[00:00:00] Speaker 00: I'd really like to extend my appreciation to the court here, Circuit and District, for hosting us and for being so cooperative in all the arrangements ranging to have our sitting here. [00:00:13] Speaker 00: And secondly, I'd like to turn it over to Judge Hughes for a motion. [00:00:18] Speaker 04: I have an admission this morning. [00:00:19] Speaker 04: This is the time of year that some of the judges clerks traditionally depart, and they usually [00:00:28] Speaker 04: to seek admission to our court on that event. [00:00:31] Speaker 04: And I guess one of my clerks decided to do it in Chicago, because before he came to clerk for me, he lived in Chicago and worked here for a little while. [00:00:40] Speaker 04: He's been a great clerk. [00:00:42] Speaker 04: I'm going to miss him. [00:00:43] Speaker 04: But I know that he's going to have a great career wherever he chooses to go. [00:00:47] Speaker 04: And I look forward to following his career and hopefully seeing him back before the court someday. [00:00:53] Speaker 04: So I move the admission of Michael Liu, who is a member of the bar, [00:00:57] Speaker 04: and is in good standing with the highest court in Illinois. [00:01:00] Speaker 04: I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications. [00:01:10] Speaker 00: There's more? [00:01:11] Speaker 00: Oh, yep. [00:01:12] Speaker 00: Sounds good to me. [00:01:13] Speaker 00: We're delighted to grant the motion. [00:01:16] Speaker 02: Raise your right hand. [00:01:18] Speaker 02: Do solemnly swear that you will support yourself as an attorney and counselor at this court, uprightly and according to law, and that you will support the Constitution of the United States of America. [00:01:28] Speaker 02: Thank you. [00:01:28] Speaker 02: Congratulations. [00:01:28] Speaker 00: Congratulations. [00:01:30] Speaker 00: Thank you. [00:01:32] Speaker 00: All right. [00:01:32] Speaker 00: First case this morning is 17-2364 in Ray Patterson. [00:01:37] Speaker 00: Mr. Trask, whenever you're ready. [00:01:45] Speaker 05: Good morning, your honors, and may it please the court. [00:01:56] Speaker 05: In finding the claimed invention unpatentable, the board misconstrued a key claim phrase affecting every one of the pending claims. [00:02:04] Speaker 05: The board's construction was wrong for several reasons. [00:02:07] Speaker 00: Well, why don't you tell us what the board's construction was, what term we're talking about. [00:02:11] Speaker 05: Sure. [00:02:11] Speaker 05: So the term at issue here is [00:02:13] Speaker 05: the executable extension interacts with the content to provide functionality related to the content. [00:02:20] Speaker 05: And this is in the context of e-book readers, Your Honor. [00:02:25] Speaker 05: The board's construction ignored the express language of the claims, instead plucking out a single word and construing it out of context. [00:02:34] Speaker 00: And they construed interacts to the mutual interference? [00:02:40] Speaker 00: Mutual what? [00:02:41] Speaker 05: Mutual influence. [00:02:41] Speaker 05: So the board, instead of [00:02:43] Speaker 05: examining the entire claim phrase that I just recited, the board plucked out the word interacts and construed interacts according to a dictionary to mean mutual influence and to cover extensions that are predetermined and distinct from the content displayed on the e-book reader. [00:03:00] Speaker 00: Let me just cut to the chase, at least from my perspective, obviously, which is that even if we agree with you, while it's not clear to me what construction you're proposing, [00:03:13] Speaker 00: And two, it's even less clear as to why, under some different construction you're proposing, the result wouldn't even be, in fact, easier rather than harder in anticipation. [00:03:27] Speaker 05: OK. [00:03:27] Speaker 05: So I'll address both of those, Your Honor. [00:03:30] Speaker 05: So the procedural posture here is relevant to the question you just asked. [00:03:33] Speaker 05: And the reason that's the case is because claim construction was not addressed by the parties below. [00:03:40] Speaker 05: At the Patent Office at the agency, [00:03:42] Speaker 05: The parties disputed whether or not the Prior Art Ho reference disclosed this particular claim limitation. [00:03:52] Speaker 05: They did not engage in the exercise of claim construction as to the word interacts or as to that phrase as a whole. [00:03:58] Speaker 05: And it wasn't until the board's decision that this issue of claim construction was first raised. [00:04:05] Speaker 05: So Google does have a construction that's been proposed in its briefs here. [00:04:11] Speaker 05: That construction is that the functionality of the extension is dependent on the content of the e-book. [00:04:16] Speaker 05: That's found, for example, at Google's brief at page 19. [00:04:20] Speaker 05: And under that. [00:04:21] Speaker 00: That seems quite broad. [00:04:23] Speaker 00: So you want to give us a little information why the anticipatory reference would not read on this, at least as easily as it read on the board's arguably incorrect construction. [00:04:35] Speaker 05: Sure. [00:04:36] Speaker 05: So the key element of this. [00:04:39] Speaker 05: Let me back up. [00:04:40] Speaker 05: The claim phrase at issue here has two important pieces of information kind of baked into it. [00:04:45] Speaker 05: The first is it tells us what the interaction occurs between. [00:04:49] Speaker 05: So it's the executable extension that interacts with the displayed content of the e-book. [00:04:54] Speaker 05: And then it also tells us what's the consequence of that interaction, which is that the extension provides functionality related to the content. [00:05:02] Speaker 05: So Google's construction is simply restating what I think the claim phrase itself says. [00:05:08] Speaker 05: Here, we would be satisfied if the court were either to construe the term according to the construction I just mentioned or just adopt the plain language of the claim itself. [00:05:17] Speaker 05: I think they both say the same thing. [00:05:19] Speaker 05: Either way. [00:05:20] Speaker 00: You would agree that even if we agreed with you up till that point, at a minimum, we would have to send it back to the board to analyze how in connection with this new construction, right? [00:05:32] Speaker 05: I think that's right. [00:05:32] Speaker 05: I think that's right. [00:05:33] Speaker 01: Why would we have to do that? [00:05:35] Speaker 01: Your construction seems broader than the PTO's. [00:05:38] Speaker 01: If the PTO is a factual matter, found that Ho anticipated under a narrower construction, why would we send it back for them to decide whether it likewise anticipates under a broader construction? [00:05:51] Speaker 05: Well, I disagree, Judge Moore, that it's a broader construction. [00:05:54] Speaker 05: So the board's construction is a mutual influence. [00:05:58] Speaker 05: The extension must influence the displayed content, and the content must influence the extension. [00:06:05] Speaker 05: The plain language of the claims don't require that kind of two-way interaction. [00:06:11] Speaker 05: What they require is that the functionality depend on the content by virtue of the interaction between the two. [00:06:17] Speaker 01: I really don't understand, because it seems to me that your argument is that there shouldn't be two-way. [00:06:21] Speaker 01: One-way is sufficient. [00:06:24] Speaker 01: That's what I understand your argument to be. [00:06:25] Speaker 01: It doesn't have to be two-way. [00:06:27] Speaker 01: One-way is sufficient. [00:06:28] Speaker 01: That is necessarily broader than the PTO's construction in the exact same dimension. [00:06:32] Speaker 01: It's not broader and different. [00:06:36] Speaker 05: Right. [00:06:36] Speaker 05: So the PTO's construction also reads on, in the board's own opinion, that they read their construction on extensions that are predetermined and distinct from the displayed content, which suggests that I think that's ultimately. [00:06:51] Speaker 00: So is that why yours may be [00:06:54] Speaker 00: you're not looking at whether broader or not, but you're saying your construction is deeper with respect to what the interaction is, that you think your construction is narrower because it has to depend on the content, and you think that's kind of a very narrowing concept because you think HOE is really based only on predetermined. [00:07:16] Speaker 00: I'm really just trying to understand. [00:07:19] Speaker 05: Yeah, I think that's right, Chief Judge Proz. [00:07:21] Speaker 05: So what HOE discloses is a [00:07:24] Speaker 05: an annotation that is predetermined and distinct. [00:07:27] Speaker 05: The passage cited by the board is playing of an MP3 file. [00:07:31] Speaker 05: That MP3 file would provide the same functionality, the audio snippet, regardless of what content is displayed on the page. [00:07:39] Speaker 05: Google's construction requires an interaction. [00:07:42] Speaker 04: But it's not just automatic necessarily. [00:07:44] Speaker 04: It is at least the part of ho that I have says there's one embodiment that when you get to the portion of the tax set, [00:07:52] Speaker 04: has an accompanying audio file, it automatically plays it. [00:07:55] Speaker 04: There's another one where it alerts that to the reader, and the reader can determine whether or not to play it. [00:08:02] Speaker 04: So it is a little bit more active in determining whether or not it's played. [00:08:08] Speaker 05: Well, right, Judge Yu. [00:08:09] Speaker 05: So the question is whether the annotation in Ho is using the content displayed on the e-book as an input to inform the functionality of that annotation, right? [00:08:19] Speaker 05: What Ho is disclosing. [00:08:21] Speaker 05: is an mp3 file that's played irrespective of what content is shown on the page, right? [00:08:27] Speaker 04: So whether it's triggered automatically or irrespective of the content, it's specifically tied to the content. [00:08:33] Speaker 05: Well, it's tied to a location, which is what's disclosed in Ho. [00:08:36] Speaker 05: It's not tied to the particular content. [00:08:38] Speaker 05: So it doesn't use, unlike all of the examples in the specification of the application, Ho itself doesn't disclose that the mp3 file somehow takes into account the content on the page [00:08:49] Speaker 05: in determining the functionality of that annotation. [00:08:51] Speaker 04: So you're saying that there's no relationship to the content of the page and the annotation at all? [00:08:57] Speaker 05: Well, there may be a relationship. [00:08:58] Speaker 04: That seems really unlikely. [00:08:59] Speaker 04: I mean, if you have an e-book reader about if it's a theory of classical music and they're discussing Beethoven, they're not going to attach an audio file that plays the Sex Pistols. [00:09:11] Speaker 05: Right. [00:09:12] Speaker 04: So I think that point's tied to the content. [00:09:14] Speaker 04: You're going to get a Beethoven file. [00:09:15] Speaker 05: It may be related to the content. [00:09:18] Speaker 05: I think that's right. [00:09:20] Speaker 04: How did yours operate differently from that? [00:09:22] Speaker 05: So I think this points to kind of one of the problems with the board's construction, which is that they read this disputed term as the executable extension provides functionality related to the content. [00:09:36] Speaker 05: They kind of edited out the interacts portion. [00:09:39] Speaker 05: So if it were true that this claim limitation simply recited the extension provides functionality related to the content, then I agree with you, Judge Hughes. [00:09:47] Speaker 05: That is what Ho seems to be talking about. [00:09:49] Speaker 05: You can provide an MP3 file that repeats some of the, that it's a file that kind of- Well, I still don't understand how this helps you. [00:09:56] Speaker 04: I mean, that's still an interaction between the content and the file. [00:10:02] Speaker 04: It may be that you think you've invented some kind of more dynamic interaction. [00:10:08] Speaker 04: But I don't see any kind of specific definition of that in the claim language. [00:10:11] Speaker 04: And aren't we under a BRI standard here anyway? [00:10:14] Speaker 00: And you've disavowed [00:10:15] Speaker 00: sort of the dynamically stuff, right? [00:10:17] Speaker 00: You're saying, no, no, no, we're not arguing the dynamic stuff. [00:10:21] Speaker 05: Well, yeah, right. [00:10:22] Speaker 05: So there's some discussion as to whether the claim requires dynamically reading. [00:10:26] Speaker 05: I think it's the reading that we were making the point that the extension doesn't necessarily have to read the content. [00:10:32] Speaker 05: It just needs to interact with the content. [00:10:34] Speaker 05: But this is the BRI standard. [00:10:36] Speaker 05: And I think here, because of the claim language itself that I just explained, as well as the consistent disclosure in the specification, [00:10:44] Speaker 05: Although there is no express definition of this claim term in the application, the meaning of the term is understood by virtue of the consistent disclosure of the specification. [00:10:54] Speaker 05: In all five of the examples that Google points to in its brief, the extension interacts with the content by taking the content that's displayed on the page and providing functionality based upon that content. [00:11:10] Speaker 04: If I can provide an analogy, I think that I am baffled as to how Ho doesn't show precisely that once you get rid of the dynamically doing it. [00:11:18] Speaker 04: I understand if you think you've invented something where you can add on a extension to a textbook that doesn't have any coding or whatsoever, and it can do Google searches, for instance, and suggest add-ons, then that's one thing. [00:11:34] Speaker 04: But that's a very specific definition of interaction. [00:11:37] Speaker 04: If all we're talking about is you're reading along in the text, and the extension recognizes a point in the text where it can provide additional information and offers that information, that's exactly what HOE does. [00:11:51] Speaker 05: So if I can provide an analogy that I think helps distinguish between what's disclosed in HOE and what's claimed in the application. [00:11:59] Speaker 05: So if you picture a birthday card, and there's a message inside that says happy birthday, [00:12:05] Speaker 05: There's a, let's say there's a chip in that card and that chip is programmed so that when the card is opened, the song, happy birthday, a predetermined audio clip of the song, happy birthday is played. [00:12:14] Speaker 05: Um, now let's say you, you, uh, erase the words happy birthday and you wrote in Merry Christmas instead. [00:12:19] Speaker 05: So the content of the card has changed. [00:12:21] Speaker 05: That, that chip that I just described when that card is opened will still play the predetermined audio clip of the song, happy birthday, because it's not programmed to interact with the content. [00:12:31] Speaker 00: And that's how, that's how. [00:12:33] Speaker 05: If the chip instead. [00:12:35] Speaker 00: So how does your claim work? [00:12:38] Speaker 05: So if the chip instead were programmed to interact with the content in order to provide functionality related to the content, that chip would recognize when the card is opened that the displayed content of the card now says Merry Christmas. [00:12:51] Speaker 05: And the chip would instead, for example, play a Christmas carol, not the song Happy Birthday, because it's interacting with the content to provide functionality related to the content. [00:12:59] Speaker 05: So that's more analogous to what's claimed here. [00:13:01] Speaker 04: It seems like you're reading into interacting some kind of requirement that the add-on do some kind of interpretive step. [00:13:13] Speaker 05: I think that's a fair reading, Your Honor. [00:13:15] Speaker 05: There's functionality disclosed in the specification involving optical care ignition, other means by which. [00:13:22] Speaker 04: That sounds an awful lot like the dynamic interaction that I thought you just said you weren't arguing. [00:13:28] Speaker 05: No, I think it's not quite clear to me what everyone means by the word dynamic. [00:13:32] Speaker 04: Interactions don't always have to be interpretive, do they? [00:13:36] Speaker 05: Well, I think the interaction here, as shown in all the examples of the specification, requires that the extension take the displayed content on the page and use it as an input to inform the functionality of the... Are you therefore suggesting that the word interacting has to be [00:13:53] Speaker 01: interpreted different from its plain meaning? [00:13:55] Speaker 01: Are you suggesting that the specification in this case acts as a dictionary and that the word interacting, to the extent it requires this dynamic and changing application that you've been discussing with Judge Hughes, that the specification requires that even if the plain meaning of the word would not? [00:14:12] Speaker 05: Well, so I think there's a number of dictionary definitions cited here, and I think it's plain from [00:14:17] Speaker 05: those various definitions that there is no single plain meaning of the word interacts. [00:14:21] Speaker 05: It can mean different things in different contexts. [00:14:24] Speaker 05: So I think the context here that's appropriate is the one that's informed by the claim language and the specification. [00:14:30] Speaker 05: So there's no express. [00:14:31] Speaker 01: Why would it be the broadest reasonable one, informed by the claim language and the spec? [00:14:35] Speaker 01: And what would be wrong with a broad and one-way type interpretation, since this is BRI we're talking about? [00:14:43] Speaker 01: Why would we give it the narrowest one, the one that comports sort of [00:14:46] Speaker 01: the most closely to the examples in the spec, even though there's no limiting language in the spec suggesting that the word is limited to the examples in the spec. [00:14:56] Speaker 05: Well, I think in part, Your Honor, because interacts is part of a larger claim phrase that informs its meaning. [00:15:02] Speaker 05: So the interaction doesn't occur in the abstract. [00:15:05] Speaker 05: It occurs between the extension and the content in order to provide functionality related to the content. [00:15:10] Speaker 05: That phrase tells you what the interaction involves and what it results in. [00:15:14] Speaker 01: Right. [00:15:16] Speaker 01: tried to infuse into it some sort of dynamic changing functionality that if the content changes, the extension is going to change. [00:15:27] Speaker 01: I don't see that in the claim. [00:15:29] Speaker 01: I don't know why the simple example doesn't satisfy a broad interpretation of this claim. [00:15:35] Speaker 05: Right. [00:15:35] Speaker 05: I think it ultimately boils down to the limitations in the claim and then the consistent disclosure of the specification, which under this court's Smith International case [00:15:44] Speaker 05: and the Abbott diabetes cases all show that you can define a term by implication through consistent disclosure and specification. [00:15:51] Speaker 00: Why don't we let you sit down, keep your rebuttal sign, and let's hear from the other side. [00:15:56] Speaker 00: Thank you. [00:16:03] Speaker 00: Good morning. [00:16:04] Speaker 03: Good morning. [00:16:07] Speaker 01: Go ahead. [00:16:07] Speaker 03: Oh, good morning. [00:16:08] Speaker 03: May it please the court. [00:16:11] Speaker 03: I believe the central issue in this appeal does center around the claim construction issues surrounding the internet. [00:16:16] Speaker 00: Can I just ask you a sort of technical question here? [00:16:19] Speaker 00: And I would have, if we had more time, asked Mr. Trass, perhaps, to respond to. [00:16:24] Speaker 00: Was there an opportunity to amend it? [00:16:27] Speaker 00: Was there discussion? [00:16:28] Speaker 00: Were there? [00:16:28] Speaker 00: Because it seems like maybe that's the issue. [00:16:31] Speaker 00: I mean, maybe we just needed to. [00:16:33] Speaker 00: redraft or amend the claim language to account for what may well be a difference here with prior art. [00:16:40] Speaker 00: Do you know the history of this examination and whether there was discussion of amendments, et cetera? [00:16:45] Speaker 03: Yeah. [00:16:45] Speaker 03: And in fact, the claims were initially rejected as anticipated by the whole reference. [00:16:51] Speaker 03: And Patterson amended the claims to include this interact limitation to overcome the whole reference. [00:16:57] Speaker 03: And the examiner found that amendment wasn't [00:17:01] Speaker 03: specific enough to overcome Ho as anticipation, because they construed that term broadly as requiring mutual influence. [00:17:08] Speaker 03: Now, Patterson, this is still an application. [00:17:11] Speaker 03: They could file a continuation, and they could still amend their claims. [00:17:14] Speaker 00: Well, do you have any guidance here? [00:17:15] Speaker 00: Maybe this is a little bit of an unfair question. [00:17:17] Speaker 00: But how, if you understand the distinction Mr. Trask is drawing between Ho and what he argues his claim is about, what words would be necessary [00:17:29] Speaker 00: I mean, he says this is sufficient to provide one under BRI. [00:17:34] Speaker 00: Maybe it is. [00:17:34] Speaker 00: Maybe it isn't. [00:17:35] Speaker 00: But what would you suggest would have to be stated in the claim in order to cover his point? [00:17:40] Speaker 03: I think Patterson actually has quite a few options that they could use to narrow their claims to potentially overcome HOE. [00:17:47] Speaker 00: Would they have to use the word dynamically? [00:17:49] Speaker 00: I mean, how would you describe what we're talking about? [00:17:51] Speaker 03: That would be one option. [00:17:51] Speaker 03: They could try and use this reading. [00:17:54] Speaker 03: They also have even more specific examples, the five they point to in their brief, where they talk about optically recognizing text, deciphering displayed musical references, reading displayed chemistry content, examining the text of a novel. [00:18:10] Speaker 03: So they have very specific written description support where they could amend the claims to recite those very specific claim limitations. [00:18:19] Speaker 00: If we're assuming we all agree we're in BRI territory, [00:18:23] Speaker 00: Why, you know, we use functionality and we complain. [00:18:28] Speaker 00: We don't really know what this means. [00:18:29] Speaker 00: It's ambiguous, and therefore, under BIR, it's broad. [00:18:32] Speaker 00: It seems to me any words you could use in the claim, you could make the same argument. [00:18:36] Speaker 00: So why, Judge Moore said, did you redefine or define it? [00:18:40] Speaker 00: Why is not the stuff in the specification sufficient to give clarity that the terms in the claim really mean what Mr. Trask is telling us they mean? [00:18:50] Speaker 03: Well, there's a few reasons. [00:18:51] Speaker 03: First of all, the specification doesn't define the term interact as being limited to these five specific embodiments or any type of dynamically reading. [00:19:00] Speaker 03: It's a very broad term. [00:19:02] Speaker 03: specification uses it broadly to discuss these different sub-modules interacting with one another. [00:19:07] Speaker 03: And then, you know, as the board found, if you look at just plain dictionary meanings, interact is a very broad term that doesn't require this dynamically reading. [00:19:15] Speaker 03: Well, let me just stop you there. [00:19:16] Speaker 00: Sorry to interrupt, but what sort of was weird to me in this case is that, yeah, in a way you could almost read the board to say they were adopting plain meaning, but they didn't. [00:19:26] Speaker 00: They came up with this [00:19:28] Speaker 00: construction, is it mutual? [00:19:31] Speaker 00: Mutual influence. [00:19:32] Speaker 00: That's a little odd, don't you think? [00:19:36] Speaker 03: As Judge Moore pointed out, an even broader construction would be just a one-way influence where the extension is being influenced. [00:19:45] Speaker 00: Is it your view that the plain and ordinary meaning is mutual? [00:19:48] Speaker 00: It includes the board's is the board's construction. [00:19:51] Speaker 00: Are you defending that here today? [00:19:53] Speaker 03: I think the board's construction is reasonable based on what it is. [00:19:58] Speaker 01: It's not your job to choose a reasonable construction. [00:20:00] Speaker 01: It's actually the board's job to choose the broadest reasonable construction. [00:20:03] Speaker 01: Do you think this is the broadest reasonable construction? [00:20:07] Speaker 01: I don't. [00:20:09] Speaker 03: Well, I would say the board was responding to Patterson's argument. [00:20:13] Speaker 01: And by the way, would you consider that colloquy to be an interaction? [00:20:17] Speaker 01: You didn't respond right away, but it was nonetheless an interaction, wasn't it? [00:20:22] Speaker 03: We are certainly interacting with it. [00:20:23] Speaker 03: I agree with that, for sure. [00:20:27] Speaker 03: So I would say when the board made that construction, they were faced with Patterson's argument in their appeal brief. [00:20:34] Speaker 01: No, they weren't faced with arguments. [00:20:35] Speaker 01: They made it sua sponte. [00:20:36] Speaker 01: They did not solicit briefing from Patterson, is my understanding, about the meaning of the word. [00:20:43] Speaker 01: Is that correct? [00:20:44] Speaker 03: That's true. [00:20:45] Speaker 03: There was no formal. [00:20:46] Speaker 01: So the board did it to Esponte. [00:20:47] Speaker 01: Their entire analysis amounts to one paragraph on page five of the appendix. [00:20:51] Speaker 01: Will you pull it open for me? [00:20:53] Speaker 03: Certainly. [00:20:58] Speaker 01: So they cite a dictionary, correct? [00:21:00] Speaker 01: An electrical engineering dictionary. [00:21:02] Speaker 01: OK, thanks. [00:21:03] Speaker 03: Correct, yep. [00:21:05] Speaker 01: And then they cite a case, Quozo. [00:21:08] Speaker 01: Did you catch the fact that that happened to be the dissent that they're citing and not the majority? [00:21:12] Speaker 01: Because following a dissent, a federal circuit dissent, as precedent that helps inform that the only two things they cite for their sua sponte interpretation of a word is a dissent, which they never let on that it's a dissent, and a dictionary that they found when the parties had no opportunity to present extrinsic evidence on this? [00:21:30] Speaker 01: Is that about the right level of process that occurred here? [00:21:33] Speaker 03: Well, I think if you look at the previous page, first of all, they went through four steps here. [00:21:39] Speaker 03: On page four, they said, first of all, the specification does not define the term interact. [00:21:44] Speaker 00: That tells us very little. [00:21:46] Speaker 03: Excuse me? [00:21:47] Speaker 00: That doesn't tell us what interact means. [00:21:49] Speaker 00: It just says what it doesn't. [00:21:51] Speaker 00: Exactly, exactly. [00:21:52] Speaker 03: And then they go on to the recite. [00:21:53] Speaker 03: They discuss paragraph 102 of the specification where it discusses interact and these subsystems that are interacting with one another. [00:22:00] Speaker 03: It's just a broad disclosure of interactions. [00:22:02] Speaker 03: doesn't require this dynamically reading. [00:22:05] Speaker 03: Three, then they address paragraph 35 of the specification. [00:22:09] Speaker 03: And the reason they do this, they address specifically paragraph 35, because if you look at the briefing to the board, Patterson addressed this argument very briefly. [00:22:21] Speaker 03: Basically, one page long, they cited to just this one example in paragraph 35. [00:22:26] Speaker 03: and said, Poe doesn't interact because he doesn't like read, and therefore doesn't interact. [00:22:30] Speaker 03: So I think the board's analysis is relatively concise because they were responding specifically to the arguments that Patterson raised in their appeal brief and the reply brief to the board. [00:22:40] Speaker 03: And then they went on to say that the specification is not so limited. [00:22:44] Speaker 03: And then in addition, they cited to these dictionary definitions and in this dissent, which I- These dictionary definitions? [00:22:50] Speaker 03: I'm sorry, excuse me, one dictionary definition and this dissent, which [00:22:55] Speaker 03: This is just further support. [00:22:57] Speaker 03: We're not asking for any deference. [00:22:58] Speaker 03: This isn't like extrinsic evidence under TEVA that requires deference. [00:23:02] Speaker 03: These are just two additional citations that support the board's determination that the interact limitation is not limited, as Patterson argued that it was in their briefing to the board. [00:23:15] Speaker 01: So what do I do if I believe that this construction is wrong because it requires two-way [00:23:24] Speaker 01: I mean, when I yell at my children, there is no doubt we've had an interaction. [00:23:27] Speaker 01: They're smart enough to stand there silently when it happens. [00:23:30] Speaker 01: That's one way, right? [00:23:31] Speaker 01: But it's still an interaction. [00:23:32] Speaker 01: So my problem is, I actually think, and especially in BRI land, when we're talking plain meaning, I don't think this is the plain meaning of the word. [00:23:40] Speaker 01: I really don't. [00:23:41] Speaker 01: And the PTO hasn't convinced me with its one dictionary and its site to a dissent. [00:23:46] Speaker 01: So what happens then? [00:23:48] Speaker 03: I'm not sure what the exactly right construction is, but I feel... One would just be like, you know, you could say this construction is too narrow, it should be even broader. [00:23:57] Speaker 03: But I think the end result, as you pointed out, was if it's a one-way test, it's even broader, there's going to be no difference here. [00:24:03] Speaker 03: So it's almost like it's a harmless error, because if you anticipate under this two-way, you know, narrower construction, you're certainly going to anticipate under a broader [00:24:12] Speaker 03: one-way construction. [00:24:13] Speaker 03: And I think, as you all pointed out, HOE does disclose playing an audio file related to the displayed content and their backing way that the claims require any type of dynamically reading. [00:24:23] Speaker 03: And certainly, they say it encompasses those five embodiments. [00:24:26] Speaker 03: But if you look at the rest of the specification, Patterson actually discloses annotating audio files and having them play automatically just like the HOE reference does. [00:24:36] Speaker 03: So I don't think there's any real point to sending it back. [00:24:41] Speaker 03: If there's no further questions, I'm happy to address additional questions on clinic destruction. [00:24:46] Speaker 03: We didn't really get into some of the other issues. [00:24:51] Speaker 03: But if there's no further questions, I'll yield the rest of my time. [00:24:54] Speaker 03: Thank you. [00:24:54] Speaker 03: Thank you. [00:25:11] Speaker 05: So a couple of brief points in rebuttal. [00:25:14] Speaker 05: First of all, I think one of the problems. [00:25:17] Speaker 00: Let me just ask you quickly. [00:25:18] Speaker 00: I don't want to use all of your time, but do you agree that arguably it's quite likely that you could find an amendment to amend the claim language to really more clearly identify what you're getting at, and then we would proceed without all this stuff? [00:25:35] Speaker 05: I mean, it's true that if this case were remanded, we could amend the claims. [00:25:39] Speaker 05: That's part of patent prosecution. [00:25:41] Speaker 04: Do you need a remand? [00:25:42] Speaker 04: Can't you just file continuation? [00:25:45] Speaker 05: We could restart the process and file other applications. [00:25:48] Speaker 05: That's true, Your Honor. [00:25:50] Speaker 00: Is that a problem because then you don't get to backdate it? [00:25:52] Speaker 00: I mean, is there a downside of this for Google? [00:25:56] Speaker 05: Well, this is part of a larger portfolio where there are a number of applications pending, claiming, related, but different subject matter. [00:26:04] Speaker 05: So Google's view is that the right place to correct this error is here, in this case, in this appeal. [00:26:12] Speaker 05: Part of the problem here is that there was no record below developing this claim construction argument. [00:26:17] Speaker 04: Can I just clarify, it doesn't seem to me like your problem is with the two-way versus one-way aspect of the claim construction, is it? [00:26:27] Speaker 05: Well, that's part of the problem. [00:26:28] Speaker 05: But a big part of the problem as well is the fact. [00:26:31] Speaker 04: Well, then explain to me how if we decided that it only required a one-way interaction, how HO still wouldn't anticipate. [00:26:41] Speaker 05: Well, because HO doesn't disclose interaction in two or one ways. [00:26:46] Speaker 05: It is predetermined and distinct content. [00:26:47] Speaker 04: But see, that's what I'm asking about. [00:26:48] Speaker 04: I don't think you answered my first question, at least the way I thought you were going to answer it, which is your problem with interaction is that [00:26:57] Speaker 04: you think it has some kind of qualitative content-based requirement to programs talking to each other, that there has to be some substance to that. [00:27:08] Speaker 04: So it doesn't matter if it's two or one way talking to each other. [00:27:12] Speaker 04: There has to be some further content-based. [00:27:16] Speaker 05: Right. [00:27:16] Speaker 05: In other words, I think. [00:27:17] Speaker 04: So just let me clarify. [00:27:18] Speaker 04: That means that if we thought that interaction could be read more broadly to include just one way, that still doesn't get you all the way there. [00:27:26] Speaker 04: You have to have us agree to impose some kind of content-based restriction on the interaction. [00:27:33] Speaker 05: I think if I'm understanding your honor's question, one of the big problems with the board's constructions is it expressly includes extensions that are predetermined and distinct from the content. [00:27:46] Speaker 05: And that was the hook. [00:27:46] Speaker 04: I know, but you keep saying that that's not an interaction. [00:27:49] Speaker 04: That is an interaction. [00:27:51] Speaker 04: It's just not based upon interpretation or content or the like. [00:27:56] Speaker 05: I don't think it's an interaction as the claims describe it and as the specification illustrates. [00:28:03] Speaker 05: When Google made this claim amendment, it was done for purposes of distinguishing ho. [00:28:07] Speaker 05: This is at appendix page 1421. [00:28:08] Speaker 04: Is there anything in your? [00:28:10] Speaker 04: Sorry. [00:28:10] Speaker 04: I'm not going to take up any more of your time. [00:28:14] Speaker 05: Fine thought. [00:28:16] Speaker 05: Thank you, Your Honors. [00:28:17] Speaker 05: We would just ask that the court vacate the decision whether or not the court chooses to construe this claim limitation. [00:28:25] Speaker 05: and remand for further proceedings consistent with our arguments. [00:28:30] Speaker 05: Thank you. [00:28:31] Speaker 00: Thank you. [00:28:31] Speaker 00: We thank both sides and the cases in general.