[00:00:00] Speaker 04:
It's 191165 Uber Technologies versus Exxon, obviously a different case than the first.

[00:00:08] Speaker 04:
Good morning.

[00:00:09] Speaker 00:
Good morning.

[00:00:09] Speaker 00:
May I please record Lauren Degnan for Uber Technologies.

[00:00:13] Speaker 00:
In this case, the board did not apply the broadest reasonable interpretation of the application and launch limitations because it grafted on a narrowing limitation of during or near the time of launch, which caused the claims

[00:00:28] Speaker 00:
To exclude the preferred embodiment, and it caused the board to find that Kunichi lacked these application launch limitations.

[00:00:35] Speaker 01:
Let me ask you a housekeeping question.

[00:00:37] Speaker 01:
Are independent claims 1, 22, and 28 illustrative?

[00:00:44] Speaker 00:
They are.

[00:00:44] Speaker 00:
OK.

[00:00:45] Speaker 01:
Thank you.

[00:00:45] Speaker 00:
So 1 and 28 have the same language, and 22 a slightly different language.

[00:00:49] Speaker 00:
But those are the independent claims you focus on.

[00:00:51] Speaker 04:
OK.

[00:00:51] Speaker 04:
The challenge I'm having in this case, this is just to help me out here.

[00:00:54] Speaker 04:
And I'll ask the other side if they have anything to add.

[00:00:57] Speaker 04:
I'm trying to figure out what the claim construction was.

[00:01:00] Speaker 04:
Because the board purports to have accepted the district court's claim construction, correct?

[00:01:06] Speaker 04:
But then there's this whole discussion that the board has on appendix 15, really.

[00:01:14] Speaker 04:
Because you're talking, the issue here, the dispute here seems to be about whether responsive and the other claim limitation has a specific temporal limitation.

[00:01:25] Speaker 04:
And is this where you're saying the board grafted on these additional limitations?

[00:01:31] Speaker 04:
Because I'm just a little confused about what their actual claim construction was.

[00:01:36] Speaker 00:
Yes, Your Honor.

[00:01:37] Speaker 00:
And I think you're right to have this, to notice this ambiguity.

[00:01:40] Speaker 00:
Yes, the board did two things.

[00:01:42] Speaker 00:
First, it purported to adopt the district court's construction.

[00:01:46] Speaker 00:
But then it said it clarified it.

[00:01:48] Speaker 00:
And this is what we have.

[00:01:48] Speaker 04:
So were you OK with the district court's construction?

[00:01:50] Speaker 04:
Do you read the district court as not having imposed a particular temporal limitation?

[00:01:55] Speaker 00:
So I would say this, Your Honor.

[00:01:57] Speaker 00:
The district court did impose what it called a temporal limitation.

[00:02:02] Speaker 00:
But the board's construction is more narrow because it says that,

[00:02:06] Speaker 00:
the claimed activities have to be performed right here on Appendix 15.

[00:02:11] Speaker 00:
During or near the time of the start of the application, whereas the district course construction was more broad, because while the court said there was a temporal relationship, it also noted, for example, that an indirect connection could be enough.

[00:02:26] Speaker 00:
And it said that these functions could

[00:02:29] Speaker 00:
could occur after launch and while the application was running.

[00:02:34] Speaker 04:
Okay, and the board just concluded that it seems from this paragraph because they were fixated on the word launch.

[00:02:42] Speaker 04:
And so launch has to mean something and that's why we're imposing this to occur during or near the time of

[00:02:52] Speaker 04:
startup of the application.

[00:02:54] Speaker 04:
Why is that wrong?

[00:02:55] Speaker 00:
So the board was fixated on the ordinary meaning of launch, completely divorced from the specification in the written description.

[00:03:03] Speaker 00:
Because what the 647 patent describes, and the only embodiment that's relevant to these claims, is there's a BuddyWatch application that launches.

[00:03:13] Speaker 00:
And then no map is displayed until a user provides input.

[00:03:18] Speaker 00:
In particular, the user has to select the map function.

[00:03:22] Speaker 00:
And the application, the BuddyWatch application, can wait an indeterminate amount of time.

[00:03:27] Speaker 00:
It can wait indefinitely.

[00:03:29] Speaker 00:
And because of this only embodiment in the specification that's relevant to these claims, the board ignored, it came up with a construction by focusing on launch independent, you know, in a vacuum.

[00:03:44] Speaker 00:
that excludes this embodiment.

[00:03:46] Speaker 00:
And so our construction before the board was in association with the running of the application, that's meant to caption the idea.

[00:03:52] Speaker 00:
There's a launch phase and then there's a running phase.

[00:03:55] Speaker 00:
And so these recited functions like displaying the map.

[00:03:58] Speaker 04:
I guess the board was looking at the claim language and it says, just to your point, that that can't be right because you're distinguishing between launching and running.

[00:04:08] Speaker 04:
And the language itself, in both of those limitations that are in dispute here, talk about responsive to launching and association with an application launched.

[00:04:19] Speaker 04:
So do you have an answer to that?

[00:04:21] Speaker 00:
I do, Your Honor.

[00:04:22] Speaker 00:
And so again, it's not looking at launch in a vacuum.

[00:04:24] Speaker 00:
It says in response to application launch.

[00:04:27] Speaker 00:
And what, in context of both the claim language and in the written description, is that this idea that there's a launch phase and then something else happens.

[00:04:38] Speaker 00:
What happens is these recited activities.

[00:04:40] Speaker 00:
And so the board was led astray by just thinking that launch has to be different than running.

[00:04:45] Speaker 00:
And we agree there's a launch phase, and then what happens afterwards is running.

[00:04:51] Speaker 00:
And what the claim describes and what the specification discloses exclusively is that the display happens during the running phase.

[00:05:00] Speaker 04:
And does the specification talk about launching?

[00:05:02] Speaker 00:
Not with respect to the BuddyWatch application.

[00:05:05] Speaker 00:
If you look at every time a talk uses the word launch, it's with something totally different called the talk control feature application.

[00:05:13] Speaker 00:
And even there, talk control launches and nothing will happen until there's user input of scrolling the menu.

[00:05:21] Speaker 00:
And then other functions will occur.

[00:05:23] Speaker 00:
Now, that application, that embodiment is not related to displaying a map and selecting a service provider as in the BuddyWatch application.

[00:05:30] Speaker 00:
And so while we may agree that in a vacuum, one might consider launch different than running, the patentee chose language that really does not capture what's in the specification.

[00:05:43] Speaker 01:
Abstract cell phones and other wireless devices with GPS receivers have loaded therein a BuddyWatch

[00:05:52] Speaker 01:
application and talk control application.

[00:05:55] Speaker 01:
I'm reading from pages 13 and 14.

[00:05:59] Speaker 01:
Application programs could be loaded and run on the phones themselves.

[00:06:03] Speaker 01:
This is the board in response to the argument that responsive launching would encompass anything that occurred after launch.

[00:06:12] Speaker 01:
And that's specifically BuddyWatch application, not just

[00:06:17] Speaker 00:
This is loaded your honor not launched and so to the question is is the patent specification describing launching of the buddy watch application does it describe anything that's done quote in response to launch of an application it does not the patent is not described as

[00:06:34] Speaker 00:
any activity using the words in response to launch.

[00:06:38] Speaker 00:
And so when we're faced with a patentee who chooses language in the claims that has no hook back into this written description, the claim construction needs to accommodate the preferred embodiments, or we know that is wrong.

[00:06:50] Speaker 01:
How do you deal with the analysis on 14?

[00:06:52] Speaker 01:
Thus, the specifications suggest that the patentee distinguished launching from running.

[00:06:57] Speaker 01:
The patentee knew how to direct his claim to the running of an application, but instead the patentee

[00:07:03] Speaker 01:
chose to direct its claim to launching the application.

[00:07:06] Speaker 01:
The patentee could have used the word running and so on.

[00:07:09] Speaker 00:
So Your Honor, the patentee did use the word launch.

[00:07:13] Speaker 00:
But we don't do claim construction solely looking at the claim language and nothing else.

[00:07:17] Speaker 00:
We have to find a construction that actually captures the preferred embodiments, which is the BuddyWatch application.

[00:07:23] Speaker 04:
No, no, no.

[00:07:23] Speaker 04:
But what Judge Wallach was reading, that was preceded by a bunch of examples from the specification.

[00:07:30] Speaker 04:
The board there wasn't citing the claim language.

[00:07:33] Speaker 04:
It was citing the language of the specification.

[00:07:35] Speaker 04:
Now, do you look at the top of 14?

[00:07:37] Speaker 04:
I've got a few cites to the specification, which is their basis for concluding that these terms meant different things.

[00:07:46] Speaker 04:
So maybe you have an answer to those citations.

[00:07:48] Speaker 00:
I do.

[00:07:48] Speaker 00:
So those citations with respect to talk control,

[00:07:51] Speaker 00:
which is not the embodiment that these claims relate to.

[00:07:53] Speaker 00:
The claims relate to displaying a map, and that is BuddyWatch.

[00:07:56] Speaker 04:
So the very top... So one of the things they cite is BuddyWatch applications running on GPS-enabled cell phones.

[00:08:02] Speaker 04:
So they did use running in connection with BuddyWatch, right?

[00:08:06] Speaker 00:
They do, but they do not use, and you do not see here anything in the specification where BuddyWatch is launched.

[00:08:13] Speaker 00:
They didn't use the term launched in connection with BuddyWatch or something that's performed in response to

[00:08:18] Speaker 00:
excuse me, in response to launch in the BuddyWatch application.

[00:08:22] Speaker 00:
And what we're objecting to is the during or near the time of graft onto the claim has no support whatsoever in the specification.

[00:08:32] Speaker 00:
And the BuddyWatch application simply will not work because a long period of time can happen before the map function is selected and then the map is displayed.

[00:08:42] Speaker 00:
So we've got in the preferred environment, launch.

[00:08:45] Speaker 00:
You've got to wait forever.

[00:08:47] Speaker 00:
Just someone hits.

[00:08:48] Speaker 00:
map it function and then you might display.

[00:08:51] Speaker 04:
So there's some confusion in the briefing and in the record perhaps about whether or not map it is an application too.

[00:08:58] Speaker 04:
Is that is your understanding that that's what the other side relies on?

[00:09:01] Speaker 00:
That the other side does rely on that your honor and the record simply does not support it.

[00:09:05] Speaker 04:
And did the board make any

[00:09:06] Speaker 00:
The board did not make findings supported by evidence that MAP-IT is a function.

[00:09:11] Speaker 00:
There is a statement in the background section where it calls it an application, but it does not cite the evidence.

[00:09:16] Speaker 04:
Well, you say that MAP-IT is a function.

[00:09:17] Speaker 04:
No, no, no.

[00:09:18] Speaker 04:
You mean MAP-IT is an application.

[00:09:19] Speaker 00:
Yes.

[00:09:20] Speaker 00:
The board on page 20, appendix 20, does in passing mention that MAP-IT is an application.

[00:09:26] Speaker 00:
But there's no record support for that.

[00:09:27] Speaker 00:
The board did not make a finding.

[00:09:29] Speaker 00:
It did not articulate reasoning to show that MAP-IT is an application.

[00:09:33] Speaker 00:
And when you look into all the citations we have in the brief,

[00:09:36] Speaker 00:
MAPID is always referred to as a routine or a function.

[00:09:40] Speaker 00:
It's not referred to an application.

[00:09:42] Speaker 00:
It's a routine within the buddy watch application, just like spell check is a function within something like Microsoft Word.

[00:09:49] Speaker 00:
And so there's no embodiment that this construction of door nearing the time of reads on.

[00:09:57] Speaker 00:
And so we know that's the reason it is wrong.

[00:10:00] Speaker 00:
It's not the broadest reasonable interpretation of the claim to graft on this door near the time of.

[00:10:06] Speaker 04:
Can I just ask you hypothetically, you're asking for reversal here.

[00:10:10] Speaker 04:
Is it your view that we wouldn't, even if we agreed with you on claim construction or on the board's claim construction, we wouldn't have to remand it?

[00:10:18] Speaker 04:
There were other arguments that were never addressed by the board.

[00:10:21] Speaker 00:
That's right, Your Honor.

[00:10:21] Speaker 00:
So I think our position on this is it really depends on the claim.

[00:10:24] Speaker 00:
So there's a few claims that we've listed in the brief, for example.

[00:10:28] Speaker 04:
The dependent claims?

[00:10:30] Speaker 00:
Dependent claims for sure need to be remanded.

[00:10:32] Speaker 04:
We listed them out.

[00:10:33] Speaker 00:
Definitely.

[00:10:34] Speaker 00:
I think under this course, owing corings, construction, nothing.

[00:10:38] Speaker 00:
The only thing that was missing for certain claims was these application launch limitations.

[00:10:42] Speaker 00:
So those could be reversed.

[00:10:43] Speaker 00:
But there's definitely a remand has to happen to deal with the dependent claims.

[00:10:47] Speaker 00:
I'm in my rebuttal time.

[00:10:48] Speaker 00:
I would like to save it.

[00:11:01] Speaker 03:
Thank you, Your Honor.

[00:11:01] Speaker 03:
May it please the Court.

[00:11:03] Speaker 03:
The PTAP's claim construction of the launch elements was correct, should be affirmed.

[00:11:08] Speaker 04:
Well, can you at least tell me what that construction is?

[00:11:11] Speaker 04:
Is it correct?

[00:11:12] Speaker 04:
Because they purported to adopt the district court's claim construction, but they did graft upon that.

[00:11:18] Speaker 04:
Am I right?

[00:11:19] Speaker 04:
When you say we should adopt their claim construction, that includes Appendix 15, which is to say the claim functions to occur during and near the time of the startup of the application.

[00:11:31] Speaker 04:
So that's the claim construction we're applying here, right?

[00:11:33] Speaker 03:
Yes, that's correct.

[00:11:35] Speaker 04:
OK, what is there in the specification to support this temporal requirement of occurring during or near the time of startup of the application?

[00:11:46] Speaker 03:
Well, Your Honor, if we look at the specification at column 26, I'm sorry, column 6, lines 29 to 41, for example.

[00:11:57] Speaker 04:
Can you give me an appendix site, please?

[00:12:00] Speaker 04:
Is it 120, 119?

[00:12:19] Speaker 03:
And I would point out, yes, it is Appendix 119.

[00:12:25] Speaker 01:
And Column 6, where?

[00:12:29] Speaker 03:
Lines 29 to 41.

[00:12:30] Speaker 03:
And I would point out that on Appendix 5, where the PTAP identifies MAP-IT as an application, it refers to Column 6, Lines 33 through 36.

[00:12:45] Speaker 03:
And there, the specification says, if MAP-IT is selected,

[00:12:54] Speaker 03:
the user is taken to the MAPIT page shown on Figure 2D.

[00:12:59] Speaker 03:
Figure 2D shows the MAPIT page where the positions of active users within the radius set up in the preferences of the center point XXX within radius YYY is shown.

[00:13:12] Speaker 03:
There, the board relied on, and the specification discloses, the selection of MAPIT.

[00:13:19] Speaker 03:
And if MAPIT is selected,

[00:13:21] Speaker 03:
the activities, the operations that are in the claims happen.

[00:13:27] Speaker 03:
The receipt of position information, the receipt of and display of position information, and then the updating of

[00:13:36] Speaker 03:
position information as there is a movement.

[00:13:39] Speaker 04:
I may have lost, because I sometimes forget the question I asked by the time we had that.

[00:13:43] Speaker 04:
But I thought my question was, where in the specification is there support for the conclusion that the claim construction is occurring during or near the time of the startup of the application?

[00:13:57] Speaker 04:
So is that what you were referring to in six?

[00:14:00] Speaker 04:
Because I'm not kind of seeing it come together.

[00:14:02] Speaker 03:
OK.

[00:14:02] Speaker 03:
Well, what the specification discloses there and what the PTAB looked at.

[00:14:06] Speaker 04:
And is that what you're showing me to support the board's conclusions that the correct construction is occurring during or near the time of the startup?

[00:14:14] Speaker 03:
That's right.

[00:14:15] Speaker 03:
And what the specification discloses is that if you select MAP-IT, these things occur.

[00:14:21] Speaker 03:
that at least suggests that there's some nearness in time to activities occurring.

[00:14:26] Speaker 02:
I thought the claims required use of the method, right?

[00:14:31] Speaker 02:
Responsive to launch.

[00:14:32] Speaker 02:
Is that what we're talking about here?

[00:14:34] Speaker 03:
Well, the claims say is, for example, that... Where are you?

[00:14:39] Speaker 03:
I'm at appendix 131, claim 1, lines 9 through 12.

[00:14:46] Speaker 03:
The method is invoked

[00:14:48] Speaker 03:
responsive to launching an application on the first wireless device.

[00:14:53] Speaker 02:
That is, the user uses the method in response to the launch, right?

[00:14:58] Speaker 02:
Well, it says... No, no, no, answer my question.

[00:15:01] Speaker 02:
Is that what we're talking about?

[00:15:04] Speaker 03:
I don't think that's correct, Your Honor.

[00:15:06] Speaker 03:
I think it is correct.

[00:15:07] Speaker 02:
What is happening in response to the launch?

[00:15:10] Speaker 02:
It says the method is invoked or whatever.

[00:15:14] Speaker 02:
What does it mean when it says the method is invoked?

[00:15:18] Speaker 03:
Well, the invocation is causing receipt, and I'm referencing now Appendix 130, Line 57, causing receipt of information on the first wireless device representing the position.

[00:15:34] Speaker 03:
further down causing display of the map on the first wireless device and Then further down on line 66 causing receipt of information Representing a positional update isn't that true in the prior art that when the application is used that you get information as a result of that The prior art however is completely silent about the invocation of

[00:16:03] Speaker 03:
of those steps responsive to launch of an application.

[00:16:08] Speaker 02:
I thought the prior art showed that when you launched an application you got information.

[00:16:13] Speaker 03:
That's incorrect, Your Honor.

[00:16:15] Speaker 02:
What's incorrect about it?

[00:16:16] Speaker 03:
Because the prior art, as Uber recognizes, is silent about

[00:16:21] Speaker 03:
an application and any application launch on the user device.

[00:16:25] Speaker 03:
It just does not show that.

[00:16:27] Speaker 03:
Therefore, and Uber did not show, any connection between launch and any invocation of those steps that are recited in the claim.

[00:16:38] Speaker 02:
What does invocation of the steps mean?

[00:16:40] Speaker 02:
According to you, it means just receipt of information.

[00:16:42] Speaker 03:
Well, it causes those things to occur.

[00:16:44] Speaker 03:
And as I was mentioning.

[00:16:46] Speaker 02:
The receipt of information, you mean?

[00:16:48] Speaker 03:
Well, receipt of information, receipt

[00:16:51] Speaker 03:
Map information receipt and then display of that information on the phone receipt of updated position In your view that's all that's required.

[00:17:00] Speaker 02:
It's just receipt of information once you launch the application Well, there's the two things the things are connected because the answer is that correct that you launch the application you get information the claim is satisfied I don't believe that's correct your honor.

[00:17:16] Speaker 02:
Well, then what I thought that's what you were saying.

[00:17:18] Speaker 02:
What are you saying?

[00:17:19] Speaker 03:
The reason is, is that those things and those steps and the receipt of information, the display of information, the receipt of updated information, those things are responsive to launching the application.

[00:17:31] Speaker 03:
There's a connection.

[00:17:33] Speaker 03:
between the activities and the claims.

[00:17:35] Speaker 02:
But doesn't that happen in the prior art, that when the application is launched, you get the information?

[00:17:40] Speaker 02:
No.

[00:17:41] Speaker 02:
If that's all that's required, isn't that in the prior art?

[00:17:44] Speaker 03:
It is not.

[00:17:45] Speaker 03:
It is not in the prior art.

[00:17:46] Speaker 04:
Don't you have to launch the application before you can do anything?

[00:17:50] Speaker 03:
Well, but the claim requires.

[00:17:52] Speaker 04:
The answer is yes?

[00:17:54] Speaker 03:
Well, you don't have to invoke that method responsive to launch.

[00:18:00] Speaker 03:
And that's what the claims require.

[00:18:02] Speaker 02:
a connection between- But you say all that requires is receiving the information.

[00:18:06] Speaker 03:
It does not.

[00:18:07] Speaker 03:
It requires a connection between launching the application.

[00:18:10] Speaker 03:
And let me explain why that's important.

[00:18:13] Speaker 04:
Where in the spec do they talk about that?

[00:18:15] Speaker 04:
I mean, maybe there's a connection, but we started this discussion with talking about the claim limitation that the board invoked, which was as occurring during or near the time of startup of the application.

[00:18:30] Speaker 04:
That's a temporal limitation.

[00:18:32] Speaker 04:
So you're talking here about you start the application and then something happens in response to the startup, but where do we get that temporal?

[00:18:43] Speaker 03:
During or near the time of the startup well, I mentioned that column six lines 33 to 36 talk about pressing or selecting map it and then operations occur so you

[00:19:00] Speaker 04:
And is your interpretation of this that MAPIT is the application or that BuddyWatch is the application?

[00:19:06] Speaker 03:
We have said MAPIT is an application.

[00:19:08] Speaker 03:
The PTAB accepted that and found MAPIT was an application as well.

[00:19:13] Speaker 04:
Well, in this paragraph that you've pointed us out to, it talks about the BuddyWatch application.

[00:19:18] Speaker 04:
And it refers to MAPIT as a selection.

[00:19:29] Speaker 04:
upon the launching of the Buddy Watch application.

[00:19:32] Speaker 04:
Am I reading that paragraph correctly in this specification?

[00:19:34] Speaker 03:
You are.

[00:19:34] Speaker 03:
And I will say, the specification.

[00:19:37] Speaker 04:
So this paragraph isn't supporting the notion that MAP-IT is a separate application.

[00:19:42] Speaker 01:
And why isn't it, for example, as your opposing counsel said, a routine or a subroutine?

[00:19:48] Speaker 03:
Well, I will say the specification does not specifically call MAP-IT an application.

[00:19:57] Speaker 03:
But what it does do,

[00:19:58] Speaker 03:
It calls MAP-IT a command or a function.

[00:20:02] Speaker 03:
And what the specification further says is that commands can be invoked to allow the user to select a map display.

[00:20:11] Speaker 03:
That's at column 24, lines 36 to 57, commands.

[00:20:16] Speaker 03:
You can select MAP-IT and that can be invoked to allow the user

[00:20:22] Speaker 03:
to select the map display that directly ties the invocation language of the claims to selecting a software command.

[00:20:33] Speaker 02:
Now you're talking about user activity being invoking the application as opposed to the receipt of the information.

[00:20:40] Speaker 02:
I really don't understand your claim construction.

[00:20:45] Speaker 02:
If you launch the application, then what is it that constitutes use of the method?

[00:20:53] Speaker 02:
Is it the receipt of the information or some action by the user?

[00:20:58] Speaker 02:
What are we talking about?

[00:21:01] Speaker 03:
Well, Your Honor, if we look at... Let me just tell me.

[00:21:13] Speaker 01:
The application is launched, and it's running after it's launched.

[00:21:21] Speaker 01:
And then at a point in time, it's accessed through the MATLAB routine?

[00:21:30] Speaker 03:
No.

[00:21:31] Speaker 03:
In order for these claims to be met, there needs to be some connection between the launching of the application and the receipt of that information.

[00:21:41] Speaker 03:
The claims specifically tie those things together.

[00:21:43] Speaker 02:
Why doesn't that happen in the prior arc?

[00:21:44] Speaker 02:
Konishi, you know, you launch the application, you get information about taxi locations.

[00:21:51] Speaker 02:
Why isn't that within the claim?

[00:21:54] Speaker 03:
Because, Your Honor, there's no specific disclosure in Konishi of an application to perform these steps, and there's no... So your argument really now is that Konishi doesn't show an application at all?

[00:22:06] Speaker 03:
Well, we have made that argument.

[00:22:09] Speaker 03:
The PTAP did not agree with that argument.

[00:22:11] Speaker 03:
But that is not the only part of our argument, Your Honor.

[00:22:14] Speaker 02:
Well, let's assume that Kenichi does show the launching of an application.

[00:22:19] Speaker 02:
And it also shows receipt of information on the launching of the application.

[00:22:23] Speaker 02:
And according to what I understand you to be saying, the receipt of the information comes within the claims.

[00:22:30] Speaker 03:
That completely eviscerates what responsive to launch means.

[00:22:35] Speaker 02:
And that there needs to be... But I put it to your own interpretation.

[00:22:38] Speaker 02:
You say the receipt of the information is invoking the application.

[00:22:42] Speaker 02:
That happens in Kineshi.

[00:22:44] Speaker 02:
It happens at the prior art.

[00:22:45] Speaker 03:
But it does not happen responsive to launch or in association with launch as the claims require.

[00:22:51] Speaker 02:
And what that construction... It happens immediately after launch, doesn't it?

[00:22:54] Speaker 03:
No, we don't know that.

[00:22:55] Speaker 03:
There's nothing in Konishi that suggests that.

[00:22:58] Speaker 02:
Konishi describes, you launch the application, you get information about taxi locations.

[00:23:02] Speaker 03:
The only application that Konishi specifically discloses is an application on a central server.

[00:23:08] Speaker 03:
And it talks about a user interacting with an application on a central server.

[00:23:12] Speaker 03:
That's not launching an application on a user device.

[00:23:15] Speaker 03:
And that's what the claims require.

[00:23:17] Speaker 03:
And there's nothing in Konishi or Mitsuoka that suggests that any activity happens responsive to launch.

[00:23:25] Speaker 03:
And by interpreting the claims the way that Uber suggests.

[00:23:29] Speaker 01:
What happens responsive to launch prior to the user

[00:23:39] Speaker 03:
using pressing map it Our position is that launch is pressing map it that that invocation as the specification repeatedly discusses column 15 lines 59 through 65 It is a function that can be invoked to provide a map column 16 lines 38 through 60 and

[00:24:06] Speaker 03:
It can be invoked after the instant buddies relationship has been set up and to allow map display.

[00:24:14] Speaker 03:
The specification is consistent about the invocation

[00:24:19] Speaker 04:
So all of your entire argument depends on our construing MAPIT as being the application and not Buddy Watch for purposes of this claim?

[00:24:28] Speaker 03:
Not necessarily, Your Honor, but the specification is crystal clear with respect to MAPIT being what is disclosed and described as being invoked

[00:24:39] Speaker 03:
to cause receiving information.

[00:24:41] Speaker 04:
We started this with your showing us calling out Column 6, right?

[00:24:48] Speaker 04:
Lines 29 through 44.

[00:24:50] Speaker 04:
And this is a detailed discussion of MAPIT, which you relied on.

[00:24:54] Speaker 04:
I mean, this talks about the BuddyWatch application program.

[00:24:57] Speaker 03:
It does.

[00:24:58] Speaker 03:
The claims, I believe, are broad enough to cover if a separate application is already running, but that's irrelevant because what we're talking about to invoke the specifically claimed functionality is MAP-IT.

[00:25:11] Speaker 03:
So whether or not there's something else on the phone that's been launched and has been running is irrelevant to invoking

[00:25:19] Speaker 03:
the MAPIT functionality, which is specifically claimed and which is specifically near in time to the functions that are recited being performed.

[00:25:31] Speaker 03:
So can MAPIT be alone?

[00:25:33] Speaker 03:
Yes.

[00:25:34] Speaker 03:
Can there be another application?

[00:25:36] Speaker 03:
There could be, but it's irrelevant to what's claimed because the functionality that is being invoked and that is recited is MAPIT.

[00:25:45] Speaker 03:
And the reason, Your Honor,

[00:25:47] Speaker 03:
This is important.

[00:25:48] Speaker 03:
And the nearness in time.

[00:25:49] Speaker 04:
And did the board say any of this?

[00:25:51] Speaker 04:
Where is the board?

[00:25:52] Speaker 04:
What do you need to?

[00:25:58] Speaker 03:
Your Honor, what the board said was that adopting Uber's position would make the claim terms meaningless.

[00:26:07] Speaker 04:
At the oral argument, Uber... Well, they were referring to the responsive to the application.

[00:26:12] Speaker 04:
I mean, it wasn't this differentiation between Mappet and Buddywatch.

[00:26:16] Speaker 04:
That reference was to those words.

[00:26:19] Speaker 03:
Well, that's true, but they're all of a piece.

[00:26:22] Speaker 03:
What Uber argued was that responsive to launch basically has to mean after launch and can be any time.

[00:26:32] Speaker 03:
And what the PTAB said is no.

[00:26:34] Speaker 02:
But any time means in the prior art, any time, as soon as you launch, you get the information.

[00:26:42] Speaker 03:
But that's not what happens, Your Honor, in the prior art.

[00:26:46] Speaker 03:
The prior art does not disclose that.

[00:26:48] Speaker 03:
The prior art discloses.

[00:26:49] Speaker 03:
Both Konishi and Mitsuoka disclose.

[00:26:52] Speaker 03:
an application on the central server to perform operations that's completely separate and apart.

[00:27:00] Speaker 02:
What constitutes the invocation then in the prior art?

[00:27:07] Speaker 03:
That's not disclosed in the prior art.

[00:27:09] Speaker 03:
That's not disclosed at all and that's recognized by both Uber and the board.

[00:27:14] Speaker 02:
But you get the information in the prior art after the application's launched.

[00:27:18] Speaker 03:
You get it some time, and you get it some time after launch.

[00:27:21] Speaker 02:
Two days later?

[00:27:22] Speaker 02:
It's immediate, isn't it?

[00:27:25] Speaker 03:
We don't know, because there's no disclosure in the prior art of anything that's happening on the user side.

[00:27:31] Speaker 02:
If you're hailing a taxi, you don't get the information two days later, right?

[00:27:36] Speaker 03:
But we don't know what's actually on the user device.

[00:27:39] Speaker 03:
There's no disclosure of that.

[00:27:41] Speaker 03:
And Uber concedes that.

[00:27:43] Speaker 03:
Uber says,

[00:27:45] Speaker 03:
Neither Konishi nor Mitswoka state that an application is launched.

[00:27:50] Speaker 03:
They say both of that.

[00:27:51] Speaker 03:
Appendix 167.

[00:27:52] Speaker 02:
But the board disagreed with you on that.

[00:27:54] Speaker 03:
No.

[00:27:55] Speaker 03:
The board agreed with Uber on that.

[00:27:57] Speaker 02:
Konishi does not... Disagreed with you.

[00:27:59] Speaker 02:
They said that Konishi shows the launch of an application, right?

[00:28:03] Speaker 03:
What the board said... Yes or no?

[00:28:06] Speaker 03:
No.

[00:28:06] Speaker 03:
What the board said was that Konishi has an application.

[00:28:11] Speaker 03:
We disagreed with that, because the disclosure, we agree that there must be software.

[00:28:17] Speaker 03:
But neither Konishi nor Mitwoka showed that there is an application that's dedicated to performing this functionality.

[00:28:24] Speaker 03:
You might receive an email, you might receive a text.

[00:28:26] Speaker 02:
What does it mean to have the application running?

[00:28:27] Speaker 02:
Doesn't that mean disclosure of information?

[00:28:30] Speaker 03:
I'm sorry, I missed that.

[00:28:31] Speaker 02:
What does it mean if the application is running?

[00:28:34] Speaker 02:
Doesn't that mean it provides information?

[00:28:36] Speaker 03:
If the application is running, it could, but that's not what's claimed.

[00:28:40] Speaker 03:
What's claimed is responsive to launch.

[00:28:42] Speaker 03:
And both the district court and the board correctly said those words have to have meaning.

[00:28:48] Speaker 03:
There has to be some connection between the recited activities and the launch of the application.

[00:28:54] Speaker 03:
And that just wasn't shown in the program.

[00:28:56] Speaker 01:
Wait a minute.

[00:28:56] Speaker 01:
Wait a minute.

[00:28:59] Speaker 01:
Wait a minute.

[00:28:59] Speaker 01:
OK.

[00:28:59] Speaker 01:
So there's a running application.

[00:29:01] Speaker 03:
What do you want?

[00:29:04] Speaker 03:
There could be a yes.

[00:29:06] Speaker 01:
Well, we find this testimony to be persuasive evidence of a relationship between the running application and the invocation of the method.

[00:29:17] Speaker 03:
And I'm sorry, I'm not sure where you're... Page 31.

[00:29:25] Speaker 01:
They're talking about Mitsuoka.

[00:29:31] Speaker 03:
Yes.

[00:29:34] Speaker 01:
So you have a running application and an effect and invocation.

[00:29:44] Speaker 03:
And what the PTAB said was the application was launched at some point prior to invocation.

[00:29:52] Speaker 03:
The claims instead require a relationship between the starting of the application

[00:29:58] Speaker 03:
And the starting of the application, that's the launch.

[00:30:01] Speaker 02:
And then after it's started, it runs.

[00:30:04] Speaker 02:
And while it's running, as you admitted a moment ago, it provides information.

[00:30:09] Speaker 03:
Right.

[00:30:10] Speaker 03:
And what the claims require is responsive to launch.

[00:30:13] Speaker 03:
The parties agreed.

[00:30:14] Speaker 03:
And substantial evidence supports that launch is the startup.

[00:30:19] Speaker 04:
OK.

[00:30:20] Speaker 04:
We're out of time.

[00:30:22] Speaker 03:
OK.

[00:30:22] Speaker 03:
Thank you.

[00:30:22] Speaker 03:
Thank you.

[00:30:37] Speaker 00:
Your Honor, I guess I'll just highlight two points and sit down, unless there are questions.

[00:30:42] Speaker 00:
Starting where we ended, the board did find that there was an application in Konnichi on the mobile side, and it was launched.

[00:30:50] Speaker 00:
That was a finding.

[00:30:51] Speaker 00:
It's supported by substantial evidence, and I don't think X1 has challenged that finding on appeal.

[00:30:57] Speaker 00:
Secondly, I would say with respect to Buddy Watch and the selection of the MAPIT function, we did not see any evidence in the record.

[00:31:08] Speaker 00:
We did not hear counsel point out any support for the idea that one cannot wait indefinitely before one selected that function.

[00:31:20] Speaker 00:
So there is no record support for the during or at the near of the time of, and I think your honors have spoken

[00:31:27] Speaker 00:
highlighted the parts of Konichi that I would highlight for you in that Konichi launches it.

[00:31:36] Speaker 00:
Steps 30-33, there's some user input, and then the recited activities happen.

[00:31:40] Speaker 00:
And for those reasons, we'd ask you to reverse the construction, reverse the claims if you can, but remain back for the ones that need to be considered again.

[00:31:50] Speaker 00:
Thank you.

[00:31:51] Speaker 04:
We thank both sides, and the case is submitted.