[00:00:00] Speaker ?: Thank you. [00:00:29] Speaker ?: Okay. [00:01:04] Speaker 03: All rise. [00:01:18] Speaker 03: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:01:23] Speaker 03: God save the United States and this honorable court. [00:01:28] Speaker 05: Thank you. [00:01:29] Speaker 05: Please be seated. [00:01:35] Speaker 05: Okay. [00:01:35] Speaker 05: Good morning, everyone. [00:01:36] Speaker 05: The first argued case this morning is number 16, 1906, Handheld Products Incorporated against Amazon.com Inc. [00:01:47] Speaker 05: Mr. Luck. [00:01:51] Speaker 01: Thank you, Your Honor. [00:01:52] Speaker 01: Good morning to the panel. [00:01:53] Speaker 01: May it please the court. [00:01:55] Speaker 01: The District Court's construction of selectively and capturing our textbook examples. [00:02:02] Speaker 02: What do you understand the word selectively to mean here? [00:02:07] Speaker 02: Is that directed to the quality of the image, selecting a good image? [00:02:12] Speaker 02: Is that the idea? [00:02:13] Speaker 01: No, it is not, Your Honor. [00:02:14] Speaker 01: Selectively refers to, if you look at Figure 2, it takes a frame off of the bust that comes from the frame grabber of the camera. [00:02:24] Speaker 01: and then places that frame into memory. [00:02:29] Speaker 01: The concept of image resolution or quality relates only to the mode where the user is doing the selecting. [00:02:37] Speaker 01: When the selecting is done by the processor, as is made clear as an alternative right from the abstract of the invention, there's a software routine boxes, I believe 140 to 150, [00:02:51] Speaker 01: If the image cannot be decoded, it gets sent to a file and you start the process over again until an image is selected or a frame is selected that can be decoded. [00:03:02] Speaker 05: You say it may clear from the abstract, but there was concern about definiteness and sufficiency in terms of the scope that you say is the correct scope. [00:03:16] Speaker 01: Well, are you speaking with respect to claim one, Your Honor? [00:03:19] Speaker 05: Well, I'm talking about selectively. [00:03:21] Speaker 05: When you say that there was a mistake and that that was too narrowly construed, but that there were a variety of concerns that I assume were argued. [00:03:34] Speaker 01: Well, I believe, Your Honor, that the district court essentially struck the sentences of the alternate mode of using the processor to be the trigger for the selectively capturing step. [00:03:49] Speaker 01: And so where I would start with, and there are over five places in the specification of the patent that made clear that an automatic trigger is an alternative to a user trigger. [00:04:02] Speaker 01: And that was where the court went wrong on its construction of selectively. [00:04:09] Speaker 05: Go ahead. [00:04:12] Speaker 05: I was going to pursue the thought of the sufficiency of the algorithm for the automatic trigger. [00:04:19] Speaker 01: Well, the sufficiency of the algorithm came into play in Claim 22. [00:04:25] Speaker 01: And so the first point that I'm addressing is what we believe is an improper construction of Claim 1, which does not have an issue with the algorithm. [00:04:38] Speaker 01: In Claim 22, the algorithm of [00:04:43] Speaker 01: of processing means for processing an imaged target is found, if that's what your honor is referring to. [00:04:50] Speaker 05: Well, I'm trying to understand you're asking us to construe the claim more broadly than according to the district court, the scope that is provided. [00:05:02] Speaker 01: For claim one. [00:05:03] Speaker 01: Yes. [00:05:04] Speaker 01: And so I'll just point the court to exactly why I think that's appropriate. [00:05:08] Speaker 01: And starting with the abstract [00:05:10] Speaker 01: In the third line, it says, upon proper input by a user or at automatically after a timed interval. [00:05:19] Speaker 01: That is referring to the selectively capturing. [00:05:23] Speaker 04: I understand that the district court found that that determination of the timed interval is set by a user. [00:05:30] Speaker 04: So what evidence is there in the record? [00:05:37] Speaker 04: that would show that it's not selected by a user or does not have to be selected by a user. [00:05:42] Speaker 01: Sure. [00:05:42] Speaker 01: And that comes from the specification of the patent itself, Your Honor. [00:05:45] Speaker 01: There is no disclosure in this patent of a user setting that time interval. [00:05:52] Speaker 04: In footnote one of the district court's opinion, the court says that the patentee didn't come back with evidence explaining who set the time interval if it wasn't the user. [00:06:06] Speaker 04: So how do you respond to that? [00:06:08] Speaker 01: Well, first of all, there is evidence in the patent. [00:06:10] Speaker 01: But the patent itself, the specification, does not refer to a user setting the timer. [00:06:17] Speaker 04: That's true. [00:06:17] Speaker 04: But how else would it operate if it's not a user? [00:06:20] Speaker 04: I think that's what the district court was getting at, was saying that there was no other way that it could operate. [00:06:24] Speaker 01: Sure. [00:06:25] Speaker 01: I would look to figure one that says keyboard, mouse, timer, et cetera. [00:06:33] Speaker 01: And then I would look to column. [00:06:36] Speaker 01: 4, in which it says, and I meant line 23, included along the common bus are user inputs such as a keyboard slash mouse arrangement. [00:06:51] Speaker 01: It's not referring to the timer as a user input. [00:06:57] Speaker 01: And so for example... I understand. [00:06:59] Speaker 04: I agree with you, Ashley. [00:07:00] Speaker 04: I don't see anything in this spec that says that the user selects the timing. [00:07:04] Speaker 04: But I was wondering if you had any position on, if it's not the user that selects the timing, what would it be? [00:07:10] Speaker 04: Are you saying there's a preset time period? [00:07:13] Speaker 01: What is your position? [00:07:14] Speaker 01: Exactly correct. [00:07:15] Speaker 01: In column four at line 51 through 54, it talks about a timer being set, for example, to go off every two seconds. [00:07:24] Speaker 01: And if the timer were set that way, it could be pre-programmed. [00:07:27] Speaker 02: If it were set that way... Does it talk about it's being pre-programmed? [00:07:31] Speaker 01: The patent doesn't say pre-programmed, but the patent also doesn't say user involvement. [00:07:39] Speaker 02: Well, it says on column 5, line 20, it says, regardless of the mode selected, the user beams the image sensor until the resolved image is displayed. [00:07:51] Speaker 01: Correct. [00:07:51] Speaker 01: And I believe that's actually where the district court went wrong, Your Honor. [00:07:56] Speaker 01: And let me explain. [00:07:58] Speaker 01: The regardless of the mode's selected language refers not to the selectively capturing step, but to the aiming step. [00:08:06] Speaker 01: And if we go up to the lines just before that... Excuse me just a minute. [00:08:11] Speaker 04: Is that the aiming step, aiming an imaging apparatus, which is the first step of claim one? [00:08:17] Speaker 02: That's correct, Your Honor. [00:08:19] Speaker 02: But it can't be, because this is talking about until a resolved image is displayed. [00:08:24] Speaker 02: The aiming step occurs before there's a resolved image. [00:08:29] Speaker 01: Well, the resolved image can appear as a result of the aiming. [00:08:35] Speaker 01: But clearly, I believe that sentence refers to aiming. [00:08:37] Speaker 01: And the point I would like to address with the court, if you look at the preceding sentence, it draws the distinction right there between a user input of pressing a hotkey or an automatic input from the processor. [00:08:52] Speaker 01: And so our position is important. [00:08:55] Speaker 02: But you said that the automatic input [00:08:59] Speaker 02: doesn't have anything to do with quality. [00:09:02] Speaker 02: Correct. [00:09:04] Speaker 01: Correct. [00:09:04] Speaker 02: And it doesn't need to because the software... So your view is it takes a picture of a blurred image and then redos it until it gets a non-blurred image? [00:09:20] Speaker 02: Where does the specification describe that process? [00:09:24] Speaker 01: It describes it with reference to Figure 2. [00:09:27] Speaker 01: Where? [00:09:28] Speaker 01: If we go to, in figure two, if we go from the attempt decode block 135 to the decode data diamond 140, if it can't, oh I'm sorry, let me wait for you to get there, my apologies. [00:09:48] Speaker 01: If it doesn't decode, it goes to capture image to file and then back [00:09:55] Speaker 01: below the output message. [00:09:57] Speaker 02: Yeah, but I don't see that that refers to what you're talking about, which is if the image is blurred, it tries again. [00:10:05] Speaker 02: Where does the specification say that? [00:10:08] Speaker 02: That's a lawyer argument as to what Figure 2 shows. [00:10:13] Speaker 02: Where does the specification tell us that in the automatic mode, that if it gets a blurred image, it repeats? [00:10:20] Speaker 01: It doesn't say those exact words, but what it does say is in column four at line 51, if we take the example of a timer that is going off every two seconds, if we then match that to what is shown in figure two, let's just imagine that there's an input from the timer to the assert decode diamond. [00:10:43] Speaker 01: That then is captured into RAM, and the decoding software attempts to read that image. [00:10:52] Speaker 01: It fails. [00:10:54] Speaker 01: It goes to the capture image to file. [00:10:57] Speaker 01: In two seconds, there's going to be another frame taken, and that will simply continue until there's a result in it. [00:11:06] Speaker 02: But there's no description of that in the specification. [00:11:08] Speaker 02: No description of how that works and what the algorithm is for doing that. [00:11:14] Speaker 02: I mean, it's not there, right? [00:11:17] Speaker 01: Well, I disagree, Your Honor. [00:11:19] Speaker 01: I think that the flow diagram itself informs one of ordinary skill in this field as to what is necessary to accomplish that. [00:11:29] Speaker 02: Figure 2 doesn't say anything about a blurred image or an unresolved image, right? [00:11:34] Speaker 02: It says attempt to decode. [00:11:36] Speaker 02: It doesn't decode, so it goes back. [00:11:38] Speaker 02: It doesn't say anything about the quality of the image. [00:11:41] Speaker 01: It does not, but it has a very detailed disclosure of what's necessary to decode the image. [00:11:48] Speaker 01: And I think it's very apparent from the diagram that if it doesn't decode and you're in that automatic timer mode, you are going to continue to select those frames from the bus until you get one that the decoding software can recognize. [00:12:07] Speaker 01: And if you think about the practical application of this, [00:12:10] Speaker 01: There could be many different forms of the decoding software in terms of what resolution it would require. [00:12:19] Speaker 01: And so there has to be some way of, even if a user were to make the input based upon its perceived quality of the image, some way of dealing with an image that it couldn't read. [00:12:37] Speaker 05: Okay. [00:12:37] Speaker 05: Let's hear from the other side and we'll save you rebuttal time. [00:12:40] Speaker 01: Thank you, your honor. [00:12:41] Speaker 05: Mr. Benyakar. [00:12:54] Speaker 00: Mr. Benyakar. [00:12:55] Speaker 00: Yes, Benyakar. [00:12:56] Speaker 00: Thank you, your honor. [00:12:58] Speaker 00: May it please the court. [00:13:00] Speaker 00: I am David Benyakar and I represent the appellees. [00:13:03] Speaker 00: Several of the answers that you just heard from my opponent are the exact opposite of what their contentions were at the district court. [00:13:14] Speaker 00: Judge Dyke asked my opponent, well, does selectively mean quality? [00:13:19] Speaker 00: And he said no. [00:13:20] Speaker 00: But let me read you what he said in his claim construction brief. [00:13:24] Speaker 00: This is a quote at A450 to 451, what is important [00:13:30] Speaker 00: And how the patent defines this limitation, defines this selectively capturing limitation, is based on the quality condition of the image and what is selected for further decoding operations. [00:13:43] Speaker 00: Judge Thine, in her claim construction order, cited that admission twice. [00:13:48] Speaker 00: So there was no dispute before the district court that selectively means quality. [00:13:55] Speaker 00: I'd like to address one other thing. [00:13:58] Speaker 00: My opponent said, before I go on, he said something about the picture is taken every two seconds and it has nothing to do with quality. [00:14:08] Speaker 00: The specification teaches exactly the opposite. [00:14:11] Speaker 00: What the specification teaches is that you take a snapshot, and it's called a snapshot in the patent, and after you take a snapshot, [00:14:23] Speaker 00: That picture that the user took is automatically loaded into a barcode decoding program, which is the invention. [00:14:31] Speaker 00: If that the barcode is decoded, great. [00:14:35] Speaker 00: If it's not decoded, the user has to make another selection. [00:14:39] Speaker 00: The user decides, do I want to try again, or do I just want to save this in a file? [00:14:45] Speaker 04: What about in the mode where there's the predetermined time period? [00:14:50] Speaker 04: I don't see something in the specification that clearly says who selects that time period or how it's selected. [00:14:58] Speaker 00: So let me tell you the way the district court saw this and the way I see it, which is the patent says that in all modes of operation, including the auto timer mode, and this is at column five, lines 20 through 26, regardless of the mode selected, [00:15:19] Speaker 00: One of the modes is the auto timer mode. [00:15:21] Speaker 00: The other two modes are the hot key and the mouse. [00:15:24] Speaker 00: Regardless of the mode selected, the user aims the image sensor 16 at the object T until a resolved image is displayed in the monitor. [00:15:35] Speaker 04: Can I ask you something? [00:15:37] Speaker 04: I see that language. [00:15:39] Speaker 04: Why does that not read on? [00:15:41] Speaker 04: Okay, the first part is talking about [00:15:45] Speaker 04: until a resolved, well it says the user aims the image sensor. [00:15:49] Speaker 04: So then you've gotten claim one. [00:15:51] Speaker 04: It's a method claim. [00:15:52] Speaker 04: And it says aiming an imaging apparatus at a target of interest. [00:15:56] Speaker 04: And then the second thing you've got here is until a resolved image is displayed in the monitor. [00:16:02] Speaker 04: And then element two of claim one, or step two of claim one, is continually displaying a real-time image. [00:16:07] Speaker 04: And it's not until you get the third step that you're talking about selectively capturing. [00:16:12] Speaker 00: That's true, Your Honor. [00:16:13] Speaker 00: What this passage is saying [00:16:15] Speaker 00: Is that in all modes? [00:16:16] Speaker 00: So let me take a step back. [00:16:18] Speaker 00: What's disclosed as a kind of a conventional camera auto timer? [00:16:22] Speaker 00: We all know how those work. [00:16:23] Speaker 00: You can take a picture in real time, or you set the time in advance for the time you think that the image is going to look good. [00:16:29] Speaker 00: Volumes those in standard digital cameras. [00:16:32] Speaker 00: What this is saying is, I've disclosed several modes. [00:16:35] Speaker 00: Three, hotkey, mouse, auto timer. [00:16:38] Speaker 00: In all of those modes, you don't take the picture until the user sees a quality image. [00:16:45] Speaker 00: Now, even if, assume, arguing that the user doesn't set the amount of time. [00:16:51] Speaker 00: So it comes pre-programmed, five seconds, whatever. [00:16:54] Speaker 00: You can't set it. [00:16:55] Speaker 00: Well, you still have to decide when that timer starts. [00:17:00] Speaker 00: Because the specification says, and there was no dispute about this in the district court, what's critical is that you take a picture when there's a quality image. [00:17:10] Speaker 00: And what this is saying is, even in that on-up timer mode, [00:17:14] Speaker 00: You better set the auto timer to the time when you think you see a quality image, just like we all use auto timers. [00:17:24] Speaker 00: And like I said, it's kind of a red herring in terms of whether the user picks five seconds or 10 seconds or two seconds. [00:17:30] Speaker 00: Because whether it's pre-programmed or not, the user's still the one that has to decide, OK, start timing now. [00:17:37] Speaker 00: And so the user is still selecting the instant time for capturing. [00:17:40] Speaker 00: The user is still taking. [00:17:54] Speaker 00: So Mr. Lewick said, well, the district court ignored all the automatic embodiments in the patent. [00:18:04] Speaker 00: But that is, as both Judge Thine and Judge Andrews observed, a misreading of the specification. [00:18:13] Speaker 00: Every example that they cite refers to one of two things. [00:18:19] Speaker 00: Either the automatic loading of the picture the user takes [00:18:23] Speaker 00: into the barcode decoding program, which is the recorded invention here, or the auto timer, which the user has to set. [00:18:31] Speaker 00: There is no disclosure, and Judge Stein said this exactly, there is no disclosure in the patent of automatically assessing image quality and taking the picture based on it [00:18:42] Speaker 00: which is what HHP itself insisted at the district court is how you define something. [00:18:46] Speaker 04: Going back to your point about quality, where is that best described in your view in the specification? [00:18:52] Speaker 00: So it's in several places. [00:18:54] Speaker 00: So the patent starts by saying that you have a problem if you don't pick a quality image, because if you don't pick a quality image, the barcodes won't be decoded. [00:19:07] Speaker 00: They themselves explain this very well in the district court. [00:19:10] Speaker 00: So at the bottom of column 1, top of line column 2, it says, if the image is not properly resolved by the digital camera, you can't decode the barcode. [00:19:20] Speaker 00: This is a column 2, line 6 through 15. [00:19:24] Speaker 00: So it's talking about the prior art. [00:19:26] Speaker 00: So in the prior art, the user took the picture, and then the user had to separately load a barcode decoding program and then load the picture into the barcode decoding program. [00:19:36] Speaker 00: The user has to take a quality picture when it sees a properly resolved image on the monitor. [00:19:41] Speaker 00: The problem is, if the barcode can't be decoded, you have to go through this whole process again. [00:19:46] Speaker 00: You try to take another good picture, then you have to load the new picture into the barcode decoder. [00:19:50] Speaker 04: That's the priority. [00:19:51] Speaker 00: That's the priority. [00:19:52] Speaker 04: Sure. [00:19:53] Speaker 04: And so this invention was directed to not having to reload and reload and reload. [00:19:56] Speaker 00: Right. [00:19:57] Speaker 00: You still have to take the picture. [00:19:59] Speaker 00: The pen doesn't say anything about eliminating that step. [00:20:02] Speaker 00: So you have two steps. [00:20:03] Speaker 00: You have the user takes a picture, and then the user has to load in the prior art. [00:20:07] Speaker 00: The invention is the automatic loading. [00:20:10] Speaker 00: They want to read the claims so that it also automates the user taking the picture. [00:20:15] Speaker 00: There's no disclosure of that. [00:20:18] Speaker 00: But to further answer your question, so that's the background in columns 2, 1, 6 through 15. [00:20:25] Speaker 00: Then the critical step is. [00:20:28] Speaker 00: For the invention, what the invention purportedly solves is a column five lines 20 through 26. [00:20:33] Speaker 00: It says, regardless of the mode selected, the user aims the image sensor 16 at the object t until a resolved image is displayed in the monitor. [00:20:44] Speaker 00: So it's saying, OK, that part that I told you before about how you have to see a good picture, that's still true in my invention. [00:20:50] Speaker 00: You have to look and make sure you don't take the picture until it's good. [00:20:54] Speaker 00: But what I'm adding is the next sentence. [00:20:57] Speaker 00: Upon depression of the hotkey, the processor 22 proceeds automatically to blocks 130 and 135, which call for the capture and attempt to decode. [00:21:07] Speaker 04: But then there's the alternative mode, where the snapshot can be taken automatically by the processor after a predetermined time interval. [00:21:14] Speaker 00: That's true. [00:21:15] Speaker 00: But regardless of the mode, the user has to make sure that that picture is taken when there's a quality image displayed, or the patent teaches. [00:21:27] Speaker 00: You can't decode the barcode. [00:21:29] Speaker 04: Now, am I correct in understanding that if the claims are interpreted to require analog to digital conversion, that's both claims 1 and 22, then there's an alternative ground? [00:21:42] Speaker 00: Yes, that's correct, Your Honor. [00:21:43] Speaker 00: So the capturing step was construed by the district court to mean analog to digital conversion. [00:21:55] Speaker 00: construed it that way because it was undisputed that that was the plain meaning below, the technical meaning. [00:22:01] Speaker 00: And the district court said, HHP does not dispute. [00:22:05] Speaker 00: And they didn't. [00:22:06] Speaker 00: In fact, when they appealed Judge Stein's ruling to Judge Andrews, they proposed an alternative construction, a brand new construction of Judge Andrews, which agreed that capturing means analog to digital conversion. [00:22:20] Speaker 00: So yes, and there's the video capture card, which is the only device disclosed in the patent that performs analog to digital conversion. [00:22:29] Speaker 00: It's the only device disclosed in the patent that's associated with the function of capturing. [00:22:34] Speaker 04: Do you know where in the record there was the admission that the claims require analog to digital conversion in the selectively capturing step? [00:22:42] Speaker 00: Well, so no, no. [00:22:44] Speaker 00: The admission was that there was no dispute [00:22:49] Speaker 00: We put in evidence, dictionary definitions, technical definitions, that capture in the video arts means analog to digital conversion. [00:22:59] Speaker 00: They did not dispute it. [00:23:01] Speaker 04: They didn't dispute your evidence? [00:23:02] Speaker 00: Correct. [00:23:03] Speaker 00: And so the district court observed, Judge Fine observed, there's no dispute about this. [00:23:09] Speaker 00: And when they appealed to Judge Andrews, not only didn't they dispute it, they proposed a new construction which embraced it, that has analog to digital conversion. [00:23:19] Speaker 00: So there's no dispute about this below. [00:23:21] Speaker 00: In addition, the only device associated with capturing in the patent is a device called a video capture card. [00:23:33] Speaker 00: It's the only device that associates with the function of capturing. [00:23:36] Speaker 00: And they agree in their briefs that the function of that card is analog to digital. [00:23:41] Speaker 04: I understand what you're saying in terms of claim 22, which is a means plus function claim. [00:23:46] Speaker 04: So that makes a little more sense in that context. [00:23:49] Speaker 04: What's the basis for reading analog to digital converting into a method claim or reading that structure into the method claim one? [00:23:56] Speaker 00: So we are not necessarily reading the quote unquote video capture card into claim one. [00:24:03] Speaker 00: What we're saying is capture has a plain meaning in the technical arts, in the video arts, in the imaging arts. [00:24:11] Speaker 00: We have an expert declaration to that effect. [00:24:13] Speaker 00: There are technical dictionaries that [00:24:17] Speaker 00: that were submitted as evidence in the district court that shows that in the video warrants, capture means analog to digital conversion. [00:24:25] Speaker 04: And so the position is even if there is some earlier analog to digital conversion that occurs for the displaying staff, there also has to be analog to digital conversion for the capturing staff. [00:24:34] Speaker 00: That is exactly how these video capture courts worked. [00:24:40] Speaker 00: So what you don't see in their blue brief, but there's extensive record evidence below that I could cite to you, is [00:24:46] Speaker 00: These video capture cards were known devices, Your Honor. [00:24:50] Speaker 00: The patent says twice. [00:24:52] Speaker 00: I'm not going to tell you the details about how it works, because they're known. [00:24:55] Speaker 00: So look in the art. [00:24:56] Speaker 00: So we looked in the art. [00:24:58] Speaker 00: Our expert submitted a declaration with a reference to a technical article that did a review of 18 different commercially available video capture cards in November of 1994. [00:25:10] Speaker 00: That article says on its face, all of these cards [00:25:16] Speaker 00: do two different kinds of conversions, one on video and a different kind of analog to digital conversion on still images, the pictures that the users take. [00:25:25] Speaker 00: The still images are a different digital format and they're a higher quality format. [00:25:29] Speaker 00: And the article says on its face, please don't confuse the two. [00:25:32] Speaker 00: They're different. [00:25:33] Speaker 04: What if a month after this application was filed, there was a new type of capturing card that didn't have an angel on to digital converter? [00:25:45] Speaker 04: So you're saying that because at the time that the patent was filed and saw it, there was everything we've had, all the capture cards had an analog digital converter, so therefore the claim should be interpreted narrowly to always include analog to digital conversion? [00:26:00] Speaker 00: No. [00:26:01] Speaker 00: The definition of a video capture card is a device that does analog to digital conversion. [00:26:06] Speaker 00: There are dictionary definitions in the record. [00:26:09] Speaker 00: In addition to the definition of capture, what a video capture card is by definition [00:26:15] Speaker 00: a device that does analog to digital conversion. [00:26:27] Speaker 00: So we have various dictionary definitions at A581, which is the definition of just plain capturing. [00:26:35] Speaker 00: And then at 656 through 659, there are different dictionary definitions of capture card and video capture device. [00:26:44] Speaker 00: The definition of a video capture card is an expansion board that converts analog video signals to digital form. [00:26:53] Speaker 00: So if it doesn't do that, it's not a video capture card. [00:26:56] Speaker 00: That's the definition of a video capture card. [00:27:00] Speaker 00: And there's no dispute here, Your Honor, that the only function associated with the video capture card in this patent is analog to digital conversion. [00:27:10] Speaker 00: So the plain meaning of capturing is analog to digital conversion. [00:27:14] Speaker 00: patent discloses a video capture card, the only function of which is to do analog to digital conversion. [00:27:23] Speaker 00: That should, in our view, end the matter in terms of construing capturing. [00:27:27] Speaker 00: And that's what Judge Thine found. [00:27:29] Speaker 00: She said there's no dispute that capturing means analog to digital conversion. [00:27:33] Speaker 00: There's no dispute that the video capture card in the patent only performs analog to digital conversion. [00:27:39] Speaker 00: And the video capture card is the only [00:27:42] Speaker 00: The vice in the patent that's associated with the function of capturing, case closed. [00:27:47] Speaker 00: And we believe case closed on that as well. [00:27:53] Speaker 00: And the only, and Judge Fine observed this, although they have some conclusory statements in their contentions about how a single image is converted into digital, [00:28:08] Speaker 00: They don't say that that's the selected image. [00:28:10] Speaker 00: When you look at their contentions on what happens to the image that's selected, that's designated for attempted decoding, which was their previously rejected construction of capturing. [00:28:22] Speaker 00: And Judge Fine observed that in her claim construction order as well. [00:28:25] Speaker 04: What do you think processing means? [00:28:28] Speaker 00: So processing... In the context of this claim, of course. [00:28:36] Speaker 00: So in the context of the processing means, there's no way to tell what processing means. [00:28:42] Speaker 00: It could be any number of things. [00:28:44] Speaker 00: It could be the conversion of the image to analog that's done by device 14. [00:28:51] Speaker 00: It could be the analog to digital conversion that's done by the video capture card. [00:28:56] Speaker 00: It could be one of any number of the types of barcode decoding that's done. [00:29:03] Speaker 00: There's no way to know. [00:29:06] Speaker 00: proceeded on this before Judge Thine. [00:29:09] Speaker 00: They didn't even offer a construction of what processing means. [00:29:13] Speaker 00: They relied on a misreading of this court's cat's decision to say, oh, well, you don't need it as long as you disclose a general purpose computer. [00:29:19] Speaker 04: Well, actually, cat says that you have to first interpret processing and then determine whether that's a specialized function or not. [00:29:26] Speaker 04: Yes, correct. [00:29:28] Speaker 04: But even in that case, this court remanded for a determination of what processing means. [00:29:33] Speaker 00: Yes. [00:29:34] Speaker 00: So when they appealed that indefiniteness ruling to Judge Andrews, Judge Andrews looked at the court's catch decision. [00:29:45] Speaker 00: He saw that we said there's no way to know what processing is, and they didn't order. [00:29:49] Speaker 00: They didn't even offer a deconstruction. [00:29:51] Speaker 00: So Judge Andrews then ordered them to tell him what your position is of what processing means. [00:29:57] Speaker 00: And their answer was, you know, [00:30:00] Speaker 00: coordinate the movement of image data by sending commands to the different components. [00:30:05] Speaker 00: There's just no claim construction canon that gets you there. [00:30:09] Speaker 00: That function isn't even described in the patent, much less linked to any device, clearly linked. [00:30:17] Speaker 00: They don't even show any clear linking between the function of coordinating the movement. [00:30:21] Speaker 02: But I would have thought you would say that if that is the function, that [00:30:25] Speaker 02: Under cats, that's not something that's done by a general purpose computer that requires special programming. [00:30:31] Speaker 00: We do say that as well. [00:30:32] Speaker 00: In fact, it cannot be. [00:30:33] Speaker 00: It cannot be done by a general purpose computer because look at the arrows that they point to as reflecting that. [00:30:43] Speaker 00: If you look at the arrows that they point to in figure two and they say, this shows the coordination of the movement. [00:31:01] Speaker 00: They show seven arrows in figure two, and one of the arrows is between the assert to code and the capture frame into RAM. [00:31:10] Speaker 00: That's the invention. [00:31:11] Speaker 00: That's the reported invention. [00:31:13] Speaker 00: You take a picture, and you automatically load it into RAM. [00:31:17] Speaker 00: How can that possibly have been done by a general purpose computer when that's the very invention? [00:31:25] Speaker 05: OK, to move on. [00:31:26] Speaker 00: Thank you very much. [00:31:28] Speaker 05: Thank you. [00:31:28] Speaker 05: And would you add? [00:31:31] Speaker 05: Another four minutes to the rebuttal since we've run over. [00:31:34] Speaker 01: I'd like to start with the capture step and the court's reading of analog to digital into claim one. [00:31:51] Speaker 01: Analog to digital conversion appears only once in the patent beginning at the bottom of column four. [00:31:58] Speaker 01: It relates to the continuously displaying step, not the selectively capturing step. [00:32:04] Speaker 01: And the specification makes that very clear. [00:32:08] Speaker 01: If we go to line 64, the image of the target is then converted into analog electrical signals which are transmitted to the frame grabber [00:32:20] Speaker 01: having circuitry to perform the analog to digital conversion to provide an array of pixels as defined by default parameters, which is displayed as a continuous video signal, 120. [00:32:34] Speaker 01: And if we go to figure two, we can very clearly see that everything having to do with selective capture and loading into RAM and decoding takes place after [00:32:50] Speaker 01: the analog to digital step is completed. [00:32:54] Speaker 01: In other words, the frame is taken off of the continuous digital signal and placed into RAM. [00:33:02] Speaker 01: HHP never conceded this. [00:33:04] Speaker 01: The district court was in error to say so, and I would direct the court to the appendix at page 463, which is [00:33:17] Speaker 01: HHP's claim construction brief below which addresses specifically the term capturing and states Amazon's proposed construction for capturing quote converting the live analog video signal into a single digital frame is not the selective capturing in the claim limitation. [00:33:41] Speaker 01: Amazon is pointing to the wrong operation. [00:33:44] Speaker 01: That has been our position all the way through [00:33:47] Speaker 01: It remains our position today and it is the position that is consistent with the description. [00:33:53] Speaker 04: Claim 22 is a means plus function claim. [00:33:56] Speaker 04: What do you contend is the corresponding structure there for the selected image capture of means? [00:34:06] Speaker 01: Sure. [00:34:07] Speaker 01: I would point the court, first of all, I believe this does fall within the exception of cats because there is clear linking to what processing is... That's a different question. [00:34:16] Speaker 04: I was asking about the image capture means. [00:34:20] Speaker 01: The image capture means was found in the court's claim construction. [00:34:25] Speaker 01: The capture means is taking the frame off of the bus. [00:34:32] Speaker 04: That's the function. [00:34:32] Speaker 01: What's the structure? [00:34:43] Speaker 01: The structure for the capture means is the microprocessor, in our view, executing the instruction from either an user input or an automatic input, as shown in figure one. [00:34:58] Speaker 01: If we look at block, I believe it's... 22. [00:35:03] Speaker 01: Yes, block 22, and specifically block 34. [00:35:08] Speaker 01: In conjunction with the microprocessor, the district court interpreted capture as requiring the analog to digital conversion. [00:35:18] Speaker 01: And that's plainly incorrect because the specification never describes such an operation. [00:35:25] Speaker 01: The analog to digital, council said that it goes back and performs the analog to digital conversion again. [00:35:31] Speaker 01: That is nowhere in the patent. [00:35:33] Speaker 01: and they make the assertion that it's the video capture card that does that. [00:35:39] Speaker 01: Maybe a video capture card that you buy off the shelf does it or doesn't do it, but that's not how the patent describes the operation taking place. [00:35:54] Speaker 01: And so our proposed construction is designating [00:36:02] Speaker 01: a real-time image for attempted decoding based upon a condition and placing it into RAM. [00:36:10] Speaker 01: I think that gives the claim the correct scope. [00:36:13] Speaker 01: It doesn't limit the claim to a user. [00:36:15] Speaker 01: It accommodates for user or automatic input. [00:36:19] Speaker 01: And it doesn't put the analog to digital into claim one. [00:36:23] Speaker 01: With respect to the processing means, which was addressed before, [00:36:29] Speaker 01: The court can look to the top of column four where we disclose a general purpose microprocessor, number 22 in figure one, and then what is that describes what it is for. [00:36:43] Speaker 01: It is for receiving, outputting, and processing exactly like it was determined in CATS, where the district court, or excuse me, this panel reversed the district court's interpretation of seven claims [00:36:59] Speaker 01: very much parallel type of language in the claim, general processing, sent that back to the district court for, as you noted, Your Honor, further delineation of what processing means meant. [00:37:13] Speaker 01: The district court then properly interpreted that to be a general purpose computer. [00:37:20] Speaker 01: Now, I'd like to also just briefly address the summary judgment. [00:37:25] Speaker 01: After the district court interpreted claim one as requiring user involvement in selecting the frame to be captured, it then resolved factual issues against HHP in finding that user involvement based upon looking at a displayed image was not sufficient to meet the claim language. [00:37:48] Speaker 01: We believe there are three errors here. [00:37:51] Speaker 01: If you go back to claim one, clearly automatic, [00:37:55] Speaker 01: or user-based selection to. [00:37:58] Speaker 01: We think that the microprocessor is a sufficient description under CATS with the general processing means that are disclosed. [00:38:10] Speaker 01: If not, there is additional disclosure in the specification with the software routine in the flow diagram, figure two, and third, the court. [00:38:21] Speaker 01: improperly resolved factual inferences against HHP on summary judgment. [00:38:27] Speaker 01: Any one of those errors requires a remand. [00:38:31] Speaker 01: We believe all three errors warrant reversal. [00:38:34] Speaker 01: If there are no further questions, I'll thank you. [00:38:38] Speaker 05: Okay, thank you. [00:38:40] Speaker 05: Let's see, Mr. Benyakar, do you need a minute to respond on the summary judgment aspect, which wasn't raised? [00:38:52] Speaker 05: Very briefly. [00:38:54] Speaker 00: The district court's construction correctly requires that just as the user does when they take a picture, the user aims the camera based on the display, snaps the picture, [00:39:21] Speaker 00: the instant time they choose. [00:39:23] Speaker 00: There is no dispute here that the accused apps do not do that. [00:39:28] Speaker 00: They prepared a technology tutorial video which shows, in their view, how the apps work. [00:39:36] Speaker 00: Users only aim. [00:39:37] Speaker 00: They can't take a picture. [00:39:40] Speaker 00: That's their video about how the accused apps work. [00:39:44] Speaker 00: In addition, when you look at their contentions, their infringement contentions, the ones that they're relying on here [00:39:50] Speaker 00: As Judge Thine said, there's no dispute based on your contentions that there's no infringement. [00:39:56] Speaker 00: Look at the contentions that they cite in their brief. [00:39:58] Speaker 00: This is the user action they rely on. [00:40:01] Speaker 00: The user selectively captures the barcode by putting it within the measurement region of the camera and adjusting the image so that the barcode is appropriately aligned and reasonably is stable. [00:40:13] Speaker 00: That's aiming. [00:40:14] Speaker 00: You're holding it steady and keeping it stable. [00:40:17] Speaker 00: Now, what do their contentions say the apps do? [00:40:20] Speaker 00: This is an A1535. [00:40:21] Speaker 05: Well, I think that we're repeating ourselves. [00:40:26] Speaker 05: I want to be specific to the summary judgment point that was raised. [00:40:32] Speaker 00: So with respect to the issue of the district court resolve. [00:40:40] Speaker 05: As to whether there should be a trial of disputed facts. [00:40:44] Speaker 00: There are no facts. [00:40:45] Speaker 00: There are no disputed facts, Your Honor. [00:40:47] Speaker 00: If you look at their contentions about how the accused apps work, there are no disputed facts. [00:40:53] Speaker 00: When we moved for summary judgment, we accepted these facts as true. [00:40:57] Speaker 00: We accept their contentions as true. [00:40:58] Speaker 00: We're not saying they are, but we accepted them as true for purposes of summary judgment. [00:41:03] Speaker 00: Their own contentions allege that it's the apps that select the instant time for capturing. [00:41:09] Speaker 00: There's no fact issue. [00:41:12] Speaker 00: Their contention says, [00:41:15] Speaker 00: The app establishes and applies criteria, its own criteria, that determine what images and or which portions of the images will be selected. [00:41:24] Speaker 00: The apps are doing that, designated for further detection, decoding, and storing. [00:41:29] Speaker 00: Their own contentions say it's not the user that's determining quality. [00:41:32] Speaker 00: Their contentions, A1535, numerous contentions that say the apps have criteria for establishing quality, the apps determine when the image is of sufficient quality, then the apps take the picture. [00:41:44] Speaker 00: That's not the construction. [00:41:46] Speaker 00: There was no issue of fact. [00:41:48] Speaker 05: Okay. [00:41:49] Speaker 05: Anything else that you need to raise? [00:41:52] Speaker 00: Thank you, Your Honor. [00:41:53] Speaker 05: Thank you. [00:41:54] Speaker 05: Thank you both. [00:41:55] Speaker 05: The case is taken under submission.