[00:00:01] Speaker 04:
OK, that brings us to our second case this morning, number 22-1990, Cedar Mobile v. Sewell.

[00:00:10] Speaker 04:
Again, Mr. Schreiner.

[00:00:24] Speaker 02:
May I please record?

[00:00:26] Speaker 02:
I'm Steve Schreiner here on behalf of Pat Noonan and Helen Cedar Mobile R&D IP.

[00:00:32] Speaker 02:
I'm going to go directly into what we believe is the key issue, which is Claim 10 of the 846 patent.

[00:00:44] Speaker 02:
And it's also replicated in Claim 10 of the 637 patent.

[00:00:48] Speaker 02:
Claim 10 recites that the play script includes one or more other segments.

[00:00:56] Speaker 04:
Now, is this any different from the portions argument that we heard before?

[00:01:03] Speaker 02:
It is similar to the portions argument, yes.

[00:01:06] Speaker 02:
And so far, the dependent claim recites other segments in addition to the segments recited in the independent claim.

[00:01:15] Speaker 01:
Isn't the question whether a segment can be a whole movie or a whole video?

[00:01:21] Speaker 01:
That's the issue.

[00:01:22] Speaker 02:
Yeah, I think that's correct.

[00:01:24] Speaker 01:
So if the database or what have you that that video is coming from or there's video storage,

[00:01:31] Speaker 01:
contains multiple movies, then why couldn't, you know, the question, don't you have a dependent claim that refers to having other segments in addition to segments doesn't really seem to answer the question.

[00:01:43] Speaker 01:
The bigger question, right, is whether, what a segment or a portion is.

[00:01:48] Speaker 02:
Yes, Your Honor, I think that's entirely correct.

[00:01:51] Speaker 02:
And so first we look at the plain, ordinary meaning of the term segment or portion.

[00:01:55] Speaker 02:
The plain, ordinary meaning of segment or portion is something that is less than a whole, something that is incomplete.

[00:02:01] Speaker 01:
And the question is, what's the whole?

[00:02:04] Speaker 02:
The whole would be, if the request of media is a movie, then the movie is the whole.

[00:02:11] Speaker 00:
Suppose I request Lower the Rings Part 1, Lower the Rings Part 2, and Murder the Rings Part 3, and I want to watch them

[00:02:21] Speaker 00:
throughout the day and a half that it would take.

[00:02:25] Speaker 00:
Would those, in your view, not be separate segments?

[00:02:31] Speaker 02:
Yes, that's correct, Your Honor.

[00:02:32] Speaker 02:
If you wanted to have a movie night, as you described, each of those Lord of the Rings movies is a self-standing piece of media content.

[00:02:41] Speaker 02:
It's not a portion.

[00:02:42] Speaker 02:
It is not incomplete, pursuant to the planned and ordinary meaning of portion or segment.

[00:02:47] Speaker 02:
It's not a segment.

[00:02:48] Speaker 02:
That's correct.

[00:02:49] Speaker 02:
Even though it is a segment of the Lord of the Rings trilogy.

[00:02:52] Speaker 02:
It's one title and a sequence of three complete movies that you're going to watch that night, Your Honor, yes.

[00:02:58] Speaker 01:
What about the examples in the specification that talk about having like a trailer

[00:03:04] Speaker 01:
than the movie.

[00:03:06] Speaker 01:
Or there's an example about having, I think, having multiple pay-per-view sporting events.

[00:03:14] Speaker 02:
Are you referring to examples in the specification?

[00:03:16] Speaker 01:
I am.

[00:03:17] Speaker 01:
I am.

[00:03:18] Speaker 01:
Well, those seem to be the whole that we're talking about.

[00:03:21] Speaker 02:
Right.

[00:03:21] Speaker 02:
I mean, certainly the reference to, let's say, an advertisement, that's an entire media item.

[00:03:27] Speaker 02:
The reference to a movie is an entire media item.

[00:03:29] Speaker 01:
How do I know that?

[00:03:32] Speaker 02:
Because the specification describes, for example, it describes a portion, for example, there is a reference in the specification that media may include part of the media clip.

[00:03:42] Speaker 02:
This is in the 846 patent, column four, lines 58 through 59.

[00:03:47] Speaker 02:
So the specification discloses the concept of portions or segments being something that is less than the whole, something that is incomplete.

[00:04:02] Speaker 01:
And it seems to me that it does so consistently and that there's no other possible meaning from the specification itself.

[00:04:12] Speaker 02:
for the term portion or segment?

[00:04:15] Speaker 02:
Yes, I don't believe there's an alternative explanation or construction of it.

[00:04:20] Speaker 02:
Out of that, of course, with regard to an advertisement, nobody requests an advertisement, so an advertisement is never going to be part of a request for media, just as an aside.

[00:04:31] Speaker 04:
Is what you're suggesting that the specification every time it uses the word segment refers to a subset of a whole?

[00:04:39] Speaker 04:
That's correct, Your Honor.

[00:04:40] Speaker 04:
Yes.

[00:04:41] Speaker 04:
But other than that, what's the support for your construction of the segment that can't be a whole item?

[00:04:48] Speaker 02:
It's the plan in order and meaning of segment.

[00:04:50] Speaker 02:
If you look at the dictionary definition for a portion or a segment, and by the way, CEDAW acknowledged, stipulated that those two terms are essentially synonymous for purposes of these appeals.

[00:05:02] Speaker 02:
Portion and segment.

[00:05:03] Speaker 02:
Yeah.

[00:05:05] Speaker 02:
So the definition of a portion is something less than the whole.

[00:05:08] Speaker 01:
But again, that begs the question, what's the whole?

[00:05:11] Speaker 01:
So in your claim, I'm looking at claim one, for example, it talks about video content and one or more segments of the stored video content, which could be the entire trilogy, as opposed to, or even more, it could be 60 movies, as opposed to just one movie.

[00:05:31] Speaker 01:
It's not specific.

[00:05:36] Speaker 02:
I agree with Your Honor that the language in, for example, Claim 1 of the 846 regarding the request for video content is somewhat broad.

[00:05:50] Speaker 02:
But again, the claim does go on to provide that what is identified and delivered are segments of video content.

[00:05:58] Speaker 02:
And again, it's CEDAW's position that – What if the whole movie was delivered?

[00:06:03] Speaker 01:
That would be a segment.

[00:06:04] Speaker 01:
If my interpretation of video content is correct, and say it's ten movies, then if one movie is delivered, that would be one segment.

[00:06:16] Speaker 02:
CEDAW's prediction would be that that wouldn't be covered by the claim.

[00:06:19] Speaker 02:
The claim requires a identification and delivery of segments of the requested video content.

[00:06:28] Speaker 02:
So things that are less than a whole.

[00:06:30] Speaker 02:
So if it's a request for a movie, then that fits within the scope of the claim.

[00:06:34] Speaker 02:
If the request were, in your hypothetical, a request for five movies, that would be... No, no.

[00:06:40] Speaker 01:
My hypothetical is that the video content contains 10 movies, and I'll request one of them.

[00:06:48] Speaker 01:
Why would that not read on the claim?

[00:06:51] Speaker 02:
It wouldn't read on the claim because a movie, one movie, is a standalone media item.

[00:06:59] Speaker 02:
It could be a segment of the whole STIRB content, right?

[00:07:04] Speaker 02:
Respectfully, not within the meaning of the claim as read in light of the specification.

[00:07:08] Speaker 02:
That is CEDAW's position.

[00:07:17] Speaker 02:
If there are no further questions on the issue of one or more other segments regarding Claim 49, I'll turn to the issue regarding Independent Claim 1, and it also pertains to Independent Claim 34, where there is a separately recited resources server for delivering the requested video content.

[00:07:40] Speaker 02:
and which is separate and staying from an advertising server which delivers advertising content.

[00:07:48] Speaker 02:
And CEDAW respectfully submits that the board erroneously construed those limitations because the board found that the resided resources server for delivering the requested video content could be the same as the advertising server for delivering the advertising content.

[00:08:08] Speaker 02:
The board stated

[00:08:11] Speaker 02:
Let me find the passage.

[00:08:19] Speaker 02:
The board disagreed with the patent owner's position that the resources server is different and separate from the advertising server.

[00:08:28] Speaker 02:
Here's the quote from the board.

[00:08:29] Speaker 02:
The board stated, we disagree with the patent owner's position that the resources server is different and separate from the advertising server.

[00:08:35] Speaker 02:
Here's the quote from the board.

[00:08:36] Speaker 02:
The board stated, we disagree with the patent owner's position that the resources server is different and separate from the advertising server.

[00:08:40] Speaker 02:
And it's page 31.

[00:08:44] Speaker 02:
And the board states there, quote, we disagree with Patnam's implicit contention that the resource and the advertising server must be separate servers.

[00:08:54] Speaker 00:
In the next paragraph, they go ahead and say, well, even if resource and advertising service must be separate servers, we find that the

[00:09:07] Speaker 00:
combination of references accounts for this limitation.

[00:09:10] Speaker 00:
But why is the board's, if it's an error, why is the board's error meaningful?

[00:09:16] Speaker 00:
Why does that lead us to conclude that we have to reverse, given that the alternative ground that the board recited?

[00:09:23] Speaker 02:
Yes, Your Honor.

[00:09:26] Speaker 02:
The reason the board is still incorrect is that in applying that alternative construction,

[00:09:32] Speaker 02:
the board cited to a quote unquote placeholder server in the AAAF reference, that's the All About ASX files reference, it's called AAAF reference.

[00:09:43] Speaker 02:
And there's a reference there to a server named NS Server.

[00:09:47] Speaker 02:
And so the issue was that the, whose initial read was that this NS Server in the AAAF reference discloses delivery of video content

[00:09:59] Speaker 02:
And that same NS server discloses the delivery of advertising content.

[00:10:04] Speaker 02:
And CEDAW came back and said, that's incorrect under a proper claim construction.

[00:10:08] Speaker 02:
You can't have the same server, this NS server.

[00:10:11] Speaker 02:
So the board's backup position was an argument that CEDAW submitted, that Pru submitted on reply, where it said, oh, the NS server, that's just merely a placeholder.

[00:10:21] Speaker 02:
And it could be multiple servers.

[00:10:23] Speaker 02:
But CEDA respectfully submits that that's incorrect.

[00:10:27] Speaker 04:
But your own expert, 6256, said specifically that they don't have to be the same.

[00:10:38] Speaker 04:
I don't believe they must be meaning the same, but they can be.

[00:10:45] Speaker 02:
Again, I think Sido's expert there was speaking generically to the technology and not linking it to the specific claim.

[00:10:53] Speaker 04:
That's a hard reading of that because the question specifically relates to claim one.

[00:10:59] Speaker 04:
For your analysis of claim one, did you understand the resource and the advertising server must be two separate servers?

[00:11:06] Speaker 04:
I don't believe they must be, but they can be.

[00:11:08] Speaker 04:
That's not a generic statement.

[00:11:10] Speaker 04:
That's about claim one.

[00:11:13] Speaker 02:
if you look at the reference, the AAF reference, the total, the board's reliance is on this NS server.

[00:11:21] Speaker 01:
That's a different issue, right?

[00:11:23] Speaker 01:
So the experts

[00:11:25] Speaker 01:
testimony goes to the separate question of claim construction and whether there are two separate elements.

[00:11:32] Speaker 01:
That's one issue.

[00:11:33] Speaker 01:
You had both of these over.

[00:11:36] Speaker 01:
So one is claim construction and the second one is whether substantial evidence supports the board's fact-finding on what the prior art teaches, right?

[00:11:43] Speaker 01:
So your answer about your expert should be talking about claim construction, not about what the prior art teaches.

[00:11:50] Speaker 02:
I appreciate the direction, Your Honor.

[00:11:53] Speaker 02:
The expert's testimony is, of course, extraneous evidence.

[00:11:58] Speaker 02:
And extraneous evidence cannot override the plain meaning of the claim if the claim is not ambiguous.

[00:12:06] Speaker 02:
If the intrinsic evidence consisting of the claim language and specification support shows that the advertising server and the resources server are separate,

[00:12:16] Speaker 02:
That can't be overridden by the expert's extraneous testimony.

[00:12:20] Speaker 02:
And by the way, who or the board alleged that this claim was ambiguous in this respect?

[00:12:27] Speaker 02:
So that's the answer on the claim construction issue.

[00:12:29] Speaker 02:
On the issue of the application of the proper construction to the claim, the AAA reference discloses this NS server.

[00:12:38] Speaker 02:
It doesn't say anywhere in that AAA reference that the NS server is a placeholder server.

[00:12:43] Speaker 02:
In fact, it's representing multiple servers.

[00:12:47] Speaker 02:
In fact, this AAA reference does refer to multiple different servers.

[00:12:52] Speaker 02:
This is in appendix.

[00:12:53] Speaker 01:
Do you think that your expert agreed that the NS server is a placeholder that could be the same server or it could be different servers?

[00:13:03] Speaker 01:
Didn't the board rely on that same testimony for that finding?

[00:13:10] Speaker 02:
As I said, Your Honor, to the extent that it's a claim construction issue, which it is, I think as you pointed out, it's extraneous evidence that... But I guess I'm just speaking.

[00:13:20] Speaker 01:
What about where the expert agreed that the NS server is a placeholder?

[00:13:28] Speaker 02:
That is contrary to what the AAA reference teaches.

[00:13:33] Speaker 02:
The AAA reference doesn't say anywhere that the NS server is a placeholder.

[00:13:37] Speaker 02:
So you want us to say that your own expert's testimony isn't substantial, is it?

[00:13:42] Speaker 02:
No, I want to look at the reference.

[00:13:45] Speaker 02:
And so the reference describes multiple servers, NS Server, Server 2, the NetShow.Microsoft.com server.

[00:13:53] Speaker 02:
So the reference already discloses multiple different servers.

[00:13:56] Speaker 02:
So the notion that one of these, this NS Server,

[00:13:59] Speaker 02:
is actually a placeholder for multiple servers is just not supportable in the reference.

[00:14:04] Speaker 02:
And I refer the court to pages 45 of the AAAF reference, appendix 1587 to 1588.

[00:14:12] Speaker 02:
And second, even if the NS server was a quote unquote placeholder, there's no teaching or suggestion in the AAAF reference the video content would be stored on a first server, for example NS server one, and the ad content would be stored on a separate server.

[00:14:28] Speaker 02:
let's call it ANS Server 2.

[00:14:30] Speaker 02:
So the placeholder argument, even if accepted, doesn't meet the claim limitation requiring a separate resource of server for delivering the media content and a separate advertising server for delivering the advertising content.

[00:14:48] Speaker 02:
And additionally, we would point out that who's

[00:14:51] Speaker 02:
whose placeholder theory was first presented on reply.

[00:14:55] Speaker 02:
It wasn't presented in its petition.

[00:14:57] Speaker 02:
And we would submit that the issue of the resources server and the advertising server being separate was evident in the claim.

[00:15:08] Speaker 02:
And it was an entirely foreseeable issue that should have been addressed in the petition.

[00:15:13] Speaker 02:
And the board shouldn't have considered this placeholder argument that was submitted on reply for the first time before the board.

[00:15:26] Speaker 04:
And we're, again, out of time, Mr. Scheiner.

[00:15:29] Speaker 04:
Okay, I can resubmit to rebuttal.

[00:15:32] Speaker 02:
So respectfully resubmit, or it should be reversed.

[00:15:36] Speaker 04:
Thank you.

[00:15:39] Speaker 04:
Okay, Mr. Williamson.

[00:15:49] Speaker 03:
Good morning, and may it please the court, Brett Williamson, on behalf of the APOLE HULU.

[00:15:54] Speaker 03:
I'll address first and very briefly, because I think the panel has correctly discerned the issue here.

[00:16:04] Speaker 03:
The question is not one or more segments in a vacuum.

[00:16:07] Speaker 03:
The question is one or more segments of the stored video content.

[00:16:12] Speaker 03:
And the specification is replete with references to the fact that the stored video content can be an entire movie with a movie trailer or a series of full media items.

[00:16:25] Speaker 03:
There's simply nothing to suggest that one or more segments, and the word segments in particular, must be pieces of an item.

[00:16:35] Speaker 03:
And that's the crux of the argument.

[00:16:38] Speaker 03:
all council has pointed to is that it may be.

[00:16:40] Speaker 03:
And it's possible that it could mean both a full media item and portions of a full media item.

[00:16:50] Speaker 03:
All it has to do is mean one or the other or both for purposes of application of the art on each of the applicable grounds.

[00:17:01] Speaker 03:
And as the panel pointed out, the expert that CEDAW designated acknowledged as much.

[00:17:09] Speaker 03:
Even if, and this is the last point I'll make on this, even if a segment cannot be a full media item, and that's what this argument requires.

[00:17:19] Speaker 03:
that the board found substantial evidence for the fact that the All About ASX files teaches one or more segments because it uses these REF ref tags to transmit segments of a media file.

[00:17:33] Speaker 03:
Again, CEDAW's expert agreed that that's what one of ordinary skill in the art would have understood All About ASX files to be teaching.

[00:17:42] Speaker 03:
And importantly, that finding has never been challenged.

[00:17:46] Speaker 03:
It was not challenged on appeal here.

[00:17:48] Speaker 03:
The alternative grounds for affirming the board here has not been challenged.

[00:17:56] Speaker 03:
So let me turn then to the idea that the resource and the advertising server in claim one need to be a separate or satisfied by separate elements.

[00:18:07] Speaker 03:
The specification, of course, is the best source of the proper interpretation of a claim.

[00:18:12] Speaker 03:
And here, the specification identifies a single structure, the MMS, the Managed Media Switch, as being both the content resource and the source of the advertisement.

[00:18:25] Speaker 03:
And that's Appendix 382 from the specification of the 846 patent.

[00:18:31] Speaker 03:
CEDAW adopted that in its own briefing here or in its briefing below before the board at appendix 3928 and 3929.

[00:18:46] Speaker 03:
And further, again, CEDAW's expert agreed that it could be, as the court pointed out, that these resource and advertising server elements can be satisfied by the same element as it indisputably is by the grounds of invalidity here in the obviousness combination.

[00:19:11] Speaker 03:
The only other point I want to make is this alternative argument.

[00:19:15] Speaker 03:
Again, the idea that Hulu did not raise that the AAAF reference could be referring to NN server for placeholder.

[00:19:26] Speaker 03:
That, of course, was in response to a

[00:19:29] Speaker 03:
contradictory claim interpretation to what the specification says.

[00:19:33] Speaker 03:
So to the extent that Hulu addressed the idea of the art covering what the specification discloses as the meaning of these two different items in the claim, it's simply a responsive alternative argument.

[00:19:47] Speaker 03:
But as the board found

[00:19:48] Speaker 03:
Both the reference, the ASX file reference, and CEDAW's expert, again, and I have an additional site, Appendix 6214 and 6215, discloses an agreement that even if the claim requires two different elements for the resource and the advertising server, that is met by the combination underground one and ground two.

[00:20:16] Speaker 03:
Unless there's any other questions.

[00:20:19] Speaker 00:
Was there a sir of fly in this case?

[00:20:23] Speaker 00:
I don't know.

[00:20:24] Speaker 03:
No, I don't believe so.

[00:20:24] Speaker 04:
No, okay All right, thank you mister.

[00:20:28] Speaker 02:
Thank you Mr. Schreiner two minutes Yes, Ryan Just a couple brief Follow-ups again.

[00:20:41] Speaker 02:
I want to reiterate that claim town recites one or more other segments and

[00:20:45] Speaker 02:
and that's an erroneous claim construction that the board arrives at applied and the claim clearly requires the delivery of multiple segments and that's a claim construction error that should be reversed on this appeal.

[00:21:00] Speaker 02:
Secondly, the ASP comment by

[00:21:04] Speaker 02:
opposing counsel about ASX files teaching segments.

[00:21:09] Speaker 02:
If you look at the AAF reference where it was cited, it refers to several things.

[00:21:15] Speaker 02:
It refers to an ASX file having a Title I, Title II, Title III describing essentially three different movies.

[00:21:24] Speaker 02:
So those are not segments.

[00:21:25] Speaker 02:
Those are self-standing media items.

[00:21:28] Speaker 02:
And as for the comment about

[00:21:31] Speaker 02:
uh... seo uh... allegedly agreeing with the construction of the resources server vis-a-vis the advertising server uh... as you know in its papers below and here on appeal has consistently taken the position that the resources server and the advertising server are separate and distinct as recited in the claim and as supported in the specification that i cited in my opening comments uh... with that if there are any other questions i'm happy to uh...

[00:22:00] Speaker 02:
address those.

[00:22:02] Speaker 02:
Otherwise, I am finished with my remarks.