[00:00:10] Speaker 02: I think the next case is number 16, 1152, Clear Play Incorporated against Custom Play Incorporated, Mr. Tucker. [00:00:22] Speaker 04: Thank you, Your Honor. [00:00:24] Speaker 04: May it please the Court. [00:00:25] Speaker 04: Although we addressed a lot of issues in our briefing, I want to simplify it down to a single issue that I believe is a dispositive issue in this case, and that is the claim construction. [00:00:38] Speaker 04: And more particularly, it's what is a navigation object. [00:00:43] Speaker 04: And we had repeatedly argued that the claims themselves are very clear on what a navigation object is. [00:00:51] Speaker 04: If we look at the claims, and the same similar language is used in both patents. [00:00:57] Speaker 04: But in each case, there's three elements. [00:01:00] Speaker 04: A start position or a start indicator may mean the same thing. [00:01:05] Speaker 04: a stop position or an end indicator. [00:01:08] Speaker 04: Again, they mean the same thing. [00:01:09] Speaker 04: And a filtering action. [00:01:11] Speaker 04: Those three elements must be defined. [00:01:13] Speaker 04: If you don't have all three elements, you don't have a navigation object. [00:01:17] Speaker 00: And what's critical about this... So is it your position then for the navigation object limitation, there are sublimitations, each of which have to be met in order to get the navigation object? [00:01:31] Speaker 04: That is true. [00:01:32] Speaker 04: If you don't have all three of those elements, you do not have a navigation object. [00:01:37] Speaker 04: That is correct. [00:01:39] Speaker 04: And the claims themselves are very clear on that point. [00:01:42] Speaker 04: And what I want to point out and emphasize is that start and stop or end, those are critical words. [00:01:52] Speaker 04: They're in there for a reason, and they mean something very specific. [00:01:56] Speaker 04: What they don't simply mean is the start and end of a portion of content, although they do accomplish that. [00:02:03] Speaker 04: But their primary goal is that they define when to start and stop a filtering action. [00:02:08] Speaker 04: That's why you have the filtering action defined in conjunction with the start and the stop position. [00:02:15] Speaker 04: And just to paint a picture for you of how this works, as you're decoding the video content, you're looking at where you are in the video and comparing where you are to the start indicator or start position in a navigation object. [00:02:30] Speaker 04: And there may be multiple navigation objects. [00:02:32] Speaker 04: But you find that you've reached a point where a navigation object applies, and that's by identifying that your current position matches that start position. [00:02:42] Speaker 04: At that point, you're triggering that filtering action. [00:02:46] Speaker 00: All right, but Malkin has a filtering action, correct? [00:02:49] Speaker 00: Yes. [00:02:49] Speaker 00: All right, and Malkin says one way you can figure out where to apply this filtering action is to look at a video map, right? [00:02:59] Speaker 04: Well, the video map comes from Abacassus, not Malkin. [00:03:02] Speaker 00: That's what I'm saying, but Malkin actually refers to the video map, right, as a possible... I would disagree with you on that point. [00:03:11] Speaker 04: I believe Malkin does reference abacassis as a prior art way of filtering, but Malkin's way of filtering is entirely different from abacassis. [00:03:23] Speaker 04: So let me re-emphasize that start and... Why does it matter that the way of filtering is different? [00:03:32] Speaker 04: That's what we're claiming. [00:03:34] Speaker 04: The what is not what we're claiming. [00:03:36] Speaker 04: It's the how. [00:03:37] Speaker 04: Filtering is done in a lot of different ways. [00:03:40] Speaker 04: And in these cases, we're looking at three different ways. [00:03:44] Speaker 04: The navigation object way. [00:03:45] Speaker 01: What specific way of filtering are you claiming other than that you begin your filtering at the start place and you end at the end place? [00:03:57] Speaker 04: What ClearPlay does is they provide these navigation objects. [00:04:01] Speaker 04: And then they have the decoder that knows how to use them. [00:04:05] Speaker 04: That's how they do it. [00:04:07] Speaker 04: So during the playback process, it's accessing the navigation object to determine when to start a filtering action, which filtering action to apply, and when to stop it. [00:04:17] Speaker 04: That's those three elements that I mentioned. [00:04:20] Speaker 04: Now to move on to how Abacassis does it, we've referred to this as selective retrieval. [00:04:26] Speaker 04: It creates a video map that's every single segment of the video, including segments that you would always play. [00:04:32] Speaker 04: And the video map is defining multiple pathways through those segments, one that may include explicit content, one that has implicit content, one that has nothing objectionable. [00:04:43] Speaker 01: So there are lots of start and stop positions in advocacy, right? [00:04:48] Speaker 04: There are not any of the boundaries. [00:04:51] Speaker 04: And that's the key thing I want to emphasize here. [00:04:53] Speaker 04: There is a critical distinction. [00:04:55] Speaker 04: It's subtle, but it's critical. [00:04:57] Speaker 04: The start and stop position do not define the beginning and ends of a portion of content. [00:05:04] Speaker 04: They define, well, let me rephrase that. [00:05:06] Speaker 04: They do, in essence, define that. [00:05:09] Speaker 04: But more importantly, they define when to start a filtering action and when to stop a filtering action. [00:05:16] Speaker 01: Not avocations. [00:05:17] Speaker 04: Avocations doesn't do that. [00:05:19] Speaker 01: That's what I mean. [00:05:19] Speaker 01: That's what I said. [00:05:21] Speaker 01: Advocacy defines markers. [00:05:25] Speaker 01: I mean, it's a map. [00:05:26] Speaker 04: Yes. [00:05:27] Speaker 01: It's sort of like, you know, a map of the states and the United States and boundaries, none of the boundaries. [00:05:33] Speaker 01: That's correct. [00:05:34] Speaker 01: And those can be perceived if what you're trying to do is to excise, limit certain content, which is what advocacy is there for, right? [00:05:43] Speaker 01: It doesn't actually claim the filtering action itself, but it recognizes that an action can be taken [00:05:51] Speaker 01: on the map to delete or to edit things, right? [00:05:56] Speaker 04: That is correct. [00:05:57] Speaker 01: So the boundaries are there. [00:06:00] Speaker 04: The boundaries of, yes, segments are defined. [00:06:02] Speaker 01: If abacus each went on, the reference itself refers to an action being taken later to use the map to perform the function that your patent does, right? [00:06:18] Speaker 04: Well, the way that I would look at this [00:06:20] Speaker 04: is, again, it's selective retrieval. [00:06:22] Speaker 01: All I'm saying is that if advocacy itself actually said, claimed a filtering action to select out certain content from the boundaries, then there would be anticipation, right? [00:06:38] Speaker 04: I would submit that it's hard to even look at it that way because they work so entirely differently. [00:06:43] Speaker 01: Why? [00:06:44] Speaker 01: Why would the fact that it works differently matter? [00:06:49] Speaker 04: Okay, so let's assume that we can equate the beginning and ending frames of an abacus segment with the start and stop position of a navigation object. [00:06:58] Speaker 04: If we assume that, then based on the definitions in the claims, we would start the filtering action at the beginning frame and end it at the end frame. [00:07:08] Speaker 04: In essence, if the filtering action is a skip, skipping over that entire segment. [00:07:13] Speaker 04: That's not how abacus works, because by definition, it only retrieves segments that it will play. [00:07:19] Speaker 04: So again, if you're looking at video being played back, in Abacassis, it would look at this map and say, I need to grab segment number one. [00:07:26] Speaker 01: From an anticipation point, I agree with you. [00:07:28] Speaker 01: From an audience point of view, if it teaches what you want to play, it also teaches what you don't want to play. [00:07:36] Speaker 00: Isn't the real part of your argument here, it's that the reason it has to be starting [00:07:42] Speaker 00: the filtering mechanism and stopping the filtering mechanism is because it also defines the filtering mechanism, which in your patent could be any number of mechanisms. [00:07:52] Speaker 04: That is correct. [00:07:53] Speaker 04: Yes. [00:07:54] Speaker 04: It could be a skip. [00:07:55] Speaker 04: It could be a mute. [00:07:56] Speaker 00: So in other words, if we only were ever talking about a skip mechanism, then it might be a more difficult argument for you. [00:08:02] Speaker 04: I would disagree with that. [00:08:05] Speaker 04: It does not matter. [00:08:06] Speaker 04: It could always be a skip. [00:08:08] Speaker 04: It's the fact that you're defining when to start that skip and when to stop it. [00:08:13] Speaker 04: Again, this is a separate data structure. [00:08:16] Speaker 04: It looks entirely different than this video map. [00:08:21] Speaker 04: They're entirely different. [00:08:23] Speaker 04: A video map is a, it'd be a huge number in segments in a real example. [00:08:30] Speaker 04: And it would have links between those segments. [00:08:32] Speaker 04: All it's doing is saying, play this pathway through the video map. [00:08:37] Speaker 04: Get segments one, two, five, six, seven, on and on and on. [00:08:42] Speaker 04: Right? [00:08:43] Speaker 04: other segments that may possibly have objectionable content in it. [00:08:48] Speaker 04: It's just telling which ones to go retrieve from the DVD. [00:08:53] Speaker 04: In contrast, with a navigation object, you're going to stream the content or read the content to the decoder and it's going to come in in series and you're going to get to a point where you say, I need to actively do something. [00:09:08] Speaker 04: What is that something? [00:09:09] Speaker 04: When do I do it and for how long? [00:09:11] Speaker 04: That's all determined by this separate navigation object. [00:09:15] Speaker 04: So the decoder is looking at the navigation object to determine all of those things during the decoding process. [00:09:22] Speaker 04: In contrast, in abacassis, everything's done up front to decide which ones do I retrieve, and I will only play those once. [00:09:30] Speaker 04: So the key argument, again, is that the beginning and ending frames of a segment have nothing to do with a start and stop indicator of a navigation object. [00:09:41] Speaker 04: Why? [00:09:42] Speaker 04: And let me go back to the claim construction. [00:09:45] Speaker 04: They have nothing to do with it. [00:09:48] Speaker 04: Where did the board go wrong on that? [00:09:51] Speaker 01: But if you don't have a beginning and an end, then you don't have the structure that you're talking about. [00:09:57] Speaker 04: A beginning and an end frame have nothing to do with a filtering action. [00:10:02] Speaker 04: Nor would they ever have anything to do with a filtering action, because you would never filter a segment that's been retrieved for play. [00:10:10] Speaker 04: In other words, if you've reached the point of a beginning frame... Will they define what it is you're going to filter? [00:10:16] Speaker 04: Based on the selective retrieval process, if you reach the point where you're at a beginning frame of a segment, you're going to play that entire segment. [00:10:25] Speaker 04: You would never want to filter, because the fact that you retrieved it, by definition, means there's nothing in there that the viewer has said that they don't want to see. [00:10:34] Speaker 04: In contrast, if it had been a... [00:10:38] Speaker 01: We're not talking about trying to combine methods here. [00:10:44] Speaker 01: Maybe I'm simple-minded, but the way I saw what was happening at the board level, they said, you've got your navigation structures got three things. [00:10:52] Speaker 01: It's got a starting point, an ending point, and a filtering action. [00:10:57] Speaker 01: And so they look at advocacy and they say, we see in the map defining starting points and ending [00:11:05] Speaker 01: So if they're right about that, that's what they see. [00:11:08] Speaker 01: And then they say, but there's no filtering action. [00:11:10] Speaker 01: It contemplates a filtering action, but there's no claim. [00:11:13] Speaker 01: So it's not a 102. [00:11:15] Speaker 01: So then they go and they look at the next reference. [00:11:19] Speaker 01: And they say, well, Malkin teaches a filtering action, which I think everybody agrees it does. [00:11:26] Speaker 01: And so the board said, well, what of ordinary skill in the art? [00:11:29] Speaker 01: Who is trying to accomplish what you're trying to accomplish here? [00:11:33] Speaker 01: in order to get this one piece of structure, which is all we're talking about, would they have combined the filtering action from Malcolm with the boundaries and avocations? [00:11:47] Speaker 01: And why wouldn't they? [00:11:49] Speaker 01: Why would one of our orders still not make that combination? [00:11:55] Speaker 01: There's no question that the art is not analogous. [00:11:58] Speaker 01: The art's analogous. [00:12:00] Speaker 04: That leads into our piecemeal analysis argument. [00:12:03] Speaker 01: But I mean, to me, that's not too simple-minded. [00:12:08] Speaker 01: And that's the way, as I understood it, that Judge Grossman wrote his opinion, saying this is what we have in front of us. [00:12:16] Speaker 04: Well, does a start position define a beginning of a portion of content, or does it define when to start a filtering action? [00:12:22] Speaker 04: That is the critical issue. [00:12:25] Speaker 04: What did the claim say? [00:12:27] Speaker 04: What does start mean? [00:12:28] Speaker 01: Does it mean... Well, in your patent, clearly, it does. [00:12:31] Speaker 01: Yes. [00:12:31] Speaker 01: Yeah, because that's what you do. [00:12:34] Speaker 01: And could you, would one of our ordinary skill in the art be able to use the learning from advocacy coupled with the learning from Malcolm to do what you do? [00:12:46] Speaker 01: And the board said, yes, one of our ordinary skill in the art would be inclined to do that. [00:12:49] Speaker 01: In fact, the references point to each other and tell you to get together. [00:12:57] Speaker 01: You've got to help me because I'm not certain. [00:13:00] Speaker 01: I think I may not appreciate, and I don't mean this in a majority, but I may not appreciate the delicacy of the point I think you're trying to make. [00:13:13] Speaker 04: Yeah. [00:13:15] Speaker 04: So we don't even have to get to the issue of combining references because the board never proved that there was a start position in the prior art. [00:13:27] Speaker 04: That's our argument. [00:13:28] Speaker 04: The beginning frame of a segment is not a start position, because it does not define when to start a filtering action. [00:13:36] Speaker 04: Now, I agree with you that if you start looking at the elements of a navigation object in isolation, it's very easy to find things that look the same. [00:13:45] Speaker 04: That's where the board went wrong. [00:13:47] Speaker 01: You cannot dissect a navigation object and retain its meaning. [00:13:51] Speaker 01: It's a start position to perform an act, right? [00:13:56] Speaker 01: then you would, one would sensibly start it at, you would start the act at the starting position. [00:14:04] Speaker 01: If the start division is defined as that place where you begin something, and then you add the thing, the act that you're going to do, you would start it then, not start it someplace else. [00:14:19] Speaker 04: And you're describing clear place technology, but not abacuses. [00:14:22] Speaker 04: That's not how abacus works. [00:14:25] Speaker 00: What is it about VidAngel that's different from Advocatus? [00:14:29] Speaker 00: You say it's different in your brief, but you don't really explain how. [00:14:34] Speaker 04: Well, I would submit that that is actually irrelevant to this case, but to answer your question, VidAngel, they knocked off clear play. [00:14:45] Speaker 04: We filed a suit. [00:14:47] Speaker 04: They changed their code slightly to obscure what they were doing. [00:14:51] Speaker 04: They're still doing the same thing. [00:14:52] Speaker 04: What they have done [00:14:54] Speaker 04: is instead of using multiple navigation objects, they've combined it into two separate structures, a skip navigation object structure and a mute navigation object structure. [00:15:05] Speaker 04: So what they've done is made the filtering action inherent in the structure. [00:15:10] Speaker 04: If you put all the skip start and stop indicators in a single structure, you don't have to explicitly define skip, but by virtue of it being the skip data structure, [00:15:21] Speaker 04: it knows that it's doing a skip. [00:15:22] Speaker 04: And then by virtue of the mute, so it still is doing exactly the same thing. [00:15:26] Speaker 04: They just got tricky with their code to try and get around our infringement claim. [00:15:31] Speaker 02: Okay, got it. [00:15:32] Speaker 02: Let's hear from the other side. [00:15:33] Speaker 02: We'll save you some rebuttal time. [00:15:36] Speaker 02: Mr. Tucker. [00:15:44] Speaker 02: Mr. Carey. [00:15:45] Speaker 03: Good morning, Your Honors. [00:15:46] Speaker 03: May it please the Court? [00:15:50] Speaker 03: is suggesting that its appeal rests on disputing the claim construction adopted by the board. [00:16:01] Speaker 03: But before the board, Clear Play did not offer any claim constructions whatsoever and Clear Play in its response and throughout the entire proceeding, affirmatively stated that it does not disagree with the board's claim constructions. [00:16:17] Speaker 03: So again, [00:16:18] Speaker 03: They offered no claim construction before the board. [00:16:21] Speaker 03: They said in writing in their response. [00:16:25] Speaker 00: What they're really saying is that we didn't disagree with the basic words that the board used. [00:16:32] Speaker 00: We had no idea that the board would interpret its own language in the way that it did. [00:16:41] Speaker 03: I disagree with respect to what they're trying to argue here on appeal. [00:16:45] Speaker 03: They are arguing for a different claim construction than what the board adopted and used. [00:16:50] Speaker 03: And the problem is that I can't imagine a stronger case for waiver of that. [00:16:56] Speaker 01: Because when you don't... Didn't they say in the hearing that we're with you on your claim construction so long as you understand that we've got this win issue? [00:17:10] Speaker 03: claim construction issue that they ever advanced before the board has nothing to do with the appeal. [00:17:15] Speaker 03: It had to do with they asked for a clarification as to whether the start and stop positions could be the same value or whether they had to identify two different positions. [00:17:24] Speaker 03: And the board actually ended up clarifying that it agreed with them on that. [00:17:28] Speaker 03: And that has nothing to do with any issue on appeal. [00:17:32] Speaker 03: They affirmatively stated that they didn't disagree with the board's constructions, yet here they are trying to take an appeal of the board's constructions. [00:17:39] Speaker 03: I respectfully submit that this crosses the line into frivolousness. [00:17:43] Speaker 00: There were multiple places in which they said, we don't disagree with the construction as long as you understand that this is our interpretation of your construction. [00:17:50] Speaker 03: Right. [00:17:51] Speaker 03: And that interpretation had to do with a start and stop being two different points, not the same point. [00:17:56] Speaker 00: It didn't have anything to do with what they're arguing about. [00:17:58] Speaker 00: But it's not just that it's two different points. [00:17:59] Speaker 00: That's just that it's two, but that start has to do something. [00:18:02] Speaker 03: Right? [00:18:03] Speaker 03: No. [00:18:03] Speaker 03: They just said that the start and stop can't be the same point. [00:18:06] Speaker 03: It had to be two different points. [00:18:08] Speaker 03: thing that they argued below about claim construction. [00:18:11] Speaker 00: Let's assume that we don't think there's a waiver. [00:18:14] Speaker 00: So let's talk about a navigation object. [00:18:16] Speaker 00: Now, their argument is that with a navigation object, you have to have sublimitations within that navigation object, and they're not all there. [00:18:25] Speaker 00: So they say that START has to have an affirmative action. [00:18:34] Speaker 00: You have to do something [00:18:36] Speaker 00: to actually start the filtering mechanism and define the filtering mechanism. [00:18:40] Speaker 03: Yeah, here's where they're, this is the new argument. [00:18:42] Speaker 00: It's different than abacuses. [00:18:44] Speaker 03: Because the start and stop that they talk about are nothing but beginning and end points of a piece of content that you're going to filter. [00:18:52] Speaker 03: And that's exactly what abacuses discloses as well. [00:18:57] Speaker 03: And the board found that. [00:18:58] Speaker 01: Right, but they're saying, they're not emphasizing the where. [00:19:04] Speaker 01: you begin your filtering action, it's the when, as I understand your adversary. [00:19:11] Speaker 03: Here's, I think, if I may, Your Honor. [00:19:13] Speaker 01: The adversary keeps pointing over and over and over again. [00:19:16] Speaker 01: They say in their brief that the start place defines both where you begin to filter and when you begin to filter. [00:19:28] Speaker 01: Well, in the context of- I may say the end place defines where you stop filtering, but it defines when you [00:19:33] Speaker 01: point in time, when. [00:19:34] Speaker 03: Yes, but in the context of playing a video, when and where are the same thing. [00:19:38] Speaker 03: Because when you play a video, it's measured by time code. [00:19:41] Speaker 03: So at point four minutes, three seconds. [00:19:43] Speaker 01: Throughout their reading, they emphasize this when point over and over and over again. [00:19:49] Speaker 03: The start and stop positions are expressed as time codes in the navigation object. [00:19:55] Speaker 03: So when you play video, to get to a where, you designate a when. [00:20:02] Speaker 03: All right. [00:20:02] Speaker 03: You designate three minutes, four seconds into the video. [00:20:05] Speaker 03: That is this point in the video. [00:20:06] Speaker 00: But then there's also the what. [00:20:08] Speaker 00: Like what happens? [00:20:09] Speaker 03: What does the start do? [00:20:11] Speaker 03: The what is supplied by the filtering action, not by the start and stop indicators. [00:20:18] Speaker 03: The start, this is the main issue here. [00:20:21] Speaker 03: What they're trying to do before this court, which is something they didn't argue in the board, they're trying to add a limitation [00:20:28] Speaker 03: in to read in a limitation to the start and stop position. [00:20:32] Speaker 01: What limitation are they trying to read in? [00:20:34] Speaker 03: That isn't in the claims and that they didn't argue. [00:20:36] Speaker 03: What is it? [00:20:36] Speaker 03: What is it? [00:20:37] Speaker 03: They're trying to argue. [00:20:38] Speaker 03: Okay. [00:20:38] Speaker 01: What is the specific limitation they're trying to read in? [00:20:41] Speaker 03: I'm going to illustrate that. [00:20:42] Speaker 03: If we look at it. [00:20:43] Speaker 01: Just say it in English language. [00:20:44] Speaker 01: You can speak English language. [00:20:45] Speaker 01: Of course, Your Honor. [00:20:46] Speaker 01: What is the limitation? [00:20:48] Speaker 01: What are the words? [00:20:50] Speaker 03: They are trying to say that the start and stop position codes themselves [00:20:56] Speaker 03: have to say what the filtering action is. [00:20:59] Speaker 03: And the claims don't require that. [00:21:01] Speaker 01: Where do they say that? [00:21:03] Speaker 03: Well, that's what he just argued. [00:21:05] Speaker 03: My colleague just argued that to you. [00:21:07] Speaker 03: He's saying that the start position is not just a point in the video, it's a point that says, do this filtering action at this point. [00:21:15] Speaker 03: And that's not what the claims say, and that's not what they teach. [00:21:17] Speaker 00: Well, what they're saying is that the navigation object has all of these [00:21:22] Speaker 00: sublimitations that unless you satisfy all of them, you don't have a navigation object. [00:21:28] Speaker 03: Yes. [00:21:28] Speaker 03: Let me illustrate my point by looking at the claim one of the 318 patent. [00:21:32] Speaker 03: All right? [00:21:34] Speaker 03: I think this will help illustrate the issue. [00:21:38] Speaker 03: So this is at appendix page 0114. [00:21:43] Speaker 03: So you've got in claim one at line, this is the navigation object. [00:21:49] Speaker 03: It states at line 64. [00:21:51] Speaker 03: A start indicator associated with the first position in the multimedia content presentation. [00:21:57] Speaker 03: An end indicator associated with the second position in the multimedia content presentation. [00:22:03] Speaker 03: The next limitation is a content descriptor, which is not material here. [00:22:07] Speaker 03: And then the third one is the filtering action associated with the start and the end indicators. [00:22:12] Speaker 03: And here it requires the filtering action to be a skip filter action. [00:22:21] Speaker 03: The board construed the navigation object to be a start position, defining a start position in the video, an end position, defining an end position in the video, and a filtering action which says what the filtering action is to be applied to the portion of video defined by the start and the stop. [00:22:41] Speaker 03: So it's the filtering action element that says what is to be done [00:22:50] Speaker 03: to the portion of video defined by the start and the stop, not the start and the stop values themselves. [00:22:57] Speaker 03: If the start and stop values themselves said what to do, for example, skip from here to here, then you wouldn't have a separate third element for filtering action. [00:23:06] Speaker 03: It would already be predefined in the start and stop indicator. [00:23:09] Speaker 03: What they're trying to do is they're trying to add another limitation that's not in the claims to the start and stop positions and say start and stop positions are not just [00:23:19] Speaker 03: beginning and end frames of a portion of a video. [00:23:22] Speaker 03: They're trying to say that the start and stop positions have to additionally tell you what to do with that portion of video. [00:23:29] Speaker 03: But that's wrong, because the start and stops don't perform that function. [00:23:33] Speaker 03: The third element, the filtering action element, says what to do with the portion of the video, not the start and stop indicators themselves. [00:23:41] Speaker 03: And the reason that they're trying to advance this new claimed instruction is because it's very clear that abacus discloses [00:23:48] Speaker 03: a start and stop of a portion of video that gets filtered. [00:23:51] Speaker 03: And so they're trying to come up with a distinction with abacuses. [00:23:56] Speaker 03: But the distinction that they're arguing wasn't argued below and is not supported by the claims. [00:24:01] Speaker 03: Let's look at the specification. [00:24:04] Speaker 03: Let's see how they describe what their start and stop indicators are. [00:24:08] Speaker 03: For example, at column 4 of the 318, we see here, column 4, it's page 106. [00:24:18] Speaker 03: Column four starts at the paragraph beginning at line 62. [00:24:25] Speaker 03: It's talking about the navigation, reading the objects. [00:24:29] Speaker 03: And this goes on to say, in line 65, for DVD multimedia, the position code may be a time code that identifies portions of the multimedia content by hours, minutes, seconds, and frame number. [00:24:42] Speaker 03: Then it goes on to say that code is compared to the positions in the navigation object. [00:24:48] Speaker 03: So the start position is a time code. [00:24:53] Speaker 03: It's hours, minutes, second frames. [00:24:54] Speaker 03: It tells you when to start this portion of the video. [00:24:58] Speaker 03: Now, if you look at a figure, for example, figure 5B, which is shown on appendix page 102. [00:25:09] Speaker 03: It's just a few pages before the spec reference I just read. [00:25:15] Speaker 03: So there you see, here we have a linear [00:25:18] Speaker 03: layout of a video, we've got a description of 590 as the navigation object. [00:25:24] Speaker 03: The start is an hour, minute, second frame identifier. [00:25:30] Speaker 03: That's the start. [00:25:33] Speaker 03: The stop is another hour, minute, second frame. [00:25:39] Speaker 03: And the skip filtering action is this totally separate thing called mute, which is labeled number 595 on the figure. [00:25:48] Speaker 03: So the start and stop are indicators of a start portion of a video and a stop. [00:25:55] Speaker 03: The start and stop numbers themselves don't tell you what is to be done on that portion of video. [00:26:00] Speaker 03: Only the designation of the third element of the navigation object, only the designation of the filtering action says what to do with that portion of video. [00:26:09] Speaker 03: Again, if the start and stop [00:26:11] Speaker 03: values already told you what to do with that portion of the video, there would be no purpose for having a filtering action be a third element. [00:26:21] Speaker 03: So that's where I believe their claim construction is fundamentally flawed, if not waived. [00:26:28] Speaker 03: And so I believe they consistently refer to start and stops as being expressed as time codes. [00:26:40] Speaker 03: not as time codes plus a filtering action. [00:26:44] Speaker 03: That's why they have this totally different element of the claim calling for a filtering action that tells you what to do with that portion of video described by the start and stop. [00:26:53] Speaker 01: And I also want to rebut some of the... I hear you talking about what you think they are saying, at least here in argument, but I've got to confess I guess I need to go back and reread their brief because I didn't see this in their brief. [00:27:06] Speaker 01: I see over and over again the emphasis like at page 9 in their reply brief that basically the navigation object has a start position which defines when to start the filtering action, not that it defines the filtering action. [00:27:27] Speaker 01: Can you point to someplace in their brief where you think they're making this argument that they're adding to the start and stop limitations [00:27:35] Speaker 01: that start and stop have to define the specific filling action to be taken? [00:27:40] Speaker 03: That's how I'm interpreting what was just argued by opposing counsel in his presentation. [00:27:45] Speaker 01: Did you see that in the brief? [00:27:58] Speaker 03: Yes. [00:27:59] Speaker 03: I see it at page 34 of their opening brief. [00:28:06] Speaker 03: By the way, on page 34, they make the argument that... There are three paragraphs. [00:28:15] Speaker 03: Yes, the second paragraph. [00:28:16] Speaker 03: The second paragraph. [00:28:17] Speaker 03: I'm sorry. [00:28:18] Speaker 03: They argue here, again, this is an argument that was not made below, but they argue here... It would be an association with the filling. [00:28:25] Speaker 01: That's what the claim says. [00:28:26] Speaker 01: Well, hold on a second. [00:28:28] Speaker 03: No, that's not what the claim says. [00:28:29] Speaker 03: Let me explain. [00:28:30] Speaker 03: They are saying here, and this is very nuanced of them, they are saying that the start and stop positions be defined [00:28:37] Speaker 03: in association with the filtering action. [00:28:39] Speaker 03: It's not the way the claim reads. [00:28:41] Speaker 03: In the first line of the second paragraph, they're saying this claim construction. [00:28:46] Speaker 01: You define in association with the filtering action. [00:28:50] Speaker 03: Right. [00:28:51] Speaker 03: So if you look at claims. [00:28:52] Speaker 01: And as I say, they consistently say it's not the where. [00:28:57] Speaker 01: They admit that the start and stops show where, but then they say it's when. [00:29:02] Speaker 03: Well, Your Honor, if all they're saying is the when, then this is easy, because abacus clearly shows time codes, just like Clearplay tries to use time codes. [00:29:09] Speaker 01: Well, that was the point I was trying to make here. [00:29:11] Speaker 01: That's no distinction whatsoever to say we're talking about when, because abacus... I mean, the way this works is that we read the briefs very carefully and try to deduce from the briefs what it is an appellant thinks is wrong with a decision below and what your response to that is. [00:29:30] Speaker 01: And so I don't... [00:29:32] Speaker 01: You're telling me that this argument that you've spent all your time with the oral argument, you're rebutting an argument you think they're making here on appeal for the first time. [00:29:42] Speaker 03: I believe I'm addressing what the argument is. [00:29:45] Speaker 03: And let me add to it. [00:29:48] Speaker 03: I think what they're trying to argue is that, so you've got a navigation object. [00:29:52] Speaker 03: It's got to have three things in it. [00:29:55] Speaker 03: It's got to have a start position, a stop position, and an action to be performed [00:29:59] Speaker 03: on the portion of video defined by the start and stop position. [00:30:03] Speaker 03: What I hear Clearplace saying in this appeal is that the start and stop positions themselves, those information elements of the navigation object have to, in addition to telling you when and where the video is that you want to manipulate, what to do with it. [00:30:21] Speaker 03: And what I'm saying is that is completely wrong because it's not the start and stop elements that tell you what to do with the portion of video. [00:30:29] Speaker 03: It's the third piece, the filtering action, that tells you what to do with the portion of video. [00:30:35] Speaker 03: If the start and stops themselves told you what to do with the portion of video, there wouldn't be a purpose for having the filtering action. [00:30:42] Speaker 03: And it's clear that the start and stop positions don't tell you what to do with the portion of video. [00:30:48] Speaker 03: There's all sorts of things that can be done with... There are many types of filtering actions. [00:30:53] Speaker 03: You can skip, you can mute, you can do a reframe, [00:30:57] Speaker 03: You can blur part of the image out. [00:30:59] Speaker 03: All sorts of different types of filtering actions can be done on a particular portion of video. [00:31:05] Speaker 03: And what tells you which action to apply to a particular portion of video isn't the values that tell you what the portion of video it consists of. [00:31:17] Speaker 03: It's the filtering action designator that says, apply a skip to this, or apply a mute to this, or apply a reframe to this, or some other filtering action to this. [00:31:27] Speaker 03: The start and stop values don't say what to do to the content in between the start and stop values. [00:31:35] Speaker 03: And that's why their argument is invalid. [00:31:38] Speaker 02: Any more questions for Mr. Kerry? [00:31:41] Speaker 02: No, no, I'm fine. [00:31:42] Speaker 02: Any more questions? [00:31:43] Speaker 02: OK. [00:31:44] Speaker 02: Thank you. [00:31:45] Speaker 02: We have your argument, Mr. Kerry. [00:31:47] Speaker 02: And Mr. Tucker, about four minutes for rebuttal. [00:31:54] Speaker 04: With all due respect, Mr. Kerry has mischaracterized our argument. [00:31:59] Speaker 04: We're not saying that the start and stop position define anything more than what the claims say they do. [00:32:05] Speaker 04: They define when to start and when to stop the filtering action. [00:32:09] Speaker 00: Well, wait, I think that his description of your argument is exactly what I read in the reply brief. [00:32:15] Speaker 00: I'm not sure I read it in the blue brief, but I thought that's exactly what you claimed in the reply brief. [00:32:21] Speaker 00: That the start action had to also [00:32:25] Speaker 00: include defining what the filtering mechanism would be. [00:32:29] Speaker 04: That's not what we're arguing. [00:32:31] Speaker 04: No. [00:32:32] Speaker 04: What it does, you can't look at it as just data. [00:32:37] Speaker 04: If you look at it as just data, it's abstracted to the point that it becomes meaningless. [00:32:41] Speaker 04: Because yes, it could be simply a time stamp. [00:32:43] Speaker 04: It's what the decoder understands that it is. [00:32:45] Speaker 01: Well, was I right to point out, over and over again, in both your blue brief and in your reply brief, you keep saying, [00:32:53] Speaker 01: What's important about the start and stop positions is they define when the filtering action begins. [00:33:00] Speaker 04: That's exactly right. [00:33:01] Speaker 01: That's what I understood you to be saying. [00:33:05] Speaker 01: And what I said to you when you were standing up here before is I said, why? [00:33:08] Speaker 01: Why does it matter the when? [00:33:11] Speaker 01: Because as your adversary is saying is if you want to have an action that you're going to take and you have a starting position and an ending position to the action, [00:33:21] Speaker 01: Why would you start it at the end position? [00:33:24] Speaker 01: You would start it at the start position, and you would end it at the end position if what you're trying to do is to filter that piece of real estate that is embraced within the start and the stop position. [00:33:36] Speaker 04: That's exactly right. [00:33:38] Speaker 01: Right, but tell me why the when matters to save your case from an obviousness rejection. [00:33:45] Speaker 04: Because abacus does not function at all in that way. [00:33:49] Speaker 00: It might not function that way, but the question is, does it teach that? [00:33:54] Speaker 00: In other words, the video map of Avocados does have time stamps, right? [00:33:59] Speaker 04: And how are they used? [00:34:01] Speaker 04: What do they represent? [00:34:02] Speaker 04: That's the real issue. [00:34:03] Speaker 00: But that's not completely the issue, because the issue is whether you would put that video map together with the filtering mechanism that the board found to exist in a different reference. [00:34:16] Speaker 04: And as we argued in our briefing, if you were to do that, that would imply that you're applying a Malkin fuzzball from the beginning frame of a segment in abacus until the end frame of that segment. [00:34:29] Speaker 04: In essence, applying the fuzzball through the entire segment. [00:34:32] Speaker 04: That makes no sense because a segment that you would retrieve in abacus is one that you would play. [00:34:41] Speaker 04: By definition, it only retrieves segments to play. [00:34:45] Speaker 04: So again, we have to look at this in the details. [00:34:49] Speaker 04: We can't abstract this. [00:34:50] Speaker 04: That's what the board did. [00:34:51] Speaker 04: They looked at it at too high of a level. [00:34:53] Speaker 04: Their claim construction is so broad that it reads out the start and stop position, what they mean. [00:34:59] Speaker 04: Those key words, start, stop. [00:35:01] Speaker 04: Not start and end of a beginning of a portion. [00:35:05] Speaker 04: Excuse me, the beginning and ending of a portion. [00:35:07] Speaker 04: But when you start and when you stop, that associated field of action. [00:35:12] Speaker 00: But why would Malkin [00:35:14] Speaker 00: be applied to the portions of the video map and advocacy that you wanted to keep, as opposed to being applied to the portions of advocacy that you would have otherwise not retrieved? [00:35:27] Speaker 04: That's my question. [00:35:29] Speaker 04: Why would you combine these references? [00:35:31] Speaker 04: They don't work together. [00:35:32] Speaker 04: They would never work together. [00:35:35] Speaker 04: When you apply a video map, you only retrieve and play content that the viewers all right with seeing. [00:35:43] Speaker 04: Okay, if the viewer says no nudity, you would never retrieve segments that have nudity. [00:35:48] Speaker 04: You would never even get to the point where you need to apply a fuzzball. [00:35:53] Speaker 04: There would be no reason ever to do that because a beginning and ending frame of a segment have nothing to do with the filtering action. [00:36:00] Speaker 01: But the start and stop positions that are used to define what it is you want to see can easily be used for what you don't want to see. [00:36:07] Speaker 01: When what you're trying to do is fill in what you don't want to see, you have a start position and a stop position. [00:36:12] Speaker 04: Yeah, I would argue that abacuses doesn't filter in the way that we mean, meaning it only selectively retrieves what you want to see. [00:36:21] Speaker 01: Abacuses doesn't filter, period, as a matter of its limitations. [00:36:25] Speaker 01: It suggests there's going to be a filtering action. [00:36:29] Speaker 01: And so abacuses does is it tells you here is some real estate. [00:36:34] Speaker 01: And you can do two things with it. [00:36:36] Speaker 01: You can either decide you want to look at it, or you can decide you want to excise it out. [00:36:42] Speaker 01: So it creates the starting point and the ending point for filtering actions. [00:36:48] Speaker 04: Well, if we get back to the claim language, and again, this all goes back to the three elements that are associated. [00:36:54] Speaker 04: I mean, the fact that they're associated is critical. [00:36:58] Speaker 04: You have to have a filtering action. [00:36:59] Speaker 01: But they're not associated. [00:37:00] Speaker 01: You agree that they're not associated in the way that your adversary understood. [00:37:04] Speaker 01: He thought you were saying they were associated. [00:37:06] Speaker 01: That is correct. [00:37:06] Speaker 04: OK. [00:37:06] Speaker 04: I think it boils down to this. [00:37:10] Speaker 04: doesn't need to define a filtering action, why would you ever combine a filtering action with it? [00:37:15] Speaker 04: It filters or edits without defining filtering actions. [00:37:20] Speaker 04: Why would you ever add one? [00:37:21] Speaker 04: It makes no sense. [00:37:22] Speaker 04: Thank you. [00:37:23] Speaker 02: Are you satisfied? [00:37:24] Speaker 02: Yes, I am. [00:37:24] Speaker 02: Thank you. [00:37:25] Speaker 02: Thank you. [00:37:25] Speaker 02: Thank you. [00:37:26] Speaker 02: Thank you both. [00:37:27] Speaker 02: That concludes the argument.