[00:00:04] Speaker 04: Okay, the last case before the court, case number 152061, Motorola Mobility versus Microsoft. [00:00:15] Speaker 04: Again, a decision from the Patent Trial and Appeal Board. [00:00:33] Speaker 04: Mr. Amke, you want five minutes for rebuttal? [00:00:36] Speaker 00: Yes, ma'am, thank you. [00:00:46] Speaker 04: All right, you may begin. [00:00:48] Speaker ?: Thank you. [00:00:53] Speaker 00: May it please the court, this claim construction dispute is about when content is to be displayed in a browser. [00:01:00] Speaker 00: And based on the briefing, I should think we're down to about [00:01:03] Speaker 00: Two issues, maybe one and a half. [00:01:05] Speaker 00: The first issue is an issue raised by the board's claim construction about whether all of the content is to be displayed during the content loading. [00:01:13] Speaker 04: Will you both agree that the board's claim construction to the extent that it says that you don't get to the fully loaded mode until it's fully loaded? [00:01:21] Speaker 00: I think you're reading my notes, Your Honor, because that's my exact answer. [00:01:24] Speaker 04: So you all agree on that. [00:01:25] Speaker 04: So the question is, why does that matter? [00:01:29] Speaker 04: I mean, does the fact that the board got that portion of the claim construction wrong automatically require that we have to send it back? [00:01:35] Speaker 00: Well, yes, Your Honor. [00:01:37] Speaker 00: We actually think that's the first part of it. [00:01:39] Speaker 00: Yes, the parties are in agreement that when we're looking at the notion of when we're loading and displaying content, it's happening within this mode. [00:01:48] Speaker 00: And the board's construction is attempting to create this notion of the content is different between the two respective modes. [00:01:54] Speaker 00: We do think that's an incorrect construction to just leave hanging out there. [00:01:58] Speaker 00: But I think the second issue then is the more apropos issue that was raised by Microsoft in the brief about a very specific manner of displaying the content, of attempting to restrict the claim to an incremental form of loading and displaying the content. [00:02:15] Speaker 00: And that's where we disagree that the claim scope should not be so limited and so narrow to require in all instances an incremental loading and display of the content. [00:02:25] Speaker 02: And so when you say incremental loading, that means [00:02:28] Speaker 02: You've got the icon staring at you in the face while you're sitting there watching the page load on the display. [00:02:36] Speaker 00: Right. [00:02:37] Speaker 00: I believe that's the intended interpretation from Microsoft of that. [00:02:41] Speaker 00: I'm curious. [00:02:42] Speaker 02: Back in the, I guess, 1996, 1997 time frame, is that how Internet Explorer and WebScape worked? [00:02:57] Speaker 00: I believe it was already known in the field and in the art to be able to facilitate partial rendering of content. [00:03:06] Speaker 04: Then why didn't you cite other prior art other than just these pinpoint references? [00:03:10] Speaker 00: The reason we did not, Your Honor, is because of what the claim scope and what the specifications described. [00:03:15] Speaker 00: As we look at the specification and the language that was added about three years into the prosecution, is that we only had this figure three and figure four. [00:03:26] Speaker 00: describes in the specification where there was a display of the content during the loading mode in its entirety. [00:03:33] Speaker 00: There was no indicia at all within the claim whatsoever or within the specification that there would be a partial display. [00:03:41] Speaker 04: I guess I'm having a difficult time. [00:03:44] Speaker 04: When you say display during loading mode, so you're saying that you're only talking about that final last point and that during the loading mode, [00:03:56] Speaker 04: doesn't include the entirety of the loading mode? [00:04:01] Speaker 00: No, we're in a position that you do disclose, or you do display all of the content during the loading mode, yes. [00:04:08] Speaker 04: Okay, so loading mode starts here. [00:04:09] Speaker 00: Yes. [00:04:10] Speaker 04: Right? [00:04:11] Speaker 04: And PenPoint doesn't display the content till here, correct? [00:04:15] Speaker 04: Correct. [00:04:16] Speaker 04: So I agree that that's in the loading mode. [00:04:18] Speaker 04: Microsoft agrees that that's still in the loading mode. [00:04:21] Speaker 04: So you're saying that all of this, there's no display. [00:04:25] Speaker 04: You're saying they don't even claim a display? [00:04:28] Speaker 00: No, no, no. [00:04:28] Speaker 00: What we're saying is that all this is keying off of the display of the status icon. [00:04:33] Speaker 00: Because that was what the intention of the invention was from the very beginning, was when we're in a particular loading mode, whatever actions we need to be doing. [00:04:41] Speaker 00: But when we're in a particular loading mode, we're supposed to be displaying an icon. [00:04:45] Speaker 00: And then to signify to the user that we are done with this particular mode, again, whatever we're supposed to do in that mode, we then subsequently remove the icon [00:04:54] Speaker 00: So the user knows we have transitioned. [00:04:56] Speaker 00: Right. [00:04:56] Speaker 00: But what else is, in your view, being displayed during the loading mode? [00:05:03] Speaker 00: The content, whether it's incremental or whether it's a single increment of load and display. [00:05:09] Speaker 02: OK. [00:05:09] Speaker 02: So I guess you're saying the claim covers an embodiment where, during the loading mode, the loading icon is flashing on the screen somehow. [00:05:19] Speaker 02: Yes. [00:05:20] Speaker 02: And then the rest of the display, during the loading mode, [00:05:24] Speaker 02: Could be just looking, were you the user just looking at the pre-existing webpage? [00:05:31] Speaker 02: Correct. [00:05:32] Speaker 02: Before any attempt at loading something else occurred? [00:05:35] Speaker 00: Before any... I guess you confused me with that last statement. [00:05:38] Speaker 00: I agreed with everything you were saying. [00:05:41] Speaker 02: Before clicking on some hyperlink that's on that pre-existing webpage. [00:05:44] Speaker 00: I'm on page one that contains a hyperlink. [00:05:47] Speaker 00: And I clicked that. [00:05:48] Speaker 00: I believe that the claim then says we are now in loading mode. [00:05:52] Speaker 00: Whether or not we've even received any content to begin with, we're now starting the loading mode process. [00:05:56] Speaker 00: So we're going to signify the user that, yes, we recognize you clicked the link. [00:06:00] Speaker 00: And we're going to display an icon on the screen. [00:06:02] Speaker 02: Right. [00:06:02] Speaker 02: And then the next thing that changes on the screen could be a disappearing of the pre-existing web page and then an appearance of a complete version of the new web page. [00:06:17] Speaker 00: I believe that is one possibility within the scope of this claim when we look at what the specification describes. [00:06:22] Speaker 02: And then how does that comport with the claim language in the content loading mode? [00:06:27] Speaker 02: The hypermedia browser loads content, displays such content in the content viewing area as it loads. [00:06:36] Speaker 02: I mean, I'll just be honest with you. [00:06:37] Speaker 02: When I read that phrase, that to me very clearly, unambiguously, is communicating [00:06:46] Speaker 02: that the user during the content loading mode is watching the page load before your very eyes. [00:06:56] Speaker 02: Probably words come first and then the picture comes second and maybe the picture doesn't come instantly all together. [00:07:01] Speaker 02: You have to wait for the picture to somehow materialize in a complete form. [00:07:05] Speaker 00: I had the same reaction as well, but when we looked at the rest of the specification and what it was disclosing, [00:07:14] Speaker 00: There was no disclosure of any specific mechanism that mandated that you had to slice content. [00:07:22] Speaker 00: We're looking at it from the context of, well, we have this entire mass of content, and let's display it partially. [00:07:29] Speaker 00: And I'm not disputing that that could not be within the scope of this claim. [00:07:32] Speaker 00: I'm not trying to exclude that, although I do believe it's not disclosed in the specification. [00:07:37] Speaker 04: What I'm pointing to is that even if that's [00:07:42] Speaker 04: would sound like the common and ordinary meaning of those words because I have to say I'm with Judge Chen in terms of just reading those words. [00:07:50] Speaker 04: You're saying that somehow there's some specification disclaimer of that? [00:07:55] Speaker 00: I think there's no support for such a narrowed construction. [00:07:59] Speaker 04: Well that would be [00:08:00] Speaker 04: enablement or written description problem, it's not a question of what the construction should be. [00:08:05] Speaker 00: Well, I would think we would only enter the enablement problem if we adopted such a narrow construction. [00:08:10] Speaker 00: I think there are other avenues to go that would not result in a 112 specification issue. [00:08:15] Speaker 03: I think what they're saying is that the plain claim language is pretty clear on its face, so what in the specification or anywhere else would make it so [00:08:25] Speaker 03: The claim language shouldn't be understood just as it's written. [00:08:29] Speaker 00: Sure. [00:08:29] Speaker 00: The claim language was actually added three years into the process. [00:08:33] Speaker 00: It was not part of the original specification. [00:08:35] Speaker 00: And the case law indicates, and we cited it in our brief, that when we're attempting to construe a claim, we have to construe it in accordance with the embodiments disclosed in the original specification. [00:08:44] Speaker 00: And when we look at the original specification, we do not see a specialized form and manner that were restricting the claim to always displaying solely content [00:08:53] Speaker 00: in chunks in an iterative fashion, and that we're supposed to exclude a scenario where we would have a single load and single display action. [00:09:02] Speaker 00: That's our position. [00:09:03] Speaker 04: So you're saying you can't point us to anything in the spec that you think would lead us away from this notion. [00:09:09] Speaker 04: You're just saying they can't point us to anything in the spec that would lead us to it. [00:09:14] Speaker 00: Correct. [00:09:15] Speaker 00: We're saying that, and again, actually, because I don't think those are necessarily mutually exclusive positions. [00:09:21] Speaker 00: We're not saying that you cannot [00:09:24] Speaker 00: do incremental display and break a page into content versus images or perhaps render an image partially. [00:09:31] Speaker 00: I do not believe that's important in this respect, but I'm not trying to specifically exclude it today. [00:09:35] Speaker 00: What I'm saying is that even if we have the notion of incremental loading, there is nothing in the specification that we should not, cannot, must not construe the claim to exclude an operation where the content is loaded and displayed in a single step. [00:09:54] Speaker 00: If I have a small piece of content that does not lend itself to being sliced, if I have the letter A as my content, and the claim includes the notion of just raw text, if I have the letter A, I'm going to display that in a single load and display step. [00:10:09] Speaker 00: And we think that is within the scope of the claim when we're talking about display of such content, as it loads during the content loading. [00:10:23] Speaker 00: Make sure as we continue to address this. [00:10:27] Speaker 00: And we think that at the end of the day, this is comporting with, again, the intended purpose of the specification, because it's all about we're displaying the icon, we're waiting until we're done with the load and display action, and then we're moving. [00:10:40] Speaker 00: So the whole point here is we want to conclude our load and display step before we signify to the user that we're transitioning. [00:10:48] Speaker 00: So we're alerting the user. [00:10:50] Speaker 00: We're in this process. [00:10:51] Speaker 00: You've clicked the link. [00:10:52] Speaker 00: We're doing some loading. [00:10:53] Speaker 00: Maybe it's happening incrementally. [00:10:54] Speaker 00: Maybe it happens fast and it's just a single load and display. [00:10:58] Speaker 00: But when we're done, we're going to remove the icon and move over to the content loading mode. [00:11:05] Speaker 04: You're in your rebuttal. [00:11:06] Speaker 00: Thank you. [00:11:15] Speaker 01: May it please the court. [00:11:16] Speaker 01: I'd like to address the court's attention to the prior art reference appendix [00:11:20] Speaker 01: 451 and 452. [00:11:25] Speaker 01: Regardless of the claim construction, even under Motorola's claim construction, we still should win because the prior art pinpoint busy clock in page 451 has a depiction of figure 45. [00:11:40] Speaker 01: And there's two things it doesn't show that are required by the claim. [00:11:43] Speaker 01: So what figure 45 shows is simply the busy clock. [00:11:47] Speaker 01: Somebody has clicked on [00:11:49] Speaker 01: a link and the computer is too busy doing other things in order to respond to the user's click. [00:11:56] Speaker 01: What this does not disclose is displaying content as it loads. [00:12:03] Speaker 01: There is no depiction in any of the pages that Google submitted, Motorola submitted to the patent office, of any content being displayed. [00:12:12] Speaker 01: None of the external content that is being requested is ever shown here as being displayed. [00:12:17] Speaker 01: So it doesn't disclose displaying the content while it's loading. [00:12:23] Speaker 01: The second thing, it doesn't disclose. [00:12:25] Speaker 04: Do you believe it doesn't disclose displaying the content while loading in a fully loaded mode? [00:12:34] Speaker 04: In other words, what you've now said with respect to your claim is that you display it incrementally and you also display it in a fully loaded mode during the loading process, right? [00:12:47] Speaker 01: Not necessarily, if I understand correctly, Your Honor, our position is that the, you do disclose, during the loading process, you disclose the content as you go along, and therefore at the end of that process, yes, all of the content is. [00:13:02] Speaker 04: At some point it's fully loaded. [00:13:03] Speaker 01: Right, at the end it's fully loaded. [00:13:04] Speaker 04: And you're still in the loading mode, you can see that. [00:13:07] Speaker 01: That's correct, and you, the graphic could still be there at that point. [00:13:11] Speaker 01: That is correct. [00:13:12] Speaker 04: And so, is it your position that PennPoint [00:13:16] Speaker 04: I meant to ask you this, I meant to write this down as a question, but I don't know what an ungulate is, but that's a different question. [00:13:27] Speaker 04: See figure 45, sorry. [00:13:31] Speaker 01: Very good. [00:13:31] Speaker 04: A herd of ungulates, but beyond that. [00:13:39] Speaker 04: Is it your position that never during the loading mode, even at that fully loaded point, [00:13:45] Speaker 04: does PennPoint display? [00:13:47] Speaker 01: That's right. [00:13:47] Speaker 01: That is our position. [00:13:48] Speaker 01: And in particular, the second thing it doesn't disclose is it never discloses the busy clock and the content simultaneously. [00:13:57] Speaker 01: So PennPoint doesn't disclose displaying content as it's loading, nor during the process of loading, while loading, during that, say it takes 10 seconds to load everything, it doesn't disclose displaying the content during the 10 seconds. [00:14:15] Speaker 01: we will confess, you know, assume that eventually the content shows up, right? [00:14:19] Speaker 01: But not during the 10 seconds that it took to load. [00:14:21] Speaker 01: No disclosure of that. [00:14:22] Speaker 01: Nor is there any disclosure that the busy clock appears while, when the content appears. [00:14:29] Speaker 01: So as far as this disclosure is concerned, and in fact this is the only rational reading of the busy clock, the busy clock has disappeared long before that 10 seconds. [00:14:40] Speaker 01: The purpose of the busy clock is to say to the user, [00:14:44] Speaker 01: that we know our display looks frozen, but that's because the computer is doing something else, the hand-hands doing something else. [00:14:50] Speaker 01: So in the 10-second example, the busy clock disappears before the first display. [00:14:57] Speaker 04: Okay, now this is slightly different than the way I thought I understood your argument from your briefs. [00:15:03] Speaker 04: So are you saying that your claims don't necessarily require incremental loading? [00:15:09] Speaker 04: So in other words, they don't necessarily require a showing of content during the entirety of the loading period. [00:15:16] Speaker 01: No, I'm not saying that. [00:15:17] Speaker 01: I'm saying if the loading takes 10 seconds, then it's displayed as it loads. [00:15:23] Speaker 01: We stand by the plain mean. [00:15:24] Speaker 04: So for the whole 10 seconds. [00:15:25] Speaker 01: The whole 10 seconds. [00:15:26] Speaker 01: If somehow it took only a nanosecond, then boom, it's just going to show up. [00:15:33] Speaker 01: During the period as it loads, you need to be displaying, you need to do three things simultaneously in our claim. [00:15:39] Speaker 01: You need to be loading the content that's been, the new content. [00:15:42] Speaker 01: You need to be displaying it as it loads. [00:15:45] Speaker 01: Now it doesn't mean that, you know, it may load, there may be a slight lag, but as a practical matter, the user sees the content as it loads and you see the temporary graphic. [00:15:54] Speaker 01: Then what happens, the graphic disappears and that tells the user, okay, it's all loaded. [00:16:00] Speaker 01: And the display is not going to change anymore. [00:16:03] Speaker 03: What's your response to your adversary's argument that the idea of displaying content as it loads is not disclosed in your specification? [00:16:14] Speaker 01: Figure three is described. [00:16:16] Speaker 01: We disagree, Your Honor, with my friend. [00:16:19] Speaker 01: And if one turns the page, [00:16:22] Speaker 01: to column 4 at line 54. [00:16:25] Speaker 01: This is a description of figure 3. [00:16:28] Speaker 01: So figure 3 is referenced at column 4, line 15. [00:16:33] Speaker 01: And then the next paragraphs here, including line 54, 53, 54, are referring to figure 3. [00:16:40] Speaker 01: And it says, beginning at line 53, column 4, quote, rather the browser is configured to display a temporary graphic element, 64, over a content viewing area. [00:16:52] Speaker 01: during times when the browser is loading content. [00:16:56] Speaker 01: So it is referring to figure three as a time at which the browser is loading content. [00:17:01] Speaker 01: And then if we look at figure three, it is displaying content. [00:17:05] Speaker 01: In fact, it's displaying, it appears from the static image, it's displaying all the content. [00:17:11] Speaker 01: But what the spec describes, the written description describes, is that figure three is a period when the browser is loading content [00:17:20] Speaker 01: And the figure three shows content. [00:17:23] Speaker 01: So it shows you have to look at the text and the figure together to see a disclosure that during this period of loading content, indeed the browser is displaying content. [00:17:33] Speaker 01: We also would submit that the argument is a written description argument. [00:17:38] Speaker 01: The plain meaning has now been admitted to as, means, when, or during. [00:17:43] Speaker 01: That's how the examiner understood it. [00:17:46] Speaker 01: The examiner said, [00:17:48] Speaker 01: that we have in the appendix at page A5012, we have Motorola quoting the examiner, equating as it loads, quote, means that content is displayed while it is loading, and PenPoint does not teach this partial display of loaded content. [00:18:10] Speaker 01: So again, A5012. [00:18:12] Speaker 01: So that's how the examiner understood it. [00:18:14] Speaker 01: Motorola admitted it. [00:18:16] Speaker 01: And then I think there might have been a comment that the board got the construction wrong. [00:18:20] Speaker 01: We disagree with that. [00:18:21] Speaker 01: The board simply said, the very logical point, that just, and I'll go back to, I'll end with a theatrical analogy if I could, the curtain idea. [00:18:33] Speaker 01: So we have in our brief the notion that if there's two ways of doing things, you could have the curtain up so that the audience sees the scenery when it's being loaded on the stage by the stagehands. [00:18:44] Speaker 01: That's one way of doing it. [00:18:45] Speaker 01: And obviously when you do that, at the end of their work, you see all of the loaded scenery. [00:18:51] Speaker 01: That's the way the claim is talking about. [00:18:53] Speaker 01: What PennPoint does is you're a different PennPoint. [00:18:55] Speaker 01: The curtain is down as far as the disclosure is concerned. [00:18:59] Speaker 01: The scenery is loaded behind the scenes. [00:19:01] Speaker 01: Nobody sees it. [00:19:02] Speaker 01: And then the curtain goes up and it's all there. [00:19:04] Speaker 01: Those are completely different ways of doing things. [00:19:06] Speaker 01: And that's all the board was saying. [00:19:08] Speaker 01: And refer to page A8, this is the board's decision. [00:19:13] Speaker 01: at the bottom, this is the last paragraph on A8, and two sentences from the bottom. [00:19:21] Speaker 01: So it basically, it says, the board quote, so even assuming without deciding that the busy clock is displayed when all the loaded content is displayed as requester seems to suggest, this content is not displayed as it loads, but rather after it loads. [00:19:39] Speaker 04: So wait, I mean, for you to say that the [00:19:42] Speaker 04: But the board specifically said that there are two separate modes, the content loading and the loaded mode. [00:19:48] Speaker 04: And it said the content loading mode must not include displaying all loaded content. [00:19:55] Speaker 04: But you're saying that it can't. [00:19:58] Speaker 01: I'm saying I don't read the board's ruling the way your honor is suggesting. [00:20:05] Speaker 01: I say the board read it the way we urged it and the way we're urging it now and in our brief. [00:20:10] Speaker 01: The board is saying that merely displaying everything after it's loaded, that that's not the same as doing it during it. [00:20:19] Speaker 01: Waiting 10 seconds to display it is not the same as doing it during the 10 seconds. [00:20:24] Speaker 04: That's fine for purposes of the distinction between Penpoint and your claims to the extent that that's what the board was talking about, but this language that I'm talking about where they talked about the two temporal aspects of the modes, that was in their claim construction. [00:20:41] Speaker 01: Well, but they say include displaying all load. [00:20:44] Speaker 01: They're correct, there are two temporal aspects. [00:20:46] Speaker 01: The two temporal aspects, albeit they overlap at an instant when the content loading has completed. [00:20:55] Speaker 01: The board didn't say anything to the contrary. [00:20:57] Speaker 01: In fact, the sentence I read, they seem to acknowledge this. [00:21:01] Speaker 01: They say even if it's displayed when all the loaded content is displayed, [00:21:08] Speaker 01: Which is fine, we agree with that. [00:21:09] Speaker 01: That doesn't mean you were doing it during the 10 seconds. [00:21:12] Speaker 01: That's all they're saying. [00:21:12] Speaker 01: Now they have language that in isolation is confusing. [00:21:15] Speaker 01: They say to construe the content loading mode to include displaying all loaded content, i.e. [00:21:21] Speaker 01: after it loads completely. [00:21:22] Speaker 01: What they meant was that isn't good enough. [00:21:25] Speaker 01: You can't construe this content loading period as being satisfied if all you do is raise the curtain at the end. [00:21:31] Speaker 01: They weren't saying that you, the proposed construction to me is bizarre. [00:21:36] Speaker 01: that Motorola suggested that what the board was saying was, oh yeah, you disclose it all along for like nine seconds and then you stop disclosing it. [00:21:43] Speaker 01: That's silly. [00:21:44] Speaker 01: The board didn't say that. [00:21:45] Speaker 01: No one proposed that. [00:21:47] Speaker 01: That isn't what they were saying, and there's nothing in the record that would support that notion. [00:21:52] Speaker 01: That would be bizarre. [00:21:53] Speaker 01: There's nothing in the patent that says that. [00:21:55] Speaker 01: So, yeah. [00:21:57] Speaker 02: How about your figure three, which represents the content loading mode and appears to show a fully loaded [00:22:03] Speaker 02: web page with the loading icon still flashing on the screen. [00:22:09] Speaker 01: Right, and the written description describes that as a period when content is loading. [00:22:15] Speaker 01: That's what the written description says the content is. [00:22:18] Speaker 02: But you understand when I compare figure 3 to figure 4, which is the content loaded mode, the two web pages look identical. [00:22:30] Speaker 02: We've agreed to that, yes. [00:22:32] Speaker 02: I guess what I'm wondering is, it looks to me, just looking at the figures, that the content loading mode shows a web page that is fully loaded. [00:22:42] Speaker 01: Well, the written description says it's not. [00:22:44] Speaker 02: The written description, again, says... But when you look at the figures, we all agree that they're showing the identical web page. [00:22:53] Speaker 01: We agree that it appears to be the identical web page. [00:22:56] Speaker 01: However, as we noted and the board noted, I'm not sure the examiner did, [00:23:00] Speaker 01: It could very well be that the resolution isn't fully there. [00:23:05] Speaker 01: That the graphic, the Windows graphic, you know, could be more, you know, higher resolution. [00:23:10] Speaker 01: There could be more content loading. [00:23:12] Speaker 01: The practical, you know, matter is that the drafter didn't bother to do a very good job with the drawing, but perhaps wasn't too worried about that because he had or she had the specs saying [00:23:27] Speaker 01: during times when the browser is loading content. [00:23:30] Speaker 02: So we're at a point now with your claim that the only arguable patentable advance over the prior art is that the viewer, the user, gets to watch the new page loading while the little icon is on the screen. [00:23:45] Speaker 02: Is that fair to say? [00:23:47] Speaker 01: No, Your Honor, we wouldn't think that's fair to say as to the prior art of record. [00:23:51] Speaker 01: Their challenge was a single reference. [00:23:53] Speaker 01: In fact, they'll make four pages from Penpoint. [00:23:55] Speaker 01: It doesn't show anything that's required in this content loading. [00:23:59] Speaker 01: It doesn't show the graphic appearing during display of content. [00:24:06] Speaker 02: Well, that's my point. [00:24:07] Speaker 02: They're showing some kind of graphic, but they're not showing the graphic while you, the user, get to watch the new page slowly building on the screen. [00:24:20] Speaker 01: That's correct, but that's not complete. [00:24:21] Speaker 01: Also, you don't get to see the graphic when you see any of the content, even the full content. [00:24:27] Speaker 01: You don't get to see a little of the content in the graphic. [00:24:29] Speaker 01: You don't see the content with the full. [00:24:30] Speaker 01: You don't get to see figure three. [00:24:31] Speaker 01: You don't get to see figure four. [00:24:34] Speaker 02: Were you the first ones to come up with that idea back in 1997? [00:24:38] Speaker 02: It seems like that was already an established practice. [00:24:44] Speaker 02: in the arts? [00:24:45] Speaker 01: Well, I would only say I would think that Motorola, Google, if there was better art, they could have found it. [00:24:50] Speaker 01: They're well equipped. [00:24:52] Speaker 01: And this is what they came up with. [00:24:53] Speaker 02: I guess what I'm saying is I'm a little concerned for Microsoft with this patent in terms of its ultimate validity. [00:25:02] Speaker 01: Well, I can't speak to that, obviously. [00:25:04] Speaker 01: Claim as a whole, other limitations, the spec described the admitted art. [00:25:09] Speaker 01: as having certain of these elements, but that the difference was back then with a slow loading, small handheld, that you had this graphic and it didn't take up space. [00:25:20] Speaker 01: The claim specifies that it's obstructing some content. [00:25:23] Speaker 01: It's only temporary. [00:25:24] Speaker 01: It's not taking up space on the toolbar. [00:25:27] Speaker 01: And certainly it is true with small screens. [00:25:29] Speaker 01: Things like that matter a lot in terms of whether you have some permanent graphic that's obscuring toolbar or taskbar. [00:25:36] Speaker 01: So I can't personally say [00:25:39] Speaker 04: You thought things were going pretty well until they dropped that bomb on you, right? [00:25:42] Speaker 01: Well, I can't personally say that it's a bad invention. [00:25:46] Speaker 01: I can say. [00:25:46] Speaker 03: I noticed that column two talks about using the patent. [00:25:49] Speaker 03: It talks about to avoid this situation, browsers typically include a flag or globe that becomes animated during periods when content is being loaded. [00:26:00] Speaker 03: Is that like an admission in the background of the invention, admission about what the prior teaches? [00:26:06] Speaker 01: There is prior art description in the background. [00:26:10] Speaker 01: It could be an admission, but the challenge here did not, the 103 challenge did not combine admitted art and pen point. [00:26:18] Speaker 01: The 103 challenge that the examiner had to deal with, the board had to deal with, was simply on pen point. [00:26:23] Speaker 01: No background art, no expert, no secondary considerations, no admitted art. [00:26:29] Speaker 01: And we would submit it would be unfair to the examiner and the board to change the challenge at this level. [00:26:34] Speaker 03: And in response to Judge Romali's question, I would just note that ungulate is a hoofed mammal. [00:26:39] Speaker 04: Thank you. [00:26:43] Speaker 01: Thank you. [00:26:46] Speaker 04: OK. [00:26:48] Speaker 04: You have four minutes and 40 seconds for your rebuttal. [00:26:54] Speaker 00: Just want to address just a few quick points. [00:26:58] Speaker 00: In response to your questions about figure three, counsel referenced [00:27:04] Speaker 00: some portions of the specification in column four, and actually throughout their response brief they attempt to address the notion that their specification does not disclose the specific embodiment of displaying content incrementally. [00:27:18] Speaker 00: And we look at the citation referenced here, there's not even the notion of displaying the content. [00:27:24] Speaker 00: We're displaying a temporary graphic when the browser is loading content. [00:27:28] Speaker 00: There's no disclosure of displaying content incrementally. [00:27:32] Speaker 04: Well, that's a separate question, right, about... Again, yes. [00:27:36] Speaker 00: I mean, I agree. [00:27:36] Speaker 00: I think all this is going back to what the, as we're trying to reconcile this language within the claim with what's actually disclosed in the specification. [00:27:45] Speaker 00: I want to first touch on that. [00:27:47] Speaker 04: Where in PennPoint do you, does it show any display of any content? [00:27:52] Speaker 00: What, PennPoint? [00:27:53] Speaker 04: Before the curtain comes up. [00:27:55] Speaker 00: Sure. [00:28:00] Speaker 00: When we look at PennPoint, [00:28:01] Speaker 00: What Pinpoint is referring to is you have a busy clock and you put the busy clock up on the screen and referring to A51, A762. [00:28:15] Speaker 00: And it's all about this program environment where it can display documents, it can display text, it can display images. [00:28:27] Speaker 00: And it teaches that throughout this process, for all applications, that when it's doing something, including loading remote files, to signify to the user, I'm doing something, whatever your action happens to be, whether it's retrieving the content or following a hyperlink, put the clock up on the screen. [00:28:43] Speaker 00: And as you keep it up on the screen, as it says on A762, you keep it up on the screen until your application is no longer busy, and then you send a message to the manager [00:28:56] Speaker 00: with the busy off signal to remove the icon from the screen. [00:29:01] Speaker 00: So it's teaching, again, and it appears like this is almost being crafted as an anticipation argument. [00:29:07] Speaker 00: That was not the argument in the grounds that we cited. [00:29:10] Speaker 00: This is actually multiple pinpoint references that we did in the obviousness combination. [00:29:16] Speaker 00: This is not an anticipation argument. [00:29:19] Speaker 00: And so what we have here is we have a system describing [00:29:22] Speaker 00: that you can display documents on the screen, that you can click on hyperlinks, and that you display a clock when the application is busy doing whatever the application happens to be doing. [00:29:32] Speaker 00: And then when it's done with this process, you remove the clock. [00:29:37] Speaker 00: We believe that renders obvious loading and displaying content when you're displaying the busy clock, because that's what your application is busy doing. [00:29:51] Speaker 00: I'd also point out that in the initial reexamination, claims 40 through 42 were actually initially found obvious over the pinpoint references. [00:30:01] Speaker 00: It wasn't until this claim construction was adopted that it was deemed that the pinpoint references fell outside the scope of the claim. [00:30:12] Speaker 04: OK. [00:30:12] Speaker 04: Anything else? [00:30:13] Speaker 04: All right. [00:30:15] Speaker 04: The cases will be submitted. [00:30:16] Speaker 04: This court is adjourned. [00:30:18] Speaker 02: All rise. [00:30:22] Speaker 02: The Honorable Court is adjourned from day to day.