[00:00:00] Speaker 03:
Our next appeal for argument is DACA number 23-2189, Bill J. Coe, LLC versus Apple, Incorporated.

[00:00:10] Speaker 01:
Mr. Quote.

[00:00:12] Speaker 01:
May it please the court?

[00:00:17] Speaker 01:
The claims that are issued relate to basically the handset or the mobile device that a person might be carrying.

[00:00:26] Speaker 01:
And admittedly, the claims are

[00:00:29] Speaker 01:
They're long.

[00:00:31] Speaker 03:
Difficult to read.

[00:00:32] Speaker 01:
A little bit, yeah.

[00:00:34] Speaker 03:
Only a patent drafter's mother could love claims like this.

[00:00:39] Speaker 03:
Certainly not a judge.

[00:00:40] Speaker 01:
Well, I will take no responsibility for that.

[00:00:44] Speaker 01:
But to give some context to what we're talking about, because the context of the inventions is location-based exchanges of information.

[00:00:53] Speaker 01:
And as the patent teaches early on, one of the issues is data security and data privacy.

[00:01:00] Speaker 01:
And so you want to ensure that the information you're getting is legitimate and from someone that you actually wanted to receive the data from.

[00:01:08] Speaker 01:
And so what we have is a, you can imagine, and nowadays it's commonplace for apps on your phone.

[00:01:16] Speaker 01:
And as you install an app, it'll ask you certain questions like, do you want to receive notifications?

[00:01:23] Speaker 01:
Do you want to enable location

[00:01:29] Speaker 01:
like the GPS, do you want to allow the app to access your contacts or your photographs and things like that.

[00:01:38] Speaker 01:
Those are all permissions or privileges.

[00:01:43] Speaker 01:
And in the patent, in the 267 as well as the 868,

[00:01:47] Speaker 01:
specifications, it's specifically stated that permissions and privileges, those two terms are used interchangeably.

[00:01:56] Speaker 02:
Just to put this in terms, and maybe I can understand, the way this works is in the real world.

[00:02:01] Speaker 02:
I'm walking down the street, and you see Bobby Van's restaurant is over here on 15th Street.

[00:02:08] Speaker 02:
I have this app on my phone, and I have my phone with me, and I'm walking by Bobby Vance.

[00:02:13] Speaker 02:
And because I'm walking by Bobby Vance, I get a communication that comes in on my phone saying, oh, we have this promotion.

[00:02:22] Speaker 02:
You come in between 12 and 1230, you'll get a free cup of soup, whatever.

[00:02:27] Speaker 02:
Is that what we're talking about here?

[00:02:30] Speaker 01:
Largely, but there's the additional factor that you have already loaded onto your mobile device, the Bobby Vans application, and granted certain rights to Bobby Vans.

[00:02:45] Speaker 02:
Set this up.

[00:02:46] Speaker 02:
I'm sitting there with my phone.

[00:02:48] Speaker 02:
I go to Bobby Vans app, and I go to them, and I say, put me on your system, right?

[00:02:56] Speaker 02:
Yes, exactly.

[00:02:58] Speaker 02:
And if I have another restaurant,

[00:03:00] Speaker 02:
whether it's Devon and Blakely next door, I go to them and say, put me on your system, right?

[00:03:07] Speaker 02:
If you want to load up, I don't know Devon and something.

[00:03:10] Speaker 02:
They're right next to it, by the way.

[00:03:12] Speaker 02:
I say this only because I walk by them.

[00:03:15] Speaker 01:
But yes, that's correct.

[00:03:16] Speaker 01:
So it is an app that you have set up and configured on your device.

[00:03:23] Speaker 01:
And it's back to the whole, am I getting information from who I have?

[00:03:30] Speaker 02:
arranged to get that information and that is by configuring those permissions uh... so i set up these permissions or these arrangements if you will to use a neutral word here and i realize there's an issue about permission and privilege but if i set up one of these arrangements i have to go to each individual restaurant i don't go to some clowder or happen the sky right

[00:03:54] Speaker 01:
uh... it would be specific to particular uh... i had to set it up and each individual establishment correct but it could be a chain for example of understand that i have to go to the chain of the individual restaurant okay uh... and so as judge shaw you've kind of touched on the uh... the question you know the main question is whether a

[00:04:23] Speaker 01:
a preference, which is what's disclosed in Haberman, is a privilege or a permission.

[00:04:35] Speaker 01:
And the art that we're talking about is obviously computer science related.

[00:04:41] Speaker 01:
And in the computer science arts, privileges and permissions have well-understood meaning.

[00:04:49] Speaker 01:
And it is a granted right or authority for your device to do something and it's between two parties.

[00:04:58] Speaker 04:
Can I ask you something?

[00:04:59] Speaker 01:
Certainly.

[00:04:59] Speaker 04:
If we defined permissions as including privileges but not including preferences, would the not including preferences be a negative limitation?

[00:05:12] Speaker 04:
I would think it would be.

[00:05:13] Speaker 04:
I don't know if it's a negative limitation, more so... Well isn't when you construe something and you say it includes everything or includes this except not this, that's a negative limitation.

[00:05:24] Speaker 04:
And my question is, I read our case law saying for a negative limitation, it has to be

[00:05:30] Speaker 04:
clear and unequivocal from the specification or some other source of intrinsic evidence that when you are saying in a claim construction, it doesn't include something.

[00:05:42] Speaker 04:
It's got to be clear and unequivocal.

[00:05:44] Speaker 04:
Am I right about that?

[00:05:46] Speaker 01:
You are correct.

[00:05:47] Speaker 01:
So the way I would phrase it differently is that when you're talking about privileges or permissions, we're trying to determine what those terms mean.

[00:05:59] Speaker 01:
you look at the prior art and what's disclosed in the prior art and whether the prior art fits that definition.

[00:06:07] Speaker 04:
That's right.

[00:06:08] Speaker 04:
And that second step is a question of fact, right?

[00:06:11] Speaker 01:
Correct.

[00:06:12] Speaker 01:
But there are no disputed facts here in that Haberman never uses the word privilege, never uses the word permissions, doesn't talk about granting a right between entities.

[00:06:25] Speaker 04:
But don't we?

[00:06:26] Speaker 04:
Don't we?

[00:06:27] Speaker 04:
I mean, I hear you.

[00:06:28] Speaker 04:
I hear what you're saying.

[00:06:30] Speaker 04:
To me, the concern I have about your argument is that you seem to want me to have a strict understanding of what a preference is, setting aside what Haberman says about what it's using the word preference to mean.

[00:06:48] Speaker 04:
And I think it's better to look at the prior miscase Haberman and say, does it disclose the concept that falls within the definition of permissions and privileges as set forth in the patented suit, right?

[00:07:02] Speaker 04:
I mean, you have to first construe the claim.

[00:07:05] Speaker 04:
And then while you've got a point that that is part of the evidence that would support your side of the

[00:07:12] Speaker 04:
of the argument.

[00:07:14] Speaker 04:
But we also have to look at what else the prior reference says, and whether even if it uses the word preferences, if it's in the context of that, what it's describing is something that in fact falls within the penumbra of what you're saying is a permission.

[00:07:28] Speaker 01:
Yes, Your Honor.

[00:07:30] Speaker 01:
I understand your point.

[00:07:32] Speaker 01:
So what Haberman actually does is instead of just talking about preferences as a general concept, they actually explain what they mean by preferences.

[00:07:41] Speaker 01:
And I'm referring to Appendix 2401, paragraph 25.

[00:07:48] Speaker 01:
And there they say,

[00:07:50] Speaker 01:
The method includes the steps of storing a preferences profile from a person using the mobile devices, wherein a preferences profile represents the types of informational content with which the person using the mobile device desires to be presented.

[00:08:09] Speaker 01:
So they've explained

[00:08:12] Speaker 01:
expressly what they mean by preferences, which is consistent with the plain and ordinary meaning, I think, of preferences as just something I like over something else.

[00:08:21] Speaker 01:
And so conceptually, that's fine.

[00:08:26] Speaker 01:
That's exactly what Haberman discloses, that I want to set my phone or my mobile device, whatever it might be, so that if I want coffee, if I'm interested in receiving information about coffee shops,

[00:08:40] Speaker 01:
That's how I set up my phone.

[00:08:43] Speaker 01:
But it's not set up so that, as Judge Schall indicated earlier, where you have to sign up for a particular store or supplier, whatever it might be.

[00:08:55] Speaker 01:
There hasn't been that back and forth that happens.

[00:08:58] Speaker 01:
And to tie it back into the claims themselves,

[00:09:04] Speaker 01:
in both the 267 and the 868.

[00:09:06] Speaker 01:
They're recited in different ways.

[00:09:09] Speaker 01:
But in the 267, there's a limitation.

[00:09:12] Speaker 01:
Searching by the mobile data processing system, the privileged data stored local to the mobile data processing system for matching privilege upon the receiving

[00:09:23] Speaker 01:
And then it talks about the matching privilege being configured to relate the originating identity of the whereabouts data with the destination identity.

[00:09:33] Speaker 01:
And this relating of the originating data, the originating data would be the restaurant.

[00:09:40] Speaker 01:
I forgot the names of the restaurants you mentioned.

[00:09:45] Speaker 01:
And then the destination identity would relate to the application that I could just put on my phone

[00:09:52] Speaker 01:
for that particular restaurant.

[00:09:56] Speaker 01:
And then in the 868 patent, conceptually it's described in a different way where you have a first identifier, second identifier, third identifier, and there's a matching of some of those identifiers to say, okay, that's data from someone that I had wanted to receive data.

[00:10:19] Speaker 04:
What is your response to the board's reliance on the specifications?

[00:10:26] Speaker 04:
Specifically, I think it's J406, column 124, lines 15 to 24.

[00:10:34] Speaker 01:
I'm sorry, your honor.

[00:10:35] Speaker 04:
It's that very broad definition of privileges.

[00:10:38] Speaker 03:
Column 124.

[00:10:39] Speaker 04:
Column 124, lines 15 to 24, where it says,

[00:10:46] Speaker 04:
privileges or any configure of privilege granted by one entity to another entity that can limit, enable, disable, delegate, or govern actions, features, functionality, behaviors.

[00:10:57] Speaker 04:
And that's pretty darn broad.

[00:10:58] Speaker 01:
Well, but it is broad in the sense that it can be any configurable privilege.

[00:11:02] Speaker 01:
But it still is a privilege.

[00:11:04] Speaker 01:
It's not talking about anything.

[00:11:09] Speaker 01:
It's still talking about something that is granted from one identity to another.

[00:11:15] Speaker 01:
Admittedly, this specification is rather long.

[00:11:18] Speaker 01:
But there is one instance in which the specification talks about and differentiates preferences from privileges.

[00:11:26] Speaker 04:
There's one sentence.

[00:11:27] Speaker 01:
There's one sentence.

[00:11:27] Speaker 01:
And they list them.

[00:11:28] Speaker 04:
I mean, you're just saying because it makes a list.

[00:11:31] Speaker 04:
In your view, that means that a preference can never be a privilege.

[00:11:34] Speaker 01:
That they are different things, yes.

[00:11:36] Speaker 01:
Correct.

[00:11:41] Speaker 01:
If you have any other questions.

[00:11:49] Speaker 03:
All right.

[00:11:52] Speaker 03:
Is it Mr. Post?

[00:11:54] Speaker 03:
Yes, sir.

[00:11:55] Speaker 03:
OK.

[00:12:06] Speaker 00:
May it please the court.

[00:12:09] Speaker 00:
I'd like to start where counsel's argument ended in terms of the way in which the 267 patent describes privileges

[00:12:19] Speaker 00:
And in particular, the sentence in the specification, and this is at column two, lines 45 through 48, and that's appendix page 345, where preferences and permissions are included amongst a list of conceivable

[00:12:40] Speaker 00:
user configurations.

[00:12:41] Speaker 00:
And these are descriptions of things that can be used to accomplish the control that the privileges in the 267 patent are described as doing.

[00:12:52] Speaker 00:
And I will say that in the context of this sentence, which is, again, an open-ended list, it concludes with and other.

[00:12:59] Speaker 00:
So it is intended to mean these are the only types of things that could accomplish the privilege control.

[00:13:05] Speaker 02:
This is column 2 on 345?

[00:13:08] Speaker 00:
That's correct, Your Honor.

[00:13:10] Speaker 00:
OK, what lines?

[00:13:11] Speaker 00:
Lines 45 through 48.

[00:13:13] Speaker 00:
OK, thank you.

[00:13:15] Speaker 00:
The sentence beginning user's preference is the sentence I'm referring to.

[00:13:18] Speaker 00:
So these are examples.

[00:13:20] Speaker 00:
They are not exclusive.

[00:13:21] Speaker 00:
And they certainly aren't the type of clear and unequivocal language and specification that would support a negative limitation like Bill Jaycoe is advocating.

[00:13:33] Speaker 00:
Because their proposal regarding all of these privilege terms, which is essentially the only dispute that Bill Jaycoe raises with respect to the board's determinations, is that privileges cannot include anything that is really labeled a preference.

[00:13:51] Speaker 00:
irrespective of what the preference in the example of Haberman actually accomplishes.

[00:13:56] Speaker 00:
And it is clear from Haberman's disclosure, and I'll direct the court to additional disclosure in Haberman.

[00:14:03] Speaker 00:
In particular, paragraph 181, and that's at appendix pages 24, 13 to 14.

[00:14:12] Speaker 00:
That's an example in Haberman of these preference profiles being used to affirmatively control whether or not something is presented to the user.

[00:14:23] Speaker 00:
And that's precisely what the 267 patents privileges do.

[00:14:29] Speaker 00:
This isn't the sort of colloquial definition of a preference where I might have a preference in a hotel of a high floor in a room away from the elevator.

[00:14:42] Speaker 00:
But when I check in at midnight, that's not available.

[00:14:45] Speaker 00:
I'm still going to get a room, and it's maybe on floor two.

[00:14:48] Speaker 00:
I'm not going to be sent back outside of the hotel.

[00:14:51] Speaker 00:
The preference of Haberman is not that.

[00:14:55] Speaker 00:
It is, in contrast, something that says, is this message from Bobby Vann is going to be presented or not?

[00:15:02] Speaker 00:
And it's not an optional thing.

[00:15:04] Speaker 00:
It is precisely within the scope of that.

[00:15:07] Speaker 03:
I'm sorry.

[00:15:09] Speaker 03:
I heard opposing counsel.

[00:15:11] Speaker 03:
trying to make a distinction between identities versus information content and in his view privileges about identity to identity and you know who's approved which identities are approved for transmitting information and having that information displayed whereas Haberman

[00:15:36] Speaker 03:
is not so much about approving or otherwise blocking identities or parties, but instead about approving content and thereby blocking other content.

[00:15:51] Speaker 03:
And so therefore, there's not quite a true match between whatever Haberman is disclosing about its approval mechanism and what is being claimed in terms of approval.

[00:16:05] Speaker 00:
So what Haberman describes is that within this preference profile, the user can give certain instructions and store those instructions, and this is as the board found in its final written decision, that control how the system operates.

[00:16:22] Speaker 00:
And there are, beyond the initial privilege terms, other claim terms, destination identity being one of them, during the proceedings,

[00:16:32] Speaker 00:
Bill Jaycoe conceded that the destination identity arguments are the same as the privilege not equal to preferences argument.

[00:16:41] Speaker 00:
But what Haberman does describe is that the information about the broadcast, so what the broadcast system is, the author, these identifiers are checked as part of

[00:16:56] Speaker 00:
the Haberman system, and this was included in the board's final written decision, including an appendix page 11, that this was within the scope of Haberman, of its system, that these were the precisely types of things that a user could configure using the user interface, and that's what came up in the context of the 868 patent to control the presentation of information in an affirmative or negative way.

[00:17:27] Speaker 00:
Just to be clear so that it's not lost in the record, there are two patents at issue in a consolidated appeal.

[00:17:40] Speaker 00:
The claim language is different.

[00:17:41] Speaker 00:
The arguments, however, regarding disclosure in Haberman and in the case of the 868, the disclosure of Bouger aren't disputed.

[00:17:48] Speaker 00:
The dispute is around that privileged claim construction and the attempt to narrowly limit it using a negative construction.

[00:17:57] Speaker 00:
And unless there are any further questions, we'd ask that the board's determination of obviousness be affirmed as to both sets of asserted claims.

[00:18:09] Speaker 03:
OK.

[00:18:09] Speaker 03:
Thank you.

[00:18:10] Speaker 03:
Thank you.

[00:18:21] Speaker 01:
Your honors, I have a couple points, but I just wanted to see if you had any questions before they try saying those.

[00:18:31] Speaker 01:
Okay.

[00:18:32] Speaker 01:
Council had actually said something that was interesting, and the board talked about how the preferences in Haven control how the device works, and he said therefore it's a privilege.

[00:18:50] Speaker 01:
If we could turn back to the list of potential configurable user features or characteristics from APX 345, column 2, line 45-ish, those are all configurable things.

[00:19:07] Speaker 01:
And those are all characteristics that you can use to control the device.

[00:19:12] Speaker 01:
So merely because it's something that can be used to control the device does not make it a privilege.

[00:19:19] Speaker 01:
And it is indeed a non-exhaustive list, but at the end of the day, the list is intended to differentiate different types of user configurations.

[00:19:29] Speaker 01:
And kind of circling back to Judge Chen's point about the identity versus the content, and that's exactly right.

[00:19:39] Speaker 01:
That is our point.

[00:19:41] Speaker 01:
At the end of the day, you might be able to control the type of information that is delivered.

[00:19:48] Speaker 01:
But it's done in a different way using different parameters.

[00:19:53] Speaker 01:
So unless you have anything further.

[00:19:54] Speaker 03:
OK.

[00:19:57] Speaker 03:
Thank you very much.

[00:19:57] Speaker 03:
Thank you.

[00:19:59] Speaker 03:
Case is submitted.