[00:00:03] Speaker 04: The first case for argument this morning is 15-1171, Apple versus Samsung. [00:00:09] Speaker 04: Ms. [00:00:09] Speaker 04: Sullivan, whenever you're ready. [00:00:14] Speaker 05: Good morning, Your Honors, and may it please the Court. [00:00:16] Speaker 05: Kathleen Sullivan for Samsung. [00:00:18] Speaker 05: I'd like to begin with why the Court should reverse on the 647 Quick Links patent. [00:00:23] Speaker 05: And to begin, I'd like to return to the key language in the claim as construed by this Court in Motorola. [00:00:29] Speaker 05: The claim requires an analyzer server. [00:00:32] Speaker 05: for detecting structures in the data and for linking actions to the detected structure. [00:00:38] Speaker 05: So what we need is an analyzer server for linking and detecting. [00:00:43] Speaker 05: But as this court held in the Motorola case, construing the exact same patent claim, analyzer server must be separate from the client application that is sending the data to the server. [00:00:56] Speaker 05: And the exact words at Slip Opinion 23 in Apple against Motorola [00:01:01] Speaker 05: is that the specification requires an analyzer server that is separate from the application that serves. [00:01:07] Speaker 03: The term server was not construed in this case, was it? [00:01:10] Speaker 05: That's correct, Your Honor. [00:01:11] Speaker 03: What happened, there were... But in the Motorola case, we did look at the term server. [00:01:16] Speaker 03: You did? [00:01:17] Speaker 03: Yes. [00:01:18] Speaker 03: And said that the plain meaning of that term was that it required a client-server relationship. [00:01:25] Speaker 03: Is that correct? [00:01:26] Speaker 03: That's exactly right, Your Honor. [00:01:28] Speaker 05: And the exact words, if I could just recall them, [00:01:31] Speaker 05: You construed Analyzer Server as, quote, a server routine separate from a client that receives data having structures from the client. [00:01:43] Speaker 05: And in fact, you pointed at slip-up 23 to figure 1 in the patent, which has a box for the application, box 167, and a box for the server, box 165, and you said the specification [00:02:00] Speaker 05: describes the analyzer server and the application which it serves as separate structures. [00:02:05] Speaker 05: So I want to focus on separateness and show why, very simply, there is no separateness on the record here. [00:02:11] Speaker 05: And therefore, analyzer server can't be met. [00:02:14] Speaker 02: But I guess the question here, as you say, is what separate means. [00:02:19] Speaker 02: And if I understand the situation Apple's expert admitted, [00:02:26] Speaker 02: that the library program was not a standalone program. [00:02:30] Speaker 05: Yes, Your Honor. [00:02:31] Speaker 02: But it is also not something that's routinely incorporated into the client program. [00:02:39] Speaker 02: It's called up when necessary, correct? [00:02:42] Speaker 05: Your Honor, you're getting to what is applicable for detecting. [00:02:46] Speaker 05: I wonder if I could start with linking, which doesn't involve the shared library at all. [00:02:50] Speaker 05: Could I start with linking and then address what happens with the shared library? [00:02:54] Speaker 05: Because the shared library [00:02:56] Speaker 05: There's an answer to your question, your honor, but what may not have been entirely clear in the briefing, but I want to make utterly clear to you is that if we focus just on linking, we don't need to get to shared libraries. [00:03:09] Speaker 05: And what I'd like to do is go back to Apple's experts admissions about the linking functions. [00:03:14] Speaker 05: The linking functions need to be in the server, not in the application. [00:03:19] Speaker 05: But we have two moments in time before and after this court's Motorola construction. [00:03:24] Speaker 05: We have the moment in time where first Apple's expert, Dr. Mowry, comes in and he says, oh, the linking code. [00:03:29] Speaker 05: I'll tell you what the linking code is in Messenger and Browser. [00:03:32] Speaker 05: And this is at A10857, 10859, and 10863 in the record. [00:03:41] Speaker 05: And he says, there are three routines that do the linking. [00:03:44] Speaker 05: And they are add call and contact menu, show links context menu, and create context menu. [00:03:50] Speaker 05: Now these are not in the shared library, Your Honor. [00:03:52] Speaker 05: These are in the application. [00:03:54] Speaker 05: And at that time, Dr. Mary says, that code is in the application. [00:03:59] Speaker 05: And why, Your Honor? [00:04:00] Speaker 05: Because you haven't told him yet that you reject his construction. [00:04:05] Speaker 05: You haven't told him yet that he can't just say the server can be any routine. [00:04:09] Speaker 05: Remember, Apple's pre-Motorola construction of 647 was, they said, [00:04:14] Speaker 05: An analyzer server should be construed as a program routine, a program routine that receives data. [00:04:20] Speaker 05: And you said, no, it can't be any program routine. [00:04:22] Speaker 05: It has to be a program routine that is separate from the client. [00:04:26] Speaker 05: So far, Your Honor, pre-Motorola, Mary is saying that the linking code is in the client. [00:04:32] Speaker 05: Now, what happens after Motorola comes down? [00:04:35] Speaker 05: Motorola comes down at the 11th hour in the trial. [00:04:38] Speaker 05: And Judge Koh allows the parties to come back, bring the experts back. [00:04:41] Speaker 05: Dr. Mary comes back. [00:04:42] Speaker 05: If you look at nothing else in the record, your honors, please look at pages A13033 to A13034, because that's what Dr. Mary says about the linking code when he comes back. [00:04:55] Speaker 05: And here's what he says about the linking code. [00:04:57] Speaker 05: He says at 13033, lines eight and 20, well, the code that does the linking, it's still those three routines I told you about earlier. [00:05:05] Speaker 05: It's add call and contact menu, it's show links context menu, and it's on create context menu. [00:05:11] Speaker 05: And he still says those three routines are in the client. [00:05:14] Speaker 05: Your Honor, look at A13033 line 10 and A13034 line 18. [00:05:21] Speaker 05: He says those three routines that do the linking are in the client or from the client. [00:05:26] Speaker 05: They're in browser or they're in messenger. [00:05:29] Speaker 05: And now comes the key moment, Your Honor. [00:05:31] Speaker 05: And here's where Apple is trying to end run this court's construction of Analyzer Server as being separate from the client. [00:05:37] Speaker 05: He says, oh, well, they're in the client. [00:05:39] Speaker 05: And they're from the client, those three routines that do the linking. [00:05:43] Speaker 05: But never mind, they're just glue code. [00:05:45] Speaker 05: They're just glue code. [00:05:47] Speaker 05: Now, I don't care what he renames them. [00:05:50] Speaker 05: He can rename them glue code. [00:05:51] Speaker 05: He can rename them analyzer server. [00:05:53] Speaker 05: He can rename them server routine. [00:05:56] Speaker 05: But he can't meet the construction this court gave to analyzer server unless they're outside the client. [00:06:02] Speaker 05: Linking code that's in the client cannot be functioning as an analyzer server, which has to be outside the client. [00:06:07] Speaker 05: So this is the key here. [00:06:09] Speaker 05: This is dispositive. [00:06:10] Speaker 05: You don't have to get to shared libraries because we're done right there. [00:06:13] Speaker 02: But I hope you're going to get there. [00:06:14] Speaker 05: I will, Your Honor. [00:06:15] Speaker 05: I very much want to answer Your Honor's question. [00:06:17] Speaker 05: I just wanted to be clear, because it may not have been clear in the briefs, that as to linking, you never need to get to shared libraries. [00:06:26] Speaker 05: The linking code is entirely a matter outside the shared libraries because Apple admits that to link, you need code that's in the application. [00:06:34] Speaker 05: Now, Your Honor, thank you for your patience. [00:06:37] Speaker 05: And I do want to get to shared libraries and say why we also went on shared libraries. [00:06:43] Speaker 05: Now, Dr. Marry admitted that... Come back to my question. [00:06:49] Speaker 02: Yes, your honor. [00:06:51] Speaker 02: The question is what does separate mean? [00:06:53] Speaker 02: There's no question that it's a separate program in the sense that it's not routinely run as part of the client program. [00:07:02] Speaker 02: But as I understand, Apple's expert also admitted [00:07:07] Speaker 02: that it's not run as a standalone program. [00:07:10] Speaker 05: That's correct, Your Honor. [00:07:11] Speaker 02: And does that, does separateness require that it be run as a standalone program, or is it sufficient that it's a separate program that's called up and run by the client program when necessary? [00:07:23] Speaker 05: The former and not the latter, Your Honor. [00:07:25] Speaker 05: It must run as a standalone program separate from the client. [00:07:28] Speaker 05: If the client calls up the program, [00:07:31] Speaker 05: and incorporates it for purposes of performing linking and detecting, it is not an analyzer server. [00:07:37] Speaker 05: And here's why. [00:07:37] Speaker 05: The claim, just to go back to the language of the claim, the claim requires a server routine separate from a client that receives data having structures from the client. [00:07:48] Speaker 05: That's your construction. [00:07:48] Speaker 05: I'm sorry, I want to go back to the claim language. [00:07:50] Speaker 05: Claim one requires an analyzer server for detecting and linking. [00:07:55] Speaker 05: And I think the plain language there means that [00:07:58] Speaker 05: the analyzer server has to be doing the detecting and the linking. [00:08:02] Speaker 05: And the analyzer server is not doing the detecting and the linking. [00:08:05] Speaker 05: The application is doing the detecting and linking, incorporating or importing the code from the shared library to do that. [00:08:12] Speaker 05: And the key admission is really one that my friend Mr. Lee emphasizes in his brief at page 17. [00:08:19] Speaker 05: If you want to see the key admission as to why it's the application that's doing the detecting and linking, it's Dr. Mary's own words at the bottom of red brief 17. [00:08:28] Speaker 05: This is a quote from the record at page 13036 to 13037, and this is a key sentence, and it's emphasized by Apple, but I think it, with all respect, it cuts our way. [00:08:41] Speaker 05: Well, it has access to the code, and it goes to the code where it is and uses it there, and it does that each time that it accesses the code. [00:08:49] Speaker 05: Well, the it in the beginning of that sentence that is the subject of the verb uses is the application. [00:08:55] Speaker 05: The application is using the shared library code, meaning it's the application that is doing the detecting and linking. [00:09:02] Speaker 05: And it imports. [00:09:02] Speaker 05: If you look at the source code, the jury had the source code. [00:09:05] Speaker 05: It's JX50. [00:09:08] Speaker 05: There are commands that say import. [00:09:11] Speaker 05: So there I am in Messenger. [00:09:12] Speaker 05: There I am in Browser. [00:09:13] Speaker 05: And I say import the linkify files I need or import the other files I need to do the detecting. [00:09:19] Speaker 05: But Your Honor, if I could use a humble real world analogy, what your construction wants is the following. [00:09:25] Speaker 05: If I have to perform a calculation, you want me to send the equation to the reference librarian and have her calculate it for me and send it back. [00:09:35] Speaker 05: That's why you said at slip out 23 that the application in box 167 is calling on the program, the separate structure in 165. [00:09:46] Speaker 05: So if I send my equation to the reference librarian and I say, please calculate it and send it back to me, that's your construction. [00:09:53] Speaker 05: But what Dr. Maury has testified here, to your honor, is I go to the library to use my humble analogy, and I take a book out, and I import its knowledge into my head, and I perform the calculation myself. [00:10:06] Speaker 05: So I think once you focus on the key language in claim one, that it is an analyzer server for detecting and linking. [00:10:14] Speaker 05: And once you look at Maury's admission that it is the application that is using the shared library code to perform detecting and linking, [00:10:23] Speaker 05: And you add that, Your Honor, to the key point you made earlier. [00:10:26] Speaker 05: You focused on Dr. Mallory's admission that the library code cannot function alone. [00:10:34] Speaker 05: And again, if you want to look at the key page, it's 13054, where Dr. Mallory says, using Linkify as an example, as it is running, it is not running as a standalone program. [00:10:46] Speaker 05: So, Your Honor, to answer your question more succinctly, separate means [00:10:49] Speaker 05: that the analyzer surfer has to be separately independently sufficiently as a standalone program doing the detecting and linking. [00:10:58] Speaker 05: Just as if the reference librarian did my calculation for me. [00:11:01] Speaker 05: Your Honor, I'm concerned about time and I want to make sure I get to some other patents. [00:11:07] Speaker 05: But I want to make sure I answer your questions on 647. [00:11:10] Speaker 05: Katrina? [00:11:11] Speaker 03: Yeah, I have a question with respect to the [00:11:17] Speaker 03: the 9-59 patent. [00:11:21] Speaker 03: And this is the J-mall of invalidity. [00:11:25] Speaker 03: What evidence was introduced with respect to defining or limiting the term heuristic? [00:11:34] Speaker 05: So, Your Honor, the evidence introduced about the meaning of that came in, in part, from inventor testimony. [00:11:40] Speaker 05: If you want to see why we think heuristics is indefinite, a key place to go would be to be page 47 of the yellow brief. [00:11:50] Speaker 03: And we cite there to... I'm sorry, I got... It seems to me that the use of the term with nothing else would [00:12:00] Speaker 03: would indicate perhaps indefiniteness. [00:12:02] Speaker 03: So I'm asking you to point out, and I'll ask the same of Mr. Lee, to point out what evidence was introduced that defines or limits what heuristic means here. [00:12:14] Speaker 05: So the evidence was partly inventor testimony, but the inventor testimony shows why it's indefinite because the inventors themselves contradicted each other. [00:12:24] Speaker 05: We don't dispute that the testimony, the evidence enabled heuristic to be construed. [00:12:30] Speaker 05: What we can test is whether the evidence allowed heuristics to be construed with the definiteness or boundaries required by Nautilus. [00:12:37] Speaker 05: And while the district court, of course, took Nautilus into account, we don't think that this use of heuristics is definite. [00:12:44] Speaker 05: But, Your Honor, you don't need to reach that because we think you can affirm the judgment of non-infringement of the 959 Act. [00:12:51] Speaker 02: Wait a moment. [00:12:52] Speaker 02: What do you mean we don't need to reach that? [00:12:54] Speaker 02: I thought that you were arguing that we did need to reach it and that you thought the [00:12:59] Speaker 02: patent claims should be invalid even if we were to sustain the non-infringement judgment. [00:13:07] Speaker 05: Your Honor, we did raise invalidity as a counterclaim and so we did put in, we did give you the opportunity to invalidate the patent. [00:13:15] Speaker 02: Opportunity? [00:13:16] Speaker 02: Are you? [00:13:17] Speaker 02: Suppose hypothetically we were to agree that there was no infringement of these claims. [00:13:25] Speaker 02: Do we need to reach the invalidity issue? [00:13:28] Speaker 05: You do not, Your Honor, because you could affirm the judgment here without reaching it. [00:13:33] Speaker 02: Okay. [00:13:35] Speaker 05: And we think the case for non-infringement, the substantial evidence supporting the judgment of non-infringement is overwhelming. [00:13:41] Speaker 05: And I won't go into that because that's in the briefs. [00:13:43] Speaker 05: Your Honor, if... Can we move to 721? [00:13:46] Speaker 04: Yes, Your Honor. [00:13:46] Speaker 04: I guess it's 721 this slide. [00:13:48] Speaker 04: Yes, Your Honor. [00:13:49] Speaker 04: Okay. [00:13:49] Speaker 04: Let's assume for the sake of argument that we [00:13:53] Speaker 04: have some disagreement with the teachaway conclusion that the district court reached and arguably the jury reached. [00:13:59] Speaker 04: So if we're left with only the secondary considerations, why are they not sufficient? [00:14:05] Speaker 04: One, what standard of review do we apply? [00:14:07] Speaker 04: And two, why are they not sufficient basis first to sustain the finding of non-obviousness? [00:14:13] Speaker 05: Your Honor, we think it's a legal question. [00:14:15] Speaker 05: We think that the obviousness is a legal question, and the ultimate conclusion is one that you can review de novo. [00:14:22] Speaker 05: And therefore, the question of whether the secondary considerations are strong enough to overwhelm a strong case of obviousness is a question that you can arrive at without deference to the district court. [00:14:33] Speaker 05: But with respect, we think, second, it's a legal question whether Plaisant teaches away. [00:14:39] Speaker 05: And I think that it's obvious. [00:14:41] Speaker 05: Let's put that aside. [00:14:42] Speaker 05: We don't have time for that. [00:14:43] Speaker 04: So just on secondary. [00:14:44] Speaker 04: We can provide some strong secondary considerations. [00:14:47] Speaker 04: Are they not particularly given the comments by Samsung's own employees with regard [00:14:53] Speaker 04: the ingenuity of this, or I forget the adjectives they use. [00:14:56] Speaker 05: So there are not for several reasons, Your Honor. [00:14:58] Speaker 05: First, there was no notice of the 721 patent before the suit. [00:15:03] Speaker 05: So any observations about general sliding to unlock is not relevant to the commercial success of the particular slide to unlock claim here. [00:15:16] Speaker 02: But then we're talking about the features in the Apple device, right? [00:15:22] Speaker 05: Yes, Your Honor. [00:15:23] Speaker 02: There is evidence, but that, the evidence... The patent, even though the patent might not have been noticed at that time. [00:15:31] Speaker 05: Yes, Your Honor, but any evidence of copying predates the patent. [00:15:35] Speaker 05: It's pre-2010. [00:15:37] Speaker 05: And so, again, I just want to focus on what we're asking here is not whether features or concepts were copied. [00:15:44] Speaker 02: Why isn't copying relevant even if it occurred before the issuance of the patent? [00:15:48] Speaker 05: Well, Your Honor, what you're looking for in secondary indicia is, is this the reason why there was commercial success? [00:15:55] Speaker 05: And the evidence here was very weak as to commercial success. [00:15:57] Speaker 02: You're actually copying separate from commercial success, right? [00:16:00] Speaker 05: Yes, but the copying, so I guess what I'm trying to suggest, Your Honor, is that the level of particularity at which you should care about copying is, was the patent copied? [00:16:11] Speaker 05: Was this claim copied? [00:16:13] Speaker 05: Was this particular iteration of slide to unlock copied? [00:16:16] Speaker 02: I don't understand that. [00:16:17] Speaker 02: It seems to me the question is whether the feature was copied and if it was copied even before the patent issue that you're still into a secondary, a relevant secondary consideration. [00:16:28] Speaker 05: Your Honor, I'd submit at most it's extraordinarily weak because it's too general. [00:16:33] Speaker 05: But let me give you two other key points about commercial success if I could. [00:16:37] Speaker 05: Apple doesn't practice this patent in its new operating system in iOS 7. [00:16:42] Speaker 04: But let's forget about commercial success. [00:16:43] Speaker 04: What about long felt need? [00:16:45] Speaker 04: What about industry praise? [00:16:46] Speaker 04: I mean, commercial success isn't the only thing we look at. [00:16:49] Speaker 05: Fair enough, Your Honor, but there's no evidence of nexus between this patent claim and commercial success or the other factors. [00:16:57] Speaker 05: The Hauser study didn't test the 721 on smartphones. [00:17:00] Speaker 05: It tested it on tablets. [00:17:01] Speaker 05: The long felt need, Your Honor, is referenced in both the prior art references. [00:17:05] Speaker 05: It's referenced in Neonode and Plaisance. [00:17:07] Speaker 05: The long felt need to avoid unanticipated activation is in the prior art. [00:17:12] Speaker 05: It's not something that Apple introduces to the world. [00:17:14] Speaker 05: It's a long felt need that's met by other... What about the chondroit study? [00:17:20] Speaker 04: That went in evidence on damages, right? [00:17:23] Speaker 04: That wasn't evidence presented in connection with this obviousness question. [00:17:26] Speaker 05: Well, you know, Your Honor, Apple claims that it's evidence of commercial success. [00:17:30] Speaker 05: No, I don't think they do. [00:17:32] Speaker 05: We think that you should reject it. [00:17:33] Speaker 05: I mean, we think that the study is flawed for obvious reasons. [00:17:36] Speaker 05: We've discussed it before. [00:17:37] Speaker 05: But key point, Your Honor, is didn't test 721 on phones. [00:17:43] Speaker 05: And therefore, it isn't evidence of commercial success. [00:17:49] Speaker 05: And there's no showing of commercial success of this feature in particular on phones, as opposed to the iPhone more generally. [00:17:57] Speaker 05: So, Your Honor, with respect to copying evidence, even if I concede that copying a feature, we don't concede that we copied features, but even if that were relevant to this inquiry, it's too soon, and it's not relevant to this claimed feature in the patent. [00:18:11] Speaker 05: There are lots of ways to slide and unlock. [00:18:13] Speaker 05: Neonode and Plaisant anticipated them, and we think a person of skill in the art would have known to combine them. [00:18:19] Speaker 05: We put in expert testimony that was powerful on that, and Apple didn't put anything to the contrary. [00:18:24] Speaker 05: So Your Honor, I guess to answer your question, it's a weighing. [00:18:27] Speaker 05: You have to look at the secondary indicia, which we think are very weak, and weigh it against the case for obviousness, which we think is very strong. [00:18:35] Speaker 05: And we think that coming out on that as a matter of law, you should find the 721 invalid as obvious. [00:18:42] Speaker 05: And one last factor, it is worth noting, although obviously we don't have to defer to other nations of the world, [00:18:49] Speaker 05: All the other jurisdictions of the world who have considered the 721 patent or its foreign equivalent in light of these prior art references have invalidated it. [00:19:00] Speaker 05: So 721 has been invalidated elsewhere in the world based on obviousness from these references. [00:19:05] Speaker 05: 172. [00:19:06] Speaker 01: 170. [00:19:06] Speaker 01: When do you want to sit down? [00:19:09] Speaker 05: Well, Your Honor, I want to reserve time for reflection. [00:19:12] Speaker 05: Well, Your Honor, will I have time for rebuttal afterwards? [00:19:16] Speaker 05: I certainly want to answer all of your questions. [00:19:17] Speaker 05: So, Your Honor, as to 172? [00:19:18] Speaker 02: The secondary considerations in connection with the 172 case. [00:19:25] Speaker 05: Same argument there, Your Honor. [00:19:26] Speaker 05: And again, I'm asking you to please consider secondary considerations in relationship to the strength of the obviousness case as a matter of law. [00:19:35] Speaker 05: There may be implicit factual findings, but you have the ultimate decision about how to weigh them. [00:19:41] Speaker 05: On the 172, Your Honor, we think there's, again, a very strong case for obviousness. [00:19:45] Speaker 05: We think Robinson is almost a single reference obviousness reference because it discloses every element of autocorrect except for one thing, the text being typed in the first area. [00:19:56] Speaker 05: And we think it was well known in the art and exergomics is an example of a reference that supplies the idea that when you're correcting a word, you might want to see the word where you're typing it before you correct it or complete it. [00:20:09] Speaker 05: So strong case for obviousness. [00:20:10] Speaker 05: And on the secondary indicia, your honor, again, no strong evidence of commercial success. [00:20:16] Speaker 05: It's undisputed that Apple never practiced claim 18 of the 172. [00:20:20] Speaker 05: So the idea that it was important to Apple's commercial success is not in this record. [00:20:25] Speaker 05: And there is no proof, again, of a nexus between commercial success and claim 18. [00:20:30] Speaker 05: There was only evidence about commercial success and popularity of the iPhone generally. [00:20:35] Speaker 05: So with respect, we don't see any case at all for secondary indicia overwhelming the strong obviousness case on the 172. [00:20:41] Speaker 05: And we think both 721 and 172 should be reversed on the grounds of invalidity for obviousness. [00:20:50] Speaker 05: Your Honor, there's nothing else I'd like to add. [00:20:52] Speaker 02: No, there is something. [00:20:54] Speaker 05: Thank you, Your Honor. [00:20:59] Speaker 02: Ongoing royalties. [00:21:00] Speaker 02: Yes, Your Honor. [00:21:01] Speaker 02: As I understand it, there has been no permanent injunction entered yet by the district court. [00:21:06] Speaker 05: That's correct, Your Honor. [00:21:07] Speaker 02: So, but once that injunction is entered, then the ongoing royalties issue becomes moot thereafter, correct? [00:21:18] Speaker 05: Correct, Your Honor. [00:21:19] Speaker 02: Okay, but it's not entirely moot because [00:21:23] Speaker 02: even if an injunction is entered, there's still the issue of ongoing royalties from the date of the original judgment up until the date of the injunction, correct? [00:21:32] Speaker 05: That would be correct, Your Honor. [00:21:34] Speaker 05: But that could be handled also by supplemental damages, which haven't been resolved either. [00:21:40] Speaker 05: So I'd like to take one step back. [00:21:44] Speaker 05: We think that it was incorrect to issue the ongoing royalties at the point the district court did, because the district court lacked jurisdiction once Apple sought [00:21:53] Speaker 05: a review of the denial of the injunction. [00:21:56] Speaker 05: We think, second, they waived their right to ongoing royalties. [00:22:00] Speaker 05: And just to remind, there's no claim for ongoing royalties in the complaint. [00:22:04] Speaker 05: There's no request for ongoing. [00:22:06] Speaker 02: I don't understand your suggestion that this could be handled as a result of supplemental damages, because your arguments are that the damages have to stop with the date of the judgment, correct? [00:22:18] Speaker 05: Yes, Your Honor. [00:22:18] Speaker 05: So Your Honor, it's certainly the case you must vacate the ongoing royalties. [00:22:23] Speaker 05: The question is, do you remand or not to allow Apple to pursue ongoing royalties? [00:22:29] Speaker 05: And with respect to that question, I'm asking you to not remand to pursue ongoing royalties because Apple has waived and the court abused its discretion by holding that it did not waive. [00:22:39] Speaker 05: Because Apple never asked for ongoing royalties, even in its injunction motion in May. [00:22:44] Speaker 05: It's not until after the injunction is denied in August, that in September, [00:22:48] Speaker 05: it files for the first time its request for ongoing royalties after it's already appealed the denial of the injunction to this court. [00:22:54] Speaker 05: So Your Honor, we think that Apple shouldn't get a second bite at the ongoing royalties questions when they waived it. [00:23:01] Speaker 05: We shouldn't cry a tear for them not seeking ongoing royalties. [00:23:03] Speaker 03: I understand what you're arguing. [00:23:04] Speaker 03: Thank you, Your Honor. [00:23:05] Speaker 03: What's left pending before the court with respect to damages? [00:23:08] Speaker 03: Just the ongoing royalties? [00:23:11] Speaker 05: Well, Your Honor, there's a number of things still pending before the district court. [00:23:15] Speaker 05: So first, I don't want [00:23:17] Speaker 05: This court reversed the denial of the injunction and remanded for further proceedings on the injunction. [00:23:22] Speaker 05: We don't concede that any injunction should issue. [00:23:24] Speaker 05: But that remains to be determined. [00:23:27] Speaker 05: What also remains is when this court reversed the trade dress judgment on certain products, those products were also subject to design patent and utility patent damages. [00:23:41] Speaker 05: And there's a scheduled retrial on damages under the alternative theories for those products. [00:23:48] Speaker 05: And then this is, I'm sorry, I've completely gone off into another case and forgive me because I've been here so many times that I have confused two issues. [00:24:00] Speaker 05: So let me just consult for a moment to answer your question. [00:24:22] Speaker 05: So Your Honor, forgive me for misspeaking. [00:24:24] Speaker 05: There's nothing left to do other than to decide the injunction. [00:24:29] Speaker 05: And if you were to vacate the ongoing royalty order, we respectfully request that you not remand for ongoing royalties determination because it was waived. [00:24:38] Speaker 05: That's a much simpler answer to your question. [00:24:41] Speaker 03: Right, Your Honor? [00:24:42] Speaker 03: And they were waived because Apple sought the injunction? [00:24:46] Speaker 05: Well, waived because they never sought ongoing royalties. [00:24:49] Speaker 05: prior to ongoing royalties are a species of equitable relief. [00:24:52] Speaker 05: They sought an injunction. [00:24:53] Speaker 05: They didn't seek ongoing royalties after the trial when they sought the injunction. [00:24:58] Speaker 05: And when they appealed the injunction to this court, the district court had no jurisdiction. [00:25:02] Speaker 05: And by waiving their right to ongoing royalties, they can't come now and say, oh, we put it in the complaint by our boilerplate damages clause because this court has said in pace that damages is ongoing royalties are a species of equitable relief and not damages. [00:25:18] Speaker 04: Thank you. [00:25:19] Speaker 04: We'll restore four minutes of rebuttal. [00:25:21] Speaker 05: Thank you, Your Honor. [00:25:23] Speaker 04: And why don't we add 10 minutes to Mr. Lee's time to try to keep it even, but don't feel compelled to use that. [00:25:32] Speaker 00: May it please the court. [00:25:34] Speaker 00: My name is Bill Lee, and together with my colleague Andrew Danforth, I represent Apple. [00:25:38] Speaker 00: I will try to address each of the issues that the panel raised during the course of Ms. [00:25:42] Speaker 00: Sullivan's argument. [00:25:43] Speaker 00: Let me just start quickly. [00:25:46] Speaker 00: where the argument ended on this ongoing royalty issue. [00:25:50] Speaker 00: If you consider what Samsung is asking you to do, it's saying that for the period after judgment, through the date of entry of a permanent injunction, there would be no... Do you agree with her about that it becomes moot after an injunction issue? [00:26:02] Speaker 02: If it injunction issues, it would become moot. [00:26:04] Speaker 00: So what we're talking about, Your Honor... Between the date of the judgment and the date of the injunction. [00:26:08] Speaker 00: Right. [00:26:08] Speaker 00: And the request that you reverse [00:26:11] Speaker 00: and find waiver as a request that for that period of time, for adjudicative infringement, there'd be absolutely no relief. [00:26:18] Speaker 00: And nothing in this court's law nor in the district court's review of the relief that had been requested by Apple would suggest that's the appropriate determination. [00:26:28] Speaker 00: The district court specifically found there was no waiver, that there was a request for both equitable and monetary relief. [00:26:36] Speaker 00: And that's, in fact, what occurred. [00:26:37] Speaker 00: We did request injunction first. [00:26:40] Speaker 00: When the injunction was denied, we went back at that point in time and said, well, if we don't get an injunction, we should get ongoing royalties for that period of time. [00:26:49] Speaker 00: It is, Your Honor, just as you said, just this period of time, assuming that the injunction issues, the district court found it not to be waived. [00:26:59] Speaker 00: The district court had jurisdiction to address it because this doctrine of pending appellate jurisdiction is [00:27:05] Speaker 02: Why don't you turn to some of the substantive issues? [00:27:09] Speaker 00: Fair enough. [00:27:10] Speaker 00: Can I start at the 647 patent? [00:27:12] Speaker 00: And let me just say this at the outset. [00:27:16] Speaker 00: The issue which we're focused on today is a substantial evidence issue. [00:27:21] Speaker 00: To go to Judge Rainier's question, while there was no construction of these terms during the course of the trial before the last day, once [00:27:30] Speaker 00: you rendered your Motorola decision, the jury was twice instructed on the meaning of analyzer server and linking action. [00:27:37] Speaker 00: It was actually given the instruction in writing before the evidence was resumed, and then it was charged at the end. [00:27:45] Speaker 00: So the question is, was there substantial evidence to support the jury's determination? [00:27:50] Speaker 00: Let me take them in the order of this. [00:27:52] Speaker 02: To some extent, it depends on what's meant by separateness. [00:27:56] Speaker 02: Because your expert admitted that it's not [00:27:59] Speaker 02: the library thing is not a stand-alone program. [00:28:04] Speaker 02: It's incorporated into the client program, right? [00:28:10] Speaker 00: No. [00:28:11] Speaker 00: In part yes and in part no. [00:28:13] Speaker 00: He admitted that it wasn't stand-alone in the sense it performed, it operates in a vacuum. [00:28:20] Speaker 00: He never said it was part of the client program. [00:28:22] Speaker 02: And in fact, the portion of the record that... But it doesn't start out as part of the client program in the sense the client program is run [00:28:29] Speaker 02: and the library program is called on when it's needed. [00:28:33] Speaker 02: So it's not run as a routine matter as part of the client program. [00:28:37] Speaker 02: But when it is called up and run, it is run then as part of the client program, right? [00:28:45] Speaker 00: No, Your Honor. [00:28:45] Speaker 00: That's not what the substantial evidence was. [00:28:47] Speaker 00: And let me answer your question directly and then talk about what the evidence was. [00:28:52] Speaker 00: There is no requirement that it be standalone. [00:28:55] Speaker 00: The requirement is that it be a separate routine. [00:28:58] Speaker 00: And there is nothing in the specification, nor the construction. [00:29:01] Speaker 02: Stand-alone would mean running separately. [00:29:04] Speaker 00: It's a routine that is separate. [00:29:06] Speaker 00: But routines don't run. [00:29:07] Speaker 02: But just to understand what you're saying, what you're saying is it doesn't have to be a standalone program in the sense of being run separately from the client program. [00:29:17] Speaker 00: Your Honor, again, I'm going to break it down. [00:29:20] Speaker 00: It has to be a routine that is separate from the client. [00:29:26] Speaker 00: That's what the claim construction is. [00:29:29] Speaker 00: We agree, actually, that it has to be run separately from the client. [00:29:35] Speaker 00: It's a routine that runs separately. [00:29:37] Speaker 00: And that's what Dr. Mowry said. [00:29:40] Speaker 00: He said these three things. [00:29:42] Speaker 00: Where did he say that? [00:29:44] Speaker 00: He said it, let me take you exactly to his testimony. [00:29:48] Speaker 00: He testified that the shared libraries are separate [00:29:55] Speaker 00: at 13035. [00:29:58] Speaker 00: And he said they were developed independently, that they're stored in different parts of memory, that there is only one copy of the shared library code, and the applications go to that code when they want to use it. [00:30:13] Speaker 00: That's at A 13035. [00:30:15] Speaker 00: And to quote him, he says, and they use it there. [00:30:20] Speaker 00: That's specifically what he said to address [00:30:23] Speaker 00: this court's claim interpretation. [00:30:26] Speaker 02: He also testified that... Can you say it was run separately from the client program? [00:30:35] Speaker 00: I thought he said it wasn't run separately from. [00:30:37] Speaker 00: Yes, and he said it at A 13036, and the quote was definitely separate. [00:30:45] Speaker 00: And Your Honor... What line is that on? [00:30:47] Speaker 00: Let me get 13036. [00:30:53] Speaker 04: So it's definitely separate from the application? [00:30:55] Speaker 04: Yeah, line 20. [00:30:58] Speaker 03: Look at line 16 and 17 at that same page where you're there. [00:31:04] Speaker 00: It's a different part of the address space. [00:31:07] Speaker 00: It's in a particular part of memory. [00:31:09] Speaker 00: And all those applications go to the shared library code in one place that exists in the computer memory hardware to use it. [00:31:17] Speaker 00: So it's definitely separate. [00:31:20] Speaker 02: Yeah, stored separately. [00:31:22] Speaker 02: and not run routinely as part of the client program. [00:31:26] Speaker 02: But it seems to me that it is not run separately. [00:31:30] Speaker 02: And if separate here means run separately, it doesn't satisfy that. [00:31:34] Speaker 00: Well, actually, Your Honor, if you go to the next page, 13037, you will see that he says that when they want to use the code, which is what we looked at at 13035, they use it there. [00:31:49] Speaker 00: What line are we talking about? [00:31:51] Speaker 00: Let me get you the exact line. [00:31:54] Speaker 00: Line 5. [00:31:55] Speaker 04: Wait, are we on 3-5 or 3-7? [00:31:58] Speaker 00: I'm sorry. [00:31:58] Speaker 00: 3-7. [00:31:59] Speaker 00: 3-5 is what tells you that it's going there. [00:32:01] Speaker 00: 3-7, line 4, is the answer to the question. [00:32:06] Speaker 00: Well, it has access to the code, and it goes to the code where it is, and it uses it there. [00:32:13] Speaker 00: And it does that each time that it accesses the code. [00:32:17] Speaker 00: Your Honor, without a doubt, their expert tried to make the contrary interpretation of the code. [00:32:24] Speaker 00: But to put this in context, there was during the trial before the Motorola decision testimony about why this claim was infringed. [00:32:31] Speaker 00: And it's important to remember that for nine of the 11 elements, there was no change resulting from the Motorola claim interpretation. [00:32:39] Speaker 00: Dr. Mallory took the devices, he showed the jury how they worked, he took them through the source code, [00:32:48] Speaker 00: He then, when the claim interpretation came down that Your Honor referred to, he came back and said, same source code, here are the routines that actually perform these functions. [00:33:02] Speaker 00: And I'm going to get the linking function, because Samsung has completely confused two different concepts that have nothing to do with what Dr. Mallory said. [00:33:10] Speaker 02: One at a time. [00:33:10] Speaker 02: This is complicated. [00:33:12] Speaker 00: And so let me finish on the separate one. [00:33:15] Speaker 00: This is a circumstance where, on a substantial evidence question, there's nothing in the claim interpretation that says it has to be standalone. [00:33:24] Speaker 00: It says it has to be a separate routine. [00:33:26] Speaker 02: And if Your Honor... What's the question, is whether it has to be a standalone program or whether it can be run as part of the client program, I guess? [00:33:34] Speaker 00: I actually think, Your Honor, two things. [00:33:38] Speaker 00: The question is, is it a separate routine, which is what this court's claim interpretation requires. [00:33:45] Speaker 00: The jury was instructed that it needed to be a separate routine. [00:33:50] Speaker 00: Dr. Mallory testified that it was separate in its development, separate in its location, separate in its execution. [00:33:59] Speaker 02: Now, to be sure, there are experts... Where does he say it's separate in its execution? [00:34:03] Speaker 00: I don't see that... 13035 and 13037. [00:34:06] Speaker 00: Where? [00:34:07] Speaker 02: Where does he say it's separate in its execution? [00:34:09] Speaker 00: 13037 says, well, it, the client, has access to the code and it goes to the code [00:34:16] Speaker 00: which is in the shared analyzer server where it is, and it uses it there. [00:34:21] Speaker 00: And it does that each time that it accesses the code. [00:34:25] Speaker 00: And, Your Honor, unlike Samsung's expert, Dr. Mauro gave an explanation for why in a smartphone where space is a premium and space for code is at a premium, that you don't want every application or every client to have its own copy of the code. [00:34:44] Speaker 00: It is actually working exactly the opposite. [00:34:46] Speaker 02: I understand that the copy doesn't copy, or at least there's testimony that it doesn't copy. [00:34:53] Speaker 02: And there's also testimony that it's not run as a standalone program. [00:34:57] Speaker 02: That's the problem. [00:34:58] Speaker 00: Your Honor, there is no requirement in the claim interpretation that run as a standalone program. [00:35:03] Speaker 00: And if the court were to consider it. [00:35:04] Speaker 00: That's the question. [00:35:05] Speaker 00: Well, if you look at the claim, you will see that there's a reference to routines. [00:35:10] Speaker 00: And then analyze your server is one of many routines. [00:35:14] Speaker 00: If you look at the paragraph immediately preceding analyzer server and linking actions, it says a memory storing information including program routines. [00:35:27] Speaker 00: The idea that each one of those program routines would have to run as a standalone is inconsistent with what's in the specification. [00:35:35] Speaker 00: The very program routines, and there are many in a specification, don't run independently in the abstract. [00:35:44] Speaker 00: They run as part of a series of functions. [00:35:47] Speaker 00: And in this particular circumstance, what happens is the client receives some data. [00:35:56] Speaker 00: And its question is, to reduce it to what's going on at least on my level, is what is this data? [00:36:03] Speaker 00: So what does it do? [00:36:04] Speaker 00: It calls upon the analyzer server and says, help me figure out what this data is. [00:36:11] Speaker 00: The analyzer server then [00:36:13] Speaker 00: takes its code, there's only one copy. [00:36:16] Speaker 00: It's never copied, as Dr. Mallory said, back to the client. [00:36:22] Speaker 00: It runs its code, determines what it is, and then you get to the linking action. [00:36:28] Speaker 00: The linking action has... Then why don't you turn to the linking question? [00:36:31] Speaker 00: Sure. [00:36:31] Speaker 00: Here's the bottom line. [00:36:32] Speaker 00: The linking action has nothing to do with the blue code. [00:36:36] Speaker 00: And it's a complete obfuscation of what the issues were before the jury. [00:36:41] Speaker 00: The glue code is what allows the browser or the messenger to say, I've got some data. [00:36:48] Speaker 00: I don't know what it is. [00:36:49] Speaker 00: Here it is. [00:36:50] Speaker 00: Help me with it. [00:36:52] Speaker 00: The linking action is the specified connection. [00:36:55] Speaker 00: The specified connection occurs after the analyzer server code has done its work in part. [00:37:02] Speaker 00: And it basically says, we've identified what that data is. [00:37:08] Speaker 00: And it becomes what's called an intent object. [00:37:11] Speaker 00: Dr. Maury described this in detail. [00:37:14] Speaker 00: Once the intent object identifies the class of data and the specific data, so the class could be your telephone number and the specific data would be the telephone number, it then connects to something called start activity. [00:37:29] Speaker 00: That is specified connection. [00:37:32] Speaker 00: It has got nothing to do with the glucose at all. [00:37:36] Speaker 00: And you have to create a specified connection that then causes the CPU to do something. [00:37:42] Speaker 00: And that's exactly what happens. [00:37:43] Speaker 00: And Dr. Mallory took the jury through exactly the process I've just described, to your honor, that basically demonstrates how the separate analyzer server function performs, how a specified connection is created as a result of that, [00:38:05] Speaker 00: and how that actually then detects the data and causes the CPU to perform the function that the user has chosen. [00:38:12] Speaker 03: It sounds like you're repeating an argument you've made before that these claims require only an association, associating and not linking. [00:38:23] Speaker 00: No, Your Honor. [00:38:24] Speaker 00: I think without a doubt, there was some debate about whether the claims were broader or narrower for your interpretation. [00:38:31] Speaker 00: We're not making that argument at all. [00:38:32] Speaker 00: There is a specified connection. [00:38:34] Speaker 00: In fact, if you go to 13039 to 13041, you'll find Dr. Mowry's testimony specifically. [00:38:42] Speaker 00: And the specified connection is at A50868. [00:38:46] Speaker 00: It's the demonstrative that he used it. [00:38:49] Speaker 00: So what happens, Your Honor, is once the intent object is called and the data is identified and the class of data is identified, [00:39:00] Speaker 00: There is a specific connection made to start activity. [00:39:03] Speaker 00: And the reason you know it's more than an association is depending upon what the data is, class and data, the specified, the start activity will perform a different function. [00:39:15] Speaker 00: So if it's a telephone number and you want to call, start activity will cause the CPU to call. [00:39:21] Speaker 00: If it's a telephone number and you want to save Mr. Danforth's telephone number to contacts, this will cause the CPU to do something different. [00:39:30] Speaker 00: Without a doubt, the claim interpretation that this court adopted is narrower, but you can satisfy the general and the specific, and that's exactly what happened here. [00:39:42] Speaker 00: In fact, at the trial, and I want Ms. [00:39:45] Speaker 00: Sullivan to mention this, suggesting that Dr. Mowry had changed his position. [00:39:50] Speaker 00: Actually, the one expert who was admonished on the last day of trial for suggesting [00:39:58] Speaker 00: that somehow his positions were consistent with what this court had done with their expert, not Dr. Mallory. [00:40:04] Speaker 00: Dr. Mallory took your claim interpretation and he walked through it and said, yes, it satisfies the general, but it also satisfies the specific. [00:40:14] Speaker 00: And at the end of the day, the question is, I think there are two going to judge your Honor's questions, which are, does the claim require a completely standalone separate routine? [00:40:26] Speaker 00: This court's Motorola interpretation doesn't require it. [00:40:29] Speaker 00: The claim doesn't require it. [00:40:30] Speaker 00: It does require a separate routine. [00:40:33] Speaker 00: Dr. Mowry said the routine is separate, that there's one copy of the code. [00:40:38] Speaker 00: It's called when the client wants to use it. [00:40:42] Speaker 00: It's used at the analyzer server. [00:40:45] Speaker 00: And once it's used, there is the creation of a specified action, which is the linking action. [00:40:53] Speaker 00: Last comment, Your Honor, to your question is, [00:40:56] Speaker 00: The claim term is creating a specified connection. [00:41:02] Speaker 00: And when the intent object is identified and the connection is made to start activity, a specified connection is created. [00:41:10] Speaker 00: So it specifically satisfies claim limitation. [00:41:14] Speaker 00: For all those reasons, and I'm not suggesting that their expert didn't say something different, [00:41:20] Speaker 00: But the jury heard both experts twice. [00:41:24] Speaker 00: The jury saw the devices. [00:41:25] Speaker 00: The jury had the source code. [00:41:27] Speaker 00: The jury had the routines. [00:41:29] Speaker 00: And critically important, it had the explanation from Apple's expert as to why he was correct that there's only one copy of the code and it's used at the analyzer server. [00:41:42] Speaker 00: And it's because it would defeat, to have multiple copies of the code would require the use of space. [00:41:49] Speaker 03: that's at a premium, an absolute premium, and what is basically a small... That goes to a, I guess, a confusion I have with respect to separate from. [00:42:03] Speaker 03: You're saying that this does not have to be standalone. [00:42:08] Speaker 03: It's clear it's got to be separate from what you've identified as the client, the browser and the messaging applications. [00:42:16] Speaker 03: That's the client. [00:42:19] Speaker 03: But all you've argued before us is that this is in a different location. [00:42:25] Speaker 03: It's got a different address. [00:42:26] Speaker 03: And to me, I'm not convinced yet that that's separate from the fact that you have a different address or a different location. [00:42:35] Speaker 03: And you even take your argument further and say, we can't have many locations. [00:42:38] Speaker 03: We've got to have at least one location because space is precious here. [00:42:43] Speaker 03: I'm still not totally convinced that this is separate from [00:42:49] Speaker 00: Your Honor, here's, I can answer it in two parts. [00:42:53] Speaker 00: Okay. [00:42:54] Speaker 00: The reason that it's not standalone, as Judge Dykes used the term, is the client has... Unless your expert used the term. [00:43:01] Speaker 00: Yes, and for a good reason, because it is the client who has to say, I have this data, what is it? [00:43:08] Speaker 00: Help me determine what it is and help me do a linking action. [00:43:12] Speaker 00: So by definition, the process has to start somewhere. [00:43:15] Speaker 02: What's not sending a [00:43:16] Speaker 02: to the library program, it's actually incorporating the library program and running it. [00:43:22] Speaker 00: Absolutely not. [00:43:24] Speaker 00: You've just articulated what Samsung's experts said, a theory that was rejected by the jury. [00:43:31] Speaker 00: What our expert testified to and the jury accepted and the district court credited on JM Well was it sends the data that it has seen but doesn't know what it is to the separate analyzer server. [00:43:45] Speaker 00: which is physically separate, independently developed, different location, one copy of the code, and it operates on that data there to figure out what it is. [00:43:55] Speaker 02: How is that consistent with it not being a stand-alone program? [00:43:58] Speaker 00: Well, Your Honor, there's no requirement legally that it be a stand-alone program. [00:44:02] Speaker 02: The claim would be... What you describe, it seems to me, is a description of something that's a stand-alone program, whereas your expert said it wasn't. [00:44:10] Speaker 00: No, Your Honor. [00:44:11] Speaker 00: What I've described is a stand-alone routine. [00:44:14] Speaker 00: And if you look at the claim... On routine as opposed to a standalone program? [00:44:18] Speaker 00: A routine that operates separately. [00:44:21] Speaker 00: And that's exactly what's going on here. [00:44:24] Speaker 00: If you would be taking the claim interpretation that was given in the Motorola case and reinterpreting it to require something more specific. [00:44:36] Speaker 00: And that wouldn't actually, that wouldn't make any sense in the context of the specification. [00:44:41] Speaker 00: It certainly wouldn't make any sense in the context of the evidence. [00:44:45] Speaker 00: No one's suggesting that the analyzer server can start operating without something happening at the client. [00:44:53] Speaker 00: The big fight was this. [00:44:56] Speaker 00: This was the big fight. [00:44:59] Speaker 00: Does the code from the analyzer server get copied and become part of the client where it's run? [00:45:07] Speaker 00: Or is there one copy of the code and is it run at the analyzer server separately as a separate root? [00:45:13] Speaker 02: Well, I don't think it's certainly not copied. [00:45:16] Speaker 02: At least you have testimony that it's not copied into the client program. [00:45:20] Speaker 00: Well, we have our testimony saying it's not there as to say it is. [00:45:25] Speaker 02: No, no, but that's not the issue. [00:45:26] Speaker 02: It's not whether it was copied into it. [00:45:28] Speaker 02: The question is whether it's run separately. [00:45:30] Speaker 00: And Dr. Mallory said it was. [00:45:33] Speaker 00: And the debate that you and I are having here, or the discussion you and I are having here, is the disagreement the two experts had. [00:45:44] Speaker 00: So we have one of two issues. [00:45:46] Speaker 00: Either the court thinks that there is appropriate to have a new claim construction that's actually more specific and different than what the jury charged. [00:45:55] Speaker 00: No one has urged you to do that. [00:45:57] Speaker 00: There is no suggestion that claim interpretation is wrong. [00:46:00] Speaker 00: The only question is, on the claim interpretation, was there a substantial evidence? [00:46:05] Speaker 00: The question is, what does the claim interpretation mean? [00:46:07] Speaker 00: No, Your Honor, they haven't raised that issue. [00:46:11] Speaker 00: There is no issue of claim interpretation. [00:46:14] Speaker 00: There is no issue of whether it was incorrect. [00:46:16] Speaker 00: There is no issue of whether it was given. [00:46:18] Speaker 00: The only question is, on that charge, was there substantial evidence to support the jury's decision? [00:46:25] Speaker 00: So let me quickly try to address some of the other issues. [00:46:27] Speaker 02: Yeah, turn to the 721 and 172. [00:46:30] Speaker 02: And let's hypothetically assume that with respect to each of these, we decide that there's a strong prima facie case of obviousness. [00:46:39] Speaker 02: And so why do the secondary considerations in each instance overcome that? [00:46:44] Speaker 00: Your Honor, because in each instance, the combination of, and I'd like to get back to the prima facie case, but I'm going to take your question as it stands. [00:46:54] Speaker 00: And again, while obviousness is a question of laws, the court articulated it, these subsidiary or these underlying facts are judged by substantial evidence. [00:47:05] Speaker 00: And in both circumstances, there was industry praise for the feature. [00:47:11] Speaker 00: There was demonstrated commercial success. [00:47:14] Speaker 00: There was the conjoint study. [00:47:15] Speaker 02: How was the demonstrated commercial success with respect to these features as opposed to the iPhone as a whole? [00:47:22] Speaker 00: We honor because the testimony went to these features. [00:47:26] Speaker 00: The conjoint study went to these features. [00:47:30] Speaker 00: The survey results went to these features. [00:47:33] Speaker 00: The copying evidence, we're not talking about, and I don't think there's a distinction between copying the feature and copying the words of the patent. [00:47:43] Speaker 00: The features are going to come out almost by definition before the patent emerges. [00:47:48] Speaker 00: Copying a feature, I mean, [00:47:50] Speaker 02: I understand, but what about, what's the evidence of commercial success? [00:47:55] Speaker 02: The conjoint survey? [00:47:57] Speaker 00: The conjoint survey is in part the evidence of commercial success. [00:48:01] Speaker 03: Is there a link? [00:48:02] Speaker 03: Was there evidence linking the survey to the specific features on the patents? [00:48:07] Speaker 00: Yes. [00:48:07] Speaker 00: For the 172 patent there was at 51440, you will find that chart that Dr. Hauser used that gave a specific indication linking the [00:48:20] Speaker 00: giving the nexus between the claim feature and the success of the products. [00:48:24] Speaker 00: There was a comment about whether we practiced precisely the claims that were asserted. [00:48:28] Speaker 00: I think the court knows that there was a limitation on the number of claims that could be adjudicated to 10, and that included the ones that you could claim you practiced. [00:48:36] Speaker 00: So in one case, while we didn't practice the precise claim, we practiced another claim in the patent, but it was just not something that could be put before the jury. [00:48:46] Speaker 00: In this case, and the court has addressed it in part in the permanent injunction opinion, there was industry praise for that specific fee. [00:48:54] Speaker 04: Can I ask you just a more background question? [00:48:56] Speaker 04: Sure. [00:48:56] Speaker 04: With respect to both patents, you make an argument. [00:48:59] Speaker 04: You think it's strong. [00:49:01] Speaker 04: It may or may not be strong, which the 721 teaching away. [00:49:05] Speaker 04: And so you make a strong argument, and the case was made, that there was no really strong prima facie case of obviousness. [00:49:11] Speaker 04: Right. [00:49:12] Speaker 04: And the J-Mall, the district court, thought that. [00:49:14] Speaker 04: And then both you and the district court in your brief, you say, and secondary considerations add to this or bolster this or whatever. [00:49:23] Speaker 04: I don't read anyone that's ever made the argument that if we rejected your arguments with respect to teaching away, for example, in the 721, that you were arguing that secondary considerations by themselves [00:49:37] Speaker 04: in the face of a strong prima facie case of obviousness would be sufficient to dislodge. [00:49:42] Speaker 00: So let me answer in two ways. [00:49:45] Speaker 00: There is the disagreement in some of the court's opinions about whether you view it as prima facie case and then move to secondary considerations, or you view this, all this evidence collectively to determine whether it's obvious or not. [00:49:58] Speaker 00: I think to go to yours. [00:49:59] Speaker 04: Well, it's viewed at the end of the day. [00:50:00] Speaker 04: Obviously, you have to consider all of it. [00:50:03] Speaker 04: Right. [00:50:03] Speaker 00: And I think my answer is twofold, but I'm going to take your question first and then answer in a way, at least, that I sort of understood the issue and as we briefed the issue. [00:50:16] Speaker 00: Have we made the specific argument that if you adopted a prima facie case argument that the secondary consideration would overcome the prima facie case? [00:50:26] Speaker 00: I don't think we said it in our brief. [00:50:28] Speaker 00: I will say to you here that I think that the answer is it does, and the jury would [00:50:33] Speaker 00: was entitled to conclude that it did. [00:50:36] Speaker 00: I mean, these are circumstances not where there is some vague accusation of copying. [00:50:41] Speaker 00: This is a situation where the jury had before it and you had before it literally a copy of our phone and our feature, literally a copy of the prototype that Samsung had, literally a label of the feature, and literally a direction at the bottom to copy our feature. [00:51:00] Speaker 00: So you have industry praise for auto-correct and slightly unlocked. [00:51:08] Speaker 00: You have the conjoint studies conducted by Dr. Hauser. [00:51:11] Speaker 00: But from Samsung's own mouth, you have them saying, this is a great feature. [00:51:18] Speaker 00: Our customers, the carriers, say that our version is jarring. [00:51:26] Speaker 00: Here's what we're going to do. [00:51:29] Speaker 00: They adopted the feature which was found to in French. [00:51:33] Speaker 00: There's nothing in this court's law that says in order to, there would be evidence of copying. [00:51:38] Speaker 00: You have to show that someone read claim 18 and then religiously followed claim 18. [00:51:43] Speaker 00: This is a circumstance where our product hit the market. [00:51:47] Speaker 00: They identified it. [00:51:48] Speaker 00: They identified these features, auto-correct and slide to unlock, as important. [00:51:56] Speaker 00: Important to them, important to their customers. [00:51:59] Speaker 00: And then they religiously... Where do they say that, that it's important to their customers? [00:52:04] Speaker 00: Your Honor, there's a specific, I don't know if I have the specific page for you, but there is, I'll get it for you, but there's a reference to the jarring aspect. [00:52:19] Speaker 02: I know that I've seen that, but I don't... That comes from the customers. [00:52:23] Speaker 02: Yeah, but I don't remember any testimony or any document that said it was important to their customers. [00:52:29] Speaker 00: Well, if you have a document from Samsung. [00:52:33] Speaker 02: So you're not claiming that there's a specific reference to it being important to their customers? [00:52:38] Speaker 00: No. [00:52:38] Speaker 00: I think what I intended to say is you have a document that has... You're referring that from the jarring content? [00:52:44] Speaker 00: Yeah. [00:52:45] Speaker 00: It has ours on the left, theirs on the right, and a statement that the carriers say that their feature is jarring. [00:52:50] Speaker 00: And then the recommendation is to adopt our feature. [00:52:54] Speaker 00: That's pretty strong evidence. [00:52:56] Speaker 00: And so I think the answer... [00:52:58] Speaker 00: Judge Post, Chief Judge Post, your question is, we would say that it does. [00:53:01] Speaker 00: Now, very quickly, so I also can get to the heuristic issue. [00:53:10] Speaker 00: For both the 172 and the 721, we think the evidence before the jury supports the non-obviousness determination. [00:53:21] Speaker 00: And just to summarize what Your Honor said, in one case, there is [00:53:27] Speaker 00: place on which specifically refers is for a large an air conditioning unit it's a wall-mounted unit who refers the difficulty of implementing it a complex slide to unlock. [00:53:44] Speaker 00: That is teaching away now there was disagreement but this court's Petrolytic's decision said that's a question for the jury. [00:53:51] Speaker 02: I don't understand why there's teaching away. [00:53:53] Speaker 02: I mean you had the other [00:53:56] Speaker 02: reference that showed on a phone sweeping from left to right. [00:54:03] Speaker 02: And what was missing from that was a depiction of an arrow or whatever it is moving along with the finger that's doing the sliding. [00:54:12] Speaker 02: That's what's missing from that. [00:54:14] Speaker 02: And then looking to plaisant, that's where the visual depiction [00:54:22] Speaker 02: comes from, right? [00:54:24] Speaker 02: So where's the teaching of what? [00:54:26] Speaker 00: Well, Your Honor, Plaisant says that at 20743 that sliders are not preferred, sliders are more complex, sliders are more difficult. [00:54:37] Speaker 04: And that's followed by quite a lengthy statement that says even if sliders are not preferred, the fact that users, and then it goes on and on to talk about the advantages of sliders. [00:54:48] Speaker 00: For sure, Your Honor. [00:54:48] Speaker 00: And is this court held in spectrolitics? [00:54:53] Speaker 00: When you have, and I think Judge Coe described it as there was interpretations on both sides. [00:55:00] Speaker 00: The jury heard testimony from both experts as to how wonderful ordinary skill in the art would interpret this reference. [00:55:08] Speaker 02: They credited- Why does something teach a way? [00:55:11] Speaker 02: If a prior art reference says this is preferred, but you could do it the other way, and there are advantages to doing it the other way. [00:55:19] Speaker 02: That doesn't seem to me to be a traditional teaching way. [00:55:22] Speaker 00: Well, Your Honor, I think the best I can say is this. [00:55:28] Speaker 00: It was a jury question of whether it teaches a way or not. [00:55:32] Speaker 00: You had two experts who got on the stand, looked at the language, that sliders were not preferred, is what it says. [00:55:41] Speaker 00: Not that they are preferred, were not preferred. [00:55:44] Speaker 02: Sliders are more complex. [00:55:46] Speaker 02: What case says that if something's not preferred, but it has advantages and could be used, [00:55:51] Speaker 02: that that involves the teaching away. [00:55:55] Speaker 00: Yeah, I don't have a precise case that says precisely that, but what I do have is spectral litics that says that the question of teaching away is a jury question. [00:56:04] Speaker 00: The jury, everything that we have been discussing back and forth, the jury heard from both experts, and they heard from us in closing. [00:56:13] Speaker 03: Our review of Poisson was that sliders were not preferred, but still the authors, they saw some value in them. [00:56:22] Speaker 00: For sure. [00:56:23] Speaker 00: They evaluated it. [00:56:24] Speaker 00: Not teaching away. [00:56:25] Speaker 00: And now the question is, if you have this, if you have plaisant, is there the motivation to combine? [00:56:31] Speaker 00: And just to remind the court, when Judge Koch considered this preliminary injunction, she said, you know, it's not enough to say you just would combine them. [00:56:42] Speaker 00: And we got the trial, and all there was was, well, it would be natural to do this. [00:56:48] Speaker 00: Well, why? [00:56:50] Speaker 00: No explanation. [00:56:52] Speaker 00: So this is a situation where the one thing if we were describing, we were discussing this in the abstract in the first instance. [00:56:59] Speaker 00: But this is a situation where the jury heard about place on. [00:57:05] Speaker 00: The jury heard about neonode, which actually is missing more, I think, than is described by Samsung. [00:57:12] Speaker 00: Because without the unlock image, you can't do three parts of the claim. [00:57:17] Speaker 00: And then the question becomes this. [00:57:21] Speaker 00: Given that the jury heard from both experts about neonote, given that they heard about Plaisant, given they heard the only suggestion of a motivation combined would be that it would be natural to do so, but nothing more specific. [00:57:37] Speaker 00: And given that they heard all the secondary considerations, is there substantial evidence to support the jury's verdict? [00:57:45] Speaker 00: And the answer is yes. [00:57:48] Speaker 03: Can you move to the questions I asked regarding... Sure. [00:57:52] Speaker 00: And here's... I think I can answer them quickly, Your Honor. [00:57:55] Speaker 03: If the court considers the district court's opinion... I'd like you to point to the evidence that shows some limiting factor or some sort of narrowing of the definition of what a heuristic is, other than the fact that it's a good idea or it's a set of rules or a set of principles. [00:58:13] Speaker 00: I can give you three buckets of evidence. [00:58:16] Speaker 00: The first bucket is at 877 F sub second at 865 to 866, which is also referred to by the district court at A 181. [00:58:30] Speaker 00: This is where the term heuristic was interpreted on preliminary injunction from the related 604 patent. [00:58:39] Speaker 00: And the court referred to these three pieces of evidence. [00:58:43] Speaker 00: And then I've got the two other buckets. [00:58:46] Speaker 00: the party's agreement that a heuristic was a rule of thumb and that it had a meaning to a computer scientist. [00:58:51] Speaker 00: The second was dictionary definitions from the field defining a heuristic. [00:58:56] Speaker 00: And third, statements from the file history of the 604 patent, distinguishing a heuristic from a constraint satisfaction parameter. [00:59:05] Speaker 00: She had all of that before her because she didn't terminate it. [00:59:08] Speaker 00: She had determined the meaning of heuristic before. [00:59:12] Speaker 00: At trial, [00:59:13] Speaker 02: So heuristic is any rule except a constraint satisfaction parameter? [00:59:17] Speaker 00: No, as I said, it's a rule of thumb that's not a constraint satisfaction parameter. [00:59:22] Speaker 00: And the example that was given to the court. [00:59:24] Speaker 02: So that means it's any rule that's not a constraint satisfaction parameter. [00:59:28] Speaker 00: It's a rule of thumb. [00:59:29] Speaker 00: And there was an example. [00:59:30] Speaker 00: What does the thumb add to it? [00:59:32] Speaker 00: Well, actually, what both experts said, and if I take you to A50095, [00:59:40] Speaker 00: At A5-0095, Samsung's expert described heuristics as rules of thumb that were well recognized in the computer industry, generally implemented in the past by computer scientists, and to quote him, generally recognized as rules of thumb by computer scientists. [01:00:00] Speaker 00: That could be anything, correct? [01:00:01] Speaker 00: No, Your Honor, there actually was an example, and if I take you to A50894, [01:00:07] Speaker 00: You'll see the difference between a heuristic and a constraint satisfaction parameter. [01:00:12] Speaker 02: There could be anything except a constraint satisfaction parameter. [01:00:16] Speaker 00: It's a rule of thumb to be implemented by the computer program that's not a constraint satisfaction parameter, yes. [01:00:21] Speaker 00: And the question is, does one of the ordinary skills in the art, as opposed to you or me, recognize it? [01:00:26] Speaker 00: And two critically important facts. [01:00:30] Speaker 00: They're asking you to find a term indefinite. [01:00:33] Speaker 00: when their experts said it's well recognized in the field, well understood in the field, and implemented in the field. [01:00:41] Speaker 00: How could that make common sense? [01:00:44] Speaker 00: What's the third bucket? [01:00:46] Speaker 00: The third bucket is the fact that both experts applied the term heuristic, both to the prior art and to the infringing devices, and were able to do so with reasonable certainty. [01:00:57] Speaker 03: And the citations are... You've given me just a very broad definition. [01:01:02] Speaker 03: I mean, rule of thumb, [01:01:04] Speaker 03: is pretty broad. [01:01:06] Speaker 03: A rule of thumb recognized by experts as having general application is broad and in my view indefinite. [01:01:15] Speaker 03: What evidence is there in the record that would take me to look at that and say, okay, here's evidence introduced that narrows the definition or applies a definition of what a heuristic is in this particular pattern. [01:01:29] Speaker 00: And your honor, let me give you, this is, the question is, [01:01:33] Speaker 00: Would one of ordinary skill in the art understand it? [01:01:35] Speaker 00: Let me give you more fully the quote at 50095, if I could. [01:01:44] Speaker 00: Because, Your Honor, the task on indefiniteness is not to identify everything. [01:01:49] Speaker 03: I understand what you're saying about one skill in the art. [01:01:52] Speaker 03: But one skill in the art has got to base a definition or their view on the patent. [01:01:59] Speaker 03: So where in the patent, where do we find [01:02:02] Speaker 03: that one skilled in the art would look at and say, okay, I understand what the heuristic is in this case. [01:02:10] Speaker 00: All right. [01:02:11] Speaker 00: And I will... The best I can give you is the following. [01:02:16] Speaker 00: One is the testimony of their expert at 50095 that heuristics are... 0095? [01:02:23] Speaker 00: 50095. [01:02:36] Speaker 00: Paragraph 291. [01:02:48] Speaker 00: This is where he's trying to allow himself some room to maneuver. [01:02:58] Speaker 00: And so he says the second sentence, while the term heuristic is ambiguous even under his court's construction, [01:03:05] Speaker 00: There are techniques that have been recognized, are generally recognized, would be generally, or would generally be recognized by the computer scientists, and one of skill in the art, as rules of thumb, that do not consist solely of constraint, satisfaction, and parameters, and therefore unambiguously heuristics. [01:03:25] Speaker 03: Okay, so the term techniques, there are techniques that have been recognized. [01:03:30] Speaker 03: What are the techniques in this patent that the heuristic is referring to? [01:03:37] Speaker 00: The techniques, the specific techniques that are described in this patent are the ones that the district court referred to in its decision at 877F sub-second, where she went through and talked about how the term was used in the patent, how it had been used in the file history, how it was distinguished from a constraint satisfaction [01:03:59] Speaker 02: That's just saying that it's anything, any technique, other than a constraint satisfaction parameter, right? [01:04:05] Speaker 00: It's not, Your Honor, because... What's the limit? [01:04:09] Speaker 00: This is not respectfully and equally directed to the lawyer. [01:04:12] Speaker 00: It's directed to one of ordinary skill in the art. [01:04:14] Speaker 00: And if a heuristic has meaning to one of ordinary skill in the art, as their experts said it did, as our experts said it did, then that's sufficiently definite. [01:04:25] Speaker 00: We ought to focus on what Samsung's argument is. [01:04:27] Speaker 00: Their argument is that you have to be able to identify everything that falls within the genus of heuristics. [01:04:34] Speaker 00: And no case from this court has ever suggested that that's a requirement. [01:04:39] Speaker 00: You have a circumstance where our expert says it has an accepted definition. [01:04:45] Speaker 00: Their says, to quote him, are therefore unambiguously heuristics. [01:04:51] Speaker 00: And then both of them, [01:04:53] Speaker 00: applied the term heuristic, a rule of thumb, to the prior art, the freeway system, or to the huge product. [01:05:03] Speaker 00: And they had no trouble doing that at all. [01:05:06] Speaker 04: Thank you. [01:05:11] Speaker 00: Ms. [01:05:11] Speaker 04: Sullivan, to keep it even now, we'll give you 12 minutes of rebuttal, only if you need it, just because we went over 14 minutes on the other side. [01:05:22] Speaker 05: Thank you, Your Honor. [01:05:23] Speaker 05: I'd like to start with the 647 patent. [01:05:25] Speaker 04: Can I just get one further clarification, just to make sure there's no misunderstanding? [01:05:30] Speaker 04: I understood you to tell us that on the 959 patent, if we were to affirm the JMAW of non-infringement, you do not see that we need or should pursue the question of indefiniteness as a counterclaim. [01:05:46] Speaker 05: That is correct, Your Honor. [01:05:47] Speaker 05: We think you can affirm the judgment of non-infringement and not reach [01:05:52] Speaker 05: the indefiniteness question. [01:05:55] Speaker 05: If you do reach it, we think it's indefinite, for reasons that Judge Raina's questions have already explored. [01:06:02] Speaker 05: On 647, I want to start with analyzer server being separate, because as Judge Dyke pointed out, that is the key question. [01:06:09] Speaker 05: And I was astonished to hear Mr. Lee say that analyzer server is operating separately when running or executing the detecting and linking functions, because there is no evidence. [01:06:21] Speaker 05: of that. [01:06:22] Speaker 05: The key question is not whether the shared library code is separate when it's stored. [01:06:28] Speaker 05: It's not whether it's separate when it's placed in memory. [01:06:32] Speaker 05: The question is, is analyzer server separate when it is detecting and linking? [01:06:39] Speaker 05: That's what this court's claim construction was in Motorola. [01:06:43] Speaker 05: And there is no evidence that it's separate when it's doing the detecting and linking. [01:06:47] Speaker 05: And Dr. Mowry's important statement at [01:06:52] Speaker 05: at 13036 and 7 does not say that the library is acting separately. [01:07:00] Speaker 05: So my friend Mr. Lee pointed you, Your Honors, to the top of 13037 and to the sentence from Dr. Mowry, it has access to the code and uses it there. [01:07:13] Speaker 05: But the it in that sentence is the messenger and browser application. [01:07:17] Speaker 05: If the application is using the shared library code, the shared library code is not being a separate analyzer server and doing the detecting and linking. [01:07:27] Speaker 05: And there was a dispute about whether the shared library code is copied into the application. [01:07:35] Speaker 05: Your Honor, that's beside the point. [01:07:37] Speaker 05: Dispute about whether it's copied, there is no dispute that the code goes, in Maori's own words, [01:07:44] Speaker 05: application goes to the shared library and imports or incorporates it into the code. [01:07:48] Speaker 05: The commands in the source code say, import shared library code. [01:07:52] Speaker 05: That's how they read in the source code. [01:07:54] Speaker 05: So Your Honor, the lack of a standalone analyzer server function is crucial here. [01:08:03] Speaker 05: There is no evidence that the analyzer server or the shared library code is doing any detecting independently on its own. [01:08:10] Speaker 05: And that's your construction. [01:08:13] Speaker 05: Your honor was quite right that the testimony by Dr. Mowry about the shared library code being separate was not about it being separate when it is running. [01:08:25] Speaker 05: It can't run on its own because it can't run as a standalone. [01:08:28] Speaker 05: That's Mowry's own admission. [01:08:30] Speaker 05: It cannot run as a standalone code. [01:08:32] Speaker 05: And it isn't ever running alone when it's doing the detecting and linking. [01:08:36] Speaker 05: And because it's not running alone, there is no separate analyzer server. [01:08:40] Speaker 05: And that's enough to decide the case. [01:08:42] Speaker 05: But I gave you a second dispositive ground for why we went on 647. [01:08:46] Speaker 05: And I'm afraid Mr. Lee created quite a bit of confusion about it. [01:08:49] Speaker 05: So I want to go back and see if I can say it one more time, very simply. [01:08:53] Speaker 05: This is my glue code argument. [01:08:55] Speaker 05: And it has nothing to do with specified connection. [01:08:58] Speaker 05: Your construction gave us two important readings of the claim. [01:09:02] Speaker 05: Analyzer server has to perform linking separately from the application. [01:09:08] Speaker 05: And that's what I was talking about. [01:09:10] Speaker 05: You also said that the linked action has to be through a specified connection. [01:09:15] Speaker 05: But I wasn't talking about that when I talked to you about blue code. [01:09:18] Speaker 05: What I'm asking you to do is go back and look at Maori pre-Motorola, where he says there are three routines that do the linking. [01:09:25] Speaker 05: And I want you to go back and look at Maori post-Motorola and see that he points to the exact same three routines that do the linking. [01:09:33] Speaker 05: And this really takes only six pages of the record. [01:09:36] Speaker 05: You just look at 10, 8, 5, 7, [01:09:39] Speaker 05: 10-8-5-9 and 10-8-6-3. [01:09:42] Speaker 05: And you'll see the three routines that do the linking, according to Maori. [01:09:46] Speaker 05: Then you go to 13-0-3-3, 13-0-3-4, after the Motorola construction. [01:09:54] Speaker 05: And you're going to see those same three routines that do the linking. [01:09:57] Speaker 05: This has nothing to do with shared libraries. [01:09:58] Speaker 05: These routines are in the application. [01:10:01] Speaker 05: And the key point is when you go back to his post-Motorola construction, you ask, where's the code that does the linking? [01:10:07] Speaker 05: He says, again, it's in the client or from the client. [01:10:11] Speaker 05: It's in messenger or from browser. [01:10:14] Speaker 05: And I gave you the lines on that. [01:10:15] Speaker 05: It's 13033 lines 8 and 20 and 13034 line 19. [01:10:20] Speaker 05: So, your honor, we think we win a shared library because they're not operating standalone. [01:10:26] Speaker 05: But we think we win even without getting to shared libraries because the linking code is in the client. [01:10:33] Speaker 05: And if anything that's in the client cannot be an analyzer server or a server routine because it is not separate from the client. [01:10:40] Speaker 05: I'm not arguing anything about what our experts said. [01:10:43] Speaker 05: Mr. Lee tried to put this back into a battle of the experts' modes. [01:10:46] Speaker 05: I'm relying solely on Dr. Mowry, Apple's expert, and his admissions. [01:10:50] Speaker 05: And it's all there. [01:10:51] Speaker 05: There is no separate analyzer server that is performing the linking. [01:10:55] Speaker 05: And there is, second, no separate analyzer server that's performing the detecting because the application is importing or importing [01:11:02] Speaker 05: incorporating the library code into it in order to do the detecting. [01:11:07] Speaker 05: Analyzer server is not met and the 647 judgment should be reversed. [01:11:14] Speaker 05: I'm sorry to belabor it, but I just thought it was very important to clarify that we win on analyzer server without getting to specified connection. [01:11:21] Speaker 05: Your Honor Judge Raina, with respect to your questions about specified connection, I couldn't agree more with you that what Apple is doing here is going back to its pre-motorola construction of associating. [01:11:31] Speaker 05: But I'll leave to the briefs the explanation of why. [01:11:34] Speaker 05: We think linking means adjoining. [01:11:36] Speaker 05: That's what you said in Motorola. [01:11:38] Speaker 05: What you need to join is the user selection of an action and the performance of the action. [01:11:43] Speaker 05: In the old world, but remember this patent is a very old patent. [01:11:47] Speaker 05: It arose not in a world of mobile phones. [01:11:49] Speaker 05: It arose in a world of desktop computers. [01:11:52] Speaker 05: And in the world of mobile phones with Android and an open platform, you don't have a linking and joining between the user selecting an action [01:12:00] Speaker 05: and the call being made or the phone number being stored, it has to go through that whole long process that Mr. Lee told you about, about intent objects, populating start activity, which then asks for a world of applications that might perform the call or store the address. [01:12:15] Speaker 05: That is not linking or joining. [01:12:16] Speaker 05: So we think we went on specified connection too, but I'll leave it to the brief to explain. [01:12:21] Speaker 05: Your Honor, on 721. [01:12:25] Speaker 03: Did I understand, Mr. Lee, to say that this court's [01:12:29] Speaker 03: Let's say interpretation of analyzer servo is read to the jury. [01:12:35] Speaker 05: Yes, Your Honor. [01:12:36] Speaker 05: He's correct that we're not disputing the instruction. [01:12:39] Speaker 05: But we are strenuously disputing that any reasonable juror could find infringement under this Court's construction as instructed to the jury. [01:12:49] Speaker 05: So there's no substantial evidence to support it. [01:12:51] Speaker 05: So that's correct. [01:12:53] Speaker 05: On 721, I want to correct a couple of factual points. [01:12:58] Speaker 05: The conjoint study does not support commercial success for the 721. [01:13:03] Speaker 05: Mr. Lee cited you to 51440, but that's Hauser on the 172 patent. [01:13:10] Speaker 05: Hauser did not test the 721 patent for phones. [01:13:15] Speaker 05: Second, on teaching away, there's no factual dispute on teaching away. [01:13:19] Speaker 05: Sorry, there's no factual dispute on what the reference has said. [01:13:22] Speaker 05: And the dispute on teaching away we would respect as [01:13:25] Speaker 05: respectfully suggest is a legal question. [01:13:27] Speaker 05: Your Honor, I think the answer to the question, does Plaisant teach away, is a legal question you can answer. [01:13:32] Speaker 05: You looked at the page. [01:13:34] Speaker 05: You cited the page where Plaisant talks about how the use of sliders is encouraging. [01:13:39] Speaker 05: And the use of sliders is an effective way of, it says positive things about how it solves the inadvertent activation problem. [01:13:47] Speaker 05: And as a matter of law, it can't be the case that a reference that [01:13:54] Speaker 05: says that something has advantages, but it talks about something is preferred that has advantages, but it's not always preferred because there might be other ways of doing it. [01:14:03] Speaker 05: There might be two things the reference points to. [01:14:05] Speaker 05: That's not teaching away. [01:14:07] Speaker 05: And in fact, this court in allergen and gaderma, which we cite in our briefs, has pointed out as a matter of law that there's no teaching away. [01:14:14] Speaker 05: So if we have weak evidence of secondary indicia, we have strong prima facie case of obviousness, and we have a legal error on teaching away, [01:14:21] Speaker 05: We respectfully suggest that you should hold as a matter of law on the 721 that it's invalid as obvious. [01:14:28] Speaker 05: On heuristics, Your Honor, we don't think you need to reach it, but if you reach it, just because an expert can construe the claim does not satisfy Nautilus. [01:14:40] Speaker 05: It has to have boundaries, and I didn't hear any boundaries in Mr. Lee's account. [01:14:47] Speaker 05: I think I have nothing more to say, Your Honor. [01:14:48] Speaker 05: The key thing is we ask that you reverse on 647 because under your claim construction, you can't find infringement. [01:14:54] Speaker 05: No separateness between the analyzer server or the server routines and their performance of detecting and linking functions. [01:15:01] Speaker 05: And please focus on the language of the claim. [01:15:04] Speaker 05: It's not an analyzer server in the abstract or a routine in the abstract. [01:15:07] Speaker 05: It has to be the analyzer server or server routine for detecting and linking. [01:15:12] Speaker 05: So the key to the separateness question is to ask, is there separateness? [01:15:17] Speaker 05: when the detecting and linking is being done and there is not. [01:15:21] Speaker 05: Thank you, Your Honor.