[00:00:05] Speaker 04: Please proceed. [00:00:06] Speaker 04: Tell me how to say your last name. [00:00:07] Speaker 04: I'm not going to mutilate it. [00:00:09] Speaker 01: For Hogan. [00:00:09] Speaker 04: For Hogan. [00:00:10] Speaker 04: That's actually how I would have said it. [00:00:11] Speaker 04: Wow. [00:00:12] Speaker 04: I should have taken the stab. [00:00:13] Speaker 04: Okay. [00:00:15] Speaker 04: Please proceed. [00:00:16] Speaker 01: Thank you, Your Honor. [00:00:16] Speaker 01: May it please the Court. [00:00:18] Speaker 01: There are many issues that we have briefed. [00:00:20] Speaker 01: I'd like to start by focusing on the simplest issue, and that is there is a complete absence of proof tying Google to the last element of claim one, the sole independent claim asserted here. [00:00:35] Speaker 02: If you win on plane one, what happens to, say, damages? [00:00:39] Speaker 01: It goes away. [00:00:41] Speaker 01: So damages aren't relevant. [00:00:45] Speaker 01: We briefed this under the joint infringement doctrine, Your Honors, but I think it's really helpful to understand the background here. [00:00:52] Speaker 01: When we were taking discovery, we learned that this step, notifying instantaneous notification [00:01:02] Speaker 01: to the remote device that the pre-processed data had been received. [00:01:06] Speaker 01: We ascertained through discovery that Simple Air was alleging that the transceivers in the accused devices were the entities which Simple Air alleged was providing satisfying this element in the software running on those transceivers. [00:01:29] Speaker 01: It's undisputed that Google has nothing to do with transceivers. [00:01:33] Speaker 01: It doesn't make transceivers. [00:01:35] Speaker 01: It didn't select the transceivers. [00:01:38] Speaker 01: And it doesn't make the code in the transceivers. [00:01:42] Speaker 01: And so we moved for summary judgment before trial, Your Honors, on this element. [00:01:49] Speaker 01: And we said, we don't have anything to do with it, and they can't prove joint infringement. [00:01:54] Speaker 01: And in response to that, Your Honors, [00:01:56] Speaker 01: They said, and I quote, and this is at A10602, quote, as for the instantaneously notifying step, simple error does not assert any joint infringement theory. [00:02:10] Speaker 01: It represented that to the court. [00:02:12] Speaker 01: Then we proceeded to trial. [00:02:13] Speaker 01: Our motion was denied and simple error did not present any theory of joint infringement to the jury. [00:02:22] Speaker 01: Uh, they did what they said they were going to do in discovery. [00:02:25] Speaker 01: And so, for example, their expert testified, quote, so you agree that the receiver notifies the CPU, right? [00:02:34] Speaker 01: Yes. [00:02:35] Speaker 01: That's at A2271. [00:02:38] Speaker 01: Their expert also agreed that the CPU, quote, it has to notify the CPU that the data is there. [00:02:47] Speaker 01: That's at A2267. [00:02:50] Speaker 01: And then finally, their expert admitted [00:02:53] Speaker 01: that the client software operating on these phones, the Android operating system, has nothing to do with that notification step. [00:03:04] Speaker 01: That's operating system software, and I can provide you that quote as well if you'd like. [00:03:11] Speaker 04: Why don't you move on to your online, offline argument? [00:03:14] Speaker 01: Thank you, Your Honor. [00:03:17] Speaker 01: So our position is that, well, let me back up. [00:03:23] Speaker 01: The district court addressed our data channel indefinite, this argument, without guidance from the nautilus. [00:03:30] Speaker 03: You applied that insolidably ambiguous test. [00:03:33] Speaker 01: Correct. [00:03:34] Speaker 01: That's correct. [00:03:37] Speaker 03: We have guidance on that. [00:03:38] Speaker 01: We have guidance now, your honors. [00:03:41] Speaker 01: And so here, what we have is a series of continuations. [00:03:51] Speaker 01: You have the original patent. [00:03:52] Speaker 01: This is really a poster child for Nautilus. [00:03:55] Speaker 01: You have the parent patent, the 433 patent. [00:03:58] Speaker 01: All that patent said. [00:03:59] Speaker 04: But this isn't your online, offline argument, which is the one that I asked you to turn to. [00:04:03] Speaker 01: The claim construction argument? [00:04:05] Speaker 01: Yes. [00:04:06] Speaker 01: OK. [00:04:06] Speaker 01: I will, Your Honor. [00:04:07] Speaker 01: Thank you. [00:04:08] Speaker 01: We had proposed to the court, Your Honor, that the construction for this phrase must distinguish between the data channel [00:04:22] Speaker 01: and the receiver, primarily a claim-based argument. [00:04:25] Speaker 01: So if you look at the last element, claim one, it says that the device must receive notifications through the receiver even when offline from the data channel. [00:04:41] Speaker 01: It says more than that, but it says that. [00:04:44] Speaker 01: Well, that means the receiver is different from the data channel, logically. [00:04:48] Speaker 01: It has to be. [00:04:49] Speaker 02: And of course- So at this point, data channel [00:04:52] Speaker 02: is in reference, what we're calling data channels right now, is that the data field that's noted in the specifications? [00:05:01] Speaker 01: Well, that's the problem, your honor. [00:05:03] Speaker 01: This phrase is added eight years later after the application. [00:05:07] Speaker 01: The original phrase was just online or offline, period, full stop. [00:05:12] Speaker 01: And the specification only discloses that. [00:05:14] Speaker 01: You're either online or you're offline. [00:05:16] Speaker 01: It's not talking about data channels. [00:05:18] Speaker 01: It's not talking about online or offline from data channels. [00:05:21] Speaker 01: So we don't know. [00:05:22] Speaker 01: But the way that the court construed it was to remove the distinction between the receiver and the data channel, which is the very core of the alleged innovation of this patent, was that you had two physical pipes. [00:05:36] Speaker 01: If your one pipe is, and I'm using pipes to refer to wireless or wired connections, physical connections, you have two physical connections. [00:05:46] Speaker 01: And if one of them is offline, you can still get notifications through the other. [00:05:50] Speaker 01: That's the invention. [00:05:51] Speaker 01: And what the court did was it raced that invention and said, you could have one pipe and data channels referring to some sort of law. [00:06:01] Speaker 01: He didn't define data channels recursive in the construction. [00:06:04] Speaker 01: He just says data channel, but it's very clear. [00:06:07] Speaker 01: And he made very clear and it was clear through the trial that he meant one pie. [00:06:12] Speaker 01: You could have one pipe, which is all there is here is the receiver, the transceiver and the bones. [00:06:18] Speaker 01: And he, and the use of data channel was like a logical session instead of physical pipe. [00:06:25] Speaker 01: There is nothing in the specification that describes that. [00:06:29] Speaker 01: And if you look at, for example, this is a string site, decided by simple error, trying to show where that is. [00:06:37] Speaker 01: Every place they site is pointing to something other than there's one place that might be relevant, but every other place is referring to other aspects of the technology here. [00:06:47] Speaker 01: So they cite the data feeds. [00:06:49] Speaker 01: Well, data feeds come from the information source to the central broadcast server, have nothing to do with the step we're talking about. [00:06:56] Speaker 01: They cite registries and subscriptions to receive broadcasts. [00:07:01] Speaker 01: That has nothing to do with it. [00:07:03] Speaker 01: They cite at lines 28 to 31 to the viewer software with logical information categories. [00:07:09] Speaker 01: Again, nothing to do with this element. [00:07:12] Speaker 01: The only thing they cite that has anything to do with this [00:07:16] Speaker 01: is at column 31, 25 through 31, which refers to, quote, very short notification-centric messages such as news headlines, dot, dot, dot, are transmitted to the computer, which can then make a, quote, connection 24, that's that line 24 in the figure, can make a connection back to the source 12 to obtain more detailed information. [00:07:42] Speaker 01: That talks about the physical pipe [00:07:44] Speaker 01: That's one of the two pipes. [00:07:48] Speaker 01: But it does not talk about a data channel. [00:07:51] Speaker 01: It doesn't talk about online or offline from a data channel. [00:07:54] Speaker 01: None of that is talked about. [00:07:56] Speaker 03: Let me ask you this. [00:07:57] Speaker 03: Even if we agree with your argument, if the district court clearly erred in its application of the standard of indefiniteness, both in its initial claim construction and then in its denial of your motions, [00:08:14] Speaker 03: Why shouldn't we just send it back to the district court and say, do over? [00:08:19] Speaker 01: Well, because this is a question of law. [00:08:21] Speaker 04: One is that they already did it over. [00:08:23] Speaker 04: Same exact judge had the same exact patent, same exact term post nautilus in another case, and he already said it's not indefinite there too, right? [00:08:29] Speaker 04: So why can't we just read that opinion? [00:08:31] Speaker 04: Because it's the same term and the same patent and the same claim. [00:08:33] Speaker 04: Absolutely. [00:08:34] Speaker 04: And the same judge even. [00:08:35] Speaker 01: Absolutely. [00:08:35] Speaker 04: But we actually don't we already know exactly what he would say about this term post nautilus? [00:08:39] Speaker 01: I would submit yes, Your Honor. [00:08:45] Speaker 01: If there's no further questions on data channel. [00:08:47] Speaker 04: No, I wanted you to focus on online, offline, but I still have trouble getting you there. [00:08:52] Speaker 01: Oh, I'm sorry. [00:08:54] Speaker 01: What I'm saying is it doesn't show us, the spec doesn't show us what it means to be online or offline from a data channel. [00:09:00] Speaker 04: I guess I think it does. [00:09:02] Speaker 04: And the way I think it does, you still win by the way, so you're not going to lose your argument. [00:09:06] Speaker 04: But the way I think it does is, I think that we don't [00:09:10] Speaker 04: Like you don't construe an individual word. [00:09:12] Speaker 04: A lot of times that is our job. [00:09:14] Speaker 04: We're all, everybody's focused on an individual word and individual claim. [00:09:18] Speaker 04: But really as sort of an old-fashioned patent lawyer, you look at the elements. [00:09:21] Speaker 04: And what the element here is notification, said device, a receipt, a pre-processed data, whether computing devices are online or offline from a data channel associated with each device. [00:09:34] Speaker 04: So why wouldn't that [00:09:36] Speaker 04: construction of that phrase, as opposed to the word, just be, are you online or offline from the internet or some other... Absolutely. [00:09:46] Speaker 01: Absolutely. [00:09:47] Speaker 04: That's all the spec supports. [00:09:48] Speaker 04: Part of what drives me crazy about the indefiniteness argument here is it's so narrowly focused on this one word, which, yes, was added later, but I don't think if you focus on what the spec discloses over and over again, which is offline, i.e. [00:10:03] Speaker 04: from the internet, and then you read this, [00:10:06] Speaker 04: I don't think, I really have a hard time saying one of the field in the court would find it indefinite. [00:10:11] Speaker 04: They'd find it a heck of a lot narrower than Judge Gilstrap did, but they wouldn't find it indefinite. [00:10:16] Speaker 01: And part of what we're saying, and part of what we said to Judge Gilstrap was if you'd reject our construction, then it's indefinite. [00:10:23] Speaker 01: And we hear that we supposedly waived our indefiniteness arguments. [00:10:27] Speaker 01: Well, we made it the alternative, and we tried to get construction. [00:10:32] Speaker 04: I don't think it's probably a very good idea for us to start going the route of indefiniteness [00:10:36] Speaker 04: when there is a plausible claim construction that is possibly the most one, the one most consistent with the disclosure in the spec, it would not render it indefinite. [00:10:46] Speaker 04: It might arguably render term data channel in isolation a little bit superfluous because you might have been able to say the same thing without it, right? [00:10:56] Speaker 04: Just online or offline might have conveyed the same message. [00:11:00] Speaker 01: I agree 100%. [00:11:01] Speaker 04: But I don't know that sticking it in there changes how it ought to be. [00:11:04] Speaker 01: We're fine if we get the construction we want. [00:11:06] Speaker 01: There's no dispute that we don't have two pipes and you know that you wouldn't even need a remand if the correct construction is put in place. [00:11:14] Speaker 01: Thank you very much. [00:11:15] Speaker 02: Can you press very quickly the issue damages? [00:11:19] Speaker 02: I'm sorry? [00:11:19] Speaker 02: Damages. [00:11:20] Speaker 01: Yes, Your Honor. [00:11:22] Speaker 02: Is there a question? [00:11:22] Speaker 02: I'd like to hear your argument, especially with respect to how the court applied [00:11:27] Speaker 02: Let's say laser dynamics and the Microsoft Settlement. [00:11:30] Speaker 01: Okay. [00:11:30] Speaker 01: Absolutely, Your Honor. [00:11:31] Speaker 01: I'll be a little careful because the numbers are rendered confidential or claimed to be confidential by Microsoft. [00:11:40] Speaker 02: So first, you don't have to report to the numbers at all. [00:11:44] Speaker 01: Okay. [00:11:44] Speaker 01: Thank you very much, Your Honor. [00:11:46] Speaker 01: Let me get there. [00:11:47] Speaker 01: So this is, we believe that the Microsoft Settlement is a laser dynamic situation. [00:11:54] Speaker 01: Like the Laser Dynamics case, there are multiple other license agreements that weren't relied on by Mr. Mills, a simple air damages expert, in his opinion. [00:12:09] Speaker 01: Instead he chose a completely, well I'll withdraw the completely, he chose an agreement that was on the eve of trial, that was crafted with the [00:12:23] Speaker 01: competitor, Microsoft, who had no care about whether they allocated portions to the patent about to be tried or not. [00:12:34] Speaker 01: Their expert was drafting his expert supplemental report based on the Microsoft settlement while the Microsoft settlement was being negotiated. [00:12:43] Speaker 01: He submitted it two days after it was signed, and this is exactly like Laser Dynamics. [00:12:49] Speaker 01: We're on the eve of trial. [00:12:51] Speaker 01: Microsoft was facing imminent trial, and here's something that's really unusual. [00:12:58] Speaker 01: In all of their other litigation settlement agreements, there was no allocation, but in this settlement agreement, Microsoft agreed to allocate the vast majority of money, I can't say the numbers, to the 914 patent, even though there were 10 assets subject [00:13:20] Speaker 01: to the license agreement, as well as general language, it included a lot more. [00:13:25] Speaker 01: This was clearly... Do you have any evidence they were smiling when it's on? [00:13:30] Speaker 01: No, Your Honor. [00:13:31] Speaker 01: But this is clearly a laser dynamics type thing. [00:13:34] Speaker 01: It's not Rescue Net. [00:13:35] Speaker 01: It's not a bench trial, but importantly, Rescue Net had only one license agreement, and they didn't have anywhere else to go. [00:13:41] Speaker 02: If we were to... If we were to agree with the court with respect to [00:13:49] Speaker 02: this issue we're talking about, the use of the word. [00:13:53] Speaker 02: Or let's say if we were to reverse, wouldn't the other alternative theories of damages still provide some... That is a very interesting question, Your Honor, and I'm glad you asked that because I'd like to say something about that. [00:14:08] Speaker 01: There's been a trend, because of the development in this court on damages law, that damages experts now in East Texas are asserting many, many different theories [00:14:19] Speaker 01: And it's clear the reason they're doing that is because the defendant has to shoot down all of them and the plaintiff will take the position if there's one left standing, the jury could have relied on it and therefore the damages verdict still stands. [00:14:35] Speaker 01: This is a problem and I have a suggestion for the court on how to solve it, which is we should require in those instances a special verdict form that lists each of the theories [00:14:46] Speaker 01: and the jurors should be required to identify it. [00:14:49] Speaker 01: That would solve that problem, Your Honors. [00:14:51] Speaker 01: But I don't think we need to reach that today, or any damages issues today, because it's very clear on the merits. [00:14:58] Speaker 04: Okay, Council, we're way behind. [00:15:00] Speaker 04: Okay. [00:15:00] Speaker 04: You're almost at the end of all your time. [00:15:02] Speaker 04: I'll restore some of our rebuttal time. [00:15:05] Speaker 04: Thank you, Your Honor. [00:15:07] Speaker 04: Mr. Dovel? [00:15:08] Speaker 00: Dovel, that's right. [00:15:10] Speaker 00: Dovel, okay. [00:15:12] Speaker 00: Let me start by addressing the issue of the data channel construction. [00:15:16] Speaker 00: The court construed two separate phrases. [00:15:19] Speaker 00: One was data channel. [00:15:21] Speaker 00: The other was the online or offline phrase. [00:15:25] Speaker 00: The only challenge below in indefiniteness was to the data channel term. [00:15:31] Speaker 00: And the only challenge was that, well, there are multiple ordinary meanings, and the experts disagree upon it. [00:15:39] Speaker 00: There was not a challenge that one could not determine what the meaning of data channel was. [00:15:44] Speaker 00: And in fact, the other side's expert [00:15:47] Speaker 00: submitted a declaration in which he said this term does have ordinary meaning. [00:15:53] Speaker 00: In fact, our submitted examiner. [00:15:56] Speaker 03: Do you agree whether or not it's irrelevant that Judge Geldstrap applied the wrong standard in analyzing both the motions made by the killer? [00:16:11] Speaker 00: The reason I think the standard is irrelevant is because it didn't play into his analysis. [00:16:15] Speaker 00: His analysis didn't turn on, well, this barely meets the standard. [00:16:19] Speaker 00: His analysis was, I can determine what data channel means with certainty. [00:16:25] Speaker 00: I can identify a construction for it. [00:16:28] Speaker 00: Both sides say that there are two ordinary meanings. [00:16:31] Speaker 00: And we need to determine which one is applicable here. [00:16:34] Speaker 00: He could look at the extrinsic evidence provided by the experts, describing when those two ordinary meanings would apply. [00:16:43] Speaker 00: He could look at the intrinsic evidence and reach a decision. [00:16:46] Speaker 00: The decision he reached was not appealed. [00:16:48] Speaker 00: They don't contend that the right answer was, this should have been a data channel, simply a connection to the internet. [00:16:55] Speaker 00: They don't assert that. [00:16:56] Speaker 00: In fact, on appeal, they assert the opposite. [00:16:59] Speaker 00: They assert that the connection to the internet is something different than a data channel. [00:17:03] Speaker 00: And they're right about that. [00:17:05] Speaker 00: In the context of this patent, a data channel is a connection back to an information source to get a particular category of information, as Judge Gilstrup ruled. [00:17:15] Speaker 00: the data channel issue. [00:17:17] Speaker 00: There's no indefiniteness issue that remains. [00:17:21] Speaker 00: If the court's analysis had turned on the standard, then there would be something to remain. [00:17:28] Speaker 00: But it didn't turn on the standard. [00:17:30] Speaker 00: And as a matter of law, because they haven't appealed that data channel construction, that resolves the indefiniteness. [00:17:37] Speaker 04: Why isn't the internet the data channel? [00:17:40] Speaker 00: Because the data channel is a [00:17:43] Speaker 00: is a connection to an information source to provide a category of information. [00:17:47] Speaker 04: Well, that's the internet. [00:17:49] Speaker 00: No, no, Your Honor. [00:17:51] Speaker 00: If you just connected to the internet, you wouldn't be connecting to a channel that would provide a specific subcategory of information. [00:17:57] Speaker 04: Where do you define that? [00:17:59] Speaker 04: I don't know where that's defined anywhere in this patent, that a data channel is a subcategory of particular information. [00:18:06] Speaker 00: Well, the concept of channel is defined in the extrinsic evidence as what a channel means in the context of internet broadcasting. [00:18:13] Speaker 00: In addition, Your Honor, in this specification, it identifies data channels, as both experts agree. [00:18:19] Speaker 04: Where? [00:18:20] Speaker 00: If we take a look at column 31. [00:18:23] Speaker 00: Actually, let's start at column 7. [00:18:26] Speaker 00: At the bottom of column 7, it refers to [00:18:32] Speaker 04: Information sources providing data feeds that include, for example... Information sources such as the Internet, online services, or other information sources provide data feeds, including real-time data feeds. [00:18:45] Speaker 04: So why isn't the Internet, just like it says here, an information source? [00:18:50] Speaker 00: What that phrase is referring to is information sources on the Internet. [00:18:55] Speaker 00: That's what it's actually referring to. [00:18:57] Speaker 00: We know that from looking at [00:18:59] Speaker 00: the other parts of the specification. [00:19:01] Speaker 04: Information sources such as the internet. [00:19:05] Speaker 04: That's what you say. [00:19:06] Speaker 04: This is column 7, line 54. [00:19:09] Speaker 04: It says information sources such as the internet. [00:19:16] Speaker 00: But what it says, Your Honor, is information sources 12. [00:19:19] Speaker 00: And then it says such as the internet, online services and other information sources provide data feeds. [00:19:25] Speaker 00: It is not an apt phrase. [00:19:27] Speaker 00: I agree, Your Honor. [00:19:28] Speaker 00: But it should not. [00:19:28] Speaker 04: You know, but your specification everywhere in here, when you're talking about online or offline, you expressly define it as IE, column seven, line six, offline, IE, not connected to the internet, or some other online service. [00:19:43] Speaker 04: Yes, Your Honor. [00:19:44] Speaker 04: And then down here, when you're talking about information sources, you expressly say an information source is the internet. [00:19:50] Speaker 04: an online service or any other information source that provides data feeds. [00:19:56] Speaker 04: Boy, that reads a lot like data channels to me. [00:19:58] Speaker 04: I don't know why we needed to move outside the patent to understand what this means. [00:20:03] Speaker 04: I don't know why extrinsic evidence could ever be necessary to understand what this means, because the patent defines it so clearly. [00:20:09] Speaker 00: Because, Your Honor, data channel has two meanings to one of ordinary skill. [00:20:14] Speaker 00: You're approaching it not as one of ordinary skill. [00:20:16] Speaker 00: You're approaching it as, well, let me just look at the words data and channel and assume I know what they mean. [00:20:20] Speaker 00: And if we look at the specification, it describes that online or offline refers to a connection to the internet, as Judge Gilstrap found. [00:20:27] Speaker 04: And the information sources and the data feeds are also the internet. [00:20:33] Speaker 04: Boy, I mean data feed, data channels. [00:20:36] Speaker 04: Boy, that sounds awful similar. [00:20:37] Speaker 04: And since the spec is supposed to be the number one source of definitional information about what your claim terms mean, [00:20:44] Speaker 04: I don't know why there's a need for extrinsic evidence here. [00:20:47] Speaker 00: It doesn't say, Your Honor, that the internet is a data feed. [00:20:50] Speaker 00: It says the internet provides data feed. [00:20:52] Speaker 00: But what is a data feed? [00:20:54] Speaker 00: A data feed is not a connection to the internet. [00:20:57] Speaker 00: A data feed is, for example, electronic mail, an electronic mail feed, a premium or special event feed. [00:21:03] Speaker 00: That's what a data feed is. [00:21:06] Speaker 00: And we know that because that's what those of ordinary skill who submitted testimony in this case told us. [00:21:11] Speaker 00: That's what a data feed is. [00:21:13] Speaker 04: Well, you don't need that. [00:21:14] Speaker 04: people with skill and the art to testify, you say it. [00:21:17] Speaker 04: You define it here. [00:21:18] Speaker 04: The data feeds generated by the information sources are in digital form and divided into one or more data packets. [00:21:25] Speaker 04: The data feeds include, but are not limited to, electronic mail, other personal alert notifications, news, sports, financial stories, premium and special fees, etc., etc., etc. [00:21:35] Speaker 04: All of this is defined in the patent. [00:21:38] Speaker 04: I don't know why you need an expert here, much less extrinsic evidence. [00:21:41] Speaker 00: If your owner agrees that a data feed is a data channel, a data feed from an information source, then we are in agreement. [00:21:48] Speaker 00: But a data feed is not a connection to the internet. [00:21:50] Speaker 00: If you're simply connected to the internet, you're not connected online to a data channel. [00:21:55] Speaker 00: You're connected online. [00:21:57] Speaker 00: To be online to a data channel, you have to be connected to a data feed, to a specific information source. [00:22:05] Speaker 00: For example, in column 31, it explains that the way the invention works, that we've got information sources providing these data feeds. [00:22:14] Speaker 00: Then we have a central broadcast server that takes certain information from the data feed. [00:22:19] Speaker 00: For example... Let's take a look at... Actually, if we go back to column 7, we'll have the... [00:22:39] Speaker 00: where the central broadcaster brought it to it as well. [00:22:49] Speaker 00: If you take a look at, well let's start with column 6 at line 40 or 37, right at the start of that paragraph. [00:22:57] Speaker 00: It says data parsed from the correlated incoming data feeds. [00:23:02] Speaker 04: Line 37 is in the middle of a sentence. [00:23:04] Speaker 04: Is that where you need me to be? [00:23:06] Speaker 00: 38, the start of that paragraph. [00:23:08] Speaker 04: As will be described? [00:23:09] Speaker 04: Yes. [00:23:10] Speaker 00: Data parsed from a parallel of incoming data feeds from existing information sources is wirelessly transmitted by the central broadcast server to connected and non-connected computing devices. [00:23:20] Speaker 00: So we're going to parse out some data from the information sources. [00:23:25] Speaker 00: And then what it says is if you go to column 31, it says that [00:23:33] Speaker 00: starting at line 24, in accordance with the present invention, very short notification-centric messages, such as news headlines and so on, are sent over through the central broadcast server. [00:23:47] Speaker 00: So what we're going to do is we're going to take a headline from a data feed, transmit that to our computing device. [00:23:54] Speaker 00: Then what's the computing device do? [00:23:56] Speaker 00: The computer can make a wired connection back to the information source 12 to obtain more detailed information, continuing on that same column down at line 39. [00:24:05] Speaker 00: It can go directly to the specific site that the information came from, and then it lines 47 to 49. [00:24:13] Speaker 00: It establishes connection 24. [00:24:15] Speaker 00: It takes the user directly back to the location where the information is located. [00:24:19] Speaker 00: It's connecting the computer to this data feed, as both experts agree, [00:24:25] Speaker 00: that line 24 is a data channel recited in the claims. [00:24:28] Speaker 04: I don't know how it could be the data channel. [00:24:31] Speaker 04: I don't know about the data feed being a data channel, because according to the claim, the data channel has to be associated with each device. [00:24:38] Speaker 04: I don't think email is associated with any device. [00:24:40] Speaker 04: I don't think sports and financial services are associated with the device. [00:24:45] Speaker 00: Yes, they are, Your Honor. [00:24:46] Speaker 00: The association is you have to have either software or hardware on the device that associates that data channel. [00:24:51] Speaker 00: For example, in the preferred embodiment, [00:24:54] Speaker 00: You're installing a special viewer, special app viewer that associates a specific data channel. [00:25:00] Speaker 00: You install the headline news app. [00:25:02] Speaker 00: You install the sports app. [00:25:04] Speaker 00: You install the stock code app. [00:25:07] Speaker 00: That associates that data channel with the computing device. [00:25:10] Speaker 04: What are you talking about installing all these apps? [00:25:12] Speaker 04: These data feeds, according to your specs, are to be accessed through the internet. [00:25:18] Speaker 04: So you've got the internet and the real-time data feed coming through the internet. [00:25:23] Speaker 04: I don't understand where the app is coming in that you're describing. [00:25:27] Speaker 04: I'm trying to work off your spec. [00:25:29] Speaker 04: You're saying a lot of stuff, but I'm trying to work it in terms of your spec. [00:25:33] Speaker 00: Yeah, this isn't a specification one. [00:25:35] Speaker 00: There's a large section that deals with what happens on the remote computing device. [00:25:40] Speaker 00: For example, one thing I can point out is a figure. [00:25:46] Speaker 04: Because all these data feeds are generated by the information sources, and the information source is the internet. [00:25:53] Speaker 04: I kind of thought this just meant you hook up to the internet and you happen to go to the ESPN. [00:25:58] Speaker 04: No, Your Honor. [00:25:59] Speaker 00: It identifies information sources, for example, as CNN, as AOL, as stockcode.com. [00:26:08] Speaker 04: Yes, but you don't need apps to do those. [00:26:09] Speaker 04: You can access all of those on live feed directly from the internet. [00:26:13] Speaker 00: You can, but then you wouldn't have an associated data channel. [00:26:15] Speaker 04: Right, but that's what you disclose here is taking those lines. [00:26:21] Speaker 04: You don't disclose an app. [00:26:23] Speaker 04: You disclose having these data feeds live through the internet or other online services. [00:26:30] Speaker 00: That's not true, Your Honor. [00:26:31] Speaker 00: There's lengthy passages describing the app. [00:26:35] Speaker 04: Okay, well maybe you should take me to that because I'm just reading the one you directed me to, which is the bottom of column seven. [00:26:40] Speaker 04: And don't you agree that the bottom of column seven, the one I'm reading, says these information sources, the internet, are going to provide the real-time data feeds? [00:26:50] Speaker 04: That's just the Internet. [00:26:51] Speaker 04: It doesn't say anything about an app. [00:26:52] Speaker 04: An app is not mentioned where you point it. [00:26:54] Speaker 00: The app is on the user side. [00:26:55] Speaker 00: If you take a look, for example, at Figure 11, this is an example of the user interface that's on the remote computing device. [00:27:02] Speaker 00: And you'll see these category buttons. [00:27:04] Speaker 00: Here's a headline, news app, lifestyle, business, sports. [00:27:08] Speaker 00: What line are you reading? [00:27:09] Speaker 00: This is on Figure 11. [00:27:10] Speaker 00: It's at page A185. [00:27:12] Speaker 00: And if we then look in the specification, [00:27:21] Speaker 00: For example, in column 23, starting at line 45, there's a description of the user interface alert panel, and that carries over to column 24. [00:27:39] Speaker 00: In fact, most of 22 through [00:27:49] Speaker 00: These are not apps. [00:27:54] Speaker 04: These are simply, it looks to me, I'm streaming this now, but it looks like this is just a panel which is going to receive notifications from these things. [00:28:09] Speaker 04: You can click on them and get your notifications. [00:28:12] Speaker 00: You also can use it to connect back [00:28:14] Speaker 04: Can you stop nodding? [00:28:15] Speaker 04: When you nod, it's really distracting. [00:28:17] Speaker 04: Don't do that. [00:28:18] Speaker 00: Go ahead. [00:28:18] Speaker 00: You can also use those to connect back to the data channel. [00:28:23] Speaker 00: It describes using the remote computing device side. [00:28:30] Speaker 00: You can connect back. [00:28:32] Speaker 00: There's two different ways. [00:28:33] Speaker 00: There are two different embodiments. [00:28:35] Speaker 00: One is that the device can be designed such that when a certain type of alert starts, it automatically starts the [00:28:44] Speaker 00: the particular data feed and it links automatically back. [00:28:46] Speaker 00: The other one is the user can click on it and link back. [00:28:51] Speaker 00: But all that's still on the app side. [00:28:52] Speaker 00: But that's simply, Your Honor, simply there. [00:28:54] Speaker 04: Where? [00:28:54] Speaker 04: Where? [00:28:54] Speaker 04: Where does it say it? [00:28:55] Speaker 04: Because it doesn't say it in this passage. [00:28:57] Speaker 04: So show me where in the spec what you're claiming now is the disclosed embodiment. [00:29:04] Speaker 04: This app where you're going to connect back and be [00:29:09] Speaker 04: I mean, this package on column 23 is only about receiving messages and storing them, and then you click on these little buttons and you get the messages. [00:29:18] Speaker 00: Well, you run it, for example, at column 35, lines 47 through 48. [00:29:24] Speaker 00: It says the user can just hit one button. [00:29:27] Speaker 04: Column 35, this is the plane. [00:29:29] Speaker 00: I'm sorry, column 31. [00:29:31] Speaker 00: Column 31, 47 through 48. [00:29:37] Speaker 00: The user can just hit one button which establishes the connection. [00:29:40] Speaker 00: 24 takes the user directly to the location where the information is located. [00:29:52] Speaker 00: Those details, by the way, are not required in the claim. [00:29:54] Speaker 00: All the claim requires is that there be an association between the data channel and the remote computing device. [00:29:59] Speaker 00: It can be done through software. [00:30:01] Speaker 00: It can be done through hardware. [00:30:03] Speaker 00: In the specification, it's done through software. [00:30:05] Speaker 00: That's how we associate a data channel. [00:30:07] Speaker 00: stock quote data channel. [00:30:09] Speaker 00: Do we have software on the remote computing device that relates to that stock quote data channel? [00:30:16] Speaker 00: That's the association of the data channel. [00:30:18] Speaker 00: That wasn't in dispute below, Your Honor. [00:30:19] Speaker 00: That wasn't as part of the dispute as part of the claim construction. [00:30:22] Speaker 00: In fact, the phrase associated data channel was not separately construed. [00:30:26] Speaker 00: And there was no dispute among the experts as to what it referred to. [00:30:29] Speaker 00: There was no dispute in the trial about that that was satisfied by the Google system. [00:30:36] Speaker 00: If there are no further questions about data channel, I can turn briefly to the notifying step where council started. [00:30:42] Speaker 04: I think that our time is up, so if you want to just hit it for one minute, you can go ahead and hit it. [00:30:48] Speaker 00: Thank you, Your Honor. [00:30:50] Speaker 00: The act of notifying can be performed indirectly, and if it's performed indirectly, it's performed using devices, using a series of devices. [00:30:59] Speaker 00: In this case, the receiver is a device that's used by Google. [00:31:02] Speaker 00: The receiver is not an entity. [00:31:04] Speaker 00: It's not a legal entity that performs an act. [00:31:06] Speaker 00: It's a device. [00:31:07] Speaker 00: And the question is, who uses that device? [00:31:10] Speaker 00: It's not the user that's using it. [00:31:12] Speaker 00: It's Google that uses it. [00:31:13] Speaker 00: Google's MCS system sets up a connection that passes through the receiver all the way to the computing device. [00:31:21] Speaker 00: Google is the entity that initiates the notifying signal. [00:31:24] Speaker 00: You must have a signal to notify the CPU. [00:31:27] Speaker 00: It can be the data. [00:31:29] Speaker 00: And it's Google that initiates that transmission underserved [00:31:31] Speaker 00: that would satisfy that element. [00:31:34] Speaker 00: Thank you. [00:31:35] Speaker 03: I have a question before you sit down. [00:31:40] Speaker 03: Is there any evidence in the record that indicates that what appears a natural implication from the terms of the settlement agreement with Microsoft that [00:31:58] Speaker 03: through its allocation, it was specifically designed to harm a business competitor is not correct. [00:32:06] Speaker 03: I'm not following the question. [00:32:08] Speaker 03: You're not following? [00:32:09] Speaker 03: OK. [00:32:10] Speaker 03: I don't know whether this is confidential or not. [00:32:12] Speaker 03: I'm just going to assume it isn't. [00:32:13] Speaker 03: Google. [00:32:14] Speaker 03: Is there evidence in the record that refutes that? [00:32:18] Speaker 00: Well, the evidence would be that Google had a chance to take discovery on that very issue, take the depositions of both Microsoft and simple errors negotiators, [00:32:28] Speaker 00: Google played at trial what they thought was the relevant part from that deposition from Microsoft. [00:32:34] Speaker 00: And there was no evidence that that was the case, Your Honor. [00:32:36] Speaker 00: That was an allocation that both parties made that suited both their interests. [00:32:41] Speaker 00: And the reason is, it's important on the Microsoft side of things, if they're ever faced with a circumstance where somebody's trying to compare this license to some of their technology, that in fact, this one particular patent would have a certain amount assigned to it. [00:32:57] Speaker 00: so that they could use that as that's the appropriate comparable. [00:33:00] Speaker 00: Both sides agreed in that Microsoft negotiation that that was the appropriate amount for that. [00:33:06] Speaker 00: Below, Your Honor, they didn't assert that that number was wrong. [00:33:09] Speaker 00: Below, they asserted, they agreed, that was the amount that should be asserted to the 914 pattern. [00:33:15] Speaker 00: There was no dispute about that. [00:33:16] Speaker 00: They affirmatively asserted that in their motion papers, and their expert agreed that that was the appropriate amount to sign to the 914 pattern. [00:33:23] Speaker 00: Finally, Your Honor, at best, this becomes [00:33:26] Speaker 00: an issue for cross-examination. [00:33:28] Speaker 00: It's a challenge to a piece of data that was used by the expert in making one adjustment for this comparable. [00:33:39] Speaker 00: And the court's precedent, including active video and others, hold that such adjustments are simply matters for cross-examination. [00:33:48] Speaker 00: They don't give rise to a Dover challenge, Your Honor. [00:33:51] Speaker 00: There would simply be a situation you have to raise on cross-examination. [00:33:54] Speaker 00: It wouldn't be something [00:33:55] Speaker 00: that would be a reason for excluding the entire testimony, because the methodology is correct. [00:34:00] Speaker 00: We're taking a comparable, we're making appropriate adjustments, and the appropriate types of adjustments, the challenge to the data used in the adjustment is not a proper DOPPER challenge. [00:34:16] Speaker 01: Thank you. [00:34:16] Speaker 01: Very briefly, Judge Wallach, Judge Wallach, [00:34:23] Speaker 01: answer your question. [00:34:25] Speaker 01: The settlement agreement was entered into weeks before trial. [00:34:28] Speaker 01: There was not enough time or opportunity to adequately explore it. [00:34:33] Speaker 01: And as to the notion that our expert agreed, we lost the Daubert motion, Your Honor. [00:34:39] Speaker 01: And so the Microsoft agreement was in evidence. [00:34:43] Speaker 01: And so we had to deal with at trial the ruling on Daubert. [00:34:47] Speaker 01: It doesn't mean we agreed with it. [00:34:49] Speaker 01: We expressly challenged it. [00:34:51] Speaker 01: On the [00:34:53] Speaker 01: issue of where in the spec there's descriptions of this construction of data channel, I think that we can see that, for example, in column seven, they're not even talking about the notification or any connection to the remote computing device. [00:35:10] Speaker 01: They're pointing to the connection between the information source and the central broadcast server. [00:35:16] Speaker 01: That's what that column is talking about. [00:35:18] Speaker 01: Same thing with column six. [00:35:20] Speaker 01: is talking about the data feed connection to the CVM. [00:35:23] Speaker 01: It's not talking about any connection that has nothing to do with that connection. [00:35:29] Speaker 01: And when you look at column 31, which they point to, it's talking about a wired connection back to the information source. [00:35:39] Speaker 01: And it's specifically talking about the pipe. [00:35:42] Speaker 01: It's a wired connection back, which is totally consistent [00:35:46] Speaker 01: with the construction your honors are intimating at that online or offline period is what the specification is talking about. [00:35:54] Speaker 01: And secondly on this site, this is not part of the claimed elements either. [00:35:59] Speaker 01: The claimed elements don't, the spec talks about you can go back then after you get your notification and use 24, line 24, physical pipe. [00:36:08] Speaker 01: But that's not part of the claim language. [00:36:10] Speaker 01: The claim language is if you're offline from line 24, [00:36:15] Speaker 01: There's another way to get that notification through the paging service. [00:36:18] Speaker 01: On the other side, if you look at the figure one in this patent. [00:36:25] Speaker 01: So, unless your honors have any questions about the comments that were made on the joint infringement or notifications, Steph, I think that addresses my rebuttal. [00:36:36] Speaker 04: No, I thank both counsels for their argument and cases taken under submission.