[00:00:07] Speaker 01:
Next case is Trading Technologies versus SunGuard Data Systems et al.

[00:00:13] Speaker 01:
2015, 1767, and 68.

[00:00:18] Speaker 01:
Mr. Borson.

[00:00:20] Speaker 00:
Thank you.

[00:00:22] Speaker 00:
May it please the court?

[00:00:24] Speaker 00:
The lower court's ruling is wrong because the court misunderstood and misapplied what happened in the E-Speed case, which involved the ruling of this court.

[00:00:34] Speaker 00:
In E-Speed, this court affirmed

[00:00:37] Speaker 00:
a narrow construction of static.

[00:00:39] Speaker 00:
I said static means price levels do not move unless they move manually.

[00:00:44] Speaker 00:
The result for literal infringement, an accused product has to provide a mode in which the price levels can only be moved manually.

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In other words, the price levels need to be locked, and they can't be moved automatically.

[00:00:57] Speaker 00:
Such a mode provides what this court found to be the benefit of the term static, a guarantee that the user will get their price if they clicked at the right level.

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We call it the price guarantee.

[00:01:08] Speaker 00:
The construction was narrow because it could be avoided literally by introducing into a mode some risk of automatic movement, even if that risk is somewhat low.

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Now, in the eSpeed appeal, TT tried to broaden that construction.

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That's what we argued.

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TT wanted the construction to include modes in which automatic movement was possible, as long as the price has ever stayed still with hindsight, basically.

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when the market changed.

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This court's affirmed, rejected TT's arguments, and we're stuck TT with that narrow construction, and that's where we're applying error.

[00:01:44] Speaker 00:
Now in eSpeed, the non-infringing products had no mode whatsoever, where the prices were locked and could be subject to automatic movement.

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The user was always at risk of potentially missing their price.

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There was no guarantee, and that was the key for why it wasn't infringing.

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On the other hand, there was another product called Future's View,

[00:02:05] Speaker 00:
that had automatic movement but also had a mode where there was no automatic movement.

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And there was a guarantee in that mode.

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And that was the key why that infringed.

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How that mode was entered and exited, which in that case was through my user setting, was not relevant.

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Now, the accused products here have a static mode.

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And they're not like the non-infringing product in eSpeed.

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They provide, by design, predetermined fixed time periods

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in which the software prevents any alleged automatic movement from occurring.

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In these periods, the software locks the price levels so they can only be moved manually.

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Automatic movement is forbidden in those time periods.

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The prices are permanently kept still in those time periods unless the user chooses to move it.

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The length of the time periods is adjustable by a user, either in a menu setting or an inevitable file, anywhere from 15 minutes to as long as, depending on the version, 68 years.

[00:03:03] Speaker 00:
And the appellees admit that their logic applies equally, regardless of how that's set.

[00:03:08] Speaker 02:
For the 68 years, I take it you'd have to get into the software and alter the config.

[00:03:14] Speaker 00:
It's in our brief.

[00:03:15] Speaker 00:
In early versions, actually, you could enter something in the future path product that would let it go 68 years right in the menu setting.

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In later versions, the more recent version, you'd have to edit a file.

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It's a text file that could be easily edited and enter in.

[00:03:31] Speaker 00:
a number of seconds.

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But it can be done.

[00:03:38] Speaker 02:
But there are lots of instances in which you can modify a particular product in a way that would make it infringing, but that doesn't mean that the person that sells the product is infringing, right?

[00:03:49] Speaker 02:
Well, in this case... High-tech instrumentation, I guess, is the first case that discusses that, but there have been a lot.

[00:03:57] Speaker 00:
Well, in this case, though,

[00:03:59] Speaker 00:
the products, what we're talking about, this fixed time period, whether the user sets it, which could be done in a menu setting in some versions too, off into the years, or whether they use a config file.

[00:04:09] Speaker 00:
No matter what, all versions of the product provide these, by design, fixed time periods in which the price levels are locked.

[00:04:17] Speaker 00:
The most recent products might have it as a 15-minute period in the user setting.

[00:04:22] Speaker 02:
But your position would be the same even if it had a five-second period.

[00:04:27] Speaker 00:
Yes, if you're locking it, the position as we explain it is explained by Mr. Klausner, TT's expert, and he was unrebutted on this, is that there's a separate mode or operational state if that could be perceived by the user.

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And he explained that their product always provides a mode that can be perceived by the user.

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In fact, we're not making this up.

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This was by design.

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This is explained.

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First of all, they have user menus setting windows in their software that let you set this time period.

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We show examples of those on page five of our reply brief.

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It's described in their user manuals and their release notes, this functionality, the very purpose of which is to give the trader the guarantee.

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So we're not artificially drawing lines here around the product.

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It's exactly why they designed to lock it this way.

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Now, of course, a user could set it

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down as low as five seconds, but the evidence showed most users make it the maximum possible that's available to them.

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And in some versions, by the way, in the menu setting, you could go as long as into the years in the menu setting, not just in the config file.

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Now, the lower court thought that what happened, they misapplied what happened in the Eastby case.

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They thought that the reasons for non-infringement there, the court thought the reasons for non-infringement there apply here.

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And the court focused on the fact that

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In the infringing product in eSpeed, the static mode was entered and exited by a user setting.

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But this is a red herring.

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Now, interestingly, the court acknowledged at A16, quote, the fact that the price access is static for a definable period of time.

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That was acknowledged by the court.

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This should have precluded summary judgment of non-infringement.

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But the court went on to require more.

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The court requires that an accused product must, quote, operate solely in an infringing mode,

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And that's at A-16.

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And quote, there needs to be a, quote, setting that the user can elect to go from one mode to another.

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That's at A-19.

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That's the problem.

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There's no basis for what I would call this extra user switch requirement.

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It's not in the construction, and it's not in the law.

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Now, another thing that reveals the court's misunderstanding is at several places in the opinion, the lower court said it believed taken to its logical extreme

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TT's position would cover the non-infringing e-speed dual dynamic product.

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It says that twice in A17 and A18.

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Appellees repeat that argument at page 32 of their brief.

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They say the same thing.

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That is wrong.

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TT's position does not result in the e-speed product infringing, because that product has no mode ever where it locks the prices and there's no possibility of automatic movement.

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So that

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kind of reveals where I think some of the misunderstanding happened.

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Now, importantly, the appellees do not dispute the distinctions between the e-speed product that we show on pages 12 and 14 of our brief.

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We have these diagrams that show the e-speed non-infringing product here are always at risk.

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The current products have these time periods where it's locked and there's no risk.

[00:07:38] Speaker 00:
So what do they argue now?

[00:07:39] Speaker 00:
They argue that the issue of time-based re-centering was already decided in the previous case.

[00:07:47] Speaker 00:
They're making, in effect, a collateral estoppel argument without calling it that.

[00:07:52] Speaker 00:
They actually say that Judge Moran, quote, explicitly addressed and, quote, determined that products with time-based recentering were not static.

[00:08:01] Speaker 00:
That's at page 8 of the brief.

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They say this court, quote, unequivocally ruled, end quote, that these types of products are not static.

[00:08:08] Speaker 00:
That's at page 28 of the brief.

[00:08:10] Speaker 00:
That's just not true.

[00:08:12] Speaker 00:
In the East Beach case, there is no infringement ruling ever.

[00:08:17] Speaker 00:
with respect to a product with time-based re-centering, because there was no product that functioned that way before the court.

[00:08:23] Speaker 02:
But the language used by the court in the Trading Technologies 595F third case was pretty broad, it seems to me, that language such as, in the first place, the re-centering command must indeed occur as a result of a manual entry.

[00:08:41] Speaker 02:
Taking that language by its terms, that would foreclose your argument, would it not?

[00:08:46] Speaker 00:
No.

[00:08:47] Speaker 00:
The construction that was affirmed by this court and everything you talk about was... Just take that language.

[00:08:53] Speaker 02:
Yeah.

[00:08:53] Speaker 02:
That language is inconsistent with your theory of this case, is it not?

[00:08:57] Speaker 00:
No.

[00:08:57] Speaker 00:
Their product has a mode.

[00:09:00] Speaker 02:
No, no, not has a mode.

[00:09:02] Speaker 02:
You're going back to the... Their product has automatic re-centering.

[00:09:07] Speaker 02:
It may not occur very often, and it may occur very predictably,

[00:09:12] Speaker 02:
But if we interpret this sentence, as it seems to me, it's best interpreted to mean re-centering must indeed occur as a result of a manual entry in order to infringe, that doesn't apply to the accused products.

[00:09:30] Speaker 00:
I don't agree with that.

[00:09:31] Speaker 00:
I'd like to explain why.

[00:09:32] Speaker 00:
First of all, in that case, in the Eastby case, the product that was found to infringe also had automatic movement.

[00:09:37] Speaker 00:
The future's view had automatic movement.

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It had a mode where it could not occur.

[00:09:42] Speaker 00:
What this court was addressing in eSpeed in that part of the opinion was, what's the construction?

[00:09:47] Speaker 00:
The construction, it affirmed, is price levels do not move unless they move manually.

[00:09:53] Speaker 02:
But talking about eSpeed, I understood that you could switch it to automatic, you could switch it to manual.

[00:10:00] Speaker 02:
That's not the case here, as I understand it.

[00:10:02] Speaker 00:
The software, by design, you get this done by the software as opposed to a user setting, but by design,

[00:10:09] Speaker 00:
The software for these definable periods locks the process.

[00:10:13] Speaker 02:
Yeah, but if you're running to the definable periods argument, you are not, I think, accepting the notion that this sentence seems to say that it has to be manual in order to infringe.

[00:10:30] Speaker 00:
Why isn't that sentence?

[00:10:31] Speaker 00:
What I read is that the construction said only manual.

[00:10:35] Speaker 00:
To infringe, you need a mode that meets that construction.

[00:10:38] Speaker 00:
And if you have a mode where you lock the prices and do not permit any automatic movement, you only permit manual, which is what the product does, that meets that construction.

[00:10:48] Speaker 02:
Even if it's only for five seconds?

[00:10:51] Speaker 00:
Five seconds.

[00:10:52] Speaker 00:
Unrebutted, Mr. Clauser explained that things in the realm of five seconds are perceivable.

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And we know from FuturePath's own, FuturePath, for example, their default is at 20 seconds.

[00:11:02] Speaker 00:
The default, you can take it up to 60.

[00:11:04] Speaker 00:
Their own documents say the 20 second period is there.

[00:11:07] Speaker 00:
So you don't miss your price.

[00:11:08] Speaker 00:
So that's how they explain it to the users.

[00:11:10] Speaker 00:
Now, I'd like to quickly address doctrine of equivalence as well.

[00:11:15] Speaker 00:
If for some reason someone was to import improperly, in our view, a user switch requirement into the patent, the DOE would still apply and there's no vitiation.

[00:11:28] Speaker 00:
The lower court, again, mistakenly focused on irrelevant facts from the eSpeed case to short circuit a function way resolve analysis.

[00:11:37] Speaker 00:
The key is, in eSpeed, the non-infringing dual dynamic product vitiated because it never gave a guarantee.

[00:11:45] Speaker 00:
It never gave the benefit of the invention ever.

[00:11:47] Speaker 00:
You were always at risk.

[00:11:49] Speaker 00:
Here, their product in the fixed time periods gives the guarantee.

[00:11:53] Speaker 00:
That's undisputed.

[00:11:54] Speaker 00:
Now, in the court, the lower court focused on, well, you may not get the guarantee at the moment of the time-based re-centering, but ignore that during the fixed periods, 15 minutes or greater, your guarantee.

[00:12:07] Speaker 00:
So there's no vitiation here applying the logic from the e-speak case.

[00:12:14] Speaker 00:
And one other thing I'd like to point out is that the lower court's logic and appellee's logic, their approach from a common sense standpoint on the literal is eviscerating static.

[00:12:31] Speaker 00:
It's taking away from what this court's narrow construction left TT.

[00:12:37] Speaker 00:
It left TT that the only way you can infringe is if you provide a mode in which there's a guarantee that you won't miss your price pretty narrow.

[00:12:46] Speaker 00:
Appellees now want to say, well, even if you do that, even if you design the software, whether it's for 15 minutes or 60 years to give you that guarantee and lock the prices, it's still not literally static because we have this defined re-centering event way off into the future.

[00:13:03] Speaker 00:
That makes no sense.

[00:13:04] Speaker 00:
And I see I'm into my.

[00:13:06] Speaker 01:
We will save it for you, Mr. Borsand.

[00:13:09] Speaker 01:
Mr. Levine?

[00:13:12] Speaker 01:
Levine or Levine?

[00:13:13] Speaker 03:
It's Levine, but I've heard it both ways.

[00:13:16] Speaker 03:
I'll respond either.

[00:13:18] Speaker 03:
Or Levine, even.

[00:13:20] Speaker 03:
May it please the court, as Judge Bryson noted, the language in the F95F third case, the appellate court decision by this court in 2010, is pretty broad.

[00:13:32] Speaker 03:
And it's repeated.

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This court said the static limitation forbids all automatic re-centering, that it requires permanency.

[00:13:41] Speaker 03:
The price access never changes without manual re-centering.

[00:13:46] Speaker 03:
And that's true even if it moves automatically, even in rare instances.

[00:13:50] Speaker 03:
And it goes on and on.

[00:13:52] Speaker 03:
And there are a couple key points about that decision.

[00:13:54] Speaker 03:
Number one, the word mode, because the focus of TT's argument, the appellant's argument,

[00:14:02] Speaker 03:
Well, there's a static mode and a automatic mode.

[00:14:05] Speaker 03:
The word mode, I searched for it, never appears once in the Federal Circuit's 2010 decision where it interpreted the claims.

[00:14:13] Speaker 03:
That's something that's come up in terms of this argument.

[00:14:18] Speaker 01:
But in the context of this argument, what does mode mean?

[00:14:21] Speaker 01:
Is it a time setting, a time period, or a setting?

[00:14:25] Speaker 03:
Well, it's something that T.T.

[00:14:29] Speaker 03:
has come up with.

[00:14:31] Speaker 03:
They're trying to say,

[00:14:32] Speaker 03:
that you have a static mode and an automatic mode, but in the product at issue in e-speed, it actually did.

[00:14:39] Speaker 03:
There it wasn't time-based.

[00:14:41] Speaker 03:
There it was, you have a setting where you can turn the automatic re-centering off, and then it was a static mode.

[00:14:47] Speaker 03:
Or you can turn it on.

[00:14:48] Speaker 03:
Here, it's always on.

[00:14:49] Speaker 03:
Automatic re-centering is always on.

[00:14:52] Speaker 03:
But the other point that's really important is

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It's not like there was the E-Speed case where you had claim construction in E-Speed, and then looked at summary judgment in E-Speed, and then it came up here in 2010.

[00:15:04] Speaker 03:
There was consolidation of claim construction in all pretrial issues before Judge Moran.

[00:15:13] Speaker 03:
So the claim construction that this court considered in 2010 was claim construction that Judge Moran arrived at that was not only in the E-Speed case, but our case as well.

[00:15:25] Speaker 03:
And you can see that the very first page of Judge Moran's opinion, which is A757, and the second page, A758, he explains.

[00:15:33] Speaker 03:
Not only do you have all the case numbers there, Judge Moran explains this is consolidated Markman hearing for all the cases.

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And that's important for a few reasons.

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One is we all got to raise, all the defendants got to raise their arguments about what the claims mean.

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in TT got to respond to those arguments.

[00:15:52] Speaker 03:
So you got into the, and what products are at issue doesn't affect what the claims mean.

[00:15:57] Speaker 03:
What the claims, the claims should be the same regardless of what products are being accused.

[00:16:01] Speaker 03:
And eSpeed raised the issue.

[00:16:04] Speaker 03:
Well, what happens in re-centering two seconds versus five seconds?

[00:16:08] Speaker 03:
And Judge Moran considered that and basically said, no, this came up in the initial opinion and in the reconsideration opinion.

[00:16:17] Speaker 03:
Judge Moran said, no, it's got to be never permanent.

[00:16:20] Speaker 03:
A permanent situation where it's static only.

[00:16:24] Speaker 03:
Never have automatic re-centering, which is the very language that this court cited at page 1353 when it noted Judge Moran's construction and said, we agree with it.

[00:16:37] Speaker 03:
That construction's binding here.

[00:16:39] Speaker 03:
That's the construction of this court in 2010 based on the construction of Judge Moran in

[00:16:46] Speaker 03:
all these cases, including this one.

[00:16:49] Speaker 03:
And it's interesting because in the district court claim construction, TT argued, well, if it re-centers, automatically re-centers every five seconds, in other words, time-based re-centering, that if that happens, then what you're going to have is periods of 4.99 seconds where it's static, kind of like their mode argument.

[00:17:13] Speaker 03:
And what the court did is it rejected that argument.

[00:17:17] Speaker 03:
It said, no, for it to be static, it must never automatically re-center.

[00:17:22] Speaker 03:
It must always be the same unless there's manual re-centering.

[00:17:28] Speaker 02:
That was an argument made to this court?

[00:17:30] Speaker 03:
It was an argument made to Judge Moran.

[00:17:33] Speaker 02:
To Judge Moran.

[00:17:34] Speaker 03:
But when TT then, based on the claim construction,

[00:17:39] Speaker 03:
then there was summary judgment.

[00:17:41] Speaker 02:
Do you know whether that argument was made again to this court?

[00:17:46] Speaker 03:
It wasn't made explicitly to this court.

[00:17:49] Speaker 03:
There was some suggestion that under Judge Morant's construction to qualify as a static condition, TT said the price levels could never change positions automatically, but that's made more generally.

[00:18:04] Speaker 03:
The specific argument wasn't.

[00:18:06] Speaker 03:
Of course, TT could have raised it.

[00:18:07] Speaker 03:
I mean, that was up to them.

[00:18:08] Speaker 03:
They were appealing the claim construction, which then was applied by Judge Moran on summary judgment.

[00:18:15] Speaker 03:
But they're on different accused products.

[00:18:17] Speaker 03:
Sure, different accused products.

[00:18:18] Speaker 03:
So that argument may not have been pertinent in that case.

[00:18:20] Speaker 03:
Well, it may not have been, but the claim construction should be the same, regardless of what products are accused.

[00:18:27] Speaker 03:
And given Judge Moran's broad language, which this court adopted, never have any automatic re-centering.

[00:18:35] Speaker 03:
He didn't talk about never be at risk for automatic re-centering.

[00:18:39] Speaker 03:
And this court didn't either.

[00:18:41] Speaker 03:
This court didn't say never be at risk.

[00:18:44] Speaker 03:
It didn't say you always have to have a situation where there's no risk.

[00:18:48] Speaker 03:
It said never, permanence.

[00:18:51] Speaker 03:
Now, let me give you an example that shows the problem, I think, with TTs, the way in which they're carving up the time periods.

[00:19:00] Speaker 03:
Let's say that the automatic re-centering was every 10 milliseconds.

[00:19:05] Speaker 03:
That's pretty quick, right?

[00:19:07] Speaker 03:
And let's say you have an instrument that's traded a lot, such that the prices are changing.

[00:19:12] Speaker 03:
An example that people know generally is Apple, Apple stock.

[00:19:16] Speaker 03:
There's a lot of trading out there.

[00:19:19] Speaker 03:
Under TT's logic, between milliseconds one and nine, you're in a static mode, because you're not going to have re-centering during that little time period.

[00:19:30] Speaker 03:
Of course, to a user, if it's changing every 10 milliseconds, it's like a whirlwind.

[00:19:35] Speaker 03:
I mean, you couldn't even visually see it because it's changing so quickly.

[00:19:39] Speaker 02:
Of course, they're dealing, they will answer, I'm sure, with real-world products that have a minimum of 15 minutes, which somebody surely can appreciate when, A, you can do all sorts of business in 14 and a half minutes, and B, you know when the 15th minute is approaching.

[00:19:57] Speaker 03:
So let me address that.

[00:19:59] Speaker 03:
The 15 minutes is one of the defaults.

[00:20:01] Speaker 03:
And there are two different products here.

[00:20:04] Speaker 03:
They have different default time settings.

[00:20:06] Speaker 03:
What's the shortest?

[00:20:07] Speaker 03:
The shortest is 10 seconds.

[00:20:08] Speaker 02:
10 seconds?

[00:20:09] Speaker 03:
Yes.

[00:20:10] Speaker 03:
It was 10 seconds, 20 seconds.

[00:20:12] Speaker 03:
I think it's 60.

[00:20:15] Speaker 03:
No, 10 seconds, 20 seconds.

[00:20:17] Speaker 03:
60 seconds.

[00:20:20] Speaker 03:
No, 10, 20, 120, and 900 seconds.

[00:20:23] Speaker 03:
900 seconds is 15 minutes.

[00:20:26] Speaker 03:
But the settings adjustable is noted.

[00:20:28] Speaker 03:
And of course, the focus is on the maximum setting.

[00:20:31] Speaker 03:
But there's a minimum setting, too, which is one second.

[00:20:34] Speaker 03:
So if we're talking about real world what you have here, you could have it change every one second.

[00:20:39] Speaker 03:
Now the argument would be, well, between 0 and 0.99 seconds, it's static.

[00:20:44] Speaker 03:
But of course, to a user, that's changing a lot.

[00:20:46] Speaker 03:
So when we're talking about risk of someone getting the wrong order, that's something that certainly could happen one second.

[00:20:54] Speaker 03:
In fact, there's testimony here.

[00:20:56] Speaker 03:
by a customer that you had him missing the right price, missing the order when you had it according to a default in auto-recentering.

[00:21:08] Speaker 03:
Because right when you're clicking that they say, I want to get the order, that happens to be the time when the auto-recentering is happening.

[00:21:14] Speaker 03:
And that was the Earhart testimony.

[00:21:16] Speaker 02:
To be clear, what is the shortest settable time in any of the accused products?

[00:21:23] Speaker 03:
One second.

[00:21:23] Speaker 02:
One second.

[00:21:24] Speaker 03:
Yes.

[00:21:26] Speaker 03:
So there is testimony about how you can get the wrong order.

[00:21:30] Speaker 03:
And the reason is because the user said, this is Mr. Erhart at A 14,079 to 83.

[00:21:36] Speaker 03:
He said he didn't keep a stopwatch.

[00:21:38] Speaker 03:
Even if it's, let's take the 60-second default.

[00:21:42] Speaker 03:
That's one of the defaults there.

[00:21:44] Speaker 03:
He doesn't have a stopwatch saying, boy, it's going to be 60 seconds.

[00:21:47] Speaker 03:
We're coming up to it.

[00:21:48] Speaker 03:
I better not place an order here.

[00:21:49] Speaker 03:
I better be careful.

[00:21:51] Speaker 03:
It just happens.

[00:21:52] Speaker 03:
That's something that, you know, there's actual testimony on that, unlike some of the hypotheticals that the other side's raising.

[00:22:00] Speaker 03:
So what you have here is a situation where you could have the unexpected happening that you could have.

[00:22:07] Speaker 03:
Even if there's a time period that you've set, you don't know exactly when that's coming.

[00:22:12] Speaker 03:
This is important.

[00:22:13] Speaker 03:
There are some later products, ones that aren't at issue in this appeal because they've been settled by the parties involving

[00:22:20] Speaker 03:
It's version 1.1.7 of the quick trade module.

[00:22:28] Speaker 03:
And there, they have a countdown clock.

[00:22:32] Speaker 03:
I think it's when you're in the last 10 seconds.

[00:22:34] Speaker 03:
There's a countdown showing you're about to re-center.

[00:22:37] Speaker 03:
You don't have that in the products at issue in this appeal.

[00:22:40] Speaker 03:
Products at issue in this appeal, there's no countdown clock.

[00:22:43] Speaker 03:
So that auto re-centering can happen when you're just at that time when you're about to place the order.

[00:22:50] Speaker 03:
click, you get the wrong price.

[00:22:52] Speaker 03:
In fact, that's what happened to Mr. Earhart.

[00:23:00] Speaker 03:
I want to briefly talk about the 68-year notion.

[00:23:08] Speaker 03:
Three points there.

[00:23:09] Speaker 03:
One is that, as noted, the defaults are between 10 and 120 seconds, which is how the product is ordinarily used.

[00:23:17] Speaker 03:
Then there are ways to change the settings to make it more.

[00:23:21] Speaker 03:
You could change the settings to make it, depends on the product.

[00:23:25] Speaker 03:
Again, it varies.

[00:23:25] Speaker 03:
900 seconds, 9,999 seconds.

[00:23:28] Speaker 03:
The most you could get, you go out eight digits.

[00:23:32] Speaker 03:
But the testimony from their expert, Mr. Klausner at A9661, as well as our guy who did it, Mr. Gaudier at A976970, is the eight digits didn't work.

[00:23:45] Speaker 03:
They had eight digits there for the number of nines you could put in.

[00:23:48] Speaker 03:
It didn't work, so it came down to a number of days as opposed to years.

[00:23:55] Speaker 03:
But the thing is, so they said, well, you can change it using the quick tr.ini file and get into the changes in the programmable files.

[00:24:08] Speaker 03:
Well, that's changing the product.

[00:24:10] Speaker 03:
Judge Bryson wrote the decision in high tech in 1995.

[00:24:15] Speaker 03:
where it said that a device doesn't infringe simply because it's possible to alter it in a way that would satisfy all the limitations of a patent claim.

[00:24:23] Speaker 03:
And here the key limitation is that you have a static price limit and that someone could come in and change things around to make it really long isn't something that's relevant to the infringement here.

[00:24:36] Speaker 03:
Number two, this is just speculation about what someone could do.

[00:24:41] Speaker 03:
There's no evidence anyone actually went in, went into the files, and changed it.

[00:24:46] Speaker 03:
What you have here is just speculation.

[00:24:48] Speaker 03:
And this court held in a decision where, I think, if I wrote it down right, Judge Bryson was on the panel on this decision, the Dynacor Holdings case in 2004.

[00:24:59] Speaker 03:
Theoretical possibilities in infringement aren't enough.

[00:25:02] Speaker 03:
It's not enough.

[00:25:03] Speaker 03:
Well, someone might be able to go in and change the settings and do it.

[00:25:05] Speaker 03:
There's no evidence.

[00:25:06] Speaker 03:
They could have presented that evidence.

[00:25:08] Speaker 03:
This is in response to some re-judgment motion.

[00:25:10] Speaker 03:
They didn't.

[00:25:11] Speaker 03:
But finally, even if it were 68 years, the court drew the line.

[00:25:17] Speaker 03:
Because how else do you draw the line?

[00:25:18] Speaker 03:
I went through my 10 milliseconds example, how that's difficult.

[00:25:22] Speaker 03:
Even if it's one second, it seems it's absurd to suggest that you could know what's going on.

[00:25:31] Speaker 03:
They have a static period for less than a second.

[00:25:35] Speaker 03:
So the court looked at that and said, you know what?

[00:25:38] Speaker 03:
We draw the line as never.

[00:25:40] Speaker 03:
never having automatic re-centering.

[00:25:42] Speaker 03:
That's the only place you can draw the line.

[00:25:44] Speaker 03:
And why?

[00:25:44] Speaker 03:
Not only do you not get a debate about, is it two seconds?

[00:25:47] Speaker 03:
Is it five seconds?

[00:25:48] Speaker 03:
Is it 12 days?

[00:25:49] Speaker 03:
How do you figure that out?

[00:25:51] Speaker 03:
But you have the prosecution history that this court referred to in the 2010 opinion.

[00:25:56] Speaker 03:
This is at page 1354 of that opinion.

[00:25:59] Speaker 03:
The court said that in the prosecution history, there was a vague and indefiniteness rejection.

[00:26:04] Speaker 03:
The patentee responded.

[00:26:05] Speaker 03:
The values, quote, do not change unless the re-centering command is received.

[00:26:10] Speaker 03:
Based on that, the court said that the claims were allowed based on the understanding that price column did not center itself automatically.

[00:26:18] Speaker 03:
So you already have this question about where to draw the lines already been made by this court, and they drew the line at never.

[00:26:26] Speaker 03:
In claim construction, it was decided in this case, as well as the E-Speed case, and that's what should control.

[00:26:34] Speaker 03:
Finally,

[00:26:36] Speaker 03:
Well, I have a little bit of time.

[00:26:38] Speaker 03:
I want to address two more points.

[00:26:39] Speaker 03:
Quickly on the doctor of equivalence, there is this doctrine that's been noted by this court several times, including the Ogmi text case that Judge Raina was on, the specific exclusion doctrine.

[00:26:53] Speaker 03:
If you have the claim that specifically excludes something, you can't claim the thing that was specifically excluded under the doctor of equivalence.

[00:27:02] Speaker 03:
And here, you have static limitations.

[00:27:06] Speaker 03:
The court interpreted that saying you never, never have automatic re-centering.

[00:27:12] Speaker 03:
The court said, quote, the claim forbids all automatic re-centering.

[00:27:17] Speaker 03:
That's page 1356.

[00:27:19] Speaker 03:
And the relevant standard is, quote, not the frequency of automatic re-centering.

[00:27:23] Speaker 03:
Same page.

[00:27:24] Speaker 03:
So you already have the court saying no automatic re-centering.

[00:27:27] Speaker 03:
So given that,

[00:27:29] Speaker 03:
automatic recentering, all of it specifically excluded, that's not something that can be an equivalent.

[00:27:36] Speaker 03:
Finally, there have been hypotheticals raised by TT in its briefs about, well, someone might turn off the computer and try to reset it, et cetera.

[00:27:48] Speaker 03:
Those aren't features of the software.

[00:27:50] Speaker 03:
Those are ideas, hypotheticals about ways people might try to get around the automatic recentering of the software.

[00:27:57] Speaker 03:
That doesn't make the software itself

[00:27:59] Speaker 03:
infringing, and not to mention the fact there's no evidence to support that people have actually done that.

[00:28:06] Speaker 03:
And similarly on this notion in one of the products about how if you move the mouse pointer that it can cause the automatic recentering to reset, even if it does cause that to reset,

[00:28:21] Speaker 03:
That doesn't mean that it doesn't turn it off.

[00:28:24] Speaker 03:
So you can still, for them to show infringement, they'd have to show someone is moving it, if it's a 60 second delay, which is what Klausner uses as his example, that someone's moving it, not only that first 60 seconds, but the next 60 seconds, the one after that, and the one after that, to delay it all the time.

[00:28:40] Speaker 03:
Because unless they're doing that,

[00:28:42] Speaker 03:
And what you have is, occasionally, if someone doesn't move the mouse pointer, by the way, it's different than a click.

[00:28:48] Speaker 03:
It's mouse pointer movement.

[00:28:49] Speaker 03:
You get to click still.

[00:28:50] Speaker 03:
But they don't move the mouse pointer.

[00:28:53] Speaker 03:
That one time, what comes in?

[00:28:55] Speaker 03:
Automatic re-centering.

[00:28:57] Speaker 01:
Thank you.

[00:29:05] Speaker 00:
The notion that TT's artificially dividing up the product is not true.

[00:29:09] Speaker 00:
It's belied by Appellee's own documents, their user manuals and release notes, which were written by their employees before the lawyers got involved.

[00:29:17] Speaker 00:
If you look at A9546, the future path user manual, it describes time-based re-centering, describes the fixed time periods, and says, quote, in these time periods, quote, the auto center will not take place.

[00:29:30] Speaker 00:
This is in order to protect you, the user, when placing or modifying orders so that the prices will not shift and you accidentally click or drag an order onto a price which was not desired.

[00:29:40] Speaker 00:
On another page of that manual, A9543, they say, quote, the price list remains static while the window is active and you are placing orders.

[00:29:48] Speaker 00:
These are their own documents.

[00:29:50] Speaker 00:
There's no way summary judgment, we're talking about summary judgment here, in favor of the defendants, finding no material of issue of fact, taking all reasonable inferences in favor of TT,

[00:30:00] Speaker 00:
in taking this factual infringement of question away from the jury is proper in light of these documents alone, let alone all the other evidence we talked about.

[00:30:08] Speaker 00:
Now, this idea that while TT didn't prove use, and these are hypothetical scenarios on some of these longer time periods, must be clear.

[00:30:19] Speaker 00:
Use was not at issue, and it's improper to argue that.

[00:30:22] Speaker 00:
Now, the motions for summary judgment from appellees were only on the issue.

[00:30:27] Speaker 00:
Does the term stat read on the product?

[00:30:29] Speaker 00:
A2233 to 34, and 2794 to 95 are their motions.

[00:30:34] Speaker 00:
You could look through the entire docket.

[00:30:36] Speaker 00:
There was no other motion.

[00:30:38] Speaker 00:
So there was no opportunity for TT.

[00:30:40] Speaker 00:
We weren't invited to come in and try to prove issues of use.

[00:30:43] Speaker 00:
That may be an issue for another day related to damages or something else, but not the issue here.

[00:30:49] Speaker 00:
Also, Mr. Levine's right that in Quick Trade, the GL product,

[00:30:55] Speaker 00:
eight digit, 99,999,000 seconds that could be set.

[00:31:00] Speaker 00:
And he's right that there was a bug in the software, then instead of making that be three years, it was 24.7 days.

[00:31:08] Speaker 00:
Guess what?

[00:31:09] Speaker 00:
No one even knew about that bug because it didn't matter.

[00:31:11] Speaker 00:
Because the minute you go out past the day, which people put in the 99999, they even told people in their release notes, tell the users to set 99999 because it won't happen.

[00:31:22] Speaker 00:
It doesn't matter.

[00:31:22] Speaker 00:
Three years, 24 days, five days, doesn't matter.

[00:31:25] Speaker 00:
He's right about that bug, though.

[00:31:27] Speaker 00:
And also, I have to remind the court, too, that some of the claims here are CRM claims.

[00:31:37] Speaker 00:
And so proof of use doesn't even matter.

[00:31:41] Speaker 00:
And then finally, I would invite the court to look, and we've cited this in our briefs,

[00:31:48] Speaker 00:
RCG case from Judge Dow in another court in Illinois, 2002-2009, Westlaw 3055381, where he looked at the exact same issue and got it right.

[00:31:59] Speaker 00:
There was a product that had modes, time periods, with the software automatically switching you out of the modes.

[00:32:05] Speaker 00:
And he said summary judgment of non-infringement was not proper.

[00:32:09] Speaker 00:
We submit that Judge Dow got it right and Judge Ellis here got it wrong.

[00:32:14] Speaker 01:
Thank you, counsel.

[00:32:15] Speaker 01:
We'll take the case under advisory.