[00:00:00] Speaker 00:
Next case for argument is 20-1566, in-rate personal web technologies.

[00:00:06] Speaker 00:
Mr. Underwood, whenever you're ready.

[00:00:09] Speaker 01:
Thank you, Your Honor.

[00:00:09] Speaker 01:
May it please the Court?

[00:00:10] Speaker 01:
And good morning.

[00:00:11] Speaker 01:
There are four issues before the Court in this case today, two issues of claim construction and two issues of summary judgment of non-infringement.

[00:00:20] Speaker 01:
And I suppose I'll take the claim construction issues first.

[00:00:23] Speaker 00:
Can I just ask you a housekeeping question at the beginning?

[00:00:30] Speaker 00:
What do we need to decide and what if we decide against you resolves the entire case?

[00:00:38] Speaker 01:
Well, Your Honor, so the only issue that addresses would address the entire case is the claim construction of the unauthorized or unlicensed claim term.

[00:00:45] Speaker 01:
That addresses all three of the claims that are currently asserted.

[00:00:48] Speaker 01:
The two summary judgment issues, one of them hits two of the claims

[00:00:52] Speaker 01:
The other one hits two of the claims.

[00:00:55] Speaker 01:
So if both of those were resolved against us, that would resolve the case.

[00:00:58] Speaker 01:
Otherwise, the only issue that is completely case-disposited is the claim construction of unauthorized or unlicensed.

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

[00:01:06] Speaker 01:
OK.

[00:01:06] Speaker 01:
So Your Honor, as I said, I'd like to begin with the claim construction, and in particular with the construction of unauthorized or unlicensed.

[00:01:13] Speaker 01:
Because as I said, that's the only issue that is potentially completely dispositive of the case.

[00:01:18] Speaker 01:
Now, the claim term, which appears in all three claims, recites

[00:01:23] Speaker 01:
unauthorized or unlicensed.

[00:01:25] Speaker 01:
That is a disjunctive term in the A or B format.

[00:01:30] Speaker 01:
Now, this court has had decades of precedent and many, many cases holding that when a claim term recites A or B in the disjunctive format, A and B are alternatives to each other.

[00:01:42] Speaker 03:
But here... Mr. Underwood, this is Judge Lorry.

[00:01:46] Speaker 03:
If you look at the 310 patent, it says a licensee is a user authorized to have access

[00:01:53] Speaker 03:
through an object.

[00:01:55] Speaker 03:
The patent itself equates these terms.

[00:02:01] Speaker 01:
Well, Your Honor, first of all, there are places where the term authorized is used in the same sentence or in the vicinity of the word licensed.

[00:02:09] Speaker 01:
That's true.

[00:02:10] Speaker 01:
But that makes grammatical sense, because as we pointed out in our briefs, as a matter of plain English, unauthorized is a broader term than unlicensed.

[00:02:19] Speaker 01:
Unauthorized and the parties don't

[00:02:21] Speaker 03:
But in the context of licenses, a license grants authorization.

[00:02:28] Speaker 01:
Correct.

[00:02:28] Speaker 01:
Right.

[00:02:29] Speaker 01:
And so license is a subset or a species of the 310 patent says is definitional.

[00:02:37] Speaker 01:
Your Honor, I don't believe that there is an express definition of unauthorized to be equivalent to unlicensed anywhere in the specification of the patent.

[00:02:44] Speaker 01:
And not even the district court found that there was an express definition.

[00:02:48] Speaker 01:
The district court relied on the, quote, interchangeable use of the terms unauthorized and unlicensed in the specification.

[00:02:56] Speaker 01:
Now, as an initial matter, we disagree that there is interchangeable use of the two terms.

[00:03:00] Speaker 01:
And when I was getting ready for the argument today, I went through the specification and I saw that the term license appears 25 times or variance of license.

[00:03:09] Speaker 01:
The terms authorized or variance appear nine times.

[00:03:12] Speaker 01:
So two out of the three times, the terms aren't even used together, which doesn't suggest interchangeability.

[00:03:20] Speaker 01:
Sorry.

[00:03:21] Speaker 03:
That's not just sloppy drafting?

[00:03:24] Speaker 01:
I don't think it was sloppy, Your Honor.

[00:03:26] Speaker 01:
I think it makes perfect sense.

[00:03:28] Speaker 01:
And if you look at the few instances they cite where license and authorized are used close to each other, it makes grammatical sense.

[00:03:36] Speaker 01:
So it'll say, for example, here's a license table.

[00:03:40] Speaker 01:
and the licensee is someone who is authorized.

[00:03:42] Speaker 01:
Well, that's true, because again, authorization is a broader term than licensing.

[00:03:47] Speaker 01:
So grammatically, those make sense.

[00:03:49] Speaker 01:
And I think more importantly, in Thorner, this court set out a pretty clear standard for claim construction, which is the patentee is entitled to the full scope of the claims as written under plain meaning, unless one of two things occurs.

[00:04:04] Speaker 01:
One, there's an express disavowal, not an implicit disavowal, an express disavowal,

[00:04:09] Speaker 01:
or two, the patentee acts as its own lexicographer.

[00:04:13] Speaker 01:
Now, neither of those things happened here, and the district court didn't even find that either of those things happened.

[00:04:18] Speaker 01:
They never found that we disavowed the full scope of unauthorized, and they never found that we defined unauthorized and unlicensed to mean the same thing.

[00:04:25] Speaker 01:
Instead, the district court relied on the so-called interchangeable use.

[00:04:29] Speaker 01:
Now, I disagree that there is interchangeable use, but even if there was, the only case that the district court relied on to say that that matters was the Baran case.

[00:04:39] Speaker 01:
But in the Buran case, the two alleged interchangeable terms did not appear in the same disjunctive claim limitation.

[00:04:46] Speaker 01:
They appeared completely separate parts of the claim.

[00:04:49] Speaker 01:
So I think it is a massive stretch to say that you can go from quote unquote interchangeable use to suddenly saying that the two halves of a disjunctive claim term mean the same thing.

[00:05:00] Speaker 01:
And in our view, that would take away from the public notice function of patents because now

[00:05:07] Speaker 01:
The public would need to dive into the specification and try to see, okay, how interchangeable was the use?

[00:05:14] Speaker 01:
Am I really going to think that A really means the same thing as B?

[00:05:18] Speaker 01:
We don't think that's a workable standard, Your Honors.

[00:05:22] Speaker 01:
We think the workable standard is when a patent claim uses the terms A or B, it means what it says.

[00:05:28] Speaker 01:
They are alternatives.

[00:05:30] Speaker 01:
And here, one of the alternatives is unauthorized.

[00:05:33] Speaker 01:
And we do believe that... This is Judge Rayna.

[00:05:36] Speaker 04:
Why is it that OR has to be an alternative and not just simply signify that you have synonyms here?

[00:05:45] Speaker 01:
Well, I think that's been the holding of this court in many, many cases, Your Honor, including the Schumer case where this court said it has consistently held that OR denotes alternatives.

[00:05:54] Speaker 01:
And again, I think that goes back to the public notice function of patents.

[00:05:58] Speaker 01:
Everyone reading a patent, especially in view of this court's

[00:06:01] Speaker 01:
authority on the issue sees or certainly when I see or in a patent claim I think alternatives the claim is satisfied if you do A or B and I don't believe there's ever been a case of this court certainly wasn't cited by appellees and when we didn't find any where or in a patent claim was found to just mean synonyms they did find the Supreme Court case on statutory construction but that was entirely different that was operating under the narrow presumption of

[00:06:30] Speaker 01:
Congress's limited intent to preempt state law.

[00:06:32] Speaker 01:
In a patent claim, the rule is you get the full scope unless there's expressed as a vowel.

[00:06:36] Speaker 01:
And the full scope of an or term is both elements.

[00:06:41] Speaker 01:
So, Your Honors, I'd like to move on now to the next claim construction.

[00:06:46] Speaker 01:
I'd like to move on to the next claim construction issue, which is the construction of content-dependent name.

[00:06:51] Speaker 01:
Now, this court already addressed essentially the same exact language in the Apple case, 848F3 at 989.

[00:07:00] Speaker 01:
Now there, PersonalWeb was on the opposite side of the issue.

[00:07:03] Speaker 01:
PersonalWeb was arguing that the claim should require using all of and only the data in the data item, but PersonalWeb lost.

[00:07:12] Speaker 01:
So now that's the law of the land.

[00:07:14] Speaker 01:
That was a binding, precedential decision with a decisive effect.

[00:07:19] Speaker 01:
So we think this court should and must follow its prior decision in Apple and hold that the at least some of

[00:07:28] Speaker 01:
and at least in part language with respect to content dependent name does not require using all of and only the data in the data item.

[00:07:37] Speaker 01:
And the district court based its contrary finding on a finding of prosecution history disclaimer.

[00:07:43] Speaker 01:
But the disclaimer there was allegedly happened in a parent application.

[00:07:47] Speaker 01:
Now this court's law is clear from a mega engineering that the disclaimer from a parent only applies if the claim language is identical.

[00:07:55] Speaker 01:
And here the claim language could not have been more different.

[00:07:58] Speaker 01:
So we submit that the construction of all of and only should also be reversed and should be construed in accordance with the plain meaning of the claim.

[00:08:07] Speaker 01:
Moving on to the summary judgment issues, first I will take the permitting or allowing claim term, which appears in claim 20 of the 310 patent and claim 11 of the 442 patent.

[00:08:17] Speaker 01:
Now, the district court found at appendix page 50 that the operation of the accused servers is undisputed on this point.

[00:08:25] Speaker 01:
So then, the question of infringement boils down to the legal question of, does the undisputed operation read on the claims?

[00:08:32] Speaker 01:
Now, the undisputed operation is this.

[00:08:35] Speaker 01:
The accused servers receive a conditional GET request from a cache that wants to serve a stale or expired file to a browser.

[00:08:44] Speaker 01:
Now, in that conditional GET request, the cache sends the ETAG of the cached file.

[00:08:50] Speaker 01:
The accused server compares the ETAG of the cache file against the ETAG of the current file on the server.

[00:08:57] Speaker 01:
If they match, that means the file hasn't changed.

[00:08:59] Speaker 01:
The server sends a 304 not modified message.

[00:09:02] Speaker 01:
If they don't match, that means that it has changed.

[00:09:05] Speaker 01:
So the server sends a 200 OK message.

[00:09:08] Speaker 01:
Now the key point is that under the HTTP specification, it is mandatory that if the server sends the 200 OK, meaning that the file has changed, the cache must

[00:09:19] Speaker 01:
serve the new version of the file and may not serve the old version.

[00:09:23] Speaker 01:
And that's at appendix page 5733, which is the HTTP specification.

[00:09:29] Speaker 01:
At the same time, the cache cannot serve the old version of the file until it checks back with the origin server and receives the 304 not modified.

[00:09:40] Speaker 01:
And that's at appendix page 5783, which is again the HTTP specification, which says, when a cache has a stale entry that it would like to use as a response, it first has to check with the origin server to see if the entry is still usable.

[00:09:56] Speaker 01:
So in combination, the message that the accused server sends

[00:10:01] Speaker 01:
either permits the cash to serve the old file, that's if it sends the 304 message, or it does not permit the cash to serve the old file, if it serves the 200 message.

[00:10:11] Speaker 01:
And that reads on the claims, your honor, which is all that's required.

[00:10:14] Speaker 01:
And again, we're dealing with an appeal from a summary judgment of non-infringement.

[00:10:18] Speaker 01:
So all that's required is sufficient evidence for any reasonable jury to find infringement, and we submit that there was.

[00:10:25] Speaker 01:
Finally, I'd like to move on to the determining whether a copy was present, claim limitation,

[00:10:31] Speaker 01:
That appears in claims 10 and 11 of the 442 patent.

[00:10:35] Speaker 01:
Now, appellees in their briefs make a lot of arguments about what the ETag comparison on the origin server doesn't do.

[00:10:43] Speaker 01:
They say it doesn't locate a file.

[00:10:46] Speaker 01:
But the claims don't require using the ETag comparison to locate a file.

[00:10:50] Speaker 01:
They only require determining whether a copy is present.

[00:10:54] Speaker 01:
And that is exactly what the ETag comparison does.

[00:10:57] Speaker 01:
It compares the old ETag to the new ETag.

[00:11:00] Speaker 01:
And if the ETags match, the files are the same, which means they are copies.

[00:11:05] Speaker 01:
And Your Honors, that is all that is required in order for the claim to be satisfied.

[00:11:10] Speaker 01:
So we submit that there is sufficient evidence in the record for the summary judgment to be reversed, and that decision should be reversed as well.

[00:11:19] Speaker 01:
I've preserved the remaining time.

[00:11:22] Speaker ?:
Thank you.

[00:11:23] Speaker 00:
Let's hear from the other side, Mr. Haddon.

[00:11:27] Speaker 02:
Yes, good morning.

[00:11:29] Speaker 02:
May it please the court, Dave Haddon for Amazon and Twitch.

[00:11:33] Speaker 02:
There is nothing in the key features of the HTTP protocol that determines whether content is authorized or unauthorized.

[00:11:44] Speaker 02:
There is nothing in the HTTP protocol that permits or does not permit access to content.

[00:11:52] Speaker 02:
HTTP is anonymous.

[00:11:55] Speaker 02:
The protocol assumes that everybody gets what they ask for.

[00:12:00] Speaker 02:
The client browser gets whatever it asks for from any server, and the server provides that content to any browser that asks for it.

[00:12:09] Speaker 04:
Now, there are... Counsel, this is Judge Raina.

[00:12:12] Speaker 04:
In that regard, where you're at now, does this, does a finding of PAN eligibility here

[00:12:20] Speaker 04:
pose any or significant problems of preemption?

[00:12:27] Speaker 02:
Yes.

[00:12:28] Speaker 02:
What Persil Web is reading these claims on in this case, and it's kind of indicative from the MDL where we had 80 companies whose only common kind of activity was that they hosted websites.

[00:12:46] Speaker 02:
So basically, PersonWeb is now trying to read this pattern on a standard feature of the HTTP protocol with respect to how caches are controlled and updated using eText.

[00:13:01] Speaker 02:
So yes, they're basically claiming a big chunk of the web.

[00:13:07] Speaker 02:
But what they're claiming that the web does does not have anything to do with authorizing access to content.

[00:13:16] Speaker 02:
Now, to be clear, there are optional features in HTTP that allow a web server to authorize a user.

[00:13:25] Speaker 02:
But those are not accused in this case.

[00:13:27] Speaker 02:
What is accused is the generic use of caches and e-tags.

[00:13:32] Speaker 02:
Now, caches are an efficiency mechanism, right?

[00:13:36] Speaker 02:
It's a way to reduce the number of requests that have to go to a server and the amount of data that has to be sent back and forth across the internet.

[00:13:46] Speaker 02:
But that's all they are.

[00:13:47] Speaker 02:
They're just a mechanism to allow a browser to more efficiently give or display the content to the user.

[00:13:56] Speaker 02:
And ETags are just a mechanism to make that caching more effective.

[00:14:00] Speaker 02:
They're not used to control access to content or determine whether content is authorized.

[00:14:07] Speaker 02:
And it's kind of a simple point, which is when a browser does one of these conditional GET requests, they're basically asking the server to give me this object at this URL if it's different than the one you already gave me.

[00:14:24] Speaker 02:
And when the web server makes that determination, it's not

[00:14:29] Speaker 02:
reneging the permission for the browser to have access where it has already been provided by the server.

[00:14:38] Speaker 02:
The browser and the user can do whatever they want with that content that had been previously provided.

[00:14:46] Speaker 02:
And in fact, the HTTP protocol requires the browsers make that stored content available to the user when the user uses their back button

[00:14:58] Speaker 02:
but looks at their history log.

[00:15:00] Speaker 02:
And this is at appendix 5797.

[00:15:03] Speaker 02:
And it requires that browsers basically ignore those expiration dates when the user wants to look at their browse history.

[00:15:12] Speaker 02:
So the user has the object.

[00:15:14] Speaker 02:
Nothing is not permitting the user to access the object.

[00:15:18] Speaker 02:
And in fact, the ability for the user to continue to access those sales objects is required by the HTTP protocol.

[00:15:28] Speaker 02:
So as Judge Freeman correctly found, these claims require an affirmative, allowing, permitting, or not allowing, not permitting step.

[00:15:39] Speaker 02:
And those elements cannot simply be inferred from the entirely different functions in each of these products.

[00:15:46] Speaker 00:
Well, let me admit, Mr. Haddon, before your time runs up, could you turn back to where your friend began, which is on the claim construction question and what he

[00:15:57] Speaker 00:
characterizes as the common practice of subjective referring to alternatives?

[00:16:06] Speaker 00:
Yes, your honor.

[00:16:07] Speaker 02:
So using or in the disjunctive requires that the items in the list, the alternatives, are mutually exclusive.

[00:16:20] Speaker 02:
Apples or oranges is a proper use of or.

[00:16:26] Speaker 02:
Oranges or citrus fruit is not a proper use of or because oranges is then superfluous, right?

[00:16:34] Speaker 02:
It is as PersonalWeb argues a species of citrus fruit.

[00:16:40] Speaker 02:
But that is not a proper use of the disjunctive.

[00:16:43] Speaker 02:
So even if you're going to, you know, pretend that or is used here in the disjunctive, all that does is make

[00:16:52] Speaker 02:
other parts to claim language, in particular the or unlicensed superfluous.

[00:16:58] Speaker 02:
And what makes that explicit in their proposed construction, where they say unauthorized or unlicensed.

[00:17:05] Speaker 00:
So what is the point you are making, that if we use the principle of saying that we're reading them in this disjunctive, it violates another principle, which is you have to give meaning to every claim term?

[00:17:17] Speaker 02:
Exactly, Your Honor.

[00:17:17] Speaker 02:
So the consistent way to understand the or here

[00:17:21] Speaker 02:
is what Judge Rainer proposed and what the Supreme Court did in that Hawaiian Airlines case which is saying that these are alternative substitutes.

[00:17:30] Speaker 02:
They are synonyms that reinforce each other and that is confirmed by the specification because the only use of unauthorized throughout this patent is the context of the license table and the lack of a license or a valid license to the content.

[00:17:49] Speaker 02:
And as I think Judge Laurie indicated, and it's confirmed throughout the specification, the terms are used synonymously throughout, right?

[00:18:01] Speaker 02:
The licensee is the identity of a user authorized to have access to the object.

[00:18:07] Speaker 02:
And then in the track for licensing purposes, the patent says this mechanism ensures the license files are not used by unauthorized parties.

[00:18:19] Speaker 02:
So every use of authorized is in the context of a license.

[00:18:23] Speaker 02:
There is no other notion of authorized in this patent.

[00:18:28] Speaker 02:
And in fact, the title of the 442 patent is Enforcement and Policing of Licensed Content Using Content-Based Identifiers.

[00:18:37] Speaker 02:
So the alternative mechanisms that PersonalWeb pointed to in the brief about,

[00:18:45] Speaker 02:
locked flags in the file system to prevent inconsistent rights to a file or designating part of a disk as read-only have nothing to do with authorizing or unauthorizing access to content.

[00:19:01] Speaker 02:
And none of those descriptions use the word authorized or unauthorized at all.

[00:19:08] Speaker 02:
There is a single concept here and the only consistent way to read the claim language without rendering parts of its superfluous is to treat that as a single concept as Judge Freeman correctly did.

[00:19:22] Speaker 02:
But even if you were going to adopt Personal West proposed construction,

[00:19:28] Speaker 02:
There is still no determination the content is not permitted or access to content is not permitted in the accused use of eTags in the HTTP protocol.

[00:19:41] Speaker 02:
That is, as Judge Freeman noted, eTags are just a versioning mechanism.

[00:19:47] Speaker 02:
And so under any construction, there is no infringement here.

[00:19:53] Speaker 02:
and on the determining whether a copy is present on a computer.

[00:19:59] Speaker 02:
It's useful, I think, to look at the claim, which is reproduced at the web brief, and it's Claim 10 of the 442 patent.

[00:20:08] Speaker 02:
And if you read this claim, it very closely tracks the licensing audit procedure described in the patent.

[00:20:16] Speaker 02:
And if you recall in the patent with these true names, every computer has this true name registry that lists all of the files on the computer by their name.

[00:20:28] Speaker 02:
Since the name is immutably tied to the content of the file, you can tell what the file is by its name.

[00:20:35] Speaker 02:
And so what this describes is if you're checking to see whether a file that requires a license has been violated, you provide the name.

[00:20:45] Speaker 02:
You then look and see, determine whether what computers have a copy of that file based on the name.

[00:20:52] Speaker 02:
And then you determine whether that file is authorized or unlicensed, right?

[00:20:58] Speaker 02:
So you're checking this, you're auditing the computer.

[00:21:01] Speaker 02:
Nothing like this is done on the web using eText.

[00:21:05] Speaker 02:
When the server compares the ETag for the current version of a file associated with a URL, it finds the file based on the URL, and then it just makes this comparison of its ETag with the one it received.

[00:21:24] Speaker 02:
But that comparison doesn't tell you anything about what other files are on the server.

[00:21:29] Speaker 02:
The server could have the old version of the file as well.

[00:21:33] Speaker 02:
it could have a different version of the file with a different URL, it tells you nothing about what's on the server.

[00:21:40] Speaker 02:
And in fact, it's funny.

[00:21:42] Speaker 02:
Below, personal web's expert said that when the two e tags do not match, that means there's a copy of the file on the server.

[00:21:52] Speaker 02:
And on appeal, personal web's lawyer is making the opposite argument, that when the two files match, that means there is a copy of the file on the server.

[00:22:01] Speaker 02:
But neither is correct.

[00:22:03] Speaker 02:
ETAGs are not used to determine what files are on the server.

[00:22:07] Speaker 02:
They're just used to determine two files that have already been located, whether they're the same or not.

[00:22:13] Speaker 02:
And even after that, there's no determination whether or not

[00:22:17] Speaker 02:
the copy of the file, whether it's on the server or not, is unauthorized or unlicensed.

[00:22:24] Speaker 02:
There's just nothing like that done in the HTTP protocol because there's nothing to do with determining whether content is authorized or permitted or not.

[00:22:35] Speaker 02:
It's just a mechanism for

[00:22:36] Speaker 02:
efficiently providing new content to browsers.

[00:22:40] Speaker 02:
And browsers can keep the old expired content.

[00:22:44] Speaker 02:
And in fact, that is contemplated and shown in the HTTP protocol in addition to the back button and the history mechanism, because even these very if none match requests that are being accused in this case, the HTTP protocol specifies that the browser

[00:23:05] Speaker 02:
can actually include multiple e-tags for all the prior versions that it has currently stored.

[00:23:12] Speaker 02:
And in that case, the web server compares its current e-tag against each of those and basically sends a new version only if it differs from any of the old versions that the browser already has.

[00:23:24] Speaker 02:
But that just confirms that nothing is not permitting the browser or the user to access the old versions of the content that the server has already provided to it.

[00:23:37] Speaker 02:
Mr. Hattie?

[00:23:38] Speaker 02:
Yes.

[00:23:39] Speaker 00:
I'm sorry.

[00:23:39] Speaker 00:
This is Judge Proust.

[00:23:41] Speaker 00:
Just a housekeeping question before your time comes out.

[00:23:45] Speaker 00:
I assume you don't disagree with your friend for the hypothetical I raised with him.

[00:23:51] Speaker 00:
on how all of the entire case, he led with claim construction.

[00:23:56] Speaker 00:
You led in your briefs with the summary judgment of non-infringement.

[00:24:01] Speaker 00:
But I assume you agree with him that the case could be resolved hypothetically on one claim construction question or alternatively on two of the summary judgment non-infringement claims?

[00:24:15] Speaker 00:
Absolutely right.

[00:24:19] Speaker 00:
Let me finish my question.

[00:24:21] Speaker 00:
This case is part of an MDL that has 80 plus cases.

[00:24:27] Speaker 00:
As far as you can tell, and I'll ask your friend to confirm on the other side, does how we were to hypothetically resolve this case matter or differ for any of the cases involved in the MDL?

[00:24:42] Speaker 00:
The answer is the same for all.

[00:24:44] Speaker 02:
The answer is the same.

[00:24:45] Speaker 02:
And actually, Your Honor, Judge Freeman entered judgment in the other, whatever, 80 cases, the customer cases.

[00:24:55] Speaker 02:
And personally, I've never appealed those judgments.

[00:24:59] Speaker 02:
So I believe at this point, the only cases that are still in play is the Amazon case and the Twitch case.

[00:25:08] Speaker 00:
OK, thank you.

[00:25:10] Speaker 02:
And just one last point on what matters and what doesn't matter.

[00:25:14] Speaker 02:
This content dependent name construction doesn't matter at all.

[00:25:19] Speaker 02:
It is not an issue.

[00:25:21] Speaker 02:
in the summary judgment order.

[00:25:23] Speaker 02:
Judge Freeman did not grant summary judgment on any claim element relating to that construction.

[00:25:31] Speaker 02:
So I'm not actually sure why it's in this appeal.

[00:25:35] Speaker 02:
And the ETAGs that issue here are calculated by hashing the entire content of the object.

[00:25:42] Speaker 02:
So they met the narrower requirement.

[00:25:45] Speaker 02:
So it's just kind of irrelevant to this appeal.

[00:25:52] Speaker 02:
Unless Your Honor has other questions, I will stop there.

[00:26:00] Speaker 00:
Hearing none, thank you, Mr. Haddon.

[00:26:02] Speaker 00:
Mr. Underwood, you've got your little time left.

[00:26:05] Speaker 01:
Thank you, Your Honor.

[00:26:06] Speaker 01:
Just to answer that last question, the construction of content-dependent name matters because it could affect personal web's ability to prove infringement in certain circumstances going forward.

[00:26:15] Speaker 01:
And also, of course, this is our one and only chance to appeal the adverse claim construction.

[00:26:20] Speaker 01:
Now, I also want to address the argument, which was made at length in the briefs and repeated in oral argument, that the specification does not disclose any authorizations that have nothing to do with licensing.

[00:26:31] Speaker 01:
Now, we listed a few in the briefs, but I want to bring the court's attention to two passages in the specification which further support that it is supported.

[00:26:40] Speaker 01:
First, at appendix 300, column 8, lines 37 through 41, the patent says,

[00:26:47] Speaker 01:
Region table 128 defines the rules for access to and migration of files among various regions within the local file system.

[00:26:57] Speaker 01:
So this region table is controlling access to files and it has nothing to do with licensing.

[00:27:03] Speaker 01:
If you then proceed to appendix page 307, column 21, line 17 through 21, the patent says, quote, if it is determined by inspecting the region table 128, that's the same one I just mentioned,

[00:27:16] Speaker 01:
that the file is in a cached region, then send a locked cache message to the corresponding cache server and wait for a return message.

[00:27:25] Speaker 01:
If the return message says the file is already locked, prohibit the opening, end quote.

[00:27:31] Speaker 01:
And this is all in the context of the open file mechanism.

[00:27:34] Speaker 01:
So this is specifically saying, look at this region table and have a cache server send the message that prevents opening a file, that prevents access to a file.

[00:27:44] Speaker 01:
This is access control that has nothing to do with licensing, and it also reads exactly on what the accused servers do.

[00:27:52] Speaker 01:
Now, Mr. Haddon said that nothing that the accused servers do revokes or reneges permission for, I believe he said, for a browser or a user to access the file.

[00:28:03] Speaker 01:
But what Personal Web is charging with infringement is what the cache does.

[00:28:08] Speaker 01:
And the HTTP standard treats caches and browsers separately.

[00:28:12] Speaker 01:
What a 200 message does is it tells a cache, you are not permitted to serve the old version of the file to the browser.

[00:28:21] Speaker 01:
And that makes sense because this request only happened when a user went on their computer and typed in, for example, www.twitch.com.

[00:28:30] Speaker 01:
Twitch wants to control when the user is going to see old versions of the file.

[00:28:35] Speaker 01:
So when the expires time that Twitch has set has expired,

[00:28:39] Speaker 01:
and they send a new version of the website, that must be displayed under the HTTP standard.

[00:28:44] Speaker 01:
We submit that reads on the claims.

[00:28:47] Speaker 01:
Now, Mr. Haddon also used the analogy of a claim that would say oranges or citrus, and then that would render oranges superfluous.

[00:28:56] Speaker 01:
And I don't disagree with that.

[00:28:57] Speaker 01:
And the claims as written do have a degree of redundancy in them, in that, yes, unlicensed is a subset of unauthorized.

[00:29:06] Speaker 01:
But when you have a claim like that, that recites a genus or a species, the rule is patentee is entitled to the full claim scope, absent disavowal.

[00:29:16] Speaker 01:
So in that case, you have to go with the broader genus alternative, not the narrower species alternative, because that's the only way to give the patentee their full scope.

[00:29:26] Speaker 01:
Mr. Haddon also mentioned what can happen with a back button on a user's computer, but as we say in the briefs, that's not what we're choosing of infringement in this case, and it couldn't be, because Amazon and Twitch don't control what a user does by clicking on their back button.

[00:29:41] Speaker 01:
What we accuse of infringement is the message that Amazon or Twitch send, the okay or not modified message, and that reads on the claims.

[00:29:54] Speaker 01:
Unless there are no further questions, Your Honor, for those reasons and the reasons stated, we would submit the judgment should be reversed and the case is remanded for trial.

[00:30:03] Speaker 00:
Perfect timing.

[00:30:04] Speaker 00:
Thank you.

[00:30:04] Speaker 00:
Both cases submitted.