[00:00:38] Speaker 03:
Our last case this morning is Klaustek, Mr. Kugel.

[00:00:44] Speaker 03:
Good morning, Your Honor.

[00:00:45] Speaker 03:
It's 2019-15-36.

[00:00:49] Speaker 03:
Ms.

[00:00:49] Speaker 03:
Klauser.

[00:00:50] Speaker 04:
Thank you very much.

[00:00:51] Speaker 04:
Let me please the Court.

[00:00:52] Speaker 04:
The District Court committed two reversible errors with regard to two separate, although related, claim limitations.

[00:01:00] Speaker 04:
The first is the browser limitation of the 651 patent.

[00:01:05] Speaker 04:
And the second is the browser identity limitation.

[00:01:09] Speaker 04:
Now, with regard to the browser limitation, the court clearly erred.

[00:01:14] Speaker 04:
Excuse me.

[00:01:16] Speaker 04:
The court clearly erred in concluding that Klaustek had failed to disclose in its infringement contentions any theory for the browser.

[00:01:26] Speaker 04:
Now that conclusion was clear error because in fact the infringement contentions disclosed that the browser was the operating system operating on the mobile device.

[00:01:39] Speaker 04:
That disclosure is contained in both the claim charts discussing the preamble to claim 20 and claim 25, the independent claims asserted here.

[00:01:50] Speaker 01:
Where do you think is your best place?

[00:01:52] Speaker 01:
Where would you identify an appendix that we should look to for your best place where you think that it's identified?

[00:01:59] Speaker 04:
The two places would be the preamble section, which is appendix 4454, and then the discussion of element A, which appears at 4464.

[00:02:10] Speaker 04:
And I'm identifying those pages of the appendix as they relate to the claim chart for Android.

[00:02:16] Speaker 04:
The claim charts for the iOS Apple systems include the same language, but instead of pointing to Android, which is Google's proprietary operating system,

[00:02:27] Speaker 04:
It points to iOS, which is, of course, Apple's proprietary operating system on the mobile device.

[00:02:35] Speaker 04:
So backing up, claim element A requires that there be a website for transmitting a page to a browser.

[00:02:44] Speaker 04:
And there's no dispute here that Klaustek disclosed that the website was the Google Play Store, that the page was the app.

[00:02:53] Speaker 04:
And so then the question is whether or not CloudStack sufficiently disclosed that the app was transferred to the browser.

[00:03:03] Speaker 04:
And it did.

[00:03:03] Speaker 04:
In the preamble section of the claim chart, it specifically discloses that the app is run on Android.

[00:03:11] Speaker 04:
It doesn't use the word operating system, but Android is Google's operating system on the mobile device.

[00:03:18] Speaker 04:
Likewise, in the claim chart discussing element A, so the second citation at appendix 4464, Klaustic disclosed that the app is downloaded from the Google Play Store on Android.

[00:03:32] Speaker 04:
Now, that reference to downloading is the suggestion that it's transferred from one system, the Google Play Store, to another system, Android, the operating system.

[00:03:44] Speaker 02:
And it's- It says the Google Play Store is on Android.

[00:03:50] Speaker 04:
That's right, Your Honor.

[00:03:51] Speaker 02:
So how is that the browser?

[00:03:54] Speaker 04:
That is not the browser.

[00:03:55] Speaker 04:
It is the suggestion that the Google Play Store is operating within the Android environment so that it's transferred an app that can only go likewise to the Android environment.

[00:04:07] Speaker 04:
And to the extent that there was any ambiguity in what then would be the browser, that's solved in the preamble, which also includes a reference to the browser or a description of the browser.

[00:04:20] Speaker 04:
And it's in that section that Klaustek further identified that the page that is transferred to the browser, the app is transferred to Android.

[00:04:37] Speaker 04:
And it's on that basis that Klaustek contends that the district court clearly erred in concluding that the infringement contentions here didn't reference the operating system as the browser, or in fact include any theory of what the browser is.

[00:04:55] Speaker 04:
That is the sole basis upon which the district court struck Klaustek's expert report opinions regarding the browser as the operating system, and as a result,

[00:05:07] Speaker 04:
CLOSET contends that that was reversible error that needs to be fixed.

[00:05:13] Speaker 04:
Unless your honors have any further questions on the browser limitation, I was going to jump now to the browser identity limitation.

[00:05:22] Speaker 04:
With regard to the browser identity limitation.

[00:05:24] Speaker 03:
You mean the unique identity?

[00:05:28] Speaker 04:
I do not.

[00:05:29] Speaker 04:
The browser identity limitation was incorrectly construed to be limited to a unique identifier for the browser.

[00:05:37] Speaker 04:
Now, the plan and ordering meeting of identity doesn't indicate any inherent requirement that it be unique.

[00:05:45] Speaker 04:
It simply means that you are referencing who or what a person, a thing, or a group of people or things are.

[00:05:55] Speaker 04:
Nothing about the word identity in and of itself requires that it identify one particular person and only one particular person or one particular, in this case, instantiation of a browser and no others.

[00:06:11] Speaker 02:
Is there anything in the spec that suggests that identity could be something more than identifying a particular browser?

[00:06:21] Speaker 02:
Yes, Your Honor.

[00:06:24] Speaker 02:
or is the spec pretty consistent that when it says identity it's really talking about like a unique fingerprint for a particular browser?

[00:06:36] Speaker 04:
The specification in fact supports the claim that

[00:06:40] Speaker 04:
identity is not limited to a unique browser.

[00:06:44] Speaker 04:
And it does so in two ways.

[00:06:46] Speaker 04:
The first is that although it references in some places, not exclusively, but in some places, a unique identifier, it does so when it's referring to a embodiment in which the central controller generates, transfers, and then interrogates for that unique identifier.

[00:07:07] Speaker 03:
Is that the top of column three?

[00:07:10] Speaker 04:
That is in column three, Your Honor.

[00:07:13] Speaker 01:
What about in the abstract?

[00:07:14] Speaker 01:
It talks about being able to provide ads to a particular browser.

[00:07:19] Speaker 01:
Wouldn't you have to have a unique identifier in order to emphasize a particular browser?

[00:07:27] Speaker 04:
I think particular on its own could likewise refer to a particular group of advertisers, browsers rather than an independent, unique instantiation.

[00:07:35] Speaker 04:
But even if particular could be interpreted to mean unique, in that instance, it's referring simply to one way in which this patent could be used.

[00:07:46] Speaker 04:
There's nothing in the patent that indicates the specification or the claims that indicates this invention is unique identifiers.

[00:07:56] Speaker 01:
Is there anything in the patent, and this goes back to Judge Chen's question actually, is there anything in the patent that suggests multiple different browsers where they get the same ad because the same identifier applies to them?

[00:08:09] Speaker 04:
There is an explicit language that talks about the word non-unique identifiers.

[00:08:14] Speaker 04:
What there is is reference in the specification to identifiers and unique identifiers.

[00:08:20] Speaker 04:
And it's in claim seven where you can see that the specification portion referring to unique identifiers is ultimately claimed.

[00:08:30] Speaker 04:
So claim seven was canceled, but it depends from claim six.

[00:08:35] Speaker 04:
And claim six has an element relating to interrogating for browser identity.

[00:08:42] Speaker 04:
In that sense, that portion of Claim 6 is identical to the independent asserted claims here, Claim 20 and 25.

[00:08:49] Speaker 01:
I think that Claim 6 was canceled as well.

[00:08:52] Speaker 04:
It was.

[00:08:53] Speaker 02:
So that portion of- Then Claim 7 limits Claim 6 by adding an additional step?

[00:08:59] Speaker 04:
It does.

[00:09:00] Speaker 04:
And the additional step that it adds is meaningful here.

[00:09:03] Speaker 02:
It adds the additional limitation that the browser- Generally transmitting and interrogating the unique browser identifier?

[00:09:10] Speaker 04:
No, it adds, in fact, the type of browser identifier is unique, and it's generated and transmitted by the central controller, and then it specifically recites that the whole purpose of having this type of identifier, this unique identifier, is so that you can uniquely identify the browser.

[00:09:31] Speaker 04:
That last fragment of claim seven discloses that the other identification

[00:09:39] Speaker 04:
The other browser identity references in claim 6 or in claim 20 and 25 don't uniquely identify the browser.

[00:09:48] Speaker 04:
That happens in dependent claim 7, which is different and adds a limitation that does not appear in claim 6 or in claim 20 or 25.

[00:10:01] Speaker 04:
Now of course there are references in the abstract and the summary of the invention to this claim, this invention of the unique identifier and the fact that it can be used to specifically target ads to a particular browser.

[00:10:18] Speaker 04:
But there's nothing in the patent that disparages the use of non-unique identifiers.

[00:10:24] Speaker 04:
There's nothing that extols the use of unique over and above non-unique identifiers.

[00:10:30] Speaker 04:
There's nothing in the specification that says this patent requires unique identifiers, that it is essential to this patent that there be unique identifiers.

[00:10:43] Speaker 04:
And as a result, anything in the specification that is discussing the unique identifier does not need to be read into every claim of the patent.

[00:10:53] Speaker 04:
Claim 20 and 25 relate to the invention that uses non-unique identifiers, and claims like Claim 7 relate to the invention that uses unique identifiers.

[00:11:06] Speaker 03:
Is this an expired patent?

[00:11:09] Speaker 04:
It is not, Your Honor.

[00:11:11] Speaker 03:
It was filed in 1999.

[00:11:14] Speaker 04:
It is, Your Honor.

[00:11:15] Speaker 04:
I believe it is.

[00:11:15] Speaker 04:
I'm sorry.

[00:11:16] Speaker 04:
I'll need to double-check that there wasn't some kind of extension, but I think you are right.

[00:11:25] Speaker 04:
Unless your honors have any further questions on the claim construction, I was going to move to the second error with regard to browser identity.

[00:11:34] Speaker 04:
The second error that the court committed with regard to the browser identity limitation is that it refused to allow CLOSDEC to amend its infringement contentions

[00:11:45] Speaker 04:
to assert that the browser identity limitation was met by the advertising ID component of the AdMob system.

[00:11:55] Speaker 04:
And the reason that the denial of leave to amend was clear abuse of discretion is because in this case... How many times did the plaintiff amend the infringement contentions in this case?

[00:12:08] Speaker 04:
After serving its final infringement contention, so after it had access to Google's source code, it did three amendments, or it made two amendments and then proposed a third, which is equivalent to what Google did.

[00:12:23] Speaker 04:
Google in this case also served three amended invalidity contentions.

[00:12:28] Speaker 04:
So it was a back and forth process of the parties continuing to narrow and crystallize based on the information that was being received

[00:12:35] Speaker 04:
as it was being received, including the court's claim construction.

[00:12:40] Speaker 04:
In the third amended or proposed contentions, what ClausTech sought to do was to accuse the advertising ID as being the browser identity.

[00:12:51] Speaker 04:
And the reason that the amendment should have been allowed is because ClausTech, in fact, acted diligently.

[00:12:59] Speaker 04:
And the district court's conclusion that ClausTech lacked diligence was clearly erroneous.

[00:13:05] Speaker 04:
Here, the timing of Klaustek's deposition of Google's engineer or its 30b6 deponent does not indicate a lack of diligence based on the unique facts here.

[00:13:18] Speaker 01:
Do I remember correctly that what the district court relied on was the fact that there had been a 36 notice of deposition and then the deposition wasn't actually taken until like two years later and that also the source code had been produced around that same time period, maybe two years earlier before the deposition.

[00:13:36] Speaker 01:
Do I have the facts right?

[00:13:38] Speaker 04:
It is correct that the deposition notice was served earlier in the litigation, but the actual deposition didn't occur until the end of the fact period, and that the district court determined that the timing... The reduction of the source code.

[00:13:52] Speaker 04:
And that the source code was produced in the January to February time period of 2015.

[00:13:58] Speaker 03:
Counsel, you're well into your rebuttal time.

[00:14:03] Speaker 03:
You can continue or save it.

[00:14:05] Speaker 04:
I'm just going to make one more remark on this part.

[00:14:07] Speaker 04:
The unique facts that make this not a run-of-the-mill case where a plaintiff delayed in taking a deposition and thus should be stuck and not allowed to amend its contentions are that the produced code doesn't reveal that advertising ID is used in a way that implicates the patent.

[00:14:26] Speaker 04:
Google intentionally obscured its code so that it was undiscoverable that advertising ID was used.

[00:14:33] Speaker 04:
And Google repeatedly represented that it had produced all relevant information to show the operation of the system and that the source code was the best evidence of the system.

[00:14:45] Speaker 04:
And it is based on those facts that ClausTech was reasonable in not knowing or not having any reason to know

[00:14:54] Speaker 04:
that the deposition was necessary to obtain critically missing information.

[00:15:08] Speaker 00:
Thank you, Your Honor.

[00:15:09] Speaker 00:
May it please the Court.

[00:15:10] Speaker 00:
I'd like to address the issues in the same order that opposing counsel has, because- Could you start with the last one, actually?

[00:15:17] Speaker 02:
That's the one I'm interested in hearing more about.

[00:15:20] Speaker 02:
The notion that the code that they received early in the discovery was incomplete, and

[00:15:31] Speaker 02:
they were told that it was complete, and so they could not have known that there was missing code that was only revealed when they took that fairly late deposition.

[00:15:43] Speaker 00:
So the code that was produced was complete.

[00:15:46] Speaker 00:
The district court considered this and specifically found that Google had produced code that was responsive to the initial theory and that had

[00:15:55] Speaker 00:
produced more code as Cloud Stack came forward and asked that they needed more to understand what they had initially received.

[00:16:02] Speaker 00:
The accusation here is against the client-side browser.

[00:16:07] Speaker 00:
And so in its initial production of code, that is what Google focused on, the AdMob SDK system and the code on the client-side that reflects that operation.

[00:16:20] Speaker 00:
When CloudStep came forward and said that they needed more from the server side to understand what the servers did with that initially produced client-side code, Google came forward with that.

[00:16:33] Speaker 00:
And it produced all of the code, including how on the server side they would unpack

[00:16:39] Speaker 00:
the codes that were transferred over the internet.

[00:16:43] Speaker 00:
And of course there are some of the parameters that are transferred over the internet, which is public, that are intentionally obscured so that people can't figure out and then be able to mimic what's going on on their own.

[00:16:57] Speaker 00:
And so some of that is obscured.

[00:17:00] Speaker 00:
in what's public there, what's transferred across the internet.

[00:17:03] Speaker 00:
But on the server side, the code that was provided showed how to unpack that, including specifically with respect to advertising ID.

[00:17:11] Speaker 00:
And let's start with the fact that the district court emphasized that advertising ID and what it does within the Android environment was publicly disclosed, including the fact that it's a unique identifier that allows advertisers to track what users are doing.

[00:17:27] Speaker 00:
So that was publicly known.

[00:17:29] Speaker 00:
If you had searched for advertising ID within the server-side code that was produced, you would find several references to it, including which of the obfuscated parameters that are transferred across the internet included the advertising ID.

[00:17:47] Speaker 00:
You would have been able to unpack that, and including, in particular,

[00:17:51] Speaker 00:
there is a spreadsheet that includes all of the parameters that are in responsive to an advertising request and that included that particular

[00:18:04] Speaker 00:
parameter that was associated in the code with advertising ID.

[00:18:10] Speaker 00:
So all of this was discernible from the code that was provided.

[00:18:15] Speaker 00:
If there had been any difficulty on the part of CloudStack in understanding that, they could have asked further questions that could have done so through

[00:18:24] Speaker 00:
interrogatories, they could have done so through taking that deposition that was noticed in January of 2015, but they didn't do so until the very end of the fact discovery period.

[00:18:36] Speaker 00:
That is the definition, really, of lack of diligence.

[00:18:39] Speaker 00:
Remember that we're talking about enforcement by the district court of its own local patent rules, patent rules that were upheld by this court in the O2 Micro case, and O2 Micro made clear

[00:18:52] Speaker 00:
that it is the burden of the party seeking to amend late in the game to prove their diligence.

[00:18:59] Speaker 00:
It's not our job to prove absence of diligence, it's their job to prove diligence.

[00:19:04] Speaker 00:
And the court went through, in its opinion, all of these facts very carefully, and these are at pages

[00:19:14] Speaker 00:
65 through 67 and rejected each of the arguments that were being made, the argument that Google Stonewall, the court specifically considered and rejected that, and the argument that they could, it was reasonable for them to delay taking the deposition because they had no idea that they didn't have access to this.

[00:19:33] Speaker 00:
The court said it is

[00:19:35] Speaker 00:
routine in the Northern District of California to find an absence of diligence when the party fails to take key depositions until the end of the discovery period.

[00:19:46] Speaker 00:
This is a case that had been going on for seven years.

[00:19:49] Speaker 00:
Now, mind you, only two years of active litigation, but having noticed that deposition in January, having been provided the code in February and March of 2015,

[00:19:59] Speaker 00:
the interactive process providing more code as more is requested, and then the fact that once the deposition is taken,

[00:20:07] Speaker 00:
They immediately understand because the deponents say, well, this is what it is, and this is where it is.

[00:20:13] Speaker 00:
They thought they had found a smoking gun because the first deponent said, well, there's a spreadsheet that shows these parameters.

[00:20:20] Speaker 00:
They said, get us that spreadsheet.

[00:20:22] Speaker 00:
We got them the spreadsheets.

[00:20:23] Speaker 00:
They said, this is the smoking gun.

[00:20:24] Speaker 00:
And we said, that's the same spreadsheet that was produced in 2015, the version that was apposite in 2015.

[00:20:31] Speaker 00:
That's just an updated version.

[00:20:33] Speaker 00:
They have the same information.

[00:20:34] Speaker 00:
Both of them include that same,

[00:20:36] Speaker 00:
disguised parameter that you would have understand from the server code included advertising ID.

[00:20:42] Speaker 00:
So the judge's determination, remember Oak 2 Micro says that enforcement of the local patent rules will be affirmed unless there is no evidence to support it, but there's ample evidence to support this.

[00:20:55] Speaker 00:
So, if I could go back now to the first ground, which is the absence of any accusation identifying what in the accused system operates as the browser.

[00:21:06] Speaker 00:
Now, I think it's important to start here, and again, the district court did this as well.

[00:21:10] Speaker 00:
with the fact that their own expert admits that at the time of this invention, a traditional browser was something like Internet Explorer, a program that works on an underlying operating system, that browser going out and retrieving pages from websites.

[00:21:30] Speaker 00:
And that was what was the understanding at the time this invention

[00:21:34] Speaker 00:
took place.

[00:21:35] Speaker 00:
Now, it was not surprising to Google when in their infringement contentions, and we'll go to specifically 4464, which is where they lay out the infringement contentions with respect to claim 20 element A,

[00:21:53] Speaker 00:
20 element A has really three sub-components.

[00:21:57] Speaker 00:
Providing a website at a web server.

[00:22:00] Speaker 00:
Now that's, they accused that in the first sentence of their contentions.

[00:22:04] Speaker 00:
That's the mobile application store and the Android environment Google Play store.

[00:22:09] Speaker 00:
We got that.

[00:22:11] Speaker 00:
And then the second sub-element is transmitting at least one page with a non-scrolling ad frame.

[00:22:16] Speaker 00:
And we've got that.

[00:22:17] Speaker 00:
That's in the second sentence of the contentions, the mobile app.

[00:22:21] Speaker 00:
contains at least one page along with lines to install a non-scrolling banner ad frame in these pages.

[00:22:28] Speaker 00:
But then 20A has a third sub-element that you're downloading that to a browser.

[00:22:33] Speaker 00:
Now, we of course knew that our system doesn't operate in that traditional way of a web browser, so it was not surprising to us that that is absent there.

[00:22:45] Speaker 00:
Now,

[00:22:46] Speaker 00:
They now, later on, two years later, said, no, no, we meant that here, it's implicit somewhere, that when it's transmitted, it's transmitted to the operating system.

[00:22:58] Speaker 00:
Now, there was always an operating system, even in a traditional browser system.

[00:23:03] Speaker 00:
But that's not what the browser was in the invention.

[00:23:06] Speaker 00:
So that didn't tell us that they are saying in this instance, it's actually the operating system itself that is the browser that was never informed to us.

[00:23:17] Speaker 01:
Of course.

[00:23:18] Speaker 01:
What about the reference to the preamble portion of this?

[00:23:23] Speaker 00:
You know, Your Honor, there, I think that they're simply grasping the straw as any reference to Android.

[00:23:29] Speaker 00:
Of course, there are references to Android throughout this because there were two sets of infringement contentions, one for the Android system and one for the iOS system.

[00:23:40] Speaker 00:
And so, you know,

[00:23:41] Speaker 00:
page one of Exhibit A says, you know, infringement contentions for AdMob Android.

[00:23:46] Speaker 00:
And it's in the headings of the infringement contentions against AdMob for Android.

[00:23:52] Speaker 00:
There are lots of references to Android because, as counsel indicated with respect to the contention on 4464.

[00:24:00] Speaker 01:
This language provides a downloadable software development kit, blah, blah, blah.

[00:24:06] Speaker 01:
within their apps which run on Android.

[00:24:10] Speaker 01:
That's not enough to say.

[00:24:11] Speaker 00:
That's not enough.

[00:24:12] Speaker 00:
Run on Android is true because the operating system that undergirds the whole environment is Android.

[00:24:21] Speaker 00:
We know that.

[00:24:21] Speaker 00:
No one's confused about that.

[00:24:24] Speaker 00:
The question is, what operates as that program in between the operating system and the page on which the page is being disclosed?

[00:24:33] Speaker 00:
Now, I'd really like to draw the court's attention to page 16 of the blue brief, which was where, in their opening brief, they tried to identify where it was that they had let Google know, put Google on notice of this accusation that it's the operating system that's acting as the browser, the accused browser.

[00:24:54] Speaker 00:
In the chart there are four specified, and then underneath there's also three additional.

[00:25:00] Speaker 00:
So a total of seven places where they said this was disclosed.

[00:25:05] Speaker 00:
Of those seven, five merely say that something is transferred to or displayed on the client device.

[00:25:14] Speaker 00:
This is the epitome of broadly, generally alleging infringement so that we can fill that empty vessel up later on when we figured it out.

[00:25:25] Speaker 00:
And that's what the local pattern rules in Northern District of California are designed to prevent.

[00:25:31] Speaker 00:
anything.

[00:25:32] Speaker 00:
You could put anything into the client device.

[00:25:35] Speaker 00:
Is the operating system part of the client device?

[00:25:37] Speaker 00:
Yeah.

[00:25:38] Speaker 00:
But so is everything else, your honor.

[00:25:41] Speaker 00:
So we didn't know.

[00:25:42] Speaker 00:
And of course, we didn't expect that they would have something to identify because it doesn't operate the way that they're really kind of old technology invention did with

[00:25:53] Speaker 00:
you know, Internet Explorer operating on Windows.

[00:25:57] Speaker 00:
Of course, there are certain instances where that's still true today.

[00:26:01] Speaker 00:
Google Chrome operates on an Android system.

[00:26:04] Speaker 00:
Internet Sapphire works on an Apple iOS system.

[00:26:08] Speaker 00:
Those are browsers that work on those systems.

[00:26:12] Speaker 00:
But that's not what they've identified.

[00:26:14] Speaker 00:
They didn't identify anything.

[00:26:15] Speaker 00:
And in 02 micro, the court made clear that if you can't present evidence, here they can't because it was properly struck by the judge when it was attempted to be introduced,

[00:26:26] Speaker 00:
in the expert report in support of an infringement contention that was disclosed in the operative infringement contentions, and here there is none, this report specifically said there is no browser identified in the infringement contentions, then they can't succeed on their case.

[00:26:43] Speaker 00:
That's when JMAAL is appropriate, and that is indeed appropriate here too.

[00:26:48] Speaker 00:
That would be an independent ground for affirmance, but the court can equally affirm on the alternative ground of the claim construction, which I'd like to reach right now.

[00:27:01] Speaker 00:
The claims refer, or not the claims, the specification refers throughout it to a unique browser identity.

[00:27:09] Speaker 00:
Now, you need the adjective unique to modify identifier because identifier does not in its own connote uniqueness.

[00:27:18] Speaker 00:
In the claims, they do something differently.

[00:27:20] Speaker 00:
They don't use unique browser identifier.

[00:27:23] Speaker 00:
They just simply say browser identity.

[00:27:25] Speaker 00:
The identity connotes uniqueness already.

[00:27:28] Speaker 00:
But we're not relying exclusively on the connotation of identity.

[00:27:34] Speaker 00:
It's the fact that these claims don't work without that notion.

[00:27:38] Speaker 00:
What they provide is, and this is as claimed in the abstract and in the summary of argument, this precision targeting system that allows you to track what ad has already been seen by a browser so you can send it another.

[00:27:56] Speaker 00:
And it does that through records.

[00:27:58] Speaker 00:
And those records are recorded from the browser with its browser identity, with the ad identity,

[00:28:05] Speaker 00:
and the timer timeout.

[00:28:07] Speaker 00:
Now we know, and this is at column two on page 148 of the claim 20, the new claim 20, that each ad content having ad identity.

[00:28:18] Speaker 00:
So we know ad identity is unique for each ad.

[00:28:22] Speaker 00:
And we also know that each ad content having ad identity and an individual timer for timing out.

[00:28:31] Speaker 00:
So it also has an individual timer.

[00:28:33] Speaker 00:
So this record that's being reported to the central server, we know that it has individual ad identity, it has individual timeout information, and it has browser identity.

[00:28:47] Speaker 00:
That file is then what it allows in the thing that makes this patentable when it went through re-exam and they reissued, they added the last element of the claims.

[00:28:59] Speaker 00:
The last element of claim 20 is transmitting to the reporting browser

[00:29:05] Speaker 00:
an internet address for new ad content.

[00:29:09] Speaker 00:
So you, one, have to know which is the browser that has already reported this to me.

[00:29:15] Speaker 00:
Because I'm going to report it.

[00:29:16] Speaker 00:
I'm going to transmit something back to it.

[00:29:18] Speaker 00:
So you have to know which one has transferred this.

[00:29:21] Speaker 00:
And you have to know that this browser to which I'm transferring it hasn't yet had this ad, because I'm transferring to it a new ad.

[00:29:31] Speaker 00:
All of that is in the claim language, and I haven't even got yet to the spec, because unique browser identifier is all over the spec.

[00:29:43] Speaker 00:
And I think, Your Honor, you pointed to the abstract, because abstract is clearly relevant in understanding what the inventor thought they claimed, and they reference unique

[00:29:54] Speaker 00:
browser identifiers throughout, as well as maintaining these records that are associated with the unique browser identifier, indicating ads displayed and ads available for display, and then dispatching to those browser identifiers the right ad content.

[00:30:12] Speaker 00:
And in the summary of invention, not only does it refer repeatedly, including in column three where the district judge relied on

[00:30:20] Speaker 00:
to the unique browser identifier that is tracked by the central system, but also to the fact that this enables this very highly tailored, targeted advertising, which you simply can't have if the world is divided into two browser identities, one for Android and one for iOS.

[00:30:46] Speaker 00:
It doesn't work.

[00:30:47] Speaker 00:
Thank you, Your Honors.

[00:30:48] Speaker 03:
Thank you, Counsel.

[00:30:51] Speaker 03:
These guys are his...

[00:30:59] Speaker 04:
Thank you, Your Honors.

[00:31:00] Speaker 04:
Taking up first the Advertising ID Amendment, the District Court did not find that Google produced the code necessary to reveal how Advertising ID actually operated within the AdMob system.

[00:31:17] Speaker 04:
That is, that it was transferred within an advertisement request

[00:31:21] Speaker 04:
and ultimately recorded along with the ad content.

[00:31:25] Speaker 04:
It only found that it disclosed basic use and functionality of advertising ID, meaning that it disclosed it may be used in the ad mob system to uniquely identify, but not that it was used in the way implicated by the patent claims.

[00:31:44] Speaker 04:
And that's an important distinction because the code here, in fact, does not reveal that advertising ID is used in the way the patent claims.

[00:31:54] Speaker 04:
At most, it hints that it's used with regard to this proprietary confidential parameter that we're calling the security parameter.

[00:32:03] Speaker 01:
Just to make sure I understand the facts correctly.

[00:32:06] Speaker 01:
You discovered this, right, when the 30 v 6 deposition occurred.

[00:32:11] Speaker 01:
That's when this was discovered.

[00:32:13] Speaker 01:
Is that right?

[00:32:14] Speaker 04:
The only evidence revealing that advertising ID is transmitted in an advertisement request and recorded with the ad content is the deposition testimony.

[00:32:27] Speaker 04:
There is nothing in the code that reveals that actually happens.

[00:32:32] Speaker 04:
And as a result, when Google represented that it had produced all of the code and that the only code it had produced indicated that at most advertising ID was used by Google for purposes of monitoring or tracking security issues.

[00:32:49] Speaker 04:
and security has nothing to do with the patent, we had no reason to believe that advertising ID was used in the way the patent implicates.

[00:32:58] Speaker 01:
So, but a lot of this is going to hinge on our review of the district court's diligence finding, right?

[00:33:05] Speaker 04:
That's correct, Your Honor.

[00:33:08] Speaker 04:
Moving to the claim construction issue.

[00:33:10] Speaker 03:
I think we're moving to the end, counsel.

[00:33:13] Speaker 03:
Yes.

[00:33:13] Speaker 03:
The red light is on.

[00:33:14] Speaker 04:
Two very quick points, thank you, your honor.

[00:33:16] Speaker 04:
With regard to the claim construction issue, the purpose of targeted advertising isn't claimed in the claims themselves.

[00:33:23] Speaker 04:
And a number of other benefits or uses of the patent is described in the specification.

[00:33:30] Speaker 04:
There's no requirement that every claim meet every potential objective of the patent itself.

[00:33:37] Speaker 03:
And your second point?

[00:33:38] Speaker 04:
And my second point, Your Honor, is with regard to the browser identifier, the reason that we pointed to the client device portions of the claim charts was precisely Your Honor's question.

[00:33:49] Speaker 04:
That when we said Google Play Store on Android and when we said that the page was transferred to Android, we weren't talking in that instance of the generic Android environment.

[00:34:00] Speaker 04:
We were talking about Android on the client device.

[00:34:03] Speaker 04:
And that is the operating system.

[00:34:06] Speaker 03:
We have the case submitted.

[00:34:11] Speaker 02:
The audible court is adjourned until tomorrow morning at 10 o'clock a.m.