[00:00:00] Speaker 03:
Both counsel, the case is taken under submission.

[00:00:02] Speaker 03:
The next case for today is 2015-1732, Advanced Ground Information versus Life 360.

[00:00:36] Speaker 03:
Tell me how you say your name.

[00:00:39] Speaker 02:
Bad knock, Your Honor.

[00:00:40] Speaker 02:
Bad knock.

[00:00:40] Speaker 02:
Just like knocking on the door.

[00:00:44] Speaker 02:
Good morning.

[00:00:46] Speaker 02:
May it please the Court, the issue in this case is whether or not a claim limitation can be construed as a means plus function limitation when it does not use the term means.

[00:00:59] Speaker 02:
It was never intended to be a means.

[00:01:00] Speaker 01:
How do you deal with

[00:01:02] Speaker 01:
your expert, Dr. Goldberg, saying that he was not aware whether the term symbol generator has a meaning in computer science?

[00:01:12] Speaker 02:
He didn't actually say that, Your Honor.

[00:01:14] Speaker 02:
That's one of the key points why we think the district court clearly erred here.

[00:01:18] Speaker 02:
What he said is that he was, and I can actually read the testimony, generator is a term of art, symbol is a term of art,

[00:01:29] Speaker 02:
Whether you heard symbol generators in the course of studying computer science, I'm not aware.

[00:01:35] Speaker 02:
But certainly, in the context of the patent specification in the claim, one of the skilled in the art would understand what a symbol generator is.

[00:01:44] Speaker 02:
There's a transcript there where it said when, but it clearly means what.

[00:01:48] Speaker 02:
What a symbol generator is.

[00:01:49] Speaker 02:
So what he said was that, OK, the term exactly, those two words, were not used in the past.

[00:01:56] Speaker 02:
But person skilled in the art.

[00:01:59] Speaker 02:
would know exactly what it is when they heard it.

[00:02:02] Speaker 02:
And that's the standard, Your Honor.

[00:02:03] Speaker 02:
There isn't any requirement that the same words be used in the past.

[00:02:08] Speaker 02:
In fact, there's many phrases that this Court has addressed in this issue, where lots of explanatory modifying language was used.

[00:02:18] Speaker 02:
And yet the point is, after reading the patent, does a person's skill in the art understand now that it is structure, and that it is pre-existing structure?

[00:02:30] Speaker 02:
Because I think that's what you have here.

[00:02:32] Speaker 02:
There's three limitations at issue.

[00:02:35] Speaker 02:
There is symbol generator, CPU software for pulling a network, CPU software for exchanging data.

[00:02:44] Speaker 01:
Each one of these things was... If we affirm the court blow on symbol generator, we don't even need to reach CPU software.

[00:02:54] Speaker 02:
That's correct.

[00:02:55] Speaker 02:
Symbol generators in each of the claims at issue.

[00:02:58] Speaker 02:
And symbol generator is, the point is, is that if you understand what it means now, person skilled in the art, and the evidence on this is overwhelming, Your Honor.

[00:03:09] Speaker 02:
The expert testified again and again that these terms, whether they were used before, would be understood by a person skilled in the art now, after reading the patent, to connote pre-existing software tools.

[00:03:27] Speaker 02:
Okay?

[00:03:27] Speaker 02:
They come on every device.

[00:03:30] Speaker 02:
The idea of a little code snippet in the library, you know, that you use to take a symbol out of a graphics library, position it on the screen at an XY coordinate.

[00:03:45] Speaker 02:
That's so basic.

[00:03:47] Speaker 02:
It's a tool that already exists.

[00:03:49] Speaker 02:
It comes with a device.

[00:03:50] Speaker 02:
It's come with every computer for years.

[00:03:52] Speaker 01:
A symbol generator is a means for generating symbols.

[00:03:55] Speaker 02:
It does do that, your honor, and very often.

[00:03:58] Speaker 01:
That's a description of the function.

[00:04:00] Speaker 02:
Well, but you can take any term like detect mechanism and say, well, it's a mechanism that detects something, or digital detector is a detector that detects something.

[00:04:11] Speaker 02:
You can turn it around.

[00:04:13] Speaker 02:
But the issue is, if it's a pre-existing tool, like in a toolbox, you can have hardware tools and you can have software tools.

[00:04:23] Speaker 02:
And when you get a computer,

[00:04:24] Speaker 02:
For decades, when you get a computer, they come with certain tools already there for the programmer.

[00:04:31] Speaker 02:
And one of the tools that's already there is this idea of taking a symbol out of a graphics library and positioning it on a screen.

[00:04:42] Speaker 02:
That's existing.

[00:04:44] Speaker 02:
It's not something that the programmer creates or devises.

[00:04:49] Speaker 02:
It's already existing.

[00:04:51] Speaker 02:
And it's structured.

[00:04:52] Speaker 02:
And what I was going to say,

[00:04:55] Speaker 02:
I think the summary of the evidence at pages four and five in our brief on this is really decisive.

[00:05:07] Speaker 02:
At the hearing, the question is, so would symbol generators as used in these patents, 728 and 681, have connoted any particular structure to one of skill in the arc?

[00:05:19] Speaker 02:
Answer, sure.

[00:05:20] Speaker 02:
It's the software that is used as we talked about the system

[00:05:24] Speaker 02:
for displaying the symbols, the images for each user on the screen.

[00:05:29] Speaker 02:
And I would note that every manufacturer of a device that can display stuff on the screen provides a library of software modules that a user or developer can use to display images on the screen.

[00:05:42] Speaker 02:
Then later on, so question, so to be clear, Dr. Goldberg, does this claim language symbol generator refer to one of ordinary skill to existing specific algorithms

[00:05:54] Speaker 02:
or to simply advise him what he might be able to devise?

[00:05:58] Speaker 02:
Answer, no, it refers to the use of software libraries that every device has in order to display an image on the screen at the right coordinates.

[00:06:07] Speaker 02:
At this point, the court comes in and says, well, let me ask you on the last slide, where does this suggest that the software would be available from the manufacture of the device as opposed to being part of this invention?

[00:06:19] Speaker 02:
Witness Dr. Goldberg.

[00:06:21] Speaker 02:
because just the act of displaying images on a screen is part of every device.

[00:06:26] Speaker 02:
You already get that.

[00:06:27] Speaker 02:
That's not part of our invention that you have to do.

[00:06:29] Speaker 02:
In fact, our invention is a combination claim here, you know, with lots of hardware elements, lots of software elements.

[00:06:37] Speaker 02:
Basic elements, of course they're old.

[00:06:39] Speaker 02:
You know, the idea that you take an image out of the library, put it on the screen, that's been true for computers for decades, okay?

[00:06:50] Speaker 02:
The idea that you have a telephone and that you want to pull the network by sending a message to certain phone numbers.

[00:06:59] Speaker 02:
Every phone has been able to do that.

[00:07:00] Speaker 02:
That comes with a device.

[00:07:02] Speaker 02:
That's not our invention, and that's not something that you have to do.

[00:07:05] Speaker 02:
That's a structure.

[00:07:06] Speaker 02:
It's a software structure.

[00:07:08] Speaker 02:
But it's still a structure.

[00:07:10] Speaker 02:
It's something that already exists.

[00:07:13] Speaker 02:
The court wanted to be clear about that.

[00:07:15] Speaker 02:
It went on and said, was this true in 2006?

[00:07:18] Speaker 02:
And the witness said, oh, yes, going back to the 60s.

[00:07:22] Speaker 02:
So it's very clear, we submit, Your Honor, that the witness was testifying here.

[00:07:29] Speaker 02:
These, symbol generator and the other two terms as well, they denote existing pieces of code that already comes with a device.

[00:07:38] Speaker 02:
It's not just a question of how you use it.

[00:07:40] Speaker 02:
At one point, the court also said, well, look, I think he's talking about enablement because he was saying someone skilled in the art could use this stuff.

[00:07:49] Speaker 02:
not create or devise it.

[00:07:51] Speaker 02:
The thing already exists.

[00:07:52] Speaker 02:
If you look at the testimony, the testimony is its structure.

[00:07:56] Speaker 02:
It already exists.

[00:07:58] Speaker 02:
Sure, someone can easily use it, but that doesn't mean it relates to enablement.

[00:08:03] Speaker 02:
They're not talking about how to create it.

[00:08:05] Speaker 02:
It already exists.

[00:08:09] Speaker 02:
Now, the other thing that's a clear error is the presumption.

[00:08:13] Speaker 02:
Don't forget, we didn't use the term means.

[00:08:16] Speaker 02:
There is a presumption here

[00:08:17] Speaker 02:
that it's not means plus function.

[00:08:20] Speaker 02:
And the court simply didn't apply that presumption.

[00:08:23] Speaker 02:
They gave lip service to it in summarizing the legal part.

[00:08:28] Speaker 02:
But when you look at the court's analysis, it clearly goes through trying to discount what Dr. Goldberg said or say it related to enablement or whatever.

[00:08:39] Speaker 02:
And he then says at one point he's not persuaded by it.

[00:08:44] Speaker 02:
But the fact is that even if he's not persuaded

[00:08:47] Speaker 02:
by Dr. Goldberg's testimony, and you take it away, it still can't be means plus function, because there's a presumption here.

[00:08:57] Speaker 02:
In effect, it's clear error when you have a presumption and you have all this testimony from the only person skilled in the art who's testifying, because the defendants put in no evidence, and they're not talking about the intrinsic evidence here.

[00:09:14] Speaker 02:
In that situation, with all that evidence and the presumption,

[00:09:18] Speaker 02:
for a lay judge to say, well, I'm not persuaded by the expert.

[00:09:24] Speaker 02:
And it sounds functional to me.

[00:09:26] Speaker 02:
Therefore, it's means plus function.

[00:09:30] Speaker 02:
The law doesn't permit that.

[00:09:31] Speaker 02:
This court in Williamson did say the presumption is no longer strong.

[00:09:35] Speaker 02:
But it's still there.

[00:09:37] Speaker 02:
It was the defendant's burden to show that these terms do not connote structure.

[00:09:42] Speaker 02:
And they didn't do it.

[00:09:43] Speaker 02:
They put in no evidence.

[00:09:45] Speaker 02:
The only two places,

[00:09:46] Speaker 02:
where the district court tried to find some support for that conclusion is what you decided, Your Honor, where he said basically that Dr. Goldberg said these terms, he's not sure if he heard them in the past, and, you know, he's not sure if he heard them in the past, but together he said they definitely would have meaning to a person skilled in the art.

[00:10:12] Speaker 02:
And because that passage does not say,

[00:10:16] Speaker 02:
that the terms have no clear meaning.

[00:10:19] Speaker 02:
It does not say that the terms, excuse me, that the terms, you know, would be a coined term lacking clear meaning.

[00:10:31] Speaker 02:
He never said any of those things.

[00:10:33] Speaker 02:
He simply said, in fact, I can read just what it is.

[00:10:39] Speaker 02:
Well, I did.

[00:10:42] Speaker 02:
One of skill in the art would understand what a symbol generator is.

[00:10:46] Speaker 02:
He said, generator is a term of art, symbol is a term of art.

[00:10:50] Speaker 02:
Whether you've heard symbol generator in the course of studying computer science, I'm not aware.

[00:10:55] Speaker 02:
But certainly in the context of the patent specification and claim, one of the skill in the art would understand what a symbol generator is.

[00:11:04] Speaker 02:
So I submit, Your Honor, the same errors were made with the CPU software limitations as well.

[00:11:12] Speaker 02:
They had no evidence.

[00:11:13] Speaker 02:
Dr. Goldberg said they were existing pieces of code.

[00:11:18] Speaker 02:
I think in some, Your Honor, what we have is the disputed terms are all referred to well-known existing software tools.

[00:11:31] Speaker 02:
And incidentally, the Court has talked of the structure doesn't have to be physical hardware, even if this software is physically on a chip.

[00:11:39] Speaker 02:
You know, things like the Apple Motorola case certainly talked about software rules, programming rules, things like that.

[00:11:45] Speaker 02:
So the issue is not whether the exact two words were used in the past.

[00:11:49] Speaker 02:
The issue is was there really a structure here in the past?

[00:11:53] Speaker 02:
And here there really was.

[00:11:54] Speaker 02:
The evidence is overwhelming.

[00:11:55] Speaker 02:
Every device comes with the module you need to send a message out to Polar Network or to open a channel to exchange data with other phone numbers.

[00:12:07] Speaker 02:
or to simply grab a symbol out of the library and put it on the screen.

[00:12:12] Speaker 02:
You would hopelessly clutter specifications if you had algorithms for things like dialing the phone, sending a message.

[00:12:19] Speaker 02:
You don't need algorithms for that.

[00:12:21] Speaker 02:
These things refer to basic structure.

[00:12:24] Speaker 03:
You're well into your rebuttal time.

[00:12:25] Speaker 03:
Would you like to continue using it?

[00:12:28] Speaker 02:
No, Your Honor, thank you for the reminder.

[00:12:30] Speaker 02:
I will reserve the rest of my time.

[00:12:34] Speaker 03:
Mr. Brain?

[00:12:37] Speaker 03:
Please proceed.

[00:12:41] Speaker 00:
Thank you, and may it please the court.

[00:12:44] Speaker 00:
The claim terms at issue in this appeal are generic placeholder words for unspecified software, hardware, or perhaps some combination of the two we just don't know from the intrinsic or extrinsic record here.

[00:12:56] Speaker 00:
These phrases are tantamount to using the word means because they are expressly claimed in terms of functions and in terms of results, not in terms of any structure.

[00:13:05] Speaker 00:
And that kind of structurally generic claiming style is exactly what overcomes the presumption in Williamson and invokes section 112.6.

[00:13:15] Speaker 00:
Now Aegis's appeal hinges almost entirely on the testimony of its expert Dr. Goldberg.

[00:13:22] Speaker 00:
The district court was not required to accept that testimony as true or as probative and had good reason not to in this case.

[00:13:29] Speaker 00:
For one, the bulk of the testimony went to an issue that was beside the point

[00:13:33] Speaker 00:
went to the issue of whether a person skilled in the art would be able to implement the functionality in software or in hardware based on the knowledge that they have, not to the central question under Williamson, which is, and I'm quoting here, whether the words of the claim are understood as the name for structure.

[00:13:50] Speaker 00:
The words of the claim at issue here, symbol generator, Aegis's own expert admits, is not a name for anything that he is aware of in the field of computer science.

[00:13:59] Speaker 01:
The fact that he- In two different places, and it's different.

[00:14:02] Speaker 00:
That's correct, Your Honor.

[00:14:03] Speaker 00:
And I think it's worth noting that that fact finding is based on the extrinsic record and is subject to clear error review.

[00:14:09] Speaker 00:
And not only does the testimony we think speak very well for itself, but here the district court not only reviewed testimony in a declaration, but also heard Dr. Goldberg testify live and in fact questioned Dr. Goldberg.

[00:14:21] Speaker 00:
So when this district judge says he finds that testimony unpersuasive and finds that this is a coined term that lacks a clear meaning,

[00:14:28] Speaker 00:
We think AGES has a very heavy burden on appeal to justify setting aside that finding.

[00:14:33] Speaker 03:
If this case had been one where symbol generator was a particular snippet of code that was well understood to operate according to a particular algorithm known by people of skill in the art, and if that's what the testimony was, would this be a different case?

[00:14:50] Speaker 03:
And I ask you that because I'm just a little bit concerned that if I take your arguments to the extreme that all software is now 112.6,

[00:14:57] Speaker 03:
and always requires disclosure of an algorithm.

[00:14:59] Speaker 03:
And I'm not sure that that's a place that I'd want to go on these facts.

[00:15:04] Speaker 03:
It may not be necessary, so you tell me what your thoughts are.

[00:15:06] Speaker 00:
Sure.

[00:15:07] Speaker 00:
Well, I agree with you, and I don't think we need to go to that extreme to reach the correct result here or under the law.

[00:15:11] Speaker 00:
I actually think the court's recent media rights decision is very helpful in this regard, where the term was compliance mechanism.

[00:15:18] Speaker 00:
And when it's a term that is essentially coined for purposes of the patent, it doesn't have a clear meaning outside the context of the patent.

[00:15:25] Speaker 00:
This court in media rights observed

[00:15:27] Speaker 00:
There was also nothing definitional about the term that you could devise from the intrinsic record.

[00:15:32] Speaker 00:
And the court said, and I'm quoting here, none of the passages in the specification, however, define compliance mechanism in specific structural terms.

[00:15:40] Speaker 00:
So the analog here would be, we have a term symbol generator, and we know what it does, but we don't know what it is.

[00:15:46] Speaker 00:
We can, even if we were to assume that it connotes some sort of software function,

[00:15:52] Speaker 00:
we can avoid invoking section 112.6 if there's some definitional indication in the spec about what that symbol generator is.

[00:16:00] Speaker 03:
Or if the testimony had been the term symbol generator is known in the art to be a particular snippet of software that follows a particular algorithm.

[00:16:11] Speaker 00:
I think that would be helpful.

[00:16:12] Speaker 00:
I still think that if there was nothing in the intrinsic record whatsoever to support that, it would be

[00:16:17] Speaker 03:
Why?

[00:16:17] Speaker 03:
If a person of skill in the art says everyone of skill in the art would understand this term to have a plain and ordinary meaning in the art and here's what it is, why would it need to be in the intrinsic record?

[00:16:28] Speaker 00:
Well, I do think media rights is looking for something in specific structural terms from the intrinsic record when it is a coined term.

[00:16:35] Speaker 03:
Well, then it wouldn't be a coined term, right?

[00:16:37] Speaker 03:
Under my hypothetical, if everyone of skill in the art would recognize these two words as having a precise meaning in the art,

[00:16:44] Speaker 00:
And if that were true, yes, absolutely.

[00:16:46] Speaker 00:
Under that hypothetical, I think that the burden to avoid invocation, I'm sorry, the showing to avoid invocation could be made.

[00:16:53] Speaker 00:
But here, we don't have anything other than the expert, Dr. Goldberg's, completely uncorroborated and conclusory assertion.

[00:17:00] Speaker 00:
Essentially, everything that was just argued by my lawyer.

[00:17:03] Speaker 01:
But he also says he doesn't know what the phrase means.

[00:17:06] Speaker 00:
Right.

[00:17:06] Speaker 00:
And I think that the district court, looking at that testimony, combined with all of the other

[00:17:11] Speaker 00:
assertions made by Dr. Goldberg that are not in any way corroborated was more than enough for the district court to reject that testimony as unpersuasive and find that the term didn't have a clear meaning.

[00:17:23] Speaker 00:
Dr. Goldberg, for example, showed not one example of what one of these software graphics libraries would be.

[00:17:28] Speaker 00:
He simply proclaims that a person skilled in the art would know what it is.

[00:17:33] Speaker 03:
And back to your point, Judge Moore, I do think that it's important that Williamson... And maybe if the district court judge on this record had gone the other way,

[00:17:40] Speaker 03:
Under a clear error, we might have to affirm that too on this record.

[00:17:44] Speaker 03:
But that's just the nature of the beast.

[00:17:46] Speaker 03:
It's a factual question.

[00:17:47] Speaker 03:
And his testimony is a bit equivocal.

[00:17:50] Speaker 00:
Yes, I agree.

[00:17:51] Speaker 00:
I think the fact that the bulk of the evidence that's most pertinent to the question under Williamson is extrinsic leads to a fairly highly deferential standard in this case.

[00:18:03] Speaker 00:
So looking at the term symbol generator, which as Judge Wallach noted, this does affect all the claim terms on appeal in his dispositive.

[00:18:11] Speaker 00:
The way that these terms are phrased in the claims are incredibly functional.

[00:18:15] Speaker 00:
It's a symbol generator quote for generating symbols, a symbol generator quote that can generate symbols.

[00:18:21] Speaker 00:
There's no definition or indication in the specification of what the symbol generator is.

[00:18:26] Speaker 00:
All we know from the claims is that it's for generating symbols.

[00:18:29] Speaker 00:
And all we see in the specification is that it's some black box from which a symbol is ultimately going to be generated.

[00:18:36] Speaker 00:
Those kinds of generic placeholders have been recognized in cases like Williamson,

[00:18:40] Speaker 00:
and in cases like media rights as being modules, essentially, that are unspecified, and therefore don't give a person skilled in the art a sufficiently definite meaning as to what the structure, connoted by that term, is.

[00:18:55] Speaker 00:
The patent, we think it's important, is silent about any of the structure that Aegis's expert identified as supposedly being the structure.

[00:19:03] Speaker 03:
Well, they've already conceded that on appeal, so that argument

[00:19:06] Speaker 03:
you don't need to go into, right?

[00:19:07] Speaker 03:
Am I wrong?

[00:19:08] Speaker 03:
Haven't they conceded an appeal that if this is 112-6, there is no structure?

[00:19:13] Speaker 03:
They're not contesting that.

[00:19:14] Speaker 00:
Yes.

[00:19:14] Speaker 00:
Yes, that's correct, Your Honor.

[00:19:15] Speaker 00:
So first of all, the indefiniteness prong to question, you're right.

[00:19:19] Speaker 00:
This court doesn't need to reach it in light of the concession.

[00:19:22] Speaker 00:
But what I was getting at is that the district court made a specific finding on this record that those structures are not mentioned by the patents or disclosed.

[00:19:29] Speaker 00:
And we do think that there's a little bit of overlap with that finding and the threshold invocation question

[00:19:34] Speaker 00:
As this court in Williamson noted, citing function media, it said that, quote, the fact that one skilled in the art could program a computer to perform the recited functions cannot create structure where none is otherwise disclosed.

[00:19:50] Speaker 00:
And we think that's consistent with what media rights had to say about looking for some indication of what this term might mean.

[00:19:58] Speaker 03:
This is one of these things, sit down when you're ahead.

[00:20:01] Speaker 03:
But why in the world did you

[00:20:03] Speaker 03:
just suggests to me that deciding whether there's structure in the specification or not is something to which we would give deference.

[00:20:10] Speaker 03:
Why is that not part of claim construction, which is the legal part, deciding what structure in the spec corresponds to the 112.6?

[00:20:17] Speaker 03:
It's always been in the past.

[00:20:18] Speaker 03:
I mean, are you of the view that something has changed?

[00:20:20] Speaker 03:
We have lots and lots of cases that say that's part of the legal question.

[00:20:24] Speaker 00:
And Your Honor, I did not mean to imply that the finding as to what's in the intrinsic record is entitled to deference.

[00:20:29] Speaker 00:
That's not our position.

[00:20:29] Speaker 03:
So that wouldn't be a finding then.

[00:20:30] Speaker 03:
It would be a legal conclusion.

[00:20:32] Speaker 00:
Yes, what's in the specification is a legal conclusion.

[00:20:36] Speaker 00:
I was just pointing out that district court did adopt that, and that there is some overlap between a finding like that going to the issue of indefiniteness under prong two.

[00:20:43] Speaker 03:
I might want to stop calling it a finding, because findings are what district courts do when they have facts.

[00:20:47] Speaker 03:
Legal conclusion, legal determination, or something like that.

[00:20:51] Speaker 00:
OK.

[00:20:51] Speaker 00:
I can agree with that, Your Honor, certainly.

[00:20:53] Speaker 00:
As to the issue of whether the presumption was applied by the district court, I do just want to briefly comment

[00:21:02] Speaker 00:
We do not think that the district court did anything inappropriate in multiple places in its opinion.

[00:21:08] Speaker 00:
The district court observed that there was a presumption in place.

[00:21:11] Speaker 00:
At the time, it was pre-Williamson, and the presumption was arguably stronger, although the district court notably did not mention any particular strength of the presumption in its decision.

[00:21:20] Speaker 00:
AGIS is positioned that Life360 could not possibly overcome the presumption because we did not offer our own testifying expert we think is misplaced.

[00:21:28] Speaker 00:
What we did offer is considerable evidence from the intrinsic record to the district court to show that there was highly functional claim language in terms of defining the symbol generated in the CPU software terms.

[00:21:42] Speaker 00:
We offered other evidence of the intrinsic record being silent about any structure whatsoever or any definition.

[00:21:47] Speaker 00:
And most importantly, as we talked about earlier, we did offer critical evidence in the way of admissions from Aegis's expert, proving what is essentially a negative, that these terms do not mean

[00:21:58] Speaker 00:
anything to a person skilled in the art and are only coined terms.

[00:22:01] Speaker 00:
We don't see why we would have to additionally bring in yet another expert to simply say what we've already gotten AGIS's expert to admit.

[00:22:10] Speaker 00:
I agree with AGIS's counsel that the issues are largely overlapping between CPU software and the symbol generator terms, so if there are no questions on the CPU software terms, I can yield the rest of my time.

[00:22:27] Speaker 03:
Do we have some rebuttal time yet?

[00:22:33] Speaker 02:
Thank you, Your Honor.

[00:22:36] Speaker 02:
To be clear, we don't dispute that there is a deferential standard on the underlying fact finding.

[00:22:42] Speaker 02:
I think whether or not there's a presumption, and whether that should govern, I think that might be a question of law.

[00:22:49] Speaker 02:
But we're basically talking about the judge's finding, which we say is clearly Aramius,

[00:22:56] Speaker 02:
that person skilled in the art would not understand the meaning of these terms.

[00:23:00] Speaker 02:
With all due respect, we don't think the testimony is equivocal.

[00:23:04] Speaker 02:
It's just not.

[00:23:05] Speaker 02:
If you look at the summary of testimony, pages four and five of a reply brief, it's overwhelming.

[00:23:11] Speaker 02:
And the only two things the judge pointed to don't say that this was a coined term or that it lacked clear meaning.

[00:23:19] Speaker 02:
They just don't say that.

[00:23:20] Speaker 02:
The judge is wrong when he drew that conclusion.

[00:23:23] Speaker 02:
What he said was, I'm not sure, I'm not aware whether the word generator and symbol were used together in the past, but persons who read this... Or appear in any technical treatise, or appear in any dictionary, or were ever taught to people who study software in college.

[00:23:39] Speaker 03:
Those were all parts of his testimony as well.

[00:23:41] Speaker 03:
He's not aware of those two terms being put together in any of those places.

[00:23:46] Speaker 02:
Correct.

[00:23:46] Speaker 02:
But in the context of this patent, Your Honor, he said,

[00:23:50] Speaker 02:
that person skilled in the art reading this pan would know immediately what symbol generator is, and that it's something that already exists.

[00:23:59] Speaker 01:
But he didn't provide any evidence of that other than his testimony.

[00:24:02] Speaker 02:
Exactly, but his credibility... Exactly.

[00:24:04] Speaker 02:
His credibility was never challenged, Your Honor.

[00:24:07] Speaker 02:
In other words, this is not an issue where the credibility of the witness is challenged.

[00:24:12] Speaker 02:
It's just a question of what he said.

[00:24:13] Speaker 02:
So he's the expert, the judge is not.

[00:24:16] Speaker 02:
He's the expert on whether a person skilled in the art would understand when they read this patent.

[00:24:22] Speaker 01:
But as to the meaning of the term symbol generator, his credibility as an expert was challenged.

[00:24:31] Speaker 02:
I'm not sure.

[00:24:32] Speaker 02:
Not as to his knowledge of what person skilled in the art would understand, I think the judge drew the conclusion that because the words weren't used in the past together, that therefore they lack clear meaning or a coined term.

[00:24:44] Speaker 02:
But he didn't say that.

[00:24:46] Speaker 02:
Even if person, skill, and the art hear these two words together for the very first time, having read this patent, they would know what this is.

[00:24:55] Speaker 02:
It's a pre-existing structure.

[00:24:57] Speaker 02:
And I think that's the standard.

[00:24:58] Speaker 02:
If you look at Inventio case, if you look at that, you will see that it's after you read the patent, in that context, does a person, skill, and the art understand that this is describing a particular class of structures?

[00:25:12] Speaker 02:
And the answer here is the evidence said yes.

[00:25:14] Speaker 02:
And if you take that evidence away,

[00:25:16] Speaker 02:
and say, OK, Dr. Goldberg doesn't appear.

[00:25:19] Speaker 02:
They didn't point to anything intrinsic here.

[00:25:23] Speaker 02:
Basically, under the presumption, this is not means plus function.

[00:25:27] Speaker 02:
It was never intended to be.

[00:25:29] Speaker 02:
There's a clear problem if a drafter doesn't intend to use means plus function.

[00:25:36] Speaker 02:
He drafts it without the means for language.

[00:25:39] Speaker 02:
He drafts it for persons skilled in the art, all of whom understand without any further explanation.

[00:25:44] Speaker 02:
It's not necessary.

[00:25:45] Speaker 02:
what a symbol generator is, because it comes with every single device, every computer, has for years.

[00:25:52] Speaker 02:
Then to have a judge come along and say, well, you know, we don't know what it means, and it sounds functional, therefore it's means plus function.

[00:26:00] Speaker 02:
That really shouldn't happen, and this should be reversed.

[00:26:02] Speaker 03:
Okay.

[00:26:03] Speaker 03:
Thank both counsel for their argument.

[00:26:05] Speaker 03:
This case is taken under