[00:00:03] Speaker 04:
Our final case this morning is number 18-1690, iRobot Corporation versus ITC.

[00:00:43] Speaker 04:
Okay, Mr. Jay.

[00:00:47] Speaker 06:
Good morning, Your Honors.

[00:00:47] Speaker 06:
May it please the court, William Jay from Lewin Proctor for iRobot.

[00:00:51] Speaker 04:
Are you familiar with our decision in Jang versus Boston Scientific?

[00:00:59] Speaker 04:
The reason I ask is, for the life of me, I can't understand the claim construction issue here because I can't understand what the accused product is.

[00:01:13] Speaker 04:
And in order to arrive at a proper claim construction, there really needs to be some context.

[00:01:19] Speaker 04:
What happened in Zhang is that we had a situation like that where you couldn't tell what the underlying infringement is.

[00:01:29] Speaker 04:
So you couldn't really understand how to construe the claims.

[00:01:33] Speaker 04:
And one of the grounds for refusing to entertain the case and sending it back

[00:01:39] Speaker 04:
was that without that context the issue was just abstract.

[00:01:43] Speaker 04:
So that seems to be somewhat the problem here because I have a very difficult time figuring out what the meaning of this claim construction is and how it applies to the accused product.

[00:01:59] Speaker 04:
So what's the response to that?

[00:02:00] Speaker 06:
The response to that I think is to look at the

[00:02:03] Speaker 06:
relevant paragraphs of the summary determination that followed the claim construction, because the case is here.

[00:02:09] Speaker 01:
Yes, and I did that.

[00:02:11] Speaker 01:
But what I found was a reference to the statement of undisputed facts, where from all I could tell from looking at the ALJ's opinion, one would find the context within which this case is ultimately to be decided.

[00:02:28] Speaker 01:
But of course, in our appendix, we don't have the statement of undisputed facts.

[00:02:33] Speaker 01:
Uh, at least I didn't find it and I looked, uh, and I went to the website to see if I could pull up the statement of undisputed facts and it wasn't there.

[00:02:43] Speaker 01:
So, or at least it wasn't available.

[00:02:46] Speaker 01:
So, um, could you provide us with the statement of undisputed facts and would the statement of undisputed facts tell us what the accused product, uh, is and how it operates?

[00:02:58] Speaker 06:
So yes, we can provide that to the court.

[00:03:00] Speaker 01:
Well, would it help us with Judge Dyke's question?

[00:03:03] Speaker 01:
Because I had exactly the same question.

[00:03:05] Speaker 06:
Now, I'm not sure that it would, because I think that the Statement of Undisputed Facts, for purposes of this motion just by these parties on this issue following the claim construction, I think that produced the 10 findings by the ALJ in the summary determination.

[00:03:20] Speaker 01:
But those findings don't tell us very much about what the accused product

[00:03:26] Speaker 01:
how it operated, do they?

[00:03:28] Speaker 06:
No, I think that that's fair.

[00:03:29] Speaker 06:
What they do tell you is what the dispute turned on, that the reason that the other side was pushing for the construction that the ALJ adopted was that the accused products don't transmit configuration information.

[00:03:45] Speaker 06:
They don't transmit a software program or machine executable code.

[00:03:50] Speaker 04:
What do they transmit?

[00:03:52] Speaker 06:
I expect that they transmit scheduling information.

[00:03:59] Speaker 04:
That's the problem here.

[00:04:02] Speaker 04:
You're just repeating the language that the parties have been disputing without really telling us what's going on.

[00:04:11] Speaker 04:
Why shouldn't we send this back and say, we're not going to decide this case?

[00:04:16] Speaker 04:
in the abstract here, we need to know what's going on.

[00:04:19] Speaker 04:
And you better tell us what's going on if you want us to rule on the claim construction.

[00:04:24] Speaker 06:
Well, if the court can't rule on the claim construction, we certainly would prefer that it do that rather than affirm.

[00:04:31] Speaker 06:
I do think that it would be important to tell the court that it's the claim construction, not just the summary determination that's being set aside for inadequate explanation.

[00:04:42] Speaker 06:
I don't think we would have an objection to that.

[00:04:44] Speaker 06:
We think that there are certain errors that are discernible on the face of the ALJ's decision.

[00:04:53] Speaker 06:
And if the court doesn't feel prepared to rule based on the record before it, I don't think we have an objection to sending it back.

[00:05:01] Speaker 01:
Is there anything in the record that was before the ALJ that would tell us were we to get a hold of that record?

[00:05:10] Speaker 01:
of the information that we would need to know exactly how the accused product works.

[00:05:16] Speaker 06:
So there's been an entire proceeding before the commission.

[00:05:20] Speaker 06:
This is just one patent in a multi-patent investigation.

[00:05:24] Speaker 06:
And so there is a much larger record about the accused products, the other patents, our infringement contentions, invalidity, and so forth.

[00:05:34] Speaker 01:
Because when you say, well, it sends scheduling information,

[00:05:40] Speaker 01:
doesn't help me because I want to know exactly what this information consists of.

[00:05:45] Speaker 01:
Is it code, computer readable code?

[00:05:51] Speaker 01:
Is it a beep that's sent with, for example, a radio frequency signal?

[00:05:56] Speaker 06:
I think I would describe it as data, but not code.

[00:06:00] Speaker 01:
Data is so general a term that that's like saying it's a signal.

[00:06:05] Speaker 06:
But to describe it as code, if it were code,

[00:06:09] Speaker 06:
then we wouldn't be here because the other side wouldn't have proposed that construction and we would be arguing that they infringe under it.

[00:06:17] Speaker 06:
Because the construction that was adopted includes machine executable code.

[00:06:21] Speaker 06:
And so it's not that, but I think the way I would explain it is that when you have a properly configured robot, the robot has on it all of the code necessary to perform the cleaning operation when it's told

[00:06:35] Speaker 06:
what time to do that and what room to do it in or how much of the room to clean and so on.

[00:06:41] Speaker 06:
So the information that's transmitted in order to complete the robots, to give the robot the final instructions is what time to clean and how much of the room to clean.

[00:06:54] Speaker 06:
There could be other settings as well.

[00:06:57] Speaker 06:
That may not be machine executable code, but it certainly is an instruction and it is

[00:07:03] Speaker 06:
it causes the processor of the robot to execute the cleaning operation.

[00:07:08] Speaker 06:
Now, we would have to prove, in proving infringement as a fact question, we'd have to prove that the instructions transmitted to the robot and the accused products do, in fact, cause the processor to perform the cleaning operation.

[00:07:23] Speaker 06:
That would be a burden we'd be happy to shoulder.

[00:07:26] Speaker 06:
But the reason that they don't infringe and the reason we didn't oppose their summary determination is that the accused products don't infringe

[00:07:33] Speaker 06:
if you narrowly read the word instructions to include... Why is this even patentable?

[00:07:40] Speaker 06:
Why is it even eligible for a patent?

[00:07:45] Speaker 06:
So, of course you'll understand if I say that's not before the court.

[00:07:50] Speaker 06:
Well, maybe.

[00:07:51] Speaker 06:
I think it could not be before the court on a decision from the ITC.

[00:07:56] Speaker 04:
Is there a defense of invalidity that's asserted before the ITC?

[00:08:03] Speaker 06:
In all of the, throughout the investigation, there are a number of invalidity arguments.

[00:08:07] Speaker 06:
As to this patent.

[00:08:08] Speaker 06:
As to this patent, I'm not sure of the answer to that because this is, after Markman, the proceedings as to this patent ended with this summary determination.

[00:08:20] Speaker 02:
But you said eligibility is not appropriate in the ITC?

[00:08:23] Speaker 06:
No, no, no.

[00:08:24] Speaker 06:
I'm saying that on this appeal from the agency on a summary determination of non-infringement.

[00:08:31] Speaker 02:
But it could have been.

[00:08:32] Speaker 06:
Oh, yes.

[00:08:33] Speaker 06:
I'm not disputing that.

[00:08:38] Speaker 06:
Or in the related district court litigation, sure.

[00:08:41] Speaker 02:
And it's a matter of law.

[00:08:43] Speaker 06:
It is a matter of law that has not been decided in this case.

[00:08:46] Speaker 06:
But let me answer the question.

[00:08:49] Speaker 06:
Here you have a method that refers to actual

[00:08:55] Speaker 06:
you know, an actual tangible product refers to both the robot and a particular mobile phone.

[00:09:02] Speaker 06:
And it gives you the method of uniting in one device, you know, the means of configuring the robot or transmitting schedule information.

[00:09:14] Speaker 04:
So your theory is that the transmission of an instruction clean now is an infringement.

[00:09:22] Speaker 06:
The transmission of an instruction clean now, so it has to be in response to a user input at the mobile phone.

[00:09:31] Speaker 04:
Yeah, but a mobile phone transmitting an instruction clean now is an infringement.

[00:09:36] Speaker 04:
Yes, it could be.

[00:09:37] Speaker 04:
Okay, so that's the problem then in terms of validity is to, with a claim construction that broad.

[00:09:48] Speaker 06:
So I think it would help if we went

[00:09:50] Speaker 06:
Back to the wording of the claims, because a couple of things.

[00:09:58] Speaker 06:
So the independent claims here, claim one, claim 12, slightly different wording.

[00:10:01] Speaker 06:
But what we're talking about is instructions that cause the processor to carry out a cleaning operation, not just any cleaning operation, but a cleaning operation that reflects the schedule that's implemented through the mobile device by the user.

[00:10:21] Speaker 06:
where the ALJ, I think, went.

[00:10:23] Speaker 04:
Robotic cleaning devices were well-known at the time of this priority date for this patent, right?

[00:10:31] Speaker 06:
Yes, that's right, that they were cleaning robots at the time.

[00:10:36] Speaker 06:
The innovation in this case is the ability to use a single handheld device to control... To tell it to start cleaning?

[00:10:46] Speaker 06:
No, no, but not just that.

[00:10:48] Speaker 06:
to preprogram and to also to update the robot's programming or potentially to control the robot.

[00:10:54] Speaker 01:
But this claim doesn't require preprogramming.

[00:10:57] Speaker 01:
That's your whole argument.

[00:10:58] Speaker 06:
That's right.

[00:10:59] Speaker 01:
But all this claim requires is that you signal to the robot something that compels the robot to clean according to a schedule.

[00:11:12] Speaker 06:
To the schedule that the user enters the input.

[00:11:16] Speaker 01:
That the user selected.

[00:11:18] Speaker 01:
If there's a schedule, let's suppose the default schedule in the robot is clean every 12 hours.

[00:11:25] Speaker 01:
And that's built into the robot.

[00:11:27] Speaker 01:
And what I have is, let's say, a fob, like my key fob for my car, which when I punch that, it tells the robot to go ahead and start the 12-hour cycle cleaning now.

[00:11:43] Speaker 01:
That infringes, according to your theory, as I understand it.

[00:11:46] Speaker 06:
It would not, Your Honor, because it's not, first of all, it's not a mobile phone.

[00:11:49] Speaker 01:
No, I put it, OK.

[00:11:51] Speaker 01:
I put the clicker onto my mobile phone.

[00:11:54] Speaker 06:
So if you send a message saying, start the 12th.

[00:11:56] Speaker 01:
It's just a click.

[00:11:57] Speaker 01:
It's just a click on the mobile phone.

[00:12:01] Speaker 06:
Yeah, that could infringe if it causes the processor to.

[00:12:05] Speaker 04:
Could or would?

[00:12:08] Speaker 06:
As I understand Judge Brason's question, I think that it probably would.

[00:12:12] Speaker 06:
I'm not seeing a reason why it wouldn't accept the mobile phone point that I made.

[00:12:16] Speaker 06:
But so if I could, I'd like to sort of get back to where the ALJ, how the ALJ construed these claims, because the ALJ found some redundancy, and this kind of goes to the point that Judge Bryson's question is getting at.

[00:12:32] Speaker 06:
The ALJ found a sort of redundancy between the, and said why would there be instructions about the schedule in what the, in the input, and then why would the instructions to the robot then again include the scheduling information?

[00:12:45] Speaker 06:
The ALJ just simply misread the claims.

[00:12:48] Speaker 06:
I think that you can see that most clearly.

[00:12:51] Speaker 06:
So you misread claim one.

[00:12:53] Speaker 06:
If I could, I'd like to take the court to the second paragraph of the claim.

[00:13:00] Speaker 06:
In response to an operator command input at the mobile phone and at least in part indicative of the schedule.

[00:13:05] Speaker 06:
So that's two adjectival phrases, at the mobile phone and at least in part indicative of the schedule.

[00:13:10] Speaker 06:
And the ALJ read it so that the first part modifies the word comes before.

[00:13:14] Speaker 06:
And the second part modifies the word that comes after instructions.

[00:13:18] Speaker 06:
We think that's wrong, and that the correct reading of it is that both of those adjectives modify what comes before user command input.

[00:13:24] Speaker 06:
And so because the user command has put in information that tells you what schedule to follow, then what makes the claim work, what makes the robot clean according to that schedule, because the claims then say three times the schedule, the schedule, the schedule, not just any schedule, but the schedule input by the user.

[00:13:45] Speaker 06:
What makes the robot clean according to that schedule has to be the transmission of information that tells it to clean according to that schedule.

[00:13:52] Speaker 06:
The ALJ's construction, my friends on the other side are advancing a construction that says that's totally optional.

[00:13:58] Speaker 06:
What's required is that you then, is that you send what we call configuration information, information that configures the robot.

[00:14:05] Speaker 06:
It reprograms the robot, updates the software, puts new software on it, which is not necessary.

[00:14:11] Speaker 06:
And I think that's most clearly shown it not to be necessary.

[00:14:14] Speaker 06:
by Figure 7, which has the block drawing, which says, configuration information not necessary if the robot is already configured.

[00:14:22] Speaker 06:
What makes the robot clean according to the schedule is the transmission of scheduling information.

[00:14:26] Speaker 01:
I'm unclear what exactly the claim construction that was adopted by the ALJ means with respect to the reference not to software program, which I understand.

[00:14:41] Speaker 01:
But what is the minimum

[00:14:44] Speaker 01:
required, in your view, by the term machine executable code.

[00:14:50] Speaker 01:
Because I found that, in this context, to be a somewhat ambiguous term.

[00:14:57] Speaker 06:
What's the minimum required to meet it?

[00:14:59] Speaker 06:
Yeah.

[00:15:00] Speaker 06:
And I certainly understand why the court would think that more factual context would be helpful in assessing that information.

[00:15:07] Speaker 01:
Because I think when I read it, at least, just to give you an idea of where I'm coming from here,

[00:15:13] Speaker 01:
When I read that, I'm not seeing the same thing as downloading an application or downloading a program.

[00:15:21] Speaker 01:
I'm seeing something much more minimal.

[00:15:24] Speaker 01:
And so what do you think is intended by machine executable code?

[00:15:30] Speaker 06:
We take it to mean lines of programming.

[00:15:35] Speaker 04:
Source code.

[00:15:36] Speaker 06:
I think it would not necessarily have to be source code.

[00:15:39] Speaker 06:
It doesn't necessarily have to be in machine language.

[00:15:43] Speaker 06:
So a program in C might qualify, but here's the distinction I might draw.

[00:15:49] Speaker 06:
So if you have a spreadsheet, machine executable code tells the computer how to load a spreadsheet and how to perform functions that are based on the data put into the spreadsheet.

[00:16:04] Speaker 06:
What would not be machine executable code is the users entering data into the individual cells of the configured spreadsheet.

[00:16:11] Speaker 01:
But would machine executable code be equivalent to, at the minimum, a signal from the phone to the processor that the processor could understand?

[00:16:27] Speaker 01:
and act upon.

[00:16:28] Speaker 06:
No, I don't think so.

[00:16:30] Speaker 01:
And what's the difference between that and what your concept of machine executable code is?

[00:16:36] Speaker 01:
Because that's where I'm having trouble.

[00:16:37] Speaker 06:
And I think that's exactly the right place to focus it, because all we want in our construction is to allow an instruction with some scheduling information in it that goes to the processor and can be understood by the processor and can cause the processor to carry out the cleaning operation.

[00:16:52] Speaker 06:
That's what we want this claim to be read as.

[00:16:54] Speaker 06:
So the machine executable code limitation read in by the ALJ, not based on anything at all in the intrinsic record, not even based on the dictionary that was cited in the briefing below.

[00:17:06] Speaker 06:
So to be clear, the dictionary itself does not use this machine executable code language in the dictionary definition.

[00:17:12] Speaker 04:
Anything that triggers the cleaning program that's in the robot would

[00:17:22] Speaker 04:
qualify.

[00:17:24] Speaker 01:
If it has a scheduling component either in the message or that is interpreted, where the message is interpreted by the robot as scheduling?

[00:17:34] Speaker 06:
Well, specifically by the processor in the robot.

[00:17:36] Speaker 06:
Well, OK.

[00:17:37] Speaker 06:
That's right.

[00:17:38] Speaker 06:
And I think that the processor is there performing that function to make it clear that this is the tangible machine on which this instruction is operating.

[00:17:46] Speaker 06:
But yes, an instruction that can be understood by the processor and that causes the processor

[00:17:52] Speaker 06:
to carry out the cleaning operation.

[00:17:54] Speaker 01:
And so machine executable code is more complex than simply an instruction that's understandable by the processor.

[00:18:02] Speaker 01:
How?

[00:18:03] Speaker 06:
I think because if the processor is already configured and is waiting only for a datum that says what time to start, as opposed to a series of instructions that tell it what to do when it's told to begin cleaning, that's the difference that we see.

[00:18:22] Speaker 06:
If all that's transmitted is, for example, day, date, and time, to use the phrase from the specification, that would be scheduling information.

[00:18:32] Speaker 06:
We think that that is covered by the claims.

[00:18:34] Speaker 06:
It's exactly the kind of thing that the user would be inputting into the mobile phone in order to have the robot at some time in the future.

[00:18:41] Speaker 01:
But you say it wouldn't be machine executable code, even if it was transmitted in a language that was specifically directed to the processor's

[00:18:51] Speaker 01:
understanding and implementation.

[00:18:53] Speaker 06:
Yes, I think that that's right.

[00:18:55] Speaker 06:
That's our understanding of why under the ALJ's construction, we did not oppose the summary determination of non-infringement.

[00:19:03] Speaker 06:
Whereas if you took that artificial limitation out of the claim construction and you really just went back to the language of the claim and said, instructions that could be understood by the processor that caused the processor to carry out this operation, we would not have conceded

[00:19:18] Speaker 06:
non-infringement, we would have a good infringement case and that we would be proving the causation through the process as a factual matter, but that's an obligation that we would embrace.

[00:19:28] Speaker 04:
Okay.

[00:19:28] Speaker 04:
All right, we're out of time.

[00:19:29] Speaker 04:
We'll give you two minutes for rebuttal.

[00:19:31] Speaker 04:
Thank you.

[00:19:35] Speaker 04:
Mr. Trout, is that how you pronounce it?

[00:19:37] Speaker 00:
I pronounce it tried, but I think that's correct.

[00:19:42] Speaker 04:
Tried, okay.

[00:19:47] Speaker 00:
May I please support?

[00:19:50] Speaker 00:
When you look at what the claims actually say, the only reasonable objective conclusion is that instructions in connection with a processor has its ordinary meaning in the field.

[00:20:01] Speaker 00:
The claim language does not support the connection that iRobot wishes was in the claims.

[00:20:06] Speaker 00:
Claim construction is in objective analysis.

[00:20:09] Speaker 00:
Is there an invalidity issue in this case?

[00:20:12] Speaker 00:
I know it's not before us.

[00:20:14] Speaker 00:
It's not before us, but certainly does seem abstract.

[00:20:17] Speaker 00:
That could be an alternative basis for affirming the commission, but I'm not prepared to address 101 law.

[00:20:24] Speaker 04:
Well, but I'm not asking you to address it.

[00:20:28] Speaker 04:
I'm saying, is there an issue before the commission if the infringement hurdle is overcome as to invalidity?

[00:20:41] Speaker 00:
I don't recall what issue, what invalidity.

[00:20:43] Speaker 00:
You don't know whether there's an invalidity issue.

[00:20:45] Speaker 00:
Okay.

[00:20:45] Speaker 00:
I just don't recall what was raised.

[00:20:48] Speaker 00:
The intervener might be in a better position.

[00:20:51] Speaker 00:
So claim construction is an objective analysis, and iRobot's word choice matters here.

[00:21:00] Speaker 00:
The commission's construction is based on objective evidence.

[00:21:04] Speaker 00:
First and most importantly, it is based on iRobot's choice of using instructions, a term meaningfully used only in the claims.

[00:21:14] Speaker 00:
Second is confirmed by how instructions is used in the context of the surrounding claim language.

[00:21:19] Speaker 00:
It is also confirmed by the specification.

[00:21:22] Speaker 00:
The disputed phrase here is information comprising instructions configured to cause a processor of the cleaning robot to perform a cleaning operation.

[00:21:31] Speaker 00:
We're here to consider constructions, which is just one part of the claimed information.

[00:21:37] Speaker 00:
First, and I think most importantly to this case, the commission's construction is supported by iRobot's choice of the word instructions.

[00:21:44] Speaker 00:
When you draft claims, you can choose to use a term that is defined by the specification, or you can use a term that's defined elsewhere.

[00:21:52] Speaker 00:
Here, the patentee did not use instructions in the relative context in the specification.

[00:21:58] Speaker 00:
Therefore, it must have relied on something elsewhere.

[00:22:01] Speaker 01:
Well, suppose, to go back to Judge Dyke's question, suppose the whole system was programmed so that if you punch into your phone clean now, the machine

[00:22:14] Speaker 01:
interprets that sensibly enough to mean start cleaning.

[00:22:18] Speaker 01:
And that's the schedule on which it is to operate.

[00:22:21] Speaker 01:
And it goes ahead and cleans.

[00:22:22] Speaker 01:
Would that infringe?

[00:22:24] Speaker 01:
Why isn't that an instruction to clean according to a schedule, i.e.

[00:22:29] Speaker 01:
now?

[00:22:29] Speaker 00:
Well, that wouldn't be according to a schedule, because the specification makes that.

[00:22:36] Speaker 01:
Clean every 12 hours.

[00:22:38] Speaker 01:
I punch it into my machine.

[00:22:40] Speaker 01:
That's a signal, and it's just

[00:22:43] Speaker 01:
in whatever language is comprehensible by the processor, is that an instruction within the meaning of this claim?

[00:22:54] Speaker 00:
Not within the meaning of this claim.

[00:22:56] Speaker 01:
Why?

[00:22:57] Speaker 00:
Because if you look at what the claims actually say, the claims do not, they're not met if you just transfer a schedule.

[00:23:03] Speaker 00:
And I think the example you gave is a schedule.

[00:23:06] Speaker 01:
Well, it's not just a schedule, it's a direction to

[00:23:11] Speaker 01:
start cleaning according to this schedule.

[00:23:14] Speaker 01:
I've given you both a schedule and an instruction to get going.

[00:23:19] Speaker 01:
Or clean in 30 minutes.

[00:23:23] Speaker 00:
The claims say instructions configured to cause a processor to clean according to a schedule.

[00:23:30] Speaker 01:
Isn't that just what I've done?

[00:23:33] Speaker 00:
What you've done is you've reduced all those words to simply the schedule.

[00:23:38] Speaker 01:
No, it's an instruction.

[00:23:40] Speaker 01:
Clean in 30 minutes.

[00:23:42] Speaker 01:
It has clean, an instruction to act, and 30 minutes, which is a schedule.

[00:23:48] Speaker 01:
Why isn't that enough?

[00:23:56] Speaker 00:
I think it's not enough because it renders a lot of the plain language superfluous.

[00:24:00] Speaker 00:
And this court has said that when you render a lot of plain language superfluous, that's not the correct instruction.

[00:24:05] Speaker 00:
And also, I think it's important that instructions here is used in a technical sense.

[00:24:09] Speaker 00:
I think you're describing

[00:24:10] Speaker 00:
a lay sense.

[00:24:12] Speaker 01:
Yeah.

[00:24:13] Speaker 01:
It's just not clear to me that there's anything in the specification that tells us that instructions has a special meaning in this context.

[00:24:24] Speaker 00:
Well, I think that claim construction begins with the claims.

[00:24:28] Speaker 00:
And in the context of the claims, I think that it does show that it's a technical meaning.

[00:24:34] Speaker 00:
I think that the claim uses instructions first in connection with the processor.

[00:24:41] Speaker 00:
And it uses the language to execute a cleaning operation.

[00:24:45] Speaker 00:
And these instructions are transmitted over a wireless communication link.

[00:24:48] Speaker 00:
I believe, in context, this is a technical term.

[00:24:52] Speaker 00:
And it's a technical term that's not otherwise used in the specification.

[00:24:56] Speaker 00:
So I think you have to look outside the specification to get guidance for the ordinary meaning.

[00:25:04] Speaker 00:
And that's what the AOJ did.

[00:25:07] Speaker 00:
So it's extremely unlikely the iRobot's construction is correct, because this iRobot offered for the construction of a term that's used over 50 times in the specification.

[00:25:17] Speaker 00:
And instructions is not used there.

[00:25:24] Speaker 00:
So the ALJ cited Thornor, CCS Fitness, and Epistar.

[00:25:28] Speaker 00:
And in those cases, this teach that to deviate from the ordinary meaning, a party must show a clear disavowal of that meaning.

[00:25:37] Speaker 01:
So the phone would need to download a program to the processor in order to infringe this claim?

[00:25:44] Speaker 04:
Yes.

[00:25:45] Speaker 04:
Which is something the specification contemplates could occur, right?

[00:25:50] Speaker 04:
Absolutely.

[00:25:59] Speaker 00:
The specification also teaches that the robot can clean according to previously scheduled

[00:26:05] Speaker 00:
for previously provided scheduling information.

[00:26:07] Speaker 00:
And you can see that in the appendix, even in the abstract.

[00:26:11] Speaker 00:
The abstract, this is APPX193.

[00:26:15] Speaker 00:
It declares a method of scheduling a robotic device to run autonomously based on previously loaded scheduling information.

[00:26:23] Speaker 00:
The specification says almost the same thing at APPX215.

[00:26:27] Speaker 00:
That's column 5, lines 52 through 54.

[00:26:30] Speaker 00:
And notably, the claims

[00:26:33] Speaker 00:
are not limited to a cleaning robot that does not have a previous loaded schedule.

[00:26:37] Speaker 00:
So I think that implies that the claims are open to the robot running on a previous loaded schedule.

[00:26:44] Speaker 04:
How many other proceedings before the ITC about other patents?

[00:26:48] Speaker 04:
Do they involve this same issue?

[00:26:50] Speaker 00:
No.

[00:26:50] Speaker 00:
Our appeals are on a patent by patent basis.

[00:26:53] Speaker 00:
And so this is the only issue before the ITC that was involved.

[00:26:58] Speaker 00:
These other patents don't involve the same issue?

[00:27:03] Speaker 00:
I'm almost positive they don't.

[00:27:08] Speaker 00:
But there are other patents that the patentee has expressly determined to use scheduling information.

[00:27:15] Speaker 00:
We cited one of those in our brief.

[00:27:17] Speaker 00:
And there's another pending application that uses that same language.

[00:27:20] Speaker 01:
So in your view, if this claim read exactly the same way as it does, but the word direction were substituted for the word instruction, then

[00:27:32] Speaker 01:
that would be an entirely different construction of the claim.

[00:27:42] Speaker 00:
So information including directions?

[00:27:48] Speaker 00:
I think yes.

[00:27:49] Speaker 00:
I think that if said directions, then you'd have to rethink

[00:27:59] Speaker 00:
It would just be different claims.

[00:28:01] Speaker 01:
Yeah, it would be different.

[00:28:03] Speaker 01:
But the question is, would it be materially and importantly different?

[00:28:07] Speaker 01:
What I'm trying to get at is, you seem to be pinning an awful lot of your case on the notion that the word instructions has to be used as a term of art, and that it completely changes the meaning from what I would assume you would agree that it would have if the word directions were there.

[00:28:24] Speaker 01:
But if I'm wrong in that assumption, then tell me.

[00:28:27] Speaker 00:
Well, I think our life.

[00:28:29] Speaker 00:
The claim language is, I think, the most important part in ensuring claims.

[00:28:33] Speaker 00:
But it's not just based on that.

[00:28:34] Speaker 00:
It's based on how instructions is used in context.

[00:28:45] Speaker 00:
If the patentee wanted it to say the schedule, it could have simply said the schedule.

[00:28:49] Speaker 00:
It didn't.

[00:28:49] Speaker 00:
Or it could have simply said scheduling information.

[00:28:57] Speaker 00:
It reads out the processor to read it how they want to read it.

[00:29:02] Speaker 03:
All right.

[00:29:03] Speaker 03:
I think we're out of time.

[00:29:04] Speaker 03:
Let's hear from Mr. Brown.

[00:29:15] Speaker 05:
May it please the court.

[00:29:17] Speaker 05:
I'll start by answering some of the questions that have been asked that I'm not sure you got answers to.

[00:29:22] Speaker 05:
So yes, there is an invalidity defense.

[00:29:23] Speaker 05:
We never got to it because of the way this unfolds.

[00:29:26] Speaker 05:
Yes, we have an obvious defense.

[00:29:30] Speaker 05:
But not 101?

[00:29:33] Speaker 05:
I believe that I don't recall for certain.

[00:29:36] Speaker 05:
I believe that's in there, but we have to go back and look at the pleadings.

[00:29:41] Speaker 05:
The closest we can come to giving you a description of how the products work, I believe, is in the complaint that was filed by the plaintiff, and they have detailed claim charge attached to the complaint.

[00:29:50] Speaker 05:
If you want us to submit that, I think that's the best document for us to submit.

[00:29:53] Speaker 02:
Before you leave the other stuff if they you had invalidity defenses and possibly 101 Why why isn't that why wasn't it addressed?

[00:30:07] Speaker 05:
Procedurally what happened is we the ALJ first did a claim construction Based on that claim construction hearing I wrote but agreed they couldn't prove Infringement and so we never reached any of the others

[00:30:20] Speaker 05:
issues.

[00:30:21] Speaker 05:
We didn't do depositions.

[00:30:22] Speaker 05:
There was no experts.

[00:30:24] Speaker 05:
All there was was the pleadings.

[00:30:25] Speaker 05:
I'm virtually certain that we pled 101, but I don't have it in front of me as a defense.

[00:30:33] Speaker 05:
So I don't want to make that representation, but I think it's likely.

[00:30:37] Speaker 05:
And we could submit the pleadings to you, and then you would know.

[00:30:39] Speaker 01:
Is there a way online to get that material, or is it just that?

[00:30:46] Speaker 05:
Yes.

[00:30:47] Speaker 05:
It's called EDIS.

[00:30:48] Speaker 05:
a login, an EDIS login.

[00:30:50] Speaker 01:
EDIS, how's that spelled?

[00:30:52] Speaker 05:
E-D-I-S.

[00:30:53] Speaker 01:
Okay.

[00:30:55] Speaker 05:
I don't actually remember the rest of the URL, but if you search EDIS, it's the public portal for accessing the ITC.

[00:31:02] Speaker 05:
Okay.

[00:31:02] Speaker 05:
Okay.

[00:31:04] Speaker 05:
And I think a good place maybe for me to start is with your question, Judge Bryson, about if it would make a big difference if it said directions instead of instructions.

[00:31:12] Speaker 05:
And I think it would not make a big difference.

[00:31:14] Speaker 05:
And the reason I think it wouldn't make a big difference is because

[00:31:17] Speaker 05:
we're not, at least from my perspective, the construction is not correct simply because of the word instructions.

[00:31:23] Speaker 05:
It's correct because of that entire phrase, the context that that takes place in the overall patent, and also because of claim 13, which uses the term scheduling information.

[00:31:35] Speaker 05:
I think the critical thing to understand about this patent is when you read through it, there is a consistent and repeated distinction between configuration information and scheduling information.

[00:31:46] Speaker 04:
What does your product do?

[00:31:47] Speaker 05:
Why is it alleged to in French?

[00:31:50] Speaker 05:
There's an application on a mobile phone.

[00:31:52] Speaker 05:
Yeah.

[00:31:53] Speaker 05:
The user can put in a schedule.

[00:31:55] Speaker 05:
And then that schedule will be transmitted to the robot.

[00:31:58] Speaker 05:
So like clean 12 o'clock today?

[00:32:01] Speaker 05:
Correct.

[00:32:02] Speaker 05:
12 o'clock tomorrow?

[00:32:03] Speaker 05:
Every Tuesday at 9.

[00:32:03] Speaker 05:
I don't know about every 12 hours, but along those lines, any one of those.

[00:32:08] Speaker 01:
OK.

[00:32:09] Speaker 01:
And that is not code, you say?

[00:32:14] Speaker 01:
Correct.

[00:32:14] Speaker 01:
even though it's a transmission of a signal in terms that the processor can understand?

[00:32:21] Speaker 05:
Correct.

[00:32:22] Speaker 05:
It's more like an API, right?

[00:32:23] Speaker 05:
It's more like the values in the spreadsheet, as capsule was pointing out.

[00:32:27] Speaker 05:
It's data that is transmitted in a format that can then be understood by the code running on the computer.

[00:32:34] Speaker 05:
I see.

[00:32:35] Speaker 05:
And so the key point, I think, is when you read this specification, there's a clear distinction between configuring and scheduling.

[00:32:44] Speaker 05:
And configuring is repeatedly described as the program on the computer or updating the program on the computer.

[00:32:51] Speaker 05:
And scheduling is 9 AM on Tuesdays, something along those lines.

[00:32:56] Speaker 05:
And so when you read these claims in that context, in the context of the specification, with this clear distinction between configuring and scheduling, and you see information including instructions configured to cause a processor of the robot to execute

[00:33:13] Speaker 05:
That, in this context, is talking about the computer code that's consistent with the word instructions.

[00:33:23] Speaker 05:
I think the word configured is probably the most important.

[00:33:27] Speaker 05:
The word cause, I think, is very important.

[00:33:28] Speaker 05:
Cause a processor of the cleaning robot.

[00:33:31] Speaker 05:
We've heard an argument that the schedule causes the processor of the cleaning robot.

[00:33:36] Speaker 05:
And I think that might be true in a but for sense.

[00:33:39] Speaker 05:
But it's certainly not true in a proximal sense.

[00:33:42] Speaker 05:
The proximal cause of the processor executing the cleaning operations is the code the processor runs that allows it to interpret the scheduling information.

[00:33:51] Speaker 05:
So when this claim says, cause a processor of the cleaning robot, you have to stretch that to turn that into a schedule.

[00:34:00] Speaker 05:
The clear, direct cause of the processor running the cleaning operations is the code that allows the processor to run the cleaning operations.

[00:34:11] Speaker 05:
And that conclusion that this phrase in claim one and in claim 12 refers to code is very much bolstered by the fact that in claim 13, there's an express reference to scheduling information.

[00:34:24] Speaker 05:
So if we were to follow iRobot's argument, we would be looking at claim 12, and we would have two extremely different phrases that mean the same thing.

[00:34:33] Speaker 05:
We would have, on the one hand, scheduling information, and on the other hand,

[00:34:37] Speaker 05:
information comprising instructions configured to cause a processor of the cleaning robot to perform operations, including executing a cleaning operation in the room according to the schedule.

[00:34:49] Speaker 05:
Those are very different phrases.

[00:34:50] Speaker 05:
They don't mean the same thing.

[00:34:52] Speaker 05:
And we don't know that just from the word instructions.

[00:34:54] Speaker 05:
We know it from instructions configured, probably most importantly, the word configured,

[00:35:00] Speaker 05:
and then the concept of causing a process.

[00:35:03] Speaker 04:
So do the other patents at issue in the ITC proceeding involve the same issue?

[00:35:08] Speaker 04:
No.

[00:35:08] Speaker 04:
Not at all.

[00:35:09] Speaker 04:
Nothing like this.

[00:35:11] Speaker 05:
They're very different.

[00:35:13] Speaker 05:
I believe the only remaining issue, we're no longer involved in, but I believe the only remaining issue is about a side brush on a robot.

[00:35:22] Speaker 05:
So the robot has to have a main brush with a vacuum, and a side brush that sweeps the dirt in front of them has nothing to do with this.

[00:35:33] Speaker 05:
But I think, so fundamentally, I think the thing that determines the result in this case is the context the specification provides about what configuration information is, what scheduling information is, and how they contrast.

[00:35:46] Speaker 01:
So you're reading the word configured to be a reference in effect back to configuration as it is used in the specification.

[00:35:57] Speaker 05:
So the specification doesn't just use configuration.

[00:35:59] Speaker 05:
I want to be clear about that.

[00:36:00] Speaker 05:
It uses the word configured repeatedly and consistently

[00:36:03] Speaker 05:
to refer to programming the robot or programming the processor, putting code into them.

[00:36:10] Speaker 05:
And it uses scheduling in a very different way.

[00:36:13] Speaker 05:
And I think I want to agree to some extent with something my robot said.

[00:36:18] Speaker 05:
There is a bit of a disconnect in this claim, what seems to be a bit of a disconnect, between the operator command input with the schedule and then the robot operating according to that schedule if there's no requirement of that transmission.

[00:36:34] Speaker 05:
There's sort of an initial question that you have when you read this claim.

[00:36:38] Speaker 05:
But what I think is important is the patent makes clear that you can do two things with this supposed invention.

[00:36:46] Speaker 05:
One is transmit configuration information.

[00:36:48] Speaker 05:
One is transmit scheduling information.

[00:36:50] Speaker 05:
You need to have both of them on the robot for the robot to work.

[00:36:55] Speaker 05:
But you don't need to transmit either of them if it's already on the robot.

[00:36:59] Speaker 05:
And I think it's a very simple and common circumstance

[00:37:03] Speaker 05:
If your phone downloads an update for the robot, and you look on your phone and you say, continue cleaning with the updated program according to the schedule, that would meet this claim.

[00:37:14] Speaker 05:
And what would happen is the updated cleaning program would be transmitted to the robot.

[00:37:20] Speaker 05:
I think it's probably fairly easy.

[00:37:21] Speaker 01:
But if you aren't updating the program and simply saying, implement the standard program already in there, which has a schedule already built into it, does that infringe

[00:37:33] Speaker 05:
under your construction.

[00:37:35] Speaker 05:
No, it does not.

[00:37:36] Speaker 01:
And that is because you are not configuring the instruction.

[00:37:41] Speaker 01:
You are simply sending an instruction using the term instruction in a different sense, in a more English sense.

[00:37:48] Speaker 01:
But it's really the word configured that you're focusing on more than the word instruction, it sounds like.

[00:37:54] Speaker 05:
I think the whole phrase.

[00:37:55] Speaker 05:
I think instruction is important.

[00:37:56] Speaker 05:
I think configured is more important than instruction.

[00:37:58] Speaker 01:
I think cause a processor is important.

[00:38:00] Speaker 01:
Well, cause a processor.

[00:38:01] Speaker 01:
I'm not sure.

[00:38:03] Speaker 01:
follow you on that because if I again have a well either a key fob or a phone key fob and I hit it and it said yes clean I'm causing the cleaning yes I mean I am the principal cause of the cleaning everything else is just mechanics I mean the proximal cause of the cleaning there I let's look at the claim because the claim tells us more right it tells us what has to happen it says

[00:38:30] Speaker 05:
Executing the cleaning operation in the room according to the schedule comprises leaving a stationary charging device at which the cleaning device is docked according to the schedule and navigating about a floor surface of the room.

[00:38:44] Speaker 05:
So I don't think that your button press there is causing this, I mean maybe in a distant but for sense, it's causing the navigating about the floor of the room.

[00:38:54] Speaker 05:
But what's causing the robot to navigate about the floor of the room

[00:38:57] Speaker 05:
is the instructions on the processor that tells it what to do.

[00:39:01] Speaker 05:
That was an issue in the other patents.

[00:39:03] Speaker 05:
There were some detailed claims about the algorithms that it uses in order to navigate effectively about the room.

[00:39:09] Speaker 05:
That's the code in the processor.

[00:39:12] Speaker 05:
That's not pressing a button.

[00:39:15] Speaker 04:
OK.

[00:39:15] Speaker 04:
Thank you, Mr. Brown.

[00:39:17] Speaker 04:
Mr. Jay, you've got a couple minutes.

[00:39:25] Speaker 06:
Thank you very much, Your Honor.

[00:39:27] Speaker 06:
So I think Judge Bryson's questioning has brought out that instruction, the other side presumes that instructions is used in a technical sense.

[00:39:34] Speaker 06:
And I think our fundamental submission is, no, it's not.

[00:39:37] Speaker 06:
And it's certainly not used in the technical sense that the ALJ distilled with this machine executed.

[00:39:44] Speaker 01:
What do you say about the congruence between the term configured as used in the claim and, as Mr. Brown argued, the way that term

[00:39:53] Speaker 01:
is used in specification.

[00:39:55] Speaker 06:
So I'd like to make two points about that.

[00:39:56] Speaker 06:
So one is about configuration information, because I do agree, and this is best seen at the bottom of column 11, the top of column 12, and the corresponding figure 7.

[00:40:05] Speaker 06:
that configuration information is a different category of stuff than scheduling information, but the figure makes very clear that you don't have to transmit configuration information.

[00:40:18] Speaker 06:
It may already be installed.

[00:40:20] Speaker 06:
This is Figure 7?

[00:40:20] Speaker 06:
This is Figure 7, that's right, and it's discussed at the bottom of Column 11.

[00:40:23] Speaker 06:
But I want to make a broader point about the use of the word configuration, because the ordinary meaning of configuration is just to set up for operation in a particular way,

[00:40:31] Speaker 06:
And if you look throughout the specification, there are five examples just in column 10 of the patent alone.

[00:40:37] Speaker 06:
I think the best one is probably at column 10, line 32.

[00:40:41] Speaker 06:
Configuration is used throughout the specification.

[00:40:43] Speaker 06:
And it is just not correct to say that in every place configuration is used, it conveys some kind of electronic or software or technical meaning.

[00:40:52] Speaker 06:
Where it's talking about configuring the robot, that's true.

[00:40:55] Speaker 06:
Well, it's talking about configuration information.

[00:40:57] Speaker 06:
But there are lots of things ranging from a user input to a digital display that are configured, that are referred to throughout this patent as, you know, configured or configuration or being configured.

[00:41:08] Speaker 06:
And that configuration is just a relative arrangement of parts or elements.

[00:41:11] Speaker 06:
That is how we read this.

[00:41:13] Speaker 04:
And Mr. Brown, why don't we have to construe the claim?

[00:41:17] Speaker 04:
Why don't we have to reject your claim construction or reserve the validity of this path?

[00:41:23] Speaker 04:
Isn't it pretty clear that this patent would fall on obviousness grounds if your claim construction were adopted?

[00:41:30] Speaker 06:
No, I don't think that's correct, Your Honor.

[00:41:32] Speaker 06:
Why is that wrong?

[00:41:33] Speaker 04:
To answer that question, Your Honor, I think I have to get into a full description of the art and individual references, and I think this really... You described it earlier that the invention is sending instruction to start claiming.

[00:41:48] Speaker 04:
from a mobile phone to a robot.

[00:41:51] Speaker 04:
The robots existed before.

[00:41:53] Speaker 04:
They had cleaning schedules in them, and the idea is that this patent covers sending an instruction to start the cleaning schedule.

[00:42:02] Speaker 06:
That's not quite right, Your Honor.

[00:42:04] Speaker 06:
What's wrong with it?

[00:42:07] Speaker 06:
Let me just preface my answer by saying that all of this would be premature for the court to get into.

[00:42:11] Speaker 06:
Number one, on chennery grounds, and number two, just you don't have the

[00:42:16] Speaker 06:
the art before you as of the priority date, which I believe is 2004.

[00:42:21] Speaker 06:
But just to give you the basic answer of what I disagree with in your question is if you read the first couple of columns discussing the background of the invention, it discusses how robots could be programmed with user input on the robot, which is different from the type of advanced programming potentially combined with configuration information that could be done under this invention.

[00:42:45] Speaker 06:
from a single device.

[00:42:47] Speaker 06:
But in any event, as Mr. Brown said, that's something that if you reverse this claim construction, that could be asserted in the ITC.

[00:42:54] Speaker 06:
It can be asserted in the parallel district court litigation, which I also wanted to mention.

[00:42:58] Speaker 06:
That's been stayed pending the ITC, but that is another place, I suppose, to de-mask, to look at for

[00:43:06] Speaker 06:
if what you're looking at is something that you can get on the internet before we file the information that Mr. Brown and I both referred to.

[00:43:13] Speaker 01:
And you think that information, well, go ahead.

[00:43:17] Speaker 06:
There are allegations in the complaint in that case, I believe, about the way in which, about the accused product.

[00:43:24] Speaker 06:
And as Mr. Brown said, there's also the complaint in this case, which has a detailed claim chart.

[00:43:29] Speaker 01:
Which we have one page of, I think.

[00:43:31] Speaker 01:
Right.

[00:43:31] Speaker 06:
And if the court would like, you know, we the parties can jointly file something to supplement the problem.

[00:43:36] Speaker 02:
Is 101 in the district court?

[00:43:39] Speaker 06:
Because of the ITC investigation, Your Honor, the district court proceeding has stayed.

[00:43:43] Speaker 06:
I know, but is that in there?

[00:43:47] Speaker 06:
I don't think that the other side has answered yet, so that would be the time to assert that.

[00:43:51] Speaker 06:
to answer or move under rule 12.

[00:43:54] Speaker 06:
So it will be premature.

[00:43:55] Speaker 06:
But all of which to say, all of that could come later.

[00:44:00] Speaker 06:
The question I think that we want the court to answer is the question that the ITC determined, which is just that nothing can infringe this patent, no way, not possible, unless it has software program or machine executable code.

[00:44:14] Speaker 06:
That limitation is not in the claims.

[00:44:16] Speaker 06:
It is not in the specification.

[00:44:18] Speaker 06:
You can't get it out of processor for exactly the reason that Mr. Brown

[00:44:21] Speaker 06:
I think basically conceded.

[00:44:22] Speaker 06:
He said that, yes, in a sense, you can cause the processor to do all of those things.

[00:44:27] Speaker 06:
I think the words he used were, it can be understood by the processor.

[00:44:29] Speaker 06:
That's the whole point.

[00:44:31] Speaker 06:
And we will happily take on the obligation of proving as a factual matter that A causes B, that the instruction causes the processor to execute.

[00:44:40] Speaker 06:
And the defect in the ALJ's construction is that it precludes us from doing that, that even if the processor can understand the instruction, it's out because it's not machine executable code or a software program.

[00:44:52] Speaker 04:
basis submitted that concludes our session for this morning.