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

[00:00:01] Speaker 04:
Our next case is Dyefan versus Target Corporation, 2021, 1725.

[00:00:06] Speaker 04:
Mr. Dahlberg.

[00:00:17] Speaker 02:
Did this report make a mistake with construing the claims as mean plus function claims when there is ample support in the claims and very intricate

[00:00:29] Speaker ?:
connections between the various components and structures.

[00:00:34] Speaker ?:
I'd like to talk just about two things.

[00:00:37] Speaker ?:
First, to go over the claims and the structure and the support that's in them, and also how target failed to reflect the presumption that means, I guess, 112 paragraph six doesn't apply because the claims oversight means.

[00:00:56] Speaker 02:
Target has criticized us for citing some pre-Wimson cases, but the law remains that the claims themselves can provide sufficient structure so that what 12 Paradox 6 is not appropriate.

[00:01:11] Speaker 02:
In Apple, for example, the court said, structure could be an acclaimed description of the operation, including its inputs, outputs, and connections.

[00:01:22] Speaker ?:
And the operations were just its functions, how,

[00:01:25] Speaker 02:
is achieved in the context of the invention.

[00:01:28] Speaker 04:
But Council, on at least 25 occasions here, we have the word application or code followed by a function.

[00:01:40] Speaker 04:
And why isn't it necessary that that function should be represented in the specification by structure or by an algorithm?

[00:01:52] Speaker 04:
I mean, isn't that basically

[00:01:53] Speaker 04:
What 1-12-6 is for?

[00:01:58] Speaker 02:
Well, Your Honor, so the claim itself can recite the algorithm in prose.

[00:02:02] Speaker 02:
And that's the situation that we have here.

[00:02:04] Speaker 02:
And additionally, the application is executed on a mobile device.

[00:02:10] Speaker 02:
The district court concluded that a mobile device is another not for a general purpose computer.

[00:02:17] Speaker 02:
And I think that that is very cost-effective.

[00:02:20] Speaker 03:
Counsel, I just wanted to ask you, what is your evidence for why the word code and why the word application is not a nonce word?

[00:02:33] Speaker 02:
The target's expert, Dr. Bullberg, said those were terms of art.

[00:02:37] Speaker 02:
And the law says that if a term has a well-understood meaning, that can be sufficient structure for the claims and the function.

[00:02:51] Speaker 03:
So you're saying that we look at how a person of ordinary skill in the art would understand a word and whether a pose would understand it to connote a class of structures.

[00:03:03] Speaker 03:
And your position is that code and application connote a class of structures.

[00:03:09] Speaker 03:
What evidence are you relying on for that?

[00:03:13] Speaker 02:
Dr. Goldberg, your expert.

[00:03:16] Speaker 03:
And do you want to tell us some of that evidence,

[00:03:19] Speaker 03:
Give us some of the testimony you're relying on.

[00:03:22] Speaker 02:
Yes.

[00:03:23] Speaker 02:
Hold on.

[00:03:24] Speaker 02:
Did I stay in my glasses?

[00:03:45] Speaker 02:
So Dr. Goldberg stated that

[00:03:50] Speaker 02:
application.

[00:03:51] Speaker 05:
Where are you reading from?

[00:03:54] Speaker 02:
So I'm reading from the appendix, and it's page 586.

[00:04:03] Speaker 02:
And that's lines, excuse me, 58 lines 4 through 6, also 59.

[00:04:12] Speaker 03:
Council, I apologize, but I couldn't hear the page number that you identified for us.

[00:04:18] Speaker 02:
Oh, I'm sorry.

[00:04:19] Speaker 02:
So the first site that we have is page 58.

[00:04:24] Speaker 02:
And that's lines four through six.

[00:04:27] Speaker 03:
Are you talking about a transcript page?

[00:04:33] Speaker 02:
Yes, it's 86.

[00:04:33] Speaker 02:
I'm sorry.

[00:04:35] Speaker 02:
That's the appendix page number.

[00:04:41] Speaker 05:
And page 58 of the transcript.

[00:04:45] Speaker 02:
Correct.

[00:04:45] Speaker 02:
Page 58 of the transcript.

[00:04:47] Speaker 02:
And then also page 59 of the transcripts.

[00:04:55] Speaker 03:
Are you pointing us to the language that says, is it fair to say an application is a term of art?

[00:05:00] Speaker 03:
Do you want to identify for us the specific language you're focusing on?

[00:05:07] Speaker 02:
Yes, Your Honor.

[00:05:08] Speaker 02:
I just want to just turn to it.

[00:05:31] Speaker 02:
So at 58 lines 4 through 6, the question is, so is it fair to say application is a term of art?

[00:05:39] Speaker 02:
His response was yes.

[00:05:42] Speaker 02:
On 59, the question was, would you consider display to be a term of art in the computer science field?

[00:05:49] Speaker 02:
And he said yes, both the noun and the verb.

[00:05:55] Speaker 05:
But what I'm confused about is I don't see

[00:05:59] Speaker 05:
how the term code or application defines a physical structure.

[00:06:07] Speaker 05:
I mean, they're both terms that are described by, they're software terms that describe what they do.

[00:06:15] Speaker 05:
They're described by their function.

[00:06:17] Speaker 05:
They're defined by their function.

[00:06:20] Speaker 05:
It's not like a term computer, which is a physical thing.

[00:06:27] Speaker 05:
So I guess I'm having difficulty understanding how this aspect of 112-6 is invoked where the term can't have any structure.

[00:06:44] Speaker 02:
So Your Honor, the application and the claim is configured to be executed on a mobile device.

[00:06:52] Speaker ?:
So it's not divorced and just kind of an abstract.

[00:07:01] Speaker 02:
of the mobile device.

[00:07:03] Speaker 02:
And so, for example, outputting visual information due to the mobile device and the admissions that we got from Cardi's expert about the graphical user interface and drivers that would work with the display that are loaded on mobile devices.

[00:07:19] Speaker 02:
Those together are sufficient to provide the output of visual information function

[00:07:28] Speaker 02:
that the court identified for the second group of claims.

[00:07:33] Speaker 03:
Counsel, isn't there a testimony that someone could buy an application off the shelf?

[00:07:40] Speaker 02:
Certain applications, yes.

[00:07:42] Speaker ?:
That's correct.

[00:07:43] Speaker ?:
So there are a number of conventional programs.

[00:07:46] Speaker ?:
We're not reporting to have invented a new protocol.

[00:07:52] Speaker 02:
We're using mainly this existing technology in a more efficient

[00:08:00] Speaker 02:
that we're not retraining the wheel.

[00:08:01] Speaker 03:
And the expert, the target's expert admitted that, right, that there are certain off-the-shelf, when you think about applications, an application is a list of instructions, and you can buy it off the shelf to achieve certain functions.

[00:08:21] Speaker 02:
Yes, yes, Your Honor.

[00:08:24] Speaker 04:
But then it's not worthy of patent, if an application

[00:08:29] Speaker 04:
reciting, providing for certain functions which are in the claim can be bought off the shelf, it's on sale.

[00:08:38] Speaker 04:
It's not subject eligible for patent.

[00:08:42] Speaker 03:
What if there's other?

[00:08:43] Speaker 02:
Your Honor, so it's not the entirety of the claim.

[00:08:46] Speaker 02:
It's a component that is being utilized.

[00:08:49] Speaker 02:
And it's, again, how will we utilize these various components to do targeted advertising is kind of the gist of the adventure.

[00:09:01] Speaker ?:
It's 924.

[00:09:02] Speaker 02:
Dr. Goldberg admitted that there were no software libraries.

[00:09:09] Speaker 02:
That a postita would have known to be used to generate messages based on information that is received.

[00:09:17] Speaker 02:
With respect to the purchasing.

[00:09:25] Speaker 02:
So again, also 924, transfer page 213

[00:09:32] Speaker 02:
was 4 through 14, and also transfer page 2, 11.

[00:09:40] Speaker 03:
You should probably give us the appendix pages.

[00:09:43] Speaker 02:
Oh, I'm sorry.

[00:09:44] Speaker 02:
It's appendix page 924.

[00:09:45] Speaker 02:
And here he's talking about standing office software.

[00:09:51] Speaker 05:
What page of the transfer?

[00:09:53] Speaker 02:
It's 2, 1, 1, line 9 through 2, 1, 2, line 1.

[00:10:00] Speaker 02:
And then 213 lives 4 through 14.

[00:10:10] Speaker 03:
Counsel, did you want to address the system claims?

[00:10:14] Speaker 02:
The system terms, I should say.

[00:10:16] Speaker 03:
Can I ask you one preliminary question?

[00:10:19] Speaker 03:
I understand the claims at issue that we're talking about have the application code term in them as well as the system term in them.

[00:10:27] Speaker 03:
Is that correct?

[00:10:28] Speaker 03:
Like, I'm looking for examples.

[00:10:30] Speaker 02:
I'm sorry.

[00:10:30] Speaker 02:
I didn't hear the last part.

[00:10:32] Speaker 02:
I heard the application.

[00:10:32] Speaker 02:
What was it?

[00:10:33] Speaker 02:
There was a second piece.

[00:10:35] Speaker 03:
Well, I was looking, for example, at claim 15 of the 292 patent.

[00:10:40] Speaker 03:
And I was saying that I think that claim, which I'm looking at as a representative claim, has both the system element in it as well as the code or app element in it.

[00:10:51] Speaker 03:
Is that correct?

[00:10:54] Speaker 02:
Yes, Your Honor.

[00:10:55] Speaker 02:
And with respect to the system claim,

[00:10:59] Speaker ?:
You have to look at the limitation in the context of the entire claim.

[00:11:04] Speaker ?:
I believe that the Apex case stands for that proposition.

[00:11:07] Speaker ?:
You don't look at this limitation in isolation.

[00:11:09] Speaker 02:
You have to have context for it.

[00:11:12] Speaker 02:
And so when you look at claim 25 and term 28 in particular, but in conjunction with claim 11, from which it depends, you really have what you have is a system that comprises part of an application where the application, when executed by a mobile device,

[00:11:28] Speaker 02:
is configured to, in part, receive an indication of user input on the mobile device, send a message from the mobile device to retrieve location-relevant information.

[00:11:40] Speaker 02:
It receives from a server a message with that information.

[00:11:45] Speaker 02:
It causes the mobile device to output via the mobile device the visual information that's based on the location-relevant information that was retrieved from the server.

[00:11:55] Speaker ?:
And then where it's lost,

[00:11:58] Speaker ?:
It's configured to output different visual information, but that actually has its own requirements.

[00:12:04] Speaker 02:
It's after indication that the user input is perceived.

[00:12:07] Speaker ?:
It's after output of visual information.

[00:12:10] Speaker ?:
And it's as the mobile device is moving in the building.

[00:12:13] Speaker ?:
So it's a very, very specific recitation.

[00:12:17] Speaker ?:
This is not something that's preempting all uses of the term application.

[00:12:22] Speaker 02:
And going to client 25 in particular, there,

[00:12:29] Speaker 02:
the system is configured such that the subsequent output of different visual information is caused without any additional user input.

[00:12:36] Speaker 02:
So that initial user input isn't necessary, again, to receive our message.

[00:12:41] Speaker ?:
So it's just adding on another detail, another requirement for this system.

[00:12:46] Speaker 02:
So partly it criticizes us for having very lengthy claims, but the result is that they're also very narrow.

[00:12:54] Speaker 02:
And they're very consistent.

[00:12:55] Speaker 03:
Council, can I ask you a question?

[00:12:57] Speaker 03:
Are you aware of any federal circuits holding that the preamble of a claim plus a later wherein clause that refers to the word in the preamble of the claim is written in 1, 12, 6-paragraph format?

[00:13:13] Speaker 02:
Your Honor, I don't have it on top of my head.

[00:13:18] Speaker 02:
I recall seeing some of my cases discussing the preamble, but I apologize.

[00:13:22] Speaker 02:
I don't remember the specifics.

[00:13:24] Speaker 02:
I can look for it.

[00:13:26] Speaker 02:
Bozen Castle's arguing.

[00:13:29] Speaker 02:
I did want to touch on one last thing.

[00:13:32] Speaker 02:
That's the failure to consider the prosecution history, the statements in the prosecution history that were made by the prosecution attorney that one plus six doesn't apply.

[00:13:41] Speaker 02:
And the court did not agree with that.

[00:13:45] Speaker 04:
That's a question of law.

[00:13:47] Speaker 04:
That's a question of law rather than the intent of the applicant, isn't it?

[00:13:53] Speaker 02:
It's part of the intrinsic record.

[00:13:57] Speaker ?:
That is true.

[00:13:58] Speaker 02:
And it's, I guess, for the court to decide how much weight is going to be given, I think that that's right.

[00:14:06] Speaker ?:
We took the position, you know, we're not saying that's dispositive, but we're saying it's one factor that should be considered in the analysis.

[00:14:13] Speaker 02:
And here, the district court did not consider it at all.

[00:14:17] Speaker 02:
They dismissed it based on the case law about subject

[00:14:27] Speaker ?:
Markman case noted that it's in the record that it can be considered.

[00:14:33] Speaker 02:
And here we think actually you should be given a fair amount of weight because the claim, in our view, a lot of structure already in it.

[00:14:40] Speaker 02:
And it's very specific in how the different elements operate together, the inputs, outputs, and how they're connected.

[00:14:48] Speaker 02:
And so I think that this is an example where that would tip the scale in favor of not having the presumption be overcome.

[00:14:57] Speaker 04:
Your time is almost totally exhausted, but we will give you two minutes back.

[00:15:09] Speaker 04:
Thank you so much.

[00:15:11] Speaker 04:
Mr. Tyson.

[00:15:27] Speaker 04:
Sorry to make you do some physical work here.

[00:15:29] Speaker 01:
That's right, I was in the Navy.

[00:15:32] Speaker 01:
I'm used to doing a little bit of physical work, so that's good.

[00:15:36] Speaker 01:
Keeps us on our toes.

[00:15:50] Speaker 01:
May it please the court, good morning, Your Honors.

[00:15:54] Speaker 01:
I'd like to start actually with

[00:15:56] Speaker 01:
Judge Soll with your question that you posed to Mr. Dahlgren, which is, why are code and application not a non-sword?

[00:16:06] Speaker 01:
And I think, as we put in our briefing, it's not that they could never, that code and application couldn't by itself describe

[00:16:19] Speaker 01:
a particular function, but that is only, the courts is very clear that- It's structure.

[00:16:24] Speaker 03:
The question is whether a person of ordinary scaling are carrying the word code or the word application or seeing it.

[00:16:32] Speaker 03:
We think it connotes a class of structures, right?

[00:16:35] Speaker 03:
That is the right test, right?

[00:16:36] Speaker 01:
Well, the test is, again, the test can be rebutted if the claim recites a function

[00:16:44] Speaker 01:
that does not recite sufficient structure to perform that function.

[00:16:47] Speaker 03:
I think the first step is this, okay?

[00:16:49] Speaker 03:
This claim doesn't say means plus function.

[00:16:52] Speaker 03:
It doesn't literally use the word means.

[00:16:54] Speaker 03:
So first, you have to see whether, even though it doesn't use the word means, and that means there's a presumption that 112.6 doesn't apply, even though it doesn't use the word means, would a person of ordinary family art, looking at that word, think that it, understand that it is a nonce term?

[00:17:13] Speaker 03:
that doesn't tell you any structure, or would they understand that code and application connote some sort of structure?

[00:17:22] Speaker 01:
And I think in certain cases, there's a number of cases actually that this court has examined the issue, whether it be the word program, whether it be the word appropriate programming, the word software, all of these types of words.

[00:17:37] Speaker 01:
And they say that in the context of a general purpose computer,

[00:17:44] Speaker 01:
If a general purpose computer is performing a general purpose computer function, then the word code executing on a processor.

[00:17:54] Speaker 01:
If you recite processor processing information, if you write code for a device to receive information,

[00:18:02] Speaker 01:
these are the type of general-purpose computer functions that can be used.

[00:18:04] Speaker 03:
What cases are you talking about?

[00:18:05] Speaker 03:
Because there's also cases like, I think it's zero-click, that have a different outcome.

[00:18:11] Speaker 01:
Yeah, and I can talk about zero-click a little bit.

[00:18:13] Speaker 03:
Zero-click is... Well, no, first, I want to know which cases you're relying on to say that

[00:18:19] Speaker 03:
When I see program for doing something, I should be thinking that it's a means plus function.

[00:18:24] Speaker 01:
Yes ma'am.

[00:18:24] Speaker 01:
I point to aristocrat at 1383.

[00:18:27] Speaker 03:
Was aristocrat written as means plus function or was it written as program for doing something?

[00:18:34] Speaker 01:
that term was written in a means plus function format.

[00:18:37] Speaker 03:
The claim itself, did it say means for doing something?

[00:18:41] Speaker 03:
It did.

[00:18:41] Speaker 03:
Okay, so you're looking at the second step.

[00:18:46] Speaker 03:
Just let me talk for a minute.

[00:18:47] Speaker 03:
Thank you.

[00:18:49] Speaker 03:
You've confused the first step with the second step.

[00:18:51] Speaker 03:
The first step is did this claim drafter choose to use

[00:18:56] Speaker 03:
one, twelve, six paragraph to write their claims.

[00:19:00] Speaker 03:
And we analyze that by determining whether oppose it.

[00:19:03] Speaker 03:
We look at the word and think it's a nonce term or not.

[00:19:06] Speaker 03:
It's not really something that you look to the specification for.

[00:19:09] Speaker 03:
But nonetheless, let's say it is a means plus function format.

[00:19:13] Speaker 03:
Then you have to take, you look at the function, you find the corresponding structure in the specification that performs that function.

[00:19:21] Speaker 03:
If it's software, there has to be an algorithm or the claim is indefinite.

[00:19:26] Speaker 03:
Just make sure that you're not confusing the two steps.

[00:19:29] Speaker 03:
They're different.

[00:19:30] Speaker 01:
They're distinct.

[00:19:31] Speaker 01:
And I think that this is, I mean, we talk a lot about the zero-click case because the appellant is taking the position that the zero-click case is saying that if I recite the word code that

[00:19:45] Speaker 01:
it is not announced for that user interface code.

[00:19:48] Speaker 03:
I agree with you on that.

[00:19:49] Speaker 03:
I don't know if I agree with you on that.

[00:19:52] Speaker 03:
But on the evidence in this case, there's evidence in this case that says application is something that returns something to a user.

[00:20:02] Speaker 03:
Code is, both of those are lists of instructions.

[00:20:07] Speaker 03:
There's evidence from your expert that says it can be bought off the shelf.

[00:20:11] Speaker 03:
I'm seeing there's evidence that a person with ordinary skill in art would know this is a term of art.

[00:20:17] Speaker 03:
There's some other quotes from your expert that suggest that these words aren't nonce terms, that in fact it might be a broad class of structures.

[00:20:27] Speaker 03:
But there's some structure associated with the word application and code.

[00:20:32] Speaker 03:
Again, this is not going first step.

[00:20:36] Speaker 03:
Is it a nonce term, or does it connote structure?

[00:20:39] Speaker 01:
The other cases that I would look at is Apple, the Apple case that we talked about.

[00:20:45] Speaker 01:
I understand, but do you want to address my question, or do you want to talk about the cases?

[00:20:50] Speaker 01:
Well, I was trying to answer your other question.

[00:20:51] Speaker 01:
So there is evidence in this case, and all of that evidence, it's extrinsic evidence, which I'll just point out that the appellant

[00:21:00] Speaker 01:
many, many times before the court said, it's unreliable.

[00:21:02] Speaker 01:
This is unreliable.

[00:21:03] Speaker 01:
He didn't look at the communication protocols.

[00:21:05] Speaker 01:
So now he's saying, OK, you should rely on this evidence.

[00:21:08] Speaker 01:
But what I will tell you is each of those- But this is your expert's evidence.

[00:21:11] Speaker 03:
This is your expert's testimony, right?

[00:21:13] Speaker 01:
It is.

[00:21:14] Speaker 01:
And each of those questions, Your Honor, were posed in the context of a vacuum.

[00:21:18] Speaker 01:
They weren't about this claim.

[00:21:19] Speaker 01:
They weren't about this specification.

[00:21:21] Speaker 03:
But I thought the question, I told you before, the question for whether it's written as a nonce term or written under 112,

[00:21:29] Speaker 03:
whether it connotes structure is whether a poso would understand the word to connote structure.

[00:21:35] Speaker 03:
So why isn't, I actually think our cases often rely on extrinsic evidence to answer that question.

[00:21:43] Speaker 03:
Expert testimony, technical dictionaries, things like that.

[00:21:47] Speaker 01:
And your honor, I guess it does not stop at that point because you have to look at, with software, you have to look at the function.

[00:21:53] Speaker 01:
You absolutely have to look at the function.

[00:21:55] Speaker 01:
You cannot just recite code for doing anything.

[00:21:58] Speaker 01:
and have it not be governed under means plus function.

[00:22:03] Speaker 03:
Your view is that the word code and the word application is just too nebulous to know what it is.

[00:22:10] Speaker 01:
No, it doesn't define a particular set of structures.

[00:22:14] Speaker 03:
Why does it have to, for purposes of just seeing this first part, which is whether the claim drafter intended to invoke 112.6 paragraph in drafting his or her claims.

[00:22:28] Speaker 03:
Why isn't it enough to say it connotes a class of structure?

[00:22:32] Speaker 03:
It's a list of written instructions.

[00:22:34] Speaker 01:
Even under the Apple case, Your Honor, even under the Apple case, when it's looking at this very first step, it says you have to disclose the inputs, the outputs, and how to achieve, how to accomplish the result.

[00:22:46] Speaker 01:
So that's what it's defining as the class of structures.

[00:22:50] Speaker 05:
And then it seems to suggest that you can

[00:22:54] Speaker 05:
avoid 112.6 by a sufficient description of the software so that you don't have to look to the specification to find the structure.

[00:23:07] Speaker 01:
I think that there are cases zero click is one case and where

[00:23:14] Speaker 01:
I mean, actually, zero-click case, you did look at the specification as well.

[00:23:18] Speaker 05:
You want to talk about zero-click?

[00:23:19] Speaker 05:
I'm asking about the Apple case.

[00:23:21] Speaker 01:
Oh, the Apple case.

[00:23:22] Speaker 01:
The Apple case also looks at the specification.

[00:23:25] Speaker 05:
That's what Judge Prost dissented about in that case.

[00:23:30] Speaker 05:
I thought the Apple case said, well, if you have enough description in the claim,

[00:23:36] Speaker 05:
about what it does that you don't get into a 112-6 situation.

[00:23:42] Speaker 01:
I think, Your Honor, that there are probably, I have not seen a case that has this yet, but if an applicant claims a program and recited the specific algorithm in that program or code for

[00:23:56] Speaker 01:
performing a function and then claim the algorithm, which the algorithm is a procedure for achieving the results stated in that function.

[00:24:05] Speaker 05:
Why isn't this, the claims here fall into that category of defining sufficiently an algorithm to define it?

[00:24:13] Speaker 01:
Essentially, the case, and we can look at probably, we could just look at that group two term, and that would be,

[00:24:34] Speaker 01:
in their briefing on, like the reply view, page five.

[00:24:40] Speaker 01:
That term is reproduced in its entirety.

[00:24:46] Speaker 01:
There's a few other places where it is reproduced.

[00:24:50] Speaker 01:
But this is the representative term for group five.

[00:24:56] Speaker 01:
And here, for the group two terms, and here, again, we have

[00:25:03] Speaker 01:
said code when executed on a mobile device.

[00:25:06] Speaker 01:
That is recited in the claim.

[00:25:09] Speaker 01:
And it recites that the function is caused to be output via that mobile device, second visual information based on second location relevant information.

[00:25:21] Speaker 01:
So the first question you have to ask is, how is second visual information output based on the received second location information?

[00:25:34] Speaker 01:
In that case, is it just outputting the second location relevant information?

[00:25:39] Speaker 01:
No.

[00:25:39] Speaker 01:
That's not what the claim says.

[00:25:41] Speaker 01:
It says, based on, is there another input that it needs to receive in order to do that?

[00:25:46] Speaker 01:
How does it generate or create this second visual information?

[00:25:50] Speaker 01:
Does it look it up?

[00:25:52] Speaker 01:
on the computer, on the mobile device?

[00:25:55] Speaker 01:
Does it have to generate independently?

[00:25:57] Speaker 01:
Is there other information that's needed?

[00:25:59] Speaker 01:
None of that is specified here.

[00:26:01] Speaker 01:
Then you have these other two limitations that are already in here.

[00:26:04] Speaker 01:
After the at least one mobile device is moved in the building and in response to the receipt of the second response message, what impact does the mobile device moving in the building have on the first visual information?

[00:26:21] Speaker 01:
I'm sorry, the second visual information.

[00:26:23] Speaker 01:
Does it change the output?

[00:26:25] Speaker 01:
Does it change what type of content that is?

[00:26:30] Speaker 01:
And here's a case where, like ZeroClick, in other cases, including the Edge and Error case, which I think is honestly the closest case to the facts here, you have to ask the question,

[00:26:45] Speaker 01:
How is the output achieved?

[00:26:47] Speaker 01:
How is this result achieved?

[00:26:50] Speaker 01:
And that question is not answered by any of the other functions.

[00:26:54] Speaker 01:
It's not answered by the fact that it receives a message according to a particular communication protocol.

[00:26:59] Speaker 01:
It's not answered based on

[00:27:03] Speaker 01:
that it's on a mobile device.

[00:27:04] Speaker 01:
In this case, even if we could say mobile device itself had a sufficient structure, when we look to the specification, and we do that in zero-click, we do that in Apple, we do that in Edge and Era, when we're looking at what this is doing, what you'll see is that

[00:27:21] Speaker 03:
The mobile device is said to be any device that has mobile communication capabilities.

[00:27:35] Speaker 01:
No, Your Honor.

[00:27:35] Speaker 01:
I think even the court, even Judge Albright was looking at this issue.

[00:27:40] Speaker 01:
No one's saying mobile device by itself is always a nonce word.

[00:27:43] Speaker 01:
Again, in this case, in this case, when you look at mobile device in the context of this patent,

[00:27:51] Speaker 01:
When I look at the specification, you say, OK, well, this is saying it doesn't really have a structure, because it could be a satellite.

[00:27:59] Speaker 01:
It could be a boat.

[00:28:01] Speaker 01:
It could be a phone.

[00:28:01] Speaker 01:
It could be all of these different things.

[00:28:03] Speaker 01:
But that doesn't end the inquiry, because you still have to look at the function.

[00:28:08] Speaker 01:
If this function... Can I interrupt for a minute?

[00:28:10] Speaker 03:
Yes, ma'am.

[00:28:10] Speaker 03:
So you're saying that, just hypothetically, any time I look at a claim,

[00:28:15] Speaker 03:
and it has a word like mobile device in it.

[00:28:18] Speaker 03:
I have to be careful because if I look to the specification and mobile device is very broadly defined in your example to include a boat or a satellite, that then I should know that that's written in 1,126 paragraph format.

[00:28:33] Speaker 01:
No, Your Honor, that's not what I'm saying because I'm saying that you still have to look at the function.

[00:28:38] Speaker 01:
So if it recited mobile device... Why do I have to look at the function?

[00:28:41] Speaker 03:
I thought our cases said that you're supposed to look at the word.

[00:28:44] Speaker 03:
that is this alleged substitute for means and determine

[00:28:49] Speaker 03:
whether it's a nonce term or whether a person of ordinary skill in the art would understand that term to connote a class of structures.

[00:28:57] Speaker 01:
Your Honor, that doesn't end.

[00:28:58] Speaker 01:
I mean, what is a nonce word?

[00:29:01] Speaker 01:
It has to be in context.

[00:29:02] Speaker 01:
It doesn't just mean a word.

[00:29:04] Speaker 01:
Like mobile device could be a nonce word if you were saying mobile device to build a house, configured to build a house, mobile device configured to.

[00:29:12] Speaker 01:
You have to know what the function is in order to answer the question of

[00:29:16] Speaker 01:
One, is it a nonce word?

[00:29:18] Speaker 01:
Or two, are we just claiming the general purpose computer?

[00:29:22] Speaker 01:
If this function, which is clearly not, if this function was a general purpose function, like receiving data, there are limitations in here where the mobile device receives data.

[00:29:33] Speaker 01:
We aren't alleging that those general purpose computer functions are written in means plus function format.

[00:29:39] Speaker 01:
We're saying when you have these special purpose computer functions, you can't just say code.

[00:29:44] Speaker 01:
And you can't say code executed on a mobile device.

[00:29:47] Speaker 01:
You have to provide, under Apple, you have to define how that result is achieved.

[00:29:55] Speaker 01:
How does it achieve the function?

[00:29:57] Speaker 01:
And that is just fundamentally with software.

[00:29:59] Speaker 03:
And I think that although the cases that I talked about... Do you think code configured to cause display is that?

[00:30:07] Speaker 01:
under your view then is that uh... announced term or not well that's not what this claim if it was just if it would if this claim came said said code configured to display received information i think it would be a much closer case as to whether this is means plus function this doesn't say that the problem here is that unlike uh...

[00:30:31] Speaker 05:
a situation where you've got physical structure, what the claim says, uses a word like code or application, is software.

[00:30:44] Speaker 05:
It's not a physical structure.

[00:30:47] Speaker 05:
So in a way, it seems to me that it's got to be defined by what it does and not by the structure.

[00:31:00] Speaker 05:
If it's defined in the claim sufficiently by what it does, I don't see why then it's a nonce term.

[00:31:10] Speaker 05:
Whereas, you know, where you have a physical structure, and then you say, oh, well, it's a means plus function claim because it's a nonce term for physical structure, and then these functional limitations lead you to one, well, six inquiry.

[00:31:29] Speaker 05:
look at the specification to see what the physical structure is that performs the function.

[00:31:35] Speaker 05:
Here, necessarily code or application is defined in terms of function.

[00:31:43] Speaker 01:
Do you understand what I'm saying?

[00:31:44] Speaker 01:
Yes, Your Honor, I 100% agree with you.

[00:31:46] Speaker 01:
And I think when you define in terms of function, you still have to

[00:31:51] Speaker 01:
according to, because software is defined in terms of function, in order to avoid 112.6, this is what the eGeneric case was looking at, which is very similar to this.

[00:32:01] Speaker 01:
And I know I'm over my time.

[00:32:02] Speaker 01:
Am I allowed to add?

[00:32:03] Speaker 04:
Finish with that.

[00:32:04] Speaker 01:
All right.

[00:32:04] Speaker 01:
Thank you.

[00:32:05] Speaker 01:
Thank you, Your Honor.

[00:32:06] Speaker 01:
This is a similar case, because that was looking at logic to modify and doing something.

[00:32:11] Speaker 01:
This is a case where we've got code, which in the specification, they treated code and logic the same.

[00:32:18] Speaker 01:
So it isn't just that.

[00:32:21] Speaker 01:
software terms are never governed by means plus function.

[00:32:24] Speaker 01:
There is a way that you can recite a software code for performing a function.

[00:32:33] Speaker 01:
You have to define the algorithm, you have to define under Apple,

[00:32:38] Speaker 01:
all of these cases you have to define how that result is achieved.

[00:32:41] Speaker 05:
Well when you're dealing with software in 112.6 it sounds to me very much as though you're trying to put a square peg in a round hole.

[00:32:47] Speaker 05:
The statute wasn't thinking of software when it talked about meat plus function and we're too far down that road to go back but it's very confusing.

[00:32:58] Speaker 01:
Yeah, Your Honor, I think when I've read the cases I feel like it's pretty clear that if an applicant wanted the draft

[00:33:07] Speaker 01:
a non-means fuzz function claim that had software, and I'm not just talking about an entire software, that they could do that if they specify an algorithm for achieving the results stated in that function.

[00:33:20] Speaker 01:
If they can do that, then it's not a non-means term.

[00:33:24] Speaker 01:
But if they don't do that, then you're left in the scenario where

[00:33:29] Speaker 01:
They're essentially saying, and this is the case in particular, when you look at the spec, there is no disclosure of how to do this.

[00:33:35] Speaker 01:
So you're left with, I invented this result.

[00:33:40] Speaker 01:
You guys figure out how to make it happen.

[00:33:43] Speaker 01:
We're going to exclude you from practicing this invention.

[00:33:47] Speaker 01:
But all I'm going to tell you is the result.

[00:33:49] Speaker 01:
I'm not going to tell you how to achieve it.

[00:33:50] Speaker 01:
And I think that's the problem.

[00:33:52] Speaker 01:
Yeah.

[00:33:52] Speaker 04:
Thank you, Mr. Tyson.

[00:33:54] Speaker 04:
I think we have your argument.

[00:33:56] Speaker 04:
Let's set up a rebuttal.

[00:34:33] Speaker 02:
Can you hear me?

[00:34:36] Speaker 04:
We can hear you.

[00:34:36] Speaker 02:
Welcome back.

[00:34:39] Speaker 04:
Oh, OK.

[00:34:40] Speaker 04:
I'm sorry.

[00:34:41] Speaker 02:
I'm sorry about that.

[00:34:43] Speaker 04:
Let me speak, please.

[00:34:44] Speaker 04:
We're going to give you three minutes for a bottle.

[00:34:48] Speaker 02:
Thank you very much.

[00:34:51] Speaker 02:
So with respect to Dr. Goldberg's admissions about unavailable products that come off the shelf, the appendix at 885

[00:35:05] Speaker 02:
And it's transcript page 57, lines 13 through 19.

[00:35:12] Speaker 02:
And then the second site is the following two pages, 886 and 87, and transcript page 60 through 64.

[00:35:27] Speaker 02:
So I wanted to address a few points.

[00:35:30] Speaker ?:
A aristocrat, it was a means term.

[00:35:34] Speaker 02:
So it's distinguishable on that basis.

[00:35:37] Speaker 02:
Also, we get willing to consider some of the other cases.

[00:35:40] Speaker 02:
I think the post-counsel said that Meganera was a close one.

[00:35:45] Speaker 02:
Meganera involved logic to modify, and it had no details on inputs, outputs, or connections whatsoever.

[00:35:52] Speaker 02:
And it also covered both physical and software solutions.

[00:35:58] Speaker 02:
Same thing with Williamson.

[00:36:00] Speaker 02:
There was a module

[00:36:03] Speaker 02:
And that covered both physical and software implementations.

[00:36:08] Speaker 02:
So it's much broader what we're creating than what we have.

[00:36:12] Speaker 02:
The point we were making about applications being a term of art is that it's an old software product.

[00:36:17] Speaker 02:
So it's not a hardware product that would cover more.

[00:36:23] Speaker 05:
Your contention is that while code alone might be a nonce word,

[00:36:29] Speaker 05:
that it's sufficiently defined by the claims here so that we know what its structure is in terms of an algorithm?

[00:36:37] Speaker 05:
Is that right?

[00:36:40] Speaker 02:
Yes, you are.

[00:36:41] Speaker 02:
That's correct.

[00:36:42] Speaker 05:
And they say the description is not sufficient to tell you what the algorithm is.

[00:36:47] Speaker 05:
What's your response to that?

[00:36:50] Speaker 02:
They haven't really identified what else you would need.

[00:36:54] Speaker 02:
I think there's countless times out there to talk about

[00:36:58] Speaker 02:
Receiving messages, sending messages, displaying information.

[00:37:02] Speaker 02:
And I don't believe that more is required for those basic functions that are present in the claims.

[00:37:10] Speaker 02:
So I think that there's a case law saying that it has to be commensurate with how complex the technology is.

[00:37:18] Speaker 02:
And here, I think it's pretty straightforward in terms of what we're doing.

[00:37:23] Speaker 02:
I also just want to point out, in Winston and Agenera,

[00:37:28] Speaker 02:
the functions that they identified were much more nebulous.

[00:37:31] Speaker 02:
In Wayne Center, it was coordinating the operation of a data module.

[00:37:37] Speaker 02:
And then in engineering, it was logic to modify.

[00:37:40] Speaker 02:
And that was it.

[00:37:42] Speaker 02:
So what's modified?

[00:37:43] Speaker ?:
What's coordinated?

[00:37:44] Speaker ?:
Here, we're sending messages, we're receiving messages, we're displaying information.

[00:37:48] Speaker 02:
It's much more specific than those cases.

[00:37:53] Speaker 02:
So with respect to

[00:37:57] Speaker 02:
the system claim, I just want to point out that the output, if you read both claims, claim 11 and claim 25, it's apparent that the application is doing the output again.

[00:38:12] Speaker 02:
And the system is comprised of all these different components, the broadcast units, the apps that are running on mobile devices, there's the server, and so there's

[00:38:25] Speaker 02:
much more, I guess, specificity in the claim.

[00:38:30] Speaker 02:
And with respect to, just generally, whether application code should be afterwards or not, you know, it's our position, it's still a fact-specific inquiry, so we're able to depend on the claim.

[00:38:42] Speaker 02:
But in this instance, we think we have enough detail in the claims about how the system would operate, how the different components interact, and you know, what it's doing,

[00:38:55] Speaker 02:
that it takes it out of the realm of 112 paragraph 6.

[00:39:01] Speaker 04:
Council, your time has expired.

[00:39:04] Speaker 04:
So we thank you.

[00:39:05] Speaker 04:
We thank you very much.

[00:39:06] Speaker 04:
And the case is taken under submission.