[00:00:00] Speaker 02:
Our next case for argument is 21-2174, Pop Top versus Rakuten.

[00:00:08] Speaker 02:
Counsel, how do I say your last name?

[00:00:10] Speaker 01:
Warson.

[00:00:11] Speaker 02:
Mr. Warson, please proceed.

[00:00:13] Speaker 01:
Good morning, Your Honors.

[00:00:14] Speaker 01:
Matt Warson for Pop Top Corp.

[00:00:17] Speaker 01:
This court held in the 02 micro decision that a district court must resolve a dispute regarding the technical scope of a claim term.

[00:00:29] Speaker 01:
More so in the Markman case and the precedent after that case, this court has held many times that claim construction must proceed an infringement analysis.

[00:00:46] Speaker 01:
That's the error that PopTop has appealed to this court, and that's the basis on which PopTop requests a reversal.

[00:00:55] Speaker 01:
the parties presented to the district court a definite disagreement over the scope of the claim term code for invoking a highlighting service.

[00:01:07] Speaker 01:
Poptop, citing the intrinsic record, argued in its opposition motion to summary judgment in a section entitled Claim Construction, Poptop argued for a broad reading of that term and encompassing

[00:01:24] Speaker 01:
code that leads to highlighting functionality.

[00:01:28] Speaker 04:
What does that mean?

[00:01:29] Speaker 04:
It means it invokes.

[00:01:32] Speaker 04:
What does it mean?

[00:01:32] Speaker 04:
What do you mean by leads to highlighting?

[00:01:36] Speaker 01:
Your Honor, if I could just address that question with respect to the claim language itself, which defines the code for invoking as a forward-looking process.

[00:01:53] Speaker 01:
And so the code leads to the highlighting functionality.

[00:01:59] Speaker 01:
And I'm saying that with basis in the claim language itself.

[00:02:03] Speaker 01:
On page 25 of the appendix, column 8 of the 623 patent, it's a method claim.

[00:02:14] Speaker 01:
There's one claim in this patent.

[00:02:16] Speaker 01:
It's a method.

[00:02:17] Speaker 01:
In step 2 of the method,

[00:02:21] Speaker 01:
the claim language defines this code for invoking.

[00:02:25] Speaker 04:
And it's a two.

[00:02:26] Speaker 04:
We have the claim.

[00:02:27] Speaker 04:
We're familiar.

[00:02:28] Speaker 04:
We've read it.

[00:02:28] Speaker 04:
OK.

[00:02:29] Speaker 04:
So what language are you relying on?

[00:02:31] Speaker 04:
The wherein language?

[00:02:33] Speaker 04:
What language are you referring to?

[00:02:36] Speaker 01:
Yes.

[00:02:36] Speaker 01:
So on line 25, wherein the internet document includes code for invoking a highlighting service to operate with the internet document.

[00:02:47] Speaker 01:
Skipping down then to line 30,

[00:02:50] Speaker 01:
code causing a user interface object for invoking the highlighting service to be displayed by the client web browser in connection with the internet document.

[00:03:05] Speaker 04:
So the accused device, they're asserting, and they have very extensive testimony there in fact, that the internet document doesn't have any code for highlighting.

[00:03:19] Speaker 01:
Yes, that's correct.

[00:03:19] Speaker 04:
And so how do you respond to that?

[00:03:21] Speaker 04:
I mean, why does your claim construction matter?

[00:03:24] Speaker 01:
It matters, Your Honor, because the claim should be construed broadly based on the intrinsic record, based on this claim construction.

[00:03:36] Speaker 01:
This claim language supports

[00:03:40] Speaker 01:
that the code is not executable code that delivers highlighting functionality.

[00:03:46] Speaker 01:
And that is what the extrinsic evidence that Kobo presented goes to.

[00:03:51] Speaker 01:
They presented Kobo's reading of this claim in a narrow way.

[00:03:56] Speaker 01:
And they submitted extrinsic evidence that would limit and require this claim to serve the internet document with executable code with highlighting functionality.

[00:04:10] Speaker 01:
And if I can refer specifically to that extrinsic evidence that was submitted and adopted by the district court without construing the claim.

[00:04:23] Speaker 04:
Yes?

[00:04:27] Speaker 04:
Your client had never asked, well not never asked, but didn't ask the court to construe any claim terms in this case, right?

[00:04:35] Speaker 01:
No, with all due respect, that's wrong.

[00:04:39] Speaker 01:
In the opposition brief to the motion for summary judgment, there is a section in the brief, and it's discussed throughout, claim construction.

[00:04:51] Speaker 01:
Page 641 and 642 of the appendix

[00:04:55] Speaker 01:
is the section entitled Claim Construction.

[00:04:59] Speaker 01:
Not only that, in the introduction, Pop Top goes into detail and specifically argues for this broad reading of this claim term, as well as in 644 of the appendix.

[00:05:15] Speaker 01:
So it's incorrect.

[00:05:18] Speaker 01:
Pop Top presented to the district court a broad construction of the term

[00:05:25] Speaker 01:
that Poptop submits is supported by the intrinsic record.

[00:05:30] Speaker 01:
Now, as far as claim construction being immaterial, as Cobo argues, it's not as if Cobo took that position in front of the district court.

[00:05:43] Speaker 01:
Instead, what happened is Cobo put in this extrinsic evidence, which is contradicted by the intrinsic evidence that

[00:05:53] Speaker 01:
pop-top went forward before the district court on.

[00:05:57] Speaker 01:
The district court ignored the claim construction issue, adopted extrinsic evidence that cannot be squared with the intrinsic record.

[00:06:06] Speaker 01:
And it's our submission that that's an error under 02 micro.

[00:06:16] Speaker 03:
Well, you're talking about whether the claim should be construed.

[00:06:22] Speaker 03:
always when there's a dispute in the infringement issue.

[00:06:27] Speaker 01:
Yes, Your Honor.

[00:06:28] Speaker 03:
A particular term, even though that isn't focused in the summary judgment record.

[00:06:37] Speaker 01:
Under 02 micro, and we would submit more broadly Markman itself and its prodigy, an infringement analysis must be preceded by a claim construction.

[00:06:51] Speaker 01:
And so here we have a dispute over the scope of the claim term code for invoking.

[00:06:59] Speaker 01:
Poptop argued that it should have a broad reading and should reach any code that leads to the highlighting.

[00:07:09] Speaker 01:
Kobo, for its part, argued that the code must be executable code.

[00:07:16] Speaker 01:
with highlighting functionality.

[00:07:18] Speaker 04:
I mean, Cobo seems to have presented a lot of evidence in terms of expert testimony.

[00:07:23] Speaker 04:
I mean, I guess some unrebutted declarations.

[00:07:26] Speaker 04:
We don't have any code regarding highlighting, including any code that invokes the highlighting.

[00:07:31] Speaker 04:
When your client identified a particular code file that it thought was the

[00:07:39] Speaker 04:
source the code that would meet this claim element.

[00:07:43] Speaker 04:
They even did tests to show that when they removed those, highlighting could still occur.

[00:07:47] Speaker 04:
I mean, what is your response to that?

[00:07:49] Speaker 04:
What is your evidence that this claim construction matters?

[00:07:53] Speaker 01:
Our evidence, Your Honor, is that the claim talks about a user interface object.

[00:08:01] Speaker 01:
The code for involvement.

[00:08:03] Speaker 04:
Do you have particular documents you're referring to or expert testimony or anything that you're referring to for why it is that the accused device meets this limitation?

[00:08:12] Speaker 01:
Yes, Your Honor.

[00:08:13] Speaker 01:
So a voluntary claim chart as well as infringement contentions, two different demonstrations with the accused application running on a device, and a user interaction with the served e-book

[00:08:29] Speaker 01:
triggering the highlighting service.

[00:08:32] Speaker 01:
And so we would rely and we did rely in the district court on this user interface object, which the patent refers to as a highlight button.

[00:08:44] Speaker 01:
And that's exactly what the Cobo accused device has.

[00:08:49] Speaker 01:
Moreover, to oppose the summary judgment, we relied on Cobo's own evidence, which was submitted based on Cobo's narrow reading of this patent claim.

[00:09:03] Speaker 01:
under the correct construction of the claim.

[00:09:06] Speaker 01:
It's PopTop's submission that Mr. Hunter's testimony supports and is consistent with PopTop's voluntary claim chart and infringement contentions.

[00:09:19] Speaker 01:
And so the short of it is that the COBOL e-book is served with data that facilitates a command based on user interaction with the e-book.

[00:09:33] Speaker 01:
More specifically, with respect to Mr. Hunter's testimony, at appendix 177 and 78, the court will find testimony that the user interacts with the e-book, which sends a command to the content viewer.

[00:09:52] Speaker 01:
The code for invoking its art submission leads to the highlighting functionality.

[00:10:00] Speaker 01:
The highlighting functionality is not required

[00:10:03] Speaker 01:
to be in the served internet document.

[00:10:07] Speaker 01:
Then back to Mr. Hunter's testimony, at appendix 179, paragraph 24, one of these commands that's based on user interaction with the served e-book is a highlight command.

[00:10:22] Speaker 01:
And so what we did rely on as evidence, and it's not just attorney argument, we have the claim chart and the infringement contentions

[00:10:32] Speaker 01:
which contained public information, yes, but Kobo's accused product and a user interacting with the served e-book, manipulating the e-book precisely as claimed in claim one.

[00:10:49] Speaker 01:
The third step of claim one, after the e-book has been served with the code for invoking the highlighting service,

[00:10:58] Speaker 01:
The claim reads, responsive to a user selecting the user interface object in the client web browser, the client web browser communicates a request, a command, to the highlighting service server to invoke the highlighting service.

[00:11:18] Speaker 01:
Step three of this method claim starts to get to the actual functionality of the highlighting service.

[00:11:26] Speaker 01:
The court will note that the functionality is not present in step two.

[00:11:33] Speaker 01:
It's Poptop's argument that this claim should be given a broader reading.

[00:11:40] Speaker 01:
And yes, it's true that the broader reading would also capture the embodiment that Kobo is arguing for.

[00:11:49] Speaker 01:
You could serve the internet document with executable code.

[00:11:53] Speaker 01:
Poptop's point is that that is not required by this claim language.

[00:11:59] Speaker 01:
The point is that the district court, according to this court's precedent, 02 micro, when confronted with a dispute such as this one that goes to the scope of this claim, it's improper and it's reversible error to skip claim construction.

[00:12:17] Speaker 01:
And on that basis, we're asking for reversal.

[00:12:21] Speaker 03:
So you're telling us.

[00:12:23] Speaker 03:
The court should spontaneously do this in reviewing the motion for summary judgment, even though it's not spelled out in the detail that you're now presenting.

[00:12:36] Speaker 01:
Your Honor, I respectfully disagree.

[00:12:38] Speaker 01:
We did contest this.

[00:12:41] Speaker 01:
And I'll cite the appendix again.

[00:12:43] Speaker 01:
In our opposition brief, there's an entire section on claim construction.

[00:12:49] Speaker 01:
And that will be found at pages 641 and 642.

[00:12:53] Speaker 01:
This issue was presented in these same terms.

[00:12:58] Speaker 01:
Hoptop relied on the intrinsic record for a broad construction of code for invoking a highlighting service.

[00:13:07] Speaker 01:
And it was air.

[00:13:10] Speaker 01:
And we are asking for reversal.

[00:13:14] Speaker 01:
It's not a spontaneous obligation of the district court judge.

[00:13:20] Speaker 01:
It has to be squarely presented.

[00:13:24] Speaker 01:
The parties have to dispute the technical scope of the claim term.

[00:13:29] Speaker 01:
And our argument before your honors is that the dispute was squarely presented.

[00:13:36] Speaker 02:
Well, perhaps the problem the district court had

[00:13:39] Speaker 02:
was on 643, when you explain the claim construction dispute, you say, in sum, Cobo has asked the court to add four requirements to claim one.

[00:13:50] Speaker 02:
First, the served internet document must include all code necessary to highlight the served internet document.

[00:13:57] Speaker 02:
And then perhaps the court was not of the belief there continued to be a dispute, because in the reply brief that your opponent served at page 521,

[00:14:07] Speaker 02:
It completely says it agrees.

[00:14:09] Speaker 02:
It doesn't need to contain all the quote.

[00:14:12] Speaker 02:
I'm quoting from page 521.

[00:14:14] Speaker 02:
It needs to contain all code necessary to highlight the internet document.

[00:14:19] Speaker 02:
But rather, COBO has shown that the e-books or the COBO Act do not contain any code at all that invokes the highlighting service.

[00:14:26] Speaker 02:
Perhaps that's why the district court didn't think there was a dispute.

[00:14:29] Speaker 02:
You framed the dispute as your problem was they were saying it had to have all the code.

[00:14:34] Speaker 02:
And they responded to the district court saying, we agree it doesn't have to have all the code.

[00:14:39] Speaker 02:
We don't dispute their claim construction argument at all.

[00:14:42] Speaker 02:
We don't have any code.

[00:14:44] Speaker 01:
Your Honor, that was not Poptop's position.

[00:14:48] Speaker 02:
I read you from your briefing.

[00:14:50] Speaker 02:
That's the page you told me to look at for your position.

[00:14:53] Speaker 01:
That's a reflection of the position that Kobo took, which is that the highlighting functionality must be in the e-book that's served.

[00:15:04] Speaker 01:
And for that position, we would cite 287, the summary judgment brief, 184, Mr. Hunter's testimony, and 237, the technical expert's testimony.

[00:15:21] Speaker 01:
All of those three sites reference the functionality needing to be served with the e-book.

[00:15:29] Speaker 01:
and that the e-book doesn't contain highlighting functionality.

[00:15:33] Speaker 01:
And so the passage from Poptop's brief that was just read by the court references Kobo's position that then and there, all code must be necessary to highlight the document.

[00:15:49] Speaker 01:
Those are the terms that Kobo was using in their summary judgment motion.

[00:15:53] Speaker 01:
So but it points up the dispute that the parties had.

[00:15:57] Speaker 01:
And Poptop's brief, including in the claim.

[00:16:00] Speaker 02:
You've exceeded your time and all your rebuttal time.

[00:16:02] Speaker 02:
I'll restore some rebuttal time, but we need to move on.

[00:16:04] Speaker 01:
OK.

[00:16:05] Speaker 02:
Mr. Raskin?

[00:16:06] Speaker 02:
Mr. Raskin?

[00:16:08] Speaker 02:
Sorry.

[00:16:08] Speaker 02:
We need to pluralize.

[00:16:09] Speaker 00:
Good morning, Your Honors.

[00:16:12] Speaker 00:
May it please the court.

[00:16:14] Speaker 00:
I will jump straight to the claim construction issue, because I believe, Your Honors, have hit the nail on the head.

[00:16:23] Speaker 00:
There's no dispute at all regarding the meaning of the code for invoking limitation.

[00:16:31] Speaker 00:
Never in this case, whether in our briefs to the district court, at the hearing before the district court, in our briefs before this court, have we ever taken a position that in order to infringe the claim, the alleged internet document, the Kobo e-books, need to include all of the code relating to highlighting.

[00:16:52] Speaker 00:
We've never taken that position.

[00:16:54] Speaker 00:
The position that we've consistently taken is that however that term is construed, the Kobo e-books contain no code at all.

[00:17:02] Speaker 04:
So no code for invoking or calling a function for highlighting.

[00:17:08] Speaker 04:
What about code for having a user interface where you can push a highlighting button or something like that?

[00:17:13] Speaker 00:
Yes, there's no code relating to that either.

[00:17:16] Speaker 00:
The evidence in the record, which is an extensive declaration from both Rakuten Kobo's CTO, Mr. Hunter,

[00:17:23] Speaker 00:
and an expert, Dr. Nathaniel Polish, that evidence demonstrates that there's no code on the e-book whatsoever relating to highlighting, at all, relating to highlighting, including for invoking.

[00:17:36] Speaker 00:
Now, with regard to these commands that counsel refers to,

[00:17:41] Speaker 00:
And today, counsel referred to paragraph 24 of Mr. Hunter's declaration, which is at appendix 179.

[00:17:54] Speaker 00:
The code that's referenced in paragraph 24 is code that is on the app, not on the e-book.

[00:18:04] Speaker 00:
So paragraph 24 says, the show highlight menu function sends the highlight highlight command to the content viewer.

[00:18:12] Speaker 00:
And then there is a reference to source code.

[00:18:16] Speaker 00:
But if you turn to appendix.

[00:18:19] Speaker 02:
So you're reading stuff that in my thing is marked confidential, I believe.

[00:18:22] Speaker 02:
Is that appropriate?

[00:18:23] Speaker 02:
I'm just wondering whose confidential information this is.

[00:18:26] Speaker 00:
Yeah, this is our confidential information.

[00:18:27] Speaker 02:
OK, then you can read whatever you want.

[00:18:28] Speaker 00:
Then we can read it.

[00:18:30] Speaker 00:
And if you turn to paragraph 15,

[00:18:34] Speaker 00:
of mister hunters declaration which is on appendix one seventy five

[00:18:38] Speaker 00:
He, and this is the paragraph that introduces the subsequent paragraphs that refer to code.

[00:18:46] Speaker 00:
He says that, in each of the above cases, when a user selects text to be highlighted and activates the highlight button, the Kobo app, not the bug, is programmed to highlight the selected text.

[00:18:58] Speaker 00:
As I explain below, with reference to the source code for the iOS version of the Kobo app,

[00:19:04] Speaker 00:
The Kobo app does this by executing functionality that is located in the Kobo app itself, which is stored on the user's local device.

[00:19:12] Speaker 00:
So when you get to paragraph 24, and there are references to certain code that leads to certain commands, that is code on the app, not on the e-book.

[00:19:25] Speaker 04:
Is there something?

[00:19:26] Speaker 03:
Oh, go ahead, please.

[00:19:28] Speaker 03:
I was going to ask, how this theory helps your case?

[00:19:32] Speaker 03:
It helps the position.

[00:19:33] Speaker 03:
that this clause didn't have to be construed, but it's a direct admission of infringement as that clause is applied.

[00:19:45] Speaker 00:
Well, that's Poptop's position.

[00:19:47] Speaker 03:
Well, it's a problem after you press this position.

[00:19:52] Speaker 00:
Oh no, because the code that I'm referring to is on the app.

[00:19:56] Speaker 00:
So the claim requires that an internet document, which in this case is the ebook.

[00:20:02] Speaker 00:
So there's an ebook, and then there's the app on which the ebook runs.

[00:20:06] Speaker 00:
And according to the claim, the internet document, which PopTop alleges is the ebook, must include code for invoking highlighting.

[00:20:15] Speaker 00:
But the code that I just referenced is not on the ebook.

[00:20:19] Speaker 00:
The code that I referenced is on the app.

[00:20:21] Speaker 00:
And that's been our position all along, that all of the code that's relating to highlighting is stored on the device itself.

[00:20:29] Speaker 00:
There's nothing on the e-book that's delivered to the device.

[00:20:33] Speaker 00:
There's no code on the e-book that relates to highlighting.

[00:20:37] Speaker 00:
There's no code that invokes highlighting.

[00:20:39] Speaker 00:
There's no code regarding highlighting at all.

[00:20:42] Speaker 00:
And Judge Stoll.

[00:20:43] Speaker 02:
There has to be something.

[00:20:44] Speaker 02:
Doesn't there have to be something that invokes highlighting?

[00:20:47] Speaker 02:
How else would the highlighting occur?

[00:20:48] Speaker 02:
It doesn't occur a suespante, right?

[00:20:51] Speaker 00:
Well, there's extensive code, but it's on the device.

[00:20:56] Speaker 00:
The code is stored on the device so that a book can be purchased from either the Kobo website, it can be purchased from several different places, but it's on the device.

[00:21:07] Speaker 00:
And the reason it's on the device is so users can, for example, use the book when they're on a beach.

[00:21:13] Speaker 00:
And then there's evidence.

[00:21:13] Speaker 02:
So they're able to highlight even when they're not hooked up to the internet.

[00:21:16] Speaker 00:
Exactly, Your Honor.

[00:21:18] Speaker 00:
And this goes to other limitations of the claim that we argued to the district court on which the district court didn't rely on granting summary judgment.

[00:21:25] Speaker 00:
But there's many other reasons why we don't infringe here.

[00:21:28] Speaker 00:
For example, we do not have our highlighting service alleged on a highlighting service server.

[00:21:36] Speaker 00:
It's on the device itself.

[00:21:38] Speaker 00:
It's on the app itself.

[00:21:41] Speaker 00:
and you can search through all of pop-tops briefs and I was going to say evidence but they don't have any evidence look through all of their briefs and they do not once cite to a single line of code on the ebook not once and that's because there is no code for invoking highlighting or code for highlighting but they have not identified any code at all on the ebook

[00:22:06] Speaker 00:
And for that reason alone, we believe summary judgment should be affirmed, because without pointing to any code, let alone code for invoking highlighting, they can't raise a genuine issue of fact as to whether there is code for invoking highlighting on the e-book.

[00:22:23] Speaker 00:
Are there any other questions on this claim construction issue?

[00:22:27] Speaker 00:
If not, I'll just turn briefly to the commands issue.

[00:22:33] Speaker 00:
to paragraph 24 of Mr. Hunter's declaration, first and foremost, the district court refused to consider that evidence because it was not in Pop Top's infringement contentions.

[00:22:46] Speaker 00:
And I hate to have to rely on what in my mind seems like a technicality, but it was not in their infringement contentions.

[00:22:55] Speaker 00:
uh... the district judge or sorry magistrate district magistrate judge uh... donahue when she uh... consider that evidence and saw that it was in the infringement contention she looked to see whether uh... pop top had made a showing of good cause for raising it in their brief for the first time and actually it was at the argument for the first time was not even in their briefs on summary judgment uh... raised it for the first time at the hearing

[00:23:21] Speaker 00:
And she found that because it was not in their infringement contentions, they couldn't rely on that.

[00:23:25] Speaker 00:
Now, that is an abuse of discretion standard.

[00:23:29] Speaker 00:
And we respectfully

[00:23:33] Speaker 04:
slaying, highlighting control.

[00:23:36] Speaker 00:
Yes.

[00:23:36] Speaker 00:
And so we believe that they have not made any argument or showing that the district court abused its discretion in refusing to consider that.

[00:23:46] Speaker 00:
Now, for the first time.

[00:23:47] Speaker 04:
But even if they did, you've got evidence that you've presented to us to show this is unrebutted testimony that

[00:23:55] Speaker 04:
This control is not on the e-book.

[00:23:58] Speaker 04:
Instead, it's on the app.

[00:24:00] Speaker 00:
Exactly.

[00:24:01] Speaker 00:
That's why I hesitate to start with the infringement contentions argument because I don't want to minimize the fact that the commands, the so-called commands that they point to, are not even on the book itself.

[00:24:13] Speaker 00:
They're on the app.

[00:24:14] Speaker 00:
And that is, just for the record, in paragraphs 15, 20, and 23, and 24 of the Hunter Declaration, which are appendix pages 175, 177, and 179.

[00:24:34] Speaker 00:
For these reasons, Your Honor, I'll just wrap up.

[00:24:38] Speaker 00:
We believe that the district court's grant of summary judgment should be affirmed for the simple and undisputed reason that there has been not a single line of source code cited by PopTop throughout this entire case on the e-book.

[00:24:54] Speaker 00:
Let alone code for invoking highlighting and for that simple end on the other hand There's extensive evidence in the record that there is no code on the ebook relating to highlighting and that all such code is on the app Let there are any questions Thank you You have some rebuttal time

[00:25:24] Speaker 01:
Matt Warson for Poptop.

[00:25:25] Speaker 01:
I'd just like to make two points.

[00:25:27] Speaker 01:
The first one is definitional, and it points out the problem that we have and the error we're pointing out, and that is

[00:25:37] Speaker 01:
What is the code?

[00:25:38] Speaker 01:
What defines code for invoking a highlighting service?

[00:25:43] Speaker 01:
That legal question has never been answered.

[00:25:46] Speaker 01:
And so we believe that that's a broad construction.

[00:25:51] Speaker 01:
And this goes to what Chief Judge Moore pointed out.

[00:25:55] Speaker 01:
And that is that commands don't just issue from a vacuum.

[00:26:00] Speaker 01:
The e-book is served.

[00:26:02] Speaker 02:
You said you had an obligation to point to what the code was for infringement purposes.

[00:26:07] Speaker 02:
So what is the code?

[00:26:09] Speaker 02:
What is the code that's in the internet document that you claim invokes the Highlighting Service?

[00:26:16] Speaker 01:
The code, Your Honor, in the infringement contentions is what leads to the dispute.

[00:26:22] Speaker 02:
What is the code, the specific code?

[00:26:24] Speaker 02:
Tell me what it is.

[00:26:25] Speaker 02:
Where is it?

[00:26:26] Speaker 02:
Where can I find it?

[00:26:27] Speaker 02:
Where have you alleged it?

[00:26:29] Speaker 01:
In the public information, when the user interacts with the e-book, it triggers a display of the highlighting tools.

[00:26:37] Speaker 01:
That evidence is confirmed by the Hunter testimony.

[00:26:41] Speaker 01:
And we point to page 179 of the appendix.

[00:26:46] Speaker 04:
But that was just explained in reading that.

[00:26:49] Speaker 04:
In total, it's very clear that what that's referring to is not code that's on the e-book, but rather code that's on the app.

[00:26:56] Speaker 04:
So what else do you have besides A179?

[00:27:00] Speaker 01:
Well, 177 and 178, Mr. Hunter testifies that based on user interaction, that highlight command is issued.

[00:27:10] Speaker 04:
And so this goes to the point that... But even if it's the user interaction, it's with the e-book running on the app.

[00:27:17] Speaker 01:
But the e-book is served to the app with something that leads to the highlighting.

[00:27:25] Speaker 01:
And for code that- What is that?

[00:27:27] Speaker 01:
It's code that- No, no.

[00:27:28] Speaker 04:
I mean, where in the record will I see what you've identified that as?

[00:27:33] Speaker 01:
A combination of Mr. Hunter's testimony, paragraphs 20 and 21, user interaction, paragraph 24, issue that highlight command to the content viewer.

[00:27:47] Speaker 01:
That together is code for invoking the highlighting service.

[00:27:53] Speaker 01:
Thank you, Your Honors.

[00:27:55] Speaker 02:
OK.

[00:27:55] Speaker 02:
Thank both counsels.

[00:27:55] Speaker 02:
This case is taken under submission.

[00:27:57] Speaker 02:
We're going to have a brief recess while you go set up the video argument.