[00:00:03] Speaker 02: Amazon, 2022, 1349. [00:00:06] Speaker 02: Mr. Gerst. [00:00:07] Speaker 02: Thank you, Your Honor. [00:00:14] Speaker 04: Graham Gerst on behalf of Alter One. [00:00:16] Speaker 04: I'd like to begin with construction of cooperating service provider. [00:00:21] Speaker 00: Apparently, neither one of you is interested in the Jane versus Boston scientific problem that exists here, but I am. [00:00:28] Speaker 00: Yes, Your Honor. [00:00:29] Speaker 00: And I don't understand. [00:00:32] Speaker 00: why there's not an infringement. [00:00:33] Speaker 00: Is it because the Amazon system doesn't provide service if the internet goes down because of a nuclear attack? [00:00:42] Speaker 04: Yes, Your Honor. [00:00:43] Speaker 04: So the record is absolutely clear that both at Markman and in our briefing to this court, that the issue with cooperating service provider is that no system can be absolutely provide bandwidth that is always available and always sufficient under all possible circumstances. [00:01:01] Speaker 04: And that's what the caveat that we sought to add in Markman for the definition of not. [00:01:06] Speaker 00: No, that's the sole reason that Amazon doesn't infringe, is that if the internet goes down, it doesn't provide service. [00:01:14] Speaker 00: Correct, Your Honor. [00:01:14] Speaker 01: So can I ask another question? [00:01:16] Speaker 01: Yes, Your Honor. [00:01:18] Speaker 01: Amazon provides sufficient bandwidth even for a worst case scenario. [00:01:24] Speaker 01: And assuming that even if the network, OK, let's say for a minute that for, let's exclude the circumstance where everything goes down, the internet goes down. [00:01:40] Speaker 01: Do they otherwise provide enough bandwidth that there would not be a possible problem, like there's more bandwidth than a customer could possibly need? [00:01:53] Speaker 01: They make promises. [00:01:54] Speaker 01: Sure. [00:01:55] Speaker 04: Because this case proceeded under the court's construction at Markman, which was that cooperative service providers provide blocked bandwidth, that was what the court ruled at Markman originally in the case, meaning reserved bandwidth. [00:02:11] Speaker 04: That is what the expert reports. [00:02:12] Speaker 04: That's what all the infringement analysis proceeded to assume. [00:02:16] Speaker 01: on just that it was reserved. [00:02:18] Speaker 04: That it was reserved bandwidth. [00:02:19] Speaker 04: And so that's what the record supports. [00:02:21] Speaker 00: And Amazon supplies reserved bandwidth. [00:02:24] Speaker 04: Absolutely. [00:02:25] Speaker 01: And there was no consideration of how much or the quality of that reserve. [00:02:30] Speaker 04: There was no consideration of that, Your Honor. [00:02:32] Speaker 04: And again, that was the rules that we were going under, the court's claim construction. [00:02:37] Speaker 04: At summary judgment, the court reverts itself and went back and said, no, actually, it means non-blocking bandwidth, meaning always available, always sufficient under all possible circumstances. [00:02:49] Speaker 04: And I agree, Your Honor. [00:02:50] Speaker 04: It's an absurd interpretation to read it to mean available under all circumstances, including nuclear war. [00:02:59] Speaker 04: And that's what we tried to clarify. [00:03:00] Speaker 00: I think it would have been better off if you'd made that clear in the stipulation. [00:03:05] Speaker 04: Well, Your Honor, so it's clear from the record, even in the Jang case, Your Honor, you said, if you can understand it from the record, and it is clear from the Markman briefing, that that was the issue before the district court. [00:03:18] Speaker 04: It was also clear in our submissions that that is the issue. [00:03:24] Speaker 04: It's rife throughout this issue. [00:03:26] Speaker 04: It's rife throughout the oral argument during Markman. [00:03:28] Speaker 04: So it's part of the record, Your Honor. [00:03:31] Speaker 04: But we don't even need to get there, because a court needs a justification to move away from the strong presumption in terms of plain meaning. [00:03:42] Speaker 04: And cooperating service provider, it's undisputed. [00:03:45] Speaker 04: Cooperating and service provider have plain meanings. [00:03:48] Speaker 04: Amazon's own proposed construction uses the word service provider, so there's no dispute about that term. [00:03:54] Speaker 04: And they don't dispute the plain meaning of cooperating. [00:03:57] Speaker 04: The written description. [00:03:58] Speaker 04: support exists in the specification for service providers. [00:04:05] Speaker 00: So that's not correct your honor. [00:04:11] Speaker 04: So if the plain meaning of cooperating service provider is a service provider that cooperates [00:04:18] Speaker 04: then we never get to the issue of non-blocking bandwidth. [00:04:22] Speaker 04: The court only inserted that definition of non-blocking at the very end of the case. [00:04:27] Speaker 04: And Your Honor, this definition of non-blocking. [00:04:29] Speaker 01: Do you agree with that definition of non-blocking? [00:04:31] Speaker 01: I mean, it's right in your spec. [00:04:32] Speaker 01: You say that that's kind of a crazy meaning, but that's the meaning that is written in the specification expressly. [00:04:39] Speaker 04: Well, Your Honor, that's correct. [00:04:41] Speaker 04: But we know, for example, in the case [00:04:45] Speaker 04: In the Vervy Crane Cams case that we said in our briefing, and also in the Echolab case, when something is obvious from the specification to persons of skill in the art, and this would have been obvious to persons of skill in the art, that the definition was not going to that next step. [00:05:03] Speaker 04: That the definition excluded this caveat while the network is always available and always operational. [00:05:12] Speaker 04: Persons with skill in the art, network engineers would have understood that definition. [00:05:15] Speaker 01: I think you have a stronger argument, personally, that because I don't think, I mean, I'll be honest. [00:05:21] Speaker 01: I think the causes kind of maybe go both ways on that scenario, whether you read that in or not when you're being your own lexicographer. [00:05:29] Speaker 01: But I think you have a stronger argument saying there's no reason to breed blocked bandwidth as meaning non-blocking bandwidth. [00:05:38] Speaker 04: Well, Your Honor, absolutely. [00:05:39] Speaker 04: But first, there's not a single case that Amazon has cited that suggests that you should not read a caveat like this into the definition. [00:05:50] Speaker 04: They point to a different case, the Chef America case, but that wasn't construing a definition. [00:05:56] Speaker 04: But let me go to your point. [00:05:57] Speaker 04: And again, you're sort of assuming that we don't need to go with plain meaning here. [00:06:00] Speaker 04: And there is no justification. [00:06:02] Speaker 04: There's no disavowal. [00:06:03] Speaker 04: There's no special definition. [00:06:05] Speaker 04: And this non-blocking bandwidth, sure. [00:06:07] Speaker 01: Can I ask you? [00:06:08] Speaker 01: You talked about disabels, so I have some questions to ask you. [00:06:11] Speaker 01: In column six of your specification, you say all species and the genus of the invention will solve the bandwidth bottleneck of the plague-prior attempts. [00:06:21] Speaker 01: And you go on and say that how they're going to do that is by having, among other things, the everyone network [00:06:28] Speaker 01: which all species has, is a data path between other participating ISX providers, a data path which is guaranteed to have sufficient bandwidth to be able to handle the worst case bandwidth consumption of the customer. [00:06:43] Speaker 01: Why isn't it improper to at least understand that is required by your claim? [00:06:49] Speaker 04: So, Your Honor, two things. [00:06:51] Speaker 04: One, what's being referred to there about sufficient bandwidth is different than non-blocking bandwidth, the definition of non-blocking bandwidth, OK? [00:06:58] Speaker 01: Well, even if that's fine. [00:07:00] Speaker 01: Let's say I agree with you. [00:07:02] Speaker 04: Sure. [00:07:02] Speaker 04: But this reference is referring to what occurs between ISX providers. [00:07:07] Speaker 04: That's what it says. [00:07:07] Speaker 04: And that's also the one place in the whole specification where it talks about non-blocking bandwidth, it does so in the context of ISX providers. [00:07:16] Speaker 00: ISX providers are a- Look, this has no bearing on the outcome here, because your position is [00:07:24] Speaker 00: that even if we take the definition from the specification, always available adequate bandwidth, that Amazon satisfies that, right? [00:07:35] Speaker 04: So if you take the definition of non-blocking bandwidth from the definition of the specification, and we're just talking about non-blocking bandwidth, [00:07:46] Speaker 04: No, because a person with skill in the art would understand that there's this caveat that we need to add while the network is operational. [00:07:57] Speaker 00: The question is, what do we have to decide here? [00:08:00] Speaker 00: Yes. [00:08:02] Speaker 00: You seem to be arguing that this bandwidth is always available and is adequate. [00:08:12] Speaker 00: Under your interpretation of that language, that Amazon satisfies that. [00:08:18] Speaker 00: There doesn't seem to be a factual dispute there. [00:08:21] Speaker 00: where this other claim construction has any significance. [00:08:26] Speaker 04: The claim construction of which, of cooperating service provider? [00:08:29] Speaker 04: Yeah. [00:08:29] Speaker 04: No, actually, it's just the opposite, Your Honor. [00:08:32] Speaker 04: So we think that there is infringement under the court's original construction of a service provider that agrees to provide blocks. [00:08:41] Speaker 00: Why does it matter? [00:08:41] Speaker 00: Why does it matter? [00:08:44] Speaker 00: adopt your construction non-blocking bandwidth. [00:08:47] Speaker 00: What does it matter whether cooperating service provider is a provider that cooperates or a provider who provides adequate bandwidth? [00:08:57] Speaker 04: Provides reserved bandwidth. [00:08:59] Speaker 04: You mean your own? [00:08:59] Speaker 04: Well, in your view, Amazon does that. [00:09:03] Speaker 04: If it is a service provider that cooperates, yes, there is infringement. [00:09:07] Speaker 04: If it is a service provider that provides blocked bandwidth as the specification, I'm sorry, as the file history talks about, then yes, there is infringement. [00:09:15] Speaker 04: But if it is a service provider that provides non-blocking bandwidth as defined in the specification with no alteration, then there is no infringement. [00:09:25] Speaker 00: Well, that seems to be the one issue that's before us. [00:09:27] Speaker 00: The other, you know, in other words, there's no infringement because they don't provide service when the internet goes down, okay? [00:09:34] Speaker 00: That's a, that's a claim construction issue that affects the result here. [00:09:37] Speaker 00: This other question of whether a cooperating service provider has to provide non-blocking bandwidth or not seems to have no impact on the outcome because [00:09:47] Speaker 00: You say that Amazon does provide adequate bandwidth under all circumstances. [00:09:54] Speaker 00: Where did you hear this operation? [00:09:55] Speaker 04: I didn't say that, Your Honor. [00:09:56] Speaker 04: That wasn't the issue that discovery was about. [00:09:58] Speaker 04: That wasn't the issue that the experts opined on, whether or not there is sufficient bandwidth. [00:10:04] Speaker 04: The experts sought to determine, and their expert reports dueled over whether there was reserved bandwidth. [00:10:11] Speaker 02: What do you mean? [00:10:12] Speaker 04: So once again, the court's construction that governed all expert discovery was, for cooperating service providers, do they provide blocked, meaning reserved bandwidth? [00:10:24] Speaker 04: That's what all the evidence is about. [00:10:27] Speaker 00: And you say they do provide reserved bandwidth. [00:10:28] Speaker 04: They provide reserved bandwidth. [00:10:30] Speaker 04: Yes, Your Honor, we do. [00:10:31] Speaker 04: But then the court reversed itself into a situation where it said, well, it's service providers that provide non-blocking bandwidth. [00:10:39] Speaker 04: and non-blocking bandwidth absolutely, even in the event of nuclear war. [00:10:44] Speaker 04: And so therefore, under that construction, there is no invention. [00:10:47] Speaker 01: Mr. Gerst, there's an additional problem here. [00:10:49] Speaker 01: And that's that none of the briefs tell us what claims are at issue. [00:10:53] Speaker 01: We've got two patents at issue on appeal. [00:10:55] Speaker 01: I think it's the 478 and the 471. [00:10:58] Speaker 01: Am I right about that? [00:11:00] Speaker 04: The 478 and the 471, yes. [00:11:02] Speaker 01: Each claims are at issue. [00:11:04] Speaker 01: So Your Honor, if you look. [00:11:06] Speaker 01: Because the 478 is the one that talks about property and service provider. [00:11:10] Speaker 01: The 471 has some non-blocking bandwidth language in it. [00:11:15] Speaker 01: I need to know, you need to know, which claims are at issue. [00:11:18] Speaker 04: Yes, Your Honor. [00:11:18] Speaker 04: And that's at Appendix 3 in the stipulation of non-infringement, which lists the claims remaining as the summary judgment for the 478 patent. [00:11:28] Speaker 04: And so it lists those, the claims that were at issue [00:11:33] Speaker 04: at that point in time. [00:11:36] Speaker 04: With respect to the 471, Your Honor, I can see that the claims of the 471 are not listed here in the stipulation of non-infringement, as far as I can see it. [00:11:58] Speaker 04: But certainly those claims are an appeal. [00:12:00] Speaker 04: Pardon me? [00:12:01] Speaker 01: What are the claims on appeal? [00:12:02] Speaker 04: The claims on appeal are claims 1, 4, 6, 14, 18, 19, 25, 28, 51, 52, 55. [00:12:08] Speaker 01: So the ones that it says, where is the claims remaining as of the summary judgment hearing? [00:12:12] Speaker 01: And that is only the 478 path. [00:12:15] Speaker 01: This is your stipulation. [00:12:17] Speaker 04: So our stipulation refers to? [00:12:20] Speaker 04: Claims it refers to claims specifically of the four seven eight patent. [00:12:24] Speaker 00: It does not separately list the claims of the force Then if the claims with respect to the four seven one or whatever it is aren't resolved by the stipulation that we don't have a final judgment Your honor if you want to focus on the four seven eight patent Do we have a final judgment? [00:12:44] Speaker 04: Let's see what it says [00:12:50] Speaker 04: It does say that it refers to the 471 patent and the construction there. [00:12:56] Speaker 04: I'm just looking for the reference to the 471 here. [00:13:01] Speaker 04: So in appendix 4.1, it says, Amazon does not infringe this. [00:13:06] Speaker 04: It does not infringe the 478 and 471 patents. [00:13:09] Speaker 04: And then paragraph 2. [00:13:12] Speaker 04: The parties stipulate to the entry of judgment of non-infringement of the 478 and 471 patents. [00:13:16] Speaker 04: So appendix three and four. [00:13:18] Speaker 04: It doesn't separately list the claims. [00:13:21] Speaker 04: But on remand, it was clear what claims were still pending. [00:13:24] Speaker 04: But again, Your Honors, if you want to focus just on the 478 patent, it's really those claims that are most critical here. [00:13:30] Speaker 04: Because the word routing, for example, I'm sorry, go ahead. [00:13:34] Speaker 01: You say we want to just rely on that. [00:13:36] Speaker 01: Are you now giving up the 471 patent then? [00:13:39] Speaker 04: I'm not giving up the 471 patent. [00:13:41] Speaker 01: I think that- Then you need to tell us which claims are at issue. [00:13:46] Speaker 04: Well, then I guess, Your Honor, I've got to give up the 471 patent for now because, yeah, I don't have that listed here separately. [00:13:52] Speaker 01: And if you want, when you sit down, you could develop that list. [00:13:55] Speaker 04: OK, sure. [00:13:56] Speaker 04: We will try to do that. [00:13:57] Speaker 02: And before you sit down, these patents will expire also. [00:14:02] Speaker 04: These patents are expired. [00:14:03] Speaker 04: Yes, Your Honor. [00:14:03] Speaker 02: Any other litigation going on? [00:14:05] Speaker 04: No other litigation going on. [00:14:07] Speaker 02: Thank you. [00:14:12] Speaker 02: Mr. Haddon. [00:14:15] Speaker 03: Good morning. [00:14:15] Speaker 03: May I please record? [00:14:16] Speaker 03: Dave Haddon for Amazon. [00:14:18] Speaker 03: Let me try to straighten out a little of what you just heard, because I don't think it accurately. [00:14:23] Speaker 00: Can we release the basis for the non-infringement finding that Amazon doesn't provide service when the internet is down? [00:14:30] Speaker 03: That is not the basis. [00:14:31] Speaker 03: Well, how are we supposed to know what the basis is? [00:14:35] Speaker 03: Yes, Your Honor. [00:14:36] Speaker 03: Good question. [00:14:40] Speaker 03: Issue in the case that got resolved as summary judgment was whether block bandwidth, which is a term that only appears in the file wrapper. [00:14:52] Speaker 03: is the same as non-blocking bandwidth, which is the definition of the invention, the specification. [00:14:59] Speaker 00: Please answer my question. [00:15:00] Speaker 00: If that's not the basis, what is the basis? [00:15:03] Speaker 03: So the basis is that... What is it that the Amazon's product doesn't... Amazon's product does not provide sufficient bandwidth to meet everybody's need, whether the internet is up or down. [00:15:16] Speaker 03: That was the issue. [00:15:18] Speaker 01: But your adversary says that was never the subject of discovery. [00:15:23] Speaker 01: You could assert that. [00:15:24] Speaker 03: That's the part I wanted to correct, Your Honor. [00:15:27] Speaker 03: So that is the part I wanted to correct, because that is not the case. [00:15:32] Speaker 03: So what happened was a claim construction, Judge Norika said, cooperating service provider, I'm going to construe it based on the file wrapper, because it's not a term used in this spec. [00:15:45] Speaker 03: And she says, I will [00:15:47] Speaker 03: construed as it says in the file wrapper, someone that provides blocked bandwidth. [00:15:52] Speaker 03: She says, if you don't know what blocked bandwidth is, come back and we'll resolve that at summary judgment. [00:15:57] Speaker 03: So during expert discovery, the parties had two options. [00:16:03] Speaker 03: Blocked bandwidth meant non-blocking bandwidth, that is bandwidth that would always be available and always sufficient, which is the position that Amazon took throughout this case. [00:16:14] Speaker 00: How do we know? [00:16:16] Speaker 00: that the stipulation rests on that term and the fact that Amazon doesn't have that kind of bandwidth available to the company. [00:16:27] Speaker 03: The evidence in the record, Your Honor, is from our summary judgment briefing on non-imprisonment and the expert reports that are in the record. [00:16:37] Speaker 01: I don't know if that's the case. [00:16:39] Speaker 01: I mean, one of the problems I'm having is a stipulation between the parties. [00:16:44] Speaker 01: The parties should have some sort of meeting in the mind on why it is that there's not infringement. [00:16:48] Speaker 01: Maybe even the patent owner who's stipulating should have the best say on why there's no infringement. [00:16:53] Speaker 01: But you've got nothing here. [00:16:55] Speaker 03: Yeah, Your Honor, and this is an issue. [00:16:59] Speaker 03: Their expert put in no opinion in his report, his infringement report, under the alternative construction of [00:17:08] Speaker 03: cooperating service provider. [00:17:09] Speaker 03: That is, someone that provides bandwidth that is always sufficient and always available. [00:17:14] Speaker 00: You have to create a summary judgment motion that the judgment doesn't rest on. [00:17:21] Speaker 00: You've entered into a stipulation which, in my mind, is totally unclear as to what's going on here and why there is non-imprisonment. [00:17:30] Speaker 00: And you're asking us to parse the record here to provide a ground for non-imprisonment that the parties have not agreed on. [00:17:38] Speaker 00: And I don't see any way out of this other than to send this case back to have a better stipulation or a better determination of why there's non-imprisonment here and what claim construction leads to that result. [00:17:54] Speaker 03: I understand your concern, Your Honor. [00:17:56] Speaker 03: The issue is the court resolved their claim construction summary judgment motion. [00:18:02] Speaker 03: We had a pending written description motion, which is [00:18:06] Speaker 03: If non-blocking bandwidth is different than blocked bandwidth, we have no written description. [00:18:12] Speaker 03: The court didn't get to that motion or our summary judgment motion non-infringement, because Judge Norica has this sort of sudden death procedure. [00:18:20] Speaker 03: Once you lose, you get no more. [00:18:22] Speaker 03: It was clear, and it's in the transcript that is in the appendix, that Altuan had no expert opinion. [00:18:32] Speaker 03: applying the construction that requires bandwidth that's always sufficient and always available. [00:18:37] Speaker 00: That's a summary judgment issue. [00:18:39] Speaker 03: I understand, Your Honor. [00:18:40] Speaker 03: And the court said, OK, I'm going to give you another opportunity to put in a new expert report that addresses this construction, even though you knew it was in play and you should have addressed it. [00:18:53] Speaker 03: The alternative, Judge Norika gave alter one, was to stipulate a non-infringement. [00:18:59] Speaker 03: After some time, they came back and said, OK, we're going to stipulate a non-infringement. [00:19:03] Speaker 03: There was no suggestion that the non-infringer was based on the internet being up or down. [00:19:10] Speaker 03: The issue was they had no theory where Amazon provides all the bandwidth a customer could want. [00:19:18] Speaker 01: Well, you just said it was they had no evidence to show always sufficient to always available. [00:19:28] Speaker 01: I understand you're saying maybe they could have provided, there could have been some more of a factual dispute about the amount of bandwidth. [00:19:35] Speaker 01: But that claim construction was not the claim construction that was at play, right? [00:19:40] Speaker 01: The claim construction at play was always sufficient, always available. [00:19:44] Speaker 03: That was the construction. [00:19:45] Speaker 01: Yes, Your Honor. [00:19:46] Speaker 01: And so why wouldn't it be that the non-infringement is based on Amazon not having? [00:19:51] Speaker 03: Sure. [00:19:52] Speaker 03: So the issue, and it's actually, I can find something in the record that described this, [00:19:59] Speaker 03: It's actually Appendix 1088. [00:20:03] Speaker 03: It's a chart, the infringement chart from all to one expert. [00:20:07] Speaker 01: I'm sorry, 1088? [00:20:09] Speaker 03: 1088. [00:20:09] Speaker 03: Okay, thank you. [00:20:10] Speaker 03: And the, I mean it's useful to understand what was accused here. [00:20:14] Speaker 03: So the service that is accused is something called Direct Connect. [00:20:18] Speaker 03: And it is a way actually for customers to get data into AWS without using the internet at all. [00:20:28] Speaker 03: It is just a physical cable that goes from an Amazon server in a data center to a customer server in the same data center. [00:20:39] Speaker 03: And that is what they're expert pointed to. [00:20:42] Speaker 03: And that connection can be purchased at different port speeds. [00:20:52] Speaker 03: And you pay for a port speed, you get that port speed. [00:20:56] Speaker 03: You don't get all the bandwidth you could want. [00:20:58] Speaker 03: You don't get any guarantee of any bandwidth within Amazon's network. [00:21:02] Speaker 03: And so their experts said, well, that meets the definition of reserve bandwidth, because it's got a fixed port speed. [00:21:10] Speaker 03: You never find that it satisfied all of the customer's bandwidth requirements, whether the internet was up or down. [00:21:19] Speaker 03: It had nothing to do with whether the internet was up or down, because this theory doesn't rely on the internet at all. [00:21:26] Speaker 03: The only issue was whether reserve, that is, you get a one gigabyte port, is that sufficient to meet the claim requirement? [00:21:35] Speaker 03: And what the support said, no, reserve is not the construction. [00:21:40] Speaker 03: The construction is the bandwidth that will satisfy the customer. [00:21:45] Speaker 00: You have to parse the record here and make a determination of what the parties should have agreed to, even though the actual agreement doesn't reflect this. [00:21:53] Speaker 00: I mean, that seems to me not appropriate. [00:21:56] Speaker 03: Well, I think I understand the concern. [00:21:59] Speaker 03: We were in this procedural situation where we had an option to either they would come up with a theory or not. [00:22:09] Speaker 01: But the lesson is to maybe identify in the stipulation why it is that there's a stipulation, right? [00:22:15] Speaker 01: I mean, that is what other [00:22:17] Speaker 01: parties do in other cases. [00:22:19] Speaker 01: And that's what Jane counsels as well, that you need to provide context for the courts. [00:22:23] Speaker 01: The court can resolve the issue before it. [00:22:25] Speaker 01: And we've got a situation where there's parties have two different reasons for why this stipulation occurred. [00:22:30] Speaker 01: One of them says that it's because Amazon doesn't satisfy a very strict definition of non-blocking [00:22:40] Speaker 01: bandwidth. [00:22:40] Speaker 01: And the other one says, no, it's simply because even if the internet was running, Amazon's service doesn't always provide enough bandwidth even in the worst case scenario. [00:22:52] Speaker 01: That makes it hard. [00:22:55] Speaker 03: Understood, Your Honor. [00:22:56] Speaker 03: But it seems like the court's construction of non-blocking bandwidth has to be right. [00:23:01] Speaker 03: It is the definition in this spec. [00:23:03] Speaker 03: That's the case. [00:23:04] Speaker 03: And clearly, a cooperating service provider cannot be any service provider that works with somebody else. [00:23:11] Speaker 03: That's not the invention in this case. [00:23:13] Speaker 01: Right, right. [00:23:13] Speaker 01: But it also seems a little odd to take a very narrowly defined term, non-blocking bandwidth, and say equate that with blocked bandwidth in the prosecution history without something else allowing us to just equate those terms. [00:23:29] Speaker 01: There's no evidence allowing us to [00:23:33] Speaker 01: intrinsic evidence equating those terms that would make you feel comfortable equating them. [00:23:38] Speaker 03: Understood. [00:23:38] Speaker 03: But block bandwidth is, agree, not a term of art. [00:23:42] Speaker 03: It was a term that was introduced in the prosecution history 10 years after the spec in the description of these cooperating service providers. [00:23:50] Speaker 01: I know. [00:23:51] Speaker 01: And your adversary says, no, it means, like, I blocked these seats for you. [00:23:54] Speaker 01: Right? [00:23:55] Speaker 01: I'm sorry. [00:23:55] Speaker 01: They say it means something like, I blocked these seats for you. [00:23:59] Speaker 03: Yeah, but that's not described in the spec either, right? [00:24:02] Speaker 01: The spec has this. [00:24:03] Speaker 01: I understand, but the spec doesn't use non-blocking. [00:24:06] Speaker 01: That very narrow definition of non-blocking is only used once. [00:24:09] Speaker 01: In many other places, it says high bandwidth, low, what is it, low, I don't know. [00:24:17] Speaker 01: Yeah, low hop count. [00:24:18] Speaker 01: And in other places, it says there has to be a promise that you're going to provide sufficient bandwidth [00:24:24] Speaker 01: even for the worst-case scenario, right? [00:24:27] Speaker 03: Right, but it defines participating ISPs and ISXs as those that will promise to provide sufficient bandwidth to meet the worst-case customer requirements. [00:24:41] Speaker 01: Why is that the same as the definition of non-blocking bandwidth? [00:24:51] Speaker 03: If you guarantee bandwidth that will always meet the worst case requirements of the customer, that's the equivalent of bandwidth that will always be available and sufficient. [00:25:03] Speaker 03: It's the same thing. [00:25:05] Speaker 03: It's all the bandwidth the customer could want to eat whenever they need it. [00:25:08] Speaker 01: So I think I gather what you're saying right now is that there isn't a jang problem if we agree with the district court's constructions. [00:25:15] Speaker 01: Is that what you're saying? [00:25:16] Speaker 01: Because at a minimum, Amazon, everybody agrees that Amazon doesn't continue to work if the internet fails. [00:25:23] Speaker 03: Sure. [00:25:24] Speaker 03: So there's two points, Jay Stoll. [00:25:27] Speaker 03: One is Amazon does not provide all the bandwidth you [00:25:30] Speaker 03: can eat, right? [00:25:32] Speaker 03: And that would be required under the course of construction. [00:25:35] Speaker 01: I think that's an issue we wouldn't be able to address under DREAMS. [00:25:37] Speaker 03: OK. [00:25:37] Speaker 03: So if you don't address that, then if you agree with the definition of non-blocking bandwidth in the specification, which says it's always available and always sufficient, then they have stipulated that Amazon can't infringe. [00:25:52] Speaker 03: And so it's game over. [00:25:54] Speaker 03: Now, there's no reason to modify that, this force majeure notion. [00:25:59] Speaker 03: I mean, what does it mean for the network not to be operational? [00:26:02] Speaker 03: Routers go down all the time. [00:26:04] Speaker 03: You route around them. [00:26:05] Speaker 00: They don't agree in this court that they lose under that construction. [00:26:13] Speaker 03: No, I think they do agree. [00:26:14] Speaker 03: That's in the stipulation. [00:26:16] Speaker 03: They agree that under the court's construction. [00:26:19] Speaker 00: The stipulation is totally unclear as to what's being agreed to. [00:26:21] Speaker 03: Well, the stipulation does say that Amazon does not [00:26:29] Speaker 02: Right. [00:26:30] Speaker 02: It does not infringe. [00:26:32] Speaker 03: It's paragraph one, under the Court's construction, cooperating service provider, non-blocking bandwidth. [00:26:36] Speaker 00: It doesn't say why is the problem. [00:26:38] Speaker 00: I'm sorry, Your Honor. [00:26:39] Speaker 00: It doesn't say why Amazon doesn't infringe. [00:26:42] Speaker 00: You have different views about why Amazon doesn't infringe. [00:26:47] Speaker 03: Understood, Your Honor. [00:26:49] Speaker 00: So the stipulation doesn't help us. [00:26:52] Speaker 03: It doesn't help you in understanding why. [00:26:54] Speaker 03: But if you affirm the district court's constructions, then [00:26:58] Speaker 03: The stipulation is mine now. [00:27:00] Speaker 01: Do you agree that Amazon doesn't have bandwidth that will always be available and will always be sufficient, that that is one basis for the stipulation? [00:27:12] Speaker 03: Yes. [00:27:15] Speaker 03: I'm sorry? [00:27:16] Speaker 01: I was asking if you agree that that is at least one basis for the stipulation. [00:27:21] Speaker 03: Yes, Your Honor. [00:27:22] Speaker 03: If there's other issues I'm happy to address, I want to make clear that the suggestion in the beginning that the court construed originally blocked bandwidth as reserved bandwidth and the parties operated under that construction is incorrect. [00:27:42] Speaker 03: The court said, I'm not going to tell you what black bandwidth is at this point. [00:27:46] Speaker 03: There were competing interpretations, and our expert addressed both. [00:27:51] Speaker 03: Their expert didn't address the one the court ultimately adopted. [00:27:54] Speaker 03: They got another opportunity to do that. [00:27:56] Speaker 03: They chose not to do it. [00:27:58] Speaker 03: Instead, they entered this stipulation. [00:28:00] Speaker 03: So what we know is, based on the court's construction, Amazon doesn't infringe under the stipulation. [00:28:09] Speaker 02: Thank you, counsel. [00:28:10] Speaker 02: Thank you, Your Honor. [00:28:11] Speaker 02: We'll give you three minutes for a huddle. [00:28:14] Speaker 01: Mr. Hurst, I want to ask you one question right away. [00:28:17] Speaker 01: Yes, Your Honor. [00:28:19] Speaker 01: And just for clarification. [00:28:20] Speaker 01: Can you explain, in the context of the stipulation, why there's not infringement? [00:28:25] Speaker 01: Because, the reason why I ask is because I thought you were agreeing that Amazon doesn't operate even if the internet fails. [00:28:33] Speaker 01: And therefore, Amazon does not have non-blocking bandwidth as that term is defined by the district workflow. [00:28:41] Speaker 04: That's exactly right, Your Honor. [00:28:43] Speaker 04: Because the court at summer judgment required non-blocking bandwidth. [00:28:47] Speaker 04: And the definition of the court for non-blocking bandwidth is, it's always available, always sufficient, even in the event of nuclear war. [00:28:53] Speaker 04: That is not true for Amazon. [00:28:54] Speaker 04: That is why there is no infringement. [00:28:56] Speaker 04: If you look at appendix 431, in the Markman briefing, it specifies this. [00:29:01] Speaker 04: I can read it to you, but I have limited time. [00:29:03] Speaker 04: I just urge you to look at paragraph 431. [00:29:06] Speaker 04: Zhang said, you can look at the record. [00:29:07] Speaker 04: to try and determine context. [00:29:09] Speaker 04: And it's clear, again, from Appendix 431, which is the party's Markman briefing. [00:29:14] Speaker 01: And that same rationale applies also to the core operating service provider as defined by the district court to require someone who provides bandwidth that will always be available and will always be sufficient, right? [00:29:27] Speaker 04: That's correct, yes. [00:29:30] Speaker 04: And just one other thing about Jang. [00:29:31] Speaker 04: Jang was a special, unique case where the parties agreed that certain terms [00:29:36] Speaker 04: were irrelevant for infringement. [00:29:37] Speaker 04: So the court was already remanding to find which ones that was true for. [00:29:41] Speaker 04: And then it doubled that remand to say, while you're doing it, please provide the context. [00:29:46] Speaker 04: But Chang cited three different cases, which all went forward, despite lack of context, with evaluating stipulations of non-infringement. [00:29:54] Speaker 04: Those were the Lava Trading, Wilson Sporting Goodgood's case, and Massachusetts Institute of Technology's case. [00:30:00] Speaker 04: If you follow those three cases are analogous to our situation if you're unsatisfied with the specificity actually in the stipulation. [00:30:07] Speaker 04: But again, Jen says you can look at the record. [00:30:09] Speaker 04: Look at appendix 431. [00:30:11] Speaker 04: I want to point to one other thing. [00:30:13] Speaker 00: Is there a position that Amazon provides bandwidth that's always put aside when the internet is down? [00:30:24] Speaker 00: Do you urge that Amazon does provide [00:30:29] Speaker 00: sufficient bandwidth that's always available, if we consider the stipulation to define non-blocking bandwidth, that it satisfies that limitation. [00:30:41] Speaker 04: If I understood your question, you're asking me, does Amazon provide non-blocking bandwidth, as the court has defined it, with no caveat? [00:30:49] Speaker 04: No, it doesn't. [00:30:50] Speaker 04: Because, and again, according to appendix 431, [00:30:54] Speaker 04: We say there's no system that has ever existed. [00:30:57] Speaker 00: No, no, no, no. [00:30:58] Speaker 00: You're misunderstanding me. [00:31:00] Speaker 00: I'm putting that aside. [00:31:01] Speaker 00: I'm saying let's adopt your construction of non-blocking bandwidth, which doesn't have that limitation. [00:31:09] Speaker 00: It only requires that this be available when the internet is operating. [00:31:13] Speaker 00: Is your view that they infringe under that clamped instruction? [00:31:18] Speaker 04: Yes, Your Honor. [00:31:22] Speaker 04: Can I just say just one final thought? [00:31:25] Speaker 04: One final thought. [00:31:26] Speaker 04: Council for Amazon said that the district court left the issue open about what blocked bandwidth meant. [00:31:33] Speaker 04: Your Honor, at Markman, as we point out in our brief, Council for Amazon repeatedly agreed and explained to the district court that blocked bandwidth meant reserved bandwidth. [00:31:42] Speaker 04: That's what governed this entire case. [00:31:45] Speaker 02: Thank you, counsel. [00:31:46] Speaker 02: I think we've run out of bandwidth. [00:31:48] Speaker 02: Thank you. [00:31:49] Speaker 02: The case is submitted.