[00:00:00] Speaker 02:
Our fourth case is also, of course, WSLU Investments versus Google, 2022, 1066, and 1067.

[00:00:10] Speaker 02:
Mr. Corte.

[00:00:13] Speaker 01:
Thank you, Your Honor.

[00:00:15] Speaker 01:
I will try to start talking about these, but these are addressing two very different issues, two cases.

[00:00:22] Speaker 01:
So if Your Honors want me to direct to one or the other, I'll try to start.

[00:00:26] Speaker 01:
And as we noted in our brief, we see the commonality of the errors here is that the judge employed kind of simplistic rules as shortcuts.

[00:00:36] Speaker 01:
For the alerting unit, Google encouraged the judge to treat unit as a classic nonce word, similar to what they kind of employed for the processor terms.

[00:00:46] Speaker 01:
And the judge bought into it.

[00:00:48] Speaker 01:
But none of the authority cited by Google established the unit as a nonce word.

[00:00:53] Speaker 01:
Again, we understand that everything's case by case.

[00:00:56] Speaker 01:
But if you look at the reasoning of DIFAN 2, that was a case that construed a system claim.

[00:01:02] Speaker 01:
And it found, as part of that system, unit terms which it characterized as structural.

[00:01:09] Speaker 01:
And of course, you have terms like central processing unit, graphical

[00:01:14] Speaker 01:
GPU, Graphical Processing Unit, there's no authority that unit is inherently an answer.

[00:01:23] Speaker 01:
And Judge Lynn actually asked a question.

[00:01:25] Speaker 01:
I might have kind of heard what I thought he was asking for, but what type of presidential law would be helpful in this area?

[00:01:32] Speaker 01:
I think one area that would be very helpful would be something clear to say, to disabuse litigants of

[00:01:40] Speaker 01:
or in judges that a nonce word is just like a free pass.

[00:01:48] Speaker 01:
The judge here used the nonce word terminology and he just gave up after that.

[00:01:53] Speaker 01:
He just wanted to find it easy out for you and it.

[00:01:56] Speaker 01:
And so I think if anything, or another way to put it, maybe if you want to do it in case by case, is just to police and guard

[00:02:04] Speaker 01:
kind of be as a gatekeeper to make sure those nonce words don't creep in so all of a sudden, you know, not only is means subject to presumption, but a whole list of other terms, which is kind of going to be ever increasing.

[00:02:16] Speaker 01:
So that would be my suggestion on kind of maybe precedent.

[00:02:20] Speaker 03:
I mean, I've always thought of a nonce word as just a name you put on something to

[00:02:28] Speaker 03:
reflects the conclusion you reach after looking for what that word means.

[00:02:33] Speaker 03:
And if you can't find a meaning other than a generalization of some sort, you conclude that it's just a nonce word.

[00:02:41] Speaker 03:
The problem I see it is that a lot of times people look at words and they start with, okay, that's a nonce word.

[00:02:49] Speaker 03:
Just pull it out of thin air and work from there.

[00:02:53] Speaker 03:
And that to me is backwards.

[00:02:56] Speaker 01:
I agree, Your Honor.

[00:02:57] Speaker 01:
I think that's what happened here with respect to, I mean, I'll just talk about this case with respect to unit.

[00:03:01] Speaker 03:
I mean, we have to look at the word unit.

[00:03:03] Speaker 03:
We have to look at the word alerting.

[00:03:05] Speaker 03:
And we have to assess what significance does that expression have to one of ordinary skill in the art.

[00:03:14] Speaker 01:
Right.

[00:03:14] Speaker 01:
And Your Honor, that segues into my next point about alerting unit is that here, as we described on page 36 and 37 of our blue brief, a learning unit

[00:03:26] Speaker 01:
defines a structure when it says configured to, and then we've highlighted all the alerting that would be configured to issue alert.

[00:03:34] Speaker 01:
It's got, I don't know, like 10 lines of text in it, you know, that we're talking about here, where different things the alerting unit does.

[00:03:42] Speaker 01:
And DIFAN2 at 1368 teaches us that the structured, when structured converting term here unit is coupled with a description of operations, sufficient structural meaning generally will be converted, conveyed to a posita.

[00:03:55] Speaker 03:
Where is the learning unit in Figure 1?

[00:04:18] Speaker 01:
I don't know the answer to that question, Your Honor.

[00:04:21] Speaker 01:
I'm just looking at it right now.

[00:04:22] Speaker 01:
Oops, I'm sorry.

[00:04:23] Speaker 01:
I'm looking at the wrong patent.

[00:04:24] Speaker 01:
Sorry.

[00:04:25] Speaker 01:
Isn't that a problem?

[00:04:27] Speaker 01:
No, hang on.

[00:04:27] Speaker 03:
Let me just look at the right patent before I get to it.

[00:04:32] Speaker 03:
OK.

[00:04:32] Speaker 03:
563.

[00:04:36] Speaker 03:
Make sure I'm looking at the right patent.

[00:04:38] Speaker 01:
Yes, Your Honor.

[00:04:40] Speaker 01:
This is a hard case to brief with the different.

[00:04:46] Speaker 02:
Well, maybe.

[00:04:48] Speaker 02:
Maybe you could come back on the bottle and answer the question.

[00:04:51] Speaker 01:
Sure.

[00:04:51] Speaker 01:
Yeah, it does talk about the mobile phone comprising a central processing unit 10.

[00:04:55] Speaker 01:
And the CPU is equated as the unit.

[00:04:58] Speaker 01:
So I think it would be that.

[00:04:59] Speaker 04:
But let me get... Wait, wait, wait.

[00:05:02] Speaker 04:
This question is pretty important to me.

[00:05:04] Speaker 04:
So I want to know, you're saying it's element 10.

[00:05:07] Speaker 04:
Is it the alerting unit?

[00:05:09] Speaker 01:
We identified the corresponding structure below as the central processing unit 10.

[00:05:16] Speaker 01:
And then we also identified columns 3, 55 to 68.

[00:05:23] Speaker 01:
This is on APPX 663 of the memorandum, where he summarizes what our structure is.

[00:05:34] Speaker 04:
And so figure one, the whole thing that's in the box,

[00:05:38] Speaker 04:
is element 10, so that's the unit?

[00:05:43] Speaker 01:
Yes.

[00:05:48] Speaker 01:
No.

[00:05:53] Speaker 03:
I'm looking to see where in the specification it identifies where the alerting unit is.

[00:06:03] Speaker 03:
I mean, I know what you're arguing, but I'm looking for

[00:06:08] Speaker 03:
the text in the specification.

[00:06:11] Speaker 01:
Right, your honor.

[00:06:15] Speaker 01:
Well, as we described on page 37 of our brief, it talks about in those different types of alarms that are being signaled at columns 3, 5 to 8, 365 to 67, alarms being generated by the mobile phone at 3 to 8 to 12,

[00:06:36] Speaker 01:
four, nine to sixteen, so it's with all the citations there.

[00:06:41] Speaker 03:
Well, yeah, I mean you're attributing different things and characterizing different things, but the question I have is what does the patent say?

[00:06:51] Speaker 01:
Well, okay, I understand what you're saying.

[00:06:53] Speaker 01:
I think that's similar to what Google argued, but then we cited the case law that you don't need the magic incantation of

[00:07:00] Speaker 01:
You know, alerting unit.

[00:07:01] Speaker 01:
You don't need to say it.

[00:07:02] Speaker 01:
And so that's what they focused on.

[00:07:03] Speaker 01:
They looked at, like, when it would help.

[00:07:05] Speaker 04:
Yeah, it would help a lot.

[00:07:07] Speaker 04:
And even so, it's a little unclear to me what you're now pointing to specifically as being what the alerting unit is.

[00:07:16] Speaker 01:
Well, I think it's consistent.

[00:07:18] Speaker 01:
What we're now pointing to is what we pointed to below.

[00:07:20] Speaker 04:
And what you said below was the processor memory and computer program code constitute corresponding structure?

[00:07:28] Speaker 04:
When you say the, which one are you referring to?

[00:07:31] Speaker 01:
I'm sorry, I didn't hear what you said, Your Honor.

[00:07:33] Speaker 04:
I'm just looking at your submission.

[00:07:34] Speaker 04:
It's on page A663, you said before, and you said structure.

[00:07:39] Speaker 04:
The processor, memory, and computer program code constitute corresponding structure.

[00:07:45] Speaker 04:
So I'm asking you, where in the patent will I find the processor, memory, and computer program code that you're referring to?

[00:07:53] Speaker 04:
I'm having a hard time understanding what you're saying to corresponding structure.

[00:07:57] Speaker 01:
Well, again, we pointed to 3.21, which refers to, let me turn to it, a central processing unit 10.

[00:08:14] Speaker 01:
And it talks about, which controls operations of the phone and accords with software stored in the read-only memory 11.

[00:08:23] Speaker 01:
So we did identify that below.

[00:08:25] Speaker 04:
So for the corresponding structure, you just gave one, two, three, four, five sites to different columns and lines in the patent.

[00:08:34] Speaker 01:
They're the same sites that we cited below, Your Honor.

[00:08:36] Speaker 01:
We cited to 321.

[00:08:38] Speaker 04:
Did you ever say exactly what the corresponding structure was in your jail?

[00:08:44] Speaker 04:
Instead of just giving sites, you don't say what you think it is, as you did, for example, in the limitation above.

[00:08:51] Speaker 01:
No.

[00:08:52] Speaker 01:
And below, I think if you're asking me, do we describe it?

[00:08:55] Speaker 01:
Do we name something?

[00:08:56] Speaker 01:
Do we name something?

[00:08:57] Speaker 01:
No.

[00:08:57] Speaker 01:
We point it to column and line size, Your Honor.

[00:09:01] Speaker 04:
Thank you.

[00:09:02] Speaker 01:
Yes.

[00:09:02] Speaker 02:
Counsel, I want to point out to you that in both of these patents, there are claims that expressly use the term means.

[00:09:10] Speaker 02:
So the presumption here goes against you, doesn't it?

[00:09:14] Speaker 02:
Claim 16, issuing means.

[00:09:17] Speaker 02:
issuing an alert, and 24 apparatus comprising three means clauses.

[00:09:27] Speaker 02:
So the presumptions are against you here, right?

[00:09:31] Speaker 01:
Yeah, Your Honor, but in both of those, the parties agree that 112.6 applies.

[00:09:37] Speaker 01:
The issue on those terms is whether there's corresponding structure.

[00:09:42] Speaker 01:
There's no dispute that

[00:09:45] Speaker 01:
You know, one tells six things that express means claims.

[00:09:48] Speaker 01:
Now, I'll briefly address, Your Honor, the one that's universal to the other thing we haven't talked about is the second part term.

[00:09:55] Speaker 01:
And there, we see the error as the court admitted that he did the evaluation solely on the claim language standing alone and nature simulations, which we're calling nature simulations, too, because there was a modification to that.

[00:10:15] Speaker 01:
says that that approach deviates from the standard protocol of this court and violates the rule that claim collection standing alone is not the correct standard of law and contrary to precedent.

[00:10:29] Speaker 01:
Neither side found any case.

[00:10:32] Speaker 01:
We tried to find it, and Google is unable to find it.

[00:10:34] Speaker 01:
But any case it said, just because something is what I would call grammatically nonsensical, that it's indefinite, absent any evidence from oppositor saying so.

[00:10:46] Speaker 03:
We have cited in page one of- You're arguing the claim should be interpreted in a way that would add to the claim limitations about borders.

[00:11:00] Speaker 03:
Essentially, I mean- Those words don't appear in the claim.

[00:11:06] Speaker 01:
Sure.

[00:11:06] Speaker 01:
I understand, Your Honor, but it's in the context of the figures in the description.

[00:11:10] Speaker 01:
I'm trying to determine examples, and this might sound a little silly,

[00:11:14] Speaker 01:
If a mom was to say, everything between mommy and baby is mommy, that doesn't make any sense.

[00:11:22] Speaker 01:
If a pregnant mom pats her belly and says, everything between mommy and baby is mommy, then you understand, okay, she means the space in between.

[00:11:31] Speaker 01:
And so when you look at the figures

[00:11:34] Speaker 01:
when you look at the specification description, which is consistent.

[00:11:37] Speaker 01:
It's not something where there was a different description and a different articulation.

[00:11:43] Speaker 01:
And you look at the prosecutory where the examiner encouraged the applicants to add this language and then also stated that same language in the reasons for allowance.

[00:11:53] Speaker 03:
The problem I have is that we can't rewrite the claim.

[00:11:58] Speaker 03:
I mean, it's pretty clear that

[00:12:01] Speaker 03:
that this was not what was intended.

[00:12:05] Speaker 03:
But the claim is what it is.

[00:12:08] Speaker 01:
I agree the claim is what it is, Your Honor.

[00:12:12] Speaker 01:
I would say this calls it this, I think in DIFFAN, which is a different context, talks about

[00:12:18] Speaker 01:
uh... that claim not being the model of clarity so i would agree this is in the model of clarity that's not the test not the only claim that which is that's not a lot of people out there but that's not the test the test is whether it be skewed the uh... the understandable opposing as we know that they didn't present any positive evidence in the in the speaking of the person still in the office yes i'm sorry your honor you're well into your bottle time okay i'll save the rest of it thank you very much

[00:13:05] Speaker 02:
Council, would you pronounce your name for us, please?

[00:13:07] Speaker 00:
Yes, Your Honor.

[00:13:08] Speaker 00:
It's Sweezy.

[00:13:09] Speaker 02:
Sweezy.

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

[00:13:11] Speaker 02:
Please proceed.

[00:13:12] Speaker 00:
Thank you, Your Honor.

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

[00:13:13] Speaker 00:
May it please the court.

[00:13:15] Speaker 00:
The district court for each of these terms properly considered the intrinsic record and for specific reasons, particular to each claim, properly found them indefinite.

[00:13:25] Speaker 00:
I will focus on the two terms that WSOU's counsel addressed.

[00:13:29] Speaker 00:
but happy to answer questions about the other one.

[00:13:33] Speaker 00:
Starting with the alerting unit term, let me see if I can address the court's questions and the discussion in a few points.

[00:13:41] Speaker 00:
First, the threshold inquiry here is whether alerting unit is a means plus function term.

[00:13:48] Speaker 00:
And it is.

[00:13:49] Speaker 00:
And the district court properly analyzed not just the word unit, but the fact that it is alerting unit configured to issue an alert.

[00:13:58] Speaker 00:
And I think this point really should be undisputed, that alerting unit is a means plus function term.

[00:14:05] Speaker 00:
And I'll give you two reasons.

[00:14:08] Speaker 00:
First, while WSOU pointed to pages 36 and 37 of its brief as to claim language that it said made this structural, those are exactly the same limitations that WSOU agrees are functional, because those same limitations are in

[00:14:28] Speaker 00:
Claim 16 that uses the issuing means term instead of a learning unit.

[00:14:33] Speaker 00:
So at page 41 of WSOU's brief, it says, the district court correctly found that these two limitations are functions, initiating a connection to another communication terminal over a network and causing the signaling means to locally signal to the user.

[00:14:54] Speaker 00:
The language that follows alerting unit, alerting unit configured to, is admitted to be functional.

[00:14:59] Speaker 00:
And it is functional.

[00:15:01] Speaker 00:
It's simply reciting functions.

[00:15:03] Speaker 00:
As to alerting unit itself, in WSOU's reply brief at page 10, at the bottom, final sentence, it says WSOU never argued that alerting, what Google calls a prefix, impart in structure.

[00:15:24] Speaker 00:
but instead highlighted other language.

[00:15:26] Speaker 00:
And that other language is the language I just walked the court through.

[00:15:31] Speaker 00:
So this really shouldn't be a dispute that a learning unit is a needs plus function claim.

[00:15:35] Speaker 00:
And just to confirm it, going back to some references earlier about when the patentee uses a term interchangeably with means, that is what we have here.

[00:15:46] Speaker 00:
I've compared claim one to claim 16.

[00:15:49] Speaker 00:
And other than the alerting unit term and the issuing means term,

[00:15:53] Speaker 00:
They are identical.

[00:15:54] Speaker 00:
I think one term uses V and another term uses A in one instance.

[00:15:58] Speaker 04:
Why isn't, assuming that we would agree with you that it's written in 112, six paragraph language, why wouldn't we then find that there's sufficient structure based on the disclosure and the specification that WSOU has pointed to?

[00:16:17] Speaker 00:
Yes, Your Honor.

[00:16:18] Speaker 00:
And this will address both the alerting unit term and the issuing means term together.

[00:16:23] Speaker 00:
So a few points there, Your Honor.

[00:16:25] Speaker 00:
There is no depiction of an alerting unit in the patent.

[00:16:29] Speaker 00:
The patent only discusses alerting unit at columns two and three.

[00:16:33] Speaker 00:
And when it discusses alerting unit at those passages, it's simply restating the same claim language that is functional.

[00:16:43] Speaker 00:
So it's not providing any structure for alerting unit.

[00:16:47] Speaker 00:
There is, with respect to the figure of this patent, there's no

[00:16:52] Speaker 00:
suggestion in the patent that anything in that figure is an alerting unit.

[00:16:57] Speaker 00:
After the patent uses the term alerting unit in the context of functional language, it never then again discusses alerting unit, never provides any structure, neither any disclosure linking structure to

[00:17:15] Speaker 00:
alerting unit nor any structure that is linked to the specific functions of alerting unit.

[00:17:22] Speaker 04:
What about the argument today that it's element 10 in figure 1?

[00:17:28] Speaker 04:
Does that change anything?

[00:17:31] Speaker 00:
No, Your Honor.

[00:17:33] Speaker 00:
The district court considered this and also considered box 20.

[00:17:42] Speaker 00:
Those are empty boxes.

[00:17:44] Speaker 00:
There's nothing in there that actually says to a person of ordinary skill in the art how to perform an alerting unit.

[00:17:50] Speaker 00:
We just don't have any disclosure that says how to perform.

[00:17:54] Speaker 04:
Or what the structure is.

[00:17:55] Speaker 04:
Not just how to perform, but what the structure is.

[00:17:57] Speaker 00:
Exactly, Your Honor.

[00:17:58] Speaker 00:
That's right.

[00:18:00] Speaker 00:
There was reference to this court's Diefan case.

[00:18:03] Speaker 00:
And yes, there was a unit term in that claim, but that was

[00:18:08] Speaker 00:
Obviously, as we've been discussing this morning, context-specific, those unit terms were very different.

[00:18:15] Speaker 00:
Alerting unit here, there's never been a suggestion that it has a commonly understood meaning in the art.

[00:18:20] Speaker 00:
In the DIFAN case, the terms were a first broadcast short-range communications unit and a second broadcast short-range communications unit.

[00:18:29] Speaker 00:
Those were in the context of claim language reciting a building that had those units.

[00:18:35] Speaker 00:
So very different context where there was structure

[00:18:38] Speaker 00:
for those unit terms, that is not present here.

[00:18:47] Speaker 00:
I'm happy to address anything else on the alerting unit term, otherwise I'll turn to the second part term.

[00:18:52] Speaker 00:
Thank you.

[00:18:53] Speaker 00:
With respect to second part, this falls squarely within this court's line of precedent of quintessentially nonsensical terms.

[00:19:02] Speaker 00:
heard from WSOU's counsel this morning that they admit this is grammatically nonsensical.

[00:19:08] Speaker 00:
That ends the inquiry because it is not the district court's role to rewrite claims.

[00:19:17] Speaker 00:
WSOU is offering, I think what it calls, a claim construction for second part that would rewrite the claim and use words like boundary

[00:19:25] Speaker 00:
that do not appear anywhere in the specification.

[00:19:28] Speaker 00:
So there's no support for that alleged construction.

[00:19:31] Speaker 00:
And what we really have here is if this is so easily fixable, there are multiple ways that a patentee can go to the patent office or go to the district court to seek a different claim, have a certificate of correction, or reissue many avenues.

[00:19:47] Speaker 00:
WSU did not pursue those in this court's case law in the long line of precedent.

[00:19:52] Speaker 00:
Chef America, Allen Engineering, Horizon, Process Control, Synchronous, Trustees of Columbia, says that when a patentee uses claim language that just doesn't make sense, that the result is that the claim is indefinite.

[00:20:06] Speaker 00:
And I would just add here that this patent was a patent where WSO did not even brief this issue in reply.

[00:20:13] Speaker 00:
And then when the district court provided his preliminary guidance before the Markman hearing as to what he

[00:20:19] Speaker 00:
tentatively thought each claim would mean or if it was indefinite, he said it was indefinite and WSOU did not elect to argue this at the term at the claim construction hearing.

[00:20:29] Speaker 00:
So really this is a, for whatever reason, WSOU has not attempted to correct it the right way and it should not be done through the back door of claim construction.

[00:20:40] Speaker 00:
If the court has no further questions, we would ask you to affirm across both appeals and both patents.

[00:20:47] Speaker 02:
Thank you, counsel.

[00:20:49] Speaker 02:
Mr. Cordy has a little time left.

[00:20:56] Speaker 01:
Just briefly, your honor, on counsel's point about, for the alerting unit, the fact that there were parallel claims in mean plus function format.

[00:21:06] Speaker 01:
I mean, again, they tend to view it as, well, that must mean the same thing.

[00:21:10] Speaker 01:
They try to meld them all together.

[00:21:12] Speaker 01:
To me, that's an indication that there is an intent to not

[00:21:16] Speaker 01:
have this claim be in means plus function format because of the parallel structure.

[00:21:22] Speaker 01:
Their point about calling the functional language that we point out, you know, DIFFAN2 talks about combining a structural connoting term that is coupled with a description of operations.

[00:21:33] Speaker 01:
That's merely what's done here.

[00:21:34] Speaker 01:
So they're trying to squeeze it into, force it into a means plus function, but again, this is something structural.

[00:21:42] Speaker 01:
On the

[00:21:45] Speaker 01:
The second part, we noted the case on page one of our reply microprocessor BT text instrument.

[00:21:53] Speaker 01:
This court has addressed apparent nonsensical readings, nevertheless found to be indefinite, not indefinite in view of the full intrinsic record.

[00:22:01] Speaker 01:
And what my point was is when I said it's not the model of clarity, it's not the model of clarity if you're kind of in

[00:22:08] Speaker 01:
Law review mode like you're kind of like this from area and you're thinking everything but Google didn't come forward with a pose of this saying well I as opposed it I wouldn't understand that so opposed it would be understandable to oppose it all looking at the figures To in the best example the pose that we have the only pose of the knowledge we have here is the examiner examiner

[00:22:30] Speaker 01:
You know, encourage the applicant to put that.

[00:22:32] Speaker 01:
He put that language in.

[00:22:33] Speaker 01:
He reviewed it, obviously, when he saw the specification.

[00:22:36] Speaker 01:
He reviewed the language and saw the claims.

[00:22:38] Speaker 01:
He told the applicant to put that language, and he put that language in the reasons for allowance.

[00:22:44] Speaker 01:
So that is the pose of the knowledge.

[00:22:45] Speaker 01:
They have no pose of the knowledge on their side.

[00:22:48] Speaker 01:
So with that, we would ask that the court reverse on both of these.

[00:22:52] Speaker 01:
Thank you very much.

[00:22:52] Speaker 02:
Thank you, counsel.

[00:22:54] Speaker 02:
The case is submitted, and that closes today's argument.

[00:22:58] Speaker 01:
Thank you very much, Sharon.