[00:00:00] Speaker 04: I might do better on the cases than my seating arrangement. [00:00:04] Speaker 04: All right, but before we begin our proceedings this morning, I'm going to turn it over to Judge O'Malley for a motion. [00:00:11] Speaker 05: I have the privilege this morning of moving the admission of Matthew Samuels, who is a member of the bar and is in good standing with the highest court of California. [00:00:21] Speaker 05: I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications. [00:00:27] Speaker 05: In fact, I have [00:00:29] Speaker 05: intimate knowledge of his credentials because he is my current law clerk. [00:00:34] Speaker 05: When Matthew first came to see me now almost many years ago, he was a brilliant, brilliant student then at Stanford Law School. [00:00:43] Speaker 05: And he had been highly recommended to me. [00:00:45] Speaker 05: And because he had gone through school so quickly, I said, you know, maybe you should get some experience first. [00:00:52] Speaker 05: So I suggested he either work for a few years or maybe get a district court clerkship. [00:00:58] Speaker 05: So he decided to do both before coming here. [00:01:00] Speaker 05: He worked at Gibson Dunn. [00:01:02] Speaker 05: He clerked for my good friend Jojo Tarot in California. [00:01:06] Speaker 05: And then at that point, with all that experience under his belt, he was still willing to come clerk for me. [00:01:12] Speaker 05: And it has been my pleasure to have him, to have all of his talents, to have his great humor. [00:01:19] Speaker 05: And he's been a joy to have in chambers. [00:01:21] Speaker 05: So I'm happy to move to the mission. [00:01:25] Speaker 04: Um, well, I'm delighted to grab the motion and congratulate you from the bench. [00:01:33] Speaker 01: Thank you. [00:01:34] Speaker 01: Do you solemnly swear or affirm that you will comfort yourself as an attorney and counselor of this court, uprightly and according to law, and support the Constitution of the United States of America? [00:01:43] Speaker 01: I do. [00:01:44] Speaker 01: Weapon to the bar, United States Court of Appeals, by the Federal Circuit. [00:01:48] Speaker 01: You're welcome. [00:01:49] Speaker 04: Congratulations. [00:01:51] Speaker 04: The first case for argument this morning is 171162, Google versus personal audio. [00:01:58] Speaker 04: Mr. Bagatell, whenever you're ready. [00:02:04] Speaker 00: May it please the court, Dan Bagatell on behalf of Google with me are my colleagues Matthew Nicholson and Lane Polozola. [00:02:10] Speaker 00: This case involves two patents on an audio program player with a sequencing file and quote unquote simple navigational commands [00:02:19] Speaker 00: The simple navigational command on direct appeal is the BAT command, which was not new. [00:02:24] Speaker 00: The reference on which we were relying goes back to 1983 and described not only a BAT command, but a BAT command that went back to the beginning of either the previous file or the current file, depending on the passage of a predetermined amount of time. [00:02:38] Speaker 00: As you've seen in the briefs, no real dispute about how this Inazawa patent operated. [00:02:43] Speaker 00: The question is whether the claims covered that operation. [00:02:46] Speaker 00: There are two issues, the first being what we call the reset or seek time issue that affects all the claims and then there's a single back command issue that deals with just one claim. [00:02:56] Speaker 04: I think I understand your argument. [00:02:58] Speaker 04: I mean there is sort of an instinctive appeal sort of what's the big deal and what's the difference and would any user ever care about the distinction. [00:03:06] Speaker 04: But there is a distinction, is there not? [00:03:08] Speaker 04: I mean the double press in the prior art [00:03:12] Speaker 04: was calculating the time between the pressing of one and the pressing of the second button. [00:03:18] Speaker 04: And it's different in the claim. [00:03:19] Speaker 04: The claim is dependent on the amount of time that has elapsed in terms of audio play, right? [00:03:27] Speaker 00: No, I actually disagree with that. [00:03:28] Speaker 00: And I think that's a critical point. [00:03:30] Speaker 00: What the claim language says is discontinue reproduction and continue reproduction at the beginning of either file, depending on whether the currently playing file has played for a predetermined amount of time. [00:03:41] Speaker 00: Has played is an ambiguous term. [00:03:43] Speaker 00: We talk about playing a record or a CD or a DVD, and we talk about that from when we hit the play button. [00:03:50] Speaker 00: It may also have a meaning that could talk about the amount of time that the sound has come out of the speaker. [00:03:56] Speaker 00: But the claims actually discuss both continuing the reproduction and playing, and they do it distinctly. [00:04:00] Speaker 00: More importantly, you look at the specification, the only description of timing in this patent. [00:04:06] Speaker 05: You said has played is ambiguous. [00:04:07] Speaker 05: Did you ask for a construction of the phrase has played? [00:04:10] Speaker 00: No, we didn't directly ask for that. [00:04:12] Speaker 00: We applied some of the constructions that had been used in the district court case. [00:04:16] Speaker 00: But it came up, obviously, during the course of the case. [00:04:19] Speaker 05: And the Board of Visitors... Well, and even in the district court case, that district court disagreed with your view that has played could be something other than that amount of time that the playing had gone on. [00:04:30] Speaker 00: I don't think so, Your Honor, because I think the district court's construction is very similar to the claim language. [00:04:36] Speaker 00: I don't think it was resolved in the district court. [00:04:38] Speaker 00: In fact, it really didn't come to a head, so to speak, until oral argument, when really this issue crystallized of whether the reset time could be included. [00:04:48] Speaker 00: And our point really depends heavily on the specification. [00:04:50] Speaker 00: I'd urge your honors to take a look at figure three, because a picture is worth 1,000 words in this case. [00:04:56] Speaker 00: Figure three of the patent is [00:05:00] Speaker 00: Which... Either one. [00:05:02] Speaker 00: 178 is fine. [00:05:03] Speaker 03: I guess the figures are identical. [00:05:04] Speaker 00: Yeah, page 51 of the blue brief would be one of many examples. [00:05:10] Speaker 00: If you look at box 267, it says record segment end and new start. [00:05:18] Speaker 00: That is the place in the patent where the timer is clocked. [00:05:22] Speaker 00: And it explains that in column 15, which refers to box 267 as recording the start time of [00:05:29] Speaker 00: that file. [00:05:30] Speaker 00: That is the only place in the patent where you clock the beginning of playback. [00:05:35] Speaker 00: That occurs before box 269, which is entitled reset to next segment start. [00:05:40] Speaker 00: So the clocking begins before the reset occurs. [00:05:44] Speaker 05: It may be... What exactly would your has played language have to mean for Inazawa to teach it? [00:05:52] Speaker 00: Well, in our view, at least it would need to cover the preferred embodiment, the sole preferred embodiment in the patent. [00:05:58] Speaker 00: We are not saying that it excludes a calculation in which it would run from the beginning of audible sound or the reproduction of sound, if you will. [00:06:06] Speaker 00: But it certainly should not exclude the preferred embodiment, which refers to clocking and then doing the reset. [00:06:14] Speaker 03: Well, now, 267 is, as I understand it, correct me if I'm wrong on this, is recording the start and stop times in the log file. [00:06:27] Speaker 03: Yes. [00:06:28] Speaker 03: Why is it not the case that the playback time is different from a log file? [00:06:34] Speaker 00: Because that's the only calculation of playback time that's talked about in the patent anywhere. [00:06:39] Speaker 00: There's no discussion of any other clocking in the patent. [00:06:41] Speaker 00: We've read through it. [00:06:42] Speaker 00: We can't find any other reference to any other calculation. [00:06:45] Speaker 00: Got to remember, this reset time is really infinitesimal and pretty much unrelated to the importance of the predetermined amount of time. [00:06:52] Speaker 00: I guess it depends on the particular device, but in modern times. [00:06:56] Speaker 03: Modern devices, it's infinitesimal. [00:06:58] Speaker 03: It didn't used to be. [00:06:59] Speaker 00: Yes, but even in 1983, you were probably talking about maybe a second. [00:07:03] Speaker 03: And the point of the predetermined amount of time is that... But a second is not negligible if the predetermined time is a second and a half or two seconds. [00:07:13] Speaker 00: No, no, no. [00:07:14] Speaker 00: Perhaps, but the point of the predetermined amount of time is to make a distinction between when do you go to the beginning of the current file and when do you go to the beginning of the previous file. [00:07:22] Speaker 00: And the only explanation of that in column 15 or anywhere in the patent is basically you make an assumption about whether if they hit it relatively early on in during playtime, you want to go back to the beginning of the previous file. [00:07:36] Speaker 00: Otherwise, you go back to the beginning of the current file. [00:07:39] Speaker 00: That has very little to do with whether some tiny fraction of a second or maybe even a full second, because that's just got nothing to do with the predetermined amount of time in terms of its significance in the patent. [00:07:49] Speaker 00: But again, I think our main point here is that the plain [00:07:52] Speaker 00: language of the claim does not specify what has played mean. [00:07:56] Speaker 00: It actually talks about both playing and reproduction of sound. [00:08:01] Speaker 00: It doesn't equate the two. [00:08:02] Speaker 00: Neither does the courts and the board's construction. [00:08:08] Speaker 00: And the preferred embodiment is exactly the way it is in Inazawa. [00:08:11] Speaker 00: If you agree with us on that, I don't think you need to reach the T3. [00:08:14] Speaker 03: When you say preferred embodiment, you're talking about Figure 3. [00:08:16] Speaker 00: Figure 3, the only one. [00:08:17] Speaker 03: And this depends on your argument that the log file times [00:08:22] Speaker 03: determine the playback time? [00:08:25] Speaker 00: Well, it says recording the start time in the log file. [00:08:29] Speaker 00: So the start time is the start time. [00:08:31] Speaker 00: Start time of what? [00:08:33] Speaker 03: Start time of actual playback or start time of playback plus something else. [00:08:41] Speaker 00: Well, the only thing that's calculated in the patent, and that's what apparently we're referring to, is the predetermined amount of time that something has played. [00:08:48] Speaker 00: And as I've tried to explain, that has played can include [00:08:52] Speaker 00: how long it's been since you've hit the play button, not just how much time has it been coming out of the speaker or has it been reproduced in the circuitry somewhere. [00:08:59] Speaker 00: It's at least ambiguous. [00:09:01] Speaker 03: If there were a five second delay, then intuitively the term has played and I punch a button and I wait five seconds and then the song begins [00:09:15] Speaker 03: I would not think that that song has been playing for the entire period of the song plus five seconds. [00:09:20] Speaker 03: Intuitively, that does not seem right. [00:09:22] Speaker 00: Perhaps. [00:09:23] Speaker 00: And we're not trying to exclude that construction. [00:09:26] Speaker 00: We're simply saying that the claim has to at least encompass what's shown in the only preferred embodiment, the only embodiment in the patent. [00:09:34] Speaker 00: Our point is that the term is at least ambiguous. [00:09:36] Speaker 00: And why would you read it to exclude the way the patent does it in figure three? [00:09:39] Speaker 00: Again, that's the only place where they record the start time. [00:09:45] Speaker 00: So if you agree with us on that point, then you wouldn't need to reach the T3 minus T2 issue. [00:09:50] Speaker 00: We've raised that as an alternative. [00:09:52] Speaker 00: That is something that came up at the hearing. [00:09:53] Speaker 00: We explained why T3 minus T2 excludes T2, which is that seek time. [00:09:58] Speaker 00: But I'm hoping that you will not need to reach that. [00:10:00] Speaker 00: In my remaining time on the direct appeal, I'd like to turn to that single back command issue, if I may. [00:10:06] Speaker 00: And again, I think a picture speaks a thousand words. [00:10:10] Speaker 00: If you could take a look at figure two of [00:10:14] Speaker 00: For example, on page 39 of the blue brief, it's in several different places. [00:10:20] Speaker 00: Any one of those examples will do. [00:10:22] Speaker 00: We think this affects only claim two of the 076 patent. [00:10:25] Speaker 05: That's the only claim that requires a single back command as opposed to A, which normally... So what do you think happens in the 076 patent when the back key is pressed once before the predetermined amount of time? [00:10:39] Speaker 00: Okay. [00:10:40] Speaker 00: So basically, if you look at the orange press at the beginning of figure 2A, [00:10:45] Speaker 00: That's when it goes into this reverse program selection mode. [00:10:48] Speaker 00: And it moves to the start of track N, and it starts the timer. [00:10:51] Speaker 00: None of this is disputed. [00:10:53] Speaker 00: So if nothing happens during that T3 period, it times out. [00:10:58] Speaker 00: It basically goes back into normal mode. [00:11:00] Speaker 00: And if that happens, and you press it just after that T3 predetermined amount of time in red, then you re-enter a reverse program selection mode, and you move to the beginning of track N. The pattern refers to it as being the same as the first [00:11:15] Speaker 00: press. [00:11:17] Speaker 00: It is another press, but the movement is in response to that last one because the first one timed out. [00:11:22] Speaker 00: If there is an intervening button press during that T3 period, a second press, then it moves to the beginning of track N minus 1. [00:11:30] Speaker 00: That matches claim 3 exactly. [00:11:34] Speaker 00: It matches claim 2 exactly because if there is no press during T3, then it moves to the beginning of track N. If there is a press before T3, it goes to the beginning of N minus 1. [00:11:43] Speaker 05: Where in the 076 do you see this whole setting the timer stuff occurring? [00:11:51] Speaker 05: Starting the timer stuff occurring? [00:11:52] Speaker 05: I mean, it's simply, you know, I don't see a reverse program selection mode as you're discussing. [00:12:01] Speaker 00: Oh, oh, well, I think now you're getting back to the timing. [00:12:04] Speaker 00: The two patents are identical specifications. [00:12:06] Speaker 00: The issue of the reset time is identical in the 076. [00:12:08] Speaker 00: In fact, they're, figure three is the same. [00:12:13] Speaker 00: Column 15 is just adjusted by a few lines. [00:12:16] Speaker 00: So again, our point is that at least the term has played is ambiguous as to whether you're talking about actual reproduction of audible sound or queuing it up, including the tiny little bit of time that it's going to take in a modern MP3 tater. [00:12:32] Speaker 00: I mean, it really is a trivial amount of time before you have the playback. [00:12:38] Speaker 00: So just repeating on claim two of the 076, that's basically a single algorithm that matches exactly. [00:12:48] Speaker 05: But I guess my concern is, doesn't Inazawa require the reverse selection program mode? [00:12:59] Speaker 05: Basically Inazawa... And where is that in the 076? [00:13:01] Speaker 00: No, Inazawa defines reverse program selection mode as when you hit the back key. [00:13:07] Speaker 00: And we're not disputing that the timer in Inazawa begins with the press of the back key. [00:13:13] Speaker 00: Our point is that the queuing of the song occurs at that point. [00:13:17] Speaker 00: It includes that reset time, T2. [00:13:20] Speaker 00: And so we are arguing that the reset time can be included in T3. [00:13:25] Speaker 00: It's within the scope of the claims. [00:13:26] Speaker 00: And even if you disagree on that, then Inazawa at least disclosed [00:13:31] Speaker 00: both T3 and T2, and you can look at that predetermined period, T3 minus T2, and call that your predetermined period. [00:13:37] Speaker 00: Either way, it discloses it. [00:13:39] Speaker 00: I don't think Inazawa focused on T3 minus T2, but the question is, what did it disclose? [00:13:44] Speaker 00: And it certainly disclosed that time period, and we know it had to be predetermined, because T3 as a whole is predetermined, and the other component of T3 is T1, which is a fixed number, one and a half or two seconds. [00:13:54] Speaker 00: So the complement also has to be predetermined. [00:13:58] Speaker 00: I'll reserve the rest of my time for if I may. [00:14:02] Speaker 03: Well, P2 you say is predetermined? [00:14:07] Speaker 00: Yes. [00:14:08] Speaker 03: And yet, it's variable. [00:14:11] Speaker 03: Your argument is that it's not fixed. [00:14:14] Speaker 03: It can be determined because even though it's variable, you can ascertain how long it's going to be. [00:14:21] Speaker 03: But the question is, does that constitute predetermined? [00:14:24] Speaker 00: Yes, I think predetermined in this court's cases means determined beforehand. [00:14:29] Speaker 00: You mean determinable. [00:14:31] Speaker 00: Well, actually, if you look at the Homeland Housewares case that we cited in our brief, it doesn't have to be actually determined for each blender, for example, in that case. [00:14:38] Speaker 00: It's basically formulaic. [00:14:40] Speaker 03: OK. [00:14:42] Speaker 03: The product of a formula, which is a known formula, is what you're saying is a predetermined time. [00:14:48] Speaker 00: Correct. [00:14:48] Speaker 03: All right. [00:14:50] Speaker 02: Thank you. [00:14:52] Speaker 02: Your Honor, may I please support? [00:14:56] Speaker 02: OK. [00:14:56] Speaker 02: I just want to address this whole idea [00:14:59] Speaker 02: the specification is teaching, that the steps of Figure 3 is how a predetermined amount of time is being determined in this patent. [00:15:09] Speaker 02: Now, they rely on, when you look at Figure 3, they're relying on the fact that a timer is set on Step 267, then a reset occurs, and then it says continue playback. [00:15:19] Speaker 02: Well, what's very clear here is that continue playback is a different step than 269 and 267, since there's no reason to infer [00:15:29] Speaker 02: from this that the usage of playback would include these steps. [00:15:34] Speaker 03: But more importantly... Well, Mr. Begatel contests that proposition, and he says, no, the only reference to the start of the timing is a reference that refers to 267. [00:15:49] Speaker 03: So what's your answer to that? [00:15:50] Speaker 02: Well, there's a very clear answer to that, is that nowhere does it say that step 267 [00:15:57] Speaker 02: is used for determining the amount of time that the song is playing. [00:16:02] Speaker 02: In fact, they don't point to anything in their response that says that. [00:16:08] Speaker 02: What they do do, and I want to draw this attention to the reply brief on their site to the 178 patent, column 1264 through 66. [00:16:22] Speaker 02: And if we can get to the 178 patent, I think this paragraph is highly illuminating to this issue. [00:16:29] Speaker 02: And when we get there, I'll start reading. [00:16:31] Speaker 02: They cite this course each time. [00:16:34] Speaker 03: Where are you reading? [00:16:34] Speaker 02: It's the appendix 153, which is the 178 patent. [00:16:41] Speaker 02: And I'd like us to get the column 12, 1964 through 66. [00:16:47] Speaker 02: And they cite that for the first time in the reply brief on page 10. [00:16:53] Speaker 02: Let's look at what this part of the specification says. [00:16:58] Speaker 02: And if you could nod when you get there, I can start. [00:17:02] Speaker 02: OK. [00:17:02] Speaker 02: What they cite is, each time the playback begins a new programming, advertising, or announcement segment, the segment start time is recorded in the usage log. [00:17:13] Speaker 02: Now, nowhere does that's- Well, you're on column 12. [00:17:15] Speaker 02: Column 12. [00:17:16] Speaker 02: Line 64. [00:17:18] Speaker 02: OK. [00:17:19] Speaker 02: It says this right here. [00:17:22] Speaker 02: This statement, and I'll start over again to make sure we're all there. [00:17:26] Speaker 02: Each time the Playvic begins a new programming, advertising, or announcement segment, the segment start is recorded in the usage log. [00:17:35] Speaker 02: That's what they cite to you. [00:17:36] Speaker 02: Now this does not say anywhere that this timer is being used for the amount of time the song is played. [00:17:43] Speaker 02: If you keep reading just a few lines forward in this passage that they're referring to, [00:17:50] Speaker 02: you will eventually get to column 13, line 8. [00:17:55] Speaker 02: And here the patent talks about using time for purposes of the cost in a billing functions that the usage log is generally referenced as being used for. [00:18:07] Speaker 02: And I just want nets found at column 13, line 8, they start referring to actual cost per unit of time. [00:18:17] Speaker 02: Let's go a little bit farther, because here's where we get to the critical point. [00:18:22] Speaker 02: The step 267 of recording of end times is described further. [00:18:27] Speaker 02: You will eventually get to column 13, lines 12 through 19. [00:18:33] Speaker 02: And this is what it says. [00:18:36] Speaker 02: Note that it is not unnecessary to record the end time for the prior segment, since it's the same value as the start time [00:18:46] Speaker 02: for the next segment. [00:18:49] Speaker 02: Well, that's critically important here because they're not actually measuring the end time in this usage log. [00:18:54] Speaker 02: They're measuring the start time. [00:18:56] Speaker 02: Well, if the start time is after the reset has already occurred and the new song has begun playing, so whatever's happening in this usage log, it can't be used to determine the pre-amount of time that the song is played for purposes of determining where the reset point is. [00:19:13] Speaker 02: I want to make this very clear. [00:19:15] Speaker 02: The end time that's recorded in this usage log is measured by the start time of the next segment. [00:19:22] Speaker 02: So that end time could not be used to determine the reset point of the explicit recited function here. [00:19:29] Speaker 02: OK. [00:19:30] Speaker 05: So in terms of the predetermined amount of time, do you agree that has played is ambiguous? [00:19:36] Speaker 02: No. [00:19:37] Speaker 02: I think it's absolutely clear. [00:19:39] Speaker 02: The ordinary playing meaning is when the song is playing. [00:19:41] Speaker 02: Also, when you look at step 235, there's a continued playback step. [00:19:46] Speaker 02: That doesn't include the reset time. [00:19:47] Speaker 02: That's another indicative of what that means. [00:19:50] Speaker 02: It means when the song is playing. [00:19:52] Speaker 02: And of course, they're saying you need a timer, but this isn't even a timer. [00:19:56] Speaker 02: It's just a recording of the start time. [00:19:58] Speaker 02: You don't need a timer for this. [00:19:59] Speaker 02: As long as CDs go down, the amount of time is indicated in the time sequence information of the video itself. [00:20:07] Speaker 02: And what this patent does say, determining the current playback position, can be determined by a variety of means. [00:20:15] Speaker 02: If we search that language, we'll find that I could give you a direct site for that. [00:20:18] Speaker 02: So there's nowhere there's any linkage of a timer to do these kinds of things, nor would one skilled viewer need to do these things, because digital media has this information already in it. [00:20:28] Speaker 02: And there's also references throughout the patent about this. [00:20:31] Speaker 02: There's also time indicators measured in here. [00:20:34] Speaker 02: So this is an entirely false statement, or at least unsupported statement, that this timer thing here is even a timer. [00:20:42] Speaker 02: It's just a recording of the start time. [00:20:44] Speaker 02: and that that's used for purposes of the skip back function. [00:20:47] Speaker 02: What does 267 actually do? [00:20:50] Speaker 02: Well, some of the things that are done in the usage log, it tells you when it's done, OK? [00:20:56] Speaker 02: And what it is is recording a clock time. [00:20:59] Speaker 02: Now, I presume we could have date information that would be necessary to determine the billing function of it. [00:21:04] Speaker 02: The usage logs are also used. [00:21:05] Speaker 02: Right, so it's measuring time, but what time of what? [00:21:09] Speaker 02: Well, it doesn't say. [00:21:11] Speaker 02: and these particular different references here. [00:21:13] Speaker 02: It says segment end and new start. [00:21:15] Speaker 03: But I need more information about what exactly that means. [00:21:21] Speaker 02: The segment end and segment start, it actually doesn't measure the end. [00:21:26] Speaker 02: It's just measuring starts because of the passage I just read. [00:21:29] Speaker 02: It says record segment end, which is the same as the start. [00:21:33] Speaker 02: So it's actually not measuring the start. [00:21:35] Speaker 02: It's not a timer. [00:21:37] Speaker 02: What it's doing is measuring each new start time [00:21:40] Speaker 02: and it presumes the end time is the same as the start time, which wouldn't be used for this skip function. [00:21:47] Speaker 02: But one of the things the billing function does is you use that to determine overall session links. [00:21:51] Speaker 02: And the overall session links are used to construct new programs. [00:21:55] Speaker 02: They're also used for billing purposes. [00:21:57] Speaker 02: They're also used by the song recommendation. [00:22:00] Speaker 02: All these things are a furrow of disclosure for this type of timer. [00:22:03] Speaker 02: Nowhere does it link it, this timer, [00:22:07] Speaker 02: to the particular function to determine the amount of time a song is played for skip-back purposes. [00:22:14] Speaker 02: And again, as the passage I just showed you, it would be inadequate for that purpose because it uses the start time of the next segment, which naturally only occurs after the reset point has already been terminated. [00:22:35] Speaker 02: And so anyway, we cut it. [00:22:37] Speaker 02: includes a time period that the song is not playing, so T3 does not meet the explicit language of the claim. [00:22:44] Speaker 02: T3 minus T2 is a red herring, because T3 minus T2 is not disclosed for determining the reset point. [00:22:51] Speaker 02: T3 is. [00:22:52] Speaker 02: You can't have it both ways. [00:22:53] Speaker 02: And of course, T3 minus T2 is never calculated, therefore never determined, much less predetermined. [00:23:00] Speaker 02: And it can't even be predetermined [00:23:03] Speaker 02: Because T2 varies depending when the button is pressed. [00:23:05] Speaker 02: And at least in the disclosures of this combination, there's no way to estimate that or determine that. [00:23:11] Speaker 02: So there's just simply no basis for any error. [00:23:14] Speaker 02: There's nothing here that departs from the ordinary meaning that a song is played would include the time the song was played. [00:23:20] Speaker 02: And they talk about devices and measuring it from the play button. [00:23:23] Speaker 02: It actually never measures it from the play button, even in our normal parlance of the word today. [00:23:33] Speaker 02: If you press the play button, you'll see that the timer, the elapsed timer of play, doesn't start until the song actually starts playing. [00:23:41] Speaker 02: So it's never, even in today's CD players or these things that he was trying to describe that it's measured from the button press, it's not measured from the button press. [00:23:49] Speaker 02: It's actually measured from when the audio sequence file starts playing and the sequence information is read from that. [00:23:56] Speaker 02: And the patent explicitly states there's a variety of means for determining the current playback position. [00:24:02] Speaker 02: And I think you can find that in column 12, lines 41 through 64. [00:24:08] Speaker 02: And they also talk about time indicator throughout, and that's later that same paragraph. [00:24:15] Speaker 02: And of course, all this would be in the normal knowledge of the one skilled in the art. [00:24:19] Speaker 02: When talking about this particular algorithm, there's no mention of step 267 in the patent or this timer. [00:24:25] Speaker 02: It just says, [00:24:28] Speaker 02: that you would use the amount of time the song is played. [00:24:31] Speaker 02: When you look up the word predetermined time, there's no reference to 267. [00:24:35] Speaker 02: And of course, that teaching is sufficient for someone to employ the normal way this would be done. [00:24:41] Speaker 02: Look at the time sequence information in that video to determine that. [00:24:45] Speaker 02: And the timers are disclosed for a whole bunch of different functions. [00:24:48] Speaker 02: So I don't think they've shown any basis at all that PTAB has made an error. [00:24:54] Speaker 02: If you're going to try to reach your cross appeal, you're running out of time. [00:24:57] Speaker 02: OK. [00:24:57] Speaker 02: Oh, yes. [00:24:58] Speaker 02: All right. [00:24:59] Speaker 02: So Your Honor, let's talk about Claim 14. [00:25:04] Speaker 02: The Claim 14 is a claim that referenced the GO command. [00:25:12] Speaker 02: Claim 14 explicitly requires of the 178 patent, a first command and a second command. [00:25:23] Speaker 02: And we're going to talk about the GO command in general, but I think Claim 14 crystallized the issues. [00:25:28] Speaker 02: There are two explicit separate commands there, one for go and one for skip. [00:25:34] Speaker 02: And the difference between the go command is that go command jumps to any song selected by a listener on the visible menu, on a menu. [00:25:44] Speaker 02: The skip command, what it does is the system looks at the sequencing file and determines the next song of the appropriate lock type, and then you advance to that. [00:25:56] Speaker 02: Now, the functional limitation here is listener selected versus scanning the sequencing file of the corresponding structure to advance to the next song of the appropriate block type. [00:26:11] Speaker 02: There are two separate commands. [00:26:14] Speaker 02: The specification describes the skip command and go command differently. [00:26:18] Speaker 02: And the claim language is different. [00:26:21] Speaker 02: And the corresponding structure is different than all three of these things. [00:26:25] Speaker 02: Yet the PTAP found this claim 14 in all go commands invalid based on disclosure of the find next command found in the chase reference. [00:26:37] Speaker 02: The find next command functionally, not algorithmically, but functionally is the same as what we understand as a skip command. [00:26:44] Speaker 02: Well, this is clear error because what is not being disclosed there is jumping into a listener selected file as explicitly [00:26:55] Speaker 02: described. [00:26:55] Speaker 05: How do you address the paragraphs 184 and 186 of Chase where the control keys are taught? [00:27:05] Speaker 05: Doesn't that show that there is an ability to do the commands? [00:27:12] Speaker 02: It teaches using the up and down arrows? [00:27:14] Speaker 02: By pressing the buttons. [00:27:16] Speaker 02: But pressing the buttons is not the algorithmic step that's actually found in the patent. [00:27:22] Speaker 02: The patent says [00:27:24] Speaker 02: that you find the listener selected with respect to the go command, the corresponding structure, is you look for the listener selected file that's been selected on the visual menu, and you fetch and display it, and you alter the current play variable. [00:27:38] Speaker 02: Pressing those buttons never hops to a listener selected position. [00:27:43] Speaker 02: All it does instead is go to positions that are selected by the algorithm. [00:27:48] Speaker 02: And that would be the next song in the sequence of the appropriate lock type. [00:27:53] Speaker 02: In those situations, the listener doesn't even know what they might jump to, because some of this stuff is subject skipping, topic skipping, and highlight skipping. [00:28:01] Speaker 02: It's not something you would necessarily know in your head. [00:28:04] Speaker 02: You do not necessarily know where you're going to next when you use this skip function in the pattern. [00:28:11] Speaker 02: So you can't say the step of jumping to a listener-selected position is found in the skip commands. [00:28:19] Speaker 02: And here, the go commands. [00:28:23] Speaker 02: explicitly the corresponding structure, the function explicitly requires you to do that. [00:28:29] Speaker 02: They're very different things. [00:28:31] Speaker 02: And I think I'm getting very close on time, but I think what's really important about that is this, regardless of whether you agree with me, that the go and skip, that the skip command or basic skipping discloses the go command. [00:28:46] Speaker 02: But when you look now at every given structure, I don't believe that's the case. [00:28:49] Speaker 02: There's still error here. [00:28:50] Speaker 02: Because the prior combination only discloses one command. [00:28:54] Speaker 02: And all of the prior art will advance to any song whatsoever. [00:28:59] Speaker 02: Only one command. [00:29:00] Speaker 02: The claims 14 and claims 4 explicitly require two commands. [00:29:05] Speaker 02: A first command and a second command. [00:29:08] Speaker 02: So even if you find a basic skip button discloses a go command, there is no explanation of why we arrive at the resultant claim combination or a motivation to combine the claim [00:29:20] Speaker 02: combination that has two commands. [00:29:23] Speaker 02: There is no reason why they have two commands employed. [00:29:26] Speaker 02: One algorithm can be identical. [00:29:28] Speaker 02: And they've just failed. [00:29:29] Speaker 02: Their combination has not disclosed two commands, even if you think that the go command can meet the skip command. [00:29:36] Speaker 02: And because of that, that is clear error. [00:29:38] Speaker 02: The failure to articulate a motivation, which is completely absent in this opinion, even under the substantial evidence standard, is reversible error. [00:29:47] Speaker 02: Thank you. [00:29:48] Speaker 02: We'll restore a couple minutes of report. [00:29:49] Speaker 02: And I have six seconds. [00:29:50] Speaker 02: I just want to say this. [00:29:52] Speaker 02: The claim construction in a listener in Loeb is, the claim construction of a listener being a broadcaster is an error. [00:30:04] Speaker 02: The listener excludes a broadcaster, and I'd like that to be addressed. [00:30:13] Speaker 00: I'd like to address a few points on the direct appeal before turning to the cross appeal. [00:30:18] Speaker 04: We'll add some time because we're going to restore two minutes of history. [00:30:22] Speaker 00: Thank you. [00:30:25] Speaker 00: One of Mr. Hardy's first points was the continued playback at 2.35. [00:30:30] Speaker 00: If you look at 2.35, you'll see you can actually get to 2.35 from either 2.33 or 2.69. [00:30:39] Speaker 00: Continued playback is just continuing playback. [00:30:41] Speaker 00: It's not saying it's the start of playback. [00:30:43] Speaker 00: So that's the answer to that one. [00:30:45] Speaker 05: Then he refers to the... With respect to your reliance on 267, though, can you go to column 15 and starting at about line 21? [00:30:57] Speaker 05: Sure. [00:30:58] Speaker 05: Where it says the third command, the skip command. [00:31:04] Speaker 05: indicated at 275 and figure 3 causes the player to advance to the beginning of the next program segment in the program sequence recording the start of the next sequence at 267 and resetting the playback position at 269. [00:31:19] Speaker 05: Doesn't that describe exactly what your friend on the other side says 267 is all about? [00:31:26] Speaker 00: No. [00:31:28] Speaker 00: The only timing occurs at 267. [00:31:30] Speaker 00: It says [00:31:31] Speaker 00: recording the start of the sequence, but it's an actual timer. [00:31:34] Speaker 00: I mean, it's referred to playback time. [00:31:36] Speaker 00: Again, if you look down at later in the column, it says recording the start time. [00:31:41] Speaker 00: Where are you? [00:31:42] Speaker 00: I'm sorry. [00:31:43] Speaker 00: It's at line 60 and 61. [00:31:46] Speaker 00: So it's definitely, and even if you take a look, it says record segment end and new start. [00:31:49] Speaker 00: It's calculating a time. [00:31:50] Speaker 00: His argument is that it's just calculating it for some other purpose, but that's the only, it may well be used if you're doing some sort of metering. [00:31:57] Speaker 00: That's another use for it, but the only calculation of time in the patent [00:32:01] Speaker 00: is that calculation. [00:32:03] Speaker 05: But again, you're telling us that 267 means something and 267 is described in some detail. [00:32:11] Speaker 05: If you look at 55 to 59, it talks about what it does and it talks about it in precisely the same terms that Mr. Hardy just talked about. [00:32:23] Speaker 05: So I guess I'm trying to understand why you tell us that we should read [00:32:27] Speaker 05: a ton into that box when the detailed description of what that box does doesn't support what you're saying. [00:32:34] Speaker 00: Well, it actually says, I think, it says by resetting the playback point. [00:32:40] Speaker 00: Where are you? [00:32:41] Speaker 00: Okay, I'm on 61 of column 15. [00:32:43] Speaker 00: It says, recording the start time, volume setting, and new program segment idea in the log file is indicated at 267. [00:32:50] Speaker 00: I mean, it expressly refers to recording the start time. [00:32:54] Speaker 00: His only argument is that it's recording it for some other purpose. [00:32:57] Speaker 00: But perhaps it's used for logging it to calculate how much time you've been using the system, but that's not anything that's discussed in these claims. [00:33:05] Speaker 00: The only discussion of any timing here is this passage here. [00:33:11] Speaker 00: It may well be the start of the next segment, but that just confirms my point. [00:33:16] Speaker 00: That's the dividing line. [00:33:18] Speaker 00: For the predetermined period of time, you need to know how much time has elapsed since the beginning. [00:33:22] Speaker 00: You don't need to know how much time is remaining till the end of the segment. [00:33:26] Speaker 00: There was some question about column 12, lines 4 to 64 indicating timing. [00:33:34] Speaker 00: Actually, if you look at that, it's talking about the numerical orders at track number 1, 2, 3, 4, 5, 6. [00:33:39] Speaker 00: So really, this is the only discussion of it in the patent. [00:33:42] Speaker 00: Finally, on the cross appeal, the issue with respect to the go and skip commands, again, the board discussed claims 1 and claim 4 separately. [00:33:52] Speaker 00: It addressed the go command, then it separately addressed [00:33:55] Speaker 00: the skip command. [00:33:57] Speaker 00: They are distinct functions, and we acknowledge that in our petition, and we explain that the go command will let you go to the beginning of a user-selected track, which you can do by hitting, say, the right arrow. [00:34:09] Speaker 00: If you want to go to number one to number three, you just go down arrow, and you go to two, and you go to number three. [00:34:14] Speaker 00: You can go anywhere. [00:34:15] Speaker 00: It talks about scrolling. [00:34:16] Speaker 00: This is in both chase and lope. [00:34:18] Speaker 00: The function is disclosed. [00:34:20] Speaker 00: The question is really the algorithmic structure. [00:34:22] Speaker 00: And that was undisputed. [00:34:23] Speaker 00: We had an expert who explained why the algorithmic structure in Chase's software appendix, which directly explained how to go to the next file, was also rendered obvious going to the command for claim one. [00:34:38] Speaker 00: That testimony was undisputed. [00:34:40] Speaker 00: It was expressly credited by the board. [00:34:44] Speaker 00: Attorney argument is great. [00:34:45] Speaker 00: It just wasn't in the record. [00:34:47] Speaker 00: It was an undisputed opinion of our expert. [00:34:50] Speaker 00: And actually, it makes sense. [00:34:52] Speaker 00: because it's actually quite easy to go to any file. [00:34:56] Speaker 00: Once you know, I want to go to file three, you just tell it to go to file three. [00:35:00] Speaker 00: The structure there was actually more complicated because you had to figure out what the next file was. [00:35:04] Speaker 00: Was it two or three? [00:35:05] Speaker 00: It's actually easier. [00:35:05] Speaker 00: But we didn't have to get into all that because it wasn't disputed below. [00:35:09] Speaker 00: It was an undisputed evidentiary record. [00:35:11] Speaker 00: The board went with us. [00:35:12] Speaker 00: It's a substantial evidence question. [00:35:14] Speaker 00: So we submit that you should affirm on that. [00:35:16] Speaker 00: and that the proper result is to remand with respect to two claims, 8 and 28, where there are some remaining issues that otherwise determine that the claims are unattainable. [00:35:26] Speaker 04: Thank you. [00:35:26] Speaker 00: Thank you. [00:35:30] Speaker 02: Your Honor, if I may. [00:35:32] Speaker 02: So I want to point something out. [00:35:34] Speaker 02: Claims 1, 7, 8, 9, 10, and 13 require that a sequencing file from outside the player be sent to the player based upon the personalized preferences of a listener. [00:35:47] Speaker 02: Claim 14 requires a sequencing file to contain a sequence selected by the listener. [00:35:52] Speaker 02: And then 076 Claim 1 requires a sequencing file to be chosen by or for the users. [00:35:58] Speaker 02: In each of these situations, you required a sequencing file from outside the player to be sent to the player based on the preferences of the listeners. [00:36:08] Speaker 02: Now, the theory of invalidation relied on the P tab. [00:36:12] Speaker 02: is that one would modify the DJ jock-box interface of the broadcaster to create a personalized player to play the preferences of the DJ. [00:36:27] Speaker 02: In doing so, they found that the preferences of the DJ broadcaster can meet the limitations of the preferences of the listener. [00:36:38] Speaker 02: In other words, the DJ [00:36:40] Speaker 02: could be the listener in the claim combination. [00:36:44] Speaker 02: Now, the problem with this is the claim term listener, when read in light of the specification, clearly excludes broadcasters. [00:36:53] Speaker 02: And I'm going to direct you to page 60 of our cross-appellants brief, but I'm going to just read this out because it's relatively short. [00:37:00] Speaker 02: There are many quotes on this, but the quote that I want to focus on is this. [00:37:04] Speaker 02: Even when desired programming is found, it must be listened to when it's a broadcast. [00:37:10] Speaker 02: That is times chosen by the broadcaster and not the listener. [00:37:15] Speaker 02: Well, the words broadcaster and not the listener means the specification is clearly drawing the distinction between broadcasters and listeners. [00:37:25] Speaker 02: And if we treat the broadcaster preferences the same as listener preferences just because they might hear their own broadcasts, [00:37:34] Speaker 02: Well, the invention would address none of the stated goals that are described in the specification it intended to address, like not using broadcaster preferences instead of having personalized preferences. [00:37:46] Speaker 02: That's cited on page 59. [00:37:47] Speaker 02: So this theory relying on a DJ broadcaster's preferences to meet the claim limitations of the listener's preferences is a clear error of claim construction that contradicts the statement listener when viewed in the specification, and that's an error. [00:38:05] Speaker 02: Your time is up. [00:38:07] Speaker 02: Your time is up. [00:38:08] Speaker 02: I have 37 seconds. [00:38:11] Speaker 02: According to my clock here. [00:38:14] Speaker 04: Your light is red. [00:38:16] Speaker 04: Oh, okay. [00:38:18] Speaker 04: Thank you. [00:38:19] Speaker 04: We thank both sides in the case.