.

[00:11:25] Speaker 03:
goes on to say this is completely different than applicants invention where the excuse me where the video is switched from one stream to a completely different stream now he would gloss over those words but in context that can only mean that we're talking about a stream that has different video content because the first one is the same audio video content just at different speeds and the second one is saying

[00:11:54] Speaker 03:
We have streams that are completely different without alteration to the audio and video.

[00:11:59] Speaker 03:
So they're completely different, different content.

[00:12:02] Speaker 03:
And we're not changing them.

[00:12:04] Speaker 03:
We're not making them fast or slow or anything else.

[00:12:07] Speaker 03:
We're just using completely different streams.

[00:12:10] Speaker 03:
So he's making two points there.

[00:12:12] Speaker 04:
Oh, I think your key word is completely.

[00:12:15] Speaker 03:
Yeah, it's completely different.

[00:12:16] Speaker 03:
Yes.

[00:12:17] Speaker 03:
I think modifying different.

[00:12:18] Speaker 03:
I agree with that.

[00:12:19] Speaker 03:
And based on that, the judge correctly found

[00:12:23] Speaker 03:
that this is a disclaimer of streams that are not completely different.

[00:12:28] Speaker 03:
And that if you simply have streams, as the judge put it in his claim construction, that are mere alterations of each other, then those are not within the scope of the invention because that scope has been specifically disclaimed.

[00:12:43] Speaker 03:
And I think that's all there is to this case.

[00:12:46] Speaker 03:
There's not much more to it.

[00:12:47] Speaker 03:
It's very straightforward.

[00:12:49] Speaker 03:
The judge did a detailed analysis of the prosecution history.

[00:12:54] Speaker 03:
The particular office action response that's at issue here is not very long.

[00:12:59] Speaker 03:
All of the arguments that they make as to why the judge was wrong simply don't fly.

[00:13:05] Speaker 03:
For example, they say that, well, really what this was all about, and I think you probably saw this in their briefs, was all about smooth switching.

[00:13:14] Speaker 03:
The invention's all about smooth switching.

[00:13:17] Speaker 03:
First of all, there's no mention in several of the claims that were under rejection at the time, and all the claims were under rejection.

[00:13:24] Speaker 03:
There's no mention anywhere in many of those claims about the concept of smooth switching.

[00:13:29] Speaker 03:
You'd have to somehow read it in there.

[00:13:31] Speaker 03:
Nor is it mentioned in this passage that we're talking about.

[00:13:34] Speaker 03:
The judge very carefully took the paragraph.

[00:13:37] Speaker 01:
Let's be clear.

[00:13:38] Speaker 01:
It is mentioned in the passage, but I think what you're on, because it's on 3462 in the exact same paragraph, but I think you're missing what, for me,

[00:13:46] Speaker 01:
was the argument that persuaded me they weren't right about smooth switching, which on page 3462, in the same paragraph right after the sentences we're discussing, it says, moreover, Gupta doesn't teach a smooth-based switching stream technology, not in page 82 nor page 96.

[00:14:05] Speaker 01:
The concept of smooth switching is completely absent in Gupta.

[00:14:09] Speaker 01:
So it's in the same passage.

[00:14:11] Speaker 03:
Don't interrupt me.

[00:14:13] Speaker 03:
I'm sorry.

[00:14:13] Speaker 01:
You're wrong factually.

[00:14:15] Speaker 01:
However, I think the part that helps you is the fact that it says, moreover, to me, that implies they're saying, and now I have another argument for why Gupta is different, that is different from the one I just made.

[00:14:27] Speaker 03:
That's how I understand it.

[00:14:28] Speaker 03:
A hundred percent.

[00:14:30] Speaker 03:
And what I was trying to say was, when I referred to the passage I was about to speak, I was referring to the entire paragraph, and I was going to make the point you exactly just made, that there are other points

[00:14:40] Speaker 03:
exactly in there where they do reference smooth switching, but certainly not in those first couple of sentences.

[00:14:45] Speaker 03:
I agree with you exactly on that point.

[00:14:50] Speaker 03:
They also make the point... Well, on this it's really not... it's not even relevant anymore.

[00:14:59] Speaker 03:
Now we've talked about that already in terms of the whole discussion, but the judge... I understand it, but I just want to make the point that the judge

[00:15:09] Speaker 03:
took that long passage, which he broke into four separate categories.

[00:15:14] Speaker 03:
And he pointed out how each one, as Judge Moore pointed out, was a different argument as to distinguishing over Gupta.

[00:15:20] Speaker 03:
And with that, I will set up.

[00:15:21] Speaker 03:
If you have any questions about the sanctions, we're happy to rest on our brief on that.

[00:15:24] Speaker 03:
I think the cases are clear that you can indeed grant sanctions.

[00:15:30] Speaker 03:
It wasn't just for a second deposition.

[00:15:32] Speaker 03:
It was because of a belated production of documents, as was stated in the facts, that required a second deposition.

[00:15:38] Speaker 03:
And the single case they cite from the Seventh Circuit on that point was, in fact, didn't deal with the question of whether sanctions could be granted against the party.

[00:15:49] Speaker 03:
In that particular case, the only thing that was reversed was and challenged in the first place was whether they could grant the sanctions against the lawyer.

[00:15:57] Speaker 03:
The sanctions against the party were not even challenged and they were upheld.

[00:16:00] Speaker 04:
Well, having been a trial judge for 16 years, I always thought I had, in addition to inherent powers,

[00:16:05] Speaker 04:
gave an awful lot of leeway.

[00:16:07] Speaker 04:
Yes, under ANC, I agree.

[00:16:09] Speaker 04:
Thank you.

[00:16:10] Speaker 04:
Thank you, Your Honor.

[00:16:12] Speaker 02:
We will save your time for a bottle if you need it.

[00:16:15] Speaker 02:
Mr. Greensboro.

[00:16:17] Speaker 00:
Thank you, Your Honor.

[00:16:19] Speaker 00:
What we heard from Mr. Pivane in the very beginning of his remarks is he recharacterized that first sentence from the passage as saying, quote, it, meaning Gupta, has got the same audiovisual content.

[00:16:31] Speaker 00:
But that's not what the passage says.

[00:16:33] Speaker 00:
The passage actually points out that there are different streams in Gupta, just the same as the invention.

[00:16:38] Speaker 00:
And again, I come back to my main argument.

[00:16:40] Speaker 00:
It's not a point of distinction they were making to say even the word completely different streams, because they are completely different streams in Gupta.

[00:16:48] Speaker 00:
Paragraph 96 of Gupta says that.

[00:16:50] Speaker 00:
Also, when quoting that passage from the file history, what we just heard is that my brother ended the sentence he was quoting at completely different streams, full stop, period.

[00:17:01] Speaker 00:
But this passage actually goes on without alterations to the video or audio.

[00:17:07] Speaker 00:
And finally, Judge Moore, in response to your observation about the word moreover, we address this in our reply brief at page six.

[00:17:14] Speaker 00:
And we showed that moreover, an accepted use of that terminology is for introducing an additional and important fact that supports or emphasizes what you have just said.

[00:17:23] Speaker 01:
Well, see, I read this very clearly as adding another reason to support or emphasize that Gupta should not result in the rejection here, but not a reason that is the same as the prior reason.

[00:17:36] Speaker 01:
I don't see smooth switching, which is in the moreover sentence, as being what's being talked about in the first few sentences.

[00:17:42] Speaker 00:
Yeah, I understand, Your Honor, and that is how the district court viewed it as well.

[00:17:46] Speaker 00:
The only final request I would make of the panel is to see how the paragraph actually ends.

[00:17:53] Speaker 00:
And if you review, what's interesting to me is the district court did not, I believe it did not, quote the final sentence of the paragraph.

[00:18:01] Speaker 00:
And the final sentence to me is, if there's a tiebreaker to resolve this ambiguity, it's the final sentence.

[00:18:10] Speaker 00:
Where in the record?

[00:18:11] Speaker 00:
This is the same page.

[00:18:12] Speaker 00:
It's 3462, I believe.

[00:18:19] Speaker 00:
I'm just going to read it and step down, but of course,

[00:18:22] Speaker 02:
And you're referring to, therefore, Cookler doesn't teach or suggest?

[00:18:25] Speaker 00:
It's the word, therefore, begins.

[00:18:27] Speaker 00:
Therefore, the reference doesn't teach or suggest the claim limitations.

[00:18:32] Speaker 00:
So the word, therefore, is the summation of all the sentences that have come before.

[00:18:38] Speaker 00:
And it's the wrap-up, which, to me, it resolves that all these really are talking about the same thing.

[00:18:45] Speaker 00:
Otherwise, what would alterations in the video or audio mean?

[00:18:49] Speaker 00:
We've never heard any position from either the district court or from BTN what switching without alterations could possibly mean other than some emphasis by the inventors in these remarks on the way we have smooth switching, which means the thrust of the comments, the group that doesn't have smooth switching.

[00:19:10] Speaker 00:
So unless there are any further questions, Your Honor, I apologize, one more point.

[00:19:15] Speaker 00:
There was no order on documents.

[00:19:18] Speaker 00:
in the discovery dispute in the district court.

[00:19:21] Speaker 00:
It's because the documents were produced before there was any need for a motion, any need for a court order.

[00:19:27] Speaker 00:
The only question before the district judge on it... At what point during the process?

[00:19:32] Speaker 00:
It was subsequent to the first deposition.

[00:19:34] Speaker 00:
So the first deposition... How much subsequent and how much prior?

[00:19:37] Speaker 00:
I believe about two weeks, within two weeks, maybe one week.

[00:19:44] Speaker 04:
30 days sticks in my mind, but I can think about it.

[00:19:47] Speaker 00:
Your Honor could be right.

[00:19:48] Speaker 00:
I didn't prepare for that question, but it was very, very soon after the deposition when they first made a request for the emails, particularly.

[00:19:56] Speaker 00:
The emails were produced.

[00:19:57] Speaker 00:
So it was never before the district court that it had to decide whether there should be an order to compel documents.

[00:20:02] Speaker 00:
So that means that the actual request to the district court and the actual order granting the request to the district court was about a Rule 30 second deposition.

[00:20:11] Speaker 00:
And that's where our argument lies.

[00:20:13] Speaker 02:
Thank you, counsel.

[00:20:14] Speaker 02:
We'll take the case under review.

[00:20:16] Speaker 00:
Thank you.