IN THE UNITED STATES DISTRICT COURT FOR THE
`EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`REMBRANDT SOCIAL MEDIA, LP,
`
`1
`
`))
`
`))
`
`)
`) CIVIL ACTION
`)
`) 1:13-cv-158
`)
`
`Plaintiff,
`
`v.
`FACEBOOK, INCORPORATED, et al.,
`Defendant.
`
`BEFORE:
`
`APPEARANCES:
`
`REPORTER'S TRANSCRIPT
`MOTIONS HEARING (Via Teleconference)
`Thursday, June 6, 2013
`---
`THE HONORABLE T.S. ELLIS, III
`Presiding
`ROBERT HILLMAN, ESQ.
`AHMED DAVIS, ESQ.
`THOMAS MELSHEIMER, ESQ.
`Fish & Richardson PC
`1425 K St., NW, Suite 1100
`Washington, DC 20005
`For the Plaintiff
`JONATHAN G. GRAVES, ESQ.
`HEIDI KEEFE, ESQ.
`MARK WEINSTEIN, ESQ.
`Cooley, LLP
`Reston Town Center, 11951 Freedom Drive
`Reston, VA 20190-5656
`For Defendant Facebook
`---
`MICHAEL A. RODRIQUEZ, RPR/CM/RMR
`Official Court Reporter
`USDC, Eastern District of Virginia
`Alexandria Division
`
`MICHAEL A. RODRIQUEZ, RPR/CM/RMR
`
`001
`
`Facebook, Inc. - Ex. 1004
`
`
`EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`REMBRANDT SOCIAL MEDIA, LP,
`
`1
`
`))
`
`))
`
`)
`) CIVIL ACTION
`)
`) 1:13-cv-158
`)
`
`Plaintiff,
`
`v.
`FACEBOOK, INCORPORATED, et al.,
`Defendant.
`
`BEFORE:
`
`APPEARANCES:
`
`REPORTER'S TRANSCRIPT
`MOTIONS HEARING (Via Teleconference)
`Thursday, June 6, 2013
`---
`THE HONORABLE T.S. ELLIS, III
`Presiding
`ROBERT HILLMAN, ESQ.
`AHMED DAVIS, ESQ.
`THOMAS MELSHEIMER, ESQ.
`Fish & Richardson PC
`1425 K St., NW, Suite 1100
`Washington, DC 20005
`For the Plaintiff
`JONATHAN G. GRAVES, ESQ.
`HEIDI KEEFE, ESQ.
`MARK WEINSTEIN, ESQ.
`Cooley, LLP
`Reston Town Center, 11951 Freedom Drive
`Reston, VA 20190-5656
`For Defendant Facebook
`---
`MICHAEL A. RODRIQUEZ, RPR/CM/RMR
`Official Court Reporter
`USDC, Eastern District of Virginia
`Alexandria Division
`
`MICHAEL A. RODRIQUEZ, RPR/CM/RMR
`
`001
`
`Facebook, Inc. - Ex. 1004
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`
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`APPEARANCES (Cont'd):
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`2
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`STEPHEN P. MCBRIDE, ESQ.
`Cooley, LLP
`Reston Town Center, 11951 Freedom Drive
`Reston, VA 20190-5656
`For Defendant AddThis
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`MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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`Facebook, Inc. - Ex. 1004
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`RULING BY THE COURT
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`(Court recessed)
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`INDEX
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`---
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`Facebook, Inc. - Ex. 1004
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`PROCEEDINGS
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`(Court called to order at at 4:11 p.m.)
`THE COURT: Hello. This is Judge Ellis.
`The case is Rembrandt Social Media against Facebook and
`AddThis, 113-cv-158.
`Who is on, on behalf of the plaintiff?
`Who will be heard today?
`ATTORNEY HILLMAN: Bob Hillman and Tom
`Melsheimer and Ahmed Davis.
`THE COURT: All right. Mr. Hillman, when
`you speak, as you'll be the person speaking on behalf of
`Rembrandt, identify yourself, if you would, before you
`speak so that the reporter can properly attribute your
`remarks.
`
`ATTORNEY HILLMAN: I will do so, your Honor.
`THE COURT: All right. That was
`
`Mr. Hillman.
`
`Facebook?
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`All right. Now, who is here on behalf of
`
`ATTORNEY GRAVES: Your Honor, this is
`Jonathan Graves from Cooley. And Heidi Keefe and Mark
`Weinstein are on the line from Palo Alto. And I believe
`Ms. Keefe will be the primary talker for Facebook today.
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`THE COURT: All right. Good afternoon,
`Ms. Keefe. Again, when you speak, please identify
`yourself in advance.
`ATTORNEY KEEFE: This is Ms. Keefe. Thank
`you, your Honor.
`THE COURT: And for AddThis.
`ATTORNEY MCBRIDE: Good afternoon, your
`Honor. This is Steve McBride. Thank you.
`THE COURT: All right.
`MARKMAN RULINGS BY THE COURT
`THE COURT: Now, first I want to thank you
`for making yourselves available for this telephone call,
`the purpose of which is for me to disclose the Markman
`ruling. The briefs and arguments have been very
`helpful, so I thank you for those as well.
`I have heard many judges say, and it's
`correct, that -- it's generally true that although --
`although patent cases often involve a great deal of work
`and are difficult for many judges, judges nonetheless
`say that a saving grace in patent cases is the typical
`high quality of the lawyers involved, and this case is
`no exception to that. So I thank you.
`Now, the reason I am doing this by telephone
`is that I don't have the time to develop a timely
`opinion. I'll have to delay the opinion till I have
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`more time. The so-called rocket docket, which I didn't
`name, none us here named, but it is the way in which
`this division is known, imposes a discipline on lawyers
`and judges as well. In other words, if we expect the
`case to move along and the lawyers to move it along, we
`have got to make decisions, and we have to do it in a
`timely fashion.
`Now, in this case there are a number of
`agreed-upon terms, and the order that I will issue will
`set those terms out that are agreed upon, and the
`definition. And, of course, you should examine the
`order carefully to make sure that I have faithfully
`recorded your agreed-upon definitions. I am not going
`to -- well, maybe I will, in case I can catch an error,
`let me run through those very quickly.
`For the '316 patent, "browser," the
`definition is a computer program executed by a user
`system for accessing and viewing web pages.
`And I give you leave to stop me if I make a
`
`mistake.
`
`"Cohesive diary page," the definition is a
`diary page in which the content data and the page design
`are fully integrated for display.
`Next, "content data." The definition is
`information that may be displayed to a user that is
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`independent of the page design.
`Next, "cover for a diary." The definition
`is layout or style information that defines, at least in
`part, the visual appearance of a cohesive diary page
`independent of the particular content of the page.
`Next, "diary information." The definition
`is information, including at least content data, page
`design and configuration information sent from the diary
`server from the user system.
`Next, "diary page." The definition is a
`page containing content sent by a server to a user
`system.
`
`Next, "diary program." The definition is a
`computer program for execution by the browser in the
`user system that generates a cohesive diary page.
`Next, "page design." The definition is
`layout or style information that defines at least in
`part the visual appearance of a cohesive diary page
`independent of the particular content of the page.
`Next, "privacy level information." The
`definition is configuration information that describes
`or specifies which users or categories of users are
`permitted to view particular content data on a cohesive
`diary page.
`
`Next, "server." The definition is a
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`computer or other data processing system that provides
`or manages access to a defined resource or service in a
`network.
`
`Next, "user system."
`ATTORNEY KEEFE: Your Honor?
`THE COURT: Yes.
`ATTORNEY KEEFE: This is Heidi Keefe. I
`apologize for interrupting.
`With respect to "privacy level information,"
`I just wanted to make sure that I heard correctly, it
`was configuration information that describes or
`specifies which user, paren "s" end paren, or category
`of users are permitted to view particular content data
`on a cohesive diary page.
`THE COURT: Yes, you're correct, I simply
`didn't put the "s" in parentheses.
`ATTORNEY KEEFE: I appreciate it. But you
`intended for the definition to have the "s" in
`parentheses; is that correct?
`THE COURT: That's correct.
`ATTORNEY KEEFE: Thank you, your Honor.
`THE COURT: Not because I think it's right,
`but because I think the parties have agreed to it. I
`haven't adjudicated that issue.
`ATTORNEY KEEFE: Thank you, your Honor.
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`THE COURT: All right. But I am glad you
`interrupted, because I did leave the paren "s" out, but
`it will be in the order.
`Next, "server" -- I did "server."
`Next, "user system." The definition is a
`computer that executes a browser for use by an end user.
`Now, for the '362 patent, there are a number
`of agreements. First, "annotated universal address
`(AUA)." The definition is information consisting of the
`universal address and one or more annotations associated
`with it.
`
`Next, "annotation." The definition is
`information that governs the presentation of or
`describes a content object.
`Next, "applet." The definition is program
`code in any downloadable code format.
`Next, "AUA database." The definition is a
`collection of one or more AUAs.
`Next, "content object." Definition, an
`identifiable unit of content such as, for example, text,
`a bookmark, an image, a program, or a movie.
`Next, "content provider." The definition is
`a person or entity that provided the content object.
`Next, "content provider authored
`restriction." The definition is a requirement specified
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`by a content provider.
`Next, "dynamically generated page
`definition." The definition is creating a page
`definition at the client at the time it is needed.
`Next, "network data for dynamically
`presenting the object and the request interface." The
`definition, data transmitted over a network used to
`present the object and the request interface at the time
`of presentation.
`Next, "page definition." The definition is
`information that completely defines the appearance of a
`page.
`
`"Presentation context." The definition is
`layout or style information that defines at least in
`part the visual appearance of a page independent of the
`particular content of the page.
`Next, "request interface." The definition
`is a user interface permitting a user to make a request.
`Next is "script." The definition is
`instructions, with an "s" in parentheses, instruction
`with an "s" in parentheses, executed by a computer
`program.
`
`Next, "transfer applet." The definition is
`an applet that establishes a communications link between
`a client browser and server memory and transfers an AUA
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`from the client browser to an AUA database stored in the
`server memory.
`Next, "universal address." The definition,
`uniform resource locator, paren, URL.
`That completes the agreed-upon -- the
`agreed-upon definitions of a variety of terms.
`Have I omitted any term as to which the
`parties have agreed on a definition? Mr. Hillman.
`ATTORNEY HILLMAN: I don't believe so, your
`
`Honor.
`
`Honor.
`
`THE COURT: Ms. Keefe?
`ATTORNEY KEEFE: None that I can see, your
`
`THE COURT: All right.
`The remaining disputed terms are really
`three in number. For the '316 patent, it's
`"configuration information for controlling the behavior
`of a cohesive diary page."
`And the second term is -- or phrase or set
`of phrases, is "assembling the cohesive diary page by
`dynamically combining the content data and the page
`design in accordance with the configuration
`information."
`And for the '362 patent, it is the term
`"transfer script."
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`Those are the three remaining terms -- or
`three terms that remain in dispute. Do I have that
`correct, Mr. Hillman?
`ATTORNEY HILLMAN: Yes, your Honor.
`THE COURT: Ms. Keefe?
`MS. KEEFE: Yes, your Honor.
`THE COURT: All right. Now, what I am going
`to do next is to give you briefly, and it will be brief,
`what my conclusion is with some but perhaps not all of
`the reasoning. And I am certainly not going to go into
`case citations at this point, and I am not going to
`address all the arguments, but I will hit the high
`spots.
`
`First of all, I will note that in reaching
`these conclusions I have of course been mindful of the
`settled Federal Circuit authority that requires courts
`to follow a hierarchy of evidence in making claim term
`definitions, beginning with the claim language, then the
`specification and then the file wrapper or prosecution
`history, and there are times when extrinsic evidence
`might be needed, but in this case it isn't needed.
`So the first step in a claim, in the meaning
`of a claim term is to examine the claim terms or the
`claims themselves to see whether the claims themselves
`disclose the meaning of the disputed term.
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`Now, the two disputed terms under the '316
`patent all relate to the question whether the filtering,
`which isn't a term that appears in the patent, but the
`filtering occurs at the server level or the user level.
`And by "filtering" we mean use of configuration
`information, that is use of -- to determine who sees the
`page, in essence, whether that happens at the server
`level or the user level, and this is a major dispute in
`this case.
`
`Now, we look first at the patent claims.
`The patent claims make clear that the configuration
`information for controlling the behavior of a cohesive
`diary, all of that is sent from a diary server to a user
`system. So, in other words, it's sent there.
`Now, this leads the defendant to make the
`argument that -- or the defendants to make the argument
`that the claim language suggests that -- or I guess the
`argument is that the claim language makes it clear that
`the -- that the user system does the filtering because
`that's where the configuration information is sent.
`Certainly that's an inference that can be
`drawn from looking at the claim language. But, in my
`opinion, it is not a conclusive inference. It's not an
`exclusive inference. It's certainly is an inference.
`Now, the plaintiff points out, in opposition
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`to it, that there is another reason for sending the
`configuration information to the user system, and that
`is it allows the user to make changes in the
`configuration information, that is, changes in the
`privacy; who gets to see the page.
`It's important I think to point out that
`it's only the owner of the page or somebody authorized
`by the owner of the page to gets to see this -- or not
`gets to see it -- gets to make changes to this
`configuration information. But I don't think that
`lessens or eliminates the force of the argument. There
`is another reason for sending it to the user.
`My conclusion is that the claim language is
`not determinative of where the filtering takes place,
`and so I would love to find the answer there but it
`isn't -- it isn't. I think the -- sending the
`configuration information to the user system allows the
`diary owner to change the level, and that's reflected in
`the specification. There are references to that. In
`columns 3 and in columns 12 there are references to
`that.
`
`The defendants also argued that use of the
`phrase in the claims, "assembling the cohesive diary
`page by dynamically combining the content data and the
`page design in accordance with the configuration
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`information," suggests that the filtering is done at the
`user level.
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`But I don't think it does that conclusively.
`It doesn't preclude that the actual filtering is done,
`or can be done, at the server level.
`So in the end I conclude that the claim
`language itself is not dispositive of whether the patent
`is limited to filtering at the user level. So, in a
`circumstance where the claim language is not sufficient
`to resolve the patent claim dispute, the next step in
`the analysis is to go to the specification.
`And you all are well familiar with the
`Phillips case, and what the Phillips case says about the
`value of the specification.
`And it is valuable, although, I might add,
`it would be valuable if it were more clearly and
`carefully and written. But in any event, my views on
`claim interpretation and the reigning legal principles
`are not entirely in sync, but I am bound by what the
`Federal Circuit says, not by what I think would be a
`more sensible way to do it.
`I just spoke at Duke, at a group there, to a
`meeting, and I had very different views. But I have to
`make very clear that my views on how the matter should
`be done are irrelevant because I am governed by the
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`Federal Circuit, and I have to apply the law as it
`exists.
`
`But suffice it to say, is that much of the
`problem -- many of the problems that I have as a judge
`in making claim term constructions and determinations
`are attributable to the applicant's deliberate
`ambiguities or deliberate insertion of ambiguities in an
`effort to make the patent sweep as broadly as possible,
`and I find that, and I have indicated this on several
`occasions, ambiguities ought to be construed against the
`person who wrote it, contract law, black letter law.
`And when you are getting a monopoly from the government
`that probably ought to be a good rule.
`But that isn't the law. However sensible I
`may think my views are, they are not the law. And I am
`well familiar with that, and I have to be very careful
`that I don't allow any views that I might have interfere
`with my duty to apply the law as it is provided by the
`Federal Circuit.
`So we go to the specification. All right.
`Now, the specification, I think I am looking at column,
`let's see, I think I am looking at column 12. I got it
`Xeroxed -- by the way, my thanks to you both for sending
`me these large -- in fact, let me have this one -- these
`large patents. They are very helpful. In fact, they
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`are so helpful I have made a note that in all future
`cases I am going to ask that this be done.
`We don't have the ability to do this here at
`the courthouse, and I am told by my clerks who have
`worked at law firms that it's not that big a thing for a
`law firm to do, and that you all do have the ability to
`do these things.
`So I thank you for doing it, and I hope
`they're right in telling me that this didn't put you to
`a lot of work and expense because I could then go out,
`just buy a magnifying glass and use that. But this is
`much better.
`
`Now, let me see what page I am going to. I
`am going to -- or what column I am going to. It's
`column 18, as you all know because you focused a lot of
`attention and argument on it. Column 18, at about line
`44 begins with the sentence that says:
`While the invention has been
`described in conjunction with a specific
`embodiment, it is evident that many
`alternatives, modifications and variations
`will be apparent to those skilled in the art
`in light of the foregoing description.
`Well, we don't know what a person of
`ordinary skill in the art would be or who that would be
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`and what would be evident to them because we can't
`listen to testimony on that, at least not now. Maybe in
`a year or so we will.
`But, in any event, what that sentence says
`is that, look, the specific embodiment which involves a
`filtering at the user level, is not -- is not limited.
`The invention isn't limited to that. Many alternatives
`and modifications and variations will be apparent.
`Well, if I had testimony from a person of
`ordinary skill in the art, I suppose one of the first
`questions is whether one of those that would be apparent
`would be use of the configuration information to do the
`filtering at the server level.
`But, in any event, it goes on, and it goes
`on down to say:
`Moreover, some or all of the
`processing and selection of contact --
`content could be performed on the diary
`server --
`so, here they are talking about doing something at the
`diary server, namely the processing and selection of
`content. And by "processing and selection of content,"
`I take that to include use of configuration information
`at the server level to do the filtering.
`(Continuing) -- thus saving the
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`amount of data that must be transferred to
`the browser.
`So, in other words, you would not send as
`much information to the browser if you did your
`filtering at the server level. So the specification
`specifically acknowledges doing -- filtering at the
`server level is a variation or alternative to the
`preferred or the single embodiment provided.
`And then it goes on to say, "Similarly, all
`the HTML generation could be performed by the diary
`server."
`
`And then it's followed by the sentence,
`"This might lower the bandwidth requirement -- required
`and would simplify the transfer mechanism."
`In other words, if you did all the HTML
`generation at the diary server, you wouldn't have to
`send so much to the user.
`And it goes on to say, "This" -- now, when
`it says "this," there was some argument about what that
`referred to. I think it is clear that it refers to the
`HTML generation. If you do the HTML generation at the
`diary server, that would lower the bandwidth required,
`which it would, and would simplify the transfer
`mechanism.
`
`"However," it goes on to say, "when
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`envisioned in an application of the invention where
`millions of users use a diary, this," again, "places an
`unacceptable burden on the diary servers.
`The "this" in that sentence, I think,
`continues to refer to the HTML generation, and so that's
`what it says places an unacceptable burden on the diary
`servers.
`
`The use of the word "unacceptable" I
`fastened on. I think it's a careless use of the word.
`It certainly is a more substantial burden.
`Unacceptable, I am not sure. But, in any event, that's
`what they say.
`"In the described embodiment, the processing
`capabilities of user systems are used to avoid this
`problem."
`
`That's in the described embodiment. But
`then they go on to say, "Accordingly, it is intended to
`embrace all such alternatives."
`You know, one of the most difficult problems
`I have with -- not my current law clerks -- is not being
`clear about pronouns. Now, it says here, "Accordingly,
`it is intended to embrace all such alternatives." I
`think the "it" there, it clearly means the patent.
`Now, why didn't they say "the patent"? I
`can't tell you. But it says, "it is intended." I take
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`MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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`that to mean the patent "is intended to embrace all such
`alternatives, modifications and variation that fall
`within the spirit and scope of the appended claims and
`equivalence."
`So, in any event, I conclude from the
`specification, first of all, that filtering at the
`server is disclosed in the specification, and I conclude
`from the specification, moreover, that the disclosure of
`filtering at the server in the specification is
`explicitly embraced within the scope of the patent as an
`alternative.
`
`Now, this doesn't end the dispute because
`the argument that I found up at -- to this point of
`course I am with the plaintiff that the patent does
`not -- is not limited to filtering at the user.
`Neither the claim language nor the
`specification does that. Indeed, as I have indicated,
`the specification seems clearly to embrace, to include
`within the scope of the claimed invention the filtering
`at the server level.
`Now, there is a further argument, and it
`stopped me cold because I thought it was a very
`significant argument. And that is that in the course of
`distinguishing, as it had to, a prior art patent, the
`applicant for the '316 in effect said, I don't claim
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`filtering at the server level and that that was
`necessary to get by the patent.
`I thought this was a very significant
`argument because this is -- this is one of those rules
`that I think is really quite sensible. You can't get a
`patent by saying that a piece of prior art isn't covered
`by your patent, and then turn around later on and say,
`oh, yes, but that area of the prior art is within the
`patent. All right.
`Now, during the patent prosecution process
`the patent examiner rejected some claims in the '316
`patent as being anticipated by the Freeman patent. I
`don't -- was it -- '227 patent. Yes.
`And the applicant for the '316 distinguished
`the Freeman patent, and the defendants here claim that
`the distinction that the applicant invoked demonstrates
`that the '316 filtering occurs, must occur at the user
`level rather than the server level.
`Well, I looked at this carefully because I
`consider it to be unimportant argument, and I can say
`with complete confidence that if the applicant had
`indeed said in order to get over the Freeman patent I am
`pointing out to you that the filtering, the use of the
`configuration information is all done at the user level,
`not at the server level and that's how I get by the
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`Freeman patent, then it wouldn't matter totally to me
`how much the configure -- how much the specification
`said because they're changing it, and my recollection is
`that lots of this happens without the specification ever
`getting changed.
`I have seen this again and again. I don't
`know why in the PTO they don't require -- they do, but
`they don't succeed always in ensuring that the
`specification is consistent with positions that were
`taken in the course of the prosecution.
`But anyway, so I looked at this carefully.
`The applicant for the '316 patent distinguished Freeman
`in a number of ways, pointing out that the operating
`system in Freeman remains on the server, and the user's
`computer simply displays the web page.
`The '316 patent, of course, the user system
`receives the diary program that is run by the browser in
`the user system, and the browser then receives diary
`information comprising content data and configuration
`information. I mean clearly the user has the
`configuration information.
`It could do with that configuration
`information the filtering, but it isn't required to
`either by, so far, as I found, either by the claims
`themselves or by the specification.
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`MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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`Indeed, in the specification I found that it
`explicitly embraces filtering at the server stage. So
`the program at the browser in the '316 receives the
`diary information comprising content data and
`configuration information, and the program displays at
`least one diary page in accordance with the received
`diary information, as the claim says.
`The applicant went on to point out that the
`36 -- well, that's not from the claim. I am quoting
`from the office action -- from the letter in response to
`the office action, but it's in both.
`The applicant went on to point out that the
`'316 patent separates the content data from the format
`in which it is presented allowing one to be changed
`without the others. So that's how the Freeman patent
`was distinguished.
`But in doing that, I didn't see, and I
`concluded that they did not disclaim any embodiment in
`which the filtering occurs at the server level. The
`file wrapper states that in the '316 patent the diary
`program on the user's computer receives the diary
`information comprising content data and configuring
`information, and it displace the diary page in
`accordance with the diary information.
`Of course, an inference could be that the
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`diary program uses the configuration information to
`filter the content data on the user's computer, but it
`doesn't disclaim the possibility that filtering can
`occur at the server level.
`It doesn't disclaim the possibility that the
`diary program receives the content data that has already
`been filtered and combines that content data with the
`page layout information on the user's computer to create
`the page. So whether you did the filtering at the
`server or at the user, the program would create the
`diary page in accordance with the received diary
`information.
`
`So, in the end, I conclude that although --
`although the claim terms do refer to sending the
`configuration information to the user, that doesn't end
`the dispute. That certainly suggests that it can be
`done at the user level but it doesn't require it because
`there is it another reason for sending the configuration
`information to the diary page owner.
`So then I go to the specification as the law
`requires and as I have already indicated. There I find
`that the specification not artfully, inartfully
`discloses that it embraces as a variation that filtering
`or use of the configuration data can also be done at the
`server level.
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`And then the argument that the defendant, I
`beg your pardon, that the applicant is somehow estopped
`from claiming that in virtue of what it gave up to
`overcome a piece of prior art, my conclusion after
`studying that documentation is that the distinguishing
`of the Freeman patent did not rest upon any disclaimer
`or giving up of filtering at the server level.
`So, in summary, I think that the definition
`offered by Rembrandt prevails on the two terms that
`involve the use of the configuration data.
`Specifically, what that means is that -- and I'll read
`those now, "Configuration information for controlling
`the behavior of a cohesive diary page." That's the
`language from the claim, and the definition is
`"Information that determines what information will be
`displayed to a user who is viewing a cohesive diary
`page."
`
`And the next term that involves the same
`filtering issue that is the locus of the filtering is
`"Assembling the cohesive diary page by dynamically
`combining the content data and the page design in
`accordance with the configuration information."
`And the definition is "Forming the cohesive
`diary page to be displayed by combining at the time of
`display the content data with the page design to
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`generate a page definition that is in compliance with
`the configuration information."
`Now, that leaves one final issue, and that
`is the definition of "transfer script." And here the
`parties' dispute focuses on whether the term "transfer
`script" should specify that the transfer script is only
`executed in response to a request to ad an AUA.
`Plaintiff argues that the claims make no such limitation
`and that a transfer script can be executed before any
`request is made to an AUA to the AUA database.
`The defendants respond that the procedure
`for running the transfer script in advance of a request
`to add an AUA is not taught, supported or suggested
`anywhere in the intrinsic record, and it's illogical
`because under this definition a transfer script would be
`executed even when no transfer occurred. And they also,
`defendants also argue that it's contradicted by the
`embodiment in the specification.
`In the end -- well, before I get there, I
`think it's important to remember that the scripts are
`programs -- applets are the same thing -- the parties
`agree on the meaning of "script," so the dispute here is
`really what is, what is the function of "transfer"
`there.
`
`Transfer is used in several location in the
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`claims, and what the defendants want to do is to read
`that the request to add an AUA, it's a trigger for
`execution of the script that the plaintiff says is not
`in the claims anywhere.
`In the end, I've concluded that that is the
`correct result, that the definition offered by the
`plaintiff is correct, because the claims do not require
`that the transfer script only be executed in response to
`a request to add an AUA to the AUA database. So the
`"transfer script" is adequately defined as a script that
`generates a request for a transfer applet from server
`memory that is executed by a browser.
`That completes what I wanted to accomplish
`today i
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