[00:00:34] Speaker 01:
Our final case this morning is number 16-1901, Google Inc.

[00:00:40] Speaker 01:
versus Simple Air Inc.

[00:00:42] Speaker 01:
Now, the panel has decided we're going to hear separately the standing and mootness argument, and then we'll go to the merits.

[00:00:51] Speaker 01:
So we'll give you five minutes each on the standing and mootness argument.

[00:00:56] Speaker 01:
We read the motion to dismiss that we received this morning.

[00:01:00] Speaker 01:
So Mr. Wright, why don't you start with that?

[00:01:13] Speaker 05:
May it please the court, John Wright on behalf of the appellant.

[00:01:18] Speaker 05:
Google was the IPR petitioner below.

[00:01:21] Speaker 01:
So if you wanted to move this case, why don't you just give them a covenant not to sue ever on the 154 that would cover Google and its customers?

[00:01:31] Speaker 05:
So I think we've got it reversed there.

[00:01:34] Speaker 05:
I think Simple Air would have to provide that to Google.

[00:01:38] Speaker 01:
I'm sorry.

[00:01:42] Speaker 01:
So is your argument that without that covenant that there's no mootness?

[00:01:48] Speaker 05:
Without that argument, Google retains Article III standing.

[00:01:53] Speaker 00:
Because of what?

[00:01:56] Speaker 05:
Because Google faces, well, I think there are two reasons that work together to give Google Article III standing or maintain its Article III standing.

[00:02:06] Speaker 05:
So the first is the

[00:02:10] Speaker 05:
as the background, the course of conduct over the litigation below, which really started in 2011, and has shown that from then through till now, SimpleAir has been asserting.

[00:02:26] Speaker 01:
I'm not understanding.

[00:02:27] Speaker 01:
They're saying that in this other case, which we recently decided, that it's been determined that Google's product doesn't infringe, and that

[00:02:39] Speaker 01:
you won that issue and therefore it's moot.

[00:02:44] Speaker 04:
Sure, to cut to that... There's an argument that it's better than a covenant, it's issue preclusion.

[00:02:52] Speaker 04:
You've got a court standing there that says you don't have to worry, you cannot be accused of infringing the 154.

[00:02:57] Speaker 05:
Right, so to cut to that specific issue, what Google does not have

[00:03:04] Speaker 05:
Is and any assurance that simple layer will not assert or reassert the 154 patent against Google's?

[00:03:14] Speaker 05:
Current products against previously other products on the one involved in that case yes previously on asserted products Other than the product that was involved in the in the 154 litigation yes That's right, and this is different product

[00:03:35] Speaker 05:
Well, Google's position and Google's position, it's an unasserted, previously unasserted product.

[00:03:43] Speaker 05:
Google's position is that.

[00:03:44] Speaker 05:
Unasserted.

[00:03:47] Speaker 04:
Unchallenged, you mean?

[00:03:48] Speaker 04:
When you say unasserted.

[00:03:49] Speaker 04:
Unaccused.

[00:03:50] Speaker 04:
Unaccused.

[00:03:50] Speaker 04:
That's a better way to say it, yeah.

[00:03:52] Speaker 04:
So it's like you've got two products on the shelf.

[00:03:55] Speaker 04:
Is that what you're trying to tell us?

[00:03:57] Speaker 05:
There are previously unaccused Google products that Simple Air has accused

[00:04:04] Speaker 05:
subsequently accused of infringing patents.

[00:04:07] Speaker 05:
Other patents.

[00:04:09] Speaker 05:
Other patents in this family related to patents.

[00:04:12] Speaker 01:
But what about the 154?

[00:04:13] Speaker 01:
Has it accused Google of infringing the 154 with respect to these other products?

[00:04:19] Speaker 05:
It has not, but that is the imminent injury that Google is concerned about.

[00:04:28] Speaker 05:
That provided the concrete injury that's required by Article III

[00:04:34] Speaker 01:
I don't understand.

[00:04:36] Speaker 01:
If they haven't accused other products of infringing the 154, what's the case or controversy?

[00:04:43] Speaker 05:
It's the threat of infringement.

[00:04:46] Speaker 01:
Of the 154?

[00:04:50] Speaker 05:
Yes, that's right.

[00:04:53] Speaker 05:
So for example, if Google had the ability to bring a declaratory judgment action against the 154 patent,

[00:05:03] Speaker 05:
as it stands right now, then it would have Article III standing.

[00:05:08] Speaker 01:
Have they written to you and said that these other products are infringing on 154?

[00:05:12] Speaker 05:
No.

[00:05:14] Speaker 05:
But when you look at, and I recognize that the panel doesn't have the benefit of our opposition to the motion.

[00:05:21] Speaker 05:
We'll file that opposition no later than the end of today.

[00:05:26] Speaker 05:
They didn't move until 10 o'clock Saturday night.

[00:05:33] Speaker 05:
If you look at their motion to dismiss, what they say specifically.

[00:05:44] Speaker 01:
But I think you're not addressing my question.

[00:05:47] Speaker 01:
What reason do you have to believe that they're going to sue you on the 154 as to other products not involved in the earlier case?

[00:05:57] Speaker 05:
So I guess two specific reasons.

[00:06:00] Speaker 05:
Of course, we'll hear from Simple Air in a second.

[00:06:04] Speaker 05:
But in its motion to dismiss at page three, it said, Simple Air is barred by issue preclusion from reasserting the 154 patent against Google's previously accused system.

[00:06:15] Speaker 05:
What we have no assurance of, because Simple Air didn't have the benefit of our opposition to the motion yet, we talked to them this morning.

[00:06:24] Speaker 01:
No, but wait.

[00:06:25] Speaker 01:
You've got to try to answer my question.

[00:06:27] Speaker 01:
What basis?

[00:06:28] Speaker 01:
Do you have to believe that they're going to sue you on the 154 as to other products, or that there's a potential for such a suit?

[00:06:36] Speaker 05:
They haven't told us that they won't.

[00:06:41] Speaker 05:
And we approached them, and that sat against the backdrop of the litigation conduct between the parties, which again we'll spell out in detail in the motion, that they've been perfectly willing to assert

[00:06:56] Speaker 05:
patents in this family against previously unaccused products that come out, and they haven't said in their motion that they aren't going to do that.

[00:07:06] Speaker 06:
So if they stand up and say, we will not assert the 154 patent against any of Google's products or its customers, is that going to be good enough?

[00:07:17] Speaker 05:
I think that could be good enough, yes.

[00:07:21] Speaker 01:
Let's hear from Mr. Jacobson.

[00:07:33] Speaker 01:
So now that I have the right counsel, let me ask the question again.

[00:07:39] Speaker 01:
Why don't you just give them a covenant not to sue on the 154 if you want to moot this case?

[00:07:46] Speaker 03:
Your Honor, the concern is not that there's some other secret Google product that they had in the past that might infringe the 154.

[00:07:53] Speaker 03:
There's no evidence of that.

[00:07:54] Speaker 01:
But why don't you want to just give them a covenant not to sue on it?

[00:07:57] Speaker 03:
The concern is that there are other pending cases between SimpleAir and Google involving other patents with different limitations.

[00:08:04] Speaker 03:
What difference does that make?

[00:08:06] Speaker 03:
The covenant not to sue could be used by Google to argue that there's an implied license in those other cases.

[00:08:12] Speaker 01:
With respect to other patents?

[00:08:13] Speaker 03:
Yes.

[00:08:14] Speaker 01:
No, that's a hard one.

[00:08:16] Speaker 01:
You just write the covenant not to sue.

[00:08:18] Speaker 01:
This covers only the 154 patents.

[00:08:20] Speaker 01:
That's it.

[00:08:21] Speaker 03:
We're specifically worried about this court's holding in the trans-court case, Your Honor, where a covenant not to sue was written pretty carefully to cover only one patent, and this court held it could extend to another patent.

[00:08:32] Speaker 03:
So now, we may be able to work that out, but we need to negotiate with Google the exact language of what the covenant not to sue would say.

[00:08:40] Speaker 03:
And if we're satisfied that's not an issue, we'd be open to it.

[00:08:43] Speaker 03:
But we need to negotiate it with them.

[00:08:46] Speaker 06:
But that's your intent, I guess.

[00:08:48] Speaker 06:
I mean, that's the only way you can move this case, right?

[00:08:51] Speaker 06:
That you say to Google, we don't intend to sue you or your customers on the 154 patent ever.

[00:09:00] Speaker 06:
I mean, is that your intent?

[00:09:02] Speaker 06:
Because if you're not disclaiming that, then I don't see how they don't have standing.

[00:09:07] Speaker 03:
Let me explain why they don't have standing even before a broad covenant not to sue.

[00:09:12] Speaker 03:
The reason is that to have standing, they need to identify more than a hypothetical harm.

[00:09:17] Speaker 03:
Some hypothetical lawsuits could happen against some Google product that has not been identified.

[00:09:21] Speaker 03:
That was this court's holding in Phigenics, a hypothetical speculative harm.

[00:09:26] Speaker 06:
Yes, the facts in Phigenics are completely different here.

[00:09:30] Speaker 06:
I mean, that was an inventor who was trying to license this product that nobody had ever licensed.

[00:09:35] Speaker 06:
And he was saying that the patentee

[00:09:38] Speaker 06:
somehow prevented that and couldn't connect that up.

[00:09:40] Speaker 06:
You have a long history of litigation against Google with this patent and with patents in this family.

[00:09:47] Speaker 06:
It's completely different than the facts in Phigenic.

[00:09:50] Speaker 03:
Facts are different, Your Honor, but the holding is on point.

[00:09:53] Speaker 03:
And here we have a unique situation that we have a holding of this court that precludes us by issue preclusion from suing Google's previously accused product.

[00:10:02] Speaker 03:
Its patent has expired.

[00:10:03] Speaker 03:
That means any product Google comes out from here forward, we can't sue them on end.

[00:10:07] Speaker 06:
But it doesn't preclude you from suing them on unaccused products.

[00:10:12] Speaker 06:
And unless you're willing to say that, I don't understand, given the history of litigation, why that's not sufficient to give them standing to challenge your patent.

[00:10:20] Speaker 03:
I understand, Your Honor.

[00:10:22] Speaker 06:
Do you think phygenics prevents that view of standing?

[00:10:29] Speaker 03:
I do, Your Honor, because phygenics held that when an appellant is coming in and asking this court to take jurisdiction over a separate administrative proceeding,

[00:10:37] Speaker 03:
the burdens on them to show more than just a hypothetical harm in this concern, and maybe there's some other... Yeah, but they had no concern about being sued for infringement.

[00:10:46] Speaker 01:
That was the problem they had in the phygenics case.

[00:10:54] Speaker 01:
Well, any more questions?

[00:10:56] Speaker 01:
Do you have anything more to say about this, Mr. Wright?

[00:11:01] Speaker 01:
I think it...

[00:11:07] Speaker 01:
One thing be helpful to this court is that if the two of you get together and see if you can work out a Covenant if that's the intent not to sue So simple I would not sue Google on the 154 with respect to any products or any customers and That might make the case go away.

[00:11:29] Speaker 01:
I mean there must be some way of getting around Whatever happened in trans core, which I don't remember all that well

[00:11:35] Speaker 04:
The care of the implied license being negotiated away.

[00:11:39] Speaker 04:
And that's your concern.

[00:11:42] Speaker 03:
We have to analyze the issue and discuss it.

[00:11:46] Speaker 05:
Yeah, we're willing to do that.

[00:11:48] Speaker 05:
We approached counsel this morning in view of the motion to dismiss.

[00:11:53] Speaker 05:
So I think we've agreed to discuss that after the hearing.

[00:12:00] Speaker 01:
OK.

[00:12:02] Speaker 01:
Why don't we give you, most of my colleagues have a different idea, why don't we give you 30 days.

[00:12:06] Speaker 01:
We won't issue a decision here for 30 days to give you a chance to resolve this by negotiation.

[00:12:13] Speaker 01:
Does that make sense?

[00:12:15] Speaker 01:
Yeah.

[00:12:15] Speaker 01:
Okay.

[00:12:16] Speaker 01:
All right.

[00:12:16] Speaker 01:
So let's turn to the merits, which we may never have to reach if you can get an agreement.

[00:12:21] Speaker 01:
We'll give you 10 minutes aside.

[00:12:29] Speaker 01:
Okay, Mr. Wright.

[00:12:36] Speaker 05:
OK.

[00:12:40] Speaker 05:
So again, may it please the court.

[00:12:43] Speaker 05:
The board erred in limiting the claimed central broadcast server to the reception of data from a plurality of information sources when the plain language of claim one unambiguously has no such limitation.

[00:13:03] Speaker 04:
So your argument on the claim construction issue, because the argument here is that you never really raised that below, and so you waived it.

[00:13:10] Speaker 04:
I guess your argument is that you argued in the alternative to the board.

[00:13:15] Speaker 04:
Because you clearly, at least in the oral hearing of the board, went along with the board saying that the broadest reasonable interpretation was multiplicity of sources.

[00:13:25] Speaker 04:
So is it your view that we should view you as having made alternative arguments to the board to say, well, we really think the preferred meaning is that it's not limited.

[00:13:34] Speaker 04:
It could be one more.

[00:13:36] Speaker 04:
But if you want to go with more, it's OK with us, because we think we prevail on that ground as well.

[00:13:42] Speaker 05:
Well, not quite, Your Honor.

[00:13:44] Speaker 05:
It's not an alternative argument.

[00:13:45] Speaker 05:
The argument that Google put forth in its petition and the argument

[00:13:54] Speaker 05:
Well, I think it was more than one sentence.

[00:13:57] Speaker 05:
Google has never advocated to the board that it should construe these claims as requiring a plurality of information sources.

[00:14:10] Speaker 01:
No, but you did agree that the district court construction, which required a plurality, was something the board should adopt.

[00:14:18] Speaker 05:
No, Your Honor.

[00:14:20] Speaker 05:
I don't think that Google did that.

[00:14:23] Speaker 05:
Google made, in the oral hearing, if that's the specific instance that you're referring to, Google made a general, Google's counsel made a general assertion that, yes, we agree with the board's construction.

[00:14:37] Speaker 05:
But when Google's counsel was specifically questioned on the plurality of information sources issue, if you just look

[00:14:45] Speaker 05:
I think it's one page more of the hearing, and I can give you the... I know.

[00:14:50] Speaker 01:
I've read it.

[00:14:50] Speaker 05:
OK.

[00:14:51] Speaker 05:
So I think what we're talking about here is estoppel.

[00:14:59] Speaker 05:
And estoppel is there to prevent a party from taking an inconsistent decision.

[00:15:03] Speaker 01:
I know they argue estoppel, but I don't think it's really a question of estoppel.

[00:15:07] Speaker 01:
I think it's more a question of waiver.

[00:15:09] Speaker 05:
Well, so if it's a question of waiver, then

[00:15:12] Speaker 05:
The issue is properly before this court if the lower tribunal passed on the issue, full stop, irrespective of whether it was pressed below.

[00:15:23] Speaker 05:
Now here, the tribunal ruled on the issue.

[00:15:26] Speaker 05:
It was the dispositive issue in this case.

[00:15:29] Speaker 04:
I mean, you think you could have gone in front of the board in your petition and said, broadest real interpretation has a multiplicity of sources.

[00:15:38] Speaker 04:
At the oral argument, you could have said, in case there's any doubt,

[00:15:41] Speaker 04:
BTAB, we believe we're inserting multiple sources.

[00:15:47] Speaker 04:
And then the board rules on that basis, and you come up here and say that claim construction was wrong.

[00:15:53] Speaker 05:
Is that you believe that you can do that?

[00:15:55] Speaker 05:
No, but that's not what happened here.

[00:15:57] Speaker 04:
Well, that's what we're trying to get at.

[00:15:59] Speaker 05:
OK, so I think we have to go back to the petition and look at what Google actually said.

[00:16:05] Speaker 05:
And when you go to the petition,

[00:16:07] Speaker 05:
When you go to the claim construction section, so I'm at appendix 140.

[00:16:13] Speaker 05:
Well, 141, at the bottom, that's where the claim construction section starts.

[00:16:21] Speaker 05:
And it's very important that I walk you through this.

[00:16:25] Speaker 05:
It says, claim construction, it says A, prior related constructions.

[00:16:31] Speaker 05:
Where are you on 141?

[00:16:32] Speaker 05:
At the very bottom.

[00:16:33] Speaker 05:
141?

[00:16:34] Speaker 05:
Appendix 141.

[00:16:37] Speaker 05:
Right at the very bottom, it says prior related constructions.

[00:16:42] Speaker 05:
And you flip the page, and it informs the board that in an underlying proceeding, a district court put down these constructions.

[00:16:52] Speaker 04:
Then we say that the board may, of course, adopt a broader construction than those presented on the term below.

[00:16:58] Speaker 05:
Right.

[00:16:58] Speaker 05:
And Google presents these constructions as a baseline.

[00:17:02] Speaker 05:
The board can go no narrower.

[00:17:05] Speaker 05:
than these constructions.

[00:17:07] Speaker 05:
And then if you look from 143 over to 144, Google lays out four or five specific areas where the district courts.

[00:17:16] Speaker 04:
And with regard to the one in question, it's on page 144, right?

[00:17:20] Speaker 04:
Right.

[00:17:21] Speaker 04:
It's on page 144.

[00:17:22] Speaker 04:
The question also was, the central sent received data from the information service instead of a parallelity of sources.

[00:17:28] Speaker 05:
Right.

[00:17:29] Speaker 05:
And then, and I think this is probably the dispositive point, when you go to

[00:17:35] Speaker 05:
Google putting forth their ground of unpatentability to the board.

[00:17:39] Speaker 05:
And this is at appendix 148, 151, 155.

[00:17:41] Speaker 05:
Google?

[00:17:44] Speaker 05:
Yes, we'll set that.

[00:17:47] Speaker 05:
OK, so it starts at appendix 148.

[00:17:55] Speaker 05:
Write the Yon and Cain grounds.

[00:17:57] Speaker 05:
If you go down about six lines, it says, Yon includes an information source.

[00:18:03] Speaker 05:
And then when you go over to 151, you're pointing to Jan's information source in the drawing on page 151.

[00:18:15] Speaker 05:
Then I think the clearest application, when you get to element A, this goes from 154 to 155.

[00:18:26] Speaker 05:
Google says at the top of 155 that net news

[00:18:32] Speaker 05:
at the very last sentence of the paragraph at the top of 155, net news and information source generates this data in the form of tens of thousands of net news articles daily.

[00:18:45] Speaker 05:
When Google went to apply YAN using the unambiguous claim language to the claim, it said that YAN has an information source.

[00:19:00] Speaker 05:
And if there were any doubt as to Google's position, it's resolved in the district court's markman order, which the board unambiguously relied on when it adopted these constructions.

[00:19:14] Speaker 05:
And there, Google unambiguously argues that it should be an information source.

[00:19:21] Speaker 01:
I'm not sure if having argued something before the district court preserves the argument before the board.

[00:19:26] Speaker 01:
Certainly, the board didn't think that you were arguing about this.

[00:19:30] Speaker 01:
And I don't understand that their having used the morality of sources construction somehow potentially excuses your waiver.

[00:19:40] Speaker 01:
I think you can have a waiver problem.

[00:19:42] Speaker 01:
Now, that doesn't mean that we can't excuse the waiver and go ahead and decide the issue.

[00:19:50] Speaker 01:
But I think you've done a very poor job of preserving this issue in the petition.

[00:19:57] Speaker 01:
And I don't think you can argue that

[00:19:59] Speaker 01:
the fact that you raised it before the district court saves it for the board?

[00:20:04] Speaker 05:
Not that it saves it for the board, but it was the same parties.

[00:20:08] Speaker 05:
It was Google and Simple Air.

[00:20:10] Speaker 05:
And the board unambiguously relied on the Markman order and said that it reviewed it and said that it found it reasonable.

[00:20:17] Speaker 05:
So the board can't be under a mistaken impression here.

[00:20:21] Speaker 04:
The district court found multiplicity of sources, correct?

[00:20:24] Speaker 05:
The district court adopted the construction from

[00:20:30] Speaker 05:
Sorry, the board adopted the district court's construction.

[00:20:33] Speaker 05:
And this error has been propagated through.

[00:20:36] Speaker 04:
And the district court litigation on the 154?

[00:20:39] Speaker 05:
Yes.

[00:20:40] Speaker 04:
And your client advocated multiple sources.

[00:20:44] Speaker 05:
No.

[00:20:45] Speaker 05:
Unambiguously advocated it should be a single source.

[00:20:49] Speaker 05:
Google has never advocated that this should be a plurality of sources.

[00:20:55] Speaker 05:
Even if you look at the board's institution.

[00:20:58] Speaker 05:
And previous litigation?

[00:20:59] Speaker 05:
In prior litigation, Google has unambiguously said there should be a single, that essential brought in.

[00:21:09] Speaker 05:
So I can point you to that in the markment order where the district court is laying out the party's positions.

[00:21:18] Speaker 01:
What page is the markment order in?

[00:21:21] Speaker 05:
Well, I'm specifically looking at Appendix 6253.

[00:21:29] Speaker 05:
as the first example.

[00:21:37] Speaker 04:
Yes, between Google and Simple Error.

[00:21:45] Speaker 05:
And if you look at the first full paragraph on that page, Google asserts that issues presented by the parties differ from those in Google One.

[00:21:54] Speaker 01:
Really, it says 6258 and 6259.

[00:21:57] Speaker 01:
And I agree with you.

[00:21:59] Speaker 01:
You argued that before the district court.

[00:22:02] Speaker 01:
But arguing before the district court is not the same as arguing before the board.

[00:22:07] Speaker 05:
If we turn to the board's institution decision to show that the board understood Google's position, if we look at the institution decision at appendix 302.

[00:22:23] Speaker 05:
Appendix 302.

[00:22:25] Speaker 05:
Yep.

[00:22:26] Speaker 05:
Okay, there the board is determining whether it's going to institute trial.

[00:22:32] Speaker 05:
It lays out the party's positions actually right at the top of 301.

[00:22:37] Speaker 05:
It says, Google contends that Ann discloses generating data at Ann information source.

[00:22:43] Speaker 05:
And then if you come over to 302,

[00:22:48] Speaker 05:
Simple Air, you know, makes its argument and the board says that we're not persuaded.

[00:22:53] Speaker 05:
Simple Air's arguments are not persuaded in view of our interpretation of central broadcast server.

[00:22:57] Speaker 05:
Now this is a little bit confusing when you read this because there's certainly a tension between the board's construction, adopted construction and what it says here, but it says that each server can receive data from one or more sources.

[00:23:11] Speaker 05:
Claim one recites a message to transmit data from an information source, I'm right in the middle of 302,

[00:23:17] Speaker 05:
generating data at the information source, again, italicized, wherein the information source is associated with an online service relating to generated data.

[00:23:27] Speaker 05:
And you read that and you think, OK, the board gets it.

[00:23:30] Speaker 05:
And it went on to institute over again.

[00:23:35] Speaker 05:
And once it did that, Google did what most petitioners do, is they said, well, we think the board got it

[00:23:44] Speaker 05:
wrong here.

[00:23:45] Speaker 05:
Maybe it understands it.

[00:23:46] Speaker 05:
Maybe it doesn't.

[00:23:47] Speaker 05:
There's a tension.

[00:23:47] Speaker 05:
But we're going to proceed over the course of the trial as if it were a plurality of sources, because Google wins either way.

[00:23:58] Speaker 05:
So Google thought it would win either way.

[00:24:02] Speaker 05:
So in its reply, Google said, OK, it's like getting a Markman hearing in district court.

[00:24:08] Speaker 05:
You don't precede the rest of the trial arguing

[00:24:12] Speaker 05:
the plane construction was wrong.

[00:24:15] Speaker 01:
Okay, Mr. Wright, I think we're out of time.

[00:24:16] Speaker 01:
We'll give you two minutes for your rebuttal.

[00:24:18] Speaker 01:
Mr. Jacobson.

[00:24:34] Speaker 03:
May it please the court, the first issue as we've been discussing is whether the board

[00:24:38] Speaker 03:
correctly construed a central broadcast server to require a multiplicity.

[00:24:43] Speaker 01:
But even if Google didn't preserve this issue, we don't have to adopt the wrong claim construction, right?

[00:24:50] Speaker 01:
If we conclude that the plurality of sources claim construction is wrong under the Lubresol case, right?

[00:24:57] Speaker 03:
You don't have to adopt the wrong claim construction, Your Honor.

[00:25:00] Speaker 03:
You must find that Google did not timely present this argument below under the board's rules.

[00:25:06] Speaker 01:
Why do we have to find that they raised the argument below?

[00:25:12] Speaker 01:
In Lubrizol, the court adopted a claim of instruction which had not been advocated by either party and said we could do that.

[00:25:21] Speaker 03:
The board has a rule on point, and it's not a discretionary rule.

[00:25:25] Speaker 03:
The rule is the board cannot consider

[00:25:27] Speaker 03:
untimely raised arguments.

[00:25:28] Speaker 03:
And this court's holding in Del the acceleron was, it doesn't matter if the board considers it.

[00:25:33] Speaker 01:
That's binding on us?

[00:25:34] Speaker 03:
It is, Your Honor.

[00:25:35] Speaker 03:
That is binding on you.

[00:25:36] Speaker 03:
Because if you were to remand, it's binding on you.

[00:25:38] Speaker 01:
We have to go with a wrong claim construction because of a rule that the board adopted?

[00:25:42] Speaker 03:
You don't have to reach the claim construction, Your Honor, because the underlying theory of obviousness was withdrawn because it wasn't raised properly below.

[00:25:50] Speaker 03:
So you don't reach the merits because it was waived.

[00:25:52] Speaker 04:
But that's just labor.

[00:25:54] Speaker 06:
Waiver is a judicial rule for us.

[00:25:57] Speaker 06:
It's not in the statute or anything.

[00:25:59] Speaker 06:
If we find the correct claim construction is theirs, then we get to say that's the correct claim construction, don't we?

[00:26:08] Speaker 03:
You can, but the board can't then apply that claim construction because it wasn't timely raised by Google on its petition.

[00:26:14] Speaker 03:
Because of the board's rule, you can't raise it on time.

[00:26:16] Speaker 06:
The board can't waive its own rules?

[00:26:18] Speaker 03:
No, it can't.

[00:26:19] Speaker 03:
That was the holding of Dalby Acceleron.

[00:26:21] Speaker 03:
In that case, the board did decide

[00:26:23] Speaker 03:
it was going to consider an argument that was raised for the first time.

[00:26:25] Speaker 01:
So we're stuck.

[00:26:27] Speaker 01:
If we say they got the law and claim construction, the right claim construction is X, we can't send it back to the board to apply X because they have a rule about waiver applicable to the parties?

[00:26:37] Speaker 01:
That seems a little far-fetched.

[00:26:40] Speaker 03:
The board's rule is clear on that, Your Honor.

[00:26:42] Speaker 01:
But let me address why... The board's rule doesn't purport to bind us.

[00:26:46] Speaker 03:
Let me address why this court should hold that waiver applies.

[00:26:50] Speaker 03:
Now, Google mentioned that

[00:26:53] Speaker 03:
This court can consider issues that were decided, even if they were not raised below.

[00:26:57] Speaker 03:
The board didn't decide this issue of whether it should be a plurality or an uninformation source.

[00:27:03] Speaker 03:
The board didn't discuss the parties' positions.

[00:27:05] Speaker 03:
It didn't make factual findings.

[00:27:07] Speaker 03:
That's because Google agreed to this construction.

[00:27:09] Speaker 03:
So you just have one sentence in the board's decision, and Google agreed to the district court's construction.

[00:27:16] Speaker 04:
They said to the board, in our view, is the board should follow the broadest reasonable interpretation.

[00:27:21] Speaker 04:
It should be the sort.

[00:27:22] Speaker 04:
However, if you continue with the constructional virality, that still is made obvious.

[00:27:28] Speaker 04:
This is at the rural argument.

[00:27:29] Speaker 03:
Yes, Your Honor.

[00:27:31] Speaker 03:
too late to raise the issue, and the board didn't end up considering that argument.

[00:27:34] Speaker 04:
Well, the question is whether or not we agree with you or disagree with you on whether the issue had been raised earlier by what your adversary has pointed to us in the record that we can see.

[00:27:46] Speaker 03:
Is your honor referring to the one sentence in the petition?

[00:27:49] Speaker 04:
The one sentence in the petition and the other matter they just referred to.

[00:27:53] Speaker 03:
The one sentence is not sufficient because this court has held you need developed argument.

[00:27:57] Speaker 03:
One cursory sentence is not enough.

[00:27:59] Speaker 01:
So it's now our rule about waiver rather than the board's rule about waiver.

[00:28:04] Speaker 03:
This is what the court has held is required to raise an issue in general is more than just one sentence.

[00:28:11] Speaker 06:
I'm still puzzled.

[00:28:13] Speaker 06:
If we decide the correct claim construction can include only one, why can't we remand it to the board and say you have to consider this under the correct claim construction?

[00:28:25] Speaker 06:
It may be that we won't let the board do it

[00:28:28] Speaker 06:
on their own, but we certainly have the authority to tell the board to do something, don't we?

[00:28:34] Speaker 03:
That would be contrary to the board's rule, which is the board claim construction.

[00:28:36] Speaker 06:
Who cares about the board's rule?

[00:28:38] Speaker 06:
We're not the board.

[00:28:39] Speaker 06:
We're not bound by the board's rule.

[00:28:40] Speaker 06:
We can order the board to consider this under the proper claim construction.

[00:28:45] Speaker 06:
Like I said, it may be that the board can't, sua sponte, consider things not timely raised.

[00:28:51] Speaker 06:
But if we tell them, you did this under the wrong claim construction and instruct them to do it,

[00:28:56] Speaker 06:
The only thing preventing them is a rule that we're telling them they're not to apply in this case.

[00:29:02] Speaker 03:
I understand, Your Honor.

[00:29:03] Speaker 03:
Let me then turn to the merits and explain why this was the rule.

[00:29:06] Speaker 06:
Wait.

[00:29:06] Speaker 06:
Is your answer we can do that?

[00:29:08] Speaker 06:
I understand your points on waiver.

[00:29:10] Speaker 06:
I think you actually have some pretty good arguments on waiver.

[00:29:12] Speaker 06:
But I'm baffled by your notion that we can't tell them to do this if we disagree.

[00:29:19] Speaker 06:
I mean, I don't understand that at all.

[00:29:21] Speaker 03:
It's because of what the board's rule says, Your Honor.

[00:29:23] Speaker 03:
It says they can't consider it if they're untimely.

[00:29:26] Speaker 04:
That's just a related question.

[00:29:27] Speaker 04:
Let's assume that this is a bargain that we decide that the issue is not waived and that the broadest reasonable interpretation is one or more.

[00:29:39] Speaker 04:
We send the case back.

[00:29:40] Speaker 04:
The patent is expired.

[00:29:42] Speaker 04:
What standard does our ruling on broadest reasonable interpretation govern proceedings on remand?

[00:29:51] Speaker 03:
If it was remanded, the board would have to use the Phillips construction, Your Honor, because the patent

[00:29:56] Speaker 03:
is now expired.

[00:29:57] Speaker 03:
Now, the board noted that its constructions were also consistent with the Phillips construction, so they decided this case under both using the constructions they did use.

[00:30:06] Speaker 04:
Well, I'm asking you is whether you believe the board is free then to disregard our interpretation of the broadest reasonable interpretation and find their own Phillips interpretation.

[00:30:17] Speaker 03:
They would be, Your Honor, unless you gave a construction that was under the Phillips interpretation as well, because this patent was now expired.

[00:30:25] Speaker 01:
Well, let's talk about the Phillips interpretation as applied to the claim language here, which it seems that plurality is not the right construction if you look at the claim language, because it doesn't talk about a plurality.

[00:30:40] Speaker 03:
Let me explain why that's in the claim.

[00:30:42] Speaker 03:
Actually, let me clarify.

[00:30:43] Speaker 03:
Is your honor referring to the claim language that says the information source?

[00:30:46] Speaker 01:
Yeah.

[00:30:47] Speaker 01:
Well, it's not just that.

[00:30:48] Speaker 01:
It's other aspects of it as well.

[00:30:53] Speaker 03:
Let me explain where this is found in the claim language.

[00:30:56] Speaker 03:
The term that the board construed is central broadcast server.

[00:31:00] Speaker 03:
The patent doesn't recite just a broadcast server.

[00:31:03] Speaker 01:
It recites a... Yeah, but I mean, the preamble says a method to transmit data from an information source.

[00:31:10] Speaker 01:
And then it refers later on to the information source.

[00:31:13] Speaker 01:
And then it talks about a central broadcast server.

[00:31:16] Speaker 01:
So your argument is that somehow central broadcast server overcomes that earlier language in the claim?

[00:31:23] Speaker 03:
Yes, Your Honor, because that earlier language in the claim is not talking about what a central broadcast server is.

[00:31:29] Speaker 03:
It's talking about what happens when you have a central broadcast server.

[00:31:33] Speaker 03:
You have a server that's configured to receive data from multiple information sources.

[00:31:38] Speaker 03:
And at the particular time, you just get a transmission from one particular information source.

[00:31:44] Speaker 03:
So the thing is still a central broadcast server because it's configured to receive from multiple.

[00:31:48] Speaker 03:
But the claim is written to cover a situation when just one happens to be

[00:31:53] Speaker 03:
transmitting and there's a diagram that illustrates that situation in our response brief on page 31 where you have just a single transmission to a central broadcast server but it's configured to receive data from multiple... Central loses its meaning unless you have a plurality of inputs.

[00:32:11] Speaker 03:
Yeah, you have to delete it.

[00:32:12] Speaker 04:
Why is that necessarily so?

[00:32:15] Speaker 04:
Why can't central be regarded to the transmission where the information is going once it's been received?

[00:32:22] Speaker 03:
It's because

[00:32:23] Speaker 03:
That would just be a broadcast server.

[00:32:24] Speaker 03:
That wouldn't be a central broadcast server.

[00:32:28] Speaker 03:
To have a broadcast server, you need to have the server sitting in between one content provider that gets the content and it broadcasts it out to subscribers.

[00:32:37] Speaker 03:
That's the prior art.

[00:32:38] Speaker 03:
That's what the invention overcame by claiming a central broadcast server, which has multiple information sources that can send data to the central broadcast server.

[00:32:49] Speaker 03:
And this is supported by the specification

[00:32:52] Speaker 03:
as well, Your Honor.

[00:32:53] Speaker 03:
Figure 1 in the pattern on Appendix page 44 shows the architecture of the system, and it shows multiple information providers sending feeds to the central broadcast server, which is labeled 33.

[00:33:12] Speaker 03:
And that's repeatedly confirmed by the written description.

[00:33:17] Speaker 04:
Well, what about the 279 path?

[00:33:20] Speaker 04:
279 patents in the family, right?

[00:33:22] Speaker 04:
Yes.

[00:33:23] Speaker 04:
And the 279 patent talks about a central broadcast server configured to receive data from at least one source, meaning one or more.

[00:33:34] Speaker 01:
Which seems to suggest that a central broadcast server doesn't have to have a plurality.

[00:33:41] Speaker 04:
Your Honor, I think what the 279... Let's talk about the 279.

[00:33:45] Speaker 04:
Talking about central broadcast server, there's no indication that there's any difference between any of the central broadcast servers in the 279, the 154, the 914, and the 433, right?

[00:33:58] Speaker 03:
No, I don't believe so.

[00:33:59] Speaker 04:
The specs are all the same, right?

[00:34:01] Speaker 04:
Yes, Your Honor.

[00:34:02] Speaker 04:
Okay.

[00:34:03] Speaker 04:
So that's why I raise this, because it's perfectly clear that in the 279 and in claim one, the central broadcast server is configured to receive data from at least one source, right?

[00:34:15] Speaker 03:
I believe that we addressed this exact argument in our claim construction briefing in the 279, and that's why the judge below ultimately constrained... No, but doesn't that mean that a central broadcaster's... Doesn't that mean that a central broadcast server can have only one information source?

[00:34:35] Speaker 03:
No, it doesn't, Your Honor.

[00:34:36] Speaker 01:
Why not?

[00:34:37] Speaker 03:
It doesn't.

[00:34:37] Speaker 03:
That would read central at the claim.

[00:34:39] Speaker 03:
The 279... Why?

[00:34:40] Speaker 01:
Because in the 279 patent,

[00:34:43] Speaker 01:
It specifically says a central broadcast server can have one source.

[00:34:47] Speaker 03:
I believe it says a central broadcast server is capable of receiving data from one information source.

[00:34:53] Speaker 03:
It's not the same as configured to.

[00:34:56] Speaker 03:
Our argument is set out very clearly.

[00:34:57] Speaker 04:
If it's configured to receive from at least one, that means it can receive from only one.

[00:35:03] Speaker 03:
If it is configured to receive from at least one.

[00:35:06] Speaker 03:
But it has to be configured to receive from multiple, Your Honor, to be a central broadcast server.

[00:35:12] Speaker 04:
And there is a difference in the... Then the central broadcast server that is configured to receive one, if it's only one, is not a central broadcast server?

[00:35:24] Speaker 03:
If I understand your question, if you construe a central broadcast server to be configured... I'm just still looking at the 279.

[00:35:29] Speaker 04:
Yeah.

[00:35:31] Speaker 04:
And you're saying if it's configured to receive only one, it's not a central broadcast server?

[00:35:36] Speaker 03:
Yes, yeah.

[00:35:41] Speaker 03:
And we explain that difference in the markment for the 279, and Judge Gilstrap addresses that difference.

[00:35:47] Speaker 03:
There is a distinction there between the 279 and the 154.

[00:35:54] Speaker 01:
OK.

[00:35:55] Speaker 01:
Thank you, Mr. Jacobson.

[00:35:57] Speaker 01:
Mr. Wright?

[00:35:58] Speaker 03:
I'd like to address the established.

[00:36:00] Speaker 01:
No, you're out of time.

[00:36:12] Speaker 05:
Just a couple of very quick points.

[00:36:16] Speaker 06:
Google is... Can I just ask you about this BRI Phillips stuff?

[00:36:19] Speaker 06:
Yes.

[00:36:20] Speaker 06:
Do you agree that if it goes back to the board they would have to use the Phillips standard?

[00:36:24] Speaker 06:
I think they would have to use the Phillips standard.

[00:36:26] Speaker 06:
So it would be pointless for us to decide what's the proper BRI standard?

[00:36:30] Speaker 05:
Well, I think that you could say that the standard is... that the construction is the same either way.

[00:36:37] Speaker 05:
I don't think that...

[00:36:39] Speaker 05:
it makes a difference.

[00:36:40] Speaker 05:
I think that under Philips or BRI.

[00:36:42] Speaker 04:
We've done that many times in the past when we have a situation like this in front of us.

[00:36:47] Speaker 05:
Yes.

[00:36:49] Speaker 05:
So Google has never, just real quick, Google has never advocated for a plurality of information sources.

[00:36:55] Speaker 05:
There's a fundamental difference between agreeing with the board's construction, which is the spin that Simple Air has put on this, and saying, OK, we received the board's construction.

[00:37:06] Speaker 05:
We win under that either way.

[00:37:09] Speaker 05:
without relinquishing the right to appeal the issue of the plurality of information sources.

[00:37:16] Speaker 05:
Second, the board, simple error, said that the board did not adjudicate this issue below.

[00:37:23] Speaker 05:
The board unambiguously adjudicated this issue.

[00:37:26] Speaker 05:
It's on appendix 6.

[00:37:27] Speaker 01:
It didn't adjudicate the issue in the sense of treating it as a disputed issue.

[00:37:32] Speaker 01:
They used plurality.

[00:37:33] Speaker 01:
That doesn't excuse

[00:37:35] Speaker 01:
waiver, if there is waiver, and if we choose to apply it.

[00:37:40] Speaker 05:
On Appendix 293, which is the board's institution decision,

[00:38:06] Speaker 05:
It says in the middle of the page, it says, the parties assert that the district court's construction of the terms are consistent with the BRI.

[00:38:19] Speaker 05:
Don't think that that's what Google said.

[00:38:22] Speaker 05:
But as modified to account for minor differences in language between the claims.

[00:38:28] Speaker 05:
So the board recognized that.

[00:38:31] Speaker 05:
there were minor differences or could be minor differences in the claim language.

[00:38:37] Speaker 05:
Nonetheless, it went to adjudicate the issue and it cited, if you look at the next page on 295, when it goes to central broadcast server, it cites to the Markman order.

[00:38:50] Speaker 01:
I think we're out of time.

[00:38:52] Speaker 01:
Thank you, Mr. Wright.

[00:38:53] Speaker 01:
Thank both counsel.

[00:38:54] Speaker 01:
The case is submitted.