[00:00:01] Speaker ?:
I'm sorry.

[00:00:51] Speaker 03:
Okay, our next case is number 16-1916, Content Guard Holdings versus Apple Inc., Mr. Thomas.

[00:01:01] Speaker 03:
Now this case and the next one, 16-24-30, are almost completely overlapping in the issues and we ask the parties to try to avoid repetition in the two arguments.

[00:01:18] Speaker 01:
Indeed, Your Honor.

[00:01:20] Speaker 01:
We will attempt to avoid all repetition on the common issues in the two cases.

[00:01:24] Speaker 02:
Sure.

[00:01:24] Speaker 02:
Let me ask you a question.

[00:01:25] Speaker 02:
Other than the practicing the prior art defense issue, is there any reason that resolution in this case wouldn't resolve content guard v. Google?

[00:01:34] Speaker 01:
Well, that's the practicing the prior art defense issue, Your Honor, is for the Google appeal.

[00:01:39] Speaker 01:
There was a separate evidentiary issue for the Apple appeal, Your Honor.

[00:01:43] Speaker 01:
And that is whether or not they're... This is Apple, isn't it?

[00:01:47] Speaker 02:
Yeah, it is.

[00:01:48] Speaker 02:
Yeah.

[00:01:48] Speaker 02:
Other than the practicing... Oh, I'm sorry.

[00:01:51] Speaker 01:
I misunderstood, Your Honor.

[00:01:52] Speaker 01:
Then yes, the answer to your question is yes.

[00:01:55] Speaker 01:
You were right, is the answer to your question, Your Honor.

[00:02:00] Speaker 01:
May it please the Court, Dirk Thomas on behalf of Content Guard.

[00:02:04] Speaker 01:
Content Guard, as we've noticed, has focused its appeal on this case on two very specific issues, one that overlaps, one that doesn't.

[00:02:12] Speaker 01:
The overlapping issue is with respect to a claim construction usage rights.

[00:02:17] Speaker 01:
Now, we focused our appeal here because the errors that occurred in these two issues permeated the entire trial, particularly usage rights, because it was common.

[00:02:28] Speaker 01:
And what happened there is the district court construed these usage rights.

[00:02:32] Speaker 01:
Again, this is a digital rights management system that is used so that when somebody wants to rent a movie from iTunes, in the case of Apple,

[00:02:44] Speaker 01:
They get the movie along with certain rights to you to watch it, to play it.

[00:02:49] Speaker 02:
You're arguing about the district court's claim construction on usage rights.

[00:02:55] Speaker 02:
But you haven't proposed an alternative construction that includes association or its variance either to the district court or to this court.

[00:03:04] Speaker 01:
We did not, Your Honor, and for a very, very specific reason and a very solid reason.

[00:03:08] Speaker 01:
One, the claims don't require it.

[00:03:11] Speaker 01:
What the claims do require, the claims that were asserted,

[00:03:14] Speaker 03:
is that once the movie... You said that attached and associated were the same thing.

[00:03:20] Speaker 03:
So how is it prejudicial that the district court limited you to attached?

[00:03:26] Speaker 01:
Really good question, Your Honor, and here's why it's prejudicial.

[00:03:29] Speaker 01:
Because the district court didn't stop at saying... First of all, it didn't say associated and attached were the same thing.

[00:03:36] Speaker 01:
But most important, we said that.

[00:03:38] Speaker 02:
And the party seemed to agree.

[00:03:40] Speaker 02:
I'm sorry, Your Honor?

[00:03:41] Speaker 02:
The party seemed to agree that attached to and associated with

[00:03:45] Speaker 02:
mean the same thing.

[00:03:46] Speaker 02:
I'm looking at the blue brief and the red brief.

[00:03:48] Speaker 01:
Well, respectfully, Your Honor, they stood up in front of the jury and told the jury that if it was only associated, it wasn't attached.

[00:03:58] Speaker 02:
So if it was the same thing... In the red brief, they say attached or treated as attached is a kind of association.

[00:04:06] Speaker 01:
And then in the presentation of their evidence, Your Honor,

[00:04:10] Speaker 01:
They told the jury that if it was associated, that was different than attached.

[00:04:15] Speaker 03:
Did you object to that?

[00:04:17] Speaker 01:
Absolutely, Your Honor.

[00:04:18] Speaker 01:
Yeah, that was at the claim construction issue, Your Honor.

[00:04:22] Speaker 03:
When they argued with the jury, did you object to the jury argument?

[00:04:25] Speaker 01:
We had earlier, Your Honor, yes.

[00:04:27] Speaker 03:
No, the answer is you didn't object when they presented this argument to the jury.

[00:04:31] Speaker 01:
When they presented the argument that the attachment was different than associated, Your Honor, is that what you're asking me?

[00:04:37] Speaker 03:
The thing that you're referring to, you say,

[00:04:40] Speaker 03:
In arguing to the jury, they said, associated is not the same as attachment.

[00:04:45] Speaker 01:
Respectfully, Your Honor, we had.

[00:04:47] Speaker 01:
And that occurred during the Daubert issue, because it was resolved.

[00:04:50] Speaker 03:
No, no, no, no, no.

[00:04:51] Speaker 03:
You've got to object when there is an improper argument to the jury.

[00:04:56] Speaker 03:
You've got to object at the time.

[00:04:58] Speaker 03:
Did you object at the time?

[00:05:01] Speaker 01:
During the trial, no, but that was part of the claim construction, Your Honor, and we had argued that and the district court had ruled in the Daubert ruling when it was entitled to amend or change its claim construction, it did so.

[00:05:15] Speaker 01:
And what it did over our objection was to say that our expert was not allowed to say that the reference ID that connects the content to the usage rights associated those two things.

[00:05:29] Speaker 01:
The court precluded our expert from saying there was a reference or an association.

[00:05:35] Speaker 03:
How does that excuse you from making an objection during the jury argument if you think the other side has gone beyond where it should?

[00:05:43] Speaker 01:
I'm sorry, Your Honor.

[00:05:44] Speaker 01:
I'm not being clear.

[00:05:45] Speaker 01:
My point is that there's not the same scope.

[00:05:50] Speaker 01:
It can't be the same scope between attached and associated.

[00:05:54] Speaker 01:
if they stand up in front of the jury and say one is different than the other.

[00:05:58] Speaker 01:
I didn't object to that.

[00:06:01] Speaker 01:
I didn't.

[00:06:01] Speaker 01:
I think it's true.

[00:06:02] Speaker 01:
I think associated is different than attached or treated as attached.

[00:06:07] Speaker 01:
I think it's broader.

[00:06:09] Speaker 01:
And that's what we tried to present during our claim construction brief.

[00:06:13] Speaker 01:
So the issue, Your Honor, is not whether or not they could say that their device, that their usage rights... You said it was the same.

[00:06:21] Speaker 03:
You told the district court it was the same.

[00:06:23] Speaker 03:
And if they started to argue that it was not the same and you thought that was prejudicial, you should have objected to that.

[00:06:31] Speaker 01:
But Your Honor, the district court told us it wasn't the same.

[00:06:34] Speaker 01:
And so that decision had already been made.

[00:06:37] Speaker 01:
The district court had told us that our experts or attorneys were not allowed to argue that an association between the usage rights and the content

[00:06:50] Speaker 01:
was enough to meet the attached or treated as attached.

[00:06:54] Speaker 01:
He precluded our expert from saying the word associated.

[00:06:59] Speaker 01:
So, of course, at that point, what they were able to do by default is to tell the jury and get our expert to have to admit in his examination that association wasn't enough.

[00:07:14] Speaker 01:
I wasn't allowed to stand up and say otherwise.

[00:07:18] Speaker 01:
During his, in his Daubert ruling, the court precluded and restricted us from saying that associated was enough.

[00:07:28] Speaker 01:
And so the issue had been resolved at that point, Your Honor.

[00:07:31] Speaker 01:
We believe in correctly.

[00:07:33] Speaker 01:
But the issue was whether or not our expert could say that an ID number that was common between the usage rights, the license, and the content was sufficient

[00:07:46] Speaker 01:
to mean a reference between the two, that a reference ID was sufficient to be attached or treated as attached.

[00:07:54] Speaker 03:
So what are you arguing now?

[00:07:55] Speaker 03:
Are you arguing that attached and associated are the same?

[00:07:59] Speaker 03:
What we're arguing, Your Honor, is that... I just heard you say that.

[00:08:02] Speaker 01:
What we're arguing, Your Honor, is that within the context of Dr. Stefik's patents, he used the word attached metaphorically.

[00:08:09] Speaker 01:
The first time he uses it, he puts it in quotes.

[00:08:12] Speaker 01:
We all know

[00:08:13] Speaker 01:
that you cannot attach a digital bit in memory to another digital bit in memory.

[00:08:19] Speaker 01:
And we're talking about digital files here.

[00:08:22] Speaker 01:
So what we're saying is that the common and ordinary meaning of attached, some sort of tying or binding of something together, cannot be the appropriate connotation that was intended in the scope of this patent.

[00:08:40] Speaker 01:
the attached metaphor.

[00:08:43] Speaker 02:
Let me ask you this.

[00:08:48] Speaker 02:
The glossary section 859 patent defines usage rights as language for defining the manner in which a digital work may be used or distributed as well as any conditions on which use or distribution is premised.

[00:09:03] Speaker 02:
And the patent says the term usage rights is a term which refers to rights granted to a recipient

[00:09:10] Speaker 02:
digital work and goes on.

[00:09:15] Speaker 02:
Why don't those definitions amount to lexicography?

[00:09:18] Speaker 02:
They do.

[00:09:19] Speaker 02:
Okay.

[00:09:20] Speaker 02:
Then why should attachment or association be included in our construction if it doesn't appear in definitions of use?

[00:09:28] Speaker 01:
They should not.

[00:09:31] Speaker 01:
They should not.

[00:09:31] Speaker 01:
And that's what we told the court during the markman phase, Your Honor.

[00:09:35] Speaker 01:
We said that there was no need

[00:09:37] Speaker 01:
to define a relationship between the usage rights and the content because none was required in the claims or if the claims did say anything about that, they used the word association.

[00:09:52] Speaker 01:
They certainly didn't use the word attachment.

[00:09:54] Speaker 03:
Wait.

[00:09:55] Speaker 03:
I didn't understand you on appeal to be arguing that the district court erred in requiring attachment.

[00:10:03] Speaker 03:
Am I mistaken about that?

[00:10:04] Speaker 01:
Yes, you're mistaken, Your Honor.

[00:10:06] Speaker 01:
We believe we objected to any kind of description in the Markman phase, Your Honor.

[00:10:15] Speaker 01:
In our Markman brief, we said that there was an emphasis in the order, that the Markman order that's attached,

[00:10:22] Speaker 01:
where the court recites what each party's positions are.

[00:10:25] Speaker 01:
We said there was no reason to define a relationship between the usage rights and the content, absent some association or some connection already being included in the words of that claim.

[00:10:40] Speaker 01:
The glossary definition certainly does not require any particular connection or attachment.

[00:10:47] Speaker 02:
If attachment and association mean the same thing,

[00:10:52] Speaker 02:
and you were permitted to present evidence on that limitation.

[00:10:58] Speaker 02:
How can this issue be disposed of infringement?

[00:11:00] Speaker 01:
We were precluded from presenting evidence.

[00:11:03] Speaker 02:
They mean the same thing.

[00:11:05] Speaker 01:
We were precluded from saying that, Your Honor.

[00:11:07] Speaker 01:
The Court... No, you're saying they mean the same thing.

[00:11:11] Speaker 02:
And you were permitted to present evidence of one of those.

[00:11:18] Speaker 01:
We were precluded from saying that an association

[00:11:21] Speaker 01:
between the usage rights and the content was sufficient to meet the attached or treated as attached claim construction.

[00:11:29] Speaker 03:
Where do you object to the district court's usage of the term attached?

[00:11:36] Speaker 03:
That was in the markman phase, Ron.

[00:11:38] Speaker 03:
That doesn't do it.

[00:11:39] Speaker 03:
Where in your brief do you object?

[00:11:43] Speaker 03:
Do you raise the argument that the district court should not use the word attached?

[00:11:48] Speaker 03:
When we challenge- No, now.

[00:11:50] Speaker 03:
in this court, in this brief.

[00:11:51] Speaker 01:
In this brief, when we said that the court improperly construed usage rights to require an attached or treated as attached relationship.

[00:12:00] Speaker 03:
Where do you say that?

[00:12:01] Speaker 03:
I'm just asking you.

[00:12:03] Speaker 03:
Maybe my memory is wrong.

[00:12:05] Speaker 03:
I'd like to see where you said that you erred by using the word attached.

[00:12:11] Speaker 01:
I believe we said that the district court erred by requiring any relationship

[00:12:16] Speaker 01:
other than what the claims require.

[00:12:18] Speaker 03:
And by definition... Just show me where.

[00:12:21] Speaker 01:
Okay, Your Honor.

[00:12:25] Speaker 01:
Page 5, Your Honor, at the bottom.

[00:12:27] Speaker 01:
This overly narrow construction, and right above that, we say the parties vigorously disputed the meaning of usage rights at the claim construction stage.

[00:12:37] Speaker 03:
Yeah, but that's not the same thing as saying he erred by using the word attachment.

[00:12:42] Speaker 03:
What you're saying is that he should have more broadly construed it to use the word associated.

[00:12:50] Speaker 01:
No, we said he didn't need to use any word that wasn't already in the claim, Your Honor.

[00:12:56] Speaker 03:
Where do you argue that here?

[00:12:57] Speaker 03:
Where do you argue that his use of the word attachment was an error?

[00:13:06] Speaker 01:
Maybe I'm not mishearing, Your Honor.

[00:13:08] Speaker 01:
It says right here

[00:13:11] Speaker 01:
The district court rejected defendant's permanent attachment limitation, and it also rejected content guard's arguments and instead held that usage rights must be attached or treated as attached to content.

[00:13:26] Speaker 01:
This overly narrow construction was error.

[00:13:29] Speaker 03:
Kennedy Yeah, but that's not the same thing as saying that he was wrong in using the word attachment.

[00:13:35] Speaker 03:
What you're arguing, as I understand it, is that he should have included associated in the claim construction.

[00:13:42] Speaker 01:
what we argued at the Markman phase.

[00:13:44] Speaker 03:
I don't care what you argued at the Markman phase for the moment.

[00:13:46] Speaker 03:
I'm talking about what you're arguing in the blue brief.

[00:13:49] Speaker 03:
I don't see in the blue brief that you say that the use of the word attachment by the district court was wrong.

[00:13:56] Speaker 03:
What you're saying is that it should have been a more expansive definition that mentioned associated as well.

[00:14:03] Speaker 01:
Or it should have been no particular relationship that was necessary.

[00:14:08] Speaker 01:
The usage rights, Your Honor,

[00:14:11] Speaker 01:
don't necessarily have to have any particular connection to the content.

[00:14:16] Speaker 01:
It's just as Judge Wallach noted, the glossary definition of usage rights does not define any relationship between them.

[00:14:24] Speaker 02:
I have a few questions for you.

[00:14:25] Speaker 02:
I want to clear up.

[00:14:27] Speaker 02:
In regards to the JMO, at 47, you argue in the blue brick, you argue that Apple's repeated and unambiguous concessions that are reasonable jury was not in fact required to find for Apple.

[00:14:40] Speaker 02:
compel the conclusion of the new trial as appropriate.

[00:14:44] Speaker 02:
That's the very standard required for judgments as a matter of law.

[00:14:51] Speaker 02:
I'm quoting from Old Town Canoe.

[00:14:54] Speaker 02:
A motion for JMOL is probably granted only if no reasonable juror could find in the non-movements paper.

[00:15:01] Speaker 02:
Did you honestly expect us to fault Apple for presenting its arguments under the correct legal standard?

[00:15:07] Speaker 01:
No, Your Honor, what we were presenting in that argument was the fact that Apple recognized there was a disputed factual issue with evidence on both sides.

[00:15:15] Speaker 01:
No, they did not.

[00:15:16] Speaker 01:
Well, Your Honor, they argued that there was a reasonable... They said a reasonable jury could find in our favor.

[00:15:22] Speaker 01:
Well, they said they were resolving factual disputes, Your Honor, respectfully.

[00:15:26] Speaker 01:
That's what we believe that David was saying.

[00:15:28] Speaker 02:
In the yellow brief at 38, you say, Apple argues that Apple's gamesmanship could not have affected

[00:15:36] Speaker 02:
Content guards substantial rights.

[00:15:38] Speaker 02:
Content guards substantial rights.

[00:15:40] Speaker 02:
I couldn't find where Apple referred to its arguments as gamesmanship.

[00:15:43] Speaker 02:
Where was that?

[00:15:45] Speaker 01:
Apple's gamesmanship, Your Honor?

[00:15:47] Speaker 01:
With respect to how it was alternatively arguing, that's what we meant.

[00:15:51] Speaker 01:
I don't think we were saying gamesmanship was the word that Apple used.

[00:15:57] Speaker 02:
Second, Apple argues that Apple's gamesmanship could not have affected content guards substantial rights.

[00:16:04] Speaker 02:
You're saying they argued that their gamesmanship did something.

[00:16:07] Speaker 02:
Where did they argue gamesmanship?

[00:16:09] Speaker 01:
We think that their presentation of a argument that there was a material factual dispute that could have gone either way, on which the jury could have resolved the issue either way, means that there was not a necessary directed verdict.

[00:16:26] Speaker 01:
Their Rule 50B motion on this had been denied by the Fisher Court.

[00:16:30] Speaker 01:
So by gamesmanship, you mean like following the rules?

[00:16:34] Speaker 01:
Well, certainly we weren't trying to say that, Your Honor.

[00:16:36] Speaker 01:
That's not what we were trying to get to.

[00:16:38] Speaker 01:
What we were trying to get to is we thought it was inconsistent for Apple to say to the district court, the jury had evidence that could have gone both ways, and then to come here and say the evidence could only go one way.

[00:16:50] Speaker 01:
That's what we thought was inconsistent, Your Honor.

[00:16:54] Speaker 01:
And that's what we were trying to urge.

[00:16:57] Speaker 01:
Have I responded to that question, Your Honor?

[00:17:00] Speaker 02:
Oh, yeah, you've responded.

[00:17:02] Speaker 03:
I think I want to get back to your question about where we said... We're out of time here, and I think we'll give you your little time to address whatever you want at that point.

[00:17:18] Speaker 01:
Very good, Your Honor.

[00:17:23] Speaker 03:
Mr. Trello?

[00:17:27] Speaker 00:
Thank you, Your Honor.

[00:17:27] Speaker 00:
I may please report

[00:17:30] Speaker 00:
Let me start with usage rights.

[00:17:31] Speaker 00:
And in particular, Judge Wallach, I'd like to talk about your question.

[00:17:35] Speaker 00:
It's not in the glossary definition of usage rights, so why is attachment in there?

[00:17:40] Speaker 00:
This court's decisions on claim construction recognize a number of ways that a patentee can define a term or impose a restriction.

[00:17:49] Speaker 00:
There's express definition.

[00:17:51] Speaker 00:
There's implicit definition by using a term consistently throughout the spec.

[00:17:54] Speaker 00:
There's referring to things as a component of the present invention.

[00:17:58] Speaker 00:
statements to the Patent Office, and even occasionally extrinsic statements by the inventor.

[00:18:05] Speaker 00:
We've got every single one of those here.

[00:18:07] Speaker 03:
They're not even arguing that the use of the word attachment is incorrect, are they?

[00:18:12] Speaker 00:
Well, frankly, Your Honor, I don't know, and I don't even know now whether they think associated and attachment mean the same thing.

[00:18:20] Speaker 00:
I thought I heard both things up here.

[00:18:23] Speaker 03:
I understand the argument in the brief to be that it was okay to use the word attachment, but that they should, the district court should have included associated within the claim construction, even though the two terms, in their view, mean the same thing.

[00:18:37] Speaker 00:
Well, if that's the argument, Your Honor, and I confess the same kind of confusion that I think you're expressing, they never asked the district court to include associated

[00:18:48] Speaker 00:
And I think Mr. Thomas just admitted that.

[00:18:50] Speaker 00:
They never asked that that be included.

[00:18:52] Speaker 02:
That was my point.

[00:18:52] Speaker 02:
I don't think that Judge Dyck's expressing any confusion.

[00:18:57] Speaker 02:
He's articulating their arguments such as it is.

[00:19:01] Speaker 00:
Well, if that's their argument, then I think it was waived at the district court because they never asked for associated to be included.

[00:19:09] Speaker 00:
And so I think it's clear from the specification that usage rights are to be attached to the content.

[00:19:17] Speaker 00:
And Judge Wallach, you're correct that the glossary definition of usage rights doesn't include attached, but it's also correct that district court didn't use that glossary definition at all.

[00:19:27] Speaker 00:
We argued that they should use the language for expressing and all of that, and he didn't.

[00:19:33] Speaker 00:
The glossary definition of digital work, however, does say that usage rights are attached to digital work.

[00:19:39] Speaker 00:
The glossary definition of composite digital work says that composite digital work is, you know, can be different parts, each of which

[00:19:46] Speaker 00:
has usage rights attached.

[00:19:48] Speaker 00:
So whether it's, whether it's appended to the usage rights construction or somewhere else, and incidentally we requested a construction of digital works that included attached or treated as attached, the judge, Judge Dillstrap concluded that that didn't need to be construed after, pardon me, after he had, you know, came up with his usage rights construction.

[00:20:08] Speaker 00:
So it's in, there's no question that it is a component of this invention as claimed.

[00:20:13] Speaker 00:
whether you attach it to, whether you, I shouldn't say attach it, append it to the digital works construction or usage rights, it's there, it's crystal clear in the specification.

[00:20:24] Speaker 00:
Now on this association point, besides the fact that they never asked for that to be part of the construction, there are a couple of things that I think are clear.

[00:20:35] Speaker 00:
One is that everybody agreed throughout that usage rights should be construed the same way

[00:20:42] Speaker 00:
for all of the claims, whether it was the two claims that happened to use the word associated or the three other claims.

[00:20:49] Speaker 00:
Second, and I think this was clear in the brief at least, content guard takes the position that associated and attached or treated as attached mean the same thing in the context of these claims.

[00:21:01] Speaker 00:
So usage rights that are attached or treated as attached are usage rights that are associated as the term is used in the patent claims.

[00:21:10] Speaker 00:
And that's, of course, the only

[00:21:12] Speaker 00:
meaning that matters.

[00:21:13] Speaker 00:
Now, the issue with respect to not letting, and it wasn't just content guards experts who were precluded.

[00:21:18] Speaker 00:
Nobody's experts were supposed to be throwing around the term associated.

[00:21:23] Speaker 00:
That arose at the Daubert stage because Judge Gilstrap was concerned that people might be trying to use language other than his claim construction to convey some broader meaning to the jury.

[00:21:33] Speaker 00:
After all, associated, it's a, you know, it's a general word.

[00:21:37] Speaker 00:
It's not a technical term.

[00:21:39] Speaker 00:
outside the context of these patents, it can have a range of meanings.

[00:21:43] Speaker 00:
And so that's what he was trying to deal with.

[00:21:48] Speaker 00:
Now, I think it's pretty clear in this Court's case is once a Court has construed a claim, it's perfectly entitled and, in fact, probably required to hold the parties to that construction and not allow them to be throwing around other unconstrued terms to try to, whether they're trying to or not, that might confuse or mislead the jury.

[00:22:08] Speaker 00:
And it's important to note that Judge Gilstrap was even handed about this.

[00:22:13] Speaker 00:
The next paragraph of his order on the Delbert motions, he had the paragraph about associated.

[00:22:19] Speaker 00:
The next one says, no expert can say anything to suggest that usage rights have to be permanently attached to content, which was, of course, a construction that we wanted.

[00:22:29] Speaker 00:
So what he was doing was holding the parties to the claims as he had construed them, which is what district judges do after they've construed the claims.

[00:22:38] Speaker 00:
Now, the reason this came up at trial is that notwithstanding the Daubert ruling, Content Guard's expert on direct examination, Content Guard counsel asked his expert, Dr. Goodrich, about supposed usage rights associated with a movie in the Apple system.

[00:22:55] Speaker 00:
It was the Avengers movie that they were using as an example.

[00:22:59] Speaker 00:
So on Cross, Apple's counsel got up and reminded Dr. Goodrich about the claim construction.

[00:23:05] Speaker 00:
And Dr. Goodrich agreed, and these are his words, a mere association is not sufficient.

[00:23:12] Speaker 00:
And that's right, using association in the broad sense.

[00:23:15] Speaker 00:
Now, the cross-examination was completely appropriate.

[00:23:18] Speaker 00:
It was consistent with the claim construction.

[00:23:20] Speaker 00:
And there was no objection to the cross-examination at trial.

[00:23:24] Speaker 00:
Even after that, the very next day, Content Guard put its expert on the 053 patent on the stand, Dr. Martin.

[00:23:30] Speaker 00:
And he several times was throwing around the term associated with usage rights.

[00:23:35] Speaker 00:
So that basically left Apple with no choice but in closing to address the associated issue.

[00:23:41] Speaker 00:
And basically, there was one reference to it.

[00:23:43] Speaker 00:
It's an appendix, page 2678.

[00:23:46] Speaker 00:
To read their brief, you'd think that the whole closing was about that, and it's far from true.

[00:23:51] Speaker 00:
And there was no objection to that argument.

[00:23:54] Speaker 00:
And contrary to their assertion that somehow this ruling precluded them from introducing evidence, it didn't do anything of the kind.

[00:24:01] Speaker 00:
Their expert was still permitted to

[00:24:05] Speaker 00:
You know, talk about every feature of the accused devices that he said established the necessary connection between usage rights and the content.

[00:24:14] Speaker 03:
He wasn't allowed to use the word associate.

[00:24:17] Speaker 00:
Exactly.

[00:24:17] Speaker 00:
He wasn't allowed to characterize it.

[00:24:18] Speaker 00:
That's a restriction, right?

[00:24:20] Speaker 00:
Well, but it's not a restriction.

[00:24:22] Speaker 00:
I don't think it's a restriction on evidence.

[00:24:24] Speaker 00:
It's a restriction on characterizing the evidence.

[00:24:27] Speaker 00:
He was allowed to talk about ID numbers, memory addresses, every feature of the accused products that he said

[00:24:34] Speaker 00:
was provided the necessary link between usage rights and content.

[00:24:38] Speaker 00:
All he was precluded from doing was saying that that was, that it was association rather than attached or treated as attached.

[00:24:44] Speaker 00:
And he said it was attached or treated as attached.

[00:24:47] Speaker 00:
So if you combine that with the fact that they're saying that they mean the same thing in the context of these claims, it's, it's hard to see what the, what the argument is about in truth.

[00:24:59] Speaker 00:
So the, you know, in light of the claim construction and the Court's rulings, the only purpose that could have been served by allowing the experts to use the term associated would have been to confuse or mislead the jury to suggest that something other than the attached or treated as attached construction was what mattered, and Judge Gilstrap properly precluded that.

[00:25:20] Speaker 00:
The, now there, apart from the claim, the usage rights claim construction,

[00:25:25] Speaker 00:
They fail, even if that can, even if attached or treated as attached, shouldn't be there, and we think it should, obviously.

[00:25:31] Speaker 00:
They failed to prove infringement for other reasons.

[00:25:36] Speaker 00:
They failed to prove that Apple has the repository limitations.

[00:25:40] Speaker 00:
Now, we, we lay that out in our brief, and the fundamental point is the communications integrity requirement requires that to have communications integrity and therefore be a repository as defined.

[00:25:53] Speaker 00:
everything you communicate with in connection with usage rights has to be a repository as well.

[00:25:59] Speaker 00:
It's undisputed, for example, that the Akamai servers that deliver the content, they clearly are involved with the content, they're expert admitted, they're not repositories.

[00:26:08] Speaker 00:
So that alone just, and that has nothing to do with usage rights being attached or treated as attached.

[00:26:13] Speaker 00:
Now, one thing I do want to talk about, and Mr. Thomas didn't get into it expressly,

[00:26:20] Speaker 00:
And that's this one discovery or evidentiary dispute about the R-Sync code.

[00:26:28] Speaker 00:
And I have to say, for a party that claims to be astonished at unconscionable behavior by its adversary, Content Guard makes some pretty astonishing statements in that argument.

[00:26:39] Speaker 03:
Did they ever get the code?

[00:26:40] Speaker 00:
Yes.

[00:26:41] Speaker 00:
Well, it's publicly available code.

[00:26:43] Speaker 00:
And importantly, Your Honor.

[00:26:44] Speaker 02:
I want to know how you feigned confusion.

[00:26:49] Speaker 02:
I had that task, too, but I ran out of time.

[00:26:51] Speaker 00:
Oh, well, perhaps I'm out of a puddle.

[00:26:54] Speaker 00:
I'm sorry, Your Honor.

[00:26:55] Speaker 00:
Your Honor, they were permitted, in response to their R-SYNC objection, to put in their, over our objection, to put in undisclosed expert testimony about how the fact that we used R-SYNC in some way established behavioral integrity, which was what all this was about.

[00:27:14] Speaker 00:
So they got to put in that case.

[00:27:16] Speaker 03:
They had the code.

[00:27:18] Speaker 00:
The code is publicly available.

[00:27:19] Speaker 00:
I believe they had it.

[00:27:20] Speaker 00:
Their expert certainly testified as if he had it.

[00:27:24] Speaker 03:
Now.

[00:27:25] Speaker 03:
Well, that confuses me because I thought that the contention was here that the, that Apple didn't produce the code and that, in fact, there was a sanction directed to Apple because it didn't produce the code.

[00:27:41] Speaker 03:
What am I failing to understand here?

[00:27:43] Speaker 00:
No, the, well, actually, there, there, I think what

[00:27:47] Speaker 00:
Perhaps there, there are two issues.

[00:27:50] Speaker 00:
The argument about producing code had to do with the source code issue.

[00:27:54] Speaker 00:
Here the argument was, was not that they didn't have the code.

[00:27:57] Speaker 00:
The argument was that we supposedly concealed the fact that this R-Sync utility was involved at all in, in the the software update process.

[00:28:07] Speaker 00:
Now, there are a couple of things about their argument that, that I, I do want to point out.

[00:28:13] Speaker 00:
First of all,

[00:28:14] Speaker 00:
They say in their reply at page 37 that we argue that there was no evidence that certificates, this is the digital certificates, are involved in server software upside updates.

[00:28:25] Speaker 00:
We argued nothing of the kind and we wouldn't have because it doesn't make any difference whether certificates are involved.

[00:28:31] Speaker 00:
And then at page 40, they say the claim construction does not require that the digital certificate be included in the software.

[00:28:39] Speaker 00:
That is unfathomable.

[00:28:42] Speaker 00:
The construction of behavioral integrity is, quote, requiring software to include a digital certificate in order to be installed in a repository.

[00:28:51] Speaker 00:
And I mean, the reason that they want to get away from that is because R-Sync has nothing to do with whether digital certificates are included in software.

[00:29:01] Speaker 00:
R-Sync establishes a communications channel between two servers.

[00:29:06] Speaker 00:
It has nothing to do with

[00:29:08] Speaker 00:
the software that's transferred over.

[00:29:10] Speaker 00:
It's standard Linux, isn't it?

[00:29:12] Speaker 00:
Yes, exactly.

[00:29:13] Speaker 00:
It's a Unix system thing, yes.

[00:29:17] Speaker 03:
And I do want to... I want to come back, because I'm still confused about this.

[00:29:20] Speaker 03:
As I understand it, Apple was sanctioned for not turning over the source code.

[00:29:25] Speaker 03:
Am I wrong about that?

[00:29:28] Speaker 00:
I think you're... I hesitate to say wrong.

[00:29:31] Speaker 00:
I think there's a little bit of confusion.

[00:29:35] Speaker 00:
There was an argument about

[00:29:36] Speaker 00:
source code.

[00:29:37] Speaker 00:
And this is at the, this order is at appendix page 575, Judge Gilscraff's order.

[00:29:42] Speaker 00:
This is not in our sync issue.

[00:29:44] Speaker 00:
This had to do with actually something called correlation information.

[00:29:48] Speaker 00:
Apple produced 180 million lines of source code.

[00:29:51] Speaker 00:
All the source code it was supposed to produce.

[00:29:53] Speaker 00:
Content guard complained that we can't figure this out.

[00:29:56] Speaker 00:
So Apple did two things.

[00:29:58] Speaker 00:
One is it, it generated and produced correlation information that essentially says,

[00:30:03] Speaker 00:
Okay, this piece of the source code relates to this update for this device so that they could help, they could sort through it.

[00:30:09] Speaker 00:
Apple also, in November of 2014, offered to make an expert available.

[00:30:14] Speaker 00:
I'm sorry, an engineer available.

[00:30:16] Speaker 03:
Well, what was Apple sanctioned for?

[00:30:18] Speaker 00:
The judge, Judge Gilstrap.

[00:30:20] Speaker 00:
What page is that on?

[00:30:21] Speaker 00:
The, the order is at five, appendix 575.

[00:30:24] Speaker 00:
That's where it begins.

[00:30:26] Speaker 00:
The, Judge Gilstrap concluded that Apple had agreed to produce correlation information.

[00:30:32] Speaker 00:
and hadn't produced all of it in the proper form early enough in the discovery period.

[00:30:36] Speaker 00:
And for that reason, he granted their motion.

[00:30:39] Speaker 00:
He granted all the relief they requested, which was an Apple's expert, Dr. Kelly.

[00:30:43] Speaker 03:
Was the correlation information ultimately produced?

[00:30:45] Speaker 00:
Yes, it was.

[00:30:48] Speaker 00:
And the motion was to strike certain paragraphs from his report and preclude him from testifying about that subject matter.

[00:31:00] Speaker 00:
That was done.

[00:31:01] Speaker 00:
He didn't testify about that subject matter.

[00:31:03] Speaker 00:
Then they tried to raise the issue at trial.

[00:31:05] Speaker 00:
And Judge Gilstrap said, well, you asked me for relief.

[00:31:08] Speaker 00:
I gave you relief.

[00:31:09] Speaker 00:
Nothing's changed.

[00:31:11] Speaker 00:
And so he denied that request.

[00:31:13] Speaker 03:
What additional relief did they request at the trial?

[00:31:16] Speaker 00:
It's not even clear to me what additional relief they were requesting.

[00:31:20] Speaker 00:
I think they were trying to preclude other witnesses, fact witnesses, from testifying about how the Apple system works, because that somehow

[00:31:28] Speaker 00:
in their mind, at least, overlapped with what Dr. Kelly had been precluded from testifying about.

[00:31:34] Speaker 00:
But Judge Gilstreet basically said, well, you didn't ask me for that.

[00:31:36] Speaker 00:
I gave you what you wanted.

[00:31:38] Speaker 00:
And so what, you know, basically go away.

[00:31:42] Speaker 00:
We're done with this issue.

[00:31:44] Speaker 00:
Now, I do want to return just very, very briefly.

[00:31:48] Speaker 00:
Well, Your Honor, I was sort of baffled by that argument because

[00:31:54] Speaker 00:
First of all, I don't think even in any of the quotes that they produce that we said there was a factual dispute requiring resolution, we said a reasonable jury could find for us, which is the standard.

[00:32:04] Speaker 00:
And so to suggest that that's somehow a waiver or an agreement that the reasonable jury could find for them is kind of baffling.

[00:32:14] Speaker 00:
The last thing I want to say very quickly on the R-Sync issue.

[00:32:17] Speaker 00:
They claim that Ellen Ward, our engineer, somehow lied about R-Sync being involved in these software updates.

[00:32:24] Speaker 00:
I think it's important when you look at their brief, several places in both the opening brief and the reply brief, they quote his testimony saying these updates were installed locally, which they put in quotes, which he said.

[00:32:35] Speaker 00:
But then they say IE by hand, which he most assuredly did not say.

[00:32:40] Speaker 00:
And they have this notion that local installation means manually, basically an engineer is sitting at each machine putting a disk in or something.

[00:32:48] Speaker 00:
He never said that.

[00:32:49] Speaker 00:
Everybody knows that's not how it happens.

[00:32:51] Speaker 00:
So their suggestion that he somehow perjured himself is just offensive.

[00:32:54] Speaker 03:
OK, Mr. Trelo, we're out of time.

[00:32:56] Speaker 00:
Thank you, Your Honor.

[00:33:00] Speaker 03:
He used up all his time.

[00:33:02] Speaker 03:
We'll give you two minutes.

[00:33:03] Speaker 01:
Thank you, Your Honor.

[00:33:05] Speaker 01:
I would point to the Court's attention to appendix page 3205.

[00:33:08] Speaker 01:
Two minutes.

[00:33:10] Speaker 03:
Two minutes.

[00:33:12] Speaker 01:
32.05, because we did ask at that point, that was part of the claim construction briefing, where we said that an interpretation that requires anything more than a reference in the usage rights file and association to the content is incorrect.

[00:33:30] Speaker 03:
Where do you say that in the blue brief?

[00:33:33] Speaker 01:
We say it on page 15 of our brief, Your Honor.

[00:33:38] Speaker 01:
That was in our, I'm sorry, it was not in our blue brief.

[00:33:41] Speaker 01:
It was in our reply brief.

[00:33:43] Speaker 03:
Where do you say it in the blue brief?

[00:33:45] Speaker 03:
Where do you say in the blue brief that he shouldn't have used the word attached?

[00:33:49] Speaker 01:
That we shouldn't use the word attached.

[00:33:51] Speaker 01:
Right.

[00:33:52] Speaker 03:
Well, we said that in the blue brief, Your Honor, we... Where do you say in the blue brief that he shouldn't have used the word attached?

[00:33:58] Speaker 01:
Page 52, Your Honor.

[00:34:03] Speaker 01:
For all the reasons that the court should construe usage rights as indications that are associated with and that indicate a manner in which the document may be used or distributed, as well as any conditions on which use or distribution is premised.

[00:34:19] Speaker 01:
What we're saying is that we don't... That's your argument.

[00:34:21] Speaker 01:
Well, Your Honor, I believe we sent throughout that attachment was not a requirement of the usage rights claim term.

[00:34:30] Speaker 01:
That's what we said, Your Honor.

[00:34:31] Speaker 03:
We said that the... You can say all sorts of things throughout the proceeding below, but to bring it to this Court, you've got to put it in your blue brief.

[00:34:39] Speaker 03:
And you've got to put it in your blue brief in a way that's really argued, not mentioned in passing.

[00:34:45] Speaker 02:
And you're familiar with our authority that says a mere general statement is insufficient, aren't you?

[00:34:52] Speaker 01:
Indeed, Your Honor, but I'm sure that we said in the blue brief

[00:34:58] Speaker 01:
that when the court required there be an attached or treated as attached relationship between the usage rights and the content, that was error.

[00:35:08] Speaker 03:
And we pointed out that... Well, you're sure that you said that, but other than this passing reference and the conclusion, you can't point any place where you did.

[00:35:15] Speaker 01:
Well, I... Honestly, Your Honor, I'd have to... I'm sure I would like the opportunity to point that out to you, Your Honor.

[00:35:21] Speaker 02:
Well, you have the opportunity right now.

[00:35:22] Speaker 02:
Now, come on.

[00:35:23] Speaker 01:
You know, I don't have it memorized, Your Honor, with respect to... But you should.

[00:35:26] Speaker 02:
I expect counsel

[00:35:28] Speaker 02:
When I appeared in front of circuit courts, I expected if a court asked me to be able to say it's on the top of page seven of the appellant's opening brief, Your Honor.

[00:35:40] Speaker 03:
All right, we're out of time.

[00:35:41] Speaker 03:
We'll go on for the rest of the day.

[00:35:44] Speaker 03:
Our next case is number 1621.