[00:00:08] Speaker 02:
We have five cases on the calendar this morning.

[00:00:12] Speaker 02:
Two patent cases, one from the district court and one from the PTAB.

[00:00:18] Speaker 02:
Two cases from the Court of Federal Claims and one veteran's case which is being submitted on the briefs and will therefore not be argued.

[00:00:28] Speaker 02:
First case is Digital Media Technologies, Inc.

[00:00:32] Speaker 02:
versus Netflix, Amazon, Google.

[00:00:38] Speaker 04:
2017 24 0 8 9 and 10 Mr. Grizzly Good morning may it please the court the district court should be reversed through its failure to conduct a proper step one analysis the district court failed to come up with a specific definition for what the alleged abstract idea was a step one

[00:01:05] Speaker 04:
The district court never analyzed the claim in the exact language of the claim.

[00:01:10] Speaker 04:
It also never looked at the claimed advance over the prior art, despite the evidence of record.

[00:01:15] Speaker 04:
The district court also failed to look at the prosecution history of the 764 patent, which was in record.

[00:01:21] Speaker 04:
It specifically said that the only relevant evidence is the patent, and it did not.

[00:01:25] Speaker 02:
Didn't the court simply subsume step one into its step two analysis?

[00:01:34] Speaker 04:
No, Your Honor.

[00:01:35] Speaker 04:
the court's entire step one analysis.

[00:01:42] Speaker 02:
Simply put, the patent is directed to an abstract idea.

[00:01:46] Speaker 02:
Specifically, it's directed to the abstract idea of delivering content, et cetera.

[00:01:51] Speaker 02:
So it dealt with step one, even if it didn't call it such.

[00:01:59] Speaker 04:
Your Honor, there were two paragraphs for step one in its entirety.

[00:02:05] Speaker 04:
The district court came up with two potential definitions, one from 30,000 feet and another flying closer to the ground, and ultimately concluded in a footnote that at the end of the day, it seems like step one remains an exercise of I know it when I see it.

[00:02:21] Speaker 04:
And there was not the analysis of step one, not in a meaningful way that's required by this court's precedent or even the Supreme Court to look at the claim and look at the advance over the prior art.

[00:02:32] Speaker 04:
Specifically also, Your Honor, on APX 9, page 9 of the order, the judge said that the only relevant factual allegations are those contained in the 764 patent itself.

[00:02:46] Speaker 04:
We submitted the prosecution history similar to the data engine case as an exhibit in our opposition to the motion to dismiss, and the district court completely failed to consider or analyze anything in the prosecution history.

[00:03:00] Speaker 04:
And the prosecution history, certainly in terms of the notice of allowance, the final response that was filed that led to the notice of allowance, all describe and explain the advance of claim one of the 764 patent over the cited prior art, which as I'll get to when we come to step two, specifically Horry and Rump, which were cited during the prosecution.

[00:03:22] Speaker 04:
And the patent office determined the claim was patentable over those two prior references.

[00:03:27] Speaker 04:
The district court completely ignored it

[00:03:30] Speaker 04:
In fact, flat out says on page nine of the order, it's not relevant, because the only relevant facts are the patent itself.

[00:03:41] Speaker 04:
The district court also failed, or as in, also failed, Your Honors, to look at, as the court said in Enfish, to compare claim one of the 764 patents

[00:03:58] Speaker 04:
to any claims in any other cases or decisions that the court has rendered and do a comparison of similarities or differences between those claims.

[00:04:06] Speaker 04:
Didn't do that at all.

[00:04:08] Speaker 04:
And that's one of the stated primary tests for determining whether step one is met.

[00:04:14] Speaker 04:
And that is as well, Your Honor, to your question.

[00:04:17] Speaker 01:
Isn't step one a legal question?

[00:04:19] Speaker 01:
I mean, even if the district court's analysis is fairly cursory, we still have an obligation to look at this and determine whether it's

[00:04:27] Speaker 01:
directed to an abstract idea or not, and therefore whether it's eligible or not.

[00:04:32] Speaker 04:
But Your Honor, to look at whether or not it's eligible or not, the court's precedent says you need to look at whether it's an advance over the prior art.

[00:04:40] Speaker 04:
And you need to look at the claim at a minimum, and all the elements in the claim, and decide whether or not there is an advance or not.

[00:04:48] Speaker 01:
And here we have... I think I just asked you whether it really mattered, since that's a question of law.

[00:04:54] Speaker 01:
whether the district court did it to your satisfaction, or whether we should instead be just arguing about whether it actually is directed to an abstract idea or not here.

[00:05:03] Speaker 04:
Well, I think the overall one-on-one determination, Your Honor, is a question of law.

[00:05:08] Speaker 04:
I think there's precedence at saying that certainly for step two, it's a question of fact.

[00:05:13] Speaker 01:
Well, I thought you were talking about the district court's errors on step one, though.

[00:05:17] Speaker 04:
Yes.

[00:05:18] Speaker 04:
I think you need to look at it.

[00:05:19] Speaker 01:
I don't think there's any precedent that suggests step one is anything but a question of law.

[00:05:24] Speaker 04:
I'm not aware of any, but I think in order to determine whether or not, as a question of law, step one is met or not, you need to look at the advance over the prior art, as the court said.

[00:05:39] Speaker 03:
We can do that, even if you were right that the district court didn't.

[00:05:44] Speaker 04:
Yes, sir.

[00:05:45] Speaker 04:
Yes, your honor.

[00:05:46] Speaker ?:
Okay.

[00:05:46] Speaker 03:
So you've got this path.

[00:05:52] Speaker 03:
says in column four, advantages of the present invention.

[00:05:55] Speaker 03:
And it lists 144 advantages of the present invention, none of which is what you are now claiming is the advantage, right?

[00:06:06] Speaker 04:
No, Your Honor.

[00:06:07] Speaker 04:
I think there are several citations that I could give Your Honor in the specification that talked about the claimed advance in terms of the

[00:06:17] Speaker 03:
I'm talking about you yourself listed advantages of the present invention, 144 advances, and not one of them is the advance that you're claiming now, right?

[00:06:28] Speaker 03:
No, Your Honor, if I understand the question, the specification clearly talks about... Where is the advance that you're claiming now within the list of 144?

[00:06:36] Speaker 04:
The specification, I can give you many sites that talks about... I'll answer my question.

[00:06:45] Speaker 03:
You say,

[00:06:46] Speaker 03:
is a heading that says advantages of the present invention.

[00:06:49] Speaker 03:
And that there are 144 supposed advantages.

[00:06:53] Speaker 03:
Show me where the advantage that you're claiming now is in that list.

[00:06:58] Speaker 04:
Your Honor, throughout them, there are many I'd be happy to point to.

[00:07:05] Speaker 04:
I mean, point to one.

[00:07:06] Speaker 03:
The claim has 12 steps.

[00:07:13] Speaker 03:
No, you've got to answer the question.

[00:07:15] Speaker 03:
There's a list of 144 supposed advantages.

[00:07:18] Speaker 03:
Please tell me where that list includes the advantage that you're claiming now.

[00:07:28] Speaker 04:
Your Honor, I point the court to numbers, advantage number 90, 96, 101.

[00:07:37] Speaker 04:
Which is your best one?

[00:07:39] Speaker 04:
Well, Your Honor, that's my point.

[00:07:41] Speaker 04:
This is a detailed claim with 12 steps.

[00:07:44] Speaker 03:
in a specific sequence, each step is... Don't see that 90, for example, has anything to do with the advantage of 90.

[00:07:55] Speaker 04:
Your Honor, you have steps 132, 133, those speaking about the content license and asymmetric encryption, which is a component of the 12 steps and is in fact what the Patent Office... What you're now claiming the advantage is combining

[00:08:11] Speaker 03:
and encrypting together the content key and the usage parameters, right?

[00:08:16] Speaker 04:
Yes, Your Honor.

[00:08:17] Speaker 03:
Where is that in the list of 144 advantages?

[00:08:22] Speaker 04:
I think there's a, Your Honor, there's a combination of the disclosure of the specifications.

[00:08:27] Speaker 04:
There is not one specific line, I think is perhaps what you're asking.

[00:08:32] Speaker 04:
But the evidence of record that's in the file history, particularly the IPR file history,

[00:08:38] Speaker 04:
is in the testimony of our IPR expert that if you look at, for example, numbers 122, which talks about XML files, 125, which talks about the content key in an XML file, and then you look at 132, 133, in combination to a person of ordinary skill in the art, Your Honor, these points, 139 as well, speak to

[00:09:06] Speaker 04:
A new data structure and how the new data structure, the content license comprising a content key and usage parameters.

[00:09:14] Speaker 01:
What's this specific new data structure you're talking about?

[00:09:18] Speaker 01:
Is it a combination of these different types of encryption and adding user limitations?

[00:09:27] Speaker 04:
The new data structure, your honor, is the content license comprising a content key and usage parameters.

[00:09:33] Speaker 04:
And the PTAB, the Patent Trader

[00:09:36] Speaker 04:
in the IPR proceedings specifically found based on their IPR petition that that content license was new.

[00:09:45] Speaker 04:
It was not in the prior art.

[00:09:47] Speaker 04:
They had a year to pick the prior art they wanted to submit in the IPR.

[00:09:51] Speaker 04:
Pat and Alpha said the addition of the usage parameters was not an insignificant addition by any reasonable standard.

[00:09:58] Speaker 04:
That's the novel new content license, which is the new.

[00:10:03] Speaker 01:
So let me, I'm just trying to

[00:10:05] Speaker 01:
get precisely what you think is the improvement and what's not abstract.

[00:10:10] Speaker 01:
So it's the content license is a new form of content license that combines what?

[00:10:16] Speaker 01:
The usage parameters with?

[00:10:18] Speaker 04:
The content key.

[00:10:20] Speaker 01:
Which is the encryption stuff.

[00:10:23] Speaker 01:
No, Your Honor.

[00:10:23] Speaker 01:
Okay, just the content key then.

[00:10:26] Speaker 01:
So the new license combines usage parameters with the content key.

[00:10:32] Speaker 04:
Yes, Your Honor.

[00:10:33] Speaker 01:
Is there anywhere that it says that's the advantage of this invention?

[00:10:38] Speaker 01:
Or rather, you're just asking us to infer that from 144 different descriptions of specific parts of this?

[00:10:46] Speaker 04:
Your Honor, ultimately, I suppose I am asking you to infer from the couple of points that I had mentioned.

[00:10:54] Speaker 04:
The evidence of record, though, in a Rule 12 context, which should all be construed in favor of DMTI, is that it

[00:11:02] Speaker 04:
teaches a person of ordinary skill in the art.

[00:11:04] Speaker 04:
Are we at step two now?

[00:11:06] Speaker 04:
No, we're not.

[00:11:07] Speaker 01:
Well, I don't understand why you're arguing evidentiary matters to me at step one.

[00:11:11] Speaker 04:
Well, then let me just... The claims are paramount.

[00:11:16] Speaker 04:
And I don't think there's any dispute at all from a non-factual point of view at step one.

[00:11:22] Speaker 04:
The claim is paramount.

[00:11:24] Speaker 04:
And a lot of the cases, it seems to me, are very broad, relatively short claims that have perhaps broader generic language.

[00:11:31] Speaker 04:
and the court has gone to the specification to look at and try to find some of the answers of the questions that you're asking.

[00:11:37] Speaker 04:
Here, you don't have to do that.

[00:11:39] Speaker 04:
The party stipulated the claim constructions.

[00:11:42] Speaker 04:
The PTAP construed the claim terms consistent with what we are proposing to the court today.

[00:11:48] Speaker 01:
Can I ask you this?

[00:11:50] Speaker 01:
Are the usage parameters you're suggesting, have you invented any type of new usage parameters?

[00:11:56] Speaker 01:
Or is that just the rather abstract idea

[00:11:59] Speaker 01:
imposing certain usage parameters on a downstream consumer?

[00:12:06] Speaker 04:
No, Your Honor, the patent has not invented new usage parameters.

[00:12:11] Speaker 01:
And what about, I think the other part you said that was important was the key.

[00:12:16] Speaker 04:
The content key?

[00:12:17] Speaker 04:
Yeah.

[00:12:18] Speaker 04:
The content key.

[00:12:20] Speaker 01:
Is this some kind of new structure, or is this a typical?

[00:12:23] Speaker 01:
No, Your Honor.

[00:12:24] Speaker 01:
So what you're saying is we have two abstract ideas, but you combine two abstract ideas,

[00:12:29] Speaker 01:
that now form a non-abstract idea.

[00:12:34] Speaker 04:
No, you're right.

[00:12:34] Speaker 04:
I don't believe I'm saying that.

[00:12:35] Speaker 04:
I think what we are saying, as the Patent Office found, that no one before had ever put the usage parameters in.

[00:12:42] Speaker 01:
I'm not sure how helpful that is.

[00:12:44] Speaker 01:
I mean, we've said, I think, before that it may be that it's a non-obvious idea, but it can still be an abstract idea.

[00:12:52] Speaker 01:
Just because you come up with a new abstract idea doesn't render it eligible under 101.

[00:13:01] Speaker 04:
Your Honor, I think that if you look at the advance over the prior art... I mean, let me take you right back to Alice.

[00:13:08] Speaker 01:
Nobody had ever done intermediate settlement in the specific way that Alice did over a computer.

[00:13:14] Speaker 01:
It was certainly non-obvious, but that didn't save it from ineligibility under 101.

[00:13:20] Speaker 01:
So the fact that you have a non-obvious combination of two abstract ideas may clear a 103 threshold, but it doesn't answer the 101 question, does it?

[00:13:32] Speaker 04:
Your Honor, I think it does.

[00:13:36] Speaker 04:
Because again, the test is to look at the advance over the prior art.

[00:13:39] Speaker 04:
And if you compare claim one of the 764 patents to other claims in Enfish or BSG, for example.

[00:13:45] Speaker 01:
How would, I mean, if that's the test, then why didn't the Supreme Court uphold the patent analysis?

[00:13:52] Speaker 04:
I don't know, Your Honor.

[00:13:54] Speaker 02:
Counsel, you're well into your butthole time.

[00:13:56] Speaker 02:
You can continue or save it.

[00:13:59] Speaker 04:
I'd like to say that and address stuff to you when I return.

[00:14:02] Speaker 04:
Thank you.

[00:14:04] Speaker 02:
Bagatelle.

[00:14:11] Speaker 00:
May it please the court, Dan Bagatelle.

[00:14:12] Speaker 00:
On behalf of the Apple East with me are my colleagues Matthew Bernstein and Martin Gilmore.

[00:14:17] Speaker 00:
I'd like, if I may, to start with a threshold issue, which is the reliance

[00:14:25] Speaker 00:
of DMTI on the Zatkovich Declaration.

[00:14:28] Speaker 00:
We saw it all through the reply brief.

[00:14:29] Speaker 00:
We've heard it again this morning.

[00:14:31] Speaker 00:
And I want to point out that the Zatkovich Declaration is not in the record on the 101 motion, and any reliance on that has been waived.

[00:14:40] Speaker 00:
It was attached to a supplemental claim construction brief, but as Your Honors have seen, there was no claim construction issue ultimately.

[00:14:47] Speaker 00:
The party has agreed on that.

[00:14:48] Speaker 00:
So they've never submitted any of this evidence from the

[00:14:53] Speaker 00:
IPR in this record for this motion.

[00:14:55] Speaker 00:
And there's a case, a 2008 case from this court, Cygnus Telecom's 536F 1343 at 1351-53, which makes clear you've got to have it in the record on the motion you're challenging on appeal.

[00:15:10] Speaker 00:
In that case, it was a summary judgment motion.

[00:15:12] Speaker 00:
In this case, it's a 101 motion.

[00:15:13] Speaker 00:
But it's not in the record.

[00:15:14] Speaker 02:
What about the argument that the court didn't evaluate step one

[00:15:21] Speaker 00:
I don't think that's correct.

[00:15:22] Speaker 00:
What the district court did was say there are a couple of ways you can characterize it.

[00:15:27] Speaker 00:
This court has done the same, for example, in Amarath.

[00:15:29] Speaker 00:
You can do it at the 30,000 foot level or at a lower level.

[00:15:33] Speaker 00:
And one of the framings was secured content delivery, and the other was delivering content secured with licenses and encryption.

[00:15:41] Speaker 00:
Both of those are abstract ideas.

[00:15:44] Speaker 00:
And as I think Your Honor pointed out, at pages

[00:15:47] Speaker 00:
14 and 15 of the appendix, the district court identified the latter more narrow phrasing as the abstract idea at issue.

[00:15:56] Speaker 00:
It's also in the footnote at appendix 13.

[00:15:59] Speaker 00:
Perhaps he should have done it a fourth time at appendix 10, but we're not grading opinions here.

[00:16:04] Speaker 00:
And as I think you've all pointed out, it's de novo review here.

[00:16:07] Speaker 01:
Do you think those rather general descriptions of what the abstract idea is a fair characterization of what's going on in claim one?

[00:16:15] Speaker 01:
given that the Supreme Court, and I think we have warned, to not overly abstract claims.

[00:16:20] Speaker 00:
Yes, I do.

[00:16:21] Speaker 00:
And if you take a look at the claims from top to bottom, they're about DRM, or digital rights management.

[00:16:28] Speaker 00:
They call for authenticating the user, authenticating the device, sending the content in encrypted form, sending the content key,

[00:16:38] Speaker 00:
uh... sending uh... usage parameters so that you can control how it's used this is all about digital rights management controlling the use of digital content they have this particular rate distinguished this case from feng shan well feng shan had a really new concept you're you're basically doing behavioral based uh... you're checking for viruses this is uh... that was really a new concept is talked about throughout patent

[00:17:05] Speaker 00:
This is nothing like that.

[00:17:07] Speaker 01:
Why isn't the new concept here what your friend says, which is combining the user parameters with the key, I think.

[00:17:14] Speaker 01:
I get the terms wrong, but I think that's what he said.

[00:17:17] Speaker 00:
Well, he does talk about combining the content key with the usage parameters and then encrypting them together.

[00:17:23] Speaker 00:
Well, first of all, it's nowhere to be found in the specification.

[00:17:27] Speaker 00:
It's added 10 years into prosecution in order to overcome an anticipation rejection.

[00:17:32] Speaker 00:
It's nothing on which this patent focuses.

[00:17:35] Speaker 00:
At most, it's an additional wrinkle that you need to deal with at step two.

[00:17:38] Speaker 00:
It's a detail about how this digital rights management is going to occur.

[00:17:43] Speaker 00:
It's not the focus of the claims.

[00:17:46] Speaker 00:
It's a step two issue.

[00:17:48] Speaker 00:
It's never counted as an invention in the specification.

[00:17:52] Speaker 00:
It's never counted as an invention in the prosecution history.

[00:17:55] Speaker 00:
They didn't add any declaration that said, oh, this is the greatest thing, and we added this.

[00:17:59] Speaker 00:
All they did is we can overcome Clemets because we're going to combine these two things.

[00:18:04] Speaker 00:
There's no apparent significance to it.

[00:18:08] Speaker 00:
So I don't think that that is the focus of the invention at step one.

[00:18:12] Speaker 00:
I think it's fair to look at what the purported invention was, whether it's the 144 advantages or something that's more specific in the claims.

[00:18:20] Speaker 00:
You read the claim, and you read it in light of the specification.

[00:18:24] Speaker 00:
Maybe you can read it in light of the prosecution history as well, but there's nothing that suggests that the focus of this invention is the detail on which they're now deciding to focus.

[00:18:33] Speaker 00:
So I think it is a legitimate step two issue if that additional element is something that transforms the claims into substantially more than the abstract idea at their core.

[00:18:45] Speaker 00:
And I don't think for two reasons I would say that it is not a transformative inventive concept.

[00:18:52] Speaker 00:
First is a legal reason.

[00:18:54] Speaker 00:
It's not described in the specification.

[00:18:57] Speaker 00:
And although this court has not addressed the issue because no one has had the nerve

[00:19:00] Speaker 00:
suggest that something not described in the specification can be an invented concept, I would argue that as a matter of law, it cannot be because you cannot claim as an invented concept what you don't describe.

[00:19:13] Speaker 00:
So the second argument is that all they have done is basically done a slight variation on the prior art.

[00:19:19] Speaker 00:
Symmetric and asymmetric encryption were known.

[00:19:23] Speaker 00:
Symmetric encryption of content keys was known.

[00:19:26] Speaker 00:
Asymmetric encryption of the little stuff was known.

[00:19:29] Speaker 00:
Combining

[00:19:30] Speaker 00:
the usage parameters and the content key was known.

[00:19:36] Speaker 00:
All they're saying is it was inventive to combine these two and then asymmetrically encrypt them afterwards rather than doing it separately.

[00:19:43] Speaker 00:
And there's no apparent advantage to that.

[00:19:48] Speaker 00:
You're encrypting the same material.

[00:19:50] Speaker 00:
You're just combining it, then sending it, then breaking it apart.

[00:19:52] Speaker 00:
You've got the same thing at the start.

[00:19:54] Speaker 00:
You've got the same thing at the end.

[00:19:56] Speaker 00:
This is not a transformative

[00:19:59] Speaker 00:
concept that changes this into patent-eligible subject matter.

[00:20:05] Speaker 00:
I'd just like to add that there is no fact issue here.

[00:20:10] Speaker 00:
This isn't Berkheimer.

[00:20:12] Speaker 00:
We don't have anything in the specification that creates any sort of a fact question.

[00:20:18] Speaker 00:
There's no allegations in the complaint that create a plausible argument of this being an inventive concept.

[00:20:26] Speaker 00:
We don't have anything, as I mentioned, in the prosecution history.

[00:20:29] Speaker 00:
Where do I find the prosecution history in the appendix that speaks to the reasons for this amendment?

[00:20:38] Speaker 00:
It's in volume five.

[00:20:40] Speaker 00:
The allowance is at 91.16 to 18.

[00:20:45] Speaker 00:
And the amendment to overcome Clements is at 91.35 and 91.45 to 95.48.

[00:20:56] Speaker 00:
So basically, here's what happened.

[00:20:58] Speaker 00:
10 years into prosecution, they've got a set of claims.

[00:21:02] Speaker 00:
They're rejected as anticipated by Clements.

[00:21:05] Speaker 00:
They put in new language that includes this limitation.

[00:21:10] Speaker 00:
And they say, this does not appear in Clements.

[00:21:16] Speaker 00:
The examiner says, you're right.

[00:21:17] Speaker 00:
It's not in Clements.

[00:21:18] Speaker 00:
It's not anticipated by Clements.

[00:21:20] Speaker 00:
The examiner didn't check to see whether it was in the written description.

[00:21:22] Speaker 00:
But there was no discussion of this being

[00:21:24] Speaker 00:
particularly inventive, it was just saying it is not anticipated.

[00:21:28] Speaker 00:
So there's no real analysis other than to say it's not exactly anticipated by one prior arc reference.

[00:21:35] Speaker 00:
I just don't think that's sufficient to get you past the threshold for a motion to dismiss on 101 grounds.

[00:21:42] Speaker 00:
There's nothing in the intrinsic evidence that suggests that it's inventive.

[00:21:46] Speaker 00:
They're trying to rely on the Zakovich Declaration after the fact in a replied beef on appeal, and that's simply too late.

[00:21:55] Speaker 00:
Your Honor's don't have any further questions.

[00:21:56] Speaker 00:
I'll submit.

[00:21:58] Speaker 02:
Thank you, Counsel.

[00:22:00] Speaker 02:
Mr. Risley has almost two minutes for the bottle.

[00:22:04] Speaker 04:
Thank you, Your Honor.

[00:22:07] Speaker 04:
First, with respect to the Zatkovich Declaration, Your Honor, that is in the final history.

[00:22:11] Speaker 04:
As in data engine, I think it's relevant and fair game.

[00:22:16] Speaker 04:
The District Court in data engine did not consider the prosecution history, and this Court should.

[00:22:21] Speaker 04:
Respect to the timeliness, the defendant submitted it as part of the claim construction brief.

[00:22:27] Speaker 04:
We had a combined claim construction and 101 hearing.

[00:22:31] Speaker 03:
The declaration is in the prosecution history.

[00:22:34] Speaker 03:
Is that what you're saying?

[00:22:36] Speaker 04:
In the entire prosecution history, yes.

[00:22:38] Speaker 03:
No, no, the declaration that you relied on in your reply brief is in the prosecution history.

[00:22:42] Speaker 03:
Did I misunderstand you?

[00:22:45] Speaker 04:
Yes, I think that the IPR record is part of the prosecution history of the 764 pad.

[00:22:50] Speaker 04:
It is not part of the original

[00:22:52] Speaker 04:
prosecution history, if that's your question.

[00:22:57] Speaker 04:
In fact, the defendants at police filed a motion to stay because they argued to the court that the file history was evolving and the motion to stay was granted until the IPR was concluded so that the court could have the IPR record before it, including the Zakovich Declaration and the PTAB decision finding the claims patentable.

[00:23:19] Speaker 04:
They could have raised this before.

[00:23:21] Speaker 04:
They could have filed a motion with the court.

[00:23:22] Speaker 04:
They didn't.

[00:23:23] Speaker 04:
We think that they've waived it.

[00:23:25] Speaker 04:
They haven't ever raised written description before the district court with respect to this specific claim limitation.

[00:23:31] Speaker 04:
So that's another reason why it's not before the court.

[00:23:44] Speaker 04:
And finally, I wanted to read into the record, Your Honors, that they have cited to the prosecution history, including specifically the IPR record, multiple times in their briefing.

[00:23:55] Speaker 04:
At their red brief at page 41, they cite APX 7832, red brief 43, they cite APX 4737 to 4738, and they cite the IPR decision at length in the red brief at pages 51 through 54, and they argue

[00:24:13] Speaker 04:
that the file history is fair game in the red brief at 12 and at 54 through 56.

[00:24:20] Speaker 04:
So they've certainly relied upon the IPR record as well.

[00:24:23] Speaker 04:
I don't think it's fair for them to pick and choose which portions of the IPR record are fair game versus which aren't.

[00:24:29] Speaker 04:
And finally, if I could just very quickly, if I haven't convinced you on step one, certainly on step two, there's no dispute that there's a gap.

[00:24:38] Speaker 04:
They've admitted that there was a gap.

[00:24:40] Speaker 04:
The district court never considered the exact limitation of the claim.

[00:24:43] Speaker 04:
a content license comprising a content key with these usage parameters, it's asymmetrically encrypted.

[00:24:49] Speaker 04:
That's the exact limitation that PTAB found was not an insignificant addition by any reasonable standard.