[00:00:00] Speaker 01:
Next case for argument is 20-1837, TV and Go versus LG Electronics.

[00:00:07] Speaker 01:
Mr. Kantine or Kanteen?

[00:00:10] Speaker 01:
Kantine?

[00:00:10] Speaker 02:
Kantine, Your Honor.

[00:00:11] Speaker 02:
Kantine, thank you.

[00:00:13] Speaker 02:
Thank you.

[00:00:16] Speaker 02:
Good morning.

[00:00:16] Speaker 02:
May I please report?

[00:00:17] Speaker 02:
Again, my name is Charles Kantine on behalf of the Appellant TV and Go.

[00:00:23] Speaker 02:
Your Honors, we have five patents that are at issue that are each directed in general to how overlays appear on the TV screen, whether automatically as a result of an overlay activation criterion being satisfied or what I would term manually through the use of an overlay activation signal.

[00:00:41] Speaker 02:
And then we also have claims directed to how the user can interact with those overlays via an overlay activation signal.

[00:00:49] Speaker 02:
I want to start by establishing that the term overlay was not in this piece.

[00:00:56] Speaker 02:
Each of the parties and their experts agreed that it meant in the context of these patents IP material superimposed over TV video.

[00:01:06] Speaker 02:
And the district court held that the two terms were used inconsistently across the claims and the patents and thus indefinite.

[00:01:14] Speaker 02:
But what the district court termed inconsistencies are in fact just

[00:01:18] Speaker 02:
different aspects of the different embodiments that are disclosed in the common specification.

[00:01:27] Speaker 02:
And these five patents comprise nearly 100 issued claims, and they all date back to 2005.

[00:01:33] Speaker 02:
They were examined by two different patent examiners for more than 10 years.

[00:01:39] Speaker 02:
The two terms at issue were added by amendment during prosecution.

[00:01:44] Speaker 02:
They were discussed specifically with the examiner many times.

[00:01:47] Speaker 01:
Let me just, just starting where you left off, which is these claims, these terms, the two terms at issue here were added.

[00:02:00] Speaker 01:
No one is contending there's a plain and ordinary meaning for these terms.

[00:02:05] Speaker 01:
And there's no reference to these terms in the specification.

[00:02:11] Speaker 01:
So am I correct about those predicate kind of facts?

[00:02:15] Speaker 02:
Well, we maintain that the terms should be afforded their plain and ordinary meaning.

[00:02:20] Speaker 02:
I think the point you're getting at is that the experts agree that the terms, the whole phrase, like overlay activation criterion, didn't have an ordinary meaning in the art.

[00:02:30] Speaker 02:
But that doesn't mean that the terms individually don't have a plain and ordinary meaning.

[00:02:36] Speaker 02:
Just like overlay has a meaning, criterion has a meaning, signal has a meaning, activation has a meaning.

[00:02:44] Speaker 03:
If you give the terms of planning an ordinary meeting, aren't you left with a stark contradiction between the terms?

[00:02:54] Speaker 02:
Well, no, I don't think so, Your Honor.

[00:02:57] Speaker 02:
I think overlay activation criterion is used consistently across each of the three patents in which it appears.

[00:03:05] Speaker 02:
It's always referring to what I would refer to as an initial overlay, such as shown in Figure 7A, the patent.

[00:03:14] Speaker 02:
In each instance where overlay activation criterion appears, the result is the initial display of an overlay.

[00:03:22] Speaker 02:
When we get the overlay activation signal, yes, the claims use it in two different manners.

[00:03:27] Speaker 02:
One, to display the initial overlay, and then secondly, using the signal to select the initially displayed overlay to display the underlying or associated IP material.

[00:03:42] Speaker 01:
Well, here's the problem I see.

[00:03:45] Speaker 01:
I'm seeing a little confusion here, and this is just with the intra-patent issues for the judge covered on pages 8 and 10.

[00:03:54] Speaker 01:
The one thing we do have to look to in the spec is it uses the word activate, not overlay activation, not the terms that appear in the claim, but at least the word activate.

[00:04:07] Speaker 01:
And the passage in the spec describes activating

[00:04:11] Speaker 01:
An overlay.

[00:04:15] Speaker 01:
So that seems like a way to figure out what overlay activation means.

[00:04:21] Speaker 01:
And the passage describes, let me finish my question, okay?

[00:04:25] Speaker 01:
The passage describes using a remote control to activate an already displayed icon, an overlay, and that doing so results in the display of IP content associated with that overlay.

[00:04:37] Speaker 01:
So here's my problem.

[00:04:39] Speaker 01:
The claims recite displaying or generating or obtaining an overlay that is not yet developed.

[00:04:46] Speaker 01:
But the specification, when it uses the only overlapping word, which is activating, describes selecting an overlay that is already displayed.

[00:04:54] Speaker 01:
So just tell me.

[00:04:57] Speaker 01:
I mean, this is, I think, the concern the district court was having.

[00:05:01] Speaker 01:
How does one of ordinary skill in the art understand

[00:05:05] Speaker 01:
whether the disputed terms result in activating an overlay that is already displayed, which is what the specification is talking about, or displaying an overlay for the first time, what it seems to me the claims are doing.

[00:05:19] Speaker 02:
Sure, Your Honor.

[00:05:19] Speaker 02:
So yes, the term activate refers to the one embodiment the district court noted where the initial overlay is already on the screen and the user presses a button on the remote control to activate the underlying IP material.

[00:05:35] Speaker 01:
I will let you answer, but just to be clear, you don't quibble that she should have looked to that because it's the only word from the claims that appears in the spec.

[00:05:49] Speaker 02:
I don't have a problem with the district court studying that particular section of the specification, but I think the question is what one of our ordinary skill in the art would understand by the other embodiments disclosed in the specification.

[00:06:03] Speaker 02:
For example, on the overlay activation criteria, we have examples where the user can program the system to filter out certain IT content that is not of interest.

[00:06:15] Speaker 01:
And the example in the specification talks about figure three in the related description about when the system... Don't you play a game for one trying to understand the scope of the claim to track down that word, any seen

[00:06:32] Speaker 01:
But the phrases don't appear in the spec.

[00:06:36] Speaker 01:
So don't think it's fair game for a one skilled in the art to search out that word activate, the only overlapping word, and to define its use is arguably informing what you mean by activation and all those terms in the claim.

[00:06:52] Speaker 01:
That's fair game, right?

[00:06:54] Speaker 02:
It's fair game, but I think the term activate or that the claim term is activation is really just bringing, making something operative.

[00:07:02] Speaker 02:
And that's consistent with the way the specific examples used in the specification.

[00:07:08] Speaker 02:
And again, when we talk about overlay activation criteria in Figure 3 and the related text, it talks about when the system determines there's a match, it displays the overlay.

[00:07:19] Speaker 02:
So that it is activating the overlay that is stored in memory when certain conditions match.

[00:07:26] Speaker 02:
So it can do its filtering.

[00:07:28] Speaker 02:
I think one of the skill in the art, reading that example and that embodiment in the specification,

[00:07:33] Speaker 02:
would understand that in that case, it's also activating an overlay.

[00:07:39] Speaker 02:
And I think this is... I'm sorry, go ahead.

[00:07:43] Speaker 03:
Go ahead and finish that thought.

[00:07:46] Speaker 02:
The other aspect is this, you know, the generating versus displaying.

[00:07:50] Speaker 02:
And I think LG and the gesture court seem to suggest that when we use the term generate,

[00:07:56] Speaker 02:
the overlay, we're talking about creating the overlay at a full cloth.

[00:08:00] Speaker 02:
And that's not how the system works.

[00:08:02] Speaker 02:
The overlays always come from the IP.

[00:08:05] Speaker 01:
I'm sorry, this is Dizprose.

[00:08:07] Speaker 01:
Your claim construction was shifting over time.

[00:08:09] Speaker 01:
And you say displaying and generating are the same thing.

[00:08:15] Speaker 01:
But how does one of ordinary skill know that?

[00:08:19] Speaker 01:
I mean, they're different words.

[00:08:20] Speaker 01:
So wouldn't one fairly assume that they meant different things?

[00:08:26] Speaker 02:
No, I think when you're talking about prosecuting five patents and 100 claims over a 10-year period, it's not surprising that they use different words to describe the same outcome.

[00:08:38] Speaker 02:
If you look at the actual claim language, it tells you what generating means.

[00:08:42] Speaker 02:
It's generating display drive signals that cause the TV to display the overlays.

[00:08:47] Speaker 03:
So, Councilor, you're arguing that we should

[00:08:52] Speaker 03:
consider that the claims are understandable on their face.

[00:08:57] Speaker 02:
Exactly.

[00:08:58] Speaker 02:
I think it's very clear.

[00:08:59] Speaker 03:
I think that there's a problem with that.

[00:09:03] Speaker 03:
And the way I understand your arguments is you're looking for the plain meaning for the claim terms.

[00:09:10] Speaker 03:
And as you just said, that they're understandable on their face.

[00:09:13] Speaker 03:
But there's still a discrepancy between the claims and the specification.

[00:09:18] Speaker 03:
And if that's the case, if we're looking at a discrepancy between the specification and the plain meaning of the claims, then isn't this a written description issue?

[00:09:31] Speaker 03:
Well, it could be.

[00:09:34] Speaker 03:
You jump out of the pot into the fire.

[00:09:37] Speaker 02:
Well, the LG never raised a written description argument in this lengthy claim construction process we went through.

[00:09:46] Speaker 02:
I think the other point I wanted to make is we have the claims, you can read the claims and even the district court could understand, okay, in this claim, the signal is resulting in display and overlay.

[00:09:58] Speaker 02:
In this claim, the signal is resulting in display of IP material.

[00:10:01] Speaker 02:
The question is, is there support in the specification for those interpretations or those plain meanings when you read the claim?

[00:10:09] Speaker 02:
And there is.

[00:10:12] Speaker 02:
Plenty of examples where the criterion is satisfied, which results in the display of an overlay.

[00:10:20] Speaker 02:
We have examples in the specification where the user can use a signal to activate the displayed overlay to show the underlying IP material.

[00:10:30] Speaker 02:
I would point you to Figure 7 when we go from 7A to 7B.

[00:10:35] Speaker 02:
And then we have examples in the specification where we're using the signal to generate the initial overlay.

[00:10:40] Speaker 03:
Okay, Council, before you sit down, I think I heard the tone.

[00:10:46] Speaker 03:
Before you sit down, let me ask you, so how do you respond to LG's argument that different claim terms should have different meanings?

[00:10:54] Speaker 02:
Well, I think that it's certainly permissible.

[00:10:57] Speaker 02:
We've cited you the relevant case law that there's nothing wrong with that.

[00:11:01] Speaker 02:
What we tried to do in our proposed construction was say, okay, yes, in some claims the signal results in an overlay, in some claims the signal results in IP material.

[00:11:09] Speaker 02:
Here's a proposed construction where it's one or the other.

[00:11:12] Speaker 02:
It's A or B. We could have offered patent-specific constructions, but we chose to just offer one construction that would cover both embodiments.

[00:11:21] Speaker 02:
And the district court never really considered that.

[00:11:26] Speaker 02:
So I wouldn't say we were shifting.

[00:11:27] Speaker 02:
We were just saying, okay, if you want to construe it, here's a way to construe it that would cover all the various aspects and embodiments that the claims are covering that are supported in the specification.

[00:11:40] Speaker 01:
Okay.

[00:11:42] Speaker 01:
If you've responded to Judge Rayna, let's reserve your rebuttal and hear from Mr. Peterson, please.

[00:11:47] Speaker 01:
Thank you.

[00:11:49] Speaker 02:
Thank you.

[00:11:53] Speaker 04:
Thank you.

[00:11:54] Speaker 04:
May it please the court, in a careful and thorough analysis, after several rounds of briefings, the district court correctly concluded that the terms overlay activation criterion and overlay activation signal are indefinite.

[00:12:10] Speaker 04:
And I think my friend's argument really highlighted the problem with these patents.

[00:12:15] Speaker 04:
What we're looking for here are objective boundaries that one of skill in the art could use to determine what is claimed by these patents and what is left open to the public and not claimed.

[00:12:29] Speaker 04:
As was pointed out, it's undisputed.

[00:12:31] Speaker 04:
These are not terms that are commonly used in the art.

[00:12:36] Speaker 04:
There's no suggestion.

[00:12:37] Speaker 04:
that one of skill in the art has ever used these terms outside the context of this patent.

[00:12:42] Speaker 04:
And there's no suggestion that these phrases, when put together, have any sort of ordinary meaning to a person on the street.

[00:12:50] Speaker 04:
This court's precedent.

[00:12:51] Speaker 01:
But I think your friend, Mr. Peterson, this is Judge Crouse.

[00:12:55] Speaker 01:
I think your friend suggested there was kind of a plain and ordinary meaning, because if you tease out the phrases like overlay activation signal,

[00:13:05] Speaker 01:
Each word in that phrase has a known meaning.

[00:13:09] Speaker 01:
So I think that's how they would respond to your suggestion that there's no plain and ordinary meaning of the phrase.

[00:13:16] Speaker 01:
So what do you say to that?

[00:13:18] Speaker 04:
Well, I would say it's both wrong legally and factually, Your Honor.

[00:13:23] Speaker 04:
And legally, of course, the fact that each word individually has an ordinary meaning doesn't mean that there must be an ordinary meaning

[00:13:33] Speaker 04:
when the phrases, when the words are put together.

[00:13:36] Speaker 04:
If that were the case, there could be no indefiniteness in the absence of lexicography.

[00:13:42] Speaker 04:
Patentees can be used words that already exist.

[00:13:45] Speaker 04:
And it's just one example of this in a recent decision.

[00:13:47] Speaker 03:
Counselor, that may be true if you're dealing with a complex technology.

[00:13:53] Speaker 03:
But this technology here, what we're looking at in this pen is not complex.

[00:13:58] Speaker 03:
It's rather simple.

[00:14:01] Speaker 04:
Respectfully, Your Honor, I disagree.

[00:14:04] Speaker 04:
And I agree the concepts may be fairly simple, but I don't think the words are.

[00:14:09] Speaker 04:
So let me say my friend suggested there's no dispute over what an overlay is.

[00:14:14] Speaker 03:
That's incorrect.

[00:14:15] Speaker 03:
In the context of a pen that has simple technology, what's the difference between the words activate and activating?

[00:14:25] Speaker 03:
I mean, Opposal, we've got to give some sort of practical sense to a person of ordinary skill.

[00:14:33] Speaker 04:
Yes, Your Honor, that's correct.

[00:14:34] Speaker 04:
But I actually think activate is not something that has a meaning in any, an ordinary meaning in any kind of software context.

[00:14:42] Speaker 04:
You know, my friend suggests that activate might mean to display, to show on the screen.

[00:14:48] Speaker 04:
Well, if that's the case, then I suppose my computer activates every program on my desktop when it shows an icon when I turn it on.

[00:14:57] Speaker 04:
Activate may mean to interact with the piece of software in some way.

[00:15:00] Speaker 04:
And that's the issue, that activation here, this is not a word that is used in the specification.

[00:15:08] Speaker 04:
It's not a word that appears anywhere other than figure three, or the reference to figure three in specification.

[00:15:14] Speaker 04:
Whereas Chief Judge Gross pointed out, it refers to activating an icon already showed

[00:15:21] Speaker 04:
I'm sorry, not with figure three.

[00:15:22] Speaker 01:
And I think your view would be, Mr. Peterson, that it's not, we're not looking for, even if you're not looking at any particular word in the claims, even if you're not just looking at the phrase, if you take the word, what's going on with respect to the word activating, which we reasonably gravitate to because that's the only mention in the spec where there's an overlap with the claims.

[00:15:47] Speaker 01:
We're talking about it.

[00:15:48] Speaker 01:
It arguably appears that there are two different things going on with respect to the activation and the specimen, the claims.

[00:15:56] Speaker 01:
Am I right about that?

[00:15:57] Speaker 04:
Absolutely, Your Honor.

[00:15:59] Speaker 04:
And as we read the specification, overlay is talking about, if you look at column one, in particular lines 38 to 40, this visual and legible indication of available internet movies.

[00:16:13] Speaker 04:
And so we understand that an overlay is distinct from this IP format material that is associated with the overlay.

[00:16:21] Speaker 04:
That's at least what we understand an overlay to be.

[00:16:24] Speaker 04:
So when you start talking about activating that overlay, my friend suggests that that's exactly the same thing as displaying the IP format material that is associated with that overlay.

[00:16:35] Speaker 04:
And when you start trying to put that together with the claims, they start running into each other.

[00:16:41] Speaker 04:
I'll point out to you just some of the inconsistencies you'll see here in the claims.

[00:16:47] Speaker 04:
If you look, for example, at the 621 patent and claim one,

[00:16:52] Speaker 04:
and just trying to understand the differences in the signals.

[00:16:56] Speaker 04:
So in the 621 patent, there are two different, I suppose they might be signals, there are two different interactions perhaps.

[00:17:07] Speaker 04:
One is responding to an overlay activation signal by reading out overlays from memory and generating display drive signals to display the overlays.

[00:17:16] Speaker 04:
And then there's a second response to a user's selection of a displayed overlay

[00:17:22] Speaker 04:
by generating display drive signals.

[00:17:25] Speaker 04:
However, if you look at the 339 patent, the 339 patent is similar, but there you respond to an overlay activation criterion to cause the display screen to display the overlays as part of the screen image.

[00:17:45] Speaker 04:
But you respond to an overlay activation signal selected at the user's premises

[00:17:51] Speaker 04:
to cause the screen to display the IP format material.

[00:17:54] Speaker 04:
So in the 621 patent, you have a user selection that causes the TV screen to display the IP material.

[00:18:03] Speaker 04:
In the 339 patent, you have an overlay activation signal selected by the user to cause the screen to display the IP format material.

[00:18:11] Speaker 04:
Why one of those is a user selection and one of those is an overlay activation signal?

[00:18:16] Speaker 04:
My friend has never suggested.

[00:18:18] Speaker 04:
And let me suggest also, I think there's a broader issue.

[00:18:21] Speaker 04:
What my friend, I think, is suggesting is that we just define these words according to all of the other limitations in the claims.

[00:18:30] Speaker 04:
That he's suggesting that, really, an overlay activation criterion is any kind of criterion that satisfies the other limitations.

[00:18:37] Speaker 04:
An overlay activation signal is any kind of signal that satisfies the other limitations.

[00:18:43] Speaker 04:
And that's not an answer to indefiniteness.

[00:18:46] Speaker 04:
This is the case here.

[00:18:48] Speaker 01:
Mr. Peterson, I'm sorry to interrupt, but time is moving on.

[00:18:51] Speaker 01:
And I just have a housekeeping type question, which I'd like you to respond to and allow us to ask your friend on the other side.

[00:18:59] Speaker 01:
As you've pointed out, we've got five different patents here, and there were numerous bases upon which the district court relied on her indefiniteness conclusions.

[00:19:09] Speaker 01:
So let me just, as a hypothetical,

[00:19:13] Speaker 01:
If we were to agree with her analysis, for example, pages eight through 10, I believe, where she's talking about the activate and the spec, which we discussed with your friend a bit, and the activation language in the claims, I think that her analysis with respect to the claims versus the spec on activation, my understanding is that's an intrapatent analysis.

[00:19:40] Speaker 01:
and that would take care of all claims and all five patents.

[00:19:45] Speaker 01:
Is that right?

[00:19:54] Speaker 04:
Yes, Your Honor.

[00:19:56] Speaker 04:
I believe that is correct.

[00:20:00] Speaker 04:
The intra-patent inconsistencies do include all five of the assertive patents.

[00:20:06] Speaker 01:
OK.

[00:20:06] Speaker 01:
I mean, there are other issues that she decided on that only deal with

[00:20:10] Speaker 01:
even in the intra-patent is the overlay activation criterion where it's an intra-patent, and that's the issue involving the independent versus the dependent claims.

[00:20:21] Speaker 01:
But my understanding is that only covers three of the patents and not all five.

[00:20:26] Speaker 01:
But it is my understanding, and as I said, maybe your friend can confirm this for us on his rebuttal time, that her conclusions with respect to the spec language of activate versus the claim would cover off

[00:20:41] Speaker 01:
So that's your view, right?

[00:20:43] Speaker 01:
Am I understanding you?

[00:20:49] Speaker 04:
You'll forgive me, Your Honor.

[00:20:50] Speaker 04:
Let me look.

[00:20:52] Speaker 01:
Sure.

[00:20:52] Speaker 01:
No, I understand.

[00:20:53] Speaker 01:
You just said about kinds of questions you want to ask at argument, because when it comes to writing an opinion, you can get really confused, unless the parties seem to be in agreement.

[00:21:03] Speaker 01:
So I appreciate.

[00:21:07] Speaker 04:
Yes, I believe that is correct.

[00:21:10] Speaker 04:
If you look at all five of the asserted patents, each of them are using the overlay activation criterion and the overlay activation signal in a way that... He concluded it was inconsistent with the activate use or at least indefinite because of the use of the word activate in the spec, right?

[00:21:35] Speaker 04:
Yes, Your Honor.

[00:21:35] Speaker 04:
That is correct.

[00:21:37] Speaker 04:
And just one note on these phrases.

[00:21:40] Speaker 04:
This is not an accident that these phrases are included in the claims.

[00:21:44] Speaker 04:
This is not a case where we are picking a stray phrase out of one claim.

[00:21:49] Speaker 04:
This is a case where these phrases were used repeatedly in every single independent claim of all five patents.

[00:21:57] Speaker 04:
It was a conscious choice by the inventor not to claim any criterion, a conscious choice by the inventor not to claim any kind of signal, but to only claim overlay activation criterion and overlay activation criterion.

[00:22:10] Speaker 04:
signal.

[00:22:11] Speaker 04:
And in those circumstances, it's necessary that want to scale in the art understand objectively what the outer boundaries of that are.

[00:22:19] Speaker 04:
And I'll also point to, you'd asked about... Sorry.

[00:22:23] Speaker 04:
Can you hear me?

[00:22:26] Speaker 04:
Yes, your honor.

[00:22:30] Speaker 01:
Judge Raina raised an interesting point with your friend on the other side, which was, well, why isn't this kind of a written description issue?

[00:22:40] Speaker 01:
I might also add or an enablement issue.

[00:22:42] Speaker 01:
We see a lot of these cases, a lot of cases where new claims are added somewhere in the process and we're looking at what's the match between what's in the new claim phrasing and whether it's sufficient written description in the existing specification or even whether or not there's enablement.

[00:23:01] Speaker 01:
I get that.

[00:23:04] Speaker 01:
I mean, we see a lot of these cases, but I guess your view I assume would be

[00:23:09] Speaker 01:
that maybe that's right and maybe you could have a written description issue in these claims but that doesn't dislodge the indefiniteness inquiry which is at least an equally plausible basis for reviewing this patent.

[00:23:24] Speaker 01:
Am I correct about that?

[00:23:25] Speaker 01:
Yes, Your Honor.

[00:23:26] Speaker 04:
I think that's correct and I view the indefiniteness issue as a preliminary issue that one would first have to resolve what the claims mean before then going on to address

[00:23:36] Speaker 04:
written description and enablement.

[00:23:39] Speaker 04:
Certainly, I think there would be serious, likely fatal enablement and written description issues if this court were... And again, I'm not entirely certain what construction my friend is urging for these terms.

[00:23:52] Speaker 01:
I would say... Please proceed, Mr. Peterson.

[00:23:57] Speaker 01:
You have three minutes remaining.

[00:23:59] Speaker 04:
Thank you, Your Honor.

[00:24:00] Speaker 04:
I'll be very brief.

[00:24:04] Speaker 04:
You've mentioned the dependent and the independent claims and the source of the overlay activation criterion.

[00:24:10] Speaker 04:
I do think it's important that we not look at this just as a potential conflict between the scope of the dependent

[00:24:17] Speaker 04:
and an independent claim.

[00:24:19] Speaker 04:
But it's something that does actually bear on what an overlay activation criterion is.

[00:24:24] Speaker 04:
I think my friend in the reply brief has now embraced the idea that an overlay activation criterion is a condition of some sort that is transmitted as part of the overlay, enabling digital data.

[00:24:38] Speaker 04:
If you look at appendix page 1437,

[00:24:42] Speaker 04:
essentially continuing through appendix page 1444, you'll see a lengthy discussion between the district judge and Mr. Kentine attempting to understand this at argument below.

[00:24:57] Speaker 04:
And there they were emphatic that the overlay activation criterion was not a condition, that a condition was something that was set by the user and that the overlay activation criterion

[00:25:10] Speaker 04:
was really just any kind of information that may have some relevance to the information or to the condition that has been set by the user.

[00:25:20] Speaker 04:
So we do think the presence of user command information in that dependent claim.

[00:25:25] Speaker 04:
It's not just a question of a conflict of the scope of the two claims.

[00:25:28] Speaker 04:
It really is, what is this intended to be?

[00:25:31] Speaker 04:
And as I understand the argument below, at least, it was that overlay activation criterion ends up being essentially any kind of information.

[00:25:40] Speaker 04:
We're simply not seeing objective boundaries here for one of skill in the art.

[00:25:44] Speaker 04:
And as I think my friend has said, their constructions keep getting broader and broader and broader to cover essentially anything and are untethered from the language of the specification, which doesn't use either to raise overlay activation signal or overlay activation criterion.

[00:25:59] Speaker 04:
If the panel has no further questions, I'll happily return what time I have left.

[00:26:04] Speaker 01:
Thank you.

[00:26:06] Speaker 01:
Mr. Canteen, now can I ask, can I have you take just a very brief time at the outset to answer the question I asked your friend just about the mapping?

[00:26:16] Speaker 01:
If hypothetically, if all, if the district court's discussion at eight through 10, which deals with largely the specification language of activate and the claim language, if that results

[00:26:33] Speaker 01:
would cover all of the claims in dispute in this case?

[00:26:39] Speaker 02:
Well, I would say, Your Honor, the 339 patent is the only claim where the overlay activation signal is recited as a user selecting an initial overlay to display the underlying IP material.

[00:26:56] Speaker 02:
So the use of overlay activation signal in the 339 patent is consistent with

[00:27:02] Speaker 02:
the way the district court interpreted, we contend was overly narrow.

[00:27:10] Speaker 02:
Now, yes, the 339 patent also uses the overlay activation criterion.

[00:27:17] Speaker 02:
To the extent activation was somehow divorced from that limitation, we'd have to deal with that.

[00:27:29] Speaker 02:
But again, the 339 patent, if I can,

[00:27:32] Speaker 02:
deal directly with the example described in Figure 3.

[00:27:36] Speaker 02:
And I think that the point we're trying to make is the limiting activation to just the single embodiment disclosing the specification is improper.

[00:27:44] Speaker 02:
One of ordinary skill in the art, looking at the example in Figure 3, and if you actually look at Figure 3, we have the diamond in the middle that says, do conditions match?

[00:27:57] Speaker 02:
If yes, overlay the IP material or overlay the icon.

[00:28:01] Speaker 02:
One skill in the art of reading that passage and looking at that figure would understand that that is overlay activation criterion, that the criterion is signaling the display of the overlay.

[00:28:12] Speaker 02:
So I think limiting the term activation in the manner the district court did essentially is limiting it to one embodiment disclosing the specification was improper.

[00:28:22] Speaker 02:
I think these claims need to be read in the context of the overall purpose of the invention, which is how do these displays or how do these overlays appear on the TV screen?

[00:28:31] Speaker 02:
And there's two different ways.

[00:28:32] Speaker 02:
They can appear automatically through the criterion, or they can appear manually through the signal.

[00:28:40] Speaker 02:
And I agree with one of the comments I think maybe it was Judge Rain that made.

[00:28:44] Speaker 02:
These concepts and words are not technical.

[00:28:47] Speaker 02:
They're very simple.

[00:28:52] Speaker 02:
And not every claim term needs to be defined in the specification.

[00:28:56] Speaker 02:
I'll give you an example.

[00:28:58] Speaker 02:
My friend on the other side mentioned this overlay enabling digital data.

[00:29:03] Speaker 02:
That was a term that they initially disputed, but then they dropped it, and they were fine with the plain and ordinary meaning of that term.

[00:29:10] Speaker 02:
But that's not a term that appears in the specification either.

[00:29:14] Speaker 02:
There is no requirement, and they haven't cited you a case, that says every term that appears in a claim needs to be defined somehow in the specification, or even appear in the specification.

[00:29:26] Speaker 02:
And I would also point to the prosecution history.

[00:29:29] Speaker 02:
And this is not a term that just appeared once and kind of slipped through by the examiner.

[00:29:35] Speaker 02:
These terms were specifically added by amendment.

[00:29:38] Speaker 02:
They were subject to interviews with the examiner, where he asked, where are these terms supported?

[00:29:43] Speaker 02:
They had amendments back and forth.

[00:29:48] Speaker 02:
And the examiner cited prior art, particularly over the overlay activation criteria.

[00:29:52] Speaker 02:
I'll point you to the Butler reference, which we cited in our brief.

[00:29:57] Speaker 02:
That dealt with overlays.

[00:29:59] Speaker 02:
which confirms that overlays does have a meaning in the yard.

[00:30:04] Speaker 02:
And Butler talked about this control data that came along with the overlays to tell the system when and how to display these overlays.

[00:30:12] Speaker 02:
An examiner was able to look at Butler and say, OK, the control data of Butler is the same, or allegedly the same, as the overlay activation criteria and specification.

[00:30:24] Speaker 02:
And they made rejections, and again,

[00:30:27] Speaker 02:
interviews and discussions with the examiner.

[00:30:29] Speaker 02:
So I think the prosecution history in this case, the extent of it really supports the fact that these terms are understandable when read in specific context of each of the claims at issue.

[00:30:42] Speaker 02:
Thank you.

[00:30:43] Speaker 02:
I think that buzzer was for me.

[00:30:45] Speaker 01:
Yes, it was.

[00:30:46] Speaker 01:
Thank you very much.

[00:30:47] Speaker 01:
We thank both sides.

[00:30:49] Speaker 01:
Apologize for the glitch and the case is submit.

[00:30:54] Speaker 01:
That concludes our proceeding for this morning.

[00:30:59] Speaker 02:
The honorable court is adjourned until tomorrow morning at 10 a.m.