[00:00:06] Speaker 01: The next case for argument is 161402, in Ray Apple. [00:00:45] Speaker 00: Ready? [00:00:45] Speaker 02: I'm going to do that. [00:00:54] Speaker 02: May it please the court. [00:00:54] Speaker 02: My name is Bill Layen. [00:00:56] Speaker 02: Together with my partner, Dominic Massa, I represent Apple. [00:01:00] Speaker 02: Throughout these proceedings, the Patent Office identified claim construction as, and I quote, the principal issue. [00:01:06] Speaker 02: We agree. [00:01:08] Speaker 02: Claim construction in two respects is a critical issue on this appeal. [00:01:13] Speaker 02: And more specifically, the critical issue is whether the standard is the broadest reasonable interpretation or simply the broadest interpretation. [00:01:23] Speaker 02: And there are two. [00:01:24] Speaker 02: And so let me go immediately to the first, which is the two or more issue that's before you. [00:01:30] Speaker 02: The board is very narrowly focused on the word or in two or more, almost in isolation. [00:01:37] Speaker 02: But the word or has a meaning in context, and if I could take [00:01:41] Speaker 02: the panel to claim one of the patent. [00:01:44] Speaker 01: Just so we're clear, you agree that Nomura and Hollis both show distinguishing between use of a single input for scrolling and the use of two inputs for gesture, right? [00:02:01] Speaker 02: No, I don't think so, Your Honor. [00:02:03] Speaker 02: Nomura distinguishes two inputs as a gesture and says nothing about any other inputs at all. [00:02:11] Speaker 02: It's a map application, and for that reason, it makes some common sense that two inputs would be a gesture. [00:02:18] Speaker 02: It says it's silent as to the others, and the patent office has assumed that a scroll would be one. [00:02:25] Speaker 01: Are you arguing that under the patent office's claim construction that you win? [00:02:33] Speaker 01: No. [00:02:34] Speaker 02: If the patent office's claim construction is correct, we do not win. [00:02:38] Speaker 02: We, in order for us to win, we need to, on the two different issues, we need to convince you that our claim construction is correct. [00:02:47] Speaker 02: And in fact, under that claim construction, actually neither Nomura nor Hellas would satisfy the limitation of the claim and there'd be nothing before the patent office. [00:02:58] Speaker 02: And I think, Your Honor, the way we can best demonstrate to you that ours is correct is by looking at claim one. [00:03:04] Speaker 02: Because the two or more is in the context of claim one. [00:03:09] Speaker 02: And if you were to look at claim one, it begins a couple limitations above the two or more. [00:03:16] Speaker 02: And it begins with the method involving the receiving of, and I quote, one or more inputs. [00:03:23] Speaker 02: So the universe is one or more inputs. [00:03:26] Speaker 02: Then the claims take it to two critical steps. [00:03:29] Speaker 02: And what it does is it divides the world, these one or more inputs, into two categories. [00:03:36] Speaker 02: And the purpose of the two categories is [00:03:38] Speaker 02: to determine, do you have a scroll or a gesture? [00:03:42] Speaker 02: And everything falls into one of the two categories. [00:03:46] Speaker 02: You're a scroll or a gesture. [00:03:48] Speaker 02: And then the claim says, here's how you determine that. [00:03:52] Speaker 02: You distinguish between a single input or two or more. [00:03:57] Speaker 02: Actually, it says a single input and two or more. [00:04:00] Speaker 02: So the structure of the claim, and there's a little bit more that I'll get to in a second, is to define [00:04:06] Speaker 02: the universe of all the potential input. [00:04:08] Speaker 01: If the prior art distinguishes between one and two, as between scrolling and gesture, what is the significance of the treatment of a third input, one way or the other? [00:04:22] Speaker 02: Your Honor, the significance is that if the patent claims are read and the specifications read, and you particularly consider the purpose of the invention, the purpose is to distinguish between one input and everything else. [00:04:36] Speaker 02: And that's the way the claim is structured. [00:04:38] Speaker 01: Well, that's what you say, but what is the benefit of distinguishing between, if you can distinguish between one and two, what's the additional benefit of distinguishing between one and three? [00:04:53] Speaker 02: It's a very good question, Your Honor, and the specification answers that at column one. [00:04:57] Speaker 02: And I think this is a place where it's important to recognize that. [00:05:00] Speaker 02: But what's the benefit? [00:05:02] Speaker 02: The benefit is that, and if I could go to column one, [00:05:06] Speaker 02: at line 48 to 52. [00:05:08] Speaker 02: What the patent says, and it's important, I think, to go back in time to the time of the invention, January 2007. [00:05:15] Speaker 02: And the patent says, here's the benefit. [00:05:20] Speaker 02: We're now dealing with devices like smartphone. [00:05:23] Speaker 02: Now, this was filed just before the iPhone was publicly announced. [00:05:28] Speaker 02: And unlike prior devices, the specification says, and again, I'm quoting, there is a limited display size [00:05:36] Speaker 02: user interface software, API interface, and our processing capability. [00:05:42] Speaker 02: So the patent explicitly says for these smaller devices, there is less device space. [00:05:48] Speaker 02: There are constraints in hardware. [00:05:51] Speaker 02: There are constraints in software. [00:05:53] Speaker 02: And then it goes on to say, as a consequence for these devices, and again, I'm quoting from column one, there is difficulty interpreting the various types of user inputs [00:06:06] Speaker 02: and providing the intended functionality. [00:06:08] Speaker 02: So the algorithm, or the method to describe, which divides the world into one input on the one hand, all other inputs on the other, gives you a very simple, very elegant algorithm and method to distinguish between two. [00:06:25] Speaker 01: But I'm not sure that really answers my question. [00:06:27] Speaker 01: If the prior can distinguish between one and two, what's the additional benefit of being able to distinguish between one and three? [00:06:35] Speaker 02: It is the simplicity of the algorithm that lets you distinguish between one, which is a scroll, and two, three, four, five, which can be a gesture. [00:06:47] Speaker 02: And the benefit of that is that it allows you to take one input and put it in one category and get the benefit of that, and take the others, recognize them all as gestures, and put them in the second category. [00:07:05] Speaker 02: Your Honor, this is the key dispute between us on claim construction. [00:07:09] Speaker 02: And I don't think the Patent Office's claim construction fits within the claim or as the specification describes the invention. [00:07:18] Speaker 02: Let me say why. [00:07:19] Speaker 00: I'd like to ask you some questions about the specification. [00:07:22] Speaker 00: I see where you're pointing to in column one. [00:07:25] Speaker 00: But some of that is not so explicit in column one. [00:07:29] Speaker 00: I don't see anything in here. [00:07:31] Speaker 00: that says specifically wraps it up with a bow as you did and saying you want to have this simple rule. [00:07:37] Speaker 00: So am I missing something? [00:07:41] Speaker 00: For example, this section here that you're referring to, column one, lines 48 through 55, doesn't even refer to scrolling or gesturing. [00:07:51] Speaker 02: Actually scrolling or gesturing is immediately the paragraph above. [00:07:55] Speaker 00: So I think that if we go to that column... Am I correct though in understanding there's other types of [00:08:02] Speaker 00: things that are being disclosed in this specification, for example, animation somehow. [00:08:07] Speaker 00: There's several different embodiments in here, right? [00:08:09] Speaker 00: There's things about bouncing and animation. [00:08:13] Speaker 02: Yeah, there's rubber banding which I'll come through if there's time. [00:08:16] Speaker 02: There is animation which is not relevant to this appeal. [00:08:19] Speaker 02: But if you look at column one, immediately before the portion that I identified, there's a discussion of scrolling and gesturing. [00:08:28] Speaker 02: And this is important because what the patent is saying is [00:08:32] Speaker 02: This is something that you want to do. [00:08:34] Speaker 02: You want to be able to recognize a scroll. [00:08:36] Speaker 01: You want to be able to recognize a gesture. [00:08:38] Speaker 01: Well, it certainly says that, but it doesn't suggest that it's important to distinguish between one and three and one and four. [00:08:48] Speaker 01: What it talks about is being able to distinguish between a scroll and a gesture. [00:08:53] Speaker 01: And that purpose of the invention is satisfied if you can distinguish between one and two, isn't it? [00:08:59] Speaker 02: Yeah. [00:09:00] Speaker 02: Your Honor, I'm with you all the way up to the conclusion. [00:09:03] Speaker 02: And the conclusion, which is the invention is satisfied by distinguishing between one and two, would not be correct. [00:09:10] Speaker 02: And I think if I can go back to Judge Stoll's question, which in part answered yours, is that if you look at the specification that follows when you get to the specific description of the invention itself, it tells us a couple of very important things. [00:09:26] Speaker 02: Figure one helps amplify, and actually figure one describes what's happening in the claim. [00:09:31] Speaker 02: But the specification consistently describes a single touch as a scroll. [00:09:37] Speaker 02: It also describes a single touch as having an angle, a singular angle, and it also describes it as having a singular speed. [00:09:47] Speaker 02: So to go to the conclusion of Judge Dyck's question, the specification tells you when you have a singular angle, [00:09:56] Speaker 02: or you have a singular speed. [00:09:58] Speaker 02: We want to know that it's a scroll. [00:10:01] Speaker 02: And it is. [00:10:02] Speaker 02: And then it says, if you have two or more points to go to Judge Dyck's question, they are gestures. [00:10:09] Speaker 02: And there are a dozen times where the phrase two or more gestures, two or more input points is used to describe a gesture. [00:10:18] Speaker 02: And then there's more. [00:10:19] Speaker 02: In both the claims and the specification, the word two or more, or the phrase two or more [00:10:26] Speaker 02: is used interchangeably with a plurality. [00:10:29] Speaker 00: What about column 12 lines, I think it's 29 to 34, where it says in certain bodyments, a user input in the form of two or more points is received by the display device. [00:10:44] Speaker 00: And then it says a multi-touch driver receives the user input, and then the Windows server sees the event and determines whether the event object is a gesture. [00:10:54] Speaker 00: Why in any circumstance [00:10:55] Speaker 00: If it receives two or more, would it determine if it's a gesture if two or more is always a gesture? [00:11:00] Speaker 02: Your Honor, this portion of the specification at the bottom of column 12 and the top of column 13 is after the point where there's been a recognition of whether it's a single input point or multiple input points. [00:11:14] Speaker 02: And you're moving to doing the event object. [00:11:16] Speaker 02: So if I can bring you back to figure one, I think I can demonstrate that if you look at figure one, [00:11:25] Speaker 02: After you hit the third step and you move to the third, fourth, and fifth where you create the event object, that's what's being discussed at those portions of the specification, which they would have to discuss in order to provide a disclosure that would be sufficient. [00:11:46] Speaker 01: And how does that suggest that distinguishing between one and two isn't sufficient to satisfy the claim? [00:11:52] Speaker 01: That's what seems to be missing here. [00:11:56] Speaker 02: If the claim is read, and you look at two or more, and the specification is read, which consistently distinguishes between one and two or more, and then we look at the testimony of the three expert witnesses who testified unanimously, and we think about what's at column one. [00:12:17] Speaker 02: You're looking for a simple, elegant, efficient, and effective method [00:12:23] Speaker 02: And the simple, elegant, effective, and efficient method is, if it's one, we put it in category A. If it's in two, you put it in category B. An algorithm that would satisfy your hypothetical, which would be one touch scroll, two touches gesture, three touches scroll, four touches gesture, would neither be simple nor elegant [00:12:50] Speaker 02: know what it satisfied the real purposes of this claim. [00:12:53] Speaker 01: And that's why... I don't know whether Judge Still has more questions on this, but I did want to get to rubber banding. [00:13:00] Speaker 00: I just wanted to ask you, in figure one, in step 100, it says the user input can be in the form of an input key button, wheel, touch, or other means of interacting with the device. [00:13:11] Speaker 00: So, I mean, it seems as if figure one maybe isn't complete, because not all of those things would be a scroll or a gesture. [00:13:18] Speaker 02: If you took figure one, I think receiving a user input, and if we set aside animations for a second and you look at claim one, you have the universe, which is one or more inputs. [00:13:31] Speaker 02: That's the universe. [00:13:32] Speaker 02: And then it says we divide that universe into either a single input or two or more. [00:13:38] Speaker 02: So if you receive that user input at 102, that's the first part of the claim that I was identifying. [00:13:44] Speaker 02: Then you're determining, you're creating an event object in response to the user input. [00:13:49] Speaker 02: So that's where the determining and distinguishing step become important. [00:13:53] Speaker 02: You determine whether you need a scroll event object or a gesture event object. [00:13:59] Speaker 02: How do you determine that? [00:14:00] Speaker 02: You determine it, the claim tells us, by distinguishing one and two. [00:14:05] Speaker 02: And this is where I think the narrow focus on war by the patent office, two or more, is a problem because the claim actually says one input and two or more. [00:14:15] Speaker 02: That's the phrase. [00:14:18] Speaker 02: For me, answers Judge Dyke's question is on the one hand, one. [00:14:21] Speaker 02: And on the other hand, it's two or more. [00:14:23] Speaker 02: It's two, three, four, five. [00:14:26] Speaker 02: And I think if I were to take the example that I started to answer Judge Dyke's question with, which is if you had one was a scroll, two was a gesture, three was a scroll, four was a gesture, five was a scroll, that's what the PTO's construction would allow you to have. [00:14:48] Speaker 02: If it's one, it's a scroll. [00:14:50] Speaker 02: If it's anything more than one, it's a gesture. [00:14:53] Speaker 02: That fits with what the claim says, the specification says, and the purpose of the adventure. [00:14:59] Speaker 02: I'll answer the question of rubber banding. [00:15:01] Speaker 02: Okay. [00:15:02] Speaker 01: I think your argument has forced that rubber banding suggests snap back rather than snapping forward. [00:15:08] Speaker 01: So let's assume that you're correct about that. [00:15:11] Speaker 01: Okay? [00:15:12] Speaker 01: On the other hand, if you look at the examiner's answer, which is what the board relied on here, the examiner discusses LERA and explicitly states this is at 843 and 844 of the appendix, specifically says that LERA teaches situation where if you go beyond the edge of the column and you stop and it snaps back. [00:15:42] Speaker 01: So why isn't that analysis by the examiner an alternative ground here for finding obviousness as to this limitation over Lyra? [00:15:57] Speaker 02: For three reasons. [00:16:00] Speaker 02: One is, and the first may be not a predicate of your question, the examiner started with a proposition that rubber banding under the claims [00:16:10] Speaker 02: doesn't have any... Well, put that aside. [00:16:14] Speaker 01: Because he goes on and pretty clearly talks about the fact that Lear, if you go beyond the column and you push up, put up your, pick up your finger even as so far as he hasn't gone too far, it'll snap back. [00:16:28] Speaker 02: That's not what's described in the claim, and the PTO actually has conceded that. [00:16:34] Speaker 02: Look, if you take our interpretation, which you need to go in this direction, then when you go too far, you get [00:16:41] Speaker 02: Let's go as figure 6a and 6b. [00:16:44] Speaker 02: If you go in this direction and you've gone beyond the document, you'll see some white space, then you'll snap back. [00:16:54] Speaker 02: That's not what Lyra does. [00:16:56] Speaker 02: Lyra snaps you forward. [00:16:58] Speaker 01: No, no, no. [00:16:59] Speaker 01: It also snaps back. [00:17:00] Speaker 01: I mean, that's absolutely clear from [00:17:03] Speaker 01: from Lira itself and from the examiner's answer. [00:17:05] Speaker 01: You are correct that if you go too far, it will snap forward. [00:17:09] Speaker 01: But if you don't go too far, even if you move your finger over the edge of the column in Lira and then remove your finger, it snaps back, correct? [00:17:17] Speaker 02: Your Honor, that's not what the rubber banding is described. [00:17:20] Speaker 01: But that's correct, but it snaps back, right? [00:17:23] Speaker 02: If you're part way through the document, [00:17:26] Speaker 02: it will come back some. [00:17:27] Speaker 02: But not even the PTO says that that satisfies in the briefs here. [00:17:31] Speaker 01: But just to be clear, we're on the same page, so to speak, as to what there are teachers. [00:17:36] Speaker 01: Lear teaches that if you go beyond the edge of the column, and the examiner says edge of the column satisfies the claim limitation of edge, if you go beyond the edge of the column, as long as you don't go too far beyond the edge of the column, it will snap back rather than snap forward. [00:17:55] Speaker 02: I don't think I agree with the predicate, because the rubber banding that's described in the 915 patent is you're scrolling beyond the display edge of the device, of the document, and then it snaps back. [00:18:11] Speaker 02: And in Lyra, if you scroll beyond the edge of the document, you snap forward. [00:18:17] Speaker 02: And we both agree with it. [00:18:19] Speaker 01: Take 844. [00:18:20] Speaker 01: The examiner says, when the user scrolling does not exceed the threshold, [00:18:24] Speaker 01: column is recentered and snapped back into alignment. [00:18:28] Speaker 01: So it does teach a snap back feature. [00:18:31] Speaker 02: And let me just get to the page because I think I know exactly what you're talking about. [00:18:35] Speaker 02: 844. [00:18:37] Speaker 01: And you're at? [00:18:43] Speaker 01: Right after the block quote. [00:18:46] Speaker 01: The sentence after the block quote. [00:18:49] Speaker 01: Because when music scrolling does not exceed the threshold, the column is re-centered and snapped back into alignment. [00:18:55] Speaker 02: Yeah, Your Honor, we're talking about two different things. [00:18:58] Speaker 02: They're talking about something that is aligning things with the display window. [00:19:03] Speaker 02: So there is part of Lyra that when you're scrolling vertically and there's wobbling in a horizontal direction, it will come back. [00:19:13] Speaker 01: I understand the wobbling thing, but this isn't talking about the wobbling. [00:19:16] Speaker 02: Yeah, I think it actually is, Your Honor. [00:19:18] Speaker 02: When the user scrolling does not exceed the threshold, the column is re-centered. [00:19:24] Speaker 02: There are two things here that are being discussed in these two paragraphs. [00:19:30] Speaker 02: One is this horizontal balancing. [00:19:33] Speaker 02: But if that's not what you're talking about, then the key here is when the user scrolling does not exceed the threshold. [00:19:41] Speaker 01: Except my premise, and I understand you disagree with it, but except my premise that LERA shows snapping back when you go beyond the edge of the column and as long as you don't go too far, you lift your finger up and it snaps back. [00:19:55] Speaker 01: Why wouldn't that be a disclosure of this feature if in fact it teaches that? [00:20:00] Speaker 01: I understand you disagree that it teaches that. [00:20:03] Speaker 02: If LERA or any prior art disposed that when you went beyond the document and you were beyond the threshold and you snap back, [00:20:11] Speaker 02: then that would be a problem for us. [00:20:15] Speaker 02: The best indication that that's not what the examiner is saying is that if you go on to what the examiner says in the next few pages, he says, well, yes, Leora goes in the direction of the document, and it snaps forward, but it would have been obvious to want to board a skill in the art to modify that to snap back. [00:20:34] Speaker 02: And there's nothing cited for that proposition. [00:20:39] Speaker 02: The examiner was reading Lear in the same manner that you and I have been discussing or you've described. [00:20:45] Speaker 02: He never would have had to say that. [00:20:46] Speaker 02: It would have been, it satisfies this limitation. [00:20:50] Speaker 02: And I'm well over my time. [00:20:51] Speaker 01: Thank you. [00:20:52] Speaker 01: Will we stir two minutes of rebuttal? [00:21:02] Speaker 03: May it please the court. [00:21:03] Speaker 03: So the concept in claim one, the method claim one, [00:21:07] Speaker 03: of associating user input. [00:21:10] Speaker 01: Could you maybe address the rubber banding point before we forget about... Sure. [00:21:16] Speaker 01: So the examiner cited to the portion... Let's assume that we reject the board's construction, which says that rubber banding includes snapping forward, and that's wrong. [00:21:26] Speaker 01: It has to snap back. [00:21:28] Speaker 01: Does Lira show snapping [00:21:30] Speaker 03: It does, Your Honor, and Your Honor was on the relevant portion of the examiner's answer where he makes the observations and makes the findings about LERA at 843 to 844. [00:21:42] Speaker 03: And this particular analysis of LERA was adopted expressly by the board in its rehearing decision at appendix 19. [00:21:51] Speaker 03: And here the examiner is citing to a portion of LERA that is part of LERA's disclosure of what LERA terms of vertical alignment control. [00:21:59] Speaker 03: And that's at pages 476 to 477 of Lira, and figures 14A and 14B of Lira, where he's talking about it. [00:22:07] Speaker 03: And he actually has two sort of embodiments of vertical alignment control. [00:22:11] Speaker 03: The first one is the wobble, where the user is scrolling with a pen, a stylus in the particular embodiment, and it's moving down, it's moving vertically, but there's horizontal deviations. [00:22:21] Speaker 03: And what Lira teaches is we want to sort of account for that, keep the column aligned, and so we keep it centered. [00:22:28] Speaker 03: Then the second one is this idea of snapping back, whereas if the user were going to set a threshold, the user can set the threshold, turn it off. [00:22:37] Speaker 03: We're going to account for deviations in the user's horizontal or vertical, in this case, downwards, scrolling motion, left or right, and decide what it is that the user wants to do. [00:22:47] Speaker 03: And we're either going to snap it back or we're going to snap it to the side. [00:22:51] Speaker 03: So there at pages 843 to 844 and 842 as well, [00:22:57] Speaker 03: The examiner is finding that Lyra teaches this idea of snapping back. [00:23:02] Speaker 03: And perhaps even more importantly, to the extent that there's any debate about the particular direction that Lyra is moving his content, depending on whether thresholds are exceeded or not, the examiner made the observation, the finding at 845 to 46, that sort of the direction that this content is going to move would have been well within the ordinary skill and the art to pick. [00:23:22] Speaker 03: So Lyra both expressly [00:23:25] Speaker 03: teaches the rubber banding concept reflecting the claim to, as well as made sort of the additional finding that it would have been with the artisan skill sort of account for that. [00:23:33] Speaker 03: And it's sensical. [00:23:34] Speaker 03: I mean, as we pointed out in our brief, there's only so many ways that the content can move. [00:23:39] Speaker 03: We're as clearly directed at sort of the same problem that the rubber banding claim is directed to. [00:23:45] Speaker 03: This idea of these deviations in the scrolling direction are unwanted. [00:23:50] Speaker 03: And we have to figure out whether the user actually wants to do something with it. [00:23:53] Speaker 03: or whether or not he's just not paying attention. [00:23:56] Speaker 03: So that's what Lear was talking about at 476 to 477. [00:24:00] Speaker 03: So the rubber banding limitation is disclosed even under their interpretation, which, of course, we would disagree that the particular embodiment in the 915 patent, where it shows emails scrolling up and then snapping downward, actually limits this claim. [00:24:17] Speaker 03: But to the extent that this court feels like that is the proper limiting narrower construction [00:24:22] Speaker 03: Lira would meet it. [00:24:23] Speaker 03: And we discussed this in our brief expressly, starting at pages 51 and going on through 52 and 53. [00:24:34] Speaker 03: So if there are no further questions about rebanding, we'll turn to claim one. [00:24:38] Speaker 03: So the concept in claim one of associating user input numbers with particular operations on the screen is what Hillis and Nomura are, at some level, all about. [00:24:49] Speaker 03: Hillis and Nomura disclose other stuff. [00:24:52] Speaker 03: But Hillis and Omura are very clearly recognizing the same problem that my friend Mr. Lee directed you to in the 915 patent. [00:24:59] Speaker 03: This idea of increased functionality on user devices where they're using a touch screen. [00:25:07] Speaker 03: If we look at, for example, appendix page 540, which is in the Hillis patent, Hillis says at lines 59 to 61, [00:25:20] Speaker 03: in discussing the limitations of the prior art. [00:25:23] Speaker 03: He says, although the foregoing approaches will always enjoy some popularity, the present inventors have sought ways to improve the interface between human and computers. [00:25:35] Speaker 03: And his disclosure goes on. [00:25:36] Speaker 03: He's very clearly focused on this idea of we need to figure out, when a user puts his finger or fingers on the screen, what is it that they want us to do or not do? [00:25:48] Speaker 03: And at appendix 542, starting at roughly lines 49, when Hillis starts to get into what his invention actually is, he's making very clear, he says in reference to figure 2a, 2a shows a sequence to detect and analyze contact points, history, velocity, applied force, to recognize user application of predefined touch-based user gestures, and thereafter implement predetermined actions associated with the gesture. [00:26:14] Speaker 03: He's teaching exactly the same concept in response to exactly the same problem as the 915 pattern. [00:26:19] Speaker 03: Nomura is the same. [00:26:21] Speaker 03: Nomura, at appendix page 398, says, problem to be solved, providing an electric book that achieves a favorable human interface with functions such as rotate, zoom in, zoom out, scroll, et cetera, of a map image that are easy to use, [00:26:43] Speaker 03: and a mobile information device and information storage media used for these. [00:26:47] Speaker 03: And then Nomura goes on to describe, particularly at appendix page 408 to 409, paragraphs 49 to 53. [00:26:54] Speaker 03: And this is in response to an earlier question about, does Nomura teach scrolling in response to a single input? [00:27:00] Speaker 03: He most assuredly does. [00:27:01] Speaker 03: At paragraph 53, the text of which is on appendix page 409, he says in his last sentence, the operation details determination part 30 [00:27:10] Speaker 03: judges finger movement history detected by the finger movement detector of action of moving one finger as an input of a map score. [00:27:18] Speaker 03: This is exactly the same portion of Nomura that the examiner relied on and that the board approved. [00:27:25] Speaker 03: So I think under the reasonable interpretation that the PTO gave this claim, Hillis and Nomura meet it squarely. [00:27:33] Speaker 03: And in many ways, the disclosure of Hillis and the 915 patent are [00:27:38] Speaker 03: I don't want to say identical, but in pertinent ways, very much on point. [00:27:43] Speaker 03: Halis is clearly talking about this idea of you can have one input, and I want to scroll, and I can have fingertips using the plural. [00:27:52] Speaker 03: I want to do things like zoom. [00:27:54] Speaker 03: Now, he depicts it using a two-finger input at figure 1B. [00:27:58] Speaker 03: But that is akin to the 915, the 915 patent. [00:28:02] Speaker 03: It's all over the briefs, and we've heard it in the oral argument today. [00:28:06] Speaker 03: Two or more or plurality. [00:28:07] Speaker 03: But that doesn't shed any light on whether or not the particular recitation in Claim 1 requires all of the pluralities. [00:28:14] Speaker 03: It clearly encompasses where the single user input, which is all that's required by the method of Claim 1, is one finger or two. [00:28:22] Speaker 03: And the only examples we have of the 915 patent specification where a gesture, zooming, actually is invoked is using two fingers, which is exactly like Hillis. [00:28:32] Speaker 03: So the board's construction and the examiner's construction here is reasonable in light of that claim language, which uses the word or. [00:28:38] Speaker 03: They gave it the interpretation that this court has given very similar language in Schumer and the other cases that we've cited in our brief. [00:28:45] Speaker 03: And there's nothing in this patent that concretely says that that interpretation cannot be correct. [00:28:55] Speaker 03: If there are no further questions, I'll yield the remainder of my time. [00:29:06] Speaker 02: Let me address issues in the order that Mr. McManus did. [00:29:09] Speaker 02: So I'll go back to rubber banding because the PTO is talking about something different than what the claim requires. [00:29:17] Speaker 02: The claim requires, if you look at claim 16, this is one of the rubber banding claims, that the scrolling exceed the window edge. [00:29:29] Speaker 02: And what Mr. McManus has drawn your attention to on A843 at the bottom, [00:29:36] Speaker 02: And this is a portion that Judge Dyke and I discussed. [00:29:39] Speaker 02: If you look at the block quote, this is talking about a vertical alignment control. [00:29:45] Speaker 02: So this is when you're scrolling in the horizontal direction, and you have some wobbling of the document or the thing that's on the screen. [00:29:57] Speaker 02: And you want to be sure it stays within the window. [00:30:00] Speaker 02: That's why if you go to 844, at the end of the block quote, it says, [00:30:04] Speaker 02: when the user scrolling does not exceed the threshold. [00:30:09] Speaker 02: And that's the snapback portion you referred to. [00:30:12] Speaker 02: This is wholly different. [00:30:15] Speaker 02: In LERA, when you're scrolling in the horizontal direction and you go beyond the threshold, you snap forward. [00:30:21] Speaker 02: There's no dispute about that. [00:30:24] Speaker 02: In the 915 patent, when you go beyond the threshold, you snap back. [00:30:28] Speaker 02: That's why it's called rubber banding. [00:30:30] Speaker 02: That's why the patent office started with the issue that [00:30:34] Speaker 02: Judge, like you and I set aside, which is that rubber banding, as defined by the patent, has no directional meaning, and that's simply incorrect. [00:30:44] Speaker 02: If we say it has directional meaning, and we look at the claim, which is what we have to do, the claim says, when the scrolling region exceeds a window edge, then you snap back. [00:30:58] Speaker 02: Blair doesn't do that. [00:31:00] Speaker 02: That's why the examiner went and said, [00:31:02] Speaker 02: One of ordinary skill in the art would have modified it to snap back, but there's nothing to support that. [00:31:08] Speaker 02: If I then go to the substantive arguments that were made, as Mr. McManus made it, I think the first part of the argument was under their claim interpretation, Hillis and Nomura would satisfy the limitation. [00:31:22] Speaker 02: As I said to Judge Dyck, we don't dispute that. [00:31:25] Speaker 02: The question is, what is correct claim interpretation? [00:31:29] Speaker 02: And let me just say one thing about that. [00:31:32] Speaker 02: And then two things, one about Hillis, one about Nomura. [00:31:37] Speaker 02: The question before you is, is the correct claim interpretation one that would, use my example, have one input be a scroll and any other number of inputs? [00:31:50] Speaker 02: Practically, it's going to be 10 or less be a gesture. [00:31:53] Speaker 02: Or is it, did the inventors really intend that two or more in the context of this claim would allow you to have [00:32:02] Speaker 02: One is a scroll, two is a gesture, three is a gesture, four is a scroll, five is a gesture. [00:32:08] Speaker 02: It's not only the question of what the claim says, what the specification says, what the expert says. [00:32:14] Speaker 02: Common sense would say that's not what they're trying to do. [00:32:18] Speaker 02: Now, if our claim interpretation is correct, the patent office concedes that no more does not satisfy the limitation. [00:32:26] Speaker 02: So we can set no more aside. [00:32:28] Speaker 02: As to Hillis and the argument that was made to you, [00:32:31] Speaker 02: That argument was not made by the board or examiner below. [00:32:38] Speaker 02: There's no finding before you that if our claim interpretation is correct, that Hillis satisfies the limitation. [00:32:46] Speaker 02: And there's a really good reason why, and it's at page A543. [00:32:50] Speaker 02: Hillis is this big tabletop. [00:32:54] Speaker 02: It doesn't have the same constraints on limited display. [00:32:57] Speaker 02: It doesn't have the same constraints on hardware. [00:32:59] Speaker 02: Does it have the same constraints on software? [00:33:02] Speaker 02: And so what Hillis has, and it says so at 8.543, is a protocol where the system measures, as you put your finger or fingers down, the force with which you put it down, the velocity with which you put it down, the duration of time you put it down, and the direction in which you move. [00:33:25] Speaker 02: And then it compares that to a dictionary. [00:33:29] Speaker 02: And the dictionary says, well, if you started here and you ended there with this much force and this velocity, this looks like a scroll or a gesture. [00:33:40] Speaker 02: If you have a big tabletop display, you can afford to do that. [00:33:44] Speaker 02: You might have the room. [00:33:45] Speaker 00: Wouldn't one respond that even in your invention, there are secondary tests that are done in order to distinguish a scroll and a gesture? [00:33:54] Speaker 00: I believe dependent claim five talks about one of them. [00:33:58] Speaker 02: Some of the dependent claims will actually talk about distinguishing gestures that are rotations or scaling. [00:34:05] Speaker 02: For sure, there are different types of gestures, and they're described in the specification. [00:34:10] Speaker 02: But Judge Stoll, every single one of them is a multi-input touch. [00:34:15] Speaker 02: There are none. [00:34:17] Speaker 02: that are a single input touch, and there are no multiple input touches that are gestures. [00:34:24] Speaker 02: So there are, for short, different types of gestures. [00:34:27] Speaker 02: The dependent claims describe them. [00:34:31] Speaker 02: But that's what Hillis doesn't satisfy, because what the claim says, and it is the simplicity of being able to do this on a small device, it is use one finger, we know it's a scroll. [00:34:44] Speaker 02: Use anything more, we know it's a gesture. [00:34:47] Speaker 02: Hilles doesn't do that. [00:34:49] Speaker 02: It has a set of four or five different considerations that are detailed at the bottom of A543. [00:34:56] Speaker 02: And it says, you've got to compare them to a dictionary. [00:35:00] Speaker 02: That's the reason. [00:35:01] Speaker 02: And I think this actually may be the best resolution of it. [00:35:07] Speaker 02: If you consider. [00:35:08] Speaker 00: If, though, say it did distinguish between a scroll and a gesture based on, and it satisfied the two or more touches. [00:35:17] Speaker 00: You're not saying that it wouldn't be okay for Hillis to then continue to do other kinds of things because your claim is a comprising claim, right? [00:35:25] Speaker 00: That's correct. [00:35:26] Speaker 02: If you distinguish between a single input and multiple inputs, decided it was a scroll or a gesture, and then you did other things, that would be fine. [00:35:36] Speaker 02: Because you would have done the distinguishing and determining. [00:35:39] Speaker 02: Final thought. [00:35:40] Speaker 02: Very final thought. [00:35:42] Speaker 02: Let me just ask when the [00:35:44] Speaker 02: panel considers the argument that was just made to you about Hillis, we'd ask you to consider page A17, which is where the board said for the very first time, well, the result might be the same under Apple's claim interpretation. [00:36:02] Speaker 02: If it did, Nomura would satisfy the limitation. [00:36:06] Speaker 02: Not Hillis, Nomura. [00:36:09] Speaker 02: Now we come before you, and we have the same argument, which is if Apple's [00:36:14] Speaker 02: Interpretation is correct. [00:36:16] Speaker 02: The Patent Office still wins. [00:36:17] Speaker 02: But this time it's not Nomura, it's Hellas. [00:36:22] Speaker 02: That can't be. [00:36:23] Speaker 02: And the answer is neither does it. [00:36:25] Speaker 02: Thank you. [00:36:25] Speaker 03: Thank you. [00:36:26] Speaker 03: We thank both sides. [00:36:27] Speaker 03: The case is submitted. [00:36:28] Speaker 03: That concludes our proceedings.