[00:00:01] Speaker 05:
Our next case is 2016-2684, Core Wireless Licensing versus LG Electronics.

[00:00:37] Speaker 05:
Mr. Phillips, please proceed.

[00:00:38] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:41] Speaker 04:
I think the first and most fundamental issue in this case is whether or not the patent in this case satisfies Section 101, as the Supreme Court articulated the standards and analysis.

[00:00:54] Speaker 04:
There are two tests, as the Court is well aware.

[00:00:56] Speaker 04:
The first is whether it's directed at a patentable subject matter.

[00:01:00] Speaker 04:
And here we're talking about a patent that does not remotely involve any serious technology.

[00:01:04] Speaker 02:
I don't see anywhere in the record below that you presented the argument, the abstract idea that you're framing here, that you presented that to the lower court at all.

[00:01:16] Speaker 04:
Well, the particularized version of it, the index, was not the way we conceptualized it at the time.

[00:01:22] Speaker 04:
But the basic idea, and obviously if you make the one-on-one argument and the issue is, is it directed at an abstract idea, then you have to necessarily sort of, what is the concept, what is the

[00:01:35] Speaker 04:
what is the concrete element of it.

[00:01:37] Speaker 04:
We thought it was easier to understand as an index, as comparable to an index, but the reality is that's not critical to our argument.

[00:01:42] Speaker 02:
So you're saying that all you have to do is raise the 101 flag, and it doesn't matter what argument you make below, you can make any argument you want up here?

[00:01:50] Speaker 04:
Well, I actually think that's probably true, unless you would somehow have misled the trial court by not appearing to have made a true 101 argument.

[00:01:58] Speaker 05:
You say that's probably true.

[00:02:00] Speaker 05:
I don't understand why.

[00:02:01] Speaker 05:
In claim construction, we have frequently held that you can't articulate a new claim construction on appeal for the first time if it's not the one you argued below.

[00:02:10] Speaker 05:
So why should you be able to argue a new abstract idea on appeal if it's not the one you argued below?

[00:02:17] Speaker 04:
Well, the way I understand Supreme Court's decisions in a variety of cases is if you raise the fundamental legal issue,

[00:02:25] Speaker 04:
the precise method by which you articulate that particular legal issue is not critical.

[00:02:30] Speaker 04:
And again, I don't need the, I mean, we use the index metaphor because we thought it helped to sort of put this in context, but the reality is you don't need that.

[00:02:38] Speaker 04:
At the end of the day, all you're talking about is collecting and summarizing information and displaying it on a computing device.

[00:02:47] Speaker 05:
What would be your best case for the idea?

[00:02:48] Speaker 05:
I mean, Waiver was certainly argued by LG with this indexing argument.

[00:02:52] Speaker 05:
What would be

[00:02:53] Speaker 05:
You said it's your understanding under Supreme Court law that if it's a question of law, you can make any argument you want on appeal related to that question of law.

[00:03:01] Speaker 05:
What would be your best Supreme Court precedent for that understanding of the law?

[00:03:07] Speaker 04:
I'm trying to remember the specific name.

[00:03:10] Speaker 04:
I will give you the specific name of the case, but it's the Takings case that comes out of the Supreme Court.

[00:03:15] Speaker 04:
Justice O'Connor wrote the opinion in which she said,

[00:03:18] Speaker 04:
exactly how you articulate the takings issue is irrelevant.

[00:03:22] Speaker 04:
The question is, did you present a fair takings issue?

[00:03:24] Speaker 04:
The question here is, did we fairly present a one-on-one issue to the court?

[00:03:28] Speaker 04:
And I'll go back to what I said.

[00:03:29] Speaker 04:
I don't need you to accept my argument that this is an index in order to determine that it is nevertheless not in a patentable subject matter.

[00:03:37] Speaker 04:
Because again, all this patent does is collect information and display the information in a way that makes it more efficient for the user.

[00:03:46] Speaker 04:
It has nothing to do, frankly, with the way the computer operates.

[00:03:50] Speaker 04:
That's the 101.

[00:03:51] Speaker 03:
Mr. Phillips, let me take you from the sublime to the mundane.

[00:03:58] Speaker 03:
You argue that an unlaunched state has to mean not running.

[00:04:02] Speaker 03:
And these are my ignorant questions in the margins of the brief, so pardon me.

[00:04:07] Speaker 03:
But can an application be launched and minimized in effect

[00:04:17] Speaker 03:
Does the term launch preclude an app that's running but is minimized so you don't see it?

[00:04:25] Speaker 04:
Yes.

[00:04:25] Speaker 04:
I mean, that's not an unlaunched state.

[00:04:28] Speaker 04:
That's a launch state.

[00:04:28] Speaker 04:
It's running.

[00:04:29] Speaker 03:
I mean, our view of the world is... I'm just trying to clarify in my mind what your argument is.

[00:04:34] Speaker 04:
Yeah.

[00:04:34] Speaker 04:
Our argument is, from our perspective, the key for LG and the key, I think, for the prior art is that

[00:04:42] Speaker 04:
you're trying to tap in to the information of the running as it runs.

[00:04:46] Speaker 04:
And you're tapping into it as you go along.

[00:04:48] Speaker 03:
Oh, I understood you.

[00:04:49] Speaker 04:
Whereas with this invention, what it's trying to do is say, as soon as you launch it and it starts running, it will provide you with the information.

[00:04:58] Speaker 04:
So in effect, it's minimized under their argument.

[00:05:02] Speaker 04:
Yeah.

[00:05:03] Speaker 04:
You could view it that way.

[00:05:04] Speaker 04:
Although I suspect they wouldn't limit it to that particular context.

[00:05:07] Speaker 04:
It could be either minimized or just somewhere else in the system.

[00:05:11] Speaker 04:
capable of being launched.

[00:05:14] Speaker 04:
But the key here is, to me at least, that in the prosecution history, being in an unlaunched state would... Let me back you up though.

[00:05:22] Speaker 03:
You just said capable of being launched.

[00:05:25] Speaker 04:
I mean, it's capable of running or it's... Running.

[00:05:28] Speaker 03:
Your position is what they're saying is they're describing it as launched when it's in that state.

[00:05:38] Speaker 04:
Right.

[00:05:39] Speaker 04:
Well, yeah.

[00:05:40] Speaker 04:
I suppose that you can think of it that way.

[00:05:42] Speaker 04:
I mean, the way I think about it is, in our system, everything is unlaunched.

[00:05:48] Speaker 04:
Everything is launched.

[00:05:51] Speaker 04:
It's going on.

[00:05:52] Speaker 04:
Whether you can see it or not is irrelevant to anything.

[00:05:54] Speaker 04:
And we're pulling information in because that's the purpose of the patent.

[00:05:57] Speaker 04:
Theirs doesn't care about that.

[00:05:59] Speaker 04:
Theirs is simply a method of making it easy to find something.

[00:06:03] Speaker 04:
They don't care what the information is in.

[00:06:05] Speaker 04:
They're happy to take information away.

[00:06:07] Speaker 04:
But what they're really trying to do is say,

[00:06:09] Speaker 04:
once you launch, then you can easily see, you can see what you want and then you can launch it and then you can get whatever information you want from it.

[00:06:16] Speaker 04:
That's the purpose of the entire invention.

[00:06:19] Speaker 03:
Core says that if we find in your favor on construction of Unlaunched State, we still have to remand on factual findings on infringement.

[00:06:31] Speaker 04:
I don't think that's true.

[00:06:32] Speaker 04:
I think it is absolutely clear the only way this operates is in a, and our system is in a

[00:06:38] Speaker 04:
launched state.

[00:06:40] Speaker 04:
That's how our system operates.

[00:06:42] Speaker 04:
So I don't believe that's true.

[00:06:43] Speaker 04:
On the other hand, if the court felt that a remand was appropriate under those circumstances, I wouldn't object to it in that sense, because I think at the end of the day, the district court would almost certainly either do one of two things, find that as a matter of law, there is no violation under these circumstances, or hold it until the IPR proceedings, which are going forward at this stage, have made their way through and find out whether it's because of the IPR

[00:07:08] Speaker 04:
the patent is otherwise invalid.

[00:07:10] Speaker 02:
Has the second damages trial occurred yet?

[00:07:12] Speaker 04:
No.

[00:07:12] Speaker 04:
No, everything has been stayed at this stage, waiting both, I think, this appeal and the IPR.

[00:07:18] Speaker 04:
I think it's going to wait for the IPR appeals as well.

[00:07:22] Speaker 04:
And if this court wanted to hold this and wait for the IPR appeals as well, that would be a not inefficient use of the court's exercise as well.

[00:07:33] Speaker 03:
Your argument's on anticipation.

[00:07:36] Speaker 03:
are predicated on the district court's claim constructions of reach directly and unlaunched state.

[00:07:43] Speaker 03:
If we were to find in your favor on either claim construction, would we have to roll against you on anticipation?

[00:07:56] Speaker 04:
you wouldn't have to rule against me on anticipation.

[00:07:58] Speaker 03:
I don't think you would have to rule on anticipation.

[00:08:02] Speaker 04:
Yeah, I don't think you would have to rule on anticipation under those circumstances.

[00:08:07] Speaker 03:
And against you or for you.

[00:08:10] Speaker 04:
We would be indifferent under those circumstances.

[00:08:13] Speaker 04:
Although I do think the anticipation issue is an interesting one, if only because you're in what seems to me a situation I've never seen before where you have an expert who

[00:08:23] Speaker 04:
systematically and very carefully goes through each element and demonstrates how it is, in fact, anticipated in every way.

[00:08:31] Speaker 04:
And the other side has an expert to put on and chooses not to put the expert on.

[00:08:36] Speaker 02:
If there's an expert who goes through it, but the trial or fact chooses not to credit that expert, you don't need to put on a rebuttal expert.

[00:08:47] Speaker 04:
The problem with that, I mean, I understand that theory.

[00:08:50] Speaker 04:
And in general, if the evidence doesn't reach to a certain level.

[00:08:54] Speaker 04:
But here, the district court rejected the Plaintiffs 50A motion.

[00:08:58] Speaker 04:
So there's certainly enough evidence to take it to the jury.

[00:09:01] Speaker 04:
And Anne has been by clear and convincing evidence.

[00:09:03] Speaker 02:
Really any good district court judge doesn't waste a jury if you get that far.

[00:09:06] Speaker 02:
Most of them reject a 50A motion at that point and say, let's just see what the jury does, knowing they could always take it away if they think that there's not enough evidence at the end of the day.

[00:09:15] Speaker 04:
I don't disagree with that.

[00:09:17] Speaker 04:
Judge O'Malley, the problem with it is the way this court has analyzed this issue in the past is that if you put forth enough evidence to get past a 50A motion filed by the other side, that is in fact a prima facie case of invalidity.

[00:09:32] Speaker 04:
And therefore it becomes incumbent to come up with some evidence somewhere that rebuts that.

[00:09:38] Speaker 04:
And candidly, the only evidence put forth, it was no evidence put forth.

[00:09:41] Speaker 02:
Where have we said that?

[00:09:42] Speaker 02:
Because that sounds like something

[00:09:45] Speaker 02:
we wouldn't say.

[00:09:46] Speaker 05:
It also sounds like something I'm not familiar with.

[00:09:47] Speaker 05:
So what case do you have for the fact that surviving a 50A pre-trial is prima facie, like you said it was?

[00:10:09] Speaker 04:
I'll give it to you.

[00:10:10] Speaker 04:
I apologize.

[00:10:11] Speaker 04:
But what the court said is that you would be very well advised to come forward with evidence.

[00:10:14] Speaker 04:
didn't say it couldn't, that it has to be that way.

[00:10:17] Speaker 04:
But I think this case presents the question more acutely than it most, where there is absolutely no evidence.

[00:10:24] Speaker 04:
And the only indications put forward by plaintiff's counsel were arguments that the real... You suggested to Judge O'Malley that if we found for you on

[00:10:37] Speaker 05:
infringement, we might not have to reach these other issues.

[00:10:39] Speaker 05:
Don't we have to reach the validity under a cardinal chemical concept, even if we were to find non-infringement?

[00:10:45] Speaker 04:
I mean, I think it would certainly be available to you.

[00:10:47] Speaker 04:
The only reason why I don't know that you have to do that here is because you have a separate appeal coming on invalidity that's coming out of the IPR process.

[00:10:57] Speaker 04:
So I'm not sure in that unique circumstance.

[00:11:01] Speaker 02:
Which appeal?

[00:11:01] Speaker 02:
The separate appeal with respect to separate references?

[00:11:06] Speaker 04:
No, no.

[00:11:08] Speaker 04:
Both, actually.

[00:11:09] Speaker 04:
There's one appeal that involves both this reference and the other one.

[00:11:11] Speaker 05:
Well, the IPR certainly can't address 101, right?

[00:11:14] Speaker 05:
So why would we not address 101?

[00:11:17] Speaker 05:
Assume we decided it in your favor.

[00:11:19] Speaker 05:
If we were deciding it in your favor, wouldn't we actually moot the need for the other IPR?

[00:11:23] Speaker 04:
Why in the world?

[00:11:24] Speaker 05:
I don't understand.

[00:11:26] Speaker 04:
I thought Judge Wallach was asking specifically about the indolentity of anticipation and blanching, whether you have to decide that issue, even if you decide in our favor.

[00:11:35] Speaker 02:
What was it, a declaratory judgment?

[00:11:37] Speaker 04:
I'm sorry?

[00:11:38] Speaker 02:
you've got the territory judgment right it wasn't only a defensive that's a really that is correct we have to expose it as they would have to decide the one that is that that is clearly a problem and i don't fully understand this push whole distinction that you're drawing in the briefs and i also don't see it anywhere in the record below i don't see having presented that to the judge or the jury that that if you look at that uh... dr ryan's testimony we specifically talks about is

[00:12:07] Speaker 04:
The reason why you want the applications open is because they are supplying you with the information.

[00:12:13] Speaker 04:
That's how it gets pulled in.

[00:12:15] Speaker 04:
And just any reading of this, which requires it to be launched, and then the notification shows up, tells you that that's where the pull comes from.

[00:12:23] Speaker 04:
I mean, our basic pitch here is that what we're trying to do is exactly the opposite.

[00:12:29] Speaker 04:
You didn't make that argument to the judge of claim construction.

[00:12:32] Speaker 04:
Not as a matter of claim construction, because at this point, we're talking about

[00:12:37] Speaker 04:
whether or not there's infringement under the proper climb construction.

[00:12:40] Speaker 02:
But you're also saying that that relates to the question of what running means or unlaunched means, right?

[00:12:46] Speaker 04:
Well, it shows you why what we operate could under no circumstances be viewed as dealing with an unlaunched state.

[00:12:54] Speaker 04:
You still have the fundamental problem that the district judge's construction of unlaunched state simply says it has to be displayed.

[00:13:01] Speaker 04:
And our argument there is that you cannot read the claims, which distinguish between displayed and unlaunched.

[00:13:07] Speaker 04:
You cannot read the prosecution history, which makes those distinctions.

[00:13:11] Speaker 04:
Now again, Judge Wallach asked the question, do I think, would it be appropriate under those circumstances to remand to allow the district court to revisit this particular issue in terms of whether there's been infringement?

[00:13:22] Speaker 04:
I don't have any problem doing that because I think I can, not only think, I know that I can show to the district judge

[00:13:28] Speaker 04:
the poll push distinction as the reason why there has been absolutely no infringement under the circumstances.

[00:13:34] Speaker 02:
But let me ask you a question.

[00:13:34] Speaker 02:
You didn't even make that argument in JMO.

[00:13:37] Speaker 02:
I mean, this is the first time it shows up is in the appellate briefs, right?

[00:13:43] Speaker 04:
And we did that in response to the question of whether or not something should be, whether it was appropriate to remand or not.

[00:13:49] Speaker 04:
And we were basically arguing, we didn't think it was appropriate to remand because under the undisputed facts of the case, this is how it comes out.

[00:13:55] Speaker 04:
But again, Judge O'Malley, I don't,

[00:13:57] Speaker 04:
I don't, if you conclude that the district judge's construction is wrong, you can stop there and say, and send it back.

[00:14:04] Speaker 02:
But part of my problem is it's like, there's one case that was presented below and you're trying to present a totally different case up here on a whole host of issues.

[00:14:15] Speaker 02:
And that's, that's what I'm having a hard time with.

[00:14:17] Speaker 02:
Well, we have to review, we are a court of review.

[00:14:21] Speaker 04:
Judge Amali, I understand that, but we put before the judge the one-on-one issue and set it as clear as we could.

[00:14:27] Speaker 04:
This is all about collecting and displaying information.

[00:14:30] Speaker 04:
It adds nothing.

[00:14:31] Speaker 04:
It doesn't make the computer work better.

[00:14:33] Speaker 04:
This is clearly barred by this court's decision in electric power.

[00:14:38] Speaker 04:
And as we tried to articulate it here, we talk about it as an index.

[00:14:42] Speaker 04:
You don't have to buy that in order to conclude that this is nothing but display and collect and display and doesn't advance the ball.

[00:14:48] Speaker 04:
With respect to on launched, we took the position it cannot be displayed is the same as launched because that

[00:14:56] Speaker 04:
that language is used distinctly in the claims in the prosecution history.

[00:15:00] Speaker 04:
With reach directly from, we argued all along that you cannot reach anything from the menu.

[00:15:05] Speaker 04:
I'm sorry, Your Honor.

[00:15:06] Speaker 05:
So when we hear from opposing counsel, you're almost out of your rebuttal time as well.

[00:15:10] Speaker 05:
So Mr. Wang.

[00:15:18] Speaker 01:
Thank you, Your Honor.

[00:15:18] Speaker 01:
May it please the Court.

[00:15:20] Speaker 01:
Findings of infringement, eligibility, and no invalidity should be upheld.

[00:15:25] Speaker 01:
On the issue of Section 101, the district court was correct that the claims are not directed to an abstract idea.

[00:15:31] Speaker 03:
The invention is to... You make several arguments that LG's purported construction of Unlaunch would defeat several preferred embodiments reciting the patents that require applications to be running when information on the main application menu is displayed.

[00:15:46] Speaker 03:
Did you make those arguments below and so we're in the record?

[00:15:50] Speaker 01:
Your Honor, I believe we did make it during the O2 micro hearing that Judge Gilstrap conducted after the two witnesses had testified in the beginning of the trial.

[00:16:02] Speaker 01:
The two arguments that we focus on in our briefs are that the ongoing chat embodiment in the patent would be excluded by the proposed construction of not running, as well as the Bluetooth disclosure, which is at column four beginning at line 61, that talks about

[00:16:17] Speaker 01:
the device knowing Bluetooth devices in the vicinity.

[00:16:21] Speaker 01:
Now, if you have an ongoing chat, that means that the messages application that runs the chat is necessarily running, and yet it is unlaunched.

[00:16:29] Speaker 01:
You could see that in Figure 3.

[00:16:31] Speaker 01:
Likewise, with the Bluetooth embodiment, the system must be running to know that there are Bluetooth devices in the vicinity.

[00:16:38] Speaker 01:
Now, LG, in its reply, does not address these, does not reconcile

[00:16:44] Speaker 01:
their construction with these embodiments.

[00:16:46] Speaker 01:
In fact, they make no reference to the Bluetooth embodiment.

[00:16:49] Speaker 01:
But it's clear that these two embodiments are running, and yet they are unlaunched.

[00:16:54] Speaker 01:
And therefore, it shows that unlaunched cannot mean not running as LG proposed.

[00:17:00] Speaker 02:
So that's where this push-pull thing comes in, in the reply brief, is theoretically in response.

[00:17:05] Speaker 01:
I believe that was the point that they were trying to make in the reply brief, Your Honor.

[00:17:09] Speaker 02:
But you couldn't respond to that.

[00:17:11] Speaker 02:
What is your response to that?

[00:17:13] Speaker 01:
My response to that is, first, on the Bluetooth embodiment, the push pool did not relate to that.

[00:17:19] Speaker 01:
They did not respond to the Bluetooth embodiment whatsoever.

[00:17:22] Speaker 01:
On the ongoing chat one, I think it's common sense that the message application must be running for it to know that there is an ongoing chat.

[00:17:32] Speaker 01:
It's not this hypothetical that they're positing that the application summary window somehow knows that there's an ongoing chat, even though the underlying application is not running.

[00:17:43] Speaker 01:
That, I think, is just a common sense argument, Your Honor.

[00:17:46] Speaker 01:
The figure three shows that there is an ongoing chat.

[00:17:49] Speaker 01:
And yet we know that in figure three, that message's application is in an on-launch state.

[00:17:54] Speaker 01:
It's also inconsistent to construe the term on-launched as not running because it's inconsistent with the actual claim language, which focuses on what is displayed and what is not displayed.

[00:18:07] Speaker 01:
When you look at the claim language, it is display a main menu, display an application summary window,

[00:18:12] Speaker 01:
display a limited list of functions or data, display those functions or data if they are selected, and display the summary window when the application is in an unlaunched state.

[00:18:23] Speaker 01:
All of that is drawing a contrast between what is displayed and what is not displayed.

[00:18:27] Speaker 01:
The specification confirms that distinction.

[00:18:30] Speaker 01:
And importantly, the problem that the patentees sought to avoid, they sought to avoid a situation where a user has to open and look at the application and search within it and navigate within it

[00:18:41] Speaker 01:
in order to find what they wanted.

[00:18:44] Speaker 01:
So that is, they're trying to get away from a situation where the application is displayed.

[00:18:49] Speaker 03:
Is there a difference between home screen and main menu?

[00:18:53] Speaker 01:
There is no difference, Your Honor.

[00:18:55] Speaker 01:
In fact, there's testimony from LG's own expert that the status bar appears in the home screen.

[00:19:03] Speaker 01:
And I can give you the sites to that, Your Honor.

[00:19:04] Speaker 03:
You don't have to.

[00:19:06] Speaker 03:
I remember it.

[00:19:07] Speaker 01:
So LG's own expert testified that the status bar is part of the home screen.

[00:19:13] Speaker 01:
He also testified... It's part of.

[00:19:15] Speaker 03:
A radiator is part of a car, but it's not a car.

[00:19:23] Speaker 03:
And there's a difference between the two of them.

[00:19:25] Speaker 01:
Your Honor, he did testify that the main menu includes the status bar.

[00:19:29] Speaker 01:
He testified that the home screen includes the status bar.

[00:19:32] Speaker 01:
I'll give you that.

[00:19:33] Speaker 01:
He also testified

[00:19:34] Speaker 01:
that the home screen is the main menu.

[00:19:37] Speaker 01:
And he testified that if the status bar is in fact part of the home menu, that his opinion that there is no infringement would change.

[00:19:46] Speaker 01:
That was confirmed by LG's own manual that was presented to the jury.

[00:19:50] Speaker 01:
That was trial exhibit 213.

[00:19:52] Speaker 01:
And it's that manual that shows the home screen.

[00:19:55] Speaker 01:
And as part of the home screen, it identifies the status bar.

[00:19:59] Speaker 01:
Also, it was confirmed by LG's own statements at trial during the opening statement.

[00:20:05] Speaker 01:
In its opening statement, they told the jury the exact language was home screen.

[00:20:11] Speaker 01:
That's a euphemism.

[00:20:12] Speaker 01:
That's the same thing as a main menu.

[00:20:15] Speaker 01:
That's why that evidence in the record shows that the Reach Directly limitation was met and that there was substantial evidence for the jury to find it.

[00:20:23] Speaker 03:
Can an application be running and not displayed?

[00:20:29] Speaker 03:
I think

[00:20:29] Speaker 01:
It certainly can, Your Honor, and that is Figure 3, for example.

[00:20:33] Speaker 01:
Can it be displayed but not running?

[00:20:36] Speaker 01:
If it's displayed, it must be running, Your Honor.

[00:20:38] Speaker 01:
That would be my conclusion on that.

[00:20:41] Speaker 02:
With respect to Blanchard, you didn't call an expert.

[00:20:46] Speaker 02:
Why is that?

[00:20:48] Speaker 01:
Your Honor, we were not trial counsel, so I don't know the exact decision behind that, but it's clear from the record that they did not need to call their rebuttal expert.

[00:20:58] Speaker 01:
There is evidence in the record, and that evidence is in the form of the cross-examination testimony from Dr. Ryan.

[00:21:06] Speaker 01:
At Appendix 10741, he seriously undermined the argument that Blanchard discloses a limited list.

[00:21:13] Speaker 01:
He said that the menu that you are seeing, the parent menu, includes all the choices.

[00:21:18] Speaker 01:
That is not a limited list.

[00:21:20] Speaker 01:
At Appendix 10680-81, his testimony seriously undermined

[00:21:26] Speaker 01:
the idea that Blanchard discloses an unlaunched application, or that it discloses an application window summary.

[00:21:32] Speaker 01:
And of course, the jury had the Blanchard reference itself, which was discussed.

[00:21:36] Speaker 01:
They could compare it to the patent, which of course was in the record as well.

[00:21:39] Speaker 01:
And when you look at the Blanchard reference, I'll just give you a couple of sites there.

[00:21:43] Speaker 01:
If you look at column five, line 40, and column four, line 44, it's abundantly clear that the Blanchard reference was a weak reference, and there was no need

[00:21:53] Speaker 01:
For the patentee to put on, it's rebuttal expert on that.

[00:21:58] Speaker 01:
There's a lot of discussion in the briefs about who bore the burden of persuasion or the burden of production.

[00:22:04] Speaker 01:
Really, Your Honor, that's all static.

[00:22:06] Speaker 01:
You are sitting as a court in review.

[00:22:08] Speaker 01:
You have an entire trial record.

[00:22:10] Speaker 01:
You can see in that entire trial record that there is substantial evidence to support the jury's verdict that Blanchard did not anticipate.

[00:22:17] Speaker 03:
Well, I agree on one point, and that is that

[00:22:22] Speaker 03:
Burden shifting is often confused with a simple translation of risk of not persuading the court from point to point.

[00:22:36] Speaker 03:
Sometimes one party bears that risk and sometimes the other one does, but that's not necessarily the same as burden shifting.

[00:22:42] Speaker 02:
What's your response to the suggestion that we should somehow just stand down and wait for all these IPRs to go through?

[00:22:49] Speaker 01:
I think that would be hugely inefficient, Your Honor.

[00:22:52] Speaker 01:
Those IPRs are before the court now.

[00:22:55] Speaker 01:
No briefing has been set.

[00:22:56] Speaker 01:
I think that there has only been one opening brief filed.

[00:22:59] Speaker 01:
I mean, the time for that to be resolved is potentially another year away.

[00:23:03] Speaker 01:
These issues are teed up before the court.

[00:23:05] Speaker 01:
The trial happened long ago.

[00:23:06] Speaker 01:
And the issues are very clear.

[00:23:09] Speaker 01:
Unlaunched was correctly construed by the court to mean not displayed.

[00:23:13] Speaker 01:
That is consistent with everything you see in the patent.

[00:23:15] Speaker 01:
It's consistent with the problem that they sought to avoid.

[00:23:20] Speaker 03:
If you look at... So if we reverse as to one of the constructions and send it back, how long is it going to take?

[00:23:30] Speaker 01:
Your Honor, there's only one issue where you are being asked to change the construction, and that's with respect to the unlaunched state.

[00:23:39] Speaker 01:
Of course, you could vacate the jury's verdict and remand for a new trial.

[00:23:43] Speaker 01:
How long that would take, I would assume at least a year.

[00:23:48] Speaker 01:
However,

[00:23:49] Speaker 01:
You don't have to do that.

[00:23:51] Speaker 01:
There is case law supporting the fact that you can uphold the jury's verdict, notwithstanding errors in the construction, if the result would not have been different under the evidence presented.

[00:24:02] Speaker 01:
And that is the case here.

[00:24:04] Speaker 01:
They say that it's very clear that their system, that their applications are running.

[00:24:09] Speaker 01:
That's not so.

[00:24:10] Speaker 01:
You could see the deposition testimony that was played at trial.

[00:24:13] Speaker 01:
It came from a Google engineer.

[00:24:15] Speaker 01:
His name was Mr. Sandler.

[00:24:17] Speaker 01:
at appendix 10575.

[00:24:19] Speaker 01:
The application on Android

[00:24:21] Speaker 01:
need not have a process running or an activity visible for a notification to be visible by the user from that same application.

[00:24:29] Speaker 03:
Did you give us a video demonstration of a G4 phone where someone did?

[00:24:35] Speaker 01:
It is in the record, Your Honor, and they did play that to the jury.

[00:24:38] Speaker 01:
Our expert, Dr. Zager, ran through several live demonstrations and video demonstrations to show all of the limitations were met by the accused device.

[00:24:46] Speaker 03:
Because there's a blank page at 14-452.

[00:24:51] Speaker 03:
that references the video demonstration.

[00:24:53] Speaker 03:
And unfortunately, I couldn't find a CD or something along those lines.

[00:24:57] Speaker 01:
Your Honor, I will double check that after this hearing.

[00:25:00] Speaker 01:
And if we did not submit the CD, I will certainly have it submitted as promptly as possible.

[00:25:05] Speaker 01:
So the record is that there is testimony from the engineer that, in fact, their systems would infringe even under the construction.

[00:25:15] Speaker 01:
The PENIX 105 side and 5 side is an example of that.

[00:25:18] Speaker 01:
There's another one in appendix 105.79 where he testified to the same effect, that in fact their process is not running and you will get a notification.

[00:25:26] Speaker 01:
Those notifications are what we accused as the application summary window.

[00:25:30] Speaker 01:
And again, at 105.80, you'll see other testimony that would support a finding of infringement of the unlaunched limitation, even under LG's proposed construction.

[00:25:41] Speaker 01:
So I don't think it makes sense to wait here.

[00:25:43] Speaker 01:
The record is very clear.

[00:25:45] Speaker 01:
We had a full trial.

[00:25:46] Speaker 01:
Unlaunched was correctly construed.

[00:25:48] Speaker 01:
There was no clear and unmistakable disclaimer there.

[00:25:53] Speaker 01:
And to the extent you look at that issue and take a look at the Richards reference, Your Honor, the Richards reference in that related to that prosecution history statement, when they were talking about the Richards application running, they were referring to an application that is displayed.

[00:26:12] Speaker 01:
And you could see that at appendix 14462 at column three, line 23,

[00:26:17] Speaker 01:
where the Richard's reference shows that the applications, quote, applications app A and app B are open on the desktop.

[00:26:25] Speaker 01:
Appendix 1461 at column one, line 14, it's not unusual for a user to have more than one application, document or file open on a desktop at any time.

[00:26:36] Speaker 01:
Appendix 14462 at column three, line 60, where it refers to a method of switching focus between a plurality of open windows and a plurality of open applications

[00:26:48] Speaker 01:
And in appendix 14461, column two, line 66, although not shown, it is to be understood that there may be more than one window open, but not in focus.

[00:26:59] Speaker 01:
There is nothing in Richards that says that the top window is the only one displayed.

[00:27:04] Speaker 01:
In fact, those references that I just quoted to you, they talk about what's in focus.

[00:27:08] Speaker 01:
So there are multiple things displayed, albeit one is in focus.

[00:27:13] Speaker 01:
And that understanding of Richards is consistent

[00:27:17] Speaker 01:
with the patentee's characterization of the benefits of the invention.

[00:27:21] Speaker 01:
The relevance of Unlaunched is that the window is not displayed to the user.

[00:27:27] Speaker 01:
Were it already displayed, the problem that they sought to avoid would have already occurred.

[00:27:32] Speaker 01:
You would already see the application.

[00:27:35] Speaker 01:
They were trying to avoid that, having to navigate that and to search within it.

[00:27:40] Speaker 01:
And so construing Unlaunched to mean not running

[00:27:43] Speaker 01:
overlooks that benefit and the problem that the patentees were trying to solve.

[00:27:48] Speaker 05:
Where in the patent is the information about Bluetooth, and where do you think it makes clearest that in order for the Bluetooth to be seeking and discovering devices, it has to be running even though it's in an unlaunched state?

[00:28:04] Speaker 01:
Your Honor, that shows up in column four, beginning at line 61 of the 476 patent.

[00:28:11] Speaker 01:
It refers to, open quote,

[00:28:13] Speaker 01:
Bluetooth application, which has associated with it a summary window, which lists the other Bluetooth devices in the vicinity.

[00:28:24] Speaker 01:
And in that context of the specification, what it's talking about is, how does the device and how does the application summary window keep current so that it knows what's going on?

[00:28:35] Speaker 01:
And one of the examples it gives is this Bluetooth embodiment.

[00:28:40] Speaker 01:
How does the device know that there are Bluetooth devices in the vicinity?

[00:28:44] Speaker 01:
We know from our own devices that that Bluetooth application has to be running.

[00:28:49] Speaker 01:
It's on, and that's why it's searching to see if there are Bluetooth devices, and that's how it knows when something is in its vicinity.

[00:28:55] Speaker 03:
In the prosecution history, CORE distinguished its claims from the prior art, because unlike the prior art,

[00:29:09] Speaker 03:
its claims did not, quote, only ever display the summary application menu, quote, within a running instance of the program, i.e., when the program is in a launch state.

[00:29:23] Speaker 03:
It seems to me that what that's saying is in the prosecution history, CORE used the term launch in the way it argues against here on appeal.

[00:29:33] Speaker 03:
That is to mean open, started, or running, not merely displayed.

[00:29:37] Speaker 01:
Your Honor, those

[00:29:39] Speaker 01:
My comments earlier about the Richards reference were addressing that point.

[00:29:44] Speaker 01:
So when the patentee referred to the application in Richards as running, he was referring to an application that is displayed.

[00:29:53] Speaker 01:
And that is clear in the references in the appendix sites that I gave you at 14462, et cetera.

[00:30:01] Speaker 01:
And it's how they would read

[00:30:04] Speaker 01:
That statement in the prosecution is inconsistent with the benefits of the invention because the whole point was to avoid having to see the application.

[00:30:13] Speaker 01:
You didn't have to deal with that.

[00:30:14] Speaker 01:
You could get to what you wanted directly from the application summary window.

[00:30:18] Speaker 03:
Moreover, when you look at the record... Those preferred embodiment arguments that you make in relation to that, where were they below?

[00:30:28] Speaker 00:
I believe, Your Honor, that they came up during the O2 micro hearing.

[00:30:33] Speaker 00:
The judge held that.

[00:30:34] Speaker 01:
Now, I can tell you specifically, Your Honor.

[00:30:41] Speaker 01:
Give me one second on that.

[00:30:43] Speaker 00:
Sure.

[00:31:21] Speaker 01:
Your Honor, the 02 micro discussion is at Appendix 102.78.

[00:31:27] Speaker 01:
And so I'm not certain if it was actually included during that discussion.

[00:31:35] Speaker 01:
But this issue was also addressed in the Rule 50 motions.

[00:31:40] Speaker 01:
And so I'm fairly certain, Your Honor, I just don't want to say anything that's incorrect.

[00:31:44] Speaker 01:
But it may be there.

[00:31:46] Speaker 01:
I already did, Your Honor.

[00:31:49] Speaker 01:
I'm sorry.

[00:31:50] Speaker 01:
I didn't mean to, Your Honor.

[00:31:51] Speaker 03:
Oh, no.

[00:31:52] Speaker 03:
But you told us it was in the 02 micro discussion.

[00:31:55] Speaker 01:
So if I could take that back, Your Honor, mea culpa.

[00:31:58] Speaker 01:
And so I would look to the 02 micro section just to make sure whether or not it's in there.

[00:32:04] Speaker 01:
It may be in the Rule 58 motions where the claim construction issue was also brought up, Your Honor.

[00:32:10] Speaker 01:
I apologize for not having that at my fingertips.

[00:32:16] Speaker 01:
What I wanted to continue about the Richards reference though, Your Honor, is that it came up in the context of a 103 obviousness rejection by the examiner, where the primary reference was admittedly lacking in the main menu, and the Richards reference was used to make up for that deficiency.

[00:32:33] Speaker 01:
That was the context that Richards shows up in the prosecution history.

[00:32:37] Speaker 01:
So the further you read into the statements about Richards,

[00:32:41] Speaker 01:
Outside of this main menu limitation, which is different than the application summary window and unlaunched state that we're talking about, I think the more tenuous this claim construction argument becomes, Your Honor.

[00:32:53] Speaker 01:
So the context of the claims are what's displayed and what is not displayed, and that's very clear.

[00:33:00] Speaker 01:
And that's why the construction was correct.

[00:33:02] Speaker 01:
On the section 101, your issue, Your Honor, the district court was correct.

[00:33:06] Speaker 05:
We are way beyond your time, so we're not going to move into another new issue at this point.

[00:33:10] Speaker 05:
Let's give Mr. Phillips a few minutes of rebuttal time.

[00:33:13] Speaker 05:
That's pretty close to even it out.

[00:33:15] Speaker 00:
OK, thank you.

[00:33:19] Speaker 02:
Mr. Phillips, I don't mean to use up all your rebuttal time, but I have a procedural question.

[00:33:23] Speaker 02:
Yes, Your Honor.

[00:33:24] Speaker 02:
I understand what we said in Bosch, and you get to appeal this despite the fact that I think it's insane, and continue to.

[00:33:31] Speaker 02:
It is what our law is.

[00:33:33] Speaker 02:
But in this case, we don't even have a vehicle for this judgment.

[00:33:37] Speaker 02:
There's no 54B.

[00:33:39] Speaker 02:
There's no 1292B certification.

[00:33:42] Speaker 02:
It's just here on appeal.

[00:33:45] Speaker 02:
Do you find that to be a problem?

[00:33:47] Speaker 04:
Well, yes.

[00:33:50] Speaker 04:
When we were debating filing the Notice of Appeal, I looked at Bosch, and I read it to say that if you have a final determination on liability, then that's an appealable order.

[00:34:00] Speaker 04:
which I think goes in some ways back to the question of what's the most efficient way to handle this litigation, which is even if you were to affirm here, you still send it back for a trial on damages.

[00:34:10] Speaker 04:
I don't know why under those circumstances it's not equally efficient, frankly, to wait for the IPR if you wanted to do that.

[00:34:16] Speaker 02:
That said... But the damages, discoveries all done and everything, and there's been a lot of that fleshed out.

[00:34:21] Speaker 02:
I mean, a damages trial would be

[00:34:23] Speaker 02:
relatively easy in this case.

[00:34:25] Speaker 04:
Relatively easy, unless the district judge is not inclined to want to hold it until after everything is finished on appeal, and that's not an unrealistic outcome in this particular context.

[00:34:35] Speaker 03:
Remember Pogo?

[00:34:37] Speaker 04:
I do remember Pogo.

[00:34:38] Speaker 03:
We have met the enemy and he is us.

[00:34:42] Speaker 04:
Thank you, Your Honor.

[00:34:44] Speaker 04:
Judge Moore, you asked me about the citations to the question of under what circumstances you can put forward an expert.

[00:34:50] Speaker 04:
The other side doesn't put forward anything.

[00:34:52] Speaker 04:
Yee versus City of Escondido is the case from the Supreme Court that I had in mind.

[00:34:56] Speaker 04:
CFC fabrication was actually a Fifth Circuit decision because it comes out, because this is one of those procedural issues that you look to the regional circuit for is the one that takes the position that you have some obligation to do something in the face of this rather than simply making arguments

[00:35:11] Speaker 04:
by the council, and that's 917F.

[00:35:14] Speaker 05:
I'm not sure that this would even be regional circuit law, Mr. Phillips.

[00:35:18] Speaker 05:
This is a question of what would need to be proffered in exchange in a patent validity context with a clear and convincing evidence burden which exists almost nowhere in regional circuit law.

[00:35:33] Speaker 05:
What would satisfy that such that it would cause the other side to have to put on an expert?

[00:35:40] Speaker 05:
I don't think that's regional circuit law.

[00:35:42] Speaker 05:
I see no analog in the regional circuits for that particular scenario.

[00:35:45] Speaker 05:
I think it's probably federal circuit law.

[00:35:48] Speaker 04:
Well, the other side didn't challenge it.

[00:35:50] Speaker 04:
I mean, we said that we thought that this was covered by the circuit law.

[00:35:53] Speaker 04:
The other side didn't contest that particular argument.

[00:35:56] Speaker 04:
I don't guess that's binding on you, but that was the way the case, the issue was teed up.

[00:36:01] Speaker 04:
Look, I understand your position.

[00:36:04] Speaker 04:
I still think it's an unusual situation where one side puts on a completely

[00:36:09] Speaker 04:
un-rebutted expert testimony on each of the elements and the other side doesn't bring in an expert because he's already testified.

[00:36:16] Speaker 02:
It's not un-rebutted if he actually undermines new various theories on cross-examination.

[00:36:21] Speaker 02:
So what's your response to your friend on the other side when he says that Dr. Ryan actually undermined your limited list limitation theory?

[00:36:30] Speaker 04:
Well, that wasn't the argument they put forward

[00:36:33] Speaker 04:
in the trial court at all.

[00:36:34] Speaker 04:
A limited list came up in the IPR proceeding.

[00:36:36] Speaker 04:
It's the first, you know, that one.

[00:36:38] Speaker 02:
But if in his testimony in trial, it is testimony that the jury heard.

[00:36:43] Speaker 04:
Right, but his testimony was, I mean, candidly, I find it hard to understand how you could argue seriously that there isn't a limited list, because every list is almost inherently limited, because you can only have certain items.

[00:36:55] Speaker 04:
But we know from Blanchard that you have the first entry

[00:36:59] Speaker 04:
The A has got three items in it, and the next one's got two others that weren't listed the first time.

[00:37:03] Speaker 04:
So obviously, that first list is a limited list.

[00:37:06] Speaker 04:
That's what he testified to.

[00:37:08] Speaker 04:
I have a hard time understanding how anybody, frankly, as a trier of fact, could reject that conclusion as to what's a limited list under those circumstances.

[00:37:17] Speaker 04:
I'll try to be as quick as possible.

[00:37:18] Speaker 04:
On the unlaunched stage versus displayed, he focuses largely on the preferred embodiment, which didn't come up in the trial court.

[00:37:26] Speaker 04:
At the end of the day, the question here is, what do the claims say?

[00:37:30] Speaker 04:
What are the specifications?

[00:37:31] Speaker 04:
What's the prosecution history?

[00:37:32] Speaker 04:
All of that argues against displaying being equal to launch.

[00:37:36] Speaker 05:
Why?

[00:37:37] Speaker 05:
If figure three includes an ongoing chat, if Bluetooth requires seeking devices, all of those would be running at least some part of those applications in the background while they are played.

[00:37:52] Speaker 05:
Or have run.

[00:37:54] Speaker 04:
It could just as easily be have run.

[00:37:56] Speaker 04:
in the past and collected information and then closed down and it stays in the system.

[00:38:02] Speaker 04:
That's all.

[00:38:03] Speaker 04:
It could go either way and there's no testimony on it.

[00:38:07] Speaker 05:
I don't understand it could go either way.

[00:38:08] Speaker 05:
What do you mean?

[00:38:09] Speaker 04:
You could have had a chat and then it gets into the system and you close down the chat and it stays in the system as a chat ongoing, but it's not open.

[00:38:19] Speaker 04:
But the whole point of their exercise was to put this in an unlaunched state because in a launch state,

[00:38:26] Speaker 04:
In a launch state, the prior art speaks directly to this.

[00:38:31] Speaker 04:
So get around that.

[00:38:32] Speaker 04:
They had to go to an unlaunched state.

[00:38:37] Speaker 05:
Does the prior art have things that are launched and not displayed?

[00:38:41] Speaker 04:
Yes, of course.

[00:38:45] Speaker 05:
Well, I don't know.

[00:38:48] Speaker 05:
I'm just having trouble getting around the Bluetooth example and the ongoing chat example.

[00:38:54] Speaker 05:
in Bluetooth to seek a Bluetooth device, you have to be active and running in the background.

[00:39:00] Speaker 04:
I don't understand.

[00:39:01] Speaker 04:
Judge Moore, I guess what I would say to you is, one, that wasn't the focus of any of the analysis.

[00:39:07] Speaker 04:
It's in the patent.

[00:39:08] Speaker 05:
It's in the spec.

[00:39:09] Speaker 04:
No, I get that.

[00:39:10] Speaker 04:
But all I'm saying is that if you're looking at the claims, which, I mean, the judge's opinion says it's launched equals displayed, period.

[00:39:21] Speaker 04:
And if you read the claims, you read the spec, and you read the prosecution history, it is absolutely clear that that's wrong.

[00:39:30] Speaker 04:
And if you don't go any further than that, that's fine.

[00:39:32] Speaker 04:
Then you can get into a fight about what all of this means otherwise.

[00:39:35] Speaker 04:
But it's clear to me that launch cannot just mean displayed.

[00:39:38] Speaker 04:
It's got to mean something other than that in order to be applicable here.

[00:39:43] Speaker 04:
And then from the main menu, the only thing I would say is that the inventor recognized the status bar is different.

[00:39:50] Speaker 03:
Your friend on the other side effectively conceded that you can have something that's launched but not displayed.

[00:40:00] Speaker 04:
Right.

[00:40:01] Speaker 04:
Right.

[00:40:01] Speaker 04:
Which is undeniably true.

[00:40:05] Speaker 04:
But not everything that's, well, everything I think, everything that's displayed is launched, but not everything.

[00:40:09] Speaker 04:
It doesn't go both ways.

[00:40:10] Speaker 04:
I think it's the bottom line.

[00:40:12] Speaker 04:
And then finally, I do still think 101, the problem with 101 is not the index.

[00:40:16] Speaker 05:
Just like I cut him off, we're not moving into a new issue.

[00:40:18] Speaker 04:
Not a problem.

[00:40:19] Speaker 04:
I understand that, Your Honor.

[00:40:20] Speaker 02:
I appreciate that.

[00:40:20] Speaker 02:
Especially since he never got to get this out there.

[00:40:23] Speaker 02:
Thank you, Your Honor.

[00:40:24] Speaker 05:
All right.

[00:40:24] Speaker 05:
I thank both counsel cases taken under submission.