CBM2015-00004, Paper No. 32
`January 7, 2016
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`trials@uspto.gov
`571-272-7822
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`MOTOROLA MOBILITY LLC,
`Petitioner,
`v.
`INTELLECTUAL VENTURES I LLC,
`Patent Owner.
`- - - - - -
`
`Case No. CBM2015-00004
`Patent Number 6,658,464 B2
`Technology Center 2100
`
`Oral Hearing Held On: Thursday, December 3, 2015
`
`BEFORE: JAMESON LEE; PHILLIP J. KAUFFMAN; and
`JO-ANNE M. KOKOSKI; Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Thursday,
`December 3, 2015, at 1:00 p.m., in Hearing Room B, taken at the U.S.
`Patent and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`January 7, 2016
`
`trials@uspto.gov
`571-272-7822
`
`
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`MOTOROLA MOBILITY LLC,
`Petitioner,
`v.
`INTELLECTUAL VENTURES I LLC,
`Patent Owner.
`- - - - - -
`
`Case No. CBM2015-00004
`Patent Number 6,658,464 B2
`Technology Center 2100
`
`Oral Hearing Held On: Thursday, December 3, 2015
`
`BEFORE: JAMESON LEE; PHILLIP J. KAUFFMAN; and
`JO-ANNE M. KOKOSKI; Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Thursday,
`December 3, 2015, at 1:00 p.m., in Hearing Room B, taken at the U.S.
`Patent and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ON BEHALF OF THE PATENT OWNER:
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`JOHN R. KING, ESQ.
`DAVID G. JANKOWSKI, ESQ.
`Knobbe, Martens, Olson & Bear, LLP
`2040 Main Street
`14th Floor
`Irvine, California 92614
`949-760-0404
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`TIM R. SEELEY, ESQ.
`Intellectual Ventures Representative
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`JOHN C. ALEMANNI, ESQ.
`MICHAEL MORLOCK, ESQ.
`Kilpatrick Townsend & Stockton LLP
`1001 West Fourth Street
`Winston-Salem, North Carolina 27101
`336-607-7300
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`JIM SHERWOOD, ESQ.
`Google Representative
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`
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`Case No. CBM2015-00004
`Patent Number 6,658,464
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`P R O C E E D I N G S
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`(1:00 p.m.)
`JUDGE KAUFFMAN: This is CBM 2014-00004.
`Before we get started, I would like to ask, Petitioner, have
`you provided a business card to the Court Reporter?
`MR. ALEMANNI: I have, Your Honor.
`JUDGE KAUFFMAN: Thank you. And Patent
`
`Owner?
`
`MR. KING: I have, Your Honor.
`JUDGE KAUFFMAN: Thank you. Petitioner,
`would you come up and introduce yourself and anyone else
`who will be speaking today, please.
`MR. ALEMANNI: Thank you, Your Honor. My
`name is John Alemanni. I'm with Kilpatrick Townsend &
`Stockton. I am here on behalf of Petitioner, Motorolla
`Mobility, and real party in interest Google.
`With me at the table is Mr. Michael Morlock.
`Also with me is Mr. Jim Sherwood of Google.
`JUDGE KAUFFMAN: Thank you. And Patent
`
`Owner?
`
`MR. KING: Good afternoon, Your Honors. My
`name is John King. I'm lead counsel for Patent Owner,
`Intellectual Ventures. With me at counsel table is backup
`counsel David Jankowski.
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`Case No. CBM2015-00004
`Patent Number 6,658,464
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`I would also like to introduce the representative of
`the Patent Owner in attendance, Tim Seeley.
`JUDGE KAUFFMAN: Thank you. Court
`Reporter, were you able to hear that okay?
`THE REPORTER: Yes, sir.
`JUDGE KAUFFMAN: Okay. I would like to
`remind everybody, please speak into the microphone and
`speak loud enough so that the Court Reporter can hear you.
`So we have 75 minutes for each side. Petitioner,
`how would you like to use your time? Will you reserve any
`time?
`
`MR. ALEMANNI: Yes, Your Honor. I believe we
`had 60 minutes a side from the trial order?
`JUDGE KAUFFMAN: It is 60. It's my hearing
`tomorrow that's 75. I'm sorry.
`MR. ALEMANNI: That's okay. I intend to use
`probably 30 to 35 minutes on my opening. I would like to
`reserve the remainder for rebuttal.
`JUDGE KAUFFMAN: All right. I will warn you
`when you get to about 30 minutes.
`MR. ALEMANNI: Okay.
`JUDGE KAUFFMAN: All right. It is important,
`the transcript is important in writing the final for me, and so
`it is important that as you are referring to a slide you say “I'm
`on slide 6” or “I'm on slide 7.”
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`Case No. CBM2015-00004
`Patent Number 6,658,464
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`If you don't do that, then I don't want to interrupt
`you, but I will say “he was just talking about slide 7.” So if
`you could do that I would appreciate that, please.
`This is not the type of proceeding where one side
`can object to the other side while they are speaking. We are
`not going to interrupt each other.
`And that is it, and we are ready for Petitioner to
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`proceed.
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`MR. ALEMANNI: Thank you, Your Honors.
`Again, my name is John Alemanni. I have on the screen
`Exhibit 1013, Petitioner's Exhibit 1013, which are our
`demonstratives for this oral hearing. I will start with slide 2.
`I want to start with a summary of the claims at
`issue. There is only four claims at issue here, one
`independent claim, three dependent claims. I have claim 1 on
`the screen.
`It claims a software product, the software product
`for executing computer-executable instructions, and there are
`four steps: Enabling a user to select content from a plurality
`of independent publishers, transferring the content to a user at
`a user station, effecting storage of that transported content,
`and then effecting presentation of the stored content to the
`user, where the user interface is customized to the respective
`publishers. So there are four steps in that independent claim.
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`Case No. CBM2015-00004
`Patent Number 6,658,464
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`Can we go to slide 3, please? There are three
`additional claims at issue here, claims 8, 16 and 17. 8 adds
`that the transport of the content is done without user
`intervention. 16 adds a nonproprietary data transfer protocol
`is used for transport, and 17 adds that the communications
`network is the Internet.
`So we will show today that all these claims are
`invalid, that they don't recite eligible subject matter under
`Section 101 35 USC. The way we show that, the way we've
`shown it in the petition, the way I'll describe it today, is first
`in relation to the Mayo/Alice test. So let's go to slide 4,
`please.
`
`So the Alice test, as we all know, is a two- part
`test. The first test is to determine whether the claims at issue
`are directed to a patent- ineligible abstract concept. In this
`case they certainly are. It is clear from the claims
`themselves.
`The second step is to determine if the claim
`contains an inventive concept that is sufficient to transform,
`to transform the claimed abstract idea to a patent-eligible
`application. And that's not the case here. There is an abstract
`idea. Nothing in the claim transforms that abstract idea to
`something that would be patent eligible.
`Next slide, please. For the record this is slide 5.
`So what is an abstract idea? Well, it is not entirely clear from
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`Case No. CBM2015-00004
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`the precedent, but the court has provided us with some
`examples and some guideposts for determining what an
`abstract idea is.
`For example, in the Alice case the Supreme Court
`tells us that a fundamental economic practice long prevalent
`in our system of commerce is an abstract idea. That's what we
`have here and I will demonstrate that through a couple
`examples.
`I also want to point out in the Bancorp case the
`required computer -- this is pre-Alice -- but requiring a
`computer by itself does not impact the determination of
`whether the claim recites an abstract idea.
`And that's what we have here. We have an
`abstract idea. It claims well- known computer elements that
`do nothing than what they normally would do. It is an
`abstract idea with nothing more and it is ineligible subject
`matter.
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`JUDGE KAUFFMAN: And what is that abstract
`
`idea?
`
`MR. ALEMANNI: We have defined the abstract
`idea as selecting the content, transporting the content, storing
`the content and then effecting presentation of that content.
`That's the abstract idea.
`JUDGE KAUFFMAN: Now, when you state that
`idea, it is not as transporting or storing electronic
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`Case No. CBM2015-00004
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`information, but in the claim it is electronic information. Are
`you twisting what the claim says?
`MR. ALEMANNI: No, we're not twisting what the
`claim says. So in forming what the abstract idea is, I think we
`could have come up with, for the 52-word description, we
`could have said content distribution, or we could have used
`three words and said electronic content distribution.
`We didn't do that. We took the claim and the
`elements of the claim and we give effect to each of those
`elements in the claim. We pulled out the concept that each
`element is putting forth. The only thing that we did is
`removed the generic computer references that are within the
`claim.
`
`So where the claim says user station, or where the
`claim says user interface, we've taken the generic, the
`well-known computer aspects out of the claim, distilled it
`down to what it is at its very basic form, and that is simply
`selecting, storing -- selecting, transporting, storing and
`display.
`
`JUDGE KAUFFMAN: In your response, you don't
`say much about the order of the steps. You, rather than argue
`it again, what I understand you to be saying is that it doesn't
`matter?
`
`MR. ALEMANNI: So I think that's true to a
`degree. I think we really have three arguments on that. The
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`first is that, and actually let's pull up -- can we pull up the
`claim, slide 6? It may be easier if it is up on the screen.
`So this is the claim: Select content effect
`transport of the selected content effect storage and effect
`presentation.
`Our first argument is that it doesn't require an
`order as to selection and transport. Now, clearly it requires
`that you transport the content before you can store it. We're
`not arguing it doesn't. We're not arguing that you can display
`it before it is transported. That's not our argument.
`Our argument is really just, and is only limited to,
`you don't have to select the content before it is transported.
`So that's our initial argument. That's in the petition. We
`haven't walked away from it. That is our argument.
`Secondarily, and to your question, it doesn't
`matter because the idea that selecting the content before you
`transport it or transporting and then selecting it, we have
`evidence on the record from Dr. Clark, and there is actually
`evidence in the patent, that selecting things before you
`transfer them were well known.
`And Dr. Clark testified that it would have been
`obvious to change the process that we've shown in our
`documents, one of the prior art references, the prior art
`reference that we rely on, would have been obvious to change
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`Case No. CBM2015-00004
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`that process so that it discloses -- that it renders obvious this
`claim.
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`And I think our third argument would be that it
`doesn't matter, that the fact of someone asking for something
`and then receiving it, that if that is what the Patent Owner
`claims is innovative here, that I asked for something and then
`I receive it, as opposed to receiving a collection of things and
`then selecting which one I want, that that is not significantly
`more.
`
`It is not what the Supreme Court indicated in Alice
`was enough to transform the abstract idea into something that
`was patent eligible. That's not enough.
`JUDGE KAUFFMAN: My sense from what you
`said is that you are saying and that there is evidence in the
`file that it is possible to transport before you select. But I
`think the question here is a little bit different.
`So as I'm reading the second clause, the one that
`begins "effect transport," it says: "Effect transport of the
`selected content," and selected being the past tense of select;
`right?
`
`MR. ALEMANNI: Yes.
`JUDGE KAUFFMAN: So you know that at this
`point the selection has already been done. So how can I read
`that so that those steps don't have to be performed in order?
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`Case No. CBM2015-00004
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`MR. ALEMANNI: So I don't think that that claim
`has to be read as narrowly as you are reading it because of the
`tense of the verbs. I think that's more a drafter's way of
`keeping the claim from being indefinite, to try to say that,
`when I say selected content, I'm referring back to the element
`before.
`
`If the claim wanted to clearly recite that it had to
`be done in order, what the claim would say is effect transport
`after selecting the content. I think it is ambiguous as to
`whether the content must be selected first.
`So I think from that perspective that particular
`step doesn't have to go in order. The cases that were cited,
`the Altris, the Mformation, and the, I think it is the E case,
`E-Pass case, all of those claims are different.
`So in the Mformation case, I believe that's the one
`that you had to have a connection established before you
`could transmit information. Then you transmitted
`information.
`Clearly the logic of the claim itself requires in
`that case that the steps be conducted in order. In this case,
`yes, I agree with you, there is a grammatical argument that
`they must occur in order, but I think it is a fairly weak
`argument.
`I think if the Patent Owner wanted to be clear
`about what specifically they wanted to have happen when they
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`drafted this, they could have said that you don't transport the
`content until it is selected.
`Again, I don't think it matters in this case. I
`think, even if that is required, that it is obvious and it doesn't
`add significantly more. But I don't believe that is a
`requirement.
`JUDGE KAUFFMAN: And how does that logic
`play out with effecting presentation of the stored content;
`doesn't it have to be stored before it can be presented?
`MR. ALEMANNI: I think you have to effect
`presentation of the content that is transported. I don't think in
`that case that the stored content necessarily means to be
`stored before it is presented.
`It certainly has to be transported. I mean, that's
`logical. It doesn't make sense that you would display it
`before you transport it. It certainly has to be selected before
`you display it because the claim wouldn't make sense if you
`didn't select what you wanted to have presented to you.
`So I think in those senses, yes, those are required.
`I think if you had an embodiment that is stored at the same
`time that it was being displayed, or if you had a process that
`delayed it, then that's possibly within the scope of the claim.
`But I don't think that's a dispute that matters for
`what we're -- I don't think that matters for the disputes
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`Case No. CBM2015-00004
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`between the parties. I think the dispute is really limited to
`whether selection need occur before transportation.
`JUDGE LEE: Why do you diminish a grammatical
`basis for what the claim means? Why do they have to draft it
`in the way you would draft it? You seem to want to limit
`their drafting technique to what you would prefer. You would
`say first I would do this and then I would do that, but
`everyone writes claims differently.
`Why would you -- it sounds like you want to
`diminish their choice of using the grammatical tense to
`indicate what comes before and what comes after.
`MR. ALEMANNI: And the grammatical test is
`certainly part of trying to discern what a claim is. I'm not
`trying to diminish the grammatical test. I think certainly
`there is an argument to be made that by transporting selected
`content that there is a grammatical reason for finding that
`those are in order.
`I don't think there is a logical reason for
`determining that they are in order and I don't think the claim
`is clear and unambiguous about that order. I think they could
`have made it clear and unambiguous.
`So I agree with you that there is an argument --
`JUDGE LEE: Well, that's not the test. Which one
`-- are you saying -- it seems to me that's what it says. You
`select it and then there is something selected, and it is
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`Case No. CBM2015-00004
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`consistent with what comes later, effect transport and then
`store the transported content. It seems to be consistent
`throughout the claim.
`You do something and then the past tense of that is
`used in the definition of the next step.
`MR. ALEMANNI: Yes, I agree 100 percent, Judge
`Lee, but what I'm saying is at the beginning if we step back
`the claims are not in order unless they are recited in that
`order.
`
`And so the grammatical test that you are
`describing is certainly one of the tests to determine whether
`or not it needs to be conducted in order. And that test would
`support the idea of seeing these in order.
`What I'm saying is, is that it is not required by the
`logic because you can certainly transport after you select or
`display after you select. So it is not supported clearly in the
`language that there are ways to more clearly state it.
`JUDGE LEE: Well, nothing would support your
`construction of the claim clearly either. So the strongest
`thing appearing on the face of the claim is the grammatical
`tense, and the consistent usage of the grammatical tense to
`indicate order.
`So what is on your side to refute that?
`MR. ALEMANNI: On my side is the fact that the
`logic doesn't require it. So in construing the claim, if you
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`start with the basis that they don't have to occur in order, then
`the only thing that supports the argument that they are in
`order is grammatical. It's not required --
`JUDGE LEE: What do you mean logic doesn't
`require it? You know, it says to transport selected content.
`Logic indicates that you have to select it before you transport
`it. Logic indicates you have to transport it before you store
`what has been transported. It seems to me that logic is all
`contrary to what you are saying.
`MR. ALEMANNI: I agree with you that it can't be
`stored until it is transported, that's true. So the dispute is
`about the selection.
`I would say that the way you just stated is a
`grammatical error restated. I'm saying from a logical, from a
`computer standpoint, what would actually occur, that it is not
`required that it is selected before it is transported, that a
`computer program could be written.
`So there is no logic. It's not like effected
`communication after a connection is established. By logic
`that's not possible to communicate before the connection is
`established.
`JUDGE LEE: Oh, what you are saying is it could
`be done the other way?
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`MR. ALEMANNI: Yes, that it is susceptible to
`more than one argument, and it's not required that they be
`either one.
`JUDGE LEE: Technically it could be done the
`other way --
`MR. ALEMANNI: Yes.
`JUDGE LEE: -- is what you are saying?
`MR. ALEMANNI: Yes.
`JUDGE KAUFFMAN: One of the things you asked
`us to do is you said, well, instead of saying effects the
`transport of the selected content, that it would have been
`clearer to say, first, effect transport after selecting the
`content.
`
`But, I mean, it also could have been written to say
`effect transport of the content. Right? But instead they stuck
`in the word “ selected,” and I am required to give meaning to
`every word in the claim.
`So what does the word “selected” mean then?
`MR. ALEMANNI: I mean --
`JUDGE KAUFFMAN: Because "the" sets the
`antecedent basis, right --
`MR. ALEMANNI: Yes.
`JUDGE KAUFFMAN: -- back to selected content,
`so what does “selected” mean?
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`MR. ALEMANNI: I think “ selected” means that
`that content is being transported some time. So I believe the
`claim would be broad enough to cover the case where you had,
`for instance, two updates that were transported to a user
`station, to a user's computer or kiosk at a vending machine.
`And then if the user selected one of those, you had
`transport of the selected content. You are not doing the claim
`in order the way it is recited, but you certainly transport the
`selected content. You have also transported other content.
`But it doesn't say don't transport anything else.
`So I think there is an argument in logic that you
`are not required to select the content before you transport it.
`Again, I believe also that it isn't dispositive in this
`case because of the fact that Ogaki renders it obvious, and
`the idea of selecting content before you receive it, it was well
`known in the art. It is in the background of the patent.
`JUDGE KAUFFMAN: So your reading of claim 1
`is that the only step that would be required to be done in order
`would be that the transporting has to occur before the
`presentation?
`MR. ALEMANNI: No, I mean, if you are asking
`me everything that has to occur in order, I agree that you can't
`store before you transport, and I agree you can't display
`before you transport. That wouldn't make sense. It has got to
`be on the user machine before you can do it.
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`Case No. CBM2015-00004
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`I would also agree that the user has to select it
`before it is displayed, if I'm making sense. So, again, there
`are a couple places where I don't think you need an order, but
`the one that is in dispute is whether you select before you
`transport.
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`JUDGE KAUFFMAN: Thank you.
`MR. ALEMANNI: Sure. Thank you.
`JUDGE LEE: I would like to ask you, tell me on
`what basis did you come up with your statement of the
`abstract idea? Because we can always generalize on any
`claim. We can always go to a level in which everything
`becomes an abstract idea.
`Even if the claimed invention is a method of
`operating a transistor where all of the elements of the
`transistor is claimed, I can say, well, that's an abstract idea
`because that's just going in one direction sometimes and going
`in the other direction other times.
`So you haven't explained at all what your basis for
`saying those four highlighted lines is what you regard as the
`abstract idea. Don't you have to consider what the problems
`described in the spec is, what is in the background, what is in
`the summary?
`MR. ALEMANNI: Yes.
`JUDGE LEE: I hope you can give an accounting
`that tells me that you have considered all of that stuff in the
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`Case No. CBM2015-00004
`Patent Number 6,658,464
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`background and the summary when you came up with this
`level of general statement of an abstract idea.
`MR. ALEMANNI: And we did. I mean, the
`background talks about the distribution of electronic content.
`It says that the problem was simple, effective, less complex,
`distribution of electronic software products or electronic
`content. And so --
`JUDGE LEE: Well, that's not in your highlighted
`part. I mean, you've got it broader than that.
`MR. ALEMANNI: The problem is distributing the
`content. And so the patent, the concept that they are getting
`at is that you select content that you want, that you transport
`the content, that you store it and that you present it. That's
`the idea. That is what has been well known in commerce.
`And so we draw -- so what we're trying to do in
`identifying the abstract idea is we're trying to find a basic
`economic principle, basic, something basic that has been
`happening for essentially forever, at least for a very long
`time.
`
`So we identified an idea here that is abstract.
`People have been selecting things that they want, having them
`transported, having them stored and displaying them, I mean,
`I don't know forever, books have been around since 300 B.C.,
`right, so, I mean, for at least a very long time.
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`Case No. CBM2015-00004
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`The analogy that we drew to in the petition is the
`idea of a book. The background of the patent talks about
`retail mail order. So we said, okay, we will use that as our
`context. So if I go into a retail mail catalogue and I see books
`from a variety of publishers, I select the book I want, the
`book is transported -- and this is actually slides 7 through 12,
`we can walk through it or I can just talk about it -- but I
`select the book I want from one of the independent publishers.
`Then they put it in their box, I mean, if it is post,
`what, '71 they FedEx it to me, or before that they used the
`U.S. Postal Service, I guess before that Wells Fargo.
`The book gets sent to me. It is put on a shelf. It
`is stored. And then when I want to go look at it, I get the
`book, I open it up, it effects presentation, in a format that is
`customized to the independent publisher. That is an abstract
`idea.
`
`And I think the advantage, the reason we did it in
`that way is because the advantage of that -- can you go to 12
`or 13, one or two together -- the advantage to our abstract
`idea is we are giving effect to every claim limitation.
`It is not picky. It doesn't take it out to something
`like intermediated settlement like Alice. But it gives effect to
`every element and it is still abstract.
`JUDGE LEE: But you haven't told us anything
`about your consideration of the problem described in the spec
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`about the prior art. I mean, what is the problem they are
`trying to solve?
`MR. ALEMANNI: So let's go to slide 13, I
`believe it is. Here is the problem that they talk about solving.
`CD Federal Register on CD-ROM at weekly intervals. They
`said this is the background, the prior art.
`So I get my Federal Register electronically in the
`prior art. I get it on CD-ROM. It is installed on my
`computer. And they refer to this in the Patent Owner response
`at page 9, so this is the example they use.
`So what happens? When I want an update, the
`updates are provided by shipping a disk. So the problem in
`the background is I select the content, it is being transported
`to me via mail, and then it is stored on my machine, and then I
`see the CD-ROM, and how do I view the CD- ROM? I do it in
`the interface that the CD Federal Register publisher provides.
`So it is their user interface. That's what I'm
`seeing. So that's the background. Actually, you know, well,
`we can stop there, but, I mean, this is the context. This is the
`abstract idea. This is what they are saying the problem is,
`that you select content, then you transport it, but you
`transport it by snail mail.
`And then, as we have analogized, you store it
`locally, you store it on your computer, and then you view it.
`And you view it in the interface customized, and the patent is
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`very specific, in that you customize the user interface to be
`the user interface of the actual publisher. So the user
`interface that's in claim 1, that's in that last element of claim
`1, it could be the CD Federal Register's user interface. If you
`look at claims 4 and 5 it makes it clear that it can be their
`user interface.
`JUDGE KAUFFMAN: I feel like there is not much
`in the file that tells me what “ customized” means as used in
`claim 1.
`
`MR. ALEMANNI: Right.
`JUDGE KAUFFMAN: An ordinary meaning from
`the Oxford English Dictionary is -- and I will put this in as
`Exhibit 3001 -- is that it's “ to make to order or to measure, to
`model or to alter according to individual requirements.”
`And I know you've got a little bit of evidence from
`a declaration as far as what “ customization” would involve.
`But I would like to hear more from you and later from Patent
`Owner about what “customized” means. It is important to me
`to really understand the scope of this claim.
`MR. ALEMANNI: Sure. Michael, can you bring
`me up the patent itself? I think it makes more sense -- or you
`can bring up actually Patent Owner's slides. Well, bring up
`the patent. That's easier. Let's look at figure 1.
`Excuse me just for a moment while we bring this
`up. I think it makes more sense, figure 1.
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`Case No. CBM2015-00004
`Patent Number 6,658,464
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`So this is figure 1 of the patent at issue, of the
`'464 patent. And if you look at 28 at the top, that's the user
`interface of the application. So that's the CD Federal Register
`application. It is Microsoft Word. It is Excel. It is whatever
`it is. It is Google Chrome. It's the actual user interface.
`And then if you look at 34, and I will note that
`this isn't actually claimed in the claim, the claim is broader
`than this, but this is one of the implementations, one of the
`embodiments described.
`If you look at 34, that's the user interface for the
`API that's described. It is described at a very general level
`but it says here is the API.
`Now, can we go to column 16? Let me direct your
`attention to column 16 at the bottom. I will blow it up. Go
`down to where it says claim 34. Okay. So let's look at this
`paragraph, and I'm on column 16, lines 55 through 63 or 4 for
`the benefit of the court reporter.
`User interface 28, all right, the user interface at
`the top of figure 1, which is the user interface for the native
`application, the application that is already in existence, the
`one that the publisher wrote, not the invention, but the one the
`publisher wrote, user interface 28 in conjunction with user
`interface 34, which is what Patent Owner claims is the
`invention, the alleged invention.
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`Case No. CBM2015-00004
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`So user interface 28 in conjunction with user
`interface 34 contains code providing a menu selection,
`enabling a user to activate the update fetch operation and then
`provide for seamless, integrated or seamless access.
`So what the patent describes that customized user
`interface is, you take the user interface from the publisher,
`and you add a menu option, and that's customized.
`So that is a broad, broad term. It certainly covers
`the native application with perhaps some small changes. And
`I'm not sure that it is even narrow enough that you have to
`change it. It says the customized user interface, but when you
`read the patent, when you read it in light of the specification,
`customized means that it is customized to a particular
`publisher.
`So in this case user interface 28 is presumably
`customized to whoever wrote the user interface. Microsoft
`Word is certainly customized to Microsoft, Microsoft Excel,
`they run the office look and feel.
`So that term is broad enough to just cover the
`application. If we look at claims 4 and 5 they say specifically
`that the user interface is the user interface of the independent
`publisher. So those claims make clear that the scope of claim
`1 must be broad enough to cover the particular embodiment
`they are describing.
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`And I would say they wouldn't be any narrower
`because they don't have any -- there is nothing in
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