[00:00:00] Speaker 00: where the term was not used in the specification, and the term in the claim is not in the specification, but it was still understood. [00:00:10] Speaker 00: But going to your second part of the question, even though the presumption was overcome, and this should have been a means of function claim, then the actual structure identified by the district court was an error. [00:00:23] Speaker 00: The district court identified a controller with a database management system [00:00:29] Speaker 00: with an algorithm thereafter. [00:00:31] Speaker 00: But the mistake there is, that's the same computational element referred to in the claim. [00:00:38] Speaker 00: The first element of the claim is at least one computational element within the set system. [00:00:43] Speaker 00: The second element is a use mechanism coupled to set computational element. [00:00:47] Speaker 00: The court determined that the means, the structural component, was the actual computational element. [00:00:55] Speaker 00: It's actually coupled to that. [00:00:56] Speaker 00: It doesn't make sense. [00:00:57] Speaker 00: If you read the actual specification, what is the proper structure, if it is a means of function, is the counter. [00:01:04] Speaker 00: And the counter is clearly identified in column lines, column three, line 48 to 54, where it says the preferred environment of the President of the convention uses page counts, and the parameter is related to the user, the customer usage, according to the ORT tracking chart. [00:01:20] Speaker 00: It actually tells you exactly what it's been used for. [00:01:23] Speaker 04: I'm finding the argument a bit confusing. [00:01:32] Speaker 04: with a different term in the specification, and held that because the different term connotes sufficient structure, you avoid means plus function. [00:01:42] Speaker 04: This seems like you're making some leaps to get to where you want to go. [00:01:46] Speaker 04: And I don't know, maybe you can help me understand what your argument is, that there are other cases, because I don't know of any, which can embrace your theory to get where you want to go. [00:01:57] Speaker 00: I think the case that's closest is Greenberg v. Etikon. [00:02:00] Speaker 00: And I believe that that would be the closest case. [00:02:03] Speaker 00: But then after the district court decided there was an e-plus function claim, it then determined that there was non-infringement. [00:02:14] Speaker 00: Even with the construction given by the district court, there were factual issues in dispute at that point. [00:02:21] Speaker 00: The district court said that MASA, my client, relied entirely on the opinion of its expert. [00:02:28] Speaker 00: That's not true. [00:02:29] Speaker 00: It also relied on the technical documents of RICO and the testimony of RICO's engineers. [00:02:35] Speaker 00: Those are cited throughout the expert report, but they are there. [00:02:38] Speaker 00: If you look at the actual pages that are actually pasted into the expert report, there is structure there that would equate to the structure that the district were found in his functional analysis. [00:02:55] Speaker 00: And specifically, Appendix 13472, [00:02:59] Speaker 00: through 486, there is a wealth of information in that extra report that shows the actual database manager and the algorithms that's been described by this report. [00:03:13] Speaker 00: So there are three arguments for making this claim. [00:03:15] Speaker 00: One, it shouldn't be a means plus function. [00:03:16] Speaker 00: The presumption was overcome. [00:03:18] Speaker 00: Two, if it was a means plus function, then it should be a different structure. [00:03:22] Speaker 00: Means plus function analysis. [00:03:24] Speaker 00: And specifically, at appendix 13472 through 486, [00:03:30] Speaker 00: There is a wealth of information in that expert report that shows the actual database manager and the algorithms that have been described by the district court. [00:03:41] Speaker 00: So there's three arguments for making for this claim. [00:03:44] Speaker 00: One, it shouldn't be a means plus function. [00:03:45] Speaker 00: The presumption was overcome. [00:03:46] Speaker 00: Two, if it was a means plus function, then it should have been a different structure. [00:03:50] Speaker 00: It should have been a counter structure. [00:03:52] Speaker 00: And three, there are issues of fact, regardless if the claim instruction was not incorrect. [00:03:59] Speaker 00: Unless you have any more questions on the 285 patent, I'll go to the 314 patent next. [00:04:04] Speaker 04: Well, you had a divided infringement argument with respect to summary judgment of a non-imprisonment. [00:04:11] Speaker 00: That was the method claim, and there were... Claim 14. [00:04:14] Speaker 04: Okay. [00:04:14] Speaker 00: So you were not... Well, I'm just trying to get through time here. [00:04:19] Speaker 00: Sure. [00:04:19] Speaker 00: Go ahead. [00:04:20] Speaker 00: It is something... Well, the papers are good on that. [00:04:23] Speaker 00: The 314 patent, here the district court made a claim interpretation at the summary judgment stage of the term display. [00:04:32] Speaker 00: It was not briefed in the claim instruction stage. [00:04:34] Speaker 00: And during the summary judgment, the district court found a display to be a monitor or physical hardware. [00:04:42] Speaker 00: It was not a software display. [00:04:46] Speaker 00: But that's clearly incorrect. [00:04:48] Speaker 00: If you look at the actual preamble of the claim, what the patent is about, an interface [00:04:53] Speaker 00: implemented in a computer. [00:04:56] Speaker 00: A monitor cannot be implemented in a computer. [00:05:00] Speaker 00: That interface comprises a display. [00:05:03] Speaker 00: Now in this patent, it actually gives you a figure showing the display, figure four. [00:05:09] Speaker 00: And column 14, line 62, 67 describe figure four. [00:05:13] Speaker 00: It says referring now to figure four, this is showing a representation of a graphical user interface display. [00:05:22] Speaker 00: 400. [00:05:23] Speaker 00: according to the preferred environment. [00:05:24] Speaker 00: The display, 400, includes viewer 306 and desktop 302 components. [00:05:30] Speaker 00: And that tells you what the display is, has a picture of it in figure four, and says that the display includes a viewer 306 and desktop 302. [00:05:40] Speaker 00: So then you look down to the column 13, lines 29 through 37, and figure out what is the viewer 306. [00:05:47] Speaker 00: And it says in that column, that paragraph, [00:05:52] Speaker 00: And the preferred body of the viewer component is implemented using the Adobe Acrobat version 405 manufactured by Adobe System, that's software. [00:06:02] Speaker 00: And then the desktop 302, this is column 13, lines 20 through 28. [00:06:08] Speaker 00: The desktop 302 is preferably implemented using an object-oriented program language, which implements the object-oriented nature of the GUI. [00:06:16] Speaker 04: Well, I guess, I mean, we're going through just details of the spec. [00:06:19] Speaker 04: I mean, the district court's main argument was that there was use of the term on. [00:06:25] Speaker 04: Right. [00:06:26] Speaker 04: And he rested on that. [00:06:27] Speaker 04: Well, why doesn't that make a lot of sense? [00:06:29] Speaker 00: Because you can rest on a GUI, a GUI. [00:06:34] Speaker 00: In software parlance, [00:06:37] Speaker 00: When it says on a display, that's not exclusive of having it on a graphical user interface display, a software display. [00:06:48] Speaker 00: This patent doesn't mention the word monitor anywhere in the claims or in the specification, nowhere. [00:06:54] Speaker 00: This is about a software display. [00:06:57] Speaker 00: It's specifically identified as a software display. [00:06:59] Speaker 00: The components are software. [00:07:02] Speaker 00: It identifies in the specification. [00:07:05] Speaker 00: The only thing that can be surmised from this is that it's a software display. [00:07:11] Speaker 00: That being said, if this was decided at the construction stage, when the case was still ongoing, then my client would have had a chance to put in evidence that Ricoh actually sells hardware as well. [00:07:28] Speaker 00: This was decided at summer judgment when the software display was there. [00:07:32] Speaker 00: RICO sells massive printers and computers. [00:07:34] Speaker 00: They have displays on, physical displays. [00:07:36] Speaker 00: That was not our position. [00:07:38] Speaker 00: And based on the specification, it was very clear this was about a software display. [00:07:42] Speaker 00: So for that fact, the summary judgment of non-infringement should be set aside as well, even if the print instruction stands. [00:07:53] Speaker 00: But there's also testing testimony from the engineer. [00:07:57] Speaker 04: There's also an argument of forfeiture in this case, right? [00:08:00] Speaker 04: The other side argues, and I didn't see your response really fulsome and gray. [00:08:06] Speaker 00: Well, in our reply brief, we talked about the forfeiture. [00:08:09] Speaker 00: They said we did not raise this issue, but how could we raise it if it came up for the first time in summer judgment? [00:08:15] Speaker 00: The claim instruction came up at summer judgment. [00:08:19] Speaker 00: So we were not given the opportunity to put in evidence if the claim instruction is correct, which we would say is not. [00:08:30] Speaker 00: And finally, let me just get real quickly, if I'm running out of time here, on the two patents that were invalidated indefinitely. [00:08:36] Speaker 00: The 3005 patent, where the district court determined that a guy played pivotally at least substantially around said access to guide was a degree of measure. [00:08:48] Speaker 00: But if you look at the actual claim language, it talks about, it refers back to the ANSI basically said access to guide. [00:08:56] Speaker 00: So when it says said access, it refers back up to the first element of the skimmer. [00:09:00] Speaker 00: In this particular instance, the patentee gave great detail that this was a positional location, not a degree of measurement. [00:09:11] Speaker 00: Positional location is relative to the skimmer, and it comprises a rotational fictional. [00:09:15] Speaker 00: And it actually gives three figures. [00:09:17] Speaker 00: There's 9, 10, and 12 in the patent showing where that would be. [00:09:21] Speaker 00: And also describes in great detail in columns 24 through 34. [00:09:28] Speaker 00: And let me touch briefly as well on the 269 patent. [00:09:34] Speaker 00: This is where the district court determined it was indefinite because of the term first position and second position. [00:09:40] Speaker 00: Now, those are Jepson claims. [00:09:43] Speaker 04: Yeah, and I understood you to be making an argument that any Jepson claim preemptive language is insulated for indefinite assaulting. [00:09:51] Speaker 04: Is that your view? [00:09:52] Speaker 04: So can you cite us some cases? [00:09:54] Speaker 00: It's not my view. [00:09:55] Speaker 00: It's not our view absolute. [00:09:57] Speaker 00: It is something that's well understood in the art. [00:10:00] Speaker 00: And because this objection thing is a conventional standard, and what I want to point out to the court this morning is that the judge recognized that that language was put in at the behest of the examiner. [00:10:13] Speaker 00: The judge recognized that in the claim instruction order. [00:10:15] Speaker 00: This court has since, just this year, issued an order in natural simulations, 23F41334, [00:10:24] Speaker 00: They said if it's at the behest of examiners with presumption, it would be valid. [00:10:27] Speaker 04: Didn't that language change? [00:10:31] Speaker 02: Didn't we reissue that? [00:10:32] Speaker 00: I think on different grounds. [00:10:36] Speaker 04: Wasn't that language deleted from the original opinion? [00:10:39] Speaker 04: the language you're relying on? [00:10:42] Speaker 04: I think it was some 28J letter that pointed that out, so I don't think I'm the first one to recognize that. [00:10:48] Speaker 04: Are you going to say anything on that? [00:10:51] Speaker 04: I think I do, Your Honor, yes. [00:10:52] Speaker 03: Okay, why don't you save your remaining time for rebuttal? [00:10:54] Speaker 03: Thank you. [00:10:55] Speaker 03: Mr. Walsh? [00:11:06] Speaker 01: Good morning. [00:11:07] Speaker 01: May I please report? [00:11:09] Speaker 01: My name is Ryan Walsh. [00:11:10] Speaker 01: I'm from Jones Day here on behalf of Rico USA. [00:11:16] Speaker 01: Your Honor, over the course of the five years of this litigation, a lot [00:11:21] Speaker 01: A lot has changed. [00:11:23] Speaker 01: There's been a lot of inconsistency, a lot of contradiction in Moss's infringement allegations. [00:11:30] Speaker 01: That inconsistency has continued on this appeal. [00:11:34] Speaker 01: But one thing has not changed since early in this case, and that's the evidence that has been developed, or really the lack thereof. [00:11:43] Speaker 01: And it's resulted in a failure of proof across the board on Moss's infringement claims. [00:11:48] Speaker 02: Council, I want to ask you about the indefiniteness holding. [00:11:51] Speaker 02: Yes, sir. [00:11:54] Speaker 02: Substantially at about set axis, that just doesn't strike me as being indefinite. [00:12:04] Speaker 02: And access has only a certain distance, and tell me what's indefinite about that, and then we'll get to first and second position. [00:12:15] Speaker 01: Sure, sure. [00:12:17] Speaker 01: Well, Judge Lurie, I think the place to start is the claim language, and the term itself is a first guide plate, pivotable at least substantially about said access. [00:12:30] Speaker 01: Our belief is that, again, that that language is indecipherable on its own. [00:12:34] Speaker 01: I think what MASA is arguing is to rewrite the claim so that the claim would read a first pivotable guide plate at least substantially about said axis. [00:12:47] Speaker 01: That's not what the claim says. [00:12:48] Speaker 01: The claim says, excuse me, a first guide plate, pivotable, at least substantially about said axis. [00:12:56] Speaker 01: Now, I think some of the best evidence of the reason that that term is indefinite is frankly their expert. [00:13:04] Speaker 01: their expert in his declaration at claim construction, which can be found at A12417-19, he cycles through six or seven different, or maybe five or six different interpretations of that language, including the positional location that they're relying upon now. [00:13:30] Speaker 01: But that was not their position at claim construction. [00:13:32] Speaker 01: In fact, at the claim construction hearing itself, [00:13:35] Speaker 01: they argued that it was a term of variability. [00:13:37] Speaker 02: Substantially would seem to be in contradistinction to insignificantly about set access or totally about set access. [00:13:50] Speaker 02: I mean, how much really variability and indeterminacy is there about that word? [00:13:58] Speaker 01: Well, I think first and foremost, Your Honor, we are not saying that the term substantially on itself is inherently indefinite. [00:14:05] Speaker 01: That term is used 12 times in this patent. [00:14:10] Speaker 01: But each time it's used other than this time, it's talking about substantially parallel to the feed path or substantially along the feed path. [00:14:19] Speaker 01: And so that term, one of ordinary skill in the art, could look at that substantially along the feed path term in the claim and determine [00:14:27] Speaker 01: some sort of contour for that claim. [00:14:29] Speaker 01: This term is used only in this claim. [00:14:31] Speaker 01: It was added as an amendment during prosecution without any explanation. [00:14:37] Speaker 01: Claim one, importantly claim one, independent claim one, also has a guide plate that is mounted to be pivotable about the axis. [00:14:47] Speaker 01: That's the language in claim one. [00:14:49] Speaker 01: This language was added to claim two, what became claim two, during prosecution without any explanation. [00:14:56] Speaker 01: It doesn't appear anywhere in the specification. [00:14:58] Speaker 01: It doesn't appear. [00:14:59] Speaker 01: There's nothing in the file history that would suggest that it's definite or that one of ordinary skill would understand it. [00:15:06] Speaker 02: How about a first and second position? [00:15:08] Speaker 02: It doesn't say the first or the second. [00:15:12] Speaker 02: It's A, which sounds like it could be variable, but not necessarily indefinite. [00:15:20] Speaker 01: Right. [00:15:20] Speaker 01: Well, Your Honor, I think the important thing to understand about the 269 patent is that, one, it's two pages. [00:15:29] Speaker 01: There's very little there. [00:15:33] Speaker 01: The idea, the argument that first position and second position were known in the art as they're in the preamble of the Jepson claim, that may be true. [00:15:43] Speaker 01: But they're not defined in the art. [00:15:45] Speaker 01: There's nothing in the specification. [00:15:47] Speaker 03: Why do you need to define it? [00:15:49] Speaker 03: It's just simple. [00:15:49] Speaker 03: The language just dictates a sheet is moved from the supply sheet stack to a location. [00:15:54] Speaker 03: It could be any location. [00:15:55] Speaker 03: You don't need to define what location is. [00:15:57] Speaker 03: You just have to move it from the sheet stack to a different location. [00:16:02] Speaker 03: and then move it again to another different location. [00:16:05] Speaker 03: There's a first location and a second location which are not the supply sheet stack. [00:16:10] Speaker 03: That's it. [00:16:10] Speaker 03: Why is that indefinite? [00:16:12] Speaker 03: It might be broad, might be able to invalidate it because it's so broad, but [00:16:15] Speaker 03: I don't see how it's indefinite. [00:16:18] Speaker 01: Your Honor, I think the key is, you're right, what this patent is about, all it's talking about is basically fluttering sheet on the sheet supply stack. [00:16:28] Speaker 01: But the key is not this. [00:16:30] Speaker 01: This was happening before this patent was filed. [00:16:32] Speaker 03: No, that is relevant to the issue we're resolving. [00:16:34] Speaker 03: The issue we're resolving is whether or not saying something has to be moved from one position to a second position is indefinite or not. [00:16:41] Speaker 03: You don't have to know what the position is. [00:16:43] Speaker 03: You don't have to know where the position is to know that it's definite. [00:16:45] Speaker 03: It just has to be a different position. [00:16:48] Speaker 01: Your Honor, the key is that this patent is all about timing. [00:16:52] Speaker 04: Well, isn't it not answering my question? [00:16:54] Speaker 01: No, I am. [00:16:55] Speaker 04: I don't want to answer the question for you, but I thought in your briefs it became clear to me that perhaps the answer to that question is that that wasn't the argument that your friend on the other side was making. [00:17:06] Speaker 04: It seemed to me, reading the record, that they accepted [00:17:10] Speaker 04: that you have to know what the specific positions are. [00:17:13] Speaker 04: And then the fight was about whether there was disclosure of that. [00:17:18] Speaker 04: So I kind of, agreeing with [00:17:21] Speaker 04: the sentiment you're hearing from the panel, my answer to that was only that I didn't see that as the way the issue played out before the court. [00:17:30] Speaker 04: The outcome may have been different if that were the position your friend took. [00:17:33] Speaker 04: Am I wrong? [00:17:34] Speaker 01: No, that's not incorrect. [00:17:36] Speaker 01: But back to Judge Moore's point, the reason it's important, Your Honor, is if we don't know what the first position is and what the second position is, then we don't know the timing. [00:17:46] Speaker 01: And there's no way to know whether you infringed or not. [00:17:49] Speaker 01: that sheet cannot be in or being moved to the first position while that fluttering is going on. [00:17:56] Speaker 01: That's part of the agreed constructions in this case. [00:17:58] Speaker 01: And the claim specifically says that the new steps can't be happening according to the claim construction when the sheet is being moved to the first position or the second position. [00:18:09] Speaker 01: So if we don't know what those sheets are, there is [00:18:14] Speaker 01: There is no way for one of ordinary skill in the art to know whether they're infringing the claim or not infringing the claim. [00:18:20] Speaker 01: We have to know. [00:18:21] Speaker 01: They're expert testified. [00:18:23] Speaker 01: Again, and I would certainly recommend that you review that, which is at A12422 through 23. [00:18:31] Speaker 01: In his declaration, he goes through a whole host of possible locations for the first location. [00:18:41] Speaker 01: He says it could be on the lifting mechanism. [00:18:43] Speaker 01: That's in paragraph 39. [00:18:44] Speaker 01: He said it could be adhering to the belt. [00:18:46] Speaker 01: All these different positions, basically anywhere in the printer. [00:18:48] Speaker 03: Because it could be any of those, because it just has to be a first position and a second position. [00:18:52] Speaker 03: And a PASIDA can reasonably assess whether there's infringement by just determining whether the sheet has moved to at least two different locations following the supply stack. [00:19:01] Speaker 03: Done. [00:19:02] Speaker 01: But if the improved steps, Your Honor, the whole invention, if they're only the improved steps, if they're happening when the sheet is not in or being moved to the first position or the second position, there is no way for a posita to understand whether the device is infringing or not infringing. [00:19:20] Speaker 01: Because it has to know, look, if the fluttering is happening when it's in the first position, it's not infringing. [00:19:28] Speaker 01: But if it's not in the first position or being moved to the first position, it might be infringing. [00:19:32] Speaker 01: If it's being moved to the second position or in the second position and it's fluttering, again, that's not infringing. [00:19:39] Speaker 01: So you have to know what those positions are to understand the timing. [00:19:44] Speaker 03: I'm not sure I agree with you, but regardless, you said that you agreed with Judge Prost's argument that she made on your behalf. [00:19:52] Speaker 03: And so let me ask you, my understanding of what she said and that you agreed to is that Mesa admitted that there has to be a precise first position and second position. [00:20:04] Speaker 03: Where did they make that admission? [00:20:07] Speaker 03: I didn't see it. [00:20:09] Speaker 03: I see them on many occasions suggesting what they think the first position might be or the second position might be, but I don't see them admitting that it has to be a specific concrete position. [00:20:19] Speaker 01: Well, I agree with that, Your Honor, and I may have misunderstood Judge Post's question. [00:20:26] Speaker 01: Our point was that they [00:20:27] Speaker 01: They did not make the argument they're making now at claim construction. [00:20:32] Speaker 01: Again, their argument at claim construction was that it could be any of these different positions. [00:20:37] Speaker 01: And I think now on appeal, their argument is it's in this acquired position or the transport positions that those are the first and second positions. [00:20:45] Speaker 01: Their expert never said that. [00:20:48] Speaker 01: effectively said it could be anywhere in the printer in the feed cycle. [00:20:53] Speaker 01: So perhaps that would include that. [00:20:54] Speaker 01: But they never made the specific argument they're making now about what the first position is and what the second position is until on appeal. [00:21:02] Speaker 01: And at that point, they argued that it's not clear exactly what they are, but that it's this acquired position and this transport position. [00:21:13] Speaker 03: Do you want to cover any of the other issues? [00:21:15] Speaker 01: Well, yes, I do think, Your Honor, that one other point on the 269 in particular, if you look at the prosecution history, the prosecution history is further evidence of why this term is indefinite. [00:21:29] Speaker 01: It talks about, and this is at [00:21:32] Speaker 01: It's very brief, but it talks about how there were multiple conversations with the examiner, multiple telephone conversations with the examiner and the applicant, where the applicant was trying to figure out how to characterize their invention and how to characterize this term of not during the feed cycle or the timing of the feed cycle or something like that. [00:21:55] Speaker 01: And then we don't have any record of those conversations or [00:22:00] Speaker 01: what was discussed or anything in the written record, all we know is that eventually this term was suggested by the examiner. [00:22:08] Speaker 01: But again, it's not used anywhere else in the specification. [00:22:11] Speaker 01: It's not used in the 133 patent that's incorporated or anything like that. [00:22:14] Speaker 01: So we would suggest that too. [00:22:17] Speaker 01: But I guess if it's okay, I would like to address a couple of the points the council made. [00:22:23] Speaker 01: One, just on the use mechanism, and just very briefly, there is no evidence in the record that a use mechanism would be known as structured to one of ordinary skill in the art. [00:22:34] Speaker 01: There's none. [00:22:35] Speaker 01: There's nothing in the specification. [00:22:38] Speaker 01: The only evidence they have extrinsic to that is this counting mechanism that counters would be well known. [00:22:46] Speaker 01: But as Judge Wilson pointed out below, that's not the term, it's used mechanism. [00:22:52] Speaker 01: The Greenberg case, which counsel cited, [00:22:57] Speaker 01: That case is good for us. [00:22:58] Speaker 01: I mean, the term in that case was detent mechanism. [00:23:03] Speaker 01: Detent is a word for structure. [00:23:05] Speaker 01: One of ordinary skill in the arc would understand that my understanding is that it's an actual device that holds two things relative to each other in place, so you put force on one and then it releases it. [00:23:15] Speaker 01: It also mentioned other terms like that, like a filter or a brake, so a braking mechanism. [00:23:20] Speaker 01: Something like that would be known to one of ordinary skill in the arc. [00:23:23] Speaker 01: Use mechanism is not that term. [00:23:25] Speaker 01: There's no evidence, there's no dictionary definition for use mechanism or for use standing alone that would somehow connect structure to one of ordinary skill and the art. [00:23:36] Speaker 01: As far as the corresponding structure is concerned, I'm sorry. [00:23:40] Speaker 02: Would you say if the use mechanism connoted structure, there wouldn't be a need for the recitation of function because the structure itself would [00:23:50] Speaker 01: That's correct, Your Honor. [00:23:52] Speaker 01: The only way it could be defined is by the function that's laid out in the claim, which is what places it within 112.6. [00:23:59] Speaker 01: As far as the corresponding structure itself is concerned, the only structure in the specification corresponding to this function is the controller with database management system that can track the ORCs in the way that's described in the claim. [00:24:16] Speaker 01: That's the only thing that's linked to it. [00:24:18] Speaker 01: The counter, there's a life counter that's mentioned once, but it's only mentioned in the context of the controller with database management system. [00:24:27] Speaker 01: And then just briefly, Your Honors, on the display term in the 314 patent, [00:24:35] Speaker 01: The bottom line is, I think for us, one, their construction is inconsistent with the claim language and the specification, and two, they've effectively admitted that a display requires hardware in the companion Xerox case. [00:24:51] Speaker 01: proposed construction for display was a hardware device. [00:24:55] Speaker 01: I believe it was a monitor. [00:24:58] Speaker 01: But I think if you just look at the specification, I'm sorry, the claim language, and really that's the key, the claim language itself [00:25:06] Speaker 01: requires, it mentions these visual representations that one has to, the user has to be able to selectively associate these visual representations. [00:25:14] Speaker 01: As Judge Wolfson concluded, there is no way that you can, that a user can do that without the physical display. [00:25:21] Speaker 01: And so, regardless of the spec, the claims require physical display, but then also if you look at the claim language in the specification, [00:25:31] Speaker 01: The specification consistently distinguishes between the software desktop and the hardware display, and consistently talks about the hardware desktop, the software GUI, being displayed on the display. [00:25:45] Speaker 01: And that's not just in the specification of the language. [00:25:49] Speaker 01: You can look at appendix 125, column 13, 1 through 5. [00:25:53] Speaker 01: It's also figure 1A, which is at appendix 111. [00:25:57] Speaker 01: And then appendix 121, column 6, 18 through 26. [00:26:02] Speaker 01: So I believe I'm out of time, so unless there are any questions, I will take a seat. [00:26:12] Speaker 00: There was a great number of finding of facts that was made by the district court. [00:26:18] Speaker 00: We had three of the most acclaimed experts in the country that put in declarations, and the judge disagreed with those experts. [00:26:28] Speaker 00: not his role to be candid. [00:26:31] Speaker 00: When I walked into the building here today, it's the first time I've been in the Eastern District here. [00:26:34] Speaker 00: There's a glass wall up there. [00:26:36] Speaker 00: It has a Sixth Amendment print on it. [00:26:38] Speaker 00: And the James Madison quote about the importance of juries. [00:26:41] Speaker 00: And we have a jury system for a reason. [00:26:44] Speaker 00: Juries are supposed to find issues of fact. [00:26:47] Speaker 00: This case is the poster child for not having the jury find those issues of fact. [00:26:59] Speaker 00: If you look at the record below, look at the appellate record, you can see that there are every issue that the judge cited were contradictory issues of fact, based on the request documents, the testimony of their engineers, and our own experts. [00:27:15] Speaker 00: So I think at this point, we would just like to say that this case should be returned back to the court, and so the jury can decide these issues of fact. [00:27:23] Speaker 03: And counsel, that was not a tremendously helpful rebuttal. [00:27:26] Speaker 03: I would like you to turn to the issue of indefiniteness, please, because I'm not sure that Judge Prost is incorrect. [00:27:34] Speaker 03: I think that first position and second position might be incredibly broad and they might be definite, but I don't think you made the argument [00:27:41] Speaker 03: that I was discussing with opposing counsel. [00:27:44] Speaker 03: I think you made a lot of different arguments. [00:27:45] Speaker 03: In fact, I think they were playing a game of whack-a-mole with your arguments because they were so all over the place, but I don't think you made this argument, which to me seems like a very good one, which is the first position is just any position other than the supply sheet stack. [00:27:59] Speaker 03: The second position is any position other than the supply sheet stack or the first position. [00:28:03] Speaker 03: Full stop. [00:28:04] Speaker 03: Incredibly broad claim, but I don't see that you made that argument. [00:28:07] Speaker 03: I see that throughout [00:28:09] Speaker 03: your case, you were saying, well, the first position is this, or the second position is this, and you were always wedding yourself to a defined and specific first position and second position that you wanted people to adopt. [00:28:23] Speaker 03: Am I wrong? [00:28:23] Speaker 03: Did you make somewhere the argument that Judge Laurie started to ask about and that I asked about? [00:28:30] Speaker 00: Yeah, we did. [00:28:31] Speaker 00: And if you look at the extra decoration that counselors read. [00:28:34] Speaker 03: Where? [00:28:34] Speaker 03: You should tell me where. [00:28:35] Speaker 03: What page? [00:28:36] Speaker 00: I don't have it on top of my head, Your Honor. [00:28:38] Speaker 00: It is the one that counselors just read to you. [00:28:41] Speaker 00: Dr. McCarthy talked about it could be different places. [00:28:45] Speaker 00: It could be a first or second position, Your Honor is correct. [00:28:47] Speaker 00: That is exactly the position that we have. [00:28:50] Speaker 03: So I'm now on, why don't you get your appendix? [00:28:52] Speaker 03: I'm on Dr. McCarthy's declaration. [00:28:55] Speaker 03: It's at page 12, 415. [00:28:57] Speaker 03: Tell me where he said this. [00:28:58] Speaker 00: Well, it's not where he says that it's that general because it is a Jepson claim. [00:29:04] Speaker 00: is in the prior art. [00:29:06] Speaker 00: This is conventional knowledge. [00:29:09] Speaker 00: What Dr. McCarthy says is that it can be different locations. [00:29:14] Speaker 00: He does give specific locations as examples. [00:29:17] Speaker 00: He doesn't say what Your Honor just said generally, but he did say it could be here or there, it could be here or there. [00:29:22] Speaker 00: It's just first and second location. [00:29:23] Speaker 00: He gave examples of where that would be. [00:29:28] Speaker 03: And did you make this argument to the Court? [00:29:31] Speaker 00: I believe we did, Your Honor. [00:29:32] Speaker 04: Did you make it in blue? [00:29:33] Speaker 04: Did you cite that testimony in blue and make that argument in blue? [00:29:36] Speaker 04: I realize there's very little, there's so many issues in this case that some of them... I don't recall if we made it in blue or not, Your Honor. [00:29:46] Speaker 03: All right, I thank both counsel. [00:29:48] Speaker 03: This case is taken under submission. [00:29:50] Speaker 00: Thank you, Your Honor.