[00:00:00] Speaker 00: The case for argument this morning is 14-1349 E-Links Corporation versus Interworking. [00:00:08] Speaker 00: Mr. Nicholson, whenever you're ready. [00:00:15] Speaker 03: Good morning, Your Honor. [00:00:15] Speaker 03: Darren Nicholson on behalf of E-Links Corporation. [00:00:19] Speaker 03: May it please the Court, at its heart, this is an appeal about claim construction. [00:00:24] Speaker 03: There are three principal leases. [00:00:26] Speaker 03: why this court should reverse and demand the district court's entry of summary judgment. [00:00:31] Speaker 03: The first issue is the district court misconstrued the claim claim buyer in claim construction. [00:00:37] Speaker 03: The second issue is that the district court disregarded its claim construction of the so-called vendor pool limitation and instead imposed a new limitation in summary judgment. [00:00:48] Speaker 03: And the third issue, the district court erred in its construction of the term vendor capability data. [00:00:54] Speaker 03: finding a disclaimer in the prosecution history where none existed. [00:00:59] Speaker 03: As the court obviously knows from the briefing, the first two issues that I've identified relate specifically to appellee interworkings. [00:01:07] Speaker 03: The third issue relates to appellee circuit. [00:01:10] Speaker 03: Turning to the first issue, the district court construed the term buyer to mean the ultimate purchaser of a customized goods for service. [00:01:19] Speaker 03: And I think there's two initial observations one can make [00:01:22] Speaker 03: about that particular construction. [00:01:23] Speaker 03: The first is the use of the word purchaser is totally unnecessary. [00:01:27] Speaker 03: Purchaser and buyer are synonyms, just as the root words, buy and purchase, mean the same thing. [00:01:33] Speaker 03: Let me ask you a question. [00:01:34] Speaker 03: Yes, Your Honor. [00:01:35] Speaker 04: I'd like to give people a chance to clarify things. [00:01:39] Speaker 04: In the red brief at page 23, inner working says that although the E-Link claims that the parties agree to these terms, and that is [00:01:52] Speaker 04: the term buyer to the terms plain meaning by citing the same dictionary definition of buyer, E-Link simply ignores the fact that the definition of pro-offers two different meanings, one who buys and one who consumes, one of which encompasses intermediaries, deal with that place. [00:02:18] Speaker 03: Yes, it is true that in the definition of the word buyer, it means one who buys were a consumer. [00:02:26] Speaker 03: The difference is that in claim construction, no one argued or proffered a definition of the word consumer. [00:02:32] Speaker 03: It wasn't discussed or even addressed with the district court. [00:02:35] Speaker 03: Furthermore, the patents, the specifications, the prosecution history, the claims don't address the word consumer, don't even use the root word consume. [00:02:44] Speaker 03: And when one looks at the patents in their totality, [00:02:46] Speaker 03: The purpose of the patent is to facilitate a transaction between a buyer on the one hand and a vendor or a seller on the other. [00:02:54] Speaker 03: It really doesn't speak to consumption or use at all. [00:02:58] Speaker 03: So you felt free to simply ignore that part of it? [00:03:02] Speaker 03: Well, it wasn't ignoring that part of the definition. [00:03:05] Speaker 03: It's clearly in there as part of the definition. [00:03:09] Speaker 03: But it's an and. [00:03:10] Speaker 03: It could mean both of those things. [00:03:11] Speaker 03: And obviously, depending upon the context, the buyer may, in certain circumstances, [00:03:17] Speaker 03: mean a consumer, but there is simply absolutely nothing to suggest in the specification, the claims, or the prosecution's history what the fundamental purpose of the patent, that it really had anything to do with the meaning of the word consumer. [00:03:30] Speaker 00: I would... Except that the district court judge did look at the context of the claim term and did, and part of his construction was based on the fact that the claim also recited by or behalf of a buyer. [00:03:43] Speaker 00: And so he thought those words would be rendered superfluous under your definition. [00:03:48] Speaker 00: That seems to make sense to me. [00:03:49] Speaker 03: Why does that not make sense? [00:03:53] Speaker 03: That doesn't make sense for a couple of reasons. [00:03:56] Speaker 03: First, in ordinary usage, when one does something on behalf of a principal, the phrase on behalf of doesn't define the principal. [00:04:02] Speaker 03: I'm here today on behalf of my client that tells you something about me, the third party. [00:04:07] Speaker 03: I'm a lawyer. [00:04:08] Speaker 03: I'm here as a representative. [00:04:09] Speaker 03: But it doesn't tell you anything about the client. [00:04:11] Speaker 03: Client may be a lawyer or may not. [00:04:13] Speaker 03: Client may be an intermediary or not. [00:04:16] Speaker 03: An ordinary usage on behalf of doesn't define the principle. [00:04:20] Speaker 03: Specifically, how it's used in the claims, on behalf of doesn't even refer to an intermediary. [00:04:26] Speaker 03: The claims speak in terms of a buyer interacting with the system, and in two instances, one may interact with the system on behalf of the buyer. [00:04:35] Speaker 03: One may seek a bid, one may input electronic communications with job data. [00:04:41] Speaker 03: That's a one-way communication. [00:04:42] Speaker 03: That's not an intermediary. [00:04:44] Speaker 03: An intermediary is one who mediates it to go between. [00:04:47] Speaker 03: That's a one-way communication that's permitted by the claims. [00:04:50] Speaker 03: It is used in the claims on behalf of, it doesn't prefer to an intermediary. [00:04:53] Speaker 03: An intermediary can obviously work on behalf of a buyer, but it's not required. [00:04:59] Speaker 03: It could be an employee. [00:05:02] Speaker 03: It could be a broker. [00:05:03] Speaker 03: It could be an agent. [00:05:04] Speaker 03: It could be somebody's uncle. [00:05:05] Speaker 03: It doesn't really matter. [00:05:06] Speaker 03: The claims don't specify who on behalf of is, and they don't need to specify. [00:05:11] Speaker 03: All on behalf of means is someone other than the buyer who has the authority to submit those communications with the permission or the consent or the authority of the buyer. [00:05:22] Speaker 03: In other words, in order to give meaning to the phrase on behalf of, one does not need to change or alter the fundamental definition of the word buyer. [00:05:32] Speaker 03: It's simply unnecessary. [00:05:34] Speaker 04: The 106 patent seeks to eliminate administrative cost [00:05:41] Speaker 04: search and information cost, correct? [00:05:48] Speaker 04: The expanded construction of buyers would include inner workings, right? [00:05:57] Speaker 03: Well, just to clarify, I don't think it's an expanded construction. [00:06:00] Speaker 03: I think it's the ordinary use of a buyer, but it would encompass your construction. [00:06:05] Speaker 04: Your construction would, okay. [00:06:09] Speaker 04: But [00:06:11] Speaker 04: What Inner Workings does is exactly what the patent seeks to eliminate, administrative and information. [00:06:20] Speaker 03: What Inner Workings does is a broker print between its customers and vendors. [00:06:26] Speaker 03: It certainly does do that. [00:06:27] Speaker 03: The heart of the patent is to reduce the administrative expense and teaches a method of maintaining and manipulating a database. [00:06:35] Speaker 03: There's no dispute that Inner Workings does do that. [00:06:38] Speaker 03: And the purpose of the patent [00:06:40] Speaker 03: business to replace brokers. [00:06:42] Speaker 03: It wasn't to replace any specific buyer. [00:06:44] Speaker 03: I'm sorry. [00:06:44] Speaker 04: Let me take you back for a second. [00:06:46] Speaker 04: Sure. [00:06:46] Speaker 04: There's no dispute that Interworking does do that. [00:06:50] Speaker 03: Define that. [00:06:52] Speaker 03: There's no dispute that Interworking buys print. [00:06:55] Speaker 03: There's no dispute that Interworking functions as a broker in the marketplace. [00:06:58] Speaker 03: There's no dispute that once Interworking buys the print, it resells it to its customer. [00:07:04] Speaker 03: There's also no real dispute that InnerWorkings uses the PPM4 system to make those acquisitions, to make those purchases. [00:07:11] Speaker 03: And in that sense, it is a buyer. [00:07:13] Speaker 03: InnerWorkings did produce its administrative costs by using this technology, by using the specific database and maintaining it in a way that infringes on the patents. [00:07:22] Speaker 03: The patents don't speak in terms of eliminating a specific type of buyer. [00:07:27] Speaker 03: It just speaks in terms of reducing the administrative costs of the buyer. [00:07:32] Speaker 00: Was there a 101 challenge to this? [00:07:36] Speaker 03: The only challenge that was made at the district court was for indefiniteness and lack of specification. [00:07:44] Speaker 03: That was denied by the district court. [00:07:47] Speaker 03: But there's been no validity challenge. [00:07:48] Speaker 03: There's been no eligibility challenge. [00:07:50] Speaker 03: The only issue before the court today is simply the claim construction and the district court's injury summary judgment. [00:08:02] Speaker 03: Turning to the second issue of the vendor pool limitation, the district court construed the term vendor pool. [00:08:12] Speaker 01: Let me ask you, before you leave the buyer, you make an argument in your brief about the distinction between an intermediary and an agent, right? [00:08:23] Speaker 04: Yes. [00:08:24] Speaker 01: Yes. [00:08:24] Speaker 01: And then you say that that distinction is important here. [00:08:28] Speaker 01: That argument was not made, I take it, [00:08:30] Speaker 01: in the original response to the summary judgment motion, at least to the district court, there was waiver. [00:08:38] Speaker 03: The district court's argument about waiver doesn't really speak to claim construction. [00:08:43] Speaker 03: We weren't asking for a hearing on the construction of the term buyer. [00:08:47] Speaker 01: Well, let's get directly to the question then. [00:08:50] Speaker 01: The district court said you waived that argument, and I didn't see a response in your brief to that waiver finding. [00:08:57] Speaker 01: Did you not respond to that? [00:08:59] Speaker 01: Because I didn't see it. [00:09:01] Speaker 03: There is no waiver with respect to the construction. [00:09:06] Speaker 01: Before we get there, did you respond to the district court's finding of waiver? [00:09:10] Speaker 01: The district courts explicitly made a finding of waiver. [00:09:13] Speaker 03: Above and beyond the challenge of the construction, no. [00:09:19] Speaker 04: You want to turn to the pool of vendors, but if we accept as correct the district court's construction of fire, [00:09:31] Speaker 04: You lose on pool of vendors, do you not? [00:09:35] Speaker 03: If the court accepts the district court's construction of the claim term buyer, that resolves the issue with respect to the 106. [00:09:43] Speaker 03: It does not resolve the issue with respect to the 143, because the on behalf of language is used in more claims and elements in the Therefore Brokers. [00:09:52] Speaker 03: You do need to address the vendor pool issue, as district court did, to get to the 143. [00:10:01] Speaker 03: With respect to the second issue, the phrase used in the patents is the pool of vendors associated with said buyer. [00:10:09] Speaker 03: And the district court did construe that phrase to mean two or more vendors associated with a buyer that could potentially receive a job solicitation from that buyer. [00:10:19] Speaker 03: There are two points to make with respect to the pool of vendors. [00:10:23] Speaker 03: There are two different pools disclosed in the claims and the specification. [00:10:27] Speaker 03: The first pool is [00:10:28] Speaker 03: an association that is required between a buyer and a vendor. [00:10:32] Speaker 03: That is the beginning and the end of the creation of that pool. [00:10:35] Speaker 03: The second occurs after the comparison of vendor capabilities and job data, and that creates a subset as defined in the claims. [00:10:44] Speaker 03: I want to make that distinction clear because when you look through the patent prosecution and specification, references to subset invariably refer to the second defender pool, not the first. [00:10:56] Speaker 03: And I see that I'm running into my rebuttal time, but there are further questions. [00:11:00] Speaker 00: Now, why don't you say that, and we'll hear from your colleague. [00:11:02] Speaker 03: Thank you. [00:11:20] Speaker 02: Good morning. [00:11:21] Speaker 02: And may it please the clerk. [00:11:29] Speaker 02: I can take the issues in either order, obviously. [00:11:31] Speaker 02: I'm supposed to pick up a vendor tool where accounts are left off, in part because it's directly dispositive of both claims. [00:11:38] Speaker 02: Our point there is a simple one. [00:11:40] Speaker 02: The claims require [00:11:42] Speaker 00: So can I ask you just a logistical question to follow up to Tuolux? [00:11:46] Speaker 00: I mean, he was trying to ascertain whether or not if we construe Breyer and agree with the fire and agree with the district court, we're done. [00:11:53] Speaker 00: And the answer was no, because we've got the others. [00:11:56] Speaker 00: Is it your view that if we construe Hula vendors and affirm the district court, that disposes of both patents? [00:12:02] Speaker 02: Definitely. [00:12:03] Speaker 02: And that claim element is founded [00:12:06] Speaker 02: all of these sort of claims from both patents, that obviously applies equally, there are no differences. [00:12:10] Speaker 02: So that one directly, and I don't think there's a dispute about that, but that one directly, no more connecting dots, directly resolves both. [00:12:18] Speaker 01: And our point- Well, the term buyer, I take it, aside from the question of whether it directly controls the disposition of one of the patents and not the other, it's a very important term with respect to the vendor pool limitation, I take it, [00:12:35] Speaker 01: If buyers construe the way you urge that it be construed, then that influences the vendor pool discussion because something has to be associated with the buyer, which would mean, presumably, that it would not be sufficient for it to be associated with the intermediary inner workings. [00:12:54] Speaker 02: Which is why it's a practical matter, I think. [00:12:55] Speaker 02: Either acclaimed destruction is dispositive. [00:12:57] Speaker 02: The pool of vendors directly, the buyer, I mean, it is dispositive because if you recognize that the buyer is the inner workings client, [00:13:06] Speaker 02: then it should be self-evident that there's no vendor pool associated with the buyer, because the buyer being the client has absolutely nothing to do with anything in the system. [00:13:15] Speaker 02: So with that additional little gap, with the additional little jump, absolutely either claim ends up being dispositive of the other, you know, resolving everything. [00:13:23] Speaker 02: And the point on vendor pool is there are two ways for us to win. [00:13:26] Speaker 02: One is construction of buyer, which makes it obvious that whatever they want to call a vendor pool is not associated with him or with his client. [00:13:32] Speaker 02: The second is that regardless of exactly what the vendor pool limitation entails, there's just not a vendor pool here associated with anyone, because the claim language expressly requires that the system be capable of receiving three different electronic communications that establish three different sets of vendors. [00:13:51] Speaker 02: The first limitation is a communication from vendors establishing vendor records. [00:13:56] Speaker 02: The second that is issued here is a communication from a buyer, or in one of the patents, so that can be half of a buyer. [00:14:02] Speaker 02: establishing that buyer's specific vendor pool, identifying which vendors to put in that person's vendor pool, and then also storing that data in the system. [00:14:13] Speaker 02: It's that step, before we get to bid data or any other comparisons, that just doesn't happen here. [00:14:19] Speaker 02: Because the undisputed evidence is that the way interworking system works is that you have something that's analogous to the vendor records in limitation one. [00:14:28] Speaker 02: But then once a particular client's bid data is received, there's a particular job to put out, the system will automatically, every time, compare the job data to the entire set of vendor records from the first limitation. [00:14:43] Speaker 02: The second limitation of creating an intermediate vendor pool before you get to job data just doesn't exist in any way, shape, or form in the accused system, which is why it doesn't matter exactly what that limitation entails, because it just doesn't exist here, period. [00:14:57] Speaker 02: And that's why the district court in term of summary judgment that there was no genuine dispute of material fact that based on the employee testimony, for example, of their working personnel who interact with the system, that the system is not capable of comparing job data to anything other than the full set of vendor records from the first limitation. [00:15:17] Speaker 02: And that if a client wanted to have its job data compared to a smaller set of vendors, not all of them, the system is simply not capable of doing that. [00:15:26] Speaker 02: That was the undisputed, on-point, direct testimony. [00:15:30] Speaker 02: And so to overcome similar judgment on that, they then would have to present evidence that the inner workings employees were wrong or were lying about how their system worked. [00:15:39] Speaker 02: And they didn't. [00:15:40] Speaker 02: As the district court found, they presented an entirely conclusory, expert affidavit that just said otherwise, but didn't give any explanation or support at all. [00:15:48] Speaker 02: And that's another finding. [00:15:50] Speaker 02: that they didn't dispute in their opening or even their reply briefs. [00:15:53] Speaker 02: And the district court found that the only evidence they tried to put in was not reliable expert testimony because it was inclusory. [00:15:59] Speaker 02: They didn't try to connect the dots and frankly couldn't have. [00:16:03] Speaker 02: And again, they haven't disputed that even in their reply briefs. [00:16:05] Speaker 02: So that's another basic waiver issue as to how there's just no genuine dispute of material facts here on the pool of vendors issue, regardless of who the buyer is and regardless of exactly what that limitation means. [00:16:17] Speaker 02: Now, on buyer, [00:16:20] Speaker 01: Very quickly, could you address the argument that the pool of certified buyers is a vendor pool? [00:16:29] Speaker 02: Yeah, the point about certified buyers is this. [00:16:33] Speaker 02: There are some buyers in the system that are certified status, and there are different types of status. [00:16:39] Speaker 02: So if you're certified gold, that gives you what the documents refer to as a quote preference. [00:16:44] Speaker 02: So when all the bidding is done, and it's time to select a winning bidder for a project, [00:16:48] Speaker 02: certification can influence whether you win. [00:16:52] Speaker 02: But it doesn't change the fact that every vendor from that step one vendor records, whether they're certified or not certified, whether they have one status or another, they're all compared to the job data when the job data comes in at the third limitation. [00:17:07] Speaker 02: So in other words, when they argue that vendors who are not certified are not considered, [00:17:16] Speaker 02: the search aren't run against them, that's just wrong as a factual matter. [00:17:20] Speaker 02: Because that certification just goes to preference of being chosen not to who's actually run in these comparisons. [00:17:25] Speaker 02: And one thing I can point you to for that in the appendix, and because there have been confusions around this, there's not a big record on it, but if you look at one of the documents that they point to, this is appendix page 7173, [00:17:48] Speaker 02: which is again, I mean, they're the main thing that they point, or at least one of the main things that they point to. [00:17:53] Speaker 02: What it describes is the certification process being a quote, preference. [00:17:56] Speaker 02: It doesn't say these people aren't searched. [00:17:58] Speaker 02: I'm sorry, 7174. [00:17:59] Speaker 01: I'm sorry, what was the page? [00:18:01] Speaker 02: 7174. [00:18:01] Speaker 02: 7174. [00:18:03] Speaker 02: In the, in the appendix. [00:18:05] Speaker 02: What it says, and the, sort of the second line down, is necessary we always give preference to certified vendors in PTM4. [00:18:15] Speaker 02: And then it explains a little bit down to different levels of vendor certification. [00:18:19] Speaker 02: Gold, ending, high quality, refund available. [00:18:23] Speaker 02: So what they're pointing to here, it just confirms my point, which is that this reflects whether someone has a preference for being considered. [00:18:31] Speaker 02: It doesn't have any bearing at all on who the searches are run against. [00:18:35] Speaker 02: The only evidence that goes directly to that, as the district court found, is the employee testimony that's spot on. [00:18:41] Speaker 02: Everyone in those vendor records from step one [00:18:44] Speaker 02: is then automatically compared to the job data when it comes in versus the third limitation. [00:18:49] Speaker 02: The second limitation just doesn't exist. [00:18:52] Speaker 02: Now, the other point the district court made about this is that even if the system was configured so that automatically you'd have vendor records, but you would automatically run a search every time against only some of the vendors, those with certain statuses, even if that was true, the district court pointed out that theory would still eviscerate the second claim limitation. [00:19:12] Speaker 02: Because the second claim limitation requires the system be capable of receiving an email from a buyer or on behalf of the buyer that specifies whoever that buyer wants as their vendor pool, whether it be all somewhere in between, and that's then stored in the system. [00:19:26] Speaker 02: And that step, that separate capability, that separate step wouldn't exist even as District Court pointed out, even if they were factually right about this point, which they're not. [00:19:34] Speaker 04: Let me take you back to your bold certification. [00:19:38] Speaker 04: As I understand your argument, correct me if I'm wrong. [00:19:41] Speaker 04: If, let's say gold certification was awarded because, speaking hypothetically, because the gold certified people promised to drop their price by 10%. [00:19:54] Speaker 04: You would simply factor that number into the formula and it would still be compared against those non-gold certified people and if they came in at a much lower price, they'd win the bid if that was the only factor involved. [00:20:09] Speaker 02: Exactly. [00:20:11] Speaker 02: And if you look back at 7174, where it says there are different levels of vendor certification, if you look at the bottom one, it's something about, this goes to pricing, which is confidential, but not all that different from something you just said. [00:20:24] Speaker 02: And the point there is that yes, the idea is that if you've got a preference, okay, that gives you a leg up of being chosen at the end of the day, but it doesn't mean that we don't consider other people. [00:20:35] Speaker 02: And it is exactly the way the system works. [00:20:38] Speaker 02: Instead, everyone who's in step one, the vendor records gets considered against all job data at step three. [00:20:47] Speaker 02: That second limitation just doesn't exist. [00:20:49] Speaker 04: Is there any evidence that at any point somebody who's not gold certified gets an award that is that they win a contract? [00:20:58] Speaker 02: In terms of the, I don't believe that there's a record at that level of detail about the actual interworking system at this point. [00:21:06] Speaker 04: because that would be disposed in right there. [00:21:10] Speaker 04: That would be what I'm saying. [00:21:11] Speaker 02: No, it would certainly provide that much more evidence on this point for us. [00:21:15] Speaker 02: But the point is that on summary judgment, we came forth with the right down point testimony, which the district court, and they had to come back with something other than sure conjecture and conclusory expert testimony, especially given that they haven't been able to spew to the district court's fact finding that their expert testimony wasn't reliable enough to consider. [00:21:31] Speaker 02: Now, on the buyer point then, [00:21:34] Speaker 02: The point, I don't have a whole lot to add to what the court obviously already understands about it, there are two dictionary definitions of buyer. [00:21:41] Speaker 02: The question is which applies more naturally in this context. [00:21:45] Speaker 02: And contextually, in terms of deciding which is more natural, we have three main points. [00:21:50] Speaker 02: The first is, as Chief Judge Crost pointed out, the claims refer to a buyer or someone acting on behalf of the buyer. [00:21:57] Speaker 02: Most naturally, that suggests that there's a difference between the two. [00:22:00] Speaker 02: Second, the claims here also refer to custom-made goods and services. [00:22:05] Speaker 02: And the specification in elaborating on that then makes a number of important statements, such as this show that the buyer is the person for whom the goods are being custom-made. [00:22:16] Speaker 02: For example, it refers to the buyer's attributes associated with a custom-made bidder service. [00:22:22] Speaker 02: That's, for example, on page A98, column four, 167 to A98, [00:22:29] Speaker 02: at the top of the next page. [00:22:32] Speaker 02: The point is, and there are a number of other references to a buyer's requirements, a buyer's procurement needs, all in the context of custom-made goods or services. [00:22:41] Speaker 02: At that point, I mean, it should be fairly clear that the requirement, the need, the attribute is of the person getting a custom-made service is not an intermediary. [00:22:50] Speaker 02: And the third point is simply, this is one that I think Judge Wallach made, which is the whole point of this invention. [00:22:57] Speaker 02: And in this respect, this is similar to this court's decision in the Lockwood against American Airlines case cited in our brief. [00:23:03] Speaker 02: The whole point of the invention is to try to reduce intermediaries. [00:23:06] Speaker 02: And therefore, since we're talking about reducing reliance intermediaries, it was very natural for these patents to be written from the perspective of the person who would be interacting, who was contemplated to be interacting directly with the system, which is to say the buyer, the person who's trying to acquire custom-made goods. [00:23:22] Speaker 02: The American Airlines case is similar because this court explained that the word was customer. [00:23:27] Speaker 02: And the court explained that the whole point of the invention was to cut out travel agents by allowing customers to interact directly with an automated system. [00:23:36] Speaker 02: So in that context, it didn't make any sense to read the word customer to include a travel agent, even if a travel agent could be said to be a customer in the sense that they were requiring a good or service. [00:23:46] Speaker 02: And finally, Chief Judge Prost had asked about 101. [00:23:50] Speaker 02: We did put it in our answer, but because it's a final judgment before Alice against CLS Bank, [00:23:56] Speaker 02: It has not yet been litigated in this case. [00:23:58] Speaker 02: If there were for any reason to be a remand, I mean, obviously the first thing we would do would be to file what we would view as an airtight motion under that, given that the claims here, it's an age-old business transaction, method of organizing human behavior on general purpose computers. [00:24:13] Speaker 02: The point where the spec actually says that it contemplates the use of a, quote, conventional general purpose computer with the, quote, internet. [00:24:20] Speaker 02: And if anything is patented and eligible under buy safe against Google, [00:24:25] Speaker 02: ultra-mercial against wild tangent, it would clearly be this. [00:24:30] Speaker 02: But we haven't litigated that yet because it's one of the case-wise final judgments. [00:24:35] Speaker 02: Thank you. [00:24:44] Speaker 03: Let me address a couple of points briefly. [00:24:47] Speaker 03: We don't dispute that the court must distinguish between the phrase on behalf of and the phrase buyer. [00:24:52] Speaker 03: Clearly the court must give meaning to both phrases. [00:24:55] Speaker 03: It's just simply unnecessary to redefine buyer as it's ordinarily used to give meaning to the phrase on behalf of. [00:25:02] Speaker 03: The argument really isn't any more complicated than that. [00:25:06] Speaker 03: It is true, though, that one must have a clear understanding of what buyer means. [00:25:10] Speaker 03: in order to have any kind of understanding of what the vendor pool requirement means. [00:25:14] Speaker 03: Our contention obviously is that buyer means one who makes a purchase and therefore the vendor pool requirement only requires an association to be made between the buyer and the vendors. [00:25:24] Speaker 03: The district court didn't hold that though. [00:25:26] Speaker 03: The district court found that there was no association here because a subset was not created. [00:25:32] Speaker 03: Those are the district court's words. [00:25:33] Speaker 03: Eight times the district court used the phrase subset. [00:25:36] Speaker 03: And I'd submit to the court that that is simply not a requirement of this vendor pool limitation. [00:25:42] Speaker 03: It is a limitation, no doubt about that. [00:25:44] Speaker 03: It is required as part of the claims. [00:25:46] Speaker 03: There is an association that must be made, some real association between a buyer [00:25:51] Speaker 03: in a vendor, that's the very heart and purpose of the patent, but it does not require, in any sense of the word, that the vendor pool that is created be less than the entire database. [00:26:00] Speaker 03: If a buyer chooses, if a buyer vets and associates themselves with the entire database, that's perfectly adequate and fine. [00:26:08] Speaker 03: That was the district court's finding, and that is at the heart of the error of what the district court found. [00:26:15] Speaker 03: Going back to the evidence cited by Kelly, the district court found [00:26:21] Speaker 03: that Eland only relied on the Ipsy-Dixit of its expert. [00:26:26] Speaker 03: That is, that our expert's report was unsupported. [00:26:29] Speaker 03: But on the face of the actual report, it does cite to Interworking's own documents and statements. [00:26:36] Speaker 03: And to the very document that is heavily referenced, 7174, it notes, in addition to the certification requirement, that there are vendors who are not active in the database, not active. [00:26:48] Speaker 03: Those are not the witnesses' words. [00:26:49] Speaker 03: Those are interworking's own documents' words. [00:26:52] Speaker 03: We are entitled, in summary judgment, to all inferences in our favor that a reasonable fact-finder could find. [00:26:58] Speaker 03: We're not required to marshal all of our evidence and try the case on the papers. [00:27:03] Speaker 03: But the district court's error was that it simply disregarded the evidence that we cited and the expert's conclusions based on those citations. [00:27:13] Speaker 03: Weighing the evidence for credibility determination isn't a province of the court [00:27:17] Speaker 03: in summary judgment. [00:27:18] Speaker 03: That's the sole province of the jury. [00:27:20] Speaker 03: And that is, of course, the second major point of error. [00:27:24] Speaker 03: Our primary contention was always that a buyer means a purchaser. [00:27:28] Speaker 03: Even in a working, in this particular context, could be considered an ultimate purchaser. [00:27:33] Speaker 03: They do quite literally buy the print, as that word is used in the English language. [00:27:37] Speaker 03: They are the oligarch of the vendors. [00:27:40] Speaker 03: They are the only legal oligarch. [00:27:41] Speaker 03: That's what they tell their shareholders and the Securities Exchange Commission. [00:27:45] Speaker 03: They are an actual buyer, [00:27:46] Speaker 03: They are an ultimate buyer. [00:27:48] Speaker 03: It certainly is with respect to the contract that's being consummated in their system. [00:27:57] Speaker 03: Those are the only arguments that I have in response to those that were addressed by inner workings. [00:28:02] Speaker 03: But if the court has any other questions, I'm happy to answer them. [00:28:05] Speaker 01: I do have a question, and I wanted to wait so I didn't use up your time regarding IW with the question about circuit. [00:28:12] Speaker 01: But I do have a question about circuit. [00:28:15] Speaker 01: Yes. [00:28:16] Speaker 01: Let's assume that the court's claim construction is correct with respect to the vendor capability data limitation. [00:28:27] Speaker 01: You have an argument at the end of your brief that nonetheless, there's still at least a sufficient issue of material fact that you should have had a trial on that. [00:28:39] Speaker 01: Correct. [00:28:40] Speaker 01: Could you flesh that out for me? [00:28:42] Speaker 01: Because I'm not sure what exactly you're relying on. [00:28:46] Speaker 01: in the evidence to support that contention. [00:28:50] Speaker 03: Sure. [00:28:51] Speaker 01: The evidence as to circuit's capabilities. [00:28:54] Speaker 03: I understand. [00:28:55] Speaker 03: Let me address two points with respect to that, Your Honor. [00:28:59] Speaker 03: The first is that if the court accepts the district court's construction, one must have an understanding that the court didn't really expound upon what the phrase good sold actually meant. [00:29:09] Speaker 03: Now, the court found in a belief in the entry of its [00:29:13] Speaker 01: Let's assume for present purposes that it includes not only standardized goods, but custom goods as well. [00:29:20] Speaker 03: If the phrase goods sold refers to, well, I'm not exactly sure what the court means by custom goods. [00:29:25] Speaker 03: The argument that we're making is that there is a distinction between goods sold, that is an actual thing that is ready to be sold, and a category of products that one has the capability of producing. [00:29:38] Speaker 03: If, for example, I order envelopes on Amazon, Amazon is selling me a good [00:29:43] Speaker 03: sell me some envelopes. [00:29:44] Speaker 03: If I am contracting with a vendor to make my custom Christmas cards, I need to know that the vendor has the capability of making the cards in the envelopes. [00:29:53] Speaker 03: That's an essential requirement to know that the vendor can actually do what I'm asking them to do. [00:29:59] Speaker 03: It is not a good soul to not find those things on their own. [00:30:03] Speaker 03: It is a capability of the vendor to make the good. [00:30:07] Speaker 01: What are the categories of [00:30:09] Speaker 01: circuits performance, the evidence of the categories of circuits performance on which you rely. [00:30:17] Speaker 03: If I could refer the court to our brief. [00:30:24] Speaker 04: The opening brief or the report? [00:30:25] Speaker 03: The opening brief, Your Honor. [00:30:29] Speaker 04: While you're looking under the UCC, if I buy Christmas cards, it's a contract for services rather than a contract for goods. [00:30:37] Speaker 03: No, under the UCC, if you're buying Christmas cards that are pre-made, it would be a contract for goods sold. [00:30:47] Speaker 04: I want custom Christmas cards, still a contract for goods. [00:30:51] Speaker 03: Well, you know, under the interpretation of the UCC, that may be the case. [00:30:55] Speaker 03: I'm not sure exactly how that has bearing here on the analysis of the claims or the reported disclaimer that was made in the prosecution. [00:31:03] Speaker 03: But to answer your question, Judge Bryson, [00:31:06] Speaker 03: If you look on page 57 of our brief, it has citations comparing the product categories that are identified in the preferred embodiment of a patent with the circuit supplier types and supportive products that are referenced. [00:31:21] Speaker 01: Right. [00:31:23] Speaker 01: You rely in the district court, as I read your papers in the district court, on the circuit support products, but not on supplier types. [00:31:32] Speaker 03: Well, it was both. [00:31:34] Speaker 01: Well, let's be sure. [00:31:38] Speaker 01: I went back and I read your response to summary judgment and also your motion to vacate the judgment. [00:31:46] Speaker 01: And I didn't see any reference to the supplier types category. [00:31:49] Speaker 01: I saw only reference to support products. [00:31:53] Speaker 03: That's not my recollection. [00:31:55] Speaker 01: Are you sure that you made that argument? [00:31:57] Speaker 03: I take, Your Honor, at your word if that's the case. [00:31:59] Speaker 03: That's not my recollection. [00:32:00] Speaker 01: Well, I could be mistaken. [00:32:01] Speaker 01: I could have missed it somewhere. [00:32:02] Speaker 01: Or there may be some other document. [00:32:04] Speaker 01: But I saw nothing that referenced supplier types. [00:32:11] Speaker 03: That may be the case, Your Honor. [00:32:13] Speaker 03: Again, that's not my recollection. [00:32:14] Speaker 03: But I cannot cite to the court at this moment where in that briefing that would occur. [00:32:22] Speaker 03: But with respect to supported products, those match up almost identically in some instances with the product categories that are listed in the preferred environment. [00:32:32] Speaker 03: So therefore, our contention is that even if the court accepts that there was a disclaim on prosecution history and that goods sold was eliminated from the products from the vendor capability category, nevertheless, there is evidence in the record to support the conclusion that Circuit does in fact have vendor capability data in its system. [00:32:56] Speaker 00: Thank you. [00:32:57] Speaker 00: We thank both companies.