[00:00:00] Speaker 05:
Our final case this morning is number 23-1787, Vivint Inc.

[00:00:04] Speaker 05:
versus ADT LLC.

[00:00:08] Speaker 05:
Okay, Mr. Sears?

[00:00:11] Speaker 02:
Yes.

[00:00:12] Speaker 02:
Good morning, Your Honor.

[00:00:12] Speaker 02:
May I please the Court?

[00:00:15] Speaker 02:
The Board found Vivint's 739 patent invalid over the O reference.

[00:00:20] Speaker 02:
That finding depends on the Board's construction of the location determining limitations of the patent claim.

[00:00:27] Speaker 02:
And specifically,

[00:00:29] Speaker 02:
on the board's determination that those limitations do not require using a location service to determine location.

[00:00:37] Speaker 02:
Because the board carried out a construction, this court should vacate and remand so that the board can reevaluate validity under a correct claim of construction.

[00:00:47] Speaker 01:
What is your best intrinsic support for saying the use of a location service would not be optional?

[00:00:55] Speaker 02:
So we can start with,

[00:00:59] Speaker 02:
column 1, column 9, excuse me, lines 26 through 27.

[00:01:04] Speaker 02:
And in order to put this in context, sorry, what's the appendix page?

[00:01:10] Speaker 02:
It's appendix page 152.

[00:01:15] Speaker 02:
One passage, and I apologize for bumping us around, actually let's start on appendix page 150.

[00:01:22] Speaker 02:
And we see that in column two, line 53 through 56, and this is important for evaluating the rest of the evidence that Judge Conahan was asking about.

[00:01:32] Speaker 02:
So column two, line 53 through 56, the patent teaches us that embodiments may be implemented as a computer process, a computing system,

[00:01:42] Speaker 02:
or as an article of manufacture, such as computer readable media.

[00:01:47] Speaker 02:
So now let's go back to appendix page 154, volume 9, lines 26 through 27.

[00:01:53] Speaker 02:
And here, speaking to the process embodiment, what the specification says, it says that at operation 904, and operation 904 is determine the current location of a resident,

[00:02:10] Speaker 02:
At operation 904, the doorbell application determines a current location of the resident using a location service.

[00:02:18] Speaker 02:
In connection with the process embodiment, that's categorical.

[00:02:22] Speaker 02:
There's no optionality language there.

[00:02:26] Speaker 01:
But is this just describing Figure 9 further?

[00:02:29] Speaker 01:
Is that what's being described right here in comment?

[00:02:32] Speaker 02:
Yes.

[00:02:33] Speaker 02:
And then we do have

[00:02:36] Speaker 02:
The force, of course, latched on to the fact that the term optional appears, but I submit that if we pay attention to how the word optional is used, it actually reinforces Vivint's position rather than ADT's position.

[00:02:51] Speaker 02:
So, for example, if we look at column 7, so on page appendix page 153, if we look at column 7, lines 20 through 22,

[00:03:05] Speaker 02:
What the specification tells us is that the doorbell presence application 532 may optionally determine a location of the resident using location service.

[00:03:17] Speaker 02:
Notice the placement of the word optionally.

[00:03:20] Speaker 02:
This does not say that the doorbell presence application may determine a location of the resident optionally using location service.

[00:03:31] Speaker 02:
It says that the doorbell presence application may

[00:03:34] Speaker 02:
optionally determine a location.

[00:03:36] Speaker 02:
But once the election is made to do that step to determine a location, the use of the location service is categorical.

[00:03:46] Speaker 01:
So is your argument fundamentally that despite the fact that the specification uses optionally in conjunction with location service repeatedly, it's because in this instance you showed us in column seven, optionally is somewhat distant

[00:04:01] Speaker 01:
from the words location service, and that's why you think it's not optional?

[00:04:06] Speaker 02:
It does tell us how we read the language.

[00:04:08] Speaker 01:
I mean, do you agree with what I stated, or do you disagree?

[00:04:11] Speaker 02:
I agree with it.

[00:04:12] Speaker 02:
I would spin it a little differently, but I agree with the language, Your Honor.

[00:04:17] Speaker 05:
I mean, that particular instance may be ambiguous, but you have, for example, in the column 5, repeated references to optional location service.

[00:04:29] Speaker 02:
Yes.

[00:04:30] Speaker 05:
optional location service.

[00:04:31] Speaker 05:
I mean, how does that not suggest that the location service is not optional?

[00:04:37] Speaker 02:
And this is why I started off with the passage that talks about the different embodiments that we have.

[00:04:41] Speaker 02:
We have a process embodiment.

[00:04:43] Speaker 02:
We have a system embodiment.

[00:04:44] Speaker 02:
We have a computer readable media embodiment.

[00:04:47] Speaker 02:
The statements that you're referring to, Your Honor, are in connection with the architecture embodiment.

[00:04:53] Speaker 02:
And the reason that matters is the other passage that I

[00:04:57] Speaker 02:
that I pointed us to where we were focusing on the placement of the word optionally.

[00:05:03] Speaker 02:
If I'm reading that passage correctly and it's saying you can optionally determine whether or not to determine location,

[00:05:11] Speaker 02:
It then makes sense that in the architecture of the system embodiment, again, you would expect the location service to be optional in the architectural description of the system embodiment if the step of determining location is itself optional.

[00:05:29] Speaker 02:
If you're building a system that's not going to determine location, you're not going to have a location service.

[00:05:38] Speaker 02:
Okay.

[00:05:41] Speaker 02:
And it is actually striking precisely because we do have these several references to the location services optional.

[00:05:52] Speaker 02:
One thing that we don't see in this patent, of course, is we do not see a deep-ending claim that resides use of a location service.

[00:06:01] Speaker 02:
If the specification is going to go to the trouble of calling out a half-dozen times,

[00:06:06] Speaker 02:
Oh, you might want to do this with the location service.

[00:06:09] Speaker 02:
Why then would you not see a dependent claim that says, oh, let's add in the location service here?

[00:06:16] Speaker 02:
We submit that the most reasonable reading of the document as a whole is that there are no dependent claims that recite

[00:06:26] Speaker 02:
the use of a location service because that's already implicit in determining location.

[00:06:32] Speaker 02:
The passage that we looked at in connection with the process embodiment says if you're going to determine location, you're going to use a location service.

[00:06:40] Speaker 02:
The passage that we looked at in connection with Figure 5 says the same thing.

[00:06:46] Speaker 02:
Optionally, you can determine a location.

[00:06:49] Speaker 02:
But if you're going to do that, you're going to do it with a location service.

[00:06:52] Speaker 02:
And so just adding to any intrinsic evidence, and this is an argument from absence, the fact that there are no dependent claims calling out the location service reinforces that

[00:07:09] Speaker 02:
that limitation is, sorry, that that method is already implicit in the term, the terminal location.

[00:07:17] Speaker 02:
There's no dependent claim to recite using a location service because once you have the terminal location, it's already, the location service is already built in by virtue of that.

[00:07:35] Speaker 02:
There are, I think we've talked about most of the passages that deal with the location service being optional and judge by clearly.

[00:07:45] Speaker 01:
Yes.

[00:07:46] Speaker 01:
What about column seven lines 52 through, it looks like maybe it's 53, I guess.

[00:07:56] Speaker 01:
So rather than using the word optional, there's the use of the word may.

[00:08:02] Speaker 01:
It seems like

[00:08:04] Speaker 01:
to using the word optional in terms of use of a location service.

[00:08:08] Speaker 02:
Sorry, let me get my glasses around.

[00:08:10] Speaker 01:
Okay.

[00:08:11] Speaker 01:
My question to you is how do you respond and deal with that language?

[00:08:19] Speaker 02:
Again, notice the placement of the word may.

[00:08:23] Speaker 02:
The word may precedes determining a location of the resident.

[00:08:26] Speaker 02:
It does not precede using a location service.

[00:08:31] Speaker 02:
And so again, it goes to the point that it- It does proceed using a location service.

[00:08:35] Speaker 01:
You just want it to directly proceed using a location service.

[00:08:38] Speaker 02:
Correct.

[00:08:38] Speaker 02:
And I submit that this is a rule of English for medical construction.

[00:08:44] Speaker 02:
We often associate words with the most proximate.

[00:08:52] Speaker 01:
And so it's that- So your interpret may determine a location of the resident using a location service as requiring

[00:09:00] Speaker 01:
Determination of location of the resident using a location service.

[00:09:05] Speaker 02:
So I would bracket the entirety of line 53.

[00:09:08] Speaker 02:
And I would read that as may determine the location of the resident using a location service.

[00:09:15] Speaker 02:
That's what may or may not be done.

[00:09:17] Speaker 01:
I mean, that's what the words say.

[00:09:19] Speaker 02:
Yes.

[00:09:20] Speaker 02:
And so the point is that's what the optionality attaches to is that compound.

[00:09:27] Speaker 02:
The optionality does not attach to using a location service.

[00:09:32] Speaker 02:
The optionality attaches to that compound, which is determining a user's location using a location service.

[00:09:39] Speaker 02:
That's what May attaches to.

[00:09:46] Speaker 02:
for their other passages of interest in that score.

[00:09:51] Speaker 02:
Oh, let's just go ahead.

[00:09:54] Speaker 02:
OK.

[00:09:55] Speaker 02:
So that's one pillar of the board's decision was the use of the word optional.

[00:10:04] Speaker 02:
And as Judge Cunningham pointed out, there's also that path that uses the word may.

[00:10:09] Speaker 02:
The other pillar of the board's decision is what it refers to as ordinary meaning.

[00:10:20] Speaker 02:
analysis that what Vivint is trying to do is modify that ordinary meaning.

[00:10:26] Speaker 02:
Now, I submit that instead of relying on ordinary meaning as determined under a Phillips standard with a board

[00:10:34] Speaker 02:
really started with is a broad construction, and its approach was we're going to start broad unless you can prove that we need to narrow it.

[00:10:41] Speaker 02:
And that, of course, would be more of a Texas Digital or broadest reasonable interpretation analysis, essentially a throwback to those older superseded standards.

[00:10:53] Speaker 02:
Texas Digital, BRI, those are the standards that favor starting with a broad interpretation over narrower interpretation.

[00:11:01] Speaker 02:
But unlike Texas Digital and unlike BRI, the now governing Phillips standard does not privilege a broader interpretation over a narrower interpretation as we submit the board is done here.

[00:11:14] Speaker 02:
Under Phillips, we do not start with a broad interpretation and then see if we can somehow narrow it.

[00:11:21] Speaker 02:
Instead, we start with the specification.

[00:11:23] Speaker 02:
because ordinary meaning does not exist.

[00:11:25] Speaker 03:
When we start with the specification, I think we start with the claim language, don't we?

[00:11:29] Speaker 03:
Read in light of the specification.

[00:11:31] Speaker 02:
Exactly, you're right.

[00:11:33] Speaker 02:
But what we don't do is start with the claim language in a vacuum.

[00:11:37] Speaker 02:
We always encourage the claim language, and we say, oh, there's this claim language.

[00:11:43] Speaker 02:
What's the specification tells us about this claim language?

[00:11:45] Speaker 05:
But there's nothing in the specification here that supports the notion that the location service is mandatory.

[00:11:52] Speaker 05:
Sorry?

[00:11:53] Speaker 05:
There's nothing in the specification that suggests or states that the use of a location service is mandatory.

[00:12:04] Speaker 02:
In terms of that forceful, no, there's not.

[00:12:08] Speaker 02:
I do submit that the observations made about the document as a whole do support reading the document so as to assume that.

[00:12:21] Speaker 04:
I mean, if you want to make the phrase determining a current location of the watcher equivalent to location services, you have to either put it in the claim, determining a current location of the watcher

[00:12:33] Speaker 04:
using location services, or you have to do some lexicography and specification to say that this patent determines the only way it determines the current location is location service.

[00:12:46] Speaker 04:
It doesn't say that.

[00:12:47] Speaker 04:
You're asking us to infer that it means that.

[00:12:50] Speaker 02:
Yes, we are asking the court to interpret the term that way.

[00:12:55] Speaker 02:
I wouldn't know.

[00:12:55] Speaker 02:
The board already did something.

[00:12:57] Speaker 02:
You can determine current locations without location services, right?

[00:13:01] Speaker 02:
In the abstract, yes, but if we take a look at what the board has done here, I submit that the board's approach is not only a throwback, it's also a bit selective.

[00:13:12] Speaker 02:
On page 16 of the board's decision, the board said that the plan and ordinary meaning of determining a location, determining a current location of the user includes determining a physical location of a computing device.

[00:13:27] Speaker 02:
associated with the user.

[00:13:29] Speaker 02:
The specification never says we're going to look at a computing device associated with the user.

[00:13:35] Speaker 05:
That was kind of undisputed, wasn't it?

[00:13:37] Speaker 02:
Sorry?

[00:13:38] Speaker 02:
That was undisputed.

[00:13:40] Speaker 02:
It was undisputed, but the board... But where does it come from?

[00:13:47] Speaker 04:
And again, this is... So the specification... Isn't that one way of determining the current location of the watcher by determining where the device they're watching on is physically located?

[00:13:57] Speaker 04:
That's pretty much plain and ordinary meaning.

[00:14:02] Speaker 02:
That is it.

[00:14:03] Speaker 02:
So there's my location, there's the location of my phone.

[00:14:06] Speaker 02:
Are they often in the same place?

[00:14:08] Speaker 02:
Sadly, yes they are.

[00:14:10] Speaker 02:
But they mean different things.

[00:14:12] Speaker 02:
And so if there's enough room under Phillips for ordinary meaning to include, well, we're going to find

[00:14:22] Speaker 02:
Mr. Sears' location by looking for Mr. Sears' phone, even though the specification never says that, then we submit that there's also room in the specification for concluding that determining a user's location requires the use of a location service.

[00:14:40] Speaker 02:
Final point in that regard, it may be that we are on

[00:14:45] Speaker 02:
the knife edge of the line between importing a limitation and construing language in light of the specification.

[00:14:51] Speaker 02:
But if we are on the knife edge, Vivint wins because it's ADT's burden to prove invalidity.

[00:14:59] Speaker 02:
It's not our burden to prove invalidity.

[00:15:01] Speaker 02:
Thank you, Your Honor.

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

[00:15:04] Speaker 05:
We'll give you two minutes for rebuttal.

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

[00:15:05] Speaker 05:
Goswami?

[00:15:07] Speaker 00:
Thank you, Your Honors, and may it please the Court.

[00:15:09] Speaker 00:
So we're not on the knife side here.

[00:15:12] Speaker 00:
We are so far within Vivint is trying to import limitations that are optional in the specification into the claims.

[00:15:20] Speaker 00:
There's absolutely no reason to do that here.

[00:15:23] Speaker 00:
Every single example that we look at in the claims, there are some where optional may be before determining a current location and maybe before

[00:15:31] Speaker 00:
using a location service, but it's optional.

[00:15:35] Speaker 00:
And if you look at the other parts of the specification, for example, the first paragraph of the specification or the last paragraph right before the claim star, it says all of these embodiments are just exemplary.

[00:15:47] Speaker 00:
They're just optional.

[00:15:49] Speaker 00:
And that's clear law under this court's case law where you can't take what's optional and import it into the claim.

[00:15:57] Speaker 00:
Reading.

[00:15:58] Speaker 01:
How do you respond to opposing counsels pointing us to column nine and the descriptions relating to figure nine?

[00:16:06] Speaker 01:
This seemed to be what they thought was their best intrinsic evidence to support their interpretation.

[00:16:12] Speaker 00:
So with respect to column nine, if you take a look at, this is on appendix 154, I believe it's a line, I think it's 16 or 17.

[00:16:21] Speaker 00:
It says, figure nine illustrates a logic flow diagram for a process of providing doorbell presence service according to one embodiment.

[00:16:31] Speaker 00:
So this is just one embodiment.

[00:16:33] Speaker 00:
So even if you read Figure 9 and the portion that Bivens Council read to say that it's mandatory for that one embodiment, it's like little law of this court.

[00:16:44] Speaker 00:
And you can look at many cases, but one example would be the Thornor case, where it's not enough that the only embodiment

[00:16:54] Speaker 00:
or all of the embodiments contain a particular limitation.

[00:16:57] Speaker 00:
There has to be clear and unmistakable disclaimer.

[00:17:00] Speaker 00:
And as I believe Judge Hughes pointed out, there's neither clear lexicography here.

[00:17:05] Speaker 00:
There's definitely not clear disclaimer.

[00:17:08] Speaker 00:
In fact, you have the opposite of clear disclaimer, where every single time it comes up, it says it's optional.

[00:17:14] Speaker 01:
What about your response to opposing counsel's interpretation of a couple things that I walked through with him?

[00:17:21] Speaker 01:
I think it was in column seven, both the sections beginning around line 20 and the section beginning around line 52.

[00:17:28] Speaker 01:
This was optionally a little bit more distant from location service and then also the use of the term may.

[00:17:36] Speaker 00:
So if you take a look at the examples on column seven, and I think it refers to a few different figures.

[00:17:43] Speaker 00:
So I'll start with the ones talking about figure five.

[00:17:47] Speaker 00:
So figure five, if you just take a look at figure five itself, which is on appendix 145, you can see it has location service in the figure.

[00:17:58] Speaker 00:
It has a dotted line from doorbell presence application to location service.

[00:18:03] Speaker 00:
that again shows that it is optional.

[00:18:05] Speaker 00:
It's a dotted line.

[00:18:06] Speaker 00:
So even if it says may optionally determine a location of the resident using location service, you can see just from the figure itself that the use of the location service is what's optional here.

[00:18:20] Speaker 00:
And figure 6 is, again, referring to the example doorbell presence service of figure 2.

[00:18:28] Speaker 00:
And figure 6 doesn't have that schematic.

[00:18:33] Speaker 00:
But if you turn to figure 2, which is on appendix 142, you see the same thing.

[00:18:39] Speaker 00:
durable application, it has a dotted line to location service.

[00:18:44] Speaker 00:
And you see this in every single example in your claims.

[00:18:47] Speaker 00:
In fact, the only example where you don't see it, which is the one where Vivint seems to really rely on, figure nine,

[00:18:55] Speaker 00:
The figure itself actually doesn't report to the location service at all.

[00:18:58] Speaker 00:
But anyway, that figure nine is only referring to one embodiment.

[00:19:02] Speaker 00:
And it's clear that even if it were in all of the embodiments, you still don't rise to the level of clear lexicography or disclaimer here.

[00:19:13] Speaker 00:
I just want to address one other point that Vivid made in their argument.

[00:19:19] Speaker 00:
It really, I think, is an example of making lemonade out of lemons.

[00:19:24] Speaker 00:
You look at the claims and it doesn't ever mention location service.

[00:19:29] Speaker 00:
They were able to include location service explicitly in the claims if they wanted.

[00:19:34] Speaker 00:
They could have said, determining a location

[00:19:37] Speaker 00:
using a location service.

[00:19:39] Speaker 00:
They never did that.

[00:19:40] Speaker 00:
And because they didn't do that, you go to the plain, ordinary meaning of determining a current location.

[00:19:47] Speaker 00:
And you can't take the absence of including a limitation as a reason why it now has to be read in to all of the claims, especially where the specification says that it's optional.

[00:20:00] Speaker 05:
He, your opposing counsel in column five, suggested that these three references to optional location service somehow aren't significant.

[00:20:11] Speaker 05:
I didn't quite understand what he was saying about that.

[00:20:14] Speaker 05:
Can you help me?

[00:20:18] Speaker 00:
I confess, Your Honor, I also don't

[00:20:20] Speaker 00:
understand why they wouldn't be significant.

[00:20:23] Speaker 00:
There are other examples of embodiments in the claims.

[00:20:28] Speaker 00:
And in each of those instances, it talks about optional location service.

[00:20:33] Speaker 00:
And just another example where it doesn't actually mention location service at all.

[00:20:38] Speaker 00:
If you take a look at figure four, it talks about the doorbell application determines the location of the user, and in that instance, it doesn't even mention location service.

[00:20:51] Speaker 00:
While there may be some variation, as Judge Cunningham has pointed out, about the placement of the word optional, the placement of the word may, the prevailing

[00:21:01] Speaker 00:
impression that a person of ordinary skill in the art would have from reading the specification and reading the claims together with that, which is what you're supposed to do, is that using a location service is optional.

[00:21:13] Speaker 00:
It's one of the ways in which you can determine a current location.

[00:21:21] Speaker 00:
Okay.

[00:21:21] Speaker 00:
If there are no other questions, I'll... All right, thank you.

[00:21:32] Speaker 02:
Thank you.

[00:21:34] Speaker 02:
So first let me be sure we're clear on what we are and are not arguing.

[00:21:43] Speaker 02:
To answer this question, we are not arguing on disclaimer or lexicography.

[00:21:48] Speaker 02:
Our position stands or falls on how you interpret the phrase on determining the location of the user.

[00:21:55] Speaker 02:
So yes, we have not pointed to evidence that would meet the standard of a disclaimer or explicit lexicography, because that's not what we're arguing.

[00:22:08] Speaker 02:
What we are arguing is, for example, there's the DuPont v. Phillips case, 849, if second, 1430, 1433, that we cited in our brief.

[00:22:21] Speaker 02:
that recognizes there is a difference between importing limitation and considering claim language.

[00:22:25] Speaker 02:
And the way you tell which side of the line you're on is whether what you're doing is wholly apart from any need to interpret the claim language.

[00:22:33] Speaker 02:
And what we're presenting is an interpretation of the claim language.

[00:22:37] Speaker 02:
We're not arguing for disclaimer or lexicography.

[00:22:41] Speaker 02:
And I think where we are is we are in the territory of the Wisconsin case that the board tried to distinguish.

[00:22:57] Speaker 02:
If the specification consistently refers to structure in a certain way, you can adopt that as a construction.

[00:23:04] Speaker 02:
And I apologize.

[00:23:05] Speaker 02:
I don't have that citation handy.

[00:23:06] Speaker 02:
I wanted to touch on what Council said about figure four and in connection with the specification passage at the bottom of column six that refers back to that.

[00:23:20] Speaker 02:
Figure four itself built on figure two.

[00:23:23] Speaker 02:
Figure two does talk about the location service.

[00:23:27] Speaker 02:
Last, Judge Dyke, I'm going to run out of time.

[00:23:30] Speaker 02:
May I have a few seconds to respond to your question about column five?

[00:23:33] Speaker 05:
Go ahead.

[00:23:36] Speaker 02:
Thank you.

[00:23:38] Speaker 02:
So the point that I was trying to make in connection with those passages is that they are consistent with what I was describing in terms of because

[00:23:48] Speaker 02:
The determining a location at all is optional.

[00:23:53] Speaker 02:
A system embodiment in a system embodiment of the presence or absence of a location service is going to be optional because a particular system might not be performing the determining a location.

[00:24:06] Speaker 02:
Thank you.

[00:24:06] Speaker 02:
All right.

[00:24:07] Speaker 05:
Thank you.

[00:24:07] Speaker 05:
Thank both counsel.

[00:24:08] Speaker 05:
The case is submitted.

[00:24:09] Speaker 05:
That concludes our session for this morning.