[00:00:49] Speaker 02:
OK.

[00:00:50] Speaker 02:
The next argued case is number 17, 2042, parallel networks licensing against IBM.

[00:00:58] Speaker 02:
Mr. Cawley.

[00:01:06] Speaker 04:
Thank you, Your Honor.

[00:01:07] Speaker 04:
Good morning, and may it please the court.

[00:01:11] Speaker 04:
The trial court erred in this case in granting summary judgment.

[00:01:17] Speaker 04:
as to all of the claims ensued that are before the court today.

[00:01:22] Speaker 04:
Specifically, the trial court granted a summary judgment of no direct infringement by IBM, found on summary judgment that IBM was not liable for inducing infringement, and finally found the same, no liability by IBM for contributory infringement.

[00:01:43] Speaker 04:
We believe that each of those rulings was error on summary judgment and ask this court to reverse and remand for trial of the merits.

[00:01:52] Speaker 01:
Is inducement directly related to the holding on direct infringement?

[00:02:00] Speaker 01:
That's the basis for it, that there was no direct infringement, hence no inducement?

[00:02:05] Speaker 04:
No.

[00:02:06] Speaker 04:
No.

[00:02:07] Speaker 04:
It wasn't, Your Honor.

[00:02:10] Speaker 04:
And I guess,

[00:02:11] Speaker 04:
Maybe the best way for me to answer that question is to first explain the court's ruling on direct infringement.

[00:02:20] Speaker 04:
The district court fundamentally erred in considering IBM's direct infringement, essentially by converting machine-readable medium apparatus claims into method claims.

[00:02:38] Speaker 04:
and therefore requiring the performance of all of the steps set forth in the relevant machine readable claims.

[00:02:50] Speaker 04:
For example, representative claim 20 of the 554 patent does contain a number of steps.

[00:02:59] Speaker 04:
But the preamble to that claim says that the claim covers a machine readable

[00:03:07] Speaker 04:
medium containing instructions that when executed cause a computer to implement certain steps.

[00:03:22] Speaker 04:
The district court in its summary judgment order, however, reasoned that one of those steps is that certain features of the system select

[00:03:35] Speaker 04:
what are called page servers, computers to which to efficiently send information.

[00:03:41] Speaker 04:
And because there were not a plurality of those servers to be selected among at the time of sale, that step couldn't be performed.

[00:03:52] Speaker 04:
The court therefore reasoned there's no infringement.

[00:03:57] Speaker 04:
The problem with that analysis is, again, it essentially treats that claim as a method claim, finding that there can be no infringement if the court found on the summary judgment evidence that that step was not performed.

[00:04:12] Speaker 03:
But to win, you have to argue that the step was ultimately performed.

[00:04:19] Speaker 04:
The reasonable damages, we would.

[00:04:23] Speaker 04:
But the law, I believe, is clear.

[00:04:26] Speaker 04:
from MDocs all the way back to fantasy sports, that there is infringement if the claim is drafted to cover a machine-readable medium with certain instructions to do things.

[00:04:41] Speaker 04:
Therefore, Your Honor, I think that at least the abstract answer to Your Honor's question is, if we had a situation where IBM sold the medium

[00:04:53] Speaker 04:
It has instructions on it to perform all those steps, but nobody did it.

[00:04:58] Speaker 04:
You still have direct infringement.

[00:05:01] Speaker 02:
But they say that it turns on, it isn't that the instructions say, this is what you should do, that the instructions are general and broad, and you could perform all sorts of non-infringing steps without the plurality of the, of the service.

[00:05:20] Speaker 04:
They do say that the thing that they are selling is capable of some non-infringing uses.

[00:05:30] Speaker 04:
But the test that this court has developed in FinJan, for example, is if the software is reasonably capable of implementing infringement, then that is an infringement.

[00:05:44] Speaker 04:
And the fact that it could also be used for certain non-infringing

[00:05:48] Speaker 04:
purposes is irrelevant.

[00:05:50] Speaker 03:
But in Fidgham, the user participation was minimal at best.

[00:05:55] Speaker 03:
Here, it appears that the participation by the user would be quite extensive.

[00:06:02] Speaker 03:
I mean, the participant would have to figure out how to do this, how to supply this missing step.

[00:06:07] Speaker 03:
There's nothing there that tells them how to do it.

[00:06:11] Speaker 04:
Well, there is evidence in the summary judgment record that tells them how to do it, yes.

[00:06:19] Speaker 04:
It is true, I believe, that the participation of the customer is more robust in this case than it would have been in Finjam.

[00:06:32] Speaker 04:
Fantasy sports?

[00:06:33] Speaker 04:
Maybe not.

[00:06:35] Speaker 04:
In fantasy sports, you had the ability in that software to customize extra points that more than a thousand players in the National Football League might earn

[00:06:48] Speaker 04:
in the operation of that fantasy sports software, that could be substantial participation by the customer.

[00:07:03] Speaker 04:
So the first error that we submit that you find in the district court's analysis of direct infringement, and indeed the only basis that the district court gave for

[00:07:17] Speaker 04:
A finding of direct infringement is that because at the time of sale, there was not a plurality of page servers, that the step of choosing a page server could not be carried out.

[00:07:30] Speaker 04:
That simply is a misapprehension of the law of a claim drafted in terms of a machine readable medium.

[00:07:38] Speaker 04:
And I would respectfully submit that there is no case that holds that because some non-infringing implementations are possible,

[00:07:48] Speaker 04:
or because the customer eventually participates in the implementation that that obviates the infringement that results from that sale.

[00:08:00] Speaker 04:
IBM has advanced in the course of briefing this case some additional arguments that they did not make below.

[00:08:07] Speaker 04:
We believe those, of course, are waived.

[00:08:10] Speaker 04:
The first is that there are no routing instructions as required by the preamble.

[00:08:17] Speaker 04:
That argument was not made below and the summary judgment evidence shows that the WAS software includes instructions to route to page servers, including specific references to the portions of the source code that accomplish that routing.

[00:08:34] Speaker 04:
IBM contends, again, after its submissions on summary judgment below, contends for the first time in this appeal,

[00:08:44] Speaker 04:
that there were no instructions to generate dynamic web pages from separate data sources.

[00:08:51] Speaker 04:
To the contrary, there are specific drawings in IBM's own documents instructing its customers how to use the accused software to build page servers that obtain dynamic information from data sources.

[00:09:09] Speaker 03:
And finally, IBM argues... To obtain information, but not from a plurality of paid service.

[00:09:17] Speaker 03:
Well, it teaches a... It doesn't teach that other step.

[00:09:22] Speaker 03:
And if it does, show me where it teaches that.

[00:09:25] Speaker 03:
Yes, sure.

[00:09:26] Speaker 03:
How to build or establish the step that takes you to a plurality of paid service.

[00:09:33] Speaker 03:
Certainly.

[00:09:36] Speaker 04:
We could start on Appendix 13.172.

[00:09:38] Speaker 04:
Go ahead.

[00:09:44] Speaker 04:
That's a drawing.

[00:09:45] Speaker 04:
Figure A1 that's described as a complex topology.

[00:09:52] Speaker 04:
It almost could be taken directly from Figure 4 in the patent.

[00:10:00] Speaker 04:
It depicts a customer

[00:10:03] Speaker 04:
computer making a request which is routed to a server, a web server.

[00:10:13] Speaker 04:
That web server in the lower right hand corner has a portion of software that IBM refers to as a plug-in, the patent refers to as a router, which makes intelligent decisions about

[00:10:28] Speaker 04:
where and under what circumstances to route that request to what we see labeled in this drawing as application network.

[00:10:39] Speaker 04:
And as you can see, those plugins at the web servers route the request per the intelligence in that plugin to a plurality of what the patent calls page servers.

[00:10:55] Speaker 04:
And then you see that eventually those page servers can read or can receive dynamic data from the database server one.

[00:11:07] Speaker 04:
This drawing is followed on the subsequent approximately 10 pages by a detailed description of the advantages of this system, including managing requests for dynamic content

[00:11:23] Speaker 04:
and doing so from two clusters that consist of three application servers.

[00:11:29] Speaker 04:
I'm reading now from the upper part of page 13173.

[00:11:34] Speaker 04:
This document goes on to explain how this system is to be installed by the customer, how it is to be tested by the customer,

[00:11:50] Speaker 03:
And what portion is devoted to the plurality of page servers?

[00:11:57] Speaker 04:
Well, let's see.

[00:12:11] Speaker 04:
The drawing lays out the topology

[00:12:14] Speaker 04:
And the creation of the application servers, which Patton calls page servers, is specifically covered on page 13, 177.

[00:12:24] Speaker 03:
So what I'm looking at are this Web 1A, Web 1B.

[00:12:33] Speaker 03:
You're saying that those web pages are the page servers?

[00:12:38] Speaker 04:
Yes, sir.

[00:12:40] Speaker 04:
They're not pages.

[00:12:41] Speaker 04:
They are servers themselves that generate pages.

[00:12:44] Speaker 03:
But they're not page servers.

[00:12:45] Speaker 04:
Yes, they are page servers.

[00:12:47] Speaker 04:
I mean, the patent calls them page servers.

[00:12:50] Speaker 04:
IBM doesn't use that name.

[00:12:51] Speaker 03:
So a web page and a page server is the same thing?

[00:12:54] Speaker 03:
Is that what you're...?

[00:12:55] Speaker 04:
No, Your Honor.

[00:12:56] Speaker 04:
The web page is what would be produced by the page server and could be viewed in a web browser.

[00:13:08] Speaker 04:
The page server is a computer.

[00:13:11] Speaker 04:
It's a computer that is used as a server.

[00:13:14] Speaker 04:
The request at the customer's computer at the very beginning on the far left goes through to a set of computers, the web servers.

[00:13:26] Speaker 04:
The web servers have software that IBM calls the plug-in, and that plug-in is able to intelligently route that request

[00:13:38] Speaker 04:
to the computer or page server that is most available and is most efficient in responding to that request.

[00:13:48] Speaker 03:
If appropriate, since you're missing a step, the patterns here start out with the user contacting or going to a web page.

[00:13:58] Speaker 03:
The web page, once it's asked by the user for specific content,

[00:14:04] Speaker 03:
Then the web goes into this plurality of page servers, selects one of them, the one that's not busy or the one that has another memory.

[00:14:17] Speaker 03:
And then the page server itself goes out and gets content and devotes these dynamic pages.

[00:14:25] Speaker 03:
So the dynamic pages is different from the web page.

[00:14:29] Speaker 04:
Well, they're all webpages, Your Honor.

[00:14:31] Speaker 04:
Well, yes, but we're looking at the... And remember, what's being sent from you and I, the customer, to the web server?

[00:14:40] Speaker 04:
The first thing that it goes to is a request.

[00:14:42] Speaker 04:
We're not sending a web page.

[00:14:43] Speaker 04:
We're sending a request for a web page.

[00:14:45] Speaker 04:
That web server, although it's capable probably of making a web page, basically what it's doing in this system is using the plug-in, i.e.

[00:14:55] Speaker 04:
the dispatcher,

[00:14:57] Speaker 04:
to intelligently distribute that request again, the page server compiles the page.

[00:15:05] Speaker 04:
And in some instances, it may be desirable to include dynamic data, such as sports scores, stock indications, weather forecasts, in the page that the page server is creating.

[00:15:22] Speaker 04:
Once that's done by the page server,

[00:15:25] Speaker 04:
That page is then routed back to the web server and to you and I. OK.

[00:15:35] Speaker 02:
Let's hear from the other side.

[00:15:36] Speaker 02:
Yes, ma'am.

[00:15:37] Speaker 02:
We'll save you rebuttal time, Mr. Crowley.

[00:15:38] Speaker 02:
Thank you, ma'am.

[00:15:46] Speaker 02:
Mr. DeMare.

[00:15:47] Speaker 00:
Thank you, Your Honor.

[00:15:48] Speaker 00:
May it please the court, John DeMare is for IBM.

[00:15:51] Speaker 00:
Let me start by saying every claim in this case

[00:15:55] Speaker 00:
requires at least two things that I'm going to talk about others, but at least two.

[00:15:58] Speaker 00:
One is instructions for routing web pages and a plurality of servers, page servers, as you were just discussing.

[00:16:08] Speaker 00:
Mr. Colley just argued that IBM waived the argument about the routing instructions.

[00:16:15] Speaker 00:
That is incorrect.

[00:16:16] Speaker 00:
If you look at IBM's motion for summary judgment, the very first argument, the very first heading, was devoted to routing instructions.

[00:16:24] Speaker 00:
And in fact, the court ruled on that argument.

[00:16:27] Speaker 00:
And the court ruled that Appendix 7 is a quote from the district court, the alleged identification of instructions is wholly inadequate.

[00:16:36] Speaker 00:
He's talking about parallel networks experts identification of instructions.

[00:16:40] Speaker 00:
The court said, the alleged identification of instructions is wholly inadequate, consisting of an incomprehensible 200 plus page spreadsheet with nothing more than claim language

[00:16:52] Speaker 00:
and directory locations of source code files.

[00:16:55] Speaker 00:
So we didn't not only waive the argument, we made it as our first argument, and the district court ruled on it and said their evidence was insufficient to overcome summary judgment.

[00:17:06] Speaker 00:
For that reason alone, this should be affirmed.

[00:17:09] Speaker 00:
They have not identified that our IBM product as sold includes the routing instructions, which is a claim element.

[00:17:16] Speaker 00:
They don't even deny it's a claim element.

[00:17:18] Speaker 00:
The second claim element, the plurality of servers,

[00:17:22] Speaker 00:
The district court also believed.

[00:17:24] Speaker 00:
The district court held that there's no dispute of fact that the product as sold, WAS, we call it WAS, WAS as sold by IBM does not have the claimed plurality of page servers.

[00:17:37] Speaker 00:
Parallel Network's argument is that the software is capable with customer help and installation and IT people of creating a plurality of page servers.

[00:17:48] Speaker 00:
But that's not what the claim requires.

[00:17:50] Speaker 03:
Well, I took his argument to be more than just capable.

[00:17:54] Speaker 03:
I mean, the brief, that's the argument, that it's capable.

[00:17:58] Speaker 03:
But when we're pointing to 13.172, that particular graph, I don't see there where there's a web page that's contacting a plurality of page servers.

[00:18:11] Speaker 03:
Am I looking at this correctly?

[00:18:12] Speaker 03:
And that's what I do see when I look at Figure 4 of the patent.

[00:18:16] Speaker 00:
Yes, Your Honor, and I think the conflation here is, I agree with Your Honor, the conflation here is they're taking the IBM application servers, which are not web page servers, they're application servers for a whole manner of applications.

[00:18:31] Speaker 00:
Banking transactions, FedEx tracking their packages, companies doing logic on their infrastructure, they're calling these application servers page servers.

[00:18:43] Speaker 00:
The patent in this case was about generating web pages.

[00:18:46] Speaker 00:
The WASP product that IBM sells is not a web page generation product.

[00:18:51] Speaker 00:
It's a product that helps businesses run their businesses, either tracking FedEx packages or doing banking transactions, et cetera.

[00:18:58] Speaker 00:
So it's wrong to call those application servers page servers.

[00:19:01] Speaker 00:
But even if you get beyond that, the district court found that the required claim limitation of a plurality of things called page servers doesn't exist in the code as sold.

[00:19:12] Speaker 00:
it is actually quite complicated to use that code to even make a plurality.

[00:19:17] Speaker 03:
Did the court actually make that finding, or was it that there was a bunch of data presented with the statement that it's in here somewhere, this limitation?

[00:19:29] Speaker 00:
On this particular issue, the court said at Appendix 7 that there's no dispute of fact that WASP as sold by IBM does not contain a plurality of page servers.

[00:19:39] Speaker 00:
And the court was weighing in on the evidence from their expert in ours.

[00:19:43] Speaker 00:
and saying that there was no dispute.

[00:19:44] Speaker 00:
In fact, the court says in 7, Appendix 7, quote, the fact that the accused products may be used to create application servers does not mean the products as sold include application servers as required by the claims.

[00:19:57] Speaker 00:
So right here, we have two reasons that this should be affirmed summarily, really, because there's no evidence to the contrary.

[00:20:04] Speaker 00:
Our first argument was that the product doesn't include the routing instructions.

[00:20:09] Speaker 00:
The court looked at their expert's alleged identification of routing instructions and said it's not sufficient.

[00:20:15] Speaker 00:
Secondarily, the court said there isn't a plurality of page servers.

[00:20:19] Speaker 03:
So for those two independent reasons, but I do want to talk about a third reason, which is... But your opponent is saying there wasn't a plurality of page servers, but steal the software is capable of producing a plurality.

[00:20:31] Speaker 03:
that the WAAS system is capable of producing a plurality?

[00:20:36] Speaker 00:
Not by itself.

[00:20:37] Speaker 00:
And this is what distinguishes all the cases they're relying on.

[00:20:40] Speaker 03:
It distinguishes fantasy.

[00:20:42] Speaker 03:
So now you have a user that, I guess, is supplying this limitation here of plurality of paid servers.

[00:20:49] Speaker 03:
Yes.

[00:20:50] Speaker 03:
What's the effort required of that user in order to get to that point?

[00:20:54] Speaker 00:
Well, it's huge.

[00:20:55] Speaker 00:
And this is what distinguishes all of the cases, Fantasy Sports and Amdocs and all of them.

[00:20:59] Speaker 00:
In order for a deployment of Wasp to lead to a plurality of page servers, first of all you need an IT team and you need other hardware because the application servers are on separate hardware and then you have to install on that separate piece of hardware the code and then set it up and configure it and turn it into an application server, then you have one.

[00:21:25] Speaker 00:
Then you have to decide as a user that I want a second.

[00:21:29] Speaker 00:
You have to get another piece of hardware.

[00:21:32] Speaker 00:
You have to install software.

[00:21:33] Speaker 00:
You have to get it set up.

[00:21:35] Speaker 00:
This is what IT professionals have to do.

[00:21:38] Speaker 00:
There is not on the WASP medium that is sold by IBM a plurality of these things.

[00:21:45] Speaker 00:
The district court found that, and that was a factual finding.

[00:21:48] Speaker 00:
And their expert did not take a contrary view.

[00:21:50] Speaker 00:
Their expert said, it's capable of

[00:21:52] Speaker 00:
being made that, but it isn't that one.

[00:21:55] Speaker 01:
And your argument applies both to the method claim and the medium claim.

[00:22:03] Speaker 00:
Absolutely, Your Honor.

[00:22:04] Speaker 00:
The medium as sold doesn't have it.

[00:22:06] Speaker 00:
And it clearly doesn't have the routing instructions, because to take the analogy further, if a customer of WASP actually deployed the system and tried to make a plurality of application servers,

[00:22:19] Speaker 00:
The routing instructions between the main system and the plurality are not on the disk as IBM sells it.

[00:22:25] Speaker 00:
They couldn't be as a matter of logic, because the disk doesn't know if you're going to set up a plurality if these things are not.

[00:22:33] Speaker 00:
So the routing instructions have to be created.

[00:22:35] Speaker 00:
And there's no dispute about this.

[00:22:37] Speaker 00:
Their expert agrees.

[00:22:38] Speaker 00:
The routing instructions get put into the WebSphere plugin after the deployment of the application service.

[00:22:47] Speaker 00:
They're created on site.

[00:22:49] Speaker 00:
by the people installing the system, the customer.

[00:22:52] Speaker 00:
Later, they're not on the disk.

[00:22:54] Speaker 01:
These patents have expired, correct?

[00:22:56] Speaker 00:
They have, Your Honor.

[00:22:58] Speaker 00:
There's a second point that I want to make clear here, an entirely third independent reason why this should easily be summarily affirmed.

[00:23:08] Speaker 00:
Both of these patents, as Your Honor's already pointed out, these are web generation patents.

[00:23:12] Speaker 00:
They're for generating web pages.

[00:23:15] Speaker 00:
The WASS system is not

[00:23:17] Speaker 00:
webpage generating software.

[00:23:19] Speaker 00:
In fact, as we stand here today, Discoveries Over, Expert Discoveries Over, Break the Record is closed.

[00:23:25] Speaker 00:
They haven't pointed to not one, not one single webpage that a WASP customer ever generated.

[00:23:34] Speaker 00:
Not one.

[00:23:34] Speaker 00:
They don't have one.

[00:23:35] Speaker 00:
There is no opinion from their expert that a particular company bought WASP, deployed it as they're supposed to do it, and set up a webpage.

[00:23:45] Speaker 00:
In fact,

[00:23:46] Speaker 00:
They subpoenaed 30 IBM customers.

[00:23:49] Speaker 00:
They got to choose.

[00:23:50] Speaker 00:
They subpoenaed our top 30 customers.

[00:23:53] Speaker 03:
As soon as we were to define that the WA system is fully capable and to create the web page and then the plurality of page servers, to what extent is the user participation?

[00:24:08] Speaker 03:
What's the level of expertise that would be required in order to take that next step?

[00:24:15] Speaker 00:
So in this particular case, you need skilled IT people to install this.

[00:24:23] Speaker 00:
But even beyond that, Your Honor, the instructions are not on the disk.

[00:24:27] Speaker 00:
The routing instructions in particular have to be created on site by the customer.

[00:24:32] Speaker 00:
So they're not on the disk.

[00:24:33] Speaker 00:
So you can't find, let me rephrase, there's no evidence in the record that would allow you to find that the disk on its own contains what's necessary to get the job done.

[00:24:44] Speaker 00:
The district court found

[00:24:46] Speaker 00:
Their proof by their expert, Dr. Jones, was insufficient to prove that there were routing instructions on the disk.

[00:24:53] Speaker 00:
That's on Appendix 7 in the court's opinion.

[00:24:55] Speaker 00:
That's a finding of fact.

[00:24:57] Speaker 00:
There's no evidence to the contrary that the routing instructions are on there at the time the disk is sold.

[00:25:01] Speaker 00:
And IBM doesn't put them on there.

[00:25:03] Speaker 00:
The customer has to create them after deployment.

[00:25:05] Speaker 00:
But getting back to the website point, which I think is really an important failing on the plaintiff's part here,

[00:25:12] Speaker 00:
There is not a single web page that they put in the record that was created by a WASC customer.

[00:25:18] Speaker 00:
In fact, their expert, Dr. Jones, admitted the disk that's sold by IBM does not contain the instructions to create a website.

[00:25:28] Speaker 00:
This is critical because the claim element is that this source code is supposed to quote, I'm reading from the claim now, claim 20, the disk is supposed to dynamically generate a web page.

[00:25:41] Speaker 00:
Their expert, Dr. Jones, admitted that disk does not have web page generating instructions on it.

[00:25:47] Speaker 00:
It can't be done.

[00:25:49] Speaker 00:
The only way a WASS system can infringe under their theory is, number one, you have to set it out in the field.

[00:25:56] Speaker 00:
You have to deploy multiple application servers with a team of IT people.

[00:26:00] Speaker 00:
But then you have to buy third party software that generates web pages.

[00:26:07] Speaker 00:
WASS is not a web page generating

[00:26:10] Speaker 00:
of device, of any kind.

[00:26:12] Speaker 00:
So you can't conclude, there's no evidence in the record to allow you to conclude that WASS as it stands alone can generate a web page.

[00:26:21] Speaker 00:
And that's a claim element.

[00:26:23] Speaker 00:
Their expert, Dr. Jones, admitted, and this is uncontested, that the disk as sold does not have the codes that can generate a web page.

[00:26:34] Speaker 00:
That is third independent reason

[00:26:38] Speaker 00:
why this case should be affirmed.

[00:26:40] Speaker 00:
So on the disk, as sold by IBM, three major things are missing, and there's no evidence in the record.

[00:26:46] Speaker 00:
One is the routing instructions, and the court found that.

[00:26:50] Speaker 00:
One is the plurality of page servers or application servers, and the district court found that.

[00:26:54] Speaker 00:
Those are two fact findings.

[00:26:56] Speaker 00:
And then the ability to create a web page does not exist in this software at all as sold.

[00:27:04] Speaker 00:
That's a third independent reason.

[00:27:06] Speaker 00:
Now, Mr. Cawley argued in his opening comments that that was waived.

[00:27:10] Speaker 00:
I'm not sure how we could argue that.

[00:27:11] Speaker 00:
It's a headnote in our summary judgment brief as a third independent reason to dismiss this case.

[00:27:17] Speaker 00:
So on balance, there is essentially this should be a summary of affirmance for a failure of proof by this plaintiff, because WASS is not a web generating software package.

[00:27:29] Speaker 00:
And on inducement and contributory, the district court found

[00:27:34] Speaker 00:
Again, definitively in the record that Dr. Jones, their expert, did not give any substantive opinion that there are non-infringing uses of these products.

[00:27:47] Speaker 03:
So when we see and use a term user here, what are we talking about?

[00:27:51] Speaker 03:
Are we talking about the placenta?

[00:27:55] Speaker 00:
What are we talking about?

[00:27:58] Speaker 03:
What do you say, user?

[00:27:59] Speaker 03:
Yeah.

[00:28:00] Speaker 03:
There has to be user participation in order to make the WOS system infringing.

[00:28:06] Speaker 00:
I would say, yeah, in that particular case, you probably would need a procedure, because you need a skilled IT professional to install the system.

[00:28:15] Speaker 00:
These products are bought by people like Blue Cross Blue Shield, Fidelity, companies of that nature, and they have IT.

[00:28:21] Speaker 03:
In these cases involving divided infringement,

[00:28:27] Speaker 03:
Are we looking at that final step by Apacita?

[00:28:32] Speaker 00:
This is not even divided in infringement.

[00:28:33] Speaker 00:
Just to be clear, they have to purchase third-party software.

[00:28:38] Speaker 00:
This takes three people to infringe.

[00:28:42] Speaker 00:
IBM has to sell the product to Fidelity or Blue Cross Blue Shield.

[00:28:46] Speaker 00:
And if they want to make a web page of it, they have to then go to a third... IBM doesn't sell this.

[00:28:52] Speaker 00:
They have to go to a third party and buy web page creating software.

[00:28:55] Speaker 00:
and add that on, and then the customer has to put those two things together.

[00:28:58] Speaker 00:
But just to be clear, in this record, nobody does that.

[00:29:02] Speaker 00:
We're done now.

[00:29:04] Speaker 00:
The record's closed.

[00:29:05] Speaker 00:
There is no evidence of a third party ever using this software to make a web page.

[00:29:10] Speaker 00:
As I said, they subpoenaed 30 of our top customers.

[00:29:14] Speaker 00:
They came forward in their defense to summary judgment only with four of them.

[00:29:19] Speaker 00:
Cerner, Fidelity, Blue Cross Blue Shield of Alabama, and Blue Cross Blue Shield of Florida.

[00:29:25] Speaker 00:
And when we took the deposition of their expert on those four that he had in his opinion, we said, where in the materials do you show that they're using this to produce web pages?

[00:29:34] Speaker 00:
And he said, I can't prove that.

[00:29:36] Speaker 00:
I don't know that they were using these for web pages, because they weren't.

[00:29:40] Speaker 00:
And we asked him, where is your limitation by limitation analysis on these four that they meet the claim?

[00:29:45] Speaker 00:
And he says, I didn't do that.

[00:29:47] Speaker 00:
So this is all in our brief.

[00:29:48] Speaker 00:
But as we stand here today, nobody has ever used WASP

[00:29:53] Speaker 00:
to generate a web page.

[00:29:56] Speaker 00:
So we don't even need to get to is it divided infringement or what's the standard.

[00:30:01] Speaker 00:
What we're asking ourselves here is, who's ever used this product to build a web page?

[00:30:05] Speaker 00:
There's no proof of it.

[00:30:07] Speaker 00:
And the record's closed.

[00:30:09] Speaker 00:
So what the district court found then on contributory infringement and inducement, just to finish out, again, their expert gave no rebuttal.

[00:30:17] Speaker 00:
IBM's expert put in detailed factual testimony and expert opinion

[00:30:23] Speaker 00:
about all the many uses of the accused features.

[00:30:26] Speaker 00:
And in response, all their experts said was, in words, that there is no non-infringing alternatives here.

[00:30:34] Speaker 00:
And the district court said, that is not a substantive opinion.

[00:30:37] Speaker 00:
I am not crediting that at all at the summary judgment stage.

[00:30:43] Speaker 00:
And that should be the ruling here, too.

[00:30:45] Speaker 00:
This should be a summary of firmness.

[00:30:47] Speaker 02:
Thank you, Your Honors.

[00:30:49] Speaker 02:
OK.

[00:30:49] Speaker 02:
Thank you, Mr. Davis.

[00:30:55] Speaker 02:
Mr. Colley?

[00:30:56] Speaker 04:
Thank you, Your Honor.

[00:30:59] Speaker 04:
Just a few points.

[00:31:00] Speaker 04:
First of all, are there routing instructions?

[00:31:03] Speaker 04:
Yes, they are.

[00:31:04] Speaker 04:
These days, if you produce summary judgment evidence that's too voluminous, you're accused of asking the court to scour the record.

[00:31:11] Speaker 04:
If it's too brief, you're accused of being conclusory.

[00:31:14] Speaker 04:
But I'm not going to bring the one that's voluminous.

[00:31:17] Speaker 04:
Here's the bullet shot.

[00:31:21] Speaker 04:
In his expert report, appendix page 12, 819, the expert opines, after selection is complete, the WebSphere plugin routes the request to said selected page server.

[00:31:38] Speaker 04:
As explained in section 2.1.1 above, that's the voluminous part, WebSphere executes, that is a specific reference to the source code, sends the request to the selected server.

[00:31:52] Speaker 04:
A similar statement is made by the same expert on page 12, 829, in paragraph 256 of his expert report.

[00:32:03] Speaker 04:
That, I respectfully submit, is in the summary judgment evidence and raises a fact issue about routing that makes summary judgment inappropriate, if that's the basis.

[00:32:15] Speaker 04:
On capability, during the course of argument on summary judgment,

[00:32:33] Speaker 04:
IBM admitted that their product is capable of making multiple page servers.

[00:32:38] Speaker 04:
Appendix page 15212, IBM's counsel says, this is a quote on slide 19 from their brief at 20.

[00:32:49] Speaker 04:
They say, the capability of deploying multiple application servers is present in the product.

[00:32:57] Speaker 04:
We don't dispute that.

[00:32:59] Speaker 04:
That's IBM's

[00:33:01] Speaker 04:
specific representation to the district court, but they don't dispute that their product is capable of producing multiple application servers, which the patent calls page servers.

[00:33:15] Speaker 03:
Now, if the issue is... So you're arguing capability again, but does the WAAS software include the instructions to build the web pages?

[00:33:26] Speaker 04:
Yes, it includes instructions

[00:33:28] Speaker 03:
I thought your expert acknowledged that the WAAS system does not include all the instructions necessary to generate customer's web pages.

[00:33:38] Speaker 04:
It doesn't include weather forecast.

[00:33:41] Speaker 04:
It doesn't include the logo of the customer.

[00:33:43] Speaker 03:
We're not looking at weather forecast.

[00:33:45] Speaker 04:
Well, but we are.

[00:33:46] Speaker 04:
That's why the expert says... Didn't your expert testify to that?

[00:33:50] Speaker 04:
Well, he didn't say...

[00:33:52] Speaker 03:
web forecasts, but if you look at all of that entire portion of his deposition... WOS does not include all of the instructions to generate the customer's web pages.

[00:34:01] Speaker 04:
Right.

[00:34:01] Speaker 04:
The customer has the desire to have many things on their web pages that's not generated by WOS.

[00:34:07] Speaker 04:
But the ability to build the structure, including a web page, excuse me, including a web server and the page server, are in WOS.

[00:34:19] Speaker 04:
And that's in IBM's own documents and in the

[00:34:21] Speaker 04:
the admission that I just made.

[00:34:24] Speaker 04:
And finally, in the last 30 seconds that I have available, the court obviously is struggling with the issue of, well, you have some of these cases, FinJan and maybe even Fantasy Sports, where minimal activity is required by the customer.

[00:34:41] Speaker 04:
I urge the court, on that issue, consult Versada versus SAP.

[00:34:47] Speaker 04:
where you will read a case, and I guess I should presume that the court has already read all of its own cases, where substantial, complex effort was required by the customer to implement the machine-readable medium that they purchased from the defendant.

[00:35:06] Speaker 04:
But what the customer has to do, as long as it doesn't involve rewriting the software, is irrelevant.

[00:35:11] Speaker 03:
There was extensive customer activity in Versado, but all of the instructions were included.

[00:35:19] Speaker 03:
All the claim limitation instructions were included in Versado.

[00:35:24] Speaker 04:
Yes, the claim limitation constructions were included.

[00:35:26] Speaker 03:
I was just showing you, your own expert testified that the WAAS system does not include instructions to build customer web pages.

[00:35:36] Speaker 04:
He says that it doesn't include them all.

[00:35:42] Speaker 04:
Thank you, Your Honor.

[00:35:44] Speaker 02:
Thank you.

[00:35:45] Speaker 02:
Thank you.

[00:35:46] Speaker 02:
Thank you, Mr. Collins.

[00:35:48] Speaker 02:
The case is taken under submission.