[00:00:00] Speaker 06:
So we will hear argument next in number 22-2255, Phillips, North America, versus Garmin in France.

[00:00:09] Speaker 06:
Mr. Thompson.

[00:00:12] Speaker 05:
Thank you, Your Honor.

[00:00:12] Speaker 05:
Good morning.

[00:00:14] Speaker 05:
Eli Thompson on behalf of Phillips.

[00:00:18] Speaker 05:
If it may please the court, I'll first discuss the Quai patent, the 377, and then the Root patent, the 007 patent.

[00:00:30] Speaker 05:
In regards to the Kwai patent, the issue related to circumstantial evidence and whether it was sufficient to overcome summary judgment challenge.

[00:00:39] Speaker 05:
The point that was made by Garmin to the district court, the assertion was, as the court quoted in the opinion, that Phillips had no evidence that any user has ever chosen to exercise out of the activity mode.

[00:00:56] Speaker 05:
And that's at Appendix 62.

[00:00:58] Speaker 05:
That's the judge's decision.

[00:01:00] Speaker 05:
What that meant was that they were asserting that no user, no customer, and there's six million of them, no customer had ever exercised with a watch in its default mode.

[00:01:11] Speaker 05:
That's the all-day mode.

[00:01:13] Speaker 05:
That's what the watch does by default.

[00:01:18] Speaker 05:
They said, actually, Garmin argued, and this is also in their brief.

[00:01:25] Speaker 06:
Exercising in default mode all by itself would not infringe, right?

[00:01:29] Speaker 06:
You have to exercise long enough in that to come to a sink.

[00:01:35] Speaker 05:
The watch is automatically designed to sync.

[00:01:42] Speaker 05:
By default, every four hours.

[00:01:44] Speaker 05:
By default, two conditions, four hours and when you reach 2,000 steps.

[00:01:48] Speaker 05:
So for example, you go to work in the morning, you haven't been exercising, sit at your desk until noon and go and exercise.

[00:01:57] Speaker 05:
You go and run 2,000 steps, it's going to sync while you're doing it.

[00:02:02] Speaker 05:
as a very simple example.

[00:02:04] Speaker 01:
You're saying that by happenstance it could be that somebody is exercising that they have not turned on that activity tracker and the sync occurs while they're exercising.

[00:02:16] Speaker 05:
Because the sync is triggered by exercise.

[00:02:20] Speaker 05:
By default, it's 2,000 steps.

[00:02:22] Speaker 05:
I can give you a citation for that.

[00:02:24] Speaker 05:
The 2,000 steps is explained at appendix 2735.

[00:02:29] Speaker 05:
It's Martin paragraph 192, where he explains exactly how these devices operate.

[00:02:36] Speaker 05:
They're essentially said to do two things.

[00:02:39] Speaker 05:
They will pause for four hours.

[00:02:46] Speaker 05:
And then if you become active and hit 2,000 steps, when that occurs, it sinks.

[00:02:52] Speaker 05:
And the evidence was that Garmin had

[00:02:56] Speaker 05:
encouraged its users to exercise in the default mode and then made even Move IQ to encourage that.

[00:03:04] Speaker 05:
That's why it's there.

[00:03:05] Speaker 05:
Garmin says to its customer base, we put this Move IQ in here in order for you to be able to track the different kinds of exercise that we want you to do in the default mode.

[00:03:17] Speaker 05:
And then the divide did just on that word of courage.

[00:03:21] Speaker 06:
So tell me if I understand the following correctly.

[00:03:26] Speaker 06:
You have an inducement argument, at least according to the district court's summer judgment opinion.

[00:03:34] Speaker 06:
Armand did argue that the encouragement element of inducement was not met at a separate point from, though obviously somewhat related to, what it tells people that might support or not support an inference that they're all the direct infringers, and that the district court did not actually reach

[00:03:59] Speaker 06:
that separate point about inadequate evidence of encouragement on Garment's part.

[00:04:06] Speaker 06:
I think that you're correct.

[00:04:08] Speaker 06:
Because I think to me they're quite distinct points.

[00:04:14] Speaker 06:
That is, to reverse on the finding that even on summary judgment there is insufficient evidence of direct infringement does not mean by itself that

[00:04:28] Speaker 06:
Garner couldn't win on its encouragement, that is, no encouragement argument, which was not ruled on.

[00:04:35] Speaker 05:
Right, I think normally in situations like that, the court would remand it.

[00:04:40] Speaker 05:
And I think that's what we're suggesting, is that the court should find that there was sufficient evidence, summary judgment, circumstantial evidence, that the activity had occurred, meaning people had exercised in the default mode, and the device was specially designed to sync during that, and then remand it.

[00:05:00] Speaker 01:
That there was encouragement to exercise

[00:05:05] Speaker 05:
while sinking, right?

[00:05:07] Speaker 05:
Well, as I was saying, the device, and this is explained on the sinking topic itself, right?

[00:05:14] Speaker 05:
So the device is automatically designed.

[00:05:17] Speaker 05:
And the expert testimony was.

[00:05:19] Speaker 01:
I understand, but doesn't our face log require that for inducement, you have to encourage the performance of the entire claim?

[00:05:27] Speaker 01:
So doesn't there have to be encouragement not only to,

[00:05:33] Speaker 01:
engaging activity without turning on the activity mode or activity tracking, and also that you would want to exercise enough to cause sink-in while you're exercising?

[00:05:46] Speaker 05:
I think that if I tell you, if I design my device and it operates in a particular way, and it's going to operate that way, and you as a customer don't have any control over that, I don't have to tell you

[00:05:59] Speaker 05:
Like, here, I want you to exercise.

[00:06:01] Speaker 05:
And by the way, my device does A, B, C, D. If I tell you to do that, and that's what the device does, then you've induced the accident of trench fire.

[00:06:11] Speaker 05:
And our case law is consistent with that, you think?

[00:06:13] Speaker 01:
I mean, because I understand what you're saying, but if you're not, it's a little bit outside of talking about the case law.

[00:06:20] Speaker 01:
Because I thought that case law required inducement of all steps of the method claim.

[00:06:25] Speaker 05:
It does.

[00:06:26] Speaker 05:
But I'm saying that the specific encouragement, if the encouragement

[00:06:32] Speaker 05:
is of an activity that covers, because of the operation of the device, those things.

[00:06:40] Speaker 05:
Because that's the way it's hardwired.

[00:06:42] Speaker 01:
You're saying that all that's required is that you encourage one step so long as the other steps would automatically follow.

[00:06:50] Speaker 05:
Yeah.

[00:06:50] Speaker 05:
If I say use my device, and my device only operates in one way because I have control over it, then I think you have induced the acts of infringement.

[00:06:59] Speaker 06:
Exercising by itself.

[00:07:02] Speaker 06:
in default mode does not automatically lead to the performance of all steps.

[00:07:09] Speaker 06:
It does only if you get to a sync.

[00:07:13] Speaker 05:
Is that okay?

[00:07:14] Speaker 05:
Well, this is something that the judge did note because our expert, Martin,

[00:07:19] Speaker 05:
at appendix 2740.

[00:07:21] Speaker 05:
This is the evidence.

[00:07:23] Speaker 05:
So the evidence before the judge.

[00:07:26] Speaker 05:
And again, this is summary judgment.

[00:07:28] Speaker 05:
He said, well, not every sink that occurs will happen while the user is exercising.

[00:07:33] Speaker 05:
And that's what the judge sees.

[00:07:36] Speaker 05:
But he didn't read the rest of the sentence.

[00:07:38] Speaker 05:
Didn't use the rest of the sentence.

[00:07:39] Speaker 05:
He says, it is inevitable that some sinks will occur during exercise.

[00:07:45] Speaker 06:
And so I guess what I and I think just stole

[00:07:50] Speaker 06:
not disputing that and not, for the moment, suggesting that that's insufficient to infer direct infringement in the mass of customers.

[00:08:03] Speaker 06:
But I guess I'm just trying to be clear that the separate ground that they argued for summary judgment, which was not moved on by the district court, namely that there is insufficient evidence as a matter of law

[00:08:17] Speaker 06:
of encouragement based on what they say in the, whatever that thing with the Q is, that that would be an open issue below and requires or may require under our inducement case law, much of it having to do with drug labels, encouragement of all of the steps, that that is a

[00:08:46] Speaker 06:
automatically, even if you win on reversing that summary judgment here, that there is enough evidence of direct infringement.

[00:08:58] Speaker 05:
Right.

[00:08:59] Speaker 05:
So that issue, the decision was that there was insufficient evidence to show that people were encouraged to exercise.

[00:09:08] Speaker 05:
And by the way, we have a list as footnote eight in our brief of a lot of the evidence

[00:09:15] Speaker 01:
How are you talking about direct infringement or induced infringement now?

[00:09:18] Speaker 05:
Well, right now I'm addressing what the decision was, because we're sort of contrasting.

[00:09:23] Speaker 01:
We did not talk about induced infringement.

[00:09:26] Speaker 01:
That's what I'm saying.

[00:09:27] Speaker 05:
Because that would be an open issue.

[00:09:29] Speaker 01:
We're asking new questions about the issue anyway.

[00:09:32] Speaker 01:
I understand.

[00:09:33] Speaker 01:
Could you answer the question instead of telling us what the district court held on it?

[00:09:39] Speaker 05:
Oh, I'm sorry.

[00:09:39] Speaker 05:
I thought I was answering the question.

[00:09:41] Speaker 05:
So the question is they did not address that.

[00:09:44] Speaker 05:
I, and, and that the, the, the evidence we believe that when the judge reviews it on remand, we'll find in our favor that there is sufficient evidence.

[00:09:53] Speaker 03:
You acknowledge that at best if we remand, you still have to show that there's enough evidence under whatever the proper legal theory is that you encouraged.

[00:10:03] Speaker 03:
possibly all the steps of the method.

[00:10:06] Speaker 03:
You're not here to cite case on that point because it wasn't briefed to us, right?

[00:10:09] Speaker 06:
Right, exactly.

[00:10:10] Speaker 06:
That's what I'm saying.

[00:10:11] Speaker 06:
Maybe this would be a good time for you to turn to the 007 package.

[00:10:15] Speaker 05:
I just wanted to say 007.

[00:10:19] Speaker 03:
I want to say, it's not as much fun, calories burned.

[00:10:23] Speaker 03:
Why is calories burned listed in the specification if it's not meant to be something that the claim is supposed to be able to actually measure?

[00:10:35] Speaker 05:
Right, so what the expert sort of explains this, right?

[00:10:41] Speaker 05:
So we were trying to be precise in the construction of the claim, following the rubric that you take.

[00:10:47] Speaker 05:
It's a two-step process.

[00:10:48] Speaker 03:
Right, no, we get all that.

[00:10:49] Speaker 03:
But the function, the district court said the function includes calories burned and had very solid

[00:10:58] Speaker 03:
grounding in the specification for doing that.

[00:11:01] Speaker 03:
Is there any reason why calories burned would have been called out in that portion of the specification, other than to say, hey, we're going to now disclose structure that allows one of skill in the art to actually, you know, do this measure calories burned.

[00:11:17] Speaker 05:
Yeah, we took a conservative view in saying that the identified algorithm, namely the waypoints, the series of waypoints, would lead directly to pace, speed, and distance.

[00:11:31] Speaker 05:
I think the specification takes a broader view that those steps could ultimately lead to.

[00:11:37] Speaker 05:
So our expert drew a direct tie between.

[00:11:40] Speaker 03:
Do you agree there's no structure for calories burned disclosed in your patent?

[00:11:45] Speaker 05:
I think that calories burned requires additional steps.

[00:11:50] Speaker 03:
Which are not disclosing your path.

[00:11:53] Speaker 03:
Right.

[00:11:53] Speaker 03:
So we tied it to what the... Therefore, if calories burned is part of the function as properly construed, these claims aren't definite.

[00:12:03] Speaker 05:
I think that... So I would disagree with you on this respect.

[00:12:08] Speaker 05:
If you take a function here, it's computing athletic performance feedback data.

[00:12:15] Speaker 05:
Then you look for what is the corresponding structure.

[00:12:18] Speaker 05:
And the structure is to have a processor running a series of timestamp waypoints from a GPS receiver.

[00:12:27] Speaker 05:
And that leads directly to pace.

[00:12:30] Speaker 05:
speed, and this elapsed distance, then you have shown corresponding structure to the function.

[00:12:38] Speaker 05:
If the function is broader, so there could be additional structures like calories burned, but you don't have corresponding structure that leads immediately to that, then that's not your corresponding structure.

[00:12:52] Speaker 01:
So do I understand you would be saying that because there's not corresponding structure in this specification,

[00:12:58] Speaker 01:
That means that we should interpret the claim to not include calories.

[00:13:05] Speaker 05:
That's what would happen as a result.

[00:13:09] Speaker 01:
It creates some weird precedent in this area, doesn't it?

[00:13:12] Speaker 05:
Well, I think that it follows specifically what Congress said to do, which is to take the function, which is intended to be broader, and then limit it to its corresponding structure.

[00:13:25] Speaker 05:
And that becomes the scope of the claim.

[00:13:27] Speaker 06:
One way to make what I think is just the point that Judge Stoll was saying about why it's odd.

[00:13:33] Speaker 06:
I mean, our precedent does suggest, I think, or say, that the inquiry is in two steps.

[00:13:42] Speaker 06:
another plane construction.

[00:13:45] Speaker 06:
And then you look to see if there's structure that supports it.

[00:13:49] Speaker 06:
You don't then say, oh, there isn't structure that supports some of it, and then go back and shrink what you've already construed to be the function so as to avoid the problem.

[00:14:01] Speaker 05:
Right.

[00:14:02] Speaker 05:
And what I would suggest, Your Honor, that if you rewrite the claim to say that it requires the calculation of calories burned, that this court does have precedent to say that that is improper.

[00:14:18] Speaker 05:
And actually, this court has explained why.

[00:14:20] Speaker 06:
Not that it requires it, but that it includes it.

[00:14:24] Speaker 05:
Well, I think that there are multiple cases that this court has had where the function.

[00:14:31] Speaker 06:
If a claim includes something and is indefinite, has to have something, the claim is indefinite.

[00:14:38] Speaker 05:
There have been multiple cases from this court where some embodiments don't have full structure.

[00:14:43] Speaker 05:
That has occurred.

[00:14:45] Speaker 01:
What do you think are your best cases?

[00:14:47] Speaker 05:
So I think that the best case I would direct the court to, excuse me for one second, would be I think that the Sisfield case, which is a very recent case from the court, talks about how there can be embodiments.

[00:15:12] Speaker 05:
And I believe that the, I'm starting to think there was one that

[00:15:16] Speaker 05:
was broad enough to be covered.

[00:15:18] Speaker 05:
This was about air pressure.

[00:15:19] Speaker 01:
I think CRC was broad.

[00:15:20] Speaker 01:
Let me ask you another question, because your time is limited.

[00:15:24] Speaker 01:
But my other question is, I think this is disputed, but that calories burned could be calculated using some data in addition to the three-way point data.

[00:15:38] Speaker 01:
In other words, the idea of calculating calories burned using

[00:15:45] Speaker 01:
waypoint data, it's not unheard of.

[00:15:48] Speaker 01:
It can be done.

[00:15:49] Speaker 01:
It's just you need to have additional data, too.

[00:15:51] Speaker 05:
That's exactly our point, right?

[00:15:54] Speaker 05:
So when the spec says that the series of timestamped waypoints of the GPS is used, it's absolutely correct.

[00:16:02] Speaker 05:
But we tied it to say that this step, that you shouldn't have too many extra steps.

[00:16:07] Speaker 05:
The spec needs to stay what the extra steps are.

[00:16:10] Speaker 05:
And our expert explained that the speed and the elapsed distance and the pace are set forth, and then explained that a person of ordinary skill in the art would know that speed is distance over time.

[00:16:25] Speaker 01:
These data would have to supply that information.

[00:16:27] Speaker 01:
I mean, you're saying it would have to be something that they would infer.

[00:16:31] Speaker 01:
It's not expressly stated in this specification, for example, that the formula for speed.

[00:16:40] Speaker 05:
I would suggest that it is.

[00:16:41] Speaker 05:
And that would be in Figure 11.

[00:16:43] Speaker 05:
It's Appendix 86.

[00:16:45] Speaker 05:
And that's mentioned in our brief at Page 6.

[00:16:48] Speaker 05:
So Appendix 86, Figure 11 says that current speed, which is when a person of ordinary skill in the art

[00:16:56] Speaker 05:
reads the patent and you say speed, they know that speed is miles per hour.

[00:17:03] Speaker 05:
And it's actually referenced in the boxes there in the figure.

[00:17:07] Speaker 05:
And same thing with pace, it's minutes per mile.

[00:17:11] Speaker 05:
And then the expert explained that, and this is Appendix 1017, Martin explains this,

[00:17:19] Speaker 05:
The specifications and the claims sufficiently disclose that I'm reading verbatim his testimony, which is unrebutted.

[00:17:28] Speaker 05:
The specification and claims sufficiently disclose an algorithm for computing a lapse distance, current or average speed, or current or average pace from a series of timestamped GPS waypoints.

[00:17:42] Speaker 05:
That's appendix 1017.

[00:17:43] Speaker 03:
But he doesn't say calories burned, correct?

[00:17:46] Speaker 05:
No, he did not say that.

[00:17:48] Speaker 05:
And I'm suggesting why.

[00:17:51] Speaker 05:
Because he's saying that those are the immediate consequence of the series of time stamps.

[00:17:57] Speaker 05:
So he did not suggest that the additional steps, whatever they may be for calories burned, was specified.

[00:18:04] Speaker 05:
And therefore, the claim is limited to what is specified.

[00:18:24] Speaker 02:
Good morning, Your Honors.

[00:18:25] Speaker 02:
May it please the Court?

[00:18:27] Speaker 02:
My name is Rachel Lamkin.

[00:18:28] Speaker 02:
With me is Lauren Dreyer, and we represent the Garmin Appellees.

[00:18:32] Speaker 02:
Starting with the 377s, Your Honor.

[00:18:35] Speaker 02:
Appellant wants to completely ignore a majority of the claim.

[00:18:39] Speaker 02:
The claim doesn't say, exercise while sinking.

[00:18:43] Speaker 02:
The claim says,

[00:18:44] Speaker 02:
that physiologic status data has to be monitored in real time.

[00:18:50] Speaker 02:
And limitation D says it's monitored and sent to the phone.

[00:18:55] Speaker 02:
It's important to take a step back.

[00:18:57] Speaker 02:
And as we explained in appendix 2623 and as admitted by both sides, the accused devices operate in two modes, an all-day data gathering mode and an in-activity mode.

[00:19:12] Speaker 02:
Inactivity is admittedly non-infringing.

[00:19:16] Speaker 02:
Phillips doesn't discuss it.

[00:19:17] Speaker 02:
The court spends all of its time on the accused infringing mode, which is all-day data gathering mode.

[00:19:24] Speaker 02:
And here's what happens.

[00:19:26] Speaker 02:
All day, right now, my Garmin watch is gathering my data, including my heart rate, which is a little high here today.

[00:19:33] Speaker 02:
And at some point, that all-day data gets synced if the user uses a phone with their watch.

[00:19:41] Speaker 02:
And lots of our users don't use a phone with their watch again, which is undisputed.

[00:19:46] Speaker 02:
If the user, for example, is walking to the store instead of driving to the store,

[00:19:50] Speaker 01:
And it's something you said earlier caught my attention.

[00:19:56] Speaker 01:
And I'm not sure that I agree with it.

[00:19:58] Speaker 01:
And that's what you said.

[00:19:59] Speaker 01:
This claim focuses on providing that information at real time.

[00:20:04] Speaker 01:
But what I see here is that the physiological status of the subject is received at least partially while the subject is exercising.

[00:20:12] Speaker 01:
That doesn't say real time continuously.

[00:20:16] Speaker 01:
What am I missing?

[00:20:18] Speaker 02:
Thank you, Judge Joel.

[00:20:19] Speaker 02:
Two things.

[00:20:19] Speaker 02:
One is the court below construed the claim to say real time.

[00:20:24] Speaker 02:
Phillips doesn't dispute that.

[00:20:25] Speaker 02:
That is to your question directly, Your Honor.

[00:20:27] Speaker 02:
Even some, even a little bit of physiologic status data has to be sent from the watch to the phone to the server

[00:20:35] Speaker 02:
back down to the phone, that's limitation D, while the user's exercising at least some physiologic status data.

[00:20:43] Speaker 02:
At least once, let's say for the sake of argument, at least once the current physiological status data, for example, my current heart rate, has to be seen on the phone while I'm exercising.

[00:20:56] Speaker 02:
That's required to entrench these claims.

[00:20:59] Speaker 02:
That never happens with the Garmin Watch.

[00:21:02] Speaker 03:
As we explain and as the judge... Is that part of limitation 1F?

[00:21:05] Speaker 03:
I thought this appeal just asks us to consider 1F.

[00:21:09] Speaker 02:
That no, Your Honor.

[00:21:10] Speaker 02:
Appellant tries to construe our briefing that way.

[00:21:12] Speaker 02:
But we say quite clearly in our brief that's not the case.

[00:21:15] Speaker 02:
And we discuss expressly.

[00:21:17] Speaker 02:
Did the district court grant you summary judgment based on some limitation other than 1F?

[00:21:23] Speaker 02:
No, Your Honor.

[00:21:24] Speaker 02:
But 1F, no.

[00:21:25] Speaker 02:
And that's all we need.

[00:21:26] Speaker 02:
All we need is 1F.

[00:21:27] Speaker 02:
1F says, Your Honor, that physiologic status data is monitored in real time.

[00:21:33] Speaker 02:
That's the judge's order on page 65.

[00:21:38] Speaker 02:
And the judge carefully, the district court carefully goes through the evidence, cites Dr. Martin, their experts, cites Dr. Martin's admission there's no physiologic status data in MOVE IQ.

[00:21:53] Speaker 02:
Cites their own admissions to our statements of unrefuted facts that there's no real time data in MOVE IQ.

[00:22:03] Speaker 02:
Cites, for example,

[00:22:05] Speaker 02:
the Vivoactive 3 manual, which says move IQ is only activity and duration.

[00:22:12] Speaker 02:
It's important to understand move IQ is just an accelerometer.

[00:22:16] Speaker 02:
All it does, and as the district court correctly relied on the evidence, the only thing Move IQ tracks is my movement when I started to walk, and when I stopped walking, and that it was a walk.

[00:22:30] Speaker 02:
There's no, as the district court correctly founds, no physiologic status data in Move IQ.

[00:22:38] Speaker 02:
Move IQ cannot infringe the claim.

[00:22:41] Speaker 01:
Can I ask you, I'm looking at page 3083, for example.

[00:22:46] Speaker 01:
This is one of those documents that's saying to say something like, thanks to Gromit, moveIQ users don't need to worry about starting or stopping a particular signed activity for it to get reported.

[00:22:57] Speaker 01:
MoveIQ automatically recognizes activities like blocking, da, da, da.

[00:23:02] Speaker 01:
And then it says, once synced, these reported activities are doable as part of the detailed timeline.

[00:23:08] Speaker 01:
Now, I understand your point to be, I guess, that that means that

[00:23:14] Speaker 01:
It's not going to be received at least partially while the subject is exercising.

[00:23:19] Speaker 01:
That's the limitation you're relying on.

[00:23:21] Speaker 01:
But it seems that perhaps this serves as circumstantial evidence that sometimes it might.

[00:23:28] Speaker 01:
It could coincidentally do that.

[00:23:30] Speaker 01:
Or it could happen if someone exercised at least 2,000 steps.

[00:23:34] Speaker 02:
No judge told, because as the district court correctly found, there's no physiologic status data in MOVE-IQ.

[00:23:41] Speaker 02:
None.

[00:23:42] Speaker 02:
No heart rate data.

[00:23:44] Speaker 02:
That is what the district court relied on.

[00:23:47] Speaker 06:
Can I just ask, so if you're in default mode and you're exercising, and it happens to be at a four-hour sync

[00:24:05] Speaker 06:
her and back to the firm.

[00:24:08] Speaker 02:
All data since the last time a sync happened.

[00:24:13] Speaker 06:
Does that include the heart rate data during that since the last time?

[00:24:18] Speaker 02:
It does, but it doesn't, because it's not physiological status.

[00:24:23] Speaker 02:
This pattern is about monitoring your physiological, among many things, monitoring your physiological status, at least partially while exercising.

[00:24:34] Speaker 06:
So I guess I'm maybe confused.

[00:24:39] Speaker 06:
So we hit the sixth mark.

[00:24:43] Speaker 06:
You've been running.

[00:24:44] Speaker 06:
You're running then.

[00:24:45] Speaker 06:
You were running the last 10 minutes.

[00:24:47] Speaker 06:
There's 10 minutes of heartbeat data, right?

[00:24:51] Speaker 06:
and that that's going up to the server and back to the phone.

[00:24:54] Speaker 06:
Why is it that way?

[00:24:55] Speaker 02:
Because there's no way to see what my physiological status was.

[00:25:00] Speaker 02:
The heartbeat doesn't count.

[00:25:02] Speaker 02:
It won't show me what the heartbeat is.

[00:25:04] Speaker 02:
It won't show you what the heartbeat is.

[00:25:05] Speaker 02:
It won't show you your current status of a heartbeat.

[00:25:08] Speaker 02:
It's batched data.

[00:25:10] Speaker 02:
There's no way to see physiologic status.

[00:25:13] Speaker 02:
There's no way to see what your heart rate was while you were exercising.

[00:25:18] Speaker 02:
It's a bunch of historic data.

[00:25:20] Speaker 02:
as the district court correctly found, and as the statement of undisputed facts, 44 and 45 that he relied on, it's not real-time data, it's batch data, and there's no way to see your heart rate.

[00:25:33] Speaker 02:
None.

[00:25:35] Speaker 02:
While you're exercising.

[00:25:36] Speaker 06:
Explain what you mean more concretely by batch data.

[00:25:39] Speaker 06:
I'm imagining that there is a graph or a chart.

[00:25:43] Speaker 06:
Is that incorrect?

[00:25:45] Speaker 02:
That's incorrect, Your Honor.

[00:25:46] Speaker 02:
What happens with the batch data?

[00:25:49] Speaker 02:
And again, this is the statement of undisputed facts.

[00:25:51] Speaker 02:
We're lied on by the court.

[00:25:53] Speaker 02:
What happens with batch data is it's all the data since the last sync.

[00:25:57] Speaker 02:
It doesn't break down what was happening when with all day data.

[00:26:02] Speaker 02:
You just get a dump of data that's been calculated by the server.

[00:26:06] Speaker 02:
It's been blended up.

[00:26:07] Speaker 02:
You throw all the ingredients, blend it up.

[00:26:10] Speaker 02:
That's just making it less precise.

[00:26:19] Speaker 06:
in some way.

[00:26:21] Speaker 06:
You're telling me that it's not organized in any way to tell that even though you have heartbeat data for the last four hours, that somehow it's in there that you can tell which part of it was the last five minutes?

[00:26:37] Speaker 02:
You cannot.

[00:26:38] Speaker 02:
So this is the important part.

[00:26:39] Speaker 02:
There's no way to tell what your, the status of your heart rate is in that moment.

[00:26:44] Speaker 02:
You will get two things, Your Honor.

[00:26:46] Speaker 02:
You'll get a graph

[00:26:48] Speaker 02:
you'll get a picture.

[00:26:49] Speaker 02:
So let's say I was walking from noon to 4.

[00:26:52] Speaker 02:
On my phone application, I will see a little icon of someone walking from 12 to 4.

[00:26:58] Speaker 02:
But it will not tell me what my heart rate was at any one of those moments.

[00:27:04] Speaker 02:
This morning, for example, what?

[00:27:06] Speaker 01:
Where is that discussed in the district court's opinion?

[00:27:10] Speaker 02:
The district court cites, at appendix 65, page 16,

[00:27:17] Speaker 02:
The district court cites three pieces of evidence.

[00:27:20] Speaker 03:
Are you at the bottom of 65 with that last paragraph?

[00:27:23] Speaker 03:
I am Judge Tarkin.

[00:27:24] Speaker 02:
Thank you.

[00:27:26] Speaker 02:
The judge cites that the data indicating physiological status of a subject is not real time.

[00:27:32] Speaker 02:
Then quotes, first, the Vivo Active User Manual.

[00:27:36] Speaker 02:
And Judge Stoll, that's at 3735.

[00:27:39] Speaker 02:
And the Vivo Active User Manual explains that the only data you get from Move IQ is the stop and start times of that activity.

[00:27:51] Speaker 02:
No physiologic status data.

[00:27:53] Speaker 02:
The next thing that the judge cites is Dr. Martin's depo, where he says.

[00:27:58] Speaker 06:
I just need to stop you, because I guess I'm confused about this.

[00:28:02] Speaker 06:
Is it possible to forget about move IQ not just completely forget about move IQ?

[00:28:08] Speaker 06:
I'm running along with my watch happens to be a four-hour sick a whole bunch of Whole bunch that's my word for batch.

[00:28:18] Speaker 06:
I understand how to go goes up and goes back down to the phone So what is it that tells us that what goes back to the phone is?

[00:28:27] Speaker 06:
does not actually communicate any information about your heartbeat in the last five minutes.

[00:28:36] Speaker 02:
That would ask us to prove a negative.

[00:28:38] Speaker 02:
It isn't there.

[00:28:39] Speaker 02:
The point I'm trying to make is Phillips has zero evidence that what you get back is physiological status, the current status of your heart rate.

[00:28:49] Speaker 02:
Because it doesn't happen.

[00:28:50] Speaker 02:
The watches don't work that way.

[00:28:52] Speaker 02:
If I want to know, as we explain in our briefing,

[00:28:55] Speaker 02:
If I want to know what my current heart rate is, I look at my watch.

[00:29:01] Speaker 02:
And Garmin, as we explained in our briefing, designs it that way.

[00:29:04] Speaker 02:
Because imagine this, Your Honors.

[00:29:06] Speaker 02:
Imagine if I have to know the current status of my heartbeat while I'm on a run or on a walk.

[00:29:11] Speaker 02:
I have to pull out my phone and look at it.

[00:29:14] Speaker 02:
I'm going to fall down.

[00:29:15] Speaker 02:
My wife says I fall down when I run anyway.

[00:29:18] Speaker 02:
But this is a terrible way to design a device.

[00:29:20] Speaker 02:
If I want to know my physiologic status, my current heart rate, I look at my watch.

[00:29:25] Speaker 02:
Think about this, Your Honor.

[00:29:27] Speaker 02:
If the data goes from my watch to my phone, to a server,

[00:29:32] Speaker 02:
Back down to my phone, that data is by definition historic.

[00:29:37] Speaker 02:
First problem for them, not real time.

[00:29:40] Speaker 02:
Second, there's no way to see what my heart rate was, the current status of my heart rate, by doing that operation.

[00:29:50] Speaker 01:
board in a place that you've identified here, I'm sorry, I think it's the court, cites the Martin deposition transcript.

[00:29:58] Speaker 01:
Is that also something that you're relying on for this very point?

[00:30:02] Speaker 02:
Yes, Your Honor.

[00:30:03] Speaker 01:
Does that actually state the negative?

[00:30:06] Speaker 01:
Yes, Your Honor.

[00:30:07] Speaker 01:
From what page would you identify?

[00:30:08] Speaker 02:
If you look at page 31 of our reading, if you look at page 31 of our opposition brief, I guess it's called a responsive brief here.

[00:30:18] Speaker 02:
Sorry.

[00:30:31] Speaker 02:
On page from everything from 28 to 31, we explain that there's no physiologic status data in the all-day data that we rely on.

[00:30:42] Speaker 02:
Even Judge Toronto, taking your hypothetical, if we take out Move IQ and only look at all-day data, there is no physiologic status data in all-day data.

[00:30:55] Speaker 03:
I would like to understand exactly where in your red brief you make this argument.

[00:30:59] Speaker 03:
We spent all this time focused on the bottom paragraph of 65.

[00:31:02] Speaker 03:
I'm not sure I even understood that that was part of the issues on appeal.

[00:31:08] Speaker 02:
If you look at page four of our brief, Your Honor, page four of our brief talks about the fact that they're designed in the opposite way.

[00:31:22] Speaker 02:
that if I want to look... Where are you on for?

[00:31:25] Speaker 02:
If I say

[00:31:27] Speaker 02:
Garmin's devices are designed to work in the opposite manner.

[00:31:31] Speaker 02:
The real-time data in the Garmin system is shown on the face of the device, on the face of the watch.

[00:31:38] Speaker 02:
Garmin's world-class training devices are designed not to send.

[00:31:42] Speaker 03:
What did you say?

[00:31:43] Speaker 03:
I had thought the issue on appeal was if the district court granted Summer Judgment a non-infringement because there wasn't enough evidence, he thought, from which to find

[00:31:54] Speaker 03:
that there's direct infringement because there's not enough evidence that anybody actually is exercising in default mode at the time of the sink.

[00:32:07] Speaker 03:
And I thought that was what their appeal was.

[00:32:10] Speaker 03:
And you said, he's right.

[00:32:11] Speaker 03:
There's not enough evidence of that.

[00:32:13] Speaker 03:
You're saying that's not what this appeal is about.

[00:32:15] Speaker 02:
No, Your Honor.

[00:32:16] Speaker 02:
That's the way Phillips characterizes the decision below.

[00:32:19] Speaker 03:
Tell me where you characterize it differently.

[00:32:23] Speaker 03:
where you tell me what the issue I have to decide is.

[00:32:30] Speaker 02:
We say multiple times that, in fact, we even admit in the briefing, let me find it, Your Honor, we say in the briefing that we admit that people will exercise in all-day mode.

[00:32:43] Speaker 02:
That's not the issue.

[00:32:44] Speaker 02:
The issue is whether a sync, sorry, whether physiologic status data

[00:32:50] Speaker 03:
Do you admit that there will be occasions where there will be a sync in default mode while a user is exercising?

[00:32:58] Speaker 02:
The watch is capable of doing that.

[00:33:00] Speaker 03:
Yeah, but do you admit that there's enough evidence from which a reasonable fact finder could find that that in fact happens and has happened?

[00:33:08] Speaker 02:
I wouldn't concede that here, but the arguendo, let's say that that happens.

[00:33:12] Speaker 02:
Let's say that right here I concede, and we're doing an arguendo.

[00:33:15] Speaker 02:
Right here I concede that a sync occurs while moving in all day mode.

[00:33:20] Speaker 02:
Our point, and we make this multiple times in the brief, that's not what the claim says.

[00:33:25] Speaker 02:
The claim doesn't say sync while moving.

[00:33:28] Speaker 02:
The claims say physiologic status data has to go in real time to the phone.

[00:33:35] Speaker 03:
And I guess I'm just struggling to see where in your brief you say that which I would take to be an alternative grounds for affirmance than the one that, you know, Phillips asked us to consider.

[00:33:50] Speaker 02:
Page 31, Your Honor.

[00:33:52] Speaker 02:
Page 31 of our brief.

[00:33:54] Speaker 02:
We even say, assume for the sake of argument, some user decides to follow Philip's dream scenario.

[00:34:03] Speaker 02:
But the claim requires, and then the exact language that I'm talking about, physiological status data on the application, at least partially while someone is exercised.

[00:34:14] Speaker 02:
And then we say, Philip's has proffered zero evidence that this happens.

[00:34:21] Speaker 02:
Page 31 details our argument that it's not that someone might exercise while the watch sinks, because the claim doesn't say exercise while sink.

[00:34:39] Speaker 02:
I believe 31 clearly covers the argument that I'm making now, Judge Starts.

[00:34:42] Speaker 02:
But if you disagree, I'm happy to talk about it.

[00:34:44] Speaker 06:
Thank you.

[00:34:45] Speaker 06:
Can you add to the evidence that

[00:34:54] Speaker 06:
Your point about the evidence is that, is this evidence that affirmatively indicates that the data that is sent on the sink does not include your last five minutes of heartbeat?

[00:35:12] Speaker 02:
Yes.

[00:35:14] Speaker 02:
The district court below is clearly saying

[00:35:17] Speaker 02:
that physiologic status data sent in real time is required in claim one.

[00:35:23] Speaker 02:
And appellant has provided zero evidence.

[00:35:26] Speaker 01:
In fact, is there any evidence that says that whatever data is sent doesn't include physiological data?

[00:35:35] Speaker 01:
For example, the Martin deposition testimony transcript.

[00:35:39] Speaker 01:
And can you cite to that if it does so?

[00:35:42] Speaker 01:
Look, an affirmative statement.

[00:35:44] Speaker 01:
that this is not taught, or this is not in the Garmin watch.

[00:35:47] Speaker 02:
Yes.

[00:35:48] Speaker 02:
That's exactly, yes, Judge Stoll, you're exactly correct.

[00:35:51] Speaker 02:
Judge Martin's deposition, that's Appendix 2685, where he admits there is no physiologic status data in move IQ.

[00:36:01] Speaker 02:
And is that complete?

[00:36:04] Speaker 02:
Yes, because as this court is trying to say, I understand your hypothetical, Judge Taranto, but I just want to know what data is in

[00:36:13] Speaker 06:
The data that gets sent up, it comes back at a sync in default mode.

[00:36:21] Speaker 06:
Notice I did not have to refer to it.

[00:36:24] Speaker 02:
It's all data that the watch collects since the last sync, including heart rate.

[00:36:31] Speaker 02:
So my heart rate data.

[00:36:37] Speaker 02:
to a time scale?

[00:36:39] Speaker 02:
It cannot.

[00:36:41] Speaker 02:
Physiological status is not collected or reported.

[00:36:45] Speaker 02:
It collects the information all day and displayed on a time scale.

[00:36:49] Speaker 02:
Not physiological status data.

[00:36:51] Speaker 02:
The only thing, and the reason they rely on move IQ, the only thing displayed is move IQ.

[00:36:56] Speaker 02:
I can, for example, so when I wake up in the morning, my watch collected data all night.

[00:37:01] Speaker 02:
And it will tell me what my average heart rate was.

[00:37:04] Speaker 02:
But it will not tell me what my heart rate was at any particular moment.

[00:37:08] Speaker 02:
As we explain in our brief, page 31, the only way to see current heart rate is to look at the watch.

[00:37:15] Speaker 02:
Any data that gets sent from the watch to the phone to the server and back to the phone, it does not show physiologic status data.

[00:37:27] Speaker 02:
And I did a terrible job on my briefing if the judges didn't gather that.

[00:37:30] Speaker 02:
But I think page 31 clearly conveys that.

[00:37:32] Speaker 01:
And more importantly, the- I'm looking at page 2685.

[00:37:37] Speaker 01:
What do you think was the best part of his testimony?

[00:37:51] Speaker 02:
The best part of his testimony, 2685, is 12 to 24.

[00:37:59] Speaker 02:
There's no physiologic data.

[00:38:01] Speaker 06:
I don't know what those numbers mean.

[00:38:03] Speaker 06:
I'm sorry, sir?

[00:38:04] Speaker 06:
I don't know what those numbers mean, 12 to 24.

[00:38:06] Speaker 02:
Oh, sorry, page 164, lines 12 to 24.

[00:38:10] Speaker 06:
Yeah, many transcripts.

[00:38:29] Speaker 02:
As the district court properly laid out, the claims require real-time physiologic status data.

[00:38:35] Speaker 02:
And that's the data that Phillips cannot show exists in all-day data, because it doesn't.

[00:38:52] Speaker 06:
That's correct, Your Honor.

[00:38:55] Speaker 02:
And what those?

[00:38:58] Speaker 02:
Yes.

[00:38:58] Speaker 02:
That is appendix 4146.

[00:39:06] Speaker 01:
And what about the other one?

[00:39:08] Speaker 01:
The plaintiff's statement of undisputed facts.

[00:39:10] Speaker 01:
Yes.

[00:39:10] Speaker 02:
So statement of undisputed facts.

[00:39:13] Speaker 02:
That's at 4146.

[00:39:13] Speaker 02:
And that's 4146.

[00:39:15] Speaker 02:
It's not in the joint appendix.

[00:39:18] Speaker 02:
4166.

[00:39:19] Speaker 02:
I misspoke.

[00:39:20] Speaker 02:
4166.

[00:39:23] Speaker 02:
And those are 44 and 45 of the Statement of Undisputed Facts.

[00:39:29] Speaker 02:
And 44 is critical, and the court properly relies on it.

[00:39:33] Speaker 02:
Move IQ does not send data in real time.

[00:39:37] Speaker 02:
And 45, Move IQ events are only reported after the sync occurs.

[00:39:44] Speaker 06:
My reaction by hearing that or reading that is that doesn't do it, because maybe what it sends later

[00:39:53] Speaker 06:
is including data from five minutes ago when it sits, as long as that data tells you what happened five minutes ago, that would be the claim.

[00:40:06] Speaker 02:
If you could get physiological status data in real time while exercising any amount, once, physiologic status data in real time while exercising on the phone, that would make this claim.

[00:40:20] Speaker 06:
What is this last page, PSGB?

[00:40:24] Speaker 02:
That is the plaintiff's affirmance of 44 and 45, which is on yes.

[00:40:30] Speaker 02:
This is on 4166.

[00:40:33] Speaker 02:
Also, I'd like to point out 4159, which is cited in our brief, page 31.

[00:40:40] Speaker 02:
At 4159, statement of undisputed fact 15, this goes to your point, Judge Toronto, the data that gets sent

[00:40:52] Speaker 02:
is all data since the last state.

[00:40:55] Speaker 02:
To your point, Judge Toronto, it's all data.

[00:40:58] Speaker 02:
There's no way to see, while I'm exercising.

[00:41:02] Speaker 06:
This doesn't say that.

[00:41:04] Speaker 06:
You can send all data, and you can see it minute by minute.

[00:41:08] Speaker 02:
Yes, Judge Toronto, but the burden is on them to show that that limitation is met, and they have no evidence of it.

[00:41:14] Speaker 02:
This doesn't deny that.

[00:41:16] Speaker 02:
But the court's decision does.

[00:41:18] Speaker 02:
But the court points out there's no real time.

[00:41:21] Speaker 02:
They have no evidence of real time physiologic status data set.

[00:41:27] Speaker 03:
Where is the district court's construction that requires the real time?

[00:41:31] Speaker 02:
Do we have that in our appendix?

[00:41:33] Speaker 02:
We do, Your Honor.

[00:41:34] Speaker 02:
It's in two places.

[00:41:35] Speaker 02:
It's on page 62 of the court summary judgment order.

[00:41:42] Speaker 02:
And it's also in the claim construction order, which is

[00:41:47] Speaker 02:
at 32, let's double check that, sorry, 34 of the appendix.

[00:41:55] Speaker 02:
An appellant never contests the court's plain construction that that physiologic status data happens to happen in real time.

[00:42:05] Speaker 02:
And we have a statement, undisputed fact, not disputed, that the data does not get sent in real time.

[00:42:19] Speaker 06:
you want to say about the other type?

[00:42:21] Speaker 02:
Only, as for the 007, which is what I call it as well, sir, that NOAA systems controls.

[00:42:27] Speaker 02:
They have to have the full scope of the limitation, and they don't.

[00:42:40] Speaker 05:
Well, I think I hopefully could be a little bit brief with that on this.

[00:42:46] Speaker 05:
I think that one thing that struck me is really how the points and arguments have changed.

[00:42:53] Speaker 05:
Like what was said to you here and what was said in the district court are completely different things.

[00:42:59] Speaker 05:
But I can't address them because they happen to be part of the record anyway.

[00:43:03] Speaker 05:
Let me talk about real time.

[00:43:06] Speaker 05:
So basically, the suggestion I heard argued to you was that real time equated to streaming.

[00:43:11] Speaker 05:
And that was our argument made.

[00:43:15] Speaker 06:
This is not helping me on what I'm confused about or what I want to hear.

[00:43:19] Speaker 06:
I want to hear about the specific point that was asserted that the data collected, the heartbeat data collected over the last four hours, assuming a default sync, that when it's sent up and comes back to the phone, that you don't have any evidence

[00:43:41] Speaker 06:
that that data will show the user what his or her heartbeat was the last five minutes.

[00:43:49] Speaker 05:
OK.

[00:43:50] Speaker 05:
Well, I will address that.

[00:43:51] Speaker 05:
Let me just point out that that wasn't an argument that was made first.

[00:43:55] Speaker 05:
But let's take a look at the claim that was asserted.

[00:43:59] Speaker 05:
It doesn't say up and back and reviewable and all these things that they're talking about now.

[00:44:05] Speaker 05:
The argument that was made in the district were related to a wearing clause.

[00:44:11] Speaker 05:
says, wherein the data indicating the physiologic status of a subject is received is partially while the subject is exercising.

[00:44:19] Speaker 05:
That was the assertion, that there was not evidence of that.

[00:44:23] Speaker 05:
Not this goes up, comes back.

[00:44:24] Speaker 03:
What claim limitation is that, and where can we find it?

[00:44:26] Speaker 05:
Oh, you may find that in Appendix 159, which is the patent, Claim 1, Element F, second wherein clause.

[00:44:36] Speaker 05:
That was the subject of the review for circumstantial evidence.

[00:44:41] Speaker 05:
So that's why I say that I think that sort of moving the ball here.

[00:44:45] Speaker 01:
I have to say, though, I hear what you're saying, but this language at page 865 of the district court's opinion does talk about, you know, displays only the type of activity the user completed and the duration of the activity, not, quote, data indicating a physiological status of a subject in what time is required by frame one.

[00:45:10] Speaker 01:
It does seem to be something the district court talked about.

[00:45:14] Speaker 01:
Am I misunderstanding something?

[00:45:16] Speaker 01:
Because it's right here on page 865.

[00:45:19] Speaker 05:
I think that it's what the judge was referring to.

[00:45:23] Speaker 05:
The judge was not accepting

[00:45:28] Speaker 05:
the evidence that shows that the step was occurred.

[00:45:35] Speaker 05:
And what the argument was to you here, I'm trying to join these two because they're sort of two slightly different things.

[00:45:45] Speaker 05:
The argument here today was that real time requires something other than receiving a batch that includes current data, including heart rate.

[00:45:54] Speaker 01:
It was focusing on display.

[00:45:56] Speaker 01:
And it was saying that

[00:45:58] Speaker 01:
It doesn't display it.

[00:46:00] Speaker 05:
Well, display isn't in the claim.

[00:46:07] Speaker 05:
It's really not in the element that was asserted as not being shown.

[00:46:11] Speaker 05:
And I would suggest that wasn't the thrust of the review.

[00:46:17] Speaker 05:
And that's not what was briefed on appeal.

[00:46:24] Speaker 05:
And I don't think that they argue that.

[00:46:27] Speaker 05:
I will say that the question of whether heart rate is in the batch that is

[00:46:37] Speaker 05:
is received, which is what the claim says, is in the batch of data that's received that the automatic sync is, I think, first of all, it was admitted.

[00:46:45] Speaker 01:
It doesn't have to be displayed.

[00:46:47] Speaker 05:
Right.

[00:46:47] Speaker 05:
It was admitted.

[00:46:49] Speaker 05:
I think they admitted that it's received.

[00:46:50] Speaker 05:
But then I'll also direct you to some appendix materials that show the heart rate.

[00:46:56] Speaker 05:
So this is part of Martin's declaration.

[00:46:59] Speaker 05:
Appendix 2761.

[00:47:02] Speaker 05:
which is a paragraph 234.

[00:47:04] Speaker 05:
He shows sort of the heart rate data that's available.

[00:47:09] Speaker 05:
This is a screenshot.

[00:47:11] Speaker 05:
And then there's another one here where, I believe this is correct, 2759.

[00:47:17] Speaker 05:
2759 to 2760 years from now.

[00:47:29] Speaker 06:
I did, because that's where the picture is.

[00:47:32] Speaker 06:
There's a time scale.

[00:47:34] Speaker 05:
There's time and then the heart rate.

[00:47:36] Speaker 06:
The horizontal axis is on, this is a time scale, right?

[00:47:40] Speaker 06:
Yeah.

[00:47:42] Speaker 06:
So if this is up to

[00:47:47] Speaker 06:
last 15 minutes and the vertical scale actually gives you a rate you can actually see, maybe not second by second, but you can see what your heart rate was and while you were exercising in the last five minutes.

[00:48:01] Speaker 06:
Is that right?

[00:48:02] Speaker ?:
Right.

[00:48:02] Speaker 05:
That's what this is showing as an example.

[00:48:08] Speaker 05:
By the way, we have pointed out that the question of whether heart rate is transferred or received wasn't really contested.

[00:48:17] Speaker 05:
We pointed that out in the blue brief at page 50, note 16.

[00:48:22] Speaker 05:
We actually referenced this.

[00:48:24] Speaker 05:
And it's also in the appendix 2625.

[00:48:27] Speaker 05:
And so this notion that heart rate data is not sent

[00:48:34] Speaker 05:
is just not true.

[00:48:36] Speaker 05:
And when a batch is sent, including up to current, and it's received, which is, of course, if you send it, it's received, then you're receiving the physiological data, the heart rate.

[00:48:49] Speaker 05:
And the evidence shows.

[00:48:50] Speaker 03:
So what about real time?

[00:48:52] Speaker 03:
Is that an issue we have to deal with?

[00:48:55] Speaker 05:
Well, the real time means just what the claim says.

[00:48:57] Speaker 05:
That's what the court was saying.

[00:48:59] Speaker 05:
When you receive something,

[00:49:00] Speaker 05:
at least partially while you're exercising, that's occurring in real time with your exercise, meaning like I'm exercising.

[00:49:08] Speaker 03:
Even if the data you receive while exercising is all historical?

[00:49:12] Speaker 05:
But it's not.

[00:49:14] Speaker 05:
The evidence shows that it does have historical, but it's also up to date.

[00:49:19] Speaker 05:
That hasn't been contested to my knowledge.

[00:49:21] Speaker 05:
It's up to date at that moment.

[00:49:25] Speaker 03:
How would you have us read page 31 of the red brief?

[00:49:28] Speaker 03:
Are the things that are being argued to us today part of the things that were briefed to us and that we are supposed to be deciding on appeal?

[00:49:36] Speaker 04:
OK, let me, if you don't mind, I will take it.

[00:49:41] Speaker 04:
I want to actually look at that.

[00:49:43] Speaker 03:
Is the red brief 31 that Ms.

[00:49:48] Speaker 03:
Lamkin directed us to, to say that the things she's arguing today I should have understood were in dispute on appeal?

[00:49:55] Speaker 05:
Yeah, 31.

[00:49:58] Speaker 03:
Let's take a look.

[00:50:02] Speaker 05:
She says, yes, I did highlight this while I was sitting there.

[00:50:07] Speaker 05:
The argument was that Phillips admits that data sent over periodic automatic syncs in the all-day mode contains all of the data since the last sync.

[00:50:16] Speaker 05:
That's true.

[00:50:16] Speaker 05:
That's what we say.

[00:50:17] Speaker 05:
All of the data including current.

[00:50:21] Speaker 05:
The data packet sent during automatic sync could be data from the last four hours or data from the last four days for all the data since.

[00:50:28] Speaker 05:
That's true.

[00:50:29] Speaker 05:
It is heart rate and the whole thing and up to current.

[00:50:33] Speaker 03:
I don't think that this is arguing that no heart rate is... Well, she says earlier, Phillips has proffered zero evidence that these limitations are met when the watch is in all-day mode, as the district court correctly found.

[00:50:48] Speaker 03:
Do you have a substantive response to that?

[00:50:50] Speaker 03:
And also, doesn't that put the issue in dispute for us on appeal, whether I realized it or not?

[00:50:57] Speaker 05:
I think I've shown the evidence that was provided that shows that the entire package.

[00:51:05] Speaker 05:
I don't think that this is really disputed, right?

[00:51:07] Speaker 05:
I think that the parties are standing here really not in dispute on this.

[00:51:11] Speaker 05:
When the sync occurs, the batch, including art rate data, is transferred.

[00:51:17] Speaker 05:
It's sent.

[00:51:18] Speaker 05:
that meets the claim limitation and the evidence shows that that's what she's saying.

[00:51:23] Speaker 03:
There's no physiological status sent in real time when the user is exercising in default mode.

[00:51:32] Speaker 03:
That's what she's saying and that you presented zero evidence of that.

[00:51:36] Speaker 05:
And I showed you evidence.

[00:51:39] Speaker 05:
So hold on one second.

[00:51:41] Speaker 03:
Is it the evidence you cited when you got up here?

[00:51:43] Speaker 05:
Yeah.

[00:51:43] Speaker 05:
I mean, that's an example of it.

[00:51:46] Speaker 05:
Yeah.

[00:51:46] Speaker 05:
Look at this record.

[00:51:48] Speaker 05:
There's no doubt that heart rate data is sent in that batch.

[00:51:52] Speaker 05:
That really is.

[00:51:53] Speaker 05:
There's plenty of evidence in this.

[00:51:55] Speaker 05:
Can I just double check?

[00:51:56] Speaker 06:
The 2761, this is a picture that is between paragraph

[00:52:07] Speaker 06:
That's the other side's expert, right?

[00:52:09] Speaker 06:
But that's us.

[00:52:11] Speaker 00:
That's you.

[00:52:12] Speaker 00:
Oh, okay.

[00:52:12] Speaker 06:
So you're expert.

[00:52:13] Speaker 06:
And this is what it looks like when this is the result of a sync or of something in so-called active mode.

[00:52:26] Speaker 05:
Right.

[00:52:27] Speaker 05:
I believe that this shows the batch, what the batch is.

[00:52:32] Speaker 05:
So I don't see here that it says exactly which way that that occurred.

[00:52:39] Speaker 05:
But he does explain that the batch is the batch hallway.

[00:52:43] Speaker 05:
It's always the same batch.

[00:52:44] Speaker 05:
They don't change what the batch of data is in one mode versus another.

[00:52:50] Speaker 05:
And the same is true, I think, that the other one

[00:52:56] Speaker 05:
fairly clearly shows because of what the data is.

[00:53:03] Speaker 06:
When you say the other one, what are you now pointing to?

[00:53:06] Speaker 05:
The other one that I was referring to is paragraph 233.

[00:53:10] Speaker 05:
2759?

[00:53:10] Speaker 05:
2758.

[00:53:22] Speaker 05:
2758 goes to 2759, and so it's these two.

[00:53:28] Speaker 05:
Here's the screen shot, and it shows the time scales at the bottom, and it's your heart rate data.

[00:53:39] Speaker 05:
So there's two examples showing that the data include.

[00:53:44] Speaker 05:
These are just examples, by the way.

[00:53:46] Speaker 05:
There's plenty more evidence in this record.

[00:53:49] Speaker 05:
Because again, like I was saying, this has never really been contested.

[00:53:54] Speaker 06:
I think we should call this argument.

[00:53:58] Speaker 06:
OK.

[00:53:58] Speaker 05:
Thank you, Your Honors.

[00:54:02] Speaker 05:
Appreciate it.