[00:00:00] Speaker 00:
The next case for argument is 24-1551 at Nexus versus Meadow.

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

[00:00:09] Speaker 04:
Good morning.

[00:00:10] Speaker 04:
My name is Charles Catropia, appearing for Ed Nexus.

[00:00:14] Speaker 04:
We appreciate the court here in our case.

[00:00:18] Speaker 04:
In the district court's issuance of a dismissal of this case in the pleading stage in a patent infringement case,

[00:00:28] Speaker 04:
Only one limitation was considered not sufficiently clear.

[00:00:34] Speaker 04:
That limitation provided, and this is a patent against Facebook alleging that their lead ads program infringes the Patency.

[00:00:46] Speaker 04:
The one element in issue requires retrieving a user profile associated with the recipient

[00:00:55] Speaker 04:
where the user profile comprises at least delivery method preferences.

[00:01:01] Speaker 04:
In the court's opinion, it concluded that plaintiff makes no allegations that meta lead ads retrieves any user profile that includes any delivery method preferences.

[00:01:16] Speaker 04:
The district court's finding fails for several reasons, one, that it

[00:01:22] Speaker 04:
failed to consider the allegations and evidence in all respect.

[00:01:27] Speaker 04:
It failed to consider them as true and in the light most favorable to the planet.

[00:01:34] Speaker 03:
Specifically, you're talking about limitation 1f now, correct?

[00:01:38] Speaker 03:
Yes, 1f, yeah.

[00:01:39] Speaker 03:
So I understood the court's analysis.

[00:01:42] Speaker 03:
It was that your allegations essentially equate contact information with delivery preferences.

[00:01:52] Speaker 03:
Is that a fair assessment of what the district court was saying?

[00:01:55] Speaker 04:
Yes, and that's expressly stated in the patent, that they can be the same.

[00:02:01] Speaker 03:
I've seen what you point to in the specification, but I guess I'm focused on it's a plausibility standard, and the district court just says right out it's not plausible to conclude that saying here's my address or here's my email address is the same thing

[00:02:28] Speaker 03:
as saying, I want to be contacted by, say, email.

[00:02:35] Speaker 03:
How do we review that?

[00:02:36] Speaker 03:
The district court applied a plausibility analysis and said, this is not plausible.

[00:02:41] Speaker 04:
Well, I think clearly when you think about Facebook asking all three billion users for their email address in the sense of an ad,

[00:02:54] Speaker 04:
It is very plausible that that email address is a preferred delivery method.

[00:03:01] Speaker 02:
I want to focus it a little bit more.

[00:03:05] Speaker 02:
It seems to me, on its face, more than plausible, maybe even obvious that contact information is a preferred delivery method.

[00:03:16] Speaker 02:
A preferred delivery.

[00:03:17] Speaker 02:
Yes, you're right.

[00:03:19] Speaker 02:
The real question is whether in the context of this claim that can be true because one E uses contact information and one F uses this different phrase.

[00:03:36] Speaker 02:
To me, that's what this comes down to.

[00:03:38] Speaker 02:
How much is it permissible to infer

[00:03:43] Speaker 02:
from this claim language alone that contact information cannot be a preferred delivery method?

[00:03:54] Speaker 04:
Well, I can't understand why it would be excluded as being a delivery method preference.

[00:04:01] Speaker 02:
Because what is your explanation for why different language is used in one E and one F?

[00:04:13] Speaker 02:
In what way would there be a sensible reason to use this different term in one F from the term used in one E?

[00:04:26] Speaker 02:
This is a quite open-ended question because I don't have an intuition about the answer.

[00:04:31] Speaker 04:
Well, I think the author of the patent uses them and the patent recognizes that an email address, contact information can be a

[00:04:44] Speaker 04:
preferred method of delivery.

[00:04:46] Speaker 04:
In fact, as we cite, it says in the specification, what is needed is a system and method of delivery.

[00:04:53] Speaker 02:
Right.

[00:04:54] Speaker 02:
I sort of want to, for purposes of this question, accept what you're saying about the spec and about the intuitive meaning of contact information.

[00:05:06] Speaker 02:
What is it except?

[00:05:07] Speaker 02:
I would like at least some stuff sometimes to come through that route.

[00:05:12] Speaker 02:
I'm trying to understand what to me is the one real trouble spot in your argument, which is the different usage of one phrase in one E and a different phrase in one F. And I may be misfocusing my question, but that's what I want help on.

[00:05:36] Speaker 04:
Well, I think if contact information can be a delivery method preference,

[00:05:42] Speaker 04:
then in the language of the claim, in one sense it might be used as contact information, in one sense more specifically for claim 1F, the claim says specifically delivery method preference.

[00:05:57] Speaker 00:
Well, I'm not clear.

[00:05:58] Speaker 00:
I'm just looking at the language at 1F.

[00:06:00] Speaker 00:
It seems to me what you're rewriting 1F to say is it retrieving information usable to discern the user's delivery method preference.

[00:06:11] Speaker 00:
But it doesn't say that.

[00:06:13] Speaker 00:
It requires retrieval.

[00:06:15] Speaker 00:
of the delivery method preferences themselves, which, in my mind, distinguishes those from the contact information in 1E.

[00:06:24] Speaker 04:
Well, I think we pointed out in our claim analysis that Facebook has this information, and it retrieves it whenever the process is executed.

[00:06:38] Speaker 04:
In other words, when you sign up and give your email address, it goes into your portfolio, into your profile.

[00:06:47] Speaker 04:
And whenever the system works its way through, it pulls that information.

[00:06:53] Speaker 04:
And that's what's being referred to in that claim, retrieves that information, including delivery method preferences.

[00:07:03] Speaker 02:
aspect of the language here that I've just been thinking about it.

[00:07:09] Speaker 02:
I don't know what to make of it.

[00:07:10] Speaker 02:
The question isn't quite whether delivery method preferences is different from contact information.

[00:07:16] Speaker 02:
In 1E, the very specific thing is you cause a test field to be displayed

[00:07:22] Speaker 02:
And then you receive contact information inputted into the text field by the recipient.

[00:07:30] Speaker 02:
And then you don't have that in 1F, because 1F is you already have some identifier information.

[00:07:40] Speaker 02:
And then you're going and finding it.

[00:07:41] Speaker 02:
So you don't need the user to give for the first time this identifying information.

[00:07:50] Speaker 02:
Nevertheless.

[00:07:53] Speaker 02:
Why would the patent drafter use the term contact information in 1E and not in 1F?

[00:08:02] Speaker 04:
Well, I think they're treating them as the same.

[00:08:07] Speaker 04:
Contact information can be delivered at their preference.

[00:08:12] Speaker 04:
And for that reason, you know, it might require claim construction

[00:08:17] Speaker 04:
But it's not necessarily a reason for dismissing the case.

[00:08:21] Speaker 02:
So just as a procedural matter, was there a claim construction proceeding?

[00:08:28] Speaker 02:
Was briefing underway on claim construction?

[00:08:31] Speaker 02:
No.

[00:08:32] Speaker 04:
This is the first approach to the Federal Circuit.

[00:08:37] Speaker 04:
We filed our complaint, and the defendant filed for a motion to dismiss based on failure to show this one element.

[00:08:46] Speaker 04:
It fairly showed most of the elements, and the court only focused on this one.

[00:08:51] Speaker 04:
So no claim construction.

[00:08:53] Speaker 00:
But did you request claim construction?

[00:08:55] Speaker 04:
Excuse me?

[00:08:56] Speaker 04:
Did you request claim construction?

[00:08:59] Speaker 04:
No.

[00:08:59] Speaker 04:
Well, we weren't at that stage, Your Honor.

[00:09:01] Speaker 02:
But did you say, in opposing the 12b6 motion, did you say you cannot find, on this particular ground, the absence of the plausible allegation without

[00:09:14] Speaker 02:
of doing a claim construction, and we haven't procedurally had the opportunity to do that.

[00:09:25] Speaker 04:
We raised that in our objection.

[00:09:28] Speaker 03:
Part of your opposition to the motion dismissed was we need claim construction, right?

[00:09:32] Speaker 00:
Yes.

[00:09:33] Speaker 00:
Did you proper any potential claim construction that would obviate what was being done?

[00:09:38] Speaker 04:
No, this was just in our response.

[00:09:40] Speaker 00:
But if you were to have to proper a claim construction,

[00:09:44] Speaker 00:
What I think I just heard you say is even if, say, even though they use contact in 1E and don't in 1F and they use delivery method preferences, the two mean the same thing?

[00:09:57] Speaker 00:
Is that your position on claim construction, that the two are synonymous?

[00:10:02] Speaker 04:
We didn't get to that stage, Your Honor, so I don't know that I can accurately express exactly how we would be arguing that.

[00:10:10] Speaker 03:
Well, the district court said they're sufficiently distinct that your allegations here are not plausible.

[00:10:18] Speaker 03:
Are you telling us that you have some good faith basis for a construction that would say they're not so distinct that this is not plausible?

[00:10:28] Speaker 03:
Or is that just not something you've even thought about yet?

[00:10:30] Speaker 04:
Well, in the description of the patent, it says contact information or other delivery method preferences.

[00:10:41] Speaker 04:
So it's equating the two in the body of the pattern.

[00:10:45] Speaker 00:
So your position on plane construction is that the two are synonymous.

[00:10:48] Speaker 00:
Yes.

[00:10:49] Speaker 00:
And that accounts for the distinction in language.

[00:10:51] Speaker 00:
Because typically, we would say if you use two different phrases in two different places, that establishes that the two are different.

[00:10:59] Speaker 00:
And you're kind of asserting the opposite of that, which is even though they're two phrases, they're synonymous.

[00:11:05] Speaker 00:
Yes, you're right.

[00:11:07] Speaker 04:
And with regard to whether there's expressed evidence that a Facebook user selects and identifies their contact information as a delivery method preference, I would point the court to the ad from Facebook that is shown in the appendix on page 432 and referenced in exhibit D, where it's an ad for the sale of homes.

[00:11:35] Speaker 04:
And the ad asks the user, how many bedrooms do you want?

[00:11:39] Speaker 04:
And you can put in the number of bedrooms.

[00:11:41] Speaker 04:
Then the ad asks, quote, how would you prefer we contact you?

[00:11:47] Speaker 04:
Close quote.

[00:11:49] Speaker 04:
To that, the user responds with an email address, a phone number, an address, or whatever.

[00:11:56] Speaker 04:
And the user's answer is submitted into their profile.

[00:12:02] Speaker 04:
Providing an email address in that case where the ad asks, how would you prefer we contact you, is an express identification that it is a delivery method preference.

[00:12:17] Speaker 04:
And that was not considered by the court.

[00:12:20] Speaker 02:
So this is my recollection.

[00:12:24] Speaker 02:
Just tell me if this is right and if not.

[00:12:32] Speaker 02:
I don't think there's any dispute that Exhibit B, not D, but Exhibit B, both of them are referenced in the First Amendment complaint, no doubt about that.

[00:12:47] Speaker 02:
And there's no dispute that Exhibit B was argued by you in response to the 12b6 motion.

[00:12:56] Speaker 02:
I think maybe Exhibit D was not

[00:13:00] Speaker 02:
argued by you in the 12b6 motion.

[00:13:03] Speaker 02:
And so there's a dispute about whether, even though had you argued it, it surely should have been considered.

[00:13:11] Speaker 02:
But you didn't argue it, so it's a little hard to fault the district court on.

[00:13:14] Speaker 02:
So that's what you now just said, is if you look at exhibit D, it's quite clear.

[00:13:22] Speaker 02:
But what if the other side is right

[00:13:27] Speaker 02:
in what I understand to be their point, that Exhibit D cannot be considered simply because you didn't, not simply because you did not advance that to the district court.

[00:13:39] Speaker 04:
The defendant argues that we did not advance it.

[00:13:42] Speaker 04:
And if you look in our reply to their motion, it's referenced two or three times.

[00:13:50] Speaker 04:
The opposition to the vote.

[00:13:52] Speaker 04:
Yes, the opposition.

[00:13:53] Speaker 04:
The motion before the district court

[00:13:57] Speaker 02:
Am I remembering that you made reference to it not with respect to 1F, but with respect to other claim elements?

[00:14:07] Speaker 04:
Yes, it's just referenced generally.

[00:14:09] Speaker 04:
And the court is directed to it as showing evidence to the issue that was before the court.

[00:14:19] Speaker 04:
Because the court had to consider seven different elements, all of which are addressed in our response.

[00:14:27] Speaker 04:
And we refer to this, for example, this one ad that I just mentioned, this reference in Exhibit D, and many other reference as well.

[00:14:40] Speaker 04:
And the court just failed to consider it.

[00:14:43] Speaker 04:
The court found that there was no allegation made with regard to this particular issue, when indeed it was.

[00:14:50] Speaker 04:
And another very specific point in Exhibit D

[00:14:56] Speaker 04:
is found on page 102 of the appendix, where it shows Facebook has 10 million advertisers, and it gives them information on how to put out an ad.

[00:15:12] Speaker 04:
At page 102, there is shown a display of what Facebook presents to advertisers, and it shows a list of information under the categories email, phone, address,

[00:15:25] Speaker 04:
And under categories, the first one is contact as email phone address.

[00:15:33] Speaker 04:
And then the Facebook ad says, tailor your question to lead ads so you uncover their preferences.

[00:15:43] Speaker 04:
To me, that is a direct or certainly a presumption that Facebook recognizes that whenever you give your email address,

[00:15:52] Speaker 04:
They're asking you for an address that advertisers can reach you with.

[00:15:57] Speaker 03:
Council, let me ask you just one other thing.

[00:16:00] Speaker 03:
The district court only talked about 1F and finding that deficient didn't address the other arguments that META had made, but they asked us to affirm on the alternative grounds of deficiencies on 1E.

[00:16:12] Speaker 03:
And as I understand your claims, it's conditional.

[00:16:17] Speaker 03:
You either practice 1E or you practice 1F.

[00:16:20] Speaker 03:
Yes.

[00:16:22] Speaker 03:
Do you agree that lead ads have to be capable of doing 1E and capable of doing 1F?

[00:16:30] Speaker 03:
Not necessarily at the same time.

[00:16:32] Speaker 03:
But in some instances, it has to be able to do E. In other instances, it has to be able to do F. Is that required?

[00:16:40] Speaker 04:
Well, for patent infringement, it wouldn't be.

[00:16:42] Speaker 04:
But for Facebook lead ads, it does occur.

[00:16:47] Speaker 04:
But for infringement, A or B would result in infringement.

[00:16:54] Speaker 03:
And your allegations are that lead ads does at times practice one E and at other times practices one F.

[00:17:02] Speaker 03:
Both of those are infringing in your allegations.

[00:17:06] Speaker 04:
Well, I think that does occur.

[00:17:07] Speaker 04:
But I think our allegations were targeted to the court finding that 1F was not found.

[00:17:15] Speaker 04:
And so 1F is found in the second sequence of activity that the patent claim covers.

[00:17:23] Speaker 04:
But you could, you can trace every element on the Facebook lead ads.

[00:17:31] Speaker 03:
For you to prevail on this appeal, we have to grapple with the alternative grounds for our firmness.

[00:17:37] Speaker 03:
Do you agree with that?

[00:17:38] Speaker 03:
Well, the court didn't consider that.

[00:17:40] Speaker 03:
But do we have, it's briefed to us, do we have to reach it or do we not have to?

[00:17:44] Speaker 03:
I don't think so, Your Honor.

[00:17:46] Speaker 03:
if we didn't reach it would you agree that it has a chance to renew that argument back at the district court as well as the other ones that weren't reached?

[00:17:53] Speaker 04:
They could and we would certainly welcome the case to be remanded with the right to file an amended complaint with allegations because there are many allegations that can be

[00:18:07] Speaker 04:
raised.

[00:18:09] Speaker 04:
And the problem is, we were not given the opportunity to do it.

[00:18:13] Speaker 00:
OK, can I just interrupt, because time is short.

[00:18:14] Speaker 00:
I just had a couple of housekeeping questions.

[00:18:17] Speaker 00:
One is, you never challenged the district court's standing order, right?

[00:18:21] Speaker 00:
Yes, you're right.

[00:18:22] Speaker 00:
And you didn't seek leave to further amend the complaint, just to be clear.

[00:18:26] Speaker 04:
That's right, because the court said it would not be granted.

[00:18:30] Speaker 04:
And the standing order precluded a review of what the court had decided under the court's statement.

[00:18:37] Speaker 00:
And then, as I understand from the record, there's a pending ex parte re-exam at the PTO.

[00:18:45] Speaker 00:
What is the status of that?

[00:18:47] Speaker 00:
Has there been further development?

[00:18:51] Speaker 04:
It's proceeding.

[00:18:52] Speaker 04:
The Patent Office has determined that other claims are patentable.

[00:19:01] Speaker 04:
But this one claim, which is under review, is now before the patent

[00:19:07] Speaker 00:
So if the PTAB agrees with the examiner that 1 and 4 are rejected, then what consequences, if any, does it have to this case here, your district court case?

[00:19:21] Speaker 04:
Well, the patent will obviously issue another claim that the patent always has indicated is patentable.

[00:19:33] Speaker 04:
to postpone this proceeding pending the outcome of the patent office action, they refused.

[00:19:42] Speaker 00:
So we go back to delay which proceeding, one in the district court or the justice appeal?

[00:19:48] Speaker 04:
The one in the district court.

[00:19:51] Speaker 00:
Thank you.

[00:19:52] Speaker 00:
Let's hear from the other side.

[00:20:19] Speaker 01:
The patentee used different words, Judge Tronto, because the patentee meant different things.

[00:20:27] Speaker 01:
Contact method preferences are not contact information.

[00:20:31] Speaker 02:
How can we decide that without a full claim construction proceeding?

[00:20:36] Speaker 01:
Neither party advocated for a claim construction.

[00:20:38] Speaker 01:
We certainly didn't advocate for anything other than the normal theme of the words, no particular meaning.

[00:20:45] Speaker 01:
But importantly, the patent treats the two as distinct.

[00:20:49] Speaker 01:
And Ed Nexus has continuously treated the two as distinct.

[00:20:53] Speaker 02:
So to say that A and B are distinct can mean they are non-overlapping.

[00:20:59] Speaker 02:
It can also mean A is a proper subset of B, or B is a proper subset of A. They don't need, for their case,

[00:21:09] Speaker 02:
that they would be perfectly happy if contact information was one form of preferred delivery method.

[00:21:17] Speaker 02:
And the word distinct does not negate that conclusion.

[00:21:23] Speaker 01:
Your Honor, I don't think they've ever made that argument, that one is a subset of the other.

[00:21:29] Speaker 01:
One is not a subset of the other, but their argument.

[00:21:31] Speaker 02:
I assume they have not used that kind of, I don't know,

[00:21:35] Speaker 02:
mathematical or logical terminology, but they say over and over again, the spec makes clear what actually English language would also suggest, that contact information is one kind of preferred delivery method.

[00:21:52] Speaker 02:
I think you get the, I mean, it seems to me as a purely as a matter of language, of course, contact information is a, is a preferred delivery method.

[00:22:01] Speaker 02:
Why else are you giving contact information?

[00:22:04] Speaker 02:
So you need the argument that says, because different one term is used in one E and one term is used in one F that kind of, um, you can never have under case law or something.

[00:22:17] Speaker 02:
a construction that allows the different terminology to be in the subset relation.

[00:22:26] Speaker 02:
Do we really have that kind of case law?

[00:22:29] Speaker 02:
I assume we do have a general practice, general rule that if different words are used, they're supposed to mean different things.

[00:22:38] Speaker 02:
But really, is that so absolute as to preclude one being sometimes part of the other?

[00:22:48] Speaker 01:
Your Honor, we would disagree that in this case, one is sometimes part of the other.

[00:22:52] Speaker 01:
And again, they have not made that argument.

[00:22:54] Speaker 01:
They're not saying that a particular piece of contact information is also a type of delivery method preference.

[00:23:01] Speaker 01:
What they're saying is that in some circumstances, delivery method preferences can be discerned from the contact information that's provided.

[00:23:11] Speaker 03:
I think that's only part of what they're saying.

[00:23:13] Speaker 03:
If I can go back to what the procedural question Judge Tarantula was asking.

[00:23:17] Speaker 03:
At 8403, as part of their opposition to your motion to dismiss, their first argument is that your motion is premature because it relies on a particular admittedly implied construction of delivery method preferences.

[00:23:33] Speaker 03:
Why isn't that correct that your whole position does rely on an implied very narrow construction?

[00:23:42] Speaker 03:
of delivery method preferences, and why isn't it best, if you're right, that we need to remand this for a full claim construction process?

[00:23:50] Speaker 01:
Well, Your Honor, we have never advocated for anything other than the ordinary meaning of these terms, and certainly they have never advocated.

[00:23:56] Speaker 03:
Well, maybe they don't have the ordinary meaning here.

[00:23:58] Speaker 01:
I mean, I don't know.

[00:23:59] Speaker 03:
Claim construction wasn't done, and they opposed your motion, as I think they're allowed to, by saying it's premature.

[00:24:06] Speaker 03:
We need claim construction.

[00:24:08] Speaker 01:
Well, Your Honor, they at least have to say why they need claim construction.

[00:24:11] Speaker 01:
They at least have to have to oppose it in a way that's meaningful.

[00:24:15] Speaker 01:
And if we step back and think about the context of this patent, the patent begins in the background by explaining what the prior art did.

[00:24:24] Speaker 01:
It had email addresses.

[00:24:26] Speaker 01:
And it sent advertising to those email addresses.

[00:24:29] Speaker 01:
And it had the effect of putting advertisers in a bad light because people were getting emails that they didn't want.

[00:24:34] Speaker 01:
And so it takes a different tack.

[00:24:36] Speaker 01:
And it says, well,

[00:24:37] Speaker 01:
Beyond these pieces of information, we want to extract the user's preferences for delivery methods in addition to these pieces of contact information.

[00:24:48] Speaker 01:
Counsel cited to appendix page 102, which is part of exhibit B, to the first amended complaint.

[00:24:54] Speaker 01:
And what you'll see there in their description of how the system operates that they've accused of infringement, there are five distinct

[00:25:03] Speaker 01:
contact methods provided, five pieces of information, two email addresses, two phone numbers, and an address.

[00:25:13] Speaker 01:
The idea of the invention is that those pieces of contact information, yes, they tell you various ways that you can contact this individual, but advertisers wanted more in their view, and they wanted to know particularly the preferences that users had for how they would be contacted.

[00:25:34] Speaker 01:
None of that is in exhibit B at page 102, nor do they say it is.

[00:25:41] Speaker 01:
Their argument is that, OK, let's imagine a situation where a user only enters one field, and then the advertiser figures that out.

[00:25:50] Speaker 01:
The advertiser can then discern that that must be a contact method preference.

[00:25:55] Speaker 02:
That's not a very attenuated line of reasoning.

[00:25:59] Speaker 01:
The problem with the line of reasoning, Your Honor, is that the claim is not directed to what gets discerned downstream.

[00:26:06] Speaker 01:
It's directed to what is already in the database.

[00:26:11] Speaker 01:
Advertisers in the system that they've accused want information in the forms.

[00:26:16] Speaker 01:
The advertisers take the information.

[00:26:18] Speaker 01:
Some advertisers might pick email.

[00:26:19] Speaker 01:
Some advertisers might pick email, phone number, street address.

[00:26:22] Speaker 01:
It's up to the advertisers.

[00:26:24] Speaker 01:
All the system does that they've accused of infringement

[00:26:27] Speaker 01:
All it does is it pre-fills the forms that advertisers, you know, the pieces of information that advertisers ask for that the system happens to know.

[00:26:37] Speaker 01:
That's all it does.

[00:26:39] Speaker 01:
Now, they have pointed to appendix page 432 today.

[00:26:43] Speaker 01:
And I should point out that that was not in the record anywhere.

[00:26:46] Speaker 01:
They created that image for the purposes of this appeal.

[00:26:51] Speaker 01:
It's only referenced to the extent they say it is.

[00:26:55] Speaker 01:
at a URL that's in Exhibit D, which they didn't raise anyway.

[00:26:58] Speaker 01:
In Exhibit D. Exhibit D, right.

[00:27:00] Speaker 01:
That's what they pointed.

[00:27:01] Speaker 02:
And that's the one that their opposition to 12b6 cited but didn't rely on in the 1f discussion.

[00:27:10] Speaker 02:
Do I remember that right?

[00:27:12] Speaker 01:
You do remember that correctly, Your Honor.

[00:27:14] Speaker 01:
They cited it at the very end of their opposition, and they cited it in respect to what they had put

[00:27:21] Speaker 01:
Meta unnoticeable.

[00:27:22] Speaker 01:
But when they talk about why limitation 1F, they had plausible credit.

[00:27:26] Speaker 01:
They only refer to exhibit B. But the problem with what they show on appendix page 432 is not just that it's forfeited or that it was not in the record below.

[00:27:38] Speaker 01:
It's that it doesn't help them.

[00:27:40] Speaker 01:
Because it's an example of an advertiser wanting to learn a communication preference.

[00:27:46] Speaker 01:
And what the system tells the advertiser is,

[00:27:50] Speaker 01:
Well, why don't you formulate a custom question?

[00:27:52] Speaker 01:
We'll let you create a question on the fly that you can ask the users about.

[00:27:57] Speaker 01:
And the question is, how do you want to be contacted?

[00:28:01] Speaker 01:
That is an inquiry about a user's delivery method preference.

[00:28:06] Speaker 01:
And it's presented as a custom question for the simple reason that it's not in the system already.

[00:28:12] Speaker 01:
So Your Honor, there is a difference between a delivery method preference

[00:28:17] Speaker 02:
and contact information?

[00:28:18] Speaker 02:
Does what you just said square with the use of the indefinite article A in front of what delivery method preference, or I guess not A, at least delivery method preferences?

[00:28:42] Speaker 02:
If you've given one, presumably, and one and only one,

[00:28:47] Speaker 02:
Um, that is a, a, um, delivery method preference.

[00:28:54] Speaker 02:
And if the advertiser, if you've given several, the advertiser may want to know which one is best, but the first would still fall within this language, right?

[00:29:03] Speaker 02:
This doesn't say, um, you know, the single preferred delivery method.

[00:29:10] Speaker 02:
Okay.

[00:29:11] Speaker 02:
Do you want to dispute my characterization?

[00:29:14] Speaker 01:
Whether it requires one or more is something that

[00:29:17] Speaker 01:
the parties have not gotten into.

[00:29:19] Speaker 01:
But the issue is it at least requires one preference.

[00:29:22] Speaker 01:
And a preference is a preference for a delivery method.

[00:29:25] Speaker 01:
It's not just a piece of contact information.

[00:29:28] Speaker 03:
You keep saying that, but I don't know if that's right.

[00:29:32] Speaker 03:
I mean, you argue in your red brief right at the first page, mere contact information cannot plausibly double as the claimed delivery method preferences.

[00:29:43] Speaker 03:
And you say that's an implausible inference that one could even discern delivery preferences from contact information.

[00:29:53] Speaker 03:
If I find that an entirely plausible allegation, what do I do with this case?

[00:30:00] Speaker 01:
you affirm on the alternative ground of limitation 1E.

[00:30:04] Speaker 03:
We could come to that, but is that, should I read that as a concern?

[00:30:08] Speaker 03:
I know you don't think it's plausible, but if I think it's plausible, does that mean I cannot affirm on the 1F grounds?

[00:30:14] Speaker 01:
If you think it was an abuse of, well, let me step back.

[00:30:19] Speaker 01:
If the court finds that you disagree that it was plausible,

[00:30:24] Speaker 01:
or that it was implausible, then I think you have to get to limitation 180.

[00:30:28] Speaker 01:
I mean, that was the basis of the district court's analysis, was the implausibility.

[00:30:33] Speaker 01:
And it, you know, I know that I've said this a couple of times, but it is implausible because what they're trying to extract from users and send on to advertisers is how the users want to be contacted in a system

[00:30:46] Speaker 01:
in which the user signed up for a social media platform and they told the host of the social media platform how they wanted it to contact it with an email address.

[00:30:56] Speaker 03:
I think I understand your question, but let me just be sure.

[00:30:59] Speaker 03:
J9 is the one sentence analysis on this point of the district court.

[00:31:03] Speaker 03:
The district court says the court finds

[00:31:07] Speaker 03:
my emphasis on fines, contact information sufficiently distinct from delivery method preferences to find that plaintiff's allegations insufficient to state a plausible claim for direct infringement.

[00:31:20] Speaker 03:
I don't know whether to read that as a finding of fact by the district court, which I think you can see the district court can't do on motion to dismiss, or an implicit claim construction that contact information is, as you argue,

[00:31:33] Speaker 03:
so distinct from delivery method preferences that these allegations aren't plausible, but then I'm stuck with, I think the plaintiff asked for the opportunity to have claim construction.

[00:31:47] Speaker 03:
Which is it?

[00:31:48] Speaker 03:
Is it a factual finding that's premature?

[00:31:50] Speaker 03:
Is it an implicit claim instruction that's premature?

[00:31:53] Speaker 03:
Or is it something else?

[00:31:55] Speaker 03:
It's something else.

[00:31:57] Speaker 01:
OK.

[00:31:57] Speaker 01:
So I think if you read that in context, Your Honor, this is the part of the opinion where the district court is responding to the one argument Ed Nexus did make, where the two types of information, one can be sort of gleaned from the other.

[00:32:11] Speaker 01:
And the district court understood that to be akin to a doctrine of equivalence analysis.

[00:32:15] Speaker 01:
They mentioned doctrine of equivalence in their complaint.

[00:32:19] Speaker 01:
And I think the district court went a little farther than it needed to here in saying that, at nexus, equates pre-filled forms based on specific contact information as equivalent to the user's delivery method preferences.

[00:32:33] Speaker 01:
And then what you see in that next sentence that your honor just read is the district court's analysis of that hypothetical doctrine of equivalence theory.

[00:32:40] Speaker 01:
That's how I read it.

[00:32:43] Speaker 01:
I would like to talk about limitation 1e, because I think at this point of the case, there's nothing really a nexus can do.

[00:32:50] Speaker 01:
Because at the district court.

[00:32:53] Speaker 02:
Before you get to that, I think Judge Stark asked your counterpart a question about whether, because this is a method claim, it might not matter in an accusation that your users or your system performs this method, whether

[00:33:11] Speaker 02:
There would be infringement if all it ever did was perform one F and not one E because these are alternative conditions.

[00:33:25] Speaker 01:
That's not how we read the court's case law.

[00:33:27] Speaker 01:
That's not how we read HITERA.

[00:33:29] Speaker 02:
In a method claim, yeah?

[00:33:31] Speaker 01:
A method claim, Your Honor, that they have accused a system of infringement.

[00:33:37] Speaker 01:
When it's used.

[00:33:38] Speaker 01:
Well, they've accused the system as the accused instrumentality.

[00:33:41] Speaker 01:
They have never said to the district court that they only needed to prove 1F and they didn't need to prove 1E.

[00:33:47] Speaker 01:
So this argument about an alternative, like two branches of the claim, they never make that argument.

[00:33:52] Speaker 01:
That's forfeited.

[00:33:53] Speaker 01:
And on appeal, they have not defended that limitation 1E is in the accused system.

[00:33:59] Speaker 01:
So at this point, they're stuck.

[00:34:01] Speaker 01:
They forfeited the argument they made before, and they didn't make on appeal the argument they made below.

[00:34:06] Speaker 01:
There's no way for them to get out of this when it comes to limitation money.

[00:34:10] Speaker 01:
But, Your Honor, back to the branching of the claim.

[00:34:15] Speaker 01:
We don't need High Terra to say that you can have a system that only performs one part of a claim in order to show infringement.

[00:34:24] Speaker 01:
We understand that case to say,

[00:34:26] Speaker 01:
that the computer in that case had to be programmed to perform both branches.

[00:34:30] Speaker 01:
But more importantly, Your Honor, when AdNexus got its patent, or when the applicant at that point got its patent, it argued that the reason that it should get its patent was because the prior art didn't teach this branched method with all the limitations being performed.

[00:34:49] Speaker 01:
That's what it argued to the patent office.

[00:34:51] Speaker 01:
So Nexus should not be able to wiggle out of an argument like that and accuse the system of infringement, which- That's feeling, I don't know, very claim construction-y.

[00:35:01] Speaker 02:
I mean, we don't have.

[00:35:07] Speaker 01:
Your Honor, there's no dispute about how those branching limitations work to my knowledge.

[00:35:15] Speaker 01:
And they have not, on appeal, argued that the

[00:35:20] Speaker 01:
the lead ad system performs 1E.

[00:35:23] Speaker 01:
That's the only thing they argue below.

[00:35:25] Speaker 01:
They never said to the district court that they didn't have to meet limitation 1E.

[00:35:30] Speaker 01:
That's something they've come up with now.

[00:35:32] Speaker 01:
It's something we disagree with.

[00:35:33] Speaker 01:
It's something we think the case law doesn't support.

[00:35:37] Speaker 03:
Can I just ask you, if you don't mind, on the motion to amend?

[00:35:41] Speaker 03:
I don't know if we would have to reach in it or not, but this standing order

[00:35:46] Speaker 03:
essentially that the district judge has essentially seems to say that upon meeting and conferring with the defendant and filing a new complaint, per se, the plaintiff has filed their, quote, best case as a result.

[00:36:02] Speaker 03:
But that's without any input from the district court on what it thinks of the defendants pointing out of alleged deficiencies.

[00:36:13] Speaker 03:
Is that really

[00:36:14] Speaker 03:
Is that a fair exercise of discretion to have a standing order that says, I'm going to treat your amendment complaint as your, quote, best case before I, the judge, have even said anything about what here Meadow argues is a deficiency?

[00:36:29] Speaker 01:
Well, Your Honor, in this case, the district court did more than that.

[00:36:32] Speaker 01:
It didn't just apply its standing order without thinking about it.

[00:36:35] Speaker 01:
And you'll see the analysis at the end of its opinion where it explains that, in fact, Ed Nexus did not ask to amend

[00:36:41] Speaker 01:
that it did comply with the standing order.

[00:36:44] Speaker 01:
And so it mentions the standing order, but it also says that the court finds plaintiff had stated its best case with respect to the standing order itself, whether it's fair.

[00:36:53] Speaker 01:
I think this case is very close, if not an easier case, than this court's decision in the Lyda v. CBS case, where I believe in that case the order said, you pick.

[00:37:06] Speaker 01:
You go one way or the other.

[00:37:07] Speaker 01:
You either amend your complaint or you defend against a motion to dismiss.

[00:37:12] Speaker 01:
And in that case, the party defended, lost, tried to amend again, the district court dismissed, and this court affirmed.

[00:37:21] Speaker 02:
And are there other district courts that have a standing order that forces that choice?

[00:37:30] Speaker 02:
Because it raises this question about a choice before you have any input from the judge.

[00:37:37] Speaker 01:
So this standing order is not the choice standing order.

[00:37:40] Speaker 01:
That was the standing order in LIDA that this court affirmed.

[00:37:44] Speaker 01:
I'm not aware of other courts with the standing order akin to what was in LIDA.

[00:37:48] Speaker 01:
In this case, the standing order requires notice to the plaintiff.

[00:37:52] Speaker 01:
The plaintiff got the notice.

[00:37:53] Speaker 01:
It requires the plaintiff to fix.

[00:37:55] Speaker 01:
And then it requires the motion to be limited to what the plaintiff was warned about.

[00:38:01] Speaker 01:
And that seems giving plaint even more than the plaintiff had in LIDA.

[00:38:07] Speaker 01:
Thank you.

[00:38:09] Speaker 00:
Thank you very much.

[00:38:10] Speaker 00:
Will we still have three minutes remaining?

[00:38:23] Speaker 04:
First, I would point out that the district court, in its ruling, noted that there were four elements, one D, one E, one F, one H, that were

[00:38:36] Speaker 04:
And before the court, the court did not consider each element, because in the FAC, like sufficient facts, as to any one element, the entire claim fails.

[00:38:49] Speaker 04:
And it went on to target one F. So it didn't even consider one E.

[00:38:54] Speaker 04:
And in our infringement analysis, we cover all of that.

[00:39:00] Speaker 04:
And the defendant argued that we made no mention in our brief about exhibit D, which we clearly did, at least on two occasions.

[00:39:13] Speaker 04:
So that is in the record.

[00:39:15] Speaker 04:
And I don't understand how the defendant can now raise an issue under 1E

[00:39:23] Speaker 04:
which wasn't even considered by the court as being involved.

[00:39:28] Speaker 04:
Because Facebook does indeed do all of those sequences and it is clear that what they're asking for and what they're getting is an email address that is preferred by a user so that that information can reach that user.

[00:39:49] Speaker 04:
It does meet the plausibility standard because it simply calls for enough facts

[00:40:01] Speaker 04:
that raise a reasonable expectation that discovery will reveal evidence, and it clearly will.

[00:40:07] Speaker 04:
And as I pointed out, the evidence on page 432 is a Facebook ad that asks for, how do you prefer we reach you?

[00:40:19] Speaker 04:
And the other issue before the court is whether the defendant here should have had more opportunity than it did to amend its case

[00:40:30] Speaker 04:
to meet the requirements.

[00:40:35] Speaker 04:
The standing order is not aligned with rule 15, which instructs the court to freely give leave when justice is required.

[00:40:42] Speaker 03:
You leveled no challenge to the standing order in the district court.

[00:40:46] Speaker 03:
Why should we excuse you for not having challenged it there and letting you challenge it here?

[00:40:52] Speaker 04:
Well, the standing order, in effect, precluded a challenge.

[00:41:01] Speaker 04:
no further amendment will be prevented.

[00:41:04] Speaker 03:
Couldn't you have just dropped a footnote somewhere to say, just to preserve our appellate rights, we object to the standing order as inconsistent with Rule 15, something like that?

[00:41:15] Speaker 04:
Well, that would have been a good thing to do, Your Honor.

[00:41:19] Speaker 04:
But from what the Court was ruling, we understood that it was fruitless to do that.

[00:41:25] Speaker 04:
And I think Rule 15 required that the Court

[00:41:33] Speaker 04:
indicate that it would dismiss, but allow us to amend the complaint further.

[00:41:39] Speaker 04:
We could easily point out, as I did on page 532, where the ads ask the user, what contact do you prefer we use?

[00:41:52] Speaker 04:
So it clearly meets 1F.

[00:41:54] Speaker 04:
There's no question about that.

[00:41:57] Speaker 04:
And there is even more evidence now

[00:42:00] Speaker 04:
that can be put into evidence that's available with regard to how Facebook uses its program, how it collects information, how it instructs and asks questions about which of your emails do you want us to use, and that information should be permitted either in an amended complaint or in further action before the district court.

[00:42:29] Speaker 04:
Thank you.

[00:42:30] Speaker 04:
Thank both sides, the case is submitted.