[00:00:00] Speaker 01:
we will hear argument next in number twenty three one seven nine one doggie phone against tomofan uh... mister will thank you and good morning your honors may it please the court my name is david lao and i represent plaintiff appellant doggie phone LLC and its sole owner and the inventor of the patents at issue dr andrew davis

[00:00:29] Speaker 01:
Your Honor, in rushing to summary judgment of the district court and properly modified claim construction, misapplied the law, and failed to draw all justifiable inferences about facts in favor of the appellate doggie phone,

[00:00:42] Speaker 01:
and ignore genuine issues of material fact, thereby invading the purview of the jury.

[00:00:47] Speaker 01:
Summary judgment is only appropriate when no reasonable trier of fact could find that every limitation recited in a properly construed claim in the accused device is infringed.

[00:00:58] Speaker 03:
Counsel?

[00:00:58] Speaker 03:
To confirm, you're not challenging the district court's conclusion that delivery module limitation is a means plus function limitation, right?

[00:01:06] Speaker 01:
Correct, Your Honor.

[00:01:07] Speaker 01:
On appeal, we are not doing that.

[00:01:10] Speaker 05:
Can you start with the, I guess, what, in the district court's opinion, is the third issue is, I think, your third issue and Red's first issue.

[00:01:24] Speaker 05:
The system begins transition in response to input from the pet.

[00:01:33] Speaker 05:
Of course, Your Honor.

[00:01:34] Speaker 05:
And if the district court was right about that,

[00:01:38] Speaker 05:
We don't need to reach the other two issues.

[00:01:41] Speaker 05:
I'll just say my current view coming in right now is that's the biggest challenge you have.

[00:01:48] Speaker 01:
Certainly I'm happy to, and I do agree, out of the three limitations, any one of them would be dispositive for the reasons set forth in our briefing and I'll address here today.

[00:01:58] Speaker 01:
The district court got it wrong for all of them.

[00:02:00] Speaker 01:
The begins transmission to the remote client device requires two steps.

[00:02:04] Speaker 01:
A transmission to the remote client device of at least one of live audio or video and that the transmission quote begins in response to input from the pet.

[00:02:15] Speaker 01:
Now there's no dispute that the accused furbo device transmits live audio or video as those terms are defined in the claim construction.

[00:02:23] Speaker 01:
Neither side's experts, the court didn't disagree.

[00:02:26] Speaker 01:
We know that live audio or video does go from the doggy phone or the Furbo system to the remote device.

[00:02:34] Speaker 01:
So the question is whether that transmission begins in response to input from the pet.

[00:02:38] Speaker 01:
And this is where the court's claim construction and the integration of what occurred at the IPRs in the prosecution history is important.

[00:02:46] Speaker 01:
Because in the IPRs and the claim construction,

[00:02:50] Speaker 01:
there was an argument that in response meant triggered, or in other words, directly from the input of the pet with no intervening steps, nothing else occurring, then the transmission must begin and end to the remote device.

[00:03:04] Speaker 01:
And the court, confirming that the IPRs did, rejected that and said no, it should be triggered or otherwise cause the connection.

[00:03:12] Speaker 03:
I found in the briefing you indicated that you were not challenging the claim construction on this limitation.

[00:03:18] Speaker 03:
Is that right?

[00:03:21] Speaker 01:
No, because the court's claim construction was triggered or causally connected, which is consistent with what we believe is accurate.

[00:03:28] Speaker 03:
So the answer is you are not challenging the court's claim construction on this limitation, is that right?

[00:03:33] Speaker 01:
Right.

[00:03:33] Speaker 01:
Your earlier question was directed to the means plus function, correct?

[00:03:36] Speaker 03:
Right.

[00:03:36] Speaker 03:
So I have a new question.

[00:03:37] Speaker 01:
Okay.

[00:03:38] Speaker 03:
And the new question here would be you are not challenging the claim construction on this particular limitation.

[00:03:43] Speaker 03:
Is that accurate?

[00:03:44] Speaker 01:
To the extent the court applied that, yes, that's correct.

[00:03:47] Speaker 01:
Triggered or otherwise causally connected.

[00:03:50] Speaker 01:
That claim construction, we are not challenging.

[00:03:52] Speaker 03:
So what are you challenging?

[00:03:53] Speaker 03:
Maybe that's the way I should phrase it.

[00:03:55] Speaker 01:
We're challenging the court's erroneous conclusion that the existence of intervening steps means that there was not causal connection between the input of the pet and the transmission of the live audio or video to the remote device.

[00:04:09] Speaker 01:
As is outlined in the briefing, there's two states.

[00:04:12] Speaker 01:
We tried to make it very clear.

[00:04:14] Speaker 01:
There's the one state, at rest, where there's no input from the pet, the device, the system is as it is.

[00:04:21] Speaker 01:
The remote client with the user is somewhere else.

[00:04:24] Speaker 01:
The dog, in this case, the pet barks.

[00:04:27] Speaker 01:
That input then

[00:04:29] Speaker 01:
triggers or casually connects and begins the process of transmission.

[00:04:35] Speaker 01:
And it doesn't matter if the transmission ends up.

[00:04:39] Speaker 05:
It does not begin transmission.

[00:04:42] Speaker 05:
What it does is it triggers or it launches the sending of a text message, right?

[00:04:51] Speaker 05:
But there is no transmission at that point.

[00:04:57] Speaker 05:
the human involved, I may get this text message and it may be 15 minutes later that I look at it.

[00:05:05] Speaker 05:
At that point I can say, oh, my dog sent me a message basically.

[00:05:11] Speaker 05:
At that point I'm going to send some kind of message back, at which point

[00:05:17] Speaker 05:
there is a live video or audio from that moment.

[00:05:21] Speaker 05:
Nothing has been transmitted from the in-home device to the phone by then.

[00:05:28] Speaker 05:
And that's the principal mode we're talking about.

[00:05:31] Speaker 05:
There's also this kind of recording mode up in the server.

[00:05:36] Speaker 05:
And the problem with that is that by the time it gets to the phone, it's not live.

[00:05:40] Speaker 05:
But this one that we're talking about

[00:05:43] Speaker 05:
The transmission of live video does not, in fact, begin when the dog barks.

[00:05:51] Speaker 01:
We do respect you, Your Honor.

[00:05:52] Speaker 01:
We disagree.

[00:05:53] Speaker 01:
We disagree.

[00:05:55] Speaker 01:
If the patentee during prosecution had wanted to say the transmission must begin and end to be complete from the system to the remote device, they could have drafted the claim that way.

[00:06:06] Speaker 01:
They did not.

[00:06:07] Speaker 01:
They included purposely the term begin because the definition of begin to proceed to prune the first or earliest part of some action.

[00:06:16] Speaker 05:
That definition...

[00:06:19] Speaker 05:
What has to be transmitted is live video or audio.

[00:06:24] Speaker 05:
That is something that occurs over time.

[00:06:27] Speaker 05:
So there's no necessary end point at all.

[00:06:30] Speaker 05:
Of course you can use a word like begins as opposed to begins and ends.

[00:06:37] Speaker 05:
That doesn't make any sense with live video and audio.

[00:06:41] Speaker 05:
And the system has to begin the transmission.

[00:06:46] Speaker 05:
And if all that's done is sent, this is, I think, the district court's reasoning.

[00:06:52] Speaker 05:
And I'm trying to understand what your answer to that is.

[00:06:59] Speaker 05:
In fact, there's no live audio and video that begins when the dog barks.

[00:07:03] Speaker 05:
It could be 15 minutes later when the human reads the text message and say, hey, now I have time to watch.

[00:07:11] Speaker 01:
Your Honor, again, I think that's incorrect.

[00:07:13] Speaker 01:
And let me explain why.

[00:07:15] Speaker 01:
How is that incorrect?

[00:07:17] Speaker 01:
The normal operation of the device is that the... No, no, no.

[00:07:21] Speaker 01:
I'm going to ask you this.

[00:07:22] Speaker 01:
Sure.

[00:07:23] Speaker 04:
If the dog barks, the device sends a text.

[00:07:27] Speaker 04:
That's the way it works, right?

[00:07:29] Speaker 04:
The dog barks, they send a text to the other.

[00:07:33] Speaker 01:
they begin the process.

[00:07:35] Speaker 01:
There is one under the dog barking scenario, there is a text that says your dog is active and you can see the live video or audio.

[00:07:45] Speaker 04:
It happens if the owner decides he or she doesn't care and never

[00:07:51] Speaker 04:
ever response to that text.

[00:07:53] Speaker 04:
Okay.

[00:07:53] Speaker 04:
And then that audio is never transmitted, right?

[00:07:56] Speaker 01:
Are you asking me if there are certain situations where the claim limitation is not met in the operation of the Ferber device?

[00:08:03] Speaker 01:
Yes, there is, or exceptions.

[00:08:05] Speaker 01:
But the exception doesn't obviate the fact that the normal and intended operation of this device... You can't talk over me.

[00:08:13] Speaker 04:
Sorry.

[00:08:13] Speaker 04:
What I'm trying to give out is the transmission never begins until the only response to the text.

[00:08:22] Speaker 01:
There is an intervening step where the owner says, do I want to see it now or not?

[00:08:27] Speaker 01:
Yes.

[00:08:28] Speaker 04:
And if the owner says no, there's never live transmission.

[00:08:31] Speaker 04:
But if the owner says yes, there's no... Sorry, I'm interrupting you too.

[00:08:37] Speaker 04:
I shouldn't do that, but I get to and you don't.

[00:08:41] Speaker 04:
I'll try not to do it too much.

[00:08:43] Speaker 04:
But the problem is, this says that live audio is in response to the pet signal.

[00:08:51] Speaker 04:
But the live audio is only in response to the owner's signal.

[00:08:59] Speaker 04:
With due respect, I... The pet is what notifies the owner it can receive live transmission, but it is not in response to the pet.

[00:09:09] Speaker 01:
May I, Your Honor?

[00:09:10] Speaker 01:
I disagree, because there is no transmission without the important act of the pet, the input from the pet.

[00:09:19] Speaker 04:
But this doesn't say it that way.

[00:09:21] Speaker 04:
I mean, I think you've written a very narrow plain language here that has gotten you into problems, because it talks about the live audio being transmitted in response to input from the pet, which doesn't encompass

[00:09:37] Speaker 01:
of being transmitted in response to a request from the owner.

[00:09:42] Speaker 01:
The claim, as interpreted by the court, construed by tort, triggered or causally connected.

[00:09:48] Speaker 01:
With due respect, Your Honor, I believe it should not be disputed that there is a causal connection between input from the pet

[00:09:58] Speaker 01:
and what we know actually occurs, transmission of live audio or video.

[00:10:03] Speaker 01:
There is a causal connection, because without the input from the PET, that would never have occurred.

[00:10:07] Speaker 04:
Okay.

[00:10:08] Speaker 04:
I get your point on that.

[00:10:09] Speaker 04:
Can we go back to the Means Plus Function claim?

[00:10:11] Speaker 04:
Certainly.

[00:10:12] Speaker 04:
You said that you agree that delivery model is Means Plus Function.

[00:10:17] Speaker 04:
Correct.

[00:10:17] Speaker 04:
Which means you're confined to the structure and the patent.

[00:10:21] Speaker 04:
Correct.

[00:10:22] Speaker 04:
And equivalence.

[00:10:25] Speaker 04:
Where did you argue equivalence?

[00:10:27] Speaker 01:
We don't have to argue equivalence, Your Honor, to begin with.

[00:10:31] Speaker 01:
Are you talking, I assume you're talking about the dispenses from the treat, the second of the two limitations focused on by the district court?

[00:10:38] Speaker 01:
I'm just talking about the structure.

[00:10:39] Speaker 04:
The structure that Patton uses is a carousel, and the infringing device does it.

[00:10:45] Speaker 01:
Your Honor, that's only one of the several embodiments of structure that are set forth.

[00:10:50] Speaker 01:
There is.

[00:10:51] Speaker 01:
There is, specifically.

[00:10:54] Speaker 01:
I'll point it out to you.

[00:10:55] Speaker 01:
I can cite you letter and verse.

[00:10:58] Speaker 01:
The specification teaches the use of mechanism configured to inject the treat under the floor, Appendix 56, as well as the use of one or more of the carousel.

[00:11:10] Speaker 05:
It's not helpful on a patent that looks like this to say somewhere on this page.

[00:11:16] Speaker 05:
It's a column line method.

[00:11:17] Speaker 01:
All right.

[00:11:17] Speaker 01:
Appendix 56.

[00:11:19] Speaker 01:
Column 5, 6 through 7.

[00:11:22] Speaker 01:
It talks about ejecting a treat onto the floor.

[00:11:27] Speaker 01:
And in Appendix 56-6, 48-52, it talks about one or more of a carousel, slide, bin, actuator, which is another word for piston, motor for delivering the treats.

[00:11:40] Speaker 01:
It talks further on about the carousel, also to be considered a bin or other container that can be coupled to a motor or a chute.

[00:11:47] Speaker 01:
The furball treat tosser, your honors, constitutes a mechanism that ejects the treat onto the floor, includes one or more

[00:11:55] Speaker 01:
of the carousel, slide bin, actuator, and motor.

[00:11:57] Speaker 01:
In fact, what it does, it includes a bin which holds the treat, dispenses it to the pet via a piston, which is literally an actuator, and then retracts and extends to launch or eject.

[00:12:11] Speaker 01:
The structure that covers that specifically is in fact disclosed.

[00:12:15] Speaker 01:
And the district court's error here was it agreed with that in the original claim construction.

[00:12:20] Speaker 01:
And then without giving any notice, I understand this court has sanctioned rolling claim construction, but only in situations where complicated cases, where there is a hearing or evidentiary trial, where new matter comes in, and where the other side, the affected party, has a chance to see and respond.

[00:12:38] Speaker 01:
You know what the district court did is, out of the blue,

[00:12:41] Speaker 01:
It took proper claim construction and then it suddenly limited that to only one of the structures or the embodiments, the carousel.

[00:12:50] Speaker 01:
And it disregarded all of the other alternative embodiments and it violated the cardinal sin of patent law

[00:12:56] Speaker 01:
which is to improperly import a limitation or in this case a preferred embodiment into the claim.

[00:13:02] Speaker 01:
Nowhere in the claim does it limit to a carousel.

[00:13:05] Speaker 01:
That was only one of several embodiments.

[00:13:08] Speaker 01:
So if the structure that's set forth at these locations throughout the patents

[00:13:12] Speaker 01:
does provide for bins, actuators, or pistons, slides, exactly the things that are found in the Furbo, that is covered.

[00:13:21] Speaker 01:
At a minimum, Your Honor, that creates a genuine issue of material fact, as does the beginning transmission.

[00:13:28] Speaker 01:
The judge here invaded the purview and denied Doggy Phone its day in court because it took what are genuine issues of material fact.

[00:13:36] Speaker 01:
The fact that the district court believed in its own opinion that these were interpreted one way or should be applied one way.

[00:13:44] Speaker 01:
But it's the purview of the jury when it comes to factual, the scope of these equivalences or in direct or literal infringement.

[00:13:52] Speaker 01:
With respect to equivalence, Judge Cunningham, you ask, why didn't you argue that?

[00:13:57] Speaker 01:
Well, it's because there was a bit of a slight of hand.

[00:14:05] Speaker 01:
There was a slight of hand right here, because the district court provided the claim construction, which Doggie Foam looked at and said, great.

[00:14:12] Speaker 01:
In fact, they believed the district court's claim construction.

[00:14:15] Speaker 01:
They brought summary judgment of its own accord.

[00:14:17] Speaker 01:
And then they get to the summary judgment, and without any warning, the district court then changes the claim construction, not based on any new evidence or anything like that, disregarded Doggyphone's own experts in favor of that of Tomathon, which is improper because it wasn't a credibility determination as argued by Tomathon.

[00:14:36] Speaker 01:
There was no evidentiary hearing.

[00:14:38] Speaker 01:
There was no opportunity to evaluate credibility.

[00:14:41] Speaker 01:
And they denied Doggyphone a stay in court, and that's all it's asking for on these genuine issues of material fact.

[00:14:47] Speaker 05:
You have used your rebuttal time.

[00:14:50] Speaker 05:
Restore it.

[00:14:51] Speaker 05:
Yet the clock is for the entire thing.

[00:14:53] Speaker 05:
Sure.

[00:14:55] Speaker 05:
And we'll hear from Juro.

[00:14:59] Speaker 01:
Thank you, Your Honor.

[00:15:00] Speaker 05:
Sorry.

[00:15:02] Speaker 05:
Both names wrong.

[00:15:03] Speaker 05:
Sorry.

[00:15:08] Speaker 02:
Thank you, Your Honor.

[00:15:10] Speaker 02:
May it please the court, I'd like to pick up

[00:15:14] Speaker 02:
On that last conversation regarding the dispenses of treat, means plus function limitation, I think there are two aspects that are important to cover here.

[00:15:24] Speaker 02:
The first being the progression of the court's claim construction and whether or not notice was provided of the eventual final construction set forth in the summary judgment.

[00:15:34] Speaker 02:
And the second one being what the actual corresponding structure is in the patent.

[00:15:39] Speaker 02:
First, regarding the procedural note.

[00:15:42] Speaker 02:
In the original claim construction,

[00:15:43] Speaker 02:
the court explicitly pointed to figures three and four when identifying the corresponding structure for this dispense-as-a-treat limitation.

[00:15:52] Speaker 02:
And if you look at figures three and four, you see that carousel structure, the slide, the activation door, the exact structure that the court eventually then described in further detail verbally in the summary judgment order.

[00:16:03] Speaker 02:
This was sufficient at least for TomoFund to obtain supplemented expert report, supplemented expert analysis, with respect to means plus function, construction, and that full corresponding structure.

[00:16:16] Speaker 05:
Was there reference in the claim construction order to some of the other structures that are mentioned in the spec, the ones, say, right at the top of column three,

[00:16:30] Speaker 05:
the ones in column five that I think we heard something about, which go beyond the carousel.

[00:16:36] Speaker 05:
So at the top of column three, one example, a troop bin is a container that includes an activatable door configured to open and release one or more treats stored in the bin, or a rotating vertical wheel, like a ferris wheel or something, that notches baskets to dispense the treats.

[00:16:55] Speaker 05:
and then it talks about the carousel.

[00:16:58] Speaker 05:
These all seem like alternatives, which are right there in the spec.

[00:17:02] Speaker 02:
Sure.

[00:17:02] Speaker 02:
So I believe the first of those, the activatable door that released the tree, is describing that main carousel embodiment, what happens.

[00:17:10] Speaker 02:
The carousel rotates at the top.

[00:17:12] Speaker 02:
There's an activatable door underneath it that drops a tree down through a chute.

[00:17:15] Speaker 02:
So I think that reference is actually still describing that primary container that includes an activatable door.

[00:17:23] Speaker 05:
That doesn't look like

[00:17:24] Speaker 05:
The carousel is just this sort of wagon wheel pasta-like thing sitting on top of a tray.

[00:17:30] Speaker 05:
And part of what it's sitting on is open, and the rest of it is actually a tray.

[00:17:37] Speaker 05:
And so as you turn it, eventually what's between the little spokes of the wagon wheel will get into the opening and fall down.

[00:17:45] Speaker 05:
That doesn't sound like a container that includes an activatable door.

[00:17:53] Speaker 02:
In that scenario, I think, Your Honor, the container is the little wedge within the carousel, and there's an activatable door that opens under the carousel.

[00:18:01] Speaker 02:
Am I incorrect about that?

[00:18:03] Speaker 05:
Well, there's no activatable door in figure three.

[00:18:07] Speaker 05:
That's just a hole.

[00:18:13] Speaker 05:
Actually, anyway.

[00:18:18] Speaker 02:
Sure.

[00:18:18] Speaker 02:
But even looking at these alternatives... It's called an opening.

[00:18:21] Speaker 05:
Sure, sure.

[00:18:22] Speaker 02:
Even looking at these alternatives, none of them are a coherent structure, right, sufficient to actually dispense a treat from a treat bin to the pet, and a coherent structure that matches what's in the fur bow, right?

[00:18:38] Speaker 02:
You have to have both of those things.

[00:18:39] Speaker 02:
There has to be an entire structure, and it has to match what's in the fur bow, either identically or equivalent.

[00:18:47] Speaker 02:
And so doggie phone keeps pointing to these broadening statements, these alternative embodiment statements.

[00:18:53] Speaker 02:
But at no point does the patent or doggie phone put those things together into a coherent structure, which is necessary.

[00:18:59] Speaker 03:
How do you respond to opposing counsel's argument that there was this, you call it progression of claim construction, and they didn't have opportunity to respond to the change in claim construction?

[00:19:11] Speaker 02:
I think they did have an opportunity to respond.

[00:19:13] Speaker 02:
As I mentioned, the original claim construction identified figures three and four as corresponding structure.

[00:19:18] Speaker 02:
And if you look at figures three and four, it has that carousel, chute, activatable door limitation.

[00:19:24] Speaker 02:
And again, this was sufficient for TomoFund to obtain expert reports.

[00:19:28] Speaker 02:
One party did obtain expert reports, even after TomoFund obtained a supplemented expert report on that point.

[00:19:33] Speaker 02:
DoggyPhone didn't respond.

[00:19:34] Speaker 02:
So DoggyPhone has never presented any expert analysis under a means plus function construction for this element

[00:19:41] Speaker 02:
with any corresponding structure, regardless of what corresponding structure you're looking at.

[00:19:46] Speaker 03:
When was the first time they were put on notice of the evolution of cloned construction here?

[00:19:54] Speaker 03:
When was the first time they became aware of it?

[00:19:57] Speaker 02:
Do you know?

[00:19:58] Speaker 03:
The problems in general.

[00:19:59] Speaker 03:
I'll put it that way.

[00:20:00] Speaker 02:
Sure.

[00:20:00] Speaker 02:
The original construction order, because it's still pointed to

[00:20:03] Speaker 02:
figures three and four in the panel.

[00:20:06] Speaker 05:
Just to be clear, when you say pointed to three and four, I think you're talking about the bottom of appendix page nine, which is a C also, figures C and four.

[00:20:18] Speaker 05:
That is, when you say pointed to, that material at least doesn't say, and the full set of corresponding structures

[00:20:29] Speaker 05:
is the set represented by three and four.

[00:20:31] Speaker 05:
It's just C also after referring more broadly to sum of column six.

[00:20:41] Speaker 05:
So you wouldn't read that to be a limiting identification of structures.

[00:20:50] Speaker 02:
I would and we did, as a matter of fact, and that's why we obtained supplemented expert reports.

[00:20:55] Speaker 05:
Was a C also cite?

[00:20:57] Speaker 02:
Yes, because in particular, if you look at the sentence before that, like this EG sentence, one or more of a carousel slide, Ben actuator, motor for delivering treats, that statement is on its face not sufficient structure.

[00:21:12] Speaker 02:
to complete this act of dispensing a treat.

[00:21:14] Speaker 02:
And you have to have sufficient corresponding structure.

[00:21:17] Speaker 02:
So we read this C also, figures three and four clarification, as also identifying the structure of figures three and four as the corresponding structure.

[00:21:28] Speaker 05:
Can you talk about the system begins transmission issue, and why I think one way I think I was understanding

[00:21:42] Speaker 05:
The argument that we just heard is that there, too, there was, in effect, a change of claim construction.

[00:21:50] Speaker 05:
The original claim construction said trigger or causally connected, triggered by or causally connected by.

[00:22:00] Speaker 05:
Causally connected by does not mean the direct cause or the sole cause.

[00:22:08] Speaker 05:
But the ultimate summary judgment ruling was that

[00:22:12] Speaker 05:
The barking is not enough because sometimes it doesn't do anything, even when it does lead to the text message recipient sending a signal back.

[00:22:26] Speaker 05:
It's one of two causes in series, and that's causally connected to the beginning of the transmission.

[00:22:35] Speaker 02:
Sure.

[00:22:35] Speaker 02:
So the original plane construction did not construe against transmission.

[00:22:41] Speaker 02:
in response to as triggered by or otherwise causally connected.

[00:22:45] Speaker 02:
The court rejected Tomo Fund's proposed construction of triggered, where we were pointing to multiple instances in the record of doggie phones saying triggered by.

[00:22:58] Speaker 02:
And the court pointed to other instances in the record where doggie phones said triggered by or otherwise causally connected.

[00:23:04] Speaker 02:
And the court in doing so told us limiting this strictly to triggered is not warranted.

[00:23:08] Speaker 02:
Therefore, at the end of the day, we ended up with plain and ordinary meaning.

[00:23:12] Speaker 05:
So you're saying it's not as though there was a claim construction at the claim construction stage that said,

[00:23:23] Speaker 05:
triggered or anything that constitutes causally connected.

[00:23:27] Speaker 05:
Correct.

[00:23:27] Speaker 02:
OK, correct.

[00:23:29] Speaker 02:
Yes, the construction was plain and ordinary.

[00:23:31] Speaker 02:
Meaning, which doggie phone?

[00:23:32] Speaker 04:
But what you just told me suggested that she thought it was something more generous than just triggered.

[00:23:40] Speaker 02:
I'm not sure that the district court judge thought it was something more generous than that.

[00:23:45] Speaker 04:
But she rejected your argument that it was just triggered.

[00:23:47] Speaker 02:
Yes, yes.

[00:23:47] Speaker 02:
The point was it wasn't warranted to limit it to that one explicit term by what was on the record.

[00:23:55] Speaker 05:
What was the underlying thing that felt too narrow about triggered?

[00:24:02] Speaker 02:
It was the statements in the record, in other portions of the record, where Doggie Phone had said, triggered by or otherwise causally connected.

[00:24:11] Speaker 02:
So the court wasn't comfortable limiting to just triggered by because of these other statements in the record that said, triggered by or otherwise causally connected.

[00:24:19] Speaker 05:
And how, as a substantive matter, did the ultimate summary judgment determination, which said there has to be the thing that

[00:24:32] Speaker 05:
begins the transmission is the act of the human saying, show me.

[00:24:39] Speaker 05:
Yeah.

[00:24:42] Speaker 05:
I'm sorry.

[00:24:42] Speaker 05:
How does, how does that differ from a trigger construction?

[00:24:49] Speaker 02:
trigger sounds like you're going to apply the plain ordinary meaning of in response to.

[00:24:54] Speaker 02:
Right.

[00:24:55] Speaker 02:
I mean, the court did not reference triggered or causally connected at all when it was examining the meaning of in response to.

[00:25:02] Speaker 02:
The court said in response to means in response to because it's the plain and ordinary meaning of that term.

[00:25:07] Speaker 05:
And there's another way to ask it is, on the ultimate view that underlies the summary judgment ruling, how is that consistent with having rejected your proposed requirement of trigger in the claim construction proceeding?

[00:25:27] Speaker 02:
In its analysis, of course.

[00:25:29] Speaker 05:
What distance is there between those two things?

[00:25:31] Speaker 02:
To be honest, I'm not sure, Your Honor, but the court didn't analyze the claim under the term triggered.

[00:25:36] Speaker 02:
The court did not analyze it in that lens at all.

[00:25:39] Speaker 04:
If the court went to plan an ordinary meeting and then implicitly used trigger, then it's still wrong if trigger is too limiting.

[00:25:50] Speaker 02:
But there's no evidence that it implicitly used trigger.

[00:25:53] Speaker 02:
The court relied on and pointed to expert analysis from Tomo Fund's expert.

[00:25:59] Speaker 04:
Exploring what in response to what that responsive relationship was where tumble funds expert I mean the other way to read it is that the in response to has to be indirect response to Because otherwise clearly the live audio is ultimately in response to the pets barking

[00:26:21] Speaker 02:
I think that's where this begins term comes into play.

[00:26:25] Speaker 04:
You're moving me to a third definition.

[00:26:28] Speaker 02:
I'm not trying to move you.

[00:26:30] Speaker 02:
I think there's an interplay between the use of the word begins and this responsive relationship that we're talking about.

[00:26:37] Speaker 02:
So we're not just saying that the transmission broadly is responsive to input from the pet.

[00:26:41] Speaker 02:
We're saying transmission begins in response to the pet.

[00:26:44] Speaker 02:
We're isolating a single point in time and the thing that that is responsive to.

[00:26:50] Speaker 02:
and TomoFone's expert bind.

[00:26:52] Speaker 02:
It's responsive to the user's action, not input from the pet.

[00:26:56] Speaker 02:
And also, DoggyPhone, in its own summary judgment briefing, explicitly characterized it that way.

[00:27:01] Speaker 04:
So you're not keying on it in response to your Keying On Begins.

[00:27:05] Speaker 02:
The interplay of those two things.

[00:27:06] Speaker 04:
They're both relevant.

[00:27:08] Speaker 04:
Make that conclusion?

[00:27:10] Speaker 04:
This is a problem when you get plain and ordinary meaning, and it's hard to parse it in terms of the application to the specific facts.

[00:27:22] Speaker 05:
Sure.

[00:27:23] Speaker 05:
I thought the district court did, at least once, maybe twice even, italicize the word begins to say, this is the problem.

[00:27:31] Speaker 03:
It doesn't begin.

[00:27:32] Speaker 03:
But the pending page 37.

[00:27:33] Speaker 03:
Yes.

[00:27:34] Speaker 03:
I thought that the district court did what Judge Travato indicated.

[00:27:41] Speaker 02:
I'm sorry.

[00:27:42] Speaker 02:
What's the?

[00:27:42] Speaker 03:
Maybe I'm answering questions as opposed to you, but I was thinking a pending page 37 might be helpful in response to Judge Travato and Judge Hughes' questions.

[00:27:55] Speaker 02:
Sure.

[00:27:55] Speaker 02:
And there, the court, again, as I mentioned, is quoting doggy phone's own most of summary judgment.

[00:28:03] Speaker 02:
Beginning at line two, doggy phone states, Ferbo transmits a notification and begins transmission of audio and or video to the pet to the user's mobile device when the user clicks on the received notification.

[00:28:14] Speaker 02:
Similarly, beginning line seven,

[00:28:16] Speaker 02:
Furlough transmits a notification to the user's mobile device and begins transmission to the user's mobile device when the user clicks on the received notification.

[00:28:24] Speaker 02:
And again, that's quoting Doggyphone's own summary.

[00:28:26] Speaker 02:
Well, we understand how that operates.

[00:28:27] Speaker 04:
The real problem is, is this claim language, which says begins in response to, is it implicitly read as begins in direct response to or just begins in some causal connection to?

[00:28:41] Speaker 02:
I don't think any causal connection is sufficient.

[00:28:45] Speaker 02:
Um, primarily because, so Doggie Phone sort of characterized it in this but for way.

[00:28:51] Speaker 04:
How do we know if we all have a claim construction?

[00:28:53] Speaker 02:
But if you extract, well, we do have a claim construction.

[00:28:55] Speaker 02:
It's plain and ordinary meaning.

[00:28:56] Speaker 02:
And Doggie Phone advocated for that.

[00:28:58] Speaker 02:
Doggie Phone can't now say that plain and ordinary meaning is not sufficient.

[00:29:01] Speaker 02:
We have to reverse the trial court.

[00:29:03] Speaker 02:
when it asked for that claim.

[00:29:05] Speaker 04:
Do you agree that based upon the way the district court looked at this claim term and applied it to the inferential question here, that it implicitly reads in the word direct, that it begins in direct response to the pet's barking?

[00:29:23] Speaker 04:
No, I don't.

[00:29:25] Speaker 04:
Isn't that the basis for non-infringement, that it didn't begin in response to the pet, it began in response to the owner?

[00:29:32] Speaker 02:
Yes, but I don't think you have to read in the word direct there.

[00:29:34] Speaker 04:
Let's see if the logical reading of that conclusion.

[00:29:37] Speaker 02:
That's just what in response to means in the context of beginning transmission, right?

[00:29:42] Speaker 04:
It could mean in a causal chain too, and this is certainly a causal chain.

[00:29:49] Speaker 04:
But the other thing you get hurt you want is we get implicitly read and direct.

[00:29:53] Speaker 04:
If we say direct doesn't belong there, then how do we know that there's not a question of fact, whether this begins in response to the letter?

[00:30:01] Speaker 02:
Well, for one thing, it's a construction issue, right?

[00:30:04] Speaker 02:
Which, dog your phone.

[00:30:06] Speaker 04:
Well, it's a construction issue.

[00:30:08] Speaker 04:
And then once we get a construction, it's a question of generative effect of whether there's infringement.

[00:30:13] Speaker 04:
If direct isn't implicitly read in, then how do we know

[00:30:19] Speaker 04:
that there's not a genuine issue of whether it's in response to the pet or not.

[00:30:23] Speaker 04:
Their view is it's ultimately in response to the pet because the pet's the one that starts the tame, that sends the text, that allows the owner to request the video.

[00:30:33] Speaker 02:
Yeah, but that's based on this begins a process of transmitting, which is not what the claim says, right?

[00:30:38] Speaker 02:
The claim says begins transmission.

[00:30:40] Speaker 02:
It doesn't say it begins a process of transmission.

[00:30:44] Speaker 03:
Maybe a good note to end on would be

[00:30:46] Speaker 03:
Do you agree with this statement, which I think is a very friendly statement, that if we agree with the district court's ruling on summer judgment of non-infringement on one of the possible limitations, in that sense you would win?

[00:31:03] Speaker 02:
Absolutely, yes.

[00:31:07] Speaker 05:
Thank you.

[00:31:08] Speaker 05:
Thank you for your argument.

[00:31:15] Speaker 01:
We have a rebuttal.

[00:31:16] Speaker 01:
Three minutes.

[00:31:18] Speaker 01:
Thank you, Your Honor.

[00:31:20] Speaker 01:
I assume there are no questions on the third limitation.

[00:31:23] Speaker 01:
I'll focus just briefly on the two that were discussed.

[00:31:26] Speaker 01:
With respect to the triggered or causally connected, I think the most important of those limitations, the court was very interested by the discussion that happened.

[00:31:35] Speaker 01:
Because it's true the dog phone advocated the plain and ordinary meaning.

[00:31:40] Speaker 01:
Because based on the district court's

[00:31:42] Speaker 01:
discussion of claim construction, it understood the plain and ordinary meaning to be triggered or causally connected, which it consisted with the IPR.

[00:31:53] Speaker 04:
And because you got up here on your opening and said the district court gave a claim construction that triggered or causally corrected.

[00:32:01] Speaker 04:
That's not correct, is it?

[00:32:03] Speaker 04:
The district court gave a plain and ordinary meaning, construction.

[00:32:08] Speaker 01:
You're right, Your Honor.

[00:32:09] Speaker 04:
I guess what I understand is that if you read the whole record, that that's the understanding of what the plain and ordinary meaning was.

[00:32:18] Speaker 04:
But you understand those are two distinct things.

[00:32:20] Speaker 01:
I do understand, Your Honor.

[00:32:22] Speaker 01:
But I think that's what led to the problem.

[00:32:23] Speaker 01:
And we talk about this misdirect, because coming out of the claim construction, the argument for plain and ordinary meaning?

[00:32:31] Speaker 01:
We argue specifically triggered or causally connected in the briefing on claim construction.

[00:32:36] Speaker 01:
We argue that is the plain and ordinary meaning.

[00:32:39] Speaker 04:
That's not a claim of instruction.

[00:32:41] Speaker 04:
Did you argue that this claim term needed to be construed and that the proper construction included whatever we've been talking about with the causally –

[00:32:53] Speaker 04:
You didn't do that, did you?

[00:32:55] Speaker 01:
I don't believe we did, Your Honor.

[00:32:57] Speaker 01:
That's right, that's right.

[00:32:58] Speaker 01:
But Your Honor, coming out of claim construction, what happened was is that based on what the court said at claim construction, Doddy Phone believed that that term, limitation, meant triggered or causally connected.

[00:33:12] Speaker 01:
And it based its summary judgment and argument thereupon.

[00:33:14] Speaker 04:
We saw there was a dispute between the two of you about triggered or trigger or causally connected.

[00:33:20] Speaker 04:
Why don't you ask the District Court to specifically construe these claims?

[00:33:25] Speaker 04:
I mean, now that we don't know, you're asking us basically to construe them, because they don't have a claim in their very meaning that necessarily works for you or works for them.

[00:33:37] Speaker 01:
The reason I think we didn't, Your Honor, was because of the way the order was presented.

[00:33:41] Speaker 01:
We knew that the District Court rejected TAMA funds

[00:33:45] Speaker 01:
triggered only and said, no, no, no, this has to mean triggered or causally connected.

[00:33:50] Speaker 01:
So coming out of claim construction, Dalgafung believed that is how it would be applied at summary judgment.

[00:33:55] Speaker 01:
So when we got to summary judgment and the court suddenly said, oh, no, no, I didn't mean causally connected.

[00:34:01] Speaker 01:
I meant direct or the sole cause, as Judge Toronto has suggested.

[00:34:06] Speaker 01:
And that's the problem is that triggered or causally connected certainly does include what is occurring right here.

[00:34:13] Speaker 01:
And a reasonable jury could, and Taglum believes would find in that situation, there to be infringement.

[00:34:20] Speaker 01:
Thank you, Your Honor.

[00:34:21] Speaker 05:
Thank you.

[00:34:22] Speaker 05:
Thanks to both counsel.

[00:34:24] Speaker 05:
The case is submitted.