[00:00:00] Speaker 03:
The last case this morning is Treehouse Avatar versus Valve Corporation, 2022, 1171.

[00:00:07] Speaker 03:
Mr. Graham.

[00:00:11] Speaker 02:
Yes, Your Honors.

[00:00:12] Speaker 02:
May it please the court.

[00:00:13] Speaker 02:
The district court erred and abused its discretion when it struck the expert record of Stacey Friedman and then erred in granting summary judgment of non-refringent as a result.

[00:00:27] Speaker 02:
This court, so far as we can tell,

[00:00:30] Speaker 02:
has addressed the question of expert reports and consistency with the claim construction on three occasions.

[00:00:40] Speaker 02:
And the touchstone seems to be inconsistency.

[00:00:46] Speaker 02:
So in Cortis, where the claim construction required undulating, requires an up and a down, a U shape was inconsistent.

[00:00:57] Speaker 02:
And in Frank's casing, the same thing.

[00:00:59] Speaker 02:
It was directly contrary to the claim instruction.

[00:01:05] Speaker 01:
And the same thing happened in- Here, the district court didn't say that the plain and ordinary meeting was necessarily contrary to the agreed upon construction, but that they were different, right?

[00:01:17] Speaker 01:
Isn't that what the district court said?

[00:01:19] Speaker 02:
I think that's the point, Your Honor, that inconsistency is something more than different.

[00:01:23] Speaker 02:
Plain and ordinary meaning, obviously, is not the same literal wording of the claim construction.

[00:01:29] Speaker 02:
It's different word choices.

[00:01:31] Speaker 01:
Well, I'm not sure that's right.

[00:01:32] Speaker 01:
I mean, only because you can look at our cases, and maybe that's what our cases are referring to.

[00:01:37] Speaker 01:
But I don't know if you can extrapolate from our cases to say that we're going to reverse the district court for it just being different.

[00:01:44] Speaker 01:
I think the biggest question is whether your expert addressed the limitations of the claims, including the claim construction agreed upon by parties.

[00:01:53] Speaker 02:
I would fully agree with that, Your Honor, and I think that's our point in briefing this and in looking at the precedent.

[00:02:01] Speaker 02:
I believe that in each of those three prior cases where this Court has affirmed the striking of an expert report,

[00:02:08] Speaker 02:
You could see that the expert applied it in a way that was not merely different in word choice, but which changed the result and which was directly contrary, like strictly at odds with the claim construction to produce that different result.

[00:02:24] Speaker 02:
And I believe we don't have that here.

[00:02:26] Speaker 02:
What we have is the articulation of plain and ordinary meaning, but then following that initial reference, which was mistaken, the application of the claims by describing what the accused system does, and doing so in a way that is consistent with what the claim required.

[00:02:43] Speaker 01:
I think what some of your argument, what I get from your brief, I think, is that the expert

[00:02:49] Speaker 01:
satisfied these requirements of the claim in a different way or address them in a different way.

[00:02:56] Speaker 01:
But is that really what I guess I'm trying to get at.

[00:03:00] Speaker 01:
When I'm looking at an abusive discretion standard, should I require the district court to hunt and pack through your experts report and try and figure out and gather whether he in fact addressed, for example, whether there is a site program?

[00:03:16] Speaker 02:
No, I wouldn't think that that would be a task that we should thrust upon the district judge.

[00:03:20] Speaker 02:
But I would submit respectfully that we didn't do that either.

[00:03:23] Speaker 02:
In the response to the motion to strike, we went through each of the four subparts as we broke down the claim construction and pointed specifically to the catalog of where the expert report addressed each one of those so that the district court judge could specifically see how it was addressed in the report in every possible way.

[00:03:47] Speaker 02:
So in this case, that is the crux of the issue.

[00:03:52] Speaker 02:
In this case, the expert, Mr. Friedman, evaluated each of what we consider to be the four aspects of the claim construction.

[00:04:01] Speaker 02:
He pointed to network locations in great detail with IP addresses and showing exactly where Valve operated network locations.

[00:04:09] Speaker 02:
He never identified any one of those as being a site program or a network location that was a user device.

[00:04:16] Speaker 02:
There's no argument by Valve that any of those are user devices because they're not.

[00:04:21] Speaker 01:
That can't be the answer.

[00:04:23] Speaker 01:
The answer can't be, well, it's a technicality.

[00:04:26] Speaker 01:
It doesn't matter.

[00:04:27] Speaker 01:
Had we put it in, we would have been able to show it.

[00:04:31] Speaker 01:
My question is this.

[00:04:33] Speaker 01:
Where do you expressly say the accused device has the requirements

[00:04:41] Speaker 01:
of the claim construction agreed upon by the parties?

[00:04:45] Speaker 02:
I think the problem, Your Honor, is word choices and whether the word choices that were used align with the word choice of the construction, even though in some cases there are some differences.

[00:04:57] Speaker 02:
And I would submit that this is the sort of thing that happens in the trenches of patent litigation all the time, but in a different way.

[00:05:05] Speaker 02:
What we would typically see would be an expert who would

[00:05:08] Speaker 02:
mention the court's claim of instruction, and then embark on 100 pages of description about what the acute system does, using all manner of different language that's not verbatim, because after all, it's 100 pages of explanation.

[00:05:22] Speaker 02:
And so there's always a difference.

[00:05:24] Speaker 02:
We speak in language.

[00:05:25] Speaker 02:
We use prose.

[00:05:26] Speaker 02:
We describe what's going on.

[00:05:29] Speaker 02:
Almost always, 99% of that is in word choices that are different from what the actual literal claim construction is.

[00:05:35] Speaker 01:
Do you want to keep in generalities like this, or do you want to walk through for us where you think in the expert report each of those limitations is satisfied and discussed?

[00:05:45] Speaker 02:
I would be happy to point those out and would submit that we did so in the briefing as well.

[00:05:50] Speaker 01:
It's in your brief.

[00:05:51] Speaker ?:
OK.

[00:05:52] Speaker 01:
I mean, it's going to come down to that, right?

[00:05:54] Speaker 01:
Isn't it?

[00:05:55] Speaker 01:
The question of whether you've demonstrated that there's an abuse of discretion will largely come down to whether the court erred in making a determination that you hadn't, in fact, done that.

[00:06:10] Speaker 02:
Right.

[00:06:10] Speaker 02:
I would submit, Your Honor, that at appendix 821,

[00:06:15] Speaker 02:
That's the location where we were addressing the response to the motion to strike.

[00:06:22] Speaker 02:
And that's where we articulated to the district court each of the subparts of the claim limitation.

[00:06:32] Speaker 02:
And so starting in the middle of 821, line 6, we say- You're reading us your brief from below?

[00:06:40] Speaker 00:
No, no.

[00:06:41] Speaker 02:
I'm sorry, Your Honor.

[00:06:42] Speaker 02:
I thought I was getting at your question how you were asked, I believe, for me to point to specifically where the expert addressed each of the subparts of the- Well, why would you not look to the expert report to do that?

[00:06:55] Speaker 01:
I can get there in a lot of ways.

[00:06:56] Speaker 01:
Maybe I'm misunderstanding, but I thought the expert report was at page

[00:07:01] Speaker 01:
I thought that it started at page A773.

[00:07:04] Speaker 01:
And so why wouldn't you point to that as opposed to your briefing?

[00:07:09] Speaker 01:
Am I missing something?

[00:07:10] Speaker 02:
No, I don't think so, Your Honor.

[00:07:12] Speaker 02:
I envisioned that I could come at this question a few different ways.

[00:07:15] Speaker 02:
You began a question I thought with, is it incumbent upon the district judge to figure it out?

[00:07:20] Speaker 02:
And I thought I was answering how we pointed it out for him.

[00:07:24] Speaker 02:
In the brief here is where we pointed it out to the district judge, including with citations to the expert report.

[00:07:30] Speaker 01:
I understand your answer to that question.

[00:07:32] Speaker 01:
And now I would say I'd be more interested in knowing why you think this expert report addresses the elements that were in the grid pond construction.

[00:07:44] Speaker 02:
Why do I think so?

[00:07:45] Speaker 02:
Well, it ends up being voluminous, because there's quite a lot in the expert report.

[00:07:50] Speaker 02:
And to that point, we showed each one of those four separate subparts, the network location, IP addresses, and so forth.

[00:08:01] Speaker 02:
Other than user devices, none of them were that.

[00:08:05] Speaker 02:
We addressed all manner of.

[00:08:07] Speaker 02:
programs that the servers were operating in order to do so and we explained, Mr. Friedman explained how there was a presentation to the user interface that was resulting from that, pointing to the various things that appear on the user interface that are different and that wouldn't have occurred without that interaction with the server.

[00:08:31] Speaker 02:
And so each one of those is articulated both in

[00:08:35] Speaker 02:
in the briefing we pointed out to the district court and then cited and turned to all the various locations voluminously in the expert report itself.

[00:08:46] Speaker 02:
And so it's our view that having gone through each sub-part of it, Mr. Friedman addressed every single part of it and there was no consistency with it.

[00:08:56] Speaker 02:
We would also submit that the opinion wouldn't change.

[00:09:01] Speaker 02:
He mentioned that in his own supplement saying, hey, I left it out, but if I put it in, it wouldn't change because I addressed all of those subparts.

[00:09:09] Speaker 02:
The infringement opinion and position also would not change.

[00:09:13] Speaker 01:
What is your best site for where you think he addressed operating under control of a site program?

[00:09:22] Speaker 02:
So he addresses that in a variety of places.

[00:09:27] Speaker 02:
At Appendix 824, there's a listing of where he does that, pointing to his report at paragraphs 42, 48, 43, 50, 52, 51 to 62, 56.

[00:09:41] Speaker 02:
He addresses the various servers, how they manage the game, how they operate the Steam platform.

[00:09:47] Speaker 01:
He also threw that like a particular sentence that I should look at in the expert report.

[00:09:51] Speaker 01:
I mean do you want to Point to a particular one of those that you think is what is your strongest?

[00:09:59] Speaker 02:
The the strongest argument is I believe in the test that he performed and you could see the dual images of the two different screens where he

[00:10:12] Speaker 02:
played offline and online and he logged in online and he acquired character attributes and then he closed down and he logged in with a different computer and he was able to download and obtain those same previously accessed character attributes thereby demonstrating that it was operating under control of the server to give him permission to display those same ones.

[00:10:35] Speaker 02:
He showed in the report the same way, that there were character attributes that were already owned and others that were available and the pricing information that could only have come from the server.

[00:10:47] Speaker 02:
And for its part, Valve's expert, Dr. Zaita, says that functionality of that sort is also unavailable offline, which shows that the site programs are controlling and providing that information only when you are online to do it.

[00:11:05] Speaker 03:
We can save the rest of your time for you.

[00:11:08] Speaker 02:
Sure, Your Honor, I would.

[00:11:09] Speaker 02:
I would submit lastly, though, that the summary judgment was also erroneously granted.

[00:11:19] Speaker 02:
Doctor, the summary judgment decision itself rested solely on the belief that the online and offline systems were the same.

[00:11:28] Speaker 02:
The screen displays were the same.

[00:11:30] Speaker 02:
That was based on a faulty reading of Dr. Zaita's expert report saying that they were essentially identical.

[00:11:38] Speaker 02:
But Dr. Zaita never did a true offline test.

[00:11:41] Speaker 02:
He did it online first, then pulled the plug, and the online initial part of the test had already downloaded information and affected the display.

[00:11:49] Speaker 02:
that test in itself, in his admission that some things would be different, at least by itself created an issue of fact.

[00:11:57] Speaker 02:
I would submit that in striking

[00:12:01] Speaker 02:
Mr. Friedman's expert report, what the district court also did largely was strike factual descriptions of the system.

[00:12:10] Speaker 02:
Experts do a variety of things.

[00:12:12] Speaker 02:
In this case, well, often they'll have an ultimate conclusion.

[00:12:16] Speaker 02:
It infringes.

[00:12:16] Speaker 02:
It doesn't infringe.

[00:12:17] Speaker 02:
It meets this limitation.

[00:12:18] Speaker 02:
It doesn't meet this limitation.

[00:12:20] Speaker 02:
But they'll also simply verbalize what they see the accused system doing.

[00:12:24] Speaker 02:
That should be admissible and let the jury decide whether the limitations are satisfied or not.

[00:12:31] Speaker 02:
And we believe that there was enough there to create an issue of fact, and the summary judgment was erroneously granted.

[00:12:37] Speaker 03:
Thank you.

[00:12:38] Speaker 03:
Mr. Barceló, have I pronounced your name correctly?

[00:12:43] Speaker 05:
It's Barceló.

[00:12:44] Speaker 05:
And good morning, and may it please the court.

[00:12:47] Speaker 05:
My name is Reynaldo Barceló.

[00:12:49] Speaker 05:
I represent Apple Lee Valve Corporation.

[00:12:52] Speaker 05:
And as a member of a bar, I'll just say I'm very happy to be here before the court again in person.

[00:12:58] Speaker 05:
The court and its questions got right to the heart of the matter.

[00:13:02] Speaker 05:
What does appeal come down to?

[00:13:04] Speaker 05:
It does not come down to what Mr. Friedman, Treehouse's expert, put in his report.

[00:13:08] Speaker 05:
It comes down to proper procedure and application of the standards of review.

[00:13:13] Speaker 05:
There's a highly deferential abuse of discretion standard.

[00:13:17] Speaker 05:
And most of what Treehouse's counsel just argued under this brief are just re-arguing the facts that are presented before the district court on the motion to strike.

[00:13:28] Speaker 05:
There's one arbiter of all the facts.

[00:13:30] Speaker 01:
Yes, ma'am.

[00:13:31] Speaker 01:
Let me ask you a question.

[00:13:33] Speaker 01:
Hypothetically, if I did think that there was no difference between the plain and ordinary meaning and the claim construction the parties agreed upon, I could say that there was a legal error in the court's analysis, which would then be an abuse of discretion.

[00:13:49] Speaker 01:
I understand it is certainly reviewed for an abuse of discretion, but if there is a legal error,

[00:13:55] Speaker 01:
That's an abusive discretion.

[00:13:57] Speaker 01:
Do you agree with that hypothetical?

[00:13:58] Speaker 01:
I do agree with that.

[00:13:59] Speaker 05:
It doesn't apply in this case at all.

[00:14:01] Speaker 05:
And we can walk through why not.

[00:14:02] Speaker 05:
And that may be, basically, the touchstone.

[00:14:05] Speaker 05:
But if your honor is in this court, if that doesn't hold true, then we're done, basically, because of the highly deferential standard of the review.

[00:14:13] Speaker 05:
And if we look at the judge's order on the motion to strike, and I mean, this really boils down to this.

[00:14:20] Speaker 05:
So I'm going to be looking at it and citing from it.

[00:14:22] Speaker 05:
It's at appendix page 21.

[00:14:25] Speaker 05:
On its face, it demonstrates how it's not illogical.

[00:14:29] Speaker 05:
It's not implausible.

[00:14:31] Speaker 05:
It's not without support.

[00:14:33] Speaker 05:
The district court goes through at appendix 21, and he says that there were at least several reasons why the arguments about the claim construction being the same are wrong.

[00:14:45] Speaker 05:
At appendix page 21, line 15, that's internal pagination, page 3, the defendant argues

[00:14:53] Speaker 05:
that the ordinary meaning omits several requirements.

[00:14:56] Speaker 05:
And those are the three sub-requirements that Your Honor asked Treehouse's counsel about.

[00:15:01] Speaker 05:
The ordinary meaning construction omits three of the essential requirements.

[00:15:06] Speaker 05:
They're listed there.

[00:15:07] Speaker 05:
To present a character object or scene was one of them.

[00:15:10] Speaker 05:
The second one to be on a user device.

[00:15:13] Speaker 05:
And then whether the network side excludes user devices.

[00:15:16] Speaker 05:
That's not illogical.

[00:15:17] Speaker 05:
That's not implausible.

[00:15:19] Speaker 05:
That's not without support.

[00:15:20] Speaker 05:
The support is stated right there in the order itself.

[00:15:23] Speaker 05:
And then secondly, a little further down, the court here is quoting from the defendant.

[00:15:29] Speaker 05:
But in the very next paragraph, it says that the court agrees with all of this.

[00:15:32] Speaker 05:
That's page four, line six of the order, just flipping the page over, that Treehouse's counsel's argument that there's redundancy when you compare the plan in order and the meaning that Treehouse's expert admittedly applied with the agreed construction, that that doesn't apply.

[00:15:50] Speaker 05:
Basically, rejecting that argument and the district court in its discretionary role here was entitled to conclude that it's correct.

[00:15:59] Speaker 05:
We can analyze it through the court's case, all the claim construction jurisprudence of this court.

[00:16:04] Speaker 05:
It's perfectly logical, perfectly plausible, and well supported.

[00:16:08] Speaker 05:
And therefore, under the red lightning standard of the Ninth Circuit that applies here,

[00:16:13] Speaker 05:
We're basically done at that point, because what Treehouse's council is doing is just re-arguing the facts of whether what its experts said was applying the construction or not.

[00:16:22] Speaker 05:
The district court looked at that and concluded that it did not.

[00:16:25] Speaker 01:
Can I ask you a different question?

[00:16:26] Speaker 01:
Another way that I've been thinking about this was, did the expert nonetheless address these three requirements in the agreed upon construction?

[00:16:34] Speaker 01:
And for example, they argued that the expert did address, for example, the presenting to the user

[00:16:42] Speaker 01:
portion of the claim construction, because there's an element in claim 21 that talks about displaying the character, I think, to the user.

[00:16:53] Speaker 01:
What is your response to that?

[00:16:55] Speaker 01:
Is your response either that all three of them have to be satisfied and they're not, or is your response something more like that's not the right way to look at it?

[00:17:02] Speaker 01:
What is your thought?

[00:17:07] Speaker 05:
expert, 300 experts' opinions would stand if they did address the correct complaint construction, regardless of which words were used.

[00:17:15] Speaker 05:
But that's not what happened here.

[00:17:17] Speaker 05:
We did an exercise that Your Honor is contemplating.

[00:17:19] Speaker 05:
We went through every single paragraph that was cited by the incorporation by reference in the opposition.

[00:17:26] Speaker 05:
And it's not there.

[00:17:27] Speaker 05:
And our brief goes through it.

[00:17:29] Speaker 00:
Which one is?

[00:17:29] Speaker 00:
What is it?

[00:17:30] Speaker 05:
The site program.

[00:17:30] Speaker 05:
We focused on the site program.

[00:17:32] Speaker 05:
That's the easiest to see.

[00:17:32] Speaker 05:
But we did all three.

[00:17:34] Speaker 05:
It would have bloated our brief if we covered all of them.

[00:17:37] Speaker 05:
Just look at the site program.

[00:17:38] Speaker 05:
It's not there.

[00:17:38] Speaker 05:
He doesn't even use the word.

[00:17:39] Speaker 05:
On the presenting, Treehouse's counsel talks about whether things are managing other things, whether things are controlling other things.

[00:17:49] Speaker 05:
That's not presenting.

[00:17:51] Speaker 05:
Val's expert was unequivocal.

[00:17:54] Speaker 05:
In his opinion, at paragraph 74 of his report, I can cite you the page in the appendix, where he said, there are no character-enabled network sites.

[00:18:02] Speaker 05:
Any display that's happening is being done by the user's local computer, and no presentation is being performed by any valve server.

[00:18:12] Speaker 05:
That was unequivocal.

[00:18:13] Speaker 05:
And actually, on that point, let me just say, we can't even get off the starting gate on that argument, because the cases are legion, saying you can't raise a new argument on appeal.

[00:18:23] Speaker 05:
That's true in the Ninth Circuit, as well as in this circuit, or any other circuit in this country.

[00:18:27] Speaker 05:
And that's what Treehouse's council was doing.

[00:18:29] Speaker 05:
They didn't have a short 18-line opposition to the summary judgment motion.

[00:18:34] Speaker 05:
All they cite is their experts' opinions, most of which were stricken.

[00:18:38] Speaker 05:
Nothing about what our experts said on offline or online, but which we can defend.

[00:18:43] Speaker 05:
And it's perfectly fine.

[00:18:44] Speaker 05:
But they don't even get there because they didn't argue it to the district court.

[00:18:49] Speaker 05:
And we did.

[00:18:49] Speaker 05:
They resort to saying that Val didn't argue

[00:18:54] Speaker 05:
about online-offline mode, but that's not false.

[00:18:57] Speaker 05:
That's false.

[00:18:57] Speaker 05:
On page 926 of our motion on summary judgment, there's extensive citations at page 3 in the internal pagination of that motion, lines 5 through 6.

[00:19:10] Speaker 05:
We're talking about online-offline mode, citations to Dr. Zaita, including the citation to paragraph 75 where he says there's no character-enabled network site.

[00:19:20] Speaker 05:
A few lines down, appendix page 926,

[00:19:24] Speaker 05:
uh... lines nine through eleven offline online what it's all there they were on notice about this issue they didn't talk about any evidence about doctors i didn't argue it and now they're just presenting it on appeal that's appellate law 101 you don't get to argue things that you didn't argue below if you want citation i can tell you about the hylite versus hybrid athletics case from a couple years ago from this court we will not entertain arguments not presented to the lower tribunal

[00:19:52] Speaker 05:
And so what's happening here is that Treehouse is giving short shrift to a key issue that basically greatly affects the outcome.

[00:20:01] Speaker 05:
The standard of review on the motion to strike is highly deferential.

[00:20:06] Speaker 05:
There's one arbiter of all the facts, all the documents, all the evidence relating to the motion to strike and whether their experts' opinions were consistent with the claim construction or not.

[00:20:16] Speaker 05:
And that was the district court.

[00:20:18] Speaker 05:
And he did so.

[00:20:19] Speaker 05:
And he ruled in favor of valve on that.

[00:20:21] Speaker 05:
And under the highly deferential standard, of course, any judge of this court is perfectly capable of redoing that analysis, but that's not what the standard is.

[00:20:30] Speaker 05:
The standard is that the district court perform a logical, plausible, and well-supported analysis, and he did.

[00:20:39] Speaker 01:
I hear you expect that I would just interject again that if there were, I'm not saying there is a legal error or a clearly erroneous finding of fact, that would be an abusive script.

[00:20:50] Speaker 05:
Right, but then we have to scratch our heads about that and say, well, how would that take place?

[00:20:54] Speaker 05:
It would have to be misapplying?

[00:20:56] Speaker 05:
the rule that the district court had to apply.

[00:20:59] Speaker 05:
And that would be the court's case and its progeny, which clearly say- Well, it would be five rules of evidence, right?

[00:21:04] Speaker 00:
Yeah, the rules of evidence, which- Five rules of several procedures.

[00:21:06] Speaker 05:
The district court is the master of the courtroom and all the evidence in there, and that's a discretionary world.

[00:21:12] Speaker 05:
So everyone agrees that the correct legal rule was employed from the court's case.

[00:21:18] Speaker 05:
Their agreement on this point, just to be very clear about that,

[00:21:29] Speaker 05:
cordage.

[00:21:31] Speaker 05:
I believe it's on, just a second, what's cordage?

[00:21:37] Speaker 05:
In the blue brief, the opening brief on page 23 where they cite cordage, they agree that plane construction

[00:21:45] Speaker 05:
opinions that are contrary to the agreement, so basically the construction that applies have to be disregarded.

[00:21:50] Speaker 05:
So there's no path to reversal based on using the incorrect legal rule, and there's no path to reversal based on are you going about the claim construction?

[00:21:59] Speaker 05:
Because in their reply brief on page three, they finally agreed that that was the correct construction in all its glory, with all the different parts about it from the PTAB about you certify the site program and presenting.

[00:22:12] Speaker 05:
So there really can be no argument that the district court got it wrong on the legal side or on the factual side.

[00:22:17] Speaker 04:
Councilor, are there any portions of the Treehouse Expert Report that address online mode play or the purchase of character attributes like the helmet and the un-lance and things?

[00:22:33] Speaker 05:
I believe Treehouse's expert talks about purchases and purchases not being available in off-life mode.

[00:22:38] Speaker 05:
I think that's what your Honor must be referring to.

[00:22:40] Speaker 05:
Purchases are not a claim function.

[00:22:43] Speaker 05:
The patent doesn't use the word purchase ones in connection with any other character attributes.

[00:22:48] Speaker 05:
That's not part of what's being accused.

[00:22:50] Speaker 05:
What we're talking about are the actual, you know, the guy, your guy that you're playing with, whether it's the Dragon Knight or somebody else, those are the characters, and those are the presentations that the construction of character enabled network site focuses on, and there's zero evidence that those presentations are being performed by any Valve server.

[00:23:10] Speaker 05:
And so what we are is once their experts' opinions are stricken, they're left with either arguing about some unstricken portion of the report that doesn't use even the right words from the claim, especially site program.

[00:23:25] Speaker 05:
or talking about something that our experts said, which, again, is a new argument on appeal.

[00:23:30] Speaker 05:
And even if you look at it, there's no there there.

[00:23:34] Speaker 05:
So with all due respect, we believe that there are ample grounds for affirmation, lots of off-ramps that this court can take, because we went down the path every single leaf of this and argued it in our briefs.

[00:23:46] Speaker 05:
But there's no need to do that.

[00:23:48] Speaker 05:
You can basically use an off-ramp.

[00:23:51] Speaker 05:
at the beginning of this whole exercise.

[00:23:53] Speaker 05:
And if there are no further questions, we'll just rest on our briefs.

[00:23:57] Speaker 03:
Thank you, Mr. Boswell.

[00:23:59] Speaker 03:
Mr. Graham has two and a half minutes.

[00:24:02] Speaker 02:
Thank you, Your Honor.

[00:24:04] Speaker 02:
If I may, just a few points.

[00:24:10] Speaker 02:
Valva started with a comment about

[00:24:12] Speaker 02:
the order on summary judgment and referring to differences the district court found at appendix page 21 between Mr. Friedman's construction and the claim construction that the parties agreed to when the court adopted.

[00:24:28] Speaker 02:
At that part, line 15, it's starting with the court's account of

[00:24:34] Speaker 02:
Valve's argument.

[00:24:35] Speaker 02:
He's reciting the argument.

[00:24:37] Speaker 02:
And therein, he is simply looking at difference of word choices.

[00:24:39] Speaker 02:
He's not looking at inconsistencies.

[00:24:41] Speaker 02:
It's simply reflecting the mere fact that plain, ordinary meaning doesn't have those several different subparts.

[00:24:48] Speaker 02:
Second point, if I may, the issue about a new argument on appeal.

[00:24:53] Speaker 02:
I appreciate counsel's point referring to a citation of the appendix where there was something about online and offline.

[00:25:00] Speaker 02:
But that's just background.

[00:25:01] Speaker 02:
There was no argument being advanced there.

[00:25:03] Speaker 02:
If you look at Appendix 932, you see what Val's argument was on summary judgment on this one point that the district court rested on.

[00:25:15] Speaker 02:
And there is no argument there about online, offline.

[00:25:19] Speaker 02:
It starts at the top of 932, and it ends on the first line of 933.

[00:25:23] Speaker 02:
That is the entirety of the argument, which basically says once you strike Mr. Friedman, you have to look at Dr. Zida and that's all there is.

[00:25:32] Speaker 02:
No articulation of that and there's no new argument being made on appeal.

[00:25:36] Speaker 02:
And then lastly, if I may, the issue of the purchases.

[00:25:40] Speaker 02:
Now, Mr. Friedman, in his report, starting at appendix 1087, goes on at length about how you make the purchase and how you interact with the server to do it.

[00:25:49] Speaker 02:
And he's proving that all of this happens at the server level and how it presents it to the display and how you have it.

[00:25:55] Speaker 02:
And it shows you all the things that happen every step along the way.

[00:25:58] Speaker 02:
Now, Val brushes that aside as saying, hey, that's not claimed.

[00:26:01] Speaker 02:
But he misses the point.

[00:26:03] Speaker 02:
The point is that is the user computer accessing Val's network sites

[00:26:09] Speaker 02:
to see character attributes and, yes, purchase them, but also the server presents them on the display and tells you you've acquired them.

[00:26:18] Speaker 02:
And thereafter, after you've purchased them, he continues on in his report to explain how if you leave your computer, go to an entirely different computer,

[00:26:27] Speaker 02:
Login, the server will give you and show you on your display those same things that you just purchased.

[00:26:33] Speaker 02:
So he's showing how this very CE network site limitation is satisfied there.

[00:26:40] Speaker 02:
Thank you, Your Honor.

[00:26:42] Speaker 03:
Thank you.