[00:00:48] Speaker 03: The next case for argument this morning is 14-125-8, all voice developments versus Microsoft. [00:00:57] Speaker 02: Whenever you're ready. [00:01:11] Speaker 03: Is it Mr. Shi? [00:01:12] Speaker 01: Yes. [00:01:12] Speaker 01: May it please the court. [00:01:14] Speaker 01: My name is Daniel Shi, appearing on behalf of all voice. [00:01:17] Speaker 01: which thanks the court for hearing the case today. [00:01:19] Speaker 01: I'll start with the issue of the district court's grant of summary judgment of non-infringement based on supposed absence of linked data. [00:01:28] Speaker 04: The district court refused to consider the technical and expert evidence showing of... Before you get to that, you raised a claim construction or two claim construction issues about linked data. [00:01:39] Speaker 04: What impact do those constructions have on the result here? [00:01:44] Speaker 04: I was not clear about that. [00:01:46] Speaker 01: Your Honor, we believe it impacts the reason for needing to amend the contentions. [00:01:53] Speaker 01: I can certainly understand that the court could decide the case without reaching the linked data issue, the construction issue, excuse me. [00:02:02] Speaker 01: However, that could be then a cause for another [00:02:06] Speaker 01: In the interest of judicial efficiency, we think it makes sense to address it simply because it could be dispositive below again. [00:02:13] Speaker 01: But it is possible to decide the case without resolving that. [00:02:17] Speaker 04: So your view is that the infringement question with respect to the linked data issue turns entirely on whether the original [00:02:26] Speaker 04: infringement contentions, one, included the TFS property store, and two, whether it was a visa discretion to preclude you from amending. [00:02:38] Speaker 01: Correct, Your Honor, and a decision that either of those was error would be, you know, separate independent grounds for reversal. [00:02:45] Speaker 03: And in addition to that, just to get straight what's at stake here and what the issues are, and then you've got the separate issue of the 101 on claims 60 to 68? [00:02:54] Speaker 01: Among others, there's also the issue of construction of audio identifiers. [00:03:02] Speaker 04: But we don't have to address the audio identifiers question if we were to rule against you on the linked data question, right? [00:03:09] Speaker 04: That is true. [00:03:09] Speaker 01: I hope it doesn't go that way. [00:03:10] Speaker 01: But yes, Your Honor. [00:03:14] Speaker 01: So addressing the first round of issue here that the district court precluded all voice from relying on data in the property store, that was an immensely consequential decision, acting as effectively as a case killing sanction. [00:03:29] Speaker 01: And let me be clear on two things here. [00:03:32] Speaker 01: First, this case does not involve some new infringement theory presented on summary judgment that was contrary to what had been in the infringement contention. [00:03:42] Speaker 01: All of the cases that Microsoft presents and relies on and uses to import hyperbole characterizations of shifting stands and vexatious shuffling and the like, all of those cases involve brand new theories presented [00:03:55] Speaker 01: that were not in the contentions that were contrary and often, in some cases, completely the flip of what had been offered before. [00:04:03] Speaker 04: But there was no reference in the original infringement of contentions to the TSF property store except to the extent that you contend that it was referenced in these documents that were silent. [00:04:13] Speaker 04: It absolutely was referenced in the document side of your honor. [00:04:16] Speaker 04: Yes. [00:04:17] Speaker 04: I understand your contention. [00:04:18] Speaker 04: But apart from the documents, it wasn't referenced in the original infringement contentions. [00:04:23] Speaker 01: Well, to be clear, the element at issue was not linked data per se. [00:04:29] Speaker 01: It was the element of the method step of using the interface application program to form linked data. [00:04:36] Speaker 01: And the contentions pointed to what that step was, which was an act of associating two pieces of data, namely [00:04:43] Speaker 01: character position, position of the words, excuse me, and the audio, where the audio wasn't. [00:04:49] Speaker 04: Let me try to be clear about this. [00:04:51] Speaker 04: Let's for the moment ignore the references to the document. [00:04:55] Speaker 04: Let's say they weren't included in the original infringement contention. [00:04:59] Speaker 04: Do you agree that with that exclusion that the original infringement contention was inadequate? [00:05:05] Speaker 01: No. [00:05:06] Speaker 04: No. [00:05:06] Speaker 04: Why not? [00:05:07] Speaker 01: Well, first of all, we could find no precedent, certainly Microsoft cites none, where a perceived lack of specificity in the infringement contentions warranted summary judgment. [00:05:20] Speaker 04: Yeah, but I'm not talking about the lead to amend. [00:05:23] Speaker 04: I'm just talking about the question of whether the original infringement contentions themselves were inadequate without amendment. [00:05:31] Speaker 04: And you're saying that [00:05:32] Speaker 04: The fact that the TSF property store was left out there is not a ground for a summary judgment passed up. [00:05:41] Speaker 01: It's not in this case because there is nothing in the record suggesting that anything other than that property store information was what was being talked about. [00:05:52] Speaker 01: There is nothing here that provides a basis for confusion between that and something else as what was being accused. [00:06:02] Speaker 02: So you did say that there were other grounds for infringement, but they turned on your claim construction items, correct? [00:06:10] Speaker 02: I'm not sure I understand your question. [00:06:11] Speaker 02: You didn't just submit infringement contentions that says, well, no part of this infringes. [00:06:17] Speaker 02: You did say there were specific aspects that you claimed infringed. [00:06:20] Speaker 02: But you were claiming they infringed under what, an alternative claim construction? [00:06:25] Speaker 01: No, Your Honor. [00:06:27] Speaker 01: We alleged that the step of associating two pieces of information [00:06:32] Speaker 01: was what satisfied the method step of forming linked data. [00:06:37] Speaker 01: And now the documents cited in the contentions explain where that association, what kind of data it creates. [00:06:45] Speaker 01: It creates data in the property store of the text services framework. [00:06:50] Speaker 03: I'm a little confused now. [00:06:52] Speaker 03: My understanding is that you did not identify the property store. [00:06:57] Speaker 03: in your infringement contentions is satisfying the leaked data. [00:07:01] Speaker 03: Am I right about that? [00:07:02] Speaker 01: We didn't expressly use those words. [00:07:05] Speaker 03: However, we pointed to... Well, I didn't use any particular words. [00:07:09] Speaker 03: The question is, did you identify the property store in your infringement contentions as satisfying the leaked data? [00:07:16] Speaker 01: Yes, Your Honor, and here's how. [00:07:19] Speaker 01: We identified the step that satisfied [00:07:23] Speaker 01: the requirement of forming linked data. [00:07:25] Speaker 01: And that was the act of associating the character, the word locations with the audio stream information. [00:07:33] Speaker 01: The contentions are a technical document. [00:07:38] Speaker 01: They have to be read with some technical background. [00:07:40] Speaker 01: And certainly with the document we cited, that was essentially a theory of operation of the accused functionality. [00:07:47] Speaker 01: And the only place in that document talking about any associating at the step at all [00:07:52] Speaker 01: in that document is about using the TSF properties. [00:07:55] Speaker 01: They refer to a Cicero, but everyone understands that that's a code name for TSF. [00:07:59] Speaker 01: It uses those Cicero properties to create, to make that association. [00:08:05] Speaker 01: So that is clear, and there's no area for confusion, and the proof is- That seems to be kind of reading out the local rules. [00:08:13] Speaker 04: You're saying that as long as the functionality was described, you don't have to [00:08:18] Speaker 04: describe the actual place in memory where this happens. [00:08:21] Speaker 04: I mean, that seems to me to be a construction of local rules, which makes them largely meaningless. [00:08:28] Speaker 01: No, Your Honor. [00:08:29] Speaker 01: The local rules, I mean, the issue of specificity can be enforced by requiring more specificity. [00:08:37] Speaker 01: Microsoft never moved to require that there be more specificity in there. [00:08:41] Speaker 01: And that is proof positive that they had what they needed for purposes of discovery and clean construction, that they needed nothing more. [00:08:48] Speaker 01: Moreover, the information was in there. [00:08:50] Speaker 01: They've never been able to point, and we asked at the district court level and in the briefs here, where is the confusion? [00:08:56] Speaker 01: What other active associating? [00:08:58] Speaker 01: could we have been talking about? [00:08:59] Speaker 02: They pointed to none. [00:09:01] Speaker 02: We might agree with you that if the district court found your infringements to be adequate under the district court's own interpretation of the school, that we wouldn't find an abuse of discretion. [00:09:13] Speaker 02: But what you're asking us to do is to say we have to find an abuse of discretion when the district court found them to not be adequate. [00:09:20] Speaker 01: Actually, I think the posture benefits us, and here's why. [00:09:24] Speaker 01: To the extent that district court was trying to impose a sanction, [00:09:27] Speaker 01: for insufficient specificity, it didn't do what it was supposed to do. [00:09:33] Speaker 01: I agree, Your Honor, because it didn't find bad faith or anything else or any other profession. [00:09:37] Speaker 01: So what the district court was essentially doing was limiting the evidence that it was going to consider on summary judgment to what was in the infringement contentions. [00:09:46] Speaker 01: That has to be viewed in the light most favorable to the non-moving party, us. [00:09:51] Speaker 01: And those infringement contentions included [00:09:55] Speaker 01: the citations to the evidence that we rely on that clearly show the property stores being used for that associating act. [00:10:03] Speaker 01: So given the posture of this case on summary judgment, that requires a finding of error. [00:10:12] Speaker 03: But this was all equally avoidable, correct, with timely amendments. [00:10:17] Speaker 03: The reason we're here would have gone away if you had timely filed an amendment. [00:10:22] Speaker 01: Yes, Your Honor, and that's the alternative ground that we noted. [00:10:25] Speaker 03: Is there anything other than your saying it took 66 hours or whatever for the source code? [00:10:30] Speaker 03: Is there any other reason you can give us for the delay in filing an amendment? [00:10:35] Speaker 01: Well, we disagree that there was a delay. [00:10:37] Speaker 01: But let me explain. [00:10:39] Speaker 01: The district court was wrong to say that we didn't make a showing of diligence. [00:10:42] Speaker 01: We did. [00:10:43] Speaker 01: There may have been some confusion below, because the local rules didn't come up. [00:10:48] Speaker 03: Anything else to show a reasonable diligence? [00:10:52] Speaker 03: I think in your briefing you cited the fact that there was $66,000 of COBE here. [00:10:58] Speaker 03: I'm wondering what else there was in the record to show that you acted diligently. [00:11:02] Speaker 01: Yes, Your Honor. [00:11:03] Speaker 01: In our motion for leave to amend, [00:11:07] Speaker 01: we pointed out several things. [00:11:09] Speaker 01: We discussed them under the meeting the prong of timeliness, which we think is essentially equivalent to the diligence issue, but the court may have overlooked it because it's referred to as timeliness. [00:11:19] Speaker 01: But we pointed out that our motion came when there was 10 months left of discovery, when expert reports weren't due for more than a year, and most importantly... That's not your diligence. [00:11:31] Speaker 04: No. [00:11:32] Speaker 04: The question is, how were you diligent? [00:11:35] Speaker 01: We were diligent because the motion for leave to amend came a reasonable time after claim construction. [00:11:41] Speaker 01: And as we pointed out, after efforts to meet and confer, and I do want to point out an error. [00:11:46] Speaker 04: How did the time construction cause you a problem identifying the property store as the source of the leave date? [00:11:56] Speaker 01: What the claim construction did was import limitations from the preferred embodiment. [00:12:02] Speaker 01: We did not change what we were accusing of satisfying the expressed elements of the claim. [00:12:08] Speaker 01: But what we sought to do in the amendment was to point out how those newly imported elements were satisfied by what we were already accusing. [00:12:19] Speaker 01: We wanted to add that into the infringement contentions to satisfy any issue. [00:12:24] Speaker 03: That doesn't seem too onerous. [00:12:28] Speaker 03: Doesn't seem too onerous? [00:12:31] Speaker 01: It is not to owners a task. [00:12:32] Speaker 01: In the context of, one has to keep in mind, when evaluating diligence, it has to be relative to what the demands of the case are. [00:12:41] Speaker 01: Here, the parties had agreed to stay all discovery and all deadlines pending an amendment and summary judgment. [00:12:52] Speaker 01: So there had been no progression, no action by either party that would have [00:12:57] Speaker 01: Prejudice itself, I guess, during that time frame. [00:13:00] Speaker 01: That time frame was spent preparing amended contentions, meeting and conferring, which we do have to clarify the record here. [00:13:06] Speaker 01: Microsoft misstates that they never received the amendment, the proposed amendments before the motion. [00:13:12] Speaker 01: That's just not true. [00:13:14] Speaker 01: All voice pointed out in a motion that it had to be deferred. [00:13:16] Speaker 04: What is the opportunity then that caused you to have this eureka moment that you had to identify the TSF property store? [00:13:25] Speaker 01: I believe that's mischaracterizing it, Your Honor. [00:13:27] Speaker 01: There was no eureka moment about having to identify the property store. [00:13:30] Speaker 01: That had been identified. [00:13:32] Speaker 01: There was nothing. [00:13:33] Speaker 01: We talked about the associating step. [00:13:35] Speaker 01: Nothing else in that theory of operation document that we pointed to. [00:13:40] Speaker 01: And talked about any associating other than with the TSF property store. [00:13:45] Speaker 01: So that was already disclosed. [00:13:47] Speaker 04: What prompted discussing- It was already disclosed, which included the infringement conventions in the first place. [00:13:53] Speaker 01: Because the court's claim construction imported a requirement from the preferred embodiment that the information be stored in the memory of the interface application. [00:14:08] Speaker 02: And so we felt that... We knew that that was the claim construction that Microsoft was arguing for all the way back in 2010, right? [00:14:18] Speaker 01: Yes, Your Honor. [00:14:19] Speaker 02: And you knew before the Markman hearing that that was the argument that was going to be presented to the court, right? [00:14:26] Speaker 02: Sure. [00:14:27] Speaker 02: So why didn't you amend your entrenchment contention on the possibility that Microsoft would prevail on that claim construction argument and make it clear that you had an alternative basis to claim entrenchment? [00:14:40] Speaker 01: Several reasons, Your Honor. [00:14:41] Speaker 01: First, there is no case that requires that. [00:14:44] Speaker 01: Second, the local rules contemplate that a construction different from the one you proposed [00:14:48] Speaker 01: could be good cause for amending. [00:14:51] Speaker 01: And I do want to note, too, that this case had been transferred from another district that allowed amendment as a right after claim construction. [00:14:58] Speaker 01: But most importantly, that information was in the cited documents. [00:15:03] Speaker 01: The cited documents say where the information is created, namely in the property store. [00:15:09] Speaker 01: Now, we imported that into the consent sheet after the claim construction. [00:15:14] Speaker 01: Sorry, your honor. [00:15:15] Speaker 04: I'm sorry. [00:15:16] Speaker 04: I have one of those documents that ends 41-10. [00:15:20] Speaker 04: Where does this tell you? [00:15:23] Speaker 04: I have one of the documents that was cited in your original Imprintment Context. [00:15:31] Speaker 04: The one that ends in 41-10. [00:15:39] Speaker 04: 4041, let's say. [00:15:41] Speaker 04: We're in that document. [00:15:45] Speaker 04: Does it identify the TSO process? [00:15:49] Speaker 04: Let me back up a minute. [00:15:53] Speaker 04: My problem is you say in your brief that these documents identify the property store. [00:15:59] Speaker 04: You don't quote from the documents to show us that that is the case. [00:16:04] Speaker 04: Where do those documents say that the property store is the place that the linked data is stored and managed? [00:16:12] Speaker 01: It's in the record at A4365, which I'm pretty sure we put it, but in any event, [00:16:18] Speaker 01: It's A4365. [00:16:30] Speaker 01: And we do quote it at page 16 of our opening brief, Your Honor. [00:16:33] Speaker 01: I see I'm over time. [00:16:38] Speaker 04: Where do I find it on this page? [00:16:41] Speaker 01: Okay, under properties, one of the last sections there. [00:16:49] Speaker 01: And I'll note earlier on the page, it refers to Cicero and explains that Cicero is a synonym here for a text services framework. [00:16:56] Speaker 01: But under properties, it states Cicero provides properties that associate metadata with a range of text. [00:17:03] Speaker 01: The speech tip uses a property referring to those properties of Cicero to associate an abstract pointer to the recognition data with each dictated word. [00:17:12] Speaker 01: That's the only act of associating in this document the theory of operation of this accused functionality. [00:17:18] Speaker 01: And that is, you know, we were talking about the act of associating in our contention. [00:17:23] Speaker 01: So this, you know, no one has, there's no evidence, there's no expert opinion that there's any confusion here about that there's any act of associating other than this one. [00:17:34] Speaker 04: Well, it seems to me what you're saying is that it was perfectly clear to you and everybody else that the TSF property store was the place in memory that the link data was stored. [00:17:43] Speaker 04: And yet you didn't say that in the infringement contentions. [00:17:47] Speaker 04: And you say it wouldn't have been obvious to do that until later. [00:17:51] Speaker 04: And I'm not understanding how to square those two. [00:17:55] Speaker 01: The method step called for the formation of linked data. [00:17:59] Speaker 01: We pointed out where that happens. [00:18:02] Speaker 01: Where the formation happens is in the code of the act of associating. [00:18:08] Speaker 01: If more specificity was desired, it could have been asked for. [00:18:13] Speaker 01: I will point out that Microsoft's non-infringement contentions [00:18:17] Speaker 01: suggested, indicated, stated no lacking of specificity. [00:18:22] Speaker 04: What it comes down to at the end is that the district court required you to be too specific, right? [00:18:29] Speaker 01: The district court called for specificity on an issue that had never been identified as something where there was lacking specificity, where Microsoft had never indicated that it needed more information, where Microsoft formed claim construction positions that reflected [00:18:45] Speaker 01: and understanding of what the linked data was. [00:18:49] Speaker 01: They made their argument about it having to be stored in the interface application memory as the later groundwork for the argument about this. [00:18:58] Speaker 01: So there was no place here that there was any actual issue of confusion here. [00:19:03] Speaker 01: It's totally a gotcha argument on summary judgment. [00:19:06] Speaker 01: They got the benefit of disclosure for purposes of everything they needed, but then on summary judgment, [00:19:11] Speaker 01: the district court that somehow specificity wasn't there and that not only that specificity had to be added, but that somehow that warranted summary judgment and that was wrong. [00:19:37] Speaker 00: Good morning. [00:19:38] Speaker 00: May it please the court. [00:19:39] Speaker 00: My name is David Lender from the law firm of Guadalajara-Manges, representing the appellee, Microsoft. [00:19:45] Speaker 00: Although there are several issues raised in the briefs on appeal, I think the discussion that was with my colleague here is really the fundamental issue, because at the end of the day, that issue is a case-dispositive issue. [00:19:57] Speaker 00: Whether the district court abused its discretion [00:20:00] Speaker 00: in enforcing its local rules, and disallowing all boys from adding the TSF property store to the required link data. [00:20:08] Speaker 04: And the reason- You don't have to decide the one-on-one issue now. [00:20:10] Speaker 00: Your Honor, actually you do not. [00:20:12] Speaker 00: And the reason why is- Because the court's invalidated the claim. [00:20:16] Speaker 00: Yes, Your Honor, but the required link data is in every single claim. [00:20:21] Speaker 04: I mean, if we were to affirm, we would be affirming in part as invalidation of those claims. [00:20:28] Speaker 04: So I don't see how we can avoid that issue. [00:20:30] Speaker 00: Your honor, if you were to find that the court, which we believe you should, found that the court did not abuse its discretion in disallowing the TSF property store, you can affirm the summary judgment filing on all of the asserted claims. [00:20:46] Speaker 02: That's the only point I was making. [00:20:49] Speaker 02: Was your 101 argument raised only as a defense, or was it raised as a counterfeit? [00:20:53] Speaker 00: It was raised as an affirmative defense, and then it was brought on summary judgment as well, the 101 issue. [00:20:59] Speaker 00: So it was not a counterclaim? [00:21:00] Speaker 03: So if there's a finding of non-infringement, the 101 issue falls? [00:21:06] Speaker 00: Correct. [00:21:06] Speaker 00: It was brought as an affirmative defense, the 101 issue. [00:21:11] Speaker 00: And then we brought a summary judgment motion on the 101 issue to invalidate the claim 6068. [00:21:18] Speaker 00: My point is I understand Judge Dyke's question, which is there's a finding of invalidity on 101. [00:21:23] Speaker 00: Do I have to still deal with that issue? [00:21:25] Speaker 00: Because even if there's a finding of no infringement, we still have a finding of invalidity. [00:21:30] Speaker 00: I was making the point simply that the summary judgment can be affirmed solely on the issue of the linked data issue, because that linked data is required in every single claim. [00:21:40] Speaker 00: That was the only point I was making. [00:21:42] Speaker 00: I understand your point. [00:21:43] Speaker 00: Obviously, then we'd still have the issue of all these claims valid or not. [00:21:46] Speaker 00: So I was just making the point simply that the linked data issue is a basis to affirm summary judgment on every asserting claim. [00:21:53] Speaker 03: And I guess now I've gotten confused. [00:21:56] Speaker 03: So you're seeking an affirmance of the non-infringement of every single claim. [00:22:01] Speaker 03: Yes, sure. [00:22:03] Speaker 03: And what with regard to the law? [00:22:06] Speaker 00: Well, I mean, I guess the question, Your Honor, is if you affirm on the issue of non-infringement, then the question is simply, do you need to reach the validity issue as well? [00:22:14] Speaker 00: Obviously, it's part of the appeal. [00:22:15] Speaker 00: So I think you do need to reach the validity issue. [00:22:18] Speaker 00: uh... because it's didn't mean we'd like to know if you're not sure no i'm i'm sure it is an affirmative defense the one on which is confirmed that we did not bring a counterclaim on the one-on-one yes okay okay so i'm sorry to to start with a bit of confusion but that's that's where we are and the judge made findings of non-infringement under of the claim sixteen sixty eight so that that that issue your honor what in the claim construction that is not being appealed by all boys [00:22:46] Speaker 00: the district court found that claims 60 through 68. [00:22:50] Speaker 00: It also required linked data. [00:22:52] Speaker 00: This was the term output means and means for determining the positions of character words. [00:22:58] Speaker 00: Both of those claim terms, the court construed as requiring linked data as well. [00:23:03] Speaker 00: So the same issue of the lack of diligence in adding the TSF property store to the linked data would apply to those claims as well. [00:23:10] Speaker 02: So we could vacate the invalidity finding as moot and affirm summary judgment of non-affringement across the board? [00:23:17] Speaker 02: Is that what you're saying? [00:23:17] Speaker 00: Yes, sure. [00:23:18] Speaker 00: That's what I'm saying. [00:23:19] Speaker 02: So how did these documents that your friend on the other side referred you to not put you on notice of what it was they were really talking about? [00:23:29] Speaker 00: Let's just sort of sit back and where we are. [00:23:31] Speaker 00: The original infringement contentions, which you can find at A3538, [00:23:38] Speaker 00: never ever called out the TSF property store. [00:23:41] Speaker 00: In fact, if you look at that document, what you'll see is that they actually identified multiple different applications that they claimed formed the linked data. [00:23:52] Speaker 00: So if you look at A538, what you'll see is they accused, they said that the SAPI server which forms linked data includes TSF, SAPI server, related client APIs, [00:24:05] Speaker 00: and another application, spsrang.dll. [00:24:09] Speaker 00: Nowhere do you see the TSF property store. [00:24:11] Speaker 00: They identified four different applications. [00:24:14] Speaker 00: And if you include the client API, there's actually multiple applications included within that. [00:24:19] Speaker 00: So there's absolutely no question that the TSF property store is not identified in the operative infringement contentions. [00:24:27] Speaker 00: So therefore, what they would have you say is, well, they cited a bunch of technical documents [00:24:31] Speaker 00: And somewhere within those technical documents, we should have known that what they were actually accusing was the TSF property store. [00:24:40] Speaker 00: But if you look at the page that they actually cited, 84365, which you were looking at the technical document a moment ago, there's actually, again, no reference to the TSF property store. [00:24:52] Speaker 00: The actual application that's referenced there is even another application, the speech tip. [00:24:57] Speaker 00: And if you look at the district court's decision, the district court actually said, I reviewed those documents. [00:25:02] Speaker 00: and didn't see the TSF property store. [00:25:04] Speaker 00: So nowhere in the infringement contentions did they identify the TSF property store. [00:25:10] Speaker 00: And in fact, in the documents, they don't call out the TSF property store. [00:25:14] Speaker 00: Yet we were supposed to know and figure out based on that disclosure that it was the TSF property store that was at issue. [00:25:22] Speaker 00: But the local rules are very clear. [00:25:24] Speaker 00: The local rules 120C requires the claim chart to identify specifically where each element of each asserted claim is found within each accused device. [00:25:35] Speaker 00: And they just didn't do it. [00:25:39] Speaker 00: And there's no question that the TSF property store is all they are accusing now. [00:25:44] Speaker 00: of including the accused link data. [00:25:46] Speaker 00: We took their expert's deposition. [00:25:47] Speaker 00: He admitted it. [00:25:48] Speaker 00: That's at A4002. [00:25:51] Speaker 00: They admitted it in the oral argument as well. [00:25:53] Speaker 00: So unless the court is going to find that there was an abuse of discretion in failing to allow them to add the TSF property store, they cannot prove infringement here. [00:26:03] Speaker 00: And, Your Honor, we talked a lot about diligence. [00:26:05] Speaker 00: And Chief Justice Prost mentioned the 66 hours of source code review. [00:26:11] Speaker 00: That source code review had nothing to do with the motion to amend to add the TSF property store. [00:26:17] Speaker 00: That was a second motion to amend that they tried a second time to add the DOE. [00:26:22] Speaker 00: In the actual motion to amend the infringement contentions to add the TSF property store, there was absolutely no showing of diligence. [00:26:32] Speaker 00: Absolutely none whatsoever. [00:26:33] Speaker 00: They did not even try to make a showing of diligence because they took the position that they didn't need to show diligence. [00:26:39] Speaker 00: So there is absolutely no finding. [00:26:40] Speaker 00: If you look at the motion that they actually filed to amend... And they took the position that they didn't need to show diligence because... Their argument was that even though the rule says you need to timely file a motion to amend. [00:26:54] Speaker 00: and the rule says that one of the grounds that may support an amendment is a new claim construction, they took the position that may was shall. [00:27:03] Speaker 00: So that even though the rule said timely and may says may, they took the position that if there's a new claim construction, they have the right no matter what. [00:27:11] Speaker 00: And the court said, no, you need to prove diligence. [00:27:14] Speaker 03: Well, you have the right, and there are two separate questions. [00:27:16] Speaker 03: One is they have the right, I mean, I think they have the right to file an amended complaint. [00:27:20] Speaker 03: Absolutely. [00:27:21] Speaker 03: It's simply a matter of whether or not they find the file doesn't timely matter. [00:27:24] Speaker 00: Correct. [00:27:25] Speaker 00: That's absolutely right. [00:27:26] Speaker 00: And if you look at the motion, which is actually included within the record. [00:27:29] Speaker 00: What page? [00:27:30] Speaker 00: Yes. [00:27:36] Speaker 00: The plaintiff's motion to amend is at A3186. [00:27:43] Speaker 00: And if you look at 83186, it's a very short motion. [00:27:47] Speaker 00: Absolutely no findings, no evidence whatsoever of diligence. [00:28:03] Speaker 02: Do I understand correctly that the Western District of Washington looks to the Northern District of California's interpretation of its own rules for purposes of informing its interpretation of its rules? [00:28:16] Speaker 00: Yes, Your Honor. [00:28:17] Speaker 00: It was basically adopted from the Northern District of California rules. [00:28:21] Speaker 02: And under the Northern District, it's very precise that the mere fact that you might be surprised by a course claims instruction is not enough to justify on its own [00:28:31] Speaker 00: That's right, Your Honor. [00:28:33] Speaker 00: I mean, if you look at OT micro, which obviously this court construed the Northern District of California rules, absolutely clear that it's a two-step. [00:28:40] Speaker 00: I mean, at the end of the day, it's really a two-step process. [00:28:43] Speaker 00: You need to show diligence. [00:28:45] Speaker 00: And if you get over the hurdle of diligence, then you have the prejudice factor. [00:28:49] Speaker 00: Here the court found there was absolutely, there was just no diligence. [00:28:52] Speaker 00: They never got to the second factor, just like the court did in O2 micro. [00:28:56] Speaker 00: And the reason why is very simple. [00:28:57] Speaker 00: They put in no evidence of diligence. [00:28:59] Speaker 00: They just absolutely didn't. [00:29:00] Speaker 00: They didn't try to. [00:29:01] Speaker 00: They put no evidence in. [00:29:02] Speaker 00: They made no argument in their briefs. [00:29:04] Speaker 00: Zipped. [00:29:05] Speaker 00: Nothing. [00:29:05] Speaker 00: And so therefore the court found without showing why did you wait three months until after the Markman to file your motion. [00:29:12] Speaker 00: Why did you wait 19 months until after they got our claim construction, proposed claim constructions, where we laid out linked data, what we meant and what we believed it meant and the court adopted it. [00:29:22] Speaker 00: Nothing. [00:29:23] Speaker 00: No diligence. [00:29:23] Speaker 00: Zero. [00:29:24] Speaker 00: And that's why it was very easy for the court to say you violated our local rules. [00:29:28] Speaker 00: You didn't meet it. [00:29:29] Speaker 00: You didn't show why it was timely and therefore disallowed [00:29:33] Speaker 00: and disallowed the amendment. [00:29:36] Speaker ?: Simple. [00:29:37] Speaker 00: So we think, Your Honor, this is an abuse of discretion standard. [00:29:41] Speaker 00: And given their failure to meet their burden, if it's their burden to prove diligence, we don't think there was an abuse of discretion. [00:29:47] Speaker 00: And therefore, we think it clearly should affirm. [00:29:51] Speaker 00: Your Honor, obviously, I have five minutes to go. [00:29:53] Speaker 00: There are several additional issues that are on appeal. [00:29:57] Speaker 00: I don't know if there was any that were of particular interest to the court. [00:30:01] Speaker 00: Otherwise, we obviously would stand on our papers, given the heightened standard here. [00:30:08] Speaker 00: Great, thank you. [00:30:16] Speaker 03: that your friend raised with regard to the status of the 101 invalidity contention. [00:30:23] Speaker 03: So I assume you don't have an issue hypothetically if we were to agree on the infringement that since there's no counterclaim, those claims go down on infringement but not on invalidity. [00:30:37] Speaker 01: Your Honor, their answer in counterclaim, they did assert counterclaims. [00:30:43] Speaker 01: The record doesn't have a full [00:30:46] Speaker 01: version of their answer. [00:30:47] Speaker 01: So I can't confirm right now whether they did a counterclaim on it. [00:30:51] Speaker 02: But the motion for summary judgment was just for non-infringement, was it not? [00:30:55] Speaker 01: Yes, well, yes, Your Honor. [00:31:00] Speaker 03: But there had been a prior note as well. [00:31:02] Speaker 03: The motion for summary judgment of non-infringement covered all claims, including the 608? [00:31:07] Speaker 01: It only covered the claims that were then asserted, that were still live. [00:31:12] Speaker 01: So there had been a prior motion for summary judgment much earlier in the case. [00:31:19] Speaker 01: But I think I understand where your honors are going. [00:31:23] Speaker 01: We do agree that linked data is in those claims. [00:31:25] Speaker 01: So I think if the court goes that route, vacating the 101 issue should resolve that. [00:31:36] Speaker 01: But I do want to respond here. [00:31:38] Speaker 01: to the idea that no showing of diligence made zero zip as he characterized it. [00:31:42] Speaker 01: That's just not true. [00:31:44] Speaker 01: A showing of timeliness was made, and that is the terminology used in the local rules and why we used it. [00:31:49] Speaker 01: And that timeliness, there was nothing categorical about the time that had passed, what they call three months, that reflected lack of timeliness. [00:31:59] Speaker 01: We showed why it was timely. [00:32:01] Speaker 01: We showed that the parties had agreed to stay any issues so that there was nothing [00:32:08] Speaker 01: prompting any more urgency than that time frame. [00:32:11] Speaker 01: We showed that we had met and conferred during that time. [00:32:14] Speaker 01: The court had no basis on which to claim, in light of all that, that it was somehow untimely when there was so much time left in the schedule. [00:32:23] Speaker 01: When there were 15 minutes. [00:32:23] Speaker 03: Did you believe that timeliness is weighed or assessed based on whether or not there's prejudice to the other side? [00:32:30] Speaker 03: What criteria does one use for whether something is timely or untimely? [00:32:34] Speaker 01: Well, here, because there was no expressed time set by the rules, timeliness has to be a reasonableness sort of consideration. [00:32:41] Speaker 01: And that has to take into account [00:32:43] Speaker 01: the circumstances, which is that the parties agreed. [00:32:46] Speaker 01: We're going to do this right. [00:32:48] Speaker 01: We're going to not have discovery and deadlines during this time while you're amending and while we're summary judging. [00:32:53] Speaker 01: It's pending. [00:32:54] Speaker 01: There were 15 months before Microsoft's rebuttal report on non-affringent was going to be due. [00:33:03] Speaker 01: So there was just nothing requiring, say, an amendment within a week or two weeks or whatever it was. [00:33:09] Speaker 01: it wasn't clear what standard the district court was using to judge time limits or diligence there. [00:33:15] Speaker 01: And if it was going to require an accounting of the time, how every day or every week was spent, that's a requirement that was not stated in the rules and that we never had an opportunity to do if that's what the court wanted. [00:33:29] Speaker 01: Microsoft characterized [00:33:37] Speaker 01: CSF and other things as multiple applications. [00:33:40] Speaker 01: There's no record support for that. [00:33:42] Speaker 01: The only thing in the record is discussing the differences between these things, calls them different programming interfaces. [00:33:47] Speaker 01: And so that's different modules of a program. [00:33:50] Speaker 01: Nothing calls them separate applications. [00:33:52] Speaker 01: And their claim that the CSF property store [00:33:56] Speaker 01: was not disclosed in that it's baffling because the TSF Property Store is the memory of the tech services framework, which is the very first thing identified as the Interface Application Program. [00:34:08] Speaker 03: Thank you. [00:34:08] Speaker 03: Thank you. [00:34:09] Speaker 03: We thank both counsel and the case system.