[00:00:00] Speaker 01:
We're honored to have sitting with us this morning as a visiting judge, the Honorable Allison Burrows, district judge from the District of Massachusetts.

[00:00:09] Speaker 01:
Welcome.

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

[00:00:11] Speaker 00:
Nice to be here.

[00:00:14] Speaker 01:
We have five cases on the calendar this morning, two from district courts, one from the Veterans Court, one from the Patent Office, and one from the MSPB, which is being submitted on the briefs and will not be argued.

[00:00:29] Speaker 01:
Our first argued case is Clear Play versus Dish Network and Echo Style, 2023-2134.

[00:00:39] Speaker 01:
Mr. LaCarrie, is it?

[00:00:49] Speaker 02:
The district court's fundamental error in issuing JMAW is it did not appreciate how to apply the proper standard of review to the jury verdict.

[00:01:01] Speaker 02:
It failed to recognize that the JMAW analysis must apply the instructions as given to the jury, including the claim construction, which is part of the jury instructions.

[00:01:15] Speaker 02:
It also failed to recognize that the court in Jamal is not in a position to make its own factual findings.

[00:01:25] Speaker 02:
Dish acknowledges in its statement of the issues on clear play's appeal that these are governed by the substantial evidence standard.

[00:01:34] Speaker 02:
This is not a claim construction exercise.

[00:01:37] Speaker 02:
But the district court failed to look for substantial evidence supporting the verdict.

[00:01:43] Speaker 02:
And it failed to draw all reasonable inferences in clear play's favor.

[00:01:48] Speaker 03:
But the standard for J-MAL, is it not no legally sufficient basis to support the jury's infringement side?

[00:01:56] Speaker 03:
Yes, Your Honor.

[00:01:58] Speaker 03:
I mean, we can debate whether he did that or not.

[00:02:01] Speaker 03:
But why don't you give us some specifics, starting with the 970 patent?

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

[00:02:05] Speaker 02:
In the 970 patent, the court applied a different claim construction than the instructions given to the jury.

[00:02:15] Speaker 02:
In looking for substantial evidence, the substantial evidence that must be sought.

[00:02:19] Speaker 03:
Well, let me ask you.

[00:02:20] Speaker 03:
In terms of construction, is there any dispute that directly disa- the action must directly disable?

[00:02:27] Speaker 02:
No, Your Honor.

[00:02:27] Speaker 02:
That was part of the instructions.

[00:02:30] Speaker 02:
There is no dispute that it must directly disable.

[00:02:32] Speaker 02:
The question is what reasonable interpretation was the jury free to make out of the many interpretations that could be made under the instructions, including directly disable?

[00:02:45] Speaker 03:
So are we defining what directly mean?

[00:02:48] Speaker 02:
No, that would be a markment analysis.

[00:02:50] Speaker 02:
We are determining whether the jury's interpretation of the instruction given was one reasonable interpretation and whether substantial evidence presented to the jury supported their finding of infringement under that interpretation.

[00:03:05] Speaker 02:
And we can see

[00:03:06] Speaker 02:
from the court's JMAW that it applied a very different.

[00:03:11] Speaker 03:
Okay.

[00:03:11] Speaker 03:
Show me where in the JMAW.

[00:03:12] Speaker 02:
Sure.

[00:03:13] Speaker 02:
Well, I believe an easy exercise for that comparison is actually looking at the red brief of my friend at page 33, where there is a side-by-side comparison between the jury instruction of that construction and one of the articulations within the JMAW order.

[00:03:32] Speaker 02:
Now, the red brief describes

[00:03:36] Speaker 02:
The general construction on the right in the bottom of the previous page as being, quote,

[00:03:41] Speaker 02:
simply plugging the segment bookmarks into the instruction as the accused navigation objects.

[00:03:47] Speaker 02:
But we can see in the actual language, this was a substantially different construction used.

[00:03:53] Speaker 02:
There are three significant differences, but the one that I'd like to draw the most attention to is what has been referred to as the disabling exclusion.

[00:04:01] Speaker 02:
This is language within the original construction that identifies a scenario when disabling is not direct.

[00:04:09] Speaker 02:
In that red,

[00:04:11] Speaker 02:
As opposed to disabling something other than the navigation object that results in the navigation object's filtering action being ignored.

[00:04:22] Speaker 02:
In comparison on the right, the GEMAL analysis significantly expanded that negative exclusion.

[00:04:29] Speaker 02:
It reads, rather than acting on

[00:04:32] Speaker 02:
or disabling something else that indirectly affects the segment bookmarks or simply results in segment bookmarks being ignored.

[00:04:43] Speaker 02:
That acknowledges that disabling is different than acting on.

[00:04:48] Speaker 02:
You can disable something without acting on it.

[00:04:51] Speaker 02:
You can act on something without disabling it.

[00:04:55] Speaker 02:
The J-Mall construction expanded the negative exclusion in order to shrink what was covered then by direct disabling, the active portion of the instruction.

[00:05:10] Speaker 02:
There are other changes that were made as well.

[00:05:13] Speaker 03:
So tell me again, I'm looking at page 33 on the J-Mall order in the, there.

[00:05:20] Speaker 03:
What were, where did we start to get off the,

[00:05:24] Speaker 03:
lane from the jury instruction.

[00:05:26] Speaker 02:
What were the words?

[00:05:28] Speaker 02:
Well, the words in the change that I just identified begin with acting on or disabling.

[00:05:34] Speaker 02:
It's that adding of the acting on or rather than merely disabling something else.

[00:05:41] Speaker 02:
Another change that was made is that the jury instruction included an indicating condition

[00:05:46] Speaker 02:
focusing on intent as one element of direct disabling.

[00:05:51] Speaker 03:
On the left, we see that an action must directly dis- Well, do you think that the claim construction would have allowed for something that

[00:06:00] Speaker 03:
indirectly affects the segment bookmark or simply results in the bookmarks being ignored.

[00:06:05] Speaker 03:
Do you think that's an error in terms of the claim construction?

[00:06:09] Speaker 02:
That was an interpretation that the jury was free to draw under the jury instruction that if something else is acted on but not disabled, that is not within the disabling exclusion.

[00:06:23] Speaker 02:
And if that action was taken with intent,

[00:06:25] Speaker 02:
For example, a light switch was used as an analogy before the jury.

[00:06:29] Speaker 02:
If something is acted on with the intent of disabling something, then that acting on the first thing can be an act of directly disabling the other, such as flipping off of a light switch in order to directly disable the lamp connected behind it.

[00:06:45] Speaker 02:
The language within the jury instruction so that its filtering action is ignored reflects precisely that type of intent, which was removed

[00:06:55] Speaker 02:
from the Jmol analysis on the right.

[00:07:00] Speaker 00:
In addition to change.

[00:07:02] Speaker 00:
You're saying you need the intent?

[00:07:04] Speaker 02:
It's not necessary.

[00:07:07] Speaker 02:
No, it's not needed.

[00:07:08] Speaker 02:
However, the jury was charged with determining directness.

[00:07:13] Speaker 02:
This is something that often is sent to the jury, and juries may consider a variety of factors, including intent, including proximity, proximity of time, proximity of causation, in making the factual determination of whether a disabling was direct or not.

[00:07:30] Speaker 03:
OK, I'm having a hard time seeing where in the record the accused navigation objects are disabled.

[00:07:37] Speaker 03:
At most, all I can see in the record is that something other than accused navigation objects.

[00:07:44] Speaker 03:
are being disabled.

[00:07:46] Speaker 03:
Can you identify where in the record AutoHop directly disables the navigation object?

[00:07:52] Speaker 03:
What's your evidence on that?

[00:07:53] Speaker 02:
Yes, Your Honor.

[00:07:54] Speaker 02:
The record reflects in the jury heard that variables which control whether or not commercial skipping occurs

[00:08:03] Speaker 02:
have their values change between true and false.

[00:08:06] Speaker 02:
There is no argument, even by Dish or no testimony by its expert at trial, that that qualifies as disabling something else.

[00:08:15] Speaker 02:
Those variables continue to function.

[00:08:18] Speaker 02:
The jury.

[00:08:19] Speaker 03:
So those examples disable, directly disable the navigation object?

[00:08:23] Speaker 02:
Yes, Your Honor, when a user selects, for example, the no thanks button in response to being prompted whether they wish to enable channels or commercial skipping, the user selection at that user input sets a variable that is checked by the AutoHop code, which is always running in the background, which was admitted, for example, by Dish's own fact-witness at 18347, that AutoHop is always running,

[00:08:53] Speaker 02:
If the user has made a selection that it does not, the user does not wish to skip commercials, when the variables are checked in an if statement, that determines that the filtering action, the commercial skipping,

[00:09:08] Speaker 02:
will be ignored depending on the variable's value.

[00:09:11] Speaker 02:
The variable still functions.

[00:09:13] Speaker 02:
The jury was free to conclude, to provide its factual finding that the variable is not disabled.

[00:09:23] Speaker 02:
It is still operating just as a light switch which controls a lamp, on or off.

[00:09:28] Speaker 02:
is still enabled.

[00:09:30] Speaker 02:
The switch is performing its function unless something blows out in the switch or it's disconnected from the wiring with the wall.

[00:09:38] Speaker 03:
Where's the navigation object that's disabled?

[00:09:41] Speaker 03:
What is the navigation object?

[00:09:42] Speaker 02:
So the navigation objects are what are called segment bookmarks.

[00:09:46] Speaker 02:
There was not a dispute that those satisfied that requirement.

[00:09:49] Speaker 03:
So what is the direct disabling of the segment bookmarks?

[00:09:52] Speaker 02:
There are two scenarios of that infringement, Your Honor.

[00:09:55] Speaker 02:
The first is the no thanks button.

[00:09:58] Speaker 02:
At the beginning of each playback, the user may select whether or not to enable or disable channel skipping.

[00:10:06] Speaker 02:
That sets a first variable to either true or false, depending upon the user selection.

[00:10:13] Speaker 02:
That display of the option is providing for disabling.

[00:10:18] Speaker 02:
The setting of the variable does directly disable, then, the segment bookmarks filtering actions.

[00:10:27] Speaker 02:
The second act of infringement, which was presented to the jury, is based on changing playback speed between normal play mode and another mode, such as fast forward.

[00:10:39] Speaker 02:
When the user selects an option, such as fast forward, that changes a different bookmark, which is also checked

[00:10:47] Speaker 02:
before a skipping action would occur.

[00:10:51] Speaker 02:
If the user is in fast forward, for example, when a commercial would normally have been skipped, it is entered into enclave so that skipping action is ignored.

[00:11:03] Speaker 02:
The filtering action is ignored because it has been directly disabled.

[00:11:09] Speaker 00:
So are you saying if something's not enabled, then it is disabled?

[00:11:14] Speaker 02:
That question doesn't go directly to the jury instruction.

[00:11:19] Speaker 02:
It's interesting.

[00:11:20] Speaker 02:
I don't believe that something would absolutely need to be either enabled or disabled.

[00:11:30] Speaker 02:
But that really doesn't fall within the language that went to the jury and the construction.

[00:11:34] Speaker 03:
But isn't that exactly what you were just explaining to us, that the no thanks thing that

[00:11:43] Speaker 03:
The segment bookmarks aren't disabled.

[00:11:45] Speaker 03:
They're bypassed or they're ignored.

[00:11:48] Speaker 02:
Oh no, they are, the filtering action of the segment bookmarks is ignored when the check is made.

[00:11:57] Speaker 02:
So I will explain in a little bit more detail.

[00:12:01] Speaker 02:
At time point one, the user is asked, do you wish to disable, to skip over commercials or not?

[00:12:09] Speaker 02:
By making their selection, a variable is set.

[00:12:13] Speaker 02:
That is the direct disabling.

[00:12:15] Speaker 02:
That variable is later.

[00:12:16] Speaker 03:
Well, as my colleague said, there's only an action to not enable AutoHop, not to disable the segment bookmarks.

[00:12:24] Speaker 03:
Is that wrong, what I just said?

[00:12:29] Speaker 02:
Yes, Your Honor.

[00:12:29] Speaker 02:
The jury was free to find that the segment bookmarks were disabled.

[00:12:33] Speaker 02:
Their filtering action, rather, was disabled by virtue of setting the value.

[00:12:39] Speaker 01:
Counsel, I don't want to disable you.

[00:12:41] Speaker 01:
Put your hand to your rebuttal, Tom.

[00:12:43] Speaker 01:
I understand that.

[00:12:44] Speaker 02:
Thank you, Your Honor.

[00:12:45] Speaker 02:
I would reserve the remainder.

[00:12:47] Speaker 01:
All right.

[00:13:16] Speaker 04:
I think it's worth taking briefly a step back before jumping into the 970.

[00:13:26] Speaker 04:
Clearplay's fundamental contention is that notwithstanding having had his preferred theories as to both patents repeatedly excluded from the case,

[00:13:37] Speaker 04:
As a matter of law, in rulings it does not challenge on appeal, the jury instructions somehow allowed it to resurrect those very same theories at trial and the jury on that basis to award nearly half a billion dollars.

[00:13:54] Speaker 04:
On the contrary, the district court properly granted judgment as a matter of law.

[00:13:59] Speaker 04:
So let me start with the 970 patent, briefly address the claim construction.

[00:14:05] Speaker 04:
And then Judge Post get to your questions about substantial evidence.

[00:14:10] Speaker 04:
Clearplay's argument about the 970 is not faithful to the jury instruction.

[00:14:15] Speaker 04:
They ignore the last half of the critical sentence, what we call in our brief, the disabling exclusion, which excludes disabling something other than the navigation object.

[00:14:29] Speaker 04:
that results in the navigation object's filtering action being ignored.

[00:14:33] Speaker 04:
And so Judge Crost, you asked if we are defining what directly means.

[00:14:38] Speaker 04:
And the answer to that is no, because the instruction already did that work for the jury and for the jury.

[00:14:45] Speaker 04:
And so turning to the question about what the record shows on this, Judge Prost, you said you're having a hard time seeing where the navigation object is disabled, and that's because it is not, and their own expert's testimony makes that clear.

[00:15:04] Speaker 04:
Feinster testified that when you select no thanks, it disables

[00:15:08] Speaker 04:
Auto hop quote for this playback instance of this show that's in the appendix at 1 8 5 1 9 the variable that's affected governs whether Quote auto hop is enabled for this show that's it 1 8 5 2 2 simply put as dishes

[00:15:30] Speaker 04:
Senior Vice President of Software testified, if you select no thanks, quote, it's not doing auto-hop.

[00:15:38] Speaker 04:
That's at 1-8-3-8-2.

[00:15:41] Speaker 04:
And if you look at the rest of Feamster's testimony, what is absolutely clear is that this variable that is changed when you select no thanks, that is in the auto-hop source code.

[00:15:55] Speaker 04:
It is not in the segment bookmarks, the accused navigation objects, and again, Feimster.

[00:16:02] Speaker 04:
And this is maybe the most important part of the testimony for these purposes.

[00:16:07] Speaker 03:
But I'm not sure that I understand your friend's analysis.

[00:16:11] Speaker 03:
But I think part of what he's saying is that this action does not enable auto hoc.

[00:16:19] Speaker 03:
So it has an effect.

[00:16:21] Speaker 03:
on the book segments.

[00:16:23] Speaker 03:
And then the question is, is it direct enough to come within the claim language?

[00:16:29] Speaker 04:
So I'm not 100% sure I understand the theory either, but the fact remains that when you select no thanks, it is not

[00:16:40] Speaker 04:
there is no evidence of anything

[00:16:56] Speaker 04:
not a part of the source code.

[00:16:58] Speaker 04:
They are, quote, separate and distinct from AutoHop software.

[00:17:03] Speaker 04:
That's in the appendix at 18770 to 771.

[00:17:07] Speaker 04:
Let me just spit out the site so that you have it.

[00:17:10] Speaker 04:
And 18773.

[00:17:12] Speaker 04:
It's doing a different thing in a different place.

[00:17:17] Speaker 03:
Can I just take you to where your friend sort of began, which is page 33 of your brief, and the comparison that he drew between the jury instructions and the JMAW order?

[00:17:26] Speaker 03:
Sure.

[00:17:27] Speaker 03:
So what's your reaction to the argument he was making about the impact of the different language of his using?

[00:17:34] Speaker 04:
I think it is an incredibly uncharitable ruling of a Jamal order.

[00:17:39] Speaker 04:
Of course, a district court in a case like this is able to and does not commit reversible error when they simply paraphrase and are explaining what the proper analysis was.

[00:17:51] Speaker 04:
But at the end of the day, it makes no difference at all.

[00:17:53] Speaker 04:
Of course, review of Jamal is de novo.

[00:17:57] Speaker 04:
And the question is, under the instruction here, the question is not,

[00:18:02] Speaker 04:
whether the district court used some slightly different words.

[00:18:05] Speaker 04:
Now, I don't want to create a misimpression.

[00:18:07] Speaker 04:
I really don't think there is any actual daylight here.

[00:18:10] Speaker 04:
The only thing that my friend has identified is a question of intent, which they read into the words so that.

[00:18:19] Speaker 04:
That argument about intent appeared in this case for the first time in the reply brief on appeal.

[00:18:27] Speaker 04:
They didn't argue anything about intent.

[00:18:30] Speaker 04:
They didn't argue it previously.

[00:18:31] Speaker 04:
They didn't argue it in the opening brief.

[00:18:34] Speaker 04:
And I don't think that there is any intent requirement

[00:18:37] Speaker 04:
Let me just very quickly add a note on this question of fast forwarding.

[00:18:45] Speaker 04:
The fast forwarding theory has exactly the same problem.

[00:18:50] Speaker 04:
When you fast forward, it just means that, quote, and again, this is from their own expert, Feimster, that skipping would be disabled.

[00:18:58] Speaker 04:
That's at 18524.

[00:19:00] Speaker 04:
There is no action happening on these segment bookmarks themselves.

[00:19:07] Speaker 04:
It is all just something that is going on in the source code and which governs the mode of playback as a whole.

[00:19:19] Speaker 03:
In gray, clear play takes issue with your little lamp analogy and suggests that the jury was free to interpret directly disabled as covering acts that proximately caused disabling.

[00:19:36] Speaker 03:
Do you agree with that?

[00:19:38] Speaker 04:
So I do not agree with their read of the lamp analogy, nor with what occurred here.

[00:19:45] Speaker 04:
And I think it goes back to Your Honor's initial point.

[00:19:47] Speaker 03:
Is that what the daylight is between what you're saying and what your friend is saying, that they're allowing for direct disabling to cover proximately causing the disabling?

[00:19:57] Speaker 04:
No, Your Honor, for the following reason.

[00:20:00] Speaker 04:
And again, I would emphasize sort of the disabling exclusion in the instruction.

[00:20:07] Speaker 04:
They put it a different way.

[00:20:09] Speaker 04:
If the whole instruction were an action must directly disable a navigation object, full stop, then maybe we'd have a nice conversation about what directly means.

[00:20:19] Speaker 04:
But the instruction goes on to tell us exactly what

[00:20:23] Speaker 04:
directly disabling means in this context, as opposed to disabling something other than the navigation object.

[00:20:30] Speaker 04:
And so we're not having a conversation here about proximacy.

[00:20:34] Speaker 04:
The issue, going back to the substantial evidence question, is that something entirely different is happening in a different place in the AutoHop source code.

[00:20:46] Speaker 04:
I wonder, I'm cognizant of the clock moving quickly.

[00:20:51] Speaker 04:
I don't want to close off this line of inquiry, but I do wonder if it makes sense for me to address the 799 patent.

[00:20:58] Speaker 01:
Yes, yes.

[00:20:59] Speaker 01:
You have half your time left, so please do.

[00:21:02] Speaker 04:
Perfect.

[00:21:02] Speaker 04:
Thank you, Your Honor.

[00:21:03] Speaker 04:
So let me turn to that.

[00:21:06] Speaker 04:
Clear Play does not dispute that there is no literal infringement under the single object approach to navigation objects.

[00:21:15] Speaker 04:
the approach that the court undisputedly adopted as a matter of law at Daubert in granting this partial summary judgment and, again, in a pretrial ruling.

[00:21:25] Speaker 04:
Their sole theory, going back to where I started, is that the jury instruction somehow allowed them to present a theory that the court repeatedly had excluded from the case.

[00:21:36] Speaker 03:
But did the jury instruction say anything?

[00:21:38] Speaker 03:
Well, the jury instruction didn't instruct the jury about the single object construction, right?

[00:21:44] Speaker 04:
So it instructed the jury in a couple of ways.

[00:21:47] Speaker 04:
It pointed to plain and ordinary meaning as defined by the terms of the claims.

[00:21:53] Speaker 04:
And so let's look at what the claims say.

[00:21:56] Speaker 04:
In the critical claim language, it specifies the configure.

[00:22:02] Speaker 04:
And this is at A372.

[00:22:05] Speaker 04:
column 22, lines 18 to 19, the configuration identifier of the particular navigation object.

[00:22:18] Speaker 04:
There is a one-to-one pairing between the navigation object and the configuration identifier.

[00:22:25] Speaker 04:
And we know that from the use of the definite article, the, and especially from the language particular.

[00:22:33] Speaker 04:
We get that same formulation in columns 10 to 11, activating the filtering action assigned to the particular navigation object.

[00:22:43] Speaker 04:
And this is squarely controlled by this court's decision in Wharf versus Apple.

[00:22:52] Speaker 04:
Wharf explains.

[00:22:54] Speaker 04:
at pages 1347 to 48 that the plain meaning of particular is associated with a single thing.

[00:23:04] Speaker 04:
So in Worth, it was a prediction and a load identifier.

[00:23:09] Speaker 04:
And the court held that the use of the word particular meant association with only a single load instruction and that association with more than one load instruction would not meet this

[00:23:22] Speaker 04:
Instruction that again was on Jamal.

[00:23:24] Speaker 04:
It's in exactly the same posture that we have here and clear plays multiple object or multi object theory by which a navigation object is this sort of formless assigning of elements within the announcement file from which you can pick and choose and share among them is directly contrary to that claim language

[00:23:53] Speaker 04:
I would add to that that the patent, in its sort of structural terms, enumerates what you can almost think of as Russian nesting dolls.

[00:24:04] Speaker 04:
It says you have an object store.

[00:24:07] Speaker 04:
You create that.

[00:24:08] Speaker 04:
Then you separately create a plurality of navigation objects.

[00:24:13] Speaker 04:
You place them within the object store.

[00:24:16] Speaker 04:
In addition, it says, each navigation object contains, and I point the court to column four, lines 45 to 47, which is claim limiting language in the written description.

[00:24:31] Speaker 04:
The present invention includes.

[00:24:33] Speaker 04:
And it says you create the navigation objects.

[00:24:37] Speaker 04:
Each navigation object contains a start, a stop, and a filtering action.

[00:24:43] Speaker 04:
Moreover, the instruction itself specifies that A267

[00:24:48] Speaker 04:
The configuration identifier must be, quote, contained within the navigation object.

[00:24:55] Speaker 04:
So to your question, Judge Pros, did the instruction inform the jury of this single object approach?

[00:25:03] Speaker 04:
It did by pointing the jury to the claim language, which is absolutely unmistakable on this score.

[00:25:11] Speaker 04:
Every indication, the claims, the written description, and indeed the prosecution history, and I'll say a word about that in a moment, make clear that the navigation objects are self-contained and independent from one another.

[00:25:28] Speaker 04:
Now, on the question about the prosecution history, we lay all of this out in the red brief at 59 to 62.

[00:25:34] Speaker 04:
But again, we have clear play saying over and over and over to the patent office.

[00:25:41] Speaker 04:
It understands this pattern in exactly these single object terms.

[00:25:45] Speaker 04:
And so to pick just one example, at 13842, it says that navigation objects are, quote, bundles of information

[00:25:54] Speaker 04:
that are not dependent on one another.

[00:25:58] Speaker 04:
And the PTO understood that this was the argument that they were getting.

[00:26:02] Speaker 04:
They said each navigation object, quote, necessarily contains a filtering action and is not a mere, quote, distributed association of elements.

[00:26:16] Speaker 04:
I would add that under this single object approach, Clearplay does not deny that they cannot prevail on literal infringement.

[00:26:26] Speaker 04:
And that's for good reason.

[00:26:29] Speaker 04:
The configuration identifier, here it's called a model targeting descriptor.

[00:26:35] Speaker 04:
They admit that it's shared.

[00:26:36] Speaker 04:
That's in their opening brief at 57.

[00:26:38] Speaker 04:
And we lay this out in the red brief at 65.

[00:26:42] Speaker 04:
They've also pointed to the show metadata field as the filtering element.

[00:26:48] Speaker 04:
And again, that plainly is shared.

[00:26:52] Speaker 03:
So on the DOE, the judge used the kind of two hands that we have on DOE, right?

[00:26:59] Speaker 03:
No function way result, no particularized testimony, and then also this vitiation concept.

[00:27:06] Speaker 03:
So the vitiation seems to be tricky in some of our cases.

[00:27:10] Speaker 03:
I mean, it kind of, read literally, it could just undo DOE in its entirety.

[00:27:16] Speaker 03:
Right.

[00:27:17] Speaker 03:
So is that a problem for us here?

[00:27:19] Speaker 04:
I don't think it is, because I think the simpler way to resolve this is under function way result.

[00:27:25] Speaker 04:
Again, looking to Feamster's own testimony.

[00:27:29] Speaker 04:
Far from explaining, take a step back.

[00:27:33] Speaker 04:
As an initial matter, Feamster's testimony on this

[00:27:36] Speaker 04:
was exactly the sort of generalized testimony that this court repeatedly has said does not rise to the level of establishing DOE.

[00:27:47] Speaker 01:
But moreover, in talking about the- On this initiation, you've got shearing versus not shearing.

[00:27:56] Speaker 01:
Sounds like initiation to me.

[00:27:59] Speaker 01:
And you've got a multi-object structure versus a single-object structure.

[00:28:05] Speaker 04:
I absolutely, absolutely agree, Your Honor.

[00:28:08] Speaker 04:
And again, that's why the court ruled on the alternative, and we argued it both ways.

[00:28:12] Speaker 04:
I would only say just in response to Judge Prost's question that Feenster's testimony also shows

[00:28:20] Speaker 04:
that you cannot meet function weight result.

[00:28:23] Speaker 04:
These are being done in fundamentally different ways.

[00:28:27] Speaker 04:
And we know that because Feamster said that.

[00:28:29] Speaker 04:
He said that not sharing would be, quote, inefficient and ridiculous.

[00:28:36] Speaker 04:
That is the opposite of saying that they are being done in the same way.

[00:28:39] Speaker 04:
He himself testified that they were being done in fundamentally different ways, that sharing and not sharing.

[00:28:46] Speaker 03:
In my experience or my recollection, which is purely anecdotal, a lot of these DOE claims that go down because they're not particularized and they're just general go down on summary judgment.

[00:28:57] Speaker 03:
Was there summary judgment on the DOE question?

[00:28:59] Speaker 04:
No, the court let this go to the jury.

[00:29:01] Speaker 04:
We thought that it should not have done so.

[00:29:04] Speaker 04:
But I might push back slightly.

[00:29:06] Speaker 04:
There are plenty of these cases that also go down on DOE.

[00:29:09] Speaker 04:
after a jury verdict.

[00:29:10] Speaker 04:
My recollection is that Texas Instruments and VLSI are both after a verdict.

[00:29:15] Speaker 04:
And I believe we cite some others in our brief as well.

[00:29:21] Speaker 04:
Plastic Omnium makes absolutely clear that when you have testimony that doing something in a different way would be, again, to quote Feenster, inefficient or ridiculous, you are not doing it in the same way.

[00:29:35] Speaker 04:
So I see that I'm well past my time.

[00:29:38] Speaker 04:
I'm happy to answer any other questions about the argument in the alternative or our prosecution history estoppel argument about DOE, if the court has any.

[00:29:48] Speaker 01:
Thank you, counsel.

[00:29:49] Speaker 01:
Mr. McHale.

[00:29:55] Speaker 02:
It's very important that we keep our analysis focused on what was before the jury.

[00:30:01] Speaker 02:
Prosecution history arguments, arguments about other proceedings over these patents were not before the jury.

[00:30:07] Speaker 02:
What was before the jury were the instructions, including the claim construction.

[00:30:12] Speaker 02:
At Appendix 267, the jury received its instruction on configuration identifier, which my friend argues cannot have anything other than a one-to-one correspondence.

[00:30:24] Speaker 02:
That construction reads, configuration identifier means an identifier, singular, of the consumer system.

[00:30:35] Speaker 02:
It is used to determine if the navigation objects, plural,

[00:30:41] Speaker 02:
applied to the particular consumer system.

[00:30:44] Speaker 02:
Right there, in the journey's instructions, we see navigation identifiers, configuration, the configuration identifier permitting one configuration identifier for multiple navigation objects.

[00:30:59] Speaker 02:
We also see in the construction of navigation objects, which begins on the previous page and continues into 267, that that permits

[00:31:09] Speaker 02:
the elements of the navigation object being contained within the same object or file through our data structure.

[00:31:17] Speaker 02:
So it's critical to keep our analysis here focused on the instructions.

[00:31:22] Speaker 02:
The JML order

[00:31:24] Speaker 02:
went to other documents.

[00:31:26] Speaker 02:
It went to the summary judgment order repeatedly.

[00:31:29] Speaker 02:
It cited summary judgment 34 times and only cited the jury instruction 12 times.

[00:31:38] Speaker 02:
That lost sight of the proper standard of review on Jamal.

[00:31:43] Speaker 02:
Briefly regarding the filtering action, which was also mentioned in connection with the 799 patent, substantial evidence before the jury showed that the filtering action does not appear only once in a shared manner, but instead appears for each of the navigation objects through positional values.

[00:32:04] Speaker 02:
That was testified to by Feamster at Appendix 18462.

[00:32:11] Speaker 02:
And when looking at the doctrine of equivalence, it is also important to look at the jury instruction.

[00:32:17] Speaker 02:
For the doctrine of equivalence, that was Appendix 274, where the jury was instructed that function-way result is one way to show equivalence.

[00:32:28] Speaker 02:
They were then instructed that another way to show equivalence is in substantial differences.

[00:32:35] Speaker 02:
And they were instructed that known interchangeability may support a conclusion of equivalence.

[00:32:42] Speaker 02:
Discussing case law, discussing decisions and orders outside of the jury's universe, the jury's charge deviates from the core guiding standard of review in Jamal.

[00:32:56] Speaker 02:
Jury instructions are strategic choices made by the parties.

[00:33:01] Speaker 02:
They are as specific as the parties choose them to be, and they are not challenged here.

[00:33:06] Speaker 02:
So we must remain diligent in applying the instructions before the jury.

[00:33:12] Speaker 01:
We have your argument.

[00:33:15] Speaker 01:
Thank you to both counsel.

[00:33:17] Speaker 01:
The case is submitted.