[00:00:00] Speaker 02:
The last case this morning is cloud of change versus light speed commerce and clover network.

[00:00:08] Speaker 02:
12-24-14-46-48 and 15-47.

[00:00:16] Speaker 02:
Mr. Selinger, when you're ready.

[00:00:29] Speaker 03:
Good morning, and may it please the court.

[00:00:33] Speaker 03:
Reversal of the Wojciech-based rejections is warranted for three reasons.

[00:00:40] Speaker 03:
First, the board engaged in an improper claim construction.

[00:00:44] Speaker 03:
Second, Cloud of Change preserved its right to challenge those improper constructions.

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Third, the board's incorrect constructions caused harmful error.

[00:00:56] Speaker 03:
Let me start with the real-time term.

[00:00:59] Speaker 03:
The board construed real-time for dependent claim in each patent.

[00:01:05] Speaker 03:
It did so after saying it had no reason to do any express claim construction.

[00:01:11] Speaker 03:
The board held that real-time aspect, quote, is accomplished by the store owner being able to implement the changes without the need for a skilled programmer, end quote.

[00:01:24] Speaker 03:
That common holding

[00:01:26] Speaker 03:
established the scope and meaning of at least one sentence.

[00:01:30] Speaker 03:
Pardon me?

[00:01:31] Speaker 04:
You believe that sentence is definitional?

[00:01:35] Speaker 04:
I mean, one argument, one way to read that sentence would be just that, you know, real time, which is undefined, is accomplished

[00:01:43] Speaker 04:
by allowing someone to make these changes in a very easy way, or not as a, but do you see what I'm saying?

[00:01:52] Speaker 04:
I'm not sure it's definitional.

[00:01:53] Speaker 03:
So I hear what you're saying, Your Honor, but I believe it is definitional.

[00:01:59] Speaker 03:
Both sides understood real time was, here we go, was,

[00:02:13] Speaker 03:
instantaneous or immediate.

[00:02:16] Speaker 03:
And let me find the sites.

[00:02:19] Speaker 04:
But that would be then if it's instantaneous meaning, but that would mean that the updates, the changes that are made to the point of sale terminal occur as they're made, right?

[00:02:36] Speaker 04:
Is that what you think the right interpretation is?

[00:02:39] Speaker 03:
So both sides,

[00:02:42] Speaker 03:
had taken that position like that, where they occurred without delay, instantaneous, without any built-in delay.

[00:02:52] Speaker 03:
And then we came, then we come to the district court's supplemental claim construction order, which Lightspeed, without objection, moved to put into evidence, and the board granted that, and that supplemental

[00:03:11] Speaker 03:
claim construction order defines the meaning of the real time limitation.

[00:03:24] Speaker 04:
What page are you looking at in the appendix for that?

[00:03:28] Speaker 03:
I'm looking at, and give me a second because I have it here.

[00:03:40] Speaker 03:
So it appears in the opinions at A24, A78, and A146.

[00:03:55] Speaker 03:
The definition of that.

[00:04:02] Speaker 04:
Where do you think the definition is on page A24?

[00:04:06] Speaker 03:
I'm sorry, that's where it was adopted.

[00:04:08] Speaker 03:
I'm looking for the... Yeah, I just want to know where you think the definition is.

[00:04:18] Speaker 03:
Sure.

[00:04:18] Speaker 03:
So the supplemental... I'm looking for the supplemental claim construction order itself is... And we're focusing on the interpretation of real time.

[00:04:32] Speaker 04:
I want to know where you think the PTAB interpreted real time.

[00:04:36] Speaker 03:
Okay.

[00:04:38] Speaker 03:
My answer there, Your Honor, goes back to the real-time aspect is accomplished by the store owner being able to implement the change without the need for a skilled programmer.

[00:04:52] Speaker 03:
And that is a who definition, not a when definition.

[00:05:00] Speaker 03:
And in defining real-time to turn on who is doing it is just

[00:05:08] Speaker 03:
It doesn't accord with the positions that either side took in the proceeding.

[00:05:19] Speaker 03:
It doesn't accord with how the district court resolved their very modest dispute, O2 microdispute on real time in the supplemental claim construction order.

[00:05:32] Speaker 03:
Real time is about making something happen

[00:05:39] Speaker 03:
without an intentional delay, which was Lightspeed's position, and without a successive step, which was the district court's position, and ours was very similar to the other two.

[00:06:02] Speaker 03:
But real time, I don't think plain and ordinary meaning of real time is

[00:06:09] Speaker 03:
anytime a person that doesn't need a technical expert to help them.

[00:06:16] Speaker 04:
What about the language at page A39 up at the top, you know, where it says what the petitioner contends about how WOSIC meets this limitation, right?

[00:06:35] Speaker 04:
At the top, it says petitioner contends that a person of ordinary scale would understand WOSIC discloses and suggests iterative testing of POS screens in real time using administrative tool.

[00:06:46] Speaker 04:
Because upon exiting the administrative tool, it prompts the administrator to save the changes, discard the changes.

[00:06:53] Speaker 04:
So a person of ordinary scale would understand that saving or discarding them discloses

[00:07:00] Speaker 04:
testing the screens iteratively and in real time.

[00:07:04] Speaker 04:
So that's really more about timing than about who.

[00:07:08] Speaker 04:
And then again, then later, the same thing on page A41 is discussed.

[00:07:15] Speaker 04:
And it says, middle paragraph, OSIC teaches the iterative real-time aspect of the claim because it is the administrator that iteratively makes the changes rather than waiting for a programmer

[00:07:28] Speaker 04:
But then it says the changes are simultaneously in use and done remotely subsequently.

[00:07:36] Speaker 04:
So it's going beyond just, oh, it's a paragraph above.

[00:07:41] Speaker 04:
I'm sorry.

[00:07:41] Speaker 04:
WOSEC explains the tool saves all the changes and makes all the desired changes.

[00:07:45] Speaker 04:
So they're, you know, it's saved or discarded as they're made.

[00:07:51] Speaker 03:
So those are several different arguments, Your Honor.

[00:07:55] Speaker 04:
So what I'm just trying to say, did the board, it's not clear to me and I apologize for citing the wrong part of the opinion, which is the part you're relying on actually and I get that.

[00:08:06] Speaker 04:
But it seems to me that maybe the board was also relying on the fact that you make a change and then you save it and you can see the change.

[00:08:14] Speaker 03:
Well, so what the board did was it relied on two parts of,

[00:08:24] Speaker 03:
paragraph of 115 of Wojciech.

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And the one paragraph was about the second step of updating.

[00:08:41] Speaker 03:
So in Wojciech, the central server downloads to the local server component of 82 and then

[00:08:53] Speaker 03:
either when a terminal, a client goes quiet, at that point they download.

[00:09:06] Speaker 03:
So it was a variable time under the first explanation.

[00:09:13] Speaker 03:
And then the second explanation, when they're talking about figure 12, that's figure 12 of Wojciech is about

[00:09:23] Speaker 03:
editing and repeated editing, what the board also said is when it points to the administrator, the administrative function, it said nothing gets done until the user exits the administrator, the administrative module.

[00:09:42] Speaker 03:
And at that time, the user is asked either whether to save or to discard.

[00:09:49] Speaker 03:
And if it's saved, it goes down to, again, the local server component for later entry.

[00:10:00] Speaker 03:
So, and that download, that second step download is variable in time depending on how busy the clients are.

[00:10:13] Speaker 03:
If they're constantly in use, then downloading doesn't happen.

[00:10:18] Speaker 03:
all day.

[00:10:19] Speaker 04:
This is like a substantial evidence factual question though and I was just trying to figure out and I understand your position.

[00:10:30] Speaker 04:
I was just trying to figure out did the board in fact misinterpret real-time as you're suggesting or did they understand it to mean you know that you make a change and then you see the change and so the language I was

[00:10:45] Speaker 04:
referring to, I was trying to determine whether the board had the right understanding of real-time, regardless of whether its analysis on whether a reference teaches real-time is correct or not.

[00:10:57] Speaker 04:
It did not.

[00:10:59] Speaker 03:
It did not.

[00:11:00] Speaker 03:
Whitechick does not teach that real-time functionality or process, and so the board was trying to fit

[00:11:13] Speaker 03:
What Wojciech did, which is sending it down from the central server to the local server component, and then when the client is idle, and this is only sending it on when the client is idle.

[00:11:36] Speaker 03:
That's different than what our patents disclose and claim.

[00:11:44] Speaker 03:
And again, the board's language about the goal being to be able to make the change without the need for skilled programmer, the board's discussion of the prosecution history about that doesn't fit into the mold of real time.

[00:12:11] Speaker 03:
We have dependent claims that separately treat that benefit.

[00:12:17] Speaker 03:
Dependent claims three and five of the 640 patent talk about the other benefit of being able to work without a skilled programmer, but this is just about real time.

[00:12:38] Speaker 02:
You're into your rebuttal time?

[00:12:40] Speaker 02:
I assume you want to save it?

[00:12:42] Speaker 03:
I do want to save it, Your Honor.

[00:12:45] Speaker 03:
And to the extent I have not touched on an issue, I want to rely on, I asked the court to rely on the briefs.

[00:12:56] Speaker 02:
Thank you.

[00:12:57] Speaker 02:
We'll do that.

[00:12:58] Speaker 02:
Mr. Gray.

[00:13:06] Speaker 00:
Good morning, Your Honors.

[00:13:07] Speaker 00:
May it please the Court, Joseph Gray on behalf of Epley's Lightspeed and Clover.

[00:13:12] Speaker 00:
The Board carefully considered every argument that Cloud of Change timely raised below and invalidated or held unpatentable every challenge claimed, most on multiple grounds.

[00:13:25] Speaker 00:
Cloud of Changes arguments below and on appeal relate primarily to this in-store server argument that you see in the briefs.

[00:13:32] Speaker 00:
The argument relates to what kinds of software is installed on Wojcik's point of sale terminal in the store.

[00:13:42] Speaker 00:
And to pick up where we just left off with real time, the claims that

[00:13:48] Speaker 00:
Cloud of Change challenge below as to the real-time limitations were three dependent claims, one from each patent.

[00:13:55] Speaker 00:
There was claim four from the 640 patent, claim three from the 012 patent, and claim 16 from the 793 patent.

[00:14:04] Speaker 00:
Those claims talk about testing iteratively in real-time or editing screens in real-time essentially.

[00:14:11] Speaker 00:
And the key point here about their real-time arguments is that those arguments don't relate at all to the claim language of the claims they challenged.

[00:14:20] Speaker 00:
The real-time editing and testing occurs at the web server level, where a manager, for example, can log in through a computer to access this builder software and create and edit screens and review those screens, make sure that they're satisfied with the end results.

[00:14:34] Speaker 00:
And once they are satisfied with those results, those changes get transmitted to the in-store terminals.

[00:14:41] Speaker 00:
So what happens, you know, on the inside of a POS terminal after it receives those changes really is of no moment to the claims that are challenged for real-time.

[00:14:53] Speaker 00:
In the briefs, Cloud of Change also argues about what we call the network limitations.

[00:14:59] Speaker 01:
Before we move on to that, on the real-time, they contend, I think, that WOCHIC does not allow for updating point-of-sale terminal unless it's idle.

[00:15:11] Speaker 01:
Is that how the board read or should have read Wojcik?

[00:15:17] Speaker 00:
No.

[00:15:17] Speaker 00:
So Wojcik does update in real time at least as fast as is disclosed in the 640 patent.

[00:15:24] Speaker 00:
What the board did was for the testing claims, the board said that the real time aspect is accomplished by eliminating the need for a skilled programmer.

[00:15:34] Speaker 00:
If we look at appendix 167,

[00:15:38] Speaker 00:
The board makes this statement.

[00:15:41] Speaker 00:
This is the 793 final written decision.

[00:15:44] Speaker 00:
The board says the real-time aspect is accomplished by the store owner being able to implement the changes without the need of a skilled programmer.

[00:15:52] Speaker 00:
And then it cites the 793 patent, but it corresponds to column three lines 25 through 37 of the 640 patent.

[00:16:03] Speaker 00:
And that's appendix 204.

[00:16:05] Speaker 00:
And the parenthetical there says, the store operator will be able to edit, change, and test the screens within minutes in real time rather than working with programmers offline.

[00:16:22] Speaker 00:
So the board was making that statement saying that the real time aspect is accomplished by eliminating the skilled programmer, and the board understood what

[00:16:30] Speaker 00:
what Cloud Upchange argued at the hearing, which is this editing and testing process is iterative and it can take place within minutes as opposed to taking place over the course of weeks as it used to take with the skilled programmer.

[00:16:42] Speaker 01:
Okay, I think I get all that, but in Wojciech, in the prior art reference, can't that only happen when the terminal is idle?

[00:16:54] Speaker 00:
No, so the changes in Wojcik are pushed from the web server automatically down to kiosk 16, which is our mapping of the POS terminal.

[00:17:04] Speaker 00:
So the POS terminal itself immediately receives, essentially immediately receives the updates.

[00:17:10] Speaker 00:
And then the screens in the self-order application are updated as soon as the customer is done using.

[00:17:16] Speaker 00:
So if the terminal is in use,

[00:17:18] Speaker 00:
like someone's placing an order, it waits until that customer is finished, and then it immediately updates those screens within that POS terminal.

[00:17:27] Speaker 00:
So the edited screens are received instantaneously, and then they're displayed as soon as the terminal becomes idle.

[00:17:38] Speaker 01:
And I would just- It may not be real time.

[00:17:41] Speaker 01:
Maybe I'm slowly ordering something when that download comes.

[00:17:49] Speaker 01:
Would that really be real time if it takes a couple minutes until it can get displayed?

[00:17:55] Speaker 00:
It would, Your Honor, because the 640 patent, all the specifications here, talk about certain different activities taking place in real time.

[00:18:03] Speaker 00:
So for example, the claims that were challenged below that have real time, it's testing or editing screens in real time.

[00:18:10] Speaker 00:
Wojciech teaches that.

[00:18:11] Speaker 00:
That's what the board found.

[00:18:12] Speaker 00:
Those activities are performed at the web server level.

[00:18:17] Speaker 00:
I'm not sure which claim cloud of change contends requires updating terminals in real time.

[00:18:22] Speaker 00:
We don't believe there is one.

[00:18:25] Speaker 00:
But Wojcik does as soon as practical.

[00:18:29] Speaker 00:
It does send those updates immediately, then updates the screens as soon as the terminal goes idle.

[00:18:34] Speaker 00:
And I would just note that that's precisely the disclosure in the 640 patent about how terminals are updated.

[00:18:40] Speaker 00:
It's neither

[00:18:43] Speaker 00:
The patent nor Wojcik will basically override a customer's use of the terminal while they're placing an order.

[00:18:50] Speaker 00:
But the fastest either patent discloses updating the terminal screens is after a customer's finished, when the terminal is idle.

[00:19:01] Speaker 00:
So the disclosures between the two patents are identical.

[00:19:04] Speaker 00:
And that only becomes relevant if there is a claim limitation that requires the terminals be updated.

[00:19:11] Speaker 00:
in real time or instantaneously.

[00:19:13] Speaker 00:
Two other points on that, claim 16, the board's analysis claim 16 of the 793 pad.

[00:19:21] Speaker 04:
Absolutely.

[00:19:22] Speaker 04:
So I take it then that your point is that for the real time limitation, just focusing for example on the representative patent claims, looking at claim four, but real time with respect to element D and claim one was not challenged?

[00:19:37] Speaker 00:
That's correct.

[00:19:38] Speaker 00:
It was not challenged.

[00:19:39] Speaker 00:
The board did state that it was adopting all of the undisputed contentions from the petition.

[00:19:45] Speaker 00:
That was at Appendix 24, for example, in the 640 patent.

[00:19:49] Speaker 04:
The board cited... So it wasn't challenged below and it's not challenged on... Well, it might be challenged on appeal, but it wasn't challenged below, is your view.

[00:19:57] Speaker 00:
But for the independent claims, that's correct.

[00:19:59] Speaker 00:
There's a real-time element of it.

[00:20:01] Speaker 04:
It says build or edits at POS terminals in real time.

[00:20:04] Speaker 00:
That was not challenged below.

[00:20:06] Speaker 00:
That's correct.

[00:20:06] Speaker 00:
The board cited the petition pages 23 through 26 and found that all of those contentions were undisputed.

[00:20:13] Speaker 00:
And in those contentions, we explain that Wojcik allows you to make the edits iteratively in real time.

[00:20:20] Speaker 00:
I mean, you're kind of flowing through this program where you can change the menus or change the items.

[00:20:27] Speaker 00:
And then when you're finished with all your edits and you're satisfied with the results, you hit save.

[00:20:33] Speaker 00:
And then that server automatically pushes all of those edits down to kiosk 16 in the store, which is the POS terminal in Wojciech.

[00:20:41] Speaker 00:
None of that was disputed.

[00:20:47] Speaker 00:
And POS terminal, just briefly, that was another issue that was not disputed below.

[00:20:53] Speaker 00:
The petition mapped the claimed one or more POS terminals to Kiosk 16.

[00:20:59] Speaker 00:
And within that, and the board found that was a POS terminal, Kiosk 16, and that was undisputed.

[00:21:07] Speaker 00:
And Cloud of Change and its expert, in fact, admitted that the Kiosk 16 slash 82 is a POS terminal.

[00:21:18] Speaker 00:
And in the briefing, there's an argument about the board making up a term, kiosk 16-82, and the board explains that at 19 through 22 of the appendix and 25 to 30, two different figures in Wojcik identify the same item, the same device as those two numbers.

[00:21:41] Speaker 00:
Figure one uses 16 and figure three uses 82.

[00:21:45] Speaker 00:
So, 82 shows the software that's installed on that POS terminal.

[00:21:50] Speaker 00:
In the end, Wojcik discloses for all the elements of these claims and challenge below or on appeal, Wojcik has essentially the same disclosure as this patent.

[00:22:03] Speaker 00:
There's POS builder software that eliminates the need for a skilled programmer.

[00:22:07] Speaker 00:
It's running on a web server.

[00:22:09] Speaker 00:
You can iterate changes and review those changes in real time and then send those changes to the terminals instantly.

[00:22:19] Speaker 00:
And I would just note that on, Judge Stark, to your question about the updating of the terminals, I would just direct you to column three, lines nine through 23 of the 640 patent.

[00:22:36] Speaker 00:
That's appendix 204.

[00:22:38] Speaker 00:
where it says that all changes have to be submitted for final posting at a scheduled time.

[00:22:44] Speaker 00:
For example, the changes can take place after the present transactions are completed.

[00:22:49] Speaker 00:
Alternatively, they can take place at the end of the business day, during the night, or the next day.

[00:22:59] Speaker 00:
And the 640 patent says, typically screen changes will take place at the next application start at the beginning of a business day.

[00:23:07] Speaker 00:
So the 640 patent doesn't disclose, you know, overtaking the terminal to display the updated screens.

[00:23:15] Speaker 00:
And Wojcik.

[00:23:16] Speaker 04:
But there's an undisputed definition of real time, right?

[00:23:20] Speaker 00:
I apologize?

[00:23:21] Speaker 04:
Isn't there an undisputed definition of real time based on the district court's interpretation?

[00:23:26] Speaker 00:
No, Your Honor.

[00:23:27] Speaker 00:
In this record, there was no dispute about the meaning of real time during the IPR.

[00:23:32] Speaker 04:
I understand.

[00:23:35] Speaker 04:
the parties adopt the district court's interpretation of real-time for purposes of the IPR?

[00:23:42] Speaker 00:
No, Your Honor.

[00:23:42] Speaker 04:
Okay.

[00:23:43] Speaker 00:
No.

[00:23:43] Speaker 00:
So that... I said it didn't have to be... The district court proceedings, that claim construction came after briefing was complete in the IPR.

[00:23:51] Speaker 00:
And Lightspeed's argument in the district court was based on disclaimer during the IPR about real-time.

[00:23:57] Speaker 00:
So there was no dispute over plain and order meaning it was a disclaimer argument in the district court.

[00:24:03] Speaker 00:
So Lightspeed submitted the district court's supplemental claim construction because it did address an issue that had been briefed in the IPR, which was whether the preambles are limiting.

[00:24:13] Speaker 00:
And then at the hearing, Cloud of Change mentioned in passing that if the board adopts the district court's constructions, you know, it made an argument.

[00:24:23] Speaker 00:
But it never, Cloud of Change never asked for additional briefing, admitted that the real-time issue had not been briefed in the IPR.

[00:24:29] Speaker 00:
And in fact, at the at the hearing cloud of change said that what real time means is that you're doing things within minutes as opposed to overnight or the next day.

[00:24:39] Speaker 00:
So within minutes is I think what we can all agree in general is what real time means in the context of testing and editing in real time.

[00:24:49] Speaker 00:
The patent uses that term.

[00:24:50] Speaker 00:
It says it can be edited and tested within minutes in real time.

[00:24:53] Speaker 00:
Cloud of Change took that position, I believe the Board, that's how the Board understood the term when making the statements it did as referenced it, Appendix 167.

[00:25:03] Speaker 02:
Thank you, Counsel.

[00:25:08] Speaker 00:
There are no further questions.

[00:25:09] Speaker 00:
Thank you, Your Honor.

[00:25:10] Speaker 00:
We request that the final written decisions be affirmed.

[00:25:13] Speaker 02:
Mr. Salinger has a little time.

[00:25:17] Speaker 03:
Thank you.

[00:25:19] Speaker 03:
First, Jed Stark.

[00:25:22] Speaker 03:
The answer to your question about white check is on page 1317, paragraph 115, where it says the server updates each client connected to it with the corresponding save changes when each client is idle.

[00:25:50] Speaker 03:
When Judge Stoll asked the question, and I didn't have the precise sites, the cloud of change took the position about the plain and ordinary meaning of real time at appendix 468-69, a temporal limitation where a response immediately follows an action rather than occurring in stages over time.

[00:26:17] Speaker 03:
Lightspeed argued

[00:26:20] Speaker 03:
It meant instantly and without intentional delay.

[00:26:23] Speaker 03:
That's A2616.

[00:26:27] Speaker 03:
And the district court on that same page said, plain and ordinary meaning where a system with steps that occurs sequentially over time is not in real time.

[00:26:38] Speaker 03:
As far as the independent claims are concerned, Lightspeed opened the door.

[00:26:42] Speaker 03:
We did not make an argument while the 640 briefing was on.

[00:26:47] Speaker 03:
Then Lightspeed wanted to file the supplemental order.

[00:26:50] Speaker 03:
We then filed a, in our surreply at 4468, we took the position that Wojciech didn't meet claim one either for the real-time limitation.

[00:27:10] Speaker 03:
And we then had argument as council concedes where,

[00:27:16] Speaker 03:
Our lawyer referred to that opinion for all of them.

[00:27:22] Speaker 03:
And by the way, his in minutes question was actually about a longer phrase, which was iteratively and in real time, which required interaction between a human being and the computer.

[00:27:38] Speaker 03:
It wasn't about the computer only.

[00:27:41] Speaker 03:
And then finally, I just want to correct, Wojciech never used the label Kiosk 1682.

[00:27:49] Speaker 03:
Our expert never admitted Kiosk 1682 as a POS terminal.

[00:27:58] Speaker 03:
When he was questioned about Wojciech 92, he agreed that Kiosk 16 runs a self-order application, but that didn't turn Kiosk 16

[00:28:10] Speaker 03:
into this combination server client 16 or kiosk server 82.

[00:28:16] Speaker 03:
My red light is on, so thank you very much.

[00:28:19] Speaker 02:
Thank you to both counsel.

[00:28:21] Speaker 02:
The case is submitted.

[00:28:22] Speaker 03:
That concludes today's argument.