[00:00:00] Speaker 03:
Our next case is number 242368, Same Surf, Inc. versus Intuit, Inc.

[00:00:06] Speaker 03:
Okay, Mr. Block. Go ahead.

[00:00:08] Speaker 00:
Good morning, Your Honors. Alan Block of McCool Smith on behalf of the appellant Same Surf, Inc.

[00:00:15] Speaker 00:
May it please the Court.

[00:00:17] Speaker 00:
The board erred in its construction of the term web browsing interaction data by relying on Intuit's experts' unsupported, conclusory, and irrelevant opinion that the plain and ordinary meaning of web browsing... The board also relied on the claim language and the spec too, right?

[00:00:34] Speaker 00:
It did after first looking to the plain and ordinary meaning and then trying to work backwards from that. It took a very broad meaning, changing the meaning from web browsing interaction data... converting that to data related to web browsing interactions.

[00:00:51] Speaker 03:
Well, which seems to be the sense in which it's used in Claims 5 and 15, isn't it?

[00:00:59] Speaker 00:
You have to read related, though, in the context of the patent, however.

[00:01:06] Speaker 03:
Why doesn't that contradict what you said?

[00:01:11] Speaker 00:
No, and let me explain. I'd like to address that. So, the language...

[00:01:16] Speaker 00:
Information related to a web browsing interaction appears in column 3, lines 10 through 16. It's in the summary section. It's describing the present invention. It says the present invention describes a method.

[00:01:31] Speaker 03:
You're not addressing my question. We'll give you time to go back to the specification. I specifically ask you about claims 5 and 15. You said... that the board made a mistake by construing it as information related to. And those claims use the exact phrase that you just used, related to, and make clear that web browsing interaction data is information related to.

[00:01:59] Speaker 00:
Right. Okay. So in claim five, information related to shared user input web browsing interactions. Okay. So let's first understand what is a web browsing interaction.

[00:02:13] Speaker 00:
Now the specification describes that people on a synchronized browsing session interact with websites. They can share movies. They can share reading. They can go shopping together. They can make travel reservations, they can draw on screens, and those would be shared. Those various things are interactions. They're web browsing interactions. Those things are how a human interacts with a computer.

[00:02:43] Speaker 00:
The computer, though, doesn't understand those until it translates that into computer language.

[00:02:49] Speaker 03:
I don't understand what you're saying. It says related to shared user input depicted in the first web browser window. That seems to be the results of the search.

[00:03:00] Speaker 03:
No? No.

[00:03:01] Speaker 00:
No, it's saying wherein the web browsing interaction data further comprises information related to the web browsing interactions. What I'm saying is related to is not so broad to include the result of the interaction. Related to here is describing the interaction itself, the description.

[00:03:21] Speaker 03:
That's depicted in the first web browser window. That's the results of the search.

[00:03:26] Speaker 00:
No, it's the interaction depicted in the first window. In other words, the host device has a shared window. So it may have unshared windows open as well and a shared window. So it's going to do an interaction in the shared window.

[00:03:43] Speaker 02:
What's going to be on the shared window? The web page. The web page. Right. And then the user. Can't the web page also be part of the web browser interaction data?

[00:03:56] Speaker 02:
It's being shown on the first web browser window.

[00:04:02] Speaker 00:
It's being shown, but remember, there's a session, there's browsing. So an interaction has to occur on one side, the host device, so that the guest device can replicate that interaction. And so the user can scroll up and down. The user can highlight on that web page. The user can... click a link on a web page. That's an interaction.

[00:04:27] Speaker 00:
That interaction then is converted to computer data, which is then sent to the synchronized browsing session. That is the information related to the web browsing interaction. It's not the result. The system wouldn't work if it was the result, because the system that is described here works when A host device does some interaction on a website, clicks a link.

[00:04:57] Speaker 00:
That goes to the website and says, give me that link. Give me the page at that link. That same interaction is packaged into a message. That message is sent to the synchronization server.

[00:05:11] Speaker 03:
Did you have an expert who stated what you just said about how to interpret these claims?

[00:05:18] Speaker 00:
Yes, we did, Your Honor.

[00:05:20] Speaker 03:
Where do we find that?

[00:05:22] Speaker 00:
There's one page in the record.

[00:05:24] Speaker 00:
It's the very last page. Page 2895.

[00:05:36] Speaker 00:
And the paragraph that's cited at 2895 is paragraph 45, where the expert is opining on the plain and ordinary meaning of

[00:05:48] Speaker 03:
of web browsing interaction data in view of the specification, saying it's interchangeable with... Okay, but your expert is not addressing what we were just talking about, about lines 5 and 15. He doesn't address that.

[00:06:05] Speaker 00:
He... I don't recall whether he addressed it or not, but again, it's not in your record.

[00:06:11] Speaker 02:
And to be clear...

[00:06:13] Speaker 02:
Your expert didn't say it would be impossible to include web page data in web browsing interaction. I believe he did say that, Your Honor.

[00:06:24] Speaker 00:
Paragraph 45? Not in 45, but he said it elsewhere. I believe the board addressed that.

[00:06:33] Speaker 00:
Where did the board address it?

[00:06:35] Speaker 03:
Where did he say it?

[00:06:36] Speaker 00:
He said in his declaration it's not in your appendix. wasn't cited in your appendix.

[00:06:42] Speaker 02:
Okay. Well, what about column eight of the patent spec, line 35, which, as you well know, talks about how really any form of web-based content may be activated by a leading device to be relayed by the synchronization server and onto the following devices within the synchronized browsing session. That seems to really underline make clear that the patent is thinking expansively about what kinds of data can be driven by the host device that gets around to the invitee devices?

[00:07:23] Speaker 00:
Right. So the board interpreted that paragraph to mean that the actual data was being transferred from a web page through the synchronization server to the guest device. That's not what it says. What it says is that these things may be activated. Activated means caused to be turned on, hitting play for a movie, for instance.

[00:07:53] Speaker 00:
Then when it says relayed, the specification is very clear that what is being relayed Is this information, the web page interaction information, for instance, on column 7, a following device, such a guest device, this is at line 8, may be defined as any device that receives relayed web page interactions from a synchronization server. So this isn't saying an actual movie or a music or a text document is being transferred from the host device through the synchronization server.

[00:08:29] Speaker 00:
to the guest device.

[00:08:31] Speaker 00:
And that language doesn't appear here. Activated is different. And activated is used elsewhere in the specification to describe clicking on a link. Column 21, lines 12 through 13, clicked or activated. 1255, column 12, line 55, activation hyperlink is clicked or activated by host device. So it's unfair to read activated to mean downloaded and transferred.

[00:08:59] Speaker 01:
Does your construction of web browsing interaction data limit it to what's disclosed as item 64 and figure 5A?

[00:09:08] Speaker 00:
It describes what's in, it doesn't, I wouldn't say limit it. I would say it describes what is shown in communication 64, message 64.

[00:09:18] Speaker 01:
But it would exclude everything else that's described or depicted in figure 5A, correct? None of those under your construction could be the web browsing interaction data?

[00:09:29] Speaker 00:
No, because 64 is the only message that's being sent from the synchronization server to the guest device.

[00:09:36] Speaker 01:
So...

[00:09:38] Speaker 01:
I mean, it seems to me, and this is my concern with your position, the claims have a very broad term, web browsing interaction data. That term never appears in the specification anywhere, correct?

[00:09:51] Speaker 00:
That exact term does not, Your Honor.

[00:09:53] Speaker 01:
And it seems like your argument is, nonetheless, there's something about this specification that would tell one of skill and the art, that it's essentially limited to what's depicted as item 64 in figure 5A. And I don't see what it is that gets one of skill in the art to that conclusion. Can you help me?

[00:10:14] Speaker 00:
So the specification, well, the claim talks about or is limited to a synchronized browsing session. So this is a session where both the host device and the guest device see the same thing at the same time.

[00:10:31] Speaker 01:
And both can make changes or act on what they're seeing jointly, correct?

[00:10:36] Speaker 00:
Both can interact with pages, correct. But in the claim, we're limited to the host device's interactions because the claim requires that the web browsing interaction data be associated with the host device that has initiated the session invitation? So it's speaking to one side of the pair at this moment in that as far as the claim is concerned. But yes, either side can control.

[00:11:10] Speaker 00:
I would argue then that if one side is controlling, then it's the host device. And then when the other side controls, it becomes like a host device.

[00:11:20] Speaker 00:
And they shift.

[00:11:22] Speaker 01:
But in any event, what would tell one to skill in the art to exclude from the broad claim term web browsing interaction data, for example, the stuff or the data that's being sent back from the web itself?

[00:11:37] Speaker 00:
Because web browsing interactions are interactions that happen and they're performed by one of the two devices. In the spec that talks in the part in column 7, I'm sorry, in column 3 that I was referring to describing the present invention, describes the information related to shared web browsing interactions being performed by a host device, received by the guest device from the synchronization server, and then the guest device then performs that same shared web browsing interaction based on the received information.

[00:12:15] Speaker 03:
So if this was so clear, why didn't you have your expert say what you're saying?

[00:12:19] Speaker 00:
He did. It's just not in the record. It's not in your record.

[00:12:23] Speaker 03:
It wasn't important enough to include it.

[00:12:25] Speaker 00:
Well, I mean, the problem is the board accepted what he said in the sense that they agreed, if you read it 38 and 39 of the appendix, they agreed with what he said. They agreed he described it correctly.

[00:12:41] Speaker 00:
They just were afraid that they were going to be, by reading...

[00:12:46] Speaker 00:
accepting the construction that SAMSURF was proposing, it would exclude these other embodiments that the only place they found it at was in column 8 that we discussed already. And had there not been a column 8 and had the expert On the other side, not said the ordinary meaning is data related to, and that's so broad. I mean, the problem here, too, is the construction is so broad, it's referring to web pages themselves, not even the partially filled web pages.

[00:13:17] Speaker 00:
There's no way a web page can be sent from a synchronization server to a guest device, where then that guest device has to do something else to access the website. If it has the web page, no more steps are required. But this claim requires yet another step using the interaction data.

[00:13:38] Speaker 02:
You didn't appeal the IPR decision for the 591 patent, is that right? That's correct.

[00:13:47] Speaker 02:
That claim looks really close to the claim we're talking about right now. Is there a reason why you would appeal one and not the other?

[00:13:57] Speaker 00:
There was a very clear disclosure in LeBron of a URL and a cookie. Remember the claim in 591 was specific about URLs and cookies. And so that was concerning.

[00:14:13] Speaker 00:
Okay.

[00:14:15] Speaker 02:
If we end up construing web browsing interaction data broadly like the board did, are the claims here essentially the same as the claims in the 591 patent?

[00:14:31] Speaker 00:
No, they're not. I mean, in terms of collateral estoppel, is that the question? Yeah.

[00:14:36] Speaker 00:
In terms of Klaus Hoppel, no, because the test is whether the differences between the claims make the issue of validity meaningful. Is there some meaningful difference among the claims to make that issue meaningful? And here it does, because we've got web browsing interaction data in one claim. We've got URL and cookie in the other. And we have a significant, we're here talking about claim construction. That's the first step of validity. So none of those cases cited ever dealt with this issue where one claim has a significant claim construction issue and the other doesn't.

[00:15:15] Speaker 00:
In those cases, the claims were so similar that the court just found that they were too similar to be different enough for invalidity purposes, so there's collateral stoppage.

[00:15:28] Speaker 01:
I think here you concede that if we adopt the board's construction, we should affirm that these claims are correct. Yes, we do, Your Honor. That's correct.

[00:15:39] Speaker 03:
Okay, we're out of time. We'll give you two minutes for rebuttal.

[00:15:41] Speaker 01:
Thank you.

[00:15:42] Speaker 03:
Mr. Sackstetter.

[00:15:49] Speaker 04:
Good afternoon, Your Honors. Michael Sackstetter of Fenwick and West on behalf of...

[00:15:55] Speaker 04:
appellee in this case into it.

[00:15:58] Speaker 04:
May it please the court.

[00:16:01] Speaker 04:
The first thing I'd like to address is what the board did. I understand the claim construction is a de novo question, but the board did not start with Dr. Lieberman's opinion and then go on to the intrinsic record. There was almost 20 pages in the board's opinion of that starts with the claim language. The first place where it references Dr. Lieberman is discussing how he views the claim language in connection with the other dependent claims.

[00:16:35] Speaker 04:
goes through that entire discussion, and then talks about the specification, then has a section called plain meaning, and eventually comes to the conclusion, as Dr. Lieberman did as well, that the construction should be the one that Intuit advanced, and that that was a correct determination. In this case, as the court has noted, that very similar language to this appears in the specification. It appears in claims of other patents with the same specification.

[00:17:10] Speaker 04:
And there is no reason to limit the use of web browsing interaction data in the claims of the 145 patent.

[00:17:18] Speaker 04:
to the very narrow construction that is asserted by SAMSURF in this case.

[00:17:25] Speaker 04:
The construction, I think at one point in the blue brief, SAMSURF says that the specification specifies intrinsically, or I think that's what it says, specifies by implication that that this should be the construction. I don't think that's good enough under this court's precedence, that there has to be some kind of a disclaimer of claim scope or there has to be some kind of the patentee acting as its own lexicographer, and I don't think that happened.

[00:17:58] Speaker 01:
The claim term is web browsing interaction data. What different scope would it have if interaction did not appear? Sure. That is, it seems like your construction is really a construction of web browsing data, and therefore too broad.

[00:18:16] Speaker 04:
I think that they're very close to the same. I think that the interactions that the host device and the guest device, in this case, perform on with regard to the web server are part of the interaction data, and that needs to be sent as well.

[00:18:35] Speaker 03:
But that's not a limitation. Data has to be the result of the interaction.

[00:18:39] Speaker 04:
That's correct.

[00:18:41] Speaker 04:
But the interaction causes information from the web server to be sent to the host device, to be sent to the guest device.

[00:18:50] Speaker 01:
And so I don't think that's... In this art, would one of Skill in the Art understand web browsing data to be broader somehow, and if so, help me understand how, than web browsing interaction data?

[00:19:03] Speaker 04:
I don't think that web browsing data is as specific... It could relate to all kinds of things.

[00:19:12] Speaker 03:
It doesn't have to be the result of the interaction.

[00:19:15] Speaker 04:
I'm sorry?

[00:19:16] Speaker 03:
It doesn't have to be the result of the interaction.

[00:19:18] Speaker 04:
I think that's correct, but I don't think that we're arguing anything different.

[00:19:22] Speaker 01:
What's confusing me, I guess, is your construction, which was the board's construction of web browsing interaction data, is not limited to the results of the interaction. It also includes what the host device is sending to the web browser, correct? It does.

[00:19:40] Speaker 01:
So, again, I'm just struggling to understand, and maybe the word interaction isn't doing anything in this claim, but if you have a view as to what it's doing and how web browsing interaction data is narrower than web browsing data, I just would like to understand.

[00:19:56] Speaker 04:
It includes the data that is exchanged one way and another between the host and the website server.

[00:20:07] Speaker 01:
I'm just struggling to see what you're saying, the meaning of what interaction is doing. How is interaction narrowing this claim scope under your understanding of it?

[00:20:19] Speaker 04:
Well, I think it's related to the interaction. It has to be.

[00:20:24] Speaker 04:
But that includes what gets sent back. It includes, for instance, there's an embodiment in LeBron that talks about partial website data that comes back. There are some pointers to go out to a website server and and receive images, sound files, things like that as a more efficient embodiment. That's part of website interaction data. So if the host asks for it, gets that back, that gets sent to the guest device, then that's part of the website interaction.

[00:21:00] Speaker 01:
Let me ask you this. It may be related. But as I understood the proposed construction from SameServe, For web, for our claim term here, it was data describing interactions performed on a website by a host device. What's wrong with that construction? I recognize they go on to say, and it excludes a couple other things, but put aside those exclusions. If I just stopped at data describing interactions performed on a website by a host device, is that wrong?

[00:21:30] Speaker 04:
I don't think it's sufficiently inclusive because it doesn't include what gets returned by the website server.

[00:21:42] Speaker 04:
For instance, the references to images, things like that.

[00:21:46] Speaker 01:
Because it's talking about performed on the website, I guess. That might be read as excluding what is sent back from the website. Correct. Is that the concern?

[00:21:54] UNKNOWN:
Okay.

[00:21:56] Speaker 02:
The patent owner has another argument, I think, and it's a about the logic and structure of the claim itself, that it does not make sense for web browsing interaction data to include the web page because guess what? The claim keeps going and says the guest device takes that web browsing interaction data to go directly request the web page itself from the website.

[00:22:29] Speaker 02:
which will then send the web page back to the guest device. So why in the world are we going to jam the web page into web browsing interaction data up front?

[00:22:40] Speaker 02:
In other words, to adopt the board's construction gives really no work to do for the final limitation in this method performed by the guest device.

[00:22:52] Speaker 04:
That's what happens with the partial website embodiment in LeBron, where the host device sends via the synchronization server instructions that may include some things that are necessary and sufficient to render a web page, but there's also instructions to go out to a website server and obtain additional information.

[00:23:23] Speaker 02:
So then are you modifying the board's construction such that it doesn't truly encompass the results of a web browsing interaction, only just the partial results?

[00:23:40] Speaker 04:
The board's construction is what it is. I'm saying this is one way that it could address Your Honor's question, where if information is returned, if there's nothing else to do and there's a website returned, that... had presented an issue with the later portion of the claim.

[00:24:01] Speaker 04:
But it does not do that in the instance of, for instance, a partial website as is disclosed in LeBron.

[00:24:11] Speaker 02:
Does LeBron explain why it bothers to give the partial version of the webpage to the guest devices?

[00:24:21] Speaker 04:
It does, Your Honor. It says that it's a matter of efficiency. I think that's at page 1627 of the appendix where it's talking about making it more efficient in terms of bandwidth and so forth. So you don't have to send, if there are large files, image files, sound files that are part of the web page, they don't have to be sent through the internal system to the guest device.

[00:24:52] Speaker 04:
So if the court were to adopt, as was discussed a little bit, if the court were to adopt same-service proposed construction, as I think was pointed out, the claims of the 591 patent are actually narrower. than the claims of the 145.

[00:25:14] Speaker 04:
They have specific references to a URL and cookie information. That is something that would be, I think there's no dispute, would be encompassed within anybody's construction of website information.

[00:25:30] Speaker 04:
web browsing interaction data.

[00:25:32] Speaker 04:
And that is something that SAMSURF has now relinquished an argument on. So even if they get this construction, they had the chance to litigate it for a narrower claim, and they didn't do it. And so they are collaterally a stop from raising the issue here.

[00:25:54] Speaker 04:
Thank you, Your Honor.

[00:25:57] Speaker 03:
Mr. Block, you have two minutes.

[00:26:02] Speaker 00:
So, Your Honor, Judge Stark, in response to your question about interaction, it is carrying a lot of weight, and it makes a big difference because, as you said, without it, web browsing data would just be, you know, the web data itself, web browsing interaction data. Now, that's data that describes that interaction, clicking a link. The computer has to translate that to computer code to speak to other computers. The user's requested a link. Here's how to do it. Go sends that to the website.

[00:26:33] Speaker 00:
Website gets, but also sends that communication, that information that describes the interaction to the sync server that then relays it to the guest device so that they too can replicate that same interaction.

[00:26:49] Speaker 00:
It's not about how you see the same web page at the same time. It's because both sides are replicating the same interaction. A web page is not being sent because a web page itself is not the interaction. It's the result of the interaction. There's a difference. And the problem, the question about the web pages in LeBron and the partial web page, LeBron also disclosed full web pages, ones that don't have the multimedia. Those are within this very broad construction we got from the board, yet that wouldn't meet the claim because In that instance, the guest device, like you said, Judge Chen, has nothing to do.

[00:27:32] Speaker 00:
It's got the webpage. So there's a flaw here in this construction. It's too broad. It's not describing what was the invention and ultimately what was claimed. Now, about the differences between the claims in the 145 patent and the 591 patent, there are other differences to consider that are relevant. So in the page 34 of the brief, of the red brief, There's a table showing the two claims side by side. In the second row of claim one of the 145 requires receiving from the synchronization server a session invitation.

[00:28:09] Speaker 00:
You don't see that limitation on the 591 side from the synchronization server, that invitation. That's relevant because you're going to talk about it in the next case.

[00:28:19] Speaker 02:
Dependent claim two has that receiving limitation.

[00:28:21] Speaker 00:
Not from the synchronization server.

[00:28:25] Speaker 00:
And then in the...

[00:28:28] Speaker 00:
Page 36, the last element of both claims, one's talking about the 145 operating the application to access a website server independent of the synchronization server subsequent to the activation of the invitation. That's not at all present in the 591 claim, which just requires operating a browser based on the data received.

[00:28:51] Speaker 03:
Okay.

[00:28:51] Speaker 00:
Thank you. Thank you.