[00:00:12] Speaker 02: Final case for argument is 141266, alcohol monitoring systems versus VI Incorporated. [00:00:49] Speaker 04: I'd like to start with the 611 patent first. [00:01:00] Speaker 04: The issue in that case, or in that patent, is whether an alert should be read into the message limitation to limit message to a specific type of message. [00:01:14] Speaker 04: summary judgment depends upon narrowing the broad message limitation to a specific kind of message, an alert message. [00:01:21] Speaker 04: As shown in AMS's brief, limiting the claimed message to an alert message was error. [00:01:28] Speaker 04: Rather than addressing the proper construction of the message, BI argues waiver precludes AMS from challenging the district court's sua sponte narrowing of the message limitation. [00:01:39] Speaker 04: B.I. [00:01:40] Speaker 04: in its group represented, A.M.S. [00:01:43] Speaker 04: conjured a new meaning for the word message. [00:01:45] Speaker 04: That's not true. [00:01:48] Speaker 04: While message was not the direct subject of claim construction, A.M.S. [00:01:52] Speaker 04: made its position on message absolutely clear and B.I. [00:01:55] Speaker 04: appeared to acquiesce. [00:01:57] Speaker 01: I believe their argument about waiver focuses, it seems to me in this case, on Claim 7 and the fact that Claim 7 wasn't separately argued. [00:02:08] Speaker 01: And Claim 7, unlike Claim 1, doesn't require the same device to do all of the various [00:02:16] Speaker 01: required function. [00:02:18] Speaker 01: Am I understanding that right? [00:02:20] Speaker 04: I think they tried to say that claim one, there was a waiver with claim one as well. [00:02:24] Speaker 01: Oh, okay. [00:02:26] Speaker 04: But I agree, claim seven should be reviewed under a different standard. [00:02:29] Speaker 04: It should be reviewed under an abusive discretion standard. [00:02:33] Speaker 01: So is your argument then going to focus on claim one for now? [00:02:37] Speaker 04: Yes. [00:02:37] Speaker 04: I think that would be useful. [00:02:39] Speaker 04: So in the Markman process, message wasn't the direct subject of claim construction, but AMS made its position very clear. [00:02:48] Speaker 04: And BI appeared to acquiesce. [00:02:50] Speaker 04: At Markman, BI attempted to conflate message with an alert message. [00:02:55] Speaker 04: BI proposed that the term at issue was parses raw data, that it should mean the situation analyzer applies a set of rules to the raw data to create two or more messages. [00:03:07] Speaker 04: In other words, [00:03:09] Speaker 04: that the situation analyzer takes in the raw data and out pops the message. [00:03:16] Speaker 01: even if I agree with you on message, which quite frankly I'm inclined to do, even if I agree with you on that, that doesn't get you over the non-infringement, right? [00:03:24] Speaker 01: Because you still have to establish, don't you, a situation analyzer that does all these other things using historical data. [00:03:33] Speaker 01: So even if I agree with your interpretation of message, and if I think the district court's interpretation is too narrow, it seems to me that that solves all your problems. [00:03:42] Speaker 04: Okay, so the other basis that [00:03:46] Speaker 04: that the district court relied on or what the district court said was that AMS had failed to show the action to be applied portion of the limitation. [00:03:56] Speaker 04: So message, action to be applied. [00:04:00] Speaker 04: If we look at claim one, it says situation analyzer looks to workflow instructions and historical data for an action to be applied to each of said plurality of messages. [00:04:14] Speaker 04: We can look to claim seven here for a little bit of perhaps help in interpreting what's going on. [00:04:24] Speaker 04: Subset C corresponds to this limitation and it says determining an action to be applied. [00:04:33] Speaker 04: BIs or AMS's position has been that the BI system, when it determines if a message evidences a drinking event, that's the action to be applied. [00:04:46] Speaker 04: AMS has made its position as clear as possible. [00:04:49] Speaker 04: This is from 6306. [00:04:52] Speaker 04: The TAD processor queries, analyzes, and relies upon historical data to determine whether an alert condition exists, rendering summary judgment inappropriate. [00:05:03] Speaker 04: Determine or variance of determine are used at least nine times to describe how the BI TAD processor uses historical data to evaluate the most recently received message to identify drinking events. [00:05:18] Speaker 04: AMS made it as clear as possible that BI looks to historical data for an action to be applied to the newly received message, determining if the evidence is a drinking event. [00:05:34] Speaker 03: What did I miss? [00:05:35] Speaker 03: I thought that what the district court was saying was that the claim requires the situation analyzer to query historical data, yada, yada. [00:05:45] Speaker 03: But he determined that there is structure, there is an accused, there is a situa... [00:05:52] Speaker 03: a situation analyzer in the BI system, but it doesn't do that. [00:05:59] Speaker 03: That the query of the historical data took place in different structure in the accused device. [00:06:07] Speaker 03: That's what I understood Judge Ebell to be saying. [00:06:11] Speaker 03: Right. [00:06:12] Speaker 04: And the way the court got there, it construed message to only be alert messages in the patent, [00:06:21] Speaker 04: Raw data comes in, it gets parsed into messages. [00:06:24] Speaker 01: Well, I don't think that that's right. [00:06:27] Speaker 01: I do agree with you that that's how it can shoot a message. [00:06:31] Speaker 01: But I read his opinion as independently concluding that an action to be applied to said plurality of messages requires the messages to already be in existence. [00:06:44] Speaker 01: And the action to be applied can't be the creation of the message, it has to be an action taken on the already existing message. [00:06:51] Speaker 01: And I think that is to say maybe I'm not understanding his opinion, but that was what I took out of it. [00:06:57] Speaker 01: I may not be artfully explaining it. [00:07:00] Speaker 04: So the way I understand the BI system, the message comes in, the BI analyzer, the situation analyzer, looks at it and determines whether it evidences a drinking event or not. [00:07:13] Speaker 04: If it does, it puts it in an event table. [00:07:18] Speaker 04: If it doesn't, it puts it at stores. [00:07:19] Speaker 04: That's the action to be applied. [00:07:21] Speaker 04: The idea that the determination as to whether the incoming message, the incoming raw data, evidences a drinking event or not, is the action that is applied to that message. [00:07:37] Speaker 04: Did that make sense? [00:07:49] Speaker 04: If I could, if I could encourage the court to look at figure 14 from the 611 patent, it's at A125. [00:08:16] Speaker 04: Data comes in the communication server from the modem. [00:08:20] Speaker 04: It's raw data. [00:08:21] Speaker 04: The situation analyzer parses it. [00:08:23] Speaker 04: It separates out the TAC data from the rest of the data. [00:08:29] Speaker 04: And then from the situation analyzer, if it's parsed out to be an alert, it gets sent to the alert manager. [00:08:37] Speaker 04: Never, ever does an already determined alert go to the situation analyzer. [00:08:44] Speaker 04: The arrows don't point that way. [00:08:45] Speaker 04: The only thing that goes into the situation analyzer is raw data and workflow instructions. [00:08:50] Speaker 04: The same thing happens in the BI system. [00:08:53] Speaker 04: Raw data comes in to its analyzer. [00:08:56] Speaker 04: It's parsed out. [00:08:58] Speaker 04: It's determined through the MAD6 processor whether there is an alcohol event evidenced or not. [00:09:07] Speaker 04: And then the data, if it evidences an alcohol event, is flagged to go to a table where it's picked up and sent out. [00:09:22] Speaker 01: Just so I make sure I understand, under Claim 1, there seem to be two different elements. [00:09:30] Speaker 01: And as you're explaining to me, I agree that the embodiment disclosed in that figure works exactly the way you explained it. [00:09:36] Speaker 01: But I'm trying to focus on the claim language of Claim 1. [00:09:39] Speaker 01: And what I'll call the second element says a situation analyzer connectable with the communication server wherein the situation analyzer parses that raw data through a predetermined set of rules into a plurality of messages. [00:09:53] Speaker 01: But that's not the, that is what you're talking about it seems to me. [00:09:58] Speaker 01: But that's not the place where the district court found there was no proof of infringement. [00:10:04] Speaker 01: Where the district court found there was no proof of infringement is the next element. [00:10:08] Speaker 01: Where you have that plurality of messages already. [00:10:10] Speaker 01: You already have them. [00:10:12] Speaker 01: And there's an action to be applied to them. [00:10:14] Speaker 01: In the case of the patent I understand it's like taking the emails and putting them into precise folders. [00:10:19] Speaker 01: That's what I don't understand, to be present in the accused system is an action being applied to that already existing message, so tell me what I'm missing. [00:10:28] Speaker 04: Okay, so the message comes in, it's parsed, so the TAC message is separated out from the rest of the message. [00:10:36] Speaker 04: Once that happens, [00:10:38] Speaker 04: The MAD-6 algorithm is applied to that message. [00:10:42] Speaker 04: That's the historical data. [00:10:44] Speaker 04: It's applied to the message that is already existent because it was parsed. [00:10:48] Speaker 01: I feel like you're complaining raw data on the one hand and message on the other. [00:10:54] Speaker 01: there is a parsing of raw data into a plurality of messages. [00:11:01] Speaker 01: And so I feel like you still want to use raw data, not messages, in the next element. [00:11:07] Speaker 01: That's not what the claim says. [00:11:08] Speaker 01: You've already got to have a message. [00:11:09] Speaker 01: You've got to take that raw data, put it into a message, then there's an action supplied to the message. [00:11:14] Speaker 01: Not an action that's applied to the raw data, there's an action supplied to the message. [00:11:19] Speaker 01: And that's the part, I mean, I may not understand this well enough, but that's the part I feel like [00:11:23] Speaker 01: you're mushing together in a way. [00:11:26] Speaker 04: So if we could look at column... I don't want to look at column anything. [00:11:30] Speaker 01: I want to look at the claim language. [00:11:31] Speaker 01: I mean, what am I missing here? [00:11:33] Speaker 01: The claim language distinguishes between raw data and actions that occur to raw data and then a created message and then actions that will occur to that message. [00:11:42] Speaker 01: Tell me how the infringing device does that. [00:11:45] Speaker 01: Does it create a message? [00:11:47] Speaker 04: The raw data comes in and when it's parsed, that becomes the message. [00:11:52] Speaker 04: So raw data comes in, there's temperature, there's tamper, whatever. [00:11:58] Speaker 04: Those are separated out. [00:11:59] Speaker 04: That becomes the message. [00:12:01] Speaker 04: In this next step, the situation analyzer grabs workflow instructions, grabs the MAD6 algorithm, which contains historical data, and it works on that message. [00:12:16] Speaker 01: So it works on that subset of raw data. [00:12:19] Speaker 04: the subset of raw data is the message. [00:12:21] Speaker 01: Yeah, that's what I understand you're saying. [00:12:23] Speaker 04: Okay, and that is totally supported in Column 13. [00:12:30] Speaker 01: Okay, now you can tell me what's in Column 13. [00:12:33] Speaker 04: Column 13, Line 9. [00:12:36] Speaker 04: As a predicate, the Static Pocket talked about separating the raw data into these different units, positive TAC, equipment tampers, and so on. [00:12:49] Speaker 04: And here at 13.9, the situation analyzer 124 will make inquiries to workflow instruction 128 to get direction on what is the default or specific action that should be applied to the message that was just received. [00:13:06] Speaker 04: The only message just received is the parse flaw data that's consistent with the claim construction that the parties agreed upon. [00:13:16] Speaker 04: the client construction party's agreed upon. [00:13:18] Speaker 04: Data relating to prior messages as opposed to data relating to the message just received. [00:13:24] Speaker 01: But then it's the alert manager that does something with it here, right? [00:13:29] Speaker 01: Not the situationist. [00:13:30] Speaker 04: Your Honor, there's a fundamental problem. [00:13:32] Speaker 01: Am I wrong though about what I'm reading in this column of the spec? [00:13:37] Speaker 01: Isn't there a difference between the alert manager and the situationist? [00:13:42] Speaker 04: that there is a difference. [00:13:44] Speaker 04: But the fundamental problem in the analysis is that the district court conflated alert message with message. [00:13:53] Speaker 04: Alert message is a subset of messages. [00:13:57] Speaker 04: What is parsed is what becomes the initial message that is acted upon. [00:14:04] Speaker 04: After that message is analyzed, then you know whether you've got an alert message or not. [00:14:09] Speaker 04: The analysis fell apart at the district court because the district court assumed that a message was only an alert message, which is handled by a different part of the BI process. [00:14:24] Speaker 02: Why don't we hear from the other side? [00:14:36] Speaker 00: Good morning. [00:14:37] Speaker 00: Good afternoon, Your Honor. [00:14:39] Speaker 00: May I please report? [00:14:41] Speaker 00: Timothy Getzoff on behalf of the defendant athlete BI Inc. [00:14:45] Speaker 00: Judge Moore, you're absolutely right that the plaintiff's argument for infringement depends on conflating raw data with messages. [00:14:54] Speaker 00: That's improper. [00:14:56] Speaker 01: It's improper given... Well, what are messages? [00:14:58] Speaker 00: The messages are what is generated from the raw data. [00:15:03] Speaker 00: So the raw data can be alcohol data, it can be other kinds of data that comes in, and the device, and I would cite to the same specification language that I think explains this pretty well. [00:15:15] Speaker 00: It's at column 12, it starts at line 50, and then it goes on to column 13. [00:15:20] Speaker 00: down to about line 45. [00:15:22] Speaker 00: It's about one column in total, but it explains the raw data comes in and the system creates messages. [00:15:32] Speaker 00: The messages can be a positive TAC, which is the Transdermal Alcohol [00:15:36] Speaker 00: It can be an equipment tamper. [00:15:39] Speaker 00: It can be a communication alert. [00:15:41] Speaker 00: It can be some sort of maintenance messages. [00:15:43] Speaker 00: But the messages, as Your Honor correctly noted, are what's created from the raw data. [00:15:50] Speaker 00: And that, in Claim 1, is what the situation analyzer does first. [00:15:55] Speaker 00: It creates these messages. [00:15:56] Speaker 00: Next, the device needs to decide what are we going to do with these messages. [00:16:01] Speaker 00: I've now got a plurality of messages in this system. [00:16:05] Speaker 00: Some are positive alcohol, some are something else. [00:16:09] Speaker 00: And that's where the third element, the separate element, comes in in Claim 1, where the situation analyzer looks to workflow instructions and looks to historical data. [00:16:20] Speaker 00: to say, what am I going to do with this message that I've just created? [00:16:26] Speaker 00: And the same passage in the patent specification describes the kinds of actions. [00:16:30] Speaker 00: The kinds of actions can be, I'm going to report it. [00:16:34] Speaker 00: I'm going to snooze it if I don't think it's a big deal. [00:16:38] Speaker 00: I can do other things, too. [00:16:41] Speaker 03: How much of Mr. Trimbaut's argument here on the 611 patent, in your view, was waived? [00:16:48] Speaker 03: I understood your brief to argue the measure of some dimension of Mr. Trimbass 611 argument was waived because it was not presented until the Rule 59 proceeding. [00:17:02] Speaker 00: That's correct, Your Honor. [00:17:02] Speaker 00: Essentially, his argument covered a couple of different facets. [00:17:06] Speaker 00: All of it was waived. [00:17:08] Speaker 00: Everything Mr. Trembath argued was waived, except for the argument that the MAD-6 algorithm relies on historical data. [00:17:18] Speaker 00: That narrow piece of the argument was waived. [00:17:21] Speaker 03: Maybe I was wrong, but I understood Judge Ebell to have essentially heard the gist of Mr. Trembath's argument to us here today. [00:17:30] Speaker 03: He heard it on Reel 59. [00:17:32] Speaker 00: He did. [00:17:33] Speaker 03: And Judge Ebell said, Mr. Trembath, that's a nice argument. [00:17:36] Speaker 03: It may well be a winning argument, but it's too late. [00:17:39] Speaker 00: But it's new in its way. [00:17:41] Speaker 00: And that applies to the bulk of what we've talked about today, which is what messages mean. [00:17:47] Speaker 03: I understand that, but what I want to ask you is that [00:17:53] Speaker 03: If what you're talking about is claim construction, and if a sufficient predicate for Mr. Tranvass' point of view had been laid down initially in his claim construction proceeding, the fact that Judge Ebell says, well, you should have told me more at summary judgment it's too late for a Rule 59 doesn't necessarily mean it's too late for appellate review here, does it? [00:18:17] Speaker 00: Normally it would not, but it does in this case for this reason. [00:18:25] Speaker 00: Because they teed this issue up on rule 59 and because we now have an order from the district court saying that it was waived. [00:18:34] Speaker 00: they first procedurally have to overcome that waiver argument by arguing and developing in their opening brief that it was an abuse of his discretion by Judge Evill to not look at... Well, I'm trying to put this in a context. [00:18:49] Speaker 03: I started by saying if Mr. Trembath and his counsel had laid down a sufficient predicate during claim destruction, if he had said during claim destruction, listen here, message means X, X, Y, and Z, [00:19:01] Speaker 03: And then Judge Abel said, no, I disagree with you on summary judgment. [00:19:07] Speaker 03: And then he goes on real 59 and says, well, I'm repeating my argument from claim construction. [00:19:12] Speaker 03: And Judge Abel says, too late. [00:19:13] Speaker 03: I'm not going to hear that. [00:19:14] Speaker 03: You'll understand that. [00:19:16] Speaker 03: But that wouldn't foreclose us from going back to the initial position on claim construction to decide what is correct or not. [00:19:23] Speaker 00: It does in this particular case because they did not challenge Judge Ebell's waiver order. [00:19:31] Speaker 00: Judge Ebell's waiver order in the Rule 59 may be wrong and that was challengeable and they were eligible to challenge that before this court. [00:19:39] Speaker 00: But what they needed to do in their opening brief in this case was challenge it. [00:19:43] Speaker 00: Say he was wrong to foreclose us. [00:19:46] Speaker 00: The predicate was in the record. [00:19:48] Speaker 00: We're simply making a different facet on our existing argument. [00:19:53] Speaker 00: So we're not foreclosed. [00:19:56] Speaker 00: They blasted ahead in their opening brief making the argument that Your Honor is making as if there wasn't a Rule 59 order saying it's been waived. [00:20:06] Speaker 00: So that's the second layer of waiver in that in their opening brief, they needed to first challenge [00:20:13] Speaker 00: the judge's waiver order under the abuse of discretion and say he was wrong to foreclose us. [00:20:19] Speaker 03: In other words, they would have been... What's the final judgment that we're reviewing here? [00:20:24] Speaker 03: Is it the decision on this request for redetermination or is it the summary judgment? [00:20:30] Speaker 00: No, it's the summary judgment with one exception in that they did make in their opening brief, they did [00:20:37] Speaker 00: They didn't say it was an abuse of discretion. [00:20:39] Speaker 00: They didn't cite the right standard of review. [00:20:43] Speaker 00: But they at least acknowledged that there was a Rule 59 order saying that they had waived an argument. [00:20:50] Speaker 00: And they complained about that. [00:20:51] Speaker 00: And viewing this somewhat generously, that could be construed as raising it on appeal. [00:20:57] Speaker 00: And we gave them credit for that in our response brief and said they didn't even make an opening argument on appeal that there was an abuse of discretion [00:21:05] Speaker 00: That's the two layers of waiver that we have in this case. [00:21:09] Speaker 00: It's frankly somewhat unusual to have these two layers of waiver, but the only argument that they actually [00:21:19] Speaker 00: argued with error by Judge Ebell was this issue on Claim 7, the interplay between the method Claim 7, which doesn't have the situation analyzer tethered to the same claim limitation. [00:21:32] Speaker 00: They did argue that in their opening brief. [00:21:36] Speaker 00: That particular issue first needs to be reviewed by this court on an abuse of discretion standard, and we're prepared to do that. [00:21:46] Speaker 00: But this other argument about what messages mean and messages doesn't mean what everyone in the case had thought it means, that was not only new, [00:21:56] Speaker 00: It was held waived by Judge Ebell and it wasn't challenged in their opening brief. [00:22:01] Speaker 00: That's why it was waived a second time is they didn't challenge Judge Ebell's waiver order in their opening brief. [00:22:08] Speaker 00: They just went right to the merits as if there wasn't a Rule 59 order and they can't do that. [00:22:15] Speaker 03: The reason why I raised this for the purpose of the arguments on Mr. Cunbath and then have a chance to respond to it is that [00:22:22] Speaker 03: As I read his brief on the 611 issue, and as I heard him making his own argument here, it didn't strike me that he was totally out of the ballpark. [00:22:31] Speaker 03: But then I went back and looked, and I realized that your main challenge to Mr. Trendbast's 611 arguments is too late. [00:22:40] Speaker 00: That's the threshold challenge, absolutely, Your Honor, in that as to the messages versus alerts and that the district court improperly conflated messages with alerts. [00:22:53] Speaker 00: That is one of the issues they raised for the first time in the Rule 59 motion, which Judge Evel said was waived. [00:22:59] Speaker 00: So to address that before your honor, they have to argue that was error by Judge Ebell and they didn't. [00:23:05] Speaker 00: That's the problem. [00:23:06] Speaker 01: Was the construction of the term message in dispute prior? [00:23:11] Speaker 01: It wasn't and that's... So why then, when we're talking about claim construction, if there's an issue that's not in dispute and then the court comes along and provides a very narrow construction of a term, [00:23:26] Speaker 01: out of the blue in a manner that surprises them. [00:23:29] Speaker 01: Why don't they have a right at that point to say, time out, where did this come from? [00:23:33] Speaker 01: This isn't right. [00:23:34] Speaker 01: I think there are problems with it. [00:23:37] Speaker 00: Well, they can do that if that was the case. [00:23:41] Speaker 00: The problem for them is, on the record, it wasn't out of the blue. [00:23:45] Speaker 00: It was the same. [00:23:46] Speaker 00: The party stipulated to the definition of historical data at the markman here. [00:23:52] Speaker 00: No, message was part of the party's stipulation. [00:23:56] Speaker 00: Message was the definition of historical data. [00:24:00] Speaker 00: Historical data was defined to mean, stipulated by the parties, data relating to past messages and not the [00:24:09] Speaker 00: the current message just received. [00:24:11] Speaker 00: So message was part of the construction for the first time on rule 59. [00:24:18] Speaker 01: That's historical data as distinct from the raw data that's coming through. [00:24:21] Speaker 01: I don't see how, show me in the record where there was a stipulation that the term message [00:24:29] Speaker 01: is narrowly limited to only alerts or a message. [00:24:35] Speaker 00: There was not. [00:24:36] Speaker 01: And I didn't see that argument being made below in a manner that would have clearly put them on notice that the judge might come along and make such a narrow ruling on the word message. [00:24:48] Speaker 01: And so under those circumstances, I don't see how there isn't a problem under the 59 rule. [00:24:56] Speaker 01: Well, they weren't on notice, and you weren't arguing it. [00:25:01] Speaker 01: Look, rogue judges, even me, maybe some days, will write something in opinion not realizing I've gone beyond what the parties have argued and said and everything else. [00:25:13] Speaker 00: And let me address both parts of that. [00:25:15] Speaker 00: First is whether this was truly out of the blue, because it wasn't. [00:25:18] Speaker 00: And I would point, Your Honor, to our opening brief [00:25:23] Speaker 00: on summary judgment, which was in the record A5542, where we equate messages with violation messages. [00:25:34] Speaker 00: And the reason we did that is because... But I agree with you, and so would he. [00:25:38] Speaker 01: A violation message is a form of message. [00:25:40] Speaker 01: He would just say it's not the only form of message discovered. [00:25:42] Speaker 01: Don't nod your head at me. [00:25:44] Speaker 00: That's the only evidence. [00:25:46] Speaker 00: We did that because we cited their own expert report. [00:25:49] Speaker 00: He didn't use it as one example of their own expert in his expert report equated message with violation messages. [00:26:04] Speaker 01: is my guess. [00:26:05] Speaker 01: I haven't read it, could be completely wrong. [00:26:08] Speaker 01: He didn't say, for purposes of claim construction, the term message should be construed as limited to, or construed as equated to, or should be construed as only covering. [00:26:18] Speaker 00: No, what he said is for purposes of my affirmative opinion on infringement for why BI infringes, [00:26:28] Speaker 00: messages are the violation messages. [00:26:31] Speaker 00: He didn't say anything else and they have the burden of proof here. [00:26:34] Speaker 00: So he needed to identify what are you talking about that infringes. [00:26:38] Speaker 00: The only thing he identified were the violation messages. [00:26:42] Speaker 00: That was the premise of our summary judgment breaches. [00:26:45] Speaker 00: We took their own expert's analysis and said, he only points to violation messages. [00:26:52] Speaker 00: Fine, let's go with that. [00:26:53] Speaker 00: Our opening brief uses those two terms interchangeably. [00:26:57] Speaker 00: I would point out their response brief at 6304 and 6306 in the record. [00:27:04] Speaker 00: They interchanged messages, alerts, alert conditions as well. [00:27:09] Speaker 00: This was a non-issue, Your Honors. [00:27:12] Speaker 00: This didn't become an issue until they lost summary judgment. [00:27:15] Speaker 00: They had to regroup and say, we need to figure something else out. [00:27:18] Speaker 00: And then they came up with this new argument is, oh, well, messages doesn't mean [00:27:22] Speaker 00: The messages described on column 12 of the 611 patent positive task equipment tamper messages means the raw data coming in. [00:27:33] Speaker 00: But as Your Honor pointed out, that conflates two different and discrete topics in the different elements. [00:27:39] Speaker 00: So that didn't get them anywhere on the merit, but it was also contrary to how they argued it [00:27:45] Speaker 00: up through their extra reports and summary judgments. [00:27:47] Speaker 00: So for them to say, this was new and a surprise. [00:27:51] Speaker 01: It doesn't seem correct for you to say it's contrary to how they argued. [00:27:55] Speaker 01: Because the word contrary implies the opposite. [00:27:57] Speaker 01: It seems like you're going too far. [00:27:59] Speaker 01: And I don't like when lawyers do that. [00:28:01] Speaker 01: It seems to me your best argument is they didn't argue this. [00:28:05] Speaker 01: They argued that, but not that the arguments they made all along are contrary to the arguments they're making now. [00:28:12] Speaker 01: Do you see the point? [00:28:13] Speaker 00: It's a fair point. [00:28:15] Speaker 00: What I should have said is it's contrary to how their own expert used it. [00:28:19] Speaker 00: And they didn't say anything different. [00:28:23] Speaker 00: You're right. [00:28:23] Speaker 00: They acquiesced to that understanding of message, which their own expert advanced. [00:28:29] Speaker 00: We accepted and we based our summary judgment on it. [00:28:32] Speaker 00: Their response was based on it too. [00:28:34] Speaker 00: There's nothing in the response brief that says, wait a minute, you're conflating messages with alerts and that's improper. [00:28:40] Speaker 00: That's not in the response brief either. [00:28:42] Speaker 00: Again, if this message issue was a non-issue, [00:28:46] Speaker 00: Frankly, it's a non-issue because when you read the specification that one column I cited you to, Your Honor, it's fairly clear the messages are what's created from the data and then the action to be applied is what do you do with those messages? [00:29:02] Speaker 00: Do you send it to the parole officer? [00:29:04] Speaker 00: Do you ignore it? [00:29:07] Speaker 00: How do you send it? [00:29:09] Speaker 00: And the patent explains why historical data is important because it has the ability to look at prior messages, prior violations, and say this is his... You can realize that the claim language simply says situation analyzer parses. [00:29:26] Speaker 01: Wouldn't you agree with me? [00:29:26] Speaker 01: Parses means separates or divides. [00:29:29] Speaker 01: That's my definition of parses. [00:29:31] Speaker 01: Parses means if you give me a bowl of fruit, I'm going to parse it into different [00:29:35] Speaker 01: kinds of fruit, or I mean, pars and apple into 10 different slices or something. [00:29:40] Speaker 01: Parses means divides are separate. [00:29:41] Speaker 01: So the plain meaning of parses would say, parses raw data through a previous set of terms and rules into a plurality of messages. [00:29:49] Speaker 01: Apart from the specification, I would read that in a vacuum. [00:29:53] Speaker 01: The plain meaning to me would actually mean, take raw data, divide it up. [00:29:57] Speaker 01: Now each of those divisions is the message. [00:29:59] Speaker 01: I mean that's the plain language of this. [00:30:01] Speaker 01: Now I agree with you that the specification gives it a certainly a very different thought than that. [00:30:06] Speaker 01: Do you see what I'm saying? [00:30:07] Speaker 00: And I would agree that if you read parse, parse can have multiple meanings, parse is not... Parse doesn't mean create though. [00:30:15] Speaker 01: Parse never means create. [00:30:18] Speaker 01: Okay, can you tell me parse? [00:30:19] Speaker 01: Here, parse this bowl of fruit for me and suddenly you've got 12 more bananas at the end of it. [00:30:23] Speaker 01: You didn't create bananas. [00:30:25] Speaker 01: Parse doesn't mean create new stuff. [00:30:27] Speaker 01: Parse means [00:30:28] Speaker 01: divide, separate, categorize, doesn't it? [00:30:32] Speaker 00: It can't. [00:30:33] Speaker 00: It can't. [00:30:34] Speaker 01: When did it ever mean create new stuff? [00:30:36] Speaker 00: In the context of this patent because that's how they wrote it. [00:30:39] Speaker 00: When they, when they, now I understand your honor's question. [00:30:43] Speaker 01: Now we're just going to talk about the word parth in the abstract. [00:30:46] Speaker 01: Plain meaning of parth. [00:30:47] Speaker 01: Are you telling me that they lexicographied somewhere in this patent [00:30:51] Speaker 01: a different meaning for the word parsed than the plain meaning you and I have just agreed on. [00:30:56] Speaker 00: They weren't that explicit, no. [00:30:58] Speaker 00: But the implicit is clear from the columns I pointed you to that the parsing is... Have you ever read any opinion I've ever written on claim construction? [00:31:09] Speaker 01: How often do you find me implicitly doing things? [00:31:12] Speaker 00: I was responding to your direct question as to whether they acted as a lexicographer. [00:31:18] Speaker 01: And you said no. [00:31:20] Speaker 00: No, in that it doesn't say by part we mean X. But they do say for the situation analyzer for exactly what's being talked about, it can be broken down into these categories, and then the action is something different. [00:31:36] Speaker 01: It's like you win a Wiesel under waiver. [00:31:40] Speaker 00: Well, I would ask Your Honor to read the column in the patent that breathes life into the claim language that we're talking about and does talk about the creation of messages that are these things we see that you now need to consult historical data to decide what to do with them. [00:31:59] Speaker 00: Thank you. [00:32:00] Speaker 02: Okay, thank you. [00:32:05] Speaker 02: A little bit of time left. [00:32:06] Speaker 04: As to the waiver issue. [00:32:10] Speaker 04: I believe Judge Moore in Golden Bridge and the 10th Circuit in the Barber case that B.I. [00:32:17] Speaker 04: has cited found that when there is a Rule 59 motion after a summary judgment, the summary judgment order is reviewed deniable. [00:32:27] Speaker 04: There is no waiver. [00:32:29] Speaker 04: As to the waiver on message, B.I. [00:32:33] Speaker 04: represented, contrary to how argued, [00:32:37] Speaker 04: or something like that. [00:32:39] Speaker 04: No, they said there was a new argument. [00:32:40] Speaker 04: The claim construction argument was new. [00:32:43] Speaker 04: I would ask the court to look at A 3566 through 3572. [00:32:47] Speaker 04: At 3572, BI said, therefore, to the extent BI equates a similar message with a violation or consumption event, BI's construction is not only unsupported by the claim language and the specification, it is contrary to the science of the invention. [00:33:06] Speaker 04: PMS's position on the construction of the message has been consistent through claim construction and through its opposition to summary judgment. [00:33:18] Speaker 02: I believe I have nothing further to add. [00:33:23] Speaker 02: Thank you. [00:33:24] Speaker 02: Thank you very much. [00:33:35] Speaker 04: The honorable court is adjourned until tomorrow morning at 10 o'clock a.m.