[00:00:01] Speaker 03:
Our next case is Avid Technology Inc.

[00:00:03] Speaker 03:
versus Harmonic Inc.

[00:00:04] Speaker 03:
15-1246.

[00:00:35] Speaker 03:
Mr. Kostanis, we're ready when you are.

[00:00:36] Speaker 02:
Thank you, Your Honor.

[00:00:38] Speaker 03:
And I see that, uh, Counselor, you reserved, uh, three minutes of your time for rebuttal.

[00:00:42] Speaker 03:
I had.

[00:00:43] Speaker 03:
Correct.

[00:00:52] Speaker 02:
You may proceed.

[00:00:53] Speaker 02:
Yes, may it please the Court.

[00:00:55] Speaker 02:
Um, there are two issues in this appeal, and if I could, Judge Rainier, I'd like to just take a moment to sketch out where I'd like to go with my argument this morning, and then you can tell me if you'd like me to go somewhere

[00:01:05] Speaker 02:
We will.

[00:01:09] Speaker 02:
We've met.

[00:01:12] Speaker 02:
The first and central issue on this appeal is resolved by the straightforward application of this court's rule that the scope of a prosecution disclaimer must be clear and unambiguous.

[00:01:24] Speaker 02:
The district court erred in this case by finding that... And unmistakable.

[00:01:27] Speaker 02:
I'm sorry?

[00:01:28] Speaker 02:
Clear and unmistakable.

[00:01:29] Speaker 02:
Clear, unmistakable, unambiguous.

[00:01:31] Speaker 02:
All of those words are used interchangeably.

[00:01:34] Speaker 02:
And what we don't have here is a clear, unambiguous, unmistakable disclaimer of a central controller that only does one thing, which is to identify the location of data.

[00:01:46] Speaker 02:
And if I could sort of, the second place I'll go, by the way, is this.

[00:01:51] Speaker 04:
Is it a fair shorthand to say that acts as a central address repository and nothing more?

[00:01:58] Speaker 02:
access as long as we understand that access means the two things that i'm sorry acts of space as a central address repository that is what Judge Sleet held the disclaimer was was that we disclaimed that kind of central controller and if i could the the second point that i'll raise in a moment i hope will be the remedy for this prejudicial legal error in the instructions from the claim construction but if i could just zero in on

[00:02:27] Speaker 02:
Judge Sleet's claim construction order, and in particular the footnote one at page 89, and just we'll bridge over a little bit to page A-90, and this is in the back of the blue brief.

[00:02:41] Speaker 02:
We'll see in footnote one a block quote, and that block quote is from the prosecution history at page A-582 of this appendix.

[00:02:53] Speaker 02:
And what you will see from the prosecution history is

[00:02:57] Speaker 02:
the further, and this is halfway down in the block quote, further the claim system by virtue of the independent storage units, and that's the claim limitation we're talking about here, which had just been added in this filing, avoids using a central controller to access data.

[00:03:15] Speaker 02:
I'm sorry, I'm at the bottom of page A89, Judge Sleat's claim construction ruling in footnote one, and this is in the block quote.

[00:03:26] Speaker 02:
And then it goes on to say, in particular, storage units receive requests from one of the client systems for a segment of A5.

[00:03:34] Speaker 02:
Clients do not issue requests to a central controller that, in turn, one, my number, identifies storage units that store the data, and two, issues requests to storage units.

[00:03:47] Speaker 02:
And then if you look at the same page in Judge Sleet's own shorthand of what he has just read there,

[00:03:56] Speaker 02:
He says, in particular, the above prosecution statement, in particular, cannot use a central controller that identifies the storage unit on which data is stored in response to client requests.

[00:04:10] Speaker 02:
So what he has done, by what I think was perhaps an implicitish shorthand there, was to take out the essence of what a controller is, which is something that controls or manages, something that can issue a direction.

[00:04:23] Speaker 02:
And this was made lethal at trial because the evidence was unopposed that the accused product here, the client in the media grid accused product communicates directly with the content service.

[00:04:36] Speaker 02:
That can be found at page A2305 and that's out of the mouth of... But gets the address from whatever the central... It gets the address from a table and of course that has to happen.

[00:04:46] Speaker 04:
It doesn't have to come centrally.

[00:04:48] Speaker 04:
There could be local caches of all the addresses on each of the corners.

[00:04:53] Speaker 02:
It could be local but there are other aspects of this patent that make clear

[00:04:57] Speaker 04:
that just getting... Right, that the controller has to, whatever else it has to do, it has to do more than act as a central address repository.

[00:05:05] Speaker 04:
That's right, and that is our basic submission.

[00:05:07] Speaker 04:
Okay, and do I understand this right?

[00:05:11] Speaker 04:
You're arguing not so much that the proposed claim construction that you proposed about transit of the information through the controller is right, because that, I think, your argument is substantially weaker on.

[00:05:28] Speaker 04:
Rather, you're arguing that the claim construction given to the jury is wrong, even if yours is also wrong.

[00:05:36] Speaker 02:
Well, we have focused on the error of the district court's claim construction, and in particular, the amendment.

[00:05:42] Speaker 02:
I think that our claim construction was substantially correct, but I'm not here to defend that right now.

[00:05:48] Speaker 02:
I'm here to show the prejudicial legal error.

[00:05:50] Speaker 04:
It's entirely possible that the disclaimer would include...

[00:05:57] Speaker 04:
would also cover something that doesn't send the information from the storage unit through the controller to the client, as long as it does the two things that are on either side of the and clause in the crucial sentence.

[00:06:11] Speaker 02:
I suppose that's possible, but that's exactly the error here, and that is that those two limitations of the controller were not charged here.

[00:06:19] Speaker 04:
And just to jump ahead for a minute, you would be entitled to

[00:06:26] Speaker 04:
a new trial at a minimum, if you're right about that.

[00:06:29] Speaker 04:
And then the question.

[00:06:31] Speaker 04:
And that's actually my second issue, which is what's the remedy for this area.

[00:06:34] Speaker 04:
Right.

[00:06:34] Speaker 04:
And the jury did not, was not asked to and didn't separately say we find non-infringement on two independent grounds.

[00:06:41] Speaker 02:
That's right.

[00:06:41] Speaker 02:
I know no district judge who would give a special verdict that was claimed the limitation by claim limitation.

[00:06:48] Speaker 02:
So that certainly would be helpful here.

[00:06:50] Speaker 02:
And so what we have left here is the infiled limitation.

[00:06:54] Speaker 02:
Well, we're not done.

[00:06:55] Speaker 02:
Oh, no, I'm happy to talk some more about the quality of the evidence here, but quite frankly is... Well, it's not just the quality of evidence.

[00:07:03] Speaker 04:
There are two relevant passages that were relied on and that are the key to all of this on opposite sides of the same page in the Joint Appendix.

[00:07:16] Speaker 04:
One is the language about the controller, and then the other is the distinguishing of bold.

[00:07:22] Speaker 04:
What's your view of the language distinguishing goal?

[00:07:26] Speaker 02:
Right.

[00:07:26] Speaker 02:
And let me go on to that, because then we can flip to page A583 of the Joint Appendix and talk about that.

[00:07:32] Speaker 02:
But actually, maybe the first place to start is the last line of page 582, which is right after the definition of the central controller.

[00:07:40] Speaker 02:
And there's a new single sentence paragraph that says, each storage unit thus operates independently of the other storage units.

[00:07:48] Speaker 02:
So now the prosecutor,

[00:07:51] Speaker 02:
and the inventor had made clear they're talking about the new edition of independent and the claims there, the independent storage units.

[00:07:57] Speaker 02:
Now we turn over to 583.

[00:08:00] Speaker 02:
In contrast, neither the admitted prior art nor Boll nor Valhalla teaches this combination of limitations found in claim one as amended.

[00:08:10] Speaker 02:
What is that combination of limitations?

[00:08:13] Speaker 02:
That's all of the limitations that are set forth in this paragraph above the definition of central controller on 582.

[00:08:20] Speaker 02:
How do we know that?

[00:08:21] Speaker 02:
We know that because of the more particularly paragraph where he says, where the inventor and the attorney say, Boll is not relevant to the present invention.

[00:08:30] Speaker 02:
And they go on to say, in contrast, the present invention relates to a distributed storage system.

[00:08:36] Speaker 02:
That's in the preamble, that's an entirely different part of the claim, in which data for a file is distributed among multiple independent storage units.

[00:08:45] Speaker 02:
Boll's assignment of a client to a server

[00:08:48] Speaker 02:
through a centralized interface for its transaction is contrary to the claim limitations noted above.

[00:08:55] Speaker 02:
The whole point here is that BOL is not a distributed file storage system.

[00:08:59] Speaker 02:
Each file is on one server in BOL.

[00:09:03] Speaker 02:
And that's what the inventors are distinguishing away here.

[00:09:06] Speaker 02:
But at the very least, what we have here is something that's not clear, not unambiguous, not the terminology, judge rating of which you used, unmistakable.

[00:09:15] Speaker 02:
It's certainly not unmistakable because it's not talking about

[00:09:18] Speaker 02:
independent storage units.

[00:09:20] Speaker 02:
Now, if I could move on to the question of what the remedy might be if we are correct on this claim construction argument.

[00:09:31] Speaker 02:
With regard to this limitation, the evidence is clear.

[00:09:35] Speaker 02:
There is no central controller.

[00:09:37] Speaker 02:
You can look at page A2305.

[00:09:38] Speaker 02:
That's Dr. Levy, their own expert.

[00:09:42] Speaker 02:
He's asked by Mr. Yoon.

[00:09:44] Speaker 04:
Can you remind me, does the other side contest the proposition that

[00:09:49] Speaker 04:
if the central controller has to, it doesn't have to do any more than act as a central address repository that that claim element is met.

[00:09:59] Speaker 02:
I don't see that in their briefs, but I think that's a question better asked of my friend.

[00:10:03] Speaker 02:
But I will just point you to A2305 where Dr. Levy has asked, does the client in the media grid communicate directly with the content server?

[00:10:12] Speaker 02:
Answer, yes.

[00:10:14] Speaker 02:
That means it's not a central controller under the correct definition.

[00:10:17] Speaker 02:
So that claim limitation is met.

[00:10:19] Speaker 02:
There's much more evidence, and it's summarized in our brief, Your Honor, but that's the one that I wanted to highlight for you in my limited time this morning.

[00:10:28] Speaker 02:
Now we come to the in-files limitation, which was the only other ground on which my friends defended our claim of infringement at trial.

[00:10:36] Speaker 01:
Can I ask you a question?

[00:10:37] Speaker 01:
Yes.

[00:10:37] Speaker 01:
This is a little bit before you get into that issue, but what if we think that Judge

[00:10:44] Speaker 01:
was correct in denying your Jamal on the infiles issue.

[00:10:49] Speaker 01:
Do you need a new trial, even though?

[00:10:51] Speaker 01:
Yes.

[00:10:52] Speaker 01:
And why?

[00:10:52] Speaker 01:
And how is that consistent?

[00:10:54] Speaker 01:
Go ahead and answer that question.

[00:10:56] Speaker 02:
If you finish your question, I think you might be asking about why, Mark.

[00:10:58] Speaker 01:
I was just going to say there's some cases like Verizon Services Corp versus Cox Fibernet, for example, where because there was an independent ground for affirming the jury verdict,

[00:11:11] Speaker 01:
We did not remand for a new trial.

[00:11:14] Speaker 02:
So we've got a black box verdict.

[00:11:16] Speaker 02:
We don't know which limitation or limitations was found to be not met by this jury.

[00:11:23] Speaker 02:
We have a prejudicial legal error in the first part of the instruction.

[00:11:27] Speaker 02:
With regard to the in-files limitation, it seems then that it's the burden on my friend on the other side to show that it's harmless error.

[00:11:35] Speaker 02:
The only way they could show harmless error is to show that no reasonable jury could have found

[00:11:40] Speaker 02:
the in-files limitation to be met.

[00:11:43] Speaker 02:
In our case, it's of course exactly the opposite.

[00:11:45] Speaker 02:
The only reading of the in-files limitation is that these are in-files, because files are not physical things, but they are a virtual construct that can leap across the various storage units.

[00:12:00] Speaker 02:
That's very clear from the specification.

[00:12:03] Speaker 02:
But the case that my friend on the other side cited was a case from the early years of this court, Weimar against Rollform.

[00:12:12] Speaker 02:
And that has to do strictly with whether we're entitled to JMOL, or at that time it was called JNOV.

[00:12:18] Speaker 02:
If, as Weimar says, Weimar versus Rollform says, if we can't show that we're entitled on both grounds, then we can't get JMOL or JNOV.

[00:12:27] Speaker 02:
But what we can get because of the prejudicial legal error is a new trial.

[00:12:31] Speaker 03:
Did you ever object at trial harmonics

[00:12:33] Speaker 03:
evidence through the testimony and as expert concerning the planned and ordinary meaning of infiles?

[00:12:40] Speaker 02:
Do we object to the testimony?

[00:12:42] Speaker 02:
No, we did not.

[00:12:43] Speaker 02:
We put in our own testimony thinking that the jury would properly get to the result that we think it might have been.

[00:12:49] Speaker 02:
How about the jury instruction?

[00:12:50] Speaker 02:
The jury instruction, we did propose, we suggested that the planned and ordinary meaning should control.

[00:12:56] Speaker 02:
But you didn't object.

[00:12:57] Speaker 02:
Well, we also proposed, if I could, Your Honor, we also proposed an alternative construction.

[00:13:02] Speaker 02:
They proposed a construction as well.

[00:13:04] Speaker 02:
But no, we actually proposed that it be played in ordinary meaning.

[00:13:08] Speaker 02:
But our argument here, Judge Rainier, is not a claim construction argument.

[00:13:12] Speaker 02:
It is a sufficiency of the evidence argument.

[00:13:14] Speaker 02:
It is that their evidence does not show the presence of the in-files limitation.

[00:13:19] Speaker 02:
And if I could just go a little bit into detail on that, and I'll take 30 seconds, I hope, to just point you to

[00:13:27] Speaker 02:
The and wherein for each file, the segments and the redundancy information for each segment are distributed among the plurality of storage units.

[00:13:35] Speaker 02:
That is the part that my friend on the other side and his evidence completely ignored.

[00:13:39] Speaker 02:
They treated a file as though it is a physical thing that has to reside on a single storage unit, and it's not.

[00:13:46] Speaker 02:
A file can be in segments that are distributed across the different storage units, and the file is the combination of those things together.

[00:13:55] Speaker 02:
And if you want to see the evidence that proves that under the only plain and ordinary reading of this language that we should prevail, it's again Dr. Levy, page A2327 to A2328, where he says that those are files, and the files have segments that are distributed across.

[00:14:15] Speaker 02:
I've got a little bit of time left for rebuttal.

[00:14:17] Speaker 02:
I thank the court's indulgence.

[00:14:19] Speaker 03:
No, you used up all your time, but I'll give you... Did he have time left?

[00:14:29] Speaker 05:
I feel as if I just saw a David Copperfield performance in Las Vegas, because in the waning moments on the infiles issues, counsel did ledger domain that would turn precedent on appellate review of jury verdicts upside down.

[00:14:51] Speaker 05:
When Judge Stoll asked about infiles, counsel said, well,

[00:14:56] Speaker 05:
to affirm on that ground, you'd have to rule that no reasonable juror could have found against this.

[00:15:05] Speaker 05:
That doesn't even make sense.

[00:15:07] Speaker 01:
I don't think that's what he was saying.

[00:15:09] Speaker 01:
He was talking about a trial and whether he would be a remian for a new trial.

[00:15:14] Speaker 05:
But this is an alternative ground for affirming.

[00:15:17] Speaker 05:
And the burden is not the appellees to show that no reasonable juror could have ruled against them.

[00:15:25] Speaker 05:
It is the appellants.

[00:15:26] Speaker 05:
to show that there was no substantial evidence to support the jury verdict.

[00:15:32] Speaker 04:
That would be their burden to secure a judgment as a matter of law of infringement from us.

[00:15:39] Speaker 04:
That's not their burden to secure a new trial when there has been a prejudicial error of instruction on the other claim element and on that element.

[00:15:52] Speaker 04:
non-infringement is necessary as a matter of law.

[00:15:56] Speaker 04:
And we have no idea if that element was the only one that the jury agreed with you on or whether they did on both.

[00:16:04] Speaker 05:
No, Your Honors, it's often the case with review of a jury verdict.

[00:16:07] Speaker 05:
But here, there were two grounds litigated throughout.

[00:16:11] Speaker 05:
There were two grounds that were the basis of the Jamal motion.

[00:16:15] Speaker 05:
And there were two grounds briefed here.

[00:16:17] Speaker 05:
And I'd like to turn to in files first, if I may.

[00:16:20] Speaker 05:
It got very little play because

[00:16:22] Speaker 05:
The standard of review is substantial evidence, not de novo review.

[00:16:27] Speaker 05:
So I can understand why an appellant wouldn't want to do that first.

[00:16:31] Speaker 05:
There was substantial evidence before the jury to support the conclusion that media grid, Harmonic's product, does not store data on the servers in files.

[00:16:42] Speaker 05:
Remember, the claim language says, quote, wherein the data is stored on the plurality of storage units in files, close quote.

[00:16:52] Speaker 05:
Your honors will recall from the prosecution history that the examiner rejected the application on this ground.

[00:17:00] Speaker 05:
The originally filed claims involved segments, and the examiner held those as unpatentable in view of the prior art, namely the Vahalia patent, which was for video file servers.

[00:17:16] Speaker 05:
That's at A4287-91.

[00:17:19] Speaker 05:
In response, AVID amended the claims in two respects.

[00:17:25] Speaker 05:
It removed the language about saving segments on the storage unit's servers.

[00:17:31] Speaker 01:
Would you agree that there's a difference between the content files, which are the actual original movie files, and the files that are contemplated by the in-files limitation?

[00:17:42] Speaker 05:
Absolutely, Your Honor.

[00:17:43] Speaker 05:
You're reading it correctly.

[00:17:44] Speaker 05:
And second, AVID added the requirement

[00:17:47] Speaker 05:
that the segments be stored in files on the storage units.

[00:17:52] Speaker 05:
That's in the record at 4310 to 15, 1927 and 2278.

[00:17:58] Speaker 05:
As a result, that meant that under these patents, it is insufficient to store the segment on the storage unit.

[00:18:07] Speaker 05:
The segment must be stored in a file.

[00:18:10] Speaker 05:
I thought I heard counsel say, I may have misheard, that they did proffer a construction of that.

[00:18:16] Speaker 05:
I didn't try the case at all, my colleague did, but I didn't see that in the record that the court considered a construction of infiles.

[00:18:24] Speaker 05:
I thought both sides agreed it was an ordinary term for the jury to apply.

[00:18:28] Speaker 01:
How did the infiles limitation during prosecution history, that limitation was added?

[00:18:33] Speaker 01:
Do you know how it got around Vahalia, the prior?

[00:18:37] Speaker 05:
Yes, because Vahalia allowed the user to store data in segments, or as we call them, slices.

[00:18:45] Speaker 05:
And that's why the examiner rejected the claim.

[00:18:48] Speaker 05:
So to get around that, if you look at the red line in the prosecution history, they marked out segments and they put in files.

[00:18:56] Speaker 05:
So that wasn't enough to get them past the examiner.

[00:19:00] Speaker 05:
The evidence before the jury.

[00:19:02] Speaker 04:
Can I just ask, there's a description somewhere, maybe it's in cross-examination, quoting one of your documents that says,

[00:19:11] Speaker 04:
the slices are stored in files.

[00:19:15] Speaker 04:
It was a marketing document, correct?

[00:19:17] Speaker 04:
Right, and is that just incorrect?

[00:19:21] Speaker 04:
It was marketing talk that the jury had.

[00:19:24] Speaker 04:
Every once in a while marketing is accurate, so a question is whether... You must have had different clients tonight, is your honor.

[00:19:32] Speaker 04:
It was before the jury.

[00:19:33] Speaker 04:
The jury had the brochure.

[00:19:35] Speaker 04:
They also had

[00:19:37] Speaker 04:
And I want to follow up on something that continues to confuse me that I think Judge Stoll asked about.

[00:19:45] Speaker 04:
And maybe you can just clear this up.

[00:19:50] Speaker 04:
It seems to me there's one possible application of the term file, and that's the content file, what the client would recognize as a file.

[00:20:00] Speaker 04:
And then there's another possibility, namely that the set of storage units

[00:20:06] Speaker 04:
organizes its memory in something that it regards as files.

[00:20:14] Speaker 04:
When I looked at the testimony that your brief cited for your witness having said, no files, no files, it was all about how the storage units, your content servers, is that what they're called?

[00:20:28] Speaker 04:
Yes.

[00:20:29] Speaker 04:
Content servers.

[00:20:30] Speaker 04:
don't recognize the content file.

[00:20:33] Speaker 04:
That is the one that the client would understand as a file.

[00:20:35] Speaker 04:
I did not see anything cited for the idea that your content servers don't organize what they do in its own filing system.

[00:20:45] Speaker 05:
Can you clarify this?

[00:20:48] Speaker 05:
Oh, yes.

[00:20:48] Speaker 05:
I understand the question.

[00:20:50] Speaker 05:
You're right.

[00:20:50] Speaker 05:
But there was ample testimony from both sides that the content servers do not store the data in files.

[00:20:59] Speaker 05:
They store it in slices or segments, which are the same thing.

[00:21:03] Speaker 05:
The content files that you're talking about, that could be a video clip of a kid's graduation or an audio clip.

[00:21:11] Speaker 05:
Those are on the client device.

[00:21:13] Speaker 05:
That's not what goes on the content server.

[00:21:15] Speaker 05:
They share the word file, but it's a totally different thing.

[00:21:19] Speaker 05:
And the media grid content servers don't know anything about what that file is.

[00:21:24] Speaker 04:
Right, so but if each storage unit

[00:21:28] Speaker 04:
has its own filing system and it calls the slices a file.

[00:21:34] Speaker 04:
Why is it that when you read the claim language it says the data is stored on the plurality of storage units in files?

[00:21:44] Speaker 04:
Does that simply mean as I guess gradually came to believe and you can correct me

[00:21:50] Speaker 04:
that this whole dispute is about whether what has to be in one of those files, more than one slice plus redundancy, not whether the thing is stored in files.

[00:22:02] Speaker 05:
No, your honor, both assumptions in your question respectfully are contradicted by the record in the prosecution history.

[00:22:10] Speaker 05:
It is not the case that the content servers arrange things in files or have a file system.

[00:22:17] Speaker 05:
The content director

[00:22:19] Speaker 05:
in media grid is the central controller that assigns the slices to the different content servers.

[00:22:27] Speaker 05:
So this is not at all something where there's a file structure on the content server.

[00:22:36] Speaker 05:
But you don't need my word for it.

[00:22:37] Speaker 04:
The record is polluted.

[00:22:41] Speaker 04:
OK, let's go with... Put aside the business about multiple.

[00:22:46] Speaker 05:
When you say, put it aside, an S at the end of the word counts for something.

[00:22:51] Speaker 05:
It is a plurality.

[00:22:52] Speaker 05:
It is not a singularity.

[00:22:55] Speaker 04:
What I'm trying to do is understand whether, as your red brief argues, you have a freestanding contention that there is no storage of anything in files in your content servers.

[00:23:10] Speaker 05:
Correct.

[00:23:11] Speaker 04:
Where is the testimony for that?

[00:23:12] Speaker 05:
A2329, 2326.

[00:23:16] Speaker 05:
in 2330.

[00:23:18] Speaker 05:
Let's go to the videotape.

[00:23:20] Speaker 05:
Our expert Dr. Levy.

[00:23:22] Speaker 05:
Sir, why do you disagree with, bear with me on this, Dr. Ghanda Harizadeh, I'm going to call him Dr. G, why do you disagree with Dr. G with regards to his opinion that the media grid system stores files?

[00:23:38] Speaker 05:
Answer, Dr. G seems to identify the content file as the files that are stored on the content servers.

[00:23:45] Speaker 05:
But in fact,

[00:23:46] Speaker 05:
that client file or content file is not what's stored on the content server.

[00:23:52] Speaker 05:
Question, what's stored on the content server answer the slices?

[00:23:57] Speaker 04:
None of that, I guess this is where I want to make sure we at least understand each other.

[00:24:03] Speaker 04:
It seems to me that what this says is the content file doesn't appear as a file on the storage unit.

[00:24:10] Speaker 04:
It does not say that the content servers aren't storing their slices in their own files.

[00:24:15] Speaker 05:
But the next quote that I want to read to you does.

[00:24:18] Speaker 05:
A 2318.

[00:24:19] Speaker 05:
Dr. Levy testified that the content servers do not store data in files, have no knowledge of content files, and known only slices.

[00:24:30] Speaker 05:
And guess who agreed?

[00:24:31] Speaker 05:
Dr. G.

[00:24:33] Speaker 05:
A, 1964, quote, now you agree, sir, that the content servers are storage units for storing slices, correct?

[00:24:44] Speaker 05:
Answer, that's right, yes.

[00:24:46] Speaker 05:
Now, Dr. G went on to say he thought that satisfied the in-files requirement, and that's why God created the jury.

[00:24:54] Speaker 05:
They had the evidence from both sides, and they decided it.

[00:24:57] Speaker 05:
Let me turn briefly to independent storage units.

[00:25:01] Speaker 05:
Twice.

[00:25:03] Speaker 05:
My opponent read to you, he read from the construction order, and then when Judge Taranto asked him about the prosecution disclaimer, he read from that.

[00:25:12] Speaker 05:
But both times he omitted the prize inside the cracker jacks.

[00:25:20] Speaker 05:
In the record page 4318, having had the application rejected by the examiner because of bowl, which uses a controller, they said

[00:25:31] Speaker 05:
Quote, and this is the part you didn't hear from Avid.

[00:25:34] Speaker 05:
More particularly, BOL is not relevant to the present invention.

[00:25:39] Speaker 05:
BOL deals with distributing transaction requests for multiple clients to multiple servers.

[00:25:47] Speaker 05:
In BOL, a client asks a centralized interface 24 to provide access to a server and receives from this interface an identity or connection data for a server

[00:26:01] Speaker 05:
to which the client is assigned.

[00:26:03] Speaker 05:
The client then performs its transaction with the assigned server.

[00:26:08] Speaker 05:
In contrast, the present invention relates to distributed storage system in which data for file is distributed among multiple independent storage units.

[00:26:21] Speaker 05:
And here comes just one more sentence.

[00:26:23] Speaker 01:
All right, go ahead.

[00:26:26] Speaker 05:
Go ahead.

[00:26:26] Speaker 05:
Bowles' assignment of a client to a server

[00:26:30] Speaker 05:
through a centralized interface for its transaction is contrary to the claim limitations noted above.

[00:26:38] Speaker 05:
I read that without the typos.

[00:26:40] Speaker 01:
So let's say that I understand your argument.

[00:26:42] Speaker 01:
OK.

[00:26:43] Speaker 01:
But what about claim 19?

[00:26:45] Speaker 01:
And in your red brief on page 40, you say there's a significant difference between the passive central database and the 309 patent claim 19 and the active central controller that AVID disclaimed.

[00:26:58] Speaker 01:
What is this difference?

[00:27:00] Speaker 01:
If you're talking about their content director, which... Well, I sit there and I look at claim 19, and to me, it undermines any notion that there's a clear and unmistakable disclaimer.

[00:27:11] Speaker 01:
And so what's your response to that?

[00:27:13] Speaker 01:
Because claim 19 seems to claim directly what you say was disclaimed.

[00:27:17] Speaker 05:
But if you have a claim that's repudiated by the statement made to the examiner in order to obtain approval of the patent, you can't just ignore that disclaimer.

[00:27:31] Speaker 01:
So your view is that that later claim, that it's in a continuation, that that claim, which then later claims, let's say it later does, in fact, claim exactly what you contend they disclaim.

[00:27:44] Speaker 01:
There's no way that they can do that.

[00:27:45] Speaker 01:
There's no public notice at all that that's what's been claimed, even though it's plain in the language of the claim itself.

[00:27:52] Speaker 05:
But the claim wouldn't have been approved.

[00:27:54] Speaker 05:
That's why the disclaimer.

[00:27:55] Speaker 05:
It was allowed, wasn't it?

[00:27:57] Speaker 05:
It was allowed because they said, unlike Boll,

[00:28:00] Speaker 05:
we don't have to go to a centralized device to get the address.

[00:28:05] Speaker 01:
That was much earlier prosecution history, wasn't it?

[00:28:09] Speaker 05:
I don't know sequentially when it was met, Your Honor.

[00:28:12] Speaker 05:
But I know that that color, that got the examiner to reverse himself.

[00:28:17] Speaker 05:
And if you look, the key diagram here actually is in Boal.

[00:28:22] Speaker 05:
Its figure, and I don't usually do these charts because I get in trouble, but I believe it's Boal figure one.

[00:28:29] Speaker 05:
And if you look at Boll figure one in the patent, it will look kind of like the media grid directed to you.

[00:28:37] Speaker 05:
What you see in Boll figure one is client application.

[00:28:41] Speaker 04:
Can I just cut to what I think is the central point?

[00:28:44] Speaker 04:
They read the paragraph in Boll, and I don't see why the language of the, not in Boll, but the paragraph you read about Boll from the prosecution history, as making a distinction about the number of

[00:28:59] Speaker 04:
servers that the client will deal with.

[00:29:04] Speaker 04:
They read it as saying, Boll says, we give you one.

[00:29:08] Speaker 04:
That's the one.

[00:29:09] Speaker 04:
The A server.

[00:29:10] Speaker 04:
All singular terms.

[00:29:13] Speaker 04:
And as long as that is one reasonable interpretation of that ground of distinction, then the standard for unmistakable, clear, blah, blah, blah, for finding a broader disclaimer based on Boll is not met.

[00:29:28] Speaker 04:
That, I think, is their point about that paragraph.

[00:29:31] Speaker 05:
It's wrong, Your Honor.

[00:29:33] Speaker 05:
That is their argument.

[00:29:34] Speaker 05:
That is based on their argument that Bull did not disclose a distributed storage system.

[00:29:40] Speaker 05:
So they read that paragraph that he doesn't want to read out to you.

[00:29:45] Speaker 05:
They read that as only applying to distinguish Bull because it did not have a distributed storage system.

[00:29:52] Speaker 05:
If you look at the patents at A3432,

[00:29:57] Speaker 05:
one lines 61 to 65 in the patent A3435 at 7, 15 to 24.

[00:30:07] Speaker 05:
That's the bold patent.

[00:30:09] Speaker 05:
And it shows you repeatedly that it uses a distributed storage system.

[00:30:14] Speaker 05:
So to try to explain away their concession to the examiner by saying, well, we weren't talking about the role of the server.

[00:30:21] Speaker 05:
We were just talking about distributed storage.

[00:30:23] Speaker 05:
Makes no sense.

[00:30:25] Speaker 05:
I've used up my time.

[00:30:26] Speaker 05:
Thank you very much.

[00:30:26] Speaker 05:
Thank you very much.

[00:30:32] Speaker 03:
Mr. Costanz, we'll restore your time to three minutes.

[00:30:42] Speaker 02:
Thank you very much, Your Honor.

[00:30:44] Speaker 02:
Let's start with the in-files limitation.

[00:30:48] Speaker 02:
I find it rather surprising that we're here talking about the HALIA,

[00:30:52] Speaker 02:
when the question is whether there was substantial evidence on the plain and ordinary meaning of the language that was presented to the jury.

[00:30:59] Speaker 02:
Vigilia wasn't part of that plain and ordinary meaning language.

[00:31:04] Speaker 02:
It wasn't part of the trial evidence in this regard.

[00:31:06] Speaker 02:
The question is, was there evidence that supports it?

[00:31:09] Speaker 04:
What's your view about what the evidence showed and what was in dispute about the, let's call it, the two possible locations of

[00:31:22] Speaker 04:
the word file, whether it's the storage system, filing system, if there is one or isn't one, or I guess... I think either satisfies the plain and ordinary meaning of the claim.

[00:31:33] Speaker 02:
And I think that's what this court's case law says with regard to plain and ordinary meaning.

[00:31:37] Speaker 04:
But for you to get more than a new trial, you need to say that they do not have evidence from which a jury could take this unconstrued claim language and say,

[00:31:52] Speaker 04:
No.

[00:31:54] Speaker 04:
This file system, at least on the storage side, doesn't do it.

[00:31:59] Speaker 02:
I think there is no evidence here that would allow the jury to narrow the claim to only the storage side.

[00:32:05] Speaker 04:
Besides the marketing document, is there any evidence that says or even would allow a jury to conclude that the slice in the storage system is not a

[00:32:18] Speaker 04:
file as the storage system would recognize the word file?

[00:32:24] Speaker 02:
I think I'm trying to count knots in there to make sure.

[00:32:26] Speaker 02:
You're asking me whether there's evidence that will support or that the evidence is clear that it will support our claim for JMOL on this limitation.

[00:32:35] Speaker 04:
Well, I'm asking, I guess I'm... Is there anything alternative?

[00:32:38] Speaker 04:
About the files in the storage system, files here being something that the storage system views as a file,

[00:32:48] Speaker 04:
not what the content, what the client would... I honestly, as I'm standing here, Judge Toronto, I don't know the answer to that question.

[00:32:57] Speaker 02:
The answer I would give you is twofold, though.

[00:33:00] Speaker 02:
One of which is to look at the testimony that Dr. Levy gave, where he says there is a content file or client file shown here with the segments numbered 1 through 5.

[00:33:09] Speaker 02:
This is A2327.

[00:33:12] Speaker 02:
And so that would be an example, like a movie.

[00:33:13] Speaker 02:
Correct, sir?

[00:33:14] Speaker 02:
Answer.

[00:33:14] Speaker 02:
That's right.

[00:33:15] Speaker 02:
Question.

[00:33:16] Speaker 02:
And in the graphics shown here, that movie is broken up into five slices.

[00:33:19] Speaker 02:
Answer, that's right.

[00:33:21] Speaker 02:
So he's testified about both files and slices being present there.

[00:33:24] Speaker 02:
And again, when you look at the written description of this patent, again, that probably shouldn't be an issue here on sufficiency.

[00:33:31] Speaker 02:
But a file is not a physical thing that's located in one place.

[00:33:35] Speaker 02:
It is across servers.

[00:33:37] Speaker 02:
And if you look at the written description at A3642, column 13, lines 20 to 22, and 3642, column 14,

[00:33:45] Speaker 02:
Lines 12 to 15.

[00:33:47] Speaker 02:
With regard to the independent storage units and central controller issue, I will simply comment that all of the problems with claim 19, as well as the disclosures of the embodiments of column 7, lines 35 to 39, disappear if you read the disclaimer in the limited way that we urge.

[00:34:08] Speaker 02:
If you read it my friend's way, then all of those problems, Judge Stoll, remain.

[00:34:12] Speaker 02:
Thank you again, Your Honor, for your indulgence.

[00:34:14] Speaker 02:
Thank you.