[00:00:00] Speaker 00:
Our last case this morning is master objects versus meta-platforms.

[00:00:06] Speaker 00:
2023, 1097.

[00:00:08] Speaker 00:
Start, Vincent, when you're ready.

[00:00:39] Speaker 03:
Good morning, Your Honours.

[00:00:40] Speaker 03:
If it may please the court.

[00:00:42] Speaker 03:
Metta and the transferee judge say that the transferee judge claimed construction had to be revisited in this case.

[00:00:49] Speaker 03:
Given that there were no new facts and that there was no new law and the plain black and white claim dispute that had been resolved by Judge Albright, that's the Texas Transferor Court, basically the argument is since there was no explanation given by the Texas judge,

[00:01:05] Speaker 03:
They could not apply a clearly erroneous standard in order to apply law of the case or reconsideration principles.

[00:01:14] Speaker 03:
But here, that standard does not require an explication.

[00:01:18] Speaker 03:
It's not a type of standard that requires some sort of explanation.

[00:01:21] Speaker 03:
The Supreme Court itself was very clear in this in Christensen.

[00:01:25] Speaker 03:
In that case, although not a patent case, this court did not provide an explanation as to its transfer, its decision on subject matter jurisdiction.

[00:01:36] Speaker 03:
Despite that fact, the Supreme Court said the standard is simply, is it plausible?

[00:01:41] Speaker 03:
You do not need it.

[00:01:42] Speaker 01:
Do you agree that if this case had stayed in the Western District of Texas before Judge Albright, he would have been free to alter his claim construction as the case progressed?

[00:01:51] Speaker 03:
It depends on the circumstances, Your Honor.

[00:01:53] Speaker 03:
As a general matter, no.

[00:01:55] Speaker 01:
I believe that Judge Albright... You don't think that he would have had the ability to alter his claim construction if it stayed in front of him?

[00:02:01] Speaker 03:
To be clear, if it was with respect to something that just wasn't to clarify, so if it was with an issue it already resolved, for example, if he had found that Meadow was still arguing on the synchronous term, that server initiation was part of his construction, even though he rejected that issue by adopting master objects construction, he would have been free to add that additional point, although he wouldn't have to, much like the district court in the Duffingen case,

[00:02:28] Speaker 03:
He could have simply said, you're not allowed to make that argument to the jury.

[00:02:31] Speaker 03:
I've already decided it.

[00:02:32] Speaker 03:
So in that context, yes.

[00:02:34] Speaker 03:
But if he were to revisit it totally anew, this was just, he was going to change his mind.

[00:02:38] Speaker 03:
He was just like, you know what?

[00:02:39] Speaker 03:
I've decided I disagree.

[00:02:41] Speaker 03:
I don't agree with master objects as to what query message means.

[00:02:44] Speaker 03:
That he could not do absent new facts or new law, or he himself deciding that his construction was clear, erroneous.

[00:02:51] Speaker 03:
He could decide that, and he could simply explain then that that is what happened.

[00:02:56] Speaker 01:
Okay, so if he thinks that he's made an error in his construction, you're at least admitting that he would be able to fix that error.

[00:03:03] Speaker 01:
He wouldn't need to just ride an erroneous construction all the way through the case.

[00:03:07] Speaker 03:
That's right.

[00:03:08] Speaker 03:
If he himself believes that the error was clearly erroneous, he's allowed to fix that construction.

[00:03:12] Speaker 03:
If that's in fact what Judge Albright also believed, if he'd actually applied that standard, and he found applying the clearly erroneous standard, I believe that Judge Albright clearly got it wrong, his decision wasn't plausible, he too would have been allowed to then revisit Judge Albright's decision.

[00:03:27] Speaker 03:
But that didn't happen here.

[00:03:28] Speaker 03:
The standard was simply not applied.

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And the standard itself is very important.

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It's not just important with respect to the orderly administration of justice as well as the self-expetition of the parties.

[00:03:40] Speaker 03:
For example, this case proceeded through fact and expert discovery on the George Albright's constructions on the eve of trial is when matters got upset.

[00:03:51] Speaker 03:
But it's also very important to the public's perception as to the fairness of the judiciary.

[00:03:56] Speaker 03:
So here, for example, to the public, it looks like

[00:03:59] Speaker 03:
If a patentee accused infringer with no new facts, no new law, which everyone is lucky enough to be in California or Texas, not understanding precedence, not understanding the actual facts of the case, that is what determines the outcome of the case.

[00:04:13] Speaker 03:
So this is a very important doctrine that should be adhered to, and that's why the case should be remanded and the law of the case should apply.

[00:04:22] Speaker 03:
So it's not just some sort of, well, is it unfair to the parties?

[00:04:27] Speaker 03:
It has broad implications for the court system than that.

[00:04:31] Speaker 03:
And this law of the case principle has not just been applied in cases like Christensen or in Texas American Oil, which are non-patent cases, by this court.

[00:04:41] Speaker 03:
But this court has followed these principles in many of its own decisions.

[00:04:44] Speaker 03:
For example, in the Torah decision,

[00:04:46] Speaker 03:
this court applied the law of the case to itself.

[00:04:50] Speaker 03:
It seems unfathomable that this court believes that it cannot upset its own claim constructions without applying the clearly erroneous standard, but yet the district courts are free to do that themselves.

[00:05:00] Speaker 03:
That's just not something that would be applicable in the case law.

[00:05:04] Speaker 03:
And this is why Metta has not been able to find a case on point where this court has said that its standard on

[00:05:12] Speaker 03:
Revisitation of claim constructions is meant to upset or depart from the doctrine of law of the case or reconsideration principles.

[00:05:20] Speaker 03:
It just works in line with it.

[00:05:22] Speaker 03:
It's not some exception.

[00:05:24] Speaker 03:
It is just in some circumstances.

[00:05:26] Speaker 03:
They are clearly exceptional that, for example, there is a legitimate claim construction dispute, or the claim constructions were made during a preliminary injunction, for example.

[00:05:35] Speaker 03:
In that situation, it would have been as the case developed.

[00:05:38] Speaker 03:
There would have been new facts.

[00:05:39] Speaker 03:
There would have been new evidence developed.

[00:05:42] Speaker 03:
And then, yes, you would revisit the case, because there is a new argument presented to you.

[00:05:45] Speaker 03:
But that is not this case, Your Honors.

[00:05:49] Speaker 01:
What is your best intrinsic evidence in support of your preferred construction of the term query messages?

[00:05:55] Speaker 03:
Our best intrinsic evidence with support to query message is the use of the actual term query message in conjunction with sending an XSAN string in the specification.

[00:06:07] Speaker 03:
So that's when it says you send in the service... Do you want to give me appendix page and column line?

[00:06:22] Speaker 03:
It is going to be appendix page.

[00:06:27] Speaker 01:
Which pattern are you looking at, too?

[00:06:29] Speaker 03:
It's pattern number 024.

[00:06:31] Speaker 03:
And it's going to be on column 19, as appendix page 8454.

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And it's a paragraph that begins with line 15, ending in line about 35.

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And it's the one that begins at step four, seven.

[00:06:48] Speaker 03:
The user types a third character C into the questlet.

[00:06:51] Speaker 03:
And then moving down to about line 27, it says, eventually the server quester receives notice of the third character appended to the input buffer and sends a new query A, B, C to the service.

[00:07:04] Speaker 03:
If you go to higher up on the same column, 19, the first line, one and two, it says, query message A and B to the service.

[00:07:12] Speaker 03:
So there, your honor, you can see that here, the server sends not just the change C,

[00:07:19] Speaker 03:
but they'll change ABC onto the service.

[00:07:22] Speaker 03:
That's also reflected in figure four, which it might actually be easier to see it there than it is to see it in the written words of the specification.

[00:07:30] Speaker 03:
So I would say that's our best intrinsic evidence.

[00:07:33] Speaker 03:
And the second best intrinsic evidence on that point, Your Honor, is just the plain breadth of many of the specifications references to what is sent between the client and the server.

[00:07:42] Speaker 03:
For example, in the abstract of the 024 itself, which is appendix page 8425, it talks about sending a character by character string.

[00:07:50] Speaker 03:
A character-by-character string does not exclude sending an extant string or sending just the changes.

[00:07:56] Speaker 03:
It's actually more obvious that that would be a partial query string.

[00:08:03] Speaker 03:
A partial query string generally consists of multiple characters, while it just the change normally but not always consists of one character.

[00:08:10] Speaker 03:
Send is character-by-character strings implies multiple characters.

[00:08:14] Speaker 03:
So basically what Meadow does is say that despite these very plain

[00:08:20] Speaker 03:
words of the claims with his plain breath that one single sentence that is embodiment-specific and permissive, and that's their allow instead of sentence, disavows.

[00:08:34] Speaker 01:
Do you agree that the language you point us to in column 19 is really talking about sending characters on the back end?

[00:08:40] Speaker 03:
It is, your honor, sending characters on the back end.

[00:08:43] Speaker 03:
That is correct.

[00:08:44] Speaker 01:
as opposed to from the client to the server?

[00:08:47] Speaker 03:
That's correct, yes.

[00:08:48] Speaker 03:
But it is the only use of the term query message in the entire O2 floor specification.

[00:08:54] Speaker 03:
It is frankly ridiculous to think that person of skill reading this would say, aha, you use the term query message in conjunction with setting an extant string, but I am to understand in other situations, hey, you're not supposed to use an extant string.

[00:09:10] Speaker 03:
There's no clear manifest intent based on this specification that anyone would conclude that.

[00:09:16] Speaker 03:
Um, which I guess to use a simple sort of analogy, I mean, what Mere is saying is if I had a patent that said, um, use a boat on a body of water.

[00:09:25] Speaker 03:
Um, and I had many steps in specification saying that, and there was one sentence that says, uh, you can use a boat on a, you may use a boat on a pond opposed to on a lake that a boat captain would be, okay, I can't use this on a lake.

[00:09:41] Speaker 03:
That's just, it's, it's a term.

[00:09:42] Speaker 03:
It's not,

[00:09:43] Speaker 03:
If there's no clear manifest intent being expressed now, it's not something that someone would take away from a statement saying allow instead of a one permissive statement, given the broad statement such as then single by single character or send something in the specification.

[00:10:00] Speaker 01:
On the asynchronous term, Your Honor, the best evidence is probably- I believe that sending just the changes doesn't exclude sending multiple characters at a time?

[00:10:11] Speaker 03:
Sending just the changes?

[00:10:13] Speaker 03:
Sending just the changes does not, yes, I will concede that sending just the changes does not exclude sending multiple characters.

[00:10:20] Speaker 03:
In most instances, you'd be sending one character, but there are situations where you could be sending multiple characters and it'd be just the change that is correct.

[00:10:29] Speaker 03:
But again, Metta hasn't pointed to any evidence other than their one sentence about allow of instead of on just the changes.

[00:10:36] Speaker 03:
There's no other sentences in the specification discussing that.

[00:10:43] Speaker 03:
On the asynchronous construction, the best intrinsic evidence probably comes from the 024, sorry, the 073 patent.

[00:10:51] Speaker 03:
And that's going to be on page 30, sorry, on page 8598, column 34, line 17 to 21.

[00:11:09] Speaker 03:
And there it says, a full-page Questful employment can also be used to provide a scale-backed search interface for those browser devices that do not allow asynchronous communication.

[00:11:20] Speaker 03:
That is, browser devices that do not support Flash, Ajax, or similar technologies.

[00:11:26] Speaker 03:
On page 15, which is also appendix page 15 of his order,

[00:11:30] Speaker 03:
Judge also said that Ajax is excluded from his construction as a server initiation construction of the patents.

[00:11:38] Speaker 03:
That can't be correct under the 073 specification, because Ajax clearly is a form of asynchronous communication.

[00:11:45] Speaker 03:
Similarly, on page 8597 in column 32,

[00:11:52] Speaker 03:
It says the six lines 5762.

[00:11:55] Speaker 03:
It says something very similar.

[00:11:56] Speaker 03:
There it says, figure 24B shows a screenshot of a web page specifically designed to use Ajax rather than Adobe Flash.

[00:12:04] Speaker 01:
What were the line numbers?

[00:12:05] Speaker 01:
I'm in column 32.

[00:12:06] Speaker 01:
What were the line numbers you took?

[00:12:08] Speaker 03:
It should be 57 to 62.

[00:12:09] Speaker 00:
Counsel, you're into your buttle time.

[00:12:13] Speaker 00:
You can save it or continue.

[00:12:16] Speaker 03:
If there are no further questions, I will save it.

[00:12:26] Speaker 02:
Thank you, your honor.

[00:12:45] Speaker 02:
May it please the court.

[00:12:47] Speaker 02:
In this case, each of the three independent grounds for summary judgment and for affirmance

[00:12:56] Speaker 02:
ultimately originate from what the common specification, common to all four patents in the case, tells the public about the scope of the invention and about the meaning of terms in the claims.

[00:13:10] Speaker 02:
In its arguments, the common thread through the briefs and some here today is that Master Objects tries to distance itself from what it told the public

[00:13:19] Speaker 02:
this invention was.

[00:13:20] Speaker 00:
Wasn't the court in error regarding collateral estoppel?

[00:13:25] Speaker 00:
Weren't the claims in the context different?

[00:13:29] Speaker 02:
The claims have some minor changes, but ultimately the issue here is exactly the same as the issue in the Google case.

[00:13:40] Speaker 02:
So here the question is, does the statement about the protocol of the present invention, the fact that it sends just the changes,

[00:13:49] Speaker 02:
Does that limit the scope of the invention and therefore the claims?

[00:13:53] Speaker 02:
That's the question here today.

[00:13:55] Speaker 02:
And that is exactly the question that Judge Hamilton answered in the Google case.

[00:14:01] Speaker 02:
In that case, she says, and it's at page 12 of her opinion, she finds that that statement in the common specification, and again, that was as to the 529 patent, but it's the same specification in each of these patents here, that that statement was made about the invention

[00:14:19] Speaker 02:
And she cites to Trading Techs and to Honeywell, showing that what she's finding is that that statement about the invention limits the scope of the claims.

[00:14:30] Speaker 02:
Now, to be sure, years later, in an effort to get around that Google decision, Master Objects made some changes to the claims here.

[00:14:41] Speaker 02:
It points out in its briefing some of the differences, but it fails to

[00:14:46] Speaker 02:
Note the similarities.

[00:14:48] Speaker 02:
So for example, in the exemplary claim, the claim that master objects identified as exemplary in this case, claimed one of the 024 pattern.

[00:14:58] Speaker 02:
That claim continues to use lengthening string.

[00:15:01] Speaker 02:
It continues to refer to additional characters and the message that is being sent from the client to the server.

[00:15:09] Speaker 02:
That query message in this case is performing exactly the same function as

[00:15:16] Speaker 02:
the messages that issue in the Google case.

[00:15:18] Speaker 02:
It's sending information from the client about what the user is typing to the server.

[00:15:25] Speaker 01:
Even if we disagree that collateral stopper is applicable, just based on the intrinsic record alone, do you believe that that is sufficient to support up your construction of query messages?

[00:15:36] Speaker 02:
Yes, it is.

[00:15:38] Speaker 02:
It absolutely is.

[00:15:39] Speaker 02:
And that's because the statement, the specification speaks to the present invention.

[00:15:46] Speaker 02:
Right?

[00:15:46] Speaker 02:
The protocol of the present invention, it says, sends just the changes from the client to the server.

[00:15:54] Speaker 02:
And under the case law, whether it's Honeywell, whether it's trading technologies, whether it's others, that's sufficient to limit the scope of the invention and therefore the claims.

[00:16:05] Speaker 02:
Yes, Your Honor.

[00:16:07] Speaker 01:
I appreciate that you were looking at me knowing that I wanted to ask you a question.

[00:16:10] Speaker 01:
How do we know that that's about the invention as a whole as opposed to about a specific embodiment in terms of the language in that column?

[00:16:19] Speaker 02:
We see that in the way that that sentence or that portion of the sentence is structured.

[00:16:23] Speaker 02:
So I'll just read it here.

[00:16:25] Speaker 02:
It says, quote, the protocol of the present invention provides a number of messages that allow the client cluster to send just the changes to the input buffer instead of sending the entire input buffer.

[00:16:41] Speaker 02:
So what that tells us is two things.

[00:16:44] Speaker 02:
One is it speaks to the present invention, the protocol of the present invention.

[00:16:48] Speaker 02:
So it tells us what functionality that has.

[00:16:51] Speaker 02:
And then it also tells us how that functionality is implemented in a specific embodiment, the client cluster.

[00:16:57] Speaker 02:
And it tells us the relationship there.

[00:17:00] Speaker 02:
The protocol of the present invention allows the embodiment to operate in that way.

[00:17:07] Speaker 02:
And so that tells us essentially it enables the specific embodiment.

[00:17:11] Speaker 02:
And so the argument that we hear from master objects that while this is just talking about the quest objects embodiment, it's not true to the statement and the specification.

[00:17:24] Speaker 00:
Didn't the PTAB and earlier district court decisions go the same way on claim construction as the Western District?

[00:17:35] Speaker 02:
So the earlier district court cases did not address this issue directly.

[00:17:39] Speaker 02:
The PTAB did in a preliminary construction applying a different standard.

[00:17:46] Speaker 02:
So it was construing the terms there under the broadest reasonable interpretation standard.

[00:17:52] Speaker 02:
And ultimately in its final written decision did not adopt this construction.

[00:17:58] Speaker 02:
Of course, if it did, that construction's also not binding.

[00:18:02] Speaker 02:
And so in the, as to the PTAB,

[00:18:06] Speaker 02:
That's the situation as to the Western district of Texas.

[00:18:10] Speaker 02:
Uh, it did adopt master objects, proposed construction, at least preliminarily.

[00:18:16] Speaker 02:
Uh, the court emailed that set of constructions.

[00:18:19] Speaker 02:
Uh, and then after the hearing issued a minute order saying that it had stayed with the preliminary constructions, but never explained its reasoning.

[00:18:28] Speaker 02:
And so, uh, it's unclear why that.

[00:18:32] Speaker 02:
the Texas court had come to that construction in its analysis.

[00:18:38] Speaker 01:
Do you have a response to opposing counsel's arguments regarding ability to change the construction between when it was in the Western District and then it was in the Northern District of California?

[00:18:50] Speaker 01:
And I heard some law of the case arguments.

[00:18:51] Speaker 01:
I just want to know your general response to some of the statements that were made.

[00:18:55] Speaker 02:
Yes, Your Honor.

[00:18:57] Speaker 02:
We do.

[00:18:59] Speaker 02:
Master of ethics reference Christensen, they cite this in their briefs.

[00:19:03] Speaker 02:
They actually say in their reply brief that we didn't respond to it.

[00:19:05] Speaker 02:
That's not accurate.

[00:19:07] Speaker 02:
We addressed it in our red brief at page 54.

[00:19:10] Speaker 02:
Fundamentally, they misread Christensen.

[00:19:14] Speaker 02:
So what Christensen says is, quote, a court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance.

[00:19:28] Speaker 02:
So that's the power of the

[00:19:30] Speaker 02:
And then it goes on to give some abstract examples of when a court might exercise that discretion.

[00:19:37] Speaker 02:
And so here, consistent with here in claim construction, consistent with that power, this court has acknowledged that district courts are free to conduct ruling claim construction.

[00:19:53] Speaker 02:
They may and sometimes must revisit, alter, modify, expand on their constructions.

[00:20:01] Speaker 02:
And as a practical matter, in cases around the country, in courts around the country, in case after case, judges do just that.

[00:20:10] Speaker 02:
And we heard from opposing counsel, I believe in the end, that Judge Albright, had he kept this case, would have been able to alter his construction if he believed that it was wrong.

[00:20:21] Speaker 02:
And of course he could.

[00:20:22] Speaker 02:
That happens every day.

[00:20:24] Speaker 02:
What we see in the law of the case cases are situations typically where

[00:20:30] Speaker 02:
Judges have either applied that construction to reach a liability decision.

[00:20:35] Speaker 02:
That case goes up on appeal, comes back down for damages, and now somebody on appeal with damages wants to revisit claim construction.

[00:20:45] Speaker 02:
Or we see a dispute between two courts or a difference of opinion between two courts about jurisdiction.

[00:20:53] Speaker 02:
And so we see changes in a transfer decision that bounce from court to court for two years without resolution.

[00:21:00] Speaker 02:
where ultimately the Supreme court said, look, somebody's got to make a decision, go forward.

[00:21:07] Speaker 02:
That's not this case.

[00:21:09] Speaker 02:
What this case is, effectively what we're hearing from the other side is merely because this case was transferred, now judge also didn't have the ability that judge Albright did to revisit and change the construction.

[00:21:25] Speaker 02:
And that just doesn't track the law.

[00:21:29] Speaker 02:
There are also

[00:21:30] Speaker 02:
a couple of elements.

[00:21:31] Speaker 02:
And, of course, we see it in the cases that are cited.

[00:21:34] Speaker 02:
District courts sometimes do treat claim construction as a reconsideration issue, when in their discretion that feels appropriate.

[00:21:42] Speaker 02:
And when they do that, they apply the reconsideration standard.

[00:21:45] Speaker 02:
Judge Alsop has done that in prior cases.

[00:21:48] Speaker 02:
But here on the procedural posture of the case and his analysis of the underlying evidence, he didn't feel that was appropriate.

[00:21:56] Speaker 02:
He felt it was appropriate to weigh in.

[00:21:59] Speaker 01:
Let me turn to the asynchronous constructions as well.

[00:22:02] Speaker 01:
And just to make sure I'm understanding what was happening procedurally in the Northern District of California.

[00:22:07] Speaker 01:
Did the Northern District of California ultimately adopt a construction that kind of combined up the one proposed by master objects and by Metta?

[00:22:16] Speaker 02:
The way I understood Judge Alsop's opinion in California was that he applied the construction proposed by master objects.

[00:22:25] Speaker 02:
and adopted preliminarily by the Texas court.

[00:22:28] Speaker 02:
But he also looked at that construction in light of the intrinsic evidence.

[00:22:32] Speaker 02:
So he didn't have the benefit of that analysis, so he did his own analysis and he ultimately applied the final construction.

[00:22:42] Speaker 02:
He says that in his order that although he could change that construction, he chose to simply apply it.

[00:22:49] Speaker 01:
So I'm not sure if I have the answer.

[00:22:51] Speaker 01:
So is it a combination of a construction that Metta proposed and Master Objects proposed that Northern District of California ultimately adopted on that term?

[00:23:01] Speaker 02:
I'm sorry, I misunderstood your honor's question.

[00:23:03] Speaker 02:
No, this is Master Objects construction.

[00:23:08] Speaker 02:
So in the court in Texas, Master Objects proposed two different constructions.

[00:23:15] Speaker 02:
So one of the constructions it proposed is

[00:23:18] Speaker 02:
the one ultimately that governed this case, which was each side of the communication is free to communicate without waiting for the other side.

[00:23:29] Speaker 02:
The other construction that master objects proposed was that each side of the communication can communicate with the other side in a non-blocking manner.

[00:23:39] Speaker 02:
That non-blocking construction, that reflects the arguments we see in the briefing.

[00:23:46] Speaker 02:
Essentially that all asynchronous means is that the two sides can send messages, talk over each other, in other words.

[00:23:54] Speaker 02:
But the construction that was actually adopted, the one proposed by master objects requires each side of the communication be free to communicate without waiting for the other side.

[00:24:07] Speaker 02:
And so what that means is that.

[00:24:10] Speaker 01:
And that's what happened.

[00:24:12] Speaker 01:
I'm sorry.

[00:24:14] Speaker 01:
Okay.

[00:24:14] Speaker 01:
I think that's what happened.

[00:24:15] Speaker 01:
In Texas, I thought it adopted the master objects construction on asynchronous.

[00:24:27] Speaker 01:
Then I thought was happening, and obviously correct me if I'm misstating this, was that

[00:24:31] Speaker 01:
Then in California, that construction was there, but then there was a further explanation that maybe appended on something that Metta had proposed.

[00:24:39] Speaker 01:
Is that right, or am I misstating that?

[00:24:42] Speaker 02:
It's roughly right, but it's a little nuanced.

[00:24:45] Speaker 02:
So MasterObjects proposed the two different constructions in Texas, and then we proposed a different construction altogether, one that just reflected what the definition and the specification says.

[00:24:58] Speaker 02:
The Texas court picked this without waiting for the other side construction between the two that master object offered.

[00:25:06] Speaker 02:
So that was the state of the case when it came to California.

[00:25:10] Speaker 02:
What judge also did is he said, I have the power to rewrite that or revisit it, but I'm not going to, I'm going to apply that construction.

[00:25:18] Speaker 02:
But he did look into what does the specification say about asynchronous?

[00:25:24] Speaker 02:
What are the definitions?

[00:25:25] Speaker 02:
What does it tell us to better understand that construction?

[00:25:28] Speaker 02:
Now master objects argument is, well, the court in Texas basically resolved this question about initiation.

[00:25:39] Speaker 02:
Can a server, and it must this server be able to initiate communication?

[00:25:44] Speaker 02:
But that's actually not clear because what the Texas court did was simply pick between the two constructions master objects proposed, which are different from each other.

[00:25:55] Speaker 02:
And we don't know why he did it.

[00:25:56] Speaker 02:
And we don't know what the reasoning is.

[00:25:58] Speaker 02:
So where this idea that, that judge also appended or modified that construction comes from is from their argument.

[00:26:06] Speaker 02:
But what he actually did is he applied the construction that they proposed.

[00:26:10] Speaker 02:
He definitely analyzed it and its implications in light of what the specification says.

[00:26:16] Speaker 02:
Because what that construction requires is that the server be able to communicate without waiting for the client, which means it can start a conversation.

[00:26:25] Speaker 02:
It can respond multiple times to the same request.

[00:26:29] Speaker 02:
So there may be one request and it may answer once and then it may answer again and again.

[00:26:34] Speaker 02:
The server under master objects construction does not have to wait for the client.

[00:26:41] Speaker 02:
And so where that comes in and where initiate comes in is because the specification defines asynchronous as both sides can communicate

[00:26:54] Speaker 02:
or excuse me, in that both the client and the server can initiate communications at any moment in time.

[00:27:01] Speaker 02:
That's what the specification says.

[00:27:05] Speaker 02:
And the implications of the construction master objects proposed and that the court ultimately adopted are that the server is free to send messages, initiate communications in other words, without waiting on the client.

[00:27:28] Speaker 02:
And because there's no dispute that MetaSystem cannot do that, that drove summary judgment.

[00:27:39] Speaker 00:
Counsel, you appear to be coming to a close just as your time.

[00:27:44] Speaker 02:
Very well.

[00:27:45] Speaker 02:
Unless the court has questions, we will submit the case.

[00:27:48] Speaker 02:
Thank you.

[00:27:49] Speaker 00:
Thank you.

[00:27:51] Speaker 00:
Mr. Atkinson has some rebuttal time.

[00:27:53] Speaker 00:
Thank you, Your Honor.

[00:27:57] Speaker 03:
First, Your Honors, on the question of what Judge Olson decided on asynchronous, in his order on page 11, he makes it clear that he added back in Meta's construction into Master Obvious Construction.

[00:28:11] Speaker 03:
He says, all the claims of suit require asynchronous communication between the server and client, and further, as in Meta further contends that asynchronous means that the server must be able to initiate communications.

[00:28:23] Speaker 03:
This order agrees.

[00:28:25] Speaker 03:
And it is clear that this was the only issue before Judge Albright.

[00:28:28] Speaker 03:
It is clear from the parties' briefs that this was the only issue.

[00:28:31] Speaker 03:
it was a server initiation issue.

[00:28:33] Speaker 03:
You can see it in the very first line of Master Objects Claim Construction Briefing in Texas, which is at 1136.

[00:28:40] Speaker 03:
You can see it again when Master Objects says in its Claim Construction Briefing at 2158, this is single issue.

[00:28:47] Speaker 03:
And you see it again in META's briefing on page 364, when META says that Master Objects Construction does not include the server initiation requirement.

[00:28:56] Speaker 01:
So what I stated seems

[00:28:58] Speaker 01:
Roughly accurate, is that there?

[00:29:00] Speaker 03:
Roughly accurate.

[00:29:01] Speaker 03:
Even more so, I would say that while Judge Alsop was saying he was leaving mass obvious construction in place, he wasn't actually reading in extra.

[00:29:09] Speaker 03:
He basically construed mass obvious construction as metas construction.

[00:29:16] Speaker 03:
On the issue of the query message term, I did want to point out some additional very good intrinsic record evidence.

[00:29:22] Speaker 03:
And that's going to be on the 073 patent on page 859 of the appendix.

[00:29:27] Speaker 03:
column 31, lines 5 to 48.

[00:29:32] Speaker 03:
There it discusses an embodiment that

[00:29:36] Speaker 03:
A user session, but not session-based.

[00:29:38] Speaker 03:
Session-based meaning a server tracking embodiment.

[00:29:41] Speaker 03:
And here it's saying you could have this without a server tracking embodiment.

[00:29:44] Speaker 03:
And there, the client would send all the information.

[00:29:47] Speaker 03:
And you can see that on lines 20, beginning, instead, the client system packages each request into a full communication packet that contains all the necessary information for the server object to do its work.

[00:29:59] Speaker 03:
The server object.

[00:30:00] Speaker 01:
What page were you on when you were just talking?

[00:30:02] Speaker 03:
Yes, I'm on appendix page 8597, column 31.

[00:30:08] Speaker 03:
and I'm on line 20.

[00:30:12] Speaker 03:
Instead, the client system packages each request into a full communication packet that contains all of the necessary information for the server object to its work.

[00:30:21] Speaker 03:
The server object does not remember information.

[00:30:23] Speaker 03:
This is critically important, as the prosecution history also bears out, because the Google court, sort of relating this issue to a stop-all, found that the prior old claim language in the 529 pattern required a server that tracks.

[00:30:36] Speaker 03:
That was the court's basis and also what META itself has conceded, as well as Judge Alsop, for their reading of query message.

[00:30:43] Speaker 03:
They say that in that embodiment, you have to be able to glue just the changes together.

[00:30:49] Speaker 03:
But Heron's specification is making clear that their embodiments aren't like that.

[00:30:52] Speaker 03:
In addition to the O2-4 specification itself,

[00:30:54] Speaker 03:
it says that server tracking is but one environment.

[00:30:57] Speaker 03:
So essentially both Meda and Judge Alsop are reading in with no hook for it this session language that was deliberately deleted from the new patents in the case.

[00:31:08] Speaker 03:
Briefly on Clara Stockle.

[00:31:10] Speaker 03:
Your honors are correct.

[00:31:11] Speaker 03:
That's just a non-starter.

[00:31:13] Speaker 03:
The claim language is clearly new.

[00:31:15] Speaker 03:
The old language is not there.

[00:31:16] Speaker 03:
It makes a material difference in terms of what parts of the prosecution history, as well as the intrinsic record you look at.

[00:31:22] Speaker 03:
As to the issues, the out-of-bounds of the specification are not decided.

[00:31:27] Speaker 03:
The open e-scribe case, which is Trading Tech 2, makes that clear that what you're saying strongly suggests, for example, does not mean you're deciding the out-of-bounds specification.

[00:31:42] Speaker 00:
As you can see, your time has expired.

[00:31:45] Speaker 03:
Thank you, Your Honor.

[00:31:46] Speaker 00:
Thank you both for your arguments.

[00:31:48] Speaker 00:
The case is submitted.

[00:31:49] Speaker 00:
That concludes today's arguments.