[00:00:02] Speaker 00:
We have four cases this morning for argument.

[00:00:06] Speaker 00:
We've had two cases that have been submitted on the brief.

[00:00:09] Speaker 00:
We'll start with the first case, personalized media versus Roe v. Guides.

[00:00:15] Speaker 00:
Mr. Skollinger, I see you've reserved five minutes for rebuttal.

[00:00:19] Speaker 00:
Is that correct?

[00:00:20] Speaker 00:
Yes, your honor.

[00:00:21] Speaker 00:
Okay.

[00:00:22] Speaker 00:
You may proceed.

[00:00:27] Speaker 03:
May it please the court.

[00:00:28] Speaker 03:
This appeal concerns the ambiguous scope.

[00:00:31] Speaker 03:
of an exclusive license agreement covering the interactive program guide field.

[00:00:36] Speaker 03:
The parties and courts to consider the license have proposed now four possible readings of the critical provisions, but the district court nevertheless found the agreement unambiguous and read it in a manner that no party reads it on appeal.

[00:00:48] Speaker 03:
Roe v. asked that this court simply find the license ambiguous and remand for further proceedings.

[00:00:54] Speaker 03:
Now the first sentence of paragraph 1.3 states that the field covers applications and services for

[00:01:00] Speaker 03:
IPG applications, the primary purpose of which is to provide descriptive information relating to television or radio programming, and which may control consumer equipment that enables viewing, listening, recording, or storing of such programming.

[00:01:15] Speaker 03:
But the second sentence states that such IPG applications shall include, without limitation, tuning, flip, browse, parental control, recording, video on demand, and pay-per-view, among other listed items.

[00:01:29] Speaker 03:
So the central ambiguity concerns whether the items listed in the second sentence must meet the primary purpose test, that is, provide descriptive information, recited in the first sentence to be covered.

[00:01:41] Speaker 03:
Now, at least four possible readings have been proposed.

[00:01:44] Speaker 03:
The first is that the listed items are covered without any need to be tested against the provisions of the first sentence.

[00:01:51] Speaker 03:
So they're just entirely separate grants.

[00:01:53] Speaker 03:
And the district court in Georgia in prior litigation found this to be one reasonable reading, but not the only reasonable

[00:01:59] Speaker 00:
So if you have different readings of a particular clause in a contract, your argument is if you have more than one reading, then you have an ambiguity.

[00:02:11] Speaker 00:
Do those separate readings have to be reasonable to a certain degree?

[00:02:16] Speaker 03:
The rule is that the contract must be reasonably susceptible to multiple readings.

[00:02:22] Speaker 03:
So I think the answer to your question is found in the Phillips case in Delaware.

[00:02:28] Speaker 03:
And if you see there, what the court said was basically we've got multiple ways to read this thing, but neither of them really seem right.

[00:02:37] Speaker 03:
And both of them could sound like constructions that the parties would not have intended.

[00:02:43] Speaker 03:
So I think Phillips is the most on point here in terms of the two constructions that the Georgia District Court found.

[00:02:50] Speaker 03:
So the first was that they're just two completely separate grants.

[00:02:55] Speaker 03:
And that's, and that is saying that's the shall include means shall include.

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So when it says shall include tuning, it shall include tuning.

[00:03:02] Speaker 00:
I'm asking because it seems to me that every, every litigation involving a contract must by definition have, you know, there's two separate readings that are being alleged.

[00:03:13] Speaker 00:
That's right.

[00:03:15] Speaker 00:
So do those readings have to be reasonable to the court?

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Both of them.

[00:03:20] Speaker 00:
And therein lies the ambiguity.

[00:03:25] Speaker 03:
If you have one reasonable reading just based on the language alone, then I think that would be the right reading.

[00:03:32] Speaker 03:
If you have one reasonable reading versus one unreasonable reading, say.

[00:03:36] Speaker 03:
But if you've got no reasonable readings based on the language alone, then that's when Philip says, that's an ambiguity.

[00:03:42] Speaker 03:
So the question here, I mean, and I think maybe the question you're asking me is, is the district court's reading the only reasonable reading?

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And we know that's not true because

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PMC does not even read it that way on appeal.

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And what the district court held, this was the second reading.

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And I quote, the only items covered are those with the primary purpose of providing descriptive information.

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And that the list set forth in the second sentence is a subset of examples of the quote IPG applications generally referred to in the first sentence, which are covered if the primary purpose of the application is to provide descriptive information.

[00:04:23] Speaker 03:
So what the district court said is, I see this second sentence list, recording, tuning, pay-per-view.

[00:04:29] Speaker 03:
What the court said, unambiguously, the only way to read that reasonably is that those are examples.

[00:04:36] Speaker 03:
Each of those is an example of an IPG application referred to in the first sentence, which is covered only if it meets the primary purpose test.

[00:04:44] Speaker 03:
But here's what PMC says in the red brief.

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Many of the features listed in the second sentence would not satisfy the primary purpose requirement of the first sentence if viewed

[00:04:53] Speaker 03:
as individual or examples of IPG applications, parens, which they are not.

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So at the bottom line, what you have is both parties agree that the way the district court... Now, PMC is defending the judgment, but if you read the brief carefully, they do not defend the ruling.

[00:05:11] Speaker 03:
They do not defend the reading of the contract.

[00:05:13] Speaker 03:
And the problem with that reading, with the court's reading, and it's at least five times in the district court's opinion where he makes clear...

[00:05:23] Speaker 01:
the district court's reading, or I guess your understanding of the district court's reading, which items in sentence two would we X out?

[00:05:34] Speaker 01:
Tuning.

[00:05:35] Speaker 01:
Tuning.

[00:05:36] Speaker 03:
Flip.

[00:05:36] Speaker 03:
Recording.

[00:05:37] Speaker 03:
Flip.

[00:05:39] Speaker 03:
There's some of the others there's some question about, but certainly tuning, recording, and flip.

[00:05:44] Speaker 03:
I think there were suggestions of

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you know, video on demand or pay-per-view, although the EchoStar defendant said those actually did have a primary purpose.

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I think parental control, the primary purpose of parental control is parental control.

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Reminders, I mean, there are other things more gray.

[00:06:07] Speaker 03:
Help, I'm not sure of help.

[00:06:09] Speaker 03:
The primary purpose of help is to provide... There were a package of licenses here, right?

[00:06:13] Speaker 01:
That's right.

[00:06:14] Speaker 01:
There was this IPG license and then there's the VOD and PVR license.

[00:06:17] Speaker 01:
That's right.

[00:06:20] Speaker 01:
Should, would you regard those other two licenses, the non-exclusive licenses, as extrinsic evidence, or is that part of the, or should they be read as if it was all integrated together with the IPG?

[00:06:38] Speaker 03:
I believe the law is that you can read things executed as part of the same, on the same day as intrinsic evidence rather than extrinsic evidence.

[00:06:51] Speaker 01:
Why did Roby enter into those non-exclusive license agreements for VOD and PVR functionality if the IPG license covers everything that you say it covers?

[00:07:06] Speaker 03:
Two answers.

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One is that the testimony in the district court in Georgia was that they were taking a built-in suspenders approach.

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The second point is that under Roby's reading,

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which was effectively put together after we heard this extrinsic evidence in Georgia.

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They're not useless.

[00:07:30] Speaker 03:
I mean, Robie's reading is that the second sentence describes features that are covered when they are driven by an application.

[00:07:37] Speaker 03:
So in other words, you still have to have a connection.

[00:07:41] Speaker 03:
It has to be a nexus to a program guide under Robie's reading.

[00:07:46] Speaker 03:
But the point is, the question is whether the guide is directing these things, which is how TV Guide Interactive worked.

[00:07:52] Speaker 03:
So the non-exclusive licenses cover just the field period.

[00:07:58] Speaker 03:
There's no need for a nexus to a program guide at all for those non-exclusive licenses.

[00:08:03] Speaker 03:
Those are clearly broader than the exclusive licenses.

[00:08:05] Speaker 01:
But just to understand Roevey's business, it's all about interactive guides, right?

[00:08:12] Speaker 01:
That's right.

[00:08:12] Speaker 01:
OK.

[00:08:13] Speaker 01:
So that's what I'm trying to understand.

[00:08:16] Speaker 01:
Why would RoeVee want to pay for anything outside of the interactive guide field?

[00:08:22] Speaker 03:
Well, RoeVee is a big company with a lot of different.

[00:08:26] Speaker 03:
That was the TV guide interactive was the main function, was a main portion, but there are multiple companies under this umbrella.

[00:08:33] Speaker 03:
It's not just guides.

[00:08:35] Speaker 01:
Yes.

[00:08:37] Speaker 01:
There's a lot of confidential markings in these briefings.

[00:08:41] Speaker 01:
If we were to write an opinion here, I'm just trying to figure out, is

[00:08:45] Speaker 01:
Is everything really confidential?

[00:08:49] Speaker 01:
There are some of the quotes from some of the witnesses.

[00:08:54] Speaker 03:
So some of those quotes were filed in depositions in the Georgia litigation.

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So that's why I think they were filed under seal on that litigation.

[00:09:02] Speaker 03:
I'm not, I'm not sure those quotes really are, you know, it was.

[00:09:07] Speaker 03:
there's probably not confidential business information in some of those quotes.

[00:09:11] Speaker 03:
Most of the stuff that is excerpted is confidential business information relating to prior the drafts of the license and then the numbers.

[00:09:26] Speaker 03:
But I think if you'll find the, you'll find that in the reply, there is nothing confidential at all.

[00:09:31] Speaker 03:
So I think you can, the other answer is really,

[00:09:35] Speaker 03:
To find it ambiguous, you don't need to quote from the extrinsic evidence that was in there.

[00:09:43] Speaker 00:
You really just need- To find it ambiguous, do we need to resort to any extrinsic evidence?

[00:09:49] Speaker 00:
Because you're brief, and the arguments of the party seem to me to continuously be put in the cart before the horse.

[00:09:56] Speaker 00:
There's either an ambiguity or not.

[00:09:58] Speaker 00:
And if we find an ambiguity,

[00:10:01] Speaker 00:
Then we'd look at the intent of the parties through use of extrinsic evidence, correct?

[00:10:05] Speaker 00:
That's right.

[00:10:06] Speaker 00:
So you're almost out of time here.

[00:10:10] Speaker 00:
So tell me, what is it that's unreasonable about the district court's interpretation without resorting to extrinsic evidence?

[00:10:20] Speaker 03:
Yes.

[00:10:21] Speaker 03:
The district court's interpretation renders the second sentence mere surplusage.

[00:10:25] Speaker 03:
It adds nothing and its removal changes nothing.

[00:10:28] Speaker 03:
In other words, the second sentence shall include recording.

[00:10:31] Speaker 03:
But under the district court's interpretation, the only thing that matters is whether recording has a primary purpose of providing descriptive information.

[00:10:40] Speaker 03:
And not only that, it actually flips the second sentence on its head.

[00:10:44] Speaker 03:
As we were discussing certain items, tuning and recording, everyone agrees, and a reasonable third party would agree, that no one

[00:10:52] Speaker 03:
that those functions never have a primary purpose.

[00:10:56] Speaker 03:
Yeah, I just had a quick question.

[00:10:58] Speaker 01:
Because you didn't really ever get to what your opposing counsel says in the red brief.

[00:11:03] Speaker 01:
Let's assume for the moment that the district court and the red brief conception of what the district court said are the same.

[00:11:12] Speaker 01:
So what's wrong with their reading as expressed in the red brief about the idea of, well, this license covers

[00:11:19] Speaker 01:
the display of information about all the different interesting operations and features enumerated in sentence two.

[00:11:26] Speaker 03:
I think, well, PMC's brief position, if I understand it now, is that the second sentence list does not need to meet the primary purpose test, but they're only covered when they are used as part of a guide.

[00:11:44] Speaker 03:
The problem with that is that comes from Holtzman's testimony in the

[00:11:49] Speaker 03:
Georgia litigation as well.

[00:11:50] Speaker 03:
So that basically their reading and our reading are both really reflecting the extrinsic evidence that's in there.

[00:11:56] Speaker 03:
So I don't think either party proposes a reasonable reading that's based on the plain language of the contract.

[00:12:01] Speaker 01:
Well, I think it would go like this.

[00:12:04] Speaker 01:
The guide is providing you visual descriptive information about different features.

[00:12:10] Speaker 01:
Those features happen to be listed in sentence two.

[00:12:14] Speaker 01:
So now you have this interactive

[00:12:16] Speaker 01:
guide that you as the consumer can interact with and can see choices about tuning, flip, recording, storing information.

[00:12:27] Speaker 01:
What's wrong with that reading?

[00:12:30] Speaker 03:
Well, I don't think it's consistent with IPG applications shall include tuning, recording, video on demand.

[00:12:39] Speaker 03:
No one would think that shall include recording means that I

[00:12:44] Speaker 03:
can only, I'm not sure what you're saying, like I can see descriptive information about recording, but I can't.

[00:12:48] Speaker 01:
But don't you want to get to what you call sentence 1B?

[00:12:52] Speaker 01:
I mean, I thought, I'm trying to help you now.

[00:12:56] Speaker 03:
Yes.

[00:12:57] Speaker 01:
The whole point about controlling the equipment so that you can enable viewing, storing, et cetera.

[00:13:04] Speaker 03:
Absolutely.

[00:13:05] Speaker 03:
And that's Roevey's position is that the driven by goes to that.

[00:13:08] Speaker 03:
OK.

[00:13:10] Speaker 00:
Yeah.

[00:13:10] Speaker 00:
OK, I'll restore you back to your five minutes rebuttal.

[00:13:13] Speaker 00:
Thank you.

[00:13:16] Speaker 00:
Mr. C. Good morning.

[00:13:20] Speaker 02:
May it please the court.

[00:13:21] Speaker 02:
The district court got it right to be within the interactive program guide field and application or service must satisfy the primary purpose test.

[00:13:30] Speaker 02:
That is, it must be a program guide.

[00:13:33] Speaker 02:
And the second sentence doesn't expand the scope, is not a separate grant of scope.

[00:13:40] Speaker 02:
We have not changed our position.

[00:13:42] Speaker 02:
We agree with the district court's opinion.

[00:13:45] Speaker 02:
There has been

[00:13:46] Speaker 02:
no inconsistency in TMC's position here.

[00:13:48] Speaker 01:
Maybe there's no inconsistency with your position, what you presented below and what you present to us.

[00:13:55] Speaker 01:
But I don't quite see what your position matches up with exactly what the district court said.

[00:14:03] Speaker 01:
I mean, when I read the district court opinion, it really looks like to me that he is telling all of us that sentence two is relevant

[00:14:12] Speaker 01:
All those features listed are relevant in part and covered by the license only if those features satisfy the primary purpose test of sentence one.

[00:14:23] Speaker 02:
Yes, your honor.

[00:14:25] Speaker 02:
That is right.

[00:14:25] Speaker 02:
And that is the flip side of the conclusion, which is that that sentence lists features.

[00:14:31] Speaker 02:
The district court recognized that.

[00:14:33] Speaker 02:
And when they are part of a program guide, they're covered because the scope of the license is program guides.

[00:14:40] Speaker 02:
Now, if one were to talk about an application that is in that list as a district court held, if you're just looking at an application that is solely one of those items there, of course, it must satisfy the primary purpose test.

[00:14:52] Speaker 01:
What does that mean to you?

[00:14:54] Speaker 01:
What is that?

[00:14:55] Speaker 01:
I guess tuning doesn't, the function of tuning doesn't have anything to do with providing descriptive information.

[00:15:03] Speaker 02:
That's right.

[00:15:03] Speaker 01:
And so, as I understand the district court's opinion, district court essentially

[00:15:09] Speaker 01:
put a big X through the word tuning in sentence two because tuning does not have anything to do with providing descriptive information.

[00:15:18] Speaker 02:
An interactive program guide can provide and will provide all those features that are listed in that second sentence.

[00:15:27] Speaker 02:
So it is not putting an X through it.

[00:15:29] Speaker 02:
It is saying that the second sentence is explaining all these features that can be part of a program guide that do not contribute to that primary purpose.

[00:15:39] Speaker 02:
but when they're part of a program guide, they're still covered.

[00:15:43] Speaker 01:
That's the... I'm right now focusing and zeroing in on the language district court opinion has.

[00:15:50] Speaker 01:
Sure.

[00:15:51] Speaker 01:
And it talks about how those features in sentence two are covered if, or only if, those features satisfy sentence one.

[00:16:06] Speaker 01:
And so that makes me worried

[00:16:08] Speaker 01:
that the district court is saying that there are several features listed in sentence two that are superfluous.

[00:16:16] Speaker 01:
They're not superfluous, your honor.

[00:16:17] Speaker 01:
Well, walk me through the district court's language.

[00:16:21] Speaker 01:
You saw your opposing counsel quote one of them.

[00:16:23] Speaker 01:
There's twice in two different parts of the opinion where the district court's providing its conception of what the license covers and keeps using this conditional if.

[00:16:36] Speaker 01:
If, that's right.

[00:16:37] Speaker 01:
these individual features operations satisfy the primary purpose test of sentence one, then the feature in sentence two is covered by the license.

[00:16:51] Speaker 01:
Am I reading the district court's opinion incorrectly?

[00:16:55] Speaker 02:
I think so, Your Honor.

[00:16:56] Speaker 02:
The district court on A5 said the only items covered in the interactive program guide field are applications and services.

[00:17:05] Speaker 02:
the primary purpose of which is to provide descriptive information, that is, program guides.

[00:17:11] Speaker 02:
I'm talking about A6 and A9.

[00:17:13] Speaker 02:
Yes, Your Honor.

[00:17:14] Speaker 02:
Now, but to be clear, the district refers to the things in the second sentence as features on A5, multiple times.

[00:17:22] Speaker 02:
Now, if you are talking about these features independent of a program guide, so outside of a program guide, you're saying this feature is an application covered by the guide by itself,

[00:17:34] Speaker 02:
then of course the primary purpose test must apply.

[00:17:37] Speaker 02:
This language here in the second sentence is not providing extra scope.

[00:17:42] Speaker 02:
That is what the district court said.

[00:17:44] Speaker 02:
It is providing a list of features that are covered on the part of a program guide.

[00:17:49] Speaker 01:
But that's not the language that the district court used.

[00:17:52] Speaker 01:
I'll just go to A6 again.

[00:17:55] Speaker 01:
Quote, in the middle of the page, the list set forth in the second sentence is a subset of examples of the IPG application generally referred to in the first sentence

[00:18:04] Speaker 01:
which are covered if the primary purpose of the application is to provide descriptive information, right?

[00:18:11] Speaker 01:
You're very familiar with that sentence.

[00:18:13] Speaker 01:
That's the sentence I'm focused in on like a laser beam.

[00:18:17] Speaker 01:
Let's talk about that sentence.

[00:18:19] Speaker 01:
What does it mean to you when it says if the primary purpose of the application listed in the second sentence is to provide descriptive information?

[00:18:30] Speaker 01:
So many of these things like tuning doesn't do that.

[00:18:33] Speaker 01:
So what is the district court getting at?

[00:18:35] Speaker 01:
Tuning is not part of, the word tuning is, although it's in the license, it's really out of the license.

[00:18:43] Speaker 02:
It's not out of the license, it's covered when the primary purpose test is satisfied.

[00:18:49] Speaker 02:
If tuning is provided as part of something satisfying that test, that is, as part of a program guide, it is covered.

[00:18:56] Speaker 02:
Is tuning independently covered?

[00:18:58] Speaker 02:
Probably not, because it probably doesn't satisfy the primary purpose test.

[00:19:03] Speaker 02:
I think we're getting held up on a misconception that RoeVee has been pressing.

[00:19:09] Speaker 02:
Now this language, in a second sense, is not listing things that are separately covered in the field.

[00:19:16] Speaker 02:
It's listing features of programs.

[00:19:19] Speaker 00:
Such applications shall include.

[00:19:22] Speaker 00:
Yes, your honor.

[00:19:25] Speaker 02:
So let's take a slightly different example here.

[00:19:29] Speaker 02:
If we had a field whose definition was

[00:19:32] Speaker 02:
The cars field means motor vehicles, the primary purpose of which is to provide ground transport for people.

[00:19:40] Speaker 02:
Such motor vehicles shall include roof racks, bike racks, air conditioning, cup holders.

[00:19:47] Speaker 02:
Let's have a long list of things.

[00:19:48] Speaker 02:
The idea here with this language, it has the same purpose.

[00:19:54] Speaker 02:
The idea with such language is that, yes, there's all this stuff that doesn't contribute to that primary purpose.

[00:19:59] Speaker 02:
But if it's part of a motor vehicle,

[00:20:01] Speaker 02:
it would be covered within the CARS field if it satisfies that primary purpose test.

[00:20:06] Speaker 02:
The same thing applies here.

[00:20:08] Speaker 02:
Now, I do want to note for the court that the district court had two independent grounds for its interpretation.

[00:20:14] Speaker 02:
The first, of course, is that there was only one natural interpretation.

[00:20:18] Speaker 02:
None of the other interpretations that Roe v. offered were held water, and so there was no ambiguity.

[00:20:24] Speaker 02:
But there was an independent ground there too, which is that if the contract is ambiguous,

[00:20:30] Speaker 02:
Um, we can look to the extrinsic evidence and that's dispositive to the district court held at that extrinsic evidence.

[00:20:36] Speaker 01:
Can the district court do that on summary judgment?

[00:20:40] Speaker 02:
Yes, it was presented with the full record.

[00:20:41] Speaker 02:
We have to remember there was a trial, um, in the Georgia case, a fully developed record, um, about what the party's intent was.

[00:20:51] Speaker 02:
And that trial to put it mildly was disastrous for Roe v. The, uh, negotiators of both sides expressed

[00:21:00] Speaker 02:
the interpretation of that second sentence.

[00:21:03] Speaker 02:
And they were in complete agreement.

[00:21:06] Speaker 01:
Are you talking about the portions that were quoted in the district court's opinion?

[00:21:11] Speaker 02:
Yes, Your Honor.

[00:21:12] Speaker 02:
But the parties entered the full record that they considered relevant from that case.

[00:21:16] Speaker 02:
All the extrinsic evidence was there.

[00:21:19] Speaker 02:
And the district court pointed to the testimony of each side's negotiator.

[00:21:23] Speaker 02:
And here's the testimony of Rovia's negotiator.

[00:21:27] Speaker 02:
The second sentence,

[00:21:29] Speaker 02:
was intended to convey that there could be a very long list of features and functions that a guide could provide.

[00:21:34] Speaker 02:
And that guide would still be within the field of use as defined here.

[00:21:38] Speaker 02:
So as long as you had an application that passed the primary purpose test, and I'm gonna skip to the end here, there could be a considerable number of features and functions that the guide would provide.

[00:21:48] Speaker 02:
And this is simply an illustrative list.

[00:21:51] Speaker 01:
So why doesn't that comport with Rovi's interpretation in the sense that

[00:21:57] Speaker 01:
there's an interactive program guide and you can, through that interactive program guide, use a lot of different interesting features and functions.

[00:22:07] Speaker 01:
That's their interpretation and that's the interpretation that was rejected by the district court.

[00:22:12] Speaker 02:
No, that is not their interpretation and not the one that the district court rejected.

[00:22:15] Speaker 02:
Their interpretation is that everything in the second sentence is covered as part of the field scope.

[00:22:22] Speaker 02:
Now, I think they are backtracking away from the position they took in an absolute sense

[00:22:27] Speaker 02:
in the district court, they're backtracking and saying it has to be connected to the use of a guide.

[00:22:31] Speaker 02:
Now that is not only negated by the language of the contract, it's not supported.

[00:22:37] Speaker 02:
There's nothing in the field language that suggests things connected with a guide are covered by it.

[00:22:43] Speaker 02:
What the language covers is a guide.

[00:22:46] Speaker 01:
What about sentence 1B, what the other side refers to as 1B, when it talks about, okay, we're talking about

[00:22:54] Speaker 01:
applications and features, the primary purpose of which is to provide descriptive information.

[00:22:59] Speaker 01:
Fine, that's 1A.

[00:23:00] Speaker 01:
But then 1B goes on that says, and where the consumer can control equipment that enables viewing and storing and recording.

[00:23:13] Speaker 01:
I mean, now that's starting to sound a lot like not just being able to see

[00:23:20] Speaker 01:
interactive screens informing you about different features, but it's actually about controlling the equipment that enables those features.

[00:23:28] Speaker 02:
That's right.

[00:23:28] Speaker 02:
That's entirely covered.

[00:23:30] Speaker 02:
The guide is covered.

[00:23:31] Speaker 01:
It covers not only... But we're talking about slightly two different things because there's arguably a reading, and this is Robi's reading, is that it's not just looking at those little display screens on the TV.

[00:23:48] Speaker 01:
and clicking through interesting display screens, it's actually also triggering the functionality of the different choices that are available on those screens, whether it's recording something, whether it's tuning the TV to a different channel.

[00:24:04] Speaker 01:
That is something I think you're disputing, right?

[00:24:08] Speaker 01:
Let's look at the language.

[00:24:09] Speaker 01:
I just need an answer.

[00:24:11] Speaker 02:
Are you disputing that?

[00:24:12] Speaker 02:
We are not disputing it, and that's not actually their position.

[00:24:17] Speaker 02:
That's the thing.

[00:24:18] Speaker 02:
So the field language covers, allows for the control of equipment, of consumer equipment that does the viewing and recording and so on.

[00:24:26] Speaker 01:
That is covered, but the equipment itself.

[00:24:29] Speaker 01:
Let's step back for a second, because now I'm getting confused what the crux of the argument is.

[00:24:35] Speaker 01:
To me, what I just described is TV Guide Interactive.

[00:24:39] Speaker ?:
Yes.

[00:24:40] Speaker 01:
OK.

[00:24:41] Speaker 01:
So you're saying that's covered by the license?

[00:24:42] Speaker 01:
Yes.

[00:24:43] Speaker 01:
OK.

[00:24:44] Speaker 01:
So therefore, someone can use

[00:24:48] Speaker 01:
an interactive program guide under this license to not only access a whole bunch of different functions and operations listed in sentence two, but actually use those operations and functions.

[00:25:02] Speaker 02:
If I understand right, let me, so you can control external stuff.

[00:25:08] Speaker 02:
You can access external applications, but the contract is clear.

[00:25:12] Speaker 02:
The external functionality itself is not covered.

[00:25:15] Speaker 02:
The ability to access is.

[00:25:17] Speaker 02:
That is in the third sentence, very clear with drawing of any scope for the actual.

[00:25:21] Speaker 02:
What is the difference between those two things?

[00:25:24] Speaker 02:
Oh, well, so the program guide itself may have code that calls upon external functionality, that calls upon stuff that's in other programs, other hardware, that sort of thing.

[00:25:38] Speaker 02:
It can call upon that stuff.

[00:25:40] Speaker 02:
But that other stuff outside is not covered.

[00:25:43] Speaker 00:
Wait, why wouldn't it be covered?

[00:25:46] Speaker 00:
the language reads the primary purpose of, to provide descriptive information.

[00:25:52] Speaker 00:
It seems to me that whether you look at the list of items as either functions or applications, that they all provide descriptive information.

[00:26:03] Speaker 00:
But some do more than that.

[00:26:06] Speaker 00:
So why wouldn't they be covered if the limitation in the contract is for the primary purpose?

[00:26:14] Speaker 00:
It doesn't say the only purpose.

[00:26:16] Speaker 02:
Right, yeah, no, the idea is a program guide's primary purpose is of course to provide descriptive information.

[00:26:23] Speaker 02:
It can have a lot of other functionality.

[00:26:25] Speaker 00:
What about parental control or?

[00:26:27] Speaker 00:
Generate TV mail, TV chat.

[00:26:30] Speaker 02:
Right.

[00:26:30] Speaker 02:
All of that can be part of a guide and would be covered because it's still the primary purpose, even though there's all this other functionality, the primary purpose.

[00:26:37] Speaker 00:
But you're saying it's limited only right there to the descriptive information.

[00:26:40] Speaker 02:
Not at all.

[00:26:41] Speaker 02:
That's never been the position.

[00:26:43] Speaker 02:
The position is that the program guide is covered.

[00:26:45] Speaker 02:
No matter how full featured it is, it is covered.

[00:26:49] Speaker 02:
However, functionality outside of the guide is not covered.

[00:26:53] Speaker 00:
That is... That's the point I'm getting.

[00:26:54] Speaker 00:
Why not?

[00:26:56] Speaker 00:
The contract says primary purpose.

[00:26:58] Speaker 00:
It doesn't say the only purpose.

[00:27:01] Speaker 00:
And then it says, here's a list of what's covered.

[00:27:05] Speaker 00:
And the primary, one thing is that it's got to be the primary purpose is to provide descriptive information.

[00:27:10] Speaker 00:
That's not the only purpose.

[00:27:12] Speaker 02:
The list is not listing what is covered.

[00:27:14] Speaker 02:
It is not listing examples of things that are in the scope.

[00:27:18] Speaker 02:
What is in the scope is program guides.

[00:27:21] Speaker 02:
If the second sentence were intended to be a list of things that satisfy it, what wouldn't you expect to find in the interactive program guide?

[00:27:27] Speaker 00:
It says such IPG applications shall include, and then that's not a list that follows that?

[00:27:32] Speaker 00:
It's not a list of program guides.

[00:27:35] Speaker 02:
It's not a list of examples of what is covered in the application.

[00:27:38] Speaker 00:
It's a list of applications, program guide applications.

[00:27:42] Speaker 02:
No.

[00:27:43] Speaker 00:
It is a list of features.

[00:27:45] Speaker 00:
That's your argument now.

[00:27:48] Speaker 00:
That's always been the argument.

[00:27:48] Speaker 00:
That's why you really don't agree with the district court, do you?

[00:27:51] Speaker 00:
No, we do agree with the district court.

[00:27:54] Speaker 00:
The district court called these things... Well, I thought the district court interpreted this to be applications and not features.

[00:27:59] Speaker 02:
The point of the district court's opinion is that the second sentence doesn't provide extra scope.

[00:28:06] Speaker 02:
Everything has to satisfy the primary purpose test.

[00:28:08] Speaker 00:
If you have an application satisfying that, then you're... Do you find that the district court interpreted that to mean

[00:28:14] Speaker 00:
applications and not features?

[00:28:19] Speaker 00:
Sure.

[00:28:20] Speaker 02:
The district court multiple times on A5 talks about those as features.

[00:28:25] Speaker 02:
If you want to talk about them as applications, which you can, they are subject to the primary purpose test.

[00:28:31] Speaker 02:
Now, what will be covered is a full featured guide that has all those features and more.

[00:28:38] Speaker 02:
That would be covered because that guide is still a program guide.

[00:28:40] Speaker 02:
It satisfies the primary purpose test.

[00:28:44] Speaker 02:
is a piece of software that doesn't provide descriptive information that just provides video on demand outside of a program guide covered?

[00:28:51] Speaker 02:
Absolutely not.

[00:28:52] Speaker 00:
Would you say that all of these items on the list, pay-per-view, picture and guide functionality, user profile, would you say that the primary purpose of all of this is to provide some sort of descriptive information?

[00:29:06] Speaker 00:
No.

[00:29:06] Speaker 00:
But it does something else.

[00:29:08] Speaker 00:
It could do something else.

[00:29:09] Speaker 00:
It could be a secondary

[00:29:10] Speaker 00:
tertiary purpose, but the primary is to provide some sort of descriptive information.

[00:29:18] Speaker 02:
The stuff in that list is not providing descriptive information.

[00:29:23] Speaker 02:
Those are features that a guide can provide and still satisfy the primary purpose test because it's a guide.

[00:29:30] Speaker 02:
That is not just what I'm saying.

[00:29:31] Speaker 02:
That is what both sides negotiators said.

[00:29:35] Speaker 02:
So even if this court finds there's an ambiguity,

[00:29:39] Speaker 02:
It's already been decided there is no interpretation other than the district courts because the testimony below said that this is describing features of a guide.

[00:29:49] Speaker 02:
So the second sentence is not describing things that are covered outside of a guide.

[00:29:53] Speaker 02:
It's covering things that are within a guide.

[00:29:55] Speaker 01:
Yeah.

[00:29:59] Speaker 01:
Well, I mean, when I think about this case, it makes me think of an analogy.

[00:30:06] Speaker 01:
Like if I pick up my smartphone,

[00:30:08] Speaker 01:
And then I have a screen that allows me to dial a phone number.

[00:30:13] Speaker 01:
And then I can see the phone number that I dial.

[00:30:17] Speaker 01:
This license would cover that interactive screen guide.

[00:30:22] Speaker 01:
But as soon as I press send, then this license wouldn't cover the actual connection of a phone call.

[00:30:34] Speaker 02:
That's the idea.

[00:30:34] Speaker 01:
So all I have is a toy phone.

[00:30:37] Speaker 02:
No, Your Honor.

[00:30:38] Speaker 02:
What you have is a license to a company that creates program guides.

[00:30:42] Speaker 02:
It didn't create set-top.

[00:30:43] Speaker 02:
It's not about set-top boxes or functionality that that box may provide.

[00:30:47] Speaker 02:
They provide the program guide.

[00:30:49] Speaker 02:
And this license covers their piece of software, their program guide.

[00:30:53] Speaker 02:
Now, they also have non-exclusive licenses to video on demand and personal video recording because they were considering branching out and developing their own set-top boxes with such functionality.

[00:31:04] Speaker 02:
And they have that license.

[00:31:06] Speaker 01:
So the district court didn't

[00:31:07] Speaker 01:
address 1B, but what is your answer to 1B?

[00:31:12] Speaker 01:
Just assume for the moment I think 1B provides at first blush a reasonable argument for Roevey's position.

[00:31:21] Speaker 01:
Why is that wrong?

[00:31:24] Speaker 02:
It's wrong because it expressly distinguishes between controlling the outside equipment and giving a license to that equipment that is doing the recording and so on.

[00:31:34] Speaker 02:
And also the third sentence negates

[00:31:36] Speaker 02:
that interpretation as well.

[00:31:38] Speaker 02:
The third sentence withdraws.

[00:31:40] Speaker 02:
Well, it allows for the ability to access outside applications, but it withdraws completely any coverage of those outside applications.

[00:31:47] Speaker 00:
Okay, so you're well over your time.

[00:31:49] Speaker 00:
Oh, yes, sir.

[00:31:50] Speaker 00:
We'll stop there.

[00:31:50] Speaker 00:
Thank you very much.

[00:31:51] Speaker 00:
Thank you.

[00:31:58] Speaker 00:
Mr. Stullander, you have five minutes.

[00:32:00] Speaker 00:
Thank you.

[00:32:00] Speaker 03:
I'll try to be brief.

[00:32:04] Speaker 03:
I just wanted to address one thing about the summary judgment was not based on consideration of the extrinsic evidence, and it couldn't have been based on that.

[00:32:13] Speaker 03:
The court did have one paragraph where it cited a couple snippets of testimony, but under Delaware law, it's improper to construe the contract by reference to the extrinsic evidence when the court first determined it was unambiguous, which is what it held.

[00:32:31] Speaker 03:
And there is a lot of extrinsic evidence that the court did not account for in that.

[00:32:35] Speaker 03:
And I would just say, I mean, one classic, for these features to be included in the IPG field, they do not have to provide descriptive information related television and radio programming.

[00:32:45] Speaker 03:
Isn't that right?

[00:32:46] Speaker 03:
This is PMC's general counsel.

[00:32:47] Speaker 03:
Sure, most of them can't.

[00:32:49] Speaker 03:
So that's just indirect conflict at the court's ruling.

[00:32:52] Speaker 03:
I would also note that this idea about what is included or what isn't included, and maybe it includes actual an IPG or the court didn't read

[00:33:01] Speaker 03:
these features out of the license.

[00:33:04] Speaker 03:
I think all of that is, you can tell that's wrong because of what the court held on summary judgment.

[00:33:10] Speaker 03:
And what it said was, there is no accusation of any IPG functionality in this case.

[00:33:16] Speaker 03:
But there's no dispute that there was accused tuning, recording, video on demand, and pay-per-view.

[00:33:22] Speaker 03:
And there was a program guide involved.

[00:33:25] Speaker 03:
But the court didn't ask.

[00:33:26] Speaker 01:
But again, what PMC is arguing is that there's

[00:33:32] Speaker 01:
the remote control interactive program guide, and then there's the set-top box.

[00:33:38] Speaker 01:
And then everything you're trying to cover goes beyond just the remote control interacting with the screen and the interactive program guide.

[00:33:47] Speaker 01:
You're also trying to get into all the technology that's in the set-top box.

[00:33:52] Speaker 03:
I think the answer is that we are trying to get into the technology involved with a full-fledged robust program guide end-to-end.

[00:34:01] Speaker 03:
And that's

[00:34:01] Speaker 03:
that evidence is undisputed that that's what the parties intended.

[00:34:05] Speaker 03:
And there's no dispute that that's how TV Guide Interactive worked, as PMC says in its brief, that when the TV Guide Interactive was loaded, it didn't record.

[00:34:15] Speaker 03:
It directed the set-top box to record.

[00:34:17] Speaker 03:
So it really makes no sense to think that the parties intended somehow that you could control recording, but you couldn't use recording.

[00:34:27] Speaker 03:
Is there no further questions?

[00:34:29] Speaker 03:
No.

[00:34:29] Speaker 03:
Thank you very much.

[00:34:30] Speaker 03:
Thank you.