IN RE GOOGLE TECHNOLOGY HOLDINGS LLC — Oral Argument

0:06 Clerk The United States Court of Appeals for the Federal Circuit is now open and in session.

0:11 God save the United States and this honorable court.

0:15 Judge Taranto Your argument first in 19-1828 in re Google Technology Holdings.

0:26 Ms. Cayali.

0:28 Appellant Attorney (Kathryn Schleckser Kayali) Good morning, Your Honors, and may it please the court.

0:32 My name is Catherine Cayali.

0:34 I'm here on behalf of Google Technology Holdings to present what is a quintessential claim construction dispute.

0:41 Google defined a claim term in its specification.

0:45 Judge Taranto Ms. Cayali, this is just Toronto.

0:48 Can I ask a kind of preliminary question?

0:51 Assume just for purposes of this question that we were to affirm here, would Google be able to file a new claim

1:02 or claims containing the language you argue for as a matter of claim construction here either

1:10 in this application or in the application?

1:13 Appellant Attorney (Kathryn Schleckser Kayali) Your Honor, no current continuations are pending in this chain.

1:18 This is the last application in this chain.

1:20 Whether or not we could file a continuation upon affirmance and remand, that's something I would have

1:25 to defer to prosecution counsel for, but I believe it's possible

1:28 that a continuation could be filed after the fact.

1:31 Judge Taranto This application remains pending, is that right?

1:34 Appellant Attorney (Kathryn Schleckser Kayali) This application upon, again, I would defer to prosecution counsel, but this application is pending.

1:40 It's the last application in the chain.

1:42 It's not a continuation.

1:43 If this court were to affirm and remand, my understanding is

1:45 that a continuation could be filed before the mandate.

1:48 Judge Taranto Okay. Let me ask you then, turning to the merits, although not quite the merits

1:53 of the claim construction itself, is your understanding that the, let's call it,

2:01 the principle of LeBron and Williams says only that court may side an issue

2:14 that was passed upon even if not quite argued.

2:17 It doesn't say.

2:18 It doesn't say that we are obliged to.

2:20 And if that's your understanding, why is this a case which we should?

2:27 Appellant Attorney (Kathryn Schleckser Kayali) Your Honor, I would respectfully push back against that understanding.

2:30 I think that while Williams is phrased in the permissive sense in the Supreme Court's certiorari,

2:36 so cases like this court's in Conoco make clear that when the decision below rests

2:42 on a legal principle, when a legal issue is passed upon and forms the foundation

2:46 of the lower tribunal's decision, that decision must be reviewed on appeal

2:50 because it's the foundation of the opinion and a pure legal issue.

2:56 So I think the context, even though Williams phrases it in the permissive, this court has applied it

3:02 and many circuit courts have applied it to require passing on issues that,

3:06 on legal issues that form the basis of the opinion below.

3:09 So turning then to the merits of the claim construction argument, if I could,

3:19 I think it's clear from the, from Google's specification in paragraph 67

3:24 that Google has clearly defined the term cost.

3:27 To refer to a bottleneck link.

3:29 Judge Chen There is.

3:30 Ms. Caioli, Ms. Caioli, this is Judge Chen.

3:33 I was, the term in the claim is content source cost and I was wondering is, is that term,

3:42 that phrase used anywhere in the specification in the written description other

3:48 than in the claim, content source cost?

3:52 Appellant Attorney (Kathryn Schleckser Kayali) No, Your Honor, I don't believe it is.

3:54 But I think it's unambiguous in the context of the claim that that content source cost refers

3:58 to the cost of the claim.

3:59 Again, as the claim language continues of retrieving the content

4:02 from the second content source or a third content source.

4:05 That problem is unambiguously addressed in the specification under the pure choice rubric

4:11 of how to determine from where to source content.

4:14 Judge Chen Are you talking about, are you talking about the bottleneck link discussion?

4:19 Yes, Your Honor.

4:21 Just curious, I believe you have some patents that have issued already

4:26 off of this written description, is that right?

4:28 Appellant Attorney (Kathryn Schleckser Kayali) That's right, yes.

4:30 Judge Chen Do you have any claims in those patents that use the term bottleneck link?

4:36 Appellant Attorney (Kathryn Schleckser Kayali) We do not, Your Honor.

4:37 No, no use of the term bottleneck in the claims.

4:40 There are claims that refer to links, excuse me, cost based on traffic which is predicted

4:47 to occur over a most utilized link.

4:50 But I would suggest that most utilized is not synonymous with bottleneck.

4:54 Judge Chen And just curious while we're at this housekeeping point, are there any claims

4:58 that use the term fetch cost?

5:03 Appellant Attorney (Kathryn Schleckser Kayali) Your Honor, that's the answer I don't know off the top of my head.

5:05 My recollection is that they do not.

5:08 But I would need to confirm that.

5:09 Judge Chen And finally, I'm sorry, just out of curiosity,

5:12 why is this case captioned in ray Google instead of in ray name of inventors?

5:19 Appellant Attorney (Kathryn Schleckser Kayali) Sure, that's a new feature of the AIA that allows corporations actually to be patent applicants.

5:25 And so, in this instance, the applicant is Google technology holding.

5:29 Judge Chen Ah, thank you.

5:30 Okay, please continue.

5:31 Appellant Attorney (Kathryn Schleckser Kayali) Sure, Your Honor.

5:34 So, I'm turning again to paragraph 67, which refers to the definition of cost

5:40 as that term is used in the claims here.

5:43 Paragraph 67 explains that the cost of the path is defined by the bottleneck link in that path,

5:51 which is the link that takes the longest to transfer item I. The bottleneck link

5:55 in the path obviously refers to the path connecting the source of the content to the user.

6:01 So, it's unambiguous in paragraph 67.

6:03 So, it's unambiguous in paragraph 67, which is addressed under the heading of pure choice,

6:07 that when choosing among different sources, you identify the source,

6:11 the specification calls in paragraph 68 the largest bottleneck I would tend it

6:19 to mean is the least problematic part specification direct one to choose.

6:27 How to source content is by identifying the path, the source with the path to the user

6:32 that has the least problematic bottleneck.

6:35 Respectfully Your Honor, that is in direct conflict with instruction

6:40 that the bottleneck link to the source contains.

6:40 board offered under the guise of broader treatable interpretation. The board offered a construction

6:45 that, in essence, cost encompasses everything taught by the prior art. Cost encompasses

6:51 everything taught by Costa, which was one reference assertive. Cost encompasses everything

6:55 taught by Scholl, the second reference that the examiner relied upon. And that means that cost

7:00 includes everything up to and including monetary value, a concept completely divorced from the

7:05 manner in which the term cost is used here. I think it's clear that when applying the definition

7:11 of cost as used in paragraph 67, the board has not identified, and neither has the examiner,

7:18 any reference that discloses that cost. Because the lexicographical definition of the term has

7:25 to control, the board's construction is not only impermissible, but results in a legally erroneous

7:32 Judge Taranto obvious misconclusion. Can I just say, Ms. Kelly, you used the phrase problematic, least problematic.

7:45 Is that the same?

7:46 Is that the same as that takes the longest to transfer?

7:51 Appellant Attorney (Kathryn Schleckser Kayali) Yes, Your Honor. I think in the context of the specifications, for instance, in paragraph 68,

7:57 that describes the largest bottleneck link, I think largest is what is intended there is takes the

8:03 least time is the largest bottleneck link. The smallest bottleneck link is the one that takes

8:09 the longest to transfer the item. Hopefully that distinction makes sense. I refer to least

8:13 problematic, so it's just to not create any ambiguity between whether a bottleneck link is the

8:17 Judge Taranto largest bottleneck link or the largest bottleneck link is the largest bottleneck link.

8:23 I would not know, Your Honor.

8:32 Appellant Attorney (Kathryn Schleckser Kayali) Okay.

8:33 I'm referring simply to the determination of which link is the bottleneck, and therefore,

8:38 which link takes the longest to transfer the item.

8:43 Judge Chen Ms. Kelly, this is Judge Chen again. I noticed that in the claim, when it refers to content

8:49 source cost, it also says based on network impact, quote unquote. And I was wondering if you could

8:54 elaborate on that, because I was trying to think about what does that mean in relation to your

8:58 preferred definition. Your preferred definition seems to be thinking about cost in the perspective

9:06 of speed of delivery of the content. And based on network impact could be understood as, well,

9:15 looking from the perspective of the network itself, not the speed of the delivery of the content,

9:20 but the harm or

9:24 harm on the network. And so I was wondering how does this term, based on network impact,

9:32 help your cause in forcing us to think about content source cost is really from the perspective

9:39 of the speed of the delivery of the content to the customer.

9:46 Appellant Attorney (Kathryn Schleckser Kayali) Yes, Your Honor. So I would suggest especially that Google's definition is not one that's limited

9:51 to the speed of the transfer of the content, because it may be that the fastest path is not the

9:56 one with the smallest or the least traffic.

9:57 Yes.

9:57 But it is the one that has the most problematic bottleneck link. For instance, it might make sense to

10:01 travel a longer distance and longer in time as well if you avoid hitting a bottleneck that not only

10:08 could delay your transfer, but might impede the transfer of other content as well. The same idea that

10:13 if you pile more cars onto 66, not only are you slowing down your commute, but you're slowing down

10:18 everyone else's. And of course, the network

10:20 Judge Taranto I'm sorry, but how do you get that out of the middle sentence of paragraph 67, which seems to focus

10:27 just on the longest to transfer a particular link?

10:37 Appellant Attorney (Kathryn Schleckser Kayali) Oh, Your Honor, I see I'm in my rebuttal time. I'm happy to answer your question with the panel's permission.

10:41 Yes, please.

10:42 So the difference here is that there may be multiple links in a path. So while an individual link might be

10:50 slowest in a path, it might be faster than the slowest link in a different path. And so you choose the path

10:58 that has the least slow, slowest link, the fastest slowest link.

11:02 And by doing so, that direction, that's the direction to choose the one that has the largest bottleneck link.

11:11 And by doing so, that you're avoiding complicating or you're avoiding exacerbating, excuse me, existing

11:16 bottlenecks in the system that might already be congested with link traffic.

11:24 Judge Taranto Do you want to say a word about network penalty? And then we'll keep your rebuttal time.

11:32 Appellant Attorney (Kathryn Schleckser Kayali) Thank you, Your Honor. Yes, if we turn to network penalty, I think the definition and the specification is crystal clear.

11:37 Okay.

11:38 That it begins definition, colon, network penalty. And it provides a formula that's based on much of Google's ability

11:47 to compute, use.

11:48 Ms. Kiley?

11:48 Yes.

11:49 Judge Chen Ms. Kiley, I'm sorry. This is Judge Chen again. I know you're running out of time here. Could you just point me to a

11:55 sentence in your board brief that gives me a clue and a signal that the board should have recognized it was looking

12:05 at a preferred penalty?

12:08 Yes.

12:09 So, if the construction of the term network penalty is advanced by Google, what sentence would that be in your board brief?

12:15 Appellant Attorney (Kathryn Schleckser Kayali) Your Honor, I can't point you to where we disclose this construction. I concede that. But I think that this construction is

12:22 certainly consistent with the manner in which we interpreted the claim below, which is to say that simply understanding cost and

12:31 sorry, simply understanding that the size of content matters, that the distance content needs to travel matters is not sufficient to

12:38 reach the formula that's disclosed in paragraph 80.

12:41 Judge Taranto And this is Judge Schrander. Let me just ask you one question on the merits of this construction. If we're doing a BRI interpretation,

12:52 the question perhaps is, would a relevant skilled artisan understand that the language of the claim, which refers only to two of

13:04 three factors in the specification formula.

13:08 Yes.

13:09 So, if the specification formula is not redefined by that specification formula, is the choice is, do I read that formula as

13:20 essentially an embodiment formula or as a redefinition?

13:26 And because there's a disparity between the claim language, quite noticeable disparity of leaving out the fetch cost, one reasonable

13:38 by a relevant skilled artisan would.

13:51 Appellant Attorney (Kathryn Schleckser Kayali) Your Honor, I understand the point.

13:52 Yes.

13:52 So, the claim language you're pointing to, and we would submit that this definition is clear on its face that it's not limited to a single

13:59 embodiment, and that in fact, while that, excuse me, the claim language is entirely consistent with paragraph 80, although it does not

14:07 mention the fetch cost, the definition of network penalty imports the use of fetch cost into the claim by virtue of the defined claim.

14:16 Judge Taranto I think we'll hear from the other side, and you'll have your full five minutes for rebuttal.

14:24 Thank you.

14:25 Judge Stoll Thank you, Your Honor.

14:30 Appellee Attorney (Daniel Kazhdan) May it please the Court.

14:31 I just, I want to pick up where Your Honor just left off in the call with my friend.

14:38 And the question about network impact, I want to point out that the, it's not just, Judge Chen asked about whether any of the claims mentioned fetch costs.

14:50 In Claim 10, I think it's actually very illustrative here, if you look on Appendix 18, and so, or over onto 19.

14:58 And it says, the network penalty is based on size, number of requests, and fetch costs.

15:04 So, some of the claims actually expressly talk about network penalty in the context of fetch costs.

15:11 But Claim 1 does not.

15:13 It only mentions two out of the three, to Judge Taranto's point.

15:16 So, I think that this sort of gets at the point, which is that the claims seem to be redefining it, and different claims are using the term differently.

15:25 Which, the contrast between the language of Claim 10 and Claim 10.

15:28 And Claim 1.

15:29 And there are other claims that also expressly talk about network penalty in terms of fetch costs, like Claim 18.

15:36 So, I think that it does, there's at least a question about what this means.

15:40 And so, under BRI, I think the Board rightly was, if the Board had been asked to pursue it, it would have been right to say that there's a potential redefinition.

15:51 But I think this whole case, and just sort of now back to the beginning, is, this is a case where Google is arguing for lexicography.

15:59 And this Court has repeatedly talked about the fact that lexicography is an exception.

16:03 So, if you want to tell the Board that you, if you think a word has a special meaning, is that you've given it a meaning different than its normal meaning,

16:11 you should have to tell the Board that that's what you're arguing.

16:14 And if you don't, then you're tacitly agreeing.

16:18 And I think that, you know, the notion of the tacit agreement, I think that was actually something that Google said in describing NUVO.

16:24 But I think that's an accurate description of where the Court should be going for addressing issues.

16:29 Issues that weren't raised by the parties but are decided by the lower tribunal and where it shouldn't.

16:34 So, you know, in Clariat, the Sixth Circuit case, the Court says that, you know, it's unfair, if you didn't even know something would be an issue,

16:43 and then the district court or trial court decided against you, it's unfair if you don't get a chance to rebut that.

16:49 So, for example, if the fact had been reversed, if the Board for the first time had said, we're going to apply lexicography,

16:55 where nobody mentioned lexicography before,

16:58 it'd be fair for the appellant to say, look, we didn't know that anybody thought that this term has a special meaning.

17:04 But that's the opposite of our fact.

17:06 Here, the Board just did what the default rule is, and Google wants the exception.

17:12 If it wants an exception, it has to say it.

17:14 And if it doesn't, it's tacitly accepting that the word will have the normal meaning.

17:22 Judge Taranto Mr. Kasdan, this is Judge Taranto.

17:24 Do you have an answer to the first question I asked Ms. Kaye?

17:29 I'm sorry, Ali, about whether new claims containing express language with the now-urged construction could still be filed.

17:40 Appellee Attorney (Daniel Kazhdan) So I think they would run – so this is – the MPEP notes, and it's not –

17:46 that there's conflicting case law a little bit on the scope of res judicata from one prosecution to another.

17:53 I think the better read is that if they have the same claims, there would be res judicata,

17:58 although I think there is a Judge Rich opinion where he says if you change the record,

18:02 you can have the same claims and have new arguments.

18:05 But I think more recent –

18:06 No, no, no, I'm sorry.

18:07 Judge Taranto I don't think I've asked my question.

18:09 Let's take the proposed claim construction, a bottleneck link construction.

18:17 Let's imagine a claim with those words in it.

18:21 And similarly for a network penalty, words that paragraph with the formula.

18:29 So now we have new claims.

18:30 New language in claims.

18:33 Could Google file such claims either in this application or in a continuation?

18:38 Appellee Attorney (Daniel Kazhdan) I apologize, Your Honor.

18:40 You're right.

18:41 I did misunderstand the question.

18:42 Yes.

18:42 Until the mandate issues, Google can file a continuation of this application and say we're going to amend the claims

18:49 and we're going to just put exactly the words.

18:51 So a lot – as you know from the briefs, one of the questions is whether content source cost means cost of the path, let's say.

18:58 We disagree about that.

18:59 If they put in cost of the path, they've gotten past that issue, right?

19:03 And they can still file a continuation.

19:05 Now, if they don't have a live continuation, and my friend said that they don't, then once the mandate issues,

19:11 the MPP says that we cannot – the USPTO can no longer continue prosecution.

19:17 But until then, they can file a continuation.

19:19 So they could do that today, file the continuation, preserve the issue, and then file the claims where there's no claim construction issue

19:27 because the claims say expressly what they mean.

19:29 Judge Taranto I guess one reason I've asked the question is that the passed upon rule is a rule of, you know,

19:39 quite general potential of a scope not particularly tied to this context, patent application context.

19:50 And I wonder if whether it should be applied is – might be affected by the availability of a curative,

20:00 curative option on the part of the litigant, one that also happens to serve the important patent policy

20:08 of having content as much as possible on the face of the claim.

20:15 Appellee Attorney (Daniel Kazhdan) Yeah.

20:16 So I think that that makes sense to me.

20:18 And this is sort of why BRI exists, is the policy of this Court is long, I suppose, which is just make it clearer.

20:25 Everybody will know, and that life will be easier for everyone involved.

20:29 And I think that that's a good reason to say that.

20:31 We're not – this isn't an estoppel that's going to bar you from doing anything that you want

20:35 the way it would in a district court where you have to pay money damages.

20:38 Just draft claims that don't have this issue, and then we can move on,

20:42 and the whole claim construction issue can go away, and we can talk about the merits.

20:46 I think that's right, Your Honor.

20:47 Judge Chen Mr. Cosden, just to be clear, I thought I had heard you earlier say that if the facts were in reverse,

20:56 then you would think it would be appropriate for us to consider the claim construction issue.

21:00 That is to say, if the Board surprised everybody by engaging in some kind of lexicography analysis

21:10 that had been unexpected, then, therefore, the appellant in that instance would say,

21:17 no, I want the broadest reasonable interpretation, and you're now surprising all of us

21:23 by incorporating the specification into the claim.

21:28 Appellee Attorney (Daniel Kazhdan) Yes.

21:29 So two points.

21:30 One, I hadn't thought about Judge Sauron.

21:32 I hadn't thought about this point at the time.

21:33 But the other one is that sometimes if you want the plain language of the claim,

21:38 it may be hard to write your claims in the way, like the words you may want to use

21:44 based on your specification may be the words you've chosen,

21:47 and if there's no lexicography, then it seems unfair that you never have a chance to say

21:53 there is no lexicography.

21:55 So in that sense, I think if the facts were reversed,

22:01 I'd have more sympathy for you.

22:02 I would have more sympathy for an appellant to say that I've been surprised,

22:05 and I don't feel like I should have to use some clunky term,

22:08 which then might run into description problems because people will say,

22:12 well, that's not in the spec or something.

22:14 So if they've chosen the best terms.

22:17 Judge Stoll Hi.

22:19 This is Judge Stoll.

22:20 I just had one quick question on your answer there,

22:23 which is simply that do you think that in this hypothetical that you posed

22:28 where the Board has a new claim construction that it never announced before,

22:33 would that be something that would require reopening prosecution?

22:36 Would that then become kind of a new ground at that point that was provided by the Board

22:41 for the first time?

22:43 Appellee Attorney (Daniel Kazhdan) Well, so this Court has some case law.

22:45 I mean, it's very hard to tell.

22:47 It depends a little bit on how surprising it is.

22:49 So this Court has said sometimes there could be a due process problem,

22:54 although this Court has said that the ability to petition for rehearing might be enough to get past that.

22:59 But it will depend, I think,

23:01 on how different the construction the Board does is from the construction that you have.

23:05 And so it may be fact-specific about whether the new construction requires reopening.

23:11 And then under Chenery, I think this Court also can say, look,

23:15 clearly this construction is right or isn't right,

23:18 and clearly there's no substantial evidence could only support one conclusion.

23:22 So, you know, I feel like it will depend on the specifics of the facts.

23:26 And so maybe I opened up more of a can of worms than I intended to with the hypothetical.

23:30 But I think it would depend on the specific case on how far,

23:33 how surprising is the Board's decision, how far afield is this.

23:40 Judge Stoll On the waiver issue, do you see any difference here given that this was an ex parte case

23:46 and the examiner had presented a prima facie case of unpatentability?

23:54 Do you think that it makes a difference in an ex parte case that somehow there would be some incentive for a party

24:00 to provide its claim construction?

24:02 Do you think that there would be some incentive for a party to provide its claim construction positions

24:03 in distinguishing the prior art as soon as possible, either before the examiner or the Board?

24:10 Appellee Attorney (Daniel Kazhdan) Yes.

24:10 I think even in an inter-party, this is true, but it's really unfair to the examiner to suddenly,

24:18 I mean, it's really unfair to the whole USPTO, right?

24:20 The Board also didn't have any briefing on this issue.

24:23 For Google to come in and say this whole case should turn on a claim construction that nobody mentioned,

24:30 and, you know, and this Court has said in ex parte cases,

24:33 for example, secondary considerations, the burden of production, I think, has shifted to the party.

24:40 So, like, we do account for the fact that the examiners have limited time,

24:44 and we sort of expect the applicants to bring forth their arguments more clearly than in inter-party cases.

24:51 I think that's correct, Your Honor.

24:57 I'm happy to answer other questions.

24:58 I do feel like this case really should be decided on waiver.

25:02 I think that the multi-step claim construction argument of content source cost equals cost of evidence,

25:09 and cost of the path equals bottleneck link is difficult, both because it's not clear.

25:13 Both steps are difficult because, as we point out in our brief,

25:17 the end of the specification suggests that even cost of the path may have multiple definitions.

25:26 And then the same thing goes for the network penalty, where you have a sort of,

25:30 you have a waived argument, and there are solid claim construction questions about what you do about balancing the language,

25:39 which are the claims, but claim two, which doesn't mention fetch cost and does versus the definition that seems to.

25:46 And so, given that, this court really, Google needed to present that independent instance to the board.

25:52 I'm happy to answer any other questions, but if not, I will cede back my time.

25:58 Judge Taranto Hearing no other questions, thank you.

26:01 And, Ms. Keali, you have five minutes for your rebuttal.

26:07 Appellant Attorney (Kathryn Schleckser Kayali) Thank you, Your Honor.

26:08 I'd like to return to the waiver issue briefly to say that this court in Conoco explicitly held

26:14 that where a district court had construed a term that neither party had sought construction of below,

26:19 this court must review that construction de novo.

26:23 I agree that that's different language than that is espoused in Williams, but this language of Conoco is not permissive.

26:29 Secondly, I don't think there's any support for my friend on the other side's suggestion that if the situation were reversed,

26:36 if the board had come up with a lexicographical definition in the first instance, that the situation should turn out differently.

26:43 Candidly, Google was surprised.

26:46 Judge Chen Ms. Keali, could you explain how Google would have been surprised by this conception of content source costs articulated by the board?

26:57 I mean, I don't see anything here that suggests that what the board said was a harsh departure from what could have been

27:06 or necessarily was understood by the examiner and Google's counsel during the prosecution.

27:16 Appellant Attorney (Kathryn Schleckser Kayali) Yes, Your Honor.

27:17 We have explicitly defined the claim.

27:19 We have determined the specification.

27:20 And when the examiner rejected our claims on basis of prior art, for example, the shoal reference,

27:26 which relates to proximity-based determination, we repeatedly said, no, shoal is proximity.

27:32 Shoal is proximity.

27:33 This is not content source costs.

27:35 And I think in that back and forth with the examiner,

27:37 our understanding was that we were applying the definition of content source costs that we had espoused in the specification.

27:43 So to see a different definition of content source costs, one that's untethered from the language of the specification,

27:48 that's untethered from the context of the application,

27:49 that's untethered from the context of the claim,

27:50 that goes so far as to include monetary value, was a surprise.

27:53 One in the conversations with the examiner or the discussion of the prior art had a telling that in the board's discussion,

28:04 not only did it offer a construction of cost,

28:06 what it said right before it offered that explicit construction was,

28:10 we construe cost to everything that's end shoal disclosed.

28:18 The claim construction effort that really was intended to wipe away all prior art

28:24 and fold that into a decision that the term cost was broad enough to include whatever it was.

28:29 So that wasn't, I don't think there's any Federal Circuit precedent for the idea that if the situation were reversed,

28:38 that the situation should turn out different.

28:43 Moreover, while we, especially while we may be able to file a claim before the mandate issue,

28:48 we are here on the fact that they're presented,

28:51 that the terms as we have used currently in court,

28:59 it's quite clear in context what cost and discuss claim terms.

29:09 I don't think there's any distinction, this case and the Conoco case,

29:16 and I would respectfully urge the court to consider that.

29:19 Consider its claim construction.

29:20 Sorry, to review the lower tribunal's claim construction under the Conoco rule.

29:26 With that, I would say only that Google respectfully requests vacator of the board's

29:31 affirmance of the examiner's final rejection,

29:34 which would send the application back for further prosecution.

29:43 Judge Chen This is Judge Chen.

29:44 I just have a quick observation.

29:46 Ms. Cagliari, I thought your briefs were expertly done here,

29:49 and I only wish your client had given,

29:53 your prosecution counsel as much time to write the board briefs

29:58 as you clearly put into these nicely done briefs.

30:03 Thanks.

30:04 Appellant Attorney (Kathryn Schleckser Kayali) Well, Judge Chen, I thank you, and I appreciate the compliment.

30:12 Judge Taranto Thank you to both counsel, and the case is submitted.