Legal Case Summary

Apparently the applicant is not in work. All right. Maybe if you could call Chambers and see it. She was coming. Well, we had a motion, but we'll postpone the motion

. And we'll hear argument then first in Web 0 against Clip View, number 2009, 1483. Four new year honors may please the court. Harry Chamberlain, they have the book called Web 0 LLC. The two legal issues that are presented by this appeal deal with whether the Clip View Spamics product infringes on the 481 patent

. The trial court had concluded that two of the limitations were not met. The two were not. The two that the trial court concluded were not met. Concerned whether the Spamics product automatically associates a disposable email address that is created by the product once it's launched with a web page that is then dedicated for use by the entity that's requesting that email

. In which have meant that controlled by this court's precedence, in particular cases such as resonating versus alt-hand web systems and college net versus apply or sell, the district court's legal conclusions and construction of the patent limitations were in error. With regard to the automatic limitation, the question. Chamberlain and you challenging the court's claim construction? Well, saying it was improperly applied. It was improperly applied but was claim construction is accepted as stated by the court

. Yes, Governor. Largely as we think that with regard to the application in particular with regard to the automatic, I don't want to quote all about that because we really do believe that with regard to those two limitations, this is nothing but a semantic quote and one that's in error at that. So what you're saying basically is that the claim construction was correct but was improperly applied. A loss is our friends who are doing with regard to both limitations just around, that's correct

. We believe that the question is properly framed and then answered should have been that once the spamming program is activated, does that program associate an alias for disposable email address with a web page and we submit that click-views-owned evidence demonstrates that in fact it does and that process is automatic in the way that's specifically contemplated by the 481 program. To illustrate that, we've put schematic side by side in our opening brief pages 14 through 17 pages 25 and 26 explain that but in the reply brief we apply the college net analysis with regard to what constitutes an automatic association or an automatic step in a process. And according to college net any process or step that eliminates a manual task for the user is precisely the definition of automatic. In this case, in the case of the spamming the alias is automatically generated the user is not required to devise, to manually enter the alias email

. The domain of the web page is automatically captured. In fact a spamming appains the web pages domain. It happens when the program is launched. Without requiring the user to determine or manually enter that web page is simply pops up on the screen

. The alias and the web pages domain are automatically brought into a relationship and that's what the district court defined associated to me into bringing to relationship the parties are agreement about that. And that happens at the time that we have a create address for the for the spam x program and the contemplated 481 patent describes exactly that process. As illustrated in Exhibit 6 to the green declaration which was offered in support of click views, a motion for summary judgment of non-infringement, the spam x product specifically identifies the website domain by parsing the web page that's associated with the entity that's making the request. So without the automatic association to the web page the program is going to go no further and the user's optional ability later in the in the stream actually both products do this to make changes to the domain name or to add manually add more than one domain name

. Don't change the automatic association at all it's simply an option. But the as I understand spam x associates the new email address with the domain and not the particular page. Right and we think that's a distinction with that a difference that is the one or more than one logical construct that college net and resonate both address. Resonate addresses in this way the term website is an abstraction and we have actual testimony from the inventor in this case, Mr

. Mac and Cauchy from page 198. He describes it from a computer scientist point of view what we're talking about when we talk about a domain or a website it is a collection of web pages. So when college net refers to the fact that you've got an automatic association with a web page or more than one web page the abstraction here is that a website is simply a collection of these web pages. The web page that the user is looking at when a request to provide an email address is made is what kicks off both of these programs

. The programs don't initiate unless you're looking at a web page that's requesting you to input something namely an email address. So the association is made automatically and in fact. But is the association made with each individual web page or with the domain site itself? Well it spam x argues that it's made with the domain site itself because it has several web pages. Right because it has several web pages but as resonate says what we're talking about here you can't have a website unless it has at least one web page. All right so when we when we talk about the abstraction what are we doing when we detonate when we dedicate use of either program to an entity what you're trying to do is you're trying to respond to an entity that is hosting this web page and is asking for an email address. You're trying to dedicate an alias email address a disposable email address that that entity will then respond to so that your actual email address isn't cluttered up. Well that process of automatically associating with the web page or the domain site whatever it might be it happens in both programs in the same way as mr. Green's declaration states that pages of 86 and 87 of the record and if you can press that with pages 199 through 201 which is the Macintosh declaration both programs in the same manner performing the same function and coming to the same result both literally and by the doctrine of equivalents are associating with the web page and whether it's it's parsing the domain by using the algorithm I believe that spamics uses document domain and and emailius the 41 patent uses document URL which identifies this specific web page it is associating with the web page that you're responding to

. All right so when we when we talk about the abstraction what are we doing when we detonate when we dedicate use of either program to an entity what you're trying to do is you're trying to respond to an entity that is hosting this web page and is asking for an email address. You're trying to dedicate an alias email address a disposable email address that that entity will then respond to so that your actual email address isn't cluttered up. Well that process of automatically associating with the web page or the domain site whatever it might be it happens in both programs in the same way as mr. Green's declaration states that pages of 86 and 87 of the record and if you can press that with pages 199 through 201 which is the Macintosh declaration both programs in the same manner performing the same function and coming to the same result both literally and by the doctrine of equivalents are associating with the web page and whether it's it's parsing the domain by using the algorithm I believe that spamics uses document domain and and emailius the 41 patent uses document URL which identifies this specific web page it is associating with the web page that you're responding to. My understanding let's let's try out a hypothetical and see if I understand the way the two systems work. Suppose that just to take an example I'm real life that I click on to expedia.com and I'm interested in a number of transactions in the course of of visiting that site and several of the different pages that I visit each request an email address from me. If I understand spamics correctly that will create a different email I mean I'm sorry spamics will create a single email address for the entire domain and each time I'm asked to for my email address it will simply give the the expedia

. My understanding let's let's try out a hypothetical and see if I understand the way the two systems work. Suppose that just to take an example I'm real life that I click on to expedia.com and I'm interested in a number of transactions in the course of of visiting that site and several of the different pages that I visit each request an email address from me. If I understand spamics correctly that will create a different email I mean I'm sorry spamics will create a single email address for the entire domain and each time I'm asked to for my email address it will simply give the the expedia.com domain email address that is created correct? Well I'm not certain that that is correct. I think that's what that leads you not to be certain. Well because what you have to do is you are you are basically parsing the domain from the web page that made the request and if it was expedia or if it was cnn.com or it was the course it is the course web page and in equivalent function the email use product does essentially the same thing actually does the same

.com domain email address that is created correct? Well I'm not certain that that is correct. I think that's what that leads you not to be certain. Well because what you have to do is you are you are basically parsing the domain from the web page that made the request and if it was expedia or if it was cnn.com or it was the course it is the course web page and in equivalent function the email use product does essentially the same thing actually does the same. Well never mind it may be this what is the question is what is the patent require and the simply requires that the association is being made automatically. But the patent will if I understand it the patent will create a different email address for each of those pages correct? It actually does not necessarily have to do that for each of those addresses. What it does is the patented product the 41 product will will identify and parse in the same way the the web page that is making that request whether it's on cnn.com this is explaining the instructions

. Well never mind it may be this what is the question is what is the patent require and the simply requires that the association is being made automatically. But the patent will if I understand it the patent will create a different email address for each of those pages correct? It actually does not necessarily have to do that for each of those addresses. What it does is the patented product the 41 product will will identify and parse in the same way the the web page that is making that request whether it's on cnn.com this is explaining the instructions. Well no keep in mind my hypothetical I have multiple net web pages within a single domain. So I want you to be careful here to make sure that you describe the patented system correctly. Now your assertion is that the patented system doesn't necessarily create different email addresses for each web page it can create a single email address for the domain and repeat that with respect to each web page. We're talking about the spamics product now

. Well no keep in mind my hypothetical I have multiple net web pages within a single domain. So I want you to be careful here to make sure that you describe the patented system correctly. Now your assertion is that the patented system doesn't necessarily create different email addresses for each web page it can create a single email address for the domain and repeat that with respect to each web page. We're talking about the spamics product now. But the patent. The patented process as I understand it yes it can do that with regard to the but the source and the source for both products and the association at the association stage both products are taking the web page to parse that information. Yeah I know that's where they start and then questions where do they end up that is do they end up creating a single domain related new email address or do they create and does it create an email address that's specific to each web page my understanding of the invention was that it did the latter and you're telling me now no it does the form well no you're honored that the the invention creates an alias email address that will will attach to each of the specific web pages that are made to each of those addresses different at each of those addresses can be different but it also can it can attach to the to the broader web domain because that is that is where that is what hosts each of the individual web page but how does it become dedicated then to use and then it becomes dedicated for you to do that by the entity because it has attached it has the the entity that's making the initial request is the entity that is associated with the web page that first made that request so if it's made multiple times your honor in relation to what you're asking and this by the way demonstrate both the automatic nature of it and the dedicated for use nature of it once the programs are lost and both programs do this but let's talk about the infringing aspects of the span x product once well let's talk a little bit about the way that the patent system dedicates the alias email address with each web page that has to be associated with each web page that correct that's correct each one of the web pages has a dedicated email address right then there's and there is right there's an algorithm that that associates the according to mr. McIntosh it's the same one for each web page and it would be the same one for each web page was it a separate one is it a separate email address for each web page that makes the request is that no no is it a different alias web page being unique to each one of the web pages all right it is that's what you argued before the patent offers the argument to overcome the Kennedy right a page a lot of the patent i know it's in a stature or brief yes there was a dedicated for use by an entity associated with each web page yes entitled the entity that sent email messages to the user and addressing each targeted web page so it's a separate email address for each web page so and that web page is dedicated to that alias right and the actually the web page is dedicated to the entity the the actual wording of the patent is that an association is made automatically that is dedicated for use by an entity that is associated with the web page all right and that the automatic application of it happens without additional user input or intervention once the program is launched and the analogy that was made in college net about the automatic association is just that once the program is launched and on either either competing product you click create address or create email you you have made the association with the with the web page that is making that request and a response to your otter's question about well can you dis spamics then have have an additional feature which permits that to be automatically to populate that field automatically with regard to all web pages in the same domain yes but that doesn't defeat the limitation at all because according to college net and and according to take access and others it can the word dedicated to an entity can mean one entity or more than one entity in the same in the same manner that a web signed hosts multiple web pages by definition it has to if I could return to the question that you and I were discussing a moment ago yes the basis for my supposition that the patented device attached a unique and different new email address to each web page is principally column 10 lines 28 through looks like about 37 all right which says that upon receiving the email forwarding address request so forth the system determines if an email forwarding address already exists in the users account that is associated with the web page address the URL right yes your order is included in the email forwarding address if the such an email forwarding address does not exist in the database the database server creates a new standard forwarding address that is automatically associated with the web page address URL and a science properties to the email forwarding address which suggests to me at least maybe I'm not reading this correctly yes to me that if the system does not find a an email address that's specific to that URL then it creates a new one why isn't that the correct reading of that passage I don't quarrel with your owners in that case if that's the way the patented system works then it does create it would seem a specific new email address for every web page i

. But the patent. The patented process as I understand it yes it can do that with regard to the but the source and the source for both products and the association at the association stage both products are taking the web page to parse that information. Yeah I know that's where they start and then questions where do they end up that is do they end up creating a single domain related new email address or do they create and does it create an email address that's specific to each web page my understanding of the invention was that it did the latter and you're telling me now no it does the form well no you're honored that the the invention creates an alias email address that will will attach to each of the specific web pages that are made to each of those addresses different at each of those addresses can be different but it also can it can attach to the to the broader web domain because that is that is where that is what hosts each of the individual web page but how does it become dedicated then to use and then it becomes dedicated for you to do that by the entity because it has attached it has the the entity that's making the initial request is the entity that is associated with the web page that first made that request so if it's made multiple times your honor in relation to what you're asking and this by the way demonstrate both the automatic nature of it and the dedicated for use nature of it once the programs are lost and both programs do this but let's talk about the infringing aspects of the span x product once well let's talk a little bit about the way that the patent system dedicates the alias email address with each web page that has to be associated with each web page that correct that's correct each one of the web pages has a dedicated email address right then there's and there is right there's an algorithm that that associates the according to mr. McIntosh it's the same one for each web page and it would be the same one for each web page was it a separate one is it a separate email address for each web page that makes the request is that no no is it a different alias web page being unique to each one of the web pages all right it is that's what you argued before the patent offers the argument to overcome the Kennedy right a page a lot of the patent i know it's in a stature or brief yes there was a dedicated for use by an entity associated with each web page yes entitled the entity that sent email messages to the user and addressing each targeted web page so it's a separate email address for each web page so and that web page is dedicated to that alias right and the actually the web page is dedicated to the entity the the actual wording of the patent is that an association is made automatically that is dedicated for use by an entity that is associated with the web page all right and that the automatic application of it happens without additional user input or intervention once the program is launched and the analogy that was made in college net about the automatic association is just that once the program is launched and on either either competing product you click create address or create email you you have made the association with the with the web page that is making that request and a response to your otter's question about well can you dis spamics then have have an additional feature which permits that to be automatically to populate that field automatically with regard to all web pages in the same domain yes but that doesn't defeat the limitation at all because according to college net and and according to take access and others it can the word dedicated to an entity can mean one entity or more than one entity in the same in the same manner that a web signed hosts multiple web pages by definition it has to if I could return to the question that you and I were discussing a moment ago yes the basis for my supposition that the patented device attached a unique and different new email address to each web page is principally column 10 lines 28 through looks like about 37 all right which says that upon receiving the email forwarding address request so forth the system determines if an email forwarding address already exists in the users account that is associated with the web page address the URL right yes your order is included in the email forwarding address if the such an email forwarding address does not exist in the database the database server creates a new standard forwarding address that is automatically associated with the web page address URL and a science properties to the email forwarding address which suggests to me at least maybe I'm not reading this correctly yes to me that if the system does not find a an email address that's specific to that URL then it creates a new one why isn't that the correct reading of that passage I don't quarrel with your owners in that case if that's the way the patented system works then it does create it would seem a specific new email address for every web page i.e. every URL yes it yes it would for every URL I thought you were telling me before that the patented system doesn't necessarily create a new the association your honor and I apologize for my lack of of specificity with regard to this but perhaps even lack of of the proper terminology and usage when you are attaching the when you're automatically associating the the new email is the new alias email with a web page you have already made that association let's go back to my and i'm and i'm in here now because you know i want i want to make sure i understand let's be specific okay let's be specific to the example i had of expedient i'm go to expedient and i visit three different pages i want a hotel in Paris i want to flight to Berlin and i want a hotel in Berlin it so happens i don't think this is really the way expedient works but it so happens that each of them requests my email address they want your email address and they want to does does this system create three separate email addresses for me or does it create one for my three web pages visited in connection with the expo before anyone before anyone patent would determine whether you have already uh and it does us automatically whether you have already associated an alias email address with that particular URL or web page okay i have never visited expedient before so i have never associated an email address with each of those you are else so i go url one url two url three all within the domain of expedient does the system of the 481 create three email addresses for me or one i my understanding of the system is the the 481 system will look at the url and determine by having parsed from the web page the domain name whether you have actually assigned that email address to any of the subsequent requesting entities that are asking for your your and in terms of whether it does so automatically i'm having a hard time translating your answer into the question the the answer i was looking for which is either three or one i believe that according to the patented process in columns ten and eleven that you're talking about it would create three separate email addresses i don't like all right certainly i'm sorry okay so it makes one all right and again for matters of technical i think that this is a matter of of technical concern that illustrates why perhaps summary judgment on on this aspect of the i'm i'm advised that that the email address which attaches to the entities dedicated for use by the entity would apply to the entity to the domain that that is associated with the entity and while the 41 patent allows more specificity that that the actual process would attach the email address to any entity that is associated with the web page that was within that domain okay thank you mr. chamberlin we will restore your two minutes of rebuttal time all right thank you we'll hear from the closing council mr. block can we just start right from the beginning mr

.e. every URL yes it yes it would for every URL I thought you were telling me before that the patented system doesn't necessarily create a new the association your honor and I apologize for my lack of of specificity with regard to this but perhaps even lack of of the proper terminology and usage when you are attaching the when you're automatically associating the the new email is the new alias email with a web page you have already made that association let's go back to my and i'm and i'm in here now because you know i want i want to make sure i understand let's be specific okay let's be specific to the example i had of expedient i'm go to expedient and i visit three different pages i want a hotel in Paris i want to flight to Berlin and i want a hotel in Berlin it so happens i don't think this is really the way expedient works but it so happens that each of them requests my email address they want your email address and they want to does does this system create three separate email addresses for me or does it create one for my three web pages visited in connection with the expo before anyone before anyone patent would determine whether you have already uh and it does us automatically whether you have already associated an alias email address with that particular URL or web page okay i have never visited expedient before so i have never associated an email address with each of those you are else so i go url one url two url three all within the domain of expedient does the system of the 481 create three email addresses for me or one i my understanding of the system is the the 481 system will look at the url and determine by having parsed from the web page the domain name whether you have actually assigned that email address to any of the subsequent requesting entities that are asking for your your and in terms of whether it does so automatically i'm having a hard time translating your answer into the question the the answer i was looking for which is either three or one i believe that according to the patented process in columns ten and eleven that you're talking about it would create three separate email addresses i don't like all right certainly i'm sorry okay so it makes one all right and again for matters of technical i think that this is a matter of of technical concern that illustrates why perhaps summary judgment on on this aspect of the i'm i'm advised that that the email address which attaches to the entities dedicated for use by the entity would apply to the entity to the domain that that is associated with the entity and while the 41 patent allows more specificity that that the actual process would attach the email address to any entity that is associated with the web page that was within that domain okay thank you mr. chamberlin we will restore your two minutes of rebuttal time all right thank you we'll hear from the closing council mr. block can we just start right from the beginning mr. block and see if you get the same answer to my expedient question that mr. chamberlin did i had a whole long presentation but i would be more than happy no no i'm sorry you can get into your presentation but your question gets the heart of the matter and an actual fact if we look at the 41 patent and not look at emailias there the plaintiff's product but look at the patent itself and the defined terms then the answer is yes their their product creates three separate emails three sample uh forwarding email addresses okay now itself that okay i i thought that would probably be your short answer now for the slightly longer version right what is it that mr. chamberlin said immediately before he sat down that you disagree with with respect to the way he got to the conclusion that the 481 patent is capable of creating only one email address as opposed to three in my expedient case claim one yeah pounded on this column 16 and ultra the page number is that during any internet session where a user is viewing a web page that's important that includes a prompt for an email address a method of creating a foreign email for an address to said user now web page was defined in the marketing determination as a single web page which may be part of a larger body known as a website so based on the claims the 41 patent will create a a forwarding email address for each web page that you go to at a domain that asks for an email address now that that their product is able to never meant exactly that spam x does not do that spam x focuses on the domain so that at for instance you go to expedient now i believe you could at expedient go rent get a flight and a hotel room and a car i could be wrong on this but assuming for a second each domain each website is for each location is asking for another for an email address under in spam x it will be the same email you can use the same email you don't have to you don't even have to use an associated email well we'll get to spam x in a second but it's one domain it's one disposable email for all the whole domain or you can choose to do that for for the 41 patent it's a different email address which is put into a folder so that you could have actually i'm not strike that it's a different email address for every web page as part of that website which is unique to each one of those pages exactly and because of that it's spam x is not the 41 patent it's not infringing on the patent on a roll could use on the spam x couldn't you have one one web page one email for every web page no and the reason is because spam x doesn't work that way spam x spam x will associate the domain so if you use a domain it will it doesn't go to the web page you can choose to use multiple web disposable email addresses for the same domain or you could use is that correct yes but but there is no automatic association use different email addresses for the same domain using spam x but it's not about page it's about domain in other words the patent is focused on pages the the spam x is focused on the domain it's a it's a different analysis a different function it's a different way of doing things it's not a one page website the two systems operate identically in that central situation the two systems don't operate the same at all but for one page one set so one page website at that point there would be one email address for one disposable or foring email address at issue but but the systems don't work the same if I what is the difference then at that point the difference is how this how the email the how spam x creates the disposable email address how how it the steps they're taken for that this this association aspect and whether or not it's automatic is also completely different and we we we submit that it is not automatic in any way with regard to spam x what why is it automatic all you need to do is to click two different steps before you select the email actually no that's that's not quite right or for spam x first off it's a separate email it's a separate website it's a separate the application merely opens up that website the user must launch the application for spam x the user must choose to create an email address they must either accept defaults or complete a questionnaire the user must submit i accept the creation of the email and then only then is the disposable email address associated with a with the provided information it's not necessarily the domain or even or or anything else it's just the provided information you don't have to use spam x is not about creating this disposable email for for web pages it's for creating the disposable email for anyone who asks for email address whether you're joining a bar association they're asking for email address whether friends want an email address or or associates or whether a website want a domain request the information it's not the focus is not on domain it's on the creation of this web of this disposable email address it's a different it's a different focus for the system there's there's nothing really automatic here because you have to put in the fields or accept the fields it's a different it's entirely different technology well those are actually excuse me let me ask you one question i could please the inclaim one the automatically associate with said web page language yes um focusing in particularly on automatically associated are those words directed to claim one setting up this arrangement or does the automatically associate refer to the kind of situation that exists after the forwarding email addresses in place and somebody goes back to the website again i'm sorry can you can you reset the yeah let me let me ask you let me ask it try and get at it automatically associate assume for the moment that someone has well what does automatically associate refer to does it refer to the process does it exist in the process of creating and forwarding an email forwarding address okay or does automatically associate it refer to the email address being automatically associated after one has established the forwarding address under the pattern it's the former all the steps go together it's the creation the the email is created with regard to the the the forwarding email is created with regard to that web page in looking at it i mean i was really says a unique email forwarding address for the user that is or will be automatically associate with said web page exactly it'll automatically in other words after you set up this forwarding address it goes to the target email address if you go back to the website you have a forwarding address that is now automatically associated with that website right right but spam makes doesn't do it no i'm not i'm not yes yes but you are correct in terms of what the right i said website is just a web page that's right um if i could address does that answer your question yes and the the runners have any quick if i could address something that was raised by my my learned opposition he has said the college net is only that that their challenge and the reply papers with regard to the determination is about the application that's a with regards to associated or actually associated in terms of associate that's a shoehorn this is the at no point in the marketing hearing at no point in their initial brief do they ever challenge the definition of associated found within associated on sorry automatic with the definition of automatically associated with that this is especially troublesome because the marketing papers are not in the brief are not in the the the record on appeal there is spam it's nowhere it's nowhere until the reply this this is litigation this is appeal by ambush if we had if this was addressed previously we could have uh uh dealt with um emailing our college net and how it's immaterial to the kind of but by putting it in their reply papers and not including the marketing papers so there can be an analysis of what actually was argued below and the determination by the court it's completely inappropriate um i just just as an emphasis or to demonstrate why this was not even an issue until the reply the as i said college net was never cited either below or in the initial brief the argument presented in the reply is therefore raised for the first time in the action the the the the marketing determination uh the order is not in the the condemned to the initial brief and in fact the record of appeal contains none of the marketing submissions it's just this annuishing now if we are this is a record on a p-mini appendix material i'm sorry uh actually no go the the record on a appeal here the appendix right the appendix and the the record on the appeal it is everything right on the district court you're not suggesting right no no no i apologize in the agenda uh the appendix there is no marketing submissions it's just not there but there was no challenge to the determination and the uh way that the district court interpreted the claim terms in the initial brief that's correct this uh application or this attempt to reply college net to to the term is something that is really i believe an attempt to to challenge the marketing term are you referring to the i guess is a statement page seven of the reply brief um where it says the district courts construction and application of the term automatically is also contrary to controlling the precedent yes this court it's so you're saying there they've said previously there's no claim construction challenge now they are challenging exactly and this is not the first time they did this one do in their initial brief the um they raised for the first time uh claiming that spamics intentionally copied the 41 patent that that's just that that that is for the first time in the appeal as i put it in my in the opposition it's just completely inappropriate uh if we're forced to deal with college net which uh we might be um i would like to point out to the court that it's immaterial college net dealt with the term automatic uh defining but merely upholding the definition of the term as once initiated the function is performed by a machine without need for manually performing the function the term at issue is not automatic it's automatically associated with now there is no real question that spamics does nothing automatically particularly associate spamics does not launch without the user interaction spamics doesn't create a disposable email without user interaction and spamics doesn't associate or doesn't even put in a definition until the user authorizes therefore the automatic under collegiate doesn't change the the findings of the lower court um now there is another issue here that that has not been addressed and that is the dedicated for use spamics um the spamics as disposable emails are not dedicated for use as the term is construed now dedicated for use has been construed as being solely and exclusively exclusively for use the spamics disposable email emails can be dedicated for multiple site domains that the the user can can dedicate this for any site at once it does any any website at once any domain at once it's not one particular website the other is that there is nothing that spamics does that stops the website from disclosing and disseminating email there is no apric there's no part of spamics which which requires that that disposable email be used only by the website the website itself is also free too is so to disseminate that and other people can let me see what is it in the looking at the claim again back to claim one word says said email forwarding address being dedicated for use by an anti-associate was said wept where there is there the limitation that only uh that you in other words if you go on if I go on I create a forwarding email address okay where is it in the pattern that says that forwarding email address can't be used by or can't be associated with more than one web page well it says for being dedicated for use by an anti-associate with the web page now dedicated if I if I set I'm sorry interrupting with the time is running sure if I set up say an email address for a travelosity website and then a uh google website um or web page um and it's the same email address isn't still that email address dedicated for use by each of them well but the the if you go we have to go back to the mark from hearing the markman's determination the claim construction termination dedicated for use has been defined as solely and exclusively for use yeah so because it's solely and exclusively only one web only one domain uh that that that didn't get any further I mean solely exclusive it would have been maybe the judge didn't go further than that didn't say solely and exclusively for use by just one well it when you when you say solely and exclusively it has to be solely exclusively for someone uh in other words either solely and exclusively for use right could be for some other purpose I'm sorry well the her definition was solely and exclusively for use correct right right that says okay this is only for use could there not be some other purpose well email is and i i think we could look at it want to it if we're talking about use as in the use by the user by by by the client of spamming and they're only they're they're limited to the to the use of the uh disposable email for solely exclusively for that web page that website actually not web page because spamming is another deal with web page but that website then the answer is this doesn't apply because spamming in no way limits the use of that disposable email for anything now if we're looking at it as what about this the the party that you've the web page the domain the domain there's no limitation that the web page that the domain use that disposable email only for themselves to contact the the user that there is no limitation on their ability to disseminate so if you look at it from any standpoint there is no solely and exclusively or uh um dedication by spam it's just doesn't exist it's not applicable um let me let me let's see if let me see if I again to come back to my homely example of expedient lovely website if um uh does this language uh being dedicated for use by an entity associated with said web page not cover the case assume let's assume the entity in question is expedia okay not the particular web page uh but expedia and expedia is associated with all the web pages in the domain therefore why doesn't this language being dedicated for use by expedia which is associated with the particular web page what what why doesn't that cover that sort of case that language because if I understand your question because there is nothing in spamics which limits expedia to use it just for that purpose so expedia can self disseminate the disclose your email address which is what spamming is created by there there is no limitation on the use of expedia yeah is there any other questions I think I've had a question well i just a follow up with Judge Bryson asked what happens in the situation where you do have let's say expedia is that considered a web page by itself or is it considered a domain determination well expedia or google or yada have it is a domain that has multiple web pages as part of the web within that domain within that domain spam x focuses on the general domain the 41 patent focuses on the web pages if I could just so if I understand you correctly if and other non web related functions is spamics and I apologize they cut off you what you're saying if judge Bryson's question and with regard to expedia under the patent before any one patent you have the domain of expedia you would have three or four different websites of web pages within that domain that's right under the 41 patent each one of the websites would have a different and unique email address exactly that would be automatically generated when a request is made exactly and and however under spam x you could have one email address for all of the domain for every single one of those web pages be the same one and if I could just add under spam x you have to choose to apply the email there's no automatic the the the the disposable email there's no automatic aspect to it so this is one of these situations where there really is very little that that is the same or similar between the patent and the alleged infringement but we've we've gone well over the time I appreciate your honor is one thanks including caught you can share it with us but otherwise let's move on to a battle okay I just want to say that there is no that as the lower court probably dismiss the current patent infringement action because click through spam x under the claim construction of the 41 does not automatically associate any disposable email with anything it does not dedicate or limit use of disposable email by any sender receiver and it does not associate any disposable email address with a web page rather the domain thank you for your honors and doldens and have a roll you mr. Chamberlain you have two minutes two minutes to sum up the points that your honor made and judge shawl made you know I just want to question yes right this one I understood the claim construction was not an issue in this case it says it's not a reply brief it says the district courts claim construction an application of the term automatically is contrary to control are you perhaps challenging claim perhaps we're not perhaps it should have more art or or pointedly read as applied consistent so to make it very clear you don't you have no we're not challenging any of the district courts we were not controlling with the claim construction because actually as the mark when findings were made and we argued them on cross motions it was an interpretive issue in the context of applicable law and this is why your honors both hit upon the actual limitations of the patent these are the two limitations at issue that spam x automatically associates the email address and here's the application and this is what college net is relevant to without additional user input or interaction at the time of the association in other words the fields are being in college net the fields were being automatically input when you when you hit the button that said you know insert all of the information on the on the college applications same is true with regard to the spam x product and the 480 one patent the association is automatically made whether it's made through you or or domain and your honor hit on exactly what the limitation is and why this is an infringing product it dedicates the alias email address for use plan entity not by a web page by an entity that's associated with the web page so what the 480 one patent does is it the limitation is that you associate the alias email address with the entity that is associated with the web page to determine the entity the process that both products go through is that all all web pages at the same domain are presumed to be associated with the same entity and under the 480 one patent the URL determines the entity the patent uses the URL and then in practice all web pages at the same domain are generally part of the same entity in response to your honor question was it three or one let's assume that that the 480 one patent contemplates then three separate alias email addresses for each of those separate web pages if in fact they are separate within expedio or within travel us or whatever the fact that as jishol pointed out that spam x might use or recycle the same email address dedicated to that entity that's associated with each web page still infringes they are they can use one or more than one because it is dedicated to the entity it's the entity not the web page that that is the subject of the limitation of the patent it's the entity the focus is on the entity and we've explained that your honor in pages 8 through 12 the reply I don't think that that's hitting after the bell at all that's simply explaining in response to arguments that are made at pages 13 through 15 of the responding brief what it is we're talking about specifically thank you mr

. block and see if you get the same answer to my expedient question that mr. chamberlin did i had a whole long presentation but i would be more than happy no no i'm sorry you can get into your presentation but your question gets the heart of the matter and an actual fact if we look at the 41 patent and not look at emailias there the plaintiff's product but look at the patent itself and the defined terms then the answer is yes their their product creates three separate emails three sample uh forwarding email addresses okay now itself that okay i i thought that would probably be your short answer now for the slightly longer version right what is it that mr. chamberlin said immediately before he sat down that you disagree with with respect to the way he got to the conclusion that the 481 patent is capable of creating only one email address as opposed to three in my expedient case claim one yeah pounded on this column 16 and ultra the page number is that during any internet session where a user is viewing a web page that's important that includes a prompt for an email address a method of creating a foreign email for an address to said user now web page was defined in the marketing determination as a single web page which may be part of a larger body known as a website so based on the claims the 41 patent will create a a forwarding email address for each web page that you go to at a domain that asks for an email address now that that their product is able to never meant exactly that spam x does not do that spam x focuses on the domain so that at for instance you go to expedient now i believe you could at expedient go rent get a flight and a hotel room and a car i could be wrong on this but assuming for a second each domain each website is for each location is asking for another for an email address under in spam x it will be the same email you can use the same email you don't have to you don't even have to use an associated email well we'll get to spam x in a second but it's one domain it's one disposable email for all the whole domain or you can choose to do that for for the 41 patent it's a different email address which is put into a folder so that you could have actually i'm not strike that it's a different email address for every web page as part of that website which is unique to each one of those pages exactly and because of that it's spam x is not the 41 patent it's not infringing on the patent on a roll could use on the spam x couldn't you have one one web page one email for every web page no and the reason is because spam x doesn't work that way spam x spam x will associate the domain so if you use a domain it will it doesn't go to the web page you can choose to use multiple web disposable email addresses for the same domain or you could use is that correct yes but but there is no automatic association use different email addresses for the same domain using spam x but it's not about page it's about domain in other words the patent is focused on pages the the spam x is focused on the domain it's a it's a different analysis a different function it's a different way of doing things it's not a one page website the two systems operate identically in that central situation the two systems don't operate the same at all but for one page one set so one page website at that point there would be one email address for one disposable or foring email address at issue but but the systems don't work the same if I what is the difference then at that point the difference is how this how the email the how spam x creates the disposable email address how how it the steps they're taken for that this this association aspect and whether or not it's automatic is also completely different and we we we submit that it is not automatic in any way with regard to spam x what why is it automatic all you need to do is to click two different steps before you select the email actually no that's that's not quite right or for spam x first off it's a separate email it's a separate website it's a separate the application merely opens up that website the user must launch the application for spam x the user must choose to create an email address they must either accept defaults or complete a questionnaire the user must submit i accept the creation of the email and then only then is the disposable email address associated with a with the provided information it's not necessarily the domain or even or or anything else it's just the provided information you don't have to use spam x is not about creating this disposable email for for web pages it's for creating the disposable email for anyone who asks for email address whether you're joining a bar association they're asking for email address whether friends want an email address or or associates or whether a website want a domain request the information it's not the focus is not on domain it's on the creation of this web of this disposable email address it's a different it's a different focus for the system there's there's nothing really automatic here because you have to put in the fields or accept the fields it's a different it's entirely different technology well those are actually excuse me let me ask you one question i could please the inclaim one the automatically associate with said web page language yes um focusing in particularly on automatically associated are those words directed to claim one setting up this arrangement or does the automatically associate refer to the kind of situation that exists after the forwarding email addresses in place and somebody goes back to the website again i'm sorry can you can you reset the yeah let me let me ask you let me ask it try and get at it automatically associate assume for the moment that someone has well what does automatically associate refer to does it refer to the process does it exist in the process of creating and forwarding an email forwarding address okay or does automatically associate it refer to the email address being automatically associated after one has established the forwarding address under the pattern it's the former all the steps go together it's the creation the the email is created with regard to the the the forwarding email is created with regard to that web page in looking at it i mean i was really says a unique email forwarding address for the user that is or will be automatically associate with said web page exactly it'll automatically in other words after you set up this forwarding address it goes to the target email address if you go back to the website you have a forwarding address that is now automatically associated with that website right right but spam makes doesn't do it no i'm not i'm not yes yes but you are correct in terms of what the right i said website is just a web page that's right um if i could address does that answer your question yes and the the runners have any quick if i could address something that was raised by my my learned opposition he has said the college net is only that that their challenge and the reply papers with regard to the determination is about the application that's a with regards to associated or actually associated in terms of associate that's a shoehorn this is the at no point in the marketing hearing at no point in their initial brief do they ever challenge the definition of associated found within associated on sorry automatic with the definition of automatically associated with that this is especially troublesome because the marketing papers are not in the brief are not in the the the record on appeal there is spam it's nowhere it's nowhere until the reply this this is litigation this is appeal by ambush if we had if this was addressed previously we could have uh uh dealt with um emailing our college net and how it's immaterial to the kind of but by putting it in their reply papers and not including the marketing papers so there can be an analysis of what actually was argued below and the determination by the court it's completely inappropriate um i just just as an emphasis or to demonstrate why this was not even an issue until the reply the as i said college net was never cited either below or in the initial brief the argument presented in the reply is therefore raised for the first time in the action the the the the marketing determination uh the order is not in the the condemned to the initial brief and in fact the record of appeal contains none of the marketing submissions it's just this annuishing now if we are this is a record on a p-mini appendix material i'm sorry uh actually no go the the record on a appeal here the appendix right the appendix and the the record on the appeal it is everything right on the district court you're not suggesting right no no no i apologize in the agenda uh the appendix there is no marketing submissions it's just not there but there was no challenge to the determination and the uh way that the district court interpreted the claim terms in the initial brief that's correct this uh application or this attempt to reply college net to to the term is something that is really i believe an attempt to to challenge the marketing term are you referring to the i guess is a statement page seven of the reply brief um where it says the district courts construction and application of the term automatically is also contrary to controlling the precedent yes this court it's so you're saying there they've said previously there's no claim construction challenge now they are challenging exactly and this is not the first time they did this one do in their initial brief the um they raised for the first time uh claiming that spamics intentionally copied the 41 patent that that's just that that that is for the first time in the appeal as i put it in my in the opposition it's just completely inappropriate uh if we're forced to deal with college net which uh we might be um i would like to point out to the court that it's immaterial college net dealt with the term automatic uh defining but merely upholding the definition of the term as once initiated the function is performed by a machine without need for manually performing the function the term at issue is not automatic it's automatically associated with now there is no real question that spamics does nothing automatically particularly associate spamics does not launch without the user interaction spamics doesn't create a disposable email without user interaction and spamics doesn't associate or doesn't even put in a definition until the user authorizes therefore the automatic under collegiate doesn't change the the findings of the lower court um now there is another issue here that that has not been addressed and that is the dedicated for use spamics um the spamics as disposable emails are not dedicated for use as the term is construed now dedicated for use has been construed as being solely and exclusively exclusively for use the spamics disposable email emails can be dedicated for multiple site domains that the the user can can dedicate this for any site at once it does any any website at once any domain at once it's not one particular website the other is that there is nothing that spamics does that stops the website from disclosing and disseminating email there is no apric there's no part of spamics which which requires that that disposable email be used only by the website the website itself is also free too is so to disseminate that and other people can let me see what is it in the looking at the claim again back to claim one word says said email forwarding address being dedicated for use by an anti-associate was said wept where there is there the limitation that only uh that you in other words if you go on if I go on I create a forwarding email address okay where is it in the pattern that says that forwarding email address can't be used by or can't be associated with more than one web page well it says for being dedicated for use by an anti-associate with the web page now dedicated if I if I set I'm sorry interrupting with the time is running sure if I set up say an email address for a travelosity website and then a uh google website um or web page um and it's the same email address isn't still that email address dedicated for use by each of them well but the the if you go we have to go back to the mark from hearing the markman's determination the claim construction termination dedicated for use has been defined as solely and exclusively for use yeah so because it's solely and exclusively only one web only one domain uh that that that didn't get any further I mean solely exclusive it would have been maybe the judge didn't go further than that didn't say solely and exclusively for use by just one well it when you when you say solely and exclusively it has to be solely exclusively for someone uh in other words either solely and exclusively for use right could be for some other purpose I'm sorry well the her definition was solely and exclusively for use correct right right that says okay this is only for use could there not be some other purpose well email is and i i think we could look at it want to it if we're talking about use as in the use by the user by by by the client of spamming and they're only they're they're limited to the to the use of the uh disposable email for solely exclusively for that web page that website actually not web page because spamming is another deal with web page but that website then the answer is this doesn't apply because spamming in no way limits the use of that disposable email for anything now if we're looking at it as what about this the the party that you've the web page the domain the domain there's no limitation that the web page that the domain use that disposable email only for themselves to contact the the user that there is no limitation on their ability to disseminate so if you look at it from any standpoint there is no solely and exclusively or uh um dedication by spam it's just doesn't exist it's not applicable um let me let me let's see if let me see if I again to come back to my homely example of expedient lovely website if um uh does this language uh being dedicated for use by an entity associated with said web page not cover the case assume let's assume the entity in question is expedia okay not the particular web page uh but expedia and expedia is associated with all the web pages in the domain therefore why doesn't this language being dedicated for use by expedia which is associated with the particular web page what what why doesn't that cover that sort of case that language because if I understand your question because there is nothing in spamics which limits expedia to use it just for that purpose so expedia can self disseminate the disclose your email address which is what spamming is created by there there is no limitation on the use of expedia yeah is there any other questions I think I've had a question well i just a follow up with Judge Bryson asked what happens in the situation where you do have let's say expedia is that considered a web page by itself or is it considered a domain determination well expedia or google or yada have it is a domain that has multiple web pages as part of the web within that domain within that domain spam x focuses on the general domain the 41 patent focuses on the web pages if I could just so if I understand you correctly if and other non web related functions is spamics and I apologize they cut off you what you're saying if judge Bryson's question and with regard to expedia under the patent before any one patent you have the domain of expedia you would have three or four different websites of web pages within that domain that's right under the 41 patent each one of the websites would have a different and unique email address exactly that would be automatically generated when a request is made exactly and and however under spam x you could have one email address for all of the domain for every single one of those web pages be the same one and if I could just add under spam x you have to choose to apply the email there's no automatic the the the the disposable email there's no automatic aspect to it so this is one of these situations where there really is very little that that is the same or similar between the patent and the alleged infringement but we've we've gone well over the time I appreciate your honor is one thanks including caught you can share it with us but otherwise let's move on to a battle okay I just want to say that there is no that as the lower court probably dismiss the current patent infringement action because click through spam x under the claim construction of the 41 does not automatically associate any disposable email with anything it does not dedicate or limit use of disposable email by any sender receiver and it does not associate any disposable email address with a web page rather the domain thank you for your honors and doldens and have a roll you mr. Chamberlain you have two minutes two minutes to sum up the points that your honor made and judge shawl made you know I just want to question yes right this one I understood the claim construction was not an issue in this case it says it's not a reply brief it says the district courts claim construction an application of the term automatically is contrary to control are you perhaps challenging claim perhaps we're not perhaps it should have more art or or pointedly read as applied consistent so to make it very clear you don't you have no we're not challenging any of the district courts we were not controlling with the claim construction because actually as the mark when findings were made and we argued them on cross motions it was an interpretive issue in the context of applicable law and this is why your honors both hit upon the actual limitations of the patent these are the two limitations at issue that spam x automatically associates the email address and here's the application and this is what college net is relevant to without additional user input or interaction at the time of the association in other words the fields are being in college net the fields were being automatically input when you when you hit the button that said you know insert all of the information on the on the college applications same is true with regard to the spam x product and the 480 one patent the association is automatically made whether it's made through you or or domain and your honor hit on exactly what the limitation is and why this is an infringing product it dedicates the alias email address for use plan entity not by a web page by an entity that's associated with the web page so what the 480 one patent does is it the limitation is that you associate the alias email address with the entity that is associated with the web page to determine the entity the process that both products go through is that all all web pages at the same domain are presumed to be associated with the same entity and under the 480 one patent the URL determines the entity the patent uses the URL and then in practice all web pages at the same domain are generally part of the same entity in response to your honor question was it three or one let's assume that that the 480 one patent contemplates then three separate alias email addresses for each of those separate web pages if in fact they are separate within expedio or within travel us or whatever the fact that as jishol pointed out that spam x might use or recycle the same email address dedicated to that entity that's associated with each web page still infringes they are they can use one or more than one because it is dedicated to the entity it's the entity not the web page that that is the subject of the limitation of the patent it's the entity the focus is on the entity and we've explained that your honor in pages 8 through 12 the reply I don't think that that's hitting after the bell at all that's simply explaining in response to arguments that are made at pages 13 through 15 of the responding brief what it is we're talking about specifically thank you mr. jambal in the cases

Apparently the applicant is not in work. All right. Maybe if you could call Chambers and see it. She was coming. Well, we had a motion, but we'll postpone the motion. And we'll hear argument then first in Web 0 against Clip View, number 2009, 1483. Four new year honors may please the court. Harry Chamberlain, they have the book called Web 0 LLC. The two legal issues that are presented by this appeal deal with whether the Clip View Spamics product infringes on the 481 patent. The trial court had concluded that two of the limitations were not met. The two were not. The two that the trial court concluded were not met. Concerned whether the Spamics product automatically associates a disposable email address that is created by the product once it's launched with a web page that is then dedicated for use by the entity that's requesting that email. In which have meant that controlled by this court's precedence, in particular cases such as resonating versus alt-hand web systems and college net versus apply or sell, the district court's legal conclusions and construction of the patent limitations were in error. With regard to the automatic limitation, the question. Chamberlain and you challenging the court's claim construction? Well, saying it was improperly applied. It was improperly applied but was claim construction is accepted as stated by the court. Yes, Governor. Largely as we think that with regard to the application in particular with regard to the automatic, I don't want to quote all about that because we really do believe that with regard to those two limitations, this is nothing but a semantic quote and one that's in error at that. So what you're saying basically is that the claim construction was correct but was improperly applied. A loss is our friends who are doing with regard to both limitations just around, that's correct. We believe that the question is properly framed and then answered should have been that once the spamming program is activated, does that program associate an alias for disposable email address with a web page and we submit that click-views-owned evidence demonstrates that in fact it does and that process is automatic in the way that's specifically contemplated by the 481 program. To illustrate that, we've put schematic side by side in our opening brief pages 14 through 17 pages 25 and 26 explain that but in the reply brief we apply the college net analysis with regard to what constitutes an automatic association or an automatic step in a process. And according to college net any process or step that eliminates a manual task for the user is precisely the definition of automatic. In this case, in the case of the spamming the alias is automatically generated the user is not required to devise, to manually enter the alias email. The domain of the web page is automatically captured. In fact a spamming appains the web pages domain. It happens when the program is launched. Without requiring the user to determine or manually enter that web page is simply pops up on the screen. The alias and the web pages domain are automatically brought into a relationship and that's what the district court defined associated to me into bringing to relationship the parties are agreement about that. And that happens at the time that we have a create address for the for the spam x program and the contemplated 481 patent describes exactly that process. As illustrated in Exhibit 6 to the green declaration which was offered in support of click views, a motion for summary judgment of non-infringement, the spam x product specifically identifies the website domain by parsing the web page that's associated with the entity that's making the request. So without the automatic association to the web page the program is going to go no further and the user's optional ability later in the in the stream actually both products do this to make changes to the domain name or to add manually add more than one domain name. Don't change the automatic association at all it's simply an option. But the as I understand spam x associates the new email address with the domain and not the particular page. Right and we think that's a distinction with that a difference that is the one or more than one logical construct that college net and resonate both address. Resonate addresses in this way the term website is an abstraction and we have actual testimony from the inventor in this case, Mr. Mac and Cauchy from page 198. He describes it from a computer scientist point of view what we're talking about when we talk about a domain or a website it is a collection of web pages. So when college net refers to the fact that you've got an automatic association with a web page or more than one web page the abstraction here is that a website is simply a collection of these web pages. The web page that the user is looking at when a request to provide an email address is made is what kicks off both of these programs. The programs don't initiate unless you're looking at a web page that's requesting you to input something namely an email address. So the association is made automatically and in fact. But is the association made with each individual web page or with the domain site itself? Well it spam x argues that it's made with the domain site itself because it has several web pages. Right because it has several web pages but as resonate says what we're talking about here you can't have a website unless it has at least one web page. All right so when we when we talk about the abstraction what are we doing when we detonate when we dedicate use of either program to an entity what you're trying to do is you're trying to respond to an entity that is hosting this web page and is asking for an email address. You're trying to dedicate an alias email address a disposable email address that that entity will then respond to so that your actual email address isn't cluttered up. Well that process of automatically associating with the web page or the domain site whatever it might be it happens in both programs in the same way as mr. Green's declaration states that pages of 86 and 87 of the record and if you can press that with pages 199 through 201 which is the Macintosh declaration both programs in the same manner performing the same function and coming to the same result both literally and by the doctrine of equivalents are associating with the web page and whether it's it's parsing the domain by using the algorithm I believe that spamics uses document domain and and emailius the 41 patent uses document URL which identifies this specific web page it is associating with the web page that you're responding to. My understanding let's let's try out a hypothetical and see if I understand the way the two systems work. Suppose that just to take an example I'm real life that I click on to expedia.com and I'm interested in a number of transactions in the course of of visiting that site and several of the different pages that I visit each request an email address from me. If I understand spamics correctly that will create a different email I mean I'm sorry spamics will create a single email address for the entire domain and each time I'm asked to for my email address it will simply give the the expedia.com domain email address that is created correct? Well I'm not certain that that is correct. I think that's what that leads you not to be certain. Well because what you have to do is you are you are basically parsing the domain from the web page that made the request and if it was expedia or if it was cnn.com or it was the course it is the course web page and in equivalent function the email use product does essentially the same thing actually does the same. Well never mind it may be this what is the question is what is the patent require and the simply requires that the association is being made automatically. But the patent will if I understand it the patent will create a different email address for each of those pages correct? It actually does not necessarily have to do that for each of those addresses. What it does is the patented product the 41 product will will identify and parse in the same way the the web page that is making that request whether it's on cnn.com this is explaining the instructions. Well no keep in mind my hypothetical I have multiple net web pages within a single domain. So I want you to be careful here to make sure that you describe the patented system correctly. Now your assertion is that the patented system doesn't necessarily create different email addresses for each web page it can create a single email address for the domain and repeat that with respect to each web page. We're talking about the spamics product now. But the patent. The patented process as I understand it yes it can do that with regard to the but the source and the source for both products and the association at the association stage both products are taking the web page to parse that information. Yeah I know that's where they start and then questions where do they end up that is do they end up creating a single domain related new email address or do they create and does it create an email address that's specific to each web page my understanding of the invention was that it did the latter and you're telling me now no it does the form well no you're honored that the the invention creates an alias email address that will will attach to each of the specific web pages that are made to each of those addresses different at each of those addresses can be different but it also can it can attach to the to the broader web domain because that is that is where that is what hosts each of the individual web page but how does it become dedicated then to use and then it becomes dedicated for you to do that by the entity because it has attached it has the the entity that's making the initial request is the entity that is associated with the web page that first made that request so if it's made multiple times your honor in relation to what you're asking and this by the way demonstrate both the automatic nature of it and the dedicated for use nature of it once the programs are lost and both programs do this but let's talk about the infringing aspects of the span x product once well let's talk a little bit about the way that the patent system dedicates the alias email address with each web page that has to be associated with each web page that correct that's correct each one of the web pages has a dedicated email address right then there's and there is right there's an algorithm that that associates the according to mr. McIntosh it's the same one for each web page and it would be the same one for each web page was it a separate one is it a separate email address for each web page that makes the request is that no no is it a different alias web page being unique to each one of the web pages all right it is that's what you argued before the patent offers the argument to overcome the Kennedy right a page a lot of the patent i know it's in a stature or brief yes there was a dedicated for use by an entity associated with each web page yes entitled the entity that sent email messages to the user and addressing each targeted web page so it's a separate email address for each web page so and that web page is dedicated to that alias right and the actually the web page is dedicated to the entity the the actual wording of the patent is that an association is made automatically that is dedicated for use by an entity that is associated with the web page all right and that the automatic application of it happens without additional user input or intervention once the program is launched and the analogy that was made in college net about the automatic association is just that once the program is launched and on either either competing product you click create address or create email you you have made the association with the with the web page that is making that request and a response to your otter's question about well can you dis spamics then have have an additional feature which permits that to be automatically to populate that field automatically with regard to all web pages in the same domain yes but that doesn't defeat the limitation at all because according to college net and and according to take access and others it can the word dedicated to an entity can mean one entity or more than one entity in the same in the same manner that a web signed hosts multiple web pages by definition it has to if I could return to the question that you and I were discussing a moment ago yes the basis for my supposition that the patented device attached a unique and different new email address to each web page is principally column 10 lines 28 through looks like about 37 all right which says that upon receiving the email forwarding address request so forth the system determines if an email forwarding address already exists in the users account that is associated with the web page address the URL right yes your order is included in the email forwarding address if the such an email forwarding address does not exist in the database the database server creates a new standard forwarding address that is automatically associated with the web page address URL and a science properties to the email forwarding address which suggests to me at least maybe I'm not reading this correctly yes to me that if the system does not find a an email address that's specific to that URL then it creates a new one why isn't that the correct reading of that passage I don't quarrel with your owners in that case if that's the way the patented system works then it does create it would seem a specific new email address for every web page i.e. every URL yes it yes it would for every URL I thought you were telling me before that the patented system doesn't necessarily create a new the association your honor and I apologize for my lack of of specificity with regard to this but perhaps even lack of of the proper terminology and usage when you are attaching the when you're automatically associating the the new email is the new alias email with a web page you have already made that association let's go back to my and i'm and i'm in here now because you know i want i want to make sure i understand let's be specific okay let's be specific to the example i had of expedient i'm go to expedient and i visit three different pages i want a hotel in Paris i want to flight to Berlin and i want a hotel in Berlin it so happens i don't think this is really the way expedient works but it so happens that each of them requests my email address they want your email address and they want to does does this system create three separate email addresses for me or does it create one for my three web pages visited in connection with the expo before anyone before anyone patent would determine whether you have already uh and it does us automatically whether you have already associated an alias email address with that particular URL or web page okay i have never visited expedient before so i have never associated an email address with each of those you are else so i go url one url two url three all within the domain of expedient does the system of the 481 create three email addresses for me or one i my understanding of the system is the the 481 system will look at the url and determine by having parsed from the web page the domain name whether you have actually assigned that email address to any of the subsequent requesting entities that are asking for your your and in terms of whether it does so automatically i'm having a hard time translating your answer into the question the the answer i was looking for which is either three or one i believe that according to the patented process in columns ten and eleven that you're talking about it would create three separate email addresses i don't like all right certainly i'm sorry okay so it makes one all right and again for matters of technical i think that this is a matter of of technical concern that illustrates why perhaps summary judgment on on this aspect of the i'm i'm advised that that the email address which attaches to the entities dedicated for use by the entity would apply to the entity to the domain that that is associated with the entity and while the 41 patent allows more specificity that that the actual process would attach the email address to any entity that is associated with the web page that was within that domain okay thank you mr. chamberlin we will restore your two minutes of rebuttal time all right thank you we'll hear from the closing council mr. block can we just start right from the beginning mr. block and see if you get the same answer to my expedient question that mr. chamberlin did i had a whole long presentation but i would be more than happy no no i'm sorry you can get into your presentation but your question gets the heart of the matter and an actual fact if we look at the 41 patent and not look at emailias there the plaintiff's product but look at the patent itself and the defined terms then the answer is yes their their product creates three separate emails three sample uh forwarding email addresses okay now itself that okay i i thought that would probably be your short answer now for the slightly longer version right what is it that mr. chamberlin said immediately before he sat down that you disagree with with respect to the way he got to the conclusion that the 481 patent is capable of creating only one email address as opposed to three in my expedient case claim one yeah pounded on this column 16 and ultra the page number is that during any internet session where a user is viewing a web page that's important that includes a prompt for an email address a method of creating a foreign email for an address to said user now web page was defined in the marketing determination as a single web page which may be part of a larger body known as a website so based on the claims the 41 patent will create a a forwarding email address for each web page that you go to at a domain that asks for an email address now that that their product is able to never meant exactly that spam x does not do that spam x focuses on the domain so that at for instance you go to expedient now i believe you could at expedient go rent get a flight and a hotel room and a car i could be wrong on this but assuming for a second each domain each website is for each location is asking for another for an email address under in spam x it will be the same email you can use the same email you don't have to you don't even have to use an associated email well we'll get to spam x in a second but it's one domain it's one disposable email for all the whole domain or you can choose to do that for for the 41 patent it's a different email address which is put into a folder so that you could have actually i'm not strike that it's a different email address for every web page as part of that website which is unique to each one of those pages exactly and because of that it's spam x is not the 41 patent it's not infringing on the patent on a roll could use on the spam x couldn't you have one one web page one email for every web page no and the reason is because spam x doesn't work that way spam x spam x will associate the domain so if you use a domain it will it doesn't go to the web page you can choose to use multiple web disposable email addresses for the same domain or you could use is that correct yes but but there is no automatic association use different email addresses for the same domain using spam x but it's not about page it's about domain in other words the patent is focused on pages the the spam x is focused on the domain it's a it's a different analysis a different function it's a different way of doing things it's not a one page website the two systems operate identically in that central situation the two systems don't operate the same at all but for one page one set so one page website at that point there would be one email address for one disposable or foring email address at issue but but the systems don't work the same if I what is the difference then at that point the difference is how this how the email the how spam x creates the disposable email address how how it the steps they're taken for that this this association aspect and whether or not it's automatic is also completely different and we we we submit that it is not automatic in any way with regard to spam x what why is it automatic all you need to do is to click two different steps before you select the email actually no that's that's not quite right or for spam x first off it's a separate email it's a separate website it's a separate the application merely opens up that website the user must launch the application for spam x the user must choose to create an email address they must either accept defaults or complete a questionnaire the user must submit i accept the creation of the email and then only then is the disposable email address associated with a with the provided information it's not necessarily the domain or even or or anything else it's just the provided information you don't have to use spam x is not about creating this disposable email for for web pages it's for creating the disposable email for anyone who asks for email address whether you're joining a bar association they're asking for email address whether friends want an email address or or associates or whether a website want a domain request the information it's not the focus is not on domain it's on the creation of this web of this disposable email address it's a different it's a different focus for the system there's there's nothing really automatic here because you have to put in the fields or accept the fields it's a different it's entirely different technology well those are actually excuse me let me ask you one question i could please the inclaim one the automatically associate with said web page language yes um focusing in particularly on automatically associated are those words directed to claim one setting up this arrangement or does the automatically associate refer to the kind of situation that exists after the forwarding email addresses in place and somebody goes back to the website again i'm sorry can you can you reset the yeah let me let me ask you let me ask it try and get at it automatically associate assume for the moment that someone has well what does automatically associate refer to does it refer to the process does it exist in the process of creating and forwarding an email forwarding address okay or does automatically associate it refer to the email address being automatically associated after one has established the forwarding address under the pattern it's the former all the steps go together it's the creation the the email is created with regard to the the the forwarding email is created with regard to that web page in looking at it i mean i was really says a unique email forwarding address for the user that is or will be automatically associate with said web page exactly it'll automatically in other words after you set up this forwarding address it goes to the target email address if you go back to the website you have a forwarding address that is now automatically associated with that website right right but spam makes doesn't do it no i'm not i'm not yes yes but you are correct in terms of what the right i said website is just a web page that's right um if i could address does that answer your question yes and the the runners have any quick if i could address something that was raised by my my learned opposition he has said the college net is only that that their challenge and the reply papers with regard to the determination is about the application that's a with regards to associated or actually associated in terms of associate that's a shoehorn this is the at no point in the marketing hearing at no point in their initial brief do they ever challenge the definition of associated found within associated on sorry automatic with the definition of automatically associated with that this is especially troublesome because the marketing papers are not in the brief are not in the the the record on appeal there is spam it's nowhere it's nowhere until the reply this this is litigation this is appeal by ambush if we had if this was addressed previously we could have uh uh dealt with um emailing our college net and how it's immaterial to the kind of but by putting it in their reply papers and not including the marketing papers so there can be an analysis of what actually was argued below and the determination by the court it's completely inappropriate um i just just as an emphasis or to demonstrate why this was not even an issue until the reply the as i said college net was never cited either below or in the initial brief the argument presented in the reply is therefore raised for the first time in the action the the the the marketing determination uh the order is not in the the condemned to the initial brief and in fact the record of appeal contains none of the marketing submissions it's just this annuishing now if we are this is a record on a p-mini appendix material i'm sorry uh actually no go the the record on a appeal here the appendix right the appendix and the the record on the appeal it is everything right on the district court you're not suggesting right no no no i apologize in the agenda uh the appendix there is no marketing submissions it's just not there but there was no challenge to the determination and the uh way that the district court interpreted the claim terms in the initial brief that's correct this uh application or this attempt to reply college net to to the term is something that is really i believe an attempt to to challenge the marketing term are you referring to the i guess is a statement page seven of the reply brief um where it says the district courts construction and application of the term automatically is also contrary to controlling the precedent yes this court it's so you're saying there they've said previously there's no claim construction challenge now they are challenging exactly and this is not the first time they did this one do in their initial brief the um they raised for the first time uh claiming that spamics intentionally copied the 41 patent that that's just that that that is for the first time in the appeal as i put it in my in the opposition it's just completely inappropriate uh if we're forced to deal with college net which uh we might be um i would like to point out to the court that it's immaterial college net dealt with the term automatic uh defining but merely upholding the definition of the term as once initiated the function is performed by a machine without need for manually performing the function the term at issue is not automatic it's automatically associated with now there is no real question that spamics does nothing automatically particularly associate spamics does not launch without the user interaction spamics doesn't create a disposable email without user interaction and spamics doesn't associate or doesn't even put in a definition until the user authorizes therefore the automatic under collegiate doesn't change the the findings of the lower court um now there is another issue here that that has not been addressed and that is the dedicated for use spamics um the spamics as disposable emails are not dedicated for use as the term is construed now dedicated for use has been construed as being solely and exclusively exclusively for use the spamics disposable email emails can be dedicated for multiple site domains that the the user can can dedicate this for any site at once it does any any website at once any domain at once it's not one particular website the other is that there is nothing that spamics does that stops the website from disclosing and disseminating email there is no apric there's no part of spamics which which requires that that disposable email be used only by the website the website itself is also free too is so to disseminate that and other people can let me see what is it in the looking at the claim again back to claim one word says said email forwarding address being dedicated for use by an anti-associate was said wept where there is there the limitation that only uh that you in other words if you go on if I go on I create a forwarding email address okay where is it in the pattern that says that forwarding email address can't be used by or can't be associated with more than one web page well it says for being dedicated for use by an anti-associate with the web page now dedicated if I if I set I'm sorry interrupting with the time is running sure if I set up say an email address for a travelosity website and then a uh google website um or web page um and it's the same email address isn't still that email address dedicated for use by each of them well but the the if you go we have to go back to the mark from hearing the markman's determination the claim construction termination dedicated for use has been defined as solely and exclusively for use yeah so because it's solely and exclusively only one web only one domain uh that that that didn't get any further I mean solely exclusive it would have been maybe the judge didn't go further than that didn't say solely and exclusively for use by just one well it when you when you say solely and exclusively it has to be solely exclusively for someone uh in other words either solely and exclusively for use right could be for some other purpose I'm sorry well the her definition was solely and exclusively for use correct right right that says okay this is only for use could there not be some other purpose well email is and i i think we could look at it want to it if we're talking about use as in the use by the user by by by the client of spamming and they're only they're they're limited to the to the use of the uh disposable email for solely exclusively for that web page that website actually not web page because spamming is another deal with web page but that website then the answer is this doesn't apply because spamming in no way limits the use of that disposable email for anything now if we're looking at it as what about this the the party that you've the web page the domain the domain there's no limitation that the web page that the domain use that disposable email only for themselves to contact the the user that there is no limitation on their ability to disseminate so if you look at it from any standpoint there is no solely and exclusively or uh um dedication by spam it's just doesn't exist it's not applicable um let me let me let's see if let me see if I again to come back to my homely example of expedient lovely website if um uh does this language uh being dedicated for use by an entity associated with said web page not cover the case assume let's assume the entity in question is expedia okay not the particular web page uh but expedia and expedia is associated with all the web pages in the domain therefore why doesn't this language being dedicated for use by expedia which is associated with the particular web page what what why doesn't that cover that sort of case that language because if I understand your question because there is nothing in spamics which limits expedia to use it just for that purpose so expedia can self disseminate the disclose your email address which is what spamming is created by there there is no limitation on the use of expedia yeah is there any other questions I think I've had a question well i just a follow up with Judge Bryson asked what happens in the situation where you do have let's say expedia is that considered a web page by itself or is it considered a domain determination well expedia or google or yada have it is a domain that has multiple web pages as part of the web within that domain within that domain spam x focuses on the general domain the 41 patent focuses on the web pages if I could just so if I understand you correctly if and other non web related functions is spamics and I apologize they cut off you what you're saying if judge Bryson's question and with regard to expedia under the patent before any one patent you have the domain of expedia you would have three or four different websites of web pages within that domain that's right under the 41 patent each one of the websites would have a different and unique email address exactly that would be automatically generated when a request is made exactly and and however under spam x you could have one email address for all of the domain for every single one of those web pages be the same one and if I could just add under spam x you have to choose to apply the email there's no automatic the the the the disposable email there's no automatic aspect to it so this is one of these situations where there really is very little that that is the same or similar between the patent and the alleged infringement but we've we've gone well over the time I appreciate your honor is one thanks including caught you can share it with us but otherwise let's move on to a battle okay I just want to say that there is no that as the lower court probably dismiss the current patent infringement action because click through spam x under the claim construction of the 41 does not automatically associate any disposable email with anything it does not dedicate or limit use of disposable email by any sender receiver and it does not associate any disposable email address with a web page rather the domain thank you for your honors and doldens and have a roll you mr. Chamberlain you have two minutes two minutes to sum up the points that your honor made and judge shawl made you know I just want to question yes right this one I understood the claim construction was not an issue in this case it says it's not a reply brief it says the district courts claim construction an application of the term automatically is contrary to control are you perhaps challenging claim perhaps we're not perhaps it should have more art or or pointedly read as applied consistent so to make it very clear you don't you have no we're not challenging any of the district courts we were not controlling with the claim construction because actually as the mark when findings were made and we argued them on cross motions it was an interpretive issue in the context of applicable law and this is why your honors both hit upon the actual limitations of the patent these are the two limitations at issue that spam x automatically associates the email address and here's the application and this is what college net is relevant to without additional user input or interaction at the time of the association in other words the fields are being in college net the fields were being automatically input when you when you hit the button that said you know insert all of the information on the on the college applications same is true with regard to the spam x product and the 480 one patent the association is automatically made whether it's made through you or or domain and your honor hit on exactly what the limitation is and why this is an infringing product it dedicates the alias email address for use plan entity not by a web page by an entity that's associated with the web page so what the 480 one patent does is it the limitation is that you associate the alias email address with the entity that is associated with the web page to determine the entity the process that both products go through is that all all web pages at the same domain are presumed to be associated with the same entity and under the 480 one patent the URL determines the entity the patent uses the URL and then in practice all web pages at the same domain are generally part of the same entity in response to your honor question was it three or one let's assume that that the 480 one patent contemplates then three separate alias email addresses for each of those separate web pages if in fact they are separate within expedio or within travel us or whatever the fact that as jishol pointed out that spam x might use or recycle the same email address dedicated to that entity that's associated with each web page still infringes they are they can use one or more than one because it is dedicated to the entity it's the entity not the web page that that is the subject of the limitation of the patent it's the entity the focus is on the entity and we've explained that your honor in pages 8 through 12 the reply I don't think that that's hitting after the bell at all that's simply explaining in response to arguments that are made at pages 13 through 15 of the responding brief what it is we're talking about specifically thank you mr. jambal in the case