[00:00:00] Speaker 04:
Our first case is today.

[00:00:01] Speaker 04:
I'm actually going to make a motion of the court, so I pass the presiding judge position over to Judge O'Malley.

[00:00:09] Speaker 04:
I'd like my law clerk, Ethan, to stand up, please.

[00:00:13] Speaker 04:
I move the admission of Ethan Wyde Park, who's a member of the bar and is in good standing with the highest court of California.

[00:00:22] Speaker 04:
I have knowledge of his credentials and am satisfied he possesses the necessary qualifications.

[00:00:28] Speaker 04:
So Ethan has been my clerk now for close to a year and it's been a complete joy to have him work for me.

[00:00:36] Speaker 04:
He has a very strong background in the field before this court and he's just been a joy to have in chambers.

[00:00:45] Speaker 04:
I've never met somebody that will go down every rabbit hole that could possibly be gone down in the level of depth that Ethan does, which is going to make him really a valuable contribution to our bar, because I have no doubt that when he gives us briefs, they will be thorough and very well thought through.

[00:01:03] Speaker 04:
So I am happy to request that my colleagues consider voting his admission to our court.

[00:01:09] Speaker 01:
Judge Hughes, do we need to deliberate?

[00:01:13] Speaker 01:
We'll grant the motion.

[00:01:15] Speaker 07:
Welcome, Ethan.

[00:01:36] Speaker 04:
Now, call our first case for the day, 2014-1734, M. Blaze versus Apple.

[00:01:46] Speaker 04:
Is it Pavaen?

[00:01:47] Speaker 04:
Mr. Pavaen, please proceed.

[00:01:49] Speaker 06:
Thank you, Your Honors.

[00:01:51] Speaker 06:
Good morning.

[00:01:51] Speaker 06:
I'm Martin Pavaen.

[00:01:52] Speaker 06:
I'm counsel for the plaintiff appellants here.

[00:01:54] Speaker 06:
With me at counsel table is Darren Mogul, another attorney in my firm.

[00:01:59] Speaker 06:
This is an appeal from a jury verdict in which the jury entered a verdict of no direct infringement, and we submit

[00:02:06] Speaker 06:
that on the undisputed evidence no reasonable jury could have reached that verdict.

[00:02:10] Speaker 06:
If your honors agree with us on that point, we also ask that you enter a judgment as a matter of law finding that Apple induced because we believe on the undisputed evidence that Apple was shown to have induced infringement by the direct infringement.

[00:02:25] Speaker 06:
The jury did not reach the question of induced infringement having found there was no direct infringement.

[00:02:30] Speaker 06:
In the alternative, we would ask for a new trial because we believe that the evidence is against the

[00:02:35] Speaker 06:
The finding is against the great weight of the evidence or a seriously erroneous result was reached.

[00:02:39] Speaker 04:
Is your argument on appeal, there's a claim term real time broadcasting, is your argument that the district court erred in its construction or that the jury didn't have substantial evidence upon which it could base a non-infringement verdict?

[00:02:53] Speaker 06:
The latter, Your Honor, and I'll go right to that if you'd like.

[00:02:56] Speaker 06:
On the real-time broadcasting, there were three limitations that Apple argued a trial that were not met by the direct infringes, one of which is real-time broadcasting.

[00:03:04] Speaker 06:
That's the only one that the district court reached.

[00:03:07] Speaker 06:
The district court found that the jury reasonably could have reached that and did not get into the question of whether the other limitations had been met.

[00:03:14] Speaker 01:
But that doesn't limit us.

[00:03:16] Speaker 01:
I mean, obviously, if any one of them hasn't been met, or we conclude that there was substantial evidence to support the conclusion that any one of them hasn't been met, then we would have to affirm, correct?

[00:03:26] Speaker 01:
Correct.

[00:03:27] Speaker 06:
Absolutely correct.

[00:03:28] Speaker 06:
So on real-time broadcasting, Apple made two arguments.

[00:03:31] Speaker 06:
First, it argued that the construction of the court required simultaneous reception at all of the client devices, such as the handheld phones, iPads, et cetera, computers.

[00:03:43] Speaker 06:
that the broadcast that was coming out from the transmitting computer had to get to all of these devices at the same time.

[00:03:49] Speaker 01:
Is that really what it argued?

[00:03:51] Speaker 01:
Or did it argue that they had to be simultaneously transmitted to all those devices at the same time?

[00:03:56] Speaker 06:
They argued that simultaneous transmission requires that it be received at all of them at the same time.

[00:04:02] Speaker 06:
There was no question here.

[00:04:04] Speaker 06:
The claim is directed to the upload end of the system.

[00:04:09] Speaker 06:
And then it goes on to say, search that one or more client devices can download that stream.

[00:04:14] Speaker 06:
There is no question and nobody disputes that the transmission, the creation of the stream, and the upload to the HTTP server is simultaneous.

[00:04:22] Speaker 06:
That's the whole point of the system.

[00:04:23] Speaker 06:
That's the whole point of the invention, is to send out one stream and then anybody can download it as they please.

[00:04:29] Speaker 06:
So they argued and they put up three different devices and showed that they were all getting them at slightly different times.

[00:04:35] Speaker 06:
And therefore, there was no simultaneous reception.

[00:04:38] Speaker 06:
That's not part of the claim.

[00:04:40] Speaker 06:
That's not a basis for finding no infringement.

[00:04:42] Speaker 06:
The second argument they made was the latency argument, and that's the one that the judge adopted.

[00:04:46] Speaker 06:
And he said, well, the time from transmission from when you create the stream, the live action on the field, the baseball game, the live action, and when the person is actually viewing it on the client device is from 15 to 30 seconds.

[00:05:00] Speaker 06:
And a reasonable jury could have found that that latency, as it's called, is too long

[00:05:05] Speaker 06:
to justify real-time broadcasting as he construed the term.

[00:05:09] Speaker 06:
Now, put aside that there's no real mention of latency in the claim.

[00:05:12] Speaker 06:
The evidence showed, and the undisputed evidence showed, and this is on our reply brief, that that delay, that 15 to 30 second delay, occurs inside the client devices.

[00:05:21] Speaker 06:
So what happens is they start downloading the streams.

[00:05:24] Speaker 06:
I think you read these papers.

[00:05:26] Speaker 06:
You'll understand the stream is divided into time segments, five seconds a slice or 10 seconds a slice.

[00:05:31] Speaker 06:
When it gets into the client device, it's buffered.

[00:05:33] Speaker 06:
Why do they buffer it?

[00:05:34] Speaker 06:
Why do they store up a number of frames, slices, before they start showing it?

[00:05:39] Speaker 06:
So it won't stall.

[00:05:40] Speaker 06:
They want to make sure they have enough data to start showing the baseball game.

[00:05:44] Speaker 06:
So if they buffer three five-second slices, that's 15 seconds.

[00:05:47] Speaker 06:
It's happening inside the device.

[00:05:49] Speaker 06:
If they buffer three 10-second slices, it's 30 seconds.

[00:05:53] Speaker 06:
So the evidence showed that the delay was inside the client device.

[00:05:56] Speaker 06:
It has nothing to do with the claim or the transmission.

[00:05:59] Speaker 04:
Well, you said the evidence shows that.

[00:06:01] Speaker 04:
But I thought that there were Apple employees that testified that the HLS developers made a, quote, deliberate choice to include a delay in transmission.

[00:06:12] Speaker 04:
And so if that evidence is before the jury, why doesn't that support the jury's facts?

[00:06:17] Speaker 06:
Because that evidence, Your Honor, is the evidence, the only evidence of this delay that they built into the system.

[00:06:23] Speaker 06:
Don't forget, Apple builds the devices.

[00:06:25] Speaker 06:
They don't build the front end system.

[00:06:27] Speaker 06:
They have nothing to do with that.

[00:06:28] Speaker 06:
That's implemented by Major League Baseball,

[00:06:30] Speaker 06:
or whoever it is who's showing the live event.

[00:06:34] Speaker 06:
The built-in delay is in the devices.

[00:06:36] Speaker 06:
That's the buffering that I talked about.

[00:06:38] Speaker 06:
And the only evidence about that delay was the buffering.

[00:06:42] Speaker 06:
So that should not have been a basis.

[00:06:44] Speaker 06:
No reasonable jury could have found that that vitiates the real-time broadcasting limitation of the claim.

[00:06:53] Speaker 01:
But backing up to the issue of latency, you actually proposed a claim construction that would have

[00:06:58] Speaker 01:
built some latency into it, correct?

[00:07:01] Speaker 06:
We said that it has to get there without substantial delay.

[00:07:04] Speaker 01:
Right.

[00:07:04] Speaker 01:
Get there without substantial delay.

[00:07:06] Speaker 01:
Right.

[00:07:06] Speaker 01:
And then Apple argued with minimal delay.

[00:07:09] Speaker 01:
Right.

[00:07:09] Speaker 06:
And it's in the patent.

[00:07:10] Speaker 06:
The patent says it preferably gets there without substantial delay.

[00:07:13] Speaker 06:
That's what it says.

[00:07:14] Speaker 06:
Let's remember.

[00:07:15] Speaker 01:
When you say get there, it doesn't.

[00:07:17] Speaker 01:
I mean, the claim doesn't say get to the device.

[00:07:20] Speaker 01:
It's to the client who's going to be watching it, right?

[00:07:24] Speaker 06:
Well, the client is watching it on a client device.

[00:07:26] Speaker 06:
I refer to that as the client device, like your handheld phone, or your iPad, or your computer.

[00:07:30] Speaker 06:
That's the device.

[00:07:31] Speaker 06:
That's what it goes to.

[00:07:32] Speaker 06:
That's what it's transmitted to.

[00:07:33] Speaker 01:
OK, so now you're building something else into the claim that you never asked the court to build into the claim, which is that transmission has to include simply receiving it on a device but not watching it.

[00:07:45] Speaker 06:
No, I'm not asking you to build that in.

[00:07:47] Speaker 06:
I'm asking you to read the claim the way it was construed.

[00:07:49] Speaker 05:
But that's not what the claim construction said.

[00:07:51] Speaker 05:
You're arguing a different construction now than what was before the district court.

[00:07:55] Speaker 05:
I mean, it was simultaneous transmission of data to one or more clients matching the human perception of time.

[00:08:01] Speaker 05:
I mean, that to me sounds like the person receiving this is receiving it in real time, not the device.

[00:08:09] Speaker 05:
Who cares what the device is doing?

[00:08:11] Speaker 05:
This says matching human perception of time.

[00:08:15] Speaker 06:
But there's nothing in the claim that talks about what happens in the device.

[00:08:18] Speaker 06:
The claim is devoid of the device.

[00:08:21] Speaker 05:
I understand that.

[00:08:21] Speaker 05:
That's why I think you're proposing a new claim construction to us today that is not this claim construction.

[00:08:28] Speaker 05:
And you didn't appeal this claim construction.

[00:08:30] Speaker 05:
So why, if we're talking about the client person rather than the client device, is not the 15 to 30 second latency not real time?

[00:08:41] Speaker 06:
Because again, I don't believe that even under the court's claim construction, there's anything in there that talks about what happens in the client device.

[00:08:49] Speaker 05:
Again, the claim simply says- Well, let me, because I just don't think that matches up with what this claim instruction is.

[00:08:56] Speaker 05:
Let's just assume that the latency is with the viewer, not the device.

[00:09:01] Speaker 05:
Why isn't 15 to 30 second latency not real time?

[00:09:07] Speaker 06:
Why is it not real time?

[00:09:10] Speaker 06:
I believe that even 15 to 30 seconds latency, frankly, is real time.

[00:09:14] Speaker 06:
I don't see how a delay of that short a period of time from when an action is happening on the field.

[00:09:18] Speaker 05:
How do we decide that?

[00:09:19] Speaker 05:
I mean, you would agree, I think, that a 10-minute delay is not real time, right?

[00:09:24] Speaker 06:
I could agree.

[00:09:25] Speaker 06:
I agree there's some point in there at which it's going to become certainly not real time.

[00:09:28] Speaker 05:
Is a five-minute delay not real time?

[00:09:31] Speaker 06:
Your Honor, that's not about what those facts were not before the court.

[00:09:34] Speaker 05:
Would I find that?

[00:09:35] Speaker 06:
What about one minute?

[00:09:36] Speaker 06:
One minute, I would probably say, is real time.

[00:09:39] Speaker 06:
Because you have to, don't forget the claim.

[00:09:40] Speaker 05:
I mean, even if you're watching these things, I don't know if you watch any of these things, but a lot of times you're watching things on your devices and you want to get it quickly enough to beat some text from some other service you signed up saying somebody just scored a grand slam.

[00:09:56] Speaker 05:
So one minute to me is not particularly close to real time because I'm going to get a text from ESPN that somebody just hit a grand slam before I see it on the screen.

[00:10:07] Speaker 06:
Your Honor, also bear in mind that the claim specifically says that this transmission occurs over a network.

[00:10:13] Speaker 06:
When you go over a network, again, we don't control the network.

[00:10:16] Speaker 06:
Apple doesn't control the network.

[00:10:17] Speaker 06:
Nobody controls the network.

[00:10:18] Speaker 06:
There's always going to be some inherent delay in that.

[00:10:21] Speaker 06:
And the claim, the patent itself specifically talks about that preferably it gets there with minimal what it calls lag.

[00:10:28] Speaker 06:
It recognizes that there's going to be some delay in there.

[00:10:30] Speaker 06:
And I don't believe that any reasonable jury, even if you believe, if you conclude that the court's claim construction

[00:10:36] Speaker 06:
takes into account what happens inside the client device.

[00:10:39] Speaker 06:
I don't see how that type of delay of 15 to 30 seconds is something that would not be viewed as real time under anybody's reasonable interpretation.

[00:10:45] Speaker 01:
But if that's a factual question, don't we have to defer to the jury's view of that?

[00:10:50] Speaker 06:
Not if you don't agree that 15 to 30 seconds is real time.

[00:10:54] Speaker 04:
OK, wait.

[00:10:55] Speaker 06:
But again, that's not my position.

[00:10:57] Speaker 04:
What do you mean not if we don't agree?

[00:10:58] Speaker 04:
That's not the standard.

[00:10:59] Speaker 04:
Is there substantial evidence to support the jury verdict?

[00:11:03] Speaker 04:
So if I think 15 to 30 seconds is still real time, it's not the question.

[00:11:08] Speaker 04:
The question is, is there any reasonable basis upon which the jury could have reached that conclusion?

[00:11:13] Speaker 04:
And look, I realize this is in the context of streaming, but we've got other cases that had to deal with the claim term real time.

[00:11:20] Speaker 04:
And for example, if you were talking about what is the communication technology?

[00:11:26] Speaker 04:
Video conferencing.

[00:11:27] Speaker 04:
Video conferencing, right.

[00:11:29] Speaker 04:
FaceTime or what is the older one that used to drive me crazy and we never used to use because I would say somebody would say something and I could see their mouth moving but I wouldn't hear the words to Skype.

[00:11:39] Speaker 04:
Yeah, right.

[00:11:39] Speaker 04:
That's the one I hated Skype because the mouth moving didn't line up with the words coming across and there was this time lag delay.

[00:11:48] Speaker 04:
You know, real time makes a big difference in this technology in lots and lots of cases.

[00:11:53] Speaker 04:
Now, maybe not quite as much in broadcasting like this, but in this technology, you see the use of this term lots.

[00:12:01] Speaker 04:
And a 15-second or 30-second delay in Skype is enough that makes it completely unusable.

[00:12:07] Speaker 04:
So that would never be real time in that context.

[00:12:09] Speaker 04:
But you're saying that the words real time could be context specific in a way that in broadcasting could make it.

[00:12:16] Speaker 04:
Real time, 15 to 30 second delay?

[00:12:18] Speaker 06:
Well, I certainly believe that in the case of a baseball game, anybody who's watching it, I think, would conclude that 15 or 30 second delay is still real time.

[00:12:26] Speaker 06:
But again, that's not my main argument.

[00:12:28] Speaker 06:
I don't think a reasonable jury should have reached that conclusion.

[00:12:30] Speaker 06:
My main argument remains that I don't believe there's anything in the court's claim construction, Your Honor, or anything in the patent that talks about what's going on inside the client device.

[00:12:40] Speaker 06:
The claim is the patent is silent on that.

[00:12:43] Speaker 06:
That's not part of the invention.

[00:12:45] Speaker 06:
The invention is to get the broadcast stream out there simultaneously.

[00:12:48] Speaker 05:
What is the point of having that phrase matching the human perception of time in the claim construction if it isn't referring to the human's viewing of the transmission rather than the client device's receipt of the transmission?

[00:13:03] Speaker 06:
Well, I think you have to read it in the sense of the term broadcasting.

[00:13:06] Speaker 06:
The broadcasting is the transmission.

[00:13:08] Speaker 06:
Again, if you read the elements of that claim,

[00:13:10] Speaker 06:
There's nothing in that claim that gets inside that client device.

[00:13:14] Speaker 06:
All it simply says is such that they can download it.

[00:13:17] Speaker 06:
The whole claim is directed to the front end of the system, getting it up to that HTTP server, broadcasting it out to that, which is unquestionably simultaneous.

[00:13:26] Speaker 06:
And then the clients can download it as they see fit.

[00:13:29] Speaker 06:
And I'm not arguing that the construction was wrong.

[00:13:32] Speaker 06:
I think the judge was referring there clearly to the real time of the broadcasting.

[00:13:36] Speaker 06:
The broadcast, that's what he was construing.

[00:13:39] Speaker 06:
The broadcast is not the reception.

[00:13:40] Speaker 06:
The reception is a different step, not covered by our patent.

[00:13:44] Speaker 04:
We don't build those devices.

[00:13:45] Speaker 04:
You say that's what he was construing.

[00:13:48] Speaker 04:
Well, wouldn't his decision to allow

[00:13:53] Speaker 04:
the jury verdict on real time to stand, fly in the face of the idea that if he really read this claim the way you're saying it is to be read, if his claim construction really was narrowly limited to the transmission and not the receipt, then wouldn't he have gone your way on Jamal on this real time question?

[00:14:15] Speaker 06:
I don't think he didn't address it all in his decision.

[00:14:18] Speaker 06:
I don't know what he was thinking, because he didn't address in his decision the issue of what goes on inside the devices at all, and whether that's a distinction to be made.

[00:14:26] Speaker 06:
So I don't know what he was thinking.

[00:14:28] Speaker 06:
I agree that his decision suggests that he may have thought otherwise.

[00:14:31] Speaker 06:
I do not dispute that.

[00:14:32] Speaker 06:
But I think it's clear from the claim and his own construction that that's incorrect.

[00:14:38] Speaker 04:
Do you want to save the remainder of your time for rebuttal?

[00:14:42] Speaker 06:
Sure.

[00:14:42] Speaker 06:
Thank you.

[00:14:44] Speaker 04:
Mr. Alcock.

[00:14:46] Speaker 02:
Yes.

[00:14:47] Speaker 02:
Good morning.

[00:14:48] Speaker 02:
May it please the court, counsel.

[00:14:51] Speaker 02:
I'm here privileged to represent Apple.

[00:14:54] Speaker 02:
There are a number of grounds to support the verdict.

[00:14:57] Speaker 04:
I'd like to ask you a procedural question at the outset.

[00:15:01] Speaker 04:
You have what I think is framed as a conditional cross appeal related to validity.

[00:15:06] Speaker 04:
Is it your view, just want to be very clear, that if we were to affirm on non-infringement that we would have no need to reach the issues of validity?

[00:15:16] Speaker 02:
Absolutely correct.

[00:15:17] Speaker 02:
Absolutely correct.

[00:15:19] Speaker 02:
So there are many grounds to support the verdict.

[00:15:21] Speaker 02:
I'm going to focus on what I would say are the three substantial evidence grounds.

[00:15:26] Speaker 02:
The first one is the one that has been being discussed, the real time substantial evidence question.

[00:15:32] Speaker 02:
That's the one that the judge, the trial court, discussed in the Jamoel.

[00:15:37] Speaker 02:
And then I'm going to talk about how the evidence, substantial evidence, supports the implied finding that the predetermined data size limitation is likewise not met.

[00:15:48] Speaker 02:
And last, the substantial evidence that supports the implied finding that the uploading of the sequence is not met.

[00:15:54] Speaker 01:
So let me get to... Let's do the first one because that's where we focused with your friend on the other side.

[00:16:00] Speaker 01:
His argument is that what we're talking about here is the transmission of data, not necessarily the receipt of it, so that if it is transmitted in real time just because the person holding the device doesn't get to see it until a delay of 15 or 30 seconds goes on, that that doesn't change the fact that it's transmitted in real time.

[00:16:23] Speaker 02:
Well, that's not what the claim construction says.

[00:16:26] Speaker 02:
That's not what the arguments were at the claim construction.

[00:16:29] Speaker 02:
That's not what was argued to the jury.

[00:16:31] Speaker 02:
And that's not what the evidence was all about.

[00:16:33] Speaker 01:
Well, the claim construction does say simultaneous transmission of data to one or more clients matching the human perception of time.

[00:16:43] Speaker 01:
So are we assuming that the clients have to be the person doing the watching while they're watching?

[00:16:48] Speaker 01:
Or could the clients be the client devices?

[00:16:52] Speaker 02:
I believe the real-time broadcasting portion of the limitation requires one to analyze whether or not the transmission is in real time.

[00:17:04] Speaker 02:
That is matching the human perception of time.

[00:17:07] Speaker 01:
I got that.

[00:17:08] Speaker 01:
But the question is, does the transmission, his argument would be that it is transmitted in real time.

[00:17:16] Speaker 01:
It's just that your device builds in at the left.

[00:17:20] Speaker 01:
That doesn't mean it's not transmitted in real time.

[00:17:23] Speaker 01:
It just means it's not viewed in real time.

[00:17:25] Speaker 02:
Well, first of all, the record evidence is that not on the transmission side that it was transmitted in real time.

[00:17:31] Speaker 02:
The record evidence is that there was up to a 42-second delay.

[00:17:35] Speaker 02:
And the only evidence of that that occurred in the client was 15 seconds.

[00:17:40] Speaker 02:
So there was evidence of a substantial amount of delay outside of the client.

[00:17:44] Speaker 02:
However, on the point that Your Honor is addressing,

[00:17:49] Speaker 02:
issue is whether or not the client viewing was in real time.

[00:17:56] Speaker 02:
And that's what the real time broadcasting limitation requires.

[00:18:01] Speaker 02:
And that's where the minimal delay that we proposed as the claim construction or no substantial delay that they proposed with the claim construction is measured from.

[00:18:12] Speaker 02:
And the court came up with its own construction using the human perception of time or at the same rate as the external event

[00:18:20] Speaker 02:
What is the external event?

[00:18:21] Speaker 02:
The external event is the event that is being broadcast.

[00:18:24] Speaker 02:
What human is involved in this process?

[00:18:27] Speaker 02:
The human is the one watching that external event.

[00:18:30] Speaker 02:
So clearly, the claim construction appropriately focuses on what is the nature of the human viewing of the experience.

[00:18:40] Speaker 02:
And that's what real-time broadcasting, that's what the term means.

[00:18:45] Speaker 00:
Do you think that claim construction actually did away with any possibility of latency?

[00:18:50] Speaker 02:
No, I think the claim construct... No one argued that.

[00:18:53] Speaker 02:
And the judge, as he says in his JMOL in the claim construction order, didn't say that he was doing away with latency.

[00:19:01] Speaker 02:
Both sides argued that some latency was permitted under the patent.

[00:19:05] Speaker 02:
We had a slightly different way of describing it.

[00:19:08] Speaker 02:
The court then adopted another suggestion, his own, that was intended to

[00:19:18] Speaker 02:
capture the amount or allow the jury to decide how much latency was inherent in the system and whether or not that amount of latency allowed it to satisfy the real-time broadcasting.

[00:19:31] Speaker 02:
And the patent specifications that the court referred to when he was coming up with his construction referred to the transmission throughout the whole system.

[00:19:43] Speaker 02:
not only from the transmitting computer, but from the server to the client devices.

[00:19:49] Speaker 02:
And obviously, how that perception, the human perception, matched the external event.

[00:19:58] Speaker 02:
So there was really no question that the court's claim construction intended to measure the broadcast by the human perceiving the event.

[00:20:11] Speaker 02:
Did I answer your question, Your Honor?

[00:20:14] Speaker 01:
Yeah, but I guess it still seems to me that if you talk about human perception of time, it seems that you're essentially doing away with any concept of latency.

[00:20:24] Speaker 01:
But you're saying that at trial, both parties argued to the jury that some latency was allowed.

[00:20:29] Speaker 02:
Right.

[00:20:29] Speaker 02:
And the question was how much is too much.

[00:20:32] Speaker 02:
But you're right, Your Honor.

[00:20:33] Speaker 02:
I believe the court's construction

[00:20:35] Speaker 02:
was stricter, I would say, in terms of how much latency would have been permissible than either of the parties constructions.

[00:20:44] Speaker 05:
I suppose it could be latency that is measurable but imperceptible to human perception.

[00:20:50] Speaker 02:
Correct.

[00:20:51] Speaker 02:
Milliseconds.

[00:20:52] Speaker 02:
Which is actually when some of the Apple witnesses were asked to testify on this topic.

[00:21:00] Speaker 02:
And they were comparing FaceTime

[00:21:03] Speaker 02:
which is a real-time system with this system.

[00:21:07] Speaker 02:
They said that they defined latency in terms of microseconds because it did not match the human perception of time.

[00:21:14] Speaker 02:
It was imperceptible.

[00:21:16] Speaker 04:
What in the specification supports the idea that the real-time broadcasting is all about receipt by the client as opposed to transmission by the broadcaster?

[00:21:31] Speaker 04:
So what is, quite to me, your best specification evidence for the idea that this claim ought to be construed as focused on client's receipt as opposed to broadcasters' transmission when it's talking about real time?

[00:21:47] Speaker 02:
Yes, there are two parts of the specification that refer to what the client would do

[00:21:56] Speaker 02:
in order to speed up the process so that it would receive the data from the server as fast as it could.

[00:22:05] Speaker 02:
And that would be a column eight lines, one through seven, and the quote is, when the client connects to the server and starts to receive the data stream substantially in real time, preferably

[00:22:18] Speaker 02:
only a minimal lag as it is transmitted from computer 34.

[00:22:24] Speaker 02:
So what that means is the client... Okay, well time out though.

[00:22:27] Speaker 04:
Why does this actually favor you as opposed to cutting against you?

[00:22:32] Speaker 04:
Because this expressly says when the client receives the data stream substantially in real time,

[00:22:39] Speaker 04:
But the claim doesn't talk about receipt in real time.

[00:22:43] Speaker 04:
The claim talks about broadcast in real time.

[00:22:46] Speaker 04:
And transmission is the word that's expressly used in connection with the real time.

[00:22:51] Speaker 04:
So why doesn't this actually cut against you in that this real time modifier is clearly modifying the receiving of the data, and the claim is expressly linking the real time to the transmission of the data?

[00:23:05] Speaker 02:
Oh, yeah, but it's transmission to the client.

[00:23:07] Speaker 02:
And so that means that the client is receiving the data.

[00:23:12] Speaker 04:
This pattern uses throughout it transmitted and received to mean two different things, don't it?

[00:23:22] Speaker 02:
Yes.

[00:23:22] Speaker 04:
Because it uses the word transmitted.

[00:23:24] Speaker 04:
It's got to be like 40 times.

[00:23:25] Speaker 04:
And I don't understand the word transmitted ever to be used as encapsulating receipt.

[00:23:30] Speaker 04:
And in fact, since it does use the word receiving the data and talk about receiving the data probably about 20 times,

[00:23:36] Speaker 04:
Are those two distinct concepts as defined by this patent?

[00:23:39] Speaker 02:
Right.

[00:23:39] Speaker 02:
But the claim requires real-time broadcasting.

[00:23:43] Speaker 02:
And that needs to be measured somehow.

[00:23:45] Speaker 02:
And I was trying to answer the court's question with respect to the court asked, how does the patent describe the receipt as being important?

[00:23:57] Speaker 02:
And what that patent specification reference that I just mentioned shows is it is talking about

[00:24:03] Speaker 02:
altering the path not from the transmitting computer but from the server to the client device so as to allow the client device to receive the data quicker because it's opening up the transmission line.

[00:24:19] Speaker 02:
And then at column 10, lines 59 through 63.

[00:24:24] Speaker 02:
Further preferably, the client compares the time stamped in the data stream to a local real-time clock.

[00:24:31] Speaker 02:
And if it determines there's a significant lag in the time codes relative to the real time clock, opens additional links with server 36 in order to increase the overall data rate.

[00:24:42] Speaker 02:
So that has nothing to do with the transmitting computer.

[00:24:47] Speaker 02:
That has everything to do with the client device opening up additional lines from the server, which is a separate from the original transmission.

[00:24:59] Speaker 04:
So there's more on column 11, line 9 through 21.

[00:25:05] Speaker 04:
I think that also supports what you're saying.

[00:25:08] Speaker 04:
So your argument, if I understand it then, is that this district court's construction, that real time encapsulates the entire process from cradle to grave in terms of transmission to receipt is a reasonable construction and otherwise supported by the spec.

[00:25:23] Speaker 02:
Absolutely.

[00:25:23] Speaker 02:
And if you just think about it, it makes sense, right?

[00:25:27] Speaker 02:
If you had, under the construction that Emblaze is arguing, under the approach they're arguing, the thing could be delayed three hours at the server, intentionally.

[00:25:39] Speaker 04:
Now, when you say it just makes sense, see, I think you lose me there just a tiny bit.

[00:25:44] Speaker 04:
It makes sense in terms of these claim terms, where it says real-time broadcasting from a transmitting computer to one or more client computers over a network.

[00:25:53] Speaker 04:
And so there, I think the words real-time are used

[00:25:57] Speaker 04:
to reference broadcasting, which is then further defined to be transmitting receipts, server receipt.

[00:26:03] Speaker 04:
That's kind of the way this claim expressly calls it out.

[00:26:06] Speaker 04:
But if the term had simply been real-time broadcasting, and if broadcasting had been defined as transmission throughout these claims,

[00:26:14] Speaker 04:
then would it really be fair to import receipt in?

[00:26:17] Speaker 04:
Suppose that there was no question that all the transmission occurred at a single moment in time simultaneously, and that every client was capable of receiving it simultaneously, but you all built a lag into your receiving devices that were irrelevant to the transmission.

[00:26:32] Speaker 04:
Wouldn't that be a different case if this claim term was limited to real-time transmission?

[00:26:36] Speaker 02:
Well, yeah, sure.

[00:26:38] Speaker 02:
You could rewrite the claim and not require real-time broadcasting measured in the way that the patent describes it.

[00:26:45] Speaker 02:
Yes, you could rewrite the claim, but that isn't what it is.

[00:26:47] Speaker 04:
So the claim said real-time transmission in isolation as opposed to real-time broadcasting, which explains transmitted to a client, over a network, blah, blah, blah.

[00:26:58] Speaker 02:
Well, and assuming further, the patent didn't have any of the other specification references that made clear

[00:27:05] Speaker 02:
that that's what they were talking about, yes.

[00:27:08] Speaker 02:
I mean, you could rewrite the claim.

[00:27:09] Speaker 02:
But that isn't the claim, nor the specification, nor the claim construction that we got.

[00:27:14] Speaker 01:
The lag in the Apple system that you say can be 15 to 30 seconds, and you think that's separate from other lag.

[00:27:25] Speaker 01:
But the lag that's built into the system

[00:27:28] Speaker 01:
Where is that lag?

[00:27:30] Speaker 01:
In other words, once it's received, is it fully downloaded or it just can't be broadcast?

[00:27:37] Speaker 01:
Where is that delay?

[00:27:40] Speaker 02:
So this is an inducement case against Apple.

[00:27:44] Speaker 02:
And so Apple instructs people to build systems.

[00:27:50] Speaker 02:
And their instruction has them to build delay into the system.

[00:27:54] Speaker 02:
So the record at trial was not fully developed on this issue.

[00:27:59] Speaker 02:
This is where the delay rose is raised first in their reply brief.

[00:28:05] Speaker 02:
I mean, it wasn't argued at trial.

[00:28:07] Speaker 02:
It wasn't argued in their opening brief.

[00:28:09] Speaker 02:
It wasn't argued anywhere until we got their reply brief.

[00:28:11] Speaker 02:
So the record isn't fully developed.

[00:28:13] Speaker 02:
But what the Apple instructions are is to pick the third slice back.

[00:28:23] Speaker 02:
as in order to accommodate for stalls or switching in the system.

[00:28:32] Speaker 02:
So you'll get a smooth viewing of the thing.

[00:28:37] Speaker 02:
Each of the slices, they could be set at different times.

[00:28:42] Speaker 02:
Typically in the systems at trial, they were set five seconds.

[00:28:47] Speaker 02:
So that's where you get the 15 seconds.

[00:28:50] Speaker 02:
They picked three slices back.

[00:28:52] Speaker 02:
and then start playing so that you sort of have a 15 second hold and so that even if the system goes down, you've got 15 seconds for it to come back up and you won't perceive any stall in it.

[00:29:08] Speaker 02:
Now the record isn't fully developed as to where the other 15 to 24 seconds or so could occur in the system.

[00:29:21] Speaker 02:
Because this was never an issue at trial.

[00:29:23] Speaker 02:
It wasn't argued to the jury.

[00:29:24] Speaker 02:
It wasn't argued to the judge in JMOL.

[00:29:27] Speaker 02:
But that's, I believe, the record on that point.

[00:29:31] Speaker 01:
OK.

[00:29:33] Speaker 02:
So I didn't get to the other two arguments.

[00:29:36] Speaker 02:
We have them in your briefs.

[00:29:38] Speaker 02:
Yes, they're covered.

[00:29:39] Speaker 02:
Thank you, Mr. Alcott.

[00:29:40] Speaker 02:
I see my time is over.

[00:29:41] Speaker 03:
Thanks.

[00:29:42] Speaker 03:
Mr. Patain?

[00:29:44] Speaker 06:
Thank you very much, Your Honor.

[00:29:46] Speaker 06:
I just want to make a few quick points there.

[00:29:48] Speaker 06:
Firstly, this very issue, of course, was argued at the trial.

[00:29:52] Speaker 06:
It was one of the bases upon which they argued there was no infringement to the jury.

[00:29:55] Speaker 06:
Let me just read you from quoted in our brief at page A1595 to 1596.

[00:30:00] Speaker 06:
Apple's expert.

[00:30:01] Speaker 06:
Well, he's HLS, Apple's HLS system, HTTP live sifting, collects, I believe, its two or three buffers worth or segments of data in the client before it plays.

[00:30:12] Speaker 06:
So that adds, depending upon how large those segments are,

[00:30:15] Speaker 06:
between 15 and 30 seconds worth of latency.

[00:30:18] Speaker 06:
So they testify, that was their witness testifying to that.

[00:30:21] Speaker 06:
Secondly, your honor asked for sides to the spec.

[00:30:24] Speaker 06:
Those sides to the spec, I think, make abundantly clear that the only thing we're talking about here is transmission at best to the client device, not what happens inside.

[00:30:33] Speaker 06:
Remember, these sections say, look for example at specification eight.

[00:30:37] Speaker 06:
What's so frustrating here, this is exactly our system what they're doing, exactly what we're doing.

[00:30:41] Speaker 06:
They say here that in column 8, it says, identify what time to begin, preferably with minimal lag.

[00:30:48] Speaker 06:
And then it reads the index file to identify what time and start receiving the data in the stream substantially in real time.

[00:30:56] Speaker 06:
It's the receipt of the data at the client device.

[00:30:59] Speaker 06:
The other point he pointed to is where you're measuring the timestamps.

[00:31:02] Speaker 06:
Users don't measure timestamps.

[00:31:03] Speaker 06:
I don't measure a timestamp when I'm watching my device.

[00:31:06] Speaker 06:
The client device is what automatically checks the timestamp.

[00:31:10] Speaker 06:
And if it's not receiving the data fast enough, it will ask for a different bitrate stream.

[00:31:15] Speaker 06:
And it'll do this adaptive bitrate adjustment that's discussed in the briefs.

[00:31:19] Speaker 06:
But there's nothing, nothing in the patent, the claims, or the judge's construction that says that what happens after once it's received at the client device

[00:31:28] Speaker 06:
avoids the claim limitation of real-time broadcasting.

[00:31:31] Speaker 06:
That's just not in the claim.

[00:31:32] Speaker 06:
It's not in the construction.

[00:31:33] Speaker 06:
That's why we didn't appeal that construction.

[00:31:35] Speaker 06:
There's nothing that talks about it.

[00:31:36] Speaker 06:
The construction talks about the simultaneous transmission to the client.

[00:31:41] Speaker 06:
It doesn't say the client has to actually do any specific thing once it receives it, let alone play it back or play it back with this amount of latency or that amount.

[00:31:50] Speaker 06:
It's silent as hell.

[00:31:51] Speaker 05:
So in your view, a system that transmits in real time but builds in a half-hour time lag to the actual viewer would still infringe.

[00:32:01] Speaker 06:
That's because I'm not accusing what's going on inside the device.

[00:32:05] Speaker 06:
It would be real-time broadcasting.

[00:32:06] Speaker 06:
It would be real time to the client device.

[00:32:08] Speaker 06:
The fact that the client chooses not to view it in real time is a client choice.

[00:32:13] Speaker 06:
But that's not what the patent's directed to.

[00:32:17] Speaker 06:
I see my time is up.

[00:32:19] Speaker 04:
Okay.

[00:32:19] Speaker 04:
I thank both counsel for their argument.

[00:32:21] Speaker 04:
The case is taken under submission.

[00:32:23] Speaker 04:
Our next case for today.

[00:32:25] Speaker 04:
Thank you, Your Honor.