[00:00:00] Speaker 05: Be seated please. [00:00:14] Speaker 05: Good morning. [00:00:17] Speaker 05: We have only two argued cases this morning. [00:00:21] Speaker 05: The other two have been submitted on the brief. [00:00:24] Speaker 05: The two argued cases are both patent cases but some different [00:00:29] Speaker 05: Forums, the first case for argument is Media Rights Technologies versus Capital One Financial Court, case number 141218. [00:00:41] Speaker 05: Mr. Pickard, you want to reserve three minutes for rebuttal? [00:00:44] Speaker 00: Yes, Your Honor. [00:00:45] Speaker 05: Okay. [00:00:46] Speaker 05: You may proceed. [00:00:53] Speaker 00: May it please the Court, I'd like to focus my time today on three reversible errors that the trial court committed. [00:00:59] Speaker 00: First, the trial court erred in finding the 033 patents compliance mechanism with a means plus function limitation. [00:01:09] Speaker 00: Second, even if the compliance mechanism was a means plus function limitation, the court still erred in finding the specification failed to disclose corresponding structure for the compliance mechanism's function. [00:01:25] Speaker 00: And finally, the trial court heard in finding that the custom media device of the 033 patent was indefinite. [00:01:34] Speaker 00: Turning to the compliance mechanism, there's no dispute in this case that the compliance mechanism as recited is not in the means plus function form and therefore enjoys a strong presumption that it is not a means plus function limitation. [00:01:49] Speaker 00: To overcome that limitation, it must be shown that the [00:01:53] Speaker 00: claim read in light of the specification does not recite structure. [00:01:58] Speaker 00: The trial court's basic error here was that it did not consult the specification when deciding that the compliance mechanism failed to recite structure. [00:02:07] Speaker 00: In fact, the trial court's memorandum of opinion makes that clear. [00:02:10] Speaker 00: The judge concluded that the claims themselves do not recite structure. [00:02:14] Speaker 00: Capital. [00:02:15] Speaker 05: What's the distinction between the amount of structure that needs to be clearly disclosed in the specification to [00:02:23] Speaker 05: get past the application of 112-6 and the amount of structure that's necessary, assuming you're looking at a 112-6? [00:02:32] Speaker 00: Sure, I think that's a very good question. [00:02:35] Speaker 00: You know me ask good questions. [00:02:39] Speaker 00: I agree. [00:02:40] Speaker 00: So on the first question, the analysis focuses on, does the claim term connote structure based on what's in the specification? [00:02:50] Speaker 00: The second part of the analysis [00:02:52] Speaker 00: If you find it's a 112-6 term because the specification is essentially devoid of structure, you look to the functions of that claim term and then decide where in the specification are the corresponding structures linked to those functions, if you will. [00:03:09] Speaker 05: Yeah, I guess that's my point. [00:03:11] Speaker 05: If you're saying that we have to find that the specification is devoid of structure, [00:03:20] Speaker 05: in order for 112.6 to apply, then what structures are we looking for if we assume 112.6 to apply? [00:03:25] Speaker 00: So I think if we're looking to the structure of the patent, we're not limited to the structures that are correlated to the claimed functions of the compliance mechanism. [00:03:33] Speaker 00: And in our brief, we've pointed to four categories of structure that the specification describes the compliance mechanism. [00:03:43] Speaker 05: Well, let's talk about that, because it seems like the structure that you're pointing to tends to be [00:03:50] Speaker 05: more related to the function and to what it's connected to rather than what it actually does. [00:03:58] Speaker 00: Your Honor, some of the structure we point to does relate to the functions of the compliance mechanism. [00:04:04] Speaker 00: This court in the Inventio case also pointed to the functions in that case that was the modernizing device. [00:04:10] Speaker 00: It looked at some of the functions of the modernizing device to decide their structure. [00:04:14] Speaker 00: For example, in the Inventio case, the modernizing device [00:04:19] Speaker 00: would run a Qt computer program product. [00:04:21] Speaker 00: And the court there said, at least in part, that connotes structure because that computer program product invokes an algorithm and the technology there was how do you optimize elevator calls. [00:04:31] Speaker 00: So you can look to functions, at least according to this court's cases. [00:04:35] Speaker 00: And indeed, once you get to, if you find it was a means plus function limitation, this court has said things like algorithms can be structured. [00:04:43] Speaker 00: So when you're dealing with software, we submit that things like functions can be structured. [00:04:47] Speaker 00: We have more than that, however, [00:04:49] Speaker 00: Like Inventio, calling out what the device or mechanism is coupled to is one indicia of structure. [00:04:58] Speaker 00: Our patent does that. [00:05:00] Speaker 00: Claim 1 specifies that the compliance mechanism is coupled to the client system as well as the custom media device. [00:05:10] Speaker 04: structure that is claimed in undeniable means plus function terms is nearly always coupled to something else. [00:05:21] Speaker 04: The fact that, full stop, that doesn't even begin to tell you without further identification of what the coupling is, what the structure is. [00:05:39] Speaker 00: All we had was a simple coupling. [00:05:40] Speaker 00: That would not be enough. [00:05:41] Speaker 00: I do think, based on what we have in the Inventio case, that it is some indicia of disclosure of structure for the compliance mechanism. [00:05:50] Speaker 00: And if you look to the rest of the description, the coupling is specifically called out and described, for instance, in the figure 5B and 5C. [00:05:58] Speaker 00: The coupling there is shown how that actually works. [00:06:01] Speaker 00: The compliance mechanism can open and close software switches in the custom media device. [00:06:07] Speaker 00: There's another coupling to the playback application and those embodiments. [00:06:11] Speaker 00: And the patent describes that what's going on there is that the system is communicating usage restrictions for the media to the compliance mechanism. [00:06:21] Speaker 04: And then also, figure three of the patent tells you... The things that you just described, I think even in the language you just described them, do nothing but say what function the compliance mechanism is performing [00:06:36] Speaker 04: with respect to the things it's coupled to. [00:06:40] Speaker 04: That doesn't, it seems to me at least, yet begin to suggest what structure is carrying out those functions. [00:06:49] Speaker 00: I submit that in a software patent like this, consistent with the Inventio holding, calling out things like the processes that the term in question performs, that can be indicative of structure, describing how the compliance mechanism interacts [00:07:05] Speaker 00: with the components to which it's connected. [00:07:07] Speaker 00: That also can be a description of structure. [00:07:10] Speaker 00: And we also have Figure 3, which calls out or describes the components that can make up the compliance. [00:07:18] Speaker 05: Figure 3, doesn't a patent describe Figure 3 itself as a description of function? [00:07:25] Speaker 00: Some of those, yes. [00:07:26] Speaker 00: Yes, but I think in the software world, we submit that you're always going to have some functional [00:07:36] Speaker 00: Function is going to be part of what happens in software because they are, in their essence, instructions. [00:07:41] Speaker 00: But when you describe the compliance mechanism with these different components, because it's software, that would connote to a skilled artisan structure. [00:07:49] Speaker 03: Are you going to talk about the custom media device limitation also? [00:07:55] Speaker 00: Yes, your honor. [00:07:55] Speaker 03: Because I assume that if we agree with the trial judge on either of those propositions, that either the [00:08:04] Speaker 03: Custom media device is indefinite, or the compliance mechanism, however read, is indefinite. [00:08:11] Speaker 00: Either one, you lose. [00:08:13] Speaker 00: Is that correct? [00:08:14] Speaker 00: That's right. [00:08:15] Speaker 00: Each of those claim terms appear in each of the claims. [00:08:18] Speaker 00: So if either is indefinite, the entire path. [00:08:20] Speaker 03: So speak for a few minutes about the custom media device issue, because it's not that different, is it? [00:08:27] Speaker 00: I do think it is there. [00:08:28] Speaker 00: We do not have the means plus function issue with the custom media device. [00:08:32] Speaker 03: We could come back to that, but go ahead. [00:08:36] Speaker 03: He treated that as a straightforward utility claim, but element in the patent. [00:08:44] Speaker 00: Correct. [00:08:45] Speaker 00: We submit that there are three analytical errors in the judge's decision that the custom media device was indefinite. [00:08:55] Speaker 00: First, the court expressed some [00:08:57] Speaker 00: confusion whether the claim term was software or hardware. [00:09:03] Speaker 03: I find nothing in the patent that tells me one way or the other on that issue. [00:09:08] Speaker 03: Do you find something? [00:09:10] Speaker 00: Yes, Your Honor. [00:09:10] Speaker 00: I think if you look to column five of the patent, lines 18 to 23, the language there reads, the client's computer system, EG210, can be configured to utilize a custom [00:09:25] Speaker 00: media device application, e.g. [00:09:28] Speaker 00: custom media device 310. [00:09:30] Speaker 00: And I think that's significant because... I'm sorry, what are you reading from, please? [00:09:35] Speaker 00: That is column five, lines 18 to 23, I believe. [00:09:39] Speaker 00: The language there, it describes a custom media device application, which I think... Wait a minute, you're reading... I'm having trouble finding you. [00:09:48] Speaker 03: I don't think you've got the... Yeah, I can't find what... I'll get an update, it looks like you're not. [00:09:53] Speaker 00: What column are you in? [00:09:55] Speaker 00: I have column five down in my notes here. [00:09:59] Speaker 00: This is in our brief, and the quote that my colleague will give me will give you a little column in line. [00:10:05] Speaker 00: I apologize. [00:10:07] Speaker 00: It calls out custom media device application. [00:10:09] Speaker 00: I think we can agree that that's software. [00:10:11] Speaker 00: And as an example of the kind of software that can be... [00:10:17] Speaker 00: Read your quote again. [00:10:19] Speaker 00: Right, the client system can be configured to utilize a custom media device application. [00:10:24] Speaker 03: Which means it could be software, but it doesn't need to be. [00:10:28] Speaker 00: That's true. [00:10:29] Speaker 00: It may be configured without it, but when it calls out the custom media device, the actual claim term, it gives that as an example of a custom media device application. [00:10:37] Speaker 03: Application, which is software. [00:10:39] Speaker 00: Yes. [00:10:39] Speaker 03: But it says can be, which means it doesn't have to be, right? [00:10:45] Speaker 00: The can be modifies what the client computer system can be. [00:10:48] Speaker 00: So in this example, the client computer system can be configured to have a custom media device application. [00:10:55] Speaker 00: And among the things that can be an application are the custom media device, is what that says. [00:11:00] Speaker 00: But be that as it may, the court and Capital One haven't explained why that's material here. [00:11:05] Speaker 00: At the end of the day, when you have a software element, there is always going to be underlying hardware. [00:11:10] Speaker 00: And the mix between the two is an implementation detail. [00:11:16] Speaker 05: I guess I'm confused. [00:11:18] Speaker 05: What does that mean in terms of what the phrase means? [00:11:26] Speaker 00: Yeah, so the claims are drawn through the software. [00:11:28] Speaker 05: There's hardware, of course. [00:11:29] Speaker 05: You've got a computer. [00:11:31] Speaker 05: So you're not just claiming a computer, though, right? [00:11:34] Speaker 00: We're not just claiming a computer here, Your Honor. [00:11:37] Speaker 00: The claims are directed or claimed at the software level. [00:11:39] Speaker 00: But inherently, there's always going to be an underlying hardware that runs that software. [00:11:45] Speaker 00: It has not been shown here why this confusion, if there were any, which we don't believe there is, would make the claim unreasonably uncertain. [00:11:56] Speaker 05: Well, now I'm uncertain. [00:11:57] Speaker 05: So are you saying that it is software or it is hardware? [00:12:04] Speaker 00: It is software, Your Honor. [00:12:05] Speaker 05: OK, so if it is software, then what about that software makes it either a device or custom? [00:12:14] Speaker 00: I'll pick up the custom. [00:12:16] Speaker 00: So I think starting with what was proposed as the construction of this term by media rights below, it was proposed that custom media device was an application or driver specific to the particular media content being presented. [00:12:33] Speaker 00: And if you put that in the context of the terms, one sees that there's several ways in which the custom media device is customized. [00:12:43] Speaker 00: It's coupled to the compliance mechanism. [00:12:47] Speaker 00: That becomes important later in the claim when you see that the function of the custom media device is to selectively restrict media output. [00:12:54] Speaker 00: That's really the essence of this invention. [00:12:57] Speaker 03: What is the custom media device? [00:13:00] Speaker 00: It is a software app. [00:13:01] Speaker 00: What does it look like? [00:13:03] Speaker 00: Well, it's software. [00:13:04] Speaker 00: It doesn't look like any software. [00:13:05] Speaker 00: It's not a device. [00:13:06] Speaker 00: It is software. [00:13:07] Speaker 03: That's right. [00:13:08] Speaker 03: So the label is wrong, or your definition is wrong. [00:13:13] Speaker 00: I don't concede that it's an either or here, your honor. [00:13:16] Speaker 00: I think our definition is correct, and I think that device has enough flexibility to connote hardware or software. [00:13:23] Speaker 00: In this case, we've described it and claimed it as software. [00:13:28] Speaker 00: I see that I'm into my rebuttal time. [00:13:30] Speaker 04: I'm happy to answer more questions. [00:13:31] Speaker 04: Can I ask you just one question, and this is back to the compliance mechanism. [00:13:35] Speaker 04: Assume for purposes of this question that this is a 112F claim. [00:13:40] Speaker 04: What in the spec gives a structure, and I will include an algorithm here, for the diverting pathways function. [00:13:49] Speaker 04: Forget the other two or three functions. [00:13:53] Speaker 04: I don't get it out of that little program at the bottom of column 11, top of column 12. [00:14:01] Speaker 00: Your Honor, I think you talked about the source code that's at column 11. [00:14:08] Speaker 00: The patent clearly calls out that that source code can perform that function. [00:14:12] Speaker 04: I know you say that. [00:14:16] Speaker 04: I don't get it from the source code. [00:14:19] Speaker 04: Isn't the evidence, the state of the evidence on this that the other side had an expert said all that thing that source code does is spit out an error message. [00:14:32] Speaker 04: It doesn't actually divert the pathway and you don't have contrary evidence. [00:14:38] Speaker 00: I'd like to address that. [00:14:39] Speaker 00: I do think this is an area where the court needs expert witness testimony to determine what that source code discloses at an algorithmic level. [00:14:48] Speaker 00: The evidence that I believe Your Honor is referring to is the opinion of Dr. Chatterjee where he says that essentially that the source code wouldn't compile and that it invokes the starting point of the [00:14:59] Speaker 04: And that, I think he also says, and all it does is say you have an error if something doesn't work. [00:15:08] Speaker 04: It doesn't actually produce a change in pathways. [00:15:13] Speaker 00: I think that's not a fair reading of Chatterjee, if I may submit. [00:15:16] Speaker 00: He says that it doesn't teach particular function. [00:15:18] Speaker 00: He doesn't wrestle with the issue. [00:15:20] Speaker 00: Is there an algorithm there? [00:15:21] Speaker 00: Part of that stems from the problem that [00:15:24] Speaker 00: When Mr. Chatterjee or Dr. Chatterjee was giving that opinion, he was giving it in the context of the custom media device, not the compliance mechanism. [00:15:32] Speaker 00: Moreover, the trial court did not consider or credit that evidence when it decided that specification lacked structure corresponding to that function. [00:15:42] Speaker 00: So that doesn't enjoy a clear error review under TEVA. [00:15:46] Speaker 00: The trial court simply didn't consider or credit that testimony. [00:15:51] Speaker 00: Thank you. [00:15:51] Speaker 05: All right, thank you. [00:15:52] Speaker 05: We'll give you your three minutes back and we'll [00:15:54] Speaker 05: Give your friend on the other side, Mr. Angle, is that correct? [00:15:58] Speaker 05: Yes, ma'am. [00:15:58] Speaker 05: Another three minutes. [00:16:00] Speaker 01: Thank you, Your Honor. [00:16:01] Speaker 01: Good morning. [00:16:02] Speaker 01: Robert Angle for CAFLA 1. [00:16:03] Speaker 05: You don't have to use the extra three minutes. [00:16:05] Speaker 01: Your Honor, I'll use as much time as you would like, but no more than that. [00:16:09] Speaker 01: Your Honor, the district court decision below should be affirmed, because the patent, the 033 patent here, is an impenetrable matter, as you probably determined by reviewing it, that neither meets the patent eligibility requirements under 35 USC section 101 [00:16:24] Speaker 01: nor the definiteness requirements under 35 U.S.C. [00:16:27] Speaker 01: section 112-2. [00:16:27] Speaker 04: The patent is... You want us to jump from the morass of indefiniteness into the clean pool of 101 law? [00:16:36] Speaker 01: Well, Your Honor, this patent does have a number of problems. [00:16:40] Speaker 01: If you look at the claim language, one of the reasons... What did the trial court say about your 101 argument? [00:16:45] Speaker 01: The trial court did not reach it, Your Honor. [00:16:47] Speaker 03: Neither can we. [00:16:48] Speaker 01: Your Honor, I respectfully disagree. [00:16:51] Speaker 01: The court can, in fact, reach it. [00:16:53] Speaker 01: As this court held in Glaxo v. Torfarm, a 1998 case, which I don't believe meditated into our briefs, but is at 153 F. [00:17:00] Speaker 01: 3rd, 1366, Capital One has the right to defend the judgment below, and this court has the right to affirm the judgment below on any grounds supported by the law or the record. [00:17:11] Speaker 01: hear the law and the records both support reaching that issue. [00:17:14] Speaker 05: But the judgment below was that the patent was invalid under 112-2, right? [00:17:20] Speaker 05: Yes, Your Honor. [00:17:21] Speaker 05: Not under 101. [00:17:22] Speaker 03: You would like us to remand it to the trial court to do a 101 analysis? [00:17:27] Speaker 03: No, Your Honor. [00:17:28] Speaker 03: I'd like you to... You want us to do an initial 101 analysis without ever having presented it to the trial court. [00:17:35] Speaker 03: Can you be serious? [00:17:36] Speaker 01: Your Honor, the [00:17:38] Speaker 01: decision of this court in Tempo Lighting versus Tivoli of just last year, which was 742 F3 973, prevented us from filing a cross appeal on this issue. [00:17:48] Speaker 01: The court held that we can't expand the relief granted below, but you can, as an additional matter, reach that issue under the Glaxo, which is a Torfarm case. [00:17:57] Speaker 01: But I understand if you don't want to reach it, so I will move on. [00:18:01] Speaker 01: Picking up on where my friend left off, talking about the custom media device. [00:18:06] Speaker 01: Yeah, the custom media device. [00:18:07] Speaker 05: Well, first, let's go to a legal issue. [00:18:11] Speaker 05: Yes, ma'am. [00:18:13] Speaker 05: What is your take on Inventio? [00:18:16] Speaker 05: What's the distinction from this case to Inventio? [00:18:22] Speaker 01: In the Inventio case, well, I have to remind myself of Inventio. [00:18:29] Speaker 05: OK. [00:18:29] Speaker 05: Inventio is the case about 112-6. [00:18:31] Speaker 05: Modernizing device that we can control. [00:18:34] Speaker 01: Yes, exactly. [00:18:35] Speaker 01: Yes, Your Honor. [00:18:35] Speaker 01: Yes, Your Honor. [00:18:36] Speaker 01: Well, Your Honor, I asked a very good question of my friend earlier today, which is where is that line drawn between the amount of specificity and specification needed to find, overcome the presumption that 112.6 doesn't apply, but nevertheless, later you come back to that in the second set to determine whether there's sufficient structures to support that the claim term. [00:18:59] Speaker 01: doesn't fail to meet the indefinite challenge. [00:19:05] Speaker 01: Here, I think it's clear, and I think the district court should be affirmed, that 112.6 did apply. [00:19:10] Speaker 01: As this court held in Apple versus Motorola, the presumption can be overcome if a claim merely recites a function without reciting structure to perform that function. [00:19:20] Speaker 01: That's precisely what we have here. [00:19:22] Speaker 01: The compliance mechanism, as set forth in the claims, really just performs several functions. [00:19:27] Speaker 01: Controlling, diverting, and monitoring of data output pathways. [00:19:32] Speaker 03: Help me with one thing that I'm a little unclear about. [00:19:35] Speaker 03: Why does it matter whether the trial court found compliance mechanism a 112-6? [00:19:44] Speaker 03: Wouldn't the problem be exactly the same if the trial court had simply said compliance mechanism is indefinite because it does not contain and there's nothing in the [00:19:57] Speaker 03: written description that explains what those words mean? [00:20:01] Speaker 01: Yes, Your Honor. [00:20:02] Speaker 01: I agree with that. [00:20:02] Speaker 01: And frankly, the issue of 112.6 came up in the context of us struggling, having reviewed the patent many, many times, to make sense of what this term meant and reacting to MRT's proposed construction. [00:20:16] Speaker 05: MRT... Well, in fact, though, your [00:20:19] Speaker 05: your argument's much more difficult if it's not a 112-6, isn't it? [00:20:22] Speaker 05: I mean, they do point to at least arguably some structures that would perform some of the functions, but if you're under 112-6, they have to have a structure that would perform every one of the disclosed functions. [00:20:35] Speaker 01: Well, Your Honor, that's a good question, and I believe that the analysis would really be the same. [00:20:41] Speaker 01: MRT has taken its own difficult positions in this case, trying to expand the scope of the patent to reach, I mean, if you look at the patent, it's directed at the relatively narrow problem of Napster, the easy copying and proliferation of copyrighted audio and video files, what they wanted to read on virtually every way in which Capital One's websites deliver information or data to its customers. [00:21:06] Speaker 01: And to do that, they have to read compliance mechanisms broadly. [00:21:09] Speaker 01: And so not only have they construed it, [00:21:11] Speaker 01: purely functional as actions or steps on a computer to enforce data restriction, they have distinguished it from what disclosure there is in the specification. [00:21:23] Speaker 01: The specification talks about a copyright compliance mechanism, never discusses a compliance mechanism as being distinct from that. [00:21:31] Speaker 01: And yet MRT contends that they are distinct, that the compliance mechanism is a category of things that perform the functions as claimed. [00:21:41] Speaker 01: of which the copyright compliance mechanism is merely an example. [00:21:45] Speaker 01: And if you take that, take them at their word for that, that means to understand what a compliance mechanism is, first you have to understand what the copyright compliance mechanism is. [00:21:56] Speaker 01: And you're right, there is some disclosure in the specification about certain components that could be part of the copyright compliance mechanism. [00:22:05] Speaker 01: But nowhere does the specification tell you [00:22:08] Speaker 01: which of those components must be part of the copyright compliance mechanism. [00:22:13] Speaker 01: And in fact, it goes so far as to suggest that there are unnamed components that could be part of the copyright compliance mechanism. [00:22:20] Speaker 01: Thus, it's essentially an open set. [00:22:23] Speaker 01: It's not unlike the determination Discord made in the Ibermeet versus Mercedes-Benz case. [00:22:29] Speaker 01: Now, admittedly, there we were talking about an algorithm and specification disclosed. [00:22:35] Speaker 01: a number of factors that went into that algorithm for an alarm limit on sleepiness. [00:22:40] Speaker 04: Just not the algorithm. [00:22:42] Speaker 04: I'm sorry? [00:22:42] Speaker 04: Just not the algorithm. [00:22:44] Speaker 01: Correct, Your Honor. [00:22:45] Speaker 01: They, Iremies in that case, took the position that, well, first of all, the specification did not provide any concrete examples of how these factors work together to create, to reach the alarm limit. [00:22:56] Speaker 01: And Iremies took the position that it could be any combination of those factors that were set forth in the specification, leaving it open-ended. [00:23:05] Speaker 01: This court took Ibermeath and its expert at his word on that and said it was actually a binding admission and pointed out that they were trying to stretch the claim language to meet the Mercedes-Benz product at issue. [00:23:16] Speaker 01: Likewise here, MRT has taken the broadest possible position as to what the compliance mechanism is and has even distinguished it from the only disclosure we have, which is the copyright compliance mechanism set forth in the specification. [00:23:31] Speaker 04: I don't remember. [00:23:33] Speaker 04: Compliance mechanism without the word copyright in front of it. [00:23:37] Speaker 04: Does the spec use that expression? [00:23:39] Speaker 01: No, Your Honor. [00:23:40] Speaker 01: It does not. [00:23:41] Speaker 01: Nowhere in the written description. [00:23:43] Speaker 01: In the summary of the invention, there's a repeat. [00:23:45] Speaker 01: Essentially, it's a sentence repeat of what's in the claims. [00:23:48] Speaker 01: It shows up there, but there's no discussion of them. [00:23:51] Speaker 01: no discussion of them together so that you can figure out how the copyright compliance mechanism is different from the compliance mechanism. [00:23:58] Speaker 05: But isn't what you're arguing more a question of claim construction than it is of indefiniteness? [00:24:05] Speaker 05: In other words, if it should be limited to copyright compliance mechanism, then that doesn't mean that it's not definite. [00:24:15] Speaker 05: If you can determine what copyright compliance mechanism is, right? [00:24:21] Speaker 05: In other words, it's a two-step process. [00:24:24] Speaker 05: If the only compliance mechanism disclosed is a copyright compliance mechanism, and the copyright compliance mechanism is definite enough or has enough structure to determine what that is, that's a different issue. [00:24:38] Speaker 05: That means that their claim construction is too broad, but the claim itself is not indefinite. [00:24:43] Speaker 01: Well, Your Honor, it's walking down exactly the path that Capital One walked down before the district court and trying to make sense [00:24:50] Speaker 01: of this term. [00:24:51] Speaker 01: It's the heart of the claimed invention. [00:24:53] Speaker 01: It's the compliance mechanism. [00:24:54] Speaker 01: It is in the claims what does the work in theory. [00:24:58] Speaker 03: Your argument is that the trial judge is entitled to look at the exact words of the claim without rewriting them in light of the written description. [00:25:09] Speaker 01: Well, the claim language certainly needs to be read in light of the specification, but here the specification doesn't [00:25:15] Speaker 01: illuminate what the compliance mechanism is. [00:25:18] Speaker 01: To the extent there's description, it's of the copyright compliance mechanism, which MRT contends is different than the compliance mechanism. [00:25:26] Speaker 01: And as you noted in your questions to my friend, largely the description is in a functional nature. [00:25:32] Speaker 03: But Judge O'Malley's point is if we all read compliance mechanism as meaning copyright compliance mechanism, because that's the only way it's used in the written description, [00:25:43] Speaker 03: Then wouldn't the question be whether copyright compliance mechanism is or is not indefinite on its own terms? [00:25:52] Speaker 01: Your Honor, that is an interesting question that has not been raised because MRT has disclaimed that position. [00:25:59] Speaker 01: They have affirmatively throughout the district court and here said that the compliance mechanism is not the copyright compliance mechanism. [00:26:06] Speaker 01: It is something [00:26:07] Speaker 01: broader than the copyright compliance mechanism. [00:26:09] Speaker 01: And they have to be held to that binding admission. [00:26:13] Speaker 03: So you're saying we can't get there through claim construction. [00:26:17] Speaker 01: I don't believe so, your honor. [00:26:20] Speaker 01: Though it is a de novo review, so perhaps you can get there. [00:26:25] Speaker 01: But I don't believe the issue is properly before you, because MRT has affirmatively disclaimed that position throughout. [00:26:33] Speaker 03: indicated to you at the beginning, I'm not sure that we have free license to rewrite the arguments that the parties bring to us. [00:26:42] Speaker 03: I mean, it's not our case. [00:26:43] Speaker 03: It's your case. [00:26:44] Speaker 01: Right, right. [00:26:45] Speaker 05: I agree with that. [00:26:46] Speaker 05: So let's just go down this hypothetical road for a second. [00:26:50] Speaker 05: If we were looking at copyright compliance mechanisms, 300 as disclosed, what about that is indefinite? [00:27:00] Speaker 05: What about that would be indefinite? [00:27:02] Speaker 01: It's indefinite, your honor, because, first of all, it is described, there are a number of components described with respect to the copyright compliance mechanism in the specification, undoubtedly, and you can point to Figure 3, for example, and it identifies various components. [00:27:18] Speaker 01: And that's the- Various functions, Figure 3. [00:27:20] Speaker 01: Exactly. [00:27:21] Speaker 01: I mean, we're talking about, as MRT contends, software. [00:27:25] Speaker 01: We're talking about various types of software, and the way it's described in the specification is, [00:27:31] Speaker 01: all kinds of different pieces of software, codecs, skins, other various pieces of software could be part of the copyright compliance mechanism. [00:27:44] Speaker 01: But the specification is clear to state that it could be other combinations, it could be any combination of factors without identifying any specific factor for function or software that must be [00:28:00] Speaker 01: part of the copyright compliance mechanism. [00:28:03] Speaker 01: Thus, it's an open set. [00:28:05] Speaker 01: It says that certain things could be it, but will provide no definitive boundaries on what that term means, either copyright compliance mechanism. [00:28:16] Speaker 03: Are you going to talk about the custom media device issue? [00:28:19] Speaker 01: Absolutely, Your Honor. [00:28:21] Speaker 03: That's actually an easier issue for you, isn't it? [00:28:24] Speaker 01: I agree that it is the clearer issue. [00:28:27] Speaker 01: and I would say easier. [00:28:29] Speaker 01: Under section 112.2, of course, the purpose of the definite requirement is to provide public notice of the scope of the claimed invention. [00:28:39] Speaker 01: Here, the drafter, of course, as this court has said a number of instances, is in the best position to avoid ambiguity with respect to the claimed scope. [00:28:48] Speaker 01: Here the drafter chose a specific term, custom media device. [00:28:52] Speaker 01: That, as MRT acknowledges, has no plain and ordinary meaning [00:28:55] Speaker 01: person's skill in the art. [00:28:57] Speaker 01: And in fact, by using the term custom, it suggests that there's something customized about, something unique about it that sets it apart from the standard media device. [00:29:06] Speaker 05: And yet... Well, I mean, their response to that is that the custom part is that it will respond so that you have an application for video, you have an application for audio, and that that's what's customized about it. [00:29:22] Speaker 01: Right. [00:29:22] Speaker 01: That is their response, Your Honor. [00:29:24] Speaker 01: and they can't point to anything in the specification that clearly says that. [00:29:28] Speaker 01: They are just weaving together various passages of the specification, trying to support that, but even if there were somewhere in the specification, and the primary discussion of the custom media device comes from column 13, and that's what my friend was talking about earlier, where the specification alternatively talks about a custom media device, a custom media device application, a custom media device driver, and talks about them interchangeably, [00:29:54] Speaker 01: as if they are different components and yet somehow the same. [00:29:59] Speaker 01: For example, the sentence that my friend read was a custom media device application and then uses as an example the custom media device 310. [00:30:08] Speaker 01: But as your honor spoke to earlier, the term custom media device suggests it's hardware in some fashion. [00:30:16] Speaker 01: Throughout the specification, whenever there's a description of a device, it's referring to hardware. [00:30:22] Speaker 01: Here there's nothing, and of course Capital One did submit an expert report that the district court did rely on and cite to that talked about device connoting hardware. [00:30:32] Speaker 01: Something's hard. [00:30:33] Speaker 05: What about the fact that it specifically calls out an application in the specification itself? [00:30:39] Speaker 01: I believe that just adds to the ambiguity and confusion because it refers to a custom media device application and then says, e.g. [00:30:48] Speaker 01: custom media device 310. [00:30:50] Speaker 01: So the custom e-device 310 is an example of a custom e-device application, but could be other things. [00:30:57] Speaker 01: We don't know. [00:30:57] Speaker 01: In addition, it says the custom e-device driver. [00:31:01] Speaker 01: And when you have a driver, and our Capital One's expert also spoke to this, when you have a driver, a driver is something that you tend to communicate with [00:31:10] Speaker 01: hardware. [00:31:12] Speaker 03: I suppose we could read that. [00:31:13] Speaker 03: I hadn't thought of it before. [00:31:15] Speaker 03: Thank you for the explanation. [00:31:17] Speaker 03: I suppose we could read that as the patentee defining custom media device as also an application, couldn't we? [00:31:26] Speaker 01: That is the position that MRT has taken, that is exclusively an application because of that per end. [00:31:32] Speaker 03: Even without saying it's exclusively an application, the patentee may be saying it's both. [00:31:39] Speaker 03: a device is both a device and an application, and we don't care which it is, says the patentee. [00:31:46] Speaker 01: Well, the patentee certainly has not clearly stated what it is or described it in a way that it's easy to figure out what it is. [00:31:57] Speaker 01: I mean, they have avoided the obligation to clearly and definitely disclose to the public what the scope of their invention is. [00:32:05] Speaker 01: I mean, the most telling part of it, of course, [00:32:08] Speaker 01: Even if we, even if we say it's an application, because if there's a custom device application, and custom device 310 is an example of that, let's say that. [00:32:18] Speaker 01: Okay, so it's an application, but it doesn't tell you any more than that. [00:32:22] Speaker 01: It doesn't tell you what it does, how it does it, and how it's customized most importantly. [00:32:30] Speaker 01: Your Honor, the question that led into this, we were asking about their position that [00:32:36] Speaker 01: The custom media device is specific to the media being played. [00:32:39] Speaker 01: Well, all media devices, standard media devices are specific to the media played. [00:32:46] Speaker 01: A CBD player plays music. [00:32:48] Speaker 01: A video player plays video. [00:32:50] Speaker 01: So that in and of itself doesn't make it custom. [00:32:54] Speaker 01: There must be something else. [00:32:56] Speaker 01: But I defy MRT to identify anywhere in the specification where it clearly tells you how it's been customized. [00:33:05] Speaker 01: As we pointed out in our brief, one of the most telling aspects of it is that MRT's proposed construction, which is that it is a driver or application specific to the media content being played, viewed, or presented, captures standard media devices. [00:33:24] Speaker 01: So there's no distinction there. [00:33:25] Speaker 01: There's no way to know whether you have a custom media device or a standard media device. [00:33:30] Speaker 01: They have simply left customized [00:33:31] Speaker 04: Well, if you read the word specific in that claim construction to mean single purpose as opposed to multi-purpose, wouldn't that at least exclude those devices that would play a CD and a DVD, for example? [00:33:48] Speaker 01: That is possible. [00:33:49] Speaker 01: MRT certainly has not taken that position. [00:33:51] Speaker 01: As I discussed earlier, MRT is trying to take [00:33:56] Speaker 01: a patent directed at the unauthorized recording of media in the context of audio and video files and have it apply to the transfer of information to customers over the internet. [00:34:09] Speaker 01: So they haven't taken that and they've avoided and disclaimed any narrowing of the meaning of these claim terms. [00:34:17] Speaker 05: Okay, your time is up. [00:34:18] Speaker 01: Thank you. [00:34:27] Speaker 00: If I may, I'd like to talk about how the custom media device is customized. [00:34:35] Speaker 00: The proposed construction that MRT set forth below and in this brief here was, as I said earlier, an application or driver specific to the particular media content being presented. [00:34:47] Speaker 05: What does driver mean in that context? [00:34:51] Speaker 00: So the patent gives examples where the custom media device can emulate a driver and the driver could [00:34:56] Speaker 00: It's essentially software that would allow a piece of hardware to operate or another piece of software. [00:35:02] Speaker 00: One example given is total recorder in the patent, which is a recording functionality in Microsoft operating system. [00:35:13] Speaker 00: When the custom media device emulates the driver, it's missing some of the native functionality that the total recorder would need in order to record. [00:35:25] Speaker 00: If you take that and turn it back to the proposed construction, if you read it in isolation, I do think there's a problem with the construction, but the construction needs to be put into the context of the terms, and that will help illuminate how the custom media device is customized. [00:35:41] Speaker 00: The proposed construction gets that one piece of it, and that is the inventions are directed to restricted media content, and the patent describes the labeling of this media content. [00:35:52] Speaker 00: in one example, and in another example, how the custom media device would be the only device through which this restricted media could pass and be playable. [00:36:01] Speaker 00: If you place it into the context of the claims, the custom media device has some other important attributes. [00:36:06] Speaker 00: As I said earlier, it's coupled to the compliance mechanism. [00:36:09] Speaker 04: Can I just ask you something that I'm probably confused with? [00:36:16] Speaker 04: In the figure [00:36:23] Speaker 04: I guess 5B, 5C, essentially the same photo. [00:36:30] Speaker 04: Let's use 5C. [00:36:32] Speaker 04: I think they are, I think that's the same. [00:36:34] Speaker 04: But there are at least two paths by which media can come in on the left through the playback application and get out to the recording application, 502, without passing through the custom media device. [00:36:51] Speaker 04: The two paths that [00:36:53] Speaker 04: the northward arrows would be through 548 and 568. [00:36:59] Speaker 04: You can get to those two things without going through the custom media device. [00:37:04] Speaker 00: I just want to make sure I understand what you're thinking of. [00:37:07] Speaker 04: Right at the top. [00:37:08] Speaker 04: Playback, one example is 501 to 503, then up 548 out to 502. [00:37:18] Speaker 04: The other is playback 501 [00:37:21] Speaker 04: across down to 504 direct sound, and then up through 568 to the recording application. [00:37:29] Speaker 04: And both of those are under the control of the compliance mechanism. [00:37:33] Speaker 04: They can close those two, they don't call them gates, I guess, but it's the 548 and 568, but they both show tabs that don't go through the custom media device by which recording can take place. [00:37:51] Speaker 00: Right, so if the data or the media were on the common pathway, it would be possible for the media to go 501 down to 503 and then return to the recording application and not encounter the custom media device, for example. [00:38:05] Speaker 00: What's shown here in figure five is we're now on a controlled pathway and the media must go all the way down to the output device before it returns. [00:38:14] Speaker 00: If you look at 580, that's the, I think the only place in this figure where it has the two-way arrows, [00:38:20] Speaker 00: indicate that the media and these other boxes must continue on that downward path. [00:38:27] Speaker 04: I guess the reason that I asked it and maybe I'm confused about the connection is that it seemed to me that both in your reply brief and I think as you were beginning to talk you were trying to narrow the custom media device to that thing which allows recording as if that meant that was the exclusive way [00:38:46] Speaker 04: that a recording could take place. [00:38:48] Speaker 04: And the two paths that I just described seem to me to be ways that recording can take place without going through that. [00:38:55] Speaker 00: Okay, I think part of the computer, maybe what I meant to communicate was that the custom media device in most environments is a way to prevent unauthorized recording, not to allow it. [00:39:06] Speaker 00: And what's shown here in Figure 5B, for example, there are several ways to do that. [00:39:09] Speaker 00: WaveShim Driver 309 is another way to do it. [00:39:13] Speaker 00: What's customized about the custom media device [00:39:16] Speaker 00: is that it is able to interact with the CCM300 here, for example, in figure 5B. [00:39:23] Speaker 00: The patent in other examples explains that standard media players, that the custom media device, I'm sorry, that the compliance mechanism couldn't control, you would need to customize them, and that gives the example of the skin. [00:39:34] Speaker 00: So that's one way to distinguish standards from custom. [00:39:37] Speaker 05: And finally, my time is... Let me just ask you before you sit down. [00:39:42] Speaker 05: Your friend on the other side said that [00:39:45] Speaker 05: you disclaimed the CCM as being consistent or the same as the compliance mechanism. [00:39:56] Speaker 05: Is that true? [00:39:57] Speaker 00: I don't think I've used the word disclaimed. [00:40:00] Speaker 00: Copyright compliance mechanism falls within the scope of compliance mechanism. [00:40:06] Speaker 00: The patent does mention compliance mechanism in the abstract, for example. [00:40:10] Speaker 05: So it is your position that compliance mechanism [00:40:12] Speaker 05: mechanism is broader than copyright compliance. [00:40:15] Speaker 00: That's right. [00:40:16] Speaker 00: I think the patent simply describes the broader compliance mechanism through the example of the copyright compliance mechanism. [00:40:22] Speaker 00: And as is clear from the specification, copyright is one way that the media could be restricted, but not the only way. [00:40:30] Speaker 00: And it describes that through the example of a copyright restriction. [00:40:34] Speaker 05: The whole first column of your patent says, we're going to tell you a lot of stuff, but you don't necessarily need all this stuff. [00:40:40] Speaker 05: And we're going to not tell you a lot of stuff, [00:40:42] Speaker 05: but don't believe that we didn't tell you this stuff, right? [00:40:47] Speaker 05: That's the strangest opening to a patent I've ever seen, but I understand your position now. [00:40:53] Speaker 05: Thank you.