[00:00:00] Speaker 01:
Our first case for argument this morning is 22-1193, IPA Technologies versus Amazon.

[00:00:08] Speaker 01:
Mr. Powers, please proceed.

[00:00:15] Speaker 00:
Thank you, Your Honor.

[00:00:16] Speaker 00:
May it please the court.

[00:00:17] Speaker 00:
The district court below made errors of claim construction that require reversal and an error of procedure that would require remand.

[00:00:27] Speaker 00:
I'd like to begin with the errors of planning construction, if I may.

[00:00:31] Speaker 02:
There are other allegations that were not dealt with by the judge.

[00:00:37] Speaker 02:
So at most, it would be a remand for him to consider the other issues.

[00:00:40] Speaker 00:
Certainly it would be remand.

[00:00:42] Speaker 00:
When I say reversal, it's reversal of this ground of summary judgment.

[00:00:45] Speaker 00:
There were other grounds of summary judgment argued that obviously would have to be covered on remand.

[00:00:49] Speaker 00:
No question.

[00:00:50] Speaker 00:
That's all we want.

[00:00:51] Speaker 02:
Sorry to take your time.

[00:00:53] Speaker 00:
No problem.

[00:00:53] Speaker 00:
So those first, both errors of planning construction

[00:00:57] Speaker 00:
were limitations imposed by the district court on the form of the service request.

[00:01:05] Speaker 00:
And the district court's quite cursory opinion does not cite any of the limiting language that this court usually requires to impose such restrictions on otherwise broad claim language.

[00:01:19] Speaker 00:
The first limitation imposed by the district court was that the request that is part of the system

[00:01:26] Speaker 00:
must contain all levels or all aspects of the ICL, the overall language.

[00:01:35] Speaker 00:
There is no question that the overall language must have both a content layer and a conversational layer.

[00:01:41] Speaker 00:
That's not a dispute.

[00:01:43] Speaker 00:
What is a dispute is whether the request that's made must be at both of those present as well.

[00:01:48] Speaker 00:
The claims do not so require.

[00:01:51] Speaker 00:
The specification does not require.

[00:01:54] Speaker 00:
And the district court's, as I say, quite cursory opinion simply does not support that conclusion.

[00:02:00] Speaker 00:
And the claims themselves, as we point out in the briefs, and I'm happy to discuss now, are actually inconsistent with that conclusion, as is the specification.

[00:02:10] Speaker 00:
So the claim language specifically makes clear that the ICL language as a whole must contain both of those layers.

[00:02:17] Speaker 00:
No question.

[00:02:18] Speaker 00:
But the service of it.

[00:02:19] Speaker 00:
And then it says, receiving a service request in the interagent language.

[00:02:24] Speaker 00:
Exactly.

[00:02:25] Speaker 00:
In or adhering to, those are various formulations.

[00:02:29] Speaker 00:
And it is in the language.

[00:02:31] Speaker 00:
It doesn't say that the request, which is part of that language, or adhering to that language, or in the language, must contain all aspects of the language.

[00:02:41] Speaker 00:
And I think the example we gave in the brief is quite apt.

[00:02:46] Speaker 00:
The English language, as an analogy, has many tenses and rules and all sorts of things.

[00:02:52] Speaker 00:
So the question, for example, what time is it, adheres to the English language, even though it doesn't include the past perfect subjunctive tense or many other aspects of the English language.

[00:03:03] Speaker 00:
But it adheres to it because the words it used are English, and it follows the rules of the English language.

[00:03:10] Speaker 00:
Whereas the phrase, why apples is to be oranges, contains all English words, but does not adhere to

[00:03:18] Speaker 00:
the rules of the English language, and therefore would not adhere to the English language in the same way that the previous phrase would.

[00:03:27] Speaker 00:
Neither one contains every aspect of the English language, and there's certainly nothing in the claims or the specification that suggests that this individual request must contain every aspect of the language.

[00:03:39] Speaker 00:
And in fact, the claims and the specification are clear otherwise in making clear that the request itself is actually part of the content layer.

[00:03:50] Speaker 00:
And that is the point that we made in the briefs, where if you look at claim one, for example, of the 115 patent, it says receiving a request for service, which is the relevant term, as a base goal.

[00:04:06] Speaker 00:
OK, so the base goal is something that patents define as something which actually is part of the content layer, not the conversational layer.

[00:04:14] Speaker 00:
And the district court's basis for granting summary judgment was that the request, although part of the content layer, did not have a conversational layer built into it.

[00:04:24] Speaker 00:
but claim one of the 115.

[00:04:25] Speaker 02:
But would it be possible to understand the goal if it didn't comport with the structural requirements of the ICL?

[00:04:32] Speaker 02:
I don't think it would.

[00:04:33] Speaker 00:
Yes, because the other aspects of the system apply the rules of the ICL to it.

[00:04:38] Speaker 02:
And for example, if you look at- Well, the other aspects include the protocol, the conversational protocol.

[00:04:44] Speaker 00:
Absolutely.

[00:04:44] Speaker 00:
Right.

[00:04:45] Speaker 00:
And I think the best way to understand that is to look at page 13 of the blue brief,

[00:04:55] Speaker 00:
how the Alexa system operates.

[00:05:00] Speaker 00:
And if you compare that to figures four and six of the assertive patents, they are strikingly similar.

[00:05:07] Speaker 00:
They're almost identical, at least to figure six.

[00:05:09] Speaker 00:
And what this flow diagram shows, as an example, is someone might say orally, Alexa, plague, hey Jude, by the Beatles.

[00:05:19] Speaker 00:
That's an oral utterance.

[00:05:21] Speaker 00:
That's not going to be understood by the system.

[00:05:23] Speaker 00:
So it goes through this automatic speech recognition.

[00:05:28] Speaker 00:
And what comes out is surf text, the S-I-R-F, which is discussed in the briefs at some length.

[00:05:34] Speaker 00:
That surf text parses that oral utterance and makes it clear so it's understandable by the system what is being asked.

[00:05:46] Speaker 00:
Then the next part of the system

[00:05:49] Speaker 00:
converts is where you see the conversational protocols and the rules being applied to it.

[00:05:54] Speaker 00:
And that's how Alexa then says, I know that they're asking me to play Hey Jude by the Beatles.

[00:06:02] Speaker 00:
And it goes and finds the agent that can play Hey Jude by the Beatles and does so.

[00:06:07] Speaker 00:
So not every aspect of the system has to have every aspect of the system.

[00:06:11] Speaker 01:
Well, except that the claim also has recites interpreting the service request.

[00:06:16] Speaker 01:
And one step of that is to construct a goal satisfaction plan.

[00:06:20] Speaker 01:
And that plan, according to the district court's construction,

[00:06:23] Speaker 01:
has to be consistent with the advice parameters, and the advice parameters are given by the conversation layer.

[00:06:29] Speaker 01:
So you're saying that everything has to have everything, but these claims and the unappealed constructions weave the conversation layer into the elements of the claim.

[00:06:38] Speaker 00:
The conversation layer is present for sure, but it's not present in the request.

[00:06:42] Speaker 00:
So the issue on the appeal is not whether the conversation layer is required, and these rules and protocols are required.

[00:06:49] Speaker 00:
Of course they are.

[00:06:50] Speaker 01:
But the request- Did you appeal the construction of the conversation layer as a layer of rules which govern the structure of the inter-agent communication?

[00:06:58] Speaker 00:
No, I didn't need to.

[00:07:00] Speaker 00:
Because the issue on appeal is whether the service request has to have that layer.

[00:07:05] Speaker 00:
And the service request does not.

[00:07:07] Speaker 00:
It's a goal, which is part of the content layer.

[00:07:10] Speaker 01:
And the conversational layer- If the SERP message has to adhere

[00:07:14] Speaker 01:
to the rules of the ICL, doesn't it have to use the conversation layer under the district court's construction?

[00:07:19] Speaker 00:
Absolutely.

[00:07:20] Speaker 00:
The entire method does, just not the request itself by itself.

[00:07:24] Speaker 01:
Well, the goal satisfaction plan, though, is defined by the service request, correct?

[00:07:28] Speaker 00:
The goal is defined by the service request.

[00:07:30] Speaker 01:
The goal satisfaction plan?

[00:07:31] Speaker 00:
The goal.

[00:07:32] Speaker 00:
That's what the claim says.

[00:07:34] Speaker 00:
And the two work together.

[00:07:37] Speaker 00:
So the service request defines what's being asked for.

[00:07:40] Speaker 00:
And the rest of the system then defines how to go get it and to satisfy the request.

[00:07:45] Speaker 00:
So the issue isn't whether the conversational layer is required or even whether it's present.

[00:07:51] Speaker 00:
There's not a meaningful debate, I think, whether the conversational layer is present in the accused system.

[00:07:57] Speaker 00:
There's certainly, exactly according to the court's construction, a set of protocols that ends up producing exactly the same result.

[00:08:05] Speaker 00:
This flow diagram, as I say, is exactly the same

[00:08:08] Speaker 00:
as the patent diagram, or effectively the same.

[00:08:12] Speaker 00:
You get a request.

[00:08:14] Speaker 00:
The system parses that request to make certain that the system understands what it's being asked for.

[00:08:18] Speaker 00:
And then the system sends that out to different agents to satisfy the request.

[00:08:23] Speaker 00:
That's exactly what the flow diagram on page 13 of Alexa describes.

[00:08:28] Speaker 00:
And that's exactly what the patent describes.

[00:08:30] Speaker 00:
So yes, of course, Your Honor, the conversational layer is involved and is required for the claim as a whole, because otherwise it wouldn't work.

[00:08:38] Speaker 00:
But it is not required for the request itself.

[00:08:42] Speaker 00:
The request merely is defining what's being asked for.

[00:08:45] Speaker 01:
I'm not sure if I understand your distinction between the goal and the goal satisfaction plan.

[00:08:51] Speaker 01:
Claim one says, receiving a service request in the form of an arbitrary complex goal expression, and then, quote, interpreting the arbitrarily complex goal expression.

[00:09:01] Speaker 01:
One step of that is constructing the goal satisfaction plan.

[00:09:04] Speaker 01:
So I don't see this.

[00:09:06] Speaker 01:
line you're drawing between the goal and the goal satisfaction plan.

[00:09:10] Speaker 00:
The goal satisfaction plan is something that does not necessarily have to be part of the request.

[00:09:15] Speaker 00:
There's nothing in the claim that says the goal satisfaction plan is part of the request.

[00:09:20] Speaker 00:
And there's nothing in the claim that says the conversational layer has to be part of the request.

[00:09:24] Speaker 01:
One step of constructing

[00:09:27] Speaker 01:
One step, it seems to me, of interpreting the arbitrarily complex goal expression is actually constructing the goal satisfaction plan.

[00:09:34] Speaker 00:
And that happens later.

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

[00:09:36] Speaker 00:
That is not necessarily part of the request.

[00:09:39] Speaker 00:
The request is just, what is the goal?

[00:09:41] Speaker 00:
And that's parsing it to say, let's make sure we understand what the request actually is.

[00:09:47] Speaker 00:
And that's exactly what search does.

[00:09:49] Speaker 01:
But plan one says receiving a service request in the form of an arbitrarily complex goal expression.

[00:09:56] Speaker 00:
Yes.

[00:09:57] Speaker 01:
And interpreting that requires constructing the goal satisfaction plan.

[00:10:05] Speaker 00:
The goal satisfaction plan is how you would execute on it.

[00:10:09] Speaker 00:
Interpreting it really requires understanding what the request is.

[00:10:14] Speaker 00:
The next step of the process, which is all part of the conversational layer, is executing on what that goal is, what that request is.

[00:10:23] Speaker 00:
And there's no doubt that that is required, that you have to figure out how to satisfy the goal.

[00:10:29] Speaker 00:
And that means figuring out which agent is the one that can play Hey Jude and then go talking to that agent and making sure that agent understands that you wanted to play Hey Jude and then playing Hey Jude.

[00:10:42] Speaker 00:
All of that is satisfying the goal.

[00:10:44] Speaker 00:
The goal itself is merely, what is the request?

[00:10:48] Speaker 00:
And that's what surf does, which is to parse the request and make certain the system understands what is being asked for.

[00:10:55] Speaker 00:
And that's common sense.

[00:10:56] Speaker 00:
The goal, the request is a request.

[00:10:58] Speaker 00:
Play Hey Jude.

[00:11:00] Speaker 00:
Let's make sure the system understands what that means.

[00:11:04] Speaker 00:
because maybe the person said it with an accent, maybe the person said it quickly, and so you have to interpret it to make certain that the system is acting on what the right request is, and then you go satisfy that goal by figuring out which agent to do it, making sure you ask for it in the right format, et cetera.

[00:11:23] Speaker 00:
And that is the question of

[00:11:28] Speaker 00:
And as I say, 115 Patent Claim 1 makes clear that the content layer, quote, comprises one or more goals.

[00:11:38] Speaker 00:
So to say that the goals or the request, the request is a goal, to say that the goal has to be in the conversational layer is directly contrary to the claim itself, which says the content layer has the goal.

[00:11:53] Speaker 00:
And there's absolutely nothing

[00:11:55] Speaker 00:
in the claim of the specification, which says that the conversational layer has to be part of that request.

[00:12:01] Speaker 00:
That's simply not something in the claim or the specification.

[00:12:05] Speaker 00:
And in fact, the specification is squarely inconsistent with that, where it says, at column 10 of 115, that preferably the ICL supports expression of goals, i.e.

[00:12:18] Speaker 00:
the requests, in a, quote, under-specified, loosely constrained manner.

[00:12:23] Speaker 00:
The district court's opinion,

[00:12:25] Speaker 00:
requires it to be in a highly constrained, very specified manner.

[00:12:30] Speaker 00:
So the specification is saying we ought to be able to have a request framed in a variety of ways because the whole point of this is Alexa and these systems are supposed to be able to handle

[00:12:40] Speaker 00:
requests in different languages, in different formats.

[00:12:43] Speaker 00:
You might say, what's my itinerary versus what's my schedule?

[00:12:46] Speaker 00:
All of that has to be handled and ultimately responded to the same way.

[00:12:51] Speaker 00:
So when the specification says it should be underspecified, loosely constrained manner for the requests, that is the exact opposite of what the district court require.

[00:13:01] Speaker 00:
The second wrong construction.

[00:13:03] Speaker 01:
Do you intend to save any time for rebuttal?

[00:13:05] Speaker 00:
I absolutely do.

[00:13:06] Speaker 01:
Then you probably ought to sit down, because you're down to two minutes left.

[00:13:09] Speaker 03:
I'll be happy to.

[00:13:10] Speaker 03:
Thank you.

[00:13:11] Speaker 03:
Thank you.

[00:13:11] Speaker 03:
Good morning.

[00:13:12] Speaker 03:
May it please the court?

[00:13:13] Speaker 03:
Dave Haddon for Amazon.

[00:13:15] Speaker 03:
Judge Andrews did not perform any additional claim construction at summary judgment.

[00:13:20] Speaker 03:
He applied the ordinary meaning of the simple English words in, adhering to, and according to.

[00:13:30] Speaker 03:
The claims all require that this ICL is used and that a service request in that ICL is used.

[00:13:40] Speaker 03:
And the service request has to either adhere to, be in, or be according to that language.

[00:13:49] Speaker 03:
And if we look at claim 50 of the 560 patent, which is one of the independent claims that Judge Andrews discussed in his order,

[00:14:00] Speaker 03:
Appendix 82 in the back of the blue brief.

[00:14:04] Speaker 03:
It requires interpreting a service request in order to determine a base goal, the service request adhering to the interagent communication language, the ICL, including a layer of conversational protocol.

[00:14:20] Speaker 03:
And it goes on and says how that is defined by event types and these parameters.

[00:14:27] Speaker 03:
Now, that language, this whole thing

[00:14:29] Speaker 03:
clause regarding the conversational protocol there was added to every independent claim in this case during prosecution for allowance because there were other agent systems that predated this that had agent languages.

[00:14:46] Speaker 03:
And the thin reed that these patents got allowed over was this conversational protocol there and the fact that it has these parameters that Your Honor Judge Moore mentioned that are used to

[00:14:59] Speaker 03:
determine this goal satisfaction plan, and that those parameters are part of this conversational layer.

[00:15:07] Speaker 03:
Now, Judge Andrews construed this conversational protocol layer based on the specification as being a layer of rules that define the structure of interagent communications.

[00:15:21] Speaker 01:
And that's not appealed, right?

[00:15:23] Speaker 03:
Excuse me.

[00:15:23] Speaker 01:
That's not appealed?

[00:15:24] Speaker 03:
That is not appealed.

[00:15:25] Speaker 01:
Correct.

[00:15:26] Speaker 03:
Correct, Your Honor.

[00:15:28] Speaker 03:
Judge Prost noted, right, you need this layer because you need to know what kind of message is being sent between the agents.

[00:15:37] Speaker 03:
That is what these events are.

[00:15:40] Speaker 02:
And I think this comes from the district court that it would be impossible for the receiving agent to understand the message.

[00:15:47] Speaker 02:
Exactly, Roland.

[00:15:48] Speaker 03:
Exactly.

[00:15:49] Speaker 03:
That is the purpose of the conference.

[00:15:50] Speaker 03:
So there are different types of messages these agents can send.

[00:15:53] Speaker 03:
One type of message is this service request.

[00:15:56] Speaker 03:
And a service request is identified in the ICL by a message type within the conversational protocol layer.

[00:16:05] Speaker 03:
And we can look at, that's actually described, I'm sorry to switch specifications, but it's described in the, the specifications are the same, but it's in the top of column 11 of the 115 path.

[00:16:21] Speaker 03:
And it explains that, for example, the agent library procedure, and this is in line two, OAA solve can be used by an agent to request services of other agents.

[00:16:33] Speaker 03:
That's exactly the service request that we're talking about in these claims.

[00:16:38] Speaker 03:
And it says, a call to that function, OAA solve, within the code of agent A results in an event having the form.

[00:16:46] Speaker 03:
And it has this example, EV post solve.

[00:16:51] Speaker 03:
Now, EV stands for event.

[00:16:53] Speaker 03:
Post solve is the event type within the conversational protocol layer that is used to identify this message when it is sent from the agent to the facilitator as being a service request.

[00:17:07] Speaker 03:
That is using the rules of this conversational protocol layer.

[00:17:11] Speaker 03:
Now, there is content, and that's the goal within the parentheses.

[00:17:15] Speaker 03:
But in all uses of the ICL and the specification,

[00:17:20] Speaker 03:
The content layer is embedded within a message defined in the conversational protocol there.

[00:17:26] Speaker 03:
That's how this works.

[00:17:28] Speaker 01:
So when counts... Well, when you say that's how it works, I mean, the difficulty is that there's a difference between saying something must be included and saying something must adhere to.

[00:17:38] Speaker 03:
I understand, but if we go back to the claim of 50 of the 560 patent, it says it has to adhere to the ICL.

[00:17:52] Speaker 03:
And then it says the ICL includes this layer, the communication layer, which are the rules that define the structure of the communications.

[00:18:03] Speaker 01:
Well, doesn't that just mean it has to adhere to the conversation protocol?

[00:18:07] Speaker 03:
It says it has to adhere to the language, and the language has to include.

[00:18:11] Speaker 03:
So I'm just saying, if we take even counsel's example, if this said interpreting a request in the English language, or interpreting a request adhering to the English language, the English language including a layer of grammatical rules, there's no doubt that a request that does not abide by the grammatical rules of English would not meet that requirement.

[00:18:38] Speaker 03:
And that's exactly the same situation we have here.

[00:18:40] Speaker 03:
The conversational protocol layer is not some ancillary thing.

[00:18:45] Speaker 03:
It is the rules that define the structure of the communications in this language, just like grammatical rules in English.

[00:18:54] Speaker 03:
So the plain meaning of this requires that this layer exists.

[00:19:01] Speaker 03:
And as Your Honor pointed out, other elements, once you start interpreting

[00:19:05] Speaker 03:
the request, you need the parameters that are in the conversational layer.

[00:19:11] Speaker 03:
And if this was not a requirement of this claim, if the conversational layer and the parameters were not, this claim would not be allowed if it wasn't a requirement.

[00:19:25] Speaker 03:
Because the only use of the ICL in claim 50 is in the service request.

[00:19:32] Speaker 03:
So if the service request didn't have to abide by the conversational protocol, then that conversational protocol and the parameters and all of the limitations that were required for the claim to issue would not be part of the claim.

[00:19:46] Speaker 01:
I just have a procedural question.

[00:19:48] Speaker 01:
There's another argument we really didn't meaningfully touch on today.

[00:19:52] Speaker 01:
And that is, didn't the district court also grant summary judgment on the notion that the CERF cannot be the claimed ICL request because the CERF is a format, not a language?

[00:20:02] Speaker 03:
So the court did not import a negative limitation.

[00:20:09] Speaker 03:
He did not say a format cannot be a language or a language cannot be a format.

[00:20:14] Speaker 03:
All he did was repeat.

[00:20:16] Speaker 03:
the representation and the statements that played in it.

[00:20:20] Speaker 03:
They said, SURF and BIF are formats.

[00:20:23] Speaker 03:
They are not languages.

[00:20:25] Speaker 03:
And he picked up on the point that they're not languages by their own admission.

[00:20:30] Speaker 03:
And when pushed at the hearing, like making the obvious point, if this SURF is not a language and the BIF is not a language,

[00:20:41] Speaker 03:
The council admitted that.

[00:20:42] Speaker 03:
This is Appendix 38355.

[00:20:47] Speaker 03:
He says, neither is a language.

[00:20:49] Speaker 01:
But didn't they argue that collectively they're all a language?

[00:20:52] Speaker 03:
They argued that.

[00:20:53] Speaker 03:
But when pushed by Judge Andrews, like how could that be?

[00:20:57] Speaker 03:
If you have these two disparate things, a biff and a serf, neither is a language, how can you mush them together and be a language?

[00:21:05] Speaker 03:
They had no answer.

[00:21:06] Speaker 03:
And this is at 38366, ultimately what

[00:21:10] Speaker 03:
IPA's counsel's response was is that the required ICL is, quote, not a thing.

[00:21:19] Speaker 03:
And we agree.

[00:21:20] Speaker 03:
It is certainly not a thing in Alexa.

[00:21:24] Speaker 03:
And to be clear, so what is this serf?

[00:21:27] Speaker 03:
The serf is just an object that includes the words the user spoke.

[00:21:33] Speaker 03:
It is the best interpretation of the audio signal as a sequence of words.

[00:21:40] Speaker 03:
That's it.

[00:21:41] Speaker 03:
It gets passed on to this natural language understanding component and other components in Alexa that then try to figure out what the user wanted to do.

[00:21:51] Speaker 03:
But we're still in English at this point, right?

[00:21:54] Speaker 03:
The surf is a collection of English words.

[00:21:57] Speaker 03:
It is not an agent language.

[00:21:59] Speaker 03:
It doesn't go to a speech lit or skill or anything else that IPA said were agents in this mapping of the claims.

[00:22:08] Speaker 03:
It's just English.

[00:22:10] Speaker 03:
And the patent is very clear that English words are not the ICL, right?

[00:22:14] Speaker 02:
So just to be clear, though, was this an alternative basis for granting summary judgment, or was this just an add-on?

[00:22:21] Speaker 02:
Because that's not necessary.

[00:22:23] Speaker 02:
That issue isn't necessary.

[00:22:24] Speaker 02:
No, that isn't.

[00:22:25] Speaker 02:
I'm just trying to explain why.

[00:22:27] Speaker 02:
Of course.

[00:22:27] Speaker 02:
And it's in the case.

[00:22:30] Speaker 02:
But I'm just wondering what you're saying.

[00:22:31] Speaker 03:
No, it was not an alternative.

[00:22:33] Speaker 03:
The judge relied on our first argument.

[00:22:35] Speaker 01:
It's not an alternative basis?

[00:22:37] Speaker 01:
The district court didn't alternatively

[00:22:39] Speaker 01:
rule on that?

[00:22:41] Speaker 03:
Well, I think the court said that CIRC and BIP were not languages.

[00:22:44] Speaker 03:
And I think that is sufficient.

[00:22:47] Speaker 03:
I don't think the court, the only issue that was addressed in the order is that the service request is not in the ICL or adhering to the ICL.

[00:22:56] Speaker 02:
I wasn't quite clear on the status and stature of that conclusion in the district.

[00:23:02] Speaker 02:
Right.

[00:23:02] Speaker 03:
So I mean, the point was that,

[00:23:09] Speaker 03:
If neither of these things are a language, there's no way to say that just grabbing disparate objects out of the air makes a language.

[00:23:17] Speaker 03:
That was the point that Judge Andrews was making.

[00:23:21] Speaker 03:
And he was making that based on IPA's own admissions.

[00:23:25] Speaker 03:
Let me just finally address briefly this due process notion.

[00:23:31] Speaker 03:
IPA had all kinds of due process.

[00:23:37] Speaker 03:
400 pages of supplemental final infringement contentions on the last day of fact discovery, the last hour of fact discovery.

[00:23:45] Speaker 03:
And Judge Andrews was not happy about that.

[00:23:47] Speaker 03:
He did not strike them.

[00:23:49] Speaker 03:
He left them in the case.

[00:23:51] Speaker 03:
Our expert explained why even in those contentions, there was no consistent mapping of this claim element.

[00:23:59] Speaker 03:
And that was in her opening expert report.

[00:24:06] Speaker 03:
I'll just find you a site.

[00:24:10] Speaker 03:
So she had a heading, Alexa does not have an agent language, and that is at appendix 21906.

[00:24:16] Speaker 03:
She also explained why the combination of this surf object and this bif did not meet the conversational protocol layer.

[00:24:27] Speaker 03:
That is in appendix 24461.

[00:24:31] Speaker 03:
She also explained why the surf object itself cannot be a service request.

[00:24:37] Speaker 03:
And that is in appendix 24470271 and 21962.

[00:24:43] Speaker 03:
And because we're in Delaware, IPA had the opportunity to provide a reply infringement report.

[00:24:50] Speaker 03:
And they did.

[00:24:51] Speaker 03:
So they had every opportunity to respond.

[00:24:55] Speaker 03:
And in the reply report, they kind of

[00:24:57] Speaker 03:
made clear for the first time that they were relying solely on this SERF as the service request.

[00:25:05] Speaker 03:
So after that, we moved for summary judgment.

[00:25:08] Speaker 03:
And this argument was in our opening brief.

[00:25:12] Speaker 03:
And that is at Appendix 19955.

[00:25:20] Speaker 03:
It was in our reply brief at Appendix 3800A.

[00:25:27] Speaker 03:
And before the oral argument, Judge Andrews asked the parties to rank their arguments, to order them.

[00:25:34] Speaker 03:
And this was our first argument, the first ranked argument.

[00:25:39] Speaker 03:
So they had every opportunity to respond.

[00:25:42] Speaker 03:
And in fact, they put in an additional declaration from their expert responding to our summary judgment motion so that they went beyond their expert report to respond.

[00:25:55] Speaker 03:
And so they had every opportunity.

[00:25:57] Speaker 03:
So there was no due process violation.

[00:25:59] Speaker 03:
There was no surprise claim construction.

[00:26:02] Speaker 03:
And there was no importing of a negative limitation.

[00:26:07] Speaker 03:
Judge Andrews merely relied on their own admissions.

[00:26:11] Speaker 03:
That what they're pointing to, the SERF, is not a language.

[00:26:14] Speaker 03:
And it does not have, in fact, any of the requirements of the ICL.

[00:26:19] Speaker 03:
That's one point that maybe is not clear from their brief.

[00:26:23] Speaker 03:
But again, at the claim construction argument,

[00:26:27] Speaker 03:
their counsel admitted, and this is at Appendix 38355.

[00:26:38] Speaker 03:
Mr. Skirmod, their counsel, said that correct, the SERP portion of Alexa's Interagent Communication Language is not the portion of the ICL that has the layer of conversational protocol and content protocol.

[00:26:51] Speaker 03:
It's never been argued that way.

[00:26:53] Speaker 03:
It's always been that those are in the BIF.

[00:26:55] Speaker 03:
So in fact, at the end of the day, they pointed to nothing in the linear agent communication language that is actually part of the SERF, which they said is the service request that has to adhere to that language.

[00:27:09] Speaker 03:
If you have no other questions, I'll take that.

[00:27:12] Speaker 01:
OK.

[00:27:12] Speaker 01:
Thank you, Mr. Hathaway.

[00:27:13] Speaker 01:
Thank you, Madam.

[00:27:13] Speaker 01:
Mr. Powers, you have some rebuttal time.

[00:27:15] Speaker 00:
Thank you, Your Honor.

[00:27:16] Speaker 00:
Council began by saying that the district court merely applied the ordinary meaning of ICL.

[00:27:22] Speaker 00:
That's not quite accurate.

[00:27:24] Speaker 00:
What happened was the parties agreed that this adhering to language, that's its issue here, was subject to ordinary meaning.

[00:27:32] Speaker 00:
Neither side said what the ordinary meaning was.

[00:27:35] Speaker 00:
The district court's terse opinion does not purport to rely upon any evidence of ordinary meaning.

[00:27:40] Speaker 00:
And Amazon offered no evidence of ordinary meaning.

[00:27:43] Speaker 00:
The only evidence of ordinary meaning came from our expert, which is utterly, irreconcilably inconsistent with the district court's decision imposing these two limitations.

[00:27:55] Speaker 00:
Council also argued that surf is not a language.

[00:27:58] Speaker 00:
True, SURF is a format.

[00:28:00] Speaker 00:
But the claim does not require that SURF be a language or that the request be a language.

[00:28:06] Speaker 00:
The clear distinction is it merely requires that it be adhering to a language, consistent with that language, something that follows the language.

[00:28:15] Speaker 00:
And there really isn't a dispute that that is true.

[00:28:18] Speaker 00:
Counsel relies on the top of column 11 of the 115 patent to say that this is somehow inconsistent or supports the district court's claim construction.

[00:28:28] Speaker 00:
If you look at the bottom of column 10, it says that's merely one example of a preferred embodiment.

[00:28:33] Speaker 00:
That is far, far, far from the restrictive language this court requires if you're going to limit otherwise broad claim language by imposing a limitation from the specification.

[00:28:43] Speaker 00:
With regard to the question of the

[00:28:46] Speaker 00:
format versus language question, which Your Honor asked.

[00:28:50] Speaker 00:
That one, our expert resolved conclusively.

[00:28:54] Speaker 00:
Our expert makes clear that, well, A, the district court did, in fact, rule that as a basis for summary judgment.

[00:29:00] Speaker 00:
The exact quote from his opinion is, sir, it cannot be an ICL service request.

[00:29:05] Speaker 00:
because SERF is a format, not a language.

[00:29:08] Speaker 00:
SERF doesn't have to be a language.

[00:29:09] Speaker 00:
It merely has to adhere to it.

[00:29:11] Speaker 00:
And SERF is a format.

[00:29:13] Speaker 00:
But the claims specifically say, 115 patent.

[00:29:17] Speaker 00:
Claim what?

[00:29:18] Speaker 00:
Claim, well, let's see, yeah, claim

[00:29:23] Speaker 00:
The 105 patent specifically makes clear that a format can be a service request.

[00:29:29] Speaker 00:
It specifically calls a service request submitted in a format.

[00:29:33] Speaker 00:
I believe that's claim 35, 36, and 29.

[00:29:35] Speaker 00:
And our expert, Dr. Medvedich, declaration goes on to talk, for example, about the Java language.

[00:29:43] Speaker 00:
And the Java language is comprised of many formats, just as this ICL is.

[00:29:49] Speaker 00:
So the idea that formats can't make up part of a language is simply untrue.

[00:29:53] Speaker 00:
There's no support for it.

[00:29:55] Speaker 00:
And our expert makes quite clear why that's true.

[00:29:58] Speaker 00:
With regard to the due process issue,

[00:30:01] Speaker 00:
There was absolutely no notice that this was a claim construction issue that we should be responding to.

[00:30:05] Speaker 00:
We had no opportunity to provide alternate infringement theories.

[00:30:09] Speaker 00:
We had no opportunity to write doctrine of equivalence theories with regard to this claim construction.

[00:30:14] Speaker 00:
This claim construction came for the first time in the summary judgment order.

[00:30:19] Speaker 00:
And that's now not how district courts should be run.

[00:30:22] Speaker 00:
You have a claim construction process where the parties identify the terms for construction.

[00:30:26] Speaker 00:
Yes, that happened here.

[00:30:28] Speaker 00:
The parties said, this is plain meaning.

[00:30:30] Speaker 00:
And then you have a process whereby you are.

[00:30:33] Speaker 01:
On A19955 of their original summary judgment brief, they raised the argument that Amazon does not infringe because the claims require the service request to, quote, meet all the requirements of the ICL, end of quote, which they said repeatedly included using the conversational layer.

[00:30:49] Speaker 01:
And then you responded to it on A28843 through 44.

[00:30:55] Speaker 01:
And then the district court adopted virtually verbatim

[00:30:58] Speaker 01:
the language in Amazon's brief in its actual opinion with regard to the construction.

[00:31:03] Speaker 01:
So I don't know how you can say it wasn't raised and you didn't have an opportunity to respond.

[00:31:08] Speaker 01:
On the pages I cited, it seems like it was raised.

[00:31:11] Speaker 01:
You responded.

[00:31:12] Speaker 01:
And the district court's opinion virtually quoted the argument they made and found in their favor.

[00:31:17] Speaker 00:
That one throwaway sentence in the middle of a different argument is not how claim construction should be done in the district court.

[00:31:24] Speaker 00:
There was a claim construction process well before this.

[00:31:27] Speaker 01:
The term that was... You referred to it as one throwaway argument.

[00:31:29] Speaker 01:
Did you or did you not, on two pages of your responsive opposition, respond to the argument?

[00:31:35] Speaker 00:
We did.

[00:31:35] Speaker 01:
In 28843 to 44, so you responded.

[00:31:38] Speaker 00:
We did, as a factual note.

[00:31:39] Speaker 01:
So you can't say you weren't one notice and didn't have an opportunity to respond because you saw it.

[00:31:44] Speaker 01:
And you responded.

[00:31:45] Speaker 00:
What I'm saying, it's not that we didn't respond.

[00:31:47] Speaker 00:
We did.

[00:31:47] Speaker 00:
We responded in those two paragraphs.

[00:31:49] Speaker 00:
What we didn't have was an opportunity to argue a full claim construction issue to the district court.

[00:31:54] Speaker 00:
This one throwaway sentence is not a claim construction, a brief.

[00:31:58] Speaker 01:
You responded to it.

[00:31:59] Speaker 01:
You had notice.

[00:32:00] Speaker 01:
You had an opportunity to respond.

[00:32:02] Speaker 01:
You, in fact, did respond.

[00:32:04] Speaker 01:
I think our time is up.

[00:32:05] Speaker 01:
If you have a final thought, please go ahead.

[00:32:07] Speaker 00:
Thank you.

[00:32:07] Speaker 00:
All of that is true, but that is not how claim construction should be done in the district court.

[00:32:11] Speaker 00:
That was not a claim construction argument.

[00:32:13] Speaker 00:
That was a non-infringement argument.

[00:32:15] Speaker 00:
And the non-infringement argument was baseless because the parties had agreed that claim meaning applies, not some other construction.

[00:32:22] Speaker 00:
Our point is not that the issue wasn't raised.

[00:32:24] Speaker 00:
Our point is, if the district court is going to adopt a claim construction the parties have not argued for, we ought to have some process to debate that claim construction.

[00:32:32] Speaker 00:
We did not.

[00:32:32] Speaker 01:
Thank you.

[00:32:33] Speaker 01:
We thank both counsel.

[00:32:34] Speaker 01:
This case is taken under submission.