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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and its honorable court.

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

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We have a single case for argument this morning, number 20-1010, TJET Systems 2006 Limited versus Expedia Group, Inc.

[00:00:20] Speaker 00:
Mr. Yonai.

[00:00:23] Speaker 03:
Thank you, Your Honor.

[00:00:24] Speaker 03:
May it please the court.

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The term at issue here, virtual client entity, or we may shorten it to VCE,

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was a simple one for a person of ordinary skill in the art to understand, and its meaning was practically undisputed by the experts.

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They agreed that a client was a well-understood term that means a piece of software that manages the connection with a server.

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It connects to a server and requests a service or a file.

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So an AOL client is the software that connects to an AOL server.

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Now typically, it was operating on the end device where the user is located, but here this was a virtual client.

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So again, the experts understood

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that what was meant by a virtual client was that it was running on the intermediate server.

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So it's a stand-in or rather it impersonates a user in interacting with the application server.

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That is sufficient structure.

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And the court erred by looking for, by finding this to be functional claiming.

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It is not functional claiming by any stretch.

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The court was looking for a variety of functions, whether it's what it considered to be a translation, or how the virtual client entity was created, or in another, on page 10, it was looking for the structure of how the client connected to or requested a service, but that presupposes that this is means plus function.

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Those are things that the client already does based on what people of ordinary skill in the art understand the client to do.

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So in this case, the virtual client, what it does is it is the go-between between the server and the mobile phone, so that if the mobile phone is disconnected from the intermediate server, the virtual client entity maintains the connection to the application server, and the user is able to continue interacting with the application when self-service is resumed.

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Principle errors.

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I appreciate there are a number of things we briefed.

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The two principle errors.

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Hey, I don't need to stretch.

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You're familiar with our recent decision in RAINN?

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I am, yes.

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And so that sort of answers one of your arguments in the brief that you couldn't have a means plus function limitation in a method plan, right?

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Well, the way, I think I understand the question, Your Honor.

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The way we read the case law is that a, let's call it an apparatus element within a means plus function claim would only be found that if it were devoid of structure.

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Whereas here there is structure.

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It's not using, it doesn't use a non-sword such as means or module, which was the case in RAIN.

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There was a user identification module which had no commonly understood meaning.

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But I suppose the questions can be conflated to whether virtual client entity had structure.

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I'm not sure if that answers your question, Your Honor, but what we think based on reading the case law is that the circumstances for finding 112 paragraph 6 for an apparatus element in a method claim are more limited than in an apparatus claim.

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additional language and apparatus claims that we see that a structure is not sufficient to perform the recited functions, I don't believe I've seen any case of the court that has found that in a method claim.

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Every means plus function application in the method claim that we've seen was where there was no structure at all in the particular element.

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For that

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Particular question, we are content to rest on our briefs.

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And what I would like to address with the court's permission is whether the virtual client entity and surrounding language included sufficient structure.

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And secondly, if we get to that, whether there was supporting structure in this specification, if it were found to be means plus function.

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Council, this is Judge Moore.

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Is the virtual client entity a software program?

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Yes, Your Honor.

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That was understood by the experts.

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And if it's a software program, you think that is the sufficient structure for a potential 112-6 element?

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If the claim had said a software module,

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That would be a different matter, but here we're saying it's a client and there was ample testimony from the experts intrinsic evidence dictionaries even there was even a definition of a client in the file history here.

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This is like tech global, if I recall correctly, where

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The claim element was defined in the prosecution history, and that's what we add here, that the inventors provided a dictionary definition during prosecution to the patent office.

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That is sufficient for a structure.

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And what the client means here is that, for example, if you have a variety of internet-based applications, right, so you have, for example, AOL is an example provided in the patent.

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It's a bit outdated now, but you could only connect to an AOL

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service using an AOL client.

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You remember the disk that they used to mail ubiquitously, right?

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You put the program from that CD onto your computer and that software was the AOL client.

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So a client is the particular software that's associated with a server for connecting to that particular application server.

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That is a structure.

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It's a special purpose piece of software and it's known in the art as such.

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Mr. Yone, this is Judge Lynn.

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Are you saying that the expression virtual client entity is the equivalent of a recitation of a program resident on a piece of structure like a server?

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The virtual client entity is a piece of specialized software residing on a computer, which is the intermediate server in this case.

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So you are reading virtual client entity as if it was, as if it said a server program to function as a virtual client.

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Is that right?

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I'm not sure, Your Honor, that I understand the import of the question, but the claim tells us that the virtual client entity is resident on the intermediate server.

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uh... it that the claims does at a first server creating a virtual client entity so that is was resident on the first server you know because i i mean i think that would be a hard read uh... which it seems to me that virtual client entity if it means anything it has to simply refer to the software emulates a client it does refer to software your honor i i agree with that and i didn't mean to

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give the impression of disagreeing, the virtual client is a piece of software.

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The entity refers to, it's an instance, right?

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It's an executable instance of that.

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So I don't believe we disagree.

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The virtual client entity is a program.

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That's correct.

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So are you agreeing that this should be analyzed as a means plus function limitation?

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No, we do not agree with that.

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No, by calling it a program,

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That does not end the question, right?

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It is a program with a specific structure and it has a particular, it has a known meaning and a structure to those of ordinary skill in the art.

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Well, it's a program with a known function.

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And that provides its structure.

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That, and I don't know if it's a meaningful distinction or not, but it's, for example, if we talked about a driver as a piece of software, that is a

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that has a structure.

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It's not a general purpose software module.

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It's with a specific purpose.

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And it is known to those of skill in the art.

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So when we talk about means plus function, it's any means for doing X. And it's not necessarily something known to those of ordinary skill.

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But here, because we're using technical terms that were known to those of skill, including by admission of both experts here, everybody knows what a client is.

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That does not put it in the realm of means plus function because it is a known piece of software, and there is some case law we've cited to that effect as well.

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For example, I don't have the particular claims in mind right now, but just calling it software does not make it means plus function, of course.

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Where do the experts say that this is a known piece of software?

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I was reading the oral argument before the district court the other day, and I recall there was no dispute that it was known how to put a client on a server.

[00:10:04] Speaker 00:
That's not an answer to my question.

[00:10:07] Speaker 00:
Where, for example, does your expert say that it's a known piece of software?

[00:10:14] Speaker 03:
Other than the definition provided during prosecution history, I'm looking here at

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Mr., excuse me, Professor Peterson's declaration.

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And he says, for example, at appendix page 1791, that client server systems and protocols were very well known by the time of the invention.

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A server is a device on the stator.

[00:10:45] Speaker 00:
Wait, wait, wait, wait.

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1791?

[00:10:48] Speaker 03:
Yes, Your Honor.

[00:10:50] Speaker 00:
Okay.

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Paragraph 43.

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Second line, the server is a device on which data or services were located and the client or client software is a computing device or software adapted to connect and request information from the server.

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And then there are various definitions of client that were provided based on dictionaries, technical references at the time of the invention.

[00:11:17] Speaker 00:
I don't read that as saying it's a known piece of software.

[00:11:21] Speaker 00:
Where does he say that?

[00:11:24] Speaker 03:
I would, I think if it's not in HEC-Verba, I don't believe it's a matter of dispute.

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And I would welcome my learned colleague, Mr. Angelus, to address whether that's in dispute.

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I don't believe there's dispute in that.

[00:11:44] Speaker 04:
Council, this is just more.

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There's a difference between saying a programmer would know how to create a program that does this

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which is what I think you have in the record, and saying it is a known, precise piece of software, which would mean that would be something known to have sufficient structure in a particular form.

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I mean, there's no doubt that record is replete with evidence that a skilled artist would know how to craft such a software program, but that's exactly the kind of circumstance where we've required an algorithm.

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We are not arguing

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for purposes of the first means plus function question, whether there's sufficient structure that one would know how to do it.

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We are saying that it is a known piece of software.

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And I don't think there's a dispute on that.

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There is an AOL server, for example, and an AOL client which connected to the AOL server.

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A client is a known piece of software to those of skill in the arc.

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There was, you know, if this were found to be means plus function, we have also identified an algorithm sufficient to show how

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the virtual client entity operates.

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That's a separate question.

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If it is construed as means plus function, the court made the mistake here, with due respect, of finding no algorithm at all.

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There is a dichotomy of cases, a distinction, as the court knows, for example, as discussed in All Voice, E+, and other cases, between whether there is no algorithm at all and whether there's a sufficient algorithm.

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If there's no algorithm, then we do not look to one of ordinary skill in the art, how that would be interpreted.

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But where the question is only the adequacy of the algorithm, and we did point to an algorithm here, if it's the adequacy of the algorithm, then the court should have looked to the expert evidence that one of ordinary skill in the art would have known how to implement the virtual client entity.

[00:13:41] Speaker 04:
But, counsel, we've said over and over again the fact that a skilled artisan would know how to do it doesn't satisfy your obligation, if you have one, of disclosing precisely how you're claiming it be done through a particular algorithm.

[00:13:56] Speaker 04:
So the evidence you presented on that, at least the way you just framed it, would not satisfy our test.

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Again, I think what we, what the court, reading the court's opinion, the court said there was no algorithm at all.

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You know, one error was that it misidentified the function.

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It said there's nothing for telling me how the virtual client entity is created, which is the incorrect function.

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When we look at the function of allowing communication, if that were the function between the phone and the application server, then there is ample algorithm.

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There's authenticating the user, there's requesting a service, and there's providing it to a user's telephone

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using, for example, an HTML page.

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That is an algorithm.

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There's no further algorithm that is required, and those things are understood by one of ordinary skill in the art.

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That is what we understand the case by the mean based on the sufficiency line of cases, not the no algorithm at all line of cases.

[00:14:58] Speaker 00:
Okay, Mr. Yoni, you're into your rebuttal time.

[00:15:03] Speaker 00:
We'll let you save two minutes.

[00:15:06] Speaker 00:
Thank you.

[00:15:07] Speaker 00:
Mr. Angela.

[00:15:12] Speaker 01:
Good morning and may it please the court.

[00:15:14] Speaker 01:
I just want to confirm, can the court hear me okay?

[00:15:17] Speaker 02:
Yes.

[00:15:18] Speaker 01:
We can hear you.

[00:15:19] Speaker 01:
Thank you.

[00:15:20] Speaker 01:
Thank you.

[00:15:21] Speaker 01:
So let me just begin by saying there very much is a dispute about whether a virtual client entity refers to some particular known software.

[00:15:29] Speaker 01:
And so on what I'll call the first prong of the Williamson test, whether there is sufficiently definite structure recited

[00:15:37] Speaker 01:
What what our friends on the other side are arguing is that essentially this case is analogous to the zero click case, because this is a reference to some particular known software.

[00:15:47] Speaker 01:
But there are several fatal problems with that argument.

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You know, among the first is that virtual client entity is a coined term as the district court found on page 10 of the appendix.

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So it's not in common parlance as a term for particular structure.

[00:16:02] Speaker 01:
And we know that from the advanced ground case.

[00:16:04] Speaker 01:
on the structures only with the word themselves connote to want to go in the art you know in light of the intrinsic record it's also the alleged advance over the prior art in the point of novelty and uh... the district court found that as well on page eleven of the appendix and in addition it's a non-structural term at the district court explicitly found so recall that the district court for purposes of its analysis adopted doctor better send opinion about what the virtual client entity is

[00:16:35] Speaker 01:
And it's not a client of any identified sort.

[00:16:39] Speaker 01:
Instead, it's a program that, quote, when executed is perceived by the server to be a client.

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And Dr. Rettison further said, quote, it is not in actuality the client software expected by the server.

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So it's something new.

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It's some new animal that allows communication between an incompatible mobile telephone device and an internet-based application.

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It's not known structure in the art.

[00:17:05] Speaker 01:
And for that reason, the term virtual client entity does not recite sufficiently different, sufficiently definite structure.

[00:17:13] Speaker 01:
But there's a second issue as well.

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The second prong, what I'll call the second prong of Williamson, on the structure sufficient to form the recited function.

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And here, again, the district court made explicit factual findings.

[00:17:26] Speaker 01:
And what we have is Dr. Betterson saying that the virtual client entity

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has to do two things.

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It has to not only allow connection to occur, which of course a program can connect to another program, but it has to allow some sort of conversion operation to occur to allow the incompatible telephone device and internet-based application to talk to one another.

[00:17:52] Speaker 01:
And what the district court explicitly found was that

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Dr. Betterson said that's an implementation detail that essentially conceding that there is nothing in the term virtual client entity that explains the way in which that software converts the information from one form into another to allow the communication to occur between these two devices, between the internet-based application and the telephone device.

[00:18:23] Speaker 01:
And, you know, Judge Andrews, in his opinion,

[00:18:26] Speaker 01:
Cited directly to that portion of TJAT argument, where paragraph 50, we were talking earlier about Dr. Bederson's report, paragraph 50, which is on 1793 of the appendix, is what is cited by TJAT in its brief at 925.

[00:18:44] Speaker 01:
And there, Dr. Bederson is explicit.

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There's got to be a conversion that happened.

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This is what this virtual client entity does.

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And the reason why Judge Andrews found that

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even accepting the opinion of Dr. Betterson, this extrinsic evidence as fact, what the extrinsic evidence showed is that this implementation detail is just missing from the record.

[00:19:09] Speaker 01:
This idea of how the conversion, the way in which this conversion happens, which is what's required for the allowing communication function to occur, is not there within the intrinsic record.

[00:19:19] Speaker 01:
And so as a result of that, there is not structure sufficient to perform the recited function.

[00:19:29] Speaker 01:
So given that, we think that both prongs of the Williamson test indicate quite clearly that this claim term is governed by 112.6.

[00:19:39] Speaker 01:
So in light of that, the next step in the analysis is that the court has to turn to the specification to see whether there's an algorithm that is disclosed for that function, the allowing communication.

[00:19:53] Speaker 01:
And here, there is no corresponding structure in the specification.

[00:19:58] Speaker 01:
So just, there's no dispute that this is a question of fact.

[00:20:01] Speaker 01:
We've cited the Buddy case, B-U-D-D-E.

[00:20:03] Speaker 01:
It may be Bud.

[00:20:04] Speaker 01:
I've never known.

[00:20:06] Speaker 01:
But to me, this burden Expedia identified all the places where TJAT suggested there was structure and explained that there is not, in fact, structure in the specification.

[00:20:14] Speaker 01:
And the district court said, essentially, yes.

[00:20:18] Speaker 04:
I have one more.

[00:20:18] Speaker 04:
Don't you think the word entity is kind of like the word module or mean?

[00:20:22] Speaker 01:
I do, Your Honor, and I think my learned colleague on the other side pointed out that my answer was a little confusing before Judge Andrews when I said yes and no.

[00:20:32] Speaker 01:
I completely agree that entity is very much like the term module, but what I was saying in my answer when I said yes and no is that not only is entity a nonce term, but virtual client entity is a nonce term defined solely by its functions, which is what Judge Andrews found on the question of whether 112.6 applies.

[00:20:52] Speaker 01:
And so I agree completely with that, Your Honor.

[00:20:58] Speaker 01:
So again, in terms of what the specification discloses, Figure 4 is what below was identified as the algorithm, and there's just no algorithm there.

[00:21:09] Speaker 01:
So there's Element 150, which is a box that says Create the VCE, and there's no structure there whatsoever.

[00:21:16] Speaker 01:
There's Element 160, which says Establish a Session,

[00:21:21] Speaker 01:
And that just essentially restates the function that communication is going to occur.

[00:21:26] Speaker 01:
This idea that communication is going to occur, restating the function, we've cited many cases in our brief that restating the function is not an algorithm and can't satisfy the algorithmic requirement.

[00:21:40] Speaker 01:
Then there's element 170 where the application, not the virtual client entity, the application authenticates the user.

[00:21:47] Speaker 01:
And your column seven of the specification makes it clear that it's the application doing that.

[00:21:52] Speaker 01:
And then finally, there's element 180, where there's a discussion of how the VCE, excuse me, how the telephone device receives files.

[00:22:02] Speaker 01:
But, you know, during argument below, there was a discussion about whether that element had anything at all to do with the VCE, because we were discussing dependent claims five and 10 of the 434 patent that talk about that element.

[00:22:14] Speaker 01:
And it was agreed, this is on appendix 918, that that element really has nothing at all to do with the VCE.

[00:22:22] Speaker 01:
Now before this court, there was a discussion of figure five as well.

[00:22:27] Speaker 01:
And figure five respectfully is just a red herring.

[00:22:29] Speaker 01:
It doesn't even mention the virtual client entity and it literally has nothing to do with the structure of the virtual client entity and how it performs this converting function that's required for communications to occur.

[00:22:43] Speaker 01:
It deals with a situation where there's non-connected, where there's a lack of connection between the telephone device

[00:22:50] Speaker 01:
and the internet-based application.

[00:22:53] Speaker 01:
And in that situation, there would be no BCE as the claim itself teaches us.

[00:22:57] Speaker 01:
So it's an unclaimed embodiment that has nothing at all to do with the virtual client entity.

[00:23:04] Speaker 01:
The idea that Judge Andrews didn't consider what was put forward with Figure 4, for example, is just incorrect.

[00:23:12] Speaker 01:
His opinion is replete with that.

[00:23:15] Speaker 01:
And we can contrast what's there with some of the cases that were cited.

[00:23:19] Speaker 01:
So, for example, in the intelligent automation design case that was cited by TJAT, there you had an algorithm.

[00:23:26] Speaker 01:
The issue there was, you know, essentially a torque determination.

[00:23:30] Speaker 01:
It was essentially what would have mattered to a drilling situation.

[00:23:34] Speaker 01:
And so there the algorithm was, you know, receive a filtered analog current signal representing torque

[00:23:40] Speaker 01:
and smoothing it, and then the microprocessor measures and monitors the value of the signal after there's a receiving and smoothing done, the microprocessor detects a decrease in current, signifying that the torque has begun dropping, and therefore the screw has reached the point of grip.

[00:23:55] Speaker 01:
So that's the kind of thing that we're looking for for an algorithm.

[00:23:58] Speaker 01:
Here there's a complete absence of any algorithm for the conversion that has to occur.

[00:24:06] Speaker 01:
So finally, I'll just move briefly to the issue of 101.

[00:24:12] Speaker 01:
Here, we offer this because it is certainly the case that 112.6 can be an issue that sometimes can be difficult.

[00:24:22] Speaker 01:
I think it's very straightforward here.

[00:24:24] Speaker 01:
But if the court is inclined to address 101 instead of 112.6, we believe that that issue is fully before the court for resolution.

[00:24:31] Speaker 01:
It's right.

[00:24:33] Speaker 01:
Unlike what was said in

[00:24:36] Speaker 01:
in TJAS brief, there was no deferral of the 101 issue because of a need for factual development.

[00:24:43] Speaker 01:
To the contrary, the only deferral was to allow claim construction to occur of the term virtual client entity.

[00:24:50] Speaker 01:
And that having occurred, Judge Andrews explicitly said in his ruling on claim construction that that essentially resolved the 101 issue.

[00:24:59] Speaker 01:
And because of that, the claim term is purely functional.

[00:25:04] Speaker 01:
It's defined only by its functions that because of that, you know, the familiar one-on-one law would dictate that because there's no way in which the virtual client entity is identified as performing the recited functions under cases like two-way media, um, and, you know, American Axel, and of course the district court opinion where Judge Bryson was sitting by designation and Epic IP, where you have this kind of functional language that's exactly the harbinger

[00:25:29] Speaker 01:
of an attempt to own every way of communicating.

[00:25:33] Speaker 01:
So for purposes of both 112.6 and for 101, you have a situation where there's a serious preemption problem.

[00:25:43] Speaker 01:
There's an attempt to own the way in which an old fashioned telephone device would communicate with an internet-based application and to own every way of doing that by just saying there's some magic virtual client entity in the middle that makes that happen.

[00:25:58] Speaker 01:
What we need is a particular way of accomplishing that.

[00:26:02] Speaker 01:
And that's what would have been necessary to allow this claim to be definite.

[00:26:07] Speaker 01:
And if the court has no questions, I'm happy to end my presentation there.

[00:26:12] Speaker 00:
OK.

[00:26:13] Speaker 00:
Hearing no questions, thank you, Mr. Angeles.

[00:26:16] Speaker 00:
Mr. Ione, you have two minutes.

[00:26:20] Speaker 03:
Thank you.

[00:26:21] Speaker 03:
One question of Judge Moore's that I'll address about entity.

[00:26:25] Speaker 03:
I don't believe there's any evidence that entity is a commonplace word for a generic word like module.

[00:26:32] Speaker 03:
Secondly, with a word like client that does have structure, a pending entity to it does not suddenly render it devoid of structure.

[00:26:41] Speaker 03:
For example, a wireless device means in one of the cases that we've seen was found to be not means plus function.

[00:26:50] Speaker 03:
And where the court accepted our definition of virtual client entity, that should have provided sufficient structure.

[00:26:57] Speaker 03:
About the question of conversion, there's no function recited in the claim for conversion.

[00:27:04] Speaker 03:
And so there's a bit of bootstrapping going on here.

[00:27:07] Speaker 03:
If we're looking for a conversion function, which is not in the claim,

[00:27:12] Speaker 03:
then we don't find it in the specification, because that is not the expressed function, right?

[00:27:17] Speaker 02:
This is Judge Lynn.

[00:27:20] Speaker 02:
If there's no conversion, how in the world would a telephone communicate with an app, an internet app?

[00:27:30] Speaker 03:
With due respect, it doesn't.

[00:27:32] Speaker 03:
It communicates with the intermediate server.

[00:27:33] Speaker 03:
It communicates with the virtual client entity.

[00:27:36] Speaker 03:
And the virtual client entity is the stand-in that communicates with the application server.

[00:27:41] Speaker 03:
There's no direct communication between the phone and the application server.

[00:27:46] Speaker 03:
It's an intermediary.

[00:27:49] Speaker 03:
It's a relay.

[00:27:51] Speaker 02:
It's the device that performs the necessary function of translating data in one format that is recognized by a telephone to data that's recognized by another format, namely the app.

[00:28:10] Speaker 03:
That may be a metaphor, but I don't believe it's expressed in the claims as such.

[00:28:14] Speaker 03:
What happens when data comes in through the connection to the application server, you know, it comes to the intermediate server, to the virtual client entity, and not just send it along using, for example, HTML.

[00:28:29] Speaker 03:
That's disclosed in the patent.

[00:28:30] Speaker 03:
There's no need for any, you know, the metaphor in the district court was Japanese to English or some such.

[00:28:36] Speaker 03:
There's no conversion.

[00:28:37] Speaker 03:
The purpose of

[00:28:39] Speaker 03:
The virtual client entity is to keep alive that connection and to pass along whatever comes to the mobile phone when the mobile phone is available.

[00:28:47] Speaker 00:
Okay, Mr. Yoni, unless my colleagues have any questions, I think we're out of time.

[00:28:53] Speaker 03:
Thank you.

[00:28:54] Speaker 00:
Thank you, Mr. Yoni.

[00:28:56] Speaker 00:
Thank you, Mr. Angeles.

[00:28:58] Speaker 00:
The case is submitted.

[00:28:59] Speaker 00:
That concludes our session for this morning.

[00:29:02] Speaker 04:
The Honorable Court is adjourned from day to day.