[00:00:00] Speaker 04:
back, Mr. Cummings, WSOU Investments versus Google, 2022, 1065.

[00:00:10] Speaker 00:
Thank you, Your Honors.

[00:00:12] Speaker 00:
This case is very similar to the 1063 case.

[00:00:17] Speaker 00:
Similar processor structures are disclosed.

[00:00:21] Speaker 00:
This adds the memory and code structures in the claims as well.

[00:00:30] Speaker 00:
But I guess I want to back up this a little.

[00:00:32] Speaker 02:
Are you focusing on here the at least one memory, including computer program code limitation?

[00:00:41] Speaker 00:
Where the memory code and processor cause the apparatus to detect an application is being started on the apparatus.

[00:00:49] Speaker 00:
In response, turn on the Doppler radar.

[00:00:54] Speaker 00:
OK.

[00:00:54] Speaker 00:
I think that's right.

[00:00:57] Speaker 04:
Thanks to me, this case is quite different from the others, which recites processor.

[00:01:02] Speaker 04:
This uses the term code.

[00:01:06] Speaker 04:
Code by definition requires something specific, doesn't it?

[00:01:11] Speaker 00:
As Diefan said, code itself connotes structure, and the function of the code is part of the code structure.

[00:01:23] Speaker 00:
But we submit that saying a processor configured to the configured to is essentially saying, here's the code that's running on the processor.

[00:01:34] Speaker 00:
They're just saying, they could say, a processor running this code

[00:01:40] Speaker 00:
from a technological standpoint, that's really no different than saying a processor configured to or a processor running code.

[00:01:52] Speaker 00:
From a more general standpoint, Phillips says that the claim term needs to be construed in the context of the entire patent, so it shouldn't comports with the instrument as a whole.

[00:02:10] Speaker 00:
I don't believe that your honors are contesting that the listing of central processing unit and digital signal processors and the like, that the specification identifies as structural processors.

[00:02:28] Speaker 00:
It's more the breadth of what's the software and firmware that go along with it.

[00:02:36] Speaker 04:
We don't contest.

[00:02:37] Speaker 04:
Oh, did I say contest?

[00:02:41] Speaker 00:
Yes.

[00:02:42] Speaker 00:
Please decide.

[00:02:44] Speaker 00:
You seem to agree that there is a processing structure disclosed in the specification to point to a section that appears to be broad but ignore the disclosure of

[00:03:01] Speaker 00:
processing structures that are disclosed in the specification would not comport with Phillips saying that it needs to be construed in the context of the patent as a whole.

[00:03:19] Speaker 00:
It says processor and here are processor structures that are disclosed.

[00:03:23] Speaker 02:
And you're also focusing on, you're talking a lot about processor, but I understood you also to be, it's a limitation that also has a memory and it has computer program code.

[00:03:35] Speaker 02:
And your specification talks about a memory storing a computer program comprising computer program instructions.

[00:03:43] Speaker 02:
For me, this feels different than the earlier cases in the sense that this feels more structural.

[00:03:49] Speaker 02:
Could you help me understand what your arguments are for why this is structural beyond the language that are referred to in this spec?

[00:03:58] Speaker 00:
OK, well, VDPP and

[00:04:04] Speaker 00:
Well, BDPP held that storage, another name for memory, wasn't just a black box because it existed in the prior art at the time of the invention.

[00:04:21] Speaker 00:
The specification here identifies different types of memory structures that can be used.

[00:04:31] Speaker 00:
Permanent memory, a ROM, dynamic memory, or DRAM, cache memory.

[00:04:37] Speaker 00:
So again, it discloses different memory structures that can be used along with the processor.

[00:04:44] Speaker 02:
Do you think a person of ordinary skill in the art would know what a memory is?

[00:04:48] Speaker 00:
Absolutely.

[00:04:51] Speaker 00:
a basic first year electrical engineering student or computer science student understands the basic idea that you need to have memory modules in some format in order for a computer to run.

[00:05:09] Speaker 00:
And so the claim here is saying we're putting together this system of

[00:05:18] Speaker 00:
memory structures, code structures, and processor structures that will operate in the following manner.

[00:05:28] Speaker 02:
In zero-click, one of the things that this court focused on was that the specification talked about commercially available computer programs being used.

[00:05:39] Speaker 02:
That would show that there was a specific structure that would be understood by a person of ordinary family art.

[00:05:44] Speaker 02:
Is there anything like that in this case?

[00:05:47] Speaker 00:
I think the zero-click, the idea was that there were these operating systems that could be tweaked differently.

[00:05:57] Speaker 00:
Other than indications like in Die-Fan that there was software at the time of the invention that you could display anything at all,

[00:06:10] Speaker 00:
The patent explains what the operation of the software is, so the structure of the code is defined in part by its functions, and functions are identified in the claims.

[00:06:34] Speaker 00:
I want to also address this idea that the district court applied the presumption by taking account of the rule and identifying the controlling test.

[00:06:48] Speaker 00:
That's not the same thing as applying the test, as was shown in DIFAN 2.

[00:06:54] Speaker 00:
Reciting the standard like an incantation is very different from actually applying it.

[00:07:03] Speaker 00:
And the district court never identified where Google showed that these terms do not mean structure to a skilled artisan.

[00:07:18] Speaker 00:
And that was their burden to do, that they had to show that processor didn't mean structure.

[00:07:25] Speaker 00:
uh, memory didn't mean structure and that the code didn't mean structure and, and, uh, to, to, uh, to a skilled artist and they, and they didn't do that.

[00:07:35] Speaker 03:
Um, Mr. Cummings, let me ask you a sort of a broad question.

[00:07:41] Speaker 03:
Um, if, if we were to write a presidential opinion in this case, and we wanted to advance the state of our, of our jurisprudence,

[00:07:55] Speaker 03:
beyond Williamson, ZeroClick, and DIFAM, what would our holding look like?

[00:08:04] Speaker 03:
I don't think you need to go.

[00:08:06] Speaker 03:
Well, it's unfair to ask you a question like that.

[00:08:08] Speaker 03:
But just while we're thinking about it, what do you think we should say that would advance the understanding of how to treat these sorts of functional statements in a software-related art?

[00:08:24] Speaker 00:
I was a little surprised that VDPP was non-precedential, because it took Diphon and ZeroClick more explicitly that software and memory and code are all tied together and they're all structural.

[00:08:45] Speaker 00:
And in fact, VDPP that's dealing with processor and storage said that

[00:08:54] Speaker 00:
The Challenger's arguments were particularly unpersuasive in light of DIFAN, which was dealing with code and application.

[00:09:05] Speaker 00:
And you even look at the claims that are at issue in both of the software ones, DIFAN and ZeroClick, they have claims in there.

[00:09:18] Speaker 00:
ZeroClick has a processor configured too.

[00:09:21] Speaker 00:
uh... claim uh... zero clipper died and has a uh... software when executed what's technologically the same thing as uh... as saying a processor configured to to run those those process i don't think the court needs to go any further than dvd p p diet and zero-click uh... in order to uh... reverse

[00:09:48] Speaker 03:
and these cases and you don't need to go any further than that we're not asking for some uh... categorical rule it almost sounds like uh... uh... we're heading toward a ruling that basically says that 112 doesn't apply in software cases because software is software related inventions computer related inventions the structure aside from transistors and the like

[00:10:17] Speaker 03:
is all defined by function.

[00:10:22] Speaker 00:
Again, I don't think that you need to go to the extent that all software is outside of 112.6.

[00:10:32] Speaker 00:
When the function of the software is explained,

[00:10:37] Speaker 00:
And in these cases, the software is being used in conjunction with structural devices, these processor chips and memory chips.

[00:10:50] Speaker 00:
Then to a skilled artisan, they're going to understand, yes, this is a software structure.

[00:10:57] Speaker 00:
In fact, computer scientists refer to structures.

[00:11:01] Speaker 03:
And I think zero-click and diphen.

[00:11:04] Speaker 03:
made significant advances in our precedent and maybe there's nothing more that we need to say.

[00:11:11] Speaker 00:
I don't think that you would need to.

[00:11:13] Speaker 00:
VDPP made it a little bit clearer on processor and memory.

[00:11:21] Speaker 00:
But otherwise, those three together, we feel completely covers this.

[00:11:26] Speaker 00:
You don't need to go any further.

[00:11:28] Speaker 00:
Yeah, thank you.

[00:11:28] Speaker 00:
Thank you.

[00:11:29] Speaker 00:
I'll reserve the rest of my time.

[00:11:30] Speaker 00:
Thank you.

[00:11:31] Speaker 04:
Mr. Mayagos.

[00:11:39] Speaker 03:
relief.

[00:11:41] Speaker 03:
Can we start with your views on the same question I just asked?

[00:11:45] Speaker 03:
I mean, a little philosophical.

[00:11:48] Speaker 01:
Of course, I am hoping for an affirmance, presidential otherwise.

[00:11:53] Speaker 03:
Yeah, I didn't say we would write our precedent until it's been one way or the other.

[00:11:58] Speaker 01:
Understood, Your Honors.

[00:11:59] Speaker 01:
And I think a good place to start is Williamson and Dyson.

[00:12:02] Speaker 01:
There is one such in 112.6.

[00:12:04] Speaker 01:
It applies across the board.

[00:12:06] Speaker 01:
Dyson notes there's a distinction sometimes between structural, mechanical, and software.

[00:12:11] Speaker 01:
As I read the case law, the key is how.

[00:12:15] Speaker 01:
If it's a software claim, how is the function performed?

[00:12:19] Speaker 01:
It is not enough simply to recite a function.

[00:12:21] Speaker 01:
That's clear.

[00:12:23] Speaker 01:
It has to explain how is the function performed.

[00:12:27] Speaker 01:
If the claim language explains how the code would perform a function, that imbues some structural character into the claim.

[00:12:36] Speaker 01:
If the specification tells us how the code does something, that would inform the structural character of software.

[00:12:44] Speaker 01:
But simply saying software to perform a function, that is dead center 112.

[00:12:52] Speaker 04:
The problem is that 112-6 was written for mechanical inventions.

[00:12:58] Speaker 01:
I don't dispute that, Your Honor.

[00:12:59] Speaker 01:
I think it's been applied broadly.

[00:13:01] Speaker 01:
I think 1952, we did not have these issues undisputably.

[00:13:05] Speaker 01:
But I don't think the law has cabined itself strictly in terms of 112-6 to mechanical or otherwise.

[00:13:12] Speaker 01:
And there's strands or silos of law as to how to treat software, how to treat mechanical.

[00:13:22] Speaker 02:
Diefan answered that question you had.

[00:13:24] Speaker 02:
I mean, in that case, the court held that it wasn't written in 112.6 format.

[00:13:29] Speaker 02:
And I don't remember exactly what the word was.

[00:13:31] Speaker 02:
Maybe application or program code, something like that or both.

[00:13:36] Speaker 02:
But what did it say about how, other than that a person of ordinary skill in the art would understand those words to ten out the structure of computer instructions?

[00:13:49] Speaker 02:
What about that says how?

[00:13:52] Speaker 01:
I read that.

[00:13:53] Speaker 01:
So I agree 100%.

[00:13:56] Speaker 01:
And what animated the ultimate decision was the expert testimony.

[00:13:59] Speaker 01:
But what captures my eye in Dyson is give me your moment, Erin.

[00:14:07] Speaker 01:
I think I have it here.

[00:14:09] Speaker 01:
It's OK.

[00:14:09] Speaker 01:
OK, I want to say it starts at the last paragraph on page 1368.

[00:14:15] Speaker 01:
And it's the paragraph that spans 1368, 1369.

[00:14:28] Speaker 01:
And I read that paragraph, and when it distinguishes unlike mechanical arcs, I guess I read that paragraph in the context of the entire DIFFAN opinion to require a how.

[00:14:39] Speaker 01:
How is the code implementing this function?

[00:14:43] Speaker 04:
I'm reading DIFFAN where it says, accordingly, because the recited functions can be performed by conventional off-the-shelf software.

[00:14:53] Speaker 04:
a person of ordinary skill would have understood the alleged code limitations to connote structure off the shelf.

[00:15:04] Speaker 01:
Right, Your Honor, and I think I would submit that is consistent.

[00:15:06] Speaker 01:
How is, in that instance, again, what drove that case was there was evidence that a person of ordinary skill in the art

[00:15:14] Speaker 01:
would understand the term and know how it was done, because it was off the shelf.

[00:15:18] Speaker 01:
I don't know if it's commercially available, but it was off the shelf code that did that.

[00:15:22] Speaker 01:
We do not have these circumstances here.

[00:15:25] Speaker 01:
What we have is a broad reference to processor, memory, and code.

[00:15:30] Speaker 01:
And in column five, I want to say lines 31 to 33, it says program instructions generally refer to any logic and routines that perform methods.

[00:15:44] Speaker 02:
Can I ask you something?

[00:15:45] Speaker 02:
When you see one memory including computer program code, isn't that pretty specific?

[00:15:51] Speaker 02:
I mean, I admit there could be different code in there, but those are computer instructions, and you know you've got a memory that has instructions in it.

[00:16:00] Speaker 02:
That's, you know, broad, but that's structure, unlike a situation where, you know, we can name the situations from other cases.

[00:16:08] Speaker 02:
But why isn't that structure?

[00:16:11] Speaker 01:
Because I think the relevant inquiry is still not whether it connotes some type of structure or not that it's entirely devoid of structure.

[00:16:19] Speaker 01:
But is it sufficient structure to perform the claim function?

[00:16:22] Speaker 02:
That's not what our case law says.

[00:16:24] Speaker 02:
Our case law says whether it connotes structure.

[00:16:27] Speaker 02:
And that's what our case law says, not sufficient structure to perform the function.

[00:16:33] Speaker 01:
I believe in general, Your Honor,

[00:16:42] Speaker 01:
I apologize, let me pull that case.

[00:16:57] Speaker 02:
So if you look at Williamson, for example, we say the standard is whether the words of the claim are understood by persons of ordinary skill in the art to have a sufficiently definite meaning as the name for structure.

[00:17:12] Speaker 01:
And I believe in Williamson, in the same paragraph, it also provides... And later in that paragraph, I believe it says, when a claim term lacks, the word means the presumption can be overcome and 112.6 will apply if the challenger demonstrates that the claims

[00:17:40] Speaker 01:
that the term fails to recite sufficiently definite structure, or else recites function without reciting sufficient structure for performing that function.

[00:17:49] Speaker 01:
And I believe there's three formulations that appear in that paragraph in Williamson, and I believe they appear again in another paragraph in Williamson.

[00:17:58] Speaker 01:
Egenera picks up on those second two formulations that I just read, and as do other cases such as XR.

[00:18:07] Speaker 02:
So with that, thank you for pointing that out.

[00:18:10] Speaker 02:
So with that, what is your argument for why a memory including computer program code with the processor is insufficient structure to perform the functions in the client?

[00:18:22] Speaker 01:
Because as used in the context of the 825 patent, again, it says a processor is broadly anything that sends or receives data with generic input-output interfaces.

[00:18:33] Speaker 01:
And it explains that code or program instructions as something like logic or routines that perform a method.

[00:18:40] Speaker 01:
But what's entirely absent is how do those logic or routines perform a method?

[00:18:45] Speaker 01:
That's what would be necessary to imbue some structural character to the claim terms here in the context of the 825 patent.

[00:18:54] Speaker 04:
Counsel, a little change of pace.

[00:18:57] Speaker 04:
Of course.

[00:18:58] Speaker 04:
I'd like to direct you to column seven of the 825 patent.

[00:19:04] Speaker 04:
Is that an algorithm and is that relevant here?

[00:19:16] Speaker 01:
It is not an algorithm for purposes of the claimed function because the claimed function here, I believe, is detect that an application has started and turned on the radar.

[00:19:28] Speaker 01:
This does provide a sequence of statements, but if you look carefully, it really repeats the claimed function.

[00:19:35] Speaker 01:
It does not provide an algorithm for performing a function.

[00:19:39] Speaker 01:
It simply parrots the recited functions in slightly different verbiage.

[00:19:47] Speaker 02:
How specific does the algorithm have to be?

[00:19:51] Speaker 01:
As this court has made clear, an algorithm can be a flow chart.

[00:19:54] Speaker 01:
It can be narrative.

[00:19:55] Speaker 01:
But it has to explain how.

[00:19:56] Speaker 01:
What an algorithm can't do under this court's precedent is it can't simply repeat the function.

[00:20:02] Speaker 01:
It can't state the output of the function or when the function occurs.

[00:20:07] Speaker 01:
There has to be some how.

[00:20:09] Speaker 01:
How is that function achieved?

[00:20:10] Speaker 01:
How is it performed?

[00:20:13] Speaker 04:
And you would say that figure six doesn't suffice.

[00:20:17] Speaker 01:
Absolutely, Your Honor.

[00:20:18] Speaker 01:
Figure six, I'm looking at it now, is six boxes with pure function.

[00:20:24] Speaker 01:
Transmit, receive, detect, change operation.

[00:20:27] Speaker 01:
There's no law, there's no how.

[00:20:32] Speaker 02:
What is your best case for your view that our case law requires this element of how?

[00:20:38] Speaker 02:
Aren't how specific, you know, with

[00:20:41] Speaker 02:
the level of abstraction has to be, what do you think is your best case for saying that it has to be much more specific than what is found, for example, in column seven that Judge Lurie pointed out?

[00:20:55] Speaker 01:
I believe it's cases, is this, I'm sorry Your Honor, for step two?

[00:20:59] Speaker 02:
Either step two or step one.

[00:21:00] Speaker 01:
Then I would say cases like, for step two, cases like Noah and other cases that I think we set forth in our briefs, which make clear that repeating the function or

[00:21:09] Speaker 01:
using slightly different verbiage to express the same functional language is insufficient.

[00:21:15] Speaker 01:
I think BioMedina says that NOAA, I'm blanking on the other cases, but I think they're in our briefs, as for step one or step zero, the threshold inquiry, it would be Egenera and Williamson that make clear that it

[00:21:31] Speaker 01:
Simply because there's some structure is not enough.

[00:21:34] Speaker 01:
It has to be structured that can perform the specific function that is recited in the claim language.

[00:21:48] Speaker 04:
Anything for the council?

[00:21:49] Speaker 01:
No, Your Honors.

[00:21:50] Speaker 01:
I was looking at my notes.

[00:21:51] Speaker 01:
Unless there's any questions for me, I'll just ask once again for an affirmative.

[00:21:55] Speaker 01:
Thank you, Your Honor.

[00:21:56] Speaker 04:
Thank you, Mr. Cummings.

[00:21:58] Speaker 04:
There's some time left if he needs it.

[00:22:01] Speaker 00:
So I want to address this how that Google complains that the claims indefinite because it doesn't explain the how.

[00:22:11] Speaker 00:
Specifically, what they say is that it doesn't explain how the processor detects that an application has started, or it doesn't explain how the processor starts the Doppler.

[00:22:25] Speaker 00:
Those arguments can't be taken seriously.

[00:22:27] Speaker 00:
A processor doesn't know when an application is... We take all arguments seriously.

[00:22:35] Speaker 00:
But the processor doesn't know when an application is starting on the processor.

[00:22:41] Speaker 00:
That's effectively what they're saying.

[00:22:43] Speaker 00:
But skilled artisans know that when an application starts on the processor, there are things that the processor does

[00:22:55] Speaker 00:
This is the level of detail of those skilled in the art that aren't required to be put in the specification, because otherwise the specifications just become huge.

[00:23:10] Speaker 00:
How a processor starts the Doppler radar system.

[00:23:14] Speaker 00:
Processors have been controlling devices and sub-portions of systems for years.

[00:23:21] Speaker 00:
This was 2010.

[00:23:25] Speaker 00:
The iPhone was three years before that.

[00:23:28] Speaker 00:
And the processor on that is turning the screen on.

[00:23:31] Speaker 00:
It's turning the radio on.

[00:23:34] Speaker 00:
All that we're doing here is saying the processor turns on the Doppler radar system.

[00:23:41] Speaker 00:
Google says, well, it's indefinite because you didn't explain that.

[00:23:44] Speaker 00:
But again, it's the level of detail of one skilled in the art that you don't have to include in the patent.

[00:23:54] Speaker 02:
Your view is everybody would know that the processor memory and computer instructions would be able to do that.

[00:24:01] Speaker 02:
Would know that that's sufficient structure to perform those claimed functions?

[00:24:06] Speaker 00:
Those skilled in the art, absolutely.

[00:24:09] Speaker 00:
They would understand that this is structure, and they would understand interrupts and all the things that go on for when the processor knows that an application is starting, and the way that a processor is able to

[00:24:25] Speaker 00:
to turn on and off devices.

[00:24:28] Speaker 00:
In particular, how does it start the Doppler radar?

[00:24:33] Speaker 00:
Unless there's any other questions, Your Honor, we ask that you reverse.

[00:24:41] Speaker 04:
Thank you.

[00:24:41] Speaker 04:
Mr. Cummings, the case is submitted.