[00:00:00] Speaker 01:
multiple groundhog day over and over uh... zero one five dash eleven sixty nine delorean publishing versus prior and how do i think you need to be used to use it got it like it you're ready

[00:00:31] Speaker 04:
Your honor, may I please the court?

[00:00:32] Speaker 04:
My name is John Fuse on behalf of the Pellants Prior Tech.

[00:00:36] Speaker 04:
The first issue I'd like to touch briefly on is jurisdiction.

[00:00:39] Speaker 04:
I think it's been well briefed, but there is one point I'd like to make, and that has to do with patent exhaustion.

[00:00:44] Speaker 04:
There was an issue raised with respect to damages.

[00:00:48] Speaker 04:
Is the fear of damages a basis to assume that there's adjustable controversy?

[00:00:54] Speaker 04:
merely because DeLorean thinks they still may have been liable for damages.

[00:00:58] Speaker 04:
Is that a basis for the district court to have assumed jurisdiction?

[00:01:02] Speaker 04:
It is not.

[00:01:04] Speaker 04:
The reason is patent exhaustion.

[00:01:06] Speaker 04:
Had we, Brighter Tech, asked for damages for the product that was sold in violation of the consent order, that would have provided us a license, an implied license.

[00:01:16] Speaker 04:
We would have released it.

[00:01:17] Speaker 04:
We would have essentially undone the consent order.

[00:01:21] Speaker 04:
It's just the opposite.

[00:01:22] Speaker 04:
The existence of a consent order weighs against the fear of damages.

[00:01:29] Speaker 04:
If we ask for damages, we undo what we just got.

[00:01:32] Speaker 04:
That's true in the district court.

[00:01:33] Speaker 04:
We never asked for damages with respect to any product that was subject to the consent order.

[00:01:44] Speaker 04:
The other point I'd like to make is there's a fundamental difference between our petition to the ITC to seek enforcement of

[00:01:52] Speaker 04:
trade laws as opposed to construing solely that petition, whether it be the underlying 854 enforcement investigation or the enforcement action, as somehow a finding of a threat of infringement to DeLorme.

[00:02:08] Speaker 03:
once that once the initial i think you can't let me just say what why this uh... you can tell me why why this is wrong but why this seems to me such a non-starter this jurisdictional objection uh... they file their dj action at a time that you are seeking

[00:02:25] Speaker 03:
an enforcement action against them in the IPC.

[00:02:28] Speaker 03:
They are potentially on the hook for what turned out to be quite a lot of money.

[00:02:33] Speaker 03:
It is at a minimum uncertain what the effect of a district court affirmed final invalidity ruling would be on that.

[00:02:42] Speaker 03:
Doesn't that put into well, well within the heartland of a case or controversy that the validity question could well have

[00:02:54] Speaker 03:
dramatic dollar consequences for them.

[00:02:57] Speaker 04:
No, absolutely not.

[00:02:58] Speaker 03:
Tell me why that's wrong.

[00:03:00] Speaker 04:
Because the consent order is a contract between the LORM and the IGC.

[00:03:04] Speaker 04:
It's not with briar tax.

[00:03:05] Speaker 04:
So what?

[00:03:06] Speaker 04:
You can't contract to put my rights in jeopardy and then drag me into court based on your contract.

[00:03:10] Speaker 03:
They have six million dollars potentially at stake in the invalidity dispute with you.

[00:03:20] Speaker 03:
How's that?

[00:03:20] Speaker 03:
It's not against their controversy.

[00:03:22] Speaker 03:
The six million dollars is not against it.

[00:03:24] Speaker 03:
You sought the six million dollar enforcement action.

[00:03:31] Speaker 04:
I exercised our right to petition the government to take action under a contract that the government was a party to.

[00:03:40] Speaker 04:
Under North Pennington immunity, I can't be held liable nor create liability for petitioning the government to take action.

[00:03:45] Speaker 03:
There's no question of your being liable.

[00:03:46] Speaker 03:
The question is whether there is a real live dispute in which consequences matter to the participants over whether this patent is invalid.

[00:03:56] Speaker 04:
The participants in the consent order are DeLorme and the ITC.

[00:04:00] Speaker 03:
So you don't really care whether this was invalid or not?

[00:04:03] Speaker 04:
Why are you here?

[00:04:04] Speaker 04:
I do care if it was invalid because we were brought into the district.

[00:04:07] Speaker 03:
They care a lot.

[00:04:07] Speaker 03:
You care a lot.

[00:04:09] Speaker 03:
I don't understand what the dispute is about case or controversy.

[00:04:12] Speaker 04:
It's not a basis for jurisdiction.

[00:04:13] Speaker 04:
Under organic seed, there has to be a real judicial controversy.

[00:04:17] Speaker 04:
There has to be a set of facts.

[00:04:19] Speaker 04:
There has to be a concern for violations.

[00:04:21] Speaker 04:
DeLorme tried to have it both ways.

[00:04:23] Speaker 04:
DeLorme tried to walk into the district court and said, we're complying.

[00:04:26] Speaker 04:
But there's also a controversy.

[00:04:28] Speaker 04:
We're not infringing, but we also may be infringing.

[00:04:31] Speaker 04:
Have you ever heard of alternative pleading?

[00:04:34] Speaker 04:
In the context of establishing jurisdiction, there have to be facts.

[00:04:37] Speaker 04:
There have to be facts under which an Article III court assumes jurisdiction and drags a party who has a valid US patent into the court system and forces them to spend money to defend themselves.

[00:04:47] Speaker 04:
There needs to be a basis to do that.

[00:04:50] Speaker 04:
And there was not.

[00:04:51] Speaker 04:
There was none enumerated by Delorum.

[00:04:53] Speaker 04:
There was none enumerated by the district court.

[00:04:55] Speaker 04:
There's none enumerated in the appeal briefs.

[00:04:59] Speaker 04:
So in terms of speculation, if simply fear of invalidity is a basis to assume that the district court has jurisdiction over everyone, well then everyone with a patent has a problem.

[00:05:10] Speaker 04:
We can erase organic seed, we can erase the myriad of case law that's set forth, the facts under which declaratory judgment jurisdiction is public.

[00:05:22] Speaker 04:
That's a petition to the government to enforce it.

[00:05:24] Speaker 01:
You made it.

[00:05:25] Speaker 04:
You made the petition.

[00:05:26] Speaker 04:
A request to the government to institute.

[00:05:28] Speaker 04:
We're not party, just like we're not party to the last appeal.

[00:05:30] Speaker 01:
Did you get to participate in that proceeding?

[00:05:32] Speaker 01:
Yes, we did.

[00:05:32] Speaker 04:
You're an interested party.

[00:05:34] Speaker 04:
We're an interested party, but we weren't allowed to participate in the appeal.

[00:05:37] Speaker 01:
And wait, didn't the government attorney just stand up here a minute ago and tell me that if there was a remand to the ITC, they would have to solicit, in addition, briar text views on the consent order and what should happen?

[00:05:48] Speaker 01:
He stood there and said that.

[00:05:49] Speaker 04:
Whether they would like our opinions or not.

[00:05:51] Speaker 04:
or comments is up to the ITC.

[00:05:53] Speaker 04:
I don't know if I have a right to participate in any of those proceedings.

[00:05:57] Speaker 04:
Enforcement action is between the ITC and the law.

[00:06:01] Speaker 04:
I don't believe I ever write, just like I didn't ever write to participate in their appeal.

[00:06:04] Speaker 01:
But in the enforcement action, when you petitioned, weren't you claiming that the acts that they were committing by importing the part and then putting everything back together again amounted to infringement?

[00:06:16] Speaker 01:
Violation of the consent order.

[00:06:17] Speaker 01:
Which said infringement.

[00:06:20] Speaker 04:
We have to be careful, because in the TI case, the Lanning case, the number of cases that have compared ITC jurisdiction with district court jurisdiction.

[00:06:28] Speaker 04:
They've specifically drawn a distinction between seeking violation of trade laws at the IPC versus seeking infringement.

[00:06:35] Speaker 04:
The entire distinction there is the entire basis for which there's no rest judicata.

[00:06:40] Speaker 04:
There's no conclusive effect from one venue to the other.

[00:06:43] Speaker 01:
I don't understand how any of this matters.

[00:06:45] Speaker 01:
I don't understand your answer, but the Consent Order expressly says the alarm shall not import into the United States, sell out for importation.

[00:06:53] Speaker 01:
the system and components that infringe claims 1, 2, 5, 10 to 12 of the 380 patent.

[00:07:01] Speaker 01:
That's what the consent order says.

[00:07:02] Speaker 01:
They can't bring things in that infringe these patent claims.

[00:07:05] Speaker 01:
You, the patentee, went to the ITC, encouraged them with your petition for enforcement that they were violating the consent order, which required them to be infringing these claims of the patent, otherwise they couldn't be violating the consent order.

[00:07:19] Speaker 01:
How is that not an accusation of present-day infringement?

[00:07:21] Speaker 04:
Because it's a petition for the government to take action on a contract that the government is party to.

[00:07:26] Speaker 04:
Judge Moore, if you enter into a contract with Judge Toronto, and you secretly decide that this contract will be based on something that Judge Renier does.

[00:07:35] Speaker 04:
And he's totally unaware of it.

[00:07:37] Speaker 04:
You can't drag him into court because you've conditioned your contract on the actions of a third party.

[00:07:42] Speaker 04:
The third party who's not in privity, who's not a party to the contract, can't be dragged in.

[00:07:47] Speaker 01:
You were the one that encouraged the ITC that they were infringing the 380 patent by the activities that were being performed after the entry of the consent order.

[00:07:56] Speaker 01:
You accused them of that in your petition for enforcement.

[00:07:59] Speaker 01:
They are infringing by virtue of the actions they take.

[00:08:01] Speaker 01:
They're infringing our

[00:08:02] Speaker 01:
380 patents, you should go after them for enforcement.

[00:08:05] Speaker 01:
That is a threat of infringement.

[00:08:07] Speaker 01:
The fact that you made it to the ITC and didn't make it directly to them seems to me irrelevant, since of course they're copied on the plating.

[00:08:15] Speaker 04:
I can't incur liability for petitioning the federal government for that.

[00:08:19] Speaker 01:
It's not a matter of incurring liability.

[00:08:20] Speaker 01:
It's a matter of opening yourself up to case or controversy jurisdiction.

[00:08:24] Speaker 01:
Nobody in this courtroom has ever suggested that you are incurring liability, that there's going to be some sanction from you, some damages.

[00:08:31] Speaker 01:
As far as I know, DeLorme's not seeking damages from you.

[00:08:35] Speaker 04:
If I'm not incurring liability, where's the case or controversy?

[00:08:37] Speaker 04:
With me.

[00:08:39] Speaker 04:
I don't think there is one.

[00:08:40] Speaker 04:
With me, with Briar Tech, there is not.

[00:08:43] Speaker 04:
The petition to the federal government, whether it's to your honor, whether it's to the White House, whether it's to the Senate, cannot be the basis of a case or controversy with another party.

[00:08:55] Speaker 04:
Otherwise, you would eviscerate North Pennington immunity.

[00:08:59] Speaker 04:
But let me move on.

[00:09:02] Speaker 04:
With respect to the ITC case, clearly claim two is the claim that's of issue.

[00:09:07] Speaker 04:
Claim two has been invalidated under OrbCom.

[00:09:10] Speaker 04:
The first issue I'd like to address with OrbCom is it was challenged as to whether or not OrbCom's prior OrbCom is not a patent.

[00:09:16] Speaker 04:
It's not a patent publication.

[00:09:17] Speaker 04:
It is an article.

[00:09:20] Speaker 04:
At the district court, we did challenge whether or not Oricom was an enabling prior art.

[00:09:24] Speaker 04:
Enabling prior art is different from 112 enablement.

[00:09:27] Speaker 04:
It has to do with whether or not the device can be operational.

[00:09:30] Speaker 04:
That is precisely the grounds under which we challenged.

[00:09:35] Speaker 04:
Note that at our brief at page 53 and 54, it was not rebutted by DeLoren.

[00:09:40] Speaker 04:
It was not addressed by the district court, and it was not rebutted by DeLoren.

[00:09:44] Speaker 04:
It was not our burden to prove enablement or the prior art.

[00:09:49] Speaker 04:
At this point, with respect to OrbCom, we challenged whether or not it was enabled.

[00:09:55] Speaker 04:
There has been no rebuttal to that.

[00:09:57] Speaker 04:
I think OrbCom should disappear as prior art.

[00:10:00] Speaker 04:
That takes care of the claim to anticipation.

[00:10:07] Speaker 04:
OrbCom is also invalidated under obviousness in view of... It was OrbCom in view of debris, in view of Motorola.

[00:10:19] Speaker 04:
That was an obviousness combination that the district court made up, that there was no briefing on.

[00:10:24] Speaker 04:
There are no facts to support.

[00:10:28] Speaker 04:
We did put in evidence that randomly combining different references would not be supported by one of ordinary skill in the art.

[00:10:36] Speaker 03:
You have to have evidence to show that randomly combining references?

[00:10:40] Speaker 03:
Yes, because it's a similar issue to the original patent disclosed.

[00:10:43] Speaker 03:
I'll speculate that randomly combining references doesn't establish anything.

[00:10:48] Speaker 04:
You and I are in agreement.

[00:10:52] Speaker 04:
With respect to debris, I would like to comment on debris briefly.

[00:11:00] Speaker 04:
When the summary judgment was filed, there was no claim construction.

[00:11:04] Speaker 04:
There were no markman briefs.

[00:11:06] Speaker 04:
I'll say that claim construction didn't matter as an understatement.

[00:11:09] Speaker 04:
There was not.

[00:11:10] Speaker 04:
Mark and Grease were filed after the summer judgment motion was filed.

[00:11:14] Speaker 03:
The district court said, I thought, at least once, maybe twice, that you either affirmatively said or never said the contrary, that no claim construction dispute would alter the invalidity analysis.

[00:11:31] Speaker 03:
Not at all.

[00:11:31] Speaker 03:
Is she just wrong about that?

[00:11:32] Speaker 04:
Absolutely.

[00:11:33] Speaker 04:
Because under our claim construction,

[00:11:34] Speaker 04:
We didn't think there was any invalidity issues.

[00:11:36] Speaker 04:
In fact, that was the concern with text entry device.

[00:11:40] Speaker 04:
It was defined and adopted by the court as a keypad or virtual keypad capable of entering detailed text messages.

[00:11:46] Speaker 04:
The district court then goes on to dismiss our expert that detail does not appear in the claim construction and therefore his distinguishing between detailed and pre-canned messages was for naught.

[00:11:56] Speaker 04:
The district court ignored the claim construction that she claimed that she was contingently applying.

[00:12:06] Speaker 01:
I have a procedural question.

[00:12:09] Speaker 01:
In her order, which is at J60, she declares the 380 patent invalid.

[00:12:17] Speaker 01:
But as best as I can tell, the only thing at issue in the district court litigation seems to me to be the asserted claim.

[00:12:27] Speaker 01:
And the asserted claims are limited to 1, 2, 5, to 12, 17, 34, and 35.

[00:12:36] Speaker 01:
wrong about that and obviously you know even if we were to disagree with you on the invalidation of those asserted claims, I assume you don't want the whole patent invalidated.

[00:12:45] Speaker 04:
Correct your honor, I took that more or less as a shot across the barrel.

[00:12:48] Speaker 04:
If you look at footnote 18 page 43A0058 the district court also expressed your opinion concerning other priorities you can invalidate the patent on basically if it comes back to it.

[00:13:00] Speaker 03:
I'm sorry, what was the second?

[00:13:01] Speaker 04:
Footnote 18A

[00:13:03] Speaker 01:
I'm on A43.

[00:13:05] Speaker 01:
Is that what you said?

[00:13:06] Speaker 04:
I'm sorry, 58.

[00:13:07] Speaker 04:
Page 43 of the order is A0058.

[00:13:11] Speaker 04:
Footnote 13.

[00:13:17] Speaker 01:
I didn't assume this was meaning, this footnote was meaning to cover all of the other claims.

[00:13:26] Speaker 01:
I thought this was meaning to say that these claims might be invalid for these alternative reasons.

[00:13:32] Speaker 04:
Correctly.

[00:13:33] Speaker 04:
I interpret that to be that there are going to be multiple reasons.

[00:13:36] Speaker 04:
She was taking out the patent and she was also... Taking out the patent, time out.

[00:13:40] Speaker 01:
The memorandum seems to be written in terms of the claim, doesn't it?

[00:13:47] Speaker 01:
But the order seems to be written in terms of the patent.

[00:13:50] Speaker 04:
I agree, Your Honor.

[00:13:52] Speaker 04:
It should have been limited to the claims, but it wasn't.

[00:13:59] Speaker 01:
But it's not your belief that she was intending to invalidate the whole patent.

[00:14:04] Speaker 01:
Do you think the order was simply a mistake on her part, the language of the order?

[00:14:08] Speaker 04:
I don't know what she was thinking at this point, Your Honor.

[00:14:11] Speaker 04:
Certainly the order does not conform to the motions or to the arguments presented by the parties.

[00:14:18] Speaker 01:
You save the rest of your time for rebuttal, Mr. Brand.

[00:14:21] Speaker 01:
Can you just start with that last point, Mr. Brand?

[00:14:23] Speaker 01:
I'm just a little curious about the language of the order, which does declare the entire patent invalid.

[00:14:30] Speaker 00:
On this one, we agree with what I think I heard Briar Tech just say, which is that what was invalidated were the asserted claims.

[00:14:37] Speaker 00:
And which were the ones that you just identified?

[00:14:41] Speaker 01:
And so you don't believe that she has, by virtue of this order, invalidated all the claims of the 380 patents?

[00:14:48] Speaker 01:
No.

[00:14:48] Speaker 01:
But your belief may be a little shallow for them if they try to assert these patents against someone else, and then that person tries to bring a collateral estoppel argument on the basis of this order.

[00:14:59] Speaker 00:
And honestly, I would, you know... You wouldn't involve.

[00:15:03] Speaker 00:
I certainly hope not.

[00:15:04] Speaker 00:
So yes, those were the only claims that were asserted against us.

[00:15:08] Speaker 00:
All the asserted claims against Delorme were invalidated.

[00:15:12] Speaker 01:
And those are the only claims you understand to have been involved in the district court litigation?

[00:15:15] Speaker 01:
Correct.

[00:15:16] Speaker 03:
Except that your declaratory judgment action asked for invalidation of the whole patent.

[00:15:25] Speaker 00:
It did.

[00:15:26] Speaker 00:
But the summary judgment motion went to the asserted claims.

[00:15:32] Speaker 03:
One has to pay some attention to what might be viewed as technicalities here.

[00:15:37] Speaker 03:
But your claim that started this case applies to all of the claims.

[00:15:43] Speaker 03:
The summary judgment ruling, if one interpreted it as really only resolving the asserted claims, and you haven't given up

[00:15:55] Speaker 03:
the other claims there's no final judgment.

[00:15:58] Speaker 00:
Well we simply because there were never any other claims asserted against us.

[00:16:04] Speaker 00:
For our purposes we consider it a done and obviously prior tech did as well.

[00:16:09] Speaker 03:
We are not challenging that as a final judgment.

[00:16:12] Speaker 03:
We obviously given I think the positions of the parties are not going to let stand an over-broad order.

[00:16:20] Speaker 03:
Is the remand on that on all of the claims other than the enumerated ones to say that they should be dismissed without prejudice or what?

[00:16:31] Speaker 00:
I would think that they should be dismissed without prejudice.

[00:16:33] Speaker 00:
They were never asserted in the litigation.

[00:16:35] Speaker 00:
So it strikes me that... Kept in the complaint.

[00:16:38] Speaker 00:
Correct.

[00:16:39] Speaker 00:
Obviously, in our DGA, obviously, you know, we don't know at that point which ones are going to be asserted.

[00:16:44] Speaker 00:
But yes, it's true.

[00:16:47] Speaker 00:
On the substance of this appeal, applying Briartech's proposed claim constructions and Briartech's definition of a person of ordinary skill, the district court properly invalidated

[00:16:58] Speaker 00:
all of the asserted claims of the 380 patent on multiple grounds.

[00:17:02] Speaker 00:
Under section 102, the court found that all of the asserted claims were anticipated under two references.

[00:17:09] Speaker 03:
Can you clarify what I'm still confused about?

[00:17:13] Speaker 03:
The district judge said

[00:17:15] Speaker 03:
at least once that prior tech either by affirmative statement or omission seem to accept the idea that although there might be disagreement about the construction of the claims any such disagreement had no bearing on the validity analysis.

[00:17:37] Speaker 03:
Where did, can you just clarify that for me?

[00:17:39] Speaker 00:
The district court said that with respect to both of the claim construction and the person of ordinary are

[00:17:45] Speaker 00:
And indeed, there's no challenge to that on this appeal.

[00:17:48] Speaker 00:
If you read through the Briar Tech brief and say, well, where does that claim construction make a difference?

[00:17:54] Speaker 00:
The fact that they accepted it didn't make a difference, whether you took the word.

[00:17:57] Speaker 03:
So just to clarify for me, did Briar Tech affirmatively say to the district court, we have disagreements about claim construction, but they do not matter for the invoicing?

[00:18:08] Speaker 00:
They said we have disagreements about claim construction, and they never said why it mattered.

[00:18:14] Speaker 02:
Did they attempt to argue that it mattered and fail?

[00:18:18] Speaker 02:
Is that what you're saying?

[00:18:19] Speaker 00:
They never even tried.

[00:18:21] Speaker 00:
Our position is they never tried in the district court, and they didn't try here to show how any of it made any difference whatsoever.

[00:18:28] Speaker 00:
And the court found not only did it, so it adopted theirs, but said, and Briar Tech doesn't show me in any of these arguments why it makes any difference whatsoever.

[00:18:40] Speaker 00:
And indeed, there's nothing to that effect.

[00:18:42] Speaker 01:
uh... but wait i mean what about the pre-canned messaging uh... mutual communication using detailed text messaging is required by claim one what about that if she had adopted their definition then it would seem to me that orcom couldn't anticipate no we would disagree because first of all their proposal which was not on the claim but said that they need to be capable of detailed text messaging which she accepted it doesn't mean that it only applies to detailed text messaging

[00:19:11] Speaker 00:
Because the claims don't actually say that.

[00:19:14] Speaker 00:
And there's no suggestion that they do.

[00:19:16] Speaker 00:
And indeed, it just says that they have to be capable of it.

[00:19:20] Speaker 00:
And what we heard today on Debris is indeed.

[00:19:23] Speaker 01:
Yeah, I meant Debris.

[00:19:24] Speaker 01:
I'm sorry.

[00:19:25] Speaker 00:
That's OK.

[00:19:26] Speaker 00:
Thank you for clarifying.

[00:19:27] Speaker 00:
That's fine.

[00:19:28] Speaker 00:
But Debris, and we direct the court to page 908, 908 of the appendix, actually disclosed detailed text messaging as part of its

[00:19:41] Speaker 00:
part of that prior art.

[00:19:44] Speaker 00:
And indeed, so first it didn't make any difference because it only had to be capable of.

[00:19:48] Speaker 00:
De Vries actually disclosed it.

[00:19:50] Speaker 00:
And indeed, as was noted this morning, the district court, in sort of a belt and suspenders approach, not only found that that was anticipated under section 102.

[00:20:00] Speaker 01:
Well, but their expert opines that it didn't disclose that, that it only disclosed precant messaging.

[00:20:06] Speaker 01:
And isn't what a prior art reference discloses a question fact?

[00:20:10] Speaker 00:
except that you can't just put in an expert declaration that just says that I don't think this is true without something to ground it or to explain it or to give it some sort of some reason to think that there is something to support it because otherwise all you would ever have to do to defeat an anticipation argument is to come find someone who says I'm an expert and I just don't think it does it.

[00:20:34] Speaker 00:
It doesn't disclose it.

[00:20:36] Speaker 01:
And indeed, to the extent that the expert... So where would you tell me to look in degrees for mutual communication using detailed text messaging?

[00:20:45] Speaker 00:
I would look in the appendix at page 908.

[00:20:51] Speaker 00:
But to follow up on that, Orcom certainly discloses that with regard to the

[00:21:04] Speaker 00:
With beyond that, what I was going to say is that the judge went on to say, in a separate part of the opinion, that De Vries, as a primary reference, with the combination of the Motorola manual, which nobody suggested, did not disclose detailed text messaging, actually rendered this obvious.

[00:21:28] Speaker 00:
And there's no just applying

[00:21:33] Speaker 03:
applying those two references together, whether you get it under anticipation, under debris alone, or you do it with... And the 908, is this down on the bottom of the left-hand column, paragraph 37, and another embodiment the operator unit may further comprise a keypad not shown that allows composition of text messages while the boater is underway?

[00:21:53] Speaker 00:
And if you compare that, if you compare that disclosure to what was actually in this patent, which is just talking about a text entry device,

[00:22:07] Speaker 00:
The text entry device adapted to receive textual data.

[00:22:12] Speaker 00:
It has the same level of detail that you actually have in this path, which is one of the reasons one of our alternative arguments below was that this was actually invalid under section 101 as well.

[00:22:24] Speaker 00:
It really tells you very little.

[00:22:26] Speaker 00:
And degrees actually provide you in the reference to Judge Sharando that you just quoted, more detail than is actually in the path itself.

[00:22:34] Speaker 00:
and so it certainly we would submit that the reference itself anticipates just on the plain language alone.

[00:22:43] Speaker 00:
And so putting in a declaration from your expert... And if not, it renders it obvious in light of ORCOM.

[00:22:47] Speaker 01:
Yes, I understand your argument.

[00:22:48] Speaker 01:
Anything else that you think you need to cover today?

[00:22:51] Speaker 00:
No, I think I'm almost done.

[00:22:52] Speaker 01:
Thank you.

[00:22:53] Speaker 01:
Thank you, Mr. Brand.

[00:22:54] Speaker 01:
Mr. Hughes, do you have a little bit of a final timeline?

[00:22:57] Speaker 04:
Very quickly, I think just to clarify a point of claim construction that Judge Taranto

[00:23:01] Speaker 04:
On page, the appendix A0508, that is the actual summary judgment motion, shows the claim on rejection.

[00:23:13] Speaker 04:
It is a single paragraph.

[00:23:15] Speaker 04:
There's no element by element comparison.

[00:23:18] Speaker 04:
There is no claim construction.

[00:23:20] Speaker 04:
At the point in time that this is filed, neither party's claim construction is before the court.

[00:23:28] Speaker 03:
So what did you say in opposition to this?

[00:23:33] Speaker 04:
We raised that claim construction was necessary to perform an invalidity analysis.

[00:23:36] Speaker 04:
That's when the judge asked for our positions on claim construction.

[00:23:38] Speaker 03:
But did you go beyond that abstract point to say, here are specific reasons that our construction of this term versus their construction of that term produces a different result of this claim element read on this prior article?

[00:23:53] Speaker 04:
Which is our basis for distinction detail text message, which is a text entry device.

[00:23:57] Speaker 04:
had the construction actually been applied, that the court claims it adopted, it would have used the word detail.

[00:24:03] Speaker 04:
It would have given way to our expert when he indicated there was no detailed text messaging.

[00:24:08] Speaker 04:
And just so your honors clear, the detailed text messaging is not something that's just made up.

[00:24:13] Speaker 04:
It comes directly out of the patent.

[00:24:20] Speaker 04:
It's A0072, column four,

[00:24:26] Speaker 04:
Line 11, it specifically distinguishes between preset and detailed text messages.

[00:24:39] Speaker 04:
So column four, line 11, so that the user can enter a detailed text message when able and can send a general category message when unable.

[00:24:53] Speaker 01:
Okay, Mr. Fuse, I think our time is well past expired for today.

[00:24:56] Speaker 01:
I thank both counsels for their argument.

[00:24:58] Speaker 01:
The case is taken under submission.