[00:00:01] Speaker 03: And again, Mr. Thompson. [00:00:35] Speaker 03: Okay. [00:00:46] Speaker 03: Mr. Towns? [00:00:54] Speaker 04: Am I correct that the sole remaining issue is whether a new trial is warranted because the district court allowed Google over contents guards objection to mount an improper practicing the priority [00:01:05] Speaker 04: prosecution disclaimer defense? [00:01:07] Speaker 01: The usage rights issue is the same in both appeals, Ron, or yes. [00:01:12] Speaker 04: So that's the sole issue? [00:01:13] Speaker 01: That's the difference between the two, yes, Ron. [00:01:16] Speaker 01: And if there's no other questions on usage rights, I'm happy to address just the practicing the prior art defense. [00:01:22] Speaker 01: I would like the opportunity to address some of the usage rights issues, but I will move on to the practicing the prior art error in the evidentiary submissions in this trial, because [00:01:33] Speaker 01: That started with Google's opening, where they identified what they called this Prior Art Griswold License Server approach. [00:01:43] Speaker 01: And they told the jury that the case was going to come down to whether or not their system was more like the Griswold Prior Art License Server system or more like the Stefik invention. [00:02:00] Speaker 04: I may be able to... Because it's very clear. [00:02:03] Speaker 04: that there is no practicing the prior art defense to literal infringement. [00:02:11] Speaker 04: The parties, as a result, are prohibited from arguing that a plaintiff must prove the accused devices embody all the limitations in the asserted claims, and in addition, that the accused devices must not be an adoption of the combined teachings of the prior art. [00:02:32] Speaker 04: Where did Google argue that Condent Guard must make such an additional showing, additional showing? [00:02:41] Speaker 01: I don't think I'm following your question, Your Honor, and I apologize. [00:02:44] Speaker 04: Okay. [00:02:46] Speaker 01: You're asking me where did Google make the additional showing? [00:02:48] Speaker 04: No. [00:02:50] Speaker 04: Parties are prohibited from arguing that a plaintiff must prove embodiment of the limitations in the asserted claims, and in addition, [00:03:01] Speaker 04: They're also arguing that the accused devices must not be an adoption of the combined teachings of the prior art. [00:03:09] Speaker 04: That's Baxter Healthcare. [00:03:10] Speaker 01: They're prohibited from that. [00:03:11] Speaker 04: Yes. [00:03:12] Speaker 04: So where did Google argue that content gardeners make that additional showing of practicing the prior art? [00:03:22] Speaker 01: I don't believe they did, Your Honor. [00:03:24] Speaker 01: I don't take that and. [00:03:25] Speaker 01: I take that and as being disjunctive. [00:03:27] Speaker 01: I don't take that and as being conjunctive. [00:03:30] Speaker 01: In other words, [00:03:31] Speaker 01: I take that and that you just read in that sentence as meaning you can't say that you don't infringe because you practiced the prior art and you can't say you don't infringe because you practiced some combination of the prior art. [00:03:43] Speaker 01: So I take that as being you can't say that you don't infringe because what you've because you adopt wholeheartedly and 100 percent anticipate, in other words, the prior art. [00:03:59] Speaker 01: or because you're an obvious variant over the prior art, you don't infringe. [00:04:03] Speaker 03: OK, but back up a moment. [00:04:06] Speaker 03: You object to various statements that Google made in the course of the trial, right? [00:04:12] Speaker 01: I objected at the end of their opening, Your Honor, and that is in chambers. [00:04:17] Speaker 01: There's the transcript there. [00:04:19] Speaker 01: We've cited it in our joint appendix, where what I said to Judge Griswold was that this sounds like what they're trying to do. [00:04:27] Speaker 01: is urge a prosecution disclaimer type of argument. [00:04:33] Speaker 01: In other words, they're saying, look... Where do we find that in the record? [00:04:58] Speaker 01: Appendix page 10704 to 707. [00:05:01] Speaker 03: Which volume is that? [00:05:03] Speaker 01: That would be volume four. [00:05:08] Speaker 01: Two. [00:05:09] Speaker 02: What was that? [00:05:10] Speaker 02: What was that, counsel? [00:05:12] Speaker 01: Appendix page 10704 to 10707. [00:05:16] Speaker 04: And it was in volume four. [00:05:36] Speaker 01: Yes, Your Honor. [00:05:37] Speaker 01: Volume 4. [00:05:38] Speaker 01: And that's where, after the opening and before any of the evidence was submitted during the trial, I raised with Judge Gilstrap the problem that I saw in the opening where they were making an association and telling the jury they could compare their accused device to this prior Art Griswold and see that it was more like the Griswold, quote, licensed server than the Stefik, quote, trusted system. [00:06:06] Speaker 01: And I said, what they were doing there was they were saying, look what Dr. Stefik said in the background of the invention section of his patents about this Griswold device. [00:06:18] Speaker 01: He said that's not what he invented. [00:06:21] Speaker 01: We're going to show you that that's what we're doing. [00:06:24] Speaker 01: And I told the district court that that was improper, and that I thought it was improper. [00:06:28] Speaker 03: Yeah, but I'm not seeing in here where you said it was improper because it was practicing the priority. [00:06:34] Speaker 01: Well, I said it was prosecution disclaimer, Your Honor, but I mean, the... So the difference. [00:06:39] Speaker 01: Well, the fact is they were trying to urge that what they were doing was something that the inventor had said was in the prior arc. [00:06:45] Speaker 03: Did you ever raise an objection in the course of the trial where you characterized what they were doing as a practice in the prior arc defense? [00:06:51] Speaker 01: I don't believe I did, Your Honor. [00:06:52] Speaker 01: I believe I called it a disclaimer because I think that in this instance it was one and the same thing. [00:06:57] Speaker 01: They were comparing their device to something that they said the inventor distinguished and criticized. [00:07:03] Speaker 01: That's on the opening page of their brief. [00:07:06] Speaker 01: They come in and they say, [00:07:07] Speaker 01: The inventor, Dr. Stefik, distinguished and criticized the license server approach. [00:07:12] Speaker 03: But as a matter of claim construction, there's nothing wrong with that. [00:07:14] Speaker 03: If the prior art is criticized, we have cases saying, well, in interpreting the claims, you can take that into account. [00:07:22] Speaker 03: There's nothing wrong with that. [00:07:24] Speaker 03: It may, in a particular case, be an argument that's successful or unsuccessful, but it's not improper. [00:07:32] Speaker 01: But where it needs to be brought up, Your Honor, is at the markman phase, not in front of the jury. [00:07:37] Speaker 03: Okay. [00:07:38] Speaker 01: And so it wasn't brought up at the marketing phase. [00:07:40] Speaker 01: There was never an argument raised. [00:07:42] Speaker 03: That's a different argument than practicing the prior argument. [00:07:46] Speaker 01: What I said, Your Honor, was that what they were doing was improper. [00:07:49] Speaker 01: They were presenting an argument to the jury that said, look, what we're doing is what the inventor said his invention was different than. [00:07:57] Speaker 01: Now one could call and we're saying, and then they said, and we're doing what the inventor said he didn't like and didn't invent. [00:08:06] Speaker 01: Now, [00:08:07] Speaker 01: We could sit here and say that whether or not I should have called that a practicing the prior art or the prosecution disclaimer. [00:08:13] Speaker 01: But the substance of what was going on there was that they were trying to urge that the jury compare their device with this Griswold prior art because they said the Griswold prior art was something the inventor distinguished in the background of the invention section. [00:08:30] Speaker 01: Now, if that were a limitation on the scope of the claims, [00:08:34] Speaker 01: That was something that should have been raised at the markman phase. [00:08:38] Speaker 01: They should have gone into the district court and said, the scope of these claims, even if their literal language might otherwise grab this alleged licensed server. [00:08:48] Speaker 02: Your argument here has some sense to it. [00:08:51] Speaker 02: But I don't see that argument in your objection. [00:08:55] Speaker 02: And it's hard for me to see that the judge would discern the legal argument you're making now based on what was said. [00:09:04] Speaker 01: I think I told Judge Gilstrap exactly that, that what they were trying to do was to say that this, their accused device was like the Griswold license server, and therefore it didn't infringe. [00:09:19] Speaker 01: And I said what that was, was an attempt to carve out from the scope, the literal language of the claims, something that was allegedly distinguished. [00:09:30] Speaker 01: And that was what I meant by prosecution disclaimer. [00:09:34] Speaker 01: I thought that what, and I think I explained that to Judge Gillstrap quite clearly. [00:09:40] Speaker 01: I mean, there's three pages of me explaining what it was they were trying to do. [00:09:45] Speaker 01: And that is that they were trying to sit there and compare their device to something that the inventor had described in his background section. [00:09:55] Speaker 01: And then they came in, and even with their expert's testimony, their expert put slides up on the overhead. [00:10:03] Speaker 01: that showed this is Griswold, this is the accused Google system, this is a figure from the Steffick patent. [00:10:10] Speaker 01: Let me show you which one is the accused system is closer to. [00:10:13] Speaker 01: And he said, look, it's closer to this Griswold system, the one that Dr. Steffick said he didn't invent. [00:10:21] Speaker 01: And they were permitted to do that, and that's what I objected to with Judge Gilstrap. [00:10:27] Speaker 01: And I do believe that I made that clear, that what they were trying to do was an improper non-infringement argument by trying to convince this jury that they could shortcut the proper analysis and cutting through and comparing to the claims by arguing that all the jury needed to do was decide whether or not the accused device was closer to this alleged Griswold license server or whatever they were describing as the Dr. Steffick's invention. [00:10:55] Speaker 04: In order to prove infringement, Content Guard was required to demonstrate that the accused products practiced both the repository limitation and the usage right limitation. [00:11:09] Speaker 04: Absolutely, Your Honor. [00:11:12] Speaker 04: Do you dispute that Google presented evidence at trial that the accused products practiced neither? [00:11:19] Speaker 04: Some evidence. [00:11:20] Speaker 01: They certainly tried to present evidence on both those issues, yes, Your Honor. [00:11:23] Speaker 01: And they solicited testimony. [00:11:25] Speaker 04: And the jury found that? [00:11:27] Speaker 01: We don't know what the jury found. [00:11:29] Speaker 01: The jury found non-infringement. [00:11:30] Speaker 01: We don't know the basis for it. [00:11:31] Speaker 01: It was a general verdict, Your Honor. [00:11:34] Speaker 01: But I also would point out that we presented evidence through the testimony of our expert, where it was very clear that what was being practiced in the Google system met each of the integrities. [00:11:49] Speaker 04: Do you agree where the district court says that, I'm quoting from the court, it properly and specifically instructed the jury that when answering the question of infringement, they were only to compare the accused products to the asserted claims and were never to compare the accused products to the priority? [00:12:08] Speaker 01: I don't dispute that, Your Honor. [00:12:09] Speaker 01: I worked on those jury instructions. [00:12:11] Speaker 01: I know it was in there. [00:12:13] Speaker 01: Honestly, Your Honor, I don't think that cures the harm here because the jury was told once, at the very end of the case, after they had heard consistent testimony about what this alleged Griswold license... That's what jury instructions do. [00:12:29] Speaker 01: Indeed, Your Honor, but I don't think it's fair. [00:12:32] Speaker 01: It's not a fair trial when the jury is permitted to hear testimony throughout the course of the trial that's inconsistent with one line in a 30-page jury instruction. [00:12:42] Speaker 01: Not that there's any other way to get it into the instruction. [00:12:45] Speaker 03: The only time you object it, if I understand correctly, is after the opening argument, right? [00:12:50] Speaker 01: Indeed. [00:12:51] Speaker 01: And that was at that point, the judge had told me, no, I'm going to let them move forward with this argument. [00:12:58] Speaker 01: And they're going to be able to, because they said in their opening, they were comparing it. [00:13:03] Speaker 03: What exactly did the judge say? [00:13:05] Speaker 01: The judge just overruled my objection, Your Honor. [00:13:08] Speaker 01: The objection's overruled. [00:13:10] Speaker 01: I believe it's on page. [00:13:11] Speaker 01: But no, did I stand up throughout the course of that trial every time they tried to compare their product to the [00:13:35] Speaker 01: alleged prior art product. [00:13:38] Speaker 01: I did not, because that was the objection I raised that they did in their opening, and I said they shouldn't be permitted to do that. [00:13:45] Speaker 01: What they were trying to argue was that there was some measure of limitation or surrender on the scope of the claims, and that that was an improper argument to be presented to the jury. [00:13:56] Speaker 01: And the way they did that is by comparing it to the prior art. [00:14:00] Speaker 01: and by saying they're more like the prior. [00:14:03] Speaker 03: I'm not sure that objecting once and getting the ruling that you did on 10-707 preserves the objection for the rest of the trial. [00:14:11] Speaker 03: That's the problem. [00:14:12] Speaker 03: And then you have the jury instruction on top of that. [00:14:16] Speaker 01: Well, the jury instructions didn't come until the end of the trial, Your Honor. [00:14:18] Speaker 01: I understand. [00:14:18] Speaker 01: I mean, respectfully, when I stand up in front of trial judges and keep making the same objection that they've already overruled, I tend to get a pretty negative response. [00:14:27] Speaker 01: I don't know what else to tell you. [00:14:30] Speaker 03: I'm sorry, Your Honor. [00:14:31] Speaker 03: You can ask for a continuing objection to it. [00:14:35] Speaker 01: I could, Your Honor. [00:14:36] Speaker 01: And I didn't. [00:14:37] Speaker 01: But at that point, it was clear to me what the ruling on the objection was. [00:14:42] Speaker 01: And we were under a time slot. [00:14:44] Speaker 01: And Judge Gilstrap tried plenty of cases. [00:14:46] Speaker 01: He's an excellent trial judge. [00:14:48] Speaker 01: He moves his cases along. [00:14:49] Speaker 01: I've tried numerous cases in front of him. [00:14:52] Speaker 01: I knew what he decided. [00:14:53] Speaker 01: And everybody else knew what he decided. [00:14:56] Speaker 01: And trying to get him to repeat it didn't seem like it was necessary. [00:15:00] Speaker 02: I don't have a problem with there being one objection during the trial. [00:15:04] Speaker 02: And I understand that many judges wouldn't entertain somebody standing up and making multiple objections. [00:15:11] Speaker 02: But what I do see that's lacking here is a well-stated objection. [00:15:15] Speaker 02: And you're making good arguments today. [00:15:18] Speaker 02: But those arguments, I mean, I have to read and reread and infer what you're saying in the record. [00:15:25] Speaker 02: And so when the judge, for the same reason he doesn't want [00:15:29] Speaker 02: continuing objections. [00:15:30] Speaker 02: He does want a clearly stated objection. [00:15:33] Speaker 02: I'm not sure I can say that the judge abused his discretion by overruling your objection. [00:15:40] Speaker 02: And that's a high standard. [00:15:42] Speaker 01: Indeed it is, Your Honor. [00:15:43] Speaker 01: And we realize it's a high standard. [00:15:44] Speaker 01: But in this instance, I do believe that what we're getting to is form over substance. [00:15:50] Speaker 01: I explained to the judge the improper motive and the improper way in which their non-infringement argument was being presented. [00:15:58] Speaker 01: Yes, did I call it prosecution disclaimer? [00:16:01] Speaker 01: I did, because they were comparing it to something that they said the inventor had distinguished. [00:16:07] Speaker 01: And then they were going to say, and I did say this in the objection, they were going to say, and we do what the inventor distinguished. [00:16:15] Speaker 01: Therefore, we fall within the scope of whatever was carved out of the literal language of those claims. [00:16:22] Speaker 01: And I did say that, Your Honor. [00:16:24] Speaker 03: We're fairly respectful. [00:16:26] Speaker 03: Wait, but you have to stop talking. [00:16:28] Speaker 01: Yes, Your Honor. [00:16:29] Speaker 03: We're out of time. [00:16:29] Speaker 03: We'll give you two minutes for rebuttal. [00:16:31] Speaker 01: Yes, Your Honor. [00:16:31] Speaker 01: Thank you. [00:16:34] Speaker 03: Mr. Unicol, is that how you pronounce that? [00:16:35] Speaker 03: Yes. [00:16:36] Speaker 03: Thank you, Your Honor. [00:16:41] Speaker 00: Good morning. [00:16:42] Speaker 00: May it please the Court, Robert Unicol on behalf of Appellees and Cross Appellants. [00:16:46] Speaker 03: I do think it's a little troubling that this argument was made that the jury should look at the specification and see the prior art that was being criticized. [00:16:59] Speaker 03: I mean, that's really not a matter for the jury. [00:17:01] Speaker 03: It's a matter for claim construction. [00:17:03] Speaker 00: I agree, Your Honor. [00:17:04] Speaker 00: If that's the argument that we had made, that would have perhaps been inappropriate. [00:17:08] Speaker 00: But the argument that we made at trial. [00:17:09] Speaker 04: You made an approach argument, as I recall. [00:17:11] Speaker 04: I'm sorry? [00:17:12] Speaker 04: You said you compared approaches [00:17:15] Speaker 00: Correct. [00:17:15] Speaker 00: In fact, I didn't compare the approaches. [00:17:17] Speaker 00: The patents compared the approaches. [00:17:19] Speaker 00: In fact, on appendix page 371 from one of the content guard patents, it begins by saying, two basic DRM schemes have been employed, secure containers and trusted systems. [00:17:32] Speaker 00: The patent itself, which the jury was being asked to consider, set up a difference between two approaches. [00:17:39] Speaker 00: We then had to explain to the jury what is the difference between the two approaches and why did the approach that Google took and Appellees took not use the specific claim elements that were then called out in the claims. [00:17:52] Speaker 00: And those elements were usage rights that are attached or treated as attached to content, physical integrity, and behavioral integrity. [00:18:00] Speaker 00: And the fact that these were a focus of the trial, by the way, is demonstrated by the amount of effort that is now being gone in on appeal [00:18:07] Speaker 00: to talking about all the proof that went in on these three particular claim elements. [00:18:12] Speaker 00: Our argument was never, never once, we practice the prior art, therefore there's no infringement. [00:18:18] Speaker 03: Well, I understand that. [00:18:19] Speaker 03: And I've read enough of the transcript to know that you didn't make that argument. [00:18:22] Speaker 03: But it does seem to me that you made an argument about infringement that made reference to the prior art and what it covered and what was disparaged in the specification. [00:18:34] Speaker 03: Am I wrong about that? [00:18:36] Speaker 00: Yes, Your Honor. [00:18:37] Speaker 00: The reason you're wrong, first of all, much of the discussion of Griswold was focused on the invalidity case, because Griswold was raised as an invalidating reference. [00:18:46] Speaker 00: And it was Content Guard that responded to the invalidity analysis on Griswold by saying what Griswold lacked was attached usage rights. [00:18:55] Speaker 03: No, no. [00:18:55] Speaker 03: Insofar as prior art might have been raised in connection with invalidity, that's not a problem. [00:19:02] Speaker 03: What we're talking about [00:19:03] Speaker 03: is that the comparison of the prior R was raised to some extent in connection with the infringement issue. [00:19:11] Speaker 03: And that's correct, isn't it? [00:19:13] Speaker 00: Yes, to highlight the elements that were missing from R's that were not required to be in our system based on the secure container approach. [00:19:22] Speaker 00: Because in that, to use an analogy from sports, Your Honors, if you had an innovation that was related to playing zone defense in basketball and [00:19:32] Speaker 00: You were trying to distinguish and highlight the benefits of that over man-to-man defense. [00:19:38] Speaker 00: You would need to explain and understand, what does it mean to play man-to-man defense? [00:19:42] Speaker 00: What does it mean to play zone defense? [00:19:44] Speaker 00: And when you understand that, you can understand why certain things that apply in a zone defense context don't apply in a man-to-man context. [00:19:52] Speaker 00: Here, the patents are clear on their face that there are two different approaches that were known in the art. [00:19:57] Speaker 00: Google took an approach that did not require it to use [00:20:01] Speaker 00: Usage rights, physical integrity, or behavioral integrity. [00:20:05] Speaker 00: And I might add, Your Honor, that in the pages that supposedly contain the objection that was made at trial, first, not only does it not mention practicing the prior art. [00:20:14] Speaker 03: No, it doesn't. [00:20:15] Speaker 03: It doesn't. [00:20:16] Speaker 03: That's not what we're talking about now. [00:20:17] Speaker 03: We're talking about making a claim construction argument to the jury. [00:20:23] Speaker 03: Where do I find what it is that you said in your opening statement to which they objected? [00:20:32] Speaker 00: I don't know that there were specific objections that they included in the opening statement that would... What are they talking about now? [00:20:39] Speaker 00: I'm not sure what statements they're referring to now, to be honest with you, Your Honor. [00:20:42] Speaker 02: I'll look at... This goes back to 10-704. [00:20:45] Speaker 02: Mr. Thomas says, I have... He has an objection or a statement. [00:20:50] Speaker 02: He says, yesterday during the opening, it appeared that Mr. Yuckel was telling the jury that he was going to try to prove that something. [00:20:58] Speaker 02: So maybe it was in the opening statement. [00:21:00] Speaker 00: And if I may, on page 10705 of the appendix, Your Honor, where I'm actually responding to that. [00:21:07] Speaker 03: Is what you said that he objected to in the appendix? [00:21:15] Speaker 00: Not that I'm aware of, Your Honor. [00:21:16] Speaker 00: I am not certain, based either on his objection to this particular, that he's now pointing to in this particular group of pages, or in the brief, what particular statements or comparisons he's objecting to. [00:21:30] Speaker 00: obviously the district court judge who sat through the entire trial heard all the evidence was finally presented with this argument in the motion for new trial the judge in his opinion denying the motion for new trial said based on his sitting through all the evidence that there that there was no practicing the prior art defense and that we had in fact focused appropriately on missing elements for the infringement case and I might point out in this this colloquy about the objection that they made [00:21:58] Speaker 00: on appendix page 10705 at the bottom, you'll see in my response I focus on the fact that it's the absence of the specific claim limitation, usage rights that are attached or treated as attached, that is what is important. [00:22:13] Speaker 00: And the discussion of the prior art is only meant to provide context for why people of skill in the art would in fact not understand Google's system as employing usage rights that are attached or treated as attached to content. [00:22:26] Speaker 00: And that is stated [00:22:28] Speaker 00: multiple times on page 10705, part of the colloquy that is being cited by content guard. [00:22:35] Speaker 00: Where I say, for example, what we are saying is when a person of ordinary skill in the art is applying these claim limitations, and in particular, the usage rights are attached or treat as attached. [00:22:45] Speaker 04: You left out your cough. [00:22:46] Speaker 00: I'm sorry. [00:22:47] Speaker 00: I did leave out my cough. [00:22:49] Speaker 00: They would do that in the light of the specification and in the light of the understanding of the art that exists to those people. [00:22:58] Speaker 00: There is a difference in the art between how people understand licenses that are distributed from license servers and how they're distributed from a single server. [00:23:05] Speaker 00: And we're only arguing that a person of skill in the art understanding the court's claim construction of attached or treated as attached would not believe that that applies to a license that is sent from a license server separate from the content. [00:23:18] Speaker 00: What we told the district court judge and what we pursued was that this the background discussion sounds a lot like arguing claim construction. [00:23:27] Speaker 00: We were not, Your Honor, we were not arguing claim construction. [00:23:31] Speaker 00: We were obligated to present to the jury evidence as to whether or not we met the court's claim construction. [00:23:37] Speaker 00: And the court agreed that the question of whether or not our licenses were attached or treated as attached was a question based that the jury was going to have to resolve based on that construction. [00:23:49] Speaker 00: The question of how people of ordinary skill in the art understood the license server approach versus the trusted system approach. [00:23:56] Speaker 00: which their patents call out as being the two distinct approaches, was the issue for the jury that was not objected to after this colloquy, which doesn't even mention practicing the prior art. [00:24:08] Speaker 03: And when it was finally raised... We're talking about practicing the prior art. [00:24:11] Speaker 03: That's not the issue. [00:24:13] Speaker 00: I apologize, Your Honor. [00:24:13] Speaker 00: That's the issue that I thought concept art had raised. [00:24:16] Speaker 03: They've characterized it. [00:24:18] Speaker 03: That's not the issue. [00:24:19] Speaker 03: The issue is whether you were already in claim construction for the jury. [00:24:23] Speaker 00: I do not believe we were, Your Honor. [00:24:25] Speaker 00: presenting evidence to the jury, an argument to the jury about why our system did not, in fact, use usage rights that are attached or treated as attached based on the court's construction. [00:24:39] Speaker 00: Your Honor, I might add one other point, which is there was a jury instruction in the case. [00:24:46] Speaker 00: The jury instruction was very clear on directing the appropriate comparison that was supposed to be made. [00:24:52] Speaker 00: elements of the claims to the accused instrumentality, not from the accused instrumentality to any prior art. [00:24:59] Speaker 00: There was no objection to that instruction. [00:25:02] Speaker 00: In fact, that instruction was agreed on by the parties. [00:25:05] Speaker 00: The judge issued that instruction. [00:25:06] Speaker 00: There's no suggestion in the record that somehow the jury was confused or did not apply that instruction. [00:25:14] Speaker 00: And in fact, if you look at the entirety of the openings and the closings, not just cherry picked paragraphs, what you'll see is that on non-infringement, [00:25:21] Speaker 00: We argued the absence of three specific claim elements based on the court's constructions expressly, usage rights, physical integrity, behavioral integrity. [00:25:33] Speaker 00: Your Honor, if I might, one thing I'd like to point out that's unique to our case as opposed to the Google case is the physical integrity limitation. [00:25:41] Speaker 00: We did, in fact, present undisputed evidence at trial from their expert [00:25:48] Speaker 00: Their expert, Dr. Martin, conceded that he was able to access information about licenses and about the digital works themselves from the Google system. [00:26:00] Speaker 00: The construction of physical integrity is not being contested by Content Guard in this appeal. [00:26:06] Speaker 00: That construction prevents access to information in a repository by a non-trusted system. [00:26:13] Speaker 00: There was no suggestion below by Content Guard [00:26:17] Speaker 00: that information was something specific or needed. [00:26:19] Speaker 04: Your opposing counsel conceded that you presented evidence and that it went to the jury. [00:26:25] Speaker 04: So there you go. [00:26:28] Speaker 00: Fair enough, Your Honor. [00:26:29] Speaker 00: I guess the only point I would make in addition to that concession is there was no substantial evidence to support a finding of infringement of that element. [00:26:38] Speaker 00: Not only did we present evidence that established non-infringement, including the admissions from their expert, [00:26:43] Speaker 00: But in fact, there was no evidence that was presented that would suggest infringement of that element. [00:26:49] Speaker 00: Because even their own experts admitted they were able to access information about the licenses, about the digital works from the Google system. [00:26:57] Speaker 00: And that testimony is on page 38 of the red brief. [00:27:02] Speaker 00: I suppose I should mention, just in case the court has any interest in it, that we do have a section 101 argument, among others, in our cross appeal. [00:27:11] Speaker 00: And I would just want to point out that in the briefing on this issue, Content Guard does not actually disagree that the library loan transaction is the pre-internet analog for what they're claiming in their claims. [00:27:28] Speaker 00: What they say, and what they said at the district court level is, but we have three integrities that have to be applied to a computer in order to make it a repository. [00:27:40] Speaker 00: But if you look at the constructions that nobody's challenging of those three integrities, they are really nothing more than functional goals. [00:27:49] Speaker 00: They're not specific as to either hardware or software. [00:27:52] Speaker 00: So physical integrity prevents access to information. [00:27:56] Speaker 03: We don't need to reach these issues if we agree with you on infringement. [00:28:00] Speaker 03: That's correct, Your Honor. [00:28:03] Speaker 00: With that in mind, if there are no other questions, I'll see the rest of my time for rebuttal. [00:28:09] Speaker 03: Okay, thank you, Mr. Unicow. [00:28:11] Speaker 03: Mr. Thomas? [00:28:15] Speaker 01: The statements in the opening that Mr. Unicow made are at appendix page 10-582. [00:28:23] Speaker 01: He says, on your screens, you will see a paragraph straight out of the patent that criticizes Mr. Griswold's license server system. [00:28:33] Speaker 01: So he's, and that's at [00:28:35] Speaker 01: lines 21 through 24 at 10-582. [00:28:39] Speaker 02: This is the opening statement. [00:28:42] Speaker 01: This is the opening statement. [00:28:43] Speaker 01: And then again, at 10-586, at lines 5 through 9, Mr. Unickel told the jury in his opening, this case will come down to whether you believe Google is using the license server approach. [00:28:57] Speaker 01: The only license server approach he referenced was out of the prior Griswold system. [00:29:02] Speaker 01: or whether you believe they're using Dr. Steffich's Trusted System approach, plain and simple. [00:29:09] Speaker 01: That's what I was objecting to, Your Honor. [00:29:11] Speaker 01: That, to me, looked like it was going straight to what I characterize as prosecution disclaimer. [00:29:18] Speaker 01: But I do believe that it is an analogous thing to a practicing the prior art, because what he was trying to do was say, we practice what was disclaimed by Dr. Griswold. [00:29:30] Speaker 01: And what was disclaimed by Dr. Griswold was, I'm sorry, the Dr. Stefik in the Griswold system was in the prior art. [00:29:39] Speaker 01: That said, Your Honor, I'll also point out that Google doesn't really challenge in their briefs the kinds of arguments they made to the jury. [00:29:46] Speaker 01: What they say is, we didn't say we practiced the prior art. [00:29:50] Speaker 01: We said we were analogous to the prior art. [00:29:53] Speaker 01: And that's on page 45 of their brief. [00:29:56] Speaker 01: So they were trying to excuse this. [00:29:57] Speaker 01: We didn't say we were the same as the prior art, so we don't infringe. [00:30:01] Speaker 01: We said we were analogous to the prior art, so we don't infringe. [00:30:06] Speaker 01: And that, Your Honor, is a distinction without a difference. [00:30:11] Speaker 02: In accordance to your objection, this is at 10-706, line 15. [00:30:18] Speaker 02: He didn't just overrule you. [00:30:21] Speaker 02: I mean, he actually gave you an approach you can use to address the problem. [00:30:28] Speaker 02: And he says that Dr. Stefik is your witness. [00:30:31] Speaker 02: You put him up there. [00:30:33] Speaker 02: It's fair to question him about what the pants you wrote. [00:30:37] Speaker 01: But he also overruled my objection, Your Honor. [00:30:41] Speaker 02: He overruled it, but then he also [00:30:43] Speaker 01: said if there's a problem later on, he offered you a... Oh, and we did have Dr. Stefik explain that the license server that he was describing was actually different than his invention because it required a constant communication link back to the license server. [00:31:00] Speaker 01: Each of the claims in this suit required that the usage rights be enforced on the user's computer. [00:31:08] Speaker 01: not, and so that the license, the usage rights, have to be enforceable on the user's computer. [00:31:14] Speaker 01: That's what the claims require. [00:31:16] Speaker 01: They don't require any particular way for the computer to find the usage rights that are applicable to a particular movie, but certainly there has to be a way for the system to enforce those rights. [00:31:29] Speaker 01: But that's where the district court, we think, went afield. [00:31:32] Speaker 03: If I might just... I think we're out of time, Mr. Thompson. [00:31:35] Speaker 01: If I might just one thing... No, no. [00:31:37] Speaker 01: Yes, Your Honor. [00:31:37] Speaker 01: Thank you very much. [00:31:38] Speaker 01: Thank both counsels. [00:31:40] Speaker 01: The case is submitted. [00:31:41] Speaker 03: Thank you, Your Honor.