[00:00:00] Speaker 04:
Okay, the next argued case this morning, number 21, 2040, BDPP LLC against Vizio Incorporated.

[00:00:10] Speaker 04:
Mr. Warson.

[00:00:31] Speaker 01:
Good morning, your honors.

[00:00:32] Speaker 01:
Matt Warson for VDPP.

[00:00:36] Speaker 01:
We believe that the district court... Can you speak up a little bit?

[00:00:39] Speaker 01:
Yes.

[00:00:39] Speaker 01:
Yes, your honor.

[00:00:40] Speaker 01:
We believe that the district court misapplied Williamson in this case.

[00:00:45] Speaker 01:
So I'd like to begin by discussing Williamson and then a later case decided in 2021, Rain Computing.

[00:00:54] Speaker 01:
In both cases, the federal circuit affirmed the

[00:01:00] Speaker 01:
invalidity of patent claims under section 112 as invoking paragraph 6 and being indefinite under paragraph 2.

[00:01:11] Speaker 01:
In Williamson, the claim term was distributed learning control module.

[00:01:19] Speaker 01:
In RAIN computing, the claim term was user identification module.

[00:01:27] Speaker 01:
In both cases, this court

[00:01:30] Speaker 01:
looked at the claim language and looked at the specification for evidence of whether one of ordinary skill in the art would read those terms and have reasonable certainty as to what they were and what he or she needed to perform that element of the claim.

[00:01:54] Speaker 01:
And at that step, that would be to invoke paragraph six.

[00:01:59] Speaker 01:
And it's our position that the district court here erred by invoking paragraph six in the first place.

[00:02:08] Speaker 01:
The claim terms, and to compare these to the two modules just referenced in Williamson and Rain Computing, the terms here are processor and storage.

[00:02:20] Speaker 01:
And so to start off with, if the court looks at the claim language, there is plenty of teaching as to what one of ordinary skill in the art would need in order to perform this element or these elements of the processor and the storage.

[00:02:42] Speaker 01:
And so to take it as an example, claim one of the 444 patent

[00:02:49] Speaker 01:
the storage is going to store image frames.

[00:02:55] Speaker 01:
That's the storage's function.

[00:02:58] Speaker 01:
And it's our submission that, and this is referred to in the specification, that the patentee here used off-the-shelf computing components, and in fact specified a firm in Massachusetts

[00:03:14] Speaker 01:
that the patentee got good results with for the computing elements, including the storage.

[00:03:22] Speaker 01:
The processor, it performs a number of functions which are recited in the claims.

[00:03:29] Speaker 01:
First of all, the processor is going to need to obtain an image frame from a video stream.

[00:03:38] Speaker 01:
The processor needs to expand to modify the image frame.

[00:03:43] Speaker 01:
The processor needs to generate a bridge frame.

[00:03:48] Speaker 01:
Then the processor blends the bridge frame and the modified image frame.

[00:03:54] Speaker 01:
And finally, the processor displays these images.

[00:03:58] Speaker 01:
Are these all functions?

[00:04:00] Speaker 01:
They are functions, Your Honor.

[00:04:02] Speaker 01:
They are functions that define the functions just listed.

[00:04:07] Speaker 01:
define exactly what this processor in claim one of the 444 patent needs to achieve.

[00:04:15] Speaker 01:
That's not structure.

[00:04:17] Speaker 01:
It is structure, your honor.

[00:04:20] Speaker 01:
We rely on this court's decision in NEVRO

[00:04:26] Speaker 01:
for the idea that it's not per se a Section 112 problem for the patentee to define the claim according to functions.

[00:04:38] Speaker 03:
But in a case like this, with issues like this, it isn't so much how the decisions that matter.

[00:04:45] Speaker 03:
It's what these particular patents say and how they use the terms.

[00:04:51] Speaker 03:
Incidentally, how these patents expire, I see they go back to 2002.

[00:04:58] Speaker 01:
These patents are not expired, Your Honor.

[00:05:05] Speaker 01:
But to follow up on the question, Your Honor, these claims are very particular as to the functions that the processor needs to perform.

[00:05:16] Speaker 01:
And so to analogize to another term, screwdriver, that is so well known in the art

[00:05:26] Speaker 01:
that the artisan doesn't need to know how the screwdriver works.

[00:05:31] Speaker 01:
And we would compare the same thing.

[00:05:33] Speaker 03:
But doesn't a processor need code in the sense that a screwdriver doesn't?

[00:05:40] Speaker 01:
Not, Your Honor, not special code to perform these functions.

[00:05:46] Speaker 01:
Our argument is that in the specification, and perhaps I could read from it, it's at page 82 of the appendix

[00:05:56] Speaker 01:
Which patent are you referring to?

[00:06:00] Speaker 01:
The 922 patent, Your Honor.

[00:06:05] Speaker 01:
Page 82 of the appendix at line 58.

[00:06:11] Speaker 01:
Blending of the... Of column what?

[00:06:14] Speaker 01:
Oh, I'm sorry.

[00:06:15] Speaker 01:
Column 9, Your Honor.

[00:06:16] Speaker 01:
Page 82.

[00:06:25] Speaker 01:
Blending of the pictures is accomplished in any manner, which allows for both pictures to be merged in the same picture frame.

[00:06:34] Speaker 01:
And now jumping down to line 62, blending is done in a conventional manner, using conventional equipment, suitably photographic means a computer, an optical printer, or a rear screen projection device.

[00:06:54] Speaker 01:
And then

[00:06:57] Speaker 01:
jumping down again to line 67, suitable software programs include Adobe Photoshop, Media 100, and Adobe After Effects.

[00:07:12] Speaker 01:
Good results have been obtained with Media 100 from Multimedia Group Data Translations Inc.

[00:07:20] Speaker 01:
of Marlboro, Massachusetts, USA.

[00:07:24] Speaker 01:
The point is that the specification is teaching the artisan, go to this firm in Massachusetts.

[00:07:34] Speaker 01:
They will provide you with generic computing components which fulfill the functions of this invention.

[00:07:42] Speaker 01:
And so you can get a generic processor.

[00:07:46] Speaker 01:
And so that's why we're arguing that zero-click applies to this case and would be the basis to reverse the district court.

[00:07:56] Speaker 01:
Because as in zero-click, where the claims had elements of the prior art, conventional computing programs, that was not the point of novelty in the invention.

[00:08:11] Speaker 01:
The patentee was not claiming as novel those prior art programs.

[00:08:18] Speaker 01:
They provided the environment within which the invention would work and deliver the novel result.

[00:08:34] Speaker 01:
That's what I have to present to the court.

[00:08:39] Speaker 02:
I thought on the threshold question.

[00:08:44] Speaker 02:
The threshold question is whether the term processor and the term storage is understood by persons of skill in the art as the name of a structure.

[00:08:57] Speaker 02:
And if not, we can just stop talking about 112F.

[00:09:01] Speaker 02:
Is that the point or not?

[00:09:05] Speaker 02:
And I would think processor, at least storage, at least with storage device, has probably been used in thousands upon thousands of patents.

[00:09:17] Speaker 02:
And it would be quite a stunning change, would it, to say that suddenly that is covered by 112.6?

[00:09:29] Speaker 01:
Yes, I agree.

[00:09:32] Speaker 01:
112.F now, I guess.

[00:09:34] Speaker 01:
I agree.

[00:09:35] Speaker 01:
That's our point.

[00:09:36] Speaker 02:
You were pausing just because you were thinking I'm omitting something.

[00:09:41] Speaker 02:
What are you thinking I'm omitting?

[00:09:44] Speaker 01:
No, Your Honor.

[00:09:44] Speaker 01:
I was just making sure I agree.

[00:09:47] Speaker 01:
I don't believe there's a Section 112 issue here.

[00:09:51] Speaker 01:
And I think that's what Your Honor is saying, that these claim terms communicate

[00:09:59] Speaker 01:
to the artisan exactly what is needed.

[00:10:02] Speaker 01:
And so storage, processor, they should be construed and given their ordinary names.

[00:10:11] Speaker 02:
They're names for structures that skilled artisans would recognize as names for structures.

[00:10:18] Speaker 02:
That's our point.

[00:10:22] Speaker 01:
Without further questions, I'll reserve the remainder of my time.

[00:10:26] Speaker 04:
Okay, thank you.

[00:10:36] Speaker 04:
Mr. Barquist.

[00:10:42] Speaker 00:
Good morning, your honors, and may it please the court, Charles Barquist for Vizio.

[00:10:47] Speaker 00:
If I could address the last question from Judge Toronto, I think the important thing to keep in mind in looking at these

[00:10:55] Speaker 00:
patents and the asserted claims is that it's not just storage.

[00:10:59] Speaker 00:
It's not just processor.

[00:11:01] Speaker 00:
It's storage and processor adapted to do several functions.

[00:11:06] Speaker 00:
And that's why you can't just think about just processor alone.

[00:11:12] Speaker 00:
It's not processor period.

[00:11:13] Speaker 00:
It's processor adapted to do a long list of functions.

[00:11:17] Speaker 00:
And that's why I think it fits into Williamson, where Williamson said if it recites

[00:11:23] Speaker 00:
function without reciting sufficient structure for performing that function.

[00:11:27] Speaker 00:
And there's no structure, certainly it's not cited in the claims, not even in any of the specifications that provides structure that performs those functions.

[00:11:38] Speaker 00:
I think it's important to keep in mind that these are apparatus.

[00:11:46] Speaker 02:
How does that make it a means plus function, which is to say a

[00:11:52] Speaker 02:
a nonce word, means, module, device, something like that, not recognized as a structure in the real world.

[00:12:06] Speaker 02:
I guess I'm quite confused about that.

[00:12:10] Speaker 00:
I don't think... Affirming Judge Selma in this case is not going to be reversing hundreds of cases or patents that you referred to, Your Honor.

[00:12:21] Speaker 00:
Again, the point here is that it's processor adapted to certain sync.

[00:12:25] Speaker 00:
That's the claim.

[00:12:26] Speaker 02:
So it's a structure, something recognized, and now it has to have additional properties.

[00:12:31] Speaker 02:
And I thought patents do that all the time.

[00:12:34] Speaker 00:
Right.

[00:12:35] Speaker 02:
So that doesn't make every... How do we start talking about 112.6?

[00:12:41] Speaker 00:
There's no disclosure about how to use or program or adapt, which is what the adapt is the term from the claim.

[00:12:49] Speaker 00:
There's no disclosure about how to... No disclosure?

[00:12:52] Speaker 02:
Are we talking about enablement now?

[00:12:55] Speaker 02:
Which is not about 112.6.

[00:12:58] Speaker 00:
Again, under Williamson, even if there's some structure, if the claim nevertheless recites functions without sufficient structure to perform those functions, then 112.6 applies.

[00:13:12] Speaker 00:
One of the cases that we cite, I think, is very

[00:13:14] Speaker 00:
useful, Your Honor.

[00:13:16] Speaker 00:
It's the GoDaddy case, which is a district court case that was affirmed by this court on a Rule 36 order.

[00:13:22] Speaker 00:
And in that case, the claim was a processor for associating, and I'm paraphrasing here, associating two types of data to generate a third type of data.

[00:13:33] Speaker 00:
And the court found, well, yes, the district court said, yes, well, processor does connote some structure.

[00:13:40] Speaker 00:
But when you think about processor for associating this data,

[00:13:44] Speaker 00:
which was the claim there, like the claim here, processor adapted to do certain things, the court found that it was not sufficient and that there was not sufficient structure disclosed for performing those associating functions called out in the GoDaddy claim.

[00:14:02] Speaker 00:
So the court found that you have to disclose an algorithm that would be necessary to transform that general purpose

[00:14:09] Speaker 00:
processor into the special processor called formative claim.

[00:14:13] Speaker 00:
There, a processor for associating.

[00:14:16] Speaker 00:
Here, a processor adapted to do several functions.

[00:14:21] Speaker 00:
I think if, I mean, PDPP insists throughout their whole brief and insisted this morning that conventional equipment could meet this claim.

[00:14:32] Speaker 00:
If a conventional computer could meet this claim, then there's no limitation

[00:14:39] Speaker 00:
on what this claim covers.

[00:14:41] Speaker 02:
Wait a minute.

[00:14:42] Speaker 02:
Let's just say that again.

[00:14:43] Speaker 02:
That didn't scan.

[00:14:44] Speaker 00:
If a standard processor meets this claim because it could be programmed to do the functions called for by the claim, then there's no limitation.

[00:14:55] Speaker 00:
Any processor.

[00:14:57] Speaker 00:
I mean, then the claim is reduced to two things.

[00:14:59] Speaker 00:
It's a storage and a processor, period.

[00:15:02] Speaker 00:
There's no limitation on it.

[00:15:05] Speaker 02:
Programmed to do these things.

[00:15:07] Speaker 00:
Exactly, Your Honor.

[00:15:08] Speaker 02:
That's very tightly limited.

[00:15:12] Speaker 00:
Yeah, but that's the point.

[00:15:14] Speaker 00:
It has to be programmed to do these functions, not just any processor.

[00:15:19] Speaker 02:
Right.

[00:15:19] Speaker 02:
But I guess I don't understand what you're saying when you say you have an off-the-shelf standard computer, you can program it to do these things, and now you've got something within the claim.

[00:15:32] Speaker 00:
But again, this is not a method claim.

[00:15:34] Speaker 00:
This is an apparatus claim.

[00:15:36] Speaker 00:
And it's an apparatus comprising storage and a processor.

[00:15:41] Speaker 00:
And if that's all it requires, if you ignore the functional language, then there's really no invention at all.

[00:15:48] Speaker 00:
So the only invention here, arguably, is... I cannot follow what you're saying.

[00:15:54] Speaker 02:
What does this have to do with whether this is a means plus function claim?

[00:16:00] Speaker 02:
You have a physical thing, and now by assumption,

[00:16:02] Speaker 02:
I don't even know what the latest processors are.

[00:16:06] Speaker 02:
My knowledge is way out of date.

[00:16:08] Speaker 02:
But every computer person would know what a processor is and what it looks like.

[00:16:13] Speaker 02:
And there are a variety of them.

[00:16:14] Speaker 02:
And it's a physical thing.

[00:16:16] Speaker 02:
And it is a structure.

[00:16:18] Speaker 02:
Let's say the same thing about a storage device.

[00:16:21] Speaker 02:
And now you have a claim that says, and we need to program it to do a variety of things.

[00:16:26] Speaker 02:
Where does 112.6 come into this?

[00:16:30] Speaker 00:
Again, I think it's the language from Williams.

[00:16:32] Speaker 00:
Is this the claim?

[00:16:35] Speaker 00:
The language from Williamson is that 112... This is the language referring to watts, which has... If the challenger demonstrates that the claim term fails to recite sufficiently definite structure or else recites function without reciting sufficient structure for performing that function.

[00:16:54] Speaker 00:
There's nothing in these claims.

[00:16:56] Speaker 02:
Did you put on evidence that a processor, a general processor, could not perform these functions?

[00:17:04] Speaker 00:
It's your burden.

[00:17:05] Speaker 00:
Well, the only evidence is the intrinsic record of the patents.

[00:17:10] Speaker 00:
I mean, there's no expert testimony on either side.

[00:17:13] Speaker 00:
But the question, Your Honor, is not whether someone could program a processor to perform these functions.

[00:17:23] Speaker 00:
Clearly, the claim recites these functions.

[00:17:27] Speaker 03:
Well, I gather that your point is that these claims don't recite a storage in a processor, period.

[00:17:37] Speaker 03:
They recite a storage adapted to perform a function and a processor adapted to perform functions.

[00:17:45] Speaker 03:
And the specification has to indicate how they are adapted.

[00:17:51] Speaker 00:
That's right, Your Honor.

[00:17:51] Speaker 00:
Thank you very much.

[00:17:53] Speaker 00:
what I'm trying to say, and the specification doesn't indicate how they're adapted.

[00:17:58] Speaker 00:
And there's nothing in the claims themselves that indicates how they're adapted.

[00:18:01] Speaker 00:
The claims simply recite the functions without, as Judge Selma said, without showing how those are done.

[00:18:08] Speaker 03:
Now, is it relevant that these patents go back to 2002 and have to be judged as of that time, that filing date?

[00:18:20] Speaker 00:
In a sense, yes, Your Honor, because a lot of the language that is in the specification today was added through continuation in part and continuation applications, which inexplicably added dozens of columns, dozens of figures to the patents.

[00:18:43] Speaker 00:
But that's why VDPP and Mr. Warson are emphasizing the language from the original

[00:18:50] Speaker 00:
original patent, which only says use a computer.

[00:18:55] Speaker 00:
It doesn't say anything.

[00:18:56] Speaker 00:
The word processor is not in the original application.

[00:19:00] Speaker 00:
The word storage is not in the original application.

[00:19:02] Speaker 00:
So if you go back to the original specification, there is no support of any kind for a processor or a storage and no support for these functions that are recited in the claims that are at issue.

[00:19:20] Speaker 03:
Now, we don't have a prior art rejection here, but I see that there are columns and columns of relevant references.

[00:19:29] Speaker 03:
This was obviously a crowded art in 2002.

[00:19:34] Speaker 03:
Does that tell us something about one still doing the art would know with respect to the meaning of these terms?

[00:19:43] Speaker 00:
Well, again, Your Honor, what you're referring to in terms of all those references are in the later patents.

[00:19:50] Speaker 00:
They're not in the original patent.

[00:19:51] Speaker 00:
That's all been added through years and years of prosecution.

[00:19:56] Speaker 00:
But again, I think the issue is not whether, one, a skill in the art could take a processor and program it.

[00:20:04] Speaker 00:
The question is, given that these claims require a processor adapted to do these several functions,

[00:20:12] Speaker 00:
That converts it into a 112.6 under the Williamson test.

[00:20:16] Speaker 00:
And there is no disclosure in the claims or even in the specification for how those functions are done.

[00:20:36] Speaker 02:
Can you just return to this?

[00:20:40] Speaker 02:
Try to give me some comfort.

[00:20:41] Speaker 02:
This feels rather like what was a concern to me in zero click.

[00:20:48] Speaker 02:
There I think the term was program.

[00:20:51] Speaker 02:
Here the term is processor.

[00:20:52] Speaker 02:
Here the term is storage.

[00:20:56] Speaker 02:
I would guess that there are thousands upon thousands of patents that use those terms and then add, of course, specific requirements for those things without anybody having dreamed

[00:21:10] Speaker 02:
of that becoming a 112-6 or 112-F claim.

[00:21:15] Speaker 00:
Well, I think in zero-click there were two terms that were... No, no, I understand it.

[00:21:20] Speaker 02:
Forget about zero-click.

[00:21:21] Speaker 02:
Address the general point I'm raising.

[00:21:26] Speaker 02:
These terms that clearly have and have been treated forever as having structural meaning and therefore

[00:21:36] Speaker 02:
one can stop thinking about 112F.

[00:21:39] Speaker 02:
And of course, nobody has a patent that says, I hereby claim a processor, full stop.

[00:21:44] Speaker 02:
They say, I hereby claim a processor that does the following things and isn't that nifty and inventive.

[00:21:49] Speaker 02:
And the questions are not, is that suddenly a 112F claim?

[00:21:55] Speaker 02:
But whether they're enabled, how prior art, how they fit with prior art, and so on.

[00:22:02] Speaker 00:
Again, I think these claims are not a processor stop and then a processor that can be programmed to do XYZ.

[00:22:10] Speaker 00:
It's a processor adapted to.

[00:22:12] Speaker 00:
Again, there are only basically two limitations to each of these claims.

[00:22:16] Speaker 00:
It's storage adapted to do something and processor adapted to do several things.

[00:22:22] Speaker 00:
It's not a standalone processor.

[00:22:26] Speaker 00:
I mean, I don't know what more to say about it.

[00:22:28] Speaker 02:
I mean, in zero-click, there was a reference back to... Let me stipulate or suggest, just proceed on the assumption, that every year there are 1,000, and this has been true for 50 years, 10,000 patents coming out of the patent office that says, a processor adapted to do various things.

[00:22:48] Speaker 00:
Well, we haven't seen those, Your Honor.

[00:22:51] Speaker 02:
This is all in the phrase, adapted to?

[00:22:54] Speaker 02:
Is that what we're talking about?

[00:22:57] Speaker 00:
I think it's very important, yes, because that is the claim limitation.

[00:23:00] Speaker 00:
It's a processor adapted to do these five, six, seven functions.

[00:23:05] Speaker 03:
Your point isn't that it's important.

[00:23:08] Speaker 03:
It's critical.

[00:23:10] Speaker 00:
Yes, your honor.

[00:23:13] Speaker 02:
And so what claim language in prior cases would be like this and has been held to fit within means plus function?

[00:23:24] Speaker 02:
And don't just say,

[00:23:26] Speaker 02:
Here's a phrase from Williamson that referred to Watts.

[00:23:29] Speaker 02:
The claim language is radically different there.

[00:23:32] Speaker 00:
Well, I mean, we cited the, and I mentioned the GoDaddy case.

[00:23:36] Speaker 00:
That wasn't our case, right?

[00:23:38] Speaker 00:
Which was affirmed here on rule 36, admittedly.

[00:23:42] Speaker 00:
I mean, we cited the HTC case, which talked about whether a processor and a transceiver were sufficient structure for meeting the limitation of an arrangement for

[00:23:52] Speaker 02:
reactive right there they're the claim language was something arrangement for doing something to reactivate clearly non-sword language so indisputably within one twelve six and the question was what whether the spec was enough so that's not a case either so what what is the case that says when you take a structural term like processor and say it's adapted to do something now we're talking about one twelve six

[00:24:21] Speaker 02:
What if the entire adapted structure is, and I don't even know how to finish that sentence, is what?

[00:24:30] Speaker 02:
It's still a structure.

[00:24:31] Speaker 00:
I think Williamson answers it.

[00:24:34] Speaker 00:
If the claim recites function without reciting sufficient structure for performing that function.

[00:24:40] Speaker 00:
It doesn't recite any structure for performing those functions.

[00:24:43] Speaker 00:
It just says a processor adapted to.

[00:24:46] Speaker 02:
Unless a general processor will do that when it's adapted to do that.

[00:24:50] Speaker 00:
Well, unless it could be programmed to do it.

[00:24:53] Speaker 00:
But that's the whole point.

[00:24:55] Speaker 00:
There's nothing that shows how it's programmed.

[00:24:57] Speaker 02:
I'm not making any progress.

[00:24:58] Speaker 00:
Well, and I apologize, Your Honor, that I'm not answering your question as well as I could.

[00:25:04] Speaker 03:
Your point also is that aside from the adapted to, there's no invention.

[00:25:10] Speaker 00:
Exactly.

[00:25:11] Speaker 02:
I mean, without those... I'm sorry, 112.6 is now an inquiry into whether there's an invention.

[00:25:19] Speaker 02:
I thought that's 102, 103, enablement, et cetera.

[00:25:22] Speaker 00:
Understood, Your Honor.

[00:25:24] Speaker 00:
And that's not what I'm saying.

[00:25:25] Speaker 00:
But I mean, we have to try to understand these claim limitations in the proper context.

[00:25:33] Speaker 00:
And I mean, if you don't interpret processor adapted to do several things as a

[00:25:40] Speaker 00:
specially programmed processor, then there is nothing.

[00:25:44] Speaker 00:
There's nothing except this is an apparatus that has a processor and a storage, period.

[00:25:48] Speaker 03:
Counsel, would you concede that there's a distinction between the storage and the processor?

[00:25:55] Speaker 03:
Storage is simply storage.

[00:25:58] Speaker 03:
Processor has a number of steps.

[00:26:00] Speaker 03:
So it would seem the decision with respect to storage might be a little weaker.

[00:26:07] Speaker 00:
I would agree, Your Honor, that the storage limitation is a closer call.

[00:26:11] Speaker 00:
I would agree with you on that.

[00:26:16] Speaker 02:
And why?

[00:26:18] Speaker 00:
Because there's only one function called out.

[00:26:21] Speaker 00:
Images.

[00:26:22] Speaker 00:
Storing images.

[00:26:23] Speaker 00:
And that's what storage does.

[00:26:25] Speaker 00:
But a processor, again, the processor is adapted to do these several steps.

[00:26:29] Speaker 02:
And that makes it more structural?

[00:26:35] Speaker 00:
Well, that indicates that the limitation is something that is more than just a processor.

[00:26:42] Speaker 00:
It's a processor that has to be programmed to do the steps called out.

[00:26:48] Speaker 00:
And there's no support for that.

[00:26:51] Speaker 02:
No support.

[00:26:52] Speaker 02:
What does that mean, no support?

[00:26:54] Speaker 00:
Well, I mean, again, under 112.6, there's no disclosure.

[00:26:57] Speaker 02:
I thought we were talking about the threshold question of whether this terminology invokes 112.6 at all, not whether once invoked, the spec satisfies it.

[00:27:07] Speaker 00:
Well, I think it's related, Your Honor.

[00:27:11] Speaker 00:
And again, I go back to the language from Williamson.

[00:27:13] Speaker 02:
Does it recite functions without... So really, all you have is that phrase from Williamson which involved claims nothing like this.

[00:27:20] Speaker 02:
And so neither did Watts.

[00:27:22] Speaker 00:
Well, I mean, I think Williamson is pretty strong authority in this court.

[00:27:26] Speaker 02:
For a lot of things, but you're taking this phrase and doing something.

[00:27:30] Speaker 02:
I mean, I guess my problem is this feels like something I have never, ever seen and that would have radical effects on making 112-6 an avenue for discussing all kinds of things that it has never been an avenue for.

[00:27:47] Speaker 00:
Well, again, I think this claim, you have to keep in mind, this claim is a processor adapted to do these several things.

[00:27:53] Speaker 00:
It's not just a processor.

[00:27:56] Speaker 00:
And I think that's the distinction, Your Honor.

[00:27:58] Speaker 00:
I'm sorry.

[00:28:01] Speaker 00:
Anything else?

[00:28:03] Speaker 04:
No.

[00:28:03] Speaker 04:
Any more questions?

[00:28:04] Speaker 04:
Thank you, John.

[00:28:05] Speaker 00:
All right.

[00:28:05] Speaker 00:
Thank you very much.

[00:28:17] Speaker 04:
Thank you, Your Honors.

[00:28:25] Speaker 01:
Just two points.

[00:28:26] Speaker 01:
First of all, the Council raised a preemption concern that these claims could cover any process or any storage, and it hits a number of points that we're discussing here.

[00:28:41] Speaker 01:
These claims

[00:28:42] Speaker 01:
really cabin the processor and cabin the storage to performing the claimed invention.

[00:28:50] Speaker 01:
And so there is no broad coverage to these claims.

[00:28:55] Speaker 01:
A processor or a storage would have to be within the apparatus that achieves these functions.

[00:29:02] Speaker 01:
Then my second point would be that the root question we have is do the claims

[00:29:11] Speaker 01:
with reasonable certainty, communicate the scope of the invention.

[00:29:16] Speaker 01:
And we believe they do.

[00:29:17] Speaker 01:
We believe, for example, that Vizio has enough.

[00:29:24] Speaker 01:
They're in the market.

[00:29:26] Speaker 01:
And they know the type of processor that does or does not fulfill the functions that are recited in the claims.

[00:29:35] Speaker 01:
At root, this is a question about claim scope.

[00:29:39] Speaker 01:
And is that claim scope reasonably communicated?

[00:29:43] Speaker 03:
Is it a question of claim scope or whether there is structure defined only by the function that the structure performs?

[00:29:59] Speaker 03:
And putting Williamson aside, Williamson relies on the statute.

[00:30:04] Speaker 03:
And the statute talks about structure

[00:30:08] Speaker 03:
inadequate structure that does not, like a screwdriver, indicate what it performs.

[00:30:18] Speaker 03:
And then you look at the specification to see if it tells how to perform these functions.

[00:30:31] Speaker 01:
And we rely on the NEVRO, the Boston Scientific case,

[00:30:36] Speaker 01:
for this concept that functional language can be limiting.

[00:30:41] Speaker 01:
And it is here.

[00:30:42] Speaker 03:
So sometimes... Does that case deal with the word processor?

[00:30:48] Speaker 01:
It doesn't, Your Honor.

[00:30:49] Speaker 01:
And it's a paragraph two case.

[00:30:52] Speaker 01:
That's another distinction.

[00:30:53] Speaker 01:
But that's really the question before the court.

[00:30:56] Speaker 01:
And it is about claim scope.

[00:30:59] Speaker 01:
And does one of ordinary skill in the art read these claims?

[00:31:04] Speaker 01:
And with reasonable certainty, can he or she tell what kind of processor do I need to fulfill this invention?

[00:31:15] Speaker 01:
We think the recitation of functions is highly specific.

[00:31:22] Speaker 01:
Generic computing equipment, generic processors will do.

[00:31:27] Speaker 01:
That's said in the specification.

[00:31:29] Speaker 01:
And we don't see any Section 112 concerns under either Paragraph 2 or Paragraph 6.

[00:31:37] Speaker 01:
With that, without questions, we just ask that the court reverse and remand.

[00:31:44] Speaker 01:
Thank you.

[00:31:49] Speaker 04:
Thank you.

[00:31:50] Speaker 04:
Thanks to counsel.

[00:31:51] Speaker 04:
The case is taken under submission.