[00:00:00] Speaker 04:
before 1156, SurfCast Inc.

[00:00:03] Speaker 04:
versus Microsoft Corporation.

[00:00:05] Speaker 04:
Good morning, Your Honor.

[00:00:06] Speaker 04:
Wait a moment.

[00:00:08] Speaker 04:
Okay, Mr. Seale.

[00:00:09] Speaker 01:
Good morning, Your Honor.

[00:00:10] Speaker 01:
May it please the Court.

[00:00:11] Speaker 01:
I have two points that I want to emphasize today in the argument.

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One is that a tile is an image, which is separate and distinct from a window.

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And we'll get into why that is, but really the support for that comes straight from the common specification to all four circuit patents.

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And once we establish that a tile is an image,

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separate distinct from window, we will show that there is no underlying evidence in the prior art of any of the MSIE kit active desktop items or active channel items showing an image that matches onto the claim tile.

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That's one.

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The second point I'd like to make today is a grid, as claimed in the assorted patents, is an object that is separate from the tiles.

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It has properties of its own.

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Not only does it dictate where the tiles are positioned, it also controls certain properties of the tiles.

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So it is something that exists independently.

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And we will also show that there is nothing in the prior arts that shows there is an independently existing grid.

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Instead, what the MSIE kit reference shows is an arrangement of

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items that appears to be a grid.

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It's in a row and column arrangement, but there's no underlying structure that qualifies as a grid under the term as you used in the assorted patents.

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Just to confirm, the case turns totally on claim construction, correct?

[00:01:30] Speaker 01:
That's correct, Your Honor.

[00:01:31] Speaker 01:
Well, yes, yes.

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I was going to get into a stop.

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If we agree with you,

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you win, otherwise the other side wins, right?

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That is correct.

[00:01:40] Speaker 02:
Okay.

[00:01:40] Speaker 01:
So, well, I only qualify that.

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The only issue before the court today in terms of claim construction, we could win on claim construction and get a remand potentially to discuss other private references, but yes, this is claim construction.

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In terms of before us?

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Correct.

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Okay.

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So when it comes to tile, the parties competing in constructions, we use a graphical representation

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to describe what a tile is.

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The PTAB and Microsoft use a graphical user interface element, but really what that is at heart is an image.

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If you look at appendix page 197, this is the specification for the 338 patent, which again is common to all Florida patents.

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It tells us very clearly the tile is an image.

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And this is not an embodiment.

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This is not permissive language.

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This is language that describes the structure of tiles as claimed by the vets.

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So the tile is an image.

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This is a column 12.

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Where is this at 197?

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Page 197, column 12, lines 43 through 46.

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The tile is an image that at any given instant is resident on the file system.

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This image is separate and distinct from the application program or file associated with the tile.

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So right there, it's very clear and plain, a tile is an image.

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And that alone dictates.

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This tile is an image argument.

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It sounds different from what my understanding of what

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dispute was going to be about, which was you wanted an additional limitation added into the claim construction about a tile as providing a more limited representation than what's provided in a window.

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That's my understanding.

[00:03:28] Speaker 01:
That's correct.

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Your understanding is correct.

[00:03:29] Speaker 03:
I will get there.

[00:03:30] Speaker 03:
So when we're talking about a tile as an image, I'm not sure how that's connecting to what the actual dispute is, the actual language you wanted to add and inject into the claim construction that the board didn't grant.

[00:03:46] Speaker 01:
In order to understand why a tile presents a more limited set of information than the underlying information, it's important to note that the tile is an image that is associated with underlying information.

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So a window is an image, right?

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A window can contain an image.

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Potentially, a window is a display that can include images.

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A window, as discussed in the patent, is not in itself an image.

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It is an application.

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So if you look at the definition I just read, how a tile is an image associated with an underlying application or file, a window in that example would be the application or file.

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I don't remember in your blue brief, and maybe I'm wrong about this, that you're arguing that the distinction

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here was that tile was an image in a window wasn't an image.

[00:04:34] Speaker 04:
Where's that in your brief?

[00:04:35] Speaker 01:
That is not in the brief, your honor.

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So the argument is that a tile and a window are distinct.

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And you're looking at this de novo, so I'm just pointing you to parts in the record that you can rely on.

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You've got to make your arguments in your blue brief.

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If you didn't make the argument, we're not going to consider it.

[00:04:51] Speaker 01:
Well, the argument was that a tile and a window are distinct.

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What I'm attempting to do at this point is explain why, provide some additional context in the patent.

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And one of the key points, as Judge Chen pointed out, is that a tile discloses a limited representation of information than the underlying information.

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What does that mean, a more limited representation?

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So if a tile is an image and a window is the underlying application or file, a tile discloses a portion but not the entire.

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information.

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So in order to get the entire information from a tile, the user has to select a tile.

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And there's a section in specification that talks about tiles being selected online.

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So it has to display less content than what a window would display?

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Correct.

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OK.

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That seems to clash with the prosecution history, where during the prosecution of your parent patent, you told

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the PTO, and this is in the joint appendix at 12.321, that a tile, quote, differs from a window in that a tile is smaller than a window, thereby permitting multiple tiles to be displayed simultaneously without overlapping one another, and without necessarily truncating the display of content.

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So that's why it feels like what you're now asking to add into the construction

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directly clashes with what you told the PTO as to the meaning of what a tile is?

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I would say they're consistent.

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The language used in the prosecution tree was more permissive.

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It doesn't necessarily truncate, but the idea is that the information in the tile... So it can or cannot truncate?

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The information in the tile does truncate.

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It provides... Well, that's what you want today.

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I'm saying what you told the PTO back in the day.

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is it doesn't necessarily truncate.

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Right.

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So that was qualified.

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And I think the way to read that, consistent with the actual specification, is Russell was said to the PTO.

[00:07:00] Speaker 03:
OK.

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Let's ignore what you said to the PTO.

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I don't mean to ignore it.

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But I was saying, if there's a conflict between what was argued in the prosecution and what the specification says.

[00:07:09] Speaker 04:
Well, the specification said pretty much the same thing in column 11.

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is the tile will typically be smaller in size than the window, allowing the user to view multiple tiles simultaneously at the same time.

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That's a size distinction.

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That section, Your Honor, doesn't speak to the content.

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It speaks to the size of the tile versus the size of the window.

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And we're not relying on the difference in size as a definitional distinction in the briefs or here today.

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What is the best statement in this specification that proves to us that a tile is distinct from a window because the tile necessarily is displaying some truncated amount of content than would otherwise be displayed in a window?

[00:08:05] Speaker 01:
It is a combination of statements.

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The first being staying on appendix page 197, column 12, lines 8 to 15.

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When a tile is selected, whether by mouse click or otherwise, the tile instantly provides the user with access to the underlying information.

[00:08:22] Speaker 02:
What lines is that again?

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That is column 12, lines 8 to 15 on appendix page 197.

[00:08:29] Speaker 01:
OK, was that the end of your quote?

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That is one part of the evidence.

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That didn't really pop for me in terms of saying what you wanted to say.

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So the logical implication there is that in order to get access to that underlying information, the user has to select a tile, which means prior to selection, the user does not have access to that information.

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The tile does not convey the underlying information until it is selected.

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You have a second quote?

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A second quote is that a window is full information.

[00:09:04] Speaker 03:
I'm sorry, where?

[00:09:05] Speaker 01:
Hold on one second.

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That, I believe, is in column, the end of column three, beginning of column four.

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And it's describing the prior arts.

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So yes, in appendix page 193, if you look at column 3, line 65, this is where the patent is distinguishing between icons and windows.

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It says, consequently, the user's viewing options are limited to a choice between one presenting very limited information about a multitude of programs, that's an icon, and one presenting full information

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but only of a single program or data source.

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That's a window.

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So the patent tells us that the prior art windows, that it was distinguishing from tiles, displayed full information.

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Well, that's distinguishing from icons.

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That's distinguishing windows from icons, but it says that windows are distinguishable because they provide full information.

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Compared to icons.

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Yes, but also compared to tiles.

[00:10:00] Speaker 03:
Well, that, it's not talking about tiles right here.

[00:10:03] Speaker 01:
That sentence doesn't.

[00:10:04] Speaker 01:
So if you read that sentence in

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conjunction with the sentence that says a tile does not provide access to the underlying information until it is selected.

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That brings you to the place where a tile is necessarily providing content that is less than the underlying information.

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Otherwise, there would be no need to select it.

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It would be on the tile.

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The user would have access to it without taking any action whatsoever.

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And I would note that all of the examples of a tile providing information to a user upon being selected are providing more information.

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Now, some of those are from preferred embodiments, some of the language is permissive, but taken as a whole with the sentences that we just read from the specification, the only logical conclusion is that a tile, as distinct from an icon and a window, provides a limited set of information that a window would provide, which is, according to the patent, full information.

[00:10:59] Speaker 03:
Did you cite this sentence on column 12 to the board?

[00:11:03] Speaker 01:
On column 12 to the board.

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The tile is an image that any given instance of that sentence?

[00:11:10] Speaker 01:
I believe... When the tile is selected.

[00:11:13] Speaker 01:
Oh, we did.

[00:11:14] Speaker 01:
That's in the record.

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I'd have to find out simply where, but I'm certain that we did.

[00:11:25] Speaker 01:
There was some discussion at the hearing as to whether

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An image would be a tile if the underlying information was also an image and whether there was a loss in resolution.

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And our position here today is that in that situation, anything that provided less information than the underlying information would be a tile.

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If all the underlying information was present on the image that the user sees without selecting, that's a window because that's full information.

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So we would make that distinction.

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And I would just note that there are other sections in the specification that refer to tile images, tile pictures, graphics, as opposed to a window.

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And a window certainly possibly could be an image.

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It's certainly not something that's necessary.

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It's not inherent in the nature of a window that it's an image, as opposed to a display, which is a term that the patent uses very differently.

[00:12:27] Speaker 01:
A display could include many images plus hyperlinks and other things.

[00:12:32] Speaker 01:
with a tile being an image.

[00:12:35] Speaker 01:
There is nothing that the petitioners point to in the petition or in the briefing in active desktop, either channels or items, that is an image.

[00:12:43] Speaker 01:
They point to web pages.

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So an active desktop item, admittedly through their own brief, is a web page.

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An active channel item is a web page.

[00:12:51] Speaker 01:
There's no suggestion that those are images as the patent says the tiles are.

[00:12:56] Speaker 03:
Now, it's possible that you... I don't think that argument was made below, right?

[00:13:01] Speaker 03:
No, the image... The thing between tiles must be images and therefore the prior art does not teach tiles because the prior art doesn't teach images.

[00:13:10] Speaker 01:
True.

[00:13:11] Speaker 01:
The argument today is that because it's an image, it necessarily conveys less context than a web page, for example.

[00:13:16] Speaker 01:
A web page is not an image.

[00:13:18] Speaker 04:
You admitted earlier you didn't argue that.

[00:13:22] Speaker 01:
But it's in the record, Your Honor.

[00:13:23] Speaker 01:
And for claim destruction purposes, under de novo review, you're entitled to look at anything in the intrinsic record.

[00:13:27] Speaker 01:
So it would be helpful to you.

[00:13:29] Speaker 03:
When you started talking about the prior art doesn't teach a tile, because the prior art doesn't teach an image, I mean, that is something that needed to be argued and presented below.

[00:13:40] Speaker 03:
And I don't think you argued and presented that theory

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why the prior art does not teach the concept.

[00:13:45] Speaker 01:
We did distinguish between tiles and icons, and icons are images, because tiles do feature.

[00:13:50] Speaker 03:
I know, but let's just boil it down.

[00:13:52] Speaker 03:
I mean, getting back to my question, I don't believe that specific argument was presented to the board for the board to confront and then have to address and resolve.

[00:14:01] Speaker 03:
Is that fair to say?

[00:14:03] Speaker 01:
That is fair to say, and that is correct.

[00:14:04] Speaker 01:
And I beg the court's

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Forgiveness and tolerance in that, but the purpose here is not to introduce any arguments.

[00:14:10] Speaker 01:
It's to give you the information that you need to make a de novo determination of plank destruction based on the intrinsic record before you.

[00:14:16] Speaker 01:
That is all.

[00:14:19] Speaker 01:
So I've got just a minute left.

[00:14:22] Speaker 04:
I don't even want to talk about it.

[00:14:24] Speaker 01:
Real quickly, I just want to emphasize that a grid is a structure.

[00:14:27] Speaker 01:
There's nothing in the underlying prior art that discloses a grid structure.

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It's just an arrangement of tiles that happens to align.

[00:14:34] Speaker 01:
And rows and columns is not a grid.

[00:14:36] Speaker 01:
That term is used in the patent.

[00:14:39] Speaker 04:
Thank you.

[00:14:39] Speaker 04:
We'll give you two minutes for a bottle.

[00:14:46] Speaker 04:
Mr. Fougere, is that how you pronounce it?

[00:14:53] Speaker 00:
What we just heard is a different case than I expected to be arguing, so I'd like to argue about what was in the briefs.

[00:15:04] Speaker 00:
And the focus of the discussion here today has been on the word tile.

[00:15:09] Speaker 00:
The only issue relevant to patentability is Sir Cass appendage phrase, which is what they're using now to try to build in this idea of an image, that the representation of the underlying information must be more limited than the representation provided by a window.

[00:15:26] Speaker 00:
The board was all over this.

[00:15:28] Speaker 00:
It asked repeatedly for the distinction between windows and tiles and what set them apart.

[00:15:33] Speaker 00:
Surfcast could provide it and in fact admitted at one point that one of the weaknesses of the specification is that it may not be as clear as they would prefer it to be.

[00:15:42] Speaker 00:
That's absolutely true.

[00:15:44] Speaker 00:
Surfcast has been trying to pin down the specifications alleged difference between windows and tiles for more than a decade.

[00:15:51] Speaker 00:
And it's always changed.

[00:15:52] Speaker 00:
At the PTO, as you said, Judge Chen, it was about size and toolbars.

[00:15:56] Speaker 00:
In the 403 litigation, it was about persistence or selectability.

[00:16:01] Speaker 00:
In the blue brief, it was about a more limited representation.

[00:16:05] Speaker 00:
But it doesn't take very much effort to look at what the blueberry said and see that it's not lexicography in any way, shape, or form as definitional.

[00:16:15] Speaker 00:
So on page five, they said that a tile's defining characteristic is how it presents content.

[00:16:22] Speaker 00:
And then they said, the specification discloses four distinct manners in which a tile provides a more limited representation of information.

[00:16:30] Speaker 00:
They then block quote from the specification at appendix 197, column 11, lines 35 to 41.

[00:16:38] Speaker 00:
But what they leave out, not only does that say tiles may present, but what they leave out is that the sentence starts, for example, in a preferred embodiment.

[00:16:47] Speaker 00:
That's not lexicography.

[00:16:49] Speaker 00:
It's not definitional.

[00:16:50] Speaker 00:
And that's what they said the defining characteristic was in their blueberries.

[00:16:57] Speaker 00:
They said the same thing at page 29, where they claimed that there was an express disclaimer that tiles are not windows by citing to a statement about how tiles do not necessarily have toolbars.

[00:17:09] Speaker 00:
Same point.

[00:17:11] Speaker 00:
Some do have toolbars, but that is a statement about what they do not necessarily have, and it does not define what a tile is.

[00:17:19] Speaker 00:
The story is the same for GRID.

[00:17:21] Speaker 00:
There wasn't much discussion of it in the opening argument, but they argue, again, lexicography from examples and embodiments.

[00:17:30] Speaker 00:
If you look at each of the specific things that they say provides a definitional statement from the specification, it doesn't.

[00:17:37] Speaker 00:
And the reply brief further undermines their attempt to import limitations about continuity and control.

[00:17:43] Speaker 03:
They're saying the grid somehow provides structure that the prior art was lacking.

[00:17:50] Speaker 03:
And that the grid controls the layout of the tiles.

[00:17:55] Speaker 00:
Right.

[00:17:56] Speaker 00:
That is some sort of active element.

[00:17:58] Speaker 00:
And there are two responses, or several responses to that.

[00:18:03] Speaker 00:
But the board very correctly looked at what they were citing and said, this is just about preferred embodiments.

[00:18:09] Speaker 00:
It's just talking about section, I think it's figure seven.

[00:18:13] Speaker 00:
And in any event, the reply brief comes back to this enforcement point and says, well, users can move tiles around the grid.

[00:18:23] Speaker 00:
But there's also this independent claim, I believe it's 17, that says you can have software that actually automatically does certain things for the grid.

[00:18:34] Speaker 00:
But that just proves our point.

[00:18:38] Speaker 00:
That means that it's not inherent in the definition of grid itself if you have to have a further independent claim saying, provide software to do this.

[00:18:46] Speaker 00:
And we also cited in the Reds brief at pages 17 to 18 how this sort of enforced control idea is, again, something about preferred embodiments.

[00:18:58] Speaker 00:
We said at the bottom of 17, carrying over,

[00:19:00] Speaker 00:
The grid says, or the spec says, in some embodiments, grids comprise instructions for assigning tile size intelligently when a user specifies or receives a number of tiles.

[00:19:11] Speaker 00:
That's a preferred embodiment.

[00:19:13] Speaker 00:
It's not the definition of grid and nothing in the claim or in any of the specification statements that they've pointed to defines grid.

[00:19:21] Speaker 00:
Surfcast didn't argue about the conditional request issue.

[00:19:25] Speaker 00:
I'm happy to answer questions about it.

[00:19:28] Speaker 03:
What happened there between the two IPRs?

[00:19:31] Speaker 00:
Why are you laughing?

[00:19:33] Speaker 00:
I think I know why.

[00:19:35] Speaker 00:
Go ahead and answer the question.

[00:19:36] Speaker 00:
I don't know.

[00:19:38] Speaker 00:
I mean, it's the same panel of the board, right?

[00:19:40] Speaker 00:
You don't know.

[00:19:41] Speaker 00:
Well, I mean, now I don't know.

[00:19:43] Speaker 00:
What happened is we presented alternative arguments in both IPRs.

[00:19:47] Speaker 00:
We said, MSIE kit anticipates

[00:19:51] Speaker 00:
And it has this if-modified-sense request that sends over, asks if it's been modified, and it comes back with a yes or no so you know whether it has or not.

[00:20:03] Speaker 00:
We also said if the request should be if-unmodified-sense, then you can look at this RFC 2068.

[00:20:10] Speaker 00:
In one IPR, the board adopted the anticipation argument.

[00:20:16] Speaker 00:
In the other, the board adopted the obviousness argument.

[00:20:19] Speaker 00:
They were alternative arguments made in both for the same limitation.

[00:20:25] Speaker 00:
And I think importantly, Judge Chen, we said

[00:20:29] Speaker 00:
Even if you thought, I mean, we think both are very much supported by substantial evidence, but even if you thought one or the other was better or absolutely correct, affirming one means affirming the other.

[00:20:42] Speaker 00:
They have no response in their gray brief to the fact that that has immediate, preclusive effect on the other IPR.

[00:20:49] Speaker 00:
The issues were the same across both in terms of how they were argued.

[00:20:53] Speaker 00:
So if you think one or the other is good, then that applies to both.

[00:20:58] Speaker 00:
And they don't respond to that.

[00:21:04] Speaker 00:
It's the same claim?

[00:21:06] Speaker 00:
It's not the same claim.

[00:21:09] Speaker 00:
I mean, the conditional request language is the same.

[00:21:16] Speaker 00:
But the claim is not the same.

[00:21:19] Speaker 04:
But I guess your point is it's not inconsistent to say both alternatives are correct, and one we're going to rely on one alternative, and the other one we're going to rely on the other alternative.

[00:21:30] Speaker 00:
That's exactly right.

[00:21:31] Speaker 00:
And in one of the patents, judging on this may be what you're getting at, claim one actually does talk about updating if it has changed, I believe.

[00:21:38] Speaker 00:
And so that

[00:21:41] Speaker 00:
That could have been a part of it.

[00:21:43] Speaker 00:
But Judge Dike, that's exactly right.

[00:21:45] Speaker 00:
You can satisfy a limitation in two different ways.

[00:21:49] Speaker 00:
That's what we argued.

[00:21:50] Speaker 00:
The board agreed.

[00:21:52] Speaker 00:
And there's no problem with either one.

[00:21:55] Speaker 00:
But either one suffices to affirm.

[00:21:57] Speaker 03:
Getting back to tile, what do you say about that one sentence, the opposing counsel cited in column 12, about when a tile is selected?

[00:22:09] Speaker 03:
then all of this underlying information pops up.

[00:22:13] Speaker 03:
That is to say, perhaps that's implying, well, the tile as-is is a little bit deficient in what it's displaying, and it's only after you click do you get all the information, unlike a window.

[00:22:29] Speaker 00:
I think that's basing a lot into the sentence, as your questioning earlier suggested.

[00:22:35] Speaker 00:
But I think there's an even more fundamental point about selectability, which is that the blue brief didn't argue about it at all.

[00:22:42] Speaker 00:
This was an issue in front of the board.

[00:22:44] Speaker 00:
The board said, we don't actually see a meaningful difference between the proposed constructions on selection or selectability.

[00:22:51] Speaker 00:
And it doesn't affect our patentability determination.

[00:22:55] Speaker 00:
didn't respond to that whatsoever in the gray brief.

[00:22:59] Speaker 00:
And so it didn't affect the IPRs, and therefore it doesn't affect the patentability issue.

[00:23:07] Speaker 00:
Nor do I think it provides anything like the kind of definitional statement that you would need to say, this is, OK, aha, now after all these years, this is what a tile is.

[00:23:19] Speaker 00:
Unless the panel has any further questions, I would urge you to affirm.

[00:23:24] Speaker 04:
OK, thank you.

[00:23:41] Speaker 01:
Thank you honor quickly with respect to grid what the patent says which is definitional is not limited to any embodiment it says that the incis appendix page 198 column 14 line 28 the grid controls the layout and Priorities of the tiles and priorities refers to how the tiles get updated some get updated more often than others so the grid is

[00:24:02] Speaker 01:
not only controls how the tiles are placed, that is, appendix page 198, column 14, line 28, and it's talking about grids in general, not an embodiment.

[00:24:17] Speaker 03:
But the user can also control the grid, right?

[00:24:22] Speaker 03:
That's what column 14 later on in that column talks about how the user can control the grid.

[00:24:28] Speaker 01:
The user can create the grid, and the user can place tiles onto the grid.

[00:24:33] Speaker 01:
But once tiles are on the grid, the specifier talks about taking a document and dragging and dropping it into the grid to create a tile.

[00:24:40] Speaker 01:
Once they're in the grid, the grid, according to the specification, controls the layout and the priorities of the tiles.

[00:24:48] Speaker 03:
For example, click on a particular tile and expand that tile up on top of the other tiles in the grid, thereby, I guess, breaking up whatever structure you're talking about that the grid has.

[00:25:02] Speaker 01:
What the patent discusses there is moving it into the foreground.

[00:25:05] Speaker 01:
So at that point, it leaves the grid because the user has selected it and is interacting with it like a window, like you would select a window and get more information.

[00:25:13] Speaker 01:
But when a tile is in the grid, is placed in the grid,

[00:25:17] Speaker 01:
The user can put tiles, it can rearrange tiles, but only according to the grid restrictions.

[00:25:24] Speaker 01:
You can't put tiles wherever you want.

[00:25:25] Speaker 01:
Like an active desktop, you can put items anywhere on the overlapping or however you want.

[00:25:31] Speaker 01:
There's no restriction on how you place them.

[00:25:32] Speaker 01:
The grid here controls that.

[00:25:33] Speaker 03:
What does your group read say about the board's alternative finding that even under your construction of grid, the prior art teaches that version of grid?

[00:25:40] Speaker 01:
What the PTAB relied on there was the arrangement of a 3x2 grid of active desktop items that was locked down.

[00:25:48] Speaker 01:
So those items could not be moved.

[00:25:49] Speaker 03:
And what did your blue brief say in response to that finding?

[00:25:52] Speaker 01:
That that's not a grid, because it doesn't control.

[00:25:55] Speaker 01:
It's just... It's locked down.

[00:25:59] Speaker 01:
It's just removing functionality, but it's not controlling where those tiles are placed.

[00:26:04] Speaker 01:
It's not a grid.

[00:26:05] Speaker 01:
It's just an arrangement that happens to be in a 3x2 row and column

[00:26:10] Speaker 04:
form but is not a grid as that term is used in the patents.