[00:00:13] Speaker 03:
OK, Mr. Mei, please proceed.

[00:00:37] Speaker 02:
In this appeal from the district court, Your Honors, Dragon raised several clean construction issues.

[00:00:43] Speaker 02:
It's important, however, to first understand the background of the 444 patent.

[00:00:48] Speaker 02:
The patent claims priority to an application filed 25 years ago in 1992.

[00:00:53] Speaker 02:
It disclosed a recording and playback device designed to record a broadcast program during an interruption, for example, when you have to take a phone call, while allowing a user to immediately and seamlessly resume watching the program right from the point of interruption.

[00:01:13] Speaker 02:
Indeed, claim one recites a specific recording for the interrupted broadcast program information.

[00:01:19] Speaker 02:
It does not matter whether or not a device is continuous recording device.

[00:01:25] Speaker 02:
Claim one does not cite any other broadcast program information before or after the interrupted broadcast program information.

[00:01:35] Speaker 02:
Now, the main dispute in this appeal is the district court's finding of alleged prosecution disclaimer.

[00:01:42] Speaker 02:
of continuous recording devices.

[00:01:46] Speaker 02:
Notably, defendants now have backed away from the district court's alleged disclaimer of all continuous recording devices and argue instead that only certain or certain types of continuous recording devices were disclaimed.

[00:02:05] Speaker 02:
Your Honor, you all know the standard for prosecution disclaimer is extremely high.

[00:02:09] Speaker 02:
It requires a clear and unmistakable

[00:02:12] Speaker 02:
disavowal.

[00:02:13] Speaker 02:
This is not the case here.

[00:02:15] Speaker 02:
During prosecution, the examiner rejected claims over the prior reference SATA multiple times.

[00:02:24] Speaker 02:
Each time, the applicant argued that SATA is a continuous recording device and expressly declined to disclose the implementation of SATA's playback function, and that would require some addressing command data.

[00:02:42] Speaker 02:
If applicant intended to disclaim any and all continuous recording devices, applicants could have said that without discussing the specific implementation of the playback or recording function.

[00:02:56] Speaker 02:
And if the alleged disclaimer was so clear and unmistakable, the examiner would have allowed it over SATA without issuing more rejections based on SATA.

[00:03:08] Speaker 02:
In the end,

[00:03:09] Speaker 02:
The alleged disclaimer has nothing to do with the allowance of the 444 patent.

[00:03:14] Speaker 02:
In fact, the sole limitation we just discussed, that's a very narrow limitation, was the very reason.

[00:03:20] Speaker 03:
Do you believe that our prosecution disclaimer law requires that you were successful in making that argument?

[00:03:31] Speaker 03:
You are quoting to me, well, the examiner didn't immediately allow the patent after this disclaimer.

[00:03:36] Speaker 03:
Do you believe it's necessary, kind of like in the field of collateral estoppel or issue preclusion, do you believe it's necessary that your argument resulted in success before the PTO in order for disclaimer to be found?

[00:03:49] Speaker 02:
No, no, Your Honor, not at all.

[00:03:51] Speaker 02:
So in fact, defendants argued Dragon made that argument.

[00:03:55] Speaker 02:
That's not Dragon's position.

[00:03:57] Speaker 02:
Dragon merely recited the well-established case law that prosecution as a whole, in addition to specific set of portions, should be considered have relevancy

[00:04:06] Speaker 02:
in the analysis of disclaimer.

[00:04:09] Speaker 02:
So here, the examiner's actions, subsequent actions, and the reason for allowance are relevant for us to understand the entire picture of our alleged prosecution disclaimer.

[00:04:23] Speaker 02:
It's Drayton's position that individual portions of prosecution history that were discussed at length in party's briefs and the prosecution history as a whole do not support a finding

[00:04:35] Speaker 02:
of prosecution disclaimer here.

[00:04:38] Speaker 02:
And moreover, even if the district court was reasonable in interpreting that there might be disclaimer here.

[00:04:48] Speaker 02:
As we all know, the case law is clear.

[00:04:50] Speaker 02:
When the alleged disavowal is ambiguous, even amenable to multiple reasonable interpretations, there cannot be any disclaimer.

[00:05:00] Speaker 02:
And it's Dragon's position that Dragon's interpretation

[00:05:04] Speaker 02:
of the prosecution history, the specific cited portions, is also reasonable, or even more reasonable than the district court's interpretation.

[00:05:17] Speaker 02:
Because it is always dragon's position that applicant distinguished SATA on a single, not multiple basis.

[00:05:26] Speaker 02:
Your Honor, you may ask, why did applicant mention SATA being a continuous recording device at all?

[00:05:32] Speaker 02:
because it provides a context for the actual distinction.

[00:05:36] Speaker 02:
Because SATA being a continuous recording device makes it more critical for SATA to disclose the exact implementation of its playback function.

[00:05:48] Speaker 02:
Again, the priority of this pattern goes back to 1992.

[00:05:54] Speaker 02:
If SATA is a continuous recording device,

[00:05:58] Speaker 02:
It appears that SATA does not have a simple on and off recording implementation.

[00:06:03] Speaker 02:
Therefore, it would require some address increment data to identify the portion that was being played back.

[00:06:13] Speaker 02:
But there's no such implementation disclosed in SATA.

[00:06:18] Speaker 02:
That's why the applicant argued that SATA should not render the claims unpatentable.

[00:06:24] Speaker 02:
Therefore, there's no disclaimer.

[00:06:26] Speaker 02:
Consequently, the district court's claim constructions for the terms, the broadcast program information, to begin a recording by initiating storage of the broadcast program information set in memory and record key are simply incorrect.

[00:06:44] Speaker 04:
Let's just say for a minute, if I were to agree with you hypothetically, that there was no disclaimer.

[00:06:49] Speaker 04:
Don't you still have a problem here because of the very claim language itself?

[00:06:54] Speaker 04:
which says said record key, it says that recording occurs when said record key is first actuated to begin a recording.

[00:07:05] Speaker 04:
So that would seem to say that the recording occurs when you first hit the record key, not that there's continuous recording.

[00:07:17] Speaker 02:
You want to understand the confusion.

[00:07:18] Speaker 02:
I think this confusion actually

[00:07:21] Speaker 02:
was also appeared in the district court's decision.

[00:07:27] Speaker 02:
As I mentioned earlier, the 444 pattern does not care about other recorded program information, only the recording, a specific recording that was interrupted, the interrupted broadcast program information.

[00:07:41] Speaker 02:
If you read claim one, the language here makes very clear

[00:07:45] Speaker 02:
to begin a recording, right?

[00:07:47] Speaker 02:
You have to use a set record keys first actuated to begin a recording.

[00:07:52] Speaker 02:
So if we out-focus, which is the 444 patterns you mentioned anyway, is on that interrupted portion only, then it does not matter if there's a continuous recording device or not, because there might be multiple recording going on at the same time.

[00:08:06] Speaker 02:
We don't care about something, a device such like SATA that starts from the beginning, right, without record key being

[00:08:14] Speaker 04:
Do you need your interpretation of broadcast program information in order to maintain that argument that you're making right now?

[00:08:23] Speaker 04:
Do you think you do?

[00:08:24] Speaker 04:
Do you think you need us to agree with your interpretation?

[00:08:29] Speaker 02:
Not necessarily.

[00:08:31] Speaker 02:
We need the court to agree with us.

[00:08:33] Speaker 02:
There's no disclaimer.

[00:08:35] Speaker 02:
Then I think the language itself is very clear.

[00:08:39] Speaker 02:
That's beginning a recording.

[00:08:41] Speaker 02:
So as long as a queued device has a record key to begin that particular recording of the interrupted portion, even if there was other recording going on simultaneously, that does not matter here.

[00:08:55] Speaker 02:
So Dragon would request the court to find there's no disclaimer.

[00:09:00] Speaker 02:
Then the only plane construction issue remaining for the broadcast program information is the term transmitted to all users.

[00:09:09] Speaker 02:
And that, I think, impacts AT&T only.

[00:09:12] Speaker 02:
So in that situation, it's our position that there are two competing dictionary definitions.

[00:09:18] Speaker 02:
There's no intrinsic evidence to support all user.

[00:09:23] Speaker 02:
In fact, that introduces additional ambiguities, that all users having a recording device or all users in a particular location.

[00:09:32] Speaker 02:
So if the court also agree with us that all users should not be there, then we

[00:09:40] Speaker 02:
I mean, we really don't care one way or another how the court constitutes this term.

[00:09:46] Speaker 02:
In fact, this term could be just claiming an ordinary meaning.

[00:09:48] Speaker 03:
Now, can you please tell me why the sentence at page 144 isn't a disclaimer?

[00:09:59] Speaker 03:
There are two primary places where I understand you to be distinguishing SATA

[00:10:05] Speaker 03:
Seita or Seita.

[00:10:06] Speaker 02:
Yes.

[00:10:07] Speaker 03:
1444 and 1393.

[00:10:10] Speaker 03:
So why don't you tell me why I should disregard what appears to me to be a very reasonable and correct reading of this sentence.

[00:10:19] Speaker 03:
The sentence, accordingly, the instant invention.

[00:10:22] Speaker 03:
Are you with me?

[00:10:23] Speaker 03:
Yeah, correct.

[00:10:24] Speaker 02:
I'm with you, Your Honor.

[00:10:25] Speaker 03:
Accordingly, the instant invention as claimed is further distinguished from the structure of Seita.

[00:10:30] Speaker 03:
So you're saying it's distinguished.

[00:10:32] Speaker 03:
Now I'm going to give you the reason.

[00:10:33] Speaker 03:
Where in

[00:10:35] Speaker 03:
recording, as explained at column six, line 44 to 49, is continuous and never initiated or stopped.

[00:10:42] Speaker 03:
And wherein, now we're getting to a second reason, initiation of playback requires some addressing command data.

[00:10:49] Speaker 03:
So why isn't, I mean, that first wherein clause, it looks to me like you've distinguished SATA from the present invention on two grounds.

[00:10:59] Speaker 03:
The first is SATA is continuous and the second is about the initiation of playback.

[00:11:04] Speaker 03:
You want me to believe that you only distinguish SATA on the basis of the initiation of playback.

[00:11:09] Speaker 03:
But this sentence seems quite clear that you distinguish SATA on two grounds.

[00:11:15] Speaker 03:
The fact that it continuously records and the second ground on initiation of playback.

[00:11:22] Speaker 03:
That is unquestionably, I think, the most natural reading of this sentence.

[00:11:26] Speaker 03:
So what am I missing?

[00:11:27] Speaker 02:
Your Honor, actually, that's also the district court and defendants reading.

[00:11:31] Speaker 02:
But that's not the only.

[00:11:33] Speaker 03:
I'm aware of that.

[00:11:33] Speaker 02:
That didn't escape me.

[00:11:35] Speaker 02:
I agree.

[00:11:37] Speaker 02:
But that's not the only reasonable interpretation.

[00:11:40] Speaker 02:
Because if you continue to read that, it talks about where initiation or playback requires some addressing command data.

[00:11:50] Speaker 03:
Yes, but that's a second distinction.

[00:11:53] Speaker 03:
Those are two separate distinctions.

[00:11:56] Speaker 03:
This is not uncommon.

[00:11:57] Speaker 03:
I'm sure you know this.

[00:11:59] Speaker 03:
you know, an examiner cites a reference against you, you come back with an arsenal of reasons why he's wrong.

[00:12:05] Speaker 03:
It's not uncommon to have more than one reason that you think the examiner's wrong.

[00:12:09] Speaker 03:
And so here it seems that you articulated two quite discrete reasons why you believe the examiner was wrong.

[00:12:15] Speaker 02:
Right.

[00:12:16] Speaker 02:
We understand your honest interpretation.

[00:12:18] Speaker 02:
I believe that is one of the reasonable interpretations.

[00:12:21] Speaker 02:
But Dragon does not take the position that there are two different grants.

[00:12:27] Speaker 02:
There's only one grant here.

[00:12:29] Speaker 02:
And especially the expressly undisclosed, the word expressly was bolded and underlined.

[00:12:36] Speaker 02:
And again, the test for prosecution disclaimer.

[00:12:39] Speaker 03:
But how can they be one and the same?

[00:12:41] Speaker 03:
The first one is about starting and stopping and continuity.

[00:12:46] Speaker 03:
The second one is about requiring command data.

[00:12:50] Speaker 03:
It doesn't even seem like the same ground.

[00:12:52] Speaker 02:
Yeah, let me explain, Your Honor, why it's this.

[00:12:55] Speaker 02:
So why, as I mentioned, why did Epic mention the first part

[00:12:59] Speaker 02:
at all, because the SATA being a continuous recording device provides a context for the actual distinction.

[00:13:06] Speaker 02:
Because if the SATA is being continuous recording, then naturally the question would be how the playback is being implemented.

[00:13:17] Speaker 02:
That's the reason, even in a continuous recording device, the playback function and its implementation is super important.

[00:13:28] Speaker 02:
That's the reason here the applicant argued that, you know, first of all, Stata is being a continuous recording device.

[00:13:35] Speaker 03:
You are well into your rebuttal time, and I don't want you to use it all up.

[00:13:38] Speaker 02:
Thank you, Your Honor.

[00:13:39] Speaker 03:
Why don't you save the rest?

[00:13:50] Speaker 00:
Morning, Your Honors.

[00:13:51] Speaker 00:
Michael Murray for five of the defendants.

[00:13:53] Speaker 00:
Just a small housekeeping matter.

[00:13:54] Speaker 00:
I'm actually going to take 10 minutes of the time.

[00:13:57] Speaker 00:
I think I'm in the record for nine, but by agreement of the parties, I'm going to take 10.

[00:14:02] Speaker 00:
So I'd like to start with the statement that Dragon's Council just made that Judge Andrews found that there was a disclaimer on all recording devices and that we're somehow backing away from that.

[00:14:14] Speaker 00:
That's not correct.

[00:14:14] Speaker 00:
If we look at what Judge Andrews actually said, he said, quote, the applicants repeatedly distinguished SATA on the basis that SATA records continuously

[00:14:24] Speaker 00:
and the claim device does not begin recording until the user actually to record key.

[00:14:30] Speaker 03:
Do you think your two best places, tell me, why don't you tell me in the prosecution history what you think the two clearest examples, because I don't, I mean this is a question of law, right, disclaimer, question of law.

[00:14:43] Speaker 03:
Yes, certainly.

[00:14:44] Speaker 03:
So you know, it's great whatever the district court said about it is lovely and can be persuasive,

[00:14:48] Speaker 03:
Why don't you actually show me why, as a matter of law, since I have to decide it de novo, the two best places or three best places where you think that disclaimer is clearest in the record?

[00:14:58] Speaker 00:
Well, it's actually hard to choose, Your Honor, because there's an abundance of good disclaimers.

[00:15:03] Speaker 03:
Nonetheless, I'm asking you to.

[00:15:05] Speaker 00:
OK.

[00:15:06] Speaker 00:
So let me point the court to 1446, 1447.

[00:15:10] Speaker 00:
There's a statement there.

[00:15:11] Speaker 00:
1446 to 47.

[00:15:13] Speaker 00:
OK.

[00:15:13] Speaker 00:
1446 to 47 in the appendix.

[00:15:17] Speaker 00:
Quote, it is not clear by any means that SATA even intends to provide any control at all over the point at which recording or playback begins.

[00:15:25] Speaker 04:
Could you, I apologize, but could you tell me where you are on page 46 or 47?

[00:15:31] Speaker 00:
I'm reading off my notes.

[00:16:06] Speaker 00:
So at the bottom of 1446, it is not clear by any means that SATA even intends to provide, and they continue on 1447, any control at all over the point at which recording or playback begins and ends.

[00:16:20] Speaker 00:
Thus construed in the light most favorable to SATA, again for the sake of argument, only the prior art device at best is continually recording and playing back.

[00:16:33] Speaker 00:
And then the last sentence in that paragraph, since the prior art makes no mention whatever of the desirability of controlling the point at which recording is to begin, it cannot be argued that it would have been obvious to add and change structure as necessary to achieve an unsuggested function.

[00:16:48] Speaker 00:
So here, applicant is arguing that it wouldn't have been obvious to add a record key to SATA because SATA is always recording.

[00:16:55] Speaker 00:
It's a continuous recording device, which is really the same way that the accused devices operate in this case.

[00:17:01] Speaker 00:
When you turn the device on,

[00:17:03] Speaker 00:
it's recording.

[00:17:04] Speaker 00:
When, in the case of the cable TV boxes, when you start the cable TV box up and start watching a show, it's automatically recording.

[00:17:11] Speaker 00:
You don't need to push a record key in order to begin recording.

[00:17:17] Speaker 00:
So that certainly is one good example of the disclaimer.

[00:17:23] Speaker 03:
Your Honor pointed to... I think part of the difficulty with what you just cited to me, for me, is

[00:17:29] Speaker 03:
These seem to be simply characterizations of what SATA or SATA, however you say it, discloses and doesn't seem like a clear statement that this is not what we do or we are distinct because, you know, that a clear and unmistakable disclaimer is usually this is what they do and we don't do it.

[00:17:51] Speaker 03:
This statement seems a little bit more

[00:17:56] Speaker 03:
difficult for me to see the clarity of this particular one.

[00:18:00] Speaker 03:
Is there somewhere in here where you want to point out that they don't just say SADA is continually recording, but that we don't continually record?

[00:18:10] Speaker 03:
Or that's contrary to this invention?

[00:18:13] Speaker 00:
Right.

[00:18:13] Speaker 00:
There are multiple times in the prosecution history where they point out that they have a record key that begins the recording process.

[00:18:20] Speaker 00:
And the claims were amended, actually, to make it clear

[00:18:24] Speaker 00:
that when you activate the cord, that when you push the record key, you begin the recording process.

[00:18:31] Speaker 00:
And so they continually pointed out that SATA continuously records, and it wouldn't have been obvious to add a record key that initiates recording.

[00:18:40] Speaker 00:
I see.

[00:18:42] Speaker 03:
What is your next best one then?

[00:18:47] Speaker 00:
Well, I could point to 1393.

[00:19:13] Speaker 00:
In about the middle of the page, SATA's device not only fails to include a record key, it cannot accommodate a record key since it is always recording.

[00:19:22] Speaker 00:
So again, pointing out that SATA is a continuous recording device and it doesn't have the record key, which was the thing that they were emphasizing repeatedly to the patent office as distinguishing their invention.

[00:19:34] Speaker 00:
They have a record key to start the recording process.

[00:19:37] Speaker 00:
SATA doesn't need a record key.

[00:19:46] Speaker 00:
Now, I'd also like to point out that much as Dragon wants to make this appeal all about disclaimer, it's really not all about disclaimer.

[00:19:53] Speaker 00:
The plain language of the claims completely supports the claim constructions issued by the district court.

[00:20:01] Speaker 00:
For example, to begin a recording by initiating storage of the broadcast program information and said memory in a term, the court construed as being to begin a recording by causing the storage of broadcast program information that otherwise

[00:20:16] Speaker 00:
would not have been stored in said memory unit.

[00:20:18] Speaker 00:
So Dragon emphasizes the A recording part of that and tries to argue using their unusual construction of the broadcast program information, arguing that the broadcast program information is a different term than broadcast program information and has a completely different meaning, which the court rejected.

[00:20:37] Speaker 00:
But they're not really accounting for this language by initiating storage of broadcast program information.

[00:20:44] Speaker 00:
When you begin the recording,

[00:20:45] Speaker 00:
the plain language of the claim, you initiate storage of the broadcast program information.

[00:20:51] Speaker 00:
That clearly means, just by its plain language, that if you don't do that, then you will not be storing the broadcast program information.

[00:20:59] Speaker 00:
What else could initiating storage mean?

[00:21:01] Speaker 00:
And Dragon has never really grappled with the plain language of the claim.

[00:21:05] Speaker 00:
The plain language of the claim means you initiate storage, you start storage by pushing the record key.

[00:21:12] Speaker 00:
And that fully supports the court's construction.

[00:21:15] Speaker 00:
and supports the stipulated entry of judgment of non-affringement because that's not how any of the accused devices work.

[00:21:23] Speaker 00:
You turn the device on and it begins recording.

[00:21:26] Speaker 00:
You don't have to push any button to initiate storage.

[00:21:31] Speaker 00:
Now, Dragon argues in the great brief at 17 that Judge Andrews relied solely on the prosecution disclaimer to support his construction of this term, and that's just not true.

[00:21:40] Speaker 00:
Judge Andrews rejected Dragon's construction

[00:21:43] Speaker 00:
because it, quote, eliminates to begin a recording and instead focuses on retrieval of information.

[00:21:49] Speaker 00:
This is in the appendix.

[00:21:51] Speaker 00:
Excuse me?

[00:21:51] Speaker 04:
You were about to give the appendix.

[00:21:53] Speaker 00:
I was, Your Honor.

[00:21:54] Speaker 00:
That's in the appendix at page 112.

[00:21:57] Speaker 00:
So the problem that Judge Andrews recognized with Dragon's construction of to begin a recording is it's all about retrieving information.

[00:22:05] Speaker 00:
It's not actually about beginning a recording, because Dragon has never, again, grappled with the plain language of the claim.

[00:22:12] Speaker 00:
So Judge Andrews did not rely solely on the disclaimer to support this term.

[00:22:17] Speaker 00:
Finally, the specification just plainly supports that construction, too.

[00:22:22] Speaker 00:
The specification says, quote, basic operation of the instant invention begins with the user watching or listening to desired programming and recorder 10 off.

[00:22:31] Speaker 00:
So that's the applicant.

[00:22:32] Speaker 00:
And this is the appendix of 125, which is column 5, lines 20 to 22 of the patent.

[00:22:38] Speaker 00:
Basic operation of the instant invention.

[00:22:40] Speaker 00:
In every embodiment in this patent,

[00:22:42] Speaker 00:
In every embodiment, the recorder is off, you push the record button, and then the recorder comes on and initiates storage of the broadcast program information.

[00:22:52] Speaker 04:
But we shouldn't read embodiments into the claim, right?

[00:22:55] Speaker 04:
I mean, I think your stronger argument is that the claim language itself requires that prosecution history supports that construction.

[00:23:02] Speaker 04:
But we shouldn't read preferred embodiments.

[00:23:06] Speaker 04:
It's the only disclosed embodiment.

[00:23:07] Speaker 04:
But what basis do we have to read that into the claim?

[00:23:10] Speaker 00:
I think the stronger argument is the plain language of the claim, the disclaimer, of course, because they explain this language to the patent office over and over and over again and said it's not about continuous recording.

[00:23:20] Speaker 00:
It's about you need a record key to start the recording process.

[00:23:24] Speaker 00:
So certainly that's a stronger argument, Your Honor.

[00:23:26] Speaker 00:
I agree.

[00:23:27] Speaker 00:
But I think when an inventor or an applicant starts talking about the instant invention, the operation of the instant invention, certainly I think that's something you can take into account.

[00:23:37] Speaker 00:
And again, it's the only way that it's done

[00:23:40] Speaker 00:
in the specification.

[00:23:44] Speaker 00:
I'm going to have to stop here before using up the time that was reserved for another attorney.

[00:23:50] Speaker 03:
Thank you.

[00:23:51] Speaker 03:
Okay.

[00:23:51] Speaker 03:
Thank you.

[00:24:00] Speaker 01:
Good morning, Your Honor.

[00:24:00] Speaker 01:
This is Michael Hawes, representing AT&T Direct TV and DISH Networks.

[00:24:05] Speaker 01:
I'd actually like to start a question you asked Judge Stoll

[00:24:08] Speaker 03:
Are you planning on covering only the exact same things he covered, or something different?

[00:24:12] Speaker 01:
Something different, Your Honor.

[00:24:14] Speaker 01:
As was mentioned by the other counsel, we have a different non-enfrenchment argument for AT&T.

[00:24:19] Speaker 01:
But there was a point that I just wanted to clarify, which is you had asked about the question about how, even if they get the construction they want, how that works.

[00:24:28] Speaker 01:
And the answer is that it's circular, in that they argued that program information was just the stuff that happened after you pressed the record key.

[00:24:37] Speaker 01:
So because they had a circular argument where they said, well, the only thing that's program information is what happens after the record key.

[00:24:44] Speaker 01:
And then they said that the record key initiates program information.

[00:24:49] Speaker 01:
They basically made that language the begin language surplusage.

[00:24:52] Speaker 01:
Because there was no way, the way they defined it, for you to ever have program information before you press the record key.

[00:24:58] Speaker 01:
So it was a circularity argument that allowed them to do that.

[00:25:02] Speaker 01:
The second thing I'd point out is that on appendix page 1447, it was previously discussed, and this is about five lines down, five and six lines down, they did say this does not achieve the utility of the instant invention.

[00:25:18] Speaker 03:
Are we still on the same issue?

[00:25:20] Speaker 03:
You said you are going to cover a different issue.

[00:25:23] Speaker 01:
I am, Your Honor, and I just want to point out one thing in the appendix, and then I'm going to move to broadcast.

[00:25:28] Speaker 03:
So 1447?

[00:25:30] Speaker 01:
Yes.

[00:25:31] Speaker 01:
And so we discussed the language at the beginning of that paragraph.

[00:25:34] Speaker 01:
And I just want to point out that right after that language, it says, this does not achieve the utility of the instant invention.

[00:25:41] Speaker 01:
I knew your honor asked about, how did it relate to the invention?

[00:25:44] Speaker 01:
And that's where they said it related to the invention.

[00:25:46] Speaker 01:
And that's the same instant invention language that you pointed out in 1444.

[00:25:51] Speaker 01:
Moving to the broadcast program information issue.

[00:25:54] Speaker 01:
Dragon took the position below that there was no need to construe broadcast program information.

[00:26:00] Speaker 01:
And so the district court, looking for the plain and ordinary meaning of that term, looked to the specification.

[00:26:07] Speaker 01:
And Dragon agrees there's no definition of that term in the specification.

[00:26:12] Speaker 01:
So the district court turned and looked to technical dictionaries from the proper time frame.

[00:26:16] Speaker 01:
The district court made a finding of fact that the person of ordinary skill in the art would have understood broadcast

[00:26:22] Speaker 01:
to require sending it to all users.

[00:26:26] Speaker 01:
Dragon does not contradict the fact that that was a finding of fact.

[00:26:31] Speaker 01:
We have said that Teva gives deference to that finding of fact.

[00:26:35] Speaker 01:
Again, Dragon does not contradict that.

[00:26:37] Speaker 01:
And what that means is that Dragon needed to show that that was clearly erroneous under the Teva standard.

[00:26:43] Speaker 01:
Again, nowhere in their briefing does Dragon ever assert that that was clearly erroneous.

[00:26:48] Speaker 03:
Can you tell me where the finding of fact is, precisely, in your opinion?

[00:26:52] Speaker 01:
So if you turn to the claim construction, Your Honor, and I'm looking at appendix page 107, and this is right at the bottom, Your Honor.

[00:27:13] Speaker 01:
It's the third line from the bottom and the second line from the bottom.

[00:27:16] Speaker 01:
I find as a fact, based on the technical dictionaries AT&T introduced, that broadcast information is information transmitted to all users.

[00:27:26] Speaker 01:
Dragon never disagrees with that.

[00:27:29] Speaker 01:
Dragon never disagrees that TEVA requires that to be clearly erroneous for it to be overturned.

[00:27:34] Speaker 01:
And Dragon never takes the position in any of its briefs that this was clearly erroneous.

[00:27:39] Speaker 01:
This court should start from the foundation that the person of ordinary skill in the yard

[00:27:45] Speaker 01:
at the relevant time, understood broadcast to require it be transmitted to all users.

[00:27:50] Speaker 03:
Okay, so this is the different argument because AT&T transmits in a different way, right?

[00:27:54] Speaker 01:
That's right.

[00:27:55] Speaker 03:
All right, I get it.

[00:27:56] Speaker 01:
This is an independent non-infringement position for AT&T.

[00:27:58] Speaker 03:
For just your client.

[00:28:00] Speaker 01:
For one of my clients, yes.

[00:28:02] Speaker 01:
So that leaves us with only two arguments they make.

[00:28:05] Speaker 01:
The first argument they make as well, but you don't find the all users definition in the intrinsic evidence.

[00:28:10] Speaker 01:
Well, first of all,

[00:28:12] Speaker 01:
your standard for overturning the plain and ordinary meaning is that it be unambiguously clear that there's a different meaning.

[00:28:18] Speaker 01:
And they don't argue that.

[00:28:19] Speaker 01:
But second of all, it actually supports the district court.

[00:28:22] Speaker 01:
The reason the all users language isn't in the intrinsic evidence is because the word broadcast is in the intrinsic evidence.

[00:28:29] Speaker 01:
And the district court said, the person of ordinary skill in the art reading this would understand that broadcast means all users.

[00:28:35] Speaker 01:
Why then would the intrinsic evidence say it yet again when it was already using the word broadcast?

[00:28:40] Speaker 03:
I need to ask you a factual question very quick because your time is out, but I'll ask.

[00:28:45] Speaker 03:
There was a stipulation of non-infringement.

[00:28:47] Speaker 03:
Was there a stipulation of non-infringement on the basis of this issue?

[00:28:50] Speaker 01:
There was, Your Honor.

[00:28:51] Speaker 01:
If you look at AT&T's stipulation of non-infringement, and that's in the appendix at page 11 and 12.

[00:28:56] Speaker 01:
Okay.

[00:28:57] Speaker 03:
So even if for some reason we didn't buy into the disclaimer argument, your client

[00:29:03] Speaker 03:
also has a stipulation of non-infringement, which would be independently upholdable in light of the transmitted to all users.

[00:29:11] Speaker 01:
That's right, Your Honor.

[00:29:11] Speaker 03:
Okay, I understand your argument.

[00:29:12] Speaker 03:
Thank you very much.

[00:29:14] Speaker 03:
Mr. May, I'm sorry, your time is up.

[00:29:18] Speaker 03:
Thank you for your argument.

[00:29:19] Speaker 03:
Mr. May, you have some rebuttal time.

[00:29:21] Speaker 03:
It's the problem when you split up arguments.

[00:29:25] Speaker 03:
You know, you run out of time.

[00:29:26] Speaker 02:
Your Honor, just a few points regarding prosecution disclaimer.

[00:29:33] Speaker 02:
And I think it's important to know that the parties do not agree the plain language of this claim controls.

[00:29:40] Speaker 02:
So now think about it.

[00:29:42] Speaker 02:
If the accused devices do not have any record key, why they care about prosecution disclaimer?

[00:29:47] Speaker 02:
We all agree the claim one of the 444 pattern cares about, I mean, specifically recites a record key is first actuated to begin a recording for the interrupted portion.

[00:30:00] Speaker 02:
So why that matters?

[00:30:03] Speaker 02:
also relevant to whether the disclaimer is clear and unmistakable.

[00:30:08] Speaker 02:
The fact that SATA, being a continuous recording device, leaves the question where the record key is implemented.

[00:30:16] Speaker 02:
That's the reason applicants always argue in a single sentence.

[00:30:20] Speaker 02:
It's not a situation where Judge Moore mentioned earlier, this is what they do, and we didn't do that for two reasons.

[00:30:26] Speaker 02:
He has a reason one, he has a reason two.

[00:30:28] Speaker 02:
No, applicants didn't do that.

[00:30:30] Speaker 02:
In multiple examples, opposing counsel pointed out,

[00:30:34] Speaker 02:
Drag can always go into detailed, I mean, applicant goes into detailed implementation.

[00:30:40] Speaker 02:
There's no record key being mentioned at all.

[00:30:44] Speaker 02:
That's the reason applicant distinguish the setup.

[00:30:49] Speaker 02:
So even if the district code, the interpretation is reasonable, there's also alternative reasonable interpretation.

[00:31:03] Speaker 02:
Because the standard for prosecution disclaimer is so high that if your owner finds this disclaimer is arguable, it's not clear and unmistakable, then there should be no disclaimer at all.

[00:31:16] Speaker 02:
Then quickly on the transmitted to all users.

[00:31:19] Speaker 03:
You have a very steep hill to climb here.

[00:31:22] Speaker 03:
I mean, you've got a judge that has had many, many, many, many patent cases.

[00:31:27] Speaker 03:
And I believe he said in his opinion, if I'm not mistaken, this is the clearest case of disclaimer he's ever seen.

[00:31:33] Speaker 02:
The second clearest.

[00:31:34] Speaker 03:
Second clearest.

[00:31:37] Speaker 03:
OK, well, there you go.

[00:31:38] Speaker 02:
Thank you for the correction.

[00:31:38] Speaker 02:
Right.

[00:31:39] Speaker 02:
So Your Honor, so that's the reason we disagree.

[00:31:41] Speaker 02:
I think a lot of confusion even today is what claim language talks about.

[00:31:46] Speaker 02:
And that's the reason I started with my oral argument that claim one, I mean, the invention talks about interrupted portion only.

[00:31:52] Speaker 02:
So we really don't care whether there's a separate recording device that is continuously recording.

[00:31:56] Speaker 02:
I think within that context, we believe the district court's language is unnecessarily strong.

[00:32:02] Speaker 02:
which actually triggered additional proceedings.

[00:32:06] Speaker 02:
And for the reasons I just mentioned earlier, and also in the briefs, we request that this court vacate the district cost of construction.

[00:32:15] Speaker 03:
Thank you, Mr. Mei.

[00:32:17] Speaker 03:
So you can stand up and sit down for your fifth and sixth time in just a second.

[00:32:22] Speaker 03:
Next case is 2016-2468 Dragon versus Dish Network.