[00:00:00] Speaker 09:
All right.

[00:00:00] Speaker 09:
Our next case for argument is 22-1756 Chewie versus IBM.

[00:00:03] Speaker 09:
People have to help me with your name.

[00:00:08] Speaker 00:
Mr. Usayev, your honor.

[00:00:09] Speaker 09:
Mr. Usayev, please proceed.

[00:00:12] Speaker 00:
Thank you, your honor.

[00:00:18] Speaker 00:
Your honor, I'll begin with the claim construction issue.

[00:00:21] Speaker 00:
May it please the court.

[00:00:22] Speaker 00:
The 849 patent concerns how to improve

[00:00:26] Speaker 00:
interactive applications and make them more efficient by breaking up the screen display in front of the user and selectively retrieving

[00:00:34] Speaker 00:
supplying and storing.

[00:00:35] Speaker 09:
Okay, so now I'm just going to ask a completely irrelevant question.

[00:00:38] Speaker 09:
I love the name Chewy.

[00:00:40] Speaker 09:
Like, why is your company named Chewy?

[00:00:42] Speaker 09:
Is it because you're breaking stuff up?

[00:00:43] Speaker 09:
I mean, where's Chewy come from?

[00:00:45] Speaker 00:
We actually represent IBM, Your Honor.

[00:00:49] Speaker 08:
Oh, you're old.

[00:00:49] Speaker 08:
You'll tell me later.

[00:00:51] Speaker 08:
The reason why it's confusing is it's a declaratory judgment action.

[00:00:55] Speaker 08:
Go ahead.

[00:00:56] Speaker 00:
Go right ahead.

[00:00:57] Speaker 09:
I know why you're named IBM, in case you're confused.

[00:01:01] Speaker 00:
So that's what the patent is really about.

[00:01:04] Speaker 00:
It's about selectively sending, retrieving, and storing advertising objects.

[00:01:09] Speaker 00:
And claim one is directed to one aspect of that idea, and it recites selectively storing advertising objects.

[00:01:19] Speaker 00:
That's what the last element of claim one recites.

[00:01:22] Speaker 00:
It's about storing.

[00:01:24] Speaker 00:
Yet the district court took the word selectively as it modifies storing,

[00:01:28] Speaker 00:
and replace that with the concept of prefection, which is defined as retrieving and anticipation of display.

[00:01:43] Speaker 07:
It's really important that you be able to not resend down some advertisements.

[00:01:51] Speaker 07:
And the reason why you want to do that is so that your advertisements and your content aren't being sent at the same time creating a bandwidth problem.

[00:01:59] Speaker 07:
I realize bandwidth has probably changed since the time you wrote your patent application.

[00:02:03] Speaker 07:
But your patent application seems to make it sound like that's a really important aspect.

[00:02:08] Speaker 00:
So what the patent says is there's multiple ways to improve bandwidth.

[00:02:12] Speaker 00:
and I will direct your honor to appendix 217.

[00:02:15] Speaker 00:
And if we look at column 6, 28 to 33, what the patent says is further, the time required to display a page is minimized when reference objects are stored locally at reception system 400, which storage is determined by prior usage meeting certain criteria or have been prefetched

[00:02:42] Speaker 00:
or in fact are already used in the current page.

[00:02:44] Speaker 09:
Yeah, but that's just objects.

[00:02:46] Speaker 09:
So the one thing that bothered me about this argument you're making is that this patent talks about objects, which are lots of different kinds of objects, but then it talks about advertising objects separately.

[00:02:56] Speaker 09:
So there is no doubt that this patent creates a scenario in which objects in general do not have to be prefetched, but your problem

[00:03:04] Speaker 09:
is does the patent, when it talks about advertising objects, require prefetching?

[00:03:10] Speaker 09:
So it doesn't help if you point me to general object language, because there are lots of different kinds of objects this patent covers.

[00:03:15] Speaker 09:
What you have to do is convince me that the advertising objects are not required to be prefetched, because absolutely everywhere advertising objects are discussed, and they are discussed many times here, it's in conjunction with the words prefetched.

[00:03:28] Speaker 09:
And so that's the part that's kind of

[00:03:30] Speaker 09:
hanging me up on your case.

[00:03:31] Speaker 00:
Yes, so Your Honor, I would point you to Appendix 218 in Column 8, and if we look at Lines 7 to 11, it's talking about retrieving on demand with respect to advertising objects.

[00:03:45] Speaker 00:
What it says is, objects are used to package... Column 8, I'm sorry, what line?

[00:03:50] Speaker 00:
Oh, 7 to 11, Your Honor.

[00:03:52] Speaker 00:
Thank you.

[00:03:53] Speaker 00:
Objects are used to package presentation data and program instructions required to support the partitioned applications and advertising presented at reception system 400.

[00:04:04] Speaker 00:
Objects are distributed on demand throughout interactive network 10.

[00:04:09] Speaker 00:
So what this is saying is on demand, which everyone agrees is not prefetching.

[00:04:15] Speaker 00:
On demand is you have a demand for something, that's when you get it.

[00:04:19] Speaker 00:
Prefetching is you don't have a demand for it, but you're going to get it before it's displayed.

[00:04:24] Speaker 00:
And what this is saying is objects are distributed on demand, both for applications

[00:04:29] Speaker 00:
and for advertising.

[00:04:31] Speaker 00:
And that's a specific example that's not addressed.

[00:04:33] Speaker 00:
So we brought this up in our opening brief and we said this is why the district court got it wrong when it assumed that on-demand only applied to objects generally.

[00:04:44] Speaker 07:
That sentence is not as clear to me as you suggested it is.

[00:04:47] Speaker 07:
It says objects that support advertising is what I see it referring to.

[00:04:56] Speaker 00:
Yes, I think objects that support advertising are advertising objects, Your Honor.

[00:05:02] Speaker 00:
And think about it this way.

[00:05:04] Speaker 00:
How strange would it be if retrieving objects on demand was different than retrieving advertising objects on demand?

[00:05:12] Speaker 00:
Advertising objects are objects.

[00:05:15] Speaker 07:
But except column two of your patent and other places where you talk about how important it is

[00:05:22] Speaker 07:
that you provide a method for presenting advertising which minimizes the potential for interference, or how you talk about how conventional

[00:05:30] Speaker 07:
If advertising were provided in a conventional manner, for example, by providing the advertising as additional data to be supplied and presented at the user sites, the effort would compete with supplying and presentation of service application data and have the undesirable effect of diminishing service response time.

[00:05:47] Speaker 07:
That's talking about sending advertising on demand and saying it's problematic.

[00:05:53] Speaker 07:
And now you want to interpret your specification to disclose presenting advertising on demand.

[00:05:59] Speaker 00:
Your Honor, I don't think we can look at the benefits of the invention and assume it has to come from pre-fetching.

[00:06:05] Speaker 00:
I just read the citation from column 6, 28 to 33.

[00:06:11] Speaker 00:
where it talks about this is one way to minimize interference is prefetching.

[00:06:15] Speaker 00:
It's one way.

[00:06:18] Speaker 00:
So it says, for example, when you store objects locally.

[00:06:23] Speaker 00:
So let's take a step back and talk about this invention.

[00:06:26] Speaker 00:
What it was about is before

[00:06:27] Speaker 00:
You had the dumb terminal approach.

[00:06:30] Speaker 00:
You sent the entire display back and forth, very, very slow.

[00:06:34] Speaker 00:
Instead, if you selectively send objects, then you send just what you're needed, and you can store things locally.

[00:06:40] Speaker 00:
That's what it's saying here in column six, is it says when objects are stored locally, then the next time you need them, you don't have to go out and get them.

[00:06:48] Speaker 00:
But that doesn't mean they can't be requested or retrieved on demand.

[00:06:52] Speaker 00:
It just means you hang on to them for later.

[00:06:54] Speaker 09:
That's what it's saying.

[00:06:56] Speaker 09:
your argument is really column three, right?

[00:06:59] Speaker 09:
And column three is called summary of the invention.

[00:07:02] Speaker 09:
So this is not a preferred embodiment.

[00:07:04] Speaker 09:
It's the summary of the invention.

[00:07:06] Speaker 09:
And at column three, starting at line five-ish, you say briefly, the method for presenting advertising in accordance with this invention.

[00:07:14] Speaker 09:
That's like magic language.

[00:07:17] Speaker 09:
You know, the present invention is in accordance with this invention.

[00:07:21] Speaker 09:
That's language that binds you, whether you like it or not.

[00:07:24] Speaker 09:
And then it goes through that paragraph and explains that advertising is prefetched.

[00:07:28] Speaker 09:
And so that is what bothers me the most is in the summary of your invention that Judge Solt pointed out quite rightly, the objects of your invention.

[00:07:36] Speaker 09:
and how you're basically showing the disadvantages of not prefetching advertising in the objects of your invention.

[00:07:44] Speaker 09:
Now, in the summary of your invention, you use this invention is language in the context of advertising being prefetched.

[00:07:50] Speaker 00:
Your Honor, that magic language does not apply if you're describing features that are explicitly recited in dependent claims.

[00:07:58] Speaker 00:
And we've cited several cases to that effect.

[00:08:00] Speaker 00:
Absolute Software, FENF,

[00:08:03] Speaker 00:
continental circuits, all of those say, if you say the invention or the method of the invention, and you're referring to something that's explicitly found in dependent claims, such as prefection, which is only explicitly listed in dependent claims, then the magic no longer applies.

[00:08:19] Speaker 09:
And instead... What cases say the magic doesn't apply?

[00:08:21] Speaker 09:
I'm all about the magic.

[00:08:23] Speaker 00:
Yes, yes, Your Honor.

[00:08:24] Speaker 00:
Absolute software actually collects cases... Do these cases say that?

[00:08:29] Speaker 08:
Speak!

[00:08:29] Speaker 08:
Do these cases say that?

[00:08:32] Speaker 00:
Your Honor, let me give you the specific cases, because this is very clear.

[00:08:36] Speaker 00:
Absolute Software says that.

[00:08:38] Speaker 00:
That's 659F.3D.

[00:08:40] Speaker 00:
Who wrote that?

[00:08:42] Speaker 00:
I could have been on that panel.

[00:08:45] Speaker 00:
It, in fact, collects cases saying that even if you use the invention, if you're referring to dependent claims, it does not necessarily restrict all the claims.

[00:08:54] Speaker 00:
Fen app?

[00:08:55] Speaker 07:
Not necessarily is the keyword, right?

[00:08:58] Speaker 00:
Yes, but let's think about what's going on here.

[00:09:01] Speaker 00:
In column three,

[00:09:02] Speaker 00:
The applicant is walking through the features of dependent claims.

[00:09:06] Speaker 00:
They talk about pre-fetching, yes.

[00:09:08] Speaker 00:
They also talk about displaying content in one area of the display, but not others.

[00:09:11] Speaker 09:
You might want to claim differentiation concepts to dominate your spec, where you have defined the scope of your invention.

[00:09:19] Speaker 09:
I don't know what these cases are that are trying to disavow my magic, but I am not a fan.

[00:09:24] Speaker 09:
And I'm going to have to look carefully at them, because with all due respect, I'm not believing you.

[00:09:28] Speaker 00:
So Your Honor, think about what it would mean if column three, the entirety of column three,

[00:09:35] Speaker 00:
was describing something that must appear in every single claim.

[00:09:40] Speaker 09:
What it would mean is that you're giving proper notice to the world what the scope of your invention is.

[00:09:44] Speaker 09:
That feels like a really good thing to me.

[00:09:47] Speaker 00:
Your Honor, I think if we look at those cases, what we see is something that makes sense.

[00:09:51] Speaker 00:
When you say the method or the invention, sometimes you're referring to the method of a dependent claim or the method that appears in some claims but not others.

[00:09:59] Speaker 00:
And that makes sense, because otherwise we would have to adopt all of column three into every single claim of the patent, and that would make no sense at all.

[00:10:10] Speaker 00:
And in fact, the district court said in column three that it does not apply to all different aspects of the claim.

[00:10:17] Speaker 00:
What the district court did,

[00:10:20] Speaker 07:
Just for the benefit of everybody in the room, including the students, we're talking about construing patent claims, right?

[00:10:26] Speaker 07:
And what is the standard of review that this court would apply to the district court's construction of the patent claim?

[00:10:33] Speaker 07:
The patent claim is like a contract or statute that you have to interpret, right?

[00:10:37] Speaker 00:
Because it's a legal matter, it would be de novo.

[00:10:40] Speaker 00:
So this court can review the construction of the claim de novo.

[00:10:43] Speaker 07:
Right, so even if the district court said column 3 is not limiting, we could say it is, right?

[00:10:48] Speaker 00:
Yes, I think that's right.

[00:10:50] Speaker 00:
But I think it demonstrates that there's some inconsistency here between what the district court is saying or saying sometimes column 3 is not limiting and sometimes it is.

[00:10:59] Speaker 00:
And the district court said that on Appendix 62 in interpreting a different passage from column 3 and said that doesn't apply.

[00:11:06] Speaker 09:
OK, listen, you're into your rebuttal time.

[00:11:08] Speaker 09:
And I want to give you a chance to address Claim 12.

[00:11:10] Speaker 09:
So will you address Claim 12 for me, please?

[00:11:13] Speaker 00:
Yes, Your Honor.

[00:11:14] Speaker 00:
I want to address the establishing characteristics claim.

[00:11:18] Speaker 00:
And what happened there is the court said that characterizations were not specific to the individual users.

[00:11:28] Speaker 00:
And that simply is not consistent with the evidence.

[00:11:31] Speaker 00:
And I think the best piece of evidence for that is Appendix 14204.

[00:11:35] Speaker 07:
Is this the privacy statement?

[00:11:41] Speaker 00:
No, Your Honor, this is the statement of, it's an internal Chewy document titled Currently Launched Strategies.

[00:11:48] Speaker 00:
And it says that recommended products from a pet parent, i.e.

[00:11:53] Speaker 00:
a customer, that's what they call pet parents at Chewy.

[00:11:55] Speaker 09:
Is this the one that basically, if you have already bought something, you're automatically going to get certain ads?

[00:12:00] Speaker 00:
It not only says if you bought something, you get certain ads.

[00:12:03] Speaker 00:
It says, quote,

[00:12:05] Speaker 00:
Based on the likelihood that this is the right time to repurchase.

[00:12:08] Speaker 09:
I don't know where you are right now.

[00:12:10] Speaker 09:
Are you on 14204?

[00:12:11] Speaker 09:
14204, Your Honor.

[00:12:13] Speaker 00:
I don't know where you are.

[00:12:17] Speaker 09:
I'm just having trouble finding you.

[00:12:19] Speaker 00:
There's like a box about halfway down on 14024.

[00:12:23] Speaker 00:
And it says, it talks about currently launched strategies.

[00:12:26] Speaker 00:
And then it lists what happens.

[00:12:29] Speaker 00:
And it says in the last sentence,

[00:12:32] Speaker 00:
The frequency and time probability is based on overall chewy customer behavior and becomes more focused on the specific.

[00:12:39] Speaker 09:
Okay, let me ask a dumb question.

[00:12:40] Speaker 09:
This is not your confidential information.

[00:12:42] Speaker 09:
It's theirs, but it's in a yellow box.

[00:12:43] Speaker 09:
Does that not mean that what you just read is confidential?

[00:12:46] Speaker 00:
It was already non-confidential.

[00:12:48] Speaker 00:
You already agreed on that?

[00:12:49] Speaker 09:
Okay, I just want to make sure.

[00:12:50] Speaker 09:
It's designated confidential here in my brief, so I just wanted to make sure.

[00:12:54] Speaker 00:
Yes, that's why.

[00:12:55] Speaker 00:
This is the indication from the lower court.

[00:12:57] Speaker 00:
And so it becomes more focused on the specific pet parent as they repurchase at their own interval.

[00:13:03] Speaker 00:
So this is based on the intervals that a particular pet parent buys dog food or other products.

[00:13:10] Speaker 00:
And there's nothing more specific than that.

[00:13:12] Speaker 00:
It's not someone else's interval.

[00:13:14] Speaker 00:
It's that individual pet parent's interval.

[00:13:16] Speaker 00:
So I do want to go back, though, and discuss one more thing about prefetching, which is not only whether prefetching is in the claim.

[00:13:24] Speaker 09:
You are trying my patience.

[00:13:25] Speaker 00:
Go ahead.

[00:13:25] Speaker 00:
OK.

[00:13:25] Speaker 00:
I apologize, Your Honor, but I feel like this is really important.

[00:13:28] Speaker 00:
Even if prefetching is in the claims, there is no basis for the additional requirement that the district court inserted during summary judgment

[00:13:38] Speaker 00:
to say you need to do a specific type of prefetching that reads out Chewy's embodiment of prefetching.

[00:13:44] Speaker 00:
There's no serious dispute that Chewy performs prefetching, and everyone agrees on that.

[00:13:50] Speaker 07:
Just to make sure it's clear, you're saying what you're referring to as prefetching in this context is downloading the advertisement along with the information related, the search results, what have you, and then after that, storing it?

[00:14:06] Speaker 00:
You can think of prefetching, Your Honor, as the district court defined it in its claim construction opinion, which is fetching.

[00:14:12] Speaker 07:
Could you give me a yes or a no to my question?

[00:14:17] Speaker 07:
I just wanted to know, what are you referring to?

[00:14:20] Speaker 07:
Is it?

[00:14:21] Speaker 07:
the idea of when you send down the search results, you have the advertising also, and then you store the advertising object for future use.

[00:14:32] Speaker 00:
Yes, Your Honor, that's right.

[00:14:33] Speaker 00:
For future use or future display.

[00:14:35] Speaker 00:
And that's exactly what Chewy's pre-fetching documentation says at Appendix 13372.

[00:14:44] Speaker 00:
This is the doc, and it's a little bit of a difficult document to read.

[00:14:48] Speaker 09:
Well, I'm confused about something.

[00:14:50] Speaker 09:
I thought that your argument on appeal is limited to claim construction on selectively storing.

[00:14:55] Speaker 09:
It sounds like now you're arguing for the first time, as far as I can tell, that even if the district court was right about prefetching, they nonetheless infringed.

[00:15:04] Speaker 00:
Or there is nonetheless.

[00:15:07] Speaker 00:
It is a hundred percent in our brief that there's two bases.

[00:15:11] Speaker 00:
Number one, the claims do not require any type of prefetching.

[00:15:15] Speaker 00:
Number two, even if prefetching is in the claims, Chewy performs prefetching, yet the district court carved out the type of prefetching that Chewy does from the claims.

[00:15:29] Speaker 00:
And that is the problem here.

[00:15:31] Speaker 00:
There is ample evidence that Chewy prefetches, yet the district court said, in its summary judgment opinion, the user must prefetch, or the system must prefetch advertising before the user requests the page in connection with which it is to appear.

[00:15:49] Speaker 00:
And that additional requirement is nowhere in the claims.

[00:15:54] Speaker 00:
In fact, we have a discussion in our brief about how the claims, how the specification warns you not to prefetch everything before the user requests the page.

[00:16:06] Speaker 09:
It says... Well, thank you very much.

[00:16:07] Speaker 09:
Let's hear from... You've used all your time, all your rebuttal time, and an extra minute on top of that.

[00:16:11] Speaker 09:
Let's have you sit down and let's give the other guy a chance.

[00:16:13] Speaker 00:
Okay.

[00:16:14] Speaker 00:
Thank you.

[00:16:19] Speaker 01:
When you're honest, Josh Raskin on behalf of Chewy, and Chewy, I believe, Chewy is a website that sells pet products.

[00:16:28] Speaker 01:
Right, so it's still like dog food.

[00:16:30] Speaker 09:
Dogs chew on, yeah.

[00:16:32] Speaker 01:
Alright, that makes me happy.

[00:16:36] Speaker 01:
Go ahead.

[00:16:37] Speaker 09:
It's odd, by the way, to have a website that sells pet products to have patent claims

[00:16:43] Speaker 09:
directed to this advertising, isn't it?

[00:16:48] Speaker 01:
Well, we are not the patentee.

[00:16:50] Speaker 01:
We are the alleged infringer, but we are the declaratory judgment plaintiff, which is why it's a little confusing.

[00:16:55] Speaker 09:
Oh, man.

[00:16:55] Speaker 09:
I'm messing up.

[00:16:56] Speaker 01:
Let me write.

[00:16:56] Speaker 09:
Thank you for putting that up.

[00:16:57] Speaker 01:
That's true.

[00:16:58] Speaker 01:
We don't think there's anything on our website that's at all inventive.

[00:17:01] Speaker 01:
Got it.

[00:17:02] Speaker 01:
We are a retailer of other people's products.

[00:17:05] Speaker 01:
That's all we do.

[00:17:07] Speaker 01:
So the first issue that counsel just addressed is selectively storing.

[00:17:12] Speaker 01:
And based on the questions, I'm going to kind of skip over that, unless you're on the- Could you address the prosecution history?

[00:17:18] Speaker 07:
I think you've got some pretty good evidence in the prosecution history.

[00:17:21] Speaker 01:
Sure, I would love to address the prosecution history.

[00:17:23] Speaker 01:
That would be my pleasure.

[00:17:25] Speaker 07:
So the prosecution history, can you, for the benefit of the students, can you say what a prosecution history means?

[00:17:29] Speaker 01:
Sure, sure.

[00:17:30] Speaker 01:
So when an applicant, an inventor,

[00:17:34] Speaker 01:
files a patent application.

[00:17:36] Speaker 01:
What follows is a back and forth with the patent office regarding whether or not the patent office is going to grant the patent on the claims of that application.

[00:17:46] Speaker 01:
It's almost like a negotiation between the inventors and the patent office regarding the scope of the claim.

[00:17:53] Speaker 01:
If the patent office finds prior art that discloses what the claim discloses, the patent owner is permitted to narrow its claim.

[00:18:03] Speaker 01:
in order to overcome that prior art.

[00:18:06] Speaker 01:
The trick there is not to narrow it far enough so that nobody in the world would infringe and thereby

[00:18:13] Speaker 01:
reducing your patent to something that has very little value.

[00:18:16] Speaker 01:
So the prosecution history is the written record of the back and forth between the applicant and the Patent Office.

[00:18:25] Speaker 07:
And then we can look at that, people who want to invent can look at that back and forth and see what was said so they can understand

[00:18:35] Speaker 07:
what the patent owner has said their claims cover, that is the scope of their exclusive patent.

[00:18:41] Speaker 01:
Yes, and in construing claims, which is what we're talking about now, defining the scope of the claim as a matter of law, you all on the Federal Circuit have told us that the evidence that the court primarily looks at is called the intrinsic evidence, and the intrinsic evidence includes both the patent itself as well as the file history.

[00:19:04] Speaker 01:
because statements that the applicant makes to the patent office in order to get its patent are important or is actual notice to the public as to what the inventors meant by the claim terms and what they ultimately mean.

[00:19:18] Speaker 07:
Thank you for that.

[00:19:19] Speaker 07:
You're welcome.

[00:19:22] Speaker 01:
Professor.

[00:19:22] Speaker 01:
I've always thought of being kind of a professor.

[00:19:25] Speaker 01:
So turning to the prosecution history in this case, the parts that I'm going to refer to are at Appendix 4604.

[00:19:35] Speaker 01:
So this patent, and this is for the benefit of the students, had a very unique prosecution history in that it lasted about 11 years.

[00:19:47] Speaker 01:
When we tell our clients how long it takes to get a patent, we usually say it takes about a year and a half to two years, which is a long time to our clients.

[00:19:55] Speaker 01:
They want their patents today.

[00:19:56] Speaker 01:
This patent was prosecuted for about 11 years.

[00:20:00] Speaker 01:
And the portion of the prosecution history that I'm going to talk about now was at the tail end of that 11 years.

[00:20:06] Speaker 01:
So it was at a time when IBM had their backs against the wall and they wanted to get this patent.

[00:20:13] Speaker 01:
told, they began, this is an appeal brief that they filed with the Board of Patent Appeals and Interferences.

[00:20:21] Speaker 01:
And they told the board what the summary of the claimed invention was.

[00:20:27] Speaker 01:
And this is, I'm reading from a section of the appeal brief called Summary of Claimed Subject Matter.

[00:20:34] Speaker 01:
And on Appendix 4604, and I'm gonna read from the, start from the bottom of that middle paragraph.

[00:20:41] Speaker 01:
They say, in this regard, advertising objects, one form of a page element, are preferably structured substantially the same as the page element objects used to present application content.

[00:20:55] Speaker 01:
The difference between the two being their respective subject matter.

[00:20:58] Speaker 01:
One are applications, one are advertising.

[00:21:01] Speaker 01:
In this way, the applications in advertising are supplied to the user's reception system in the same data stream.

[00:21:07] Speaker 01:
but in a manner where the advertising may be time displaced from the application with which it may ultimately be presented.

[00:21:14] Speaker 01:
So the first step in accomplishing this invention, the invention being solving this interference problem between applications and advertising, was to structure the advertising in a way that it could be transmitted separately from the applications.

[00:21:29] Speaker 01:
And then in the next paragraph,

[00:21:31] Speaker 01:
The applicant said to further reduce the likelihood of application presentation delay, and that delay was caused by the interference.

[00:21:40] Speaker 01:
The specification describes selectively storing advertising objects at the user reception system.

[00:21:45] Speaker 01:
That's the claimed term work it's showing, selectively storing advertising.

[00:21:50] Speaker 01:
So that when advertising is to be presented, its data might be found available at the reception system without going back to the host.

[00:21:57] Speaker 09:
So it's stored on the local.

[00:21:59] Speaker 01:
Right.

[00:22:01] Speaker 01:
Yes.

[00:22:01] Speaker 01:
And then it says, this method, or the method, so the one we just talked about, the selectively storing method, which is described, provides for storing and managing advertising objects so that the advertising objects may be separately prefetched from the network and cached at the reception system in anticipation of being called for presentation.

[00:22:23] Speaker 01:
In other words, applications in advertising are separate entities

[00:22:27] Speaker 01:
and they travel separately to the reception system.

[00:22:29] Speaker 03:
Do you believe this is one of your strongest pieces, intrinsic form?

[00:22:32] Speaker 01:
Yes, I do, Your Honor, and it's one of our strongest, but it also attracts almost exactly with column two, the abstract.

[00:22:43] Speaker 01:
I mean, if you read the abstract of the patent, it almost reads exactly like this.

[00:22:47] Speaker 01:
The summary of the invention section reads exactly like this.

[00:22:51] Speaker 01:
Everywhere in the patent where the applicant

[00:22:54] Speaker 01:
Summarized the invention or said this is the invention or the method it was referred It was stated in reference to prefetching the advertisements first before the user requests the page because once these are requested page Yes, repeatedly consistent and there's nowhere in the patent where you're going to find that the Advertisements were described in connection with their retrieval any other way other than prefetching

[00:23:23] Speaker 01:
So unless there are any other questions on the claim construction issue, I just want to turn to the infringement aspect of selectively storing.

[00:23:31] Speaker 01:
And this is what my adversary just finished his argument on.

[00:23:34] Speaker 05:
Can I ask you a question?

[00:23:35] Speaker 05:
I think it's about clinical 12.

[00:23:37] Speaker 05:
In your brief, I believe at page 57, do you admit that there may have been some factual disputes?

[00:23:44] Speaker 05:
And if so, if I read that correctly,

[00:23:47] Speaker 05:
Why do you believe that would preclude summary judgment with respect to that claim?

[00:23:52] Speaker 01:
Okay, so now we're talking about the characterizations?

[00:23:55] Speaker 06:
Yes.

[00:23:55] Speaker 01:
Okay, I'm sorry, what page?

[00:23:57] Speaker 01:
57?

[00:23:57] Speaker 06:
57.

[00:23:58] Speaker 06:
I thought I saw something right at the end there that perked up my ears when I asked about it.

[00:24:07] Speaker 05:
So it's the in short sentence on page 57?

[00:24:10] Speaker 01:
In short, although there may have been some factual disputes, none of them rose to a level of... Yeah, so I think what we're talking about here is that... Refresh my recollection of what we were talking about here.

[00:24:26] Speaker 01:
Okay, so I think what we were referencing here is that they had an expert.

[00:24:31] Speaker 01:
okay, who said that certain features of the Chewy website, and I'll point out that the features that their expert submitted an expert report on are not the features that IBM raised in the appeal.

[00:24:45] Speaker 01:
The features that IBM raised in the appeal, this pet lovers, not pet lovers, it was a pet parent or buy it again, was not at issue at the district court.

[00:24:57] Speaker 01:
It wasn't briefed in IBM's summary judgment brief,

[00:25:00] Speaker 01:
They did raise it in about a page and a half of the transcript at the summary judgment hearing, but there was no briefing of the buy it again feature.

[00:25:13] Speaker 01:
Judge Rakoff did not even rule on the buy it again feature.

[00:25:16] Speaker 01:
It's not found at all in his decision.

[00:25:19] Speaker 09:
Did you argue that this was waived?

[00:25:21] Speaker 01:
We didn't use the term waiver, Your Honor, but we did argue that it was not mentioned in their briefs.

[00:25:26] Speaker 01:
The reason why we did not argue waiver is because we did acknowledge that they mentioned it in the oral argument, but we did not argue waiver.

[00:25:36] Speaker 01:
But I will mention that there is no record or decision by Judge Rakoff on which this panel can either affirm or reverse, because he never decided whether

[00:25:49] Speaker 01:
the buy it again feature infringes claim 12.

[00:25:53] Speaker 01:
The only features that he focused on... Did he address the privacy documents?

[00:25:58] Speaker 01:
Yes, he mentioned the privacy documents and he said that those privacy documents were consistent with the features that he did analyze, which was the frequently bought together and pet lovers also bought features.

[00:26:12] Speaker 01:
Those are the features that he analyzed on summary judgment.

[00:26:15] Speaker 01:
And he found that those don't satisfy claim 12 because those

[00:26:19] Speaker 01:
features rely not on

[00:26:22] Speaker 01:
characterizations of an individual user, but on aggregate information collected about users generally.

[00:26:30] Speaker 09:
I didn't think that was right.

[00:26:31] Speaker 09:
I thought that the information was if you bought it in the past, and it doesn't just mean you personally, but basically any person in this room that bought this particular product in the past was going to get a certain advertisement by virtue of the fact that you bought this product in the past.

[00:26:48] Speaker 09:
Am I understanding the feature correctly?

[00:26:51] Speaker 01:
Okay, so let me try to explain.

[00:26:53] Speaker 01:
So there were two sets of features.

[00:26:56] Speaker 01:
One that were argued to Judge Rakoff on summary judgment and one that is argued today on appeal.

[00:27:03] Speaker 01:
The ones that were argued to Judge Rakoff were called frequently bought together, okay, or pet lovers also bought.

[00:27:10] Speaker 01:
And the way that worked is if I go onto the Chewy website and I choose a dog bowl,

[00:27:17] Speaker 01:
and I click on the dog bowl, and it takes me to the product page.

[00:27:22] Speaker 01:
What the algorithm will do is send the SKU, the SKU for the dog bowl, to their database and see all the users that ever bought that dog bowl, do they buy something else at the same time?

[00:27:34] Speaker 01:
For example, detergent to clean a dog bowl.

[00:27:39] Speaker 01:
And they would say, maybe you want to buy this, because pet lovers also bought this.

[00:27:45] Speaker 01:
Okay, Judge Rakoff found that that wasn't sufficient for purposes of Claim 12 because that wasn't based on the transaction history of that user.

[00:27:56] Speaker 07:
That makes sense.

[00:27:57] Speaker 01:
It's based on the transaction history of all the users.

[00:28:00] Speaker 07:
Can I understand what you're saying, which is that IBM did not assert

[00:28:05] Speaker 07:
the other evidence that's like for example at the privacy page about targeting advertising based on the user search?

[00:28:14] Speaker 01:
Well at the summary judgment stage IBM did rely also on the privacy policy but Judge Rakoff dismissed that by saying that's not inconsistent with collecting information about what the privacy policy says is

[00:28:30] Speaker 01:
And the court, I'm sure, is familiar with privacy policies, right?

[00:28:34] Speaker 01:
These are just statements preserving the right, the company preserving the right to collect a lot of information about a user so that they don't get themselves into trouble later on and sued for privacy policy, privacy violations.

[00:28:48] Speaker 01:
And what it says is, we may collect information about you.

[00:28:53] Speaker 01:
And one of the reasons they say we may collect information about you is that so we can give you the most relevant information, relevant advertisements.

[00:29:01] Speaker 07:
Is this document confidential?

[00:29:04] Speaker 01:
No, it's not.

[00:29:05] Speaker 09:
It's on there.

[00:29:06] Speaker 09:
It's 14509.

[00:29:08] Speaker 09:
But here's the sentence that really kind of causes me pause about what you're arguing.

[00:29:14] Speaker 09:
It's 14509 where right after interest-based advertising it says we and our service providers use cookies to learn about what ads you see

[00:29:26] Speaker 09:
what ads you interact with and other actions you take on our services.

[00:29:32] Speaker 09:
That's not going towards whether somebody else bought detergent with a dog bowl.

[00:29:37] Speaker 09:
That is specific to you, the user, that they're gathering this information.

[00:29:42] Speaker 09:
This allows us to provide you with more useful and relevant ads.

[00:29:47] Speaker 09:
So they're specifically saying, we collect the information about what you personally are doing, not what other people are doing, you personally, and that we then give you ads that we tailor based on that information we collected about you.

[00:30:01] Speaker 01:
Okay.

[00:30:02] Speaker 01:
And the way that Judge Rakoff dismissed that, and it's a way with which we think we agree, is that, yes, it's true, it's going to collect information about me.

[00:30:17] Speaker 01:
For example, I bought this dog bowl and I also bought this detergent to clean the dog bowl and it's going to collect that same information about my colleague who goes to the website and buys the dog bowl and also purchases that detergent.

[00:30:35] Speaker 01:
But that's not what the patent covers.

[00:30:37] Speaker 01:
It doesn't cover what is collected.

[00:30:39] Speaker 01:
It covers how the advertising is supplied to me based on what's collected.

[00:30:44] Speaker 07:
But these documents that Judge Moore is referring to suggest that the advertising received is based on that.

[00:30:52] Speaker 07:
Are you saying that these documents are not evidence that you're actually using this advertising?

[00:30:58] Speaker 01:
It is based on that, but it's based on that information that's collected about everyone, not just about me.

[00:31:06] Speaker 01:
If I purchase the dog all- That's not what it says here.

[00:31:09] Speaker 09:
This does not say that.

[00:31:10] Speaker 01:
What this says is what's collected.

[00:31:12] Speaker 09:
It doesn't say... No, and then it says, this allows us to provide you with more useful, relevant ads.

[00:31:19] Speaker 09:
So it's saying, I collect this stuff about you, and then that, exactly, that stuff I just collected about you allows me to provide you with more relevant ads.

[00:31:28] Speaker 07:
There's a reasonable inference under summary judgment, drawing all factual inferences in favor of the not moving.

[00:31:35] Speaker 01:
I understand that, Your Honor.

[00:31:36] Speaker 01:
But one other point on this privacy policy is that IBM didn't tie this privacy policy to any particular feature of the Chewy website.

[00:31:48] Speaker 01:
It says all of this.

[00:31:50] Speaker 01:
Granted, it says all of this.

[00:31:52] Speaker 01:
But there's no proof that Chewy actually does this.

[00:31:55] Speaker 01:
And privacy policies are known to not

[00:32:00] Speaker 07:
recite the truth.

[00:32:03] Speaker 07:
We're talking about summary judgment because I'm sure the students know in this room, vaccines that we have to, in the district we had to, make all factual inferences in favor of the non-movement.

[00:32:17] Speaker 07:
And here you've got a privacy policy that says we're going to collect this information so we can provide advertising content based on what your prior purchases were.

[00:32:28] Speaker 01:
And that's true.

[00:32:29] Speaker 01:
All reasonable inferences have to be weighed in favor of the non-movement.

[00:32:34] Speaker 01:
But there needs to be evidence that Chewie performs the step of Claim 12 beyond just statements in a privacy policy saying that we collect this information.

[00:32:47] Speaker 07:
There has to be evidence that there's a- So do a case law that says there's certain documents like privacy policy that will not be enough ever to show an infringement?

[00:32:56] Speaker 07:
No, I don't know.

[00:32:58] Speaker 01:
I don't, but I'm saying in order to go to a jury, and another way of stating the summary judgment standards that no reasonable juror can find in favor of the non-moving, and we submit that to go to a jury just with this privacy policy, not pointing to any specific feature of the website that implements what this privacy policy says,

[00:33:21] Speaker 01:
and any evidence that that feature actually performs what the claims said.

[00:33:26] Speaker 09:
I want to give you a chance though to address the feature that they did point to today at Pet Parent.

[00:33:35] Speaker 09:
Yes.

[00:33:36] Speaker 09:
And on page 39 of your brief,

[00:33:38] Speaker 09:
Your only response to the pet parent thing, in addition to your suggestion that this document wasn't cited in their motion below, the only other thing is rather all users of Shui's website that previously bought the item were receiving the same advertisement.

[00:33:53] Speaker 09:
You know, that's not actually at all persuasive to me personally.

[00:33:57] Speaker 09:
And so I guess you can waive waiver.

[00:34:01] Speaker 09:
You didn't, I don't read page 39 as arguing they waived this, all right?

[00:34:05] Speaker 09:
And so if waiver doesn't apply,

[00:34:08] Speaker 09:
And if now there's a privacy policy that says they use your targeted information, and then there's also a particular feature that they are pointing to, which you have not said they waive, which is this pet parent feature, why isn't that enough?

[00:34:21] Speaker 01:
OK.

[00:34:22] Speaker 01:
I'll try to give you three reasons.

[00:34:24] Speaker 01:
Number one, on the, I won't call it waiver, but it's an easy way to refer to this argument.

[00:34:32] Speaker 01:
Judge Rakoff never ruled regarding whether this.

[00:34:35] Speaker 09:
Then why don't we make him remain for him to do that?

[00:34:37] Speaker 01:
Okay, that's one option, but if you did vacate and remand for Judge Rakoff to provide an analysis of this feature, he has no tools to do that because it was never briefed by IBM before him.

[00:34:50] Speaker 01:
Their expert, IBM's expert, Dr. Schmidt, never gave a single opinion on this buy it again feature in his expert report.

[00:35:01] Speaker 01:
It's not mentioned once in his entire expert report.

[00:35:03] Speaker 09:
Okay, but is it in evidence?

[00:35:06] Speaker 09:
What page number is this?

[00:35:09] Speaker 09:
14204.

[00:35:13] Speaker 09:
Is that page in evidence that was before the judge on summary judgment?

[00:35:16] Speaker 01:
It seems explanatory on its own face.

[00:35:21] Speaker 09:
So you don't necessarily, as you know, need an expert to testify everything.

[00:35:25] Speaker 09:
If there's a document that says what it says and people can read it, it doesn't matter whether the expert mentioned it.

[00:35:30] Speaker 09:
Was it in evidence presented as part of the summary judgment package?

[00:35:35] Speaker 01:
Yes.

[00:35:36] Speaker 09:
So couldn't they, on remand, maybe you're exactly right, they shouldn't be allowed to now modify expert testimony and have the expert try to explain it, but can't they just point to the document and show the judge how this document on its face, especially in conjunction with the privacy policy, shows that there is a particular chewy application or section of code or whatever that is doing exactly what their privacy policy says.

[00:35:59] Speaker 01:
Well, I think the problem with that, Your Honor, is that

[00:36:02] Speaker 01:
the, like all things, like most things in patents, the devil is in the details.

[00:36:06] Speaker 01:
And it's how this feature works, this buy it again feature.

[00:36:13] Speaker 01:
All we have is a one page document that mentions this buy it again feature.

[00:36:17] Speaker 01:
There's no analysis of the underlying source codes.

[00:36:20] Speaker 01:
Should we produce its entire source code in this case?

[00:36:23] Speaker 03:
And in IBM's brief- That's not per se required though, right?

[00:36:26] Speaker 03:
To have an analysis in this regard?

[00:36:29] Speaker 01:
Well, I think there needs to be some sort of evidence as to how this feature works, right?

[00:36:34] Speaker 09:
The fact that in order to claim- But is the evidence in page 14204?

[00:36:37] Speaker 09:
I mean, evidence is page 14204 about how the feature works.

[00:36:40] Speaker 09:
And this is just summary judgment.

[00:36:42] Speaker 09:
You could always put in testimony that says, that's not in our source code.

[00:36:46] Speaker 09:
I realize that the statement, the page says that, but, you know, look, they can't point anywhere in our source code where it actually does that, right?

[00:36:52] Speaker 01:
Well, and that is what we argued to this court, that they never pointed to anything in the source code as to how this worked.

[00:36:59] Speaker 01:
despite the fact that in their brief they said that their expert did a painstaking review of the source code.

[00:37:05] Speaker 01:
He said that in connection with a different, with the selectively storing argument.

[00:37:10] Speaker 01:
And so he did a painstaking review, but yet never even mentioned this feature in his entire expert report.

[00:37:17] Speaker 01:
It's not anywhere to be found.

[00:37:19] Speaker 01:
And so, yes, there is a feature called buy it again.

[00:37:26] Speaker 01:
And when a user goes onto a website, it might say,

[00:37:28] Speaker 01:
Hey, you bought this dog food a month ago.

[00:37:32] Speaker 01:
Maybe it's time to reorder.

[00:37:35] Speaker 01:
But there's no testimony regarding what happens in the back end.

[00:37:39] Speaker 01:
How did the system know to display that notice, that prompt to say, hey, you should buy this again?

[00:37:47] Speaker 01:
There's no testimony as to how that happened.

[00:37:49] Speaker 01:
And the claim is specific that that has to happen based on an analysis of the user, the respective user's characterization, meaning

[00:37:58] Speaker 01:
the user's transaction history.

[00:38:01] Speaker 01:
So what if the system says, all right, when I sign up, when I type in Chewy.com, the system says, let me check the users, all the shipments that have been made to that user.

[00:38:13] Speaker 01:
And we shipped dog food 30 days ago, let's prompt.

[00:38:17] Speaker 01:
That shipment isn't my characterization.

[00:38:19] Speaker 09:
This is summary judgment, and I have to, all the inferences have to go their way, not your way.

[00:38:24] Speaker 09:
So you could come up with a million hypotheticals where maybe what you say on 14204 doesn't fit within the scope of these claims, but don't I have to infer for their sake that maybe they've produced just a smidgen of evidence that is enough?

[00:38:40] Speaker 01:
And now I'm getting back into a waiver argument that we didn't make.

[00:38:44] Speaker 09:
Okay, we're done.

[00:38:45] Speaker 01:
But all I wanted to say on that, and then I'll sit, is that

[00:38:49] Speaker 01:
Judge Rakoff couldn't have waited in favor of them because they didn't make the argument.

[00:38:56] Speaker 01:
I'm finished unless you have any further questions.

[00:38:58] Speaker 01:
Oh, good.

[00:38:58] Speaker 01:
Thank you.

[00:38:59] Speaker 08:
Thank you for being finished.

[00:39:00] Speaker 08:
You can have as much time as you want.

[00:39:02] Speaker 01:
Come on.

[00:39:02] Speaker 08:
Come on back up.

[00:39:03] Speaker 08:
Come on.

[00:39:04] Speaker 08:
I mean, look at this.

[00:39:04] Speaker 08:
OK.

[00:39:05] Speaker 08:
Your Honor.

[00:39:05] Speaker 08:
He didn't listen when I told him to sit, so I mean, boy.

[00:39:09] Speaker 00:
OK.

[00:39:09] Speaker 00:
Your Honor, I promise you'll want to hear what I have to say.

[00:39:12] Speaker 00:
So.

[00:39:13] Speaker ?:
That's OK.

[00:39:14] Speaker 08:
I promise.

[00:39:15] Speaker 08:
That's a big ring.

[00:39:17] Speaker 00:
Wait, wait.

[00:39:17] Speaker 00:
Hold on.

[00:39:17] Speaker 00:
Hold on.

[00:39:18] Speaker 08:
Hold on.

[00:39:18] Speaker 08:
Hold on.

[00:39:19] Speaker 08:
Can we take a vote on the likelihood of that?

[00:39:22] Speaker 00:
Can we vote after I say it?

[00:39:25] Speaker 00:
OK.

[00:39:26] Speaker 00:
So, Your Honor, on pages 17 to 18 of our reply brief, we walk through why this evidence was cited in our brief, and we explain.

[00:39:41] Speaker 00:
And it's simply incorrect to say that this evidence wasn't in the record about characterizations.

[00:39:47] Speaker 09:
He didn't say it wasn't in the record.

[00:39:48] Speaker 09:
He said that your expert didn't testify to it.

[00:39:51] Speaker 09:
And he also said that you didn't specifically mention it in your summary judgment briefing.

[00:39:56] Speaker 09:
He did not say it wasn't in the record.

[00:39:57] Speaker 09:
He, in fact, agreed it was in the record.

[00:39:59] Speaker 09:
So do not misrepresent what he said.

[00:40:01] Speaker 00:
Yes, Your Honor.

[00:40:03] Speaker 00:
And I think if we look at the record of the summary judgment briefs, we do explain why it is actually

[00:40:13] Speaker 00:
in the record.

[00:40:14] Speaker 00:
In our summary judgment briefing, we explain why in the discussion of characterizations.

[00:40:19] Speaker 09:
Okay, where is that?

[00:40:20] Speaker 09:
I have to use it.

[00:40:20] Speaker 09:
Where is that?

[00:40:21] Speaker 09:
The page of the appendix?

[00:40:25] Speaker 09:
Summary judgment, I had it well at that point.

[00:40:32] Speaker 00:
Maybe around 127-ish?

[00:40:36] Speaker 00:
It is on Appendix 8563.

[00:40:45] Speaker 00:
Actually, let me start off the page before 8562.

[00:40:48] Speaker 00:
And that's under the header there.

[00:40:53] Speaker 09:
Chewy meets characterization limits.

[00:40:55] Speaker 00:
Exactly.

[00:40:56] Speaker 00:
So this is us addressing their arguments at summary judgment.

[00:40:59] Speaker 09:
On claim 12.

[00:41:00] Speaker 00:
On claim 12, exactly, Your Honor.

[00:41:03] Speaker 00:
And what we say at the bottom of page 10 is Chewy does not dispute that Chewy provides targeting advertisement.

[00:41:09] Speaker 00:
The evidence further established that Chewy provides targeting advertisements based on characterizations of users.

[00:41:16] Speaker 00:
and we cite the analysis of how Chewy does that.

[00:41:21] Speaker 00:
And then further down below.

[00:41:22] Speaker 09:
Okay, but is any of this a site?

[00:41:25] Speaker 09:
Because of course, these are like record sites that don't line up, of course, with our appendices numbers.

[00:41:30] Speaker 09:
So what he says is, yeah, you made arguments like that below, but they weren't to this feature that is identified at 14204.

[00:41:36] Speaker 09:
So I need you to tell me, are any of these exhibit sites 14204?

[00:41:41] Speaker 09:
And please know that my clerks are gonna be looking behind this

[00:41:44] Speaker 09:
And if you get it wrong, if you don't know the answer, tell me you don't know the answer.

[00:41:48] Speaker 09:
Because if you tell me, yes, this is it, and it's not it, we're going to have a further discussion later, you're not going to like.

[00:41:54] Speaker 00:
Okay.

[00:41:55] Speaker 00:
Yes, Your Honor.

[00:41:56] Speaker 00:
I know it, and I will point it to you right now.

[00:41:58] Speaker 00:
Go ahead.

[00:41:58] Speaker 00:
It says, Dr. Schmidt's report includes analysis of certain examples, including Chewie's frequently bought together carousel,

[00:42:06] Speaker 00:
and its pet lovers also bought carousels and further explains how those carousels rely on characterizations of users including interaction history such as past sales and the subject matter of requested applications.

[00:42:17] Speaker 00:
That's the assertion and the evidence to back it up is IBM SAMF paragraph 78 to 84.

[00:42:26] Speaker 07:
Are you saying that IBM SAMF paragraph 78 to 84 is what we're going to see at JA 14204?

[00:42:36] Speaker 09:
So what that is... Remember, you're not sure.

[00:42:41] Speaker 00:
That's the way to go.

[00:42:42] Speaker 00:
I am sure, Your Honor.

[00:42:43] Speaker 00:
Okay.

[00:42:43] Speaker 00:
And what that is, is that's... My question, yes or no?

[00:42:47] Speaker 00:
Yes, it's the 56-1 statement.

[00:42:50] Speaker 00:
And it's, you know, the paragraphs you cite at summary judgment about here are the facts that are in dispute.

[00:42:55] Speaker 00:
And if you look at the 56-1 statement, which are IBM, SAMF, at paragraphs 78 to 84, you're going to see a citation to exhibit

[00:43:05] Speaker 00:
93 is exactly the document we've been discussing.

[00:43:12] Speaker 00:
14204.

[00:43:15] Speaker 00:
So let's look at 14204.

[00:43:19] Speaker 03:
Where in the Joint Appendix can we find what you were just describing?

[00:43:24] Speaker 03:
Because I don't think it was the page that Judge Stoll mentioned.

[00:43:28] Speaker 03:
I just want to make sure I'm

[00:43:29] Speaker 03:
Yes.

[00:43:30] Speaker 00:
Yes, Your Honor.

[00:43:32] Speaker 00:
So 14203 is Exhibit 93.

[00:43:35] Speaker 00:
You'll see it there.

[00:43:36] Speaker 06:
Yes, I see that.

[00:43:37] Speaker 06:
You were mentioning where we could find IBM, SA, MF, paragraph 78 to 84.

[00:43:42] Speaker 06:
I want to see that.

[00:43:42] Speaker 00:
Do you have that in your appendix?

[00:43:44] Speaker 00:
Yes.

[00:43:45] Speaker 00:
It's 14203 to 14204.

[00:43:47] Speaker 00:
So let's look at that.

[00:43:50] Speaker 09:
This is very good.

[00:43:51] Speaker 09:
You've got an excellent math for your appendix.

[00:43:53] Speaker 09:
I like it.

[00:43:54] Speaker 09:
Oh, sorry, sorry.

[00:43:59] Speaker 00:
I have it.

[00:44:02] Speaker 00:
8563.

[00:44:03] Speaker 07:
No, that's the page you have us on.

[00:44:08] Speaker 07:
I take back my copyright.

[00:44:13] Speaker 00:
Oh, sorry.

[00:44:16] Speaker 00:
14832.

[00:44:25] Speaker 06:
Okay, I think we might have made it somewhere.

[00:44:28] Speaker 02:
Thank you for your patience, I appreciate it.

[00:44:30] Speaker 09:
Petlover's also shopped for, Petlover's also bought, right?

[00:44:33] Speaker 09:
83, there we go.

[00:44:34] Speaker 00:
There you go.

[00:44:35] Speaker 00:
So that's the connection.

[00:44:35] Speaker 00:
So the reason why it's difficult is because we cite to the 56.1 statement.

[00:44:40] Speaker 08:
In his defense, it's a little tenuous, but it's there.

[00:44:43] Speaker 00:
And it's all walked through on pages 17 to 18 of our reply brief, so if you want to see the entire chain, that's where it is.

[00:44:49] Speaker 04:
Can I ask you about the source code evidence?

[00:44:51] Speaker 04:
Your opposing counsel was raising a concern with respect to that.

[00:44:54] Speaker 04:
Can you at least address that before you have a seat?

[00:44:56] Speaker 00:
Yes, Your Honor.

[00:44:57] Speaker 00:
And that's the Amdocs case we cite.

[00:45:00] Speaker 00:
And what that says is you don't need source code to prove functionality.

[00:45:04] Speaker 00:
You can prove it in other ways, too.

[00:45:06] Speaker 00:
And I think that's what Your Honor was alluding to.

[00:45:08] Speaker 07:
And you're just seeking to have a trial on this, right?

[00:45:11] Speaker 07:
Yes.

[00:45:12] Speaker 07:
And so if you wanted to put in the soft source code at that point, you could, right?

[00:45:17] Speaker 00:
Yes.

[00:45:17] Speaker 00:
So if opposing counsel wanted to cross-examine our expert and say, well, you know, you didn't find the specific source code, then there would be a dispute about whether the source code was not for whether there's other ways to present stuff.

[00:45:28] Speaker 00:
There's one more question that you asked me, and I want to make sure I answer it crisply.

[00:45:34] Speaker 00:
And your question was, do you allege that Chewy prefetches in your opening brief?

[00:45:40] Speaker 00:
And the answer is yes.

[00:45:42] Speaker 00:
And I just want to make sure that's super clear.

[00:45:44] Speaker 00:
On page 32 of our opening brief,

[00:45:53] Speaker 00:
There is an entire header titled, chewy prefetches advertising objects under the court's claim construction order.

[00:46:02] Speaker 00:
And the purpose of this analysis is to say, even if the courts require prefetching, we shouldn't exclude their implementation of prefetching by adding additional requirements.

[00:46:15] Speaker 00:
So that's what's there.

[00:46:17] Speaker 09:
Excellent.

[00:46:17] Speaker 09:
Thank you.

[00:46:18] Speaker 09:
I think both counsel, you both did a wonderful job.

[00:46:20] Speaker 09:
And thank you so much for doing all this in front of the students.

[00:46:22] Speaker 09:
We really appreciate it.