[00:00:12] Speaker 03:
The next case is MyMail v. Ouvoux and IAC Search and Media, 2018-1758.

[00:00:21] Speaker 03:
Mr. Buether?

[00:00:23] Speaker 03:
Your Honor, Mr. Good morning.

[00:00:30] Speaker 02:
May it please the Court?

[00:00:31] Speaker 02:
In this case, the District Court granted a motion for judgment on the pleadings dismissing MyMail's claim based upon the Alice on patentability

[00:00:42] Speaker 02:
The district court erred first and foremost because it failed to conduct a required construction of the claim term toolbar.

[00:00:50] Speaker 02:
The specification taught that this present invention referring to the toolbar has some unique properties and then went on to explain that the unique properties included a button bar that can be generated dynamically changed or dynamically updated via a pinger process

[00:01:12] Speaker 02:
or a moat script.

[00:01:14] Speaker 02:
And it is this pinger process, moat script limitation that is critical, I think, to the entire issue before you, because that is a limitation that applies to the entire invention and therefore was very material to determining what is the character of this invention in terms of the abstract idea.

[00:01:33] Speaker 01:
The claims themselves, the claims language, it seems to me that it does not require a pinger process.

[00:01:40] Speaker 02:
Well, the claim language, yes, does not include the Pinger process limitation, but the specification clearly taught that the invention, the present invention, does require the capability or ability to change or update the toolbar software using the Pinger process and the Modescript approach.

[00:02:04] Speaker 02:
This was the construction that the court found in the Eastern District of Texas.

[00:02:08] Speaker 01:
But you agree that there's nothing in the claims.

[00:02:10] Speaker 02:
No.

[00:02:10] Speaker 02:
This is one of those situations where the specification is definitional, as the PTAB found in the two IPR proceedings.

[00:02:19] Speaker 02:
And therefore, that definition specified and dictated in the specification, that limitation has to be applied to the invention as a whole.

[00:02:27] Speaker 02:
When you say the present invention,

[00:02:30] Speaker 01:
Unless there's some... That may be the case if the limitation is somehow claimed, if it's in the claims.

[00:02:35] Speaker 01:
But as you say, there's nothing in the claims here.

[00:02:39] Speaker 01:
That limitation, the Pinger limitation, is not referenced and it's not disclosed in the claim.

[00:02:45] Speaker 02:
Not directly, but the word toolbar, of course, is referenced throughout the claims and the specification teaches that the toolbar must include this capability.

[00:02:54] Speaker 01:
So why then would we read into the claims

[00:02:56] Speaker 01:
The Pinger Process.

[00:02:58] Speaker 01:
Why would we read into the claims of Pinger Process?

[00:03:02] Speaker 02:
Because the inventors expressly stated that the claimed toolbar, which is in all of the claims, has unique properties.

[00:03:11] Speaker 02:
And using the word the present invention, the toolbar has unique properties.

[00:03:15] Speaker 02:
Why didn't they write in the Pinger Process?

[00:03:17] Speaker 02:
Good question.

[00:03:18] Speaker 02:
I thought about that.

[00:03:19] Speaker 02:
I think that the language generating or updating with a Pinger Process mode script

[00:03:26] Speaker 02:
is a bit awkward.

[00:03:27] Speaker 02:
I mean, I'm speculating.

[00:03:28] Speaker 02:
I didn't draft the claims.

[00:03:29] Speaker 02:
But I think that the inventors used the specification to define the term toolbar as you're allowed to do.

[00:03:37] Speaker 02:
And that by necessity, you look to the specification to see what kind of a toolbar we're talking about.

[00:03:43] Speaker 02:
And the specification couldn't be clearer that the toolbar had to have the capability of updating or modifying a toolbar using this pinger process

[00:03:56] Speaker 03:
And so I think that probably, again, I'm speculating, but the reason... The specification says the PINGER entity may be part of the access service provider or it may be separate.

[00:04:06] Speaker 03:
It will be assumed to be part of the access service provider.

[00:04:11] Speaker 02:
Well, the PINGER can be anywhere within the system.

[00:04:16] Speaker 02:
It can be on the client side or on the server side, but wherever it is located, Figure 16, Figure 20,

[00:04:23] Speaker 02:
And the three-column description of the pinger process says one thing for certain, that the claimed toolbar must have the ability to be updated or modified using this pinger process and moat script.

[00:04:39] Speaker 02:
And this is not just a non-sword, if you will.

[00:04:43] Speaker 02:
The specification goes on for some length and detail about what this pinger process and moat script involves.

[00:04:50] Speaker 02:
So this is not a sleight of hand.

[00:04:52] Speaker 02:
of any sort, I think the inventors clearly intended to limit the claimed toolbar to a toolbar which has the ability to be updated using the pinger process.

[00:05:02] Speaker 02:
And rather than putting that long language in the body of the claim, use the definitional approach, which is proper to give meaning to that word toolbar.

[00:05:12] Speaker 02:
And as the, I'm sorry.

[00:05:13] Speaker 03:
Why doesn't the, why does the ping, how does the pinger process make this not abstract?

[00:05:19] Speaker 02:
Well, because what it does is it provides a non-generic, a non-conventional improvement in the way that toolbar data is updated.

[00:05:30] Speaker 02:
This is not a situation where the claiming is purely functional and it doesn't matter how you update the toolbar or modify it.

[00:05:37] Speaker 02:
We're just claiming the result, if you will.

[00:05:39] Speaker 01:
There's other ways to update a toolbar, correct?

[00:05:41] Speaker 02:
Well, there are.

[00:05:42] Speaker 02:
In fact, it wasn't the first time toolbars were being updated.

[00:05:46] Speaker 02:
But they did not involve this automatic dynamic process using the pinger, where once the internet device is connected to the server.

[00:05:54] Speaker 02:
See, that's your problem.

[00:05:57] Speaker 01:
There's other ways to update the toolbar.

[00:05:59] Speaker 01:
Yes.

[00:06:00] Speaker 01:
And what you argue is unique here.

[00:06:05] Speaker 01:
innovative as the Pinger process, but yet the claims don't claim the Pinger process?

[00:06:12] Speaker 01:
Well, they do.

[00:06:13] Speaker 02:
It has to.

[00:06:14] Speaker 01:
The accused... You've said no to my questions.

[00:06:17] Speaker 01:
The Pinger process is not claimed within the claims.

[00:06:21] Speaker 02:
Well, I guess maybe that's a semantical issue, but if the patent teaches

[00:06:29] Speaker 02:
that the word toolbar means that it must have these unique properties.

[00:06:32] Speaker 01:
Well, the written description may mention the Pinger process, but I was asking you and I'm talking about the claims themselves.

[00:06:41] Speaker 02:
The claim language does not mention the Pinger process, yes, but this court has on numerous times in claim construction narrowed the scope of a broader term by what the specification teaches it must have.

[00:06:57] Speaker 02:
And in this case,

[00:06:58] Speaker 02:
the specification is abundantly clear that the toolbar, as claimed, must have the ability to perform this updating or modifying using the PINGER process.

[00:07:09] Speaker 02:
So, I mean, there are many claims that require a capability, but that's not the only way it must be done.

[00:07:15] Speaker 02:
I mean, the Intel, other cases which involve this capability language.

[00:07:18] Speaker 02:
So, the fact that it can be done otherwise doesn't mean it's not a meaningful limitation.

[00:07:24] Speaker 02:
The bottom line, as the PTAB found, is that

[00:07:28] Speaker 02:
The toolbar has to have the ability to do it the pinger way.

[00:07:32] Speaker 02:
And it can do it other ways, but if it doesn't have that ability, then it doesn't infringe.

[00:07:37] Speaker 02:
But as long as it has that ability, it can meet that limitation.

[00:07:42] Speaker 02:
And that's the crux.

[00:07:43] Speaker 01:
Let me ask you a question about the function of the pinger process.

[00:07:47] Speaker 01:
Who or what enables that?

[00:07:50] Speaker 01:
The way I read the RIN description, it's the ISP.

[00:07:55] Speaker 02:
The server side is where it can be implemented, but the patent doesn't require it to be in one location.

[00:08:02] Speaker 02:
If you look at figures 20 and 16, the pinger, which is set forth as a separate entity, does not have to be part of the client side.

[00:08:11] Speaker 02:
It can be.

[00:08:11] Speaker 02:
It does not have to be part of the server side.

[00:08:13] Speaker 02:
It can be.

[00:08:14] Speaker 02:
So where the pinger is located, it can be in more than one location.

[00:08:20] Speaker 02:
It doesn't have to be at the ISP.

[00:08:23] Speaker 02:
at some other location.

[00:08:25] Speaker 02:
It doesn't specify that.

[00:08:26] Speaker 02:
But the limitation still exists.

[00:08:28] Speaker 02:
And so to address your concern, yes, the words don't exist in the claim language, but this court has frequently narrowed the scope of claim language when the specification says that has a special meaning.

[00:08:41] Speaker 02:
And therefore, that has to be read into the claim language by implication.

[00:08:46] Speaker 02:
So I believe that that's a proper limitation, as the Eastern District Court found of Texas and the PTAB.

[00:08:52] Speaker 02:
And at this pleading stage, the district court was acquired to either accept our proposed construction, which was not only plausible, but we believe correct, or do its own claim construction, at least to resolve this issue for ALOS purposes.

[00:09:09] Speaker 02:
The district court did not do that.

[00:09:11] Speaker 02:
The district court, for whatever reason, didn't address the claim construction issue.

[00:09:15] Speaker 02:
And that really was the flaw that led to the rest of the district court's opinion being erroneous.

[00:09:22] Speaker 02:
Because once you ignore that limitation, well, then the claim seems more abstract.

[00:09:27] Speaker 02:
But as I said, because this invention involved the improvement of a process for updating a toolbar, that was improving the functionality of the computer system and the server system.

[00:09:39] Speaker 02:
This is not merely using a computer as a tool doing its generic routine functions.

[00:09:45] Speaker 02:
It was not merely functional claiming without explaining how to get to the result of updating.

[00:09:50] Speaker 02:
It provided a very specific way that had to be, the capability had to be there with significant technological details about what this PINGR process involved.

[00:10:00] Speaker 02:
It had to have a heartbeat service, it had to have an authentication service, and it also had to have the updating service.

[00:10:08] Speaker 02:
So this was not merely updating software or toolbar software,

[00:10:12] Speaker 02:
by whatever means you choose.

[00:10:14] Speaker 02:
Even the district court recognized that, quote, the focus of the claims is on the process by which the toolbar is updated, close quote.

[00:10:23] Speaker 02:
District court was actually right on that, but where the district court erred was ignoring the Pinger process limitation, which meant it was not just any process, it was this specific process that the capability had to be there.

[00:10:36] Speaker 02:
And so when the district court

[00:10:39] Speaker 02:
I hate to use the word ignored, but didn't address the pinger process limitation, then its analysis kind of collapses like a house of cards.

[00:10:49] Speaker 02:
Because once you acknowledge that this is not merely directed at updating software, but it's directed at updating software in a very particular way, that's not an abstract idea.

[00:11:00] Speaker 02:
And then even if one were to characterize the patent as directed to something more high level and general,

[00:11:07] Speaker 02:
The Pinger process limitation, I think, clearly supplies the inventive concept necessary to satisfy step two of the Mayo test.

[00:11:16] Speaker 02:
Once again, this is a problem rooted in computer technology, automatically dynamically updating software, and it's a solution that is technological in nature.

[00:11:27] Speaker 02:
And these claims, as limited, involve a specific and unconventional application

[00:11:34] Speaker 02:
of updating a toolbar and not just any method.

[00:11:39] Speaker 02:
And there is simply nothing in the record to show that the Pinger process is something that was well understood or routine or conventional at the time of this invention.

[00:11:50] Speaker 02:
And remember, this invention was conceived in 1997 at the very infancy of the internet and these types of systems.

[00:11:58] Speaker 02:
This court says that the affirmative defense in this situation, basically the patent has to conclusively concede the routineness or that it's well understood, whatever process is being claimed.

[00:12:17] Speaker 02:
There is nothing in the patent that suggests that the Pringer process was routine.

[00:12:22] Speaker 02:
In fact, it says just the opposite.

[00:12:24] Speaker 02:
It says it's got unique properties of this nature.

[00:12:27] Speaker 03:
Council, you wanted to say something?

[00:12:29] Speaker 02:
I will.

[00:12:29] Speaker 02:
I'm already admitted into my rebuttal, so I'll thank you for reminding me.

[00:12:33] Speaker 02:
Thank you.

[00:12:35] Speaker 03:
Mr. Hales?

[00:12:44] Speaker 00:
Thank you, and may it please the court.

[00:12:47] Speaker 00:
We have a very different view of the district court proceedings than MyMail does.

[00:12:50] Speaker 00:
MyMail never asked the district court to apply a claim construction for toolbar.

[00:12:54] Speaker 00:
in its pleadings.

[00:12:55] Speaker 00:
If you look at Appendix 738, they summarized the claims for the court on Alice Step 1.

[00:13:02] Speaker 00:
They said that modifying the toolbar data over a network by adding a toolbar button or otherwise updating toolbar data without user interaction accurately captures the character as a whole.

[00:13:13] Speaker 00:
There was no ask by either party to perform any kind of claim construction.

[00:13:18] Speaker 00:
And we think this is all basically new argument.

[00:13:23] Speaker 00:
If you review the briefs, both to the district court and through to the reply brief, I think you'll see that this proposed construction of toolbar is a moving target.

[00:13:33] Speaker 00:
When they summarized the idea of the pinger to the district court, they gave them three features.

[00:13:39] Speaker 00:
Those three features are the same features that appear expressly later on in the claim.

[00:13:43] Speaker 00:
You had asked, is the pinger reflected in the claim?

[00:13:48] Speaker 00:
We don't think the pinger is reflected in the term toolbar, but these steps of

[00:13:52] Speaker 00:
communicating from a client device, it's called a user internet device in the claim, to a server, the server making a decision, are you going to get an update, and the update coming back down.

[00:14:03] Speaker 00:
That's a summary that they provided in a footnote.

[00:14:06] Speaker 00:
I think it's on footnote five of their brief to the district court.

[00:14:10] Speaker 00:
That's what they thought a pinger was.

[00:14:12] Speaker 00:
And that is redundant to steps that appear elsewhere in the claim.

[00:14:17] Speaker 00:
for written description purposes, those steps that appear expressly in the claim harken back to the pinger.

[00:14:23] Speaker 00:
We don't see that this claim or any of the claims on appeal bring in the entirety of a pinger.

[00:14:30] Speaker 03:
So you're saying if the claim as written is abstract, interpreting it to have a pinger doesn't make it

[00:14:39] Speaker 03:
Less abstract?

[00:14:40] Speaker 00:
We do think that this idea that Pinger somehow infuses a non-abstract quality is wrong.

[00:14:46] Speaker 00:
That's absolutely correct.

[00:14:48] Speaker 00:
And there are problems throughout the MyMill briefing.

[00:14:55] Speaker 00:
One of the things that they say is, so first they say that the district court refused to adopt a construction.

[00:15:00] Speaker 00:
There was no refusal, because there was no ask to adopt a construction.

[00:15:03] Speaker 00:
The second thing they say is, well, if the district court had adopted the Yahoo construction, everything would have worked out great.

[00:15:09] Speaker 00:
But that Yahoo construction by its terms says that this term toolbar can be, not must be, but can be updated by a pinger or by the mod script or by something else.

[00:15:20] Speaker 00:
There's a catch-all exception that swallows the hole in the Yahoo construction, which means that this is not limiting it at all.

[00:15:29] Speaker 00:
It could be A or B or anything.

[00:15:32] Speaker 00:
And that doesn't make it non-abstract, particularly on an Alice analysis.

[00:15:40] Speaker 00:
The Yahoo constructions, the relevant pieces are at the appendix at 764.

[00:15:44] Speaker 00:
They declined to interpret can be as must be, and that's at 773, 74 in the appendix.

[00:15:53] Speaker 00:
So you're a district court, right?

[00:15:55] Speaker 00:
And they've summarized the claims character for you.

[00:15:59] Speaker 00:
They don't talk about pinger at all.

[00:16:00] Speaker 00:
They talk about adding buttons or changing buttons.

[00:16:02] Speaker 00:
And if you're a district court, I think you respond and you analyze the claims at that level.

[00:16:06] Speaker 00:
All of this stuff about how

[00:16:07] Speaker 00:
This is a critical construction, and those kinds of things are things that are being raised for the first time on appeal, really.

[00:16:12] Speaker 00:
They didn't talk about the pinger, but they talked about it only obliquely.

[00:16:16] Speaker 00:
They talked about it as being an embodiment of the specification.

[00:16:19] Speaker 01:
They talked about it as being, there is one statement that says- Was the scope of the claims ever in dispute below?

[00:16:27] Speaker 00:
No.

[00:16:27] Speaker 00:
Again, neither party offered a construction.

[00:16:33] Speaker 00:
No, that's right.

[00:16:34] Speaker 00:
It's not.

[00:16:35] Speaker 00:
And again, their pitch, their sales pitch to the district court was adding a button or changing toolbar data.

[00:16:41] Speaker 00:
That's the thing that made it non-abstract.

[00:16:43] Speaker 00:
And that was the thing that was driving the Alice analysis before the district court.

[00:16:47] Speaker 00:
That's gone.

[00:16:47] Speaker 00:
It's not been raised on appeal.

[00:16:49] Speaker 00:
And now we're talking about something new.

[00:16:51] Speaker 00:
We're talking about how this Yahoo construction somehow changes the character of the claim.

[00:16:55] Speaker 00:
We think that's wrong.

[00:16:56] Speaker 01:
So your opponent says we have to read into the claims

[00:17:00] Speaker 01:
the language about the pinger that's in the written description.

[00:17:04] Speaker 01:
Do you agree with that?

[00:17:04] Speaker 00:
I do not.

[00:17:05] Speaker 00:
And again, I think if you compare the description in their footnote at the district court, it actually mirrors claim language that appears expressly in the claim.

[00:17:15] Speaker 00:
If a pinger does nine things and you talk about three of those functions in a claim, that indicates that the other six are not there.

[00:17:22] Speaker 00:
And that's this kind of situation.

[00:17:24] Speaker 00:
Heartbeat services and authentication services, that's all newly raised at the reply brief stage.

[00:17:29] Speaker 00:
That was not argued to the district court.

[00:17:32] Speaker 00:
It's certainly not in the claim.

[00:17:33] Speaker 00:
The claim talks about a user internet device will send a revision level to a server.

[00:17:38] Speaker 00:
The claim of the 070 patent has this litany of 21 things.

[00:17:43] Speaker 00:
The server will make a decision, and the uptake comes back down.

[00:17:47] Speaker 00:
And that matches the summary that they provided to the district court in that footnote.

[00:17:54] Speaker 00:
And again, in our view, that's ordinary stuff.

[00:17:58] Speaker 00:
If you're going to find out whether your software is out of date, you're going to look at the revision level.

[00:18:03] Speaker 00:
I think we gave a Windows 95, Windows 98 version.

[00:18:07] Speaker 00:
You can call down to your IT shop and say, I'm running Windows 95.

[00:18:11] Speaker 00:
And they say, nope, you're out of date.

[00:18:13] Speaker 00:
Or the personalized media case.

[00:18:14] Speaker 00:
Judge Andrews from the Delaware District Court said it was like checking the federal rules of civil procedure.

[00:18:19] Speaker 00:
If I'm running the 2017 or 2018 version, my library tells me, yeah, you're out of date.

[00:18:24] Speaker 00:
You need a new copy.

[00:18:26] Speaker 00:
And they send me the new copy.

[00:18:27] Speaker 00:
These are straightforward techniques.

[00:18:30] Speaker 00:
The techniques that are recited in the claim affirmatively are straightforward.

[00:18:33] Speaker 00:
They're the kinds of techniques you would expect to be done sort of at a brick and mortar's the wrong term, but at some type of manual process level.

[00:18:41] Speaker 00:
And they show the abstract nature of this claim.

[00:18:47] Speaker 00:
All right.

[00:18:48] Speaker 00:
So are there any questions?

[00:18:51] Speaker 00:
I got myself a little derailed.

[00:18:54] Speaker 03:
Back on track.

[00:18:56] Speaker 00:
Let's see.

[00:18:58] Speaker 00:
OK, step two as well, they were talking about before the district court, adding buttons or revising buttons.

[00:19:05] Speaker 00:
That's at page 745 of the appendix.

[00:19:10] Speaker 00:
Again, I don't want to overstate it.

[00:19:11] Speaker 00:
They did bring up the Pinger concept before the district court, but they were characterizing it as a teaching of the specification.

[00:19:17] Speaker 00:
They were talking about embodiments of the specification.

[00:19:20] Speaker 00:
They did say that the Yahoo instruction somehow infuses a technical character to the claim.

[00:19:28] Speaker 00:
I think that's clearly wrong.

[00:19:30] Speaker 00:
But these are just not issues that the district court needed to address in deciding this issue.

[00:19:39] Speaker 00:
Another thing I'd like to point out is these claim elements, again, their summary of the pinger appear expressly in the claim.

[00:19:47] Speaker 00:
And the district court got that.

[00:19:48] Speaker 00:
The district court looked at those issues as they appear expressly in the claim and decided that this case looked like the personalized media case.

[00:19:56] Speaker 00:
The personalized media case is a case from Delaware that was affirmed by this court.

[00:20:01] Speaker 00:
It was a case where a computer has version one.

[00:20:04] Speaker 00:
I think they call it a specific version in the claim and they received something called a designated version and they compared them and they decided, you know, are we going to update software?

[00:20:13] Speaker 00:
It's exactly what's happening here.

[00:20:15] Speaker 00:
And these features, these three features that they provided in their summary in that footnote

[00:20:23] Speaker 00:
are the same features that were in the claim, and those features drove the district court to decide, hey, this looks like the personalized media case.

[00:20:30] Speaker 00:
This isn't a swing and a miss.

[00:20:31] Speaker 00:
It's not like the district court didn't see it.

[00:20:33] Speaker 00:
This is something where the district court actually saw these claim elements sitting in the claim expressly, and it drove the district court's decision correctly, we think.

[00:20:51] Speaker 00:
OK.

[00:20:53] Speaker 00:
Just a couple notes, there are no factual issues in dispute.

[00:20:55] Speaker 00:
This is not a Berkheimer situation or an Atrix situation.

[00:20:59] Speaker 00:
No pleadings and the allegations in the complaint.

[00:21:02] Speaker 00:
No expert declarations.

[00:21:03] Speaker 00:
No need for discovery cited in district court briefing.

[00:21:07] Speaker 00:
The PTAB decisions to which they, to my mail refers, all happened after the district court's decision.

[00:21:13] Speaker 00:
So the district court's decision predates those.

[00:21:16] Speaker 00:
And we just really think this doesn't move the needle.

[00:21:20] Speaker 00:
at all.

[00:21:21] Speaker 01:
And just to be sure, was there or was there not a claim for, rather a request for a claim construction?

[00:21:27] Speaker 00:
No, there was not.

[00:21:31] Speaker 00:
At best, there's also another footnote.

[00:21:34] Speaker 00:
Let me see if I can find it in my notes.

[00:21:38] Speaker 00:
Page 734 of the appendix, they had a footnote 8 in their brief suggesting that the entirety of the Yahoo claim construction order demonstrated that the plausibility of constructions

[00:21:49] Speaker 00:
But in our view, that's an invitation for the court to go hunt through, you know, this, whatever, 35-page claim destruction order to find things on its own.

[00:22:00] Speaker 00:
All right.

[00:22:03] Speaker 00:
Who else can attend?

[00:22:04] Speaker 00:
Anything else?

[00:22:05] Speaker 03:
No, if that's it.

[00:22:06] Speaker 00:
If not, I'll sit down.

[00:22:07] Speaker 00:
Thank you.

[00:22:10] Speaker 03:
Mr. Guzza has some repuddle time, three minutes.

[00:22:20] Speaker 01:
Well, if we don't read the pinger process into the claims, as you'd like for us to do, then it's your pen abstract.

[00:22:32] Speaker 02:
It's a very difficult case for us to win without that limitation, yes, your honor.

[00:22:36] Speaker 02:
But we specifically pointed the district court to the claim construction ruling by the Eastern District of Texas

[00:22:43] Speaker 02:
on Appendix 740.

[00:22:44] Speaker 02:
You never did seek a claim constructor.

[00:22:47] Speaker 02:
Yes, we did.

[00:22:48] Speaker 02:
We clearly said on page 14 of our brief at Appendix 740, we said, indeed, the construction by the court in the Eastern District of Texas of the term toolbar, which is used throughout the asserted claims of the 070 patent as a button bar that can be dynamically changed or updated via a pinger process or mode script confirms

[00:23:10] Speaker 02:
that the claims of the 070 patent are directed to a particular technological process for improving an exclusively computer-oriented device.

[00:23:22] Speaker 02:
We didn't say, and please construe it this way, but I don't think there's any other reasonable way to read that language.

[00:23:28] Speaker 02:
And that wasn't lost on the defendant.

[00:23:31] Speaker 02:
They spent three pages arguing why the court shouldn't apply that claim construction.

[00:23:36] Speaker 02:
and why it was erroneous, and why even if you do construe it this way, it somehow shouldn't matter.

[00:23:42] Speaker 01:
And so we clearly pointed... It wouldn't matter because that's how you put the scope of the claims into dispute, by making exactly those type of statements, by requesting

[00:23:55] Speaker 01:
claim construction or arguing that this is appropriate construction applicable in this case?

[00:24:00] Speaker 01:
That's what we did.

[00:24:02] Speaker 01:
I didn't hear that in that footnote that you were reading.

[00:24:05] Speaker 02:
Well, we said that we specifically referred to the construction by the Eastern District of Texas as confirming our key argument on patentability under Section 101.

[00:24:15] Speaker 02:
And we attached, as Exhibit A, to our response to the claim construction ruling of the court in Texas.

[00:24:22] Speaker 02:
And then, as I said,

[00:24:23] Speaker 02:
the defendant spent two and a half, three pages arguing why the court shouldn't adopt that claim construction ruling.

[00:24:32] Speaker 02:
And so I think the court was clearly on notice that the Pinger process was a relevant issue.

[00:24:39] Speaker 02:
In fact, in its description of the technology, the court mentions that the Pinger process was an essential part.

[00:24:48] Speaker 02:
It said, let's see if I can find that, excuse me one second, here we go.

[00:24:55] Speaker 02:
The device executes software called a client dispatch application that initiates a pinger to update the toolbar database along with other databases.

[00:25:10] Speaker 02:
This was the court describing the invention for the purpose of the Alice analysis.

[00:25:15] Speaker 02:
So we clearly put the court on notice that critical to the interpretation of the scope and the character of the patent was the pinger process construction

[00:25:25] Speaker 02:
which the Eastern District of Court imposed, and which later the PTAB imposed in two separate cases.

[00:25:32] Speaker 02:
So the waiver principle requires that the district court basically had no notice that you were making the argument.

[00:25:40] Speaker 02:
Our argument here on Appendix 740, we attached the claim construction ruling.

[00:25:46] Speaker 02:
And then the defendants not only making the claim construction arguments to the contrary, also attached our brief that we filed in the Yahoo case

[00:25:55] Speaker 02:
in the Eastern District of Texas.

[00:25:56] Speaker 02:
So we could have said, please construe it this way.

[00:26:00] Speaker 02:
But I think clearly we were arguing that this construction gave the term toolbar some specific meaning, which clearly underscored that the patent was claiming a very specific process for updating the toolbar and not just any process or a generic process.

[00:26:18] Speaker 03:
As you see, we have a pinging red light.

[00:26:22] Speaker 02:
Am I already over?

[00:26:23] Speaker 02:
I apologize, Your Honor.

[00:26:25] Speaker 02:
Well, I'm now updated on the time available.

[00:26:29] Speaker 02:
Thank you.