Legal Case Summary

We have five cases on the calendar this morning, three patent cases and two cases from the court of the field for veterans claims. The latter of being submitted on the briefs and will not be argued. So our first case is the United Video Properties versus at Al, Circus Amazon, 2013, 13, 13, 96, Mr. Lemley. Thank you, Your Honor, and may please the court. The district court in this case construed over 20 terms and five patents. On appeal, Roe v. challenges the construction of only two terms. In both cases, the district court made the same error. It ignored the literal language of the claims and imported limitations into those claims based on what the specification described rather than what the claims cover. With your permission, I'd like to begin with interactive program guide in the 690 patents. The district court construed the term interactive program guide as quote, an application that produces interactive display screens that identify the channels and times on which television programs will air. And then in reconsideration, went on to add another requirement that the guides must be forward looking covering only scheduled television programming

. That's what the specification would seem as just. Well, Your Honor, I think about being scheduled and that thing forward looking. The specification certainly does include as examples a scheduled television program. But I think the specification also makes it clear that that's just an example. And that in fact, the if figure two, which does give a traditional time and channel grid, is described as quote illustrative only. Other program guide display screens are generated for ordering pay programming. The specification in the very first column says interactive program guides allow users to view television program listings in different display formats. For example, a user may desire to view a channel ordered list. Alternatively, the user may desire to view program listings organized by time, by theme, movies, sports, et cetera, or by title alphabetically ordered. So I think the first reason to reject the district court's construction is the specification while it does clearly contemplate time and channel information as a possible implementation is not limited to that time and channel information. And indeed, the specification distinguishes scheduled television programming from pay programming as two different types of things to be depicted in a guide. But in 1997, wasn't it true that one of ordinary skill in the art would understand an interactive program guide to permit users to scroll through television program listings and start in time? Your honor, I think that that would be understood as one possible interpretation, but not as the only one

. So that's how I understand the column one of your pattern, where it says, this is what interactive program guides do. They permit you to do this. They also permit you to buy some pay-per-view show. But at the same time, now there's new kinds of pay packages that are offered by cable and satellite providers. And our invention is to permit you to use that interactive program guide. Not only do scroll through program listings and buy a pay-per-view program, but also to buy a whole package. I think that's correct, Your Honor. And precisely for that reason, the district court's requirement that you must display channel and time information and that it must be forward-looking for programs that have not yet been displayed, ignores or misses those additional implementations. But I guess what I understand your argument to be, is that an interactive program guide, and now as you've described in your pattern, can be an either or situation. It can be either something that just does program listings and buy a television program perhaps. But it could also just exclusively be a guide where you're only buying pay programs. That's correct, Your Honor

. I'm trying to figure out where your pattern does it say that? Certainly, Your Honor. So the pattern never uses the term video on demand. The pattern never uses the term video on demand, which is what is primarily an issue here. But a number of indications in the pattern to indicate that you don't need specific pre-programmed time or channel information. Figure 7 and 8, for instance, talk about buying a package of all Olympic swimming events. When in fact, as we're about to see in Sochi, the times for those events are not necessarily set in stone. They're not pre-scheduled. So if I buy a set of all Olympic swimming events, as in this example, I'm buying some future programming that will be displayed regardless of what channel it ends up appearing on, regardless of what time it happens to appear. The idea is I buy the whole package. Sounds future to me. Well, Your Honor, obviously I'm going to watch shows that I have not yet watched. The question I think is whether as the district court required, those shows must be scheduled to first appear at a later time, or whether the fact that I can choose them to watch them later is a requirement

. Notable in this regard, I think Your Honor is Figure 6, which is in the record at 242. Figure 6 is a flow chart for selecting programs for purchase. And if you follow the flow chart down to determine whether there's a purchasable event in element 90, we determine whether it's part of a single package or whether it can be purchased individually. If it is not part of a package, we move to the right and we display starting time, channel, et cetera. That's the conventional television programming that Amazon refers to. But if it is part of a package and is going to be purchased only as a package rather than individually, then we move down the flow chart, we display the contents of the package and the price, we display the time window in which I might be free to order it, but we say nothing about displaying channel and time information as the district court require. I guess the question I have though for this flow chart is your flow chart contemplates, I guess, both embodiments. There are going to be times where you're just buying a package and maybe you don't have to worry about the start times, but the interactive program guide adds such also, also, let you display starting times and the names of the programs and the channel and things like that. I think that's right, Your Honor, and the conclusion I draw from that is that time and channel information is not a necessary component of an interactive program guide. It might well, in fact, appear. Many of the embodiments will have time and channel information, but it's not a necessary component. The interpretation that Amazon offers for this is, well, it's okay that the screens don't have the time and channel information, as long as somewhere in other applications there's time and channel information, that's a very odd construction of a package

. That says something is a program guide if but only if other parts of the guide. Well, you're saying that we should be understanding interactive program guide that device, that physical thing, whatever it is, as morphing back and forth. Sometimes it's something where we should just re-understand it to be something that has nothing to do with displaying times and channels and program listings, and then other times, depending on how it's used, we now will re-understand the terms. With respect, Your Honor, I think actually that's exactly what Amazon is arguing and that we are opposing. What we are saying is a program guide is a way to find a television programming. You could find that television programming in various ways. One way to do it is by looking up time and channel information, and that's a fairly conventional television guide, but other ways to do it are contemplated in the patents, such as looking it up by subject matter, looking it up by title, etc. We think that's probably, I think we've had a good interaction on the interactive claim limitation. You want to get to data feed, yes, so I'll show you. Sure, certainly, Your Honor. With respect to the term data feed, the district court construed the term data feed as meaning an updatable transmission of data sent by a television programming provider, over television signals, and the claim to data feed is not transmitted over the internet. But you had a deletion from your claim

. Yes, Your Honor. A deletion of internet delivered. Yes, Your Honor. So you're left with internet origin, or from the internet, but not over the internet? Exactly, Your Honor. And that deletion, I think, consistent with standard patent law principles, broadened the scope of the claim. Yes, the opportunity to delete it, something specific, and the interpretation of the claim, therefore, to not include that's what you deleted is a very sound point also. Well, Your Honor, I think for prosecution, disclaimer to exist. Several things have to happen. The first thing that has to happen is we have to have a firmatively disclaimed scope. And I don't think that that's true here. By removing the internet delivered data limitation altogether, we broadened the claims. We didn't narrow them

. And it's well established law in this court that if you're broadening the claims, you can't be disclaiming matter altogether. I also think that the evidence that Amazon relies upon here to suggest that the examiner thought we were affirmatively disclaiming the internet doesn't suffice. First, it's worth noting that this court suggested an in-over peer versus safari water. It's the applicant's statements, not the examiner's statements, who must give up or disclaim subject matter. Now, I don't think the examiner actually said we gave up the internet. What the examiner said is, you haven't shown that the specification requires the internet. The applicant submitted the false claims. Absolutely, Your Honor. We altered the claims to eliminate the internet delivered limitation. We did not say in doing so that we were giving up internet delivery of data, quite the contrary. And here I would note two points. I'm just big for itself

. Your Honor, I think it doesn't. So what this court has said is that an applicant's silence in the face of an examiner's interpretation is not sufficient for prosecution history disclaimers. And for reasons for allowance, right? That's not for when you're responding to an office section. No, Your Honor. I think in fact, I do amend the claim to overcome the rejection. Well, I think it is in fact both, Your Honor. So in the super guide case, for instance, right? The patentees didn't argue during prosecution that regularly received television signals also included digital technology. The court says that doesn't matter because the absence of such an argument does not necessarily indicate a clear and deliberate disavowal. We can draw no inference from what the patentees did not argue. That opinion, though, also recognized that the patent in that case contemplated both analog and digital signals, though. There is a column in the opinion that talks about me. So that's correct

. I think it's worth noting here, though, Your Honor, that far from acquiescing to an idea that we were giving up Internet Delivery Data, or what the applicant said was quite the contrary. What we've said was various types of non-Internet Delivery means, quote, our only examples of such ways of delivery. We pointed to the specification as saying that, quote, those of skill in the art will understand that numerous other transmission schemes can be used to transmit that data scheme. And I think it's also worth noting that the patent itself talks about implementing the innovation in, quote, a distributed application in a broadband network architecture. What about the innovation? The innovation here has to do with taking information supplemental to a TV program from the Internet and feeding it into the user alongside the television program. So while I'm watching a sporting event, for instance, I could get a feed of commentary or data, other sports scores or sports history that's delivered to me. What is the remote facility in the claim? The remote facility in the claim is a central server that sort of collects that information and processes it and sends it to them. And then the claim says it's now the remote facility, that central server that's receiving the data from the Internet. That's correct. The amendment into the claim. And there was the deletion that the Internet delivery of data was going directly to the user. So that's you deleted that and then you rerouted that Internet data delivery over to the remote facility, which is not the user, it's some central server

. So, Your Honor, what the delivery in fact, I think now is entirely agnostic as a result of the change in the claim. So what the original claim said, we're delivering this data via the Internet. The examiner said the specification doesn't require Internet. I don't see support for that. So we changed the claims to remove any limitation as to how it is delivered and just to say we gather the information in the first place from the Internet. We package that together with the television signal into a data feed and then the user receives that data feed. I think by removing any requirement as to how the data feed is delivered to the user, we've pretty clearly broadened the claim. So that if we imagine, for instance, we had an originally acclaimed to a red car and we changed that claim to just say a car. I don't think the proper interpretation of that claim is any car except a red one. By broadening the claim we haven't given up ground quite the contrary. You wanted to say something? I would, Your Honor. Thank you. Thank you. Mr. Garth. Thank you, Judge Larianne. May it please the court. I'd like to begin with the data feed term and then I'll move to interactive program guide. With respect to data feed, I think the only way one can interpret the prosecution and history in this case is to find that the applicant's excluded Internet delivered data from the claim in order to secure approval of that claim. And I think how about the point of removing a limitation broadened the claim? I think the problem at that point is they didn't just remove Internet delivered data. They replaced it with the term data feed which the examiner had made clear did not include the delivery of Internet data. And that's the pages one thousand and two and one thousand and three of the joint appendix. So you have the removal of Internet delivered data and replacing it with the very term that the examiner had defined not to include Internet delivered data. And then the third aspect of this which you know destroys any argument on this front is the very change in judge Chen referred to which is at the very time that they eliminated Internet delivered data and replaced it with data feed

. Thank you. Mr. Garth. Thank you, Judge Larianne. May it please the court. I'd like to begin with the data feed term and then I'll move to interactive program guide. With respect to data feed, I think the only way one can interpret the prosecution and history in this case is to find that the applicant's excluded Internet delivered data from the claim in order to secure approval of that claim. And I think how about the point of removing a limitation broadened the claim? I think the problem at that point is they didn't just remove Internet delivered data. They replaced it with the term data feed which the examiner had made clear did not include the delivery of Internet data. And that's the pages one thousand and two and one thousand and three of the joint appendix. So you have the removal of Internet delivered data and replacing it with the very term that the examiner had defined not to include Internet delivered data. And then the third aspect of this which you know destroys any argument on this front is the very change in judge Chen referred to which is at the very time that they eliminated Internet delivered data and replaced it with data feed. They also made clear that it was the remote facility that received the Internet data and they did not challenge the examiner's conclusion and this is a page one thousand and three of the joint appendix that the receiver i.e. the user or set top box could not receive Internet data. The only way to make sense of that claim is to conclude that they disavowed by applicant's own actions the amendments any construction of the term that would include Internet delivered data. We have to make some inferences though to get there right we're not working with the more classic form of prosecution disclaimer where it's the applicant that's making certain express statements and then we can see and read and evaluate that and understand what the applicant is giving up. Here it's the examiner saying something the applicant making an amendment and now we have to do a little math before we reach the conclusion you want us to reach. Sure and first I would say that the public looks at the prosecution history in its totality that's clear and the public function of the prosecution history is critical so this court has repeatedly said. Second I think the applicant did make clear that it was adopting the examiner's interpretation. I don't think there could be a stronger indication of that by the very amendment to the claim which eliminates the term of issue and replaces it with data feed which the examiner had to find to exclude Internet delivered data and then the separate amendment with respect and remote facility. And then if you look at what the applicant said in doing that this is on page 1037 of the joint appendix it said that the reason that they were making those amendments was to moot the 112 objection the very objection that the specification did not disclose Internet delivered data. They made that crystal clear so I don't think they could have been clear and if you line this case up with cases like biogen and plan genetic. It actually the prosecution history is much more compelling here and the in the plan genetic case the court said that the applicant didn't have to use the very term an issue where to make clear that it was disavowing it

. They also made clear that it was the remote facility that received the Internet data and they did not challenge the examiner's conclusion and this is a page one thousand and three of the joint appendix that the receiver i.e. the user or set top box could not receive Internet data. The only way to make sense of that claim is to conclude that they disavowed by applicant's own actions the amendments any construction of the term that would include Internet delivered data. We have to make some inferences though to get there right we're not working with the more classic form of prosecution disclaimer where it's the applicant that's making certain express statements and then we can see and read and evaluate that and understand what the applicant is giving up. Here it's the examiner saying something the applicant making an amendment and now we have to do a little math before we reach the conclusion you want us to reach. Sure and first I would say that the public looks at the prosecution history in its totality that's clear and the public function of the prosecution history is critical so this court has repeatedly said. Second I think the applicant did make clear that it was adopting the examiner's interpretation. I don't think there could be a stronger indication of that by the very amendment to the claim which eliminates the term of issue and replaces it with data feed which the examiner had to find to exclude Internet delivered data and then the separate amendment with respect and remote facility. And then if you look at what the applicant said in doing that this is on page 1037 of the joint appendix it said that the reason that they were making those amendments was to moot the 112 objection the very objection that the specification did not disclose Internet delivered data. They made that crystal clear so I don't think they could have been clear and if you line this case up with cases like biogen and plan genetic. It actually the prosecution history is much more compelling here and the in the plan genetic case the court said that the applicant didn't have to use the very term an issue where to make clear that it was disavowing it. In this case the applicant eliminated the very term an issue and then used the term data feed which the examiner had defined to exclude Internet delivered data. And I think that if this prosecution history doesn't lead to the conclusion that the public is title to draw that they excluded the term that they are arguing about here today then it's hard to conceive of any prosecution history that would. And I think again going back to the purpose of relying on the prosecution history it's the public notice function that the public is entitled to look at this history and use it to interpret and understand the meaning of the claim and the only conclusion that the public could reach on this record is that the claim does not include Internet delivered data. If there are no more questions on data feed. What about the specification at column 10 that talks about how there's many different ways to transmit data? And I think not in not restricted in how the transmission is done. Well I think that the more pertinent part is the examiner's conclusion that the specification did not disclose. In fact what the examiner said at 2002 and was didn't even mention or hint at Internet delivery service. And so I think again that takes you back in the prosecution history of the applicant seeking to resolve the 112 objection and amending the claim to make clear that he was excluding Internet delivered data. If we didn't think the prosecution disclaimer was really clear enough then what? Well our position relies on the prosecution history. I think if you didn't think it was clear enough then you would be at odds with your precedent and the biogen case and the plant genetic case and you would be completely reworking the prosecution history as intrinsic evidence of the prosecution's meaning. I guess that's just wondering if you were then thinking there's a written description defect or something like that. We're not arguing written description here today your honor

. In this case the applicant eliminated the very term an issue and then used the term data feed which the examiner had defined to exclude Internet delivered data. And I think that if this prosecution history doesn't lead to the conclusion that the public is title to draw that they excluded the term that they are arguing about here today then it's hard to conceive of any prosecution history that would. And I think again going back to the purpose of relying on the prosecution history it's the public notice function that the public is entitled to look at this history and use it to interpret and understand the meaning of the claim and the only conclusion that the public could reach on this record is that the claim does not include Internet delivered data. If there are no more questions on data feed. What about the specification at column 10 that talks about how there's many different ways to transmit data? And I think not in not restricted in how the transmission is done. Well I think that the more pertinent part is the examiner's conclusion that the specification did not disclose. In fact what the examiner said at 2002 and was didn't even mention or hint at Internet delivery service. And so I think again that takes you back in the prosecution history of the applicant seeking to resolve the 112 objection and amending the claim to make clear that he was excluding Internet delivered data. If we didn't think the prosecution disclaimer was really clear enough then what? Well our position relies on the prosecution history. I think if you didn't think it was clear enough then you would be at odds with your precedent and the biogen case and the plant genetic case and you would be completely reworking the prosecution history as intrinsic evidence of the prosecution's meaning. I guess that's just wondering if you were then thinking there's a written description defect or something like that. We're not arguing written description here today your honor. I think what's critical for the prosecution history is whether the examiner was right or wrong on written description. We think he was but whether he was right or wrong doesn't matter what what you look at is how they responded to that rejection. And it was at the point that the examiner had twice rejected their argument that the patent did encompass Internet delivery service. They had a choice. They could have appealed the examiner's rejection. They could have refiled and instead what they did was they seek to they sought to address that rejection to mood it in their own terms at 137 of the joint appendix by eliminating the very term Internet delivered data and replacing it with data feed with the which the examiner had said clearly did not encompass. This is the carryover sentence from one thousand and two and one thousand three Internet delivered data and again they they amended the claim to make sure that it and they clear that was remote facility IE the cable end that was receiving the Internet data and it was not the receiver IE the user set up box that was receiving it and didn't challenge the examiner statement on one thousand three the joint appendix of the receiver was actually incapable of receiving the Internet data. So I think again the only way that this this court can read it or the public should can read it is that by their very own actions the applicants very own actions here they excluded Internet delivered data from scope to claim. With respect to interactive program guide we obviously completely agree with you judge Laurie that the specification is all about time and channel information I think they were for. So I think that the question rather than saying it. Fair enough fair enough and and and so let me say that we think that specifications does make that clear with respect to pay program and I think what's important to recognize is and the specification makes is clear too that it refers to reminders for the pay program and you're talking about upcoming pay program in the price fight or the Olympic event coming up so I think that that's perfectly consistent with our construction too. The question is what it would a person skill in the art have understood this term to mean nineteen nine seven and we've we've cited the technical dictionary definition of that term they have no definition this is the nineteen ninety six definition of page fifteen sixty one of the joint appendix which provides that it's it refers to electronic program guide but but rovia's acknowledged in this case at page sixteen thirty seven three of the joint appendix at electronic program guide interactive program guide

. I think what's critical for the prosecution history is whether the examiner was right or wrong on written description. We think he was but whether he was right or wrong doesn't matter what what you look at is how they responded to that rejection. And it was at the point that the examiner had twice rejected their argument that the patent did encompass Internet delivery service. They had a choice. They could have appealed the examiner's rejection. They could have refiled and instead what they did was they seek to they sought to address that rejection to mood it in their own terms at 137 of the joint appendix by eliminating the very term Internet delivered data and replacing it with data feed with the which the examiner had said clearly did not encompass. This is the carryover sentence from one thousand and two and one thousand three Internet delivered data and again they they amended the claim to make sure that it and they clear that was remote facility IE the cable end that was receiving the Internet data and it was not the receiver IE the user set up box that was receiving it and didn't challenge the examiner statement on one thousand three the joint appendix of the receiver was actually incapable of receiving the Internet data. So I think again the only way that this this court can read it or the public should can read it is that by their very own actions the applicants very own actions here they excluded Internet delivered data from scope to claim. With respect to interactive program guide we obviously completely agree with you judge Laurie that the specification is all about time and channel information I think they were for. So I think that the question rather than saying it. Fair enough fair enough and and and so let me say that we think that specifications does make that clear with respect to pay program and I think what's important to recognize is and the specification makes is clear too that it refers to reminders for the pay program and you're talking about upcoming pay program in the price fight or the Olympic event coming up so I think that that's perfectly consistent with our construction too. The question is what it would a person skill in the art have understood this term to mean nineteen nine seven and we've we've cited the technical dictionary definition of that term they have no definition this is the nineteen ninety six definition of page fifteen sixty one of the joint appendix which provides that it's it refers to electronic program guide but but rovia's acknowledged in this case at page sixteen thirty seven three of the joint appendix at electronic program guide interactive program guide. So that should be interpreted consistently and what the definition definition says is that the program guide refers to forthcoming schedule information but how about Mr. Lemley's point that using the Olympics or some things that will have been passed and wants to pick those up and I suppose part of the program. Well the Olympic example is you look at the pattern here the way to get to that information the figure that Mr. Lemley referred to figure six is through figure two of the pattern which has the time information on one axis and channel information on the other it's going there first of the programming one clicks on what you want to see you find that as part of package and then you're talking about those events. And again I think that the relevant the key question is here is what would a person skill me or have thought that term and he would have thought that it meant forthcoming channel schedule information which is precisely what one would think today precisely what the plane meeting the dictionary definition non technical meeting of those terms with me guide tells you direct you to go somewhere a program is an order of upcoming events and that's why we can go into a restaurant sit down and don't ask for the food guide you ask for a menu. Menu what's immediately available Amazon services here just to put this in context Amazon is providing content which is made instantly available to the users you go to their page you can see what's instantly available that is a menu is it most catalog service it is not a program guide and any sense is that term is a yes Mr. Lemley's argument is that his client invented a new kind of interactive program guide everything you're saying is right about. Prior existing interactive program kind and then they went ahead and invented a new kind and then if you look at figures six and seven you see embodiment that don't have any display screens showing. An ability to scroll through program listings for different television channels and so therefore. Maybe there's something going on here that not quite like. What everyone had understood before to be an interactive program guide and I think the problem with that is this twofold one is if you actually go back and look at the patent the figures that he's referring to you only get there by going through the time and schedule information and I think. The pertinent part of the patent of direct to is column six line 43 through column seven line 47 works planes have a figure for together and then I think the second point which ties it together is that as your honor mentioned

. So that should be interpreted consistently and what the definition definition says is that the program guide refers to forthcoming schedule information but how about Mr. Lemley's point that using the Olympics or some things that will have been passed and wants to pick those up and I suppose part of the program. Well the Olympic example is you look at the pattern here the way to get to that information the figure that Mr. Lemley referred to figure six is through figure two of the pattern which has the time information on one axis and channel information on the other it's going there first of the programming one clicks on what you want to see you find that as part of package and then you're talking about those events. And again I think that the relevant the key question is here is what would a person skill me or have thought that term and he would have thought that it meant forthcoming channel schedule information which is precisely what one would think today precisely what the plane meeting the dictionary definition non technical meeting of those terms with me guide tells you direct you to go somewhere a program is an order of upcoming events and that's why we can go into a restaurant sit down and don't ask for the food guide you ask for a menu. Menu what's immediately available Amazon services here just to put this in context Amazon is providing content which is made instantly available to the users you go to their page you can see what's instantly available that is a menu is it most catalog service it is not a program guide and any sense is that term is a yes Mr. Lemley's argument is that his client invented a new kind of interactive program guide everything you're saying is right about. Prior existing interactive program kind and then they went ahead and invented a new kind and then if you look at figures six and seven you see embodiment that don't have any display screens showing. An ability to scroll through program listings for different television channels and so therefore. Maybe there's something going on here that not quite like. What everyone had understood before to be an interactive program guide and I think the problem with that is this twofold one is if you actually go back and look at the patent the figures that he's referring to you only get there by going through the time and schedule information and I think. The pertinent part of the patent of direct to is column six line 43 through column seven line 47 works planes have a figure for together and then I think the second point which ties it together is that as your honor mentioned. And what we're talking about here is an interpretation in which time and scheduling forthcoming information is the minimum requirement of an interactive program guide what the invention tried to claim is additional features adding on top of the time and schedule forthcoming information and sure they can do that but they can't change the fact that the person of the skill of the art would have understood interactive program guide and 1997 to at least include time and channel forthcoming. And that's the problem with their interpretation and the district court correctly recognize and I think look look at their interpretation of this term and then I think it all falls apart their interpretation of interactive program guides is that is anything that helps you find programming well that would include a Google search I could put in the name of the programming and find a list of things and even of content it clearly interact a program guide can't mean that the only the only way that. It makes sense that in light of the extrinsic evidence that the dictionary definition is that includes forthcoming information and Roe v itself in the gem star case and we've mentioned this is a 1718 of joint appendix said explicitly a program guides provide viewers with scheduling information for upcoming TV shows and that's the same. I don't I don't believe it's the same pattern you're on but it's but it's but it's the term that we're referring to and so I think it's evidence of how that term is understood just as the technical dictionary definition is and I think to that end it's also relevant the specifications of the 128 and the 268 patent which 268 patent is not before the score but if you look at those specifications they give you further indication of what a person of skill in the art would understand that term to me and they are not going to be a good example of what the person of the art would understand that term to me and they are not going to be a good example of what the person of the art would understand that term to me and they are not going to be a good example of what the person of the art would understand that term to me and they are not going to be a good example of what the person of the art would understand that term to me and they are not going to be a good example of what the person of the art would understand that term to me and they make clear that they would understand that term to include scheduling information about forthcoming program. Of course we would all think of when you picked up a paper copy of the television guide and what the person of skill in the art would have thought to interact a program guide meant in 1997 that even though it's electronic it would still require you to have time and scheduling information because that would that is the information that would tell you where to go how to find the programming. What would it be? The word was something like computer instead of interactive program guide and the claim and then computer 20 years ago was something much less than the computer today. Would you be saying the same thing? No, this claim is stuck to computer as it was understood back in the mid-90s. There is no question that technology can involve and claims can cover new technology. I think as this court said in the MIT versus Abyskis case, the meaning of a claim term and I don't think my friend actually disputes this, the meaning of a claim term can't change. Where you have a situation as you did in the MIT case that the meaning of the disputed claim term there was a technical definition, technical dictionary definition that gave meaning to that. A person in skill in the art would have meant it to understood that term. That meaning can change over time regardless of the evolving technology

. And what we're talking about here is an interpretation in which time and scheduling forthcoming information is the minimum requirement of an interactive program guide what the invention tried to claim is additional features adding on top of the time and schedule forthcoming information and sure they can do that but they can't change the fact that the person of the skill of the art would have understood interactive program guide and 1997 to at least include time and channel forthcoming. And that's the problem with their interpretation and the district court correctly recognize and I think look look at their interpretation of this term and then I think it all falls apart their interpretation of interactive program guides is that is anything that helps you find programming well that would include a Google search I could put in the name of the programming and find a list of things and even of content it clearly interact a program guide can't mean that the only the only way that. It makes sense that in light of the extrinsic evidence that the dictionary definition is that includes forthcoming information and Roe v itself in the gem star case and we've mentioned this is a 1718 of joint appendix said explicitly a program guides provide viewers with scheduling information for upcoming TV shows and that's the same. I don't I don't believe it's the same pattern you're on but it's but it's but it's the term that we're referring to and so I think it's evidence of how that term is understood just as the technical dictionary definition is and I think to that end it's also relevant the specifications of the 128 and the 268 patent which 268 patent is not before the score but if you look at those specifications they give you further indication of what a person of skill in the art would understand that term to me and they are not going to be a good example of what the person of the art would understand that term to me and they are not going to be a good example of what the person of the art would understand that term to me and they are not going to be a good example of what the person of the art would understand that term to me and they are not going to be a good example of what the person of the art would understand that term to me and they are not going to be a good example of what the person of the art would understand that term to me and they make clear that they would understand that term to include scheduling information about forthcoming program. Of course we would all think of when you picked up a paper copy of the television guide and what the person of skill in the art would have thought to interact a program guide meant in 1997 that even though it's electronic it would still require you to have time and scheduling information because that would that is the information that would tell you where to go how to find the programming. What would it be? The word was something like computer instead of interactive program guide and the claim and then computer 20 years ago was something much less than the computer today. Would you be saying the same thing? No, this claim is stuck to computer as it was understood back in the mid-90s. There is no question that technology can involve and claims can cover new technology. I think as this court said in the MIT versus Abyskis case, the meaning of a claim term and I don't think my friend actually disputes this, the meaning of a claim term can't change. Where you have a situation as you did in the MIT case that the meaning of the disputed claim term there was a technical definition, technical dictionary definition that gave meaning to that. A person in skill in the art would have meant it to understood that term. That meaning can change over time regardless of the evolving technology. Here the meaning was interactive program guide includes something that provides information about forthcoming program and time and schedule information. That meaning cannot change. In that respect this case was fundamentally unlike the super guide case where the court wasn't confronted with the situation where it was clear that the technical term had a meaning to a person in skill in the art and even the patent itself contemplated that it could mean the television signal issue could have a broader meaning and just analog. Here you have compelling extrinsic evidence that a person of skill in the art would have understood interactive program guide to be just what the district court concluded it was requiring forthcoming schedule information, time and channel information. That meaning cannot change over time and that meaning strongly supported by the ordinary usage of that term a program guide something that tells you where to go to find the programming which would require time and schedule information just to court properly construed both terms of the patents and we would ask this court to affirm the district court's decision. Thank you, Mr. Lemley. Are these 17-year patents of 20-year patents? What do they expire? One goes back to one of them was filed first filed in 1997 the interactive program guide is I believe a 20-year patent the one with data feed I believe was filed in 1995 before the change but I will check and make sure. Let me speak briefly to an interactive program guide. It's worth noting that I think there are three independent problems with the district court's claim construction any one of which would require reversal. We have so far focused most of our attention on the first one the specification I just want to briefly highlight two others. The second is what is what are people of ordinary skill in the art what would they have thought at the time that these terms might mean or would include

. Here the meaning was interactive program guide includes something that provides information about forthcoming program and time and schedule information. That meaning cannot change. In that respect this case was fundamentally unlike the super guide case where the court wasn't confronted with the situation where it was clear that the technical term had a meaning to a person in skill in the art and even the patent itself contemplated that it could mean the television signal issue could have a broader meaning and just analog. Here you have compelling extrinsic evidence that a person of skill in the art would have understood interactive program guide to be just what the district court concluded it was requiring forthcoming schedule information, time and channel information. That meaning cannot change over time and that meaning strongly supported by the ordinary usage of that term a program guide something that tells you where to go to find the programming which would require time and schedule information just to court properly construed both terms of the patents and we would ask this court to affirm the district court's decision. Thank you, Mr. Lemley. Are these 17-year patents of 20-year patents? What do they expire? One goes back to one of them was filed first filed in 1997 the interactive program guide is I believe a 20-year patent the one with data feed I believe was filed in 1995 before the change but I will check and make sure. Let me speak briefly to an interactive program guide. It's worth noting that I think there are three independent problems with the district court's claim construction any one of which would require reversal. We have so far focused most of our attention on the first one the specification I just want to briefly highlight two others. The second is what is what are people of ordinary skill in the art what would they have thought at the time that these terms might mean or would include. My learning council suggests that we should look at other Roe v patents from the same era as persuasive evidence. If you look at those other Roe v patents they tell you that people of skill in the art at the time that this application was filed clearly contemplated a programming guide using video on demand. The Roe v 643 patent file less than a year later was entitled program guide system with video on demand browsing suggesting that a program guide was something that could be used to find video on demand browsing. The La Joya patent file before hours disclosed a program guide for VOD that is video on demand programming that's a 1203. Didn't the district court below do a claim construction for electronic television program guide for the 128 patent. Yes, your honor the parties will know that an electronic application that provides television program schedule and channel information. Yes, your honor the parties below stipulated that interactive program guide and electronic television program guide should receive the same construction so the district court can screw them the same way. We know your honor and for the simple reason that the district court in those patent claims also construed other terms adverse to us so that while we think that construction was wrong had we appealed it it wouldn't make any difference. We couldn't oppose the summary the stipulated summary judgment of not infringement even if we want so I think those claim definitions are moot. Amazon suggests that there's a waiver argument but I think frankly that can't be right. The only reason we didn't appeal those is that it wouldn't have mattered it wouldn't have made a difference we'd be asking this court as to those patent claims to give an advisory opinion. But I guess your point is that this is a different spec and the district court came to the same wrong conclusion based on a different

. My learning council suggests that we should look at other Roe v patents from the same era as persuasive evidence. If you look at those other Roe v patents they tell you that people of skill in the art at the time that this application was filed clearly contemplated a programming guide using video on demand. The Roe v 643 patent file less than a year later was entitled program guide system with video on demand browsing suggesting that a program guide was something that could be used to find video on demand browsing. The La Joya patent file before hours disclosed a program guide for VOD that is video on demand programming that's a 1203. Didn't the district court below do a claim construction for electronic television program guide for the 128 patent. Yes, your honor the parties will know that an electronic application that provides television program schedule and channel information. Yes, your honor the parties below stipulated that interactive program guide and electronic television program guide should receive the same construction so the district court can screw them the same way. We know your honor and for the simple reason that the district court in those patent claims also construed other terms adverse to us so that while we think that construction was wrong had we appealed it it wouldn't make any difference. We couldn't oppose the summary the stipulated summary judgment of not infringement even if we want so I think those claim definitions are moot. Amazon suggests that there's a waiver argument but I think frankly that can't be right. The only reason we didn't appeal those is that it wouldn't have mattered it wouldn't have made a difference we'd be asking this court as to those patent claims to give an advisory opinion. But I guess your point is that this is a different spec and the district court came to the same wrong conclusion based on a different. Exactly right your honor and I think the case they cite the Accentra versus Guidewire case is a specific issue of patentable subject matter where the question was or do system and method claims stand or fall together. I don't think it can be right that you must appeal everything or you or you lose the right to appeal anything. So with respect to the final point to make patent law has always allowed later to develop technologies to fall within the scope of the claims. What Amazon has done here is to try to define temporal limitations into claims that lack them to say in effect program guides of the type that existed in 1997. Now we think even those guides would have included video and demand but it's wrong to say that program guide means only the kinds of program guides that could have existed in 1997. Thank you. Thank you Mr. Emily before you go I want to note that you apply breaches in violation of the federal rules by being printed on both sides. I think that was an inadvertent. It certainly was your honor. I do apologize. He takes another five