[00:00:39] Speaker 01: Our last case this morning is Viatech Technologies versus Microsoft 2017-22-76. [00:00:48] Speaker 01: Mr. Lennon. [00:00:54] Speaker 03: Thank you, Your Honor. [00:00:55] Speaker 03: May it please the Court? [00:00:57] Speaker 03: We submit that the claim construction of the District Court, limiting the claims that are at issue on this appeal to a discrete unit in a single file, [00:01:09] Speaker 03: is erroneous. [00:01:10] Speaker 03: And we're basing our argument and our position on those issues on this court's opinion in the server technology case that we have cited in our briefing. [00:01:24] Speaker 03: The claim structure that we are addressing here and the district court addressed is essentially a digital content file comprising three elements, digital content, [00:01:38] Speaker 03: the file access control mechanism and the dynamic license database. [00:01:44] Speaker 03: And we submit, first of all, that despite the court's reference to the claim structure and the claim language, what the district court did not do is give operative effect to basically two terms that are important here. [00:02:02] Speaker 03: The first term is comprising, which is open-ended and [00:02:08] Speaker 03: requires the three elements to be part of the digital content file. [00:02:13] Speaker 03: But it does not limit the claim itself with a digital content file, we submit, to just a single file or a discrete unit as the district court ruled. [00:02:25] Speaker 03: The district court also did not give operative effect to the associated with language that appears in the last paragraph with reference to the dynamic license database. [00:02:38] Speaker 03: the phrase we're in the dynamic license database is associated with the digital content file. [00:02:45] Speaker 03: We submit and we argue to the district court does not mean literally that again the three elements have to be within a single file. [00:02:54] Speaker 02: Do you have a problem with Judge Andrews' construction of file as a collection of data treated as a unit in a file system? [00:03:04] Speaker 02: Not as construction [00:03:05] Speaker 02: in the claim construction. [00:03:07] Speaker 02: So that construction as such, you're fine with. [00:03:11] Speaker 02: Yes. [00:03:11] Speaker 02: Your concern is how he ultimately applied that construction in his summary judgment order. [00:03:18] Speaker 02: That's correct. [00:03:19] Speaker 03: In his summary judgment order, he stated specifically that in the claim construction opinion, he had ruled that the digital content file, or the term file, meant a unit, a discrete unit or single file. [00:03:35] Speaker 03: He did not explicitly state that in his definition. [00:03:39] Speaker 03: What he referred to was, in essence, the plain and ordinary meaning. [00:03:43] Speaker 03: He referred to extrinsic evidence. [00:03:47] Speaker 03: That definition has a collection of data treated as a unit we are fine with. [00:03:54] Speaker 03: It's his subsequent ruling that his original ruling [00:04:00] Speaker 03: that definition was further limited to a single file or discrete unit. [00:04:04] Speaker 02: When it comes to the disk image file version of Windows in Office, what I'll call the pre-installation version, it seems like the whole question of claim construction isn't necessary to [00:04:30] Speaker 02: to be correct or incorrect because in the end, there's nothing in the accused products that can be deemed a database at that point in the pre-installation phase. [00:04:42] Speaker 02: As I understand it, nothing in the court's claim constructions or applications of those claim constructions are needed to find no infringement [00:04:57] Speaker 02: of the pre-installation version of the accused products because the pre-installation version lacks a database. [00:05:08] Speaker 02: And then if I were to agree with that, then the summary judgment could be affirmed. [00:05:16] Speaker 03: Well, there are two issues there in our view. [00:05:17] Speaker 03: First of all, the software for creating the database that exists [00:05:26] Speaker 03: on the installed version on a user system is in the, let's call it the ISO file, the disk image file. [00:05:37] Speaker 03: And second, the parties agreed during the claim construction proceedings that a database would be defined as [00:05:51] Speaker 03: a collection of records containing information. [00:05:54] Speaker 03: I don't remember the exact definition, but my recollection is that is the general gist of it, and we do refer to that in our briefing. [00:06:04] Speaker 03: So our expert testified that with respect to the infringement issues relating to the ISO file, that there was in fact a database on the disk image or in the disk image [00:06:20] Speaker 03: consisting of those records and license information, which was contained in those records, which then, when installed by a user, the software created the token store and trusted store and the cash store that is pointed to in our briefing to the district court as the [00:06:49] Speaker 03: database when it's installed on the user system. [00:06:54] Speaker 02: So it's a capability argument in a sense because in the pre-installation version, the disk image version, those various stores don't exist yet. [00:07:08] Speaker 02: They exist later. [00:07:10] Speaker 02: That's correct. [00:07:10] Speaker 02: And so because, in your theory, it's because the disk image version is capable, once installed, [00:07:18] Speaker 02: creating those stores. [00:07:20] Speaker 02: And therefore, there's a database. [00:07:23] Speaker 02: It's capable of being a database. [00:07:25] Speaker 02: And so therefore, you should get credit for that under an infringement theory. [00:07:31] Speaker 03: Well, our theory is essentially what you have described. [00:07:35] Speaker 03: It's based on this court's precedent in the Vasada case, for example, as well as Finjan and the Erickson case that we cited in our briefs. [00:07:47] Speaker 03: The Posada case as well as the fantasy sports case are directly applicable because they do involve a situation where the user is installing the software and activating the functions that are in the software, but let's just say not active at the time. [00:08:10] Speaker 02: OK. [00:08:11] Speaker 02: And just to try to figure out what is the scope of this appeal, [00:08:17] Speaker 02: Let's assume for the moment that I agree with the judge below that a doctrine of equivalence theory wasn't really properly preserved below, nor was a literal infringement theory based on the installed version of the accused products preserved. [00:08:42] Speaker 02: What is your argument for why [00:08:46] Speaker 02: either or both of those theories are actually preserved in the case. [00:08:52] Speaker 03: The issue that the judge raised was only with respect to the doctrine of equivalence issue, as I recall. [00:09:00] Speaker 02: As I recall, in footnote five, he said your argument as in your footnote in your opposition to summary judgment of non-infringement identified [00:09:15] Speaker 02: The post-installation version of the Q's products is also possibly having a file because the data therein is treated as a unit. [00:09:25] Speaker 02: And then he said in the footnote that your footnote was an improper way to assert an alternative infringement theory. [00:09:35] Speaker 02: And so therefore, he's not going to consider it, and he considers it waived. [00:09:39] Speaker 02: And then he cited authority, including our own Smith Klein Beacham opinion, which says, [00:09:45] Speaker 02: Trying to assert arguments or theories in a footnote is no way to preserve arguments. [00:09:53] Speaker 02: You have to have the arguments in the text, not in footnotes. [00:09:58] Speaker 03: My understanding of that footnote was that it was directed to our doctrine of equivalence, the doctrine of equivalence issue, and the argument of Microsoft. [00:10:07] Speaker 03: But I would have to go back and check that. [00:10:09] Speaker 02: All right. [00:10:09] Speaker 02: I'm talking about A45, which is page seven of his opinion. [00:10:15] Speaker 02: Footnote five. [00:10:17] Speaker 02: So maybe you can wait to reply if you want. [00:10:22] Speaker 01: It's under the literal infringement section. [00:10:26] Speaker 03: OK. [00:10:26] Speaker 03: I do have to go back and look at it again, because I don't remember it that way. [00:10:30] Speaker 03: But to answer your question, the issue down below on summary judgment was always essentially [00:10:44] Speaker 03: does the digital content file as construed by Judge Andrews cover only a single file or multiple files? [00:10:54] Speaker 03: The experts had different opinions, reports, and also testimony on that issue. [00:11:04] Speaker 03: But both experts addressed the definition of Judge Andrews in his claim construction ruling. [00:11:11] Speaker 03: In other words, [00:11:12] Speaker 03: a collection of data treated as a unit. [00:11:17] Speaker 03: The issue of how that was interpreted as a single file came up during the expert testimony, the expert report period. [00:11:30] Speaker 03: And our expert responded to that. [00:11:33] Speaker 02: But... Just so we can cut to the chase here. [00:11:37] Speaker 02: Sure. [00:11:38] Speaker 02: Even if you're right, [00:11:40] Speaker 02: that he applied his construction of file too restrictively to not encompass the possibility of smaller files being part of a file. [00:11:51] Speaker 02: And you may well be right about that as being a defect. [00:11:55] Speaker 02: And you may also be right that his construction of the dynamic license database was not quite right either. [00:12:03] Speaker 02: But nevertheless, I read his decision [00:12:07] Speaker 02: as hinging on the fact that the disk image file of the accused products lacks a database. [00:12:13] Speaker 02: And so to me, this case then boils down to, really, the question of whether your Erickson argument is right on the capability question. [00:12:28] Speaker 03: So far as the disk image is concerned, I think you're correct. [00:12:36] Speaker 03: I don't see that we waived our literal infringement argument on the installed version because the expert testimony that was before him from our expert was in effect that the installed version was treated as a unit. [00:13:02] Speaker 02: So hypothetically, if an [00:13:04] Speaker 02: expert report contains, say, four infringement theories. [00:13:09] Speaker 02: But then in the briefing, only one of those is cited and discussed and argued for. [00:13:16] Speaker 02: Are the other three still live infringement theories that the district court has to address? [00:13:26] Speaker 02: Well, I think it was, Your Honor, because- This is a hypothetical. [00:13:30] Speaker 02: You know, I understand that. [00:13:34] Speaker 02: Does the judge have to root out all possible infringement theories that could have been made in the actual briefing but wasn't actually articulated and then conclude, OK, I need to address these infringement theories, too, because I see the expert is meandering into other possible theories? [00:13:50] Speaker 03: Well, I think that's the discretion of the judge to proceed on what's presented. [00:13:59] Speaker 03: We agree with that. [00:14:00] Speaker 03: The question of waiver is something different. [00:14:03] Speaker 03: in the sense that the installed version had issues of fact associated with it in terms of the experts disagreeing on whether the Windows and Office software was treated as a unit. [00:14:19] Speaker 03: So on summary judgment, that's an issue that we didn't address. [00:14:24] Speaker 03: We were addressing primarily the ISO file image. [00:14:30] Speaker 03: And during the summary judgment hearing, [00:14:33] Speaker 03: Council for Microsoft conceded that not only the ISO file, but also the install file on a hard disk was treated as a unit because it could be mounted by a file system. [00:14:50] Speaker 03: And our argument for infringement was based on not only the [00:15:02] Speaker 03: capability of the software to create the database, but also the fact that there was more or less an admission by their expert that Windows in Office, despite the fact that it could be multiple files, was in fact meeting the definition of the court on claim construction, which is a collection of data treated as a unit. [00:15:30] Speaker 01: Your time has? [00:15:31] Speaker 03: Yes. [00:15:32] Speaker 01: Almost expired, but we'll give you two minutes back for a bottle. [00:15:36] Speaker 03: Thank you, Your Honor. [00:15:37] Speaker 01: Mr. Sharpenback. [00:15:44] Speaker 00: Good morning, Your Honor. [00:15:45] Speaker 00: May it please the Court? [00:15:47] Speaker 00: Maybe I could start with a capability question to pick up on Judge Chen's questioning. [00:15:56] Speaker 00: If you even get there, I mean, first of all, I think this issue is not one that was properly presented below. [00:16:04] Speaker 00: There's a lot of issues in this appeal that weren't properly presented below. [00:16:07] Speaker 02: It looks like Judge Andrews fully addressed the whole question. [00:16:10] Speaker 00: Well, to the extent this ties to their argument based on comprising and the word A and so forth, I mean, those arguments were not addressed below. [00:16:19] Speaker 00: But putting even that to one side, Judge Chen, [00:16:23] Speaker 00: The cases that Judge Andrews did address were Erickson and Finjen. [00:16:29] Speaker 00: True. [00:16:30] Speaker 00: The two cases counsel is focused on here now are Fantasy Sports and Versada, two different cases. [00:16:36] Speaker 00: But you can look at any of those. [00:16:38] Speaker 00: In all of those cases, the language was critically different than the language of the claim at issue here. [00:16:43] Speaker 00: Those cases specifically had language of capability in the claims. [00:16:48] Speaker 00: The Versada software. [00:16:50] Speaker 00: case, for example, the language was computer instructions causing a computer to implement something. [00:16:57] Speaker 00: So all you had to have was the presence of computer instructions that if executed would ultimately do something. [00:17:06] Speaker 00: That's not this case. [00:17:07] Speaker 00: This case requires a digital content file that in fact has certain characteristics or components, one of which is a digital [00:17:16] Speaker 00: is the dynamic license database. [00:17:19] Speaker 02: So the other side is saying, well, there's software here, just like there's software in Versata, that once installed will cause the database to exist. [00:17:32] Speaker 00: Well, once installed, that's really the issue. [00:17:35] Speaker 00: They rely on the capability cases to say... But isn't that like Versata? [00:17:40] Speaker 02: You know, once you execute the instructions, it causes the [00:17:44] Speaker 02: recited function to occur. [00:17:47] Speaker 00: It depends on which point in time we're talking about or which infringement theory we're talking about for the plaintiff. [00:17:54] Speaker 00: If you're talking about pre-installation, as a matter of fact, the Microsoft products do not have yet the alleged database. [00:18:04] Speaker 00: They have software which, if installed and run, can create the files that are alleged to be the database. [00:18:10] Speaker 00: But the claim, my point is, and Judge Andrew's point was, the claims in this case require the database to exist and to exist inside the digital content file. [00:18:22] Speaker 00: That is not true pre-installation. [00:18:25] Speaker 00: And so they're trying to draw this analogy to Versata and Fantasy Sport and say, well, but it's close enough if the mere capability existed. [00:18:34] Speaker 00: And the answer to that question with respect is, no, it's not enough. [00:18:38] Speaker 00: Because the claims here say that the thing in question has to exist. [00:18:42] Speaker 00: It has to exist. [00:18:43] Speaker 00: It's not a question of it can be created at some point in the future. [00:18:47] Speaker 00: Fantasy sports is to the same effect. [00:18:48] Speaker 00: I won't run through the facts of the case. [00:18:50] Speaker 00: I can. [00:18:51] Speaker 00: But that was a means for doing something. [00:18:54] Speaker 00: And all that was required by the claim was, do you have these means present in the accused device, whether or not the user ever, in fact, invokes them or uses them? [00:19:06] Speaker 00: And that's a different situation than here. [00:19:09] Speaker 00: I thought the next issue, based on the questioning that might be useful to address, is whether the post-installation issue is even really on the table here. [00:19:22] Speaker 00: It is the case, as Your Honor Judge Chen noted, that the district court found waiver, that that was not a theory that was fairly presented below. [00:19:33] Speaker 00: And we've really gone from, if I can sort of come up to a slightly higher level, [00:19:39] Speaker 00: On the last page of Viatech's summary judgment opposition, page 20 of 20, the last footnote, footnote 40, tried to shoehorn in a whole bunch of sites that pertain to this post-installation theory. [00:19:56] Speaker 00: And Judge Andrews says, that's not good enough. [00:19:59] Speaker 00: And clearly under this court's case law, it's not good enough. [00:20:01] Speaker 00: And in fact, under Third Circuit case law as well, which we put in our brief, it's not good enough. [00:20:06] Speaker 00: That one footnote has now become four pages in Viatek's reply brief here, their reply brief pages 15 to 19. [00:20:14] Speaker 00: So they've sort of taken what was a waived argument below and tried to make it a marquee argument in their reply. [00:20:20] Speaker 00: Not really. [00:20:22] Speaker 02: Some of those Goldberg declaration paragraphs also show up in footnote 26 of their opposition. [00:20:28] Speaker 02: At page 12, right? [00:20:30] Speaker 00: Some of them do, yes. [00:20:32] Speaker 00: But not in the context that they're trying to use it here of saying that they've got now this whole other theory. [00:20:39] Speaker 00: I mean, what they identified below in summary judgment as their theory for infringement was the file was the pre-installation file. [00:20:52] Speaker 00: But even putting to one side the waiver point, and I think it was fair of Judge Andrews to find that, and it's not an abuse of discretion that he did, it still doesn't matter. [00:21:05] Speaker 00: Because post-installation, everybody agrees that Windows or Office both are a collection of many files, many, many, many files, individual files, each of which has a name, and everyone would agree they're separate files. [00:21:18] Speaker 00: And so even if you look at post-installation, [00:21:21] Speaker 00: That doesn't satisfy the court's claim construction of file. [00:21:25] Speaker 02: Well, the district court's claim construction of file, as articulated in the markment order, did not itself exclude the possibility of, say, smaller files being part of the file. [00:21:43] Speaker 00: As you just phrased it, that's correct. [00:21:45] Speaker 02: Because he said it was simply a collection of data that is treated as a unit in a file system. [00:21:51] Speaker 00: treated as a unit in a file system, but here's the difference. [00:21:54] Speaker 02: So if there's a file system directory and there's something, for example, that said Windows, and then you looked at it and saw that underneath that folder for Windows, there are a lot of different programs and subfolders and things like that. [00:22:10] Speaker 00: But not treated as a unit by the file system. [00:22:12] Speaker 02: So here, with this... That could be, arguably, a unit, as such, when you look at it in the directory. [00:22:19] Speaker 00: Well, there isn't any evidence in this record that a directory is treated as a unit by the file system. [00:22:26] Speaker 00: In fact, if you look carefully at the testimony that they cite from their own expert, he's very careful in his phrasing when he talks about things like the Windows directory and says, well, the directory is sort of treated as a unit, because when you actually install and run Windows, we can all agree it's performing the functions of Windows. [00:22:47] Speaker 00: And so that's treating it as a unit. [00:22:49] Speaker 00: He never actually says it's treated as a unit by the file system. [00:22:53] Speaker 00: And so there's no evidence on this record that it is. [00:22:56] Speaker 02: But getting to the application of his claim construction, where he said a file can never be a set of smaller files, he also somewhere acknowledged that the license monitor and control mechanism is made up of files. [00:23:19] Speaker 02: If that thing can be made up of files and that thing is part of a file, why can't the definition of file likewise logically encompass something that includes a bunch of smaller files? [00:23:36] Speaker 02: Given that the license monitoring control mechanism is conceivably made up of files. [00:23:43] Speaker 00: It depends on how the files are arranged, right? [00:23:46] Speaker 00: And when Judge Andrews observed that this specification. [00:23:50] Speaker 02: OK, that's interesting. [00:23:50] Speaker 02: It depends on how the files are arranged. [00:23:53] Speaker 02: So that is an acknowledgment that there can be files that make up said file. [00:23:59] Speaker 00: I'm acknowledging actually what the patent says, which is you can have something called a container file or an installation file, which is a file. [00:24:08] Speaker 00: It is a single file. [00:24:10] Speaker 00: And within it, it can contain various other entities. [00:24:14] Speaker 00: It can contain data. [00:24:15] Speaker 00: It can contain other files. [00:24:17] Speaker 00: But in that form, you have one file. [00:24:20] Speaker 00: You don't have many files that are treated individually by the file system. [00:24:25] Speaker 00: You have one file. [00:24:27] Speaker 00: And when you run that file or execute that file, the contained items get extracted and separately installed. [00:24:36] Speaker 00: And then you have separate files. [00:24:38] Speaker 00: Each of them is a separate file that is treated as its own unit by the file system. [00:24:43] Speaker 00: And this process is actually explained in the patent in column 16 carrying over to line 17. [00:24:51] Speaker 00: And so that's critically different than saying any collection of separate files anywhere in Windows can be referred to as a file because they're sort of all there. [00:25:02] Speaker 00: That's a very different creature. [00:25:04] Speaker 00: And in fact, it's the very reason that Microsoft never disputed that the pre-installation [00:25:10] Speaker 00: file, what counsel has referred to as the ISO file. [00:25:14] Speaker 00: We agree that's a file because it's a single file treated as an entity by the file system. [00:25:20] Speaker 02: Why wouldn't just the three elements of the claimed digital content file, each of those elements, be a file? [00:25:27] Speaker 02: The digital content, the license, monitor and control mechanism, and then the database. [00:25:34] Speaker 00: Well, I mean, the short answer is it depends on how they're implemented. [00:25:38] Speaker 00: The digital content file can be a single file, yes. [00:25:41] Speaker 00: The digital content of the digital content file can be a single entity. [00:25:46] Speaker 00: The file access control mechanism, as disclosed in the patent, can be a single file that has functionally embedded within it calls to other separate files. [00:26:01] Speaker 00: But that doesn't make the separate, which in the example in the patent are DLLs, but that doesn't make all those DLLs [00:26:07] Speaker 00: all just one big file. [00:26:09] Speaker 00: They're separate files, functionally embedded in the file access control mechanism. [00:26:15] Speaker 00: And then you ask about the database, could you implement a database as a single file? [00:26:19] Speaker 00: Sure, you could. [00:26:21] Speaker 00: Microsoft doesn't do that. [00:26:23] Speaker 00: Microsoft has a collection of files which is alleged to be the database. [00:26:33] Speaker 02: I don't know if this is even needed. [00:26:36] Speaker 02: we were to affirm on the pre-installation version. [00:26:40] Speaker 02: But I guess I'm just trying to figure out and explore with you the possibility that maybe there are instances where a file can include smaller files. [00:26:55] Speaker 02: And it sounds like, yes, that can be the case. [00:26:58] Speaker 00: That absolutely can be the case, but you still have in that. [00:27:02] Speaker 02: So long as they're treated as a unit in the file system. [00:27:04] Speaker 00: Treated as a unit by the file system. [00:27:05] Speaker 00: And that's what the patent shows. [00:27:07] Speaker 00: That is what the patent shows. [00:27:08] Speaker 00: In fact. [00:27:09] Speaker 02: So it would be wrong to say you can never have smaller files as part of the claimed file here. [00:27:19] Speaker 02: So long as if even when those smaller files are treated as a unit in the file system. [00:27:24] Speaker 02: Agreed. [00:27:24] Speaker 00: Yes. [00:27:26] Speaker 00: And in fact, just to sort of put the icing on the cake here, Judge Andrews actually grappled with this very aspect of the specification. [00:27:33] Speaker 00: It's column six, these lines 49 and 53 that Viatech has sort of kept coming back to and said, look, the spec says you can have files within a file. [00:27:45] Speaker 00: And Judge Andrews looked at that and said, well, that's right. [00:27:49] Speaker 00: But that doesn't say anything at all about whether when you have separate files, [00:27:54] Speaker 00: that are not treated as a unit by the file system, that those are a file within the meeting of this panel. [00:28:00] Speaker 00: It's a different situation. [00:28:03] Speaker 00: So let me go on and address a couple other items that came up in the questioning here. [00:28:13] Speaker 00: I do think on this issue of whether the judge changed his claim construction, we don't see that. [00:28:21] Speaker 00: And let me give you just a few [00:28:22] Speaker 00: Perhaps citations, if there's any question in your mind, where you can sort of compare what the judge did on claim construction with what he actually said in his summary judgment opinion. [00:28:33] Speaker 00: In claim construction, Judge Andrews framed the dispute at A-15 as, I mean, the dispute between the parties was whether a file required a discrete named entity on the one hand, which was Microsoft's position, [00:28:50] Speaker 00: could be construed to cover a collection of files, on the other hand, which was Viatech's position. [00:28:55] Speaker 00: That was the entire reason this term was construed. [00:29:00] Speaker 00: And he, of course, said, no, it can't. [00:29:03] Speaker 00: My construction is a collection of data, not a collection of files, a collection of data that is treated as a unit by a file system, treated as a unit, meaning it's a discrete, single unit. [00:29:18] Speaker 00: And so if you fast forward to summary judgment, [00:29:21] Speaker 00: When Viatech repeated its arguments that a collection of files could be a file, he said, no, I resolved this. [00:29:29] Speaker 00: And in fact, Judge Andrews specifically said, this is at A-47, at claim construction, plaintiff argued that file could mean a collection of files and not just a discrete file. [00:29:44] Speaker 00: I rejected this position, explaining that the patent never refers to a collection of files as a single file. [00:29:51] Speaker 00: And so I don't think it's fair on this record to say the judge changed his mind. [00:29:56] Speaker 02: He also rejected your proposed construction too at Markman, right? [00:30:00] Speaker 02: That it has to be a .exe or something like that? [00:30:02] Speaker 00: Well, the answer is he adopted his own construction, yes. [00:30:06] Speaker 00: But in substance on this point of whether a file had to be a discrete unit or its own entity on the one hand versus a collection on the other, [00:30:16] Speaker 00: Clearly, he adopted the substance of Microsoft's position. [00:30:19] Speaker 00: Did he use our exact words? [00:30:21] Speaker 00: No. [00:30:21] Speaker 00: Fair enough. [00:30:23] Speaker 00: But that decision really resolved this case because it prevented and still prevents Viatech from having any viable theory of finding a digital content file that has the required, among other things, but the required database. [00:30:46] Speaker 02: decided this case was his decision that the disk image file version lacks a database. [00:30:54] Speaker 02: Yes. [00:30:56] Speaker 02: So it wasn't so much whether there's a file or no file. [00:31:00] Speaker 00: Fair enough. [00:31:00] Speaker 00: They're sort of flip sides of the same coin. [00:31:02] Speaker 00: But the reason that they were forced to focus on the pre-installation file [00:31:09] Speaker 00: is because of the definition of file, that they were not able to look at post installation and say, well, gee, all of those things together constitute a file. [00:31:18] Speaker 00: And so we can find our database on that side of the equation. [00:31:21] Speaker 00: They were required to find the database on the other side. [00:31:24] Speaker 00: And it doesn't exist there. [00:31:27] Speaker 00: If there are no other questions. [00:31:30] Speaker 01: Thank you, counsel. [00:31:31] Speaker 01: Very good. [00:31:31] Speaker 01: Thank you. [00:31:32] Speaker 01: Mr. Lennon has a couple of minutes. [00:31:36] Speaker 03: Yes. [00:31:36] Speaker 03: Two minutes. [00:31:37] Speaker 03: Thank you. [00:31:40] Speaker 03: Concerning counsel's last point, I would just like to reiterate that the claim construction ruling by Judge Andrews was a collection of data treated as a unit, and I emphasize treated as a unit. [00:31:57] Speaker 03: During summary judgment, he says in his summary judgment opinion that he ruled on claim construction that [00:32:07] Speaker 03: the file meant a unit, quote unquote. [00:32:11] Speaker 03: That is the basis on which we are placing our argument that he did, in fact, change his claim construction. [00:32:21] Speaker 03: To Uranus' point earlier about our arguments about the literal infringement and the post-installation filing, I would first say that [00:32:34] Speaker 03: We based our arguments focusing on the ISO file because of the court's claim construction of the dynamic license database residing in the digital content file. [00:32:47] Speaker 03: In other words, on claim construction, Judge Andrews required that the database be part of the digital content file. [00:32:57] Speaker 03: And in the footnote, I believe the court was referring to, [00:33:03] Speaker 03: essentially said that post installation we weren't giving up that theory but if the claim construction is ruled erroneous then that infringement theory was still viable and we should have an opportunity to make that argument. [00:33:29] Speaker 03: I think that's [00:33:33] Speaker 03: all I have to say for right now. [00:33:35] Speaker 03: Thank you. [00:33:36] Speaker 01: Thank you, counsel. [00:33:37] Speaker 01: We'll take the case under review.