[00:00:00] Speaker 03: case for argument this morning is 21-1998 Soundview Innovations versus Hulu. [00:00:07] Speaker 03: I think we're ready Mr. Kellman whenever you are. [00:00:13] Speaker 01: Good morning. [00:00:15] Speaker 01: Good morning your honors may please the court. [00:00:18] Speaker 01: The district court committed two fundamental errors of claim construction. [00:00:23] Speaker 01: First the court found prosecution disclaimer based on [00:00:29] Speaker 01: not on the concurrency distinction that the applicants literally underlined throughout their remarks, but rather on a same or single buffer distinction that the district court believed was necessary to overcome the priority. [00:00:47] Speaker 01: Second, while acknowledging that there was a live claim construction dispute over the meaning of the term buffer, [00:00:56] Speaker 01: The court declined to construe that term, that term buffer, and instead jumped directly to the infringement question, holding that anything that's called a cash, regardless of the actual definition of the claim term buffer, could not meet that claim definition. [00:01:18] Speaker 03: I don't want to jump you ahead of the game, but let me just go to the end of the story, and others can go back to the beginning, which is that assume hypothetically we were to disagree with you on the disclaimer point, but agree with you on the buffer cash point. [00:01:32] Speaker 03: I mean, it's a claim construction issue. [00:01:36] Speaker 03: I mean, what do we do with that? [00:01:39] Speaker 03: Do we send it back so that we say the court was wrong, at least as far as it went, and that it should start over and do [00:01:48] Speaker 03: a detailed claim construction on buffer to fix this. [00:01:53] Speaker 03: I mean, we don't go right to trial, even though it was some region, yeah, it was. [00:01:57] Speaker 01: Well, I think, so let me take both of those, those pieces here on. [00:02:01] Speaker 01: No, that's all right. [00:02:03] Speaker 01: The, if you, as you said, if you disagree [00:02:06] Speaker 01: with the first part, but you do find that something's wrong with the second part, with the second construction on buffer. [00:02:14] Speaker 01: I think this court can and should determine what the plain and ordinary meaning of buffer is. [00:02:21] Speaker 01: And we've offered that as temporary storage to send and receive data. [00:02:27] Speaker 01: And then send that back to the district court. [00:02:33] Speaker 01: not for further claim construction proceedings, but actually at that point we would go to trial on that issue. [00:02:39] Speaker 01: I would urge you to find with us on both of the claim construction issues, but there's no reason to remand for further proceedings on claim construction. [00:02:47] Speaker 01: That issue was joined at the district court. [00:02:50] Speaker 01: Both parties briefed the term buffer extensively through initial briefing on it and then supplemental briefing on that point as well. [00:03:00] Speaker 01: uh... the issue here is fully briefed in front of your honors and uh... there's uh... pumping it back, you know, or sending it back to district court to go further without any guidance as to what that construction uh... should be uh... is essentially a redundant exercise. [00:03:20] Speaker 01: Your honors have all of that in front of you right now. [00:03:24] Speaker 03: Well, I mean, she said, and if the problem is that she said that a cash can't be a buffer [00:03:30] Speaker 03: Right? [00:03:30] Speaker 01: I mean, that's the part. [00:03:32] Speaker 01: Well, the district court said that something called a cash, it didn't even look at what the accused product was. [00:03:37] Speaker 01: So something called a cash cannot be the claim term buffer. [00:03:42] Speaker 03: Couldn't there be a more nuanced view of that, even if we reject that as being overly broad? [00:03:49] Speaker 03: Isn't there a more nuanced construction that might iner if you look at the specification, that you look at the use of the words, [00:03:58] Speaker 03: further clarity, in other words, before we jump right to a trial, which is not a plain construction venue, but rather just a discernment. [00:04:07] Speaker 01: Right. [00:04:07] Speaker 01: So maybe I wasn't clear, and I apologize, Your Honor. [00:04:10] Speaker 01: The term buffer has a plain and ordinary meaning. [00:04:14] Speaker 01: We've laid that out in the specification. [00:04:16] Speaker 01: It's temporary storage, presenting and receiving data. [00:04:24] Speaker 01: That term, if construed, [00:04:28] Speaker 01: Uh, there is sufficient evidence construed that way, according to what we believe the plain or immunities, there's sufficient evidence in the record for us to go to trial on that construction. [00:04:38] Speaker 01: In other words, I'm asking this court to say that is the construction of the term buffer based on the intrinsic evidence and the extrinsic evidence that we've supplied. [00:04:48] Speaker 01: Uh, and then that gets remanded, that would get remanded with that construction to the district court. [00:04:56] Speaker 01: At that point, what's left for the district court to do is to go to trial on that issue with that actual construction. [00:05:03] Speaker 01: I get then to compare a trial, the accused product, which happens to have a thing called a cash, but acts exactly like the buffer if construed correctly. [00:05:14] Speaker 04: Was the other side's summary judgment submission at any stage on paper or otherwise? [00:05:20] Speaker 04: Did it include saying even under your [00:05:25] Speaker 04: view of what buffer means, the two particular caches at issue that you accuse of are not that, as a summary judgment matter. [00:05:37] Speaker 01: Even under the claim, well, there's this extra little argument that appears in the brief here that was part of a supplemental, it wasn't the main, there wasn't their claim construction argument, but it has to do with this concept of allocating. [00:05:53] Speaker 01: a buffer? [00:05:54] Speaker 01: I think that may be what your honor is referring to. [00:05:56] Speaker 04: No, actually. [00:05:56] Speaker 04: But that is an additional possible impediment to getting to trial that the district court hasn't ruled on. [00:06:04] Speaker 01: Right? [00:06:04] Speaker 01: Right. [00:06:05] Speaker 01: And I think your honors don't need to say go to trial. [00:06:09] Speaker 01: That's not what we're asking for. [00:06:10] Speaker 01: We're asking for a reversal of the de facto or really non-existent claim construction decision that the district court made. [00:06:20] Speaker 01: which essentially is a negative limitation, but not a negative limitation of it can't be this structural thing or this functional thing. [00:06:30] Speaker 01: It can't be that word. [00:06:33] Speaker 01: Instead, send back to the district court an actual definition of the term buffer. [00:06:39] Speaker 01: I can argue then at the district court whether or not the allocating was right or not right at that point and whether or not we should go to trial. [00:06:47] Speaker 01: I'm sorry if I jumped the gun a little bit onto [00:06:49] Speaker 01: on that. [00:06:50] Speaker 01: But to be clear, the record here is perfectly sufficient to determine what the definition of the term buffer is. [00:07:03] Speaker 01: As I said, temporary storage for data being sent or received. [00:07:07] Speaker 01: And that's perfectly joint. [00:07:08] Speaker 01: And that's all we would ask on that point. [00:07:11] Speaker 01: Now, obviously, I do want to talk. [00:07:13] Speaker 01: I don't want to go. [00:07:14] Speaker 03: I did jump the gun, too. [00:07:15] Speaker 03: So you can go back to disclaimer if you'd like. [00:07:19] Speaker 01: On that second point, on the buffer question, if in fact the court finds that there is [00:07:30] Speaker 01: that the definition of the term buffer is what we say it is. [00:07:34] Speaker 01: There is robust evidence, we cited it in our briefs, I can cite it again here, that the Q's product does in fact meet that limitation. [00:07:43] Speaker 03: Well, we are certainly not going to decide that here. [00:07:45] Speaker 01: Right. [00:07:46] Speaker 01: So all I'm saying is that there's no alternative rounds being offered for affirmance here that's been briefed. [00:07:53] Speaker 01: That's all I'm saying on that point. [00:07:57] Speaker 01: OK, so let me then, if Your Honor is OK, I can move back to the original, unless you want to continue to talk about the buffer. [00:08:04] Speaker 01: I think maybe importantly, identified the two errors. [00:08:09] Speaker 01: One is the buffer error that we were just talking about. [00:08:12] Speaker 01: One is the prosecution disclaimer. [00:08:17] Speaker 01: Inherent in the discussion we were just having is that reversal on either one of those grounds [00:08:24] Speaker 01: is sufficient to vacate the summary judgment award and send it back. [00:08:28] Speaker 01: I've already explained to you why on the buffer point that is the case with respect to the prosecution disclaimer, which we'll call sort of adding the same buffer limitation or the one buffer limitation. [00:08:41] Speaker 01: Below Hulu has conceded it's in the record. [00:08:45] Speaker 01: They conceded on summary judgment. [00:08:47] Speaker 01: It's at page appendix 3595 to 96, specifically paragraph 17, that there are in fact allocated buffers, their word, using it directly from the claim. [00:09:03] Speaker 01: And then therefore, if you don't have the same buffer requirement, we again, [00:09:07] Speaker 01: go back to the district court, this court can't affirm in that circumstance. [00:09:12] Speaker 04: So now why are we right on the issue of the... You might even seek summary judgment of infringement if that concession is what you say it is. [00:09:23] Speaker 01: I think we are entitled to that, Your Honor, but again, that's not a decision that we need make at this point. [00:09:31] Speaker 04: All we are asking... Right, but on the disclaimer, I guess, would you mind doing this [00:09:35] Speaker 04: Focus not on the paragraph with the underlining that you want to talk about, but the previous paragraph with the other underlining, the one that I guess this is... The abstract you're underlining? [00:09:51] Speaker 04: The abstract where you underlined, once one of its buffers is consumed, which I assume means emptied by... Is that right? [00:09:59] Speaker 04: The consumed means emptied out? [00:10:03] Speaker 01: Yes, I think so, Your Honor. [00:10:06] Speaker 04: by the associated media stream client. [00:10:09] Speaker 04: Why doesn't that communicate that what you were pointing out was that that buffer in the ring of buffers doesn't get refilled until it's done? [00:10:27] Speaker 04: That is, that you're focusing there on a single buffer because you're doing this in a context in which there's this kind of [00:10:36] Speaker 04: I don't know if the word round robin or something is, is, um, right. [00:10:41] Speaker 04: A gets emptied out, emptied out when A is done getting emptied out, B gets emptied out and that's C and D and E. And if that's what you have and A needs to be refilled by the time E is done. [00:10:52] Speaker 04: Right. [00:10:52] Speaker 04: That's the deadline. [00:10:53] Speaker 04: That's the deadline. [00:10:54] Speaker 04: Right. [00:10:55] Speaker 04: Isn't that. [00:10:55] Speaker 01: That is, that is. [00:10:58] Speaker 01: Yes, there is this concept of that ring being done. [00:11:02] Speaker 01: I don't know if your honor is suggesting this or not, but we would disagree that there's any suggestion in, uh, the, the money reference that the abstract of which is cited on appendix 44 11, uh, that there's any suggestion there at all, that there is a concurrent, uh, downloading, which is sending actually to the client. [00:11:27] Speaker 01: That's an odd word, right? [00:11:27] Speaker 01: Downloading to the client. [00:11:29] Speaker 04: and retrieving from another source that the money suggests that suppose suppose suppose that if I read the money, I came away with the really quite strong conviction that most reasonably read. [00:11:44] Speaker 04: It was talking about exactly that kind of concurrence across the entire ring of buffers, but not within a single buffer, not [00:11:54] Speaker 04: what I think you suggest that it was not saying we will do loading only during lulls in any activity throughout the ring. [00:12:04] Speaker 04: Then why wouldn't I read this underlining in the abstract to be communicating the very point that I think Judge Kronstadt inferred as being [00:12:17] Speaker 04: Conceded. [00:12:17] Speaker 01: I'm sorry. [00:12:18] Speaker 01: I didn't mean to speak over because I think that that assumes a, uh, the conclusion in some ways, uh, the, the case law tells us that we're looking for a clear and unmistakable disclaimer. [00:12:32] Speaker 01: So your honor is pointing me to something that the applicant said, right? [00:12:37] Speaker 04: In the sense of underlining and trying to understand exactly what, what a reasonable skilled artisan would understand that language to be communicating to the examiner. [00:12:47] Speaker 01: Correct, and we agree that that is, in fact, the task. [00:12:51] Speaker 01: And so focusing on that language, that language, first of all, doesn't say anything about the round robin that you suggested, or that, in fact, there would be this simultaneous, that particular underlying language. [00:13:08] Speaker 01: It just says that one of the buffers is consumed. [00:13:11] Speaker 01: But let's assume for a moment [00:13:14] Speaker 01: Let's assume for a moment that somehow you can go into the text and do that. [00:13:20] Speaker 01: It says here once. [00:13:22] Speaker 01: It's not just one of the buffers is consumed by the associated media stream client. [00:13:29] Speaker 01: It's once. [00:13:30] Speaker 01: It's the concept of timing that is done. [00:13:35] Speaker 01: Let's take the assumption that the applicant believed [00:13:41] Speaker 01: But the applicant in fact believed that there was a concurrent downloading and retrieving among the ring of buffers. [00:13:51] Speaker 01: So in other words, while buffer one was downloading, buffer eight was retrieving. [00:13:57] Speaker 01: Let's assume, what would the applicant's remarks look like in that context? [00:14:05] Speaker 01: Well, they wouldn't be underlining anything related to concurrency because under that theory, there's concurrency both in the Domani reference and in claim 16 of the 213 pat. [00:14:19] Speaker 01: There would be no reason to ever emphasize that at all. [00:14:23] Speaker 01: Instead, what the applicant would be emphasizing is the concept of the same buffer. [00:14:30] Speaker 01: or one buffer, not with respect to the money, but with respect to the 213 patent. [00:14:38] Speaker 01: The whole idea of the distinction that Hulu thinks is there is that there's one buffer that does everything in the 213 patent. [00:14:46] Speaker 01: And in the money, the reference, there are multiple buffers, but that there's still the concurrency. [00:14:52] Speaker 01: That would have been the underlining throughout all of the remarks. [00:14:55] Speaker 01: I don't think you can take one remark completely out of context and not have the rest of it. [00:15:01] Speaker 01: Remember what's going on here in the prosecution history. [00:15:04] Speaker 01: In the prosecution history, the entire element, the entire claim element here [00:15:09] Speaker 01: which is concurrently retrieving a remaining portion, that entire element, which doesn't even mention a buffer at all, that element was added to overcome the money. [00:15:22] Speaker 01: It exclusively talks about the concept of concurrency. [00:15:26] Speaker 01: If the money actually disclosed concurrency, or if the applicant thought, because we're trying to figure out what was the applicant saying to the public, if the applicant believed and was saying to the public, [00:15:40] Speaker 01: This key distinction here is one buffer versus multiple buffers because both are concurrent. [00:15:48] Speaker 01: then the entire applicant's arguments make no sense at all, because it doesn't say in there anything about same buffer or one buffer in the comments, and it continuously underlies concurrently, which would not be a point of distinction between the two. [00:16:05] Speaker 01: So I agree that in isolation, you might look at this [00:16:10] Speaker 01: underlying piece, go into the money and try to think about what the money actually says and discloses, which is debatable and hotly debated. [00:16:22] Speaker 01: Uh, and maybe infer that that's what the applicant means, but easily you could think the other way as well, that the applicant wasn't trying to draw a distinction over how many buffers there are, but that the focus was on the word once, especially when taken in the context of all of the other elements. [00:16:42] Speaker 01: I think it would be, I think it's unfair to the, uh, [00:16:46] Speaker 01: to the words of the applicants themselves to take one line out of context, read it through Hulu's hindsight analysis here of what it is they want to disclaim, because that's what we're doing, and just forgetting about everything else. [00:17:01] Speaker 01: As the Delaware court said, it was obvious that he was trying to draw the concurrency distinction. [00:17:08] Speaker 01: I see I'm way into my rebuttal. [00:17:10] Speaker 03: Let's hear from the other side, and we'll restore a little time. [00:17:15] Speaker 00: Good morning, and may it please the court. [00:17:18] Speaker 00: I'm Brett Williamson, counsel for the Apple eHulu LLC. [00:17:22] Speaker 00: I want to take the second issue first, but I'll move fairly quickly to responding to appellant's arguments on the summary judgment order that found no issue of fact that the accused products did not meet the claim limitation as construed in this whole issue of the cash. [00:17:45] Speaker 00: On the preliminary issue, if you will, of whether there was a clear and unmistakable disavowed claims scope, Judge Toronto, you asked the question precisely as we briefed and as is the case. [00:17:58] Speaker 00: The underlining is entirely consistent with our view of what was being distinguished, and that includes the underlining in the applicant's [00:18:09] Speaker 00: statement to the examiner as well as the underlying from the quote to the abstract of the reference that was being distinguished. [00:18:18] Speaker 00: The underlying specifically says in the abstract into money, once one of its buffers is consumed by the associated media stream client, which as Appellant has already said means once it's emptied, then there goes back into that queue. [00:18:37] Speaker 00: And so of course, and logically, and consistent with our position, the underlying in the applicant statement is talking about what happens in that specific buffer, while concurrently retrieving a remaining portion of the requested SM object from another helper server or a content server. [00:18:54] Speaker 00: Concurrently empties and fills the buffer while the money reference teaches filling the buffer only after the buffer is emptied. [00:19:02] Speaker 00: So this is a false dichotomy between serial and continuous. [00:19:07] Speaker 00: It's all about one buffer and context. [00:19:09] Speaker 00: There's nothing inconsistent between the view that the district court took and this disclaimer. [00:19:15] Speaker 04: I think Mr. Coleman ultimately said something like the following. [00:19:20] Speaker 04: It may be consistent with that it might be possible to read this passage in the prosecution history. [00:19:27] Speaker 04: And let's stipulate for purposes of [00:19:30] Speaker 04: this question that it is possible, but that's not enough. [00:19:37] Speaker 04: It has to be actually clearer than that to find a disclaimer. [00:19:41] Speaker 04: And among the reasons that it's not clearer, I think he said, is if that's the point we were trying to make, we would have written it differently, underlined differently. [00:19:52] Speaker 04: I mean, written the part that they wrote and underlined differently in the part of the quote. [00:19:57] Speaker 00: The question, though, from this court's opinion in [00:19:59] Speaker 00: technology properties, for instance, in many other cases, isn't what the applicant may have done. [00:20:04] Speaker 00: It's what one of ordinary skill would read the words. [00:20:07] Speaker 00: And I submit to this court that having read through that case, the trustees of Columbia v. Symantec, and several other of this court's cases that sustained, or I should say, affirmed a district court's decision with a limiting construction, this is clearer than any of those. [00:20:25] Speaker 00: I mean, these are the words in the applicant's statement. [00:20:30] Speaker 00: The applicant's invention concurrently empties and fills the buffer, while the money reference teaches filling the buffer only after the buffer is emptied. [00:20:40] Speaker 04: It helps that you get by your voice to do some underlining that's not quite there. [00:20:46] Speaker 00: Well, but it's no other place in the disclaimer does it discuss multiple buffers when talking about the concurrent process. [00:20:54] Speaker 00: We think it's very clear that this was exactly the type of clear and unmistakable disavowal of claim scope that the cases review. [00:21:02] Speaker 00: But I would point this court to its recent case in Aptalis, where [00:21:07] Speaker 00: The court found that even in the absence of a clear and unmistakable disavowal, the prosecution history can be evaluated to determine how one of ordinary skill would understand a given claim term. [00:21:19] Speaker 00: And as we laid out in our papers, it is a singular buffer that's allocated in the claim language, the sole reference to the specification that the applicant used to support the amendment. [00:21:31] Speaker 00: And remember, this was an amendment made in response to the examiner's 102 rejection. [00:21:36] Speaker 00: That portion of the specification specifically refers to what's happening just in one of the single allocated buffers. [00:21:42] Speaker 00: We think that the disavowal is clear here. [00:21:45] Speaker 00: But let me move on to the cash versus buffer issue. [00:21:51] Speaker 00: First, the district court here did precisely what numerous district courts whose decisions have ultimately been affirmed by this court did. [00:22:00] Speaker 00: He took the dispute that the parties had and resolved it [00:22:04] Speaker 00: There is nothing in any of the cases cited by appellant and none that we found that required a further construction of buffer when it was made clear that the only issue here was whether the claim construction of buffer was limited to just a single buffer being concurrently emptied and refilled. [00:22:25] Speaker 00: This was an argument that was then raised after the claim construction dispute on summary judgment. [00:22:31] Speaker 00: And I submit to this court that this is as detailed a district court analysis of a claim construction dispute as you will see. [00:22:40] Speaker 04: I did not take Mr. Kelman's point this morning, at least as emphasized this morning, to be a, I don't know, let's call it a procedural point. [00:22:50] Speaker 04: I think he's making a substantive point about substantive error in the district court's determination that [00:23:01] Speaker 04: these things called a cache simply kind of because they were called a cache can't be a buffer. [00:23:08] Speaker 04: And he says, that's wrong. [00:23:10] Speaker 04: Um, it certainly isn't persuasive without adopting a definition of what a buffer is, because this isn't the game of words. [00:23:21] Speaker 04: Um, you need to know what a buffer is to know whether the physical thing. [00:23:28] Speaker 04: that is being called a cache in the two accused devices come under that. [00:23:34] Speaker 04: And A, that wasn't done. [00:23:36] Speaker 04: But B, if it is done, he's asking that we actually adopt a claim construction, which he says was fully briefed. [00:23:46] Speaker 00: To the extent that that is the argument, not that it was improper for the district court [00:23:51] Speaker 00: to not further specifically construe buffer, then I cannot replace what I believe to be clearly a correct analysis by the district court, because that's what the district court did in the opinion. [00:24:03] Speaker 00: This isn't a case where he said, well, buffer can't be a cache just because that's not the way cache is used. [00:24:10] Speaker 00: That's not the way buffer is used. [00:24:11] Speaker 00: The analysis in the district court's opinion was entirely based [00:24:16] Speaker 00: on the 213 patent. [00:24:17] Speaker 00: Multiple, multiple instances of buffer and cash being used, not in any time interchangeably, but always distinctly indistinguished. [00:24:30] Speaker 00: Specifically, the court noted that a buffer was distinct from a cash-read disk by siding to Figure 9. [00:24:39] Speaker 04: But what does a cash do in that figure? [00:24:42] Speaker 04: And this is the, what, column 10 discussion of RTSP, RTP, and I have no idea what those initials mean at the moment, but a particular embodiment. [00:24:51] Speaker 04: What's the cash doing there? [00:24:53] Speaker 00: The cash here is not related to the function in the claim limitation that we're talking about, because that limitation in that one claim, claim 16, is talking about an allocated buffer. [00:25:05] Speaker 00: So the cash management doesn't have anything to do with what happens in one of the several [00:25:11] Speaker 00: buffers that are within the cash. [00:25:13] Speaker 00: It's just two different things. [00:25:15] Speaker 00: And fundamentally, this is not just in the lexography of electronic engineers or computer scientists. [00:25:23] Speaker 04: And in the accused products, is the thing called a cash doing something like what the figure nine, column 10 cash is doing? [00:25:33] Speaker 00: I don't believe that was ever in the record one way or the other. [00:25:36] Speaker 00: There is some testimony from the witnesses for [00:25:40] Speaker 00: the CDNs that talk about that there is a function of the cache, and I think that's some of what Appellants Council was referring to today. [00:25:47] Speaker 00: But the 213 patent, the intrinsic evidence, what must be priority in construction, specifically defines a buffer, one of several memory locations in the main memory of the helper server. [00:26:02] Speaker 00: A cache in a helper server, and this is undisputed, there's one cache. [00:26:07] Speaker 00: The cache is the definition of the place where there is memory. [00:26:11] Speaker 00: And there are buffers that have a specific function within that memory. [00:26:14] Speaker 00: And the function defined in this patent has them allocated. [00:26:18] Speaker 04: Did you just say that a buffer can be part of a cache? [00:26:21] Speaker 00: Yes, and we've acknowledged that a buffer, a cache is made up of many different buffers. [00:26:27] Speaker 00: But to say that the cache can satisfy the buffer limitation, what is this rate? [00:26:31] Speaker 04: So why couldn't the cache be entirely made up of one buffer and therefore be a buffer? [00:26:37] Speaker 00: Because it cannot perform [00:26:39] Speaker 00: There are multiple buffers in the cash as disclosed in the 213 patent. [00:26:45] Speaker 00: There's no disclosure of a cash that would be made up of only one buffer. [00:26:50] Speaker 00: There has to be multiple buffers in order to perform the steps of a streaming system like this. [00:26:56] Speaker 00: And if you read cash to be the buffer, most of that claim would be meaningless. [00:27:01] Speaker 00: There's nothing to allocate. [00:27:03] Speaker 00: You can't allocate a buffer while other buffers are doing different things. [00:27:06] Speaker 00: That's what this patent is about. [00:27:08] Speaker 00: It's nonsensical. [00:27:09] Speaker 00: And we don't think this is a close case, with all due respect. [00:27:12] Speaker 00: Cash and buffer are two different things with respect to how they're disclosed in the 213 patent. [00:27:18] Speaker 00: But if there's any suggestion that this court should adopt a construction or give instructions on remand, we clearly do not think that this case should be remanded, obviously. [00:27:31] Speaker 00: But the choice that is being urged by appellant [00:27:38] Speaker 00: Temporary storage for data being sent or received violates all of this court's instructions regarding claim construction because it has no support in the 213 patent. [00:27:50] Speaker 00: It's completely untethered to the 213 patent. [00:27:52] Speaker 00: They rely on extrinsic evidence that extrinsic evidence was raised, considered, and rejected by the district court in its opinion. [00:28:01] Speaker 00: in no sense would it be appropriate to reject the district court's very reasoned and detailed distinction between buffer and cache and adopt a completely extrinsic evidence-based definition of buffer, of temporary storage for data being sent or received, especially in light of the fact that the 213 patent does define buffer as one of several memory locations in the main memory of the helper server. [00:28:28] Speaker 00: It does nothing to direct one of ordinary skill as to what a buffer is. [00:28:33] Speaker 00: That was Appendix 0177, and I believe it's Column 10, Lines 57 to 60 of the 213 patent. [00:28:48] Speaker 00: I need my glasses for this. [00:28:50] Speaker 02: Let me ask you a question just unrelated to this while we're looking it up. [00:28:55] Speaker 02: I see that [00:28:58] Speaker 02: the claims of 062 patent were dismissed because they were not patented under 101. [00:29:05] Speaker 02: That's correct. [00:29:06] Speaker 02: Was that brought up under this patent, the 101 defense? [00:29:11] Speaker 00: I do not believe there was a 101 defense to the 213 patent. [00:29:15] Speaker 00: There were 101 challenges to a couple of the patents. [00:29:18] Speaker 00: There were originally six patents. [00:29:20] Speaker 00: I apologize to your honor. [00:29:21] Speaker 00: I don't recall exactly from the history. [00:29:23] Speaker 00: But as you might imagine, there were several different dispositive steps during the district court litigation. [00:29:31] Speaker 00: But I do not remember that. [00:29:33] Speaker 02: But I just thought if 062 was violated 101, I think this one would too. [00:29:42] Speaker 02: But I guess it wasn't raised. [00:29:44] Speaker 00: I believe that's the case. [00:29:47] Speaker 02: Probably because you would like to have it too, right? [00:29:53] Speaker 00: So let me finish this point. [00:29:58] Speaker 03: Where were you pointing us to? [00:30:01] Speaker 00: I scribbled my notes very quickly. [00:30:05] Speaker 00: Column 10, lines 57 to 60. [00:30:08] Speaker 00: It says the buffer management module manages a pool of buffers in the main memory of a helper server. [00:30:17] Speaker 00: And then it talks about each buffer containing data to service a client request for an SM object. [00:30:22] Speaker 00: And that's the data that's downloaded while concurrently being retrieved. [00:30:26] Speaker 00: So buffer in the operation of the patent, and in particular, claim 16, has never been read, was never considered in the specification or in the plan to include cash. [00:30:38] Speaker 04: This is part of a particular embodiment. [00:30:40] Speaker 04: Does the claim at issue here require a buffer management module? [00:30:46] Speaker 00: It does not by its terms. [00:30:48] Speaker 00: It requires allocating a buffer. [00:30:50] Speaker 00: And so the specification talks about how the buffer then provides the steps. [00:30:58] Speaker 00: But that is an important part of this claim. [00:31:02] Speaker 00: And Your Honor, you pointed this out before. [00:31:04] Speaker 00: I mean, in one of the last remarks that Appellants' Council made, [00:31:09] Speaker 00: talked about how, well, we have to just read this limitation. [00:31:12] Speaker 00: We left out that part of this claim requires allocating a buffer. [00:31:17] Speaker 00: That is critical. [00:31:17] Speaker 00: You can't just look at concurrently downloading and retrieving. [00:31:20] Speaker 04: But that issue hasn't been decided, right? [00:31:23] Speaker 00: Well, the issue of whether or not a cash is being allocated, correct. [00:31:27] Speaker 00: That has not been decided. [00:31:28] Speaker 00: But it is important to the first issue we talked about in terms of the clear disavowal. [00:31:33] Speaker 00: It is not appropriate to look at the amendment that added the limitation of [00:31:38] Speaker 00: downloading while concurrently retrieving and saying there's nothing about one or two or multiple buffers without reading the part of the claim at the beginning that says allocating a buffer. [00:31:51] Speaker 00: Unless the court has any questions about the last issue, which was not discussed before having to do with the Daubert decision, we'll rest on our briefs. [00:32:01] Speaker 00: Thank you. [00:32:03] Speaker 03: We'll restore two minutes of rebuttal. [00:32:06] Speaker 01: Thank you, Your Honor. [00:32:08] Speaker 01: May I proceed? [00:32:11] Speaker 01: Yes, please. [00:32:11] Speaker 01: Let me pick up where my colleague just left off. [00:32:17] Speaker 01: This column 10 citation is under the heading of RTP, RTSP. [00:32:28] Speaker 01: And as Judge Toronto asked, is this part of the claim? [00:32:32] Speaker 01: It is part of a claim. [00:32:34] Speaker 01: It is claim 17. [00:32:36] Speaker 01: Claim 17 is directed explicitly to this buffer, this buffer management and cash management, et cetera. [00:32:46] Speaker 01: We point this out in the briefing as well. [00:32:50] Speaker 01: The part of the specification actually is most directly related to claim 16 is actually the data transfer rate control, which is at the top of column 8. [00:33:03] Speaker 01: So any suggestion that we should read what's in column 10 into this claim [00:33:08] Speaker 01: is taking what's in claim 17 and sticking it into claim 16 where it's just clearly not claimed at all. [00:33:15] Speaker 01: But sticking to the buffer issue, we still have not heard any construction of the term buffer. [00:33:24] Speaker 01: Buffer is the only word. [00:33:27] Speaker 01: Cash is not in claim 16. [00:33:29] Speaker 01: So we don't need a construction of cash. [00:33:33] Speaker 01: It is as a verb, that is true. [00:33:35] Speaker 01: And so I was about to say that as part of the intrinsic evidence, right, cache is as a verb. [00:33:40] Speaker 01: So it's a buffer for caching, right, to cache. [00:33:43] Speaker 01: And that is, by the way, intrinsic. [00:33:47] Speaker 01: The intrinsic evidence talks about a buffer. [00:33:50] Speaker 01: This is at column seven, lines 20 to 21. [00:33:53] Speaker 01: A buffer operates as a type of short-term cache. [00:33:58] Speaker 01: I mean, buffer and cache overlap each other in general. [00:34:02] Speaker 01: But I think the key point here is that Hulu had an opportunity at the district court to actually proffer construction. [00:34:09] Speaker 01: They had an opportunity in the briefing. [00:34:10] Speaker 01: They had an opportunity here. [00:34:12] Speaker 01: Your honor was asking the question. [00:34:13] Speaker 01: We don't have any construction from Hulu. [00:34:16] Speaker 01: Sending it back to the district court now. [00:34:19] Speaker 01: For now, Hulu to start proposing it up when the issue is completely joined is just going to waste resources. [00:34:25] Speaker 01: We'll be right back here again with either party having one below. [00:34:29] Speaker 01: The issue is right here right now. [00:34:31] Speaker 01: It can be decided and it can be decided on the intrinsic record and the extrinsic record that we supply. [00:34:37] Speaker 01: There's no argument in Hulu's briefing or here today that our construction is actually wrong and what it should be instead. [00:34:45] Speaker 01: It's actually an easy decision for this court. [00:34:48] Speaker 03: Thank you. [00:34:49] Speaker 01: Thank you, Your Honor. [00:34:49] Speaker 03: Both sides, the case is submitted. [00:34:51] Speaker 03: That concludes our proceeding for this meeting.