Chris Soft. Okay, Mr. Anderson, we're ready when you are. Okay, here are. May I please the court? In order to draft the district's voice opinion, I'll start out by accessing the unique issue and move on to the issue of automatic automatically. Unique, why is that even before us? Well, your honor, Microsoft has stated a position that the court aired in the deficit. The court entered some re-judgment on the basis of its interpretation of automatic. Microsoft has given us another reason to uphold that some re-judgment motion, which wasn't decided by the district court, and our court has repeatedly said there's really not need jurisdiction for that kind of cross-section. There isn't a cross-claim entitled in that circumstance. So why don't you stick with what the district judge decided and what's under appeal here, which is the automatically unique if it comes up at all, is an alternative basis for reaching the same result of what the district court decided. Let's go there. I think I have to do that. On the issue of automatic, the district court aired because what it essentially did is equate automatic, the term automatic, with the notion of secrecy. And if we look at the district court's opinion, what we see is... Well, the prompt comes up on the Microsoft version, and it says, do you want to activate Windows and it gives you three options, only one of the three options, even use the Internet
. So how does that automatically determine whether one or more of some plurality of computers is operable for communicating with the Internet? Well, your Honor, if you elect the other options, the options that your Honor is going to do. Pick another phone call and call in the customer service agent. For example, what does that have to do with automatically determining that the Internet's operable? Absolutely nothing. And if you elect that option, you're not even practicing the invention. You're not practicing the invention until you do elect to activate over the Internet. Now, with that happens, and keep in mind, the National Party is very specific about what it requires to be automatic. And there's two sub-processes. One is the determination that the computer is capable of communicating with the Internet. The other is having the ability, not necessarily doing it, but having the ability to transfer identification data over the Internet. And so the issue before the District Court was whether those two sub-processes are performed automatically in the accused device. But you have a user prompt interrupting the automaticity here. Well, I disagree with that, Your Honor, because the automaticity, if you will. The user has to do something, right? You agree with that. Yes, of course. How is that automatically determining whether their computer communicates with the Internet? Well, in the same way. Is the user getting under the desk and checking to see whether his computer is connected to the Internet? No, and that's the precise point
. If the user had to do that or had to do some manual step to figure out whether his or her computer was connected to the Internet, then there would be an argument that's not done on it. But the point is once the user initiates the action by clicking the mouse that says, I want to activate over the Internet. Once that happens and that's the trigger, then the computer automatically determines whether it's possible for communicating with the Internet. It might be a source of darkness. Well, that's always automatic then. Every time I turn my computer on its automatic then. Because I push the button, it connects to the Internet. Well, today. In every instance, then it's automatic. So your automatic doesn't mean anything. Well, I think it does. If it does, then it must mean what the district court says, right? And the user interruption of that automaticity reaches the same result as the district court did. But you're on the wrong, I take issue with the notion that there's an interruption of the automaticity. Because the function that is to be automatic is the determination of, for example, the determination of whether it can communicate with the Internet. That doesn't even start to happen until the user decides to use the program and to activate over the Internet. So there is no interruption
. There's nothing that comes in and interrupts it. Well, let me just, I'm getting a little more confused the more we say rather than that. Does the user have or not have control over when and whether to operate the, to determine Internet operability? The user does. He has ultimately, ultimately, and has that kind of control. Well, what is that? Well, let me give you an important example. My car has no night transmission. But I ultimately control back those processes. In fact, I can even control it to the point of looking at my tag on or listening to the home of the engine. And deciding when your change is about to be made, to be made, if I wanted to make that gear change, I could accelerate allowing the change to be made. If I don't, I can back off the accelerator and gear changes it may. So ultimately, ultimately, I have control over those sub-processes. But that doesn't, that doesn't remove the fact that there be performed automatically by the machine at the machine level. And, you know, a judge-rader's example, everything that we, that we talk about has this, this, this property. Every machine that we call automatic has some sort of trigger that human user, it pushes a button or flips a lever or does something to initiate the processes. And then thereafter, then those processes are performed automatically. If we interpret the, the, the term automatic the way the district court did, then almost everything that we describe, every mandate machine that we describe is automatic, and no longer be described is automatic
. Because there's always ultimate user control or influence. But let's, let's, the spec talks about this invention in the abstract and in column five line 26 and 27, it says, it's not even going to be noticeable to the user. It stresses again, unnoticeable to the user. The user has to initiate this. This is unnoticeable. But there's a core, there's a core point of error, I think, with the district court made, made it mistake. The court construed the invention improperly. The court read that which says preferably, the user isn't going to see it. The court read that provision and said, well, this device has operated the secret. And the national invention is not necessarily designed to operate a secret. It can do that. But it's certainly not required to operate a secret. And what managed to deal with here, I think is a balance saying this is, this is quite common, is that there's no right or wrong way to do something. But you're balancing, you're balancing competing, competing issues and competing concerns. So for example, if someone goes into bio cards, they don't want a really fast car. And they try to sell them a Ferrari
. And the buyer says, well, what's up in this really comfortable? I want both. You can't have both in the same car. And I think Nash is recognizing that in some ways, the less the, would be pirate knows about the, the, the piracy system, how it operates and what it does. And that has some value. However, that has to be balanced against the fact that, and Nash points this out specifically, that has to be balanced against the fact that operating in absolute secrecy, not telling the user what you're doing, may be one of the violation of law. Now, at the time this patent was written, this is a very nascent area of the technology. And it was unclear what even the US courts, the US Congress would say about the reality of monitoring someone in complete secret. And Nash recognizes that now I think since that time, there's been some laws that have come out of Congress, they would allow that, but still an open question in your other places. In addition to that, there's a question of user satisfaction. How will the customers respond to this sort of secret monitoring? So Nash says in light of all these problems, it may be advisable to get explicit, explicit authorization as opposed to implicit authorization from the user. Now, the only way to get explicit authorization is to want to communicate to the user. What we're going to do is monitor. And then once the user knows this kind of monitoring is going to be done, then a some sort of representation back from the user saying, okay, I agree to it. And that wasn't that the basis of patentability, that the intervening step of saying I'm going to operate automatically isn't practiced. Now that all your honor, this term automatically and this issue of it operating automatically is completely irrelevant to patentability. The patent would have been allowed if this term hadn't been in there
. Now, I think the reason it isn't there. But it isn't there. It cannot, it should not be read out. I'm not arguing that. But what I am suggesting to the court that it has, it does not go to the court of patentability. It really has nothing to do with patentability. The reason is in there, I think it's what Judge Rayer was a little bit too earlier, when he said, well, I turn my computer out of course it will automatically determine our internet settings. We expect that today. Given the technology, given the point where the technology is, we expect to turn our computers on and for the community, for the computer to determine what we're connected to the internet. That wasn't true 10, 15 years ago, where people had to take these coupling devices and a couple of modules fall and actually die in and all these various sorts of things. So what's happening is the technology has moved forward so that we expect these systems to be automated and there's no reason for them not to be, it is the most efficient way to go. But the point here is the court lost focus on what really automatic means. The court agreed, an even Microsoft agreed, that it carries its common ordinary meaning and the common ordinary meaning of automatic is never secret. And it is never that the user has no ultimate control at any level because as we pull it out of the break and is this court playing out of college now? There are often currencies where, well, almost always, where the user has ultimate control over the device in every automatic machine. And you know, you take this to its logic extreme. Well, the user even controls that ultimately will be by determining whether to use the program or to be trying on the computer
. So there's always that kind of control and to adopt that reasoning, we'll read out of, read out the entire meaning of what automatic is intended to be made and it will take its forward and important limitations that you find in the arm of there. I see that my time is almost done. Yes, we'll save the rest of your time for rebuttal. Thank you, Mr. Anderson. Mr. Brookhart. Yes, ma'am. May I please the court? I'm older Brookhart and I'm representing Microsoft with me, our pathologist and prop record of Schroggarty Bacon and Andy Culver of Microsoft. There are three issues before the court today. Two of those, well, I was going to say two of those have been discussed, one of those automatically has been discussed by Council for Nange. The other one is not interfering. The third issue was in our cross appeal addressing unique in view of the knowledge decision. I would submit that if the court wishes to allow us to argue the issue of unique, which as an old term of grounds of performance. Let's start with the ground that's been presented by Mr. Anderson
. That's right, I would like to do the automatically and not interfering first. I'd like to indicate a little help to the court in understanding the differences between the Nance invention and Microsoft product activation is to look at just what they really color. The Nance invention and Microsoft product activation have a fundamental difference. That fundamental difference was alluded to earlier by the refrigerator. In that the Nance invention is directed to a system that gathers and transmits information. It does it passively, it operates in the background. It's hopefully it's unnoticed so that there's no motivation for the user to try to go in and disable or remove the Nance program. But maybe the spec does use the word preferably as the other council pointed out. Yes, it does use preferably in some places. It does not use it in other places. At the beginning of the summary of the invention, it explicitly states the three terms that I just mentioned, passive use, and another appearance, not in a preferable mode. If you read the whole tenor of the spec, it is describing what is really a spyware type of system. That is in direct contrast to the Microsoft product activation system, which is really an up front, it's an in-your-face system, which puts a screen up after you've loaded each program that you purchased and loaded. And will not let you proceed without activating the system. You have a choice, you can either activate on the telephone, you can activate by the internet, or you can put off and activate later. But you have to make the decision
. That decision clearly makes the system not automatic. The court be fine automatically as acting or operating in a manner essentially independent of external influence or control. Court had to look for a definition because there's no real discussion of automatic in the specification. There's clearly no discussion in the specification or suggestion that automatic means the removal of manual steps. The claims in the match pattern, the method claims, are all method claims, which are performed by computer programs. As again, as the iterator pointed out, those steps are all done by the computer. There's no indication that any of the steps are done in any other fashion. The only reasonable meaning for the word automatic in connection with the claims of the match pattern is that it is done in a fashion, in conjunction with the gallery and sending of information in a system or in a fashion. That is not intended to raise the user's interest. Clearly, that's in contrast to the Microsoft system, which puts a screen off, I'll refer you to page 28 of the Blueberry, that shows that screen. I think you've all seen that. And the user cannot get beyond that screen without making a choice. But all the user has to do is instruct the computer, all right, proceed automatically to gather and transmit. If the user instructs the computer to activate, then the computer will do the rest of the program, which will gather the information, it will check to see if there's an internet connection and it will transmit the data. But if the user never makes that instruction, he will never be able to proceed in the longer on a user program. But if the user issues that instruction, it doesn't then literally read on that clause
. No, no, it does not because in order to have a meaning for the word automatic, it has to have something to do with the user having an option to influence or to control the action that's going to follow. That's exactly the position that the district court took and is throughout the district court's opinion. We believe that that is correct. That either an action has to be the base upon what's disclosed in the specification. And in the Microsoft system, the product activation will not go forward. The user will not be able to use the program after the grace period. Unless the user has made the choice to activate either through the computer, through the internet or on the telephone. But this is a factual issue or a legal issue. If it's factual, the district court resolve facts on some rejections, but that's a problem. And when you've argued it up to so far has been a factual issue, you argue with the Microsoft program. That's our fact. No, you're on your own. There's no question of between the parties as to what the program does. No, but the ultimate question of infringement, whether those facts as understood would be construed to infringe under the claim construction of the district court. That ultimate factual decision is left to a fact finder and is probably not adjudicable on some rejectment. Unless you're telling me this is wholly a claim construction. In a claim construction context, what wants the court construed the claim to mean without user influence. I think there's no further fact to see. And so it would be available to disposition on some rejectment. I think. Is use of the word secret that's thrown around here. Is it your view that secret is necessarily synonymous with not automatic or automatic or not automatic? No, secret does not even be used. In fact, the national pattern intensive to be to operate in the background, get intensive to the program to move forward in any we believe in a secret matter. But it can be that is not required right in the national pattern and we're not suggesting that it is. I think that's clearly a preferred body. But it does contemplate the user not having the option to allow or to disallow the information to be forward over the internet. And that is the automatic control. Mass wants automatically. He wants the information to be gathered and sent and the user has no control to stop it. And the bottom line is, is a pirate is not going to affirmatively answer a question. Yes, send information to the pirate across the internet. I'd like to move on to to the term not interfering, which is also an issue not interfering is involved with claim 12
. In a claim construction context, what wants the court construed the claim to mean without user influence. I think there's no further fact to see. And so it would be available to disposition on some rejectment. I think. Is use of the word secret that's thrown around here. Is it your view that secret is necessarily synonymous with not automatic or automatic or not automatic? No, secret does not even be used. In fact, the national pattern intensive to be to operate in the background, get intensive to the program to move forward in any we believe in a secret matter. But it can be that is not required right in the national pattern and we're not suggesting that it is. I think that's clearly a preferred body. But it does contemplate the user not having the option to allow or to disallow the information to be forward over the internet. And that is the automatic control. Mass wants automatically. He wants the information to be gathered and sent and the user has no control to stop it. And the bottom line is, is a pirate is not going to affirmatively answer a question. Yes, send information to the pirate across the internet. I'd like to move on to to the term not interfering, which is also an issue not interfering is involved with claim 12. Is that your across appeal? No, that is the main appeal. What's the term on cross appeal? Man, you're right. The term on cross appeal is unique. Okay. In terms of not interfering, we can't believe that the court was correct in seven-ish or not interfering. The court defying not interfering is to be not to create a hindrance or an obstacle. Claim 12 requires that the computer retain which is installed on the first on the user's computer not interfere with the use of the underlying programs. The parties, I believe, are an agreement that product activation does interfere. The question, and if you look in in the blue brief again at page 37 and 38, there are screenshots. If you get to the conclusion of the grace theory and you have not successfully activated product activation, those screenshots appear one from Windows as an example and one from Office as another example. And it is clear from those screenshots that with Windows, you have no option to further use the program. You must activate or turn the computer off. That's the only two options. With Office, the two options that you have are to activate or to continue to use the program, but it ain't highly reduced the functionality of you're not allowed to do anything in terms of saving or creating the document. But Mr. Nash is arguing that it's preposterous, I think, or absurd, to
. Is that your across appeal? No, that is the main appeal. What's the term on cross appeal? Man, you're right. The term on cross appeal is unique. Okay. In terms of not interfering, we can't believe that the court was correct in seven-ish or not interfering. The court defying not interfering is to be not to create a hindrance or an obstacle. Claim 12 requires that the computer retain which is installed on the first on the user's computer not interfere with the use of the underlying programs. The parties, I believe, are an agreement that product activation does interfere. The question, and if you look in in the blue brief again at page 37 and 38, there are screenshots. If you get to the conclusion of the grace theory and you have not successfully activated product activation, those screenshots appear one from Windows as an example and one from Office as another example. And it is clear from those screenshots that with Windows, you have no option to further use the program. You must activate or turn the computer off. That's the only two options. With Office, the two options that you have are to activate or to continue to use the program, but it ain't highly reduced the functionality of you're not allowed to do anything in terms of saving or creating the document. But Mr. Nash is arguing that it's preposterous, I think, or absurd, to... We're talking about the first routine issue. That's supposed to be really the issue in this regard to this term. Mr. Nash says that what you're saying is that the first routine is everything that occurs on the users' program, and that doesn't make any sense. I cement that his position doesn't make any sense when he says that. I think the only thing that we really are this year is what is the first routine and that is the first routine interfere. If you look at the specification of the Nash patent at column 3 lines 32 to 56, there is a recitation concerning the first computer routine. And if this is just about every step that Mr. Nash discloses in his patent to be performed on the users' computer, he uses first routine to differentiate what's done on the users' computer from the second routine, which is what is done on the server, which collects the information. At the other end of the internet. Claim 12 only provides that a first routine is installed on the computer, and then it goes on and provides that that first routine not interfere. And it also goes on and provides that one of the functions for the first routine is to determine the unique hardware-ident wire. So let me just tie that back to Judge Raider's question about summary judgment and questions of fact, questions of law. I mean, this issue, this case seems to have been teed up as a summary judgment, just an infringement question, and not on a claim construction
... We're talking about the first routine issue. That's supposed to be really the issue in this regard to this term. Mr. Nash says that what you're saying is that the first routine is everything that occurs on the users' program, and that doesn't make any sense. I cement that his position doesn't make any sense when he says that. I think the only thing that we really are this year is what is the first routine and that is the first routine interfere. If you look at the specification of the Nash patent at column 3 lines 32 to 56, there is a recitation concerning the first computer routine. And if this is just about every step that Mr. Nash discloses in his patent to be performed on the users' computer, he uses first routine to differentiate what's done on the users' computer from the second routine, which is what is done on the server, which collects the information. At the other end of the internet. Claim 12 only provides that a first routine is installed on the computer, and then it goes on and provides that that first routine not interfere. And it also goes on and provides that one of the functions for the first routine is to determine the unique hardware-ident wire. So let me just tie that back to Judge Raider's question about summary judgment and questions of fact, questions of law. I mean, this issue, this case seems to have been teed up as a summary judgment, just an infringement question, and not on a claim construction. It seems like on basic claim constructions, the parties, there was no dispute. But with respect to routine, I mean, is what we've been talking about here and what the briefs are talking about in terms of what's the first routine and what's not the first routine. Is that a question of fact or is that a question of claim construct, a question of law given the term in the spec? I think if the party said, had understood the Markman hearing that there was going to be an issue over first routine that that would have been presented as a question of claim construction as to the mean of first routine. I can submit that there is no discrepancy as to the mean of first routine. It's clearly indicated in the national pattern that the first routine applies to that which is done. In connection with the anti-marsy program. Well, you may say that you— I'm sorry to interrupt, but you may say that there's no discrepancy, but as you just acknowledged in our earlier conversation, Mr. Nash is calling your view of what consists of the first routine is absurdity. You're saying his is absurd. So there clearly is a dispute, is there not in terms of what activities constitute the first routine? At this point, there's a dispute as to what the first routine means. I guess an alternative way of phrasing that would be a dispute as to what falls within the first routine after you define the means. We believe that the first routine is clearly defined in the national pattern as that which is done by the anti-marsy program on the user's computer. The claim plug uses the term comprising which leads it open ended. There's no reason to restrict it in any fashion. And once that definition of first routine, it is employed. There's no question, there's no dispute as to the facts as to what the Microsoft system does
. It seems like on basic claim constructions, the parties, there was no dispute. But with respect to routine, I mean, is what we've been talking about here and what the briefs are talking about in terms of what's the first routine and what's not the first routine. Is that a question of fact or is that a question of claim construct, a question of law given the term in the spec? I think if the party said, had understood the Markman hearing that there was going to be an issue over first routine that that would have been presented as a question of claim construction as to the mean of first routine. I can submit that there is no discrepancy as to the mean of first routine. It's clearly indicated in the national pattern that the first routine applies to that which is done. In connection with the anti-marsy program. Well, you may say that you— I'm sorry to interrupt, but you may say that there's no discrepancy, but as you just acknowledged in our earlier conversation, Mr. Nash is calling your view of what consists of the first routine is absurdity. You're saying his is absurd. So there clearly is a dispute, is there not in terms of what activities constitute the first routine? At this point, there's a dispute as to what the first routine means. I guess an alternative way of phrasing that would be a dispute as to what falls within the first routine after you define the means. We believe that the first routine is clearly defined in the national pattern as that which is done by the anti-marsy program on the user's computer. The claim plug uses the term comprising which leads it open ended. There's no reason to restrict it in any fashion. And once that definition of first routine, it is employed. There's no question, there's no dispute as to the facts as to what the Microsoft system does. Clearly, the interference occurs from the user's computer as an example. Well, if the user never attempts to even activate, he never authorizes an activation across the internet, then his computer will be shut down clearly interference. But doesn't it shut down in your system also? I didn't understand the question. It doesn't shut down. When the product activation program shuts down, doesn't it shut down the windows also? Product activation. If it's not properly activated. We will solve the use of windows and give the user the choice of activating or at that time showing the computer. It does not shut down windows itself. If you will sit there with that screenshot until the user makes a choice. So the distinction in your view is whether it's automatic again. The distinction with this in terms of not interfering is that the first routine, which is the routine on the user's computer, puts up a screen shot from which the user cannot escape unless he activates successfully. And can no longer use the program. Okay. Am I correct in the end? I'm saying the court is not wish to hear argument on. You mean? We have 30 seconds left. So I think you're correct
. Clearly, the interference occurs from the user's computer as an example. Well, if the user never attempts to even activate, he never authorizes an activation across the internet, then his computer will be shut down clearly interference. But doesn't it shut down in your system also? I didn't understand the question. It doesn't shut down. When the product activation program shuts down, doesn't it shut down the windows also? Product activation. If it's not properly activated. We will solve the use of windows and give the user the choice of activating or at that time showing the computer. It does not shut down windows itself. If you will sit there with that screenshot until the user makes a choice. So the distinction in your view is whether it's automatic again. The distinction with this in terms of not interfering is that the first routine, which is the routine on the user's computer, puts up a screen shot from which the user cannot escape unless he activates successfully. And can no longer use the program. Okay. Am I correct in the end? I'm saying the court is not wish to hear argument on. You mean? We have 30 seconds left. So I think you're correct. Thank you. Thank you, Mr. Brachart. Mr. Anderson. I believe this forced decision in the college net case that came out last summer is controlling and indistinguishable from the insta case. In the college net case, the same argument was advanced in that. Different claims. There were different claims. That's true. That's a pretty significant difference, isn't it? I don't believe it is because I was on that case as well. So we're talking about their conveying information informed that can be used by various universities once it's put up on the internet. Yes, that's somewhat different than whether a user prompt interrupts the conveyance of security information. But the same argument was advanced, I believe, in that case. The argument was advanced that by having to click a mouse, the user has ultimate control over whether this information is populated to these other applications. That was the case in college net here
. Thank you. Thank you, Mr. Brachart. Mr. Anderson. I believe this forced decision in the college net case that came out last summer is controlling and indistinguishable from the insta case. In the college net case, the same argument was advanced in that. Different claims. There were different claims. That's true. That's a pretty significant difference, isn't it? I don't believe it is because I was on that case as well. So we're talking about their conveying information informed that can be used by various universities once it's put up on the internet. Yes, that's somewhat different than whether a user prompt interrupts the conveyance of security information. But the same argument was advanced, I believe, in that case. The argument was advanced that by having to click a mouse, the user has ultimate control over whether this information is populated to these other applications. That was the case in college net here. The argument is because the user has an ultimate control of whether the user even activates all over the internet. And if the user chooses not to activate all the internet, then of course these subprocesses never occur. Since the user has that kind of control, the argument is advanced by Microsoft and it was bought into by the district court. But that means it's not automatic. And the problem is that what's happened is there's been a term I think in actually characterizing invention. And then stretch automatic around that mischaracterization. Because if you look, we look first at the question of the very issue of, well, did the court adopt an incorrect definition? And I think the more elegant definition would have been the one that the court dealt with in the college net case. We concluded that the court's definition was not incorrect because it came straight out of the American Heritage Dictionary. And when you look at that dictionary and the examples that it gives, it's clear that the definition is not intended to convey the notion that the user doesn't have any ultimate control. And they give examples like an automatic pilot or a machine gun or automatic machine gun. These types of examples are found in the dictionary, in the very dictionary, from which the court extracted these definitions. Without external influence, isn't there some external influence from the user? There's no more external influence in this case than there is in the evidence. You choose to abort the whole thing. You can call them up on the phone. And nothing goes over the internet ever. But in the case of an automatic pilot in your honor, you can choose to abort that entire process
. The argument is because the user has an ultimate control of whether the user even activates all over the internet. And if the user chooses not to activate all the internet, then of course these subprocesses never occur. Since the user has that kind of control, the argument is advanced by Microsoft and it was bought into by the district court. But that means it's not automatic. And the problem is that what's happened is there's been a term I think in actually characterizing invention. And then stretch automatic around that mischaracterization. Because if you look, we look first at the question of the very issue of, well, did the court adopt an incorrect definition? And I think the more elegant definition would have been the one that the court dealt with in the college net case. We concluded that the court's definition was not incorrect because it came straight out of the American Heritage Dictionary. And when you look at that dictionary and the examples that it gives, it's clear that the definition is not intended to convey the notion that the user doesn't have any ultimate control. And they give examples like an automatic pilot or a machine gun or automatic machine gun. These types of examples are found in the dictionary, in the very dictionary, from which the court extracted these definitions. Without external influence, isn't there some external influence from the user? There's no more external influence in this case than there is in the evidence. You choose to abort the whole thing. You can call them up on the phone. And nothing goes over the internet ever. But in the case of an automatic pilot in your honor, you can choose to abort that entire process. You can flip it off and fly the plane yourself in the case of an automatic transmission to use your example. But one of those European ones that I can decide when it switches gears. Yes. It would still be an automatic transmission or not because I'm manually transmitting. It would still have an automatic transmission. I suppose that if you shifted the gears physically, you would argue that now I'm operating in the manual mode. But I think the issue here is, the first question comes up, what is it that has to be automatic? And there's a specific, it doesn't say the whole process is automatic or it self-initiates, initiates automatically. What it says is these two sub-processes have to be automatic. And what's interesting is Microsoft itself, and its own document is on the web, on its website, says Microsoft Cryic Activation performs these very processes automatically. We automatically determine your internet set. We automatically determine whether you're connected to the internet. If you're not, we try to find your modem and make a connection. And if you are, we go ahead and process the connection and transfer the data. So even Microsoft says, I think this is telling because if we ask the skilled artists, what is met by this term automatic? Without any gloss on this, they say, of course, that there's going to be some amount of user control pushing a button, that sort of thing doesn't make it not automatic. So in conclusion, I do think that the same argument was advanced in the College of Net Hades. I think that the spy one Mr
. You can flip it off and fly the plane yourself in the case of an automatic transmission to use your example. But one of those European ones that I can decide when it switches gears. Yes. It would still be an automatic transmission or not because I'm manually transmitting. It would still have an automatic transmission. I suppose that if you shifted the gears physically, you would argue that now I'm operating in the manual mode. But I think the issue here is, the first question comes up, what is it that has to be automatic? And there's a specific, it doesn't say the whole process is automatic or it self-initiates, initiates automatically. What it says is these two sub-processes have to be automatic. And what's interesting is Microsoft itself, and its own document is on the web, on its website, says Microsoft Cryic Activation performs these very processes automatically. We automatically determine your internet set. We automatically determine whether you're connected to the internet. If you're not, we try to find your modem and make a connection. And if you are, we go ahead and process the connection and transfer the data. So even Microsoft says, I think this is telling because if we ask the skilled artists, what is met by this term automatic? Without any gloss on this, they say, of course, that there's going to be some amount of user control pushing a button, that sort of thing doesn't make it not automatic. So in conclusion, I do think that the same argument was advanced in the College of Net Hades. I think that the spy one Mr. Brokart says, he says the secret is not secrecy, is not. He doesn't support it. Here's what the district court said. It says, under NPA, the user is clearly aware that immediately following a click indicating a sin, the process will begin using the internet to activate the program. And this is the basis of the course decision. Now, this, as the statement of fact, is true. But I submit to the court that it's irrelevant to the question of automatic. Of course, the user, but the level of the user's knowledge or awareness does not make something more or less automatic. I see it on my time. Thank you, Mr. Anderson and Mr. Brokart. The case is taken under submission.
Chris Soft. Okay, Mr. Anderson, we're ready when you are. Okay, here are. May I please the court? In order to draft the district's voice opinion, I'll start out by accessing the unique issue and move on to the issue of automatic automatically. Unique, why is that even before us? Well, your honor, Microsoft has stated a position that the court aired in the deficit. The court entered some re-judgment on the basis of its interpretation of automatic. Microsoft has given us another reason to uphold that some re-judgment motion, which wasn't decided by the district court, and our court has repeatedly said there's really not need jurisdiction for that kind of cross-section. There isn't a cross-claim entitled in that circumstance. So why don't you stick with what the district judge decided and what's under appeal here, which is the automatically unique if it comes up at all, is an alternative basis for reaching the same result of what the district court decided. Let's go there. I think I have to do that. On the issue of automatic, the district court aired because what it essentially did is equate automatic, the term automatic, with the notion of secrecy. And if we look at the district court's opinion, what we see is... Well, the prompt comes up on the Microsoft version, and it says, do you want to activate Windows and it gives you three options, only one of the three options, even use the Internet. So how does that automatically determine whether one or more of some plurality of computers is operable for communicating with the Internet? Well, your Honor, if you elect the other options, the options that your Honor is going to do. Pick another phone call and call in the customer service agent. For example, what does that have to do with automatically determining that the Internet's operable? Absolutely nothing. And if you elect that option, you're not even practicing the invention. You're not practicing the invention until you do elect to activate over the Internet. Now, with that happens, and keep in mind, the National Party is very specific about what it requires to be automatic. And there's two sub-processes. One is the determination that the computer is capable of communicating with the Internet. The other is having the ability, not necessarily doing it, but having the ability to transfer identification data over the Internet. And so the issue before the District Court was whether those two sub-processes are performed automatically in the accused device. But you have a user prompt interrupting the automaticity here. Well, I disagree with that, Your Honor, because the automaticity, if you will. The user has to do something, right? You agree with that. Yes, of course. How is that automatically determining whether their computer communicates with the Internet? Well, in the same way. Is the user getting under the desk and checking to see whether his computer is connected to the Internet? No, and that's the precise point. If the user had to do that or had to do some manual step to figure out whether his or her computer was connected to the Internet, then there would be an argument that's not done on it. But the point is once the user initiates the action by clicking the mouse that says, I want to activate over the Internet. Once that happens and that's the trigger, then the computer automatically determines whether it's possible for communicating with the Internet. It might be a source of darkness. Well, that's always automatic then. Every time I turn my computer on its automatic then. Because I push the button, it connects to the Internet. Well, today. In every instance, then it's automatic. So your automatic doesn't mean anything. Well, I think it does. If it does, then it must mean what the district court says, right? And the user interruption of that automaticity reaches the same result as the district court did. But you're on the wrong, I take issue with the notion that there's an interruption of the automaticity. Because the function that is to be automatic is the determination of, for example, the determination of whether it can communicate with the Internet. That doesn't even start to happen until the user decides to use the program and to activate over the Internet. So there is no interruption. There's nothing that comes in and interrupts it. Well, let me just, I'm getting a little more confused the more we say rather than that. Does the user have or not have control over when and whether to operate the, to determine Internet operability? The user does. He has ultimately, ultimately, and has that kind of control. Well, what is that? Well, let me give you an important example. My car has no night transmission. But I ultimately control back those processes. In fact, I can even control it to the point of looking at my tag on or listening to the home of the engine. And deciding when your change is about to be made, to be made, if I wanted to make that gear change, I could accelerate allowing the change to be made. If I don't, I can back off the accelerator and gear changes it may. So ultimately, ultimately, I have control over those sub-processes. But that doesn't, that doesn't remove the fact that there be performed automatically by the machine at the machine level. And, you know, a judge-rader's example, everything that we, that we talk about has this, this, this property. Every machine that we call automatic has some sort of trigger that human user, it pushes a button or flips a lever or does something to initiate the processes. And then thereafter, then those processes are performed automatically. If we interpret the, the, the term automatic the way the district court did, then almost everything that we describe, every mandate machine that we describe is automatic, and no longer be described is automatic. Because there's always ultimate user control or influence. But let's, let's, the spec talks about this invention in the abstract and in column five line 26 and 27, it says, it's not even going to be noticeable to the user. It stresses again, unnoticeable to the user. The user has to initiate this. This is unnoticeable. But there's a core, there's a core point of error, I think, with the district court made, made it mistake. The court construed the invention improperly. The court read that which says preferably, the user isn't going to see it. The court read that provision and said, well, this device has operated the secret. And the national invention is not necessarily designed to operate a secret. It can do that. But it's certainly not required to operate a secret. And what managed to deal with here, I think is a balance saying this is, this is quite common, is that there's no right or wrong way to do something. But you're balancing, you're balancing competing, competing issues and competing concerns. So for example, if someone goes into bio cards, they don't want a really fast car. And they try to sell them a Ferrari. And the buyer says, well, what's up in this really comfortable? I want both. You can't have both in the same car. And I think Nash is recognizing that in some ways, the less the, would be pirate knows about the, the, the piracy system, how it operates and what it does. And that has some value. However, that has to be balanced against the fact that, and Nash points this out specifically, that has to be balanced against the fact that operating in absolute secrecy, not telling the user what you're doing, may be one of the violation of law. Now, at the time this patent was written, this is a very nascent area of the technology. And it was unclear what even the US courts, the US Congress would say about the reality of monitoring someone in complete secret. And Nash recognizes that now I think since that time, there's been some laws that have come out of Congress, they would allow that, but still an open question in your other places. In addition to that, there's a question of user satisfaction. How will the customers respond to this sort of secret monitoring? So Nash says in light of all these problems, it may be advisable to get explicit, explicit authorization as opposed to implicit authorization from the user. Now, the only way to get explicit authorization is to want to communicate to the user. What we're going to do is monitor. And then once the user knows this kind of monitoring is going to be done, then a some sort of representation back from the user saying, okay, I agree to it. And that wasn't that the basis of patentability, that the intervening step of saying I'm going to operate automatically isn't practiced. Now that all your honor, this term automatically and this issue of it operating automatically is completely irrelevant to patentability. The patent would have been allowed if this term hadn't been in there. Now, I think the reason it isn't there. But it isn't there. It cannot, it should not be read out. I'm not arguing that. But what I am suggesting to the court that it has, it does not go to the court of patentability. It really has nothing to do with patentability. The reason is in there, I think it's what Judge Rayer was a little bit too earlier, when he said, well, I turn my computer out of course it will automatically determine our internet settings. We expect that today. Given the technology, given the point where the technology is, we expect to turn our computers on and for the community, for the computer to determine what we're connected to the internet. That wasn't true 10, 15 years ago, where people had to take these coupling devices and a couple of modules fall and actually die in and all these various sorts of things. So what's happening is the technology has moved forward so that we expect these systems to be automated and there's no reason for them not to be, it is the most efficient way to go. But the point here is the court lost focus on what really automatic means. The court agreed, an even Microsoft agreed, that it carries its common ordinary meaning and the common ordinary meaning of automatic is never secret. And it is never that the user has no ultimate control at any level because as we pull it out of the break and is this court playing out of college now? There are often currencies where, well, almost always, where the user has ultimate control over the device in every automatic machine. And you know, you take this to its logic extreme. Well, the user even controls that ultimately will be by determining whether to use the program or to be trying on the computer. So there's always that kind of control and to adopt that reasoning, we'll read out of, read out the entire meaning of what automatic is intended to be made and it will take its forward and important limitations that you find in the arm of there. I see that my time is almost done. Yes, we'll save the rest of your time for rebuttal. Thank you, Mr. Anderson. Mr. Brookhart. Yes, ma'am. May I please the court? I'm older Brookhart and I'm representing Microsoft with me, our pathologist and prop record of Schroggarty Bacon and Andy Culver of Microsoft. There are three issues before the court today. Two of those, well, I was going to say two of those have been discussed, one of those automatically has been discussed by Council for Nange. The other one is not interfering. The third issue was in our cross appeal addressing unique in view of the knowledge decision. I would submit that if the court wishes to allow us to argue the issue of unique, which as an old term of grounds of performance. Let's start with the ground that's been presented by Mr. Anderson. That's right, I would like to do the automatically and not interfering first. I'd like to indicate a little help to the court in understanding the differences between the Nance invention and Microsoft product activation is to look at just what they really color. The Nance invention and Microsoft product activation have a fundamental difference. That fundamental difference was alluded to earlier by the refrigerator. In that the Nance invention is directed to a system that gathers and transmits information. It does it passively, it operates in the background. It's hopefully it's unnoticed so that there's no motivation for the user to try to go in and disable or remove the Nance program. But maybe the spec does use the word preferably as the other council pointed out. Yes, it does use preferably in some places. It does not use it in other places. At the beginning of the summary of the invention, it explicitly states the three terms that I just mentioned, passive use, and another appearance, not in a preferable mode. If you read the whole tenor of the spec, it is describing what is really a spyware type of system. That is in direct contrast to the Microsoft product activation system, which is really an up front, it's an in-your-face system, which puts a screen up after you've loaded each program that you purchased and loaded. And will not let you proceed without activating the system. You have a choice, you can either activate on the telephone, you can activate by the internet, or you can put off and activate later. But you have to make the decision. That decision clearly makes the system not automatic. The court be fine automatically as acting or operating in a manner essentially independent of external influence or control. Court had to look for a definition because there's no real discussion of automatic in the specification. There's clearly no discussion in the specification or suggestion that automatic means the removal of manual steps. The claims in the match pattern, the method claims, are all method claims, which are performed by computer programs. As again, as the iterator pointed out, those steps are all done by the computer. There's no indication that any of the steps are done in any other fashion. The only reasonable meaning for the word automatic in connection with the claims of the match pattern is that it is done in a fashion, in conjunction with the gallery and sending of information in a system or in a fashion. That is not intended to raise the user's interest. Clearly, that's in contrast to the Microsoft system, which puts a screen off, I'll refer you to page 28 of the Blueberry, that shows that screen. I think you've all seen that. And the user cannot get beyond that screen without making a choice. But all the user has to do is instruct the computer, all right, proceed automatically to gather and transmit. If the user instructs the computer to activate, then the computer will do the rest of the program, which will gather the information, it will check to see if there's an internet connection and it will transmit the data. But if the user never makes that instruction, he will never be able to proceed in the longer on a user program. But if the user issues that instruction, it doesn't then literally read on that clause. No, no, it does not because in order to have a meaning for the word automatic, it has to have something to do with the user having an option to influence or to control the action that's going to follow. That's exactly the position that the district court took and is throughout the district court's opinion. We believe that that is correct. That either an action has to be the base upon what's disclosed in the specification. And in the Microsoft system, the product activation will not go forward. The user will not be able to use the program after the grace period. Unless the user has made the choice to activate either through the computer, through the internet or on the telephone. But this is a factual issue or a legal issue. If it's factual, the district court resolve facts on some rejections, but that's a problem. And when you've argued it up to so far has been a factual issue, you argue with the Microsoft program. That's our fact. No, you're on your own. There's no question of between the parties as to what the program does. No, but the ultimate question of infringement, whether those facts as understood would be construed to infringe under the claim construction of the district court. That ultimate factual decision is left to a fact finder and is probably not adjudicable on some rejectment. Unless you're telling me this is wholly a claim construction. In a claim construction context, what wants the court construed the claim to mean without user influence. I think there's no further fact to see. And so it would be available to disposition on some rejectment. I think. Is use of the word secret that's thrown around here. Is it your view that secret is necessarily synonymous with not automatic or automatic or not automatic? No, secret does not even be used. In fact, the national pattern intensive to be to operate in the background, get intensive to the program to move forward in any we believe in a secret matter. But it can be that is not required right in the national pattern and we're not suggesting that it is. I think that's clearly a preferred body. But it does contemplate the user not having the option to allow or to disallow the information to be forward over the internet. And that is the automatic control. Mass wants automatically. He wants the information to be gathered and sent and the user has no control to stop it. And the bottom line is, is a pirate is not going to affirmatively answer a question. Yes, send information to the pirate across the internet. I'd like to move on to to the term not interfering, which is also an issue not interfering is involved with claim 12. Is that your across appeal? No, that is the main appeal. What's the term on cross appeal? Man, you're right. The term on cross appeal is unique. Okay. In terms of not interfering, we can't believe that the court was correct in seven-ish or not interfering. The court defying not interfering is to be not to create a hindrance or an obstacle. Claim 12 requires that the computer retain which is installed on the first on the user's computer not interfere with the use of the underlying programs. The parties, I believe, are an agreement that product activation does interfere. The question, and if you look in in the blue brief again at page 37 and 38, there are screenshots. If you get to the conclusion of the grace theory and you have not successfully activated product activation, those screenshots appear one from Windows as an example and one from Office as another example. And it is clear from those screenshots that with Windows, you have no option to further use the program. You must activate or turn the computer off. That's the only two options. With Office, the two options that you have are to activate or to continue to use the program, but it ain't highly reduced the functionality of you're not allowed to do anything in terms of saving or creating the document. But Mr. Nash is arguing that it's preposterous, I think, or absurd, to... We're talking about the first routine issue. That's supposed to be really the issue in this regard to this term. Mr. Nash says that what you're saying is that the first routine is everything that occurs on the users' program, and that doesn't make any sense. I cement that his position doesn't make any sense when he says that. I think the only thing that we really are this year is what is the first routine and that is the first routine interfere. If you look at the specification of the Nash patent at column 3 lines 32 to 56, there is a recitation concerning the first computer routine. And if this is just about every step that Mr. Nash discloses in his patent to be performed on the users' computer, he uses first routine to differentiate what's done on the users' computer from the second routine, which is what is done on the server, which collects the information. At the other end of the internet. Claim 12 only provides that a first routine is installed on the computer, and then it goes on and provides that that first routine not interfere. And it also goes on and provides that one of the functions for the first routine is to determine the unique hardware-ident wire. So let me just tie that back to Judge Raider's question about summary judgment and questions of fact, questions of law. I mean, this issue, this case seems to have been teed up as a summary judgment, just an infringement question, and not on a claim construction. It seems like on basic claim constructions, the parties, there was no dispute. But with respect to routine, I mean, is what we've been talking about here and what the briefs are talking about in terms of what's the first routine and what's not the first routine. Is that a question of fact or is that a question of claim construct, a question of law given the term in the spec? I think if the party said, had understood the Markman hearing that there was going to be an issue over first routine that that would have been presented as a question of claim construction as to the mean of first routine. I can submit that there is no discrepancy as to the mean of first routine. It's clearly indicated in the national pattern that the first routine applies to that which is done. In connection with the anti-marsy program. Well, you may say that you— I'm sorry to interrupt, but you may say that there's no discrepancy, but as you just acknowledged in our earlier conversation, Mr. Nash is calling your view of what consists of the first routine is absurdity. You're saying his is absurd. So there clearly is a dispute, is there not in terms of what activities constitute the first routine? At this point, there's a dispute as to what the first routine means. I guess an alternative way of phrasing that would be a dispute as to what falls within the first routine after you define the means. We believe that the first routine is clearly defined in the national pattern as that which is done by the anti-marsy program on the user's computer. The claim plug uses the term comprising which leads it open ended. There's no reason to restrict it in any fashion. And once that definition of first routine, it is employed. There's no question, there's no dispute as to the facts as to what the Microsoft system does. Clearly, the interference occurs from the user's computer as an example. Well, if the user never attempts to even activate, he never authorizes an activation across the internet, then his computer will be shut down clearly interference. But doesn't it shut down in your system also? I didn't understand the question. It doesn't shut down. When the product activation program shuts down, doesn't it shut down the windows also? Product activation. If it's not properly activated. We will solve the use of windows and give the user the choice of activating or at that time showing the computer. It does not shut down windows itself. If you will sit there with that screenshot until the user makes a choice. So the distinction in your view is whether it's automatic again. The distinction with this in terms of not interfering is that the first routine, which is the routine on the user's computer, puts up a screen shot from which the user cannot escape unless he activates successfully. And can no longer use the program. Okay. Am I correct in the end? I'm saying the court is not wish to hear argument on. You mean? We have 30 seconds left. So I think you're correct. Thank you. Thank you, Mr. Brachart. Mr. Anderson. I believe this forced decision in the college net case that came out last summer is controlling and indistinguishable from the insta case. In the college net case, the same argument was advanced in that. Different claims. There were different claims. That's true. That's a pretty significant difference, isn't it? I don't believe it is because I was on that case as well. So we're talking about their conveying information informed that can be used by various universities once it's put up on the internet. Yes, that's somewhat different than whether a user prompt interrupts the conveyance of security information. But the same argument was advanced, I believe, in that case. The argument was advanced that by having to click a mouse, the user has ultimate control over whether this information is populated to these other applications. That was the case in college net here. The argument is because the user has an ultimate control of whether the user even activates all over the internet. And if the user chooses not to activate all the internet, then of course these subprocesses never occur. Since the user has that kind of control, the argument is advanced by Microsoft and it was bought into by the district court. But that means it's not automatic. And the problem is that what's happened is there's been a term I think in actually characterizing invention. And then stretch automatic around that mischaracterization. Because if you look, we look first at the question of the very issue of, well, did the court adopt an incorrect definition? And I think the more elegant definition would have been the one that the court dealt with in the college net case. We concluded that the court's definition was not incorrect because it came straight out of the American Heritage Dictionary. And when you look at that dictionary and the examples that it gives, it's clear that the definition is not intended to convey the notion that the user doesn't have any ultimate control. And they give examples like an automatic pilot or a machine gun or automatic machine gun. These types of examples are found in the dictionary, in the very dictionary, from which the court extracted these definitions. Without external influence, isn't there some external influence from the user? There's no more external influence in this case than there is in the evidence. You choose to abort the whole thing. You can call them up on the phone. And nothing goes over the internet ever. But in the case of an automatic pilot in your honor, you can choose to abort that entire process. You can flip it off and fly the plane yourself in the case of an automatic transmission to use your example. But one of those European ones that I can decide when it switches gears. Yes. It would still be an automatic transmission or not because I'm manually transmitting. It would still have an automatic transmission. I suppose that if you shifted the gears physically, you would argue that now I'm operating in the manual mode. But I think the issue here is, the first question comes up, what is it that has to be automatic? And there's a specific, it doesn't say the whole process is automatic or it self-initiates, initiates automatically. What it says is these two sub-processes have to be automatic. And what's interesting is Microsoft itself, and its own document is on the web, on its website, says Microsoft Cryic Activation performs these very processes automatically. We automatically determine your internet set. We automatically determine whether you're connected to the internet. If you're not, we try to find your modem and make a connection. And if you are, we go ahead and process the connection and transfer the data. So even Microsoft says, I think this is telling because if we ask the skilled artists, what is met by this term automatic? Without any gloss on this, they say, of course, that there's going to be some amount of user control pushing a button, that sort of thing doesn't make it not automatic. So in conclusion, I do think that the same argument was advanced in the College of Net Hades. I think that the spy one Mr. Brokart says, he says the secret is not secrecy, is not. He doesn't support it. Here's what the district court said. It says, under NPA, the user is clearly aware that immediately following a click indicating a sin, the process will begin using the internet to activate the program. And this is the basis of the course decision. Now, this, as the statement of fact, is true. But I submit to the court that it's irrelevant to the question of automatic. Of course, the user, but the level of the user's knowledge or awareness does not make something more or less automatic. I see it on my time. Thank you, Mr. Anderson and Mr. Brokart. The case is taken under submission