[00:00:00] Speaker 03:
Our next case for argument is 24-1432, Google versus NoBots.

[00:00:08] Speaker 03:
Mr. Speed, please proceed.

[00:00:10] Speaker 06:
Thank you, Your Honor.

[00:00:11] Speaker 06:
Good morning.

[00:00:11] Speaker 06:
Nathan Speed on behalf of the appellate, Google.

[00:00:14] Speaker 06:
The loan issue in this case is an issue of claim construction, and more specifically, an issue of lexicography.

[00:00:19] Speaker 06:
The disputed claim phrase, it's a three-word phrase, acquiring interest data.

[00:00:24] Speaker 06:
There's no dispute that the term interest data is a coined term, that the patent be explicitly defined in the specification to include active data or passive data or both.

[00:00:34] Speaker 06:
And acquiring has its plain and ordinary meaning, which is simply retrieving.

[00:00:38] Speaker 06:
So the straightforward interpretation of this three-word phrase is retrieving passive data, active data, or both.

[00:00:45] Speaker 06:
That's straightforward.

[00:00:46] Speaker 06:
It's consistent with the specification.

[00:00:48] Speaker 06:
And under that construction, there's no dispute that Kit's reference anticipates independent claim 19.

[00:00:53] Speaker 06:
The board reached a different determination by narrowly construing the claim based on lexicography, but the board's application of lexicography was too liberal.

[00:01:03] Speaker 06:
They went into the specification and found that there was another term defined, acquired data.

[00:01:08] Speaker 06:
And they took that definition of acquired data and said that that definition, which limits data to active data, applies to the separate claim phrase acquiring interest data.

[00:01:17] Speaker 06:
But respectfully, acquired data is not in the claim phrase acquiring interest data.

[00:01:22] Speaker 06:
The word acquiring is there, and then you have to define it.

[00:01:24] Speaker 03:
What if it had said acquired interest data?

[00:01:28] Speaker 06:
I still think that we would have a problem with lexicography, because as far as I'm aware, the court has never taken a definition of one term, acquired data.

[00:01:37] Speaker 06:
They use that to change the definition of a different term that is explicitly in the claim, interest data.

[00:01:43] Speaker 06:
Interest data is clearly in the claim.

[00:01:45] Speaker 06:
And its definition, part of it is active or passive data.

[00:01:49] Speaker 06:
And so if it was changed to acquired data, I think we'd still have an issue.

[00:01:53] Speaker 06:
If it was retrieving acquired data.

[00:01:55] Speaker 03:
Acquired data is only active data.

[00:01:57] Speaker 03:
Interest data could be active or passive, but it has other components.

[00:02:01] Speaker 03:
It's not just active or passive.

[00:02:03] Speaker 03:
It has other parts to its meaning.

[00:02:05] Speaker 03:
So why couldn't they just stack it and say this is acquired interest data?

[00:02:09] Speaker 03:
Therefore, it is active interest data.

[00:02:15] Speaker 06:
So if they could have done that, I think there's a couple leaps of logic that we need to take to get there.

[00:02:22] Speaker 06:
And kind of taking a step back, we're in the world of lexicography, which this court is clear.

[00:02:26] Speaker 06:
It's an enacting standard.

[00:02:28] Speaker 06:
It needs to be precise and deliberate redefinition of a term, especially a term that has a plain meaning like acquiring.

[00:02:35] Speaker 00:
But taking- Do you think that the answer to the question might differ according to whether

[00:02:43] Speaker 00:
In the three word phrase acquired interest data, acquired was being used as a verb or instead as a double adjective three word label for essentially as a noun with two modifiers.

[00:03:02] Speaker 06:
I think that raises an interesting question because the term is acquired data.

[00:03:06] Speaker 06:
Acquired is being used as an adjective in that defined term.

[00:03:10] Speaker 06:
And so there's no lexicography in the specification saying that we're going to change the

[00:03:16] Speaker 06:
the verb acquire to now mean that everything that's referenced as having been acquired or acquiring is active data.

[00:03:23] Speaker 03:
Well, what do you think they mean in the specification?

[00:03:25] Speaker 03:
Because I'll be honest, I've never seen this before, and I don't know, I've probably read at least 10,000 patents.

[00:03:31] Speaker 03:
What in the world do they mean by its equivalence in verb forms?

[00:03:35] Speaker 06:
I'm glad that you also had confusion there.

[00:03:38] Speaker 06:
I've read not tens of thousands of times, but I've read a handful.

[00:03:41] Speaker 06:
I've never seen that term used.

[00:03:42] Speaker 06:
I've certainly not seen it used in a definitional passage.

[00:03:45] Speaker 03:
But it's kind of weird because acquired data, they want this to encompass its verb forms.

[00:03:51] Speaker 03:
Well, the words acquired data, like you suggested, seem to have an adjective and a noun.

[00:03:57] Speaker 03:
So what are the verb forms mean?

[00:04:01] Speaker 03:
What did the pat d mean by that?

[00:04:03] Speaker 06:
I don't know.

[00:04:05] Speaker 06:
I think what the board interpreted that to mean would be that you could have acquiring and acquire to both verb forms of the verb to acquire, and that perhaps that broadened it in the board's view so that the term acquiring was redefined.

[00:04:20] Speaker 06:
But respectfully, that's the error that the board committed, which is if the patentee wanted to redefine the everyday ordinary word acquired,

[00:04:28] Speaker 06:
It's limited to active data.

[00:04:29] Speaker 06:
They should have said acquire and it's very formed as used here and is limited to the retrieval of active data.

[00:04:35] Speaker 06:
They didn't do that.

[00:04:36] Speaker 06:
They used this weird phrase of acquired data, its equivalence in verb forms, which you'll see in the specification.

[00:04:42] Speaker 06:
It seems to be like a boilerplate language that they used because they used it with multiple definitions, including words like interest data, which both parties agreed there's no verb form of the word interest.

[00:04:52] Speaker 06:
And so it's really confusing what they put it in there.

[00:04:56] Speaker 00:
And so for the board to take... There is a verb form, just no applicable one in this context.

[00:05:03] Speaker 06:
Sorry.

[00:05:03] Speaker 06:
Yeah.

[00:05:04] Speaker 06:
Again, lexicography is acting standard.

[00:05:07] Speaker 06:
It's a heightened burden because the presumption is that the plain meaning should apply.

[00:05:12] Speaker 01:
But redefinition can be done by implication, right?

[00:05:16] Speaker 06:
It can be, Your Honor.

[00:05:17] Speaker 01:
And that has to be clear, though.

[00:05:19] Speaker 06:
Exactly.

[00:05:19] Speaker 06:
The explicit definition and implicit one both need to be concise and deliberate so that the public knows what the redefinition is.

[00:05:26] Speaker 01:
So how clear does it actually have to be if it's redefined by implication?

[00:05:31] Speaker 06:
It has to be clearer than what we have here, Your Honor.

[00:05:35] Speaker 06:
Because I think one critical thing that we haven't touched yet is the specification.

[00:05:40] Speaker 06:
There's a series of embodiments disclosure, which really should have been dispositive below, and the board didn't even address it, even though we raised it in our briefing.

[00:05:47] Speaker 06:
The series of embodiments disclosure is at column 3, lines 47 to 53.

[00:05:51] Speaker 06:
And this is where they're describing the invention at a high level.

[00:05:55] Speaker 06:
And they talk about two series of embodiments.

[00:05:57] Speaker 06:
In the first series, you have a comparison between interest data acquired prior to delivery of issue data.

[00:06:03] Speaker 06:
And then you have a second series of embodiments where you have monitored data, by definition acquired after delivery of issue data.

[00:06:09] Speaker 06:
So in this, you have the word acquired being used.

[00:06:11] Speaker 03:
Claim 19 only pertains to the first set of embodiments.

[00:06:15] Speaker 03:
Claim 19 only pertains to the first set of embodiments.

[00:06:18] Speaker 06:
Correct.

[00:06:18] Speaker 06:
I would agree it pertains to the first one.

[00:06:20] Speaker 06:
It uses the term acquired to describe when you're

[00:06:24] Speaker 06:
obtaining the data, and that's interest data.

[00:06:26] Speaker 06:
But the key part is the last sentence that says, in both series of environments, acquired and or available data may be used for comparison with suitable model data.

[00:06:36] Speaker 06:
The and or is key, because the or means that you can just use available data, and available data, again, is another defined term, and it's passive data.

[00:06:44] Speaker 06:
So that's saying that the data, the interest data that has been described as acquired

[00:06:50] Speaker 06:
can just be available data.

[00:06:52] Speaker 06:
And if it can be just available data, then it can be just passive data.

[00:06:55] Speaker 06:
And that's entirely consistent with giving acquiring its plain and orderly meaning in the claim language.

[00:07:03] Speaker 06:
And if we look just at claim 19, and we were getting there earlier, which is if we limit claim 19 to obtaining active data, then we effectively have rewritten the claim to remove interest data.

[00:07:17] Speaker 06:
And that's contrary to basic principles of claim construction.

[00:07:21] Speaker 06:
Interest data has three parts of its definition.

[00:07:23] Speaker 06:
It has to be its active or passive data.

[00:07:25] Speaker 06:
It can be acquired or obtained

[00:07:28] Speaker 06:
before or after issued data, it has to correlate to data that's in the model data.

[00:07:33] Speaker 06:
The latter two parts of that, when it's acquired and that it correlates to the model data, that's already explicitly accounted for in Claim 19, which requires that it be obtained prior to delivery of issued data and that it be subsequently compared to the model data.

[00:07:48] Speaker 06:
The only thing not explicitly covered

[00:07:50] Speaker 06:
in claim 19 is that it's passive or reactive data.

[00:07:53] Speaker 06:
So that's what interest data is adding to this claim.

[00:07:56] Speaker 06:
It's an independent claim.

[00:07:57] Speaker 06:
Patentees, as most patentees do, they use the broad term interest data so that they could start with their independent claim and presumably try to narrow it down with the dependent claims.

[00:08:05] Speaker 06:
And speaking of dependent claims, dependent claim 20.

[00:08:08] Speaker 06:
says wherein the interest data consists of available data.

[00:08:13] Speaker 06:
Not comprises available data, but consists, means it made up of available data, which again is passive data.

[00:08:19] Speaker 06:
So claim 20 is describing an embodiment in which the interest data is just passive data.

[00:08:24] Speaker 06:
That's what our prior art reference describes as well.

[00:08:28] Speaker 06:
It should have been dispositive under ordinary claim differentiation principles because if 20 depends from 19, then 19 has to be broad enough to encompass a scenario where you just acquire passive data.

[00:08:40] Speaker 06:
The board sidestepped this because claim 20 is poorly written and it says it depends from claim one.

[00:08:47] Speaker 06:
Respectfully, I don't think there's a reasonable way you can read 20s actually depending from claim one because there is no antecedent basis for interest data in claim one.

[00:08:55] Speaker 06:
It's not in claim one, it's not in claims two through 18.

[00:08:58] Speaker 06:
Where does interest data come in?

[00:08:59] Speaker 06:
It comes in in the independent claim 19, the immediately preceding claim to 20.

[00:09:04] Speaker 06:
So the normal way the patents are drafted is you have the independent claim and then the dependent claims that fall right after that.

[00:09:11] Speaker 06:
Here you have interest data, it only finds its basis in claim 19.

[00:09:15] Speaker 06:
But your honors don't need to resolve that issue because after spending roughly 11 pages of their brief debating this issue, NoBots concedes at page 47 of the brief that this is subject to reasonable debate.

[00:09:26] Speaker 06:
They could be right.

[00:09:27] Speaker 06:
We could be right.

[00:09:27] Speaker 06:
There's a reasonable debate about what 20 depends from.

[00:09:30] Speaker 06:
But if it's reasonable to read 20 as depending on 19,

[00:09:33] Speaker 06:
which would mean that it's reasonable to read 19 as an accompanying scenario which you acquire simply passive data, then that heightened standard of lexicography cannot have been met in this case.

[00:09:45] Speaker 06:
Lexicography is supposed to foreclose any reasonable dispute as to whether a term has been redefined or not.

[00:09:50] Speaker 06:
That's simply not met here.

[00:09:52] Speaker 06:
And just one final point on the infringement contentions, Your Honor.

[00:09:55] Speaker 06:
When they sued Google, presumably after having done their diligence and getting a Rule 11 basis to do so, they provided preliminary infringement contentions, and it's available at Appendix 1915.

[00:10:05] Speaker 06:
And if you look at those contentions, you'll see that they said Google allegedly infringed because, quote, Google obtains interest data in the form of browser cookies, the user agent of the browser, and one or more IP addresses.

[00:10:18] Speaker 06:
That's all passive data.

[00:10:19] Speaker 06:
They pointed to passive data when they alleged that my client infringed.

[00:10:24] Speaker 06:
thing to note is that they paraphrased the claim, which you typically do when you're doing the pros of your infringement contentions, and they switched acquiring and they used obtains.

[00:10:33] Speaker 06:
And why did they do that?

[00:10:33] Speaker 06:
Because they're synonyms.

[00:10:34] Speaker 06:
They have the same plain and ordinary meaning, which is just retrieving.

[00:10:37] Speaker 06:
Nowhere in their contention do they suggest that the definition of acquired data somehow impacts the scope of this claim.

[00:10:44] Speaker 06:
Indeed, if you look at Appendix 1914, the immediately preceding page, the only definition that they point to is interest data.

[00:10:51] Speaker 06:
And they do it to emphasize the fact that interest data is active or passive data.

[00:10:55] Speaker 06:
They did that because they were then going to point to passive data.

[00:10:59] Speaker 06:
Respectfully, if the patent owner themselves, when reading this claim, asserting it against Google, they didn't see this lexicography issue until when they initially sued us.

[00:11:08] Speaker 06:
They didn't discover it until after they were faced with an anticipatory disclosure from the kids.

[00:11:13] Speaker 06:
The heightened standard of lexicography has not been met.

[00:11:16] Speaker 06:
This is supposed to be something that the public can read right away and know that the word acquiring has been narrowly defined.

[00:11:21] Speaker 06:
I submit it hasn't occurred here.

[00:11:23] Speaker 06:
The board committed error with its claim construction.

[00:11:25] Speaker 06:
There's no dispute that under the proper construction, where acquiring is giving its plain meaning, that Kitts anticipates.

[00:11:31] Speaker 06:
And so therefore, the board's decision should be reversed.

[00:11:34] Speaker 03:
Would you like to save the remainder of your time for rebuttal?

[00:11:35] Speaker 06:
Yes, please.

[00:11:36] Speaker 06:
Thank you.

[00:11:36] Speaker 03:
And I suggest that you take a couple of breaths, because I think in the first 11 minutes, you didn't take any.

[00:11:41] Speaker 06:
Sorry about that.

[00:11:42] Speaker 03:
You're on.

[00:11:55] Speaker 04:
May it please the court?

[00:11:58] Speaker 04:
Your honor, the issue before the court is whether the board erred in construing acquiring interest data to require the retrieval of at least some active data.

[00:12:07] Speaker 04:
We think there are two critical facts that prove that the board was correct.

[00:12:11] Speaker 04:
And then I'll get to Google's specific arguments.

[00:12:13] Speaker 04:
First, Google cannot dispute that the inventor acted as its own lexicographer by defining the act of acquiring data to require some active data.

[00:12:22] Speaker 04:
And I'm going to go to the portion of the specification that's column three,

[00:12:25] Speaker 04:
lines 24 to 32.

[00:12:26] Speaker 04:
I'm going to read the important part for purposes of this argument.

[00:12:30] Speaker 04:
The term acquired data, its equivalence, and verb forms.

[00:12:35] Speaker 04:
The board correctly found that acquiring data is a verb form of acquired data.

[00:12:40] Speaker 04:
We think that's just common sense.

[00:12:43] Speaker 04:
But even if that's not clear on the face of the definition,

[00:12:48] Speaker 04:
The patent goes on to provide quite a bit of detail about how data is acquired.

[00:12:52] Speaker 04:
And this is a part of the specification that Google spends almost no time discussing because it's so equivocal and it explains it so clearly.

[00:12:59] Speaker 04:
That's column 3, line 65, to column 4, line 17.

[00:13:03] Speaker 04:
It's a fairly lengthy passage, but I'm just going to read a couple of tidbits.

[00:13:07] Speaker 04:
And it says, quote unquote, acquired data requires some form of information capture means.

[00:13:13] Speaker 04:
So why does it require some form of information capture means?

[00:13:16] Speaker 04:
Because active data is a particular type of data, such as keystrokes or mouse cursor movements.

[00:13:22] Speaker 03:
Another part of the same passage says- Council, I don't have a concern that acquired data is active data.

[00:13:31] Speaker 03:
I think that is clearly defined.

[00:13:33] Speaker 03:
My concern

[00:13:35] Speaker 03:
is that this isn't a product claim, this is a method claim.

[00:13:39] Speaker 03:
And so as a method claim, you expect in each step to have a verb because a method is a series of steps.

[00:13:46] Speaker 03:
And I'm having a little trouble not reading the word acquiring as the verb in that sentence.

[00:13:54] Speaker 03:
And if it's the verb,

[00:13:55] Speaker 03:
then it's not the predicate adjective before the word data.

[00:14:00] Speaker 03:
It's the verb.

[00:14:01] Speaker 03:
And it's being used as a verb telling you what to do and when it has to occur.

[00:14:06] Speaker 03:
And if that's the case, it doesn't fall within the patentee's lexicography.

[00:14:10] Speaker 03:
So quite frankly, that's how I see this case.

[00:14:13] Speaker 03:
And I think you would be most useful if you would tell me what's wrong with that.

[00:14:18] Speaker 04:
Sure, Your Honor.

[00:14:18] Speaker 04:
I believe that the definition of acquired data and its equivalent verb forms means that when you're acquiring data,

[00:14:24] Speaker 04:
It requires the retrieval of active data.

[00:14:26] Speaker 04:
Interest data is a type of data.

[00:14:29] Speaker 04:
It's a type of data that the patent actually says can include active data.

[00:14:32] Speaker 04:
And I think, to just Toronto's point earlier, this distinction between verb and noun, the verb acquiring, right, acquiring data in this claim, the data is interest data.

[00:14:42] Speaker 04:
And the patent says interest data can include active data.

[00:14:45] Speaker 04:
So that, in our view, makes perfectly logical sense.

[00:14:49] Speaker 04:
And I will point out that the specification uses the word

[00:14:51] Speaker 04:
Receiving data, collecting data, obtaining data.

[00:14:54] Speaker 04:
It actually uses the word obtaining and acquired in the same sentence.

[00:14:58] Speaker 04:
So what does that tell us?

[00:14:59] Speaker 04:
That tells us that the patentee knew how to use a broader term when the patentee wanted to refer to retrieving any type of data.

[00:15:06] Speaker 03:
You know, you also talk about, he also uses the word acquired as a verb in other places.

[00:15:10] Speaker 03:
Column three, line 40 or 50 would be an example.

[00:15:14] Speaker 03:
That's using the word acquired as a verb.

[00:15:18] Speaker 03:
It's absolutely not referring only to active data.

[00:15:22] Speaker 03:
You used it interchangeably, sometimes as a verb without meaning it was limited to active data, and sometimes as an adjective on data saying it should be limited to active data.

[00:15:34] Speaker 04:
Well, to be clear, we don't view it as meaning it's limited to active data.

[00:15:37] Speaker 04:
We just view it as meaning there has to be some active data in whatever's received, right?

[00:15:43] Speaker 04:
So monitor data that's been acquired has to have at least some active data in it.

[00:15:47] Speaker 04:
It could also have passive data.

[00:15:50] Speaker 04:
But the requirement of acquiring acquired, the way that's defined in the specification, it's a particular way of obtaining the data using information capturing means.

[00:16:00] Speaker 04:
I think if that makes sense.

[00:16:02] Speaker 03:
If it makes sense, I just don't buy it.

[00:16:03] Speaker 03:
I understand your argument.

[00:16:05] Speaker 00:
Understood, Your Honor.

[00:16:07] Speaker 00:
Let me just bring in something that I don't think it's been cited in the briefs.

[00:16:12] Speaker 00:
But even putting aside

[00:16:15] Speaker 00:
the very high standard for lexicography in normal legal phrase interpretation.

[00:16:27] Speaker 00:
Sometimes, as the Supreme Court has said, a two-word phrase can have quite different meaning from what

[00:16:36] Speaker 00:
its individual word components used separately can mean.

[00:16:40] Speaker 00:
I'm thinking of the 2011 Supreme Court case called FCC against AT&T, in which the question was whether the phrase personal privacy should be interpreted by breaking it into pieces and saying, well, personal is an adjectival form of person.

[00:16:59] Speaker 00:
A corporation is a person, so a corporation can have personal privacy.

[00:17:02] Speaker 00:
And the Supreme Court said, no, that's crazy.

[00:17:06] Speaker 00:
Why isn't this like that?

[00:17:10] Speaker 00:
The two-word phrase acquired data, which has no particularly obvious intuitive meaning, was adopted as a two-word noun to label a particular thing given a definition.

[00:17:29] Speaker 00:
One wouldn't, I think, just

[00:17:32] Speaker 00:
naturally think that that means there has been a definition of the general word acquire when used as a verb outside that little two-word coined phrase.

[00:17:47] Speaker 04:
Yes, Your Honor.

[00:17:48] Speaker 04:
I think it comes down to what equivalence in verb form means.

[00:17:51] Speaker 00:
Right.

[00:17:51] Speaker 00:
So that's the one thing you have to try to rely on.

[00:17:57] Speaker 00:
To me, the problem with that is that it reads, and I would think a skilled artisan reading that phrase as it appears in here, has dropped in in a bunch of places almost like a stock phrase, though

[00:18:15] Speaker 00:
I'm not sure we've seen it before, including places where it's obviously inappropriate.

[00:18:20] Speaker 00:
So you wouldn't think that any serious redefinitional work is being done by what somebody wrote, by what somebody did to write in that phrase on occasion, including in places where it's quite inappropriate.

[00:18:40] Speaker 04:
Your Honor, first I'm going to address the last point you raised about the

[00:18:44] Speaker 04:
equivalence and verb forms language.

[00:18:46] Speaker 04:
I mean, even if it's inappropriate in other places in the specification, we think it makes perfect sense within this particular definition.

[00:18:53] Speaker 04:
And in fact, the specification uses the phrase acquiring data to refer to data that is unequivocally, unquestionably acquired data in the context that fits within that definition.

[00:19:05] Speaker 04:
So we think, and that's a line, column three, line 65 to column four, line 17,

[00:19:11] Speaker 04:
where it says such monitoring and retaining means for acquiring data.

[00:19:15] Speaker 04:
So it is using the verb form acquiring data to refer to acquired data exactly as that term is defined in the spec.

[00:19:22] Speaker 04:
And that's also consistent with the verb form in equivalence language.

[00:19:26] Speaker 04:
So we think, and I think part of the issue is Google myopically focuses on one part of the spec.

[00:19:31] Speaker 04:
When you read the specification, I believe

[00:19:34] Speaker 04:
Acquired is used, some form of acquired is used 12 times in the specification.

[00:19:37] Speaker 04:
We don't think there's a single time where it's used inconsistent with the definition of acquired data.

[00:19:42] Speaker 04:
And there may only be, this may be the only instance where acquiring data is referred to.

[00:19:47] Speaker 04:
But even in that instance, it's used consistent with the definition in column three, lines 24 to 32.

[00:19:52] Speaker 00:
Isn't it, don't you think it's,

[00:19:56] Speaker 00:
Can't we think it odd that all the work in this patent is done in column three and a little bit at the top of four.

[00:20:07] Speaker 00:
But around, I guess this is column three lines,

[00:20:11] Speaker 00:
you know, 49 to 50, it says interest data acquired prior to delivery.

[00:20:16] Speaker 00:
It has just defined interest data to include both passive and active.

[00:20:23] Speaker 00:
And you're saying, no, no, no, it's just sort of took that back.

[00:20:27] Speaker 04:
Well, it can include active and or passive data, right?

[00:20:30] Speaker 00:
Yes.

[00:20:31] Speaker 00:
So when you've just defined the phrase interest data that includes passive and active, can include passive and active, either or both, either, and then you immediately thereafter use

[00:20:48] Speaker 00:
this general word in a verb form to talk about acquiring interest data, you're saying, well, that must mean only acquiring half of what we've just defined.

[00:20:59] Speaker 00:
That's odd.

[00:21:01] Speaker 04:
I agree with you that that might be odd, Your Honor.

[00:21:03] Speaker 00:
The one thing I think you have going for you is this stock phrase that's been dropped in.

[00:21:11] Speaker 00:
And I guess I just have a hard time believing that that should be given much effect.

[00:21:18] Speaker 04:
Yes, Your Honor.

[00:21:18] Speaker 04:
And I guess our position would be that at least we're not aware of precedent where the court has just ignored a phrase in the specification, even if that phrase is used other places that might not make sense.

[00:21:29] Speaker 04:
We think it makes perfect sense in the context of that definition.

[00:21:32] Speaker 00:
Right.

[00:21:32] Speaker 00:
It wouldn't be ignoring it.

[00:21:33] Speaker 00:
It would be saying, when a phrase has been put in a bunch of places, you can't give it the kind of quite radical significance that you're giving it to override

[00:21:47] Speaker 00:
the ordinary meaning of the word that's actually in the claim acquiring, which is obviously broad, to then build in a limitation on that by finding lexicography, not for that word alone in the spec, but for a double word phrase, which can sometimes be something different from what each of its components means.

[00:22:12] Speaker 04:
Yes, Your Honor.

[00:22:12] Speaker 04:
I understand your point.

[00:22:13] Speaker 04:
And I think our position just at a high level would be that

[00:22:16] Speaker 04:
the act of acquiring data is defined.

[00:22:18] Speaker 04:
It's defined via that definition.

[00:22:21] Speaker 04:
For acquired data, it's equivalent in verb forms.

[00:22:23] Speaker 04:
If acquiring data requires active data, per that definition, then acquiring interest data must require it as well.

[00:22:30] Speaker 04:
And that's, like we said, consistent with the definition of interest data in the specification.

[00:22:34] Speaker 04:
I do want to turn real quick, if there are no further questions on this.

[00:22:37] Speaker 01:
I do have a question.

[00:22:38] Speaker 01:
Yes, sir.

[00:22:39] Speaker 01:
And maybe I missed it, but does the P tab go anywhere

[00:22:43] Speaker 01:
appreciate or mention this high standard of lexicography that's been mentioned here?

[00:22:48] Speaker 04:
I don't recall off the top of my head if they specifically mentioned the high standard of lexicography.

[00:22:54] Speaker 04:
I don't remember them citing any particular law on that point.

[00:22:59] Speaker 04:
OK, thank you.

[00:23:00] Speaker 03:
Would you like to address claim 20, the dependent claim?

[00:23:03] Speaker 04:
Yes, Your Honor, I would love to address that.

[00:23:05] Speaker 04:
That was actually where I was going next.

[00:23:06] Speaker 04:
Excellent.

[00:23:07] Speaker 04:
So the first thing I want to point out about claim 20 is they've already invalidated claim 20

[00:23:12] Speaker 04:
under the board's construction where claim 20 depends on claim 1.

[00:23:15] Speaker 04:
They are now trying to come back and say, oh, wait a second.

[00:23:17] Speaker 04:
Never mind.

[00:23:18] Speaker 04:
This court should now interpret claim 20 as depending on claim 19, even though it expressly depends on claim 1.

[00:23:26] Speaker 04:
I mean, we think that vote is sailed.

[00:23:27] Speaker 04:
Claim 20, they can't come in here and now argue that it should depend on claim 19 when they've already invalidated claim 20 based on its dependency on claim 1.

[00:23:36] Speaker 03:
So you think that we should assume some sort of judicial estoppel?

[00:23:38] Speaker 03:
I mean, I think that the claim construction is a matter of law.

[00:23:41] Speaker 03:
So I get to construe claim 20 as a matter of law.

[00:23:45] Speaker 03:
I'm not usually bound by anything parties stipulate to on law.

[00:23:48] Speaker 03:
I'm only bound by facts they stipulate to.

[00:23:52] Speaker 03:
So are you saying as a matter of judicial estoppel, for equitable reasons, I shouldn't allow them to sway me in my determination of a legal issue?

[00:24:02] Speaker 04:
I do believe that there is no appeal of the invalidity of claim 20.

[00:24:07] Speaker 04:
I mean, I don't know if they perhaps could have appealed and said, oh, the board should have found Claim 20 invalid under our other interpretation, where it depends on Claim 19.

[00:24:15] Speaker 00:
They didn't do that.

[00:24:18] Speaker 00:
I'm not remembering.

[00:24:19] Speaker 00:
What happened to Claim 20 in this IPR?

[00:24:22] Speaker 04:
Yes, Your Honor.

[00:24:22] Speaker 04:
Claim 20 was invalidated based on the combination of Kitts and Willner, which was a combination that was not asserted against Claim 19.

[00:24:32] Speaker 04:
that they did assert it against, they did assert it against claim 20.

[00:24:36] Speaker 04:
And they said, and Google's position was, they applied claim 20 as if it depended from claim one, right?

[00:24:43] Speaker 04:
And so Wilner and Kitts was used to invalidate claim 20 under that interpretation.

[00:24:47] Speaker 03:
Yeah, but if, did they not assert Kitts against claim 20?

[00:24:51] Speaker 03:
Because Kitts is limited to passive data, and if acquired interest data in 19 includes passive data, then it seems like 20's dead too.

[00:24:59] Speaker 04:
I don't know if I would disagree with that, Your Honor, but I will say they did apply kits against claim 20 and 19 as well.

[00:25:06] Speaker 04:
That's a standalone anticipation combination.

[00:25:09] Speaker 04:
And the board ended up saying, well, no, we find, and they actually ruled on this, they found that claim 20 depends on claim one.

[00:25:15] Speaker 04:
They looked at the prosecution history.

[00:25:16] Speaker 04:
We raised the arguments that there's actually portions of the prosecution history where the patentee

[00:25:21] Speaker 04:
Expressly stated that claim 20 was supposed to depend from claim 1 and the board said that's that's evidence enough for us to conclude that claim 20 should have been from claim 1 and and so and then validated the claim under Can you quickly you remember where that prosecution?

[00:25:36] Speaker 03:
Yes, your honor.

[00:25:37] Speaker 05:
I have it right here That would be appendix 291 to the page 291 to 92 and

[00:25:55] Speaker 02:
And it's... A mayor, I don't see anything about claim 20.

[00:26:03] Speaker 05:
What am I missing?

[00:26:05] Speaker 05:
Let me make sure.

[00:26:05] Speaker 05:
Maybe I give you the wrong quote.

[00:26:06] Speaker 02:
I think 292 maybe, not 291.

[00:26:08] Speaker 02:
Let's see, 292.

[00:26:12] Speaker 04:
It's 291 at the bottom.

[00:26:14] Speaker 04:
Let me clarify.

[00:26:15] Speaker 04:
So during prosecution, claim 21 is what issued as claim 20, and claim 2 issued as independent claim 1.

[00:26:27] Speaker 04:
And so really, it's just that first sentence there.

[00:26:29] Speaker 04:
There's a discussion afterwards.

[00:26:37] Speaker 03:
Yeah, I hear you.

[00:26:38] Speaker 03:
But I guess I kind of thought maybe that's just a carryover of the mistake.

[00:26:45] Speaker 03:
The same person who drafted Claim 20 and undeniably made an error.

[00:26:51] Speaker 03:
Because either the error is to what it depends or the failure to contain

[00:26:56] Speaker 03:
antecedent basis.

[00:26:56] Speaker 03:
There's nothing in claim one about interest data.

[00:26:59] Speaker 03:
So how would you inclaim 20 narrow interest data, which is not present in claim one?

[00:27:06] Speaker 04:
Correct, Your Honor.

[00:27:07] Speaker 04:
And our position was that that was intended to refer to the model data of claim one.

[00:27:12] Speaker 04:
So to the extent there's an error there, that's the error, is they claim they referred back to the wrong data.

[00:27:19] Speaker 03:
We mean to the extent there's an error there.

[00:27:21] Speaker 03:
Are you disputing that there's an error in that?

[00:27:23] Speaker 04:
No, there's an error that they only then argue the correction.

[00:27:26] Speaker 03:
Same 20 has an error in it?

[00:27:27] Speaker 04:
Correct.

[00:27:28] Speaker 04:
Correct, Your Honor.

[00:27:29] Speaker 03:
And your argument is the error is having not saying the word model data instead of the word interest data?

[00:27:36] Speaker 04:
Correct, Your Honor.

[00:27:36] Speaker 03:
Just out of curiosity, how often have you seen a patent written like this?

[00:27:41] Speaker 03:
I know I haven't.

[00:27:42] Speaker 03:
where claim one is the independent claim, and then all the things that depend only from claim one usually are two, three, four, five.

[00:27:51] Speaker 03:
I don't know that I've ever seen a patent that then introduces a new independent claim, like claim 19, and then claim 20 goes back to depending on claim one.

[00:28:01] Speaker 03:
Do you understand my sort of concern?

[00:28:05] Speaker 03:
Have you seen a lot of patents that do that?

[00:28:06] Speaker 04:
I know I've seen this happen before.

[00:28:08] Speaker 04:
I will say I agree, too, that it's rare.

[00:28:10] Speaker 04:
It's rare and I think it's just typically the way they order the claims.

[00:28:14] Speaker 04:
I mean, typically they'll order them and they would have moved 20 in this case up one, right?

[00:28:19] Speaker 04:
That's typically what happens, right?

[00:28:22] Speaker 04:
That's just typically the way I think the examiners do it when they issue the claims.

[00:28:26] Speaker 04:
And I don't know why that didn't happen here, but I understand your point, Your Honor.

[00:28:30] Speaker 03:
Okay.

[00:28:31] Speaker 03:
Okay.

[00:28:32] Speaker 03:
Thank you so much.

[00:28:33] Speaker 03:
We'll hear from Mr. C.

[00:28:45] Speaker 06:
Thank you, Your Honor.

[00:28:46] Speaker 06:
Just briefly on the stock phrase equivalence and verb forms, I just want to point out another thing that's kind of troubled me with that is the word equivalence.

[00:28:55] Speaker 06:
They've taken the position that the terms of painting, retrieving, and what have you are also used in the specification.

[00:29:01] Speaker 06:
Those are synonyms of acquiring.

[00:29:04] Speaker 06:
I would consider those to be equivalents of acquiring, but they've conceded that those other terms are used to reference the generic reception of information.

[00:29:14] Speaker 06:
So it just shows that this stock phrase, as Your Honor put it, really adds just confusion.

[00:29:19] Speaker 06:
In a case of lexicography, we can't have confusion.

[00:29:22] Speaker 06:
On the Claim 20 thing, just so we're all on the same page, because it had an error on its face, our petition said it's

[00:29:28] Speaker 06:
If it depends from 1, it's unpatentable, and that's at appendix 165 to 166.

[00:29:35] Speaker 06:
Then we said if it depends from claim 20 because... 19.

[00:29:39] Speaker 06:
Sorry, 19.

[00:29:40] Speaker 06:
If it depends from 19, it makes sense that it would.

[00:29:43] Speaker 06:
It's also unpatentable that way.

[00:29:44] Speaker 06:
We showed it both ways.

[00:29:45] Speaker 06:
The board just went with the first one.

[00:29:47] Speaker 06:
We didn't appeal the claim construction because we prevailed below and we would have been, it would have been an improper appeal for us to do that.

[00:29:54] Speaker 06:
But for that same token, traditional principles of stop can apply because we couldn't appeal it.

[00:29:58] Speaker 03:
Well, you couldn't appeal it and you couldn't even do it as a conditional cross appeal because they didn't appeal it.

[00:30:03] Speaker 06:
Exactly.

[00:30:04] Speaker 06:
Right.

[00:30:04] Speaker 06:
There's just nothing we can do about it until we're not bound by that construction.

[00:30:07] Speaker 06:
Your Honor, it's certainly not bound by that construction.

[00:30:08] Speaker 06:
And again, you don't actually need to correct it.

[00:30:10] Speaker 06:
You just have to agree that it introduces more ambiguity.

[00:30:13] Speaker 06:
And we can't have lexicography with this ambiguity.

[00:30:16] Speaker 06:
And I'll just point out there was no dispute that Kitts does anticipate claim 19 under our construction.

[00:30:23] Speaker 06:
And so there's no need for remant and reversal would be appropriate.

[00:30:26] Speaker 06:
Unless there's any questions, I will breathe one more time.

[00:30:29] Speaker 03:
Thank you, Mr. Spee.

[00:30:32] Speaker 03:
Thanks with counsel, this case is taken under submission.