[00:00:00] Speaker 04:
I entertainer versus food.

[00:00:10] Speaker 02:
Yeah, no worries.

[00:01:00] Speaker 04:
Mr. Thomas, whenever you're ready.

[00:01:06] Speaker 02:
Good morning, your honors, and may it please the court.

[00:01:09] Speaker 02:
It's the plain meaning of the claim language at issue here, claim one, that resolves this dispute, and that establishes that the PTAB got it wrong when it said that the Chen reference meets that claim language.

[00:01:22] Speaker 02:
Specifically, what I'm addressing is the first part of claim one, where it says, a link program,

[00:01:29] Speaker 02:
adapted to both interrupt streaming and access ancillary content.

[00:01:37] Speaker 02:
The board said that the definition of a link program, which we don't dispute, was a set of instructions that tells a computer what to do when a link is selected, a set of instructions.

[00:01:50] Speaker 02:
Program itself has no special meaning within the context of this patent.

[00:01:56] Speaker 02:
And if a computer programmer

[00:01:58] Speaker 02:
is told to go out and write a program that can perform functions A and B. That computer programmer would not believe that that program already exists, because there's a program over here that does function A, and there's another program over here that does function B. But that's exactly how the PTAB interpreted this language, saying A-link program adapted to both

[00:02:27] Speaker 02:
interrupt and access because it said that the Chen reference had a program for interrupting and it had a program for accessing.

[00:02:35] Speaker 00:
I have a question for you.

[00:02:37] Speaker 00:
In your brief on page 30 footnote 2 you say that a program could call on a subroutine in order to perform one of those two playing functions.

[00:02:48] Speaker 00:
How is that not then two separate sets of instructions?

[00:02:53] Speaker 02:
The subroutine

[00:02:55] Speaker 02:
It's been a long time, but when I used to write programs, and if I used to write programs that included a subroutine, that subroutine had to be present so that it could be called by the main program.

[00:03:05] Speaker 02:
So therefore, it was part of the program.

[00:03:07] Speaker 02:
In other words, if that subroutine didn't exist as part of the program, the program wouldn't perform its function.

[00:03:14] Speaker 02:
That subroutine may go to line 1027 and perform the subroutine that's down here.

[00:03:21] Speaker 02:
When you're finished, come back up to line 256 and continue in the program.

[00:03:26] Speaker 00:
So it's not as if it's a subroutine that's accessible to the program.

[00:03:35] Speaker 02:
Yes, your honor.

[00:03:38] Speaker 02:
And as I said, that's exactly what the PTAB has done here.

[00:03:42] Speaker 02:
They found a program that could do function A, a different program, a different set of instructions according to Dr. Bowe.

[00:03:49] Speaker 02:
which is Hulu's expert, a different set of instructions in the decoder and a different set of instructions in the hotlink.

[00:03:57] Speaker 02:
And they said, well, as long as both those functions are met, there exists a program that can do functions A and B. And as I said, if a supervisor went to a programmer and told that programmer, write a program according to this functional specification.

[00:04:12] Speaker 02:
And that functional specification had function A and function B.

[00:04:16] Speaker 02:
And that computer programmer went back to his supervisor and said, well, I already know of a program that does A, and I already know of a program that does B. My job is done.

[00:04:26] Speaker 02:
I don't think he'd get a very positive reaction from his supervisor at that point, because that's not a program.

[00:04:31] Speaker 03:
Do you think there's anything in the spec that describes what a link program is versus just simply what a link program does?

[00:04:40] Speaker 02:
Think in the context of, and we know, for example, your honor, when the PTAB denied the institution under 112 grounds in this CBM, this Covered Business Method application.

[00:04:52] Speaker 03:
Let me repeat my question.

[00:04:55] Speaker 03:
Do you think there's anything in the specification that describes what a linked program is as opposed to what a linked program does?

[00:05:04] Speaker 02:
Yes, I do, Your Honor, and I think it's not only in the specification, it's in the original claims as presented, because the written description requirement encompasses what is in the original claims as part of the specification.

[00:05:16] Speaker 02:
The claims are very specific about what this link program is going to do.

[00:05:22] Speaker 02:
And it's written into the claim.

[00:05:25] Speaker 04:
Maybe I'm misunderstanding.

[00:05:26] Speaker 04:
I think Judge Chen was asking if there's anything about what the LEAD program is, not what it does.

[00:05:32] Speaker 04:
And your answer seemed to be what it does.

[00:05:33] Speaker 02:
My answer, Your Honor, is that one of ordinary skill in the art, a programmer in this field, would understand how to create a program that could accomplish those two functions.

[00:05:42] Speaker 02:
There's nothing new or unique about the source code, about the language that he wants to program in,

[00:05:48] Speaker 02:
There was enough in the specification such that one of ordinary skill in the art could create and practice the invention when told what that program needs to do.

[00:05:59] Speaker 02:
Are you asking me, is there a source code that was attached?

[00:06:03] Speaker 02:
No, there's not.

[00:06:04] Speaker 02:
Are there flow charts in there?

[00:06:06] Speaker 02:
Yes.

[00:06:06] Speaker 02:
Is there an algorithm that's described in there that embodies this program?

[00:06:10] Speaker 02:
Yes.

[00:06:12] Speaker 02:
Is there a specific description of source code?

[00:06:15] Speaker 02:
No, there's not.

[00:06:16] Speaker 04:
What about the prosecution history?

[00:06:18] Speaker 02:
Prosecution history looked at simply the question of whether or not there was written description support for whether or not the link program was going to be transmitted or provided across the network.

[00:06:31] Speaker 02:
We can look at appendix page, I believe it's 339, where we explained how our expert, Dr. Lloyd, actually went ahead and looked at the program and described.

[00:06:46] Speaker 02:
what the specification was teaching.

[00:06:48] Speaker 02:
And he said, the specification teaches interface links.

[00:07:01] Speaker 02:
And I'm looking at the paragraph that starts moreover.

[00:07:05] Speaker 02:
Dr. Loy, our expert, explained, and then we quote from him, exactly what one of ordinary skill in the art would find when he looked into the specification.

[00:07:13] Speaker 02:
And what he said was,

[00:07:15] Speaker 02:
The person of ordinary skill in the art would understand there were interface links.

[00:07:19] Speaker 02:
There were elements of the interface link program.

[00:07:23] Speaker 02:
And an interface link program is another name for a link program.

[00:07:27] Speaker 00:
What about the sentence above the paragraph you're relying on, where it said the fact that the computer performs those two functions in the claim, when a user interacts with the interface link, necessarily requires that there is a link program instructing the computer to perform those functions.

[00:07:45] Speaker 00:
So this sentence doesn't in any way seem to emphasize that you need to have a particular structure.

[00:07:52] Speaker 00:
And instead, so long as it performs the two functions, there's a link program.

[00:07:57] Speaker 02:
Well, that ignores the language of the claim, Your Honor, respectfully, because the link program has to do both functions.

[00:08:04] Speaker 02:
And it's the link program that has to do both functions.

[00:08:06] Speaker 02:
This is not an instance where the claim was written where it says, a device having instructions capable of doing x or y. This is not a capability claim.

[00:08:16] Speaker 02:
This isn't one of those kinds of claims where we often see where there's a computer that's capable of doing something.

[00:08:21] Speaker 02:
And it doesn't really matter where the instructions are or whether they're part of a program.

[00:08:27] Speaker 02:
are part of multiple programs.

[00:08:28] Speaker 00:
But this is saying the very language, a link program, and saying that when a user, the fact that the computer performs the disclosed functions when a user interacts with an interface link necessarily requires that there is a link program instructing the computer.

[00:08:47] Speaker 02:
Yes, Your Honor.

[00:08:47] Speaker 02:
Well, there would have to be a link program, a set of instructions,

[00:08:51] Speaker 02:
that is performing.

[00:08:52] Speaker 02:
But I would suggest that the entirety of the specification and the prosecution history needs to be observed here, including the following paragraph, the one that I pointed your honors to.

[00:09:03] Speaker 02:
Because it's there that Dr. Loy explains what the relationship is between an interface link and an interface link program.

[00:09:11] Speaker 02:
The interface link is an element of the interface link program.

[00:09:15] Speaker 02:
It would make no sense

[00:09:17] Speaker 02:
to provide over a network another of the elements in this claim, only part of the program.

[00:09:24] Speaker 02:
So when you're providing the interface links, you're necessarily providing the link program.

[00:09:30] Speaker 02:
The interface links are elements of the interface link program.

[00:09:34] Speaker 02:
If I were going to provide a program and only provide half of the instruction set over a network,

[00:09:41] Speaker 02:
I wouldn't have a very happy recipient on the other end, because with only half of the instruction sets, or half of the elements of that instruction set, they wouldn't be able to perform what the claim requires.

[00:09:52] Speaker 03:
But if your 131 declarations and your response to the written description requirement described what's going on in that way, then maybe that's what we're forced to understand as to the meaning of the claim.

[00:10:09] Speaker 03:
that you're not necessarily sending over the pause function over the network along with the hyperlinks because the inventors declared in the declaration that they reduced the claimed invention of practice when with that embodiment they were able to send hyperlinks over the network for this service.

[00:10:34] Speaker 02:
And that those hyperlinks included, this was in the gap demo, those hyperlinks included what was necessary in order to perform the link program functions.

[00:10:45] Speaker 02:
That's what was said.

[00:10:46] Speaker 02:
There is no clear and unequivocal disclaimer here where anybody comes in here and says, my invention is sending separate programs across the internet to a recipient.

[00:11:00] Speaker 02:
This was all in the discussion of whether or not a link program was provided.

[00:11:04] Speaker 02:
The link program was defined as something in claim one that could have both functionalities, the access and the interrupt functions.

[00:11:13] Speaker 02:
It's stated expressly in the claim.

[00:11:15] Speaker 02:
And moving on to the rest of those two elements in the claim where we believe that PTAB got it wrong, that other element says that the interface program, or link program, is provided over the network.

[00:11:28] Speaker 02:
And it says that the link program is associated with a video stream.

[00:11:34] Speaker 02:
Now, what the PTAB said is, well, that doesn't mean that the entirety of the LINK program is transmitted over the network or is associated with the video stream.

[00:11:44] Speaker 02:
And I would suggest that that is also a misapplication of the plain, ordinary meaning of these claimed terms.

[00:11:50] Speaker 02:
And moreover, it's not logical and it doesn't make a lot of sense.

[00:11:54] Speaker 02:
Why am I providing only part of what functionality is required for the LINK program

[00:12:00] Speaker 02:
And I'm meeting the requirement that the link program, the one that has functions A and B, needs to be provided over the network.

[00:12:08] Speaker 02:
And I think it's important, too, Your Honor, because it begs a question.

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

[00:12:14] Speaker 02:
What's the difference between sending the two programmed, one that performed the access function, and the other that performed a function of interrupting?

[00:12:24] Speaker 02:
Where's the beef here?

[00:12:26] Speaker 02:
It's important to put oneself back in the time frame when this invention was created.

[00:12:30] Speaker 02:
And that's back in the late 1990s and the early 2000s, when Entertainer was a pioneer in delivering video on-demand streaming services, one of the very first.

[00:12:42] Speaker 02:
And they were rolling these services out and did so in 35 different cities around the country, cable networks.

[00:12:49] Speaker 02:
But they had to provide it to video players, media players, like Windows Media Player, that were not programmed and not built

[00:12:57] Speaker 02:
to be able to accept and read video on demand with what they call click through capability.

[00:13:03] Speaker 02:
That is the ability to interpret URL links, hot links, that are embedded in the video stream.

[00:13:10] Speaker 02:
So what they had to do is they had to make sure they could service their customers.

[00:13:14] Speaker 02:
And in doing so, they had to provide a link program along with the video that would allow those media players that their customers were using

[00:13:24] Speaker 02:
to both interrupt and access that ancillary content.

[00:13:28] Speaker 02:
And now that may sound like a simple step in hindsight, but back in the late 1990s and 2000s, when video on demand services were nascent, if even available, you were working with a Windows media player that wasn't built to do that.

[00:13:43] Speaker 03:
When it comes to the patent owner overcoming the written description rejection or antedating references into 131 declarations,

[00:13:53] Speaker 03:
Which statement in any of those statements in the prosecution history would you think is the best statement that clarifies that the inventors were telling the agency that when you send the link program over the network or when you associate the link program with video, you are not only sending over the access function, but you're also sending over the interrupt

[00:14:23] Speaker 02:
quoting, I will read the exact sentence from the prosecution history, and it's on appendix page 339, and it's at the bottom of the paragraph, starts more over Dr. Boyd, and it says, from this, it would be clear to a person of ordinary skill in the art that interface links are elements of the interface link program, that the interface link program is the same as the link program

[00:14:48] Speaker 02:
And that the LINK program is delivered to client software in the manner described in the 884 application.

[00:14:54] Speaker 02:
And that includes where there's a program that does both the interrupt and the access functions.

[00:15:01] Speaker 02:
This is a plain and ordinary meeting case, Your Honors.

[00:15:05] Speaker 02:
I would like to point out, because there's a recent case from this court cited in March of this year.

[00:15:10] Speaker 02:
It's Inrei Varma, BIVM.

[00:15:12] Speaker 02:
And in the Inrei Varma decision,

[00:15:14] Speaker 02:
The question was a computer program, and it was a computer program that recited a statistical analysis request corresponding to two or more selected investments.

[00:15:25] Speaker 02:
Two or more selected investments must be part of the statistical analysis.

[00:15:30] Speaker 02:
The PTAB found a piece of prior art that did a statistical analysis on one investment, not two or more.

[00:15:38] Speaker 02:
But the PTAB said, well, if you do that program twice,

[00:15:42] Speaker 02:
then you are doing a statistical analysis on two or more investments.

[00:15:47] Speaker 02:
And this court, and it's at 816 F 1352, said that was an improper reading of that claim element.

[00:15:57] Speaker 02:
Why?

[00:15:57] Speaker 02:
Because it said doing something once and then doing the same thing again is not the same thing as doing something at the same time simultaneously.

[00:16:08] Speaker 02:
And to borrow the analogy that this court issued in this in Ray Varma decision, if a dog owner has a dog that can both fetch and roll over, that's different than having one dog that can fetch and another dog that can roll over.

[00:16:22] Speaker 02:
It's not the same thing.

[00:16:23] Speaker 03:
You used your rebuttal, but before you go away, there was another patent involved between the parties, right?

[00:16:30] Speaker 02:
The 592 patent.

[00:16:31] Speaker 03:
Was there a CBM on that as well?

[00:16:33] Speaker 02:
Yes, there is a CPM on the 592 path, Your Honor.

[00:16:36] Speaker 03:
What's the status of that?

[00:16:38] Speaker 02:
I believe that has recently been issued a rejection by the PTAB.

[00:16:43] Speaker 02:
And we're looking at what our options are.

[00:16:46] Speaker 02:
And it's the same basis.

[00:16:48] Speaker 02:
So I suspect we'll be back up here.

[00:16:50] Speaker 02:
I think that whatever's decided here might very well have an impact on that case, Your Honor.

[00:16:55] Speaker 02:
But that's not.

[00:16:59] Speaker 02:
It's been decided adverse to entertainment.

[00:17:02] Speaker 04:
Thank you.

[00:17:03] Speaker 04:
We'll restore two minutes for rebuttal.

[00:17:20] Speaker 01:
Good morning.

[00:17:21] Speaker 01:
Your honors, may it please the court.

[00:17:23] Speaker 01:
Before I begin, I did want to introduce my co-counsel, Mr. Harper Batts, who tells me this is his first time here today.

[00:17:28] Speaker 01:
So I wanted to make sure

[00:17:32] Speaker 01:
The court knew he was here and excited to be in front of the court for his first time.

[00:17:37] Speaker 03:
Before you begin, is the other side's understanding of the other patent status correct?

[00:17:42] Speaker 03:
That there's some institution of some AIA proceeding where, by the institution, there's a suggestion that there could be a problem with the claims?

[00:17:51] Speaker 01:
So let me just say, first, I'm not counsel in that case, so I'm not going to be entirely accurate in my description.

[00:17:55] Speaker 01:
But the answer is no, that was an incorrect representation.

[00:18:00] Speaker 01:
As I understand it, that proceeding went through an inter-parties re-exam, so a pre-AIA procedure.

[00:18:05] Speaker 01:
And that that re-exam has now been completed.

[00:18:09] Speaker 01:
There was a final decision entered finding those claims invalid.

[00:18:13] Speaker 01:
I believe entertainers move for reconsideration or rehearing of that finding.

[00:18:17] Speaker 01:
And I believe the PTAB has ruled against them on that recently.

[00:18:21] Speaker 01:
But again, I'm not counsel in that case, so I can't be 100% positive.

[00:18:26] Speaker 01:
But that's my sense of the status of that case.

[00:18:29] Speaker 01:
Before I get into the details of what Link Program should mean and why I think there's serious flaws in the patent owner's arguments on appeal, I did want to address the more important point, which is that even if you were to agree with them that the patent, PTAP, got the construction of Link Program wrong in some substantive sense, and even if you could identify a competing construction that they're offering on appeal that was preserved below, which I seriously doubt you'll be able to do in the record, it wouldn't matter.

[00:18:57] Speaker 01:
Because the PTAB also found that the claims were anticipated by Chin's hotlink stream alone, by itself.

[00:19:05] Speaker 01:
Nothing else is necessary.

[00:19:06] Speaker 01:
So because of that, even if you were to give them some additional construction that further cabined in the link program to somehow have some definite structure, where you could say this is what a limit of a link program is, the hotlink stream in Chin would satisfy that construction.

[00:19:22] Speaker 01:
And the PTAB has already told you that.

[00:19:25] Speaker 01:
They don't address this in their appeal briefs at all.

[00:19:28] Speaker 01:
They've made no attempt to show that there's any harmful error here in the claim construction.

[00:19:31] Speaker 01:
So for that reason alone, I think the court would have to affirm the PTAP's finding that Chen's hotlink stream program would be sufficient.

[00:19:41] Speaker 01:
And so let me just, with that in mind, draw you to a few places in the final written decision that I think are relevant to that finding.

[00:19:49] Speaker 01:
So most importantly, I guess I would start with appendix page 15, where the PTab says, this argument ignores petitioner's position that Chin's hotlink stream in the video by itself may constitute the link program.

[00:20:05] Speaker 01:
They never responded to that argument below, which was the primary argument that petitioner was making.

[00:20:11] Speaker 01:
So all of this noise about whether a link program could be one or two or what even that would mean, completely irrelevant.

[00:20:17] Speaker 01:
The court could simply affirm the PTEP's finding that the hotlink stream alone in Chin anticipates the claims, even under this more narrow construction that seems to be being proposed on appeal.

[00:20:28] Speaker 01:
And again, at Joint Appendix 15, the PTEP goes on to say, Pat Hunter does not contest that Chin's hotlink stream is both associated with the video and provided over the network

[00:20:39] Speaker 01:
The PTAB also found that the hotlink stream in Chen was a link program that satisfies the other elements of the claim, in particular the elements having to do with being adapted to allow interruption in streaming of the video.

[00:20:54] Speaker 01:
So if they never address it in the briefs, if they never address it below the PTAB, that's dispositive of the case.

[00:20:59] Speaker 01:
You don't even have to get into the nuances of what link program would mean or how you would comment it in.

[00:21:06] Speaker 01:
But since I've got time left on the clock, let me turn to what the proper construction of Link for a room is, because I think the construction that PTAB adopted was correct.

[00:21:17] Speaker 01:
And in fact, I heard my opposing counsel agree that the construction was correct when they stood up a few moments ago, saying they don't dispute the construction.

[00:21:24] Speaker 01:
Nor could they.

[00:21:25] Speaker 01:
In their reply brief, they effectively admit that that's the construction that they propose and that they rely on.

[00:21:30] Speaker 01:
So really what they're challenging is the application of the claim construction to the Chen reference, which is, of course, a much more deferential standard of review that this court must apply to what the PTAB did here.

[00:21:42] Speaker 01:
And our contention is the PTAB did nothing wrong, for I think the reasons that the court is already probably aware of, based on the conversation that you had a moment ago with my co-counsel.

[00:21:53] Speaker 01:
So the first problem is, if we're going to adopt the construction that it's, if the PTAB's construction was correct,

[00:22:01] Speaker 01:
that it's just a set of instructions that tells the computer what to do, what more are they asking you to do to this construction?

[00:22:07] Speaker 04:
What are they asking you to do?

[00:22:07] Speaker 04:
Well, that's a little unfair, is it not?

[00:22:09] Speaker 04:
Because the PTAB subsequently clarified its construction to say it didn't need to be limited to a single program.

[00:22:15] Speaker 04:
And that ends up being the dispute that's joined here, that leaving aside your alternative argument, this case is all about.

[00:22:23] Speaker 01:
Correct.

[00:22:24] Speaker 01:
I think they made an argument on application that the PTAB interpreted as a claim construction argument, and we frankly interpreted as a claim construction argument below, that they were essentially trying to argue that the claim construction was wrong and it should require a single program.

[00:22:39] Speaker 01:
The PTAB, I think, interpreted that as a claim construction argument correctly and rejected it.

[00:22:43] Speaker 01:
saying, we see no reason to limit this claim to a single claim.

[00:22:46] Speaker 04:
OK, so it's not an application of a claim construction.

[00:22:49] Speaker 04:
It really is fairly a claim construction dispute, I think.

[00:22:52] Speaker 01:
They're characterizing it as an application of the claim construction.

[00:22:55] Speaker 01:
That's my point, is that under the way they've characterized this appeal, they've set the appeal up supposedly as a dispute on application of claim construction.

[00:23:03] Speaker 01:
And that's a different standard of review.

[00:23:05] Speaker 01:
Now, as to the claim construction point,

[00:23:07] Speaker 01:
though, that you're asking about.

[00:23:09] Speaker 04:
Why would it help them to have, isn't there a more differential standard of review?

[00:23:14] Speaker 01:
Yeah, no, it doesn't help them at all.

[00:23:15] Speaker 01:
I think the problem is that they never contested explicitly the claim construction below.

[00:23:19] Speaker 01:
They didn't preserve a claim construction that would change the result.

[00:23:22] Speaker 00:
I thought your statement had issues on page one of the blue brief.

[00:23:24] Speaker 00:
Where they say whether the board aired and construed the claim terms such that no single link program that performs both functions is required.

[00:23:33] Speaker 00:
Why isn't that preserving the issue?

[00:23:34] Speaker 01:
Okay, well that would preserve the issue except that I heard co-counsel stand up and say they don't dispute the construction.

[00:23:39] Speaker 00:
No, he read what the construction was.

[00:23:41] Speaker 00:
Right.

[00:23:42] Speaker 00:
Before he got to whether it's two programs or not.

[00:23:44] Speaker 00:
Right.

[00:23:45] Speaker 00:
And he said we don't dispute that.

[00:23:47] Speaker 00:
So anyway, I think that we think this is an issue of claim construction.

[00:23:53] Speaker 00:
Fair enough.

[00:23:53] Speaker 01:
So let's address that.

[00:23:54] Speaker 01:
Then what is the right claim construction?

[00:23:56] Speaker 01:
That's the question.

[00:23:58] Speaker 01:
And what are they proposing the claim construction could be that would distinguish this alternative reading of gen, right?

[00:24:03] Speaker 01:
This alternative application of gen where you combine the streaming links program with a decoder.

[00:24:08] Speaker 01:
What is the construction that would distinguish that from the claims?

[00:24:11] Speaker 01:
The answer is, I don't know, because they don't tell us.

[00:24:13] Speaker 03:
I mean, if you look in the... Why can two programs be a program?

[00:24:17] Speaker 03:
I think that's the gist of the issue here.

[00:24:22] Speaker 01:
So I dispute the premise that we know what a program is.

[00:24:24] Speaker 01:
It's not clear at all that there's a limit to what a program is.

[00:24:28] Speaker 01:
So during questioning, during the appellant's presentation, I heard the problems with trying to identify what a program is.

[00:24:35] Speaker 01:
I mean, there's always gonna be code.

[00:24:38] Speaker 04:
Instinctively or intuitively, when you say a link program, you feel like you're talking about something in the singular, right?

[00:24:45] Speaker 01:
And the way the board construed that is a set of instructions.

[00:24:48] Speaker 01:
So that is a singular thing.

[00:24:50] Speaker 01:
It is a set of instructions.

[00:24:52] Speaker 01:
The problem is, where do you define the ends of that set?

[00:24:55] Speaker 01:
Can you just look at one particular place on the computer?

[00:24:58] Speaker 01:
Do you include, like, how far down do you go?

[00:25:00] Speaker 01:
Do you go into the code libraries?

[00:25:01] Speaker 01:
Do you go into the operating system?

[00:25:03] Speaker 01:
There's many, many levels of

[00:25:05] Speaker 01:
of instructions that are executing on a computer at any time, and what's the structural limitation?

[00:25:11] Speaker 01:
I mean, if they want to make this grand argument about some structural limitation on where the scope of a program is, it's up to them to tell us what that structural limit is, show support for that in either the claim language or the specification.

[00:25:23] Speaker 03:
Well, is it right to conclude that any two sets of instructions located anywhere on the network can somehow be plucked?

[00:25:34] Speaker 03:
and smashed together and then deemed to be a single set of instructions.

[00:25:43] Speaker 01:
I think if those separate set of instructions were working together to carry out the functionality of the claim, then yes, because that's exactly what... What if one is doing one discrete function and the other one is doing a different discrete function?

[00:26:01] Speaker 03:
Can someone look at the

[00:26:03] Speaker 03:
an entire matrix and then pull those two things together and say, aha, this is together now, these two discrete sets of instructions performing two discrete functions, now a program, now a single set of instructions.

[00:26:21] Speaker 03:
Give me something.

[00:26:22] Speaker 01:
OK.

[00:26:22] Speaker 01:
Well, those aren't our facts.

[00:26:23] Speaker 01:
So you don't have to worry about the extent of this hypothetical.

[00:26:25] Speaker 01:
But I think even on that hypothetical, my answer would be, in this case, yes, because of what was happened during the file history.

[00:26:32] Speaker 01:
I mean, in particular, in this case, to obtain allowance of these claims, the inventors and their expert had to come in and swear to the patent office that any disclosure of a computer performing this function is enough.

[00:26:45] Speaker 01:
So if you see a computer performing these functions, that's all you need to see to assure yourself there is a link program.

[00:26:53] Speaker 01:
And that's what we have in the chin reference.

[00:26:55] Speaker 01:
clear as day, the chin reference does exactly.

[00:26:58] Speaker 01:
I mean, it's almost literally word for word what they say this gap demo was that supposedly practiced.

[00:27:02] Speaker 04:
So you're referring to, let's look at 339.

[00:27:05] Speaker 04:
So you're referring to the sentence that Judge Stowe, I think, called our attention to at the top of the page.

[00:27:12] Speaker 04:
But what about what your friend said about the end of the paragraph starting moreover?

[00:27:16] Speaker 01:
Yeah.

[00:27:16] Speaker 01:
I mean, I think the end of the paragraph supports our view of link program as well.

[00:27:21] Speaker 01:
I mean, there's nothing in that sentence that takes away from what

[00:27:25] Speaker 01:
what was said in the sentence before, that any disclosure is enough.

[00:27:29] Speaker 01:
I mean, it's not like this was a one-off sentence.

[00:27:32] Speaker 01:
They say it numerous times in the file history.

[00:27:36] Speaker 01:
So for instance, if you look at Joint Appendix page 362, this is the declaration of their expert, Dr. Lloyd, during ex parte prosecution.

[00:27:47] Speaker 01:
He says,

[00:27:51] Speaker 01:
Again, any disclosure, this is where this language comes from, any disclosure of a computer performing various tasks necessarily means that there is a corresponding program providing the required instructions to perform that task.

[00:28:02] Speaker 01:
Therefore, the fact that the computer performs the disclosed functions when a user interacts with interface link necessarily requires that there is a link program instructing the computer to perform those functions.

[00:28:13] Speaker 04:
Do you agree with your friend that we're requiring a clear and unmistakable disclaimer in this circumstance or something less required to turn to the prosecution history?

[00:28:22] Speaker 01:
Well, this is not a disclaimer case.

[00:28:24] Speaker 01:
So I mean, I agree in general if I'm trying to narrow an otherwise broad claim by using the file history that we need to find a clear and unmistakable disclaimer.

[00:28:33] Speaker 01:
But that's not the argument that's being made here.

[00:28:36] Speaker 04:
And that's not the case because there's no plain and ordinary meaning to the term link program?

[00:28:41] Speaker 01:
Well, that's certainly true.

[00:28:42] Speaker 01:
I mean, there's no evidence that there's any plain and ordinary meaning to the term link program.

[00:28:45] Speaker 01:
The only expert testimony is Dr. Bowe, who said there is no plain and ordinary meaning to the term link program.

[00:28:52] Speaker 01:
But there's several cases from this court where the file history is used in a similar way to understand the claims in a broad way, which might even contradict the plain meaning.

[00:29:01] Speaker 01:
So for instance,

[00:29:03] Speaker 01:
Arlington Industries, 632, F3rd, 1246.

[00:29:10] Speaker 01:
The Laryngeal Mass Company at 618, F3rd, 1367.

[00:29:17] Speaker 01:
And the Saunders Group at 492, F3rd, 1326.

[00:29:23] Speaker 01:
All of them involve instances where the file histories look to to help interpret the scope of the claim in a way that might be considered broadening in some sense.

[00:29:31] Speaker 01:
But I did want to get back to Dr. Loy's testimony, because there's another section that follows the one I just quoted that's even more instructive to this point, I think.

[00:29:39] Speaker 01:
So as you remember here in the file history, the examiner had rejected initially these declarations that attempted to anti-date a prior art reference, noting that the way you've reduced this program, this idea to practice doesn't seem to be sufficient in accordance with the claim language, because there's no link program here.

[00:29:57] Speaker 01:
It's just a stream of hot links talking to something else.

[00:30:01] Speaker 01:
i.e.

[00:30:02] Speaker 01:
the same argument that they're making here now on appeal.

[00:30:05] Speaker 01:
And Dr. Loy responded to that examiner's rejection, noting, a link program is not properly an application in the plain meaning of that word.

[00:30:16] Speaker 01:
The ordinary meaning of the term application is software operated directly by the user.

[00:30:21] Speaker 01:
The term program, in quotes, is more general, covering also software that's not operated directly by the user, such as code libraries, background tasks, and operating systems.

[00:30:32] Speaker 01:
So even in the file history itself, we see that this notion of program is defined in this very amorphous way, purely in functional language, to talk about anything at all on this computer that's performing these functions.

[00:30:43] Speaker 00:
What page is that of the Joint Appendix?

[00:30:44] Speaker 01:
Sure.

[00:30:44] Speaker 01:
This is 362 of the Joint Appendix, which is the declaration testimony of Dr. Loy that's referred to in the file history section we looked at on page 339.

[00:31:13] Speaker 01:
The last thing I want to say in my remaining minute on this problem of defining what a boundary of a program could be is, again, if you look in the briefs, you'll find that the patent owner here has proposed about nine different ways of defining what a link program should be, none of which are consistent, to be honest.

[00:31:32] Speaker 01:
So it varies from a single link program, which I think is the construction that we're sort of talking about, to on page 17 of their opening brief, they talk about a multi-element program

[00:31:42] Speaker 01:
being within the scope of the claims.

[00:31:44] Speaker 01:
There's the footnote on page 30 that I think Judge Stahl asked about where they talk about the program being a compilation of instructions that when executed by initiating a run command must perform both of the recited functions.

[00:31:58] Speaker 01:
None of these constructions were presented to the PTAB.

[00:32:01] Speaker 01:
There's no evidence of record to support any of them.

[00:32:04] Speaker 01:
But that's the problem with this claim is there's no way to define this term link program any way other than the way the PTAB did.

[00:32:10] Speaker 01:
which is to look in the file history and see, well, what did you say it meant before to get the claim allowed in the first place?

[00:32:16] Speaker 01:
And what you said was, it's anything running on a computer that performs that function.

[00:32:20] Speaker 01:
That's exactly what the PTEP found present in the prior reference here.

[00:32:25] Speaker 04:
Thank you.

[00:32:30] Speaker 02:
Thank you.

[00:32:30] Speaker 02:
Thank you, Your Honors.

[00:32:31] Speaker 02:
Addressing first this allegation that the hot link by itself would somehow anticipate the claim.

[00:32:40] Speaker 02:
That's simply not right what the court said and it said the p-tap said and it said appendix page 15 is that the hotlink is both provided over the network and associated with the video stream And we don't dispute that but that does not mean that the hotlink by itself comprises a Link program yeah, but I thought the

[00:33:05] Speaker 04:
The point your friend was making, if he didn't make it, I'll make it, which is it's kind of a waiver position.

[00:33:13] Speaker 04:
Whether you agree or disagree with how they got there, do you disagree that they said that this was an alternative basis for reaching the conclusion they reached?

[00:33:23] Speaker 04:
And if that's the case, why you're not raising it on appeal or responding to your friend's red

[00:33:29] Speaker 04:
Does that not constitute link?

[00:33:31] Speaker 02:
Well, because it's the same argument, Your Honor.

[00:33:33] Speaker 02:
We're saying that there's no link program, and that the hotlink stream by itself does not constitute a link program.

[00:33:41] Speaker 02:
I mean, that's what we've been saying all along.

[00:33:44] Speaker 02:
We've been saying that a link program that functions to both access and interrupt is not a link program.

[00:33:53] Speaker 02:
We said that about the hotlink program, and we said that about the decoder in Chen.

[00:33:59] Speaker 02:
And so this is the exact same argument, Your Honor.

[00:34:01] Speaker 02:
We couldn't have waived it.

[00:34:03] Speaker 02:
It's the same argument being applied.

[00:34:05] Speaker 02:
If the hotlink program is not a link program that does both functions, it's not for the first claim element, and it's not for later claim elements either.

[00:34:16] Speaker 02:
So it's not dispositive of the issue.

[00:34:20] Speaker 02:
The issue is whether a link program is a set of instructions.

[00:34:24] Speaker 02:
And I would point us back again to appendix page 339.

[00:34:28] Speaker 02:
Where our expert, Dr. Loy, said, as such, one having ordinary skill in the art would appreciate that the claimed link program is merely the list of instructions that perform the disclosed functions.

[00:34:43] Speaker 02:
The list of instructions.

[00:34:45] Speaker 02:
That's a program.

[00:34:47] Speaker 02:
And we know that one of ordinary skill in the art can identify where lists of instructions exist and are separate from each other.

[00:34:54] Speaker 02:
Because that's exactly what Dr. Bowe, their expert, did.

[00:34:58] Speaker 02:
And it's in his deposition at appendix page 2680, where he identified three sets of instructions in the Chen reference.

[00:35:07] Speaker 02:
One set of instructions was the hotlink that went out and got the ancillary content.

[00:35:12] Speaker 02:
The other set of instructions was the decoder that interrupted the video stream.

[00:35:18] Speaker 02:
And the third set of instructions was the set of instructions that displayed whatever content, ancillary content, was pulled down from the internet.

[00:35:27] Speaker 02:
So Dr. Bove had no problem whatsoever in identifying in Chen where there are three separate sets of instructions, which he said don't necessarily relate to one another either.

[00:35:39] Speaker 02:
And that's on 2714 and 2741 of the appendix in his deposition, where he said no.

[00:35:46] Speaker 02:
The hotlink instructions aren't necessarily associated with the decoder.

[00:35:52] Speaker 02:
And the decoder is not necessarily associated with the

[00:35:56] Speaker 02:
video stream.

[00:35:58] Speaker 02:
But the point being is he knew how to identify a list of instructions.

[00:36:03] Speaker 02:
And all our experts said in the prosecution history was that in the embodiment of this invention that entertainer rolled out, that one of ordinary skill in the art would appreciate that the link program in that embodiment is merely the list of instructions that perform the claimed functions.

[00:36:26] Speaker 02:
And then he identified where that resides in the interface link, which is an element of the interface link program, which is an element of the link program.

[00:36:37] Speaker 02:
An element of the link program, not some separate set of instructions.

[00:36:42] Speaker 02:
So the suggestion that one of ordinary skill in the art here wouldn't know how to identify a set of instructions that is intended to perform specific functionality in a computer is belied by the testimony

[00:36:54] Speaker 02:
of Hulu's own expert, Dr. Bowe.

[00:36:58] Speaker 04:
Thank you.

[00:36:59] Speaker 04:
We thank both counsel.

[00:37:00] Speaker 04:
The case is submitted.