[00:00:00] Speaker 03: Five, Unwired Planet versus Appa. [00:00:29] Speaker 03: Please proceed, Mr. Campbell. [00:00:39] Speaker 02: May it please the court. [00:00:40] Speaker 02: John Campbell on behalf of Unwired Planet. [00:00:43] Speaker 02: This court should reverse the district court's grant of summary judgment because the district court erred by resolving genuine issues of material fact in favor of a movement and incorrectly construing two claim terms. [00:00:56] Speaker 02: Using the 446 patent as an example, the district court committed two errors that it repeated. [00:01:02] Speaker 02: First, the district court resolved factual disputes regarding the comparison of the accused products to the properly construed claims in favor of the movement. [00:01:11] Speaker 02: And second, the district court credited the expert testimony of the movement over the expert testimony of the non-movement. [00:01:20] Speaker 02: If we look at the 446 patent, what we find is that facts about error correction [00:01:26] Speaker 02: delay, and dedicated resources turned into summary judgment as to whether Siri uses voice input. [00:01:35] Speaker 02: Now, the district court first construed voice input to require that voice input travels over a voice channel. [00:01:43] Speaker 02: Setting aside that error for a second, the district court then, in the summary judgment context at the record at page A55, asked, what is a voice channel? [00:01:51] Speaker 03: Why don't you move on to your claim construction argument? [00:01:54] Speaker 02: OK. [00:01:55] Speaker 02: So the 446 claim construction, the district court concluded that, as I just mentioned, that the voice channel limitation should be, and this is a quote from the page at 842, voice channel limitation should be included in claims 1 and 31. [00:02:14] Speaker 02: So we weren't really construing voice input, which is fairly plain and ordinary meaning words, but deciding that a voice channel [00:02:25] Speaker 02: should be incorporated into claims 1 and 31. [00:02:28] Speaker 02: Now, this is the wrong approach. [00:02:32] Speaker 02: What should have been done is determine the plain and ordinary meaning of voice input in light of the specification. [00:02:36] Speaker 06: Let me ask you, before you get to that question, for me, there's a preliminary question of what the term voice channel means as it is used in specification in the 446, in your understanding. [00:02:49] Speaker 02: So voice channel is, there's not a definition provided of voice channel. [00:02:54] Speaker 02: But there are a lot of examples provided of how voice is provided to the speech recognition server. [00:03:02] Speaker 06: Let me offer you, as a working hypothesis, is one way of looking at this question. [00:03:10] Speaker 06: You could say, well, a voice channel is not meant to suggest any particular type of technology. [00:03:18] Speaker 06: It is meant to mean simply the channel [00:03:20] Speaker 06: over which voice is traveling, a voice signal is traveling, at a particular time. [00:03:26] Speaker 06: Yes. [00:03:26] Speaker 06: And it may be that certain protocols can carry voice in a way that makes it much more suitable for communication and other protocols not. [00:03:38] Speaker 06: But one could view either one as the voice channel if it's being used for voice. [00:03:47] Speaker 06: have a position with respect to that approach to the term voice channel? [00:03:51] Speaker 02: Your Honor, Judge Bryson, I think that's a very reasoned and proper approach to what a voice channel is in light of the specification of this patent. [00:03:58] Speaker 02: There's no discussion, certainly no discussion limiting it to the characteristics the district court required. [00:04:04] Speaker 02: And in fact, very much in line with what Your Honor just said, the patent describes using devices that have voice capabilities, such as a PDA or a [00:04:16] Speaker 02: or a handheld computer. [00:04:18] Speaker 02: And if those devices use their voice capabilities, then they're simply transmitting voice over a channel. [00:04:27] Speaker 02: There's no requirements, as the district court put on it, for there to be the characteristics of setting up a phone call with two participants. [00:04:36] Speaker 02: In fact, what the requirements that the district court placed on [00:04:42] Speaker 02: really don't make any sense in the context of this invention. [00:04:45] Speaker 02: What your honor's interpretation makes much more sense. [00:04:50] Speaker 02: Because you're not going to have what the district court said at A57. [00:04:58] Speaker 03: Would you agree with the statement that the voice communication channel as disclosed in this patent is just a data channel? [00:05:08] Speaker 03: All it is is just the data channel that transmits the voice. [00:05:12] Speaker 03: It doesn't have to be voice specific. [00:05:14] Speaker 03: It could be a regular data channel. [00:05:17] Speaker 02: Well, it has to have voice information, right? [00:05:21] Speaker 02: So it does have to carry voice. [00:05:23] Speaker 03: Well, can't all data channels carry voice? [00:05:26] Speaker 02: Certainly, I think they can. [00:05:27] Speaker 02: I don't know of any limitation on that. [00:05:29] Speaker 02: Certainly, we have today voice over IP services. [00:05:34] Speaker 06: Well, I guess in the district court, you offered, I think, if I recall correctly, [00:05:39] Speaker 06: an example of something that wouldn't really be what you mean by a voice channel, even though it's technically carrying voice, which would be sending by data a downloaded version of an oral argument, let's say, in the court. [00:05:54] Speaker 02: Fair enough. [00:05:54] Speaker 06: You're right. [00:05:55] Speaker 06: We did. [00:05:55] Speaker 06: I guess one could say that's not really voice. [00:05:57] Speaker 02: Right. [00:05:58] Speaker 02: That's not really exactly. [00:05:59] Speaker 02: That's not really voice, right? [00:06:01] Speaker 02: It's a recording. [00:06:02] Speaker 02: If I go later and download the oral argument from this, that's not really [00:06:07] Speaker 02: transmitting voice so much I mean it is certainly not at least in the sense that this patent uses the term communication correct correct so so there there does need to be to be something to it but it certainly doesn't need to be as the district court required particular error correction 20 millisecond delay [00:06:25] Speaker 02: and dedicated resources. [00:06:26] Speaker 02: Those requirements simply don't make sense in the context of this patent. [00:06:30] Speaker 03: But do you agree that claim one, at least, if not claim 35, does require two separate channels? [00:06:39] Speaker 03: One channel, a first communication path over which data, the voice will be sent, and a second channel, a second communication path over which the data will be sent back to the user. [00:06:53] Speaker 02: certainly separate paths, a first communication path and a separate communication path. [00:06:59] Speaker 02: That's not necessarily required. [00:07:01] Speaker 02: A path is not necessarily a channel. [00:07:03] Speaker 02: But there's certainly got to be two different paths. [00:07:06] Speaker 02: A path where voice goes to the voice recognition server and a path where the what is called the symbolic data file comes back to the device. [00:07:15] Speaker 02: But what Your Honor is noting is that the claims use different language and require different things at different times. [00:07:22] Speaker 02: Claim 21 requires a voice communication channel. [00:07:25] Speaker 02: Claim 1 requires a communication path. [00:07:28] Speaker 02: Claim 31 has no limitation on this. [00:07:32] Speaker 02: Under the district court's interpretation that requires a voice communication channel because of certain sentences after sentences that talk about the present invention, we would have to put in the data channel in every claim. [00:07:46] Speaker 02: And yet the data channel or even a second path is not even part of every claim. [00:07:50] Speaker 02: But that would then be required under the district court's analysis as well to be put into every claim. [00:07:56] Speaker 02: The invention here, to get back, Judge Moore, to the claim construction, the present invention here is not a voice channel. [00:08:04] Speaker 02: The present invention is a speech recognition server that allows the mobile device to have speech recognition capabilities. [00:08:11] Speaker 02: There are about 40 times that the words present invention, the invention, or this invention appear in this specification. [00:08:21] Speaker 02: Only twice in one of those sentences does the word voice channel appear, and in both they're limited to one embodiment. [00:08:28] Speaker 02: It explicitly says that is just one embodiment of the present invention in those instances. [00:08:35] Speaker 02: This is not a case where, as in vernetics, the phrase one embodiment was mechanically prefaced throughout the specification. [00:08:44] Speaker 06: I'm sorry. [00:08:46] Speaker 06: No, no, please. [00:08:49] Speaker 06: The most problematical aspect for you, I think, of the specification is the beginning of the Summary of the Invention, where the two first sentences can certainly be read as being part of the same expression. [00:09:03] Speaker 06: And there, voice channel, communication channel is used. [00:09:08] Speaker 06: And if you take the present invention, that would suggest that [00:09:14] Speaker 06: voice communication channel is a necessary part of the whole invention, which is to say all claims. [00:09:22] Speaker 02: Your Honor, there's two problems with that. [00:09:24] Speaker 02: First is that if you take that logic, you can't stop at voice communication channel. [00:09:28] Speaker 02: You then have to put in data communication channel, because that's part of that paragraph as well. [00:09:34] Speaker 02: You have to put in review and editing the symbolic data file, because that's part of that paragraph as well. [00:09:39] Speaker 02: So now you have to put in a number of limitations that are not in the other claims. [00:09:43] Speaker 02: The second issue is that if you look at the specification as a whole, again, there are eight instances where the patent talks about present invention, the invention, this invention, doesn't use embodiment language. [00:09:59] Speaker 02: And it specifically talks about a speech recognition server each and every time. [00:10:05] Speaker 06: Of course, I guess if you view voice communication channel as being nothing more than [00:10:10] Speaker 06: a channel over which voice is being sent at a particular time, regardless of the protocol, then that problem goes away. [00:10:16] Speaker 02: It does. [00:10:17] Speaker 02: Part of the problem is how you view voice channel. [00:10:20] Speaker 02: And if you put these requirements that the district court put on it, then voice channel shouldn't be part of the construction of voice input, regardless. [00:10:28] Speaker 06: Now, to be sure that I understand the distinction that you're drawing between the voice channel and the data channel in the examples, I figure one, I guess, [00:10:40] Speaker 06: We're talking about the voice channel is 128 and the data channel would be what? [00:10:48] Speaker 02: The. [00:10:49] Speaker 02: I think the voice channel is 126. [00:10:51] Speaker 06: I'm sorry, 126. [00:10:52] Speaker 06: That's right, and the data channel is 128. [00:10:55] Speaker 06: Yes, I got the numbers wrong. [00:10:57] Speaker 06: And that's, so the voice channel is defined by the fact that a voice signal is being sent over that channel. [00:11:07] Speaker 06: Correct. [00:11:08] Speaker 06: And the data channel data with respect to data. [00:11:12] Speaker 02: That's correct. [00:11:14] Speaker 02: That's correct. [00:11:15] Speaker 02: That's right, Your Honor. [00:11:16] Speaker 03: Could I ask you to move on to the 092 patent and the issue of... Induced infringement and knowledge. [00:11:25] Speaker 02: Yes, Your Honor. [00:11:26] Speaker 02: I'd be happy to. [00:11:27] Speaker 02: So for the 092 patent, the district court applied what is an objective test in deciding that Apple could not have [00:11:36] Speaker 02: Apple had a strong enough argument to avoid liability under induced infringement. [00:11:41] Speaker 02: And what the district court said is that although it rejected Apple's non-infringement argument, it said that argument was strong enough at A65. [00:11:53] Speaker 02: not the appropriate test under inducement. [00:11:55] Speaker 03: Global Tech says took deliberate steps to avoid knowing the fact. [00:12:02] Speaker 03: Correct. [00:12:02] Speaker 03: So what is the evidence that Apple took deliberate steps to avoid knowing the fact of infringement? [00:12:09] Speaker 02: Well, there are facts from which a juror could reasonably infer they took deliberate steps. [00:12:15] Speaker 02: We know at the record at A3478 that Apple told Unwired Planet [00:12:21] Speaker 02: on why our planet's executive, we know what's in your portfolio. [00:12:24] Speaker 02: We know what you've got. [00:12:25] Speaker 02: We don't need to talk about it. [00:12:27] Speaker 02: We know that in fact. [00:12:29] Speaker 03: We know what's in your portfolio. [00:12:31] Speaker 03: At most, arguably could be inferentially, we know what patents are in your portfolio. [00:12:38] Speaker 03: Yes. [00:12:39] Speaker 03: How is that deliberate steps to avoid knowing the fact of infringement? [00:12:45] Speaker 03: It seems like you're like almost at inferences squared at this point. [00:12:49] Speaker 02: Well, let me finish the facts, and hopefully we won't be at emphasis square. [00:12:52] Speaker 02: So we've got that. [00:12:55] Speaker 02: Then we know sometime later in February 2012, Apple files an information disclosure statement with the Patent Office identifying the 092 patent. [00:13:05] Speaker 02: So now we know Apple knows enough about it, they want to disclose it to the Patent Office in context of one of their patent applications. [00:13:13] Speaker 02: Then we know from the record. [00:13:14] Speaker 03: So again, possibly [00:13:17] Speaker 03: conveys notice to Apple of the 092 patent. [00:13:22] Speaker 03: But what I'm trying to get you to focus on are the deliberate steps that Apple took to avoid knowing about its infringement of that 092 patent. [00:13:33] Speaker 02: Yes, Your Honor. [00:13:33] Speaker 02: I'm not going to have one fact. [00:13:35] Speaker 02: I've got to have three. [00:13:36] Speaker 03: But neither of those others help you at all. [00:13:38] Speaker 03: No, but I've got one more. [00:13:39] Speaker 03: Oh, good. [00:13:40] Speaker 02: So we know from the record at A12830. [00:13:46] Speaker 02: that Apple's 30B6 witness on behalf of Apple. [00:13:49] Speaker 02: 12830. [00:13:51] Speaker 02: OK. [00:13:51] Speaker 02: That Apple's 30B6 witness on behalf of Apple testified that Apple had not seen or reviewed the 092 patent. [00:14:02] Speaker 02: Now a reasonable juror. [00:14:04] Speaker 03: That would turn global tech on its head. [00:14:08] Speaker 03: OK. [00:14:09] Speaker 03: If simply knowing about a patent [00:14:13] Speaker 03: But failing to do an infringement analysis of it were sufficient? [00:14:18] Speaker 03: I don't see how that can be reconciled with the Supreme Court's decision that you have to take deliberate steps to avoid knowing a fact. [00:14:27] Speaker 03: Your proposition would result in every patent that you know of meeting the fact that you acted willfully blindly of infringement. [00:14:38] Speaker 02: Well, I don't think it would go that far, Your Honor. [00:14:42] Speaker 02: How? [00:14:42] Speaker 02: Well, because here you have specific circumstances. [00:14:51] Speaker 02: You have a negotiation going on between two parties for a license, where one party says, we know what's in your portfolio. [00:14:59] Speaker 02: We know what you've got. [00:15:02] Speaker 03: But you did provide them with a list of patent numbers, and the 092 was not one of the ones on that list. [00:15:10] Speaker 02: True, Your Honor. [00:15:11] Speaker 02: That's exactly right. [00:15:12] Speaker 02: It was not. [00:15:13] Speaker 02: They told Unwired Planet, they told us, we know what you've got. [00:15:16] Speaker 06: But that just gets you knowledge of the existence of the patents at most. [00:15:20] Speaker 06: Where's the second step, which is the one on which most people stumble? [00:15:26] Speaker 02: Well, they clearly know enough [00:15:28] Speaker 02: that they feel they have to disclose it to the Patent Office in an information disclosure statement. [00:15:33] Speaker 06: That doesn't tell us much about whether their device in this case infringes that patent, or that they believed it, or they had every reason to think it did and then took steps, affirmative steps, to keep from finding out. [00:15:47] Speaker 06: I'm not seeing any affirmative steps. [00:15:49] Speaker 02: Your Honor, they took the affirma- even once they had been sued for infringement, they took the affirmative steps [00:15:58] Speaker 02: to stick their head in the sand and have no one, no one take a look at this. [00:16:03] Speaker 02: They can't. [00:16:04] Speaker 02: Well, that means just, well, go ahead. [00:16:06] Speaker 02: Good faith, as this court said to Smith and Nephew, is a fact question. [00:16:09] Speaker 02: And whether they have good faith when they stick their head in the sand and say, we're not even going to look. [00:16:14] Speaker 02: We've been sued, but we're not even going to look. [00:16:16] Speaker 02: We knew about it from negotiations. [00:16:17] Speaker 02: We knew about it to tell the Patent Office. [00:16:19] Speaker 02: We've been sued. [00:16:20] Speaker 02: But now we're not even going to take a look at this. [00:16:24] Speaker 02: That's sticking your head in the sand, and that's willful blindness. [00:16:28] Speaker 06: There were some allusions in, I guess it was your, no, maybe it was in the appellees brief, to the fact that we were really only talking about pre-suit infringement. [00:16:40] Speaker 06: Where are we on that? [00:16:42] Speaker 06: Because obviously, at least with respect to knowledge of the patents, once there's a lawsuit, they have knowledge of the patents. [00:16:48] Speaker 02: Induced infringement was alleged for [00:16:51] Speaker 02: a full period, both pre-suit and post-suit. [00:16:54] Speaker 06: Was it clear that there was no distinction drawn with respect to the pre or post-suit element here? [00:17:03] Speaker 02: I don't recall a distinction being made. [00:17:06] Speaker 02: So I think in that sense, I guess it was clear if there was no distinction being made. [00:17:14] Speaker 03: So I think I probably [00:17:20] Speaker 03: Like Judge Bryson, I'm curious about what your precise argument is. [00:17:26] Speaker 03: Because in your blue brief, then their red brief, and then even in your gray brief at page 25, your header is, Apple had pre-suit knowledge of the patent. [00:17:35] Speaker 03: And I guess I thought, obviously wrongly so, that your header defined the nature of what you were arguing. [00:17:44] Speaker 03: Because nothing thereafter, you never rely. [00:17:49] Speaker 03: Let me ask you, because I must be missing it. [00:17:51] Speaker 03: Where do you rely on post-suit knowledge and failure to investigate? [00:17:59] Speaker 03: Because everything in your reply brief that I can see is about pre-suit knowledge, your header and all the discussion. [00:18:07] Speaker 03: So I guess I thought this was a whole world about pre-suit stuff. [00:18:13] Speaker 02: Your Honor, we believe that the facts are sufficient [00:18:16] Speaker 02: that a reasonable juror could find pre-suit knowledge. [00:18:20] Speaker 06: But it would be a lot easier in terms of knowledge of the patent post-suit, or at bare minimum post-amended complaint. [00:18:29] Speaker 02: Fair enough, Your Honor. [00:18:30] Speaker 06: So I was a little surprised that in discussing knowledge, there was no allusion to that, and therefore assumed, perhaps, that you were really only talking about pre-suit. [00:18:42] Speaker 02: Your Honor, I think that the fact [00:18:44] Speaker 02: The fact of when the knowledge was, what we were focusing on, at least, was the circumstance where Apple was alleging that a litigation defense could somehow become a get out of jail free card for induced infringement. [00:19:00] Speaker 02: Because if that's the case, that's going to happen in at least every case I've been a part of. [00:19:06] Speaker 02: There's always a defense. [00:19:09] Speaker 03: Where do you argue this post [00:19:11] Speaker 03: Suiting in your brief at page 30 at the end you say the issue is Apple's subjective pre-suit beliefs The issue that's what you tell us and I don't see anything in this great brief not a word About post-suit knowledge and failure to investigate. [00:19:26] Speaker 03: So where did you argue that to us? [00:19:29] Speaker 03: Your honor You define the issue in your header and in your conclusion everywhere in and it's only pre-suit. [00:19:36] Speaker 03: Did you anywhere in [00:19:37] Speaker 03: I mean, you may have. [00:19:39] Speaker 03: This is a complex case. [00:19:40] Speaker 03: There's a lot of it. [00:19:40] Speaker 03: It's like four cases, you know, and I get that. [00:19:43] Speaker 03: So did you ever argue anywhere to us? [00:19:46] Speaker 03: I mean, anywhere to us that, OK, even if we have an established pre-suit, that there is post-suit evidence because they had knowledge, at least at the time of the amended complaint, because that's when 092 really came into this, right, and the allegations of infringement. [00:20:04] Speaker 03: So at that point forward, [00:20:07] Speaker 03: Did you ever argue that? [00:20:09] Speaker 02: Your Honor, the focus was on the subjective person. [00:20:12] Speaker 03: I'm not asking what the focus was on. [00:20:13] Speaker 03: I said, did you ever make that argument? [00:20:15] Speaker 02: Because of the focus being. [00:20:16] Speaker 02: Yes or no question. [00:20:18] Speaker 02: No, I will look at the record. [00:20:19] Speaker 02: I'm not aware of it. [00:20:20] Speaker 02: I'm not aware of a distinction of post-suit, pre-suit. [00:20:24] Speaker 03: Well, you made the distinction repeatedly in your brief. [00:20:26] Speaker 03: You said the issue is their pre-suit knowledge. [00:20:28] Speaker 03: You didn't say the issue is their knowledge. [00:20:30] Speaker 03: So you made that argument. [00:20:32] Speaker 03: You framed the issue. [00:20:33] Speaker 03: Yes, Your Honor. [00:20:35] Speaker 03: OK. [00:20:35] Speaker 03: All right. [00:20:36] Speaker 00: I don't want to let you cover anything else. [00:20:39] Speaker 00: But did the district court make its decision based on the pre-suit activities, pre-filing activities, or the post-filing activities? [00:20:46] Speaker 02: Neither, Your Honor. [00:20:47] Speaker 02: The district court made its decision based on a belief that their litigation non-infringement argument was strong enough. [00:20:56] Speaker 00: That's what I mean. [00:20:56] Speaker 00: And that's post-filing. [00:20:59] Speaker 00: The court focused on post-filing. [00:21:01] Speaker 00: Whether you argued it or not, it seems to me that the court focused on [00:21:05] Speaker 00: on Apple's non-infringement arguments? [00:21:10] Speaker 02: There was no discussion from the court or recognition from the court that it made any distinction of when the argument came up. [00:21:19] Speaker 02: It just felt objectively the argument was strong enough to overcome induced infringement. [00:21:24] Speaker 02: There was no focus on the court of the timing of the argument as to whether this would apply [00:21:29] Speaker 02: post-suit or pre-suit or at what time it would apply. [00:21:33] Speaker 00: So when I look at the Apple's non-infringement arguments, it seems to me that they go more towards direct infringement. [00:21:41] Speaker 00: And the argument isn't directed towards the divided infringement. [00:21:48] Speaker 02: That's correct, Your Honor. [00:21:49] Speaker 02: Their arguments were focused on direct infringement. [00:21:51] Speaker 00: Because the court doesn't say anything about any of the other actors. [00:21:55] Speaker 00: Correct, Your Honor. [00:21:56] Speaker 02: The court does not focus on any of the other actors. [00:21:58] Speaker 02: There was a summary judgment on direct infringement. [00:22:00] Speaker 02: The district court granted that. [00:22:02] Speaker 02: And the district court then, without regard to the timing, said that that argument was strong. [00:22:07] Speaker 00: So the issues related to the third party contractors and the users, those issues are still on the table. [00:22:15] Speaker 00: They were left out of the... I can't see in the decision that the court even addresses those issues. [00:22:22] Speaker 02: The district court didn't address those issues because the district court [00:22:25] Speaker 02: felt that objectively, because the defense was strong enough, that was sufficient to absolve induced infringement period. [00:22:35] Speaker 02: So it was a focus on the objective versus the subjective. [00:22:39] Speaker 06: I recognize that the court alluded to the, at least arguably, objective strength of Apple's non-infringement argument. [00:22:47] Speaker 06: The court didn't say a whole lot on this point. [00:22:49] Speaker 06: This is the one sentence in the court's opinion. [00:22:52] Speaker 06: Otherwise, pretty thorough opinions, but pretty brief on this. [00:22:55] Speaker 06: But I'm wondering whether it's fair to read that as reflecting on the likelihood that Apple had a subjective view that there was not a strong case of infringement. [00:23:12] Speaker 06: Because certainly there is a relevant, the objective strength of the infringement case is relevant, at least, to the subjective view of the party that's in issue, isn't it? [00:23:25] Speaker 02: I do think it's relevant, yes. [00:23:26] Speaker 02: But I think because it's a good faith, because it's a subjective test, we have a fact issue as to whether Apple believed that in good faith or whether that [00:23:38] Speaker 02: whether that came up in litigation, and the district court just simply doesn't address that. [00:23:43] Speaker 06: Well, I guess the way the district court characterizes it says that a reasonable jury could not conclude that Apple was willfully blind to infringement, and then says because there was no high probability of wrongdoing, given the strength of Apple's non-infringement argument, which suggests to me at least one way of reading that is to say that given that Apple had a very strong position [00:24:08] Speaker 06: as the judge assessed it on non-infringement, that the likelihood was that no one was going around hiding the ball. [00:24:17] Speaker 06: They didn't need to. [00:24:18] Speaker 06: That's the argument. [00:24:20] Speaker 02: I think that's probably the fairest inference for trying to say that the district court didn't apply an objective test to try to fit this into a subjective. [00:24:30] Speaker 02: The problem with that is there's still a good faith element as to whether it's believed. [00:24:34] Speaker 02: And that's an issue of fact. [00:24:36] Speaker 02: And as this court held in Smith and Nephew, [00:24:38] Speaker 02: even when the district court had announced summary judgment was appropriate, whether the induced infringer believed that there was still an issue of fact there, even with a pronouncement from the district court that that was there. [00:24:52] Speaker 02: So certainly, if we take that a step backward, and we don't even have a pronouncement, but we decide that the defense is strong enough, there still has to be a fact issue as to whether Apple, in good faith, believed that argument to absolve them of induced infringement. [00:25:09] Speaker 03: Could I ask you to just quickly address your hash argument? [00:25:12] Speaker 02: Yes, Your Honor. [00:25:14] Speaker 02: So for the 260 patent, that comes up. [00:25:18] Speaker 02: There's two alternative arguments. [00:25:20] Speaker 02: That comes up under the less than 15 minutes scenario. [00:25:24] Speaker 02: And what is happening there is in that scenario, the byproduct transaction is sending what is called an X token, which is a hash of the password. [00:25:35] Speaker 02: It's a mathematical function applied to the password [00:25:38] Speaker 02: to secure the password. [00:25:41] Speaker 02: The information is still the same. [00:25:43] Speaker 02: The information is still the password. [00:25:46] Speaker 02: We've just secured that information in a way where we apply a mathematical function to it called a hash and send that to Apple's servers so that that is what they receive. [00:26:00] Speaker 02: It's the same user information, whether there's the hash applied and it's secure or not secure. [00:26:05] Speaker 03: I'm simplifying it so that you change the password into a number. [00:26:11] Speaker 02: I'm simplifying. [00:26:11] Speaker 02: OK. [00:26:13] Speaker 02: I'm sorry. [00:26:13] Speaker 02: I want to say yes or no, but your password could have been a number. [00:26:16] Speaker 02: So you may change it from one number to another. [00:26:18] Speaker 06: It's an alphanumeric sequence of many characters, all of which are all hashes of the same length. [00:26:24] Speaker 06: Yes. [00:26:25] Speaker 06: Is it fair, also a simplistic way of putting it, but just to get a handle on this, is it fair to say that that is essentially an encrypted version of the passwords, which just happens to be encrypted in a way that doesn't make it easy to decrypt? [00:26:43] Speaker 02: Yes, it is. [00:26:44] Speaker 06: Unless you're the FBI. [00:26:46] Speaker 02: Maybe the FBI can do that. [00:26:48] Speaker 02: I'm not sure if the FBI can, but yes, that's fair to say. [00:26:51] Speaker 02: A hash is unique to a user, correct? [00:26:54] Speaker 02: A hash will be unique to a user, yes. [00:26:56] Speaker 02: Okay, so what information does a hash contain? [00:27:00] Speaker 02: A hash contains, well, you can't go backwards as Apple points out, okay, but a hash is a mathematical function applied to the user's password at a particular time of day so that it only is good for 15 days. [00:27:15] Speaker 02: Does it contain any information on the user? [00:27:19] Speaker 02: It is the user's password in a secure form. [00:27:24] Speaker 02: We've just applied a mathematical function to the password. [00:27:27] Speaker 03: Is it kind of like with my kids when they were little? [00:27:28] Speaker 03: We used to spell things, so they didn't know what we were talking about. [00:27:31] Speaker 02: Kind of like that. [00:27:32] Speaker 02: It's the same information, but they don't know what you're talking about. [00:27:35] Speaker 02: And at that stage of their life, they can't work backwards to it. [00:27:40] Speaker 03: All right. [00:27:40] Speaker 03: Thank you. [00:27:41] Speaker 03: I think that we should give Mr. Perry his 15 minutes. [00:27:45] Speaker 03: I'm sure you'll have 15 minutes. [00:27:47] Speaker 02: Thank you. [00:27:49] Speaker 03: That was a joke. [00:27:50] Speaker 03: You have longer. [00:27:52] Speaker 03: We went way over with him. [00:27:55] Speaker 03: So I need to feel constrained by your 15 minutes. [00:27:59] Speaker 01: Thank you, Judge Moore. [00:28:00] Speaker 01: I may please the court. [00:28:02] Speaker 01: I'll start, if I may, with the 446 patent, as my friend did. [00:28:08] Speaker 01: The summary of the invention describes the present invention as a speech translation system. [00:28:15] Speaker 01: It translates, quote, voice input. [00:28:17] Speaker 01: And the translation process begins by establishing a voice communication channel. [00:28:23] Speaker 01: That's it. [00:28:24] Speaker 01: column 2 on page A192. [00:28:27] Speaker 01: I take it Unwired Planets does not dispute the general principle from this court that the present invention language can be limiting. [00:28:35] Speaker 01: It does not dispute the district court's determination that importing that limitation into the voice input element does not render any part of the specification nougatory, does not read out any preferred embodiment. [00:28:48] Speaker 01: Rather, Unwired Planets' only argument on claim construction [00:28:52] Speaker 01: is that the present invention doctrine is limited to a single sentence. [00:28:55] Speaker 01: So that the limitation must appear. [00:28:57] Speaker 03: There's a present invention doctrine? [00:28:59] Speaker 03: Wow. [00:28:59] Speaker 01: The present invention exception, Judge Moore, perhaps is a better way to put it. [00:29:03] Speaker 01: If we start from the black letter law that we can't read limitations from the specification into the claims, we have an exception under the present invention exception. [00:29:12] Speaker 03: So you acknowledge that what you're asking us to is to read a limitation into the claim. [00:29:17] Speaker 01: Absolutely, Your Honor. [00:29:19] Speaker 01: That's what Judge Chabria did under the court's decisions in Verizon and Honeywell and Absolute Software and so forth. [00:29:25] Speaker 03: So this is a disclaimer case? [00:29:27] Speaker 01: It's not a disclaimer because there's no narrowing involved here. [00:29:31] Speaker 01: It's only a question of what voice input means. [00:29:33] Speaker 01: There's a construction of that term, as Phillips allows, within the specification using specifically the present invention language, which is both Phillips and. [00:29:42] Speaker 03: But the plain meaning of voice input [00:29:46] Speaker 03: include a channel over which it's communicated? [00:29:48] Speaker 01: Well, Your Honor, it does. [00:29:49] Speaker 01: There's a circularity here. [00:29:52] Speaker 01: But the president of invention discloses that this is a two-channel solution to a problem of 1990s technology, right? [00:29:58] Speaker 01: These cell phones and other mobile devices had such limited computing power that they couldn't translate voice input into digital output. [00:30:06] Speaker 01: That's the digital signal processing chip problem that's discussed in the specification. [00:30:10] Speaker 01: The solution being provided here is sending the output over an analog voice line [00:30:16] Speaker 01: so that the digital translation can take place on the server side. [00:30:21] Speaker 06: Are you saying that voice communication channel has to be analog? [00:30:25] Speaker 06: Yeah. [00:30:27] Speaker 01: Your Honor, it has to be, analog does not appear. [00:30:30] Speaker 01: It has to be this. [00:30:32] Speaker 01: It says in this, let me back up on that one. [00:30:35] Speaker 01: What is a voice communication channel? [00:30:36] Speaker 01: It is not any channel that can carry communication. [00:30:38] Speaker 01: Why? [00:30:39] Speaker 01: Because the patent does contain a definition. [00:30:41] Speaker 01: It says at page A194, column 6, line 21, [00:30:49] Speaker 01: The voice communication channel is generally established and coordinated using the infrastructure and procedures generally known in the art for setting up a phone call. [00:30:59] Speaker 03: I'm sorry, I don't actually even know where you are. [00:31:01] Speaker 03: Where are you? [00:31:01] Speaker 03: Column 6, what line? [00:31:02] Speaker 01: Column 6, lines 21 to 25. [00:31:04] Speaker 03: Okay, so in [00:31:18] Speaker 03: In a discussion of a preferred embodiment with references to, with number of references to actually figures. [00:31:26] Speaker 03: That's right. [00:31:27] Speaker 03: It says this communication channel. [00:31:30] Speaker 03: Correct. [00:31:31] Speaker 03: Is generally established in coordinating using the infrastructure. [00:31:34] Speaker 03: Generally establish it, I mean first off it doesn't, it even has the word generally implying that not always, but secondly, [00:31:42] Speaker 03: This is just a preferred embodiment. [00:31:44] Speaker 01: Yes, Judge Moore. [00:31:45] Speaker 01: And then Judge Chabria asked the parties to please brief and provide expert evidence on what a voice channel meant at the time of the application. [00:31:53] Speaker 01: And the parties provided those supplemental briefs. [00:31:55] Speaker 01: And Unwired Planet said, and this is at page A13036 of the record, that that technology included cell phone calls, cordless telephone calls, and CB radio calls. [00:32:07] Speaker 01: Then, and this is the third leg of my stool, Your Honors, [00:32:12] Speaker 01: Apple put in an expert report from Dr. Vasavi in which he said, as a factual matter, that the characteristics of a voice channel at the time of the invention were three, the hallmarks of a voice channel, that it would not delay the transmission, that errors would be tolerated, and that network resources would be dedicated. [00:32:34] Speaker 01: And this report summarizes those at page A57. [00:32:37] Speaker 06: But to say that those characteristics [00:32:40] Speaker 06: characteristics of a voice channel doesn't mean that the term voice channel is necessarily limited to something that has those characteristics. [00:32:49] Speaker 06: Let me give you an example. [00:32:50] Speaker 06: We know, for example, that those features are very attractive for conveying voice, but we also know that voice can be sent over something like a TCP IP [00:33:05] Speaker 06: system and it's a little clunkier and it sounds like the Metro's announcements but it's still voice and therefore why isn't that a voice channel? [00:33:14] Speaker 01: Your honor, because... When voice is being said over. [00:33:17] Speaker 01: Because this was a summary judgment case. [00:33:19] Speaker 01: That was a factual question. [00:33:20] Speaker 01: We're now past claim construction and the district court said what is a voice channel? [00:33:24] Speaker 01: The court said it must be something identifiable otherwise your claim is indefinite. [00:33:29] Speaker 01: What is it? [00:33:31] Speaker 01: Apple said and Dr. Rasavi testified it has these characteristics. [00:33:35] Speaker 03: But on page 13036, which you just referred me to, which I admit I had not actually read beforehand, it just says, are there any discernible limits on what constitutes a voice channel? [00:33:46] Speaker 03: Unwired Planet and its expert identify factors such as it transmits voice and it transmits silence between voice. [00:33:53] Speaker 03: And that's all it says. [00:33:55] Speaker 03: I don't see how that gets you to some admission by them that it is a analog channel [00:34:05] Speaker 03: of a particular kind. [00:34:08] Speaker 03: Your Honor. [00:34:09] Speaker 03: What were you referring to on 13036? [00:34:11] Speaker 01: They say that a typical call that was referred to was the... Where? [00:34:16] Speaker 03: On 13036, what are you referring to? [00:34:21] Speaker 03: That's what you referred me to. [00:34:22] Speaker 03: If you referred me to the wrong page, I'm happy to look at a different page. [00:34:25] Speaker 03: But it seems like one of the legs of your stool just fell off. [00:34:42] Speaker 03: 13036 was what he said. [00:34:44] Speaker 03: Maybe he has a different page. [00:34:48] Speaker 01: Your Honor, I'm referring to lines 7 through 9 on 13036. [00:34:55] Speaker 01: When the inventor filed the 446 application, landline telephones, cordless telephones, and CB radios would have been examples of voice input being sent over a voice channel. [00:35:08] Speaker 03: Yes, those are examples. [00:35:11] Speaker 03: And then in the next question, or actually one question below that, question E, what are discernible limits of what constitutes a voice channel? [00:35:20] Speaker 03: Their answer is it has to transmit voice and also transmit silence between voice. [00:35:24] Speaker 03: That's it. [00:35:24] Speaker 03: That's all I have here. [00:35:25] Speaker 03: OK. [00:35:26] Speaker 03: That's it. [00:35:26] Speaker 01: Let me talk about silence first, Your Honor. [00:35:29] Speaker 01: Dr. Rasavi, Apple's experts, had offered the three elements that I proposed, and they never disputed that those were three elements. [00:35:35] Speaker 01: So that's the first piece of it. [00:35:37] Speaker 01: Silent pauses. [00:35:38] Speaker 01: They say that in their brief in this case. [00:35:39] Speaker 01: They say that in this brief. [00:35:41] Speaker 01: In their brief in this case, they cite A6192 for the silent pauses. [00:35:46] Speaker 01: That's their summary judgment brief. [00:35:47] Speaker 01: And if you look at their summary judgment brief, they refer back to Dr. Jones' report, which nowhere mentions silent pauses. [00:35:52] Speaker 01: So even their supposed limitation isn't actually supported by any evidence, which is why Judge Chabria kept coming back to being this is a summary judgment case. [00:36:01] Speaker 01: There is a necessity. [00:36:03] Speaker 01: to avoid the indefiniteness of these claims. [00:36:05] Speaker 01: And by the way, to avoid anticipation by Yamakita or obviousness under some of the other art that was both before the examiner. [00:36:10] Speaker 03: Yeah, none of what you even gave us in the appendix. [00:36:13] Speaker 03: You gave me three pages where you argued Yamakita [00:36:16] Speaker 03: anticipated. [00:36:17] Speaker 03: And all those three pages say is Yamakita anticipated. [00:36:20] Speaker 03: It gives me none of the facts of Yamakita. [00:36:22] Speaker 03: It cites nothing in Yamakita. [00:36:23] Speaker 03: It doesn't even contain quotes from Yamakita. [00:36:25] Speaker 03: But now you want us, despite the fact that the district court didn't address that argument, to address that on appeal and conclude that's a basis for affirming a judgment when you didn't even give us the reference [00:36:35] Speaker 03: or a single quotation from the reference? [00:36:37] Speaker 01: Your Honor, it's a basis for distinguishing that there are two different channels. [00:36:41] Speaker 01: As the patent says over and over again, voice channel is described some 43 times as being different than a data channel. [00:36:48] Speaker 01: And what a voice channel is then became the summary judgment question. [00:36:51] Speaker 03: Well, actually, wait. [00:36:51] Speaker 03: In the abstract, the voice channel is listed, and then it explains that the user's speech and voice recognition is then forwarded to the user through a separate data channel. [00:37:02] Speaker 01: Yes, Your Honor. [00:37:04] Speaker 03: IE a different data channel, not the same one. [00:37:06] Speaker 03: It can't be the same one. [00:37:08] Speaker 03: A channel separate from the voice channel, correct? [00:37:11] Speaker 03: A separate data communication channel. [00:37:15] Speaker 03: So couldn't it be referring to the voice channel as one form of data communication channel, and this information has to be set back over a separate data communication channel? [00:37:25] Speaker 01: There is nothing in the specification or the expert reports that would support that conclusion, Your Honor. [00:37:32] Speaker 01: That is a possibility. [00:37:34] Speaker 01: This is the importance of the Yamakita reference. [00:37:36] Speaker 01: And Your Honor, I'm happy to submit all of those things if the Court is actually interested. [00:37:39] Speaker 01: The point of that only is that there was a reason that this patent claimed a voice channel and not two data channels. [00:37:46] Speaker 01: It's because there was prior art in which server-side speech recognition was handled over multiple data channels. [00:37:51] Speaker 03: Does any of the background of the invention discuss importance of a voice channel over a data channel in this patent? [00:37:58] Speaker 01: Well, it describes the state of the art as using these devices having very small computing capability and therefore offshoring or offboarding the processing capability. [00:38:09] Speaker 01: And that's the essence of this invention is to get the computing. [00:38:12] Speaker 03: I can see absolutely nothing in any of the background of invention that even mentions a voice channel much less discusses the importance of two different kinds of channels being used. [00:38:24] Speaker 03: Am I wrong? [00:38:24] Speaker 03: Am I missing something? [00:38:27] Speaker 03: I can also see nothing in the objects of the advantages or the advantages discussion, which the advantages discussion begins at column 14, and it goes through at least one, two, three, four, five, about ten different advantages that the present invention achieves. [00:38:42] Speaker 03: No mention anywhere in there of a voice channel or the importance of a two channel process or any of that. [00:38:47] Speaker 03: When someone says the present invention, and I know you've read all these cases, [00:38:52] Speaker 03: the present invention, and in these cases, we look at the importance of this aspect to the nature of the invention. [00:39:01] Speaker 03: I don't see any touting of any significance or even benefit achieved by an analog voice channel that you're describing being touted by the patentee in a way that would convey to one of skill in the art that this is a really important part of his invention. [00:39:18] Speaker 03: Stand up and take note. [00:39:21] Speaker 03: What am I missing? [00:39:23] Speaker 01: I think the background of the invention says mobile devices have limited computing capability, therefore they can't handle speech capability. [00:39:30] Speaker 01: We know, and this is not disputed actually, that the art had already disclosed server-side speech recognition using data channels. [00:39:37] Speaker 01: The only thing inventive here, the only thing that would be allowable over the prior art, is something that does it a different way. [00:39:46] Speaker 01: What is disclosed here is using a voice channel. [00:39:48] Speaker 01: As I said, that voice channel and its cognates is used [00:39:51] Speaker 01: 43 times in the specification, that's no accident, because that is the channel of the outbound communication that is disclosed as the basis for the invention. [00:40:01] Speaker 06: Just to make sure, circling back to a point that we discussed earlier, you're not saying that that voice channel needs to be analog, right? [00:40:09] Speaker 01: That's correct, Your Honor. [00:40:11] Speaker 06: It can be a digital signal. [00:40:13] Speaker 01: It could be. [00:40:14] Speaker 06: A digitized version of voice. [00:40:16] Speaker 01: If it met the requirements that Dr. Rasavi identified and that Unwired Planet didn't [00:40:21] Speaker 01: dispute for the characteristics of a voice channel at the time of the application. [00:40:25] Speaker 06: And if it was a digitized version of voice and the protocol being used to convey it met some but not all of the requirements that the expert identified as generally associated with what we ordinarily think of as voice channels, then would it still be a voice channel? [00:40:47] Speaker 06: It's hypothetical, of course, because this channel, the series channel... I understand, but what I'm trying to get at is are these two discrete categories or is there a lot of wash between the two? [00:41:01] Speaker 01: Your Honor, voice is a form of data at one level of abstraction. [00:41:06] Speaker 01: And voice channel may be a subset of data channel, again, at some level of abstraction. [00:41:11] Speaker 06: But if you digitize it, it looks a lot like the kind of data that the computer is accustomed to using. [00:41:17] Speaker 01: And what Judge Chabria said was we have to be able, in the context of this disclosure, to have a distinguishment between voice channels and data channels. [00:41:26] Speaker 01: Otherwise, there's an indefiniteness problem. [00:41:29] Speaker 01: Unwired Planet hasn't argued that here, because remember, at the summary judgment stage, they came in and said, it's this spectrum, this infinitely variable spectrum with data channel on one end and voice channel on one end, and it's always a facts and circumstances as to where any particular channel follows. [00:41:43] Speaker 01: And Judge Chauvery said, no, you've just walked into an indefiniteness problem. [00:41:45] Speaker 01: There has to be a rule. [00:41:46] Speaker 03: Maybe there would be an indefiniteness problem for claims involving voice channel, arguably, but claim one doesn't say any of that. [00:41:56] Speaker 03: What would be indefinite about claim one? [00:41:59] Speaker 03: It says a voice input signal, which you can't possibly say a signal is the path or channel, right? [00:42:05] Speaker 03: You're not importing the channel into the voice input signal. [00:42:09] Speaker 03: No, Your Honor. [00:42:10] Speaker 06: Okay. [00:42:10] Speaker 06: But the indefiniteness problem would go away, I take it, if we took the really simple minded definition of voice communication channel as a communication channel that carries a voice signal. [00:42:26] Speaker 06: Now you say, well, of course, that would be invalid on obviousness grounds or anticipation. [00:42:33] Speaker 06: But it would avoid indefiniteness and would solve some of the problems we've been talking about, right? [00:42:39] Speaker 01: It would not be consistent with the disclosure, however, Judge Bryson. [00:42:41] Speaker 01: I mean, not even Unwired Planet or its expert proposed that definition in the district court or in this court. [00:42:48] Speaker 03: But 13036, you pointed me to, proposed exactly that definition. [00:42:51] Speaker 03: It just said the transmission of voice and silences. [00:42:53] Speaker 01: Your Honor. [00:42:58] Speaker 01: Consistent with the technology of the time, there has to be some limitation to what distinguishes a voice channel from a data channel. [00:43:05] Speaker 01: Again, that comes back to Judge Chabria's point about the Brightline rule. [00:43:08] Speaker 01: And Apple's expert provided those limitations. [00:43:10] Speaker 01: They didn't. [00:43:11] Speaker 01: If it were any channel, Judge Bryson, that could carry voice, including the TCPIP channel that today does carry voice, [00:43:20] Speaker 01: Then we are going to run, I would submit, into both the indefiniteness problem and the anticipation problem, but that may be a matter of the consequences of that claim. [00:43:31] Speaker 03: We should probably let you move on, because I'd like to hear you talk about the 092 patent, if you have a chance. [00:43:37] Speaker 01: Absolutely, Your Honor. [00:43:42] Speaker 03: Is this case limited to pre-suit or post-suit? [00:43:45] Speaker 03: What is your understanding of that issue? [00:43:49] Speaker 01: The basis on which it has been litigated was the pre-suit knowledge. [00:43:55] Speaker 01: And let me explain that. [00:43:57] Speaker 01: The indirect infringement, as the court is well aware, has essentially two components. [00:44:01] Speaker 01: One is, did Apple have knowledge of the patent? [00:44:03] Speaker 01: And the other is, did Apple have knowledge or was it willfully blind to the fact of infringement by others? [00:44:10] Speaker 01: And Judge Raina, I will get to your question about who the defense goes to in a moment. [00:44:16] Speaker 01: Apple denied both at the summary judgment stage, knowledge of the patent and intent or willful blindness. [00:44:24] Speaker 01: The district court and Unwired Planet put in all of its summary judgment evidence, we would submit, including as it's summarized in the reply group, goes to knowledge that Apple, that some person who may or may not have been an authorized agent of Apple had knowledge of the patent. [00:44:40] Speaker 01: Judge Chabria skipped over that point, didn't address that, either whether he found a factual dispute or just didn't need to decide it. [00:44:46] Speaker 01: and went only to the second point, which is willful blindness as to the fact of infringement. [00:44:52] Speaker 01: That puts one in a little bit of this hypothetical world, right? [00:44:55] Speaker 01: Because Apple continues to deny knowledge of the patent, but then the question at prong two when prong one hasn't been decided is, well, if Apple had knowledge of the patent, did it actually intend others to infringe, or did it know that others were using it to infringe? [00:45:11] Speaker 01: And what Judge Strawberry said there was, no, there's no evidence of actual intent. [00:45:15] Speaker 01: And I take it in this court, they've now dropped their argument as to actual intent. [00:45:18] Speaker 01: Then that question becomes willful blindness. [00:45:21] Speaker 01: The test for willful blindness, of course, we know from global tech, is deliberate action to avoid confirming a high probability of infringement. [00:45:31] Speaker 01: So if Apple knew about the patent and it looked at the acts being undertaken, and Judge Rainer, here's the answer to your question, [00:45:37] Speaker 01: Would it have known that the location services feature of its products infringed the asserted claims of the 092 patents? [00:45:45] Speaker 01: Apple took the position, no, because we only use one location positioning device, whereas the claims recite a plurality of devices. [00:45:54] Speaker 01: That's the merits dispute. [00:45:57] Speaker 01: Judge Chabria denied that, and that would apply both as to Apple's own activities, [00:46:03] Speaker 01: testing its products and so forth, and third-party infringement because the app developers and customers are using that feature as developed by Apple. [00:46:11] Speaker 01: So the infringement analysis as to that point is the same whether it's direct infringement or indirect infringement. [00:46:17] Speaker 01: What Judge Chabria said on direct infringement is, Apple, you got a pretty good argument, but I find a disputed fact as to whether certain of these location identifiers are in fact location identifiers within the meaning of the claim, so that has to go to trial. [00:46:30] Speaker 01: But then when he turned to the induced infringement question, he said again, I'm reading a little bit of the opinion, but he cited global tech and this is the way the analysis has to work. [00:46:39] Speaker 01: If Apple had known about the patent and had examined the allegedly infringing conduct, its infringement argument was so strong that there's no evidence, no reasonable jury could find that Apple took deliberate action to avoid confirming a high probability of infringing because there is no high probability of infringing. [00:46:56] Speaker 01: In fact, we would submit at the end of the day, no probability of infringing because we don't infringe. [00:47:00] Speaker 01: That is the way the analysis played out. [00:47:04] Speaker 01: What Unwired Planet now comes to the court and argues is a variant of knowledge of the patent is alone sufficient to infer willful ignorance or willful blindness to induced infringement. [00:47:18] Speaker 01: The patentee and the United States Solicitor General made exactly the same argument in the Kamil case, exactly the same argument that Unwired Planet makes in this court. [00:47:27] Speaker 01: And the Supreme Court rejected it [00:47:30] Speaker 01: My friends don't cite Connelly either in their Blueberry or in their reply brief because this argument they have presented, their attack on Judge Chabria, was rejected by the United States Supreme Court. [00:47:38] Speaker 01: And the Supreme Court went out of its way there to say the reason that argument won't work is precisely because the accused infringer may read the patent differently [00:47:49] Speaker 01: than the challenger, and if that reading is reasonable. [00:47:51] Speaker 00: Counselor, if we go to the words of the court, and they used, well, the district court used the words strong evidence. [00:48:03] Speaker 00: So it's looking at and comparing and weighing evidence, saying that Apple had strong evidence of its non-infringing position. [00:48:13] Speaker 01: Right. [00:48:14] Speaker 00: Doesn't that mean that there's a dispute in facts and the court found in favor of Apple because it had stronger evidence? [00:48:26] Speaker 00: But isn't that, doesn't that necessarily mean that there's a genuine issue of material fact and dispute? [00:48:32] Speaker 01: Not here, Your Honor. [00:48:34] Speaker 01: It may in some cases. [00:48:35] Speaker 01: But here, there's no evidence from Unwired Planet on the second prong. [00:48:39] Speaker 01: All of their evidence goes to the first prong, that is, knowledge of the patent. [00:48:42] Speaker 01: There is no evidence. [00:48:44] Speaker 01: of intentional knowledge by Apple or willful blindness, deliberate ignorance, of actual infringement, either by itself or by others. [00:48:54] Speaker 00: That's the problem that I see here. [00:48:56] Speaker 00: And I understand your argument. [00:48:57] Speaker 00: But the problem I have is that there's no mention whatsoever about the third party contractors or the users. [00:49:04] Speaker 01: Well, I actually don't think there's a dispute on this point. [00:49:07] Speaker 01: You can ask my friend. [00:49:08] Speaker 01: But the accused feature is developed by Apple [00:49:13] Speaker 01: and then incorporated in apps by developers and used by customers. [00:49:17] Speaker 01: So the inducement and the contributory infringement theories all depend on Apple's location services feature itself being infringing. [00:49:24] Speaker 01: So that as to the point of dispute on the merits, there's no distinction between direct infringement and indirect infringement as to the act of infringement. [00:49:34] Speaker 01: And again, I don't think there's a dispute on that, but my friend will tell you. [00:49:37] Speaker 06: I think you've touched on this, at least indirectly. [00:49:39] Speaker 06: But I just want to make sure I understand your position on this with respect to the argument. [00:49:44] Speaker 06: that the judge incorrectly applied an objective as opposed to a subjective standard. [00:49:50] Speaker 06: I take it your position is that while the judge used words that could be viewed as objective, he was saying in effect that there's no, the strength of Apple's position is further indicative of the fact that they were not engaged in willful blindness subjectively. [00:50:08] Speaker 01: I would say that almost exactly the same, Judge Bryson, by using the Supreme Court's test, that no reasonable jury could find that Apple took deliberate action to avoid confirming a high probability of infringement, since when Apple actually looked at the question in reality, this is the post-suit analysis, right, when it had actual knowledge of the patent, it determined reasonably and in good faith that it did not infringe and that therefore there was not a high probability of infringement. [00:50:34] Speaker 05: Can I ask you if we still have time? [00:50:38] Speaker 05: discuss the hash issue? [00:50:40] Speaker 01: Absolutely, Your Honor. [00:50:42] Speaker 00: So we're moving now to the 26th. [00:50:44] Speaker 00: I'm sorry. [00:50:45] Speaker 00: Remaining lingering question here. [00:50:46] Speaker 00: It seems to me that if I accept your argument at full strength, then you're arguing something that doesn't seem correct to me. [00:50:58] Speaker 00: I mean, Apple cannot induce its own infringement. [00:51:03] Speaker 00: Correct? [00:51:03] Speaker 00: Correct. [00:51:04] Speaker 00: So if this is an inducement, then there's other actors involved. [00:51:08] Speaker 00: Yes. [00:51:09] Speaker 00: And isn't the evidence of the activity or the relationship between Apple and those other actors, isn't that an issue in induced infringement? [00:51:20] Speaker 01: In many cases it is, Your Honor, including... Now explain again why it's not in this case. [00:51:24] Speaker 01: Okay, because the accused feature here, Apple Location Services, the alleged act of infringement is that Apple's location services [00:51:32] Speaker 01: practices the asserted claim of the 092 patent by using a plurality of location finding devices. [00:51:39] Speaker 01: That is the same theory asserted as the basis for direct infringement and indirect infringement. [00:51:43] Speaker 01: The only question is which entity, Apple, developer, or customer, is operating the feature so as to practice the claim. [00:51:53] Speaker 01: If that feature, location services, does not practice the asserted claims, then none of those three entities [00:52:02] Speaker 01: is liable for infringement. [00:52:04] Speaker 01: That was the underlying dispute, again, on the merits of the dispute. [00:52:07] Speaker 01: In many other cases, Judge Rainer, you're absolutely right, where the actual act of infringement is allegedly being undertaken by a third party at its premises or something. [00:52:16] Speaker 01: That creates different factual questions and different legal questions. [00:52:19] Speaker 01: That's just not the case here. [00:52:21] Speaker 01: And there's a footnote, actually, in the summer judgment opinion where the court [00:52:25] Speaker 01: on the other three patents dismisses the indirect infringement claims after dismissing the direct infringement claims on the same theory, because these were essentially derivative claims rather than separate claims, if I could explain it that way. [00:52:35] Speaker 01: On the hash, Judge Bryson, it is a little more complicated than spelling words, Judge Moore. [00:52:45] Speaker 01: It's a complicated mathematical algorithm designed precisely and, in fact, specifically [00:52:54] Speaker 01: so that the input and the output are different. [00:52:57] Speaker 01: It transmogrifies the information into something new, the hash output, that cannot be reversed. [00:53:03] Speaker 04: Did you make that word up? [00:53:04] Speaker 01: That's a real word. [00:53:05] Speaker 04: Really? [00:53:06] Speaker 04: Yes. [00:53:07] Speaker 01: OK, go ahead. [00:53:09] Speaker 01: It's information that cannot be reverse engineered. [00:53:12] Speaker 01: And their expert agrees with this, and they agree with this. [00:53:14] Speaker 01: And that is the whole point of a hash. [00:53:16] Speaker 01: And Dr. Rasavi testified to that, cited sources to that in his expert report, which we've cited. [00:53:22] Speaker 01: We've struggled with analogies in this case, and you've heard about coal trucks and other things. [00:53:26] Speaker 01: Here, I will offer you wine and vinegar, Your Honors. [00:53:29] Speaker 01: Wine goes into vinegar, but you can't go the other way. [00:53:33] Speaker 01: And they're not the same thing. [00:53:34] Speaker 01: If you try to cook with vinegar, you're going to come up with something different than cooking with wine. [00:53:39] Speaker 01: And the importance for this case is that the ruling by Judge Chabria that the user information, I'll put that term in quotes, has to be the same is not challenged. [00:53:51] Speaker 01: The only question is whether the user-inputted password and the hash output from the algorithm are the same. [00:53:59] Speaker 01: And we submit that to the extent that it's a factual question that has been resolved on this record by their own expert's admission that you can't go backwards. [00:54:07] Speaker 01: If you don't buy that argument, there is a second reason, because the claim itself requires that the information in the provisioning request has to be input by the user. [00:54:21] Speaker 01: The specification says it has to be input by the user. [00:54:26] Speaker 01: The claim says it has to be received by the device. [00:54:28] Speaker 01: That's page A217, column 9, line 25. [00:54:34] Speaker 01: The hash output is neither input by the user nor received by the device. [00:54:40] Speaker 01: It is generated on the Apple server side after the information goes up. [00:54:45] Speaker 01: So it doesn't meet the limitation of the claims. [00:54:48] Speaker 00: Would you say it's an abstract result? [00:54:53] Speaker 01: It's not abstract, your honor, because it is predictable. [00:54:56] Speaker 01: The hash outcome is predictable from the algorithm. [00:54:58] Speaker 01: It's just not reversible. [00:54:59] Speaker 01: In fact, what makes a hash algorithm special, they're actually very hard to develop depending on the number of bits involved, is that you can develop many algorithms. [00:55:10] Speaker 01: Add one to every digit is an algorithm, but most of them are reversible. [00:55:13] Speaker 01: Hash algorithms, what's unique about them is they are not reversible. [00:55:17] Speaker 01: And the reason they're done that way is so that anybody who gets the hashed output can't get the user password and steal their identity and go do other things. [00:55:27] Speaker 01: So to suggest that it's the same information, the whole point is that it's changing the information for security reasons so that you can't get the password. [00:55:35] Speaker 01: So we submit on the 260, it's clear from the record and the expert testimony of Unwired Planet's own expert, Dr. Jones, [00:55:45] Speaker 01: that the hashed output is not the same user information as required by the claim. [00:55:50] Speaker 06: Well, go ahead. [00:55:52] Speaker 06: I just wonder about the significance of the non-reversibility to the question of whether it's the same information. [00:56:01] Speaker 06: In other words, I have, let's say my password is password. [00:56:07] Speaker 06: Well, if it's translated into Russian, that's certainly reversible. [00:56:15] Speaker 06: You wouldn't say it's not the same information, would you? [00:56:18] Speaker 01: No, Your Honor. [00:56:18] Speaker 01: And I think this is one of the distinctions between a translation. [00:56:22] Speaker 01: You could translate it into a different language or into binary digits or something. [00:56:26] Speaker 01: And what I've called a transmogrification or a transformation. [00:56:29] Speaker 06: But it's still the same information, even though it's my password in an unrecognizable to most of the people on the Earth form. [00:56:37] Speaker 01: After the hash, Your Honor, I would submit it's not your password, and it's a different... So the Russian version of my password is not the user information? [00:56:46] Speaker 01: I think a translated one presents a much closer question, but I don't think this is a translation. [00:56:50] Speaker 06: I think that's the reversibility issue, and remember the hash... Well, that's what I'm trying to get at, is why is it that the reversibility issue really matters? [00:56:58] Speaker 06: It seems to me, if your argument is that the minute you change the password from something other than P-A-S-S-W-O-R-D, [00:57:06] Speaker 06: If you make it P-A-S-S-W-O-R-D, all lower case as opposed to all upper case, it's not the same user information. [00:57:16] Speaker 06: I understand your argument. [00:57:17] Speaker 06: It may not be persuasive, but I understand the argument. [00:57:19] Speaker 06: But I'm having a hard time figuring out why it is that when we do translate, whether it is by a simple algorithm or by the most sophisticated encryption algorithm that there is out there using pseudorandom numbers and everything else, which will be [00:57:34] Speaker 06: nobody, except maybe the FBI, can break. [00:57:38] Speaker 06: Why, that is any different from the Russian version of my word, hash word. [00:57:44] Speaker 01: Your Honor, let me answer it in two ways, if I may. [00:57:46] Speaker 01: First, the hash, and Dr. Rasavi testified to this, is applied to the information precisely in order to change it to different information. [00:57:55] Speaker 01: That is, the reason it is done is to create a new set of information that [00:58:01] Speaker 01: Hackers cannot use. [00:58:02] Speaker 06: But that's true of the encrypted version that can be broken. [00:58:06] Speaker 01: I don't know if that's true or not. [00:58:07] Speaker 01: There's no evidence on that. [00:58:09] Speaker 06: Well, I mean, certain encryptions, as you pointed out one, add one to each digit. [00:58:15] Speaker 06: That can be broken. [00:58:16] Speaker 01: Yes, but where the line is between the same information or not. [00:58:19] Speaker 01: The point of the hash and a hash being uniquely suited to this, the encryption methodology called a hash, by the way, is the non-reversibility, that it is changing the information [00:58:31] Speaker 01: permanently irreversibly, irretrievably, as we've learned. [00:58:38] Speaker 01: You can't get back from there. [00:58:41] Speaker 01: And what Dr. Asavi testified, that's why the hash is applied, to change the information. [00:58:45] Speaker 01: Dr. Jones doesn't disagree with that. [00:58:47] Speaker 01: He just calls it a mathematical function. [00:58:49] Speaker 01: But he agrees on the non-reversibility, which as Chabria said is, that means that it doesn't meet the same user information. [00:58:55] Speaker 03: One thing I want to ask you, you're received by argument. [00:59:00] Speaker 03: How does that argument play out with Judge Bryson's password translated into Russian? [00:59:06] Speaker 03: If the computer translated it into Russian, and then the Russian translation is what's received by the iOS device, are you saying that's not [00:59:15] Speaker 03: the user information, or it is? [00:59:17] Speaker 03: We would need more facts in our hypothetical to judge more, you know, if, for example... User inputted a word in English, computer translated that word into Russian, sent it to the iOS device. [00:59:27] Speaker 03: Right? [00:59:27] Speaker 03: Isn't that... Is that word in Russian, which is received by the iOS device, the user information? [00:59:32] Speaker 01: It's actually user input to the iOS device. [00:59:35] Speaker 03: No, that's in the spec. [00:59:36] Speaker 03: That's not in the claims. [00:59:38] Speaker 01: Okay, but received by the device is user input, so it has to... [00:59:42] Speaker 01: If the information received has already been translated, is that your question? [00:59:45] Speaker 01: Yes. [00:59:45] Speaker 01: I'm just trying to figure out where the translation takes place. [00:59:49] Speaker 01: If the information received by the device is identical to what is then provided in the provisioning request, then it would meet that limitation. [00:59:58] Speaker 03: The user typed in a word in English. [00:59:59] Speaker 03: What is received by the device is that word in Russian. [01:00:03] Speaker 03: Is that receiving the correct information? [01:00:11] Speaker 01: I can't answer the question because I believe the only disclosure is user input directly to the device, and I don't know enough about how the device itself could make that translation or whether that would have to go to an outside server or not. [01:00:27] Speaker 01: So I don't know is the answer. [01:00:31] Speaker 03: Okay. [01:00:32] Speaker 03: Okay. [01:00:33] Speaker 03: Do you have anything further? [01:00:35] Speaker 01: Not on 260, unless Scott would like to hear anything on 831. [01:00:39] Speaker 03: Not at this point. [01:00:40] Speaker 03: Why don't we move on? [01:00:41] Speaker 03: Thank you for your argument, Mr. Perry. [01:00:43] Speaker 03: Mr. Campbell, you have three minutes of rebuttal time. [01:00:47] Speaker 03: We're going to try to bring this to a close at some point here. [01:00:50] Speaker 02: I understand. [01:00:51] Speaker 02: I'll take less than three minutes. [01:00:54] Speaker 02: In fact, I'll try to be very brief. [01:00:56] Speaker 02: I'll make three points. [01:00:58] Speaker 02: One is council suggested what their experts said about the hash and that it's different information. [01:01:06] Speaker 02: The record A10251. [01:01:10] Speaker 02: What Mr. Rossavi says is the hash does not contain the text of the password. [01:01:16] Speaker 02: The text. [01:01:17] Speaker 02: I think that's a very different. [01:01:19] Speaker 02: Nobody disputes that the character string is different. [01:01:21] Speaker 02: The question is it's the same information, and it is. [01:01:24] Speaker 02: Second, there was also a question as to whether there was evidence in the record about the silent pauses for the voice channel. [01:01:33] Speaker 02: That is in the record at Dr. Jones' expert opinion at A6147. [01:01:36] Speaker 02: Finally, I would just make the point that there was a number of times it was referenced that if we don't put these requirements on voice channel, we've got some sort of 112 problem. [01:01:51] Speaker 02: I don't think that's true. [01:01:53] Speaker 02: But as this court stated in the PPJ Industries case, Section 112 does not mean that a court may give a claim [01:02:03] Speaker 02: whatever additional precision or specificity is necessary to facilitate a comparison between the claim and the accused product. [01:02:10] Speaker 02: And that's exactly what the district court did here. [01:02:12] Speaker 02: The district court believed that there needed to be more specificity to a voice channel. [01:02:20] Speaker 02: It adopted these three requirements so that it could then compare that definition of voice channel to the accused product. [01:02:27] Speaker 02: And that's improper. [01:02:30] Speaker 02: Finally, I'll say, if those three requirements are what is required of a voice channel, that excludes a number of embodiments in the patent, if you understand voice channel in that way. [01:02:43] Speaker 02: It simply is not the case that that's how voice channel is limited. [01:02:48] Speaker 02: For the reasons we've discussed today and presented in the briefing, this court should one, reverse the district court summary judgment ruling because the district court improperly resolved questions of fact. [01:02:57] Speaker 02: And two, remain with the proper claim constructions for voice input. [01:03:00] Speaker 03: OK. [01:03:00] Speaker 03: Thank you, Mr. Campbell. [01:03:02] Speaker 03: I thank both counsel for their argument. [01:03:03] Speaker 03: The case is taken under submission. [01:03:15] Speaker 04: All rise. [01:03:17] Speaker 04: Roll call.