[00:00:00] Speaker 04:
number 211634 Kaplan versus Microsoft.

[00:00:05] Speaker 04:
What is the plan here for the appellee and cross appellant?

[00:00:14] Speaker 04:
Normally, under our rules and practice notes, we only allow one council to argue for each party.

[00:00:22] Speaker 04:
What is the proposal here, Mr. Abramson?

[00:00:27] Speaker 04:
Can you tell us what's going on here?

[00:00:30] Speaker 05:
Your Honor, the proposal was there's an appeal, Microsoft's appeal, and then there's a cross-appeal on the interest, the prejudgment of interest, and the proposal was that my partner, Mr. Patchen, would argue the portion having to do with the cross-appeal, would argue the cross-appeal for Kauffman.

[00:00:49] Speaker 04:
Okay, well normally that's not permissible to have two parties argue for a single party.

[00:00:55] Speaker 04:
We'll allow it this morning.

[00:00:56] Speaker 04:
I think what we'll do is we'll separate the argument on the

[00:01:00] Speaker 04:
main appeal and the cross appeal we'll do ten minutes on the main appeal and then when that's done we'll come back and do the cross appeal.

[00:01:09] Speaker 04:
But in the future you should not do that.

[00:01:11] Speaker 05:
Understood your honor.

[00:01:12] Speaker 05:
Thank you.

[00:01:13] Speaker 04:
Alright so let's do the main appeal first.

[00:01:17] Speaker 04:
Ms.

[00:01:17] Speaker 04:
McCulloch.

[00:01:20] Speaker 04:
Ten minutes aside on the main appeal and then we'll have a separate clock.

[00:01:25] Speaker 04:
Please adjust the clock so it's ten minutes.

[00:01:27] Speaker 04:
Okay.

[00:01:28] Speaker 04:
Go ahead.

[00:01:30] Speaker 06:
Good morning, Your Honors.

[00:01:31] Speaker 06:
May it please the court?

[00:01:33] Speaker 06:
The district court's judgment of infringement depended on two independent claim construction errors.

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If either error is corrected, the judgment should be reversed based on the undisputed operation of the accused dynamic data software.

[00:01:45] Speaker 06:
I'd like to start with the automatically generating language from the claim preambles and the issue of whether this language requires the method as a whole to be automatic or whether it permits a merely partially automatic method.

[00:01:57] Speaker 04:
Well, I don't see that you asked the district court to construe this term so that it met what you're arguing on appeal.

[00:02:10] Speaker 04:
Where did you, where did you propose that construction here?

[00:02:14] Speaker 06:
Thank you, Your Honor.

[00:02:15] Speaker 06:
We proposed this construction repeatedly, and I think it is helpful to start it.

[00:02:18] Speaker 04:
Well, that won't do.

[00:02:20] Speaker 04:
You got to show me one place where you proposed a specific construction that coincides with what you're arguing here now.

[00:02:29] Speaker 06:
So one place, and I have a number of record sites I can propose, Your Honor, is at appendix 2997 and 98 and 2984, which is during the summary judgment hearing.

[00:02:43] Speaker 06:
Did you say 2997?

[00:02:45] Speaker 06:
2997, Your Honor.

[00:02:47] Speaker 06:
The one place is at lines 20 through 22.

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This is counsel from Microsoft who says, from start to finish, the only thing that was supposed to happen in the patent is to identify a database.

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No other steps, no other user interfaces were supposed to be presented to the user except that final step.

[00:03:07] Speaker 04:
And on the next page... Okay, go ahead.

[00:03:14] Speaker 02:
What about on the following page?

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Don't you, don't you enter or make a stipulation that you're now trying to get out of?

[00:03:22] Speaker 06:
Not at all, your honor.

[00:03:23] Speaker 06:
There is no dispute that the term automatically standing alone means no separate developer input is required.

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That term standing alone was construed and is not disputed on appeal.

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The issue that is disputed and that was not resolved is shown right above that.

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And you can see this on that same page, your honor sites, 2998, starting at line eight.

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where the judge said, I can't tell you who is right, whether there's contemplated a human selection that will then cause an automatic generation, or whether everything has to be automatic.

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A few pages earlier, if you look at...

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is required.

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So that is the resolved meaning of the term automatically standing alone.

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What the court said he was not resolving is whether everything had to be automatic, the scope of automatic, whether automatic generation limits the method as a whole, or whether it can be isolated and applied only to the three recited terms.

[00:04:22] Speaker 02:
Did you make that argument below?

[00:04:23] Speaker 06:
We did, Your Honor.

[00:04:24] Speaker 02:
In this summary judgment hearing, this hearing that we're talking about now?

[00:04:28] Speaker 06:
That's exactly right.

[00:04:29] Speaker 06:
So here, and you can look in the briefing as well, Your Honor.

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So in our opening brief at pages 20, 83, and 84, we raised this issue.

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And one, to step back a little bit, I think it's helpful to remember.

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The issue that you're saying is we should read this as asking for construction, that everything is automatic except the selection step?

[00:04:51] Speaker 06:
No, Your Honor, everything is automatic, period, full stop.

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This, by the way, is language that was proposed initially by Mr. Kaufman.

[00:04:58] Speaker 04:
Wait, wait, wait.

[00:05:01] Speaker 04:
The only thing that was supposed to happen in the patent is to identify a database.

[00:05:04] Speaker 04:
That sounds like selecting a database.

[00:05:07] Speaker 06:
That's correct, Your Honor.

[00:05:09] Speaker 04:
So is my statement correct?

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Your argument is everything has to be automatic except the selection of a database?

[00:05:16] Speaker 06:
That is correct, Your Honor, because that is what starts the method.

[00:05:19] Speaker 06:
The method for automatically generating an interface, an end user interface for a database, requires a database to generate an interface for.

[00:05:26] Speaker 06:
This is language Mr. Kaufman used.

[00:05:29] Speaker 04:
So let's assume for the moment that that was requested claim construction and that that's what the claim construction should be.

[00:05:39] Speaker 04:
But why aren't the steps we're talking about here falling within the category of selecting the database?

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So there is no dispute, Your Honor, that if the method as a whole is required to be automatic, dynamic data does not infringe.

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There is a separate dispute if you limit the scope of automatically to just the isolated three steps recited in the body.

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There is a separate dispute as to whether even the scanning step is automatically performed.

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We've explained why it is not.

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But the larger claim constructional issue, Your Honor, is whether automatically applies to limit the method as a whole.

[00:06:14] Speaker 04:
And that is what Mr. Kaufman said was true to the PTAB.

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because it's a comprising claim.

[00:06:21] Speaker 04:
I'm trying to understand what the claim construction issue is.

[00:06:24] Speaker 04:
You're saying because this is a comprising claim, the claim shouldn't reach, the automatic requirement should include things other than the listed steps in the patent, right?

[00:06:38] Speaker 06:
Well, so I think, Your Honor, the misperception in the red brief is that it is not contingent on the word comprising.

[00:06:45] Speaker 06:
And comprising, in a sense,

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is a little bit beside the point.

[00:06:48] Speaker 04:
I'm just trying to understand what the argument is.

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I understand that there are certain specific steps that have to be performed here, which as I understand it, the district judge found could fall within the selecting category and the jury could find infringement because the non-automatic steps fell into selecting, correct?

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Correct.

[00:07:14] Speaker 04:
What's wrong with that first?

[00:07:19] Speaker 06:
What's wrong with that, Your Honor, is that the district court's determination there was premised on an interpretation of automatically that applied only to those three steps, as opposed to the method as a whole.

[00:07:29] Speaker 06:
I think one way to clarify the issue, Your Honor, is to look at... I don't understand what you just said.

[00:07:35] Speaker 04:
Okay, I apologize.

[00:07:35] Speaker 04:
The district judge said these steps, which are not performed automatically,

[00:07:42] Speaker 04:
could be found by the jury to fall into the selecting category and therefore not being within the claim, right?

[00:07:56] Speaker 06:
That is correct, Your Honor.

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But he said that's because the jury was able to find that the other admittedly non-automatic

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parts of the method of generating an interface using the dynamic data software.

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Those were not part of the three claims steps.

[00:08:10] Speaker 02:
But you gave up that argument.

[00:08:14] Speaker 02:
I can see that the court is saying, I can't tell who is right, whether there is a contemplated human selection that itself will cause an automatic generation of some function or some other result, which is what you're arguing here, the three element source or something else.

[00:08:30] Speaker 02:
So the judge is looking, what do we do here?

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and you come up with the word automatic, and you say that you've agreed on a definition, and that means no separate developer input occurs.

[00:08:47] Speaker 02:
And you don't come back later on and try to cure that.

[00:08:51] Speaker 02:
This lack of arguing the claim scope, once you have the construction down, then the issue became the scope of that construction.

[00:09:00] Speaker 02:
And I don't see where you argued that.

[00:09:04] Speaker 06:
So we did argue this, Your Honor.

[00:09:06] Speaker 02:
In terms of train construction and in terms of automatic.

[00:09:10] Speaker 06:
So again, these are separate and perhaps nested issues, though, Your Honor.

[00:09:14] Speaker 06:
The meaning of the word automatically standing alone, that was agreed.

[00:09:18] Speaker 06:
The scope of what automatically applied to, did it modify generating a user interface, or did it modify only the three recited steps?

[00:09:24] Speaker 02:
Did you say standing alone?

[00:09:26] Speaker 02:
Do you mean that?

[00:09:28] Speaker 02:
I mean, is that the construction automatic standing alone, or just the word automatic and nothing else?

[00:09:34] Speaker 06:
Just the word automatically is all that the court construed.

[00:09:37] Speaker 02:
Right.

[00:09:37] Speaker 02:
Right.

[00:09:38] Speaker 02:
And that word was construed to mean no developer input.

[00:09:43] Speaker 02:
That's correct.

[00:09:44] Speaker 06:
And the unresolved issue was whether everything had to be automatic.

[00:09:47] Speaker 00:
Can I just ask you, can you be concrete about what steps in the overall process of generating the user interface have you pointed to that might not be under causing the server

[00:10:05] Speaker 00:
to scan, which I think probably includes, but probably is not limited to selecting the database.

[00:10:12] Speaker 00:
What concrete steps do you think fall within the more general phrase in the preamble that might not be in the front of clause B?

[00:10:27] Speaker 06:
Your Honor, do you mean in connection with the accused process?

[00:10:30] Speaker 06:
What steps of the accused process did not fall into that?

[00:10:33] Speaker 00:
That would be one way of describing it right.

[00:10:35] Speaker 00:
Because we don't insist on claim constructions or even get to claim constructions as to which there is no concrete evidentiary dispute.

[00:10:45] Speaker 00:
And I'm trying to understand, it seems to me

[00:10:48] Speaker 00:
roughly, and I'm sure you disagree with this, but that your three page list of things the developer has to do, turn a false to a true or a true to a false change, do a couple of uncommentings and add a line to say, go here and use this, that you want to say.

[00:11:12] Speaker 00:
And that all has to do with the front end of the B limitation.

[00:11:17] Speaker 00:
Whether that is actually the scanning, or it's actually the causing, which is, I think, another way of putting it is what Judge Hellerstein said.

[00:11:25] Speaker 00:
It's all selection.

[00:11:27] Speaker 00:
I think it may not be all literally selection, but it probably is all causing the server.

[00:11:35] Speaker 00:
But you're insisting that we not look only at B, or A, B, or C.

[00:11:41] Speaker 00:
that we look to other steps that must be part of the preamble creating the user interface.

[00:11:49] Speaker 00:
And I'd like to see one example of what such a step is that you're talking about.

[00:11:55] Speaker 06:
Well, so two things, Your Honor, if I may.

[00:11:57] Speaker 06:
One very concrete and easy step, and one that Dr. Shasha testified to at 34, 17, and 18, is that after he had pointed the software to the database, to the AdventureWorks database in his testimony, he had to then go manually open a new program, Entity Framework, which came up with a wizard.

[00:12:14] Speaker 06:
And you can actually see screenshots of the wizard in our appendix at 69 or 68, 92 and 2163.

[00:12:19] Speaker 04:
It's the same things that we've been talking about as where the judge found that they fell within the selectings.

[00:12:29] Speaker 04:
step which is outside of the claim.

[00:12:32] Speaker 04:
In other words, I have the same puzzlement that Judge Toronto has.

[00:12:38] Speaker 04:
What are we arguing about?

[00:12:39] Speaker 04:
I mean, you've identified a set of steps that the judge rightly or wrongly, as I understand it,

[00:12:46] Speaker 04:
said fell within the selecting step and not the creation of the user interface step.

[00:12:54] Speaker 04:
And there's a question as to whether those are properly within the claim such that you don't infringe.

[00:13:04] Speaker 04:
Are there other steps that we're talking about that would be excluded?

[00:13:13] Speaker 04:
hear from the claims if we said, well, it automatically is not limited to A, B, and C, but includes some other things.

[00:13:21] Speaker 04:
Are there other things besides these, if we call them selecting items, that would fall then within the claim if you gave it the broad automatically construction?

[00:13:35] Speaker 06:
Yes, Your Honor.

[00:13:36] Speaker 06:
And I think it might be helpful just to remember that this restriction came from Mr. Kaufman's own statements to the PTAB, when he distinguished the prior art.

[00:13:45] Speaker 04:
Well, he gives a good example that I won't use.

[00:13:48] Speaker 04:
Are there other things?

[00:13:49] Speaker 04:
I mean, I'm trying to ask a different version of or the same question that Toronto has.

[00:13:55] Speaker 04:
If we put aside these selecting items, what would have been characterized as selecting items that we were talking about earlier, are there other steps

[00:14:04] Speaker 04:
that you say have to be performed automatically that aren't within A, B, and C, and if so, what are they?

[00:14:13] Speaker 06:
So yes, Your Honor.

[00:14:14] Speaker 06:
Concretely, if we're looking at the accused process,

[00:14:18] Speaker 06:
everything from start to finish needs to be performed automatically.

[00:14:21] Speaker 06:
And that would include, in addition to what we've discussed already, the process where the generated data model is recognized and accessible to the server.

[00:14:30] Speaker 06:
Dr. Shasha testified that it was not.

[00:14:32] Speaker 02:
He had to go in... Does that include the scanning process?

[00:14:35] Speaker 06:
This is after what Dr. Shah Shah talked about the scanning process was after it completed.

[00:14:40] Speaker 06:
So the scanning process, as relied upon by Dr. Shah Shah, was the clicking of a finish button.

[00:14:46] Speaker 06:
And that caused a data model to be generated.

[00:14:49] Speaker 06:
But the data model wasn't accessible to the server.

[00:14:51] Speaker 06:
What Dr. Shah Shah said was that he had to go back to the dynamic data software, change code.

[00:14:58] Speaker 04:
OK, but that falls into the category of what I was talking about.

[00:15:01] Speaker 04:
It's falling within the selecting

[00:15:05] Speaker 04:
step, which is arguably outside the scope of the claims.

[00:15:11] Speaker 04:
In other words, this has to do with the accessibility of the database.

[00:15:18] Speaker 04:
Is there something beyond that?

[00:15:20] Speaker 06:
Yes, Your Honor.

[00:15:21] Speaker 06:
After that, Dr. Shasha testified that the scaffolding feature, actually the accused functionality of dynamic data, that wasn't even turned on.

[00:15:27] Speaker 06:
He had to additionally edit four more lines of code.

[00:15:31] Speaker 04:
I view that as falling within this selecting category that I was talking about before.

[00:15:37] Speaker 04:
And that seems to me what the district judge addressed it as being.

[00:15:43] Speaker 04:
He said there are all these things that

[00:15:46] Speaker 04:
fall within the selecting of our accessibility or whatever that don't have to be performed automatically.

[00:15:54] Speaker 04:
Is there anything else is the question?

[00:15:57] Speaker 06:
Those are the non-automatic steps that were shown in the record, your honor.

[00:16:03] Speaker 06:
But the larger issue is whether that is a method as a whole that is automatic, and it is not.

[00:16:07] Speaker 06:
It's indisputably not.

[00:16:09] Speaker 06:
Mr. Kaufman does not dispute that if automatically qualifies the method as a whole, as it did in BioRAD, as it did in Eli Lilly, then dynamic data is not an automatic process for generating an end user interface.

[00:16:22] Speaker 06:
So again, Your Honor, I think this is in the context of the substantial evidence issue, the factual issue.

[00:16:28] Speaker 06:
But the claim construction issue is a different one.

[00:16:30] Speaker 06:
It is what does automatically apply to.

[00:16:33] Speaker 06:
It is an adverb.

[00:16:34] Speaker 06:
It modifies the generation of the end user interface.

[00:16:38] Speaker 06:
Mr. Kaufman, when he was describing his patent for purposes of invalidity to the patent office, said, my invention requires a plug and play software where a developer does nothing beyond point the software to a database of interest and turn it on.

[00:16:54] Speaker 06:
He said that is why it's different from these prior art methods that were partially automated, that used things like wizards, like the entity framework wizard.

[00:17:03] Speaker 06:
That's why in my specification I said,

[00:17:05] Speaker 06:
The difference between what I am claiming and what the prior art did is that it had things like wizards and tools that helped a developer automate the process.

[00:17:14] Speaker 06:
But mine does it fully automatically without any custom programming.

[00:17:17] Speaker 02:
Would you agree that this argument that you just made, the provenance of it, is the construction of the word automatic?

[00:17:27] Speaker 06:
I don't think the provenance of it.

[00:17:28] Speaker 02:
Because it sounds to me like you're arguing claim skill of construction of automatic.

[00:17:33] Speaker 06:
That's correct, Your Honor.

[00:17:34] Speaker 06:
What automatic applies to?

[00:17:36] Speaker 02:
Yes.

[00:17:37] Speaker 02:
And that is what I don't see in the record as you supplementing the claim construction during trial or objecting during trial when you saw that the jury was going to stray or perhaps arguments of opposing counsel were intruding into this area that you're talking about now.

[00:17:58] Speaker 06:
Your honor, the summary judgment hearing was also the pretrial hearing.

[00:18:01] Speaker 06:
So the pretrial hearing is where the court said, I'm not going to resolve this.

[00:18:05] Speaker 06:
I can't tell you whether the whole thing needs to be automatic.

[00:18:08] Speaker 06:
At 4101 of the appendix, that's our oral 50A motion.

[00:18:12] Speaker 06:
and council raised this in a somewhat cursory fashion because the district court cut them off a little bit but raised it at the oral 50A motion and then we raised it again in our 50A motion.

[00:18:22] Speaker 04:
That's too late when you get to the rule.

[00:18:24] Speaker 04:
You've got to raise it pre-trial.

[00:18:27] Speaker 04:
Rule 51 dealing with jury instructions requires you to specifically raise objections to jury instructions and if you want instructions to specifically request it.

[00:18:37] Speaker 04:
We've said

[00:18:38] Speaker 04:
in the patent context, that can be satisfied by claim construction requests earlier in the proceeding, for example, at Markman.

[00:18:45] Speaker 04:
But I don't think the cases support the notion that you can come up with a new claim construction and a Rule 50 motion.

[00:18:53] Speaker 06:
Again, Your Honor, it was not a new claim construction.

[00:18:54] Speaker 04:
No, no, that's another question, but you're pointing to the Rule 50 request.

[00:19:00] Speaker 04:
That seems to me that's too late.

[00:19:02] Speaker 06:
But that was not the first time we raised this, Your Honor.

[00:19:04] Speaker 06:
We raised this at 29, 97, and 98.

[00:19:07] Speaker 06:
And the court said, I cannot resolve this.

[00:19:10] Speaker 06:
I can resolve the collateral issue of what automatically means standing alone.

[00:19:14] Speaker 06:
But I can't tell you whether everything has to be automatic.

[00:19:17] Speaker 02:
But see, at that time, when the court said that, and you could tell by the language that the court is pondering the issue,

[00:19:28] Speaker 02:
You agreed to construction of automatic and now you're stuck by the claims scope of that construction, but you never sought to clarify.

[00:19:40] Speaker 02:
You never argued that automatic should be construed, the scope of automatic should be construed in the following manner.

[00:19:49] Speaker 02:
Until too late, trial was over.

[00:19:54] Speaker 06:
Your Honor, we did, respectfully.

[00:19:56] Speaker 06:
That is the exact issue that we argued at 2997 and 98.

[00:19:59] Speaker 06:
A few pages earlier, I think at 84, the judge asked us, are you building counsel to an argument, because again, this was a summary judgment hearing as well as a pretrial hearing, that dynamic data doesn't infringe because everything, absolutely everything is not automatic.

[00:20:14] Speaker 02:
The court asked you.

[00:20:15] Speaker 02:
You agreed on a definition.

[00:20:17] Speaker 02:
Answer.

[00:20:18] Speaker 02:
I think we have resolved it.

[00:20:20] Speaker 02:
The court.

[00:20:21] Speaker 02:
No separate developer impact occurs.

[00:20:24] Speaker 02:
Microsoft counsel says, input, corrects the court.

[00:20:29] Speaker 02:
No separate developer input is required, says the court.

[00:20:32] Speaker 02:
Then Mr. Wolf says, all right.

[00:20:33] Speaker 02:
Then you go on to two other things.

[00:20:36] Speaker 02:
And that's OK.

[00:20:38] Speaker 02:
But you can't come back later on and say that the construction of automatic extends in this manner.

[00:20:44] Speaker 02:
I mean, now you're arguing during the field, the claim scope of that construction.

[00:20:50] Speaker 02:
And that's what I don't see that you clarified or brought up in an appropriate manner.

[00:20:59] Speaker 06:
Well, again, Your Honor, my understanding of this exchange is that there were two nested issues.

[00:21:04] Speaker 06:
One was what automatically meant viewed an isolation.

[00:21:07] Speaker 02:
I understand that.

[00:21:08] Speaker 02:
But you, right then Mr. Lucero said, yes, I don't know.

[00:21:10] Speaker 02:
And by the way, there's two different methods here that we're looking at.

[00:21:14] Speaker 02:
Or Lucero extended the argument, but that didn't happen.

[00:21:18] Speaker 06:
I think that, in retrospect, certainly we could have been more explicit.

[00:21:22] Speaker 06:
We viewed the explicit statement from the court.

[00:21:25] Speaker 02:
All the parties agree that this is a stipulation, correct?

[00:21:28] Speaker 06:
That's correct.

[00:21:29] Speaker 06:
But the issue of whether everything has to be automatic was a separate issue.

[00:21:33] Speaker 06:
And the court expressly said, I can't tell you who is right.

[00:21:36] Speaker 06:
I'm not going to resolve that today.

[00:21:38] Speaker 06:
We raised it again at 4104 in our oral 50A motion.

[00:21:41] Speaker 06:
We raised it in our 50B motion.

[00:21:42] Speaker 06:
And there was no allegation of waiver in the response.

[00:21:45] Speaker 06:
So under Grunowski and similar cases, any allegations of waiver, we maintain are incorrect based on repeatedly raising this for the court.

[00:21:53] Speaker 06:
But any allegations of waiver are themselves waived.

[00:21:56] Speaker 00:
Can I ask you a question on a different topic?

[00:22:00] Speaker 00:
Please.

[00:22:00] Speaker 00:
And is your argument that even though the specific, even though your and or construction that you proposed would in fact apply to no embodiment in the spec, nevertheless the language is so clear in

[00:22:23] Speaker 00:
you don't have the and or construction, you mean the conjunctive and, that even though that would not apply to any embodiment in the spec, the language compels adoption of that.

[00:22:38] Speaker 00:
Or do you disagree with the premise?

[00:22:39] Speaker 00:
Is there something in the spec that supports that construction?

[00:22:46] Speaker 06:
I think your honor is maybe 90% accurate in terms of what our argument is.

[00:22:52] Speaker 06:
We start from a place where and means and.

[00:22:54] Speaker 06:
That's what MedGraph says unless something in the specification compels a disjunctive construction.

[00:22:59] Speaker 06:
In the spec, repeatedly, three times, it uses that same and language.

[00:23:04] Speaker 06:
It doesn't ever say and or.

[00:23:05] Speaker 06:
It doesn't say or.

[00:23:07] Speaker 06:
representing, managing, and navigating in the abstract, in column 3, in column 12.

[00:23:12] Speaker 06:
There is one disclosed embodiment.

[00:23:14] Speaker 06:
There's really just one in the specification.

[00:23:17] Speaker 06:
And it's correct that it doesn't expressly disclose a retrieve mode.

[00:23:22] Speaker 06:
It doesn't disclose a delete mode display at all, but it doesn't expressly disclose a retrieve mode display that has managing capabilities.

[00:23:29] Speaker 06:
But this was language that was added during prosecution by the patentee to overcome the prior art.

[00:23:35] Speaker 06:
And he used that same and language.

[00:23:37] Speaker 06:
So he's limited by the language that he chose.

[00:23:39] Speaker 06:
There isn't a compelling portion of the specification that compels a modification to a disjunctive meaning.

[00:23:45] Speaker 04:
But wouldn't the embodiment be outside the claim if you gave it the construction and the construction that you're giving it now?

[00:23:53] Speaker 06:
I think you're right, Your Honor, that it does not disclose, does not expressly disclose the managing capability.

[00:23:58] Speaker 06:
This isn't a situation where it would be incompatible or inconsistent with the claim.

[00:24:03] Speaker 06:
Dr. McGovern talked about how a person with a skill in the art would find it trivial to incorporate this functionality into the disclosed retrieve mode display.

[00:24:11] Speaker 00:
But you're right that there's no disclosed.

[00:24:12] Speaker 00:
There's triviality of doing it and there's also what is separate senselessness of doing it.

[00:24:20] Speaker 00:
took the point, maybe even, that you kind of agree when you said, well, anyway, that it doesn't make any sense until, I think, your reply brief.

[00:24:31] Speaker 00:
You don't, I think, offer a scenario in which you say, well, even in the delete mode or the retrieve mode, one of those two, it might make sense to have a little bit of management in there.

[00:24:44] Speaker 06:
And I think, Your Honor, that the district court found that it made less sense, not that it made no sense.

[00:24:50] Speaker 06:
But it certainly would be trivial.

[00:24:51] Speaker 06:
It wouldn't break anything if you were to incorporate management functionality into the retrieve mode display.

[00:24:57] Speaker 06:
But again, Your Honor, this was language that was added during prosecution to overcome the prior art.

[00:25:02] Speaker 06:
So to the extent it does diverge from a disclosed embodiment, that was up to the patent owner to decide.

[00:25:09] Speaker 04:
All right.

[00:25:12] Speaker 04:
Unless there are further questions, I think we're out of time.

[00:25:15] Speaker 04:
We'll give you two minutes or a bubble, Mr. Abrams.

[00:25:17] Speaker 06:
Thank you, Your Honor.

[00:25:21] Speaker 05:
May I please the court?

[00:25:28] Speaker 05:
The issues that are raised here, expressly, two of them expressly noted as claim construction issues,

[00:25:37] Speaker 05:
And the third issue, which goes to sufficiency of the evidence, but on just one point, one portion of that method claim step B. But as to the claim construction issues, the first one that they raise automatically was not properly preserved for appeal.

[00:26:03] Speaker 05:
The district courts

[00:26:05] Speaker 05:
decision on the rule 50B motion was quite clear right at the very start of it was I instructed the jury that automatically meant no separate developer input is required.

[00:26:20] Speaker 05:
And the parties agreed.

[00:26:21] Speaker 05:
It just recites that.

[00:26:23] Speaker 00:
So it would be anomalous to come back and tell the district court you erred by- What do you make of what, at least this morning, is the heart of

[00:26:35] Speaker 00:
Microsoft's point that colloquially at 2997 to 98.

[00:26:40] Speaker 00:
Are you saying that's just not clear enough to have put Judge Hellerstein on notice that there were actually two points being disputed and not one?

[00:26:50] Speaker 05:
Well, if you read the pages coming up to that, Council, one of them being me and then Council from Microsoft, vigorously argued about pushing that further, whether it's going to be to expressly instruct the jury that, oh yes, and automatically applies to everything from start to finish.

[00:27:12] Speaker 05:
And on the other hand, well, no, it actually applies to the recited steps A and B. And the judge said, I'm not comfortable leaning your way or leaning my way.

[00:27:27] Speaker 05:
I can't tell you who's right.

[00:27:29] Speaker 05:
And then Microsoft's counsel says, can we resolve the claim construction issue?

[00:27:35] Speaker 05:
And then which one?

[00:27:37] Speaker 05:
Automatic.

[00:27:39] Speaker 05:
You agreed on a definition.

[00:27:40] Speaker 05:
I think we resolved it.

[00:27:42] Speaker 05:
No separate developer impact occurs, Microsoft's counsel.

[00:27:45] Speaker 00:
I think Microsoft's version of this, Ms.

[00:27:49] Speaker 00:
McCullough's version, is that until the can we resolve the claim construction issue, the lines that the district court

[00:28:00] Speaker 00:
The lines reciting what the district court said just before that said, I'm not going to resolve this scope question.

[00:28:08] Speaker 00:
And at which point I think the version is Mr. Wolf says, okay, we're done with that.

[00:28:12] Speaker 00:
I've lost it.

[00:28:13] Speaker 00:
He understands it.

[00:28:14] Speaker 00:
He rejects it.

[00:28:15] Speaker 00:
Now onto the next thing.

[00:28:16] Speaker 00:
So why is it the material before that enough to have preserved the issue?

[00:28:22] Speaker 00:
And I'm putting aside whether this issue matters.

[00:28:24] Speaker 05:
Because they gave it up.

[00:28:26] Speaker 05:
they give it up right then and there they said you know what we're going to go with work you know we're going to go with no uh... separate developer input is required because on space that applies that applies to everything anyway we're going to go with that and i you know from from calcman standpoint it was the same thing is that you know that's that's good enough we can try that we can try to try the case on that and that's that those great

[00:28:51] Speaker 05:
This is, I think, as clear as this is an agreement.

[00:28:55] Speaker 05:
And Microsoft in its reply brief here concedes that that was an agreement.

[00:29:01] Speaker 05:
The judge characterized it as an agreement.

[00:29:04] Speaker 02:
So it seems that the agreement was on a definition.

[00:29:08] Speaker 02:
If I read this correctly, then it was on the definition of the word automatic.

[00:29:16] Speaker 02:
And having a definition of that one word does not necessarily mean that you have resolved a claim construction issue.

[00:29:27] Speaker 02:
To the extent that it is an issue.

[00:29:31] Speaker 02:
But if you're attached to here, I mean, what we're arguing later is a scope of the definition that was stipulated to.

[00:29:42] Speaker 02:
And I see throughout the

[00:29:44] Speaker 02:
throughout the case and through other arguments.

[00:29:48] Speaker 02:
There seems to be question as to whether the parties actually stipulated or agreed on where the court resolved the claim scope issue.

[00:29:59] Speaker 05:
The claim on its face says a method for automatically generating a user interface for a relational database.

[00:30:08] Speaker 05:
If the agreed instruction is automatically means no separate develop or input is required.

[00:30:16] Speaker 00:
I don't think the claim actually says that.

[00:30:19] Speaker 00:
I think you may be giving more than you need to.

[00:30:22] Speaker 00:
It says a method for operating a server that includes a processor for doing that.

[00:30:30] Speaker 00:
And then it specifies the three steps of operating the server.

[00:30:36] Speaker 00:
The steps of operating the server don't have to be automatic.

[00:30:44] Speaker 05:
Yes.

[00:30:47] Speaker 05:
Forgive me for not having the exact language of the claim in front of me as I answered that question.

[00:31:00] Speaker 05:
Yes, the method comprising automatically generating an end user interface.

[00:31:06] Speaker 05:
Automatically generating an end user interface.

[00:31:09] Speaker 05:
So generating an end user interface wherein in doing that, no separate developer input is required.

[00:31:20] Speaker 05:
I think a jury understands that to mean the process is supposed to not require.

[00:31:27] Speaker 00:
Can I ask you, I guess, if this is intended to be

[00:31:30] Speaker 00:
You know, the same question that we were talking about earlier at the beginning of the argument with Ms.

[00:31:35] Speaker 00:
McCullough.

[00:31:38] Speaker 00:
Judge Hellerstein saw, and maybe Microsoft's brief here lists, an assortment of actions that the developer takes when using the Microsoft software.

[00:31:51] Speaker 00:
And one way of characterizing all of that is that that's all setting up

[00:31:59] Speaker 00:
the action of the server on the relevant database to do the scanning and the model creation and the representation and all of that, and not anything else.

[00:32:12] Speaker 00:
And so I guess I remain quite confused about why there is anything else concretely at issue here in this argument about other

[00:32:28] Speaker 00:
steps in soup to nuts creation are in the preamble that a claim construction dispute would have to be resolved to address.

[00:32:39] Speaker 05:
I would agree with that.

[00:32:40] Speaker 05:
I don't think there is.

[00:32:42] Speaker 05:
That's what it comes down to.

[00:32:45] Speaker 05:
That's what Judge Hellerstein found in his decision.

[00:32:53] Speaker 05:
There aren't any other steps required.

[00:32:58] Speaker 05:
Coming into it, you tell it which

[00:33:00] Speaker 05:
And you only have to do this the first time you use the tool, by the way.

[00:33:03] Speaker 05:
It was testimony on the record that every time you use the tool after that, you don't necessarily have to do any of this because you already have that file that you vetted it the first time.

[00:33:14] Speaker 04:
I guess the argument is this, that if the judge had instructed the jury that everything except the database selecting the step has to be done automatically, that the jury might have concluded

[00:33:29] Speaker 04:
that some of these steps that are done manually in the Microsoft embodiment don't fall within the category of selecting, and they might have come up with a different verdict.

[00:33:44] Speaker 04:
I mean, that seems to me to be the clearest way of saying this.

[00:33:47] Speaker 05:
I understand that, Your Honor.

[00:33:48] Speaker 05:
There is nothing else.

[00:33:50] Speaker 05:
There is nothing else that's required.

[00:33:52] Speaker 04:
No, no, but that's not, you're not addressing my concern.

[00:33:57] Speaker 04:
My concern is that the judge said, here's some steps that are taken manually in the Microsoft product that fall within the category of selecting.

[00:34:11] Speaker 04:
So they don't have to be performed automatically.

[00:34:15] Speaker 04:
If the jury had been instructed

[00:34:18] Speaker 04:
the way Microsoft seems to be arguing, that everything has to be done automatically except selecting, the jury might have concluded that those steps that we're talking about, those additional manual steps, fell outside of the selecting category and therefore had to be performed automatically.

[00:34:38] Speaker 04:
Do you understand what I'm saying?

[00:34:39] Speaker 05:
Yes.

[00:34:40] Speaker 05:
But we would argue, or we did argue, that

[00:34:43] Speaker 05:
The preparatory step is telling the software which database that it had to operate on.

[00:34:54] Speaker 05:
It can't be construed as part of the method.

[00:35:00] Speaker 05:
That's before you perform the method.

[00:35:02] Speaker 05:
Things that happen before you perform a claim method aren't part of the claim method.

[00:35:08] Speaker 04:
Is what you're saying that as a matter of law, there would be harmless error?

[00:35:13] Speaker 04:
in failing to give the instruction that I'm talking about because there's no way that you could find that these were things other than selecting.

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

[00:35:23] Speaker 00:
And you don't really mean before you perform the method.

[00:35:26] Speaker 00:
The only thing that has to be automatic is what the server does.

[00:35:31] Speaker 00:
So that you, sitting in front of the developer, is not required, is not covered by this automatic requirement.

[00:35:42] Speaker 05:
It's all about

[00:35:43] Speaker 00:
Getting all of the right inputs and application software together.

[00:35:49] Speaker 00:
And that seems to me your argument is that each of the human elements or human actions that microsynthesis, I think your argument that all the, every one of the human actions taken is part of getting the server ready.

[00:36:06] Speaker 00:
to use the correct software applied to the correct database.

[00:36:12] Speaker 05:
Yes, we would agree with that.

[00:36:13] Speaker 00:
And it's only that application, what the server does, that has to be automatic.

[00:36:16] Speaker 05:
Yes, we would agree with that.

[00:36:20] Speaker 05:
We're out of time.

[00:36:21] Speaker 05:
Anything else?

[00:36:22] Speaker 04:
And?

[00:36:23] Speaker 05:
Well, and the... And I will tell you,

[00:36:33] Speaker 00:
Attempted to find a linguistic opening in the claim, and right now I haven't found one.

[00:36:40] Speaker 00:
If this would be a good opportunity for you to say, here's how our argument actually has a linguistic opening in the claim, putting aside your argument that this can't possibly be right because it doesn't make enough sense and it would be different from the SPAC.

[00:36:59] Speaker 05:
Yeah, and it's just like the case law that there's the case law that we cited that looks at similar language and says, you know, is it, whether it's disjunctive or not, can be overridden by a strong contextual evidence, which is what we have, which is, you know, that's actually refactual nature.

[00:37:24] Speaker 04:
But the opening is... The whole argument is that this is inconsistent with the specification because it would exclude embodiments that are described in there, right?

[00:37:38] Speaker 05:
Well, there's a little more to the argument.

[00:37:41] Speaker 05:
The argument is also the way the claim is written, the and construction is within the clause

[00:37:52] Speaker 05:
is within a sub clause for representing, navigating, and managing, that the and, if you want to interpret it as conjunctive, allows us to specify the set of operations that are within the processes.

[00:38:09] Speaker 05:
The literal language of the claim says that each said display mode integrates processes

[00:38:17] Speaker 05:
What are the processes?

[00:38:19] Speaker 05:
The and informs us of the set of processes.

[00:38:22] Speaker 05:
So it's conjunctive in that sense.

[00:38:24] Speaker 05:
And it's also the further factor, the and really is meaningful because the set of processes, the representing, navigating, and managing, it's our position consistently throughout this case, must be performed

[00:38:44] Speaker 05:
Within that set of display modes, all three of those processes must be conformed.

[00:38:53] Speaker 05:
And has meaning in the sense that taken together, they all have to perform them.

[00:38:58] Speaker 05:
But the claim itself does not say that not only that each mode integrates processes, but that each mode integrate processes for each and every one of

[00:39:09] Speaker 05:
representing, navigating, and managing.

[00:39:12] Speaker 05:
That's our linguistic argument on that.

[00:39:20] Speaker 05:
I think we're out of time.

[00:39:22] Speaker 05:
There is record evidence on all three have to be there among those modes.

[00:39:28] Speaker 05:
Okay.

[00:39:28] Speaker 05:
Thank you, Mr. Eber.

[00:39:29] Speaker 05:
Thank you.

[00:39:36] Speaker 06:
Thank you, Your Honours.

[00:39:37] Speaker 06:
I want to just start with Judge Toronto's last question, which, and I apologize for mis-paraphrasing, but something along the lines of, is pointing the software to a database and then telling the software what additional software it needs to use to create an end user interface, is that all appropriately part of the selecting?

[00:39:57] Speaker 06:
And to your honor's point, would that then have been harmless error if a construction were in fact given?

[00:40:03] Speaker 06:
That is exactly contrary to what Mr. Kaufman told the PTAB his invention was in his patent donor preliminary response.

[00:40:10] Speaker 06:
He said, automatically generating means it's all done by a machine.

[00:40:15] Speaker 06:
It's all done by a server.

[00:40:17] Speaker 06:
You trigger it as a developer.

[00:40:20] Speaker 06:
You point it to a database, and you tell it to turn on.

[00:40:23] Speaker 06:
And that is all a developer has to do.

[00:40:25] Speaker 06:
That is what he told the patent office.

[00:40:28] Speaker 06:
And I think that's similar to what we just heard, that there isn't a dispute that automatically, on its face, applies to everything.

[00:40:34] Speaker 06:
It applies to the entire process of generating an end user database.

[00:40:38] Speaker 06:
And that exactly is our argument, Your Honor.

[00:40:41] Speaker 06:
There is no dispute that if

[00:40:43] Speaker 06:
The claim means what it says.

[00:40:44] Speaker 06:
If automatically generating an end user database means automatically generating the database, dynamic data does not infringe.

[00:40:51] Speaker 06:
There's extensive manual input at all parts of the process.

[00:40:56] Speaker 06:
And that is my last word on the automatically argument, Your Honors, unless you have further clarifications.

[00:41:02] Speaker 06:
Thank you.

[00:41:05] Speaker 04:
You're done?

[00:41:05] Speaker 04:
Thank you very much.

[00:41:07] Speaker 04:
Right now we'll do the cross appeal.

[00:41:09] Speaker 04:
Mr. Patchen.

[00:41:11] Speaker 04:
Let's set it for five minutes, please.

[00:41:17] Speaker 03:
Go ahead.

[00:41:17] Speaker 03:
May it please the Court, and thank you, Your Honor, for giving me the opportunity to argue this before you today.

[00:41:23] Speaker 03:
There are a few things with respect to prejudging interest that both sides and the Court agreed upon.

[00:41:30] Speaker 03:
One, prejudging interest is ordinarily awarded in patent infringement cases.

[00:41:35] Speaker 03:
Two, the hypothetical negotiation that took place between the parties would have been in February 2011.

[00:41:42] Speaker 03:
So really, there are two questions at issue.

[00:41:45] Speaker 03:
One, did the jury's damages calculation somehow include prejudgment interest in 2011?

[00:41:52] Speaker 04:
You're correct that the jury wasn't asked to address the prejudgment interest question.

[00:42:00] Speaker 04:
There's this alternative theory that there was unreasonable delay in prejudice.

[00:42:06] Speaker 04:
Could you address that?

[00:42:08] Speaker 03:
Certainly, Your Honor.

[00:42:10] Speaker 03:
There was, and that's the second question, was there undue delay or prejudice?

[00:42:18] Speaker 03:
And again, the court respectfully was incorrect and abused its discretion in reaching that conclusion that there was undue delay.

[00:42:28] Speaker 03:
The court found two- Five years is a pretty long time to bring suit.

[00:42:38] Speaker 03:
Yes, Your Honor, there are cases that

[00:42:40] Speaker 03:
have found shorter periods and longer periods.

[00:42:43] Speaker 03:
However, the case law is clear that mere delay alone is not sufficient.

[00:42:49] Speaker 03:
There has to be prejudice.

[00:42:52] Speaker 04:
And so they say, well, we might have done a workaround if we'd known about this earlier.

[00:42:59] Speaker 03:
That's correct.

[00:43:00] Speaker 03:
There are two reasons that the court found for prejudice.

[00:43:04] Speaker 03:
One, the delay created more interest.

[00:43:06] Speaker 03:
Again, the case law is clear, that is not sufficient to be the prejudice.

[00:43:09] Speaker 03:
The second reason is, as you said, they might have done a workaround.

[00:43:14] Speaker 03:
However, the record is also clear, they didn't actually ever do a workaround, not in 2011, not in 2016, not by 2020 at the time of the trial.

[00:43:25] Speaker 03:
If they really believed that they were trying to avoid prejudice and trying to address that issue, they would have done the workaround later.

[00:43:35] Speaker 03:
The reason why the workaround issue was presented to the court and the jury was not because they were trying to address prejudgment interest.

[00:43:44] Speaker 03:
They were trying to argue that that workaround was the non-infringing alternative, sufficient to reduce effectively what the damages were.

[00:43:53] Speaker 03:
There was testimony that that was not an acceptable workaround.

[00:43:56] Speaker 03:
And in fact, the jury issued an award for $7 million, not this $10,000 that Microsoft said it would cost to do the workaround.

[00:44:06] Speaker 03:
it's clear that that workaround was not truly prejudicial.

[00:44:10] Speaker 03:
And $10,000 for Microsoft is also not that much money.

[00:44:14] Speaker 03:
If it was truly prejudicial, they would have made the change in 2016.

[00:44:18] Speaker 03:
They didn't.

[00:44:20] Speaker 03:
They didn't in 2020.

[00:44:22] Speaker 03:
Microsoft's policy is they don't like to break their products because they don't want to make their customers angry.

[00:44:27] Speaker 03:
And there's evidence in the record on that point.

[00:44:30] Speaker 00:
So would one way of, I guess what I'm hearing about your prejudice point that, or at least the point that's registering with me is that the district court's finding of prejudice

[00:44:50] Speaker 00:
to the extent it was based on a missed opportunity to avoid infringement by changing the product is essentially inconsistent with the jury's finding of no non-infringing alternative.

[00:45:04] Speaker 03:
That's correct, Your Honor.

[00:45:07] Speaker 03:
And the fact also that they didn't, Microsoft itself didn't implement it, is further evidence that there was no prejudice.

[00:45:16] Speaker 03:
If immediately upon filing the lawsuit, Microsoft had shortly thereafter done the work around, it would have shown that the delay could have caused prejudice.

[00:45:26] Speaker 03:
The fact that they hadn't five years after filing is evidence that that was not going to be a way for them to avoid prejudice.

[00:45:34] Speaker 03:
So there is just no factual underpinning to support that conclusion.

[00:45:39] Speaker 04:
OK.

[00:45:40] Speaker 04:
Thank you, Mr. Patchen.

[00:45:41] Speaker 04:
We'll give you a minute for rebuttal.

[00:45:43] Speaker 04:
Uh, Ms.

[00:45:45] Speaker 04:
McCulloch?

[00:45:47] Speaker 06:
Thank you, Your Honors.

[00:45:49] Speaker 06:
This is an issue that's read for abusive discretion.

[00:45:52] Speaker 04:
Okay, but I don't see where there's any testimony on this prejudice question that they would have done the workaround if they filed suit earlier, putting aside whether the workaround would have been non-infringing.

[00:46:04] Speaker 04:
It's just, well, he says it's possible to do it.

[00:46:08] Speaker 04:
It would have cost $10,000.

[00:46:10] Speaker 04:
There's no testimony that he says, well,

[00:46:13] Speaker 04:
If they'd sued earlier, we would have done the work around and avoided the problem.

[00:46:17] Speaker 06:
So, Your Honor, the court cited that testimony, and I think it does go a little farther than maybe we could have.

[00:46:24] Speaker 06:
Scott Hunter, a Microsoft's engineer, testified that... Where do they say they would have done it?

[00:46:28] Speaker 04:
I don't see that testimony.

[00:46:30] Speaker 06:
So, at appendix 3751, Mr. Hunter said, we would use the same tech to block the EF design, the entity framework design.

[00:46:41] Speaker 06:
That's how they would have done it.

[00:46:43] Speaker 06:
There is other testimony that uses the could language.

[00:46:46] Speaker 06:
Your Honor is correct about that.

[00:46:48] Speaker 06:
But it was not clear error.

[00:46:49] Speaker 04:
Where does he say if they'd sued earlier, we would have done it?

[00:46:53] Speaker 06:
So he is not specifically testifying in the context of a prejudgment interest inquiry.

[00:46:58] Speaker 06:
Your Honor is right about that.

[00:46:59] Speaker 06:
He's testifying in the context of what Microsoft could have done in 2011 had they been informed.

[00:47:04] Speaker 00:
The would there is how.

[00:47:06] Speaker 06:
That's correct, Your Honor.

[00:47:07] Speaker 00:
Yeah, not that it would have actually done it.

[00:47:10] Speaker 06:
That's correct.

[00:47:11] Speaker 06:
That's correct.

[00:47:11] Speaker 06:
And again, this was in the context of an invalidity issue, not in the context of a prejudgment interest issue.

[00:47:18] Speaker 06:
But if we're talking about what the court was in its discretion to find, looking at the evidence of record, it can't be said to be clear error for the courts to have found that if Microsoft had been aware of this issue of the alleged infringement in 2011.

[00:47:29] Speaker 04:
The court didn't even find that they would have done it.

[00:47:30] Speaker 04:
The court doesn't say that.

[00:47:32] Speaker 04:
So they might have done it or could have done it, something like that.

[00:47:36] Speaker 04:
And the inability to be given that... The court does not say they would have done it, right?

[00:47:41] Speaker 06:
That's correct, Your Honor.

[00:47:42] Speaker 06:
But the court said that the inability for Microsoft to have that choice, that was the prejudice.

[00:47:48] Speaker 06:
It was not clear error to make that finding.

[00:47:50] Speaker 06:
And there was an indisputed five-year delay, undue delay, that the court found.

[00:47:54] Speaker 06:
The combination of that finding of prejudice and the finding of clear error appropriately underpinned the court's denial of the motion for prejudgment interest.

[00:48:04] Speaker 06:
And I will say one more thing that

[00:48:06] Speaker 06:
The allegation of 2016 being the relevant time, and that as of 2016, no design around was made, that that somehow undermines Microsoft's position, that the usage for dynamic data had fallen to almost nothing in 2016.

[00:48:19] Speaker 06:
There's a stipulation of usage less than 800 users a month in Appendix 3845.

[00:48:25] Speaker 06:
So if Microsoft had been given the opportunity in 2016 to make a design around, it would have had no impact.

[00:48:31] Speaker 06:
All of the damages would have been in hindsight.

[00:48:34] Speaker 06:
So there is no inconsistency with Microsoft not having a design around made in 2016 when usage was essentially zero.

[00:48:41] Speaker 04:
OK, thank you.

[00:48:41] Speaker 04:
Thank you, Your Honors.

[00:48:45] Speaker 03:
Mr. Patchett, you have a minute.

[00:48:48] Speaker 03:
Thank you, Your Honor.

[00:48:49] Speaker 03:
Again, the court found two reasons for finding, for denying prejudicial interest

[00:48:55] Speaker 03:
One, the interest accruing over the delay.

[00:49:00] Speaker 03:
That's incorrect as a matter of law.

[00:49:03] Speaker 03:
That taken along with the fact that there was no prejudice makes this further an abuse of discretion.

[00:49:12] Speaker 03:
If it had been simply one or the other, it's one thing.

[00:49:15] Speaker 03:
But here, you take them as a whole.

[00:49:18] Speaker 03:
The judge abused his discretion to find one, one basis incorrect as a matter of law.

[00:49:23] Speaker 03:
To prejudice, there's no evidence.

[00:49:26] Speaker 03:
As we've discussed, there's nothing to support that conclusion that Microsoft actually was prejudiced as a result of the delay.

[00:49:32] Speaker 03:
And that's what's required.

[00:49:33] Speaker 03:
You must have prejudice for there to be no prejudgment interest.

[00:49:36] Speaker 03:
Mere delay alone is not sufficient.

[00:49:40] Speaker 04:
Okay.

[00:49:41] Speaker 04:
Thank you, Mr. Bancho.

[00:49:43] Speaker 04:
All right.

[00:49:43] Speaker 04:
That concludes our arguments.

[00:49:44] Speaker 04:
And Kaplan, thank both counsel.

[00:49:47] Speaker 04:
I thank all three counsel.

[00:49:48] Speaker 04:
The case is submitted.