[00:00:11] Speaker 01:
The next case for argument is 16-1128, Intellectual Ventures v. Erie Indemnity Company.

[00:00:37] Speaker 01:
Is everyone settled?

[00:00:38] Speaker 01:
Yes, ma'am.

[00:00:39] Speaker 01:
Okay, Mr. Hurt, whenever you're ready.

[00:00:41] Speaker 05:
Welcome back to Los Angeles.

[00:00:43] Speaker 03:
Thank you, Your Honor.

[00:00:45] Speaker 03:
Good afternoon, and may it please the Court.

[00:00:48] Speaker 03:
My name is Christian Hurt, and I'm here this morning with my colleague, Derek Gilliland, on behalf of Intellectual Adventures in this case against Erie and Old Republic.

[00:00:57] Speaker 03:
I'd like to start with the 002 patent since there was some discussion with the panel about that patent.

[00:01:02] Speaker 03:
in the Capital One case.

[00:01:04] Speaker 01:
Actually, can we start though, because each case is taken separately, so I'm on this case and the standing issue on the 5-8-1.

[00:01:12] Speaker 01:
Yes, Your Honor.

[00:01:13] Speaker 01:
So talk to me about that issue.

[00:01:17] Speaker 03:
For that issue, all of the evidence in the record points to Intellectual Ventures owning the 5-8-1 patent.

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All of the contemporaneous evidence points that way, right after the All Advantage All Set transaction

[00:01:32] Speaker 03:
Allset filed that assignment as part of the assignment record in the patent office.

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The patent issued in Allset's name.

[00:01:41] Speaker 01:
Yeah, but I find it a little odd that when we're talking about an assignment and we've got a document, I don't want to start with all of the extrinsic evidence with regard to that document.

[00:01:50] Speaker 01:
Why don't we start with the document?

[00:01:52] Speaker 03:
Yes, Your Honor.

[00:01:53] Speaker 03:
The reason I start with the extrinsic evidence is under California law, the court accepts that extrinsic evidence provisionally to determine

[00:02:00] Speaker 03:
if a position on the actual contract.

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You need to convince us that the assignment to Allset in January 2002 included a patent application that was not identified in that assignment.

[00:02:15] Speaker 03:
It is not included in the list.

[00:02:18] Speaker 02:
It's nowhere in here identified.

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So why would the parties not identify it and still believe that it was assigned?

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Most, the non-identification shows that the language is ambiguous.

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And the reason for that is that the 581 patent is a child application of the 983.

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And it's not just a continuation.

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These patents are effectively the same patent as a result of a terminal disclaimer that was filed right after the Allset transaction.

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So the patent office rejected

[00:02:57] Speaker 02:
The 581... Has there ever been a case that said a continuation patent is essentially the same patent as the parent patent?

[00:03:04] Speaker 03:
There are a number of cases, including the General Protect case and other site in our briefs, that the continuation, a continuation, a pure continuation... That's implied license, right?

[00:03:13] Speaker 02:
That's correct.

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That's not an assignment case.

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That is correct.

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There is not an assignment case I could find that held that a continuation patent

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and the parent patent are the same.

[00:03:28] Speaker 02:
Now, the NPEP treats them... And implied licenses, that's an equitable doctrine, right?

[00:03:33] Speaker 03:
Well, I think whether it's... Well, the issue on implied license is the reason the court grants the implied license, whether equitable or factual, is because the licensed parent and the continuation are bound to the same inventive subject matter, such that it doesn't make sense for parties to split title

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in a licensed transaction and give someone the rights to the parent.

[00:03:57] Speaker 05:
But you're not... Yes, Your Honor?

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You misspeak yourself when you say equitable or factual means equitable or legal.

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Oh, my apologies.

[00:04:07] Speaker 03:
That's correct.

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Whether it's an equitable defense that gets tried to the court or ultimately a factual defense that would have a jury right, the underlying rationale is that the subject matter of the parent to the continuation are to the same inventive subject matter.

[00:04:21] Speaker 05:
But the underlying law is totally different.

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One is contract law, the other is the law of equity.

[00:04:27] Speaker 03:
Well, the law of equity provides the defense.

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In our case, we're talking about the transfer of a license is the underlying issue in the flight license issue.

[00:04:43] Speaker 05:
And determining the meaning of a contractual transfer under California law is a question of law, not of equity.

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That is correct.

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The purpose of this transaction was to transfer all of the assets that AllAdvantage had essentially purchased from a predecessor company, a few transactions down called Aveo.

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So a gentleman by the name of Paul Hurley, he had a patent portfolio.

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He then sold it to a company called Sherwood.

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And then All Advantage bought that portfolio from Sherwood, and then Paul Hurley came around and tried to buy his patents back.

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That was the point of the deal.

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And it all happened within one year.

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There's no extrinsic evidence that it was the intent of the parties to make this patent an orphan.

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So no one has ever asserted, despite Allset being the assignee on the face of it.

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What about the fact that the prior assignment to All Advantage specifically said all of these identified patents, as well as any

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continuations, et cetera.

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The Sherwood tall advantage agreement?

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Right.

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So the Sherwood tall advantage agreement.

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Parties know how to include everything under the sun that might be a patent or patent application possessed by the assigner.

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And that type of language was not used in the critical assignment we're looking at now.

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And isn't it California law that when something is let out,

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that it's presumed to be the intent of the parties that they did so.

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Well, I'm not sure on that point of California law, but here the Sherwood All Advantage Agreement just had the All Advantage side and the Sherwood side.

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There's nothing about the intent of the transaction back to Mr. Hurley.

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So Mr. Hurley wasn't on the Sherwood side of that transaction.

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He was on the offset side of the subsequent transaction.

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Mr. Hurley was at a company earlier called Aveo.

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There's no intent here to actually exclude that patent.

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And the district court's result creates an orphan patent in this instance.

[00:06:54] Speaker 01:
Okay.

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I put you onto this trail and now I'm going to try to get you off because the clock is running.

[00:06:59] Speaker 01:
So why don't you go back to either the 02 patent or the 434 patent on the 101 issue.

[00:07:05] Speaker 03:
Sure.

[00:07:05] Speaker 03:
So I'll start with the 02 patent very briefly since it was addressed in the prior argument.

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So this mobile interface is not, as counsel for Capital One mentioned, an abstract idea that just tacks on an interface.

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It's not an interface for a mobile device.

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It's actually an interface that moves.

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And there are two features that make it inventive.

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One is that it moves to each of the devices, so the laptop, computer, the PDF.

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And then while pointers were known in the art, this is an improved use of those pointers.

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So in the background of the patent,

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there's a discussion of the start menu, and the Windows start menu used pointers, but those were limited to that particular machine.

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And this new mobile interface that moves around has an improved use of pointers, which is what the PTAB actually concluded in denying CBM review on this patent.

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And so this doesn't claim just the need or any solution to dynamically accessing information.

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So it doesn't claim something like

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like web-based access or something like Gmail, where I can log into my Gmail on my PC using Google Chrome, and I can also log into it on my Mac using Safari.

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In that instance, there is a mobile interface that actually moves between the two systems.

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So I think under BASCOM, where an inventive aspect can be found in sort of a novel arrangement, this certainly clears that test.

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And like BASCOM, we're at the Rule 12 stage, where the only evidence in the record

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is the patent itself and the mobile interface is actually the invention.

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15 of the claims are to the mobile interface itself.

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And so if that mobile interface, that is the invention.

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This isn't anonymous loan shopping on a computer with an interface, delivering content to a specific region and doing it on a screen.

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The interface itself is an invention.

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So the invention is not how the interface retrieves information from wherever it may be located.

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The invention is the fact that the interface is mobile.

[00:09:07] Speaker 02:
Well, it's two pieces.

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And also that the mobile interface uses pointers.

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The use of pointers is how it retrieves the information.

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So it points to a location of the user-specific resources on a server.

[00:09:22] Speaker 02:
And tell me again why that's inventive?

[00:09:24] Speaker 03:
The reason it's inventive is if you look in the background of the patent, the use of pointers in the background are in the Windows Start menu.

[00:09:31] Speaker 03:
that are limited to that specific computer.

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And the Patent Office, as I mentioned in concluding that this invention was a technological innovation, called this use of pointers an inventive use of pointers.

[00:09:43] Speaker 03:
And Old Republic, who's one of the defendants in our case, filed that petition.

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And I think if the Patent Office concluded that they hadn't met their burden to show that that problem, that that solution was not a technical solution, and the Patent Office also concluded that Old Republic hadn't shown

[00:10:01] Speaker 03:
that accessing electronic information across devices was not a technical problem, on a Rule 12 record where 282 applies, we survived that motion.

[00:10:12] Speaker 03:
And so, Your Honor, there's already been a finding by the Patent Office that use of pointers, while pointers are conventional, this is an improved use.

[00:10:23] Speaker 01:
Is that IPR?

[00:10:24] Speaker 01:
Well, it never became a CBM proceeding.

[00:10:26] Speaker 01:
Right.

[00:10:27] Speaker 01:
In connection with which litigation?

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Was their litigation staked while the IPR proceeding was going on, or what connection was that?

[00:10:35] Speaker 01:
To which case?

[00:10:36] Speaker 03:
Sure.

[00:10:37] Speaker 03:
So in this suit, my client sued Old Republic.

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They filed a CBN petition, and it got denied.

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They filed another bunch of IPR petitions, but we never moved in this litigation.

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They filed, both defendants filed a Rule 12-6, I'm sorry, 12-B-6 motion at the outset

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There was no discovery.

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They never answered.

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We never got moving.

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We had a hearing.

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The judge granted the motion and now we're here today.

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So there was never anything to stay is the answer I guess to that question.

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Unless the court has any more questions about the OO2 patent, I'll move on to the 434 patent.

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This patent claims a new database architecture like the Enfish case.

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In particular,

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computers in the prior had problems giving back search results and this patent claims an indexed metafile tag architecture including having indexed components in the records to improve how that database returns searches.

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In the prior art there were issues about getting too much information, information spread out.

[00:11:47] Speaker 02:
What about last week's intellectual ventures opinion that came out?

[00:11:50] Speaker 02:
Where there was the 050 patent?

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where that claimed invention was about the use of identifiers to search through emails or something like that.

[00:12:03] Speaker 02:
And then this court held that the concept of using identifiers to search through emails was an ineligible abstract idea.

[00:12:13] Speaker 02:
And now here, your claims are the use of XML tags to search through records in a database.

[00:12:20] Speaker 02:
What's the difference?

[00:12:21] Speaker 03:
So it's not just the use of XML to search through records in a database.

[00:12:26] Speaker 03:
And that patent that your honor mentioned is directed to just the idea of filtering email.

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Whereas here, we're talking about prior art databases had problems with their structures similar to relational databases in Enfish.

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And that this patent has a particular solution by using an index, metafile, and tag approach.

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So it's not just the idea of filtering information.

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but it's actually organizing that database in a way that enables it to be searched more efficiently.

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And I don't think that was an issue in the intellectual ventures case from last week.

[00:13:02] Speaker 01:
Okay, why don't we, you're into your rebuttal time, so why don't we reserve that.

[00:13:05] Speaker 01:
That's okay.

[00:13:07] Speaker 01:
Thank you.

[00:13:15] Speaker 01:
All right, you're splitting your time here.

[00:13:17] Speaker 01:
I understand that.

[00:13:18] Speaker 01:
You've notified the court.

[00:13:19] Speaker 01:
But at the beginning of when your clock, we're going to run the clock separately.

[00:13:23] Speaker 01:
And at the beginning, can you just remind us what issues you're going to deal with so we'll know where to direct our questions?

[00:13:28] Speaker 00:
Yes, and thank you, Your Honor.

[00:13:29] Speaker 00:
I will be addressing the ownership issue and the 101 issue for the 434 patent.

[00:13:38] Speaker 00:
May it please the court?

[00:13:41] Speaker 00:
I'm Greg Lanterre on behalf of the Erie Appellees in this case.

[00:13:46] Speaker 00:
The 2002 All Advantage assignment specifically lists each patent and application that it transfers.

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That list does not include the 581 patent application, which was pending at the time of that conveyance.

[00:14:01] Speaker 00:
And there are no other words in the document that convey additional patent rights.

[00:14:07] Speaker 00:
For example, there's no statement that the inventions described in the transferred patents are also being transferred.

[00:14:13] Speaker 02:
Do you agree with the other side that under California law, we do have to look at some extrinsic evidence in order to satisfy ourselves over whether there's an ambiguity in the contract?

[00:14:25] Speaker 00:
I disagree, Your Honor.

[00:14:26] Speaker 00:
California law does treat extrinsic evidence a little bit differently than most states.

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But the way that California law treats it, and this is described in this court's decision in AMD versus Altera, is if there is a particular term in the contract

[00:14:42] Speaker 00:
that is reasonably susceptible to different interpretations.

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Under California law, parole evidence could be admitted, not only to determine the meaning of that term, but actually to determine whether that term is ambiguous.

[00:14:55] Speaker 00:
And that's the way that California law uses parole evidence in a way that... So I don't understand, why shouldn't we here rely on parole evidence

[00:15:04] Speaker 01:
We sort of rather than, we can't, are you saying we can't determine to ourselves that this is unambiguous on its face?

[00:15:11] Speaker 01:
We have to look at the parole evidence to make a determination about ambiguity.

[00:15:14] Speaker 01:
That's what your friend is arguing.

[00:15:15] Speaker 01:
No, Your Honor, that's not what I'm saying.

[00:15:17] Speaker 05:
The California law requires some kind of facial ambiguity, does it not?

[00:15:22] Speaker 00:
It does, exactly, Your Honor, and that's precisely what the AMD case says.

[00:15:25] Speaker 00:
But I think under California law there's a little bit more liberality if there's a potential facial ambiguity in admitting parole evidence.

[00:15:32] Speaker 05:
But it has to be a potential facial ambiguity.

[00:15:35] Speaker 00:
It has to be reasonably susceptible to the interpretation that's being put forth.

[00:15:40] Speaker 00:
And in this case... Did you cite the AMD case?

[00:15:44] Speaker 00:
Your Honor, I believe we did not cite that case.

[00:15:47] Speaker 00:
I'm sorry, once I heard the question.

[00:15:50] Speaker 00:
It's an unpublished decision, Your Honor, from 1999, and the citation is 217 F3D 849.

[00:15:59] Speaker 02:
It's unpublished, you said?

[00:16:01] Speaker 00:
It is unpublished, Your Honor.

[00:16:03] Speaker 00:
I'm citing it just for the recitation of the California state law.

[00:16:08] Speaker 01:
But that's the end of the California law.

[00:16:09] Speaker 00:
That is the end of the California law, Your Honor.

[00:16:12] Speaker 01:
But you cited an F3D site, so how can it be unpublished?

[00:16:16] Speaker 00:
It's the way that I think West

[00:16:19] Speaker 00:
Your Honor does assign f-third sites to cases even when they're just in the table of additional cases.

[00:16:25] Speaker 05:
Sure there must be California state cases on this.

[00:16:29] Speaker 05:
Isn't that right?

[00:16:29] Speaker 00:
Yes, Your Honor, there are.

[00:16:31] Speaker 00:
And as you said, it is standard California law.

[00:16:34] Speaker 00:
A California state case on this point would be Wida Associates v. Murner at 42

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Cal App 4th, 1702, also at 50, Cal Reporter, 2nd edition, 323, which is a 1996 decision.

[00:16:55] Speaker 04:
423?

[00:16:58] Speaker 04:
I believe I said... AVTR 2nd, 423?

[00:17:01] Speaker 00:
I'm just making... 323, your honor.

[00:17:03] Speaker 00:
323, okay.

[00:17:04] Speaker 00:
Yes, your honor.

[00:17:06] Speaker 00:
In this case, there are no words that are reasonably susceptible to that meaning.

[00:17:11] Speaker 00:
And let's make one thing very clear here.

[00:17:13] Speaker 00:
This is not a contract reformation case.

[00:17:16] Speaker 00:
Intellectual Ventures has never argued for reformation, and that would be the doctrine that would allow the court to rewrite an agreement to include provisions that aren't in the actual text.

[00:17:28] Speaker 00:
It requires, however, clear and convincing evidence of each party's intent and clear and convincing evidence that there was an actual mistake.

[00:17:36] Speaker 00:
There's no record here on that point.

[00:17:37] Speaker 00:
In fact, there's no record at all on all advantages intent at the time of the agreement.

[00:17:42] Speaker 00:
and we're now 15 years after that agreement was executed.

[00:17:46] Speaker 01:
Why don't you move on to the 434?

[00:17:48] Speaker 00:
Yes, Your Honor.

[00:17:50] Speaker 00:
The 434 patent has nothing to do with a technological improvement to databases or to computers.

[00:17:58] Speaker 02:
I guess the other side is saying the 434 is just like Enfish in the sense that the use of XML tags and metafiles necessarily requires the

[00:18:10] Speaker 02:
database, record database to be organized in a particular way and that by organizing in a particular way it creates certain efficiencies.

[00:18:19] Speaker 00:
From the perspective of Section 101, Your Honor, this case is the opposite of ENFISH.

[00:18:25] Speaker 00:
In ENFISH, the patent described and the claims were directed to a new type of database, what was called a self-referential database that was different from a relational database and the patent described

[00:18:39] Speaker 00:
that there were advantages in storing data in this new data structure.

[00:18:44] Speaker 00:
The invention had nothing to do with how the user was creating the database, how it was entering database records.

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It had everything to do with how the data structure itself was composed.

[00:18:56] Speaker 00:
The 434 patent is exactly the opposite.

[00:18:59] Speaker 00:
What the 434 patent describes is a purportedly new methodology for organizing records in a database so that they're indexed and they can be searched.

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in what the 434 pattern describes as an advantageous way.

[00:19:13] Speaker 00:
What happens is the user is directed at the time that the database records are being entered to have a human being assign what are called tags, so descriptors of that particular record that might be useful later, and write those in some claims in a particular computing language, XML, and in other claims it's not specified.

[00:19:36] Speaker 00:
In addition,

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The user is then to create what they call metafiles, and those metafiles are associations between tags that a searcher might find useful.

[00:19:46] Speaker 00:
So for example, one set of metafiles would group tags that describe related products so that if later somebody searches for one product and you are trying to cross-sell the other product, the database will refer records that deal with the other product at the same time.

[00:20:06] Speaker 00:
This is completely a business-oriented patent.

[00:20:09] Speaker 00:
And the patent, so it's step one of ALIS.

[00:20:12] Speaker 00:
It is clearly directed to the abstract idea, and the district court's stated abstract idea was exactly correct.

[00:20:18] Speaker 00:
It's directed to the creation of a database.

[00:20:21] Speaker 00:
Those are claims one through six and 25, I'm sorry, the creation of an index.

[00:20:25] Speaker 00:
Those are claims one through six and 25 and 26.

[00:20:29] Speaker 00:
And then searching that index, and that's the remainder of the claims.

[00:20:33] Speaker 00:
The human being is creating the index.

[00:20:35] Speaker 00:
The searches are being done, as stated in the patent, using any one of the available conventional databases.

[00:20:43] Speaker 00:
And so for that reason, at ALICE step two, there's a failure as well.

[00:20:48] Speaker 00:
The patent expressly states that XML is a standardized computing language that predated the patent.

[00:20:54] Speaker 00:
And other than the use of XML, Intellectual Ventures hasn't identified any other supposed technological advance that would be relevant at ALICE step two.

[00:21:04] Speaker 00:
Thank you.

[00:21:13] Speaker 06:
Good afternoon, Your Honors.

[00:21:14] Speaker 06:
My name is Vern Winters.

[00:21:15] Speaker 06:
I'm here for the Old Republic Defendants.

[00:21:18] Speaker 06:
I propose to take the Section 101 issues with respect to the 002 patent and the 581 patent.

[00:21:26] Speaker 06:
You've just heard argument with respect to the ownership of the 581 patent.

[00:21:29] Speaker 06:
If I can, I'd like to start with the patentability of that.

[00:21:33] Speaker 06:
This is a patent directed to what Your Honor referred to earlier as the classic gathering, manipulation, and reporting results regarding the manipulation of

[00:21:43] Speaker 06:
The patent describes systems, methods, and related claims of transmitting across a network a discovery rule.

[00:21:56] Speaker 06:
It's just an instruction.

[00:21:57] Speaker 06:
It's a sequence of code, according to the patent, to look at data that's been collected by a discovery agent, any collection of data.

[00:22:05] Speaker 06:
The discovery rule is then executed upon that collection of data.

[00:22:08] Speaker 06:
And according to the patent, that can be any comparison of data whatsoever.

[00:22:13] Speaker 06:
not limited in any manner, and then taking that executed discovery rule against the collection of data and just reporting the results back.

[00:22:22] Speaker 06:
And that's all this claim does.

[00:22:25] Speaker 06:
That is a classic, under this court's post-Dallas Section 101 law, classic not eligible claim.

[00:22:32] Speaker 06:
So, for example, if you look at content... Describe what first year associates do.

[00:22:41] Speaker 06:
I have a colleague here with me.

[00:22:42] Speaker 06:
I perhaps best not respond to that, Your Honor.

[00:22:45] Speaker 06:
But for example, in content extraction, even before the court's recent guide post that Your Honor referred to, if you look back at content extraction, these claims are like that claim.

[00:22:55] Speaker 06:
That claim dealt with digitizing hard copies.

[00:22:58] Speaker 06:
So you take a hard copy of a document, you digitize it.

[00:23:01] Speaker 06:
You then digitize specific fields within it.

[00:23:04] Speaker 06:
You extract some of those fields.

[00:23:07] Speaker 06:
And then instead of displaying it to a user, you take those digitized fields and you report it back or store it in memory.

[00:23:14] Speaker 06:
That is effectively what these claims do.

[00:23:16] Speaker 06:
And the court emphasized in content extraction, that is simply not an eligible idea.

[00:23:22] Speaker 06:
All of these claims are related.

[00:23:24] Speaker 06:
The court properly held them all to be ineligible.

[00:23:27] Speaker 06:
Unless the court has questions, I propose to move to the O02 patent.

[00:23:34] Speaker 06:
The court has heard

[00:23:35] Speaker 06:
about that patent this morning.

[00:23:38] Speaker 06:
I'd like to emphasize, if I could, only a limited number of facts.

[00:23:43] Speaker 06:
First is, with respect to the mobile interface, the specification, and I'm just going to read this.

[00:23:50] Speaker 06:
This is at appendix 111 at column four, lines 49 through 54.

[00:23:57] Speaker 06:
It describes a mobile interface purely by its function.

[00:24:01] Speaker 06:
It's basically an agent

[00:24:03] Speaker 06:
that allows users to access documents, files, programs, applications, URL bookmarks, IP addresses, telephone numbers, television channels, radio stations, and other menu items from any computer that is connected to a network.

[00:24:18] Speaker 06:
That is described functionally.

[00:24:21] Speaker 06:
It would be a good idea to be able to access these kinds of items.

[00:24:25] Speaker 06:
It doesn't show how to do that.

[00:24:27] Speaker 06:
For example, one could imagine a claim that addresses the interoperability problem.

[00:24:33] Speaker 06:
I'm on a Mac.

[00:24:34] Speaker 06:
I want to access files on a different kind of operating system.

[00:24:38] Speaker 06:
That's an interoperability is a challenge.

[00:24:40] Speaker 06:
One could imagine a claim that says, here's how you, with a mobile interface, here's how you solve that problem.

[00:24:47] Speaker 06:
Here are the algorithmic steps one needs to take.

[00:24:50] Speaker 06:
This claim doesn't do that.

[00:24:53] Speaker 06:
It just says, here's a mobile interface.

[00:24:55] Speaker 06:
It uses pointers.

[00:24:56] Speaker 06:
And there was some discussion earlier in the day about pointers

[00:25:01] Speaker 06:
Pointers again are described wholly functionally.

[00:25:03] Speaker 06:
If I could invite the court's attention to Appendix 114 at column 10, lines 8 through 11, this is from the patent again.

[00:25:12] Speaker 06:
A pointer is a link slash shortcut to an item such as a file, URL, IP address, telephone number, television channel, radio station, application, or service.

[00:25:24] Speaker 06:
So a pointer is just something that

[00:25:27] Speaker 06:
points to a resource, and that's very broadly defined.

[00:25:30] Speaker 06:
This is not a case where pointers are limited to a very specific technological context, such as one could say there's not a preemptive concern.

[00:25:38] Speaker 06:
This is just a point that goes to data, and that's very broadly defined.

[00:25:41] Speaker 06:
They don't claim to invent it.

[00:25:43] Speaker 06:
I think we heard in an earlier argument this morning the admission that they haven't claimed to invent it.

[00:25:48] Speaker 06:
So again, the OO2 patent is a

[00:25:52] Speaker 06:
is the kind of claim that this court has now repeatedly, starting in the first Capital One IV appeal, but now more recently in cases handed down as recently as last week, held to be, I think, what the court called a magic interface.

[00:26:03] Speaker 02:
I guess what they're saying is their interface is mobile, right?

[00:26:08] Speaker 02:
It's not just located in one place.

[00:26:10] Speaker 02:
And the pointers aren't just pointers that are pointing to something inside one computer system.

[00:26:15] Speaker 02:
These are pointers that go outside of that single computer system.

[00:26:19] Speaker 02:
Right.

[00:26:20] Speaker 02:
points of novelty in the claim that produced an inventive concept.

[00:26:25] Speaker 02:
What do you have to say about that?

[00:26:27] Speaker 06:
I would invoke the specification, Your Honor.

[00:26:30] Speaker 06:
If I could write the Court's attention to column, this is Appendix 110 in column 1.

[00:26:38] Speaker 06:
It's about lines 35 through 38.

[00:26:40] Speaker 06:
A pointer in this context, again, this is the background of the invention.

[00:26:45] Speaker 06:
A pointer in this context is a reference to a type of menu item that can be accessible on the computer, PDA, or server.

[00:26:53] Speaker 06:
So the pointer, Your Honor, according to the patent, was already performing the function that they now claim novel, reaching across a network to get to a server.

[00:27:03] Speaker 06:
So there's nothing inventive about that.

[00:27:05] Speaker 06:
And then with respect to the second part of Your Honor's question, that it's mobile instead of static, that's a function, that's an aspiration, that's a nice-to-have.

[00:27:15] Speaker 06:
I have an interface that is static.

[00:27:19] Speaker 06:
It would be a good idea for that to be mobile.

[00:27:22] Speaker 06:
Terrific.

[00:27:23] Speaker 06:
How does one do that?

[00:27:24] Speaker 06:
The claim doesn't say.

[00:27:25] Speaker 06:
It just says, this would be a good result to reach.

[00:27:29] Speaker 06:
This is a good goal to have.

[00:27:31] Speaker 06:
But the claim contains nothing about how to get there.

[00:27:37] Speaker 06:
And unless the court has questions, I would invite my colleague to be allowed to use the balance of my time.

[00:27:44] Speaker 01:
You've got a minute and a half.

[00:27:45] Speaker 01:
Okay.

[00:27:48] Speaker 00:
Thank you, Your Honor.

[00:27:49] Speaker 00:
Thank you.

[00:27:51] Speaker 01:
Thank you.

[00:27:53] Speaker 01:
Thank you.

[00:27:53] Speaker 01:
Thank you.

[00:27:55] Speaker 01:
Thank you.

[00:27:56] Speaker 01:
Mr. Hurt, you've got some time left.

[00:28:05] Speaker 03:
I'd like to start briefly on the contract construction issue under California law.

[00:28:14] Speaker 03:
The site for the AMD case and the evidence, 1999, U.S.

[00:28:24] Speaker 03:
APLEXIS 6272.

[00:28:27] Speaker 03:
And that case says the same thing, I believe, as the case we cited in our brief.

[00:28:31] Speaker 03:
It's a reported California decision.

[00:28:34] Speaker 03:
It's Wolf v. Superior Court, 8 California reporter, 3rd, 649.

[00:28:42] Speaker 03:
specifically at 655 and 656.

[00:28:45] Speaker 03:
And the law there under a case called PG&E is when the words or a contract are disputed.

[00:28:51] Speaker 03:
So when there's a dispute over the words and the words we dispute, we point it to the language in and to and the transfer of goodwill.

[00:28:59] Speaker 03:
The court then provisional.

[00:29:01] Speaker 05:
When you cite Wolf in your brief, you say if the contract is ambiguous.

[00:29:09] Speaker 03:
The evidence is

[00:29:10] Speaker 03:
provisionally, I believe, looked at to determine that, to determine if there is an ambiguity.

[00:29:16] Speaker 03:
And if there's a misstatement in the brief on that, I apologize, but the specific language is on 655 through 655.

[00:29:23] Speaker 05:
If the plain language of the assignment left room for doubt.

[00:29:28] Speaker 03:
That's correct, because we argued that the plain language for us... That's ambiguity.

[00:29:33] Speaker 05:
That's what we were discussing back and forth.

[00:29:37] Speaker 05:
If it doesn't leave room for doubt, it's unambiguous.

[00:29:41] Speaker 03:
That is correct.

[00:29:42] Speaker 03:
Our view is under the language alone that intellectual ventures is correct.

[00:29:48] Speaker 05:
But looking at the extrinsic evidence, which the court must do when there's a dispute under the Wolf case, and I believe the AMD case... You had a previous document which specifically makes an assignment with specific language, and you leave that language out of the subsequent document.

[00:30:08] Speaker 05:
How's that ambiguous?

[00:30:10] Speaker 03:
I believe it's ambiguous because there's no language excluding it.

[00:30:17] Speaker 02:
What's the language in the contract, in the assignment, that's your hook, that you believe renders that language reasonably susceptible to two different interpretations?

[00:30:28] Speaker 03:
Sure, Your Honor.

[00:30:29] Speaker 03:
So there's two grants.

[00:30:32] Speaker 03:
The list says, here is a list of patents and applications that all Advantage owns.

[00:30:39] Speaker 03:
And then there's a transfer of the title in and to said patents.

[00:30:44] Speaker 03:
It doesn't mention the patents and the applications.

[00:30:47] Speaker 03:
Both sides agree that that includes at least the applications in the list.

[00:30:52] Speaker 03:
We think it includes, in addition to that, the pure continuation of the 5A1 because it's effectively the same patent.

[00:31:01] Speaker 03:
The second part is there's a grant of goodwill of the business represented by said patents.

[00:31:08] Speaker 03:
and applications thereof, and in our view, the goodwill of the business has to include... Yes, Your Honor.

[00:31:15] Speaker 02:
It says, goodwill of the business symbolized by said patents and applications.

[00:31:22] Speaker 03:
Right.

[00:31:22] Speaker 02:
So when it says said patents and applications, the only logical understanding of that would be the patents that were actually identified in this assignment, right?

[00:31:33] Speaker 03:
Right, so the goodwill of the business represented by said patents and applications and the goodwill of the business includes the 581 patent application.

[00:31:43] Speaker 02:
That wasn't expressly identified in the contract.

[00:31:46] Speaker 03:
It's not by name and number.

[00:31:48] Speaker 02:
So if we disagree with your understanding of in and to and disagree with your understanding of goodwill, then that's the end of the matter.

[00:31:58] Speaker 03:
If those are the two points in the contract we point to, under the Wolf case, the court has to provisionally look at the extrinsic evidence to say, well, even under that extrinsic evidence is the language not reasonably susceptible, and if the court believes that it's not reasonably susceptible to our position, then yes, that's the end.

[00:32:16] Speaker 02:
Okay.

[00:32:17] Speaker 03:
Okay.

[00:32:18] Speaker 03:
Your time has expired.

[00:32:20] Speaker 03:
Okay.

[00:32:20] Speaker 03:
Unless the court has any further questions, thank you, Your Honor.

[00:32:23] Speaker 03:
Thank you.