[00:00:00] Speaker 02:
OK, our first case this morning is number 241499, WSOU Investments LLC versus Google LLC, Mr. Abraham.

[00:00:11] Speaker 00:
Thank you.

[00:00:11] Speaker 00:
Good morning, and may it please the court?

[00:00:14] Speaker 00:
There are several key errors underlying the district court's judgment below.

[00:00:18] Speaker 00:
It's both procedurally and substantively flawed.

[00:00:21] Speaker 00:
The procedural error arises from the district court having taken up Google's claim interpretation arguments for the very first time on a Rule 50A motion following the close of WSU Brazos' case in chief, after all the evidence was in.

[00:00:36] Speaker 00:
In terms of the substantive flaws, the district court's order has three distinct flaws incorporated therein.

[00:00:43] Speaker 00:
First, there is the ruling that the asserted claim, the asserted method claim, these steps must be performed in the order of drafting.

[00:00:50] Speaker 00:
The second error

[00:00:51] Speaker 00:
relates to the district court's premise that the claim must be interpreted from the perspective of the mobile handset user and cannot be viewed from the perspective of the service provider's servers.

[00:01:05] Speaker 00:
That's an implicit incorporation within the district court's order in that the district court expressly says it's just talking about order of steps, but it cannot be read without also taking into account that it's ignoring the server side view.

[00:01:19] Speaker 00:
And then the third substantive error within the district court's order relates to, without any substantive analysis, just conclusorily deciding that the apparatus claim works exactly the same as the method claim and that the same order of steps should apply.

[00:01:35] Speaker 03:
Do you agree, counsel, that Google's non-infringement argument also hinges just on the plain language of the claims themselves?

[00:01:48] Speaker 00:
I don't know that I would completely agree with that in that the presumption under law, under Alturas, is that the order of steps need not be performed in order.

[00:01:59] Speaker 00:
And so if you're going to depart from that presumption, that is a claim construction.

[00:02:03] Speaker 00:
We think that's what happened here.

[00:02:05] Speaker 00:
The district court says that it was performing claim construction.

[00:02:09] Speaker 00:
Now, the first.

[00:02:10] Speaker 04:
So what case law do you have from the Federal Circuit to support the proposition that, in this case, the district court judge abused his discretion by considering claim construction at the 58-time period?

[00:02:28] Speaker 04:
Like, under O2 micro, a district court judge has an obligation

[00:02:34] Speaker 04:
to construe the claims.

[00:02:35] Speaker 04:
So once there's a dispute, that's apparent.

[00:02:39] Speaker 04:
So what case law says that a district court judge, I mean, I understand the unfortunate

[00:02:45] Speaker 04:
circumstances of the timing of the claim construction.

[00:02:49] Speaker 04:
But I don't think we've said that there's a particular time by which a district court has to interpret claims as a matter of law.

[00:02:57] Speaker 00:
So I think I do agree with the premise of that question.

[00:03:00] Speaker 00:
But what I would say is that when you read the Kaufman and the pressure products decisions together, what that says is that whenever the district court is making a claim construction determination at a late stage,

[00:03:12] Speaker 00:
It needs to be at the point when the party that is essentially adversely affected by the claim determination has the opportunity to incorporate those findings and present its case accordingly.

[00:03:22] Speaker 02:
Well, but I mean, the Cytologics case said that claim construction could even come later than it did here after the close of all the evidence, right?

[00:03:31] Speaker 00:
I think Cytologics involved the agreement of the parties to postpone claim construction all the way to the end.

[00:03:37] Speaker 00:
And that's just so very distinguishable here.

[00:03:40] Speaker 00:
And I actually would say that Cytologics should be read to say that there was concern, extreme concern, expressed by the court that doing it at that late date after all the evidence was in was problematic.

[00:03:50] Speaker 02:
We had notice of the contention, of Google's contention anyway.

[00:03:54] Speaker 02:
It was in the expert report.

[00:03:56] Speaker 02:
They said that it didn't infringe because it wasn't done in order, right?

[00:04:00] Speaker 00:
Well, they said a lot of things in that expert report.

[00:04:02] Speaker 00:
They did say that, right?

[00:04:04] Speaker 00:
It is in there.

[00:04:04] Speaker 00:
But again, never raise to the court.

[00:04:06] Speaker 00:
And we never got the chance, because Dr. Welch never was called to testify, to object and say that he's delivering an opinion that does not comply with the court's claim construction.

[00:04:15] Speaker 00:
And he shouldn't be allowed to deliver that testimony.

[00:04:17] Speaker 04:
What was the court's claim construction?

[00:04:19] Speaker 04:
prior to that time.

[00:04:20] Speaker 00:
There was no construction as to the order.

[00:04:22] Speaker 04:
The claim was not important with the claim construction.

[00:04:25] Speaker 00:
Well, okay, because that's where we get back to the presumption.

[00:04:28] Speaker 00:
The presumption under Alterus and interactive gifts is that the steps of the method need not be performed in order.

[00:04:34] Speaker 00:
And there was nothing in the record that said that they had to be performed in order.

[00:04:37] Speaker 00:
Therefore,

[00:04:38] Speaker 00:
When Dr. Welch said it did, that is arguably a departure that requires a claim construction finding.

[00:04:44] Speaker 00:
And in the advocacy.

[00:04:45] Speaker 03:
Did you ever contemplate counsel asking for a claim construction that they do not need to be performed in a specific order?

[00:04:52] Speaker 00:
It was not.

[00:04:53] Speaker 00:
Again, we contemplated it.

[00:04:56] Speaker 00:
It was never brought to the floor until we got to the Rule 50A stage following the close of evidence, following everything that we had put in.

[00:05:03] Speaker 03:
But you did disagree with Judge Steink that at least you

[00:05:07] Speaker 03:
would have been aware, based off of the Google expert report, that that was one of the contentions.

[00:05:12] Speaker 00:
Again, expert reports contain lots of things, and they do not necessarily all come in at trial.

[00:05:17] Speaker 00:
So could we have done that?

[00:05:19] Speaker 00:
Yes, we could have done that.

[00:05:20] Speaker 00:
But at the end of the day, the real flaw here is that it was not until after all of the evidence was in, in response to an unconstrued term in which we did not

[00:05:34] Speaker 00:
have any obligation to adopt Google's reading of the claim until once we were committed, only then did Google decide that this was something that it was going to put in front of the court and raise as a non-infringement argument.

[00:05:46] Speaker 00:
Until then, they raised it.

[00:05:47] Speaker 02:
They didn't raise it.

[00:05:48] Speaker 02:
Even in the 50A motion, they didn't raise it as a fine construction issue.

[00:05:52] Speaker 00:
Right.

[00:05:53] Speaker 00:
Well, I think the reason they didn't raise it as a claim of instruction issue is because they realized the potentially problematic nature of having done it so late in the case.

[00:06:01] Speaker 00:
They said expressly it wasn't claim of instruction, but then they did it.

[00:06:03] Speaker 02:
They raised it the same way they did in the expert report, that under plan and ordinary meaning, it had to be performed in order.

[00:06:09] Speaker 02:
Right?

[00:06:11] Speaker 00:
I would say that is correct.

[00:06:12] Speaker 00:
But again, that was not in evidence up to that point.

[00:06:17] Speaker 00:
let me if you don't mind i'd like to go to the substantive aspect here which because because the issue there is that

[00:06:25] Speaker 00:
we think that the district court, again, is wrong in construing the claim that the method needs to be performed in order, both as a matter of plain language and as a matter of doing – if there is any ambiguity that the steps do not need to be performed in order, then the specification is very clear that it says that they can be performed in any order.

[00:06:41] Speaker 00:
And, you know, there's exemplary embodiments, but it's not a question of this is the one and only way to perform the method.

[00:06:49] Speaker 00:
The other issue is that, so that would be the strict order of steps issue, but then there's the user versus server issue because, sure.

[00:06:56] Speaker 03:
Before you go to that user versus server issue, you agree though that steps 1A and 1B need to be performed in that specific order.

[00:07:04] Speaker 00:
We do.

[00:07:05] Speaker 03:
So it's just that you don't agree with the subsequent steps after we need to be in a certain order?

[00:07:10] Speaker 00:
So this is, I think, a good transition to the user versus server issue in that Google's conception seems to be that you look at this claim from the perspective of the mobile device user who has a daily routine and encounters a certain set of signal sources based on which stationary states and primary stationary states are determined and in response to

[00:07:33] Speaker 00:
a background determination of the primary stationary state's services may be delivered.

[00:07:39] Speaker 00:
They think it just goes one, two, three, four, five based on the phone that you're carrying around in your pocket.

[00:07:43] Speaker 00:
The issue is that if you go to the server point of view, even if there is an order of steps required under the method,

[00:07:50] Speaker 00:
The proof was there was sufficient proof in the record, especially under the very demanding Rule 58, no reasonable jury standard, to say that Google itself does perform the method in order, because it's an iterative invention.

[00:08:05] Speaker 00:
It's the claim language itself specifically.

[00:08:07] Speaker 02:
You conceded at the oral argument on the Rule 58 motion that if you looked at a single user, there was no evidence that it was performed in order, right?

[00:08:17] Speaker 00:
Specifically as to if you have to look at the claim from the perspective of the single user in a single transaction, yes, we did concede that.

[00:08:23] Speaker 00:
But again, we think that is a very overly narrow reading of what the invention actually claims.

[00:08:29] Speaker 00:
The invention very clearly contemplates server-based implementation, and the claim language speaks in terms of iterative behavior in that.

[00:08:38] Speaker 02:
What does that mean?

[00:08:40] Speaker 02:
Because the server involves multiple users that some

[00:08:46] Speaker 02:
Some users are performing one step, other users are performing another step.

[00:08:51] Speaker 02:
Is that the theory?

[00:08:52] Speaker 02:
I say Google is performing.

[00:08:55] Speaker 02:
Is that the theory?

[00:08:56] Speaker 00:
The users aren't performing the steps.

[00:08:58] Speaker 00:
Google is performing the steps.

[00:08:59] Speaker 02:
Google is performing the steps.

[00:09:01] Speaker 02:
If you consider multiple users, they might be performing step one with respect to user A and step B or step two with respect to

[00:09:12] Speaker 02:
user B right?

[00:09:14] Speaker 02:
That's the theory.

[00:09:15] Speaker 00:
That is part of the theory.

[00:09:16] Speaker 00:
The other part would be that even as to user A or B, Google performs the method over and over and over again as that user continues to move throughout the world and encounter signal sources and

[00:09:27] Speaker 00:
and encounter different stationary states.

[00:09:29] Speaker 04:
Of course, that theory of infringement would have had to have been presented to the jury, right?

[00:09:36] Speaker 04:
So I think you've got testimony of Dr. Budhavari that you're primarily relying on for saying that even under the district court's construction, Google would infringe.

[00:09:50] Speaker 04:
Is that correct?

[00:09:51] Speaker 04:
You've got?

[00:09:52] Speaker 04:
Is that what you're relying on?

[00:09:53] Speaker 00:
There's a couple of different things.

[00:09:55] Speaker 00:
We are certainly relying on Dr. Budivari for evidence.

[00:09:57] Speaker 04:
That's what we have to look at to see whether there's substantial evidence, correct?

[00:10:01] Speaker 04:
We have to look at the evidence you've identified that was presented to the jury.

[00:10:04] Speaker 00:
And we would say that's in there.

[00:10:06] Speaker 00:
I don't think there's any question that that theory of the case was presented via Dr. Budivari's testimony.

[00:10:11] Speaker 00:
Again, there's no – there's nothing in Dr. Budavari's testimony that limits it to a – Well, I looked at Mr. Budavari's testimony.

[00:10:18] Speaker 04:
I'm having a hard time seeing where there's a discussion of the sequence of order of the steps.

[00:10:24] Speaker 04:
So I'm just letting you know in case you want to walk through it.

[00:10:26] Speaker 00:
Sure.

[00:10:27] Speaker 00:
Again, that's because Dr. Budavari's testimony goes to the iterative nature of the invention, which all these things happen.

[00:10:35] Speaker 00:
Multiple claim limitations speak to the plurality of different times.

[00:10:38] Speaker 00:
We speak to the frequently

[00:10:40] Speaker 00:
And so I think necessarily by putting in evidence that goes to those claim limitations, it speaks to the fact that the invention, the infringing method is being performed by Google repeatedly.

[00:10:52] Speaker 00:
And it is that repetition that in turn causes the order of method steps to have been performed by Google.

[00:11:01] Speaker 03:
Can you answer Judge Stoll's question, though, and point us to specific testimony that you think would actually address the order of steps?

[00:11:09] Speaker 00:
Again, I would say because that was not an issue that had ever been highlighted, it was not something where he said specifically, but I, but.

[00:11:16] Speaker 03:
Okay, so there's no testimony to point us to on that front, is what you would agree to, right?

[00:11:21] Speaker 00:
I would agree that there's no testimony where he expressly says A follows, B follows A, C follows B, because at the end of the day,

[00:11:28] Speaker 00:
A, we didn't need to, and B, he speaks to the iterative nature of the invention, and it is the... But even if there isn't something like that... I'm sorry?

[00:11:35] Speaker 04:
You should be able to piece it together for me here.

[00:11:39] Speaker 04:
Even if there isn't something that says step one, followed by step two, followed by step three, can you explain it to me?

[00:11:46] Speaker 04:
Like, through the testimony, how it is that I would understand that these steps were performed sequentially.

[00:11:58] Speaker 00:
It's a good question, Your Honor.

[00:12:03] Speaker 00:
I think I would say it is inherent in his testimony.

[00:12:06] Speaker 00:
We walked through the method in essentially chronological order of steps.

[00:12:11] Speaker 00:
And there's nothing to say in the manner in which he delivered his testimony that it wasn't performed in order.

[00:12:15] Speaker 00:
Again, we rely on the iterative nature of the invention as performed by Google in order to establish.

[00:12:21] Speaker 04:
I just thought that it would be helpful for you in this case if you could walk me through the testimony to support the things that you're saying.

[00:12:29] Speaker 00:
I agree.

[00:12:30] Speaker 00:
It would be very helpful.

[00:12:31] Speaker 00:
But again, that speaks to the nature of this issue having been raised in a essentially post-close of the case in chief point in time.

[00:12:38] Speaker 00:
Because if it had been something that we thought was going to be an issue for the court, then we certainly would have made sure that that was something more highlighted and accurate.

[00:12:45] Speaker 04:
And you didn't know it would be an issue from the experts report?

[00:12:48] Speaker 00:
Again, experts say.

[00:12:50] Speaker 04:
I understand.

[00:12:52] Speaker 04:
But that seems to be a non-imprintment theory that was set forth.

[00:12:57] Speaker 04:
So I don't understand why you wouldn't think that was an important aspect.

[00:13:02] Speaker 00:
And again, I don't want to belabor it, but again, it's a non-infringement theory that we thought was inconsistent with the plain and ordinary meaning.

[00:13:08] Speaker 00:
And so we would have had the right to keep it out and have it never come in front of the jury.

[00:13:13] Speaker 02:
I suppose you could have asked when the Rule 58 motion was filed and the court adopted a claim construction to be able to supplement your testimony, right?

[00:13:23] Speaker 00:
We certainly could have, but at that point, the court had entered judgment and non-infringement based on the evidence that had gone in.

[00:13:29] Speaker 00:
And at that point, we could have asked for reconsideration, but we decided we would prefer to come up on appeal.

[00:13:36] Speaker 00:
So at this point, given where the clock is, I think I'm going to reserve the balance of my time.

[00:13:40] Speaker 00:
So thank you.

[00:13:44] Speaker 02:
Mr. Maragosi?

[00:13:49] Speaker 01:
Good morning, Your Honor.

[00:13:50] Speaker 01:
May it please the Court.

[00:13:51] Speaker 01:
The judgment of non-infringement should be affirmed on multiple independent grounds.

[00:13:57] Speaker 01:
First, the District Court correctly held that WSU's case was devoid of any evidence

[00:14:03] Speaker 01:
that Google performs the recited steps in the claim sequence.

[00:14:07] Speaker 01:
Second, the alternative grounds for affirmance in Google's response brief establish that regardless of any sequential order, WSOU has a key.

[00:14:16] Speaker 03:
Can you speak up?

[00:14:18] Speaker 03:
Could you speak up?

[00:14:18] Speaker 01:
Oh, I'm so sorry.

[00:14:19] Speaker 03:
Yeah, I apologize, Your Honor.

[00:14:23] Speaker 01:
Second, the alternative grounds for affirmance in Google's response establish that regardless of any sequential order, WSOU has a failure of proof on numerous limitations, including the current time requirements and steps BMC.

[00:14:40] Speaker 01:
And I'm going to ask you to speak up again.

[00:14:43] Speaker 01:
Really?

[00:14:43] Speaker 01:
OK.

[00:14:46] Speaker 01:
I apologize.

[00:14:46] Speaker 01:
That there is a failure of proof with respect to the steps

[00:14:51] Speaker 01:
C, with respect to the requirement for current time in step C and B, and the requirements for step D. Third, WSOU's brief, reply brief, concedes that step E must occur after step A and B. This also supports

[00:15:13] Speaker 01:
an affirmance, because this concession shows that WSOU was aware that there was at least some sequential order required in the claims under which WSOU failed to provide any proof.

[00:15:26] Speaker 01:
WSOU's expert, Dr. Budavari, never explained, never detailed, never showed how Google performed step E after steps A and B.

[00:15:38] Speaker 01:
WSU's expert also failed to show that the location history, which WSU relies on as the signal data in steps A and B, has any relation to the delivered services in step E. And this speaks to the questions earlier.

[00:15:54] Speaker 01:
We asked WSU's expert, you didn't show the jury any evidence that their location history leads to any ads

[00:16:03] Speaker 01:
And the answer was, quote, I didn't.

[00:16:05] Speaker 01:
That's at appendix 14517.

[00:16:07] Speaker 01:
This failure of proof is also true for the other services identified by WSOU.

[00:16:14] Speaker 01:
And two more points, Your Honor.

[00:16:16] Speaker 03:
Before you go to those two other points, what is your direct response to opposing counsel's argument that

[00:16:24] Speaker 03:
there was a construction in terms of this order of steps that happened at the 58th stage, and that that was essentially, I think they're arguing, too late.

[00:16:33] Speaker 01:
Your Honor, it was not too late.

[00:16:35] Speaker 01:
And a couple of points there.

[00:16:36] Speaker 01:
First, as the district court noted at appendix 11 and as this court pointed out, WSU was fully aware and had full notice of Google's position that infringement requires performing the recited steps in sequential order.

[00:16:51] Speaker 01:
Dr. Welch's report explained this repeatedly and in detail, and the citations for that, the citations to his report are at the red brief 2, 8, and 41.

[00:17:06] Speaker 01:
So WSU had full notice.

[00:17:08] Speaker 01:
They were fully aware of Google's position.

[00:17:10] Speaker 01:
And in fact, today, or in their briefing, even now, WSU admits that there are certain sequential steps that are required by the claims.

[00:17:20] Speaker 01:
Your Honor, we heard something about the perspective from the server or the client.

[00:17:25] Speaker 01:
Regardless of perspective and regardless of sequencing, WSOU's expert also failed to show that the recited mobile device in step E that receives or to which a service is delivered is the same device that's recited in step A and step B. There again is a failure of proof.

[00:17:44] Speaker 01:
The most that WSU's expert could say was that the devices could be the same and that there may be many mobile devices.

[00:17:52] Speaker 01:
That's Appendix 14547.

[00:17:55] Speaker 01:
And one last point, Your Honors.

[00:17:58] Speaker 01:
This aggregate theory or iteration theory, that's pure attorney argument.

[00:18:03] Speaker 01:
It was never raised in any evidentiary form to the jury.

[00:18:07] Speaker 01:
It was not presented to the jury.

[00:18:09] Speaker 04:
And... Was it in an expert report?

[00:18:12] Speaker 01:
It's unclear.

[00:18:13] Speaker 01:
It may have been, but it was not presented to the jury.

[00:18:18] Speaker 01:
It's not evidence that was in the record.

[00:18:20] Speaker 01:
But we did ask their expert whether he showed that the recited steps are connected together

[00:18:33] Speaker 01:
in Google's products.

[00:18:35] Speaker 01:
And his answer was, I didn't do a complete analysis.

[00:18:39] Speaker 01:
Appendix 1-4-5-2-L.

[00:18:40] Speaker 01:
I'm sorry, Your Honor.

[00:18:42] Speaker 01:
That's all right.

[00:18:43] Speaker 04:
What I was going to ask was, when did it become apparent that there was a dispute between the parties as the plain meaning of the claim language, specifically whether some of the steps had to be performed in a certain sequence?

[00:18:57] Speaker 01:
So let me answer it temporally.

[00:18:59] Speaker 01:
When we got, when Google received WSU's infringement report, it was unclear what infringement theory, whether the infringement theory required performing the steps in sequence or not.

[00:19:09] Speaker 01:
We submitted a rebuttal report.

[00:19:11] Speaker 01:
It was not clear to us that they would rely on an infringement theory where the steps did not need to be performed in order until their case in chief, where they did not, they failed to show any sequence of steps performed by Google.

[00:19:26] Speaker 01:
So if there's no further questions, Your Honor, I will get back to court.

[00:19:29] Speaker 01:
It's time.

[00:19:31] Speaker 01:
OK.

[00:19:31] Speaker 02:
Thank you, Your Honor.

[00:19:35] Speaker 02:
Mr. Abraham.

[00:19:39] Speaker 00:
I'll be as brief as I can in responding to those many points.

[00:19:43] Speaker 00:
We'll go in reverse order.

[00:19:45] Speaker 00:
In terms of the many users over time, it's clearly contemplated by the patent.

[00:19:50] Speaker 00:
We cite that at the blue brief pages 13 to 15, citing

[00:19:55] Speaker 00:
Column 19, reasonable numbers of servers can service a large number of location context users.

[00:20:01] Speaker 00:
Those are the handsets.

[00:20:03] Speaker 00:
In terms of the aggregation iteration theory not being cleanly presented again until after the close of evidence was in and it became clear that someone cared about the order of steps enough to raise it to the court, that was not something that we needed to put in expressly under what we understood the claim language to mean.

[00:20:21] Speaker 00:
At that point, yes, we then presented it.

[00:20:24] Speaker 00:
But as far as we're concerned, there's enough there in Dr. Budavari's testimony to support it.

[00:20:29] Speaker 00:
Again, the issue of the A versus B antecedent basis argument that Google raises, that again ties in with the aggregation iteration theory.

[00:20:37] Speaker 00:
The point is that all of the B's refer back to the one or more handsets with respect to which Google performs the claim over and over and over again.

[00:20:49] Speaker 00:
Other than that,

[00:20:50] Speaker 00:
Google's counsel highlights the fact that the district court says we were unnoticed.

[00:20:56] Speaker 00:
The district court had no way of noting that.

[00:20:58] Speaker 00:
There is no citation in the district court's order, and that's because it was only in an expert report that the district court never saw.

[00:21:05] Speaker 00:
There was never any presentation of Google's theory of non-inference based on the order of the steps until the Rule 50A motion.

[00:21:13] Speaker 00:
That's the first time the court knew about it, the first time we thought the court knew enough to care about it.

[00:21:18] Speaker 02:
Okay.

[00:21:18] Speaker 02:
Thank you, Mr. Emmer.

[00:21:19] Speaker 02:
Thank you.