[00:00:00] Speaker 04:
Okay, our final case this morning is number 21, 1910, UPaid Systems Limited versus Card Concepts, Inc.

[00:00:09] Speaker 04:
Okay, Mr. Petrie?

[00:00:11] Speaker 05:
Good morning, Your Honors.

[00:00:13] Speaker 05:
May it please the Court.

[00:00:16] Speaker 05:
UPaid's appeal presents three different issues, and each of those issues is independent of each other.

[00:00:22] Speaker 05:
So if UPaid prevails on any one of those, this case should be remanded.

[00:00:27] Speaker 05:
I'd like to start with the external networks issue.

[00:00:31] Speaker 05:
The district court granted summary judgment of non-infringement because it held that as a matter of law, networks used to connect components of the platform cannot be the external networks as recited in the claims.

[00:00:45] Speaker 05:
That holding was legal error because it allowed CCI to resurrect the claim instruction that the district court had previously rejected, as we pointed out in our reply brief.

[00:00:55] Speaker 05:
That holding was also legal error because it disregarded the summary judgment evidence that you pay presented, showing that in fact the networks in CCI's accused products were separate from the platform as the district court required.

[00:01:12] Speaker 05:
CCI's proposed claim construction set out on appendix page 25.

[00:01:16] Speaker 03:
Is the difference here on separate, whether it's physically separate?

[00:01:22] Speaker 03:
Or is it functionally separate?

[00:01:24] Speaker 03:
It seems like your expert was arguing, presenting a test for separate that would maybe provide some sort of functional separateness.

[00:01:32] Speaker 03:
Whereas the district court's opinion seems to talk about having to be physically separate.

[00:01:37] Speaker 03:
It could be connected to the platform, but it can't be involved in interconnecting portions of the platform.

[00:01:47] Speaker 05:
Right, so the district court

[00:01:50] Speaker 05:
claim construction ruling at appendix page 51 said that a network connected to the platform may be a component part of the platform and therefore within it, while a network separate from the platform is necessarily outside of it.

[00:02:07] Speaker 05:
So I think this relates to your question that if a network is physically connected to a component of the platform, there is a question, does that make that network part of the platform?

[00:02:21] Speaker 03:
I think the board said it can be connected to one component.

[00:02:26] Speaker 03:
It would be physically separate.

[00:02:28] Speaker 03:
But if it's used to interconnect two components of the platform, it necessarily is within the platform.

[00:02:35] Speaker 05:
I think that's what the board said.

[00:02:39] Speaker 05:
That was the court's conclusion on summary judgment.

[00:02:42] Speaker 03:
Yes.

[00:02:42] Speaker 03:
But I think that's what its claim construction said as well.

[00:02:46] Speaker 05:
No, I disagree, Your Honor, because what the court's

[00:02:49] Speaker 05:
What the court said in the claim construction order was a network connected to the platform may be a component part of the platform.

[00:02:58] Speaker 03:
Okay, well what if that doesn't matter and instead the only question is what is the proper claim construction?

[00:03:06] Speaker 03:
Why is it incorrect to say that a network that is interconnecting two components of the platform is part of the platform?

[00:03:15] Speaker 03:
It's not external or outside, it's within it.

[00:03:19] Speaker 03:
Why is that incorrect?

[00:03:21] Speaker 05:
Well, it's because the district court's claim construction order required that the network be separate from the platform.

[00:03:29] Speaker 05:
And so the issue here is, when is a network separate from the platform?

[00:03:35] Speaker 05:
And so there's really, there's two steps in the infringement analysis.

[00:03:38] Speaker 05:
First, you construe the claims, then you see if the defendant infringed.

[00:03:43] Speaker 03:
Your view is that it can't be part of claim construction.

[00:03:45] Speaker 03:
The termination of what separate means should not be part of claim construction.

[00:03:49] Speaker 03:
It's part of the fact finding, and that the court made a fact finding.

[00:03:53] Speaker 05:
Is that right?

[00:03:55] Speaker 05:
Not exactly.

[00:03:58] Speaker 05:
The court's claim construction required the network to be separate from the platform.

[00:04:04] Speaker 05:
Dr. Jartoi, our expert, provided evidence that in the accused devices, the network there were separate from the platform.

[00:04:13] Speaker 05:
And he did it by, he analyzed the source code, he looked at the documentation and determined that the platform in the accused products did not control the network.

[00:04:26] Speaker 05:
It couldn't restrict access to the network.

[00:04:29] Speaker 05:
So all of that showed that the networks were separate from and not a component part of the network.

[00:04:37] Speaker 05:
And so that's factual evidence that goes to the infringement question, not the claim construction.

[00:04:44] Speaker 03:
What if, I'm right, and the district court in fact construed the claim to say that the network has to be physically separate from the platform?

[00:04:53] Speaker 03:
Not just that it doesn't control things for your expert's testimony, but it has to be physically separate.

[00:04:59] Speaker 03:
And that means that they cannot interconnect two components of the platform.

[00:05:04] Speaker 03:
If that's a claim construction determination,

[00:05:07] Speaker 03:
And there isn't a genuine issue of material fact, right?

[00:05:11] Speaker 03:
It's a claim construction issue.

[00:05:13] Speaker 05:
That is true, yes.

[00:05:15] Speaker 05:
But what I would like to explain is the district court actually rejected that as a claim construction.

[00:05:22] Speaker 05:
So CCI proposed a claim construction that would have an additional network

[00:05:29] Speaker 05:
in which the platform resides that's separate from the external networks.

[00:05:35] Speaker 04:
Where does the district order reject the claim construction?

[00:05:39] Speaker 05:
In its claim construction order.

[00:05:47] Speaker 05:
Penix page 50.

[00:05:47] Speaker 05:
50.

[00:05:49] Speaker 05:
Yeah.

[00:05:54] Speaker 05:
Neither here

[00:05:56] Speaker 05:
nor in their dispute over platform do the parties present evidence supporting any network limitation on platform.

[00:06:03] Speaker 05:
So the court declined CCI's invitation to suggest that limitation.

[00:06:08] Speaker 05:
So CCI was proposing to have this limitation, the network limitation on platform, and it did so in its original proposed claim construction.

[00:06:20] Speaker 05:
It had proposed adding

[00:06:21] Speaker 05:
a network in which the platform resides.

[00:06:25] Speaker 04:
During summary judgment, did we construe this term?

[00:06:29] Speaker 05:
The court, during summary judgment, should have been applying the claims as already construed.

[00:06:34] Speaker 04:
No, we've held repeatedly that district court can change the claim constructions as the case goes along.

[00:06:40] Speaker 05:
Well, if the court was going to change the claim construction, we didn't have any notice

[00:06:46] Speaker 05:
all we had notice of was the original claim construction, and we provided evidence under that original claim construction that CCI infringed.

[00:06:55] Speaker 05:
And the court didn't indicate in its claim construction order, I don't believe it did, that it was changing its claim construction.

[00:07:04] Speaker 05:
It had already rejected CCI's attempt to have a limitation.

[00:07:09] Speaker 04:
It's true the claims that are required in the networks be external to the platform, right?

[00:07:14] Speaker 04:
I'm sorry?

[00:07:15] Speaker 04:
It did construe the claims as requiring that the networks be external to the platform in the summary judgment order.

[00:07:26] Speaker 05:
Well, I think it was applying its claim construction order and said that the networks had to be external to the platform, but that was not what the claim construction originally did.

[00:07:37] Speaker 02:
Doesn't the claim itself say

[00:07:39] Speaker 02:
What does the claim say, outside of, right?

[00:07:42] Speaker 05:
Right, right.

[00:07:43] Speaker 05:
Outside of, and uses various terms like that.

[00:07:46] Speaker 00:
I don't see that the court came up with a new claim construction or a different one.

[00:07:53] Speaker 00:
It just merely interpreted the claim construction it had already established.

[00:07:59] Speaker 00:
In our cases, that's permissible.

[00:08:02] Speaker 05:
I think if we walk through the claim construction proceedings, you'll see that the court original claim construction

[00:08:08] Speaker 05:
actually rejected CCI's proposal to have a construction that would exclude a network between two platform components.

[00:08:17] Speaker 05:
So once CCI proposed to this claim construction that there is a network in which the platform resides and that the external networks have to be separate from that network, it explained what that meant.

[00:08:30] Speaker 05:
I mean, it identified these issues and on page 8802 of the appendix,

[00:08:36] Speaker 05:
It says the two issues are whether the claim networks are one, composed of different switches, which is not an issue, or two, whether the claim networks are separate from the network in which the platform components reside.

[00:08:49] Speaker 03:
I understand what you're saying, but maybe the court was saying that there could be a platform that doesn't connect.

[00:08:55] Speaker 03:
It's connected.

[00:08:56] Speaker 03:
The different components of it are connected to one another, but not through a network.

[00:09:02] Speaker 03:
I mean, so therefore, you wouldn't want to limit the claims to just a platform that has its own separate network.

[00:09:07] Speaker 05:
Well, I would actually submit that you could have platform components connected through a network, but that network is not an external network in such a situation where, for instance.

[00:09:22] Speaker 03:
I understand, but maybe the court wouldn't.

[00:09:24] Speaker 03:
My point was simply that you can imagine reasons why the court wouldn't have accepted the client construction that was being

[00:09:33] Speaker 03:
offered, but nonetheless still held that the network has to be outside of the platform.

[00:09:42] Speaker 05:
Right.

[00:09:42] Speaker 05:
And I think that really gets to the issue is what would it mean to be outside the platform?

[00:09:47] Speaker 03:
Right.

[00:09:48] Speaker 05:
And so that's what Dr. Jartoi provided the evidence on.

[00:09:52] Speaker 03:
As Judge Dyke mentioned, during summary judgment, the court could provide further elaboration of its claim instruction.

[00:10:00] Speaker 03:
It doesn't even have to provide notice.

[00:10:02] Speaker 03:
it just can further construe the claims.

[00:10:04] Speaker 03:
And so why didn't that happen here?

[00:10:06] Speaker 03:
It seems to me it did, so I want to know your view on why not.

[00:10:11] Speaker 05:
I think what the court did was it just went back and allowed CCI to change the, you know, go back and recapture the claim construction that the court had already adopted.

[00:10:22] Speaker 05:
I mean, we were providing our infringement evidence based on the court's claim construction.

[00:10:31] Speaker 03:
And I think that under the court's claim construction, it's... Are you arguing today that the court's construction, if I'm correct, and the court is construing the language outside of, I mean physically outside, why is that construction wrong?

[00:10:49] Speaker 03:
Do you have an argument on that?

[00:10:55] Speaker 05:
Well, I think yes, because if you think of the internet being a network,

[00:11:01] Speaker 05:
That's outside of the platform, even if two components are communicating over the internet.

[00:11:09] Speaker 05:
Because the internet connects a lot of other components worldwide, and that's what Dr. Jartoi was explaining.

[00:11:16] Speaker 05:
It's like if the network, I mean if the platform can't control who has access to the network, then the network is external to the platform, and that would be the example of the internet.

[00:11:29] Speaker 05:
As a contrary example would be like a bus.

[00:11:32] Speaker 05:
There could be a bus on the device where these platform components are communicating with each other and the platform can control who has access to that bus.

[00:11:41] Speaker 03:
Your argument does sound factual and not like you're relying on the intrinsic evidence or anything like that.

[00:11:47] Speaker 05:
No, it's factual as to what the court meant by separate.

[00:11:54] Speaker 05:
What in the accused device meets the term, meets the construction of separate?

[00:12:02] Speaker 05:
Or when is a network a component part of the platform?

[00:12:06] Speaker 05:
And Dr. Chartoy provided the evidence on that.

[00:12:14] Speaker 05:
And I think though,

[00:12:25] Speaker 05:
So I think our point here though is that the district court originally rejected CCI's attempt to have a claim construction that would include a network between two platform components.

[00:12:41] Speaker 05:
And we provided evidence through Dr. Chartoy as to why the CCI products met the court's claim construction that he ended up with.

[00:12:52] Speaker 05:
And one of the important parts there is that the court said that it's not clear that once the court rejected CCI's attempt to add this additional network where the platform resides, it's not clear that the two claim constructions are meaningfully different.

[00:13:09] Speaker 05:
So we had proposed a claim construction that would say, yeah, a network between two platform components can be an external network.

[00:13:20] Speaker 05:
And so,

[00:13:22] Speaker 05:
And that's why Dr. Jartoy provided the factual evidence to show that, in fact, in CCI's products, their network was external to the platform, because, for instance, I said the platform didn't control it, didn't limit access to it, and that.

[00:13:42] Speaker 05:
So unless there's any further questions, I'll reserve my time for rebuttal.

[00:13:45] Speaker 05:
Okay, thank you.

[00:13:47] Speaker 04:
We'll hear from Mr. Curtis.

[00:13:49] Speaker 01:
Good morning, Your Honors, may it please the Court?

[00:13:53] Speaker 01:
I'm Tara Curtis, here on behalf of the Appellee Card Concepts, Inc.

[00:13:59] Speaker 01:
I think this is a pretty simple case of non-infringement, and I'd like to start with where UK Council used the bulk of their time, and that was to explain the District Court's claim construction on Appendix Page 51,

[00:14:16] Speaker 01:
So the first point, I guess, is that the U.K.

[00:14:20] Speaker 01:
Council several times mentioned that CCI was attempting to insert an additional network in which the platform resides.

[00:14:31] Speaker 01:
We actually dropped that portion of our construction in our reply brief.

[00:14:36] Speaker 01:
And so that was not something that CCI was pushing for by the time the district court got to explain construction order.

[00:14:44] Speaker 01:
And the only thing that, actually that was the only thing that the district court disagreed with in CCI's proposed construction.

[00:14:54] Speaker 01:
Beyond that, the district court actually adopted, almost verbatim, it changed some words around to make things a little bit more clear, but adopted, at least in substance, CCI's proposed construction.

[00:15:09] Speaker 01:
The language, I think that,

[00:15:12] Speaker 01:
UPAID's counsel was focused on is that the district court found not much of a difference between UPAID's proposal for the connected to language and DCI's proposal of separate from.

[00:15:28] Speaker 01:
And I think Judge Stoll, you might pick up on this, the district court said connected to didn't capture what was actually being claimed.

[00:15:37] Speaker 01:
Because a network connected to the platform could, in fact, be external to you if you have a platform and you plug a network into it that's connected to it.

[00:15:49] Speaker 01:
But it can also capture networks that are within the platform connecting different pieces of the platform.

[00:15:55] Speaker 01:
That colloquially also could refer to a network that is connected to the platform.

[00:16:01] Speaker 01:
And so the district court went with the separate from language to clarify that

[00:16:08] Speaker 01:
whatever the external networks are, they are not connecting the component pieces of the platform because that connected tooling was too broad because it would capture those internal connections.

[00:16:20] Speaker 01:
And actually what the claims cover are these completely external connections that are not piecing together the component parts of the platform.

[00:16:31] Speaker 01:
And I'll just note that during its claim construction briefing, UPay actually said it didn't disagree

[00:16:38] Speaker 01:
with this interpretation of the claim language, and that's on appendix page 10201.

[00:16:45] Speaker 01:
U-Page says, okay, I'll give you one more to get there.

[00:16:52] Speaker 01:
It's the first full paragraph on that page.

[00:17:00] Speaker 01:
On the second line, U-Page says that the external networks are external or outside the platform.

[00:17:05] Speaker 01:
U-Page does not receive this

[00:17:07] Speaker 01:
and never has.

[00:17:08] Speaker 01:
And this was UP's response brief, Your Honors, after CCI had clearly made the argument that internal connecting components are not the types of external networks that are being claimed.

[00:17:27] Speaker 01:
I'll also note that to the extent there was confusion or some lack of clarity,

[00:17:33] Speaker 01:
in the district court's claim construction, your honors are absolutely right that any ambiguity or any issue or concern was clarified by the district court's summary judgment order in which it clearly said these internal connecting pieces are not the claimed external networks.

[00:17:52] Speaker 01:
And of course, this makes sense.

[00:17:55] Speaker 03:
So let me interrupt you for one minute.

[00:17:58] Speaker 03:
You're saying that is a legal determination based on claim construction.

[00:18:02] Speaker 03:
Is that right?

[00:18:04] Speaker 01:
Yes, Your Honor, that's right.

[00:18:05] Speaker 01:
It's a legal dissemination.

[00:18:07] Speaker 01:
To the extent there was any reconstruction happening, we don't believe that there was.

[00:18:12] Speaker 01:
We believe that the district court's claim construction order was perfectly clear as to what separate from actually the end.

[00:18:19] Speaker 01:
But to the extent, Your Honor, by any beauty, or to the extent we believe that the district court was, in fact, doing some sort of reconstruction or clarification, we think it was entirely consistent with the district court's initial claim construction.

[00:18:34] Speaker 01:
and was simply a legal determination as to what the separate from language means.

[00:18:42] Speaker 01:
In contrast, UPAID expert Dr. Jartoy was providing a completely new construction.

[00:18:50] Speaker 01:
He never, UPAID or Dr. Jartoy during the plane construction process, never once said, oh, this is what I think separate from means, despite the fact that

[00:19:02] Speaker 01:
CSDI's construction throughout the entirety of the claim construction process had this separate-from language in it.

[00:19:11] Speaker 01:
UK never made any, you know, whiff of an argument about, you know, separate-from means doesn't manage or control or the different things that are in Dr. D'Artois' declaration now and summary judgment.

[00:19:24] Speaker 01:
And so if anybody was applying a new claim construction in your owners, it was, it was easy to try and pull in these

[00:19:32] Speaker 01:
different configurations of PCIs, various accused products, and to try to kind of piece together some sort of an infringement theory.

[00:19:44] Speaker 01:
And I'll just end, I guess, unless the honors have other questions.

[00:19:47] Speaker 01:
The whole point of this invention is to connect these external networks, or this is a telecommunications

[00:19:57] Speaker 01:
The purpose of it was for a user to call in from one line, the platform does some work and connects it up to another line.

[00:20:07] Speaker 01:
The entire purpose was to overcome issues with those external networks not being able to communicate with one another.

[00:20:15] Speaker 01:
And so it makes sense.

[00:20:16] Speaker 01:
It is entirely consistent with the purpose of the invention and the claims and the specification that these external networks

[00:20:25] Speaker 01:
are completely outside of and not connecting component parts of the networks.

[00:20:32] Speaker 01:
Unless your honors have any further questions, I'll see you through later in my time.

[00:20:37] Speaker 04:
Okay, thank you, Ms.

[00:20:38] Speaker 04:
Harness.

[00:20:39] Speaker 04:
Mr. Petrie?

[00:20:44] Speaker 05:
Your honors, just a couple of points here.

[00:20:47] Speaker 05:
My colleague mentioned that

[00:20:50] Speaker 05:
CCI dropped the requirement that there be an additional network as part of the claim construction proceedings.

[00:20:56] Speaker 05:
There's a little bit of wordplay going on there.

[00:20:59] Speaker 05:
They dropped the requirement that there be this additional network where the platform resides, but they changed it from the network where the platform resides to any network where the platform resides.

[00:21:13] Speaker 05:
Knowing that in their products, they have these

[00:21:16] Speaker 05:
these components interconnected through what they allege is an internal network.

[00:21:22] Speaker 05:
And so they say they dropped the requirement, but they left the limitation.

[00:21:26] Speaker 05:
The limitation was still there.

[00:21:29] Speaker 05:
And the district court rejected their attempt to put that in, even if they changed the to any.

[00:21:34] Speaker 05:
So that was still in there, even though they say they dropped it.

[00:21:38] Speaker 05:
They dropped the requirement, but they left in that if it's there, then it wouldn't be an external network.

[00:21:46] Speaker 05:
And one other point is that the district court reason it's claim construction is that a network connected to the platform may be a component part of the platform.

[00:21:58] Speaker 05:
And so the issue there is networks, how can the platform be communicating with a network unless it's connected to it?

[00:22:06] Speaker 05:
So the question is, what does it mean by, when is it connected to the, I mean,

[00:22:13] Speaker 05:
all these networks will somehow be connected to the platforms.

[00:22:16] Speaker 05:
So the district court said a network separate from the platform is necessarily outside of it.

[00:22:22] Speaker 05:
So the issue there is, well, when is a network separate from the platform?

[00:22:26] Speaker 05:
And that was, I think, the second step is the actual question is to end the accused products

[00:22:34] Speaker 05:
Are those networks separate from the platform?

[00:22:37] Speaker 05:
And that was Dr. Jartoi's testimony.

[00:22:40] Speaker 03:
Just a quick question.

[00:22:41] Speaker 03:
When I look at figure one in the patent suit, I see that there is a platform.

[00:22:47] Speaker 03:
It's on the bottom.

[00:22:48] Speaker 03:
And then there's three different networks that are connected to that box that is the platform.

[00:22:53] Speaker 03:
The internet and two other networks.

[00:22:57] Speaker 03:
Why isn't that the kind of separate from the district where it's talking about?

[00:23:02] Speaker 05:
Well, that's just showing the network connections.

[00:23:09] Speaker 05:
I would point to the figure of, what, 27F that we cited in our briefing that shows that there are network components that communicate through the Internet, and that was contemplated by the claim dimension.

[00:23:30] Speaker 05:
Okay.

[00:23:31] Speaker 05:
Thank you, your honor.

[00:23:31] Speaker 05:
Thank you, Mr. Beechley.

[00:23:32] Speaker 04:
Thank you, Mr. Curtis.

[00:23:33] Speaker 04:
The case is submitted.

[00:23:34] Speaker 04:
That concludes our session for this morning.