[00:00:49] Speaker 04:
Tom, Tom, and Adolf.

[00:00:53] Speaker 04:
Helen, Ms.

[00:00:54] Speaker 04:
Payton.

[00:01:01] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:01:04] Speaker 00:
We are here today to talk about claim construction again.

[00:01:08] Speaker 00:
In this particular case, we have four basic claim construction issues that have been appealed.

[00:01:15] Speaker 00:
Two involve the preamble.

[00:01:17] Speaker 00:
This is a purpose preamble reciting the intended use of the technology.

[00:01:22] Speaker 00:
The district court construed the purpose preamble to be a substantive limitation.

[00:01:28] Speaker 00:
This is not correct in view of the intrinsic evidence.

[00:01:32] Speaker 00:
The third issue relates to the question of note.

[00:01:35] Speaker 00:
It's a term of art used throughout the specification as well as in claim one in several locations.

[00:01:43] Speaker 02:
Can I just go right there?

[00:01:43] Speaker 00:
Certainly.

[00:01:44] Speaker 02:
The law has changed since this case was briefed.

[00:01:47] Speaker 02:
You know, the TEFA case came out.

[00:01:50] Speaker 02:
Is there anything in the intrinsic record that tells us what a node is?

[00:01:54] Speaker 00:
There is, Your Honor.

[00:01:55] Speaker 02:
There's multiple locations.

[00:01:56] Speaker 02:
And where would that be?

[00:01:57] Speaker 00:
The claim itself.

[00:01:58] Speaker 00:
The claim uses the term node several times, as well as the specification, particularly columns 9 and 10, where it talks about nodes in the context of collecting travel distance data, as well as section 2.

[00:02:11] Speaker 02:
Well, but I think there's two parts to my question, I guess.

[00:02:16] Speaker 02:
what a node is in a plain meaning sense.

[00:02:20] Speaker 02:
But the claim construction says that a node is a place where there has to be a directional change.

[00:02:25] Speaker 02:
And that's one of the things you're not happy about.

[00:02:29] Speaker 02:
Where in the intrinsic record is there any indication that a node can be a place where a straight line continues?

[00:02:37] Speaker 00:
Again, Your Honor, in Columns 9 and 10, particularly in the context of travel distance data, where it talks about collecting data at predetermined time intervals.

[00:02:45] Speaker 00:
Of course, that would include situations in which the mobile unit is traveling in a straight line.

[00:02:50] Speaker 02:
They're going absolutely straight, and every 10 minutes or so there's a data point.

[00:02:54] Speaker 00:
It's actually much faster than that.

[00:02:55] Speaker 00:
Much faster than that, sure.

[00:02:56] Speaker 00:
Right, every second or five seconds.

[00:02:58] Speaker 02:
Right, right.

[00:02:59] Speaker 00:
So that's just one example.

[00:03:01] Speaker 02:
So we don't need to look at any intrinsic evidence here.

[00:03:03] Speaker 00:
No, and in fact, the court did not below.

[00:03:06] Speaker 00:
I should note, for your honor, in light of the question about TEVA, when we get to the storing device issue,

[00:03:11] Speaker 00:
there was an underlying dispute about the term storage device.

[00:03:17] Speaker 00:
And Tom Tom argued that expert testimony was relevant to this issue.

[00:03:23] Speaker 00:
Dr. Adolph provided a technical definition.

[00:03:27] Speaker 00:
The court ultimately said the ordinary meaning controls and it adopted that technical definition.

[00:03:32] Speaker 00:
So there was a disputed factual question about storage device.

[00:03:36] Speaker 00:
However, that particular question, what the term means, has not been appealed.

[00:03:41] Speaker 00:
Rather, we're talking about the articles that precede that term.

[00:03:44] Speaker 00:
And Tom Tom is arguing it's indefinite.

[00:03:47] Speaker 00:
We're saying there's no indefiniteness problem.

[00:03:49] Speaker 00:
Just leave it as it is, as the district court did.

[00:03:52] Speaker 02:
But to answer my original question, there's plenty of intrinsic evidence about note.

[00:03:56] Speaker 02:
And you're just saying the district court got it wrong.

[00:03:58] Speaker 00:
That's correct.

[00:03:59] Speaker 00:
What the court did is it chose particular embodiments that are only related to section data.

[00:04:05] Speaker 00:
And in fact, it only chose one of those embodiments in the same description.

[00:04:09] Speaker 00:
and it decided to import that language into the claim.

[00:04:12] Speaker 00:
What that has done is it has read out other node embodiments that are actually already in the claim.

[00:04:18] Speaker 00:
And in particular, the nodes that are collected and involve travel distance data, they're collected at predetermined time intervals.

[00:04:25] Speaker 04:
As I understand the invention, what it lets somebody do is effectively tag, in the old sense of the word, that is, go off the trail.

[00:04:35] Speaker 04:
And it does that by gathering data which

[00:04:39] Speaker 04:
places the user or whatever vehicle in time as well as place so that the user, the machine knows that it is being tracked every second to create a map.

[00:05:00] Speaker 04:
But to raise another question here,

[00:05:06] Speaker 04:
The way I read it as well with the distinction that was made before the examiner is it doesn't refuse a map.

[00:05:16] Speaker 04:
That is, it can be used with a map loaded onto the machine.

[00:05:21] Speaker 04:
It simply allows the user to go off the map.

[00:05:27] Speaker 00:
That's correct and I think your honor is referencing the discussion regarding SATO and distinguishing SATO.

[00:05:34] Speaker 00:
So the problem is the SATO reference requires a pre-existing map loaded and then the data is compared to that map.

[00:05:41] Speaker 00:
So for instance, if you're in a location, that map doesn't recognize, that technology doesn't work.

[00:05:47] Speaker 00:
And likewise, if there's no initial database, it doesn't work.

[00:05:51] Speaker 00:
In contrast, our technology can collect the information as described in the body of claim

[00:05:57] Speaker 00:
regardless of whether a map is there or not.

[00:06:00] Speaker 04:
Am I correct then that in light of Sado, TomTom says, well, we have maps.

[00:06:10] Speaker 04:
And the way I understand your argument is that you're creating maps back in Amsterdam and that's what the infringement is.

[00:06:19] Speaker 04:
Am I correct?

[00:06:21] Speaker 00:
Well, they're creating maps, but this leads back to the claim construction issue.

[00:06:24] Speaker 00:
The way that the court interpreted

[00:06:26] Speaker 00:
the prosecution history, he read out embodiments that allow for maps to actually sit on the device.

[00:06:33] Speaker 00:
Their devices contain maps, so they're in line with that.

[00:06:37] Speaker 03:
So your view is your device can have a map, but doesn't have to?

[00:06:41] Speaker 00:
Correct.

[00:06:42] Speaker 03:
Why isn't that, if your device has a map, why isn't that then anticipated by SATA?

[00:06:50] Speaker 03:
It meets every single limitation of SATA, which includes maps.

[00:06:54] Speaker 00:
Our device, and particularly claim one, is not focused on maps and comparing data to maps.

[00:07:00] Speaker 00:
It's focused on data collection in a particular manner.

[00:07:04] Speaker 00:
So to put it differently, SATO doesn't have section data, for instance, as our claim one does.

[00:07:10] Speaker 00:
SATO doesn't do anything with the information once it's collected in stores.

[00:07:16] Speaker 00:
It doesn't make any meaningful decision about which data to keep from the travel distance data that's being logged and actually store that as section data.

[00:07:25] Speaker 04:
by saying SADO requires a map and we don't require a map.

[00:07:29] Speaker 04:
That's it.

[00:07:30] Speaker 00:
That's right.

[00:07:31] Speaker 00:
I mean, the significant difference is we will collect data according to... So you added in a limitation that you don't have to have maps.

[00:07:39] Speaker 00:
We actually did not, Your Honor.

[00:07:41] Speaker 03:
Well, isn't that, I mean, isn't that a pretty fair read in the prosecution history when you responded to SADO by saying SADO requires maps and we don't?

[00:07:51] Speaker 00:
Actually, what we said is, SEDA requires an initial map to work.

[00:07:56] Speaker 00:
Our system, in the body of the claims, works whether or not a map is there.

[00:08:01] Speaker 03:
And keep in mind... Can you please point to me where in the prosecution history it says, our system works, whether or not a map is there?

[00:08:10] Speaker 00:
I believe it's in A213.

[00:08:20] Speaker 00:
which is page 13 of an office action.

[00:08:25] Speaker 00:
If we start at the top, first, SATA requires that an initial database representing road data or roadways be loaded into the system before the additional acquisition of data can take place.

[00:08:37] Speaker 00:
SATA specifically requires the steps of previously expressing each point on the roads in a map in numerical form and memorizing them as map data.

[00:08:48] Speaker 00:
Elsewhere in the application, Sado teaches a method which requires a CD-ROM or an IC card.

[00:08:54] Speaker 03:
I know that passage.

[00:08:56] Speaker 03:
I mean, I've read that passage, too.

[00:08:57] Speaker 03:
Where in that passage does it suggest that your device can have a map?

[00:09:01] Speaker 03:
Because all I read in that passage is you're saying ours can be done without a map.

[00:09:07] Speaker 03:
I mean, the last, or at least the last sentence I have in that paragraph,

[00:09:11] Speaker 03:
says, this can all be accomplished without the need for any initial network data, which I'm reading as a map.

[00:09:17] Speaker 03:
But there are other references to known maps, either.

[00:09:20] Speaker 03:
There's no reference to our invention can work with a map in here, is there?

[00:09:26] Speaker 00:
But it actually says the opposite.

[00:09:27] Speaker 00:
And let's go back to the language, Your Honor Seitz.

[00:09:29] Speaker 00:
This can all be accomplished without the need for an initial map.

[00:09:35] Speaker 00:
Our data acquisition occurs independently of any mapping activity.

[00:09:40] Speaker 00:
That's the distinction.

[00:09:41] Speaker 00:
And if we go back to claim one, it's a comprising claim.

[00:09:45] Speaker 00:
Claim one talks about data collection.

[00:09:47] Speaker 03:
But just to get back to my question.

[00:09:49] Speaker 03:
Sure.

[00:09:49] Speaker 03:
There's nothing in here that says your device can operate with a map.

[00:09:54] Speaker 00:
That's correct.

[00:09:55] Speaker 00:
We can work with a map and we can work without.

[00:09:59] Speaker 00:
Another way to put it is collection.

[00:10:01] Speaker 03:
You keep saying that, but this is the passage you point to me in the prosecution history that says you can work with a map, but it doesn't say anything about that.

[00:10:08] Speaker 03:
So is there anything else you have?

[00:10:10] Speaker 03:
Because it seems to me the whole point of this passage is to distinguish SATA, which works with a map, and say we work without a map.

[00:10:17] Speaker 03:
And I don't understand why that's not construed as a negative limitation.

[00:10:21] Speaker 00:
Understood, Your Honor.

[00:10:22] Speaker 00:
It's not for a couple of reasons.

[00:10:24] Speaker 00:
I think your point is well made.

[00:10:25] Speaker 00:
There's nothing there that says we can do it with a map.

[00:10:29] Speaker 00:
That's the whole point.

[00:10:30] Speaker 00:
We don't collect data based upon whether a map is there or not.

[00:10:34] Speaker 00:
But really what this is saying is we're not limiting ourselves.

[00:10:37] Speaker 00:
There's no limiting arguments here.

[00:10:40] Speaker 00:
because the map is irrelevant to our technology.

[00:10:43] Speaker 02:
You're not saying you can't work with a map.

[00:10:46] Speaker 00:
Correct.

[00:10:46] Speaker 02:
You're distinguishing SATO by saying you don't need a map.

[00:10:49] Speaker 00:
That's correct.

[00:10:51] Speaker 02:
If I understand what you're saying, it wasn't necessary for you to say, oh, by the way, we can use a map.

[00:10:56] Speaker 00:
That's right, because we have not limited our technology in any way.

[00:11:00] Speaker 03:
But if your technology actually includes a map, it's anticipated by SATO.

[00:11:05] Speaker 00:
That's not true, Your Honor.

[00:11:06] Speaker 03:
When the map issue exists.

[00:11:08] Speaker 00:
That's not true, for a number of reasons, including the fact that SATO does not create and select section data, and SATO does not continuously... But that's not what you use to distinguish SATO.

[00:11:20] Speaker 03:
I mean, you use this map thing to distinguish SATO.

[00:11:24] Speaker 03:
If we were talking about something else to distinguish SATO, we wouldn't be talking about this point.

[00:11:29] Speaker 03:
But SATO, if your device... I'm only talking about the map issue.

[00:11:33] Speaker 03:
If your device uses a map, then it's anticipated by SATO.

[00:11:38] Speaker 00:
That's actually not true, Your Honor.

[00:11:40] Speaker 00:
And it's not true for a number of reasons relating to other aspects of the claim.

[00:11:44] Speaker 00:
Remember, Sado was talking about it in two maps.

[00:11:46] Speaker 03:
Again, you didn't distinguish Sado based on those other aspects.

[00:11:49] Speaker 03:
You distinguished Sado based on the map.

[00:11:54] Speaker 00:
That is true, Your Honor.

[00:11:55] Speaker 00:
However, we did distinguish on a number of other bases, including the fact that Sado does not select section data out of travel distance.

[00:12:03] Speaker 03:
Let me ask you a hypothetical.

[00:12:04] Speaker 03:
Instead of this language, you had said in distinguishing Sado,

[00:12:08] Speaker 03:
our device does not use a map, then TomTom's products wouldn't infringe, right?

[00:12:18] Speaker 03:
Because theirs do use a map.

[00:12:20] Speaker 00:
That's correct.

[00:12:21] Speaker 00:
That would be a distinction where we have disclaimed certain technology.

[00:12:26] Speaker 00:
And that disclaimer would be an initial map database.

[00:12:29] Speaker 00:
But that's not what happened here with this language.

[00:12:32] Speaker 00:
And that's the important distinction.

[00:12:36] Speaker 04:
We're eating up your time.

[00:12:38] Speaker 04:
It strikes me that it's really a question of convenience as opposed to ability.

[00:12:44] Speaker 04:
Your machine has the ability to go off the map, but it's convenient to have a map.

[00:12:50] Speaker 00:
Certainly, Your Honor, and that machine cannot go off map.

[00:12:54] Speaker 00:
It cannot go to a destination without a map.

[00:12:56] Speaker 00:
It will not work.

[00:12:59] Speaker 00:
So we have other preamble issues and we have other issues that do not relate to the preamble.

[00:13:04] Speaker 00:
Maybe I'll talk about the other aspects of the preamble.

[00:13:06] Speaker 04:
One unusual... You've already passed your time.

[00:13:10] Speaker 00:
Understood, Your Honor.

[00:13:11] Speaker 00:
I'll save the rest for a while.

[00:13:13] Speaker 04:
There is no rest.

[00:13:13] Speaker 04:
We'll give you two minutes.

[00:13:15] Speaker 00:
Thank you.

[00:13:17] Speaker 00:
Your Honor, with respect to the other aspect of the preamble, there was no basis... No, no, no.

[00:13:21] Speaker 04:
You've passed your time.

[00:13:23] Speaker 00:
You're telling me to sit down.

[00:13:24] Speaker 04:
Yeah.

[00:13:24] Speaker 00:
Thank you.

[00:13:28] Speaker 02:
It's our fault.

[00:13:30] Speaker 02:
That's how it goes.

[00:13:38] Speaker 01:
Good morning, Your Honors.

[00:13:39] Speaker 01:
My name is Brian Pandia, representing the appellee TomTom, Incorporated.

[00:13:45] Speaker 01:
The district court's construction of destination tracking system of at least one mobile unit should be affirmed.

[00:13:52] Speaker 01:
And in turn, the final judgment of non-infringement should be affirmed, because as the district court recognized, a destination tracking system of at least one mobile unit does not contain initial information relating to existing road networks.

[00:14:05] Speaker 01:
unlike the TomTom devices, which always contain maps.

[00:14:10] Speaker 01:
The District Court's claim construction is supported by the claim itself, the specification, and the file history.

[00:14:17] Speaker 01:
The claim here is directed to a method of generating and updating data for use in a destination tracking system.

[00:14:24] Speaker 01:
So what's claimed here is a new way to generate and update data you can then use to track destinations on your mobile unit.

[00:14:31] Speaker 01:
In fact, the specification teaches that

[00:14:33] Speaker 04:
What is TomTom shipping back to Amsterdam, and what is it producing when it does that?

[00:14:39] Speaker 01:
Well, what TomTom does is it collects the points you travel in one second or five second intervals.

[00:14:48] Speaker 01:
It just collects the starting point in what's called a delta or a delta-delta value, the change in positions, very cryptic data.

[00:14:57] Speaker 04:
It's not cryptic.

[00:14:58] Speaker 04:
It's basic trigonometry, angles and times.

[00:15:03] Speaker 01:
It is in that regard.

[00:15:05] Speaker 01:
So that data is collected.

[00:15:06] Speaker 01:
It's stored on the device.

[00:15:07] Speaker 01:
If the user consents to sharing the data, you can plug it into your computer, or you can upload it wirelessly.

[00:15:14] Speaker 01:
The data gets sent to Amsterdam, where it's merged with all sorts of other data sets.

[00:15:19] Speaker 01:
And then in exchange for consenting to the use of the data, you can then have certain updates to your map that are then returned to the user through the internet from TomTom's servers in the Netherlands.

[00:15:33] Speaker 01:
So for example, this helps you then decide what's the quickest way to get from point A to point B during rush hour.

[00:15:38] Speaker 01:
So all the data that gets collected on the device.

[00:15:41] Speaker 04:
How is that amalgamation of data and its then production of information not in French?

[00:15:52] Speaker 01:
Well, there are several reasons.

[00:15:55] Speaker 01:
First of all, on the preamble issue, unlike the claimed method of generating and updating data where you

[00:16:02] Speaker 01:
where you work without a map, preloaded the device.

[00:16:05] Speaker 01:
The notion of collecting data, traffic data, is an old notion.

[00:16:09] Speaker 01:
Dr. Adoff talks about a number of prior destination tracking systems.

[00:16:16] Speaker 01:
He says in A74, typical navigation systems work by continuously analyzing the current location of a moving vehicle and comparing this position with the road network in the form of geographical data.

[00:16:28] Speaker 01:
The information can be read from the roadmap stored on the CD-ROM.

[00:16:33] Speaker 01:
He also describes A74, a destination tracking device, which contains a facility which has collected and stored data, just like the TomTom devices.

[00:16:42] Speaker 01:
But he says the problem with these devices is that the device itself cannot generate its own data.

[00:16:49] Speaker 01:
He also says that known methods at A75, known methods and systems are based on the hypothesis that the available road network is essentially known, but the geographic data that's stored on the device

[00:17:02] Speaker 01:
It does not accurately represent the roads.

[00:17:05] Speaker 01:
So what TomTom is doing here is fundamentally different from what Adoc claimed and described in his patent.

[00:17:11] Speaker 01:
He claimed a method for generating and updating data that you can then use all in the device itself to build your own maps.

[00:17:19] Speaker 01:
The only thing TomTom is doing here is collecting the starting latitude and longitude, and then you collect the change in position or the change of the change in the position, the delta or the delta to delta value.

[00:17:31] Speaker 01:
That data just sits on the device.

[00:17:33] Speaker 01:
It's what Dr. Adolf called, at 875, a prior traffic control system.

[00:17:40] Speaker 01:
The TomTom device simply collects data points.

[00:17:43] Speaker 01:
There's no processing of the data on the device itself.

[00:17:47] Speaker 01:
Everything happens in the Netherlands.

[00:17:50] Speaker 01:
In fact, TomTom moved for summary judgment of non-infringement on this basis in January of 2013.

[00:17:57] Speaker 01:
Dr. Adolf argued

[00:17:59] Speaker 01:
at the district court initially to evade summary judgment, a claim interpretation that said everything has to happen inside the device.

[00:18:07] Speaker 01:
Dr. Adolph said, for example, add to the A274 and 275.

[00:18:12] Speaker 01:
When we're talking about claim one and activity in claim one, which is collecting data in a particular manner and storing it and updating it in a particular manner, that's all done on the unit and it's all done according to claim one.

[00:18:28] Speaker 01:
A836, Dr. Adolph has never accused any components or methods that are performed outside of a mobile unit.

[00:18:37] Speaker 01:
A272 and 73, we have an expert who points to their own witnesses' statements and to their own documents which show that this data is collected and continuously supplemented and updated on the devices.

[00:18:50] Speaker 01:
So, that was sufficient to defeat summary judgment in the first instance at the district court.

[00:18:55] Speaker 01:
But Dr. Adolf now has waived any argument to come back here and say, well, now I want a claim construction that permits me to perform certain activities outside the scope or outside of the device.

[00:19:07] Speaker 01:
The scope of the claim cannot be read.

[00:19:09] Speaker 01:
It's inconsistent not only with the specification and the file history, but with the positions that Dr. Adolf took in the district court to get around summary judgment the first time, because there is this problem that the device only collects data points, does nothing with it,

[00:19:23] Speaker 01:
all the processes are happening in Amsterdam, which this court has said cannot infringe a method claim because that's outside the United States.

[00:19:37] Speaker 01:
Dr. Adolf argues that data collection is all that claim one requires, but that's contradicted by the specification of prosecution history at A74 and A75, that his device can

[00:19:50] Speaker 01:
It can do more than just collect data.

[00:19:52] Speaker 01:
It lets you go off the trail.

[00:19:53] Speaker 01:
It lets you build maps.

[00:19:54] Speaker 01:
The destination tracking systems were well known in the prior art.

[00:19:58] Speaker 01:
Those systems all worked with maps.

[00:19:59] Speaker 01:
They generated and updated data using maps.

[00:20:02] Speaker 04:
So you can't infringe on method claims because that's outside the United States.

[00:20:07] Speaker 04:
So it's okay then to sell the infringing information back in the United States.

[00:20:13] Speaker 01:
Well, the information is not solved in the United States and that's, I think... It's just given away.

[00:20:19] Speaker 01:
Well, that's correct.

[00:20:21] Speaker 04:
But the claim here is... And why did people buy the device?

[00:20:25] Speaker 01:
Well, they buy the device because of the maps, because it's easy to use.

[00:20:29] Speaker 01:
It helps you navigate the... Not much good without the information, though.

[00:20:33] Speaker 01:
Well, the maps, though, are preloaded onto the device.

[00:20:36] Speaker 02:
Right, but you have to have the data for the device to do you any good.

[00:20:39] Speaker 01:
That's correct.

[00:20:40] Speaker 01:
And we're talking about two different sets of data here.

[00:20:42] Speaker 01:
The devices become preloaded with the maps.

[00:20:43] Speaker 01:
Right.

[00:20:44] Speaker 01:
Do you advertise that it's updatable?

[00:20:48] Speaker 01:
I don't think that's a primary advertisement.

[00:20:51] Speaker 01:
I've never seen that.

[00:20:54] Speaker 01:
The reason you buy this device is because it contains a preloaded map.

[00:20:58] Speaker 01:
You can turn the device on and it helps you navigate from point A to point B. What this patent is concerned with is collecting new data points you can then use all within the device itself to update the map.

[00:21:12] Speaker 02:
But this one works with newly collected data too.

[00:21:14] Speaker 02:
You just get it from somewhere else.

[00:21:17] Speaker 02:
I mean, if I have a TomTom device in my car, I can set it so that it tells me where the traffic is and stay away from I-95 today and that kind of thing.

[00:21:27] Speaker 02:
So in that sense, it's dynamic.

[00:21:30] Speaker 02:
You're not just using the maps that are preloaded.

[00:21:33] Speaker 01:
That's correct, but that's a completely different data set.

[00:21:36] Speaker 01:
The fact that there is different technology in the device that lets you know there's a traffic jam on Interstate 95 or on the Beltway has nothing to do with what's at issue in this case.

[00:21:46] Speaker 01:
But traffic patterns are at issue, are they not?

[00:21:49] Speaker 01:
Well, what's at issue here is a method for generating and updating data.

[00:21:52] Speaker 01:
The fact that that data may then be used to model traffic patterns or other uses, that's not actually claimed by claim one.

[00:21:59] Speaker 01:
What claim one is, it's a method for generating and updating data.

[00:22:04] Speaker 01:
You collect travel distance data.

[00:22:06] Speaker 01:
You then identify what are the nodes in the device we talked about nodes earlier.

[00:22:11] Speaker 01:
You drop the non-characteristic points, you create a section data, and you create a section data file.

[00:22:18] Speaker 01:
From that, you can then build the maps up, and that is fundamentally different from what TomTom is doing.

[00:22:23] Speaker 01:
TomTom devices come with preloaded maps.

[00:22:25] Speaker 01:
The fact that there is some background data collection, the device itself never uses its own collected data to model what happens on the TomTom data.

[00:22:38] Speaker 04:
TomTom produces a traffic map, right?

[00:22:42] Speaker 01:
TomTom produces a lot of maps, so that's not claimed by the patents.

[00:22:47] Speaker 01:
I mean, what TomTom is doing in the Netherlands would not be... I don't think an importation of data is an infringing act under Section 271G.

[00:22:56] Speaker 01:
I mean, that issue is not before the court, but I would submit that that is not a... You raised it.

[00:23:03] Speaker 01:
Well, we can step back here.

[00:23:07] Speaker 01:
We don't need to go to the point of even what is or is not an infringing act, because Dr. Adoff argued in January of 2013, when we first sought summary judgment, that every single step of the claim has to happen inside the device.

[00:23:23] Speaker 01:
It was at, again, 8272 to 73, 8274, 8275.

[00:23:30] Speaker 01:
There is no question that Dr. Adolph took the position to get around summary judgment in the first instance that everything is happening inside the device.

[00:23:41] Speaker 01:
So Dr. Adolph can't now come up here and say, well, I want to go now argue for a broader claim construction because we would have never been here in the first instance had Dr. Adolph not taken the position that everything is happening in the device.

[00:23:52] Speaker 01:
And moreover, that is consistent with the specification which teaches

[00:23:58] Speaker 01:
The method of the invention is characterized by the fact that in a mobile unit, travel distance data are generated and are used for automatically generating a digital route network, which maps the section of the route that the mobile unit is covered.

[00:24:12] Speaker 01:
There is never an automatic generation of data inside the TomTom device.

[00:24:17] Speaker 01:
It's simply latent data collection.

[00:24:21] Speaker 02:
Is the definition of node immaterial?

[00:24:25] Speaker 01:
It is not.

[00:24:26] Speaker 01:
It's not immaterial.

[00:24:28] Speaker 01:
The reason is that, because as we mentioned earlier, the TomTom device simply collects points in one second for five second intervals, depending on your model.

[00:24:37] Speaker 01:
And that is not collecting nodes.

[00:24:39] Speaker 01:
The district court correctly recognized that the specification teaches the definition of a node to be an intersection, an origin, a destination.

[00:24:48] Speaker 04:
It doesn't limit it that way.

[00:24:49] Speaker 04:
It also does a time collection in a straight line, does it not?

[00:24:54] Speaker 01:
It does not, and for two reasons.

[00:24:56] Speaker 01:
The specification refers to both points and nodes, but only nodes are claimed.

[00:25:03] Speaker 01:
Secondly, the claim itself actually refers to collecting data at a predetermined time interval.

[00:25:10] Speaker 01:
That's a separate limitation of the claim.

[00:25:13] Speaker 01:
The fact that you collect a lot of data points at a predetermined time interval

[00:25:16] Speaker 01:
Not all data points are nodes.

[00:25:18] Speaker 01:
A node is a subset of points.

[00:25:20] Speaker 01:
It's a type of point.

[00:25:21] Speaker 02:
How do we know from the intrinsic evidence that we have to have a directional change for something to constitute a node?

[00:25:27] Speaker 02:
Well, it's in column 10 of the... The same authority counsel cited, so tell me why her reading of it is wrong.

[00:25:37] Speaker 01:
Well, if you look again at A78, column 10, what it says is

[00:25:50] Speaker 01:
Characteristic route nodes, PI and PK, are nodes where the vehicle direction changes by more than a given predetermined value, or nodes at the intersection of sections oriented in different directions, or nodes that are otherwise conspicuous.

[00:26:06] Speaker 01:
Those are, that is what characteristic means.

[00:26:08] Speaker 02:
Yeah, what does otherwise conspicuous mean?

[00:26:10] Speaker 01:
Well, in the context of the invention, what you're trying to do here is recreate, use the data points you collect to recreate, to build a map

[00:26:16] Speaker 01:
from scratch.

[00:26:17] Speaker 01:
So if you're driving in a straight line, that doesn't matter to you whether you're in a straight line, if the road curves, if you make a turn.

[00:26:24] Speaker 04:
Really?

[00:26:24] Speaker 04:
What if you want to go back the way you came?

[00:26:28] Speaker 01:
But the only point you then need, if the line is straight, you would just need the starting point and the ending point, because you would know that your point, your direction of travel never changed, so you just reversed the direction of travel.

[00:26:40] Speaker 02:
If you want to look ahead though, I mean how do you know that if you don't have

[00:26:45] Speaker 02:
data that tells you, if you go for another 10 miles, you're going to keep going in a straight line.

[00:26:49] Speaker 02:
I mean, in other words, if the note is simply to say, so here you are at this particular point, the road goes straight, the road goes to the side, why is it limited to directional changes?

[00:27:03] Speaker 01:
It's not limited to directional changes.

[00:27:04] Speaker 01:
It can also include the origin where you start at your destination.

[00:27:08] Speaker 01:
It can include a change in value.

[00:27:11] Speaker 01:
So the point is, I know where I started, where I ended.

[00:27:14] Speaker 01:
and what turns I made along the route.

[00:27:16] Speaker 01:
So it's not just limited to changes in direction.

[00:27:19] Speaker 01:
It's your starting point.

[00:27:20] Speaker 02:
So the district court said it was.

[00:27:22] Speaker 02:
So that's why I started by saying, is that an immaterial mistake?

[00:27:26] Speaker 02:
Because the claim construction says that there has to be a change of direction.

[00:27:32] Speaker 01:
That's one of three options.

[00:27:33] Speaker 01:
It has to be the starting point, the ending point, or the change in direction.

[00:27:36] Speaker 02:
Right.

[00:27:36] Speaker 02:
And so you're saying that's correct?

[00:27:38] Speaker 01:
That is correct.

[00:27:39] Speaker 01:
Those are the three circumstances in which you have those.

[00:27:42] Speaker 02:
Not points along a straight line.

[00:27:44] Speaker 01:
Correct, because there's no reason to have a point along a straight line.

[00:27:47] Speaker 01:
A point is not a node.

[00:27:50] Speaker 02:
Well, how do we know that?

[00:27:51] Speaker 02:
I mean, what tells us, what teaches us that points along a straight line are not important or not possible?

[00:27:57] Speaker 01:
Well, if we take a look at the claim itself, what the claim refers to is you generate and store travel distance data in at least a predetermined time interval.

[00:28:05] Speaker 04:
But you're also generating traffic information at the same time.

[00:28:11] Speaker 04:
Are you not?

[00:28:12] Speaker 01:
Well, that's not reflected in claim one.

[00:28:13] Speaker 04:
That could be a consequence, or that could be a... Well, I'm reading from column 10, where it gives that Christmas versus the 24th, 26th, and the 27th.

[00:28:29] Speaker 04:
That's traffic data.

[00:28:32] Speaker 01:
That is correct, but that is not claimed by claim one.

[00:28:35] Speaker 01:
That is the use of why you may want to collect this data, and that's reflected in some of the dependent claims.

[00:28:41] Speaker 01:
But claim one is simply you collect a lot of points at a predetermined time interval, decide which points are nodes, and then from the nodes, you stitch together the route that you took to get from point A to point B, knowing that you made certain turns, there were certain curves or bends in the road.

[00:28:58] Speaker 01:
So then, as your example states, you can then use those nodes to get back, but you drop everything else that happens in between.

[00:29:07] Speaker 01:
And those processes are simply not

[00:29:11] Speaker 01:
not happening.

[00:29:11] Speaker 01:
And also, if we take a look at... Wrap up the council.

[00:29:14] Speaker 01:
Okay.

[00:29:15] Speaker 01:
One less comment.

[00:29:15] Speaker 01:
At A78, if we look at the preceding paragraph we just took a look at, it says that you drop, it refers to compressing the travel distance data by dropping individual points, PI, and choosing those points which are most characteristic.

[00:29:31] Speaker 01:
So that confirms that points are a broader concept in a node, which is only an origin, a destination,

[00:29:40] Speaker 01:
for a change in travel direction.

[00:29:43] Speaker 01:
So for those reasons and as well as the fact that the claimed method of generating and updating data for use in a destination tracking system is distinguished over the prior art from such methods of generating data that worked on systems with preloaded maps, the court's judgment should be affirmed.

[00:30:03] Speaker 01:
Thank you.

[00:30:05] Speaker 04:
I'm going to give you three and a half minutes.

[00:30:08] Speaker 04:
Council went over.

[00:30:09] Speaker 04:
Three and a half.

[00:30:11] Speaker 00:
Thank you, Your Honor.

[00:30:11] Speaker 00:
I'll try not to use all of it.

[00:30:15] Speaker 00:
Briefly on this question about what happens in Amsterdam versus here in the United States, TomTom has consistently tried to shove limitations in claim 11 into claim 1.

[00:30:27] Speaker 00:
When they talk about activity that occurs outside of the United States, they're not talking about data collection.

[00:30:34] Speaker 00:
They're talking about merging data collected from multiple devices and learning from that merged data.

[00:30:41] Speaker 00:
That is not what claim one is about.

[00:30:42] Speaker 00:
That is what a dependent claim is about.

[00:30:44] Speaker 00:
And we should not be importing that into the preamble as part of our discussion.

[00:30:49] Speaker 00:
Secondly, when we talk about TomTom's technology, all the data collection activity in the body of claim one does occur on the device.

[00:30:57] Speaker 00:
Otherwise, what good is it to send it back to Amsterdam and analyze it with all of the other data?

[00:31:04] Speaker 00:
And it is selected from all of the data collected as travel distance data.

[00:31:09] Speaker 00:
There are selections to get rid of data that's bad because you go under a bridge or into a tunnel.

[00:31:14] Speaker 00:
You get bad data points all the time.

[00:31:16] Speaker 00:
The selection gets rid of the bad data.

[00:31:19] Speaker 00:
And that's what the second limitation in Claim One calls.

[00:31:21] Speaker 02:
There's two-way communication.

[00:31:23] Speaker 02:
In other words, the individual devices communicate to Amsterdam, and then Amsterdam communicates to the individual devices.

[00:31:29] Speaker 00:
That's right.

[00:31:30] Speaker 00:
There's a feedback loop.

[00:31:31] Speaker 00:
And that is why they can offer such services as HD traffic.

[00:31:35] Speaker 00:
which as their website states and as disclosed in the summary judgment papers, provides real-time traffic updates to users.

[00:31:43] Speaker 00:
So it's just not correct to say that the device doesn't gain anything from the data it collects.

[00:31:49] Speaker 00:
It does gain it after that data is compared with others and some larger traffic pattern, excuse me, information is defined.

[00:31:58] Speaker 00:
Secondly, this question about... Thirdly, you already did second.

[00:32:01] Speaker 04:
I'm sorry, Your Honor.

[00:32:03] Speaker 00:
Third, Your Honor, they sell CDs with updated maps in the United States and they sell updated maps electronically all the time.

[00:32:12] Speaker 00:
So it's not correct to say that they don't sell any information or product in the United States.

[00:32:18] Speaker 00:
As Tom Tom noted, that's outside the scope here.

[00:32:21] Speaker 00:
But most importantly, let's talk about what happens with a preamble and when it should be a limitation.

[00:32:27] Speaker 00:
There must be clear directive in the intrinsic evidence to make the entire preamble

[00:32:33] Speaker 00:
a limitation.

[00:32:34] Speaker 00:
That's not present here, and particularly with the aspect of the preamble that was never discussed in the prosecution history and is merely generating and storing data for use in a system.

[00:32:46] Speaker 00:
The system language is not part of the method that's claim one.

[00:32:51] Speaker 00:
Thank you.