[00:00:00] Speaker 02: 1108, open wave systems versus Apple. [00:00:38] Speaker 02: Mr. Stevenson, please proceed. [00:00:55] Speaker 02: Please proceed. [00:00:57] Speaker 03: May it please the court. [00:00:59] Speaker 03: The statements in the specification that were cited by the district court as terms of exclusion are actually terms of inclusion. [00:01:08] Speaker 03: And that's the crux of the error that means that the court should reverse the claim construction below. [00:01:15] Speaker 03: The patents in this case disclose software, a client module that runs on a phone and allows the claimed features, which are predictive text, generation of HTTP requests, caching of linked pages, that sort of thing. [00:01:34] Speaker 03: The advantage of the computer software module is that it's efficient. [00:01:39] Speaker 03: It can run not just on intelligent communicators with a lot of processing capability, but it also can run on regular cell phones. [00:01:47] Speaker 03: Because regular cell phones are included, that doesn't mean more powerful devices are excluded. [00:01:54] Speaker 03: And that, I think, is the crux of the error below. [00:01:57] Speaker 03: In looking at the language cited by the district court in its claim construction, [00:02:02] Speaker 03: It repeatedly cites to language of advantage that the client devices are able to run on mobile phones that don't have a lot of processing resources. [00:02:14] Speaker 03: But that language doesn't rise to the level of saying that more powerful processors cannot run the program. [00:02:21] Speaker 04: But there's other statements in this spec, too, right? [00:02:23] Speaker 04: I mean, when I read the patent and I look at the background of this, and the background identifies a problem. [00:02:32] Speaker 04: with current intelligent phones. [00:02:36] Speaker 04: They're too bulky. [00:02:37] Speaker 04: They're too expensive. [00:02:38] Speaker 04: They're too inflexible. [00:02:40] Speaker 04: And then the summary of the invention says, here's our solution. [00:02:44] Speaker 04: Unlike that, we're going with a client module. [00:02:47] Speaker 04: We're going with a lightweight processor. [00:02:50] Speaker 04: I mean, the inference is pretty strong. [00:02:55] Speaker 04: And this is what the district court bought off on, that the idea, the [00:03:00] Speaker 04: Inventive concept, inventive contribution here was to offload all the processing power for these various applications to a remote server and not have some bulky computer module contained inside your mobile device. [00:03:21] Speaker 03: May offer a refinement to that and that is looking at the claims. [00:03:25] Speaker 03: The claims of the patents deal with [00:03:29] Speaker 03: generating an HTTP request, which is very novel in 1995. [00:03:32] Speaker 03: They deal with caching linked pages to speed up browsing. [00:03:36] Speaker 03: They deal with update notifications for apps. [00:03:41] Speaker 03: So the novelty wasn't already resident within the intelligent communicators. [00:03:45] Speaker 03: And in fact, there's no evidence in the record that the intelligent communicators could do anything in the claims. [00:03:51] Speaker 03: So the point of novelty here is not that we've created a mobile device [00:03:58] Speaker 03: that is thinner, cheaper, less processing power. [00:04:04] Speaker 03: That's an advantage of the client module. [00:04:05] Speaker 03: In other words, what I read the inventor saying in about the first 20 pages, or 20 columns of this specification is, the industry took the wrong path. [00:04:14] Speaker 03: The path taken by the industry was to build bulky communicators that have a client module, excuse me, a computer module on top of a phone. [00:04:25] Speaker 03: I found a better way of doing it, and that is to use [00:04:28] Speaker 03: a lightweight software program that allows the phone, existing resources in the phone, to become a client on the network. [00:04:38] Speaker 03: What that means is not my client module, which has these features, can't run on more powerful devices. [00:04:46] Speaker 03: I mean, it certainly can, and the patent never says anywhere that it can't. [00:04:50] Speaker 01: Well, when you say the patent never says anywhere, the planes, I just admit, do not talk about [00:04:58] Speaker 01: processor size or power. [00:05:00] Speaker 01: But the question here is whether or not there is enough in the specification where there is a disavowal. [00:05:07] Speaker 01: I mean, obviously computer modules and using computer modules in the phone system was something that the entire patent was trying to move away from and touted as important to move away from. [00:05:24] Speaker 01: So there's so many derogatory statements [00:05:27] Speaker 01: here in your specification that how do you get around this? [00:05:32] Speaker 03: Because of the reason they wanted to move away was for marketing reasons, right? [00:05:37] Speaker 03: Most of the statements say they're too bulky, they're too expensive, but there aren't any statements anywhere in the patent that say, well, these devices can't run my program and can't parse HTML, they can't do caching of link pages, they can't do what's claimed. [00:05:53] Speaker 03: And so the disavowal doesn't exist in terms of [00:05:58] Speaker 01: I don't really understand the marketing. [00:06:01] Speaker 01: You can build a better mousetrap because it kills mouses better, or you can build a better mousetrap because it's smaller, thinner, better looking, and people prefer to kill mouses with that. [00:06:14] Speaker 02: Are you saying mouses? [00:06:15] Speaker 01: Mises. [00:06:19] Speaker 01: Mises to pieces. [00:06:22] Speaker 01: You can build a better mousetrap in a variety of ways, one of which is that it's more marketable. [00:06:28] Speaker 03: Right. [00:06:29] Speaker 03: But the question then becomes really, if I do build something more marketable, is that a disavowal of subject matter appended upon the plain meaning of my claims? [00:06:40] Speaker 03: And if I can give an example, let's say I was to come up with a new method of streaming video, an application that streams video. [00:06:48] Speaker 03: And it's a thin, lightweight application. [00:06:51] Speaker 03: And it can run and has additional features like fast forwarding. [00:06:54] Speaker 03: And I say to you, [00:06:56] Speaker 03: I've got a new application. [00:06:57] Speaker 03: It's thin. [00:06:58] Speaker 03: It can run on a cell phone. [00:06:59] Speaker 03: It can run on a tablet. [00:07:00] Speaker 03: It doesn't take a lot of processing speed, and it doesn't take a lot of memory. [00:07:05] Speaker 03: It can also run on a laptop or a desktop. [00:07:08] Speaker 03: Have I excluded by touting the advantage of saying you can have video in your pocket? [00:07:12] Speaker 03: Have I excluded video on the desktop? [00:07:15] Speaker 03: I don't think I have in that context. [00:07:17] Speaker 03: And I think that's exactly the context of what is going on in this patent where the inventor says, I have a new client module. [00:07:24] Speaker 03: that allows a lot of features, and the specification is replete with features that aren't just based on smaller size, but are based on basically web surfing features. [00:07:34] Speaker 04: I guess the concern I have with your reading of the patent is the patent talks about all these problems with the prior art forms, right? [00:07:42] Speaker 04: And then, like I lifted some of them off, too bulky, too extensive, and then your summary of the invention talks about how, according to the principles of this invention, [00:07:54] Speaker 04: the prior art limitations have been overcome. [00:07:57] Speaker 04: Okay, so I'm assuming those prior art limitations are too bulky, too expensive, too inflexible. [00:08:05] Speaker 04: So somehow this invention has removed the bulk. [00:08:11] Speaker 04: And it removed the bulk, the only logical conclusion is it removed the bulk by swapping out the heavyweight computer module for the lightweight client module. [00:08:19] Speaker 04: Using the existing technologies in a [00:08:23] Speaker 04: standard cell phone back in 1995. [00:08:26] Speaker 03: I agree with everything there except the word swapping out. [00:08:29] Speaker 03: Okay. [00:08:29] Speaker 03: And I would say instead of swapping out, which implies I'm going to throw the bulky handset away, I read it as we have a whole raft of devices. [00:08:39] Speaker 03: This is 1995 in the market. [00:08:41] Speaker 03: People have cell phones and they're old cell phones and these new communicators have come out and they're bulky and they're expensive and people aren't buying them because you can't walk around with them and make calls the way you can with the cell phone. [00:08:52] Speaker 03: And what the inventor says is, I've got a thin, lightweight program. [00:08:56] Speaker 03: It will run on the cell phone. [00:08:58] Speaker 03: And I've overcome the marketing problems, the commercial problems, of these intelligent communicators, which have a lot more processing power than you really need. [00:09:08] Speaker 03: But I don't think the inventor would have said, if asked, could your client module run on the more powerful phones? [00:09:17] Speaker 03: We said, yeah, it can. [00:09:18] Speaker 03: And so the question before the court is, [00:09:21] Speaker 03: Did the inventor exclude the more powerful phones from the definition of what a mobile device is? [00:09:26] Speaker 03: Because they're within the plain meaning. [00:09:28] Speaker 03: And your honor, I think in response to your question, that's why I say it's not a swap out. [00:09:33] Speaker 03: And that's why I say it is more of inclusion of additional devices that previously couldn't be included. [00:09:39] Speaker 02: Certainly you have to agree that in at least one environment, it was an actual swipe out, right? [00:09:45] Speaker 02: Because that's the sentence on page one of your opposing counsel's brief, which comes from column 14. [00:09:51] Speaker 02: where it says specifically the cellular phone 100 is not a combination of a computer module and a wireless communication module as in prior art attempts to create intelligent phones. [00:10:01] Speaker 02: So at least one embodiment, it is actually a swap out. [00:10:04] Speaker 02: It's not an add-on, right? [00:10:05] Speaker 03: I don't read that as a swap out, Your Honor. [00:10:09] Speaker 03: If I may explain. [00:10:10] Speaker 02: Actually cellular telephone is not a combination of a computer module and a wireless communication module as in prior art attempts. [00:10:19] Speaker 02: Okay? [00:10:19] Speaker 02: I'm curious. [00:10:20] Speaker 03: I started my reading, Your Honor, a few sentences earlier at about line 43 where the specification, they're talking about entry of a purchase order, right? [00:10:30] Speaker 03: And the user is able on his cell phone to essentially type in and handle an entire purchase order through the network. [00:10:39] Speaker 03: They first say is, quote, notice the user is entering data and not just simply selecting a menu item. [00:10:46] Speaker 03: The importance of that is, in the next sentence, [00:10:49] Speaker 03: is the users using the cell phone as if a computer connected to the network. [00:10:56] Speaker 03: But as explained more below, the cellular telephone is similar to a standard digital-capable cellular telephone that communicates over data-capable cellular telephone network. [00:11:06] Speaker 03: Specifically, cellular telephone is not a combination of a computer module and a wireless communication module, as in prior attempts to create an intelligent phone. [00:11:17] Speaker 03: I read that as the inventor saying, [00:11:19] Speaker 03: look how good this cell phone can behave. [00:11:23] Speaker 03: But I don't read that as him saying, by the way, I intend to exclude somebody if they wanted to use the more powerful device. [00:11:31] Speaker 03: And as further, as further support for that, I'd go down a little further into the next column in column 15, around six, line six. [00:11:40] Speaker 03: And there the inventor is talking about another example of essentially doing an online transaction. [00:11:45] Speaker 03: And he says, [00:11:46] Speaker 03: The processes of this invention, quote, permit cellular telephone 100 to effectively utilize an application on server computer on network even though, and that's the key word, even though cellular telephone utilizes only a microcontroller found in telephone and does not require a separate computer module as in the prior part. [00:12:07] Speaker 03: Even though. [00:12:08] Speaker 03: So the word even though is word of, in my view, inclusion, in other words, [00:12:13] Speaker 03: This works on your phone, even though it's not a big, bulky computer module. [00:12:19] Speaker 02: So this kind of goes to the argument, which I do not understand about microcontroller and computer module. [00:12:28] Speaker 02: Clearly, the patent acknowledges, and the district court did as well in this construction, the idea that a microcontroller can be present on a good old-fashioned cellular telephone, independent of a computer module, which might also have a microcontroller. [00:12:44] Speaker 02: So is that what your argument about column 14 hinges on? [00:12:47] Speaker 02: Because I don't understand your argument about column 14. [00:12:49] Speaker 02: I don't know how. [00:12:50] Speaker 02: You haven't explained to me, and I'm not following your argument. [00:12:54] Speaker 02: The sentence seems really clearly a swap out to me. [00:12:57] Speaker 02: And so I'm not following it. [00:12:58] Speaker 02: So is it because you're hinging it on the idea that later on it says even though you can have a microcontroller? [00:13:04] Speaker 02: Because I agree with you, as did the district court, that this patent contemplates the inclusion of a microcontroller. [00:13:12] Speaker 02: not in the computer module, or in the computer module, but the microcontroller is contemplated as being allowable. [00:13:18] Speaker 02: So is that what your Column 14 argument is? [00:13:22] Speaker 03: No, it's a little bit different. [00:13:23] Speaker 03: It doesn't hinge on that distinction between microcontroller and computer module. [00:13:26] Speaker 03: What it really hinges on is reading the specification and understanding the pride the inventor had in his invention. [00:13:34] Speaker 03: What he is saying in my reading here is, [00:13:37] Speaker 03: Look that I'm able to use my phone as a client on the network, and specifically, it's not a combination of computer module and wireless communication module, it's a phone. [00:13:51] Speaker 03: Look how great it is. [00:13:53] Speaker 03: But what I don't read him saying there is I intend to exclude more powerful devices from using my invention to become a client on the network. [00:14:03] Speaker 03: And what's very important here, your honor, is [00:14:07] Speaker 03: the communicators, the four or five examples that are given in the specification, they couldn't do this. [00:14:14] Speaker 03: So this isn't a situation where the inventor has to say to get over the prior art, I'm different, I have a small thin device. [00:14:23] Speaker 03: They didn't have these features and what's in the record on these is a few passages that are contained at A, I think 4405 on the Newton as well as the Simon. [00:14:37] Speaker 03: And they're basically advertising flicks for those products. [00:14:42] Speaker 02: Your rebuttal time? [00:14:43] Speaker 02: Do you want to save the rest? [00:14:46] Speaker 03: I'll stop by saying none of those prior art flicks mention the ability to get on the network, to surf the web, to do parsing of web pages, or to do caching of any sort. [00:14:59] Speaker 03: So these statements aren't to get over prior art. [00:15:04] Speaker 01: Mr. Perry? [00:15:06] Speaker 00: Thank you, your honor, and may it please the court. [00:15:12] Speaker 00: Mr. Rossman, the applicant here, did not invent client server architecture. [00:15:18] Speaker 00: And he told us that in the specification, column nine, this is line 20 or thereabouts, while client server architectures have been used extensively in computer networks, [00:15:32] Speaker 00: A client server architecture implemented using two-way communication data devices yields new and unexpected results. [00:15:41] Speaker 00: That's the distinction over the prior art. [00:15:43] Speaker 00: Computers versus two-way data communication devices. [00:15:46] Speaker 00: The inventor is telling us in that passage that the two-way devices at issue are not computers. [00:15:52] Speaker 00: He then answers. [00:15:53] Speaker 01: The real question is, and this is what your friend on the other side would argue, is that [00:15:59] Speaker 01: The mere fact that we have this separate two-way data communication doesn't exclude the possibility of having that as well as a computer module. [00:16:09] Speaker 00: It does, Judge O'Malley, with respect. [00:16:11] Speaker 00: On column 11, for example, about line 35, the applicant says that the devices, quote, built according to the principles of this invention are not expected to have a significantly lower battery life than standard cellular telephones or two-way pagers. [00:16:29] Speaker 00: If you did what Mr. Stevenson suggested this morning and installed the thin client model on a Simon from 1995, it would have had the same poor battery life about 30 minutes as that Simon did because of the computer module. [00:16:42] Speaker 00: This did not solve the problem of the computer module. [00:16:45] Speaker 02: This isn't a disclaimer. [00:16:47] Speaker 02: I mean, first off, the idea certainly you'll agree that this patent absolutely discloses putting a [00:16:58] Speaker 02: client module onto a cell phone without a computer module. [00:17:02] Speaker 02: There's no doubt that is the thrust of what is disclosed here, and this sentence just says, building it this way, you're going to have significantly lower problems with battery life and other things. [00:17:16] Speaker 00: Your Honor, we definitely agree that it discloses installing the client module in a standard cell phone. [00:17:21] Speaker 02: In fact, the invention here... Just because it discloses [00:17:24] Speaker 02: disclosing it in a standard cell phone and the advantage that would be achieved by that, I don't see how that sentence morphs. [00:17:31] Speaker 02: And I'm not even sure you highlighted that sentence, so it's strange to me that you're leading with it, because I think I highlighted everything in the patent you highlighted. [00:17:37] Speaker 02: But in any event, I don't see that sentence standing alone by any means as a disclaimer. [00:17:46] Speaker 02: So why don't you move to the [00:17:47] Speaker 02: better arguments that you have. [00:17:49] Speaker 00: As in all things, it is not any standalone sentence or snippet. [00:17:52] Speaker 00: This briefing is a little bit of the battle of the snippets. [00:17:55] Speaker 00: We would submit that this case ought to be resolved as all claim construction cases by reading the specification as a whole to the claims. [00:18:02] Speaker 00: The claims require, at least of the 409 and 447 patent, the client module running on a processor. [00:18:08] Speaker 00: We know that. [00:18:09] Speaker 00: There is a hardware limitation in these claims. [00:18:11] Speaker 00: So what is the processor? [00:18:12] Speaker 00: Is it a microcontroller or is it a computer module? [00:18:15] Speaker 00: We know that it is not a computer module by at least four steps. [00:18:20] Speaker 00: First, there is in one embodiment, Figure 6, a disclosure of exactly what the microcontroller is. [00:18:25] Speaker 00: It's Block 610. [00:18:28] Speaker 00: It's an analog devices model, SP-TTT01. [00:18:32] Speaker 01: But you can see that that was just as to one embodiment. [00:18:34] Speaker 00: Absolutely right. [00:18:36] Speaker 00: But that is showing us what the microcontroller was. [00:18:38] Speaker 00: That is not a computer. [00:18:39] Speaker 00: We know that from the state of the art in 1995. [00:18:43] Speaker 01: Speaking of the state of the art in 1995, do we have to find that there is evidence to conclude that this was necessary to overcome prior art in order for us to find the disavowal? [00:18:56] Speaker 00: Absolutely not, Your Honor. [00:18:57] Speaker 00: We made that point in response to the inventor's argument in this court, which they did not make below, that there was no reason for this disavowal. [00:19:06] Speaker 00: There was a reason for the disavowal, which was to take into account the prior art. [00:19:11] Speaker 00: Prior art computer systems [00:19:13] Speaker 00: could run applications on servers. [00:19:15] Speaker 00: That's absolutely undisputed. [00:19:16] Speaker 00: In fact, that's how email has always worked. [00:19:18] Speaker 00: The email resides on the server and the client device accesses it. [00:19:22] Speaker 00: The prior art devices, including Simon, had email functionality using servers. [00:19:27] Speaker 00: That's the evidence in the record that we put in on that point. [00:19:31] Speaker 00: So that it was not enough. [00:19:32] Speaker 00: All of these things, by the way, the invention here simply says that the device can send a resource request and get it back from a server. [00:19:40] Speaker 00: If you had done that on a computer, a desktop computer, this patent would not have issued, because that was well known in the art. [00:19:46] Speaker 00: Had you done that on a laptop computer, this patent would not have issued. [00:19:49] Speaker 00: Had you done it on a phone with a computer module, this patent would not have issued. [00:19:53] Speaker 00: The inventor was very carefully describing the advance over prior art computers by saying, I, for the first time, have developed client server architecture for non-computers. [00:20:05] Speaker 00: I can take the little tiny bit of processing power and memory, and if you look at the description in one of the embodiments, it is truly a tiny amount, 64 kilobytes, one MIPS of instructions, and say I can use that tiny bit of processing power that existed. [00:20:21] Speaker 02: But why? [00:20:22] Speaker 02: I don't understand why, I don't know, I feel like you're taking on a bigger burden than you need to, but more power to you. [00:20:29] Speaker 02: Why are you saying it's absolutely clear he could not have gotten this [00:20:33] Speaker 02: these claims on a standard cell phone with a computer module. [00:20:37] Speaker 02: Why? [00:20:37] Speaker 02: These claims add, and this invention adds, lots of advantages even to a big bulky phone. [00:20:43] Speaker 02: For example, dynamic processing, right? [00:20:47] Speaker 02: You know, you don't have to re-burn stuff on the old fashioned phone. [00:20:51] Speaker 02: You can dynamically interact with the server, therefore gain access to lots of additional applications without more power consumption. [00:20:59] Speaker 02: Not necessarily replacing the old computer module [00:21:02] Speaker 02: in terms of its power consumption, but you could get even more by adding this client server onto the old phone. [00:21:09] Speaker 02: So you're telling me they absolutely, no way would they have gotten this without replacing the computer module, and I just don't see that that's even correct, and nor was it decided below, it doesn't seem to me. [00:21:21] Speaker 00: Your Honor, the invention is proposing an alternative approach, and the patent uses that term approach. [00:21:28] Speaker 02: I don't want to talk about the inventions proposing. [00:21:29] Speaker 02: I want to talk about what you just said. [00:21:31] Speaker 02: In response to Judge O'Malley, [00:21:32] Speaker 02: You said they couldn't have gotten these claims if they had added a client module onto an existing big, which you held up prior to our cell phone. [00:21:42] Speaker 02: I didn't think that that was decided below. [00:21:44] Speaker 02: I'm surprised that you're making that claim so forcefully to us because it doesn't necessarily seem clear to me by any stretch. [00:21:53] Speaker 00: Your honor, let me go back to column nine where the applicant, the inventor tells us what's involved. [00:21:59] Speaker 00: While client server architectures have been used extensively in computer networks, it's new and inventive in use in two-way data communication devices. [00:22:10] Speaker 00: The distinction that is being drawn is between those devices and computer devices. [00:22:15] Speaker 00: And when we read the specification over and over again, that's column nine, your honor, about line 20. [00:22:21] Speaker 00: In the 409 patent, it's lines 18 through 21. [00:22:27] Speaker 00: The distinction being drawn throughout this patent is between computers or computer modules on the one hand and two-way data devices on the other. [00:22:37] Speaker 00: The suggestion now being made in this court 20 years later by Unwired Planet is that those two-way data devices included computers. [00:22:46] Speaker 00: Our argument, of which this is only a part judgment warrant, is that they did not include computers from the very first line of the specification which says, [00:22:54] Speaker 00: the prior art attempts to combine computers and devices was not successful, citing specifically the Simon. [00:23:01] Speaker 00: And then it goes on to explain why. [00:23:03] Speaker 00: This thin client module that was developed to run on the processor, the microcontroller of a cell phone, was an alternative approach. [00:23:11] Speaker 00: It was a way around the limitations in computer modules. [00:23:15] Speaker 00: The avoidance of the prior art, whether or not it's necessary for validity judgment, it was clearly the applicant's [00:23:21] Speaker 00: disclosure to both the patent office and the world as to what he was doing. [00:23:25] Speaker 00: He said, I am not claiming a computer. [00:23:27] Speaker 00: I am claiming these thin client modules. [00:23:30] Speaker 00: And when the patent goes through over and over again in the specifications, embodiment after embodiment to say... What's your best evidence that the inventor said, I am not claiming a computer module? [00:23:42] Speaker 00: Your Honor, the passage in column nine that I just read, if you follow that up with two other points, further down in column nine on the flexibility [00:23:51] Speaker 00: The patentee says the problem with the prior art was they all used operating systems. [00:23:56] Speaker 00: Well, of course, they used operating systems because they were computers. [00:23:59] Speaker 00: This invention, he says, bypasses the operating system because there is no computer. [00:24:03] Speaker 00: If it included a computer, it would include an operating system, and that advantage would not be present. [00:24:07] Speaker 00: Second, Judge Chen, on column 14, line 41, which Mr. Stevenson read to you as well, it says, quote, the user is utilizing the cellular telephone as if [00:24:20] Speaker 00: it were a computer on the network. [00:24:23] Speaker 00: That is, it is not a computer on the network, it is emulating a computer on the network. [00:24:27] Speaker 00: The client module running on the microcontroller makes it act like a computer, but it's not a computer. [00:24:33] Speaker 00: In fact, it goes on to say that, as explained more completely to go below, excuse me, it's a standard digital telephone, and then it goes on, quote, specifically, it is not a combination of a computer module and a wireless communication module, as in prior art attempts. [00:24:49] Speaker 00: Here the applicant again is distinguishing over the prior art on the basis of the absence of a computer module, this thin client. [00:24:55] Speaker 02: This is clearly, I mean, you have to admit, Mr. Fray, this is an embodiment, right? [00:24:59] Speaker 02: I know embodiments that show adding it in, but if this were all you had, don't you agree you'd be on thin ice? [00:25:07] Speaker 02: Like if this were the only sentence in the entire specification, you had nothing else to point to because this, not the paragraph, but the section begins in this example, the user. [00:25:16] Speaker 02: Right? [00:25:17] Speaker 02: This is an embodiment. [00:25:18] Speaker 02: This doesn't carry you across the finish line. [00:25:20] Speaker 00: Judge Moore, if this were the only thing we had, I would agree with you, but it's not the only thing. [00:25:25] Speaker 00: I understand. [00:25:25] Speaker 00: Specification, again, from the background, through the summary, through the written description, every figure, every disclosure, all points in one direction. [00:25:33] Speaker 00: The use of the thin client module in the microcontroller as distinguished from the use of a computer module. [00:25:39] Speaker 00: And there is no disclosure. [00:25:41] Speaker 00: There is no example. [00:25:42] Speaker 00: There is no hint. [00:25:44] Speaker 00: that a device with a computer module would or could or would use this invention. [00:25:50] Speaker 00: And let's think about what unwired planets position in this court means. [00:25:54] Speaker 00: This patent starts out by saying the prior art devices, like the Simon, are failures. [00:26:00] Speaker 00: And I have come up with an alternative. [00:26:03] Speaker 00: Unwired planets argument now is these claims cover the Simon. [00:26:09] Speaker 00: I would submit this patent can be read in many ways, perhaps, but not to cover the very device that I name. [00:26:17] Speaker 01: What's your response to, your friend on the other side argues that the mere fact that they tout marketing advantages [00:26:25] Speaker 01: from not using a computer module is not relevant to the question of disavowal. [00:26:30] Speaker 01: Do you agree with that? [00:26:31] Speaker 00: I don't agree with that at all. [00:26:32] Speaker 00: These are consumer products. [00:26:34] Speaker 00: They are only valuable if they can be marketed to the public. [00:26:36] Speaker 00: The background of the invention makes clear that the failure of the prior devices was they wouldn't fit in your pocket and they were too expensive. [00:26:42] Speaker 00: Therefore, people wouldn't buy them. [00:26:44] Speaker 00: Simon sold about 50,000 units before they discontinued it. [00:26:49] Speaker 00: The approach that was adopted here was allowing [00:26:52] Speaker 00: the then existing small phones that did fit in your pocket and could be affordable to have sort of rudimentary internet access. [00:27:01] Speaker 00: They could send out a resource locator and get back a line or two of text, which was new and inventive perhaps, but it was not internet browsing as my colleague may have suggested. [00:27:11] Speaker 00: It was a very limited proto approach to the internet. [00:27:15] Speaker 00: Marketing advantages, which are driven by technology, absolutely can be the scope of the disavowal because the goal of this patent, as disclosed from the very beginning of the summary of the invention, is to create a small, lightweight, affordable device with sufficient battery power that consumers would actually use it. [00:27:34] Speaker 00: So to dismiss the disavowal as a marketing-based point, I don't agree with either the matter of law as a matter of fact. [00:27:41] Speaker 00: It is a consumer product that the technology of the time did not allow to be made. [00:27:47] Speaker 00: It's an interesting patent in that respect. [00:27:48] Speaker 00: The patent acknowledges that in five years or more, computer modules would come down in size and cost. [00:27:55] Speaker 00: The applicant recognized that Moore's Law would kick in and that eventually in the future there would be smartphones. [00:28:01] Speaker 00: This was an approach to go around the technology that existed in 1995. [00:28:07] Speaker 00: That was very forthright on the applicant's part. [00:28:11] Speaker 00: It's the reason, by the way, we would submit that the prosecution history doesn't have anything to say about this, because I don't believe anybody thought that this covered these computer modules. [00:28:21] Speaker 00: I mean, to answer Mr. Stevenson's question, if you had asked Mr. Rossman in 1995, does your patent cover the Simon, [00:28:27] Speaker 00: The only answer he would or could have given was no. [00:28:30] Speaker 02: And if that answer was... At the time, the Simon didn't have a client server. [00:28:33] Speaker 02: So the question would be, does your patent cover the Simon if you add a client module? [00:28:38] Speaker 00: That's not correct, Judge Morton. [00:28:40] Speaker 00: In 1995, the Simon had an email server, a client server-based email system made by the Lotus Corporation. [00:28:48] Speaker 00: That was available on the Simon in 1995. [00:28:51] Speaker 00: The MagicLink from Sony had the MagicCap software, which also had a client server email system. [00:28:57] Speaker 00: We cite that at page 6611 of the appendix. [00:29:01] Speaker 00: These are in the record, Your Honor. [00:29:03] Speaker 00: There's not a lot of technical specs on it, but it is certainly the case that email in 1995 was a client-server architecture. [00:29:10] Speaker 01: That's all it is. [00:29:13] Speaker 01: If the inventor is predicting that in five to 10 years we're going to have smartphones that can actually have a computer module in them, [00:29:21] Speaker 01: and satisfy all these other marketing concerns, why would he disavow them now? [00:29:26] Speaker 00: Because, Your Honor, this invention is not necessary in a computer. [00:29:30] Speaker 00: There's no reason to do it. [00:29:31] Speaker 00: To answer the unanswered question, I suppose, is if you have a computer, you've already got client server capability. [00:29:38] Speaker 00: You can already send a resource locator request to a server and get back an answer and turn it into a graphical user interface. [00:29:45] Speaker 00: Computers did all of that in 1995. [00:29:47] Speaker 00: The only thing that was inventive here was taking that capability and smooshing it down into a tiny little piece of software so that it could run on the tiny little bit of processing and memory capability on a cell phone. [00:29:58] Speaker 00: That was necessarily a limited invention because the cost and size and processing power and power consumption and so forth of computers was coming down. [00:30:06] Speaker 00: You could have seen that from before. [00:30:08] Speaker 00: And Mr. Rossman was very sophisticated on this. [00:30:10] Speaker 00: He had built intelligent communicators before this company. [00:30:13] Speaker 00: This was designed as a temporary workaround to a 1990s technological problem that has nothing to do with modern smartphones, which is how this pattern. [00:30:22] Speaker 00: What's the status of the re-exam? [00:30:24] Speaker 00: Your Honor, the Patent Office has declared the 037 patent or has rejected the remaining claims of the 037 patent. [00:30:32] Speaker 00: The applicant canceled two of them and the rest were rejected. [00:30:36] Speaker 00: The appeal to the PTAB is pending. [00:30:38] Speaker 00: I think briefing is not quite completed, but there's been no argument data decision with PTAB. [00:30:45] Speaker 04: Can you tell from the re-exam how the PTO interpreted the scope of these claims? [00:30:49] Speaker 00: There is no scope discussion. [00:30:51] Speaker 00: In fact, interestingly, [00:30:52] Speaker 00: The debate and the re-exam, the requester, Blackberry put in considerable amounts of prior art dealing with both computer modules and non-computer cell phones as prior art. [00:31:04] Speaker 00: The patent holder's principal response was to challenge the priority date and say that none of that was prior art, and so that's the basis on which the PTO decision went, and there is no construction from the PTO in that respect. [00:31:16] Speaker 02: Okay, Mr. Perry, let's let Mr. Stevenson have his rebuttal. [00:31:19] Speaker 02: Mr. Perry went over by a minute, so we have one minute for Mr. Stevenson's rebuttal time. [00:31:24] Speaker 02: Thank you. [00:31:25] Speaker 00: Thank you, Your Honor. [00:31:32] Speaker 03: My friend cited column nine of the specification around, column nine around line 18 as some of his strongest evidence for the disclaimer. [00:31:44] Speaker 03: And in fact, I think that passage actually supports and is one of the strongest passages in our favor. [00:31:51] Speaker 03: I direct the court's attention to around line 22 of column nine. [00:31:56] Speaker 03: where it says this invention allows for the first time a wide variety of two-way data communication devices, including but not limited to cellular phones, two-way pagers, and telephones to become open application platforms which in turn empowers software developers to deliver value-added applications and services to any two-way communication device which incorporates the principles of this invention. [00:32:22] Speaker 03: The importance is the client module [00:32:25] Speaker 03: frees application developers from the proprietary operating systems of phones and other mobile devices and essentially allows open application platforms. [00:32:36] Speaker 03: This is being predicted in 1995. [00:32:38] Speaker 02: So would you allege that the Simon that Mr. Perry referred to is not a two-way communication data, two-way data communication device? [00:32:45] Speaker 03: It is one. [00:32:46] Speaker 02: It is one. [00:32:47] Speaker 03: It is a two-way data communication device, yes. [00:32:48] Speaker 03: And if it runs the client module that practices any or all of the claims such as [00:32:53] Speaker 03: We haven't talked much about predictive text entry, update notifications, also caching of websites, caching of linked pages. [00:33:01] Speaker 03: If it does that, it would infringe, because I don't think there is a disclaimer. [00:33:06] Speaker 03: And there was also another statement made by my friend that, along the lines of this was a temporary workaround, it wasn't a temporary workaround. [00:33:15] Speaker 03: The crux of the invention, really, is what we just read, which is the ability to run a client [00:33:24] Speaker 03: module that turns your mobile device into a client on a network and allows the features that are claimed. [00:33:34] Speaker 03: There's no need for a workaround there because we've basically established through this invention an ecosystem of sorts of providing software and applications that can run on the client module without regard to [00:33:49] Speaker 02: I don't, Your Honor. [00:33:51] Speaker 03: If the panel has any further questions I'll yield. [00:33:55] Speaker 02: We'll take the case under submission.