[00:00:42] Speaker 02:
Our next case this morning is number 16-1360, Intellectual Ventures versus Motorola Mobility.

[00:00:51] Speaker 02:
Mr. King.

[00:01:02] Speaker 01:
Good morning, Your Honors.

[00:01:03] Speaker 01:
This appeals about two reversible errors in the board's claim construction.

[00:01:07] Speaker 01:
The first error is that despite clear disclaimer,

[00:01:10] Speaker 01:
The board failed to limit the transmitting step to push transmission.

[00:01:14] Speaker 01:
The second error is that the board construed the phrase without user interaction to cover with user interaction.

[00:01:21] Speaker 01:
Both errors result in a reversal.

[00:01:25] Speaker 01:
Focusing on the first error, excuse me, computer to computer communications include either push transmission or pull transmission.

[00:01:33] Speaker 01:
The distinction between the two is well known in the art and depends on which computer initiates the transaction.

[00:01:40] Speaker 01:
or the transmission.

[00:01:41] Speaker 01:
A push transmission means that the first computer initiates the transmission of a message by sending it to the second computer.

[00:01:48] Speaker 01:
A physical analog of this is when I send you a letter.

[00:01:51] Speaker 01:
I push the letter to you when I put it in the mail.

[00:01:55] Speaker 01:
Bridget, can I have you get JA3762?

[00:02:00] Speaker 01:
We have here the definition from Motorola's own expert, Dr. Alexander, on page JA3762.

[00:02:09] Speaker 01:
question, what is your understanding of the term push?

[00:02:13] Speaker 01:
Well, in the 90s, in the mid-90s, one of ordinary skill in the art understood push to mean that the content messages could be delivered to your computer, your client computer without either the client computer itself or the user of the client computer requesting that information.

[00:02:28] Speaker 01:
It was fairly well understood concept.

[00:02:31] Speaker 01:
I do not believe the definition of push transmission or pull transmission, which we're going to talk about in a moment, is disputed.

[00:02:37] Speaker 01:
A pull transmission, on the other hand,

[00:02:39] Speaker 01:
The terms that are used in the claims, right?

[00:02:44] Speaker 01:
The reference I'm... So if we look at the file history... The answer is yes, right?

[00:02:48] Speaker 01:
They're not used in the claims.

[00:02:50] Speaker 01:
Push transmission is not used in the claims.

[00:02:52] Speaker 01:
That's correct.

[00:02:54] Speaker 02:
This is a... I believe it's a disclaimer.

[00:02:56] Speaker 02:
And there were embodiments in the specification that included pull transmission, right?

[00:03:02] Speaker 01:
Both embodiments in the specification include push and pull embodiments.

[00:03:07] Speaker 01:
If we turn to, I can show you where that's at in the specification.

[00:03:10] Speaker 01:
I know where it is.

[00:03:11] Speaker 01:
Thank you.

[00:03:12] Speaker 01:
If we turn, Brigitte, can I have you please hand me the JA specification?

[00:03:29] Speaker 01:
I'm on JA051.

[00:03:33] Speaker 01:
I'm on column four, lines 46.

[00:03:38] Speaker 01:
Figure 3.

[00:03:39] Speaker 01:
Figure 3 is one of the embodiments.

[00:03:42] Speaker 01:
Classical email is a push technology.

[00:03:44] Speaker 01:
Email pushes technology.

[00:03:47] Speaker 01:
I am on column 4, starting with line 46.

[00:03:53] Speaker 01:
Figure 3, which is one of the embodiments, illustrates how classical electronic email has run over an intermittent connection, 303, to a machine 304.

[00:04:04] Speaker 01:
is not continuously connected to the internet.

[00:04:06] Speaker 01:
This type of system may be used protocols.

[00:04:09] Speaker 01:
Also, we see here that Figure 2 as well uses standard classical email protocols.

[00:04:19] Speaker 01:
They all start with a push.

[00:04:20] Speaker 02:
So your contention is that even though the specification included pull embodiments, those embodiments were disclaimed in the prosecution history?

[00:04:33] Speaker 02:
Yes.

[00:04:33] Speaker 02:
No?

[00:04:36] Speaker 02:
You've got to answer the question.

[00:04:37] Speaker 02:
Yes or no?

[00:04:38] Speaker 02:
Or maybe?

[00:04:39] Speaker 02:
No.

[00:04:40] Speaker 01:
Maybe might be the answer.

[00:04:41] Speaker 01:
The only embodiments have start with a push and end with a pull, just like the claims.

[00:04:47] Speaker 01:
Claims, we argue, start with a push, pushing the message to the second computer and end with a pull, the second computer automatically retrieving the message for the user without user interaction.

[00:05:02] Speaker 01:
Pushes the automatic is the sending.

[00:05:04] Speaker 01:
The pull is the retrieval.

[00:05:07] Speaker 02:
Are you now saying that the specification doesn't disclose pull embodiments?

[00:05:13] Speaker 02:
Not just pull embodiments by themselves.

[00:05:15] Speaker 01:
What do you mean by themselves?

[00:05:18] Speaker 01:
Well, in the background, the specification talks about pull-only embodiments.

[00:05:22] Speaker 01:
Pull-only would be an internet browser.

[00:05:25] Speaker 01:
When you browse the internet, you type in the URL and you pull or retrieve the information to yourself.

[00:05:30] Speaker 01:
So the background of the specification does talk about pull-only systems.

[00:05:35] Speaker 01:
But the specification, the detailed description talks about systems that combine push email or push technology with pull systems.

[00:05:46] Speaker 01:
So you have a push-pull.

[00:05:47] Speaker 03:
It could be that a system has both a push and pull functionality.

[00:05:51] Speaker 03:
But those are really exclusive, aren't they?

[00:05:53] Speaker 03:
I mean, push and pull don't have the same meaning.

[00:05:58] Speaker 01:
Push and pull are very distinct.

[00:06:00] Speaker 01:
That's right.

[00:06:00] Speaker 01:
Push means the first computer initiates the transaction.

[00:06:03] Speaker 01:
Pull means the second computer initiates the transaction by retrieval.

[00:06:07] Speaker 01:
In the prior art, the two were very distinct.

[00:06:09] Speaker 01:
This invention combines the two together.

[00:06:12] Speaker 01:
And the disclaimer that is of particular importance... But combines them in what way?

[00:06:17] Speaker 03:
They're still distinct.

[00:06:19] Speaker 01:
They're still distinct.

[00:06:20] Speaker 01:
There's just two different steps in the claims.

[00:06:22] Speaker 01:
There's the transmitting step.

[00:06:23] Speaker 01:
That's the pushing.

[00:06:25] Speaker 01:
Then there's the decoding step.

[00:06:27] Speaker 03:
Combines the functionality, but not the...

[00:06:30] Speaker 03:
It combines perhaps that now you have a system that both pushes and pulls.

[00:06:37] Speaker 03:
That doesn't mean that they're the same.

[00:06:40] Speaker 03:
The distinction that existed in the prior art still exists.

[00:06:43] Speaker 03:
That's right.

[00:06:44] Speaker 03:
That is correct.

[00:06:46] Speaker 01:
So let's turn to the file history statement.

[00:06:49] Speaker 01:
It's on JA795.

[00:06:52] Speaker 01:
She's getting that.

[00:06:53] Speaker 01:
Three times in the file history, the applicant made a statement that limited the present invention.

[00:06:59] Speaker 01:
The applicant stated, and there's two distinctions.

[00:07:03] Speaker 01:
The applicant stated, the present invention, one, pushes information to the user.

[00:07:10] Speaker 01:
And two, the content of that information or additional information is automatically retrieved for the user without user interaction.

[00:07:24] Speaker 01:
So we argue that two separate disclaimers were made.

[00:07:27] Speaker 02:
Well, in terms of the amendment, you only amended a part of the claim relating to decoding to say that it was automatic without user interaction, right?

[00:07:39] Speaker 02:
You didn't amend the transmitting step to say that.

[00:07:43] Speaker 01:
That is correct.

[00:07:46] Speaker 01:
There are multiple claims.

[00:07:48] Speaker 01:
Claim 39, for instance, was not amended at all.

[00:07:52] Speaker 01:
Claim 39 talks about the transmitting.

[00:07:55] Speaker 01:
It's all about transmitting after the comprising.

[00:07:58] Speaker 01:
It talks about the computer receives and then it's all about the transmitting.

[00:08:01] Speaker 01:
It wasn't amended at all.

[00:08:03] Speaker 01:
Claim 21, which is one of the representative claims, wasn't amended at all.

[00:08:10] Speaker 01:
It didn't add automatic.

[00:08:11] Speaker 01:
It didn't add without user interaction.

[00:08:13] Speaker 01:
Yet all these claims were allowed after these three file history statements were made.

[00:08:20] Speaker 01:
If we look at the express language and the grammar to understand what this statement meant.

[00:08:27] Speaker 01:
The statement was, the present invention, one, pushes information to the user, and two, the content of that information is automatically retrieved.

[00:08:36] Speaker 01:
Motorola would like to lump the two distinctions together and say that they both apply to the decoding step.

[00:08:42] Speaker 01:
This is incorrect.

[00:08:43] Speaker 01:
It's not consistent with the express claim language.

[00:08:46] Speaker 01:
It's not consistent with the grammar of the statement.

[00:08:49] Speaker 01:
If we look at the express claim language, the decoding step states that the message is decoded by retrieving data.

[00:09:02] Speaker 01:
Retrieval of data is a pull transmission.

[00:09:05] Speaker 01:
One can't read the push distinction into that retrieval.

[00:09:11] Speaker 01:
It would be inconsistent to say a retrieving step pushes information to the user.

[00:09:19] Speaker 01:
It would not be consistent with the express claim language of the decoding step.

[00:09:25] Speaker 01:
The only step in the claims whose express claim language is consistent with pushing data to the user is the claimed transmitting step, which states that... But you didn't amend the transmitting step.

[00:09:38] Speaker 02:
You did not.

[00:09:39] Speaker 02:
Even under your language where you say that

[00:09:42] Speaker 02:
This is on page 795 of the appendix.

[00:09:45] Speaker 02:
You say, pushes information to the user and the content of that information or additional information is automatically retrieved for the user without user interaction.

[00:09:55] Speaker 02:
You say that was a disclaimer, but you didn't include it in the transmitting step of the claim, unlike the decoding step.

[00:10:03] Speaker 02:
So why shouldn't we think that you're referring to the decoding step throughout here when that's the only amendment that was made to the claim?

[00:10:13] Speaker 01:
There was an amendment.

[00:10:15] Speaker 01:
There's certainly case law that shows that a disclaimer can include in addition to an amendment.

[00:10:20] Speaker 01:
I don't think you're addressing my question.

[00:10:22] Speaker 01:
I'm sorry.

[00:10:24] Speaker 02:
Could you repeat?

[00:10:25] Speaker 02:
I read you this language here, and this automatically, without user interaction, this language that you say creates a disclaimer was only added to the decoding step of the claim.

[00:10:41] Speaker 02:
It wasn't added

[00:10:43] Speaker 02:
to the transmitting step of the claim.

[00:10:45] Speaker 02:
Doesn't that suggest that we should construe this language as referring to the decoding step and not the transmitting step?

[00:10:55] Speaker 01:
No, I don't believe so.

[00:10:57] Speaker 01:
I think that there was certainly an amendment made to some of the claims, not to all of them.

[00:11:05] Speaker 01:
The amendment is important, and it was a distinction.

[00:11:07] Speaker 01:
But there is a separate prosecution disclaimer, a second distinction

[00:11:13] Speaker 01:
The first distinction says here that the distinction of pushing information to the user with respect to the transmitting step did separately distinguish the references.

[00:11:30] Speaker 02:
But I don't think you're answering my question.

[00:11:32] Speaker 02:
Since this language was added to the decoding step, if the language was meant to apply to the transmitting step, why wasn't the same language

[00:11:41] Speaker 02:
added as a claim amendment to the transmitting step.

[00:11:47] Speaker 01:
I think it was not added to the transmitting step.

[00:11:50] Speaker 01:
The pushing of information to the user, that wasn't added to the decoding step either.

[00:11:55] Speaker 01:
The pushing information to the user, mind you there's two distinctions combined with an and.

[00:12:01] Speaker 02:
The same language that you're relying on in the prosecution history was added to the decoding

[00:12:07] Speaker 02:
automatically without user interaction, but it was not added to the transmitting step.

[00:12:15] Speaker 01:
No, because we believe that the second part of the statement, automatically retrieving without user interaction, was added to the decoding step, and it relates to the decoding step.

[00:12:29] Speaker 01:
There's no disagreement between the parties that the second distinction of that sentence relates to the decoding step.

[00:12:37] Speaker 01:
We're arguing that the first distinction, which was not added to the claims, not added anywhere in the claims, serves as a separate prosecution disclaimer that disclaims the art that was cited and was of record.

[00:12:53] Speaker 01:
And we believe it applies to the transmitting step because of the expressed claim language of the claims.

[00:12:58] Speaker 01:
It doesn't make sense if it applies to the decoding step.

[00:13:01] Speaker 01:
You can't push with a retrieval.

[00:13:03] Speaker 01:
Second, the grammar.

[00:13:05] Speaker 01:
of the, let's look at the grammar of the actual statement.

[00:13:08] Speaker 01:
It says the present invention pushes information to the user and the content of that information, that that information is referring to information that's been pushed.

[00:13:18] Speaker 01:
It's that information that's automatically decoded.

[00:13:21] Speaker 01:
The pushing has to occur prior to the decoding, has to occur prior to that claim amendment you're referring to.

[00:13:28] Speaker 01:
It wouldn't make grammatically sense if it didn't.

[00:13:33] Speaker 04:
Would it be fair to say that every transmitting step is a pushing step?

[00:13:39] Speaker 01:
That is correct.

[00:13:41] Speaker 01:
That is our convention.

[00:13:42] Speaker 01:
You could read the claim as transmitting by pushing with the first computer to the second location, or you could read it as push transmitting.

[00:13:51] Speaker 04:
So the focus had to be on the second step.

[00:13:54] Speaker 04:
I'm sorry?

[00:13:54] Speaker 04:
The focus had to be on the second step, the second computer.

[00:14:00] Speaker 01:
Well, there's focus on both steps.

[00:14:02] Speaker 01:
There's focus on both steps in the specification and the file history.

[00:14:07] Speaker 01:
The statement refers to both steps.

[00:14:10] Speaker 01:
The first part is to the pushing, which is the transmitting.

[00:14:13] Speaker 01:
The second portion is to the decoding with the automatic retrieval.

[00:14:20] Speaker 02:
Right, you're into your rebuttal time, Mr. King.

[00:14:22] Speaker 02:
Want to save it?

[00:14:29] Speaker 00:
Yes.

[00:14:29] Speaker 00:
Mr. Conrad?

[00:14:33] Speaker 00:
Good morning, and may it please the court.

[00:14:37] Speaker 00:
The board's construction is correct.

[00:14:39] Speaker 00:
When the claim language says transmitting by the first computer, it simply means that the first computer performs a transmission.

[00:14:48] Speaker 00:
There is no exclusion of responsive transmissions of any kind.

[00:14:53] Speaker 00:
In fact, the intrinsic evidence barely discusses the transmitting step.

[00:14:58] Speaker 00:
And when it does, it confirms that the ordinary meaning applies and that

[00:15:03] Speaker 00:
conventional transmitting techniques are used.

[00:15:06] Speaker 00:
The only transmitting system that is named in the specification is the Post Office Protocol Version 3 system.

[00:15:14] Speaker 00:
The POP 3 system is a request and response system.

[00:15:19] Speaker 00:
It involves a request to retrieve messages.

[00:15:23] Speaker 00:
At other points in the specification, it notes a different configuration that allows the message to be fetched.

[00:15:32] Speaker 00:
That's at J53 in column 7.

[00:15:36] Speaker 00:
The specification goes on to describe various uses of the alleged invention that include things like customer orders, complaints, questions and comments, all circumstances and contexts in which you would expect to have a request for information followed by a response.

[00:15:55] Speaker 00:
Now, we pointed out this discrepancy in the specification in our brief.

[00:15:59] Speaker 00:
The board relied on that discrepancy and pointed it out, but Ivy hasn't mentioned it or explained it at all, including in their reply brief.

[00:16:09] Speaker 00:
Now, it's important to note this because it wouldn't make any sense for the specification to then to disclaim all of the uses that it then goes on to describe as being part of the transmitting step and part of the invention.

[00:16:24] Speaker 00:
The prosecution history says even less about the transmitting step.

[00:16:29] Speaker 00:
All of the arguments and all of the amendments in the prosecution history were about the decoding step.

[00:16:35] Speaker 00:
The examiner rejected the claims.

[00:16:38] Speaker 00:
The applicant responded with an amendment that included the automatic retrieval language in the decoding step.

[00:16:45] Speaker 00:
Based on that amendment, and after making that amendment, the applicant then went on to make remarks and arguments expressly distinguishing the prior art on the basis of that amended decoding step language.

[00:16:58] Speaker 03:
How do you respond to your opponent's argument the way I understood it that the amendment to the decoding step also applies to the transmitting step?

[00:17:09] Speaker 00:
Well, we disagree with that, Your Honor, because there's no mention of the transmitting step at all in the amendment or in the argument that followed the amendment.

[00:17:18] Speaker 00:
The transmitting step is never mentioned at all.

[00:17:20] Speaker 00:
The phrase that I believe IV points to is a phrase that says the present invention pushes information to the user.

[00:17:28] Speaker 00:
That's in the middle of a sentence that is talking about the amendment to the decoding step.

[00:17:33] Speaker 00:
In context, that is what is being discussed.

[00:17:36] Speaker 00:
Now, Ivy has argued that it's nonsensical to use the word push to refer to a retrieval.

[00:17:43] Speaker 00:
That's what they argue in their reply brief, and that's what they've argued here before the court today.

[00:17:49] Speaker 00:
But that's not what Ivy said in its patent owner response.

[00:17:53] Speaker 00:
In its patent owner response, and this is at JA 326,

[00:17:57] Speaker 00:
IV said this, the claimed configurations push data to a user without necessarily sending the data itself directly to the user.

[00:18:08] Speaker 00:
That's talking about the retrieval step.

[00:18:11] Speaker 00:
That is talking about the information that is not sent by the sending computer, but is retrieved by the receiving computer when it automatically dereferences a URL.

[00:18:23] Speaker 00:
And it goes to the URL and gets the additional information and presents it to the user.

[00:18:27] Speaker 00:
That characterization of the retrieval step is what IV itself called a push.

[00:18:34] Speaker 00:
So at a minimum that shows that our interpretation of the prosecution history when it uses the word push, it's perfectly reasonable to read that to be discussing the decoding step and the retrieval step.

[00:18:47] Speaker 00:
And of course it makes even more sense because it comes in the context of an argument being made about an amendment to the decoding step where the transmitting step was never mentioned

[00:18:58] Speaker 00:
at all.

[00:18:59] Speaker 00:
And this makes sense as well as a matter of common sense, too, because the invention here is about the user experience.

[00:19:07] Speaker 00:
It's about what the user perceives.

[00:19:09] Speaker 00:
The user does not have to go out and manually get additional information.

[00:19:14] Speaker 00:
It automatically comes to the user.

[00:19:17] Speaker 00:
And from the user's perspective, it's fair to call that a push.

[00:19:21] Speaker 00:
But it's talking about the retrieval in the decoding step.

[00:19:28] Speaker 03:
One other thing that I would point out here is that... So in the POP system, and you go into, let's say, Access Your Email, then that's a retrieval?

[00:19:40] Speaker 00:
That is, and there is undisputed evidence... Do you see that as a pull?

[00:19:43] Speaker 00:
I'm sorry.

[00:19:44] Speaker 03:
Do you see that as a pull?

[00:19:46] Speaker 00:
That is characterized as a pull communication, because it's a pull system that retrieves information, retrieves messages.

[00:19:56] Speaker 00:
I would also point out, too, that there's a lot of flexibility here in how these terms have been used by IV and how these terms are used just generally.

[00:20:04] Speaker 00:
At JA608, in the hearing transcript, IV noted that there may be some communications that involve a pull, but it said that those are better characterized as a push.

[00:20:20] Speaker 00:
Well, it's a difficult line to draw.

[00:20:22] Speaker 00:
At a minimum, that shows there's a great deal of gray area involved in what is a push and what is a pull and how that may be characterized.

[00:20:30] Speaker 00:
And, of course, these words are not in the claims.

[00:20:33] Speaker 00:
Push and pull are not in the claims.

[00:20:34] Speaker 00:
They're also not in the proposed construction that Ivy offers.

[00:20:39] Speaker 00:
Ivy's construction is based on the first computer's discretion.

[00:20:45] Speaker 00:
And that in and of itself raises a great deal of ambiguity and cause for concern because that language comes from the examiner's reasons for allowance, which as a matter of law cannot be a disclaimer.

[00:20:58] Speaker 00:
And the other thing about that is that no one knows what the examiner meant when the examiner used the word discretion.

[00:21:05] Speaker 00:
Again, before the board, Ivy's counsel said, I'm not sure why the examiner used the word and I don't know exactly what it meant.

[00:21:15] Speaker 00:
That's it, JA 609 and 610.

[00:21:16] Speaker 00:
That's the opposite of a clear and unambiguous disclaimer.

[00:21:22] Speaker 00:
Ivy's position has changed over time, too, in characterizing what it actually means by its construction and what it means by the term discretion.

[00:21:32] Speaker 00:
As best we could understand what Ivy was saying in the briefing below and what Ivy said in its opening brief before this court was that the claims, because of the disclaimer, should exclude

[00:21:43] Speaker 00:
responses to a user request.

[00:21:46] Speaker 00:
In the reply brief, however, Ivy said that we had made that up.

[00:21:49] Speaker 00:
This is page six of the reply brief.

[00:21:52] Speaker 00:
And there is no support for Motorola Mobility's assertion that the inventor disclaimed manual systems.

[00:21:59] Speaker 00:
Well, we didn't make it up.

[00:22:00] Speaker 00:
That came straight from Ivy's opening brief.

[00:22:03] Speaker 00:
In the opening brief, Ivy characterized the disclaimer as a disclaimer of, quote, human intervention.

[00:22:10] Speaker 00:
That's at page 29 of the brief.

[00:22:13] Speaker 00:
and they repeatedly argued that the claims excluded a response to a user request or systems in which a user merely manually pulls information.

[00:22:24] Speaker 00:
You can see that at pages six, 28, 31 of the opening brief and really throughout the opening brief.

[00:22:30] Speaker 00:
Now we tried to take IB's characterization of its own construction at face value, but to the extent that their position is changing on that and they're taking some new position as to what the disclaimer means, that again,

[00:22:42] Speaker 00:
just goes to confirm that there is no clear and unambiguous disclaimer here.

[00:22:47] Speaker 00:
Another point that I would make is that to construe the claims in the way that IV has proposed would also violate a number of other canons of construction.

[00:22:57] Speaker 00:
It would read out the only embodiments and potential uses for the invention that are described in the specification.

[00:23:04] Speaker 00:
So it would violate that canon of construction.

[00:23:06] Speaker 00:
It would mean that the term by has different meaning in the same claim.

[00:23:12] Speaker 00:
it would be used inconsistently throughout the same claim language, which is a candidate of construction.

[00:23:18] Speaker 00:
And of course, as I mentioned, it would elevate the examiner's statement, the examiner's reasons for allowance, to be a disclaimer, which this court has never held before.

[00:23:27] Speaker 00:
One other point that I would make is that counsel pointed to

[00:23:38] Speaker 00:
our expert's testimony for the proposition that push and pull have well-known meanings.

[00:23:43] Speaker 00:
I would just point the court very briefly to pages 3790 and 3791 where our expert explained that, in fact, the discussion of push in the specification is fragmentary and doesn't line up with the embodiments.

[00:23:59] Speaker 00:
And then he goes on to conclude that a request-response mechanism would certainly satisfy the claims

[00:24:05] Speaker 00:
if it had all the other limitations covered.

[00:24:07] Speaker 00:
So the expert's conclusion was that in context and in the context of the specification and of the prosecution history, again, responsive transmissions are fully covered by the claims.

[00:24:20] Speaker 00:
Now, if the board affirms based on the board's construction of transmitting, then it should also affirm at least as to the putz reference because Ivy had made no other arguments with respect to that reference.

[00:24:32] Speaker 00:
And that would be sufficient to affirm the judgment.

[00:24:35] Speaker 00:
There was a second issue about pain that was not addressed in the reply brief or addressed on oral argument.

[00:24:41] Speaker 00:
We're content to stand on the briefs with respect to that issue.

[00:24:46] Speaker 00:
If the court has no further questions.

[00:24:49] Speaker 00:
Okay.

[00:24:49] Speaker 00:
Thank you, Mr. Conron.

[00:24:58] Speaker 01:
Just to address a few remaining issues.

[00:25:00] Speaker 01:
I think one question is,

[00:25:02] Speaker 01:
Does the embodiments in the specification support our interpretation of push that the transmitting step requires pushing?

[00:25:12] Speaker 01:
Every embodiment in the detailed description has push technology.

[00:25:18] Speaker 01:
It talks about combining email with like POP3 or email with other retrieval systems and I cite on column seven, lines 15 through 18.

[00:25:30] Speaker 01:
The present invention satisfies the need of merging electronic communications such as electronic mail and multimedia internet browsers.

[00:25:39] Speaker 01:
With respect to the ordinary meaning of buy, this is not an ordinary meaning case.

[00:25:43] Speaker 01:
This is a disclaimer case.

[00:25:45] Speaker 01:
It doesn't matter what the ordinary meaning of buy is, as has been argued.

[00:25:51] Speaker 01:
And then with respect to the examiner's reasons for allowance, the examiner's reasons for allowance did use his own words.

[00:25:57] Speaker 01:
He said at the discretion.

[00:26:00] Speaker 01:
There's quite a bit of emphasis on what the examiner said, but under this court's precedent, it doesn't matter what the examiner said.

[00:26:07] Speaker 01:
In fact, the examiner didn't have to say anything.

[00:26:09] Speaker 01:
There would still be prosecution disclaimer just with the applicant's statements.

[00:26:13] Speaker 01:
Nonetheless, we do believe the applicant's statements are consistent with push transmission.

[00:26:22] Speaker 02:
Okay.

[00:26:22] Speaker 02:
Thank you, Mr. King.

[00:26:23] Speaker 01:
I thank both counsel.