[00:00:15] Speaker 00:
The next case for argument is 16-2324 Rembrandt Patent Innovations versus Apple.

[00:01:01] Speaker 00:
Okay, I think we're ready, Mr. Jakes, whenever you're ready.

[00:01:13] Speaker 02:
Good morning.

[00:01:14] Speaker 02:
You may please the court.

[00:01:16] Speaker 02:
The first issue in this case is claim construction.

[00:01:19] Speaker 02:
And in particular, whether the claims here that use the word recovery, does that mean only automatic recovery without human intervention?

[00:01:28] Speaker 02:
The ordinary meaning of recovery

[00:01:30] Speaker 02:
is broad enough to cover both automatic and not automatic, and also broad enough to cover with human intervention.

[00:01:39] Speaker 02:
The district court did not find that the word recovery had a special meaning, that it somehow meant automatic.

[00:01:45] Speaker 02:
And the specification itself is broad enough to cover both.

[00:01:49] Speaker 02:
It describes a prior process as recovery.

[00:01:53] Speaker 02:
It doesn't say automatic.

[00:01:54] Speaker 02:
In fact, where the specification wants to say automatic, it uses it repeatedly as a modifier

[00:02:01] Speaker 02:
of the word recovery.

[00:02:02] Speaker 02:
So we start with the premise that recovery, the word itself, does not mean automatic recovery.

[00:02:09] Speaker 02:
So the district court below said the term recovery had to be qualified.

[00:02:14] Speaker 00:
Well, isn't it a little different than that?

[00:02:17] Speaker 00:
Isn't it that there's not necessarily a plain and ordinary meaning that includes both automated and not automated, that we have the word recovery and we're supposed to under Phillips, and I think virtually all of our case law,

[00:02:30] Speaker 00:
read that term to understand it in the scope of the specification.

[00:02:34] Speaker 00:
And so we have to use a specification.

[00:02:37] Speaker 00:
And it overwhelmingly, I know you might dispute this, but at least the district court concluded that overwhelmingly, everything in the specification points you towards automated recovery, right?

[00:02:48] Speaker 00:
So that's sort of looking at it a different way, not starting with there's an absolute plain and ordinary meaning.

[00:02:54] Speaker 00:
Is there a clear and unmistakable disclaimer in the spec?

[00:02:58] Speaker 02:
Your Honor, I would start with the fact that there is a plain and ordinary meaning within the specification, that the word recovery is used both to describe automatic and non-automatic recoveries.

[00:03:11] Speaker 02:
Where it's differentiated, it uses the word automatic.

[00:03:15] Speaker 03:
Doesn't that mean whenever they mean automatic recovery, they use automatic recovery, and when they're differentiating it from recovery that's non-automatic, they're using simply the word recovery?

[00:03:28] Speaker 02:
certainly says that the word recovery isn't broad enough to cover both.

[00:03:32] Speaker 03:
Yes, but the problem is, whenever it's talking about your invention, it's always talking about automatic recovery.

[00:03:38] Speaker 03:
The few instances where they talk about recovery, it's talking about the prior art, which you're trying to improve on.

[00:03:46] Speaker 02:
Well, that's right.

[00:03:47] Speaker 02:
But we're looking at the word recovery to start with.

[00:03:50] Speaker 02:
And the word recovery by itself can cover either one.

[00:03:53] Speaker 02:
And so we go to the claims.

[00:03:55] Speaker 02:
The claims don't say automatic recovery.

[00:03:57] Speaker 02:
They say recovery.

[00:03:58] Speaker 02:
So we have to start from that point that there isn't the word automatic read into the word recovery.

[00:04:05] Speaker 03:
We still have to read the specification and figure out what your invention is, though.

[00:04:08] Speaker 03:
That's exactly right, Your Honor.

[00:04:10] Speaker 02:
And this invention has to do with security.

[00:04:13] Speaker 02:
It has to do... And reliability.

[00:04:16] Speaker 02:
Exactly right, which is really not anything different than security.

[00:04:20] Speaker 02:
It's the same thing.

[00:04:21] Speaker 02:
It's providing a secure boot system that uses these layered integrity checks.

[00:04:26] Speaker 02:
And sometimes focusing on this word automatic, we lose sight of the rest of the invention, which was the more important part of it, that this has to do with security and these layered integrity checks, all of which are fine.

[00:04:38] Speaker 04:
I guess part of the security was the automation of the recovery process.

[00:04:44] Speaker 04:
We're all talking in a generic way about the overall patent, but the patent thrust seems to be

[00:04:50] Speaker 04:
we're going to create security in the boot up process and the recovery of boot up components by having it all done seamlessly.

[00:04:59] Speaker 04:
The user can just sit there.

[00:05:04] Speaker 04:
And then behind the screen, this is all just going to happen without using a disk drive to install or anything else.

[00:05:13] Speaker 04:
The user doesn't have to do anything.

[00:05:15] Speaker 04:
It avoids the cost and loss of time.

[00:05:19] Speaker 04:
to do the recovery process and also it improves security.

[00:05:24] Speaker 04:
So I guess when you talk about how the patent discusses forms of recovery that are not completely automated, those seem to be prior art examples in what I saw or examples of recovery after

[00:05:46] Speaker 04:
your automatic recovery system fails for some reason.

[00:05:49] Speaker 04:
And so I'd like you to speak to that because assume for the moment I look at the invention, the central invention as automating the recovery process so it's totally seamless and blind to the user and all other discussions of anything that might be regarded as recovery or either prior art or something that occurs after the claimed automatic recovery process fails.

[00:06:13] Speaker 02:
Okay.

[00:06:13] Speaker 02:
First of all, I won't agree with you that the invention is limited to automatic recovery.

[00:06:19] Speaker 02:
There are other aspects to it.

[00:06:21] Speaker 02:
And you're talking about an objective of the system.

[00:06:24] Speaker 02:
And it is certainly something that is discussed in terms of the preferred embodiment, in fact, as the best way to do it.

[00:06:30] Speaker 02:
But it's not the invention, per se.

[00:06:33] Speaker 02:
Because even starting with the beginning and the abstract, it says the invention can be augmented with automatic recovery.

[00:06:41] Speaker 02:
It doesn't say must always do that.

[00:06:43] Speaker 02:
But we can't lose sight of the fact that this invention has to do with these layered integrity checks.

[00:06:49] Speaker 02:
And that's very important.

[00:06:50] Speaker 02:
Now, the automatic part of it that is described in the patent, it is there to enhance security.

[00:06:56] Speaker 02:
It's not solely without human intervention, though.

[00:07:00] Speaker 02:
The point is to maintain that security.

[00:07:03] Speaker 02:
And how does it do that?

[00:07:04] Speaker 02:
Well, one of the ways it does that is by avoiding

[00:07:07] Speaker 02:
the user putting in a foggy disk, which could be compromised.

[00:07:10] Speaker 02:
It's not that the fact that a human has to do it, it's the fact that the disk could be compromised, and so you compromise the security.

[00:07:19] Speaker 00:
Now, the word automatic, the judge said... But you'll agree that even though, so you recognize that there are things that are included in the present invention, for example, that instance with this human, but they still refer to that process as recovery.

[00:07:34] Speaker 00:
So doesn't that by itself undermine your position that the word should somehow construe the word recovery in the claim to be so broad as to cover everything?

[00:07:45] Speaker 02:
Well, where the invention is being distinguished in terms of automatic recovery, the word automatic is used.

[00:07:52] Speaker 02:
And so we can't lose sight of the claim language and the fact that it does not use the word automatic.

[00:07:57] Speaker 00:
Well, no, I'm talking to the point that, for instance, in column three, line 46,

[00:08:02] Speaker 00:
why the recovery method is inferior to the present invention.

[00:08:06] Speaker 00:
That's the recovery method using human intervention on the floppy disk stuff.

[00:08:11] Speaker 00:
So clearly, there's a recognition that certain recovery methods are not contained within the definition, the plain and ordinary meaning, as used in the claim of recovery, right?

[00:08:23] Speaker 02:
Well, Your Honor, I think that gets to a disclaimer.

[00:08:25] Speaker 02:
That would have to be a disclaimer.

[00:08:26] Speaker 02:
And this is not of the type read in the overall specification

[00:08:31] Speaker 02:
then we can say that's a clear and disavowal.

[00:08:33] Speaker 04:
So are you saying that your claim, claim one, covers the disk embodiment of recovery?

[00:08:42] Speaker 02:
Well, it doesn't require automatic, and it doesn't require without human intervention.

[00:08:50] Speaker 04:
So the disk drive embodiment, the disk embodiment that one could argue is being denigrated there in the patent,

[00:08:59] Speaker 04:
In your view, it is, in fact, covered by the claim.

[00:09:03] Speaker 02:
Jen, I don't believe it does, because the claim also does require a trusted repository.

[00:09:08] Speaker 02:
And I don't think the floppy disk embodiment would satisfy that.

[00:09:15] Speaker 02:
And why is that?

[00:09:16] Speaker 02:
A trusted repository?

[00:09:17] Speaker 02:
Well, that's what this invention, one of the other aspects, was trying to get around.

[00:09:21] Speaker 02:
You have to have a trusted repository in order to do that recovery.

[00:09:26] Speaker 02:
And the floppy disk is something that

[00:09:28] Speaker 02:
the integrity could be compromised, and that's one of the reasons that was said to be inferior.

[00:09:33] Speaker 02:
But why is it inferior?

[00:09:36] Speaker 03:
Why can't it be compromised?

[00:09:38] Speaker 03:
Isn't it because, and I think you explained this, is because people can carry it out and have to insert it or not, which implies that the fact that there's human involvement makes it inferior.

[00:09:49] Speaker 02:
It's not just human involvement.

[00:09:50] Speaker 02:
It's the fact that it could be not secure.

[00:09:53] Speaker 02:
And so if you have a trusted repository, that's different than the disk embodiment.

[00:09:58] Speaker 02:
So I do think you have to read one section, which is in column three, about the present invention in the context of the entire invention.

[00:10:07] Speaker 02:
But even if the word automatic is read into the claim, we did present a factual issue that summary judgment should not have been granted based on that.

[00:10:20] Speaker 02:
And again, I understand the overall context of the invention.

[00:10:22] Speaker 02:
There are these later integrity checks.

[00:10:25] Speaker 02:
It's this bootstrap process.

[00:10:27] Speaker 02:
And then in Apple's process, it's really a trivial difference.

[00:10:32] Speaker 02:
You plug it into the computer and click OK.

[00:10:35] Speaker 02:
That is within the jury's understanding.

[00:10:36] Speaker 00:
But when there's an integrity failure, then it goes into an unusable state.

[00:10:42] Speaker 00:
And at that point, human intervention is required, right?

[00:10:46] Speaker 00:
I'm talking about Apple's products.

[00:10:47] Speaker 02:
I don't believe we would call that human intervention.

[00:10:50] Speaker 00:
User intervention.

[00:10:51] Speaker 00:
How about user intervention?

[00:10:52] Speaker 02:
It's not user intervention either.

[00:10:54] Speaker 02:
If you look in the specification of column 10,

[00:10:56] Speaker 02:
where it describes a warm boot process, it says that happens without user intervention.

[00:11:01] Speaker 02:
And that requires the operator to click Control, Alternate, Delete.

[00:11:06] Speaker 02:
So saying absolutely no keystrokes.

[00:11:08] Speaker 00:
I'm sorry.

[00:11:09] Speaker 00:
I'm trying to find what you say.

[00:11:10] Speaker 02:
Yes.

[00:11:11] Speaker 02:
In column 10?

[00:11:12] Speaker 00:
Yeah.

[00:11:13] Speaker 00:
What lines?

[00:11:15] Speaker 02:
Column 10 over to the right.

[00:11:17] Speaker 02:
So in the first full paragraph there.

[00:11:19] Speaker 00:
Right.

[00:11:19] Speaker 00:
And it talks about the entire process occurs without user intervention.

[00:11:23] Speaker 02:
Once the repair is completed, the system has restarted Warm Boot to ensure that the system boots.

[00:11:28] Speaker 02:
This entire process occurs without user intervention.

[00:11:32] Speaker 02:
And if you go back over to column 8, just three lines down, Warm Boot requires pressing three keystrokes.

[00:11:40] Speaker 00:
I'm sorry, where are you?

[00:11:41] Speaker 02:
Is that at the end of the recovery process?

[00:11:44] Speaker 02:
It is at the end of the recovery process, but that paragraph in column 10... So it's recovered automatically.

[00:11:49] Speaker 03:
It's just that in order to somehow restart, you have to push control-alt-delete.

[00:11:54] Speaker 02:
That is correct, Judge Hughes.

[00:11:55] Speaker 02:
But that paragraph says this entire process occurs without human intervention.

[00:12:00] Speaker 02:
And that includes the warm boot part of it.

[00:12:03] Speaker 03:
But the output product is completely different.

[00:12:05] Speaker 03:
They won't even start the process until you plug it into a computer or do something.

[00:12:12] Speaker 03:
Yours, at least, description, goes ahead and starts it, even if at the

[00:12:17] Speaker 03:
after it's completed, there's some human intervention.

[00:12:20] Speaker 02:
That is true.

[00:12:21] Speaker 02:
But the claim step is recovery.

[00:12:25] Speaker 02:
And the judge said, qualified it to say recovery requires automated.

[00:12:30] Speaker 03:
I just don't understand why what you're pointing to helps you.

[00:12:33] Speaker 03:
Because it still describes everything that happens in the recovery process as automated.

[00:12:38] Speaker 03:
It's just at the end of the recovery process, the user has to do something to restart the computer.

[00:12:44] Speaker 03:
But that's not the recovery process.

[00:12:46] Speaker 02:
Understood, Your Honor.

[00:12:46] Speaker 02:
My point was the specification describes that as without human intervention.

[00:12:50] Speaker 00:
No, I'm not understanding what you're saying about that paragraph.

[00:12:53] Speaker 00:
They're talking about the recovery process is entered to repair any integrity failure.

[00:12:59] Speaker 00:
So the recovery process is defined as the process of repairing.

[00:13:03] Speaker 00:
And then it says to ensure the system boots.

[00:13:08] Speaker 00:
The entire process, meaning the recovery process, occurs without user intervention.

[00:13:13] Speaker 02:
Well, the immediately preceding sentence talks about the warm boot.

[00:13:17] Speaker 02:
That's a part of the entire process as well.

[00:13:20] Speaker 02:
That paragraph says this entire process, referring to everything that happened before that.

[00:13:26] Speaker 00:
Well, it says once the repair is completed, so the recovery process is entered to repair the integrity.

[00:13:32] Speaker 02:
That's right.

[00:13:32] Speaker 00:
So that's the process we're talking about.

[00:13:35] Speaker 02:
And it says the system is restarted to ensure that the system boots

[00:13:39] Speaker 02:
This entire process occurs without user intervention.

[00:13:42] Speaker 04:
I guess where in this entire conversation is this part of the recovery process?

[00:13:49] Speaker 02:
It's the end of the recovery process.

[00:13:51] Speaker 02:
The point is that it includes a warm boot process as something that doesn't require human intervention, which requires keystrokes.

[00:14:04] Speaker 02:
That's why I was saying I don't think human intervention can be interpreted

[00:14:08] Speaker 02:
as the user doing nothing.

[00:14:10] Speaker 02:
And so we have a factual question here as to when does recovery start in Apple's process?

[00:14:16] Speaker 02:
We have testimony from one of the witnesses that it says recovery starts when the user clicks OK.

[00:14:22] Speaker 02:
From that point on, it's automatic.

[00:14:24] Speaker 02:
And automatic is an ordinary word that the jury could understand.

[00:14:28] Speaker 02:
So even if the term recovery has to be qualified with automatic, that it has to be read into it, a jury could still find that Apple's process is automatic.

[00:14:38] Speaker 02:
We also raised the doctrinal equivalence.

[00:14:40] Speaker 02:
There was no contrary evidence that was presented, and that is also a factual question.

[00:14:46] Speaker 02:
We have an expert testimony on that as well.

[00:14:49] Speaker 02:
Is what Apple does no more than an insubstantial change requiring the device to be plugged in and to click OK?

[00:14:57] Speaker 02:
Is that sufficiently automatic to meet the claim language?

[00:15:01] Speaker 00:
OK, thank you.

[00:15:02] Speaker 00:
We'll restart in about three minutes.

[00:15:14] Speaker 01:
May it please the court.

[00:15:16] Speaker 01:
The district court wrote, this is a recovery process that begins, proceeds, and finishes without user intervention.

[00:15:25] Speaker 01:
And I think if you start looking at the pen, the specific words that are used with this pen, that is clearly correct.

[00:15:33] Speaker 01:
It may help, if you're honest, don't mind, to go through some of those key phrases.

[00:15:37] Speaker 04:
On the first page, I guess, could we just go to one of the last points, or the very last point,

[00:15:42] Speaker 04:
Mr. Jakes was making, which is that at least at the top of column 10, we have one understanding of what it means to be a process that occurs without user intervention.

[00:15:57] Speaker 04:
And that notion of without user intervention actually includes a warm boot restart, which is, I assume, like a user pressing Control Alt Delete all at the same time.

[00:16:13] Speaker 04:
So if the patent theoretically were to define without user intervention that phrase in such a way that actually calls for a user to do something, however insignificant that may be, that's nevertheless some level of human involvement that perhaps makes us now, channels us to think about that phrase without user intervention in a way a little more broadly than the district court did.

[00:16:41] Speaker 04:
And could you comment on that?

[00:16:43] Speaker 01:
Yes, so Your Honor, the problem with that is the assumption.

[00:16:47] Speaker 01:
So a worn boot can mean control alt delete, but it really just means the computer restarting itself.

[00:16:52] Speaker 01:
So when you update your computer or your phone and it restarts itself without you doing anything, that's also a worn boot.

[00:16:59] Speaker 01:
It just means that the system is already functioning.

[00:17:01] Speaker 01:
So in this instance, they're talking about a worn boot in the context you were describing earlier in column 10.

[00:17:08] Speaker 01:
It's because they want a secure and reliable system, and so people aren't out

[00:17:13] Speaker 01:
delayed from work, there's no human risk, it just gets going.

[00:17:17] Speaker 04:
Is there something in Column 8 that explains what the patent means when it talks about a warm boot?

[00:17:24] Speaker 01:
No, but if you... It doesn't say warm boot there?

[00:17:28] Speaker 01:
It does say warm boot in Column 8.3, I believe it is.

[00:17:33] Speaker 01:
But this is just the system getting going.

[00:17:35] Speaker 01:
It's not after it's found a problem, it needs to recover.

[00:17:41] Speaker 01:
So the first part of this is let's get going.

[00:17:43] Speaker 01:
column 10 is about, oh, we've got a problem.

[00:17:47] Speaker 01:
We need to fix it.

[00:17:48] Speaker 01:
We need to recover.

[00:17:50] Speaker 01:
And so the people can't, so the system won't have a break in time.

[00:17:53] Speaker 01:
There won't be the risk of user involvement.

[00:17:56] Speaker 01:
We're going to warm boot it, but not in the way you were asking about, just in the way of getting going again.

[00:18:01] Speaker 04:
What if I understood the parenthetical of warm boot in column 10 to be referencing the example of a warm boot in column 8 of control-alt-delete?

[00:18:12] Speaker 04:
Then what do you think does that mean to the meaning of the following sentence without user intervention?

[00:18:19] Speaker 01:
That's what confirms the alternative definition I was getting because when you say the entire process occurs without user intervention, the prior sentence, the one group referred there, is without user intervention.

[00:18:34] Speaker 01:
It's just happening.

[00:18:35] Speaker 01:
as with the automatic updates.

[00:18:38] Speaker 04:
Okay, well let me make it clear.

[00:18:39] Speaker 04:
When I see control alt delete, I think in my mind of a picture of a user using three fingers to press down on those three buttons to boot up the system.

[00:18:54] Speaker 04:
And so therefore that's a human I'm talking about intervening in some minuscule way perhaps, but that's a human intervening.

[00:19:03] Speaker 04:
So what is that now

[00:19:05] Speaker 04:
due to the following sentence, which talks about this process is without user intervention.

[00:19:10] Speaker 04:
Doesn't it somehow broaden out perhaps the default understanding of without user intervention to perhaps be something that includes hitting Control-Alt-Delete?

[00:19:23] Speaker 01:
So I see where you're on is going.

[00:19:25] Speaker 01:
I don't think that accurately describes what a warm boot is.

[00:19:27] Speaker 01:
But even so, the use of user there would be nothing like the use of a user in Apple's devices.

[00:19:34] Speaker 01:
So I don't think it would help the other side.

[00:19:36] Speaker 01:
So the Apple user determines both the when a restart would happen.

[00:19:41] Speaker 01:
As we discussed earlier, the device just goes unusable, it becomes bricked.

[00:19:47] Speaker 01:
That is something that wouldn't happen automatically no matter what user level involvement means.

[00:19:51] Speaker 01:
The device just sits there until the user decides, okay, now I want to get it fixed.

[00:19:55] Speaker 01:
The Apple user decides how to get it fixed.

[00:19:57] Speaker 01:
Are they going to take it to a store?

[00:19:59] Speaker 01:
They're going to have to find a computer to connect it to.

[00:20:01] Speaker 01:
They have to get it working with iTunes.

[00:20:02] Speaker 01:
They have to get it working on wireless.

[00:20:05] Speaker 01:
So even if there is one.

[00:20:05] Speaker 04:
So what if hypothetically, I don't know, on the imaginary keyboard on an iPhone, a user, once the phone is bricked, presses down on the buttons for Control-Alt-Delete, would that fall within the claim language?

[00:20:23] Speaker 04:
Because now,

[00:20:25] Speaker 04:
we're understanding without user intervention to encompass a warm boot?

[00:20:31] Speaker 01:
So, I mean, this is a case where you can get hypotheticals and make automatic become, but that's not, it's really not this case, Your Honor.

[00:20:39] Speaker 04:
I mean, we're talking about- Right, I'm just trying to understand this hypothetical, though.

[00:20:43] Speaker 04:
Okay, so- If I were to think of the word warm boot as a user hitting Control-Alt-Delete, then does that

[00:20:53] Speaker 04:
force me to think of the phrase, without user intervention, to encompass something as minor as pressing Control-Alt-Delete.

[00:21:02] Speaker 04:
And then if so, then if the iPhone were, once it's bricked, the user hits Control-Alt-Delete, that would meet the claim limitation of recovery.

[00:21:12] Speaker 01:
Another way to look at it, Your Honor, is a discussion we were having about prior art earlier.

[00:21:15] Speaker 01:
If you look at the purpose of this design, it's to get the user out of it.

[00:21:19] Speaker 01:
The delay itself is something that this patent is trying to stop.

[00:21:23] Speaker 01:
I mean, it's focused on the security community.

[00:21:25] Speaker 01:
It doesn't want to delay in these systems.

[00:21:27] Speaker 01:
So if the user has to start it by Control-Alt-Delete, the system could be down for quite a while.

[00:21:32] Speaker 01:
And that does go against the tenor of this patent.

[00:21:39] Speaker 01:
So, John, you started the argument, I think, focusing on the words that matter so much in a claim or the context.

[00:21:46] Speaker 01:
And this patent uses present invention

[00:21:49] Speaker 01:
in a really striking way.

[00:21:52] Speaker 01:
There is the present invention in the abstract, but this is, I think, unbelievable.

[00:21:57] Speaker 01:
If you go to the field of the invention, which is Appendix 62.

[00:22:02] Speaker 01:
So this is the field of the invention.

[00:22:04] Speaker 01:
It says, this invention relates to an architecture of initializing a computer system and more particularly to a secure groupstrap process of automated recovery procedure.

[00:22:13] Speaker 01:
So the whole field is about automated recovery procedure.

[00:22:17] Speaker 01:
You go to column three, that we were talking about before, which discusses the prior art, 57 to 59, talks about present invention providing automatic recovery.

[00:22:30] Speaker 01:
When you go to the summary of invention, column four, four over six, it's the same thing, present invention.

[00:22:36] Speaker 01:
So at the hearing, the district report said, this pen is soaked in automatic recovery.

[00:22:48] Speaker 04:
What about doctrine of equivalence?

[00:22:50] Speaker 04:
Vigiation, sometimes that concept gets thrown around a little too casually.

[00:22:58] Speaker 04:
And why would it be vigiation here?

[00:23:09] Speaker 04:
When there can be something that's really almost completely automated,

[00:23:14] Speaker 04:
but not totally automated.

[00:23:16] Speaker 04:
And why wouldn't that be an insubstantial difference from a claim for automatic recovery?

[00:23:22] Speaker 01:
Thank you, Your Honor.

[00:23:24] Speaker 01:
And as the briefing makes clear, there are really two Supreme Court decisions that provide guidance here.

[00:23:30] Speaker 01:
And both of them are relevant still.

[00:23:33] Speaker 01:
One is Warwick and one is Jenkins.

[00:23:34] Speaker 01:
The other is Graver Tank.

[00:23:35] Speaker 01:
And Graver Tank has the phrase, mercy of verbalism.

[00:23:41] Speaker 01:
And I think the reason for the equivalent doctrine

[00:23:43] Speaker 01:
is to not get people get advantage from language that obviously language can be hard to contain.

[00:23:52] Speaker 01:
So the mercy of verbalism is I think what Graver Tank is talking about.

[00:23:55] Speaker 01:
But more technically, it asks whether there's a substantial difference, which is a more practical way of putting what I was just saying.

[00:24:01] Speaker 01:
And here, as we were just describing, there are some key differences

[00:24:05] Speaker 01:
between the way the Apple devices work and the way this patent sets it up.

[00:24:09] Speaker 01:
There's the user, which this patent is almost afraid of because the user may allow corruption, while the Apple system trusts its users to decide things like when is the right time, how should it be done.

[00:24:24] Speaker 01:
And the initiation way to look at it is automatic and humans are in many ways opposites.

[00:24:30] Speaker 01:
And so if the claim construction argument is about whether automatic is required, you can't then go into the equivalence context and basically have the same argument and reach a different result.

[00:24:41] Speaker 01:
And there are several cases from this court that make that point.

[00:24:43] Speaker 01:
Yes, the parties disagreed.

[00:24:45] Speaker 01:
It was argued about in the claim construction context.

[00:24:48] Speaker 01:
We can't have the same argument and come up any differently in the equivalent context.

[00:24:53] Speaker 04:
What do you think is the best case for that?

[00:24:56] Speaker 01:
Well, it actually happened in Honeywell, which is obviously very on point.

[00:24:59] Speaker 01:
because there's a lot of present invention language, and that is four times in Honeywell.

[00:25:03] Speaker 01:
I started on the present inventions in this case, and the argument also makes the same point.

[00:25:14] Speaker 00:
Thank you.

[00:25:27] Speaker 02:
If I may address the vitiation question, doctrine of equivalence here first is a factual question.

[00:25:33] Speaker 02:
And the question of whether what Apple does is an insubstantial difference is a factual question.

[00:25:38] Speaker 02:
There's no contesting that.

[00:25:40] Speaker 02:
So the only question is vitiation.

[00:25:42] Speaker 02:
And vitiation occurs where an element is missing.

[00:25:46] Speaker 02:
Something is completely missing.

[00:25:47] Speaker 02:
We don't have that here.

[00:25:48] Speaker 02:
Apple has a recovery step.

[00:25:50] Speaker 02:
But the question is, is the recovery step equivalent to what is claimed?

[00:25:55] Speaker 02:
And can something that is

[00:25:56] Speaker 02:
that requires a trivial intervention by the user amount to the same thing as automatic.

[00:26:03] Speaker 04:
I guess the question is, in I think that Honeywell case, is once the court has arrived at concluding that there is some kind of implicit disclaimer in the claim, and so therefore construes the claim in a certain way, can you really take that implicit disclaimer out

[00:26:25] Speaker 04:
through Doctor of Equivalence.

[00:26:27] Speaker 04:
And I think the Honeywell case and the facts of that case basically said, no, you can't.

[00:26:31] Speaker 04:
Once you've made it clear that something is central to the invention and therefore the claim must mean X, you can't exclude X from the claim to capture things through Doctor of Equivalence.

[00:26:46] Speaker 04:
And so there's an analogous situation here, or at least arguably, in which

[00:26:54] Speaker 04:
we now know if the district court is right on claim construction that recovery is automatic recovery and not something close but not quite total automatic recovery.

[00:27:06] Speaker 04:
So under Honeywell, why wouldn't it be a vitiation outcome once you try to break open into the meaning of automatic recovery to mean

[00:27:17] Speaker 04:
almost but not quite automatic recovery.

[00:27:19] Speaker 02:
Your Honor, I think in that case there would have to be a clear and unmistakable disavowal of claim scope.

[00:27:25] Speaker 02:
An effective disclaimer.

[00:27:27] Speaker 02:
And that's not really what Apple's arguing.

[00:27:30] Speaker 02:
They've argued that this is not a disclaimer case.

[00:27:32] Speaker 02:
This is just a normal claim interpretation case.

[00:27:34] Speaker 02:
And so we don't reach that point where you have that sort of disavowal.

[00:27:40] Speaker 04:
But do you agree that if we were to conclude that there's disclaimer here, then

[00:27:46] Speaker 04:
That essentially defeats your doctrinal equivalence argument.

[00:27:51] Speaker 02:
If there is a clear and unmistakable disavowal of claims scope, I don't believe we can recapture that through the doctrinal equivalence.

[00:27:57] Speaker 02:
I agree.

[00:27:57] Speaker 02:
Right.

[00:27:58] Speaker 02:
But we do have the word automatic, and that has an ordinary meaning.

[00:28:02] Speaker 02:
And I think that's something that a jury could apply as well to find infringement.

[00:28:06] Speaker 02:
And so even if the word automatic is read into the claim, as the examples that were discussed in the brief, there's such things as automatic transmissions,

[00:28:16] Speaker 02:
ATMs that do require the user to push a button, a jury could find that the word automatic covers what is done here.

[00:28:24] Speaker 00:
And that's a claim construction issue.

[00:28:26] Speaker 00:
I mean, automatic is defined in the claim construction as without human intervention.

[00:28:33] Speaker 02:
Your Honor, I think those are actually two different things.

[00:28:34] Speaker 02:
I think that's one of the problems with what the court did.

[00:28:38] Speaker 02:
There's the term automatic, which means something, and then there's without human intervention, which means something in addition to that.

[00:28:44] Speaker 02:
And certainly, the without human intervention part of it, if you look at column three, where it talks about automatic, it's not disavowing all intervention.

[00:28:53] Speaker 02:
That goes back to my argument on column 10 and column 8.

[00:28:56] Speaker 02:
Where it says without user intervention, that doesn't mean that the user can't push through keys.

[00:29:03] Speaker 00:
Thank you.

[00:29:03] Speaker 00:
I thank both sides.

[00:29:04] Speaker 00:
The case is submitted.