[00:00:00] Speaker 03:
We will hear argument next in number 241612, RF Cyber against Squires.

[00:00:09] Speaker 03:
Mr. Cowell.

[00:00:11] Speaker 01:
Thank you.

[00:00:11] Speaker 01:
May it please the court, and good morning, Your Honors.

[00:00:14] Speaker 01:
The issue before the court here is whether the Larissy software that was located on a server could somehow satisfy the claim limitation EPRS maintained locally in the mobile device.

[00:00:28] Speaker 01:
That limitation was itself construed in two parts.

[00:00:32] Speaker 01:
The first part, ePERS, was construed as software that stores electronic financial information in a local device.

[00:00:39] Speaker 01:
Now, whether LRC has software that stores that financial information in a local device is not at issue on this appeal.

[00:00:45] Speaker 01:
The board found that it did, and they are challenging that here.

[00:00:48] Speaker 01:
What we are challenging is the second part, which is maintained locally in the mobile device.

[00:00:54] Speaker 01:
It was shown in the evidence below to the board,

[00:00:57] Speaker 01:
that Larissy software that stores information is located on the TMS server.

[00:01:04] Speaker 01:
The position at Apple did not challenge that.

[00:01:06] Speaker 01:
They, in fact, said that the payment account management system portion of the TMS server updates and synchronizes the account balances.

[00:01:16] Speaker 01:
That's what is doing the storing of the electronic financial information.

[00:01:23] Speaker 01:
It is that server part.

[00:01:25] Speaker 01:
The board did not

[00:01:26] Speaker 01:
address this in any full manner.

[00:01:30] Speaker 01:
It conflated the two requirements and determined that because information was stored locally, the software storing that information, which must be maintained locally, also met that limitation.

[00:01:44] Speaker 00:
Now, you never asked for any claim construction between maintaining and stored, right?

[00:01:50] Speaker 01:
We did not.

[00:01:51] Speaker 01:
And I want to make clear there's two separate prongs of this appeal.

[00:01:55] Speaker 01:
The first one

[00:01:56] Speaker 01:
Even under the board's construction of maintaining as at least encompassing storing, there's no evidence in the board didn't make the proper factual findings that the EPIR software was on the local device.

[00:02:13] Speaker 01:
As I said a few moments ago, it was on the server.

[00:02:20] Speaker 01:
Now, the second prong is the claim construction prong that Your Honor just mentioned.

[00:02:26] Speaker 01:
And the board simply determined, based on supposed admissions made by our cyber, that maintaining means storing.

[00:02:38] Speaker 01:
But again, it still did not grapple with the central question of whether the EPRS itself was stored on the local device.

[00:02:46] Speaker 01:
What the board did instead, it determined that Larissy discloses storing financial information on the device.

[00:02:56] Speaker 01:
Larissy discloses accessing that information on the device and Larissy discloses software that stores information locally.

[00:03:03] Speaker 01:
However, it did not combine the two, combine the software that stores information locally with the software that's on the actual device.

[00:03:12] Speaker 01:
And it could not because the TMS is on the server and Apple did not challenge that.

[00:03:17] Speaker 02:
I'm sorry, what is on the server?

[00:03:18] Speaker 01:
The TMS.

[00:03:20] Speaker 01:
That's the

[00:03:21] Speaker 01:
software actually performs the storing, updates and synchronizes the accounts between all the devices.

[00:03:30] Speaker 00:
Council, are you thinking there's some type of temporal requirement with regard to maintaining the ePERS?

[00:03:36] Speaker 01:
There's not a particular temporal requirement.

[00:03:39] Speaker 01:
I don't believe we argued for that either to the board or in this case.

[00:03:44] Speaker 01:
We did argue that maintaining means something more than simply storing.

[00:03:48] Speaker 01:
That's the second prong here, which the board

[00:03:51] Speaker 01:
simply determined that they were the same thing.

[00:03:55] Speaker 01:
It picked two supposed admissions.

[00:03:59] Speaker 01:
The first one is electronic.

[00:04:01] Speaker 00:
When you said that you argued that maintaining simply means something different than storing, I thought we did talk about specifically that you didn't argue in terms of claim construction that there was a difference between maintaining and storing.

[00:04:13] Speaker 01:
So there was not a formal request for a claim construction on that particular term.

[00:04:19] Speaker 01:
our cyber proceeded under what it understood to be the plain meaning of maintaining that involves, frankly, maintenance, not simply storage.

[00:04:29] Speaker 01:
The board never asked for a claim construction briefing.

[00:04:33] Speaker 01:
And so our cyber argued, OK, well, the only maintaining that's done in Laracy is updating and synchronizing these balances and the financial information between the devices.

[00:04:42] Speaker 02:
When you say maintenance as opposed to storage, the term maintenance, I know it's close to maintaining.

[00:04:49] Speaker 02:
What do you mean by maintenance in this context?

[00:04:53] Speaker 02:
Because that's a new concept, I think, that I hadn't seen in the briefs.

[00:04:56] Speaker 01:
Yeah, I don't believe that is in the briefs.

[00:04:58] Speaker 01:
I'm trying to elucidate, but certainly, maintenance is not in the briefs.

[00:05:02] Speaker 02:
But what do you mean by that?

[00:05:03] Speaker 01:
When I think of maintaining, and I think that was our understanding below, is maintaining means keeping something in good repair, such as maintenance.

[00:05:14] Speaker 01:
In this case, keeping the accounts synchronized so that they have

[00:05:19] Speaker 01:
updated information.

[00:05:23] Speaker 00:
Do you have any specification support for your proposed definition of maintaining?

[00:05:29] Speaker 01:
As we cited to, there's no explicit definition of what maintaining means.

[00:05:34] Speaker 01:
However, as we cited in our brief, there's discussions of maintaining a transaction log.

[00:05:39] Speaker 01:
And maintaining a log, I think by its very terms, means updating that log as more and more transactions come in.

[00:05:45] Speaker 01:
And there's also maintaining a log with respect to the secure element and the configuration of it, which, again, strongly implies, if not explicitly states, that you have to update that log as facts proceed, as further information comes in.

[00:06:04] Speaker 03:
Can I just ask you a question about what I think you began with?

[00:06:10] Speaker 03:
We've just been talking about

[00:06:13] Speaker 03:
Maintain versus store, and how maintain requires some, in your view, some sort of keeping up to date.

[00:06:21] Speaker 03:
But before that, you got to a point about how there might be information stored on the mobile device, but not software.

[00:06:28] Speaker 03:
And I think I heard you say that the board never really addressed that.

[00:06:34] Speaker 03:
Didn't the board address that on pages 18 and 19 of the appendix?

[00:06:39] Speaker 03:
I mean, they're certainly relying on

[00:06:45] Speaker 03:
Some expert testimony.

[00:06:49] Speaker 01:
There is definitely software on the mobile device.

[00:06:53] Speaker 01:
We're not challenging that.

[00:06:54] Speaker 01:
The question is whether that software is what's performing the actual storing, which in our view it is not.

[00:07:02] Speaker 01:
Our view of the storage is done remotely by the server, the TMS server.

[00:07:07] Speaker 02:
What does the software, in your view, on the mobile device, what does it do?

[00:07:14] Speaker 01:
What it does is it reads the information that was provided to the device, and it uses that information to perform a transaction.

[00:07:21] Speaker 02:
So that information is transmitted to the mobile device, and the mobile device engages in operations based on that information and then sends back some kind of feedback to the server.

[00:07:39] Speaker 01:
That's correct.

[00:07:39] Speaker 02:
Yeah.

[00:07:40] Speaker 02:
And that, you say, does not constitute, cannot be viewed as maintaining.

[00:07:47] Speaker 01:
Yeah, it is not maintaining, yes.

[00:07:49] Speaker 02:
I mean, it's also, it's not even for a short period of time necessary to complete the transaction.

[00:07:59] Speaker 01:
Right.

[00:07:59] Speaker 01:
And I think there's a bit of a disconnect even in the board's decision.

[00:08:04] Speaker 01:
It's not necessarily the information that must be maintained, although it does practically have to be.

[00:08:10] Speaker 01:
It's the software that does the storing must be maintained on the local device.

[00:08:16] Speaker 01:
So if we're thinking of, say, a restaurant, the waiter who's delivering the meal must be at the table, which makes no sense.

[00:08:26] Speaker 01:
In this case, there's the diners at the table who are consuming the information that's provided, but the waiter himself is not at the table.

[00:08:33] Speaker 01:
He's delivering it and then returning it back to the server.

[00:08:37] Speaker 01:
And I don't believe the board would do that.

[00:08:40] Speaker 02:
I'm not sure I completely followed the waiter analogy, but the waiter is certainly at the table at various points in the sequence of events leading to the completion of the meal.

[00:08:52] Speaker 02:
I'm not sure if the analogy really gets us very far, but the question, as I see it, is related to for how long a period of time through

[00:09:11] Speaker 02:
one transaction or multiple transactions, that information is transmitted to and, I don't want to use the word maintained, but it's transmitted to and manipulated on the mobile device.

[00:09:27] Speaker 02:
And so for some discrete period of time, that occurs on the mobile device, right?

[00:09:34] Speaker 01:
Yes, that occurs.

[00:09:35] Speaker 01:
And that's why we not challenge that the information is stored on the mobile device.

[00:09:41] Speaker 02:
And the reason it's not maintained on the mobile device, give me exactly what your view is as to why.

[00:09:50] Speaker 02:
It's stored there, but it's not maintained.

[00:09:53] Speaker 02:
It's not manipulated in a way that constitutes keeping it in good trim, or what?

[00:10:02] Speaker 01:
I mean, that is not done on the mobile device.

[00:10:05] Speaker 01:
It is not updated.

[00:10:09] Speaker 02:
Applying the term maintaining to the particular actions that occur on the mobile device in this case, what is it that does not happen, that needs to happen, or would need to happen to constitute maintaining?

[00:10:27] Speaker 01:
What would need to happen is that the software that actually has the current status of the information, the nebulous information, however you want to pose it,

[00:10:39] Speaker 01:
That would have to exist on the mobile device.

[00:10:43] Speaker 01:
It does not.

[00:10:45] Speaker 01:
That's the EPR software, and that exists on a server.

[00:10:50] Speaker 01:
It's not on the mobile device.

[00:10:53] Speaker 01:
And that's the central issue right here.

[00:10:58] Speaker 03:
Why don't you save your rebuttal time, and we'll hear from the other side.

[00:11:04] Speaker 01:
Thank you.

[00:11:15] Speaker 04:
Good morning, Your Honors, May it please the Court.

[00:11:17] Speaker 04:
Robin McBride on behalf of the intervener.

[00:11:20] Speaker 04:
I'd like to just pick up what we left off here about the claim requires maintaining and storing the software and the financial information on the local device and the board found that Larissy teaches both of those requirements.

[00:11:37] Speaker 04:
Specifically, they pointed to Larissy at paragraphs 24, 46, and 91 where Larissy explains that

[00:11:46] Speaker 04:
You can download software computer code in the form of an application or an app You can download that app onto the mobile device which can be an iPhone or an Android phone so that that's a clear teaching that Larissy downloads and stores the software on the mobile device and then separately Larissy also says in paragraphs

[00:12:10] Speaker 04:
36 and 98 to 101 which the board cited to.

[00:12:15] Speaker 04:
It goes into detail about all the financial information that is transmitted and downloaded into the mobile device including the detailed transaction

[00:12:26] Speaker 04:
information for the current transaction, as well as the customer's financial accounts, including their payment options, such as a credit account, a debit account, loyalty reward points, and this is all shown in Figure 8B, as well, of Larissy.

[00:12:44] Speaker 04:
I didn't want to interrupt you.

[00:12:45] Speaker 02:
You can finish that point.

[00:12:46] Speaker 02:
I had a question, though.

[00:12:47] Speaker 02:
Oh, yeah, go ahead.

[00:12:49] Speaker 02:
Okay.

[00:12:50] Speaker 02:
The thing that has thrown me a bit off here is that

[00:12:53] Speaker 02:
We've been talking and in the briefs talk about information being either in the stored or maintained, either in the mobile device or in the server.

[00:13:06] Speaker 02:
But the language of the claim is an electronic purse maintained locally in the mobile device.

[00:13:14] Speaker 02:
Now, I understand we're dealing with software here and that therefore this is not a physical object in the sense that it would be if it were an actual purse.

[00:13:24] Speaker 02:
But I'm struggling with the notion that simply having information in the local device, does that necessarily mean that the electronic purse is in the mobile device?

[00:13:40] Speaker 02:
And if not, what is necessary to make the electronic purse be in the mobile device?

[00:13:49] Speaker 04:
That's a good question.

[00:13:50] Speaker 04:
So the electronic purse was the subject of the claim instruction.

[00:13:54] Speaker 04:
And the electronic purse was construed as software that stores the electronic financial information in a local device.

[00:14:03] Speaker 04:
So there's really two things that need to be stored.

[00:14:06] Speaker 04:
One is software that has to be stored in the local device.

[00:14:09] Speaker 04:
And then two is that you also have to have the financial information that is stored in the electronic device.

[00:14:15] Speaker 02:
So you're saying as long as you have software

[00:14:18] Speaker 02:
In the electronic device that stores financial information for some period of time, you've satisfied the electronic purse maintained requirement.

[00:14:27] Speaker 04:
Yes.

[00:14:28] Speaker 02:
And the electronic purse, to the extent that it is a piece of software that stays on the electronic device, is what is maintained on the electronic device, regardless of whether information comes and goes and comes and leaves instantaneously.

[00:14:46] Speaker 04:
Yes, I think the information is stored in two different places, to be clear.

[00:14:50] Speaker 04:
It's stored on this remote server, which is the transaction management system, 130.

[00:14:55] Speaker 04:
So it's stored there.

[00:14:56] Speaker 04:
And it's also it's downloaded, it's transmitted, downloaded and stored on the local device as well.

[00:15:02] Speaker 04:
So it's stored in both places.

[00:15:04] Speaker 04:
And Larisee says,

[00:15:05] Speaker 04:
It goes into detail how each transaction you transmit this information.

[00:15:09] Speaker 04:
So it's the current information.

[00:15:12] Speaker 04:
It shows the current account balances for the user that the user has in their credit account and their debit account.

[00:15:18] Speaker 04:
So then the user can make an informed decision about how to settle up and pay for the transaction.

[00:15:25] Speaker 04:
And I'd also point out that

[00:15:27] Speaker 04:
There's some confusion about what maintaining means versus stored.

[00:15:32] Speaker 03:
Is there a difference?

[00:15:33] Speaker 03:
Stay for a minute on the distinction between the software and the information.

[00:15:40] Speaker 03:
The definition, the construction of ePERS requires that software, which has to be stored, maintained.

[00:15:47] Speaker 03:
At this point, I don't care about the difference between those two.

[00:15:50] Speaker 03:
Software has to be somehow resident for some period of time on

[00:15:55] Speaker 03:
the mobile device and that software has to perform a particular function, namely storing financial information in the local device.

[00:16:05] Speaker 03:
I took it that Mr. Cowell's point is that the board never said that

[00:16:12] Speaker 03:
there was software on the mobile device resident there for some period of time that performs that particular function, not doing transactions, whatever else that may mean, but the storing function.

[00:16:27] Speaker 03:
And where did the board say that Larissy does teach that?

[00:16:36] Speaker 04:
So this is, I think,

[00:16:37] Speaker 04:
The board decision page is 18, 19, and 20.

[00:16:40] Speaker 04:
I'm looking at page 20 in particular.

[00:16:44] Speaker 04:
The board's talking about how LERC discloses the mobile device that uses software to conduct the payment transactions.

[00:16:53] Speaker 04:
It explains how that software is downloaded onto the mobile device in the form of either computer code or an application or an app.

[00:17:03] Speaker 04:
And they point to Larissy, paragraphs 24.

[00:17:06] Speaker 04:
I can tell you exactly what paragraph 24 says.

[00:17:12] Speaker 04:
This is at A1462.

[00:17:20] Speaker 04:
It's giving an example of Sam and Jane, but it says, Jane will access and use the payment system of the present invention by downloading and configuring an iPhone application or app configured to facilitate payment transactions pursuant to the present invention.

[00:17:36] Speaker 04:
So that's a clear teaching that is downloading the software.

[00:17:39] Speaker 04:
And then it goes into... What page was that again?

[00:17:41] Speaker 04:
That's A1462.

[00:17:43] Speaker 04:
Okay.

[00:17:46] Speaker 04:
And it goes, I think that's a clear teaching, what there's additional teaching that paragraph 46.

[00:17:50] Speaker 03:
Right.

[00:17:52] Speaker 03:
So far, we're still at, I think, what Mr. Powell would say, at a level of generality that's too high, mainly.

[00:17:59] Speaker 03:
So we've got downloadable software to perform, to facilitate payment transactions.

[00:18:06] Speaker 03:
And I think his point is, where does the board find that the facilitation

[00:18:17] Speaker 03:
Created or enabled by that Downloaded software includes the storage function Inherently or what?

[00:18:33] Speaker 04:
Well, it goes in that not necessary Well, I think it does say that it like in paragraphs 98 through 101.

[00:18:42] Speaker 04:
This is a 1472 Larisee goes into

[00:18:48] Speaker 04:
detail how the financial information is transmitted and downloaded to the mobile device.

[00:18:57] Speaker 04:
It gives examples of how the data may include information about current account balances, and this is at A1472, paragraph 99, the second column.

[00:19:08] Speaker 04:
That's actually the last sentence of that paragraph.

[00:19:11] Speaker 02:
It says the data may include information about... I'm sorry, what was the last page reference you gave?

[00:19:16] Speaker 02:
A1472.

[00:19:17] Speaker 04:
Yeah, end of paragraph 99.

[00:19:20] Speaker 04:
Oh, paragraph 99.

[00:19:21] Speaker 04:
99, OK.

[00:19:21] Speaker 04:
Yes, the very last sentence of that paragraph, which is at the top of column two.

[00:19:27] Speaker 04:
It says, the data that's transmitted may include information about current account balances, loyalty programs, discounts, marketing messages, or the like.

[00:19:38] Speaker 04:
And it talks about it in the following paragraph.

[00:19:44] Speaker 04:
It's depicted in A, B.

[00:19:46] Speaker 04:
It says in some embodiments, the display may include information about the status.

[00:19:51] Speaker 04:
And it actually says here explicitly, it says in some embodiments, this is in paragraph 100, it says the payment account information is not stored in some embodiments.

[00:20:03] Speaker 04:
Where in that paragraph are you looking?

[00:20:06] Speaker 04:
So I'm at line, there's no line number.

[00:20:08] Speaker 04:
So this is a paragraph 100.

[00:20:11] Speaker 04:
Just below the middle of the paragraph?

[00:20:12] Speaker 02:
I see it just toward the bottom, next to last sentence.

[00:20:15] Speaker 04:
Yes.

[00:20:16] Speaker 04:
It says that in some embodiments, the actual payment account information is not stored in the mobile device.

[00:20:23] Speaker 04:
And in those embodiments, you can use some other arrangement.

[00:20:28] Speaker 04:
But for these other ones, it is stored in the mobile device.

[00:20:33] Speaker 04:
And it shows all the information that's stored.

[00:20:37] Speaker 04:
And if you go to Figure 8B, which is at

[00:20:40] Speaker 04:
It gives an example of all the detailed transaction and account information.

[00:20:49] Speaker 04:
It's got what you owe for this particular transaction.

[00:20:51] Speaker 04:
It's got your credit account with the account number and the balance.

[00:20:57] Speaker 04:
It's got the debit account with the debit balance, the gift card and the gift card balance.

[00:21:02] Speaker 04:
Those paragraphs we just referred to in 99 and 100 says those are the current balances Current information it says it's stored on the local device.

[00:21:14] Speaker 04:
That's the financial information It also says you download and store the software and I think in combination.

[00:21:21] Speaker 04:
That's Substantial evidence to support divorce decision and counts.

[00:21:26] Speaker 00:
I think you would point to probably appendix pages 22 and 23 and

[00:21:31] Speaker 00:
for where the board itself kind of walked through how stuff is stored on the mobile device.

[00:21:38] Speaker 00:
Would those be some of the pages you would look to?

[00:21:41] Speaker 04:
22 and 23.

[00:21:44] Speaker 04:
Yes.

[00:21:45] Speaker 04:
Yes, they're talking about in the middle

[00:21:49] Speaker 04:
uh... eight twenty-two they're they're referring to the story maintain the the financial information they're they're they point out how they argue that they refer to storing and maintaining interchangeably throughout their briefing their their key argument was that larry's the only stores and maintains the information on the remote server and not on the local device and the board's pointing out that it's actually doing it uh... and on both

[00:22:14] Speaker 00:
Do you believe that we would need to agree that storing and maintaining means the same thing for you to get an affirmance?

[00:22:22] Speaker 04:
I think in this case, all of the evidence in the record supports the board's determination that there was no substantial or no real difference in meaning between storing and maintaining in the context of the claims here because the way it was brought up

[00:22:38] Speaker 04:
was RF Cyber injected this proposed construction using the word storing as part of their claim construction, and they never argued that storing meant something different than maintaining or vice versa.

[00:22:50] Speaker 04:
In fact, they did the opposite in their patent owner response.

[00:22:53] Speaker 04:
They refer to storing and maintaining interchangeably.

[00:22:55] Speaker 04:
If you look at their patent owner response at A253, there's a good example of this.

[00:23:03] Speaker 04:
I'm sorry, it's A252 at the very bottom, the last line.

[00:23:07] Speaker 04:
They say that in the Larissy system, electronic financial information related to a customer's accounts are stored, and then in parentheses, they've said maintained, are stored, maintained in remote servers.

[00:23:22] Speaker 04:
That's one example, but their briefing is just replete with examples how they explain that Larissy doesn't store information locally, how it doesn't maintain information locally.

[00:23:32] Speaker 04:
and those terms are just used interchangeably.

[00:23:35] Speaker 04:
They never made an argument that maintaining meant something different than storing or that it had to have some temporal requirement, some duration.

[00:23:44] Speaker 04:
In fact, one of the APJs at the oral hearing specifically asked that question and our cyber said there's nothing in the claim that requires a temporal requirement for storing or for maintaining.

[00:23:57] Speaker 04:
I'd also point to, if you just look at the claim language itself, it doesn't have any additional requirement that maintaining means doing it continuously or keeping it up to date.

[00:24:07] Speaker 04:
There's nothing in this packet that defines these two terms, and there's nothing in the prosecution history that would suggest they mean something different.

[00:24:15] Speaker 04:
So I think all of the intrinsic evidence supports the board's determination here, and it's also consistent with the arguments that were presented to the board.

[00:24:23] Speaker 00:
So just to kind of sum up, I don't know if you answered directly my question, though.

[00:24:28] Speaker 00:
Do you think that we have to agree that storing and maintaining mean the same thing for you to win?

[00:24:34] Speaker 04:
I think that's how the board decided the case.

[00:24:36] Speaker 04:
I think if you were even to disagree with the board and say storing

[00:24:41] Speaker 04:
just means storing it for a short time and maintaining has this additional requirement that it's maintained on an ongoing basis.

[00:24:49] Speaker 04:
I think Larissy does have a teaching that it

[00:24:54] Speaker 04:
For every transaction, it's going to download the current account information.

[00:24:59] Speaker 04:
And so there is some ongoing downloading process going on there that's more than just storing it for an instant.

[00:25:08] Speaker 04:
So I think you could find that it's harmless error and affirm on that basis if you were to agree that maintaining had this additional requirement.

[00:25:16] Speaker 04:
And I'd also point out in their patented response,

[00:25:23] Speaker 04:
They made a statement that literacy always downloads the current information.

[00:25:29] Speaker 04:
Oh, this is an 8-3-2-6.

[00:25:33] Speaker 04:
Go ahead.

[00:25:34] Speaker 04:
At the very top of that page, they stated that Larissy always downloads the current information before processing a transaction.

[00:25:43] Speaker 04:
And that's supported by statements from their own expert.

[00:25:48] Speaker 04:
Both experts stated that Larissy downloads the current account information before each transaction.

[00:25:54] Speaker 04:
So I think if you were to find that maintaining did require something more than storing, you could affirm on that basis as well.

[00:26:05] Speaker 04:
If there's no further questions, I'll yield the rest.

[00:26:08] Speaker 01:
Thank you.

[00:26:23] Speaker 01:
So I think Judge Toronto, I think you hit the issue quite on the head when the issue is whether the electronic purse itself is in the local device.

[00:26:32] Speaker 01:
And that's the dispute we have.

[00:26:34] Speaker 01:
And Mr. McBride, I think, spent a lot of time talking about how information was stored on the local device, downloaded to the local device in the glass.

[00:26:42] Speaker 01:
And he said before he sat down.

[00:26:44] Speaker 01:
But that has nothing to do with whether the software that performs that storing, the ePERS, electronic PERS software, that has nothing to do with whether that is on the local device.

[00:26:54] Speaker 01:
And the only example I believe he gave was downloading an app.

[00:26:57] Speaker 01:
But downloading an app is meaningless unless that app itself is doing the storing.

[00:27:03] Speaker 01:
And there's no disclosure in Larissy that the app is doing the storing, because it is the TMS server.

[00:27:08] Speaker 01:
The board never found that there was an app doing the storing.

[00:27:13] Speaker 01:
There's nothing within 820 to 23 or so, which I believe Mr. McBride cited.

[00:27:19] Speaker 01:
That's all talking about consuming that information that is already stored.

[00:27:24] Speaker 00:
Well, what is your response to opposing counsel's pointing us to Larissy always downloading the current information?

[00:27:31] Speaker 00:
Do you have a response to that?

[00:27:33] Speaker 01:
Yeah, I have a few responses to that.

[00:27:35] Speaker 01:
First, we don't disagree that the system as a whole downloads the information to the device.

[00:27:42] Speaker 01:
We believe the portion of the software, the only disclosed portion of the software that does that downloading is on a server and not the local device.

[00:27:51] Speaker 01:
And I believe Mr. McBride cited that as evidence that if you find storing and maintaining are not the same thing, you can affirm under harmless error.

[00:27:58] Speaker 01:
But I believe that would entail

[00:28:00] Speaker 01:
making factual findings that the court is not in the best position to do in it.

[00:28:04] Speaker 01:
In that case, I think it may have to vacate and revamp the board.

[00:28:10] Speaker 03:
Now, was there, I guess this is what I want to ask you.

[00:28:16] Speaker 03:
And there may be some premises you want to correct.

[00:28:21] Speaker 03:
I take it that starting around page 18 for a few pages, the board says,

[00:28:30] Speaker 03:
There is, in fact, software on the mobile device that performs functions that are part of the definition of the heapers.

[00:28:43] Speaker 03:
And you're, I think, saying, assume that to be true, but not the crucial storing function.

[00:28:58] Speaker 03:
Where in your patent owner response did you make that distinction?

[00:29:06] Speaker 03:
As opposed to saying all these functions in Larissy are being directed by the commands that reside in software on the server.

[00:29:18] Speaker 03:
Did you treat it all as a

[00:29:22] Speaker 03:
unit these functions or segregate them into different functions and saying, well, maybe some are resident in code on the mobile device, but not this one.

[00:29:36] Speaker 01:
If you look at A259, there is the clear statement, to the extent Larisee discloses any software that stores financial information, that software is maintained on a server, not locally in the mobile device.

[00:29:51] Speaker 01:
I can't think of a way to say it clearer than that, that that was the distinction we were making.

[00:29:56] Speaker 01:
And we spent several pages following that, explaining the maintaining limitation as opposed to the storing limitation.

[00:30:07] Speaker 01:
And I would say Mr. McBride said our briefing was replete with conflating storing and

[00:30:15] Speaker 01:
Maintaining, I would disagree strongly on that.

[00:30:18] Speaker 01:
You can read A259-265 is all about maintaining, not storing.

[00:30:23] Speaker 01:
And indeed, the board only cited two particular instances, both of which we addressed strongly in our briefing.

[00:30:33] Speaker 01:
The court has no further questions.

[00:30:35] Speaker 01:
OK, thank you.

[00:30:36] Speaker 03:
Thank you.

[00:30:36] Speaker 03:
Thanks from all counsel.

[00:30:37] Speaker 03:
The case is submitted.