Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 1 of 104 PageID #: 4016
`1
`
`IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
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`PELOTON INTERACTIVE, INC.,
`)
`Plaintiff and
`Counter-Defendant, )
`) C.A. No. 20-662(RGA)
`
`))
`
`)
`
`) J
`
`. Caleb Boggs Courthouse
`844 North King Street
`Wilmington, Delaware
`Friday, June 25, 2021
`9:05 a.m.
`Markman Hearing
`
`BEFORE: THE HONORABLE RICHARD G. ANDREWS, U.S.D.C.J.
`
`APPEARANCES:
`
`
`
`MORRIS NICHOLS ARSHT & TUNNELL, LLP
`BY: MICHAEL J. FLYNN, ESQUIRE
`-and-
`
`LATHAM & WATKINS LLP
`BY: LAWRENCE J. GOTTS, ESQUIRE
`BY: MARC N. ZUBICK, ESQUIRE
`BY: SUSAN Y. TULL, ESQUIRE
`BY: DAVID F. KOWALSKI, ESQUIRE
`BY: JOSEPH C. AKALSKI, ESQUIRE
`
`For the Plaintiff and
`Counter-Defendant
`
`
`
`))
`
`))
`
`v.
`ICON HEALTH & FITNESS, INC.,
`Defendant and
`Counterclaimant.
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
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`PELOTON INTERACTIVE, INC.,
`)
`Plaintiff and
`Counter-Defendant, )
`) C.A. No. 20-662(RGA)
`
`))
`
`)
`
`) J
`
`. Caleb Boggs Courthouse
`844 North King Street
`Wilmington, Delaware
`Friday, June 25, 2021
`9:05 a.m.
`Markman Hearing
`
`BEFORE: THE HONORABLE RICHARD G. ANDREWS, U.S.D.C.J.
`
`APPEARANCES:
`
`
`
`MORRIS NICHOLS ARSHT & TUNNELL, LLP
`BY: MICHAEL J. FLYNN, ESQUIRE
`-and-
`
`LATHAM & WATKINS LLP
`BY: LAWRENCE J. GOTTS, ESQUIRE
`BY: MARC N. ZUBICK, ESQUIRE
`BY: SUSAN Y. TULL, ESQUIRE
`BY: DAVID F. KOWALSKI, ESQUIRE
`BY: JOSEPH C. AKALSKI, ESQUIRE
`
`For the Plaintiff and
`Counter-Defendant
`
`
`
`))
`
`))
`
`v.
`ICON HEALTH & FITNESS, INC.,
`Defendant and
`Counterclaimant.
`
`
`
`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 2 of 104 PageID #: 4017
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`
`APPEARANCES CONTINUED:
`RICHARDS LAYTON & FINGER LLP
`BY: CHRISTINE D. HAYNES, ESQUIRE
`-and-
`MASCHOFF BRENNAN
`BY: STERLING A. BRENNAN, ESQUIRE
`BY: C.J. VEVERKA, ESQUIRE
`BY: RAY NELSON, ESQUIRE
`BY: DAVID R. WRIGHT, ESQUIRE
`BY: TAYLOR J. WRIGHT, ESQUIRE
`For the Defendant and
`Counterclaimant
`ICON Health & Fitness, Inc.
`*** PROCEEDINGS ***
`DEPUTY CLERK: All rise.
`THE COURT: All right. Please be seated. So
`this is the Markman in Peloton vs. ICON, Number 20-662. And
`this is ICON's patents and its counterclaims.
`And so ICON, Ms. Haynes, good morning.
`MS. HAYNES: Good morning, Your Honor.
`Christine Haynes from Richards Layton & Finger on behalf of
`ICON. With me today, I have my co-counsel from Maschoff
`Brennan, Sterling Brennan, Ray Nelson, C.J. Veverka, David
`Wright, Taylor Wright, and also with us is my client from
`ICON, Everett Smith, the general counsel.
`THE COURT: All right. Thank you, Ms. Haynes.
`Mr. Flynn.
`MR. FLYNN: Good morning, Your Honor. Michael
`Flynn of Morris Nichols on behalf of Peloton Interactive.
`
`
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 3 of 104 PageID #: 4018
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`I'm joined today by my colleagues from Latham & Watkins,
`Larry Gotts.
`
`MR. GOTTS: Good morning, Your Honor.
`MR. FLYNN: David Kowalski.
`MR. KOWALSKI: Good morning, Your Honor.
`MR. FLYNN: Joe Akalski.
`MR. AKALSKI: Good morning, Your Honor.
`MR. FLYNN: Marc Zubick.
`MR. ZUBICK: Good morning, Your Honor.
`MR. FLYNN: And Susan Tull.
`MS. TULL: Good morning, Your Honor.
`THE COURT: So I know Mr. Gotts and Jethro Tull,
`but that's it. So I did see your letter in response to my
`order, and basically my interpretation of the letter is that
`some things you've agreed to or agreed to while reserving
`rights, and so I don't really expect to discuss them today.
`But everything that you want to discuss, I'm perfectly
`willing to listen to. And unless you have some other idea,
`we might as well just go through them in the order in which
`they're listed.
`Is that what the parties are expecting?
`MR. GOTTS: Yes, Your Honor.
`MR. VEVERKA: Yes, Your Honor. Thank you.
`THE COURT: So mark-up language. Peloton wanted
`to seek clarification about something.
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 4 of 104 PageID #: 4019
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`So what is that?
`MR. GOTTS: That is, Your Honor, the reference
`to tags in the proposed constructions.
`THE COURT: Yes.
`MR. GOTTS: And what I'd like to do, Your Honor,
`with the Court's indulgence, is talk a little bit about the
`significance of that and then walk through the evidence
`because we believe it has significance, but indeed, does
`need to have more meat on the bones. And what a tag is,
`because if we simply use that term, it's going to leave it
`for construing of the construction by the experts and the
`jury. And we think there's a lot more to it in the context
`of how it's understood in the context of the mark-up
`language.
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`THE COURT: So, okay. I will say that when I
`read this briefing on June 18th, so I have notes and, of
`course, I thought about it before I issued the Order, but
`there's a little pause here because I actually hadn't
`thought the tags part was controversial. But go ahead.
`MR. GOTTS: Yes, Your Honor. And I don't think
`it ought to be controversial, although I think the jury is
`not going to understand what a tag is in the context of a
`tag mark-up. Peloton, as you know, Your Honor, had a
`proposed construction.
`THE COURT: But I mean, I guess this is the
`
`
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 5 of 104 PageID #: 4020
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`start. Isn't tags, so to speak, a well-known term of art?
`MR. GOTTS: It is a well-known term of art for
`mark-up language, but it has a very definite format and
`understanding of what a tag is. Whereas in the -- just to
`understand the nature of the dispute, there's something
`called JSON, which is what Peloton practices, and it doesn't
`have tags, as we would describe it, right. But the
`expectation is that ICON will try to point to anything and
`call it a tag, whereas tags means something quite specific,
`as I'll explain in the context of a mark-up language.
`THE COURT: Okay.
`MR. GOTTS: So that is why it's important and
`because, otherwise, what we're going to do is have a
`situation where the experts or the jury, even worse, trying
`to sort of interpret the construction and construe the
`construction which is, I think, the thing we're trying to
`avoid have happen here.
`So Your Honor, the Court's proposed
`construction, a computer language that identifies data with
`tags, as Your Honor may recall, Peloton had a construction
`which tried to give examples and also put a little more
`definition around what a tag is, and how they're used, and
`how many of them there are, and so forth, and so on. We
`understand Your Honor's going in the direction of not using
`those exemplars, but I think there still needs to be more
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 6 of 104 PageID #: 4021
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`work done on that.
`So if I could, before I go, Your Honor, into the
`intrinsic and extrinsic record that we think very clearly
`tells us what a tag is, I just want to spend just a moment
`about how we got to where we are in the claim because I
`think it could be relevant.
`So if we could go to the next slide, Dave.
`The original filed claims all did not have this
`mark-up language in it at all. In fact, they had something
`called a particular transmittable data format that's in the
`far left corner of our slide right there. It was in
`response to various rejections and the like, including based
`on this Agranat reference, which I will speak about in a
`moment.
`
`The claims were amended to add in a particular
`mark-up language. So mark-up language is something -- not
`only is it important, but it's sort of broader than any sort
`of transmittable data format. And ultimately, the examiner
`allowed the claims and, in part, based on the changes to the
`claims made regarding mark-up language. I only say that
`because whatever we have here has to be something broader
`than a transmittable data format. Right.
`I'm sorry, narrower transmittable data format.
`
`Thank you.
`
`So if we can go to the next slide, Dave.
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 7 of 104 PageID #: 4022
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`The specification of the '016 patent actually
`says very little about any of this in one regard. It
`doesn't -- the only place it even uses the language mark-up
`language is in the title Extensible Mark-Up Language which
`is XML. It doesn't sort of talk about all mark-up languages
`or anything else, it talks about XML. And then it spells it
`out, extensible mark-up language. It doesn't use the word
`tags anywhere.
`But what it does do is it gives an example of an
`XML example at Column 6, I believe, of the patent, Lines 46
`through 51. And you'll see, this is an exemplar of XML code
`that has these tags we're talking about. And what the tags
`are, see where it says, for example, TimeStamp on the first
`line, that's telling you that the data in between these two
`tags is the time stamp. That would be a representation of
`the time stamp. And the tags themselves are always set off
`with these angle brackets and the explanation of either what
`the tag is, what the data is, or what to do with that data
`in some instances, some explanation of why we're putting
`that there. Right. And it's always surrounded by these two
`tags. This is the nature of XML, but we'll see it's
`actually the nature of mark-up languages in general.
`So tags are, indeed, when you ask -- you asked
`the question earlier, isn't that well known? They are well
`known, but they're well known to be this. It's not a comma,
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 8 of 104 PageID #: 4023
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`or an apostrophe, or a quote, or something else. This is
`what a tag is and they -- and tags surround the data. And
`that's XML, and that's mark-up language. That's just what
`mark-up languages are and what they look like.
`So the patent tells us -- it doesn't describe
`it. This is really all we get in the patent, this and that
`one instance where it talks about XML and use of mark-up
`language. This is what we get. But interestingly enough,
`it's also quite consistent with both the extrinsic and
`intrinsic evidence as to what a mark-up language is.
`THE COURT: Actually, let me just interrupt you
`for a second --
`MR. GOTTS: Yeah.
`THE COURT: -- because it occurs to me I don't
`know where you're going. What is it that you would want me
`to do, change --
`MR. GOTTS: Okay.
`THE COURT: -- clarify, so that I kind of have
`in mind what the end goal is here?
`MR. GOTTS: Let's go to the punch line. If we
`could go to the last slide. I think it's the last slide.
`And I'm going to -- I'd like to not lose the opportunity to
`explain to you why we get there.
`THE COURT: Yeah, okay. So you're saying tags
`of the very particular nature that you were just
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`demonstrating?
`MR. GOTTS: Right. And you'll see why that is
`as I go through all the evidence.
`THE COURT: Okay. All right. That's all I
`really wanted to know is what it was we were trying to get
`to.
`
`MR. GOTTS: So what we would do is attach right
`after your construction, Your Honor, you know, a little more
`meat on the bones, tags are around the text, and they
`consist of angle bracket delimiters and tag names. So it's
`basically just telling us what a tag is.
`So should we go back?
`THE COURT: Yes, yes.
`MR. GOTTS: Okay. Thanks.
`So let's now talk -- there really is a wealth
`of -- there's good intrinsic evidence, in addition to what I
`already pointed out in the specification, right. Basically
`the exemplar of XML. But there's also other intrinsic
`evidence, and there's a wealth of extrinsic evidence. And
`I'll just say there's actually no evidence that supports
`something as broad as mark-up language as just as tags or
`identifies data with tags. That would be insufficient and
`not supported.
`So the first item of intrinsic evidence is what
`I already alluded to earlier. There was a prior art
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 10 of 104 PageID #: 4025
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`rejection over this Agranat patent, prior art that cited in
`the prosecution history is the -- is intrinsic evidence.
`And here, in fact, this is the only intrinsic evidence that
`tells you what a mark-up language is.
`And in Agranat, they actually gave an express
`definition of a mark-up language. And it goes as markup
`languages are computer languages which describe how to
`display, print, et cetera. And as I mentioned earlier,
`what's inside those delimiters could be any number of
`instructions as to what the data is and that's what it's
`saying here.
`A text document and a device-independent way,
`and that's what XML is, it allows you to sort of talk to
`any -- you know, anywhere, use this mark-up language and
`know how to create these documents or to format this
`information. And it says a description takes the form of
`textual tags indicating a format to be applied or other
`action to be taken relative to the document text.
`Then it goes on to say, tags are enclosed in
`angle brackets. And I've highlighted that, and then it
`shows the angle brackets, and they indicate how the document
`is structured and so forth. So you'll see Agranat is
`entirely consistent with what the '016 patent shows as tags
`in the context of a mark-up language. And that's intrinsic
`evidence, and it's the only intrinsic evidence that one
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`looking at the intrinsic record would have, the patent would
`have.
`
`If we could go to the next.
`Now, Your Honor, this isn't the first time
`courts have had to look at, you know, or discuss, or at
`least consider what mark-up languages are. In fact, in the
`i4i case, the Federal Circuit has -- and I'm not at all
`suggesting this is binding precedent or anything else for
`the Court, but I think it's instructive -- the Federal
`Circuit has said that -- explained that mark-up languages
`tell a computer how texts should be processed, just as I
`said, by inserting tags around the text just like in the
`patent there, tags on either side, and they give a computer
`information and so forth. And then it goes on to say, each
`tag consists of a delimiter. The delimiter is the angle
`brackets and a tag name which is, for example, the time
`stamp there. And as we said, that surrounds the data or the
`information.
`And then it goes on to give an example using, I
`believe, what is the address of the Federal Circuit address,
`717 Madison Place address where -- so address is the tag
`name and the angle brackets there are the delimiters. Well,
`once again, entirely consistent, you know, almost -- you
`know, very much affirming way to Agranat, very much
`consistent to the intrinsic record of the patent itself.
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 12 of 104 PageID #: 4027
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`So if we can go on to the next, there we also
`have in the record here, Techterms, which is a website which
`talks about tags and the like. And it also explains the
`tags are the basic formatting tool in HTML and other mark-up
`languages, such as XML. And it explains, once again, the
`data should be inside the tag, and the table, and it's
`closed with another tag. And as you'll see, it's an
`exemplar again. Here it, once again, lines up identically
`with the '016 patent.
`Getting to the point here that when we're
`talking mark-up language, those in the computer science
`field know that when we talk about tags, we're talking about
`something which is quite specific and directed to mark-up
`languages and not to any old thing that you want to sort of
`call out and call a tag. That may be something, but it's
`not a mark-up language tag.
`Next slide, please. We also have the
`declaration of Mr. Kevin Almeroth, our expert.
`THE COURT: I really don't care about
`declarations.
`MR. GOTTS: Okay. Fair enough. But I would
`like to skip next to the evidence of their inventor expert
`for a different reason, if I could, Your Honor. We can skip
`that.
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`THE COURT: All right. I don't care about
`
`
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`inventors either, but --
`MR. GOTTS: I know.
`THE COURT: -- but go ahead.
`MR. GOTTS: I know. That was the first point I
`was going to make. I know the Court doesn't care about
`inventors or even very much about expert declarations, but
`in the case of Mr. Paolini, I think it is relevant that
`their own expert and their -- who's their expert and
`inventor disagreed with their construction. I think it's
`one thing to say, I've got a self-serving declaration of the
`experts, and they all wash out and everything else. But
`when they disagree and he says he thinks that their
`construction, which was essentially the Court's
`construction, is omitting things and, therefore, inaccurate.
`Now, he may have a whole host of other reasons.
`We tried to get that. He said it would have to embody the
`whole 15 paragraphs of my declaration, and it's a messy
`concept. You know, the point is whatever he thinks it is,
`he thinks their construction is wrong which, by the way, is
`essentially the Court's construction. I think that's
`relevant.
`
`THE COURT: And where did he get his law degree
`
`from?
`
`MR. GOTTS: He doesn't have a law degree, but he
`certainly has a technical degree so he's someone presumably
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`skilled in the art. So he understands. I think, this is --
`I think we'd all agree this is an issue that is sort of a
`blend of law and technology. And I think for what it's
`worth, that's the only evidence they had, and he disagrees
`with them.
`
`Okay. So that's sort of where it leaves us. We
`have a wealth of intrinsic and extrinsic evidence telling us
`exactly what a tag is. The best they've got is their own
`guy who disagrees with their construction which is the
`construction the Court adopted.
`THE COURT: Okay.
`MR. GOTTS: And that's the lay of the land. I
`think that's -- so that, again, we've crafted a construction
`which there's no doubt it's correct. The only question is
`how much the Court really feels ought to be said here in
`light of the intrinsic and extrinsic evidence. This clearly
`is technically and factually correct. I don't think that's
`disputable based on the spec and the wealth of evidence we
`have here. We've aligned it up with the i4i which you could
`line up.
`
`THE COURT: What is the priority date of these
`
`patents?
`
`MR. GOTTS: April 2000, Your Honor.
`THE COURT: 2000?
`MR. GOTTS: Yes.
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`THE COURT: Well, these are oldies, but goodies.
`Okay. Well, all right.
`I missed all of this discussion and, you know, I
`remember Agranat in the briefing, and I guess I actually
`remember the inventor business, too. Does somebody actually
`have the Microsoft technical dictionary from, you know, 1999
`saying, Here's the definition of a tag?
`MR. GOTTS: I don't believe we have that, Your
`
`Honor.
`
`THE COURT: I was just wondering --
`MR. GOTTS: Yeah.
`THE COURT: -- because you know -- well, in any
`event, why don't I hear from the other side.
`MR. GOTTS: Okay. Thank you, Your Honor.
`MR. BRENNAN: Thank you, Your Honor. Sterling
`
`Brennan.
`
`THE COURT: Yeah. I'm starting to get your
`name, but thank you.
`MR. BRENNAN: That's fine. Thank you, Your
`
`Honor.
`
`Well, interestingly, if one were to look at the
`construction that was at least initially proposed by
`Peloton, it did not include the added language. Now, from
`my reading of what the Court has proposed is it has taken
`from Peloton's proposed construction and from ICON's and
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`essentially done a greatest hits compilation from the
`essential terms of each.
`THE COURT: Well, it is true, as you say, that
`the original Peloton construction talked about corresponding
`textual tags. So it's certainly moving beyond that.
`So but, in any event, go ahead. Sorry.
`MR. BRENNAN: So thank you. So in addition,
`counsel presented to you, and we can put similar slides up
`citing from the i4i vs. Microsoft case where the Federal
`Circuit undertook to describe what a mark-up language is,
`and that language did not undertake to define tags as is now
`being proposed to the Court. This --
`THE COURT: Well, so that's all true or, I
`assume. And of course, while I don't care about inventors,
`and I don't really care about experts, I do care about the
`Federal Circuit. But even the Federal Circuit concedes that
`just because they said something about a construction in one
`case -- or, I guess i4i might even be the Supreme Court.
`No, it's Federal Circuit -- you know, it's not binding in
`another case.
`MR. BRENNAN: Yes.
`THE COURT: So but the same question I was
`hinting at with Mr. Gotts, I mean, is there -- you know, my
`impression is, honestly, that tags is a term that one would
`expect experts to actually agree with what is or is not a
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 17 of 104 PageID #: 4032
`17
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`tag, at least I would have expected. And just because the
`jury doesn't know what a tag is until people, experts start
`saying something is or is not, you know, that's not a reason
`for me to start trying to define tag, too.
`On the other hand, it does seem like I
`understand kind of probably what the dispute is, which I
`will say is Peloton wants a very specific understanding of
`tag. What I don't know is whether tag has a broader
`understanding to people of ordinary skill in the art because
`I do think whatever the understanding -- you know, and I
`didn't understand Mr. Gotts to be saying something different
`that, you know, somebody's disclaimed or lexicographied tags
`for this case. I think tags here just means whatever tags
`means.
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`MR. BRENNAN: Well, we would agree, but so there
`could be transparency. I think we got a sense of this from
`Peloton's counsel, where they want to go with this, and the
`reason they're urging this much more limited narrow --
`THE COURT: Well, I get the JSON, whatever that
`is, probably doesn't have this kind of tag.
`MR. BRENNAN: Exactly.
`THE COURT: The question is, I guess, whether it
`has some other tag.
`MR. BRENNAN: That's the issue, Your Honor.
`THE COURT: So what other kind of tag are we
`
`
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 18 of 104 PageID #: 4033
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`talking about?
`MR. BRENNAN: There could be other symbols that
`could be used.
`THE COURT: In other words, instead of angle
`
`brackets --
`
`MR. BRENNAN: Angle brackets.
`THE COURT: -- they could use asterisks.
`MR. BRENNAN: Quotation marks. There could be
`other delimiters, and that's why the, I think, well
`understood and accepted definition suggests -- again, I
`understand it's not binding, but I think the Federal Circuit
`did suggest that each tag consists of a delimiter and tag
`name.
`
`THE COURT: Ah. And so that's, you would say,
`even if I don't care about the Federal Circuit -- you didn't
`say that -- that even if the Federal Circuit is not binding
`on me, you're saying it helps you, not them?
`MR. BRENNAN: It does. It does.
`THE COURT: Because they give a broader
`definition, and I take it that JSON, which I kind of recall
`from the preliminary injunction or something --
`MR. BRENNAN: Yes.
`THE COURT: -- that JSON has a delimiter and a
`tag name, at least in your view, just a different delimiter
`and a different tag name.
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 19 of 104 PageID #: 4034
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`MR. BRENNAN: I think ultimately the dispute is
`going to focus on: Is JSON a mark-up language? Is JSON an
`extensible mark-up language? And does it use tags? We
`contend it does. But does it use a different nomenclature
`or method to delimit and does it signify tags using
`something other than angle brackets?
`THE COURT: So is your understanding of a tag,
`does it consist of a delimiter and a tag name?
`MR. BRENNAN: It does.
`THE COURT: Okay.
`MR. BRENNAN: And Your Honor, not only that, I
`think that's well understood. Back to the Court's original
`observation, should experts or persons of ordinary skill in
`the art understand that a mark-up language uses tags? Yes.
`What's the purpose of them, to serve as a delimiter? Yes.
`And does there have to be some sort of nomenclature or
`symbol to identify what that delimiter is? Yes.
`THE COURT: And so hold on a second,
`Mr. Brennan.
`Mr. Gotts, is it your understanding that down
`the road that that's going to be at least one of the points
`of dispute is your expert's going to say whatever their
`expert is saying is a delimiter is not a delimiter or maybe
`what their expert is saying is a tag name is not a tag name,
`though it seems to me you're focusing more on the delimiter.
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 20 of 104 PageID #: 4035
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`I mean, is that what you were trying to avoid here is
`getting me to rule in your favor of what a delimiter is
`right now?
`
`MR. GOTTS: What I actually am trying to avoid
`is sort of putting some claim construction issues in the
`hands of the jury, but let me answer the question because I
`don't want you to think I'm dodging it. We certainly
`believe that absolutely critical is that there be delimiters
`around textual tags which gives these instructions on either
`side. It's always the case with both, just as we see here
`now. What I do think we could leave for the experts to
`decide later on is do delimiters need to be angle brackets
`because I think, as you'll recall, we had corresponding
`textual tags in our -- that corresponding was intended to
`explain the notion that there's two of them. There's one on
`either side.
`That's always the case in these markup
`languages, the tags are around the text. They surround on
`either side, and they give you delimiters, and they give you
`a tag name which provides these various instructions.
`I think -- we think they also always have angle
`brackets. I think if one wanted to punt or kick the can
`down the road and let the experts opine on something, and I
`think that's one of the objections here, that's one of the
`objections, but I think at the very least you need to have
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 21 of 104 PageID #: 4036
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`surrounding tag names, surrounding tags that have tag names,
`and delimiters.
`THE COURT: Surrounding delimiters.
`MR. GOTTS: But that bracket, the information,
`correct. And then what I don't want to be on record as
`saying is we don't require angle brackets because I believe
`you do. But I think if we were trying to say how far do we
`go, to me, the issue, Your Honor, how far do we go in claim
`construction and how far do we go when we let the experts
`tell us what they really think here down the road, somewhere
`you've got to draw the line. I think stopping at tags alone
`doesn't do it. I think that just doesn't do it. So we
`could live with that.
`THE COURT: All right. Just as a matter of
`curiosity, Mr. Brennan, do you agree? Because I notice here
`it says each tag consists of a delimiter and tag name. Are
`you suggesting that a delimiter is something that only
`appears on one side of the tag name or could be?
`MR. BRENNAN: It could be, Your Honor. That's
`the crux of the issue is, again, there's an attempt to cabin
`the description so tightly as to avoid or to delimit, in
`their case, a whole range of computer languages that will be
`well understood to be mark-up languages that meet the
`Court's construction. And so the clear effort being made
`here is to ask the Court, invite the Court to give such a
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 22 of 104 PageID #: 4037
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`narrow construction as to guide into a way that would limit
`a whole range of mark-up languages.
`THE COURT: Sorry.
`MR. BRENNAN: So --
`THE COURT: And I'm sorry, Mr. Brennan. You may
`have already said this, but I think you have already said
`this, but your view is what's a tag or what is or is not a
`tag, that's basically the factual question for an expert
`because the tag is a well-known term of art, and it's used
`in its ordinary sense in these patents?
`MR. BRENNAN: Yes, and I think there will be a
`dispute among the experts. It's going to be a factual
`dispute. Their expert has given a very narrow one. We
`didn't attempt to bring one. We're sensitive to the Court's
`feeling about this. There's all sorts of deposition
`testimony we could have come with today, but that's for
`another time and another place.
`But this is really an attempt, as I said, to so
`narrowly construe tags as to eliminate the ability for
`experts and others to present the factual issue as to what a
`tag is as understood in the art.
`THE COURT: All right. So I think in the
`interest of time, we should move on. What I would like is
`for the parties to, you know, some time next week go and
`find technical dictionaries that predate the priority date
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 23 of 104 PageID #: 4038
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`of this patent and, you know, tell me what they say about
`what a tag is. You know, my inclination is that it's a
`broader, certainly broader term than what you started with,
`Mr. Gotts. And my inclination is that it is a well-known
`term of art. And I suspect it's, as I've said, broader than
`what you're saying. And I expect there is a need for
`probably a delimiter and a tag name for every tag, but the
`argument is over what's a delimiter, maybe what's a tag
`name, but at least what's a delimiter. And that's not claim
`construction, that's something else.
`MR. GOTTS: If I could just make one point of
`clarification, Your Honor. Tags, of course, is not even the
`term they've construed. It's mark-up language. So it
`strikes me that the right -- the inquiry perhaps is what
`you're asking for is technical documents which describe what
`a tag is in the context of a mark-up language. Right?
`THE COURT: Well, certainly that's the context
`we're talking about, and I don't know whether tag has usages
`in other contexts or not. So I leave it to you to go look
`for stuff, but it would be helpful to me if you went and,
`you know, surveyed whatever you can find and just sent me,
`you know, by like, say, but you can agree on something
`different, Friday of next week, you know, a letter with some
`attachments saying, you know, here's what it meant to a
`person of ordinary skill in the art in the context of
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`Case 1:20-cv-00662-RGA Document 126 Filed 06/28/21 Page 24 of 104 PageID #: 4039
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`mark-up languages and, you know, see these sources.
`But one thing I don't want is any deposition
`testimony or any experts, you know, just you know, the page
`showing the dictionary or existed before the priority date
`and whatever the definition is that's in it. I'm sure
`there's -- well, I think it would be helpful.
`MR. GOTTS: Okay. So Your Honor, we can send
`our own letters. I think that makes more sense; right?
`THE COURT: Yes, yes, yes.
`MR. GOTTS: Okay. Thank you very much, Your
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`Honor.
`
`THE COURT: All right. So I believe the next
`thing is the means for receiving and the means for
`displaying in the first of the two patents. And I guess
`while they're related, they are separate.
`So in any event, I guess probably ICON should go
`first on this.
`MR. BRE
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