[00:00:00] Speaker 05:
015-2069, Arendi versus Apple.

[00:00:06] Speaker 01:
39 of the 174.

[00:00:14] Speaker 04:
That's the other one I didn't get.

[00:00:59] Speaker 05:
Mr. Sunstein, please proceed when you're ready.

[00:01:03] Speaker 02:
Honorable judges, good morning.

[00:01:08] Speaker 02:
The board's construction of application program as being independently executable, but also including dependent subsidiary programs, is wrong.

[00:01:22] Speaker 02:
Not only because it is self-contradictory, but also because it ignores the problem

[00:01:28] Speaker 02:
solved by the invention and it misunderstands the prior R. The problem solved by the 854 patent is automating the interaction between a word processor on the one hand and a separate contact manager on the other.

[00:01:47] Speaker 02:
The reason why it is challenging to get information out of the contact manager and to use it in the document in the word processor

[00:01:56] Speaker 02:
is that both the contact manager and the word processor are separate application programs.

[00:02:03] Speaker 02:
That is, they're independently executable.

[00:02:07] Speaker 02:
Each program can be executed, sorry, can be activated and run alone without the other.

[00:02:13] Speaker 05:
When you say independently executable, but that's not what the district court held.

[00:02:17] Speaker 05:
It held independent.

[00:02:22] Speaker 05:
and executable, not independently executable, correct?

[00:02:26] Speaker 02:
Well, the board does not distinguish between independently executable program and independent executable program.

[00:02:35] Speaker 02:
If you look at the record in A-10, footnote 2, and in the other decision, A-78 footnote 1.

[00:02:43] Speaker 02:
This point is discussed in note 7 of the appeal brief, page 39.

[00:02:46] Speaker 02:
Now, maybe

[00:02:49] Speaker 02:
They just made a mistake and left off the ly.

[00:02:53] Speaker 02:
That was my thinking.

[00:02:54] Speaker 02:
But if they meant something different, we have to take into account that the word independent is an adjective.

[00:03:03] Speaker 02:
I know this from school a few years ago.

[00:03:07] Speaker 02:
And if it's an adjective, it cannot be modifying another adjective, namely executable.

[00:03:14] Speaker 02:
It therefore must modify program.

[00:03:18] Speaker 02:
An application program is an independent program, and it's also an executable program.

[00:03:25] Speaker 02:
We have the fact that executable doesn't add anything, right?

[00:03:29] Speaker 02:
All programs that work are executable.

[00:03:32] Speaker 02:
And what is an independent program?

[00:03:35] Speaker 02:
I'm not sure, but I'm pretty sure that that definition, if it was intended as what it was written, and it's supposedly different, notwithstanding what the board said,

[00:03:46] Speaker 02:
from independently executable reads the word application out of the claim.

[00:03:52] Speaker 02:
The claim says application program.

[00:03:54] Speaker 02:
It doesn't say simply program.

[00:03:56] Speaker 02:
It says application program.

[00:04:00] Speaker 02:
And we think application program means something that's independently executable.

[00:04:06] Speaker 02:
And if you look at the language, if you look at the examples that are in the specification,

[00:04:15] Speaker 02:
Every program that's discussed there is manifestly a program that's independently executable.

[00:04:23] Speaker 01:
But what in the specification would limit the application program to an independently executable program as opposed to a subsidiary program?

[00:04:34] Speaker 02:
In other words, why does application have any distinction in the claim as opposed to simply saying program?

[00:04:42] Speaker 02:
And the reason is it's not any old program.

[00:04:45] Speaker 02:
The problem solved by this technology is to allow the interaction between two programs that normally have to be invoked separately.

[00:04:55] Speaker 02:
If I want to take something from my contact management application and insert it into the word processor application, I have to do some work.

[00:05:08] Speaker 02:
And this is what struck the inventor at the time of the invention.

[00:05:11] Speaker 02:
of this technology.

[00:05:13] Speaker 02:
The work would be I have to open the contact management program.

[00:05:17] Speaker 02:
I have to extract the information of interest with respect to the contact.

[00:05:22] Speaker 02:
I then have to separately open the word processing program and use that information in the document open in the word processing program.

[00:05:30] Speaker 02:
That's a lot of work.

[00:05:32] Speaker 02:
So what this technology does, and it's very clever in doing so in my judgment,

[00:05:38] Speaker 02:
While working within the word processing program, I can access information in the independently executable contact management.

[00:05:46] Speaker 03:
I understand that that's a lot of what you do describe in the spec, but what in the claims actually requires this independently executable program?

[00:05:57] Speaker 02:
The word application program.

[00:06:00] Speaker 02:
There's a first one and a second one that's required in claim one.

[00:06:04] Speaker 03:
So are you saying that these

[00:06:08] Speaker 03:
Subprograms are not application programs?

[00:06:11] Speaker 02:
In the prior art, when you go to Hakimovic and Domini, you have precisely programs that work only at the behest of the word processor.

[00:06:24] Speaker 02:
They are subsidiary dependent programs.

[00:06:27] Speaker 02:
They must and can only be activated by the independently executable program, namely the word processor.

[00:06:37] Speaker 02:
the testimony of Dr. Levy that's in the record.

[00:06:41] Speaker 02:
Lively ignored by the PTAB makes that abundantly clear, but we also have the words that are directly... But aren't those programs in the prior art referred to as application programs?

[00:06:54] Speaker 02:
No.

[00:06:55] Speaker 02:
In fact, this is one of the other things that the PTAB did.

[00:07:01] Speaker 02:
The PTAB used the prior art

[00:07:04] Speaker 02:
to try to interpret what the word application program means in the claim.

[00:07:08] Speaker 02:
Instead of looking at the examples in the specification.

[00:07:13] Speaker 03:
There are examples in the specification, but it doesn't say that those are the only possible embodiments that could be in the claims.

[00:07:22] Speaker 03:
Aren't you reading those limitations into the claims just because you refer to word or outlook

[00:07:28] Speaker 03:
And the spec doesn't mean those are the only things that could constitute application.

[00:07:32] Speaker 02:
Well, and in fact, what's interesting, if you look in the background art section of the patent, the background art section sets up the problem.

[00:07:42] Speaker 02:
And it uses the word word processor.

[00:07:44] Speaker 02:
And it uses the word something like contact management program as generic stand ins for a whole bunch of programs that manifestly, when you look at them, are all independently executable.

[00:07:55] Speaker 02:
So I think the way the problem's set up in the specification tells the story.

[00:08:02] Speaker 02:
But interestingly, the references that are relied upon by the board as well use the word in a way that's consistent with what the claim requires.

[00:08:15] Speaker 02:
Domini says this.

[00:08:17] Speaker 02:
The board seized on one passage in Domini, and they said, that proves that Domini is an application program.

[00:08:24] Speaker 02:
That's what the board did.

[00:08:26] Speaker 02:
May I trouble you for some water or fresh glass?

[00:08:31] Speaker 03:
Well, doesn't Domini actually define application program to include the spell checker and grammar checker?

[00:08:39] Speaker 02:
I disagree that it does.

[00:08:41] Speaker 02:
I think it does not.

[00:08:43] Speaker 02:
The one passage that the board cited does not expressly tag the spell checker by itself as an application program.

[00:08:50] Speaker 02:
In fact, the only program type that Domini specifically tags

[00:08:55] Speaker 02:
as an application program is the word processor.

[00:08:59] Speaker 02:
Take a look at Domini, column five, lines one to four, A250.

[00:09:03] Speaker 02:
The preferred embodiment of the present invention is represented by Word version 8.0, which is a word processing application program produced by Microsoft Corporation.

[00:09:15] Speaker 02:
There are repeated references throughout the text to preferred application program module, preferably the Sprell

[00:09:23] Speaker 02:
And this is column 16, lines 58 to 59 and 8255.

[00:09:29] Speaker 02:
Preferably, the spell checker program module is called by the preferred application program module.

[00:09:37] Speaker 05:
I certainly see all of the references you're pointing us to.

[00:09:40] Speaker 05:
But what about column 7, line 47, where the sentence reads, the application programs 37 may include

[00:09:53] Speaker 05:
a number of different programs, such as a word processing program, comma, a spell checker program, comma, a grammar checker program.

[00:10:03] Speaker 05:
And so I see all the points that you're making.

[00:10:06] Speaker 05:
And I think that the way you're interpreting this cryo art reference is, quite frankly, reasonable.

[00:10:12] Speaker 05:
But the problem is the board points to this sentence, which makes their interpretation also reasonable.

[00:10:19] Speaker 05:
And I have to give them deference, because this is a fact question.

[00:10:22] Speaker 05:
So how could I possibly say their decision is not supported by substantial evidence in light of this sentence?

[00:10:31] Speaker 02:
The fact that the construction of Domini everywhere else shows that the board's reading of that is wrong.

[00:10:39] Speaker 02:
Number one, we have to remember that their reading of this document

[00:10:46] Speaker 02:
is without the benefit of the examples in the specification, right?

[00:10:50] Speaker 05:
But do you agree that this sentence in the abstract, suppose this were the only sentence in Domini, this sentence in the abstract which the board relied on, suppose this is the only sentence, says the application programs may include a spell checking program, checker program.

[00:11:07] Speaker 05:
So wouldn't that define for Domini, if this were the only sentence in this patent, a spell checker program as an application program?

[00:11:16] Speaker 02:
I think you can argue to the contrary rather effectively, because when you read in that passage, spell checker program, it didn't say spell checker application program, did it?

[00:11:29] Speaker 02:
It said spell checker program.

[00:11:31] Speaker 02:
Nowhere does Domini expressly tag, even in that passage, the spell checker by itself as an application program.

[00:11:39] Speaker 03:
It says the application program.

[00:11:41] Speaker 02:
Yeah, it's a predicate nominative.

[00:11:43] Speaker 02:
I'll agree with you, it's in the predicate nominative.

[00:11:46] Speaker 02:
But in the predicate nominative, after the word are is.

[00:11:52] Speaker 05:
I got a 15-year-old that could use your help with grammar.

[00:11:58] Speaker 05:
Yeah, I don't even know that I know what a predicate nominative is.

[00:12:02] Speaker 05:
But they didn't teach that at MIT.

[00:12:04] Speaker 02:
Well, I did graduate work in English after MIT myself.

[00:12:08] Speaker 02:
Just kidding about offering you a job, by the way.

[00:12:15] Speaker 02:
Well, so much of what we do is about language.

[00:12:20] Speaker 02:
And what the board did in this case is that it used the language in the references of prior art to try to interpret the claim language that was used by the patent.

[00:12:32] Speaker 03:
Let's talk about language because that's exactly what patent analysis is all about.

[00:12:38] Speaker 03:
And there is nothing in the claims of the patent that excludes

[00:12:43] Speaker 03:
these kinds of subsidiary programs from being application programs.

[00:12:47] Speaker 02:
And the board, in fact, takes that position, doesn't it?

[00:12:51] Speaker 02:
The board says, by the way, we don't like what the expert Dr. Levy is doing by looking at the examples in the specification to figure out what the claims mean, because that means reading the claims too narrow.

[00:13:06] Speaker 03:
But also we have... However, correct.

[00:13:20] Speaker 02:
In light of the specification, and we have language in Proxycon and Philips both,

[00:13:25] Speaker 02:
proxicon involving review of IPR proceedings, saying that you cannot ignore the language in the specification, but ignore it, the board did here, for sure.

[00:13:37] Speaker 02:
And even if the board were going to get its understanding of the word application program from these prior art references, why did they seize only on that one passage?

[00:13:46] Speaker 02:
Why didn't they talk about the other passages in Domini?

[00:13:50] Speaker 02:
If you're going to read Domini, why not read the entire reference as opposed to one passage?

[00:13:55] Speaker 02:
Why not understand the dominant?

[00:13:57] Speaker 03:
Well, we can't assume that the board didn't read the entire reference.

[00:13:59] Speaker 03:
The board cited to one passage that used the exact same language that is in the claim.

[00:14:05] Speaker 02:
Fair enough.

[00:14:06] Speaker 02:
What the board cited was one sentence in the entire document.

[00:14:12] Speaker 02:
They didn't cite the language that I said, preferably the spell checker program module was called by the preferred application program module.

[00:14:20] Speaker 02:
And then Dom and I makes clear that the preferred application program module is Microsoft Word.

[00:14:27] Speaker 05:
You are well into your rebuttal time.

[00:14:30] Speaker 05:
You keep going, but if you'd like to reserve some time.

[00:14:32] Speaker 02:
Thank you.

[00:14:32] Speaker 02:
I would just like to mention one more thing in this context.

[00:14:37] Speaker 02:
And that is Hakemovich uses these words as well.

[00:14:41] Speaker 02:
I don't know why the board didn't mention that.

[00:14:43] Speaker 02:
And I don't know why the board failed to mention Dr. Levy's testimony.

[00:14:47] Speaker 02:
made no mention of it with respect to Hakimovic.

[00:14:50] Speaker 02:
And you can't say that he's engaged in claim interpretation there.

[00:14:54] Speaker 02:
And so Hakimovic tags the word processor as the application program, whereas the word completion module is called a module or the autocomplete utility and is never called an application program.

[00:15:06] Speaker 02:
I think the extrinsic record here, taking into account these references,

[00:15:11] Speaker 02:
means that application programs should be construed as a program that is independently executable.

[00:15:17] Speaker 02:
Thank you.

[00:15:18] Speaker 02:
I'll reserve the rest of my time.

[00:15:19] Speaker 04:
Mr. Pelmore?

[00:15:22] Speaker 00:
Thank you, Your Honor.

[00:15:30] Speaker 00:
May it please the Court?

[00:15:31] Speaker 00:
The Board correctly construed the broad claim term application program and correctly rejected Arendi's attempt to artificially narrow it.

[00:15:38] Speaker 00:
In particular, the board correctly found that the broadest reasonable construction of application program does not exclude so-called subsidiary programs, nor does it encompass only programs that satisfy Arendi's checklist of features.

[00:15:56] Speaker 00:
And critically, the board correctly found that the broadest reasonable construction of application program includes programs that are expressly called application programs in the prior arts.

[00:16:08] Speaker 03:
Just under Phillips, would you agree that the specification is specific enough to limit application program?

[00:16:18] Speaker 00:
I wouldn't agree at all, Judge Amali.

[00:16:21] Speaker 00:
I think we would win this case under Phillips as well.

[00:16:24] Speaker 00:
There are a couple things to point out about the specification.

[00:16:26] Speaker 00:
One, the specification never uses the phrase application program.

[00:16:30] Speaker 00:
So this case turns on the meaning of the claim term application program.

[00:16:34] Speaker 00:
That term doesn't appear in the specification.

[00:16:38] Speaker 00:
None of the features that Arendi is talking about, Arendi has a checklist of what a program has to be in order to be an application program.

[00:16:46] Speaker 00:
You have to be able to open it by double clicking, it has to run in a separate window, and it has to run asynchronously.

[00:16:53] Speaker 00:
Critically, none of those features is even mentioned in the specification.

[00:16:58] Speaker 00:
One would think that if the inventor had intended to limit the broad claim term application program,

[00:17:03] Speaker 00:
through the specification, the inventor would have used that term in the specification, and if he had intended to limit the term to these common features of the embodiments, those features would have been discussed.

[00:17:15] Speaker 03:
Well, the examples of Microsoft Word and Microsoft Outlook, I mean, those would all satisfy those criteria, right?

[00:17:22] Speaker 00:
Those arguably would satisfy the criteria, but none of those features is mentioned, and that's critical because, of course, under Phillips,

[00:17:28] Speaker 00:
It's impermissible, of course claim terms are read in the context of the specification.

[00:17:33] Speaker 00:
That's always the case.

[00:17:34] Speaker 00:
But it's impermissible to limit broad claim language to the common features of the embodiments.

[00:17:40] Speaker 00:
And that's what's happening here.

[00:17:41] Speaker 00:
And none of the features, so even full stop, what Arendi is trying to do would fail.

[00:17:47] Speaker 00:
But particularly in this case, where one, none of those features is even discussed, two, where the claim term is not mentioned in the specification, and three,

[00:17:56] Speaker 00:
where the specification, as the court recognized, expressly disclaims that kind of embodiment limiting claim interpretation.

[00:18:03] Speaker 00:
We cite those passages at page 31 and 32 of our brief.

[00:18:08] Speaker 00:
Given all of that, this attempt to limit the broad claim terms fails.

[00:18:13] Speaker 03:
And I think the court... What does the concept of being independent mean in independent executable program?

[00:18:22] Speaker 00:
I think all the board meant by that, I think it's quite simple, was that it's a separate program.

[00:18:26] Speaker 00:
whether it acts as an add-on or whether it acts as a standalone, it has some separate identity.

[00:18:30] Speaker 05:
I'd love to know what you mean by separate.

[00:18:33] Speaker 00:
Well, I think I can show that graphically to you.

[00:18:36] Speaker 05:
Are they in separate parts of the RAM, for example?

[00:18:39] Speaker 05:
Do you mean that they have to be coded separately?

[00:18:41] Speaker 05:
They were written at different times.

[00:18:44] Speaker 05:
What is it that you think you mean by separate?

[00:18:46] Speaker 00:
I think if you look at figure one, the court was talking about figure one of Dominion.

[00:18:51] Speaker 00:
I think this highlights it.

[00:18:52] Speaker 00:
So this is reproduced at JA 12.

[00:18:55] Speaker 00:
In the board's opinion, the board found it very important.

[00:18:58] Speaker 00:
And this is the Domini system.

[00:19:00] Speaker 00:
The entire system is graphically displayed here.

[00:19:03] Speaker 00:
And you see, if you look at the bottom left corner, you have an operating system 36.

[00:19:08] Speaker 00:
And then you have a number of programs all under the number 37.

[00:19:12] Speaker 00:
You have 37A, the word processing program, 37B, the spell checker program, 37C, the grammar checker program.

[00:19:19] Speaker 00:
Then you go over to the right, 37D, application program number four.

[00:19:24] Speaker 00:
37e, application program, number five.

[00:19:27] Speaker 00:
So application programs one through three are the word processor, the spell checker, and the grammar checker.

[00:19:34] Speaker 00:
What Arendi is trying to do here is, in a sense, draw a line between 37a and 37b and say, well, under DOMINI, the word processing program is an application program.

[00:19:47] Speaker 00:
But for reasons not disclosed anywhere in DOMINI, everything on the right of the line

[00:19:51] Speaker 00:
37B and 37C are not application programs.

[00:19:55] Speaker 00:
The board rejected that as a factual matter.

[00:19:57] Speaker 05:
I understand that that is the factual component of what Dominey discloses.

[00:20:03] Speaker 05:
But going back to claim construction, what does the board mean by independent?

[00:20:09] Speaker 00:
Right.

[00:20:09] Speaker 00:
Well, it's critical to point out, one, that this... I don't care about Domini for a second.

[00:20:13] Speaker 00:
We'll put Domini aside.

[00:20:14] Speaker 00:
Independent, executable, that phrase doesn't appear in the patent, of course, but this is about application program... The best instruction the board gave it, you're not objecting to that.

[00:20:21] Speaker 00:
Right, but the board read... The critical argument that was made by Orendi, both before the board and here, was that application program excludes so-called subsidiary programs, or put another way, that it encompasses only programs that satisfy this checklist of common features from the embodiment.

[00:20:39] Speaker 00:
That was the only argument that Arendi advanced before the board.

[00:20:42] Speaker 00:
It's the only argument that it advances here about why the prior art did not disclose an application program.

[00:20:47] Speaker 05:
Are you going to get to an answer to my question at some point?

[00:20:49] Speaker 00:
Yeah, Your Honor, the court didn't elaborate, the PTO didn't, the board, I'm sorry, didn't elaborate on this phrase, independent executable, but it becomes apparent when you read the entire opinion what it meant, and it read it in the context of

[00:21:03] Speaker 00:
of the prior art.

[00:21:04] Speaker 00:
And it's permissible to look at prior art when doing claim construction.

[00:21:08] Speaker 00:
And it looked at two things.

[00:21:10] Speaker 00:
It looked at the Domine graphic and said it showed that these are all separate programs.

[00:21:18] Speaker 00:
They all exist at separate places in memory and on the hard drive.

[00:21:21] Speaker 00:
And then on the facing page, A13, it recognized, as the court has recognized, that these are all labeled application programs.

[00:21:30] Speaker 00:
And then

[00:21:31] Speaker 00:
For when it was discussing Hakimovic, the court recognized that Hakimovic can run in an application-independent mode, meaning that it can run with any number of other applications.

[00:21:43] Speaker 00:
And that was enough.

[00:21:45] Speaker 00:
I don't think that the court, the board, needed to elaborate on this idea of independent executable.

[00:21:52] Speaker 00:
It's not in the patent.

[00:21:55] Speaker 00:
What's in the patent is application program.

[00:21:57] Speaker 00:
And it was simply, it was satisfied that all this calls for is a separate program or a conceptually distinct.

[00:22:02] Speaker 03:
If we disagree with the board's construction of application program, would you agree that there is no anticipation under either Hemelovich or Domini?

[00:22:12] Speaker 00:
Well, I think it would have to go back for the board to evaluate under a proper claim construction.

[00:22:18] Speaker 00:
But I don't think there's any basis for that here because again, the critical issue was

[00:22:23] Speaker 00:
Whatever the affirmative meaning of application program was, does it exclude subsidiary programs?

[00:22:29] Speaker 00:
That was the nub of the issue before the board.

[00:22:33] Speaker 00:
That's the nub of the issue before this court.

[00:22:36] Speaker 00:
The board explained at length why that was incorrect, because it has no support in the claim language.

[00:22:42] Speaker 00:
It has no support in the specification, which doesn't use application program, which doesn't discuss any of these features.

[00:22:48] Speaker 00:
And it has no support in the prior art, which

[00:22:50] Speaker 00:
a permissible source of extrinsic evidence when doing claim construction, which clearly and expressly labels programs that Arendy seeks to exclude under the broadest reasonable construction.

[00:23:02] Speaker 00:
Prior Art calls those application programs.

[00:23:05] Speaker 03:
Let me ask you the same question with respect to associated.

[00:23:08] Speaker 03:
If we find that the board erred with respect to that construction or that term,

[00:23:14] Speaker 03:
Would that still have to go back, or do you think that there's anticipation even under Orendi's construction?

[00:23:21] Speaker 00:
Well, a couple points on that, Judge O'Malley.

[00:23:22] Speaker 00:
One, we don't think Orendi has properly advanced that argument because it hasn't shown any prejudice from the board's construction.

[00:23:29] Speaker 00:
Putting that aside, I think it would have to go back because it's not at all clear what Orendi means by this idea of a pre-existing relationship.

[00:23:37] Speaker 00:
And I think there's a very strong argument that prior art would disclose associated even in that sense, for instance,

[00:23:44] Speaker 00:
The Domini grammar checker, one of the examples we talk about in our brief, recites an example of using have when really you should use has, and the grammar checker alerts you to that.

[00:23:56] Speaker 00:
I would suggest there's a pre-existing relationship between have and has as the two forms of the same word.

[00:24:02] Speaker 00:
So it's not clear why even under Arendy's... We're English major.

[00:24:08] Speaker 00:
It's not clear even under Arendy's construction... At least I get this one, though.

[00:24:11] Speaker 00:
Right.

[00:24:12] Speaker 00:
Why the prior art wouldn't be invalidating.

[00:24:15] Speaker 00:
But putting that aside, I think that the board's construction I've associated with is quite clearly correct.

[00:24:22] Speaker 00:
It's not a technical term.

[00:24:24] Speaker 00:
It just means connected or related to.

[00:24:26] Speaker 00:
And again, Arendi is trying to tease out common features from the embodiments and put a gloss on that.

[00:24:33] Speaker 03:
But the board's argument or the board's rationale was a little odd, don't you agree?

[00:24:38] Speaker 03:
That the fact that there could be more than one response doesn't really have anything to do with whether there's a pre-existing relationship.

[00:24:47] Speaker 00:
Well, I think the board's fundamental submission was that this is not a technical term.

[00:24:52] Speaker 00:
It just means connected or related to

[00:24:55] Speaker 00:
And, in fact, that's, as we point out in our brief, that's exactly the same construction that Arendi has used in district court litigation.

[00:25:02] Speaker 00:
It just said it's connected or related to.

[00:25:05] Speaker 00:
And whether it's have and has, or whether it's a misspelled version of a word and a correctly spelled version of a word, those things are associated with, they're related, and they're connected.

[00:25:16] Speaker 05:
I think the board was- Can I ask you to go back to independent and executable for a second?

[00:25:21] Speaker 05:
Sure.

[00:25:21] Speaker 05:
Because I'm still struggling a little bit with this.

[00:25:24] Speaker 05:
Do you believe that the board meant independent executable program to be the same as independently executable program, or do you believe that the board drew a distinction and adopted a different claim construction than the patentee wanted?

[00:25:42] Speaker 00:
I think the board did adopt a different claim construction.

[00:25:45] Speaker 00:
I think Arendi would lose either way.

[00:25:47] Speaker 00:
But I think it's critical to point out what happened here, which was in the initial decision the board said,

[00:25:53] Speaker 00:
we construed as an independent executable program and is not limited to the particular embodiments, which is an argument that Arandi made at the preliminary stage.

[00:26:03] Speaker 00:
Arandi then said, we'll assume that was a typo.

[00:26:05] Speaker 00:
We think you really meant independently executable.

[00:26:08] Speaker 00:
And the board said, no.

[00:26:09] Speaker 00:
And if you look at A12, the board again says it's independent executable.

[00:26:14] Speaker 00:
But critically, the Senate's right before that

[00:26:17] Speaker 00:
is Pat Nohner has not shown that the broadest reasonable construction of application program excludes subsidiary programs.

[00:26:24] Speaker 00:
We determined that application program is construed as an independent executable program.

[00:26:29] Speaker 00:
The board obviously didn't perceive any dissonance between those two statements, and there is none.

[00:26:35] Speaker 05:
And all the board was... But I do.

[00:26:41] Speaker 05:
And the reason I do is tell me how a spell checker is independently executable outside of the word program.

[00:26:48] Speaker 00:
Well, that is not what the board meant by independent executable.

[00:26:52] Speaker 00:
It could not have meant that because it had just gone through page after page of rejecting that very interpretation of application program.

[00:26:59] Speaker 00:
Keep in mind, Judge Moore, that this independent executable phrase does not appear in the 854 patent.

[00:27:06] Speaker 05:
Yeah, but that's the construction they adopted.

[00:27:08] Speaker 05:
And so that's a question of law.

[00:27:11] Speaker 05:
You haven't appealed that construction.

[00:27:13] Speaker 00:
But no, the construction was

[00:27:16] Speaker 00:
The construction was in two parts.

[00:27:17] Speaker 00:
It was that it does not exclude subsidiary programs and that all it requires is that there be an independent executable program.

[00:27:25] Speaker 00:
And then it read this in light of DOMINI and in light of the figure that we were talking about before showing that each of these programs occupies a different space on the hard drive, a different space in memory.

[00:27:36] Speaker 00:
They're all called application programs.

[00:27:38] Speaker 00:
There's no support in DOMINI nor is there any support in the specification for this idea

[00:27:43] Speaker 00:
of subsidiary programs being excluded or a requirement that you have to double click on it in order for it to be an application program.

[00:27:52] Speaker 05:
I agree.

[00:27:52] Speaker 05:
The board's construction includes both parts.

[00:27:56] Speaker 05:
I mean, I think that that's the most accurate reading of their opinion.

[00:28:01] Speaker 05:
I just am trying to figure out what they mean by independent.

[00:28:05] Speaker 05:
And certainly they mean independently executable.

[00:28:09] Speaker 05:
You said under either circumstance, Arundi loses.

[00:28:11] Speaker 05:
If the board said the construction was independently executable, wouldn't you agree that a spell-checking subsidiary program is not independently executable?

[00:28:21] Speaker 00:
No, I wouldn't agree, Judge Moore.

[00:28:22] Speaker 00:
I think it still runs separately.

[00:28:25] Speaker 00:
That doesn't mean that it runs by itself in the sense of double-clicking.

[00:28:30] Speaker 00:
It means it has separate identity.

[00:28:31] Speaker 00:
It performs a different function.

[00:28:33] Speaker 00:
The word processor can work without the spell-checker.

[00:28:36] Speaker 05:
But how could you execute it?

[00:28:39] Speaker 05:
Independent of the word program.

[00:28:41] Speaker 00:
Well, and if you look at Domini, you click on it to run the spell checker.

[00:28:45] Speaker 00:
So the user does execute it.

[00:28:48] Speaker 00:
So I don't think that's, it just means that it runs.

[00:28:50] Speaker 05:
But you can only click on it within the program.

[00:28:53] Speaker 00:
That's correct.

[00:28:54] Speaker 00:
And it is expressly called an application program in the Domini patent.

[00:28:59] Speaker 05:
Yeah, I understand.

[00:29:00] Speaker 00:
So I think it's critical to point out here that this is a broadest reasonable construction case, that the term at issue is application program.

[00:29:07] Speaker 00:
that the only argument advanced by Arendy below or in this court for why the prior art did not disclose an application program was that application program excluded subsidiary programs, meaning that it only includes programs that include a checklist of features.

[00:29:23] Speaker 00:
And under the broadest reasonable construction of application program, I would suggest that that argument fails.

[00:29:30] Speaker 04:
Okay.

[00:29:30] Speaker 04:
Thank you, Mr. Calmore.

[00:29:32] Speaker 04:
Mr. Stunsey, you have a little bit of rebuttal time left.

[00:29:37] Speaker 02:
Interestingly, the board's construction of application program as failing to exclude dependent subsidiary programs first was announced in its decision.

[00:29:54] Speaker 02:
So in that respect, this case is similar to SAS Institute versus CompleteSoft LLC decided by this court on June 10.

[00:30:05] Speaker 02:
In that case,

[00:30:06] Speaker 02:
a remand was earned.

[00:30:08] Speaker 02:
But in this case, we have a definition that's self-contradictory.

[00:30:13] Speaker 02:
A remand does nothing when the board got the claim construction so very, very wrong.

[00:30:22] Speaker 02:
We have the fact that with respect to application independence in Hakimovic itself, column 4, lines 24 to 28 at A, 851,

[00:30:36] Speaker 02:
Application independence.

[00:30:38] Speaker 02:
This is Hakimovic explaining it, and the board just got it wrong.

[00:30:42] Speaker 02:
Application independence is the ability of the same word completion system, not application program.

[00:30:49] Speaker 02:
The same word completion system to work with several different application programs, such as a word processing program, an email program, a spreadsheet program, and so forth.

[00:31:01] Speaker 02:
And we have Dr. Levy's testimony that in those contexts, for sure, it continues to be.

[00:31:06] Speaker 02:
the word completion program, a subordinate dependent subsidiary program.

[00:31:12] Speaker 02:
So nothing's changed.

[00:31:13] Speaker 02:
The board just got it wrong.

[00:31:15] Speaker 03:
Do you agree with your friend on the other side that as it relates to the term associated that to the extent that you complain about the board's construction, you waived any ability to ask us to disagree with that construction because you didn't raise any

[00:31:34] Speaker 03:
basis upon which to conclude there was any prejudice.

[00:31:37] Speaker 02:
We addressed this in the reply brief and once claim constructions had an issue, of course there's prejudice because you can find that... No, not necessarily.

[00:31:47] Speaker 03:
A lot of times alternative claim constructions still lead to a conclusion of infringement or conclusion of anticipation or conclusion of obviousness.

[00:31:55] Speaker 02:
I suppose that's the case, but we

[00:31:57] Speaker 02:
We made that distinction because we think it made a difference.

[00:32:01] Speaker 03:
I know, but you didn't argue in your brief why it made a difference.

[00:32:05] Speaker 03:
You didn't give us anything to say that under my alternative construction, there would be no anticipation.

[00:32:14] Speaker 02:
I apologize if the court could infer that.

[00:32:17] Speaker 02:
The reason we emphasize the construction associated is because we felt there has to be a pre-existing association.

[00:32:27] Speaker 02:
And again, if one looks at the context in the specification, of course, in the contact management system, a name is associated with an address.

[00:32:38] Speaker 02:
There is a preexisting association.

[00:32:40] Speaker 02:
In Hakimovic and in Domini, the association, if you can call it at all, comes only because on the fly, they come up with a suggested word to complete or a word that maybe is misspelled.

[00:32:55] Speaker 02:
They don't exist in the database from the beginning.

[00:32:59] Speaker 02:
And the whole purpose of the headloy technology, the whole purpose of the technology here, again, is to, in effect, automate this interaction between two independently executable programs.

[00:33:12] Speaker 02:
And of course, if the association didn't exist, we're not talking about the programs

[00:33:20] Speaker 02:
that Headloy used for which he was trying to automate the interaction.

[00:33:27] Speaker 02:
So to me, it seemed obvious, and I apologize for having failed to make that so clear.

[00:33:33] Speaker 05:
Okay, Mr. Sunstein, we're well beyond your rebuttal time, so we're going to have to call this one.

[00:33:38] Speaker 05:
I thank both counsel for their argument.

[00:33:40] Speaker 05:
The case is taken under submission.