[00:00:00] Speaker 04: Our next case for argument is 24-1541, Netflix versus DivX. [00:00:07] Speaker 04: Mr. Fleming, please proceed. [00:00:11] Speaker 00: Good morning, and may it please the court, Mark Fleming from WilmerHale, together with Laura Matlock-Colangelo and Nora Zhu on behalf of Netflix. [00:00:18] Speaker 00: The board originally called our view the more natural and the more grammatically correct construction. [00:00:24] Speaker 00: And in its first final written decision, which this court reviewed in the last appeal, it reiterated that Divix's interpretation of limitation L was unpersuasive. [00:00:33] Speaker 00: On remand, though, it decided for the first time that the modifier at issue modifies not the noun phrase that immediately precedes it, but instead modifies a more remote term, encryption information. [00:00:43] Speaker 00: That's contrary to the claim language and to the intrinsic record. [00:00:49] Speaker 03: I think I have a be in my bonnet about the use of the word plain. [00:00:55] Speaker 03: I don't think that whatever else is going on here, this is plain. [00:01:00] Speaker 03: This is a linguistic, a language structure that is very, very common. [00:01:08] Speaker 03: And precisely because it so plainly is susceptible as a syntactic matter to two different ways of interpreting it, there is a very strong background principle of default interpretation. [00:01:26] Speaker 03: I don't view that as plain, but I do view it very much as ordinary and natural against the background of the rule. [00:01:34] Speaker 00: I don't disagree with that at all, and I hope I didn't say plain. [00:01:37] Speaker 00: I meant to say claim language. [00:01:40] Speaker 00: That's what I meant to say. [00:01:41] Speaker 03: I'm very sorry. [00:01:42] Speaker 03: Your brief is, I'd say, about 90% careful in avoiding the use of the word plain. [00:01:47] Speaker 03: It was my attempt to be so careful this morning as well. [00:01:50] Speaker 03: There was a lingering 10%. [00:01:51] Speaker 00: Well, I apologize for the 10% and it was not my intent to say that this morning. [00:01:56] Speaker 00: In fact, I was going to, I mean, I hope I don't have to convince the court that the background principles of grammar and usage are relevant to claim construction, but they're particularly applicable [00:02:07] Speaker 00: in the context of this particular claim. [00:02:11] Speaker 00: The context supports putting the partially encrypted frames in the requested stream portions. [00:02:17] Speaker 00: There is no context whatsoever suggesting that where the encryption information goes is of any consequence to this claimed invention. [00:02:26] Speaker 00: Limitation M locates the encryption information that calls out the relevant video frame parts which are going to be decrypted and then played back. [00:02:35] Speaker 00: And it's important that those frame parts be within the requested portions of the selected stream because that's what the viewer wants to watch. [00:02:42] Speaker 00: And then limitation M uses the encryption information to decrypt them in the requested stream portions [00:02:48] Speaker 00: And limitation N, as in Nancy, plays them back because that's what the viewer has requested. [00:02:55] Speaker 00: Nothing about where the encryption information is relevant at all to that. [00:02:59] Speaker 00: It could be situated anywhere. [00:03:00] Speaker 00: We're not saying they can't be within the requested stream. [00:03:03] Speaker 00: Where's anywhere? [00:03:05] Speaker 00: It could be in a top-level index file which is outside of the requested stream portions but still on the system. [00:03:12] Speaker 00: That is something that's perfectly doable and there's no evidence on the other side suggesting it can't be done that way. [00:03:17] Speaker 00: And our point is simply you can do it either way. [00:03:20] Speaker 00: That's what our expert testified to and there isn't ultimately any dispute on the other side that that's technically possible and there is nothing in the specification. [00:03:28] Speaker 00: Did your expert talk about putting it in the top-level index file? [00:03:31] Speaker 00: He said it could be done inside or outside the cluster, which is how the patent refers to the requested portions of the selected stream. [00:03:40] Speaker 00: He said they could be inside or outside. [00:03:42] Speaker 00: And we cite three embodiments where the encryption information is referenced, but it is not put within the requested portions of the selected stream. [00:03:52] Speaker 00: Those are in columns 3, 5, and 7. [00:03:55] Speaker 00: Once again, [00:03:55] Speaker 00: There are embodiments, this isn't disputed, where the encryption information is in the requested portions of the selected stream, but the invention is not limited to that. [00:04:04] Speaker 03: It is some sort of, I forget what you call it, the index file or something where the grandparent or parent, grandparent, right, 522 claim refers to [00:04:18] Speaker 03: information of this sort, which I think your point about that is that that carries the implication that the specification supports that idea. [00:04:31] Speaker 00: It most certainly does. [00:04:33] Speaker 00: Claim 1 of the parent patent doesn't specify where the encryption information goes. [00:04:38] Speaker 00: There's a dependent claim, claim 14, which does. [00:04:41] Speaker 00: And they're based on the same specification. [00:04:44] Speaker 00: And that shows, indeed, that as the patentee represented this to the patent office, [00:04:49] Speaker 00: It is possible to implement this invention without having the encryption information in the requested portions. [00:04:55] Speaker 00: There are other related patents, which we also cite, where the patentee showed that they knew how to specifically claim putting the encryption information inside the selected stream, notably not in the requested portions of the selected stream, which is the board's interpretation and DIVIX's interpretation. [00:05:11] Speaker 00: But it also shows that the patentee well knew how to recite specifically where the encryption information has to go. [00:05:19] Speaker 03: I'm remembering, I think, that there was a reference in the other side's brief to the idea that there is a particular benefit to be gained by putting the encryption information in the requested portions. [00:05:40] Speaker 03: I don't remember what record support there was for that assertion. [00:05:44] Speaker 03: Can you address if there was? [00:05:47] Speaker 00: What to make of it? [00:05:48] Speaker 00: I'm very glad you brought it up, Judge Toronto. [00:05:50] Speaker 00: There's no record support for it. [00:05:51] Speaker 00: There is notably no developed argument for it. [00:05:54] Speaker 00: This only comes up on pages six and seven of the red brief in the background section. [00:05:58] Speaker 00: In the argument section, it's not mentioned at all. [00:06:01] Speaker 00: There are a couple of references to suggest, it's attorney argument, that readily or quickly locating the encryption info is, quote, critical. [00:06:09] Speaker 00: That's their assertion. [00:06:10] Speaker 00: There's no evidence of this whatsoever. [00:06:11] Speaker 00: Their sites say nothing about the speed of retrieving encryption information. [00:06:17] Speaker 00: Nor do they suggest that putting the encryption information within the requested portions in any way would affect the speed. [00:06:22] Speaker 00: All of this stuff is on the same system. [00:06:24] Speaker 00: There's nothing in the spec and nothing in the record. [00:06:27] Speaker 00: I don't think they even argued it to the board. [00:06:28] Speaker 00: Certainly the board made no finding of it. [00:06:30] Speaker 00: If you look at pages 6 and 7 of the red brief, they cite column 13, starting at line 11. [00:06:36] Speaker 00: This is on 111 of the appendix. [00:06:38] Speaker 00: That portion of the spec discusses not the encryption information, but the common cryptographic keys, which is a different element. [00:06:45] Speaker 00: That's the element that they said was actually novel. [00:06:47] Speaker 00: when they were describing their invention to the district court. [00:06:50] Speaker 00: They cite their expert's report on 9457 to 9462. [00:06:54] Speaker 00: Dr. Nielsen, their expert, says nothing about the speed of getting the encryption information or the DRM information. [00:07:01] Speaker 00: And they cite 9466 also in his report where he doesn't even mention encryption information. [00:07:06] Speaker 00: So this is, I think, something that has been developed on appeal in an effort to suggest to the court that there's something important about where the encryption information is, when in fact... Do you agree with you, Mr. Fleming, that the board erred in its claim construction? [00:07:20] Speaker 04: What do we do with this case? [00:07:22] Speaker 00: I think because there is no dispute that under our claim construction, limitation L is satisfied by the prior art, you can reverse that finding, hold that limitation L is disclosed in the prior art, and then remand for further proceedings. [00:07:37] Speaker 00: There are a couple of arguments that despite this being the second appeal, the board still has not reached. [00:07:41] Speaker 00: So the issue that this court remanded the last time in our last appeal bearing on reasonable expectation of success is still kicking around. [00:07:53] Speaker 00: There is a suggestion in the previous opinion that there might be a motivation to combine issue. [00:07:56] Speaker 00: That was the focus of the argument on remand. [00:07:59] Speaker 00: So those things need to be decided. [00:08:01] Speaker 00: I hope there wouldn't be a third appeal in this case but I would hope that at the very least the board would address all the issues so that if there is a third appeal this court will have everything before it. [00:08:12] Speaker 00: There are a number of errors in the actual analysis the board put in front of the court. [00:08:17] Speaker 00: I'd just like to very quickly take through them if I may. [00:08:20] Speaker 00: The first is it misunderstood the reference to the Matroska container files. [00:08:25] Speaker 00: It believed that this invention was limited [00:08:28] Speaker 00: to a modified Matroska container file. [00:08:30] Speaker 00: That's contrary to the patent. [00:08:32] Speaker 00: Column 20 on A114 and Column 23 say that in a number of embodiments, the invention uses a standard or a conventional Matroska container. [00:08:44] Speaker 00: And that's important because DIVIX admits, they say it on page 7 of their brief and their expert admitted it in paragraph 90 of his declaration, that a standard Matroska container file cannot contain the encryption information. [00:08:57] Speaker 00: So if the invention can be implemented with a standard Matroska container file, it must be at least possible to put the encryption information somewhere else. [00:09:05] Speaker 00: Relatedly, the board erred in thinking that the location of the encryption information was what it called a central aspect of the claim. [00:09:12] Speaker 00: Again, it's only a citation for that was the conclusory assertion by their expert, Dr. Nielsen, which refers back to this mistake about the Matroska container. [00:09:21] Speaker 00: There was also [00:09:23] Speaker 00: The board wrongly thought it was unnecessary to specify where the encrypted portions of frames would be because limitation M subsequently does not say where they are. [00:09:34] Speaker 00: Of course, the reason limitation M doesn't say it is because it takes antecedent bases from limitation L, which already specifies that the frames are in the requested portions of the stream, which is what the viewer wants to watch. [00:09:45] Speaker 00: And finally, there was a significant error as to the embodiments disclosed in the spec. [00:09:50] Speaker 00: The board believed that every embodiment in the specification put the encryption information in the requested portions. [00:09:57] Speaker 00: That's not true, and it wouldn't matter even if it was, because as this court has said in numerous cases like Hillerom and Verizon versus Vonage, [00:10:05] Speaker 00: Just in 2024, after our opening brief was filed, but it's cited in our reply brief, coning like a Phillips versus Quectel, all that shows is that the embodiments are consistent with but not required by what's identified as the invention. [00:10:19] Speaker 00: So unless the court has any further questions at this time, I reserve the balance of my time for rebuttal. [00:10:25] Speaker 04: Mr. Lowenstein. [00:10:34] Speaker 02: Good morning, Your Honors. [00:10:35] Speaker 02: Nathan Lowenstein for DivEx, and may it please the Court. [00:10:39] Speaker 02: The board's construction of limitation 1L should be upheld because it is consistent with the plain meaning. [00:10:46] Speaker 02: I hope that doesn't upset you in Toronto. [00:10:49] Speaker 02: I'd say it's the only possible interpretation, but it's certainly consistent with the plain meaning. [00:10:53] Speaker 02: And you don't need to take my word for it. [00:10:55] Speaker 02: You can even read the dissenting judge's opinion. [00:10:58] Speaker 02: He said our construction is not incorrect. [00:11:02] Speaker 02: He said it is reasonable. [00:11:04] Speaker 02: And he says at the outset, everyone seems to agree that the limitation could be read one of two ways, as I think Your Honor alluded to at the outset. [00:11:13] Speaker 02: And so the question is, what would a person of ordinary skill in the art, reading the specification, how would he or she interpret this limitation? [00:11:23] Speaker 02: And so we have a self-contained limitation. [00:11:25] Speaker 02: It starts with the clause locating encryption information. [00:11:29] Speaker 02: And then there are two more clauses. [00:11:30] Speaker 02: The second one tells us what type of encryption information we are locating. [00:11:35] Speaker 02: And the third clauses tells where are we going to locate that type of encryption information. [00:11:40] Speaker 02: And I think the board reasonably found that there's a natural relationship between the- You keep saying reasonable. [00:11:46] Speaker 04: Do you think we have to give deference to the board's claim construction? [00:11:50] Speaker 02: Only to the factual findings. [00:11:52] Speaker 04: What factual finding is there? [00:11:54] Speaker 02: So they made numerous factual findings. [00:11:57] Speaker 02: So first of all, both experts. [00:11:58] Speaker 04: But the question is one of grammar on claim construction for the most part. [00:12:04] Speaker 04: So we don't give deference to that. [00:12:08] Speaker 02: I mostly agree with that, with the exception that in the Knowles case, this court said that you give things like the board's understanding of a dictionary, a treatise is reviewed for substantial evidence. [00:12:21] Speaker 02: And so the board, for instance, looked at grammatical treatises and found instances in those grammatical treatises that support our interpretation. [00:12:30] Speaker 02: And so I believe with that one distinction, I believe that sort of finding is reviewed for substantial evidence. [00:12:40] Speaker 02: And maybe we should pause there for a moment. [00:12:45] Speaker 02: The claim is susceptible to this interpretation because the rule that they say, the modifier has to be right next to the thing being modified. [00:12:53] Speaker 02: That comes from, for instance, Strunk and White. [00:12:55] Speaker 02: Strunk and White gives an exemplary example. [00:12:58] Speaker 02: The lawnmower that is broken is in the garage. [00:13:02] Speaker 02: There's no commas. [00:13:04] Speaker 02: And we could rewrite that to say locating the lawnmower that is broken within the garage. [00:13:08] Speaker 03: What are the two possible modificans of the modifier in the garage? [00:13:14] Speaker 03: There's only one lawnmower. [00:13:16] Speaker 02: Correct. [00:13:17] Speaker 02: Correct. [00:13:18] Speaker 02: It's not the same as this where there are two possible ones. [00:13:22] Speaker 02: My point is that it's very typical to have a clause with two trailing modifiers. [00:13:28] Speaker 02: And when you have a clause with two trailing modifiers, they can't both be immediately adjacent to the thing being modified. [00:13:34] Speaker 03: And I think you even pointed to there are ways of making that clear when that's what you want to do using the word and you [00:13:43] Speaker 02: You had a version with commas? [00:13:45] Speaker 02: I don't think any commas are necessary. [00:13:48] Speaker 02: And if you look at what I see as a parallel from the same grammatical treatise, there's no comma in the lawnmower that is broken. [00:13:56] Speaker 02: It's in the garage. [00:13:59] Speaker 02: Is there are two possible modifications? [00:14:01] Speaker 02: Well, I understand, Your Honor. [00:14:02] Speaker 02: But if someone put commas in there, I would tend to think they're unnecessary. [00:14:07] Speaker 02: And so clearly there's a relationship between the word, or there's often a relationship between the word locating and within. [00:14:13] Speaker 02: And it does beg the question of where is the encryption information being located? [00:14:19] Speaker 02: And that's where we get to the intrinsic record. [00:14:21] Speaker 02: And there the board found that it only supports one possible interpretation. [00:14:25] Speaker 02: That's because every single time this type of encryption information is mentioned, everywhere and always it is within the requested portion of the video. [00:14:37] Speaker 03: What about the portion that says it's not as detailed an embodiment, which I think is [00:14:50] Speaker 03: as some of the other specific embodiments, but the portion that says, you can do this with an ordinary Matroska container, not the modified one. [00:15:03] Speaker 02: So I think your honor is referring to the section. [00:15:06] Speaker 02: Bottom of column 20. [00:15:08] Speaker 02: It's a middle column 20th memory service. [00:15:10] Speaker 02: And so in that context, what they're talking about is requesting cluster elements. [00:15:14] Speaker 02: And you could modify it or not in that context. [00:15:17] Speaker 02: There's no statement that is disconnected from any statement about the type of encryption information that we're concerned with, which is the type that identifies which portions of the frame are encrypted. [00:15:29] Speaker 02: And so there's no statement anywhere in the patent that locates this type of encryption information anywhere else. [00:15:38] Speaker 02: Reasonable to your honor, I think you asked the question, well, yes, a couple of questions I'd like to address to my friend. [00:15:45] Speaker 02: The first was, you said, well, are there any benefits to this? [00:15:47] Speaker 02: And I would direct your honor to appendix 110, column 11, lines 45 to 50. [00:15:54] Speaker 02: That says, Mastroken container files are specialized container files that include enhancements, elements that do not form part of the Matroska file format specification that facilitate [00:16:08] Speaker 02: retrieval, and decryption using common cryptographic information. [00:16:12] Speaker 02: And so that's a clear statement that this is a specialized container format. [00:16:16] Speaker 02: It is an enhancement. [00:16:18] Speaker 02: And it facilitates decryption, because of course it does. [00:16:21] Speaker 02: We're in an adaptive bitrate streaming context, where you're trying to do things as quickly as possible. [00:16:25] Speaker 02: You want to do the best possible streaming quality at any given time. [00:16:29] Speaker 02: And obviously, you need to know which portions are encrypted, and you need to identify that immediately. [00:16:34] Speaker 02: And so what the patent teaches is not about saying this level of detail is required, but it puts this type of encryption information with the frame. [00:16:42] Speaker 02: So the playback device, again, I'm not saying the claim has to include that level of detail, but the benefit is the playback device knows immediately what portion of the frame is encrypted so it can immediately decrypt it. [00:16:55] Speaker 02: So clearly there's a benefit, and clearly the board's finding it. [00:16:58] Speaker 02: Where does this say there's a benefit? [00:17:00] Speaker 02: It says it's done. [00:17:01] Speaker 02: Where does it say it's a benefit? [00:17:03] Speaker 02: So just focusing on the same thing I just read, Your Honor, I think it's implicit in the words specialized and enhancement. [00:17:10] Speaker 02: And then it says facilitate retrieval. [00:17:12] Speaker 02: You're reading from where? [00:17:14] Speaker 02: Just column and line number. [00:17:15] Speaker 02: 1145 to 50. [00:17:17] Speaker 02: And this, by the way, Your Honors, was. [00:17:19] Speaker 02: 1145 to 50. [00:17:21] Speaker 02: Yes. [00:17:22] Speaker 02: And this, by the way, was relied upon by the board and also Dr. Nielsen. [00:17:26] Speaker 02: So implicit, Judge Dyke, in the words specialized and enhancement [00:17:32] Speaker 02: and then facilitate retrieval and decryption. [00:17:35] Speaker 02: I mean, it doesn't say it's a benefit, but I don't know how to read that any other way than that it's a benefit. [00:17:39] Speaker 03: What about the three words that begin the sentence, in many embodiments, doesn't that make clear that the invention, at least, can work without these enhancements? [00:17:52] Speaker 02: So let me answer it like this. [00:17:54] Speaker 02: If the limitation in question said locating encryption information that identifies the portions of the frame that are encrypted and stop there, [00:18:01] Speaker 02: then my argument would have no merit. [00:18:03] Speaker 02: Because then I would be adding something to the claim that's not there. [00:18:08] Speaker 02: I'd be asking you to add something from the embodiments that's not there. [00:18:12] Speaker 02: And all their criticisms would be sad. [00:18:15] Speaker 02: But the real question is, how would a PASIDA interpret that clause using the words that are there? [00:18:21] Speaker 02: How would they understand the relationship between locating encryption information and within the requested portion of the video? [00:18:26] Speaker 02: And there, I think, [00:18:28] Speaker 02: The PASIDA is going to look at where is that information everywhere. [00:18:32] Speaker 01: I'm not understanding what you're saying. [00:18:34] Speaker 01: The question was, this says in many embodiments it's a specialized Matruska container file, which suggests that in other embodiments it's not. [00:18:46] Speaker 02: I understand your question, Your Honor. [00:18:48] Speaker 02: And my point is that the question is, how do you parse that in terms of this limitation? [00:18:55] Speaker 02: And so what sort of embodiment are we talking about? [00:18:57] Speaker 02: The embodiment we're talking about is where you're locating encryption information within the requested portion. [00:19:04] Speaker 02: Because that's the only place, that's the only location for that type of encryption information that is ever identified. [00:19:12] Speaker 02: I heard my friend say something about it being located in the top level index file. [00:19:15] Speaker 02: There is no disclosure to that effect. [00:19:19] Speaker 03: Am I remembering right, and that just may be incorrect, that the 522, which I think is the grandparent, has maybe its claim one puts this information, and there may be an error in this, in an index file? [00:19:37] Speaker 02: I'm glad you asked, because that was actually the other thing I wanted to clarify. [00:19:41] Speaker 02: So there's a lot of confusion about, I want to make it clear, I'm not making an argument [00:19:47] Speaker 02: DRM information is something different from encryption information. [00:19:50] Speaker 02: It's one type. [00:19:52] Speaker 02: Well, the question is, how is it modified? [00:19:55] Speaker 02: So when claim one of our patents says, encryption information that identifies the encrypted portions of the frame, that is modifying encryption information. [00:20:04] Speaker 02: I don't think anyone disputes that. [00:20:07] Speaker 02: But that's not the type of DRM information we're talking about in claim one of the 522 patent. [00:20:12] Speaker 02: So if I may, this is on appendix 6328. [00:20:17] Speaker 02: There it says, a set of DR information that identifies protected portions of the alternative streams of protected video. [00:20:26] Speaker 02: So we see there's no mention about encrypted frames or partially encrypted frames or the location of what is encrypted in the frame. [00:20:33] Speaker 02: It's a different type of encryption information, DR information, whatever you want to call it. [00:20:39] Speaker 02: Now then I would like to look at claim 14 of the 522 pattern, which is on the next [00:20:45] Speaker 02: page, appendix 6329. [00:20:47] Speaker 02: And there we start talking about the type of encryption information that is at issue in claim one of the 588 pattern. [00:20:54] Speaker 02: And there it says, the Matroska container files includes a set of block group elements that each contain a DRM info element. [00:21:10] Speaker 02: Now note, that's not the same word as DRM information. [00:21:13] Speaker 02: a DRM info element and an encrypted frame of video where the DRM info element is part of the set of DRM innovation for each of the container files. [00:21:25] Speaker 02: And so then you go down and you parse the block group element to obtain a DRM info element indicating at least a portion of the encrypted frame of video. [00:21:35] Speaker 02: And so what this tells us, claim 14, is that the type of encryption information we're talking about in claim one of the 588 pattern, that [00:21:43] Speaker 02: Also in the 522 is located with the repulsive portion of the stream. [00:21:53] Speaker 02: And so I would just like to, and I agree, Judge Moore, that much of this is to know for review. [00:21:59] Speaker 02: So I'm not trying to re-litigate that. [00:22:00] Speaker 02: But nonetheless, this is a situation where one side addressed the claim construction issue. [00:22:06] Speaker 02: The other side had two declarations, never addressed it, did not. [00:22:10] Speaker 02: dispute our expert's opinions, did not challenge our expert when he said every embodiment that addresses where the location is is where he says this. [00:22:19] Speaker 02: In fact, in deposition, he agreed. [00:22:21] Speaker 03: If I remember right, it went on for six or seven pages in the deposition where, as I was inferring, the witness was trying to be very careful about how much was implied by the word embodiment. [00:22:38] Speaker 03: and eventually agreed, if what you mean by embodiment is something labeled as an embodiment and then elaborated with details, then you're right. [00:22:47] Speaker 03: But there are other language in the spec, he said, that indicates this can be done without this particular location. [00:22:58] Speaker 03: And you could call those embodiments, but if you don't want to call those embodiments, that's fine. [00:23:01] Speaker 03: But let's just be clear about what I'm saying. [00:23:04] Speaker 02: Let me say what I think the heart of the matter is, and I think everyone will disagree with, even though there's been some attempt to put it any way. [00:23:14] Speaker 02: But I think what everyone agrees is every time this type of encryption information, a location, is mentioned in our patent, it is always with the requested portion of video. [00:23:25] Speaker 02: And so they point to statements about embodiments, disembodiment. [00:23:28] Speaker 02: But the only time there's every location noted [00:23:32] Speaker 02: It's within the requested portion of the video. [00:23:34] Speaker 02: And I think a BASEDA reading that is not going to import something into the claim, because that's not what we're doing. [00:23:40] Speaker 02: It's going to look at the claim. [00:23:41] Speaker 03: But if the structure of the analysis is that the language of this claim element initially alone [00:23:53] Speaker 03: would naturally be read according to the usual very strong grammatical rule for a context where there are two possible modificands that the modifier is tied to the closer one, that that makes particular sense in the context of the claim language as a whole, given what M is saying. [00:24:16] Speaker 03: And then you look and you see, is there something in the spec that says, oh, don't go there? [00:24:23] Speaker 03: that the mere fact that each elaborated embodiment does have that feature with other indications that, in more general terms, that it need not, that feels like it's enough to leave the inference from the language where [00:24:49] Speaker 02: in Netflix's favor. [00:24:52] Speaker 02: So you made two points that I would like to address there, Your Honor. [00:24:56] Speaker 02: And I'll do them in the reverse order of how you stated them. [00:24:59] Speaker 02: The first, I think what you were essentially asking me was does limitation 1M, the claim as a whole, [00:25:08] Speaker 02: favor their interpretation. [00:25:10] Speaker 02: And I think the answer to that is no. [00:25:13] Speaker 02: So if you look at the limitation in question, it says locating encryption information that identifies the encrypted portions of the frame within the requested portion of the video. [00:25:23] Speaker 02: So they make an argument that, well, it could be for some different frames that aren't in the requested portion of the video. [00:25:31] Speaker 02: You can always practice a claim in some absurd fashion or some unreasonable fashion, but that doesn't really bear heavily upon how the claim should be interpreted. [00:25:40] Speaker 02: And the most reasonable way to practice this invention is that the encryption information identifies where the encrypted portions of the frames will, of course, be for the frames that are requested. [00:25:54] Speaker 03: And that's it. [00:25:54] Speaker 03: Can I ask you something about M? [00:25:58] Speaker 03: When it says, this is [00:26:00] Speaker 03: After you've located whatever you're going to locate, you then decrypted each encrypted portion of the frames of video identified within the located encryption information. [00:26:12] Speaker 03: That should say encrypted, should it not? [00:26:17] Speaker 03: You're not decrypting information within the encryption information. [00:26:23] Speaker 03: The encryption information is a sentence that says, here are the items that are encrypted. [00:26:31] Speaker 03: And that sentence had better not be encrypted, or the reader of it won't know what it says. [00:26:50] Speaker 02: I'm sorry. [00:26:51] Speaker 02: I may be missing the point. [00:26:55] Speaker 02: So I apologize if I am. [00:26:57] Speaker 02: The limitation seems to make sense to me insofar as it says you're decrypting each encrypted portion of the frames of video identified within the located encryption information using the set of common keys. [00:27:13] Speaker 02: And so that seems fully consistent with the limitation that came before it because you're [00:27:19] Speaker 02: finding the encrypted portions, then you're decrypting them with the located encryption information. [00:27:23] Speaker 02: So I'm probably missing. [00:27:25] Speaker 03: OK. [00:27:25] Speaker 02: Yeah, I'm sorry. [00:27:27] Speaker 02: I'm past my time, but just very briefly, I would like to, the other thing I wanted to take issue with. [00:27:33] Speaker 04: You have about 10 seconds. [00:27:35] Speaker 02: I won't. [00:27:35] Speaker 02: OK. [00:27:35] Speaker 02: So you said that this is a very strong presumption. [00:27:39] Speaker 02: We cited many, many decisions where it's not a very strong presumption at all. [00:27:43] Speaker 02: That's all I wanted to say. [00:27:44] Speaker 02: Thank you, Your Honor. [00:27:46] Speaker 04: Mr. Fleming? [00:27:56] Speaker 00: Thank you, Your Honor. [00:27:57] Speaker 00: I would begin, if I may, with this issue, which in Divick's briefs is the issue of quickly or readily finding the encryption information at argument it has become immediately, which Mr. Lowenstein said a couple of times. [00:28:09] Speaker 00: But he cited nothing for it except for column 11. [00:28:13] Speaker 00: And I think it's worth looking exactly at the language. [00:28:16] Speaker 00: This is on 110 of the appendix, column 11 beginning at line 45. [00:28:21] Speaker 00: It begins, in many embodiments, Judge Toronto, as you pointed out, the Matroska container files are specialized Matroska container files that include enhancements, i.e. [00:28:30] Speaker 00: elements that do not form part of the Matroska file format specification that facilitate retrieval and decryption using common cryptographic information of specific portions of media during adaptive bitrate streaming. [00:28:42] Speaker 00: So certainly the elements, the enhancements, [00:28:46] Speaker 00: can facilitate retrieval and decryption. [00:28:49] Speaker 00: But there's nothing in here suggesting that where the encryption information is located is of any concern whatsoever, and certainly not that it will affect the speed or the immediacy of retrieval or functioning of the process. [00:29:02] Speaker 00: If this was something special or essential or central, as the board put it, one would have expected someone to say it. [00:29:08] Speaker 00: If not in the specification, then in their expert report, in the board final written decision, or in the original claims for that matter. [00:29:14] Speaker 00: But this was not something that was even in the original claims. [00:29:17] Speaker 00: It was added through examiner amendment. [00:29:19] Speaker 00: With respect to the embodiments, I didn't hear Mr. Lowenstein address the three that we rely on in columns 3, 5, and 7, which specifically do mention the encryption information. [00:29:29] Speaker 00: They specifically do mention a location for it, and it is not within the requested portions of the selected stream. [00:29:35] Speaker 00: It's simply within the alternative streams, not within the requested portions. [00:29:39] Speaker 00: That is not something that those embodiments suggest is in any way important. [00:29:44] Speaker 00: I hope it's clear that this is de novo review. [00:29:46] Speaker 00: Mr. Lowenstein cited the Knowles case that Knowles simply cites to Teva for the proposition that when you're citing a scientific or a technical treatise that shows a technical meaning in the art, and there's a finding about that, [00:29:58] Speaker 00: then that is something that can be reviewed for substantial evidence. [00:30:01] Speaker 00: There's nothing like that here. [00:30:02] Speaker 00: No one is suggesting that the word within somehow has a technical meaning in this art any differently from how we would use it using the ordinary rules of English grammar read in light of the specification. [00:30:13] Speaker 03: Can you address my confusion about whether there's a language problem with element M? [00:30:22] Speaker 00: Yes, Your Honor. [00:30:24] Speaker 00: As I, and again, this isn't something on which anyone has engaged. [00:30:28] Speaker 03: But as I understand... But this encryption versus encrypted is actually they're twice the board misuses one for the other, twice in the same paragraph their expert misuses one for the other. [00:30:40] Speaker 03: So I guess I'd like to understand whether this is another example. [00:30:44] Speaker 00: So it's not the best drafted limitation. [00:30:47] Speaker 00: As I have always understood what's going on in limitation M, as in Michael, is that the encryption information identifies the encrypted portions of the frames of video. [00:30:59] Speaker 03: What I was thinking is that either you change encryption to encrypted, but leave the within, or you change within to by. [00:31:07] Speaker 00: I think that would be better, certainly. [00:31:10] Speaker 00: But I think that's what they meant. [00:31:11] Speaker 00: I think they meant to say located, identified by. [00:31:15] Speaker 00: I think what this also shows, you know, to the extent DIVX is still arguing that there's some kind of natural relationship between located and within, which again is something they don't have any evidence for, it's attorney argument. [00:31:26] Speaker 00: This limitation shows there's an equally natural relationship between identified and within. [00:31:31] Speaker 00: And there's nothing unnatural about saying I'm going to identify something within something else. [00:31:35] Speaker 00: which is what our reading of limitation L does. [00:31:37] Speaker 00: By way of conclusion, I think the public has a right to rely on what they wrote in their claim. [00:31:43] Speaker 00: They could have amended it in prosecution, they could have amended it in the IPR under 316D. [00:31:49] Speaker 00: Having not done so, the claim should be construed as it is written, not as they now wish they had written it, in light of the ordinary rules of English grammar and in light of the context that's set forward in the claim, without limitation through the specification. [00:32:02] Speaker 00: So unless the court has further questions, we'd respectfully submit that the construction should be reversed. [00:32:08] Speaker 00: The court should direct that limitation L is disclosed by the prior art and direct that on remand, the board decide all further outstanding issues in this case. [00:32:17] Speaker 00: I thank the court for its attention. [00:32:19] Speaker 04: Thank both counsel. [00:32:20] Speaker 04: This case is taken under submission.