Legal Case Summary

Please proceed. May please the court. At issue in this appeal are various decisions of the district court pertaining to patent validity and direct and indirect infringement. The main arrows committed by the district court can be summarized into various categories that I'll discuss today. On the question of infringement, did you put on an acquisition of the summary budget of the motion on infringement? Did you put on an expert witness to review the testimony and documents that you said could be first infringement here? No judge, we didn't. What did you put on? You referred to these claim charts, but I don't see that those are evidence. So, is there a claim chart summarized any of the evidence? What's the deposition testimony primarily, Your Honor, as well as? Where do we find the claim charts here? You want to give me just a minute? A 111 through 116? Yes. These are actually the underlying statement of facts in support of our motion for summary judgment. That's one place where we can find the evidence summarized. And as the court can- The claim charts are done

. There are claim charts that summarize the evidence as well. And it's the same evidence that are in these- Where do we find the claim charts that are in the summary? I saw some references to evidence on the claim charts in the living, but I wasn't able to find any claim charts that are in the summary. Your Honor, I'm not sure whether the claim charts themselves are in the record. However, we do have the court referencing those claim charts and stating that NGAD had prepared an element by element analysis of the claims and a comparison to the methods and the systems that were accused of infringement. Are we supposed to make a determination that there is no basis for summary judgment when we don't have the evidence to rely on the evidence? We do judge. In fact, we have, as I said, the statement of facts in support of summary judgment that summarizes all of the features that we claim to satisfy the various claim limitations. But is there a link between the S-quare offer and the claims? Yes, Judge. There wasn't that was submitted below, but the appellees below never challenged the infringement finding of the court based on a lack of a limitation or limitations from the systems and methods accused of infringement. I read it different

. I didn't see them saying is there wasn't an offer to sell something to include claim limitations. And in response to that, you should submit the evidence that there wasn't an offer to sell something to include claim limitations. And I think over S-quare we found that the evidence will pass the case in support of that decision. Again, Your Honor, as I pointed to earlier, the various factors or the various facts that we submitted in support of summary judgment on the claims on which we moved. How is the crime? That's the problem. Here you go. Are you believe that there was a change in age that you submitted evidence to create a genuine issue? Where is it? You say you didn't put on expert witness. The plane charts are here. How are we supposed to agree with you that there was a genuine issue of fact when you haven't shown us what the evidence that raises the genuine issue? Because the decision on summary judgment, Your Honor, was that the district court didn't find a sale of anything specific, not that what was on sale lacked a limitation or limitations from the claims

. And in fact, the court below said, I was never called upon to determine whether a particular system or use infringed. The only thing I was ever called upon to determine. Where is the person in that? You know, it was in a decision denying the appellees their fees. It's page 81296, Your Honor. Yes. And if we look at the first full paragraph, it says the court was never called upon to determine definitively whether anyone had directly infringed. The court was not called upon to say that, for example, live note as used in a particular system offered for sale by the defendants lacked one or more of the claim limitations. The only thing the court was required to do, or was asked to do by the appellees below, was to determine, given it was on their website and the other information they disseminated, whether that was sufficient to constitute an offer of sale of something that could be the basis of an underlying claim for infringement. The only thing that was selling of anything was there because the attorneys were already using live note or case view or some other thing, I mean the court be poured

. So now they're sold. Well, there was evidence at some point that the appellees had sold the software itself, but they had stopped doing that. But there was the offer for sale of a method. In this case, the court reporting method that the appellees and their court reporting independent contractors were providing for the attorneys. The problem is you haven't come up with any of the showments that any evidence in the record that was horrifying and infringement. I mean, that's your job. Your honor, however our job is to appeal the decision as we find it, the decision here was not that a particular claim limitation was missing. That was never anything the district court found. And isn't, in our opinion, the proper subject of the scope of the appeal

. It's simply given what the appellees did in their advertisements, was that sufficient to constitute an offer to sell something. You're complaining about a lot because you're briefed, but as I look at it, I get the sense that the infringement is not really your strong point. You don't need to think you're strong enough to point it out. That would be true, Your Honor. We do believe that you are commenting a little bit on that. Yes, Your Honor. In this case, there are at least two problems that we find with the invalidity decision of the court on the various claims. The first is that either after construing the claims himself or after receiving the party's agreed to construction of claim limitations, the district court then ignored those claim constructions in evaluating the validity of certain claims. We can start with claim 7 of the 395 patent, which the district court can extrude as covering the capability to conduct searches on a real-time transcript while it is being generated

. Later in finding that this claim was anticipated, the district court stated that a system that would permit further searches into the portion of the transcript generated after the user entered search mode certainly would have been more useful, but that is not what claim 7 required. So the prior art indisputably required leaving the real-time transcript to conduct searches. That's the only way that the district court could find that claim 7 of the 395 patent was in fact anticipated, was to ignore its original construction of this claim, which required searching the real-time transcript. And that was the construction that Ngate relied upon in marshalling its evidence for trial. Now for several of the subject claims requiring synchronization of text, video and audio signals. But on that, it takes me a while to co-late through all the different claims and patents, but on that one you had pretty specific public use in Chicago and Phoenix and should have somewhere else. There is no dispute that the CIC courtrooms are prior art judge-writer. When we are not disputing that, the question is what did they actually do in light of specifically? We have testimony of Judge Strand himself telling what he was doing and we have, there is rather extensive record evidence on those uses. But in fact the district court found this

. All of that evidence supported for example in the case of the search claims that you had to leave the real-time transcript to do the searching. And there is really no dispute among the parties as to what the prior art is and what it does. The question is- This was Judge Strand or the district court judge or owner? The district court judge said that you could display the real-time transcript. He also said that the claims are not directed to real-time transcript display per se, which is true. What was missing in the prior art according to you is the ability to display the real-time transcript. In other words, the prior art searched the real-time transcript, but it couldn't display it at the same time. And the court here says, well, it's not necessary because that's not far from the claim here. Actually no judge, the district court actually said more. The district court acknowledged that it was not possible to search the real-time transcript at all

. But that was not what was required by the claim. And in fact the quote that I read before regarding the usefulness of a system that would allow you to search going forward would be useful, but that's not what claim seven requires. Indicates that the district court very clearly believed that claim seven didn't require searching the real-time transcript. In other words, it was okay that one left the real-time mode and went into the search mode basically being able to search what was ever in the memory buffer up to that point. But if there was any additional testimony that came in while the search was being conducted, that was not part of the text that was searchable. So the district court very clearly determined after having said that claim seven requires searching the real-time transcript that that wasn't required anymore and the prior art which didn't allow you to do that anticipated the claim. We also have these other claims as I mentioned about synchronization of text video and audio signals. Now the app police proposed and the parties ultimately agreed that these claims is properly construed required that the audio and video signals be played back during the proceeding which meant that there had to be some synchronization in real time between the audio and video on the one hand and the text on the other. However, in finding these claims anticipated after trial, the district court stated that those claims did not require the real-time synchronization of audio or I'm sorry did not require real-time feeds of the video and audio signals to the attorney terminal

. Now the only way again for the district court to have found this claim anticipated was to disregard the agreed to construction of the parties and that was the construction once again that and get relied upon and marshalling its evidence on the issue of validity. Finally, the district court held the claims one and three of the one eight six patent are fatally indefinite because the specification of that patent fails to disclose structure court corresponding to an analysis means. Yet the parties agreed to use the app police construction once again of this claim limitation and the app police specified the cat system performs the subject analysis which is what is taught in the specification. The district court simply ignored this agreed to construction and finding that these claims were fatally indefinite and briefly on the issue of novelty or honors one another error that the judge committed with regard to a variety of claims is simply filling in the blanks in the prior art in other words ignoring the gaps that were in the prior art as compared to the claims. If we look at claims 26 through 28 of the 952 patent this dealt with the synchronization of audio video and text as well. And the court had construed these claims as requiring a system that converts spoken words to text that is transmitted to user computers and get pointed out to the judge below that the app police were relying on prior art that related to closed captioning broadcast to a television and the television is in computer. The district court said however that we find the distinction between a television screen and a computer screen in material to the substance of the patent. In short, your honors the fact that there was a distinction at all recluded a finding of anticipation between that art. Do you want to save any a year of public time Mr

. Summer? Yes, your honor. Thank you very much. Thank you. Good morning and may I please the court. Your honors were correct in finding and your questions about what evidence did Ngate put on regarding infringement. The fact of the matter is they put on no evidence. They seem to be saying that when you moved for summary judgment you were just saying there wasn't a commercial sale here in the gym for summary judgment on the ground that whatever offers for sale that were or didn't include the claim limitation. That is their statement is flat wrong your honor. Do we have the motion so we can tell from the record? Yes you do. I will say however I was going to quote my reply brief if I could. Quote Ngate offered no evidence and misplor otherwise regarding 19 of the 26 of third of claims. And then quoting this quote is written in Johnston summary judgment must be granted when defendant points that plan of fail put forth evidence supporting a finding that every limitation of third of claim is met by Esquire. That is from our reply brief in the... In the opening brief what we said is they had proven not because you have to below they moved for both offer sale and use it wasn't just offer sale they have now abandoned use on appeal. And we pointed out that there was just no evidence of anything that all they had is they had seven claim charts that consisted of quotes from various third parties whether be live note case catalyst national law journal and they took one from column A one from column B and said see here this is this limitation is met here this limitation is met over there put them all together and you have an infringement we put another numerous problems with that doing it that way first. All of those third party documents were in a misplor here said the law in the seventh circuit is very clear that for some reason must be based on a misplor evidence the cases

. I will say however I was going to quote my reply brief if I could. Quote Ngate offered no evidence and misplor otherwise regarding 19 of the 26 of third of claims. And then quoting this quote is written in Johnston summary judgment must be granted when defendant points that plan of fail put forth evidence supporting a finding that every limitation of third of claim is met by Esquire. That is from our reply brief in the... In the opening brief what we said is they had proven not because you have to below they moved for both offer sale and use it wasn't just offer sale they have now abandoned use on appeal. And we pointed out that there was just no evidence of anything that all they had is they had seven claim charts that consisted of quotes from various third parties whether be live note case catalyst national law journal and they took one from column A one from column B and said see here this is this limitation is met here this limitation is met over there put them all together and you have an infringement we put another numerous problems with that doing it that way first. All of those third party documents were in a misplor here said the law in the seventh circuit is very clear that for some reason must be based on a misplor evidence the cases. And I would say that when you move for some reason did you limit yourself saying there was no commercial offer for sale or did you say that there was no commercial offer for sale or anything that included claim on the case. There was no commercial offer sell anything that included the claim limitation we freely admit and that is what this case about that we offer real time court reporting in gate does not have a patent on real time court reporting but that has been the basis of their other case. So we're just do give us a site where the argument is made that the claim limitations are sad. Well, can I have some time rebuttal if I could I'd like to I can find a bad point of that be over. Excuse me. Well, first off as we stated, end gate when they want to talk about computer terminals talked about computer terminals they talked about computer terminals in. They talked about computer terminals in their specification and when they want to say computer terminals they say computer terminals when they want to say terminal they say terminal and gate the law put forward. So what do you like to do in the specification that suggests that a terminal of those intelligence. All right, thanks, I honor and what what a there's no particular language describing terminal beyond just terminal

. And I would say that when you move for some reason did you limit yourself saying there was no commercial offer for sale or did you say that there was no commercial offer for sale or anything that included claim on the case. There was no commercial offer sell anything that included the claim limitation we freely admit and that is what this case about that we offer real time court reporting in gate does not have a patent on real time court reporting but that has been the basis of their other case. So we're just do give us a site where the argument is made that the claim limitations are sad. Well, can I have some time rebuttal if I could I'd like to I can find a bad point of that be over. Excuse me. Well, first off as we stated, end gate when they want to talk about computer terminals talked about computer terminals they talked about computer terminals in. They talked about computer terminals in their specification and when they want to say computer terminals they say computer terminals when they want to say terminal they say terminal and gate the law put forward. So what do you like to do in the specification that suggests that a terminal of those intelligence. All right, thanks, I honor and what what a there's no particular language describing terminal beyond just terminal. However, end gate the law put in a definition for terminal and in that definition, if I can find it here it says that 8992 a device often equipped with a keyboard and a video. Display through which information can be displayed can can be entered or displayed. As we explained the role that clearly covers a television it says device often this is end gate definition of terminal 8992 in the joint appendix. One of the things that speaking of that in the reply brief end gate makes it. It just says terminal. There's no specification only use the word terminal so the question is what is a terminal does a terminal. What is the context of the specifications talking about computer system. Well, I think so because again in the specification when they want to talk about computer terminals they say computer terminals and these features are all passive features that have no input by the attorney that's the reason why closed captioning anticipated these versus some of the other of a column active features where a transcript or sent remotely and then on the remote transcript you have. So that's not actually by attorneys and the actually attorneys need keyboards and whatnot but on these passive features all the attorney does is look at his as his cathode rate screen is cathode rate to which is a terminal which is a television

. However, end gate the law put in a definition for terminal and in that definition, if I can find it here it says that 8992 a device often equipped with a keyboard and a video. Display through which information can be displayed can can be entered or displayed. As we explained the role that clearly covers a television it says device often this is end gate definition of terminal 8992 in the joint appendix. One of the things that speaking of that in the reply brief end gate makes it. It just says terminal. There's no specification only use the word terminal so the question is what is a terminal does a terminal. What is the context of the specifications talking about computer system. Well, I think so because again in the specification when they want to talk about computer terminals they say computer terminals and these features are all passive features that have no input by the attorney that's the reason why closed captioning anticipated these versus some of the other of a column active features where a transcript or sent remotely and then on the remote transcript you have. So that's not actually by attorneys and the actually attorneys need keyboards and whatnot but on these passive features all the attorney does is look at his as his cathode rate screen is cathode rate to which is a terminal which is a television. And again. Well, you're on about some correct we did make an obvious this argument we made on summary judgment the law on this particular case we said in any event if this is an artist that is certainly obvious because the way the parlor worked right in the case of the crash time that's confirmation hearings which is in the parlor. There is a camera at the confirmation hearings the audio and video were sent to court reporters in v. N Virginia who use the exact same cat systems that they used in course to to put the transcript on the audio and video it was then send out over the airways to be seen on closed caption television screen. The fact is the same reporters doing the exact same thing was an obvious this argument we did raise that below on summary judgment he found is anticipated now trial. Yes, these in particular. I'm sorry on or I didn't realize I was going to point that into us that there we did something to be able to show us where. I don't want to take out the. Again, I will get that on the

. And again. Well, you're on about some correct we did make an obvious this argument we made on summary judgment the law on this particular case we said in any event if this is an artist that is certainly obvious because the way the parlor worked right in the case of the crash time that's confirmation hearings which is in the parlor. There is a camera at the confirmation hearings the audio and video were sent to court reporters in v. N Virginia who use the exact same cat systems that they used in course to to put the transcript on the audio and video it was then send out over the airways to be seen on closed caption television screen. The fact is the same reporters doing the exact same thing was an obvious this argument we did raise that below on summary judgment he found is anticipated now trial. Yes, these in particular. I'm sorry on or I didn't realize I was going to point that into us that there we did something to be able to show us where. I don't want to take out the. Again, I will get that on the. I'm going to rebuttal. The court said that we had raised excuse me wave obvious and below and Ngate has argued that therefore we can't raise it now. Ngate is flat wrong on that. This court has stated that you may only cross appeal where you are seeking to expand your rights. We were not seeking to expand our rights. The lower court found these claims. That's the question. And it seems to be a speed without seeing what you said. As regards the real time searching claim in gate makes the same mistake on all the claims that modify the transcript through real time searching whether it's through

. I'm going to rebuttal. The court said that we had raised excuse me wave obvious and below and Ngate has argued that therefore we can't raise it now. Ngate is flat wrong on that. This court has stated that you may only cross appeal where you are seeking to expand your rights. We were not seeking to expand our rights. The lower court found these claims. That's the question. And it seems to be a speed without seeing what you said. As regards the real time searching claim in gate makes the same mistake on all the claims that modify the transcript through real time searching whether it's through. Putting notes on the transcript what they say is because the prior that we demonstrated in court didn't continue to scroll it cannot anticipate these claims that Ngate is flat wrong on that. If you look in the case of the real time searching what we did is we had the prior system from the 1980s and we had a court report of the second court report who transcribed what I was saying as I went along. Judge can only as a fact finder sat at the attorney terminal and he searched for things as they went by. And the first time we tried searching search for things and when he started searching the transcript stopped scrolling stopped scrolling. But he could search anything including even after the transcript stopped scrolling. And if you look at the at the language of the claim claim 7 of 395. Generating a transcript in real time we showed that we had a court report doing a storing the transcript this transcript was stored on the court reporters computer and the attorney computer accepting during generation of the transcript a first search request. We had that the judge can only put in the search request identifying at least a portion of the store transcript corresponding to the first search request. We did that up came what he searched for displaying during generation of the transcript the at least at least a portion of the transcript identified it doesn't say displaying the entire transcript it says displaying during generation also judge stratified because we had one attorney terminal in our courtroom for demonstration but in Phoenix where there were 10 attorney terminals he stated that when one attorney stopped scrolling to search as a person

. Putting notes on the transcript what they say is because the prior that we demonstrated in court didn't continue to scroll it cannot anticipate these claims that Ngate is flat wrong on that. If you look in the case of the real time searching what we did is we had the prior system from the 1980s and we had a court report of the second court report who transcribed what I was saying as I went along. Judge can only as a fact finder sat at the attorney terminal and he searched for things as they went by. And the first time we tried searching search for things and when he started searching the transcript stopped scrolling stopped scrolling. But he could search anything including even after the transcript stopped scrolling. And if you look at the at the language of the claim claim 7 of 395. Generating a transcript in real time we showed that we had a court report doing a storing the transcript this transcript was stored on the court reporters computer and the attorney computer accepting during generation of the transcript a first search request. We had that the judge can only put in the search request identifying at least a portion of the store transcript corresponding to the first search request. We did that up came what he searched for displaying during generation of the transcript the at least at least a portion of the transcript identified it doesn't say displaying the entire transcript it says displaying during generation also judge stratified because we had one attorney terminal in our courtroom for demonstration but in Phoenix where there were 10 attorney terminals he stated that when one attorney stopped scrolling to search as a person. And all other terminals continued with the transcript scrolling down that is what was required and to speak these claims as Judge can only said is not just that we proved by clear and commencing evidence that we prove by my camera is exact statement beyond all doubt or some such thing that these claims were anticipated. Ingate talks about clean for the 787 patent and claim one of the 639 patent these are genetic translation claims what they require is the way a cat system typically works is a court reporter a court reporter has a job dictionary that has various words that can be translated from the last minute. Ross Benno is not writ readable by by layman and you have the job dictionary it has various words in it and then you have a general dictionary the general dictionary would have words like deposition evidence so on and so forth. If a court reporter was transcribing this proceeding in her job dictionaries you might put this in my put judge rate or what have you specific names for this particular proceeding. If neither of those two dictionaries had a word in it rather than putting out Ross Stennell that layman attorneys judges cannot read the prior art had the ability to put out a phonetic representation of that of that word that's not in the dictionary. Ingate says that that doesn't matter that because there's no hierarchy of libraries but that's just flatly false because the way the software worked is that you started at the top once the general dictionary then the job dictionary and when the phonetic translation indeed we put in evidence software that showed the physical hard coding when it testimony about that software of the phonetic dictionary. They came after the job and the general dictionary were searched. On our cross appeal we stated an opening brief that judge can already was wrong because claim six he found claim six of one forty one not anticipated because of a limitation that wasn't in that claim. Ingate agreed with that but the first time they didn't make the law namely that you could not send messages that the individual attorney terminal that we agree evidence for the law that you could and therefore that should be reversed and I'll say the rest of my time

. And all other terminals continued with the transcript scrolling down that is what was required and to speak these claims as Judge can only said is not just that we proved by clear and commencing evidence that we prove by my camera is exact statement beyond all doubt or some such thing that these claims were anticipated. Ingate talks about clean for the 787 patent and claim one of the 639 patent these are genetic translation claims what they require is the way a cat system typically works is a court reporter a court reporter has a job dictionary that has various words that can be translated from the last minute. Ross Benno is not writ readable by by layman and you have the job dictionary it has various words in it and then you have a general dictionary the general dictionary would have words like deposition evidence so on and so forth. If a court reporter was transcribing this proceeding in her job dictionaries you might put this in my put judge rate or what have you specific names for this particular proceeding. If neither of those two dictionaries had a word in it rather than putting out Ross Stennell that layman attorneys judges cannot read the prior art had the ability to put out a phonetic representation of that of that word that's not in the dictionary. Ingate says that that doesn't matter that because there's no hierarchy of libraries but that's just flatly false because the way the software worked is that you started at the top once the general dictionary then the job dictionary and when the phonetic translation indeed we put in evidence software that showed the physical hard coding when it testimony about that software of the phonetic dictionary. They came after the job and the general dictionary were searched. On our cross appeal we stated an opening brief that judge can already was wrong because claim six he found claim six of one forty one not anticipated because of a limitation that wasn't in that claim. Ingate agreed with that but the first time they didn't make the law namely that you could not send messages that the individual attorney terminal that we agree evidence for the law that you could and therefore that should be reversed and I'll say the rest of my time. Thank you Mr. Anderson. May I please the court to very quick points first of all if we look at page a forty four on the issue of obviousness there's a footnote from the court and it says in addition certain of the argument headings in the defendants opening post trial brief reference possible grounds for invalidity the defendants do not actually address primarily obviousness again the court deems these arguments for fitted the courts correct some of these arguments the defendants are putting forward in the judge relied upon may in fact have been very good to the obviousness arguments and gate doesn't agree but the point is that obviously this was not an argument maintained by the defendants below and it should not have been the decision of the court under the guise of an anticipation finding with regard to the claim charts I apologize for not having these earlier if we turn to page a six twenty we see an example of the claim chart that judge Dyke was asking about and this is in the appellees responsive statement of facts to engage motion for summary judgment and there is a claim chart comparing claim four of the seven eight seven patent of the accused reporting systems on the right hand side are the corresponding features in the accused system with citations to among other things deposition testimony the admissibility of which presumably in a summary judgment context is beyond dispute. And I'm Mr. Nissen said that they contradicted this motion for summary judgment on the grounds that limitations are missing and if we look at the response we see in the first two paragraphs the claim that this is not admissible evidence and in the third paragraph we also have this suggestion that this is admissible hearsay finally in the fourth paragraph paragraph says that there's no evidence that any independent court or actually used any of these features so again the appellees below never chance to be able to see the evidence. And I'm going to challenge the absence of a limitation or limitations from the asserted claims as the basis for a non infringement defense they simply and consistently asked the court to find which it did that whatever was on sale wasn't sufficient or whatever they were doing wasn't sufficient to constitute a legally cognizable offer for sale. Thank you. Thank you Mr. Somerville Mr

. Thank you Mr. Anderson. May I please the court to very quick points first of all if we look at page a forty four on the issue of obviousness there's a footnote from the court and it says in addition certain of the argument headings in the defendants opening post trial brief reference possible grounds for invalidity the defendants do not actually address primarily obviousness again the court deems these arguments for fitted the courts correct some of these arguments the defendants are putting forward in the judge relied upon may in fact have been very good to the obviousness arguments and gate doesn't agree but the point is that obviously this was not an argument maintained by the defendants below and it should not have been the decision of the court under the guise of an anticipation finding with regard to the claim charts I apologize for not having these earlier if we turn to page a six twenty we see an example of the claim chart that judge Dyke was asking about and this is in the appellees responsive statement of facts to engage motion for summary judgment and there is a claim chart comparing claim four of the seven eight seven patent of the accused reporting systems on the right hand side are the corresponding features in the accused system with citations to among other things deposition testimony the admissibility of which presumably in a summary judgment context is beyond dispute. And I'm Mr. Nissen said that they contradicted this motion for summary judgment on the grounds that limitations are missing and if we look at the response we see in the first two paragraphs the claim that this is not admissible evidence and in the third paragraph we also have this suggestion that this is admissible hearsay finally in the fourth paragraph paragraph says that there's no evidence that any independent court or actually used any of these features so again the appellees below never chance to be able to see the evidence. And I'm going to challenge the absence of a limitation or limitations from the asserted claims as the basis for a non infringement defense they simply and consistently asked the court to find which it did that whatever was on sale wasn't sufficient or whatever they were doing wasn't sufficient to constitute a legally cognizable offer for sale. Thank you. Thank you Mr. Somerville Mr. Nissen. It remaining about two minutes. I'm not sure there's any discussions. I don't think there was anything for you to respond to Mr. Nissen there was no discussion of the counter claim. Thank you very much. We take the case under the vice-president and we'll move next to Robin.

Please proceed. May please the court. At issue in this appeal are various decisions of the district court pertaining to patent validity and direct and indirect infringement. The main arrows committed by the district court can be summarized into various categories that I'll discuss today. On the question of infringement, did you put on an acquisition of the summary budget of the motion on infringement? Did you put on an expert witness to review the testimony and documents that you said could be first infringement here? No judge, we didn't. What did you put on? You referred to these claim charts, but I don't see that those are evidence. So, is there a claim chart summarized any of the evidence? What's the deposition testimony primarily, Your Honor, as well as? Where do we find the claim charts here? You want to give me just a minute? A 111 through 116? Yes. These are actually the underlying statement of facts in support of our motion for summary judgment. That's one place where we can find the evidence summarized. And as the court can- The claim charts are done. There are claim charts that summarize the evidence as well. And it's the same evidence that are in these- Where do we find the claim charts that are in the summary? I saw some references to evidence on the claim charts in the living, but I wasn't able to find any claim charts that are in the summary. Your Honor, I'm not sure whether the claim charts themselves are in the record. However, we do have the court referencing those claim charts and stating that NGAD had prepared an element by element analysis of the claims and a comparison to the methods and the systems that were accused of infringement. Are we supposed to make a determination that there is no basis for summary judgment when we don't have the evidence to rely on the evidence? We do judge. In fact, we have, as I said, the statement of facts in support of summary judgment that summarizes all of the features that we claim to satisfy the various claim limitations. But is there a link between the S-quare offer and the claims? Yes, Judge. There wasn't that was submitted below, but the appellees below never challenged the infringement finding of the court based on a lack of a limitation or limitations from the systems and methods accused of infringement. I read it different. I didn't see them saying is there wasn't an offer to sell something to include claim limitations. And in response to that, you should submit the evidence that there wasn't an offer to sell something to include claim limitations. And I think over S-quare we found that the evidence will pass the case in support of that decision. Again, Your Honor, as I pointed to earlier, the various factors or the various facts that we submitted in support of summary judgment on the claims on which we moved. How is the crime? That's the problem. Here you go. Are you believe that there was a change in age that you submitted evidence to create a genuine issue? Where is it? You say you didn't put on expert witness. The plane charts are here. How are we supposed to agree with you that there was a genuine issue of fact when you haven't shown us what the evidence that raises the genuine issue? Because the decision on summary judgment, Your Honor, was that the district court didn't find a sale of anything specific, not that what was on sale lacked a limitation or limitations from the claims. And in fact, the court below said, I was never called upon to determine whether a particular system or use infringed. The only thing I was ever called upon to determine. Where is the person in that? You know, it was in a decision denying the appellees their fees. It's page 81296, Your Honor. Yes. And if we look at the first full paragraph, it says the court was never called upon to determine definitively whether anyone had directly infringed. The court was not called upon to say that, for example, live note as used in a particular system offered for sale by the defendants lacked one or more of the claim limitations. The only thing the court was required to do, or was asked to do by the appellees below, was to determine, given it was on their website and the other information they disseminated, whether that was sufficient to constitute an offer of sale of something that could be the basis of an underlying claim for infringement. The only thing that was selling of anything was there because the attorneys were already using live note or case view or some other thing, I mean the court be poured. So now they're sold. Well, there was evidence at some point that the appellees had sold the software itself, but they had stopped doing that. But there was the offer for sale of a method. In this case, the court reporting method that the appellees and their court reporting independent contractors were providing for the attorneys. The problem is you haven't come up with any of the showments that any evidence in the record that was horrifying and infringement. I mean, that's your job. Your honor, however our job is to appeal the decision as we find it, the decision here was not that a particular claim limitation was missing. That was never anything the district court found. And isn't, in our opinion, the proper subject of the scope of the appeal. It's simply given what the appellees did in their advertisements, was that sufficient to constitute an offer to sell something. You're complaining about a lot because you're briefed, but as I look at it, I get the sense that the infringement is not really your strong point. You don't need to think you're strong enough to point it out. That would be true, Your Honor. We do believe that you are commenting a little bit on that. Yes, Your Honor. In this case, there are at least two problems that we find with the invalidity decision of the court on the various claims. The first is that either after construing the claims himself or after receiving the party's agreed to construction of claim limitations, the district court then ignored those claim constructions in evaluating the validity of certain claims. We can start with claim 7 of the 395 patent, which the district court can extrude as covering the capability to conduct searches on a real-time transcript while it is being generated. Later in finding that this claim was anticipated, the district court stated that a system that would permit further searches into the portion of the transcript generated after the user entered search mode certainly would have been more useful, but that is not what claim 7 required. So the prior art indisputably required leaving the real-time transcript to conduct searches. That's the only way that the district court could find that claim 7 of the 395 patent was in fact anticipated, was to ignore its original construction of this claim, which required searching the real-time transcript. And that was the construction that Ngate relied upon in marshalling its evidence for trial. Now for several of the subject claims requiring synchronization of text, video and audio signals. But on that, it takes me a while to co-late through all the different claims and patents, but on that one you had pretty specific public use in Chicago and Phoenix and should have somewhere else. There is no dispute that the CIC courtrooms are prior art judge-writer. When we are not disputing that, the question is what did they actually do in light of specifically? We have testimony of Judge Strand himself telling what he was doing and we have, there is rather extensive record evidence on those uses. But in fact the district court found this. All of that evidence supported for example in the case of the search claims that you had to leave the real-time transcript to do the searching. And there is really no dispute among the parties as to what the prior art is and what it does. The question is- This was Judge Strand or the district court judge or owner? The district court judge said that you could display the real-time transcript. He also said that the claims are not directed to real-time transcript display per se, which is true. What was missing in the prior art according to you is the ability to display the real-time transcript. In other words, the prior art searched the real-time transcript, but it couldn't display it at the same time. And the court here says, well, it's not necessary because that's not far from the claim here. Actually no judge, the district court actually said more. The district court acknowledged that it was not possible to search the real-time transcript at all. But that was not what was required by the claim. And in fact the quote that I read before regarding the usefulness of a system that would allow you to search going forward would be useful, but that's not what claim seven requires. Indicates that the district court very clearly believed that claim seven didn't require searching the real-time transcript. In other words, it was okay that one left the real-time mode and went into the search mode basically being able to search what was ever in the memory buffer up to that point. But if there was any additional testimony that came in while the search was being conducted, that was not part of the text that was searchable. So the district court very clearly determined after having said that claim seven requires searching the real-time transcript that that wasn't required anymore and the prior art which didn't allow you to do that anticipated the claim. We also have these other claims as I mentioned about synchronization of text video and audio signals. Now the app police proposed and the parties ultimately agreed that these claims is properly construed required that the audio and video signals be played back during the proceeding which meant that there had to be some synchronization in real time between the audio and video on the one hand and the text on the other. However, in finding these claims anticipated after trial, the district court stated that those claims did not require the real-time synchronization of audio or I'm sorry did not require real-time feeds of the video and audio signals to the attorney terminal. Now the only way again for the district court to have found this claim anticipated was to disregard the agreed to construction of the parties and that was the construction once again that and get relied upon and marshalling its evidence on the issue of validity. Finally, the district court held the claims one and three of the one eight six patent are fatally indefinite because the specification of that patent fails to disclose structure court corresponding to an analysis means. Yet the parties agreed to use the app police construction once again of this claim limitation and the app police specified the cat system performs the subject analysis which is what is taught in the specification. The district court simply ignored this agreed to construction and finding that these claims were fatally indefinite and briefly on the issue of novelty or honors one another error that the judge committed with regard to a variety of claims is simply filling in the blanks in the prior art in other words ignoring the gaps that were in the prior art as compared to the claims. If we look at claims 26 through 28 of the 952 patent this dealt with the synchronization of audio video and text as well. And the court had construed these claims as requiring a system that converts spoken words to text that is transmitted to user computers and get pointed out to the judge below that the app police were relying on prior art that related to closed captioning broadcast to a television and the television is in computer. The district court said however that we find the distinction between a television screen and a computer screen in material to the substance of the patent. In short, your honors the fact that there was a distinction at all recluded a finding of anticipation between that art. Do you want to save any a year of public time Mr. Summer? Yes, your honor. Thank you very much. Thank you. Good morning and may I please the court. Your honors were correct in finding and your questions about what evidence did Ngate put on regarding infringement. The fact of the matter is they put on no evidence. They seem to be saying that when you moved for summary judgment you were just saying there wasn't a commercial sale here in the gym for summary judgment on the ground that whatever offers for sale that were or didn't include the claim limitation. That is their statement is flat wrong your honor. Do we have the motion so we can tell from the record? Yes you do. I will say however I was going to quote my reply brief if I could. Quote Ngate offered no evidence and misplor otherwise regarding 19 of the 26 of third of claims. And then quoting this quote is written in Johnston summary judgment must be granted when defendant points that plan of fail put forth evidence supporting a finding that every limitation of third of claim is met by Esquire. That is from our reply brief in the... In the opening brief what we said is they had proven not because you have to below they moved for both offer sale and use it wasn't just offer sale they have now abandoned use on appeal. And we pointed out that there was just no evidence of anything that all they had is they had seven claim charts that consisted of quotes from various third parties whether be live note case catalyst national law journal and they took one from column A one from column B and said see here this is this limitation is met here this limitation is met over there put them all together and you have an infringement we put another numerous problems with that doing it that way first. All of those third party documents were in a misplor here said the law in the seventh circuit is very clear that for some reason must be based on a misplor evidence the cases. And I would say that when you move for some reason did you limit yourself saying there was no commercial offer for sale or did you say that there was no commercial offer for sale or anything that included claim on the case. There was no commercial offer sell anything that included the claim limitation we freely admit and that is what this case about that we offer real time court reporting in gate does not have a patent on real time court reporting but that has been the basis of their other case. So we're just do give us a site where the argument is made that the claim limitations are sad. Well, can I have some time rebuttal if I could I'd like to I can find a bad point of that be over. Excuse me. Well, first off as we stated, end gate when they want to talk about computer terminals talked about computer terminals they talked about computer terminals in. They talked about computer terminals in their specification and when they want to say computer terminals they say computer terminals when they want to say terminal they say terminal and gate the law put forward. So what do you like to do in the specification that suggests that a terminal of those intelligence. All right, thanks, I honor and what what a there's no particular language describing terminal beyond just terminal. However, end gate the law put in a definition for terminal and in that definition, if I can find it here it says that 8992 a device often equipped with a keyboard and a video. Display through which information can be displayed can can be entered or displayed. As we explained the role that clearly covers a television it says device often this is end gate definition of terminal 8992 in the joint appendix. One of the things that speaking of that in the reply brief end gate makes it. It just says terminal. There's no specification only use the word terminal so the question is what is a terminal does a terminal. What is the context of the specifications talking about computer system. Well, I think so because again in the specification when they want to talk about computer terminals they say computer terminals and these features are all passive features that have no input by the attorney that's the reason why closed captioning anticipated these versus some of the other of a column active features where a transcript or sent remotely and then on the remote transcript you have. So that's not actually by attorneys and the actually attorneys need keyboards and whatnot but on these passive features all the attorney does is look at his as his cathode rate screen is cathode rate to which is a terminal which is a television. And again. Well, you're on about some correct we did make an obvious this argument we made on summary judgment the law on this particular case we said in any event if this is an artist that is certainly obvious because the way the parlor worked right in the case of the crash time that's confirmation hearings which is in the parlor. There is a camera at the confirmation hearings the audio and video were sent to court reporters in v. N Virginia who use the exact same cat systems that they used in course to to put the transcript on the audio and video it was then send out over the airways to be seen on closed caption television screen. The fact is the same reporters doing the exact same thing was an obvious this argument we did raise that below on summary judgment he found is anticipated now trial. Yes, these in particular. I'm sorry on or I didn't realize I was going to point that into us that there we did something to be able to show us where. I don't want to take out the. Again, I will get that on the. I'm going to rebuttal. The court said that we had raised excuse me wave obvious and below and Ngate has argued that therefore we can't raise it now. Ngate is flat wrong on that. This court has stated that you may only cross appeal where you are seeking to expand your rights. We were not seeking to expand our rights. The lower court found these claims. That's the question. And it seems to be a speed without seeing what you said. As regards the real time searching claim in gate makes the same mistake on all the claims that modify the transcript through real time searching whether it's through. Putting notes on the transcript what they say is because the prior that we demonstrated in court didn't continue to scroll it cannot anticipate these claims that Ngate is flat wrong on that. If you look in the case of the real time searching what we did is we had the prior system from the 1980s and we had a court report of the second court report who transcribed what I was saying as I went along. Judge can only as a fact finder sat at the attorney terminal and he searched for things as they went by. And the first time we tried searching search for things and when he started searching the transcript stopped scrolling stopped scrolling. But he could search anything including even after the transcript stopped scrolling. And if you look at the at the language of the claim claim 7 of 395. Generating a transcript in real time we showed that we had a court report doing a storing the transcript this transcript was stored on the court reporters computer and the attorney computer accepting during generation of the transcript a first search request. We had that the judge can only put in the search request identifying at least a portion of the store transcript corresponding to the first search request. We did that up came what he searched for displaying during generation of the transcript the at least at least a portion of the transcript identified it doesn't say displaying the entire transcript it says displaying during generation also judge stratified because we had one attorney terminal in our courtroom for demonstration but in Phoenix where there were 10 attorney terminals he stated that when one attorney stopped scrolling to search as a person. And all other terminals continued with the transcript scrolling down that is what was required and to speak these claims as Judge can only said is not just that we proved by clear and commencing evidence that we prove by my camera is exact statement beyond all doubt or some such thing that these claims were anticipated. Ingate talks about clean for the 787 patent and claim one of the 639 patent these are genetic translation claims what they require is the way a cat system typically works is a court reporter a court reporter has a job dictionary that has various words that can be translated from the last minute. Ross Benno is not writ readable by by layman and you have the job dictionary it has various words in it and then you have a general dictionary the general dictionary would have words like deposition evidence so on and so forth. If a court reporter was transcribing this proceeding in her job dictionaries you might put this in my put judge rate or what have you specific names for this particular proceeding. If neither of those two dictionaries had a word in it rather than putting out Ross Stennell that layman attorneys judges cannot read the prior art had the ability to put out a phonetic representation of that of that word that's not in the dictionary. Ingate says that that doesn't matter that because there's no hierarchy of libraries but that's just flatly false because the way the software worked is that you started at the top once the general dictionary then the job dictionary and when the phonetic translation indeed we put in evidence software that showed the physical hard coding when it testimony about that software of the phonetic dictionary. They came after the job and the general dictionary were searched. On our cross appeal we stated an opening brief that judge can already was wrong because claim six he found claim six of one forty one not anticipated because of a limitation that wasn't in that claim. Ingate agreed with that but the first time they didn't make the law namely that you could not send messages that the individual attorney terminal that we agree evidence for the law that you could and therefore that should be reversed and I'll say the rest of my time. Thank you Mr. Anderson. May I please the court to very quick points first of all if we look at page a forty four on the issue of obviousness there's a footnote from the court and it says in addition certain of the argument headings in the defendants opening post trial brief reference possible grounds for invalidity the defendants do not actually address primarily obviousness again the court deems these arguments for fitted the courts correct some of these arguments the defendants are putting forward in the judge relied upon may in fact have been very good to the obviousness arguments and gate doesn't agree but the point is that obviously this was not an argument maintained by the defendants below and it should not have been the decision of the court under the guise of an anticipation finding with regard to the claim charts I apologize for not having these earlier if we turn to page a six twenty we see an example of the claim chart that judge Dyke was asking about and this is in the appellees responsive statement of facts to engage motion for summary judgment and there is a claim chart comparing claim four of the seven eight seven patent of the accused reporting systems on the right hand side are the corresponding features in the accused system with citations to among other things deposition testimony the admissibility of which presumably in a summary judgment context is beyond dispute. And I'm Mr. Nissen said that they contradicted this motion for summary judgment on the grounds that limitations are missing and if we look at the response we see in the first two paragraphs the claim that this is not admissible evidence and in the third paragraph we also have this suggestion that this is admissible hearsay finally in the fourth paragraph paragraph says that there's no evidence that any independent court or actually used any of these features so again the appellees below never chance to be able to see the evidence. And I'm going to challenge the absence of a limitation or limitations from the asserted claims as the basis for a non infringement defense they simply and consistently asked the court to find which it did that whatever was on sale wasn't sufficient or whatever they were doing wasn't sufficient to constitute a legally cognizable offer for sale. Thank you. Thank you Mr. Somerville Mr. Nissen. It remaining about two minutes. I'm not sure there's any discussions. I don't think there was anything for you to respond to Mr. Nissen there was no discussion of the counter claim. Thank you very much. We take the case under the vice-president and we'll move next to Robin