FREE STREAM MEDIA CORP. v. ALPHONSO INC.
Oral Argument — 09/02/2020 · Case 19-1506 · 63:06
0:01
Clerk
The United States Court of Appeals for the Federal Circuit is now open and in session.
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God save the United States and this Honorable Court.
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Judge Dyk
Okay, our first case this morning is number 19-1506,
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Freestream Media Corporation v. Alfonso, Inc.
0:19
Before we begin, I'd just like to alert counsel that the panel has some concern
0:27
about the amount of material that's marked as confidential.
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And we are going to be asking questions about the relationship with Vizio.
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My understanding is that what's marked as confidential are the various fields that are processed.
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And I don't think our questioning will get into that area.
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But if we ask a question that intrudes into confidentiality,
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confidential material, we expect counsel to advise us of that,
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and then we'll figure out how to proceed at that point.
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Do counsel have any questions about that?
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And do my colleagues have any questions?
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Hearing none, why don't you begin, Mr. Powers?
1:22
Appellant Attorney (Indra Neel Chatterjee)
Thank you, Your Honor.
1:23
May it please the Court.
1:24
I'd like to begin with the Akamai issues raised by the Vizio contract that Your Honor just alluded to.
1:30
The District Court committed three errors in granting summary judgment on the Akamai analysis.
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Two of them legal, one of them factual.
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Two legal errors were first in treating claims 10, 13, and 18 similarly to claim one.
1:47
Claim one certainly does have a television-generating fingerprint data,
1:50
and therefore the Akamai issue is live there.
1:53
However, claims 10, 13, and 18 are not structured the same way,
1:58
and the only presence of a television is that it is part of the environment
2:02
in which the Alfonso server operates and is merely communicatively coupled.
2:06
There is no...
2:08
Mr. Powers?
2:09
Judge Hughes
Sorry, Mr. Powers, can I just interrupt you since you mentioned that?
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This is Judge Hughes.
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What does communicatively coupled mean in your view?
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Appellant Attorney (Indra Neel Chatterjee)
It means that you can access data from it directly or indirectly,
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and there were claim constructions below about that question,
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and there's no debate, I think, among the parties that the information...
2:32
What does indirectly access data mean?
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So, for example, the Vizio television,
2:39
the instant data would be uploaded to the cloud,
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and Alfonso would access it from the cloud.
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There's just an intermediary server which is accessing the information and holding it.
2:51
Judge Hughes
Do you agree that Alfonso doesn't access data directly from Vizio TVs
2:57
that were relying on your indirect prong here?
3:01
Yes, that's correct.
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So, your definition of indirect seems pretty broad.
3:07
Would that encompass...
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At Vizio, and I know this is old,
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nobody would do it like this anymore,
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but if Vizio put a bunch of data on a huge hard drive
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and sent it to Alfonso,
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and then Alfonso hooked that up to that system,
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would that be indirectly accessing data from Vizio TVs?
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Would they be communicatively coupled with those TVs
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merely by downloading data to a hard drive,
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sending it through the mail,
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and then hooking it up to the Alfonso system?
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Appellant Attorney (Indra Neel Chatterjee)
I think that's a harder question
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than what the facts present.
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I think that's a harder question than what the facts present here
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because the facts present that the construction is, quote,
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connected in a manner that permits communication.
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And certainly there are cases in this court and many others
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which make clear that such communication need not be a direct wire
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connecting one device to another,
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that there are often intermediary devices,
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and that is considered to be...
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Judge Hughes
But it still has to be communication, right?
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It doesn't just have to be a one-way download of data.
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Appellant Attorney (Indra Neel Chatterjee)
Communically coupled doesn't necessarily require
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a talking back and forth.
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It just means that Alfonso can access the data from the TV communication,
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and it does so via communication with the servers in the cloud.
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Judge Hughes
Well, it seems to me that the hard drive hypothetical is the same thing.
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It's accessing the data through the hard drive via the mail.
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There seems to me a little difference in uploading data to the cloud
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on Vizio's own servers and putting it on a hard drive
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and sending it through the mail.
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Appellant Attorney (Indra Neel Chatterjee)
The only reason I said I think it's a little harder, Your Honor,
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is that the form of indirect communication that I'm referring to
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is quite common and is commonly understood to be a form of communication.
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You're communicating through an intermediary device on in the cloud,
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and that is...
5:09
Okay.
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Judge Hughes
Can I just ask one more question on this point,
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and then I'll let you move on,
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is how are you communicating with the TV?
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Aren't you just communicating with the partners
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in the cloud where Vizio uploaded this data,
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and that there's no active either direct or indirect coupling with the TVs themselves?
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Appellant Attorney (Indra Neel Chatterjee)
There is no direct coupling with the TV.
5:33
The TV couples to the cloud,
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and the Alfonso server couples to the cloud,
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and in that sense, that was communicatively coupled.
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I also don't believe that was the link below.
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It was argued below, though, right?
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It was argued below tangentially,
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but that's certainly...
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It's not the ruling or the basis for the ruling below
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as to claims 10, 13, and 18.
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Judge Dyk
What about the specification,
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which talks about an intermediary server
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as being part of this communicatively coupled thing?
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Appellant Attorney (Indra Neel Chatterjee)
That further supports the idea
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that that form of communicatively coupled is satisfied by the claims.
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Judge Reyna
Counselor, this is Judge Reina.
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I have a related question,
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and this goes to the communicatively coupled issue
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that my colleagues have brought up,
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but under claim 10,
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the coupling is between a television and a mobile device
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through a network, correct?
6:33
Appellant Attorney (Indra Neel Chatterjee)
Under claim 10,
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the server is communicatively coupled
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with a television and a mobile device.
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Not coupling the television and the mobile device.
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Judge Reyna
This record aired because claims 10
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do not require the use of a mobile device.
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Appellant Attorney (Indra Neel Chatterjee)
True.
6:59
That's a billion...
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Judge Reyna
Okay.
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Is it your position that the mobile device itself,
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it's not claimed.
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It's not part of this patent.
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Anything dealing with a mobile device,
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including its use,
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that's not part of the patent, correct?
7:16
Appellant Attorney (Indra Neel Chatterjee)
So that's not quite our position, Your Honor.
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It's certainly in the claim,
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but it's different in the sense that
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it's not part of the system that is being claimed.
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It's in the preamble, of course,
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but it is not something that would be required
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to be controlled under Akamai or used under Centillia.
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It's merely...
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So that would be like...
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The cross-medical case
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where you had a part of bone that was connected
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and they didn't require control over that
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under Akamai, for example.
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So there is a difference between claim 1 and claim 10
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in both the TV and the phone, for sure.
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Judge Reyna
Okay.
7:55
So then in claim 1,
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it talks to the relevancy-matched server
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through a sandbox application
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that's connected to the telephone.
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And I'm intrigued by this whole notion
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of a sandbox application.
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That's related to the phone only.
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Is that correct?
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Appellant Attorney (Indra Neel Chatterjee)
That's part of the phone's operating system,
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how it protects the phone from being disrupted
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or hacked or other things.
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Yes, that's part of the phone.
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Judge Reyna
And you're claiming that?
8:28
Appellant Attorney (Indra Neel Chatterjee)
No.
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We're claiming where it works.
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The problem claiming is that we have found a way
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to this application so that you can place
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a targeted ad on the phone.
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Judge Reyna
Are you claiming the way
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that you found to pierce that problem?
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Appellant Attorney (Indra Neel Chatterjee)
Yes, that's through the embedded object
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that the relevancy-matching server creates
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as part of the whole process of claim 1.
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Judge Dyk
Could we turn to claim 1,
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which does seem to be different from 10, 13, and 18
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in that it requires a television?
9:05
Appellant Attorney (Indra Neel Chatterjee)
Yes, we don't dispute that.
9:09
Judge Dyk
I'm not understanding
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how merely purchasing data from Visio
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can...
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can...
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amount to
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using the television
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as part of the system.
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Appellant Attorney (Indra Neel Chatterjee)
Understood, Your Honor.
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There's two errors on that issue.
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First, a legal error about what is required
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under Akamai for direction and control.
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And a second, a factual error
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based on the facts of the contract
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between Alfonso and Visio
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by which Alfonso directed Visio
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to do certain things.
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The legal error committed by the district court
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was to require specifically
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that the contract say,
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you must practice...
9:48
you must give us these results
9:49
according to the method steps of the claim.
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That's the how
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that the district court required
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on Appendix 10 and 17.
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That, of course, is inconsistent
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with the general principle
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that you can't escape liability
10:00
merely by contracting it out.
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But it's also very inconsistent
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with this court's decision
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in Mankus v. Vivid Seats,
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822 F. 3rd at 1302 at 1310,
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where the district court
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ruled exactly the same way
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the court did here,
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finding that the contract
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didn't specify the particular claim steps
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and held that Akamai makes clear
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it does not suffice to conclude
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that the local viewers
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are not required to take
10:26
the claim steps they perform.
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There's no dispute that the Visio TVs
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do perform the claim steps.
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The only issue for the ruling below
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was that the court felt
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that there wasn't sufficiently clear evidence
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that Visio was required by Alfonso
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to perform specifically those steps.
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The Mankus case says
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that's not the right test.
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If it were,
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the factual dispute
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by the actual contract
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that Alfonso has with Visio,
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that contract at Appendix 2230 and 31
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and then Appendix 2,
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Attachment 2 at 2237,
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has two things that make clear
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there's a specific factual dispute
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about whether Alfonso's contract
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with Visio required it
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to generate fingerprint data,
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which is all that's required in the claim.
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The first is that
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the contract requires at 2230
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that the audiovisual content on the TV
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be identified, quote,
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without the aid of metadata.
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Without the aid of metadata.
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That is what generating fingerprint data is.
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That's precisely the definition of it.
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And that was proven by us
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at Appendix 3056, 1864, 65, and 2237.
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That is the essence
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of what fingerprint data is,
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is doing it without metadata.
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I.e., you're recognizing
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the content itself by the content.
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But second,
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the Attachment 2 specifies
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both the manner and frequency
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by which Alfonso insisted
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that Visio generated data.
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That is where I think
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your Honor's concern
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about confidentiality arises.
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I'll just note that at a high level,
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the content recognition fields there
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are exactly what fingerprint data are.
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And there's no dispute
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that that's what did generate
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fingerprint data, again,
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and that is all that's required by the claims.
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The question of the level of direction
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and control is a question of fact.
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Those are specific facts
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from which a jury easily could have confirmed
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that that direction and control was present
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based on the contractual requirements.
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And that should have gone to the jury
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for factual resolution.
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Judge Hughes
Mr. Powers, this is Judge Hughes again.
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I know you're now into your rebuttal,
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but I just wanted to touch briefly
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on the sling portion of this case.
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Because even if we disagree
12:53
with your views about the Visio TVs
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and conclude that they're not
12:58
communicatively coupled or under claim one,
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they're not sufficient to provide the TV,
13:02
that ground doesn't apply to sling, right?
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Judge Dyk
True.
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Judge Hughes
Okay.
13:07
So what was the basis
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for the district court summary judgment on sling?
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Was it the no telephone,
13:14
no mobile device,
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and no computer relevancy matching?
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Appellant Attorney (Indra Neel Chatterjee)
Not as to that.
13:23
Sling is just the source of the data.
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So you're right about the mobile phone ground would apply.
13:28
That's the centillion issue that I was hoping to get to.
13:31
Judge Hughes
But what about the relevancy matching?
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Does that apply to all three?
13:37
That's the data and how Alfonso uses it.
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And this is very complicated
13:45
and a little confusing about some of the grounds
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the district court relied on or not.
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But my understanding is that Alfonso's
13:52
view is in both the Visio and the sling factors,
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it doesn't do, its computer doesn't do relevancy matching
14:02
because it's its actual human employees
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that take the data and match the segments
14:08
with the IP addresses.
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And that's not done by a computer,
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which is what I think your claims require the computer
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to do that matching, relevancy matching, right?
14:20
You're exactly right, Your Honor.
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Appellant Attorney (Indra Neel Chatterjee)
Okay. You're exactly right about what they're saying.
14:23
I don't know what their argument is about what the ruling below was
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with regard to the human interactivity
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with the relevancy matching.
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And I very much, I realize I'm in my rebuttal time,
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I would very much like to address both the centillion issue briefly
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and this human interaction issue
14:40
on the relevancy matching server as well.
14:43
Okay. Well, I'd like to do that,
14:44
Judge Dyk
but I'm confused about this discussion
14:47
because I looked at footnote one in the red brief on page three,
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and it says that sling isn't an issue on appeal.
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Do you have a different view of that?
15:00
Appellant Attorney (Indra Neel Chatterjee)
So sling is not an issue on appeal
15:03
as far as the Visio data acquisition argument goes.
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Alfonso did make an argument that even as to where the data came
15:12
from the sling application, that in the beeswax,
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they still have their human activity.
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Judge Hughes
And you're still saying that the summary judgment
15:41
as to the human activity,
15:42
as to non-imprintment on the sling was incorrect, aren't you?
15:47
Appellant Attorney (Indra Neel Chatterjee)
Absolutely.
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So after that one, the judge stopped me once.
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Sorry, go ahead.
15:56
Yes, because we believe the district court
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got the other two grounds wrong,
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i.e. it is the beeswax server,
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which is the relevancy matching server,
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which does the matching at 50,000 times per second.
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Obviously, no human being is doing that.
16:13
And as to the sling,
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as to the centillion argument,
16:17
that relevancy matching server is exactly what Alfonso
16:20
was putting into service and benefiting from,
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which is what centillion requires.
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Judge Dyk
Okay, so why don't you go on and address the other two points.
16:31
Thank you.
16:31
The centillion argument, and I forget what the other one was.
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Appellant Attorney (Indra Neel Chatterjee)
Thank you, Your Honor.
16:36
With regard to centillion, there's, again,
16:40
a distinction between claims 1 and claims 10, 13, and 18.
16:46
Because...
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Judge Dyk
Centillion has nothing to do with...
16:48
Appellant Attorney (Indra Neel Chatterjee)
It should not, but it was relied upon by the district court to do so.
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But centillion does not apply to 10, 13, or 18,
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but does legitimately apply to claim 1.
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And so that is one error by the district court
17:03
with regard to its centillion analysis.
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The primary issue, obviously, on centillion
17:10
is who is putting the system into place
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and benefiting from it.
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And the mistake that the district court made
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was in believing...
17:21
was in believing that the phone,
17:22
which, obviously, Alfonso does not have the phone
17:26
and use the phone to request the ad,
17:29
but was in focusing the lens of the centillion analysis on that end.
17:34
If you look at the claim, the phone is a minor part of it,
17:38
and the rest, the whole claim,
17:39
is about what Alfonso does put into service,
17:41
what it does control,
17:43
and certainly what it benefits from,
17:45
which is a primary issue under centillion.
17:47
And so the phone merely requesting the information
17:51
and putting into motion the entire Alfonso apparatus
17:56
is similar to the shopping website cases
18:02
where, yes, a third-party human computer
18:05
has to log into that website,
18:08
but the whole website is being done
18:10
for the benefit of the owner of the website.
18:13
Just as here, Alfonso's relevancy-matching server
18:17
is all put into effect and benefited
18:21
from by it.
18:22
So that was the mistake it made on centillion.
18:26
Judge Dyk
Okay, what about this issue
18:30
about the human designation
18:35
of the data that's the subject of interest?
18:39
Yes, thank you, Your Honor.
18:40
And that's not covered by the claim.
18:43
Appellant Attorney (Indra Neel Chatterjee)
Yes, Your Honor.
18:44
So on this one, it is certainly true,
18:48
as it is true in all computers,
18:52
that humans program the computer,
18:55
they load the data that the computer is going to use,
19:00
and in this context,
19:01
they would load the ads that are going to be served,
19:04
for example, those of IP addresses
19:09
that watched a particular show.
19:12
But that's not the question for the court.
19:16
The question for the court is,
19:18
who is doing the matching at 50,000 times per second
19:22
when all those ad requests come in
19:24
and you have to decide
19:25
who gets the ad and who doesn't?
19:27
The thing that is doing that matching,
19:30
i.e., taking the IP addresses
19:32
and linking them up to the ads to be served
19:35
at 50,000 times per second,
19:36
that is the beeswax server computer,
19:39
not a human being.
19:40
Look, let me...
19:41
Sorry, this is Judge Hughes.
19:42
Judge Hughes
Let me interrupt,
19:43
because this is where I'm very unclear
19:45
about the party's position
19:47
to whether there's a factual dispute.
19:49
I thought that the beeswax system
19:52
already had uploaded the message,
19:55
matched IP addresses
19:57
and the segments or the targeted ads.
20:02
Like, before it gets uploaded to beeswax,
20:06
you have a list of IP addresses
20:08
that are already matched
20:11
to certain either ads or segments.
20:15
I'm unclear on this,
20:17
but let's say that it's the ads,
20:21
and then all that has to happen in beeswax
20:24
is...
20:26
certain IP addresses,
20:27
and it goes into that computer
20:32
and matches the IP address,
20:33
but the ad is already matched.
20:36
Am I mistaken about how beeswax occurs?
20:38
And if I'm not,
20:39
why does that satisfy the matching limitation
20:42
if the matching is done previously
20:45
by Alphonse employees
20:47
of actually uploading a list of IP addresses
20:51
and identifying them with certain segments?
20:55
Appellant Attorney (Indra Neel Chatterjee)
Your Honor, so you are absolutely correct
20:59
that...
21:01
that beeswax has uploaded to it
21:04
prior to being pinged by a phone
21:06
a list of IP addresses.
21:09
Let's take an example.
21:10
Let's say that the campaign is that
21:12
Chevy wants to serve a Chevy ad
21:14
to everybody who watched a Ford ad.
21:17
Let's take that as the example.
21:19
So beeswax will have loaded up to it
21:21
thousands and thousands of IP addresses
21:24
of people who watched Ford ads.
21:27
And beeswax will have uploaded to it
21:30
the Chevy ad that Chevy wants to serve
21:34
to those IP addresses.
21:37
But the matching hasn't occurred yet.
21:40
The matching occurs when
21:43
one of those IP addresses
21:44
that happened to have been on the list
21:46
of ones that watched the Ford ad
21:48
pings the server.
21:50
That server then looks to see
21:52
if that IP address matches anything
21:54
in its database.
21:55
If so, yes.
21:57
Then it bids on the ad.
21:58
If it wins the bid on the ad,
22:01
then it matches the ad to that IP address
22:04
and sends the ad to that IP address.
22:06
So that's...
22:07
That is where the matching occurs.
22:08
And that's...
22:10
The matching...
22:11
Sorry.
22:13
Judge Hughes
But the matching between the IP address
22:15
and the Ford viewing
22:16
is already done
22:18
when it's uploaded to beeswax.
22:22
So they've already matched...
22:24
The data is already matched.
22:26
Here are the IP addresses
22:27
that have watched Ford.
22:30
Appellant Attorney (Indra Neel Chatterjee)
That is true.
22:31
Judge Hughes
That is absolutely true.
22:32
And it's also already uploaded.
22:34
So all that beeswax is matching
22:38
really is an IP address.
22:39
Appellant Attorney (Indra Neel Chatterjee)
And that is the primary data
22:42
which is required to be matched in the claim.
22:44
It's matching the primary data,
22:47
which is the IP address,
22:48
which comes in.
22:50
And that's the whole structure of the claim.
22:53
That's how it works,
22:54
is that you're matching...
22:56
You're trying to deliver it to that IP address
22:58
right at...
22:59
Judge Hughes
So you're saying the matching
23:01
doesn't have to be between the IP address
23:04
and the viewing under your claim.
23:07
It just has to be to the IP address
23:09
even if it's not the IP address.
23:11
If that has already been pre-associated...
23:13
And let's just assume that was done
23:15
through human means, not computer means.
23:19
You know, make the hypothetical even clearer.
23:21
There was no computer involved in the matching.
23:23
Vizio got a list of,
23:25
here are 10,000 IP addresses
23:27
that watched a Ford commercial,
23:31
and they enter it into the database one by one.
23:34
I mean, clearly that's not going to happen,
23:36
but let's just assume.
23:37
And then they've done...
23:39
The human has done the matching
23:40
between the IP address,
23:41
the IP address,
23:42
and the Ford viewing.
23:43
And so all Beeswax does
23:45
is match an IP address.
23:47
You say that satisfies the claim
23:48
for relevancy matching?
23:49
I thought relevancy matching
23:51
required that connection
23:53
between IP address and viewing,
23:56
not just matching an IP address.
23:58
Appellant Attorney (Indra Neel Chatterjee)
So you're actually asking
23:59
a slightly different question.
24:00
You're right that there are two questions.
24:04
One is, what is the matching?
24:06
But the second,
24:09
do you use a relevancy matching factor?
24:16
The claim does...
24:17
It does not require
24:18
that the relevancy factor...
24:25
Judge Dyk
That's the matching between
24:26
the idea of matching the Chevy
24:29
with a Ford viewing, right?
24:32
Appellant Attorney (Indra Neel Chatterjee)
Yes, the relevancy factor could be
24:33
that I want to show a Chevy ad
24:36
to Ford view as part of the campaign ID.
24:42
So there's no question
24:43
it was a mistake the district court made
24:47
in saying that relevancy factor
24:50
had to have been made
24:52
on the fly by the computer.
24:54
The claim doesn't say that.
24:56
The claim merely says
24:57
that the computer uses the relevancy factor.
24:59
Which it undeniably does
25:01
because there's a campaign ID
25:02
that says show Chevy commercials
25:06
to the group of people who watch Ford.
25:08
That's relevancy.
25:10
But the matching is between
25:11
the primary data,
25:13
which is the IP address,
25:15
and the ad.
25:17
And that's exactly what
25:19
the Beeswax computer does.
25:22
Because that has to happen
25:24
very fast in real time.
25:27
Because an individual IP address comes in,
25:29
the fact that it was on a list
25:30
of thousands doesn't mean
25:32
that that was matched.
25:33
That's just a list of the database.
25:34
The match occurs
25:36
when one of those IP addresses
25:38
comes in on 1 50th of a second
25:41
and is matched with the ad
25:44
and gets the ad quickly.
25:45
That's the matching step.
25:47
So it's the relevancy factor
25:48
and the matching are two different things.
25:51
The matching has to occur by the computer.
25:53
No question it does.
25:54
The relevancy factor has to be used
25:56
by the computer,
25:57
but not created by it.
26:00
Judge Dyk
All right.
26:01
Well, unless my colleagues
26:02
have further questions,
26:03
I think we're about out of time.
26:06
Uh, Mr. Powers will restore
26:08
your four minutes for rebuttal
26:10
and we'll hear from Mr. Chatterjee.
26:13
Appellant Attorney (Indra Neel Chatterjee)
Thank you, Your Honor.
26:14
Clerk
Your Honor, this is, uh,
26:27
Mr. Chatterjee.
26:27
May I proceed?
26:28
Yes.
26:29
Appellee Attorney (Matthew D. Powers)
Okay.
26:30
Clerk
Thank you, Your Honor.
26:31
Uh, may I please the court?
26:32
Uh, this is Neil Chatterjee and I,
26:33
I represent, uh, Alfonzo in this case.
26:37
Uh, if I may, I'd like to start with,
26:40
um, I believe I, I don't have all
26:42
the voices down, but I believe it was
26:43
Judge Hughes' question.
26:44
Uh, followed by, by several of the
26:47
other judges about the construction
26:49
of the term communicatively coupled.
26:51
Uh, the definition of communicatively
26:53
coupled is in the appendix on page 34.
26:57
And the agreed upon construction is
26:59
connected in a way that permits
27:01
communication.
27:03
If you look at the relevant claims here
27:05
that, that talk about that particular
27:08
term, what, what the construction applies
27:11
to is that there's a communicative coupling
27:15
between a television and a mobile device.
27:18
And I think, uh, Your Honor's hit the nail
27:20
on the head when you asked the question
27:22
of if I were just to give a hard drive
27:25
that had a bunch of data from Vizio that
27:27
was mailed to somebody else, um, would
27:30
that satisfy, uh, the communicative coupling?
27:33
And the answer is, is that it doesn't.
27:35
Um, and here it's no different.
27:37
All they've done, uh, is that Vizio's
27:39
done is they've downloaded a bunch of
27:40
information onto an online storage repository, which is a virtual storage repository.
27:45
It's a virtual hard drive, and then our client, uh, Alfonso pays them to download whatever data is available.
27:53
Judge Dyk
Okay.
27:53
But the problem with that, it seems to me is that if you read the specification, the specification itself appears to contemplate that the use of that intermediary server, uh, is within the claims.
28:10
Clerk
But that, that's correct, Your Honor.
28:12
Although there's one material difference between what is.
28:15
In figure seven of the patent and our case, because in, in, in the Alfonso case, there is a human being that interrupts that communication between the intermediate server and the, and the smartphone or the mobile device.
28:31
So there is no connection that works from that intermediate server that goes directly to a smartphone.
28:38
Judge Dyk
There is no, how does the human intervene?
28:43
Clerk
What the human does is that the information.
28:46
Is downloaded, uh, to the Alfonso environment and Alfonso person.
28:52
And this is outlined in, uh, Dakota J, uh, uh, uh, declaration that's in the appendix.
28:58
And then that human being fills out a series of forms.
29:03
One is called the campaign segment tool.
29:05
They then upload it to a, a different environment and they, which is beeswax and, and they basically.
29:15
Offer up the.
29:16
The ability to, uh, to place an ad beeswax is essentially an, an eBay for advertising.
29:25
They take a number of bids from a number of different people and whoever is willing to pay the highest amount beeswax decides whether or not the ad is delivered to the mobile device.
29:35
But the interruption is in the middle because there's a human being that, that downloads the data that puts it into a form.
29:45
And then.
29:45
And that form is then uploaded to this other environment called the DSP and, and the specific DSP is called beeswax in order to compete for that.
29:55
Judge Dyk
Is, is the human being doing anything more than identifying what the campaign is?
30:01
In other words, that we're trying to match, um, forward, uh, viewers with Chevy ads.
30:10
Clerk
So yes, your honor, they, what, what the company does.
30:15
And, and again, this is outlined.
30:16
They fill out a form.
30:18
So they might say, uh, I want, I want to see, uh, everybody who has looked at, uh, a Chevy ad and, and we'll download, um, that data we'll, we'll fill out a form based upon the criteria that it identifies based upon their, their human activity.
30:36
And there can be many different criteria.
30:39
And then when that form is filled out, they then have customers that will want to place ads that might meet those criteria.
30:46
And then when that form is filled out, they then have customers that will want to place ads that might meet those criteria.
30:47
But all of the relevancy matching to the extent there is any is being done by a human being at Alfonso.
30:53
Judge Dyk
But I'm not sure that I understand that answer.
30:56
What is it that the human is doing other than determining what the campaign is?
31:04
Clerk
That, that, that is what the human being is doing.
31:07
And then the second thing that the human being is doing is they're physically entering the data to place a bid for advertising on the beeswax system.
31:18
Judge Dyk
Basically entering the data, what does that mean?
31:21
Clerk
So they will say, for example, I want to place an ad for Ford,
31:29
and this is what Ford is willing to pay for that ad.
31:33
And they say that to Beeswax, the Beeswax system.
31:37
And the Beeswax system will then have essentially an auction of many different companies
31:44
that are all competing to deliver an ad to a mobile phone,
31:49
and Beeswax will decide which ad is the winner based upon who is paying the most.
31:55
Judge Hughes
This is Judge Hughes.
31:56
Can I ask a question?
31:58
And let me preface this thing.
32:00
It seems like there's two forms of matching here.
32:03
There's a matching between viewership and an IP address,
32:09
and then there's a matching between a specific ad campaign
32:14
and people.
32:15
People that fall into the category of viewership that they want.
32:18
Is that correct?
32:19
There's two different forms of matching.
32:22
Clerk
That's right.
32:23
Yes, Your Honor.
32:24
And they're done by two different systems.
32:28
Judge Hughes
Well, and what is relevancy matching?
32:32
Is it associating an IP address with particular TV viewing,
32:38
or is it associating the IP address that falls in that category with a targeted ad campaign?
32:46
Judge Dyk
The IP.
32:47
Judge Hughes
I understand your position.
32:48
Sorry, let me just play this out so you're clear what I'm getting at.
32:52
I understand you to be saying that the Alfonso employees do the first matching,
32:57
i.e., they query the database to see who watched the Ford ad.
33:06
And so that matching is done by an Alfonso employee.
33:10
Is that correct?
33:11
That is correct, Your Honor.
33:13
Now, who does the matching between once you have –
33:16
here are –
33:17
the 10,000 IP addresses associated with people who watched Ford ads in the last month.
33:24
Who then does the matching between those IP addresses and the Chevy ad
33:32
when Chevy says, I want to send that Chevy ad to all those people?
33:37
Clerk
That is also a human being at Alfonso when they're uploading to the Beeswax system, Your Honor.
33:42
So the Beeswax –
33:44
Judge Hughes
When all the information is uploaded,
33:47
the Beeswax, the matching is already done with the particular ads.
33:54
That's correct, Your Honor.
33:55
So Beeswax knows these 10,000 people watched Ford,
34:00
and Chevy wants to send them an ad if they meet the right price.
34:05
So all the matching is done beforehand,
34:09
and all the matching that Beeswax does is matching just an IP address.
34:16
Clerk
That's correct, Your Honor.
34:17
It's actually even less.
34:19
It's simpler than that.
34:21
Essentially, what the Alfonso user does is they fill out this campaign segment tool
34:27
that says, here's everyone that watched a Chevy ad,
34:30
and they upload that data to the Beeswax system.
34:34
When the Alfonso person puts in an ad request,
34:38
they fill out a separate form,
34:39
and it says for all of the Ford ads,
34:43
go pull the IP addresses from that other record.
34:47
That's all it does is it has a pointer,
34:49
to that other record and say, go pull those IP addresses if we're the winning bid.
34:53
All the matching, though, is done.
34:55
The only thing that is in the advertisement request that a user
34:59
or a human being at Alfonso fills out is a pointer to this other record.
35:04
There is no relative matching.
35:06
Judge Hughes
That's correct.
35:06
And does this ground for non-infringement apply to all of the claims at issue here?
35:12
Yes, Your Honor.
35:14
Okay.
35:18
Clerk
Your Honor, just to kind of address,
35:22
a couple of the points that we discussed.
35:24
That is where this case should start and end in our view,
35:28
is the human matching that occurs.
35:31
There was not really a dispute at all about the facts here,
35:35
and it was all outlined in detail in the Coda J declaration,
35:39
which can be, I'm sorry, the Chordia Declaration,
35:44
which can be found at pages 1510 to 1513 of the appendix.
35:50
I do want to touch.
35:52
I want to touch upon a couple other issues that the Centellian
35:56
and Akamai cases really don't have any application here.
36:00
We disagree with Mr. Powers on that.
36:03
Even to claim one?
36:05
Even to claim one, Your Honor.
36:08
And the reason it doesn't apply to claim one is because what is claimed
36:13
in the claim itself is two things.
36:17
One of the things it requires is that there is a television
36:20
to generate fingerprint data.
36:22
Just as an example.
36:24
And in claim one, all we do is we buy data from Vizio.
36:29
And the contracts are very clear that Vizio decides whatever they want
36:34
to collect from wherever they want to collect it.
36:36
And the only thing that we do is we specify the format
36:39
in which data is delivered to us.
36:43
And that has, that is entirely independent.
36:46
We do not control the TVs.
36:48
We don't direct how they collect the data.
36:50
We don't direct who they collect it from.
36:52
We don't set a time.
36:53
For when they have to collect it.
36:55
We just buy the data in bulk and we ask them to format it in a particular way.
37:00
Judge Dyk
Okay. But Mr. Powers is saying that the fact that you don't control the detail is irrelevant.
37:07
If you have a contract with them and pursuant to the contract, they do it in a way
37:13
that would be within the claims that that's sufficient.
37:16
Even if the contract doesn't require them to do it in that way.
37:20
Clerk
Yes. I understand that's Mr. Powers' argument, Your Honor.
37:23
I don't.
37:24
I don't read Akamai as going that far, because if that were the case, any commercial transaction
37:32
with anybody where you're simply buying something in a grocery store that you would,
37:36
you would then be infringing for all of the manufacturing process
37:39
that went into creating a product, that could not be the reading of Akamai.
37:46
Judge Dyk
But he suggests, and I'm not familiar with this case,
37:49
and I may have the name wrong, a manhouse case or something like that.
37:53
Minkus.
37:53
I thought.
37:54
Minkus.
37:54
Adopts his position.
37:56
Clerk
We, we, we don't, we don't agree that Minkus adopts that broad a position, Your Honor.
38:02
If, if, if you, if you go back and you look at the Akamai case, what Akamai says is we conclude
38:07
on the facts of this case that liability under Section 271A can be found
38:13
when an alleged infringer conditions participation in an activity or receipt of a benefit
38:18
upon performance of a step or steps of a patented method and establishes,
38:24
the manner or timing of that performance.
38:27
Neither Minkus nor Akamai says.
38:30
Is Minkus opposed to Akamai?
38:33
It is.
38:33
It's interpreting Akamai, Your Honor.
38:37
And if, if what we were, and Your Honor, I'm out of time.
38:41
May I, may I continue?
38:42
Judge Dyk
Don't, don't worry about it.
38:43
I'll, I'll, I'll tell you to stop when we're ready to have you stop.
38:47
Clerk
Yeah.
38:48
Thank you, Your Honor.
38:48
The, the, the one of, the point I make here is what both Minkus and Akamai stand for is
38:55
if Alfonso were to say, we want you to collect data from televisions in Northern California
39:04
between the hours of 4 p.m. and 9 p.m.
39:08
And we want you to deliver that data to us.
39:10
We would have a much closer case as to whether that would satisfy the Akamai standard or not.
39:15
But that isn't what happens here.
39:17
And the, the agreement specifically.
39:19
The agreement specifically disclaims any responsibility or any obligations by Vizio to collect data
39:25
from a TV in any particular manner.
39:28
Judge Reyna
Counselor, who controls the, who controls the
39:31
which Alfonso gathers the data?
39:35
Clerk
I'm, I'm, I'm sorry.
39:36
I couldn't hear you, Your Honor.
39:38
Judge Reyna
I understand that Alfonso downloads the Vizio data from, from the cloud, correct?
39:45
Correct.
39:46
And, and who controls that site, the, the cloud?
39:49
Clerk
Oh, the, the, yes, Your Honor.
39:55
What, what, what, what I understand happens is, is that Vizio controls the, the, the platform
40:03
where the data is stored.
40:04
And then Alfonso has the ability to connect into that platform through an API and downloads
40:12
the information.
40:13
And Vizio preformats it so it's in a, in a language that Alfonso can understand.
40:20
Judge Reyna
Then nobody else can access that other than Alfonso, correct?
40:26
Clerk
We don't know, Your Honor.
40:28
We don't know who else Vizio makes that available, that data available to, or if they format it
40:32
in similar ways for other people.
40:34
Because that's entirely within Vizio's protocol.
40:37
Judge Reyna
Who informs Vizio how to, how to format the, the, the cloud so that it's accessible by
40:42
Alfonso?
40:44
Clerk
That is, that is Vizio dependent, Your Honor.
40:47
We just get the information from them and they tell us how to access it and download
40:52
it.
40:55
Judge Dyk
Okay.
40:55
Unless my colleagues have further questions about infringement, uh, why don't we turn
41:00
to 101?
41:02
Clerk
Yes, Your Honor.
41:03
Um, and, and, and here...
41:04
Judge Dyk
I'll just make sure that there are no other questions about infringement.
41:09
Okay.
41:09
Hearing none, you can proceed with 101.
41:12
Clerk
Uh, thank you, Your Honor.
41:14
Um, and I'll be brief given that I, I've already exceeded my time and I appreciate the court's
41:18
indulgence on this.
41:19
Um, I, I'd like to start, um, by, by just, uh, referencing a, a, a relatively new case
41:25
that came out of the federal court.
41:26
It's an unpublished case called Ex Parte Morsa and that's 809 Federal Appendix 913.
41:33
Um, and there's a line of cases in the federal circuit and we talk about this in our brief
41:38
and it's the Intellectual Ventures case, the Bridge and Post case, and now Ex Parte Morsa
41:43
that essentially say that these targeted advertising, uh, types of claims are patent ineligible
41:51
under, under Section 101.
41:53
And the Morsa case is particularly...
41:56
Um, important here because if you read that claim, it actually operates in almost precisely
42:03
the way that the, that, that, that freestream media samba is trying to assert their patents
42:11
here.
42:12
It starts with understanding data, uh, associated with user behavior and then does relevancy
42:18
matching to provide a targeted ad and it even includes a bidding system, um, where the winning
42:24
bid is ultimately placed.
42:26
And this court found, um, in the Ex Parte Morsa that it failed to satisfy Section 101
42:32
of the Patent Act.
42:33
Judge Dyk
Uh, there...
42:35
Did you tell Mr. Powers that you were going to raise Morsa?
42:38
Clerk
Um, I, I, I did not, Your Honor.
42:41
I was preparing yesterday and I just did a quick search and I, I found it...
42:44
Okay.
42:44
Judge Dyk
That's contrary to our rules.
42:45
Our rules require the notification of opposing counsel.
42:50
Clerk
My, my, my apologies, Your Honor.
42:53
Judge Dyk
Go ahead.
42:53
Clerk
The, the, um, the, the real issue that, that they talk about in their briefing is they
43:01
say that there is a technical solution on Section, on, on the 356 patent because, uh,
43:08
there is a sandbox and a mobile device that could preclude, uh, the provisioning of, of
43:14
targeted advertising.
43:15
But the claims don't say anything about this.
43:18
They don't say anything about how or why the sandbox exists.
43:22
They don't talk anything about...
43:23
They don't talk anything about security.
43:24
And their core arguments as to what the technical innovation here that takes it from an abstract
43:30
claim to an actual, uh, uh, inventive claim, um, simply isn't reflected anywhere, um, in
43:36
the claim.
43:37
Judge Reyna
Don't...
43:38
Don't...
43:38
Don't...
43:38
Don't...
43:39
Don't...
43:39
Don't...
43:39
Don't...
43:41
Don't...
43:42
Don't...
43:45
Don't...
43:51
Don't...
43:51
Don't...
43:53
Don't...
44:03
Clerk
Don't...
44:04
Don't...
44:04
Don't...
44:04
Don't...
44:04
Don't...
44:04
Don't...
44:04
Don't...
44:05
Don't...
44:05
Don't...
44:05
Don't...
44:06
Don't...
44:06
And that is not a core to their inventiveness here.
44:11
Judge Dyk
Their claim is that they figured out a way to get around the sandbox technology.
44:16
Is that correct?
44:17
You're saying that's not part of the claim.
44:19
Clerk
That's right, Your Honor.
44:22
Judge Dyk
That's exactly right.
44:23
What about step two of Alice?
44:27
Clerk
In step two of Alice, the question is, is there something new here in order to claim
44:33
or something that takes it from being an abstract concept to something that is inventive?
44:39
And here again, if you look at the Bridge and Post case, which we compared in our brief,
44:47
as well as the Intellectual Ventures case, there is nothing here that really transforms this into some sort of inventive step.
44:58
It doesn't improve the operation of computers.
45:01
It doesn't really solve any kind of technical problems.
45:03
It doesn't provide anything new that is inventive.
45:07
You even heard Mr. Powers say, for example, that the relevancy factor can be a human being just deciding its relevance.
45:15
If there's anything that one could consider inventive in this claim, it would be applying that relevancy factor for the relevancy matching.
45:23
And if it's merely a human being exercising judgment, that isn't taking this out of the realm of patent ineligibility.
45:34
Judge Dyk
Okay.
45:35
And my colleague?
45:36
Do you have further questions about 101?
45:40
Okay.
45:41
Hearing none, let's hear from Mr. Powers, and then we'll restore Mr. Chatterjee's rebuttal time.
45:50
Appellant Attorney (Indra Neel Chatterjee)
Thank you, Your Honor.
45:51
With regard to communicably coupled, I would refer the court to page 29 of our blue brief,
45:57
which cites their expert as admitting that the specification, and it's typical to have such communication couplings, indirect.
46:04
I think that should eliminate that issue.
46:07
With regard to the human activity question,
46:10
I'd like to address Judge Hugh's question about there being two types of matching.
46:15
Your Honor is right that there are two types of things that could be considered matching.
46:20
One, where you're setting up the data at the front end, which is done by people.
46:25
But there's only one type of matching in the claims.
46:28
And the claims is what you were referring to, I think, as the second matching, which is when an individual IP address comes in.
46:35
Not the creation of the list of thousands of them.
46:38
But when one phone comes in.
46:39
When one phone with an IP address comes in, matching that against the ad to be placed to that phone.
46:45
Judge Hughes
Well, Mr. Powers, can we go to the claim language?
46:48
I'm looking at claim one because it describes it more particularly, I think.
46:52
It says match primary data generated from the fingerprint data.
46:57
What is that?
46:58
Appellant Attorney (Indra Neel Chatterjee)
Primary data is the IP address, and targeted data is the ad.
47:04
Judge Hughes
And I heard your friend on the other side say that is done prior to upload.
47:12
Appellant Attorney (Indra Neel Chatterjee)
Is that a dispute of fact over that?
47:15
There is a dispute of characterization, I think.
47:18
There's not a dispute of fact.
47:19
There is no question that an Alfonso employee loads all the IP addresses of people who saw a Ford ad and makes a request to Beeswax that a campaign to show a Chevy ad to anybody who saw the Ford ad list, that that be done.
47:38
Judge Hughes
So Beeswax is a human being matching.
47:42
Matches IP addresses, targeted IP addresses with a particular ad.
47:48
Appellant Attorney (Indra Neel Chatterjee)
A human being specifies what Beeswax is supposed to do when an IP address comes in.
47:55
Judge Hughes
And to do that, it has to say these 10,000 IP addresses, watch the TV show we're keying on, and therefore associate them with the Chevy ad.
48:11
Beeswax has that information from Alfonso.
48:13
That is true.
48:15
So what Beeswax does is, well, why isn't that matching the primary data from the fingerprint data?
48:23
And the primary data is the IP address?
48:26
Yes.
48:27
And the fingerprint data is the TV viewing?
48:30
Appellant Attorney (Indra Neel Chatterjee)
Yes.
48:31
That's just loading up the information for which Beeswax can make the match.
48:36
Right.
48:38
Judge Hughes
I'm just trying to go through the claims step by step.
48:40
So the primary data is the IP address, the fingerprint data.
48:44
Is the TV viewing, the targeted data is the ad?
48:48
Yes.
48:50
Okay.
48:55
And when the individual IP address comes in.
48:58
I'm sorry.
48:59
I don't see individual.
49:00
It sounds to me, that's what a relevancy matching server, your claim says, this is what the relevancy server does.
49:07
It matches the primary data with the fingerprint data with the targeted data.
49:12
If that is done by an Alfonso employee instead of the computer, how do they infringe?
49:20
Appellant Attorney (Indra Neel Chatterjee)
They infringe because that's just loading up the data for the Beeswax server to do its job.
49:27
So the campaign ID, which is created initially, just says, we want to show this ad to any one of these groups of people.
49:37
So, for example, it might be people who watched foreign ads.
49:39
It might be people who watched the Super Bowl.
49:41
It might be 20 different types of factors.
49:44
That's their decision.
49:46
But the matching on the claim comes in when an individual IP address from a phone.
49:51
Comes in and Beeswax has to figure out very quickly which ad to serve to that IP address.
50:00
And it does that based on this bidding system and matching that IP address with whatever ad is supposed to go to that group of IP addresses based on the campaign ID.
50:09
To address very quickly, council's argument that there's nothing in the Alfonso-Vizio agreement that dictates the manner by which Vizio produces the data.
50:27
The manner is dictated.
50:29
The manner is dictated twice in the contract.
50:31
One is that the audiovisual content has to be done without the aid of metadata.
50:36
That's the quote.
50:37
Without the aid of metadata is specifying the manner in which it be conducted.
50:42
And that means using fingerprint data as per the experts of the discussion that I gave in the earlier context.
50:49
The second place it does so is in attachment two, in appendix 2231 and 2237, which specifies various fields that have to be filled in.
50:59
Some of which are content recognition type fields, again, at a high level for confidentiality purposes.
51:04
I'd like to address very briefly the 101 question, if I may.
51:08
Judge Dyk
Go ahead.
51:09
Appellant Attorney (Indra Neel Chatterjee)
The argument that was just made to you is that targeted ad claims, per se, are unpatentable.
51:16
And I would agree with that if that's what the claim is covering, is covering the concept of a targeted ad.
51:23
That is not this claim.
51:24
This claim is claiming a system that may be used to create targeted ads.
51:29
But the concept of the claim is not do a targeted ad.
51:32
The concept of the claim is in order to do this right, you have to pierce the sandboxing technology that the phones have.
51:41
And this claim specifies a way to do that.
51:44
Judge Dyk
How does it do that?
51:46
How does it specify a way to do that?
51:49
Appellant Attorney (Indra Neel Chatterjee)
It has the embedded object that the phone is going to process that is placed there by the relevancy matching server.
51:55
And the content identification server is also there to go through.
52:00
Through that sandboxed application.
52:02
So that way, when you have, you're sitting there with your phone watching your TV, and a Ford ad comes up, all of a sudden you get a Chevy ad on your phone.
52:15
That can't happen without...
52:17
Judge Dyk
Let's look at the actual claim language.
52:19
Let's take claim 10.
52:22
Where is this dealing with allowing communication in a sandbox?
52:32
What language in the claim is dealing with this?
52:37
Appellant Attorney (Indra Neel Chatterjee)
So if you look at the match primary data limitation, it says, quote, match primary data generated using a fingerprint data with targeted data based on a relevancy factor comprising at least one of a category of the primary data, a behavioral history of the user, a category of sandboxed application, and another information associated with the user.
53:02
So that's...
53:03
Specifically saying you're using the sandbox information as a way of matching the IP address, for example, with the ad.
53:12
And the last clause is wherein the relevancy matching server is to cause a rendering of the targeted data to the user through the sandboxed application of the mobile device.
53:22
So it's specifically saying that that relevancy matching server is piercing the sandbox.
53:27
And the specification goes into more detail on ways that it can do that.
53:34
But for example, using a common IP address.
53:37
So if your phone, if you're sitting in your home, and you're watching your TV through an IP address, and your phone is linked to that same IP address, this is exactly what the relevancy matching server is that's being discussed in 10, and the relevancy factor comprising including the IP address.
53:56
Judge Dyk
But that's why you're saying that the details of how to do that are in the specification but not in the claim.
54:04
Appellant Attorney (Indra Neel Chatterjee)
An example of how to do that is in the specification.
54:07
The claim says you're going to pierce the sandbox application using the relevancy factor, and specifically says the relevancy factor includes the category of sandboxed application, the primary data, the behavioral history of the user.
54:22
Those are examples of how you can pierce the sandboxed application.
54:28
Judge Reyna
And it's your...
54:29
Appellant Attorney (Indra Neel Chatterjee)
Go ahead.
54:32
Judge Reyna
It's your argument that...
54:34
Claim 10, the language that says to cause a rendering of the targeted data, that's your claim to advance.
54:41
Is that correct?
54:43
Appellant Attorney (Indra Neel Chatterjee)
That's half of it.
54:44
The other half is the part above, which says the relevancy factor comprising.
54:50
So we're saying the relevancy factor has to comprise the category of primary data, behavioral history of the user, a category of sandboxed application.
54:59
That is the way, part of the way, that the sandbox...
55:04
The sandboxed application is pierced.
55:05
Judge Dyk
I don't understand that, Mr. Powers.
55:08
I thought the relevancy factor was the relationship between Ford viewing and Chevy ads.
55:15
Appellant Attorney (Indra Neel Chatterjee)
That's an example for claim one, yes.
55:17
Judge Dyk
How does that supply a technological solution of piercing the sandbox?
55:24
Appellant Attorney (Indra Neel Chatterjee)
That was an example for claim one.
55:26
This is claim 10 that is providing more information and different information about what the relevancy factor comprises.
55:33
And it makes clear that...
55:34
That part of that can be the sandboxed application.
55:37
And I think the fair way to say...
55:39
Judge Hughes
Mr. Powers, when you keep saying category of a sandbox application, what does that actually mean?
55:47
Isn't that just another type of identifier of a particular individual using a particular device?
55:57
It's similar to...
55:58
I don't understand what you're saying when you say a category of a sandbox application.
56:02
That sounds like just one other possible...
56:04
Level relevancy factor along with IP addresses, behavioral history, all that kind of stuff.
56:11
Not that it's a particular way of dealing with the sandboxed application.
56:18
Appellant Attorney (Indra Neel Chatterjee)
I would half agree, Your Honor.
56:20
So you're absolutely right that the category of sandbox application is listed here as part of the relevancy factor.
56:29
The specification has more of an explanation of how that can be used,
56:34
but that doesn't need to be in the context.
56:36
The point of the claim is that you're using the sandbox information to pierce the sandbox, as it says later in the claim.
56:42
Judge Hughes
But what does that even mean?
56:43
That's what I'm asking.
56:44
And I'm not trying to be obtuse here.
56:47
I don't understand what category of sandbox application means.
56:53
Give me an example of what is the type of category of a sandbox application and how it's used.
57:00
Appellant Attorney (Indra Neel Chatterjee)
Android, iPhone, it could be something that specifies that this is a particular...
57:04
This is an iPhone, which means...
57:06
That you would use that information to pierce an iPhone differently than you would an Android, for example.
57:12
That's one example.
57:15
Judge Dyk
How does the claim tell you how to do that?
57:17
Appellant Attorney (Indra Neel Chatterjee)
The claim doesn't need to, I think, Your Honor.
57:20
The claim says these to say what you're doing.
57:24
The explanation for how that can work is found in the specification.
57:30
Judge Dyk
I don't think that's consistent with our cases.
57:33
Appellant Attorney (Indra Neel Chatterjee)
I believe it is, Your Honor, because there are many cases that require, of course,
57:39
that the claim...
57:39
If the claim has the elements to provide the technological advance,
57:45
the claim doesn't have to have the detailed explanation for how that advance functions.
57:52
That, I don't think, your case is required at all.
57:56
Judge Reyna
Counselor, this is Judge Rainer.
57:58
Now, in your infringement argument, and I realize that now we're talking on Section 101,
58:04
and this is directed to Section 101,
58:06
but this is a question that I asked earlier in these arguments,
58:10
and that is that...
58:12
You say in your brief that the district court erred because claims 10, 13, and 18
58:18
do not require the use of a mobile device.
58:23
That's your argument.
58:25
Yes.
58:25
And if your claimed advance is that this patent, its relevancy matching server
58:34
causes a rendering of the targeted data to the user,
58:39
and then it goes on through your sandbox application on the mobile device,
58:43
doesn't your claimed advance require the use of a mobile device?
58:49
Appellant Attorney (Indra Neel Chatterjee)
Not in a centillion sense.
58:52
Judge Reyna
I'm not talking about centillion.
58:54
I'm talking about in the Section 101 sense.
58:56
Appellant Attorney (Indra Neel Chatterjee)
Yes.
58:57
So in the Section 101 sense,
58:59
what is required is that the server renders this information to the phone.
59:04
That's what's required.
59:05
But in a centillion sense, that's not use of the phone.
59:08
Judge Reyna
No, it doesn't say that.
59:09
It says that it renders its sandbox reachable service.
59:13
To the phone.
59:15
Appellant Attorney (Indra Neel Chatterjee)
Yes.
59:16
So wherein the relevancy matching...
59:17
The language of, say, claim 10,
59:19
wherein the relevancy matching server is to cause a rendering of the targeted data
59:24
to the user through the sandbox application of the mobile device.
59:27
So that's exactly what we're saying is the technological advance that was not possible before,
59:34
and it's done that through the relevancy factors that are shown up above and to...
59:39
Right.
59:40
Right.
59:40
Judge Reyna
So absent that language,
59:42
absent this particular...
59:44
This particular part of claim number 10,
59:48
to cause a rendering of the targeted data.
59:50
If that was not in the claim,
59:52
then this would just be a mere targeted advertising.
59:56
Appellant Attorney (Indra Neel Chatterjee)
I disagree with that, Your Honor.
59:59
I think that...
60:00
Judge Reyna
I mean, the only thing that makes you different here
60:02
is this to cause a rendering of the targeted data to the user
60:06
through the sandbox application of the mobile device.
60:10
That's the technological...
60:12
Appellant Attorney (Indra Neel Chatterjee)
Go ahead, sir.
60:13
That's your advance.
60:15
I certainly agree that's part of it,
60:17
but I would also draw a hard distinction between a claim
60:21
which is claiming the idea of relevant ads
60:26
versus a claim that is claiming a system, which is...
60:32
Judge Reyna
You're claiming a system that gets you past the sandbox applications of the mobile devices.
60:37
That is true.
60:38
Appellant Attorney (Indra Neel Chatterjee)
And using the techniques that the claim identifies to limitations above.
60:51
Judge Dyk
Okay.
60:52
Unless my colleagues have further questions,
60:55
let's hear from Mr. Chatterjee.
60:58
Thank you, Your Honor.
60:59
On 101.
61:02
Clerk
Thank you, Your Honor.
61:03
This is Neil Chatterjee for Alfonso again.
61:07
Your Honor, I think Your Honor has hit the nail on the head
61:10
in terms of the issues with these claims
61:14
and their vulnerabilities under Section 101.
61:17
As we've been going for quite some time,
61:19
I'll just focus on one issue,
61:21
which was a question that one of Your Honors asked
61:24
about the...
61:26
the phrase that's used here in Claim 10
61:28
that talks about rendering of the targeted data to the user
61:32
through the sandboxed application of the mobile device.
61:36
And I heard one of the judges mentioned that Mr. Power's response
61:42
was not consistent with the case law.
61:43
And I agree with that because that claim is written purely in functional terms
61:50
in an abstract way.
61:51
It doesn't actually say how it's done in the claim.
61:54
And that is the perspective.
61:56
It's a precise problem with the claim
61:58
that makes it vulnerable and ineligible
62:01
under Section 101 of the Patent Act.
62:04
Mr. Power has made a lot of references
62:06
to these embedded objects that are sent with a transmission,
62:10
but you don't see that anywhere in the claim.
62:12
He's relying on specification.
62:15
And had they claimed that,
62:16
we might have a different issue here.
62:18
But that isn't what they claimed.
62:19
They claimed purely a functional aspect
62:23
of provisioning targeted advertising
62:26
and I believe one of the other judges also made a remark
62:31
on how does this gel with the infringement allegation.
62:34
As I'm focusing on rebuttal here,
62:36
I think that that is an important point
62:38
because they either have to say that this sandboxed component is part
62:43
of the claim and is relevant, or it's not.
62:48
And if it is relevant, it's patent ineligible
62:52
because it's purely functional claiming stated in an abstract way.
62:56
Unless your honors have further questions,
62:58
I'll submit at this point and I appreciate your time.
63:01
Judge Dyk
Okay. Hearing no further questions,
63:03
the case is submitted.
63:04
We thank both counsel.