[00:00:48] Speaker 01: Please proceed. [00:00:50] Speaker 01: May it please the court. [00:00:51] Speaker 01: This appeal is from the district court's findings that the terms ascertain an apparent signature in the continuation patents and transactional operator and claim 15 of the 625 patent are indefinite. [00:01:05] Speaker 04: Can I just ask you a threshold question which maps on to the case we just heard, which is how we define the term validating document and how we view the claim construction issues presented in the first appeal. [00:01:17] Speaker 04: Does that affect [00:01:19] Speaker 04: at all what we do with the appearance signature being indefinite or non-indefinite? [00:01:30] Speaker 04: Is there any relationship between what we were just talking about before in terms of the continuation claims? [00:01:37] Speaker 01: The relationship between them is that in the claims of the 600 and the 948 patent, validating of the document is done by doing [00:01:48] Speaker 01: two or three things depending on how you want to count them. [00:01:51] Speaker 01: One is to review the image of the courtesy amount and review the image of the legal amount on the document. [00:01:58] Speaker 01: And then secondly, to ascertain an apparent signature, all that done to validate the document. [00:02:05] Speaker 01: So the validation of a document, which we believe is defined in the continuation patent as determining that the document meets with the bank's requirements, is done through the process of reviewing courtesy amount, legal amount, [00:02:18] Speaker 01: and ascertaining an apparent signature. [00:02:22] Speaker 01: Now ascertaining an apparent signature in the continuations is done by a processor in the ATM. [00:02:28] Speaker 01: So in the 948 patent, a processor is configured to ascertain an apparent signature in order to validate the document. [00:02:35] Speaker 01: Now looking at the specification for some guidance on what it means to ascertain an apparent signature, as the court noted in the last appeal, there is disclosure in the specification that [00:02:47] Speaker 01: One method of validating a signature is determining that there is a signature present in the document to an accepted... We're not validating the signature, right? [00:02:57] Speaker 04: We're authenticating an apparent signature, right? [00:03:00] Speaker 01: That's correct. [00:03:01] Speaker 01: But the terms validating in this patent are used in different ways. [00:03:07] Speaker 01: And a method of ascertaining an apparent signature is a way of validating the presence of a signature. [00:03:16] Speaker 01: the corresponding disclosure in the patent. [00:03:19] Speaker 01: So ascertaining an apparent signature is determining to a level of accepted level of certainty that there is present in the check of signature. [00:03:31] Speaker 01: So it determines the presence of the signature in a check to an acceptable level of certainty, to an acceptable confidence level. [00:03:38] Speaker 01: That's the disclosure in the specification that corresponds to ascertaining an apparent signature. [00:03:44] Speaker 01: That is one of the validation steps that is disclosed in the patent for validating the document, where validating the document involves... What is the column and line number specifically that you're referring us to right now? [00:03:56] Speaker 01: So firstly, we're in the abstract, where it says validation of the document involves one or more of validating the presence of a signature. [00:04:07] Speaker 01: And then later on in the patent, at column two, this is a 600 patent now, [00:04:18] Speaker 01: Column two, lines 14 through 16. [00:04:21] Speaker 01: Excuse me. [00:04:28] Speaker 01: Column two, beginning at line nine. [00:04:30] Speaker 01: Another significant document validation procedure with respect to checks is determination that a signature is present. [00:04:37] Speaker 01: That is, the check is signed at the signature line. [00:04:42] Speaker 01: And then it goes on going even further. [00:04:43] Speaker 01: It would be helpful to establish some acceptable signature confidence level [00:04:47] Speaker 01: by comparison of the signature against the stored signature. [00:04:51] Speaker 04: Well, isn't that part of the problem there is with regard to indefiniteness? [00:04:55] Speaker 04: I mean, what is an acceptable level of competence that a signature is present? [00:05:03] Speaker 04: You wouldn't say that's subjective determination, right? [00:05:06] Speaker 01: No. [00:05:06] Speaker 04: You claim that it's an objective determination. [00:05:08] Speaker 01: It is, because looking at any accused product, for example, one of ordinary skill in the art would understand [00:05:15] Speaker 01: what the acceptable confidence level is with respect to finding a signature or doing any of the other validation operations because a bank will actually set those parameters. [00:05:25] Speaker 01: Those are parameters that are known and they're described in the patent elsewhere as thresholds that are set by a bank ahead of time. [00:05:34] Speaker 01: And so a bank, for example, a bank that is validating the presence of a signature on a check will have an algorithm to find [00:05:43] Speaker 01: to find the presence of a signature, and then it will associate with that some level of confidence as to whether the signature is there. [00:05:53] Speaker 01: And if the confidence level exceeds... What are the parameters? [00:05:57] Speaker 04: I mean, this is not... If you sign XXX, is that... I mean, you're requiring a cursive sort of signature? [00:06:06] Speaker 01: No. [00:06:06] Speaker 04: There's a wide range in terms of signatures. [00:06:09] Speaker 04: Half the people I know just sign with a mark. [00:06:12] Speaker 04: And that constitutes their signature. [00:06:13] Speaker 04: So I'm having a hard time seeing what will fulfill the acceptable level of confidence. [00:06:18] Speaker 01: The acceptable level of confidence is part of the process that the computer and the processor use to determine whether there is a signature present. [00:06:28] Speaker 01: That is beyond the scope of what the claim covers. [00:06:31] Speaker 01: The claim is not covering the specific procedure [00:06:35] Speaker 01: whereby a bank will determine whether the signature is present. [00:06:40] Speaker 01: The claim only requires that as long as the bank is in fact attempting to determine whether a signature is present, then the bank meets the claim. [00:06:50] Speaker 01: The specific process that the bank uses to determine whether there is a signature present is not claimed. [00:06:57] Speaker 01: That's not required by the claim. [00:06:59] Speaker 01: So as long as the bank actually has a process in place in its ATM, [00:07:05] Speaker 01: to determine the presence of a signature, it meets the claim. [00:07:11] Speaker 01: The claim is not required to answer every question about how to enable it. [00:07:19] Speaker 01: What's happened here is that the arguments that have come in in opposition here by the appellee involve looking at what details are not present in the claim. [00:07:32] Speaker 01: How do we determine what a signature is? [00:07:34] Speaker 01: Can a block be a signature? [00:07:36] Speaker 01: The answer is the bank sets its parameters, and as long as the bank is applying whatever those parameters are to determine whether there's a signature present on the check, then the bank needs to claim. [00:07:59] Speaker 04: I'm going to go on to the next. [00:08:06] Speaker 01: I wanted to address one more issue on the issue of an apparent signature. [00:08:10] Speaker 01: What NCR has done is that rather than construe the entire term ascertaining an apparent signature, which we believe means that the processor will determine the presence of a signature to an acceptable level of certainty, they've decided instead to focus on the word apparent signature as if that is a claim term, as if an apparent signature is a type of signature, and then raise issues about what it means to be apparent. [00:08:37] Speaker 01: The fact is that an apparent signature in isolation is not a term to be construed. [00:08:42] Speaker 01: It's to be construed in the context of the entirety of the term. [00:08:46] Speaker 01: And in that case, an apparent signature doesn't identify some undefined type of signature. [00:08:52] Speaker 01: What it does, the apparent in that claim term, identifies the fact that the bank is not going to be able to determine 100% whether [00:09:01] Speaker 01: a certain mark as a signature. [00:09:02] Speaker 04: So you're saying what's covered within that element is anything that any bank does to satisfy itself that there's a signature on the line. [00:09:10] Speaker 00: That's correct. [00:09:11] Speaker 04: So that could be from some bank which says, well, if I see a dot on the signature line, that's sufficient, to the bank that says that, no, we have a much more sophisticated exam. [00:09:22] Speaker 01: That's correct. [00:09:23] Speaker 04: So you've not detailed anything in the claims in terms of a public notice function. [00:09:27] Speaker 04: what's covered there other than anything a bank does satisfies this, right? [00:09:32] Speaker 01: Yes, Your Honor. [00:09:33] Speaker 01: It's a broad claim. [00:09:34] Speaker 01: I'm not saying that that is not broad. [00:09:37] Speaker 01: If a bank wants to bother to validate a signature field to find just a dot and say that's a signature, that would be a very strange thing for a bank to do. [00:09:46] Speaker 04: So you're claiming the result. [00:09:47] Speaker 04: You're saying this claim encompasses anything that any bank does to get to a particular result is infringing on this claim, right? [00:09:56] Speaker 01: Well, that might be a little broader than what I intend. [00:09:59] Speaker 01: I intend to say that as long as the processor, like in the 948 patent, is configured to determine whether the check is signed, then it meets the claim. [00:10:10] Speaker 01: However it does that, whatever technology, whatever standard it wants to use for a signature, whether it has to be typewritten or personal. [00:10:16] Speaker 04: So anything that gets to a conclusion that satisfies them, not satisfies any objective standard, but satisfies any individual user or bank, [00:10:27] Speaker 04: that would infringe the claim. [00:10:33] Speaker 04: You're claiming kind of a result. [00:10:37] Speaker 04: I don't know if result is the right term. [00:10:38] Speaker 04: But you're saying any bank that does anything to satisfy itself, whether it's essentially nothing, and they just say, we're not going to care about this, we're just going to mark it as done, versus somebody who has this very sophisticated system, they're all infringing on this limitation. [00:10:57] Speaker 01: They're infringing, but this is not a subjective standard of infringement. [00:11:02] Speaker 00: Why did you say yes to that? [00:11:03] Speaker 00: Your claim says the processor has to be configured to review the images. [00:11:07] Speaker 00: So it's not any bank doing anything. [00:11:09] Speaker 00: It's any bank having a computer system with a processor that is comparing the image. [00:11:14] Speaker 00: Now, the nature of the comparison doesn't have to be finely tuned to fall within the scope of your claim. [00:11:20] Speaker 00: But it does have to determine yes or no, there is a signature here. [00:11:23] Speaker 01: That's right. [00:11:24] Speaker 01: That's why this is not subjective. [00:11:26] Speaker 01: You have a processor. [00:11:27] Speaker 01: It's been programmed to look at an image of a check. [00:11:32] Speaker 01: And as long as it does look at the image of a check and return whether or not the signature is present, it infringes. [00:11:40] Speaker 01: That's an objective standard. [00:11:43] Speaker 01: One can discover by looking at any ATM, its documentation, its source code, whatever, that it does in fact ascertain an apparent signature as required by the claim. [00:11:55] Speaker 01: Why don't you move on to the second indefinite? [00:12:00] Speaker 01: The issue of transactional operator, that is found in claim 15 of the 625 patent. [00:12:06] Speaker 01: The transactional operator simply refers to a computer that a person can use at an ATM in order to conduct a transaction. [00:12:16] Speaker 03: Does it include the buttons that are on the ATM machine itself? [00:12:22] Speaker 01: Yes. [00:12:24] Speaker 03: Does it include the display screen? [00:12:35] Speaker 01: No, it includes the buttons and it includes the computer and the processor and the software that's running on the ATM. [00:12:44] Speaker 00: The fact that it took you that long to answer the question sort of [00:12:50] Speaker 00: suggests doesn't make the ambiguity in the term and precisely what the specification discloses that it covers? [00:12:58] Speaker 01: Looking at the specification at appendix 139 and specifically at column 8 lines 43 through 56, there is an embodiment here of a computer that's operated by a user to perform a transaction. [00:13:12] Speaker 01: It includes a keyboard. [00:13:14] Speaker 01: It includes a computer, a processor, relevant software, et cetera. [00:13:19] Speaker 01: So that's an example. [00:13:21] Speaker 01: in the specification of a computer that's used by a user in order to perform a transaction. [00:13:28] Speaker 01: Now. [00:13:29] Speaker 03: How do you know that the transactional operator corresponds to what's disclosed in Columns 9 and 10 here? [00:13:35] Speaker 03: I mean, the word transactional operator isn't a word that's commonly used, right? [00:13:41] Speaker 01: That's correct. [00:13:43] Speaker 01: We have looked at the entirety of the claim term, a transactional operator for operation by the user to perform a transaction. [00:13:49] Speaker 01: And then we've gone to the specification to see whether the inventor provided any guidance as to how it would define the transactional operator. [00:14:00] Speaker 01: What it is that is disclosed in the ATM that corresponds to it. [00:14:03] Speaker 03: Right. [00:14:04] Speaker 03: And why do you think columns 9 and 10 do that? [00:14:07] Speaker 01: Because it provides the keyboard for the user to operate. [00:14:11] Speaker 01: It's a transactional operator, so it includes a keyboard. [00:14:14] Speaker 01: And it includes the logic behind the keyboard, the computer itself, [00:14:18] Speaker 01: which allows the user to then cause transactions to be completed, to be executed by the ATM. [00:14:25] Speaker 01: So it fulfills the requirements for a transactional operator. [00:14:31] Speaker 03: When I looked at the claim construction that you proposed to the district court, I didn't see anything about the buttons in there. [00:14:38] Speaker 03: You just said it sounded as if you were arguing that it was the processor alone. [00:14:44] Speaker 01: I know that the construction that we offered was of a computer. [00:14:49] Speaker 01: I must admit I don't recall the specifics of what the argument was before the district court orally. [00:14:56] Speaker 01: But it's our point of view that while transactional operator is not a commonly used term, that at least the patentee has provided enough information regarding this computer to indicate that it is in fact the computer in the ATM, including the keyboard that allows, that fulfills, and that is sufficient disclosure [00:15:18] Speaker 01: of the transactional operator to avoid an indefinite problem. [00:15:23] Speaker 04: Okay, you've used up most of your rebuttal. [00:15:26] Speaker 04: We'll restore two minutes of rebuttal. [00:15:27] Speaker 04: Thank you. [00:15:28] Speaker 02: Thank you, Your Honor. [00:15:38] Speaker 02: I'll begin with the ascertaining apparent signature. [00:15:41] Speaker 02: The word apparent means that infringing ATMs must not only identify [00:15:46] Speaker 02: actual signatures, but the ATMs must also be capable of identifying, as Capsic puts it, marks that appear to be a signature. [00:15:55] Speaker 02: There's no dispute on this point. [00:15:57] Speaker 02: And the problem is there's no objective measure anywhere in the patent as to what makes a signature appear to be a signature. [00:16:06] Speaker 02: Capsic agrees. [00:16:07] Speaker 02: At page 19 of their brief and just now an argument, they said that's not part of the claim. [00:16:12] Speaker 02: But that's an essential part of the claim because there's no way to have objective scope of the claim term ascertaining an apparent signature unless there's an objective boundary as to what it means to ascertain an apparent signature. [00:16:25] Speaker 02: So the problem here is one of public notice. [00:16:28] Speaker 02: There's no way for an ATM manufacturer to know what ATMs are or are not capable of infringing the claim until you know [00:16:36] Speaker 02: what a third party banks have made the determination as to what their acceptable confidence level or acceptable parameters are. [00:16:43] Speaker 02: So just to use an example, going back to the earlier discussion, if an ATM manufacturer makes an ATM that has the technological capability of distinguishing whether or not there is a dot but no more on the signature line, whether or not that infringes can't be determined from the four corners of the patent. [00:17:02] Speaker 02: It can only be determined if you go around and survey a bank as to whether or not [00:17:06] Speaker 02: there being a dot on the signature line qualifies to that bank in their view as being an apparent signature. [00:17:13] Speaker 02: Another bank that might have a much higher threshold saying that a signature is only one where you can have recognizable characters with certain characteristics like capital letters and multiple words as a signature. [00:17:23] Speaker 03: Why does the specification have to disclose all of those various embodiments if one of the ordinaries from the art would look at the specification and understand that there's many different ways that somebody could do this? [00:17:35] Speaker 02: Well, Your Honor, because for a machine to infringe, the machine has to be capable of ascertaining an apparent signature. [00:17:41] Speaker 02: The question is, what does it mean to ascertain an apparent signature? [00:17:45] Speaker 03: What if it includes that wide gamut? [00:17:49] Speaker 03: It could be anywhere from a dot to verifying that this signature is the one that's on file at the bank. [00:17:58] Speaker 03: Then isn't it just a broad claim? [00:18:00] Speaker 02: Well, no, Your Honor, because you don't know the scope of the claim until you know the decision maker. [00:18:05] Speaker 03: You don't know the scope of the claim, even though it covers anything from a DOT to verifying that the signature is one that's on file at the bank? [00:18:14] Speaker 02: There's nothing in the scope of the claim that says it goes from the DOT to one that's on file with the bank. [00:18:19] Speaker 02: Instead, and CAPSEC's very clear, page 19... Assuming just for a minute, this is my hypothetical. [00:18:25] Speaker 03: Assuming the specification supported that interpretation, is there anything wrong with that interpretation? [00:18:32] Speaker 03: Is it in any way indefinite? [00:18:34] Speaker 02: So we don't think that does, but even assuming that it does, that still would be indefinite because that would just be like the situation that the court addressed in Ray Walter case where there was a claim term of block-like. [00:18:47] Speaker 02: And the court said, well, we know that a block-like term includes things that are actual blocks, but it also includes things that aren't actual blocks that appear to be blocks. [00:18:57] Speaker 02: And so there's a spectrum. [00:18:58] Speaker 02: There's from something that's obviously not a block to something that is obviously a block. [00:19:02] Speaker 02: And the court said, [00:19:03] Speaker 02: using the term block-like doesn't provide enough definiteness because you don't know where on the spectrum all of a sudden the device begins to infringe when something is not a block but sufficiently like a block to become block-like and thus trigger infringement wasn't provided in the context of the patent. [00:19:19] Speaker 02: There has to be, when you're talking, a term of degree. [00:19:22] Speaker 04: So what is the question that needs to be answered? [00:19:26] Speaker 04: What kind of technology a particular bank uses to ascertain it [00:19:30] Speaker 04: or what result the bag is seeking to satisfy itself that this is an apparent signature? [00:19:35] Speaker 02: I think it may well be both, Your Honor, but it's certainly the latter. [00:19:39] Speaker 02: Because in order to have definite bounds on what it means to appear to be a signature, one who is trying to understand what the patent covers must know what kind of technology has the capability of ascertaining what is apparent signature or not. [00:19:53] Speaker 02: So there has to be a way to know whether or not a dot on the check is [00:19:58] Speaker 02: going to be deemed an apparent signature or not. [00:20:02] Speaker 02: And there's no way looking at the patent to make that determination. [00:20:05] Speaker 02: And again, CAPSEC agrees with this. [00:20:06] Speaker 02: CAPSEC says- Well, I understand. [00:20:07] Speaker 00: Maybe that goes to enablement or written description, but I don't see how that goes to indefiniteness. [00:20:14] Speaker 02: I think, again, it's just like the court in Ray Walters, in Datamize, and all these other cases where the court says you can't have a subjective determination by a third party that then bears on claim scope. [00:20:25] Speaker 02: And that's exactly what would happen here because if no bank [00:20:28] Speaker 02: says the dot is ascertaining an apparent signature, then a machine that can identify a dot but nothing else doesn't infringe. [00:20:37] Speaker 02: You can't answer the infringement question until you know what a third-party bank has made the subjective determination as to what the requirements are or what they think an apparent signature is. [00:20:49] Speaker 02: What this claim language, as CAPSEC has interpreted, is it is an apparent signature to a bank or as it appears to a bank. [00:20:57] Speaker 02: And there's no guidance in the claim that puts boundaries as to what a bank might determine an apparent signature to be. [00:21:07] Speaker 02: So again, this is consistent with datamize and interval licensing where the court says we can't turn over claim scope to third party determinations. [00:21:14] Speaker 02: And it's entirely consistent with the courts that look to terms of degree that say when we're on a spectrum, when we're looking at something that is not 100% but not 0%, there has to be for the public notice function [00:21:25] Speaker 02: a fence put around what is actually within the claim scope and what's without the claim scope, and that's just not done here. [00:21:33] Speaker 02: And again, Capsic doesn't see it differently. [00:21:34] Speaker 02: They agree that you can't figure out claim scope until you figure out what a bank has determined their acceptable confidence level or their parameters are. [00:21:42] Speaker 02: Because if no bank, as I said, thinks the dot is a signature, a machine that can identify the dot doesn't infringe. [00:21:50] Speaker 02: There's additionally no extrinsic evidence anywhere that suggests that there's any kind of objective standard [00:21:56] Speaker 02: And as we said, I think this is the exact same problem that the court dealt with in Datamise, in interval licensing, and the same problem the courts looked at in Wright-Walter. [00:22:05] Speaker 02: And I think all of those cases show quite clearly why the public notice function here is just not done. [00:22:10] Speaker 02: And as I open the example with, one who sets out to make an ATM just won't know which ATMs do and don't infringe until they know what a decision the bank has made. [00:22:20] Speaker 02: And the decision the bank makes could change at some point in the future. [00:22:23] Speaker 02: So it just fails the public notice function. [00:22:26] Speaker 02: I'll turn to the transactional operator. [00:22:30] Speaker 02: The term transactional operator, as we described in the brief, as we understand it, there can only be three ways to provide transactional operator definite structure. [00:22:40] Speaker 02: One would be if, using the traditional tools, transactional operator either had a plain meeting, or there's intrinsic or extrinsic evidence that the bear on it, or if the function required or mandated particular kinds of structure. [00:22:55] Speaker 02: or if there was a means plus function analysis, which CAPSEC has disclaimed in the reply brief and will accept them at their word on that. [00:23:02] Speaker 02: But as to the first, there's nothing in the plain language of transactional operator that provides any structure. [00:23:08] Speaker 02: There's nothing in the intrinsic record. [00:23:10] Speaker 02: The words transactional operator is not used anywhere. [00:23:14] Speaker 02: The word operator is used by itself, but it refers to an individual, which is not their construction of this term. [00:23:21] Speaker 02: And there's just no intrinsic evidence. [00:23:23] Speaker 02: In terms of the recited function, [00:23:25] Speaker 02: There's nothing about the function that defines anything that would require a particular structure. [00:23:32] Speaker 02: And to the court's earlier question as to how CAPSEC can go about picking which of the hardware qualifies as the transactional operator and which doesn't, we think that the goods dispensing transaction is a particularly good example. [00:23:48] Speaker 02: So at page, at column 21 of the specification, for example, the patent describes [00:23:55] Speaker 02: the purchasing lottery tickets or stamps using a machine. [00:23:59] Speaker 02: And the various hardware it recites to make these purchases includes a general purpose computer. [00:24:04] Speaker 02: It also includes the keypad buttons, the display screens, as well as a goods dispenser unit. [00:24:09] Speaker 02: And the goods dispenser unit has certain security controls. [00:24:12] Speaker 02: The patent identifies the Asahi Seiko USA Model CD1000 as a potential goods dispenser unit. [00:24:18] Speaker 02: But there's no basis that CAPSEC is offered as to why [00:24:22] Speaker 02: the general purpose computer is in for the transactional operator, but the goods dispenser unit is out. [00:24:28] Speaker 02: And it would seem that the goods dispenser unit is just as important as the general purpose computer. [00:24:32] Speaker 02: There's no way to know what qualifies the transactional operator. [00:24:35] Speaker 02: And CapSec's taken the position that it's not in this other hardware. [00:24:38] Speaker 02: It's only general purpose computer. [00:24:40] Speaker 03: And that's why the district... When I looked at the specification, I was thinking that perhaps the keypads 26 and 27 were the transactional [00:24:48] Speaker 03: operator because they operate, they're described in the specification as operating the transaction options. [00:24:56] Speaker 03: I mean, how do you respond to that? [00:24:57] Speaker 03: Other than the fact that that's not what seems to have been argued by the patent. [00:25:01] Speaker 02: Your honor, I think you could, that could be a construction that that's sensible, but that's not what CapSec has pointed to as the transactional operator. [00:25:08] Speaker 02: They think it's the computer. [00:25:10] Speaker 02: And this is exactly Dr. Chatterjee's analysis. [00:25:12] Speaker 02: You can look at the keypad, you could look at the computer, you could look at the goods dispenser, and you don't know which of these it is. [00:25:18] Speaker 02: And that's where the district court said, I don't know which of these various pieces of hardware actually corresponds to the transactional operator. [00:25:28] Speaker 02: But even if it were the general purpose computer, as CAPSEC contends, for them to be able to claim that the general purpose computer is the device that operates as the transactional operator, I think the court's case law is pretty clear that they have to be able to point to an algorithm that is programmed on the general purpose computer [00:25:46] Speaker 02: such that it becomes a special purpose computer for the purposes of a transactional operator. [00:25:51] Speaker 02: Nowhere in any of their briefs, though, have they pointed us to any algorithm that would convert this general purpose computer into a special device that makes it the transactional operator. [00:26:01] Speaker 02: Certainly not done in any of their briefs, and they can't now try to identify any kind of algorithm. [00:26:06] Speaker 03: They're not relying on 112.6 anyway, right? [00:26:09] Speaker 02: They're not, Your Honor, but if they're not relying on 112.6, it's hard for us to see how they can point to [00:26:16] Speaker 02: the general purpose computer. [00:26:17] Speaker 02: Because the analysis that they've given is to say, we're going to look at the function that the transactional operator performs. [00:26:26] Speaker 02: We're going to look to see where that function is in the specification and then back out and see what structure corresponds to that function. [00:26:32] Speaker 03: Giving them the benefit of the doubt. [00:26:33] Speaker 03: I think they're trying to say that in the claim you see transactional operator and in light of columns nine and 10 in the specification, you should understand that [00:26:42] Speaker 02: that term is referring back to... But that is, in essence, a 112-6 argument. [00:26:48] Speaker 02: Without calling it a 112-6 argument, they want to get the benefit of getting the 112-6 analysis without paying the price of being limited to that disclosed hardware. [00:26:55] Speaker 02: And our submission says it just doesn't work. [00:26:57] Speaker 02: They can't do a 112-6 analysis, not use the label, and therefore avoid having to pay the price. [00:27:04] Speaker 02: That's what their analysis is, but yet they've disclaimed relying on precisely that. [00:27:09] Speaker 02: So we think that's reason enough to reject. [00:27:12] Speaker 02: their contention on transactional operator. [00:27:16] Speaker 02: I'd be happy to answer any questions. [00:27:17] Speaker 02: Thank you. [00:27:31] Speaker 01: I think NCR has, in terms of the ascertaining and apparent signature, confused the issue of [00:27:37] Speaker 01: what standard a bank may use to decide whether there's a signature on a check to whether the claim is clear as to whether a bank would infringe the claim by trying to detect the presence of a signature on a check. [00:27:52] Speaker 01: There's no question that regardless of what standard a bank uses for finding a signature, whether it requires characters or just a line or two, the fact is as long as that bank [00:28:04] Speaker 01: has configured its ATM to look for a signature, it infringes the claim, that is definite. [00:28:09] Speaker 01: There's no question that one of ordinary skill would be able to determine whether the bank is taking the image of the check, is looking at the signature field, is looking for content, and makes a determination as to whether a signature is present. [00:28:23] Speaker 01: That seems to me to be completely objective and there shouldn't be an issue regarding whether that ascertaining an apparent signature is in fact definite. [00:28:35] Speaker 01: We note that in the claim construction process, the district court looked at the same intrinsic evidence that we refer to in our appeal and actually provided a construction of this claim term. [00:28:48] Speaker 01: The district court said that ascertaining an apparent signature is to discover the presence of a person's cursive signature in the signature field. [00:28:56] Speaker 01: Now, we disagree with the cursive part because we believe the signature and we believe the evidence is that. [00:29:02] Speaker 01: And in fact, the district court agreed in its opinion [00:29:04] Speaker 01: signatures can be cursive or not. [00:29:07] Speaker 01: But this indicated that the court was able to look to the intrinsic record to provide a construction at the time. [00:29:13] Speaker 01: We think that while it's not exactly the same as the construction that we had proposed, it is acceptable, notwithstanding, assuming that we could excise the cursive portion. [00:29:24] Speaker 04: But to appreciate that our case law doesn't require it. [00:29:27] Speaker 04: I mean, your argument can't be that because the district court in connection with the Mark [00:29:33] Speaker 04: has hesitation but comes up with some construction that he's precluded later on from them calling it indefinite. [00:29:40] Speaker 01: Yes, Your Honor. [00:29:40] Speaker 01: We don't say that simply because the court construed the claim that therefore it is not indefinite. [00:29:47] Speaker 01: We are saying, however, that this construction is on its face definite. [00:29:51] Speaker 01: It leaves no question as to what ascertaining and apparent signature is. [00:29:55] Speaker 01: And so it appears that if the court is able to look at the intrinsic record and the court is able to provide [00:30:01] Speaker 01: a clear and definite construction of the term, then that would seem to go a long way to show that this is in fact a definite term. [00:30:10] Speaker 04: Thank you very much.