[00:00:00] Speaker 03:
versus NCR.

[00:01:24] Speaker 03:
we're ready whenever you are, sir, and I can't pronounce your name, so you're going to have to help me out.

[00:01:30] Speaker 01:
Good morning, Your Honor.

[00:01:30] Speaker 01:
Thank you very much.

[00:01:31] Speaker 01:
May it please the Court, my name is Peter Lambria-Nakos, and I represent the Appellant Capital Security Systems.

[00:01:39] Speaker 01:
I would like to reserve two minutes for rebuttal, please.

[00:01:43] Speaker 01:
This appeal presents several issues of claim construction for the Court.

[00:01:46] Speaker 01:
I would like to try to focus on three of those issues today.

[00:01:50] Speaker 01:
The first issue involves

[00:01:51] Speaker 01:
the validation terms in the continuation patents, validate the document, validity of the document, and the term valid.

[00:01:59] Speaker 03:
So that's 600, 696, and 948?

[00:02:01] Speaker 01:
That's correct, Your Honor, yes.

[00:02:03] Speaker 01:
Okay.

[00:02:03] Speaker 03:
Well, let me ask you a threshold question, two threshold sort of procedural questions.

[00:02:07] Speaker 03:
One is, you would have to prevail on overturning the claim construction with respect to two terms with respect to each of those patents in order to prevail on the infringement.

[00:02:19] Speaker 03:
Is that correct?

[00:02:20] Speaker 01:
Yes, Your Honor.

[00:02:20] Speaker 01:
We would have to prevail with respect to the validation terms and with respect to the scanning terms.

[00:02:26] Speaker 03:
And the other thing is just I don't want to leap ahead to your other case, but you've got the other case going.

[00:02:31] Speaker 03:
And I just want to be sure I understand the overlay between the indefiniteness conclusions and the patents at issue here.

[00:02:38] Speaker 01:
Yes.

[00:02:38] Speaker 03:
So those three patents are impacted by one of the indefiniteness conclusions?

[00:02:44] Speaker 01:
That's correct.

[00:02:45] Speaker 01:
The ascertained and apparent signature

[00:02:47] Speaker 01:
term, which we're asking for review here in this appeal, has also been found indefinite.

[00:02:53] Speaker 01:
And that issue is being addressed in the second appeal.

[00:02:57] Speaker 01:
Thank you.

[00:02:58] Speaker 01:
Sorry to take your time.

[00:02:59] Speaker 01:
Sure.

[00:02:59] Speaker 01:
Thank you very much.

[00:03:00] Speaker 01:
So with respect to the validity terms, the key issue there, the key dispute is, should the validity terms be construed consistent with the claims and specification of the continuations?

[00:03:13] Speaker 01:
Or should they be construed in view of statements in the 625 patent, which is the parent patent, statements which do not appear in the specifications of the continuations?

[00:03:24] Speaker 01:
So specifically what I'm referring to is that in the continuations, the concept of validation of a document is that a document is reviewed, and the constituent parts of that document are reviewed themselves for validity.

[00:03:39] Speaker 01:
Each is reviewed, and then some

[00:03:41] Speaker 01:
standard that the bank requires is applied to each of those constituent parts to determine ultimately whether the bank will deem the document being deposited to be valid.

[00:03:52] Speaker 01:
And that is the validation procedure of the continuations.

[00:03:57] Speaker 01:
In the 625 patent, there's a teaching regarding validity of a signature.

[00:04:02] Speaker 01:
And generally, in the 625 patent, a signature is considered valid if it passes one of two tests.

[00:04:09] Speaker 01:
is valid because when it's compared to the signature on record of the user, it's sufficiently close, it's authentic, or at least it bears significant or sufficient similarity with the record signature.

[00:04:23] Speaker 01:
And there's another embodiment which discusses actually recognizing the characters of the signature to a confidence level and having those characters confirmed by the bank.

[00:04:35] Speaker 00:
What part of the 625 patent specifically are you relying

[00:04:39] Speaker 01:
Well, for the 625 patent, we are actually saying that there were two statements which were applied by the district coordinates construction, which are not in the continuations and which should not have been used to read the requirement of signature authentication into the continuations.

[00:04:54] Speaker 01:
So looking specifically at 625 patent at column 3, lines 1 to 3, which is appendix 369.

[00:05:03] Speaker 01:
And additionally, on the same page, column 4, lines 9 through 12,

[00:05:09] Speaker 01:
These state that the foremost problem is integrity of the document being exchanged for cash, in particular, verification of signatures on checks or money orders being cashed.

[00:05:19] Speaker 01:
The second statement says that cashing of checks or money orders is achieved by the ability to read the cursive signature of the drawer or maker of the instrument to verify the cursive signature as being that of a profiled or qualified user who has inserted his ATM card into the machine.

[00:05:36] Speaker 01:
So the district court relied on these statements requiring

[00:05:39] Speaker 01:
that all claims of all the patents, even though these statements are not in the continuation specification, and even though the continuation claims deal with check depositing, not check cashing, he relied on these statements to read signature authentication into the definition of validating a document.

[00:06:01] Speaker 01:
And that goes to the 600 and the 948, right?

[00:06:03] Speaker 01:
Correct.

[00:06:04] Speaker 01:
And the 696, because there is a term valid

[00:06:09] Speaker 01:
to determine that a signature is valid in the 696.

[00:06:14] Speaker 03:
Okay, well even if we were hypothetically to agree with the argument you've just made, you're still left with the scanning limitation.

[00:06:22] Speaker 03:
That's correct.

[00:06:23] Speaker 03:
I wanted to turn to that briefly.

[00:06:25] Speaker 03:
Sure.

[00:06:26] Speaker 01:
So the scanning, the argument regarding scanning the dispute is simply whether scanning requires sweeping across an image.

[00:06:39] Speaker 01:
So does it require some relative movement between the document being imaged and the imaging device?

[00:06:47] Speaker 01:
Now, the district court concluded that sweeping across an image is required, and it based that decision on extrinsic evidence.

[00:06:57] Speaker 01:
However, looking in the patent specification itself, it's clear that the inventor did not regard the term scanning to require relative movement.

[00:07:07] Speaker 01:
The only embodiment in the patent for the ATM which includes an imaging station is an embodiment where the check is fed to the camera and stops so that it is stationary.

[00:07:21] Speaker 01:
And then two cameras which are 58 and 60 in the embodiment take images of the front and back of the check.

[00:07:29] Speaker 01:
Now that is called capturing an image in some parts of the specification.

[00:07:36] Speaker 01:
It's called scanning in others.

[00:07:37] Speaker 01:
Sometimes those terms are used interchangeably.

[00:07:40] Speaker 03:
Maybe I misunderstood.

[00:07:41] Speaker 03:
There's a lot going on in this case.

[00:07:43] Speaker 03:
But I understood, leaving aside the dictionary definitions, and I understand you're arguing that the district court shouldn't have gotten me on the record.

[00:07:50] Speaker 03:
But I thought there's also evidence in the specification that talks about scanning and then capturing.

[00:07:57] Speaker 03:
as being two separate things, right?

[00:08:00] Speaker 03:
There is a sentence which says, the check is scanned or images of the front and the back sides of the check are captured.

[00:08:12] Speaker 03:
That's correct.

[00:08:13] Speaker 03:
That's in column.

[00:08:14] Speaker 03:
Go ahead.

[00:08:14] Speaker 01:
I'm sorry.

[00:08:15] Speaker 01:
I didn't mean to interrupt.

[00:08:16] Speaker 01:
Just in case you were looking for it.

[00:08:21] Speaker 01:
That is correct.

[00:08:22] Speaker 01:
And we regard this not as identifying two different ways of capturing an image.

[00:08:27] Speaker 01:
we identified this as sort of in other words.

[00:08:30] Speaker 01:
We're saying it's scanned.

[00:08:31] Speaker 01:
In other words, images are being captured.

[00:08:35] Speaker 01:
And we believe that that is correct, because there are other disclosures in the specification where the cameras are described as actually taking photographs of the check.

[00:08:53] Speaker 01:
So for example,

[00:08:57] Speaker 01:
in the 600 patent.

[00:09:17] Speaker 01:
At column 19, lines 12 through 15,

[00:09:24] Speaker 01:
It states, in a manner similar to that used for the scanning of the check, the cameras 58 and 60 photograph both sides of the cash money order and locate the indicia showing the amount of the money order, et cetera.

[00:09:37] Speaker 01:
So that's a case where the same cameras that are disclosed earlier as scanning or capturing an image are disclosed as taking photographs.

[00:09:46] Speaker 01:
Now, that's significant because NCR has cited to the abacus case as support for the proposition that

[00:09:54] Speaker 01:
scanners require relative movement.

[00:09:56] Speaker 01:
In that case, the court found, however, that cameras are not scanners and photographing is not scanning.

[00:10:04] Speaker 01:
And therefore, it appears, at least in this particular discussion, that those cameras are taking photographs, which means it's not scanning.

[00:10:12] Speaker 01:
And so we have a situation where the patentee is referring to scanning, photographing, capturing images, not any specific

[00:10:21] Speaker 01:
intent to show that there is sweeping and in fact the embodiment doesn't show any sweeping.

[00:10:26] Speaker 00:
I'm a little confused by your position.

[00:10:28] Speaker 00:
I think what I hear you saying is that this text that you quoted from column 19 shows that scanning is different than photographing or capturing an image.

[00:10:38] Speaker 00:
Is that what your position is or do I misunderstand you?

[00:10:40] Speaker 01:
Well, what I'm saying is that this discloses photographing.

[00:10:45] Speaker 00:
In a manner similar to that used for scanning of the check, the cameras photograph both sides

[00:10:51] Speaker 00:
of the cash money order.

[00:10:53] Speaker 00:
So are you equating these two concepts or are you distinguishing them?

[00:10:58] Speaker 01:
I'm saying that the patentee used the term scanning, photographing, interchangeably.

[00:11:04] Speaker 01:
The patentee wasn't saying, we have relative movement, we do sweeping.

[00:11:07] Speaker 01:
The patentee is just saying, we need to take images.

[00:11:11] Speaker 01:
And he's got two cameras and a check that stopped between those cameras.

[00:11:15] Speaker 01:
He uses scanning, he uses photographing.

[00:11:17] Speaker 01:
uses capturing.

[00:11:18] Speaker 00:
And you're relying on the language in particular that says in a manner similar to that used for the scanning of the check.

[00:11:25] Speaker 01:
Yes, because it's one embodiment.

[00:11:26] Speaker 01:
The only thing that's disclosed is one embodiment with those two cameras.

[00:11:29] Speaker 01:
So those cameras are capable of taking photographs, which doesn't involve the relative movement, the sweeping.

[00:11:37] Speaker 01:
That was written to the claim term.

[00:11:38] Speaker 00:
Do you have any other parts of the specification like this that you're relying on for that position?

[00:11:43] Speaker 01:
This is the one that actually uses the term photograph.

[00:11:58] Speaker 01:
So at column 13, lines 59 through 62, which the court referred to earlier, with the language, the check feeds directly into and stops at an imaging station where the check is scanned or images of the front and back sides of the check are captured.

[00:12:13] Speaker 01:
This was the language relied on by NCR to say that those are different.

[00:12:17] Speaker 01:
But then later on in the case, in column 14, line 7 through 11, it says, also while in the vertical stop position is preferred to have a camera unit

[00:12:28] Speaker 01:
58 and 60 dispose on opposite sides to capture images of both sides of the check and connect through SCSI device 59 to the computer.

[00:12:37] Speaker 01:
So the same devices, sometimes they're referred to as scanning, other times they do image capture.

[00:12:43] Speaker 01:
So the key item here is that there's no obvious intent here, looking at the embodiments and looking at the language, that indicates that the patentee intended

[00:12:55] Speaker 01:
for the capture of images in its invention to be limited to using a scanner that sweeps.

[00:13:01] Speaker 01:
It makes no difference to the invention whether there's a scanner that sweeps or not.

[00:13:05] Speaker 01:
It's irrelevant.

[00:13:06] Speaker 01:
All that matters is that images are captured.

[00:13:08] Speaker 01:
And so what's happened here is that NCR has seized on the use of the term scan to try to get a limitation into the claims when that limitation is not clearly required, is not supported by any disclosure, but instead is supported by

[00:13:22] Speaker 01:
looking at the word scan, which is used interchangeably with other terms, and then using dictionaries and other extrinsic evidence to get sweeping into the claims.

[00:13:32] Speaker 01:
And so we believe that the record here is consistent that the patentee was not intending to limit this invention to an ATM that has a scanner that uses swiping for gathering an image.

[00:13:49] Speaker 03:
You're almost done.

[00:13:50] Speaker 03:
Why don't we hear from the other side?

[00:13:52] Speaker 03:
Thank you, Your Honor.

[00:14:06] Speaker 02:
Thank you.

[00:14:07] Speaker 02:
May it please the court, Paul Hughes for Appellee and CR.

[00:14:11] Speaker 02:
So I'd like to begin with the scanner limitation.

[00:14:13] Speaker 02:
I do think the scanner limitation is the easiest way to resolve the continuation patents and then turn to the caching limitation.

[00:14:20] Speaker 02:
that may be the easiest way to resolve the 625 patent.

[00:14:23] Speaker 02:
As the court identified, the specification of the continuations quite clearly distinguishes the concept between... Well, but your friend had a decent answer, did he not, to my pulling out that... You're talking about the same sentence in the spec that we were talking about earlier, right?

[00:14:38] Speaker 02:
Yes, Your Honor, and there's additional evidence, but yes, Your Honor.

[00:14:40] Speaker 03:
Okay.

[00:14:40] Speaker 03:
Well, on that one, why isn't it fairly read... Why isn't the sentence fairly read to just be a kind of IE

[00:14:48] Speaker 03:
kind of reference.

[00:14:49] Speaker 03:
You've got the word or, so your argument is that they've got to be two different things because there's an or there.

[00:14:54] Speaker 03:
But why isn't it fairly read as just being kind of IE or EG or something other than?

[00:15:00] Speaker 02:
Well, you know, I think that disjunctive canon is quite strong and the patentee is clearly distinguishing two different concepts, which is consistent with all the extrinsic evidence about what's going on in this field.

[00:15:10] Speaker 02:
which is to say there are two different ways in which digital data can be put into an ATM.

[00:15:15] Speaker 02:
One is via a scanning device, which has a sweeping motion.

[00:15:18] Speaker 02:
Another is via image capture.

[00:15:19] Speaker 02:
What are your other reliance?

[00:15:21] Speaker 02:
So when we turn to column 14 on the next page at the very top, beginning at line four, that paragraph distinguishes the concept between scanned and then that's in line five.

[00:15:35] Speaker 02:
And then in line nine, there's a separate

[00:15:38] Speaker 02:
discussion of capturing images.

[00:15:41] Speaker 02:
And again, that's showing that there is a recognition that scanning is used in one place and image capture is used elsewhere.

[00:15:48] Speaker 00:
And I think read with the prior sentence that the court pointed to with the disjunctive makes quite... What about later on in that same column, lines, looks like it's lines 18 through 20.

[00:16:02] Speaker 00:
It says the scanner uses camera 58 and 60 to scan both sides of the document.

[00:16:08] Speaker 02:
Yes, Your Honor.

[00:16:09] Speaker 02:
And this is what the district court referenced at page 56 of the appendix, that a camera can perform a scanner function if the camera is configured such that the light beam sweeps.

[00:16:19] Speaker 02:
And that's entirely consistent with what this court held in the abacus case.

[00:16:23] Speaker 02:
Because in abacus, the court looked to a particular kind of scanner where there was no movement of the thing that was being scanned.

[00:16:33] Speaker 02:
And the court said there doesn't have to be mechanical movement of the thing being scanned

[00:16:38] Speaker 02:
if the light beam from the scanner is what's doing the sweeping.

[00:16:41] Speaker 02:
So it's certainly the case that a camera can be configured to scan if it has a sweeping motion from the camera.

[00:16:47] Speaker 00:
How do you respond to the point identified in column 19, lines, I guess it's about 13 through 15 where it says, in a manner similar to that used for the scanning of the check, the cameras 58 and 60 photograph both sides of the cash money order.

[00:17:07] Speaker 02:
I think the use of the word similar is quite telling.

[00:17:10] Speaker 02:
It's not saying it's the same manner as scanning.

[00:17:12] Speaker 02:
It's a manner similar.

[00:17:14] Speaker 00:
Well, but before it was talking about a check, and now it's talking about a cash money order.

[00:17:18] Speaker 02:
Well, and it's distinguishing that scanning is something that may be similar to image capture, but it's not the same thing.

[00:17:23] Speaker 02:
These are two distinct concepts.

[00:17:25] Speaker 02:
And also identify that all of the extrinsic evidence in the record, this includes the dictionary definitions that have put, but not just the dictionary definitions, also the prior art references that weren't introduced by NCR.

[00:17:36] Speaker 02:
They were introduced by CAPSEC.

[00:17:37] Speaker 02:
There were two separate prior art references that CAPSEC said identified what the one skilled in the art would understand these terms to mean.

[00:17:45] Speaker 02:
And when we looked at those references, they only supported a sweeping notion.

[00:17:49] Speaker 02:
Now this was a factual finding by the district court that CAPSEC doesn't challenge because there's no basis.

[00:17:55] Speaker 02:
All of the extrinsic evidence demonstrates that this was the technical meaning that was in the art.

[00:17:59] Speaker 02:
This is the exact same analysis the court adopted in the MITV abacus case.

[00:18:04] Speaker 02:
Where there the court said that there was some ambiguity,

[00:18:07] Speaker 02:
in the specification, so the court looked to extrinsic evidence, including prior patents and dictionary definitions, found there was a sweeping motion.

[00:18:14] Speaker 02:
The art and the references that were relied on the abacus case, which was signed in 2006, directly contemporaneous with the file date of these patents, the same sorts of dictionary definitions and prior patents that are relied upon here.

[00:18:26] Speaker 02:
This case, though, is stronger yet than the abacus case because there are the multiple cases in particular that one sentence that uses the disjunctive, but also in column 14,

[00:18:35] Speaker 02:
where the patent distinguishes between the concept of image capture and scanner.

[00:18:40] Speaker 02:
And again, as I said, this is entirely consistent with everything that's in the extrinsic record, again, that is a factual finding by the court that's not been challenged by CAPSEC.

[00:18:49] Speaker 02:
So I think when all of those things are combined, that makes a very powerful case for why the district court was correct in its understanding that scanning is a term of art in this field that is quite distinct

[00:19:01] Speaker 02:
from the concept of image capture.

[00:19:03] Speaker 00:
Can you give me the appendix page site for the fact finding that you're referring to?

[00:19:09] Speaker 02:
Yes, Your Honor.

[00:19:10] Speaker 02:
This is at appendix page 56.

[00:19:12] Speaker 02:
The court is considering the prior art references, which the court addresses at the bottom of appendix page 55, characterizes NCR's argument that relies on this prior art and what the prior art shows.

[00:19:28] Speaker 02:
the court agrees, then continues to discuss the common ordinary meaning of scanning, and then from there are cites also additionally to the dictionary definition.

[00:19:36] Speaker 02:
So it spans pages 55 and 56 of the appendix.

[00:19:42] Speaker 03:
No, I know you were planning to turn to another, the caching system, but why don't you deal with the other alternative basis here on validating the document that you spent a lot of his time on.

[00:19:53] Speaker 02:
Yes, Your Honor.

[00:19:53] Speaker 02:
Would you like me to focus first on the continuation patents?

[00:19:57] Speaker 02:
Yes, yes.

[00:19:58] Speaker 02:
So there are two separate claim terms in the continuation patents.

[00:20:03] Speaker 02:
The 696, I think, stands on somewhat different footing than the 600 and the 948.

[00:20:07] Speaker 02:
So to begin with the 696, I think that the... Well, can you actually... I'm sorry.

[00:20:13] Speaker 03:
Could you do the 600 and the 948?

[00:20:15] Speaker 03:
Absolutely, Your Honor.

[00:20:16] Speaker 03:
Because those are the claims that deal with authentication, right?

[00:20:20] Speaker 02:
Yes, they deal with validating the document.

[00:20:21] Speaker 03:
Validating and ascertaining an apparent signature.

[00:20:25] Speaker 02:
Yes, Your Honor.

[00:20:26] Speaker 02:
And let me just say, to begin, I think much of this analysis has been overtaken by the subsequent indefinite proceedings that we're going to, of course, talk about next.

[00:20:33] Speaker 02:
Because it is in the exact same claim term, the whole claim language is ascertained and apparent signature from the document in order to validate the document.

[00:20:41] Speaker 02:
So we're looking at the end of that phrase to validate the document.

[00:20:45] Speaker 02:
But this whole claim.

[00:20:46] Speaker 02:
Signature verification and those claims

[00:20:49] Speaker 02:
just consists of ascertaining an apparent signature, right?

[00:20:53] Speaker 02:
We disagree, Your Honor, because that would then render the language to validate the document entirely superfluous.

[00:20:59] Speaker 02:
It wouldn't have any function in the claim language if the earlier step of ascertaining the apparent signature were sufficient to validate the document.

[00:21:06] Speaker 02:
That's why the canon that suggests all words have to have meaning in the claims and reads against superfluous claim language suggests why validating the document has independent meaning.

[00:21:18] Speaker 02:
Again, the capsex construction that this can just... Well, can we just stay there for a minute?

[00:21:24] Speaker 03:
I mean, I've got the abstract.

[00:21:26] Speaker 03:
I mean, I thought in these patents, these two continuations at least, it describes in the abstract, it says validation of the document involves one word the following, validating the presence of a signature, not the authentication, right?

[00:21:41] Speaker 02:
Well, Your Honor, that describes the earlier part of the claim language ascertaining an apparent signature.

[00:21:47] Speaker 02:
Then the question is, what does it mean to validate the document?

[00:21:50] Speaker 02:
In the specification, we think there's only one embodiment that possibly describes what a validation of the document would look like.

[00:21:58] Speaker 02:
For example, in the 600 patent, that's an appendix page 466, and the language there is that the machine will, quote, analyze the signature image and compare it with the profile signature of the user.

[00:22:10] Speaker 02:
So in the only embodiment that we understand has this explanation of what validation looks like in the signature, it's doing the exact kind of comparison analysis that the district court adopted with respect to both the 600 and the 948.

[00:22:25] Speaker 02:
Now they also, CAPSEC points us to the OCR embodiment, but the OCR embodiment doesn't provide any discussion as to how the validation actually occurs.

[00:22:34] Speaker 02:
So we think that OCR embodiment doesn't bear on this question.

[00:22:38] Speaker 02:
and if anything is entirely consistent with what the district court understood as to there being a comparison requirement.

[00:22:44] Speaker 02:
But again, to the court central question, I think our principle argument is their contention would read the back end of the claim language out of the claim if the earlier step of ascertaining the parent signature, which again we think is indefinite.

[00:22:56] Speaker 02:
We think that's the key problem here.

[00:22:58] Speaker 02:
But if that were sufficient,

[00:23:00] Speaker 02:
the back end of the claim would cease to have any purpose.

[00:23:03] Speaker 02:
Instead, we think the better understanding is to see that that has a validation purpose, which is entirely consistent with what the district court, how it construed the claim language.

[00:23:13] Speaker 02:
Moving to the other continuation patent, the 696, I think our argument there is yet stronger because there the claim language is determining if the signature is valid

[00:23:25] Speaker 02:
The plain text meaning of valid, as the district court found, is quite compelling evidence for its construction.

[00:23:31] Speaker 02:
Also, there is a limitation differentiation between the prior limitation, which deals with ascertaining the apparent signature, and the same specification argument applies.

[00:23:40] Speaker 02:
But again, as we've said, we think these claim terms are largely overtaken by the indefiniteness argument.

[00:23:45] Speaker 02:
And that's in no small part because the alternative claim construction, the cap sec advances, which turns on specific banking parameters, would

[00:23:53] Speaker 02:
create the exact kind of indefiniteness problem that the district court subsequently found with respect to the ascertain apparent signatures.

[00:24:01] Speaker 02:
And that's because CAPSEC is of the view that claim scope here would be determined by what parameters a bank sets.

[00:24:09] Speaker 02:
But there's no way to know within the confines of the patent what those parameters would look like.

[00:24:15] Speaker 02:
Yes, Your Honor, I'm getting ahead of myself.

[00:24:18] Speaker 02:
So to turning, though, to the caching system,

[00:24:20] Speaker 02:
There are two main disputes, of course.

[00:24:22] Speaker 02:
The first is whether or not, with respect to claim one of the 625, if the preamble is limiting.

[00:24:28] Speaker 02:
And we think that it is obviously limiting.

[00:24:30] Speaker 02:
It's all the factors that were identified, for example, in Polyam are met here.

[00:24:34] Speaker 02:
The title, the abstract, the background summary, everything describes this as a check cashing system.

[00:24:40] Speaker 02:
By reply, CAPSEC seems to have abandoned the argument that the preamble isn't limiting.

[00:24:44] Speaker 02:
And I think they've also rendered it irrelevant because they at least agree that there is a check cashing limitation that exists somewhere.

[00:24:50] Speaker 02:
in the claims.

[00:24:51] Speaker 02:
We think it's most naturally found in the preamble of the claims, but it certainly exists somewhere in the claims.

[00:24:58] Speaker 02:
In terms of the construction of the phrase, Kapsek's principle argument is that check cashing was too narrowly construed by the district court because it was construed to mean that in Kapsek's view, one can cash a check for more than the face value of the check.

[00:25:16] Speaker 02:
And we think that's just a fundamentally incorrect construction.

[00:25:19] Speaker 02:
Rather, the district court got this precisely correct.

[00:25:21] Speaker 02:
The district court found that cashing is, quote, providing cash during a single ATM session ups the amount of the instrument presented.

[00:25:28] Speaker 02:
And at appendix page 48, the district court underscored what it understood by this, which is it has to be the money from the check, not the money from your account.

[00:25:37] Speaker 02:
As the district court's clear understanding of what check cashing means in this context, that that's absolutely correct.

[00:25:43] Speaker 00:
Can I ask you, I'm going to go back to the scanner limitation for one minute.

[00:25:46] Speaker 00:
You had said that

[00:25:49] Speaker 00:
that the patent order didn't challenge the district court's determination about the common and ordinary meaning of scanner.

[00:25:59] Speaker 00:
But why didn't they do that at pages 37 through 40 of their brief, where they talk about the district court, the extrinsic evidence that the district court relied on?

[00:26:10] Speaker 02:
So Your Honor, at page 37 to 40, where their focus is principally, as I understand it, on the dictionary date

[00:26:16] Speaker 02:
of the dictionary that the district court relied upon.

[00:26:20] Speaker 02:
There are a few problems with that.

[00:26:21] Speaker 02:
First, as this court said in Shire, we look to the relevance of dictionary dates when there's a dispute as to whether the dictionary definition has changed.

[00:26:29] Speaker 02:
And there's certainly been no change in the dictionary definition.

[00:26:30] Speaker 00:
But my question is, why do you think they don't contest it, given this section in the brief?

[00:26:35] Speaker 00:
I mean, they have other things where they say, even if these definitions were relevant, they should have been rejected as being inconsistent.

[00:26:43] Speaker 00:
So I'm just wondering, it seems to me they did contest the district's findings.

[00:26:48] Speaker 00:
So I'm trying to understand where you're getting that from.

[00:26:51] Speaker 02:
I should be more precise in what I say, and I apologize, Your Honor.

[00:26:53] Speaker 02:
What our contention is, the extrinsic evidence is entirely one-sided.

[00:26:57] Speaker 02:
The only extrinsic evidence is pointing in our direction.

[00:27:02] Speaker 02:
So there's no extrinsic evidence that CAPSEC has pointed that would suggest that their interpretation of scanning was anything

[00:27:09] Speaker 02:
understood as ordinary and customary in the relevant art.

[00:27:14] Speaker 03:
I mean, I'm just looking at the pages that Judge Stowe was referring to when they talk about the IEEE dictionary, and they're saying there's a different definition there.

[00:27:24] Speaker 03:
I wasn't understanding your point.

[00:27:26] Speaker 03:
You're saying you put in all these dictionaries that weren't necessarily contemporaneous with the filing of this patent, but you say they never rebutted it?

[00:27:36] Speaker 02:
Well, Your Honor, the district court made a factual finding based on these dictionary definitions and they've not shown that there was any material dictionary definition that had some alternative construction of scanning.

[00:27:47] Speaker 00:
They say the IEEE dictionary, it's on the top page 38, contains an entire page worth of definitions, none of which appear to be relevant to a scanner.

[00:27:57] Speaker 00:
Oh, I guess they're complaining about your definition.

[00:28:00] Speaker 02:
No, that's right, Your Honor.

[00:28:02] Speaker 02:
They're complaining that the definition they don't think was probative.

[00:28:05] Speaker 02:
They don't have an alternative definition that they say instead the court should have relied on this alternative definition in lieu of what we presented.

[00:28:12] Speaker 02:
And that's why I'm saying the evidence is all one-sided in this case.

[00:28:16] Speaker 02:
And again, the court can look to advocate software where the court went through this exact same analysis and a point, for example, to the Webster's dictionary that said,

[00:28:24] Speaker 02:
The 1968 definition of scanner is the exact same definition in the third edition of Webster's in 2002.

[00:28:29] Speaker 02:
There's been no change.

[00:28:31] Speaker 02:
And so that's why the court in Shire said, when somebody wants to dispute a dictionary definition or particularly a publication date, it's incumbent on them to come forward with some basis to think that this has changed over time.

[00:28:43] Speaker 02:
And then CapSec's not done that.

[00:28:46] Speaker 02:
But additionally, beyond the dictionary definitions, and I'll just close with the two pieces of the prior art that the district

[00:28:52] Speaker 02:
court looked to and found compelling were prior art that CAPSEC itself submitted during the Markman hearing saying that that was prior art that was relevant to the claim construction dispute because it bore on these questions.

[00:29:03] Speaker 02:
And again, this report was proper to find out.

[00:29:27] Speaker 01:
With respect to the scanning issue, our position is that the specification discloses one embodiment.

[00:29:33] Speaker 01:
It has two cameras.

[00:29:34] Speaker 01:
Those cameras are characterized as taking photographs.

[00:29:37] Speaker 01:
They're characterized as capturing images.

[00:29:40] Speaker 01:
There's also the use of scanning that's used to describe the operation in general of the image being captured from the check.

[00:29:48] Speaker 01:
There is definitely only one embodiment.

[00:29:51] Speaker 01:
If those cameras take photographs, then what we've seen in the case law that was submitted by NCR

[00:29:57] Speaker 01:
A photograph is not a scan.

[00:29:59] Speaker 01:
A camera is not a scanner.

[00:30:01] Speaker 00:
So one of the issues here is that the district court said that the ordinary meaning of scanning involves some sweeping motion.

[00:30:09] Speaker 01:
That's correct.

[00:30:09] Speaker 00:
Did you contest that?

[00:30:12] Speaker 01:
We contested that the application of extrinsic evidence to contradict or change the meaning of how the inventor was using the term scan in the intrinsic record was improper.

[00:30:27] Speaker 01:
So the intrinsic record shows cameras and shows a stationary check.

[00:30:33] Speaker 00:
So our view is there's no sweeping going on there.

[00:30:36] Speaker 00:
I understand your position.

[00:30:38] Speaker 00:
If I can summarize it for a minute, I think what you're saying is the ordinary meaning might include sweeping, but in the context of this specification, it should be understood that the inventor wasn't using scanning in that sense and instead was using it just to be a capturing with a camera.

[00:30:57] Speaker 01:
Exactly.

[00:30:58] Speaker 01:
So to be clear, we're not excluding sweeping.

[00:31:02] Speaker 01:
What we're saying is that the image can be taken in any way that's disclosed.

[00:31:05] Speaker 01:
It could be by photograph, et cetera.

[00:31:08] Speaker 01:
So the term scan in the claims isn't intended to be limited only to using sweeping to obtain an image.

[00:31:15] Speaker 01:
And that's the crux of our argument.

[00:31:18] Speaker 01:
With respect to the cashing issue that was raised, the first issue with respect to cashing is the fact that the district court

[00:31:26] Speaker 01:
read into the definition of caching that in a single session at an ATM, a caching system can only provide up to the amount of money that's provided by a check being cached.

[00:31:41] Speaker 01:
A single session at an ATM, however, can involve multiple transactions.

[00:31:46] Speaker 01:
And so while you can cache a check and obtain money against the check, and we don't dispute that caching involves getting money in exchange for a check,

[00:31:54] Speaker 01:
that can be other transactions that take place during the ATM session, which would allow the user to obtain more than the amount of the check.

[00:32:04] Speaker 01:
And that type of transaction is excluded from the claims based on this by the court's construction.

[00:32:09] Speaker 01:
And there's no evidence in the record to support it except the district court's understanding of what check cashing means.

[00:32:16] Speaker 01:
There was no actual proper intrinsic evidence that was relied upon.

[00:32:20] Speaker 03:
Thank you.

[00:32:21] Speaker 03:
We thank both sides.

[00:32:24] Speaker 03:
that case is submitted and then you have a