[00:00:00] Speaker 06:
Next case is 22-20-25, self spin soft versus video.

[00:00:06] Speaker 06:
Mr. Fuller.

[00:00:07] Speaker 06:
And can I ask you to address the issue of a final judgment as you begin?

[00:00:13] Speaker 03:
I certainly will, Your Honor.

[00:00:15] Speaker 03:
Thank you.

[00:00:16] Speaker 03:
I will address that issue first.

[00:00:18] Speaker 03:
The parties have conferred on this, and I think I have a unified

[00:00:22] Speaker 03:
proposition or suggestion to the court.

[00:00:27] Speaker 03:
We would agree that because there were certain counterclaims that were not resolved by the summary judgment motion, namely counterclaims for invalidity that were filed by Fossil, Fitbit.

[00:00:41] Speaker 03:
I would note also that Garmin had filed a counterclaim for not only invalidity but of ineligibility.

[00:00:50] Speaker 03:
So as to those three defendants,

[00:00:52] Speaker 03:
final judgment did not resolve all of the causes of action in the district court.

[00:00:59] Speaker 03:
Now, what we would suggest is that the court follow a practice which does have some precedent, and that is namely to proceed with the oral argument today, dismiss, after the oral argument, dismiss these appeals at least as to those three defendants and remand to the district court, at which point the parties would

[00:01:23] Speaker 03:
resolve whatever remaining counterclaims most likely by a stipulation to dismiss those without prejudice to refiling in the event this court remands the case back to the district court, file a new appeal based on the complete final judgment, which would be assigned back to this panel.

[00:01:45] Speaker 06:
Why don't we stop the clock, because I don't want to use it.

[00:01:48] Speaker 06:
I guess I look to my colleagues, but that's not the way we usually do it.

[00:01:52] Speaker 06:
My understanding is you all, the parties, would go back to the district court and ask for 54B or ask for dismissal.

[00:02:00] Speaker 06:
We don't have to remand anything to the district court, because it's not a final judgment.

[00:02:04] Speaker 06:
So it remains before her and not before us.

[00:02:08] Speaker 06:
I don't know if my colleagues have anything to add.

[00:02:12] Speaker 02:
I don't remember seeing in the docket sheet on Garmin that there was a private claim.

[00:02:20] Speaker 02:
Garmin?

[00:02:21] Speaker 03:
Did I just miss that?

[00:02:22] Speaker 03:
Sure.

[00:02:23] Speaker 03:
Garmin, it was at docket 78 in the district court.

[00:02:27] Speaker 03:
Their answer to the first-minute complaint had counterclaims for ineligibility and invalidity.

[00:02:34] Speaker 03:
At least that's what our internal records reflect.

[00:02:40] Speaker 03:
I would point out to the court cases such as Enzo Biochem as well as Parker Vision B Qualcomm,

[00:02:52] Speaker 03:
instances where this court did the procedure which we're suggesting and that is to perhaps I said remand I didn't mean to say remand I meant to dismiss the counterclaims as to those defendants for lack of jurisdiction and then when the when the parties go back to the district court stipulate do whatever entries need to be made into the record there in order to resolve those pending counterclaims

[00:03:22] Speaker 03:
at which point the district court went into a new final judgment, which would resolve all matters, and then the parties would take an appeal from that, which would be assigned to this panel for rendering of judgment based on today's oral argument and the briefs that are before the court.

[00:03:40] Speaker 06:
Okay, well I want to hear from my colleagues on how to proceed, but I think

[00:03:46] Speaker 06:
You may be wrong about Garmin.

[00:03:49] Speaker 06:
If you look at Appendix 120, there's a 54B, right?

[00:03:57] Speaker 02:
Is that the right doctor sheet?

[00:04:00] Speaker 06:
Appendix 120.

[00:04:05] Speaker 06:
This is the court granted defendant Garmin's motion for summary judgment.

[00:04:09] Speaker 06:
enter judgment.

[00:04:10] Speaker 06:
However, because patent 698 remains asserted in this case, the court revises its final judgment to apply only to the claims.

[00:04:25] Speaker 02:
I guess I'm just looking also at page 350 of the appendix.

[00:04:30] Speaker 02:
Do you have that?

[00:04:31] Speaker 02:
This is real deeply in the weeds, but it's really, really, really important.

[00:04:37] Speaker 02:
That's the docket sheet for Garmin.

[00:04:41] Speaker 02:
There's an answer filed on November 15th, 2017.

[00:04:43] Speaker 02:
That's docket number 16.

[00:04:49] Speaker 02:
Docket sheets say if there's a counterclaim associated with that answer.

[00:04:54] Speaker 02:
I don't remember whether the answer is in here.

[00:04:59] Speaker 02:
Was there a subsequent answer in counterclaim?

[00:05:01] Speaker 03:
There was a first amended complaint as to Garmin.

[00:05:03] Speaker 03:
I don't have the docket entry for that.

[00:05:05] Speaker 03:
I do know that the docket entry for the first amended... That was docket number 47 at March 2nd, 2018.

[00:05:13] Speaker 03:
I have a docket number 78.

[00:05:15] Speaker 03:
I don't have the actual document in front of me.

[00:05:20] Speaker 02:
I just have a written... I see.

[00:05:21] Speaker 02:
That's the answer to the amended complaint with a counterclaim.

[00:05:25] Speaker 02:
Got it.

[00:05:26] Speaker 03:
Thank you.

[00:05:27] Speaker 03:
And those counterclaims, to my understanding, were not only for invalidity, but also for eligibility.

[00:05:34] Speaker 06:
Did anyone have any view about how to proceed here along those lines of dismissing it?

[00:05:44] Speaker 04:
I think you had it right.

[00:05:46] Speaker 04:
Just giving them an opportunity to vote?

[00:05:51] Speaker 02:
What's odd here is that this argument is going to give you a bunch of information about what we think about the issues currently in front of us.

[00:06:00] Speaker 02:
It's an unusual thing to provide that kind of information, which might then have an effect on what you do with the remaining, with the outstanding counterclaims.

[00:06:21] Speaker 03:
My understanding of the proposed approach would be, again, in reference to Enzo Biochem and in Parker Vision, would be that we would not re-brief the issues as to Fitbit, Garmin, or Fossil on the next appeal.

[00:06:35] Speaker 03:
We would stand on the existing briefs and the oral argument that we present today, and so this panel would then

[00:06:44] Speaker 03:
prepare its written opinion based on the record that it has before it.

[00:06:49] Speaker 03:
The only thing that would happen on the dismissal for these appeals as to those three defendants would be that we'd resolve the jurisdictional problem in the district court by resolving the counterclaims, most likely by dismissing them without prejudice, such that the final order would be final and appealable.

[00:07:07] Speaker 02:
Would your consent be needed to dismiss the counterclaims without prejudice?

[00:07:13] Speaker 03:
I would certainly consent to that.

[00:07:15] Speaker 02:
Maybe, it depends on what happens in the next 45 minutes here.

[00:07:20] Speaker 03:
Certainly, but on the record... Would it be needed under the rules?

[00:07:31] Speaker 03:
As for the counterclaims, I don't know that

[00:07:34] Speaker 03:
plaintiff's consent would be necessary for a defendant to, well I guess we would, we would consent to a stipulation of dismissal without prejudice.

[00:07:47] Speaker 06:
Why don't we hear from, do you have any comments on what we've been discussing here sir?

[00:07:53] Speaker 00:
Yes, Your Honor.

[00:07:55] Speaker 00:
We would be amenable to the procedure that plaintiffs' counsel identified.

[00:07:59] Speaker 00:
However, there's another procedure that might allow us to short circuit the kind of back and forth with the district court.

[00:08:07] Speaker 00:
And in particular, there's a case called Synchronous Technologies, in which case at oral argument, the counsel that was asserting the counterclaims agreed to, and in the oral argument, it was a little

[00:08:22] Speaker 00:
imprecise, it was to drop the counterclaims.

[00:08:25] Speaker 00:
And assuming that would be without prejudice, we would be willing to state on the record right now for Fitbit, Fossil and Garmin, that we would be willing to dismiss the counterclaims without prejudice if that statement would resolve the jurisdictional issue.

[00:08:44] Speaker 02:
I don't know if it's the same case.

[00:08:46] Speaker 02:
I was at one once where, actually, the inside counsel from that party was in the audience.

[00:08:52] Speaker 02:
And he said, we rave it.

[00:08:57] Speaker 06:
Well, can I ask you, sir, if you consent to proceeding in that regard?

[00:09:01] Speaker 06:
Absolutely.

[00:09:02] Speaker 06:
Yes, John.

[00:09:04] Speaker 06:
Thank you both.

[00:09:05] Speaker 06:
We'll start the clock running again at 15.

[00:09:20] Speaker 03:
Thank you, Your Honor.

[00:09:20] Speaker 03:
If it pleases the court, on de novo review, this court should reverse the erroneous grant of summary judgment that was entered by the district court, which is premised largely on, well, premised exclusively on the district court's position that the plaintiff's self-spend failed to cite to and present sufficient evidence upon which

[00:09:49] Speaker 03:
to raise even a single issue of tribal fact as to infringement.

[00:09:56] Speaker 03:
We clearly believe that the record reflects, as detailed in our blue brief, that Selspin has presented substantial evidence of infringement above and beyond those opinions of the expert, which the district court, again erroneously in our position,

[00:10:18] Speaker 04:
Did you present evidence that showed that the Q-systems included a first processor?

[00:10:29] Speaker 03:
A first processor, absolutely, Your Honor.

[00:10:31] Speaker 03:
The devices themselves are very clearly established in the record, and the tear-down evidence, for example, of how the processors are existing is all in the record.

[00:10:48] Speaker 03:
Those evidentiary citations are in the claim charts that are attached to the expert report that was prepared by Mr. Veach as to each defendant runs through element by element a written description of his opinion.

[00:11:08] Speaker 03:
Now, the district court, I believe the error in the district court was in not correlating the summary

[00:11:16] Speaker 03:
opinions that are set forth in the report with the matching

[00:11:21] Speaker 03:
background evidence that's in the claim charts that are incorporated by the program.

[00:11:25] Speaker 06:
Can I ask you, I want to make sure we're talking about the same thing.

[00:11:27] Speaker 06:
I'm thinking about the right thing, which is this is where the district court cites the fact that your two experts reports have a total of two paragraphs, 92 and 94.

[00:11:40] Speaker 06:
Are we talking about the same thing, the expert report?

[00:11:43] Speaker 06:
And then there's an attached source code, which wasn't in the appendix.

[00:11:48] Speaker 06:
Is that the same issue you're talking about, the evidence?

[00:11:51] Speaker 03:
Uh, which paragraph is your honor referring to?

[00:11:54] Speaker 03:
Paragraph 94 of... Yeah.

[00:11:55] Speaker 03:
92 and 94.

[00:11:59] Speaker 03:
Of the expert report?

[00:12:01] Speaker 03:
Yes.

[00:12:02] Speaker 03:
Are you talking about the Fitbit reports?

[00:12:05] Speaker 03:
Oh, actually, I was for the Garmin case.

[00:12:06] Speaker 03:
I'm sorry.

[00:12:07] Speaker 03:
Okay.

[00:12:08] Speaker 03:
Were you talking about... I was referring to Fitbit, but I'm glad to pull up the Garmin.

[00:12:19] Speaker 06:
Paragraph 92, your honor.

[00:12:21] Speaker 06:
And 94, that's what my notes say.

[00:12:30] Speaker 03:
I don't see paragraph 92 in the appendix.

[00:12:33] Speaker 03:
Is that what your honor is referring to?

[00:12:39] Speaker 06:
Too many appendices.

[00:12:39] Speaker 06:
All right, never mind.

[00:12:41] Speaker 06:
So what information are you saying?

[00:12:43] Speaker 06:
What evidence did the district court improperly disregard?

[00:12:48] Speaker 03:
the totality of the evidence in each written report, as I mentioned, incorporates by reference claim charts.

[00:12:56] Speaker 03:
And I'll give the court a prime example of this.

[00:13:02] Speaker 03:
Specifically, and I'll commonly refer to the Fitbit reports, just for ease of reference.

[00:13:11] Speaker 03:
The Fitbit report,

[00:13:17] Speaker 03:
at paragraph 111 addresses the issue of establishing a secure paired connection.

[00:13:28] Speaker 03:
Now that paragraph incorporates by reference all of the materials and evidence that's cited in the claim charts which are prepared again element by element on a Q's product basis.

[00:13:43] Speaker 03:
Now if you look at the

[00:13:47] Speaker 03:
Fitbit claim chart that is referenced, and this is that appendix beginning at page 1248 of the appendix.

[00:13:55] Speaker 03:
As to this element establishing a paired Bluetooth connection, Mr. Vease presents multiple sources of evidence.

[00:14:04] Speaker 03:
He begins with evidence of typical Bluetooth functionality as referenced in the Bluetooth specification.

[00:14:12] Speaker 03:
He spends a couple of pages citing to that authority.

[00:14:16] Speaker 03:
Beyond that, beginning at page 1254, or actually page 1252 of the appendix, he begins to walk through and illustrate using screenshots of the actual device in operation performing pairing.

[00:14:37] Speaker 03:
He performs pairing on the accused device.

[00:14:40] Speaker 03:
He cites to the user manual, which is also in the appendix.

[00:14:45] Speaker 03:
to illustrate how the user manual instructs the user to perform pairing.

[00:14:50] Speaker 03:
So these screenshots go on for several pages.

[00:14:53] Speaker 03:
Again, step-by-step methodical process.

[00:14:56] Speaker 03:
And then, beginning at page 1268 and on to 1269, cites to source code, which

[00:15:10] Speaker 03:
One example of that source code is on page 1268, and that's source code base number FBSC311.

[00:15:20] Speaker 03:
And while that specific line of source code is not explained in this chart, it is explained in the body of the report, specifically at, I believe it's at

[00:15:40] Speaker 03:
appendix page 520 and 521.

[00:15:42] Speaker 03:
Now, beyond the source code, he cites to defendants own technical documents.

[00:15:49] Speaker 03:
Now, what the district court did was it characterized these citations as mere swaths of documents that are untethered to the claim language and cited to the Traxel case as support for basically rejecting out of hand

[00:16:06] Speaker 03:
all of it.

[00:16:06] Speaker 03:
But as the court will note, these are not swaths of document citations that require the district court to go dig through the record to find something that might possibly be relevant.

[00:16:18] Speaker 03:
These citations are two specific pages, in addition, citation to specific page and line of deposition testimony.

[00:16:27] Speaker 03:
Now, in parenthetical form, as to each citation, as the court will see on 1268 and on to 1269,

[00:16:37] Speaker 03:
Each of those references is the pertinence of that disclosure as to this specific limitation, namely Bluetooth pairing is identified.

[00:16:49] Speaker 03:
Most commonly, it's a direct quote from the document itself, which again is the evidence relied upon, the evidence of record that is relied upon by Mr. Veige when he makes his opinion in paragraph 111

[00:17:07] Speaker 03:
that yes, these devices do perform Bluetooth testing.

[00:17:10] Speaker 03:
Now this is just an example.

[00:17:12] Speaker 03:
Each element is laid out the exact same way in each report, in each appendix, in each chart for each accused instrumentality.

[00:17:23] Speaker 03:
So what Mr. Veach has done is he has undertaken an exhaustive citation to the record, and we would submit to the court that even if the district court was correct, which we don't think it was,

[00:17:37] Speaker 03:
that his ultimate opinions were conclusory, there is still more than sufficient evidence in this record based on the screenshots of the devices in operation.

[00:17:52] Speaker 03:
Beyond these and other aspects of the claim chart, he actually performed physical testing of the Bluetooth communications to confirm

[00:18:04] Speaker 03:
what is happening with the Bluetooth functionality between the devices, those reports are in this appendix, as well as Wi-Fi sniffing testing to determine certain elements, specifically how the HTTP communication protocol is implemented by the accused instrumentalities.

[00:18:21] Speaker 03:
So the notion that plaintiff doesn't have evidence of infringement cannot possibly stand.

[00:18:33] Speaker 03:
This record illustrates the fact that plaintiff has multiple sources, very specific citations to the record evidence of each and every element, in addition to the explanations and the very thorough opinion testimony of its expert, which hasn't been challenged or excluded by Daubert or anything else.

[00:18:56] Speaker 02:
The fundamental basis of... Can I ask this?

[00:18:59] Speaker 02:
This is, I guess, about one of the issues that maybe might fairly be described as not so much an evidentiary issue as a lateness of assertion issue.

[00:19:12] Speaker 02:
This is the user identifier issue and the district court's lateness of assertion basis for saying you

[00:19:25] Speaker 02:
cannot rely on the o-off, is that how you pronounce it?

[00:19:28] Speaker 02:
O-off, yes.

[00:19:29] Speaker 02:
The o-off element because you failed to disclose it in a timely fashion.

[00:19:36] Speaker 02:
First of all, do you agree that the propriety or impropriety of that basis is the same for all three patents?

[00:19:42] Speaker 02:
I don't remember seeing any distinction being made.

[00:19:45] Speaker 03:
No, there's no distinction.

[00:19:47] Speaker 03:
And as to this question,

[00:19:52] Speaker 03:
We completely disagree, obviously, with the district court's position that OAuth, standing alone, was a new theory of infringement.

[00:20:02] Speaker 03:
It's clearly not a new theory of infringement.

[00:20:05] Speaker 03:
From the beginning of this case, in the original infringement contentions, and even standing here today, plaintiff's contention as to what the user identifier is, as defined in the contentions, was

[00:20:21] Speaker 03:
that, and I want to be sure I get the language exactly, a user name or email address or information based off of a user or the user's associated wearable device.

[00:20:32] Speaker 03:
That's what the user identifier is as implemented in the source code.

[00:20:36] Speaker 02:
Now, that's, I mean, except for the email.

[00:20:39] Speaker 02:
Email address is a very concrete thing.

[00:20:41] Speaker 02:
It is.

[00:20:42] Speaker 02:
I forget what the second thing you said was.

[00:20:44] Speaker 03:
Username or email address.

[00:20:45] Speaker 02:
Okay, but the rest is just different words for, it has to be an identifying, it has to identify the user.

[00:20:53] Speaker 02:
Um, and the problem I think that the district court found was that you stopped relying on the email address and you now said, he was a very specific, um, item in several of the defendant's codes, right?

[00:21:08] Speaker 02:
Um, Fitbit fossil Garmin, right?

[00:21:11] Speaker 02:
And yes, right.

[00:21:13] Speaker 02:
Um, and that.

[00:21:16] Speaker 02:
And that's what it means.

[00:21:19] Speaker 02:
What it means to identify the thing in the code is to say this specific element not something that serves this purpose.

[00:21:27] Speaker 02:
We're not going to yet tell you what it is.

[00:21:29] Speaker 02:
And you didn't identify that in an infringement contention.

[00:21:33] Speaker 02:
Your expert in deposition, I think, started talking about it.

[00:21:38] Speaker 02:
But you didn't amend the contentions.

[00:21:41] Speaker 02:
Do I have the picture wrong?

[00:21:42] Speaker 03:
Well, the picture is this, is that

[00:21:45] Speaker 03:
We could not identify how these defendants implemented in their source code the user identifier until the expert reviewed the source code and was able to identify the specific application.

[00:21:58] Speaker 02:
But even after that, you didn't amend your infringement conditions.

[00:22:01] Speaker 03:
The source code was reviewed extremely late in the discovery, and I think the timeline is laid out in our petition.

[00:22:08] Speaker 03:
There was roughly a month between when the source code was produced and the time when the report was written.

[00:22:15] Speaker 03:
As far as timeliness, we certainly identified the OAuth token or the OAuth credential specifically for these devices as soon as we became aware of it.

[00:22:32] Speaker 03:
Now again, we would go back to the point that the original contention, the sufficiency of which was never challenged by any defendant, and while it may be characterized as loose language,

[00:22:45] Speaker 03:
Nevertheless, the assertion on the part of Plano from the beginning of the case is that a user identifier, as Your Honor pointed out, is self-defining.

[00:22:59] Speaker 03:
It's something in the code that identifies the user.

[00:23:04] Speaker 03:
And so while we use language as information based off of the user or the user's device, certainly under the local patent rule,

[00:23:14] Speaker 03:
That was sufficient.

[00:23:16] Speaker 03:
Again, it was never challenged as being insufficient to put the defendants on notice as to what plaintiff's contention was.

[00:23:25] Speaker 03:
Then when we get the source code, we see what the specific applications were.

[00:23:30] Speaker 03:
And that is presented actually in our reply brief.

[00:23:34] Speaker 03:
We lay out those three portions of the source code.

[00:23:40] Speaker 04:
The argument is that the expert clarified the contention.

[00:23:44] Speaker 03:
He clarified the contention by identifying the specific implementation as for each of these.

[00:23:52] Speaker 03:
They all do it different ways.

[00:23:53] Speaker 04:
Wouldn't you agree that if the clarification was such that you don't have a clarification, you have a brand new contention, that you should have amended immediately your contention's father of the court?

[00:24:11] Speaker 03:
which was done within a month's time after the source code was reviewed.

[00:24:16] Speaker 03:
And again, I think that timeline is laid out in our brief.

[00:24:19] Speaker 03:
But as to your point, OAuth, it's not a new theory.

[00:24:25] Speaker 03:
It is an application of the existing theory.

[00:24:27] Speaker 03:
And again, each defendant implements the user ID in different ways.

[00:24:32] Speaker 03:
The Fitbit source code, for example, identifies the OAuth credential as the user identifier.

[00:24:38] Speaker 03:
So whether it's an OAuth token, which I believe is used by Fossil, or some other application, which Garmin uses a different vernacular, each coder has a different approach, but they all perform the exact same thing, and that is they identify the user based off of user identification or some information based off of the user's device.

[00:25:03] Speaker 03:
So OAuth is, again, not a theory.

[00:25:08] Speaker 03:
It is a coding convention used to carry out this very normal routine.

[00:25:14] Speaker 06:
I believe I'm over my time.

[00:25:33] Speaker 00:
Good morning.

[00:25:34] Speaker 00:
Good morning, Your Honours.

[00:25:35] Speaker 00:
May it please the Court.

[00:25:36] Speaker 00:
Kareem Usaya for Fitbit, Fossil, Garmin and Nike.

[00:25:41] Speaker 00:
And I'll start exactly where we left off with the user information or user identifier.

[00:25:46] Speaker 02:
Are you here for Under Armour?

[00:25:52] Speaker 00:
I believe Council for Nikon is going to... Under Armour.

[00:25:57] Speaker 00:
Yes, Your Honour.

[00:25:58] Speaker 00:
And we lined it up based on the particular issues.

[00:26:02] Speaker 00:
Now on user information, the issue here is exactly what we were just discussing, which is information about a user does not disclose any information to the defendants about what user information

[00:26:19] Speaker 02:
Can you talk about the specifics of the timing question, I guess, and just clarify that.

[00:26:24] Speaker 02:
My recollection is that OAuth was identified by plaintiff's expert in a deposition, maybe in a report, I don't know, but at least a deposition, but at least in my memory, the summary judgment process

[00:26:40] Speaker 02:
It wasn't just like a few weeks before.

[00:26:43] Speaker 02:
Yes, that's right.

[00:26:44] Speaker 00:
So during discovery, there was no identification of any OAuth theory.

[00:26:51] Speaker 00:
Then in the opening expert report, the word OAuth appears, but it's not clear what it's being used for, or even that as a particular element.

[00:27:01] Speaker 00:
For example, in Appendix 515, there's a mention of OAuth, but without any clarification as to whether it's user-identifier or not.

[00:27:09] Speaker 00:
And then only in the expert deposition at appendix 9667 through 6.8, and the deposition page numbers is 22417 to 2263, was there a clarification that the expert is affirmatively abandoning the original username or email theory and going to this new OAuth theory.

[00:27:39] Speaker 02:
And can you just remind me, what are the dates of these things?

[00:27:42] Speaker 02:
What was the date of the expert report?

[00:27:46] Speaker 00:
The date of the expert report, we could find that at 5-15.

[00:27:56] Speaker 02:
September 3rd, 2021.

[00:27:58] Speaker 00:
Yes, Your Honor, that sounds right.

[00:28:01] Speaker 02:
And so that's, what, five months or something before?

[00:28:07] Speaker 02:
that summary judgment motions were filed.

[00:28:10] Speaker 00:
Yes, that's right, Your Honor.

[00:28:11] Speaker 00:
It was some time between the summary judgment argument.

[00:28:16] Speaker 00:
However, by that time, fact discovery had closed, and defendants had spent all of discovery researching usernames and email addresses and confirming that there's no attachment of that information as required under the claims.

[00:28:31] Speaker 00:
And so at that point in time,

[00:28:35] Speaker 00:
you know, defendants did not have a fair opportunity to address this new theory.

[00:28:41] Speaker 02:
Can I just ask this?

[00:28:42] Speaker 02:
I think in the reply brief, but again, I think not before, either in the district court or in the blue brief here, there's an argument from the other side on this that there's just no prejudice at all for this.

[00:28:59] Speaker 02:
Can you address that either as to forfeiture or why there might be prejudice?

[00:29:03] Speaker 00:
Yes, Your Honor.

[00:29:04] Speaker 00:
There's certainly prejudice here, because we lined up the key witnesses and lined up what our experts would say based off of a username or based off of an email theory.

[00:29:18] Speaker 00:
And so when it became clear in expert depositions, after the expert reports had been served and after the close of fact discovery, Fitbit and the other defendants didn't have a fair opportunity to defend themselves against this new OAuth.

[00:29:33] Speaker 02:
you know, a hint about what you might have said had you had that opportunity.

[00:29:37] Speaker 02:
And I take it I took there no prejudice to say it's absolutely clear that the OAuth token or the OAuth meets this claim element.

[00:29:48] Speaker 02:
There would have been nothing you could possibly say.

[00:29:51] Speaker 02:
What might you have said?

[00:29:53] Speaker 00:
For example, OAuth

[00:29:55] Speaker 00:
is named off because it's about authentication.

[00:29:59] Speaker 00:
So we would have found the folks at the defendants who know about authentication, not usernames or email addresses and that kind of thing.

[00:30:09] Speaker 00:
And so we would have had the folks about authentication to be able to explore the idea

[00:30:16] Speaker 00:
that there's some kind of attachments or applying that kind of user information on an intermediary device.

[00:30:22] Speaker 00:
We did not have that opportunity.

[00:30:24] Speaker 02:
Am I remembering correctly?

[00:30:26] Speaker 02:
I just don't want to go off on a wrong direction, that there was not, in fact, an argument from self-spend in opposition to this point you made in your summary judgment motion, not an opposition on the ground that there's no prejudice.

[00:30:43] Speaker 02:
Even if it was late, there's no prejudice.

[00:30:45] Speaker 00:
I'm sorry, Your Honor, I didn't understand the question exactly.

[00:30:50] Speaker 02:
In opposition to your summary judgment motion on this point, the other side said, this really wasn't late.

[00:30:57] Speaker 02:
I don't remember if Selsman said, and even if it was late, you should excuse the lateness because there's no prejudice.

[00:31:05] Speaker 00:
I don't remember such an argument, Your Honor.

[00:31:08] Speaker 00:
And I think this goes to the abuse of discretion standard.

[00:31:12] Speaker 00:
The district court is uniquely situated to evaluate how the litigants were affected by such a change in theory.

[00:31:21] Speaker 00:
And the district court was well within its broad discretion to say, here, it was late, and it did impact the case.

[00:31:30] Speaker 00:
And I think that's why Celspin doesn't cite any case where this court has second guessed the district court's application of its own local patent rules.

[00:31:41] Speaker 00:
And there is, if there were any question, there is prejudice here.

[00:31:45] Speaker 00:
In fact, Cellspin, in its briefing before this court, has admitted that there are all kinds of authentication protocols and ways you could do it in their blue brief at 41 to 42.

[00:31:57] Speaker 00:
So right now, they imply that, well, it's obvious that we could have done OAuth and done that particular token functionality, but in their briefing they say there's many authentication protocols and there's no way we could have predicted that OAuth would be the authentication protocol as opposed to any other of the interchangeable protocols that they cite.

[00:32:22] Speaker 00:
And furthermore, I would say that user information doesn't have to be

[00:32:27] Speaker 00:
authentication, you could think of many different ways.

[00:32:30] Speaker 00:
Maybe it's a social security number.

[00:32:32] Speaker 00:
Maybe it's any other way that you identify a user.

[00:32:35] Speaker 00:
And being able to try to predict that is simply not something that makes sense in the case.

[00:32:43] Speaker 02:
Can I switch you to the first thing that Selsman's Council was talking about?

[00:32:48] Speaker 00:
Yes, Your Honor.

[00:32:49] Speaker 02:
Particular example or examples.

[00:32:52] Speaker 02:
This is now the evidentiary point, not the OAuth.

[00:32:55] Speaker 02:
Yes, Your Honor.

[00:32:55] Speaker 02:
Lakeness of assertion point.

[00:32:58] Speaker 02:
Can you walk through

[00:33:01] Speaker 02:
What's your answer to that?

[00:33:03] Speaker 02:
Why is the kind of thing, or even actually a very specific thing, which I think was maybe focused on the pairing issue from paragraph 111 of the Garlick report.

[00:33:15] Speaker 02:
Garlick?

[00:33:15] Speaker 02:
Yes, I think it's Garlick.

[00:33:16] Speaker 00:
Yes, Your Honor.

[00:33:18] Speaker 02:
And just walk through why you think that what he said was sufficient isn't.

[00:33:23] Speaker 00:
Yes, Your Honor.

[00:33:25] Speaker 00:
So the question the court asked Counsel Phil Selsman was about the first processor limitation.

[00:33:31] Speaker 00:
And that is critical because according to the claims, the first processor needs to be configured to do three different things.

[00:33:40] Speaker 00:
It must be configured to acquire new data.

[00:33:44] Speaker 00:
It must be configured to store the acquired new data, and it must be configured to send an event notification.

[00:33:51] Speaker 00:
That's what the first processor needs to do.

[00:33:53] Speaker 00:
So what Council for Salesman did is say, well, we have evidence of some kind of pairing.

[00:33:59] Speaker 00:
But that's not responsive to the fact that you need to show and identify a first processor that does all of these things.

[00:34:07] Speaker 00:
So even if CellSpin has evidence that they think these steps are done, and even if they have evidence that there exists a processor on the device, that is not evidence that there's a first processor that's configured to do each of these steps.

[00:34:24] Speaker 00:
And these steps are not about Bluetooth pairing, which is the evidence that Council for CellSpin was citing.

[00:34:32] Speaker 00:
And what's more,

[00:34:35] Speaker 00:
And this is pretty critical, too, is that the existence of multiple processors was undisputed in the record below.

[00:34:44] Speaker 00:
Using the rule 56, where we propounded certain undisputed facts, we said there's multiple processors in the court below.

[00:34:54] Speaker 00:
And in response, at appendix 15677, Selsman said, undisputed, there's multiple processors.

[00:35:06] Speaker 00:
What that means is there's no evidence that a first processor, as opposed to any of the other multiple processors, does the three things that they need to be configured to do under the claim language.

[00:35:23] Speaker 00:
There's a whole other problem about first processor too, which is what?

[00:35:28] Speaker 02:
I guess I wasn't entirely sure whether

[00:35:35] Speaker 02:
whether Mr. Foley was talking about the first processor limitation or the paired connection.

[00:35:40] Speaker 02:
The paragraph 111 seems to be about the paired limitation.

[00:35:45] Speaker 02:
So what about that one?

[00:35:49] Speaker 00:
Okay.

[00:35:50] Speaker 00:
Yes, Your Honor.

[00:35:51] Speaker 00:
So if we look at, I think it's helpful to look at what's actually happening on the device.

[00:35:56] Speaker 00:
And if we look at the red brief,

[00:35:58] Speaker 00:
on page 41, we see a dialogue box.

[00:36:03] Speaker 02:
No red brief?

[00:36:05] Speaker 00:
Oh, I'm sorry.

[00:36:08] Speaker 00:
There might be more than one.

[00:36:09] Speaker 00:
You never had so many red briefs.

[00:36:11] Speaker 00:
Sorry, um, Fitbit.

[00:36:13] Speaker 06:
The Fitbit red brief.

[00:36:19] Speaker 00:
And what we see here is a dialogue box on page 41.

[00:36:28] Speaker 00:
And this is a, you know, you can tell it's kind of on an iPhone.

[00:36:33] Speaker 00:
And what this dialog box is doing is it's asking the user, do you want to have a paired connection or do you want a connection that's not paired?

[00:36:47] Speaker 00:
And so that's what the user gets to select to do.

[00:36:50] Speaker 00:
They're the ones who decide, do you have a paired connection?

[00:36:54] Speaker 00:
And all the claims require establishing a paired connection.

[00:36:59] Speaker 00:
So it's the user who does that.

[00:37:01] Speaker 00:
And even if they click no, you still have a connection that's just an unpaired connection.

[00:37:11] Speaker 00:
And what our expert showed, and this is unrobotted, is that if you have pressed cancel, you have an unpaired connection and the device still functions as you may to do all kinds of fitness tracking and all kinds of behavior you might want to do.

[00:37:33] Speaker 00:
So why is that important?

[00:37:34] Speaker 00:
That's important because no one entity is doing all the method steps.

[00:37:40] Speaker 00:
And so there's no one doing all of them.

[00:37:43] Speaker 00:
And under the Akamai test, there can be no attributed performance of any step.

[00:37:50] Speaker 00:
Because regardless of what the user does, there's no benefit or participation that's conditioned.

[00:37:57] Speaker 00:
Regardless, you can use your device as you will.

[00:38:00] Speaker 04:
What good is the connection then?

[00:38:04] Speaker 00:
So it's an unpaired connection.

[00:38:06] Speaker 00:
And it seems a little bit

[00:38:08] Speaker 00:
counterintuitive, but basically you can imagine when you're calling someone on your phone, you don't have to have them in your address book to be able to call them.

[00:38:20] Speaker 00:
You can just punch in the number and call them, and that's the same principle as Bluetooth pairing.

[00:38:24] Speaker 00:
You can either have information about the other party and kind of pair yourself together, or you can just talk, even if there's no paired connection.

[00:38:33] Speaker 00:
And that's what our expert discusses at length.

[00:38:37] Speaker 00:
at appendix 106.41 through 4.3, and also 107.53 through 5.6.

[00:38:53] Speaker 00:
And this is not a battle of the experts, because their expert did not test this functionality.

[00:39:00] Speaker 00:
He never clicked on cancel.

[00:39:02] Speaker 00:
He never saw the unpaired connection.

[00:39:05] Speaker 00:
And that's what the district court found at Appendix 46 inciting the deposition testimony of their expert.

[00:39:19] Speaker 04:
Was there ever any teardown of the accused products?

[00:39:23] Speaker 00:
No, Your Honor, what happened, and this is relevant to the first processor, what happened is Council, or sorry, CellSpin used teardowns that they found on the internet, but they were for the wrong product.

[00:39:37] Speaker 00:
They were actually for something called the Fitbit Blaze and Surge, not the devices at issue, which were the Versa 2 and the Charge 3.

[00:39:48] Speaker 00:
And you can see that in their own contentions,

[00:39:53] Speaker 00:
For example, at appendix 2002, it says right under it, blaze or surge.

[00:40:00] Speaker 00:
So the pictures they're showing are pictures for the wrong device.

[00:40:05] Speaker 00:
So that's a whole other reason.

[00:40:07] Speaker 00:
And Celspin does not even in their reply brief address the first processor argument at all.

[00:40:16] Speaker 00:
So all the evidence about there's no first processor that does all these three functions or that they use the wrong processor is completely conceded because they don't address it in their reply brief.

[00:40:31] Speaker 00:
So with that, I'll rest on the briefs.

[00:40:35] Speaker 00:
Thank you very much, Your Honor.

[00:40:41] Speaker 06:
Thank you.

[00:40:41] Speaker 06:
Mr. Lloyd, you've got a few minutes.

[00:40:43] Speaker 06:
We've got another.

[00:40:44] Speaker 06:
I'm sorry.

[00:40:47] Speaker 02:
Are we about to hear more about pairing?

[00:40:51] Speaker 01:
Can, if you need to.

[00:40:53] Speaker 01:
Seth Lloyd for Nikon, which has overlapping issues with Under Armour.

[00:40:57] Speaker 01:
For both Nikon and Under Armour, the district court's unchallenged claim constructions are dispositive.

[00:41:03] Speaker 01:
The district court held that the claims require using a single, continuously maintained connection to perform all claim steps or recited functions.

[00:41:12] Speaker 01:
But unrebutted evidence shows that both Nikon's and Under Armour's products do not operate that way.

[00:41:17] Speaker 01:
On appeal, CellSpin does not point to any evidence disputing how these products operate.

[00:41:23] Speaker 01:
Instead, it conflates the requirement that the connection be between paired devices with the requirement that the connection be established and maintained continuously.

[00:41:34] Speaker 01:
But that contradicts the district court's constructions and wrongly seeks to capture claim scope

[00:41:40] Speaker 01:
that Selspin disclaimed during prosecution.

[00:41:43] Speaker 01:
During prosecution, Selspin initially had claims that recited establishing a pairing, and those claims were rejected over prior art that used Bluetooth connections to transfer data.

[00:41:55] Speaker 01:
Selspin amended its claims, changed establishing a pairing to establishing a paired connection, and then repeatedly distinguished its claims over the prior art based not on the paired aspect of the claims, but on the connection.

[00:42:07] Speaker 01:
stating that the key to its invention would be having an ongoing, a constant, or a continuous connection.

[00:42:14] Speaker 01:
And the district court found that that was a disclaimer of devices that operate by transmitting Bluetooth data when it's available, but then disconnecting the Bluetooth connection to conserve power.

[00:42:25] Speaker 01:
But that, again, is the unrebutted evidence, is that's how both Nikons and Under Armour's products operate.

[00:42:31] Speaker 01:
So Spinn's only argument otherwise is based on pairing, which

[00:42:36] Speaker 01:
is a requirement of the claim, but there are other requirements.

[00:42:39] Speaker 01:
I'm happy to answer any questions the court has about that.

[00:42:42] Speaker 04:
There are also other... Do you have a connection between two devices and then one of the devices goes to sleep?

[00:42:51] Speaker 04:
Do you still have a continuous connection?

[00:42:56] Speaker 01:
Yeah, so I'm actually not sure of the answer to that, Judge Raina.

[00:43:01] Speaker 01:
I mean, I think the way CellSpin has pitted the case is that as long as the devices are paired, that's enough.

[00:43:08] Speaker 01:
So under CellSpin's theory, one of the devices could even be turned off or could be thousands of miles away.

[00:43:13] Speaker 01:
And CellSpin would say there's still a connection because they're paired.

[00:43:19] Speaker 01:
But that is the understanding of the claims that it disclaimed during prosecution.

[00:43:23] Speaker 01:
And I think that's all that the court needs to decide to resolve this case, that that is not enough, because that's the only thing that's else been argued for these parties.

[00:43:34] Speaker 01:
Unless there are further questions, we ask that you affirm.

[00:43:40] Speaker 06:
Thank you.

[00:43:40] Speaker 06:
OK, Mr. Fuller.

[00:43:41] Speaker 06:
We'll give you four minutes if you need it, because we went a little ahead of time.

[00:43:45] Speaker 03:
Thank you, Your Honor.

[00:43:46] Speaker 03:
I want to start where my friend just left off with regard to Nikon.

[00:43:53] Speaker 03:
Cell spin theories, these are just what the claim requires and this is what the court's claim construction requires.

[00:43:59] Speaker 03:
Claims require a secure paired Bluetooth connection.

[00:44:02] Speaker 03:
The court construed these terms.

[00:44:04] Speaker 03:
There was not a disclaimer argument during claim construction.

[00:44:08] Speaker 02:
I think he said there was a disclaimer.

[00:44:11] Speaker 02:
Wasn't it in prosecution history?

[00:44:12] Speaker 02:
In the prosecution history.

[00:44:14] Speaker 03:
He was referring to a purported disclaimer during prosecution history.

[00:44:21] Speaker 03:
What my point is is that

[00:44:23] Speaker 03:
that argument wasn't part of claim construction and the claims were construed such that a paired Bluetooth connection that's maintained on a continuous basis is one which has an exchange of keys and we have submitted ample evidence of the fact that with regard to Nikon and the others that keys are exchanged and whether or not one device goes to sleep doesn't

[00:44:48] Speaker 03:
somehow eliminate the existing pairing.

[00:44:51] Speaker 03:
When that device is brought back into range, they automatically communicate with one another.

[00:44:58] Speaker 03:
That's because the keys remained exchanged the entire time.

[00:45:01] Speaker 02:
The Bluetooth connection... So you think that there is a connection at a moment when the devices are too far apart for there to be actually communication between them?

[00:45:14] Speaker 02:
Is that what you just said?

[00:45:16] Speaker 03:
Yes, based on the court's claim construction of what Bluetooth paired connection is.

[00:45:20] Speaker 03:
Absolutely.

[00:45:21] Speaker 03:
And again, because of the fact that the keys are exchanged in the beginning and they remain exchanged, the only way to unpair those Bluetooth devices is to manually go in and select unpair.

[00:45:36] Speaker 03:
I want to unpair these devices.

[00:45:38] Speaker 03:
I want to get rid of these keys that have been exchanged.

[00:45:40] Speaker 03:
Otherwise, the keys remain exchanged

[00:45:42] Speaker 03:
the devices remain in a paired Bluetooth state regardless of their proximity to one another.

[00:45:47] Speaker 03:
I also want to address briefly the user identifier question that has been a main topic.

[00:46:00] Speaker 03:
I want to just point out the fact that the claims require a user identifier.

[00:46:07] Speaker 03:
not just any user identifier, a very specific user identifier.

[00:46:11] Speaker 03:
If I look at claim one of the 752 patents, for example, the Bluetooth enabled mobile device is configured to attach a user identifier, an action setting, and a destination web address to the obtained new data wherein

[00:46:31] Speaker 03:
The user identifier uniquely identifies a particular user of internet service provided.

[00:46:38] Speaker 03:
It goes on to say that the obtained new data with the attached user identifier is what's sent to the web service.

[00:46:45] Speaker 03:
So this user identifier isn't something that just floats around in the code.

[00:46:50] Speaker 03:
It has a very specific application that's very specific to this claim.

[00:46:54] Speaker 03:
It's attached to the new data and sent.

[00:46:57] Speaker 03:
So this idea that we didn't know OAuth was part of the case

[00:47:02] Speaker 03:
They know how they implement the user identifier.

[00:47:04] Speaker 03:
We didn't until we saw the source code.

[00:47:07] Speaker 03:
So the idea that they limited their investigation to username or password when the original contention was not limited, clearly not limited to username or password, but also to information based off of the user, in light of the context of the claim, I can't speak for the defendants, but it seems that they sort of

[00:47:32] Speaker 03:
self-inflicted wound on that if they limited their investigation to only username and identity.

[00:47:38] Speaker 04:
It sounds like you're arguing that the other side should have proved your case.

[00:47:43] Speaker 03:
Not that the other side should have proved our case?

[00:47:45] Speaker 03:
Your case.

[00:47:46] Speaker 03:
How so, Your Honor?

[00:47:47] Speaker 04:
Well, I mean, the authorization, the off-o function, how do they know

[00:47:55] Speaker 04:
what you're thinking about the author and how that's going to operate, and how it's infringement.

[00:48:01] Speaker 04:
And just a while back, they were arguing that there's many ways in which you can authenticate.

[00:48:08] Speaker 04:
And you're making it their job to figure out the one way that applies to this case.

[00:48:17] Speaker 03:
Not so.

[00:48:18] Speaker 03:
Their job is to understand how their own code implements

[00:48:22] Speaker 03:
the user identifier that is attached to the new data that is sent to the web service.

[00:48:29] Speaker 03:
Our job is to look at the source code and identify, specifically, how do they do that?

[00:48:35] Speaker 03:
They do that by various means, including an OAuth code.

[00:48:40] Speaker 04:
You did do that?

[00:48:42] Speaker 03:
We did do that.

[00:48:43] Speaker 03:
Our expert identified it very easily from the source code, identified it.

[00:48:48] Speaker 03:
It's in his report.

[00:48:50] Speaker 03:
It's cited in the claim chart.

[00:48:52] Speaker 03:
as satisfying the user identifier because it is information based off of a user that is attached in a way that the claim requires.

[00:49:03] Speaker 03:
So again, the notion that it is a different theory is incorrect.

[00:49:12] Speaker 03:
It is the specific application on a defendant by defendant basis of what the user identifier is.

[00:49:19] Speaker 03:
The expert pulled it out of the code.

[00:49:23] Speaker 03:
We disclosed it.

[00:49:26] Speaker 03:
That's what's going to get presented to the jury is OAuth token, OAuth code, user identifier on a defendant-by-defendant basis as meets the limitation of the claim.

[00:49:37] Speaker 03:
I believe I'm out of time.

[00:49:38] Speaker 06:
Thank you.

[00:49:39] Speaker 06:
We thank all parties.

[00:49:41] Speaker ?:
The case is submitted.