[00:00:00] Speaker 02: a brief announcement. [00:00:01] Speaker 02: It was discovered after counsel had arrived and pointed out to us that we had a conflict that was not apparent to us immediately on the records that we check for conflicts. [00:00:14] Speaker 02: And so what we have decided to do is to hear the argument of the first case, our appreciation and thanks to counsel for calling this conflict our attention now rather than later. [00:00:28] Speaker 02: Judge Laurie and I will hear the argument if we are in complete agreement as to everything that will, I think, resolve the issue. [00:00:38] Speaker 02: If for any reason it looks as if we should proceed again, I trust you will bear with us. [00:00:44] Speaker 02: It may be appropriate to have an additional argument rescheduled. [00:00:50] Speaker 02: If so, we will try and schedule it promptly and efficiently, but with the convenience for everyone involved. [00:00:57] Speaker 02: So let us proceed then with the first argued case, number 16, 1015, Impulse Technology Against Microsoft Corporation. [00:01:08] Speaker 02: Mr. Rosenthal. [00:01:14] Speaker 01: Good morning, your honor. [00:01:15] Speaker 01: May it please the court. [00:01:17] Speaker 01: My name's Brian Rosenthal. [00:01:20] Speaker 01: Take one moment for background before I get into the argument. [00:01:23] Speaker 01: And the background is that the accused products in this case are video games that work with a system by Microsoft called the Microsoft Connect. [00:01:31] Speaker 01: Rather than using a joystick to control whatever's happening on the screen, there's a camera and the player moves within a particular area. [00:01:40] Speaker 01: And there's a picture, an avatar on the screen that does exactly what you're doing. [00:01:46] Speaker 01: We've put a picture of this on page 17 of our brief. [00:01:49] Speaker 01: And what you see is you'll see an avatar of yourself. [00:01:53] Speaker 01: If you move to the left, the avatar moves to the left. [00:01:56] Speaker 01: If you go to the right, the avatar moves to the right. [00:01:58] Speaker 01: The same thing is shown in the patent. [00:02:00] Speaker 01: It's the same concept. [00:02:02] Speaker 01: When you move, your avatar moves. [00:02:05] Speaker 01: The way that these games work is different manufacturers, like Microsoft and Electronic Arts and others, will make a game that comes on a CD. [00:02:15] Speaker 01: You buy it in Best Buy. [00:02:17] Speaker 01: And that game, [00:02:18] Speaker 01: uh... has its own parameters like how big is the space that you're allowed to play with it some that some games require a big space some games require small space different sizes and shapes the cd specifies all of that when it leaves the shop that's the background the errors that the court made in this case in our view principally and start with claim construction they're really both claim construction errors i want to start with the first error and that is that the court improperly [00:02:48] Speaker 01: read into the word defined physical space, a limitation that you have to define that space before you even turn the system on. [00:02:58] Speaker 01: And that's a limitation that's found nowhere in the claims. [00:03:01] Speaker 01: The district court agrees that it's not in claims on A-70. [00:03:07] Speaker 01: It's not in claims. [00:03:10] Speaker 01: He found it only in the specifications. [00:03:12] Speaker 01: I want to start with the claims though, because the claims really tell you why you need a defined physical space. [00:03:18] Speaker 01: If we look at claim one, claim one is on A164 if you wanted to follow along, but basically what claim one says is that you continuously track an overall position of a player in a defined physical space. [00:03:34] Speaker 01: And then in real time, you translate that position into a corresponding position of the virtual player in the virtual space. [00:03:42] Speaker 02: But what you're asking us to do is to construe the claim more broadly than how the invention is described in the specification. [00:03:50] Speaker 02: And as you know, those are not simple concepts. [00:03:55] Speaker 02: It's equally feasible to invalidate a claim by construing it more broadly than the specification. [00:04:02] Speaker 02: So there is a powerful purpose of that description. [00:04:05] Speaker 02: There was a lot, a fair amount, sufficient amount of prior art [00:04:10] Speaker 02: in this area as well, despite having been more perhaps of a pioneer. [00:04:15] Speaker 02: And so do tell us why this claim should be construed more broadly than the way the inventors described it. [00:04:25] Speaker 01: Certainly. [00:04:25] Speaker 01: So the premise is something that we disagree with. [00:04:29] Speaker 01: We are not at all asking for this term to be construed more broadly than how the invention is described. [00:04:34] Speaker 01: And that's a very important point. [00:04:37] Speaker 01: It is absolutely true that [00:04:39] Speaker 01: If the invention is described narrowly, the claims ought to be construed narrowly. [00:04:44] Speaker 01: No problem. [00:04:45] Speaker 01: But in this case, the invention is never described in those narrow terms. [00:04:49] Speaker 01: There is a lot of prior art. [00:04:51] Speaker 01: But nor was the prior art ever distinguished on anything having to do with the defined space. [00:04:56] Speaker 03: But you've got a precise claim that talks about physical space. [00:04:59] Speaker 01: Yes. [00:05:00] Speaker 01: And the space is physical. [00:05:01] Speaker 01: There's no question about that. [00:05:03] Speaker 01: When I play the Kinect, I can play it here. [00:05:06] Speaker 01: I can play it in my living room. [00:05:07] Speaker 01: I can play it outside. [00:05:09] Speaker 01: When I'm playing it, it's physical. [00:05:12] Speaker 03: The trial court found that it was the opposite of physical space. [00:05:17] Speaker 01: The trial court was wrong. [00:05:18] Speaker 01: It's absolutely physical space. [00:05:19] Speaker 01: When I'm playing this game, and this is why I wanted to focus on the claims, the claims talk about tracking a physical location of a player in the defined physical space. [00:05:30] Speaker 01: The defined physical space must be physical at the time the player's playing it. [00:05:36] Speaker 01: At the time that I'm playing the connect, it's absolutely physical. [00:05:40] Speaker 01: You can't play the Kinect in some abstract way. [00:05:42] Speaker 01: You physically have to be in front of the camera. [00:05:45] Speaker 01: It's physically tracking where I am by using a camera. [00:05:49] Speaker 01: As I move around in my living room, it's physically determining where I am and then translating that into a virtual location, which my player will then move. [00:05:59] Speaker 01: That's absolutely physical. [00:06:01] Speaker 01: Now, the reason that the district court got the claim construction wrong is two things. [00:06:06] Speaker 01: First, the district court [00:06:08] Speaker 01: totally ignored this court's precedent that there's only two ways you can limit a claim to what's in the specification. [00:06:14] Speaker 01: You can either limit it because there's lexicography, there's a definition, or there's disavowal. [00:06:21] Speaker 01: In both of those cases, there has to be clear intent. [00:06:25] Speaker 01: In lexicography, there has to be a definition, explicit or implicit, but a definition. [00:06:29] Speaker 01: With disavowal, you've got to have a clear disclaimer or distinction or my invention is this or it's important. [00:06:37] Speaker 01: Now, I want to look at the specification, because none of that's there. [00:06:41] Speaker 01: When we look at the specification on column 9, everything you need to know is on column 9 in this particular case. [00:06:49] Speaker 01: Maybe column 10 a little bit, but it's mostly on column 9. [00:06:53] Speaker 03: You mean the pattern consists of 30-something columns? [00:06:58] Speaker 03: Column 9 tells us all we need to know. [00:07:00] Speaker 01: Luckily for this appeal, for this issue, everything you need to know is on Column 9. [00:07:04] Speaker 01: There's a lot of good stuff in the patent, but this is all you need to look at for this particular issue. [00:07:08] Speaker 01: A-150. [00:07:10] Speaker 01: Let's start from the top. [00:07:12] Speaker 01: Line 8. [00:07:13] Speaker 01: This specification tells us exactly what is meant by a defined physical space. [00:07:18] Speaker 01: A defined physical space may be any available area, indoors or outdoors, [00:07:23] Speaker 01: sufficient size to allow the player to undertake the movements that are necessary. [00:07:27] Speaker 01: So that's the first thing it says, which is, by the way, exactly where our proposed definition below came from. [00:07:32] Speaker 01: We just said that's what it says to define physical spaces. [00:07:35] Speaker 01: It then says on line 15, it will be appreciated that the system may be adaptable to physical spaces of various sizes. [00:07:44] Speaker 01: So when you have the system in place, you can adapt it. [00:07:47] Speaker 01: You can say, OK, for this game, I want to have an eight by eight area. [00:07:52] Speaker 01: Okay, for another game I want to have a 20 by 20 area because it's a game with multiple players. [00:07:57] Speaker 01: By the way, that's exactly how the commercial embodiment works. [00:07:59] Speaker 01: If you look at A2473, we've got a brochure of our device, it's exactly how it works. [00:08:05] Speaker 01: You set it up and then you can have a game with a small size, a game with a large size. [00:08:10] Speaker 01: It's all done after you place the sensor. [00:08:13] Speaker 02: But you also have issues of the detailed description and enablement and all the rest of it, along with [00:08:22] Speaker 02: whatever breadth of description there may be in the specification. [00:08:26] Speaker 01: Absolutely. [00:08:27] Speaker 01: But what I've just described, I'm reading from the specification, it absolutely describes how to have a system where the physical space can change. [00:08:38] Speaker 01: Even for a given system. [00:08:39] Speaker 01: I've set up a system. [00:08:40] Speaker 01: You can adapt to different sizes. [00:08:42] Speaker 01: In fact, the very next paragraph, line 18, tells you, you can bring this system [00:08:50] Speaker 01: to all kinds of different places. [00:08:52] Speaker 01: You can bring it to a football field, a basketball court, a gym, anywhere where there's enough size to play. [00:08:59] Speaker 02: It doesn't tell you how to do it. [00:09:01] Speaker 02: It says that you can do it or that someone might figure out a way of doing it. [00:09:06] Speaker 01: Well, that's a question for another day. [00:09:08] Speaker 01: The question of whether or not the claims are enabled is not an issue in this case. [00:09:11] Speaker 01: We believe that this is not rocket science. [00:09:15] Speaker 01: This is [00:09:15] Speaker 01: quite easy to do and very known. [00:09:17] Speaker 02: In fact, when you look at the specification down close... Well, the claim construction is construing the claim in light of the specification, which includes all of the requirements for what needs to be provided in order to have the scope covered by the claim. [00:09:33] Speaker 01: Certainly true. [00:09:34] Speaker 01: On the other hand, the inquiry is not [00:09:38] Speaker 01: Is there enough written description and enablement support for the claim once we construe it properly? [00:09:43] Speaker 01: The inquiry starts with, according to Thorner and Hill-Rom and all the decisions that we cited in that regard in our cases, the inquiry is, what is the right meaning of the claims in view of the specification? [00:09:57] Speaker 01: Now there's a second inquiry, which is, under that construction, [00:10:01] Speaker 01: Is there sufficient detail in here to allow someone to practice the claim? [00:10:04] Speaker 02: I always thought that was the same inquiry for claim construction. [00:10:08] Speaker 02: You construe the claim. [00:10:09] Speaker 02: That's it. [00:10:10] Speaker 02: This is what the claim means. [00:10:12] Speaker 02: This is its scope. [00:10:13] Speaker 02: If this is what you're practicing, school's out. [00:10:16] Speaker 01: And that is the right way. [00:10:17] Speaker 01: But in your description of the analysis, nothing in there was, now, once we've construed this claim, let's do a double check to make sure that it's enabled. [00:10:25] Speaker 01: That's a separate analysis. [00:10:27] Speaker 01: Once the claim is construed, then we ask the question, [00:10:32] Speaker 01: Is there enablement? [00:10:33] Speaker 01: And by the way, the record has no evidence because we haven't reached that stage of the litigation. [00:10:38] Speaker 01: There's no evidence of whether or not that is enabled or not. [00:10:44] Speaker 01: And as a result, it's not appropriate for this court to say whether or not it's enabled because the record hasn't been developed. [00:10:52] Speaker 01: That's going to come later in the litigation once the claims are construed. [00:10:56] Speaker 01: At this moment in time, the question is how to construe the claims, and I go back to [00:11:00] Speaker 01: the premise that this court sets out, which is you can only limit the claims in those two circumstances. [00:11:07] Speaker 01: Now, the district court relied principally on one passage of one preferred embodiment, and that is at line 30. [00:11:16] Speaker 01: It starts really up at line 28. [00:11:19] Speaker 03: But you just told us that everything we need to know is in claim in column 9. [00:11:24] Speaker 01: It still is in column 9, but I'm a little lower in the column. [00:11:28] Speaker 01: Thankfully, it actually sequentially follows my argument. [00:11:32] Speaker 01: So I'm just going a little bit further down in the column to line 28. [00:11:37] Speaker 01: I think I may have said column 28. [00:11:40] Speaker 01: That might have been the confusion. [00:11:41] Speaker 01: Sorry about that, Jeff. [00:11:43] Speaker 01: No confusion. [00:11:43] Speaker 01: OK. [00:11:43] Speaker 01: So it's talking about a particular type of sensing system called the dinosite system. [00:11:48] Speaker 01: And the judge focused on the language at line 30, that there is a mast, [00:11:55] Speaker 01: centered laterally with respect to the defined physical space at a distance sufficiently outside the front boundary to allow the sensors to track the movement. [00:12:06] Speaker 01: That's really what the district court latched on to over and over and over again. [00:12:11] Speaker 01: And there are two problems with that. [00:12:14] Speaker 01: First, it's a preferred embodiment. [00:12:16] Speaker 01: It goes on to say another suitable tracking system is the MAC Reflex on line 52. [00:12:22] Speaker 01: And then it goes on on line 55 and says you can use [00:12:25] Speaker 01: electromagnetic, acoustic, ultrasonic on column 10. [00:12:31] Speaker 01: As I mentioned, there's one little thing on column 10. [00:12:33] Speaker 01: Column 10 says you can use a camera with no beacon. [00:12:36] Speaker 01: So there's all kinds of different tracking systems, and none of those have any language like what the district court latched onto. [00:12:44] Speaker 01: But there's a second really serious problem with what the district court did. [00:12:48] Speaker 01: It misread even that sentence. [00:12:50] Speaker 01: The sentence that I quoted on line 30 of column 9 [00:12:55] Speaker 01: He says, well, that tells us that first you define the physical space, and then you place the sensor. [00:13:02] Speaker 01: That's not what the sentence says. [00:13:03] Speaker 01: The sentence says it's describing a physical relationship between two things. [00:13:08] Speaker 01: So imagine if this is the physical space, the podium that I'm standing before, and I'm the mast. [00:13:14] Speaker 01: Right now, I am centered laterally with respect to this podium, and I'm sufficiently outside the front edge of it such that I can see it. [00:13:22] Speaker 01: What isn't said is which one came first. [00:13:24] Speaker 01: Was I standing here and did someone move this podium in front of me? [00:13:27] Speaker 01: Or was the podium here and I came towards it? [00:13:30] Speaker 01: It doesn't tell me because it doesn't care. [00:13:32] Speaker 01: The claims don't care. [00:13:34] Speaker 01: This invention doesn't care whether the defined physical space is set up first and then you put a sensor in, or whether you put a sensor in and then you define the physical space. [00:13:45] Speaker 01: It's absolutely irrelevant to this invention. [00:13:48] Speaker 01: That's why our commercial embodiment does it exactly the way that we're saying the claims should be construed to cover. [00:13:54] Speaker 01: construction would exclude the way that we practice these claims for years. [00:13:59] Speaker 01: And by the way, it would be an unnatural reading of these claims to even suggest that the way that this works is that somehow it requires a physical space to first be established and then somehow you've got to position the camera just right and align it and calibrate it just so it knows exactly what it's looking at. [00:14:19] Speaker 01: There's no description of that in here. [00:14:21] Speaker 01: And that suggests that the right reading of this is that [00:14:24] Speaker 01: The patent specification simply doesn't care whether or not the defined physical space comes first, and then the sensor gets there, or the sensor gets there, and then you define the physical space. [00:14:34] Speaker 01: It's irrelevant. [00:14:35] Speaker 01: And so under this court's precedent, because there's no statements, they cite Symantec, and they cite Ultimate Pointer, and a couple of other cases that they cite. [00:14:47] Speaker 01: Every single one of those cases has statements in the specification saying, [00:14:52] Speaker 01: it's important to me that this limitation is here or the prior art is different because it doesn't have a pointing device. [00:15:01] Speaker 01: Those are the sorts of things, you know, in the Symantec case, there's this, I think the language is byte protocol or something like that. [00:15:08] Speaker 01: And it was limited to machine instructions because the specification said the byte protocol is something that includes machine instructions and it distinguished prior art on that basis. [00:15:23] Speaker 01: Every single case they cite has that. [00:15:25] Speaker 01: They have never cited a case, because none exist, where you limit the claims to something when there's no statements in the specification that evidence a clear intent to limit it. [00:15:36] Speaker 01: It's just not there. [00:15:38] Speaker 01: We cited a lot of cases, the TomTom case, the InfoHold case, the Epos case, Thorner, Hillrom. [00:15:44] Speaker 01: They have no distinction for those cases. [00:15:46] Speaker 01: They tried to distinguish two of them, and they ignore the rest of them. [00:15:50] Speaker 01: All of these are cases. [00:15:51] Speaker 01: where the federal circuit has said it's not proper, unless you have that language in the spec or the prosecution history, where you're clearly evidencing this eval, it's not appropriate. [00:16:03] Speaker 01: I wanted to say just one word on doctrine of equivalence, if I may, before I get into my rebuttal time. [00:16:11] Speaker 01: And that is, we are very confident and believe that we're right about the claim construction, but even under the incorrect claim construction, [00:16:20] Speaker 01: We submitted a declaration, an expert report, by our expert. [00:16:24] Speaker 01: And it's at A2510211. [00:16:28] Speaker 01: You can take a look at it. [00:16:31] Speaker 01: But it's not perfunctory. [00:16:34] Speaker 01: He went through the function, the way, and the result. [00:16:38] Speaker 01: And he did the right analysis. [00:16:39] Speaker 01: He said, what's the difference between a system where you define physical space based on where the sensor is, [00:16:45] Speaker 01: versus a defined physical space in the real world that you then put a sensor in. [00:16:49] Speaker 01: That's the comparison. [00:16:51] Speaker 01: And he said it's the same function. [00:16:52] Speaker 01: It's the same result. [00:16:53] Speaker 01: And he says what those are. [00:16:54] Speaker 01: He says the way is slightly different because you have to translate the coordinates into a different system. [00:16:59] Speaker 01: But it has no effect on any of the invention. [00:17:02] Speaker 01: A jury should have the right to hear that and to make its own decision about whether or not that's the same or not. [00:17:07] Speaker 01: So that's all I wanted to say here. [00:17:08] Speaker 01: And I'll save the rest of my time for rebuttal. [00:17:10] Speaker 02: OK. [00:17:10] Speaker 02: You've exhausted your time. [00:17:11] Speaker 02: We will save you rebuttal time. [00:17:13] Speaker 01: Thank you very much. [00:17:14] Speaker 01: Appreciate it. [00:17:21] Speaker 00: I want to start with a reset as to what the dispute is as to the scope of this claim term. [00:17:31] Speaker 00: At the district court, very clearly at the claim construction stage and again at the summary judgment stage and at the objections to the summary judgment stage, the dispute was very clearly whether or not you can have a defined physical space that is simply [00:17:50] Speaker 00: relative to and dependent on the sensor or whether we must have a truly defined physical space independent of the sensor. [00:18:00] Speaker 00: That was the core question as to claim scope that was decided at claim construction, again at summary judgment, and again at the objections to summary judgment stage. [00:18:08] Speaker 00: This question of the temporal limitation and the sort of suggestion that, well, whether it's before or after you start the game play, that is a question that came for the first time on appeal [00:18:20] Speaker 00: And I think really is a distraction from the fundamental question that was before the district court. [00:18:25] Speaker 02: Well, let's assume the question is before us. [00:18:28] Speaker 02: After all, until we have the district court's judgment, we didn't know, perhaps, that that was the question that needs to be attacked. [00:18:36] Speaker 00: Well, I'm not sure that's true, Your Honor, because I think it was quite clear at the claim construction stage and the summary judgment stage that was the question. [00:18:43] Speaker 00: But in any event, that question, the real question, is whether it can be censor dependent [00:18:48] Speaker 00: or it needs to be a defined physical space that's independent of the sensor. [00:18:54] Speaker 00: And I want to start with the claim language, because there's been a lot of focus on the specification, and rightly so. [00:19:00] Speaker 00: But the claim language, of course, should be the starting place. [00:19:03] Speaker 00: And the problem with the construction that's now being promoted by impulse is that it would read out from the claim the concept of the defined physical space. [00:19:13] Speaker 00: So if you look at the first limitation of claim one of the 565 patent on A164. [00:19:20] Speaker 02: But they say the portions of column nine does make these broad statements. [00:19:25] Speaker 02: As you know, the claims and the breadth of the specification, the claims often are entitled to no more than a more narrow construction. [00:19:36] Speaker 02: But your friend says not in this case. [00:19:39] Speaker 00: You're right, Your Honor. [00:19:40] Speaker 00: So I think what I heard my friend saying [00:19:42] Speaker 00: is first that they believe that the claim language is incredibly broad, defined physical space is incredibly broad, and that if you look to the spec, there's nothing in the specification that narrows that. [00:19:53] Speaker 00: I would actually encourage the court to look at the claim language to figure out what defined physical space means in the context of the claim and in the context of the specification. [00:20:03] Speaker 00: And there, if they were correct, [00:20:05] Speaker 00: that a defined physical space could be simply defined in relation to the sensor, you would not need the words in a defined physical space in claim one. [00:20:14] Speaker 00: It simply reads that concept out. [00:20:17] Speaker 00: What they are arguing is, well, of course, any time you play a game with the sensor, you're in a physical space. [00:20:23] Speaker 00: You're either going to be indoors, you're going to be outdoors, you're always in a physical space. [00:20:27] Speaker 00: That's certainly true. [00:20:28] Speaker 00: That, of course, makes the limitation meaningless. [00:20:32] Speaker 00: If you look at what the claim limitation says, it says that you're tracking the overall physical limitation of a player. [00:20:39] Speaker 00: So it's the physical location of a player in a defined physical space. [00:20:44] Speaker 00: That limitation needs to have meaning. [00:20:46] Speaker 00: And what that claim tells you is that that meaning, then when you go to the next step, is to allow that location and movement of the player in the defined physical space to then be correlated [00:21:01] Speaker 00: to the location and movement of the person in the virtual space. [00:21:06] Speaker 00: And that's the whole point of this invention. [00:21:08] Speaker 00: This was back in 1997. [00:21:10] Speaker 00: The Kinect was not a glimmer in anyone's eye. [00:21:12] Speaker 00: What Mr. French was purporting to invent was you have a football field, a basketball court, a tennis court. [00:21:21] Speaker 00: And he wanted to create a system in which you could have fidelity of movement so that you could put someone through training exercises [00:21:29] Speaker 00: and allow them to run drills and get better. [00:21:32] Speaker 00: And what the specification makes very clear is to have that fidelity of movement so that you can have an accurate training system as described and as claimed. [00:21:42] Speaker 00: You define the physical space so you know its size, you know its boundaries, and you know within what context the person is moving in physical space. [00:21:51] Speaker 00: And then you use that position and movement to translate to a virtual world, to the virtual space. [00:21:57] Speaker 00: so that they can then have the training exercise. [00:22:01] Speaker 00: And Mr. Rosenthal was very focused on one sentence in column nine. [00:22:05] Speaker 00: And to be sure, that's an important sentence. [00:22:07] Speaker 00: But I actually think you have to look at the whole specification of the patent. [00:22:11] Speaker 00: And what the whole specification of the patent makes very clear, right from the outset, right from the field of the invention throughout, is that the point of the invention is to track and determine player position [00:22:26] Speaker 00: during movement in a defined physical space. [00:22:29] Speaker 00: That's a column one. [00:22:30] Speaker 00: And it goes on to say that you put this person through skills training based on time and distance traveled in the defined physical space. [00:22:40] Speaker 00: At column eight, the patent goes on to explain, and this is a column eight line around 22 where it talks about the tracking and display system. [00:22:49] Speaker 00: It goes on again to talk about how the purpose of this is to put a player through agility skills [00:22:55] Speaker 00: where you're looking at them in the three-dimensionally defined physical space in which the player moves. [00:23:00] Speaker 00: And again and again, throughout column 8, again, throughout column 9 through 10, it's about the physical space in which the player moves so that you can track them in that space and then correlate their movement to the virtual space to put them through the drill. [00:23:13] Speaker 02: And column 9 says, by the way, this isn't so strictly limited. [00:23:17] Speaker 00: I actually don't read column nine that way, Your Honor. [00:23:20] Speaker 00: So when I read column nine, what column nine's, and I think you have to read all of column nine. [00:23:25] Speaker 00: Column nine, line eight, which Mr. Rosenthal read from, said, a defined physical space may be any available indoor or outdoor, any available area, indoors or outdoors, of sufficient size to allow the player to undertake the movements for assessing the quantifying distance and time measurements relative to the player's conditioning, sports, and ability. [00:23:46] Speaker 00: And then he skipped down a couple of lines and omitted a sentence, which I think is important. [00:23:51] Speaker 00: The sentence he omitted says, a typical physical space may be an indoor facility, such as a basketball or handball court, where about a 20 by 20 area with a 10-foot ceiling clearance can be dedicated for the training and testing. [00:24:05] Speaker 00: And then it will be appreciated that the system may be adaptable to physical spaces of various sizes. [00:24:10] Speaker 02: He says that's the preferred embodiment, or that the claim shouldn't be limited to the preferred embodiment. [00:24:15] Speaker 00: That's what he says, Your Honor, but it's the only embodiment. [00:24:18] Speaker 00: And what I was listening for, and I've been listening for it from the claim construction hearing at the district court, in the summary judgment context in the district court, and throughout the appeal briefing and again today, was something, anything that they might be able to point to in the specification that would suggest that the defined physical space can be a non-physical abstract space [00:24:42] Speaker 00: that's defined only in relation to the sensor. [00:24:45] Speaker 00: They have not been able to point to anything close to that because there is no disclosure of that whatsoever. [00:24:51] Speaker 00: The only thing that the patent discloses quite clearly is that you have to have a defined physical space that's independent of the sensor. [00:24:59] Speaker 00: Then you set up the sensor, track the person in that physical space, and then allow their movement to be correlated to the virtual space. [00:25:08] Speaker 00: And I think an example might be helpful here. [00:25:10] Speaker 00: Let's take, for example, a tennis court. [00:25:13] Speaker 00: If you're on a tennis court, you set out the test court, everyone knows what the boundaries are, you know where the net is. [00:25:19] Speaker 00: According to column nine and to the specification, what you would do, once you have your tennis court, you know what the defined physical space is. [00:25:27] Speaker 00: It's a defined physical space that exists in the real world, independent of the sensor. [00:25:32] Speaker 00: You can set up a sensing system, allow the person to move within that physical space. [00:25:38] Speaker 00: and then track them and put them through drills. [00:25:42] Speaker 00: What that system would allow you to do is know, for example, when the player is approaching the net. [00:25:48] Speaker 00: Know when the player has stepped out of bounds to his left, to the right, to the side. [00:25:53] Speaker 00: In Mr. Rosenthal's view of the world, you wouldn't have a defined physical space in which the player moves. [00:26:00] Speaker 00: Instead, what you would have is simply a sensor [00:26:02] Speaker 00: And any time the person stands within the sensor, they're in this defined physical space. [00:26:08] Speaker 00: What they are trying to do is collapse the sensor with the defined physical space, which is an independent concept. [00:26:15] Speaker 00: And I do also point, Your Honors, to a portion of column 10 that Mr. Roosevelt didn't point to in this discussion. [00:26:22] Speaker 00: And that is the patent itself distinguishes the concept of the defined physical space [00:26:30] Speaker 00: from the sensor area or the tracking volume. [00:26:33] Speaker 00: And that's a column 10, line 29 through 34. [00:26:37] Speaker 00: In that sentence, and to be sure, it does say in a particular embodiment, but my point here is in that context, when the patent is talking about the defined physical space, it uses the words defined physical space as it does throughout the specification and the claims. [00:26:54] Speaker 00: But when it's talking about the sensor area, [00:26:57] Speaker 00: It uses a different term for that tracking volume. [00:27:00] Speaker 00: That's a different concept. [00:27:02] Speaker 00: They are now attempting to take defined physical space out of the claims and instead substitute it with this concept of tracking volume. [00:27:11] Speaker 00: And that's inconsistent with the specification. [00:27:13] Speaker 00: It's inconsistent with the goals of the patent. [00:27:16] Speaker 00: And fundamentally, it's inconsistent with the claims. [00:27:20] Speaker 00: Because if you did that, you just wouldn't need to say tracking the physical location in a defined physical space. [00:27:26] Speaker 00: That limitation has to have meaning. [00:27:29] Speaker 00: And the district court correctly found, after looking at not just one sentence in column 9, but if you look at the district court's opinion, it thoroughly analyzed column 8, column 9, and column 10. [00:27:40] Speaker 00: It correctly found that in that context, what the defined physical space is is a space that's a physical space that's defined independent of the sensor and not simply a subset of the tracking volume of the sensor. [00:27:55] Speaker 00: There's one other point I'd like to respond to, which is the legal framework within which we're operating. [00:28:02] Speaker 00: There's been a suggestion by Mr. Rosenthal that the only way in which somebody can depart from the plain and ordinary meaning of the claim is if there's an explicit disavowal or a disclaimer. [00:28:13] Speaker 00: And I think the problem with that proposition is it is completely a field from the facts of this particular case. [00:28:20] Speaker 00: I understand why Mr. Rosenthal would like for that to be the law and why he would like for that to apply here. [00:28:25] Speaker 00: It doesn't apply here for two reasons. [00:28:28] Speaker 00: First, there is no plain and ordinary meaning of this term. [00:28:32] Speaker 00: No one has proposed a plain and ordinary meaning of defined physical space. [00:28:37] Speaker 00: That was not their construction below. [00:28:39] Speaker 00: It's not their construction now. [00:28:41] Speaker 00: So the idea that we should start with some generalized plain and ordinary meaning and then look for a disclaimer is inapplicable here. [00:28:48] Speaker 00: The second reason it doesn't work, of course, is that the plain and ordinary meaning has to be looked at in the context of the patent. [00:28:56] Speaker 00: Both sides agreed at the district court that the specification was the best evidence on the meaning of the defined physical space. [00:29:02] Speaker 00: That was the evidence both sides pointed the district court judge to. [00:29:06] Speaker 00: He looked at that evidence. [00:29:07] Speaker 00: He looked at columns 8, 9, 10, the whole patent altogether and found that the meaning of the term, while it might not be plain from just the words defined physical space, [00:29:17] Speaker 00: in the context of the patent is plain and is that it has to be a space that is physical and that is defined and not simply dependent on the censor. [00:29:27] Speaker 00: So for those two reasons, I think all of that argument is a little bit orthogonal to the issue before the court. [00:29:33] Speaker 00: And of course, I also think in view of semantics and in Phillips, which is of course this court's en banc ruling, the suggestion that you have to have a clear disavowal is itself, I think, not a correct statement of law. [00:29:45] Speaker 00: But I don't think you need to get there in this case because we're not dealing with a situation where an expert said this is the plain meaning and somehow the district court departed from that. [00:29:56] Speaker 00: That is not this case. [00:29:58] Speaker 00: There was no expert evidence of plain meaning. [00:30:00] Speaker 00: There was no suggestion from impulse as to what the plain meaning was. [00:30:04] Speaker 00: Both parties correctly pointed the district court to the specification for guidance on what the claim term means and the district court correctly [00:30:13] Speaker 00: analyzed the entirety of the specification and the claim language and made a determination that it simply can't be this concept of what the district called a relational space. [00:30:25] Speaker 00: A physical space is a physical space. [00:30:28] Speaker 00: It has to be a defined physical space. [00:30:30] Speaker 00: A relational or abstract space that is only in the context of and dependent on the censor cannot constitute a defined physical space within the context of this patent. [00:30:42] Speaker 00: Unless Your Honors have any further questions, I will see the rest of my time. [00:30:47] Speaker 00: OK. [00:30:48] Speaker 02: Good. [00:30:48] Speaker 02: Thank you, Elizabeth. [00:30:51] Speaker 02: Thanks for your three minutes rebuttal. [00:30:56] Speaker 01: Thank you, Your Honor. [00:30:58] Speaker 01: I have five very quick points that I might not be able to get through them all. [00:31:02] Speaker 01: But let me see if I can. [00:31:04] Speaker 01: First, I didn't understand. [00:31:08] Speaker 01: my friend's first point that this wasn't raised below. [00:31:11] Speaker 01: On A-72, it's the court's recommendation on claim construction. [00:31:16] Speaker 01: It specifically says, define physical space means a space that is known prior to the adaptation of the testing and training system. [00:31:24] Speaker 01: That is the issue. [00:31:25] Speaker 01: It's a temporal issue. [00:31:27] Speaker 01: Second, she talked about the claims. [00:31:30] Speaker 01: The claims would be meaningless under our construction. [00:31:32] Speaker 01: Absolutely not true. [00:31:34] Speaker 01: I loved her description of what the claims [00:31:37] Speaker 01: are all about. [00:31:38] Speaker 01: It's absolutely right. [00:31:39] Speaker 01: You have to have a defined space. [00:31:41] Speaker 01: It has to have boundaries. [00:31:44] Speaker 01: That's what makes it a defined physical space, because you need to be able to know if you're near the edge of the space. [00:31:52] Speaker 01: I want the avatar to be near the edge of the virtual space. [00:31:55] Speaker 01: If you don't have boundaries, you can't tell where to put the avatar. [00:31:59] Speaker 01: If I'm just looking and saying, I'm just looking for movement in my field of view, that doesn't work. [00:32:06] Speaker 01: We absolutely agree that you have to have a definition. [00:32:09] Speaker 01: And the definition of that space has to happen before you start playing the game. [00:32:13] Speaker 01: Absolutely. [00:32:14] Speaker 01: But not before you even put the sensor up in and turn the machine on. [00:32:17] Speaker 01: And notably, there was not a single word about why it's important to have somehow a space defined before you put a sensor in. [00:32:28] Speaker 01: Third, I didn't hear a single case cited where the court has limited [00:32:36] Speaker 01: a term to the specification without words that say this is important to my invention or this is how I'm defining my term. [00:32:44] Speaker 01: She cited Symantec and Phillips. [00:32:46] Speaker 01: Those cases don't apply. [00:32:47] Speaker 01: Symantec, there were specific words that the court relied on saying, this is important to my invention to talk about the machine code. [00:32:57] Speaker 01: Column 9, this is my fourth point. [00:32:59] Speaker 01: She talked about the sentence that I did not address, which was the typical physical spaces include a basketball court, a football field, things like that. [00:33:08] Speaker 01: It's important to look at exactly what is said there. [00:33:11] Speaker 01: It says, a typical physical space may be an indoor facility such as a basketball or handball court where about a 20 by 20 by 10 space can be dedicated. [00:33:24] Speaker 01: So what it's saying is bring your sensor to a basketball court with enough space [00:33:29] Speaker 01: that you can play the game with it. [00:33:31] Speaker 01: There's nothing in there that says, but before you put the sensor in there, you have to mark out exactly where that 20 by 20 space is, and then put the camera there, and then align everything correctly. [00:33:40] Speaker 01: It's not in there. [00:33:41] Speaker 01: So that doesn't help at all, the argument. [00:33:44] Speaker 01: And the preferred embodiment, she said, there aren't any other preferred embodiments. [00:33:47] Speaker 01: It says right at the bottom of column nine, 52. [00:33:52] Speaker 01: Another suitable tracking system is this. [00:33:55] Speaker 01: 54. [00:33:56] Speaker 01: Many other suitable tracking systems may be substituted, including X, Y, and Z. Column 10, line 18. [00:34:04] Speaker 01: It will be appreciated further that one or more cameras or other image capturing devices can be used. [00:34:08] Speaker 01: There are literally almost 10 different preferred embodiments described for the tracking system. [00:34:15] Speaker 01: There's lots. [00:34:15] Speaker 01: And she's drawing from one of them. [00:34:18] Speaker 01: And the district court, more importantly, drew from one of them. [00:34:20] Speaker 01: And that's not appropriate. [00:34:22] Speaker 01: Okay. [00:34:23] Speaker 02: One final statement we need to wrap up. [00:34:25] Speaker 01: Okay. [00:34:25] Speaker 01: The last point is we are not trying to equate the tracking volume with the physical space. [00:34:30] Speaker 01: The defined physical space has to be its own concept. [00:34:34] Speaker 01: It's not just whatever I can see. [00:34:36] Speaker 01: But it doesn't have to be defined before I put the sensor in place. [00:34:40] Speaker 01: That's the point. [00:34:42] Speaker 01: Unless you have any further questions. [00:34:43] Speaker 02: Okay. [00:34:43] Speaker 02: Any more questions? [00:34:44] Speaker 02: Thank you very much. [00:34:45] Speaker 02: Okay. [00:34:45] Speaker 02: Thank you. [00:34:46] Speaker 02: Thank you both for the