[00:00:11] Speaker 04:
Okay, our next case this morning is number 15-1403.

[00:00:38] Speaker 04:
Baseball Quick LLC versus MLB Advanced Media, Mr. Bollinger.

[00:00:45] Speaker 06:
Good morning.

[00:00:46] Speaker 06:
My name is James Bollinger.

[00:00:47] Speaker 06:
And if it pleases the court, what I'd like to do is, well, this case involves two appeals, one on provisional rights and another on the non-infringement holding by the district court.

[00:01:00] Speaker 06:
I want to jump to the non-infringement holding by the district court.

[00:01:02] Speaker 06:
And I want to start with a discussion regarding the district court's determination of the term

[00:01:08] Speaker 06:
deleting substantially all gain content, and what that term means in context to this patent.

[00:01:15] Speaker 02:
Can I first ask you what the relationship is between these two things?

[00:01:18] Speaker 02:
So with respect to the provisional rights determination, is it your argument that there was activity before the patent issued that was different in kind as it relates to infringement than after the patent issued?

[00:01:33] Speaker 06:
Absolutely.

[00:01:34] Speaker 06:
There were two periods of time.

[00:01:36] Speaker 02:
Well, I understand there are two periods of time, but the question is that there are two different categories of activity.

[00:01:42] Speaker 02:
So if, in fact, we were to find, for instance, I know you don't want us to, but if we were to find there was no infringement after the patent was issued and that the claim constructions were correct, what impact would that have on the provisional rights determination?

[00:01:58] Speaker 06:
Two different analysis altogether.

[00:02:00] Speaker 06:
The provisional rights involved a protocol

[00:02:05] Speaker 06:
preparing these condensed games that was different and changed when the patent issued.

[00:02:11] Speaker 06:
The defendants actually made some modifications after the issuance of the patent, and that's what they're relying on for the non-infringement.

[00:02:16] Speaker 02:
Well, I understand they made some modifications as it relates to the subjective argument, but was the protocol different as it relates to the accretion or deletion argument?

[00:02:29] Speaker 06:
No, it wasn't.

[00:02:31] Speaker 06:
I'm not positive of that, but I'm pretty sure it never really was an issue before the court.

[00:02:37] Speaker 06:
It hasn't been addressed by the court.

[00:02:39] Speaker 06:
But I don't know the answer to that off the top of my head.

[00:02:41] Speaker 06:
But I think you may be right.

[00:02:42] Speaker 06:
It might have been the same protocol.

[00:02:46] Speaker 04:
I thought it was different.

[00:02:47] Speaker 04:
I thought that before the protocol was to leave in every final pitch.

[00:02:51] Speaker 06:
That was clearly true.

[00:02:54] Speaker 06:
But I think the editing process that was applied

[00:02:58] Speaker 06:
And the distinction the district court made on the editing claim that I'd like on the deleting step, the district court actually found and ruled that deleting means in this context of this particular patent a three-part process.

[00:03:12] Speaker 06:
You make a second copy of the complete game.

[00:03:14] Speaker 06:
Then you erase the portions you're not interested in, the undesired portions.

[00:03:18] Speaker 06:
And then you remove the time gaps.

[00:03:21] Speaker 06:
And the interesting thing is that that construction was never proposed by either party.

[00:03:27] Speaker 06:
And in fact, what the defendant had proposed was something completely different.

[00:03:31] Speaker 06:
And if you look at their motion for summary judgment, you'll see that they were proposing the notion that deleting means destructive editing.

[00:03:39] Speaker 06:
And destructive editing is just the cutting and splicing of tape and moving things together to form a final condensed game that way.

[00:03:48] Speaker 06:
They said we were limited to that.

[00:03:50] Speaker 06:
And they submitted a declaration by Joseph Inzerillo, who is their employee but also

[00:03:56] Speaker 06:
a person responsible for their video editing process.

[00:03:59] Speaker 06:
And at paragraphs 16 through 18, and it's the appendix 39.59, he describes in very detailed terms about the destructive editing theory that he was proposing that deletion should be defined as, and contrasted it with the... Hold on a second.

[00:04:16] Speaker 04:
But the deletion language in the claim was added during the original prosecution, correct?

[00:04:23] Speaker 06:
A claim was canceled, and then a new claim was used that included the deletion language.

[00:04:27] Speaker 01:
So your original claim was claim eight, and it said leaving only.

[00:04:31] Speaker 01:
Exactly.

[00:04:31] Speaker 01:
And then a new claim said deleting.

[00:04:34] Speaker 04:
Exactly.

[00:04:35] Speaker 04:
And that change was made, was it not, to distinguish the prior art?

[00:04:40] Speaker 04:
No.

[00:04:41] Speaker 04:
No?

[00:04:41] Speaker 06:
It was a clarification.

[00:04:43] Speaker 06:
It was not involved in distinguishing prior art.

[00:04:46] Speaker 06:
And certainly, I think the original claim had been objected to as vague and ambiguous.

[00:04:54] Speaker 06:
And I think it was a claim that had some issues in terms of its clarity.

[00:05:00] Speaker 06:
And so the new attorney that came in, excuse me?

[00:05:02] Speaker 04:
Wasn't the claim rejected on the basis of prior art?

[00:05:07] Speaker 04:
And wasn't this change made to distinguish the prior art?

[00:05:12] Speaker 06:
No, it was projected on prior art.

[00:05:14] Speaker 06:
But it was not that change.

[00:05:16] Speaker 06:
A completely new claim was put in.

[00:05:19] Speaker 06:
And then new claims were amended later.

[00:05:21] Speaker 06:
And the basis for it went to an appeal.

[00:05:27] Speaker 06:
So it was never actually allowed by an examiner.

[00:05:31] Speaker 06:
But there was never an argument that the prior art doesn't show destructive deletion.

[00:05:37] Speaker 06:
The prior argument in getting this case allowed was directed to the notion of the content that was remaining versus the content that was removed.

[00:05:47] Speaker 06:
And that was the basis of gaining allowance, not the particular protocol or steps in the editing process by itself.

[00:05:55] Speaker 04:
Suppose hypothetically we were to disagree with your reading of the prosecution history and conclude that the deletion language was added

[00:06:04] Speaker 04:
to distinguish the prior art.

[00:06:06] Speaker 04:
Wouldn't that be a problem for you in the sense that here the Major League Baseball approach does not rely on deletion, but rather accretion?

[00:06:19] Speaker 06:
It's our position that deletion covers what Major League Baseball provides, whether it was added to avoid prior art or not.

[00:06:26] Speaker 06:
And the reason that is is because deletion in the digital world

[00:06:30] Speaker 06:
is understood to be the notion of excluding content, removing content from a file edited.

[00:06:38] Speaker 06:
When you delete a file on your computer, what you're doing, that information's not wiped out off the computer.

[00:06:45] Speaker 06:
That's still there.

[00:06:46] Speaker 06:
All you've now done is remove the pointer to that particular file.

[00:06:51] Speaker 06:
It's not a destructive process, as they've characterized leash in this claim.

[00:06:57] Speaker 04:
Forget the destructive process.

[00:07:01] Speaker 04:
If you accept my hypothetical about the reason for the amendment, there seems to have been some substantive difference between editing and deletion.

[00:07:11] Speaker 04:
And if that's the case, don't we have to construe deletion as meaning something different from editing?

[00:07:21] Speaker 06:
I disagree with that because it's not just editing.

[00:07:24] Speaker 06:
It didn't say edit the file.

[00:07:25] Speaker 06:
It said edit by leave only, which indirectly is the same thing as deletion.

[00:07:32] Speaker 06:
When you leave only, the other stuff is gone.

[00:07:35] Speaker 06:
So it has to go somewhere.

[00:07:37] Speaker 06:
It has to be removed.

[00:07:39] Speaker 06:
It has to be excluded.

[00:07:40] Speaker 06:
And when they were talking about leave-only deletion, they were talking about the content, not the medium it was on.

[00:07:47] Speaker 06:
They were talking about what was being retained and what was being excluded in the final condensed game.

[00:07:52] Speaker 02:
But the problem is that you have a method claim.

[00:07:56] Speaker 02:
And the method that you claim is first you create a program recording, and then you edit it by deleting from that existing program recording

[00:08:07] Speaker 02:
certain information, regardless of how you define what that certain information is.

[00:08:12] Speaker 02:
That's the method that you have claimed.

[00:08:15] Speaker 02:
So if what Major League Baseball is doing doesn't include those two steps, then how is there infringement?

[00:08:24] Speaker 06:
There is because they do practice deletion.

[00:08:27] Speaker 06:
That's the point I'm making.

[00:08:29] Speaker 06:
Persons skilled in this art understand deleting to mean

[00:08:33] Speaker 05:
the removal, exclusion of content.

[00:08:36] Speaker 05:
They presented their argument to the court.

[00:08:39] Speaker 05:
And the court said, that's borderline frivolous.

[00:08:41] Speaker 05:
But the court thought it was our argument.

[00:08:43] Speaker 02:
No, that was the construction argument that they said was borderline frivolous.

[00:08:46] Speaker 05:
That's exactly right.

[00:08:47] Speaker 05:
But that construction argument was that deleting is destroying.

[00:08:51] Speaker 05:
And that's how you are suggesting to me it should be construed.

[00:08:54] Speaker 05:
No, removing.

[00:08:56] Speaker 06:
Or excluding.

[00:08:58] Speaker 06:
That's what we believe it means.

[00:08:59] Speaker 06:
It means to exclude content from the final condensed game.

[00:09:04] Speaker 02:
That's the critical thing.

[00:09:06] Speaker 02:
What the court found that your opponent does is to take content as it's occurring and choose positive content that it wants to keep and to create the recording from.

[00:09:21] Speaker 02:
Isn't that the distinction that the court drew?

[00:09:23] Speaker 06:
Their expert, Mr. Inzerolo, testified that there's no difference between taking content and keeping it or removing content and ending up with the same thing.

[00:09:34] Speaker 02:
No difference with the end product, but you didn't claim the end product.

[00:09:38] Speaker 06:
But we did.

[00:09:39] Speaker 06:
The end product is what that editing step results in.

[00:09:43] Speaker 06:
It's not the editing step by itself is defined by what is left behind after you edit.

[00:09:50] Speaker 06:
It's an editing process.

[00:09:51] Speaker 01:
Even if the end products are the same, you agree that there's no infringement if those method steps aren't formed, right?

[00:09:58] Speaker 01:
Because it's a method claim.

[00:09:59] Speaker 06:
It's a method claim.

[00:10:00] Speaker 06:
There wouldn't be infringement unless there was a distinction.

[00:10:03] Speaker 06:
I mean, if there was a distinction between the steps that they do and what our patent covers.

[00:10:09] Speaker 06:
Our patent specification makes clear.

[00:10:11] Speaker 06:
that when you look at deleting, when you read the specification, it says, we edit to retain content.

[00:10:19] Speaker 06:
We include only those plays that are outcome-determinative.

[00:10:23] Speaker 06:
The word deleting is not in the specification.

[00:10:26] Speaker 06:
The notion of destructive deleting doesn't exist in the patent file history.

[00:10:30] Speaker 06:
The priority is being relied on.

[00:10:32] Speaker 06:
Destructive deletion, that's not worth talking about.

[00:10:35] Speaker 02:
The lower court rejected that.

[00:10:37] Speaker 06:
That's their argument.

[00:10:39] Speaker 06:
That's what they presented to the lower court as the definition of the lesion.

[00:10:42] Speaker 02:
No, the lower court rejected that.

[00:10:44] Speaker 02:
I understand that.

[00:10:45] Speaker 02:
And adopted a different definition of the lesion.

[00:10:47] Speaker 06:
Well, then there's something, and the question is, is who sponsored this definition the lower court came up with, and does the record support it?

[00:10:55] Speaker 06:
And the record doesn't support it.

[00:10:57] Speaker 06:
The record supports, if you look at our declaration.

[00:10:59] Speaker 02:
First of all, with respect to sponsorship, lower courts are free to adopt a construction

[00:11:04] Speaker 02:
that has not been offered by either party.

[00:11:06] Speaker 02:
It's not a pick from column A or pick from column B. Judge Malik, you're absolutely correct.

[00:11:11] Speaker 02:
All right, so is there support in the record and in the specification for the lower court's construction?

[00:11:17] Speaker 06:
There isn't.

[00:11:18] Speaker 06:
There's none.

[00:11:18] Speaker 06:
You look at the intrinsic record, there's nothing that supports a time gap removal.

[00:11:24] Speaker 06:
There's no such thing.

[00:11:25] Speaker 06:
It doesn't even look like it.

[00:11:26] Speaker 05:
I mean, there's no evidence that would even work.

[00:11:27] Speaker 05:
How do you remove time gaps?

[00:11:30] Speaker 05:
There's no way.

[00:11:31] Speaker 06:
Their expert said,

[00:11:33] Speaker 06:
That's not, nobody's proposed that.

[00:11:34] Speaker 06:
We have an expert of record saying there are two types of editing.

[00:11:40] Speaker 06:
One is destructive deletion, which is what the court rejected as borderline frivolous.

[00:11:45] Speaker 06:
And the other is this non-destructive process, which is basically what everybody else, everybody has done since the beginning of time, and what our claim covers.

[00:11:56] Speaker 02:
Notwithstanding the notion that- How do the accused products delete, in your view?

[00:12:02] Speaker 06:
It's what's, they start with a full game and as it's, they grab portions of the game and they put it into another record and their technical person on this, Din Mann, said that that's deletion.

[00:12:19] Speaker 06:
The stuff that's left behind is deleted from the final game because it's left behind.

[00:12:25] Speaker 04:
Let me just ask you a couple of questions before we run out of time about the other aspect of this, where the court construed the method claim of the patent to require the inclusion of the results of every final pitch.

[00:12:41] Speaker 04:
And the method as described by Major League Baseball method it uses does not do that.

[00:12:50] Speaker 04:
So why isn't that a legitimate ground for a finding of non-infringed

[00:12:55] Speaker 06:
It's to the extent that they practice a method that includes, embraces less than all final pitches.

[00:13:03] Speaker 06:
And they do.

[00:13:05] Speaker 06:
That is avoiding the claim, as construed right now, is literally infringed.

[00:13:09] Speaker 06:
That wasn't the basis of the court's ruling, though.

[00:13:12] Speaker 06:
And we have an argument.

[00:13:13] Speaker 06:
And the court, I think, has acknowledged the weight of the argument that it's infringing under the doctrinal equivalence.

[00:13:18] Speaker 06:
Because all they've done is drop a handful of final outs, so it has less than all final outs.

[00:13:25] Speaker 06:
And because of that, they are outside the scope of the claim.

[00:13:31] Speaker 02:
But a handful of final outs, isn't it true that only 15% or 15 out of 4,000 or something actually had all final outs?

[00:13:38] Speaker 06:
Well, that's the total number of games that included all final outs.

[00:13:42] Speaker 06:
But the games that don't have all final outs, there's 54 outs in a game.

[00:13:46] Speaker 06:
And there's a number of games that have 52, 51 outs.

[00:13:51] Speaker 06:
And so they've dropped a few of those to avoid that literal reading necessary of all final pitches is what the requirement is.

[00:14:00] Speaker 06:
And by doing that, they are practicing the invention, in our view, because they're indistinguishable.

[00:14:08] Speaker 06:
And so we have a doctrine of equivalence.

[00:14:09] Speaker 06:
And the court.

[00:14:10] Speaker 04:
Did you put in a declaration on the doctrine of equivalence?

[00:14:14] Speaker 04:
Yes.

[00:14:14] Speaker 04:
And what did it say?

[00:14:16] Speaker 06:
It said that the games are indistinguishable for these points, and it listed out particularized common features of the game and the editing step.

[00:14:25] Speaker 02:
But that was from the inventor, right?

[00:14:27] Speaker 02:
You didn't have any other expert?

[00:14:29] Speaker 06:
No, we did have an expert.

[00:14:30] Speaker 06:
We had two other experts.

[00:14:31] Speaker 06:
Chad Edwards was the expert on video.

[00:14:33] Speaker 06:
I'm running out of time.

[00:14:33] Speaker 02:
I was hoping to reserve some.

[00:14:34] Speaker 06:
But you didn't have an expert on DOE?

[00:14:36] Speaker 06:
You're not allowed to sit down when we have time.

[00:14:38] Speaker 06:
I know.

[00:14:39] Speaker 02:
You didn't have an expert on DOE, did you?

[00:14:41] Speaker 06:
Yes, we did.

[00:14:42] Speaker 06:
And it was the inventor.

[00:14:43] Speaker 06:
And the court accepted the competency of the inventor, but declined to accept the weight of the testimony because of particularized.

[00:14:51] Speaker 02:
Did the inventor's declaration do a limitation by limitation analysis of the claim?

[00:14:58] Speaker 06:
It looked at the editing step, which was the only limitation we were concerned with on doctrine of equivalence.

[00:15:02] Speaker 06:
All the other limitations are met.

[00:15:04] Speaker 06:
And it looked at it, examined the games before and after.

[00:15:08] Speaker 02:
How are all the other limitations met if they don't have every final pitch?

[00:15:14] Speaker 06:
Because all the other limitations include recording the full game, editing the game, to remove all other content.

[00:15:20] Speaker 06:
Substantially all other content.

[00:15:21] Speaker 02:
And they don't remove all other content, do they?

[00:15:24] Speaker 02:
They retain a lot more content than you do.

[00:15:27] Speaker 06:
No.

[00:15:27] Speaker 06:
No, they remove every non-final pitch.

[00:15:30] Speaker 06:
It's all gone.

[00:15:31] Speaker 06:
The only thing in their games is not our final pitches.

[00:15:34] Speaker 06:
They're just saying they have less than ours.

[00:15:36] Speaker 01:
But it says deleting substantially all game action other than final pitches.

[00:15:41] Speaker 01:
If they don't follow that, then there has to be particularized testimony on doctrine of equivalence on that particular limitation, right?

[00:15:51] Speaker 06:
Yes, and we do hope we have that.

[00:15:52] Speaker 06:
Where?

[00:15:53] Speaker 06:
It's in the declaration by Greg Mockery.

[00:15:57] Speaker 06:
Yeah, but where?

[00:15:59] Speaker 06:
It wasn't, I'm in negative territory.

[00:16:11] Speaker 06:
4099-4100.

[00:16:13] Speaker 06:
Which volume is it?

[00:16:15] Speaker 06:
That's probably the second to last.

[00:16:17] Speaker 06:
Three.

[00:16:25] Speaker 06:
What page?

[00:16:27] Speaker 06:
4099.

[00:16:32] Speaker 06:
4100.

[00:16:32] Speaker 02:
Okay, what paragraphs are you referring to?

[00:16:38] Speaker 06:
If you go to paragraph 18.

[00:16:49] Speaker 04:
Is this on 4100?

[00:16:50] Speaker 06:
Yeah.

[00:17:15] Speaker 06:
It's paragraph 18.

[00:17:20] Speaker 06:
And this is based on what he reviewed above, obviously.

[00:17:37] Speaker 04:
So he has basically a single sentence saying that the differences in the method are unsubstantial.

[00:17:44] Speaker 04:
OK.

[00:17:45] Speaker 04:
Any further questions?

[00:17:47] Speaker 04:
No.

[00:17:47] Speaker 04:
No.

[00:17:47] Speaker 04:
All right.

[00:17:48] Speaker 04:
Thank you, Mr. Bollinger.

[00:17:49] Speaker 04:
We'll give you two minutes for rebuttal.

[00:17:51] Speaker 04:
Thank you, Your Honor.

[00:17:57] Speaker 04:
Ms.

[00:17:58] Speaker 04:
Rigsby?

[00:18:01] Speaker 03:
May it please the Court, Cynthia Rigsby, appearing on behalf of Major League Baseball Advanced Media.

[00:18:08] Speaker 03:
Your Honors, if the facts were, as Mr. Bollinger stated them many times here today, this might be a different case.

[00:18:18] Speaker 03:
But as is evident in the red brief that we submitted, there are numerous references made in the arguments that really aren't supported by the actual factual record.

[00:18:30] Speaker 03:
The absence of factual support for their claims of infringement and their claims

[00:18:35] Speaker 03:
for substantial identity under provisional rights were the reasons behind the judge's thorough and thoughtful decisions.

[00:18:43] Speaker 03:
The district court decision should be affirmed.

[00:18:46] Speaker 03:
With respect to infringement, there are no new claim constructions being offered by the judge.

[00:18:56] Speaker 03:
The appellant says the judge referenced this objective idea and strictly objective, and there was no support for that in the record.

[00:19:04] Speaker 03:
But I would direct you to page 12 of the red brief, where we identify point by point what they actually said in the prosecution.

[00:19:12] Speaker 03:
They not only said, and they admit that their process is objective, they said to the patent office it was totally objective.

[00:19:20] Speaker 02:
They said it was completely objective.

[00:19:22] Speaker 02:
The court refused to find that.

[00:19:25] Speaker 02:
Refused to find argument-based estopel and said that there may have been subjective objective language in the prosecution history, but it did not amount to a disavowal.

[00:19:35] Speaker 02:
Right?

[00:19:36] Speaker 03:
That's correct.

[00:19:37] Speaker 03:
But the court did find that the method in construing the claims was an objective method.

[00:19:42] Speaker 02:
Did you actually ask for the court to construe the claims to include an obligation that the method be objective rather than subjective?

[00:19:51] Speaker 02:
We didn't use those exact words, but that was precisely.

[00:19:54] Speaker 02:
So the answer is no?

[00:19:56] Speaker 03:
No.

[00:19:56] Speaker 03:
We didn't ask that the court say this is an objective method, but we asked that the court construe the claims to require that certain criteria was in every game.

[00:20:08] Speaker 02:
Right.

[00:20:09] Speaker 02:
So you asked the court to construe the claim

[00:20:12] Speaker 02:
to require an end result that included certain criteria.

[00:20:16] Speaker 02:
But there was never a request that the court draw this subjective distinction.

[00:20:25] Speaker 03:
I think you're correct in that we didn't ask for those precise words.

[00:20:29] Speaker 03:
I think that the discussion around what the term substantially meant in the claim construction hearing on Markman

[00:20:37] Speaker 03:
was whether or not substantially allowed some discretion as to whether or not all the final outs had to be permitted.

[00:20:44] Speaker 03:
And so when the judge said that objective encapsulated, A86 encapsulated this idea that all final outs had to be in, it shows that what she was discussing when she references objective was this requirement that Romanettes 1, 2, and 3 of the claims had to be included as part of the edited recording.

[00:21:09] Speaker 02:
But she went beyond that.

[00:21:10] Speaker 02:
I mean, she talked about all of the instructions that you have given to your editing personnel.

[00:21:18] Speaker 02:
I mean, it certainly does feel like this was a studied effort to design around this patent.

[00:21:27] Speaker 02:
And the question is whether or not it was accomplished, I guess.

[00:21:31] Speaker 02:
But in the beginning, you didn't have all of those subjective requirements for your editors, did you?

[00:21:38] Speaker 03:
There's no record evidence of that.

[00:21:40] Speaker 03:
There's no record evidence of how the editing was accomplished prior to 2009, because at the time, the provisional rights decision had come out, and there was already no issue as to whether or not we infringed in 2009, 2008, 2007.

[00:21:56] Speaker 03:
So there are repeated statements that we infringed before 2009.

[00:22:00] Speaker 03:
There's actually no record evidence to support that.

[00:22:04] Speaker 03:
What we do know is that,

[00:22:05] Speaker 03:
You know, the provisional rights, the policy underlying that is we're supposed to find information in the public record to help us determine whether or not to avoid the claims.

[00:22:18] Speaker 03:
And so here, there's sort of a backhanded argument that apparently, if Major League Baseball Advanced Media tried to avoid the claims, they did something wrong.

[00:22:26] Speaker 03:
I think as the district court properly stated, if we tried to avoid the claims, we did something right.

[00:22:31] Speaker 03:
That's what we're supposed to do.

[00:22:33] Speaker 03:
And by the public notice function that's provided in the published claims that indicate what claims they're attempting to get, we know whether or not we can infringe those claims or whether we can avoid infringement.

[00:22:46] Speaker 03:
But I think the record is also clear and undisturbed that

[00:22:51] Speaker 03:
Major League Baseball, advanced media, was the first one to come up with this idea of condensed game.

[00:22:56] Speaker 03:
There was a declaration by former Commissioner Bob DuPay to that effect, and that's not been challenged.

[00:23:02] Speaker 04:
So that's a different question.

[00:23:04] Speaker 04:
That's not relevant to the infringement issue.

[00:23:07] Speaker 03:
I think it's not relevant.

[00:23:08] Speaker 03:
I agree with you.

[00:23:08] Speaker 03:
I think the problem is that there's a lot of atmospherics around this, as though there was some sort of attempt to take the invention of the inventors here.

[00:23:17] Speaker 03:
But what the clear evidence shows is, A, we don't infringe.

[00:23:21] Speaker 03:
We don't delete substantially all.

[00:23:24] Speaker 03:
We form a creative cut and paste method.

[00:23:27] Speaker 03:
And there's no hiding the ball on this issue in discovery, as suggested.

[00:23:31] Speaker 00:
In deposition- What about Baseball Quick's reliance on the statement of one of your employees that you do delete?

[00:23:37] Speaker 00:
I don't think that there's any proper reliance on that.

[00:23:40] Speaker 03:
In part- So it doesn't create a genuine issue of material theft?

[00:23:44] Speaker 03:
It doesn't create a- Why not?

[00:23:45] Speaker 03:
Because there is overwhelming evidence by the actual technical employees who produce the condensed games, how they're produced.

[00:23:54] Speaker 03:
We went beyond just saying we don't infringe.

[00:23:56] Speaker 04:
Well, why isn't the answer that the employee wasn't necessarily using the claimed term in the correct sense?

[00:24:03] Speaker 03:
I think that that's also the answer.

[00:24:05] Speaker 03:
I think he was talking in general about a process that was looked at in order to determine whether or not an auditing process, to determine whether or not all the final outs were in there.

[00:24:17] Speaker 02:
But the evidence.

[00:24:19] Speaker 02:
I guess my problem with this is you say that you cut and paste.

[00:24:22] Speaker 02:
Yes.

[00:24:22] Speaker 02:
And you create something.

[00:24:24] Speaker 02:
Yes.

[00:24:24] Speaker 02:
But at some point, you audit it to make sure that you don't have the all-infringing elements.

[00:24:31] Speaker 02:
And so you take things out.

[00:24:33] Speaker 02:
Right?

[00:24:34] Speaker 02:
I mean, the auditing process necessarily requires deletion unless the audit says it's perfect.

[00:24:42] Speaker 03:
The evidence that Baseball Quick has pointed to is the fact that we have an editing process.

[00:24:48] Speaker 03:
There's no evidence of the record that says that any deletion has occurred as a result of this editing process.

[00:24:54] Speaker 03:
What we know is that the games are generally created as they are occurring.

[00:24:59] Speaker 03:
And that was identified by deposition witnesses before markment.

[00:25:03] Speaker 03:
who explained we build the condensed games.

[00:25:06] Speaker 02:
In fact, Mr. Bowen... The witness, his job was to know how the auditing process works, right?

[00:25:16] Speaker 02:
And what he testified to is that as part of the auditing process, we go in and we make sure that all of these subjective requirements have been satisfied and we pull things out if they don't satisfy the subjective requirements.

[00:25:30] Speaker 03:
I'm not sure that's exactly Mr. Kaplan's testimony in that regard.

[00:25:35] Speaker 03:
He did identify that there was an auditing process to make sure that the games were being edited correctly, because there had been a total of 15 games that were identified in the litigation as having included all of the final outs, contrary to what the instructions were to the editors.

[00:25:51] Speaker 03:
But the instructions here are more than just

[00:25:53] Speaker 03:
eliminate routine outs.

[00:25:55] Speaker 03:
There are detailed instructions that describe how the claims are to be processed.

[00:25:59] Speaker 03:
And here there's an absence of any evidence by any competent witness who says the instructions that Major League Baseball follows are equivalent to the claimed.

[00:26:11] Speaker 03:
They point to, and we just looked at the testimony,

[00:26:15] Speaker 03:
of Mr. Mockery.

[00:26:16] Speaker 03:
I don't agree that Mr. Mockery was identified as a competent witness.

[00:26:21] Speaker 03:
The judge said that she would reserve that question as to whether or not he was competent.

[00:26:25] Speaker 03:
But we pointed to the decision of Judge Dyke that you authored, aquitex.

[00:26:30] Speaker 03:
And we made particular reference to the fact that you needed competent opinion testimony based on a linking testimony, right, on a limitation by limitation basis, indicating that the

[00:26:44] Speaker 03:
evidence here was equivalent.

[00:26:47] Speaker 03:
And there's no such testimony.

[00:26:49] Speaker 03:
Even this paragraph 18 that they reference, the witness says condensed game three, one of Major League Baseball's games, is equivalent to condensed game four, another one of Major League Baseball's games.

[00:27:02] Speaker 03:
That's not the kind of equivalence testimony that the decision in Aquatex suggests.

[00:27:07] Speaker 03:
What we need in terms of the equivalence

[00:27:10] Speaker 03:
is that linking testimony that says, I have reviewed the process that Major League Baseball says that they follow.

[00:27:17] Speaker 03:
We identified the specific software that we use early on in the litigation, the specific software that we use for editing.

[00:27:25] Speaker 03:
There was no effort by Baseball Quick to identify that software as

[00:27:31] Speaker 03:
Not including the deleting process.

[00:27:34] Speaker 03:
Again, deleting is not something that we hit the ball on during Discover.

[00:27:38] Speaker 03:
We specifically said, we need this claim construction that has the deletion concept because deletion's important and we don't delete.

[00:27:46] Speaker 03:
Set it an open court.

[00:27:48] Speaker 03:
And we said that following testimony by witnesses who said, we have an accretive building process where we build the games as the games are being construed.

[00:27:57] Speaker 03:
And so the idea that they didn't know that they were going to have to come up with evidence of deletion, either on direct infringement or indirect infringement, just doesn't follow through from the record here.

[00:28:08] Speaker 03:
What we see is they didn't offer evidence of deletion.

[00:28:13] Speaker 03:
They therefore couldn't get past a motion for summary judgment.

[00:28:17] Speaker 03:
Summary judgment was properly granted.

[00:28:20] Speaker 01:
Can I ask you about the provisional issue for a minute?

[00:28:22] Speaker 01:
Yeah.

[00:28:22] Speaker 01:
What's your response to Baseball Quick's argument that published claim eight should be interpreted under the broadest reasonable construction, and that under that standard, it's the same as patent claim three, and really more focusing on the broadest reasonable construction?

[00:28:37] Speaker 03:
Right.

[00:28:37] Speaker 03:
The broadest reasonable construction argument was advanced in the reply brief.

[00:28:41] Speaker 03:
It wasn't advanced in the opening brief.

[00:28:44] Speaker 03:
But it also certainly wasn't fully developed in the opening brief.

[00:28:47] Speaker 03:
But I think what was significant is that the summary judgment hearing, plaintiffs told the court they weren't sure what standards should be applied.

[00:28:53] Speaker 03:
And that's at A 3691 to 92.

[00:28:57] Speaker 03:
So they can't now come into this court and argue error based on the broadest reasonable construction when they told the district court, we're not sure if you should apply the broadest reasonable construction standard.

[00:29:08] Speaker 03:
I don't think that it matters at the end of the day what standard you apply.

[00:29:12] Speaker 03:
Leave only.

[00:29:15] Speaker 03:
There's no reasonable construction of leave only to mean leave not only.

[00:29:19] Speaker 03:
Leave only is pretty clear on its face in terms of what those terms mean.

[00:29:24] Speaker 02:
Do you know what the status of the rate exam is?

[00:29:27] Speaker 03:
There has been a motion by Baseball Quick for a new hearing, and that has not yet been ruled on.

[00:29:35] Speaker 03:
We assume that once that is decided, then it would be ripe for appeal, which is why we made that case known to you.

[00:29:44] Speaker 03:
With respect to provisional rights, again, I think the law is clear.

[00:29:48] Speaker 03:
I think the analogy to Seattle box, the analogy to Latrum, the analogy to Slimful that we detail in our briefs are pretty clear.

[00:29:58] Speaker 03:
I think one thing that can get confusing on the provisional rights is that the law is that the scope of the claims must be identical.

[00:30:07] Speaker 03:
So substantially identical means that the exact language doesn't have to be the same, but the scope, in fact, must be identical.

[00:30:14] Speaker 03:
The scope is not substantially identical.

[00:30:17] Speaker 03:
The scope is identical.

[00:30:19] Speaker 03:
And Slimfold says that explicitly.

[00:30:21] Speaker 03:
And so I do see that misstated sometimes in district court decisions.

[00:30:26] Speaker 03:
And so I point out that particular point.

[00:30:30] Speaker 03:
I think there's a reference by the two

[00:30:35] Speaker 03:
My baseball quick to publish claims five and 10 in their reply brief.

[00:30:39] Speaker 03:
I would say publish claims five and 10 are irrelevant to the analysis.

[00:30:43] Speaker 03:
This is a claim by claim process.

[00:30:46] Speaker 03:
You don't get to add up all the published claims and see whether or not within there somewhere is something that appears in the actual issued claim.

[00:30:56] Speaker 03:
And there's a clear authority for this in the House of Representatives report that was cited

[00:31:03] Speaker 03:
23 and 31 of the red brief, 33 of the blue brief.

[00:31:08] Speaker 03:
We didn't cite this exact language, but we definitely cited this provision.

[00:31:13] Speaker 03:
And they say there that at least one infringed claim in the published patent application must be substantially identical to at least one claim in the patent.

[00:31:21] Speaker 03:
It's a claim by claim analysis.

[00:31:23] Speaker 03:
You don't add them up.

[00:31:25] Speaker 03:
And I think that's an important point to understand in the provisional rights.

[00:31:31] Speaker 03:
Unless there are further questions on infringement, doctrine of equivalence, provisional rights.

[00:31:36] Speaker 04:
Okay, thank you.

[00:31:37] Speaker 03:
Thank you.

[00:31:42] Speaker 06:
Just briefly on provisional rights.

[00:31:44] Speaker 06:
I appreciate the two minutes, Your Honor.

[00:31:47] Speaker 06:
Specifically, the most reasonable construction was presented in the lower court and we think it's the one distinction.

[00:31:54] Speaker 06:
I haven't seen a case on it.

[00:31:56] Speaker 06:
It's interesting because

[00:31:57] Speaker 06:
Everyone talks about intervening rights, and you look at the claim before it goes into re-examine, then you look at the claim after it comes out, and you do that comparison.

[00:32:06] Speaker 06:
Provisional rights are a little different, because the before is when it's in the category of the broadest reasonable construction.

[00:32:12] Speaker 06:
And that should be the right standard for analyzing it.

[00:32:15] Speaker 06:
And here, as it relates to the term substantially

[00:32:19] Speaker 06:
And that term and the way it's used in the later claim, you saw the examiner looked at claim five and at claim ten and then looked at the language leave only and claim four.

[00:32:31] Speaker 06:
You couldn't construe it as so narrowly as they're attempting to do so now because those additional dependent claims would now be a problem.

[00:32:39] Speaker 06:
They wouldn't be consistent with claim differentiation.

[00:32:41] Speaker 06:
and the notion of a dependent claim being narrower.

[00:32:46] Speaker 06:
More importantly, the patentee clarified it and added the language substantially.

[00:32:54] Speaker 06:
So it was clear that those dependent claims were now, the independent claim was now broad enough to support those two dependent claims, but in a later set of claims.

[00:33:03] Speaker 06:
Now the other one, the other provisional rights issue relates to obtaining

[00:33:09] Speaker 06:
viewers for I'm sorry gaining subscribers for viewing and I just want to bring the court's attention to something that the defendant had cited in their brief

[00:33:18] Speaker 06:
And it was specifically at A2022.

[00:33:22] Speaker 06:
And it was the actual statement by the attorney prosecuting and characterizing what obtaining subscribers for viewing meant.

[00:33:31] Speaker 06:
And it's precisely as you'll find in published claim 8.

[00:33:37] Speaker 06:
It's actually not precisely, but it's very similar language.

[00:33:39] Speaker 06:
It goes to this notion of offering the edited recording

[00:33:45] Speaker 06:
for subscribers for viewing.

[00:33:48] Speaker 06:
And of course, the pending claim A had that language delivering to subscribers.

[00:33:54] Speaker 06:
So offering to subscribers, delivering to subscribers, we believe is the same scope and of identical scope.

[00:34:00] Speaker 06:
But it is claim A. I'm not relying on any other claims.

[00:34:02] Speaker 04:
You're out of time.

[00:34:02] Speaker 04:
Thank you.

[00:34:03] Speaker 04:
Thank you.

[00:34:04] Speaker 04:
Before we submit the case, the briefs appear to have improper confidentiality markings in them.

[00:34:13] Speaker 04:
that you have marked things as confidential, which are discussed in the district court opinion.

[00:34:22] Speaker 04:
We expect more care and confidentiality markings.

[00:34:25] Speaker 04:
We take this seriously.

[00:34:27] Speaker 04:
Whether we're going to ask you to file new briefs or not, we'll determine after the argument.

[00:34:34] Speaker 06:
It seems like you're directing that to me, and I apologize if that's the case.

[00:34:37] Speaker 06:
It wasn't our confidential information.

[00:34:39] Speaker 06:
We don't have any confidential information in this case.

[00:34:42] Speaker 04:
I thank both counsel for the cases submitted.