[00:00:03] Speaker 01:
Mr. Smith, you ready to proceed?

[00:00:06] Speaker 04:
Yes, Your Honor.

[00:00:08] Speaker 01:
Okay, you're reserving five minutes?

[00:00:10] Speaker 04:
Yes, Your Honor, thank you very much.

[00:00:11] Speaker 01:
Okay, I'll try to let you know when you run up to it.

[00:00:15] Speaker 04:
Thank you, Judge Wollin.

[00:00:16] Speaker 04:
May it please the Court, Matthew Smith for the appellant, Sony Corporation.

[00:00:21] Speaker 04:
We've got basically two issues, the two claim construction issues, and I'd like to start with the first one, which is the board's construction of the term.

[00:00:29] Speaker 01:
In the blue brief at 30, you fault the PTAB for

[00:00:33] Speaker 01:
relying on two obscure sentences in the background of the 596 patent.

[00:00:40] Speaker 01:
Why are those two sentences obscure?

[00:00:42] Speaker 01:
Why are they different than any other portion of the spec?

[00:00:46] Speaker 04:
Thank you, Your Honor.

[00:00:48] Speaker 04:
Obscure in this context refers to the clarity of that passage, which I think is a little bit lacking.

[00:00:55] Speaker 04:
I think it's just difficult to figure out exactly what that passage to mean, as demonstrated by

[00:01:00] Speaker 04:
the parties and the boards shifting sort of parsing of that passage throughout the history of this case.

[00:01:07] Speaker 04:
More clear are the other passages in the specification, which I think pretty clearly dictate what the term read-only area in said memory at least has to be from the correct perspective.

[00:01:19] Speaker 01:
Okay, and speaking of that, in the gray brief at 15, you criticized the PTAB and Fujifilm for distinguishing between read-only memory

[00:01:30] Speaker 01:
and read-only area in said memory, calling it a dubious distinction.

[00:01:35] Speaker 01:
But the specification uses each of the terms, but doesn't ever appear to directly equate the two.

[00:01:47] Speaker 01:
Does the specification equate the two phrases?

[00:01:51] Speaker 01:
And if it intended for these two terms to mean the same thing, why didn't the specification use the same terminology?

[00:01:59] Speaker 01:
consistently throughout.

[00:02:02] Speaker 04:
So yes, Your Honor, I don't think the terms mean exactly the same thing.

[00:02:06] Speaker 04:
One is, first of all, clearly referring to an area in a memory.

[00:02:11] Speaker 01:
So then it's not a dubious distinction?

[00:02:14] Speaker 04:
It is dubious if the purpose to which it's being applied does not, in fact, carry any weight in the argument.

[00:02:22] Speaker 04:
And I think the purpose to which it is being applied in this case, what Fujifilm is attempting to say,

[00:02:28] Speaker 04:
is that an area in memory, it goes to the question of what a sort of worm of memory is, as it were.

[00:02:37] Speaker 04:
In the background section that we just referred to, column one, lines 14 to 17, there's this part that talks about additional writing or read-only portions of the memory.

[00:02:49] Speaker 04:
And I think what Fujifilm's attempting to do in making this argument is saying that

[00:02:54] Speaker 04:
because a worm memory, something a person of ordinary skill in the art would recognize as a worm storage, can be divided into areas that have been written to and areas that haven't been written to.

[00:03:06] Speaker 04:
Because the claim says area, one can also take what would be viewed by a person of ordinary skill in the art as a worm memory, parse it down, and come up with a single area that is in fact a read-only memory.

[00:03:19] Speaker 01:
Let me ask you a little housekeeping question.

[00:03:21] Speaker 01:
Please turn.

[00:03:23] Speaker 01:
at note two on page 23.

[00:03:26] Speaker 01:
Fujifilm explains the PTAB found that the spec contains a typographical error and that write only read many should have read write once read many.

[00:03:41] Speaker 01:
Do you dispute that?

[00:03:42] Speaker 01:
No, I think that's correct.

[00:03:42] Speaker 01:
Okay, thank you.

[00:03:43] Speaker 01:
That's just for me.

[00:03:45] Speaker 01:
I think that's correct.

[00:03:47] Speaker 02:
So I guess my understanding of the first point

[00:03:52] Speaker 02:
is that the dispute here, and I think maybe the board said this, that for a worm memory, once a section is written, at that point, it's read only.

[00:04:04] Speaker 02:
So that your argument depends on saying that in this patent, either it matters who does the first writing, the manufacturer or the user, or that something once a worm is always a worm and not

[00:04:22] Speaker 02:
a read-only, and that seems like temporal, limit on what the thing is, whereas the board said in a seemingly quite straightforward fashion, at a certain point in time, the worm becomes a read-only area.

[00:04:39] Speaker 04:
I think this is the key issue, in fact, and where we see error in the board's opinion is, I think it's a statement on Appendix Page 7 where they say, even if a user can write to the memory, that's just irrelevant past history.

[00:04:51] Speaker 04:
Once they've written to it, it's unalterable.

[00:04:54] Speaker 04:
And the reason why we think that's wrong is because it's applying the wrong perspective to the claim construction.

[00:05:00] Speaker 04:
It's as if the board is saying, let's look at what a user sees at any particular instant in time.

[00:05:06] Speaker 04:
And it's not fair to charge that user with knowledge of the past, what prior users or what the user in the past might have experienced with the memory.

[00:05:15] Speaker 04:
But the correct perspective, I think, to apply is what a person of ordinary skill

[00:05:19] Speaker 04:
in view of the intrinsic and extrinsic evidence would view a read-only area in said memory as being.

[00:05:26] Speaker 04:
And that's just looking at the chip and looking at the programming and the conditions that the programming sets up.

[00:05:33] Speaker 02:
But isn't it still just looking at the chip?

[00:05:36] Speaker 02:
Why doesn't that come to the same place the board does it?

[00:05:40] Speaker 02:
Because at one point, you look at the chip and it is one thing.

[00:05:43] Speaker 02:
And at another point, it's another thing.

[00:05:45] Speaker 02:
But that second thing, actually, the claim reads on.

[00:05:48] Speaker 04:
So it's not the same thing, Your Honor, because the programming remains on the chip.

[00:05:52] Speaker 04:
And there's absolutely nothing wrong, I think, with claiming something like this.

[00:05:55] Speaker 04:
We often, in the computer arts, see claims that read on systems that have multiple conditions that may be triggered at different times or under different circumstances that are not all operating at the same time.

[00:06:08] Speaker 04:
I think the board implicitly thought there was some sort of problem with that.

[00:06:12] Speaker 02:
So when a chip or a computer

[00:06:14] Speaker 02:
has those conditions at time two, it may then be infringing even if at time one it didn't.

[00:06:19] Speaker 04:
Yes.

[00:06:20] Speaker 04:
I think the chip or the computer needs to have the full set of functionality recited in the claim.

[00:06:25] Speaker 04:
In this case, what's recited in the claim is a read-only area in said memory.

[00:06:29] Speaker 04:
So it comes down to what read-only area in said memory means in the context of the 596 patent.

[00:06:35] Speaker 04:
And I think that part of it is relatively clear.

[00:06:38] Speaker 01:
Back in the old days, when you had hard,

[00:06:43] Speaker 01:
drives, our disk drives, the ones that replace the floppy.

[00:06:47] Speaker 01:
They used to have a breakable lock on it that would make it so you couldn't write on it anymore.

[00:06:54] Speaker 01:
At that point, does it become read-only?

[00:06:59] Speaker 04:
So you're saying that a hard, well, let's say a floppy disk that has a tab on it.

[00:07:04] Speaker 01:
Right, with a tab, in fact.

[00:07:06] Speaker 04:
I don't know, Your Honor.

[00:07:07] Speaker 04:
I do know that in the context of the 596 patent

[00:07:10] Speaker 04:
There is something, there's a specific set of characteristics that a read-only area in said memory has to have in order to be read-only.

[00:07:18] Speaker 04:
And that's pretty clearly laid out in columns 16 and 17.

[00:07:21] Speaker 04:
In column 17, the patent says the purpose of this embodiment is to have a predetermined use.

[00:07:28] Speaker 04:
And the way that the patent achieves that is by having this use number which tells you the use, putting that in memory, and then making that memory, that part of memory that stores the use number read-only

[00:07:40] Speaker 04:
for the express purpose that the user cannot change it.

[00:07:43] Speaker 04:
And that's what gives you the predetermined use, because read-only memory is preventing the user from changing that.

[00:07:48] Speaker 04:
It was also reiterated in the file history at appendix page 501 where the applicant said, it's an important feature of the invention that the use number is stored in read-only memory so that the applicant can't read it.

[00:08:00] Speaker 00:
Does that prosecution history say at which time it's important that that be identified?

[00:08:05] Speaker 00:
Does it have to be identified?

[00:08:07] Speaker 00:
before it goes to the user, or is it identified when the user first starts using the device?

[00:08:14] Speaker 04:
So if we're looking for, you know, subject verb... I meant in the prosecution history, just to make sure you understood the context of my question.

[00:08:19] Speaker 04:
Thank you.

[00:08:20] Speaker 04:
Thank you, Your Honor.

[00:08:21] Speaker 04:
So if we're looking for sort of subject verb predicate, it does not say that, but it's one step away by implication, and it's once... Sorry, I didn't... Okay, no, I was just going to ask, do I remember correctly that BRI would apply here?

[00:08:36] Speaker 00:
So why would it not be reasonable, given that disclosure in column one, describing worm and saying that it has read-only areas?

[00:08:47] Speaker 00:
That might not be the exact words, but it does use the word read-only in the context of describing what worm is.

[00:08:53] Speaker 00:
Why isn't that enough, combined with the fact that the plain claim language doesn't have a temporal limitation, why isn't that enough to at least make this interpretation reasonable?

[00:09:03] Speaker 04:
So a few reasons that can all be sort of summarized in the following, which is a person of ordinary skill in the art would not recognize what Plata is doing as a read-only memory.

[00:09:14] Speaker 04:
Something else, but it's not a read-only memory.

[00:09:16] Speaker 04:
And it's not a read-only memory because it's not doing what the specification requires of a read-only memory.

[00:09:22] Speaker 00:
And that is- What about the fact that the specification itself refers to it as read-only, at least after it's been written onto once?

[00:09:32] Speaker 04:
I don't think it does that respectfully, Your Honor.

[00:09:37] Speaker 04:
The board refers to two sections of specification.

[00:09:40] Speaker 04:
One is the background and one is figure 21.

[00:09:43] Speaker 04:
And I think they both indicate that in order to be called worm, you need to have a certain collection of functionality.

[00:09:50] Speaker 04:
And that collection of functionality is writable and then becomes read-only.

[00:09:55] Speaker 04:
And that collection of functionality means worm.

[00:09:58] Speaker 04:
There's a different collection of functionality that means read-only.

[00:10:01] Speaker 04:
And you can see that in the program.

[00:10:03] Speaker 00:
Your view is that the detailed description of the preferred embodiments, its discussion and categorization of worm as being something distinct from ROM undermines any reliance on column one and the more general disclosure of the prior

[00:10:23] Speaker 04:
Yes.

[00:10:24] Speaker 04:
And in fact, I would take it a step farther and say that column one actually reinforces that notion.

[00:10:29] Speaker 04:
What column one says, if you have these two functionalities, it is worm.

[00:10:33] Speaker 04:
It doesn't go the step further, which the board indicates that it does.

[00:10:38] Speaker 04:
And that is to say, once a worm has been written to, we actually call it read-only.

[00:10:43] Speaker 00:
What about area?

[00:10:44] Speaker 00:
What about the claims use of the term area of the memory, as opposed to a read-only memory?

[00:10:50] Speaker 04:
Right.

[00:10:51] Speaker 04:
So the problem with the area is that the area itself also has this worm functionality in Plata.

[00:10:58] Speaker 04:
That is, you can write to it and then it becomes unalterable.

[00:11:02] Speaker 04:
So the area itself is like a little worm memory in the Plata reference.

[00:11:06] Speaker 04:
And that's why it wouldn't have been recognized as a read-only memory.

[00:11:10] Speaker 04:
The one thing the read-only memory has to do in the specification is prevent users from changing the data.

[00:11:16] Speaker 01:
And there is an initial value.

[00:11:20] Speaker 01:
your rebuttal time, but keep going.

[00:11:22] Speaker 04:
Let me just finish this one.

[00:11:25] Speaker 04:
The prosecution history and the specification are clear that the one thing that a read-only area in said memory has to do is prevent the user, and by this case they really mean all users, because otherwise the security function of the patent is undermined from overriding that use number.

[00:11:42] Speaker 04:
And they use a read-only area in said memory to do that, ergo the inventors

[00:11:47] Speaker 04:
The one thing they understood was that a read-only area in said memory would, in fact, prevent the users from changing the value of the use number.

[00:11:54] Speaker 04:
Thank you very much.

[00:11:58] Speaker 01:
Mr. Williams.

[00:12:15] Speaker 03:
May I please the court?

[00:12:16] Speaker 01:
I'll ask you a housekeeping question.

[00:12:18] Speaker 01:
Of course.

[00:12:19] Speaker 01:
In the red brief at 19, you say the PTAB's institution decision credited Dr. Messner's declaration regarding the construction of read-only memory or a read-only area in said memory.

[00:12:35] Speaker 01:
Did the PTAB rely on that declaration in its final written decision to construe that claim term?

[00:12:49] Speaker 01:
If they did, I'd like to know where and if not, can we rely on Dr. Messner's declaration when conducting a substantial evidence review of the PTAB's consideration of extrinsic evidence?

[00:13:04] Speaker 03:
So, I mean, as to claim construction, we haven't raised a tough bit to have a deference.

[00:13:08] Speaker 03:
And it's not even clear to me under this court's law how you apply that in the case of BRI, because here the PTAB was given discretion to figure out what the broadest reasonable interpretation is.

[00:13:19] Speaker 03:
So its construction and the final written decision did, I think, borrow from its institution decision insofar as this aspect that's being discussed.

[00:13:31] Speaker 01:
How do we trace that?

[00:13:33] Speaker 03:
Well, you can trace it by looking back at the institution decision and seeing what they were assigning to, I suppose.

[00:13:40] Speaker 03:
Frankly, even if you treat the issue of claim construction as a matter of law and ignore

[00:13:45] Speaker 03:
You know, what the PTAB did, just treat it as a first instance.

[00:13:48] Speaker 03:
I mean, the evidence is before you, obviously.

[00:13:50] Speaker 03:
And you can look at it in the same way that the PTAB could de novo, I think.

[00:13:53] Speaker 03:
So to the extent that you find that Dr. Messner's testimony helpful, I don't see why this court can't turn to it in performing the legal analysis.

[00:14:02] Speaker 03:
A few problems with Sony's construction of read-only area of memory.

[00:14:06] Speaker 03:
First is, I can't quite identify what their construction actually is for reading their briefs.

[00:14:11] Speaker 03:
It's not entirely clear.

[00:14:13] Speaker 03:
The way I read it, though, their construction would still be met by this Plato reference.

[00:14:18] Speaker 03:
Because what's being described in Plato is literally the same thing as what the 596 patent talks about with respect to this byte.

[00:14:27] Speaker 03:
So in particular, what we have is examples of a cassette.

[00:14:32] Speaker 03:
In Plato, you have a cassette that can be recorded on by the user, or you can get a prerecorded cassette from a movie studio that you get at a rental store where the user can't write to the tape.

[00:14:42] Speaker 03:
And that later, in both cases, there is a byte that's either left at 00 when it gets to the user and they can write onto the tape, or the byte is preset at FF in Plata, and that means that some movie studio has already written onto the tape and now I can't change it.

[00:14:57] Speaker 03:
In either case, there was a first writing of the tape, either by the end user or by a movie studio.

[00:15:01] Speaker 03:
Once that happens, you can no longer change that byte.

[00:15:04] Speaker 03:
It's set forever.

[00:15:05] Speaker 03:
That is literally the same thing as what the 596 talks about with respect to this use number in figure 21.

[00:15:11] Speaker 03:
So figure 21 again has the same notion of a general tape, use number zero, and it has the notion of a pre-recorded tape, and that's use number one.

[00:15:21] Speaker 03:
In the case of the 596 patent, it's not necessarily talking about a movie tape, it's talking about a data tape, but the principle is the same.

[00:15:28] Speaker 03:
Once someone has written, in this case they call it a data distribution tape,

[00:15:32] Speaker 03:
firmware updating is the example given in Figure 21.

[00:15:38] Speaker 00:
I was confused about your point that Sony's interpretation, somehow I thought there was a difference because Sony was saying that its interpretation was that the memory could never be rewritten by users, never be written by users, and your position is that it's okay that it's written once

[00:15:57] Speaker 00:
and then after it's written once, it's read-only.

[00:16:01] Speaker 00:
Isn't that the distinction?

[00:16:02] Speaker 00:
Am I missing something?

[00:16:03] Speaker 03:
So I think you have, the problem comes in that slight change in language between whether it's written or rewritten, because those are two different things.

[00:16:12] Speaker 03:
So it's got to be written once.

[00:16:14] Speaker 03:
Everyone agrees it has to be written once.

[00:16:16] Speaker 00:
But the emphasis said that was done by users.

[00:16:18] Speaker 03:
I thought that was the distinction, by users.

[00:16:21] Speaker 03:
It does, but the problem is that that distinction is actually not present in

[00:16:27] Speaker 03:
in the 596 patent, to the extent that distinction is present.

[00:16:29] Speaker 00:
That's fine, but that's their position.

[00:16:32] Speaker 00:
I wanted to make sure I understood, because I do think their position distinguishes the prior being relied upon.

[00:16:38] Speaker 03:
So the problem is, in Plata, you have the same distinction, because you've got an example in Plata of some upstream entity, the manufacturer of the tape, writing to that area.

[00:16:47] Speaker 00:
But that's not a user.

[00:16:50] Speaker 03:
So that's not clear because we don't have a clear definition of user.

[00:16:53] Speaker 02:
Do you think the studio is a user?

[00:16:55] Speaker 03:
Our argument would be, and this was Dr. Messner's, well actually it was their expert, Dr. Bain, who essentially said anyone who writes to the tape, dated to the tape, is a user.

[00:17:03] Speaker 03:
So in that case it would have been the movie studio that bought the tape from whoever made the tape was the user when they wrote onto the tape.

[00:17:10] Speaker 03:
Then they sell it to some second user.

[00:17:12] Speaker 03:
Me at home, I get the tape.

[00:17:14] Speaker 03:
Now I can't write to that area anymore.

[00:17:16] Speaker 03:
in the same way that I can't, you know, it's a read-only area of memory, just like it would be if I bought the tape written to it myself, and then I can go and write to it again.

[00:17:25] Speaker 03:
Same principle.

[00:17:25] Speaker 00:
So you're relying on expert testimony to find user.

[00:17:29] Speaker 00:
I mean, my thought, you know, would be that one of ordinary scalene art would usually use the word user to mean the person, you know, the consumer.

[00:17:38] Speaker 00:
But, you know, what is the basis for saying that it's not the consumer?

[00:17:44] Speaker 03:
Yeah, so okay, let's so this is this is where we get into dr. Baines testimony.

[00:17:49] Speaker 03:
I don't want to distract you because I think this is a side construction is either correct or it's not Yeah, that's true and this raises that one of the other problems we have with this construction Which is if you start to import into this claim the notion of who a user is what they're doing How do you know and then you have to start testing for things like is the user?

[00:18:07] Speaker 03:
actually putting data onto this tape or not and

[00:18:09] Speaker 03:
you create an indefinite problem.

[00:18:11] Speaker 03:
It creates mischief because now we have to define what a user is.

[00:18:14] Speaker 03:
And this is actually a severe problem because, for instance, if you look at appendix page 1141, where we are cross-examining Sony's expert about his construction of this term involving user, we ask him this question.

[00:18:30] Speaker 03:
This is at transcript page 29, starting with line 10.

[00:18:39] Speaker 03:
Okay, so if I go by a blank tape cartridge with a memory and I take it home, am I a user?

[00:18:47] Speaker 02:
Answer.

[00:18:47] Speaker 02:
What's MIC?

[00:18:49] Speaker 03:
MIC is memory in cartridge, so this is the memory that's in the cassette.

[00:18:54] Speaker 03:
Or memory in cassette is also what that means.

[00:18:56] Speaker 03:
Answer.

[00:18:57] Speaker 03:
A user doesn't attach to a person, it attaches to a set of activities and a role.

[00:19:00] Speaker 03:
So you will first format the tape and according to my construction, during that set of activities, you wouldn't be a user.

[00:19:07] Speaker 03:
and then you would finish formatting the tape, and you would begin transferring your backup to it, for example, and when you commenced that activity, you would be moving user data to the tape, and so as a consequence, you would be a user.

[00:19:19] Speaker 03:
And there's some other, I mean, we have sites in the brief to some other tech examples of the problem here, which is that, how do you know then who is the user?

[00:19:26] Speaker 03:
The movie studio could very well be the user in that example, the first time they write to the tape.

[00:19:31] Speaker 01:
So what you've got is Schrödinger's tape

[00:19:35] Speaker 03:
Yeah, exactly, which we have other questions about that.

[00:19:37] Speaker 03:
How do I know when I'm a user there's clear if you would have very hard time figuring out who is infringing in that situation, if anybody.

[00:19:46] Speaker 03:
The other thing I wanted to just make sure that I pointed out is the specification itself doesn't have this clear distinction that Sony seems to be finding between ROM and Worm.

[00:20:00] Speaker 03:
And so we point to this example in figure 20 of the patent

[00:20:06] Speaker 03:
So actually, figure 20 is broken into three parts, 20A, 20B, and 20C.

[00:20:11] Speaker 03:
And these are three different embodiments of how you would essentially store this data in the memory in a way that would not be rewritable or writable.

[00:20:22] Speaker 03:
And one of the examples they give in the specification is figure 20C, which starts the description of that, begins at column 16, line 65, and then goes over to column 17.

[00:20:35] Speaker 03:
And there they show this example where you can use the entire storage area as a RWM, which is a rewritable memory region.

[00:20:46] Speaker 03:
And you provide this write control means.

[00:20:48] Speaker 03:
That box is shown in figure 20 to the left.

[00:20:52] Speaker 03:
And what it says then over on column 17 then is, when you get down to around line 9, see, therefore, writing to the region treated as the ROM region can be performed.

[00:21:04] Speaker 03:
So the specification itself teaches you that this claimed area that is a read-only area of memory can actually be written to, even after you make this tape.

[00:21:17] Speaker 03:
So this construction that Sony's proposing simply can't be right.

[00:21:19] Speaker 03:
I mean, the patent itself teaches you that there are situations where you can write to that area of memory, just like in PLAT, that there are situations where you can write to the area of memory.

[00:21:28] Speaker 03:
And in PLAT, once it's written to, it can't be changed.

[00:21:36] Speaker 03:
This argument, by the way, was that this discussion in the patent was cited in the final rendition of page A-22.

[00:21:44] Speaker 03:
I think Sony argued in its reply brief that the board never addressed this section of the specification, but it was certainly argued below.

[00:21:54] Speaker 03:
It was argued extensively at the hearing, and they did cite that at least figure 20A in page A-22.

[00:22:05] Speaker 03:
Okay.

[00:22:06] Speaker 03:
Then the other example I wanted to point to is the example that we talked about again in the brief, which I already mentioned basically, this notion in Figure 21 that you've got the data distribution tape.

[00:22:18] Speaker 03:
So this is a tape that if you had already written the use number one into the memory of this tape, you would never be able to write into the memory of the tape.

[00:22:25] Speaker 03:
You would never be able to actually write any data on the tape, which would make it unusable.

[00:22:30] Speaker 03:
So clearly there has to be a way for when you're writing your data distribution data onto the tape,

[00:22:36] Speaker 03:
You could do that and then subsequently write the use number one to the memory of the tape to make clear to downstream entities that that tape couldn't be rewritten.

[00:22:44] Speaker 03:
So again, fully consistent with what the board looked at all this and concluded, I think, very clearly that what this claim means, read-only area of memory, just means that at some point, this memory becomes unwriteable by whoever has the tape.

[00:22:58] Speaker 03:
And that's a perfectly reasonable, I mean, it's probably, frankly, the right construction under any standard, certainly under the broadest reasonable interpretation standard.

[00:23:06] Speaker 03:
It seems wholly consistent with what the specification is describing, and it's exactly what Platt had.

[00:23:16] Speaker 03:
There was another issue in the brief which wasn't raised, so I don't intend to address it unless the court has any questions.

[00:23:21] Speaker 02:
Can I just ask a question about that?

[00:23:22] Speaker 02:
Can you explain how in the absence of a one-to-one correspondence between serial numbers and cassettes would the function of

[00:23:32] Speaker 02:
that this patent wants the identification information to be performed.

[00:23:39] Speaker 03:
How would that function be performed?

[00:23:39] Speaker 03:
Well, first of all, again, there's a distinction between whether it has to uniquely identify a cassette.

[00:23:45] Speaker 02:
That's what I meant by one-to-one correspondence.

[00:23:48] Speaker 02:
No two cassettes with the same number.

[00:23:50] Speaker 03:
So unique is not in the claims.

[00:23:51] Speaker 03:
It was never proposed as a construction below.

[00:23:54] Speaker 03:
And it would obviously be very different from an infringement perspective if the memory had to be big enough to have a unique number for every possible cassette ever made in the universe.

[00:24:04] Speaker 03:
So what's left instead is a notion that you have a number there that's used to identify the tape.

[00:24:09] Speaker 03:
And that's exactly what Platt has.

[00:24:11] Speaker 03:
Platt has a serial number that's used to identify the cassette.

[00:24:14] Speaker 03:
I mean, the board made a very clear finding about that in its final written decision.

[00:24:23] Speaker 03:
A-25, Platt teaches that the serial number identifies the cassette.

[00:24:29] Speaker 03:
I mean, they read Platt, they looked at the evidence, and they reached that conclusion that identified it.

[00:24:33] Speaker 02:
But the board said, and we think that's true even if a bunch of cassettes have the same serial number.

[00:24:40] Speaker 02:
And I guess I took at least part of Sony's argument to be that can't possibly be what identification information in our patent

[00:24:51] Speaker 02:
is about because the whole point there is to prevent the user, whoever that may be, from finding another cassette, taking the memory out of it.

[00:25:02] Speaker 02:
That memory doesn't have a usage control, a writing bar, and putting it into the cassette that did have one.

[00:25:13] Speaker 02:
And you can do that if you find another cassette with the same serial number.

[00:25:18] Speaker 03:
I think their argument is what the potential workaround would be for an attacker.

[00:25:26] Speaker 03:
That's exactly the same principle that Platt was concerned about, which is why they have a serial number in the cassette that needs to match the serial number on the tape.

[00:25:32] Speaker 03:
So the two cases are identical.

[00:25:34] Speaker 03:
They're both doing the exact same thing.

[00:25:36] Speaker 03:
The only question is how big does the serial number need to be in order to essentially make that probability so low that no one would bother

[00:25:45] Speaker 03:
performing such an attack.

[00:25:46] Speaker 02:
Did Sony make a probability argument or just a unique, that is, it has to be unique.

[00:25:53] Speaker 02:
It doesn't have to be, did they make an argument that said, what is it, 25,000 plus?

[00:26:00] Speaker 03:
There was some argument about the size.

[00:26:02] Speaker 02:
Two to the 16th?

[00:26:03] Speaker 03:
Yeah, there was some argument about the size of that serial number.

[00:26:05] Speaker 03:
They do say that given the size of the

[00:26:09] Speaker 03:
The field that was described in the 596 patent would be big enough to uniquely identify every cassette.

[00:26:14] Speaker 03:
I think they say that in the footnote.

[00:26:15] Speaker 03:
I don't have it in front of me, unfortunately.

[00:26:19] Speaker 03:
Essentially, the point is that if you're trying to defeat this kind of attack that you're referring to, you would need to make the attack hard enough.

[00:26:27] Speaker 02:
Right, but I would think you would not actually need a one-to-one correspondence.

[00:26:31] Speaker 02:
All you need to have is a large enough number that the probability of a miscreant finding another tape with the same

[00:26:38] Speaker 02:
serial number and a different memory controller.

[00:26:44] Speaker 02:
That's true.

[00:26:45] Speaker 02:
Which presumably all the copies of the Karate Kid have the same one.

[00:26:48] Speaker 03:
Correct, yeah, which is what Platt was really getting at in this discussion of the rental market.

[00:26:53] Speaker 03:
But all of what you've said is true, and the problem is we didn't get into a lot of those questions below because Sony conceded the construction was correct.

[00:27:01] Speaker 03:
And under the construction, nothing requires uniqueness, so we never had to really get in there, develop that evidence from the experts below.

[00:27:08] Speaker 03:
Unless there's any further questions, I'll sit down.

[00:27:23] Speaker 04:
Thank you, your honor.

[00:27:24] Speaker 04:
Just a few quick points.

[00:27:26] Speaker 04:
First of all, on the question of the identification of the user indefiniteness, I think this is being made far too complex.

[00:27:33] Speaker 04:
Person with ordinary skill in the art knows the difference between a manufacturer and a user

[00:27:38] Speaker 04:
The example Fujifilm gives in its brief of two people sitting at a table, the cassettes in one person's hand, and it's infringing.

[00:27:45] Speaker 02:
His studio example is a third party.

[00:27:47] Speaker 02:
It's not the tape manufacturer.

[00:27:48] Speaker 02:
That's correct.

[00:27:49] Speaker 02:
It's not the viewer.

[00:27:50] Speaker 02:
It's the first loader, and it might be a company.

[00:27:53] Speaker 02:
It might be me from my kid's wedding or something.

[00:27:58] Speaker 02:
And I certainly don't want the recipients of my tape to be able to erase it.

[00:28:04] Speaker 02:
So it's not just, the world doesn't divide neatly into tape manufacturer and consumer.

[00:28:09] Speaker 04:
So for, it certainly divides into manufacturer and non-manufacturer quite neatly I think.

[00:28:15] Speaker 04:
And in the instance of the videotape rental store where perhaps you have a videotape supplier that's putting the program on the tape, that is in fact a user and if that user has the ability to change the read-only memory then it doesn't meet Sony's construction because the read-only memory needs to prevent all users from

[00:28:33] Speaker 04:
accessing the use number in the memory.

[00:28:36] Speaker 04:
And so that example I don't think is particularly instructive toward the end goal of defining what a read-on-the-area and said memory.

[00:28:42] Speaker 04:
And it really is.

[00:28:43] Speaker 04:
It really goes back to how we have to view in terms of claim construction whether or not a device falls within the concept of read-on-the-area and said memory or not.

[00:28:55] Speaker 04:
And that's from the perspective again of a person of ordinary skill who's gonna look at the chip, who's gonna look at the programming, the functionality on the chip,

[00:29:02] Speaker 04:
And the one thing that has to do is exclude users from changing that information.

[00:29:08] Speaker 04:
And that does, in fact, I think also, just to get back to the question the judge still asked during the opening part of this presentation, it does actually exclude users from writing the first instance of the byte, quote unquote.

[00:29:21] Speaker 04:
Because that memory always has a value in it when it comes from the manufacturer.

[00:29:26] Speaker 04:
Writing to the memory is overwriting the memory.

[00:29:28] Speaker 04:
So when the 5-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9-9

[00:29:54] Speaker 04:
What that argument assumes is that the user has the password and the ability to write to it, not that, for example, a manufacturer keeps the password in order to do maintenance on the chip or something like that.

[00:30:06] Speaker 04:
Within the context of everything the patent says in column 16 and column 17, in other words, the point of the invention is to lock in a predetermined use and to prevent users from changing that information, it would be, I think, appropriate to assume that only the manufacturer has access to that password

[00:30:24] Speaker 04:
But there is a question of who has access to the password.

[00:30:27] Speaker 04:
This is not a simple statement that the 596 patent is saying that someone downstream can write to that memory.

[00:30:33] Speaker 04:
It's saying that a person can write to it if they have the password.

[00:30:36] Speaker 04:
And then we have to figure out who has the password.

[00:30:39] Speaker 04:
And in the context of the 596 patent, that can really only be the manufacturer, because the manufacturer is the one who sets the predetermined use.

[00:30:47] Speaker 04:
Time's up, counsel.

[00:30:48] Speaker 04:
Do you want to wrap it up?

[00:30:49] Speaker 04:
Thank you very much, your honor.

[00:30:51] Speaker 04:
I think just simply saying that if we

[00:30:55] Speaker 04:
If we construe these terms according to the correct perspective, the personal ordinary scale here, in the intrinsic evidence one arrives at the construction of the Sony house, which would exclude the five elements.

[00:31:03] Speaker 04:
Thank you very much.

[00:31:04] Speaker 04:
Thank you, counsel.

[00:31:06] Speaker 04:
Thank both counsels.