[00:00:01] Speaker 03:
Our first case today is 2016-1277, Tom Tom versus Adolph.

[00:00:09] Speaker 03:
Ms.

[00:00:09] Speaker 03:
Caton, please proceed.

[00:00:21] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:24] Speaker 00:
We are here today after the district court determined that TomTom did not infringe Dr. Adolph's patent based upon TomTom's third motion for summary judgment of non-infringement.

[00:00:39] Speaker 00:
In doing so, the district court made two types of errors.

[00:00:43] Speaker 01:
In the rule brief at 38 and 39, you say that while Dr. Adolph didn't agree with the district court's initial construction of the subject limitation,

[00:00:53] Speaker 01:
You chose not to appeal that construction because you believe he could show infringement under it, under the construction?

[00:01:01] Speaker 00:
That's right, Your Honor.

[00:01:04] Speaker 01:
Why should we not find that you waived the opportunity to challenge the district court's construction limitations?

[00:01:11] Speaker 00:
For several reasons.

[00:01:12] Speaker 00:
First, the district court actually changed its construction on remand when applying that construction to the facts of the case.

[00:01:18] Speaker 00:
So we now are here under a new construction.

[00:01:21] Speaker 00:
We did appeal the embedded issue of node, and this court determined that node is a geographic location.

[00:01:28] Speaker 00:
So the district court should have implemented that embedded change on remand, but it chose not to do so.

[00:01:34] Speaker 00:
The last point relates to this court's jurisdiction.

[00:01:37] Speaker 00:
The parties are not responsible for, nor can they bring issues to this court where they believe it doesn't actually affect the outcome of the case.

[00:01:47] Speaker 00:
That's the Jane decision.

[00:01:49] Speaker 00:
Here, we had sufficient non-infringement arguments based upon the original construction.

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We provided those in response to summary judgment.

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And when the parties stipulated on- You can appeal an erroneous construction.

[00:02:05] Speaker 00:
Your honor, we can appeal a faulty construction.

[00:02:08] Speaker 00:
In fact, we did so with the embedded node limitation.

[00:02:12] Speaker 00:
When we look at the aspect of the construction that was most problematic, it was the nodes PJPK section, which the district court decided meant to include all most characteristic nodes and dropping all intermediate nodes.

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If the district court had implemented this court's direction on remand, it would have fixed that issue and the parties would have been able to move on.

[00:02:35] Speaker 00:
And in fact did not do so.

[00:02:36] Speaker 00:
It stuck with its original construction and in fact adopted a more narrow construction in which in order to show infringement, Dr. Adolph had to show not only that only and all the most characteristic nodes be chosen, but that all intermediate nodes be dropped.

[00:02:55] Speaker 00:
And that happened on the first time on remand when the court actually applied its construction under step two.

[00:03:02] Speaker 00:
That's when it became clear.

[00:03:04] Speaker 00:
that it had actually construed its construction in a manner that was more narrowing.

[00:03:09] Speaker 00:
So there's no waiver issue.

[00:03:11] Speaker 00:
And in any event, since there's a revised construction here and the court failed to include NODE, we are here properly before the court with a ripe issue based upon a new construction.

[00:03:23] Speaker 00:
With respect to the problems with the selecting clause, Dr. Adolph believes that a plain and ordinary meaning applies here.

[00:03:31] Speaker 01:
Can you contest the construction from the original Markman?

[00:03:35] Speaker 01:
In the sense of the node, PJP... Selecting from the travel distance data the nodes that are most characteristic of a road segment and dropping the intermediate nodes of that segment whereby the end of one section is the start of the next section.

[00:03:51] Speaker 00:
I'm not sure I understand your honor's question when you say... Did you contest that construction?

[00:03:55] Speaker 00:
We did in the sense that we appeal the term node.

[00:03:59] Speaker 00:
No PJPK.

[00:04:00] Speaker 00:
It's a clause within the selecting clause.

[00:04:03] Speaker 00:
There are several sub clauses within the limitation.

[00:04:07] Speaker 00:
We appealed one of those sub clauses, not all of them.

[00:04:12] Speaker 00:
With respect to the plain and ordinary meaning, Your Honors, we believe the plain and ordinary meaning applies here for several reasons.

[00:04:18] Speaker 04:
How could we possibly have plain and ordinary meaning for this clause?

[00:04:22] Speaker 04:
I mean, it contains a lot of words that don't make sense unless you construe them in the context of the patent.

[00:04:28] Speaker 04:
Your honor, are you really expecting a jury to read that without any direction from the court?

[00:04:34] Speaker 00:
Actually, that's what we're intending to do with our proposal of the plain and ordinary meaning, to use more common language that jurors can approach.

[00:04:43] Speaker 00:
That's different than this concept of claim construction where there's an ambiguity or an issue with the claim that requires that you do something in light of the specification language for the prosecution.

[00:04:55] Speaker 04:
What do you mean use more common language?

[00:04:57] Speaker 04:
You're saying don't construe this and then we're going to get our expert up there to try to sway the jury because we're going to give our own informal construction to them and have them believe us.

[00:05:08] Speaker 04:
Isn't that... I mean, wouldn't we reverse the district court for not construing this and not setting the boundaries of the patent if this language isn't clear?

[00:05:17] Speaker 04:
Your Honor, this gets to... Why don't you talk about why that construction is wrong?

[00:05:22] Speaker 00:
Certainly, Your Honor.

[00:05:23] Speaker 00:
To the point about plain and ordinary meaning, my understanding from this court's jurisprudence is it can modify and simplify the language without deciding that there's lexicography or disavowal.

[00:05:35] Speaker 00:
And that's the plain and ordinary meaning.

[00:05:37] Speaker 00:
And there can be changes to the claim language to make it more approachable to the jury.

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So that's what we're asking this court to do, Your Honor.

[00:05:44] Speaker 00:
The concept of lexicography and disavowal or representations made to the prosecution.

[00:05:50] Speaker 04:
You don't only need claim construction when you have

[00:05:52] Speaker 04:
lexicography and disavowal issues, do you?

[00:05:56] Speaker 00:
Those are the primary examples.

[00:05:58] Speaker 00:
So another is prosecution history.

[00:06:01] Speaker 00:
If there is a representation made in an argument or otherwise to obtain certain claims, then a party can't recover what it has given up.

[00:06:12] Speaker 00:
But those are not the situations here, Your Honor.

[00:06:15] Speaker 00:
We have to look at the specification, the dependent claims, and the entire intrinsic record

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And in this particular situation, it's not appropriate to limit the claim the way that the district court did in light of that intrinsic record.

[00:06:30] Speaker 00:
And that's the claim construction issue that we're putting before the court.

[00:06:34] Speaker 00:
It's a limitation issue rather than a clarification issue.

[00:06:39] Speaker 00:
And I think that's the line that we're trying to walk between plain and ordinary meaning that is helpful to the finder of fact who's dealing with a complex technology, admittedly,

[00:06:50] Speaker 04:
Let's assume I disagree with you and think this needs to be construed.

[00:06:56] Speaker 04:
What's the proper construction?

[00:06:58] Speaker 04:
I don't see you have ever proposed a construction if you want just saying plain and ordinary meaning.

[00:07:06] Speaker 00:
Whether you call that plain and ordinary meaning or a construction, it's a simplification of the language, Your Honor, because we don't believe that further limitation or importation is necessary.

[00:07:16] Speaker 00:
The claim is very deep.

[00:07:17] Speaker 04:
Let me ask you this again.

[00:07:19] Speaker 04:
What's wrong with the district court's construction?

[00:07:22] Speaker 04:
We're in an appellate court, we're reviewing what the district court did.

[00:07:25] Speaker 04:
You have to convince me that the district court is incorrect.

[00:07:28] Speaker 04:
What's wrong with the construction?

[00:07:30] Speaker 00:
It imported limitations that are... Which ones?

[00:07:33] Speaker 00:
The limitations relating to NODE and the limitations relating to the contiguous relationship between sections.

[00:07:42] Speaker 00:
Those are the two erroneous constructions that we were appealing.

[00:07:47] Speaker 00:
Both are embedded within the selecting clause.

[00:07:50] Speaker 00:
With respect to node PJPK, that particular clause, the district court imported and mischaracterized column 10, and it's stated in its analysis of the claim construction.

[00:08:04] Speaker 04:
Can we just talk about the construction?

[00:08:06] Speaker 04:
You know what the construction is.

[00:08:09] Speaker 04:
What language in that construction do you think is wrong?

[00:08:14] Speaker 00:
The language in the construction that is wrong is

[00:08:17] Speaker 00:
all the nodes that are most characteristic of a road segment, and dropping all the intermediate nodes of that segment, whereby the end of one section is the start of the next section.

[00:08:27] Speaker 00:
That is the erroneous part of the construction.

[00:08:31] Speaker 04:
So how would you define data nodes PJ and PK, which define contiguous sections, PJ and PK?

[00:08:40] Speaker 00:
Your Honor, we would define it as selecting at least two nodes,

[00:08:46] Speaker 00:
that define a continuous road segment traveled by the mobile unit.

[00:08:53] Speaker 00:
So two geographic locations, right?

[00:08:56] Speaker 00:
This court has already said that nodes are geographic locations.

[00:08:59] Speaker 00:
That's all that claim one requires.

[00:09:01] Speaker 00:
When we look at the dependent claims, they add additional limitations to section data and additional aspects that should be written down.

[00:09:09] Speaker 03:
Even if we agree with your proposed claim construction, I don't see, and maybe you can help me, how that would create

[00:09:16] Speaker 03:
question of fact on the infringement point.

[00:09:21] Speaker 03:
The TomTom device, as I understand it, we're only talking about it losing a signal when it comes to maybe a dead zone or something like that, or how it stops taking a signal after 10 identical readings, like when you stop at a traffic light and you haven't moved.

[00:09:37] Speaker 03:
And so I don't know how that constitutes selecting.

[00:09:42] Speaker 03:
which is what this claim requires.

[00:09:43] Speaker 03:
So even if I agree with you on everything you say about nodes, the word contiguous and everything else, the way the accused device operates, it's not clear to me how you have any case left for infringement even under the construction you would propose that we adopt.

[00:09:57] Speaker 00:
Your Honor, the device initially captures GPS location positions.

[00:10:02] Speaker 00:
That's travel distance data.

[00:10:03] Speaker 00:
That's section one of the claim.

[00:10:05] Speaker 00:
From there, there is a decision that is made about which of those nodes should be selected for inclusion in section data.

[00:10:12] Speaker 00:
With respect to TomTom's activity on its device, as reflected in the Cayman data format file, TomTom will not select for inclusion in section data certain data points when it doesn't understand whether those data points are both accurate.

[00:10:28] Speaker 00:
That's the example with acquiring two initial data points that the device knows is accurate

[00:10:35] Speaker 00:
in order to start selecting data for inclusion in the section data file.

[00:10:41] Speaker 00:
That's one example.

[00:10:42] Speaker 00:
Another is if you're sitting at a stoplight using a TomTom device and you're sitting there for more than 10 data acquisition points, the device continues to keep that location and log that location information under step one, but it's not included in the section data because it's not

[00:11:02] Speaker 00:
characteristic, right?

[00:11:04] Speaker 00:
It doesn't help us understand the route network and where the car is traveling.

[00:11:09] Speaker 00:
It's a way to compress the data and use usable and useful information and exclude or not select data that the device does not find useful.

[00:11:21] Speaker 00:
Once the car starts moving again and it has at least two good signals, then it will decide to continue to import that information into this section data.

[00:11:33] Speaker 00:
That is a selection activity.

[00:11:35] Speaker 00:
It is an activity that's consistent with the claim.

[00:11:39] Speaker 00:
And it's an activity that's consistent with the specification when it talks about compressing the data and using the useful information relating to the route network.

[00:11:51] Speaker 00:
There are also situations in which there are bad data.

[00:11:53] Speaker 04:
I don't understand how that, what you're describing is selecting data nodes which define contiguous sections.

[00:12:01] Speaker 04:
It sounds like they're

[00:12:03] Speaker 04:
selecting data, if they're selecting data at all, rather than just ignoring the faulty data.

[00:12:09] Speaker 04:
But it doesn't have anything to do with data nodes which define contiguous sections.

[00:12:17] Speaker 00:
Your Honor, when you're talking about contiguous sections, are you talking about within a section or between two different sections?

[00:12:23] Speaker 04:
Well, your claim calls for selecting from the travel distance

[00:12:28] Speaker 04:
data nodes, PJ and PK, which define contiguous sections, PJ and PK.

[00:12:34] Speaker 04:
The fact that they may drop certain things within the section doesn't mean that that's just selecting data nodes that define contiguous sections.

[00:12:44] Speaker 00:
Your Honor, to be clear, when I say drop, I mean there's a decision that's made not to include it within section data.

[00:12:51] Speaker 00:
It still exists there as part of travel data, but it is not selected

[00:12:55] Speaker 00:
for incorporation in the section data file that's ultimately stored to reflect the route network.

[00:13:02] Speaker 00:
That is the non-selecting or dropping activity.

[00:13:08] Speaker 00:
Remember, we have two streams of data.

[00:13:09] Speaker 00:
We have the data that's acquired from the satellite that happens no matter what.

[00:13:13] Speaker 00:
It's collected even if the data is bad.

[00:13:16] Speaker 00:
And TomTom's information tells us that they actually provide an accuracy reading with each and every satellite reading that's recorded.

[00:13:25] Speaker 00:
That's travel distance data.

[00:13:27] Speaker 00:
Not all of that information is selected for long-term storage in the section data file.

[00:13:34] Speaker 00:
And I've given Your Honor examples.

[00:13:36] Speaker 00:
We can talk about it in the context of dropping.

[00:13:38] Speaker 03:
Go well into your rebuttal time.

[00:13:40] Speaker 03:
Would you like to save it?

[00:13:41] Speaker 00:
I will.

[00:13:42] Speaker 00:
Thank you, Your Honor.

[00:13:46] Speaker 03:
Mr. Pandya?

[00:13:53] Speaker 03:
Please proceed.

[00:13:55] Speaker 05:
Good morning.

[00:13:56] Speaker 05:
May it please the court, Brian Pandia on behalf of the Apple eTomTom.

[00:14:00] Speaker 05:
Before I turn to the questions your honor raised, I want to make two points because these themes cut across the appeal.

[00:14:06] Speaker 05:
First, contiguous sections are not continuous points.

[00:14:11] Speaker 05:
Second, failing to record data does not equal selecting data from the travel distance data as the claim requires.

[00:14:21] Speaker 05:
With that in mind, the district court

[00:14:23] Speaker 05:
correctly found that Dr. Adolf's infringement case disregarded the very specific requirements of the type of data that must be selected and how that data is selected.

[00:14:34] Speaker 05:
So the judgment should be affirmed for three reasons, which I'll explain in more detail, but I'll summarize right now.

[00:14:40] Speaker 05:
First, Dr. Adolf converts the claimed contiguous sections into continuous points.

[00:14:46] Speaker 05:
If contiguous sections means multiple connected sections,

[00:14:51] Speaker 05:
not just the points within a single section.

[00:14:54] Speaker 05:
There's no infringement because Dr. Adolph's infringement case is in part based on situations where there are breaks in data recording.

[00:15:02] Speaker 05:
Second, the claim requires, as a matter of law, that two distinct steps are performed.

[00:15:08] Speaker 05:
First, you record a series of nodes or points called travel distance data that represent your traveled sections.

[00:15:17] Speaker 05:
Second, you must select from that travel distance data

[00:15:21] Speaker 05:
the starting and ending point of each section to create section data.

[00:15:26] Speaker 05:
The claim requires an affirmative selection of a starting point and an ending point of each section.

[00:15:33] Speaker 05:
And third, there's no dispute about how the TomTom navigation device operates.

[00:15:38] Speaker 05:
The device records its starting point, and then it records its change in position until the trip ends or its signal is lost.

[00:15:46] Speaker 05:
Now, the only evidence that Dr. Adolf presented to the district court related to mishaps were the TomTom device failed to record data.

[00:15:55] Speaker 05:
The district court correctly found that no reasonable juror could find that failing to record data was the same thing as recording a series of points that form travel distance data and then selecting the two points for each section.

[00:16:11] Speaker 05:
Let me address first the contiguous sections argument.

[00:16:15] Speaker 05:
Contiguous sections and continuous points are two different concepts.

[00:16:19] Speaker 05:
Contiguous refers to multiple sections sharing boundaries.

[00:16:23] Speaker 05:
My left hand is contiguous with my right hand right now.

[00:16:28] Speaker 05:
Continuous refers to one set of points that form a straight line.

[00:16:33] Speaker 05:
Contiguous describes the relationship between the sections.

[00:16:38] Speaker 05:
So the claim requires contiguous sections, not continuous points, for three reasons.

[00:16:43] Speaker 05:
Looking at the plain language of the claim itself, the claim requires selecting from the travel distance data nodes PJ and PK, which define contiguous sections PJ, PK.

[00:16:56] Speaker 05:
The claim requires contiguous sections in the plural, not a single section, not one continuous section.

[00:17:04] Speaker 05:
Second, the prosecution history confirms this understanding of the claim.

[00:17:08] Speaker 05:
Dr. Adolf distinguished

[00:17:11] Speaker 05:
his invention over the Sato prior art reference by saying that, quote, additional sections are stored in a contiguous fashion in order to store the route connecting the initial starting point of the vehicle to the final destination in the same office action.

[00:17:28] Speaker 05:
The quote I just gave was at 8252.

[00:17:31] Speaker 05:
At 8256, Dr. Adolf distinguished another piece of prior art saying that unlike his invention, the prior art reference, quote, does not generate or store any information

[00:17:41] Speaker 05:
relating to the contiguous sections connecting the stored points.

[00:17:46] Speaker 01:
Well, other than metaphysically, I can't imagine that you could have a contiguous section without another section with which it would be contiguous.

[00:18:00] Speaker 05:
Yes, that's correct.

[00:18:01] Speaker 05:
And that kind of goes to the heart of what I'm saying, that because the point of this patent is to first record data where you've traveled,

[00:18:11] Speaker 05:
Then you go back and do the second step.

[00:18:12] Speaker 05:
You analyze those data points to take the key points that connect the route, how you got from point A to point B. So I agree with that.

[00:18:22] Speaker 05:
And it echoes what Dr. Adolph told the district court back in 2013.

[00:18:25] Speaker 05:
He said, and this is at A1413, he said that, quote, by definition, if there was a break in the location reading, such as if the GPS signals lost in a tunnel or otherwise due to a loss of satellite coverage,

[00:18:38] Speaker 05:
The nodes before and after the break in the travel distance data readings would not be contiguous.

[00:18:52] Speaker 05:
I also addressed a couple of comments Ms.

[00:18:53] Speaker 05:
Payden made about how the TomTom device operates.

[00:18:57] Speaker 05:
The parties are in agreement about how the device operates.

[00:19:00] Speaker 05:
The device records the vehicle's starting point, and then it records its change in position every one second or five seconds later.

[00:19:07] Speaker 05:
Now, the three instances that Dr. Adoff presented to the district court were instances where the device failed to record data.

[00:19:14] Speaker 05:
But a mishap, failing to record data is not creating travel distance data, then what?

[00:19:19] Speaker 01:
That was where the tunnel discussion came up.

[00:19:22] Speaker 01:
That was where the tunnel discussion came up.

[00:19:24] Speaker 05:
Correct.

[00:19:24] Speaker 05:
That was one of the instances.

[00:19:26] Speaker 05:
So failing to record data is not the same thing

[00:19:29] Speaker 05:
creating travel distance data than selecting the points to create section data.

[00:19:34] Speaker 05:
Same thing with the argument that the device obtains its GPS signal, then decides to record it.

[00:19:40] Speaker 05:
Well, in that instance, what the claim requires, though, it needs to map to the claim.

[00:19:44] Speaker 05:
And it's first creating travel distance data, a series of points, a series of nodes that represent the sections you have traveled.

[00:19:51] Speaker 05:
Then you select the key points, PJ and PK.

[00:19:55] Speaker 03:
Have you abandoned your waiver argument?

[00:19:58] Speaker 05:
I'm sorry, Your Honor.

[00:19:59] Speaker 03:
Have you abandoned your waiver argument?

[00:20:01] Speaker 05:
We have not.

[00:20:02] Speaker 05:
And so here's the crux of our waiver argument that we briefed.

[00:20:06] Speaker 03:
I don't understand.

[00:20:07] Speaker 03:
You suggest that they waived a claim term that was not subject to the stipulation below.

[00:20:13] Speaker 03:
I have the stipulation here.

[00:20:14] Speaker 03:
It's on 1684.

[00:20:16] Speaker 03:
Correct.

[00:20:16] Speaker 03:
They did not stipulate to non-infringement on the basis of the selecting term.

[00:20:21] Speaker 03:
That was not part of the stipulation.

[00:20:23] Speaker 03:
So the term that's on appeal now,

[00:20:26] Speaker 03:
had no impact on the stipulated judgment below.

[00:20:31] Speaker 03:
And yet you say they waived it.

[00:20:32] Speaker 03:
In fact, I think our case law is very clear that they didn't even have a right to appeal it.

[00:20:39] Speaker 03:
And we could have had the discretion to address it in the interest of judicial economy if we so chose.

[00:20:46] Speaker 03:
But given that it did not form any portion of the basis of the judgment below

[00:20:53] Speaker 03:
I find your argument to be on the borderline of frivolous that they waived it.

[00:20:57] Speaker 03:
So please explain to me why it's not.

[00:21:00] Speaker 05:
Well, here's the reason.

[00:21:01] Speaker 05:
So Tom Tom moved for summary judgment on the terms that the court construed in its claim construction opinion in 2014.

[00:21:08] Speaker 03:
The selecting step was one of the... Yes, you moved for summary judgment, but you didn't follow the summary judgment through.

[00:21:14] Speaker 03:
Instead, you stipulated to a judgment with the court entered that did not depend on that term.

[00:21:19] Speaker 05:
And so we understood that they were challenging the construction of nodes, but not the broader selecting step.

[00:21:26] Speaker 03:
So that's our- That wasn't part of the stipulation.

[00:21:29] Speaker 03:
Why would they challenge on appeal the selecting step when the selecting step formed no basis of the stipulated summary judgment of non-infringement?

[00:21:39] Speaker 05:
Right.

[00:21:40] Speaker 05:
I agree with that.

[00:21:41] Speaker 03:
And how could they have waived it?

[00:21:44] Speaker 03:
How could they have waived their right to appeal now, when it actually affects the outcome,

[00:21:49] Speaker 03:
something that they didn't bring before when it had no impact on the outcome.

[00:21:53] Speaker 05:
Right.

[00:21:53] Speaker 05:
So we understood that by not bringing it forward in the first instance, they were not challenging that construction.

[00:21:58] Speaker 04:
They disagreed with clearly- You mean they waived it at the district court, not on the first appeal?

[00:22:03] Speaker 04:
Right.

[00:22:04] Speaker 04:
They waived it by- I don't see how you read the stipulation that way though.

[00:22:06] Speaker 04:
I mean, honestly, if they had brought up that construction to us on the first appeal, we at least, I think it's likely we would have said,

[00:22:16] Speaker 04:
this is not part of this appeal, you want us to render an advisory opinion and we're not going to do it.

[00:22:22] Speaker 04:
And I think you would agree that if we said that, they'd have the right to preserve that objection and challenge it now.

[00:22:30] Speaker 04:
I would agree with that, yes.

[00:22:31] Speaker 04:
So it seems like your position is they have to ask for an advisory opinion to preserve their right to appeal.

[00:22:39] Speaker 04:
That can't be the law.

[00:22:40] Speaker 05:
That's not the law.

[00:22:41] Speaker 05:
And that's not what we argue.

[00:22:43] Speaker 05:
And maybe I should take the clue and move off this argument.

[00:22:46] Speaker 05:
But our argument is that the stipulation was what we understood those were the terms that they disagreed with in the claim construction opinion.

[00:22:54] Speaker 05:
And by not stipulating on that term, they- Really?

[00:22:56] Speaker 03:
Because the stipulation expressly says at the end that the parties reserve their right to appeal other rulings that don't form the basis for this finding of non-engagement described in this stipulation.

[00:23:07] Speaker 03:
So they expressly reserve their right

[00:23:09] Speaker 03:
to appeal other claim constructions that aren't discussed in the stipulation.

[00:23:13] Speaker 03:
So how could this have, in your mind, represented an understanding that everything not in the stipulation is waived by them, when they expressly reserve the right?

[00:23:24] Speaker 05:
Well, again, the reason it did was in paragraph 8 that said that selecting was one of the terms.

[00:23:30] Speaker 05:
And we thought the disagreement was with the embedded term node, but not with the broader selecting term.

[00:23:37] Speaker 05:
That was why we believe that that was now the law of the case.

[00:23:40] Speaker 05:
But in any event, the court's construction is, I believe it's a correct construction of what selecting requires.

[00:23:48] Speaker 05:
In the couple minutes I have remaining, I'll address that point as to why the district's court's construction of selecting is correct.

[00:23:59] Speaker 04:
Why is the inclusion of the language about dropping the intermediate nodes

[00:24:05] Speaker 04:
of proper construction.

[00:24:07] Speaker 04:
It seems to me the rest of it is okay, but the dropping, the intermediate node, seems to read in things from the specification.

[00:24:14] Speaker 04:
I mean, that's what the invention was supposed to do, but I don't get that necessarily from the claim term itself.

[00:24:22] Speaker 05:
Right, and that's a good question.

[00:24:24] Speaker 05:
And the reason that's correct, though, is it goes part and parcel with the selection.

[00:24:27] Speaker 05:
So this is a two-step claim, and so what you're first recording, the travel distance data, PI, the set of

[00:24:35] Speaker 05:
points PI, then you select the points PJ and PK.

[00:24:39] Speaker 05:
And so the only points that get promoted to section data are the two points PJ and PK.

[00:24:44] Speaker 05:
And as district court said in footnote eight of the opinion, dropping does not necessarily mean that you're deleting the points that are not selected.

[00:24:51] Speaker 05:
Rather, what it means is that those points have not been chosen to be promoted to section data.

[00:24:57] Speaker 05:
They could remain travel distance data.

[00:25:00] Speaker 04:
They could... The dropping is a little imprecise, but what I think you're saying is selecting implicitly means picking out the two points that define the contiguous section and not using the rest of them within that contiguous section.

[00:25:16] Speaker 05:
Yes, that is correct.

[00:25:17] Speaker 05:
Yes.

[00:25:18] Speaker 05:
So what dropping effectively means is that the travel distance data is a whole series of points.

[00:25:23] Speaker 05:
The section data is only the selected points and the points that were not selected that don't

[00:25:28] Speaker 05:
aren't promoted to travel distance data.

[00:25:30] Speaker 05:
They have, in essence, been dropped.

[00:25:35] Speaker 03:
Why isn't that what happens when you come to a stoplight and you have 10 consecutive recordings at the same point?

[00:25:43] Speaker 03:
It ceases to be characteristic of the road traffic just sitting still.

[00:25:47] Speaker 03:
So you all stop recording them, is my understanding.

[00:25:51] Speaker 03:
Why couldn't that, as a factual question, be dropping the intermediate nodes in that segment?

[00:25:57] Speaker 05:
Because in your honors, in that example, you're still recording the points that you're traveling.

[00:26:03] Speaker 05:
So if the device, it stops, records 10 zeros, then the recording shuts off.

[00:26:10] Speaker 05:
So the zeros are never deleted from the device.

[00:26:13] Speaker 05:
Then the device stops recording its data.

[00:26:15] Speaker 05:
It's not what the claim requires.

[00:26:17] Speaker 03:
Well, when you stop recording, why isn't that dropping the intermediate nodes of that segment?

[00:26:22] Speaker 03:
When you stop recording, I don't understand

[00:26:25] Speaker 03:
From a factual standpoint, why it wouldn't be a question for the jury to decide whether stopping to record because you're stationary is, in fact, dropping intermediate note segments.

[00:26:36] Speaker 05:
Well, even if it is dropping intermediate node segments, which it's not because the zeros still remain in the data record.

[00:26:44] Speaker 03:
The zeros do for the first 10, but not 11, 12, 13, or however many more there would have been while you sit stationary.

[00:26:51] Speaker 03:
You drop those.

[00:26:52] Speaker 03:
You do not record them.

[00:26:54] Speaker 05:
Do not record them, correct.

[00:26:55] Speaker 03:
Correct.

[00:26:55] Speaker 03:
So why is not recording them not equivalent to the claim construction of dropping those segments?

[00:27:02] Speaker 05:
Well, even if it is dropping, the problem is it doesn't read on the entire claim.

[00:27:07] Speaker 05:
What the claim requires is first recording travel distance data series of points where you have traveled, then deciding I'm going to select PJ, my starting point, PK, my ending point.

[00:27:16] Speaker 01:
When you move off of a stopped position, the TomTom device then records a signal, a piece of data.

[00:27:32] Speaker 01:
It appeared to me that that piece of data says there are no more zeros.

[00:27:41] Speaker 01:
That is, what it's doing is saving space, in effect.

[00:27:48] Speaker 01:
That it would be continuous zeros until that one, or whatever it would be, I would guess it would be a one, is the next piece of data.

[00:27:59] Speaker 01:
Am I not correct on that?

[00:28:02] Speaker 01:
Yes, you are correct.

[00:28:03] Speaker 01:
So in effect it's saying the data is it would be an infinite number of zeros until we hit one.

[00:28:12] Speaker 05:
Correct.

[00:28:12] Speaker 05:
So what's happening though is you're simply recording where the vehicles traveled.

[00:28:16] Speaker 05:
You're never making an affirmative selection of points PJPK.

[00:28:20] Speaker 05:
You're recording, I travel, I hit a red light, record zeros, I start recording again.

[00:28:25] Speaker 05:
So there's no

[00:28:27] Speaker 05:
There's no selection of the points that define a roadway.

[00:28:30] Speaker 05:
It's simply straight data recording, which the patent admits that in columns one to three.

[00:28:36] Speaker 01:
What I'm saying is if after 10 zeros, your next piece of data is a one, that you've simply recorded all the zeros you choose to record, but it would be infinite zeros.

[00:28:53] Speaker 01:
until that one, and your machine knows that it would be zeros until that one appears.

[00:28:59] Speaker 01:
So you're not, in effect, you are recording.

[00:29:03] Speaker 05:
Correct.

[00:29:03] Speaker 05:
Yeah.

[00:29:04] Speaker 05:
So in effect you are, you're recording zeros and then when the device starts again, you start recording again, but it's not creating travel distance data from which you're then, so what's missing here is still the second step of the claim where you take your whole body of data

[00:29:18] Speaker 05:
And then you extract the PJPK points for each section.

[00:29:22] Speaker 05:
This is just simply it records until it realizes nothing's happening.

[00:29:25] Speaker 05:
Then it device turns back on again.

[00:29:27] Speaker 03:
Do you record at timed intervals?

[00:29:29] Speaker 03:
Is that how the TomTom device works?

[00:29:31] Speaker 03:
Yes.

[00:29:31] Speaker 03:
And what is the time in between intervals for recording purposes?

[00:29:35] Speaker 05:
It's either one second on newer models, five seconds on older models.

[00:29:39] Speaker 03:
Five seconds.

[00:29:40] Speaker 03:
So if you come to a stop sign or a stop light and you're sitting there for a while, it records 10 zeros.

[00:29:45] Speaker 03:
Every five seconds, you're there for 50 seconds.

[00:29:47] Speaker 05:
Okay.

[00:29:48] Speaker 03:
Okay.

[00:29:48] Speaker 03:
So then the next 10 seconds, it's not recording anything, but you're just stationary.

[00:29:52] Speaker 03:
Correct.

[00:29:52] Speaker 03:
Then you start moving.

[00:29:53] Speaker 03:
It does not immediately turn back on, correct?

[00:29:56] Speaker 03:
It could be up to five seconds before it takes the next recorded blip to determine where you are.

[00:30:02] Speaker 03:
So for five seconds, probably doesn't take me longer than that to get across most intersections, it's not recording.

[00:30:08] Speaker 03:
It is not recording, correct?

[00:30:10] Speaker 03:
It then picks me up at the five second interval.

[00:30:13] Speaker 03:
Boom.

[00:30:14] Speaker 05:
Yes.

[00:30:15] Speaker 05:
Yes, so what the device is doing is simply it's recording when you're moving.

[00:30:20] Speaker 05:
It records when you're stopped briefly.

[00:30:22] Speaker 03:
No, it doesn't always record when you're moving, because I moved across the intersection and it wasn't recording for five seconds.

[00:30:28] Speaker 05:
Right, except for that latent period where there was one to four, five seconds where there was nothing.

[00:30:34] Speaker 05:
But the point is, the device, this is just straight data recording, which has existed for a long time as the patent itself

[00:30:43] Speaker 05:
it admits in the specification of the prior art, what's missing here is the affirmative selection of the two points, PJ and PK, for each section.

[00:30:51] Speaker 04:
Is your point essentially that even if the dropping language were in this claim construction, you still wouldn't infringe?

[00:30:57] Speaker 05:
Correct, because we went on, whether it be selecting, dropping, or contiguous, any one is sufficient to affirm.

[00:31:05] Speaker 03:
So can you explain to me contiguous sections, PJ and PK, because numerous times,

[00:31:10] Speaker 03:
You've referred to PJ and PK as two notes.

[00:31:14] Speaker 03:
PJ is one note and PK is a second note.

[00:31:17] Speaker 03:
Correct.

[00:31:17] Speaker 03:
So why isn't contiguous sections, like it talks about in 252 of the prosecution history, the distance traveled between PJ and PK?

[00:31:27] Speaker 03:
That's the contiguous section.

[00:31:30] Speaker 00:
Why?

[00:31:30] Speaker 03:
I mean, I'm having trouble reconciling the plural word sections with the PJ PK.

[00:31:37] Speaker 03:
This is a, it seems to be a proper

[00:31:40] Speaker 03:
noun almost, right?

[00:31:41] Speaker 03:
Continuous sections PJPK.

[00:31:44] Speaker 05:
Right.

[00:31:44] Speaker 03:
I don't know how else to understand it, but PJPK are individual points.

[00:31:48] Speaker 03:
So I'm having trouble understanding the concept of the plural word sections affiliated and linked to the PJPK notion.

[00:31:55] Speaker 05:
Right.

[00:31:56] Speaker 05:
And so let me try to answer that question by referring to what Dr. Adolf said at A252 and A256.

[00:32:03] Speaker 05:
What he said is that the purpose of his invention is you select your sections, and I agree PJPK has to be one

[00:32:10] Speaker 05:
One section.

[00:32:10] Speaker 05:
It has to be one connected section.

[00:32:12] Speaker 05:
But then you form multiple PJPK sections that define the route that you took to get from the start to the end or wherever the trip ends.

[00:32:25] Speaker 05:
And if I could just back up for one second to the traffic light example, too, that the claim requires selecting nodes, not just nodes that are in the travel distance data.

[00:32:38] Speaker 05:
That's what effectively has to happen in the claim.

[00:32:46] Speaker 03:
Where on 252 is it that you were indicating that the word contiguous sections that Dr. Adolf meant that was multiple PJPK sections?

[00:32:59] Speaker 03:
Where is that?

[00:33:00] Speaker 03:
You pointed me to page 252 of the prosecution history.

[00:33:02] Speaker 03:
Correct.

[00:33:04] Speaker 05:
So the bottom of the first paragraph, the sentence that starts with likewise,

[00:33:09] Speaker 03:
That just says, likewise, additional sections are stored in a contiguous fashion.

[00:33:13] Speaker 03:
That doesn't say PJPK represents lots of sections, does it?

[00:33:19] Speaker 03:
You want me to read that prosecution history as requiring multiple PJPK sections?

[00:33:26] Speaker 03:
I thought PJPK is like a proper name.

[00:33:29] Speaker 03:
I thought of it as the nomenclature for a single section.

[00:33:36] Speaker 03:
So I don't understand where you're getting that from that sentence.

[00:33:39] Speaker 03:
Especially because the sentence right before it says, thus the claim specifically claims, in its simplest implementation, it not only records the geographic location of points PJ and PK, but the fact that they are connected to each other, that there is a direction of travel from PJ to PK and a travel distance.

[00:33:58] Speaker 03:
Why isn't that the contiguous sections discussion?

[00:34:05] Speaker 05:
Well, it is a contiguous section.

[00:34:06] Speaker 05:
So with section data, the point here is to record the essence of the route that you've traveled.

[00:34:11] Speaker 05:
So what you're doing here is, of course, PJ and PK have to be connected because otherwise that would not be a traveled section.

[00:34:19] Speaker 05:
But then read in conjunction with the next sentence and how he distinguishes invention over the prior art is additional sections are stored in a contiguous fashion because in order to store a route connecting the initial starting point of the vehicle

[00:34:33] Speaker 05:
to the final destination.

[00:34:35] Speaker 05:
So there are two requirements.

[00:34:36] Speaker 05:
Internally, PJPK has to be a connected section.

[00:34:39] Speaker 05:
But to recreate where you traveled, each of the sections then have to connect together so you know the topology of the route, so you know how you got from A to B to C to D. Do you have anything further?

[00:34:57] Speaker 05:
I do not.

[00:34:58] Speaker 05:
Unless the panel has any further questions.

[00:35:01] Speaker 03:
Let's restore four minutes of rebuttal time.

[00:35:12] Speaker ?:
Ms.

[00:35:12] Speaker 00:
Peyton, please.

[00:35:12] Speaker 00:
Thank you, Your Honor.

[00:35:13] Speaker 00:
I think it's first important to make some of the facts clear.

[00:35:17] Speaker 00:
TomTom's devices are logging GPS locations currently every second.

[00:35:24] Speaker 00:
It used to be every five seconds.

[00:35:26] Speaker 00:
It's since changed.

[00:35:28] Speaker 00:
They are logging it every second

[00:35:30] Speaker 00:
and storing it as travel distance data.

[00:35:33] Speaker 00:
That happens even if the data is bad.

[00:35:37] Speaker 00:
It does not stop if you're at a stoplight or in a tunnel.

[00:35:41] Speaker 00:
It continues and it just records zero, zero, zero, zero for accuracy.

[00:35:49] Speaker 00:
From there, there is a selection activity that occurs.

[00:35:53] Speaker 00:
There is a choice that is made about what data should be stored for the long term.

[00:35:59] Speaker 00:
And sometimes the data is not stored, as in the case of a stoplight, as in the case where we don't have two initial good data points.

[00:36:08] Speaker 00:
That is a selecting activity.

[00:36:10] Speaker 00:
It's consistent with the claim.

[00:36:13] Speaker 00:
It's consistent with the prosecution history.

[00:36:16] Speaker 00:
Whether we call it dropping, meaning not selecting for long-term inclusion, or we call it something closer to selecting, the result is the same.

[00:36:26] Speaker 00:
They have data.

[00:36:28] Speaker 00:
and they choose not to store it for the long term in the section data and thus the section data file.

[00:36:34] Speaker 03:
But is that an intermediate node that's being dropped?

[00:36:38] Speaker 03:
I mean, if you're standing still, nodes are points from one section to the next, right?

[00:36:45] Speaker 03:
PJ is a node, PK is a node, the distance traveled between.

[00:36:49] Speaker 03:
If you are stationary at a stoplight,

[00:36:53] Speaker 03:
And you are not recording data.

[00:36:55] Speaker 03:
You're dropping something.

[00:36:56] Speaker 03:
You're dropping data.

[00:36:56] Speaker 03:
But are you dropping intermediate nodes of a segment?

[00:36:59] Speaker 03:
Because you haven't moved.

[00:37:02] Speaker 00:
You are, Your Honor, because the segment can be defined in a number of different ways as described in the specification.

[00:37:09] Speaker 00:
The PJ could be your starting point when you leave your driveway in the morning and you go to work.

[00:37:17] Speaker 00:
The device chooses not to record data when you're sitting at a stoplight for a period of time.

[00:37:23] Speaker 02:
It doesn't... P.J.

[00:37:24] Speaker 02:
to P.K.

[00:37:27] Speaker 02:
P.J.

[00:37:27] Speaker 02:
is a node.

[00:37:28] Speaker 02:
P.K.

[00:37:28] Speaker 02:
is a node.

[00:37:29] Speaker 00:
Yes, Your Honor.

[00:37:31] Speaker 02:
P.J.

[00:37:31] Speaker 02:
P.K.

[00:37:32] Speaker 02:
is a section.

[00:37:33] Speaker 00:
P.J.

[00:37:34] Speaker 00:
P.K.

[00:37:34] Speaker 00:
is a mathematical designation for a section.

[00:37:37] Speaker 00:
That's right, Your Honor.

[00:37:38] Speaker 02:
What's the next one?

[00:37:40] Speaker 00:
There's another mathematical section.

[00:37:43] Speaker 01:
And what's it called?

[00:37:44] Speaker 00:
P.J.

[00:37:44] Speaker 00:
P.K.

[00:37:46] Speaker 01:
You answered my question.

[00:37:48] Speaker 00:
With respect to, and this is a mathematical concept, your honor.

[00:37:51] Speaker 01:
So your opposing counsel was correct in what he said, when he said the next note is, the next section is PJPK.

[00:37:59] Speaker 00:
It is designated in the patent as another PJPK.

[00:38:02] Speaker 00:
And in fact, if we look at column 10.

[00:38:04] Speaker 04:
I mean, that's implicit in the definition, right, of contiguous, that there has to be more than one section to have a contiguous section.

[00:38:12] Speaker 00:
Well, there's the continuity within a section, right?

[00:38:15] Speaker 00:
And we talk about 252, the prosecution history, where Dr. Adolf talks about the fact that the points PJ and PK are connected to each other, right?

[00:38:26] Speaker 00:
They're within the same section.

[00:38:28] Speaker 00:
And the PJ PK designation is for a section.

[00:38:31] Speaker 04:
Right.

[00:38:32] Speaker 04:
But when you use the plural, contiguous sections, you're implying more than one section that are contiguous to each other.

[00:38:39] Speaker 00:
I actually know, Your Honor, contiguous modifies sections PJ and PK, and then we have step three that talks about storing additional sections, updating the existing section data file.

[00:38:52] Speaker 00:
So the patent envisions a multi-step process in which we continue to build a route network.

[00:38:58] Speaker 00:
We create a section, we store it in the section data file.

[00:39:02] Speaker 00:
We create another section, we store it in the section data file.

[00:39:06] Speaker 00:
I'm sorry, Your Honor?

[00:39:07] Speaker 01:
The next one is contiguous to the prior one.

[00:39:11] Speaker 00:
It can be, but it doesn't have to be, right?

[00:39:14] Speaker 00:
So here's an example of an operating system where TomTom is going around a curve, a cloverleaf, if you will.

[00:39:22] Speaker 00:
That's a situation where you may not have intermediate nodes, but as described in column 10, those are very characteristic nodes that we're looking at because they show an

[00:39:35] Speaker 00:
change of direction, a significant change of direction.

[00:39:38] Speaker 00:
As described in column 10, at least some of the sections include more than two nodes, right?

[00:39:44] Speaker 00:
But that doesn't mean that all of them include more than two nodes.

[00:39:47] Speaker 00:
So we can have situations in which PJPK are the starting node and the ending node as we're going around a turn, and the next section arises as we continue with our change in direction.

[00:40:00] Speaker 00:
But the operative point here is when we talk about the infringement analysis,

[00:40:05] Speaker 00:
We have to understand that as long as the device operates, at some times, under conditions that meet claim one, TomTom infringes.

[00:40:13] Speaker 01:
What the district court did is it turned- Where you didn't answer for me, then, is you're going around the cloverleaf.

[00:40:20] Speaker 01:
Yes, Your Honor.

[00:40:22] Speaker 01:
Why is the next section not contiguous to the prior section?

[00:40:25] Speaker 00:
It is, Your Honor.

[00:40:26] Speaker 00:
That's the point.

[00:40:26] Speaker 00:
That is an operating condition under which the sections are contiguous to each other.

[00:40:31] Speaker 00:
So even if this court finds

[00:40:34] Speaker 00:
that continuity not only exists within each section PJ, PK, but also between sections, there are still operating conditions under which TomTom infringes, even under that construction.

[00:40:47] Speaker 03:
Okay, counsel, I think your time is up.

[00:40:49] Speaker 03:
Thank you.

[00:40:49] Speaker 03:
Thank both counsel for their argument.

[00:40:51] Speaker 03:
The case is taken under submission.