[00:00:00] Speaker 00:
This morning is number fifteen eleven oh three, I'm sorry, fourteen dash seventeen thirty-two convolve ink versus compact computer.

[00:00:10] Speaker 00:
Before we begin the argument, I want to raise one issue about confidentiality.

[00:00:15] Speaker 00:
Notice that all the briefs are marked non-confidential, save the compact brief, which appears to mark confidential things that fall into the category of standard legal argument.

[00:00:27] Speaker 00:
And it really looks as though

[00:00:30] Speaker 00:
Compact has paid no attention to our rules in this respect.

[00:00:36] Speaker 00:
So I would ask you to please review that and if you can remove the confidentiality markings or remove as many of them as possible and to file a new version of the brief that's in compliance with our standards.

[00:00:59] Speaker 00:
Is there anything you want to say about that?

[00:01:07] Speaker 04:
I believe all the vast majority of the designations are at the request of the appellant convolved to de-designate all of that material.

[00:01:22] Speaker 04:
If they would agree to that, we can re-approach them.

[00:01:25] Speaker 04:
What we have in the past requested that they un-designate them, and this is what has been designated as confidential.

[00:01:33] Speaker 00:
well why don't you discuss that with them it's hard to see any basis for confidentiality markings here particularly since the same subject in the same things are discussed in the other briefs without any confidentiality markings all right why don't we start the clock now uh... is it pronounced mariner marringer marringer okay mr marringer

[00:02:01] Speaker 03:
Once the panel has a specific preference, I'll begin today with the interviewing rights issue we visited, since it's the only case decided at issue now on appeal.

[00:02:10] Speaker 03:
It's not disputed here that there was an amendment during the re-examination of the 473 Act and the first re-examination of the 473 Act.

[00:02:17] Speaker 03:
And that may trigger an intervening risk analysis.

[00:02:21] Speaker 03:
What it may not trigger is a per se finding of an intervening risk.

[00:02:25] Speaker 04:
Can I ask you this question?

[00:02:26] Speaker 04:
And I'm going to put aside the per se, since I don't find that in the district court's opinion.

[00:02:30] Speaker 04:
I'm interested in an answer to, I guess, that doctrinal question about the PTO's use of the broadest reasonable interpretation standard.

[00:02:42] Speaker 04:
What is the clearest precedent from our court

[00:02:47] Speaker 04:
for the proposition, which I think matters here, that the intervening rights analysis depends on comparing the before and after claims as, let's see, construed under Phillips, correctly construed, I'm not quite sure what the right language is, but not under the VRS.

[00:03:10] Speaker 03:
I think Kauffman and Matron would both go to that.

[00:03:14] Speaker 03:
Even the most recent decision from R. L. Carey discusses that.

[00:03:19] Speaker 03:
And the distinction is the distinction between the scope of what's looked at.

[00:03:25] Speaker 03:
Under the MPEP, the examiner is looking at the claims alone and the specification.

[00:03:30] Speaker 03:
Well, that's not quite true.

[00:03:52] Speaker 00:
Assuming that it's not the broadest reasonable interpretation, which seems to me to be correct, and that it is the Phillips standard,

[00:04:00] Speaker 00:
It's the Phillips standard with one tweak under Latrum, and that is that in determining what the original claims provided, you look to see what happened in the re-examination proceeding, and if there is there a rejection and an amendment to overcome claim scope, that becomes highly relevant to the interpretation.

[00:04:20] Speaker 00:
Not a per se rule, but highly relevant, correct?

[00:04:24] Speaker 03:
It can be highly relevant and I think you have to look at the entire scope of the re-examination to see that too.

[00:04:30] Speaker 00:
Right, but that's a departure from the Phillips rule in the sense that if our sole task were to see what the claims meant before the re-examination, you wouldn't take into account what happened in the re-examination proceeding.

[00:04:43] Speaker 00:
And Latrum tells us we have to take into account what happened in the re-examination proceeding.

[00:04:48] Speaker 03:
That in part is correct.

[00:04:50] Speaker 03:
I believe that you could take an argument that the intrinsic record for the original claims would not include the re-examination and the intrinsic records for the raised issue claims would include the intrinsic record.

[00:05:03] Speaker 03:
You would still under Latrum and under Latrum IV, look to the re-examination to see what guidance it might give as to what it is.

[00:05:13] Speaker 03:
But as indicated, it should not be a per se

[00:05:17] Speaker 03:
under Phillips if you were trying to construe a claim and you wanted to find out what the claim meant before the reexamination proceeding

[00:05:36] Speaker 00:
you'd look to the standard things, but you wouldn't look to see whether there was a rejection and overcoming the rejection by an amendment to the claim in the reexamination proceeding.

[00:05:46] Speaker 00:
And yet, Latrum tells us that that's not only relevant, but highly relevant.

[00:05:50] Speaker 00:
So in that sense, it's a little different than the fellows' process.

[00:05:54] Speaker 00:
That's correct, right?

[00:05:55] Speaker 03:
Yes, I believe that you later on would tell you that you can consider the re-examination.

[00:06:00] Speaker 03:
We wouldn't say that you shouldn't consider the re-examination here.

[00:06:03] Speaker 03:
What happened in the re-examination was two rejections starting with a very broad interpretation by the end of the re-examination.

[00:06:12] Speaker 03:
both the applicant and the examiner had come to very much the same issue that had been at issue in the very original application, which was the distinction of the noise between Kauffman and the client, and ultimately both the examiner and the applicant in the re-examination

[00:06:30] Speaker 03:
indicated that it was a clarifying amendment to add seek.

[00:06:35] Speaker 03:
So in and of itself, the fact that there was a reflection in the reexamination would not indicate that this was a substantive amendment.

[00:06:47] Speaker 04:
Can I ask you a question about how the three issues before us fit together?

[00:06:53] Speaker 04:
Suppose

[00:06:56] Speaker 04:
I'll ask it this way, suppose hypothetically that we agreed with you about command, we agreed with you about intervening rights, but disagreed with you about user interface.

[00:07:10] Speaker 04:
Does the whole case go away or is the user interface ruling somehow more limited just to Seagate's

[00:07:20] Speaker 04:
the direct infringement by Seagate.

[00:07:24] Speaker 04:
I must say, I was left quite confused about that.

[00:07:26] Speaker 03:
Yes, it is a little bit confusing.

[00:07:28] Speaker 03:
What the district court did right at the end there, with its analysis between commands and user interface, our position would be that the user interface determination is limited to Seagate,

[00:07:42] Speaker 03:
direct infringement alone, it's only limited to the APA and SCSI interface.

[00:07:49] Speaker 03:
It does not, our allegations against compact with respect to both indirect infringement and direct infringement rely on the F10 bios.

[00:07:59] Speaker 04:
Do you have an allegation of indirect infringement against Seagate that would remain even if the Seagate, those two components of the Seagate hard drive were not themselves user interfaces?

[00:08:16] Speaker 03:
Yes, absolutely we do.

[00:08:18] Speaker 04:
And so you think that the language that the district court used in saying three independent grounds was somewhat imprecise?

[00:08:25] Speaker 03:
It absolutely was, and the particular allegation against Seagate with respect to indirect infringement would be based on the Seagate utilities where that's a user interface independent of the APA and SCOTSR interface.

[00:08:40] Speaker 03:
Okay, thank you.

[00:08:44] Speaker 03:
The basis for the intervening rights analysis that the district court gave, the cornerstone of it was going back and trying to substantiate that there had been a substantive change.

[00:08:58] Speaker 03:
And that was based on a claim construction of the original claim that would allow it to include spindle motor noise, acoustic noise.

[00:09:08] Speaker 03:
If that claim construction is correct, everybody in this case was wrong.

[00:09:12] Speaker 03:
The original examiner was wrong to allow the claims to be issued.

[00:09:17] Speaker 03:
The re-examiner was wrong to call the claim amendment clarified.

[00:09:21] Speaker 03:
The defendant's own experts in 2008 when they were deposed were wrong when they said that the claim

[00:09:30] Speaker 03:
the claim should be construed to exclude spindle motor noise and that the technology here in 473 Pack is only limited to seat technology.

[00:09:41] Speaker 03:
And finally, the defendants themselves were wrong in 2002 when they themselves proposed the construction of the term acoustic noise to specifically exclude spindle motor noise.

[00:09:57] Speaker 00:
Well except that during the re-examination apparently the examiner thought that the breadth of the claim would include spindle noise and that for that reason

[00:10:08] Speaker 00:
it was invalid over a couple pieces of prior art, right?

[00:10:14] Speaker 03:
The examiner started with that position.

[00:10:16] Speaker 00:
Right.

[00:10:17] Speaker 00:
Is there any case that you can cite where there was during reexamination an amendment to overcome an invalidity rejection where that was held to not to suggest the scope of the original claim?

[00:10:37] Speaker 00:
In other words, where there was an amendment and we held it, that is a clarification that could be ignored.

[00:10:46] Speaker 03:
The costume case is a case where in fact there was an indication that it was over an invalidation and almost every re-examination, every re-examination starts with a position that there was a substantial new question of patentability over prior art.

[00:11:03] Speaker 03:
And that's exactly where the Kauffman case started, was rejecting a position that, in and of itself, that should be enough to say every amendment has to be clarified.

[00:11:17] Speaker 03:
That is where re-examinations start, with questioning a new piece of prior law.

[00:11:24] Speaker 03:
You can only get a re-examination.

[00:11:25] Speaker 00:
Was Kauffman a case in which there was a rejection and then an amendment?

[00:11:29] Speaker 03:
It's not clear on the record whether or not under Kaufman whether or not there was a specific rejection.

[00:11:34] Speaker 03:
This case didn't go into that level of detail.

[00:11:37] Speaker 00:
So am I correct then you're not able to cite a case where there was a specific rejection in an amendment but we nonetheless held that that could be ignored for purposes of determining the original claim scope?

[00:11:53] Speaker 03:
This court, the Comal case itself in Texas, decided that way.

[00:11:58] Speaker 03:
The Comal case looked at this exactly... That's a district court, right?

[00:12:02] Speaker 00:
Yes.

[00:12:02] Speaker 00:
Yeah, I'm saying, our decisions.

[00:12:06] Speaker 03:
Our decisions, your decisions from this court, obviously the Coffin case has held the same... But it's not, but you admitted in Coffin, it's not clear that there was a rejection.

[00:12:17] Speaker 03:
on record, it indicates that it was over a prior reference, whether or not that was, again, what that would be, and at least an indication that there would be a rejection there.

[00:12:31] Speaker 00:
But that's the only case.

[00:12:35] Speaker 03:
Dealing with re-examination, that's the only case that comes to mind right now that we've cited.

[00:12:40] Speaker 01:
Okay.

[00:12:41] Speaker 01:
Can I ask you about the commands portion of this case?

[00:12:43] Speaker 01:
Assuming

[00:12:46] Speaker 01:
that I disagree with you about the user interface and think the district court got that right.

[00:12:49] Speaker 01:
You still have an argument.

[00:12:51] Speaker 01:
I think that some of the claims are still infringing because of the commands portion.

[00:12:58] Speaker 01:
I don't follow that entirely because they seem like they're basically all doing the same thing.

[00:13:06] Speaker 01:
They're user interface that's outputting commands.

[00:13:11] Speaker 01:
So, can you explain that to me?

[00:13:13] Speaker 01:
I'm sorry, maybe I misunderstood the question.

[00:13:19] Speaker 01:
Well, it's really just a variation of what my colleague asked you.

[00:13:21] Speaker 01:
There's a different portion of this case.

[00:13:23] Speaker 01:
Assume we agree with you on intervening rights.

[00:13:26] Speaker 01:
Assume we disagree with you about user interface.

[00:13:29] Speaker 01:
You're still preserving some kind of commands argument for some of the claims, but not all of the claims, right?

[00:13:36] Speaker 03:
That all of the claims, the commands element is there.

[00:13:39] Speaker 03:
The user interface and the commands issue are two separate issues.

[00:13:42] Speaker 01:
Well that's what I'm trying to ask you about.

[00:13:43] Speaker 01:
What is the commands issue and what products would it impact and how does it differ from the user interface argument?

[00:13:51] Speaker 01:
Because it seems to me that some of the claims that talk about user interface also they all have the commands thing working through the user interface.

[00:14:00] Speaker 01:
So if you don't have a user interface as

[00:14:04] Speaker 01:
properly construed by the district court, then how do you have a commands problem?

[00:14:08] Speaker 00:
In other words, the processor that's giving the commands has to have a user interface, right?

[00:14:16] Speaker 03:
So you don't think that the processor that gives the commands has to have a user interface?

[00:14:35] Speaker 03:
We don't believe that the processor that gives the command has to be the same processor that issues the commands.

[00:14:43] Speaker 03:
And that's the link that the court made.

[00:14:44] Speaker 03:
In fact, not all of the claims even require processors.

[00:14:48] Speaker 03:
Only some of the claims do.

[00:14:49] Speaker 03:
Except possibly for claim nine, whose language

[00:14:55] Speaker 03:
No, I don't believe it's the case with claim nine either.

[00:14:59] Speaker 03:
Claim nine is a processor and that would require interpreting the term A to mean that it's a single processor.

[00:15:05] Speaker 03:
That's what I meant by tough.

[00:15:08] Speaker 03:
This course precedent would not limit the term A to a single.

[00:15:16] Speaker 01:
But what about claim one where it talks about A but then when it gets to the

[00:15:22] Speaker 01:
commands portion, it refers back to the processor.

[00:15:25] Speaker 01:
Isn't that kind of a typical way of writing claims to refer to the same processor and not more than one processor?

[00:15:34] Speaker 03:
Claim one is slightly different than some of the issues raised by claim one are different and we have not used claim one and alleged infringement in the same manner.

[00:15:44] Speaker 03:
So I do think that we've even in our brief made some distinctions about how claim one should be interpreted.

[00:15:50] Speaker 03:
But what the district court did with respect to all of the other claims, you can't read in any of the limitations of claim one to the other claims.

[00:16:01] Speaker 00:
Okay, we'll give you two minutes for a bottle.

[00:16:04] Speaker 02:
thank you mister phillips morning your honor, may it please the court i'm going to discuss the user interface and the intervening rights issue and my colleague will deal with the commands issue if that's ok with the court do you agree by the way that prevailing on the user interface issue does not end the case

[00:16:34] Speaker 04:
in total or even in the case as to see it as a defendant.

[00:16:38] Speaker 02:
I agree that it doesn't indicate in the case in total as I understand it, but it does in my view in the case as to Seagate that the district judge dismissed all the claims.

[00:16:48] Speaker 02:
That's the judgment.

[00:16:50] Speaker 02:
He did it on the ground that each was an independent basis for ruling our favor.

[00:16:54] Speaker 02:
And the other side did not in any way raise that as an issue in its appeal.

[00:17:00] Speaker 02:
There's no question presented, there's no argument.

[00:17:02] Speaker 02:
All we have is a footnote and a reply brief that says in the event that this case goes forward, at any court, that portion stays on.

[00:17:12] Speaker 02:
I would say they waived their ability to make that particular argument in this particular case.

[00:17:17] Speaker 02:
That said, I do think, and I agree with my colleague, that the intervening rights issue is the one that will dispose of the case, and I think in some ways dispose of it most readily, such that if you're right, there is no case that deals with the situation anywhere close to this one.

[00:17:32] Speaker 02:
Even Leotron and Institute Pesture are cases that I think are harder in some respects for the defendant in this particular case, because here we have two rejections,

[00:17:44] Speaker 02:
carefully analyzing each of the bases of the Koizumi pattern, evaluating them on pure ingenuity, looking at every claim element, including that given the language that's been used here, that this is anticipated.

[00:18:00] Speaker 04:
Am I wrong in remembering that every single time the examiner

[00:18:09] Speaker 04:
issued the rejections before eventually allowing with the change.

[00:18:15] Speaker 04:
The examiner was careful to say the language, the language of the claim does not clearly exclude, was it Kwazumi, never saying

[00:18:31] Speaker 04:
That is every single time the examiner either expressly or implicitly relied on the BRI standard.

[00:18:41] Speaker 04:
And that then carried through to the ultimate what you're doing is clarifying.

[00:18:46] Speaker 04:
which is kind of the role of the BRI standard, right?

[00:18:50] Speaker 02:
This is a little bit unclear, but let's clarify.

[00:18:52] Speaker 02:
It seems to me that there's no way to reconcile some effort to incorporate in as a limitation on the Intervening Rights Doctrine, the BRI standard, because that would have been just as true

[00:19:04] Speaker 02:
and later on before it would have been just as true in Pascual Institute.

[00:19:08] Speaker 04:
Well, it depends what the examiner said in each case.

[00:19:10] Speaker 04:
I guess I was struck by the language.

[00:19:13] Speaker 04:
The examiners, at least in my experience, often do not build in what seemed to be such careful language in describing the grounds of their rejection.

[00:19:26] Speaker 04:
Instead, they say, this covers that.

[00:19:27] Speaker 04:
They often do a kind of a rote

[00:19:29] Speaker 04:
were governed by the BRI at the beginning and then you never hear about it again.

[00:19:33] Speaker 02:
The examiner kept coming back to it.

[00:19:35] Speaker 02:
Except that if you look, if you carefully study the examiner's analysis of the relationship between kuzimi and this particular pattern, what he says in that context is that kuzimi anticipates everything with respect to this, that the inverse relationship, that the acoustics work

[00:19:51] Speaker 02:
and it moves inversely with the speed, and there's a mechanism by which it shifts from one to the other.

[00:20:00] Speaker 02:
And therefore, there is no basis for this to allow it to go forward under these circumstances.

[00:20:06] Speaker 02:
So what do they do?

[00:20:06] Speaker 02:
They make a change.

[00:20:08] Speaker 02:
I don't see any way that you can describe that change as anything other than substantial in this context, because the same language that caused this court to conclude that there were intervening rights in the prior decisions

[00:20:21] Speaker 02:
applies here.

[00:20:22] Speaker 02:
It's a clear adjective that significantly narrows the scope of the claim.

[00:20:26] Speaker 02:
That's a significant change.

[00:20:28] Speaker 02:
the specification consistently distinguishes between seat speed and acoustic noise.

[00:20:34] Speaker 02:
There's never a reference.

[00:20:36] Speaker 04:
But it never distinguishes between acoustic noise that comes from different things.

[00:20:43] Speaker 04:
As far as I can tell, everything in the spec referring to acoustic noise, or at least the acoustic noise that has an inverse relation to seat

[00:20:54] Speaker 04:
speed or time, I always get this confused, I'm sorry, speed, is about acoustic noise generated during the seek process.

[00:21:03] Speaker 02:
Right, but that would be just as true for the seek noise as it is for the speckle noise.

[00:21:09] Speaker 02:
If you modify, that's the whole point of the re-examination analysis.

[00:21:14] Speaker 02:
If you modify the speed either way, you're going to affect both the spindle and the seek noise.

[00:21:20] Speaker 02:
So the question is, what do you have?

[00:21:21] Speaker 02:
Well, you just asked for acoustic noise.

[00:21:24] Speaker 02:
So you fall squarely in and are covered by the previous pattern.

[00:21:29] Speaker 02:
So in order to get out of that, they had to make a substantial change.

[00:21:33] Speaker 02:
And that's precisely what they did in this particular case.

[00:21:36] Speaker 01:
But is there anything in the specification that talks about

[00:21:39] Speaker 01:
spindle noise.

[00:21:40] Speaker 01:
Isn't it always talking about wave noise?

[00:21:43] Speaker 02:
No, it's always talking about acoustic noise.

[00:21:45] Speaker 02:
And remember, column 9 says broadly that this applies to reducing vibration in all kinds of systems.

[00:21:53] Speaker 02:
These are claims that are written to be wildly broad, way beyond the specific application to the hard drive under these circumstances, these kinds of, this kind of invention.

[00:22:03] Speaker 02:
And it's that, and that seems to me, that's what you would take.

[00:22:06] Speaker 02:
So this is meant to be the broadest possible application.

[00:22:09] Speaker 02:
And in order to bring it back in, the court significantly reduced, significantly changed, not the court, the plaintiff significantly changed the scope of the claim.

[00:22:19] Speaker 00:
I guess under marine polymer they could have, instead of amending the claim language, they could have said that in our view it's absolutely clear that the original claim is limited to seek noise rather than spindle noise, right, and they would have been okay.

[00:22:39] Speaker 02:
Right, although, as I understand it, their path would have been invalid at that point, right?

[00:22:45] Speaker 02:
The examiner having rejected it on the basis that it's anticipated by Koizumi, if they leave it in place under those circumstances, they've got an invalid path.

[00:22:56] Speaker 00:
Well, what I'm saying is if all they were doing was a clarification, they could have articulated the clarification without

[00:23:03] Speaker 00:
actually amending the claim language.

[00:23:05] Speaker 02:
But it does seem to me that once you amend the claim language the way they did, then they have to demonstrate that that's an insubstantial change.

[00:23:13] Speaker 02:
And the one thing I did want to say, Judge Romano, about the clarifying, and that's in a footnote in passing in the examiner's analysis, and it is far from clear that he is using the term clarifying in that context as distinguished from substantial change.

[00:23:26] Speaker 02:
I mean, clarifying used in an ordinary parlour makes it clear what was unclear.

[00:23:32] Speaker 02:
And it seems to me reasonably obvious at this point that whatever else there may be, acoustic noise is not really clear as to whether it includes both temple noise and teak noise under these circumstances.

[00:23:44] Speaker 02:
And then with respect to the user interface, the argument there it seems to me is, you know,

[00:23:50] Speaker 02:
The court interpreted the language clearly, you gotta have a person, and the person has to be acting directly with respect to the device.

[00:24:00] Speaker 04:
But the person does not have to be acting directly.

[00:24:04] Speaker 04:
It says directly or indirectly.

[00:24:07] Speaker 02:
Right, and the court was very clear in explaining what indirectly meant, which is you couldn't use a mouse and you couldn't use a... Right, but let me, I guess...

[00:24:15] Speaker 04:
register a disagreement with, I have a very hard time understanding what the explanation was for how indirectly meant one thing but not the other.

[00:24:29] Speaker 04:
I don't get the principle.

[00:24:31] Speaker 04:
You don't need a screen.

[00:24:33] Speaker 04:
You don't need

[00:24:35] Speaker 04:
something that is I think part of your language was at the site of the user because most software is not that and software was expressly added to the claim construction that you've given an opportunity to register disagreement with the addition of that word and you didn't.

[00:24:54] Speaker 04:
I'm having a hard time understanding what language captures the notion that the user interface doesn't cover the particular components of your hard drive with which, through long enough wires or something, the user can interact to make the choice that is the whole point of that piece of the invention.

[00:25:20] Speaker 02:
But as I understand it, the way I would answer that, it may not be an answer because you're looking for specific language in the claim as opposed to... No, no, just your language that's making the distinction.

[00:25:32] Speaker 02:
The other side argued that user interface meant a device-to-device interface.

[00:25:38] Speaker 02:
And Judge Daniel specifically and explicitly rejected that, saying that rights user out of the claim.

[00:25:45] Speaker 02:
So in order to have, you have to have some connection.

[00:25:48] Speaker 02:
And he made an exception to deal with what he called a pedantic argument, which would be that somehow if you're just using a mouse or something else, that that would be a problem for them.

[00:25:57] Speaker 02:
So he gave him that bone to know it would be indirect.

[00:26:01] Speaker 02:
But he in no way remotely suggested that.

[00:26:03] Speaker 02:
indirect was meant to subsume the need for a true user interface to be distinguished from a device to device interface.

[00:26:10] Speaker 02:
And there's no excuse that what we have is purely a device to device interface.

[00:26:15] Speaker 04:
Can you just help me understand, and it may not be possible for me to understand this, but

[00:26:21] Speaker 04:
What is the distinction between the user interface that allows indirect access to the ultimate thing you're trying to control and the device-to-device interface?

[00:26:38] Speaker 04:
The keyboard works through

[00:26:41] Speaker 04:
I'm not quite sure what the relationship technically is between the screen and the keyboard and the mouse and the screen.

[00:26:52] Speaker 04:
I'm having a hard time getting a grip on exactly what this distinction is with a claim construction that uses the word indirectly that includes software which is not actually a physical thing

[00:27:05] Speaker 02:
But that generates something else that is presented to the user.

[00:27:25] Speaker 02:
mouse click in order to move the scroll, where you enter a keyboard in order to move the, you know, to enter in an item, in order to shift the focus from one side to the other.

[00:27:35] Speaker 02:
That was, what Judge Daniels concluded, was the user interface that this patent revealed.

[00:27:42] Speaker 01:
And then it doesn't move all the way down at that point to device to device interchange.

[00:27:48] Speaker 01:
And why isn't, because that user interface ultimately is talking to the Seagate hard drive, not covered under indirectly?

[00:27:56] Speaker 01:
Is it because it has to go through other processors?

[00:27:59] Speaker 02:
Yes.

[00:28:01] Speaker 02:
Because he said otherwise, you're saying everything in the computer is now suddenly subject to this claim.

[00:28:05] Speaker 02:
And he said that was never the intent.

[00:28:07] Speaker 02:
Particularly against the specification, it seems dramatically more narrow than that.

[00:28:11] Speaker 04:
Even though the software is inside and the software is expressly part of the claim construction with an or, software that allows the user indirectly to alter the parameters, that would be a

[00:28:35] Speaker 04:
literal part of the claim construction.

[00:28:37] Speaker 02:
But that's still not, I mean first of all that's not our case.

[00:28:40] Speaker 02:
This is not software, this is hardware, right?

[00:28:43] Speaker 02:
So this still doesn't extend to our case.

[00:28:45] Speaker 04:
Right, but you're relying on an admittedly

[00:28:49] Speaker 04:
intuitive distinction between user interfaces and some other kind of interfaces and I keep reading each of the attempts to give a characteristic that captures or defines that intuition and I find a problem with every one of the characteristics and so I'm struggling to understand ultimately what this distinction is.

[00:29:10] Speaker 02:
And I guess the answer I would give is to go back to the specifications I said before and look at exactly what it is that this invention is designed to get at.

[00:29:17] Speaker 02:
And what it's designed to get at is the interplay between the user, the human user, and the ability to make the change on the screen.

[00:29:26] Speaker 02:
And after it gets passed that into the computer, that's off limits.

[00:29:30] Speaker 02:
That's the way Judge Daniels read it.

[00:29:32] Speaker 02:
And on the basis that that would just be

[00:29:34] Speaker 04:
So when I was trying to understand what is the role in the technological advance played by the user interface, I had a hard time finding anything other than a mechanism of giving an instruction, a mechanism of control.

[00:29:53] Speaker 04:
So why does that exclude

[00:29:55] Speaker 04:
you know, the component of your hard drive that is in fact, I guess is it programmed, I guess it's programmed to receive a control command.

[00:30:09] Speaker 02:
Well, because I don't view that, and certainly that's not the way that Zando reviewed or concluded with respect to the scope of this claim.

[00:30:18] Speaker 02:
He reviewed that it's not as simple as giving a command and then running it on to the end of the earth.

[00:30:23] Speaker 02:
He said there's a command that gets given to the screen and is adopted that way.

[00:30:28] Speaker 02:
It can either be directly, because you can touch the screen, presumably, or indirectly, because you can go through a mouse or a keyboard.

[00:30:34] Speaker 02:
But once it gets beyond that stage,

[00:30:37] Speaker 02:
To be sure, it's still indirect, but at that stage it becomes something other than a user interface.

[00:30:46] Speaker 00:
The way we are, we're trying to figure out what he meant rather than what the claim meant to Nova, because as I understand it, there was no objection to his construction at the time, right?

[00:30:57] Speaker 02:
although again, they made the argument that this includes advice and advice, and never objected to it when he said no, categorically that's just not true, it's much more narrowly limited, and explained the very narrow limitation indirectly.

[00:31:12] Speaker 00:
Okay, thank you, Mr. Phillips.

[00:31:14] Speaker 00:
Mr. Landgraf?

[00:31:22] Speaker 04:
Thank you.

[00:31:23] Speaker 04:
May I please report?

[00:31:25] Speaker 04:
In addition to adopting the arguments made by Seagate, I'd like to discuss the commands component of District 4 summary judgment.

[00:31:34] Speaker 04:
The commands need to originate from the user interface, and the only user interface left in the case right now is the F10 BIOS on the compact machine.

[00:31:44] Speaker 04:
What do you mean by the commands have to originate from the user interface?

[00:31:53] Speaker 04:
I thought the question was whether the very same processor that generates the user interface has to issue the commands to the hard drive to

[00:32:02] Speaker 04:
And I can see how you might get that out of claim nine.

[00:32:07] Speaker 04:
I have a hard time seeing how you get it out of anything.

[00:32:10] Speaker 04:
Well, a few ways.

[00:32:12] Speaker 04:
One is that, in all this conceited repeatedly, that commands mean the same thing across every claim.

[00:32:17] Speaker 04:
Well, commands does, but that doesn't say that the same processor that generates the commands has to generate the user interface.

[00:32:30] Speaker 04:
The command that needs to be shaped by a processor, that's how this report construed it.

[00:32:35] Speaker 04:
And so if it means the same thing across every claim, we appear to have a concession that happens in claim one by Mr. Moranger.

[00:32:43] Speaker 04:
And it also happens in claim nine.

[00:32:45] Speaker 04:
Our position is it happens across the board in every claim.

[00:32:49] Speaker 04:
And that's what convolved argue to the PTO.

[00:32:52] Speaker 01:
But why can't other of the claims be broader and allow more than one processor?

[00:32:58] Speaker 01:
Claim 10, for instance, doesn't talk about the user interface and the kind of preamble part.

[00:33:05] Speaker 01:
talks about a user interface for controlling and then an operating user interface that has a separate clause about outputting commands that doesn't seem tied to the user interface.

[00:33:16] Speaker 03:
Every claim requires a user interface

[00:33:21] Speaker 04:
and some claims do specify the processor and some do not, but everyone identifies the user interface.

[00:33:28] Speaker 04:
In convolved, argued to the PTO in the re-examination in 2008, the prior ARC rate thesis did not anticipate the claims under review because the rate thesis lacked a separate host computer with the user interface there that issued commands.

[00:33:44] Speaker 04:
They made that argument explicitly in the examiner.

[00:33:49] Speaker 04:
Am I remembering right?

[00:33:51] Speaker 04:
This is what I'm remembering from your brief that when you said that, that they made that argument, what you quoted was not actually language that they used, but rather the examiner's characterization of an argument during which the examiner then went on to say,

[00:34:09] Speaker 04:
say something, and that was not actually convolved words.

[00:34:15] Speaker 04:
And later, they came back in response to that.

[00:34:19] Speaker 04:
Was it January, 2010 or something?

[00:34:21] Speaker 04:
And then in April of 2010, they came back and said something that I'll use the word clarify.

[00:34:31] Speaker 04:
No pun intended.

[00:34:32] Speaker 04:
They did say that.

[00:34:34] Speaker 04:
They're not right.

[00:34:36] Speaker 04:
Involve the section of the title.

[00:34:38] Speaker 04:
What's in the read print?

[00:34:40] Speaker 04:
A5020.

[00:34:41] Speaker 04:
Section A5020 that said, Ray did not enable the disk drive to respond to commands from a host computer for altering C code.

[00:35:01] Speaker 04:
And they argued that Ray, at 5021, and Ball argued that Ray teaches away from the idea that a host computer was used to send commands.

[00:35:11] Speaker 04:
So they do pay that to the examiner.

[00:35:14] Speaker 04:
And the examiner, they're correct that we quoted the examiner because the examiner's language was clear.

[00:35:20] Speaker 04:
This is from page 4219.

[00:35:23] Speaker 04:
Quote, the examiner concurs with Pat Lerner that Ray does not disclose the host processor running the user interface, that the commands of Ray appear to be generated by modified DSP code internal to the storage device and not the host processor.

[00:35:38] Speaker 04:
here the compact machine is the host computer that they were saying didn't exist.

[00:35:46] Speaker 04:
That there was no host processor.

[00:35:51] Speaker 04:
They tried to correct that.

[00:35:53] Speaker 04:
The sections that they sent the court to say nothing to correct the examiner's understanding that Ray did not disclose that host processor running a user interface.

[00:36:06] Speaker 04:
And it's undisputed here

[00:36:08] Speaker 04:
that the F10 BIOS does not issue command that that's been construed.

[00:36:15] Speaker 04:
So once you hold them to what they told the PTO and what the PTO relied on under Jergens v. MacCasey, that's the end of the story.

[00:36:24] Speaker 04:
And there's no dispute, and they don't claim in this course, that the F10 BIOS issued shape commands as that term's been construed.

[00:36:31] Speaker 04:
By the way, do you agree with what I take as

[00:36:34] Speaker 04:
So far, a two to nothing agreement that resolving the user interface issue by itself does not end the case.

[00:36:44] Speaker 04:
If you resolve it against us.

[00:36:48] Speaker 04:
I would agree with that, but I heard you look at the inverse relation argument, which is a purely legal argument, undisputed facts, and it's straightforward.

[00:37:00] Speaker 00:
Okay.

[00:37:00] Speaker 00:
Thank you, Mr. Lerner.

[00:37:02] Speaker 00:
Mr. Mayor and Chair, you have two minutes here.

[00:37:06] Speaker 03:
I'll try to get through some of these things very, very quickly.

[00:37:09] Speaker 03:
I'll start with the user interface.

[00:37:11] Speaker 03:
Most of the issues that I think were raised on the user interface can be dealt with basically with the fact that what was done here reads out a specific embodiment.

[00:37:21] Speaker 03:
The patent talks about the user interface and the disk drive engine being done on either processor 25, which is the host PC, or processor 73, which is the disk drive PC processor.

[00:37:34] Speaker 03:
I apologize.

[00:37:35] Speaker 03:
What the district court did here was limit us improperly to the host PC processor, did not look at any of the evidence with respect to user interface to limit us there.

[00:37:45] Speaker 03:
That completely reads out the embodiment where the disk drive engine which generates the user interface and generates the command can be done on the disk drive processor itself.

[00:37:58] Speaker 03:
With respect to the machine-to-machine argument that was a mischaracterization about what we argued during the device-to-device, we did not argue as that argument was specifically that the device, the term user could include commands that were actually initiated by a device.

[00:38:18] Speaker 03:
And the district court said it would just have to be a person.

[00:38:22] Speaker 03:
That's reflected in the plain meaning of the claim construction.

[00:38:24] Speaker 03:
The district court should apply that plain meaning.

[00:38:27] Speaker 04:
Can you give me some words that describe how to distinguish device to device interfaces from your conception of user interface?

[00:38:40] Speaker 04:
And don't just repeat the claim construction words, please.

[00:38:43] Speaker 03:
I think what you had said with respect to mechanism control, it should be interpreted broadly.

[00:38:53] Speaker 03:
The characterization of our patent only talking about the Dewey and all the figures, and that's what all should be relied on, limits us right back to the claims as having only a Dewey.

[00:39:04] Speaker 03:
and that is not where we are.

[00:39:06] Speaker 03:
Figure 1 talks about and shows the context that this patent has broadly talked about as being a disk drive in the context of a PT.

[00:39:14] Speaker 03:
One of ordinary skill in the art is going to understand that getting from the user to the site of control is going to involve

[00:39:22] Speaker 03:
many, many different types of interfaces.

[00:39:25] Speaker 03:
And the user interface that's contemplating how this patent would be understood by one of ordinary skilled VR is the ability and the mechanism of control that's going to allow you to put that instruction in to all the parameters.

[00:39:40] Speaker 00:
Okay.

[00:39:41] Speaker 00:
I think we're out of time.

[00:39:43] Speaker 00:
Thank you, Mr. Mayor.

[00:39:45] Speaker 00:
Thank all counsel.

[00:39:46] Speaker 04:
The case is submitted.