[00:00:00] Speaker 00:
Her argument this morning is 14-1-8-1-2 Rembrandt, social media.

[00:00:05] Speaker 00:
This is Facebook.

[00:00:28] Speaker 00:
I think we're ready.

[00:00:29] Speaker 03:
May it please the Court.

[00:00:30] Speaker 03:
Your Honor, as we have several issues on appeal, I think that the panel can best understand the bulk of the appeal by understanding two key points.

[00:00:37] Speaker 03:
Number one is, what is the division of labor between the browser and the applet, the helper to the browser?

[00:00:44] Speaker 02:
Could I ask a procedural question?

[00:00:45] Speaker 02:
Sure.

[00:00:46] Speaker 02:
We have findings here, both of non-infringement and invalidity.

[00:00:52] Speaker 02:
If I understand correctly, the invalidity issues came up as a result

[00:00:58] Speaker 02:
a defense rather than a counterclaim.

[00:01:01] Speaker 02:
If we were to reject your position with respect to infringement, would that resolve the case?

[00:01:13] Speaker 03:
Such that you wouldn't have to reach the abilities.

[00:01:16] Speaker 03:
I think it could potentially.

[00:01:18] Speaker 03:
I'd obviously argue that there is infringement, but I don't think that you would have to necessarily.

[00:01:23] Speaker 03:
But I think that may be a better... I think my opponent may have a

[00:01:26] Speaker 03:
a stronger interest in the answer to that question.

[00:01:28] Speaker 02:
Well, I'm going to ask him.

[00:01:31] Speaker 00:
We have the authority then to determine whether or not.

[00:01:33] Speaker 00:
In an instance where there's an affirmative defense as opposed to a counterclaim... I think so.

[00:01:39] Speaker 00:
Is it your understanding that it would be our discretion as to whether or not we would entertain?

[00:01:43] Speaker 03:
I think there's not independent jurisdiction for the validity finding because there's not a counterclaim.

[00:01:49] Speaker 01:
What would be the forward-looking

[00:01:51] Speaker 01:
issue preclusive effect on your client of leaving unreviewed the invalidity judgment?

[00:02:01] Speaker 01:
I don't think there would be.

[00:02:04] Speaker 01:
There may be... Are you confident enough about that to say, to tell us not to decide the question?

[00:02:08] Speaker 02:
You want us to write an opinion that says

[00:02:10] Speaker 02:
we affirm on the grounds of infringement we don't reach the other thing.

[00:02:14] Speaker 03:
Well, I want you to write an opinion that says that.

[00:02:16] Speaker 02:
No, no, no.

[00:02:17] Speaker 02:
Yeah, yeah, I understand.

[00:02:18] Speaker 02:
Under this hypothetical, you'd want us to write an opinion that said we're not reaching the invalidity thing, which would solve the collateral stuff.

[00:02:25] Speaker 03:
I'd prefer that over an affirmance of the invalidity, of course.

[00:02:28] Speaker 03:
But as I stand here, I'm not real deep into the issue, because we didn't brief it.

[00:02:33] Speaker 03:
But I understand the concerns.

[00:02:35] Speaker 00:
So can we talk about the 315 issue, as long as we're sort of starting there?

[00:02:40] Speaker 00:
Sure.

[00:02:41] Speaker 00:
So it's your view, though, that we don't even assume, even if it were counter-claim, or even if some of us were precluded from reviewing that because it was decided by the IPR.

[00:02:51] Speaker 03:
I think that's right.

[00:02:52] Speaker 03:
And I think that a recent case of last week, MCM versus Hewlett-Packard, I think makes that stronger.

[00:03:00] Speaker 03:
I think it actually, there's probably two parts to the 315 issue.

[00:03:03] Speaker 03:
Number one, is there some sort of interference?

[00:03:07] Speaker 03:
Number one.

[00:03:07] Speaker 03:
And then part two is what does the

[00:03:09] Speaker 03:
the word estoppel mean?

[00:03:11] Speaker 03:
What's the practical effect of the estoppel?

[00:03:13] Speaker 00:
We're looking at the statutory estoppel now.

[00:03:14] Speaker 00:
We're not looking at other.

[00:03:16] Speaker 00:
Can I just ask you, where would one draw the line then?

[00:03:20] Speaker 00:
I mean, your friend is making the argument that it's not asserted, because we're done with the jury, we're up here on appeal, and it's not asserted.

[00:03:28] Speaker 00:
And your view is, no, no, no, no, no.

[00:03:30] Speaker 00:
I mean, let's assume we were rocket docket, just like ED Virginia, and we had already, by the time the IPR concludes, we've already 36 this case, affirm 36, including the validity determination.

[00:03:44] Speaker 00:
Unless we ask for a response, the proceeding just allows for you to come up and file a petition for rehearing, and then a cert petition.

[00:03:51] Speaker 00:
But at least in a petition for rehearing, they likely would not even respond.

[00:03:57] Speaker 00:
Would it be your view that that would not be too late?

[00:04:01] Speaker 03:
That's correct.

[00:04:01] Speaker 03:
And I think there's some guidance.

[00:04:04] Speaker 00:
So if we had decided it already, even if the mandate had not issued, then you would concede that this would trump anything done by the IPR.

[00:04:13] Speaker 03:
I think this court's law suggests, at least I realize this situation hasn't come up, but I think this court's law at least suggests that we're looking at Supreme Court finality before the litigation side is

[00:04:26] Speaker 00:
Oh, so you're saying enough that it wouldn't be, that would still be too soon.

[00:04:30] Speaker 00:
And the only way there would be finality would be once the time ran for cert.

[00:04:35] Speaker 03:
I think this court's case law suggests that, at least.

[00:04:38] Speaker 03:
Now, of course, we don't have that here.

[00:04:39] Speaker 03:
But I think that would be suggested by some of the cases by this court.

[00:04:44] Speaker 03:
I realize that they don't have to do with this particular type of statutory estoppel.

[00:04:48] Speaker 03:
But it suggests that the litigation is not final and unattackable until that.

[00:04:55] Speaker 03:
Congress put in place a timing mechanism for when this is triggered.

[00:04:59] Speaker 03:
I realize that my opponent argues that collateral estoppel has all of these precepts to it.

[00:05:04] Speaker 03:
We're not arguing that.

[00:05:05] Speaker 03:
We're saying Congress put in the trigger, and then we're looking at collateral estoppel for what does it mean to estop someone.

[00:05:13] Speaker 03:
Because we think, just like any law student knows the difference between claim preclusion and issue preclusion,

[00:05:19] Speaker 03:
any law student and probably two-thirds of Congress know what collateral estoppel is and that that's what Congress intended when they said estoppel and use the classic language that courts use for estoppel.

[00:05:30] Speaker 02:
Two-thirds of Congress knows what collateral estoppel is.

[00:05:32] Speaker 03:
Well, fair enough.

[00:05:36] Speaker 00:
But if we just agreed that we went forward and affirmed the finding here, would that wipe out... I mean, we've still got this other proceeding that will presumably be appealed to us.

[00:05:47] Speaker 00:
Does that, in essence, move that proceeding?

[00:05:49] Speaker 03:
No, it doesn't.

[00:05:50] Speaker 03:
That should come up and they would have a chance to ask for a reversal.

[00:05:55] Speaker 03:
What it means, though, is... No, no, no.

[00:05:57] Speaker 00:
I'm talking about if we affirm the judgment of invalidity in this case, then what happens to the IPR case?

[00:06:05] Speaker 00:
Is that effectively moving?

[00:06:07] Speaker 00:
I mean, we're not going to then decide the case.

[00:06:10] Speaker 00:
Having decided that the patent is invalid, we don't then decide whether the board was right.

[00:06:14] Speaker 03:
So we haven't talked about that, but I would expect there'd be either some agreement by the parties or motion practice in that appeal, similar to the motion that we filed here, although probably before the briefing, not after the briefing.

[00:06:25] Speaker 01:
The same claims are at issue, is that right?

[00:06:27] Speaker 03:
That's right.

[00:06:27] Speaker 03:
Well, there are broader claims at issue in the IPR because they challenged all those independent and intervening dependent claims on the way to the, they were going to, they had the challenge, what is it, 4, 20, and 26.

[00:06:43] Speaker 01:
But invalidity of the claims currently before us would or would not fully resolve the question of what they call over there unpatentability of all the claims at issue over there.

[00:06:56] Speaker 01:
If there are more claims at issue over there, then our ruling here would not, in fact, move that.

[00:07:01] Speaker 03:
I'd have to look at it, but on your question of what claims are, if the decision is that the decision here is preclusive, and on my feet, I don't want to admit that.

[00:07:10] Speaker 03:
But if the decision here is that the issue is preclusive, the claims here are for 20 and 26.

[00:07:18] Speaker 03:
There's a couple extra claims in the patent office, but they're broader than 20 and 26 because they're the intervening dependent claims.

[00:07:25] Speaker 00:
I think Congress recognized, obviously it showed some preference for stays, but they recognized certainly that not all district courts would be staying cases for very good reasons.

[00:07:41] Speaker 00:
Is this just aberrational because we've got such a rocket docket going here?

[00:07:44] Speaker 00:
I mean, is this

[00:07:46] Speaker 00:
Or is it your view that this could happen repeatedly?

[00:07:49] Speaker 00:
Or is it just a matter of the extraordinary timing in here?

[00:07:53] Speaker 03:
It could happen in any court with a fast docket.

[00:07:55] Speaker 03:
But it's not going to happen in a court probably with a slow docket.

[00:07:58] Speaker 03:
But that doesn't mean that, I wouldn't call it aberrational.

[00:08:01] Speaker 03:
I think it is something typical in a fast docket court.

[00:08:04] Speaker 03:
And there are reasons why things could get held up in the patent office.

[00:08:08] Speaker 03:
There's rehearing petitions and so on so that that could come after a trial.

[00:08:12] Speaker 03:
That they're not required to, you know, you've heard they're required to finish in a year.

[00:08:15] Speaker 00:
Can they ask for reconsideration on an IPR?

[00:08:17] Speaker 00:
You can.

[00:08:18] Speaker 00:
But they didn't hear.

[00:08:20] Speaker 03:
Right.

[00:08:20] Speaker 00:
So presumably if there had been reconsideration at the Patent Office, we might very well.

[00:08:25] Speaker 03:
That's my understanding.

[00:08:26] Speaker 03:
And I don't think the Patent Office treats that as part of their, you know, that window that they take very seriously about getting the IPR.

[00:08:33] Speaker 00:
I wasn't sure whether they could ask for reconsideration.

[00:08:35] Speaker 02:
This case would be unusual in one respect.

[00:08:38] Speaker 02:
And it seems to me that where there's district court litigation going on and an IPR request at the patent office, normally you would include the prior art that's before the district court as well, right?

[00:08:52] Speaker 02:
So it's just kind of unusual not to include the prior art that's before the district court.

[00:08:57] Speaker 03:
I would say normally what you would and should do is if you're going to file an IPR, you take your paper prior art to the patent office.

[00:09:05] Speaker 03:
You take your non-paper prior art to the trial.

[00:09:09] Speaker 03:
That is really what we believe Congress intended.

[00:09:13] Speaker 03:
They probably would like all the prior art to go to the patent office, but they can't as a practical matter because the patent office can't investigate on sale bars and that type of thing.

[00:09:21] Speaker 03:
But I think that the practical thing that Congress is trying to get here was you take everything.

[00:09:26] Speaker 03:
If you want to take an IPR, you take your paper stuff.

[00:09:29] Speaker 02:
So the answer to my question would be unusual.

[00:09:32] Speaker 02:
to initiate an IPR that was limited to part of the paper record.

[00:09:37] Speaker 02:
I think it would be a bad idea.

[00:09:39] Speaker 02:
Well, yes.

[00:09:40] Speaker 02:
Because you can't get a stock.

[00:09:41] Speaker 02:
But unusual for that reason.

[00:09:42] Speaker 03:
Yes, exactly.

[00:09:44] Speaker 03:
And I don't think anybody who is thinking this through would use the same art because of the problem that would come up from the estoppel.

[00:09:51] Speaker 03:
And I think people understand this estoppel as being something that could kick in at any time.

[00:09:55] Speaker 03:
and shouldn't kick in very quickly because of the one-year limit that the PTO has on resolving these matters, or 18 months if you include the petitions phase.

[00:10:06] Speaker 02:
So how about infringement?

[00:10:07] Speaker 03:
Infringement.

[00:10:08] Speaker 03:
Well, there's two aspects to infringement.

[00:10:10] Speaker 03:
Well, the main aspect is the word assemble, and what assemble means and how it's been construed.

[00:10:16] Speaker 03:
And in sum, the assembly requires you to put together the page definition, not the display page,

[00:10:25] Speaker 03:
not display the page, but to assemble so that you have a page definition.

[00:10:30] Speaker 02:
And that's, I think, where both the Jmol... But the browser is not the browser looking elsewhere to get the page definition in part.

[00:10:40] Speaker 03:
No.

[00:10:41] Speaker 03:
No?

[00:10:41] Speaker 03:
No.

[00:10:42] Speaker 03:
Because the browser cannot affect what is displayed.

[00:10:46] Speaker 03:
It gets a URL that tells it what it has to get to make the display.

[00:10:52] Speaker 03:
But that URL, whether it's a

[00:10:53] Speaker 03:
JPEG for an image or a CSS URL for Cascading Style Sheet.

[00:11:01] Speaker 03:
That is set.

[00:11:03] Speaker 03:
Once it gets that, it goes and gets what it's told to get and that's it.

[00:11:05] Speaker 03:
So it's a lot like if you think about blueprints and a specification for a construction project.

[00:11:12] Speaker 03:
The blueprints and the specification are the definition of that project.

[00:11:17] Speaker 03:
The physical manifestation of the project, the two by fours and so on, that's the actual

[00:11:23] Speaker 03:
manifested physical thing, but it's not the definition for the thing.

[00:11:27] Speaker 03:
So for example, if you cut off your project after blueprints and spec were finished, you'd still have a page definition, but you wouldn't have a building, just like they don't have a building page.

[00:11:38] Speaker 02:
I'm sorry, I'm not following this, because I thought that the Facebook app, or whatever it's called here, only got part of the way toward a complete page, and that it didn't

[00:11:53] Speaker 02:
include instructions that would produce a complete page that the browser had to go elsewhere to get the rest of the instructions?

[00:12:01] Speaker 03:
To get the displayed page, yes, but that's different than the page definition.

[00:12:05] Speaker 03:
So the page definition has a link to a picture, for example.

[00:12:10] Speaker 03:
So you toast to your friends, look, here's my dog.

[00:12:14] Speaker 03:
And your picture is stored somewhere on the internet at www.facebook.com backslash

[00:12:23] Speaker 03:
JudgeDight backslash dog.jpeg.

[00:12:26] Speaker 03:
That is handed to the browser, that link that tells it where to get the picture for display.

[00:12:34] Speaker 03:
But the browser makes no decision about what to get.

[00:12:36] Speaker 03:
It does exactly what it's told, just like if you give a construction worker a blueprint that says put the two by fours here, they put them there.

[00:12:45] Speaker 03:
There's no judgment by the browser.

[00:12:48] Speaker 03:
What it gets is for the display and parsing and rendering of the page.

[00:12:53] Speaker 03:
But the big pipe in their embodiment, and actually in our own patent's embodiment, passes the link to the browser, both in our patent and for Facebook, passes a link, and the browser goes and gets what the link points to.

[00:13:08] Speaker 03:
And that's not disputed.

[00:13:10] Speaker 03:
What they dispute is, well, your patent doesn't show that for style sheet, for cascading style sheets.

[00:13:15] Speaker 03:
But that's kind of irrelevant, because their whole premise of their case was that the browser can't get anything.

[00:13:21] Speaker 03:
And once our patent says, well, our patent, our browser, and our patent can get things, and Goldbeck, or Dr. Goldbeck, is claiming it.

[00:13:28] Speaker 02:
Is your suggestion that the BigPipe tells the browser where to get the rest of the information?

[00:13:33] Speaker 02:
Forward to the display, yes.

[00:13:35] Speaker 02:
What do you mean, forward to the display?

[00:13:37] Speaker 02:
Well, so I'm distinguishing it.

[00:13:39] Speaker 02:
What doesn't it get?

[00:13:42] Speaker 02:
What doesn't BigPipe tell the browser what to get?

[00:13:45] Speaker 03:
It tells the browser everything to make the page, OK?

[00:13:50] Speaker 03:
But it doesn't give it the bits that allow it to display the page.

[00:13:55] Speaker 03:
It points it.

[00:13:56] Speaker 03:
It specifies where the image, for example, is or where the cascading style sheets are.

[00:14:03] Speaker 03:
But it does not give it.

[00:14:05] Speaker 02:
Tells them where to get the content of the page, but not how to display it.

[00:14:08] Speaker 02:
Is that what you're saying?

[00:14:09] Speaker 03:
Yes.

[00:14:09] Speaker 03:
It doesn't do the display.

[00:14:10] Speaker 03:
It's a page definition.

[00:14:11] Speaker 03:
It's not the page itself.

[00:14:13] Speaker 03:
It's not the physical instantiation of the page.

[00:14:16] Speaker 03:
It's a definition of the page.

[00:14:17] Speaker 03:
And that's what the claim construction requires.

[00:14:19] Speaker 01:
But does the definition at the big pipe stage specify not just all the content that's going to be on the displayed page, but every aspect of how that page will look?

[00:14:32] Speaker 03:
It does, because it points to the style sheets, which are directed to what your question is now.

[00:14:37] Speaker 01:
So there's no aspect of page design that is left for the browser to select?

[00:14:44] Speaker 03:
No.

[00:14:45] Speaker 03:
And in fact, we do have

[00:14:47] Speaker 03:
testimony from Judge Goldbeck, which I think is undisputed on that point.

[00:14:54] Speaker 03:
I think it's Goldbeck testimony at 10705.

[00:15:05] Speaker 03:
And what she says there is that the browser cannot display anything that's not in the page definition it receives.

[00:15:16] Speaker 03:
It has bits that it goes and gets, right?

[00:15:18] Speaker 03:
The image.

[00:15:19] Speaker 01:
Explain the cascading sheet business.

[00:15:21] Speaker 03:
OK, so this cascading style sheet is if you use Word and you can set up styles in Word and say, you know, every time I have heading one, I want it to be bold and so on.

[00:15:31] Speaker 03:
That's kind of what cascading style sheets do for a web page.

[00:15:34] Speaker 03:
So you'd say instead of having to define every piece of content in the page and how it's going to look when it's displayed, a cascading style sheet kind of provides

[00:15:45] Speaker 03:
style sheet, just like in Word for that.

[00:15:48] Speaker 03:
But that style sheet is pointed to by the link that BigPipe gives to the browser.

[00:15:54] Speaker 03:
So it's just like an image.

[00:15:57] Speaker 03:
The browser follows that link, goes and gets the image, brings it back.

[00:16:00] Speaker 03:
Same thing here.

[00:16:01] Speaker 03:
Browser follows that link, goes and gets the style sheet, brings it back.

[00:16:05] Speaker 03:
So it's defined in what BigPipe gives them.

[00:16:09] Speaker 03:
And that's why it's a page definition.

[00:16:12] Speaker 03:
It's not the physical instantiated page.

[00:16:14] Speaker 02:
And this is really... Where's the testimony that says that you get the complete content of the page?

[00:16:22] Speaker 03:
Well, I think part of it's from Goldbeck saying at 7.05.

[00:16:26] Speaker 02:
OK, show us where on 1.07.05 she says that.

[00:16:31] Speaker 00:
Is that your expert or theirs?

[00:16:33] Speaker 00:
What's that?

[00:16:34] Speaker 00:
Is that your expert?

[00:16:34] Speaker 00:
Our expert.

[00:16:35] Speaker 03:
They didn't have an expert on this, if you remember.

[00:16:37] Speaker 03:
They withdrew their expert after the leading questions from the court.

[00:16:41] Speaker 03:
We'll get to that if we have time.

[00:16:47] Speaker 03:
At the bottom, lower left corner of 10705.

[00:16:50] Speaker 03:
Page 26.

[00:16:53] Speaker 03:
Yes.

[00:16:54] Speaker 03:
You look at the question at the last line, can the browser display anything that's not in the page definition?

[00:17:00] Speaker 03:
Answer, it cannot.

[00:17:05] Speaker 02:
And there is no... That's the sum and substance of it?

[00:17:08] Speaker 03:
Well, I think if you go through her direct, you'll see where she talks about the joining of the content and how those links are followed.

[00:17:14] Speaker 03:
But I thought directly to your point about, is there anything coming from anywhere else?

[00:17:18] Speaker 03:
The answer is no, because the browser can't go and get anything that BigPipe doesn't tell it to go and get.

[00:17:27] Speaker 02:
So some of the confusion here.

[00:17:30] Speaker 02:
The fact that the browser can't display

[00:17:35] Speaker 02:
Other things doesn't mean that in order to display the content that you don't have to use the browser to get additional information.

[00:17:47] Speaker 03:
I think the statement is the browser gets what it's told to get by BigPipe and nothing more.

[00:17:55] Speaker 02:
Well, that's not entirely clear.

[00:17:57] Speaker 03:
Well, I think they ask, can the browser display anything that's not in the page definition?

[00:18:05] Speaker 03:
So the page definition is what is coming from BigPipe over the browser.

[00:18:10] Speaker 03:
And the question is, can it display anything that it doesn't get from that page definition?

[00:18:14] Speaker 03:
And her answer is, no, it can't.

[00:18:18] Speaker 03:
So I think a lot of the confusion around here is that the claimed term is assembling a diary page.

[00:18:25] Speaker 01:
Can I just ask about that?

[00:18:27] Speaker 01:
Sure.

[00:18:27] Speaker 01:
I'm confused about the relationship between page definition and

[00:18:33] Speaker 01:
cohesive diary page putting aside some back and forth references between the two patents.

[00:18:43] Speaker 01:
Is there some difference between these?

[00:18:45] Speaker 01:
Or is there a dispute about whether there's a difference?

[00:18:47] Speaker 01:
Because while the page definition seems to say one thing, the cohesive diary page talks about assembling or putting all the content in the page designer fully integrated for display forming the cohesive diary page.

[00:19:03] Speaker 01:
by combining the content data with the page design.

[00:19:07] Speaker 01:
What's the relationship between these two different terms?

[00:19:13] Speaker 01:
Don't worry.

[00:19:13] Speaker 03:
I've been confused by the connection.

[00:19:17] Speaker 03:
You have to go to the claim constructions of the court to figure this out.

[00:19:20] Speaker 03:
And claim constructions for both patents point to the page definition.

[00:19:25] Speaker 03:
In the 316 patent, it's the construction of assembling that whole clause.

[00:19:29] Speaker 03:
And you were just reading the beginning of that claim construction.

[00:19:32] Speaker 03:
But the end of it was to generate a page definition.

[00:19:37] Speaker 03:
And so what you're doing in the assembly, when you look only at the claim, it says you're assembling a cohesive diary page.

[00:19:44] Speaker 03:
But when you look at the claim construction, you're generating a page definition.

[00:19:49] Speaker 03:
So what that does, when you say cohesive diary page, a web page is a somewhat vague term because you could be talking about the code.

[00:19:58] Speaker 03:
You'd be talking about what you see on the screen.

[00:20:01] Speaker 03:
And what the claim construction does is it resolves the ambiguity.

[00:20:03] Speaker 03:
Are you talking about the code, the HTML code that goes into it?

[00:20:07] Speaker 03:
Or are you talking about the thing you see on the screen?

[00:20:09] Speaker 03:
And when the court says page definition, it's saying this isn't the displayed page.

[00:20:15] Speaker 03:
This is the HTML code that defines what will be displayed.

[00:20:20] Speaker 03:
And that's where we went off track at the trial with Mr. Parker, because he was on the stand as a Facebook engineer and never read this patent.

[00:20:27] Speaker 03:
And he gets asked about assembling a cohesive diary page.

[00:20:33] Speaker 03:
No mention of page definition.

[00:20:35] Speaker 03:
So he's sitting there saying, well, yeah, the last thing to display the page is the browser.

[00:20:39] Speaker 03:
So yeah, the browser for Facebook assembles the cohesive diary page.

[00:20:43] Speaker 03:
He was never told, and in fact, we tried to tell him, but the judge wouldn't let us, that the definition for assembling a cohesive diary page involves assembling the page definition.

[00:20:55] Speaker 02:
Well, I mean, I don't think anybody's really disputing that the page itself doesn't come from BigPipe.

[00:21:01] Speaker 02:
It's the instructions that come from BigPipe.

[00:21:04] Speaker 02:
But the problem is that the instructions that come from BigPipe aren't sufficient to display the page, that you need something beyond that which the browser secures from someplace else.

[00:21:16] Speaker 02:
Sure.

[00:21:16] Speaker 03:
They're sufficient to define the page, but they do not display the page.

[00:21:20] Speaker 03:
And that's the distinction that...

[00:21:24] Speaker 02:
How do I know that that distinction is made in the claim construction?

[00:21:30] Speaker 03:
First of all, that they go with page definition.

[00:21:33] Speaker 03:
We have Goldbach who, because they withdrew their expert, and by the way, they did not withdraw their expert after Goldbach testified, right before lunch and just after Parker had testified, they said, we're calling our expert after lunch.

[00:21:47] Speaker 02:
We then have 30 minutes of argument.

[00:21:50] Speaker 02:
Help me with the claim construction, because it doesn't seem to me that it's obviously apparent that the claim construction doesn't require that the big type not only tell you what content to put on the page, but how to put it on the page.

[00:22:08] Speaker 02:
And you agree that it doesn't tell you how to put it on the page.

[00:22:14] Speaker 03:
How to display it, correct.

[00:22:16] Speaker 03:
The reason I made that distinction is because page again is... How to put it on the screen.

[00:22:20] Speaker 03:
How to put it on the screen, yes.

[00:22:22] Speaker 03:
Right.

[00:22:22] Speaker 02:
And so Goldbeck... How do I know that the claim construction doesn't cover what you agree that BigPipe doesn't do?

[00:22:31] Speaker 03:
I wouldn't say it doesn't cover it because, you know, we've got this thing flipped about what the browser is supposed to do.

[00:22:36] Speaker 03:
The claim is about what BigPipe is supposed to do.

[00:22:39] Speaker 03:
And so the question is whether this claim

[00:22:41] Speaker 03:
covers big pipe.

[00:22:42] Speaker 02:
We're not trying to narrow it down.

[00:22:44] Speaker 02:
You're not helping me.

[00:22:45] Speaker 02:
Sure.

[00:22:45] Speaker 02:
Let me try again.

[00:22:46] Speaker 02:
I mean, what you say is the claim construction here means just page content and not display mechanism.

[00:22:54] Speaker 02:
How do I know that?

[00:22:56] Speaker 03:
OK.

[00:22:56] Speaker 03:
So number one, you can look at the language of the claim and the claim construction itself.

[00:23:00] Speaker 03:
The construction that Judge Toronto read was for assembling the page

[00:23:06] Speaker 03:
Excuse me, assembling the cohesive diary page.

[00:23:08] Speaker 03:
And I'm in claim one of the 316, just as the example.

[00:23:12] Speaker 03:
It says, forming the cohesive diary page to be displayed by combining, at the time of display, the content data with the page design to generate a page definition.

[00:23:26] Speaker 03:
So the page definition is generated by this combination.

[00:23:30] Speaker 03:
And there's no dispute that the combination occurs by big pipe, that these two pieces come down

[00:23:36] Speaker 03:
the outline information and the content information and that BigPipe processes them for combination.

[00:23:44] Speaker 03:
And so the claim construction itself makes that clear.

[00:23:48] Speaker 03:
Now if we go further, if you look at the patent itself.

[00:23:53] Speaker 01:
The term content data is information that may be displayed to a user that is independent of the page design.

[00:23:59] Speaker 01:
That sounds

[00:24:01] Speaker 01:
And maybe this is maybe a concrete way.

[00:24:03] Speaker 01:
That sounds like the picture rather than the specification of where to find the picture.

[00:24:08] Speaker 01:
And the big pipe is not, at the time of display, combining the picture with the design.

[00:24:14] Speaker 03:
And I think that it's broader because of the term with the information in there.

[00:24:18] Speaker 03:
But I'll also point the court that the construction, I think, may be the best place to go for something that's more black and white.

[00:24:24] Speaker 03:
If you go to the 362 patent, and it's incorporated by reference in the 316.

[00:24:29] Speaker 03:
At the bottom of column 10, top of 11, this is the example of the patent itself working.

[00:24:40] Speaker 03:
And it says, well, the second sentence of the paragraph that spans column 10 to 11 in the 362 patent.

[00:24:51] Speaker 03:
So it's 8135.

[00:24:52] Speaker 03:
It says, otherwise,

[00:24:55] Speaker 03:
The section manager in step 1165, so the section manager is the thing in the patent that pulls these pieces together, generates page, in step one, generate means generates, page definitions for the section based on the template, the universal addresses, URLs, and the annotations, i.e.

[00:25:15] Speaker 03:
the results of the examinations performed by the module.

[00:25:18] Speaker 03:
Here's the key part.

[00:25:19] Speaker 03:
Step 1165 further includes the step of instructing the browser

[00:25:24] Speaker 03:
to generate web pages based on the page definitions, which includes downloading the objects identified by the universal addresses in the page definition.

[00:25:36] Speaker 03:
So the browser here in our patent is going and getting things based on links, URLs.

[00:25:44] Speaker 01:
I understand your point.

[00:25:45] Speaker 01:
This language makes it impossible to say that the page definition requires the actual picture.

[00:25:51] Speaker 03:
Unless you want to violate our earth, unless you want to go against the patent.

[00:25:55] Speaker 03:
Yes.

[00:25:56] Speaker 03:
And Goldbeck explained that.

[00:25:58] Speaker 02:
Did you make this argument in your blue brief?

[00:26:02] Speaker 03:
I believe we did.

[00:26:03] Speaker 03:
I don't know exactly where that would be in our blue brief.

[00:26:06] Speaker 03:
I can take a look.

[00:26:08] Speaker 03:
But I believe this patent, we do cite this passage and say that it's in the system.

[00:26:11] Speaker 02:
Well, when you get up to do your rebuttal, I'd like to know where in the blue brief you made this argument.

[00:26:16] Speaker 02:
Thank you.

[00:26:19] Speaker 00:
OK, we're way over time, and we'll restore four minutes of rebuttal.

[00:26:23] Speaker 00:
So why don't we add 10 minutes to Mr. Hunger's time, only if he needs it.

[00:26:31] Speaker 04:
Thank you, Your Honor.

[00:26:32] Speaker 04:
May it please the Court?

[00:26:34] Speaker 04:
Turning first to the non-infringement issue, we think the evidence is more than ample to provide substantial evidence in support of the jury's verdict of non-infringement.

[00:26:45] Speaker 04:
Counsel's argument is that the page definition is what Big Pipe sends to the browser.

[00:26:52] Speaker 04:
But of course, that's the question in dispute.

[00:26:54] Speaker 04:
And obviously, Facebook strongly disputes that, and the jury was entitled to find otherwise.

[00:27:02] Speaker 04:
And Counsel's argument overlooks the actual claim construction which Rembrandt stipulated to, and which they are not in a position to challenge, and which does not

[00:27:12] Speaker 04:
say what it would have to say in order for their arguments to be valid.

[00:27:16] Speaker 04:
The claim construction says that the page definition is information that completely defines the appearance of a page.

[00:27:28] Speaker 04:
It's undisputed that CSS, Cascading Style Sheets, for example, is information that defines the appearance of a page.

[00:27:38] Speaker 04:
Dr. Goldbeck, Rembrandt's

[00:27:40] Speaker 01:
I guess I don't understand the specifics, but if Big Pipe says, go get CSS number 1, 2, 3, 5, at that point, has it not completely defined whatever contribution to appearance Cascade Sheet 1, 2, 3, 5 will in fact make?

[00:28:06] Speaker 04:
No, Your Honor, it hasn't defined.

[00:28:08] Speaker 04:
I would say no, any more than if you asked me to define induced infringement and I respond by saying 35 USC

[00:28:17] Speaker 04:
271 B and a string side of f3rd sites that I haven't completely defined.

[00:28:23] Speaker 01:
So is there a little homunculus or something out in the land that the browser is collecting stuff from, who's making choices about what's in fact going to go on in Cascade Sheet 1-35?

[00:28:35] Speaker 04:
Well, BigPipe doesn't make choices, Your Honor.

[00:28:38] Speaker 04:
The testimony is clear.

[00:28:38] Speaker 04:
BigPipe is merely a password.

[00:28:40] Speaker 01:
Let me try to be specific.

[00:28:42] Speaker 01:
that there's nothing random, choice-based, un-algorithmic about the content of the style sheet.

[00:28:50] Speaker 01:
Is there?

[00:28:51] Speaker 04:
There's nothing.

[00:28:52] Speaker 01:
No.

[00:28:52] Speaker 01:
There's nothing.

[00:28:53] Speaker 01:
There's nothing.

[00:28:53] Speaker 01:
So if BigPipe says, get this one, it has fully specified everything that the thing that content sheet 1235 says.

[00:29:03] Speaker 04:
Well, to be clear, first of all, BigPipe, what the claims require is assembly, right?

[00:29:09] Speaker 04:
BigPipe doesn't do that.

[00:29:10] Speaker 01:
But you weren't talking about assembly.

[00:29:11] Speaker 04:
I just want to make sure that your question has, I think, an implicit premise in it that's not correct, right?

[00:29:18] Speaker 04:
The question is assembling the cohesive diary page by dynamically combining the content data and the page design.

[00:29:24] Speaker 04:
That's what claim one says of the 316 patent.

[00:29:29] Speaker 04:
big pipe isn't doing any of that.

[00:29:30] Speaker 04:
It doesn't do any assembly, it's just a pass through.

[00:29:33] Speaker 01:
It doesn't have the content data.

[00:29:35] Speaker 01:
This is why I'm confused about, it seems to me, here's a starting confusion.

[00:29:42] Speaker 01:
Your case is stronger on the other piece than it is on page definition and I'm trying to understand the relationship between these two things.

[00:29:50] Speaker 01:
The page definition, I'm having a real hard time understanding what it is

[00:29:55] Speaker 01:
that appears on the screen that isn't 100% determined by what BigPipe tells the client.

[00:30:04] Speaker 01:
On the other hand, there's this language about forming the page by combining the content data with the page design, which seems like it requires the actual content to be there, more than the blueprint.

[00:30:20] Speaker 04:
It requires both.

[00:30:21] Speaker 04:
Yes, the content data and the page design information has to be there.

[00:30:25] Speaker 04:
In order to assemble it, you have to have it.

[00:30:26] Speaker 04:
And indeed, Dr. Goldbeck admitted that.

[00:30:29] Speaker 04:
In order to assemble and combine the information, as the claim requires, you have to have the information, and the big pipe doesn't have it.

[00:30:37] Speaker 02:
I'm also having trouble understanding this.

[00:30:39] Speaker 02:
Are you saying that the actual

[00:30:41] Speaker 02:
content of the page is the result of the BigPipe instructions, but that the design of the page, the way it appears there, is something that the browser may get someplace else.

[00:30:55] Speaker 04:
Both are things that the browser must get someplace else.

[00:30:58] Speaker 04:
That is, all BigPipe do is passes through a chunk of HTML, then the browser takes that, parses it.

[00:31:04] Speaker 02:
So where is their testimony in here?

[00:31:07] Speaker 02:
that supports the notion that BigPipe does not provide all the page content.

[00:31:15] Speaker 04:
The content?

[00:31:16] Speaker 04:
Yeah.

[00:31:17] Speaker 04:
So first of all, with respect to what content data is, Dr. Goldbeck testified on 10717 that it includes things like photos, going to the earlier discussions, and text, and so forth.

[00:31:27] Speaker 04:
And also, separately and apart from that, on that same page,

[00:31:29] Speaker 04:
she testified that page design, the other half of the equation that needs to be combined, includes CSS.

[00:31:36] Speaker 04:
So CSS, photos, those are content, excuse me, design and content.

[00:31:41] Speaker 04:
And the page design doesn't come from BigPy?

[00:31:44] Speaker 04:
Correct.

[00:31:44] Speaker 04:
The CSS, the test... The browser goes directly to CSS.

[00:31:49] Speaker 04:
The browser has to go out to the server to download additional CSS.

[00:31:52] Speaker 01:
Okay, does BigPype specify the page design?

[00:31:55] Speaker 01:
Specify what CSS it wants?

[00:31:57] Speaker 04:
Well, again,

[00:31:59] Speaker 04:
BigPipe doesn't want anything.

[00:32:02] Speaker 04:
BigPipe doesn't even read what it is passing through.

[00:32:05] Speaker 04:
It's merely a conduit.

[00:32:06] Speaker 02:
But I think the answer to that was that it does not tell the browser what to get from CSS.

[00:32:13] Speaker 04:
What BigPipe does is pass through the HTML, which includes links to... A specified CSS?

[00:32:20] Speaker 04:
Well, I don't know what you mean by specify.

[00:32:21] Speaker 04:
It includes links to CSS that the server, that the Facebook server has placed in the code.

[00:32:27] Speaker 01:
And it doesn't leave it up to the browser to choose which style sheet to select.

[00:32:31] Speaker 04:
It's not up to BigPipe or the browser.

[00:32:33] Speaker 04:
It's up to the server.

[00:32:34] Speaker 04:
It's up to the Facebook's content.

[00:32:38] Speaker 01:
So Facebook's server is choosing

[00:32:41] Speaker 01:
because it thinks it wants italics instead of roman for this particular thing?

[00:32:47] Speaker 01:
Or is some direction being given to the server that holds the CSS, the style sheet, which style sheet to send back?

[00:32:59] Speaker 04:
Yes.

[00:33:00] Speaker 01:
Where is that information coming from?

[00:33:02] Speaker 04:
It's in the, as I understand it, there's a link in the HTML

[00:33:08] Speaker 04:
The browser takes that link.

[00:33:09] Speaker 01:
In the HTML that BigPipe has provided to the cloud.

[00:33:12] Speaker 04:
Well, it's actually more complicated than that.

[00:33:13] Speaker 04:
Because with CSS in particular, the record establishes that some of the CSS information is not in, not even the link is in the HTML.

[00:33:24] Speaker 04:
It's out on the server.

[00:33:25] Speaker 04:
So the browser takes the link, goes out to get the CSS.

[00:33:28] Speaker 01:
Right, it needs to fill out the address.

[00:33:30] Speaker 01:
Is that what you're talking about?

[00:33:32] Speaker 04:
No.

[00:33:32] Speaker 04:
I'm sorry?

[00:33:32] Speaker 01:
This isn't the URL.

[00:33:33] Speaker 04:
No, no, no.

[00:33:34] Speaker 04:
This is different.

[00:33:39] Speaker 04:
Just for your information, this is at page 10774 of the appendix.

[00:33:46] Speaker 04:
So CSS resources out on the server can contain links to additional resources.

[00:33:52] Speaker 04:
So then the browser, not the big pipe, goes out to the server, pulls down with CSS resources, and those resources, in turn, tell the browser to go someplace else and get additional CSS resources.

[00:34:04] Speaker 04:
That's all part of the process of

[00:34:06] Speaker 04:
Formulating the page definition if you will of defining the appearance of the page and it's not told to do that by big Well the instruction the second step of that process where the browser goes out to the server gets the CSS file Parses the CSS file follows the instructions in the CSS file to go someplace else to get additional CSS resources But I mean that's the browser is doing all of that

[00:34:34] Speaker 01:
Right, so if I order a collection of books from the library, I could care less if the local library needs to go and find volumes two through four at one of the affiliate libraries.

[00:34:50] Speaker 01:
I say I want these books.

[00:34:51] Speaker 01:
I have specified everything I'm going to get back, and everything else is just internal mechanics of fulfilling my order.

[00:34:59] Speaker 01:
In what way is what I just said different from what?

[00:35:02] Speaker 01:
BigPipe has applied to the client, which is then submitted to the browser for fulfillment of the order.

[00:35:14] Speaker 04:
Two responses.

[00:35:16] Speaker 04:
First of all, again, page definition is information that completely defines the appearance of a page.

[00:35:25] Speaker 04:
that BigPipe passes on does not completely define the appearance of the page, because we know from the broken page illustration on page seven of our brief, that's what the information that BigPipe sent, if rendered by the browser without the browser going elsewhere to do more things, that's what would be displayed.

[00:35:41] Speaker 04:
And it's not the page.

[00:35:42] Speaker 04:
It's not the cohesive diary page.

[00:35:43] Speaker 04:
Dr. Goldbeck admitted that the cohesive diary page is the pretty picture with all the content and all the styles that's on page eight of our brief that is what a Facebook page looks like.

[00:35:54] Speaker 04:
That's the cohesive diary page.

[00:35:55] Speaker 04:
That's what needs to be assembled.

[00:35:59] Speaker 04:
And that's not what BigPipe is assembling.

[00:36:00] Speaker 04:
Because what BigPipe sends out doesn't give you that.

[00:36:03] Speaker 04:
Only what the browser does after the fact, after it goes out, performs all these additional steps, could give you that.

[00:36:09] Speaker 04:
And Rembrandt stipulated to the construction of page definition.

[00:36:17] Speaker 04:
And we haven't even talked about, with respect to the 316 patent, the other

[00:36:21] Speaker 04:
areas in which their evidence falls short of establishing infringement.

[00:36:26] Speaker 04:
Namely, the fact that it has to be assembling a cohesive diary page, which is a page in which content and design are fully integrated for display.

[00:36:35] Speaker 01:
And clearly... Did you argue either here or below that there was some difference between the page definition requirement and the assembling cohesive diary page requirement?

[00:36:49] Speaker 01:
That is, that even if

[00:36:51] Speaker 04:
We argued both very explicitly and repeatedly that neither the page definition requirement nor the cohesive diary page fully integrated for display is satisfied.

[00:37:02] Speaker 04:
We also argued separate and apart from both of those two points that an additional claim limitation is not met, which is the requirement that the assembly occur at the time of display.

[00:37:15] Speaker 04:
And here, obviously, it's not occurring at the... If you assume for the sake of argument, which we disagree with, that BigPipe is doing assembly, it's not doing it at the time of display, because after BigPipe has done everything it does and has passed off as a conduit to the browser, the browser has to do all these additional steps before it can display.

[00:37:34] Speaker 04:
So what the browser is doing is at the time of display, not what BigPipe is doing, which is a separate and independent reason why this particular

[00:37:42] Speaker 04:
why the 316 patent is not invalidated.

[00:37:45] Speaker 01:
And then there's also the fact that the... Is it your view that these claim constructions simply make the passage at, what is it, the bottom of column 10, top of column 11 that we were reading at the end of Mr. Draxett's argument incorrect, or these supersede them and they just... It's an unembodied... I mean, excuse me, it's an unclaimed embodiment.

[00:38:12] Speaker 04:
And I would also note, it refers only to content.

[00:38:16] Speaker 04:
That specification, even in discussing that particular embodiment, makes very clear that the formatting information, the configuration information that controls the appearance, has to be downloaded by the applet.

[00:38:29] Speaker 04:
And I would direct the court's attention to the previous page of the appendix of the patent, column seven, on page 134.

[00:38:40] Speaker 04:
of the appendix in the middle of the page, line 32, it says the diary applet, that's according to them, big pipe, includes a section manager for retrieving the template, i.e.

[00:38:54] Speaker 04:
a presentation context.

[00:38:55] Speaker 04:
And presentation context is construed by the court to mean the same as page design.

[00:39:00] Speaker 04:
It's what defines the appearance of the page or what determines the appearance of the page.

[00:39:05] Speaker 04:
So the diary applet

[00:39:07] Speaker 04:
has a section manager for retrieving the template, i.e.

[00:39:10] Speaker 04:
a prescription presentation context corresponding to the template ID for a section.

[00:39:15] Speaker 04:
So the diary applet, allegedly BigPipe, is what's going out and retrieving the page design or the presentation context.

[00:39:24] Speaker 04:
But BigPipe, indiscriminately, doesn't do that.

[00:39:26] Speaker 04:
That's what the browser does in the Accused system.

[00:39:28] Speaker 04:
So again, even if you're going to reconstruct the claim construction by going to the

[00:39:37] Speaker 04:
to the specification, which we submit is improper and triply waived because they stipulated to the construction.

[00:39:43] Speaker 04:
They didn't object to the jury instructions to the jury.

[00:39:47] Speaker 04:
They refused the judge's invitation to ask for further construction on this very point.

[00:39:52] Speaker 04:
And they haven't appealed from the claim to construction.

[00:39:54] Speaker 04:
So all those are waivers.

[00:39:56] Speaker 04:
They have no ability to challenge the claim construction or ask for further clarification of the claim construction at this point.

[00:40:02] Speaker 04:
And therefore, they can't go into the specification to try and vary or modify the claim construction.

[00:40:07] Speaker 04:
And even if you did that, the specification itself in column seven shows that the applet has to be getting the formatting information, what determines the appearance of the page, and Big Pike doesn't do that.

[00:40:21] Speaker 01:
The presentation context is construed to be layout or style information that defines at least in part the visual appearance of a page independent of a particular, so that's not the complete design.

[00:40:33] Speaker 01:
Does your applet not

[00:40:36] Speaker 04:
go out and get at least the... BigPipe doesn't go out and get... BigPipe, again, it's just a pass-through.

[00:40:45] Speaker 04:
It just passes through the HTML to the browser.

[00:40:47] Speaker 04:
It doesn't go out separately and get any... It doesn't download any formatting information separately.

[00:40:52] Speaker 04:
Any downloading of additional formatting information is done by the browser.

[00:40:58] Speaker 01:
But it defines the way that the visual appearance of a page, at least in part,

[00:41:05] Speaker 04:
Well, right.

[00:41:07] Speaker 04:
But in order to assemble the cohesive diary page or in order to display the content object, you've got to have the configuration information.

[00:41:19] Speaker 01:
I'm trying to understand what you urge us to make of this column 7, line 32 material.

[00:41:26] Speaker 04:
The point of the column 7, line 32 material, Your Honor, is that it shows that, again, even if you

[00:41:34] Speaker 04:
ignore their waiver of any attempts to modify the claim construction and their arguments about trying to modify the claim construction based on the specification, which is far too late and is waived, what that information shows is that the embodiment that they're trying to argue about requires the applet to download the page design or the presentation.

[00:41:57] Speaker 01:
No, it doesn't.

[00:41:57] Speaker 01:
It says the presentation context, which is defined as in part defining the page design, not all of it.

[00:42:04] Speaker 04:
Yes, Your Honor, but that's the same as, I mean, my point is, presentation context and page design are the same.

[00:42:12] Speaker 04:
And what they have to do is, what the patent requires the applet to do is generate a page definition for the presentation of the object, that is, the content, the page definition being generated from the presentation context, and the AUA.

[00:42:26] Speaker 04:
And again, the page definition has to completely define the appearance of the page.

[00:42:30] Speaker 02:
So there's no, when you read all the... So whatever the specification

[00:42:34] Speaker 02:
says in this respect that judges objected to construction requires completion.

[00:42:40] Speaker 04:
Exactly.

[00:42:41] Speaker 04:
Exactly.

[00:42:41] Speaker 04:
Fully integrated for display and completely defined the appearance of the page.

[00:42:46] Speaker 04:
That is, information that completely defines the appearance of the page.

[00:42:49] Speaker 04:
The information that comes out of BigPipe does not completely define the appearance of the page because when you render only what comes out of BigPipe, you don't get the page.

[00:42:58] Speaker 04:
You don't get the pictures.

[00:42:58] Speaker 04:
You don't get the appearance.

[00:42:59] Speaker 04:
You don't get any of that.

[00:43:00] Speaker 04:
Everything has to be done afterwards in order to do that.

[00:43:04] Speaker 04:
They could have asked.

[00:43:06] Speaker 04:
They could have made these arguments to the judge and asked for a claim construction.

[00:43:09] Speaker 04:
And the judge then would have ruled on whether or not the claim should be construed to make specific what they are arguing.

[00:43:15] Speaker 04:
But they did.

[00:43:15] Speaker 04:
They waived all that.

[00:43:16] Speaker 04:
So they agreed.

[00:43:17] Speaker 04:
This can go to the jury under this claim construction.

[00:43:20] Speaker 04:
The jury was perfectly within its rights to conclude.

[00:43:23] Speaker 04:
Well, completely define the appearance of the page.

[00:43:25] Speaker 04:
It sure doesn't look like that to me, because the page isn't there.

[00:43:28] Speaker 04:
And what Big Pipe says isn't defining the page.

[00:43:31] Speaker 04:
To me, it's not a complete definition if you've got to go do a bunch of more research.

[00:43:35] Speaker 04:
And that's what.

[00:43:37] Speaker 00:
Before your time runs out, can we move back to where we started with your friend, which was the first question I think that Judge Dyke posed, which is that since validity was an affirmative defense in this case and not a counterclaim, why do we even need to go there assuming, hypothetically, that we were to affirm on infringer?

[00:43:55] Speaker 04:
Well, if the court were to affirm on infringer, I mean, obviously, Facebook would have an interest in also having affirmance on the issue of invalidity, but I guess if

[00:44:04] Speaker 04:
If Rembrandt is saying that in those circumstances, they would abandon their appeal on invalidity, then I'm not sure what we did.

[00:44:13] Speaker 01:
If we did not review the invalidity judgment, would that judgment have any forward-looking preclusive effect against Rembrandt?

[00:44:24] Speaker 04:
I don't know the answer to that, Your Honor.

[00:44:26] Speaker 02:
I suspect we would not.

[00:44:27] Speaker 02:
If we said we're affirming on infringement and not reaching invalidity, right?

[00:44:33] Speaker 04:
Well, I think it depends.

[00:44:35] Speaker 04:
Rembrandt, I would think, has an interest in challenging the invalidity of their patents.

[00:44:44] Speaker 04:
If they're now saying we're willing to withdraw that appeal,

[00:44:50] Speaker 00:
There's no final judgment.

[00:44:52] Speaker 00:
It moots it out.

[00:44:53] Speaker 00:
I mean, our final judgment would say we don't reach the issue.

[00:44:58] Speaker 04:
Again, I don't know.

[00:44:59] Speaker 04:
Obviously, there might be some dispute about that in subsequent proceedings.

[00:45:02] Speaker 02:
I don't know what the answer would be.

[00:45:03] Speaker 02:
I think it's pretty clear about it that if you have an appeal which affirms on ground A, it's not preclusive as to ground B, which it didn't reach.

[00:45:12] Speaker 04:
Well, again, as I stand here, I don't want to waive any arguments that Facebook may make in subsequent proceedings.

[00:45:20] Speaker 01:
Obviously, if the court does what the court is saying... Are you prepared to agree to a vacator of the invalidity judgment if we affirm on non-infringement?

[00:45:34] Speaker 04:
As I stand here today, I'm not in a position to do that.

[00:45:35] Speaker 04:
Because you think it just might make a difference?

[00:45:38] Speaker 04:
Well, it's, you know, we can't... First of all, there's the IPR proceeding.

[00:45:44] Speaker 04:
We can't rule out the possibility that Rembrandt might choose to try to assert

[00:45:49] Speaker 04:
claims in some future circumstance.

[00:45:53] Speaker 00:
So, yeah, I think... Well, sure, but in order to say, even if we kept the validity question here, then we're confronted with the interpretation of 315, which is a harder question to... And that's as to one of the patents, not the other.

[00:46:09] Speaker 01:
Correct.

[00:46:10] Speaker 01:
That doesn't affect us.

[00:46:11] Speaker 00:
Can I ask, is there a clear explanation in the record as to why you asserted

[00:46:15] Speaker 00:
four pieces of prior art in the IPR, I guess, and completely different prior art in the district court proceeding.

[00:46:23] Speaker 04:
There's none in the record, Your Honor.

[00:46:25] Speaker 04:
And the IPR, remember, this was in the Rocket Dock.

[00:46:29] Speaker 04:
The case was originally scheduled for trial after eight months, or 10 months, but less than a year.

[00:46:34] Speaker 04:
So Facebook didn't even file an IPR until the trial was taken off calendar, and there was an interlocutory appeal.

[00:46:41] Speaker 04:
And it wasn't clear how long things were going to take.

[00:46:43] Speaker 04:
And Facebook then filed the IPR.

[00:46:46] Speaker 04:
while the case in the district court was stayed, which was long after expert discovery.

[00:46:52] Speaker 00:
I thought there was no stay here.

[00:46:54] Speaker 04:
Only during dependency of the interlocutory appeal.

[00:46:57] Speaker 04:
Oh, OK.

[00:46:59] Speaker 04:
Yeah.

[00:46:59] Speaker 04:
And so it was only filed at that point, which was many months after.

[00:47:01] Speaker 00:
But that's not a real answer.

[00:47:03] Speaker 00:
We might not know, but that's not really a clear answer for me, at least, as to in terms of why they didn't assert the same prior court proceeding.

[00:47:11] Speaker 04:
Right.

[00:47:11] Speaker 04:
The record doesn't reflect.

[00:47:13] Speaker 04:
My point was only that.

[00:47:14] Speaker 04:
The IJAR was filed in February, whereas expert discovery closed in August, I believe, of the previous year.

[00:47:20] Speaker 04:
So it was six months or more later.

[00:47:22] Speaker 04:
So maybe, obviously, additional things could have been discovered.

[00:47:24] Speaker 00:
But here you had the jury trial before they instituted.

[00:47:26] Speaker 00:
I mean, within the first six months of filing, you had a jury.

[00:47:29] Speaker 00:
Correct.

[00:47:30] Speaker 04:
Because the interlocutory appeal was denied.

[00:47:32] Speaker 04:
The judge immediately set the trial date.

[00:47:35] Speaker 04:
And it's a rocket docket.

[00:47:36] Speaker 04:
Things were off and running.

[00:47:43] Speaker 04:
If the court has no further questions on non-infringement, if I still have time remaining, I'd like to spend a few moments on the Section 315E2 issue, only to say that we believe it's clear from the text of the statute, even leaving aside the issues of constitutional avoidance, that Congress did not purport to bar this court from affirming an invalidity verdict entered by

[00:48:12] Speaker 00:
And is that because of the assert or because of the 1338 site?

[00:48:17] Speaker 04:
Both of those and more, Your Honor.

[00:48:21] Speaker 04:
Facebook is not asserting invalidity.

[00:48:23] Speaker 04:
It successfully established invalidity in the district court.

[00:48:26] Speaker 04:
And it's simply defending a judgment.

[00:48:28] Speaker 04:
The statute talks about civil actions under 1338, not appeals under 1295, which obviously Congress could have done if it had intended to apply estoppel in cases already on appeal.

[00:48:42] Speaker 04:
And there's also the ITC point, Your Honor.

[00:48:45] Speaker 04:
Rembrandt's interpretation would lead to the absurd result that ITC determinations are given greater finality and greater respect than the final judgments of Article III district courts, because it's clear that in the context of ITC proceedings, estoppel arises only if the PTAP decision comes down while the case is before the ITC, not if it's pending in this court on review of the ITC determination.

[00:49:10] Speaker 04:
bizarre, we submit, for Congress to have adopted a statute that produces that strange result.

[00:49:17] Speaker 02:
We can argue that that strange result isn't the right result because it's strange.

[00:49:22] Speaker 02:
I'm sorry, Your Honor?

[00:49:23] Speaker 02:
You can argue that that strange result is not the right result from the very fact that it's strange.

[00:49:30] Speaker 02:
In other words, that in IPC proceedings, that going after the patent on appeal should also create a problem.

[00:49:42] Speaker 04:
I'm sorry, I'm not sure I follow.

[00:49:45] Speaker 02:
Why in heaven's name would Congress want to distinguish between situations in which someone is asserting invalidity at the trial level and asserting invalidity on appeal?

[00:49:58] Speaker 04:
Well, again, we don't think we are asserting invalidity on appeal.

[00:50:00] Speaker 04:
We're defending a final judgment of invalidity.

[00:50:03] Speaker 04:
And the reason why it makes sense to distinguish is because what Congress envisioned the IPR procedure to do

[00:50:09] Speaker 04:
is to provide an expeditious way for a resolution by the agency in a way that would obviate the need for costly and time-consuming and expensive litigation of that issue in district courts or in front of the ITC.

[00:50:25] Speaker 01:
Or maybe it's like what Judge Ellis said about the damages.

[00:50:28] Speaker 01:
You make your choices.

[00:50:29] Speaker 01:
You live with them.

[00:50:31] Speaker 04:
But again, that begs the question, Your Honor.

[00:50:34] Speaker 00:
Well, what happens if here?

[00:50:36] Speaker 00:
Let's assume you've drawn a very slow panel and lots of controversies on infringement.

[00:50:42] Speaker 00:
So there's a practical matter.

[00:50:43] Speaker 00:
You're not going to get your opinion for a year.

[00:50:46] Speaker 00:
And in the interim, since we haven't decided the case and we've done nothing, we've got a pending appeal from the IPR.

[00:50:52] Speaker 00:
And let's assume that's a better, quicker panel.

[00:50:56] Speaker 00:
And they decide the IPR and we're to affirm the IPR before we decide this case.

[00:51:01] Speaker 04:
Well, this court has already said that a determination in one proceeding that the claim of invalidity has not been established does not resolve the question whether, in a separate proceeding, this patent... So that wouldn't make any difference.

[00:51:16] Speaker 04:
Right.

[00:51:17] Speaker 04:
Because there's different evidence at stake.

[00:51:21] Speaker 04:
Indeed, in this particular circumstance, the PTAB adopted a different claim construction.

[00:51:27] Speaker 04:
In fact, they adopted a different

[00:51:28] Speaker 04:
They essentially adopted the district court's claim construction when they initiated.

[00:51:31] Speaker 04:
And then when they reached their decision, they changed their claim construction in a very material way and disagreed and narrowed the district, even though it's the PTAB that's supposed to use the broadest reasonable construction.

[00:51:42] Speaker 04:
They adopted a narrower claim construction for indelibility purposes than the district court had used based on the stipulation of Rembrandt.

[00:51:48] Speaker 04:
So it's a different claim construction.

[00:51:51] Speaker 04:
It's different prior art.

[00:51:52] Speaker 04:
So it would not resolve this appeal in that hypothetical in any event.

[00:51:57] Speaker 04:
If the court has no further questions.

[00:52:04] Speaker 03:
Thank you.

[00:52:05] Speaker 03:
I have your sites.

[00:52:06] Speaker 03:
Blue brief, 10 to 11.

[00:52:09] Speaker 03:
And speaking of formatting information, we got excited with ours here.

[00:52:18] Speaker 03:
We made the passage, underlined, bold, and italicized, that we're talking about.

[00:52:22] Speaker 03:
See, look, we block quote that passage from the patent.

[00:52:26] Speaker 03:
right at the top of page 11 of the blue brief.

[00:52:30] Speaker 00:
And that's in the statement of the case and facts.

[00:52:33] Speaker 00:
Do you have anything in the document?

[00:52:35] Speaker 03:
Yes.

[00:52:35] Speaker 03:
29.

[00:52:45] Speaker 03:
Middle of the page, just above the heading, the sentence that's about the fifth line, I think it says, and as previously described, referring, of course, back to pages 10 to 11.

[00:52:55] Speaker 03:
The 362 patent specification, which is incorporated by reference to the 316, expressly describes the browser downloading additional information identified by URLs and the page definitions when displaying the page.

[00:53:08] Speaker 03:
There are no examples in the spec in which a page definition does not reference external information, thus any understanding of the construction page definition, et cetera.

[00:53:17] Speaker 03:
Can't be right.

[00:53:19] Speaker 03:
On my friend's point, I think if you were to find that this claim construction was clear, you've done that once with

[00:53:24] Speaker 03:
Baking bread to 700 degrees.

[00:53:26] Speaker 03:
I think that's a narrow, rare situation.

[00:53:29] Speaker 03:
I think the discussion we've had has made clear that the claim construction is not clear.

[00:53:34] Speaker 03:
And if anything, it points in our direction by saying a page definition.

[00:53:38] Speaker 03:
But if you decide that the language of the claim construction is so clear that you have to exclude the passage in the patent we pointed you to, then you'd have to do that.

[00:53:48] Speaker 03:
Now, I want to point to the column 7 passage.

[00:53:51] Speaker 03:
That is not inconsistent with what we point to.

[00:53:54] Speaker 03:
All that says, in addition to the point you may judge, Toronto, all that says is that an accused product like BigPipe could form the page definition with the explicit material.

[00:54:09] Speaker 03:
But it doesn't prevent it from providing a link that then links to the ultimate material.

[00:54:15] Speaker 03:
So it's not inconsistent.

[00:54:17] Speaker 03:
You could do one or the other.

[00:54:18] Speaker 03:
You can either put all of that, how it's displayed content in there,

[00:54:24] Speaker 03:
Or you can provide the link as your page definition.

[00:54:26] Speaker 03:
So there's no link consistency.

[00:54:29] Speaker 03:
On the infringement point in a lot of the questioning, the thing you have to remember is the only evidence we have here is Dr. Goldbeck.

[00:54:36] Speaker 03:
Because after the colloquy with the district court, they pulled their expert.

[00:54:41] Speaker 03:
And so they have no affirmative testimony.

[00:54:43] Speaker 03:
What counsel here cited at 10774 is in the middle of this colloquy with the court,

[00:54:52] Speaker 03:
what Mr. Parker said.

[00:54:54] Speaker 03:
Now, here's the problem with Mr. Parker.

[00:54:56] Speaker 03:
He was never told, and what's not allowed to be told, what these claim constructions are.

[00:55:02] Speaker 03:
He had never heard the word page definition.

[00:55:05] Speaker 03:
And we tried to tell him that word to explain that the assembling step relates to page definitions, not final web pages.

[00:55:13] Speaker 03:
The court refused to let us do that repeatedly.

[00:55:18] Speaker 03:
In fact, some of the objections were adopted under a rationale that it was exceeding the direct.

[00:55:26] Speaker 03:
Of course, it was exceeding the direct because Facebook didn't ask the question.

[00:55:30] Speaker 03:
It was the district court that asked it.

[00:55:32] Speaker 03:
On that point, the question that was asked of the witness had the word assembly in it.

[00:55:38] Speaker 03:
And it basically said, so your browser does the assembly and Big Pipe doesn't.

[00:55:43] Speaker 03:
That is the ultimate issue in this case.

[00:55:45] Speaker 03:
That's the issue that's driven our entire day and most of our day here today.

[00:55:49] Speaker 03:
It's the issue that drove the trial.

[00:55:51] Speaker 03:
It was the ultimate issue asked as a leading question by the court to a witness who had never read the patent, didn't know the claim construction for assembly, and then followed up by the court with a statement of, well,

[00:56:07] Speaker 03:
I think if it's not clear, I think we can move on or something.

[00:56:10] Speaker 03:
To the effect of, I think I've asked enough questions here, move on.

[00:56:14] Speaker 03:
We tried to move on, or we tried to get a sidebar.

[00:56:17] Speaker 03:
The court said no.

[00:56:18] Speaker 03:
We tried to ask questions that used the claim construction, not the word assembly, but the use of the word page definition, which is key to our case.

[00:56:27] Speaker 03:
We were prevented from doing that.

[00:56:30] Speaker 03:
And we think that that, with everything we've said today about the Jamal issues, that they never put in any evidence on this point.

[00:56:36] Speaker 03:
but that the unfairness that was exhibited by the district court and how that led the jury to conclude that our case was not a good one on this key central point.

[00:56:48] Speaker 03:
The one point I will make, though, is if you want to see more evidence of Goldbach that I wasn't able to give you before, Judge, 10-686 and 10-690.

[00:57:00] Speaker 03:
And the kind of continuation of those is really where you see her talking the most about that.

[00:57:07] Speaker 03:
Any other questions?

[00:57:10] Speaker 00:
No.

[00:57:10] Speaker 00:
Thank you.

[00:57:11] Speaker 00:
Thank you.

[00:57:12] Speaker 00:
We thank Dr. Carvey's case is submitted.

[00:57:13] Speaker 00:
That concludes our proceedings for this morning.

[00:57:32] Speaker 05:
All rise.

[00:57:32] Speaker 05:
Y'all have reports to adjourn tomorrow morning at 10 AM.