[00:00:00] Speaker 03:
The next case is also WSOU Investments versus Google, 2022, 1064.

[00:00:09] Speaker 03:
Mr. Coyde, is it?

[00:00:10] Speaker 03:
Coyde.

[00:00:11] Speaker 03:
Coyde.

[00:00:12] Speaker 01:
Thank you.

[00:00:13] Speaker 01:
Good morning.

[00:00:13] Speaker 01:
May it please the Court?

[00:00:15] Speaker 01:
I'll take Your Honor's instruction to not try to be repetitive here, but also keeping in mind that there should be a case-by-case analysis of each one.

[00:00:24] Speaker 01:
Let me just kind of synthesize the issues.

[00:00:27] Speaker 01:
This is addressed in our brief.

[00:00:28] Speaker 01:
This is focused on kind of the judge's reliance on DIFAN 1 and how that caused a lot of issues here.

[00:00:36] Speaker 01:
In DIFAN 1, which issued just four months before the Markman hearing, it included footnote four, which is reproduced on page 11 of our reply brief.

[00:00:47] Speaker 01:
stated, were the court to consider mobile device to be sufficient structure for code, then the applicant could simply recite two nonce words, processor and code, together in a claim to essentially write the claim in a means plus function format without being subject to 112.6.

[00:01:04] Speaker 01:
So two things to note here, I think, Your Honor, because it's telling on what the judge's reasoning was.

[00:01:10] Speaker 01:
First, the district judge presupposes without citing any authority of this court,

[00:01:17] Speaker 01:
that processor is a non-squared.

[00:01:19] Speaker 01:
This is something just kind of as stated in a conclusory assumption.

[00:01:23] Speaker 01:
And second, the way this footnote is worded, it says kind of like, well, you can't just add these two when he considers non-squared, or else it won't be subject to 112.6.

[00:01:34] Speaker 01:
So this footnote reveals the judge's mindset that the default is 112.6.

[00:01:40] Speaker 01:
He kind of assumes 112.6 is going to apply.

[00:01:45] Speaker 01:
That, quite Google cited that and relied it, DIFAN 1, on its reasoning.

[00:01:50] Speaker 01:
I heard opposing counsel state that they're trying to distinguish DIFAN 2, this court's, what I'm calling this court's DIFAN decision.

[00:02:01] Speaker 01:
But they embraced it below, and we put that in our briefs.

[00:02:06] Speaker 01:
So what was the impact of doing that?

[00:02:09] Speaker 01:
They cited it.

[00:02:09] Speaker 01:
The judge, just as he did, first he inverted the presumption.

[00:02:15] Speaker 01:
Not only did he fail to apply it, which was an issue in VDPP, he inverted it.

[00:02:22] Speaker 01:
He said he kind of treated the terms as possibly means plus function.

[00:02:27] Speaker 01:
He treated them as something that here's Wausau's argument why it doesn't apply.

[00:02:39] Speaker 01:
He kind of twisted the presumption.

[00:02:43] Speaker 01:
Second, he failed to apply a case-by-case analysis and applied a categorical rule.

[00:02:48] Speaker 02:
Can I ask you a question?

[00:02:50] Speaker 02:
Yes.

[00:02:51] Speaker 02:
One of the struggles I'm having with this case is that if I look, there's certain things under our framework that we look to to see whether a particular language that isn't using the word means but something that could be construed as means to determine whether it's a nonce word or whether it can note structure.

[00:03:13] Speaker 02:
is to look at the specification.

[00:03:15] Speaker 02:
And in this case, for example, on a collaborative application management processor configured to do certain things in the claim, when I look to the specification to see what it says about that, it uses a different word.

[00:03:32] Speaker 02:
It says collaborative application management means.

[00:03:35] Speaker 02:
That's what it uses throughout the specification to say what this processor is.

[00:03:41] Speaker 02:
It's a means.

[00:03:43] Speaker 02:
It's kind of backwards from 112.6.

[00:03:46] Speaker 02:
But that's one of the things that I think weighed into the distrovert's mind when the distrovert reached the conclusion it did.

[00:03:55] Speaker 02:
And I have to say it's weighing on mine too.

[00:03:57] Speaker 02:
So how specifically do you respond to the point that when your specification is referring to this limitation in your claim, that it's referring to it as a means, which doesn't connote structure?

[00:04:11] Speaker 01:
Well, sure.

[00:04:13] Speaker 01:
uh... can be of course as you said on this this could be broader than the claims go the claim was then amended to to recite processor what is a processor in the context of this case where the only thing we see that that the patent teaches that it could be is a means well okay i would approach it this way because if if the word means was used and it became a means in the claim and i would agree that we would have the presumption

[00:04:41] Speaker 01:
of 112.6 under the case law.

[00:04:44] Speaker 01:
Here, processor was used.

[00:04:48] Speaker 01:
So there's a presumption against 112.6 applying.

[00:04:52] Speaker 01:
Under cases like Apex, Google came forward with no evidence that processor in this context.

[00:05:00] Speaker 02:
Can I ask you this?

[00:05:01] Speaker 02:
Sure.

[00:05:01] Speaker 02:
Isn't specification some evidence?

[00:05:04] Speaker 02:
I mean, they came forward with your specification.

[00:05:07] Speaker 01:
But that doesn't, specification just says what

[00:05:10] Speaker 01:
If anything, it's saying, OK, well, there's a word means in the process.

[00:05:13] Speaker 01:
It doesn't say this is the posita's understanding of the difference between means and processor.

[00:05:19] Speaker 01:
So if they had come forward, which they didn't, and said, OK, in this context, with a declaration of a posita saying, OK, in this context, looking at it, processor, when I read the patent, does not mean something that is a nonce word or something does not connote structure.

[00:05:38] Speaker 01:
But they didn't do that.

[00:05:40] Speaker 01:
You know, we just have, we got here today because the district judge just equated processor categorically as an answer across all these cases and just kind of ran roughshod over that.

[00:05:55] Speaker 01:
He didn't consider in the context of that.

[00:05:58] Speaker 02:
I understand your view.

[00:05:59] Speaker 02:
I mean, I would say for purposes of this argument, because it's a de novo question,

[00:06:05] Speaker 02:
that we can just really focus on instead, focus on the merits of each particular case, and why in this case, processor in your view is structural.

[00:06:17] Speaker 02:
Your view, I guess, is that just because the specification says means that still a person of ordinary skill and art would connote structure with processor.

[00:06:28] Speaker 02:
What evidence do you have of that?

[00:06:30] Speaker 01:
Again, we don't have any evidence in the form of a declaration.

[00:06:36] Speaker 01:
But again, because means was not recited, they were under cases like APEX required to come forward with evidence that a positor would consider processor in this case to not control structure.

[00:06:49] Speaker 01:
They didn't do that.

[00:06:50] Speaker 01:
So it seems to me right there.

[00:06:53] Speaker 02:
What if I were to say?

[00:06:55] Speaker 02:
The use of the word means in the specification might inform whether or opposed it would think processor and means mean the same thing.

[00:07:02] Speaker 02:
I think the district court said that the specification equates processor with means.

[00:07:07] Speaker 02:
I think something like that.

[00:07:09] Speaker 02:
So what is your response then?

[00:07:11] Speaker 02:
I'm just trying to get a response without worrying.

[00:07:14] Speaker 02:
The burden that that burden of proof you're talking about or the burden

[00:07:18] Speaker 02:
We've said in a couple cases, it's not that strong.

[00:07:20] Speaker 02:
So moving away from that, what other argument do you have?

[00:07:24] Speaker 01:
Well, we also have, again, understanding that cases are case by case.

[00:07:29] Speaker 01:
VDPP stands for an indication that processor connotes structure.

[00:07:34] Speaker 02:
In that case?

[00:07:35] Speaker 01:
In that case, it wasn't stated.

[00:07:37] Speaker 01:
The quote wasn't stated specifically, but of course, it was case by case.

[00:07:42] Speaker 01:
And then there are no other cases that

[00:07:47] Speaker 01:
Google has cited of this court ever finding processes that do not code structure.

[00:07:52] Speaker 01:
So that would be our argument.

[00:07:54] Speaker 01:
It's more of a legal argument, Your Honor.

[00:07:56] Speaker 04:
In this case, and I'd like to just continue to focus on the last limitation, this collaborative application management process, or configured to manage collaborative applications.

[00:08:10] Speaker 04:
Because it doesn't have the word means, it is presumptively structure.

[00:08:15] Speaker 04:
So we start with that.

[00:08:16] Speaker 04:
It's structure.

[00:08:18] Speaker 04:
And then we look to, since there's no extrinsic evidence, we look to the intrinsic record to see whether this language fails to inform one of skill and the art that this defines a specifically definite structure.

[00:08:40] Speaker 04:
And I have no idea what this means.

[00:08:44] Speaker 04:
And even if I look to the specification, I'm having trouble finding anything to suggest to one of ordinary skill in the art.

[00:08:54] Speaker 04:
That is, this recites a sufficiently definite structure.

[00:09:00] Speaker 04:
I have no idea what managing collaborative applications means.

[00:09:05] Speaker 04:
This limitation is moving away somewhat from just the word processor, looking at the limitation in its full form.

[00:09:20] Speaker 04:
Don't you have a problem there with the fact that the specification comes up short in

[00:09:30] Speaker 04:
informing one of skill in the art that this recites a sufficiently definite structure.

[00:09:36] Speaker 01:
Well, I do believe the specifications we addressed in our blue brief does discuss the details of what the collaborative application management processor entails.

[00:09:49] Speaker 01:
Or take me to it.

[00:09:51] Speaker 01:
Sure.

[00:09:53] Speaker 01:
Let me grab one paper.

[00:09:58] Speaker 04:
Apologies, Your Honor.

[00:10:00] Speaker 04:
I mean, there's some discussion about databases, 107, 108, 109, things like that.

[00:10:06] Speaker 04:
But I don't see anything that talks about a processor, that talks about what managing collaborative applications means.

[00:10:16] Speaker 01:
So help me out.

[00:10:17] Speaker 01:
Well, there is no, to be clear, and I think we said this and admitted this earlier, there is no discussion of processor, the word processor in the specification.

[00:10:25] Speaker 01:
So we would concede that.

[00:10:27] Speaker 01:
But we pointed to pages 32 to 33 for collaborative application management.

[00:10:35] Speaker 01:
That kind of described it.

[00:10:36] Speaker 01:
I don't want to kind of read it.

[00:10:40] Speaker 01:
I'll just verbatim into the record.

[00:10:42] Speaker 01:
But we have a block quote on page 32 citing APPX 427.

[00:10:49] Speaker 01:
And this is page 32 of what?

[00:10:52] Speaker 01:
Our blue brief, Your Honor.

[00:10:54] Speaker 01:
Blue brief.

[00:10:54] Speaker 02:
Don't you want to point us to the patent itself?

[00:10:58] Speaker 01:
OK, there's also what that does is it's a 585.

[00:11:02] Speaker 01:
It's pointing to column 321 to 31.

[00:11:05] Speaker 01:
You see that side at the end of the block, Your Honor?

[00:11:08] Speaker 04:
Yeah, that was the section I was referring to.

[00:11:10] Speaker 01:
Yeah, yeah.

[00:11:10] Speaker 01:
And then we also talk and recite to it.

[00:11:13] Speaker 01:
That doesn't give me a whole lot of help.

[00:11:16] Speaker 01:
Well, it's certainly referring to databases which are structural.

[00:11:22] Speaker 04:
I mean, what's a collaborative application, and how does one manage it?

[00:11:30] Speaker 01:
Again, we highlighted the words enabling recording of data, enabling storage of data for RSS flows, enabling, among other things, storage of task information.

[00:11:41] Speaker 01:
There's a fulsome discussion of it there, Your Honor.

[00:11:44] Speaker 03:
You just made a very serious concession, which is that the word processor, which is in the claim, doesn't appear in the patent.

[00:11:53] Speaker 01:
I think that is accurate.

[00:11:56] Speaker 01:
And we acknowledge that in our briefs.

[00:12:01] Speaker 01:
But the other thing to get to, Your Honor, just to briefly, I'm not even quoting in my rebuttal time, but also we did take the position here on what the structure is below.

[00:12:11] Speaker 02:
What did you say it was?

[00:12:13] Speaker 01:
For collaborative, if you look at APX 660, which is our... Sorry, could you say that again?

[00:12:18] Speaker 02:
APX 660.

[00:12:19] Speaker 01:
Sorry.

[00:12:19] Speaker 01:
APX 660, which summarizes the party's positions.

[00:12:23] Speaker 01:
We have our structure laid out in a table form.

[00:12:26] Speaker 01:
The court lays it out.

[00:12:28] Speaker 01:
And again, they didn't come forward with any evidence of an expert saying of what the corresponding structure should be.

[00:12:34] Speaker 01:
So they don't have the view of opposito.

[00:12:38] Speaker 01:
And that needs to be proven by clear and convincing evidence.

[00:12:41] Speaker 01:
That's not shown.

[00:12:43] Speaker 01:
So with that, I'll kind of rest here, stay the rest of my time, and full rebuttal.

[00:12:49] Speaker 02:
Can I ask you something?

[00:12:50] Speaker 02:
I'm sorry.

[00:12:51] Speaker 01:
Sure, of course.

[00:12:55] Speaker 02:
I find it interesting that in this specification, you are saying that the processor is databases.

[00:13:02] Speaker 02:
Is that what you're saying when you turn to column three and you tell us to look at this thing that refers to databases?

[00:13:08] Speaker 02:
That that's your view?

[00:13:09] Speaker 02:
Because I don't usually think of a processor as being databases.

[00:13:13] Speaker 01:
No, I'm sorry, Your Honor.

[00:13:14] Speaker 01:
I didn't hear what you said.

[00:13:15] Speaker 02:
You said I said the processor was... Is it your view that a processor comprises databases or is databases?

[00:13:23] Speaker 02:
Is that your view when you turn to column three and referring to the patent and where it says it refers to a number of different databases?

[00:13:32] Speaker 01:
That's what you turned us to when we were looking at what is the structure for your... Well, it includes the communication with those databases, yes, Your Honor.

[00:13:41] Speaker 02:
Does it include databases?

[00:13:43] Speaker 01:
Let me see what you said.

[00:13:45] Speaker 01:
Hang on a second.

[00:13:50] Speaker 03:
That's sort of a basic technical question.

[00:13:53] Speaker 03:
Does the processor include databases?

[00:14:00] Speaker 03:
The store was asking you, is that what you said?

[00:14:03] Speaker 03:
It sounded like that's what you said.

[00:14:05] Speaker 01:
Well, we did take the position below that the structure with the databases 107, 108, 109, various databases.

[00:14:12] Speaker 02:
So in your view, in this case, in the context of this patent, a processor is databases.

[00:14:19] Speaker 01:
That's the structure.

[00:14:20] Speaker 01:
Yeah, that's what I mean.

[00:14:22] Speaker 02:
We're talking about the structure.

[00:14:23] Speaker 02:
Whether processor is a word that connotes structures is a big issue in this case.

[00:14:28] Speaker 01:
Right, I understand, Your Honor.

[00:14:30] Speaker 01:
The databases and also the software to kind of

[00:14:36] Speaker 01:
communicate with us.

[00:14:37] Speaker 02:
It doesn't say that in your proposed construction here on page A660.

[00:14:42] Speaker 01:
That's true, Your Honor.

[00:14:43] Speaker 03:
OK.

[00:14:46] Speaker 03:
We will give you two and a half minutes of rebuttal time.

[00:14:50] Speaker 01:
Thank you, Your Honor.

[00:14:53] Speaker 03:
Welcome back, Mr. Mayavice.

[00:14:55] Speaker 00:
I'm back, Your Honors.

[00:14:56] Speaker 00:
I will try to be as efficient as possible.

[00:15:01] Speaker 00:
Here, Your Honors, the district court

[00:15:03] Speaker 00:
rounded its analysis for all three terms in both the claim language and the specification.

[00:15:09] Speaker 00:
And in doing so, the district court found that in the context of the 585 patent, the specification, the interchangeable use of the terms means, agent, and module in the specification with the term processor in the claims weighed in favor of applying section 112.6.

[00:15:27] Speaker 00:
And that is fully supported by the record.

[00:15:30] Speaker 00:
Now, Mr. Coyote made an argument that the district court here somehow shifted the burden.

[00:15:36] Speaker 00:
And I want to address that because I think that that is plainly incorrect.

[00:15:40] Speaker 00:
Here, the court repeatedly noted that the presumption against section 112.6 exists when there's an absence of the word means.

[00:15:48] Speaker 00:
The court expressly noted that the presumption here applies.

[00:15:52] Speaker 00:
The court repeatedly identified that controlling legal standard

[00:15:56] Speaker 00:
for overcoming the presumption.

[00:15:58] Speaker 00:
And contrary to plaintiff's argument, the court did not apply categorical rule.

[00:16:02] Speaker 00:
In fact, the court said there is no categorical rule and evaluated the substance of each patent and each term, specifically context dependent on the specification.

[00:16:13] Speaker 00:
With that, I would just like to focus briefly on the collaborative application management processor.

[00:16:19] Speaker 00:
As Your Honors pointed out, the district court here noted that

[00:16:24] Speaker 00:
WSU's own citations to the intrinsic record indicate that the only discussion of collaborative application management in a specification refers to a collaborative application management means.

[00:16:37] Speaker 00:
The term processor standing alone or modified by any functional adverbs does not appear anywhere in the specification.

[00:16:46] Speaker 00:
The district court further found that the claimed function here, which is collaboratively

[00:16:53] Speaker 00:
managing an application was self-referential.

[00:16:56] Speaker 00:
It just simply repeated the functional adverbs and bolstered the conclusion that the term is subject to 112.6, and the court determined there was no corresponding structure for any of these three terms.

[00:17:10] Speaker 04:
What's your view on whether the fact that the specification refers to this as a means and the claim refers to it as a processor, does that

[00:17:23] Speaker 04:
support the argument that the patentee was making a distinction and deliberately avoided 112?

[00:17:32] Speaker 04:
Or does it support the view that the patentee used those two words equivalently?

[00:17:39] Speaker 00:
In my view, consistent with the district courts, I believe the patentee used the terms equivalently.

[00:17:46] Speaker 00:
And we know that.

[00:17:47] Speaker 00:
because all the functional modifiers are virtually identical in the specification and the claim language.

[00:17:58] Speaker 00:
Now, the patent team may have sought to avoid means plus function by replacing means or module with the term processor in the claim language, but that simply creates the presumption against 112.6.

[00:18:12] Speaker 00:
It does not

[00:18:14] Speaker 00:
eliminate or the applicability of 112.6, it sets the context and the framework.

[00:18:19] Speaker 00:
And here, frankly, given the specific, the juxtaposition between the specification and the claim language, again, this is very similar to what this court addressed in Williamson and in genera, which is it seems like an attempt to engage in purely functional claiming while avoiding the scope and requirements of section 112.6.

[00:18:41] Speaker 00:
If there's no further questions, Your Honor, I'll give you the court back its time.

[00:18:45] Speaker 04:
No penalty giving back time.

[00:18:48] Speaker 04:
Thank you.

[00:18:50] Speaker 03:
Thank you, Your Honor.

[00:18:51] Speaker 03:
Mr. Coyote has some rebuttal time.

[00:19:03] Speaker 01:
Thank you, Your Honor.

[00:19:05] Speaker 01:
I guess to address, the one major I should want to address is your question, Judge Lane.

[00:19:12] Speaker 01:
whether the terms were used interchangeably or whether it was... I heard counsel say, at least acknowledged, that it might have been the possibility that the applicant intended to avoid 112.6 by doing it.

[00:19:26] Speaker 01:
I would agree.

[00:19:27] Speaker 01:
It was done through an amendment.

[00:19:30] Speaker 01:
It wasn't something that came in the original claims.

[00:19:33] Speaker 01:
So there was certainly an amendment.

[00:19:34] Speaker 01:
And this case was not cited in this case, but in the 1066-67 case, Nature Simulation talked about giving way to, I'm sorry, not Nature Simulation, but there's cases in that case would be cited about the applicant's choice.

[00:19:53] Speaker 01:
So being given some weight.

[00:19:57] Speaker 01:
And so I think that should be accorded something here.

[00:19:59] Speaker 01:
There would be no reason to just do it out of the blue.

[00:20:02] Speaker 01:
If the applicant intended to stay with means, they would have left it that way.

[00:20:07] Speaker 01:
We would be in a different world.

[00:20:09] Speaker 01:
We would be down a 1-12-6 path.

[00:20:11] Speaker 04:
Even if that is the proper interpretation, I guess your adversary would say, well, the amendment just didn't go far enough.

[00:20:21] Speaker 04:
just to substitute the word processor?

[00:20:25] Speaker 01:
Well, I mean, you asked in another line of questioning of what else more could they have done.

[00:20:29] Speaker 01:
And I don't know what else more they could have done.

[00:20:31] Speaker 01:
If I was a prosecutor, what else more could you have done then to signal to say, I'm going to include something that I think is structural intentionally to signal to the whole world that I'm moving it over to the structural world.

[00:20:45] Speaker 01:
So again, that's, I think, one of the core issues is that the amendment actually demonstrates that it wasn't an interchangeability, that there was a decision to take it over to the structural side.

[00:21:02] Speaker 01:
With that, I'll just ask for the court to reverse.

[00:21:06] Speaker 01:
Thank you very much.

[00:21:08] Speaker 03:
Thank you.

[00:21:09] Speaker 03:
And that case is submitted as well.