[00:00:14] Speaker 01:
okay the next case before the court is hallway communications LLC versus AT&T mobility LLC case number 161684 an appeal from a decision out of the district of Delaware Mr. Bishop five minutes yes please you may begin

[00:00:43] Speaker 03:
Thank you and may it please the court.

[00:00:45] Speaker 03:
My name is Greg Bishop and I'll be arguing on behalf of CallWave Communications.

[00:00:51] Speaker 03:
The invention described in the 933 patent has to do with making purchases on the internet or from some other merchant and having the charges for those show up on your phone bill rather than having to provide your personal financial information to a merchant whom you may or may not know.

[00:01:11] Speaker 03:
This gives advantages to the consumer because he can keep his private financial information private.

[00:01:18] Speaker 03:
And also, it allows for the merchant to be able to customize the billing and the rates that's being charged to the customer.

[00:01:28] Speaker 04:
I'd like to get to what's a fundamental issue to me.

[00:01:30] Speaker 04:
And I'd like to start by asking you, do you dispute that Figure 2 relates to an unclaimed method?

[00:01:39] Speaker 03:
Well, Figure 2 has elements into it that are not claimed.

[00:01:43] Speaker 03:
The claim is directed towards Figure 3.

[00:01:47] Speaker 03:
But the specification, when it's describing Figure 2, it includes information that is also relevant to Figure 3.

[00:01:55] Speaker 03:
So I can't say that they're completely unrelated.

[00:01:58] Speaker 03:
But there are elements of Figure 2 that are not claimed by the Claim 13.

[00:02:02] Speaker 01:
There's nothing in any of the figures that shows anything that doesn't have a call.

[00:02:09] Speaker 01:
involved, right?

[00:02:10] Speaker 03:
Well, it depends on what you mean by a call.

[00:02:12] Speaker 03:
There's an electronic communication of some data that goes over a telecommunications network.

[00:02:18] Speaker 01:
I'm talking about a telephone call.

[00:02:20] Speaker 03:
And in the preferred embodiment, the best mode that is described, is a telephone call.

[00:02:26] Speaker 03:
But if you look at that telephone call, it doesn't have all the... To answer my question, every single figure shows a telephone call, right?

[00:02:36] Speaker 01:
I know the figure's not the end of the

[00:02:38] Speaker 03:
If by a telephone call you mean something that doesn't have a voice communication and in which the user does not participate, there is a telephone call made in the embodiments that are shown in the figures.

[00:02:53] Speaker 03:
That's correct.

[00:02:54] Speaker 03:
But it's not a traditional telephone call as you and I would understand it.

[00:02:59] Speaker 04:
But the telephone call that is shown in all of the figures in the bottom, and it's basically when you have this call manager.

[00:03:07] Speaker 04:
that calls a pay-per-call number.

[00:03:10] Speaker 04:
I mean, that is a telephone call.

[00:03:13] Speaker 03:
There is a telephone call made to a pay-per-call number in the preferred embodiment.

[00:03:17] Speaker 03:
That's correct.

[00:03:19] Speaker 03:
But the telephone call is only the communication of data from point A to point B. There is no voice communication.

[00:03:30] Speaker 03:
There's no participation by the user in a telephone call.

[00:03:33] Speaker 04:
So when we look at claim 13,

[00:03:37] Speaker 04:
I'm looking at index 87, column 10, and you see paragraph 13.

[00:03:49] Speaker 04:
It says downward, at least part in response to a purchase request information, impart an electronic communication to be originated from a mobile device.

[00:04:04] Speaker 04:
This mobile device, is that a telephone?

[00:04:07] Speaker 03:
Well, it could be the user's personal mobile device.

[00:04:11] Speaker 03:
It could be a computer.

[00:04:13] Speaker 03:
An iPad.

[00:04:14] Speaker 03:
It could be an iPad.

[00:04:15] Speaker 03:
It could be an interactive television, the specification mentions.

[00:04:19] Speaker 03:
It could be any kind of device.

[00:04:21] Speaker 04:
So the term electronic communication, is it limited?

[00:04:25] Speaker 04:
Because it says to be originated from a mobile device.

[00:04:28] Speaker 04:
So is this electronic communication solely limited to that from the mobile device?

[00:04:36] Speaker 03:
In claim 13, we're talking about a communication from a mobile device to a first destination.

[00:04:42] Speaker 03:
In claim construction, we did not get into what a mobile device is.

[00:04:49] Speaker 03:
The specification makes clear that there's a variety of different devices that could be, including a computer or a mobile phone with a browser.

[00:04:58] Speaker 04:
So if the electronic communication has to originate from the mobile device, then

[00:05:04] Speaker 04:
And if I was to say that that's an iPad and it's an iPad contacting this call manager or sending a signal to the call manager, then wouldn't that construction change the first destination construction?

[00:05:23] Speaker 03:
The electronic communication that we're talking about in claim 13 is not the communication from the mobile device to the call manager.

[00:05:34] Speaker 03:
It's a communication from the mobile device to the first destination.

[00:05:38] Speaker 03:
It's the way that the information about the user gets from the mobile device to the remote processing system so that the information about the user can be used to put it on his bill.

[00:05:51] Speaker 04:
In all of the embodiments, there's not a situation where the mobile device contacts the call manager.

[00:05:59] Speaker 04:
Then this call manager, which I take to be some sort of remote application,

[00:06:03] Speaker 04:
contacts the telephone call.

[00:06:07] Speaker 03:
That is one embodiment for sure, but it's not the claimed embodiment in claim 13.

[00:06:12] Speaker 03:
In the specification, it talks about sending a message from the mobile device to the call processor, and then the call processor makes the call, or the call processor can send a message back to the mobile device and say, you make the electronic communication at a time of your choosing.

[00:06:31] Speaker 03:
And that's the embodiment that's claimed.

[00:06:33] Speaker 01:
Is there anything in the prosecution history at all that shows why claim 13 was allowed or that there was any reason independent of the reasons for allowing claim one?

[00:06:45] Speaker 03:
In the 933 patent prosecution, there was no discussion of prior art.

[00:06:51] Speaker 03:
There was just the examiner's listing of the reasons for allowance and that reasons included the fact that there's no

[00:06:59] Speaker 03:
voice call and the user is not talking about his purchase.

[00:07:06] Speaker 03:
But in the parent applications, the grandparent applications, there's a discussion distinguishing a traditional telephone call to a pay-per-call service.

[00:07:20] Speaker 03:
It's distinguishing that from the invention, which doesn't include those items.

[00:07:25] Speaker 03:
So I think if you look at the examiner's statement for allowance,

[00:07:29] Speaker 03:
What he's doing is reflecting the fact that this is not a traditional telephone call to a paper call service.

[00:07:34] Speaker 03:
It is, in fact, just the communication of data that doesn't involve voice and doesn't involve communication about the purchase.

[00:07:43] Speaker 03:
Well, it's not a traditional telephone call, but it is still a telephone call, right?

[00:07:47] Speaker 03:
If you look at the specification, if we read this in light of, as a person of ordinary skill in the art would understand it, after reading the specification, the specification doesn't describe

[00:07:58] Speaker 03:
anything that's anything other than communication of data.

[00:08:03] Speaker 03:
Similar to it, you can use a telecommunications network to send a text message.

[00:08:10] Speaker 03:
And you still use the same systems and methods for placing and routing telephone calls.

[00:08:15] Speaker 03:
But you're not actually placing a telephone call.

[00:08:17] Speaker 03:
You're simply sending data.

[00:08:19] Speaker 03:
And if you look at what's described in the specification, it describes systems such as SS7, ISDN,

[00:08:28] Speaker 03:
AIN, which is these are all different systems and methods of placing and routing telephone calls.

[00:08:34] Speaker 03:
But if you look, for example, at appendix on page 559, it describes what SS7 is.

[00:08:41] Speaker 03:
And it says it sets up systems for supporting voice, text, data, or video.

[00:08:50] Speaker 03:
So these systems and methods that are described in the specification can be used as they're used in the preferred embodiment

[00:08:56] Speaker 03:
but they can also be used to simply send the data that's required.

[00:09:00] Speaker 01:
Is there an example anywhere in the specification, in the written description, where the billing triggering event is anything other than a call?

[00:09:15] Speaker 03:
There's nothing other than a call that's described specifically.

[00:09:20] Speaker 03:
But the systems that are described are all used for sending electronic communications

[00:09:26] Speaker 03:
And that's the only thing that's sent in this call, per se.

[00:09:31] Speaker 03:
It's not a telephone call in the sense that you're using it like we would use a telephone call.

[00:09:38] Speaker 03:
There's a call made, and these systems and methods are used, such as SS7, to send text data or data down to make the billing event happen.

[00:09:48] Speaker 03:
So there's no disclaimer, and that's the point here.

[00:09:51] Speaker 03:
It's not our burden to show that

[00:09:54] Speaker 03:
other more than one embodiments disclosed we were required to disclose the best mode that our inventors knew of to make it and they did that but really this is a question of whether there's clear disclaimer and there is no manifest disclaimer of any scope of the electronic communication and it is simply a communication of electronic data.

[00:10:21] Speaker 01:
You put a lot of emphasis on your

[00:10:22] Speaker 01:
claim differentiation argument, but isn't it true that claim differentiation is a concept that's usually used when you're talking about comparing a dependent claim to an independent claim?

[00:10:36] Speaker 03:
I don't think it's really a claim differentiation argument in that sense.

[00:10:40] Speaker 03:
It's more of a claim differentiation argument in that they use two different words.

[00:10:44] Speaker 03:
And so the presumption is that those two different words have two different meanings.

[00:10:49] Speaker 03:
And it's pretty clear, I think in ordinary parlance,

[00:10:52] Speaker 03:
One would not compare an electronic communication to a telephone call.

[00:10:59] Speaker 03:
It's much broader than that.

[00:11:00] Speaker 03:
And in fact, the only record evidence here, and it's unrebutted, is that a person of ordinary skill in the art reading this specification would understand that the electronic communication that's being described would not just be a telephone call.

[00:11:16] Speaker 03:
but would also include things like text messaging over telecommunications.

[00:11:20] Speaker 04:
In your view, in claim 13, is there a difference between a communication as used in that first line with an electronic communication as used later?

[00:11:32] Speaker 03:
I think electronic communication just makes clear that this is not something that you're speaking.

[00:11:39] Speaker 03:
It's an electronic communication of information.

[00:11:42] Speaker 03:
It's emphasizing the point that this is not a voice call.

[00:11:46] Speaker 03:
This is not a communication that's done.

[00:11:48] Speaker 03:
I can't call up and say, hey, I'd like to charge on this guy's phone bill $45 for an item he purchased.

[00:11:58] Speaker 03:
This is an electronic communication, not a voice communication.

[00:12:04] Speaker 01:
OK, you're into your rebuttal time.

[00:12:06] Speaker 01:
We'll give you the rest of it.

[00:12:19] Speaker 02:
May it please the court, Dan Bagatell on behalf of the Apple East.

[00:12:22] Speaker 02:
With me is Daniel Webinfall on behalf of AT&T Mobility.

[00:12:26] Speaker 02:
The district court, correct?

[00:12:27] Speaker 04:
Let's start with, when we say electronic communication, it just seems to me that just the plain meaning of that would encompass many different forms of communication.

[00:12:37] Speaker 04:
A telephone call, different type of signals that exist.

[00:12:42] Speaker 04:
All of those are electronic communications.

[00:12:45] Speaker 04:
Any signal sent electronically

[00:12:48] Speaker 04:
Just to begin with, there would be an electronic communication, correct?

[00:12:52] Speaker 02:
Well, yes, in the sense that if you just viewed it in the abstract, an electronic communication could be a communication.

[00:12:58] Speaker 04:
So now we look at it in terms of the patent.

[00:13:01] Speaker 04:
And when we look at Claim 13, it says, an electronic communication to be originated from a mobile device.

[00:13:10] Speaker 04:
So it limits whatever construction electronic communication to one that originates from the mobile device.

[00:13:17] Speaker 04:
Are all of the embodiments here, are they so limited?

[00:13:22] Speaker 04:
Is there any way that this patent works where the call manager, not the mobile device, the call manager makes the call or sends a single to the 900 number?

[00:13:33] Speaker 02:
Yes.

[00:13:34] Speaker 02:
There is a figure two embodiment.

[00:13:36] Speaker 02:
It's not claimed.

[00:13:37] Speaker 02:
We call it the spoofing embodiment in which the call manager makes the call.

[00:13:41] Speaker 02:
It resets the ANI to

[00:13:45] Speaker 02:
the number for the billing number of the purchaser and makes the call itself.

[00:13:50] Speaker 02:
That's the spoofing embodiment, but it's not claimed.

[00:13:52] Speaker 02:
It happens to be shown in Figure 1 and in Figure 2, but it's not what's claimed in Claim 1, Claim 13, and I don't think CallWave disagrees with that.

[00:14:04] Speaker 01:
Is it your view that Claim 1 and Claim 13 are essentially the same thing?

[00:14:11] Speaker 02:
They are similar, and that's common, of course, between

[00:14:14] Speaker 02:
independent claims.

[00:14:15] Speaker 02:
There are some differences.

[00:14:16] Speaker 02:
I think if you take a look at page 41 of our brief, we sat out a chart of the differences.

[00:14:23] Speaker 02:
For example, claim 13 also requires a remote processing system associated with the destination of painting, building information.

[00:14:31] Speaker 02:
So there are some differences, but that's very common among independent claims to try to claim essentially the same thing using slightly different language.

[00:14:41] Speaker 02:
And really the question here is

[00:14:42] Speaker 02:
Whether, if you view the claims in view of the specification, a skilled artisan would understand that the electronic communication is a phone call to a paper call number.

[00:14:52] Speaker 02:
Whether you view this as a Phillips issue of interpreting a seemingly ambiguous claim or a disclaimer or disavowal, it's the same result because of three things.

[00:15:01] Speaker 02:
First of all, the present invention language.

[00:15:03] Speaker 02:
The patent uses the word present invention about 12 times.

[00:15:07] Speaker 02:
Four of them are just outright unequivocal.

[00:15:09] Speaker 02:
It says four times that the

[00:15:13] Speaker 02:
The present invention relates to systems and methods for rooting and placing telephone calls.

[00:15:20] Speaker 02:
And then it goes on to say that embodiments involve providing ways of making automatic calls to paper call numbers or services.

[00:15:28] Speaker 02:
Every single time it refers to the present invention as involving a call to a paper call number or service.

[00:15:33] Speaker 02:
The second thing this court looks to is the problem to be solved and how it's to be solved.

[00:15:38] Speaker 02:
And that's in the background of the invention in column one.

[00:15:41] Speaker 02:
It says conventional commerce systems fail to provide an automated apparatus that places or routes calls to paper call members or services as part of an online purchase transaction.

[00:15:51] Speaker 01:
This was a long prosecution history here, right?

[00:15:55] Speaker 02:
Yeah, there were continuations.

[00:15:57] Speaker 01:
So claim 13 comes in later.

[00:15:59] Speaker 01:
The fact that claim 13 might have been conceived of a little bit later doesn't mean that the specification doesn't ultimately support something slightly different.

[00:16:10] Speaker 02:
That is true, but in this case, the specification only supports the only embodiments disclosed.

[00:16:16] Speaker 02:
Every embodiment involves an automatic call to a paper call number or service over phone lines.

[00:16:22] Speaker 02:
That's the only thing this patent discloses.

[00:16:26] Speaker 02:
From the title, to the abstract, to the summary of the invention, to the disclosure of each embodiment, that's the only thing this teaches.

[00:16:35] Speaker 02:
It uses the words present, invention,

[00:16:37] Speaker 02:
It describes the problem to be solved as the inability to bill using pay-per-call services.

[00:16:43] Speaker 02:
And that's what they're trying to do here.

[00:16:45] Speaker 01:
What about the dependent claims that follow claim 13?

[00:16:48] Speaker 01:
I mean, claim 16 says the method is defined wherein the mobile device is a cellular phone.

[00:16:54] Speaker 01:
Well, if the mobile device is a cellular phone in claim 13, why do you need claim 16?

[00:17:01] Speaker 02:
Well, because it could be a tablet, it actually shows a mobile computer in figure one.

[00:17:07] Speaker 02:
It could have a laptop that's equipped with some way to dial up.

[00:17:11] Speaker 02:
It doesn't necessarily have to be a cell phone.

[00:17:15] Speaker 04:
But what was going on here is that... Does it have to be a telephone call?

[00:17:18] Speaker 04:
I mean, that creature?

[00:17:21] Speaker 02:
Yes.

[00:17:21] Speaker 04:
And we know that because not only because of what... I mean, telephone networks are used to send different types of signals, or can be.

[00:17:27] Speaker 04:
Is that correct?

[00:17:28] Speaker 04:
Well, you can have voice and you can have data, but it all goes over... Like a fax line, a fax... Sure.

[00:17:36] Speaker 02:
You can send voice or data over a telephone line, but it's still a telephone call.

[00:17:41] Speaker 02:
A fax is a good example of that because it sends data.

[00:17:44] Speaker 02:
But a lot of what my friend has been talking about has been signaling methods, and all of those signaling methods described in the patent relate to telephone calls.

[00:17:53] Speaker 02:
First of all, the ANI is only a telephone phenomenon.

[00:17:56] Speaker 02:
So all of the signaling that they're talking about is a telephone type signaling.

[00:18:01] Speaker 02:
Whether you're using SS7 or something else, it is still telephone call signaling.

[00:18:06] Speaker 02:
He mentioned text messaging.

[00:18:08] Speaker 02:
There's no discussion whatsoever of text messaging in this patent.

[00:18:11] Speaker 02:
Their expert mentioned it briefly, and the district court didn't credit that.

[00:18:16] Speaker 02:
So there's no mention whatsoever of text messaging in this patent.

[00:18:20] Speaker 01:
The reality is... Couldn't an electronic communication be a text message?

[00:18:24] Speaker 01:
Do you have to...

[00:18:25] Speaker 01:
call it out by name for it to be an electronic communication?

[00:18:29] Speaker 02:
Well, the point is that even though they used, six years into prosecution, they switched to using language that said an electronic communication to a first destination.

[00:18:40] Speaker 02:
The question is whether you can expand the scope of the entire patent really by using generic language.

[00:18:46] Speaker 02:
I personally believe that electronic communication is ambiguous, but even if you don't believe that, if you view it as a disclaimer or a disavowal issue, we have words of manifest restriction and exclusion here because we have present invention language, because we have language where we describe what the invention was trying to accomplish, the problem to be solved and how it was solved.

[00:19:06] Speaker 02:
It was only solved in one way, and every embodiment in the patent describes that.

[00:19:10] Speaker 02:
Those three things together, there's only really one conclusion one of skill and the art could draw.

[00:19:15] Speaker 00:
It seems to me that we're sort of using the tools of claim construction to do a task for which they aren't really very well suited.

[00:19:24] Speaker 00:
This is not to suggest that we don't do this on a regular basis, but this problems, and you've alluded to it now, it seems to me to be that they came in later with what is arguably new matter and threw in a claim that isn't supported by the rest of the patent.

[00:19:43] Speaker 00:
That's certainly consistent with the way you've presented the case, although that, unfortunately, for present purposes, is an invalidity point.

[00:19:54] Speaker 00:
Let me put it this way.

[00:19:55] Speaker 00:
Suppose that claim 13 had language in it which explicitly said, not limited to a paper call number, to a paper call number or service, so that it was clear as a bell that claim 13

[00:20:13] Speaker 00:
was not limited in this way, then all your arguments about the specification would be ineffective, right?

[00:20:22] Speaker 02:
I would agree with you that if they expressly said, for example, a non-telephonic communication, then we would be arguing a 112 issue.

[00:20:30] Speaker 02:
But that obviously isn't the scenario here.

[00:20:32] Speaker 00:
It isn't.

[00:20:33] Speaker 00:
But if we conclude that it's pretty close to that,

[00:20:37] Speaker 00:
And that in fact, what electronic communications was intended to do is to extend beyond the phones, then doesn't this really belong in an invalidity analysis?

[00:20:51] Speaker 02:
Well, if it were clear, but for example, there's no prosecution history in which they said that we're actually trying to expand the scope of our claims to something more.

[00:21:00] Speaker 02:
We have to construe it in light of the specification.

[00:21:02] Speaker 02:
I think it's very similar to the Honeywell case.

[00:21:04] Speaker 02:
in which there was a Honeywell case that we cited in our briefs.

[00:21:08] Speaker 02:
Which you're familiar with.

[00:21:09] Speaker 02:
Which I'm familiar with, having been the losing counsel in that case.

[00:21:13] Speaker 02:
But I got religion.

[00:21:18] Speaker 02:
But in that scenario, actually, I will say that I had not only the advantage of a broad claim language, but also prosecution history in which the patentees told the examiner that they were trying to broaden it out.

[00:21:30] Speaker 02:
And the court said it wasn't good enough because

[00:21:32] Speaker 02:
you have very clear language in the specification saying the present invention relates to a fuel filter.

[00:21:37] Speaker 02:
And so your fuel injection system component is limited to a fuel filter.

[00:21:41] Speaker 02:
And in this case, we have that in spades.

[00:21:43] Speaker 02:
We have repeated mentions of the present invention limited to phone calls.

[00:21:48] Speaker 02:
That's all they've described.

[00:21:49] Speaker 02:
That's all they've claimed.

[00:21:50] Speaker 02:
I think if all you're doing is making a generic statement, an electronic communication, it's ambiguous on its face because

[00:21:57] Speaker 02:
You don't know if they're meaning literally every electronic communication, or do you need to read the specification and determine what kind of electronic communication are we talking about?

[00:22:05] Speaker 04:
Doesn't this claim speak to two different types of communication?

[00:22:08] Speaker 04:
One, just communication by itself, and then electronic communication.

[00:22:13] Speaker 04:
Well... It seems to me when you look at the claim, for example, if you look at line 25, column 10, it says,

[00:22:27] Speaker 04:
The communication is talking about the communication.

[00:22:31] Speaker 04:
When you say, well, what communication?

[00:22:33] Speaker 04:
And you look up above, you have communication.

[00:22:37] Speaker 04:
And also, you have electronic communication.

[00:22:40] Speaker 04:
And the court construed electronic communication to be a telephone call.

[00:22:45] Speaker 04:
But the term communication, I don't think it was not construed.

[00:22:49] Speaker 04:
And that one, wouldn't you say that that

[00:22:52] Speaker 04:
can be any type of electronic signal?

[00:22:54] Speaker 02:
No, I think, Your Honor, that the communication refers back to the previous communication discussed.

[00:23:00] Speaker 02:
There are two communications in this patent.

[00:23:03] Speaker 02:
The first is to the call manager to say, hey, we want to buy something and here's how much we want to pay for it.

[00:23:10] Speaker 02:
That can be over the internet.

[00:23:11] Speaker 00:
That can be in any way, in any means.

[00:23:13] Speaker 02:
Exactly.

[00:23:14] Speaker 02:
The second communication is always a telephone call.

[00:23:16] Speaker 02:
What's going on here is they're trying to use an existing paper call infrastructure.

[00:23:22] Speaker 02:
This is a nice way to transition without having to build a whole new system.

[00:23:25] Speaker 04:
It's sort of plug and play.

[00:23:27] Speaker 04:
Describe to me, why is this claim limited to the latter and does not include the former?

[00:23:34] Speaker 02:
Why is it limited to which?

[00:23:36] Speaker 04:
The telephone call to the 900 number.

[00:23:40] Speaker 04:
Our discussion today, yes.

[00:23:42] Speaker 02:
Yes, it is limited to that because that was the invention they

[00:23:47] Speaker 02:
claimed that the problem they claimed to have solved and how they solved it all involved making a telephone call to a paper call number.

[00:23:54] Speaker 02:
They didn't want to invent a whole new infrastructure.

[00:23:58] Speaker 02:
They didn't want to use a whole new signaling method.

[00:24:00] Speaker 02:
They wanted to use an existing method and yet have a way that you wouldn't have to use your credit card number or other things that might have some security disadvantages.

[00:24:09] Speaker 02:
But the supposedly ingenious solution was to use this existing 1900 capability.

[00:24:15] Speaker 02:
And that's what this patent describes.

[00:24:17] Speaker 02:
If you read it from start to finish, that's the only thing it's ever talking about.

[00:24:21] Speaker 02:
That's my invention.

[00:24:22] Speaker 02:
That's what they're talking about.

[00:24:24] Speaker 01:
Claim 13 actually refers to billing via a phone bill.

[00:24:29] Speaker 01:
Yes.

[00:24:29] Speaker 01:
But yet it doesn't refer to a phone or a call anywhere else.

[00:24:33] Speaker 01:
Isn't it a little strange to have the

[00:24:36] Speaker 01:
phone bill reference precisely in there, but not referred to a call elsewhere in claim 13?

[00:24:41] Speaker 02:
I don't think so, because what they were trying to add in that point was that it would go on to a telephone bill that somebody would be getting from their phone company.

[00:24:51] Speaker 02:
And in fact, I think it supports the idea that if it's going to your phone bill, it's not surprising that it's going to involve a communication over a phone network.

[00:24:59] Speaker 02:
Now, you don't absolutely have to do it that way, but it's certainly, I think, consistent with the idea that they were trying to bill

[00:25:06] Speaker 02:
to a phone bill, a communication that's made over a paper call service.

[00:25:10] Speaker 02:
And that's how it's done.

[00:25:11] Speaker 02:
You call up a paper call service, and it tells you it can either be by the minute or by the charge.

[00:25:18] Speaker 02:
It goes to that 1-900 portion of it that rates and bills it, and it ends up on your phone bill.

[00:25:23] Speaker 02:
So I think it's entirely consistent with the rest of the patent.

[00:25:26] Speaker 02:
The only difference here is that they tried to broaden out some of the language.

[00:25:29] Speaker 02:
But I think this court's cases have said, I think something like 10 or 12 times, that claims can't enlarge what is patented beyond

[00:25:36] Speaker 02:
what the inventor has described as his invention.

[00:25:38] Speaker 02:
There may be an exception to that where somebody is expressed saying, I am not claiming what is in my written description, but that's not this case.

[00:25:46] Speaker 04:
I'm sitting on the fence.

[00:25:47] Speaker 04:
I'll let you know on whether this claim addresses both what I see two different types of communications, the latter one being the call from the call manager to the 1-800 number.

[00:26:02] Speaker 04:
That's one.

[00:26:04] Speaker 04:
And I believe that's a telephone call.

[00:26:06] Speaker 04:
But there seems to be another call or another signal that's sent to, for example, a remote processing system that's associated with the designation.

[00:26:15] Speaker 04:
And that doesn't have to be a telephone call.

[00:26:18] Speaker 02:
No, I don't think they're arguing that.

[00:26:20] Speaker 02:
First of all, the call is always from the mobile device.

[00:26:23] Speaker 04:
And the remote processing.

[00:26:28] Speaker 04:
We know that the device can be an iPad.

[00:26:32] Speaker 02:
Yes.

[00:26:35] Speaker 02:
I think, basically, the remote processing is a way that you can rate and bill the call.

[00:26:43] Speaker 04:
So the call manager is remote, correct?

[00:26:45] Speaker 02:
Yeah.

[00:26:45] Speaker 02:
The call manager is 18, but it's not the remote processing system.

[00:26:49] Speaker 02:
The remote processing system, they describe in the patent.

[00:26:51] Speaker 02:
They say, actually, it can be affiliated with the call manager system.

[00:26:55] Speaker 02:
But basically, it's a way to rate.

[00:26:57] Speaker 04:
Something's got to tell that remote

[00:27:00] Speaker 04:
system, that call manager, go ahead and make the call to the 1-800 number.

[00:27:06] Speaker 04:
Yes.

[00:27:09] Speaker 04:
Why isn't that part of what we're looking at?

[00:27:12] Speaker 04:
Why do you say that this claim does not include that call?

[00:27:16] Speaker 02:
Oh, it does in the sense that the first line, receiving information over a network relating to a user's purchase, and then partly in response to that request information, which says, I want to buy something and I want to bill it to this phone number.

[00:27:29] Speaker 02:
And then the call manager

[00:27:31] Speaker 02:
tells the mobile device to make a call to a certain number, and then it's rated and billed just the way 900 calls are done.

[00:27:40] Speaker 02:
You basically go through a toll gate, it strikes a timer, and then it gets billed to that call.

[00:27:45] Speaker 00:
So it's that second communication that has to be to the pay per call number or service.

[00:27:50] Speaker 00:
Correct.

[00:27:51] Speaker 00:
The first can be on, you can do it by smoke signals if you like.

[00:27:54] Speaker 02:
um... yes uh... i'm not sure that was enabled but uh... yes electronic smoke signals no it's true that there's a data communication that can be used to set up the call and that's what the patent describes but your point is that the call has to be made ultimately when this is a patent that's called a call routing apparatus and that's what it describes from start to finish uh... there is there are various we're not limiting it to a single monitor

[00:28:22] Speaker 02:
I mean, there are a variety of ways you can set this up.

[00:28:25] Speaker 02:
You can send it over one network, multiple networks.

[00:28:29] Speaker 02:
You can use a variety of different signaling mechanisms, a variety of ways to rate and build a call.

[00:28:34] Speaker 02:
All of that's generic, but all of this is described as the inner workings of a paper call service.

[00:28:39] Speaker 02:
And that's what they were trying to do throughout this patent.

[00:28:42] Speaker 02:
There is nothing else described.

[00:28:45] Speaker 01:
Thank you.

[00:28:48] Speaker 01:
You have about three and a half minutes.

[00:28:52] Speaker 03:
Thank you.

[00:28:53] Speaker 03:
He talked a length about what a person of ordinary skill in the art would understand, but he provided no evidence of that.

[00:29:03] Speaker 03:
It's simply his opinion about what a person of ordinary skill in the art would understand.

[00:29:07] Speaker 03:
The unrebutted evidence of what a person of ordinary skill in the art would understand from reading this specification is that it would include a telephone call or a text message, both of which come from a mobile device, both of which use telecommunications networks

[00:29:22] Speaker 03:
and both of which provide data to the other side and not a voice communication.

[00:29:27] Speaker 01:
Could you ever suggest to Judge Andrews that perhaps claim construction wasn't the appropriate vehicle or the appropriate lens through which to examine the question that's really being posed here?

[00:29:37] Speaker 03:
That did not come up in the oral argument or in the briefing.

[00:29:43] Speaker 03:
Judge Andrews was at the time doing a Markman hearing and we addressed the point of electronic communication

[00:29:52] Speaker 03:
and first destination, but we did not address that point.

[00:29:56] Speaker 01:
But you never said, Judge, let the chips fall where they may.

[00:30:00] Speaker 01:
There might be a problem later down the road that we have to address, and they have to prove by clear and convincing evidence as it relates to new matter.

[00:30:08] Speaker 01:
But that's not for today.

[00:30:10] Speaker 03:
Well, it's certainly something we thought about.

[00:30:12] Speaker 03:
I can't remember if it came up at the oral argument or not, to be honest.

[00:30:17] Speaker 03:
The other thing that he talked about, and from what I've heard,

[00:30:22] Speaker 03:
or the defendant's sole argument is that there's one embodiment disclosed and only one embodiment and just therefore you have to follow that embodiment.

[00:30:31] Speaker 03:
The only language of disclaimer, the only language of disclaimer that we've heard is this present invention language.

[00:30:40] Speaker 03:
And it says, it does not say the present invention is limited to a telephone call.

[00:30:45] Speaker 03:
It does not even say the present invention is related to a telephone call.

[00:30:49] Speaker 03:
What it says is the present invention is related to

[00:30:52] Speaker 03:
systems and methods for making and placing telephone calls.

[00:30:56] Speaker 03:
And in this case, it's very different than the Honeywell case.

[00:30:59] Speaker 03:
The Honeywell case said the present invention is related to a fuel filter.

[00:31:04] Speaker 03:
It did not say the present invention is related to systems and methods for filtering fuel.

[00:31:11] Speaker 03:
And if it had done that, then I think the result would have been very different because the Honeywell was trying to say it's broader than just a fuel filter.

[00:31:19] Speaker 03:
It, in fact, involves all the systems and methods for filtering fuel.

[00:31:23] Speaker 03:
Here we're involving the systems and methods for making a telephone call.

[00:31:28] Speaker 03:
But it doesn't have to be a telephone call because the only information that's described in the specification, the only information that's transferred is electronic communication of data.

[00:31:40] Speaker 00:
I'm not sure I understood your last statement.

[00:31:42] Speaker 00:
You said here we're dealing with methods and systems for routing and placing telephone calls, but it doesn't have to be a telephone.

[00:31:50] Speaker 03:
Right.

[00:31:51] Speaker 03:
So any more than the systems and methods for filtering fuel is only the fuel filter.

[00:31:55] Speaker 03:
There's other things in that system.

[00:31:57] Speaker 03:
We're talking about not just placing a telephone call, but also routing telephone calls.

[00:32:01] Speaker 00:
But do you mean to say that there need be no telephone call at all?

[00:32:06] Speaker 03:
That's correct.

[00:32:07] Speaker 00:
There need not be a... And therefore, that's not, in your view, inconsistent with saying the system and method for routing and placing telephone calls?

[00:32:16] Speaker 03:
No, because I could take out my mobile telephone

[00:32:19] Speaker 03:
I can make a text message.

[00:32:21] Speaker 03:
It uses the same systems and methods of placing and routing telephone calls, but it's not a telephone call.

[00:32:27] Speaker 03:
It's a text message.

[00:32:28] Speaker 03:
And the only evidence in this case, and it's completely unrebutted, is that a person of ordinary skill in the art reading this specification would understand a text message to be the same as what's disclosed in the specification, for the purpose of what's disclosed in specification.

[00:32:44] Speaker 03:
All of this court's cases require clear disavowal.

[00:32:47] Speaker 03:
There's no advantage to using a telephone call over a text message.

[00:32:51] Speaker 03:
There's no purpose of the invention that's not solved by doing a text message instead of a telephone call.

[00:33:00] Speaker 03:
There's simply nothing of manifest disclaimer in this specification, and they haven't identified any.

[00:33:10] Speaker 03:
Okay, anything else?

[00:33:11] Speaker 03:
Thank you.

[00:33:12] Speaker 03:
Thank you very much.

[00:33:13] Speaker 01:
The case will be submitted.