[00:00:00] Speaker 00:
Case per argument is 19.1961, improved search versus Microsoft Corporation.

[00:00:07] Speaker 00:
Mr. Yorio, whenever you're ready.

[00:00:09] Speaker 03:
Thank you, Your Honor.

[00:00:10] Speaker 03:
They please the court.

[00:00:13] Speaker 03:
In this appeal, the principal disagreement between the parties is one of plain construction.

[00:00:21] Speaker 03:
And the issue is whether dialectal standardization includes all within the same first or source language,

[00:00:30] Speaker 03:
replacing a term with a common term, not withstanding dialectal variations, or if it's limited to replacing a term of a first dialect with a common term of a second dialect.

[00:00:45] Speaker 03:
Just the court below decided that the second of those two was the proper construction, and that's the main point of disagreement.

[00:00:55] Speaker 00:
Mr. Yorio, let me move you.

[00:00:58] Speaker 00:
Obviously, my colleagues agreed to ask whatever they want, but in the interest of time, let me move you to a kind of second issue.

[00:01:05] Speaker 00:
There are three claim constructions disputes.

[00:01:09] Speaker 00:
What if that's alighted and we just go to the question, so tell me your position on why, irrespective of whether we agree or disagree with all of the nuances in the district court's claim construction, can we not affirm this based on no infringement?

[00:01:25] Speaker 00:
uh... in any of that why isn't the record that your view that the record is not sufficient is that your view that that issue is not before us your response to the possibility that we would get they nevermind claim construction let's just go to the infringement question no infringement uh... yes your honor uh... we believe that issue is not properly before the court uh... and as we

[00:01:53] Speaker 03:
pointed out in some detail in the reply brief, once the claim construction order came down from the district court, we inquired as to whether Microsoft had documents or information that would enable the plaintiff to determine or the plaintiff's expert to determine whether there were translations that would fit within the court's claim construction.

[00:02:23] Speaker 03:
and that's laid out in the reply brief and the appendix.

[00:02:28] Speaker 03:
Microsoft represented it had no documents or reports which would identify those translation searches which would comport with the claim construction of dialectal standardization apart from those that did not.

[00:02:43] Speaker 03:
That response from Microsoft, which we were entitled to rely on, resulted in a joint application to state a case

[00:02:53] Speaker 03:
including discovery, including force code review, and including further amended and final infringement contentions.

[00:03:03] Speaker 03:
And while we presented our motion for non-infringement based solely on the claim construction, and that was before the court, it was a joint stipulation.

[00:03:17] Speaker 03:
The court accepted it and stayed the matter pending

[00:03:22] Speaker 03:
our motion for summary judgment based on claim construction.

[00:03:28] Speaker 00:
Why are they foreclosed?

[00:03:30] Speaker 00:
But why are they foreclosed?

[00:03:32] Speaker 00:
It's an alternative means by which to affirm the judgment here.

[00:03:37] Speaker 00:
And why are they foreclosed?

[00:03:39] Speaker 00:
I mean, a cross appeal would arguably, I think, Mr. Torello made the right choice because a cross appeal would obviously not be proper because it would enlarge the judgment beyond what we have before us.

[00:03:50] Speaker 00:
But why are they not free?

[00:03:51] Speaker 00:
to make on this record the alternative argument that there was no infringement under any claim construction.

[00:03:59] Speaker 00:
Under any claim construction, I'm sorry.

[00:04:01] Speaker 03:
Your Honor, the cases that Microsoft relies upon for that are involved in a situation where one party, a defendant or a plaintiff, files a motion for summary judgment on multiple grounds and the district court affirms on one ground

[00:04:19] Speaker 03:
uh... doesn't uh... determined uh... doesn't decide the others case goes up on appeal the appellate court can look at the alternative grounds in that motion to determine if they can affirm the decision of the district court uh... based on one of those alternative grounds that would be black so versus poor farm well here they had a cross-motion for summary judgment well which i would

[00:04:50] Speaker 00:
Yeah.

[00:04:51] Speaker 03:
As your honor pointed out, a cross motion for summary judgment was not filed and it was not appropriate given the stay of the case.

[00:05:00] Speaker 03:
And the only issue for the district court that the district court decided was our motion for summary judgment for non-infringement.

[00:05:10] Speaker 03:
So the court never decided that.

[00:05:11] Speaker 00:
So your view of what our authority, so you're saying we don't have the authority

[00:05:16] Speaker 00:
to rule otherwise, and the only circumstance is we would have that authority, which was if this alternative had been earlier placed before the district court judge as an alternative for the way that he ruled.

[00:05:30] Speaker 00:
I'm not debating with you.

[00:05:32] Speaker 00:
I just want to understand your position.

[00:05:36] Speaker 03:
We filed our motion first for summary judgment based on non-infringement with a stay in place.

[00:05:44] Speaker 03:
What Microsoft did in its motion for summary judgment was to raise issues of non-infringement which were not right, need not be decided, and really were in the form of an advisory opinion.

[00:05:59] Speaker 03:
The district court noted that in its memorandum and order.

[00:06:03] Speaker 03:
And it said when he decided to... This is Judge Hughes.

[00:06:05] Speaker 02:
Can I just interrupt?

[00:06:06] Speaker 02:
This is Judge Hughes.

[00:06:08] Speaker 02:
I don't understand why you say this is not right.

[00:06:10] Speaker 02:
They were entitled to file a cross-motion

[00:06:13] Speaker 02:
for summary judgment.

[00:06:14] Speaker 02:
They did.

[00:06:15] Speaker 02:
They said no infringement under any claim construction.

[00:06:19] Speaker 02:
The district court decided not to rule on that ground because it ruled on the other ground.

[00:06:24] Speaker 02:
But that doesn't mean they didn't file a cross-motion or that they weren't entitled to it.

[00:06:29] Speaker 02:
Why isn't the fact that they filed efficient preserved that for us to rule on it?

[00:06:35] Speaker 03:
The district court judge decided our motion first when

[00:06:43] Speaker 03:
the judge decided it, and he did rely on the stay pertaining to the Microsoft motion.

[00:06:49] Speaker 03:
When the judge decided it, it mooted the Microsoft motion.

[00:06:54] Speaker 03:
So from his perspective, and we agree with it, what was left after the judge decided our motion was really one of an advisory opinion.

[00:07:06] Speaker 03:
And the cases that Microsoft relies upon lack so

[00:07:11] Speaker 03:
only in house where Hill-Rom, they're all discussed in our reply brief, involve a different procedural posture.

[00:07:21] Speaker 03:
And it's where the district court judge is faced with the defendant's motion several grounds and only decides one.

[00:07:30] Speaker 03:
In that case, this court does have authority and jurisdiction to affirm the judgment of the district court on one of the alternative grounds.

[00:07:40] Speaker 03:
Our case is factually distinguishable.

[00:07:43] Speaker 03:
The judgment on which this appeal is based is solely from our motion, which is based on errors of claim construction.

[00:07:54] Speaker 03:
The Microsoft motion was mooted when the judge decided our motion and their motion for non-infringement on other grounds.

[00:08:04] Speaker 03:
is not properly before the court.

[00:08:07] Speaker 02:
I don't understand that.

[00:08:09] Speaker 02:
The judgment is for non-infringement.

[00:08:12] Speaker 02:
And as long as they've properly raised the argument below and you had an opportunity to respond, why can't we affirm on any alternative basis of non-infringement that's raised by the record?

[00:08:23] Speaker 02:
The cases that I mentioned, Your Honor... Can you cite a case that says we can't do that?

[00:08:32] Speaker 03:
Well, it is well settled that the district court has no jurisdiction, and therefore this court doesn't, to render an advisory opinion based on a hypothetical.

[00:08:44] Speaker 03:
That's Texas versus the United States.

[00:08:47] Speaker 02:
You keep calling it an advisory opinion, but let me, I'm sorry to interrupt, but if the district court, out of an abundance of caution here, had said, look, under my claim construction, there's no infringement, so I grant no infringement under that ground,

[00:09:00] Speaker 02:
but Microsoft has also moved across no infringement under any claim construction or the Pat Meade claim construction, I'm going to grant summary judgment on that.

[00:09:12] Speaker 02:
The district court can do that, right?

[00:09:13] Speaker 02:
They can provide alternative grounds for finding for no infringement.

[00:09:18] Speaker 02:
It's not an advisory opinion.

[00:09:20] Speaker 02:
It's just alternative basis, correct?

[00:09:24] Speaker 03:
That's correct in the abstract, but the facts here are different.

[00:09:30] Speaker 03:
alternative grounds argument that was used by Microsoft was not right for determination in the district.

[00:09:37] Speaker 03:
Well, that was what I was trying to get at before.

[00:09:39] Speaker 03:
Why wasn't it right?

[00:09:42] Speaker 03:
To answer that, because the case was stayed in terms of discovery by joint stipulation pending the final ruling on plane construction.

[00:09:53] Speaker 02:
So when Microsoft crossed new for summary judgment of no infringement

[00:10:00] Speaker 02:
under your construction, did you ask for additional discovery to respond to that motion?

[00:10:07] Speaker 02:
Or make any objection about why it was procedurally improper, because you hadn't had sufficient discovery?

[00:10:14] Speaker 03:
We made the latter argument that the case was stayed, including discovery, including source code review, by joint stipulation and order entered by the court, pending the ruling on claim construction, and stayed

[00:10:29] Speaker 03:
uh... in all respects discovery for final infringement contention therefore microsoft motion for uh... judgment of non-infringement on other non-plain construction grounds uh... was not right to be ruled upon by the court that's what the judge district court judge ruled and that wait five years

[00:10:55] Speaker 02:
Did you are you saying the district court judge said because there's been no discovery on this issue.

[00:11:01] Speaker 02:
This motion is not right.

[00:11:03] Speaker 03:
Well, he said he his conclusion was it wasn't right.

[00:11:07] Speaker 03:
The main part of his reasoning as from the point that point out that part of the opinion to me.

[00:11:34] Speaker 03:
This is on, let me get the site to the appendix.

[00:11:48] Speaker 03:
It's the district court's memorandum and order on Microsoft's motion.

[00:12:04] Speaker 03:
eight and nine of that memorandum and opinion order.

[00:12:13] Speaker 03:
Let me get the site for you.

[00:12:24] Speaker 03:
The memorandum and order of May 29, 2019, your honor, and it's at appendix 65.

[00:12:36] Speaker 02:
Can you read me what it I'm sorry.

[00:12:38] Speaker 02:
I don't mean to go over, but I'm don't have the no, I'm looking at it now.

[00:12:45] Speaker 00:
I have it now.

[00:12:46] Speaker 00:
So it's the first page and tell me what your I've got Appendix 65 in front of me.

[00:12:52] Speaker 03:
I don't see if you, if you look at the page eight of the opinion, your honor, it's Appendix 72.

[00:13:00] Speaker 00:
Okay.

[00:13:05] Speaker 03:
There's a couple of passages.

[00:13:08] Speaker 03:
The last sentence in the first paragraph, the court is conclusively determined by consent that is in accord with improved concession and Microsoft's agreement that improved has failed to satisfy a required element of the cause of action.

[00:13:28] Speaker 03:
And then the court goes on in the next paragraph, the next three paragraphs,

[00:13:35] Speaker 03:
that the court need not address Microsoft's affirmative defenses.

[00:13:39] Speaker 03:
And one of those was not infringement.

[00:13:41] Speaker 03:
And its motion for summary judgment was based on that affirmative defense.

[00:13:47] Speaker 03:
There was no counterclaim.

[00:13:49] Speaker 02:
Sorry to interrupt.

[00:13:50] Speaker 02:
That discussion is far different from what you were saying previously that the district court found that that claim wasn't right because there was insufficient discovery.

[00:13:59] Speaker 02:
All the court is saying here is, I'm not going to address these alternative grounds because it's

[00:14:04] Speaker 02:
I don't need to.

[00:14:05] Speaker 02:
Microsoft wins on this other ground.

[00:14:08] Speaker 02:
That's not saying the claim was not right or that it couldn't have bound for Microsoft on this affirmative defenses.

[00:14:18] Speaker 03:
As I understood, Your Honors, the reasoning of the court is that Appendix 72 and 73, the court did not specifically call out

[00:14:32] Speaker 03:
our alternative opposition, I mean, we opposed the motion on several grounds, and it didn't specifically address the issue that if the matter was not right given the states, but we certainly made that clear in our opposition to the motion in some detail, and that is a matter that independent

[00:14:58] Speaker 03:
of the court's decision that the summary judgment motion for Microsoft was rendered moot because of granting our motion, but it was also premature and not right for consideration.

[00:15:15] Speaker 00:
Wait a minute, so you made the argument that it's premature because you would need more discovery?

[00:15:23] Speaker 03:
Because there was a state on the case of discovery.

[00:15:26] Speaker 00:
So you made that

[00:15:28] Speaker 00:
That was your response to the cross-motion for summary judgment?

[00:15:32] Speaker 03:
There were three points raised.

[00:15:35] Speaker 03:
One being that the issue motion was moved.

[00:15:40] Speaker 03:
Two, that summary judgment was not right considering the states that had been in place, put in place jointly.

[00:15:50] Speaker 03:
And three, we disputed

[00:15:54] Speaker 03:
uh... that plant and microsoft had made it uh... satisfied its burden of proof on public judgment and pointed out tribal issues of fact all three of those rounds were third in our opposition to the microsoft motion but the only one who was not on the district sorry this is such a good and didn't the district court explicitly reject your attempt to limit

[00:16:20] Speaker 02:
the judgment to only the available records and the available discovery on page 73 of its decision?

[00:16:28] Speaker 02:
Page 73 of the... Of the appendix, sorry.

[00:16:33] Speaker 02:
Page 9 of its decision.

[00:16:46] Speaker 03:
The judge did not

[00:16:47] Speaker 03:
uh... in in the paragraph beginning with similarly which i think your honor referring to the uh... it that court did not mention uh... the issue of uh... the state that was in effect as i look at it i don't think that there was any decision by the court on the on the substantive opposition

[00:17:16] Speaker 03:
that Microsoft had not met its burden and there were tribal issues of fact.

[00:17:21] Speaker 03:
I don't think the district court had anything to say about that point.

[00:17:28] Speaker 02:
Did you make a specific motion under Rule 56, I forget which subsection, that you required more discovery to respond to Microsoft's

[00:17:38] Speaker 02:
cross-moving for summary judgment of non-infringement on alternative grounds.

[00:17:43] Speaker 03:
We did not, Your Honor, because the state was in place.

[00:17:47] Speaker 03:
And unlike the normal situation where if a party needed to undertake further discovery, it could follow Rule 56F response, we pointed out that there was a stay in place.

[00:18:00] Speaker 03:
So there isn't even an opportunity to request additional discovery.

[00:18:05] Speaker 03:
And that was the posture of the matter before the district court when it decided to design some judgment to Microsoft.

[00:18:18] Speaker 00:
I have one, your time is up, but I have one more quick question.

[00:18:21] Speaker 00:
Just the claims 12 and 14 where the judge concluded those were invalid, the lock of course on instruction on the interest function claims.

[00:18:33] Speaker 00:
And you weren't appealed.

[00:18:35] Speaker 00:
I mean, are you disputing at all that those claims go down no matter what?

[00:18:40] Speaker 03:
The means plus function claims, we are not that have those terms.

[00:18:46] Speaker 03:
We are not challenging on appeal, Your Honor.

[00:18:50] Speaker 00:
OK.

[00:18:50] Speaker 00:
Thank you.

[00:18:51] Speaker 00:
We'll reserve the remix.

[00:18:53] Speaker 00:
We'll give you some time back for rebuttal.

[00:18:54] Speaker 00:
And let's hear from Mr. Atrella.

[00:18:57] Speaker 03:
Thank you, Your Honor.

[00:18:59] Speaker 01:
Thank you, Your Honor.

[00:19:00] Speaker 01:
And may it please the court

[00:19:02] Speaker 01:
Let me pick up with this alternative grounds argument.

[00:19:07] Speaker 01:
I think there may be some confusion about exactly what happened here.

[00:19:12] Speaker 01:
If you look at appendix page 1140 and 1141, that's the party's joint motion which the judge accepted, which kind of set the ground rules for dealing with summary judgment.

[00:19:25] Speaker 01:
I think it's important to note that this procedure was a jointly agreed procedure.

[00:19:33] Speaker 01:
motion expressly provides that Microsoft may file a cross-motion for summary judgment of non-infringement.

[00:19:39] Speaker 01:
So the suggestion that counsel made that somehow the cross-motion wasn't proper or wasn't timely or something, that's not right.

[00:19:49] Speaker 01:
It's contrary to the stipulation and to the procedure the court established.

[00:19:55] Speaker 01:
Counsel argued that he needed more discovery

[00:20:00] Speaker 01:
in order to oppose summary judgment, well, that is precisely what Rule 56D is all about.

[00:20:07] Speaker 01:
And a response to a summary judgment motion that invokes Rule 56D and says, granting summary judgment now would be premature because I have not had an adequate time for discovery, is a response to summary judgment expressly permitted under the terms

[00:20:25] Speaker 01:
of the joint motion and stipulation.

[00:20:28] Speaker 01:
That would be a response to Microsoft's cross motion for summary judgment, which was expressly permitted.

[00:20:35] Speaker 01:
And I want to talk a little bit about this supposed need for more discovery.

[00:20:39] Speaker 01:
Besides the fact that improved search didn't invoke the procedure that you invoke when that's a concern, improved search had access to the source code for many months before any state was in place.

[00:20:53] Speaker 01:
It had technical documents from Microsoft before that that made no intent to depose anyone about any of that, even when no stay was in place.

[00:21:03] Speaker 01:
And I think, more importantly, we submitted in support of Microsoft's cross-motion for summary judgment a declaration of Garrett Kamanaga, a senior engineer at Microsoft, to explain how the accused product works.

[00:21:18] Speaker 01:
And not only did improved search not dispute any of his

[00:21:22] Speaker 01:
factual statements about how the product works, its expert at Appendix Page 1395, paragraph 7, affirmatively accepted them as true.

[00:21:31] Speaker 01:
He said, for purposes of the motions, I believe that all of his statements are literally true.

[00:21:37] Speaker 01:
And in the response to our cross-motion for summary judgment, and that's at Appendix Pages 1620 to 33, they did not, Approved Search did not take issue with any

[00:21:49] Speaker 01:
of the statements in the Kamanaga Declaration.

[00:21:53] Speaker 01:
And what that declaration establishes, among other things, is that the Bing search engine, the used product, does not extract and replace any content words, which is a requirement of both parties' proposed constructions.

[00:22:08] Speaker 01:
It's part of the construction improved search says should apply.

[00:22:12] Speaker 01:
And also, Bing does not use a second language search engine.

[00:22:16] Speaker 01:
It doesn't search

[00:22:18] Speaker 01:
using words in the second language or fulfill that element of the claim requirements, which is also a part of improved search's own construction.

[00:22:28] Speaker 01:
So I think that given that they did not take issue with any of the factual statements that Microsoft advanced, this notion that somehow discovery would have changed things after they affirmatively accepted these as true, that just doesn't make any sense.

[00:22:48] Speaker 01:
Council also argued that somehow the Glaxo and Hill-Rom cases are different.

[00:22:55] Speaker 01:
They're not different at all.

[00:22:57] Speaker 01:
The proposition is well settled that when you present multiple grounds for summary judgment in the district court, which is what happened here, the district court accepts one and either rejects or doesn't address the others.

[00:23:08] Speaker 01:
The others are available on appeal as an alternative grounds for affirming that the judgment that the district court reached.

[00:23:15] Speaker 01:
It's not moot.

[00:23:17] Speaker 01:
There's still a case of controversy.

[00:23:19] Speaker 01:
So the notion that somehow this court can't reach the alternative grounds, it's just legally incorrect.

[00:23:29] Speaker 00:
Well, the question then is, assuming we agree with you that we have the authority to do it, the question is whether that's what we should do.

[00:23:37] Speaker 00:
So why isn't it a better route, even if, again, all of this assumes that we can't affirm on claim construction, which no one's decided yet.

[00:23:45] Speaker 00:
But assuming that's where we are, why wouldn't the better route still be to send this back to the district court, let the district court decide if they make a motion whether he should grant some more discovery on this question and resume what is otherwise regular order to let the district court have the first bite of the saddle?

[00:24:05] Speaker 01:
Well, several reasons, Your Honor.

[00:24:08] Speaker 01:
First of all,

[00:24:09] Speaker 01:
The proper procedure here would have been for them to invoke Rule 5060, which they did not do, and for good reason, I submit.

[00:24:19] Speaker 01:
They had plenty of opportunity for discovery, notwithstanding the states, and discovery won't make any difference because they have effectively stipulated that the statements in the Kamanaga Declaration are true.

[00:24:33] Speaker 01:
Given the truth of those statements, they cannot establish infringement as a matter of law under their own claim construction.

[00:24:40] Speaker 01:
So even if they had a right to more discovery, which I submit they don't, given the procedural posture and their failure to invoke Rule 56D, it would accomplish nothing because they've already, in effect, stipulated away infringement by the way they responded to our motion and the Kamenaga Declaration.

[00:25:05] Speaker 01:
I don't know if the court has any further questions on the alternative grounds issue.

[00:25:12] Speaker 01:
I'm happy to address them.

[00:25:17] Speaker 01:
I'm also obviously prepared to talk about the claim construction issues.

[00:25:20] Speaker 01:
I'll just say briefly there that the claims all require dialectal standardization of a content word, not just standardization.

[00:25:30] Speaker 01:
The construction that improved search

[00:25:34] Speaker 01:
offered below and pushes on appeal, gives no effect to the claim term dialectal, which, contrary to a long line of this Court's claim construction rulings, the way improved surgeries to claims, they would mean the same thing if it just said standardization.

[00:25:50] Speaker 01:
And so for that reason, we think the district court got it exactly right.

[00:25:56] Speaker 01:
And the other aspects of the claim construction, though, more commonly known, not only is that

[00:26:03] Speaker 01:
included in the description of the present invention and the summary of the invention in the patent.

[00:26:08] Speaker 01:
But as Dr. Shamos, improved search's own expert, made clear, that has to be true.

[00:26:15] Speaker 01:
Otherwise, the invention doesn't work.

[00:26:17] Speaker 01:
It doesn't make any sense otherwise.

[00:26:19] Speaker 01:
And finally, they expressly disclaimed lemmatization and synonyms in the IPR.

[00:26:26] Speaker 01:
Again, Dr. Shamos confirmed that.

[00:26:29] Speaker 01:
And so that aspect of the construction is correct as well.

[00:26:32] Speaker 01:
If the court has no further questions, I'm happy to yield the rest of my time.

[00:26:39] Speaker 00:
Colleagues?

[00:26:41] Speaker 00:
I don't have any questions.

[00:26:43] Speaker 00:
No questions.

[00:26:45] Speaker 00:
Thank you very much.

[00:26:50] Speaker 00:
Now, Mr. Iurio, since Mr. Trela raised the claim construction for at least a few minutes, I feel like you should get a few minutes additional because we haven't

[00:27:00] Speaker 00:
We didn't raise it for you in the first instance.

[00:27:02] Speaker 00:
So if you want to start off and spend a few minutes responding to his argument on claim construction, and then you'll have a few minutes to talk about whatever you want to on the other issues that we were pressing on.

[00:27:12] Speaker 03:
Okay.

[00:27:13] Speaker 03:
Thank you, Your Honor.

[00:27:14] Speaker 03:
Let me deal with principle issues on claim construction first.

[00:27:27] Speaker 03:
As Mr. Totella mentioned, the main point that Microsoft makes is that the improved search construction would read the word dialectal out of the claim language.

[00:27:39] Speaker 03:
And the district court picked up on that and agreed with Microsoft.

[00:27:43] Speaker 03:
And we fundamentally disagree with that conclusion, because the improved search construction includes both same dialect standardization and cross-dialect standardization.

[00:27:58] Speaker 03:
not limited to one or the other.

[00:28:01] Speaker 03:
And Microsoft contends that the purpose, the reason its construction should be adopted is that the purpose of dialectal standardization is to account for dialectal variations.

[00:28:13] Speaker 03:
It's in the Microsoft brief at pages 27 to 28.

[00:28:18] Speaker 03:
But that's only a partial statement of the purpose of the process.

[00:28:24] Speaker 03:
The specification

[00:28:25] Speaker 03:
specifically states that the purpose of dialectal standardization is to give one consistent meaning to the identified keyword, notwithstanding dialectal variations.

[00:28:38] Speaker 03:
That's at the 101 patent.

[00:28:41] Speaker 00:
Okay.

[00:28:41] Speaker 00:
Well, I think we have your argument outlined in detail in the brief in that regard.

[00:28:46] Speaker 00:
I do want to move you back to the other, if that's okay with you, to move you back to the other issue we were discussing.

[00:28:53] Speaker 00:
And just ask you if you have any, I mean, two principal arguments made by Mr. Trello, which is you should have invoked 56D and also the stipulation with regard to their testimony, et cetera.

[00:29:07] Speaker 00:
So do you have a quick response to either of those two points?

[00:29:10] Speaker 03:
Yes, with respect to 56D or E request, it was not

[00:29:21] Speaker 03:
properly before the court because there was a stay in place.

[00:29:25] Speaker 03:
Mr. Tethelin indicated that there was a stay.

[00:29:28] Speaker 03:
The stay, and he cited to the correct pages of it, stayed all discovery in the case.

[00:29:40] Speaker 03:
So the stay would have been, have to have been not present before in responding we could make a Rule 56 request for discovery.

[00:29:50] Speaker 03:
The whole point of the stay was to put a hold on discovery and any other issues that the parties wanted to pursue pending the outcome of the motion that improved search intended to make.

[00:30:09] Speaker 03:
So to adopt that decision would mean to not recognize the stay at all.

[00:30:15] Speaker 03:
The court had the stay in place and there was no, it did not,

[00:30:20] Speaker 03:
allow improved search to conduct the discovery in opposition to the motion.

[00:30:28] Speaker 03:
With respect to the substance of the summary judgment motion, I do want to point out that in addition to the non-rightness of the Microsoft's motion for summary judgment of non-infringement on other grounds that we've discussed earlier,

[00:30:47] Speaker 03:
We also opposed the issues on substantive matter of summary judgment, and that's at pages 28 to 30 of our reply brief.

[00:31:01] Speaker 03:
And contrary to what counsel said, Dr. Seamus' declaration, and it's at appendix 16, the full declaration is 1634 to 1637.

[00:31:17] Speaker 03:
And he points out, among other things, that one of the main problems with the Kaminga Declaration is that his conclusions rest on assumption that certain limitations were required by the district court's claim construction of dialectal standardization.

[00:31:37] Speaker 03:
And we point them out on page 29.

[00:31:41] Speaker 03:
Dr. Seamus' declaration addresses those as paragraphs

[00:31:47] Speaker 03:
10 and 11.

[00:31:48] Speaker 03:
And he, Dr. Seamus, addressed each of the points and pointed out whether they rested on inappropriate assumptions on a different claim construction.

[00:32:04] Speaker 03:
And he also pointed out how they did not resolve this.

[00:32:10] Speaker 00:
Okay.

[00:32:10] Speaker 00:
Let me cut you off because your time has expired and we obviously have the content of your briefs before us.

[00:32:15] Speaker 00:
and have gone through it.

[00:32:17] Speaker 00:
So thank you very much.

[00:32:18] Speaker 00:
I thank both Council and the cases submitted.

[00:32:21] Speaker 01:
Thank you, Your Honor.

[00:32:22] Speaker 01:
Thank you, Your Honor.